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

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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.

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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

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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

The Origins of Parliament

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 fran^aise 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.

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The Origins of Parliament

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.

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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

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The Origins of Parliament

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

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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

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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. fran^aise 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

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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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The Origins of Parliament

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

The Origins of Parliament

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

The Origins of Parliament

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.

The Origins of Parliament

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

The Origins of Parliament

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

The Origins of Parliament

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

The Origins of Parliament

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.

The Origins of Parliament

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

The Origins of Parliament

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.

The Origins of Parliament

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

The Origins of Parliament

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.

THE ORIGINS OF PARLIAMENT

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.

THE ORIGINS OF PARLIAMENT

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

THE ORIGINS OF PARLIAMENT

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.

THE PROVISIONS OF OXFORD

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

THE PROVISIONS OF OXFORD

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).

THE PROVISIONS OF OXFORD

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

THE PROVISIONS OF OXFORD

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

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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).

THE PROVISIONS OF OXFORD

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.

THE PROVISIONS OF OXFORD

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

THE PROVISIONS OF OXFORD

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

THE PROVISIONS OF OXFORD

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

THE PROVISIONS OF OXFORD

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.

THE PROVISIONS OF OXFORD

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).

THE PROVISIONS OF OXFORD

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

THE PROVISIONS OF OXFORD

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.

THE PROVISIONS OF OXFORD

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.

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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.

AND BOROUGHS IN 1368

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.

AND BOROUGHS IN 1268

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.).

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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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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

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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.).

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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

The English Parliaments

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.

of Edward I

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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

The English Parliaments

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

of Edward I

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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

V 138

The English Parliaments

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

The English Parliaments

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

of Edward I

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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

The English Parliaments

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

V 143

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

The English Parliaments

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

The English Parliaments

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

The English Parliaments

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

The English Parliaments

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.

The English Parliaments

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

The English Parliaments

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)

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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.

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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.

PARLIAMENT, 1272-1307

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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.

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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.

PARLIAMENT, 1272-1307

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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

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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

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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

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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

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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

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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.

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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

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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

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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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THE

CLERGY IN

THE

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

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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.

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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.

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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").

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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.

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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).

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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

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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.

IX 254

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.

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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

Parliamentary Representation

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

Parliamentary Representation

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., I^oy—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

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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

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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

THE PARLIAMENT

OF CARLISLE

XII 437

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

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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

The Scottish Parliaments

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 Scottish Parliaments

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

The Scottish Parliaments

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 Scottish Parliaments

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

The Scottish Parliaments

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

The Scottish Parliaments

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

The Scottish Parliaments

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. —

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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

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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

of Edward I

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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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The Irish Parliaments

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.

of Edward I

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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

of Edward I

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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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The Irish Parliaments

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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XV 141

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."

of E award I

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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

The Irish Parliaments

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 . . . .

The Irish Parliaments

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 (i^op. 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

The English Parliaments

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

The English Parliaments

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

XVI 76

The English Parliaments

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

of Edward II

XVI 77

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—*-° ^a^-e ^u* 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

XVI 78

The English Parliaments

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

of Edward II

XVI 79

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.

XVI 80

The English Parliaments

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,

of Edward II

XVI 81

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.

XVI 82

The English Parliaments

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

of Edward II

XVI 83

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

XVI 84

The English Parliaments

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<) Ann. Paul. 262 (C.C.Æ. i. 51) Murimuth,\2 Easter Westminster P.W. 20-21 Ann. Paul. 263 (C.C.R. i. 5 5) Ann. Lond. \ 5 3 L.T.R. Mem. Roll, i Edw. II (E. 368/78), m. 97a says it was held soon after Easter, 8 April, that he went to Avignon on behalf of the prelates, and that the pope agreed to a clerical tenth for one year. The bull is dated 29 May 1319, Wilkins, Concilia, ii. 492. But on 19 April Murimuth was appointed one of the proctors for Christ Church, Canterbury, at the parliament at York meeting on 6 May, Parí. Writs, II. ii. 199). For a like usage in 1264, see Bishop Eronscombe's Register (edited F. C. Hingeston-Randolph, 1889), pp. 218 f., where the bishop's proxy for the convocation at St. Albans, congregatio, as it is termed in the body of the document, is described as ' Procuracio ad Parliamentum ' and ' Litera Procuratoria ad Parliamentum apud Sanctum Albanum.' 1 It is, however, a little surprising to find a reference in the patent roll to meetings of convocation of Canterbury and York indexed as ' parliament,' Cal. Patent Rolls (1313-17), pp. 114, 919. 2 For these gatherings,seeC/5röÄ/^j(^^^ör^/ö»^^'i/zz'ör
Michaelmas

Northampton

The English Parliaments

XVI 86 Year.

Term. Michaelmas

1309 Easter 27 July

Place. Westminster

Westminster Stamford

Authorities. Record. Chronicle. P.W. 22-3 ¿Í»». Prftt/. 264 (C.C.R. i. 76) ^»». £
1310 Candlemas

[Yorkjchanged P./F. 40 (York), 41-2 later to] (Westm.) Westminster (C.C.R. i. 235, 237) C.P.Æ. î. 206-7 K.R. Mem. Roll, 3 Edw. II (£.159/83), m.iod.

1311

8 August [adjourned to]

London

5 November

Westminster

1312 Lent 23 July, postpene J to zo August

1313

P. W. 68-70 (C.C.Æ i. 447, 449) [Lincoln, P.W. 72-3 changed to] (C.C.R. i. 461) Westminster /*.^. 74-9 (C.C.R. i. 540, 561) C.F.R. i. 143 A«, /'¿r/. ¡.311

Westminster

Midsummer

Westminster

23 September

Westminster

9 September

Ann. Paul. 267 ^Ä». Land. 157 Ann. Land. 167-8

L/'¿
Westminster

Lent

1314 Easter

P.W.44-56 ; App.37-9,41 (C.C.R. i. 362-3, 430) C.C.R. i. 437 P.W. 57-67 (C.C.Ä. i. 438-9, 448) Rot. Part.i. 356 f.

Ann. Paul. 267 .i/urø. £0«<¿ 157

Westminster York

P. W. 80-91 (C.C.R. i. 564, 581) C.P.A.Í. 553, 556 P.W. 94-100; App. 63 (C.C.Ä. 1.538,583-4; ii.67) C.C/Í./F. i. 391 P.W. 100-2; 116-19 (C.C.Ä. ii. 67-8, 80) C.P.R. ii. 26, 32 P.W. 119-21 (C.C.R.Ü. 85,95) P.W. 126, I34ÍF. (C.C.Æ. ii. 192, 194-5, J99) C.P.Æ. ii. 238

Ann. Land. 209

Ann. Land. 222 Malmeseury, 193 Trokelowe, 80

Flores Hist. m. 339 Murimuti, 21

of Edward II

XVI 87 Authorities.

Year. 1315

Term. Hilary

Westminster

P.W. 1368. (C.C.R. ii. 199, 202, 219) C.F.R.'i. 218 Rot. Parí. i. 294

Trokelowe,^ Malmeseury, 209

1316

Hilary

Lincoln

P. W. 152 (C.C.R. ii. 314, 326) Rot. Pari. i. 337, 347, 350

ans Ann. Land. 237 Bridlington, 49

Hilary, postponed to

Lincoln

P.W.i-jiS. (C.C.R.ÍÍ. 585-6)

F ¡ores Hist. iii. 180 Malmesèury, 230, 233

Place.

Record.

Chronicle.

1317 1318

Lent, postponed to Trinity Michaelmas

P.W. 175 ff. (C.C.R. ii. 590)

p.w.i-jzs.

York

(C.C.R. ii. 601, 619) p P.fT.iSzff. (C.C.R. iii. 99, 116) C.F.R.i. 385,401 Cole, Documents, pp. i ff.

Malmesbury, 233 .¿»ff. /W. 284 Trokelowe, 102

1319 Easter

York

P.W. 197 ff. (C.C.R.ÍÜ. 131, 139) C.F.R. i. 401 Cole, Documents, pp. 47 ff.

1320

Hilary

York

^»». /W. 287

Michaelmas

Westminster

P.W. 215-16 (C.C.Æ. iii. 214) (C.C.Æ.iii. 170 Rot. Parí. i. 3520 P.W. 219 fi. (C.C.R.Ü1. 323-4, 338) C..F.Æ. ii. 35, 38,41 Æo/. Por/, i. 365

1321 Midsummer

Westminster

P.W. 234 ff. (C.C.Ä. iii. 375,486) C.P.R. iv. 2i

^»». PÖ«/. 292 Murimuthy 33

1322

York

Easter

[14 November] 13231 1

Bridlington, 56 ^»». /W. 286

^/»». Paul. 290

/>.¿T. 245 ff. ^/»/f. POØ/. 303 (C.C.Æ.iii. 527-8, 555) MurimutA, 37 C.F.R. ii. 113, 114 L.T.R. Mem. Roll, 16 Edw. II (E. 368/93), m. 53 [Ripon, P.W. 261 ff, 265, 278-9, 286 changed to] (C.C.R. iii. 679, 688) York C.P.R. iv. 224-5, 3 2 4

In a letter, dated 6 June 1323, the king announced his intention of convening a parliament soon after Michaelmas : Cal. Close Rolls (1318-22), pp. 713-14.

XVI Year. Term. 1324 23 February

The English Parliaments Place. Westminster

Authorities. Record. Chronicle. P.W. 289 ff. MurimutA, 42 (C.C.R.ÍV. 152, 160) Ann. Paul. 306 P.W., App. 246 ff., 265 P.W. 3 i 7 f f . <^#». Paul. 308 (C.C.A.ÍV. 311, 329) C.C.R.iv. 316

20 October

Westminster

Midsummer

Westminster

18 November

Westminster

P.W. 328 ff. (C.C.R. iv. 374-5) P.W. 334
1326

14 December, postponed to

Westminster

P.W. 35off. (C.C.Ä.iv. 654)

1327

Hilary

Westminster

/>./r.35off. ) 3 64 (C.C.Ä. iv. 654 ; v. 107) C.C.R. iv. 627, 630

1325

Malmesbury, 282

MurimutA, 50 .¿/»r. PÔ«/. 322 F/ør. //¿r/, iii. 235

NOTES Page 71, n.l Below, XX. See Rot. Parí., i. 421 : the bishop of Exeter had handed in a petition at every parliament of the last six years on one particular grievance. We can understand the endorsement on Ancient Petition, no. 4469: 'Pur Dieux exploitez cest home a plus en hast qe vous poez issint qe nous ne com plus crie de lui' (c. 1337). 71, n.7 King's Bench Roll, no. 255, m.66: the rolls of the court were brought into parliament and, after examination, the judgement of the court was upheld. 72, n.5 Below, XV. 143-144. 73, n.3 an indictment for treason against the bishop of Hereford in 1324 was heard 'coram domino rege in pleno parliamento ... in presencia ipsius domini regis, comitum, baronum et aliorum fidelium domini regis tune in parliamento convocatorum (Sayles, King's Bench, iv. 143). 74, 1.1 For parliamentary privilege see Ancient Petition, no. E.843: John of Freshingfield, a member of the council in 1312-1313, complained of an attachment by the abbot of Westminster for debt; Ancient Correspondence, XXXV. 209: the Official of York had in 1315 sequestrated the property of Master John Bush, a sworn clerk of the council, whilst he was at parliament and under the special protection covering all those attending parliament. On Bush's complaint all the justices and the serjeants of both benches and others of the council were ordered to provide suitable redress (Cal. Chancery Warrants, i. 418); King's Bench Roll, no. 224, m.22d: the prior of Maltón, who was seized and detained when returning from the Lincoln parliament of 1316, invoked parliamentary privilege; Ancient Petition, no. 2197: Robert of Etchingham, knight of the shire for Sussex, complained of robbery whilst he was at parliament in 1321. Note also K.R. Memoranda Roll, no. 116 (14 Edward III), Mich. Recorda: the parliamentary representative of Bedford was released from prison, to which he had been committed by the exchequer although at the time he was occupied with his duties in parliament.

of Edward II

XVI 89

74, n. l Throughout/or ante read Bull. Inst. Hist. Research. Above, V. 131. n.5 Above, V. 131f. 75, 1.2 The time of parliament at York in September 1314 had been taken up with the affairs of the crown by reason of the war with Scotland (Letter Books London, p. 307); a diplomatic envoy at the parliament of Lincoln in 1316 had waited ten days and still could not get speech with the king (Exchequer, Parí, and Council Procs., 2/7); the business of Aquitaine was to be brought to parliament in 1318-1319 for consideration (Ancient Correspondence, XXXII. 112); nomination was made in parliament of the king's representatives to the court of the king of France (ibid., XXXVII. 33). 77, n.3 Above, V. 148. 78, 1.6 Actions concerning fines, levied previous to the statute of fines, were adjourned in and after 1308 'ad proximum parliamentum suum magnum' until in May 1315 it was agreed in parliament that process on fines, levied before as well as after the statute of fines, should be in accordance with the form of the statute (King's Bench Rolls, nos. 180, m.26, 192, m.36, 218, m.55d). 78, n.8 Above, V. 133. 79, 1.6 Ancient Correspondence, XLV. 187: appointment of four justices on 18 May 1315 to hear plaints in Norfolk and Suffolk 'par commun assent de nostre parlement'. 80, n.2 Above, V. 151^. 81, n.2 Above, V. 130, 135, 137. 83, n.l Below,!. 152. 84, n.4 Richard Duraunt and William Rous, knights of the shire for Middlesex, who came to York on 14 November 1322, were to receive 108 shillings in expenses for 27 days at two shillings a day, i.e. for twelve days in travel and fifteen days in residence. The payment for each day is unusually low and there is no mention of parliament. But Richard de Hayle and William le Rous, who were the knights of the shire for Middlesex and were described as coming to parliament at Westminster in 1324, received 12 marks to cover expenses of 24 days at 3s. 4d a day (King's Bench Roll, no. 262, m. 61d).

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XVII The King s Ministers in Parliament^ 1307-1327 II. THE PARLIAMENTS OF EDWAED II UR knowledge of the parliaments of Edward II is no less imperfect than our knowledge of the parliaments of Edward I. Of the early parliaments of the reign, those held before the crisis that led to the Ordinances, we know extremely little ; of the clerks and other ministers who took part in those parliaments we know virtually nothing. Since there is evidence that Gilbert of Rothbury had parliament rolls in his official custody in 1308,1310, and again in 1314,1 it seems probable, however, that he continued to act as clerk of the parliament during Edward II's early years. But there are indications that parliament was not functioning normally : in the Easter parliament of 1309 there was certainly some breach in the established formalities of appointing receivers of petitions,2 and after the appointment of the Ordainers there was a suspension of parliamentary business for nearly a year and a half.3 We begin to get some details of parliamentary procedure from 1312 onwards, although it cannot be said that we have really full knowledge of the procedure at a single parliament.4 Such information as we have been able to collect we set out below, dealing in turn with the clerks of the parliament, the receivers and auditors of petitions, and the council in parliament. In the Hilary parliament of 1315 Robert of Ashby, a senior clerk of the chancery, is found responsible for keeping a roll of parliamentary proceedings,5 and it is possible that he may have

O

2 Bulletin of the Institute of Historical Seseare/i, vi. 136 f. Rot. Parí. i. 444. Bulletin of the. Institute, of Historical Research, vi. 80 f. 4 We cannot agree that any one of Edward 1I's parliament, rolls is ' admirably full ' as Dr. Tout suggested (Place, of the Reign of Edward II, p. 185) : we have described them in the Bulletin of the Institute of Historical Research, vi. 151 ft. 6 Rot. Parí. i. 290 (no. 6) : ' idem Robertas ordinaoionem illam in rotulo suo de parliamento non insérait '. But noto that, if he had been a receiver of petitions only, he would have kept a roll. Thus it is said of his duties in the Hilary parliament of 1316 ' quod dominus Robertus de Askeby clericus eaneellarie . . . assignatus fuit ad peticiones et querclas liberalas in parliamento predicto reoipiendas, legendas, et irrotulandas ' (Exchequer, Parliament and Council Proceedings, roll 20). Hia position in chancery is indicated by his acting as keeper of the seal between 1315 and 1318 (Tout. Place of the Reign of Edward II, pp. 324-5). 1

8

THE KING'S MINISTERS

IN

XVII 195

succeeded to Bothbury's responsibilities.1 In the Hilary parliament of the following year, William Airmyn, also a senior clerk of the chancery, was specially appointed to draw up the record of certain of the proceedings,2 and since he was specially charged in the Michaelmas parliament of 1318 to ensure the due enrolment of the king's reply to the petition of the magnates for the confirmation of the treaty of Leake,3 and since also in the Easter parliament of 1322 he was clearly responsible for the appearance of elected representatives,4 it is probable that he was clerk of the parliament from 1316 onwards. The practice under Edward II appears to have been to employ four receivers of petitions in each parliament, two receivers for English petitions and two for Gascon petitions ; petitions relating to other dominions within the king's obedience were grouped, on no fixed scheme, with those from England or Gascony. We possess the names of all four receivers for only two parliaments, in 1316 and 1320. In the Hilary parliament of 1316 Robert of Ashby and Adam of Limber received the English petitions and master Edmund of London and master William of Maldon those of Gascony, Wales, Ireland, and Scotland:5 of these four, Adam of Limber had previously acted as receiver of petitions in 13126 and master William of Maldon (perhaps Robert of Ashby also) apparently in 1315.7 For the Michaelmas parliament of 1318 we are able to recover the name of one receiver only, Robert of Ashby.8 In the Michaelmas parliament of 1320 Adam of Limber and William of Harlaston received the English and the Welsh petitions and master Edmund of London and master Henry of Canterbury those of Gascony, Ireland, and the Channel Islands.9 1

Rothbury continued to be summoned to parliament among the justices until 1320 (Parí. Writs, ii. 220) ; but writs of summons give no indication of the specific duties in parliament of the justices and clerks receiving them. 2 Rot. Parí. i. 350; Parí. Writs, n. ii. 156. He is one of the keepers of the seal as early as 1311 (Tout, op. cit. p. 324). 3 4 Cole, Documents Illustn-tive of Knglish History, p. 12. Parí. Writs, ii. 252. 5 6 Rot. Purl. i. 350 ; Parí. Writs, n. ii. 156. Rot. Parí. i. 311 (no. 92). 7 Ibid. 290 (no. 6), 302 (no. 53). In both these entries it is said that a petition had been delivered (liberala) to master William of Maldon. The wording of the former entry suggests that Robert of Ashby was not only clerk of the parliament of Hilary 1315 but also a receiver of petitions. These two functions had been combined by Gilbert of Rothbury under Edward I and were to be combined on occasion under Edward III and Richard II. 8 Ancient Petition, no. 410fi : ' Et auxint feust ceste petición et lautre qi enaeust allouez au parlement a Euerwyk apres la seynt miohel lan duzisme et adossez par la mayn sire Robert de Askeby.' There is no mention of the names of receivers iu the mutilated rolls of this parliament. The names of several clerks to whom petitions were delivered are given (Cole, Documents Illustrative, of English History, pp. 13, 14, 16, 27, 28, 30 : cf. Cal. of Chancery Warranta, p. 495 (no. 4927) ). ' Deliver ', however, ia here apparently to be taken as referring to the stage after the petitions had been expedited in parliament : this is confirmed by the lists of expedited petitions to be found in Exchequer, Parliament and Council Proceedings (E, 175), 1/22, mm. 2, 3. ' Sot. Parí. i. 365.

XVII 196

PARLIAMENT, 1307-1327

The names of the receivers of English and Welsh petitions in the Midsummer parliament of 1321 are lost, but we know that Edmund of London and Henry of Canterbury received the petitions of Gascony, Ireland, and the Channel Islands.1 In all, therefore, we have the names of six receivers acting in six parliaments between 1312 and 1321. Of these Limber was a remembrancer and Maldon a chamberlain of the exchequer ;2 Canterbury was a royal clerk who seems to have had special responsibility for Gascon business ;3 Ashby, Harlaston, and London were senior chancery clerks, but the last named had been a household clerk under Edward I.4 It will be seen that the receivers of petitions under Edward II are of a type similar to those employed under Edward I. So far as we know, justices were not employed upon this work after 1305, but any four of the six men whose names have been preserved were sufficiently experienced and representative of the various branches of the administration to be able to give the petitions an adequate preliminary examination. Moreover, they were employed from parliament to parliament, and seem to have been occupied with similar categories of petitions at each parliament. Master Edmund of London deals with Gascon petitions in 1316, 1320, and 1321 ; Adam of Limber deals with English petitions in 1316 and 1320 and apparently also in 1312 ;5 Robert of Ashby deals with English petitions in 1316 and again (as it would seem) in 1318, as he had perhaps done previously in 1315 ; master Henry of Canterbury deals with Gascon petitions in 1320 and 1321. Master William of Maldon is perhaps an exception, since although in 1316 he is a receiver of Gascon, Welsh, Irish, and Scottish petitions, in 1315 he is mentioned in connexion with English petitions.6 1

Exchequer, Parliament Roll, no. 24, m. 1. Limber appointed 8 October 1311, previously king's clerk (Tout, Place, of the. Reign of Edward II, p. 348) ; Maldon appointed September 1315, previously king's clerk (ibid. p. 351). Maldon was a notary public : in 1312—13 he was engaged in composing ' quedara instrumenta publica ad mittendum ad parliamentum regis Francis ' (E. 101/375/8, f.9). * Cal. of Close Bolls, 1318-23, pp. 319 f. ; Col. of Pal. Rolls, 1321-4, p. 5; E. 101/375/8 (Wardrobe Account, 1312-13), fo. 11 b (journey to France and Gascony in February 1313 with master Richard of Burton) ; E. 101/376/7 (Wardrobe Account, 1315-16), fo. 12 (in November, December, and January, 1315-16, he goes on Gascon business to Clipston and York and then to the parliament at Lincoln) ; Add. MS. 9951 (Wardrobe Account, 1321-2), fo. 6 (journey to France with the bishop of Hereford and master Richard of Burton). He had been a household clerk under Edward I (Tout, Chapters in Mediaeval Administrative History, ii. 168, 171). 4 Liber Quotidianns Contrarotulatoris Garderobae, pp. 314, 327. In his earlier years he had been attached to Queen Eleanor's wardrobe (Add. MS. 35294, fos. 10, 15 b). By a slip Dr. Tout called him Edward (Chapters, ii. 24 ; cf. Cal. of Close Bolls, 12961302, p. 428). He was ' de consanguinitate sancti Thome ', hence doubtless his surname (Bot. Pari. i. 287). 6 Rot. Parí i. 311 (no. 92) is an English petition. 6 Arising out of the first an ordinance was promulgated amending the common 1

THE KING'S MINISTERS

IN

XVII 197

We possess the names of the auditors at f oui' only of Edward II's parliaments, those of Hilary 1316, Michaelmas 1318, Michaelmas 1320, and Midsummer 1321. In the first of these parliaments the auditors were divided into three panels, for England, for Gascony and the Channel Islands, and for Wales, Ireland, and Scotland.1 In the case of the English panel we find three official members, John de Lisle, a baron of the exchequer, Henry le Scrope, a justice of the common bench, and Robert of Barlby, a senior clerk of the chancery ;2 but these were outweighed by the bishops of Norwich, Chichester, and Salisbury and two barons, Edmund d'Eyncourt and Philip of Kyme. On the Gascon panel there were three bishops, Winchester, Exeter, and Bath and Wells, but the remaining five auditors were William Inge, justice of the common bench,3 and four clerks, all apparently connected with the household, master Thomas of Charlton, who was shortly to be keeper of the privy seal and controller of the wardrobe,4 master Henry of Canterbury (the receiver of 1320), master Richard of Plumstock, and master Roger of Rothwell : Plumstock, who was a doctor of civil law, seems, like Canterbury, to have specialized in Gascon affairs ;5 Rothwell is quite obscure.6 On the panel for Wales, Ireland, and Scotland, there was one baron, Ralf fitz William, together with six officials, master William of Birston, archdeacon of Gloucester,7 master John Walwayn, an escheator,8 master John Bush, a clerk with much experience of Scottish affairs, who had been both receiver and trier of petitions under Edward I,9 two other king's clerks, master Philip of Turville10 and master John de Lisie,11 and John of Mutford, a justice of assize, shortly to be law with regard to admission to bail (Kot. 1'arl. i. 290 (no. 6) ) ; the second concerned the barony of Bayeux (or Bayhus) (ibid. p. 302 (no. 53) ). Both, therefore, were presumably English petitions. I Rot. Parí. i. 350 ; Parí. Writs, u. ii. 15(i. a For these three, see Tout, Place of the Reign of Edward II, pp. 323 ff., 342, 371. s Tout, op. cit. p. 371. 4 Tout, op. cit. pp. 355, 357 ; cf. Chapters in Mediaeval Administrative History, ii. 239 n. 6 Gal. of Close Rolls, 1307-13, pp. 240, 288, 488 ; Cal. of Pat. Rolls, 1313-17, p. 203 ; Parí. Writs, n. ii. 42, 43 ; Davies, Baronial Opposition to Edward II, pp. 263, 260 ; E. 101/376/7 (Wardrobe Account, 1315-16), fo. 115 (journey to Curia at Avignon). ' If we are correct in our identification he was archdeacon of Bedford (Cal. of Papal Letters, ii. 85, 193, 205) and was granted letters of protection in September 1316 (Col. of Pat. Rolls, 1313—17, p. 549) ; but we have not discovered ¡n what capacity he served the king. 7 He departs a few months later on a mission to the pope (Fondera, n. i. 303 f., 313) ; for an earlier mention of him, see ibid. p. 140. 8 Tout, Place of the Reign of Edward II, p. 363. 8 Ante, xlvi. 545. He had attended the Hilary parliament of 1315 and had there demorez a nostre conseil ' (Chancery Warrants, 91/3364). 10 We have not traced the office held by Turville ; he was canon of Lichfield and held other benefices (Col. of Papal Letters, ii. Ill, 175, 182, &c.). II He cannot be the baron of the exchequer who served on the English panel ; perhaps he was the doctor of civil law mentioned in 1310 (ibid. p. 68).

