The English Parliament in the Middle Ages

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THE ENGLISH PARLIAMENT IN THE MIDDLE AGES

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THE ENGLISH PARLIAMENT IN THE MIDDLE AGES H. G. RICHARDSON M.A., B.Sc., F.B.A.

and G. O. SAYLES D.Litt., LL.D., F.^.A.

The Hambledon Press 1981

Published by the Hambledon Press 35 Gloucester Avenue London NW1 7AX

ISBN 0 9506882 1 5 © H. G. Richardson and G. O. Say les

British Library Cataloguing in Publication Data Richardson, Henry Gerald The English Parliament in the Middle Ages. 1. England. Parliament - History 2. Great Britain - Politics and government 1154-1399 I. Title II. Sayles, George Osborne 328.42'09 JN515

This volume contains 560 pages

Printed and Bound by REDWOOD BURN LIMITED

Trowbridge and Esher

CONTENTS Separate authorship has been denoted by (H.G.R.) or (G.O.S.): otherwise the articles are of joint authorship

I II III IV V VI VII VIII IX X XI XII XIII XIV XV XVI XVII XVIII XIX XX XXI XXII XXIII XXIV XXV XXVI

Contents v Foreword by G. O. Say les ix-x The Origins of Parliament (H.G.R.) 146-178,172-176 The Earliest Known Official Use of the Term 'Parliament' 747-750 The Provisions of Oxford, 1258. 3-33 Representation of Cities and Boroughs in 1268 (G.O.S.) 580-586 The Parliament of Edward I 129-155 The King's Ministers in Parliament, 1272-1307 529-552 The Sources of Two Revisions of the Statute of Gloucester, 1278 (G.O.S.) 467-474 The Clergy in the Easter Parliament, 1285 220-234 MedievalJudgesasLegalConsultants(G.O.S.) 247-254 The Seizure of Wool at Easter 1297 (G.O.S.) 543-547 Parliamentary Representation in 1294, 1295 and 1307(G.O.S.) 110-115 The Parliament of Carlisle, 1307: Some New Documents 425-437 The Scottish Parliaments of Edward I 300-319 The Guardians of Scotland and a Parliament at Rutherglenin 1300 (G.O.S.) 245-250 The Irish Parliaments of Edward I 128-147 The Parliaments of Edward II 71-89 The King's Ministers in Parliament, 1307-1327 194-205 The Parliament of Lincoln, 1316 105-107 The Exchequer Parliament Rolls and Other Documents 129-159 The Custody and Publication of the Parliament Rolls xviii-xxxiii The Parliaments of Edward III 65-82,1-19 The King's Ministers in Parliament, 1327-1377 377-399 Parliamentary Documents from Formularies 147-162 The Commons and Medieval Politics (H.G.R.) 21-48 The Early Statutes 1-56 Parliaments and Great Councils in Medieval England 1-49 Index 1—14


The articles reprinted here first appeared in the following places and are reprinted with permission. I II III IV V VI VII VIII IX X XI XII XIII XIV XV XVI XVII XVIII XIX XX XXI XXII XXIII XXIV XXV XXVI

Transactions of the Royal Historical Society, Fourth Series, Vol. XI, 1928. Revised version, reprinted here, in Essays in Medieval History, ed. R.W.Southern, (1968). English Historical Review, LXXXII (1967), 747-750. Bulletin of the John Rylands Library, XVII (1933), 3-33. English Historical Review, XL (1925), 580-585. Bulletin of the Institute of Historical Research, V (1928), 129154. English Historical Review, XLVI (1931), 529-550. English Historical Review, LII (1937), 467-474. English Historical Review, LII (1937), 224-234. Law Quarterly Review, LVI (1940), 247-254. English Historical Review, LXVII (1952), 543-547. Bulletin of the Institute of Historical Research, III (1926), 110115. English Historical Review, LIII (1928), 425-437. Scottish Historical Review, XXV (1928), 300-317. Scottish Historical Review, XXIV (1927), 245-250. Proceedings of the Royal Irish Academy, vol. XXXVIII (1929) C. 128-141. Bulletin of the Institute of Historical Research, VI (1928), 7188. English Historical Review, XLVII (1932), 194-203. Bulletin of the Institute of Historical Research, XII (1934), 105107. Bulletin of the Institute of Historical Research, VI (1929), 129153. Rotuli Parliamentorum Anglie Hactenus Inediti, Camden Soc., Third Series, Vol. LI (1935), xviii-xxxii Bulletin of the Institute of Historical Research, VIII (1930), 6577; IX (1931), 1-18. English Historical Review, XLVII (1932), 377-397. Bulletin of the Institute of Historical Research, XI (1934), 147162. Transactions of the Royal Historical Society, XXVIII (1945), 21-45. Law Quarterly Review, L (1954), 201-223, 540-571. Law Quarterly Review, LXXVII (1961), 213-236, 401-426.


FOREWORD IN 1925 my first contribution to parliamentary history appeared in the English Historical Review, in 1928 H. G. Richardson's in the Transactions of the Royal Historical Society. In between those years we came across each other by accident and found that our approach to the historical parliament was somewhat unusual, that of historians of law. One of us had been led to the investigation by a study of the English courts of law, the other by a study of the parliament of Paris. Finding that our views were very similar, we agreed to collaborate in writing the history of the medieval parliament of England to show, in particular, that this was not identical either with the history of popular representation or the history of the house of commons, and we were promised generous financial support for that purpose and instant publication. Yet in the end the book was not completed. Looking back over the last fifty years I think that we were too pernickety and fastidious -1 would like to say perfectionist - in our attitude. Since my guide and counsellor in research, Professor A. F. Pollard, had in 1920 likened, alas erroneously, the parliament rolls of Edward I in their content to the unpublished king's bench rolls (Evolution of Parliament, p. 35), it seemed that these must be closely studied: hence my start to the Select Cases in the Court of King's Bench (7 vols.: 1936-1974). Parliament rolls, hitherto ignored, and subsidiary documents thereto must be found and edited: hence the Rotuli Parliamentorum Anglie Hactenus Inediti (1935). The origins of petitioning in parliament must be investigated: hence the Select Cases in Procedure without Writ (1941). Practices, once known but discarded in the English parliament, had continued in use in Ireland: hence Parliaments and Councils of Medieval Ireland (1947) and The Irish Parliament in the Middle Ages (1952). Indeed, so puzzled were we by problems connected with the position of the lower clergy in parliament that we even began a History of Convocation from that angle. Meanwhile we wrote, together or singly, many articles in a wide spread of periodicals until 1967, exactly forty years after we first met. The grand design being no longer possible with Richardson dead in 1974 and myself reaching four score years, I have agreed to comply with what was urged by, among others, Professor Pollard in 1942 (English Historical Review, LVII. 204) and Professor R. L. Schuyler in 1952 (The Making of History, p. 109) and to bring the scattered papers on parliament together in a single volume and allay the natural exasperation of scholars who have had

to seek their information here and there all over the place. I have ventured to include three short papers which show so succinctly and vividly the working of the medieval bureaucracy against which the aristocracy was to react so violently in parliament under Edward II. It is true that our conclusions, while generously welcomed, were not everywhere approved, for they defaced too much the idols of the reigning gods. But it is well-nigh impossible to eradicate a national myth about the political significance of the lower house of commons from the very emergence of parliament in our history until the commons' triumphant seizure of the initiative for the first time in the seventeenth century and, in face of our critics, we have been content to stand, in Roy Campbell's phrase, like 'twin Sebastians, each in his uniform of darts'. Our exposition is now brought between two covers so that it may be easily ascertained what in fact we did teach. Notes have been added to remove any ambiguous references and to bring the work more up to date: for example, rolls which we read in manuscript have since been edited or calendared; and the analysis of the early parliament rolls has been extended to cover the stray membranes brought to light in recent years. For permission to reproduce these articles I am indebted to the publishers and editors of the English Historical Review, the Bulletin of the Institute of Historical Research, the Scottish Historical Review, the Law Quarterly Review and to the Royal Irish Academy and the Council of the Royal Historical Society. Throughout the long years in which we sought for documents that would shed light upon the history of parliament we received many kindnesses from custodians of manuscripts in many places. If I do not mention their names here it is because so many of those to whom we were personally indebted have passed out of the reach of any expression of gratitude. In compiling the Index I was able thankfully to call upon the expert services of my daughter Hilary at the Kunsthistorisch Instituut in Utrecht. The initial stimulus to produce this book came from Mr Martin Sheppard and without his zest and encouragement it would not have come into existence. Crowborough Sussex

G. O. S.

I

The Origins of Parliament I. THE WORD The antiquities of the word parliament have not been neglected either by lexicographers or by constitutional historians. The latter usually mention Jordan Fantosme and various thirteenth-century chroniclers; while the articles parlamenttim in the Glossarium of Ducange and parlement in Godefroi's Dictionary are instructive although meagre in their references to record sources. But after he had studied all the references of historians and dictionary-makers, the enquirer might well be puzzled to know why certain sessions of the English king's court should in particular be called parliaments by the royal clerks. We may, however, get some way towards a plausible explanation by filling in a few of the gaps in the chain of references. For a full explanation we need to look at the working of parliamentary institutions; but that is a further step. The earliest document in which the word parlement is preserved seems to be the Chanson de Roland, which comes to us from the latter part of the eleventh century. The emir Baligant says to the dying king Marsile: 'Ne pois a vos teñir lung parlement'' — 'I cannot hold long parley with you.' This meaning of'parley', 'conversation', long clung to the word: but about the same time as the Chanson was first sung in England, parliament was being used with a different meaning in Italian cities, for a general meeting of the citizens, a folkmoot as Englishmen, or at any rate Londoners, would have called it.2 We are here a step, it may be only a little step, nearer the meaning of parliament in the rolls and writs of thirteenth-century English kings :-for in those early days the parlamento of an Italian city was an assembly with some real functions; 3 1

Line 2836. The earliest instance of the use of the word with which I am acquainted occurs in Caffaro, Anuales, s.a. noi (Monnmetita Germariiae Historica, Scriptores, XVIII, 13); later instances will be found, s.a. 1147 (ibid,, p. 36), and in Ármales Pisani (1158-60) (ibid., XIX, 244 f.). This general assembly of the commune had a variety of names: cf. Fertile, Storia del Diritto Italiano, II, i, 50 f. 3 Cf. Fertile, op. at., II, i, 168 ff., VI, 53. 2

The Origins of Parliament

I 147

it was, like the folkmoot, a court, a tribunal, as fully representative as possible of all the citizens. In the second half of the twelfth century the word was being used for other assemblies, for meetings of an emperor's or a king's court. So we find it used by Otto Morena when speaking of the diet of Roncaglia held by Frederick Barbarossa in 1154,' by Guernes de Pont-SainteMaxence when speaking of the council of Northampton in ii642 and by Jordan Fantosme when speaking of a council of William the Lion in 1173.3 So also it is used by Wace to describe a meeting between Richard I, duke of Normandy, and Lothaire, king of France,4 as well as the assembly in which Harold took his oath to duke William.5 Wace, it should be remarked, employs parlement also in the sense of conversation,6 and Guernes de Pont-Sainte-Maxence applies the word to interviews between Louis VII and Henry II and between Henry and Becket.7 Here, however, it might be suggested, and perhaps correctly, that an interview between Louis and Henry takes place in the French king's court and an interview between Henry, and Becket in the English king's court and that each meeting is a very special and solemn one. Guernes, Jordan and master Wace were writing history, albeit in verse. A more considerable poet, Jean Renart, was writing a deal of verse about court life at the end of the twelfth and the beginning of the thirteenth century:8 he often found it convenient to use parlement to end a line. So he uses it several times for an imaginary diet of an Man. Germ. Hist. Serif tores, XVIII, 591. On these diets, which were held at irregular intervals throughout nearly the whole of the twelfth century, and ceased in 1194, see A. Solmi, Le Diete imperial! di Roncaglia, pp. 52 if. 2 La Vie de Saint Thomas le Martyr (ed. E. Walberg), p. 56. 3 Chronicles of Stephen, Henry II and Richard I (Rolls Series), III, 226. 4 Roman de Rou (ed. Andresen), I, 168, 172 £F. * Ibid., H, 257 f. 6 Ibid., H, 256,1. 5652. The word 'parliament' in any sense does not occur in any of Wace's written sources. 7 La Vie de Saint Thomas le Martyr, pp. 128, 134-7. 8 On Jean Renart's life and works, see Ch. V, Langlois, La Vie en France au mayen age . .. d'après des romans mondains du temps (1926), pp. xxvi, 36 ff., 72 ff., 341 ff., and the introduction by L. Foulet to Calerán de Bretagne (1925). 1

I 148


imaginary emperor at Mainz and for another imaginary assembly at Rome. In the former meeting, which has been primarily summoned to enable the emperor to obtain the approval of his barons to his marriage, the heroine of the tale demands justice of the emperor's seneschal:1 and in the other meeting the Romans assemble after the death of one emperor to choose another in the person of the hero.2 But not only does Jean Renart apply the word parlement to the emperor's court, he applies it also to the court of a very humble lord, who, he says, held parliament just as if he had been a man of exalted rank.3 A little earlier we have been told that the emperor convened parliaments for the pleasure of having a crowd of barons around him:4 we must not forget that a parliament may have its festive side.5 Jean Renart, it should be remarked, does not use parlement exclusively in the sense of a meeting of a court: he uses it also to mean 'parley' or 'conversation'.6 It will be convenient next to examine the use of the word in four chronicles, all written by contemporaries of Jean Renart and all dealing with contemporary history: the continuation of William of Malmesbury's Gesta Regum found in the Liber de Antiquis Legibus, written in Latin;7 the history of William the Marshal, in French verse;8 the history of the kings of England9 and the chronicle of the kings of Guillaume de Dole (ed. Servois: Soc. des Anciens Textes Francais), pp. 135 ff. 1 L'Escoufle (ed. Michelaut and Meyer: Soc. des Anciens Textes Francais), p. 256. 1

3

Guillaume de Dole, p. 55.

4

Ibid., p. 18.

5

See the testimony of Geoffroi de Beaulieu to Saint Louis' hospitality: in parliaments et congregationibus militum et baronum, sicut decebat regiam dignitatem, liberaliter et largiter se habebat (Historiens de la France, XX, 12; so also Joinville (ed. N. de Wailly), p. 394). 6 Calerán de Eretagne, pp. 78, 104; Le Lai de I'Ombre (ed. Bédier: Soc. des Anciens Textes Francais), p. 35. 7 Liber de Antiquis Legibus (Camden Soc.), p. 197.1 incline to think that this was written not much later than 1217; one passage, which looks like an insertion (p. 204), refers to 1225, 8 L'Histoire de Guillaume le Maréchal (Société de l'histoire de France, 18911901). 9

Histoire des Dues de Normandie et des Rois d'Angleterre (Soc. de l'histoire de France, 1840).

The Origins of Parliament 1

I 149

2

France, both perhaps by the same author and both written in French prose. The first of these writers gives the name of parliament to the meeting which was held at Bonmoulins in 1188 between Philip Augustus, Henry II and Richard.3 Again he uses the word for the meeting at Staines in August 1215, where the bishops and barons waited in vain for king John: perhaps we can perceive in his choice of words the implication that it is in parliament that a king should meet his barons.4 The historian of William the Marshal also gives the name of parliament to meetings between the kings of England and France,5 as well as to a parley between Louis of France and the Marshal and their parties,6 and to a parley or conversation between four people.7 But he uses the word further for an assembly of the knights and men of the earl in Ireland,8 and for the meeting at Worcester in March 1218, at which Llewelyn did homage and which was attended by the legate, bishops, earls, barons and sheriffs.9 The usage of the writer of the Histoire des Rois d'Angleterre is similar to that of the other two writers. It is however notable that the assembly of barons at Soissons called by Philip Augustus in April 1213, is termed a parliament,10 as is also the meeting at 1

Chronique franâise des Rois de France par un anonyme de Béthune in Historiens de la France, XXIV, 754 if. 2 The same author appears to have written both the Histoire . . . des Rois d'Angleterre — the Histoire des Dues de Normandie is borrowed matter — and the Chronique des Rois de France. See Man. Germ. Hist., Scriptores, XXVI, 699, and Historiens de la France, XXIV, 751 if. 3 Liber de Antiquis Legibus, p. 199.

Ibid., p. 202: apud Stanes captum est parlamentum, ubi predictus Archiepiscopus et fere omnes Episcopi Anglie et predicti Barones convenerunt et fecerunt ibi moram per tres dies continuos. Idem vero Rex absentavit se et noluit ibi venire. 5 Guillaume le Maréchal, I, 301, 322 (meetings between Philip Augustus and Henry, May 1188, July 1189); II, 46f. (proposed meetings between Philip Augustus and Richard, 1198-9), 68 (meeting between Philip Augustus and John, 1201). 6 Ibid., II, 273, 277. 7 Ibid., II, 191: N'ont que ces quatre al pallement. 8 Summoned by Meiler fitz Henry the justiciar; ibid., II, 129, 131. 9 Ibid., II, 279. Cf. p. 282,1. 17872, where the word is applied to an assembly held after Michaelmas, 1218; see the note to this passage, ibid.. Ill, 252. 4

10

Histoire des dues de Normandie et des rois d'Angleterre, p. 120.

I 150


Staines in June 1215, at which king John 'gave his charter to the barons'.1 The word is applied too to a meeting at Reading in December 1213, 'entre le roi et le clergie',2 a meeting which seems to have been attended by the magnates,3 and also to a meeting of king and barons early in 1215.4 Parlement is equally used for meetings of the barons opposed to John,5 for meetings between Louis and the legate,6 for various meetings for negotiating peace,7 and for a final gathering at Canterbury where the legate imposed penances upon Louis and his followers.8 As we should suppose, the Chronique des Rois de France shows a similar usage: the assembly at Soissons in 1213 is a parliament,9 and a meeting at Winchester between Louis and the legate.10 Another contemporary chronicler, GeofFroi de Villehardouin, employs parlement for an assembly of crusaders11 and a similar usage is found in Arnold fitz Thedmar's chronicle written fifty years or so later.12 We also find the word used in the sam: period for a legatine council in I24013 and a meeting of convocation in I204.14 And one who was writing early in the fourteenth century but whose mind and language were formed in the thirteenth, Jean, sire de Joinville, was still using parlement with at least three meanings. He speaks of the parliament held by the barons at Corbeil in 1227, a meeting which was certainly not held with any legal authority.15 And when he is relating how, to escape the jealousy and vigilance of queen Blanche, king Louis and queen Marguerite used to meet secretly on a privy stair Ín the palace at Pontoise, Joinville says that they held their parliament there — Histoire . . . des Rois d'Angleterre, pp. 149 f. This is, of course, the 'parleamentum de Runemede' of the Close Roll (Close Rolls (1242-7), p. 242). 2 Ibid., p. 125. 3 Wendover, Chronica (ed. Coxe), III, 276. 1

4

5 7

Histoire .. . des Rois d'Angleterre, pp. 146 f. Ibid., p. 145. Ibid., pp. 197 ff.

6 8

Ibid., pp. 176 f. Ibid., p. 205.

» Historien* de la France, XXIV, 765. '° Ibid., p. 772. La Conquête de Constantinople (ed. Bouchet), pp. 10, 30. 12 Liber de Antiquis Legibus, p. 131. 11

13 Annales Monastiti (Theokesb.), I, no; this may not be strictly contemporary.

14 15

Bishop Bronescombe's Register, p. 218. Histoire de Saint Louis (ed. N. de Wailly, 1874), p. 42.


I 151

1

'il tenoient leur parlement'. But he also speaks of parliaments which are undoubtedly judicial sessions of the king's court.2 It is clear, of course, that behind these varied meanings there is a common concept: where there is parliament there is conversation, discussion, debate. And a parliament which is at the same time a court is one at which, originally at all events, there is discussion or debate, at which there is something like free speech and free speaking. Such a court is of a very exceptional kind: and if it looks very much like a modern parliament, it looks rather unlike the ordinary court of law, modern or medieval, or such a parliament as is described for us in the Stilus Curie Parlamenti of Guillaume du Breuil, tlie parlement of Paris as it existed in the third decade of the fourteenth century.3 But by that time the parlement had developed into something different from what it had been in the days of Saint Louis. There was much that was patriarchal about Saint Louis'justice: the descriptions that his contemporaries have given us leave no doubt of the intimacy of king and subject in his parliaments;4 and there is still intimacy, or at least informality, in the parliaments of Edward Is and, it is to be supposed, in the parliaments of Henry III, however much charged these parliaments may be with legal and administrative business. But already these parliaments have a long history behind them; the forces which were to change the parliaments of Louis IX and Henry III almost out of recognition had already been at work for many years. The parliaments of Philip Augustus, of Henry II 2 Histoire de Saint Louis, p. 332. Ibid., pp. 370, 394. This treatise was completed by May 1332; see Introduction, p. vii, to Aubert's edition. 4 Besides Joinville's well-known description (Histoire, ed. Wailly, p. 370; Langlois, Textes relatifs a l'histoire du Parlement, pp. So if.) and Geoffroi de Beaulieu's statement of how Louis entertained his barons at his parlements (Historien! de la France, XX, 12), we have such anecdotes as that told by Guillaume de Chartres of the overdressed lady who, on the occasion of one parlement, with a few others went with the king from the curia to the camera (ibid., XX, 33), and that told by Guillaume de Saint Pathus of the arrest of the comte de Joigny 'en un plein parlement' at the king's order (Vie de Saint Louis (ed. Delaborde), p. 148). 5 Cf. Parliamentary Writs, I, 131 f.: a petitioner hands a petition to Edward himself; Year Book 3 Edward II (Selden Soc.), p. 196: Bereford's story of a parliament of Edward I. 1

3

I 152


and their contemporaries, had been great councils, plenary meetings of a feudal court, called for the purpose of discussing matters of exceptional importance: so much at least the chroniclers tell us. If perhaps justice was administered at these assemblies, it was, we may be sure, justice of a very exceptional kind.' The word parliament slowly made its way into formal and official documents. At first it was regarded as vulgar or at least inelegant, a bad substitute for colloquium,2 and therefore, however frequently poets or chroniclers might use the word, it is not to be expected in official documents'of the highest class until men had become accustomed to its use. It will not, however, have been overlooked that writers about the year 1200 seem to have taken it as a matter of course that lords of every degree might hold parliaments — not only parleys but parliaments that were, in the formal sense, courts. And the earliest official documents which use the word with this meaning come from minor lordships. About the year 1210 William de Hauville confirmed to the abbey of St. John at Colchester certain lands and their appurtenances: the boundaries were delimited by dikes and marks and these had been formally pointed out in a parliament held by the abbot and William. This parliament looks like a court: there are prud'hommes, probi homines, present who are expressly mentioned. It may be the court of the abbot or a joint meeting of the abbot's court and William's; but the scribe had very little Latin and he is not very successful in conveying his meaning.3 Not many years earlier or later William the Marshal was Cf. Stubbs, Constitutional History, I, 645 if. For a case under John see p. 161 below. For France, see the cases collected by Langlois, Textcs relatifs a I'histoire du Parlement, pp. 21 ff.; but not all of these seem to have come before plenary meetings of the court. Cf. Luchaire, Histoire des Institutions Monarchiques, I, 310. The story of the wicked seneschal told by Jean Renart (above, p. 148) also suggests that it was in exceptional cases only that judicial functions were exercised in parliament. 2 'Colloquium quod vulgo dicitur parlamentum': lohannes de lanua, Catholicon, s.v. colloquium. Note that here the word is equated with both consilium and concia. 3 Colchester Chartulary (Roxburghe Club), II, 355. Since William fitz Fule, 'vicecomes Essexe', is a witness, the charter must be dated 19 May 12081


I 153

granting a charter to his burgesses of Haverford, and in it he requires them to come in a body to his parliament or to his host whenever he or his bailiff shall hold the one or summon the other: the burgesses may leave behind only sufficient men to keep the town safely.1 And not many years later again Gilbert de Clare, earl of Gloucester and Hertford, was granting a charter to the abbey of Margam, and again there is mention of parliament and host. It seems that those coming to the one or the other had imposed upon the hospitality of the abbey; henceforth the abbey was to provide bed and board only according to the ancient customs and assizes as they had been observed in the time of the earl's 'ancestors.2 Fortunately we know something of this parliament in the time of Richard de Clare, Gilbert's son. It was a meeting of the court of the county (we cannot call it a county court) and clearly a specially full meeting of the court at which the earl is likely to be present as well as other exalted persons. At one such meeting the earl had ordered a local baron to be arrested on a charge of treason, and it is because of that quarrel, which came into the king's court, that we get some detailed knowledge of the earl's parliament.3 It is of interest to compare these local Welsh parliaments and the duty imposed upon the burgesses of Haverford to go 'ad parliamentum vel in exercitum' with the contemporary local parliaments in Italy and the duty imposed upon Italian townsmen in almost identical words.4 And 29 September 1213, between which dates he acted as substitute or under-sheriff for Aubrey de Veré. 1 Cal. Charter Rolls, IV, 327; see also Archaeologia Cambrensis, 4th Series, X, 96 f.; ibid., Original Documents, II, xxxviii. 2 Cartae de Glamorgan, II, 360 (No. ccclxi). 3 Curia Regis Roll, No. 159, mm. 2, 10 f. Partly printed Cartae de Glamorgan, II, 547, and Archaeologia Cambrensis, 4th Series, IX, 241, from a partial transcript in Cott. MS., Vitellius C.X. See also Cartae de Glamorgan, II, 543, 562. 4 Cf. A. Theiner, Codex Diplotnaticus Dominii Temporalis S. Sedis, I, 35 (No. xliii): tam vos quam omnes qui sunt de vestro districto, nobis et successoribus nostris et ecclesie Romane fidelitatem curabitis universaliter exhibere, expeditionem, parlamentum, pacem et guerram ad mandatum nostrum et legatorum et nuntiorum nostrorum per totam Marchiam bona fide iuxta proprias facúltales vestris expensis faceré. . . . This is dated 23 November 1200. For later documents see ibid., 41, 129; Man. Germ. Hist., Epístolas Saeculi xiii e

I 154


it is well to realise that we have to do with a development common to Western Europe, to such widely different environments as the Welsh marches and the states of the Church.1 It was not long before the word parliament began to creep into royal records. In 1234 it appears in accounts of royal officers in France.2 In 1237 it appears on an English plea roll,3 in 1242 on the English close roll4 and in 1248 on the memoranda rolls of the exchequer.5 In all these cases parliament has the meaning of the king's court. In 1247 it appears in the accounts of the count of Poitiers6 for he had a parliament reresembling that of king Louis his brother. By the middle of the thirteenth century parliament was well on its way to make its fortune. It appears, in the technical sense of a special meeting of a king's court, more and more frequently in official records and more and more frequently in chronicles.7 Nevertheless for some time colloquium was preferred by the fastidious. It is probable that in this way we can explain the curiously fluctuating usage of the English chancery in the latter registris Pontificum Romanarían, I, 507; III, 107, 499, note 5. Cf. A. de Boiiard, Le Régime politique et les institutions de Rome au Afoyen Age, p. 214. 1 I do not, of course, suggest that there were close similarities in detail. For an account of the parlamento of Friuli see Fertile, Storia del Diritto Italiano, I, 342 ff. For the acta of this parliament see P. S. Leicht, Parlamento Ftiulano (R. Accademia dei Lincei): the first mention of parlamentum in these documents seems to be in 1290 (No. xxvi).

2

Historien* de la France, XXI, 233, 238.

For this entry and its significance see English Historical Review, xxxii. 747-5°. 3

4 5

Close Rolls (1237-42), p. 447.

E. 368/20 (L.T.R. Mem. Roll, 32 Hen. HI), mm. 4, 13.

Comptes d'Alfonse de Poitiers (ed. Bardonnet, Archives historiques de Poitou, IV), pp. 138,160,170. Cf. Borrelli de Serres, Recherches sur divers services publics, I, 292 f, 6

7

Among the St. Albans chroniclers Wendover scrupulously employs the word colloquium: his successor Matthew Paris has no hesitation in using the more popular word, although he seems never to have translated Wendover's colloquium into parlamentum in the chronicle he took over and revised. See the fifth volume of Coxe's edition of Wendover where Paris's alterations and additions are set out; see also Modern Language Review, IX, 92 £, for some remarks by A. B. White upon Paris's use of the word.


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years of Henry III. On the same close roll the parliament of Oxford is parleamentum and colloquium.1 Similarly it was not possible for the English chancery to speak consistently of the Scottish king's parliament either as parleamentum or colloquium.2 Again it is but rarely in the thirteenth century that parliament is mentioned in a writ of summons to parliament: of all the writs issued for the Hilary parliament, 1265, only those to the Cinque Ports appear to have contained it.3 But despite the objections of the old-fashioned, parliament, as we know, not only won its way into favour but became particularly attached to the curia regis. This transition we may illustrate by some rather curious London documents. In 1267 Henry III had forbidden that any should assemble parliament, conventicles or congregations whereby the king's peace or the peace of the city might in any wise be disturbed.4 From two cases in the mayor's court in 1299 we may learn unmistakably what such a parliament was that the king reproved: in the first case, a carpenter is charged with gathering together a parliament of carpenters at Mile End, the purpose being to oppose a city ordinance touching their craft; 5 in the second, seventeen smiths were charged with making a parliament and confederacy in contempt of the king and to the harm of the city. The purpose of this latter confederacy seems actually to have been that of an ordinary craft gild and the defendants were discharged, but for our purpose this is the significant fact: the prosecution founded their case upon the custom of England whereby no parliament relating to the kingdom can take place without the king and his council.6 But while it is true that by parliament, men by the fourteenth Close Roll, No. 73 (42 Hen. Ill), mm. 7, 8 (parleamentum), i\> (colloquium). Similar variations will be found in writs connected with the Easter parliament 1260 (Close Roll, No. 76, mm. I, ife, 2, 26). 2 See Scottish Historical Review, XXV, 300 f. Add to the references there cited a letter to the sheriff of Yorkshire which speaks of 'parleamentum suum captum apud Edeneburg' (Close Roll, No. 73, m. Sb). 3 Lords' Report on the Dignity of a Peer, III, 32 ff. For the later usage, see Bulletin of the Institute of Historical Research, VI, No. 17. 4 Liber de Antiquis Legibus, p. 98. 5 Calendar of Early Mayors' Court Rolls, p. 25. 6 Ibid., p. 33. 1

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century came naturally and usually to mean special sessions of the court of a king or some great lord,1 yet this was not its sole meaning even in official documents. We may note in passing the employment of the word for the general assembly of the moneyers of the oath of the Empire, a corporation that for authenticating its official acts used a common seal with this inscription, 'Sigillum Magnum Comune Parlamenti Generalis Constituti':2 and we may think how, but for the jealousy with which the name was reserved for the king's parliament, our city corporations might be calling certain of their meetings 'parliaments'. Another official usage very widespread, if not universal, was to give the name of parliament to meetings of potentates or representatives of different states or communities, especially meetings in a march or on the border. This usage certainly dates from the middle of the thirteenth century, since we find the word applied to the meetings between Alexander II of Scotland and Richard, earl of Cornwall, in I244,3 and to meetings between Llewelyn and the justice of Chester and other English representatives from 1256 onwards.4 Later we hear of dies parliamenti in the Welsh march which are also called dies amoris or dies Marchiae, that is meetings for the purpose of composing differences between marcher lords.5 About the same time the kings of France and Castile are stated to have held their parliament solemnly for six days and more.6 In Ireland parliaments are held between English lords and 1

There were, of course, several such in Italy. Besides those instances mentioned above (pp. 153 n. 4,154 n. i), parliament eo nomine is found in Monferrat in 1305 (A. Bozzola, Parlamento del Munfermto (R. Accademia dei Lincei), p. 3). In France there was the rather curious episode of the parlement of Charroux, instituted by Charles the Fair after he became comte de la Marche in 1314. It disappeared on his accession to the throne in 1322. See A. Thomas, 'Les Archives du comté de la Marche' (Bibliothèaue de ÏÉcole des Charles, XLII, 40 f.) and Le comté de la Marche et le parlement de Poitiers, p. lix. 2 Revue Numismatiaue (1844), pp. 104 ff.; Annuaire Soc. franâise de Numismatique, XIX, 108 ff. s Close Rolls (1242-7), p. 221; Cal. Patent Rolls (1232-47), p. 434; Cal. Does. Scotland, I, 300 ff. 4 Foedera, I, 339, 526; Shirley, Royal Letters, II, 329; Liber de Antiauis Legibus, P-955 Abbreviatio Placitorum,"p. 226; Cartas de Glamorgan, III, 869. 6

Historical Manuscripts Commission, Report on Various Collections, I, 257.


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1

Irish chieftains under march law. These are but a few examples out of a large number that could be cited, since the usage continued into the sixteenth century.2 It is easy to see how the usage originated from the examples which had been given from twelfth-century and early thirteenth-century writers. It is easy also to see the affinities between these solemn meetings for the settlement of disputes and the solemn meetings of the king's court consecrated to the settlement of internal discords and disagreements in the widest sense.3 Nevertheless we are not to suppose that there was necessarily confusion in the medieval mind between distinct institutions as they evolved and emerged in the thirteenth and fourteenth centuries. Nor can we impose our own categories upon medieval institutions and give and refuse the name of parliament because some assembly fulfils or fails to fulfil some fancied requirement imagined by a later age. Taken in its context medieval usage, at least in official records, is as a rule sufficiently precise and technical. Chroniclers, it is true, are more loose in their terminology, but we do not rely upon chronicles for legal technicalities if we are wise.

II. THE COURT Stress has often been laid upon the differences between the parliaments of different countries in Western Europe and in particular between the parliament of England and the parlement of Paris. Differences did indeed become marked in the course of the fourteenth century, but certainly in the thirteenth century contemporaries do not seem to have been struck by the differences between parliament and parlement.4 We cannot perhaps lay much emphasis upon the manner in 1 Cal, Judiciary Rolls (33-35 Edw. I), p. 385; Historical MSS. Commission, Tenth Report, App. V, 257, 260; Early Statutes of Ireland, pp. 378, 448. 2 A. F. Pollard, Evolution of Parliament, p. 32 note. 3 A letter from archbishop GifFard to the Pope in 1271 is very pertinent: 'quinimmo parliamentis secularibus oportebit frequentius intendere, iracundia témpora mitigare, reconciliare discordes et que pacis sunt, cum ordinatione regui, pro viribus procurare' (Letters from Northern Registers, p. 36). 4 Very early in the fourteenth century Pierre de Saint Pol, a citizen of Bayonne, is saying that he has ' sui ceste besoigne . . . iiij ans a touz les parlemcntz d'Engleterre et de France': Ancient Petitions, No. 14,432. For this

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which the name of parliament was caught up and applied to one body after another, although this has some significance. But when we find such a man as Humbert de Romans, Master General of the Dominican Order, the contemporary of Saint Louis and Henry III, grouping all parliaments together and prescribing the same kind of sermon to be delivered before them all,1 we are justified in believing that they all looked very much alike. It is the custom, he says, for great kings to hold parliaments at appointed times every year at which assemble many counsellors and many of the worldly great and many prelates. These parliaments are held for three chief purposes: that the more important public affairs may then after more searching consideration be the more wisely resolved; that account may there be rendered2 by the ministers of the realm; and that order may there be taken for the good government of the realm.3 He goes on to review the shortcomings to be found in parliament against which sermons may be preached: the crookedness of counsellors, biased judgements, the difficulty of obtaining justice, the denial of audience to the poor, the protection of evildoers and, in particular, evil ministers, the corruption of gifts, favouritism and malice. 'Nay, how shall such a court correct the ills of the whole realm, unless it shall first be itself corrected?' Doubt has been cast upon the historical value of this passage on the ground that it important case which illustrates the conflict of jurisdiction arising out of the Treaty of Paris of 1259 and the difficulty of the position of the French subjects of the English king, see Cal. Chancery Warrants (1244-1326), p. 398; Cal. Close Rolls (1313-18), p. 181; (1318-23), p. 390.

De Eruditione Praedicatorum, lib. II, tract, ii, c. 86, in La Bigne, Maxima BiUiotheca Veterum Patmm (1677), XXV, 559. 1

2 'Út ratio ibi reddatur': on this passage see Borrelli de Serres, Recherches sur divers services publics, I, 337. He argues, against Lecoy de la Marche and Ch. V. Langlois, that this has reference not to a financial account but to a report, compte rendu, by public servants of their administration. However little this passage may fit the parlement of Paris, if ratio is taken in the former sense, it might be argued that it would apply to the parlements of Alfonse of Poitiers which synchronised with the compoti (Molinier, Correspondance administrative d'Alfonse de Poitiers, II, pp. liv-lv), and to English parliaments until the meeting of which the settlement of accounts was not infrequently adjourned from 1248 onwards (below, p. 162). 3 ' Út ibidem ordinetur de Regno quod fuit ordinandum.'


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r

is simply a subject-head for a sermon: but, as we shall see, friars were busy in thirteenth-century parliaments2 and passed from one to another. And parliaments were public assemblies which gave opportunities for such things as the preaching of sermons and the publication of sentences of excommunication, and men saw no incompatibility in the intermixture. As evidence there may be vouched, on the one hand, the instructions addressed by Pope Clement IV in 1266 to the papal legate, Simon cardinal of St. Cecilia's: when it shall befall that he is present in solemn parliaments at Paris or elsewhere he is to publish the sentences of excommunication against those who have taken up arms against the king of England or in other ways disturbed that realm.3 On the other hand, we have the entry in the diary of Eudes Rigaud noting his sermon at the parlement at Paris4 and the well-known practice of preaching in the parliaments of fourteenth-century England.5 We can then, I suggest, safely accept Humbert de Romans as a reliable witness, the more so since there is a considerable amount of evidence from record sources testifying to the similarity of thirteenthcentury parliaments of different countries even in points of detail.6 Now whether he was writing, as seems to be assumed, towards the close of his career in the sixties or seventies of the century, or whether his treatise for the instruction of preachers was written at some earlier Borrelli de Serres, loc. at., calls it 'sujet d'homélie, qui ne peut d'ailleurs guère passer pour une source historique'. 2 Humbert himself seems to have sat as a member of tLe court in the parlement of the Nativity of Our Lady, 1258: Eckard, Scriptures Ordinis Praedkatorum, I, 148. 3 Summaries will be found in Registres de Clement ZF(ed. E.Jordan), p. 125, No. 426, and Cal. Papal Letters, I, 434. A transcript is in Add. MS. 15362, No. 92.1 quote the relevant passage (f. 344¿): ' Quocirca mandamus quatinus huiusmodi excomrnunicatiomim sentencias in sollempnibus Parlamentis, quibus Parisius et alibi te interesse contigerit per te ipsum sollempniter publices, et per alios in omnibus locis in quibus expediré videris et precipite ia locis marittimis, seu mari uicinis facias publicari.' Similar instructions were given to the archbishop-elect of Reims and the archbishops of Rouen, Tours, Bourges and Sens. 1

Registrum Visitationum (ed. Bonnin), p. 312. Stubbs, Constitutional History, III, 442 f.; Modus Tenendi Parliamentum (ed. Hardy), p. 31. 4

5

6

See below, pp. 172 S.


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period of his life, there is no doubt that Humbert was describing a new thing — very new if the book was the fruit of his early maturity: for parliaments, in the form in which he presents them, were unknown in the earlier decades of the thirteenth century. Throughout Western Europe it had been the custom for kings to hold solemn courts at the great festivals of the Christian year: there they wore their crown and there they took counsel. In England the multiplication of crown-wearings by Henry III appears to have brought the ceremony into disrepute and the practice was finally discontinued under Edward I.2 In France the custom ceased earlier, but in 1182 it still seems to be contemplated that the bishop of Beauvais may go annually to three courts of the French king.3 Perhaps too it was the strength of this tradition which determined Philip Augustus a few years later, on his departure for the crusade, to provide that three times a year during his absence a special court should be held at Paris by the queen and the archbishop of Reims, when the complaints of the people should be heard. It is quite clear that what were contemplated in especial were complaints against the iaillis who were to be present to report upon the affairs of their districts.4 But although we have here an institution which in some respects resembles the later parlement, no direct connection can be traced. The arrangements were purely temporary and provisional during the king's absence, and such notices as we have of meetings of the king's court in the early thirteenth century do not suggest the continuous existence of an organisation of the kind.5 In England the Mortier (Les Maitres Généraux, I, 659) states definitely that most of his works were written after his resignation, i.e. between 1263 and 1277. This is probable, but direct evidence seems lacking. 2 Traditio, XVI, 126-35. 3 Actes de Philippe Auguste (ed. Delaborde), No. 53. It is, however, to be noted that the clause dealing with this point is, like others, repeated from a charter of Louis VII, of 1144-5: see Antoine Loisel, Mémoires . . . de Beauvais (1617), pp. 271 ff.; Luchaire, Actes de Louis VII, No. 138. Cf. Luchaire, Histoire des institutions monarchiques de la France (1891), I, 263 f.; Pfister, Études sur le règne de Robert le Pieux, p. 149. 4 (Euvres de Rigord et de Guillaume le Breton (Société de l'histoire de France), 1

I, 101.

Cf. Borrelli de Serres, Recherches sur divers services publics, I, 290. See also the cases collected by Ch. V. Langlois, Textes relatifs a l'histoire du Parlement, 5


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position was similar: from time to time specially full meetings of the king's court were summoned, but, so far as we can perceive, upon no definite plan and at no stated terms, and principally it would seem for political business.1 But very early in the thirteenth century we have evidence to show that such afforced meetings of the curia regis might not only deliberate upon political questions but hear also actions at law which the court ordinarily attendant upon the king had not ventured to determine. In 1204 there was a dispute between William the Marshal, the countess of Meulan and the earl of Devon concerning the ownership of the manor of Sturminster. Perhaps it was because the parties were important people that the action was heard before the king himself, but the story was a tangled one and a decision was difficult, so the king adjourned the parties until the morrow, when they were to have right by counsel of his court. The Marshal appeared on the morrow (2 July) and again on the fifth day; the others did not appear. The king turned to his counsellors for advice, but they protested that they were so few and the circumstances so unusual that it would be better to defer the whole matter until the morrow of the Assumption (16 August) when the archbishop and the other great and wise men of the land would be able to be present. Finally a day seems to have been given to the parties for Thursday after the Assumption (19 August).2 Now upon that date there was an important meeting at Worcester, which apparently lasted several days, and to it came Llewelyn, prince of North Wales, and Madog ap Gruffydd under safe conduct in the company of the Marshal and the earl of Salisbury.3 There can be little doubt that here we have an example of the conjuncture of political and legal business at a plenary meeting of the curia regis. pp. 30 ff. Minor cases did undoubtedly find their way to the king's court, but not apparently in any systematic way nor presumably especially for consideration at a solemn or plenary meeting of the court: cf. Historiens de la France, XXIV, 284 f. (case in 1237), 389 (case in 1239-41). On the distinction between the ordinary and plenary sessions of the king's court, see Luchaire, Histoire des institutims monarchiques, I, 310. 1 2 Cf. Stubbs, Const. Hist., I, 612. Curia Regis Rolls, III, 124, 147.

Rotuli Litteramm Patentium, p. 44. See also Law Quarterly Review, XLIV, Il6f. 3

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As early as 1242 we have a writ upon the close roll in a form which later in the century will become very familiar: the writ permits John de Nevile to hold the bailiwick of Shotover and Stow Wood until the forthcoming parliament at London.1 This writ was perhaps not exceptional even at that time; but we seem to have no more writs of the kind recorded until 1248, when we may find" a writ upon the close roll directing that a distress is to be respited until the parliament on the octave of Candlemas,2 and also writs in similar terms noted on the memoranda rolls of the Exchequer.3 Such writs are not, however, very frequently recorded for a good many years.4 But these documents, however infrequently they may be enrolled, do point to a growing practice of referring to specially full meetings of the king's court, meetings that are coming to be termed parliaments, legal and administrative matters of detail as well as broad questions of politics or legislation. This, of course, is a feature which was preserved in the organised parliaments of the later thirteenth century, but when we seek to draw the links closer between these parliaments and the institutions of the twelfth century and early thirteenth century we find that the chain of evidence is difficult to complete. Partly, doubtless, this is due to the carelessness of record-makers and to the disappearance of many records that were made, but chiefly perhaps because some new elements were necessary to create an institution which, however much it might owe to the ideas of the past, owed much more to the circumstances and genius of the thirteenth century. The step to be explained is the transition from the occasional plenary sessions of the king's court held at no regular intervals to the regular and ordered meetings described by Humbert de Romans, to which the name of parliament is applied and which we find in existence from the middle years of the thirteenth century. The explanation has been advanced that in France this step was taken deliberately by Saint Louis with 1

2 Close Rolls (1237-42), p. 447. Ibid. (1247-51), p. 104. 3 E. 368/20 (L.T.R. Mem. Roll, 36 Hen. Ill), mm. 4, 13. 4 They appear to have been enrolled very unsystematically and do not appear in any large number until after the accession of Edward I: cf. Bulletin of the Institute of Historical Research, V, 129 if.


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a view to checking the corruption and misgovernment of the baillis, the evils of whose rule were disclosed in the great inquisitions of 1247 and 1248. According to this view the oversight which the king's court had exercised over local administration was no longer to be merely occasional and spasmodic but regular and ordered. Hence the regular sessions of the court, at first usually four times a year, to which the name of parliament becomes affixed.1 This may not be the whole explanation of the development of the parlement, but it seems to be a very large part of it. And the explanation appears to apply mutatis mutandis to England as well as to France. The first demand for regular parliaments in England, so far as we know, appears in the Provisions of Oxford of 1258,* where it is to be found side by side with a scheme for redressing the evils of local misgovernment. Although the actual task of redressing these evils fell upon the justiciar, yet he found it necessary to refer a number of difficult cases, perhaps a considerable proportion of cases, to parliament.3 The same idea that parliament exists to redress the evils which the ordinary courts cannot redress occurs again in the early years of Edward I. The statute called Rageman conceives of parliament as the centre of a system for repressing lawlessness and especially the abuse of power by 'bailiffs'. The general scheme of the statute is to give immediate relief to those who have been wronged, by sending justices on a special commission and by devising a special procedure outside the common law, and further to provide for bringing the offenders before the king in parliament when the justices also will have presented the results of their Borrelli de Serres, Recherches sur divers services publics, I, 290 f. Cf. Bémont, Simon de Montfort (1884), p. 351 :'Le conté dit que en la commune porveance fete par le roy et par son conseil est porveu que trois parlemanz soient tenuz par an.' The inference is that this requirement of the Provisions of Oxford was a new departure. 3 I have drawn attention to this point in Transactions of the Roy. Hist. Soc., IV Series, v, 56 ff.: other cases, besides those there mentioned, will be found in Assize Roll, No. 873, mm. 6, 7.1 strongly suspect that cases marked 'Loquendum cum Rege' or 'Loquendum', where there is no specific reference to parliament, not infrequently found their way there: Mr. E. F. Jacob believes such cases went to the council (Studies in the Period of Baronial Reform and Rebellion, p. 53), but this does not exclude a decision in parliament. 1 2


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enquiries. This statute is of uncertain date but comes from the period 1276 to I2y8.2 It was followed in 1285 by the statute of Winchester which required the justices to report to the king in parliament breaches of the provisions for maintaining the peace.3 The idea reappears under Edward II. In December 1309 special commissioners are appointed in each county to enquire into cases of tortious prises and gifts exacted from those spared from prisage: they are to hear complaints and to submit reports to the council in parliament the following February, when also those found guilty are to appear.4 Again the Ordinances of 1311 lay stress upon the hearing in parliament of wrongs done by the king's ministers and of breaches of the law committed by them.5 It is very dubious whether any of these measures was very effective. By the fourteenth century, perhaps already in the closing years of the thirteenth, such a conception of parliament was obsolescent: but the idea and its persistence are important when we are considering the origins of parliament. There is no doubt that in France regular sessions of the parlement on an ordered scheme began about the middle of the thirteenth century. The number of sessions gradually diminished with the pressure of business : session ran into session until finally in the fourteenth century one single session covered the whole legal year. This regular order was liable to be disturbed during periods of warfare or when there were other distractions such as a royal marriage, but it was always resumed.6 In England also there is no doubt that parliaments were held on a regular scheme of Easter and Michaelmas sessions in the early years of Edward I,7 and there is little doubt that this arrangement was founded Statutes of the Realm, I, 44. Cam, Studies in the Hundred Rolls, pp. 41 f. 3 Statutes of the Realm, I, 98. Cf. Ryley, Placita Parliamentaria, pp. 451 if.; Cal. Patent Rolls (1281-92), pp. 264 £; Bulletin of the Institute of Historical Research, V, 134 f. 4 Parliamentary Writs, II, ii, App. 24 f.: Cal. Patent Rolls (1307-13), pp. 248 ff., where the reference to parliament is omitted. 5 Rotuli Parliamentorum, I, 285 f., Nos. 29, 40. 6 Langlois, Textes relatifs a l'histoire du parlement, pp. 229 ff.; Ducoudray, Les origines Ju parlement de Paris, pp. 50 ff. 7 Bulletin of the Institute of Historical Research, V, 133 ff., 151 f. 1

2

The Origins oj Parliament

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upon the tradition of Henry Ill's reign, although the years of civil strife and the difficulties of settlement after Evesham were not favourable to the maintenance of a regular uninterrupted sequence of parliaments. Still, broken as the sequence might be, there is no question that in the later years of Henry Ill's reign it was the rule to hold several parliaments a year.1 It is not at all unlikely therefore that in its origin the English parliament owes something to ideas borrowed from France, although it is of course true that like problems in countries sharing a common civilisation may suggest like remedies. There cannot, however, be much doubt that other parliaments which were held periodically at regular sessions owe a great deal to conscious imitation, whatever differences in detail there may be. It is inconceivable that the parliaments of Alfonse of Poitiers do not owe much to the parliaments of his brother Saint Louis, however many may be the minor differences.2 The parliaments of Ireland are unquestionably modelled upon those of England :3 and the parliaments of Scotland not improbably owe a great deal to the same source.4 But we cannot perceive any feature in the parliaments of the Empire — even although there are close similarities in detail5 — which we can suppose to have been borrowed from elsewhere. Why then, we may ask, was the word parliament ever applied to these assemblies which we more usually term 'diet' and the Germans 'Reichstag'? Now, not only was parliament a court wherein personal wrongs were righted, but it had more general functions. This is well brought out in a letter addressed by Henry III in February 1260 to the council in England when he protested against a parliament being held in his absence. He refused his consent, but added that the justiciar to whose keeping the kingdom had been committed might, with their counsel, 1

Handbook of British Chronology, 2nd edn., 1961, pp. 505-6.

2

As against Boutaric, Molinier insists upon the differences between the parlements of Saint Louis and Alfonse (Correspondance Administrative, II, pp. xyviff.): he concludes (p. Ixv) 'ce parlement d'Alfonse est bien plutót un corps administratif qu'un organe judiciaire'. 3 See now Richardson and Sayles, Irish Parliament in the Middle Ages (1952). 4

Cf. Scottish Historical Review, XXV, 300 ff.

For the Imperial parliaments of this period, sec Ehrenberg, Der deutsche Reichstag, 1273-1378; see also below, p. 172. 5

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dispense universal justice (iustitia communis) to all and singular, provided that no new departure or law (noua mutatio siue ordinatio) was made in the kingdom without the king's presence and assent.1 Obviously it was recognised at that time that parliament had a dual function: the dispensation of the highest justice on the one hand; on the other, changes or reform in administration and law. It is possible that in requiring three parliaments a year the framers of the Provisions of Oxford had in mind a periodical review of administration, but in point of fact the burden of supervising administration fell upon the council and there is no evidence that parliament was greatly concerned with questions of detail, while it is clear that broad questions of policy and legislation were brought before it.2 This concern with what we may call politics was a feature common to all parliaments which have any claim to be called national, a characteristic to be discerned very much earlier than any attempt to use parliaments as a regular and ordered means of providing remedies for wrongs which would otherwise fail of redress or of obtaining counsel on difficult questions of administration.3 This is a feature which the Reichstag shared in common with other national assemblies.* It may be objected that the parlement of Paris was not a deliberative and political assembly, but was primarily and almost exclusively judicial in its functions : this indeed appears to be the view that holds the field today.5 But I venture to suggest that this view is mistaken and derives Shirley, Royal Letters, II, 155. For the activities of the council, see Powicke, 'The Baronial Council (1258-1260)' in Essays in Medieval History presented to T. F. Tout, pp. 119 fF. For the position which parliament was intended to occupy our best evidence is provided by the Provisions of Westminster (Annales Monastid (Burton), I, 477; cf. Jacob, Studies in the Period of Baronial Reform, p. 373). 3 This is not, of course, to say that legal decisions were not taken or administrative questions considered in exceptional cases at plenary meetings of the king's court: cf. Stubbs, Constitutional History, I, 401; Luchaire, Histoire des institutions monarchiques, I, 265 ff. 4 Ehrenberg, Der deutsche Reichstag, 61 ff. s Borrelli de Serres, Recherches sur divers services publics, I, 296. Cf. Langlois, Revue Historique, XLII, 90 f. But see Ducoudray, Les Origines du Parlement de Paris, pp. 3i6fF. 1

2


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really from the method employed in drawing up the surviving records of the parlement, those ancient registers which we know as the Olim. The greffiers responsible were interested only in legal precedents, and we can show from documents surviving in England that they could on occasion overlook entirely a session of the parlement at which political business was transacted. If we examine a table, such as that constructed by M. Ch. V. Langlois1 or M. Ducoudray,2 of the sessions of the parlement, we shall notice that in the year 1263, at a period when it was customary to hold four sessions a year, only three are recorded. Thus in the year 1261 there are sessions following Candlemas, Whitsun, the Nativity of Our Lady and Martinmas, and so also in the years 1260 and I259.3 In the year 1262 the Whitsuntide session was put off because of the celebration of the marriage of the king's son, and instead a session was held on the octave of the Assumption (22 August) which served also for the customary session in September after the Nativity of Our Lady. But in the year 1263 the session which should have taken place in September is altogether wanting.4 Now it so happens that in that year Henry III was summoned to a meeting of the parlement of the king of France on the quinzaine of the Nativity of Our Lady: the session was held at Boulogne, apparently to suit Henry's convenience, for in the days of Saint Louis the parlement was not tied to any one town.5 At that meeting there were discussed, so an English chronicler says, the details of a proposed crusade and the coronation of the French Textes relatifs à l'histoire du Parlement, pp. 229 fF. Origines du Parlement de Paris, pp. 50 f. 3 In this year the parlement sat at All Saints as well as at Martinmas: possibly the two sessions were continuous. 4 A table of the sessions of the parlement may make the position clearer: all sessions were probably at Paris except that of the Nativity, 1263 : 1259 Candlemas Whitsun Nativity B.V.M. All Saints and Martinmas I2ÓO Candlemas Ascension Nativity B.V.M. Martinmas 1261 Candlemas Whitsun Nativity B.V.M. Martinmas 1262 Candlemas Assumption Martinmas 1263 Candlemas Whitsun [Nativity B.V.M.] Martinmas It is possible that there was a special session late in Lent, 1261 : Eudes Rigaud, Regestrum Visitationum, p. 398; see below, p. 171, note 5. 5 Foedera, I, 432. 1

2

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king's son : ' and it was to this meeting that Simon de Montfort was summoned in a vain attempt by Saint Louis to effect a settlement of the differences between the earl and Henry.2 Such business, however, did not interest the greffier, and no note of the Boulogne session is to be found in the O/im. Again, if we may trust an English chronicler, it was at an otherwise unrecorded parlement of the Assumption in 1269 that Edward entered into his agreement with Saint Louis concerning the crusade.3 It is of course unlikely in any case that when Henry III or Edward attended the French parlement, either spent much time in hearing the trivial cases that fill the greater part of the registers. There is a wellknown story telling how Henry III kept the parlement waiting while he heard mass at every church in Paris on the way from his lodgings:4 however true this may be5 it is unlikely that the normal routine of the parlement would have been suspended to await the English king's arrival : if the parlement was kept waiting, some other business must have been afoot. We must admit the possibility that, under Saint Louis and perhaps under his immediate successors, the business of the parlement was, like the business of other contemporary parliaments, a mixture of the judicial, the administrative and the political.6 The reLiber de Antiquis Legibus, p. 57. So Guillaume de Nangis: rex Franciae Ludovicus. . . . Simonem comitem ad parlatnentum suum apud Boloniam super mare convocavit (Historiens de la France, XX, 414). Cf. Shirley, Royal Letters, II, 249. 3 Liber de Antiquis Legibus, pp. no f. Parlements were held at this term 1262, 1273, 1274. Cf. Olim, I, 765, No. 32, where there is what seems to be an adjournment to this term in 1269. 4 This ' Historióla de pietate Regis Henrici III ' has been printed from Rymer's transcript (Add. MS., 4573, fos. 57 f.) of the destroyed Vitellius D. XVI, by Champollion-Figeac, Lettres de Rais, I, 402 ff., and E. A. Bond in Archœological Journal, XVII, 317 if. 5 The story is written round Henry's one recorded bon mot, and perhaps quite correctly, and certainly quite naturally, appears in several contemporary or subcontemporary versions which do not mention parliament. One will be found in a collection of exempla (Speculum Laicorutn (ed. J. Th. Welter), p. 10), another in the continuation of Matthew Paris (ed. Wats (1640), p. 1009), repeated in Trevet's Annales, p. 280, and yet another in the St. Albans Opus Chronicorum (Trokelowe, Chronica, p. 36). 6 There seems no reason for doubting that the 'pallamentum' in 1261 to 1

2


I 169

striction of the parlement to the dispensing of justice, the shedding of the heterogeneity of the ancient curia regis, was a development of later years. Parliament then added the periodical redressing of wrongs not righted by the ordinary process of law to certain of the ancient functions of the curia regis, those functions for which special solemnity and a specially full attendance were deemed necessary, not excluding important or difficult judicial decisions. In the process of time the balance of functions — a balance never perhaps too closely reproduced in any two countries — changed under the pressure of events or as the result of deliberate policy. It is noteworthy that in Germany the name of parliament was not given to the Reichstag until the very closing years of the thirteenth century, more than a generation after the great period of the organisation of parliaments elsewhere :l and by that time every national parliament was developing along its own lines and differences were becoming marked. Looking back from the twentieth century and influenced, as we must be, by our knowledge of the developments of the fourteenth and fifteenth centuries, the parliament of the Empire seems to have been distinctly more like the later parliaments of Edward I

which the clergy of the province of Rouen sent representatives to treat concerning a crusade was a 'parlement' (see Eudes Rigaud, Regestrum Visitationum, p. 398, and Bonnin's note, p. 399). See also Grandes Chroniques de France (ed. Paulin Paris), V, 150, 167, where 'parlements' of 1303 and 1304 are mentioned. I feel considerable difficulty in following Borrelli de Serres in dismissing these assemblies — the one the first of the 'États Généraux', the second a meeting for treating of peace with Flanders — as having no connection with the parlement of Paris (Recherches sur divers services publics, I, 288 f.). 1 The earliest use of the name known to me is in a letter of January 1294 from Adolf of Nassau to Edward I (Bart. Cotton, Historia Anglicana, p. 434; Mon. Germ. Hist., Constitutiones et Acta publica, III, 434), the next in 1296 (ibid., 523 f. : cf. Ehrenberg, Der deutsche Reichstag, pp. 3 f.). It is perhaps not without significance that Richard of Cornwall did not, so far as we know, call his one general Reichstag in 1269 a parliament but colloquium (Mon. Germ. Hist., Constitutiones et Acta publica, II, 488, 6i6 : cf. J. F. Boppart, Richard von Cornwall, p. 115). In the account of this assembly to be found in Wyke's Chronicon, pp. 223 f., and apparently furnished by a follower of Richard's, it is called 'principum et magnatum Alemanniae convocatio'.

I 170


in England, Scotland and Ireland1 and distinctly less like the contemporary parlement of France. But nevertheless we must remember that well into the fourteenth century the parliaments of these islands continued to resemble the parlement of France very closely indeed, and we cannot be at all sure that the differences which we see would have been plain to contemporary observers. That there were contemporary observers well qualified to compare the functions and procedure of different parliaments is a point worth emphasising. First let us consider the large number of people attending the English parliament who must have had some acquaintance with the French parlement. After the treaty of Paris of 1259 it was necessary for the king of England as duke of Guyenne to be constantly represented by proctors in the parlement. The number of proctors appointed from then until the Hundred Years War was very large. Not only was Edward I represented by such men as Francesco Accursi, a civil lawyer,2 and the seneschal of Gascony,3 but from time to time we find such appointments as those of Stephen of Penchester4 and Thomas of Sandwich5 — both of whom acted as justices in England and the latter of whom filled the posts of seneschal of Ponthieu, of escheator and of constable of the Tower — of Nicholas Segrave6 a baron, of William of Blyburgh7 a wardrobe clerk, of Otho de Grandison8 who had been styled the king's secretary and was later keeper of the Channel Islands, of the archdeacon of Winchester,9 of sundry friars on occasion, as well 1

For Edward I's Scottish parliaments, see Scottish Historical Review, XXV, 300 if. For Edward I's Irish parliaments see now Richardson and Sayles, Irish Parliament in the Middle Ages, pp. 57-70. 2 Foedera, I, 516, 524; Langlois, Textes relatifs à l'histoire du Parlement, p. 92; Chanc. Mise. 3/21, No. 2; Statutes of the Realm, I, 42; Parliamentary Writs, 1, 6. 3 Langlois, op. cit., 124 f., 133 : cf. Maitland, Memoranda de Parliament, pp. 3, 300. 4 Chanc. Misc. 4/5 (Wardrobe Account, 1289-1290), ff. I2Ä, 16, 17, 226; Pari. Writs, I, 8, 16, :p; Rot. Par!., I, 36, 98«, I26Ä. 5 Chanc. Misc. 4/5, ff. 16, 226; Langlois, Textes, p. 102; Rot. Pari, I, 36. 6 Chanc. Misc. 4/5, f. 126; Pari. Writs, 1,15, 20, 29; Rot. Pari, I, 930. 7 Chanc. Misc. 4/4, f. 13 ; Langlois, op. cit., pp. 103,124: cf. Pari. Writs, I, 62. 8 9

Chanc. Misc. 4/5, ff. 11,23, 29; Pari. Writs, 1,2, 81 f., 136; Rot. Pad., I, j6a. Exch. T.R. Misc. Books, E. 36/201, p. 23; Rot. Pari., I, 446.


I 171

as of very distinguished persons such as Edmund, earl of Lancaster.1 These are but examples of the personal links between the parliaments of England and France. Information about the Scottish parliament at this period is hard to come by, but we know that it was attended from time to time not only by such men as the Bruces and Balliols, but also by others familiar with the English parliament who came either as representatives of the English king or as suitors. Thus "William of Blyburgh paid not only a visit to the parlement of France but also the parliament of Scotland:2 and the abbot of Reading may be found petitioning not only in the English parliament but also in the parliament of John Balliol.3 Again we have such an example as that of Jean, sire de Picquigny, vidame of Amiens, who is found acting as proctor for the count of Flanders in the parliament at Stirling in August 1293:+ unquestionably he was familiar with the procedure of the parlement of Parish The journeys of certain English friars exemplify most strikingly perhaps this coming and going between parliament and parliament. For instance, William of Gainsborough, then Minister General of the Friars Minor, was present at the assembly at Norham in June 1291, called to consider the question of the Scottish succession. This meeting Foedera, I, 793 f. Chancery Misc. 4/5 (Wardrobe Account, 1289-1290), f. 25. For Elyborough see Tout, Chapters in Administrative History of Medieval England, ii. 160, 163, 170-81. 3 Acts of the Parliaments of Scotland, I, 445 f.; Rot. Parí, I, oía. 4 Acts of the Parliaments of Scotland, I, 448. 5 He appears as a litigant on several occasions between 1257 and 1296; on the first occasion he was presumably a minor (Boutaric, Actes du Parlement de Paris, I, Nos. 79, 2304, 2410, 2574). Relying upon a document printed by Dutillet in his Recueil des rangs des Grands de France, F. I. Darsy (Picquigny et ses seigneurs, p. 36) stated that in 1298 Jean de Picquigny sat as a member of the court: this document is a French translation of the list in Olim, II, 423, No. xiii, printed also by Langlois, Textes, p. 169, and renders 'Vicedominus Priviconii' as 'Le Vidame de Piqueny', but no such Latin form of the name is to be found elsewhere. Darsy stated also (op. út., p. 37) that he visited England in the same year. He was certainly in favour with Edward I: Cal. Patent Rolls (1281-92), p. 321; Cal. Chancery Warrants (1244-1326), p. 32. 1

2

I 172


was not a parliament, but it will serve as a starting-point.1 In October 1292 he is at Edward I's Scottish parliament at Berwick when the same business is under consideration: his stay is prolonged, for he is still there in November.2 In 1294 he, with a Dominican friar, Hugh of Manchester, is acting as proctor for the king of England in the parlement of Paris.3 In August 1295 he is at a parliament at Westminster,4 and again in September i29y.5 In 1302 he is raised to the see of Worcester and thereafter as bishop attends the king's parliaments.6 His companion in Paris, Hugh of Manchester, is found attending the September parliament in I297,7 and the September parliament in 1305.8 These personal links between parliament and parliament are to be taken into account when we consider the likenesses between the procedure of different countries. There were similarities even in little things. It is not perhaps surprising to find a traditional forty-days' summons to parliament common to England and Scotland, but it may strike us as curious to find it in Germany also.9 The writs of summons in England and in Germany look as though they might have been derived from a common formula.10 That absentees from parliament should be liable to a money penalty both in Germany and in Ireland is a coincidence which also may strike us.11 These likenesses we may ascribe to Palgrave, Documents illustrating the History of Scotland, Illustrations No. 4; Prynne, Exact Chronological Vindication, III, 504; Foedera, I, 766. 1

Rishanger, Chronica, pp. 255, 260. Pierre de Langtoft, Chronicle, II, 204 ff. 4 E. 36/202 (Wardrobe Account, 23 Edw. I), p. 44. 2

3

5

Parliamentary Writs, I, 55, No. 10.

Ibid., I, 137, 139, 158 if., 182 f. ^ Ibid., I, 55, No. 10. 8 Ibid., I, 159 ff, Nos. 54-6, 59; Exch. Parliament and Council Proceedings, 6

I/2O.

Stubbs, Constitutional History, III, 394; Modus Tenendi Parliamentum (ed. Hardy), p. 3 ; Hannay, On ' Parliament ' and ' General Council ' in Scottish Historical Review, xviii, 158; Ehrenberg, Der deutsche Reichstag (1273-1378), pp. lof. In Germany as in England the custom of a seven weeks' summons was not maintained: much shorter periods are found in the fourteenth century. 9

10 Cf. the summons to Lübeck in 1310: Mon. Hist. Germ., Constitutions et Acta publica, IV, 332.

For Germany, see Ehrenberg, op. cit., pp. 23 f.: for Ireland, Richardson and Sayles, Irish Parliament in the Middle Ages, pp. 137-44. 11


I 173

accident or to some remote legal heritage. They may indeed be regarded as trivial resemblances, but we may find similarities in procedure of a much more arresting character. There has come down to us a great deal of detailed information regarding the parlement of Alfonse of Poitiers which we can compare with the detailed information we possess of the working of the English parliament of Henry III and Edward I. On the one hand we have certain financial accounts which contain references to the parlement, a large number of writs, various records of parliamentary proceedings, in particular a large roll recording the proceedings at the parlement held at Toulouse in 1270 just before the departure of Alfonse for the crusade.1 On the English side we have chancery and exchequer enrolments, various memoranda of parliamentary proceedings, petitions and miscellaneous documents.2 Without attempting a detailed analysis, attention may be drawn to the close similarity of the writs issued in the name of Alfonse and those issuing from the chancery and exchequer of Henry III and Edward I. There is the same mixture of administrative, judicial and purely feudal business in the two parliaments. Homage is rendered in the count's parlement as in the English parliament.3 The results of inquisitions of various kinds are reported to either parliament.4 Debts are respited and lands and goods replevied until parliament. 5 There are appeals from lower courts.6 And intermixed are matters which concerned the count personally rather than public administration, just as a large part of the petitions presented at a parliament of Edward I were concerned with gifts and rewards and other personal Now printed by Fournier and Guébin, Enquêtes administratives d'Alfonse de Poitiers (i9S9), PP- 289-354. 1

For references to these, see Bulletin of the Institute of Historical Research, V, 129 ff., and Handbook of British Chronology, pp. 499-513. 3 Correspondance administrative, I, 3, No. 4: Enquêtes, see index p. 469. For some account of corresponding English documents, see The Early Records of the English Parliaments in the Bulletin of the Institute of Historical Research, V, 129 ff., VI, 71 ff. z

4

Correspondance administrative, II, Ixiii, and references there cited.

Mandements inédits d'Alfonse de Poitiers in Annales du Midi, XII, pp. 307, 313; Correspondance administrative, I, 64, No. too: cf. p. 23, No. 35. 5

6

Correspondance administrative, II, Ixii, and references there cited.

I 174


matters.' And if we compare the entries on the parlement roll of 1270 with the parliament rolls of Edward I, we cannot fail to be struck by the likeness both in form and substance. There are very close similarities between the procedure of the parlement of Paris and that of the English parliament. The mass of petitions presented in either parliament is an obvious point of similariity, as well as their trying by maîtres des requêtes in France, by receivers or auditors of petitions in England. Again a great deal of the detailed work of the parlement in France was performed by commissioners.2 This is also a feature of the parliaments of Edward I. Thus in 1275 auditors are appointed in the Easter parliament to examine the contentions between the citizens of York on the one hand and the abbot of St. Mary's and the dean and chapter of St. Peter's on the other.3 In the Michaelmas parliament of 1278 the contentions between the king of Scotland and the bishop of Durham were first heard before certain commissioners and afterwards before the king and his council: the business is later remitted to the same commissioners to determine.4 An instance of a rather different kind is one where the king in council charges the seneschal of Gascony and Adam of Norfolk, constable of Bordeaux, to conduct an inquest into the disputes between the bishop and city of Bayonne: this was to be completed in time for the Michaelmas parliament of 1290.5 A similar procedure was apparently contemplated when in October 1289 auditors were appointed to hear complaints against the king's ministers and their replies — the enquiry which resolved itself into the 'trial of the judges'.6 The English parliament did not develop any permanent organisation resembling the chambre des enquêtes, but to discuss the reason for this and other differenCorrespondance administrative, II, Ixii f.: cf. Enquêtes, passim. On this subject, see P. Guilliiermoz, Enquêtes et Procès (1892): the section on 'Commissions à enquérir' (pp. 27 ff.) affords a succinct view of the main features of the French system, which it is thus easy to compare with the system, if such it can be called, in England, as it appears in documents of the kind here cited. s Cal Patent Rolls (1272-81), p. 120. 4 Foedera, I, 565. 5 Champollion-Figeac, Lettres de Rois, I, 280 f. 1

1

6

Foedera, l, 715.


I 175

ces between the parliaments of England and of France would take us far from the question of origins. It is important, however, to remark that in the thirteenth century there was in England a rudimentary system of local and special enquiries which might well have led, as it did in France, to a distinct and organised branch of parliamentary procedure. As the English and French parliaments developed in different directions, so the procedure and organisation of the English and Scottish parliaments diverged widely. But in the thirteenth century the similarities were still very close. No one who examines side by side the surviving parliament rolls of John Balliol and those of Edward I but must be struck by the close correspondence. Particularly is this marked in the form of petition, in the proceedings upon petition, in the adjournments to future parliaments.1 Nor is there need to dwell upon the similarities between the parliaments of Ireland and England. Since the Irish parliament was, like all the courts that served the Pale, purely English, it is but to be expected that it should be in nearly all respects similar.2 In discussing and comparing the parliaments of the thirteenth century no reference has been made to the presence or absence of representatives of the commons. It is from the standpoint of the modern age that the feeble beginnings of popular representation have any importance in parliamentary history. In the thirteenth century the popular element is of little significance, so far at least as the competence, jurisdiction or procedure of parliament is concerned. Popular representatives may be needed to give the appearance of popular support, and they may be summoned to a session of parliament in much the same spirit as they are summoned to welcome Henry III home from France3 or to take oath to a new king and to receive orders to keep the king's peace4 or to grace a coronation.5 If the advice of representatives of the commons is The surviving enrolments for two parliaments of 1293 are printed in Acts of the Parliaments of Scotland, I, 445 ff. 2 Richardson and Sayles, Irish Parliament in the Middle Ages. 1

Close Rolls (1242-7), pp. 129 £ Annales Monastici (Winton.), II, 113. s Parliamentary Writs, II, ii, 17 £ 3

4

I 176


seriously required it is likely that they will be summoned to a special meeting.1 Nor does the discussion of parliamentary origins necessarily entail an enquiry into the source of representative institutions. That source has been sought in many directions, but indeed popular representation is an idea so widespread that we hardly need to seek for sources and affiliations. It is found among the revolting Norman peasantry of 997,2 and certainly quite independently among the burgesses of Irish towns in the thirteenth century.3 Representation is so marked a feature in the medieval Church, and particularly in certain religious orders, that we have been invited to see here a source of inspiration for the British constitution.4 The list could be indefinitely extended. The real problem, however, is not to explain the occasional association of popular representation with a session of parliament in England or elsewhere, but to explain why popular representation became an essential and inseparable feature of English parliaments. The explanation is not to be found by any examination of the origins of parliament, however farreaching or ingenious. 1

This is more particularly the case with town representatives who were summoned several times by Edward I to discuss such matters as town planning and customs duties (Parliamentary Writs, I, 49 if., 134 f.) : in France under Saint Louis they were consulted about coinage (on this see Ch. V. Langlois in Lavisse, Histoire de France, III, ii, 259). 2 William of Jumièges, Gesta Normannorum Ducum (ed. J. Marx), pp. 73 f. 3 In 1252 the articles of confederation between Dublin and Drogheda provide for common counsel between representatives of the towns (Gilbert, Historical and Municipal Documents of Ireland, p. 131): in 1285 the confederation embraces Dublin, Drogheda, Cork, Limerick and Waterford and the articles provide that two or three citizens or burgesses from each town are to meet triennially at Kilkenny on the morrow of Trinity (ibid., p. 196). It is possible that the court of the Four Burghs in Scotland has its origin in a similar confederation (cf. Acts of the Parliaments of Scotland, I, 724: an earlier reference to the Four Burghs will be found in Rot. Pari., I, 108). Another parallel is afforded by the moneyers of the oath of the Empire who had a representative parliament, meeting every four years, but the evidence does not go beyond the first half of the fourteenth century: see Revue Numismatique (1844), pp. 105 f.; Annuaire Soc. française de Numismatique, XIX, 108 ff. * E. Barker, The Dominican Order and Convocation, pp. 72 ff.


I 177

In conclusion it may be well to summarise the suggestions I have to make. The difficulty is to explain how the occasional plenary meetings of the king's court in the early thirteenth century became transformed into the organised parliaments later in the century. We must, I suggest, assume some definite plan, some grafting of new ideas upon the stock of an ancient institution common to Western Europe. A beginning seems to have been made in France and to have been associated definitely with a scheme for bringing the royal baillis and local administration generally under control. Similar ideas, arising a few years later, are to be found in England. Although here regular parliaments may have been devised in some measure as a curb upon the king, it is likely that the recent reorganisation of the parlement in France had considerable influence on the measures taken in England. In turn the English parliament was imitated in Ireland and influenced the parliament of Scotland. Nor did the influence of the French parlement soon cease: the constant intercourse between the French parlement and the English court may explain in some measure at least the similarities in procedure to be found in the English and French parliaments in the later years of the thirteenth century. It is possible too that such influences were even more widely diffused owing to the presence, for example, in the Scottish parliament of suitors familiar with the procedure of the parlement of Paris. It is not clear that Germany was affected by the example of foreign parliaments, although the name was borrowed late in the thirteenth century. Nor does there seem reason to suppose that Italy was influenced from the North and West,1 although the popularity of the name parliament about the year 1300 may be due to imitation from abroad rather than to native influences. There is space but for a brief postscript. It was not to be expected that the similarities so evident in the later thirteenth century would continue for long. England soon became cut off by war from France. Not only so, but the legal systems of the two countries determined that there must be wide divergences in procedure. France had no such organisation Compare, however, Fertile, Storia del Dirítto Italiano, II, i, 319. But the French model which is supposed to have been adopted in Savoy seems to be the états généraux. 1

I 178


of royal courts of law as had been created in England in the twelfth century and perfected in the thirteenth. The parlement of Paris had ultimately to perform many of the functions of the king's bench, the common bench and the justices in eyre. The parlement in consequence became increasingly a professional body of lawyers, while in England the judicial work of parliament receded more and more into the background. Scotland also was cut off by war from England and the Scottish parliament developed in its own way little influenced by ideas from over the border. It was only between England and Ireland that the old links subsisted and there only parliamentary institutions retained a close similarity.

THE ORIGINS OF PARLIAMENT

I 172

APPENDIX

PROVISIONAL LIST OF ENGLISH PARLIAMENTS, 1258-1272 [The following abbreviations are used :—C.R. = Close Roll ; C.P.R. = Calendar of Patent Rolls; C.R.R. = Curia Regis Roll; A.R. = Assize Roll ; L.R. = Lords' Reports on the Dignity of a Peer ; L.A.L. = Liber de Antiquis Legibus ; Ann. Mon. = Annales Monastic! (Rolls Series). For a number of references to unprinted sources I am indebted to Mr. G. O. Sayles. Further investigation of unprinted sources, especially Plea Rolls, may make it possible to supplement or correct the list.]