XVII 198

PARLIAMENT, 1307-1327

appointed to the common bench.1 At the Michaelmas parliament of 1318 only two panels of auditors were appointed, one for England, Treland, and Wales, and another for Gascony.2 The former included three bishops, Winchester, Worcester, and Carlisle, three barons, Hugh Courtenay, William Martin, and John Botetourt, and five official members, Robert of Barlby and Henry of Cliff, chancery clerks,3 Gilbert of Tothby4 and Geoffrey le Scrope,6 serjeants-at-law, and Roger Beler, before long to be baron of the exchequer ;6 besides these, Walter of Norwich, chief baron of the exchequer,7 and Henry le Scrope, chief justice of the king's bench,8 might be called upon. The Gascon panel consisted of three bishops, Coventry, Exeter, and Bath and Wells ; but they might call upon master Richard of Burton to assist them. Burton was legwm professor and had been taken into the king's service from the court of Arches ; he was specially retained for Gascon business and was employed frequently on missions to the court of France.9 The auditors in 1320 and 1321 appear to have been exactly the same.10 They were elected according to a neatlybalanced scheme : there were two panels, one for England and Wales, the other for Gascony, Ireland, and the Channel Islands ; on each panel there were three bishops, one abbot, two barons, and five official members. We need mention the names only of the officials. On the English panel there were William Herle and John Stonor, both raised to the bench in October 1320,11 and Geoffrey le Scrope, still a serjeant-at-law, with Robert of Barlby and master Henry of Cliff, both senior chancery clerks. On the Gascon panel there were Guy Ferre, who had been seneschal of Gascony and had since visited there on temporary missions,12 master Jordan Moraunt, who had been constable of Bordeaux and the seneschal's lieutenant,13 master Richard of Burton, whose knowledge of Gascon affairs we have already touched upon, with Walter of Friskney, a baron of the exchequer,14 who had been, and Gilbert of Tothby who still was, a serjeant-at-law. a Tout, op. cit. p. 372. Cole, Documents Illustrative of English History, p. 13. 6 Tout, op. cit. pp. 323 ff. * Foss, Judges, iii. 531. Ibid. p. 493 ft. 6 Tout, Place of the Reign of Edward II, p. 343. He appears among the official members of the council in the Michaelmas parliament of 1318 (Cole, Documents Illustrative of English History, p. 12). This makes it difficult to identify him with the ' apostate Lancastrian knight ' (Tout, op. cit. pp. 160, 200) who received a pardon in 1318 (Parí. Writs, ii. ii. app. 126, 132). 7 8 Tout, Place of the Reign of Edward II, p. 341. Ibid. p. 373. ' Col. of Close Rolls, 1307-13, p. 567 ; 1313-18, pp. 304, 553 ; Cal. of Pat. Bolls, 1313-17, p. 128; Parí. Writs, n. ii. 124; Foedera, ii. 311, 360, 365, 371 ff., 395, 417,435 ; E. 101/375/8 (Wardrobe Account, 1312-13), fos. 11 b, 16,17 b ; K 101/376/7 (Wardrobe Account, 1315-16), fo. 13. 10 Rot. Parí. i. 365 ; Exchequer Parliament Roll, no. 24, m. 1. 11 Tout, Place of the Reign of Edward II, p. 372. " Ibid. pp. 222, 394 ; Lubimenko, Jean de Bretagne, pp. 81, 102 ; Foedera, ii. 37, 113, 120 ff., 127, 134, 174 f., 187, 190. 13 Tout, op. cit. pp. 394, 397. " Ibid. p. 343. 1

8

THE KING'S MINISTERS IN

XVII 199

It seems fair to deduce that in choosing auditors the practice followed under Edward I was continued of calling upon trained lawyers and administrators; but there is a much greater admixture of magnates. The unofficial comes finally to outweigh the official element ; and although we must suppose that, in matters of law and where political and personal considerations were absent, expert opinion prevailed, there can be no question that the presence of the magnates is deliberately designed to restrict the authority of the official class. Our information comes from the years between the Ordinances and 1322, the period when the baronage were seeking to control the administration. We guess, but the evidence from 1316 seems to warrant us in guessing, that in the earliest parliaments of Edward II the precedents of his father's reign were followed, since the official element, except on the English panel, is in that year very strong ; thereafter it is outweighed by the baronial element. We shall see, when we come to discuss the reign of Edward III, that the new precedents set up under Edward II were followed ; this suggests that even after the Ordinances had been repealed in 1322, there was no reversion to the older order : the official class did not recover the predominance that had been theirs under Edward I. We turn now to the position and composition of the council in the parliaments of Edward II. In reading such records as have come down to us, we cannot fail to be struck by the place now occupied in parliament by the magnum consilium. These words are used to describe a body which is different from the council tout court. It is without doubt true that the council is legally one, whatever its composition, for its decisions cannot be distinguished from those of the king j1 but similar conventions are to be found everywhere and are the commonplace of legal procedure.2 The difference, however, between the council and the great council was frequently of serious practical importance. A parliamentary petition was, as a matter of common form, addressed to the king and council,3 and the reply, unless the petition went to the king himself, was conventionally supposed to be the reply of the council. Apart from those that were rejected Of. Baldwin, The King's Council, pp. 106 fi. It will be seen, however, that our views differ materially from his. 3 All letters and every writ sent under the king's authority and sealed with his seal are prima facie acts of the king himself. In France all judgements of the parliament are drawn up in the king's name and bear the royal seal (cf. Aubert, Histoire du Parlement de Paris, ii. 135). 3 Exceptions are occasionally found : e.g. Rot. Parí. i. 339 (no. 7), addressed to the chancellor ; ibid. p. 463 (no. 15), addressed to the treasurer, (no. 20) addressed to the treasurer and council ; ibid. ii. 72 (no. 7), and p. 438 (no. 73), addressed to the queen ; ibid. ii. 73 (no. 3), addressed to the chancellor. Other petitions addressed to the treasurer (ibid. i. 277 (no. 25)) and to the chancellor (ibid. p. 437 (no. 25)) may not be parliamentary. 1

XVII 200

PARLIAMENT, 1307-1327

or diverted by the receivers, the bulk of the petitions were undoubtedly disposed of by the auditors who, in fact, both heard and determined those petitions whose expedition, in their judgement, required no further counsel.1 Nevertheless, in the words used early in Edward II's reign, the petitions were ' délivres par son conseil, aussi come estre soleient en temps son pere'.2 If the auditors felt unequal to disposing of a petition, they referred it to a higher tribunal, almost invariably with a suggested form of reply.3 If there were some question of the king's personal interest, the matter would be mentioned to him or to some body that could decide on his behalf.4 Questions of importance, however, were referred to a tribunal which under Edward II becomes known as the ' great council '.5 Upon questions which went to the great council the king also might require to be personally consulted,6 for he does not necessarily sit with the great council in parliament ; more often than not he seems to sit apart, advised perhaps This is shown by the two sections of Exchequer Parliament Roll, no. 18 (Bull. Inst. Hist. Research, vi. 151). See also following notes. 3 Sot. Parí. i. 444 (from Close Roll, 3 Edward II). 3 See, however, ibid, i. 305 (nos. 69, 70), 306 (no. 71), where apparently no reply was suggested by the auditors of Hilary 1318. Again, nothing ia said of any suggested reply when Walter Langton petitions the king in the Michaelmas parliament of 1318 (Cole, Documents Illustrative of English History, pp. 4f., 17 f.). But such instances are infrequent. 4 An excellent example is furnished by two documents among the Chancery Warrants (136/79 and 80). The latter is a petition endorsed ' videtur consilio quod concedendum est si placeat régi . . .' ; the former, which sends the petition to the chancellor, refers to ' ascunes req uestes . . . les queles nous auoma octreiee solonc lendossement de la dite bille fait par les auditeurs des billes en dit parlement '. This petition belongs to the Candlemas parliament of 1327, but it may be taken as representative of the procedure under Edward II. A reference to the king accounts for the frequent endorsement ' coram rege ' to bo found on petitions ; e.g. Bot. Pari. i. 420 (no. 15), 421 (nos. 16-18), 436 (no. 23), 437 (nos. 27, 29), 438 (no. 33), 439 (nos. 36, 38), 440 (no. 42) ; and see especially the endorsements on Ancient Petition, no. 4299 (printed Oxford Historical Society, Collectanea, iii. 116 (no. 53)) and on Chancery Misoellanea 22/12 (48) (printed P.R.O., List of Diplomatic Documents, p. 213). 6 The term was in use at the beginning of 1315, as is shown by Exchequer Parliament Roll, no. 18 (Rot. Parí. i. 287 ff.). In the same year the bishop of Exeter remarks : ' Et non videtur quod fuerit in potestate illorum qui reapondeant ad peticiones, inconsulto rege vel magno consilio, huiusmodi breue preiudiciale et insolitum precipere et ordinare ' (Exchequer, Parliament and Council Proceedings (E. 175), 2/4). It would seem that the term was a familiar one in 1314 : see p. 201, n. 2, infra. For later references see Rot. Parí. i. 336 (no. 3), 419 (no. 12), 420 (no. 14) : these instances could be multiplied from 1327 onwarda. 6 Hence the endorsement ' coram rege et magno consilio ' instead of merely ' coram magno consilio ' : e.g. Rot. Parí. i. 420 (no. 14) ; Oxford Historical Society, Collectanea, Iii. 117 (no. 55). We should perhaps note that this endorsement is not invariably used when this procedure is followed ; for example, a petition in the Candlemas parliament of 1324 is endorsed : ' Veniat inquisicio coram consilio ' and then, when the relevant inquest has been considered, ' coram rege ', with the note ' II semble au conseil sil piest au roi qe la pescherie ly deit estre deliurez ' ; since the petitioner subsequently states that the inquest was ' al dreyn parlement lyure deuant vostre consayl ' and that he was ' asygne par le counsayl de siwre a vous meymes lyge seynur ', we must probably assume that the petition went to a higher tribunal than the auditors (Chancery Warrants 127/6912 ; 6909 ; cf. Cal. of Chancery Warrants, i. 556). 1

THE KING'S MINISTERS IN

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by the more intimate counsellors who are permanently at his service.1 It is quite clear that the great council is great as opposed to the smaller, largely official, council whose services the king has always at his command.2 It includes the magnates ; but the great council can still transact business, although many of its influential members may be absent and although for this reason business of especial importance may have to be adjourned.3 The business of the great council does not arise solely from petitions : the king and his ministers may themselves often have other questions, particularly those concerning foreign relations, which they wish to bring before it.4 It is difficult indeed to distinguish between the great council in parliament and the prelates, earls, and barons in open parliament :5 we suspect that the difference is no more than that between transacting business in camera and in public. 1 It is evident that in the Hilary parliament of 1315 the king, at least on occasion, has to be consulted apart (Rot. Parí. i. 295 (no. 29), 297 (no. 34)). Nor is he necessarily present with the magnates ' in pleno parliamento ', as when Walter Langton's petition is read in the parliament of Michaelmas 1318 and then ordered to be taken ' ad ipsum regem ' (Cole, Documents Illustrative of English History, pp. 4 f., 17 f.). a The most convincing proof is furnished by a memorandum concerning Gascon affairs, apparently drawn up by Richard of Burton (Exchequer, Parliament and Council Proceedings (E. 175), 2/5). This relates how certain of the council at Westminster on the Morrow of All Saints 1314 were considering what had happened in the last parliament of Paris, whereupon ' quampluribus de consilio videbatur quod huiusniodi grauamina in parliamento et coram magno consilio tractari deberent et per maiores et discretiores, quia negooium videtur esse de maioribus '. Later Burton endeavours to get the archbishop and the chancellor to take action, but they ' dixerunt et responderunt quod quia huiusmodi negocia sunt ardua in presencia comitum deberé (sic) tractari '. The memorandum continues ' et ideo timoré offense eorum cepit negocium dilacionem '. The earls in fact do not appear until the eve of the Purification (1 February), parliament having been summoned for 20 January. 9 Although fifteen membranes of Exchequer Parliament Koll, no. 18, are filled with proceedings before the great council in the Hilary parliament of 1313, it is quite clear that during at least part of the session there was nothing like a full attendance of the principal magnates. Two matters have to be put on : one (Rot. Parí. i. 305 (no. 70)) because lands taken into the king's hands cannot be regranted ' sine communi assensu magnatum in parliamento, nee sunt hie ad presens tot quot requirentur ' ; the other (ibid. p. 306 (no. 71)) ' pur ceo qe plusurs de grant seignurs, prelatz et autres ne sont pas a ore a cest parlement et eux qi cy sont ne voillent empreñare de iuger chose qi touche le tretiz sanz assent de toutz '. See also preceding noto. 4 We have already seen how the council referred difficult questions regarding proceedings in the parliament of Paris to the great council in the Hilary parliament of 1315. We read of the ' examinatores negociorum Vasconie ' in the Lincoln parliament of Hilary 1316, whose business must have been to prepare a report for the great council (Chancery Miscellanea, 29/8/19). In the parliament of Hilary 1315 justices of oyer and terminer are appointed ' per magnum consilium ' (Rot. Parí. i. 325 (no. 178)), and in the parliament of Michaelmas 1318 the assent of the king and the other grantz du counseil is given to various grants by the crown (Cole, Documents Illustrative of English History, p. 10). 5 The case of Walter Langton in the parliament of Mio.haelmas 1318 affords an example of the transfer of proceedings, which are initiated ' coram prelatis, comitibus et baronibus in pleno parliamento ', to the council where the king himself and certain prelates, earls, barons, and others are present (ibid. pp. 4 f., 17 f.).

XVII 202

PARLIAMENT, 1307-1327

However that may be, there was still business in parliament for a smaller council or for committees of council to perform. Thus during the Westminster parliament of Hilary 1315 the council sits apart at Blackfriars to hear a petition from the abbot and monks of Rufford. On this occasion the council consists of the archbishop of Canterbury, the earls of Hereford and Warwick, Bartholomew Badlesmere, the chancellor, the treasurer, and masters John Walwayn, Richard of Burton, Adam of Osgodby, Robert of Barlby, and William Airmyn, with possibly some others of lesser rank who are unnamed.1 Clearly this body is predominantly official in character. Of Burton, Barlby, and Airmyn we have already spoken. Osgodby was a senior clerk of the chancery,2 and Walwayn became escheator during the session of parliament.3 On one occasion when we find a committee of council that is not predominantly official, the reason is clear : the point at issue is one of ecclesiastical discipline. This is in the Michaelmas parliament of 1320, when the disputes between the abbot and monks of Abingdon are investigated: the committee which undertakes this task is composed of four bishops, including the chancellor, two abbots, two magnates, the chief baron of the exchequer, the chief justice of either bench, and the official of the court of Canterbury.4 Upon other occasions the council undoubtedly consists entirely of ministers, as when, in this same parliament, a dispute between the abbot of Ramsey and the bishop of Ely regarding fairs at St. Ivés and Ely is referred to the chancellor, the treasurer, the chief baron of the exchequer, and the chief justice of either bench ;B and, again, a petition of the magnates on the subject of scutage is examined by the treasurer and barons of the exchequer, the justices and others of the council, and the reply then ' expósita per consilium regis ' to the petitioners.8 Nor can there be any doubt that the council which had dealt with the same question of scutage, when it had previously been brought forward in the Hilary parliament of 1315, had been similar in composition.' In the Michaelmas parliament of 1318 a petition of the bishop of Ely claiming the franchises of his predecessors is referred to the justices, the serjeants-at-law, and two senior clerks of the chancery ; after this committee has reported, the king gives his decision ' by the assent and judgement of the magnates and others of his council '.8 Sot. Parí. i. 298 (no. 38). 3 Tout, Place of the Reign of Edward II, pp. 324, 329. Ibid. p. 363. 4 Bot. Pari. i. 367. " Exchequer Parliament Roll, no. 23, m. 5 d. 8 7' Ibid. p. 292. Rot. Parí. i. 383 f. 8 Brit. Mus., Add. MS. 41612, fo. 53 : this is a cartulary of Ely priory containing a transcript of an entry now missing from Exchequer Parliament Kou, no. 21 ; see Bull. Irut. Hist. Research, vi. 152. The two chancery clerks are to be ' des sages e plus auisez de la chauncellrie '. Note the instruction to the committee that they ' s'auisent... et leur auisement de ceo reportent au roi '. For the use of reporter in this sense, see ante, xlvi. 542, n. 2. 1

a

THE KINGS MINISTERS

XVII 203

Stated briefly, the development we witness in the reign of Edward II is the gradual superimposition upon the traditions and practice of the reign of Edward I of a new tradition and practice. There is a feudal reaction in politics which leaves a mark nowhere so plain as in parliament, which nowhere else has results so permanent. With the expert official is associated the magnate. Parliament does not become all at once less of a judicial tribunal, and for technical work the experienced and trained official is still available and is still called upon. But the growing tendency to thrust the official element into the background cannot fail to modify the character of parliament. The change is worked out under Edward III and with it brings the possibility of further changes.

NOTES Page 194, n.l n.3 n.4 195, n.2

Below, XIX. 136f. Above, XVI. 80f. Below, XIX. 151ff. For the activity of William Airmyn see Ancient Petition, no. E.504: presented early in 1307 it is endorsed 'Per testificacionem Principis. Littera Principis liberator Willelmo de Ayremyngge pro warrante suo de cancellaria et irrotulatur in rotulis parliamenti'; no. 1370: presented c. 1317, it is endorsed 'Domino Willelmo de Ermyne per fratrem Lucam de Wodeforde', and minuted on the recto 'Ista peticio est exaudita de volúntate domini regis' (for a similar endorsement see no. 13983); no. 2386: a petition presented c. 1318 is endorsed 'Quia negocium istud tangit Flandrenses tradatur domino Willelmo de Ayrem', qui se de negocio Flandrensium intromittit'; King's Bench Roll, no. 262, m. 29, crown: a record, sent before the council, was brought from the council to the king's bench by William Airmyn at Michaelmas 1325. n.6 For the activities of Adam Limber see Ancient Petitions, nos. 149-162: endorsed 'Irr'. Lymbergh". Corara rege'; nos. 4054, 4276: endorsed 'Coram rege. Lymbergh' '; no. 4354: endorsed 'Responsa coram rege et consiüo suo. Coram rege. Lymbergh' '; nos. 4355, 4356: endorsed 'Coram rege. Lymbergh'. Irr". Limber was at the Michaelmas parliament of 1318 (Davies, Baronial Opposition, p. 262) and the Easter parliament of 1319 (Cal. Close Rolls, 1318-1323, p. 74) and may have been a receiver of petitions in 1318 (Richardson and Sayles, Rot. Parí. Anglic Hactenus Ined., p. 73). n.7 For the activities of Robert Ashby see Ancient Petition, no. E.712, which is endorsed: 'Mittatur ista peticio Roberto de Askeby' qui fuit intendens recepcioni billarum et peticionum porrectarum in parliamento Lincoln' (1316), de quo peticio ista facit mencionan, quod informet se super isto

XVII 204

196, 197, 198, 200,

negocio, et si processus inde residet penes ilium, tune processum ilium cum hac peticione remittat in presentí parliamento (Michaelmas 1318). Postea remissa peticione cum isto processu responsum est eidem ut patet inferius. Quia dominus rex ad finalem discussionem negocii infra content! absque maiori deliberacione et avisamento commode procederé non potest, continuatur istud negocium in statu quo nunc est usque ad proximum parliamentum et predictus Hugo (sc. Courteney) super hoc adionatur ibidem' (i.e. Easter 1319). See also below, p. 195, n. 8. n.8 It should be added that Ancient Petition, no. 4106, is minuted 'Dominus Willelmus de Herlaston' vidit alias paticiones prius responsas, et responsum in eisdem indorsatum de manu domini Roberti de Askeby predicto modo'. For the reference in the last line see below, XIX. 154f. n.9 For the activities of William Harlaston see Ancient Petitions, nos. 189, 192, 3015: endorsed 'Irr'. Coram rege. Herí"; E.305: minuted 'Herlaston' (cf. 13122 A); 2102, 2158: endorsed 'Herlaston'. Irr"; 2160: endorsed 'Coram rege. Herlaston' '; 7089: endorsed 'Coram magno consilio. Herlaston"; 7100: endorsed 'Coram rege. Herlaston'. Coram rege et consilio. Expedite. Herlaston"(c.l322); 3926: endorsed 'Remanet ilia peticio in custodia W. de Herlaston"; Chancery, Parí, and Council Procs., 5/4: 'Peticiones W. de Herlaston de parüamento regis apud Westmonasterium in octabis sancti Michaelis anno quartodecimo, quibus responsum erat per auditores peticionum, liberate in cancellaria ad expediendum'; Chancery Misc. Inquisitions 92/23: a council petition endorsed: 'Quia peticio extracta de filaciis casualiter amissa fuit, ista peticio innóvala fuit per rotulum W. de Herlaston', sicut ipse recognoscit' (1324). See also Rot. Parí. 1. 437a. n.l Printed Richardson and Sayles, op. cit., p. 92f. n.9 Throughout for ante read Eng. Hist. Rev. Above, VI. 545; Cal. Chancery Warrants, i. 418. no. 10 Above, p. 196, no. 1. n.l Below, XIX. 151. See Ancient Petition, no. 3840: the proctor of the bishop of Lincoln 'bota peticioun en ceste parlement (1325), qele est pendaunt unkore devant les auditeurs de peticiouns ... come eux sevent. Et duraunte la dependaunce de la dite peticioun devant eux', the bishop, whilst away on the king's business, was ousted from his prebend of Leighton. n.2 See also Rot. Parí., i. 296Z>: a petition was answered by the auditors and their reply was then read before the council and confirmed by it (and ibid., p. 306¿>). n.4 See Ancient Petition, no. E.821: the justices had refused to proceed when they were informed that the king's interests were involved and the consequent petition was endorsed: 'Legatur coram pleno consilio' (c. 1312). See also Chancery, Parí, and Council Procs., 45/8, m. 6, which is endorsed: 'Monsire lohan Buteturte dit devant le roi en parlement qe...' n.5 Ancient Petition, no. 2062: petition of the bishop of St. David's for permission to found a chantry (which can be

XVII 205

dated 1313: Cal. Patent Rolls, 1307-1313, p. 563, 25 March 1313), is endorsed: 'Coram rege et magno consilio. Y piest au roi pur fyn. Veniat coram concellario et thesaurario et faciat finem'; no. 7089: endorsed: 'Coram magno consilio. Herlaston". n.6 Ancient Petition, no. 4049 is endorsed: 'Coram rege tantum quia mere gracie est'; no. 13387 is endorsed: 'Coram domino rege quia de gracia, non de iure'; no. 216 is endorsed: Videtur consilio quod est faciendum set tamen coram rege (Rot. Pari., i. 393a, no. 34). 201, n.2 Cf. Ancient Correspondence, XLIX, no. 23: a meeting of the 'privy council' to discuss the agenda for the approaching parliament of 1313; ibid., XL. no. 106: a council taking place before parliament (c. 1361); Ancient Petition, no. 4051: ... par quei fu donqes respondu et ordene qe ceste petición fust mise devant le roi et son prive conseil au proschein parlement (Sayles, King's Bench, i, pi cxlv). 202, n. 8 Rotuli Parliamentorum Anglie Hactenus Inediti, 87-91.