Year Term. 1258 Easter x

1259

Place. Westminster

2

Whitsun

Oxford

Michaelmas

Westminster

Candlemas

Westminster

Authorities.

C.R. 73, m. ioi, 74, m. ib. (L.R. II, 7.) Matt. Paris, Chron. Maj., V, 676. Foedera, I, 37». C.R. 73, mm. 8, 7, 76. C.P.R. (1247-58), 632, 637C.P.R. (1258-66), 47, 83. C.R.R. 158, m. 12. C.P.R. (1247-58), 645, 654 ff. C.R. 74, m. 16. (Brady, Introduction to Old English History, 141.) L.A.L. 39. Ann. Mon., Ill, aro. Hemingburgh, I, 307. C.R. 74, m. 14. A.R. 873, mm 6, 7.

1 Apparently originally summoned for 24 February (Matt. Paris, Chron. Maj., VI, 392). 2 The session of this parliament seems to have been regarded as continued at Winchester: see L.A.L., 38, Ann. Mon. (Winton.), II, 97; Chron. of Edward ƒ and Edward II, i, 51 : cf. C.P.R. (1247-58), pp. 640 f.


Year, Term. 1259 Michaelmas

Place. Westminster

I 173

Authorities.

C.R. 75, m. 176. (Statutes of Realm, I, 8

ft.) Ann. Mon., I, 471 ff. A.R. 911, m. 36. L.A.L. 42. 1260

Candlemas1

London

C.R. 75, mm. 18, 17. Bémont, Simon de Montfort, 351.

Easter

Midsummer

Westminster

C.R. 76, mm. 2, 2b, i, \b.

London

C.R.R. 167, m. IQ. L.A.L. 44. C.P.R. (1258-66), 81, 85,

90. Michaelmas 1261 Candlemas

[21 September 2

London London

Windsor]

C.R.R. 167, m. 26. L.A.L. 45. C.P.R. (1258-66), 90. L.A.L. 45.

C.R. 77, mm. 23, 196, 17. (L.R. Ill, 23.) A.R. 911, m. 61. Ann. Mon., Hi, 217. C.R. 77, m. 6o. (L.R. Ill, 23.) Anc. Corresp., VII, 33.

1262 Candlemas 1263 Nativity B.V.M.3

London London

Michaelmas

London

Ann. Mon., IV, 130. Fine Rolls, II, 402.

Ann. Mon., I, 176 ; III, 224; IV, 135. Foedera, I, 433. Flores Hist., II, 484.

1 Held apparently in the king's absence in three weeks of Candlemas. London may here, as elsewhere, signify Westminster. * It is improbable that this parliament ever met. An Easter parliament seems to have been abandoned, Annales Monasiici {Wykes), IV, 128. A parliament has been supposed to have been held at Winchester at Whitsuntide (Prothero, Simon de Montfori, p. 230 ; Bémont, Simon de Montfort, p. 190, note 2) : but the evidence does not seem satisfactory. I have traced nothing in record sources and Wykes' language does not demand this interpretation. 3 Apparently there was a brief session at this term, and another after the king's return from France.


I 174 Year. 1264

Term. [Lent 1

Place. Oxford]

Midsummer

London

1265 Hilary 2

i June Nativity B.V.M.

Westminster

Westminster 3 Winchester

1266 April Assumption

Northampton Kenilworth

1267

St. Edmunds

February

Authorities.

C.P.R. (1258-66), 358. C.R. 81, m. 66. (L.R. Ill, 29.) Ann. Mon., Ill, 235 ; IV, 140. Oxnedes, 225. Chron. Edw. I and Edw. II, I, 61. C.P.R. (1258-66), 360, 362, 365. C.R. 81, m. 46. Foedera, I, 443, 451. L.A.L. 63, 65. C.R. 82, mm. nb, rob, qb. Foedera, I, 451 f. L.A.L. 71. Ann. Mon., II, 358 ; III, 235 ; IV, 159. C.R. 82, mm. 7, 6b. Ann. Mon., II, 102, 366 ; V, 173, 176, 178. L.A.L. 76. Chron. Edw. I and Edw. II, I, 69 f. Flor. Worcester Cont., II, 194. C.P.R. (1266-72), 63,113. 265. L.A.L. 84. C.P.R. (1258-66), 671. Ann. Mon., II, 371. C.R. 84, m. gb. C.P.R. (1266-77), 133. Ann. Mon., IV, 196.

1 It is dubious whether this assembly, which was rather in the nature of a gathering in arms, should be regarded as a parliament. s A meeting, termed by certain chroniclers a parliament (Annales Monastics, III, 235 ; IV, 154 fi.)« was summoned to meet at Oxford on 30 November, 1264 ; but it is not clear that any business was transacted in the absence of the Marchers. * One entry out of four on the Close Roll gives Winchester as the place of meeting ; this seems undoubtedly a mistake for Westminster.

THE ORIGINS OF PARLIAMENT Year.

1267

Term.

Place.

[6 September 1 Shrewsbury] Martinmas

Marlborcmgh

1268 June

Northampton

Michaelmas 1269 Hilary Easter Midsummer [Michaelmas 3 1270 Easter

London z London London London Westminster] Westminster

July

Michaelmas

Winchester Westminster

1271 Michaelmas 1272 Hilary

Westminster Westminster

Michaelmas

Westminster

1

I 175

Authorities. C.R. 84, m. 2b. (Shirley, Royal Letters, IL 314). Hemingburgh, I, 329. Trevet, 274. Statutes of Realm, 1,19 ff. Oxnedes, 235. Ann. Mon., II, 106 f. Flor. Worcester Cont., II, 201.

C.R. 85, m. 46. L.A.L. 108. Ann. Mon., IV, 221. C.P.R. (1266-72), 384. Ann. Mon., IV, 226 ff. Letters from Northern Registers, 24. Ann. Mon., II, 108. L.A.L. 122. L.A.L. 125, 129. C.R. 87, mm. 36, 2. Reg. W. Giffard, 211. L.A.L. 127, 140. L.A.L. 142. L.A.L. 142. Cf. C.P.R. (1266-72), 622 ff. C.R. 89, m. 3.

It is not quite certain that' this meeting was a parliament, The Winchester Annalist (Ann. Mon., II, 107) appears to refer to this parliament as meeting at Winchester, a mistake perhaps for Westminster. 3 Despite the attendance of town representatives it is doubtful whether this meeting was a parliament. 2

I 176


NOTES I

Page 146

154, n.3 155, n.2 n.3 164, n.3 n.7 165, n.4 168, n.4 170, n.l 1119-20 173, n.2

The paper on 'The Origins of Parliament', first printed in Trans. Royal Hist. Soc., XI (1928), 137-183, was re-issued in 1968 in a revised version as given here (Essays in Medieval History, ed. R. W. Southern). See also the discussion in A. Marongiu, Medieval Parliaments: a Comparative Study (1962; transí. 1968), p. 48f. For xxxiireadlxxxii, and see below, II. 147-50. Below, xiii. 300f. For No. 17 read p.82f. and see below, xvi. 82f. Below, V. 134f. Below, V. 133f., 151f. Below, XIII. 300f. For XVI read XIV. Below, XIII. 300f. For of escheator and of constable of the Tower read sheriff of Essex. Below, V. 129f. Appendix

172

173 175

Entry for '1958'; delete 74, m.li. This list of parliaments was given in the paper published in 1928 and it has been somewhat amended in the light of subsequent research: cf. Sayles, The King's Parliament of England, pp. 137ff., to which should be added the parliament at Norham in June 1291. Entry for '1261': for 61 read 6b. An appendix, giving extracts from the parliament roll of Alfonse of Poitiers, has been omited, for the roll has been printed in full in P. F. Founder and P. Guébin, Enquêtes Administratives d'Alfonse de Poitiers (1959).

II The earliest known official use of the term ' parliament ' THE subjoined document is taken from a record of the essoins (or excuses) of those litigants who failed to put in an appearance in the court of king's bench in the Michaelmas term of 12 36. Though the membrane on which it appears is now part of a separate Essoin Roll,1 this roll is a recent creation: its three membranes were recovered between 1952 and 1956 from a jumble of miscellaneous legal records2 and may originally have formed part of the corresponding plea rolls.3 We need not linger over the subject matter of the document. Litigation had arisen over the advowson of Stapleford church in Wiltshire. The advowson ran with a knight's fee in Stapleford that had been held in chief by Geoffrey Husee under John4 and by his heir, Henry Husee, under Henry III.5 The land had been granted by Henry to another member of the family, Hubert Husee,6 but apparently on Henry's death in 1235' Hubert's right to present to the benefice had come into question and he had brought an assize of darrein presentment against the bishop (Robert Bingham) and the dean and chapter of Salisbury. The action was set down for hearing in the king's bench on 23 November 1236, but it was adjourned until 28 November in response to a letter from the king, dated at Windsor on 16 November.8 On the day set down for trial the subdean, Adam, who represented the chapter, was permitted to essoin, and he pledged his faith that he would appear at the parliament at Westminster on the Octave of Hilary (20 January 1237). The same day was given in court to the bishop and all the recognitors on the jury. Soon afterwards the sub-dean nominated two attorneys to act for him.9 The king's bench plea roll for Hilary 1237 is itself no more 1. Curia Regis Rolls (K.B. 26), no. 116 C. 2. The roll is not, of course, included in P.R.O. Lists and Indexes, no. iv, printed in 1910. 3. The first membrane relates to Trinity 1236; the second to Michaelmas 1236; the third to Easter 1237. The membrane which concerns us is associated with Curia Regis Roll, no. 116 B (Trinity 1236 - Easter 1237), which is itself a comparatively new formation: five of its eight membranes were found between 1894 and 1920 and three between 1950 and 1954. We owe this information to Mr. C. A. F. Meekings of the Public Record Office, who generously placed his minute knowledge of these documents at our disposal. 4. Calendarinm Geneahgicutn, i. 177: Cal. Inquisition.!, i. 287. 5. Exferptae Rofu/isFinit/m, i. 35 (1219). 6. BooÂofl'ees, ii. 728. 7. Excerpta f Ro/i/lis I'itiiu///, i. 278-9. 8. Close Rolls, ¡234-1237^. 392. 9. Ibid. p. 515.

II 748

THE E A R L I E S T K N O W N O F F I C I A L USE

than fragmentary1 and consequently neither the case put forward by the parties nor the outcome of the action is known. But for our present purpose these details are not important. The important fact for us is the adjournment of the action to parliament. The parliaments of the thirteenth century have recently been shuffled into a heterogeneous assortment of conciliar assemblies and, as a consequence, their distinctive character, upon which in our studies of parliamentary history we had insisted, has been obscured.2 The resulting list, which appears in the second edition of the Handbook of'British Chronology, however, begins, oddly enough, in 1242 because it was 'the year in which, as far as is known, the term "parliament" is first used in an official royal document'.3 It is not suggested that this year has any other peculiar claim to importance in the history of parliament, and the significance thus given to it is removed by the discovery that, already in 1236, the word 'parliament' is to be found on the records of a court of law. Furthermore, this parliament is evidently so-called because the term is acquiring a technical meaning. It is a special meeting, an afforced meeting, of the king's council to which the justices of the king's bench know they can refer for consideration one of the cases before them in which the king has expressed an interest. This meeting, described also elsewhere as a 'general' council or a 'great' council,4 is well documented. It was attended by archbishops, bishops, abbots and priors and by earls and barons5; there was legislation for the royal forests and for changes in the period of limitation in certain forms of action6; the king's demand for an aid was met by the grant of a thirtieth in return for a confirmation of the Charters.7 These are matters of high politics, such as engaged the attention of many of the king's parliaments in later years. On this ground alone our document would have considerable interest. But it may serve also to direct attention to the significant fact, apparently not yet adequately appreciated, that relatively unimportant matters, as well as important ones, were discussed at parliaments8 and that this was happening as early as 1236. Since important documents often escaped enrolment, it is not surprising that routine business was rarely considered worth enrolling until late in the thirteenth 1. Above, p. 747 n. 3. 2. Handbook of British Chronology (and edn-., 1961), pp. 499 ff. The list, for which we had considerable responsibility, given in the first edition (1939), was concerned solely with the history of parliament, freed from confusion with the history of popular representation. 3- P- 4954. Bradons Note Book, iii. 230; Matthew Paris, Chnnica Majora (Rolls Series), iii. 580. 5. CloseRol/s, 1234-1237, pp. 399, 521-2, 543~5> 5 5 5 ; Lords Reports on the Dignify of a Peer, i. 85. 6. Close Rolls, 12)4—1237, pp. 354, 521 ff.; Annales Monastic!, i. 251-2. 7. Close Rolls, 1234-1237, pp. 543-5; 5 5 5 ; Mathew Paris, op. cit. 380-4. 8. A dispute concerning the services due to the honour of Peveril in Northamptonshire was also considered on this occasion {Close Rolls, 1234-1237, p. 399).

OF THE T E R M ' P A R L I A M E N T '

II 749

century and any record or memorandum was simply left on the files of departments and courts. This is true also, it may be desirable to remark, of business coming before the council at meetings that were not parliaments. The surviving records of this humdrum activity enable us both to understand better the place of the king's council in medieval administration and to appreciate the reason why parliament was valued by the humbler members of the community as well as the great. Most of the early rolls of parliament, dating from the latter part of Edward Fs reign, in which petitions are enrolled, are almost entirely taken up with the problems of common people in their everyday lives.1 So far as we know, no such enrolments were made under Henry III, but the material was already there, in some measure at least, as early as 1236. Our document serves also to emphasize the importance of the administrative reorganization and reforms in the year 1234. These included the suspension of the office of Justiciar of England, the creation of the three distinct courts of common law - king's bench, common bench and exchequer of pleas - and the restarting of the departments of chancery and exchequer.2 Into this scheme of government the king's great council entered as a superior tribunal where the collective wisdom of expert ministers and justices and the authority and experience of magnates would be available when required. Almost immediately after these changes have been accomplished, this great council is described by a royal clerk in the official records of a royal court of law as a 'parliament'. It appears then to be as true in 1236 as it was sixty years later that 'the king has his court in his council in his parliaments, when there are present prelates, earls, barons, magnates and other learned men: and there doubts are determined regarding judgements, new remedies are devised for wrongs newly brought to light, and there also is justice dispensed to everyone according to his deserts'.3

Curia Regis Roll, no 116 C (Michaelmas 20-21 Henry III), m. id. ESSONIA CORAM DOMINO REGE APUD WUDESTOKE DIE VENERIS ANTE FESTUM SANCTI ANDREE.

Wilt'

Adam subdecanus Sar' versus Hubertum Heose de plácito assise ultime presentacionis per Ricardum de Esseby in octabis sancti Hillarii apud Westmonasterium ad parliamentum. Affidavit. 1. Richardson and Sayles, 'The Early Records of the English Parliaments' in B»//. Inst. Hist. Res,, vi (1929), pp. 146 ff. 2. We shall discuss this development at length in the second volume of our Governance of Mediaeval England. 3. Fieca, Book II, c. 2 (ed. Richardson and Sayles, ii. 109).

II 750

Idem dies datus est episcopo Sar' per attornatum suum in banco. Et similiter idem dies datus est omnibus recognitoribus qui venerunt, scilicet, Henrico de Albiniaco, Henrico de Boville et omnibus alas. Et vicecomes habeat corpora eorum. NOTES II

Page 749, n.l Below, XIX, 146ff. n.2 This volume, though begun, was not finished.

Ill THE PROVISIONS OF OXFORD : A FORGOTTEN DOCUMENT AND SOME COMMENTS.1

I.

T

HE " Provisions of Oxford " are known from two texts— that in the Annals of Burton, which was published by Fulman in 1684,2 and again by H. R. Luard in the Rolls Series,3 familiar from its inclusion in Stubbs' Select Charters,* and another, slightly varying, text in Tiberius B. IV, which, although it is mentioned in the Catalogue of the Cottonian Manuscripts,5 has only recently attracted attention.6 Yet another text existed in the seventeenth century, but this appears to have survived only in the abstract which is printed below. As its heading shows, this abstract was made by John Seiden from a roll in the possession of Sir Edward Coke. Coke seems to have called his document a parliament roll, but he bestowed 1

This paper was written before Professor R. F. Treharne's detailed monograph on The Baronial Plan of Reform (Manchester University Press, 1932) appeared. We have since availed ourselves of this, and of some private suggestions kindly offered to us by Dr. Treharne, to make a few modifications and corrections. On some points we have preferred our own conclusions. a Rertm Anglicarum Scriptores Veteres, pp. 412-16. 3 Annales Monastics, i. pp. 446-53. 4 Ninth edition, pp. 378-84. 6 Tiberius B. IV, fos. 213-14. In Thomas Smith's Catalogue of 1696 it is mentioned at p. 22, col. 2 : " Provisiones Oxonii tempore Regis Henrici III," and in the copy in the Students' Room at the British Museum is a manuscript note " Ex hoc corrigi possunt Provisiones Editae in Annal. Burton, 412." It is again mentioned in the Catalogue of 1802, p. 35, and Index, s.v. Oxford. 6 Professor E. F. Jacob, in History, ix. 191, Oxford Studies in Social and Legal History, viii. 71, and English Historical Review, xli. 560 ; Professor F. M. Powicke, " The Baronial Council " in Essays in Mediäval History presented to T. F. Tout, p. 121. 3

Ill 4

that name rather indiscriminately,1 and we ought not to imagine that he was warranted by any contemporary title or endorsement. Nothing that can properly be called a parliament roll has survived from the reign of Henry III and, so far as we know, no such roll was written until the early years of Edward I. Our first notice of this particular roll is in the second edition of Selden's Titles of Honor, published in 1631 ; 2 it is not mentioned in the first edition of 1614.3 It was apparently sought, but without success, by Sir Joseph Ayloffe about the middle of the eighteenth century.4 It is not now at Holkham with such of Coke's legal manuscripts as are to be found there.5 Both roll and abstract may have perished in the disastrous fire which consumed eight chests full of Selden's manuscripts in January, 1680,6 for even the abstract we know only from copies among the collections of transcripts made by William Petyt7 and John Anstis.8 1 Among the manuscripts at Holkham (no. 677, fo. 402) is a transcript " Ex fragmento rot. Pari, de anno 51 Hen. Ill " (Historical Manuscripts Commission, Ninth Report, App. II, p. 366). This document Coke cites as a parliament roll in his Institutes, iii. c. 70 (ed. 1644, p. 151). But the record was evidently similar to that printed in Cole's Documents Illustrative of English History, pp. 354 fi. 2 P. 722 : " For all Parlament Rois of the time of Henrie the third are lost, excepted one of some passages in the Parlament of Oxford, in the 44 (sic) of the same King which I have heretofore vsed by the fauor of an honorable person that communicated it. 3 The two editions are, of course, very unlike ; but any reference to this roll would presumably have appeared at pp. 279-81 of the first edition. 4 Calendars of the Ancient Charters (1774), Introduction, p. vii. 5 We owe the following note to the kindness of Mr. C. W. James, the present librarian. " We have (at Holkham) a Catalogue of the Chief Justice's Library drawn up by a clerk, but signed in various places by Edw. Coke. Among his ' Legal MSS " there is an entry of ' The roll of parliament an0 42 Hen. 3 of some called insanum parliamentum.' This, I take it, is the roll he lent to Seiden. But it has disappeared, together with the greater number of the Legal MSS. mentioned in the Catalogue. From internal evidence, I date this Catalogue 1630." 6 For the fire, see J. Ayloffe, Antient and Present State of the University of Oxford (1714), i. 462 ; W. D. Macray, Annals of the Bodleian (1890), p. 121. Neither the original abstract nor any copy of it is to be found among Selden's collections at Lincoln's Inn. 7 Inner Temple, Petyt MSS. no. 533/6, fos. 53-6. 8 Stowe MSS. no. 1029, fo. 170v°-176. It should be remembered that Seiden died in 1654, and that Petyt lived between 1636 and 1707, and Anstis between 1669 and 1745. Selden's original abstract was presumably made in 1630 or earlier.

THE PROVISIONS OF OXFORD

ms

For convenience of reference we have numbered each item in the abstract separately, and in this way we get thirty-three paragraphs. The first twenty-two correspond to the " Provisions of Oxford " as they appear in what we may call the Burton-Tiberius text, but the order is different, and there are both omissions and additions. The omissions can best be indicated by giving the paragraphs in the order in which they appear in the BurtonTiberius text and noting the gaps :— Burton-Tiberius Text. Opening section. Electi ex parte domini Regis. Electi ex parte comitum et baronttm. Oath of Commune. Oath to Twenty-Four. Articles from the oath of the justiciar "1 £ , ,_ , £ ^ I J í to the names or the twenty-rour to f treat of the aid for the king. J Articles from that providing for the! reform of the Church to that pro- r viding for the reform of the Jewry. J Thence to the end.

Coke Roll. Paragraph no. 4. Omitted. Omitted. Paragraph no. 22. Possibly paragraph no. 12. i i ¿ 11 \ e D Paragraphs nos. lo, I/, 15, 10 9fí 91 1R '*' "' '' Omitted. Paragraphs nos. 1, 3, 5, 6, 8, 9, 10, 14.

Four paragraphs (nos. 2, 7, 11, 13) and possibly a fifth (no. 12) are not to be found in the Burton-Tiberius text. Paragraph no. 2 regarding prise and paragraph no. 7 regarding purchases (of land) by religious houses are related respectively to articles 22 and 10 of the " Petition of the Barons." 1 Paragraph no. 11 is a note of the delay until 8 August demanded by Henry of Almaine so that he could obtain instructions from his father, the king of the Romans, before he took the oath of the Commune.2 Paragraph no. 12 is a note that the king's councillors—presumably the Fifteen—took their oath, the terms of which have not come down to us, unless indeed, as is quite probable, it is the oath which the Burton Annalist calls " le serment a vint e quatre." 3 1

Annales Monastic!, i. 440, 442 ; Select Charters (ninth edition), pp. 375-6. Hitherto the only articles in the Petition which could be connected with the " Provisions " were 4 and 5, relating to castles : cf. Treharne, op. cit., p. 70. 2 Cf. Annales Monastici, i. 444 ; Mat. Paris, Chron. Maiora, v. 697. 8 This oath appears from the opening words to be identical with that which the earl of Gloucester called " le común serement ke fet avuns as Baruns " (Hist. MSS. Corran., Report on Manuscripts of Lord Middleton, p. 69). In Tiberius B. IV, the oath is headed : " Cest le serment de xxiiij."

Ill 6

The next entry (no. 13) is the letter of 4 August, which we know from a copy on the Patent Roll,1 announcing the adherence of the king and Edward to the constitution agreed to at Oxford. Beyond these omissions and additions and the transposition of the order in which the different items are given, the most striking differences are in the lists of the council, of the Twelve, and of the Twenty-four to treat of the aid for the king. Among the council the Coke Roll includes Philip Basset in place of John fitz Geoffrey, and, among the Twelve, William Bardolf in place of the bishop of London. Among the Twenty-four to treat of the aid the Coke Roll, like Tiberius B. IV, includes William of Powick and John of Oare ; 2 but the names of those they replaced are left in the list, and we have therefore twenty-six names in all. The two omissions should presumably be John Grey, whose name is omitted in Tiberius B. IV,3 and John fitz Geoffrey, who died in November, 1258.* The name of the bishop of London, who died in May, 1259, is retained in the Coke Roll, presumably by an oversight.5 Of these lists we have more to say later. Turning now to paragraphs nos. 23-33, we may first note that the documents underlying four are already known. These are a writ dated 20 October, 1258 (no. 23) to be found both on the Patent Roll and in the Burton Annals,6 a letter (no. 24) from the council (of the Fifteen) and the twelve representatives of the Commune which is embodied in a later document on the Patent Roll,7 a writ (no. 25) to be found in slightly differing versions in the Burton Annals and among Matthew Paris's Additamenta,9 Letters of Henry III (Rolls Series), ii. 129. Tiberius B. IV, fo. 213v°. Awre or, as it is usually written, Aure is undoubtedly Oare, Somerset. 3 The name of John fitz Geoffrey is, however, erroneously retained. 4 He was alive on 8 November (Cal. Patent Rolls (1258-66), pp. 2, 5), but dead by 27 November (and. (1247-58), p. 666). Philip Basset and the bishop of London are mentioned as his executors on 29 November (Close Roll, 43 Henry III (C. 54/74), m. 14). We may note that Close Rolls, nos. 72, 73 and 74, are now available in print, but our references are adequate to identifying the entries cited and we have not therefore added references to the printed volume (Close 5 Rolls, 1256-59). See below, p. 17. 6 Letters oí Henry HI, ü. I30-2 ; Ármales Monastid, i. 453-5. 1 2

'FoeJera.i.381. 8 Annales Monastid, i. 456-7 ; M. Paris, Chronica Maiora, vi. 396-7.


m7

and a list (no. 28), which is entered on the Patent Roll,1 of the four knights in each county appointed to hold inquisitions into complaints of oppression. The writ to the sheriff mentioned in paragraph no. 27 may be one of 28 March, 1259, directing that there be read in the county court and elsewhere the long letter of that date explaining the reforms agreed to by the king and the barons,2 but the abstract is too summary to make this identification certain. The rest of the entries by reason of their novelty are of more interest. Paragraph no. 26 appears to establish the date (10 July, 1258), hitherto unknown, of Edward's formal submission, and thus enables us to make a small but not unimportant correction in what has been understood to, have been the order of events. The fact of Edward's submission is mentioned, without date, in the letter from " someone at court " embodied in the Burton Annals,3 but the wording suggests that this was after the departure of the Poitevins from Dover on 14 July, and has misled recent writers.4 Paragraph no. 29 is certainly of considerable importance. It is a memorandum that the justices and other learned men—that is, the official councillors of the king—are to consider the amendment of the laws before the assembly of the next parliament : they are to meet a week earlier, when apparently they are to consult with the Fifteen. This procedure seems evidently designed to secure adequate consideration for those articles in 1 2

Roll.

Cal. Patent Rolls (1247-58), pp. 645-9. Foedera, i. 381 : the actual terms of the writ are not entered on the Patent

Annales Monastici, i. 445. Cf. Ramsay, Dawn of the Constitution, p. 175 ; Tout, Political History of England, 1216-1377, pp. 102-3 ; F. M. Powicke, Baronial Council, pp. 122-3. It is, however, evident from the letter entered on the Patent Roll, under date 12 July, addressed by Edward to all persons in Gascony, that he had by then made his submission (Cal. Patent Rolls (1247-58), p. 664 ; Foedera, i. 374). It may be noted that up to 11 July warning letters were being sent against acting on Edward's instructions (Caí. Patent Rolls (1247-58), pp. 639-41 ; Foedera, I 374). Dr. Treharne (op. cit., p. 78) follows Matthew Paris (Chronica Maiora, v. p. 702) in giving the date of embarkation as 18 July ; but there is no indication of such a delay in official documents and Fitz Thedmar states categorically that all, including William of St. Ermine and other followers of the king's brothers, crossed the Channel on the appointed Sunday or the following day (Liber de Antiguis Legibus, P. 38). 3 4

ms the " Petition of the Barons " which could not be dealt with in the brief time available at the parliament of Oxford, and it appears to have resulted in the Providencia barontan Anglic, whatever date we may ascribe to that document.1 The point, however, upon which we would lay stress is that we have here additional proof that the parliaments constituted according to the " Provisions of Oxford " were not, as has been suggested, " in fact composed solely of the king, the Council of Fifteen and that of the Twelve." 2 The justices and the principal officers of the chancery and the exchequer had their place in the parliaments of Henry III as they had in the parliaments of Edward I, nor can we imagine that the justiciar would be absent.3 The appointment of fifteen magnates as permanent members of the council, with the addition of twelve others at the periodical parliaments, was intended to provide an elaborate means of control ; but these devices implied the continuance of the normal judicial and administrative institutions of the country. Nor was there any suspension of the recognised course of parliamentary business, and in dealing with difficult questions referred to parliament the assistance of the judges and the king's ministers must obviously have been required.* The point is of such fundamental importance in the history of parliament and the misconceptions so serious and so general that we need no excuse for going into some detail. Our contenFor the text see Oxford Studies in Social and Legal History, viii. 366-9, Professor Jacob discusses the date at pp. 82 ff. and comes to the conclusion (p. 72) that the date is March, 1259, as Professor Powicke has also done (Baronial Council, p. 126, n. 4). But it is not easy to suppose that " Anno . . , xl. secundo " in the heading to the Cambridge text is a scribal error for " Anno ... xl. tercio." The truncated St. Alban's text which bears the date " mense Marcii anno Regni Regis Henrici xliii0 " may represent a later recension, the opening paragraphs of which were practically identical with the first draft. 2 Bémont, Simon de Montfort (1930), p. 170. Cf. Powicke, op. cif., pp. 121, 127 : " by the parliament, that is by the council and the committee of Twelve." See also Stubbs, Constitutional History (IV. ed.), ii. pp. 78-82 ; Ramsay, Dawn of the Constitution, pp. 180-1 ; H. W. C. Davis, England under the Normans and Angevins, pp. 450-1. 3 It should be unnecessary to point out that High Bigod, justiciar 1258-60, was a member neither of the Fifteen nor of the Twelve ; see below, p. 16. *For some examples of the procedure under Henry III, see Trans. Royal Historical Society, Fourth Series, v. 56-8, 60-2, xi. 154. 1


in 9

tion is that the king's ministers continued to be members of his council, and as such were not only consulted from day to day, but attended parliament as a matter of course. A separate point is that the parliaments of 1258-61 were attended by many others besides the Fifteen, the Twelve and the king's ministers. We are definitely told that in 1257 the barons of the exchequer and the judges took the councillor's oath,1 and there is ample evidence, apart from this, that they were in fact members of the council.2 Doubtless after June, 1258, the ministers tended to be overshadowed by the magnates, but they did not cease to be members of the council. Three examples will suffice, all of which we take from the Close Roll of 44 Henry III. The first entry we select shows conclusively that the treasurer was still a member of the council, as he had been in 1255 :—3 Prouisum fuit die sabbati próxima post festum sancti Edwardi martins (20 November 1259) coram iusticiario capital!, episcopo Wigornensi, Philippe Basset, I. de Crekhale thesaurario régis et aliis de consilio regis . . . *

Incidentally, we may remark that the alii de consilio regis must have been members of lower status than the treasurer. Let us next compare two entries dated 4 September, 1260, at Clarendon. The first mentions that action has been taken " de consilio magnatum cum Rege tune existencium." The other entry tells us who were the magnates then with the king who were acting as his councillors in attendance, for it is warranted " per ipsum regem, comitem Glouc' et I. Mansell', Robertum Wallerand et W. de Merton' tune existentibus (sic) apud Clarindon." This is sufficiently conclusive evidence that at least one senior chancery clerk, Walter of Merton, was included among the council.8 The last example is a note of warranty, under date 28 October, 1260, " per Henricum de Bathonia et Henricum de Bratton' et per totum consilium," which certainly seems to imply the presence of the two judges at the council.6 Having established the fact of the presence of the king's Annales Monastki, i. 395-6. See, especially for the judges, Foedera, i. 332, and the notes of warranty in Cal. Patent Rolls (1247-58), PP. 415, 431, 462, 626. 3 4 Foedera, loc. dt. C. 54/75, m. 19d. 8 C. 54/75, m. 5. « Ibid., m. 1. 1 8

Ill 10

ministers in the council, we may turn to the evidence for their presence at parliament. A London chronicler informs us that the barons of the exchequer were present at the Michaelmas parliament at Windsor in 1254.1 They did not cease to attend in consequence of the constitutional changes introduced in 1258. When, for example, in 1259, a case is adjourned to parliament in order that the rolls of the exchequer might be consulted, we can be sure that the barons of the exchequer are again expected to be present.2 Again, it is arranged that a dispute between a Jew and his debtor shall be argued before the barons of the exchequer and the justices of the Jews at the Candlemas parliament of 1261,3 While we should be justified in deducing from this evidence that not only the barons of the exchequer but the justices and other important ministers must normally have been present at parliament, the Coke Roll fortunately provides positive evidence that this was so. Who else were present ? Now we do not doubt that the device of the committee of Twelve was intended to secure adequate representation at the parliaments of the prelates and magnates who were not of the council in the sense that the Fifteen were, while at the same time, by placing a special duty on the Twelve, the burden which frequent attendance might have been felt to be by many prelates and barons would be removed. But this did not mean that more than the Twelve would not come nor that a special summons might not be sent on special occasions. The period during which the country was governed according to the constitution agreed to at Oxford may be regarded as extending from the Michaelmas parliament of 1258 to the Candlemas parliament of 1261.4 Including these two meetings, eight parliaments in all appear to have been held in a period of a little under two and a half years.5 For four of these parliaments we have 1 2

Liber de Antiquis Legibus (Camden Soc.), p 20. Trans. Royal Hist. Soc., Fourth Series, v. 56, 61.

3 Close 4 5

Roll, 45 Henry III (C. 54/77), m. 17. Below, p. 27.

Trans. Royal Hist. Soc., Fourth Series, xi. I72-3. There was possibly a ninth parliament at midsummer, 1259, but the evidence is not very satisfactory (Flores Historiarían, II, pp. 428-9 ; cf. Treharne, op. cit., p. 141).


in n

direct evidence that a large assembly was summoned. The first of them was attended by a large number of knights from the counties, although it is doubtful whether, as a body, they took any real part in the proceedings.1 The Michaelmas parliament of 1259 was attended by a large number of prelates and magnates as well as an innumerabilis populus, who presumably came to watch.2 To the Easter parliament of 1260 more than a hundred prelates and barons were summoned by special writ,3 and we know that, in the event, others attended, among them being Edward, Simon de Montfort and the king of the Romans.* Finally, to the Candlemas parliament of 1261 twenty-seven barons were specially summoned, only five of whom we know to have been among the Fifteen or the Twelve.5 Our information is so fragmentary, in particular the enrolment of writs of summons is so casual, that we cannot be at all certain of the numbers attending other parliaments in 1259 and 1260, but there are some indications that there was more than the minimum attendance. For example, there was probably a fairly large attendance at the Candlemas parliament of 1259, upon which fresh light is thrown by the following paragraphs of the Coke Roll. Paragraph no. 30 deals with the measures of control to which Edward was subjected. It mentions the council which had been selected for him—possibly the four named in the Burton Annals as his appointed counsellors 6—who were to be bound by a like oath to that taken by the Fifteen ; Edward's chancellor was to seal nothing but that to which his council agreed. This proSee the writs on the Patent Roll (Calendar (¡247-58), pp. 645-9), and Close Roll (English Historical Review, xlvi, 631-2). 2 Liber de Anfiquis Legibus, p. 42. It was referred to a year or so later as " generale parleamentum " (Trans. Royal Hist. Soc., Fourth Series, v. 58-9). Cf. Treharne, op. cif., pp. 160-3. 3 Lords' Reports, Hi. 19-20 (from Close Roll); Cal. Patent Rolls (1258-66), p. 123 ; see also Powicke, Baronial Council, pp. 133-4, where the documents from the Close Roll, except the list of names, are again printed. 4 Liber de Antiquis Legibus, pp. 44-5. This account is substantially confirmed by letters of 10 April from the king to the justiciar and the mayor of London (C. 54/76, m. 2d). 5 Lords' Reports, iii. 23. The five are the earls of Warwick and Winchester, John Balliol, Thomas Gresley and William Bardolf : see lists below. 6 Ármales Monastici, i. 445. 1

Ill 12

vision seems to be otherwise unknown and it helps to explain the agreement of 14 March, 1259, for freeing Edward.1 Paragraphs nos. 31 and 32 add appreciably to our knowledge of the happenings in the early months of 1259. It is known, of course, that on the feast of St. Peter in Cathedra (22 February) there was a formal declaration by the council and the twelve representatives of the Commune of their intentions regarding reforms—a document entered higher up on the Coke Roll (paragraph no. 24). Preparatory to this declaration and on the same day there had been, it appears, a solemn compact " for the service of the king and the government of the kingdom " between the council and the Commune, to which the clergy became parties by a separate instrument. Simon de Montfort and the Earl of Gloucester acted on behalf of the council, the Earl of Winchester and Thomas Gresley on behalf of the Commune, and the bishops of Worcester and Salisbury on behalf of the clergy. Incidentally we may note that, since the bishop of Salisbury was one of the proctors of the clergy, there was pretty certainly a substantial gathering of prelates at the Candlemas parliament of 1259, at least of others than those who chanced to be among the Fifteen or the Twelve. Paragraph no. 33 indicates the degree of humiliation to which the king was subjected. At Oxford it had been decided to reform the royal households ; in practice this seems to have meant the ejection of the more dignified of the king's (and presumably also of the queen's and Edward's) menial servants.2 Doubtless some of these had been guilty of abusing the king's right of prise,3 and Hist. MSS. Comm., Report on the Manuscripts of Lord Middleton, pp. 67-9. We may observe that it is highly probable that all those whose names are mentioned in this document attended the Candlemas parliament. 2 The reform of the households of the king and queen is mentioned in both versions of the " Provisions of Oxford " and the households of the king and Edward in the letter " from someone at court" in the Burton Annals (Annales Monastics, i. 445). It has been doubted whether any serious attempt was made to carry this into effect (Tout, Chapters in Mediaval Administrative History, i. 298-9). Certainly there seems to have been no complete purge. Though the stewards, for example, were displaced (ibid.), as well as the cook and the usher of the buttery, the marshal of the horse, Elias of Rochester, remained (Cal. Charter Rolls, ii. 1, 19; Cal. Patent Rolls (1258-66), pp. 45, 54 et passim). 3 Cf. article no. 22 of the petition of the barons and paragraph no. 2 of the Coke Roll. 1


HI 13

the establishments were probably upon an extravagant scale, but the blow to royal pride would not be mitigated by such considerations. In this, as in other matters, the barons provided a precedent for the Ordainers in their dealings with Edward II.1

II.

We turn now to discuss the relation of the Coke Roll to other contemporary records. It is but rarely in the Middle Ages that we have so many documents, as we have for the years from 1258 to 1267, to illustrate the successive stages of legislation and constitutional reform. If we had to rely solely upon official sources our information would be much more fragmentary than it is, for although at one time there must have been on the chancery files a collection of minutes, memoranda and drafts, these have long since been dissipated and destroyed, and the documents considered worthy of enrolment were few. But because there existed for a time a council dominated by a baronial oligarchy which, it is scarcely an exaggeration to say, in Professor Powicke's words " was not regarded and did not behave as an expression of the Curia Regis," 2 there was need for the multiplication of documents which normally perhaps would exist only in one or two copies. In this way several private or semi-official collections of state papers were doubtless made, collections varying in content with the interest or duties of their original possessors. The most noteworthy of those that survive in any form is the one that came into the hands of the Burton annalist.3 Another collection probably found its way to St. Albans, although relatively little of it was entered in the Liber 1

Cf. Conway Davies, Baronial Opposition to Edward II, pp. 382 ff. As soon as he could Henry, of course, removed the baronial nominees from his household: Annales Monastici, iv (Wykes), 129. There seems to be a reference to the household in the king's complaint in 1261 that the council have removed from him those whom he likes and has found loyal and good and who know how to manage his affairs to advantage : English Historical Review, xli, 567 (17). 2 Essays presented to T. F. Tout, p. 123. 3 Annales Monastici, i. 439-84: other matter is interspersed.

Ill 14

Additamentorwn.1 Tiberius B. IV, which contains, besides the " Provisions of Oxford," a lengthy statement of the grievances of the king against the council and the council's replies, seems to imply the existence of a collection covering the period from June, 1258, to February, 1261.2 The Coke Roll contained an extensive collection of documents covering less than a year from June, 1258, onwards. We can, we think, point to evidence that these collections were made with a practical end in view, and were not merely put together as souvenirs or to gratify monastic historians. We have already drawn attention to the differences in the lists of those composing the council of Fifteen, the Twelve and the Twenty-four to treat of the aid for the king.3 These differences can only have been due to attempts to keep the lists up to date, although it would seem that an imperfect indication of the omission of a name might cause the copyist sometimes to include one or two too many : in this way we may account for the twenty-five names in Tiberius B. IV and the twenty-six names in the Coke Roll, where we require only twenty-four for the complement of the commission to treat of the aid. The differences in the lists of the council and the Twelve are of greater historical importance and merit some detailed study. We should compare the lists supplied by the different versions of the " Provisions of Oxford " with lists entered upon the Close Cf. Flores Historiarían, ii. 473-4 : " quarum tenor [sc. letters from the king in 1261] in fine huius libri vna cum prouisionibus Oxonie apponetur." Apart, however, from the letters between the barons and the pope (Chronica Maiora, vi. 400-16), the only documents in the Liber Additamentorwn likely to have come from such a collection are the incomplete " Nova provisio Magnatum " (pp. 4%, 497 n.) and the " Provisions of Westminster " (p. 512), both of which have been edited by Professor E. F. Jacob, Oxford Studies in Social and Legal History, viii. 366-76. The copy of the writ of 28 July, 1258, inserted in the Liber Additamentorwn seems to have been obtained locally, for it is taken from that addressed to the four knights appointed for Hertfordshire (Chronica Maiora, vi. 396-7), while the copy used by the Burton annalist looks like an official draft (Amales Monas t id, i. 456-7). 1 Tiberius B. IV, f os. 213 ff. The second document has been printed by Professor E. F. Jacob in English Historical Review, XLI, 564-71. * Above, p. 6. 1


m is

Roll about the end of April, 1259,1 and upon the Memoranda Roll of the Lord Treasurer's Remembrancer in the Michaelmas term, 1259.2 The lists in the Burton Annals and Tiberius B. IV are identical and we have therefore four lists in all, covering a period roughly from June, 1258, to September, 1259. For convenience we set them out below, reducing each list to the order in which the names appear in the Burton Annals :—3 THE COUNCIL. Close Burton. Tiberius. Roll. (1) Archb. of Canterbury (1) (1) (2) Bishop of Worcester (2) (2) (3) Earl of Leicester (3) (3) (4) Earl of Gloucester (4) (4) (5) Earl Marshal (5) (5) (6) Peter of Savoy (6) (9) (7) EarlofAumale (7) (6) (8) Earl of Warwick (8) (8) (9) Earl of Hereford (9) (7) (10) John Mansel (10) (10) (11) JohnfitzGeoffrey (11) — (12) Peter deMontfort (12) (13) (13) Richard Grey (13) (12) (14) Roger Mortimer (14) (11) (15)JamesofAudley (15) (14) Philip Basset Hugh Bigod, Justiciar — (15) Henry of Wingham, Chancellor — (16)

Coke L.T.R. Roll. Mm. Roll. (1) (1) (2) (2) (3) (3) (4) (4) (5) (5) (6) (7) (8) (8) (9) (9) (7) (6) (10) (10) (12) (15) (13) (14) (14) (11) (15) (12) (11) (13) — — —

—

'Close Roll, 43 Henry HI (C. 54/74), m. 12d. The lists of the Fifteen " lurati de consilio Regis " and the Twelve " lurati ex parte communitatis regni " are undated, but their place upon the roll indicates their date, apart from internal evidence. 2 E. 368/35, m. 4, entered among the Communia of the Michaelmas term: the list of those " ex parte communitatis electi" are entered on the face of the roll and upon the dorse is a list headed " Isti sunt de Consilio." 3 The original order in each case is indicated by the five series of numbers which follow the sequence of the manuscripts. We cannot trace any significance in the variations in order. The close relation between the Burton-Tiberius and Coke texts is, however, evident. In the original list of the Twelve the name of Philip Basset must have been so written as to make his position uncertain: his name is, however, the only one that varies in its order. In the Coke list of the Council, Philip Basset fills the place left vacant by John fitz Geoffrey's death, but there is no other variation except that the earls of Aumale and Hereford have been reversed in order.

Ill 16

THE TWELVE. Close

Burton. Tiberius. Roll. (1) Bishop of London (1) (1) (2) Earl of Winchester (2) (3) (3) [Humphrey deBohun] (3) (9) (4) Philip Basset (12) (2) (5) JohnBalliol (4) (4) (6) John of Verdun (5) (7) John Grey (6) (11) (8)RogerofSumery (7) (10) (9)RogerofMonthaut (8) (12) (10) Hugh Despenser (9) (5) (11) Thomas Gresley (10) (7) (12) Giles of Argenten (11) (8) William Bardolf (6) Earl of Oxford -

Coke

L.T.R.

Roll. Mem. Roll. (13) (1) (1) (2) (3) (4) (12) (3) (14) (5) (8) (6) (7) (7) (9) (8) (4) (9) (5) (10) (11) (11) (10) (12) (6) (2)

From these lists it would seem as though the vacancy in the council caused by the death of John fitz Geoffrey in November, 1258, was not filled by the appointment of Philip Basset until six months or more had elapsed. It should be noted that, although the names of the justiciar and the chancellor are added to the Close Roll list, this does not imply that either was among the Fifteen ; quite obviously their presence on the council would be a matter of right.1 That their names are omitted from the other 1

Another list, dated 13 October, 1259, identical with that in the Coke Roll and the Memoranda Roll, but with the addition of the name of " Hugues le Bigot, justice de Angleterre," is to be found in the ratification of the Treaty of Paris by the council (Layettes du Trésor des Charles, iii. 490; also, from an incorrect copy among the Carte Papers, Foedera, i. 390). Hugh Bigod's name appears also in what seems intended for a list of the Fifteen in the Crónica Maiorum et Vicecomitum Londoniarum, s.a. 1257-58, which, however, lacks the names of Richard Grey and John fitz Geoffrey, although it seems to date from before the death of the latter, who is subsequently mentioned. Hugh Bigod must presumably be included as justiciar (Liber de Antiquis Legibus, pp. 37-8). The notes of warranty on the Chancery Rolls also frequently include the justiciar by name among the members of the council: Cal. Patent Rolls (1247-58), p. 440, (1258-66), pp. 8,11,60,61,63 et passim ; Col. Charter Rolls, ii. 23 ; Close Roll 42 Henry III (C. 54/73), mm. 5, 4, 43 Henry III (C. 54/74), mm. 14, 6, 5d, 44 Henry III (C. 54/75), mm. 19d, 14,9, (C. 54/76), mm. 4d, 2d; Fine Roll 43 Henry III (C. 60/56), m. 10,44 Henry III (C. 60/57), m. 11. The name of the chancellor is rarely mentioned in notes of warranty since he was assumed to be cognizant of all documents sealed (cf. Maxwell-Lyte, Great Seal, pp. 141 if.); we do, however, find instructions of 16 November, 1258, to the justiciar and James le Sauvage, "prout nuper de consilio magnatum Regis ordinatum fuit," warranted " per mandatum domini H. de Wengham " (C. 54/74, m. 15).


in 17

lists signified no more than that their membership of the council was assumed. The important question was " which of the magnates was required to attend although holding no ministerial office ? "; in other words, " who constituted the Fifteen1 " ? It may be observed that Humphrey de Bohun appears as " Earl of Hereford " in the Burton-Tiberius list of the Twelve,2 and that in both the Coke Roll and the Memoranda Roll the name of Philip Basset has been included among the Twelve, presumably by mistake, after his appointment to the Council. It may further be noted that Fulk Basset, bishop of London (against whose name the word mortuus has been written in the Memoranda Roll), died on 21 May, 1259,3 and that John of Verdun had already left for Ireland on 23 May when he was granted letters of protection until Christmas; * this may account for the omission of the latter from the Close Roll list, William Bardolf taking his place. We surmise that the vacancy left by the death of the bishop of London was filled by the reappointment of John of Verdun, as indicated in the Coke Roll, and that the earl of Oxford displaced Philip Basset, as the Memoranda Roll suggests. Just as the lists of the Council and the Twelve were kept up to date, so it is probable that some attempt was made to keep up to date the list of the keepers of the king's castles. The list on the Coke Roll has not been preserved in the abstract (paragraph no. 14), and we are therefore deprived in this case of the opportunity of comparing the names with the other lists that have 1

The expression frequently used at this time, that action was taken " de consilio procerum (or magnatum) qui sunt de consilio," or some similar phrase, appears undoubtedly to indicate that the Fifteen, or a sufficient number of them, were present. For examples of this formula, see Excerpta e Rotulis Finitan, iii. 296, 309,318,334; Cal. Patent Rolls (¡247-58), pp. 644,649,650,654 (1258-66), pp. 1, 3, 4 et passim ; Col. Charter Rolls, iii. 16-18, 20, 25-7, 35 ; Close Roll 42 Henry III (C. 54/73), m. 2d, 43 Henry III (C. 54/74), mm. 15, 15d, 13d, 44 Henry III (C. 54/75), mm. 8, 5, 2. 2 Cf. Treharne, op. at., p. 87 n. 3 His burial is recorded on 25 May (Matthew Paris, Chronica Maiora, v. 747), but no chronicler appears to give the day of his death ; his obit, however, was celebrated on the 21st (Sparrow Simpson, Documents illustrating the history of St. Paul's Cathedral, pp. 66, 84); cf. Cal. Patent Rolls (1258-66), p. 23 : licence to elect, 24 May.

*/tet

Ill 18

survived. We may remark, however, that the list in Tiberius B. IV includes the name of William of Clare as keeper of Winchester Castle,1 while the list in the Burton Annals leaves the name of the keeper blank.2 We know from the Patent Roll that the castle was committed to William of Clare on 22 June, 1258, but, his death speedily following,8 it was on 4 August committed to the earl of Leicester.4 The conclusion seems necessary that the original of the list of keepers of castles in the Burton Annals was corrected before 4 August, 1258, while the corresponding list in Tiberius B. IV escaped correction, although the list of the commission to treat of the aid for the king in the same manuscript had been subsequently corrected, if imperfectly.5 The entire omission of Scarborough and Northampton Castles 6 from the Tiberius list does not seem to have any significance ; it was presumably one of the several copyist's errors to be found in that version of the " Provisions of Oxford." Incidentally it will be observed that the heading of the list in the Coke Roll shows that it was the Twenty-four who determined to whom the castles should be allotted,7 a fact seemingly not specifically mentioned elsewhere. Since this action was in compliance with two articles of the petition of the barons,8 it seems reasonable to deduce that the petition as a whole was referred to the Twenty-four. It seems to have escaped notice,9 we may add, that, of the twenty-one castles in the list, in the case a Tiberius B. IV, fo. 214 v°. Ármales Mmastici, i. 453. He was alive in the early days of July, since he was one of the knights sent " ad arrestandum et consignandum " the money deposited by the Poitevins in religious houses : see Col. Patent Rolls (1247-58), p. 643, Ármales Monastid, i. 445. 4 Col. Patent Rolls (¡247-58), p. 638. M. Bernont falls into error in putting the date back to June (Simon de Montfort (1930), pp. 161-2). 1 s

5

6

Above, p. 6.

It is, however, evident that Gilbert of Ghent did not at once obtain possession oí Scarborough Castle, see Cal. Patent Rolls (1247-58), pp. 638, 665 ; and on 29 March, 1259, the appointment of keepers was renewed in the case of Dover, Scarborough, Nottingham and Bamborough, apparently because a new oath was exacted giving greater control to the Fifteen: Caí. Patent Rolls (1258-66), p. 19. 7 An entry of 9 September, 1259, on the Patent Roll states that this was done by the " nobles of the council" at the Oxford parliament, Cal. Patent Rolls (1258-66), p. 42. 8 Amales Monastic!, i. 439. ' Cf. Treharne, op. cit., p. 74.


in 19

of seven—Devizes, Horston, Gloucester, Rochester, Canterbury, Newcastle-upon-Tyne and Bamborough—no change whatever was made; the five keepers of these castles were presumably confirmed in their office, but no fresh instructions of any kind appear to have been issued to them.1 It will be evident from what has been said that all the texts of the " Provisions of Oxford " have suffered correction to a greater or less degree : all too have suffered in other ways. It must, we think, be obvious that the original behind the texts provided by the Burton Annals and Tiberius B. IV was in a state of confusion and included matter which, strictly speaking, is irrelevant. The list of the Twenty-four could not have formed part of the " Provisions of Oxford," for, as Professor Powicke has emphasised, the Twenty-four were appointed early in May.2 It is not therefore an indication of incompleteness if the Coke Roll omitted this list. The Coke Roll, however, lacked also a large section of seven articles dealing with the reform of the Church, the appointment of the justiciar, the treasurer and the chancellor, the powers of the justiciar and the taking of rewards by the king's ministers, the appointment of sheriffs, and the 1

John du Plessis, however, superseded Robert Neville at Newcastle on 3 November, 1258 : Cal Patent Rolls (1247-58), p. 655. For the keepers of the seven castles before the Oxford parliament, see ibid., pp. 417, 419. 457, 620, 622. The bulk of the new appointments settled at Oxford had effect from 22 June, others from 23 and 27 June, ibid., pp. 637-9. Sherborne, which is not mentioned in either the Burton Annals or Tiberius B. IV, was not committed to Stephen Longespee, who already had been given Gorfe, until 11 July, but this decision was taken after the break-up of the Oxford Parliament (ibid., p. 639). For later changes see ibid., pp. 649, 654-5. 2 Baronial Council, p. 120. We doubt, however, whether they " had probably been at work for a month before the adjourned parliament met," if by this is meant that they assembled as a body and drafted proposals. The language of the letters patent of 2 May (Foedera, i. 371—the Calendar is inaccurate) and of 5 May (Cal. Patent Rolls (1247-58), p. 627) seems impossible to reconcile with this view. Probably members of both groups of twelve did in the interval consider to some extent the problems with which they were charged, and there may have been opportunities for consultations between both sides; but three of the Twenty-four, Simon de Montfort, Guy de Lusignan and Hugh Bigod, were for practically the whole of the time in France (M. Gavrilovitch, Elude sur le Traite de París de 1259, pp. 22-5 ; Foedera, i. 371 ; Layettes du Trésor des Charles, iii. 413-15), and it seems certain that the first formal meeting was at Oxford. See Treharne, op. cit., p. 69, for a similar view to our own.

Ill 20

reform of the Jewry.1 The explanation of this omission is, doubtless, that the section should come at the beginning of the " Provisions," that it was lost from the Coke Roll—being written perhaps on a separate membrane—sometime between the date of its writing and the seventeenth century, and that it was misplaced in the Burton-Tiberius original. Nor can we conceive of any document such as the " Provisions of Oxford " being drafted in a way which put an article providing for the reform of the Church in the place it occupies in the Burton Annals and Tiberius B. IV ; the mediaeval sense of propriety would, without question, have put the Church in the first paragraph. The four articles which deal with the principal officers of the Crown thereupon follow logically z and, it may be noted, grammatically. The article concerning sheriffs comes naturally after one dealing with the king's ministers, and a reference to the exchequer might well then suggest the Jewry. Escheators are a kindred subject, and with the paragraph that concerns them we come to the beginning of the Coke Roll, the order of which seems manifestly superior to that of the other texts. It seems obvious, for example, that the oath of keepers of the castles and their names should come together, as they do in the Patent Roll3 and the Coke Roll, and should not be widely separated. And again, the provision that three parliaments are to be held a year should come logically before the names of the Twelve elected to treat with the council at those parliaments. Two paragraphs, however, in the first twenty-two articles of the Coke Roll appear to be interpolations : the eleventh which records the delay granted to Henry of Almaine before deciding whether or not to take the oath of the Commune, and the thirteenth, the king's letter of 4 August, 1258. The former is not in parí materia, and makes an obvious interruption ; the latter, being subsequent to the date of the proceedings at Oxford, seems manifestly out of place. For in our view it seems necessary to suppose that the conclusions of the Oxford parliaAnnales Monastici, i. 450-1 ; above, p. 5. The appointment of the justiciar was certainly one of the first acts of the Oxford parliament: Annales Monastici, i. 443 ; iii. 209; iv. 119. Hugh Bigod is officially styled " justiciar of England " on 22 June: Cal. Patent Rolls (1247-58), pp. 637-8 ; cf. Treharne, op. at., p. 74. * Ibid., pp. 637-9. 1 2


in 21

ment were reduced to writing, not only in the form of separate memoranda as individual decisions were made, but in the form of ordered minutes to which reference could be made by the new government which carried on the work of the Twenty-four. Some explanation is needed of the relations between the Twenty-four and the reconstituted Council to which they handed over the task of reform. We must admit that the exact scope of the activities of the Twenty-four is likely to remain conjectural, largely, however, because the conception of what should be their functions changed rapidly under the impact of the events of June and July, 1258. Originally they seem to have been charged with all save, perhaps, the routine work of the king's council. Besides their general duty to " order, rectify and reform " the affairs of the kingdom,1 they were expected, for example, to settle the difference between the king and Simon de Montfort as to the lands to be assigned in respect of the yearly fee and the debts due to him.2 The statement in the " Provisions of Oxford " that the Twenty-four were to reform the affairs of the Church " kant il verrunt liu et tens " shows pretty conclusively that the gravamina of the clergy,3 as well as the "Petition of the Barons,"4 had been referred to them. Ultimately the Twenty-four were superseded by the Fifteen; but for a few weeks the two bodies may have had some sort of co-existence.5 The Fifteen had not been selected by 22 June,6 but the new council was certainly constituted by the 28th, upon which day Henry of Wingham took oath " coram baronibus Anglic de custodia sigilli Regis." 7 The Lusignans had withdrawn in the Foedera, i. 371. * Cal. Patent Rolls (1247-58), p. 627. Ármales Monastic!, i. 412 if. The articles as given here are presumably not in the form in which they were ultimately presented to the king. 4 Above, p. 5. 5 As seems to be implied by the language of the paragraph in the " Provisions " dealing with the chancellor's oath (see below, p. 25). Dr. Treharne takes another view (op. eft., p. 75), but he does not explain why the king delayed until 4 August his formal acceptance of the council of Fifteen. There are, of course, difficulties, however we explain the sequence of events. 6 Shirley, Letters of Henry III, pp. 127-8 ; Cal. Patent Rolls (1247-58), p. 637. 7 Close Roll 42 Henry III (C. 54/73), m. 6d. The oath was, of course, that set out in the " Provisions of Oxford " requiring the assent of the council to all important documents that passed the seal (Annales Monastic!, i. 439). 1 3

Ill 22

interval; * and on the 28th the Oxford parliament seems to have broken up to go in their pursuit. Some days of confusion followed. Wingham himself did not rejoin the king until 3 July at Winchester.2 On 5 July the Lusignans received their safeconduct for overseas.8 Since William of Valence and Guy and Aylmer of Lusignan had been three of the Twenty-four, it is obvious that three vacancies were now created, unless, as is indeed probable, they had already been replaced by Peter of Savoy, the earl of Aumale and James of Audley, the three magnates elected to the council of Fifteen, who were not among the king's or barons' original nominees. However that may be, only seven of the Twenty-four (excluding the Lusignans) did not find a place either among the Fifteen or in an office which constituted membership of the council, for, as we have already pointed out, Hugh Bigod and Henry of Wingham, as justiciar and chancellor, were members ex officio. It might well, therefore, have been difficult to have distinguished the actions of the Twenty-four from those of the council, but it seems certain that it was quite definitely the council that at once took up the tasks left unfinished at Oxford, and also assumed the direction of current affairs. On 8 July, while the court was still at Winchester, it was arranged that the " amendment a la Gyuerie," which is mentioned in the " Provisions of Oxford " as a task to be performed, should be considered on the 28th of the month. The entry on the Close Roll4 is worth reproducing in full: De ludeis.—Quia Rex intendit ordinare de ludaismo suo per consilium suum die dominica próxima post festum sánete Marie Magdalene, prouisum est per consilium Regis et mandatum est Balliuo de Walingford', et constabulariis Castri Wintonie et Tunis Londoniarum quod omnes prisones lúdeos in custodia sua detentes deliberent quousque prouisio predicta facta fuerit.

It is evident from this that not only had the council fixed the day for the consideration of the question, but that it was the council which would decide upon the reforms to be effected. In the Cf. Cal. Patent Rolls (1247-58), p. 664: letters of safe-conduct of 28 June to Aylmer, elect of Winchester, William of Valence and Geoffrey and Guy of Lusignan. 4 a 3 C. 54/73, m. 6d. Close Roll, loc. at. * Foedera, i. 374. 1


m 23

latter part of July also a large number of letters, all bearing the date I August, were prepared and dispatched to Rome by the hands of master Rostand, the nuncio ; " and all this," we are told, " was done by the counsel of the earl of Leicester, the earl Marshal, Peter of Savoy, the earl of Warwick, John Maunsel, John fitz Geoffrey, Peter de Montfort and others of the king's council." 1 Moreover, we have the notes of warranty upon the chancery rolls which clearly testify to the authority exercised by the council from 6 July onwards.2 But it would seem as though the committee of the Twentyfour had not yet been formally dissolved. A passage in the Crónica Maiorum et Vicecomitum Londoniarum describes the action of " quidam de predictis duodecim baronibus "—presumably the twelve elected in May ex parte proceram—in obtaining the formal adherence of the City to " quicquid predicti barones providissent ad commodum et emendationem regni." This was on 23 July ; 8 on 4 August, but not until then, the king formally announced the constitution of "nostre conseil des prodes hommes de nostre terre " for redressing and amending all the affairs of king and kingdom, promised to accept the decisions of the majority, and required general obedience to their " establissemenz." * From that date, therefore, the Fifteen, together with the justiciar, constituted the effective and acknowledged governC. 54/73. m. 4d.; Foedera, i. 376. With Caí. Patent Rolls (1247-58), p. 640, where, on that date, the earl of Leicester, the earl of Gloucester, the earl Marshal, the justiciar, John fitz Geoffrey, John Maunsel and others of the king's council are warranted, compare ibid. (1258-66), pp. 8, 11, 15 et passim. On the Close Roll the formula " per consilium Regis " is employed on 6 and 7 July (C. 54/73, m. 6d), on 9 July, " per Hugonem Bigod iusticiarium et consilium Regis " (ibid., m. 5). Warranty " per consilium " is, of course, ambiguous : letters so warranted may be found on 21 June and the council in this instance may be the Twenty-four (Cal. Patent Rolls (1247-58), p. 636). 3 Liber de Antiquis Legibus, pp. 38-9. We must remember that, including the justiciar, ten of the twelve baronial nominees were on the council; they could therefore be rightly described as deliberating between 23 July and 5 August " super usibus et consuetudinibus regni in melius conformaríais," for this the council was doing. 4 Letters of Henry III, p. 129. It is perhaps not without significance that on this same day Simon de Montfort was appointed keeper of Winchester Castle; above, p. 18. 1 2

Ill 24

ment of the country ; 1 up to that date, however, it seems to have lacked formal recognition and to have been covertly opposed by the king and his friends. The council proceeded with the tasks set by the Oxford parliament. On 5 August, the day after the king's announcement of the new council, proclamation was made in London regulating the exercise of the king's right of prise,2 one of the reforms, as the Coke Roll indicates, decided upon at Oxford. Other reforms, in particular those demanding more formal legislation, could not be accomplished so speedily; but again we may note that the limitation upon the acquisition of land by religious houses, another of the reforms of the Oxford parliament of which we are informed by the Coke Roll, was included in the " Provisions of Westminster " in October, 1259.3 Without attempting, however, to show in any detail the manner and order in which effect was given to the resolutions of the Oxford parliament, it is clear that very little was accomplished immediately, and that it was some weeks before the council had a free hand. It was then a mere matter of prudence to collect the scattered memoranda of such decisions as had been taken, and to reduce them to order. This step was taken, it would seem, early in July or on the last day or two of June, for we have no hesitation in ascribing the original of the Burton-Tiberius text to that time. The list of keepers of castles contains no appointment later than 27 June: it is an Oxford list.4 Nor is there anything in the original—as distinguished from corrections in the two copies—which points to the use of material of a date later than June or (excepting the paragraphs regarding the election of the Twenty-four) from any source other than the resolutions of the Oxford parliament. The confusion of the text may be due to haste or to the incompetence of the clerk employed to put together material on perhaps half-a-dozen slips of parchment ; As Professor Powicke has demonstrated, op. cit. Even more convincing perhaps is the separate ratification of the Treaty of Paris by the Fifteen and the justiciar (Layettes da Trésor des Charles, iii. 490 ; above, p. 16). 2 Liber de Antiquis Legibus, p. 39. 3 Statutes of the Realm, i. 10; Ármales Monastici, i. 474, 482. 1 Above, p. 19. 1


m 25

but the confusion certainly dates from the day of the redaction of the document. The date of the Coke text is less certain. It did not owe its origin to an attempt to correct the Burton-Tiberius text: it was an independent recension of similar, but not quite identical, material. Where the Coke Roll gave a French version of what appears'in Latin in the Burton-Tiberius text—as in paragraphs nos. 6, 18, 19 and 21—we can be pretty sure that the two compilers had before them the memoranda of different clerks. On the whole, it seems most likely that the Coke text was compiled at very much the same time as the Burton-Tiberius text, when the desirability, if not the need, of a permanent record of the resolutions of the Oxford parliament was most obvious. If that is so, the corrections in the various lists, as well as the interpolations of paragraphs nos. 11 and 13 and the addition of paragraphs nos. 23 to 33 in the abstract, would have been the work of a later hand. Whether the Coke Roll was the altered original or a copy of it we have no means of knowing. We have inferred that the " Provisions of Oxford " are in fact the resolutions of the Oxford parliament and not merely the resolutions of the Twenty-four. What we conceive to have happened is that the Twenty-four, from time to time during the session of the parliament, stated their proposals and that, possibly after debate, these received the approbation of the king and others present. In this way the language and some of the inconsistencies of the document can be explained. The Twenty-four never speak in the first person : if they speak at all in any of the articles it is in oratio obliqua. Next, if we examine the paragraphs concerning the chancellor, we must recognise that the oath which he is to take was drafted on some other occasion than the brief article which we would place fourth in the proper order of the " Provisions." * Note the attempt to provide for every eventuality, while there is some effort to soften the language. By the earlier article the chancellor is required not to seal anything " hors de curs par la sule volunte del rei, mes le face par le For the two articles, see Ármales Monastici, i. 439. Only the oath was to be found on the Coke Roll (paragraph no. 17), the other article, as we conceive, must have been upon an earlier membrane subsequently lost; see above, p. 19. 1

Ill 26

cunseil ke serra entur le reí." In the later article such things are not to be sealed " sanz le commandement Ie rei e de sun cunseil ke serra present "—a delicate restatement of the position —while grants of any considerable wardship or sum of money or escheat require the agreement of the Fifteen,1 and nothing must be sealed contrary to any ordinance made or to be made by the Twenty-four. Again, the two paragraphs regarding the election of the Fifteen are clearly the work of two occasions ; and that which formed paragraph no. 10 of the Coke Roll must be earlier than the paragraph (no. 19) giving the names of the council.2 Does either text of the " Provisions of Oxford " possess any special authority ? There can, of course, be no question of the substantial authenticity of each separate paragraph. In some instances we possess independent official texts of the same documents ; 3 and where we do not, other contemporary evidence is as a rule conclusive.4 The question we wish to put is whether the Coke text, as we might reconstruct it, is more " official " than the Burton-Tiberius text. Manifestly it is superior in arrangement and, if we are right in our assumption that when it came into Selden's hands it had lost the opening section which we can restore from the Burton-Tiberius text, the Coke text was more complete, since it supplied two additional articles (nos. 2 and 7). But even so we cannot regard the Coke text as anything more than ordered memoranda prepared for the information of some 1

This is, we think, implied by the words " le assentement del grant cunseil." In the fourteenth century the term " great council" appears always to indicate the presence of magnates as well as ministers : it is not a common expression in the thirteenth century. 2 The repetition of the names of the four electors and the method of election indicates that paragraph no. 20 with no. 19 once formed an independent document, the whole of which was mechanically copied. 3 Besides the lists of the Fifteen and the Twelve, the oath of the keepers of castles which is to be found on the Patent Roll (Calendar (1247-58), p. 637) and the K.R. Memoranda Roll (E. 159/32, m. 11, schedule). 4 E.g. the names of the four electors are on the Patent Roll (Shirley, Royal Letters, ii. 128; Calendar (1247'58), p. 637), as are also the names of the keepers of castles (above, p. 306 f.). The provision for three parliaments a year is mentioned in the replies of Simon de Montfort to the articles drawn up against him in 1260 (Bémont, Simon de Montfort (1884), p. 351). And see pp. 5, 19 above as to the Jewry and paragraphs nos. 2 and 7 of the Coke Roll.


m 27

member or members of the council. In this sense we believe the Coke text to have been official, and we regard the BurtonTiberius original in the same light, the latter being a less carefully compiled document by a less able clerk, but intended to serve a similar purpose. Knowledge of these memoranda was for the few within the government circle and for those to whom they cared to communicate them. That neither text was intended as a public document is practically certain, since, apart from the absence of the " Provisions of Oxford " from any roll of the chancery and exchequer, there is no evidence of such a document in an authoritative form, with preamble or attestation, and this at a time when documents intended for public information were drawn up with careful attention to such clauses. The " Provisions of Oxford " were not designed, then, to be a permanent record. The purpose of such copies as were made was temporary and practical. By the time the Michaelmas parliament of 1259 had accomplished much of the task that had been begun at Oxford, their immediate interest must have diminished ; and it may be significant that neither in the Burton-Tiberius text nor in the Coke text can we date any alteration later than the autumn of 1259.1 Before many months were over there were no further alterations to make. Public documents continue regularly to refer to the authority of the magnates of the council until about the end of 1260,2 but soon after cease to do so, although a grant is made by their advice on 7 January, 1261,3 and there seems to be a reference to action 1

As shown in particular by the lists of the council and the Twelve. It may be noted that early in 1260 Peter of Savoy seems to have been removed from the council (Bémont, 5ímon de Montfort (1884), p. 351), while another vacancy was created by the death of the Earl of Aumale at Amiens a few months later (Flores Historiarían, ii. 450; Excerpta e Rotulis Finium, ii. 327). Again, the death of Roger of Monthaut some time before 28 June, 1260 (ibid., ii. 329) must have created a vacancy among the Twelve. 2 For instances in October and November see Cal. Patent Rolls (1258-66), pp. 95-7, J27-8, Close Roll, 45 Henry III (C. 54/77), mm. 25, 26d. Notes of warranty " per consilium " continue into December in the Close Roll and then cease. Dr. Treharne believes that internal changes and conflict altered the character of the council during 1260 (op. erf., pp. 235 ff.); nominally, at all events, it kept in being until early in 1261. 3 Cal. Charter Rolls, ii. 35.

Ill 28

taken with their approval in February.1 Certainly it was intended in November, 1260, that the claim of the Earl Marshal to the custody of prisoners condemned in the eyres of the justiciar should be determined by the magnates of the council in the following Candlemas parliament.3 This parliament, meeting on 23 February,3 to which the king invited his friends to come in arms,4 is, however, the turning point. The smouldering dissension flared up into acrimonious dispute between king and council.6 Thereafter there are no more references to the authority of the magnates of the council: the king is governing without their advice.8 When the king had struggled free from baronial control, the details of the " Provisions of Oxford " could have had little more than historical interest. It is true that they continued to furnish a text to the dissident barons, and when in August, 1261, John Maunsel summoned Hugh Bigod to surrender Scarborough and Pickering castles he was met with the reminder that the authority of the king and a majority of the council was necessary to relieve the keeper of his charge.7 But this was no more than a taunt at an old colleague who had broken the common oath. The opponents of the king were now indeed the magnates rebelles that he called them,8 and both sides had departed finally and irrevocably from the constitution sworn to at Oxford. When after Lewes a new constitutional scheme was produced it was on another basis than that of 1258. It remains to add that the text below has been based upon the manuscript in the Petyt collection (for permission to print which we are indebted to the Library Committee of the Inner Cal. Patent Rolls (1258-66), pp. 142, 149; the reference to them on p. 151 takes us back to 1258. 2 Trans. Royal Hist. Soc., Fourth Series, v. 61. 1

3

5

C. 54/77, m. 17.

4

Lords' Reports, iii. 23.

To this parliament we would ascribe the articles of the king against the council and the council's replies, preserved in Tiberius B. IV. 6 Cf. Flores Historiarían, 'ú. 464, where the king, addressing the magnates (of the council) apparently on the occasion of this parliament, is reported as saying: " Unde non miremini si, vestro non amplius consensurus consilio, vos vobis relinquam de cetera." 7 Foedera, i. 409. 8

Close Roll 45 Henry III (C. 54/77), m. 8d (22 August, 1261).


in 29

Temple), but we have noted the variations in the Stowe manuscript. Little further annotation is necessary, since we have already indicated where the text of any known documents summarised in the abstract may be found. [fo. 53] Rotulus Parliamenti anno 42° H. 3 apud V[irum] C[larissimum] abridged by Mr Selden out of the Originall Roll which he borrowed of Mr Edward Cooke.1 [1] Des2Escheatours. That they take nothing of the Kings estate etc. [2] De prises le Roy. Que les prises soient prise etc. au preu du Roy et du Roiaume. [3] La chartre de la Franchise soit garde fermement. [4] Des iiij Chivalers. To be appointed for hearing all plaints of the people, so many in every County. [5] Du Change du s Londres. A remembrer fet du Change du Londres amender et de la Citee de Londres et de totes les autres viles le Roy que a honte et destruction sont ales par taileages et autres oppressions. [6] De L'ostel le Roy et la Royne. A remembrance to reforme them. [7] A remembrance that Relligious persons purchase not so much. [8] H fet a remembrefr] que les xxiiij ont * ordene qe iij Parlements soient per an le premer as oiteves [fo. 53¿] de St. Michel, le secunz le demaine de la Chandeleur, la tierce le primer jour de Juyn, Cestassavoir trois semains devant la Seint Jean. Et a ces iij parlements vendront le Consilers le Roy esleus tot ne soient il maunde pur voer 5 [le estat] ' du Royaume, e pur treter des communes busoignes du Roy e du Reaume. E autrement foiz' asemblerent quant mestier serra par le mandement le Roy. [9] Des xij qi vendront as Parlementz pur Ie Común. II fet a remembrer qe le Común eslise xij preudes homes qi vindront as Parlementz ou autre fois quant mestier serra ou quant le Roí ou son 1

Inner Temple, Petyt MS. no. 553/6. Stowe MS. 1029 adds the note ' v. Annals of Burton, p. 412,* a reference to Fulman's Renán Anglicarum Scrip/ores Féferes (1684). 2 After this word is a comma which the transcriber of the Stowe MS. has mistaken for thefigure' j.' 8 Sic both MSS. • Both MSS.' on.' 6 Stowe MS. * voir.' • Both MSS. omit. 7 MSS. ' f.' Cf. Tiberius B. IV: " et autre foitz ensemblerent quant mester serra . . ."

Ill 30

Counsil les mandera pur treter des comunes busoignes du Roy e du Reaume et que le común tendrá pur estable ce que les xij ferront. Et ce [serra]1 fet por espemier le coust du común. [10} Des xv. nomes. That the 24 should name which they did that is the Erie Roger the Mareshall, the E. of Warwicke, Monsieur le Bigod and MT John Mansell. And they should name xv. to counsel! the King and governe the Realme etc. and that which they [ fo. 54] did should hold ferme etc. or the major part. Yt appeares there that was 42 H. 3.z [11] Fet a remembrar que le merkerdie prochein apres la Seint John requi . . .3 Monsieur H. fuis le Roy D'Alemaigne iour iesque as oiteves de la guie D'August a respondre selonc le mandement du Roy son pere, le quel il vodra sea * le serement que le Común D'Angleterre a fet ou non. [12] The Counsellours of the King took their Oath. [13] Littera Domini Regis super rati . . . 6 Consilii sui eligendi. H. par le grace de Dieu Roi d'Engleterre a touz saluz. Sachez qe por Ie profit de nostre Reaume et a request de noz hauz homes et preudesomes de Común de nostre Royaume otreames qe xxiiij de noz homes etc. And so according to that before ad signum.6 Sworne to by the King and Prince dated at London, le demainer prochein apres la guie haaust7 Ian de nostre Coronement xlij. [14] Les nomes des Chastiaus et des gardians liveres au parlement d'Oxford par le Rei et par les xxiiij Jurez. The names of the Castles and the Keepers follow. [15] Le serement de Gardeins de Chastiaus. [16] La forme de serement la Justise. [fo. 54A] For dooing Justice generally and as the xxiiij etc. [17] La serement du Chanceler.8 That he shall seal no writt fors breve du course sans le comandement le Roy e son Conseil qe serra present etc. nor against the ordinances of the xxiiij, nor take any reward autrement etc. 1

Both MSS. omit. Stowe MS.' that appears ... 42 H. 3.' The first three words should run on to ' the major part.' The indication of date belongs properly to the next paragraph. 3 Gap in both MSS. «Sic both MSS. 5 Stowe MS. ' nati': gap in both MSS. The word may have been " ratificacione." 7 ' Referring back to paragraph no. 10. Stowe MS.' guie da aust.' 8 Tiberius B. IV, fo. 214, supplies the word missing from the chancellor's oath in the Burton Annals : it is " deneres." a


m 31

[18] Ce sont le xxiiij qi sont mis per le Común a treter de l'ayde de Roy. This number Le Evesqe de Wircestre Sire Roger de Mortimer (xlviij) is so de Londres Le seneschall de Munthaut written there Saresbury Sire Roger de Somery Le Counte de Leicestre Sire Peire de Mudford le Mareschall Sire Thorn a Grel Le Counte de Glocestre Sire Fouke de Kerdestein Sire Pierce de Savoy Sire Gile de Argentein Le Counte de Hereford Sire Gile de Erdington d'Aubemarle Sire Johan de Cryel de Wincestre Sire Ph. Bassett de Oxenford Mestre Guilliaume de Powicke1 Sire Johan le fiz Gefray Sire Johan de Daure Sire Johan de Baliov Sire Johan de Grey E si 2 ascun de ecus 8 ne poiat estre ou ne voloit qe ecus qe 4 servient5 aint pour d'autre eslire en son lieu.6. [19] Ces sunt les Nouns du Counsel Roy Jurez. Le Archevesqe de Canterb' Le Evesqe de Wincestre7 Le Counte de Laycestre Le Counte de Gloucestre Le Count le Mareschall Pierce de Savoy Le Counte de Hereford' Le Count d'Aumarle Le Counte de Warwicke Johan Maunsell Sire Ph. Bassett Sire 8 de Monford Richard de Grey Roger de Mortimer Jame de Audedel Thus written. [20] Les doze depar le Roy ont eslu des doze qui sont depar le Común, Le Counte Roger et Sire Hugh le Bigod. Et lautre parte devers le común a eslu des xij qi sunt depar le Roy le Count de Warwicke et Sire Johan Mansell et ceux iiij ont poier deslier le Conseil le Roy, et quant il averont eslu le conseil le Roy il les monstront as xx[iiij] 9 e la ou la greigner part de ceaux xxiiij si assente soit tenu. 1

2 8 Stowe MS.' Po.' Both MSS.' Est.' Petyt MS.' reux.' 5 Petyt MS.' q '; Stowe MS. * qj.' Recte ' serrunt.' 6 Tiberius B. IV reads: " Et si ascun de ceux ne peuse estre ou ne veut ceux qe serront eyent poair des autres eslire en sez lieuz." 7 Recte" Wircestre." 8 9 Both MSS. omit the Christian, name. Both MSS. omit. 4

Ill 32

[21] Les nom * de xij qi sont esluz par les Baruns a treiter aus trais Parlements par avoir2 le Conseil le Roy des comunes busoignes. Thus xlij Le Counte de Wincestre Sire Humfrey de Aboun Sire Johan de Baillol Sire Ph. Bassett Sire Johan de Verduz3 Sire Johan de Grey Sire Roger de Someroy Le seneschal de Monthaut Sire Hugh le Despenser Sire Thomas 4 Sire Gile de S.4 Sire Guilliaume Bandouf 4 [fo. 55b] [22] La fourme de Serement Común. An oath of Joyning together save la foy etc. [23] A long writt touching the reformación of the abuses of Sheriffs through all the Counties of England. And the iiij Knights to heare plaints etc. 20 Octobre anno 42 H. 3 apud Westmonasterium. [24] Litera Consiliariorum Domini Regis et xij electorum ex parte Communitatis. Le Conseil le Roy et les xij esleus par le Común Dengieterre salvent toutes gents etc. for the reformación of Justice they tell of the 4 Knights in every County and what oathes they will have taken in every franchise of their own etc. And they promysse upon their Oathes etc. la feste saint Pierre ou mais de Feurier Ian de nostre Seigneur 1258. Et tesmoigne de ceste chose nous avoms mis nos seaus a cest escrit. [25] Litera domini Regis directa iiij Militibus inquisitoribus. H. dei gratia talibus Militibus salutem. Cum nuper in Parliamento nostro Oxonie communiter fuit ordinatum 28 Julii anno 42 a Commission of oier and terminar and that the sheriffs shall take their oathes in pleno Comitatu. [26] Edwardus illustris Regis Anglie primogenitus et heres [fo. 56] omnibus etc. Salutem. his promise to the Earles Barons and Commons to keep etc. 10 Julii 1258. [27] A Writt to the Sheriff to proclaime quasdam libértales et observantias etc. anno 43 H. 3. [28] The names of the 4 Knights for every County. 1

2

8

4

Sic. both MSS. Sic. both MSS.

Recte " an oue." Sic. both MSS.


in 33

[29] The Justices et autres sages homes are summoned that between that and the next Parlement they should consider of what ill Lawes and need of reformation there were, and that they meet eight days before the Parlement beginne againe, at the place where it l shall be appointed to treat etc. [30] Le Roy et les preude homes du Común d'Angleterre porteront Chanceleir 2 a sire Edward le quel etc. shall seal nothing but what is agreed by the Counsell given him, and shall take like oath as the Kings Chanceleir 3 etc. [31] In Lettres of alliaunce between them for the service of the King and the Governement of the Kingdome. Nos Symon de Montfort Counte de Leycestre et nos Richard de Clare Counte de Gloucestre avioms mis nos seaus au eest escrit pur nos et pur ecus * du conseil etc. Et nos Roger de Quen[c]y 5 Counte de Winchestre et Thomas Creel6 auom mis nos seaus a cest escrit por nos et por les autres que sont esleuz por le [Común]7 in Febr' Fest. S. Peter 43 H. 3. [jo. 566] [32] Walter Bishopp of Winchester 8 and Giles Bishopp of Sarisburye Por toutes were procurators for all the Clergie and to the like purpose by an les Prelatz Instrument binde themselves the same day. et Clergie Dangieterre [33] Divers of the Household officers removed as Cooke, Usher of the Buttery and such. 1

Stowe MS.' that.' Stowe MS.' Counsell.' 5 Both MSS.' Queny.' 7 Petyt MS. omits.

3

2

Stowe MS.' porteront . . . Chauncelleir.' * Stowe MS. ' tous.' 6 Sic. both MSS. 8 Recle Worcester.

NOTES Page 9, n.4 et passim: The Close Rolls of Henry III have now been printed in extenso and our references to the original records can be easily traced in the printed text. 10, n.5 Above, I. 172-3. 32, 1.3 For xlii read xii.


IV REPRESENTATION

OF CITIES

Representation of Cities and Boroughs in 1268 THE subjoined document has been recently discovered at the Public Record Office amongst the Miscellanea of the Chancery, and is now included in the class of documents known as Parliament and Council Proceedings.1 It is a single membrane, 14" x 7", in a fairly good state of preservation, though in several places where the surface of the parchment has worn away, a few words have become illegible. The evident speed with which it has been written is responsible for its loose grammatical constructions. There can be little doubt that it is a fragment of council memoranda, made for the guidance of the chancellor and serving perhaps as the only warrant that the chancery had for the issue of the letters under the Great Seal to which it refers. The meeting of the council, whose deliberations are here recorded, was probably held at Westminster on or shortly after 26 March 1268. The reference to the sealing of the charter of London is especially valuable in establishing the date. This particular council could not have been held before Friday, 23 March, because on that day Henry III called before him and his council the citizens of London and confirmed to them all but one of their ancient privileges of which they had been deprived for opposing the king during the late rebellion.2 The actual charter of remission and confirmation bears the date 26 March,3 and in the present state of our knowledge of chancery practice in the time of Henry III, when we know of no letters under the privy seal or under the signet, it is only possible to take the commonsense view that as 26 March is the date from which the privileges conferred by the charter were intended to run, the king had given his definitive sanction to the granting of this charter by that date. The process of sealing the charter was, of course, subsequent to its sanction, and the deliberations of the council are definitely stated in the memoranda to be ' de carta Londonie signanda ', but it is impossible to assign a date much later than 26 March, as it is improbable that the sealing of so important an instrument could have been long delayed. By far the most important feature of the memoranda is the draft of the writ of summons issued to twenty-seven selected cities and boroughs, ordering them to send representatives to Westminster on 22 April to have special treaty and colloquy with the king on certain urgent business. There is no evidence that London received a writ, though it is very improbable that 1

Parí, and Counc. Proc., 66/6. A manuscript list is in the Public Record Office. Liber de Antiquis Legibug (Camden Soc.), p. 101. * Cal. of Charter Rolls, ii. 98 ; Historical Charters of City of London, ed. Birch, pp. 38-Í2. 1

AND BOROUGHS IN 1268

IV 581

it was unrepresented.1 The Cinque Ports, which had fought so vigorously against the king, were to have their representatives nominated by Roger de Leyburne.2 As in 1265 and 1283, the writs in 1268 were sent, not to the sheriffs, but direct to the cities and boroughs, and required the return of the mayor (or bailiffs) and six of the more discreet men, an unusually large number as compared with two in 1265, six or four in 1275 (so far as is known, four only were sent), two in 1282, and two in 1283. From 1295 onwards it was usual to summon two members only by writs addressed to the sheriffs. Each of the boroughs named in the memoranda was represented again at least once during the next reign. It has been suggested that the last six years of Henry Ill's reign may have seen borough representatives regularly summoned to meet the king, but the evidence that could be adduced was based mainly on the equivocal statements of chroniclers.3 The document printed below provides the first positive evidence that the precedent established by Simon de Montfort in 1265 had not been forgotten in immediately succeeding years. 4 Another interesting feature of the writ is the order that the representatives should come supplied with letters patent under the borough seal ' sub forma quam vobis mittimus presentibus interclusa '. The common form enclosed with the writ was to announce the names of the representatives and also to empower them to act for the whole community of their borough. It thus provides the first known instance of the formal return of the names of the representatives chosen, a practice which became general in the following reign.5 Much more important is the requirement that the representatives should bring what was virtually a power of attorney to act for their respective constituencies.6 This had not been demanded by the writs summoning representatives to 1 There seems to have been no writ sent to London for the parliament of 1265 (G. W. Prothero, Simon de Montfort, p. 308). 2 He was at this time warden of the Cinque Ports and the most powerful man in Kent. 3 MaitJand, Const. Hist., p. 73; The Statute of Marlborough of 1267 is said to have been enacted ' convocatis discrecioribus regni tarn maioribus quam minoribus'. Cf. Ann. Man., iv. 226, where it is stated that representatives of cities and boroughs were summoned in 1269 to assist at the translation of the body of Edward the Confessor to Westminster Abbey, though it may be questioned whether they remained for the subsequent parliament, at which a twentieth of the movables of all laymen was granted to the king. The same obscurity overshadowed the parliament of 1275 until the fortunate discovery of writs of summons to cities and boroughs, for which set» C. H. Jenkinson, ' The First Parliament of Edward I', ante, xxv. 231^2. 4 For the remainder of this paragraph I am indebted to the generosity of Mr. J. G. Edwards of Jesus College, Oxford. 5 Cf. ante, xxv. 231, n. 2. 6 With the sentence ' et nos quicquid in premissis nomine nostro fecerint ratum habebimus et acceptum' in the common form of 1268, ef. ' ratum et gratum habituri quidquid dictus R. procurator super premissis duxerit faciendum ' in a specimen power

IV 582

REPRESENTATION

OF

CITIES

the assemblies of 1254, 1264, and 1265, nor was it required by the writ for the first parliament of 1275. In 1283, however, the representatives of shires and boroughs were to have ' plenariam potestatem ',a and from 1290 this became a regular requirement. From the legal point of view this plena potestas of representatives was of great importance in the theory of parliamentary representation, and its first-known appearance in connexion with the borough representatives in 1268 is thus a matter of considerable interest. The meeting of Ottobono's legatine council, in which the ecclesiastical hierarchy of four countries is said to have been represented,2 at St. Paul's on 22 April, seems to have been taken as a convenient occasion at which to summon lay representatives to meet the king and his council at a season when they were accustomed to hold solemn conference. The task of reconstruction, especially in relation to the Dictum of Kenilworth, was a matter of grave national concern. The chief object of Ottobono's mission was the work of pacification, and this could never be performed until the position of the disinherited had been thoroughly investigated and some attempt made to alleviate the hardships resulting from the forfeitures and redemptions which followed hard upon the barons' wars. In consequence, besides posthumously absolving Simon de Montfort and his adherents from the sentence of excommunication which had been proclaimed against them,3 Ottobono sanctioned the imposition upon the already heavily taxed clergy of a twentieth, which was intended as a peace-offering to the king to aid the disinherited to redeem their lands.4 There are strong grounds for the belief that the Dictum also provided the reason for summoning lay representatives to the council at Westminster. Not only were the twelve executors to be present, but also Robert de Ferrers, last earl of Derby, for the redemption of whose lands special provision had been made in the Dictum itself.5 The clergy would seem not to have been the only class that might be taxed : there of attorney printed by Madox, Formulare Anglicamim, p. 346. The phrase 'ratum et gratum ', &c., frequently appears in the formal ' powers ' of borough representatives in the fourteenth century (Prynne, Brevia Parliamentaria Rediviva, pp. 274, 285, 287). 1 Parliamentary Writs, i. 10. 2 Liber de Antiquis Legibus (Camden Soc.), p. 102 : ' concilium suum generale . . . in quo fuerunt presentes, vel per se aut per procuratores, omnes Archiepiscopi, Episcopi, Abbates, et Priores, Decani, Prepositi, et Arehidiaconi totius Anglie, Hibernie, Schochie, et Wallie.' In Ann. Man. iv. 215-16, the council is said to have begun Monday, 23 April, and finished 'infra triduum '. 3 Florence of Worcester (Eng. Hist. Soc.), ii. 201. 4 J. H. Kamsay, Dawn of Ike Constitution, pp. 265-6 ; Letters from Northern Registers (Rolls Series), ed. Raine, pp. 15-18. 5 W. J. B. Kerr, Higham Ferrers and its Ducal and Royal öaslle and Park, pp. 21-6. He was kept a close prisoner at Windsor until May 1269 and never succeeded in recovering his lands from Edmund of Lancaster.


IV 583

still remained the burghers. The use of the word ' dicioribus ' may be peculiarly significant of the idea that was uppermost in the minds of the clerk and of those whose deliberations he was recording.1 A financial motive is usually, and perhaps in this case also, to be found.2 But it is entirely a matter of conjecture. The complete silence of the chroniclers, though it cannot be taken as evidence that the writs were not issued or obeyed, is at least unexpected in view of the coincidence of the lay assembly at Westminster with the legatine council at St. Paul's. It is conceivable, however, that they may have regarded a summons of this kind as uninteresting. In any case, whatever may have been the reasons for summoning the council, it seems to have been abortive in its results ; no trace can be found of any lay subsidy having been granted, and perhaps the king had to be satisfied with the tallage soon afterwards assessed.3 Parí, and Caune. Proc., File 66, no. 6. If Memorandum, cle litteris domini regis mittendis consiliariis domini regis, quod sint apud Windesoram in crastino [clausi] Pasche. . . . 11 Manda turn est eisdem qui non fuerunt4 apud Windesoram. quod sint [Westmonasterii] * ibidem [Londonie] * .die * iouis proximo post * * These words are struck through in the manuscript. Interlineations are shown between square brackets and conjectures in italics. I am indebted to Mr. C. Hilary Jenkinson for much valuable help in the elucidation of several difficult passages. 1 Cancelled in the writ in favour of ' discrecioribus'. 2 Memoranda Roll (L.T.R.), 53 Hen. Ill, m. 4 d ; the sheriff of York was commanded under heavy penalties to collect the Crown debts in his county because ' in partibus Anglie quam transmarinis quedam negocia arduissima expedienda, tarn propter stabilitamentum seu reforinacionem pacis regis quam alia, que sine magna summa pecunie rex nequivit expediré'. The writ is tested 21 November 1268-9. Knights of the shire, who received writs of summons for the first time in 1254, were usually present whenever the burgher element was represented, but we must be aware of the intrusion of modern ideas in wondering why they were not summoned on this occasion. The practice of representation was still experimental, the king took counsel when and from whom he wished, and in any case it must be remembered that the burden of the recent convulsion had fallen most heavily on the counties. • Cal. of Pat. Soils, 1266-72, pp. 226-7 ; Close Roll, 52 Hen. Ill, m. 5, 4 The reading is undoubtedly ' fuerunt', which would imply that the whole of the second paragraph was written after the meeting of the council at Windsor on 16 April. This allows only two days for summoning the councillors named and letting them reach Westminster. Moreover, it is unlikely that this document, which may have served the purpose of a chancery warrant, would have been allowed out of chancery for further use. If, as seems probable, ' fuerunt' is an error on the part of the clerk for ' fuerint', we have to suppose either that the clerk knew at the time when this document was written—about 26 March—who could and who could not be present on 16 and 18 April respectively, or that the names were added later. The latter conjecture may be correct, as the names seem to have been written by a different hand ; there is distinct evidence of crushing, which caused a further list of councillors who were to come on 18 April to be given under the list of boroughs ; whilst the fact that the date at the side of this second group of councillors is given correctly suggests that the paragraph in which it occurs was written after some of the correcting in the second paragraph.

IV 584

REPRESENTATION OF CITIES

[mercurii ante] xv Pasche. R. R.1 W. de Valencia. Ph. Basset. R. de Leyburne. R. de Aguilun. J. de la Linde. R. de Somery. W. de Mertone. 1f Scribendum est pro certis personis de quinqué portubus quas dominus R. de Leyburne debet nominare, et pro certis personis de ciuitatibus. et burgis. videlicet quod balliui et sex alii earundem de discrecioribus. maioribus. et dicioribus. quod sint Londonie a die Pasche in xv dies, videlicet de burgis et ciuitatibus propinquioribus.2 ad tractandum [et consulendum] de negociis domini regis et regni et ipsos tangentibus. et quod portent secum litteras de credencia patentes, ómnibus directas, sigillatas siguió communitatis earundem ciuitatum et burgorum. in instanti concilio Londonie conuocato et celebrando. U ítem de littera domini regís mittenda domino regi Francie de negocio burgensium Sancti Audomari. ad respondendum. pro domino Edwardo de nouo auxilio. 1Í De littera domini regis mittenda domino Ade de Gesemuthe 3 pro negocio G. de Eyuille citra Pentecosten. if Item de carta Londonie signanda. *[[ ítem scribatur executoribus et [xii] dictoribus dicti de Kenilleworthe. quod veniant ad xv Pasche. Scribatur comiti de Ferrariis ad xvam quod sit apud Westmonasterium. flegatus fepiscopus Johannes de fepiscopus WigorMeneuensis Verdun nensis fH filius regis fAlanus la R. Waleraund fWarinus de Alemannie Zuche Bassingbourne fepiscopus fRogerus de J. de Baillol fComes Gloucestrie, 4 Batoniensis Somery f f[ ítem de littera thesaurarii et eius negocio. L marcas etc. ad ipsum thesaurarium ante Britannia et regem Alemannie.5 íf De castris committendis vicecomitibus.6 í[ Balliuis ciuitatis Londonie. cancellario. thesaurario. Leyburne. Aguilun. in negociis specialibus regis quod fidem etc. et consilium et auxilium etc. ex parte regis.7 Rex dilectis et fidelibus suis * balliuis et ci * maiori et ciuibus suis Eboraci salutem. Quia super arduissimis negociis nos et * regnum nostrum * 1 ? Rex Ricardas, an opponent of the wild schemes of disinheritance. He did not leave for Germany until 4 August 1268. * The use of this word is very curious. The choice of the nearer towns is probably due to considerations of haste, but they are by no means so very near. The list of towns shows traces of a different or at least a more hurried hand, and may have been written at a later time than the rest of the document; cf. p. 583, n. 4. 3 One of the justices appointed to hear pleas of lands given beyond Trent (Cal. of Pat. Rolls, 1266-72, p. 281). 4 The faint indications of a ' P ' and ' ss ' would suggest Ph. Basset. 6 This refers to the grant of a wardship of the value of £50 or £60 made by the king to Master Thomas de Wymundham, the treasurer, on 22 November 1267-8, which he was now to have prior to the fulfilment of similar grants made to John of Brittany and Richard, earl of Cornwall. Cf. Cal. of Pat. Rolls, 1266-72, pp. 168, 218, 250. ' About this time the castle of Carlisle was committed to William de Acre, sheriff of Cumberland, and the castle of Colchester to Richard de Herlawe, sheriff of Essex and Hertford (Cal. of Pat. Rolls, 1266-72, p. 218). 7 A large cross has been made in the margin against this item.


IV 585

statum et communitatem regni nostri * et vos * tangentibus. et ipiesertim in * instanti * concilio * Londonie * per legatum Londonie conuocato in instanti quindena Pasche. vobiscum ac aliis fidelibus dicti regni nostri quos ad hoc fecimus conuocari [et sine quibus negocia ipsa nequiunt expediri] tractatum et colloquium habere volumus speciale, vobis mandamus in fide, homagio. et dileccione quibus nobis tenemini. firmiter iniungentes. quod statim visis litteris istis. omnibus negociis pretermissis. ad nos sub omni festinancia vsque Westmonasterium * veniatis * dictum maiorem cum balliuis et sex probioribus * dicioribus * discrecioribus. et potencioribus * ciuitatis predicte [hominibus] * hominibus . . . cum litteris vestris patentibus sigillo communitatis vestre signatis. sub forma [quam vobis mittimus] presentibus interclusa venire faciatis. Ita quod sint ibidem in instanti quindena Pasche ad vltimum. ad faciendum ibidem super premissis quod de communi consilio regni nostri duxerimus prouidendum. Et hoc * sicut nos * nullo modo omittatis. T. fEbor' JLinc' fNorht' tStanf fNorwic' •j-Cant' fLenn' fOxon' •j-Wigorn' fGlouc' fSalop' JHereford'

tBrist' fWinton' fSutht' fCantuar' fCycestr' tRoff' JBathon' JCouen' et Lich' J 1 fExon' fEly •j-Sci. Edm'

fComes Warenne JR. de Clifford fR. de Mortimer tR. Waleraund fW. de Valencia

fAlanus la Zuche f J. de Chishulle

fGernem' fG-ippewic' fDunwic'

die * iouis * mercurii ante xvam sint apud Westmonasterium.

[DORSE] Omnibus Christi fidelibus ad quos presentes littere peruenerint. maior [vel balliui] et tota communitas ciuitatis Eboraci salutem in domino. Pro negociis dominum nostrum H. regem Anglie illustrem et regnum * suum * [et communitatem] Anglie et nos in concilio * Londonie * per legatum in instanti quindena Pasche Londonie conuocato tangentibus talem maiorem nostrum et balliuos et conciues [vel conburgenses] nostros ibidem duximus destinandos * rogantes quatinus eis quibus * [vt eis] in hiis que in concilio vel occasione eius concilii super predictis negociis ex parte nostra [duxerint] exponenda. adhibeatur plena fides. Et nos quicquid ipsi in premissis nomine nostro * de consilio et precepto domini regis predicti* fecerint ratum habebimus et acceptum. In cuius etc. Dát. etc. 1 The J before ' Couen.' and after ' Lich.' denotes the issue of two writs, one to each borough.

IV 586

NOTES Page 580

This meeting probably took place in connexion with a proposal to levy atallage (Cal. Close Rolls, 1264-1268, pp. 534ff.). 581, ns.3,5 For anteread Eng. Hist. Rev. 582, 1.4 It is curious that, certainly after 1327 and throughout the fourteenth century, it was noto writs of summons to contain the plena potestas (or sufficiens potestas) phrase, for it is frequently omitted (C.219: Writs and Returns of M.P.s.).


v THE EARLY RECORDS OF THE ENGLISH PARLIAMENTS The English parliaments of Edward I THE purpose of these articles is twofold. They are an endeavour to explain the origin of the so-called ' exchequer series ' of ' parliament rolls ' and their relation to other surviving documents and also to indicate the extent of the material for the study of the parliaments of the first two Edwards. But before this can be attempted we must explain what we understand by parliament. In this place, however, we do not propose to examine parliamentary origins, but to ask what parliament meant to Englishmen living between 1272 and 1327. And in asking this question we are not greatly concerned with the notions of modern writers who seem to us to be often quite uncertain of their own criteria, nor even with the notions of contemporary chroniclers who rarely attempt to give the terms they use a technical meaning. Our concern is primarily with litigants and suitors and clerks, with the notions of those who had occasion to be precise and to have a care for technicalities. Fragmentary as the parliamentary rolls may be, much as may have been lost, the parliaments of these years have yet left behind them a formidable mass of documents. To begin with, there are all the writs connected with parliament : writs summoning litigants and other persons for various purposes to parliament, or bringing there some legal or administrative question, or requiring returns or documents, or prohibiting something or other being done in time of parliament. Then there are the writs, which are ' parliamentary writs ' in the common understanding of the term, to summon clergy, barons, counsellors, knights, burgesses, and so on to a consultation or to give consent or whatever the phrase may happen to be. Since a great deal of business was transacted in time of parliament and since a parliament lasted not infrequently for a considerable time and was attended by a great number of people, it is

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The English Parliaments

obvious that an immense number of writs of all kinds must have been written. But we know that very many can never have been entered upon any roll, at least no roll that has survived or that we have any right to believe existed : this we know because a number of original writs exist for which there is no corresponding enrolment where we might expect to find it.1 We observe, further, that even when writs are enrolled, there are signs now and again that the enrolments are not complete.2 Clearly, no very great importance could have been attached to the enrolment of such writs. The writ was not the only kind of document confected in anticipation of a meeting of parliament : agenda had to be prepared, and some specimens of these agenda have survived. Petitions had to be written in large numbers (at least this is true for our period) shortly before or during the time of parliament. And when parliament was in progress, memoranda had to be made of decisions taken and business done ; later these memoranda had to be translated into instruments of various kinds, which, however, only occasionally use the word ' parliament ' and only occasionally are of assistance in reconstructing the history of parliament. Now it is quite obvious that if the parties to a suit in any of the king's courts are adjourned to parliament, parliament must have a perfectly precise and clear meaning. Similarly, if homage has to be rendered in parliament, or if a man is permitted to have the replevin of certain lands until the next parliament, parliament must mean a meeting of a definite kind, at a definite time, in a definite place. When the bishop of Winchester proposes to the bishop of Bath and Wells (who happens to be also chancellor) that nothing shall be decided as to the ownership of the goods of a suicide priest until the next parliament where they can be fully informed concerning the law and custom governing the matter ; s or again when the prior of Christ Church has failed to obtain the writs he seeks and a chancery clerk * advises him that his best chance of succeeding is to sue by petition before the king and his council in the next parliament ; 6 then we may be sure that bishops and prior and chancery clerk are all concerned with a quite clearly defined method of procedure. Perhaps still more convincing is the definite assertion of parliamentary privilege. It is already settled law by 1290—how much earlier we cannot say— 1

See below, p. 135, n. 6 ; p. 137, n. 3. E.g. Parí. Writs, I. 140 ; II. ii. 19, 81, 120, 215, 216. 8 Beg. lohannis de Pontissara (Cant, and York Soc.), pp. 298-9 : this is in January 1285. (N.B.— The modern year-date is used throughout these articles.) 4 This is William de Hamelton, later chancellor. He had recently been acting for the chancellor during his absence abroad. 5 Hist. MSS. Comm., Reports on Various Collections, i. 257 : this is in November 1289. 2

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that a member of the king's council or a clerk employed in parliament is protected and cannot be proceeded against by way of distraint or attachment in the time of parliament. Two cases of this year make the law quite plain. Thomas of Somerton and Alice his wife had obtained judgment against master William of Corbridge and Thomas of Corbridge, and the sheriffs of London had been ordered to proceed to execution. The sheriffs accordingly distrained on certain goods and chattels belonging to master William and were immediately served with an order from the king's council requiring them to release the distraint eo quod predictus Magister Willelmus est clericus domini regis in parlenmento suo quern dictum consilium non permittit distringi nee attachiari durante parleamentoï In the second case, the master of the Temple sought to recover ten years' arrears of an annual rent of thirty shillings due from the bishop of St. David's in respect of a certain house in London, but there was nothing to distrain upon except in time of parliament. He therefore presented a petition in parliament asking leave to distrain while parliament was in session, but the king thought it improper that those of his council should be distrained in time of parliament and left the petitioner with such remedy as the common law could provide.' Moreover, there seems to be a special peace during the king's parliament ; and those coming to parliament and departing from it appear to be under a special protection. Men must not come armed to parliament. To this rule of Edward I's his son time after time appeals, and seeks to enforce it.3 We know that Edward I did enforce it, for certain of the earl of Cornwall's household were murdered in daylight in the streets of London when coming to Westminster, unarmed and under the king's protection, for the Hilary parliament of 1292.* As a corollary of this rule, any breach of the peace in the place of parliament would be particularly heinous, and the notion of a special sanctity, greater even than that attaching to the verge and the king's presence, does seem to emerge now and again. Obviously it is difficult to disentangle these sanctities, but we may give a few instances where we may perhaps discern the idea of the peculiar sanctity of parliament. As the earl of Cornwall crosses Westminster Hall to go to the council chamber during the Hilary parliament of 1290, he is served with a citation to appear before the archbishop of Canterbury. The prior of Holy Trinity, London, who has the temerity to do this, as well as Bogo de Clare, on whose 1

Coram Rege Roll, no. 124 (Trin. 1290), m. 540!. Rot. Pari. 'i. 61 b. In the first line dare possit seems to be a copyist's mistake for distriagerc possit : in the original entry (Exchequer Pari. Roll, no. 2, m. 7) the words are interlined. 3 Parí. Writs, II. ii. 23, 54, 67 ; Foedera, ii. 232 ; Statutes of tie Realm, i. 170. 4 Cal. Pat. Rolls (1281-92), pp. 489, 517. See below, p. 145. 2

V 132


behalf he is acting, are at once prosecuted jointly by the king, the steward and the marshal, the earl of Cornwall, and the abbot of Westminster. The last named is joined because he is exempt from the jurisdiction of the archbishop, and Westminster Hall lies within his peculiar. The king prosecutes doubtless because there has been a breach of his peace ; and the earl is the injured party. The steward and the marshal take part perhaps because they are in some special sense the guardians of the law, especially in parliament ; since they do not try the case, their intervention can hardly be founded on the fact that the offence was committed within the verge.1 Says the prosecution, anyone of the king's realm and in his peace may come here 2 lawfully and without hindrance and attend to his affairs and here no citations nor summonses may be served. The accused plead ignorance of this privilege and throw themselves on the king's mercy but are fined.8 An amusing commentary on this case is afforded by an action before the king's bench in the subsequent Trinity term. From this we learn that one John le Waleys had endeavoured to serve a citation from the archbishop of Canterbury upon Bogo de Clare durante parliamento infra precinctum virge Regis, the occasion being apparently the Easter parliament of 1290. Bogo—strong perhaps in his dearly-bought knowledge that citations were illegal at that time and place—bade Henry of Anesley make John le Waleys eat the parchment, and eat it John did, or so he alleged ; however, he failed to appear to prosecute and the king failed to obtain a conviction either against Henry or against Bogo.4 Perhaps also where one who was with the king in his parliament at Westminster stresses this point when complaining of an assault upon his servant during his absence, we have another reference to the special protection which all those attending parliament enjoyed.5 We would emphasise the point that the parliament which is playing the important part it obviously does in law and administration, the parliament which is invested with a special sanctity so high that the ordinary processes of law cease to be of avail and become indeed an offence, the parliament which invests with some part at least of its sanctity the persons who come to it, this 1 This incident seems to have escaped the notice of Mr. L. W. Vernon Harcourt in his account of the stewardship of Edmund earl of Lancaster and his discussion of the steward's functions at this period (Hú Grace the Steward and Trial of Peers, pp. 138 ff.). It has some bearing upon the statements in the Modus Tenendi Parliamentum and the fourteenth-century tract on the stewardship. 2 It is not quite clear whether parliament or Westminster Hall is meant where the record reads ubi quiliíet de regno et in pace Domini Regif etc. * Rot. Parí. i. 17. * Coram Rege Roll, no. 124 (Trin. 1290), m. 68d. 1 Cal. Pat. Rolls (1292-1301), p. 163. Mention may also be made of a case where blows were struck in the king's parliament at Berwick in 1296 (Cal. Close Rolls, 1288-96, pp. 488 f.), and a case of assault during a parliament at Kilkenny in 1302 (Cal. Justiciary Rolls, i. 453 f.).

of Edward I

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cannot be a vague, uncertain gathering, vox et praeterea nihil?- but something fixed, determined, absolute, which all men may know and respect. Is then this parliament the meeting to which the ' estates ' are summoned, where legislation is considered, and where taxes are granted ? If this question is asked, our answer must be that all these things may indeed happen in the one assembly, but that we should not necessarily expect knights and burgesses to be present at a parliament nor legislation considered nor taxes granted. We would, however, assert that parliaments are of one kind only and that, when we have stripped every non-essential away, the essence of them is the dispensing of justice by the king or by someone who in a very special sense represents the king ; these other things, these non-essentials of representation, legislation, and taxation may be added to this essence, but they may be and not infrequently are found in other meetings which are not parliaments. To demonstrate at once adequately and clearly the facts of Edward I's parliaments it would be well to print for each a collection of writs, petitions, memoranda, pleas, statutes, instructions for collecting taxes, and so forth. We have to content ourselves with the list appended to this paper and with a brief commentary upon it. We have set down, with sufficient references to the evidence, a table of the parliaments from 1275 to 1307. We have not indeed been able in all cases to find some definite act which proves beyond doubt that a parliament was held ; at times we have had to rely upon the evidence of a writ which is no more than evidence of an intention to hold a parliament, and we must confess that we are still left with certain puzzles which, so far, we have been unable to resolve to our entire satisfaction. To these difficulties, which we have met as well as we are at present able, we will return. But now we would ask that the list be taken at its face value and accepted provisionally as a true statement of the parliaments held in the reign of Edward I. s It will be at once perceived that there is a striking difference between the early and later periods, separated by a long interval in the years 1286, 1287, 1288, and 1289. In the early period the normal practice is quite evidently to hold two parliaments annually, after Easter and after Michaelmas. In one year, 1278, three parliaments are held, but this is quite an exception to the rule. In another year, 1283, there is one parliament only, for Edward is engaged in the Welsh war and the Easter parliament has to be dropped : in other years, too, intended parliaments may not have been held. But after 1289 no rule of any sort is observed : three parliaments may be held in one year, or there may be long intervals with no parliament whatsoever. Three parliaments 1

Pollard, Evolution of Parliament) p. 46.

V 134


a year are, however, very exceptional, and the still current belief, to be found in text-books and studies of high repute, that to hold three or four parliaments annually was the rule is without better warrant than that of the compilers of the Lords' Report on the Dignity of a Peer.1 Indeed there is much to lead us to suppose that to hold two parliaments a year was the definite rule, and that it was only the stress of war or of foreign affairs that compelled Edward I to depart from it. Edward's own letter to the pope in June 12752 suggests that the scheme for two regular parliaments a year had already taken shape : his promise to endeavour to arrange a parliament before Michaelmas implies that one was not to be expected until after that date, as doubtless the papal agents in England knew. Edward himself speaks of an Easter parliament as customary, which seems to be rather a forecast of the future than a correct statement of the order observed under Henry III. And when the king was too busy to attend to the affairs of Nicholas of Weston at the Easter parliament of 1279, he adjourned him ' to the following parliament, to wit, three weeks after Michaelmas following.' 3 In the same year a plea of Llewelyn prince of Wales was adjourned from the Michaelmas parliament ad proximum parleamentum quod erit apud Weiïmonasterium a die Pasche proximo futuro in ires septimanas.* The legislation of the year 1285 clearly contemplated regular sessions of parliament. One statute promulgated at Westminster in the Easter parliament provided that if the chancery had before it a difficult question of the form of writ to be used in consimili casu and the clerks could not agree on a decision, the parties were to be adjourned to the next parliament in order that the matter might be settled by those learned in the law.5 At the Michaelmas parliament of the same year, held at Winchester, it was provided that the justices of assize should enforce the statutes there made and should report regularly to the king at each parliament.6 As it fell out, the departure of the king next year and the suspension of parliaments rendered compliance with this provision impracticable ; perhaps also the justices were slack or found their task 1 Report, i. 169 ff. ; cf. p. 184. Stubbs boggled at four parliaments a year but accepted three : Const. Hist. ii. 262 (1875 edit.). Professor Pollard, apparently following Stubbs, thinks 'there is little doubt that this was the normal practice,' Evolution of Parliament, pp. 48-9. L. Ehrlich, Proceedings against the Crown (in ' Oxford Social and Legal Studies,' vol. vi, pp. 91 f.), is the first modern writer we know definitely to break with this tradition ; his own provisional list, however, is not always based on first-hand authorities and is defective. 2 Pari. Writs, i. 381 ; Cal. Close Rolls (1272-79), pp. 197 f. ; see below, p. 136. 3 Cal. Fine Rolls (1272-1307), p. 120. * P.R.O., Ancient Correspondence, xiii. 121. 6 Statutes of the Realm, i. 83 f. 6 Ibid. p. 98. The statutes are entered in French on the statute roll ; the recital in the commissions on the patent roll of 15 Edward I elucidates this version. See following note.

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impossible. Accordingly, in 1287, in place of the justices, commissioners were appointed to execute the articles of the statute until the king's return ; in their commission there is no mention of parliament, although report was to be made to the king or his lieutenant.1 We are not concerned, however, with the execution of these statutes but with the obvious implication they contain that a regular succession of parliaments was anticipated. Then, in the Mirror of Justices we read that instead of parliaments being held twice a year and at London, they are now but rarely held and at the will of the king for obtaining aids or gathering up treasure.2 If, as is supposed, the Mirror was written about the year 1290, this comment had obvious force, for since May 1286 the king had been out of the country and his lieutenant had, so far as we know with certainty, held but a single parliament before the king's return in August 1289. Again, when Pierre de Langtoft is describing the treaty of Conway, he asserts that Llewelyn was required to come to the king's parliament twice a year.3 We know of no such obligation in any authentic source, but this makes Pierre a better witness to the strength of the tradition of two annual parliaments. It will make for clearness if we run briefly over the evidence for a few of Edward Fs early parliaments before explaining how this rule of annual Easter and Michaelmas parliaments came to be set aside. Edward returned from his crusade in August 1274 and his first 'general' parliament4 was summoned for the quinzaine of the Purification (16 February 1275), but prorogued until the morrow of the close of Easter (22 April). We have a writ summoning the archbishop of Canterbury to attend, as well as writs to the sheriffs summoning four knights from each county and six or four men from every town ; the former is enrolled on the close roll, but no other similar writ is there to be found ; 5 fragments of the writs to the sheriffs and of their returns have been recovered in recent years.6 On the close and Ryley, Plácito Parliamentaria, pp. 451 ff. ; Cal. Pat. Rolls (1281-92), pp. 264 f. Mirror of Justices (Seiden Soc.), p. 155. 3 Chronicle of Pierre de Langtoft (Rolls Series), ii. 172 ; and so, of course, in Robert of Brunne's English version, ed. Hearne, ii. 237. Llewelyn's brothers, David and Owen, under their engagement with Edward I in 1277, were required to come to the king's parliaments in England like other earls and barons, but no specific number is mentioned : Foedera, i. 544. 4 The parliament is called ' general ' in the writs of summons, in the preamble to the First Statute of Westminster, and in the charters of the earl of Pembroke and others. We are not, however, to suppose that any parliament preceded it. Wykes, for example, uses the words ' tanquam in primo parliamento suo ' (Annales Monastici, iv. 263). The adjective ' general ' probably refers to the summoning of representatives of all the communities of the land ; for its use under Henry III, see Trans. Royal Hist. Soc. (4th Series), v. 58. 6 Pari. Writs, i. i ; Cal. Close Rolls (1272-79), p. 229. 6 Eng. Hist. Rev. xxv. 231 f. ; Select Charters (gth edit.), p. 441. 1 2

V 136


fine rolls we have, however, other writs issued in anticipation of the parliament ; one, addressed to the escheator beyond Trent on 22 October 1274, permits Gilbert of Middleton to hold until the next parliament certain lands which had been seized into the king's hands ; 1 another, addressed to the mayor and sheriffs of London on 25" November, regulates the price of wine until the king's arrival at the next parliament in London ; 2 two others, dated 15 March 1275", are addressed to the sub-escheator in Sussex and the keeper of the honour of Arundel and permit the prior of Bruton to hold in peace the manor of Runcton, with the receipts therefrom, from the time of its seizure into the king's hand until the parliament on the quinzaine of Easter next, to which day the prior has been adjourned.3 Of the recorded business of this parliament the principal item is the series of ' establishments ' known to us as the Statute of Westminster the First.4 An entry on the coram rege roll for Michaelmas term 1274 tells us that the mayor and burgesses of Sandwich appeared in the parliament to hear the judgment passed upon them for their rebellious conduct in the previous year.6 On the chancery rolls, besides the well-known charters of the earl of Pembroke and other barons dated ' in the lord king's general parliament ' on St. Dunstan's day (19 May), referring to the customs granted on wool, wool-fells, and hides exported from England and Wales and granting a similar duty on exports from Ireland,6 we have two writs of 26 May referring to the appointment at the parliament of John fitzjohn and master Geoffrey de Haspal as auditors of the disputes between the citizens of York on the one hand and the abbot of St. Mary's, York, and the dean and chapter of St. Peter's, York, on the other.7 Another document refers to business left over from the parliament. This is the letter of apology from Edward to the pope dated 19 June : it explains that the question of the arrears of the yearly tribute has been passed over owing to the pressure of business and the illness of the king which brought the parliament to a hurried close.8 The letter, as we have already said above, goes on to hold out the hope that the question will be considered at a parliament to be called this side of Michaelmas ; but already a writ had issued on 15 May to the justices of market pleas ordering them to stay their hands and to refrain from exercising their a Cal. Fine Rolls (1272-1307), p. 32. Cal. Close Rolls (1272-79), p. 137. 4 Cal. Fine Rolls (1272-1307), p. 43. Statutes of the Realm, i. 26 ff. 5 Coram Rege Roll, no. 16, m. 551! ; Placitorum Abbreviatio, p. 264!). 6 Pari. Writs, i. 2 ; Cal. Fine Rolls (1272-1307), p. 60. The original draft still survives —Chanc. Misc. 10/13/15 : it has not, we believe, been previously identified. 7 8 Cal. Pat. Rolls (1272-81), p. 120. Par!. Writs, i. 381 ; see above, p. 134, n. 2. 1 3

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office in the liberty of Ely until the parliament to be held at Westminster on the quinzaine of Michaelmas next, so that the bishop may not be prejudiced.1 Other writs dated 10 July, addressed to the escheator beyond Trent, order various properties seized into the king's hand to be restored until the same parliament.2 Of writs summoning clergy, barons, or counsellors to this parliament we possess neither original nor enrolment. The original writ, dated i September, to the sheriff of Kent requiring him to send two knights has survived ; 3 and an entry in archbishop Walter Giffard's register records the appointment of his official as his proctor in the parliament.4 Of the business transacted at this parliament we know but little. 'An entry on the close roll many years later informs us that it was at the parliament held on the quinzaine of Michaelmas in the third year of Edward's reign that an ordinance was passed concerning the usury of Jews, doubtless the Statutes of Jewry printed in the Statutes of the Realm as of uncertain date.5 And at this parliament, it is evident, a fifteenth was granted by the laity.6 It would be possible to examine in like manner the evidence surviving to greater or less extent for each of the parliaments of this period. It must suffice, however, to say something here of the parliaments of 1278 and of the years 1282 to 1284. A parliament was held at Westminster after Easter 1278, our principal piece of evidence being an entry on the patent roll recording how Roger Delisle in that parliament showed before the king and council that the king had been beguiled into receiving the homage of William of Sparsholt for the manor of West Hendred.7 This incident appears to be the outcome of a petition printed in the Rotuli Parliamentorum from Sir Matthew Hale's transcripts and ascribed to 6 Edward I,8 and obviously serves to confirm that date. Several of the other petitions included in the same bundle when the transcript was made were probably presented at the same parliament.9 2 2 leid. p. 200. Cal. Close Rolls (1272-79), p. 167. P.R.O. Pari. Writs I/I (ii) ; printed Stubbs, Const. Hist. ii. 235. 4 Register of Archbishop W. Gi/ard (Surtees Soc.), p. 305. 5 Statutesofthe Realm,i. 221 ; Cal.Close tfotó (1288-96)^. 109. This ordinance may have been entered on some earlier membrane now lost which preceded what is now the first membrane of the earliest statute roll ; cf. Maxwell-Lyte, The Great Seal, p. 373 n. 6 Pari. Writs, i. 3 f. ; Cal. Close Rolls (1272-79), pp. 250 f. ; Cal. Pat. Rolls (1272-81), p. 108. 7 Cal. Pat. Rolls (1272-81), p. 275 ; see 7.C.H., Berks, iv. 304. The date ascribed to the parliament presents a difficulty ; the entry on the patent roll speaks of the quinzaine of Easter, but Edward seems not to have been within reach of Westminster until nearly a fortnight later (cf. Gough, Itinerary of Edward ƒ, i. 83). 8 Rot. Parí. i. 8, no. 34 : ' maner de Raned ' is evidently a mistake of either transcriber or printer. 9 On this bundle we shall have more to say in a kter paper. 1

3

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We have traced also a number of adjournments of the usual kind to that parliament.1 Another parliament was held according to rule in the Michaelmas term at Westminster. Besides writs respiting until that parliament debts due by Henry of Shobury to Jews,2 and adjourning certain barons of Dover, who are prepared to purge their innocence before the king, and summoning the warden of the Cinque Ports,3 we have an entry recording the homage rendered in parliament by king Alexander of Scotland to king Edward,4 and also a further entry relating to the dispute between king Alexander and the bishop of Durham, which was first heard before king Edward and commissioners of oyer and terminer in parliament, and afterwards before the king and his council.5 Besides these two parliaments at Westminster at the regular terms, another was intercalated. This parliament was sitting at Gloucester after St. Peter's Chains (i August), but may perhaps have been begun as early as the octave or quinzaine of St. John the Baptist.6 We know of no writs adjourning parties to this parliament ; but an entry in some memoranda clearly belonging to this year suggests that at least one such writ was issued,7 and in an action before the king's bench in 1285 one of the parties refers to a prior action in the parliament at Gloucester in the sixth year.8 It was at this parliament that the statutes of Gloucester 9 were promulgated ; neither the preamble nor the final clause of 1

L.T.R. Mem. Roll, 6-7 Edw. I (E. 368/52), m. 3d, debt due from barons of Sandwich; Coram Rege Roll, no. 33, m. 6, mayor, bailiffs and citizens of York to hear judgment ; ibid. no. 37, m. 22d, Simon and Henry de Ordeston to appear ; Cal. Close Rolls (1272-79), p. 450, replevin of lands etc. to Alexander de Annou. 2 Cal. Close Rolls (1272-79), p. 465. 3 Ibid. p. 470. §e&ibid. pp. 462, 466, for other adjournments apparently to the same parliament. * Foedera, \. 563 ; Pari. Writs, i. 7 ; Cal. Close Rolls (1272-79), p. 505. 5 Fœdera, i. 565 ; Cal. Pat. Rolls (1272-81), p. 339. 6 The statutes are dated Sunday after St. Peter's Chains (7 August). According to Rishanger (Chronica, p. 93) parliament was held on the octave, and according to Hemingburgh (Ckronicon, ii. 5), on the quinzaine of St. John the Baptist. But if either of these dates is correct parliament must have opened in the absence of the king (cf. H. Gough, Itinerary of Edward I, i. 8 5), which we think unlikely ; see below, p. 143. It appears, however, that Thomas Bek, the keeper of the wardrobe, had been ordered by the king to be ' in festo beati Petri ad uincula ad parliamentum Glouernie,' although in the event he was detained by sickness and did not rejoin the court until 14 September at Rhuddlan : Chanc. Misc. 3/21. This suggests that parliament had been summoned for i August : but it is conceivable that the opening was delayed for a few days, as it had been, for example, in 1269, to await the king's arrival (Cal. Pat. Rolls (1266-72), p. 384), for Edward does not seem to have reached Gloucester until the sixth (Gough, op. cit. p. 86). 7 Chane., Pari, and Council Procs. i /6 : De mulieribus examinandis. Mittant mulieres aliquem ad parlamentum Gloucestrie et Rex in presencia iusticiariorum suorum faciat ibidem quod de iure fuerit faciendum. Veniat apud Gloucestriam etc. 8 Coram Rege Roll, no. 90 (Easter 1285), m. 34d : Dicit insuper quod alias in curia Regis anno VI Regis nunc in parliamento suo apud Gloucestriam seisina predict! Philippi adnichilata fuit. . . . 9 Statutes of the Realm, i. 45-50.

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the statutes contains, it is true, the word parliament, but there can be no doubt that the meeting to which the king called les plus descrez de sun règne aussi bien des greindres cum des meindres was this same parliament, and we find in a plea of 1283 a reference to a statutum domini regis in parliament ipsius domini regis apud Gloucestriam 1 which we may identify with chapter viii as it is printed in our statute book. Why an additional parliament should have been held in this year it is not easy to discover ; it may be that the statutes demanded more consideration than could be given to them at the Easter parliament, or that it was desired to obtain the assent of a fully representative meeting ; but this is mere speculation and does not explain why the business was not allowed to come before the Michaelmas parliament. The question we have to put regarding the period 1282 to 1284 is whether more than one parliament met in the whole of these three years. There is ample evidence of the intention to hold a parliament in the Easter term 1282. Already on 10 June 1281 the justiciar of Ireland had been required to certify the king at the next parliament after Easter regarding the security to be given by Hubert de Burgh for his good conduct.2 And a number of cases coming before the exchequer in the Michaelmas term are adjourned to this parliament,3 as well as a case in the king's bench where a day is given ad parleamentum domini régis a die Pasche in tres septimanas.* Again, on 4 February 1282 the mayor of London was authorised to collect until the next parliament after Easter tolls in aid of the repair of London Bridge, and the accounts for these works were to be audited and certified to the king before the parliament.5 Ten days later the bishop of London had met Edward at Bibury to discuss the case of Amauri de Montfort ; Edward told him that in the course of the next parliament the matter would be debated with the magnates, and Edward's words show that the parliament was to be at London.6 Edward, however, continued in the West. Amauri was duly released some three weeks after Easter, but the formalities took place in London ; 7 and there is no evidence that his case or any of the other matters that had been adjourned to the Easter parliament ever in fact came before it. On the whole, it seems unlikely that this parliament was actually held. Coram Rege Roll, no. 73 (Hilary 1283), m. 19 ; see also Rishanger and Hemingburgh, he. cit. Cal. Close Rolls (1279-88), p. 91 ; CaL Docs. Ireland, ii. 391 f. 3 P.R.O., K.R. Mem. Roll, 9-10 Edw. I (E. 159/55), m. 2 (3 cases), m. 3 (2 cases). 4 P.R.O., Coram Rege Roll, no. 64 (Mich. 1281), m. 57. 5 Cal. Pat. Rolls (1281-92), p. 10. 6 Epistolae lohannis Peckham, i. 298. Printed also in Foedera, i. 602 ; Wilkins, Concilia, ii. 70 f. Bibury is between Cirencester and Sherborne, where Edward was staying at this time. 7 Foedera, ¡.605. 1 2

V 140


In April 1282 a writ speaks of the parliament after Michaelmas next, when the prior of Rochester is to appear to hear the decision upon his claim to the fourth penny from the ferry at Rochester.1 And still on 8 September this parliament is appointed to John Roges in which to do homage for his lands.2 Since, however, Edward was in Wales throughout the Michaelmas term, again it appears highly improbable that this parliament can have met. We have at present found no trace of any intention to hold a parliament in the Easter term of 1283. For the Michaelmas parliament of that year, however, which was held at Shrewsbury and Acton Burnell, we have abundant evidence, not only writs and statutes, but also memoranda of the Responsiones ad petitiones apud Acton Burnel in parlamento post festum sancti Michaelis anno regni regis Edtvardi undécimo et quedam alia negocia ibidem expedita et precepto.* From Acton Burnell a writ issued on 24 October respiting until the parliament after Easter next the demand made upon the prior of Dunstable for certain amercements to which he made claim but which the exchequer disputed.4 In November the executors of Elena Percy were to give security to the king that they would satisfy him in the same parliament regarding the debts due from her.5 Again on 12 February 1284 a writ intimated that at this parliament the claim of St. Mary's, Rouen, to the manor of Ottery St. Mary would be decided.6 But it is unlikely, in view of Edward's absence in Wales, that either the Easter parliament or the Michaelmas parliament 1284 (for which also we have found a writ) 7 was ever held. It seems highly probable that, though the various departments of government had throughout acted on the assumption that Easter and Michaelmas parliaments would meet regularly, only once during these years, at Michaelmas 1283, could Edward be brought actually to hold a parliament, and that on the borders of Wales.8 On 13 May 1286 Edward left for France not to return until 12 August Cal. Close Rolls (1279-88), p. 153. Cal. Fine Rolls (1272-1307), p. 168 ; cf. Cal. Close Rolls (1279-88), p. 167, writs, apparently of the same date, to permit Joan widow of Geoffrey Gascelin to hold certain lands until the next parliament. 3 Chane. Pari, and Council Procs. 2/2: of this we shall have more to say later. For the writs, etc., see references in list below. Note that one version of the statutes begins : ceo sunt les estatutz fez a Salopsebury al parlement prochein apres k feste seint Michel kn del Regne le Rey Eadward fiz le Rey Henry unzime (Statutes of the Realm, i. 53 n.). 4 Annales Monastics (Dunstable), iii. 301. 5 Chancery Warrants, series i, no. 281 ; see Calendar, p. 23. 6 Cal. Fine Rolls (1272-1307), p. 199. 7 Cal. Close Rolls (1279-88), p. 274: Roger le Tailour to hold an annual rent in teaancia until next parliament after Michaelmas. 8 The Worcester annalist indeed asserts that this parliament was held ' at the instance of Robert Burnel,' the chancellor : Asnales Monastici, ¡v. 487. 1 a

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1289. The king's lieutenant, Edmund earl of Cornwall, carried on the administration, but apparently with strictly limited powers. Upon a petition to the earl and council we find this inscription : Comes mandabit super isto negocio et alus domino Régi.1 Other business the lieutenant directed should be left in suspense until the king's return.2 From other sources too we have evidence of the reluctance of the government in England—tied perhaps by their instructions—to proceed to a final determination in certain matters during the king's absence. Thus an action evoked from Ireland to the king's bench in the Michaelmas term 1287 was held in suspense until the king's return from Gascony and then was appointed to be heard in the Easter parliament of 12 90.' Again an action was heard before the king's lieutenant in England and Ralf of Hengham, but judgment was given in parliament in the presence of the king.4 In another case in which the lieutenant and the council did venture to come to a decision there was an appeal in parliament on the king's return.6 The earl, with the other members of the council in England, appears, however, to have sat regularly at Westminster in the regular law-terms during the king's absence,9 and a number of matters which might normally have come before parliament were dealt with. Thus we find such cases as that of a chaplain guilty of larceny who had taken sanctuary and offered to abjure the realm,7 and that of another chaplain who had brought papal bulls into the 1 Anc. Pet. no. 12998 : this petition appears to belong to this period ; it is from William de Munchensi of Edwardstone, then in prison. Although he purged himself in February 1286 (Cal. Close Roils, 1279-88, p. 409), he seems to have been still in prison in 1290 (Cal. Close Rolls, 1288-96, p. 68). a

P- 133

Cal. Fine Rolls (1272-1307), p. 228 ; Cal. Close Rolls (1279-88), p. 461 ; Ibid. (1288-96),

Cole, Documents, p. 68.

* Rot. Parí. i. 326, no. 189.

&

Ibid. p. 38b, no. 36.

* Councils held by Edmund earl of Cornwall, 1286-1289. (The pkce of meeting is invariably Westminster.) Year.

Term.

1286 1287

Michaelmas Hilary Easter Michaelmas Hilary Easter Michaelmas Easter Trinity

1288 1289

Reference.

C.C.R. (1279-88), 399 ; C.F.R. 229. C.C.R. (1279-88), 441. C.C.R. (1279-88), 446 ; C.P.R. (1281-92), 265. C.C.R. (1279-88), 458 ; C.F.R. 239. C.C.R. (1279-88), 497. C.F.R. 245. C.C.R. (1279-88), 517,* 519 (= Parí. Writs, i. 18), 547. [Parliament; see p. 142.] C.C.R. (1288-96), 12. * Note of council proceedings.

7

Cal. Close Rolls (1279-88), p. 399.

V 142


country to the king's prejudice.1 There is a dispute between the abbot of Hyde and the queen's men concerning the ownership of a mill and an acre of marsh.2 There are cases of disseisin 3 and of disputed succession.1 An heir is summoned to do fealty.6 Certain citizens of Norwich incriminated in the burning of the church of Holy Trinity are required to appear before the king's lieutenant and the council in the Easter term 1287.* In the same term the special commissioners appointed to enforce the statutes of Winchester are summoned to certify the king or his lieutenant concerning the breaches of the law.7 When armed conflicts between the magnates are feared, they are required to bring their disputes before the king's lieutenant on the quinzaine of Michaelmas 1288.® All, or nearly all, of these cases could be paralleled by cases coming before some or other of Edward's parliaments. Now it is to be remarked that from time to time writs are to be found during this period adjourning cases before parliament. There is, for example, a writ of May 1286, just before the king's departure, granting replevin until the next parliament of certain lands seized into the king's hands,9 as though a parliament might be anticipated in the following Michaelmas term. Again on 18 May 1287 John of Metingham and Thomas of Belhus are required to return against the next parliament at Michaelmas their inquisition regarding the obstruction of the waterway between Huntingdon and St. Ivés.10 And on 5 March 1289 a writ authorises the delivery of a wood to the prior of Christ Church, Twynham, to be held until the next parliament at Easter.11 That the last of these parliaments was held we have the evidence of an entry on the coram rege roll of the following Michaelmas term,12 but, in the absence of direct evidence to prove that parliaments were held in Edward's absence during Edmund's lieutenancy, we must regard the Easter parliament of 1289 as quite exceptional. All the writs were probably issued in the expectation that Edward would be heme again to hold a parliament ;13 and it is possible that only the 2 Cal. Close Rolls (1279-88), p. 517. Ibid. (1279-88), p. 441. Ibid. p. 458 ; Cal. Close Rolls (1288-96), p. 12. 4 Cal. Close Rolls (1279-88), p. 497 ; Cal. Fine Rolls (1272-1305), p. 247 ; Rot. Pari. i. 38b. 6 6 Cal. Fine Rolls (1272-1307), p. 239. Cal. Close Rolls (1279-88), p. 446. 7 Cal. Pat. Rolls (1281-92), p. 265. 8 Cal. Cíese Rolls (1279-88), p. 547 ; Pari. Writs, i. 18. 9 10 Cal. Close Rolls (1279-88), p. 393. Col. Pat. Rolls (1281-92), p. 270. II Cal. Close Rolls (1288-96), p. 6. 12 Coram Rege Rol], no. 121 (Mich. 1289), m. 41 : Cum in parliamento post Pascha anno regni Regis nunc séptimo décimo coram comité Cornubie et consilio dcmini régis apud Westmonasterium. . . . 13 Writs requiring an appearance before the king or the king's lieutenant disclose the uncertainty of the chancery as to the time of the king's return : e.g. Cal. Pat. Rolls (1281-92), p. 265 ; Cal. Fine Rolls (1272-1307), p. 239. I

3

of Edward I

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necessity of dealing with some part of an accumulation of nearly three years of parliamentary business brought Edward to permit his lieutenant to hold a parliament. The normal attitude is expressed when in 1287 the archbishop of York is adjourned for an alleged forest offence ad proximum parliamentum post proximum adventum domini regis in Anglia coram ipso domino rege,1 How essential to parliament the king's presence was considered to be, at least in normal circumstances, is plainly shown when in April 1294, in a writ addressed to the treasurer of Ireland and other Irish officials, Edward explains that he is not going to cross the seas at present and therefore his Easter parliament will be held as previously arranged.2 This is, of course, merely stating explicitly what -was implied in Edward's letter to the pope in 1275, that without the king there could be no parliament. It seems only to have been towards the end of his reign that Edward came to assent to the holding of a parliament on occasion by his son acting as his deputy,3 or the opening of parliament by commissioners.1 The compilation of the list of parliaments for the period 1290 to 1307 presents considerable difficulty, despite the assistance furnished by the parliament rolls. To begin with, it may be well to clear away an error into which we believe Professor Pollard to have fallen with regard to the parliaments of the year I29O. 5 He has convinced himself that there is ' a complete discrepancy between the " Rolls of Parliaments " and the so-called " Parliamentary Writs," ' and he concludes that ' the gatherings convoked by these so-called " parliamentary " writs were not parliaments and the meetings called parliaments in the rolls were not summoned by the writs to which the name has been given.' Exch., Treas. of Receipt, Forest Procs. no. 127, m. 14, cited in Harcourt, Hit Grace the Steward and Trial of Peers, p. 316. 2 Rot. Parí. i. 127 ; Coram Rege Roll, no. 141 (Trin. 1294), m. 36 ; Placitorum Abbreviatio, p. 234a. 3 The king being at Ghent, Edward his son, as lieutenant, held the Michaelmas parliament of 1297 in his place : Cal. Close Rolls (1296-1302), pp. 67, 128 ff., 132 ; Pari. Writs, i. 55 f. 4 The Lent parliament of 1305 actually commenced, so far at least as the ' delivery' of petitions was concerned, before the king's arrival in London: see Maitland, Memoranda de Parliament, pp. Ivi f. ; the present reference to the Privy Seal he cites is Chanc. Warrants, series i. no. 5274. The chancellor and treasurer were responsible for this preliminary business. The king also delayed coming to the autumn parliament of the same year. On 14 September he writes from Lambourne to the members of his council : ' Pur ce qe par aucunes resons nous ne purroms mie estre a Westmoustre as oytaves de ceste procheine feste de k Nativitate nostre dame au comencement de nostre parlement sicom [nous eusioms] nadgueres ordenez, si enveoms a vous honourable piere en dieu W. evesqe [de Cestre] nostre tresorer, vous prioms et mandoms qe vous le créez fiabîement endroit des choses qil [vous dirra] de par nous ' : Exch., Pari, and Council Proceedings, i /2o. At the parliament of Carlisle in 1307 the treasurer and the earl of Lincoln acted definitely as commissioners for the king : Vetus Codex, whence Ryley, Placita Parliamentaria, p. 320; Pari. Writs, i. 184 ; Rot. Parí. i. 189 ; Foedera, i. 1008. 8 Evolution of Parliament, pp. 47 ff. 1

V 144


Upon this thesis, which we are not able to accept, our list must for the moment be sufficient comment : later we hope to expound the true nature of the rolls of parliaments. But it behoves us to examine the chief illustration chosen by Professor Pollard, the lack, as he supposes, of correspondence between writs and rolls for 1290. Noting the three undoubted parliaments of Hilary, Easter, and Michaelmas, the business of which is recorded, to some extent at least, in the ' Rolls of Parliaments," he has laid emphasis upon a ' fourth assembly ' at which knights of the shire were present, which met on 15 July but whose existence is ignored in the rolls. But that there was a meeting on that date, separate and distinct from the Easter parliament, seems to be a complete misconception. This parliament began about 22 April ; x more than two months before that it had been known that it would last, at any rate, until 29 May,2 and, in fact, on that day in pleno parliament a grant was made for the marriage of the king's eldest daughter.3 Of what actually was done in parliament during June we have little knowledge, but the statute Quia Emptores was promulgated by the king in parliament suo apud Westmonasterium post Pascha anno regni sut xvüF videlicet in quindena Sancti lohannis Baptiste, that is to say, on 8 July 1290.* But parliamentary proceedings were not yet over, for a long plea between the king and the bishop of Winchester, begun in the Hilary parliament and continued in that of Easter, went on throughout June until Friday after the quinzaine of St. John the Baptist, that is 14 July.5 Now, a month before this, writs had been sent out to the sheriffs, commanding them to send two or three knights to Westminster on 15 July, and the purpose of their coming is to give counsel and consent to matters which the earls, barons, and other proceres of the realm had already discussed.6 It seems much more probable that the knights came to Westminster in tempore parliamentiy that the Easter parliament which had lasted so long went on a few hours longer, than that a quite distinct assembly met on 15 July. Nor can it be objected that so protracted a gathering is unlikely at this period. The Easter parliament of 1285 appears to have met not later than 8 April and to have continued until 24 June 7 and possibly beyond that date 8—longum et forte parliamentum, as a 2 Cal. Pat, Rolls (1281-92), p. 397. Ibid. p. 345. Rot. Par!, i. 25 ; Parí. Writs, i. 20. According to Cal. Pat. Rolls (1301-7), p. 76, the daywas r June. 4 Rot. Parí. i. 41 ; Trokelowe, Annale s (Rolls Series), p. 44. 6 Rot. Parí. i. 18-20. « Parí. Writs, i. 21. 7 We have not traced any definite statement in any official record except that the parliament was held after Easter. The assertion that it began on the quinzaine of Easter and lasted until the Nativity of St. John the Baptist comes from a chronicler : Afínales Monastici, iv. 304. 8 Cf. Cal. Pat. Rolls (1281-92), p. 178. 1 3

of Edward I

V 145

chronicler comments.1 Again, the parliament of Carlisle opened on 20 January 1307 ; 2 the knights did not depart until 19 March.3 Under Edward II a parliament might last even longer.4 In 1291 only one parliament was held, at Ashridge on the morrow of Epiphany.5 The meetings at Norham in May and June 1291, to which the name of parliament is given by some modern writers,6 were concerned with the question of the Scottish succession. In any case, these meetings do not seem to be admissible into the English series of parliaments : of the Scottish parliaments of Edward I we shall have something to say hereafter. A parliament was held in 1292, again on the morrow of Epiphany. That a second parliament was held after Easter in this year is very dubious, and we have not included it in our list. Of the intention to hold such a parliament there is ample evidence, the earliest writs issuing in July 1291.' But although parties were mainprised to be at the king's parliament at Westminster in a month of Easter,8 Edward had left Westminster within a few days of Easter and had left Stepney for the North within a fortnight.9 It would seem that it was to the Epiphany parliament that the treasurer of the earl of Cornwall was coming when he was murdered in the streets of London, although the first commission of oyer and terminer is dated 6 May.10 Annales Monastici (Dunstable), iii. 317. 3 Pari. Writs, i. 184. Ibid. p. 191. 4 In 1311 a parliament summoned for 8 August lasted, with an adjournment, until 18 December : Pari. Writs, ii. 44-67. In 1312 a parliament summoned for 20 August appears to have continued until 16 December : ibid. pp. 74 ff., 195. 5 Roí. Parí. i. 66. 6 See Bain, Cal. of Documents relating to Scotland, ii. in; Gough, Itinerary of Edward I, ii. 81 f. The meeting at Berwick on 3 August does not seem usually to be termed a parliament, although it is once so described by a contemporary writer. We can only suppose that it is by reckoning in these Scottish meetings that Professor Pollard is able to state that three parliaments were held in 1291 ; Evolution of Parliament, p. 49. We must, however, reserve our discussion of these meetings. 7 Cal. Fine Rolls (1272-1307), pp. 294 f. 1 2

8

Rot. Parí. i. 89, no. 35.

' Gough, Itinerary, ii. 92.

Cal. Pat. Rolls (1281-92), pp. 489, 517. Note that the assailants had taken sanctuary, where they had apparently remained some days, and had then abjured the realm and had reached Dover in safety ; all this had happened before the commission was issued. There was sufficient time, perhaps, for these events between Easter (6 April) and 6 May ; ¡f so, justice was rather unusually swift. But to our minds the convincing piece of evidence is an entry on Corara Rege Roll, no, 133 (Trin. 1292), m. 32, which reads: 'Preceptum fuit vicecomiti [of Essex] sub testimonio G. de Thornton' auctoritate cuiusdam peticionis misse de consilio domini Regis que residet in laicia peticionum de termino sancti Hillarii ultimo preteriti quod cum Ricardus de Ispania . . . venisset coram rege et consilio Regis in ultimo parliamento suo apud Westmonasterium et montrasset domino Régi quod. . . .' It seems clear that this petition had been presented in the Hilary term and that in June 1292 the latest parliament held was this Hilary parliament. Hilary is, of course, the octave of Epiphany. 10

V 146


In 1293 and 1294 1 there was a reversion to Easter and Michaelmas parliaments. Thereafter until the end of the reign there is the greatest irregularity in the incidence of parliaments. A parliament in August 1295 was followed by another at the end of November, the ' model ' parliament of whose proceedings, apart from the grant of a subsidy, we know exceedingly little.2 Apparently it was thought that the regular sessions of parliament might be resumed in 1296, for writs in the usual form adjourning parties to the parliament after Easter issued from the chancery 3 and the exchequer.4 Long before an Easter parliament could meet, Edward was on his way north for his Scottish campaign, and his next English parliament was not held until November 1296 at St. Edmund's. This latter parliament is remarkable for the fact that to it the Scottish magnates were required to come.5 The events of the next year are difficult to follow. It had apparently been intended to hold a parliament at Westminster in the Hilary term 1297 > 6 instead the parliament met at Salisbury late in February and broke up almost immediately.7 Writs issued adjourning parties to an Easter parliament,8 but this seems actually not to have met until the Trinity term.9 A Michaelmas parliament followed, held by the lord Edward as lieutenant. 1 The only evidence we have found for the parliament of Michaelmas 1294 is a note on the Coram Rege Roll, no. 142 (Mich. 1294), m. 3d : ' Dominus Rex in parliamento suo . . . concessit ob fauorem populi sui et propter instantem guerram Vasconie quod omnia breuia sua, tam de quo waranto quam de plácito terre, sine die remanerent ad presens quousque ipse siue heredes sui inde loqui voluerint.' We should note here that an entry on the L.T.R. and K.R. Memoranda Rolls for 1293-4 refers to a parliament at London ' post Natale Domini anno etc. xxij ' (£.368/65, m. 29 ; E. 159/67, m. 31). This we are convinced is an error ; but we hope to deal with this matter at greater length in a subsequent paper. 2 A petition from Hugh Kent, burgess of Galway, states that ' le Rey commaunda autre foiz a son grant parlement procheinement tenuz a Lundres ' that the privilege of using English law should be granted to all those Irish who asked for it (Ancient Petitions, no. 8670 : Sweetman, Calendar of Documents, Ireland, iii. 525, no. 1174). Since the grant to Hugh Kent is dated 25 March 1297 (Cal. Pat. Rolls (1292-1301), p. 245), it would seem that the great parliament at London must be that of November 1295. We have not yet traced any other indication of the business of this parliament. 3 Cal. Close Rolls (1288-96), p. 424. 4 L.T.R. Mem. Roll, 22 Edw. I (E. 368/65), m. 34. 5 Stevenson, Documents illustrative of History of Scotland, ii. 31 ; also printed by Gough, Itinerary, ii. 282-3. Note the payments to, the harper of Hugh of Cressingham (treasurer of Scotland) at St. Edmund's, and to the earl of Dunbar who had apparently been at St. Edmund's : Stevenson, op. cit. pp. 136-7. 6 Cal. Close Rolls (1288-96), p. 492 : writ of 30 September to keeper of Guernsey and Jersey. 7 Hemingburgh, Chron. ii. 121 : ' dissolutumque est concilium quoad hanc diem.' Besides the writs on the close roll printed in Pari. Writs, i. 51 ff., we have for this parliament an entry in the wardrobe account for 25 Edward I : ' Breuia transmisa [sic] pro parliamento Saresburie ' (Add. MS. no. 7965, f. 108). We do not think there need be any doubt that the intention had been to transact the usual routine parliamentary business on this occasion. 8 Cal. Close Rolls (1296-1302), pp. 4, 21, 24. 9 See Appendix.

of Edward I

V 147

A single parliament seems to have been held in 1298, at Easter. The following year three parliaments were summoned. The first met at Westminster at the beginning of Lent. The second, summoned for the quinzaine of Easter at Westminster, appears to have moved to Stepney, where an ordinance against false money was promulgated.1 A third summoned to meet at the New Temple on St. Luke's day must, if it met at all,2 have been brought to a hurried close, for within ten days Edward was again on his way north. A Lenten parliament was held at Westminster in 1300, and a plea entered on a parliament roll for 1302 seems to make it certain that the next parliament was the Hilary parliament of 1301 at Lincoln, and the next following, the midsummer parliament of 1302 at Westminster.3 We certainly have found no evidence that any other parliaments were held in this period ; writs appear to have issued for a Michaelmas parliament in 1300,* but since the composition of this proposed meeting is apparently identical with that of the Lincoln parliament for which writs issued on 26 September 1300, we may assume that the original intention was not carried out and that there was an adjournment. The midsummer parliament of 1302 was followed by a Michaelmas parliament at Westminster in the same year. Thereafter there was a long interval, the next parliament meeting at Westminster in Lent 1305. The statutes of Carlisle refer to what had been ordained and enacted in the parliament at Westminster on Sunday after the feast of St. Mathias, 1305, and go on to explain that these ordinances and statutes had not been published a parliamento •proximo -pretérito usque ad f resens parliamentum apud Karliolum ; 5 and it might be inferred from these words that no parliament had been held in the meantime. A parliament was, however, certainly held at Westminster Ín September and October 1305 \ and it would seem that another was held in May 1306. The Par!. Writs, i. 80. The writs on the Statute Roll contain no mention of parliament, although the first are dated at Stepney on 15 May 1299 : Statutes of the Realm, i. 131 ff. The writs addressed to various ports and the justiciars of Chester, Ireland, Wales, and the Channel Islands, however, refer to the ordinance made in parliament!) «astro apud Stybenethe : Coram Rege Roll, no. 163 (Hil. 1301), m. 9 ; Ryley, P ¿act ta Parliamentaria, p. 481 ; Early Statutes of Ireland, p. 238 ; Cal. Close Rolls (1296-1302), pp. 390 f. The actions mentioned in Cal. Pat. Rolls (1292-1301), pp. 470, 520, may have been heard in this parliament, but possibly in the Lent parliament. 2 Our only evidence is the writs on the close roll addressed to fourteen persons ; see Par!. Writs, i. 81. 3 Rot. Parí. i. 148—9. William de Breouse is adjourned from the Lenten parliament 1300 ad proximum parliamentum sequens, and that parliament is held at Lincoln on the octave of Hilary, 1301 ; he is further adjourned ad proximum parliamentum sequens, and that is the present parliament of the roll, i.e. on the octave of St. John the Baptist, 1302. 4 Cole, Documents, pp. 333 ff. ; cf. Pari. Writs, i. 88 ff. Note, in particular, the writs to the chancellors of the universities. * Statutes of the Realm, i. 151-2. 1

V 148


circumstances of this latter meeting are at present far from clear. The writs of summons for the morrow of Trinity (30 May) refer to the knighting of prince Edward but make no references to parliament, nor is there any mention of parliament in the margin of the enrolment ; the enrolment of the writs of expenses, dated 30 May, refers, however, in the margin to the parliament at Westminster.1 The meeting in any case must have been prolonged, for the expenses of the knights from Suffolk amounted to no less than £j ios. each, as we know from an action in the exchequer early in Edward II's reign.2 We are tempted to the conjecture that the parliament actually began well before 30 May and that the business included the consideration of the ' statutum de coniunctim feoffatis ' and the ' ordinario foreste,' both of which were issued a few days earlier.3 The parliament of Hilary 1307 at Carlisle was the last actually held by Edward I. There was perhaps an intention to hold a further parliament, for the parliamentary business unfinished at Carlisle was adjourned to Westminster until after the feast of Holy Trinity and was again adjourned to the morrow of the quinzaine of the same feast.4 There is no evidence that any such parliament met. The incidence of parliaments has been obscured by the practice of holding other assemblies attended by the clergy, the magnates, and sometimes by representatives of shires and towns, which contemporary or modern writers may loosely call parliaments. But quite obviously the great assembly after Hilary 1273 was no parliament, although to it came bishops, abbots and priors, earls, barons, knights and burgesses ; 6 for Edward's first parliament—an assembly similar in composition—was held more than two years later, nor is there any Parí. Writs, i. 164-177. Madox, Firma Bürgt, pp. loo-roi, citing Exchequer Plea Roll, 2 Edward II (E. 13/32), m. 7. It has to be borne in mind that the first writs of expenses for the Carlisle parliament were dated 20 January, the date of assembly, and that subsequently by reason of the long stay of the knights writs were granted in a different form : Parí. Writs, i. 190-1. But it is dubious if we can in this way explain the obvious difficulties connected with the 1306 parliament, for Edward seems to have left Westminster on 9 or 10 June after a stay of about three weeks ; see Gough, Itinerary, ii. 261-2. 3 Statutes of the Realm, \. 145-9 • these statutes are both given in the form of writs dated at Westminster on 27 May. It is not however certain that this date indicates the period at which the statutes were under consideration. In the wardrobe book for 34 Edward I we have a note of an allowance to W. de Thorntoft, keeper of the hanaper, ' pro denariis per ipsum solutis diuersis garcionibus portantibus diuersa breuia Regis diuersis vicecomitibus, constabulariis et alus diuersis ministris ipsius Regis per diuersas vices infra annum presentem de statutis de foresta et excepcionibus positis contra tenentes de coniunctim feoffatis in breuibus noue disseisine ' : £.101/369/11, f. 185 b. * This appears from a note at the foot of Exchequer Parliament Roll, no. 15 : Memorandum quod negocia tangencia parliamentum que adiornata fuerunt [Londoniis erased} apud Westmonasterium usque ad [crastinum uncertain} sánete Trinitatis adiornantur ulterius usque ad crastinum quindene eiusdem festi. 5 Annales Monastid (Winton.), ii. 113. The marginal annotation 'Parliament at Westminster . . . ." is without warrant. 1 2

of Edward I

V 149

evidence that any contemporary, official or unofficial, called the earlier meeting a parliament. Similarly the name of parliament must be refused to the assemblies of clergy, knights, and burgesses at York and Northampton in January 1283 ; x they lacked the king's presence, and it is impossible to reconcile the contemporary conception of parliament with two separate, simultaneous meetings. Again, we must reject the meeting of earls, barons, and knights at Westminster in November 1294 ; 2 this assembly appears to have been called together solely for the purpose of obtaining grants of taxation ; the business of the meeting seems to have been settled in a day and Edward immediately left for the West Country and for Wales. A meeting at York of knights and burgesses from the northern counties on 2 November 1295 has been recognised in an official publication as a parliament ; but the purpose of the gathering was to concert measures of defence with the recently appointed keepers of the counties beyond Trent.3 In 1296 and 1297 we find special assemblies of town representatives who are consulted about matters of which they have special knowledge—the planning of a new market town * and the resettlement of Berwick ; 5 in 1296 the special meeting was held at the same time and place as parliament ; in 1297 the two special meetings had no connexion with parliament. A colloquium spéciale, as it is termed, was held at York on Whitsunday, 25 May 1298 ; 6 to this meeting knights and burgesses as well as barons were summoned. Business connected with the Scottish war was apparently discussed ; but a regular Easter parliament had just previously been held in London and there is no reason to suppose that the York meeting was a parliament, though it is so termed by the chroniclers.7 Representatives of the towns were sumPar!. Writs, i. 10. Ibid. \. 26 [. This meeting followed an undoubted Michaelmas parliament (see above, p. 146, n. i) ; we find it difficult to suppose that this parliament lasted until 12 November. The writs dated 8 and 9 October, which must have been issued in the course of this parliament, seem to contemplate an entirely fresh assembly. We conjecture that those present at the parliament declined to come to a final decision on the question of a subsidy until county representatives had assented. 3 Cal. Pat. Rolls (1292-1301), p. 152 : indexed at p. 806 as ' Parliament of the North, at York.' 4 Pari. Writs, i. 49. The meeting place is St. Edmund's on the morrow of All Souls (3 November), for which date the parliament was summoned ; but it is clear from the London returns to the writs as well as from the writs themselves that separate representatives were sent. 6 Ibid. pp. 49-52. The first of the two meetings was summoned for 2 January ubicumque tune fuerimus in Anglia, and the second for 21 April at Berwick-on-Tweed. It is possible that the former meeting was abandoned and the second substituted. 6 Ibid. i. 65. The editors of the Lords' Report, i. 235, state that certain of these writs are annotated in the close roll de parliaments tenendo apud Eborum, but this is incorrect. 7 Hemingburgh, Chronicon, ii. 173 ; Rishanger, Chron. pp. 185 f.; Trevet, Annales, p. 371. [Also in the Husting rolls of the city of London : ante, iii. 45-6.—Ed.] The writs, dated 10 and 13 April, must have been issued before the Easter parliament was over ; but of this parliament we at present know nothing beyond the brief memoranda in the printed Rolls of Parliaments, i. 143. 1 2

V 150


moned to a colloquium at York on 25 June 1303 to discuss an increase in the customs duties,1 but this was in no way a parliament. Contemporary chroniclers again are prepared to give the name of parliament to military musters 2 and meetings of the clergy 3 and also, it would seem, to council meetings which were not held in time of parliament. Thus when Edward I held his court at Bristol at Christmas 1284 on his return from Wales, the chroniclers can call this meeting a parliament ; but they find it necessary to distinguish : it is singulare non generale parliamentum or non universale ¡eu generale sed tanquam f articulare et speciale parliamentum.* A meeting of the council in February 1286, to which the justices itinerant, as well as magnates, appear to have been summoned, is also termed a parliament : but if any parliament was held in this year it probably met after Easter.5 Another meeting of the council, held apparently by prince Edward in mid-Lent 1302, receives the title of parliament in certain chronicles.6 Any reliance upon the chroniclers, unless they are carefully checked by the records, must inevitably lead to confusion.