XVIII The parliament of Lincoln, 1316. THE two letters printed below come from the unsorted miscellanea of the exchequer : they belong to the large class termed exchequer Bille, i.e. files which contained, among other subsidiary matter, formal bills or petitions and the semi-official correspondence of the treasurer and barons of the exchequer. The first letter was written by Walter of Norwich, the treasurer, while attending the parliament at Lincoln of Hilary ijio, 1 and is addressed to Harvey of Stanton and the other barons of the exchequer who had remained in London. All the barons—Stanton, John of Foxley, John Abel, John Delisle, and John of Hotham, chancellor of the exchequer—had received writs of summons,2 but it is clear that, though John Delisle had gone,3 Stanton and at least two of his colleagues had been detained by the business of their department. This is a discovery of some importance, for it puts us on our guard against assuming that the ministers summoned to parliament were necessarily to be found there, especially when it was held away from the place where the exchequer and the common bench were established. Of the events of this parliament and of the part played by the earl of Lancaster, a good deal is known and much has been written. Exchequer parliament roll no. 20 makes it plain that the earl had not arrived by 8 February but that he was present in pleno parliament on the I2th. 4 This letter shows us that he had arrived by the loth, and the inference is that two days were spent in private negotiations before the public session of parliament was resumed. It shows, too, that the earl was accompanied by others besides those summoned to the parliament, and that one of his attendants was William Trussel, already well known as one of the earl's supporters, whom we are now able to identify with certainty with the sheriff of Warwick and Leicester. He had sat in the York parliament of September 1314 as knight of the shire for Leicester,5 but 1

There was no other parliament at Lincoln during his term of office. Reports touchingthe Dignity of a Peer, Parí. Papers H.L. 119 (1829), iii. 254 ; Palgrave, Parliamentary Writs, \\. 154. 8 6 Rot. Parí., i. 350. « Ibid. Return ofM.P.'s, i. 46. 2

XVIII 106

The Parliament of Lincoln, 1316

on 20 November following had been appointed sheriff 1 and was not subsequently elected to any parliament, although he was in attendance on the earl of Lancaster at the Easter parliament of 1319 2 and played a prominent part in several parliaments of the following reign.3 The second letter was probably written a few weeks before the first, in anticipation of the meeting of parliament.4 The writer, Richard Lovel, is described elsewhere as the king's bachelor,5 and he evidently expected to meet the treasurer at Lincoln.6 He was unable to be present personally at the exchequer to render his account, and had already arranged with Norwich that he might be represented by his attorney. His account was a little complicated and possibly unsatisfactory, and he reminded Norwich of his promise to make things as easy as possible. What he wanted was that the balance due from him to the king should be determined before the treasurer left London, and then respited, so that he could talk it over with him when they met at the parliament. In any case he would, God willing, pay an instalment of his debt at Easter. In itself this letter is a trifle. It is interesting, however, as a specimen both of the semi-official correspondence to be found among the exchequer Bille and of letters which survive in various places in fair number and which show that at this period parliament was the occasion when people of consequence expected to meet and transact confidential and personal business—an aspect of parliament that is not without its importance.

Cal. Fine Rolls, 1307-19, p. 221 : the appointment seems actually to have been as ' custos.' He was superseded by 11 November 1316. 3 He witnesses with the earl of Lancaster and others a deed of Richard Level's which is ' Datum apud Eboracum die louis in octabis Ascensionis Domini anno regni regis Edwardi duodecimo tempore parliamento [sic] ibidem tentó' : Coram Rege plea roll, Easter 12 Edw. II (K.B. 27/236), m. 104. The abstract in Placitorum Abbrevialio, p. 334, is inaccurate. 3 BULLETIN, xi. 151. 4 The parliament to which reference is made was evidently held away from London ; but it could not have been that at York in September 1314, for Walter of Norwich was not appointed treasurer until 26 September. That of Lincoln at Hilary 1316, therefore, is alone possible, since the only other parliament held during Norwich's term of office was in London in January 1315. 8 Cal. Chancery Warrants, i. 394, 468, 471. ' We know that he attended the York parliament of Easter 1319, presumably as a member of the royal household : see note 3 above. 1

The Parliament of Lincoln, 1316

XVIII 107

(Exchequer Miscellanea, King's Remembrancer, Bundle 3.) I. A ses chiers compaignons sire Heruy de Estanton' et les autres Barons de Leschekier nostre seignur le roi, Wauter de Norwicz salutz come a li meismes. Mes chiers compaignons, pur ce qe monsire William Trussel visconte de Warr' et de Leyc' est entendant a mon seignur le conte de Lancastre, qi est ia venuz a cesti parlement de Nicole, et par celé encheison il ne poet personaument estre a Westmoustier a deuant vous a ceste quinzeirte de la Chandelour pur son acompte rendre de sa dite baillie, si vous pri, sires, qe en lieu du dit monsire William receuez William le Fauconer son attorne a la dite acompte rendre, le quel iai receu a ceo faire quantaores, et gracieusement et, au plus en haste qe vous porrez, faites deliuerer ceje acompte pur amour de moy. Et si deyue rien sur celé acompte, adonice vous en soeffrez de cel la tanque a ma venue. A Dieu, sires, soiez. Escrites a Nicole le x. iour de Feuerer. II. A son treischier amy munsire Wauter de Nortwich, Tressorrer nostre seignur le roy, Richard Louel honurs et reuerhences.1 Chier sire, vos pri, sil vos pleist, qe voillet eispecialmentes kemaunder qe les busoignes qe me touchent scient eispletes atiâunt vostre aler au parlement, e del aconte de la terre des templers 2 e des dettes qe ieo dei au roy e le roy a moy,3 dont vos receutes Renaud de Frome mon atorne la vostre grand mercy, e qe me voillet eistre eidaunt, gracious e fauorable en les busoignes auaundites allower par reson [auxi comme me auet promis],4 e qe voillet respiter me de la dette dount ieo serrai troue en arrérage deuers nostre seignur le roy, si la qe ieo eye a vos parle5 au parlement, qe mon atorne [ne] 4seit de coe chalange, mes qil puisse venir a mey de me certefier en comben ieo serrai en la dette le roy, dount ieo me deliuray e frai la part a la Pasch' si Deu pleit saunz delay. Taunt voillet fere, chier sire, pur lamour de moy, dount vos sei tenut a bon gré sauer. A Deu, chier sire, qe vous gard. z MS. sic. Cf. Cal. Fine Rolls, 1307-19, p. 109. Cf. Cal. Pat, Rolls, 1313-17, pp. 161-2 ; Cal. Close Rolls, 1313-18, p. 254. 6 * Interlined. Rend parler. 1

3

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XIX THE EARLY RECORDS OF THE ENGLISH PARLIAMENTS The Exchequer Parliament Rolls and Other Documents

' THE Rolls of Parliament,' said Stubbs, ' preserve a detailed journal of the proceedings, from which both the mode and the matter of business can be elucidated.'1 He was speaking with reference to the fourteenth century generally and not with specific reference to the reign of Edward I or Edward II, and we quote him because it is well to state at the outset that the early records of parliament had very little in common with these ideal rolls. At first sight the actual records are, in Dr. Tout's words, ' an unsystematic putting together of odds and ends, eked out by a varying number of petitions of very unequal importance.' But Dr. Tout believes that the roll of the parliament of Lincoln of 1316 marks a new departure : it gives us, he says, ' in the form of short dated minutes, a record of parliamentary proceedings, day by day, and so enables us to get an intelligible idea of what the estates actually did '2—in fact, something colourably like the ' journal of the proceedings ' of Stubbs' ideal. Now, unless we have hopelessly misread the very considerable mass of documents upon which our preceding articles have been based, it seems obvious that a journal of the proceedings of the ' estates ' is really the very last thing that the clerks attending the parliaments of the first two Edwards would trouble to make. To object that from a large proportion of parliaments the ' estates ', or at least considerable sections of them, were absent is not a quibble, because clearly, if their presence were some kind of criterion of the validity of a parliament, we might legitimately expect a ' journal ' in respect of one kind of parliament attended by the ' estates ' and records of a different sort for other kinds of parliaments, ' the terminal sessions for judicial business ' as Stubbs described 1

Constitutional History (4th. edn.), ii. 322.

2

Tout, Place of the Reign of Edward II, p. 185.

XIX 130

The Exchequer Parliament Rolls

certain of them,1 or ' baronial parliaments ' as Dr. Tout prefers to distinguish others.2 But since we have, as we hope, demonstrated that these distinctions have no sure foundation, so far at least as the competence or authority of any parliament was concerned, it is reasonable to assume that the ordering of business and the work of record-making were very much the same at any parliament between 1275 and 1327. It will be remembered that the Modus Tenendi Parliamentum explains that three classes of business are entered in the kakndarium parliamenti : firstly, questions of war and business touching the persons of the king, the queen and their children ; secondly, public business such as new legislation, although this should be discussed after judgements which are of especial public importance have been delivered ; lastly, private business according to the order in which petitions have been received.3 And in the preceding section of the Modus it has been stated that any dispute, doubt or difficult case touching peace or war, and arising within the kingdom or without, is to be set down in writing that it may be declared in parliament.4 Now we do not claim the Modus as an unimpeachable authority on procedure under the first two Edwards, but we think these statements give some inkling of what actually took place. We think that a good many memoranda and transcripts were prepared for parliament before it met and that with such documents as these, and with notes of other business before them, some responsible people set about making a calendar. Let us warrant the instructions given in 1316 to the chancellor, the treasurer and the justices of the two benches to put into writing and to present in parliament those cases pending in their courts which cannot be determined except in parliament,5 and again the letter written by Edward II to the earl of Lincoln, his lieutenant in London, in November 1309 when he is making preparations for a parliament after Candlemas following : ' Have everything arranged before you and have the calendar (arraf) of our parliament put into writing in such fashion that it will not be necessary for us to stay there and hold parliament beyond ten days or twelve at the most.' 6 Similar instructions were given by the king in 1311.7 So far, then, the Modus is justified from Stubbs, Select Charters (8th. edn.), pp. 449, 482 ; cf. Constitutional History, ii. 236, 274. Tout, of. cit., pp. 87, 120, 134. Stubbs occasionally used the phrase: e.g. Constitutional History, ii. 259. 3 Mo¿us Tenendi Parliamentum (ed. Hard/), p. 23. * Ibid. p. 17. 8 Parí. Writs, II. ii. 156; Rot. Parí. i. 350 : from Exch. Parí. Roll, no. 20, m. i. For an actual example of the memoranda prepared in accordance with such instructions, see the negotia adiornata from the exchequer to the Hilary parliament of 1307, entered on the single membrane of Exch. Parí. Roll, no. 16 (Rot. Parí. i. 216). 6 J. C. Davies, Baronial Opposition to Edward II, p. 549, no. 7. 7 Cal. Chancery Warrants (1244-1326), p. 368, no. 2138. 1 2

and Other Documents

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record sources. And when it says that the two principal clerks of parliament enrol in the principal roll of parliament all pleas and all judgements and says no word of any other kind of enrolment, except of licences granted to depart before the end of parliament,1 it leads us to suppose that, in the earlier fourteenth century at any rate, pleas and judgements and matter of this kind were what people expected to find on a parliament roll and that no one attached great importance to anything else.2 From the standpoint of one who is looking for ajournai of the proceedings, an early parliament roll, made up as the Modus suggests it was made up, could hardly fail to be—like the rolls of any court of law—a putting together of odds and ends. But even after one has abandoned any notion of a journal, the early rolls have a curious unsystematic look about them, and we venture to suggest that this is because—paradoxical as it may seem—no such thing as an early parliament roll, in the sense in which the term is normally understood, really exists or has ever existed. Let us ask what men who lived under Edward I and Edward II meant by a ' roll.' Certainly at that time nothing more need be meant than a single membrane. The alius rotulus, with which we become familiar in reading plea rolls and similar records, as a rule simply means another, usually the adjacent, membrane.3 In like manner, when, in 1284, the writing of what we call the pipe rolls is being reformed, there is talk of the rotuli annales and separate rolls for the corpora comitatuum and for the desperate debts, each rotulus anna/is or other roll being a single continuous sheet of parchment, which in modern times has been called a ' rotulet.' 4 When, therefore, we find references to rotuli parliameniorum at this time, we are not necessarily to conceive of a series of Mo Jus Tenendi Parliament!, pp. 15, 45. On p. 13 it is said that the clerks shall enrol omnia placita et negotia Parliament!, but we have no further explanation of negotia except judgements and licences. Doubtless the word might cover decisions regarding taxation and legislation, but these things occupied a comparatively small part of the attention of parliament. The dubitationes et responsiones written by the five secondary clerks (p. 17) cannot be included among the ttegotia. 3 For a good example, see Exch. Parí. Roll, no. 20, mm. 1-3 (Roí. Parí. i. 350 ff. ; English Historical Review, xxxvi. 5 5 f. ; below, p. 151). See also the marginal note at p. 46 of Cole's Documents Illustrative of English History : ' sicut alibi continetur in hiis rotulis.' A vacated entry on m. 2Od of Exch. Parí. Roll, no. 18, has this marginal note : ' vacat quia in alio rotulo ' ; this entry, which is unprinted, corresponds to Rot. Parí. i. 329, no. 204 (i. e. m. 22). The ' alius rotulus parleamenti ' of the memoranda of Easter 1279 is clearly m. 2 (Trans. R. Hist. Soc. (4th. Series), x. 52). 4 Statutes of tie Realm, \. 69. Cf. Dialogas de Scaccario (éd. 1902), p. 79 : ' prenotantur in summo rotuli comitatus et baillie de quibus infra compotus redditur.' Elsewhere rotulus is used in the modern sense of a file of several membranes. For ' rotulet' see Introduction to the Study of the Pipe Rolls, p. 44, and other publications of the Pipe Roll Society ; also Hunter's Introduction to Great Rolls of the Pipe, 1155-8. Such ' rotulets ' usually consist of two membranes attached end to end, but single membranes may be found. 1 2

XIX 132

The Exchequer Parliament Rolls

fairly bulky rolls such as Exchequer Parliament Roll no. 12, in its present shape—' one of the earliest, amplest and most complete of the ancient rolls of parliament.'1 No more may be meant than a number of membranes, some separately rolled up, others, in collections of a few membranes relating to the same business, strung together by the heads or (exceptionally as we think) stitched end to end ' chancery fashion.' Indeed, it seems that Parliament Roll no. 12, was formed by assembling several such single membranes or collections of membranes. When rediscovered, nearly a hundred years ago, it was not found altogether nor at one time but ' in single membranes, or in one instance two membranes, and another three, united.' 2 And when we examine the manuscript, we find that various parts are distinguished by differences both in form and writing which demonstrate clearly their independent origin. Nor did any medieval hand number the membranes : the numbering has been done in uncertain fashion within qui te recent years and has been done on two conflicting plans.3 We must beware then of regarding the series of Exchequer Parliament Rolls as exclusively the product of medieval record-making ; medieval the material is, but, as we shall show, modern hands have re-shaped the material. However, for the moment, the points we wish to make are that we are dealing primarily with enrolments of pleas, judgements and petitions, and that these were not only written, as was the invariable custom, on single membranes, but that some may have remained for centuries in that state or in small collections : we should not postulate a single bulky continuous roll for each parliament as the medieval practice or ideal. The ' Exchequer Series ' of parliament rolls is, in truth, a haphazard collection of documents dating from 1290 to 1321, certainly for the most part connected with parliaments but having ho particular connexion with the exchequer. If we regard the collection not as a series of rolls but as a number of files of documents arising from proceedings in the king's council and in parliament and strung together in rough chronological order, we shall have a truer conception of the material composing it. We append a brief analysis of each roll, but we may also classify the material according to form and subject. We shall find that we have (a) notes of cases remitted from inferior courts to parliament,4 (¿) transcripts of documents and pleadings connected with cases coming before parliament and the council, including proceedings in earlier Maitland, Memoranda de Parüamento, p. ix. Ibid. p. rv. n. i : cf. Cole, Documents, pp. xii f. n. We must make it clear that this excessive fragmentation was not necessarily medieval ; the Fetus Codex seems to forbid this view. But, as we shall show, the nineteen membranes now tacked together were originally at least three separate documents. 3 These are noted by Maitland. 4 E.g. see Roí. Parí. i. 84., no. 23 (common pleas), 41, no. 39 (king's bench), 216 (exchequer). 1 2

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parliaments, (¿) notes of decisions taken, (d) enrolments of cases argued and decided in parliament and before the council,3 (e) statutes and orders of various kinds,4 (ƒ) records of the grants of subsidies and taxes,5 (g) enrolments of petitions and action taken thereon at various stages of the proceedings,8 (K) records of the attendance at parliament and of the order of business,7 (/) notes relating to the appointment of attorneys, manucaption and similar matters.8 While certain broad divisions are usually observed, as, for example, between rolls of petitions expedited by auditors and rolls of memoranda of business and placita coming before the council, the different kinds of entry are not invariably confined to separate or what we should regard as appropriate membranes, but are quite frequently intermixed. Since we are dealing with a modern artificial series derived from various sources, it is not surprising that similar documents should be found elsewhere, notably in the series of parliamentary and council proceedings of the chancery and the exchequer. Enrolments of parliamentary business, sometimes duplicating entries on the ' parliament rolls ', will be found also on the rolls of the king's bench, the exchequer and the chancery ; 9 but these rolls, particularly the memoranda rolls of the exchequer, contain a great many entries which probably were never enrolled on separate membranes specially written to record parliamentary business. Exceptionally important documents may be ordered to be enrolled in several places, and then we shall, of course, find identical entries on several rolls.10 1

2

1 Examples will be found in the notes on Parliament Rolls, nos. i, 7,9,13,14,19, in Appendix IIIA 2 below. Roí. Parí. i. 84, nos. 18-22, 130, 176 ff, et passim. 3 For pleas adjudicated in parliament, see Appendix III A ; for cases before the council, see Rot. Parí. i. 960, 125f, and the notes on Parliament Rolls, nos. 5 and 20, in Appendix III A. 4 Rot. Par!, i. 32-3, 78-80 (nos. 3-9), 933, etc. ; ibid. 36 (Quo Warranta), 41 (Quia Emptores), 6 96 (De Conspiratoribus), etc. Roí. Parí. i. 25, no. 15 ; 3$ia. 6 See notes on Parliament Rolls, nos. 2-4, 8, 12, 17-19, 21-23. 7 Rol. Parí. i. 188 f. and notes on Parliament Rolls, 12, 20, 21 and 24. 8 Rot. Parí. i. 32b, 343, 44b (attorneys) ; 34a, 8ga, g8a, I34b (manucaption) ; 8;b (appointment of justices of gaol deliver/) ; 325 (appointment of commissioners of oyer and terminer) ; 933 (recognisance), etc. 9 The pleas printed in Roí. Parí. i. 39-40 ; 70-77; 82-3; H 2 ; 138, for example, will be found also on Coram Rege Rolls, K.B. 27/126, m. 15 ; 130, mm. 14-16 ; 131, m. 49 ; 138, m. 39; 146, m. 57. Compare Rol. Parí. i. 25 (no. 15), 35 (no. 29) with E. 368/61 (L. T. R. Mem. Roll, 18 Edw. I), mm. 14, 15, and Roí. Parí. i. 89 (no. 35), 145 with Cal. Close Rolls (128896), pp. 314, 324, (1296-1302), p. 484 f. 10 The well-known Segrave case, for example, is entered, not only on a parliament roll, but also on the close roll (Cal. Close Rolls, 1302-7, p. 333 f.), and on the king's bench plea roll (K.B. 27/186, m. 22). The agreement known as the treaty of Leek is entered on a parliament roll and on the rolls of the chancery, exchequer and king's bench (Cole, Documents, pp. I ff ; Parí. Writs, II. ii. 184 ; E. 368/89 (L.T.R. Mem. Roll, 12 Edw. II), m. 83 ; K.B. 27/235, m. 24, as are also the documents connected with the exile and recall of the Despensers (see below, p. 143 n. l).

XIX 134

The Exchequer Parliament Rolls

Besides memoranda and enrolments, the records of parliament include a mass of subsidiary documents, chiefly original petitions and writs and returns ; we have reason to believe that at one time there also existed, for some parliaments 'at least, inquests which may or may not have formed a separate series.1 These subsidiary documents were filed in chronological order, and many files appear to have remained intact in the seventeenth and even in the eighteenth centuries 2 but in the nineteenth century they were dispersed and their original order can now be but partially and painfully discovered from the hints left by record searchers of earlier generations and the copyists of the old Record Commission 3 and by the evidence afforded by related documents.4 Although the ' Exchequer Series ' of parliament rolls is a modern creation, nevertheless it has a medieval nucleus and it is certain that collections of parliament rolls existed at the end of the thirteenth and the beginning of the fourteenth century. We do not possess by any contemporary hand anything like a complete account of the parliament rolls in official custody in the reigns of Edward I or Edward II or the early years of Edward III, but we do get a number of detached notices which tell us something of the state of affairs. It is natural to turn first to the exchequer. Does not the Modus tell us that the principal clerks of parliament had to deposit their rolls in the treasury and that before the parliament was dismissed ? 5 Now bishop Stapeldon's Kalendar gives us some information regarding the contents of the treasury in 1323, and Sir Francis Palgrave supposed that among the communia memoranda de partibus Anglie, there mentioned, certain of the existing parliament rolls of Edward I were included.6 This is, we think, altogether unlikely ; and if a series of parliament rolls then existed in the treasury 7 they must have been in a different collection from the writings and memorials regarding the kingdom of England and other lands of the king, his estate and dominion which engaged bishop 1

The best evidence for this is the ' inquest ' roll of the Easter parliament of 1290, now composing mm. 8—TO of Exchequer Parliament Roll, no. 2 ; see below, p. 147. For an earlier document, see Chanc. Misc. 14/4/27 : this is a writ of 4 June 1283, requiring Joan de Colleville to be at the Michaelmas parliament for judgement upon an inquest taken by the sheriff. 2 Hale's transcripts seem to show that some files had survived more or less in their original form from 6 Edward I : for these, see the printed Rotuli P arliamentorum. Ryley apparently knew others : see his Placita Parlamentaria, App. pp. 602 ff. Bréquigny seems to have found a file of Gascon petitions of 1290 in the Tower when he was conducting his researches in the 1760'$, but this file seems to have been intermixed with other documents ; see Champollion-Figeac, Lettres de Rois, i. 370. 3 Cf. Maitland, Memoranda de Parliaments, pp. xxvii. ff. 4 This is now rendered easier by the publication of the calendars to the chancery enrolments ; a large number of petitions are now dated more or less precisely on the P.R.O. files. fi Modus Tenendi Parliamentum, p. 15. 6 Antient Kalendars of the Exchequer, i. Ivii, 102, no. 71. 7 See below, p. 136.

and Other Documents

XIX 135

Stapeldon's attention.1 Of all the documents that can reasonably be connected with parliament in this collection there were evidently but a few scattered membranes or files. There were copies of the statutes of Gloucester in Latin and in French, of the statutes made in the Easter parliament at Westminster in 1285, and of two statutes of the Easter parliament of 1290, Quia Emptores and De Quo Warranta (the former rather quaintly said to be sine dato] ; then there was a letter from the bishop and chapter of Hereford in connexion with the canonisation of Thomas of Cantilupe, sent to the king in his parliament at Westminster of Michaelmas r 305 ; there were various memoranda of the Lincoln parliament of 1301 among a lot of miscellaneous documents ; and a file of rolls and memoranda of ordinances made in various parliaments and councils of Edward I, strung together with an indenture regarding the muniments of Edmund earl of Cornwall delivered into the wardrobe.2 Of rolls of pleas or of petitions—the principal contents of parliament rolls—there seems to be no trace ; and, significantly we think, the librum de parliamenîis which was delivered by bishop Stapeldon himself into the treasury in November 1322 3 finds no place in the Kalendar completed in the following year.4 The Kalendar, in fact, seems to reveal that various documents connected with parliament had drifted into a separate collection and were kept apart from any rolls and registers of parliamentary pleas and petitions that may then have existed in the exchequer. And there were undoubtedly other repositories besides the exchequer for parliament rolls. Already in the reign of Edward I it had been not uncommon for men to search the rolls of parliaments and we have in this way some indication of how and by whom they were kept. One of the earliest notes of such a search, made very soon after the rolls had been written, tells us that king Edward's council rolls of his parliament of the eighteenth year of his reign were in the wardrobe and that Gilbert of Rothbury who had been clerk of the council had a transcript—perhaps the transcript—of them.6 Again, at dates Antient Kalendan of the Exchequer, i. i. Ibid. i. 82 (i), (2), (3) ; 83 (7), (8), (12) ; 100(66); 102(71). The items mentioned on p. 91 (17), (19) concerning mints and base coin were probably not connected with any parliament. There were rolls of pleas of the parliaments of king John of Scotland at Scorie and Stirling in the first year of his reign (p. 134 (49) ), stolen, as some would say, from their rightful place ; but these were quite exceptional documents—happily still surviving (printed in Acts of the Parliaments of Scotland, i. 445 ff.). 3 Antient Kalendars, iii. 437. * Ibid. i. 3 and p. Ivi. 5 Kxch., Parí, and Council Procs., E. 175, Roll 7 : ' Ista inuenientur in rotulis de consilio domini Regis Edwardi de parEamento suo de anno regni sui décimo octaúo. Et rémanent rotuli in Garderoba et transcriptum eorùm pênes Gilbertum de Roubery tune clericum consilii sui.' This * roll ' is a file of documents, concerning the action brought by William of Valence to contest the legitimacy of Dionisia de Munchesny ; the search seems to have been made soon after the case had come before the Easter parliament of 1290 and, in any event, before the death of William of Valence in 1296. The extracts cover the proceedings printed Rot. Parí. i. i6b, I7a, 38b. 1