Pari. Writs, \. i^î. Annales Monastics, iv. 288 : a muster at Midsummer 1281. Ibid. p. 484 : the ' parliament ' at Worcester in May 1282 is the muster called for Whitsunday ; see Pari. Writs, i. 222 f. 3 Rishanger, Chron. p. 168 : meeting of clergy at Hikry 1297. 4 Annales Monastici, iv. 300. It would appear that local cases Were on this occasion brought before the council as they might be brought before the council in parliament. The Coram Rege Roll, no. 88 (Hil. 1285), contains many Bristol cases: on m. 5 one plea is decided per dominum regem et eius consilium ; another is said to have been brought sine speciali treuil per simflicem qucrimoniam. 8 John of Eversden (Florence of Worcester, Continuatio, ii. 236) appears to confuse two meetings, as will be seen by a comparison with the Osney narrative which places the discussion of relations with France at a meeting (congregatie, parliamentum) after Easter (Annales Monastici, iv. 306). John of Oxnead copies Eversden and adds that the justices were present (Oxenedes, Chronicon, p. 267). The Dunstable annalist sutes that the justices were summoned per concilium domini regis to parliament and left Bedford on the octave of the Purification (Annales Monastici, iii. 334). Mr. E. B. Graves, who has occasion to notice this meeting in his discussion of Circumspecte Agatis (E.H.R. xliii. 4), cites a writ on an eyre roll in support of John of Oxnead's statement that the justices were summoned to the parliament : but this writ neither summons the justices nor contains the word parliament. It states that prektes, earls, barons, and other lieges have been summoned to Westminster on the octave of the Purification to discuss (tractaturî) with the king quedam ardua negocia, and consequently cannot prosecute their own pleas and business in the eyre : the eyre is therefore to be suspended until further order (Assize Roll, no. 572, m. 10). It is possible, as the Dunstable narrative suggests, that the justices received a summons kter. The concurrence of the statement in the Osney annals with the exchequer and chancery writs (see Appendix), the former of which was issued in the Michaelmas term, affords fairly strong presumptive evidence in favour of an Easter parliament. Edward was at Westminster in the latter part of April as well as in February (Gough, Itinerary, ii, 18, 20). * Rishanger, Chnn. p. 211 ; Annales Land. p. 127. 1

2

of Edward I APPENDIX

V 151

TABLE OF THE ENGLISH PARLIAMENTS OF EDWARD I

[Though, in compiling this table of parliaments, an attempt has been made to take into consideration every reference to parliament in printed and, as far as possible, unprinted sources, it is impracticable for obvious reasons to cite all these references here. A selection of those has been given which place an actual session of parliament beyond doubt. But in cases where the term has been enclosed within square brackets, it is highly probable that no parliament met, though the evidence cited shows that one was intended or regarded as likely to be held. For convenience in tabulation, C.C.R. i. denotes the Calendar of Close Rolls (1272-79) ; C.C.R. ii(1279-88) ; C.C.R. iii. (1289-96) ; C.C.R. iv. (1296-1302) ; C.C.R. v. (1302-1307). Similarly, C.P.R. i. denotes the Calendar of Patent Rolls (1272-81) ; C.P.R. ii. (1281-92) ; C.P.R. iii. (12921301) ; C.P.R. iv. (1301-1307). C.F.R. denotes the Calendar of Fine Rolls (1272-1307).] Year. Term. 1275 Easter

1276

Place. Westminster

Michaelmas

Westminster

Easter

Westminster

Michaelmas 1277

Easter

Westminster

[Michaelmas] * 1278

Easter

Westminster

Midsummer

Gloucester

Michaelmas

Westminster

Easter

Westminster

Michaelmas

Westminster

1280

Easter

Westminster

1281

Michaelmas Easter

Westminster Westminster

1279

Michaelmas 1

Authorities. Chronicle. Record. Annales Mon'as'it'ci, ii. C.C.R. i. 197-8, 229 (Parí. Writs, i. i) 119; iv. 262-3,467 C.F.R. 43, 60 Stat. Realm, i. 26 ff. C.C.R. iii. 109 Annales Monastic}, iii. Ancient Correspondence, xx. 1 80 266; iv. 265-6; 467 Annales Monastic!, iv. C.C.R. i. 338 470 C.F.R. 65 C.C.R. i. 305 Stat. Realm, i. 42-3 C.C.R.Í. 372,375 C.P.R. i. 195 C.C.R. i. 380 Coram Rege Roll, 3 4/7 b C.P.R. i. 275 L.T.R. Mem. Roll, 6-7 Edw. I (E. 368/52), m. 3 b Rishanger, 93 Coram Rege Roll, go/34b ; 73/19 Chane., Pari, and Council Procs. 1/6 Hemingburgh, ii. 5 Chanc. Misc. 3/21 Annales Monas tici, iv. C.C.R. i. 505 474 Chane., Pari, and Council Procs. 1/13 C.F.R. 120 C.C.R. i. 582 C. F.R. 120 Ancient Correspondence, xiii. 121 Chanc. Pari, and Council Procs. 69/13 Coram Rege Roll, 57/28 ; 64/31 b Ancient Petitions, 6881 Annales Monastic!, iv. C.C.R. ii. 91 479-80 C.P.R. i. 476 Coram Rege Roll, 64/5 r

Edward was on the borders of Wales until almost the end of 1277 ; see Gough, Itinerary, i. 74-78.


V 152 Year. Term. 1282 [Easter]

[Michaelmas] 1283

Michaelmas

1284

[Easter] [Michaelmas] Easter

1285

Michaelmas 1286

Easter

1287 1288 1289

Easter

1290

Hilary Easter

Michaelmas

1291

Epiphany

1292

Epiphany [Easter]

1293 Easter Michaelmas

Authorities. Record. Chronicle. C.C.R. ii. 91, 105 C.P.R. ii. ID Coram Rege Roll, 64/57 K.R. Mem. Roll 9-10 Edw. I (E. 159/55), mm. 2, 2b, 3 C.C.R. ii. 152-3,167 C.F.R. 168 Annales Monastics, iv. Shrewsbury C.C.R. ii. 216, 218 (Acton Par/. Writs, i. 15-6 487 Burnel) Chane., Pari, and Council Procs. 2/2 Stat. Realm, i. 53-4 C.F.R. 199 C.C.R. ii. 274 Annales Monastic!, iii. Westminster C.C.R. ii. 331-2 317; iv. 304 C.P.R. ii. 156 Cai. Docts. Ireland, iii. 42 Stat. Realm, i. 71 ff. Winchester1 C.C.R. ii. 3 3 5-6 Stat. Realm, i. 96-98 Annales Monastici, iv. Westminster C.C.R. ii. 340, 388 L.T.R. Mem. Roll, 13-14 Edw. I 306-7 (E. 368/59), m. 4b Place.

C.C.R. iii. 6 Coram Rege Roll, 121/41 Westminster Rot. Par!, i. 15-25 Cal. Chañe. Rolls, Var., 338-40 Cole, Documents, 5 5 Westminster Rot. Parí. i. 26-44, 62-65 C.C.R. iii. 132-3 Cole, Documents, 68 Pari. Writs, i. 21 ff. Rot. Parí. i. 45-62 Clipston C.C.R. iii. IO2, 103 Ashridge Raí. Parí. i. 66-69 State Trials of Edw. I, 36 Westminster Rot. Parí. i. 70-90 Coram Rege Roll, 131/3 3 b Westminster Ätf. P¿r/. i. 86, 89 C.F.R. 294; 295 London a Roi. Parí. i. 91-106 C.C.R. iii. 283, 321 Westminster A»/. .Por/, i. 112-124 Colé, Documents, 131 ExcL, K.R. Bille, 1/2 Westminster

Annales Monastics, iii. 348 Trokelowe, 44

Annales Monastici, iii.

376 C0//ÉW, 233

1 Edward was in the neighbourhood of Winchester during all September and most of October and seems actually to have been there from 3 to 16 October : Gough, op. cit. i. 171-2. 1 Where we have found no direct statement that Westminster was the place of meeting, we have retained London as the designation; it is quite clear, however, that as a rule London signifies Westminster.

of Edward I

V 153 Authorities.

Year. 1294

129;

Term. Easter

Place. Westminster

Michaelmas

[Westminster] 1 Westminster

August 27 November

1296

3 November

1297

24 February Trinity Michaelmas

1298 1299

Easter Lent

Easter 18 October 1300

Lent

1301

Hilary

1302

Midsummer

Michaelmas

Record. Rot. Parí.i. 127 C.P.R. iii. 108 Coram Rege Roll, 142/3 b

Chronicle.

Annales Monastic}, iii. C.C.R. iii. 445-6 398 ; iv. 522 (Parí. Writs, i. 28-9) Rot. Par!, i. 132-142 Cotton, 297-8 Westminster C.C.R. iii. 463-4 (Par/. Writs, i. 32) RisÀanger, 165 St. Edmunds C.C.R. iii. 513 (Parí. Writs, i. 47 ff.) Annales Monastici, iii. Stevenson, Documents, ii. 31 404 Hist. MSS. Comm., Rep. Par. Collections, i. 263 Add. MS. 7965, f. I4b Cotton, 320 C.C.R. iv. 81 Salisbury Hemingburgh, ii. 121-2 (Parí. Writs,!. 51-2) Add. MS. 7965, f. 108 Westminster C.C.Ä. iv. 21, 23-4, 65, 107 L.T.R. Mem. Roll, 25-6 Edw. I (E. 368/69), m. I4b C.C.R. iv. 67, 128-130, 132 Eemingburgh, ii. 147-8 London (Parí. Writs, i. 55-6) Rot. Parí. i. 143 London Rishattger, 190 Westminster C.C.R. iv. 294-5 (Parí. Writs, i. 78 ff.) L.T.R. Mem. Roll, 26-27 Edw. I Annales Monastici, iv. (E. 368/70), mm. 37, 39b, 40 544 Rishanger, 389 Westminster C.C.R. iv. 300, 390 (Stepney) (Parí. Writs, i. 80-1) New Temple, C.C.R. iv. 318 London * (Parí. Writs, i. 81) Hemingburgh, ii. 186 Westminster C.C.R. iv. 373-4 (Parí. Writs, i. 82 ff.) Roí. Parí. i. 143-4 Rishanger, 454 Lincoln C.C.R.iv. 408-12 (Parí. Writs, i. 88 ff.) Roi. Parí. i. 145 Ann. Lona. 128 Westminster C.C.R. iv. 530-1, 583 Hemingburgh, ii. 223 (Parí. Wríts,\. Il2ff.) C.P.R. iv. 40 Rot. Parí. i. 146-150 y/»#. £0W. 129 Westminster C.C.R. iv. 559, 592-3, 598 (Parí. Writs, i. II4ÍF.) Rot. Parí. i. 150-3

1303 1304 Edward was at Westminster from 21 September to 13 November; see Gough, op. cit. ii. 121-2. There is a fairly strong presumption in favour of an actual parliament in the particularity with which the place of meeting is given. Edward was at Westminster from 12 to 28 October. But see above, p. 147. 1 1


V 154

Authorities. Record. Chronicle. C.C.R. v. 225, 316, 333-5 Hemingburgh, ii. 219 (Pari. Writs, i. 136 ff.) Rot. Parí. i. 159-181 15 September Westminster C.C.R. v. 336, 340, 342, 345 (Pari. Writs, i. 158 ff.) Rot. Pari. i. 182-7 Trinity Westminster C.C.R. v. 449 (Pari. Writs, i. 164 ff.) Madox, Firma Bürgt, loo—i (citing Exch. Plea Roll, 2 Edw. II (£.13/22) m.y) Hilary Carlisle C.C.R. v. 470-1 Langtoft, 377

Year. Term. 1305 Lent

1306

1307

Place. Westminster

(Par/. Writs,!, i&iff.)

&tf. /W. i. 188-223

Hemingburgh, ii. 254,,

259

NOTES 130, 1.22 See also the endorsements on Ancient Petitions, nos. 1544: Habeat respectum ad aliud parliamentum; 4413: Rex respondebit in proximo parliamento; 8025: Mandatur iusticiariis quod ad parliamentum Pasche mittant recordum et processum; L. T. R. Memoranda Rolls, no. 64, m.23d: a demand is postponed on 11 December 1292 'usque ad proximum parliamentum post festum Pasche proximo futurum' (i.e. 1293); no. 74, m. 40: the imposition of tallage is postponed on 20 May 1304 'ad proximum parliamentum regis'. 131, 1.18 Cal. Plea and Memoranda Rolls of City of London, p.94: proclamation of the king's peace on the occasion of parliament; Cal. Letter Books, London, C., p. 145: proclamation for the protection of strangers coming to parliament. 131, n.l Printed Sayles, King's Bench, ii. 15. 132, 1.9 For the history of the court of the steward and marshal (not called the 'Court of the Verge' in the Middle Ages) see ibid., iii. p.lxxxiii ff., vii. p. xli ff. 132, n.4 Printed ibid., ii. 18. 134, 1.5 Cf. Cal. Close Rolls, 1279-1288, p. 22f. : on 8 June 1280 reference is made to 'the next parliament, which will be at Three Weeks after Michaelmas'; King's Bench Rolls no. 98, m. 26: a writ, attested on 13 August 1285, refers to 'the next Easter parliament at a Month after Easter'; 141, m. 35d: in Trinity term 1294 the king of Scotland was given a day in 'the next Easter parliament, that is after Easter'. 134, n.2 For a draft of this letter see Ancient Correspondence, XIII. 197. 135, n.4 For the acta of a council, meeting prior to the Easter parliament of 1275, which arranged the business of that parliament, see Exchequer Miscellanea 2/39, discussed in Sayles, The King's Parliament of England, p. 68f. 136, 1.14 For Michaelmas term 1274 read Hilary, Easter and Trinity terms 1275. 136, n.5 Printed Sayles, Kings Bench, i. 13f. 137, n.9 Below, XIX. 139. 138, n.8 Printed Sayles, King's Bench, i. 144. 139, n.l Printed ibid.,i. 113. 140, n.3 Below, XIX. 154-5. See also Richardson and Sayles, Rotuli Parliamentorum Anglie Hactenus Inediti (Camden Soc., 1935), pp. 12-15.

of Edward I 141, n.l

142, n.12 143, n.4 144, 1.28 145, n.5 n.6 n.10 146, 1.1 n.l 147, 1.17

147, 1.19

147, 1.26 148, n.3 149, n.2 150, n.4 152, n.2

152

V 155

Cf. Ancient Correspondence, XII. no. 147: in a letter, attested at Bordeaux on 15 February 1288, the king ordered his lieutenant in England to hear a plea in consultation with the treasurer and barons of the exchequer, the judges of both benches, and other members of the council in England. Printed Sayles, King's Bench, i. 179. See Cal. Chancery Warrants, i. 246. The justices in eyre in Devon inquired whether all of them had to come to parliament, for much time was taken up by attendance there (Ancient Correspondence, XXIV. 74: printed Sayles, King's Bench, i. p. cxlii). See also L. T. R. Memoranda Roll, no. 62, m. 3, where the case of Rex v. John Filiol was discussed at Ashridge. Below, XIII. A writ, dated 18 August 1292, states that the next parliament would be after Easter (King's Bench Roll, no. 134, m. 12). Note the reference on 10 December 1293 to the last Michaelmas parliament and the next Easter parliament (Cal. Patent Rolls, 1292-1301, p. 108). Printed Sayles, King's Bench, m. 28. Note also L. T. R. Memoranda Roll, no. 70, m. 30, for homage in the Michaelmas parliament of 1294. And below, VI 539, n.l. Cf. Ancient Correspondence, XIII. no. 105: the king's representatives were instructed not to allow any further postponements in negotiations with the king of France, for the English king had already been criticised for permitting a change in the place where they had agreed to meet, which was 'acordez par nous et nos bones gentz en nostre commun parlement'. However, parliament was to be postponed from Michaelmas to the Morrow of St. Edward (13 October) to allow news about the negotiations to arrive. A writ of privy seal, dated 30 May 1303, ordered the justices of the king's bench to postpone proceedings 'until our next parliament'. The record shows that this met at Lent 1305 (King's Bench Roll, no. 173, m. 35). Cf. Rot. Parí., i. 168 (79): a petition in the Lent parliament of 1305 refers to a writ obtained 'in the last parliament preceding'; this was the Michaelmas parliament of 1302 (ibid., i. 185). See B. L., Harl. MS., 6806, fos. 353-361, for abstracts of petitions presented in the autumn parliament of 1305. For Doubts about the assembly in May 1306 see below, XXVI. 401. This conjecture may be wrong, for Edward I remained at Westminster until 13 November. Cf. above, p. 144, where parliament, which opened on 22 April 1275, lasted until 15 July, when knights were summoned to attend. Printed Sayles, King's Bench, i. 137. A protest in 1260 against holding an assembly at the Tower of London instead of Westminster 'ubi parliamentum tenere consueverunt' (Annales Monastici, III (Dunstable), p. 217); cf. Historia Roffensis, fo. 45: in 1325 parliament had opened in the Tower of London and was transferred thence to Westminster; and Chancery, Pari, and Council Procs., 46/10: a colloquy with merchants, authorised hi parliament in July 1340, was to be held 'at London or Westminster'. To the list add 1291 June Norham (see below XIII. 306, n.l and Notes)


VI The Kings Ministers in Parliament, 1272-1307 THE PARLIAMENTS OF EDWABD I

H

OW was the work of the medieval parliament performed and who did it ? These are questions that have rarely been put, to which hardly more than one attempt has been made to supply an answer;1 and it is with the purpose of answering some part of the question, ' who did the work of the medieval parliament ? ' that we have put together such information as we have been able to discover on the work of the king's ministers—his clerks, judges, and lay officers—who were employed on the business of the English parliaments from the accession of Edward I to the death of Edward III. First we would summarize, as briefly as we may, what we can learn of the nature of the institution in which the king's ministers were called upon to officiate. Since we are here concerned only with the parliaments of the three Edwards, we need not speak of parliamentary origins ; but it is clear that, at least as early as the days of the Provisions of Oxford, there had been a demand that parliamentary sessions should follow some regular course. In the latter years of Henry III, the proper number of parliaments, men thought, should be three a year ; 2 in the early years of Edward I, two parliaments a year were normally found to be sufficient;3 and in the fourteenth century at least one parliament each year was desired.4 The transition from frequent to relatively infrequent parliaments was determined primarily by the nature and volume of business transacted, just as in France, where the parliament developed irrespective of political considerations, the sessions, which were usually four a year in the early period of its Apart from Maitland in his Introduction to the Memoranda de Parliamento, no one except Dr. L. Ehrlich appears to have investigated such questions in any detail (Oxford Studies in Social and Legal History, VI : Proceedings against the Crown, pp. â 83ff.). Cf. Trans. Roy. Hist. Soc. (4th ser.), xi. 155 ff. 3 4 Ibid. vi. 79ff., viii. 77. Bull. Inst. Hist. Research, v 1

VI 530 THE KING'S MINISTERS IN organization under Saint Louis, gradually diminished in number until one long session occupied the whole judicial year. This parallel suggests at once points of similarity and of difference. Under Saint Louis and Henry III the functions of the parliaments of France and England were indistinguishable, their practices and processes often similar.1 Under Charles V and Edward III the divergence is already marked : the English parliament has become a representative institution ; the French parliament is judicial, remote (although not entirely removed) from politics. If we essayed to depict the work of the judges and greffiers s of the French parliament between the middle of the thirteenth and the end of the fourteenth century, from the time of Jean de Montluçon to that of Nicholas de Baye, we should notice that the parliament becomes more elaborately organized, that the professionalism of the men who compose the court and the g greffe deepens, but we should be describing men with much the same outlook performing the same functions.2 During this same century and a half in England the unes of development have been different : there are changes in the procedure of parliament ; the balance of the various functions performed by parliament shifts ; there is a greater infusion of politics ; and the position and business of the king's ministers alter as parliament itself alters. In the parliaments of Edward I the king's ministers occupy a very prominent place indeed. There is much work to be done and work that requires a high degree of professional competence. As soon as the king comes home from the East, it is possible to restart the parliamentary organization. Twice a year the parliament is to meet unless war or the king's absence shall prevent. There are questions of law and administration to be resolved ; there may be legislation to be promulgated or sometimes aid to be demanded by the king ; there may be homage to be rendered ; occasionally there will be questions of war or peace and high politics to be discussed. But, above all, there will be a mass of petitions to be considered, petitions touching administration, petitions touching the king's grace and the king's benevolence.3 We need not seek here to explain how it came about that parliament was dealing with all these matters nor to what extent they were dealt with at other times and in other places. In parliament business of these kinds is found, and quite obviously the greater part of it is not 1 Cf. Trant. Boy. Hist. Soc. (4th aer.), ri. 166 ff. * For the parliament of Paris at this period we need give no more than a general reference to the Notice sur les archives du parlement de Paris by A. Grün, prefixed to Boutaric's Actes du parlement de Paris (1863) ; F. Aubert, Le parlement de Paris de Philippe le Bel à Charles VII (1886, 1800), and Histoire du parlement de Paris de l'origine à François I (1894); G. Ducoudray, Les origines du parlement de Paris et la justice aux xiii' et xiv" siècles (1902). 1 Cf. Butt. Inst. Hist. Research., v. 129 ff. ; vi. 71 ff.

PARLIAMENT, 1272-1307

VI 531

such as can be transacted by a large deliberative body, even if split up into ' estates ' for consultation apart upon particular issues. The procedure of the medieval parliament as described, for example, by Stubbs in the twentieth chapter of his Constitutional History assorts but ill with the functions to be performed by parliament under Edward I ; fortified as such a description may be with citations from records of a later age, it is quite clearly very largely irrelevant to a parliament of the second half of the thirteenth century or the earlier part of the fourteenth century. At that period most men who had an interest in parliament were like that monk of Peterborough who could write of the Easter session of 1275 : ' The king, so they say, promulgated in his parliament at London certain provisions and constitutions, useful and necessary for the whole kingdom ', and then described at length what really interested him, the settlement in parliament of two disputes, the one concerned with the abbot's prison, the other with the right of the abbot to demand service for two knight's fees.1 Somehow or other a great deal of such personal and private business, interspersed with a little that was political and general, had to be sifted and settled, and the machinery of parliament must plainly have suited the bulk of its work if parliament was to function at all. The records which parliament has left from the beginning of its organized existence can be made to tell us a great deal about the parliamentary machine. Leaving aside the comparatively sparse records of Henry III, let us glance at the records of the parliaments of Edward I, which begin to grow bulky in the year 1290, and in particular at the rolls consecrated to the business of parliament.2 These rolls are not a homogeneous series : among them are rolls that record proceedings before the council ; there are rolls that record the proceedings of auditors of petitions ; there is an occasional roll that records the decisions of some tribunal upon inquests that have been referred to parliament. Again, there are records of parliamentary business upon other rolls, those of the king's bench, the chancery, and the exchequer, which by no means duplicate the records on the parliament rolls ; but these departmental records are records of council business, of the council in parliament which, viewed from this angle, is not so much a court of appeal as an afforced court to serve any one of the subdivisions of the curia regis that needs strengthening—perhaps by the experience of the king's ministers, perhaps by the counsel of the wise and great of the kingdom, perhaps by the king's countenance— before it proceeds to a decision. It is before the council that decisions are given in important and difficult matters or matters in which the king may be supposed 1 s

Chronicon Petroburgense (Camden Society), p. 21 f. Cf. Bull. Inst. Hist. Research, vi. 129 fi.

VI 532 THE KING'S MINISTERS IN

to have a personal interest ; but the council is not usually to be approached direct. The judges, the chancellor, the treasurer, and barons of the exchequer will, at their own instance or that of an interested party, bring before the council their difficulties or matters which concern the king ; occasionally perhaps a bishop or some other magnate may also bring a question before the council. In general, however, there is no direct path.1 If a suitor wishes to approach the council in parliament he must present a petition, and when parliamentary procedure achieves a definite form, perhaps from the very first of Edward I's parliaments, every petition will need to pass two intermediate tribunals, the receivers and the auditors. Of the procedure adopted by the council to reach a final decision we shall say something presently, but here we would remark that parliament evidently includes a series of at least three tribunals, bodies similar to those that in the French parliament came to be termed chambres. Yet parliament is a single whole : its parts do not function separately : it is subject to a unifying authority. One name occurs frequently in documents relating to the early parliaments of Edward I—the name of John of Kirby or, as the name has become familiar by usage, Kirkby. He was, we may recall, a clerk of Henry Ill's,2 keeper of the rolls of chancery (the first known to us by that title)3 and, by courtesy at all events, vice-chancellor.4 Under Edward I he was an important member of the king's council—' domini regis consiliarius non minimus ', as one of his correspondents calls him.5 An occasional note of warranty upon the chancery rolls and references to him in other records suggest that he may have acted as clerk of the council.' In 1 Bull. Inst. Hist. Research, v. 130. * He seems to have been a chancery clerk of some standing in October 1262 (Shirley, Royal Letters, ii. 221). * Maxwell Lyte, Great Seal, p. 5 ; Cal. of Pea. Rolls, 1266-72, p. 475 ; Jacob, Studies in the, period of Baronial Reform, p. 380. 1 Shirley, Royal Letters, ii. 361 ; Annales Monastics (Rolls Series), iii. 305 ; Maxwell Lyte, Great Seal, pp. 323 f. He had the custody of the great seal in August 1272 and on several other occasions : see Excerpta e Rotulis Finium Hen. Ill, ii. 575, 590 ; Col. of Pat. Rolls, 1266-72, p. 715 ; 1272-81, pp. 136, 259, 316, 426 ; Col. of Close Rolls, 1272-79, pp. 444, 531 ; 1279-88, pp. 77, 147. He is called cancdlarius by Bartholomew Cotton (Historia Anglicana, p. 167), but this looks like a slip for thtmurarius. 6 Ancient Correspondence, ix. 8. Cf. ibid. ix. 100, where Kirkby is addressed as ' illustris regis Anglie clericus et consiliarius '. See also Parliamentary Writs, i. 6, 9, 17. * Cal. of Glose Rolls, 1279-88, pp. 171, 215 ; Col. of Pat. Rolls, 1281-92, pp. 62, 66, 71 : these are all 1282-3. For an earlier instance of the kind, see L. T. R. Memoranda Roll, 7 Edw. I (E. 368/52), m. 5 a : ' Audito compoto Galfridi de Neuill' iusticiarii foreste regis vitra Trentam de exitibus eiusdem foreste, debet iiijxxiij Ii'. xvij s. iiij d. Pro quibas liberatur marescallo. Postea venit lohannes de Kirkby et ex parte domini regis denunciauit baronibus quod ponerent in respectum predicta arreragia vsque ad proximum parleamentum. Et habet respectum vsque tune '. This is in the Easter term 1279. Similar references to Kirkby occur on the Coram Rege Rolls between Easter term 1282 and Hilary term 1285 (K.B. 27/67, m. 11 d; 68, m. 4; 75, m. 2 ; 76, m. 5 d; 88, m. 1). See also Ancient Correspondence, x. 36, infra p. 533 n. 9. The parallel presented in the case of Gilbert of Rothbury seems to us significant ; see infra, pp. 537 ff.


VI 533

January 1284 he rose to be treasurer and so became familiar to generations of antiquaries for his connexion with Kirkby's Quest. While treasurer he was, in 1286, made bishop of Ely and died in March 1290. What then had Kirkby to do with parliament ? We believe Kirkby to have been the minister charged with the duty of supervising the arrangements for parliament, quite apart from any responsibilities that may have fallen to hún by reason of his position in the chancery or his duties as clerk of the council. In no other way can we explain his relations, in the early years of the reign of Edward I, with those who had business with parliament. We find, for example, the abbot of St. Mary's, York, requesting him to arrange that a Jew and a false charter may be brought by the sheriff of Yorkshire before the king and council in the next parliament.1 William Reymund, who is acting for Gaston de Beam against the count of Bigorre, asks Kirkby to adjourn certain business to parliament if this can possibly be managed.2 Even Ralf of Hengham, chief justice of the king's bench, asks for his counsel and aid on behalf of the mayor of London, should complaints be made against the latter in parliament.3 A letter is addressed to him asking for the postponement until the next parliament of certain business of the earl of Gloucester's.4 He is pressed to warn the bishop of Hereford against prosecuting his cause at Rome when a day had already been assigned him in parliament for the settlement of his differences with the abbot of Reading.5 The archbishop of Armagh sends a messenger to Kirkby so that he may get an early intimation of the reply made to certain petitions that had been referred by the council to parliament.6 The bishop of Worcester writes to Kirkby, now bishop of Ely, explaining that illness prevents him from attending parliament, and requests that the discussion of certain business affecting him might be deferred.7 About the same time a petition is addressed ' A conseyl nostre seignour le roy e nomement a sire lohan de Kirkeby euesk de Ely '.* We may note in passing that in June 1280 Kirkby is ordered to have released certain Channel Islanders, if this has not already been done, according to the decision of the council in the preceding Easter parliament.9 If, as we have suggested, he was at this time clerk of the council it would, we think, be in this capacity that he 1

Ancient Correspondence, viii. 113. Ibid. x. 100 A. Of. the letter of Edmund Crouchback printed by F. J. Tanquerey, 3 Recueil de Lettres Anglo-Françaises, no. 20. Ancient Correspondence, viii. 123. 4 6 6 Ibid. ix. 108. Ibid. x. 8. Ibid. x. 87. ' Ibid. x. 136. 8 Ancient Petition, no 1589 : for the date, see infra, p. 534 n. 3. * Ancient Correspondence, x. 36 : ' Quia homines de Insidia nobis grauiter conquest! sunt quod non sunt liberati secundum quod tibi precepimus, vobis mandamus quod, si sint illi qui in presencia nostra nuper apud Westmonasterium erant constituti. sine dilacione deliberan faciatis secundum quod prouisum fuerit per consilium nostrum in vltimo parleamento apud Westmonasterium '. a

VI 534 THE KING'S MINISTERS IN received instructions such as these. But when a clerk of the council has special responsibilities also for parliamentary business, it may not be a simple matter to disentangle his two sets of duties : that the duties were separate will be made clear by our account of the official career of Kirkby's successor. The nature of Kirkby's functions in relation to parliament is indicated by another document, connected with the Michaelmas parliament of 1283. Joan of Coleville was required to be present at that parliament to receive judgement upon an inquest taken by the sheriff of Suffolk ; the back of the writ bears, beside the sheriff's return, the endorsement ' pro Johanne de Kirkeby '-1 This endorsement does not mean that Kirkby will himself deal with the case in parliament, for we know that it was in fact remitted to Hugh of Kendal for expedition.2 Kirkby is Kendal's superior and Kirkby's office it is to make arrangements for the parliament, to order the business, and provide for its dispatch. These duties he seems certainly to have performed until 1289 ; 3 we guess that a change may have been made after the king's return from France in August, when a great many changes were being made in the personnel of the courts. In any case there was only one more parliament for which he could have had any responsibility, that of Hilary 1290, for on Palm Sunday he lay dead. Let us now look at the documents, unfortunately few, which tell us something of the manner in which the business of parliament was conducted during Kirkby's period of office. The order of 1280 concerning petitions presented to the king in parliament is well known : petitions were to be divided into four categories and were to be referred respectively to the chancellor, the exchequer, the justices, and the justices of the Jews ; only through the chief ministers of the king was the council to be approached.4 But this order would seem merely to require a procedure rather more stringent than that already in force : for a petition, which is ascribed to 1278, tells us that Robert of Scarborough and Nicholas of Stapleton, the receivers of petitions at some earlier parliament, had sent the petitioners to the exchequer, where in fact they were denied satisfaction.5 The memoranda which have been preserved 1 Chano. Miso. 14/4/27. * See the memoranda of this parliament printed in the Bull. Jnst. Hist. Research, vi. 154-6. * This its established by the letter from the bishop of Worcester to which reference is made supra, p. 533 n. 7. Kirkby is addressed as bishop of Ely and the date cannot therefore be earlier than July 1286. But the only parliament that can be traced between Easter 1286 and Hilary 1290 is that held by the king's lieutenant at Easter 1289 ; see Bull. Inst. Hist. Research, v. 142. Ancient Petition, no. 1589, may have been presented on this occasion ; supra, p. 533. 4 Printed from the Close Eoll by Ryley, Plácito, Parlamentaria, p. 442 and Ehrlich, Proceedings against the Crown, p. 235 ; Cal. of Close Rolls, 1279-88, pp. 56 f. 6 Rot. Parí., i. 10, no. 41.


VI 535

of the Shrewsbury parliament of Michaelmas 1283 give us further light upon the manner in which petitions were dealt with after the preliminary sorting which we must presume them to have had at the hands of the receivers.1 They were divided between two senior clerks of the chancery, 'H ' of Hamilton2 and Hugh of Kendal, to expedite. Expedition may here mean two things : an immediate decision may be made, or the case may be referred for fuller consideration to the council. But the council is hardly a suitable body to examine in any detail intricate matters of merely private interest. It decides, but its decision is very frequently not a final judgement but a direction as to the means to be taken to arrive at a final settlement. Therefore the council will not only refer cases to the justices, the chancery, the exchequer, or some appropriate minister3, but it will on occasion refer matters to specially selected commissioners. Thus in the parliament of Michaelmas 1283 the business of the earl of Cornwall is referred to Walter of Amersham and the business of Hugh de Plessis to William of Hamilton.4 In a parliament of 1280 Stephen of Penchester, Henry of Brandeston, Roger Loveday, and Ralf of Sandwich are sent by the king ' hors de sa chambre ', and hear in a little room apart a suit between the abbot of St. Augustine's and the barons of Sandwich.8 In the Easter parliament of 1279 the ' negocium de Seyland '—the disputes between English merchants and the merchants of Zealand and Holland—is referred for determination to Roger Mortimer, Nicholas of Stapleton, John de Louvetot, and master Henry of Bull. Inst. Hist. Research, vi. 154 f. We suspect that William is meant, although our knowledge of the staff of the chancery under Edward I is not sufficiently precise to make this correction certain. 3 For some examples selected from this period, see Ehrlich, Proceedings against the. Crown, pp. 108 fi. We may note especially as illustrating this practice, and also the position of John Kirkby, that petitions dealing with wardships were referred to him. This has, of course, nothing to do with his functions as clerk of the parliament. He is already dealing with business of this kind under Henry III (Shirley, Letters of Henry III, ii. 299), and we have a olear indication that he was in charge of it in 1282 (Gal. of Pat. Rolls, 1281-92, p. 30). In 1278 a widow asks for her reasonable dower : the matter is referred to Kirkby and the king's sergeants-at-law (Bot. Pari. i. 7 (no. 31) ; for date see Gal. of Inquisitions Post Mortem, ii. 151, Gal. of Fine Rolls, i. 90, Gal. of Close Bolls, 1272-79, pp. 396, 517). In 1279, apparently, there is referred tp Kirkby a petition from an heir under age, who asks for his heritage that has been wrongly taken into wardship (Rot. Parí. i. 11 (no. 51) ; for date see Gal. of Inquisitions Post Mortem, ii. 166, 173 f., Cal. of Fine Rolls, i. 108, 114, 121, Gal. of Close Bolls, 1272-79, pp. 35, 454, Gal. of Pat. Rolls, 1272-81, p. 264). In 1282 Edmund the king's brother asks for a wardship improperly taken by the king, because the lands, held by Kobert ' Greille ' of the honour of Ferrers, were not held in chief : this petition (Ancient Petition, no. 5440) is endorsed : ' Au rey, a iustices, a lohan de Kyrkeby e a labbe de Westmuster '. The date of the petition is established by Gal. of Fine Bolls, i. 159, Col. of Inquisitions Post Mortem, ii. 239 : in May 1282 the manor of Periton which had belonged to Robert ' de Greyly ' had been committed to the abbot of Westminster (the treasurer) (Gal. of Close Rolls, 1279—88, p. 156). Although such business as a rule seems to have been referred to Kirkby, there were exceptions ; see infra, p. 536 n. 3. 4 Bull. Inst. Hist. Research, vi. 154. 5 Parliamentary Writs, i. 8. 1

a

VI 536 THE KING'S MINISTERS IN Newark.1 In the Michaelmas parliament of 1278 the contentions between the king of Scotland and the bishop of Durham are heard by the bishop of Norwich, John de Vescy, master Robert of Scarborough, and Thomas of Normanville, and the case is again remitted to the same commissioners for determination after a hearing before the council.2 Apparently at the Easter parliament of that year two petitions relating to the wardship of the lands of Richard Francis are referred to Nicholas of Stapleton and William of Saham.3 In the Easter parliament of 1275 John fitz John and Geoffrey of Aspall are appointed auditors of the contentions between the abbot of St. Mary's, York, and the citizens, and the hearing takes place in the time of parliament, after which the case is referred to other commissioners to determine.4 These examples will suffice to show that the conduct of the business of parliament was throughout very largely in the hands of trained lawyers and administrators. Robert of Scarborough, a chancery clerk,5 and Nicholas of Stapleton, a justice,6 we may safely take as representative of the receivers of petitions in the early parliaments of Edward I : for sorting out petitions according to the court or department to which the subject matter belonged professional competence was clearly necessary. Then in 1283 we see two chancery clerks expediting petitions. Of the commissioners who, in parliament or after parliament has risen, are specially charged with business which the council has not determined, clearly the majority are common lawyers or king's clerks. To take the examples we have given : Amersham, Hamilton, and Scarborough are employed in the chancery ; ' Newark,8 Brandeston,9 and Aspall are all prominent royal clerks and the lastnamed is keeper of queen Eleanor's wardrobe.10 Stapleton, Trans. Boy. Hist. Soc. (4th ser.), x. 60 ; Gal. of Pal. Rolls, 1272-81, pp. 262, 313. Fondera, i. 565.

Sot. Pari. i. 10 (nos. 46, 47) : for date, see Cal. of Inquisitions Post Mortem, ii. 144, 272 Gal. of Fine Rolls, i. 94. Col. of Pat. Bolls, 1272-81, p. 120.

He was styled ' clerk of the chancery ' in 1278 (Col. of Close Soils, 1272-79, p. 501), but was doubtless serving there before (cf. Md. p. 332, Cal. of Pat. Rolls, 1266-72, p. 451). • Foss, Judges, iii. 156 ; Col. of Close Bolls, 1272-79, p. 143 ; Col. of Pat. Bolls, 1272-81, p. 89. 7 For Amersham and Hamilton, see Cal. of Close Bolls, 1272-79, p. 409. Note that in 1289 Hamilton is advising the prior of Chrigtchurch, Canterbury, to proceed by way of petition in parliament (Hist. MSS. Comm. Bept. on Various Collections, i. 257). For Scarborough, see supra, n. 5. 8 Foedera, i. ii. 537, 542, 597, 625, 734 fi. ; Cal. of Pat. Bolls, 1272-81, pp. 259, 264, 310, 339 ; Col. of Close Bolls, 1272-79, pp. 349, 417. ' Col. of Pat. Bolls, 1266-72, p. 392 ; 1272-81, pp. 41, 455 ; 1281-92, p. 116 ; Col. of Close Bolls, 1272-79, p. 563 ; 1279-88, pp. 133, 224. He became bishop of Salisbury in 1288. 10 Tout, Chapters in Medieval Administrative History, ii. 42 n. ; Add. MS. no. 35294, fo. 5. His name is variously spelled ; we presume that he took it from Aspall in Suffolk.


VI 537

Sahara, and Louvetot are judges,1 while Loveday2 has been, and Normanville3 is later to be, employed as a justice. William Middleton, the bishop of Norwich, has been in the king's service before his elevation to his see and has acted as the king's proctor in the parliament of Paris.4 Penchester5 and Sandwich8, although belonging to the ranks of the lesser baronage, are constantly employed by the king on administrative and judicial work. When barons, such as Roger Mortimer, John fitz «John, and John de Vescy,7 are appointed as commissioners for parliamentary business, they are clearly overweighted by their professional colleagues. As we have already indicated, John Kirkby ceased to have responsibility for the business of parliament in 1289 or at latest early in 1290. He was succeeded by Gilbert of Rothbury,8 a common lawyer whose earlier career is, for us, entirely obscure. So far as we know, Rothbury at no time attained to the influence exercised by John Kirkby, but he seems to have performed in relation to parliament substantially the same functions. With apparently no previous official experience he was appointed to the position of clerk of the council early in 1290 ; and this post he managed to combine with miscellaneous judicial duties until his elevation to the king's bench at Michaelmas 1295.9 Although he then ceased to act as clerk of the council, he continued to be responsible for the business of parliament for many years. Before we deal with Rothbury's parliamentary activities it 1

Foss, Judges, Hi. 123, 146. 2 Ibid. 121 f. ' Ibid. 136 f. Cal. of Pat. Rolls, 1272-81, p. 226. 5 Foss, Judges, iii. 138 f. ; Pari. Writs, i. 775 and references ; Diet. Nat. Biog., s.v.; Gal. of Pat. Rolls, Cal. of Close Rolls, passim. 6 Foss, Judges, iii. 150 f. ; Pari. Writs, i. 827 and references ; Diet. Nat. Biog., s.v ; Cal. of Pat. Soils, Col. of Close Soils, passim. 7 When John de Vesoy is sent on a diplomatic mission he may be called, like Anthony Bek, the king's familiaris et secretaries (Gal. of Pat. Soils, 1281-92, p. 11), but he is in no sense a trained official. 8 His name is occasionally spelled Routhebury (Coram Rege Rolls, no. 135, m. 17 ; no. 137, m. 24 ; no. 138, ram. 17 d, 35 d), but more usually Koubury, the normal contemporary form of Rothbury in Northumberland ; cf. Rot. Parí. i. 6, no. 27, Cal. of Close Rolls, 1279-88, p. 319, Cal. of Pat. Rolls, 1301-7, p. 321. He was perhaps related to Walter of Rothbury, constable of Norham at this period. 9 The earliest reference to his employment on judicial duties occurs in the Wardrobe Book for 18 Edward I (Chane. Miscellanea 4/5, fo. 24) : 'vj die August! domino Gilberto de Roubiry assignato per regem ad assisas capiendas post vltimum parliamentum Londoniarum in quibus partibus per quas rex transiuit, de prestito super expensis xl. s.' Thereafter he is frequently appointed on commissions of oyer and terminer ; Cal. of Pat. Rolls, 1281-92, pp. 407, 411, 445, 453 f., 457, 512 f., 516. 522; 1292-1301, 43 ff., 48, 108, 165. He is engaged in a quasi-judicial capacity from July to October 1294 admitting to mainprise criminals and accused men enlisting for service in Gascony (Roles Gascons, iii. 190 ff., 205, 238, 285). The first payment to him as justice of the king's bench was made as from the Michaelmas term 1295 under a writ of 1 December 1299 (Liberate Roll, no. 76, m. 9). He is obviously not yet a justice on 24 June 1295 (Pari. Writs, i. 29). It may be noted that some time before Easter 1297 and presumably after his elevation to the bench—for he is termed domini regis Anglie iusticiarius— he was employed by Hurnfrey de Bohun, earl of Hereford, to try eases of poaching in Essex (Harl. MS. no. 662, fo. 122). 4

VI 538 THE KING'S MINISTERS IN will be well to explain what we mean when we say that he was employed as clerk of the council. There were many clerks who could be called clerici de consilio ; in 1297, for example, there were eight.1 But Rothbury had duties more definite and personal than those of the clerks who were summoned with selected magnates, the justices, and others to take part in council deliberations. We may note, but without stressing the point, that Rothbury is called not only clericus de consilio but also clericus consilii,2 which may have a more particular significance. However, it is only by noting Rothbury's activities from 1290 to 1295 that we can understand what his position was. During these years he is quite clearly at least one of the principal channels by which instructions are conveyed from the council. In the Michaelmas term of 1291 Theobald of Verdun was arraigned before the king and council at Abergavenny and put himself upon the country : the record of the inquest, ' written and enrolled as it was pleaded before the king and bis council ', was taken to the king's bench court ' per manum Gilberti de Roubury '.3 Early in 1293, Rothbury wrote to the chancery giving instructions on behalf of the king that a general eyre should be held in Yorkshire on the quinzaine of Trinity.4 In July 1293 the king was at Canterbury and several cases were then heard before the council : we are told that all the writs and documents connected with one case were handed by Rothbury to specially appointed justices of oyer and terminer ; & and in another case he sends the record to the king's bench.6 Again, in 1294 Rothbury conveys the king's decision, this time by letter, after a special hearing before the council.7 The notes of warranty on the chancery rolls at this period provide similar evidence : time after time letters patent or close are issued on the information of Rothbury, the last on 25 August 1295.8 He is found also conPari. Writs, i. 55. Exch., Parliament and Council Proceedings (E. 175), roll no. 7, m. 5 ; see infra, 3 p. 540 n. 6. Rot. Parí. i. 81 f. 4 Ancient Correspondence, xvii. 129 : ' Suo domino cancellario suus clericus G. de Koubyry si placet salutem et quicquid potest obsequii et honoris. Quia voluntas domini régis est quod communis summonioio itmeris comitatus Eboracsire coram Hugone de Cressingham et sociis suis fiat in quindena sánete Trinitatis próxima futura, id vobis si placet significo vt breue domini regis vicecomiti comitatus predict! inde mandare faciatis.' For writ, dated 19 January 1293, see Cal. of Close Rolls, 128S-96, p. 310. 6 Rot. Parí., i. 126. Since the above was written we have satisfied ourselves, on the evidence of the proceedings recorded in Chano. Misc. 13/1/16, that the Easter parliament of 1293 was continued at Canterbury in July. 6 K.B. 27, no. 138 (Corain Rege Roll, Michaelmas 1293), m. 35 d : ' Recordum missnm de consilio domini regis per Gilbertum de Routhebir' clericum de consilio '. ' K.B. 27, no. 141 (Coram Rege Roll, Trinity 1294), m. 7 : this case, regarding the inheritance of John Pynkeny hanged for theft, comes ' coram conailio domini regis propter hoc per preceptum domini regis specialiter conuocato ', The king sends a letter ' de gracia sua speciali nunciante Gilberto de Robirs '. For this case, see also Rot. Parí. i. 130. 8 Gal. of Pat. Rolls, 1293-1301, pp. 58, 61, 79, 81 ff., 86, 106, 113 f., 142; Cal. of Close Rolls, 1288-96, pp. 287, 291, 342, 359, 367, 372, 292. It is not, however, in bis 1

1


VI 539

veying the decisions of the council in parliament1 as well as the decisions made at sessions of the council on other occasions ; but after 1295 notices of this kind cease. We may note that in 1298 he comes before the treasurer to testify to something that has happened in parliament in 1295.2 There is nothing, however, to suggest that after he had become a judge Rothbury continued to perform the kind of duties that he had rendered as clerk of the council.3 capacity as clerk of the council that he; warrants pardons to malefactors from July to October 1294 but as the justice who admitted them to mainprise (Rôles Gascons, iii. 190 ft. : supra, p. 537 n. 9). 1 He sends to the king's bench a record of proceedings in the Epiphany parliament of 1292 (Rot. Parí. i. 82 ; K.B. 27, no. 127, m. 54 d), the record and process in the Macduff case heard in the Michaelmas parliament of 1293 (Bot. Pari. i. 113 ; K.B. 27, no. 137, m. 9, no. 138, m. 39), and the pleadings before justices itinerant and in the Easter parliament of 1293 in an action brought by the king against the abbot of St. Albans in regard to Tyneinouth priory (K.B. 27, no. 136, m. 15 ; see also infra, p. 540 n. 5). The enrolment of a case in the Michaelmas parliament of 1293 is headed ' Petioio missa de consilio per Gilbertum de Robyry ' (K.B. 27, no. 138, m. 19 d.). Another case in this parliament is entered on the king's bench roll for the Easter term 1294 : the following are the relevant passages : ' Postea venit dominus Gilbertos de Roubyry in banco et dixit quod dominus rex remisit sub tenorc sequenti et inde fecit quendam bilettum. Postea dominus rex ad parliamentum suum post festum sancti Michaelis anno regni sui vicésimo secundo de gracia sua special! . . . perdonauit pro se et heredibus suis predictis Willclmo de Northeleye et alus sectam pacis sue.' (K.B. 27, no. 140, m. 1C, 16 d). Similar entries will be found in the memoranda rolls of the exchequer. L.T.R. Mem. Roll, 24 Edw. I (E. 368/67), m. 17 : ' Postea recítalo recordó Ulo coram rege et consilio in pleno parliamento (August 1295) dictum est dicto Nicholao de Youkefiet quod adeat scaccarium et faciat fiiiem cum rege pro transgressions quam fecit ingrediendo in feodum regis sine licencia vt predictum est. Et Gilbertus de Roubiri clericus regis misit recordum ilium, ad scaccarium sub sigillo suo pro fine capiendo.' L.T.R. Mem. Roll, 22 Edw. I (E. 368/65), in. 29 : ' Postea predict) hurgenses Noui Castri super Tynam dominum regem a ppropinq liantes in parliaincnto suo Londoniarum post natale domini anno &c. xxij° petierunt gracíam guaní . . . propter quod dominus rex, graciam suam eis faceré volons in hac parte, mandauit eisdem thesaurario et baronibus per Gilbertum de Robir' nlericnm suum quod . . . libertatcm illam eis restituèrent.' [We may note a singular mistake in this latter record : the burgesses had their liberties confirmed on 8 December 1293 (Cal. of Charter Rolls, ii. 434) and the parliament in question clearly met before that date. Nor is there any trace of a parliament between that of Michaelmas 1293 and Easter 1294 (Bull. Intst. Hist. Research, v. 152 f.]. L.T.R.. Mem. Roll, 26 Edw. I (E. 808/69), m. 50 : ' Rex nuper in parliamento suo habito apud Westmonasterium anno regni sui xxiij 0 concessit ciuibus predictis [of Norwich] quod haberc posscnt in chútate predicta statutum de Acton' Burnel pro mercatoribus ad recogniciones debitorum cditum ct sigillum secundum formam statuti illius . . . dilectus et fidelis régis G. de Robur' clericus ad peticiones in dicto pariiamento recipiendas deputatiis, ex mandato regis tune veniens hic, ex parte ipsius régis exposuit venerabili patri W. Bathoniensi et Wellensi episcopo tune thesaurario concessionem predictam.' 2 As appears from a postea to the last-cited entry in the, preceding note : ' Predictus Gilbertus modo vnus iusticiarius ad placita regis &c., coram thesaurario constitutus, recordatua est regem concessise ciuibus predictis habere statutum in forma predicta et sigilla ad hoc ordinari '. 3 It is worth while remarking that before 1295 there is a certain admixture of parliamentary and council proceedings in the Exchequer Parliament Rolls (Bull. Inst. Hist. Research, vi. 147 f.). The fragmentary nature of the surviving parliamentary and council records forbids us to conclude that this intermixture is necessarily the result of combining the post of clerk of the council and clerk of parliament. Such an admixture occurs again in 1315-16 (ibid. p. 151).

VI 540 THE KING'S MINISTERS IN Now many ministers from time to time attend the king and may convey his commands, but there is none other who during the years 1290 to 1295 seems to perform the functions that fall to Rothbury, none other who seems so closely attached to the king.1 He is certainly, so far as we have been able to discover, quite singular among the clerici de consilio? But beyond his duties as clerk of the council, he appears to have had certain special duties in relation to parliament, and to these we now turn, We have already noted that the year 1290 marks a new departure in parliamentary history. The regular system of Easter and Michaelmas parliaments which is a noteworthy feature of the earlier part of the reign is now, after a brief attempt at sustaining it, abandoned.3 But the keeping of parliamentary records seems to show a pronounced improvement, for we can hardly suppose that the rolls that have come down to us from 1290 onwards, defective as they are, owe their survival to mere chance. There is, we suspect, a definite attempt at reform in this particular, as there seems to have been simultaneously in record-keeping in other branches of the king's administration.4 Now it is clear that Gilbert of Rothbury had some responsibility for parliament rolls from the Easter term and perhaps from the Hilary term of 1290 onwards. In 1293 there is before the king's bench ' a record from the rolls of Gilbert of Rothbury of the parliament of Hilary and Easter ' of Edward's eighteenth year.5 Two or three years later we hear of the ' rotuli de consilio domini régis Edwardi de parliamento suo de anno regni sui décimo octano ' which are in the wardrobe and of which Gilbert of Rothbury, who was at that time ' clericus consilii sui ', has a transcript.6 The entries in question we have no difficulty in identifying on the existing Exchequer Parliament Roll, no. 1, the first ten membranes of which appear to be unquestionably the council roll of the Easter parliament of 1290.7 Similar Cf. Chane. Misc. 4/5, fo. 24 : supra, p. 537 n. 9. In December 1292 he is one of the witnesses to Balliol's act of homage (Foedera, i. 782). Note also that while the council is in session at Canterbury in July 1293 mainprise is taken before the steward and marshal of the household (Walter Beauchamp and Fulk de Vaux) and Rothbury (Sot. Parí., i. 98). As to this meeting see supra, p. 538, u. 5. 2 That he was known to be in an exceptional position to influence proceedings before the council appears incidentally in an action in the Justiciaras court in Ireland some years later (Gal. of Justiciary Rolls, Ireland (23-31 Edw. I), p. 255 f.). 3 4 Bull. Inst. Hist. Research, v. 133 ff., 140. Ibid. vi. 139. 6 Corara Rege Roll (K.B. 27) no. 135 (Hilary 1293), ni. 17 : see Bull. Inst. Hist. Research, vi. 136 n. 1. 6 Exch. Parliament and Council Proceedings (E. 175), roll no. 7 : see Bull. Inst. Hist. Research, vi. 135, n. 5. Since William of Valence is concerned in the matter the date cannot be later than the very early days of 1290 ; he is about to cross overseas on 26 December 1295 (Cal. of Pal. Rolls, 1292-1301, p. 177) and he is dead before 24 May following (Cat. Inquisitions Post Mortem, iii. 220), probably early in the month (cf. Cal. Chancery Warrants, i. (Í9). 13 June, the received date for his death, is clearlyimpossible. 7 Bull. Inst. Hist. Research, vi. 146. No separate roll for the Hilary parliament 1


VI 541

references enable us to connect Rothbury with rolls of the parliaments of Epiphany 1292, Lent 1300, Midsummer 1302, and of Lent and Autumn 1305.1 The frequent consultation of parliament rolls in his keeping from 1293 to 1314, the common knowledge that they were in his care, suggests that he was the official custodian of a series of rolls for all Edward I's parliaments from 1290 onwards.2 More than this, we know that Rothbury was responsible for seeing that the rolls were written up. Thus the bishop of Chichester at the parliament of Hilary 1301 refers to an adjournment which at the previous parliament ' sire Gilbert de Roubiri fit arouller en son roule par comaundement '. 3 ' The rolls of Gilbert of Rothbury ' must then mean the rolls that he wrote or caused to be written, and these rolls were, so far as we can identify them, rolls of the proceedings of the council in parliament. We should note further that in 1295 the sheriff of Gloucester caused to be returned to Rothbury a writ of election for the November parliament of that year : 4 this we may reasonably regard as evidence that he was responsible for recording the attendance of those summoned to parliament.5 It is also worth observing that in the Lent parliament of 1305 it is Rothbury who delivers to John of Eenstead, controller of the wardrobe, to the chancery, the benches, and the exchequer, the documents in the Segrave case.8 can be distinguished : all the Hilary business upon this roll appears to be brought up to tiie Easter parliament on adjournment. It is possible that John Kirkby was still clerk of the parliament in the Hilaryterm 1290 (.s'Mpra, p.534). Note,too, that on 31 December ]298 the king writes to Rothbury inquiring about a certain ordinance de quo waranto alleged to have been made in the Easter parliament 1290 (i.e. that to be found in Rot. Parí. i. 36 f.). Rothbury sends a transcript. He also adds this piece of advice which is sufficiently remarkable to deserve reproduction : 'Ista est ordinacio facta. Et iuxta ordinacionem ¡stam videtur I. de Metingham et omnibus sociis et niichi quod omnia placita de quo waranto debent plaeitari et terminan coram iusticiariis itinerantibua in itineribus suis et non alibi. Kt bonum est quod rex teneat graciarn concessam et promissionem factam populo. Hoc est auisamentum nostrum.' (Chancery Warrants 1538/3 and 4). A further reference to Exchequer Parliament Roll, no. 1, as being in Rothbury's keeping will be found in the reply to a petition in the Lenten parliament of 1305 (Memoranda de Parliament, p. 97 ; cf. Rot. Parí. i. 26 ff.). 1 For the roil of 1292, see Year Book 7 Edward II (Seiden Soc.), p. 127 f. and compare Hot. Parí. i. 79. Dr. Bolland blundered badly in his explanation of this very interesting contemporary reference to Rothbnry's rolls (Year Book S Edward 11, p. xv ; Butt. Inst. Hist. Research, vi. 136 f.). For the roll of 1300 see L.T.R. Mem. Roll 29 Kdw. I (E. 368/72), m. 32 d.; infra, n. 3. For the roll of 1302 see Liber Oustumarum (Rolls Series), p. 112. For the roll of Lent 1305 see Bull. Inst. Hist. Research, vi. 136, n. 7; for that of Autumn 1305 see Cal. ojChancery Warrants, i. 332 f., Rot. Parí. i. 183 ff. 2 Cf. Bull. Inst. Hist. Research, vi. 135 ff. 3 L.T.R. Mem. Roll, 29 Edw. I (E. 368/72), m. 32 d. * Pari. Writs, i. 38. 6 For these records see Bull. Inst. Hist. Research, vi. 141, n. 2. As we shall see, a similar return was made personally to William Airmyn in 1322. 8 Memoranda de. Parliamento, p. 262. We do not, however, stress this or suggest that such a duty fell invariably upon the clerk of the parliament : other ministers might be responsible for delivering parliamentary records into safe custody. In the Kaster parliament, 1290, for example, John of Berwick delivers to Walter of Langton, clerk

VI 542 THE KING'S MINISTERS IN

The evidence we have assembled of liothbury's activities is therefore, we submit, hardly capable of more than one interpretation. From 1290 until his elevation to the bench in 1295 he served as clerk of the council ; at the same time he acted as clerk of the parliament and continued so to act, after he had ceased to be clerk of the council, until the end of the reign. Turning now to those tribunals which were responsible for examining and expediting petitions, we iind in the latter half of the reign of Edward I an organization similar to that which we have already noticed for the earlier part of the reign : if it strikes us as a little more elaborate, that may be by reason of the paucity of records for the earlier period, although we think that the work of parliament is tending not only to grow in bulk and therefore to necessitate subdivision, but also to be treated under increasingly technical forms as the strong professional element gains experience. In 1293 an order is issued concerning parliamentary petitions very similar to that of 1280.1 As soon as petitions are received they are to be sorted into five categories : those for the chancery, for the exchequer, and for the justices, those that ought to go before the king and council, and those that have been answered at a previous parliament. Full information is to be got together regarding any petition before it is brought before the king for decision.2 This order merely gives us a hint that there are three stages through which a pf jition must pass : there is the preliminary examination by the tr'xsrs or auditors, and then the deliberation of the council upon ^hose finally remitted for expedition before the king. But parliamentary organization was more complex than this might suggest. We know that certainly as early as 1290 there were separate panels of auditors for petitions from England, Ireland, and Gascony.3 It would seem also that in the Easter parliament of the wardrobe, a roll containing the agreement between the university and town of Oxford (Hot. Purl., i. 33, no. 22). Again, Peter of Chainpvent hands into the wardrobe the rolls of Irish petitions of the parliaments of Hilary and Easter 12UO, but this is in his eapaeity as one of the triers (Cole, JJocument« illustrative of English history, p. 82). 1 Ryley, Plácito, Parlamentaria, p. 459, from Close Roll ; Cal. nf Close Kolls, 1288-96, p. 289. a This is, we think, the meaning of the concluding sentence : 'Et ensi seient les choses reportées devant le rey devant ceo qe il les comencé a délivrer.' Reporter muai here be taken in the sense of rapporter : as we shall see, it is used elsewhere in this sense. Dr. Ehrlieh's suggestions for rendering this passage ( I'roccedimjs against the Cruwn, p. 'JO) do not commend themselves to us. In February 1305 the king instructs the council in London that those petitions which cannot be ' delivered ' without him are to await his rrival at the Lenten parliament ; he continues ' et celes facez bien trier et examiner et mettre en bon array ' (Chancery Warrants 53/5274 ; for Maitland's translation of this document, see Memoranda de Piirliiimento, p. Ivii). 3 Por the English triers we have the evidence of the separate roll of English petitions of Easter 1290, now forming part of Exchequer Parliament Roll, no. 2 (Bull.Inst. Hist. Research, vi. 14(i) ; for the Irish triers we have the evidence of the rolls of petitions of both the Hilary and Easter parliaments of 129Ü (Cole, Documents illustrative of Knalùh


VI 543

of 1290 there was a tribunal similar to the French chambre des enquêtes, for which a roll survives.1 However, this tribunal was probably soon suppressed, for we find no further trace of it when later we again get comparatively full details of the parliamentary tribunals, notably in 1305. In this year we find a body of receivers of petitions, and four separate tribunals for trying the petitions from England, Scotland, Gascony, and Ireland and the Channel Islands.2 Of receivers of petitions we can recover the names of four. John of Caen appears to have been a receiver in 1293,3 Gilbert of Bothbury in 1295,4 and these with another John of Kirby and John Bush were receivers in the two parliaments of 1305.5 The receivers, we think, acted from parliament to parliament over a long series of years.6 Of auditors of petitions we know the names History, pp. 55 ff., 68 ff.); a file of Gascon petitions of 1290 seems still to have existed in the eighteenth century (Champollion-Figeac, Lettres de Bois, i. 370). 1 Bull. Inst. Rist. Research, vi. 134, 147. For some indication that this procedure continued in force for a few years, see infra, n. 6. 2 Memoranda de Parliaments, pp. 3 f. : cf. Introduction, pp. Ivii. ff. We venture to differ from Maitland regarding the auditors of English petitions, but as to this, see infra, p. 545. 3 On 29 July 1293 the chancellor is required to send to the king all petitions relating to the late queen Eleanor which remained in his keeping after the close of the Easter parliament ; similar injunctions are given in respect of such petitions which have remained ' penes dilectum clericum nostrum lohannem de Cadamo ', i.e. which have not been officially remitted to the chancery (Chancery, Parliament, and Council Proceedings, 44/12). Note, too, that he is mentioned in connexion with the enrolment on the Coram Rege Roll of a case in this same Easter parliament ; K.B. 27/136, m. 15 : 'istairrotulaciofactafuit perdominum regem referentibiis Waltero de Langeton thesaurario domini regis, Gilberto de Kobirs et magistro Johanne de Cadamo clericis de consilio regis '. A subsequent alteration has cancelled the names of the treasurer and John of Caen. 4 L.T.R. Mem. Roll 26 Edw. I (E. 368/69), m. 50 : supra, p. 539 n. 1. 6 Memoranda de Parliamento, p. 3 ; Pari. Writ's, i. 160, from Close Roll (Cal. of Close Rolls, 1302-7, p. 345). It seems, from the reference to ' Mestre lohan de Chaam e ses compagnons, recevors de biles ' in two petitions of the Autumn parliament, as though John of Caen was the senior receiver (Rot. Parí. i. 474 (nos. 83, 84) ; cf. Cal. of Close, Rolls, 1302-7, pp. 296, 361). Possibly Rothbury did not act on this occasion, although nominated. See also L.T.R. Mem. Roll 34 Edw. I (E. 368/76), m. 8 d., where, referring to the Autumn parliament, Kirby is stated to be ' clericus regis ad peticiones in parliamento libéralas recipiendas assignatus ' ; this case incidentally seems to make it clear that it was the duty of receivers of petitions to deliver them when required to the appropriate courts. 6 From a petition presented in the Autumn parliament of 1305, it appears that John Bush had retained a file of petitions presented in an earlier parliament, not, it would seem, the Lenten parliament of that year, since there is no reference to the subject matter in the Memoranda (Rot. Parí. i. 479 (nos. 109, 110) ; Cal. of Pat. Rolls, 1301-7, pp. 393 f. ; cf. Cal. of Charter Rolls, ii. 330 f.). The reference to ' alia petitio in manu G. de Roubiry ' (Memoranda dt Parliamento, p. 85 (no. 141)) suggests that he also retained petitions presented in earlier parliaments. We have in fact three petitions which bear endorsements indicating that on sundry occasions he handed files of petitions into the exchequer (Ancient Petitions, E. 21, E. 40) and the chancery (Ancient Petition, no. 12837). On another occasion ( 1294-5) he is said to have in his custody the ' inquisiciones que remanserunt in alio parliamento non responsas ' (Ancient Petition, no. 8886 : the date is indicated by the original inquisition in question, see Sweetman, Cal. of Documents, Ireland, 1293-1301, p. 51 (no. 104)); these inquisitions were, we think,

VI 544 THE KING'S MINISTERS IN of the Irish panel of Easter 12901 and of the four separate panels of Lent 1305.2 If, as is probable, we may regard the Irish auditors of 1290 and the receivers of 1293 and 1295 as equally with the receivers and auditors of 1305 representative of these officials over the whole period, we cannot fail to be struck by the very high proportion of ministers and professional lawyers among them. The only three barons are the earl of Lincoln, Aymer of Valence, and John of Brittany, who serve on the Gascon panel of auditors in Lent 1305.3 But the hearing of Gascon petitions is not a task quite comparable to that of hearing petitions from other lands of the king's obedience : appeals from Gascony on points of law have a habit of going to Paris.4 What manner of men then were those who for the most part acted as receivers and auditors of petitions ? Of Rothbury we have already said sufficient. In 1305 John of Caen is a chancery clerk of standing and has been the chancellor's ' lieutenant ' ; 5 on the evidence of Exchequer Parliament Roll, no. 2, mm. 8-10, treated very much like petitions (Bull. Inst. Hist. Research, vi. 147). Altogether the evidence for the continued employment of certain ministers as receivers of petitions seems sufficiently strong. 1 Cole, Documents, pp. 68, 82. s Memoranda de Parliamento, pp. 3 f. s Ibid. pp. 3 f ; cf. Introduction, pp. Iviii f. 4 Cf. Gavrilovitch, Etude sur le traité de Paris de 1259, pp. 84 ff. The English king sought in various ways to discourage appeals to the parliament of Paris ; but there was no effective means of preventing appeals to the court of France until after the outbreak of the Hundred Years' war. 6 We must distinguish between master John of Caen and master John Arthur (Erturi) of Caen : there was a third John of Caen, the king's cementarius, killed at Bannockburn (Wardrobe Book, 8 Edward II (E. 101/376/7), f. 4 b), but he does not concern us. Master John of Caen was employed in the chancery ; master John Arthur of Caen, also simply called John of Caen, was employed in the household. Both were apostolic notaries and, by a lucky chance, both were present at the Lenten parliament of 1305 on an occasion when it was necessary to distinguish them (Memoranda de Parliamento, p. 300) ; nevertheless the two men were confounded by Maitland (ibid. p. Ivii), as they had been by Sir Francis Palgrave (Documents illustrating the History of Scotland, f f . l i v t.). The John of Caen whose name appears frequently in the chancery rolls of Edward I is almost always the chancery clerk ; from 1298 he is sufficiently senior to have custody of the seal (cf. Cal. of Pat. Rolls, 1292-1301, pp. 352, 393, 1301-7, 91, 518 ; Cal. of Close Rolls, 1296-1302, pp. 222, 230, 295, 601 f., 610, 1302-7, 437, 453). In 1298 and in 1302 he is called the chancellor's lieutenant (Col. of Chancery Warrant», i. 100 ; Madox, History of the Exchequer, i. 421 n. ; Maxwell Lyte, Great Seal, p. 142). He is summoned regularly to parliament with the judges and masters from 1300 (Pari. Writs, i. 83, 113,138, 182,184). He seems already to have had some status in the chancery in 1276 (Cal. of Close Rolls, 1272-9, p. 417). John Arthur of Caen we can trace back to 1268, when he is attached to archbishop Boniface in the character of a notary (Register of Archbishop Walter Giffard (Surtees Soc.), p. 142). He was with the king in Spain and Gascony in 1288 (Foedera, i. 685, 688 ff.). It was, we think, this John of Caen who, having already begun his career in the royal household, received a legacy from Queen Eleanor in 1292(Botfield, Manners and Household Expenses (Roxburghe Club), p. 96). He had much to do with the Great Cause : he was at Norham in June and at Berwick in August 1291, and subsequently was responsible for writing the great roll (Palgrave, Documents, Illustrations, pp. vi, xvi, Text, pp. 298 S., Foedera, i. 784 ; cf. Stevenson, Documents Illustrative of the History of Scotland, ii. 59 n.). He appears in the wardrobe accounts as entitled to robes from 1290 to 1301


VI 545

John of Kirby is a remembrancer of the exchequer ;1 John Bush is a clerk of the household and, like John of Caen, he is an apostolic notary.2 Every branch of the administration is therefore represented upon the tribunal which has the duty of first examining and sorting out the petitions received in parliament. These four receivers proceeded in Lent 1305 to act also as auditors of the English petitions, a task for which they were obviously competent.3 On the Gascon panel for that parliament we find, beside the treasurer, John of Havering who has been justice of North Wales and has performed much judicial work and who is about to be sent to Gascony as seneschal, John of Sandale, a royal clerk with Gascon experience, and three Gascons, one of whom is doctor titriusque iuris and the two others experienced administrators ; * despite the three barons this panel is also highly professional. On the Scottish panel in the same parliament are two itinerant justices and three royal clerks who have been serving the (Add. MSS., no. 7965, fos. 123, 129 ; no. 7966A, fos. 136, 140 ; Liber Quotidianus Conlrarotulatoris Garderobae, pp. 314, 327). He is mentioned as a member of the household in 1303 (Cal. of Close Rolls, 1302-7, p. 81) : he is not, however, and presumably could not have been, concerned with passing letters for the great seal, as suggested by Sir H. Maxwell Lyte, who confuses him with the chancery clerk (Great Seal, p. 360). 1 L.T.R. Mem. Roll 22 Edw. I (E. 368/65), m. 0; Madox, History of the Exchequer, i. 657, n. 2 There seems to be no evidence that he was a chancery clerk, as Maitland stated (Memoranda de Parliamento, p. Ivii). He is entitled to robes as a household clerk in 1299-1300 and 1303-4 (Liber Quotidianus, pp. 314, 327; Add. MS. no. 8835, fos. 112, 117). Previously he had been on the king's service in Scotland (Palgrave, Documents, p. 163 ; Stevenson, Documents, ii. 77, 289) and in France (Bain, Cal. of Scottish Documents, ii. 254). In 1300 and 1301 he is in close attendance on the king, employed on papal and Scottish business (Caí. of Chancery Warrants, i. 108 f., 119 f., 126 ; cf. Cal. of Cióse Bolls, 1302-7, p. 66). He acts as notary throughout this period (Foedera, i. 897, 916, 966, 1001 ; Memoranda de Parliamento, p. 300). 8 Maitland took another view (Memoranda, p. lx) : but the plain meaning of the account given on the parliament roll (ibid. pp. 3 f.) is that the receivers retained all the petitions they did not hand to the Scottish, Gascon, and Irish panels. We see no reason to suppose that they were assisted by the chancellor, treasurer, or other members of the council, as Dr. Ehrlich suggests (Proceedings against the Crown, p. 100). Whether the arrangement in the Lenten parliament followed precedent, there is insufficient evidence to tell. * Maitland, Memoranda, pp. lviiif.,328 ff. As to Havering's earlier employments see Pari. Writs, i. 661 and references ; Cal. of Chancery Rolls (Various), pp. 284, 293, 303, 305, 311, 318. We are doubtful whether Sandale in fact acted on the Gascon panel ; it is practically certain that he acted on the Scottish panel. The proof is afforded by a Scottish petition presented at the Autumn parliament of this year which is endorsed : ' Mandetur dominis lacobo de Dalile at lohanni de Sendale quod venire faciant responsiones petitionum Scotie ultimi parleamenti ' (Memoranda de, Parliamento, p. 190, no. 312 ; cf. Bull. Inst. Hist. Research, vi. 149). James of Dalilegh was a member of the Scottish panel in the Lenten parliament, and although Sandale had Gascon experience and may have been nominated to the Gascon panel, he was, as Maitland pointed out, actually chamberlain of Scotland. He would hardly have had any responsibility for the Scottish petitions, whether filed or enrolled, unless he had actually helped to try them. It will, of course, be remembered that triers for Scottish petitions would not be required at any earlier parliament than that of Lent 1305, unless it were the St. Edmund's parliament of November 1290 (see ' The Scottish Parliaments of Edward I ' in Scottish Historical Review, xxv. 310 ff.).