2

XIX 136

The Exchequer Parliament Rolls

thirteen years apart, in 1293 and 1306, we have references to two different cases which can be found upon membranes which to all appearance belonged to one and the same parliament roll ; but in the first instance the roll upon which the case is to be found is said to be that of Gilbert of Rothbury 1 and in the second instance to be in the king's wardrobe.2 Of rolls of that time which were unquestionably in the wardrobe we still possess specimens—the rolls of Irish petitions of the parliaments of Hilary and Easter 1290, which at the close of the latter parliament were handed in to the wardrobe by Peter of Champvent, one of the triers of Irish petitions.3 The clear uncorrected writing of these rolls shows unmistakably that they are transcripts ; the originals, now lost, from which they were taken were or should have been deposited in the exchequer.4 Again, in 1306 we find an instruction to make search in the chancery and the exchequer and in the rolls of the parliaments of the time of the present king ; 6 this suggests at least that parliament rolls were to be found elsewhere than in the chancery and exchequer. We know further that Gilbert of Rothbury in 1308 and in 1310 had parliament rolls of Edward I in his custody whilst others were then in the treasury of the exchequer.6 It is certain that Gilbert of Rothbury and the barons of the exchequer both possessed an identical roll or rolls of the Lenten parliament of 1305.' Again in 1314 the Coram Rege Roll, K.B. 27/135 (Hilary 1293), m. 17 : the proceedings printed Rot. Parí. i. 24-b, 2 Ça are here reproduced, headed ' Recordum de Rotulis Gilberti de Routhebyris de parliamento sancti Hillarii et Pasche anno regni regis Edwardi filii regis Henrici décimo octauo.' 2 Coram Rege Roll, K.B. 27/185 (Trinity 1306), m. 4 : ' Et de hoc ponit se super recordum rotulorum parliament! predicti qui sunt in Garderoba domini regís. Ideo mandatum est custodi Garderobe quod scrutatis rotulis parliamenti predicti. . . .' The parliament is that of Easter 1290 and the search was for evidence that the chancellor and masters of Oxford university had been given cognisance of actions for trespass within the town, to which the scholars or their servants were parties. An ordinario pads had in fact been made between the university and the burgesses in that parliament, but it is not entered on Exch. Parí. Roll, no. i, although there is a note that a rotulus containing it was delivered into the wardrobe and transcripts given to the parties (Rot. Parí. i. 33a). Copies of the ordinance are preserved in Chañe., Parí, and Council Procs. 2/14 and Coram Rege Roll, K.B. 27/123 (Easter 1290), m. 62 ; it is printed in Munimenta Académica (Rolls Series), i. 46 f. 8 Cole, Documents, p. 82. The other triers of Irish petitions were Stephen of Penchester and Robert of Hertford or, as he is here called, Hereford (ibid. p. 68). Peter of Champvent was at the time steward of the household, but it would be rash to see in this fact any reason for depositing the rolls in the wardrobe. 4 Roí. Parí. i. 16 : ' Dominus Rex precepit quod Rotuli de Petitionibus Hibernie et earum responsionibus liberentur ad Scaccarium etc.' The rolls in question, Exch. Parí. Rolls, nos. 3 and 4, are, it is curious to note, made up differently : the former * exchequer ' fashion and the latter ' chancery ' fashion. 5 Cole, Documents, p. 130 ; the entry required (p. 131) corresponds to Roí. Parí. i. 114. 8 Rot. Parí. i. 173 f., 184; Cal. Chancery Warrants (1244-1326), p. 333, no. 1557. 7 The proof is supplied by Exch. Par!. Roll, no. 12, m. 15 (printed by Maitland, Memoranda de Parliamento, pp. 255 ff.) and Exch. Parí. Roll, no. 13, m. 2 (printed Rot. Parí. i. 172 ff.). A comparison will establish that the original entries correspond and that the Posteas which contain, the one 1

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XIX 137

fact that Gilbert had parliament rolls in his possession is mentioned incidentally in a case in the common bench : counsel knows that he has a roll of the Epiphany parliament of 1292 and suggests that Gilbert will supply a certified copy of an entry on it if a writ is addressed to him.1 In 1319 we have a reference to parliament rolls which are said to be in the custody of the barons of the exchequer,2 and in 1323 there is definite information that the parliament rolls of Edward I in the exchequer were searched.3 And then, as we have seen, there was delivered in 1322 into the treasury a librum de parliaments which appears to be identical with the Fetus Codex, and, if so, contained transcripts from a seemingly chance collection of rolls connected with the parliaments of the first two Edwards. For the Fetus Codex, although containing extracts from rolls no longer extant, ignores a number of rolls still surviving which come to us from the period before the fourteenth year of Edward II, the latest represented. This unnoticed matter includes enrolments of English petitions of the Easter parliament of 1290,* of Irish petitions of Hilary and Easter r29o, 5 Michaelmas 1293,* an<^ Lent 1 3°5>7 °f Scottish petitions of Lent and September 1305,8 of Irish petitions of the August parliament of 1312,9 and of pleas and petitions of Hilary 13if10 and Hilary I3I6.11 There is no question, moreover, that rolls of this period once existed which have not been transmitted to us and which were unknown to the compiler of the Fetus Codex.12 On no hypothesis of picking and choosing of entries and subject matter— such as Maitland advanced for the omission from the Fetus Codex of any entries a writ addressed to the treasurer and barons of the exchequer dated 23 February 1308, and the other a writ addressed to Gilbert of Rothbury dated 7 May 1308, were subsequently added by, or at the instance of, the respective custodians of the membranes. It does not seem hazardous to conclude that Gilbert possessed other membranes corresponding to certain of those included in roll no. iz. 1 Year Book, 7 Edward II (Selden Soc.), pp. 127 f. ; cf. Rot. Parí. i. 79. 2 E. 368/89 (L. T. R. Mem. Roll, 12 Edw. II), m. 9jb: these are rolls of the parliament of Carlisle. Rolls of this parliament, corresponding apparently to the membranes printed by Cole (Document^ pp. 129 ff), had been previously searched in 1315, but it does not appear in whose custody they were (Rot. Parí. i. 339, no. 6). 3 E. 368/92 (L. T. R. Mem. Roll, 15 Edw. II), m. 63 ; Chañe. Misc. 14/4/83. This search also had special reference to the parliament of Carlisle, but it went back beyond this date. 4 Exch. Parí. Roll, no. 2, printed Rol. Parí. i. 46 ff. As to date, see below, p. I40f. 6 Exch. Parí. Rolls, nos. 3 and 4 : printed in Cole's Documents, pp. 5 5 if. 6 Exch. Par!. Roll, no. 8 (unprinted) : this roll consists exclusively of pleadings on petitions, see below, p. 148. 7 Ibid. no. 12, m. 14 : printed in Memoranda de Parliament, pp. 232 ff. 8 Ibid. no. 12, m. 10-12 : printed ibid. pp. 168 ff. 8 ¡bid. no. 17 (unprinted). 10 Ibid. no. 18 : printed Rot. Parí. i. 288 ff. 11 Exch. Parí. Rolls, nos. 19 and 20 : printed Rot. Parí. i. 334 ff., 350 ff. 12 As to rolls not now extant, of which there is some contemporary note, see below, Appendix III B.

XIX 138

The Ex;chequer Parliament Rolls

on the Scottish membranes of Exchequer Parliament Roll, no. 12 3—can we account for this wholesale rejection. We can suppose only that the compiler of the fetus Codex took nothing because he did not have these rolls by him, that he took what he did take because there was accessible to him an imperfect collection of rolls from 1290 onwards. Those others that we possess may have formed part of a series in separate custody ; or perhaps some at least of them were lurking hid from the compiler in the same repository,2 for they supplement far more than they duplicate the Fetus Codex series. However, we have already noticed indications that transcripts of certain rolls were made, and it may well be that, had all the rolls that were written remained in safe custody from 1290 to the present day, we should have many duplicates. Chance, which does not always deal kindly, may have determined that the survivals from one series should supply some of the gaps in another defective series. It will have been noted that the evidence suggests that the arrangements for the custody of the parliament rolls were rather haphazard ; they might be looked for in the wardrobe, in the exchequer or in the hands of the clerk of the council. Despite the existence of transcripts it may well have been that no series which was in any sense complete existed in any single repository. Why, we may ask, did the Fetus Codex take nothing from any roll earlier than 1290 and why have we no collection of membranes for any earlier parliaments similar to those which have come down to us for parliaments of that year ? We have good reason to know that documents similar to those which composed the later parliament rolls were already being confected in the early years of Edward I. We still possess such records as the now well-known memoranda of I 2 7 9 3 and the memoranda, which we print below, of 1283.* A reference in 1307 to proceedings in the Michaelmas parliament of 1276 suggests that a record of some kind existed in the chancery of business, or certain items of business, transacted then.5 There exists in a seventeenthcentury transcript memoranda of 1277-8,* while a membrane survives containing the enrolment of a placitum ' Coram domino rege et consilio suo in parliamento suo Pasche anno regni sui viii.' ' Moreover, although the earliest extant roll of petitions comes from 1290, the responses to two petitions, one 1 2 3 4 5

6 7

Memoranda de Parliamento, p. xvii. See above, p. 136 : rolls of Irish petitions of Hilary and Easter, 1290. Trans. Royal Hist. Soc. (4th. Series), x. 48 ff. Appendix IV. Rot. Par!, i. 348. Ibid. i. i, no. 2 : from Male's transcripts—the original does not appear to have survived. Chañe., Parí, and Council Procs. 69/13.

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presented at the Easter parliament of 1278 1 and one apparently earlier,2 may imply that such rolls were written for the earliest parliaments of Edward I. It is, of course, quite certain that the system of filing petitions and other subsidiary documents connected with parliament was in existence before 1290.' Again, we cannot perceive in the enrolment of parliamentary documents in the chancery, the exchequer or king's bench any indication of a new departure from that year ; on the other hand there is every evidence of the uniformity and continuity of procedure throughout the reign. That there should be but a sparse sprinkling of parliamentary records for the earlier part of the reign is doubtless due in some, perhaps in large, measure to the accidental loss of much that was written, but we still think that 1290 is a significant date. Not only is there a marked difference in the making and writing of the rolls of the king's bench,* but from that year also it seems that new methods of record-keeping were introduced into the wardrobe.5 It is quite likely that the methods of recording parliamentary business were improved and regularised at the same time. To argue from silence is dangerous, but we have been struck by our inability to discover evidence for a definite search of parliament rolls of a date earlier than 1290, while there is not a little evidence of searches, in the last decade of the thirteenth century and the early part of the fourteenth century, of parliament rolls dating from 12 go.6 May Rot. Parí. i. 8, no. 34 : petition of Roger Delisle (cf. ante, v. 137). The endorsement reads : ' Responsum est in Rotulo.' 2 Ibid. i. 9, no. 37 : petition of Alice, widow of John of Sandwich, who says that her daughter Juliana is not quite a year old. But in September 1283 Juliana is stated to be eight years old (Cal. Inq. P.M. ii. 293) and, if so, must have been born at latest in 1275. In Hale's transcripts, this petition is ascribed to 6 Edward I, like those which precede and follow it. Note that petition no. 38 seems also to belong to 4 Edw. I. (cf. Cal. Fine Rolls, 1272—1307, p. 67). 3 Besides Hale's transcripts of petitions of the early years of Edward I, principally perhaps the sixth year to which they are ascribed, we have such evidence as the label of the file of petitions for the Easter parliament of 1281 (Ancient Petitions 6881) and the series of petitions that we can confidently allocate to 1283 (see Appendix IV). 4 This is amply demonstrated by comparing the slovenly rolls of previous years with that for the Trinity term of 1290 (no. 124), which shows a very marked improvement in writing, the clerks responsible for the engrossing for the first time regularly adding a note of their names at the foot of almost every membrane. This roll is in fact the finest specimen of its kind in the thirteenth century or the whole reign of Edward I. 5 It is from 1290 that the earliest references come to the enrolment of letters of privy seal in the wardrobe (Tout, Chapters in Mediaeval Administrative History, i. 55 ; ii. 80) ; the fact that a bag for containing these rolla is bought in May 1290 and a new bag for the same purpose some months later suggests that the older bag may have been the very first (Chanc. Misc. 4/5 (Wardrobe Book, 18 Edw. I), ff. 6, n). The Wardrobe (Controller's) Book for 1289-90 seems also to be in advance of that for 1285-6 (Chanc. Misc. 4/3) : no similar books for the intervening period appear to have survived. 6 Above, pp. 135-7. In 1323 the barons of the exchequer search the rolls and other memoranda of the exchequer from 47 Henry III, the rolls of the king's bench while Roger Brabazon was justice, ' et Rótulos de parliamentis ipsius Regis Edwardi patris domini Regis nunc ' (Chanc. Misc. 14/4/83) : 1

XIX 140

The Exchequer Parliament Rolls

not the explanation be that such earlier parliamentary records as existed— apart, of course, from files—were ill-kept and difficult to consult, still worse kept than they were after 1290? They were not, perhaps, in the earlier period public records in the same sense as the plea rolls or the rolls of the chancery and the exchequer, but rather council memoranda for departmental use. When a decision was taken in parliament, it led, as a rule, to a record on a plea roll or a chancery or exchequer roll ; often it led to the preparation and issue of an instrument sealed with the king's seal. The memoranda of decisions taken or business done in parliament may for long have seemed to be but of temporary and transitory importance : the effective and permanent record was to be found elsewhere. And even after 1290, and despite the duplication of records, clearly less care and method were exercised in keeping the records of parliaments than in keeping the records of the king's bench or the chancery, the exchequer or the wardrobe. Yet by this time a very considerable value was coming to be attached to parliamentary records and carelessness and muddle in their keeping may seem extraordinary until we reflect that parliament, like—or perhaps even less than—the council x had no distinct and permanent clerical establishment, although the evidence is sufficiently strong to warrant us in believing that certain ministers or clerks were definitely charged with the duty of attending to parliamentary business and continued to discharge their duties—intermittently indeed since the regular sequence of parliaments was apt to be interrupted—for years together.2 We must also, as we have suggested, dismiss all idea of a ' complete ' parliament roll giving a full account of the proceedings. Each separate tribunal constituted for the purpose of a parliament made a record of some sort of its proceedings : of so much we seem to be sure. And thus we get from 1290 onwards a number of rolls of auditors of petitions, and a number of other rolls consisting chiefly of what appear to be pleadings before the council, interspersed with memoranda of matters relating to legislation and taxation. this certainly suggests that no parliament rolls of Henry III were known to exist in the exchequer and is not inconsistent with the absence from the exchequer of any roll prior to 1290. 1 Cf. Baldwin, King's Council, pp. 362 ff. z It is quite clear, for example, that Gilbert of Rothbury was constantly occupied with the business of parliament from 1290 until, at least, the end of Edward I's reign : not only do we find mention of 'rolls of parliament' ascribed to him for the years 1290, 1292, 1301, 1302 and 1305 (see above, p. 13 5-7), but it is evident that he was responsible for the dispatch of records of cases, which had come before parliament, to the various courts assigned to terminate the proceedings on them. Since parliament was wont to meet with ordered regularity before 1290 (see ante, v. 151 f.), it is natural to expect that before that year some person or persons were definitely assigned to undertake similar work. There is, in fact, pretty conclusive evidence that John Kirkby was thus employed for many years. The activities of clerks of the parliaments form the subject of another paper to appear elsewhere.

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But the procedure of parliament was, it would seem, still experimental under Edward I and Edward II, and we may get yet different rolls, such as the roll of inquests, as we may term it, of lago.1 And then the growing custom of summoning large bodies of assistants—to use a colourless phrase—to parliament, and the system of paying wages to county and town representatives, led to the making of records of another kind, some few of which have survived.2 Ayremynne's roll of 1316 may seem to mark a step forward, the drawing up of a narrative account of some of the principal stages in a session of parliament, but, in truth, the roll appears to have been devised ad hoc, as a sort of protocol to record the steps leading to the agreement between the earl of Lancaster and the king ; for chancery clerks were experts at work of that kind and we are reminded of the protocols recording the various stages in the Great Cause of 1291 and I292. 3 Ayremynne's record, covering three or four membranes at most,4 was not, of course, an attempt at giving a full account of the proceedings ; a much larger roll was drawn up independently to record the business arising out of petitions presented at the Hilary parliament of I3i6, 6 to a large number of people assuredly the most important business of parliament. And so far from being a true journal, Ayremynne's record was doubtless a later production, composed after the event from notes, very much as a summary account of a fourteenth-century Burgundian parliament was written,6 and not a day to day record like the dated memoranda in the French registers of conseil et plaidoiries."1 Under Edward III, Ayremynne's successors also wrote narrative 1

Exch. Parí. Roll, no. 2, mm. 8-10 : see below, p. 147. For the Lent parliament of 1305, we have a list of those entitled to their wages (Parí. Writs, i. 157 f.). For the Hilary parliament of 1307, we have an abstract of the sheriffs' returns (ibid. i. 187 ff.) as well as a list of those entitled to wages (Chañe., Parí, and Council Procs., 68/4 ; see ante, iii. 112, n. 5) ; for the same parliament the Fetus Codex has preserved lists of those summoned (not including the commons), of proctors and of attorneys (the best text is in Parí. Writs, 1.183 ff.). For the Candlemas parliament of 1324 there is a roll which originally contained (m. i) a list of proctors and (m. 2) a list of commons entitled to expenses, with particulars of their journeys (ibid. II. ii. 311 ff). It is rather remarkable that in recent discussions of the attendance of the commons at medieval parliaments these very instructive documents seem to have been overlooked. 3 See Palgrave, Documents illustrating the history of Scotland, illustrations II-IV ; Scottish Historical Review, xxv. 306 n. 4 & See below, p. 151. Exch. Parí. Roll, no. 19. 6 Cf. Petot, Registres ties Parlements tie Beaune et de Saint-Laurent-lès-Chahn, pp. vu, i, 37, 52, 122, 234. The fact that this summary account is an addition is shown, of course, by the fact that it appears as the first entry of the proceedings ; on one occasion, in 1380, the scribe was negligent and the page left bknk for the entry has never been written. 7 Even these were transcribed or expanded from notes, and not actually written in court ; cf. Grün, Notice sur les archives Ju parlement de Paris, pp. clii ff. (prefixed to Boutaric, Actes du parlement de Paris, vol. i.). Specimens of the entries from 1400 to 143 5 will be found in the Journal de Nicolas de Baye, and the Journal de Clément de Faujuemèergue, published by the Société de l'histoire de France. 2

XIX 142

The Exchequer Parliament Rolls

outlines of the proceedings of certain parliaments,1 but whether it was by force of his example is another matter. The idea was not in itself very original ; it had already occurred to certain of the clerks concerned with recording the business before auditors of petitions to introduce matter which gave a semblance of narrative.2 It is difficult to perceive between the years 1290 and 1327 either any sensible development in recording the business of parliament or any organised attempt at recording the whole of the business, at writing a general account. Indeed, we may ask what useful end would have been served by any such attempt, for the object of the clerks was strictly utilitarian. When special circumstances seemed to necessitate special steps, then we have new departures, as in 1316, 1318 and I32i, 3 perhaps also in 1324,* when documents of unusual importance were enrolled in an exceptional manner ; but these new departures, which include Ayremynne's roll, are scarcely evidence of development, and the same special circumstances might lead to the enrolment of important but quite exceptional documents both on a parliament roll and on other rolls as well.5 The conclusion at which we arrive is that at no time in this period have we a deliberately devised record of the proceedings of any parliament as a whole. The rolls of each group of auditors of petitions were apparently complete in themselves 6 ; and the pleas before the council were probably recorded with fair completeness in rolls such as those that have come down to us.7 But no one seems consciously to have set to work to include in any one roll, whether the roll of the council or some separate record, notes of the attendance of counsellors and representatives at the parliament and of the order of business, together with memoranda of the deliberations and decisions concerning legislation, taxation and non-judicial matters, and then to have added to this material the judicial records of the parliament. All these matters were doubtless recorded Roi. Par!, ii. 60, 64-69, 103 ff., 107 ff., 112 ff., 117 ff., 126 ff. etc. For the Lenten parliament of 1305, see Maitland, Memoranda de Parlamento, pp. 3 f. ; for the autumn parliament of 1305 there is a similar passage in the Fetus Codex (best text in Parí. Writs, i. 160). The beginning of the record of the Hilary parliament of 1307 in the Fetus Codex (ibid. i. 183 ff.) also approaches the narrative form. 8 Exch. Parí. Roll, no. 20, mm. i and 2, no. 21, mm.r-3, no. 24 : see below, p. 151. 4 No roll of the Candlemas parliament of 1324 has survived, but see Parí. Writs, II. App 265, no. 47. 5 E.g. Maitland, Memoranda de Parliaments, p. 2 5 5 , n. 2; Parí. Writs, II. 184 f. ; Cole, Documents, pp. 1-3 ; Par!. Writs, II. App. 265. Cf. also p. 133 n. 10 above, p. 152 below (notes on Exch. Parí. Roll, no 24). 6 See our remarks concerning Exch. Parí. Roll, no. 12, below, p. 149, and our analysis of other rolls. 7 Of these rolls, mm. 1-15 of Exch. Parí. Roll, no. 18, afford a good example ; see below, p. 151. Omissions may have occurred : the absence of any note of Morton v. Hereford (see Gilbert, Historical and Municipal Documents of Ireland, pp. 223 ff.) from Exch. Parí. Roll, no. 12, may not be due to tke loss of a membrane. 1 2

and Other Documents

XIX 143

more or less fully upon every occasion, but for the most part on separate pieces of parchment that were never put together as one single roll. When enrolment actually took place the permanent record was often some quite distinct roll. Thus a roll was specially devised for statutes ; the rolls of the chancery and the exchequer received the principal instruments connected with taxation ; and suitable rolls could be found to record other matters of importance. Nor was any one method of recording exclusive of other methods : a statute, for example, might be found on a parliament roll, on a separate sheet of parchment, on the statute roll, or on a plea roll of the king's bench ; 1 if it was published in the form of letters patent, it might be enrolled on the patent roll ; 2 or it might appear on the close roll.3 Many notes, however, necessary to be made at the time, must have seemed to have but fugitive value : thus once a parliament was over, and all the writs of expenses had been written and sealed that the knights and burgesses demanded, the notes of their attendance were of little consequence —if any question arose later, the close roll should show what writs had been issued. Not only did the system of administration militate against the conception or creation of a complete parliamentary record, but we must take account also of another factor that made for confusion. For the most part it does not seem to have been of great consequence, from the point of view of administration, whether a decision was taken in parliament or in the council on some other appropriate occasion ; to all appearance the effect was, for ordinary purposes, the same, despite the gradual crystallisation of ideas of what constituted the proper and exclusive functions of parliament. Consequently, and especially perhaps when the clerk of the council was also the clerk of the parliaments,* the records of parliaments and of councils tended to be intermixed ; and not only were parliamentary and council memoranda filed together,5 but rolls were 1 The statutes of Quia Emptores and Quo Warranta are entered on Exch. Parí. Roll, no. i, and existed also separately in the Treasury of the Receipt (Palgrave, Antient Kalendars, i. 83) ; they were not entered on the statute roll so far as we are aware. The statutes of Gloucester and Westminster (128 5) also existed separatelyin this repository (ibid.\. 82) ; these are entered on the statute roll. The statute against the Despensers is entered on the statute roll (Statutes of the Realm, i. 185 n.), the close roll (Cal. Close Rolls (i 318-2 3), pp. 495 ff.), and the coram rege roll (K. B. 27/246, m. 20), and likewise its revocation (Statutes of the Realm, i. 18 5 ff. ; Cal. Close Rolls (i 318-23), pp. 541 ff. ; K. B. 27/248, mm. 67 f.) : the former is also on Exch. Parí. Roll, no. 24, m. 2. Other statutes on the coram rege roll are the Revocatio Novarum Ordinacionum and the Statutum de Terris Templariorum (Statutes of the Realm, i. 189 ff., 194 ff. ; i£JB. 27/257, m. 25 d., 260, m. 18). z As, for example, the Articuli Cleri of 1315 and the later statute of 1316 ; Statutes of the Realm, i. 171 ff.,i75f3 As in the case of the statutes of Acton Burnel and Quia Emptores : ibid. i. 53, 106. 4 Gilbert of Rothbury appears to have acted in both capacities for a fair number of years from 1290 onwards. 5 Antient Kalendars of the Exchequer, i. 102, no. 71.