VI 546

s IN THE KINGG'S MINISTERS

king in Scotland.1 We can compare the Irish panel of Lent 1305 with that of Easter 1290. On the earlier occasion it is composed of three members : of these Stephen of Penchester is warden of the Cinque Ports and has done judicial work in parliament before ; 2 Peter of Champvent is steward of the household, but he has also acted as justice of oyer and terminer ; 3 Robert of Hertford is a justice of the common bench.4 On the later occasion the panel is composed of five members. Of these, John of Berwick has been employed as a wardrobe clerk and was specially attached to Queen Eleanor,5 whose executor he is ; 6 he seems earlier to have acted as clerk to justices in eyre,7 and later he has certainly often served as an itinerant justice.8 Of the remaining four, Harvey of Stanton and William Mortimer have both been employed as itinerant justices ; Roger Beaufou is also a lawyer and justice.9 William Dene, who is named third on the panel, is a knight who has often been employed on commissions of oyer and terminer10 and has more than once been to Rome on missions for the king ; u he is soon to be for a short time seneschal of Agenais.12 Of the day-to-day procedure of the highest tribunal of all in parliament, our knowledge at this time is fragmentary ; but we do not think that when ordinary cases come for hearing before the council the tribunal is a very large one. Even when the king himself is present there may be no more than four counsellors with him. Thus in the Easter parliament of 1290 we find the king sitting with William of Valence, his uncle, Robert Tiptoft, justice of West Wales, William Latimer, a baron, and John of Berwick, a wardrobe clerk, to hear an action against the Franciscans of Yarmouth. The action is compromised at the instance of the king and his counsellors, who together subscribe ten pounds to satisfy Maitland, Memoranda, pp. lix f. ; and see preceding note. Col. of Pat. Rolls, 1281-92, passim ; supra, pp. 535, 537. 8 Tout, Chapters in Mediaeval Administrative History, ii. 26. For his employment on judicial business, see Cal. of Pat. Rolls, 1281-92, pp. 323, 331 f. 4 Appointed 15 January 1290 (Cal. of Pat. Rolls, 1281-92, p. 336). 5 Col of Pat. Rolls, 1281-92, pp. 173, 176 ; Tout, Chapters, ii. 42, n., 83, n. 6 Cal. of Close Rolls, 1288-96, pp. 203, 261 ; Cal. of Chancery Warrants, i. 152 ; Cole, Documents Illustrative of English History, p. 33. Most of the work of the executors is done, and the accounts prepared, by his clerks (Botfield, Manners and Household Expenses, pp. 95 ff. ; cf. Cal. of Close Rolls, 1288-96, p. 3). 7 Gal. of Pat. Rolls, 1272-81, pp. 378, 404 ; 1281-92, pp. 131, 323. 8 From 1292 onwards : see Cal. of Pat. Rolls, 1281-92, pp. 485, 507 et passim, also Cal. of Chancery Warrants, i. 34, 36, 64. He was engaged at Norham during the Great Cause in June 1291 (Foedera, i. 766 ; Palgrave, Documents, Illustrations, pp. iv, vi). He was in orders and succeeded the elder John Kirkby as dean of Wimborne ; he held besides a prebend at York and other benefices. He owned a good deal of property, which was inherited by his sister's son (Hutchins, History of Dorset, i. 393, iii. 186 ; Cal. of Inquisitions Post Mortem, v. 218 ff. ; Gal. of Chancery Warrants, i. 428). 9 For these three see Maitland. Memoranda de Parliamento, pp. lix, xcviii ff. 10 Gal. of Pat. Rolls, 1292-1301, pp. 338, 377, 459, 462, 465, 468, 470 ff. 11 Ibid. p. 431, 1301-7, pp. 54, 62, 65 ; Foedera, i. 943. 12 Roles Gascons, iii. 449, 458, 473 ff. ; Gal. of Chancery Warrants, i. 275. 1

2


VI 547

the plaintiff's claim : the king gives five pounds, William of Valence and Tiptoft each two, and Latimer and Berwick each one pound.1 We could hardly hope to have a better illustration of the relative status of these councillors nor more precise proof of the fact that four only were sitting with the king. We have already seen that in 1280 a special committee was appointed to sit apart to hear an action that had come up to parliament.2 In 1290 John of Berwick seems to be sitting alone when a dispute between the university and town of Oxford is compromised ;3 in 1295 Gilbert of Rothbury likewise seems to be sitting alone to hear an action that had been specially referred to him ; 4 and, again, in 1307 the earl of Lincoln is appointed to hear and determine the petitions presented by John de Ferrers against the treasurer.5 In Lent 1305 the chief justice of the king's bench and Gilbert of Rothbury (now one of his fellows) appear to be sitting together as a committee of the council.6 On another occasion John of Berwick and Geoffrey of Hartlepool, a sergeant-at-law, are appointed to examine a matter brought up on petition and to report their findings to the council.7 A committee of a different sort is appointed in the Lenten parliament of 1305 to treat with an envoy of the duke of Brabant, to whom the king owes a large sum of money : this committee consists of the treasurer, the bishop of Durham, the earl of Lincoln, Aymer of Valence, John of Droxford, and John of Benstead, three magnates and three ministers, of whom two are wardrobe officials.8 It is, however, difficult to distinguish between the full council and a committee, if the king is not present ; and the king may withdraw himself to discuss certain matters in private while the 2 Rot. Par!., i. 33 (no. 23). supra, p. 535. Rot. Parí., i. 33 (no. 22) : he himself hands the record of the agreement to the clerk of the wardrobe for custody. 4 Ibid. i. 138 (no. 4). 5 K.B. 27/189 (Coram Rege Roll, Trinity 1307), m. 1 : ' Recordum rnissum de parliarnento apud Karliolum &c. Placita coram Henrico de Lacy comité Lincolnie assignato per dominum regem, nunciante domino filio regis Principi Wallie, ad peticiones lohannis de Ferraras porrectas in parliaments regis apud Karliolum in octabis sancti Hillarii anno regrii regis Edwardi filii regis Henrici tricésimo quinto audiendas et terminandas.' 6 Memoranda de Parliarnento, p. 168 (no. 267). 7 Ancient Petitions E. 633, D, E : 'lohannes de Eerewyk' et Galfridus de Hertelpol examinent negocium in peticione contentum et référant consilio quod inuenerint.' The date is uncertain. It cannot well be earlier than August 1302 when Hartlepool was appointed king's sergeant (Cal. of Close Rolls, 1296-1302, p. 594 ; cf. ibid., 1302-7, p. 263, Cal. of Pat. Rolls, 1301-7, p. 465). Further, the endorsement on E. 633E. contains a note of a decision made ' in parliarnento Westmonasterii in Quadragesima anno xxxiij", which seems earlier than the reference to Berwick and Hartlepool. The occasion seems most probably to Li; the Hilary parliament of 1307. 8 Memoranda de Parliament, pp. 287, 339 ff. Cf. Tout, Chapters in Mediaeval Administrative History, ii. 83. For Benstead, see the more recent information contained in C. L. Kingsford's paper contributed to Essays in History presented to R. L. Poole, pp. 332 ff. 1

3

VI 548 THE KING'S MINISTERS IN business of parliament proceeds and the council continues in session.1 In the Lenten parliament of 1305 we find the treasurer, the chief justice of the king's bench, John of Berwick, and some unnamed members of the council hearing the action that Agnes of Valence brings against John fitz Thomas.2 What looks like the same body admit Aymer of St. Amand and William of Montacute to mainprise, each on the security of six magnates ; these twelve magnates seem clearly not to form part of the tribunal, although for some purposes many, if not all of them, may have a place in the council.3 This takes place on 13 March ; on the 19th, Aymer's brother John is mainprised ' coram ipso domino rege et toto consilio '.4 How numerous the whole council was on this occasion we have no means of knowing. We have some idea of its size upon 5 April when the bishop of Byblos appears before the council : thirty-six councillors are named, besides four notaries, one at least of whom, John of Caen, has a good right to be considered a councillor ; and of the thirty-six, fifteen are king's clerks and justices while others are administrators in regular employment.5 There seems to be a larger assembly on 29 March when Nicholas Segrave appears ' in open parliament in the king's presence ' to answer for his misdeeds.6 But full meetings of all those summoned to parliament pass unnoticed ; they could have been little more than ceremonial. At this point we may break off and summarize what the records teach us of the effective personnel of Edward Fs parliaments. The men who arrange the business of each parliament and who compose its tribunals are, with few exceptions, men in the service of the king : predominantly they are clerks trained in the various branches of the king's administration and justices regularly employed on one of the benches or on eyre, but there are knights or lesser barons among them who are regularly employed by the king in positions of trust. Of the barons, in the sense in which the word is usually understood, magnates whose relation to the king is essentially feudal, whose appearance at parliament is by reason 1 The executors of John, late earl of Warenne, are allowed to sue his debtors in the exchequer, but it is only when the treasurer brings a message from the king that this becomes known to whoever is responsible for writing up the roll (Memoranda de ParliamcMto, p. 288). 2 Ibid. p. 242. 3 Ibid. p. 279 f. : we are told that the defendants are mainprised ' coram thesaurario, Rogero Brabazoun et alus de consilio regig '. 4 Ibid. p. 280. A councillor in parliament may act now as judge and again on behalf of one of the parties to an action. Thus Gilbert of Rothbury who, as we have noted, sits in the parliament of August 1295 to try an action, in the same parliament acts as one of the mainpernors of John fitz Philip of Daventry (Sot. Parí. i. 134 ; Cal. of Close Polls, 1288-S6, p. 424). 5 Memoranda de Parliamento, pp. 299 ff. For analysis see ibid. p. xliii : cf. Tout, Chapters in Mediaeval Administrative, History, ii. 83. 6 Memoranda de Parliamento, pp. 255 ff.


VI 549

of the suit they owe to the king's court, such men are employed but rarely in the normal work of parliament. In saying this we are not unmindful of the fact that the assent of the magnates or of the commune, may, on occasion, be required to taxation or to legislation, but neither taxation nor legislation is at this period normal parliamentary business ;1 nor again do there come with any frequency to parliament questions of war or peace or momentous issues of diplomacy in which the king will be ill-advised to proceed without the support of the magnates. If from time to time parliament wears unmistakably the aspect of the feudal court from which it has sprung—if homage is sometimes rendered in parliament, and rewards for services in war and royal marriages are sometimes discussed2—these incidents seem obviously to be survivals : parliament belongs both to a past age and a new. The clerks and judges and ministers who are employed on the various tribunals and committees in parliament are without doubt selected with care ; they seem, moreover, in large measure to perform the same functions from parliament to parliament. It will be noted that the chancery is not especially drawn upon to supply the personnel. John Kirkby, who has the principal responsibility for the ordering of parliamentary business up to the year 1290, is, to begin with, a prominent chancery clerk, but he does not hand over his responsibilities to another chancery clerk when he himself becomes treasurer. Gilbert of Rothbury, so far as we know, was never connected with the chancery at all : he seems first to be attached to the household, from which he speedily passes to the king's bench, and remains throughout responsible for parliamentary business. Rothbury's career, in particular, teaches us that, while the post of clerk to the council might be held with a post which we may call—to anticipate a later usage—clerk of the parliament, the two offices were distinct, and neither office was dependent upon the chancery. It is to be noted, too, that when early in 1305 the king is giving instructions for the ensuing Lenten parliament these are addressed not to the chancellor alone but equally to the treasurer, apparently as the chiefs of the council in London.3 1 Cf. Bull, Inst. Hist. Research, v. 132 ff. : see also Maitland's remarks on the business of the Lenten parliament of 1305 (Memoranda de Parliamento, pp. xlviii ff.). 2 Under Edward I homage is rendered in parliament not only by great men like Alexander III (Foedera, i. 563) but also by quite humble landowners (Coi. of Close Rolls, 1279-88, pp. 31, 218, 1288-96, p. 159 ; Cal. of Fine. Rolls, 1272-1307, pp. 168, 532) ; this practice is continued under Edward II (Bull. Inst. Hist. Research, vi. 71). In July 1304 at Stirling the English barons are asked to say how their services should be rewarded : they ' prièrent nostre seignur le roi qe oeste ordenance feust prendre délai iusqes a son prochein pallement d'Engleterre ' (Palgrave, Documents Illustrating the History of Scotland, p. 275). In 1323 it is proposed to obtain the consent of the prelates and magnates of the realm in parliament to the marriage of the king's son (Foedera, ii. 524 ; Cal. of Close Rolls, 1318-23, pp. 713 ff.). ä Chancery Warrants, 53/5274 : translated by Maitlaud, Memoranda de Parliamento, pp. Ivi f.

VI 550

THE KINGS MINISTERS

1272-1307

Another point it is well to stress is that, although experience of parliamentary business is evidently rated high, as well as experience in the various departments of government, the circumstances are all against the growth of a separate and specialized parliamentary corps of judges and clerks. In the second half of Edward I's reign parliaments are held intermittently at irregular intervals. A connexion between council and parliament might even in such circumstances have grown through a common staff ; a professional parliament might have formed itself round the professional element in the council. But no attempt was made to maintain the links which were provided for a short time by uniting in Rothbury the two offices of clerk of the council and clerk of the parliament, as they had, it would seem, previously been united for a short time in Kirkby. And although the professional element in parliament was drawn from the men who, some regularly, some occasionally, assisted at the council, parliamentary tribunals had no continuous existence and no fixed composition : even the clerks that served these tribunals were recruited ad hoc for each session.1 But if all this, in our eyes, seems to give to parliament something of the casual and the temporary, parliament in the days of Edward I had this virtue, that it was animated by men trained in English and Roman (or at least Canon) law, men who, when they gave a judgement or advised upon a decision, appreciated its legal and administrative consequences. Parliament was not dominated by amateur administrators and amateur jurists, by barons, knights, and burgesses. 1 This is a point to emphasize. Although certain clerks may fill the same office in parliament after parliament, no permanent offices, so far as we can tell, are created, no fee appears to be attached even to such an office as the clerk of the parliament. The directions of the king to the chancellor and the treasurer for the Lenten parliament of 1305, cited in the preceding note, seem to show conclusively that they were free to appoint whom they would to act as receivers, although naturally they chose experienced men.

NOTES Page 529, n.2 Above, I. 155ff. n.3 Above, V. 133ff. n.4 Below, XVI. 79ff.; XXI. 77 530, n.l Above,!. 166f. n.3 Above, V. 129ff.; below, XVI. 71ff. 531, n.2 Below, XVI. 129ff. 532, 11.2-7 Cf. Ancient Petitions, no. E.206: Iniunctum est baronibus de scaccario, presentibus in parliamento, quod videant convenciones et faciant quod de iure fuerit faciendum etc.; E.725: a plea in the exchequer at Easter 1292 was sent to

VI 551

n.l 533, n.2

534, n.l n.2 n.3 535, n.l n.4 536, n.l 537, n.8

n.9 539, n.l

n.3 540, n.3 n.4 n.5 n.6 n.7 541, n.l n.2 n.4

parliament, which was then in session. The petition is endorsed: Le resun pur quey le iugement fu respite iesqes au parlement si fu pur aver meillur avisement e counseil de iustices e de sages genz pur rendre le iugement. E ore sunt le tresorer e les baruns assez aviser de aler avaunt au iugement; L.T.R. Memoranda Roll, no. 72, m. 31: Memorandum quod inter peticiones hic ad scaccarium retornatas de parliamento régis (1302): one petition was discussed by the treasurer and barons and others of the council, but because some justices and members of the council were absent, the matter was adjourned to the next parliament for final discussion in the 'full' council of the long; K. R. Memoranda Roll, no. 75, m. 47d: a matter was postponed at Midsummer 1302 to Michaelmas because some barons of the exchequer were not at parliament, Above, V. 130. Cf. Ancient Correspondence, LXII. 24: an order to Kirkby to postpone a demand for £24 from John of Brittany 'usque ad proximum parliamentum'; King's Bench Rolls, nos. 68, m.4: Hengham, 'qui assignatus est ad iuratam illam capiendam per consilium regis, sicut Johannes de Kyrkeby nunciavit; 69, m. lid: Johannes de Kyrkeby mandat per consilium quod [pleas concerning the barons of the Cinque Ports were to be postponed until Michaelmas]; 88, m.l: judgement postponed 'eo quod lohannes de Kyrkeby mandavit iusticiariis hie quod intendit quod predicta custodia spectat ad dominum regem'. printed Rot. Pari. AnglieHact. Ined., p. 22f. Below, XVI. 154-5. Above, V. 142 Below, XVI. 154f.: printed op. cit., pp. 12-16. Below, XVI. 154: printedop, cit., p. 14. Cf. below, XIX. 154. See Graham Pollard, 'Medieval Loan Chests at Cambridge' in Bull. Inst. Hist. Research, xvii. 113ff. for light on Rothbury's early career and his connexion with the universities of Oxford and Cambridge. Cf. Sayles, Kings Bench, i. p. Ixf. Rex v. abbot of St. Albans: printed Sayles, op. cit., ii. 140: Rex v. William of Northleigh: printed Sayles, op. cit., iii. 17. For the reference to Bull. Inst. Hist. Research, see below, V. 152f. Below, XVI. 147f. Above, V. 133ff., 146. Below, XVI. 139. Below, XVI. 136, n.l. Below, XVI. 135, n.5. Below, XVI. 146. Below,XVI. 136. Below, XVI. 135ff. Among the writs of summons for the parliament of Carlisle in 1307 (below, XI. 425ff. is a list of payments, approved by the council, by four men charged with trespass and discharged in the king's bench (Exchequer, Pari, and Council Procs., 1/21, no.6). This list is to be found on King's Bench Roll, no. 185, m.35, where it is shown that the offence lay in excommunicating the prior of Durham and that the defendants appeared in

VI 552

542, 543,

544, 545,

546,

547,

549,

the Carlisle parliament. Did Rothbury as clerk of the parliament jot down a council decision and misplace the record among the writs of summons because they also were his business? n.5 Below, XVI. 141, n.2. n.3 Below, XVI. 146. n.l Below, XVI. 134,147. n.6 Cf. Ancient Petitions, no. 12837: endorsed 'Peticiones quibus est responsum. In cancellariam per manum Gilberti de Roubiry; E.21: endorsed 'Ad scaccarium et ibi audiatur. Has peticiones libera vit Gilbertus de Robiry ad scaccarium iii. die Novembris anno regni regis Edwardi xviii' (1290); E.40: endorsed 'Ad scaccarium. Per Roubiry'; E. 129: endorsed 'Per manum G. de Roubyri de parliamento apud Westmonasterium in octabis lohannis Baptiste anno xix' (1302); Ryley, Plácito, Parliamentaria, pp. 218-224: 'Et sciendum quod scriptum illus liberabatur ad scaccarium per manum G. de Roubir' die lune post festum Ascensionis Domini anno regni domini regis Edwardi tricésimo tercio' (1305). n.5 Cf. Below, XIII. 306n. n.2 Cf. B. L., Cotton MS. Vespasian E.xxii., f.45: a fee given to Master John Bush, king's clerk, by the abbot of Peterborough on taking an oath that he would promote the affairs and faithfully keep the 'secrets' of the abbey; Ancient Petition, no. 495: endorsed 'Videatur responsio facta ad istam peticionem in alio parliamento et prosequatur comes eandem peticionem versus I. Bush penes quern peticio sua tune porrecta residet (1305: cf. Cal. Patent Rolls, 1301-1307, p. 393). n.4 Below, XIX. 149; XIII. 310ff. 1.19 Cf. Ancient Petitions, no. 10983: a petition heard before the chancellor and the justices of the bench in the Midsummer parliament of 1302; E.55: a charter of Henry III 'examinatur per cartam sigillatam in parliamento Westmonasterii die lune próxima ante gulam Augusti anno regis Edwardi xxx (1301) in presencia lohannis de Langeton, cancellarii, Rogeri le Brabazon, Willelmi de Bereford, Gilberti de Roubir' et lohannis de Kyrkeby'; E.51: endorsed 'coram omnibus de consilio'. 1.22 Cf. Ancient Petitions, no. E.89: endorsed 'Coram rege et toto consilio quia tangit coronam et dignitatem domini regis'; E.885: endorsed 'Veniat coram rege ad proximum parliamentum et ipse ordinabit de ista peticione quod de iure debebit, et veniat ibidem abbas Westmonasterii quia consilium regis non potest nunc super hoc remedium ordinäre sine rege'. 1.1 For five read four. n. 1 L. T. R. Memoranda Roll, no. 65, m. 21: the king during the Easter parliament of 1293 sent instructions 'nunciante Roberto Tibetot et alus fidelibus regis' to the exchequer concerning the earl of Norfolk's debts; Ancient Petition no. E.633 D: le quel record e proces ele ad fet venir e lad livere au conseil le roi, eest assaver, au darrein parlement a sire lohan de Berewik. For instructions given by the king in person see B. L., Cotton MS. Cleopatra, C. vii., f. 15b; King's Bench Roll, no. 182, m. 48: Rot. Pari., l. 187. n.5 Printed Sayles, op. cit., iii. 175. n.l Above, V. 132ff. n.2 Below, XVI. 71

VII

The Sources of Two Revisions of the Statute of Gloucester, 1278 IT has of late become increasingly clear that the early statutes were often drawn with such a surprising clumsiness that in many cases they failed to provide for technical difficulties that would inevitably arise.1 Particularly ill-devised were the ' statutes, ordinances, and purveyances ' promulgated in the parliament at Gloucester on 7 August 1278,2 for almost immediately certain reforms which they initiated had to receive supplementary Plucknett, Statutes and their Interpretation in the Fourteenth Century. Statutes of the Realm, i. 45-50. Though neither the preamble nor the final clauses of the statute contain any mention of parliament, it was undoubtedly a parliamentary enactment (Bulletin of Institute of Historical Research, v. 138 f.)1 2

VII 468 THE SOURCES OF TWO REVISIONS OF 'explanations ', whilst nearly three years later, on 10 June 1281, yet another chapter was ' corrected ' by the king and council.1 The text is printed below of two documents which have long lain hidden amongst those somewhat anomalous classes of records at the Public Record Office known as Ancient Correspondence and Ancient Petitions : they indicate the parties interested by, and the actual reasons for, these later emendations, and they throw an interesting light upon the question of the judicial interpretation of statutes. The first chapter of the statute of Gloucester provided that henceforward the injured parties in possessory assizes should be allowed damages as well as the recovery of their lands. With regard to the assize of mort dancestor in particular, this had previously been permitted only in cases where the chief lord of the fee happened to be the disseisor ; 2 damages could now be obtained against all disseisors. The wording of this enactment, however, was not sufficiently precise to avoid one difficulty which came to the forefront at once. When Henry de Percy, tenant in chief, died in 1272,3 leaving a minor as his heir, Henry III bestowed the wardship of his lands upon his own wife, Eleanor of Provence, for the maintenance of her household at such times as she did not stay with the king.4 A few weeks later, the escheator beyond Trent was ordered to extend these lands, assign dower to Eleanor the widow, and deliver custody of the rest to the queen.5 But afterwards the question arose whether Eleanor de Percy was rightly in possession of an annual rent of twenty-two pounds in Topcliffe ' and Wilton in Cleveland, which it was asserted had belonged to her husband on the day of his death. It had not been included in the extent already made, on the ground that Eleanor was enfeoffed of it.7 Accordingly John de Percy, the son and heir, brought an assize of mort dancestor against his mother. As he was a minor and therefore legally unable to appoint an attorney,8 he appeared in person before the king, and Richard de Dyve and Peter of Topcliffe were on 2 May 1278 appointed as his guardians for the purpose of the action.9 It was heard 1 Statutes of the Realm, i. 52; see Richardson and Sayles, The Early Statutes, pp. 26, 30. Cf. -Roí. Pari, i. 3366 : it was found impossible to answer a. petition ' sine explanaoione statuti predicti '. 2 Statute of Marlborough, c. 16 (Statutes of the Realm, i. 23 f.). 3 G. E. C[ockayne], Complete Peerage, vi. 228. 4 Gal. Patent Rails, 1266-72, p. 682 ; ibid. 1281-92, p. 175. This presumably is the arrangement made by the king and council which is referred to in Gal. Close Rolls, 1272-9, p. 2. = Ibid. pp. 1, 2. 6 Topcliffe was the chief seat of the Percies in the North Hiding. 7 Cal. Close Rolls, 1272-9, p. 1. 8 Pollock and Maitland, History of English Law, ii. 440. 9 Cal. Close Rolls, 1272-9, p. 495.

THE STATUTE

OF GLOUCESTER, 1278 VII 469

at once before the justices holding assizes in Yorkshire, but before any evidence on the facts was received, Eleanor de Percy asked that the assize might be respited until she could discuss the matter with Eleanor, the queen-mother : the request was granted and the parties were adjourned until 9 June 1278.1 The assize must actually have been taken some time, but not long, after 7 August 1278, for the queen-mother, an obviously interested party in view of her temporary custody of the young heir and his lands, wrote to inform Robert Burnell, the chancellor, that the annual rent of twenty-two pounds had been recovered, along with damages adjudged ' per statutum domini regis quod nuper fecit apud Glouerniam '.2 The judges, however, were in a quandary, for they did not know whether, in awarding damages, they should take into consideration all the time that the rent had been unlawfully detained or merely that which had elapsed since the statute was made. There was nothing in the statute to help them in their difficulty arid to inform them if it was to be retrospective in effect. It was a problem that was frequently before the law courts,3 but on this occasion the judges, influenced probably by the consideration that the interests of so important a person as the queen-mother were concerned and swayed by thoughts of the lowliness of their position as justices of assize, had refused to indulge in interpretation. Therefore the queen besought the chancellor to raise this question before the king and to ask him to make an interpretation (declaratio) of the statute and remit it to the judges concerned. The answer to her supplication is found in the first of the ' explanations ' of the statute of Gloucester, made by the king and his judges : damages shall run only from the time that the statute was published.4 1

A prolonged search among the numerous Yorkshire assize rolls of the early years of Edward I's reign has failed to discover more than one reference to this case. It is an incomplete and vacated entry on Assize Roll, no. 1239, m. 22, which gives proceedings before John of Reigate and others in nine midland and northern counties, including Yorkshire, in 1278 : ' Assisa venit recognitura si Henricus de Percy pater lohannis de Percy fuit seisitus in dominico suo vt de feodo de viginti ct 'luabus libratis redditus cum pertinenciis in Toppeclyue et Wylton' in Clyueland' die quo etc. et si etc., que Alianora que fuit vxor Henrici de Percy tenet. Que per attornatum suurn venit et petit quod assisa ista ponatur in respectum quousque predicta Aliénera domina sua cum domina regina matre domini regis super hoc habeat colloquium. Et similiter predictus lohannes per Bicardum Dyue custodem suurn petit etc. Ideo datus est dies vsque diem louis in septimana Pentecostés hie prece parcium. Ad diem ilium venerunt predicti Galfridus (sic).' 2 Anc/tent Gorrfâpondf.nce, xxiii. no. 5: below, p. 473. 3 e.g. Plucknett, op. cit. pp. 37, 42, 108, 113-18. 4 The ' Expositio ', as printed in the Statute.s of the Realm, i. 52, is given the same date as the statute itself, but it is impossible, of course, that both should be issued on the same day. We cannot tell how long elapsed before the ' Expositio ' was made, but certainly by 1279 there was no longer any hesitation in the matter of awarding damages in possessory assizes. A ease of novel disseisin, occurring in Yorkshire in that year, has a marginal entry, ' Dampna secundurn statuta Gloucestrie, c. s.' (Assize Roll, no. 1055, m. 48d). The compiler of the Year Book, 21-22 Edward I,

VII 470 THE SOUECES OF TWO REVISIONS

OF

The twelfth chapter of the statute of Gloucester was ordained by the king and council in reply to direct representations on the part of the citizens of London * that a grievance occasioned by legal procedure should be removed. Hitherto, whenever a man, impleaded in the hustings, vouched to warranty one who was outside the city's jurisdiction, it had been customary for the voucher to be tried before the king's justices when they were next on eyre at the Tower. But it was inevitable that the long intervals between one eyre and another should cause many delays which brought with them great inconvenience and hardship.2 To remedy this state of affairs, it was provided in 1278 that he who vouched a ' foreigner ' to warranty in the hustings might have a chancery writ, directed to the sheriff of the county in which the vouchee had lands, to summon him to appear on an appointed day in the court of common pleas, and another writ ordering the mayor and bailiffs of London to stay proceedings in. the hustings until the voucher had been tried. That done, the plea was to return to the hustings for final judgement on the principal issue.3 Such was the procedure for two and a half years, but this reform had evidently not succeeded in its purpose, for on 10 June 1281 this chapter was solemnly ' corrected and changed ' by the king and council.4 Instead of leaving it to the tenant to seek a writ in chancery for summoning the stranger to warranty, it was now decreed that the mayor and bailiffs should automatically adjourn the parties before the bench, send there the record of the plea, and in the meantime postpone further action before themselves. As soon as the judges of the bench received the record, it was they who were to issue the writ of summons which brought the vouchee before them. But this did not end the troubles which gathered round the question of foreign vouchers within London, and circumstances arose later which caused both official and unofficial explanations of the reasons for the alteration of the statute of Gloucester to p. 308, still thought it necessary to add a note that in a possessory assize a man could recover no damages save those sustained since the statute of Gloucester, even though he had been disseised twenty years earlier. 1 Liber Custumarum (Munimenia Gildhallae Londoniensis, ii. pt. i), p. 169 : ' ad quorum rogamina et prosecutionem ordinatum fuit per dominum regem et consilium suum et in atatuto predicto provisum. . . . " 2 The last eyre was in 1276. Although the traditional interval was seven years, the next eyre did not take place until 1321. 3 Statute of Gloucester, c. 12 ; Statutes of the Realm, i. 49. In this matter London was a favoured jurisdiction. As a rule, the royal courts, once they had obtained cognizance of a plea, never allowed it to pass out of their jurisdiction. Their participation in cases of ' foreign ' vouchers arose from the fact that if the lands of the vouchees lay entirely outside the bounds of the local jurisdiction, that local jurisdiction was powerless to enforce their attendance and had to seek the aid of the royal courts whose authority could alone transcend those bounds. 'Liber Custumarum, p. 175 ; Statutes of the Realm, i. 52.

THE STATUTE OF GLOUCESTER, 1278 VII 471 be put forward. For more than thirty years after 1281 legal procedure followed the lines laid down in that year until, in 1313-14, one Gregory of Norton made exception to it on the ground that it was obviously contrary to the terms of the statute of Gloucester.1 William Bereford and his colleagues examined both the statute and also the amended article which was alleged to have been sent by Edward I to the mayor and sheriffs of London, found that there was complete disagreement between them, and for two years refused to try cases brought before them in what was by this time the traditional way. The situation was critical, for all judgements given in accordance with the amendment were not beyond the danger of being reversed. Unable themselves to find any satisfactory evidence about the change in 1281, in spite of a search for more than two years among the records, the mayor, sheriffs, and aldermen of London obtained a writ of cerliorari to the treasurer and chamberlains of the exchequer, who at last in 1316 discovered the record of a case of 1290 to which a transcript of the amended article was sewn and in accordance with which judgement had been given. Thereupon the council on 2 May 1316 ordered the judges of the bench to continue following the procedure laid down in the article, even though it did not accord on all points with the statute of Gloucester.2 However doubtful we may be whether the common law courts had any official version of the statutes to which they could refer,3 it is quite clear that the bench had no authoritative copy of the article of 1281, and the curious situation that arose in Edward II's reign provides a striking illustration of ' the failure of the courts to secure accurate knowledge of the details of the legislature's enactments '.4 But if the actual correction of the statute had slipped from the memories of men in 1313-14, it was still more likely that the reasons for the correction would have to be supplied by simply guessing at the intention of the legislature. A writ to the justices of the bench ventures a conjecture that the statute was altered for ' the hastening of justice and the avoidance of injuries arising through long delays ',5 but qualifies it later by a cautious ' so we believe '.6 A more specific reason is given in the royal writ to the treasurer and chamberlains ordering a search to be made amongst the records in the treasury : delay had resulted from the fact that the tenant, who by the Liber Custumarum, pp. 170 if. Cal. Close Bolls, 1313-18, p. 282. The amended form of this chapter is to be found later on the close roll (ibid. 1343-6, p. 63). It was at once enrolled in 1316 upon the plea rolls of the bench (no. 214, m. 105 : the discovery of Mr. G. J. Turner, Year Book, 9 Edward II, p. xii). 3 Sayles, Select Cases in the Court of King's Bench (Seiden Society), i. cxxi, clx. 4 6 6 Plucknett, op. cit. p. 104. Liber Custumarum, i. p. 175. Ibid. p. 176. 1

2

VII 472 THE SOU ECE S OF TWO REVISIONS

OF

statute of Gloucester had himself to seek a chancery writ to bring the vouchee into court, found it difficult to obtain one, for the chancery was often, by reason of war. in Wales and Scotland, so that access to it was far from safe.1 The compiler of the Liber Custumarum adds the gloss that poverty or illness or similar misfortunes might hinder the tenant's return so that he could not appear in the bench on the day appointed and in consequence lost his process.2 It is evident, therefore, that it was the tenant who was regarded as the party whose grievances were to be removed by the abolition of the need for seeking a chancery writ to remove the process from the hustings to the bench. But these interpretations of 1316 have done some violence to history, for from 7 August 1278, when the statute of Gloucester was made, until 10 June 1281 when c. 12 was corrected, the chancery of Edward I was never in Scotland, for war with that country was still unknown, nor even in Wales, for the first Welsh war was over and the second not yet begun. There is equally absent any foundation in fact for the suggestion that difficulty in reaching the chancery resulted in unjust and unavoidable default. Moreover, a petition which the Londoners sent to the king sometime between 20 March 1280 and 10 June 12813 declared that the injured party was not the tenant but the demandant, for in it is recounted not the grievances but the misdeeds of the tenant. ¡Aber Gustumarum, p. 172. Ibid. p. 170. This view seems to have been accepted as satisfactory by Dr. R. R. Sharpe (Gal. of Letter Books of the City of London, A, pp. ix-x). 3 Ancient Petition, no. 10975 : printed below, p. 473. The petition is the second of five which have been written on the recto of a single sheet of parchment. The subject-matter of the first of these petitions allows the document to be dated with fair accuracy, it alludes to the fact that once it had been customary for foreign merchants to be given a period of only forty days from their arrival in London within which to sell their wine and merchandize (see Cal. of Letter Books, C, p. x). This was always an inconvenience and hardship to them, and the king, often dependent on these merchants for loans, was usually inclined to show them considerable favour in spite of the opposition of the jealous and unfriendly London traders. The Londoners now complained that during the war, undoubtedly the first, in Wales, Kdward I had extended the period of stay of the Gascon merchants to three months (cf. Cal. Close Rolls, 1272-9, p. 375), but the concession, so they asserted, was not intended to be in force permanently. Yet the Gascon merchants had taken continual advantage of it, nor did later protests of the Londoners in the Easter parliament of 1279 avail in getting it withdrawn (Richardson and Sayles, Kotuli Parliamentorum Anglie Hactenus Inediti, p. 4). The alien traders had consolidated their position by obtaining a fresh writ from the king, addressed to the mayor and sheriffs, forbidding them to obstruct the Gascon merchants in trading with whom they liked iuxta ¡ormani provisionis predicte. This writ is now classified as Ancient Petition no. 10974, and there can he little doubt that it was an enclosure with the petition of the Londoners which follows it and incorporates its substance. The writ is dated exactly : 20 March in the eighth year at Down Ampney, where Edward I was in 1280 from 28 February till 27 March (Henry Gough, Itinerary of Kdward I, i. 104. f.). The petition, therefore, lies between this date and 10 June 1281 when the statute of Gloucester, c. 12, was amended. There is a fair presumption that it would be presented in tempore parliamenti at Easter 1281, the amendment being published on the last day before the king left Westminster for a short progress in the country (Gough, op. cit. i. 108). 1

2

THE STATUTE OF GLOUCESTER, 1278 VII 473 The Londoners sought the amendment of the statute of Gloucester on the ground that some men arranged collusive actions with their warrantors simply in order to drag out the proceedings and thereby prolong their own tenure of the tenement in dispute, to the great and obvious damage of the demandant.1 It was impossible to forbid the vouching of a warrantor, but process might be accelerated if the responsibility for obtaining a chancery writ to begin the action in the bench were removed from a tenant who had excellent reasons for delay in seeking such a writ. Some measure of reform was initiated when the issue of this writ was made in 1281 automatic with the passing of the plea from the hustings to the bench.

APPENDIX Ancient Correspondence, xxiii. no. 5 ALIENORA dei gracia regina Anglie domina Hybernie et ducissa Aquitanie mater regis venerabili in Christo R[oberto] eadem gracia Bathoniensi et Wellensi episcopo, salutem et sincere dileccionis effectum. Cum quedam assisa capta nuper fuerit in comitatu Eboraci coram iusticiariis ad hoc assignatis super detentione xxij libratarum redditus ac dampna nostra vna cum dicto redditu sint nobis adiudicata per statutum domini regis quod nuper fecit apud Glouerniam ac dicti iusticiarii hesitent an recuperare debeamus dampna nostra de toto tempore quo aduersarius noster dictum redditum occupauit vel a tempore dicti statuti facti vel a quouis alio tempore. Paternitatem vestram affectuose requirimus et rogamus quatinus cum domino rege super hoc colloquium habere velitis et ipsum rogare ex parte nostra vt istius statuti declaracionem faciat et illam significet iusticiariis antedictis. Tarnen si placet super hoc faciatis quod exinde vobis teneamur ad grates speciales. Válete. Ancient Petition, no. 10975 PRIENT e requerent nostre seygnur le rey ses prodes hommes de Londres que, desicom auncienement a tous iours soleient marchaunz e hommes 2 estraunges lor marchaundises paruendre dens les xl. iours de lour venue, 1

Vouching to warranty was a very common method of legal trickery, nor did the Statute of Westminster I, c. 40 (Statutes of the Realm, i. 36) and the complementary enactment in 1292 (Rot. Parí. i. 78 ; Statutes of the Realm, i. 108 f.) put an end to it. Cf. Year Book, 21-22 Edward I, p. 288 : the vouchee having made default, the tenant refused to pray judgement; ' this was done by collusion between the tenant and the vouchee in order to delay the demandant'. The way in which a skilful intermingling of essoin and default in a collusive action of warranty might manage to prolong proceedings almost indefinitely is seen in a case before the bench in the Hilary term of 1325 ; the pleadings justly provoked the remark that ' par collucion entre le tenant qi vouche et le vouchee, le demandant serroit delay de sa demande a toutz jours' (Maynard's Reports (1678), p. 587). 2 The words in italics are conjectural. The clerk has made an erasure and what was written is now quite illegible.

VII 474

e pus apres ce nostre seygnur eit sur ce ordine plus largement de sa grace a ses marchaunz de Gascoyne, ce est a sauer denz iij. meis, e cel ordeinement seyt puplice e comaunde fermement a teñir sur forfeture, les marchaunz de Gascoyne, par encheson de vne grace ke le rey lour fist en tens de sa gere de Gales, cel ordeinement ont tot lesse, e cele grace ke fut graunte a tens ke passé est, eontinuent e continue ont contre la forme auauntdite, e sur ce purchace bref ke le rey, si luy piest, la forme face comaundcr a garder desicom plus large estat eient ke vnqes mes naueyent par la forme. E del bref ke est funde en nauacion ï hors de la forme, face si luy piest remedie. Ausint endreit del estatut de Gloucestre de waraunz foreins vochez en play de terre en la Cite, ke il seit amende, kar del houre ke Ie vochour est a termine a siwre vers son waraunt en la court le rey e ke le bref nostre seygnur vigne al meire e as viscontes de sourseer deskes il eit sa warancie desreene, aucuns ne si went point, aucuns pledent oue lour garanz par consense et tenent le play Ion ges, a grant damage e a grant delay del demaundant. Ausint endreit des luyfs ke enpledez sont par brefs nostre seygnur le rey de dreit des tenemenz en Londres en le husteng, les luyfs procurent brefs nostre seygnur le rey par le tesmoinage des iustices de luerie al meire e as viscontes ke il ne tignent nul cel play, dont il demaundent remedie. Ausint des heirs de eens ki morts furent deuaunt le darein eyre de iustices a la Tour de Londres, por ki les heirs respondiront si com il poeient e sont amerciez por le fet de lour auncestres. Ausint de ceus ki attachez furent entre les deus hoyres des iustices a venir a ceste heire e ke ne vindrent mié le primer iour, sont amerciez ke vnqes mes en nul eire fet ne fut, fors sur le examinement des iustices de lauente 2 o v la cheson 3 por quei il fusent attachez par coroner e par visconte. NOTES 2. I.e. 'novation'. 3. I.e. 'la vente', which should be the masculine '1'event'. This change of gender is not unusual. 4. I.e. 'encheson'.

VIII The Clergy in the Easter Parliament, 12$J HERE has long been in print a collection of documents Trelating to the grievances of the clergy put forward in the

parliament which met at Westminster after Easter in the year 1285.1 Anyone who studies these documents must, we think, be puzzled to understand what precisely happened. They seem to suggest some kind of debate with the king upon the basis of one series of complaints : but two other series of complaints are apparently left without answer. It is obvious that the collection is incomplete, but probably no more than is entered in Bishop Godfrey Giffard's register ever came into the hands of the clerk who did the copying. From quite an unrelated source, a memoranda book of Bury St. Edmunds, known as Kempe's Register (Harl. MS. 645), we have extracted and print below another collection of documents, also obviously incomplete and, by themselves, equally puzzling. The two collections do not duplicate any items : but they very largely complete one another and enable us to make out an intelligible story and a story worth the telling for the light it throws on an obscure period of parliamentary history. The first step to take is to put the documents in proper sequence, and there can be little doubt that this should be as follows :

Concilia, ii. 115-16, from GifEard's Register. Concilia, ii. 116-17, from Giffard's Register. Replies on behalf of the king to (3). Kempe's Register : Document No. 1 below. Second series of articles (against Missing: indicated by (6). Statute of Westminster II). Replies on behalf of the king to (5). Kempe's Register : Document No. II below. Consequential revision of (5). Concilia, ii. 119, from Giffard's Register. Third series of articles. Concilia, ii. 117-18, from Giffard's Register. Reply on behalf of the king to (8). Kempe's Register : Docu-

(1) First series of articles (2) Replies on behalf of the king (3) ' Replications ' of the clergy to (2). (4) (5) (6) (7) (8) (9)

1

ment No. Ill below. Wilkins, Concilia, ü. 115-19.

CLERGY IN PARLIAMENT, 1285

VIII 221

Before we make further comment, let us try to construct an outline calendar of the parliament. No writs of summons are extant, although they must have been addressed to the prelates and magnates who attended : x there is no suggestion that the commons were present. From official sources it is difficult to get a more precise indication of the date of meeting than that the parliament was ' post-paschal' : 2 however, on 2 January certain parties from Gascony had been adjourned to the parliament at London on 29 April,3 and it is possible that this was the day on which it was originally intended that the session should open.4 If so, there must have been a postponement. The king did not arrive in London until that day,5 and on the morrow he came in solemn procession to Westminster Abbey, with the fragment of the true cross which had been captured from the Welsh.6 It would be natural to exhibit this venerated relic on the feast of the Invention of the Holy Cross (3 May) : 7 but it so happened that in 1285 the feast of the Ascension fell on this day, and any further ceremonies were accordingly put off until the Friday, when ' the holy cross called Neit' was borne in procession through London.8 These prolonged celebrations seem to have delayed the opening of parliament until that day (4 May), and the session was thereafter protracted for seven weeks and more.9 Apart from the task of preparing and debating the lengthy Statute (or rather statutes) of Westminster II—' a code in itself '10—there was much else to occupy the earlier stages of the parliament. There were numerous private petitions to be dealt with, the result of which was the establishment of standard formulas for the confirmation of charters ; n there was the question of scutage for the Welsh war ; 1 2 and there was the usual Annales Monastici (Osney), iv. 304 ; Cal. Close Rolls, 1279-88, p. 331. For references see p. 222, n. l below. Roles Gascons, ii. 232 (No. 826) : ' coram nobis ad quinqué septimanas instantis festi Pasche Domini in parliament» nostro Londonie '. 4 The Osney Annalist says that the summons was for Easter fortnight (8 April): but at that date the king was no nearer Westminster than Ely, and his journey to London was a slow one, with a ten days' stay at King's Langley. 5 Gough, Itinerary of Edward I, i. 166. 6 Annales Monastici (Waverley), ii. 402. On this relic—the Croice Gnaythe—• see the notes to Liber Quotidianus Garderobe, 28 Edward I, pp. 365-6 ; Tout, Chapters in Administrative History, iv. 469 n. 7 For examples of this practice see Liber Quotidianus Garderobe, pp. 35, 366. 8 Chronicles of Edward I and Edward II (Annales Londonienses), i. 93 ; Chronicon Petroburgense (Camden Soc.), p. 102. The statements of the chroniclers can only be reconciled on the assumption that there were processions on both Monday, 30 April, and Friday, 4 May. 9 Earth. Cotton, Historia Anglicana, p. 166 : and see below p. 223. 10 Stubbs, Constitutional History (4th ed.), ii. 123. 11 Cal. Close Rolls, 1279-88, pp. 331-2 : also printed in Rot. Parí. i. 225, and Statutes of the Realm, i. 104-5. 12 Annales Monastici (Dunstable), iii. 317; Chronicon Petroburgense, p. 104. 1 2

3

VIII 222

THE CLERGY IN

THE

miscellaneous administrative business,1 as well presumably as the consideration of the first series of articles presented by the clergy. The form of the statutes was not settled until late in June, and they appear to have been read in Westminster Hall on the 28th.2 It seems to follow that the second series of articles could not have been presented by the clergy until after that date, although such of the bishops as were members of the council doubtless had opportunities of knowing the substance of the proposed legislation. Discussions took place, as we shall see, between the prelates and the council, with the result that some concessions were made,3 but the actual wording of the statutes appears to have remained unaltered. The third series of articles was evoked, as Mr. E. B. Graves has shown, by the issue of a document which is included in collections of statutes among those of uncertain date but which can be dated, from nearly contemporary copies, 1 July 1285.4 In form, this is a writ or letter addressed to the prelates, archdeacons, officials, and other ecclesiastical ministers of certain named counties restricting them, in the wide debatable ground between royal and ecclesiastical courts, to the cognizance of matrimonial and testamentary causes. Prior to its issue some sort of public notification seems to have been given of the king's intention, for, in the first of the ' replications ' commenting upon his answers to their first series of articles, the clergy question whether the remedy offered will be of any effect, ' cum sit edicto publico promulgatum ut prelati cognoscant tantum de causis testamentariis et matrimonialibus '.5 In the third series of articles we seem to have another reference to this ' public edict ' : here it is spoken of as a generale edictum addressed to the ordinaries by the king's ministers. The edict was therefore in writing, but it seems not to have survived or, at least, has not been identified. Clearly it is to be distinguished from the ' letter ' of 1 July to which reference is made immediately afterwards in the following paragraphs of the third series of articles.6 What in any case seems evident is that the clergy had heard 1 Cf. Cal. Patent Rolls, 1281-92, pp. 156, 201 ; Cal. Close Rolls, 1279-98, pp. 312-13 ; Cal Fine Rolls, 1272-1307, p. 210 ; Roles Gascons, ii. 232 (No. 826); Madox, Hist, of Exchequer, ii. 8 ( k ) ; Cal. Docs. Ireland, 1285-92, p. 42 ; Chronicon Petroburgense, p. 105. 2 John of Eversden (Chron. Flor. Wigorn. ii. 235) says, ' in festo S. lohannis dominus rex multa ordinavit et publican fecit statuta '. John of Oxnead copies Eversden and is of no independent value (Oxnedes, Chronica, p. 265). The Osney annalist puts the date later, ' circa festum Apostolorum Petri et Pauli', i.e. 29 June (Anuales Monastici, iv. 304). The exact date appears to be given by the copy of the statutes in Liber A (Treasury of Receipt Misc. Bks. No. 274, fo. 310): see Statutes of the Realm, i. 95 n. 3 Anuales Monastici (Dunstable), iii. 318 : ' Rex vero quasdam mitigaciones fecit clero '. 4 Ante, xliii. 2-4 ; Statutes of the Realm, i. 209. 5 s Concilia, ii. 116. Ibid. p. 117.

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only in general terms of the king's decision when they prepared their ' replications ', but that they had before them the full text of the prohibition when they prepared their third series of articles. As the third document printed below implies, these articles must have been presented very near the end of the session, barely in time for some brief consideration to be given to them at the same meetings as those at which the other articles were discussed. These meetings we can date, with great probability, in the early days of July 1 and not later than the 4th when the king left Westminster.2 It would seem certain that the archbishop took no part in the discussions. He was at Lambeth on 6 May and was presumably present when the session opened, but he soon left for a visitation of the diocese of Salisbury.3 He was at Amesbury on Whitsunday (13 May), where he remained several days : on the 22nd he was at Potterne, on 1 June at Wareham, and on the llth and 12th at Sherborne.4 On 30 June he was no nearer London than Bradenstoke,5 and on 11 July he had reached Abingdon.6 Although we cannot trace his movements in great detail, the dates we have given exclude the possibility of Pecham's return to take part in the proceedings of parliament. Despite therefore the title of the third series of articles, ' Petitio Cantuariensis archiepiscopi et suífraganeorum ipsius ', he cannot have been personally responsible for them,7 though they are animated by his spirit and doubtless represent his views ; and it would be of interest to know who among the prelates took his place as the spokesman of the clergy. If it seems strange that the archbishop of Canterbury should have absented himself from this parliament, one of the most important parliaments of the thirteenth century and indeed of the middle ages, we have more than one possible explanation. Pecham may well have regarded his Salisbury visitation as a matter of too great importance to be postponed, especially since all the preliminary steps would have been taken and the necessary citations and inhibitions issued.8 He may The Waverley Annalist speaks of parliament in July (Aúnales Monastici, ii. 402). * Gough, Itinerary of Edward I, i. 169. 3 Cheney, Episcopal Visitation of Monasteries in the Thirteenth Century, p. 143 ; Churchill, Canterbury Administration, ii. 148, 156. The details here are sketchy, but it is certain that the archbishop visited the principal religious houses of the diocese on this occasion. * For these dates see Reg. Epistolarum fr. lohannis Peckham (Rolls Series), iii. 895-908 ; Reg. lohannis Pecham (Cant, and York Soc.), pp. 47, 220. 5 Registrum Malmesburiense (Rolls Series), i. 267-8. This is evidence that he visited both Malmesbury and Bradenstoke. 8 Chronicle of Abingdon (Berkshire Ashmolean Soc.), p. 30. 7 Concilia, ii. 117. The Dunstable Annalist also implies that he was personally concerned not only with these articles but also with the second series directed against the statutes (Annales Monastici, iii. 317-18). 8 Churchill, op. cit. i. 292 ff. 1

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also have wished to avoid meeting the archbishop of York, whose return to England was expected at this time, and who would in the normal course make his way to London.1 In the discussions with the clergy the king also took no personal part. Whether from disinclination—the absence of the archbishop may have been a factor—or because of the pressure of other business, it is not possible to decide. We do indeed catch a glimpse of him at this time, and also of certain of his ministers who must have taken part in the proceedings of parliament, and what we learn is instructive. On 29 June (the day after the statutes had been read in Westminster Hall) John of Kirkby, the treasurer, Richard of Boyland, and others of the king's justices summoned before them at the Tower Gregory of Rokesley, the mayor of London, the sheriffs, aldermen, and other citizens : whereupon Rokesley refused to appear, except as a simple alderman or citizen, on the ground that the summons was inadequate. For this reason the liberties of the city were taken into the king's hand, and the citizens were summoned to appear before the king on the morrow in his chamber at Westminster. As a result, a keeper was appointed to take the place of the mayor and a large number of citizens were punished.2 These latter details do not concern us. What is of importance in the present connexion is to note, firstly, that the king was on 30 June engaged in hearing personally a difficult and troublesome case, presumably technically in parliament, and, secondly, that the ministers who had been sent to take inquests at the Tower included John of Kirkby, who was both treasurer and clerk of the parliament,3 and also Richard of Boyland, who was the justice mentioned in the ' letter ' of 1 July, and who, as we know, was shortly afterwards concerned with the proceedings against the clergy in the diocese of Norwich for drawing royal pleas into ecclesiastical courts.4 There can hardly be any question that on 29 June there must have been a lull in the proceedings of parliament : a committee may have been sitting, but there cannot have been a plenary session, and some of the principal ministers took the opportunity of attending to other duties. It seems also extremely likely not only that Boyland was present at the parliament but that he had something to do with framing the ' letter ', in which his name is prominently mentioned, and that he was, in fact, consulted regarding the policy of restricting the ecclesiastical courts within what was regarded by the king's advisers as their proper sphere. Reg. Epistolarum lohannis Peckham, iii. 893; Register of William Wickwane (Surtees Soc.), p. xix : see also below p. 228. 2 Chronicles of Edward I and Edward II (Annales Londonienses), i. 94. The account in the Liber Albus (Rolls Series), i. 16, seems to derive from this source. Ralf Sandwich was appointed keeper on 1 July (Cal. Patent Rolls, 1281-92, p. 182). 3 4 Ante, xlvi. 532 ff. Ante, xliii, 2-7. 1

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Let us now try to describe in more detail the activities of the clergy in this parliament. First it will be well to remark that, unlike the documents that come from Bishop Giffard's register, which are formal and official, the documents that come from St. Edmund's are informal, to all appearance minutes of the proceedings drawn up by some one who was observing them entirely from the point of view of the clergy. These minutes may have been prepared on behalf of the clergy as a body, or perhaps they are the personal notes of the abbot of St. Edmund's, who was presumably among the ' viri religiosi' present at the parliament.1 The original notes could not have been very plainly written, and the transcriber, an incompetent person, has in places failed to understand them. The nature of the minutes can be best appreciated by placing in sequence one of the first series of articles, the king's reply to this article, the ' replication ' to the reply, and then the corresponding note of the verbal discussions.2 Petition III. Item, ut dominus rex non extendat protectionem suam in preiudicium prelatorum quoad Sequestrationen! vel Visitationen! aut alia officio incumbentia in ecclesiis parochialibus vel alus quibuscunque. Reply Responsio ad tertium : Non est intentionis regis vel suoriim quod per protectiones suas impediatur aliquis Ordinarius super sequestris vel alus que spectant ad suam iurisdictionem. Replication Item, in responsione ad tertium articulum (qua dicitur regem per protectiones suas non intendere impediré sequestra vel alia pertinentia ad officium prelatorum) dicunt prelati quod contrarium pluries sunt experti, regratiantes nihilominus huic intentioni regie et ulterius supplicantes quod rex sua auctoritate sequestrationes fieri non demandet, si mandare sufficiat quod in casibus forum regium contingentibus, prout iustum fuerit, per prelates suos clerici distringautur. Note of Discussion Ad tertium articulum, quod per protectionem regiam non inpediantur sequestra vel alia pertinentia ad officium prelatorum, non fuit ultima vice respons us, quia de hoc in precedenti tractatu inter prelatos et assingnatos ex parte domini regis fuerat concordatum; verumptamen expressum non fuit quod cessaret dominus rex a sequestrationibus demandandis. 1 Those who petitioned the king for the confirmation of their charters are described as ' plures de regno suo, tarn prelati, viri religiosi et alie persone ecclesiastice quam comités et barones et cetere persone seculares seu laice ' (Cal. Close Rolls, 1279-88, p. 331). 2 We have introduced a more or less consistent orthography.

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The general lines of procedure are clear enough. The point in dispute having been elucidated as far as possible in writing, it is considered at a meeting between the prelates and certain persons appointed by the king : 1 from the introductory matter with which our document No. I begins, we know these persons to have been the chancellor, Robert Burnell, bishop of Bath and Wells, and other members of the council. We should note in passing that to the sixth article in the second series ' respondet curia regia ', by which presumably the king's justices in attendance at parliament are meant: but this may be merely a careless piece of drafting, and the views of the ' curia regia ' were probably expressed through the ' assignati ex parte domini regis ', as in the case of the tenth article of the first series. It seems unlikely that the justices as a body took part in the discussions : their views as well as those of the king would be expressed by the select body of councillors assigned to meet the prelates.2 Their first meeting was plainly inconclusive, and a further meeting (' ultima vice ', as the paragraph we have cited puts it) 3 was held, at which a number of matters were pressed farther. At neither meeting, however, were final decisions set down in agreed form. Apparently no further formal replies were returned to the first series of articles, although the clergy had protested against the insufficiency of the replies originally given : the verbal concessions were, in fact, few. No formal reply at all seems to have been returned to the second series of articles, although the first discussions had led to their redrafting, with some omissions. The original seventh article, for example, which protested against chapter five of the statutes 4 was dropped, after the councillors had insisted upon the reasonableness of what had been decided. But in general the verbal replies recorded in these minutes are little more than explanations of the king's intention that the statutes would not be enforced unreasonably, although to the first article, regarding intestacy, there is an undertaking that at a future parliament the question would be reconsidered and that meanwhile no action would be taken to enforce chapter twenty-three. As we have already seen, the ' letter ' which was the occasion 1

III.

See below, Document I, articles 3, 4, 7, 8, 9, 10 ; Document II, art. 7 ; Document

2 It will be noted that a similar form of words was used in the original reply to article 10 of the first series : ' Curia intendit quod prelati bene scient cognoscere que placita sint de testamento et que de matrimonio. . . .' All these original replies were made through the chancellor (Concilia, ii. 116). 3 Elsewhere the phrase used is ultima dies: see Document I, articles 7, 9, 10; Document II, art. 7. 4 Statutes of the Realm, i. 76 : 'si pars rea excipiat de plenitudine ecclesie per suam propriam presentacionem, non propter plenitudinem illam remaneat loquela, dummodo breve infra semestre tempus impetretur '.

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for the third series of articles bears the date of 1 July, and it seems improbable therefore that there could have been time to prepare this rejoinder before the 2nd. It seems, however, to have been presented before the first meeting between the prelates and the council actually closed, for it is stated in our document No. Ill that a promise was then given, in reply to the penultimate article (16), that proceedings would not be taken against a bishop if a clerk of his failed to appear before the king's court, provided that the bishop, for his part, had done what was possible to constrain the clerk. Upon the other articles the clergy received no satisfaction, and it would seem as though their complaints under these heads were not pursued at the final meeting. In any case, the time for a discussion was plainly very limited in the last day or two of the session ; and, however aggrieved the prelates may have felt, their complaints went very far beyond any specific ground to be found in the letter of 1 July itself, which was, in fact, covered by their second, third, and eleventh articles, the remaining articles dealing with more general or standing grievances. And here we may perhaps draw attention to the way in which the information supplied by these new documents corrects an inference which Mr. Graves drew, plausibly enough, from the facts available to him. Since the grievances set out in the third series of articles travelled far beyond any matter of complaint specifically contained in the letter of 1 July, and since there was much in common between these articles and the proceedings of Richard of Boy land and Richard of Rothing in the diocese of Norwich subsequent to the issue of the letter, he came to the conclusion that the articles were presented later in the year.1 The dates which we have established appear, however, to show plainly that Boyland and Rothing followed in this matter the precedent of other royal justices, who were really the subject of complaint, and that the articles were presented before Boyland and Rothing had commenced their proceedings. The conclusion is inevitable that, for the time being at least, the protests of the clergy were simply disregarded. With this modification,2 however, Mr. Graves's reconstruction of the events leading up to the issue of Circumspecte Agatis seems to us to stand. If these documents are of value for elucidating some obscure points in the history of the controversy between Church and State in 1285 and 1286, they have also an interest for their bearing upon the history of parliamentary procedure. The point we would stress is that the task of dealing with these important petitions was delegated to a committee of the council. It seems, Arde, xliii. 3, 8. We made a further small correction on a point of detail in Bull. Inst. Hist. Research, v. 150, n. 5 : see also Law Quarterly Review, 1. 565. 1

2

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indeed, to have been regarded as something of a grievance that the king took no personal part in the proceedings. Not only are we told in the introductory paragraph which precedes these minutes that he did not reply, but only the chancellor and the other councillors ; in the more formal document of Bishop Giffard's register, the ' replications ' commence with a statement that the reply given to the prelates and clergy ' in the name of the chancellor ' did not seem adequate.1 If we are right in supposing that the first series of articles were presented at the beginning of the session and if, as may have been the case, the first replies were promptly given, there may be here an expression of Pecham's irritation at having to enter into a discussion with ministers, the principal of whom was his own suffragan, a discussion, too, in which he had little chance of obtaining satisfaction. Possibly this circumstance contributed to his decision to absent himself from the parliament and to proceed with the visitation he had already planned. This must remain a speculation. It is, in any case, noteworthy to have so plain an indication of the importance of the committee in parliamentary procedure : and although we are not given names, we are probably justified in conjecturing that in this committee, which was led by Robert Burnell, the professional element, the trained ministers, predominated. Evidence of the use made of such committees in the parliaments of Edward I occurs not infrequently,2 although there is, so far as wre are aware, no evidence elsewhere of a committee at this period set up for the purpose of examining and discussing petitions from the clergy.3 Indeed, very little has been known of the manner in which petitions from the clergy were dealt with in parliament, and the present documents are on that account all the more valuable. On the substance of the petitions of 1285 and the particular grievances they embodied there seems no need for further comment. What is remarkable is that, although the Church had a tenacious memory for her past wrongs, the petitions of 1285 seem to have been let sleep. In 1309 the clergy brought before parliament not only their more recent grievances but also their unsatisfied, or but partially satisfied, demands presented at previous parliaments, those of Michaelmas 1280, Lent 1300, and Hilary 1301.4 Nothing seemingly was said of the petitions 2 Concilia, ii. 110. Ante, xlvi. 535-6, 54G-7. A somewhat similar procedure was, however, followed in 1340 and 1348 (ante, xlvii. 387-8). 4 Concilia, ii. 315-21. The articles printed at pp. 315-16 are nos. 3-6, 10, 12, and 14 of the memoriale of 1280. Those at pp. 316-21 are evidently those stated (at p. 315) to have been put forward at the parliament of Lincoln in 1300, i.e. Hilary 1301. The same articles, however, with an additional paragraph, and without replies, are to be found among the manuscripts of the Dean and Chapter, Canterbury, no. M.260. Here they 1

3

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presented and the answers received in the twenty years between 1280 and 1300, although it appears highly probable that, over arid above all the petitioning of 1285, lengthy series of articles had been presented in other years.1 Again in 1316 the grievances of 1280 were brought forward, as well as those of 1309, but nothing seems to have been repeated of the grievances of 1285.2 In seeking a reason for this we may understand better the attitude of the king to clerical petitions throughout at least the greater part of his reign. Although copies of the articles of 1280 are known with answers in two different versions, neither text appears to be authoritative, in the sense that the answers are those committed to writing on behalf of the king, for the king was extremely reluctant to have anything at all put into writing. Hence doubtless the existence of these two versions and also of copies of the articles without answers.3 The preamble to the version which became the received text is instructive.4 This tells us that in the winter parliament—it seems actually to have met in the latter part of October 5—after the articles had been presented there were many discussions regarding them. Finally the king gave a verbal reply on the morrow of All Souls, but evaded giving any written answers on the ground that certain of the complaints required further careful examination. The archbishop, however, caused a memoriale of the replies to be drawn up, after consulting his brother bishops and others who had been present. This memoriale was ultimately to play no inconsiderable part in moulding the law which defined the bounds of ecclesiastical are headed : ' Articuli liberati domino E. regí ex parte prelatorum et cleri Anglic in parliaraento suo Londoniis in quadragesima anno Domini M°CC° nonagésimo nono tempore domini R. Cantuariensis archiepiscopi : et postea in parliamento Lyncolnie in octabis sancti Illarii anno Domini iidem articuli liberati fuerunt domino regi in presencia prelatorum et procerum tocius regni'. It is to be noted that no. 19 of these articles is in substance identical with article no. 8 of the memoriale. 1 This presumably is the explanation of the ' agenda ' of 1286 to be found in the Register of Godfrey Giffard D (Worcs. Hist. Soc.), ii. 298 (cf. ante, xliii. 7), and of what appear to be draft articles (c. 1295) in Reg. lohannis de Pontissara (Cant, and York Soc.), pp. 771-8 2 The selection of articles from the memoriale of 1280 was different from what it had been in 1309. A few of the articles of 1300-1 were also repeated in 1310 on the ground that they were not observed : see below p. 230, n. 1. 3 For surviving copies see ante, xliii. 13-14. To these add Lambeth Palace Library MS. 1213, fos. 137-40 : this appears to be the source of the Wharton copy, ibid. MS. 582, fos. 65-8. 4 Printed ante, xliii. 13, n. 3. The full text of this version seems never to have been printed. 5 Cal. Close Rolls, 1279-88, p. 23, indicates that it met on 20 October. A message from Ireland was to be presented in parliament a month after Michaelmas (Cal, Patent Rolls, 1272-81, p. 380).

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and secular jurisdiction : l but what concerns us in the present connexion is to note the obvious reluctance of the king and his advisers to bind themselves to any written statement. This attitude is manifest, too, in 1285, although written replies were given to the first series of articles then presented : and it would seem that it was not until 1301 that the king again gave his answers in writing. But once more, in 1309, he seems to have refrained from giving written replies, although in 1316 he not only did so but published the articles and answers in the form of letters patent, the Articuli Cleri of our statute book. It has been suggested that this ' concordat between Church and State ' was the price of a clerical subsidy.2 Be that as it may, it did not purport to mark a new departure but a recognition of indisputable rights, and it did not put an end to the controversy ; and in 1327 the clergy feel constrained once more to bring forward a long series of grievances,3 the forerunner of many presented in subsequent parliaments. To pursue them would, however, take us far from our present subject ; but it may be useful if we end with some generalizations on the relation of the clergy to parliament. Much has been written on this subject, yet perhaps it has nowhere been sufficiently emphasized that in England the coalescence of parliament and convocation was fundamentally impracticable. The clerical 1

The second article gained wide currency. A copy, for example, was transcribed into Kempe's Register on the same page as the concluding portion of the minutes of 1285. But its widest extension was as an appendix to the writ Circumspecte Agatis (ante, xliii. 16-20). In the Hilary parliament, 1316, a petition (A.P. 1985) was presented in these terms : ' Articuli grauaminum illatorum ecclesie Anglicane per secularem postestatem alias porrecti Celebris memorie Edwardo quondam regi Anglie defuncto, quibus licet paucis sufficienter et ceteris omnibus est insufficienter responsum, vnde .. archiepiscopus, episcopi et ceteri prelati et clerus Cantuariensis prouincie iterato illos articulos, quibus insufficienter vt premittitur est responsum, vnacum aliis articulis nouis huiusmodi grauamina continentibus non prius propositis, domino Edwardo Dei gracia nunc regi Anglie illustri porrigunt, tarn super antiquis quam nouis articulis petentes benignum responsum et medelam congruam adhiberi, et articulos paucos quibus sufficienter, sicut predictum est responsum, per statutum super illis edendum inuinciabiliter imposterum obseruari, nam responsa nunc per consilium domini nostri regis hiis data nullius vel modici sunt effectus '. The reply to this petition is to be found in Rot. Parí. i. 3506, under the date of Saturday (31 January). The two groups of articles, those insufficiently arid those sufficiently answered, are to be found respectively in Parliamentary and Council Proceedings (Chancery), 4/17 and 43/13. The former (with the replies) are incorporated in the Articuli Cleri (Statutes of the Realm, i. 171-4 ; Concilia, ii. 460-2, from other texts) : these include the substance, in most cases textually unaltered, of articles 2, 5, 8, 9, 10, 13, and 18 of the memoriale as well as articles 1, 5, 8, and 9 of the gravamina non prius proposita of 1309 (Concilia, ii. 321), together with two fresh articles. The articles sufficiently answered comprise articles 5 and 6 of the memoriale and 12, 19, 24, and 28 of the articles of 1301 (Concilia, ii. 318-20). There is therefore some overlapping, since article 5 of the memoriale and article 19 of 1301 are, in substance, the same as chapters 5 and 6 of the Articuli Cleri: see above, p. 228, n. 4. 2 Stubbs, Constitutional History (4th ed.), ii. 356 3 Rotuli Parliamentorum Anglie hactenus inediti (Camden Series), pp. 106-10.

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proctors, Stubbs wrote, ' had standing-ground from which they might have secured a permanent position in the legislature. By adhering to their ecclesiastical organization in the convocations they lost their opportunity, and, almost as soon as it was offered them, forfeited their chance of becoming an active part of parliament.' l The proceedings at the Easter parliament of 1285 bring out the essential incompatibility of the ecclesiastical organization with the secular. The clergy treat with the king and his councillors in parliament as with a separate and indeed a rival power. The Church, in its provincial organization, has its own records and its own memory. It is not like the body of knights and burgesses, an occasional and fleeting assembly, with no unity, no meaning, no existence outside parliament, nor like the body of lay magnates, of uncertain composition, summoned at the will of the king, and, if meeting apart from his councils, reduced to illicit conventicles and conspiracies. In parliament the representatives of the Church come only to complain and to consider the king's demands for taxes. As councillors or as ministers, churchmen no longer represent the Church, although in their actions they will be careful to save the privileges of their order. And since they are now on one side, now on the other, differences rarely or never come to breaking-point, and compromise, explicit or tacit, is always possible. Since, too, churchmen are the king's subjects whose temporal welfare is procured by his peace, since they are Englishmen living among Englishmen, there must be a modus vivendi. It is fair to say that their reiterated complaints in parliament rarely secure to the clergy any solid concession from the king. The Church abates not a jot of her demands, but has no expectation of enforcing them, and her leaders accept, with the grace of men of the world, the compromise which leaves—in Maitland's words—the odd trick with the State.2 There is the appearance of conflict, but it is never pressed, except when a man of rigid principle appears, like John Pecham, who would make the ghost of Thomas Becket walk the stage that had grown weary of him.3 It was left to their successor on the throne of Augustine, the graceless Walter Reynolds, to secure the concession of the Ariiculi Cleri. Constitutional History (5th ed.), iii. 462. For the expression of a rather different point of view see ibid. (4th ed.), ii. 204-5. Chapter x of Professor Pollard's Evolution of Parliament brings out some important points, but the argument is not always easy to follow. In different and very special circumstances, be it noted, the lower clergy of the Pale took the place in the Irish parliament, which had presumably been intended by Edwardian administrators for the lower clergy in the English parliament. 2 Canon Law in the Church of England, p. 54. 3 Cf. Beg. Epistolarum fr. lohannis Peckham, i. 22, 214, 243 : this last reference is also in Concilia, ii. 65. 1

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MINUTES OF MEETINGS BETWEEN THE PRELATES AND MEMBERS OF THE COUNCIL IN THE EASTER PARLIAMENT, 1285 Had. MS. 645, fos. 2246-225« I

Isti suut articuli traditi in parliamento post Pascha auno Domini M°CC°LXXX° quinto ad quos tune non respondebatur a domino rege set a cancellario tantum et ab illis qui tune de eonsilio erant presentes. Ad primum articulum x de recurendo ad iusticiarios in prohibieiom'bus illicitis vel dubiis, coneessum est quod ad iusticiarios sequentes dominuin regem ad placita sua vel ad iusticiarios de bauncc 2 habcatur recursus. 3 Ad secundum articulum quod ecclesia habeat dc necgligencia patronorum religiosorum si se velint per ingnoranciam excusare contra factas collaciones post lapsum temporis de ecclesiis que sunt de patronatii eorum, responsum est quod 4 facta patronis denunciacione vacacionis non intromittet se curia regia de collacione facta post lapsum temporis subsequentis. 5 Ad tercium articulum quod per proteccionem regiam non inpcdiantur sequestra vel alia pertinencia ad officium prelatorum, non fuit vltima vice responsus, quia de hoc in precedent! tractatu inter prelates et assingatos ex parte domini regis fuerat concordatum; verumptamen expressum non fuit quod cessaret dominus rex a sequcstracionibus demandandis. Ad quartum articulum de captorum hberacione, supponebatur in eodem tractatu satis coneessum 6 fuissc quod non liberetur sine debita requisicione episcoporum. Ad quintum et sextum articulum de clericorum capcione et detcncione, responsum est quod in casu vbi iminet periculum vite vel .membrorum ecclesie liberentur, in alus casibus nequáquam ; set coneessum est quod libcrentur in primo casu quandocumque fuerint requisiti ; nee est aliud actum de casibus in quibus capiendi sunt et in quibus non. Ad septimum articulum quod non denegetur ca])cio excommunicatorum qui se appellasse proponunt, non tange batur die vltima ; set supponebatur quod actum fuerat in priori tractatu quod non appellantibus indistincte set tantum illis qui forent persones notabiles et quorum appellacioncs legitime prcsumuntur. Ad octauum articulum, senserunt 7 assingnati ex parte domini regis in eodem tractatu neminem esse eogcndum per curiam regiam ad excommunicatorum communionem nee d^niineiandum esse per earn prelatorum sentencias non teuere. Ad iionuin articulum, iiichil die vltima tangebatur : set supponebatur quod actum fuerat in iam sepedicto tractatu quod rex non sustinet ad ccclesiam pertinere cognicionem aliquam de debitis defunctorum. Ad decimum articulum, de quo non agebatur die vltima, tenet curia regia, prout senserunt assingnati in tractatu prefato, quod non sustinebit The order is that of the articles in Concilia, ii. 11">-1G. 3 4 - iS'/r. Word omitted. MS. repeats (/nod. r MS. ttiibwjitdit!. ' MS. cniiw^.tion. "• MS. .spii.s'cra??/. 1

4

EASTER PARLIAMENT,

1285

VIH 233

rex ccclesiam cognosccre in aliqua causa quam dicit pertinerc ad curiam suam, ante prohibicionem sicut nee post, immo quandocumque precedentes puniré proponit. Ad vndccimum articulum, concedit dominus rex quod clerici purgati habeant bona sua de sua gracia speciali: hoc tarnen non concedit de fugitiuis licet post reditum sint purgati. Ad duodecimum articulum, tenet rex quod statutum suum non mutabit ne possint ecclesie cressere in tcrris vel tenementis sen possessionibus. Ad xiij m articulum de ccclesiis Wallie, tenet rex quod non est earuin libertatibus derogatum. Ad xiiij m articulum, bene concedit rex quod mangna carta seruetur. Ad xv m articulum, bene permittat rex quod laici falsarii coram iudicibus ecclesiasticis arcstcntur, donee vicccomiti vel aliis quorum interest eosdem recipere liberentur. Ad xvj m articulum de ludeis apostaticis, bene concedit rex quod fiat iusticia per archiepiscopum cum Justiciaras assingnatis in forma de qua alias est conuentum. Ad xvij m articulum et vltimum, licit expósita sit domino regi forma per quam posset, vt videtur, cohiberi peruersitas ludcorum, nichil tarnen de hoc eft'ectu alitcr est responsum. II

Isti sunt articuli in quibus videtur ecclesia l preiudicari per statuta edita in parliamento predicto. Ad primum articulum 2 quod obligetur de cctero Ordinarius ad respon dendum de debitis quatcnus bona defuncti sufficiunt, eo modo quo exsecutores responderé tcnerentur si testamentum fecisset, concedit rex quod libere disponant episcopi de bonis intestatorum vt sole bant, ita quod non exeat a curia regia mandatum aliquod contra eos doñee super hoc melius deliberauerit dominus rex vsque ad aliud parliamentum. Ad secundum articulum 3 quod in curia regia executoribus breuc dc compoto concedatur, videtur domino regi quod stare debet. Ad tercium articulum, 4 videtur domino regi quod stare debet statutum de corrodio de breui, nee tarnen per hoc intendit auferre ecclesie quin prelatus, quatenus ad eius spectat 5 officium de seruanda iusticia, se circa concessa sen concedenda corrodia intromittat. Ad quartum articulum, 6 responsum est quod, remanente statuto supradicto quod ecclesie non crescant in tenementis vel possessionibus, consequens est vt stet statutum aliud per quod fraudis collusio eneruatur. Ad quintum articulum, 7 respondct rex quod, de tenementis collatis domibus religiosis a fundatoribus suis et postmodum alienatis, wit vt seruetur statutum vt habeat 8 illc a quo vel a cuius antecessoribus tenementum sic alienatum fuerit habeat 9 breue ad recuperandum predictum tenementum in dominicum ; de tenementis uero postmodum adquisitis non est regie intencionis quod intelligatur statutum. 2 MS. ecchsie. Concilla, u. 11Í) (1) ; Stat. Westin. il. c. 19. Concilia, ii. 119 (2) ; Stat. Went,n. ii. c. 23. 4 Concilla, ii. 119 (3) ; SM. WeMrn. ii. e. 25. 5 6 MS. specta. Concilla, ii. 119 (4) ; Stal. }Ye.stm. ii. c. 32. 7 8 9 Concilia, ii. 119 (6); Staf. Westm. ii. c. 41. Sic. Sic. 1 3

VIII 234

CLERGY IN PARLIAMENT, 1285

Ad sextum articulum,1 respondet curia regia quod non est intencionas regie quod per solam biennii sessacionem reuertatur ad donatorem res donata ad pios vsus aliquos sustentandos, dummodo velit preest 2 defectum supiere ; nee intendit curia regia preiudicare prelatis ecclesie in hoc casu quin ad iusticiam faciendam quo ad vnum de quibus agitur obtractacionem quod ad suum pertinet officium cxequantur. Ad septimum articulum 3 super excepcione plenitudinis quo modo tollitur infra sex menses, videbatur assingnatis ex parte domini regis in supradicto tractatu quod bene congruit et expedit ita fieri; nee do hoc die vltima tangebatur quia articulus iste inter artículos traditos nullatenus scribebatur. Ad octauum articulum 4 de breui Indicauit, responsum est [quod]5 non est intencionis regie quod fiat per statutum illud inmutado aliqua contra quotam partem, set quod super illis quotis tantummodo concedatur breue super quibus rex illud prius non concedebat.6 Ad nonum articulum,7 concedit rex quod ad ecclesiam pertineat cognicio de presentacionibus ad vicarias, ad quas non presentant laici patroni, set si agatur causa de presentacione laici patroni rex wit habere cognicionem. Ad decimum articulum 8 et vltimum, responsum est quod non est intencionis regie auferre prelatis aliquid quod ad suum 9 spectat oíficium quantum ad correccionem peccati contra moniales abductas et abductores earum.

Ill Tercium erat genus articulorum de nouo traditorum post artículos primitus 10 traditos in parliamento predicto et statuta edita in eodem, ad quos artículos non est responsum, set videntur sub dissimulacione transiri, nisi quod in tractatu inter prelates et assingnatos a rege ad penultimum articulum u consensum fuit quod non procederetur contra episcopum quia non venit clericus suus, quern 12 vt non venire faceret recepit mandatum, dummodo fecerit episcopus quod ad suum oíficium noscitur pertinere. Concilia, ii. 119 (5); Stat. Westm. ii. c. 41. Possibly for prelatus : the whole paragraph from this point is corrupt. 5 Stat. Westm. ii. c. 5. * Ibid. MS. omits. 7 * MS. concedebatur. Concilia, ii. 119 (8); Stat. Westm. ii. c. 5. 8 9 Concilia, ii. 119 (7); Stat. Westm. ii. c. 34. MS. vnum. 10 MS. primus. 11 Concilia, ii. 118 (16). 12 This clause is corrupt. 1 2

3

NOTES Page 221, 1.21 B.L., Cotton MS. Cleopatra C.vii, f.lSb gives the opening date of the parliament as Pentecost, i.e. 13 May, and discloses that the king, having heard the arguments of the attorneys of the new prior of Christ Church, Canterbury, concerning his rights, deliberated with his council and gave the final judgement with his own mouth. 222, n.4 Throughout for ante read Eng. Hist. Rev. 227, n.2 Above, V. 150, n.5.


IX MEDIEVAL JUDGES AS LEGAL CONSULTANTS.

A

FEW years ago Dr. Bolland discovered, much to his surprise, that in the middle of the fourteenth century many royal judges were pensioners of the great abbeys and the great men of the day: they received regular salaries in return for legal assistance. He commented that it was ' hard to believe that they were paid or received quite innocently V It may be said at once that no efforts were made on either side to conceal contracts of this kind: they were entered in the normal way in the monastic registers and, indeed, the king could arrange for one of the judges of the king's bench to obtain compensation when the Order of the Knights Templars, then in the throes of dissolution, was no longer able to continue paying the pension it had agreed to give him.2 And Dr. Bolland's statement is open to the more serious criticism that it suggests a misunderstanding of the spirit of the age. It cannot be stressed too much that we must remain strangers to medieval men so long as we stand centuries away from them and measure their actions with our own standard of morality. If only we will admit straightway that in the middle ages everyone took bribes and few thought the worse of their neighbours on that account, we shall get into the right atmosphere and facts will assume for us the same colour as they had for those living at the time. When we take into consideration the private nature of the transactions, we can count ourselves fortunate in possessing several documents which reveal quite clearly the obligations that Ralph of Hengham, the great chief justice of the king's bench between 1274 and 1290, felt he could undertake and how he acted in response to those obligations. It will be remembered that, though the great commission of inquiry in 1290 resulted in Hengham's disgrace and removal from office, there is little reason to believe that he was guilty of corrupt practices as they were then understood 3, and some years later he was brought out of his retirement and made chief justice of the common pleas. We may safely regard him as a normal type of royal judge. 1 Year Book 8 Edward II (vol. XVIU), p. xiii; cf. the same writer's General Eyre, p. 93. ' Sayles, Select Cases in the Court of King's Bench under Edward I, i, p. Ixxvii. ' Op. cit. i, pp. Ixvii—Ixix.

IX 248

In 1284 the prior of Christ Church, Canterbury, gave Hengham an annual pension of a hundred shillings. As the terms of the grant are set out in full in the monastic register, now to be found among the Cambridge University MSS.,* and as no similar document relating to a royal judge has previously been printed, it is well to give it here in full: — Litera pensionaria. Radulphi de Hengham Omnibus Christi fidelibus, ad quos presens scriptum peruenerit, Thomas,5 permissione diuina etc., salutem. Ad vniuersitatis vestre noticiam volumus peruenire nos dedisse et concessisse dilecto nobis in Christo domino B., de Hengeham,6 clerico nostro, pro fideli et diligenti seruicio suo centum solidos sterlingorum annue pensionis, percipiendos de nobis annuatim in thesauraria nostra apud Cantuariam in quindena sancti Michaelis. Et idem dominus Radulphus bona fide nobis promisit quod ipse assistet nobis in ecclesie nostre negociis et fidele patrocinium, consilium et auxilium prestabit quocienscumque super hoc fuerit requisitas seu eciam quociens contigerit causam aliquam nos et ecclesiam nostram tangen tern in presencia sua ventilari. Et vt hec nostra donacio et carte nostre confirmacio firma et stabilis perseueret, sicut superius est expressum, confectum est hoc scriptum in modum cirographi, cuius vna pars etc. Datum Cantuarie in capitulo nostro xvi° kalendas Aprilis anno Domini m°.cc°.octogésimo tercio.7 It will be seen that Hengham agreed to help the monastery in the conduct of its general affairs and especially to give trustworthy assistance and advice whenever he was required to do so and whenever any legal action concerning Christ Church happened to come up before him. The question at once arises whether Hengham could reconcile his responsibilities to the monastery with his duties as a royal judge. How he squared one with the other, to what extent the honesty of his judgments was affected, we have no means of ascertaining in this particular instance. Luckily we have other evidence to show us Hengham 4 Cambridge University MSS., Ee. v. 31, fol. 19b. For a description of the register, eee the Catalogue of MSS. ii, p. 197. ' Thomas de Kingmere resigned on the Eve of Palm Sunday 1284 and was succeeded by Henry de Eaatria (Cotton MS., Cleopatra C. VII. fol. 15b; cf. Gal. Close Eolls, 1279-88, p. 323). • MS. sic. ' March 17, 1284. ' Vacat ' has been written in the margin to indicate that the entry had at some time been cancelled. Further down there is entered a ' litera pensionaría ' of 100 shillings a year on behalf of Solomon of Rochester, a prominent justice in eyre.

Medieval Judges as Le.f]nl Consultants.

IX 249

acting as both legal consultant and judge, and such a revelation of the mentality of the age deserves to be well noted. In .1290 Edith of Astley put forward a bill of complaint against Hengham, asserting that he had ' maintained ' one Andrew of Astley in his claim to the advowson of Astley in Warwickshire and plácito pendente 8 secured the presentation of Peter of Haverhill, one of his clerks. Hengham explained in great detail what exactly had happened. In the action upon the advowson judgment had been given in favour of Andrew of Astley. Two or three days later Andrew approached the judge and asked his advice whether he ought to present his brother John to the church, for he had already presented him once, only to find that the bishop deprived him and thereby caused the church to be void. Hengham replied that he would not advise that step because he was quite certain that the bishop would not admit John after so recently depriving him. He suggested that Andrew had better present someone who would be willing to resign without demur as soon as his brother, who had gone to the papal curia, had there proved his right to the church. Andrew declared that he knew no clerk whom he could trust to that extent and asked Hengham if he had a clerk who would without hesitation resign the church on such conditions. Hengham's answer was in keeping with his blunt character: he had no clerk who would not obey his orders and resign a benefice so impoverished as that of Astley. So it came about that Hengham's clerk, Peter of Haverhill, was presented and duly resigned the church when Andrew's brother returned from Rome to become its parson for the rest of his life. When John died, Andrew showed his gratitude for the complaisance of Peter of Haverhill by presenting him again. Hengham went on to say that, even if Peter had been presented plácito pendente, the statute of Westminster I, c. 28, would not have operated, for Peter was not a clerk employed on the plea rolls or in any way an official of the Coiirt: he was Hengham's factor and looked after the collection of his rents and had not been in Westminster Hall for a year. ' Indeed, the chancellor and the justices have many clerks whom the statute does not bind.' This incidentally provides a useful warning against a common assumption that a justice's clerk necessarily implies a clerk of the Court. The auditors of plaints were not satisfied with this explanation and summoned Peter of Haverhill before them to give his version * This was expressly forbidden by the Statute of Westminster I, c. 28 (Statutes of the Realm, i, 33 f").

IX 250

of events. He confirmed on oath much of what Hengham had said, adding more precisely that it was on the fourth day after the judgment that he was presented and that Andrew's brother had later obtained proper permission to be admitted to the church. John had then brought a formal action against him but had died during the course of the proceedings. It was news to him, however, that he had been presented again after John's death. In fact, Andrew had agreed to give the advowson to Edith of Astley and to see to it that her presentee was admitted; therefore he had asked Peter to resign in accordance with the terms of the agreement. This he had not dared to do until he had consulted his master. When Hengham instructed him to resign, inasmuch as his patron had requested him to do so, he had obeyed, receiving the consoling assurance from the judge that God would provide well for him elsewhere. Apart from the proof that a litigant was apparently as a matter of course turning to a judge for advice and obtaining it from him, this case gives an unusually intimate account of the fortunes of an advowson and this ecclesiastical historians can ill afford to miss.9 Another bill against Hengham, presented at the same time, supplies still more direct information. Nicholas de Veré and his wife declared that they had come to Hengham to seek his advice about obtaining the manor of Cokeham in Sussex, which was at the time in the hands of Robert de Yel though by right it belonged to them. Hengham asked how much they were prepared to give him for his trouble and, when Nicholas offered him a ploughland, the judge exclaimed that he would not go from his house to Westminster for merely that amount of land. Nicholas knew quite well that he could not implead Robert de Vel successfully if he dispensed with Hengham's advice and failed to secure his assistance and therefore he promised him a half of whatever he could obtain. And both he and his wife took a solemn oath before Hengham, John of Exeter and William his chaplain that they would faithfully keep to this agreement. Thereupon they brought their action by a writ of ' ael' against Robert de Vel, Hengham made his clerk, Peter of Haverhill, their attorney, and process went on for a year and a half. Then Robert de Vel approached Hengham and offered him two hundred marks for a favourable assize. The judge accepted the money and a jury gave a verdict against Nicholas and his wife, although the plaintiffs were absent at the 9 K. B. Writs and Returns (K. B. 138), no. 81 : printed in part in Sayles, op. cit. i, pp. cxlvi—cxlviii.

Medieval Judges as Legal Consultants.

IX 251

time and had not accepted the jiiry as constituted. Nicholas added that Hengham had given him fifty marks, presumably as a solatium, but he would do nothing more for him. Moreover, in another action of mort d'ancestor which Nicholas had brought in eyre against the abbot of Langley for the manor of Broome in Norfolk, the abbot offered him sixty marks to waive his claims and lose his suit. Nicholas did not accept the offer immediately but got proceedings postponed until he could get into touch with Hengham and discuss the matter with him. He therefore journeyed from Norfolk to London and was advised by the judge to let the verdict of the assize go against him. This in consequence he arranged to do, but apparently he never obtained the promised sixty marks and laid the blame for that on Hengham, whom he believed to be acting colhisively with the abbot. The auditors of plaints decided that there was a prima facie case against the judge on the first plaint but dismissed the second as having no substantial grounds.10 It is clear that contemporaries saw no incongruity in a judge of a Court placing his legal knowledge at the service of a prospective litigant. But contemporaries equally saw no harm in a judge of the king's bench being at the same time the king's attorney in that Court u , or in clerks of a Court acting as attorneys for private parties.12 Though every one of these practices was at one time or another considered an abuse,13 they went on for the most part unchecked. An easy way to corruption was certainly left open to the judges and the dangers were neither unforeseen nor avoided, as the well-known investigations begun in 1289 amply show. Yet nothing was done to remove temptation from the judges and, so long as the payment of their salaries was so frequently postponed,14 they could hardly be forbidden to sell their legal knowledge and skill to others than the king.15 The judges could save their patrons and clients lu 11 12

Exchequer, Parliament and Council Proceedings, file I, no. 7, in. 4. Sayles, op. cit. i, pp. ex—cxii; ii, p. xxv. Sayles, op. cit. i, pp. Ixxxvi, Ixxxvii. 15 The writer of the Mirror of Justices, p. 161, demanded that judges should not be prosecutors for the king and this practice was dropped (Sayles, op. cit. i, p. cxii). A petition temp. Edward II accused clerks, who acted as attorneys, of being guilty of maintenance (Sayles, op. cit. i, p. cxliv). 11 E.g. Eager Brabazon was paid for his services as chief justice of the king's bench between 1294 and 1306 on May 30, 1296, November 29, 1299, July 8, 1303, and December 8, 1306, though his salary should have been given him regularly at Easter and Michaelmas of every year (Sayles, op. cit. i, p. htxiii). 15 Thomas Wayland, chief justice of the common pleas from 1274 to 1269, was described in 1289 as ' the chief counsellor' of the Earl of Norfolk (Ancient Petition, no. 13379 : Sayles, op. cit. ii, p. cxxxviii). Eoger Brabazon looked upon Edmund of Lancaster and Blanche his wife as his lifelong ' patrons ' (Sayles, op. cit. i, pp. Iviii, Ixxvi).

IX 252

much expense by timely warnings and wise counsel; they might even arrange that the solempnitates cune, were not too strictly enforced. And those who paid for their services would expect them to be neither negligent nor ambidextrous. 16 But it is impossible to giiess how far their judgments were perverted. In 1346, according to Murimuth, 17 complaint was made that the judges were bound too closely to the lay and ecclesiastical magnates of the land by pensions and other gifts to be able to deal impartial justice. The same year the judges were required to swear that they would in no way accept gift or reward from any party to litigation before them or give advice to any man, great or small, in any action to which the king was a party himself.18 Presumably in order to compensate them for the loss of fees as legal consultants, the king ordained that their salaries as judges were to be adequately increased.19 This did not, however, prevent in 1350 the dismissal and sentence to death (later repealed) of William de Thorpe, another chief justice of the king's bench, on a charge of receiving gifts. 20 We may perhaps be permitted here to draw attention to a ' litera pensionaría ', made on behalf of a man greatly learned in the law of the cluirch, for it gives us the earliest information we have upon his life. Although Thomas of Cobham had the unique experience of being a graduate of three universities, in arts at Paris, in canon law at Oxford and in theology at Cambridge, though he was nearly appointed to the archiepiscopal see of Canterbury in 1313 and died as the bishop of Worcester instead in 1327,21 his early years are a sealed book and his recent biographer, Dr. E. H. Pearce, has assured us that there is ' no hope of recovering the details of his academic career ', 22 Since the first known reference to him was in 1288, when archbishop Pechara obtained for him the rectory of Hollingbourn in Kent, and since his age at death is unknown, Dr. Pearce was forced to conjecture the year of his birth. His first siirmise wasc. 1267-70.23 Since, however, Cobham was described in December 1291 as ' magister in decretis apud Oxoniam actualiter 16

The contemporary term for being in the pay of both sides. Continuatio Chronicaruin (Eolls Series), p. 245. 18 Statutes of the Realm, i, p. 305; Gal. Close Eolls, 1346-49, p. 64. 19 Statutes of the Realm, i, p. 303 f.; Cal. Close Rolls, loc. cit. 20 Gal. Patent Rolls, 1350-54, pp. 30, 61 f . ; Gal. Close Rolls, 1349-54, p. 277; Foss, Judges of England, s.v. 21 Dictionary of National Biography, s.v. 22 E. H. Pearce, Thomas de Cobham, Bishop of Worcester, 1317—1327, p. 5. -' Loc. cit. 17

Medieval Judges as Legal Consultants.

IX 253

tune regens V* a degree which he was not likely to have obtained before the age of thirty, Dr. Pearce later suggested that he was born c. 1260 or 1261." It is probable, however, that even this date is much too late. For in 1284 the prior of Christ Church, Canterbury, gave him a pension of five marks a year for services rendered in the past and to be rendered in the future: so far as it lay within his power he was to ' promote ' the prior's causes. Maybe his main duty was to give from his knowledge of canon law the lines on which his patron should proceed before becoming involved in courts Christian or the papal curia. And already the possibility was envisaged of Thomas of Cobham becoming a bishop, for the pension was to cease automatically with that advancement. Now, if Cobham was born in 1260 or 1261, he would have been only twenty-three or twenty-four years old when he was asked to act in this responsible way and when a bishopric seemed likely at no distant date. It would, therefore, seem more probable that he was born in the middle 1250's. In that case he was about seventy-two when he died in 1327, a year when Thomas himself referred to the great frailty of a man so old as he was. Whatever be the truth of the matter, the subjoined document 26 testifies to the practical use to which a legal education could be put. Litera pensionaria Thome de Cobehani. Vniuersis presentes litteras visuris vel audituris Thomas, permissione diuina etc., salutem etc. Nouerit vniuersitas vestra quod nos concessimus dilecto nobis in Christo magistro T. de Cobeham, clerico nostro, pro suo fideli et diligenti seruicio quod nobis hactenus prestitit et in posterum prestabit, annuam pensionem quinqué marcarum, annuatim percipiendarum in thesauraria nostra apud Cantuariam in quindena sancti Michaelis. Et idem prefatus magister Thomas, sacramento corporaliter prestito in capitulo nostro, obligauit se nobis ad promouendum sumptibus nostris causas nostras et negocia nostra contra quascumque personas, quatenus sua fidelitas et honestas permittant, quocienscumque a nobis fuerit requisitus et opportunitas eidem inciderit. Preterea obligat se magister Thomas quod secreta et concilia dicti capituli Cantuarie per prefatum iuramentum plenius conseruabit et nulli omniiio homini ad dampnum seu dedecus dicte ecclesie seu personarum eiusdem reuelabit in 14 35

Snappe's Formulary (Oxford History Society), p. 47. Register of Thomas Cobham, Bishop of Worcester (Worcs. Hist. Soc.), ed. E. H. Pearce, p. vii. " Cambridge University MSS., Ee. v. 31, fol. 19b.

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perpetuum. Si vero contingat prefatum magistrum Thomam ad episcopalem dignitatem euocari, cessante dicta pensione cum illa obligacione qua dicto magistro Thome sumus obligati, que extunc vacabit, cassum sit hoc instrumentum, irritum et inane. In cuius rei testimonium etc. Datum Cantuarie in capitulo nostro xv° kalendas Aprilis anno Domini m°.cc°.lxxx°.tercio.

X The Seizure of Wool at Easter 1297 THE political crisis in 1297 has been recently discussed in detail in this REVIEW,1 and other interpretations of what occurred have been given elsewhere.2 This note is not intended to reopen the question, though it may perhaps be remarked in passing that the case for the barons against the king does not seem to have been sufficiently examined in the light not of law but of practical politics, which in times of great upheaval are likely to treat legal considerations as irrelevant and discardable. The document printed below draws attention, first of all, to action on the part of the government which has not been brought prominently into the argument3 and, secondly, places a writ, important in its implications for the rights of the individual against the state, some fifty years earlier in its origins than the available evidence has hitherto permitted. Some time in Lent 1297 4 an ordinance was made for a ' prise ' of wool and hides throughout the country ' for the king's use'. The consequent writ ordered them to be put into saleable condition and conveyed to the ports assigned to serve the various regions by a week after Easter (21 April).5 Should anyone fail to obey instructions he ran the risk of imprisonment and the confiscation of his wool when found,6 and officials were appointed 1 J. G. Edwards, ' Conßrmatio Cartarum and Baronial Grievances in 1297 ', ante, Iviii (1943), 147-72; 273-300; H. Rothwell, 'The Confirmation of the Charters, 1297', ante, lix (1945), 16-36; 177-92; 300-15. 2 E.g. B. Wilkinson, Constitutional History of England, 1216-1399 (1949), i. 187-232. 8 Professor Edwarda has alluded to it briefly on the basis of chronicle evidence in his table of imposts (ante, Iviii. 158) but it finds no place in the discussions of either Professor Rothwell or Professor Wilkinson, nor is it included in the detailed list of ' National or Semi-National Prises, 1296-1306 ', given in W. S. Thomson (ed.), A Lincolnshire Assize Boll for 1298 (Lincolnshire Record Society : 1944), p. Ixxiv, with which of. pp. 181-2. The late Professor S. K. Mitchell seems to have confused what happened at Easter with what happened in and after July as though it were all part and parcel of the same act (Taxation in Medieval England., p. 361). 4 Hemingburgh, Chronicon, ed. H. C. Hamilton (Eng. Hist. Soc. : 1848-9), ii. 119 ; Aúnales Monasíici (Worcester), iv. 531, which gives the date as 20 April. B Cal. Close Bolls, 1296-1302, pp. 108 f. ; L.T.R. Memoranda Roll, no. 65 (25 Edward I), m. 44 (Easter Commtmia). 6 Hemingburgh, loc. cit.

X 544

SEIZURE OF WOOL AT EASTER 1297

to see that the order was carried out.1 Unfortunately we do not know the exact terms of this ordinance, though we are informed that it had been promulgated with the foreknowledge of the king.2 Presumably it affected all merchants, both native and foreign, and we may infer from the evidence that, whilst native merchants would pay customs, foreign merchants were to have then* stocks removed from their possession. The ordinance certainly stated explicitly that the wool of native merchants would not be seized.3 However, the deputy treasurer and barons of the exchequer came to the conclusion that the amount of wool envisaged by the ordinance would not be obtained. Therefore they deliberated in the exchequer with Hugh Despenser, John of Droxford, keeper of the wardrobe, and others of the king's council, and it was agreed that another ordinance should be issued for the seizure of the wool of well-to-do and particularly wealthy native merchants in accordance with the procedure (the modum, not the forma) of the first ordinance. Even then it was noted with regret that the desired total could not be reached.4 A chronicler is presumably referring to this second ordinance when he declared that, where more than five sacks of wool was brought to the ports, the excess was to be retained for the king's use and a tally given in token of future payment and, where less than five sacks was involved, customs duty at the rate of 40 shillings a sack was to be paid instead.5 It was one thing to continue to pay the heavy customs duty, the ' maltote ' of 1294, or to watch the appropriation of the property of aliens. It was quite another thing when the native merchants found that they were being compelled to hand over their own stock-in-trade as a forced loan. They strenuously opposed the decision of the government, not perhaps so much on account of its arbitrary nature—for the issue of how far the prerogative of prisage in kind should extend was too wide, too complicated for their handling—as because it ran counter to what they had been led to expect. So, when the merchants of Sandwich found that the wool they had collected at London in obedience to the royal writ had been seized by the king's agents, they sent a protest to the king, which was forwarded on 18 Col. Close Rolls, 1296-1302, pp. 108 ff.; Ármales Monastíci, loe. cit. : complaint was made that the humbler folk, because they used their own wool to make clothes for themselves, were being arrested for lese-majesty. 2 Cal. Close Soils, 1296-1302, p. 111. 3 Út supra Ancient Correspondence, xxvii. 193 : printed below, pp. 546-7. 4 Prosecutions in cases of concealment of wool are naturally common (L.T.R. Memoranda Roll, no. 68 (1297), m. 43 (Easter Communia) ; m. 40 (Trinity Communia)). 6 Hemingburgh, ii. 119 ; cf. Trevet, ' Annales ', ed. T. Hog (Eng. Hist. Sac. 1845), p. 354. 1

SEIZURE OF WOOL AT EASTER 1297

X 545

x

May to the treasurer and barons of the exchequer for their consideration. They, in their turn, wrote to the chancellor on 28 May to explain why it had been thought necessary to extend the scope of the first ordinance and to ask him to obtain the king's decision in the matter.2 A week or so later the king declared that he had heard nothing and knew nothing about the second ordinance: if wool had been seized it should only have been on the ground that it had not been sent to the authorized place within the stipulated time-limit.3 If, therefore, the wool of the Sandwich merchants had been seized in virtue of the second ordinance, it was to be restored to them. Nevertheless, they were to pay customs on it and tranship it overseas by Midsummer or it would be forfeited.* Now, the order for a prise of wool in May 1294 had been transmuted by the following July to the imposition of a heavy export duty instead. That ' maletote' had to be paid, and doubtless in the space of three years the merchants for their part had been able to make suitable adjustments so that they were not the losers.6 It was not the ' maltote ', but the renewed threat of a completely arbitrary prise at Easter 1297, that aroused resentment to fever heat again in all parts of the country. Would the method of the prise be used once more to extract still higher rates of custom 1 In fact, it was eventually decided on 30 July 1297 to seize 8000 sacks of wool, which were to be sold to provide ready money, whilst the owners waited patiently to receive payment from the proceeds of general taxation as it came in.6 The experiment whereby the government acted as buyer and seller was no more happy than it was found to be in the disastrous experiment of 1338, and on 15 November, ten days after the Confirmatie Cartarum,' it was decided at a council meeting in the exchequer that, since the seizure of wool was causing the 1 L.T.R. Memoranda Roll, no. 68 (25 Edward I), m. 44. For a similar complaint from the same merchants concerning wool seized at Norwich, see oal. Close Rolls, 1296-1302, p. 108. For the complaints of others, see ibid. pp. 109 ff. * Below, p. 547. This letter has been copied on to the memoranda roll (no. 68, m. 44). s Of. the events in the following August, when the barons accused the exchequer on 22 August of seizing wool unknown to the king. * Col. Close Bolls, 1296-1302, p. 111. 6 E. Power, The Wool Trade in English Medieval History (1941), pp. 77 ff. 6 On 15 June 1297 the king instructed Hugh Despenser, John of Droxford and the barons of the exchequer to send messengers in haste to all places where customs were paid to find out how much wool and leather had been collected for export. The information was to be available by 1 July, at the latest, so that the king could be better advised when he discussed matters with them on his return to London (L.T.R. Memoranda Roll, no. 68, m. 50 (Trinity Communia)). 7 The confirmatio was sealed on 5 November 1297. On 23 November the sheriffs were authorized to proclaim that merchants were no longer to pay the ' maletote ' of 40 shillings but the usual custom, agreed on in 1275, of 6s. 8d. (L.T.R. Memoranda Roll, no. 69 (28 Edward I), m, 27 ; of. m. 107 : instructions to this effect had gone out to the sheriffs on 15 November).

X 546

SEIZURE OF WOOL AT EASTER, 1297

king a dead loss when freight was added to the cost, therefore no more was to be taken and the wool was to be left with the owners to do with it as they wished.1 The protest against administrative action, taken to satisfy the king's financial needs without regard to the political aftermath, was made through a writ of audita querela. It has been observed recently that this writ ' unhappily has escaped the notice which it deserves ', though Professor Plucknett found no illustration of its use before 1338.2 The audita querela permitted complaint to be made to the king concerning error, deceit or fraud which could not be normally remedied by the ordinary processes of the courts. It did not furnish a relief in equity but simply provided a method of getting the courts to act when otherwise they were unlikely to do so. Thus the merchants of Sandwich could not obtain redress by the normal routine of the law for what they felt to be wrongful administrative action. The connexion of the audita querela with petitions and with chancery jurisdiction has still to be ascertained. In the meantime, it is satisfactory to discover the use of the writ as early as 1297.

ANCIENT CORRESPONDENCE, XXVII. 193 Venerande discrecionis viro domino lohanni de Langetone, illustris regis Anglie cancellario, sui Philippus de Wylugby, tenens locum thesaurarii, et barones de scaccario ipsius domini regis, salutem et prósperos ad vota successus. Mandauit nobis serenitas reuerenda domini nostri domini regis predict! quod, audita querela Thome de Schelmingg', mercatoris de Sandwico, et sociorum suorum eiusdem ville de lanis ipsorum Londoniis inuentis et per dilectos et fideles ipsius domini regis Radulphum de Sandwico, lohannem de ínsula, Henricum Spigurnel et lohannem de Bauquell' ad opus eiusdem domini regis, vt asserunt, arestatis et eis detentis contra formam ordinacionis facte de lanis arestandis in regno Anglie ad opus domini nostri regis predicti, eisdem mercatoribus inde remedium et celerem iusticiam, quatenus nobis constare posset, ita esse fieri facer emus iuxta formam ordinacionis predicte, super quo sciat discrecio vestra reuerenda quod, licet in prima ordinacione f acta de lanis arestandis, vt predictum est, ordinatum esset quod lane mercatorum indigenarum arestate non fuissent, pro eo tarnen quod per ordinacionem illam ad summam lanarum prouisam attingi non potuit, per dilectos et fideles predicti domini nostri regis illustris Hugonem le Despenser, lohannem de Drokenesford' et alios de consilio ipsius domini regis nobis in scaccario suo 1

L.T.R. Memoranda Roll, no. 69, m. 21. T. F, T. Plucknett, Legislation of Edward I, p. 145. The writ had been dated as 1282 by Lord Cooper in his Register of Brieves (Stair Society : 1946), p. 17, but apparently without documentary authority (ante, Ixii. 544): the guess has turned out to be very near the truth. 2

SEIZURE OF WOOL AT EASTER 129?

X 547

predicto assidentes concordat/urn fuit et prouisum quod lane mercatorum indigenarum sufficiencium et precipue distiorum,1 infra regnum predictum existentes, ad opus predict! domini nostri regis arestarentur iuxta modum prime ordinacionis predicte. Et pretextu huius ordinacionis nouissime lane predictorum Thome sicut et aliorum mercatorum. indigenarum arestantur et adhue ad summam predictam attingeie non possumus. Quo circa vos rogamus quatinus domino nostro domino regi predicto Mis ostensis nobis sub sigillo vestro quod idem dominus noster inde duxerit ordinandum significare dignemini. Válete. Scriptum apud Westmonasterium xxviij. die Maii. 1 MS. sic. The same form is given in the enrolments on both the chancery roll and the exchequer memoranda roll.

NOTES 543, 1.2 For Review read Eng. Hist. Rev. n.3 For ante read Eng. Hist. Rev.


XI Parliamentary Representation in 1294, 1295, and 1307. THE subjoined documents have come to light in recent years at the Public Record Office, where they are included in the class of records known as Parliament and Council Proceedings. They supplement our very defective knowledge of the personnel of parliament in the reign of Edward I.1 The first relates to the parliament held 12 November 1294, for which no writs and returns have hitherto been found. 2 On 8 October writs were sent to the sheriffs commanding the election of two knights for each shire, who were to come with full power both for themselves and for the whole community ad consulendum et consenciendum . . . hiis que Comités Barones et proceres predicti concorditer ordinauerunt. On the following day a second writ was despatched ordering the return of two additional members, but these were not required to possess plenam potestatem and were called simply ad audiendum et faciendum quod eis tune ibidem plenius iniungemus. The very urgent financial needs of the king at this time provided the motive for the assembling of this parliament, and on the opening day appointments were made of assessors and executors of the tenth on movables granted in subsidium guerre. A list of those charged with this duty is to be found on the Patent Roll,3 and its collation with the parliamentary return for Buckinghamshire and Bedfordshire shows definitely for the first time that the knights returned in obedience to the second writ were intended to act in the capacity of tax-collectors.* The Patent Roll list 1 It has long been obvious that the Official Return of Members of Parliament stands in urgent need of correction and amplification in the light of the vast mass of additional information which has been slowly accumulated during the last fifty years ; cf. Eng. Hist. Rev. xxxix. 511-525, and A. B. Beaven's list in Aldermen of London, I. 261 et ¡eq., II. 222-3, for good illustrations of the value of local records in filling in the gaps which occur in public records. Much work of this character has been done at the Institute of Historical Research; see, e.g., a London University M.A. thesis, The Personnel of Parliament under Henry IF. (summarised in the Bulletin ii. 88). See also the appendix to a thesis by W. S. Dann presented in 1911, Parliamentary Representation in the Sixteenth Century, where the incomplete information contained in the Official Return for the first parliament of Edward VI. is supplemented by reference to an almost complete list in the Hatfield MSS., vol. i. No. 216. 2 3 Parí. Writs, I. i.; Official Return, p. 3. Cal. Pat. Rolls (1292-1301), pp. 103-4. 4 Thus Robert Barre and Almaricus de Nowers act for Buckinghamshire and William Hotot and Richard Gobion for Bedfordshire. A suggestion to this effect was made by Mr. J. J. Alexander in Trans. Devon Assoc. xliv. 374.

Parliamentary Representation

XI 111

cannot be taken as representing a body of men entirely differing in personnel from those who came in answer to the first writ, as William of Luton and Robert Pugeys, who came for the purposes of deliberation and consent, went away as collectors for Berkshire and Oxfordshire respectively. The second document is the parliamentary return for Norfolk and Suffolk to the famous ' Model' Parliament of 1295. Transcripts of the writs and returns for thirty-five counties were made by William Petyt and were printed from his MSS. in the Inner Temple Library by Palgrave.1 This writ escaped Petyt's notice, and to this we can attribute the fact of its sole preservation whilst the other original writs have disappeared. It provides us with our earliest evidence for the parliamentary representation of Norfolk and Suffolk, completes the returns, and corrects the statements and statistics given by Pasquet.2 It is stated that no original writs and returns are extant for the parliament which met at Carlisle in January 1307.' This is not correct, as a collection relating to thirty-five counties is to be found at the P.R.O.* Only Northamptonshire and Wiltshire find no place in it, though the return for Surrey and Sussex is unaccompanied by its writ and the return for Somerset and Dorset has become detached and is to be found elsewhere.5 Otherwise the fullest information is given for correcting the statements of the Official Return. The writ to the sheriff of Cumberland has the names of the county members endorsed on it as' John de Dentón and William de Langerigg'. In the enrolment of the writs de expensis 6 their names are given without stating for what county they came.7 They were appropriated to Cumberland in the Notitia Parliamentaria 8 and this was followed with some hesitation by Palgrave.8 Doubt on this point is now dissolved. In addition the writ gives the names of two members who represented Carlisle.10 The return for the county of Westmorland differs from Par!. Writs, I. 34-45. Essai sur les Origines de la Chambre des Communes, p. 113. A little-known copy of this return is to be found at the British Museum in Add. MSS. 25459, f. 50, but it has many mistranscriptions and frequent lacunae which can be filled in from the P.R.O. original. Reference is made to it by R. H. Mason in his History of Norfolk, p. 69, but he has unfortunately made the confusion worse by distorting the name of John Wyth, the member for Great Yarmouth, into Wythman, an error due to his attaching man', the usual contraction for manucaftores, to Wyth. 3 Parí. Writs, I. i.; Official Return, p. 24. * Parí, and Counc. Proc., Exch., 1/21 (32 ms.). 5 Ibid., Roll ia. « Cal. Close Rolls (1302-7), p. 524 ; Parí. Writs, I. 190-1. 7 Prynne has no reason for his assertion that the name of the county is not legible, Parí. Writs, 9 IV., Pt. I. p. 25. 8 II. 183. Parí. Writs, I. p. vi. 10 The writ had to be treated with gallic acid before it was possible to decipher this part of the endorsement: nomina ciuium Karl'. Edmundus de Boundon' per Reginaldum Bonkes et Andream le seriaunt. Ricardus Soreys per Reginaldum Bonkes et Andream le seriaunt. 1 2

XI 112

in 1294, 1297 and 1307

the Officia/ Return in that John Corour is given as one of the representatives of Appleby (the endorsement itself reads only nomina burgensium) instead of John of Carlisle.1 It is not surprising that there is said to have been no return made for Westmorland,2 as the writ is endorsed Istud breue deliberatum futt •vicecomiti die Sabati próxima ante conuersionem Sancti Pauli apostoli (22 Jan.), and the parliament assembled 20 January.3 The return for Oxfordshire and Berkshire is extant and tallies with the Official Return * ; that for Yorkshire is endorsed with the name of John de Neuton.5

Parí, and Counc. Proc., Exch., File i, No. 9.* Nomina quatuor militum de Comitatu Buk'.

Robertus Pugeys 7 miles manucaptus est per

Hugonem de Wexham. Ricardum Lambard de Stoke. Johannem atte Lee de eadem. Willelmum atte Welle de eadem. Ricardum atte Oke de eadem et Willelmum le Chapeleyn de eadem.

Johannem Warin de Hertwelle. Adam le Jofne de eadem. Willelmus de Luton miles manucaptus est per Ricardum Wynter de eadem. Willelmum de Wynter de eadem. Willelmum de Mortone de Hertewelle. Rogerum le spenser de eadem.

Robertus Barre 8 miles manucaptus est per

Robertum le caretter de Stauntone Barry. Thomam du Freyne de eadem. Walterum atte Watere de eadem. Andream de Stauntone de eadem. Willelmum Dynnok de eadem et Thomam Barun de eadem.

Official Return, p. 26. Ibid. p. 26, note. 3 Cambridge and Huntingdon received their writ on 6 December; see note on dorse of writ, venit hie x Decembris. * Official Return, pp. 24, 25, notes. 6 Ibid. p. 26, note. Cf. Parí, and Counc. Proc., Chanc., 68/4, for a contemporary partial list of members. It gives the names of the county members for Oxfordshire and Berkshire, but not for Westmorland and Cumberland. Nor does it supply any information concerning Northamptonshire and Wiltshire. 8 The first two membranes are the writs, for which see Parí. Writs, I. 33. 7 Stoke Pogys or Pogis derived its distinctive name from his family. 8 Cf. the manor of Stanton Barry or Bury. 1 2


XI 113

Johannem deceykeford de Lathebury, Johannem Roger de eadem. Almaricus de Nowers miles manucaptus est per Willelmum de Bouenestone de eadem. Robertum de Stok de eadem. Hugonem Neweman de eadem. Willelmum Ie Bek de eadem. Nomina quatuor militum de Comitatu Bed'.

Willelmus de Hotot miles manucaptus est per

Radulphus de Goldintone miles manucaptus est per

Ricardus Gobyon1 miles manucaptus est per

Robertus de Ho miles manucaptus est per

Willelmum Osebern de Melebrok' Johannem Osebern de eadem. Hugonem Isaac de eadem. Johannem le Messer de eadem. Thomam Syward de AmpthuH'. Radulphum le Berther de eadem. Nicholaum Bouetoun de Goldintone. Willelmum le Lokere de eadem. Radulphum Wygeyn de eadem. Galfridum le Lokere de eadem. Henricum le Warde de eadem et Fulconem Gustard de eadem. Adam Aleyn de Hegham. Johannem le Feuere de eadem. Robertum le Longe de eadem. Johannem Wylegod de eadem. Johannem Heued de eadem. Stephanum Wyther de eadem. Willelmum de Ho de Lutone. Petrum de Kyngewyk' de eadem. Alexandrum Geffrey de eadem. Alexandrum Baud de eadem. Simonem atte Heye de eadem. Simonem Fardel de eadem.

Parí, and Counc. Proc., Exch., Roll 9.* Nomina militum Comitatus Norf'. Dominus Willelmus de Kirdeston' cuius manucaptores

Johannes Fale. Jocelinus Wolflet. Johannes le Rede. Thomas S.. e..

The last member of the family to be lord of the manor of Higham-Gobion (pb. 1300). - For the writ see Purl. Writs, I. 33. 1

XI 114

in 1294, 1295 and 1307

Dominus Johannes de Cokef [eld] cuius manucaptores

Thomas ad S.. em. Johannes le Walur. Rogerus Briddeu. 1.. Galfridus de Ride.

Nomina militum Comitatus Suff'. Johannes Jeudewyn' Dominus Nicholaus de Wylaund cuius Ricardus Krel. manucaptores Robertus Blaky. Stephanus Alflet. Dominus Rogerus de Soterlee cuius manucaptores

Johannes Lestenman. Walterus Lestenman, Thomas Lestenman. Johannes C .. lu de Soterlee.

Nomina cyuium Norwyc'. Willelmus Bat. Galfridus le Clerk cuius manucaptores Rogerus de Tudenham. Thomas de Earlham. Petrus Flynt. Johannes de Hekingham cuius manucaptores

Thomas de Hekingham. Ricardus de Hekingham. Ricardus de Pulham. Johannes de Elham.

Nomina Burgensium Lenn'. Hugo de Massingham. Johannes de Sancto Omero cuius Ricardus de Docking.1 manucaptores Galfridus le palmere. Johannes Bretun. Ricardus de Docking cuius manucaptores

Johannes de Sancto Omero. Johannes Borhorn. Walterus de Talneye. Jacobus Aurifaber.

Nomina Burgensium Gyppewyk'.2 Johannes Thurstan. Thomas Stace cuius manucaptores Thomas de Meleford. Christoforus Haltebe. Nicholaus le Clerk. It was a common practice for members to stand as manucaptores for other members. Hitherto 1298 has been regarded as the first occasion on which Ipswich returned members. Norwich, Lynn, and Great Yarmouth were represented at the Michaelmas Parliament at Shrewsbury in 1283. 1 2

XI 115


Nicholaus Ie Clerk cuius manucaptores

Thomas Stace. Johannes filius Galfridi. Thomas le Scry. . . . Christoforus Haltebe.

Nomina Burgensium de Gernem' Johannes Wyth' cuius manucaptores

Henricus le Rus cuius manucaptores

Thomas Fastolf. Laurencius de Munslee Eustachius Batalie. Willelmus de Carleton. Eustachius Batalie. Willelmus de Carleton. Laurencius de Munslee. Thomas Fastolf.

Pro Burgo de Sancto Eadmundo returnatum fuit istud breue senescallo libertatis Sancti Eadmundi eo quod ipsi de eodem burgo non habent returna breuium et idem senescallus nichil inde mihi respondit.1 Pro Burgis de Donewyco et Orford returnatum fuit istud breue Balliuis Burgorum illorum eo quod habent retorna breuium et nichil inde mihi responderunt.2 1 In 1302 Bury St. Edmunds again failed to make any return and received no further summons; Parí. Writs, I. 123. 2 Both these boroughs returned members in and after 1298.

XII The Parliament of Carlisle., Iôy—Some New Documents HE documents to which this article calls attention appear,

Tfor the most part, to be entirely unknown to historians. They are valuable, on the one hand, for the light they throw upon the question, ' What interest had the public of the day in medieval parliaments ? ', a problem which is as difficult as it is important to answer. And, on the other hand, they throw light upon some of the obscurities of parliamentary procedure at a period when every scrap of knowledge we can gain is precious ; for until we know in detail how parliament functioned, we shall remain on the unstable ground of conjecture and surmise. The series of documents with which we are first concerned comes from a register of Whalley Abbey, British Museum, Additional MS. 10374. This ' commonplace book ', as they termed it, was drawn upon extensively by T. D. Whitaker and his editors for the History of Whalley.1 But monastic registers, as a class, have not attracted attention as a source for general and constitutional history, and this volume is no exception. It may be well, in the first place, to say something of the volume itself. The manuscript, as it exists to-day, probably includes portions of more than one medieval book, for its contents are far from homogeneous, and before it was put into its present binding, the quires had evidently been dislocated. The first leaves of the register proper (which seems originally to have been commenced as a formulary) begin at what is now folio 60, and other portions follow in no kind of order. The preceding part of the volume consists largely of sermons, which can hardly have been intended for a monastic register, surprising as the contents can sometimes be ; and folios 12-16, from which our documents are taken, are different in appearance from any other quires, nor should we expect to find them among a collection of sermons. The writing, however, of these particular folios appears to be that of a scribe who was responsible for at least some of the first leaves of the register, and we seem justified in believing that our documents were copied in Whalley Abbey early in the fourteenth century. It is possible, indeed, that the volume was put together 1

Fourth edition (1872-6), i. xi. 149-83 ; n. xvi.

XII 426

THE PARLIAMENT OF CARLISLE

at Whalley, late in the middle ages, from remnants of books that had fallen to pieces and that its present condition is not due to post-Reformation neglect. With these preliminaries let us look at the documents themselves, which it will be convenient to take in reverse order. The fourth (D) is a copy of the letter to the English Church from ' Petrus filius Cassiodori ' which, we know, was circulated at Carlisle and which has been many times printed.1 The third (C) is the statute of Carlisle, without the notes of its transmission to sheriffs and others to be found in the Vetus Codex and the Statute Roll.2 The second (B) is a version of the petitions presented to the king at Carlisle by the earls, barons, and the community of the land : this we print and comment upon below. The first (A), which we also print, is a statement of the points of ecclesiastical law upon which the pope makes his own interpretation to the prejudice of the king and the magnates, who are described as the founders and patrons of the whole of the English Church. All the points in dispute concern first-fruits, and the document is evidently connected with the Latin version of the grievances of the earls, barons, magnates and community of the realm, which was entered on the parliament roll,3 one paragraph of which refers to first-fruits and the pope's 'interpretaciones ',* a word that does not appear in the French petition on the subject. No other copy of this document seems to have come to light. Of the three documents, the second (B) is of the greatest interest. It is not a corrupt version of the petitions as they were entered on the parliament roll, but a different and, as we believe, an earlier version. The later version is divided into nine paragraphs,5 five of which correspond closely, though not literally, to paragraphs in the earlier version. But there is nothing in the earlier version relating to provisions, which is the chief subject of the first paragraph of the later version ; nor is there anything relating to intestacy, as in the third paragraph, nor to the collusive recovery of debts, as in the fifth paragraph, nor to Peter's Pence, as in the ninth and last. On the other hand, the earlier version has a paragraph on general bequests for the poor, no trace of which is found in the later version. Two other points should be noted : a concluding paragraph in the earlier version, 'Goldast, Monarchia, i. II f.; Foxe, Acts and Monuments (4th ed.), ii. 610-12 ; Prynne, Exact Chronological Vindication, iii. 914-16 ; Hemingburgh, Chronicon (ed. Hearne), i. 227-31 ; (ed. Hamilton), ii. 254-9. 2 Ryley, Placita Parlamentaria, pp. 312-14; Rot. Parí. i. 217-18 ; Statutes of the Realm, i. 150-2. 3 As we explain below, for our knowledge of the parliament roll we are mainly dependent on the Vetus Codex. 4 Planta Parlamentaria, p. 380 ; Rot. Parí. i. 221a. 5 Vetus Codex, fos. 1486-150a. It should be noted that the printed texts in Placila Parlamentaria, pp. 376—9, and Rot. Parí. i. 219-20, are far from exact.

THE PARLIAMENTOF CARLISLEXII 427 praying the king to provide a remedy, is replaced by a more elaborate introductory sentence in the later version ; and much of the fourth paragraph of the earlier version has been omitted from the corresponding sixth paragraph, the substance having been embodied in the first paragraph of the later version.1 At this point we should perhaps make it clear that there is no possibility that the earlier version was presented at an earlier parliament and disinterred to provide the basis for the petitions of Carlisle. Both versions arise out of the same incidents and both mention master William Testa. Testa's career in England has been detailed by Professor Lunt.2 He arrived by é October 1305, but not much before this date ; he was not appointed a papal collector until 1306 and began to execute his commissions about the end of May in that year. Although an assembly, which seems to have been a parliament, was held in that month, it is impossible that the grievances aroused by Testa's activities should have come to a head so soon ; and since there was no parliament between May 1306 and Hilary 1307, when the parliament of Carlisle assembled,3 we are left with no alternative occasion for which petitions in such terms could have been prepared. For the preparation of two versions of a series of petitions to the king from the community of the realm, we are not without a parallel. At the first parliament of Edward III there was presented a like series of petitions, of which we have an earlier version,4 and this version was altered and supplemented in much the same fashion as the petitions of Carlisle. One such occurrence would be remarkable, but might be exceptional. Now that we know that the same procedure was followed on two occasions, there is less likelihood that it was exceptional. It may not have been unusual, even in the early decades of the fourteenth century, for common petitions—if we may use this generic term—-to be debated and submitted to a second reading before presentation to the king. There is evidence that as early as 1285 the petitions of the clergy were the subject of elaborate discussion with a committee of the council and that as a consequence some were redrafted : 5 again we do not press the parallel, but it is certainly suggestive. So much we may say to indicate the setting in which these petitions should be regarded. We shall need to discuss on some other occasion how much part the ' commons ' had in framing the petitions of 1307, and whether the earls and barons are to 2 See footnotes to the text below. Ante, xli. 332-57. BuU. Inst. Hist. Research, v. 147, 154. 4 Richardson and Sayles, Eotuli Parliamentonim Anglie Hactenus Inediti, pp. 100-3, 116ff. ' Ante, lii. 220, 226. 1 3

XII 428

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PARLIAMENT OF CARLISLE

be included among the ' bone gent de la commune ' who presented the petitions of 1327.1 How came these documents to be circulated ? There is sufficient evidence to show that in 1327 collections of interesting documents connected with the revolution were written on small rolls for general information.2 This seems to have been done unofficially, quite possibly as a matter of commercial enterprise ; but at any rate those interested could in this way be kept informed by friends or correspondents, and were provided with something better than public gossip and common rumours. One of these rolls of 1327 contains the earlier version of the common petitions and is evidence enough that, whoever was responsible for the compilation, overmuch care was not taken to obtain the best or the most authentic documents, nor, we may add, to copy them very accurately. Now let us imagine some one at Carlisle collecting information to send to an interested friend : that some one might even be a royal clerk and the friend in a religious house. Discarded drafts, documents not to be enrolled, are likely to be come by more easily than corrected versions and fair copies ; and if the friend wishes to be generally informed and not precisely informed on all details, the material that is easily collected may serve his purpose well enough and may reach him more speedily than documents in their final and authoritative form. In some such manner we can account for documents (A) and (B). Document (A), as we have indicated, seems evidently to lie behind one paragraph of the parliament roll, although it was not thought necessary to enter it in detail. Document (B) was discarded and, we may safely presume, never reached the hands of the clerk who wrote the roll. Of document (C), the Statute of Carlisle, copies were made in large number, and there was every intention that it should be easily accessible.3 We cannot exclude the possibility that these documents were collected by some one in attendance at the parliament of Carlisle, who took them home with him ; but, if so, that home was not, we think, Whalley. For the abbot was not regularly summoned to parliament and there is no reason to suppose that he attended parliament in 1307.4 1 Rot. Parí. ii. 7. This is the phrase which replaced ' la communalte du roialme ' in the earlier version. a Bichardson and Sayles, op. cit. p. 100 ; Hull. Jnst. Hist. Research, xiv. 146. 3 Copies were sent to a number of religious houses in England and Wales, but neither Whalley nor Stanlaw is mentioned in the list on the statute roll (Statutee of the Realm, i. 152). 4 The abbot of Stanlaw was summoned to parliament in 1295, 1296, 1300, 1301, and 1305 (Parí. Writs, i. 30, 33, 48, 84, 89, 137) : the convent migrated during this period and writs addressed to Stanlaw were answered from Whalley (Whitaker, History of Whalley, i. 151). Although the abbot had been summoned in the first instance to

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The circumstances in which document (D) passed into circulation are described by Walter of Hemingburgh. ' In the aforesaid parliament', he tells us, ' when many were saying many things of the oppressions which the lord pope had introduced into the English Church, lo ! suddenly, as if it came from heaven, this writing appeared in a public meeting of the council; and immediately it was read, for the king, the cardinal, all the prelates, And every one else in attendance, to hear '.* Hemingburgh then proceeds to copy out this letter from Peter son of Cassiodorus 2 and also, what is important for our present purpose, a version of the document which, in the Vetus Codex, follows the petitions of the earls, barons, and community. This document is a Latin summary of the grievances, followed by an account of the examination of Testa in parliament and the action taken as a result. Hemingburgh's version presents a good many differences from -the Vetus Codex text and the probabilities are that, like the Whalley version of the petitions, it represents a preliminary draft.8 If so, and there seems little doubt in the matter, there came from Carlisle to Gisburn Priory a very similar collection to that which came to Whalley Abbey. Now, although the prior of Gisburn had been summoned to parliament in 1295 and 1299, there is no evidence that he was present at Carlisle,4 and we have no reason to suppose, therefore, that this collection of documents was brought back by one in attendance at parliament. It is likely, therefore, that for his knowledge of what took place, the chronicler was dependent upon written information, and that he had before him not only the documents he reproduces but also another •document, the nature of which it will be convenient to discuss later. At this point let us say that the evidence seems to point plainly to the circulation in 1307, as in 1327, of small collections •of documents on the burning question of the day, which, to members of any religious house, would be that of papal exactions and the measures taken against them. With this we pass to the third document we print, which we have headed ' A Newsletter from Carlisle ' and which describes attend on 16 February 1305, he was not re-summoned when parliament was prorogued -to 28 February: Maitland appears to have thought that the dropping of a number of abbots and priors from the Hat of those summoned was accidental (Memoranda de Parliament, p. cxi), but it seems significant that they are also missing from the list of those summoned to Carlisle in 1307 (Parí. Writs, i. 182, 184). In any case, the abbot of Stanlaw is no more summoned, and the abbot of Whalley, so far as our evidence goes, received no summons until 1332, and then he is included among those to whom *non solebat scribi in aliis parliamentis' (Lords' Reports on the Dignity of a Peer, iv. 409). 1 a Chron. W. de Hemingburgh (ed. Hamilton), ii. 254. Ibid. pp. 254-9. 3 The variant readings are noted by Hamilton, op. cit. pp. 259-64. 4 Parí. Writs, i. 28, 79, 182, 184 ; see also Lords' Reports on the Dignity of a Peer, iv: 409.

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itself as ' Novelles du Parlement'. This exists on a single sheet of parchment in the miscellaneous collection known as Parliamentary and Council Proceedings ; formerly it was among another miscellaneous collection, the old class of Royal Letters. There is, of course, nothing official about it, and it is not a letter in the ordinary sense, whether royal or private, although at one point it drops into the epistolary form ' vous verret '. Clearly written though it is, the document is full of careless blunders, the work of a hurried scribe who did not take the trouble to understand the copy before him, a characteristic not infrequent in commercial productions of the middle ages, for such we believe this newsletter to be. What the document purports to give us, however, is not an account of the proceedings of parliament, but, as it says, news from parliament; and, apart from two paragraphs dealing with the proceedings against Antony Bek, bishop of Durham, what it has to tell us is all concerned with the mission and doings of the ' cardinal'. Peter the Spaniard, cardinal-bishop of Saint Sabina, had arrived at Carlisle on Passion Sunday, 12 March, as previously arranged with the king.1 His political mission was to bring about peace between England and France, and to conclude the arrangements for a marriage between Prince Edward and Isabelle, daughter of Philip the Fair. The cardinal, of course, had other interests. He was drawn, for example, into the Scottish quarrel, and he intervened in the proceedings against William Testa. How long he remained at Carlisle is uncertain. His letters of safe-conduct were dated 16 March,2 and he was in London at Whitsuntide; 3 he was still at Carlisle after the magnates and the commons had departed from parliament,* and he may have stayed there for several weeks.5 However, the newsletter was plainly written after 12 March and presumably after 15 March, upon which day, according to the Lanercost chronicle, the cardinal addressed, on the subject of his mission, a congregation of clergy and laity in Carlisle cathedral, and also pronounced sentence of excommunication against the murderers of Comyn and all those aiding, counselling, or favouring them. On 17 March the archbishop of York is reported to have announced the conclusion of peace and the forthcoming marriage which was Foedera, I. ii. 1009 ; Chron. de Lanercost, p. 306. The king arrived on the same day : Gough, Itinerary of Edward J, ii. 271. 8 Foedera, I. ii. 1011. 3 According to the Annales Paulini, he was at Westminster on 22 May, the Morrow of the Octave of Whitsun (Chronidea of Edward 1 and Edward II, i. 266); see also the concluding sentence of the newsletter. 4 Rot. Parí. i. 222a : this was apparently after 22 March. The knights had their writs of expenses on 20 March (Parí. Writs, i. 191). 5 According to Hemingburgh (ii. 253) he stayed for two months. 1

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to seal it.1 Very soon after this the newsletter must have been •composed. Upon its contents we need make little further comment. But we may remark that the decision of the king and council, as here reported, regarding the procurations which the pope had authorized the cardinal to demand, is either inexact or was subsequently rescinded. According to Hemingburgh, he had been authorized to demand for his expenses twelve marks from «very chapter in England, Ireland, and Scotland, but he was not content with this rate.2 That the scale, whatever it was, aroused resistance seems plain from the fact that it was not until May that the cardinal was allowed by the king to receive procurations at the rate required by the pope's letters.3 It is difficult, however, to believe that his demands ran up to four hundred thousand pounds and sixty-five shillings from England and Wales. The «ardiñal was, in fact, permitted to take with him the more modest sum of a thousand marks when he left the country late in the year.4 We have already indicated that Walter of Hemingburgh had •written sources of information that enabled him to include in his chronicle a fairly long account of the proceedings at Carlisle ; but bis account is all from one angle and is not that of a writer acquainted with the work of parliament as a whole. When we have matched the two documents he incorporates in full with the documents which come from Whalley, it is tempting to match his narrative account with our newsletter, and the temptation is justified. There is no reason to suppose that only one such document was produced : if the demand existed, there would be more than one source of supply. Hemingburgh's original told him of the cardinal's doings and told him little else. We doubt whether all was truthfully told. It is hard to believe that the squib—if it is decorous so to term it—which went under the name of Peter son of Cassiodorus, was solemnly read before king, «ardiñal, and council. That it was passed round at Carlisle and copies made of it, we may readily credit: but important people do not waste their time with tedious and obscure arguments put forward by pseudonymous writers of open letters. Such documents, however, may be—as this one clearly was—welcome material to news-collectors who have not much reliable information to supply; and they can be given an imaginary setting to enhance their value. And we suggest that it may have been from a newsletter that Walter of Hemingburgh obtained the details of his narrative. It may be well to emphasize that, while the circulation of newsletters and documents, such as we have described, attests 1 8

Chron. de Lanercost, p. 306. Foedera, i. ii. 1015.

Op. cit. pp. 253-4. «Ibid. 11. i. 15.

8

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a desire to be informed of the proceedings of parliament, interest, so far as our evidence goes, was limited in 1307 to ecclesiastical circles and very largely to ecclesiastical matters. Our evidence is doubtless incomplete. There are indications that, twenty years later, documents connected with the revolution of 1327 circulated to a larger public.1 But we cannot deduce that there was yet a wide interest in the proceedings of parliament as such. A caveat on this point may not be altogether unnecessary. It remains to add a few sentences regarding the text of the second and third of the documents we have printed. The footnotes we have added 2 will enable a comparison to be made between the Whalley copy of the petitions and the surviving copy of the version entered on the parliament roll. Of the roll (or rolls) of that parliament, only a fragment of one membrane and a guard remain ; but much, perhaps the whole of the roll, was copied into the Vetus Codex,3 and, in copying, some errors have evidently crept in. For example, in the eighth paragraph of the Vetus Codex copy there is a reference to the ' frutz de celes eglises qe sont properment les aumoynes des auoes, tut soient il dismes quant a Dieu ', which is plainly nonsense : but the sixth paragraph of the Whalley version shows that for dismes we should read donez. A more complicated corruption at the end of the second paragraph of the Vetus Codex copy can similarly be restored by a comparison with the first paragraph of the Whalley version. Again, in the same paragraph of the Vetus Codex copy, the meaningless moties is shown to be a misreading of mettez. On the other hand, where homoeoteleuton has caused a substantial omission in the first paragraph of the Whalley version, the missing words are supplied in the Vetus Codex. And, again, the fifth paragraph of the Whalley version speaks of the executours de iugement, where the seventh paragraph of the Vetus Codex copy enables us to substitute execution. Other examples will be found in the notes. It will also be seen that differences are frequently due to careful redrafting. The text of the newsletter is, as we have indicated, unsatisfactory. Here and there we have repaired the errors of the scribe, and we have added notes which will, we trust, render the whole document intelligible.

1

Above, p. 428. We have noted only the more significant differences between the Whalley and Vetus Codex [V.C.] texts, and have ignored differences in spelling. 3 Bull. Inst. Hist. Research, vi. 150. 2

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1

A. NOTES ON THE PAPAL INTERPRETATION or THE LAW OF FIRST-FRUITS B.M. Add. MS. 10374, fo. 12 Articuli super quibus dominus papa facit interpretacionem in preiudicium domini regis et magnatum fundatorum et patronorum tocius ecclesie Anglicane : Aliqui prelati consueuerunt percipere primos fructus beneficiorum in suis dyocesibus vacancium de consuetudine a tempore cuius memoria non ëxistit. Item rectores ecclesiarum parochialium, si decesserint post Pascha uel alio certo tempore, secundum diuersas locorum consuetudines, de fructibus illius anni consueuerunt testan et pro sua disponere volúntate suis creditoribus satisfaciendo, seruitoribus suis remunerando, residuum bonorum suorum pauperibus consanguineis uel aliis indigentibus erogando. Item si defunctus beneficiatus domino regi uel aliis1 fuerit obligatus, Romana ecclesia in percipiendo primos fructus uult preferri. Item si post mortem beneficiati, ante admissionem successoris, pro sustentacione domorum, excolendis et seminandis terris, expense fuerint faciende. Item si reseruari debeant, racione ecclesie, fructus illorum priorum qui non habent bona discreta, set cum conuentibus omnia in communi. Item si fructus illorum beneficiorum reseruentur, racione ecclesie, que ex causa permutacionis contigerit resignari. Item si fructus beueficiorum de iure licet non de facto vacancium sedi apostolice reseruentur. Item si postquam aliqua pars fructuum beneficii vacantis fuerit recollecta, et ipsa infra eundem annum semel vel pluries vacare contigerit, an quociens vacauerit tociens fructus debeantur. Item si de fructibus sedi apostolice reseruatis vel aliunde décima sit soluenda. Omnes hee dubitaciones friuole reputantur 2 a papa 2 et, eis non obstantibus, ad collectionem fructuum primi anni integraliter fore discernitur procedendum. Deinde subditur quod successores in beneficiis, quando fructus ex eis perceperint, omnia predecessorum suorum debita soluere teneantur, et quod illi prelati, qui primos fructus beneficiorum vacancium consueuerunt percipere a tempore cuius memoria non existit, fructus percipiant anni subsequentis. B. PETITIONS OF THE EARLS, BARONS, AND COMMUNITY OF THE LAND B.M. Add. MS. 10374, fos. 12-13b [1] A nostre seingnur le roy mustrent countes et barons e la comunaute de la terre qe, cum leur ancestres de temps dunt il ni ad memorie toutz iourz iuske en cea purreyent toutz leur biens moebles 3 en leur testamentz deuiser, doner e departir, solome le eydement * de leur executeurs e sanz rien nomer especiaument ou distinctement de mesmes les biens en leur 1 3

MS. ' alii'. V.C.: ' lour leis chateux et biens '.

2 2 4

- Interlined. V.C.: ' ordenement'.

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testamenta, iasint qe a la volunte de chescun testatour toutz iours ad este de nomer ses biens1 distinctement on generaument, ou nomer partie de leur biens distinctement e partie generaument, e les executeurs des dreins 2 testafo. 126 mentz eyent este toutz iours iuske en cea chargez ausi auaunt des biens 3 des testatours generaument en lour testamentz nomeez come des biens * qe furent en leur testamentz s distinctement mettez,8 a prendre 7 en la court le roy vers les exsecutours ount este faites par forcé de ley e custume du roiaume, ausi auaunt des biens 8 nient nomez distinctement come des autres, la vint mestre William Testa e les autres clers * lapostoille e demaundent communement par mi le roiaume des executeurs al oes lapostoille toutz les biens qe ne sunt nient distinctement en teux testamentz nomez, e greuousement par sentence e en autre manere e souent10 sanz proces de ley les destreingnent pur teux biens a eux e al oes lapostoille paer, countre la ley e la custume susditz, e la volunte de teux testatours e a damage e empourisement de tuit le roiaume. E pur ceste estraunge duresce prient les ditz countes, barons e la commuhaute, desicum due11 maner de testamentz ad este solóme la custume du roiaume toutz iours vsee, par temps des autres apostoilles excepte e conferme13 sicome en leur canuns est escrit pleinement e contenu,13 voille si li plest remedie faire contre ceste oppression, qe est si estraunge qe ne peot estre estime.14 [2] E 15 les ditz clers lapostoille apelent toutz biens nient distinctement deuises ceux qe ne sunt mié especiaument nomez, e ausi, meske il soyent especefiez e eux ne soyens pas especiaument nomez a queuxilsunt deuises, il les tienent nient distinctement deuises, sicome qi deuisast en sun testament c. mars a doner a poures e ne deist pas quel manere de poures, eest a sauer a frere prechours ou menours ou escoléis ou as autres poures, il voillent auer ceux c. mars al oes lapostoille. [3] E de autre part la ou home du dit roiaume se oblige a vn autre en vne summe de deners 18 a rendre a vn certeyn iour, e sil ne face qil soit tenuz en x. liures ou en vne autre summe de deners,16 a paer a la primere passage de gentz des armes en la Terre Seinte, les ditz clers lapostoille fount enquerre par my tuit Ie roiaume de teux obligacions faites auaunt ces oures, dount les payes ne sunt mié faites a iours contenuz, tuit eyent les dettours fait gree a leur creauncours ou par iugement en17 la court le roy, a qi les conisances de teles obligacions apendent, eyent les dettes ensemblement oue les damages a leur creauncours renduz, nepurquant18 il destreinent les19 pur Ie auer issint a la Terre Seinte oblige al oes lapostoille leuer.20 f o. 13 [4] Ensement par la ou le roy e ses ancestres, countes e barouns e leur ancestres, ont donez terres e tenementz, auowesons e tieux autres tem1

s V.C.: ' tieux biens et leis chateux'. V.C.: ' tieux'. V.C. : ' tieux biens et chateux'. 4 V.C. inserts ' chateux ', but without' et', as in Bot. Pari. i. 220a. 6 * V.C. omits ' qe . . . testamentz '. V.C. reads ' moties '. 7 V.C. : ' a respoundre en la court le roí a chescun qi voleit vers eux dette demaundre, issint qe les execucions des iugements renduz '. 8 V.C. : ' tieux biens et chatieux '. ' V.C. : ' oleres et procurators '. 10 V.C.: ' souent feth'. " V.C.: ' tiele'. " V.C.: ' acceptie et aSerme'. 18 V.C. reads corruptly ' en lour canonizóle escrito pleinement est contenuz '. 14 ls V.C. omits ' qe . . . estime '. V.C. omits the whole of this paragraph. 18 l8 V.C. : ' auoir '. " V.C.: ' de *. V.C. : ' ia le meyns '. M » V.C. inserts ' detturs'. V.C.: ' liuerer '. 8

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porautes, as prelatz de seinte eglise, come a erceuesques, euesques, abbees, priours, des queux temporautez les vns sunt par homage teuuz e les autres par due seruiz1 en seinte eglise2 a faire certeyne aumones e hospitaltes en certeynes lieus du roiaume e nient dehors,2 des queux temporautez, si tort en soit fait as tenantz de celes, le roy est tenuz a faire dreyt en sa court, pur ceo qe la conisaunce de teux temporautez apendent au roy e a nul autre,3 issint qe la seingnurie de celes temporautes de droit apent au roy e a les autres auowees e a nul autre, la vint lapostoille en appropriant a li la seingnurie suzdite fait taxer a sa volunte ausi auaunt la temporaute come lespiritaute, e celes temporautez par ou eux sunt assignez, par assent du roy, as deens, ercedeknes, e autres persones de teles dignitez, a faire les charges suzdites, lapostoille les doune a sa volunte a cardinaus e as autres aliens sanz rien faire des dites charges, countre la fourme des collacions auauntdites 3 e en desherison du roy e des autres auowes susditz e en anientissement del seruiz Dieu e seinte eglise.4 [5] Ensement par la ou persone de seinte eglise moert en tiele seson del an qe les frutz del an ensuant deiuent a li pendre, des queux il ad fait sun testament come de 6 autres biens, e les executeurs par forcé de ley e custume du roiaume toutz iours vut este e deyuent estre responsables en la court le roy de teux frutz a chescun qe voleyt vers eux dette demaunder par bref Ie roy, issint qe les executeurs de iugement * rendu en la court le roy meyntenaunt sanz nul delay se deyt faire par forcé de ley du roiaume, ausi auaunt endreit de teux frutz come des autres biens, la vint lapostoille qe ad arestu7 a li les primers frutz des primers vacaunz e vout auer toutz les frutz 8 a sun oes demeyne, e, si il les eit, demurra Ie iugement rendu en la court le roy sanz execucion, ou 8 la execucion remeindra en suspense a la volunte lapostoille. [6] Ensement se pleinent10 countes e barouns e la communaute qe par la ou leur clerks a leur presentement sunt receuz e institutz en les eglises qe sunt de leur auowesons, e de frutz de celes eglises, qe sunt proprement les amones des auowes, tuit seyent donezu quant a Deu, fa 13é deyuent les ditz12 clers estre sustenuz pur les eglises seruir, la vint lapostoille e prent a li toutz les frutz del primer an de la voidance de celes eglises, sanz reseruir rien pur la sustenance des ditz clers, e issint appropre il a li les aumones des ditz auowes countre leur volunte e en peril de desheriteson quant a leur auowesons, kar par my13 la reson qil prent les frutz del primer an14 de la voidance, les peot il prendre Ie secund e Ie tierz e Ie quart, et issi auaunt a sa volunte, e ceo serreit15 apert desheriteson des auowes quant a leur auowesons, kar si tost come le clerk pert sa possession de la eglise countre sa voluntela sun auowe pert sa auoweson de mesme cele eglise. 1

V.C.: ' pur Dieu seruir'. *-* For ' a faire . . . dehors ', V.C. substitutes ; ' et autres charges faire come sus est dit' (i.e. in the first paragraph of the V.C. text). *-8 V.C. omits " issint . . . autre' and ' e teles temporautez . . . auauntdites', but embodies the substance in its first paragraph. 4 V.C. reads ' en desheriteson du roi et des contes et barons susditz '. 6 V.C. inserts ' ses'. • V.C. reads ' lexecucion du iugement'. 7 V.C.: ' reserui'. • V.C. : ' tiels frutz '. • V.C. : ' et'. 10 V.C. inserts ' les ditz '. « V.C.: ' tut soient il dismes '. " V.C. : ' lour '. 13 14 V.C.:'meigme'. V.C. reads 'qil les prent le primer an'. " V.C.: 'cest'. 16 Altered from ' la volunte de'; V.C. reads correctly : ' countre la volunte de son auoe, son auoe . . .'

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E pur ceo ley e custume du roiaume ne soefirent mie1 qe play seyt en court cristiene des dymes des eglises, ou de la tierce partie ou de la quarte partie, auaunt ceo qe 2 play seit termine en la court le roy del auoweson de mesmes les dymes. [7] E 3 de oestes oppressions prient les ditz countes, barouns e la communaute au roy qil voille, si li plest, regarder au peril de sa deshereteson et de leur, e al blemisement e ofiens de la ley du roiaume e la dite desheriteson du poeple face ordener tele remedie qe seit couenable. II

A NEWSLETTER FROM CARLISLE Parliamentary and Council Proceedings (Chancery), 3/18. NOUELES DU PARLEMENT

Cest assauer qe Ie roy Dengieterre e le prince, erseueqes e euesqes, abbes e priours, countes e barouns, e tout le común consayl le roi e tote le commune de la terre, si sunt assentuz au mariage par entre le prince * e la filie au roi de Fraunce, issy qe totes les terres, qe ounqes furent purtenaunz a la coroune Dengieterre, le roy de Fraunce ad graunte au prince e a sa filie, yssy qe il nient reserue a luy fors tauntsoulement les homages pur les dites terres. E de ceo pees ensoroer 6 meismes les choses, ehecuyn pouynt, serrount mys en escrit, yssy qe de vne partie si demora south le seal le roy Dengieterre vers le roi de Fraunce, e le pee de parties demora vers le Aappostoyle de south le seals le roi Dengieterre e le roi de Fraunce, yssy qe lapastoyle auera pouer de mettre remedie par seynt eglise * enuers qe la chose 7 peche, qe la fourme ne tregne en sa force com ordeyne est en escrit par le dieux rois. Dautre part, le Cardenal ad endenture ensemblement oue countes e "barouns de la terre Despangne au prince Dengieterre de la seignurie Despaigne, pur taunt com le roi Despaigne morist saunz heir de son corps e le prince Dengieterre est plus procheyn de saunk de part sa mere, par quey le senurye de la terre luy est graunte. Dautre part, le Cardenal ad poer de mettre remedie vers la cleregie de Escoce qe vnt releuez en countre le roi Dengieterre e en countre sa pees. Par quei il ad done la sentense sur Robert le Brus e desur touz iceaux, de quel condicioun qil seyent, en eyde, ou de dit ou de fait ou de dít 8 ou de ríen qe valer luy puisse en la guerre en Escose meyntener en contre le roy Dengieterre. Par quey vous verret grant duresse estre ordine contre la cleregie de Escoce par eel sentence done. Dautre part, totes les terres leuesqe de Dureme qe sunt del homage le roi si sunt prises en les mains le roi, e le roi doune ses rentes totes partz, par taunt qe il est acoise au roy e a soun consail qe il est assentu a sire Robert de Brus, qe, si leuesqe ne euste este, sire Robert ne se eust ia ameudlez 9 a meyntenir la guerre Descoce. 1

2 V.C.: ' poynt'. V.C. inserte ' le '. V.C. omits this paragraph, but embodies the substance in its first paragraph. 4 6 MS. ' prine '. Cf. Godefroy, Lexique, s.v. ' enseurer'. • MS. ' elise'. 7 a MS. ' ohse'. • Sic. Cf. Godefroy, s.v. ' amieldrir'.

a

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Dautre part, leuesqe est rette qe il ad este en countre le roi en eyde del erceuesqe de Cauntirburs, par quey il ad maugre de lapostoyle e du roi. Dautre part, le Cardenal est respounduz de par le roi e par tout son consail de sa demaunde et sa procuracie de eglises : le roi ne luy foissa 1 prendre forsi come autres cardinals auaunt eest heure vnt pris. E sur ceo erceuesqes, euesqes e procuratours de eglises vnt feet lur appel a forbarre la sentence. E sur ceo ad le roi maunde a chescun euesqe qe de sa diosice face venir largent a sa tresorie a Loundres, e le trouera le Cardenal quanqe * mester ly seit, yssi qe le Cardenal ne auera poer a nul dener receyuere ne nul dener porter hors de la terre. [La] somme de la demaunde e de sa procuracie en Engleterre e de Gales amounte quatre cent mil liuers e sesaunte cink souz. E pur ceo sa demaunde fust si outraiouse [e] a si grant destrucción de la terre, est ordeine par le roi e de par son consail qe lem ly trouera courteysement ces despences, pur taunt com il est demore en Engleterre, saunz autre corteysie a ly fere. Le poer du Cardenal si est en diuers choses : ceo est assauer en letimacioun, de quel condicioun qe eie seyent ; en correccioun, de quel condicioun qe eles seyent ; en quele diosice quele seyent, il ad poer de confessiouns doner par sa lettre e alire 3 confessiours de quiqe om voit ; il ad poer de assoudre genz descummengez par bulle ; il ad poer de assoudre de checun manere de peche, ne seient il ia si orible, sauue de ceus qi vowe a la Terre Seynte ou de ceus qi ount grant peches en religión, mes de touz autres vous poez 4 il assoudre ; e il poet relesser penaunce done par euesqes. Tous les procuratours en Engleterre . . .6 sunt aìornes a Loundres, a Lambheth, en la simaine de Pentecoste, e il espleytra les bosuignes de ceux qi vendrount siure, qil ne pora mye donez au pople Carduial,6 ore taunt fust il ocupe en la bosuigne le roy. 1 This appears to 2 MS. ' qunqe '. 4

be a corrupt rendering of ' feist a prendre '. » Itead ' elire '. Sic. Translate ' but from all other vows he is able to grant absolution '. 6 MS. torn : supply a short word such as ' ore '.

• Sic. Translate ' which he will not be able to give to the people at Carlisle '.

NOTES Throughout for ante read Eng. Hist. Rev. Above, V. 147,154. Below, XIX. 150. This is a much-rubbed document. I am grateful to Dr. Pierre Chaplais for his kindness in vetting it for me and making these amendments: 1.19 for ensoroer read enforcer and delete n.5; 1.24: for tregne read tiegne; 1.25: for Despangne read Despaigne; 1.35: for done read doner. 437, 1.2 for Caumerburs read Caunterbur'; 1.4: for foissa read forssa and in n.l for feista a read leissa; 1.22: for grant peches read este profes; 1.26: for doner read vener and in n.6 for which read that, for give read come.