XIX 144

The Exchequer Parliament Rolls

made up (probably after the interval of years) of membranes belonging some to parliament and some to the council.1 The apparent orderliness in parliamentary records from 1290 onwards is therefore delusive : in part it is an illusion created by modern archive administration. The relative sparseness of parliamentary documents, separate from entries on plea rolls and chancery and exchequer rolls, for the earlier period does not necessarily indicate any essential difference in the character of the records which were made. ' Complete ' parliament rolls were not written either before or after 1290. Whether there was a greater regularity in recording petitions or pleas is a question to which the only answer can be a guess. On the whole we incline to the view that, as there seems to have been greater care in preserving the rolls of parliament from 1290 onwards, so there seems to have been greater care in recording certain classes of parliamentary business. But any such guess is hazardous : the discovery of a few membranes of petitions and responses or of a few more membranes of placita might prove that guess to be wrong. There was doubtless a time when the recording of parliamentary business was rudimentary, when the first roll of petitions was written and the first membrane of placita ; but perhaps we should be wise to look for origins, not only of parliamentary institutions but of parliamentary forms and records, in the reign of Henry III. Certainly it is difficult to find signs of fresh departures under Edward I. If we lack for the earlier years of Edward I any collection of documents comparable to the first sixteen rolls of the ' Exchequer ' series of parliament rolls, we still possess the very considerable body of documents to be assembled from plea rolls and rolls of the chancery and exchequer, and it is from these sources that we must, in any case, derive much, if not the greater part, of the material for the history of English parliaments at any early period. It is important to recognise the extent of this material, which the parliament rolls of Edward I and Edward II do little more than supplement, principally by helping to elucidate the process by which petitions were tried and judicial decisions were reached. If we abstract the entries on the parliament rolls which are concerned with petitions at different stages and make a further abstraction of the pleas and other legal proceedings which also appear on these rolls, the remaining items will be found to fill but a small space and to provide relatively little information, with few exceptions of no great importance. Nor is the history of parliament made up of great monuments of legislation and of dramatic political incidents ; these have their place, but little enough of such matters will be found on the parliament rolls. 1

E.g. Exch. Parí. Rolls, nos. 5-7 and 20 : see below, pp. 147-8, 151.

and Other Documents

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The history of parliament is the history of a court placed over other courts, devised to dispense a higher justice, to provide ampler deliberation for the affairs of the kingdom and the king's dominions. It must therefore be very largely a history of procedure, and details of procedure are apt to be dull. But the evolution of any organ of government cannot be without interest, and the story of the origin and growth of the English parliament, with so tremendous a destiny, beyond any dream of its unknown architects, must be one of the highest interest. And yet, as it seems to us, it has hardly begun to be written. The element in particular to which we would direct attention is the official element ; the aspect of the business of parliament, which we would stress is the expedition of matters of justice and of administration—not law-making or taxation or politics. The part played by representatives of the commons in any of the fields of parliamentary activity seems, as far as any record bears witness, but the most insignificant ; and it is hard to perceive that the barons, save in quite unusual circumstances, achieved anything of consequence, except in so far as they assisted in the normal business of the council or in the hearing of petitions. But to the history of the commons and the peers an immense amount of labour has—not always very intelligently—been directed. If it has from time to time been suggested that the official element in parliament was of some importance, nevertheless this side of parliamentary history has been almost entirely neglected ; no one has thought it worth while to trace the careers of even the most prominent of officials concerned with the detailed business of parliament ; their names, in this connexion at least, are to all intents and purposes unknown. Yet it is certain that the contributions of judges, ministers and clerks to the development of parliament was out of all proportion greater than the contribution of any other body of men there represented regularly or intermittently—barons, knights or burgesses. To determine what was the contribution of each element in parliament involves the asking of many questions, but to most of them we may hope, from all the resources at our command, for reasonably full answers. It is necessary to know how business came before parliament ; how it was classified and by whom ; the stages through which it passed ; the tribunals or councils that considered it. Petitions, pleas, administration, legislation, taxation, all these matters came before parliament and occupied varying proportions of parliamentary time, of the time of ministers and clerks, of different sections of the various bodies that composed parliament ; but what is yet known of the steps by which decisions were reached ? Many current notions regarding the ordering and functions of parliament are already suspect ; when we know what we may reasonably expect to know of the medieval parliamentary machine,

XIX 146

The Exchequer Parliament Rolls

it is inevitable that the history of parliament in the thirteenth and fourteenth centuries will be very differently represented.

APPENDIX I

THE 'EXCHEQUER SERIES' OF PARLIAMENT ROLLS

Roli no. i. Printed Rotuli Parliamentorum, i. 15-45, 66-69. Used for fetus Codex, ff. 1-26 (omissions represent 162 lines in Rot. Parí.) : printedRyley, Placita Parlamentaria, pp. 1-73. A composite roll. Membranes i-io (Rot. Parí. i. 15-44) were apparently written at or shortly after the Easter parliament of 1290, although m. i is headed : * Placita coram Domino Rege et eius Consilio ad Parliamenta sua post festum sancti Hillarii et eciam post Pascha anno regni Regis Edwardi filii Regis Henrici décimo octavo.' The majority certainly, and perhaps the whole of the cases, came up before the Easter parliament, many on adjournment from the Hilary parliament. No membrane can be distinguished as belonging to the Hilary term. Besides records of pleas, these membranes contain memoranda of other business—grant of an aid pur filie marter (p. 25, no. 15), directions as to the enrolment of letters sent to the Curia (p. 25, no. I5c), conditions of regrant of an escheat made at Candlemas (p. 30, no. 18), instructions to the justices of the common bench in cases of dower (p. 32), appointment of attorneys (pp. 32, 34, 44), manucaption (p. 34), as well as the so-called Statutum de Consultatione and the statutes of Quo Warrant» (much corrected) and Quia Emptores (pp. 32, 36, 41 ; Statutes of the Realm, i. 106-8). It may be noted that the Postea printed on p. 34 after no. 26 should follow no. 20 on p. 32. Membranes n and 12 contain records of six pleas before the Epiphany parliament of 1291. Although m. 11 is headed : ' Placita de Parliamento apud Clypston a die Sancti Michaelis in unum Mensem anno xviii' (Rot. Parí. i. 45), there is an endorsement of which the following words can be deciphered : ' Placita coram domino Rege . . . sua tenta apud AsshrugV The first case on m. 11 (no. 42) is continued at the Epiphany parliament after a hearing at the Michaelmas parliament; the other case is adjourned coram rege on the quinzaine of Hilary. M. 12 is headed : ' Placita de Parliamento apud Assherugg' in crastino Epiphanie anno xix.' At least two of the four cases on this membrane had been adjourned from the Michaelmas parliament (Rot. Parí. i. 66 f., nos. i and 2 (one case only), 69, no. 4). Roll no. 2. Printed Rot. Parí. i. 46-65. Not used f or Fetus Codex. A composite roll. Membranes 1-7 contain abstracts of petitions and replies written in the same even hand and are clearly transcripts. These membranes are closely connected with roll no. I. For example, no. 28 (p. 47) is obviously the petition which gave rise to the Statutum de Consultatione (p. 32) ; no. 29 is equally clearly connected with the entry on p. 33 regarding the action of the abbot of Faversham against the men of Faversham ; no. 80 is a transcript of a writ to be found on p. 3 5 and no. 81 records the decision upon a technical objection made to the writ by William of Valence. These entries suggest that despite the heading on m. i (p. 46), the seven membranes actually belong not to the Michaelmas but to the Easter parliament of 1290. This suggestion is strengthened by noting adjournments given for dates after Trinity (nos. 16, 23, 95 *) and Midsummer (nos. 82, 84, 96, 98), and a direction that action is to be taken * citra festum beati Michaelis' (no. 200); nor are these directions inconsistent with an adjournment to the octave of Michaelmas (no. 168). Moreover, it can be shown that action on certain petitions was taken before the Michaelmas term 1290 : thus, no. 34 is the source of the permission granted on 3 June 1290 to the abbot of St. Edmund's to hold certain manors that had belonged to Thomas of Weyland (Cal. Fine Rolls, i. 277) ; no. 103 is the basis for the licence granted on 21 June 1290 to Peter Doget to alienate lands in mortmain to St. Mary's priory Wareham, 1 In the latter instance the proceedings following upon the petition can be found on the coram rege roll for the Trinity term, 1290 (K.B. 27/124, m. 74).

The Exchequer Parliament Rolls

XIX 147

while no. 113 is the basis for a similar licence dated 13 July to the bishop of Exeter in favour of Leigh abbey (Cal. Patent Rolls, 1281-92, p. 373), and no. 137 is the basis for the charters dated 6 June 1290 in favour of the hospital of St. James, Westminster (Cal. Charter Rolls, ii. 353). The endorsements on Ancient Petition 14656, which records proceedings prior to the presentation of no. 73, seem to show that the first petition was presented in the Hilary parliament (since one adjournment is to Saturday after the Conversion of St. Paul) but adjourned to the Easter parliament (the next adjournment being ' usque proximum parliamentum,' with a note that John bishop of Ely (f 26 March 1290) has been told to certify the king concerning the deanery of Wimborne which he had held). The evidence therefore tends very strongly to the conclusion that the date found in the heading on m. i is the mistake of a later transcriber. Incidentally we may note that the endorsements on certain of the original petitions which can be identified contain references to rolls (i.e. membranes) which are not the membranes we now possess. This is proved not only by differences between endorsement and entry on the roll but also by the fact that petitions abstracted on mm. i, 2 and 4 all bear on the endorsement references to rotulus secundus (e.g., nos. 22, 37,114 : Anc. Petns. 13779,13143, 8720). These rofu/i, which have now disappeared, were at least four in number, the fourth bearing a close relation to the existing membrane 3 (compare nos.62,64,69,7i,77,79withAnc.Petns., 15335,13363,13133,12795,13762,8078, and no. 67 with Chañe., Parí, and Council Procs., 33/8). Membranes 8-10 are very different in character from mm. 1-7. That their association is comparatively recent is shown by the fact that a post-medieval hand has inscribed on what is now the dorse of m. 8 ' Peticiones Edwardi primi' and has marked it number one ; it has, however, no heading. The entries on these three membranes are all obviously concerned with one class of business—inquests: a number are adjudicated on; others are ordered to be made; in yet other cases no action is taken. This section of the roll is clearly not a transcript. In the first place the main portion of each entry (corresponding to the petition) has been written in a regular leisured hand ; the decisions were subsequently entered in a rapid cursive hand in strong contrast to the first hand. In a number of instances the letters patent which gave effect to the decisions can be traced and they are all dated June and July 1290 (nos. 204, 214, 215, 219, 232, 239, 242 : Cal. Patent Roils, 1281-92, pp. 362, 364, 365, 366, 370, 376). Moreover, no. 243 (m. 9) is connected with no. 63 (m. 3). There seems no reasonable doubt that we have in these ten membranes two separate rolls of the Easter parliament of 1290, representing two different sections of parliamentary business. Roll no. 3. Printed Cole, Documents Illustrative of English History, pp. 55-67. Not used for Fetus Codex. Four membranes filed 'exchequer' fashion: a transcript made for the wardrobe (see p. 82). Irish petitions of the Hilary parliament of 1290. M. i contains abstracts of petitions and responses; mm. 2-4 contain enrolment of proceedings on complaints against Nicholas of Clare. Roll no. 4. Printed Cole, Documents, pp. 68-82. Not used for Fetus Codex. Five membranes attached ' chancery' fashion : a transcript made for the wardrobe (see p. 82). Irish petitions of the Easter parliament of 1290. Mm. 3, 5, and id contain enrolment of proceedings on complaints against various ministers. Roll no. 5. Printed Rot. Parí. i. 70-90. Used for Fetus Codex, ff. 27-40 (omissions represent 153 lines in Rot. Parí.): printedRyley, Placita, pp. 74-113. Membranes 1-5 contain pleas and memoranda of the Epiphany parliament of 1292. Of the remaining five membranes, 6, 7 and 9 appear certainly to be connected with the Easter parliament of 1293 (with p. 86, no. 29 (m. 6), compare p. 105 ; with p. 87, no. 32 (m. 7), compare p. 99, no. 12 ; with p. 89, no. 35 x (m. 9), compare Cal. Close Rolls, 1288-96, pp. 314, 324, Cal. Patent Rolls, 1292-1301, p. 31) ; m. 8 contains the enrolment of proceedings before the council on 3 May 1292 1 This is a reference to mainprise until the Easter parliament (1293 and not 1292, as stated ante, v. 145).

XIX 148

The Exchequer Parliament Rolls

(pp. 87-9), and its connexion with any parliament is uncertain; one of the two entries on m. 10 (p. 89, no. 37) is a record of proceedings at Norham on 25 Ma/ 1291, which were continued at the Epiphany parliament of 1292 (p. 80, no. 10 (m. 4.)), and this membrane therefore was probably prepared for that parliament. The roll is evidently composite, but the membranes were in their present order when the fetus Codex was written. Roll no. 6. Printed Rot. Parí. i. 91-110. Used for fetus Codex, ff. 42-54 (omissions represent 142 lines in Rot. Parí.) : printed Ryley, Placita, pp. 114-152. Membranes i, 2, 4-6 contain the record of pleas at the Easter parliament of 1293. The matter recorded on m. 3 is certainly of later date (apparently July 1293) and this membrane is connected with roll no. 7, m. 8 (also of July 1293 : cf. p. 98 with p. 125). M. 7 appears to be connected with roll no. 7, mm. 1—3 : all deal with Scottish business. All seven membranes are transcripts, apparently in a single hand, possibly very little earlier than the fetus Codex for which they were used ; they were then in the same order as at present. Roll no. 7. Prinied Rot. Parí. i. 110-126. Used for fetus Codex, ƒ. 54-65 (omissions represent 15 lines in Rot. Parí.) : printed Ryley, Placita, pp. 152-186. Membranes 2-7 contain the records of pleas at the Michaelmas parliament of 1293. Although headed : ' In Parliamento Domini Edwardi Regis de Termino Pasche anno vicésimo primo,' m. i (or rather the original from which it was taken) appears to have been written for the Michaelmas parliament of 1293. All the membranes 1-7 appear to be in the same hand and to be, like roll no. 6, a later transcript. M. 8 is connected with roll no. 6, m. 3 : both as regards parchment and writing this membrane differs from the other membranes composing roll no. 7. The order of the membranes is the same as when the Fetus Codex was written. It should be noted that this roll and roll no. 6 appear to have been once filed together and to have been separated in modern times. Roll no. 8. Unprinted. Not used f or fetus Codex. Two membranes containing proceedings on Irish petitions at the Michaelmas parliament of 1293. Roll no. 9. Printed Rot. Parí. i. 127-131. Transcribed in fetus Codex, ff. 65-68 : printed Ryley, Placita, pp. 186-195. Membrane i contains enrolment of proceedings coram rege at Westminster on 22-24 July 1294 and at Fareham on 28 July 1294, with a note referring to the record of the proceedings at the August parliament of 1295 (see Rot. Parí. i. 132 ff). M. 2 contains the record of two cases coram rege : in one the proceedings are held on 14 and 25 June 1294 (to be continued subsequently in the August parliamentof 1295: Rot. Parí. i. 137 f.), while in the other they begin apparently late in July and terminate on 2 August 1294, the letters close which issued in consequence being dated 6 August (Cal. Close Rolls, 1288-96, p. 363) : this membrane is headed : * De Parliamento anno xxii.' M. 3 contains notes of decisions which must have been made late in June or early in July 1294 (see coram rege roll, Trinity 1294, K.B. 27/141), m. 7 ; Cal. Close Rolls, 1288-96, pp. 356, 357), but also a deed by John fitz Thomas clearly dated 8 August 1295 and presumably connected with the proceedings against him at the August parliament of 1295 (Rot. Parí. i. 135 ff.). It is to be noted that when used for the fetus Codex the present order of the membranes was reversed. These membranes may have been prepared for the August parliament of 1295 ; but we suspect unintelligent transcribing as in the case of rolls nos. 6 and 7. Roll no. IQ. Printed Rot. Parí. i. 132-142. Used for fetus Codex, ff. 68-75 (omissions represent 68 lines in Rot. Parí.) : printed Ryley, Placita, pp. 198-218. Three membranes (apparently transcripts) containing pleas in the August parliament of 1295. Roll no. n. Printed. Rot. Parí. i. 143-150. Used for fetus Codex, ff. 94-101 (omissions represent 197 lines in Rot. Parí.) : printed Ryley, Placita, pp. 225-239. Three membranes: a transcript of miscellaneous documents respecting the parliaments of Easter 1298, Lent 1300, Hilary 1301 and Midsummer 1302. For contemporary references to original rolls of the last three parliaments, see Appendix III B.

The Exchequer Parliament Rolls

XIX 149

Roll no. 12. Printed Ma itland, Memoranda de Parliamento. Used in part for Fetus Codex, ƒ, 102116 : printed Ryley, Pkcita, pp. 240-288, whence Rot. Parí. i. 159-181 (except portion on pp. 171-174, taken from Roll no. 13, m. 2). A composite roll. Membranes 10, n, 12 (Scottish petitions) and 14 (Irish petitions) must be excluded from the original roll. The rest of the nineteen membranes are with one exception (m. 9) guaranteed by the Fetus Codex. It is, however, not impossible that there was a division and that mm. 1-9 formed a separate roll of English petitions, while the remainder formed a roll of pleas; such a division is suggested by the arrangement of the Fetus Codex, which has a distinct break at f. 109 (Ryley, Plácito, p. 266). It should be noted, however, that English petitions are to be found on mm. 13, 17 and 18, as well as on mm. 1-9, while on the dorse of m. i is a ' Memorandum de statu regni Scotie.' M. 19 is an exhibit connected with m. 16. The membranes of Scottish petitions and the membrane of Irish petitions are in form and writing different both from each other and from the membranes of English petitions. There seems little reason to doubt that they were both made up and kept separately, just as rolls nos. 3, 4 and 8 were kept separate from other records of the parliaments to which they relate. As we have noted above, when discovered about a century ago, they were not joined to the other membranes now composing roll no. 12. As Maitland showed, the Scottish membranes are concerned not only with the Lenten parliament of 1305 but also with the Autumn parliament. He, however, believed the petitions of the two parliaments to be intermixed ; but the evidence seems to us to point to the conclusion that m. 10 contains petitions of the Lenten parliament and that mm. 11 and 12 contain petitions of the Autumn parliament. Maitland pointed out that a number of petitions must undoubtedly be referred to the Autumn parliament, and with one exception he found the corresponding entries on mm. 11 and 12 (Memoranda de Parliamento, pp. xviii if.). We can add further no. 353, which corresponds with an entry on the patent roll dated 16 October 1305 (Cal. Patent Rolls, 1301-7, p. 384), and no. 392, which is clearly some time later than an entry on the patent roll dated I April 1305 (ibid. p. 331). Again, the references to king David's laws (no. 333), to the constableship of Berwick (no. 338), and to the coronership of Lothian or Tynedale (no. 339) seem to be unmistakably connected with the business of the Autumn parliament (see Parí. Writs, i. 161 f.). Further, no. 312 (m. 11) seems to refer to what has happened in the previous parliament in consequence of no. 300 (m. 10). Maitland, however, contended that no. 272 (m. 10) was based upon a petition (E. 715) which bears the endorsement ' Petitiones Scocie liberate in parliamento mense Octobris anno xxxiii'; but this petition mentions a sum of £180 and more as due to arbalesters and archers of Kirkintilloch, while the entry on the roll mentions the sum of £152 only, and although when the entry on m. 10 was composed the petitioners were still at their post, in October they seem to have left, they ' unt servy le Rey a Kirketolau.' The conclusion seems to be that no. 272 belongs to Lent and that the October petition is not to be found on any surviving membrane. We have, by the way, a hint that at least one membrane of Lenten petitions has disappeared, for in the Autumn parliament, as it would seem, Adam son of Richard of Corbridge referred (no. 360) to a petition presented in the last parliament, which is not on m. 10 ; and it would not be surprising if one or more membranes of Autumn petitions had perished also. Maitland had a further reason for refusing to draw a line on the surviving three membranes as dividing the Lenten from the Autumn petitions. He held that while there were wardens in Scotland in Lent, there was a lieutenant in the Autumn, and that it would be a very strange thing if in writing up the membranes a settled usage were not followed (Memoranda, pp. xxi f.). Therefore since custos and locum tenens are to be found on each of the three membranes, it seemed to follow that Lenten and Autumn petitions were intermixed. But in actual fact custos and locum tenens were quite evidently convertible terms, and the use of one or the other does not enable us to separate Lenten from Autumn petitions. For example, the endorsement on Ancient Petition no. 4546 reads ' inquiratur per Custodem,' the corresponding enrolment (no. 323) 'inquiratur per tenen tern locum Regis.' In another case (no. 327) the endorsement on the original petition and the corresponding enrolment read ' Habeat Breve Custodi,' while the resulting letters close are addressed to the lieutenant. Again, two related petitions (nos. 390 and 397) have identical replies except that for ' Custodi' in one, ' tenenti locum Regis in Scotia' is substituted in the other. It should be noted too that Aymer of Valence is

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indifferently styled and styles himself lieutenant or guardian or both (Cal. Documents Scotland, ii. 478, 485, 502, 508, 515, 516, 519-21). Our conclusion therefore is that m. i o is what its heading proclaims it to be, a membrane of Scottish petitions of the Lenten parliament, but that mm. n and 12, which are without heading or endorsement, are two membranes of a roll of Scottish petitions of the Autumn parliament. The membranes of roll no. 12 have been rearranged since Maitland printed it and an older arrangement reverted to : this arrangement seems merely perverse. The sole authority for the primitive arrangement of the membranes is the Fetus Codex. As Maitland noted, some membranes which apparently followed m. 18 are not now attached to the roll. One of these appears to be Exch., Parí, and Council Procs., 1/18 (printed Memoranda, pp. 314 ff.), but this is not annexed to the roll, as stated in English Historical Review, xxxvi. 554. One membrane which apparently formed part of a roll of Irish and Channel Island petitions of the Lenten parliament of 130 5 is preserved in the Bibliothèque Nationale (printed by J. Havet, Cours Royales des lies Normandes, pp. 197 ff.). The last entry on this membrane (ibid. pp. 202—5) is strictly speaking aplacitum, although it is connected with a petition presented at this parliament (ibid. 201, no. 14 bis) ; there is a Postea of proceedings at the Autumn parliament of 1305. The whole of this entry appears also in the Fetus Codex (Ryley, P tacita, pp. 285 ff.), but it may well have been written upon more than one membrane, and the membrane which was before the writer of the Codex may be lost. This hypothesis seems the more likely because we have instances of duplicate entries elsewhere (e.g. roll no. 13, m. 2 ; roll no. 21, m. 5 : below, p. 131 f.), and also because the balance of probability seems to be in favour of the suggestion we make above that the rolls of Scottish and Irish petitions were kept separate : it is to be noted that the Codex takes nothing from Irish or Channel Island petitions. If the Paris membrane had been incorporated in a roll which was before the writer of the Codex, clearly Mr. R. L. Atkinson's suggestion is inadmissible, ' that before the roll was sewn up, the Guernsey (sic) membrane was detached and sent to Mont St. Michel' (English Historical Review, xxxvi. 556) ; we suspect in any case that the membrane arrived at Mont St. Michel in a more roundabout way and that, before it reached the abbey, it had become intermixed, while in official hands, with other documents connected with the long drawn out suit concerning the manor of St. Clement (cf. Rot. Parí. i. 421 ; Cal. Close Rolls, 1327-1330, p. 270). Roll no. 13. Printed Rot. Parí. i. 171-4, 183-4. Membrane i used for Fetus Codex, f. 68 : printed Ryley, Placita, pp. 195-7. The two membranes have been annexed in modern times. M. i is clearly a transcript of proceedings in the Autumn parliament of 1305, prepared several years later ; it includes copies of writs of 6 October and 13 December 1310 (Roí. Parí. i. 184). M. 2 is a counterpart of m. 15 of roll no. 12, except that the Postea differs (Rot. Parí. i. 173-4 : Memoranda de Parliament, p. 263) : to it is attached the original writ to the sheriff of Northampton (printed Rot. Par/. I . 171). Roll no. 14. Printed Cole, Documents, pp. 129-38. Not used for Fetus Codex. Four membranes. A transcript of proceedings prepared for the Hilary parliament of 1307, with final process at this parliament (m. 4). Another transcript is to be found in the Red Book of the Exchequer (see Table of Contents prefixed to Hall's edition, p. cxxxvii). Roll no. 15. Printed Rot. Parí. i. 190-1. Used for Fetus Codex, ff. 131-2 : printed Ryley, Placita, pp. 322-6. A fragment of the roll or rolls of the Hilary parliament of 13 07, the transcript of which fills ff. 124151 of the Fetus Codex; only part of one membrane and a guard now remain. Roll no. 16. Printed Rot. Parí. i. 216. Not used f or Fetus Codex. One membrane containing notes of exchequer business adjourned to the Hilary parliament of 1307.

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Rol i no. 17. Unprinted. Not used for Fetus Codex. Two membranes of petitions of the August parliament of 1312. The membranes are without date, but this can be determined with little difficulty. A petition on m. i is presented by John Leek archbishop of Dublin (November 1310- 10 August 1313) and the resulting pardon is dated 22 May 1313 (Cal. Patent Rolls, 1307-1313, p. 595) ; a petition by William de Wergrave asking for restitution to the office of coroner of Eskdale must be after 20 December 1311 (Cal. Close Rolls, 1307-1313^. 390); a petition by Bartholomew de Welle, burgess of Lynn, referring to an action before Richard de Welleford, sheriff of London (1311-1312), resulted in a commission dated 8 December 1312 (Cal. Patent Rolls, 1307-1313, p. 544). On m. 2 are recorded the proceedings on a petition by Maurice de Berkelee who is adjourned to be before the council at Westminster on the morrow of Michaelmas and again on the morrow of All Souls. It will be observed from the table of Edward II's parliaments (above, p. 86) that the only possible parliament which accords with these dates is that of August 1312. Roll no. 18. Printed Rot. Parí. 1.288-333. Not used f or Fetus Codex. Twenty-three membranes of the Hilary parliament of 1315. Mm. i and 2 contain enrolments of proceedings on petitions which have been ' coram Magno Consilio' but have been adjourned ' coram Consilio' in the Easter term. Mm. 3—15 contain enrolments of petitions heard before the Magnum or Totum Consilium, together with certain other memoranda (pp. 298, no. 36 ; 301, no. 53 ; 306, no. 72). Mm. 16-23 contain enrolments of English petitions heard before the auditors; certain of these are to be found also on the preceding membranes (nos. 7, 9, 10, 11, 64, 86 corresponding to nos. 159, 210, 133, 171, 158, 137). On m. 20 there are notes of the appointment of commissioners to hear and determine complaints against certain ministers (p. 325, nos. 173, 178). Roll no. 19. Printed Rot. Parí. i. 334-49. Not used for Fetus Codex. Nine membranes of the Hilary parliament of 1316. Mm. 1-8 contain enrolments of petitions with consequent responses or proceedings before the council, together with certain other memoranda (pp. 343, no. 23 ; 346, no. 34). M. 9 is an exhibit attached to m. 8. The proceedings in the case of Hugh de Courtenay on m. i (pp. 334 ff.) are continued from the Hilary parliament of 1315 : the printed heading is misleading. Roll no. 20. Printed Rot. Parí. i. 350-364. Not used for Fetus Codex. The first three membranes and perhaps the fourth are, as the heading to m. i states, memoranda, written by William de Ayremynne and belong to the Hilary parliament of 1316. M.I refers to another membrane for the text of the Statute of Sheriffs, and this is to be found among other matter on m. 3 (it is also to be found on roll 19, m. 6 (Roí. Parí. i. 343, no. 23), as well as on the Statute Roll). M. 4 contains the record of the proceedings in the case of the countess of Gloucester, much of which took place after the parliament; but the record of these later proceedings seems to be a Postea. It is doubtful whether any one of the other four membranes is in any sense a roll of this parliament. Mm. 5 and 7 contain enrolments of proceedings before the council at Westminster in the Easter term of 1316. M. 8, although beginning with the recital of a petition presented at the Hilary parliament of 1316, is a record of proceedings before the council at Westminster in the Trinity term and of later proceedings—the whole is in one hand; another copy of the same proceedings is in Chañe., Parí, and Counc. Procs., 4/i6. M. 6 contains a record of the negotiations between the council and the representatives of the count of Flanders which were concluded at the Westminster parliament of Hilary 1315; the subsequent negotiations here noted (p. 259), following upon the outbreak of war between Flanders and France and the expulsion of the Flemings from England, must have taken place within forty days of the Exaltation of the Holy Cross (Foedera, ii. 277, 280), i.e. before 24 October 1315. Roll no. 21. Printed Cole, Documents, pp. 1-46. Apparently used for Fetus Codex. Eleven membranes of the Michaelmas parliament of 1318. Mm. i and 2 contain memoranda of proceedings. M. 3 contains the lists of various committees (as we should say) and is related to the preceding membranes. The remaining membranes 4-11 (with the exception of m. 6) contain

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enrolments and notes of petitions. It seems clear from the heading of m. 4 (p. 13) that the petitions were intended to be enrolled separately from the other memoranda. Note, however, that certain petitions were entered on the dorse of m. I. Note also that apparently the Gascon petitions were not kept apart from the others although expedited by a separate body of auditors (pp. 13, 29). There is some indication that a duplicate roll of petitions originally existed : all the petitions on m. 5 (pp. 17—21) are to be found enrolled also on m. id and m. 7 (pp. 5, 6, 23-5). M. 6 contains an incomplete transcript of proceedings in the case of Hugh de Courtenay begun in the Hilary parliament of 1315 and continued in the Hilary parliament of 1316 (Rot. Par!, i. 334 ff.) : there appears to be no doubt that this case came before the Michaelmas parliament of 1318 (Maitland, Memoranda de Parliamento, p. 345),1 and we may suppose that this transcript was prepared for the purpose. Certain membranes are missing : an entry to which reference is made in the margin of m. i id (p. 46), but which is not now to be found, is transcribed in a cartulary of Ely priory (Add. MS. no. 41612, £53). It is to be assumed also that a membrane containing the further proceedings in the case of Hugh de Courtenay is lost 2, as well as a membrane containing an entry corresponding to the item in the index of the Fetus Codex—' Stat. Ebor. et Stat. Lincoln.' (Maitland, Memoranda, p. 345 : cf. Statutes of the Realm, i. 171-4, 177-9). Although it seems clear that the compiler of the Fetus Codex employed this roll or a similar one (Maitland, Memoranda, pp. 344-5), yet the marked entries on mm. 8-13 are not noted in the table of contents of the Codex and the entries identified by Maitland do not seem to be marked on the roll. Roll no. 22. Printed Cole, Documents, pp. 47-54. Apparently used for Fetus Codex. Two membranes of the Easter parliament of 1319. M. i contains the record of further proceedings on petitions presented at the preceding parliament. M. 2 contains the enrolment of petitions and responses at this parliament. The compiler of the Fetus Codex appears to have had before him these or similar membranes as in the case of roll no. 21 (Maitland, loc. cii.}, but there is not perfect concordance between the marked entries on the roll and the table of contents of the Codex. Roll no. 23. Used for Fetus Codex, ff. 78-93: printed Ryley, Placita, pp. 386-430, whence Rot. Parí. i. 365-86. Ten membranes of the Michaelmas parliament of 13 20. Mm. 1-4 contain memoranda and pleas. Mm. 5-10 contain the enrolment of petitions and responses; but although English and Welsh petitions were dealt with in one group and Gascon, Irish and Channel Island petitions in another, the entries appear to be distributed indifferently over the membranes. These ten membranes correspond exactly with those used for the Fetus Codex but are not now arranged in the order observed by the compiler. The Codex now breaks off abruptly at the end of a quire (see Maitland, loe. di.*), in the middle of an entry appearing at the top of the dorse of the present m. 5. An original petition and writ relating to this entry are filed between m. 9 and m. 10. Roll no. 24. Unprinted. Not used*f or Fetus Codex. Two mutilated membranes of the Midsummer parliament of 1321. M. i contains memoranda of receivers and auditors of petitions, the precedent of the preceding Michaelmas being observed (see Rot. Parí. i. 365), followed by ' Les articles proposees countre monsieur Hugh le Despenser le fuitz et monsieur Hugh le Despenser le Piere en cesti parlement oue lagarde des pieres de la terre ' (Statutes of the Realm, i. 181-4 ; Cal. Close Rolls, 1318-23, pp. 492 ff.): on the dorse is' La supplicacion des grantz du Roialme faite a nostre Seignur le Roi pur acorder et assenter de faire estatut de pardoun sur les madres qui sensuent' (see Cal. Close Rolls, 1318-23, p. 495). M. 2 contains the act of indemnity, as on the Statute Roll, from Come nadgaires to des chases susdites (Statutes of the Realm, i. 185-7). Cf. Rot. Parí. i. 336. It had been agreed in the Hilary parliament of 1316 that the case should remain over until the next parliament, and no parliament had been held in the interval. 2 What appears to be a transcript of the entry on the lost folios of the Fetus Codex is to be found in Exch., Parí, and Council Procs., roll no. 20. 1

The Exchequer Parliament Rolls APPENDIX II

XIX 153

PARLIAMENT ROLLS NO LONGER EXTANT

We have already drawn attention to many signs which indicate the one-time existence of lost rolls containing a record of parliamentary business. Whilst there is a slight suggestion that such may have existed for the earliest parliaments of Edward I,1 there can be no doubt that rolls of Irish petitions for the Hilary and Easter parliaments of 12 go 2 and of English petitions for the Easter parliament of that year,3 once extant, have now vanished. The evidence for the existence of duplicate parliament rolls during the tenure by Gilbert of Rothbury of the office of clerk of the council is beyond dispute, although few duplicates have come down to us.4 We have found reason for suggesting that membranes of Scottish petitions for both the Lent and the Autumn parliaments of 1305 are lost;5 and rolls of Gascon petitions for these and other parliaments 6 may likewise have disappeared; whilst there are indications that we possess a membrane of an otherwise lost duplicate roll of petitions for the Michaelmas parliament of 1318.7 Of the roll or rolls of the Hilary parliament of 1307, which the compiler of the Fetus Codex had before him, but a trifling fragment remains.8 The rolls of the Candlemas parliament of 1324, to which we have a contemporary reference, are entirely lost.9 To these instances we can add a few further pieces of evidence. In 1300 the barons of the exchequer were informed by a letter close that the king had remitted £254 in pollards of a debt of £762 due to him from the prior of Okeburn, consenting that he should pay only one mark sterling for each pound owing. The entry on the close roll, dated i April 1300, is warranted ' By roll of the Council'10 and the concession is, in fact, entered on m. i of Exch. Parí. Roll, no. u, as having been made in the Lent parliament of I3OO.U But this membrane, containing proceedings in the parliaments of Easter 1298, Lent 1300 and January 1301, is clearly not contemporary,12 and we are forced to the conclusion that there was confected a contemporary roll of proceedings which no longer survives. Again, on the Morrow of the Ascension, 1301, Roger Brabazon stated before the council at York that he had presented a petition in the parliament at Lincoln in January 1301, relating to his advowson of East Bridgford in Nottinghamshire ; it had been referred thence for determination to the treasurer and council at York at Ascensiontide. Thereupon, the rolls of petitions of that parliament were searched for information concerning his petition and confirmation of his statement.13 No such rolls, however, have been transmitted to us. And lastly, some memoranda relating to exchequer business in 1302 contain the information that exchequer writs were to be sent out for collecting such debts as the citizens of London still owed after there had been taken into account the allowances ordered by the king ' which appear in the roll of parliament.'M This is clearly the parliament of Midsummer I302,15 but no roll survives with which we can identify the one mentioned. It is very probable that further research will reveal other instances of vanished parliament rolls. 1

2 3 See above, p. 138. Above, p. 136. Above, p. 147. 5 * Above, pp. 135-7. Above, p. 149. 6 We have satisfactory evidence for the existence of files of Gascon petitions for 1290 (above, p. 134, n. 2), 1305 (Maitland, Memoranda, p. 327, no. 12), and 1307-8 (Chanc. Misc. 25/2/1 : this is endorsed ' Peticiones Vasconie post Pascha anno etc. primo expedite') : we think these files most probably imply enrolment. 7 8 9 Above, p. 152. Above, p. 150. Above, p. 142, n. 4. 10 u 12 Cal, Close Rolls, 1296-1302, p. 345. Rot. Parí. i. 144. Above, p. 148. 18 Exch., Parí, and Council Procs. 1/14 : ' Et inspectis rotulis peticionum liberatarum in parliamento predicto et deinde hue retornatarum, compertum est quod. . . .' This record is to be found much more legibly on £.368/72 (L. T. R. Mem. Roll, 29 Edw. I), m. 32. 14 Exch., Parí, and Council Procs., 1/16 : ' Memorandum quod statim in primo aduentu Thesaurarii ad scaccarium exeant breuia de scaccario ad leuandum debita illa que ciues London' debent de residuo xx mill' marcarum post allocaciones iam preceptas per regem que patent in Rotulo de parliamento.' 16 The date of the document is fixed as not long before 23 August 1302 by Cal. Close Rolls, 12961302, p. 553.

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APPENDIX III—MEMORANDA OF THE MICHAELMAS PARLIAMENT 1283' A. Notes of decisions taken—apparently by the Council'. Chañe., Parí, and Council Proc., 2/2. Responsiones ad peticiones apud Acton' Burnel' in parleamento post festum Michaelis anno regni regis Edwardi vndecimo [et] quedam alia negocia ibidem expedita et precepta. Preceptum 2 est quod aliquis assignetur ex parte Regis et aliquis ex parte executorum domini Patricii de Chawrth' ad swpet\vtdendum\ et appreciandum bona et catalla ipsius Patricii iuxta verum valorem et ad inquirendum ad quorum manus. Preceptum Escaetori citra Trentam quod restituat Eymerico Peche seisinam [manerii] de Steple in Essexia quod Hugo filius Otonis de eo tenuit.3 Associetur Ricardus de Boyland' lohanni de Vallibus loco Roberti Baingnard ad attinctam capiendam quam Prior de Baynham &n[ainauit] versus Willelmum de Pakenham. Memorandum 2 de ccc.xxxj libris de tribus terminis videlicet de termino sancti Michaelis anno regis x. Et de Pasch' anno xj. Et' 4 termino sancti Michaelis anno xj de feodo constabularii Douore et stipendio seruientum et capellanorum etc. Sciatur a domino Rege si velit quod Radulphus de Hengham adeat Londonias cum placitis Regís. nichil Loquatur 5 cum rege de debitis Philippi de Stanburn' et Hugonis Bontyng' installandis scilicet de ce marcis. Datus2 dies Wygornensi episcopo et abbati Westmonasterii usque ad festum sancti Andree coram rege.6 Homines2 de Staunford' de assisa pannorum : habeant diem usque a die sancti Michaelis anno regni regis xij in unum mensem et interim faciant pannos iuxta assisam suam pristinam. Et habeant breue patens. De 2 quodam b.urgagio dando priori et conuentui Bathoniensi. De 2 negocio abbatis sancti Augustini Cantuariensis. De 2 peticione domini Wygornensis Episcopi super licencia habenda feoffandi capitulum Eboracensem de manerio de Bur[/]e 7 in det[rítaentum] iusticie quod intollerabile est, si rex placuerit. Cestr' Terre Isabelle que fuit vxor Philippi Burnel' capte in manum Regis propter transgressionem ipsius Leyc'et remaneant in manu Regis usque ad parleamentum post Pascha. Et veniat tune coram Rege et Rex Northt' dicat voluntatem suam etc. Memorandum 2 de xx libris de firma concessa lohanni de Britannia in comitatu Linc[olnie] ad voluntatem Regis: veniat Nicholaus de Stapelton' apud Westmonasterium et ostendat cancellario et consiliode hoc quod vicecomes non permittit eum habere balliuam de qua firma leuatur iuxta voluntatem regis. Et mandetur vicecomiti quod veniat etc. De 2 debitis domini Hugonis Louel atterminandis. Fiat De debitis domini Willelmi Martini scilicet c. li'—1 marc' per annum.8 Fiat De debitis domini lohannis de Columberiis scilicet iiijxx li'—xx li' per annum.9 De 2 prorogacione contencionis inter dominum Wfillelmum] de Valencia et comitem Herefordie. De 2 attincta pro Comité Cornubie versus lohannem de Hasting'. De manerio de Norton' tradendo Comiti Warr[wici]. Escaetori quod inquirat de valore et remittat. De 2 mis{Vn£wv//¿f] perdonatis priori de Derhurst ad instanciam abbatis sancti Dyonisii in Francia. B. Notes of the allocation of business and of decisions taken : Chañe., Parí, and Council Proc., 2/3. Negocium dornini comitis Cornubie committitur Waltero de Amodesham. Negocium Hugonis de Plessetis committitur Wfillelm] de Hamelton. Muiier qui sequitur pro capellano imprisonato apud Notingham adeat Nicholao de Stapelton' quia preceptum est ei quod deliberet eum. 1 References are given to original petitions etc. where these survive. 2 3 A cross has been made in the margin against these entries. Anc. Petn. 6741. 4 5 Thus in MS. Loquatur has been crossed through. 6 Cf. Cal. Patent Rolls, 1281-92, pp. 90 f.; Regisier of B iskop Godfrey Giffard (Worcestershire Hist. Soc.), pp. 164-203. 7 Cf. Cal. Patent Rolls, 1281-92, p. 162; Register of Bishop Godfrey Giffard, pp. 191, 260 f. 8 9 Anc. Pet. 6277. See below, Section B, final paragraph, 1. 4.

The Exchequer Parliament Rolls

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De Thoma de Tilteg' mittendo apud Cestriam et cartis querendis. De uxoribus Thome de Withinton' et Willelmi Coci: fac[/
Peticiones infrascriptorum mittuntur Hugoni de Kendale expediende : videlicet peticio Rogeri Tyrel; peticio communitatis Bristollie ; * peticio magistri Thome de Berklee ; peticio Hugonis de Beaumis; hominum de Brideport; a Ade Wyndel et sociorum suorum ; 3 item Hugonis de Beaumis ; Alani de Tyngeston'; lohannis de lingham ; Nicholai de Audithel'; Prioris de Hextildisham ; Henrici Fiket; 4 magistri R de Pagham ; lohannis le creper'; fratrum de Carmelo ; negocium de Hauerford'; Edmundi de Eyncurt; Willelmi de Geytinton'; lohannis Crispí; 5 lohanne vxoris quondam Rogeri de Pridlinton'; 6 lohannis filii Walteri de Monte gomery; 7 Willelmi de Albiniaco. Peticiones Mulieris de Hibernia; 8 Magistri W de Farnham; Domini Nicholai. . . . 9 Hawisia Tonere habeat breue de ingressu.10 Johannes de Columbariis xx li' per annum.11 Thomas deThorneye et alius de Karleton' detenti apud Eylesbur' deliberentur per iustic[iarios].12 Hawisia Wake. Abbas de Hagham habeat licenciam includendi iiij acras prati.33 Villa Sallop[esbirie] . . .9 Habeat pauagium ad triennium.14 Abbatissa de Lacoke quod possit terram etc. C. Notes of decisions taken : Ancient Petition, no. 6991 B. Sex equi domini lohannis de Carleton' et sociorum suorum athachiati sunt et hernesia sua. plegius cuiuslibet alterius. Walterus films Walteri de Faucunberge Thomas Maunsel. Symon de Kancia. Garciones Rogerus de Kirkeby. Thomas de Wyresdal' Rogerus de Cotingham De conbustione bercarie Henrici borrey

H. de Hamelton

Memorandum de negociis burgensium Salop[esbirie]15 videlicet de cartis libertatum [suarum] confirmandis. Et de pauagio concedendo ulterius per dominum Regem. Et de tholoneo molendinorum patrie. 1

2 3 Anc. Petns. 4412, 4413. Anc. Petns. 4416, 4417. Anc. Petn. 7432. 5 6 Anc. Petn. 5560. Anc. Petns. 4422, 4901. Chanc. Misc. 14/4/27. 7 8 Anc. Petn. 6279. Anc. Petns. 4418, 4419. "Mutilated. 10 n 12 Anc. Petn. 7186. See Appendix IV A. Anc. Petn. 7187. 13 14 Anc. Petn. 5782. Anc. Petn. 6991 A; see below, final paragraph. 15 These are the three requests contained in Anc. Pent. 6991 A: Burgenses ville Salop[esbirie] petunt confirmacionem cartarum suarum a domino rege. Item petunt quod pauagium eis concedatur sicut prius eis concessum est ad voluntatem domini regis. Item petunt quod de gracia Domini Regis habeant molturam molendinorum patrie circa villam ad modum et consuetudinem ville Londoniarum. Responsum est in alia peticione. The duplicate petition endorsed with the reply seems no longer to exist: but see above, Section B, penultimate line. 4

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It seems desirable to say something in general about the surviving rolls and memoranda, specially devoted to the recording of parliamentary business, which begin to accrue in considerable quantity in Edward I's reign. We are not without some information upon the preliminaries to parliaments under Henry III and some memoranda of business conducted there: but, for the most part, we have to rely upon unsystematic notices in chancery and exchequer enrolments devoted to the general work of those departments, supplemented by casual entries in the imperfect series of plea rolls. Under Edward I we begin to get what have been called rolls of parliament. To the historians of the nineteenth century these rolls were a great mystery, in a sense a great disappointment. Coming to these records, as they did, with preconceived and anachronistic ideas of the nature of medieval parliaments, it seemed to them that the record-makers of those days had been stupidly perverse. Without attributing to Stubbs any extraordinary degree of myopia, let us cite his description of the parliament rolls of Edward I: The name of parliament, the king's parliament, belonged to the sessions of each of the three bodies thus distinguished, the terminal session of the select council, the session of the great council, and the session of the commune concilium of the three estates. The historians [i.e. the contemporary chroniclers] distinguish between general and special parliaments, the former being the full assembly of the commune concilium in the completeness recognised at the moment; the latter the royal session for the dispatch of business. In the Rolls of Parliament the confusion of name and distinction of function are still more conspicuous, for most of the early documents preserved under that name belong to the sessions of the council for judicial business, held, as the Provisions of Oxford had ordered, at fixed times of the year, and resembling in idea, if not in fact, the crownwearing days of the Norman kings' (Constitutional History,, ii.274). Stubbs continued with a purely imaginary description of the difference 'between the functions of the king's council and those of the national council', and he commented that, 'whilst the constitutional reforms of Edward I were gradually taking their final shape, it is not surprising that some confusion should arise'. We need not, however, make any further quotation from a rather lengthy exposition, which those curious in the antiquities of historiography may easily find for themselves (ibid.-, pp.27'4-279). Stubbs was but elaborating upon the description given to the same rolls by the Lords Committees who reported upon the dignity of a peer (Lords' Reports, i. 169-171). But the air of perplexity over the failure of the rolls to give a picture of an assembly of the 'three estates', which everyone then believed a properly constituted parliament should have been, is all his own, for the Lords Committees, if mistaken on sundry points, were somewhat less confused. Like his fellow historians, of whom he was the doyen, Stubbs had very limited knowledge of the structure of administration or of what we should call today the science of archives. Diplomatic, which we now believe to be essential in the understanding of historical documents, was then little studied in England: such esoteric learning was best left to foreigners. There had been a sad decline from the days of the archive-historians of the seventeenth and eighteenth centuries, of whom Thomas Madox was the greatest. Nor were the official custodians of the public records noticeably better informed. They applied their zeal not so much to remedying the dispersals and disruptions of the past as to distributing in arbitrary groupings the contents of such archival collections as neglect had preserved intact from the Middle Ages. We must exclude, however, from condemnation such scholars as Francis Palgrave, T.D. Hardy and Joseph Hunter, who were more concerned with editing than with arranging the records. In due course another generation of historians and archivists arose who were prepared to learn