427, n.2 n.3 432, n.3 436. II


XIII The Scottish Parliaments of Edward I. almost total loss of Scottish documents in any way conT HEnected with parliaments before the year 1293 has left the early parliamentary history of Scotland exceedingly obscure. We obtain some welcome light from English sources, but there still remain great gaps in our knowledge, very imperfectly filled ; consequently, any attempt at constructing even an outline of the history of thirteenth-century Scottish parliaments is of necessity tentative. The verse of Jordan Fantosme, in which he speaks of the parliament of William the Lion, is one of the commonplaces of parliamentary antiquities.1 But Jordan, like his contemporaries, was not using a technical term when speaking of the parliament of a king.2 We have no certain knowledge of organised parliaments in Scotland until after the year i25o.8 In March 1258 Henry III., obviously echoing the words of messengers from Alexander III., makes mention of the convocation by the Scottish king of his parliament at Stirling in three weeks of Easter ; to this parliament Henry is sending the abbot of Peterborough, the earl of Winchester, and John Ballici, with instructions to ask Alexander to appoint another parliament, to be held south of the Forth, to which Henry might send representatives.4 Alexander apparently dispatched messengers without delay to announce the convocation of a fresh parliament at Edinburgh and to request the presence of a dignified English delegation. The date, however, clashed with that of the parliament of Oxford, and Henry therefore asked that the Edinburgh parliament might be prorogued until the Nativity of Our Lady (8 September) to a place Chronicles of Stephen, Henry II. and Richard L (Rolls Series), iii. 226,1. 288. The twelfth-century usage of the word will be discussed elsewhere. 3 The list of parliaments and general councils, prefixed to the Acts of the Parliaments of Scotland, i. 63 ff., does not suggest any definite organisation at an earlier period. 4 Close Roll, No. 73 (42 Henry III.), m. lob : printed in the Lords' Report on the Dignity of a Peer, iii. 18. 1

2

Scottish Parliaments of Edward I.

xm 301

more accessible to those coining from England.6 Now it is to be remarked that whereas in his earlier letter Henry uses the word parleamentumf in the second he uses throughout the word colloquium. But there is no question that the colloquium at Oxford, summoned, as he says, to meet a month from Whitsunday, is the parliament of Oxford and quite certainly a parliament in the technical meaning of the word. There was evidently still among the more conservative, and particularly among those of the inner circle of the king's court, a preference for the older, classical colloquium as against the vulgar parliamentum 7—a preference which seems to have persisted in Scotland longer than in England. The identity of the two words in these documents and the technical meaning to be attached to them is, however, beyond doubt. We have therefore little hesitation in going further and equating the plenum colloquium of a record of January 1255 8 with the plenum parliamentum of later usage,9 and in recognising the colloquia at Edinburgh of 1264, for which the sheriffs of Edinburgh and Lanark supplied provisions,10 as parliaments in the sense in which we now use the word.1 In March of the following year an English delegation was dispatched to the parliamentum Scocie at Scone ; z nor does it * Close Roll, No. 73 (43 Henry III.), m. 8b : printed in Lords' Report, iu. 19. * It should be noted, however, that while Henry speaks of the parleamentum of the Scottish king, he speaks of colloquium nostrum to be held between the date of writing, 25th March, and the parliament at Stirling. This colloquium appears to be a parliament held at Westminster in the Easter term, 1258. The same word is again employed in a note on Close Roll, No. 73, m. tob, adjourning an action by the king against John of Warenne/ro/ter iastans colloquium quod habet Londomit ; this entry is undated, but is between entries dated $th and i 2th April. 7 The transition from the one usage to the other will be discussed more fully elsewhere. 8 Acts of the Parliaments of Scotland, i. 426 : ' in pieno colloquio domini regis habito apud Sanctam Crucerà.' 9 E.g. Ibid. i. 446 : ' qui quidem Episcopus (se. Mannie) congnouit in pieno parliaments ' (Scone, February 1293) ; ibid. p. 459 : ' Ostensa nobis in scriptis et plenius intellecta vestra credencia in pleno parlamento domini nostri Regis Scocie apud Ciuitatem Sancii Andree solempniter nuper tento ' (March 1309). 10 Exchequer Rolls of Scotland, i. 30, 33. 1 We may note that Fordun, Chronica, p. 283, mentions a parliamentum at Edinburgh after Epiphany 1215 ; but this is no evidence for the contemporary use of the word. We may note also the contemporary reference to a colloquium at Listón in 1235 : Acts of the Parliaments of Scotland, ¡.408. 2 Close Roll, No. 82 (49 Henry III.), m. 8b : ' Cum de consilio magnatum nostrorum qui sunt de consilio nostro provisum sit et ordinatum quod vos . . . ad

xiii 302

The Scottish Parliaments

seem open to doubt, although direct evidence may fail us, that parliaments continued to be held with frequency, if not with ordered regularity, throughout the reign of Alexander III.* After his death the guardians of the realm evidently still held parliaments.* In February 1290 master William of Blyborough is on his way from the English court to the parliamentum Scocie f almost certainly the meeting at Brigham, in March of that year, where was discussed the marriage of the Maid of Norway with the lord Edward.6 In July there followed another meeting at Brigham at which the marriage treaty was settled. For this meeting the official Scottish term appears to have been colloquium7 ; but the mayor and community of Berwick, who were represented there, called it parliamentum, and their business, we may remark, was not to discuss a royal marriage but to secure the redress of certain grievances.8 The aspect which these Scottish parliaments present in English documents is restricted to politics or diplomacy; Alexander's marriage has involved Margaret and therefore Henry III. in the party struggles for the control of the government of Scotland, and from this result the comings and goings of 1258 ; in 1265 it is the acquiescence of Alexander which is sought in the arrangements for the release of the lord Edward; in 1290 there is a royal marriage to negotiate. But the Scottish document of 1255, to which we have already alluded, is of another kind ; an inquest Regem Scocie illustrem personaliter accedatis ita quod modis omnibus sitis apud Ascone in instanti parliamento Scocie sine dilacione ulteriori ..." ; summarised by Bain, Cal. Docís. Scotland, i. 473. 3 See the list given in Acts of the Parliaments of Scotland, i. 68-70 ; but we are unable to distinguish with certainty parliaments from other meetings. Cf. R. K. Hannay, ' On ' Parliament ' and ' General Council,' ' ante, xviii. 157 ff. * Fordun, Chronics, p. 319, mentions a parliamentum at Scone on 2nd Aprilf 1286, where the clergy and community of the whole realm of Scotland elected sir guardians ; but we doubt whether this meeting was technically a parliament or wa» so called at the time. 5 Chanc. Misc., 4/5 (Wardrobe Book, 1289-90), f. 25 : an imprest of ¿6.138.4d. is made ' Domino Willelmo de Bliburgo eunti ad parliamentum Scocie mense Februarii pro negociis Regis.' 6 Foedera¡ i. 730 ; Acts of the Parliaments of Scotland, i. 441 f. ; Stevenson, Documents Illustrative of the History of Scotland, i. 129 ff. 7 Foedera, i. 736 : ' apud Brigham in colloquio ibidem habito.' 8 Stevenson, Documents, i. 174. The business of the burgesses, however, was not, primarily at all events, with the guardians or magnates of Scotland, but with the English commissioners there present, who refused to deal with the complaints, ' asserentes se super hiis mandatum speciale non habuisse nee warantum.'

of Edward I.

xm 303

has been held before the Justiciar of Scotland regarding the suit of court due in respect of lands held by the Abbey of Dunfermline, and the verdict is pronounced in pieno colloquio domini regis. This suggests, and the analogy of the parliaments of England and Ireland and, we may add, of France strongly supports the suggestion, that the primary purpose of these early parliaments of Scotland was the dispensing of justice ; and since this was undoubtedly the primary purpose of the parliaments of JohA Balliol, there is no real question as to the nature of the parliaments of Alexander III. Of their composition we can say little more than that the parliaments are certainly attended by the magnates, and that in Scotland, as elsewhere, the core of the parliament seems to be the king's council9 ; of a wider representation of the community there appears to be no certain evidence until I29Ó 10 and then at a parliament held by the English king. It will be well to add some further details of Balliol's parliaments. The first was held at Scone on the octave of Candlemas (9 February) I293. 1 The entries upon the roll which contains such of the proceedings of this parliament as are recorded, provide in themselves abundant evidence that we have to do with a court with settled procedure and periodical sessions. The abbot and convent of Reading, for example, seek in this parliament to recover the priory of May which has been, they say, improperly alienated to the bishop of St. Andrews. The abbot's proctors are asked whether they will agree to reimburse the sum of 21 oo marks paid by the bishop ; they profess to be unprepared for the question and pray that the case may stand over until the next parliament and, if they are not able to come to the next parliament, then to that following.2 In another case, the next parliament is appointed to the bishop of Dunkeld in which to For the magnates, see, e.g., Acts of the Parliaments of Scotland, i. p. 447. For the council in parliament, see the formulas in the record of the parliaments of 1293 : * Coram ipso Rege et eius consilio in parliamento suo primo ' ; ' A nostre seignur le Rey de Escoce e a soun Counsail ' ; ' Piacila parliamenti . . . coram domino Rege et eius Consilio ' ; ibid., i. 445, 446, 448. 10 Upon this point, cf. Hannay, ' General Council of Estates,' ante, xx. 268 ff. 1 Acts of the Parliaments of Scotland, i. 445. It seems clearly to have been at this parliament that the executors of Alexander III. endeavoured to come to a settlement with John Mason the Gascon merchant. Bain ascribed the correspondence concerning this matter (Calendar Docis. Scotland, ii. 160 f.) to 1294 ; but the letter of the bishop of St. Andrews (No. 687) and the reply of the executors (No. 688) are obviously anterior to the writ of 8th March, 1293 (Foedera, i. 787 ; Rotuli Scotiae, i. 17). a Ibid. i. 446. 9

xiii 304


wage his law.3 The next parliament was held at Stirling on the morrow of St. Peter's Chains (2 August) and of this parliament also we have a record. Here again we find an adjournment ad proximum parliamentum* There is, therefore, the clearest evidence of a regular succession of parliaments, although whether these were held at fixed terms is a point upon which evidence is lacking.5 It is an obvious deduction that King John has but continued a procedure devised under his predecessors ; for any sign of novelty we may look in vain. We have said so much of what we may call the national parliament of Scotland in the thirteenth century,6 because it is against this background that we must view the Scottish parliaments of Edward I. When the Scots were negotiating the treaty of Brigham, they foresaw clearly enough the possible danger, for such it seemed to them, of being required to attend the parliaments of a king who was also king of England and who would hold parliaments outside the borders of Scotland. If there were to be parliaments to deal with Scottish affairs, then they must meet within the Scottish realm and the Scottish marches. To this demand Edward bowed.7 Acts of the Parliaments of Scotland, i. 447. * Ibid. i. 448. There are three other parliaments held by Ballici of which we can be reasonably certain. It was at a parliament held at Lanark in February 1294 that an extent of the lands of the earldom of Fife was delivered to Walter of Cambo, and this parliament is twice mentioned in the account Walter rendered at the English exchequer ; the parliament seems to have lasted at least a fortnight (Stevenson, Documents, i. 407 f., 410, 415). The Chronicon de Lanercost, p. 162, mentions a parliament at Stirling on 6th July 1295, where twelve 'peers' were elected by whose advice the king was to act, and where the Bruces were deprived of their lands. Hemingburgh places this parliament at Scone (Chronicon, ii. 77) ; Fordun, who places the meeting late in 1296, likewise says Scone, but his account is obviously incorrect (Ghronica, pp. 327 f.). The messenger sent to demand the surrender of border-castles by the Scots as pledges of good conduct is said by the Chronicon de Lanercost (p. 167) to have been dispatched ' cum iam congregatum esset apud Edynburgh tarn parliamentum procerum Scotiae quam concilium praelatorum ' ; the date of this meeting is indicated by Edward's letter of loth October 1295 (Foedera, i. 829) and John BallioPs safe conduct to the bishop of Carlisle of 8th November (Letters from Northern Registers, Rolls Series, pp. 119 f.). Fordun's account (Chronica, p. 322) of a parliament called by Ballici after his return from London (late 1293) refers apparently to this meeting. 6 There is, of course, a danger in speaking of national parliaments, since this conception is hardly yet possible in the thirteenth century ; a parliament is still a parliament of a king or prince or count, his personal court. But events are moving rapidly in Scotland, and the idea of national institutions is emerging. 7 Foedera, i. 736, 738 ; Stevenson, Documents, i. 170, 173. 3

5

of Edward I.

xni 305

It will not be irrelevant to make the point that the objection was founded upon a principle not peculiarly Scottish and that the danger was not illusory. All the world knew that the King of England had become the vassal of the King of France as the price of the concessions made by Louis IX. to Henry III., and that as a vassal he was a suitor, sometimes in person, usually by proxy, at the French king's parliament. It could not be hidden that this service was increasingly onerous to the point of humiliation.8 Forced attendance at a parliament in England would imply that the Scots were bound to the King of England even as the King of England and his French subjects were bound to the King of France. And though the Scots might not be altogether unprepared to accept that relation,9 there was yet a further objection : they owed no service beyond the borders of their own country.10 A precisely similar question had arisen not long before in France. Alfonse of Poitiers had found it convenient at times to hold his parliament at Paris, whither he had summoned the Poitevins, but they protested that they were not bound to come to him ' in France ' ; and they attended only as of grace and subject to an indemnity for the future.1 There cannot be any question that the barons of Scotland were of one mind with the barons of Poitou, and that the same principle might be advanced by unwilling suitors in many lands of Western Europe. For long the fear of suit at parliaments beyond the borders seems to have persisted in Scotland, and as late as 1324 Robert I. found it necessary to define the obligation as attendance at parliaments infra regnum nostrum? Cf. Gavrilovitch, Ètude sur le Tratte de Pans de 1259, pp. 84 ff. All the claimants to the Scottish throne appear to have accepted Edward's overlordship, if not his direct lordship (Rishanger, Chronica, pp. 246 ff. ; Foedera, i. 763 ; Prynne, Exact Chronological Vindication, iii. 506 ff. ; as to the nature of these documents, see below, p. 306, n. 3). Cf. Palgrave, Documents, pp. 14 ff. When Balliol protested against vexatious citations extra regnum nostrum, some emphasis should perhaps be put on these last words ; Foedera, i. 836. 10 Cf. Stevenson, Documents, i. 168 f. ; Foedera, i. 735, 755 ; Chronicles of the Picts and Scots, p. 218. See also Fordun, Chronica, p. 298 f. ; Theiner, Petera Munimenta, p. 94 ; Cal. Papal Registers, i. 408 f., for objection made by Alexander III. to citations by papal nuncio extra regnum to York. 1 The letter of indemnity is dated March 1270 ; Layettes du Tresor des Chartes, iv. 428, No. 5659. Cf. Boutaric, Saint Louis et difame de Poitiers, pp. 412 f.; Moiinier, Correspondance Administrative d'Alfonse de Poitiers, II. Ixi. 1 Register of the Great Seal of Scotland, i. 446 : grant of the Isle of Man to the Earl of Moray. 8

9

xiii 306


The events which followed upon the death of the Maid of Norway and the tragic shattering of the treaty of Brigham we need not recount. We have but to recall that the Great Cause dragged its slow length along at successive meetings at Norham on the English side of the border, and at Upsetlington and Berwick on the Scottish side, from May 1291 to November I292. 3 Edward's title as overlord having been recognised on 2nd June, 1291, and the throne being vacant, he determined to exercise the royal power. On what occasion he first called a parliament we are in some doubt. Perhaps this name should be given to the meeting at Stirling in July 1291, where, with the assent of There are references to the parliamentum apudNorham in Hemingburgh, ii. 31, Chronicon de Lanercost, p. 143, and Rishanger, p. 123. The ultimate source is perhaps the account of Edward's dealings with Balliol drawn up by ' Andreas quondam Guillielmi de Tange clericus ' (Chane. Misc. 23/1 ; printed by Prynne, Exact Chronological Vindication, iii. 487 ff. and, in part, by Thomas Thomson, Instrumenta Publica (Bannatyne Club), pp. 3-56) : he also speaks of Edward's parliament convened at Norham. This document is garbled and demonstrably incorrect. It was drawn up after 1296, perhaps for use at Rome in 1301 ; it may, in fact, be the ' processus super homagiis et fidelitatibus Scotorum ' upon which Tange was engaged early in the latter year (Tout, Chapters in Administrative History, ii. p. 71 n.). The draft of part of the document was printed by Palgrave (Documents, pp. 141 ff.) ; here (p. 145) will be found the detailed account of proceedings at a parliament at St. Edmunds on nth November, 1295, which certainly was never held ; this account remains substantially unchanged in the final production (Prynne, op. cit. iii. 557 ; Instrumenta Publica, p. 42). Of this curious blunder we shall have more to say elsewhere. An earlier document covering the same ground to the year 1293, known as the ' Great Roll of Scotland,' was drawn up by master John Arthur of Caen and is printed in the Foedera, i. 762-784. This document is also garbled, but there is no mention of a * parliament' at Norham. A yet earlier version, perhaps by master John, was preserved at St. Albans and is printed in Rishanger, pp. 233-368 : again the meeting at Norham is not called a parliament. More significant still, the original protocol of the proceedings at Norham on §th June, 1291, drawn up by Tange (Palgrave, Documents, Illustrations, No. ii.), contains no word of parliament, although Tange is careful to insert that word in the protocol of the meeting at Berwick on i$th October, 1292 (Ibid. Illustrations, No. iv.). Again, the letter issued by Edward at Norham on 3151 May, 1291, granting that the coming ' deca l'ewe de Tuede ' of the ' haus hommes ' and ' une partie de la communaute ' of Scotland shall not be to their prejudice, does not mention parliament (Foedera, i. 755). Now at Rome in 1301 the attendance of the Scots at parliaments was an important point at issue ; the Scots complained that Edward had not kept his pledged word in the matter of holding parliaments (Chronicles of the Picts and Scots, p. 218), while Edward claimed that William the Lion had attended Henry II.'s ' parliament ' at Northampton and mentioned Balliol's presence ad parliamenta nostra (Ibid. pp. 227, 229; Foedera, i. 933). It might be convenient to add to the chain of instances, or again Tange might just be blundering. In any case it seems impossible to accept the Norham-Upsetlington meeting as a Scottish parliament of Edward I., since his authority had not been recognised when it was summoned, and it is equally impossible to accept it as an English parliament. 3

of Edward I.

xm so?

the bishops, earls, and barons then present, he issued an ordinance requiring the guardians of the realm and others assigned for that purpose to take oaths to the overlord from all those owing fealty ; those who did not appear before the guardians or the other commissioners within a fortnight of i3th July, but who were found to have a reasonable excuse for absenting themselves, were to be adjourned ad proximum parliamentum.* The implication of these last words may be that Edward had already held one parliament in Scotland, but no other assembly except that at Stirling, in which this ordinance was promulgated, can we identify with it.5 Early in August Edward was back again at Berwick for the renewed hearing of the Great Cause ; this session was almost certainly not a parliament,6 but at its conclusion we have an adjournment to Edward's next parliament, and now a date is mentioned, the morrow of Holy Trinity, 2nd June, 1292, the place to be Berwick.7 The hearing of the cause being adjourned, Edward departed at once for England and came back across the border only in time to meet the parliament at Berwick at the time prefixed.8 In the meantime, he had held one parliament at Westminster and writs had issued in anticipation of another 9 : and this, we may perhaps point out, is sufficiently conclusive evidence of the distinction between Edward's Scottish and English parliaments, quite apart from the improbability that English suitors would be Foedera, i. 774 ; Prynne, op, at. iii. 509. Edward appears to have been at Stirling on 12th July ; Prynne, loc. dt., Gough, Itinerary of Edward I., ii. 81. It is to be noted that, had formal summons been issued immediately upon his recognition as overlord, this date would have allowed for the traditional forty days required for the summoning of parliament ; Hannay, ' On ' Parliament ' and ' General Council,' ' ante, xviii. 158. Moreover, as we have already seen, Stirling was a place of meeting of parliament, both under Alexander III. and John Balliol. 8 The only evidence in favour of regarding this meeting as a parliament is that provided by Andrew de Tange (Prynne, op. at. p. 508 ; Instrumenta Publica, p. io). On the other hand, we have the silence of master John Arthur of Caen (Foedera, i. 774) and of the original protocol drawn up by Tange himself (Palgrave, Documents, Illustrations, No. iii.). The fact that this latter document does not mention parliament, while the protocol of the meeting of i j t h October, 1292, does mention parliament, very carefully and specifically, seems to us conclusive. In this connexion, it must be admitted that no document with which we are acquainted speaks of the meeting at Stirling as a parliament. 7 Foedera, i. 777 ; Prynne, op. cit. p. 517. 8 Gough, Itinerary, ii. 93-4. 9 Rot. Par!, i. 70-90; 86, 89; Cai. Fine Rolls (1272-1307), pp. 294, 295. 4

5

xiii 308


prepared to attend extra regnum a parliament where English affairs might be formally adjudicated upon.10 At the Berwick parliament of Trinity 1292, not only was the Great Cause continued, but it seems evident that some attempt was made to secure the hearing of more normal business. The King of Norway petitioned by his attorneys for the arrears of the dower of his late queen, Margaret, daughter of Alexander III. ; it is of interest to note that, for proof of their claim, the attorneys asked for a verdict from the members of the late king's council, who evidently were in attendance at the parliament.1 A dispute over certain lands between Alexander of Argyll, Lord of Lome, and Angus Macdonald of the Isles and his son Alexander, was also brought before Edward, but on 7th July at Berwick, in his presence, the parties agreed that the case might stand adjourned until the parliament appointed to be held at Berwick on the quinzaine of Michaelmas (i3th October).2 Already the Great Cause had been adjourned until I4th October.3 The Michaelmas parliament, apparently with more than one adjournment, was kept in being until lyth November.4 Two days afterwards the guardians were directed to give John Ballici seisin of the kingdom 5 and, for the time, Edward no longer had reason or opportunity to hold parliaments in Scotland. The Scottish king now stood in precisely the same relationship to the King of England as Edward did, as Duke of Guienne, to the King of France. This implied that the overlord might, and in duty should, hear appeals when the vassal had failed to do justice. It is hardly possible that there could be any doubt upon the point, but when Edward sought to determine an appeal from the Scottish courts he was confronted by Balliol with the treaty of Brigham.6 Ingenious as the objection might be—and Edward 10

Edward was, of course, attended in Scotland as elsewhere by members of his council (e.g. the archbishop of Dublin, the bishops of Winchester, Durham and Ely ; the earls of Lincoln and Hereford) ; Palgrave, Documents, Illustrations, pp. iv, vii, xxvii ; Foedera, i. 774, 780 ; Prynne, op. cit. pp. 505, 507, 513, 519 ; Instrumenta Publica, pp. 113-4; Rot. Par!., i. 106. But this will not make a parliament held in Scotland an English parliament. 1 This case was regarded as of considerable constitutional importance, and several copies of the record exist ; Rot. Pari. i. 105 f. ; Stevenson, Documents, i. 312 ff. ; Cal. Patent Rolls (1281-92), pp. 501 f. 2 3 FoeJera, i. 761. Ibid. i. 777 ; Prynne, op. cit. p. 519. 4 Foedera, i. 777-780 ; Prynne, op. cit. pp. 520-526 ; cf. Rishanger, pp. 253-57. 5 Foedera, i. 780 ; Prynne, op. cit. p. 527. 6 FoeJera, i. 783 ; Prynne, op. cit. p. 532.

of Edward I.

xiii 309

himself knew well how to provide ingenious objections in like circumstances—it could hardly be seriously contended that the treaty of Brigham governed the relations of Ballici to his acknowledged overlord ; and within a few days King John had formally renounced the treaty.7 Thereafter, there was a regular stream of citations on appeals to the court of the King of England,8 and a regular mode of procedure was devised to meet them.9 The most famous of these appeals—that of Macduff—came before the English parliament,10 but it is quite clear that it was not necessarily in parliament that Edward intended to hear appeals from Scotland. Just as in the case of Ireland, there was no system of subordinate and superior parliaments ; the English parliament was supreme because it was the court of the overlord ; but the overlord had other courts.1 Within three years of Balliol's accession the breach had come ; in July 1296 he abdicated. Once more the throne of Scotland was vacant. Once more Edward could hold a Scottish parliament. This was convened at Berwick for the octave of the Assumption (22nd August) and was attended not only by clergy and barons, but also by knights and town representatives.2 Here FoeJera, i. 783 f. ; Prynne, op. di. pp. 533 ff. Roe. Parí. i. 107 ff. ; Stevenson, Documents, i. 377 ; Acts of the Parliaments of Scotland, i. 446; Cal. Chancery Warrants (1244-1326), p. 38; Cal. Diets. Scotland, ii. 160 ; Rotuli Scoiine, i. 17-21 ; the writs in the Foedera, i. 787-9, 792, 799, are from Rotuli Scotiae. 9 Rot. Parl.i. nof. 10 Both on the English and the Scottish side, this case was regarded as the causa causans of the final breach ; cf. Fordun, Chronica, pp. 321 f. ; Palgrave, Documents, pp. I42ff. ; Prynne, op. cit. pp. 535 ff. It is to be noted that the appeal of Macduff in the first instance came into the king's bench in the Trinity term, 1293, then to the Michaelmas parliament of the same year. The case was adjourned until the parliament after Easter 1294 and there, owing to the English king's preoccupation with other business, received a further adjournment to the Easter parliament of 1295. This last parliament was never held and, by direct command of the king, the case came again before the king's bench where judgement was sought, on behalf of the King of England, against both parties for default ; Rot. Scotiae, i. 20; Coram Rege Roll, No. 137 (Trin. 1293), m. 9.; Rot. Pari. i. 113; Coram Rege Roll, No. 138 (Mich. 1293) m. 39; Palgrave, Documents, p. 14$; Prynne, op. cit. p. 537 The statement that ' postea continuata fuit usque ad Parhamentum in festo Sancti Martini anno regni ipsius Regis Anglic vicésimo tercio apud Sanctum Edmundum publice convocatum ' is, however, a fabrication (Palgrave, Prynne, loc. cit. ; see above, p. 306, n. 3). 1 The similarities of the relations between the Irish and the Scottish parliaments and those of England will be discussed elsewhere. 2 Instrumenta Publica (Ragman Roll), pp. 113 f., 180; Stevenson, Documents, ii. 31 ; Gough, Itinerary of Edward I., ii. 282-3. Note that the summons allowed 7

8

xiii 310


the French alliance was denounced and fealty and homage again sworn to Edward. Here, too, the magnates were given formal permission to retain their lands, but only on condition that they came to the king's parliament at St. Edmunds in November.3 So begins a new phase in the parliamentary history of Scotland. In future, the king's parliament in England was, it would seem, not only to constitute on occasion a court of appeal from the Scottish courts, but it was to serve also, as it did for Ireland, as a court of first instance for certain parliamentary business.4 The St. Edmunds' meeting was, to use the term applied by Palgrave to the autumn assembly of 1305, the first * Union Parliament.'6 It is, of course, true that Scots had on earlier occasions been present in Edward's parliaments. Those magnates who held lands on both sides of the border came as English tenants ; even of the Scottish king, this had been true, whatever implications the King of England might seek to place on his attendance. Again, we find the government of Scotland sending a delegation to the Westminster parliament of Easter I29o,6 but this act had no more significance than the dispatch of English delegations to the parliaments of the Scottish king ; these delegations are but part of the machinery of diplomacy. Henceforward, if the Scots came, it was to be on a new footing. However, within little more than six months, Wallace had risen and the weary work of conquest was all to do again. But by 1304 the task seemed near completion once more, and once again Edward held a parliament in Scotland, convened for midan interval of forty days from loth July, the date of Balliol's formal abdication. We have a hint that the proceedings did not pass without disorder : Gilbert of Umframvill, son of the Earl of Angus, struck Hugh of Lowther (sheriff of Edinburgh) in parliamento ; Stevenson, Documents, ii. 81 ; Cal. Close Rolls (1288-96), pp. 488 f. 8 ' A la Touz Seintz,' so the contemporary narrative of Edward's Scottish expedition of 1296 ; Instrumenta Publica, p. 180, and other references as in preceding note. The parliament was actually summoned to meet ' in Crastino Animarum.' Pari. Writs, i. 47. Of the proceedings at the parliament we know very little ; Pierre de Langtoft comments : ' Des barouns de Escoce . . . ne fu resun renduz ne doné jugement ' (Chronicle, ii. 274). 4 The replies to the petitions in the Westminster parliaments of 1305 are instructive ; a large proportion of the petitioners are referred to the Scottish courts and, as we shall see, one to the Scottish parliament ; Maitland, Memoranda de Parliamento, pp. 168 ff. There was no intention that the English parliament should monopolise cases which in the usual course would have found their way to the Scottish parliament or other Scottish courts. 5 Palgrave, Documents, Introduction, p. eli. 6 Acts of the Parliaments of Scotland, i. 441 ; Foedera, i. 730.

of Edward I.

xin 311

Lent at St. Andrews.7 In this parliament judgment was given against William Wallace, Simon Fräser, and the irreconcilable» who held Stirling against the king ; all these were declared outlaws secundum iuris processum et leges Scolicanas. Here, too, all those who had entered the king's peace formally submitted to the king's will as to their ransom, and he, we are told, exacted nothing on this occasion 8 ; this question was, however, merely respited.' At the parliament, which may have lasted a fortnight or longer,10 practically every man of note in Scotland seems to have been present, except the irreconcilables and those excused attendance for reason of ill-health or because their services were required elsewhere.1 The precedents of 1296 were apparently borne in mind. To the next parliament at Westminster in Lent 1305 certain of the Scottish magnates were summoned,2 although only, it would seem, for a preliminary discussion of outstanding questions. Some religious houses in Scotland and a number of humbler suitors from Scotland, including some in the king's service, had petitions to present, and for the first time—though this may perhaps be an accident of preservation—we have a roll of Scottish petitions similar to the rolls of petitions for England and 7

If forty days' summons was given, the writs must have issued before the end of January. The only document in the nature of a writ that has survived is a privy seal writ to Nicholas Hay, dated 5th March, requiring him to be present ' a ce prochain Lundy de My Quaresme ' : Stevenson, Documents, ii. 471. But in the circumstances there were bound to be some who received short notice. 8 Apart from a note of the oath of fealty sworn there by the bishop of Glasgow (Palgrave, Documents, pp. 345 ff.), the only account of the proceedings of this parliament comes from one manuscript of Trevet (Annalcs, p. 402, n. 2) ; it appears to be trustworthy. Fordun, p. 336, has a brief, inaccurate note of the meeting. 9 It was not settled until October, 1305 ; see below, p. 313. 10 See the letter to John of Argyll, dated 22nd March (Stevenson, Documents, ii. 477 f.) ; this seems to have been written during the session of the parliament, to which he had sent proxies, he himself being detained at home by ill-health. Edward remained at St. Andrews until well into April ; Gough, of. cit. ii. 236. 1 Even those engaged in keeping watch on the Forth were at the kst moment instructed to come to the parliament (Stevenson, Documents, ii. 471 ; Cal. Documents Scotland, ii. 384, No. 1471). John of Argyll, excused from attendance, was found duties at home, for which see the letter cited in the preceding note. z

The only names of which we can be sure appear to be the bishop of Gksgow, the earl of Carrick and John Mowbray, together with English officials in Scotland such as John Segrave and John Sandale (Parí. Writs, i. 155, loo; Maitland, Memoranda de Parliamento, pp. 14, 292 f.).

xiii 312


Ireland.3 The memoranda of proceedings at the parliament show that a separate body of auditors was appointed for Scottish petitions, as for those from Ireland and the Channel Islands, Gascony, and, presumably, England.4 The advice of the Bishop of Glasgow, the Earl of Carrick, and John Mowbray was taken concerning the formal arrangements to be made for a parliament to deal with the settlement of Scotland. As to place, that, they thought, must suit the king's convenience ; the day should not be sooner than midsummer, since in the meantime it would be necessary to assemble the ' commune ' of Scotland ; they further suggested that ten commissioners should be chosen to represent the commune. Accordingly, the Bishop of Glasgow, the Earl of Carrick, and John Seagrave, together with John Sandale, the chamberlain of Scotland, were required to assemble the commune at Perth on 28th May to elect ten representatives to come to a parliamentum Scorie, to be held at London in three weeks of midsummer.5 But in the meantime, it would seem, the king's lieutenant was expected to hold a parliament in Scotland. This was not the assembly at Perth—which appears to have no claim to the title of parliament 6 —but a separate meeting at Scone already arranged before the petitions presented at the Lenten parliament were answered. We have knowledge of only one reference to this parliament, contained in a reply to be found on the roll of Scottish petitions : ' Sequantur coram tenente locum Regis ad parliamentum de Scona, et si magnates terre Scocie velini consentire, certificet Regem et Rex ordinabit.' 7 This piece of evidence, slight as it may be, fits in perfectly with all our other evidence and warrants the inference that Edward intended to set up for Scotland a judicial system similar, as far as might be, to that existing for Ireland, and to extend to Scotland the relationship already existing between the English courts and those of Ireland. 3 Exchequer Parliament Roll, No. 12, m. io; printed Maitland, Memoranda de Parliament, pp. 168-188. As we hope to show elsewhere, mm. 11 and 12 belong to the September parliament. 4 Memoranda de Parlamento, p. 3 ; cf. Introduction, pp. Iviii. ff. 6 Ibid. pp. 14 ff. ; Pari. Writs, i. 155 f., from Vetus Codex. 6 Perhaps it should be termed a congregatio. Cf. Memoranda de Parliament, p. 171, No. 276 : ' inquirant de huiusmodi consuetudinibus ad proximam congregationem in Scocia....' Perhaps this term should also be applied to the assembly for the codification of Scottish law, contemplated at the September parliament of 1305. 7 Exchequer Parliament Roll, No. 12, m. io ; printed in Memoranda de Paritàmento, pp. 178 f. There can be no mistake as to the reading.

of Edward I.

xm 313

The term parliamentum Scodei applied to the forthcoming meeting at London, may give us pause, but if the original intention had been to hold an exclusively Scottish parliament at London,8 the idea was speedily dropped ; the parliament actually summoned was common to England and Scotland, and in the event the meeting was prorogued first to the Assumption and then to the octave of the Nativity of Our Lady (i £th September).9 The Scottish business included not only the setting up of a new administration from lieutenant down to sheriffs and constables of castles, but also the hearing of Scottish petitions. Other matters dealt with included the exile of Alexander Lindsey and Simon Fräser and other possible disturbers of the peace ; and the question of ransoms was now finally settled.10 Arrangements were made for the codification of Scottish law ; and the lieutenant and a commission, to be elected by the assembly which would discuss the business, were to come before the king at the next parliament at Westminster in three weeks of Easter with a statement of the agreed laws and the points in dispute requiring to be resolved. The same parliament was to consider further the replacement of unsuitable coroners.1 Subsequently, the lieutenant and people of Scotland were notified that this parliament had been prorogued until the Ascension.2 The intention was perhaps to unite in one parliament, as in the previous year, all parliamentary business coming from all parts of Edward's dominions which merited his personal attention ; and had nothing happened to disturb the course of events, the Westminster parliament, which was in session for many days in the late spring of 1306, would have settled the Scottish legal code and dealt with the several Scottish matters left over from the autumn parliament of 1305, and with any fresh petitions that might have been presented. But long before Ascension-tide, the Red Comyn had been slain in the Greyfriars of Dumfries and a King Robert had been The phrase ' dies parliament! Scocie ' (Memoranda de Par/lamento, p. 15) is curiously reminiscent of the French formula ' dies ducatus Aquitanie,' i.e. the day when the affairs of Guienne came before the Parlement of Paris ; but this may be mere chance. 9 Pari. Writs, \. 158 ff. 10 The Forma Pads Scode, or rather its confirmation, is dated i $th October, 1305 ; Rot. Parí. i. 2i i f. Cf. p. 214 : ' que come ordene feust en le derrein Parlement a Loundres.' 1 2 Par!. Writs, i. 161 f. Ibid. i. 162. 8

xiii 314


crowned at Scone. Perhaps some Scottish petitions came to Westminster, but it is unlikely that any news came of the assembly that had been set the task of codifying Scottish law.3 The last of Edward's parliaments, that of Carlisle, did indeed consider, or re-consider, legislation which the king ordered to be applied in Scotland as in England, Ireland, and Wales—4 another piece of evidence of the policy of assimilating the constitutional position of Scotland to that of Ireland. There were, too, a few, but apparently very few, petitions presented concerning Scotland : 5 obviously it was not a time when an English parliament would be burdened with a deal of domestic business from over the border. We have but a note to add on the national government of Scotland during the last ten years of Edward's reign. Just as the guardians had held parliaments during the absence of the Maid of Norway, so the guardians appointed after Wallace's rising appear to have held parliaments in the absence of Ballici. We hear of a parliament held at Rutherglen, near Glasgow, in the second week of May 1300 and adjourned until midsummer ; * another seems to have been held in Aberdeen in September I3O2.7 The English writer, to whom we owe the notice of the former meeting, speaks of it as a parliament of the magnates—' les grauntz seigneurs d'Escoce tindrent leur parlement a Rotherglen ' 8 ; but 8

We know, however, at present extremely little of the business of this parliament. Early Statutes of Ireland, p. 240. 6 Rot. Pari. i. 201, 204, 214 f.; Cal. Chañe. Warrants (1244-1326), p. 259. * Ante, xxiv. 245 ff., citing Ancient Correspondence, xxx. No. 114. The Nativity of St. John the Baptist (24th June) is more likely to be intended by ' a la seynt Johan ' than the feast of St. John the Evangelist (27th December) as suggested ibid. p. 246, n. 7 Ibid. p. 325, citing Ancient Correspondence, xxi. No. 171. Another meeting held apparently in 1301, was possibly a parliament; our knowledge of it comes from Fordun, sub anno 1300 (Chronica, p. 332), who seems to be citing a letter addressed by John of Soules as guardian to Boniface VIII., naming William archdeacon of Lothian, Bertrand Biset and William of Eaglesham as proctors at Rome. This is done ' cum consilio prelatorum, baronum et ceterorum nobilium communitatis regni Scocie.' There appears to be no question that the proceedings at Rome took place in 1301. In the report of Bertrand Biset's speech (Chronicles of the P ids and Scots, p. 271), there is a reference to a previous hearing soon after Whitsunday ; obviously, therefore, the proctors must have been appointed a good many weeks before that, and a date, January-March, 1301, would accord both with this document and Fordun's statement. No earlier date is possible ; see ante, xxiv. p. 248. 8 Ancient Correspondence, xxx. No. 114. 4

of Edward I.

xm 315

it is legitimate to assume that the guardians summoned the meetings. It may, however, be asked, are these in any technical sense parliaments or are they just assemblies of partisans, like the parlement^ for example, which Marguerite of France held at Macón with the barons of Burgundy in October 1281 ? 9 We depend for our knowledge of these Scottish parliaments on the reports of English agents, and we possess nothing in the form of an official record of the meetings. But we may note that when an English agent is giving an account of the famous gathering at Peebles, where the Bruce and Comyn parties came to blows, he does not give the name of parliament to this meeting of magnates, nor was it more than a council of war :10 yet if English agents in Scotland used the word parliament in a non-technical sense, the name would have been as appropriate for the meeting at Peebles as for the meeting at Macón. Again, there is a suggestion of formality in the adjournment of the parliament at Rutherglen in order to permit the Earl of Buchan to be present. There may then be in these agents' reports a more technical use of the word ' parliament ' than we might perhaps suspect. We have also to take into consideration the evident anxiety of the Scottish leaders to establish continuity and to maintain constitutional forms ; the election of guardians is proof of this. But a legitimate government must keep in being the national system of administration and justice, particularly if the invader is himself, as Edward was, intent on setting up a new administration which could claim continuity with the past and was plainly intended to be efficient. Bruce, it is clear, reconstituted the administration of the country under his government at the very first moment, and as early as March 1309 he was holding with due formality a parliament at St. Andrews.1 We must, we think, credit the guardians with a similar policy, and believe that they See Edward's letter to Charles, prince of Salerno (Foedera, \. 600) and Marguerite's letter to Edward (Champollion-Figeac, Lettres de Rots, i. 265 f.). On this assembly, see Bréquigny, in Memoires de ¡'Académie des Inscriptions et Belles Lettres, Ixiii. (1786), 475 ff. ; F. Fournier, Le Royanme d'Arles et de Vienne, pp. 250 f. 10 NationalMS'S. of Scotland, II. vüi. ; Bain, Calendar, ii. 525. 1 Acts of the Parliaments of Scotland, i. 459. It is of interest to note that an English chronicler, writing apparently under Edward III., related ' coment Sire Roberd le Brus si tost cum il fust revenuz en Eskoce fist assembler son parlement al Abbeye de Skone pur enquere ky tendrá ou lui e ky noun, pur ceo ke il mist chalenge au reaume ' : he, however, puts the meeting at Dumfries and the murder of Comyn kter (Le Liverc de Reis de Brìttanie (R.S.), pp. 318 ff.). 9

xiii 316


attempted amid the interruptions of warfare to carry on the normal administration of the country between the years 1297 and I304.2 We append a table of Scottish parliaments from the time of Edward I.'s recognition as overlord until his death. In this table we have excluded parliaments in England attended by Scottish magnates and petitioners, and we have included parliaments held by Balliol, by the guardians, and by Edward's lieutenant. Compiled in this way, the table suggests that, whatever interruptions there may have been, there was no break in the continuity of parliaments in Scotland, under whosesoever authority they were held. This we believe to have been substantially the fact.

TABLE OF SCOTTISH PARLIAMENTS, 1291-1305. [Where there is a doubt whether a meeting is to be recognised as a parliament, the term and place have been enclosed within square brackets. Parliaments held by Edward I. or with his authority are printed in roman type, other parliaments in italics. The evidence for each parliament has been discussed in the text.] YEAR.

TERM.

PLACE.

1291

[12th July]

[Stirling]

1292

Trinity

Berwick

Michaelmas

Berwick

AUTHORITY.

Feedera^ i. 774. Prynne, iii. 509. Stevenson, Documenti, i. 312 ff. Rot. ParL \. 105 f. (C.P.R., 1281-92, pp. 501 f.). Foederd) i. 761. Palgrave, Documents, Illustrations, No. iv. Foedera, i. 761. Rishanger, 361-2. Prynne, iii. 520.

2 Cf. letter to Edward I. written in July 1297, especially the significant passage ' e en aukun counte les Escotz unt establi e mys bailifs e ministres ' (Stevenson, Documents, ii. 207). See also the reference to pleas held in Lent 1299-1300, ' coram domino lohanne Cumyn comité de Buchan' tune iusticiario Scocie ' : the document is witnessed by 'domino lohanne comité Atholie tune vicecomite de Abirden' among others (Lieer S. Thome de Aberbrothoc (Bannatyne Club), i. 164, No. 231).

of Edward I.

xm 31?

Parliaments of John Balliol. YEAR.

TERM.

PLACE.

AUTHORITY.

1293

Candlemas

Scone

1294

2nd August Candlemas

Stirling Lanark

1295

6thjufy

Stir/ing

OctoberNovember &

Lanercost, 162. Hemingburgh, ii. 77. 4 Fordun, 327. *

Edinburgh

Lanercost, 167.

22nd August

Berwick

Instrumenta Publica, 113 f., 18o. Stevenson j Documents, ii. 81. (C.C.R., 1288-96, p. 489.) Palgrave, Documents, 331,342-3.

1296

Acta Pari. Scot., i. 445. Cal. Dacts. Scot/ana, ií. Nos. 687-8. jfcta Par!. Scot., i. 448. Stevenson, Documents, i. 407-8,

410,415.3

Parliaments of the Guardians. »297

1298

1299

no evidence.

1301 1302

i oth May Rutherg/en Midsummer [January-March] Sth September Aberdeen

1

no

1304

Mid-Lent

St. Andrews

1305

After Lent 6

Scone

1300

3°3

3

evidence.

Ancient Correspondence, xxx. No. 114. Fordun, 332. Ancient Correspondence, xxi. No. 171. Stevenson, Documents, ii. 471, 477 fPalgrave, Documents, 345. Fordun, 336. Trevet, 402 Ma.iua.na,Memoranda,pp. 178 f.

Mr. D. W. H. Marshall kindly drew our attention to these references. These give Scone as the meeting place. 6 6 For date, see above, p. 304, n. 5. Held by the king's lieutenant.

4

XIII 318

NOTES Page 300, 1.1 With this paper two cardinal facts must be borne in mind.The kings of Scotland were English barons, in not infrequent attendance at the English king's court, and the common law of Scotland resembled the common law of England. There can be no reasonable doubt that the relationship of the Scottish kings, much as we find it in the thirteenth century, dates back to the tenth century when King Edgar of England granted Lothian to King Kenneth II of Scotland on terms that created a tie of vassalage between them. (Richardson and Sayles, Governance of Medieval England, p. 406). Inexact as it is, we use this later term for want of a better. Kenneth looked to Edgar as his lord and the relationship between them was, in fact if not in name, that of a vassal to his suzerain, a relationship closely parallel to that of the Norman kings of England to the kings of France. We must not read too much into this relationship though it emerges again in later centuries, or suppose that it had any permanent political consequences. It has its importance nevertheless because it testifies to the fundamental identity of the Lowlands with the southern kingdom. And whatever disruption was brought about by the catastrophic political changes in England in the eleventh century, the assimilation of the institutions in the two countries suffered, at most, a check. The names of the principal claimants to the crown of Scotland in 1291, Ballici, Bruce, Comyn - or, as we might write them, Bailleul, Brix, Comines - witness in themselves to the extension to Scotland of the French ways of life and thought which, since the Norman Conquest, had overlain English society. We should expect therefore to find a form of great council emerging, to which the name of parliament would be applied, at much the same tune as the institution and the name emerged in other countries ruled by a French-speaking aristocracy. n.2 Above, I. 146ff. 301, n. 1 See also Cal. Close Rolls, 1256-1259, p.311, for a letter in 1258 to the sheriffs of Yorkshire and Northumberland which speaks of 'parleamentum suum captum apud Edeneberg' '. 302, n.4 See also Rot. Pari., i. 107f: Pleas before the guardians at Edinburgh on 18 October 1291 were adjourned and the Four Burghs were to be consulted 'contra proximum parliamentum' (judgement was given on 5 May 1292 and appealed before Edward I at Newcastle on 22 December following). This is a strong argument in favour of the continuity of parliaments in Scotland. 306, n.3 It will be seen that the nature of the assembly at Norham caused us considerable doubt, now removed by the survey of the documents connected with the Great Cause in E. L. G. Stones and G. G. Simpson, Edward I and the Throne of Scotland (1978), especially the entry on Liberate Roll, no.67, m.5, which shows that two learned men from Oxford were summoned to attend the king's parliament at Norham in 1291. See also Rot. Pari. i. 89 for

XIII 319

306, 307, 309, 312, 313,

n.3 n.5 n.l n.3 1.27

314, n.8

litigation at Norham on 25 May 1291 and King's Bench Roll, no 192, m. l Id, for the ordinance made before the king and council at Norham a Month after Easter 1291. Above, VI. 544, m.5 Throughout for ante read Scot. Hist. Rev. Below XV. Below, XIX. 149f. For doubts whether the assembly in May 1306 was a parliament see below, XXVI. 24-30. See Scot. Hist. Rev., XXIV. 245f.

XIV The Guardians of Scotland and a Parliament at Rutherglen in 1300 of the Scottish medievalist has fallen in hard places, THEforlotthough the War of Independence marks the gravest turning-point in the history of medieval Scotland, he can lay his hand upon little Scottish contemporary material wherewith to illuminate its course. In all probability, in those troubled times when the country was divided against itself despite the presence of a common foe, there was little or no attempt to keep records at all,1 and the public archives of England have therefore been ransacked for such evidence as they can afford. The researches of Mr. Bain, together with those of his distinguished predecessors, Palgrave and Stevenson, would seem to have left future students little hope of supplementing their labours in this direction, yet the letter, printed below, shows that they are not yet to be altogether deprived of the pleasure of discovery. It is a hitherto unknown document of considerable interest, in not only giving us a slight glimpse into an unrecorded ' parliament ' of magnates —the non-technical terminology, it must be remembered, of an English official—but in also lifting for one brief moment the mist of obscurity which has enveloped the actions and even the 1

Chancery and Exchequer enrolments do not seem to have been resumed until Bruce had seated himself on the Scottish throne. The earliest extant roll of the Register of the Great Seal belongs to the year 1306, that of the Exchequer to 1326. Nor does there seem to have been appointed any Clerk of the Rolls after the death of William of Dunfreis in 1292 until after the accession of Bruce. See Livingstone, Guide to the Public Recoras of Scotland, p. 223.

xiv 246 The Guardians of Scotland and a identities of the leading men at a critical time. It recently came to light from amongst that heterogeneous collection of letters at the Public Record Office which is known as Ancient Correspondence,2 a class of documents which historians have been prone to neglect too much in the past, in spite of the fact that it will yield much trouvaille to those who are willing patiently to face its undoubted palaeographical difficulties.3 A son treschier amy si luy plet sire Rauf' de Mantone le soen Johan de Kingestone salut3 com a luy meismes. Sire, endreyt des noueles de nos parties vous fa3 a sauoir qe le mardi procheyn apres la feste seint Johan lewangeliste en may,4 les graunt3 seigneurs descoce tindrent leur parlement a Rotherglen pres de Glasgu, e leuesqe de seynt Aundreu e mons' Johan Comyn furent a descord, e a la partie leuesqe se tyndrent le seneschal descoce e le conte de Atheles. E mons' Johan Comyn dist qe il ne voleyt mye estre gardeyn du roiaume adioint oue leuesqe, mes au darrein furent eus acordc3, e unt eslu mons' Ingram de Umframville de estre un des gardeyns du roiaume en leu le conte de Carrik'. Et pur ceo qe le conte de Boughan ny fut mye, qe il estoit ale en Gauway por trere a luy les Gauways, a ceo qe hom dit, il unt aloigne leur parlement iusqe a la seynt Johan 5 en meismes le leu, a quel iour le conte de Boughan e tou3 les graunt3 descoce serront oue leur power, a ceo qe ieo ay entendu. A recent writer has come into court to enter a vigorous appeal against the judgment which historians have passed on the vacillations and self-seeking of Robert Bruce after 1296, inasmuch as it has been partly based on the inaccurate conjectural dating of certain documents by Mr. Bain.6 With this warning before us, it becomes all the more important that we should, in spite of obvious difficulties resulting from the paucity of material for purposes of collation, assign this letter to its correct year. Fortunately, this is possible. The field of search is roughly circumscribed by the fact that it was not until 25th November, 1298, that the writer of the Anc. Corr. vol. xxx. No. 114. See P.R.O. Lists and Indexes, xv. For an illustration of the use that can be made of it, see Trans. Royal Hist. Soc. (ya. series), vol. iii. pp. 188-195. 4 The feast of St. John ante Portam Laiinam is on 6th May. 6 The day of St. John, Apostle and Evangelist, is 27th December. 'E. M. Barren, Scottish War of Independence (1914). 2

3

Parliament at Rutherglen in 1300 xiv 247 letter. Sir John de Kingston, was sent to Edinburgh as constable of the castle and sheriff of the county,7 whilst on 24th February, 1303, Sir John de Mantón, to whom the missive was addressed, met his death in tragic circumstances at the battle of Roslyn.8 Within this period of about four years, the problem of the precise date is inseparable from that of the Guardians of Scotland at the time. On this more delicate question, our document throws a flood of light which enables us to escape from the vague statements which have so far had to suffice.9 The disaster to the Scottish arms at Falkirk in July 1298 had been followed by the resignation of the Guardianship by Wallace. His successors were John Comyn the younger of Badenoch and Robert Bruce, Earl of Carrick. Two documents can be cited in evidence. In the first place, a writ, bearing the definite date of 2nd December, 1298, was issued by Robert Bruce in his own name and in that of his fellow-guardian, John Comyn.10 Secondly, a letter addressed by Philip of France to ' Robert de Brus, Earl of Carrick, and John Comyn the son, Guardians of Scotland in the name of King John,' which Mr. Bain believed to belong to the year 1302, has been conclusively shown to have been dispatched three years earlier on 6th April, 1299.* It was n°t until the early autumn of 1299 that their number was increased ''Cal. Patent Rolls ([292-1301), p. 388. 8 He held the important wardrobe office of Cofferer from 1297, and in the capacity of paymaster of the army he was frequently in Scotland (Calendar of Documents relating to Scotland, ii. No. 1342). He was not content to confine himself to the peaceful routine of his clerical duties, and his military activities led to the abrupt close of a career which had bright prospects. For some additional information on his activities in Scotland, drawn from unprmted Exchequer Accounts, see T. F. Tout, Chapters in Mediaeval Administrative History, ii. pp. 21-22 ; 119, n. 3. 9 The article on Soulis in the Diet, of Nat. Biog. lui. 272, states that 'in 1299 he (Soulis) was appointed by John Ballici, who had escaped, co-guardian of the realm of Scotland with John Comyn the younger,' obviously a careless misreading of Fordun, Chronica (ed. Skene), p. 331. The writer of the article on Robert Bruce (D.N.B. vii. 117) makes John de Soulis act as a fourth Guardian along with Comyn, Bruce, and Lamberton, Bishop of St. Andrews. Mr. Lang in his History of Scotland, i. p. 188, avoids the difficulty of chronology by simply saying that ' the younger Comyn of Badenoch, Soulis, Bruce (later king), and Lamberton , . . shared the authority which the hero (i.e. Wallace) laid down.' The statements of Burns, War of Independence, ii. p. 79, are hopelessly inaccurate and vague. 10 Balfour Paul, Scots Peerage, ii. p. 218, n. io ; cited Barron, p. 137. 1 It is to be found in C.D.S. ii. No. 1301, and (in full) on p. 535 ; the reasons for its redating are in Barron, op. cit., pp. 132-137.

xiv 248 The Guardians of Scotland and a by the addition of William Lamberton, Bishop of St. Andrews, as principal Guardian with the custody of the castles.2 For what length of time this second arrangement remained in force has so far been unknown. Mr. Barron, in his strenuous efforts to vindicate the character of Bruce, has advanced arguments based on negative evidence. Although he has pointed out that from November 1299 until February 1302 history has kept an obstinate silence concerning the activities of Bruce,3 yet he has asserted that ' for nearly four years the young Earl of Carrick remained one of the Guardians of Scotland.'4 In order to account for so long a co-operation between such rivals as Bruce and Comyn, he has put forward the hypothesis that there was some definite agreement between them with regard to the Scottish crown,5 and has insisted that Bruce ' did not desert his colleagues at a time when they were actually in the field.'6 Our document controverts these views by showing that Bruce held the office of Guardian for less than two years. It states that at a parliament of Scottish magnates at Rutherglen, held in the May of some unspecified year, John Comyn and William Lamberton, after fierce discussion, ' had elected Ingram de Umfraville to be one of the Guardians of the realm in place of the Earl of Carrick.' The only reference to Umfraville as a Guardian is in connection with the appointment of one Andrew, a Friar Preacher, to the see of Argyle, when concurrent letters were sent to the clergy and the people of the diocese, and to the bishop of St. Andrews, John son of John Comyn, and Ingram de Umfraville, the Guardians.7 They were dated XV KaL lanuarii Pontificates nostri (se. Boniface Vili.) anno sexfi, that is to say, 18th December, 1300. It follows, therefore, that Umfraville's election must have taken place on loth May previously.8 C.D.S. ii. No. 1978. The three Guardians are named together in a document dated I3th November, 1299 (ibid. No. 1109). There can be little doubt that the bishop was given the chief position in order to prevent his colleagues from quarrelling over the question of precedence. 3 4 5 6 Of.cit. p. 130. p. 139. p. 146. p. 140. 7 Cai. Papal Registers (Letters), i. p. 590. I have to acknowledge my indebtedness for this invaluable reference to Mr. D. W. Hunter Marshall. The letters are printed iit extenso in A. Theiner, Velerà Muntmenta, p. 169. 8 After December 1300 we have no documentary evidence to show how long he retained office, or exactly when Sir John de Soulis became cusios regni Scocie, a& he describes himself in a letter to the king of France, dated Z3rd February, 1302 (dcta Pari. Scot. i. p. 454). All we can say with confidence is that John Comyn 2

Parliament at Rutherglen in 1300 xiv 249 It is easy to see why the Earl of Buchan was not present at the parliament of 1300 and occupied instead in gathering the people of Galloway round him. For as early as 3Oth December of the previous year, Edward I. had issued writs of military summons to his barons, commanding them to appear at Carlisle on 24th June, I3OO.9 In the first week of the succeeding July, the English king crossed the Solway and devastated Galloway. It is noticeable that the Earl of Buchan in his opposition in this district received his strongest assistance from the younger Comyn and Ingram de Umfraville,10 and the name of Robert Bruce is conspicuously absent. The letter requires little further in the way of comment. All the available evidence points to the fact that from the very outset John Comyn and the Bishop of St. Andrews found it impossible to work amicably together. Though Lamberton may have made the independence of the Scottish Church his main object, there can be little doubt that he was by no means indifferent concerning under whose banner that object was achieved. He had good reason for believing that Ballici, if restored, would be incapable of the strong action which was vital, and to the Comyns, the chief of the Balliol partisans, the bishop was not persona gratissima, for his elevation to the see of St. Andrews had been made over the head of William Comyn, brother of the Earl of Buchan, who had previously been elected by the chapter.1 Almost immediately strong ties of sympathy can be discerned between the wily bishop and Robert Bruce : the ominous scuffle in Selkirk Forest in August 1299, which saw the younger Comyn leap at the throat of Bruce, saw also the Earl of Buchan close with Lamberton; in 1304 the two entered into a close and very secret band ' against the machinations of their rivals,'2 and in 1306 the bishop was one of the first openly to espouse the cause of his ally. It is a matter of pure surmise what the precise grounds of quarrel may have been in May 1300, which urged the younger Comyn to refuse to be associated any longer in the Guardianship with Bishop Lamberton. The latter may have taken exception the younger remained a Guardian throughout until 1304 (Fordun, CAronica, p. 331). And cf. Bain, The Edwards in Scotland, p. 40, where reference is made to a letter from the king of France ' to Sir John Comyn, now sole Guardian.' i0 *.Parl. Writs, i. p. 337. Rishanger, p. 441. l Diet. of Nat. Bieg., art. Lamberton, xxxii. p. 19. 2 Palgrave, Documents, p. 323.

xiv 250 Parliament at Rutherglen in 1300 to the choice of Sir Ingram de Umfraville as Bruce's successor, inasmuch as he was one of the stoutest adherents of the BalliolComyn faction, and in fact after 1306 opposed Bruce se* strenuously that in 1321 he could give satisfactory proof that he had never left the English king's allegiance.3 At any rate, if we may judge from the fact that the two supporters of the bishop mentioned specifically in the letter, the Earl of Athol and the Steward of Scotland, were both men who had in the past belonged to the Bruce party and in the future struggle would place themselves at the side of Robert Bruce the younger, we may with some confidence suggest that the quarrel was not unrelated to the Earl of Carrick, who had certainly retired from his responsible position. What secret intrigues may have been on foot are hidden from us, but Bruce could never have forgotten that he was the representative of the claims of his line to the Scottish throne. Whether his schemes included an attempt to secure the independence of his country by force of arms before he was driven to it in desperation after the murder of Comyn, has been made a matter of some controversy, but he was certainly always playing for his own hand. To continue in opposition to Edward I. meant risking his own future for the benefit of others, and he may have momentarily cherished the hope, however deceptive, that a crown which could not be obtained by fighting at that precise moment against the English king might be obtained by fighting for him. At all events, the facts are that two months before Edward crossed the border in the formidable invasion of 1300,. Bruce was not in the vanguard of opposition, and by April 1302 he had negotiated a complete rapprochement with Edward, to whom he gave considerable aid in the campaigns of 1303 and 1304. 3

C.D.S, iii. No. 721.

NOTES Page 246, n.5 For 27 December read 24 June. 247, 1.3 For John read Ralph. 1.4 For Roslyn read Rosslyn.

XV THE IRISH PARLIAMENTS OF EDWARD I.

IT has been our endeavour to set down, as clearly as surviving documents will permit, an outline of the early parliamentary institutions of Ireland. If this outline has an unfamiliar shape, it is, we trust, because we have sought to interpret medieval documents as contemporary readers would have done. This is not, perhaps, a method usually adopted. For the constitutional struggles of the seventeenth century and the triumphs of nineteenth-century democracy have cast their shadows over the medieval parliaments of England, and, in consequence, until those shadows are dispersed, the nature of early English parliaments can be but imperfectly understood. And since everything that has been written on the medieval parliaments of Ireland has been influenced by the conceptions of English constitutional historians, Irish parliamentary history has of necessity been in just as bad a case ; indeed, worse, for modern Irish politics have in turn obscured the history of the medieval parliaments of Ireland. Therefore, one historian will write of Home Rule under Edward I ;l another will gravely claim that the first Irish parliament was broiight into being by direct act of the Crown, and not through an act of the English parliament, that it had the same status as the parliament of England, and that it was not subordinate to, but co-ordinate with, the parliament at Westminster;2 a third will speak of constitutional advance, and the principle of government by elected representatives.3 All regard a Dublin parliament of 1297 in the same light as English historians have regarded the "model" parliament of 1295, and they consequently hail the justiciar John Wogan as the father of the constitution.4 'Edmund Curtis, History of Mediaeval Ireland (1923), pp. 189ff. 'Stephen Gwynn, History of Ireland (1923), p. 121. 3 G. H. Orpen, Ireland under the Normans (1920), iv, 40 f. 4 In four sentences and a footnote, the latest writer on early Irish parliaments admirably summarises the now traditional view, but unfortunately adopts it; M. V. Clarke, ' ' Irish Parliaments in the Beign of Edward II, ' ' in Trans. Boyal Hist. Soc. (IV Series)' vol. ix, p. 30.

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These ideas appear to us to be fundamentally mistaken and to depend as much upon the selection and unconscious distortion of a small part of the evidence as upon the neglect oí the greater part of it. There can be no doubt that the Irish parliaments of Edward I followed the same lines of development as his English parliaments, and that they were, as Sir William Bctham said, "the king's high courts of justice"5—although we would not accept that phrase as a full or entirely satisfactory description. For our knowledge of early Irish parliaments, our two principal sources are the so-called Justiciary Bolls of Ireland and the English records relating to Ireland to be found in various collections in the Public Record Office.0 The former have now perished, but not before they had been fully calendared to the end of the reign of Edward I ;7 perished with them are tin Irish Pipe Rolls, which recorded the fines inflicted for non-atteiidance at parliament.8 A few documents are preserved in cartularies;9 and the scanty chronicles of the Pale supply at least one valuable piece of evidence.10 It is unlikely that very much more will be discovered to add to what is already in print,11 and there is no hope that the history of the early parliaments of Ireland can ever be told so fully as one day will be told the history of the early parliaments of England. But sufficient remains to reconstruct the outlines and to fill in not a few of the details. The ultimate origins of the parliaments of Ireland we do not propose to discuss. The first reference to a parliament eo nomine which we have found is in 1264, when Richard of Rochelle, the justiciar, held a parliament in the Trinity term at Castledermot ;:a a record of a parliament at Dublin in the Michaelmas term of 1269 appears also to have survived in the transcript, on a plea roll, of a statute for regulating weights and 5 Dignities, feudal and parliamentary (1830), reprinted, with additions, as Origin and history of the constitution of England and of the early parliaments of Ireland (1834), p. 258. * See Calendar of Documents, Ireland (1171-1307), in five volumes, edited H. S. Sweetman and G. F. Handcoek (1875-1886). 7 Calenda^ of Justiciary Rolls, 2S-81 Edward I aud SS-S5 Edward I, edited J. Mills (1905, 1914). 8 A catalogue of the accounts in the pipe rolls from Henry III to 15 Edward III appeared in the Eeports of the Deputy Keeper of Public Becords, Ireland, xxxv-xlvii: this catalogue did not notice such entries, for which see Betham, loc. eil., and William Lynch, A view of the legal institutions . . . . established in Ireland (1830), pp. 160, 338. 9 See Historical and Municipal Documents of Ireland, ed. J. T. Gilbert (Rolls Series), p. 141. 10 Annals of Ireland, 1162-1370, in Chartulary of St. Mary's Abbey, Dublin (Rolls Series), ii, 323. "We have, however, been able to print as Appendix I, no 2, one document which has hitherto escaped notice. Other documents already known are either merely calendared or printed imperfectly; some of these are given also in Appendix I. 12 Historical and Municipal Documents of Ireland, p. 141: "Inquisitie f acta ad parliamentum de Tristeldermod, die Mercurii próxima post festum Sánete Trinitatis anno regni domini regis Honrici xlviii."

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measures, but though this statute is said to have obtained the consent of all the magnates and the whole community, parliament is not specifically mentioned.13 Both these meetings were held after Edward had been invested by his father with the dominion of Ireland, although it is not to be supposed either that Edward invented parliaments in this country or brought in the name. After his accession to the throne, references and records become fairly plentiful, and we are enabled to construct a list of recorded parliaments which, although it shows two wide gaps, between 1281 and 1289, and again between 1302 and 1307, does suggest that an endeavour was made to hold parliaments frequently and regularly, certainly from about 1276 onwards.14 As many as three parliaments may have been held in some years ; it is evident that at .other times parliaments may have been suspended for a considerable period. Much depended upon the changes in government and the state of the country. For example, Stephen, archbishop of Tuam, the justiciar, died on 3 July 1288, and the archbishop of Dublin assumed office as keeper of Ireland four days later. For more than a year he was occupied with military preparations and expeditions, and did not summon his first parliament until the Michaelmas term of 1289; other parliaments then followed in the subsequent Hilary and Easter terms.15 We have here both an explanation of part of one of the big gaps in the list and an illustration of what seems to have been the ideal of the Irish administration—regular and frequent parliaments. In composition, the parliaments of Ireland were exactly parallel to those of England : the core was the king's council. Thus, at the Trinity parliament of 1264, there are found the justiciar Richard of Rochelle, the treasurer Hugh of Thomond, bishop of Meath, the chancellor Fromund le Brun, the escheator master William de Bakepuz, and other magnates.16 Again, the meeting of Michaelmas, 1269, which has been regarded (we think rightly) as a parliament, included the justiciar Robert of Ufford and other lieges of the king's council, all the magnates, and the whole community of Ireland.17 To come to specific mentions of the council. In the Easter parliament of 1281 the citizens of Dublin bring their grievances before the justiciar and the king's council.18 Richard de Burgh, earl of Ulster, having been unlawfully imprisoned by John fitz Thomas, his liberation is enforced by the king's council in the parliament at Kilkenny u

llid., p. 502; Early Statutes of Ireland, p. 3*6. A facsimile will be found in the Eeport of the Irish Eecord Commission, vol. i, plate 1. Trom the particulars in the Eeport of the Deputy Keeper of Public Eecords, Ireland, xxvi, '63, the roll would appear to have belonged to the Michaelmas term, 53-4 Henry III. 14 See list below, p. 146 f. 15 See Appendix I, no. 4 : Calendar of Documents, Ireland, iii, 265 if. 14 Historical and Municipal Documents, p. 141. 17 Ibid., p. 502 ; Early Statutes of Ireland, p. 36, 18 Appendix I, no. 3. —

of Edward I

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in 1295.19 In the Hilary term of 1298 the proceedings are stated to be in full parliament at Dublin before the justiciar, chancellor, treasurer, and others of the council;20 in the following year, "because the council is not fully here, therefore a day is given to [the petitioner] in the next parliament."21 There is no need to multiply these instances or to insist that the practice is identical with that of England. Equally, we find attending parliament the magnates of Ireland and, from time to time, representatives of the counties and liberties and the towns. The presence of the magnates is attested not only by general references to, them,22 but also by the fines inflicted upon those who did not attend. Of those thus penalised, we have in 1281-1283 the names of the Master of the Temple and of Peter of Birmingham and Geoffrey de Prendergast,23 in 1293 the bishop of Clonfert.24 Representatives of the "commons" appear to have been present at a meeting, which may have been a parliament, in the Hilary term of 1292.25 To the famous parliament of 1297 there were summoned, besides the magnates, two knights from each of ten counties and five liberties; the sheriffs and seneschals were also to be present.26 There is no evidence that representatives of the towns were summoned to this meeting; the cities and boroughs, as well as the counties, were, however, required to send representatives to an Easter parliament in 1300.27 But already, at a parliament in the Easter term of 1299, representatives of certain towns had been present, since two from each city and borough where foreign merchants arrived had been summoned before the justiciar and council to secure their assent to regulations for preventing the influx of base coin and the withdrawal of minted money and bullion.28 At this same parliament the communities of divers counties " Annals of Ireland, p. 323. Calendar of Justiciary Rolls (23-31 Edward I), i, 123. ! ' Ibid., p. 230. 22 E.g. Appendix I, nos. 2 and 3. 23 Betham, op. cit., p. 258 ; Lynch, Legal Institutions, pp. 1'60, 338. M Cal. Close Soils (1288-1296), p. 287; Lynch, Legal Institutions, p. 49. 25 Appendix I, no. 5. On this document, see Lynch, Legal Institutions, pp. 49, 307 ; Law of Election in the Ancient Cities and Towns of Ireland, pp. 26 f. The word "parliament" nowhere occurs, however, in the original. The date appears to be determined by the documents abstracted in Cal. Documents, Ireland, iii, pp. 441, 485. There is, however, this difficulty that the meeting is said to have been held "Die lune in quindena Sancti Hillarii," while the quinzaine of Hilary in 1292 fell on Sunday. But no year in which the quinzaine of Hilary fell on Monday (e.g., 1287, 1298) appears admissible. "Early Statutes of Ireland, pp. 194 ff.; Irish Archaeological Society Miscellany (1846), pp. 15 ff. 2 ' Early Statutes, pp. 228 ff. ; Cal. Justiciary Soils, i, 303 f. M Early Statutes, p. 212 ; Cal. Justiciary Eolls, i, 237. It is possible that a meeting of town representatives was called in 1292 to induce them to 'grant a loan to the king; but the negotiations may equally have been conducted by individual bargaining; Col. Chanc. Bolls, Various, p. 239; Foedera, i, 617; Pari Writs, i, ¿86. 20

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presented their complaints regarding servants leaving their masters or demanding excessive wages; and county representatives, "knights and other good and lawful men," were summoned for consultation on the legislation necessary to remedy this state of affairs.29 We need not, however, suppose that the "commons" appeared for the first time in Irish parliaments in the last decade of the thirteenth century. It is possible that, when the record of the meeting of 1269 speaks of all the magnates and the whole community of Ireland, tota communitas may imply the presence of representatives who were not magnates,30 although it was not unknown for the magnates to claim to speak for the whole community.31 However, as early as 1244, the advice of all the discreet burgesses of Ireland was to be obtained regarding standard weights and measures, and this may imply a meeting of representatives.32 But at most meetings which bear a resemblance to later parliaments, there seems to be no reference either to knights or to town representatives;33 and it is most probable that they were only summoned when they were thought to be useful for some special purpose—which, indeed, was probably the principle long observed. Ireland after the Norman conquest presented the spectacle, not uncommon during the Middle Ages, of two communities dwelling in the same land but living under different laws. The government of Edward I appears to have been willing to unite at one stroke all the people of Ireland under one law, the law of England ; and the Irish people, or those who claimed to speak in their name, seem to have been willing to pay a price for the privilege.34 But the project broke on the prejudice or selfinterest of the Anglo-Irish;35 and although not infrequently the right to live under English law might be conceded to particular persons,30 there Early Statutes, p. 214; Cal. Justiciary Rolls, i, 237. See above, p. 130, n. 17. 81 Cal. Justiciary Eolls, ii, 77. 82 Close Eolls (1242-7), pp. 252 f. 33 In January, 1245, the justiciar was ordered to convene the magnates of the land to discuss a subsidy for the Welsh war (ibid., pp. 34'8-9). In December, 1253, the Irish bishops were informed of a meeting to be held at mid-Lent before the justiciar at Dublin; they are, with the other magnates of Ireland, to give their counsel and aid regarding the threatened invasion by Alfonso of Castile; Foedera, i, 295. A meeting which the lord Edward was to have called in 1255 to remedy the grievances of the Irish church consisted, besides the justiciar and council, of bishops, abbots, barons, justices, and magnates; Lynch, Legal Institutions, pp. 3031; Cal. Documents, Ireland, ii, 74 f. At the parliament of Castledermot in 12'64, an inquisition was made by twenty-six milites, but these seem to be magnates; Historical and Municipal Documents of Ireland pp. 141 ff. 84 Cal. Documents, Ireland, ii, 263, 265 : the latter document is printed in Foedera i, 5'40. «Foedera, i, 582; Cal. Patent Eolls (1272-81), p. 380; Cal. Documents, Ireland, ii 346; Appendix I, no. 2. "If we can trust the petition of Hugh Kent, it was at the Westminster parliament 29

30

of Edward I

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continued to be two communities in Ireland, divided mainly by race and living under different laws. On the wider results of the policy of segregation it would be improper in this place to dwell. One result is suggested by the defence put forward by Adam le Blunt, accused of assaulting Richard le Blako during a parliament at Kilkenny in 1302 ; the facts were not denied, but the accused claimed that the prosecutor was Irish, and that, therefore, he was not bound to answer him. The prosecutor had to prove by inquest that he was English before he could recover damages and secure the punishment of the aggressor.37 The lesson we would draw is not that it was disadvantageous to live under Irish law—although this we may well believe—but that to the native unanglicised Irish the English law courts in Ireland meant nothing ; they were institutions which did not touch them, which righted no wrongs of theirs. The parliaments of Ireland—the culmination of the courts of English law—remained an English institution, uninfluenced by Irish law or custom. The Anglo-Irish and even the Irish themselves might resort to the king's parliament in England to obtain favours or to get their wrongs righted; and the English king might evoke cases from his Irish courts to his parliament in England,38 and demand as well the presence of Irish officials there. In all these things, Ireland was no more exceptional than Gascony or Scotland under English domination. Again, upon Ireland as upon Scotland, statutes made in England might be imposed. And just as an appeal might lie to the court of king Edward of England from the parliament of king John of Scotland,38 so an appeal might lie from the parliament held by the justiciar in Ireland to the king's court in England.40 It does not, of course, follow that the king heard the appeal in his parliament. There was, therefore, no definite hierarchy of parliaments. But it is quite clear that the parliament in England was a superior tribunal, and not so much because it was in England as because it was held before the king himself and before the council attending the king's person. It is advisable that we give illustrations of some of these points. For of November, 1295, that "le Bey commaunda . . . qe ceste grace feust graunte a eels qil la voleynt demaunder, qar il lui fust mustre par son consayl adunk qe ceo serroit grauntment son profist" (Ancient Petition, no. 8670). But individual 'grants are not infrequently to be found before 1295, e.g. Cal. Documents, Ireland, ii, 321, 3'66, 370; iii, 336, 392; Cole, Documents, pp. 58, '69 f. For grants after 1295, see Cal. Documents, Ireland, iv, 6 f. ; Maitland, Memoranda de Parli/amento, pp. 246, 253 f. ; Cal. Patent Rolls (1307-13), pp. 183, '458; (1313-17), pp. 346, 463, 564; (1317-1321), pp. 155, 339, 342; Foedera, ii, 80, 290, 301. 81 Cal. Justiciary Bolls, i, 454 f. 38 The earliest case -we have found is one before the parliament of Oxford in 1258, see below, p. 134, n. 45. There are, as we should suppose, earlier instances of the evocation before the King and his council of a process before the Irish courts; Cal. Documents, Ireland, ii, '68, 81. " See Scot. Hist. Kev., xxv, 308. m Sistorical and Municipal Documents, p. 208; Appendix I, no. 3.

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the Hilary and Easter parliaments of 1290 we possess rolls of Irish petitions,41 and similar rolls for the Michaelmas parliament of 1293,42 and the Lenten parliament of 1305.43 It is doubtless mere mischance that we do not possess them for other parliaments of Edward I.44 These petitions are of as miscellaneous a character as those from any other part of Edward's dominions : the petitioner may be seeking a legal remedy, or demanding offices, privileges, or rewards. Those petitions which demand a legal remedy may lead to the evocation of a case from the Irish courts to the English parliament, and clearly some form of representation by one of the parties must in nearly every case be made to the king or his ministers to secure a hearing, although a petition need not actually be presented in parliament.45 Sometimes the way to the parliament in England is through another English court, as where an action before the court of common pleas at Dublin comes first before the king's bench in England;46 sometimes the justiciar himself remitted a case from his court for judgment before the king in his English parliament.47 In fact, a "Exchequer Parliament Rolls, nos. 3 and .4; Cole, Documents, pp. 55 ff.; '68ft'. Exchequer Parliament Roll, no. 8. Exchequer Parliament Roll, no. 12, m. 14 ; Maitland, Memoranda de Parliamento, pp. 232 ff. The relation of this roll to the rest of the memoranda we hope to explain in an article appearing elsewhere. 44 Of. Rot. Parí, i, 10a, 204; Cal. Documents, Ireland, iii, 525; iv, 32, 58. 43 Of. Curia Regis Roll, no. 158, m. 12 : a case before the parliament of Oxford, 16 June 1258: Mandatum f uit ex parte Edwardi filii domini Regis etc. Alano la Zuche iusticiario suo Hybernie quod sicut audiuit in loquela que fuit coram iusticiariis suis apud Dubliniam per breue domini Regis de recto inter lohannem de Verdon' petentem et Abbatem de Mellif onte tenentem . . . ex parte ipsius Abbatis est responsum quod sine domino rege inde responderé non potest, propter quod dicti iusticiarii in ipsa loquela vlterius procedere cessant, quod propter periculum exheredacionis quod eminere posset predicto lohanni quod scire faceret predicto Abbati quod sine dilacione veniret in Angliam . . . Here the demandant appears to have communicated verbally with the lord Edward, who thereupon, sent his own writ which resulted in the appearance ci the abbot of Mellifont in parliament. See also the case mentioned below (p. 137), where the appellant sought the king in Beam. 46 Abbot of Port St. Mary of Dunbrody v. Master of the Templars in Ireland : Col. Documents, Ireland, iii, 279, 305, 33'2; Cole, Documents, p. 68. "Cal. Justiciary Eolls, ii, 78. Early in Edward I's reign, the justiciar had protested against the practice of the English chancery of granting writs to prosecute appeals from Irish courts (Cal Documents, Ireland, ii, 296). The general policy, however, appears to have been to restrict the interference of English courts in Irish affairs. In 1305 the judges sitting with the rest of the council in London assented to the judgment proposed by the council with the king to the effect that for a trespass in Ireland the writ should issue from the Irish chancery and not from the English chancery (Cal Chancery Warrants, i, pp. 253 f.). Apparently, if an Irish court was unwilling or unable to deal with a case, it might give the plaintiff permission to seek a remedy in England: see the petition of John le Juvene in the Easter parliament of 1290 where he states that he had applied to the treasurer and to the justices in Ireland "e nul dreit ne ly voleint fere mes ly donerent cunge de aler en. Engleterre pur se pleindre" (Cole, Documents, p. 78). 42

43

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process in any Irish court, from the justiciar Vs downwards, might in this way come for review before the king in his parliament in England : from the court of the exchequer,49 of the escheator,GO of an Irish baron, like that of Thomas fitz Maurice at Dungarvan.51 Similarly, matters of administration might come before the king in parliament, such as the accounts of the justiciar and treasurer of Ireland.52 When Irish business thus came before the parliament in England, then certain of the king's Irish ministers would be there, either because their conduct was called in question53 or because their advice was needed.54 No definite legal principle determined whether an action in an Irish court should be evoked before the king in parliament. If we look for reasons, we shall find one in the difficulty of restraining the lawlessness of Irish magnates and the shortcomings of the king's ministers; another in the personal character of the medieval monarchy—the king is still the dispenser of personal favours. The first of these reasons will bring serious enough business to the English parliament. In the Easter parliament of 1281, for example, Hubert de Burgh appeared before the king to answer for his trespasses; no final decision was then come to, pending the execution in Ireland of a formal document by his sureties ; but this having been done, the justiciar was to certify the king in the Easter parliament of 1282.55 John fitz Thomas, the most lawless perhaps of all the Irish barons, engaged the attention of English parliaments on several occasions. In 1294 an accusation of treason, brought by him against the justiciar William de Vescy, and a countercharge of defamation, would have been determined by a judicial duel in Ceri. Documents, Ireland, iv, '64; Col. Justiciary Eolls, ii, 76; and see preceding notes. 48 Cal. Documents, Ireland, iv, 57. m Ibid., 288. "Chancery Warrants, Series I, 21/2142; Cal. Chancery Warrants, i, p. 114. 52 Col. Documents, Ireland, Hi, 42, 283. 53 This is true of the treasurer of Ireland m particular, see below, p. 136. Of. Chancery Warrants, Series I, 52/5234 (Calendar, p. 244) : complaints to the king concerning the treasurer of Ireland, "par les quelles il nous semble quii est appelable deuant nous a nostre pallement a respondre au dit GeofErei [de Morton'] sur les pleintes auantdites"; the treasurer accordingly appears at Westminster in the Lenten parliament of 1305; Historical ana Municipal Documents, p. 224; Plaeitorum Ab'brewatio, p. 255a. In the same parliament, the justiciar answers Agnes of Valence; Maitland, Memoranda, pp. 240 ff. M Foedera, i, 799; Bot. Pari, i, 127 f., 132 ff. For the presence in 1290 and 1305 of the justiciar and members of the council, see Cole, Documents, pp. 56, 58; Maitland, Memoranda, p. 248. Cf. writ to the archbishop of Dublin, requiring him to come to advise the king as soon as possible "vel saltim ad proximum parliamentum"; Pari. Writs, i, 134. The escheator was present at the Easter parliament of 1290; Cole, Documents, pp. '69 f., 81 f. 65 Cal. Documents, Ireland, ii, 377, 390; Cal. Patent Eolls (1272-81), p. '426; Cal. Close Soils (1279-88), p. 91. 48

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Ireland, had not the parties, as well as the chief ministers of Ireland, been summoned to the king's parliament at Westminster.56 Later in the same year John fitz Thomas seized and imprisoned the earl of Ulster; as we have already noted, the council in Ireland at the parliament of Kilkenny enforced the release of the earl; but this did not end the matter, for fitz Thomas, after receiving a pardon from the justiciar, was summoned to the parliament at Westminster to answer the king for his misdoings.57 Again, in 1304 directions were given to summon him to appear at the next parliament, if this were legally permissible, to answer for the wrongs committed against Agnes of Valence58—an old quarrel, dating back to 129559—and in the Lenten parliament of 1305 the case actually comes up, but it is on the complaint of Agnes that John Wogan the justiciar (who is present in parliament) has failed to do justice despite writs repeatedly addressed to him.60 Three further instances, taken from the year 1290, will provide sufficient examples of the practice of requiring Irish ministers to answer for their conduct before the king in his parliament. In the Hilary parliament, Nicholas of Clare had to answer a number of charges brought against him by the king, by the executors of the archbishop of Tuam, by William of Beltesdale, a disappointed seeker after a benefice, and by the bishop of Emly.61 In the Easter parliament, he had to face another batch of charges presented by Adam Gaynard, a minister of the queen in Ireland, and by Adam's son William, by the bishop of Waterford, and by one John le Juvene.62 In the same parliament, the deputy treasurer, William of Clare, also had to appear; in the preceding January (when the treasurer was in England) he had put under arrest merchants of the society of the Ricardi at Dublin, who were engaged in collecting the new custom. This he did in an endeavour to extract money to meet the king's demands, but the

» Bot. Pari., i, 127 f., 132 ff. 67 Chartularies of St. Mary's Abbey, Dublin (Ännals of Ireland), ii, 323; Bot. Pari., i, 135 ff. 58 Chancery Warrants, Series I, 44/4396 (Calendar, p. 212) : "a respondre a nous e a la dite Agneis a nostre prochein parlement, si ley le sueffre. ' ' 59 Bot. Pari, i, 130 f. 60 Wogan made no defence and was required to do speedy justice and to report what he had done at the next parliament. Agnes is given a writ accordingly from the English chancery (Maitland, Memoranda, pp. 240 ff.). Agnes appears, however, to have neglected to go to the Irish chancery for a writ, and John fitz Thomas seizes upon the technicality; the point is considered by the council in England, and Agnes is non-suited on the ground that a common trespass in Ireland should not be pleaded in Ireland by writ of the chancery of England (Chancery Warrants, Series I, 55/5453; Calendar, pp. 253 f.). The important conclusion follows that a suitor cannot obtain remedy in parliament if he has failed to take the proper steps in inferior courts. 61 Cole, Documents, pp. 58 ff. 92 Ibid., pp. 77 ff.