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before they taught: but in the meantime incalculable mischief had been wrought, for established error is very hard to correct. Even in this day of enlightenment students are still bidden to consult Stubbs as they would an oracle. It is for this reason that we begin our discussion of Edwardian parliaments with a description of the so-called 'Exchequer Series' of parliament rolls and other related records, in the belief that the extent and nature of the evidence - in this branch, as in all branches, of science - must be understood before it is interpreted. This series of rolls is drawn from the reigns of the first and second Edwards, and it will be best to deal with the records of both reigns together, for in 1327 there is a significant change, and it is convenient for our present purpose to continue to that year. It should perhaps be made plain from the outset that we are not primarily concerned with matters of high politics or legislation. Such matters occupied some part of the activities and deliberations of the council in parliament but, as we shall see, not a great deal of their time. We are concerned, in the first place, much more with litigants and suitors, justices, ministers and clerks, with the notions of those who had occasion to be precise and to pay regard to technicalities. When we have learned to understand this aspect of parliament, we shall be better able to understand and to bring into focus those aspects of parliament which have principally engaged the attention of historians. The parliaments of Edward I have, as we have indicated, left behind them a formidable mass of documents, fragmentary though they may be. 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 from being done in time of parliament. Then there are writs, which are 'parliamentary writs' in the common understanding of the term, to summon barons, clergy, counsellors, knights, burgesses and so forth to a consultation or to give consent or whatever the phrase may be. Since a great deal of business was transacted in time of parliament and since a parliament sometimes lasted for several weeks and might be attended by a great number of people, it is 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 that has survived or that we have any right to suppose ever existed: this we know because a number of original writs exist for which there are no corresponding enrolments where we might expect to find them. Thus, of the writs of summons for the first parliament of Edward I only that addressed to the archbishop of Canterbury was enrolled (Parí. Writs, i.l: Cal. Close Rolls, 1272-1279, p.299). But fragments of the writs to the sheriffs, summoning knights and burgesses, have been recovered in fairly recent years (Eng. Hist. Rev., xxv 23 Iff.). But for most of the parliaments recorded in the first volume of the Rotuli Parliamentorum the writs of summons are missing, a fact that A. F. Pollard discovered, though he entirely mistook its significance (Evolution of Parliament, p.47; and cf. below, XXVI, 46-47). We observe, further, that, even when writs are enrolled, there are signs now and again that the enrolments are incomplete (cf. Parí. Writs, i.140; Il.ii. 19, 81,120 215-216). 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 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 mention the word 'parliament' and only occasionally are of assistance in reconstructing the history of parliament. What these documents can be made to tell - the surviving writs and petitions, the memoranda and the instruments we can link with them - has already appeared. But these are not the

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130,

133,

134,

137,

137, 138, 139, 140, 141, 142,

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documents that have attracted attention, apart from the comparatively few writs of summons that happen to be enrolled or to have survived with the sheriffs' returns. The documents that have been principally studied as the basis of any detailed account of parliament have been the rolls of parliament, supplemented to some extent by the notices of such parliaments as chanced to find a place in the better known chronicles. What then do these rolls contain? 1.7 We would not now cite the Modus as evidence for the reign of Edward II: see Sayles, 'The Modus Tenendi Parliamentum, Irish or English?' in England and Irelandin the Later Middle Ages (ed. James Lydon: 1981) for the argument that it was originally an Irish tract ot Richard IPs reign, which was later badly botched in making the English version. n.10 King's Bench Roll, no.237 (Trinity 1319), m.72d: the grant of the earldom of Cornwall was revoked in parliament at Easter 1319 'et quod istud iudicium intratur in rotulis parliamenti et in cancellaria et exinde mittatur ad scaccarium et ad utrumque bancum, et in eisdem scaccario et bancis irrotuletur in memoriam perpetuam'. n.2 For a file of petitions still in their original order see Ancient Petitions, nos. E. 107-248. No. E. 107 served as a guard and reads 'Petitiones retórnate ad scaccarium de parliamento regis Westmonasterii in octabis sancti lohannis Baptiste anno regni regis Edwardi tricésimo', cf. L.T.R. Memoranda Roll, no. 72, m.31: 'Memorandum quod inter peticiones hie ad scaccarium retornatao de parliamento regis Lincolnie' (1301). Ancient Petitions E.249-261 are connected with the Lent parliament of 1305 and represent apparently part of a file of Gascon petitions The following concordance may be noted: Ancient Petitions nos. 532-5,538-540, 542, 544-547, 549-550, 552-557, are identifiable with petitions in Rot. Parí. i. 75-87; nos. 558-563, 565-573, 575-587 with ibid., i. 90-98; nos. 593-619, 621646 with ibid., i. 175-191; nos. 663-674, 677-689 with ibid., i. 378-383; nos. 690-709, 711-712, 714-723, 725-726, 728-776, 778-788, 790-798, 800-803, 805-807, 810-811, 813-817, 819-820, 822-855, 857-867 with ibid., i. 384-418. n.2 Rothbury's rolls probably passed to the exchequer, for in 1330 the treasurer and chamberlains were ordered to search the rolls and memoranda of Gilbert of Rothbury, 'nuper clerici ipsius avi nostri de consilio suo' (King's Bench Roll, no. 271, m. 99A). n.3 Chancery Warrants 316/18100: Wooler, clerk of the rolls of chancery, was ordered to search the parliament rolls of the time of Edward I and Edward II for petitions put forward by Hugh Courtenay concerning his rights in the Isle of Wight (16 February 1347). Again, Placita in Cancellaria, file 2, no. 9 (1): a writ of certiorari, dated 12 May 1355, to the exchequer for the record of the parliament of 1307 relating to the peace treaty between Edward I and the Scots: 'scrutatis rotulis et memorandis scaccarii predicti premissis tangentibus, tarn rotulis parliamentorum quam aliis'. The information was to be sent to the chancery; ibid., no.9 (5): ... compertum est in quodam rotulo de parliamento tentó apud Karliolum Forma pacis Scocie in adventu lohannis Comyn et aliorum (as in Rot. Parí. i. 21220- The rolls of the Carlisle parliament were examined concerning the advowson of Simondsbury church (RotParí., i. 339). n.9 Roll no. 17 is now printed in Richardson and Sayles, Rot Parí. Anglic Hact. Ined.,pp. 56-59. n.3 Above, V. 48ff. n.5 See also Sayles, King's Bench, iii. 192. n.7 printed Richardson and Sayles, op. cit., pp. 8-11. n. l For ante read Above, V. 137. n.2 For ante read Above, V. 15If. n.2 For ante iii read XI. 112, n.5. n.3 Above XIII. 306 n. n.4 Cf. Chancery Misc. Inquisitions, file 92, no. 23 (1): Petition of Joan, widow of Walter Colpeper: endorsed 'Quia peticio extracta de filaciis casualiter amissa

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fuit, ista peticio innóvala fuit per rotulum W. de Herlaston', sicut ipse recognosscit' (1324). 143, n.4 Above, VI. 147, n. l For ante read Above, V. 145. 148, Roll no.8 Printed Richardson and Sayles, op. at., 33-45. Roll no. 11 Two membranes have been found relating to the Midsummer parliament of 1302. The first is a transcript of 36 English petitions with the answers to them. More than a score of the original petitions still survive. The second is a transcript of 28 Irish petitions with answers. At least four of the original petitions are extant. These membranes are now termed 'Roll no.25'. 149, Roll no. 12 Since this analysis was printed, two additional membranes have been found and added to the roll in July 1958 from unsorted miscellanea. Membrane 13 contains Scottish petitions presented at the autumn parliament, and it was abstracted by Bain in Cal. Documents Scotland, iv.no. 1815, when its reference was Exchequer, K.R. Ancient Miscellanea (Miscellaneous), bundle 939. These petitions follow that numbered 404 in Memoranda de Parliamento, p. 232. Membrane 16 contains Irish petitions presented at the same parliament. They follow that numbered 448 in the Memoranda, p. 254, and have been printed in 1971 by G. Hand in Procs. Roy ál Irish Academy, 71. C. 1-17. 151, Rollno.17 Printed Richardson and Sayles, op. at., 56-59. One membrane of unprinted petitions has since been found, and is now termed 'Roll no. 26'. 1.12 For above read XVI. 85-88. Roll 19 Two membranes containing eighteen petitions, with answers, presented in the Hilary parliament of 1316, of which three survive. These membranes are now termed 'Roll no. 27'. Roll 21 A twelfth membrane has been found of petitions heard before the king and the great council. It should follow Cole's text at p. 46. 152, Roll 24 Printed Richardson and Sayles, op. cit., 92-93. 153, 1.12 Petition of John de Beauchamp of Somerset in 1307 (cf. Cal. Close Rolls, 13021307, p. 486) which is endorsed: Per testificationem Principis. Littera Principis liberatur Willelmo de Ayremyngg' pro warranto suo de cancellaria et irrotulatur in rotulo parliamenti. 1.33 Chancery, Parí, and Council Procs., roll 10: in the February parliament of 1324 'concprdatum fuit quod predicta recorda et processus in rotulis eiusdem parliamenti et in rotulis cancellarie ipsius domini regis irrotulentur ad perpetuam rei memoriam'. This refers to the judgements passed against Thomas of Lancaster and his adherents (Sayles, 'The Formal Judgements on the Traitors of 1322' in Speculum, XVI 57ff.) 154, 1.5 For Chawrth read Chawrch. 155, 1.13 The petition of the prior of Hexham is no. 5789. The petition of John le Crepere is no. 4901, as in note 5. 1.14 The petition of John Crispi is no. 4422. n.5 Delete 4422.

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XX

The Custody and Publication of the Parliament Rolls We turn to other aspects of the Parliament Rolls. Let us now say something of their custody, for that had great bearing on the manner in which they came into print. There is no sign that, so long as separate rolls were prepared for the several panels of auditors of petitions, it was the duty of anyone to collect them and place them in safe custody together with the roll of the council. Such information as we have points to an almost total lack of system. Perhaps in 1290 there was some intention of keeping duplicate series of rolls of petitions in the wardrobe and the exchequer : duplicates of the rolls of the council appear, however, to have remained for many years in the hands of the clerk of the council, although a similar set was probably deposited in the exchequer. Such Parliament Rolls as were in official custody appear in the early fourteenth century to be in no single repository. When about 1322 a collection of Parliament Rolls in the exchequer was made for transcription into a register, only a small number could be got together, far fewer than we possess to-day for the period covered. It is not until the reign of Edward III, when the clerk of parliament was regularly provided from the chancery, that we get anything like a regular series of rolls ; these rolls, which, beginning as the enrolments of the proceedings of the council in parliament, became the sole Parliament Rolls,1 were kept among the chancery records and so found a resting-place in the Tower of London. 1 Parliamentary enactments, however, were normally enrolled on the Statute Roll. The first Statute Roll was begun in the reign of Edward I, the entries being certainly contemporary from 1297. See our paper in Law Quarterly Review, L. 201 ff., 540 ff.

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An inventory of chancery records drawn up in 1381 makes no specific reference to any Parliament Rolls earlier than the time of Edward III,1 but we may suppose that certain Parliament Rolls of Edward II, which later figure among the Tower records, were already there: they had possibly come from the exchequer, since for a time in the fourteenth century the Tower was used equally as a repository for exchequer records, and when it was decided to remove these to Westminster some documents were overlooked or left undisturbed as useless.2 From time to time further deposits of records were made in the Tower. In 1499 the chancery rolls and records of Edward IV were transferred, and these included four Parliament Rolls for the first, third, fourth and eighth years of the reign.3 This was nearly the last transfer, but the remaining Parliament Rolls of Edward IV at some time found their way to the Tower, and were presumably already there in 1567 when a warrant was issued for the removal to the Tower of the chancery records from Richard III to Henry VIII.4 This warrant was not in fact executed, and until modern times the Parliament Rolls subsequent to the reign of Edward IV were kept at the Rolls House in Chancery Lane. The only further addition to the records in the Tower bearing upon our subject was the Vetus Codex which during Michael Heneage's keepership was, as John Stow tells us, " restored to the Tower ".5 The existence of parliamentary records at the Receipt of the Exchequer at Westminster appears to have been generally unknown until the eighteenth century,6 and that Parliament Rolls were to P.R.O., List of Chancery Rolls (Lists and Indexes, no. XXVII), Preface, p. 2vi. Cf. V. H. Galbraith, " The Tower as an Exchequer Record Office in the reign of Edward II ", in Essays in Medioeval History Presented to T. F. Tout* pp.3 231 ff., 242-3. Egerton Papers (Camden Society), pp. 1—3. 4 Leland's Collectanea (ed. Hearne), II. 655-7. 5 Survey of London (ed. Kingsford), I. 12. The book was therefore in the Tower by 1598, the date of the first edition, but, as Stow indicates, it had not been there long and the first keeper whose signature it bears is Michael Heneage (Maitland, Memoranda de Parliamento, Introduction, p. xi). 6 They are mentioned in a confused fashion in Powell's Repertorie of Records (1631), pp. 23, 133, and more particularly in W. Nicolson's English, Scotch and Irish Historical Libraries (1736), pt. I, p. 208, and the anonymous Index to the Records (1739), p. 60. They were, of course, used for the Rotuli Parliamentorum : the collection then comprised those rolls now numbered 1, 2, 5, 6, 9, 10, 11, 13, 15, 16 in the "Exchequer" series. 1

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be found among the records of the king's remembrancer was not guessed until they were rediscovered in the nineteenth century.1 Prior to the publication of the Rotuli Parliamentorum, therefore, statesmen, lawyers and historians were principally dependent for their knowledge of mediaeval parliaments upon the Vetus Codex and the Parliament Rolls in the Tower, although a few bundles of original petitions were also known. But before we give an account of the gradual publication of parliamentary records it will be as well if we say something of the relation of the " Parliament Rolls in the Tower " (as they were universally known) to the two existing series of Parliarrient Rolls now to be found in the Public Record Office, confining ourselves to those earlier in date than Richard II. In the inventory of 1381 there are stated to be thirty-three Parliament Rolls of Edward III ; we are given no detailed list but there can be no doubt that these are all or nearly all represented in the thirty-one rolls of Edward III in the present Chancery series. The membranes which compose the roll now numbered 2 at one time formed four separate rolls,2 and the roll numbered i is an original schedule of petitions presented by the commons in the Candlemas parliament of 1327 and is hardly to be accounted a roll at all.3 In this way we might seem to get the required number of thirty-three ; but for reasons which will appear we doubt whether the present roll numbered 3 figured in the 1381 invento^. The next inventory of which we have knowledge was drawn up in 1572 ; 4 this list includes two (subsequently altered to three) Parliament Rolls of Edward II and thirty of Edward III. Three rolls of the latter reign were therefore astray. Now the keeper of the Tower records in 1572 was William Bowyer, who made an 1 The discovery of two Parliament Rolls of 12 Edward II was reported to a meeting of the Record Commission on 9 March, 1833 : Proceedings of H.M. Commissioners on the Public Records, June 1832-August 1833, p. 180. These were subsequently printed in Cole's Documents, together with newly
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abstract of the Parliament Rolls in his care ; this abstract did not include the rolls of Edward II and from the rolls of Edward III it omitted those at present numbered i, 3,13 and 28, evidently because they were not available.1 These two last rolls had been recovered by 1601, for they appear in Lambarde's " Pandect of the Records in the Tower " z and they were abstracted by Robert Bowyer, appointed keeper in 1604.3 We may note in passing that the present roll no. 4, which had apparently been in William Bowyer's custody, had by this time disappeared: it was missing when Michael Heneage succeeded to the keepership in 1576 4 and does not appear in Lambarde's Pandect, nor was it known to the editors •of the Rotuli Parliamentorum. However, the points we would make are, firstly, that the present rolls numbered i and 3 are latecomers to the collection 6 and that it is probable that in 1381 a Parliament Roll of Edward III existed which has not survived, and, secondly, that even in 1381 the collection of Parliament Rolls known to exist among the chancery records by no means covered all Edward Ill's parliaments. The Parliament Rolls of Edward II known to be in the Tower never exceeded four. Lambarde's Pandect tells us that there were rolls of the fifth, eighth and ninth years, and with the aid of the list printed by Thomas Powell in the Repertone of Records (1631), we can identify these with the roll of Ordinances of 1311 (now classed as Statute Roll no. 2) and the three Parliament Rolls in the 1 William Bowyer's manuscript appears to have been preserved in the College of Arms, but is now missing. According to a note on the flyleaf of the British Museum copy of Cotton's Records (1657), this manuscript bore the following inscription : " The Parliament Rolls de Annis 21 E.3, 46 E.3., 8 H.5 and 20 H.6 were not abridged by William Bowyer the first Collector, wherefore I have abridged them by the Record and written them into this book in their proper places. Ro. Bowyer." 2 Stowe MS., no. 543, fo. 55-8. This is dated 31 July, 1601. 3 See n. 1, above. 4 See the note by Roger Twysden which we print below (p. 23) from Stowe MS., no. 347, fo. 3. 5 So far as we can trace, the first notice of roll no. 1 is in the " Calendarium Generale Rotulorum in Turri Londoniensi asservatorum ", if, as we think we may, we can identify it with " Parí. Petition I E. Ill ". This Calendarium appears to be the work of George Holmes, deputy keeper of the Tower records, 1704-49 (see Ayloffe, Calendar of Ancient Charters, p. ix). The manuscript (Stowe MS., no. 543, fo. 1-38) was presented to Thomas Astle by Dr. Askew in 1768. Roll no. 3 is not mentioned in the Inventory of the Records in the Tower appended to the Deputy Keeper's Report (1841), II, App. ii, p. 33.

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Exchequer series numbered 18, 19 and 20 ; x no more than these were in the Tower in 1841.2 III. THE PUBLICATION OF "THE PARLIAMENT ROLLS That William Bowyer set himself to abstract the Parliament Rolls in his charge suggests that interest in them was already lively.3 Michael Heneage, his immediate successor in office, owned a transcript of most of the Parliament Rolls, apparently of his own making.4 Many transcripts were, of course, made later, and precedents drawn from the Parliament Rolls were freely cited in parliament in the sixteenth century.5 A public was created for parliamentary records and in 1657 an enterprising bookseller with the co-operation of Prynne published the Bowyers' abstracts, for which Sir Robert Cotton was most unwarrantably given credit.6 In 1661 the younger William Ryley who, like his father, served as deputy to the keeper of the Tower records, published under the title of Plácito, Parlamentaria the text of the Vetus Codex with other matters drawn 1 Repertorie, pp. 166-7. The " Nem. [sic] Parliament " of 9 Edward II is clearly Exchequer Parliament Roll, no. 20, the first membrane of which is headed " Memoranda de Parliament© . . . " (see Rot. Parí., I. 350). There is a reference at p. 211 of the Repertorie to the Vetus Codex under the title of 2" Liber Parliamentoruni ". Deputy Keeper's Report, II, App. ii, p. 32. Prynne, in his preface to Cotton's Records in the Tower, speaks, in error, of a Parliament Roll of 19 Edward II, a confusion with membrane 15 of the close roll of that year (cf. Repertorie, p. 169): Prynne's preface is not paged and reference must be to the3 signature—a3 v°. A copy of his abstracts before they had been supplemented by Robert Bowyer passed into Sir Robert Cotton's library and is now in the British Museum, Add. MS., no. 33216. We may note also that a volume of extracts from the Parliament Rolls exists, dated 24 November, 1566, which apparently belonged to William Cecil and is presumably the work of William Bowyer (Lansdowne MS., no. 479). * Below, p. 231. 6 Henry Elsynge's Manner of Holding Parliaments in England is the best single example of the importance attached to mediaeval precedents. Elsynge completed this work in 1624. At the time of writing it he was clerk of the parliaments, an office in which he had succeeded his uncle Robert Bowyer in 1621 ; he had previously acted as Bowyer's clerk in the House of Lords and before that had been from 1604 to 1612 associated with him in the office of 6keeper of the records in the Tower. Hence the familiar Cotton's Records in the Tower. Since the true authorship was known to Roger Twysden (below, p. 231), it is rather difficult to believe that Prynne with a little enquiry could not have ascertained the facts.

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from the chancery rolls and bundles of original petitions. There was also a scheme, apparently drawn up in the second half of the seventeenth century, for printing in extenso the Parliament Rolls in the Tower í ; but if this were ever seriously proposed, nothing came of it. In 1726, however, it seemed likely that the famous publisher Jacob Tonson would put an edition of the Parliament Rolls on the market as a commercial venture; he already had a transcript, beginning with the reign of Edward II and ending with the reign of Edward IV, which had been collated, so he said, with the originals, and he obtained a warrant to copy and examine rolls and writs of summons in the Tower and elsewhere.2 Nothing more seems to have been heard of this proposal, although we may have here the basis of the transcript which was ultimately used for the official edition of the Rolls of Parliament. In 1767 the House of Lords resolved that the Rolls of Parliament should be printed and appointed a committee to supervise the work.3 The first editors were Richard Blyke and John Topham. Blyke 1 Bodleian MSS., Tanner, no. 89, fo. 8. These proposals, which are quite brief, are worth quoting in full:—

THE DESIGN OF PRINTING THE PARLIAMENT ROLLES IN THE TOWEB OF LONDON.

It is to be observed that in the Tower of London there are Parliament and Statute Rolles. The Statute Rolles are already printed in the Statute Booke and therefore not hereby intended. The Parliament Rolles are in the nature of Journalls of the House of Lords and never yet published. 1. It is therefore now intended carefully to examine and print them and where any printed Statutes are found therein (as sometimes there are) to compare them also with the print and correct such errours as shall be found in them, by printing all or that parte faulty. But if no mistake then onely to make reference to the print. 2. To collect and publish other Parliament matters contained in other rolles and not in them.

3. To give a concurrent historicall account of things done at the time, where any matters of moment shall be found to bee obscure upon those rolles, for the better clearing them from errours and mistakes. 4. To make an exact Index of the principall matters for the more speedy finding out what therin may be desired. This document does not bear any date. It is possibly earlier than the publication of the Bowyers' abstracts, although even after 1657 it would still have been correct to say that the Parliament Rolls had never yet been published. 2 Add. MSS., no. 34711, fo. 39-40 : copy of warrant of 28 November, 1726. 3 Lords Journals, XXXI. 509.