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Ricardi enjoyed the king's protection, and they would not brook arbitrary exactions and violence.03 The personal link between the king and his subjects is illustrated by one case before the Hilary parliament of 1290, which finds its way there from Ireland because the appellant had taken the record and process to the king when he was in Beam, and had been adjourned to this parliament.01 Again, the citizens of Waterford had been seeking the king, and in March of this year their representative would seem to have found him at Down Ampney; there master William de la Marche (the controller of the wardrobe) adjourned them on the king's behalf to the Easter parliament.65 A petitioner in the Lenten parliament of 1305 reminds the king of a promise made by word of mouth in Scotland;00 others who seek favours, the king declares he does not know,07 and there are many petitioners in the parliament who, for their services to the king in his wars, seek office or reward in Ireland. The presence of such a number of humble petitioners was, however, probably unusual,08 for petitioning might be costly unless one were on the spot. Neither the expense of a journey nor of an attorney might be possible to many.09 The abbot of St. Thomas, Dublin, for example, represented that he was unable to come frequently to the court of England to seek remedies for oppression.70 Moreover, it " Ibid., pp. 117 ff.; Cal. Documents, Ireland, iii, 374 ff. " Cole, Documents, p. 57. K Ibid., pp. 72 f. Edward was at Down Ampney from 9 to lo March; Gougli, Itinerary of Edward I, ii, G7. " Maitland, Memoranda de Parliament, p. 237 : ' ' desicome le Bey meme lui promisit de sa bouche. " " Ibid., p. '250. 88 The roll for the Hilary parliament 1290 preserves eighteen petitions, and this number includes the so-cailed petition of Walter of Bodenham, who sues for the king, and those of the other plaintiffs against Nicholas of Clare ; Cole, Documents, pp. 55 ff. The roll for the Easter parliament 1290 preserves a much larger number of petitions, thirty-nine by our reckoning ; ibid., pp. '68 ff. The roll for the Lenten parliament of 1305 preserves forty-four petitions, not all in point of fact (e.g. no. 410) actually concerning Ireland; Maitland, Memoranda, pp. 232ff. In each parliament a large proportion of the petitioners came from the ranks of the bishops, monastic clergy, magnates, and ministers. Petitioners of humble status appear to be few and far between, but are certainly more numerous in 1305. 89 As to attendance in person or by attorney, see the reply to Adam de Foleburn, who wished to expound the griefs of his uncle and brother: "veniant ad proximum parliamentum post Pascha per se vel per attornatos suos" (Cole, Documents, p. 56). In the same parliament the bishop of Emly was represented by an attorney; ibid., pp. '68 ff. ™Suis domino lohauni de Kirkeby et Willelmo de Odi ham salutoni. Cum difficile sit abbati sancti Thome Dublinie frequenter ad curiam Anglie pro remediis requirendis de oppressionibus suis recurrere, vobis mandamus quod auditis et intellects peticionibus vobis per canónicos domus prediete porrigendis, sibi fieri faciatis remedium quale de uu-e et gracia curie videritis faciendum. Datum apud Acton' Burnell' [x]iij Kalendas

Septembris (Ancient Correspondence, ix, no. 116; see Cal. Documents, Ireland, iii 525) It was probably written in 1283; cf. Maxwell Lyte, The Great Seal p 3'6

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appears to have been necessary, at least on occasion, for suitors from Ireland to obtain letters of protection, and, even if this were not much more than a formality, the expense and trouble involved would be likely to hinder many.71 Poverty, then, might keep many away from parliaments in England; others might be satisfied with the justice of an Irish parliament. And, even if it might be argued that the king and the English courts attempted to deal too much in detail with Irish affairs and sometimes concerned themselves with matters best left to the Irish administration and the Irish courts, yet it is clear that there was ground for mistrust; nor, when we have made allowance for the personal responsibility of the medieval king, do we think that Edward I and his council were consciously interfering in local administration. If there was a failure on the part of the king's representatives to do justice, the king could not refuse to hear an appeal ; but the rolls of petitions show clearly enough that the king had no mind to draw to his parliament matters properly falling to the justiciar and ministers in Ireland.72 Moreover, the king was not always able to find time for the affairs of Ireland; and if something more than the mere routine of justice was needed, if the king's consideration were required to irksome questions of administration to which his council in Ireland felt unequal, then, until the king was less occupied, the justiciar might be left to get on with the help of such wisdom as his Irish counsellors might supply.73 And, indeed, although some of Henry Ill's legislation and Edward I's great statutes of Westminster, Gloucester and Carlisle were made to apply to Ireland,74 there was need for local legislation to deal T1 See letter from the prince of Wales, 5 September, 1305 : Supplicatimi est domino Willelmo de Hamelton' cancellarlo domini Eegis quod habere faciat WiUelmo de Caunton' vicecomiti de Cork litteras domini Regis de proteccione in forma qua ccwaceditur aliis hominibus de Hibernia Venturis ad proximum parliamentum (E. 163/5/2, m. 13). 72 This is particularly evident in. the replies to the petitions presented in the Easter parliament of 1290 (Cole, Documents, pp. '88 if.) ; but it is also shown by the replies in the Lenten parliament of 1305 (Maitland, Memoranda, pp. 232 ff.). " In the Hilary parliament of 1290 the archbishop of Dublin, then justiciar, begs the king to take counsel concerning the affairs of Ireland. The king agrees that he should do so as soon as possible, but he is so occupied with the arduous business of his kingdom arising from his long absence that he cannot spare the time as he would wish, but as soon as he can find time he will attend to the business, which he has much at heart (Cole, Documents, p. 5'6). 74 Close Rolls (1234-1237), pp. 353 ff. (Constitutions of Merton); Early Statutes of Ireland, pp. 31 f. (limitation of writs, 1237), 46 (Westminster and Gloucester), 240 (Carlisle). As to the application of English statutes to Ireland, see a petition by the citizens of Dublin early in Edward I's reign : the abbot of St. Thomas, Dublin, having failed in an action against 'the citizens, was granted a writ of attaint, and while the plea was pending, the citizens appealed to the king urging "quod f uit contra legem communem et extra novum statutum domini regis de attincta capienda, et, licet infra statutum contentimi fuisset, illa statuta in Hibernia nondum sunt publicata ' ' (Ancient

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with local administrative questions, with the preservation of the peace, with Irish trade, monetary and labour problems.75 Lastly, the Irish parliament was sometimes a convenient assembly in which to discuss taxation. There was, therefore, a not inconsiderable field for every side of parliamentary activity, despite the large amount of business withdrawn to the king's parliaments in England. As we have already indicated, the procedure in the parliaments of Ireland is the counterpart of the procedure in the parliaments of England.76 We find the saine system« by which final decisions in judicial and administrative matters are held over until the next parliament;77 or the custody of property is permitted until then,78 or the value of a marriage is to be settled in the exchequer at Dublin in the next parliament there.79 At the parliament, petitions are presented and pleas are heard ;80 inquisitions are taken;81 fealty is rendered.82 Of pleas in parliament we wish to mention one in particular, because it illustrates felicitously the position held by parliament in the judicial system. The citizens of Dublin and Theobald Butler were at variance regarding the nature of his franchise; at the parliament at Dublin in the Easter term of 1281 he seems to have persuaded the council to uphold him, and the citizens, when they sought a remedy in parliament, were told to take a chancery writ, and sue in the ordinary courts. This decision was apparently taken by the magnates in opposition to the justiciar. The citizens protested that when a deed had been done in parliament the remedy should have been given in parliament.83 This is high doctrine, and we know no English case to put beside it before the archbishop of York's protest in 1327, that a decision taken in parliament could not be reversed elsewhere than in parliament,84 and the bishop of Winchester's protest two years later, that, for an offence in parliament, it was not incumbent upon him to answer in any lower court.85 In the Irish case the king on appeal gave relief. Petition, no. 2183, printed (incorrectly) by Gilbert, Historical and Municipal Documents, p. 213). The reference is to the Statute of Westminster the First (of, Begistrum Brevium, ff. 121b, 12'2); this statute was not proclaimed in Ireland until 1285 (Early Statutes, p. 46). Ancient Petition, no. 2183, is a continuation of no. 218'2, which was clearly drawn up after, but not long after, the Dublin parliament of Easter, 1281; see Appendix I, no. 3. " Early Statutes, pp. 36, 194fif.,213ffi.,236. "See Bulletin of the Institute of Historical Beseareh, v, 129if. "Cal. Justiciary Bolls, i, 74, 441. n ttid., 73. "Ibid., 438. *>Il>id., i, 303 ff., 3'82ff., 450 ff.; ii, 350 ff.

Historical and, Municipal Documents, p. 141. »Cal. Justiciary Soils, ii, 353, 357; but cf. Historical ana Municipal Documents, p. 534. s * Appendix I, no. 3. "Foederu, ii, 711; Cal. Close Soils (1327-1330), pp. 150 f, 65 Trans. Sayal Hist. Soe. (IV Series), v, 59. 81

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Of legislation we have perhaps already said enough for our present purpose, and it remains only to refer briefly to the relation of parliament to taxation. "We know that the lords of liberties in Ireland granted to Edward I the right to take custom of wool, woolfells, and leather exported from Ireland, and that this grant was made in the Westminster parliament of Easter, 1275, at the instance, it was said, of the merchants.86 Of direct taxation in Ireland, we have at least two instances—the fifteenth of 1292 and the subsidy for the Scottish war of 1300. In the first case, a meeting was convened after Hilary at Dublin, to which were summoned the barons and magnates of Ireland, as well as the fidelis communitas, which may perhaps be rashly translated as "faithful commons." The meeting may have been a parliament, although, in the absence of corroborative evidence, we ought not to affirm this : it is not so termed in the only document we know giving an account of the proceedings. The greater part of the maiores conceded a fifteenth after agreement as to the basis of assessment. Certain of the commons (de vulgo) and many of the magnates, however, stood out, and said, in effect, that they had nothing but their debts due to them; they were willing to pay a fifteenth if it were taken from their debtors; and this offer seems to have been accepted.87 We know from other sources that something in the nature of individual bargains was struck with the payers of the fifteenth.88 In the Easter parliament of 1300 at Dublin, the question of a subsidy was debated, but no agreement was reached, and, instead, the justiciar, who had already been the round of the towns before parliament met,89 was advised to bargain again with the communities of the land; the magnates for their part promised to pay their share. In conclusion, we have a moral to suggest. It has been the misfortune of parliamentary studies in general that historians have approached them almost exclusively from a national standpoint. And although the need for comparative methods has from time to time been pointed out, notably by Ch.' V. Langlois,90 very little has been done in this direction; and, even when investigators have strayed beyond the boundaries of their chosen country, they have for the most part been content to rely upon secondary authorities, with results that could not be other than disappointing. We believe, however, to take the example before us, that Irish parliamentary procedure, and the procedure governing Irish business in the English courts, enable us to understand much more clearly and more certainly Edward I's actions in Scotland and his relations with Scottish suitors, ~MParl. Writs, i, 2; Cal. Documents, Ireland, iii, p. 195; Bulletin of the Institute of Historical Eesearch, v, 136. " Appendix I, no. 5. ™Cal. Documents, Ireland, iii, 441, 485. K Early Statutes of Ireland, pp. 288 if. ; Cal. Justiciary Soils, i, 303 f. '"Bévue Historique, xlii, 90 ff.; Eng. Hist. Rev., ix, 75'ö f.

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for we cannot suppose that Edward was unmindful of Irish precedents when, he sought to remodel the legal institutions of Scotland and to readjust the ties between England and Scotland.91 And, since English usages and practices seem to have been preserved practically unimpaired in the courts of Ireland, at least in the period with which we are now concerned, Irish parliamentary records may throw some light upon English parliamentary institutions. The facts of Irish taxation may likewise have a lesson for those who still believe that at this time parliamentary authority was necessary for taxes upon personal property."2

APPENDIX I. DOCUMENTS ILLUSTRATING IRISH PARLIAMENTARY PROCEDURE. (1) Expenses of Ministers attending Irish Parliaments, 1276-1277. (Account of Stephen, bishop of Waterford, Treasurer in Ireland, Michaelmas, 1276-1277; E. 101/230/4, mm. 5, 6.93) Et c.s. eidem [Johanni de Kcnleg']94 Pr° expensas suis quas fecit in eundo et redeundo et morando aptid Kyldare et Kylkenniam in parliamentis9'"' habitis ibidem. Et. c. li. Episcopo Waterfordensi pro expensis et misis quas fecit in Hibernia per diuersa loca ut ad parliamenta, minería visitanda, et alus minutis expensis per triennium extra officium Thesaurarii. (Memoranda of disorders in the Irish Exchequer ; E. 101/234/19, m. 3 in cédula).™ Memorandum quod Stephanus Waterfordensis Episcopus recepit c. li. ad expensas suas eundo per diuersa loca ad parliamenta in anno regni régis vj37 prêter officium Thcsntirarii. See the paper by the present writers, Scottish Hist. Review, xxv, 300 if. Cf. Professor J. F. Willard's dictum, "The taxes upon personal property were throughout the period 1290-1350 consistently granted by Parliament"; Bulletin of the Institut1; of Historical Research, iii, 27. See also Curtis, History of Mediaeval Ireland, p. 191. 93 Calendared by Sweetraan, ii, 259, 261. 84 Chancellor and Chamberlain of the Irish Exchequer; see Col. Documents, Ireland, ii, 248. 03 It should be noted that parliament' has been extended in the plural, but there is 110 reason to doubt that this is intended. '"' Calendared by Sweetman, iii, 11. 91 This must be an error for the fifth year and the note must refer to the entry given ¡ihovo; there is no charge of the kind in the account for 1277-1278 included in B. 101/230/4. 91 02

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(2) Memoranda of decisions taken in an Irish parliament, 1280.98 (This membrane is mutilated, the right-hand corner being entirely torn away. In consequence, the first five chapters cannot be restored, even eonjecturally. The first relates to some order, issued to the sheriffs, seemingly "par bone sente des prudes hommes"; the second to a proclamation to be made by sheriffs and bailiffs ; the third to a provision that landholders shall hold and do "solum ceo qe est puruu"; the fourth to empty and devastated boroughs which are to be occupied "entre cy e la seynt michel" ; the fifth to "les Estatuz de Engletere atenir en ceste tere." The rest of the document is here reproduced : Chañe., Parí, and Council Proceedings, 1/5.) Des [mesures]

En dreit des [me] sures [e d] es peys qe eles fuissent [d]ones par tute la tere, Puruu est e asentu par les hauz homes de la tere qe les mesmes soent fêtes de par le Beys isse qe renables soent. Ceus voluntiers de par le Beys le receuerunt e tenderunt. Des Irreys Endreit des Irreys vdyfs qe mauueys genz sunt e vdyfs. suuent se mespernent en cuntre la pes, Asentu est par les Biches hommes qe il seent lusticez par lur Lignages qe sunt a la pes si les Lignages reduablement ne puissent mustrer qe il ne les pussent chastier ne lusticer Issint qe les kynkonges" curgent si cum il soleyent fere. De ceo qe Endreit de co qe les Irreys demaundent Commune Irreys demand- Ley, Bespundu fu par les Biches hommes qe furent al ent Commune parlement e par les seneschaus e les Bayllifs de la tere qe Ley. tuz les greynnurs seingnurs de hyrlande furent hors de la tere e de denz âge engarde par quey il ne poyent nene voleynt a ceo qe il disseint sanz eus respundre ne assentyr qe il vssent Commune Ley, E ben lur semble qe il sunt trop dur démené en aucune choses e ben serreit démettre aucune amendement quant lem verreit liu e tens. 98 The date of this document is indicated by the eighth chapter (the third paragraph here printed). This chapter is clearly related to the writ of 10 June, 1280, addressed to the archbishops, bishops, abbots, priors, earls, barons, knights, and all the other English of Ireland (Foedera, i, 582). This writ requires them to meet before the Nativity of Our Lady in order to discuss the granting of English laws to the Irish; it continues "et hoc propter absenciam quorumdam de paribus vestris quos ibidem interesse non contigerit vel illorum qui sunt infra etatem et in custodia nullatenus omittatis. " This instruction appears to be clearly a reference to the decision embodied in the eighth chapter of our document. The parliament must therefore have been held some time, but probably not a long time, before June, 1280. It is not unlikely that the parliament was held after Easter (21 April). 99 Clearly from Tdncogus, cin comfocuis, i.e. ' ' crime of relative. ' ' The liability passed from the actual offender to members of his kindred in order; see Ancient Laws of Irelmd (Glossary), vi, 137, 164. A direct translation of this clause is difficult; the meaning is—"provided that as heretofore the kindred remain liable for offences committed by their kinsmen."

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XV 143

De Bref qe est apele replegiare

Puruu est asentu par les Riches homes de la tere qe si celi qe name v destreint pur rente v pur dette volt trouer pièges que il ad meur dreit a retenir celé destresce qe nul autre a auer la deliuerance e de ceo voil suffrir bone enqueste au proehein Cunte par bone seurete fere, Dunkes ne face li vcscontes nule deliuerance, mes prenge lenqueste al proehein cunte sanz essoine e Dunkes face sulunt ceo ke il verra ke resun soit, endreit de celé deliuerance. Del Eschap de Assentu est ke la v un hom ad sun larrun Irreis od Irreis hors ses chattels hors de la curt le Roi e eel Irreis esehape hors de la prisun. de la prisun, celui a ki il est liuere, Purueu est e assentu ke celui a ki cel Irreis est liuere ne set de cel eschap aehesime, mes le Irreis de cel hure kil face issi leschap seit tenu felun, issi ke nul nel pusse tenir ne auer sanz le gré le Rey. Del Eschap de Puruu est e asentu ke li Roy eit cel eschap par la Irreis hors Resun ke nul ne put fere garde si le larum se voille tenir de muster. a muster, fors li Rey, e dautre part nul nel put fere fors lurer la tere le Rey fors le Coruner. De receturs. Pimra est pur ceo ke lem ne put mie si tost lustiser ne prendre les feluns ne les laruns eome mester fust ke les recetturs seient responanz a la uolunte la lustice e eels ke recettent apertement les feluns e les malueis ke sunt homicides e ardtirs e facent ke eus seient tels, cels seient pris e emprisonez v par bone pleuine lessez par de lur donant e les autres recetturs des mêmes larcines e larums seient repleuiz sanz rens doner. Gestes auandites choses seient mandez as veseuntes e as seneschaxis par mi la tere par bref le Rey a fere e a garder en la furme auantdit. (3) Proceedings in the parliament of Dublin, Easter 1281. (Extract from petition from mayor and citizens of Dublin; Ancient Petition, no. 2182.100) . .. Mes ja le meins ben e saunz nule desturbaunee les avandiz cytyzeyns ceo aveyent tenut en lavandite terre, e leyriz101 se tindrent ben e en pes jekes au parlement ke fut a Dyveline le an nostre Seyngnur le Rey neuvyme après la pak au tens Sire Robert de Ufford, dedenz queu parlement levandit Sire Tybaud les engeta derichef de lavandite tere par colur de sun purchace avandit. E nus le ussuns ben tenu hors, mes pur les haus homes de la tere qui furent venuz au parlement nostre Seyngnur le Rey nus dotâmes a desturber levandit parlement, e pur reverence nostre 100 The whole petition is printed in Gilbert '« Historical and, Mtimcipal Documents of Ireland (Kolls Series), p. 208, but with many omissions and errors. The foregoing passage, pp. 207-8, is so rendered as to be hardly intelligible. 101 After 1, an a eeems to have been deleted; translate "the affair."

XV 144


Seyngnur le Rey suffrymis. E tant tost dedenz le parlement le monstramcs a la justice e a conseil le Rey. E la justice nus voleyt de ceo remédie aver let, mes les uns du conseil suffrir ne le voleyent mes nus distrint ke nus preysoms bref e suysum solom'102 lay de tere. B nus deymis pur lestât ¡e Rey e pur nostre estât ke dur nus serreit a pieder a sy haut home, mes nus qui sums de démenés le Rey sanz ky perdre ne pohoms, e le fet fet dedenz le parlement, ke les amendis dedenz le parlement dusent aver este fetes. E sachez ke il ne bosoyngne mye a nostre Seyngnur le Rey ne a nus a pieder par bref de la chauncelerie pur poer qil ad de tote pars la vyle, ke par ly ke par ces alyez e par akuns du conseil le Rey, mes pur deu ke le rei q nus pussums estre remis en nostre estât e pus sue si il veut en forme de dreyt. (4) The Keeper of Ireland holds three parliaments, 1289-1290. (Extract from Account of John, archbishop of Dublin, when Keeper of Ireland; E. 101/231/9.103) Et sciendum quod per dictam expedieionem sic factam venerunt tarn Hibernici de Offalaia qur,m de Leys ad pacem domini Regis et nuncquam postea fuerunt de guerra. Et tune cito post fecit dictus Gustos proclamare quoddam parleamentum apud Dubîimam et ibi ordinauit per omnes magnates Hibernie de statu terre illius et fuit tenendo placita regia et exercendo officium suum in comítatu Dublinie et in libertatibus Lagennie vsque ad Natale Domini próximo sequens. Et postmodum tenuit aliud parliamentum citra festum sancti Hillarü próximo sequens apud Dubliniam per omnes magnates terre illius. Et sic fuit intendans negociis regiis continué in partibus illis vsque ad Pascha. Et postea tenuit aliud parleamentum apud Kilkenniam in septimana Pasche anno regni Regis Edwardi xviij. Et sic fuit occupatus de die in dicm seruicio domini Régis vsque ad diem sabbati proximum post festum apostølorum Philippi et lacobi quando audiuerat noua quod Hibernici fecerant transgression.es contra pacem domini Régis apud Athelon' et quod pous de Athelon' fuit in comiendo; et tune preparauit se dictus Gustos et adiuit partes illas. (5) Assembly at Dublin to consider the king's demands for a fifteenth, 1292.104 (Letter from unnamed messenger from England, then in Ireland, apparently addressed to the chancellor, Robert Burnell, bishop of Bath and Wells. So little of the latter part of the document is legible that it is of little uso attempting to restore it. The purport is : whether it would not be better to postpone the collection of the fifteenth until the following year; the writer gives this as his own personal opinion. At any rate, the times of payment should be fixed as wide apart as possible so as to avoid making worse the great poverty of the Irish. Master Henry de Bagele, 102 The mark of contraction seema to be a mistake of the scribe; perhaps he meant it to be placed over suysum and not solum. 101 Calendared by Sweetman, iii, 273. ""As to the date, see above, p. 131, n. 25.

of Edward I

XV 145

the bearer of the letter, will supply all information about the clerical tenth. The writer intercedes on behalf* of two Irishmen who have served him well since his coming to the country; Ancient Correspondence, xxxi, no. 166.) Reucrendo in Christo patri suo et amantissimo domino sua creatura salutem et se cum quanto potent obsequio et honore in continua seruitute. Die lune in quindena sancti Hillarii ad quern Barones et magnates Hibernie necnon fidel is communitas eiusdem, ipsis dumtaxat qui sunt de libertatibus certis ex causis exceptis, apud Dubliniam euocati extiterant, ipsorum maiorum animis ad optemperandum in omnibus voluntati domini nostri regis prius induetis, eisdem Baronibus et magnatibus necne ceteris de communitate Hibernie tune ibidem presentibus, nuncium exposui de quintadecima michi iniunctum; quo expósito, omnes Hibernici fere maiores ipsam quintamdecimam concesserunt in forma subscripta, videlicet quod a prestacione et taxacione eiusdem deducantur eorum arma, equitatura generis cuiuscumque, utensilia, necnon eorum thesaurus et garderobe. Ceteri vero de vulgo et plures magnates, post immensas altercaciones habitas inter ipsos, asseruerunt se guerris cotidianis grauari et ex eo quamplurirrvum ere alieno. Prop ter quod nisi et ipsorum debita que debent similiter deducantur vel in tantum exonerentur versus suos creditores quantum soluent de debitis illis quintedecime nomine, ipsam nullo modo prestabunt. Gratanter eciam et vnanimiter concedentes quod quintamdeeimam de debitis que eis debentur persoluent. Quo circa paternitati vestre placeat reuerende istius concessionis formara exponere domino nostro régi [vt] sue excellencie michi libeat demandare quid de premissis duxerit ordinandum . . . .


XV 146

APPENDIX II. TABLE OF IRISH PARLIAMENTS, 1264-1307. (Where there is a doubt whether a meeting is to be recognised as a parliament, the term and place have been enclosed within square brackets. The following abbreviations should be noted :—C.D.I. = Calendar of Documents relating to Ireland; C.J.R. = Calendar of Justiciary Rolls, vol. i (23-31 Edward I), vol. ii (33-35 Edward I).) Place.

Year.

Term.

1264

Trinity

1269

Michaelmas108

1276

Between Michaelmas

Kild are

1277, 1279 1280 1281 1282 128S 1284 1285 1286 1287 1288 1289

Michaelmas 22 September106 ? Easter101 Easter

Kilkenny Dublin Dublin

Michaelmas108

Dublin

1290 1291

Hilary Easter ? Easter109

Dublin Kilkenny Dublin

1292

[Hilary]110

[Dublin]

Castledermot

and

105

Authority. Historical and Municipal Documents of Ireland, 141. Lynch, Legal Institutions, 48. Historical and Municipal Documents, 502. Irish Record Commission Report, vol. i, plate i (facsimile). Appendix I, no. 1. C.D.I., ii, 259 ff. Lynch, Leyal Institutions, 46. Appendix I, no. 2. Appendix I, no. 3.

Appendix I, no. 4. (C.D.I., in, 273.) Appendix I, no. 4. Appendix I, no. 4. E. 101/232/11. (U.D.I, iv, 55.) Appendix I, no. 5.

See above, p. 130, n. 13. MS'William le Gras and others attached to be before the justiciar at the next parliament on the morrow of St. Matthew. 107 Soo p. 142, n. 98. 108 No parliament held since the death of the late justiciar, 3 July, 1288; see p. 130. 109 This, the proximum parliamentum after the Annunciation (25 March), was held within six weeks of the feast and apparently towards the end of this period. Easter fell on 22 April. 110 The evidence is insufficient to determine decisively whether this meeting was a parliament; see above, p. 131.

of Edward I Year, 1293 1294 1295 1296 1297 1298

1299

1300

1801 1302

1803 1304 1805 1806 1307

Term.

Lent111 Epiphany ? Easter113 Hilary Eastev Hilary113 Easter

Place.

XV 147 Authority.

Annals of Ireland, 823. C.J.R., i, 73, 181. Early Statutes of Ireland, 194. C.J.R., i, 128. C.J.R., i, 224, C.J.fí., i, 22Ó, 244. Karly Statutes of Ireland, 212. (C.J.B., i, 287.) C.J.R., i, 303. .Karly Statutes of It-eland, 229 (in part).

Kilkenny Kilkenny Dublin Dublin Dublin Dublin

Easter

Dublin

Easter [Michaelmas]"1 3 December116

Dublin [Dublin] Kilkenny

C.J.fí., i, 882. C.J.B., i, 428. C.J.R., i, 450 ; 458.

Easter

Dublin

C.J.R., ii, 350.

111

The date of this parliament appears to be determined by the justiciar's writ dated at Kilkenny, 10 March, 1295, pardoning John fitz Thomas (Sot. Pari., ï, 135). 1IS The date is not certain, but the parliament met early in 1297; see note in Early Statutes of Ireland, p. 194, and references there cited. 111 The second entry here cited, referring to an action adjourned from the Hilary term, shows that the original hearing was "in, full parliament," "*A parliament at this time and place seems to be implied by the entry cited. 1I( Parliament in session on Monday before the feast of St. Nicholas.

NOTES Page 128, 1.1

For further information see Richardson and Sayles, Parliament in Medieval Ireland (Medieval Irish History Series, no. 1: 1964) and The Irish Parliament in the Middle Ages (2nd. éd., 1964). 133, n.39 Above, XIII. 308. 141, n.91 Above, XIII. 300ff. 142, 1.1 and in Appendix II: for 1280 read 1278. For a more complete transcript of this document and further consideration of this date see The Irish Parliament in the Middle Ages, p. 290f.

XVI THE EARLY RECORDS OF THE ENGLISH PARLIAMENTS The English parliaments of Edward II As material for our discussion of the parliaments of Edward II we have documents of exactly the same kinds as those for the parliaments of Edward I, and they disclose complete continuity of function. Parliament is still, above all other times and places, the time and place for petitioning for favours or the remedying of wrongs.1 Parliament is still the appointed term for much legal and administrative business—the term to which lands are to be replevied2 or until which a wardship may be retained,3 the term upon which payments of various kinds are to be made or until which they are respited,4 the term until which taxation may be suspended,6 the term until which those who give sureties are mainprised.6 Inquisitions and returns of many kinds are submitted to the king in parliament.7 In parliament homage is rendered.8 In most of these cases the business is brought into parliament because some point arises for discussion and either the royal officers or the parties want that ample deliberation which parliament affords. In other cases the king's interest or the interest of some 1

Rolls of petitions have survived for the parliaments of August 1312 (Exchequer Parí. Roll, no. 17 : the roll has had to be dated from internal evidence), Hilary 1315, Hilary 1316, Michaelmas 1318, Easter 1319, Michaelmas 1320 (Rot. Parí. i. 289 ff., 336 ff., 371 ff.—from Vetus Codex ; Exchequer Parí. Roll, no. 23 ; Cole, Documents illustrative of English History, pp. 13 ff., 50 ff.). Bundles of petitions for other parliaments apparently survived until comparatively recent times (ef. Rot. Pari. i. 273, 387, 416, 431); and there is much other evidence for other parliaments. See also below, p. 76, n. 2. 2 E.g. Cal. Close Rolls (1307-13), p. 157 ; (1313-18), pp. 9, 21 ; (1318-23), pp. 254, 354; ) 131-3, 156, 175,214,386. Cal. Fine Rolls (iôp. 3 Ibid. 385. 4 L.T.R. Mem. Roll, 2 Edw. II (E. 368/79), mm. 2d, 90 ; Parí. Writs, II. ii. App. 97 ff. ; Cal. Close Rolls (1313-18), pp. 233, 259 ; Cal. Fine Rolls (1319-27), p. 113. 6 Parí. Writs, II. ii. App. 84 f. ; Cal. Patent Rolls (i 307-13), p. 5 51 ; Cal. Fine Rolls (1307-19), p. 223 ; Cal. Close Rolls (1318-23), p. 4 ; Madox, Baronía Anglica, p. 117 n. 6 Cal. Close Rolls (1313-18), pp. 182, 362; (1318-23), p. 170; (1323-27), pp. 51, 622; Cal. Fine Rolls (i319-27), p. 114; cf. Cal. Patent Rolls (1313-21), p. 32. 7 Parí. Writs, II. ii. App. 24 ; Cal. Patent Rolls (1307-13), p. 605, (1313-17), p. 242 ; Cal. Close Rolls (1318-23), pp. 184,436 ; Cal. Chancery Warrants (1244-1326), pp. 371, 556 ; Register of John de Drokensford (Somerset Record Soc., 1887), p. 198. 8 Cal. Fine Rolls (1307-19), pp. 186, 218 ; (1319-27), p. 113 ; Cal. Close Rolls (1318-23), p. 257 ; Cal. Chancery Warrants (1244-1326), p. 285. Although the fact is not specifically stated, it would appear that the earl of Lancaster rendered homage in parliament on 26 August 1311; Parí. Writs, II. ii. App. 42.

XVI 72


royal personage1 is nearly concerned. In other cases still, as where homage is rendered, we recognise ancient ceremonial custom : parliament is still a specially solemn meeting of a feudal king's court. We select certain cases which illustrate the nature of the business coming before parliament, and which show how precedent had been building up forms of procedure and how those who had to do with parliament under Edward II found guidance in earlier practice. Very early in the new reign a monk of Bardney was pleading in the exchequer that the issue should be discussed in parliament. The matter in dispute was the alleged dissipation of the abbey's goods by brother Robert of Wainfleet, who claimed to be abbot ; no important principle was at stake, but the abbey was of royal foundation and, in consequence of the complaints against the abbot, it was in the hands of the escheator. After the court has heard the arguments, it agrees ' quod discussio inde fiat ad proximum parliamentum ' ; and in the meantime the king will keep the abbey in his hands.2 It is no new thing for the exchequer court to remit to parliament cases in which the king was concerned ; indeed, the same decision in almost identical words is to be found in 1300—' quod discussio super negocio predicto habet fieri in parliamento Regis '—when the steward of the bishop of Ely claims the liberties of the see.3 Again, when bishop Stapeldon is urging that the revocation of the exile of the Despensers should be brought formally before parliament, he makes pointed reference to the advice of those learned in the laws and customs of England. His main contention is, however, that when an act is performed in parliament, whatever irregularities may have surrounded it, the appropriate tribunal to reconsider or reverse the act is parliament.4 This also is no new doctrine, for we have found something very like it propounded in a Dublin parliament in 12 81.5 And then the earl of Lancaster can advance as his excuse for not coming to counsel the king in 1317 that the matters with which it is proposed to deal are matters which should be discussed in parliament when the peers of the land are present, and to this, he says, both he and the king 1 E.g. the tallage by the queen dowager of demesne lands held in dower (Madox, History of the Exchequer, ¡.361; Cal, Patent Rolls, 1313-17^.389); dispute whether the advowson of St. Katherine's by the Tower belonged to the queen dowager or the queen regnant (L.T.R. Mem. Roll, 12 Edw. II (E. 368/89), m. 85). 2 L.T.R. Mem. Roll, i Edw. II (E. 368/78), m. 42d. 3 L.T.R. Mem. Roll, 28 Edw. I (E. 368/71), m. 4; : cited by Petyt, yus Parliamentarium, p. 16. 4 Register of Walter de Stapeldon (edited F. C. Hingeston-Randolph, 1892), pp. 442 ff. 6 Ancient Petitions, no. 218 2 : ' e le fet fet dedenz le parlement, ke les amendis dedenz le parlement dusetit auer este fetes.' This petition has been printed at length, but very incorrectly, in Gilbert's Historical and Municipal Documents of Ireland (Rolls Series) ; the passage cited will be found at p. 208.

of Edward II

XVI 73

1

are sworn. Here also we seem to have something more than a reference to the Ordinances, an appeal to precedents of an earlier time.2 To one further case we refer, both because it illustrates the practice as described by Fleta under Edward I, of referring judicial doubts for determination in parliament, and because it shows that parliament had as yet by no means an exclusive competence to determine such doubts. On the death of Gilbert of Clare, earl of Gloucester, his widow believed herself to be pregnant ; when the normal period of gestation had passed, Hugh Despenser the younger, in the right of one of the co-heiresses, claimed the purparty of the inheritance. The widow still asserted that she was pregnant and the matter came several times before the king's council for decision, but they, finding the question so novel and difficult, declined to give an opinion without the assent of the magnates and advised that it should come before parliament or a convocatio of the magnates of the realm, where the business might be fully determined. Eventually a decision was made in a meeting described as ' convocatio prelatorum et magnatum de regno,' held on the quinzaine of Easter 1317? Murimuth, Continuatio Chronicarum, p. 273 : ' les bosoignes sur queles vous voudrez nostre counseil, avisement et nostre assent avoir . . . dussent estre tretez en plein parlement et en presence des peeres de la terre.' Again, in the treaty of Leake, there is a distinction drawn between the things that can be done in parliament and those that cannot: Parí. Writs, II. ii. 184; Cole, Documents illustrative of English History, p. i. The Lanercost chronicler comments upon the treaty between Andrew Harclay and Bruce that it was made ' sine scitu et consensu regis Angliae et regni in parliamento' ; Chronicon de Lanercost, p. 249. The king himself in his manifesto of 27 September 1326 refers to his having sworn ' les juggementz des piers et parlement . , , maintenir et pursuire,' which looks like the oath to which Lancaster referred ; Parí. Writs, II. ii. App. 292. 2 By the Ordinances the assent of the baronage in parliament was required to (a) gifts by the king, (¿) the king's leaving the country or making war, and (c) the appointment of ministers (Reí. Parí. i. 281 ff., nos. 7, 9, 14-16) ; and there were some minor or transitory provisions calling for action in parliament which clearly are not relevant. Lancaster mentions specifically only the incursion of the Scots as a matter upon which he is asked to give counsel, but upon this point his comment is that he will be at Newcastle in arms at the appointed day, and that the matter is presumably settled and his advice, therefore, not required (Murimuth, Continuatio Chronicarum, p. 273). We believe that the letter is in reply to the writ of i July 1317 (Parí. Writs, II. ii. 171), and that the business to which reference is made is that concerning Gascony, Wales, and Ireland, as well as Scotland, and this lies outside the scope of the Ordinances. Note the phrase in the writ ' pro quibus negociis que . . . omnes de regno nostro tangunt.' The tag derived from the code of Justinian seems certainly to have been applied to parliamentary business by contemporaries, as, for example, the Malmesbury chronicler who, when speaking of the parliament of 1311 and the approval required by the Ordainers to their work from ' dominum regem et alios magnates terrae,' adds ' Quod enim omnes tangit ab omnibus debet approbari ' (Chronicles of Edward I and Edward II, ii. 170). 3 Roí. Parí. i. 353 ff. ; Cal. Inquisitions Post Mortem, v. 353. This is, by the way, an admirable example of the continuity of precedent from the time of Henry III ; the procedure is obviously that laid down by Bracton, De Legibus (ed. Woodbine), p. 21 : Si autem aliqua nova et inconsueta emerserint et quae prius usitata non fuerint in regno, si tamen similia evenerint per simile iudicentur, cum bona sit occasio a simili bus procedere ad similia. Si autem talia prius numquam evenerint et obscurum et difficile sit eorum iudicium, tune ponantur iudicia usque ad magnam curiam ut ibi per consilium curiae terminentur. 1

XVI 74


Parliamentary privilege is unchanged under Edward II ; those notices of privilege—or what at least seems to be privilege—which have come down to us arise in the same ways as under Edward I. We have already spoken of the son's repeated attempts to enforce his father's rule that men must not come armed to parliament.1 Under Edward II as under Edward I special notice is taken of trespasses committed in their absence against those in attendance at parliament.2 Even more striking evidence of the sanctity of parliament under Edward II is the request of Humfrey de Bohun in 1321 that the king shall summon a parliament to which both he and Hugh Despenser may safely come3 ; and side by side with this incident we would place the permission to Henry de Beaumont to comply with the common summons to parliament, although he may not approach the king at any other time except when his services are required during war.4 If Edward II finds it necessary in 1315 to reassert the rule that citations are not to be served during parliament, it is evidence, in a double sense, of continuity : the rule is the same and there are those still willing to defy it, but the king is strong enough to enforce the law. This case is as complex as that of the earl of Cornwall in I29O. 8 A citation is served upon the countess of Warenne within the palace of Westminster, but although the offence is heightened because the countess is the king's niece and the place is within the peculiar of the abbot of Westminster, yet the contempt appears to lie in the fact that what had been done was done in the king's palace in the time of parliament.6 This is, we think, the more probable in view of another case in the parliament at Lincoln in the following year. There, in the cathedral on Sunday before Lent, there was a brawl between the young Hugh Despenser and John de Ros which led to fisticuffs and sword-drawing ; both offenders were brought before the king and charged with contempt of the king, with breaking his peace, and causing terror to the people attending parliament— in terrorem fopuli in dicto parliamento existentis."1 Ante, v. 131 ; besides the references there given, see Parí. Writs, II. ii. 103, App. 26; Cal. Close Rolls (1318-23), pp. 543 ff. 2 Cal. Patent Rolls (1313-17), p. 238 ; (1317-21), pp. 295, 303 ; Cal. Chancery Warrants 3 (1244-1326), p. 418. Parí. Writs, II. ii. 231. * Rot. Parí. 1.284; cf. Hist. MSS. Commission, Report on Fariotts Collections, i. 268 : evil counsellors to be removed and not to be with the king ' nisi quod in parliamentis et in guerris in communi 5 poterunt se offerre.' Ante, v. 131 f. 6 Coram Rege Roll, no. 220 (Easter, 1315), m. i l l ; Abbreviatio Pladforum, p. 321 : 'ipso domino rege in pallacio suo predicto existente et parliamentum suum ibidem léñente.' 7 Rot. Parí. i. 352. We hardly think the record warrants Professor Tout's statement that ' on Sunday, 22 February, parliament met before the king in Lincoln cathedral' (Place of the Reign of Edward II, p. 105). 1

of Edward II

XVI 75

If we perceive in the parliaments of Edward II any fresh complexion, it is in the greater admixture of politics and—perhaps largely as a consequence— the more frequent presence of the commons. In the use made of parliament for the discussion and determination of political differences between the king and the magnates, we have perhaps but a reversion to the state of affairs under Henry III ; but in the formal control by parliament of the council,1 of the appointment of ministers,2 and of the making of grants,3 we have something new in conception, and this is paralleled by the growing tendency to introduce diplomatic business into parliament. The famous letter to the pope drafted at the Lincoln parliament of 1301 4 is there to remind us that parliament had already had its uses in diplomatic relations. Another letter to the pope is drafted in the Stamford parliament of I3O9.5 The negotiation in parliament of treaties with the count of Flanders,6 the proposal to discuss in parliament the marriage of the king's son,7 the request of the doge of Venice that a treaty should be confirmed by parliament,8 these incidents do seem to point to a sensible enlargement of precedent, a widening of the functions of parliament. There is, however, no break in continuity ; and although the Ordinances may have attempted to give to parliament the ultimate control of the king's government, a control exercised without disguise by the council under Henry III,9 there is little other evidence of any conscious or deliberate attempt to alter the character of parliament. The complaint made at the Easter parliament of 1309 that, when the knights and townsfolk had come to parliament at the king's command, they could find no one to receive their petitions, certainly might suggest that an attempt was made to dam the flood of petitions presented in parliament 10 ; but the king at the following parliament agreed to revert to the practice of his father, and receivers and triers of petitions seem to This was the effect of the agreement at the Lincoln parliament of Hilary 1316 (Roí. Parí. i. 351 f.) and the treaty of Leake (Cole, Documents illustrative of English History, p. i ; Parí. Writs, II. ii. 184). 2 3 Rot. Parí. i. 282, nos. 14-16. Ibid. p. 281, no. 7. 4 Foedera, i. 926 f. ; Parí. Writs, i. 102 ff. ; Palgrave, Scottish Documents, pp. 231 fF. There is practically no doubt that the letter was never sent—it was a gesture and a precedent ; cf. ibid. Introduction, p. cxxxi ; Antient Kalendars of the Exchequer, i. 132 f. 5 Register of Richard de Swinfield (Cantilupe and Canterbury and York Societies, 1909), pp. 472 if. ; Chronicles of Edward I and Edward II (Annales Lond.), ii. 161 fF. ; Cal. Patent Rolls (1307-13), p. 180. 6 For the protracted negotiations and discussions in successive parliaments, see Rot. Parí. i. 356, 358 ; Parí. Writs, II. ii. App. I33ÍF. ; Cal. Close Rolls (i-¡i%-2^},-c^. 55,171,347^,395,400,405. 7 Cal. Close Rolls (1318-23), pp. 713 f. ; Foedera, ii. 524. 8 Chancery Miscellanea, 27, 12 (26): 'in parliamento generali domini regis Anglic, Archiepiscoporum, Episcoporum, Comitum et Baronum Anglic.' 9 Cf. Powicke, 'The Baronial Council (1258-60)' in Essays in Medieval History presented to 10 Rot. parl. i. 444. T. F. Tout, p 1

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have been regularly appointed during the remainder of the reign.1 This attempt, if such it was,2 to modify the character of parliament was therefore abortive. Significant, undoubtedly, for the later development of parliament is the more frequent presence of representatives of the commons. Here the turning point is the year 1310, the period of the Lords Ordainers. Of the seven parliaments of the first two-and-a-half years of Edward II's reign, the commons appear to have been represented at three.8 From the time when parliaments were resumed in August 1311, the commons are invariably present, with two exceptions, the York parliament of Hilary 1320, which the earl of Lancaster refused to attend, protesting against the impropriety of holding a parliament behind closed doors,4 and the Midsummer parliament of 1325.5 We do not propose to enter into the discussion of a famous clause of the measure approved in the Easter parliament of 1322 which repealed the Ordinances.8 All we need say is that the suggestion that the constitutional position of the commons was in some way thereby recognised rests upon the assumption that la comFor the parliaments of 1315, 1316,1318, and 1320, see Rot. Parí, i. 292 ff., 350, 365 ; Cole, Documents, p. 13. Cf. above, p. 71, n. I. 2 The exact meaning of the complaint is obscure ; there may merely have been delay in appointing receivers of petitions. For a petition to be presented at this parliament, see Cal. Close Rolls ( 1307-13) p. 145, and for one presented at the previous Michaelmas parliament, see L.T.R. Mem. Roll, 2 Edw. II (E. 368/79), m. 58. In the printed Rolls of Parliaments, i. 273 ff., there are to be found, derived from Hale's transcripts, ' petitiones in parliamento anno secundo Edwardi secundi ' ; the bulk may be of this date, but it is impossible that no. 34 (p. 280), for example, can be referred to this year. 3 Michaelmas 1307, Lent 1308, Easter 1309. Stubbs questioned the presence of the commons in Lent 1308 {Const. Hist., ed. 1896, ii. 333) ; but while it is true that the enrolment on the close roll mentions a writ to one sheriff and is apparently unfinished, there are other like cases (see below, p. 81, n. 2), and we need not suppose that writs were not sent summoning knights. The later references to expenses of knights at a parliament at Westminster in the first year (Parí. Writs,\\.\\. 56,116) are to our minds strongly confirmatory of the evidence of the close roll. Stubbs' suggestion that ¿23 was out of proportion to the length of the session and that, therefore, the Easter parliament of 1309 was meant surely involves overlooking the fact that at the latter parliament the knights seem to have remained sixteen days only (Parí. Writs, II. ii. 34). * Chronicles of Edward / and Edward II (Malmesbury), ii. 2 50. 5 But to this parliament representatives of the Cinque Ports were summoned (Parí. Writs, II. ii. 329)8 Statutes of the Realm, i. 189. The discussion has been summarised by Mr. G. T. Lapsley in English Historical Review, xxviii. 118 ff. ; since then it has been continued by Dr. Tout, Place of the Reign of Edward II, pp. 150 ff., and Mr. J. C. Davies, Baronial Opposition to Edward II, pp. 513 ff. The plain meaning of the Revocaiio Novarum Ordinaiionum is that the prerogative of the king must not be restricted as the Ordinances restricted it, but that otherwise parliament shall have the same powers as before. While we agree with much that Mr. Lapsley has written on this matter, we can come to no other conclusion than that the purpose of the measure was to annul the hateful Ordinances and that there was no ulterior purpose beyond preventing a like happening in future. See also Pollard, Evolution of Parliament, pp. 241 f., and Mr. Lapsley's preface to Pasquet, The Origins of the House of Commons, p. xi. 1

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muna/te du roialme must mean the knights and burgesses assembled in parliament, and that for this assumption we can find no warrant.1 We would not ourselves attach any constitutional importance to the presence of the commons in the parliaments of Edward II,2 but we perceive, as we have already suggested, considerable political importance. All parties desired the reality or appearance of popular support. The assemblies—which certainly were not parliaments— that swore fealty to Edward I in absence 3 and that greeted Henry III on two examples— his mock-triumphant return from war in 1243 4—*-° â^-e û* two seem to us to be as real precedents for the summoning of the commons by Edward II as the occasional presence of the commons in the parliaments of his predecessors. In France at this period we have the significant parallels of the assemblies convened by Philip the Fair to lend support to his campaigns against Boniface VIII and against the Templars 5—perhaps we should add against the Flemings in I3i4- 6 We should have made no reference here to this question but for the distinction that has been drawn between ' baronial ' parliaments and ' full ' parliaments, or, in other words, between parliaments to which the commons were not summoned and those to which they were.7 If there is any difference in function between parliaments, a difference in some way associated with the presence of the commons, we have entirely failed to remark it ; and no historian As Mr. Davies points out (op. cit. p. 513), the barons on occasion claimed to represent the commonalty or community ; many examples could be added to those he cites—from the Provisions of Oxford onwards. One notable instance is afforded by the famous ' bill ' presented in the Lincoln parliament of 1301 (Parí. Writs, i. 104). See also Stubbs' note (Const. Hist., ed. 1896, p. 175, n. 3). 2 We are unable to follow Professor Pollard in attaching importance to the ' common petitions of 13 2 5 ' as marking a stage in the emergence of a ' house of commons ' (Evolution of Parliament, pp. 119 f., 128). This document (Rot. Parí. \. 430) should be compared with similar ' common ' petitions of 1309 (ibid. 443 ff.) and 1301 (Parí. Writs, \. 104) ; all seem to have the same origin and to embody the requests of the general body of suitors attending parliament in contradistinction to the king and council by whom the petitions were considered. The petitions are those of a body that represented or claimed to represent the communitas, commune, or nation at large. We should require strong evidence before accepting the view that a similar series of petitions of 1327 (Rot. Parí. ii. 9 ff.}, to which also Professor Pollard attaches importance, had a different origin. Nor are we able to accept his interpretation of the actual requests made. But we cannot pursue here a discussion of the issues involved, although we have thought it desirable to indicate in a note that we have not overlooked these suggestions, with which our views are in obvious conflict. 3 4 Ante, v. 148. Close Rolls (1242-47), pp. 129 ff. 8 A mass of documents relating to these assemblies has been printed by G. Picot, Documents relatifs aux États Généraux et Assemblées réunis sous Philippe le Eel (Collection de documents inédits, 1901). See also H. Hervieu, Recherches sur les premiers Etats Généraux (1879), pp. 71 ff.,and Ch.V. Langlois in Lavisse, Histoire de France, III. ii. 259 ff. 6 Hervieu, op. cit. pp. 105 ff. Here we get something like assent to taxation. 7 Stubbs, Const. Hist. ii. 333, 338, 340 ff., 361 ff., and cf. iii. (1896) 391 ; Ramsay, Genesis of Lancaster, i. 12 f., 2 2 ff., 111, etc. ; Tout, Place of ike Reign of Edward II, pp. 87 f., I oo ff., 120, 134, 134 ; J. C. Davies, Baronial Opposition to Edward II, p. 291. 1

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has, we believe, made clear in what the difference consists. Nor did the parliaments to which the commons came exercise any superior authority ; one of the most authoritative, and certainly the most revolutionary, of Edward II's parliaments, that of Hilary 1310, in which the Ordainers were appointed, contained no representatives of the commons. Curiously enough, this parliament is termed by modern writers a ' council ' or ' grand council.' * It should be noted that this and other ' baronial ' parliaments transacted what we regard as normal parliamentary business, however much politics may seem in contemporary chronicles to dominate the meetings. Thus on 4 November 1309 the treasurer and council in London were being requested to put in writing the order of business to be transacted in parliament, with the instruction that it was to be so arranged that the king would not be detained for more than ten days or twelve at the most.2 Early in January 1310 the escheator beyond Trent is required to extend the town of Penrith and to send the extent under seal to the king in parliament at Westminster on the octaves of Candlemas.3 Similarly, in March 1308, the collectors of the twentieth and fifteenth in Devon are informed that the liability of the estate of Thomas, late bishop of Exeter, will be considered in the forthcoming Easter parliament and are told to stay their hands meantime.4 Again, in a ' baronial ' parliament, if ever there was one, that of Hilary 1320 at York,5 which the earl of Lancaster refused to attend, certain merchants of the Teutonic Hanse were given a day to answer a merchant of Lynn in a case of reprisals for piracy.8 In this same parliament the old brawl in which Hugh Despenser the younger had been* involved ih the Lincoln parliament of 1316 was mentioned, and the king of his special grace pardoned Hugh's trespass and ordered that the entry on the roll should be cancelled.7 As we have remarked of the parliaments of Edward I,8 and as these instances show, parliaments are of one kind only and the essence of them is the dispensation of justice. To the proper performance of the functions of parliament, to its legal authority, the presence or absence of the commons or any section of Stubbs, of. cit. ii. 341 ; Ramsay, ep. cit. i. 26 ; cf. Tout, op. cit. p. 87. J. C. Davies, Baronial Opposition to Edward II, App. no. 7, from K.R. Mem. Roll, 3 Edw. II (E. 159/83), m. lod. These instructions were given before it was decided to change the venue from York to London and when apparently it was intended to summon the commons, if that is, as we suspect, the meaning of the phrase ' nostre grant parlement.' 3 Cal. Chancery Warrants (1244-1326), p. 308 (no. 858). * Madox, Baronía Anglica(1736), pp.i 17-8 n., from L.T.R. Mem. Roll, i Edw. II (E. 368/78), m-975 As the Malmesbury writer says, ' vocavit igitur dominus rex barones suos apud Eboracum ut de statu regni disponerent ' ; Chronicles of Edward I and Edward II, il. 250. « Cal. Close Rolls (1318-23), p. 170. 7 Rot. Parí. i. 3 52 ; see above, p. 74. The entry, so far as it concerns Hugh Despenser, is in fact 8 vacated on the roll; Exchequer Parí. Roll, no. 20, m. 3. Ante, v. 133. 1 2

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the commons was irrelevant. No one, we presume, would contend that there was more than a political purpose behind the summoning of Welsh representatives in 1322 and I327,1 or that the authority of parliament was impaired by their absence throughout the rest of the middle ages. A further point calls for comment, and that is the bearing of the Ordinances of 1311 upon the functions of parliament. The intention, doubtless, was to give parliament some formal control—we need not here inquire how effective this proved to be—over administration.2 And the Ordinances contained an article providing that the king should hold his parliament once a year, or twice if necessary, in a convenient place.3 The reasons given, be it noted, related primarily, if not purely, to the administration of law ; four classes of business are regarded as necessary to be dealt with in parliament—actions delayed because the defendants plead that they cannot reply without the king \ grievances of those suffering from the illegal actions of the king's ministers ; pleas regarding which the opinion of the justices is divided ; and petitions (billes). The suggestion has been made that the real purpose of the article was to restrict the royal power to do justice and to substitute a tribunal of the magnates.4 This explanation seems to us incredible. In the first place, the four classes of business are exactly the matters with which parliament had d.ealt not only in the earlier part of the reign, but in the time of the king's father and, we may add, of his grandfather also.5 True it is 1 Foedera, ¡¡.^484; Parí. Writs, II. ii. 364. There was also presumably some kind of Welsh representation in the Hilary parliament of 1316, but, so far as we know, there was no formal summons (feedera, ii. 283 f.). 2 The Ordinances must be read with the agreement of 1316 and the treaty of Leake (above, p. 7 5, n. i). Parliamentary control did not,itwould seem, become effective until the meeting at Michaelmas in 1318 and speedily broke down : see Tout, Place of the Reign of Edward II, pp. 124 ff. ; J. C. Davies, Baronial Opposition, pp. 450 ff. 3 4 Rot. Parí. i. 285 (no. 29). Davies, op. cit. pp. 374, 511 f. 6 Enough evidence for the parliaments of Edward I will be found in the references given in the first part of this paper ; for the early parliaments of Edward II, see the references already given in this part. We have cited Bracton on the resolving of judicial doubts (above, p. 73, n. 3) ; such cases are difficult to find in records of actions before parliament under Henry III, either because of an absence of detail or because some other factor, such as the interest of the king, might itself be sufficient to bring a case into parliament. We may refer provisionally for specimens of cases in parliament under Henry III to Trans. Royal Hist. Soc., 4th Series, v. 56 ff., 60 ff. For a good example of an action delayed because the defendant pleads ' quod sine domino rege inde respondere non potest,' see Curia Regis Roll, no. 158, m. 12, an action before the parliament of Oxford in 12 5 8. As examples of actions against royal ministers, there are the well-known cases of Henry of Bath in 1251 (Matthew Paris, Chronica Maiora, v. 223 ; Annales Monastici (Tewkesbury), i. 143),and of Simon de Montfort in 1252 (Bémont, Simon de Montfort,pp. 42,340,342) ; for lesser fry, see the action against Henry Lovellini 259 (Trans. Royal Hist. Soc., 4th Series, v. 60), but this had some special features. The exact procedure with regard to petitioning under Henry III requires an extended discussion which is not possible in a footnote ; here we need remark only that we can detect no new departure under Edward I.

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that Hereford remits a case to parliament and vouches the ' new ordinances ' as directing him to do so in such a case where the justices are in doubt about their judgment1; but had not Fleta already described parliament as the court 'ubi terminate sunt dubitationes iudiciorum ' ? To our mind, the article affords the strongest possible confirmation of our view that the functions of parliament remained unchanged. In the second place, we must point out that parliaments were held not more frequently but less frequently after the Lords Ordainers were appointed and the Ordinances were drawn up and accepted. As we have already remarked, in the first two-and-a-half years of the reign, there were seven parliaments ; with the Westminster parliament of February 1310 and the appointment of the Ordainers, parliaments cease for nearly a year and a half. From 1311 onwards there are sometimes two parliaments a year and sometimes one, with two big gaps in 1316-18 and after the revocation of the Ordinances in 1322-24. Clearly there could be no quarrel with the king on the score of the infrequency of parliaments in the early years of his reign ; his record, indeed, compared very favourably with that of his father's later years.2 If an explanation of the article is necessary, ours would contain no suggestion that it embodied anything novel or was aimed at restricting the king in any way. The point that strikes us is that, although the Ordainers were given the task of reforming abuses and although so recently as the Easter parliament of 1309 there had been complaint that receivers of petitions had not been appointed,3 they let such a long time elapse during which parliaments ceased entirely. It may be that the king himself was reluctant in the circumstances to convene a parliament, quite apart from the Scottish war, an adequate reason in itself, having regard to the precedents of the previous reign, for some interruption in the regular sequence of parliaments.4 But if blame there was for the 1 Year Book, 2-3 Edward II (Selden Soc.), p. 52. There is a difficulty about the date of this case. If the reference is to the Ordinances of 1311, as we have them, then the hearing reported in the Year Book cannot have been earlier than the Michaelmas term, 5 Edward II. We may note further that Hereford's actual words seem uncertain ; Add. MS 35116, f. 2oob, from which this passage is printed, reads ' qe si justices soient en ewer de lour jugement,' and Maitland translates ' in doubt,' but we do not know on what authority, and we suspect scribal corruption. The Ordinances themselves read ' en diverses opinions ' ; Rot. Parí. i. 285, no. 29. 2 The comparison can now be easily made with the aid of the lists printed ante, v. 151-4, and below, pp. 85-88. 3 Rot. Parí, i. 444 : see above, p. 75. 4 The Lanercost chronicler states that the king was somewhat reluctant to come to London to meet parliament (Chronicon Je Lanercost, p. 216). This is also implied by the Malmesbury chronicler (Chronicles af Edward I and Edward II, ii. 169 ff.). This impression appears to have been derived from the king's immediate circle (Cal. Documents Scotland, iii. 40). But the appointment of the Ordainers does seem in some fashion to have been regarded as suspending normal procedure ; otherwise,

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suspension of parliament, it would be difficult for the Ordainers themselves to evade some part of the responsibility ; their scheme of reform seems not in any case to have been ready until the beginning of August 1311 .* If, therefore, the cessation of parliaments and the delay of justice during their tenure of office had given rise to popular discontent, the Ordainers would desire to put themselves right by making reasonable provision for the future. We have now certain comments to make upon the appended list of parliaments of Edward II. Let us say, at the outset, that we have not the same uncertainties here that we have with the parliaments of Edward I. The recording of writs, if still imperfect,2 is quite obviously better under the second Edward than in the earlier part, at any rate, of his father's reign. We would draw attention also to the coincidence of the parliaments in respect of which writs of summons were issued with the parliaments of which a record survives in the ' Rolls of Parliaments ' or some other official source. The suggestion that there was any disparity in this respect under Edward I we have already rejected; the evidence from the reign of Edward II strengthens our case. Incidentally, we may remark upon the fragmentary state of the records of the parliaments of Edward II as we now possess them; there are no more than eight items in the series of Exchequer parliament rolls ascribed to this reign as against twentyseven parliaments at least. That these large gaps in the records had their origin in some falling off in the recording of parliamentary business we cannot suppose, but of this and of other aspects of the records we must reserve our discussion. even if the king had been engaged in war or other urgent business, he might have authorised commissioners to open parliament, a procedure actually adopted when the resummoned parliament met in November 1311 and followed not infrequently thereafter (Parí. Writs, II. ii. 57, 96, 135; Cal. Patent Rolls (1321-24), p. 217 ; Cal. Chancery Warrants (1244-1326), p. 571 (no. 7247) ; cf. Pari. Writs, II. ii. 170). We have found very interesting evidence which suggests that it had in fact been decided to hold a parliament in the Easter term, 1311, and that the chancellor and others had been appointed commissioners for that purpose ; the arrangements, however, must have been cancelled later. Ancient Correspondence, xxxv. no. 5 3 : Philippus dei gracia Francorum rex discretis viris nobis dilectis cancellario et ceteris gentibus karissimi et fidelis nostri Edwardi regis Anglic et ducis Acquitanie illustris, ad tenendum post instans Pascha proximum parlamentum Anglic apud Londonias a rege eodem deputatis, salu tern et dileccionem. Cum dilectus et fidelis noster episcopus Abrincensis de nostro existens consilio, occasione quorumdam redituum seu bonorum, quos habere dicitur idem episcopus in insulis Gersoii de karmo et hermo, ad parlamentum predictum, vt asserit, sit citatus, vos requirimus et rogamus quatinus dictum episcopum et eius negocia amore nostri recommendata habentes gentem died episcopi eiusque negocia amicabiliter et benigne recipere et tractare ac céleri ter et féliciter expediré velitis prou t hactenus extitit obseruatum. Datum Parisius vi die Aprilis anno domini m° ccc° x°. In 1311 Easter Day fell on 11 April. 1 See the document printed by Davies, Baronial Opposition, p. 591, no. 114, and cf. ibid. p. 366. 2 Although certain enrolments seem incomplete (Parí. Writs, II. ii. 19, 81, 120, 215, 216), yet there are not such extensive gaps as there are under Edward I ; cf. ante, v. 130, 135, 137.

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In framing our list of the parliaments of Edward II we have, of course, rejected the attempted distinction between a * parliament of magnates ' or * baronial parliament ' or whatever the phrase may be, and a ' full parliament ' of the ' three estates.' We recognise, indeed, the difficulty of distinguishing in certain cases between a great council and a parliament ; there are obviously certain close resemblances between what are described at the time as ' parlemenz et tretemenz et autres assemblemenz ' l and, as we have seen, a ' convocatio magnatum ' might, equally with parliament, resolve judicial doubts. The chief source of confusion is the persistence of the chancery in adhering to a formula which omitted from the writs of summons any mention of parliament. A good many exceptions may be met with both under Edward I and Edward II, but the general rule of the chancery clerks, at least in all except the latest part of the period 1272-1327, appears to have been to describe a meeting of parliament as ' colloquium et tractatus,'2 although the rubric of the enrolment usually mentions parliament.3 This practice of omitting from the writ of summons any word of parliament may be traced back to the reign of Henry III and is clearly traditional 4 ; doubtless it dates from the time when the word Foedera, ii. 192 ; Chronicles of Eäwara I ana Edward II (Annales Lond.), i. 224. Cf. Pari. Writs, II. ii. 318, no. 8, as to cross-bearing by archbishops in parliaments and tractatus. 2 Yet ' parliament ' appears in the writs summoning the first two parliaments of Edward I (Parl. Writs, i. i ; English Historical Review, xxv. 236 ; Stubbs, Const. Hist. (1896) ii. 234, n. 5), but then only once again, in 129 5, until towards the end of the reign, when it is used in the writs summoning nearly every parliament from 1300 onwards (Parí. Writs, i.82,88,114,136,158,181). Under Edward II * parliament ' appears in the writs for all three parliaments of 1308, when the venue is changed in 1310, and much more often than not from 1311 to the end of the reign ; curiously enough, although in the writ summoning parliament for 18 November 1325 the word appears, the rubric to the enrolment reads 4 Pro Rege de tractatu habendo ' (Parí. Writs, II. ii. 334). We cannot perceive any system in these vagaries. A form of writ was, as we should suppose, embodied in a precedent book in the chancery and was, in some points at least, supposed to be sacrosanct ; it is described as ' la fourme qe ad este use en touz temps, solom ceo qe poet estre trove en regestre de chauncelirie ' (Chronicles of Edward I and Edward II (Annales Lond.), i. 227). But obviously the form was modified in nonessentials, and one of these non-essentials seems to have been the specific reference to parliament. 3 No such rubric, however, appears against the enrolments for the parliaments of Michaelmas 1283, Easter 1290, and (if, indeed, the writs are strictly relevant) May 1306 (Parí. Writs, i. 15 f., 21, 164). But all the writs are exceptional in form. Under Edward II no rubric which mentions parliament appears against the enrolment of the writs summoning the Stamford parliament of July 1309, or summoning knights to the adjourned meeting at Lincoln in July 1316, or summoning the ' colloquium et tractatus ' called for the octave of Hilary 1324, for which the ' parliamentum,' meeting on 2 3 February, was substituted, or the ' tractatus ' called for 3 March 1325, adjourned to 14 April, andfinallyabandoned (Parí. Writs, II. ii. 37,166, 286 ff., 323 fF.). All these occasions, save perhaps the first, seem to be exceptional. 4 Cf. the writs for the parliament of Hilary 1265 (Foedera, i. 449) ; it is to be noted, however, that the writ to the Cinque Ports (Close Roll, no. 82 (49 Henry III), m. i id ; Brady, Introduction to the Old English History, p. 140) and the writs for expenses (Close Roll, 82/iod, and Brady,«?/, cit., pp. 140 f.) mention parliament. 1

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was regarded as little better than slang.1 In other writs, as, for example, those appointing to litigants a day of hearing in parliament, no difficulty was made about using the word, and official memoranda of various kinds also employ the word freely.2 It seems clear too that, whatever the terms of the writs of summons, it speedily became known throughout the country that a parliament was to be held 3 ; hence proxies and sheriffs' returns frequently speak of parliament, although the writ to which they are an answer does not contain the word.* A summary of the documents connected with the meeting at York in November 1322 will give a fair idea of the obscurity which may be caused by the conservatism of the chancery. The assembly was in the first place summoned to meet at Ripon on 14 November ; it is described as colloquium et Upon this see a paper on ' The Origins of Parliament' in the forthcoming Trans. Royal Hist. Sec., 4th Series, vol. xi. The customary formulas or something like them were probably in use as early as 1234; see writ to mayor and citizens of Dublin : Close Rolls (1231-34), p. 395 ; cf. Close Rolls (1234-37), pp. 331, 543 ff.; (1237-42), p. 428. 2 The earliest enrolments of writs of this kind with which weare acquainted occur,for the chancery in 1242 (CloseRolls, 1237-42, p. 447), for the exchequer in 1248 (L.T.R.Mem. Roll, 32 Henry III (E. 368/20), mm. 4, 13) ; they are to be found fairly frequently during the rest of the reign, and under Edward I they become very numerous. The earliest official documents recording transactions in parliament eo nomine appear on the close roll for 1248 (close roll, 1247-51, pp. 107, 109). 3 Quite how this happened is not clear, but obviously litigants and other parties summoned to parliament would have to make it their business to discover when the next meeting of parliament would be, if a day were not specifically stated in their writs; and intending petitioners or their agents would also make it their business to learn when parliament would meet. In such cases it is possible that the chancery clerks were the channel of communication (see ante, v. 130). In some cases, however, fresh writs probably issued when the meeting of parliament was definitely fixed; in one instance known to us, certain defendants having been given day in the next parliament by justices of oyer and terminer, after the parliament of Carlisle had been summoned a writ was addressed to the sheriff to require them to be present to hear judgment (Exch. Parl. and Council Procs. E. 175/1/21, no. 17). Occasionally the date of the next meeting of parliament was settled well in advance or even before the close of the previous parliament (Foedera, ii. 192; Chronicles of Edward I and Edward 11, (Annales Lond.), i. 222 ; Hist. MSS. Coram., Report on farious Collections, i. 269—letter from archbishop dated 8 August 1318 referring to parliament for which writs issued on 2 5 August, but naming York instead of Lincoln as the place of meeting; Cole, Documents illustrative of English History, p. 4). At other times the writs immediately followed the decision, taken in consultation with the king, to convene a parliament; for example, we know from some council memoranda that early in August or late July 1308 (Cal. Documents Scot/ana1, iii. 9 ; this document is undated, but clearly from internal evidence it cannot be many days earlier than the writs of military summons of r r August, printed Parl. Writs, II. ii. 377) it was agreed, subject to the approval of the king, to summon a meeting in three weeks of Michaelmas; the writs actually issued on 16 August (Parl. Writs, II. ii. 22). In such a case as this, few could have known of the date of parliament before the writs of summons actually arrived at their destinations. The messengers bearing the writs are quite likely, however, to have known that parliament was meeting and to have published the fact informally. How soon public and formal proclamation was made of a forthcoming parliament is uncertain (cf. Maitland, Memoranda de Parliament, pp. Ivi f.). 4 Parl. Writs, i. 34, 49 et passim. Occasionally there was a misunderstanding; cf. ante, v. 149, n. 7 ; Parl. Writs, II. ii. 162. 1

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tractatus in the body of the writ of summons, but against one entry in the close roll is the rubric Summonicio parliamenti? and it is on the strength of this rubric that we have, somewhat doubtfully, included the meeting in our list of parliaments. The venue was later changed to York ; in the writs instructing the sheriffs to proclaim this, there is, however, no mention of parliament.2 Although in some of the proxies and sheriffs' returns the assembly is spoken of as a parliament,3 yet it is not so described in the writs of expenses * ; and in the documents concerning the subsidy granted to the king the assembly is called tracfatuSy tretiz.5 We have, as yet, traced no writs adjourning litigants or others to this parliament or any documents recording proceedings other than the grant of the subsidy. We may note in conclusion that, as under Edward I, so under Edward II special meetings of town representatives continued to be called ; at least four meetings of merchants were summoned to consider the question of the staple. One meeting in 1316 was held in conjunction with the Hilary parliament at Lincoln6 ; the three others, in January 7 and April 1319 8 and June I326, 9 were independent of parliament. The chroniclers, as is their wont, make parliaments of meetings which undoubtedly are not parliamentary in any technical sense. The parliament at Northampton in August I3o8,10 the secretum parliamentum at York in October 1 3°9>11 tne parliament at London in the spring of I3i6, 12 that at Leicester in April 1318,13 that at Northampton in 132o,14 that at Winchester in April 1325,15 all these we equally reject. Occasionally a meeting of convocation is termed parliament by contemporary writers,16 but little confusion is likely to arise in 2 ParL Writs, II. ii. 261 f, Ibid. II. ii. 263. 4 Ibid. 263 ff., nos. 16, 18, 19, 21, 23, 27, 33. Ibid. 277 f. 5 6 Ibid. 278 f., 286. Foedera, ii. 281 ; cf. ante, v. 149. 7 Parí. Writs, II. ii. 196 ; Cal. Patent Rolls (1317-21), p. 250. 8 English Historical Review, xxix. 94 ff. ; Tout, Place of the Reign of Edward II, pp. 254 ff. 9 Parí. Writs, II. ii. App. 287. 10 Chronicles of Edward I and Edward II (Annales Lond.), p. 156, (Annales Paulini), p. 264. II Hemingburgh, Chronicon, ii. 275. 12 Trokelowe, Annales, p. 94. There was, however, a special meeting of the council; s&z Foedera, ii. 287. This meeting is described in the Syllabus (i. 188) as ' parliament.' 13 Chronicles of Edward I and Edward II (Bridlington), ii. 54 f. ; cf. Essays in History presented to i4 R. L. Poole, p. 361. Chronica de Me/sa, ii. 338. 15 Flores Historiarum, iii. 230. A meeting had been summoned to Winchester for 3 March, prorogued to Westminster for 14 April, and those summoned finally excused. This abortive meeting is described in an Evesham cartulary, though not in the Close Roll, as parliament ; Parí. Writs, II. ii. 325 ff. It is not clear that a meeting of any sort took place at Winchester. 16 E.g. in a Canterbury register, Parí. Writs, II. ii. 162 ; by Adam Murimuth, Continuatio Chronicarum, p. 30. (There seems, however, to be some difficulty here with regard to dates. Convocation was summoned for 3 February 1319 and then put off, Parí. Writs, II. ii. 196: Murimuth I

3

of Edward II

XVI 85

1

this way. Of the so-called ' Lancastrian parliaments ' at Sherburn in Elmet and at Doncaster in June and November 1321,2 we need remark only that no contemporary writer appears so to refer to them, and it seems a needless darkening of counsel to use such dangerous terms—not that any reader is likely to suppose the meetings to have been called for true parliamentary purposes, but because such a misdescription, like the misdescription of ' baronial parliaments,' is calculated to obscure the meaning to be attached to the word.

APPENDIX

—TABLE OF THE PARLIAMENTS OF EDWARD II

[The printing of the term in italics indicates that, though it was originally intended to hold a parliament at this time, it was either postponed or countermanded. In one case, where there is doubt as to the nature of the assembly, the term has been enclosed within square brackets. For convenience in tabulation, C.C.R. i. denotes the Calendar of Close Rolls (1307-13) ; C.C.R. ii. (1313-18); C.C.Æ.iii. (1318-23); C.C.R. iv. (1323-27); C.C.R. v. (1327-30). Similarly, C.P.R. i. denotes the Calendar of Patent Rolls (1307-13); C.P.R. ii. (1313-17); C.P.R. iii. (1317-21) ; C.P.R. iv. (1321-24) ; C.P.R.v. (13 24-27). C.F.R.i. indicates the Calendar of Fine Rolls (1307-19); C.F.R. ii. (1319-27); C.Ch.W. i. the Calendar of Chancery Warrants (12441327) ; P.W., Parliamentary Writs, II. ii.] Authorities. Year.

Term.

Place.

Record.

Chronicle.

P.W. 1-13 (C.C.R. i. 41) C.P.R. i. 22 1308 Lent Westminster P.W.i%-i

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