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was incompetent1 and was soon replaced by Philip Morant, who took the leading part in the work until his death in 1770.2 Morant's place was filled by his son-in-law Thomas Astle. This was the last change, but the work made slow progress and the six volumes were not finally issued until I783.3 By order of the Lords the printer's copy was deposited in the British Museum, where it fills twenty-nine large volumes,4 and we can therefore form a good idea of the editors' methods. We must acquit them of any charge of want of care.5 It is true that they used purchased transcripts for the bulk of the copy, but the transcript of the Parliament Rolls in the Tower had been collated by James Stewart, who was presumably employed by Tonson for the purpose,6 and the other transcripts appear to have been care1 He copied Hale's transcripts of the petitions of 6 Edward I (Rot. Parí., I. 1-14) : the proof was heavily corrected by Morant (Add. MS., no. 4631) and this and not Blyke's manuscript treated as the printer's copy. We can trace no other evidence of Blyke's activities. Of all the editors an account is given in Nichols' Literary Anecdotes of the Eighteenth Century, II. 204 ; III.2 203 : this is copied by the Dictionary of National Biography. Morant was appointed in 1768, it is said on the recommendation of Astle. 3 Astle appears to have finished the work of collating the printed sheets with the originals by June 1776 (Stowe MS., no. 543, fo. 43). Neither of the editors, but Dr. John Strachey, was responsible for passing the volumes through the press and he also had undertaken to compile the index. Finally the volumes were issued without an index but with a table of contents and errata sheets. Since Astle is entitled in the latter " Keeper of the Records at the Tower ", they cannot have been printed before 1783, in which year he succeeded to that office. Moreover, in the Preface to the Index which appeared in 1832, the date of the publication of the text is stated to have been nearly fifty years previously. A copy of the text originally in the Tower bears an inscription to the effect that copies were distributed in 1783 (see Gross, Sources of English History, p. 442). * Add. MSS., nos. 4631-59, deposited pursuant to an order of the House of Lords of 8 March, 1770. The actual deposit was, of course, much later. 5 The bad reputation of the volumes derives from Sir Francis Palgrave's sweeping assertions, which cannot be said fairly to state the facts. For his views see C. P. Cooper, Account of the Public Records (1832), II. 2, 28-9, Record Commission, Report of the Committee on the " Report ", " Additional Statement " and " Letter " of Mr. Palgrave (1832), pp. 6, 22-4 ; and Observations on ... the6 Parliamentary Writs edited by Francis Palgrave (1832), App., pp. xviii-xix. Stewart, a clerk of the Receipt of the Exchequer, was engaged in the methodising of the legal records in the Chapter House and elsewhere, an enterprise which began in 1724 ; he seems to have specialised in mediaeval documents (Calendar of Treasury Papers (1720-1728), p. 284, (1729-1730), (1731-1734), and later volumes passim). He was also employed in the

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XX xxv

1

fully made and examined. All the proofs seem to have been ultimately corrected by the originals. The editors too seem to have utilised nearly all that was accessible to them in the Tower and the Chapter House, at the British Museum and at Lincoln's Inn ; they utilised material in their own possession and were prepared to purchase manuscripts for the purpose of the work.2 Some things they overlooked 3 ; and since they printed so much which did not come from Parliament Rolls, we may, if we will, accuse them of neglecting the plea rolls and all the material available for the reign of Henry III. But within the limits they set themselves, most of the material they did not use was buried and forgotten in official repositories. By the standards of the time the Rotuli Parliamentorum was a respectable achievement. It is, however, in no sense a critical edition that the editors provided, and the earlier volumes may sometimes mislead those who do not read with the closest attention.4 Here we need mention only the occasional omission from the printed volumes of vacated entries on the rolls, which historically may be of at least as great importance as any other entries. We have thought it well to print below any such vacated entries, within the period covered by the present volume, which are not mere duplicates of entries appearing elsewhere. The six volumes of the Rotuli Parliamentorum appeared without an index. This work seems to have been commenced while the volumes were passing through the press and was finally completed Tower as an assistant to George Holmes, but seemingly not in an official capacity (cf. Ayloffe, Calendar of Ancient Charters, pp. xlvii, lx ; Young and Aitken, Catalogue of MSS. in the Library of the Hunterian Museum, Glasgow, p. 207). He completed the collation of the transcript of Parliament Rolls on 23 November, 1731, as appears from notes in Add. MS., no. 4636, fo. 122 ; 4640, fo. 67b, 339, and elsewhere in these volumes. There is no question but1 that he enjoyed a high reputation for accuracy. Some of the earlier transcripts are in the hand of George Holmes or are certified by him. 2 Morant's and Astle's own collections were utilised, and Astle and Topham purchased a manuscript of the commons' petitions of the Candlemas parliament of 1327 which they wished to use (Bulletin of the Institute of Historical Research, IX. 16: below p. 100). 3 E.g. Cotton MS., Titus E., I: see below, p. 105. 4 We have provided some critical notes in the Bulletin of the Institute of Historical Research, VI. 146 ff. ; IX. 15 if.

XX xxvi

Publication of Parliament Rolls

and published in 1832.1 The delay was excessive and the cost enormous, but the index was admirable. Meanwhile Sir Francis Palgrave had in 1822 propounded to the Record Commission a scheme for a new edition of the Rolls of Parliament, and in Pal.grave's fertile imagination the scheme bourgeoned and ramified until it was to have comprised a vast series of folios illustrating the " History of the English Constitution ".2 This magnificent project is represented by the two volumes of Parliamentary Writs. Palgrave got no nearer an edition of the Parliament Rolls themselves than the transcription of the bundles of parliamentary petitions that had been rediscovered early in the century.8 The Record Commission did, however, make a substantial contribution to the publication of the Parliament Rolls. A number of such rolls of Edward I and Edward II were discovered in the i83o's in the department of the king's remembrancer, and five of these 4 were printed in 1835 and finally published in 1844 in a volume edited by Henry Cole entitled Documents Illustrative of English History in the Thirteenth and Fourteenth Centuries. In his preface Cole refers to a roll, or rather a number of rolls, of the parliament of 1305 ; these were edited in the Rolls Series by F. W. Maitland and published in 1893 under a long English title which is abbreviated on the half title to Memoranda de Parliament, the name by which the volume is usually known.5 These volumes did not exhaust the Parliament Rolls in the Public Record Office which had not been available to the editors of the Rotuli Parliamentorum. Three rolls, at present numbered 8, 17 1 Nichols, Illustrations of the Literary History of the Eighteenth Century, V. 200 ; Gentleman's Magazine, XCV., pt. I. 468 ; Harris Nicolas, Observations on the State of Historical Literature, pp. 108-9 ; and see the Preface to the2 Index itself. For a summary account of the successive stages of the scheme, see Observations on . . . the Parliamentary Writs, pp. 25-38. See also the other publications cited above, p. xxiv, n. 5. 3 William Illingworth claimed to have recovered them when Deputy Keeper of the Records in the Tower, 1805-1819 (see his Observations on the Public Records (1831), p. 21) : the same claim was advanced on behalf of the keeper, Samuel Lysons, seemingly by his nephew T. D. Hardy (Deputy Keepers Report, XVII. 9). 4 Now classed as "Exchequer" Parliament Rolls, nos. 3, 4, 14, 21, 22. 5 For an analysis of the several rolls printed by Maitland, see Bulletin of the Institute of Historical Research, VI. 149-150 ; they have been sewn to make one single roll now classed as " Exchequer " Parliament Roll, no. 12.

Publication of Parliament Rolls

XX xxvii 1

and 24 in the " Exchequer " series of Parliament Rolls, and two rolls, now numbered 3 and 4 in the " Chancery " series, have not yet appeared in print. These two series (which in point of fact are not homogeneous) do not, however, include all surviving documents of a like character to themselves ; a good many documents which may with equal propriety be termed Parliament Rolls are scattered among the two series of Parliament and Council Proceedings. In collecting material for the present volume we have ignored the limitations of the official classification and have included documents drawn from any series which are in the nature of parliamentary enrolments, and some other documents as well which, although not preserved on any surviving roll, appear to have been prepared with a view to enrolment. We have, however, excluded original private petitions except where they supply information of importance supplementing that upon the roll. The memoranda of the Michaelmas parliament of 1283 cannot be fully understood without the relevant petitions : together, these documents provide evidence of great value for the procedure followed at the early parliaments of Edward I. We have therefore, in this instance, printed such petitions as we could identify. Again, we have employed the original petitions to reconstruct as far as possible a roll of petitions of the Candlemas parliament of 1327 which has otherwise survived only in an abbreviated transcript; this roll, reconstructed even imperfectly, is of importance in helping us to understand petitory procedure at a critical time when it was undergoing rapid changes. To have included, except in special cases, other unprinted private petitions presented at parliaments of the three Edwards would have meant expanding this volume into several and would have lengthened our task indefinitely. We have, however, endeavoured, in the case of every enrolled petition here printed, to give the reference to the original petition if it still survives. Each document or group of documents in this volume has been prefaced by a note in which we have given the present official reference, the reasons for the date we ascribe where there is no contemporary inscription, and similar details which may be of 1 " Exchequer " Parliament Roll, no. 23, was copied in extenso in the Vetus Codex, but a little was lost with a missing quire. Ryley printed the text of the Vetus Codex and the editors of the Rotuli Parliamentorum took what Ryley gave. We print below (pp. 87-90) the missing portion.

XX xxviii

Publication of Parliament Rolls

assistance to the reader. We have furnished a full index of subjects as well as of persons and places, and for this reason we need not include in the introduction any further account of the information of historical importance to be found in individual documents. Lastly, we have given as an appendix to this introduction a list of parliament rolls and analogous documents which have survived from the reigns of the first three Edwards, with references to the publications in which they may be found. We believe that this is likely to be useful to students who might otherwise be uncertain where to find those parliament rolls which were not published in the Rotuli Parliamentorum. We had hoped to include in their proper place two membranes which apparently once formed part of the roll of Scottish petitions of the Autumn parliament of 1305, and which were calendared in part by Joseph Bain in I888.1 At that time they were among the Ancient Miscellanea of the queen's remembrancer in a box or bundle numbered 939. When, however, these Ancient Miscellanea were reclassified, these membranes, with other documents in the same bundle, seem to have been put aside, possibly to await repair, for they appear to have been in a bad state. Maitland seemingly was not aware of their existence, or presumably he would have mentioned, and probably printed, them in his Memoranda de Parliamento. Despite long search, they cannot now be traced, although some fortunate chance may at any time bring them to light.

1 Calendar of Documents Relating to Scotland, IV. 374-6, nos. 1815-18. No. 1815(7) with its reference to a reply given in the last parliament, which must almost certainly be the Lenten parliament of 1305, seems to establish the date. The petitions calendared under no. 1818 were apparently not enrolled : they came from the same bundle.

PARLIAMENT ROLLS OF EDWARD I, EDWARD II AND EDWARD III

T

HIS list gives in chronological order all documents in the nature of Parliament Rolls which are known to have survived whether in original or transcript, together with a reference to the publications in which they may be found. Fuller particulars of the Exchequer and Chancery series of Parliament Rolls are given in the Bulletin of the Institute of Historical Research, VI. 146-52 ; IX 15-18Date. 1279 Easter. 1280 Easter. 1283 Michaelmas. 1290 Hilary.

1290 Easter.

1291 Epiphany.

Published. Document. Parí, and Council Proc., Chanc. Below, pp. 1-7. 1/13, mm. i, 2. Parí, and Council Proc., Chanc., Below, pp. 8-ii. 69/13Parí, and Council Proc., Chanc., Below, pp. 12-16. 2/2, 3 Exch. Parliament Roll 3. Cole, Documents illustrative of English History in the Thirteenth and Fourteenth Centuries (Rec. Comm.), pp. 55-67. Exch. Parliament Roll i, mm. Rotuli Parliamentorum, I-IO. I- 15-44Exch. Parliament Roll 2, mm. Rot. Parí., I. 46-65. 1-7Exch. Parliament Roll 4. Cole, Documents, pp. 68-82. Exch. Parliament Roll i, mm. Rot. Parí., 1.45, 66-69. II,

1292 Epiphany. 1293 Easter.

12.

Exch. Parliament Roll 5. Exch. Parliament Roll 6. Exch. Parliament Roll 7, m. 8. Chanc. Miscellanea 13/1/16.

Rot. Parí., I. 70-90. Rot. Parí., I. 91-110. Rot. Parí., I. 125-6. Below, pp. 26-9.

XX xxx

TABLE OF PARLIAMENT ROLLS

Date. 1293 Michaelmas. 1295 August. 1298 Easter. 1300 Lent. 1301 Hilary. 1302 Midsummer. 1302 Michaelmas.

1305 Lent.

1305 Nativity B.V.M.

1307 Hilary.

1312 Assumption. 1315 Hilary.

Document. Published. Exch. Parliament Roll 7, mm. Rot. Parí., I. 110-24. 1-7Exch. Parliament Roll 8. Below, pp. 30-45. Exch. Parliament Roll 9. Rot. Parí., I. 127-31. Rot. Parí., I. 132-42. Exch. Parliament Roll 10. Rot. Parí., I. 143. Exch. Parliament Roll n, m. i. Rot. Parí., I. 143-4. Roí. Parí., I. 145. Exch. Parliament Roll n, mm. Roí. Parí., I. 146-50. 2. 3Vetus Codex, fo. iig-121.1 Ryley, Placita Parlamentaria, pp. 292-9, whence Rot. Pari., L I50-3Exch. Parliament Roll 12 Memoranda de Parlia(except mm. n, 12). menfo (Rolls Series), pp. 1-188, 232-314. Exch. Parliament Roll 13, m. 2. Rot. Parí., I. 171-4. Parí, and Council Proc., Exch., Memoranda de ParliU' mentó, pp. 314-20. i/i 8. Bibliothèque Nationale, MS. Below, pp. 47-54. Lat. 9215 (Mont St. Michel no. 7). Vetus Codex, fo. 118-19.1 Placita Parlamentaria, pp. 289-92, whence Rot. Parí., I. 182-3. Exch. Parliament Roll 12, mm. Memoranda de Parliamento, pp. 188-232. II, 12. Exch. Parliament Roll 13, m. i. Rot. Parí., I. 183-4. [Exch. Q.R. Ancient 2Miscellanea Cal. of Docts. relating to (Misc.) Bdle. 939]. Scotland, IV. 374-6. Vetus Codex, fo. 124-151. Placita Parlamentaria, (Exch. Parliament Roll 15).» pp. 300-385, whence Rot. Parí., I. 184215, 217-23.* Exch. Parliament Roll 14. Cole, Documents, pp. 129-38. Exch. Parliament Roll 16. Rot. Parí., I. 216. Exch. Parliament Roll 17. Below, pp. 56-9. Exch. Parliament Roll 18. Rot. Parí., I. 288-333. (vacated entries) Below, pp. 60-2.

1 Where the Vetus Codex is cited, it will be understood that no corresponding roll is extant. 2 See above p. xxviii. 3 This is a mere fragment of the roll transcribed in the Vetus Codex. 4 A better text of Vetus Codex, fo. 1296-132, is printed in Parliamentary Writs, I. 183-6.

TABLE OF PARLIAMENT ROLLS

XX xxxi

Document. Date. Published. 1316 Hilary. Exch. Parliament Roll 19. Rot. Parí., I. 334-49. (vacated entry) Below, p. 63. Exch. Parliament Roll 20, mm. Rot. Parí., I. 350-551-4. Cole, Documents, pp. 1318 Michaelmas. Exch. Parliament Roll 21. 1-46. Parí, and Council Proc., Exch., Below, pp. 66-8. Roll 20. Anc. Pet. 9518, E. 459. Below, pp. 68-70. Parí, and Council Proc., Exch., i/22, mm. 2, 3. Below, pp. 70-80. Exch. Parliament Roll 22. Cole, Documents, pp. 1319 Easter. 47-54Parí, and Council Proc., Chanc., Below, pp. 81-5. 4/251320 Michaelmas. Parí, and Council Proc. Chanc., Below, p. 87. 43/20. Exch. Parliament Roll 23. Rot. Parí., I. 3&5-86.1 Below, pp. 87-91. (omitted entry) 1321 Midsummer. Exch. Parliament Roll 24. Below, pp. 92-3. 1325 Midsummer. Diplomatic Documents, Exch., Below, pp. 95-8. 1582. Canterbury Dean and Chapter Below, pp. 106-10. 1327 EpiphanyRegister I, fo. 416-18. Candlemas. Parí, and Council Proc., Chanc., Below, pp. 110-16. 6/i.

Chanc. Parliament Roll i. Parí, and Council Proc., Chanc., Roll ii. Parí, and Council Proc., Chanc., Roll i. Cotton MS. Titus E. I., fo. 2-24. 1328 Easter. Parí, and Council Proc., Chanc., 6/8. 1330 November Chanc. Parliament Roll 2, mm. (St. Catherine) 7- 6, 5Parí, and Council Proc., Exch., 2/16. 1331 Michaelmas Chanc. Parliament Roll 2, m. 4. 1332 Lent. Chanc. Parliament Roll 2, m. 3. Chanc. Parliament Roll 2, m. 2. 1332 Nativity B.V.M. Chanc. Parliament Roll 3. 1332 December Chanc. Parliament Roll 2, m. i. (St. Nicholas) 1333 Hilary. Chanc. Parliament Roll 2, m. i. Parí, and Council Proc., Chanc., 6/2O.

1

Rot. Par!., II. 7-12. Below, pp. 116-26. Below, pp. 126-41. Below, pp. 141—79. Below, pp. 181-5. Rot. Parí., II. 52-60. Below, pp. 186-215. Roí. Parí., II. 60-3. Rot. Parí., II. 64-6. Rot. Parí., II. 66-7. Below, pp. 216-23. Roí. Parí., II. 67-8. Rot. Parí., II. 68-9. Below, pp. 224-30.

Printed from transcript in Vetus Codex.

XX xxxii Date. 1334 Lent. 1336 Lent,

TABLE OF PARLIAMENT ROLLS

Document. Chanc. Parliament Roll 4. Parí, and Council Proc., Exch., Roll 88. 1339 Candlemas. Anc. Pet, 13584, 13587. 1339 Michaelmas. Chanc. Parliament Roll 5. 1340 Hilary. Chanc. Parliament Roll 6. 1340 Mid-Lent. Chanc. Parliament Roll 7. 1340 July (St. Chanc. Parliament Roll 8. Thomas Martyr) 1341 Easter. Chanc. Parliament Roll 9. 1343 Easter. Chanc. Parliament Roll 10. 1344 Trinity. Chanc. Parliament Roll n. 1346 Nativity Chanc. Parliament Roll 12. B.V.M. 1348 Hilary. Chanc. Parliament Roll 13. 1348 Mid-Lent. Chanc. Parliament Roll 14. 1351 Candlemas. Chanc. Parliament Roll 15.1 1352 Hilary. Chanc. Parliament Roll lo. 1354 April Chanc. Parliament Roll 18. (St. Mark) 1355 Martinmas. Chanc. Parliament Roll 19. 1362 Michaelmas. Chanc. Parliament Roll 20. 1363 Michaelmas. Chanc. Parliament Roll 21. Chanc. Parliament Roll 22. 1365 Hilary. Chanc. Parliament Roll 23. Parí, and Council Proc ., Chanc ., 8/7. 1366 May (Inven- Chanc. Parliament Roll 24. tion of Holy Cross) 1368 i May. Chanc. Parliament Roll 25. 1369 Trinity. Chanc. Parliament Roll 26. 1371 Lent. Chanc. Parliament Roll 27. (vacated entries) 1372 All Souls. Chanc. Parliament Roll 28. 1373 November Chanc. Parliament Roll 29. (St. Edmund) (vacated entry) 1376 April Chanc. Parliament Roll 30. (St. George). 1377 Hilary. Chanc. Parliament Roll 31.

Published. Below, pp. 232-9. Below, pp. 240-66. Below, pp. 268-72. Rot. Par!., II. 103-6. Rot. Parí., II. 107-11. Rot. Parí., II. 112-16. Rot. Parí., II. 117-25. Roí. Parí., II. Rot. Parí., II. Rot. Parí., II. Rot. Parí., II.

126-34. 135-45146-56. 157-63.

Rot. Parí., II. Rot. Parí., II. Rot. Parí., II. Rot. Parí., II. Rot. Parí., II.

164-74. 200-4. 225-35. 236-45. 254-62.

Rot. Parí., II. 264-7. Rot. Parí., II. 268-73. Rot. Parí., II. 275-80 Rot. Parí., II. 280-2. Rot. Parí., II. 283-8. Below, pp. 273-8. Rot. Parí., II. 289-93. Rot. Parí., II. 294-8. Rot. Parí., II. 299-302 Rot. Parí., II. 303-8. Below, pp. 279-80. Rot. Parí., II. 309-15. Rot. Parí., II. 316-20. Below, p. 281. Roí. Parí., II. 321-60. Rot. Parí., II. 361-75.

1 Chanc, Parliament Roll 17 contains the record of the proceedings at the great council which met on 23 September, 1353.

XX xxxiii NOTES Page xx, n.2 see XXI. 17. n.3 Below, XXI. 16. xxii, n.4 The reference is to Richardson and Sayles, Rot. Parí. Anglic Hactenus Inediti. xxv, n.2 Above, XXI. 16. The other reference is to Rot. Parí Inediti. n.4 Below, XIX 146ff., XXI. 15ff. xxvi, f. These five rolls are now printed in Richardson and Sayles, op. cit., 30-45,56-59,92-93,216-23,232-39. xxvii, n.l Op. cit., 87-90 xxviii, n. l For Scottish petitions in 1305 see notes on XIX. 149, Roll no. 12. xxix, 1.6 See above XIX and below XXI. For references designated 'below' see Rot. Parí Inediti.

XXI

THE PARLIAMENTS OF EDWARD III PART I IT is clearly impossible within the limits of an article of reasonable length to discuss in detail the parliaments of Edward III, but we can, under three headings, deal with the questions which are vital to an appreciation of the place of parliament in the administrative and judicial organisation of the country. These three headings are (i) the incidence of parliaments, (ii) the functions of parliament, and (iii) the position of the commons in parliament. In an appendix will be found a list of those meetings to which we believe the name of parliament can properly be given ; if it is compared with such a list as that provided by the official' Return of Members of Parliament,' it will be found to differ both by what it includes and what it excludes. The reason for these differences is a simple one : our criterion has been primarily the form of the writ of summons, though we have also taken note of official records of proceedings which definitely mention parliament. We have learned to reject as a criterion of parliament the presence of popular representatives ; and although the commons took part in every one of Edward Ill's forty-eight parliaments, not every meeting to which the commons were summoned was a parliament. For under Edward III there comes into prominence a form of meeting known as the great council1 : this is true not only of England but also of Ireland, to which country it was sought to give a replica of English institutions. We must, indeed, if we wish to study the development of the elective great council, go to Ireland2 ; in England it was an expedient soon 1

It will be understood that we refer here only to great councils to which popular representatives were summoned: see below, p. 74, n. 3. 8 We hope to deal with this question elsewhere. Meanwhile let us vouch to warranty a statement submitted to Henry VI: ' Also ther as the saide knde of Irknd . . . haue had Courtes that is to say Chauncery, Kynges bynche, Commune bynche and Eschekker and other Courtes Royall that is to say Parlementes and grete counseils . . .' (Exchequer Accounts, E, 101/248/16, m. i). The articles which embody this were themselves formulated at a great council at Naas in June 1441.

XXI 66

THE PARLIAMENTS OF EDWARD III

discarded but nevertheless of great interest—quite apart from the confusion it has created for later historians. The writ of summons to a great council differed from the writ of summons to a parliament. Nine great councils are particularly noteworthy because they have been included in the official'Return of Members of Parliament.'1 The four earliest of these—at Lincoln on 15 September 1327, at York on 31 July 1328, at Nottingham on 23 September 1336, and at Westminster on 26 September 1337—were all summoned by writs which varied little from the writs used for summoning parliament ; the only noteworthy omission is the absence of the words ' parliamentum nostrum tenere,' all the other customary phrases being included, even to the instructions to the bishops to premonish the inferior clergy. As will be guessed by the inclusion of these meetings in the official ' Return,' the commons are summoned.2 The writ summoning the fifth council, that meeting at Northampton on 26 July 1338, marks a new departure : it speaks of' quoddam magnum consilium ' that, with the assent of the council, has been ordered to be held. As before, the inferior clergy are premonished and the commons summoned.3 The sixth council, that meeting at Westminster on 16 October 1342, is singular in that the clergy of the southern province only were summoned, a small number of barons and the commons of the counties south of Trent ; the council was held before the duke of Cornwall as keeper of the kingdom. The writs refer to the meeting as a consilium or tractatus,1 The next two councils, those meeting at Westminster on 16 August 1352 and 23 September 1353, are notable in that the inferior clergy were not required to be premonished, the sheriffs were asked to send one knight only from each county, and separate writs were sent to selected towns. We may note that in 1

Pp. 78, 85, in, 115, I2i, 136, 152, 153, 185. It must be put to the credit of C. H. Parrythat he excludes three of these councils from his list of parliaments, namely those of October 1342, August 1352,and June 1371 (Parliaments andCouncils of England, pp. lv-lvi, 114,122, 131). Stubbs regards the meeting of 8 June 1371 as a great council but accepts all the rest as parliaments, though he does qualify the meeting on 23 September 1353 as 'a great council without clergy' (Constitutional History, ii. (4th ed.) 388 n., 390 n., 397 n., 411, 425 n., 443). The P.R.O. 'Calendars' too frequently introduce the word parliament where nothing corresponding can be found in the original rolls. With Lords' Reports, iv. 460-1, 495-6, 598-9, compare Cal. Close Rolls (1333-7), p. 702; (i337-<)}> P- 5 2 75 (i349-54)> P- 610 ; see also below, p. 68, n. 6. 2 Lords' Reports, iv. 376, 384, 460, 479. The basis upon which the official' Return' was compiled is indicated by a note on p. 2 of volume I : ' This [parliament of 20 January 1265] appears to have been the first complete Parliament consisting of elected Knights, Citizens and Burgesses.' 3 Ibid. pp. 492 ft. The distinction drawn between the council and the great council is to be noted. Note also that before the meeting of the ' consilium' at Northampton, a meeting of the secretum consilium is held (ibid. p. 495). Dr. Tout thought that this undeniable great council' can fairly be reckoned as a parliament' (Chapters in Mediaeval Administrative History, iii. 80 n.). 4 Lords' Reports, iv. 542-3 : as to the circumstances in which this council was summoned, see below, p. 75, n. 13.

THE PARLIAMENTS OF EDWARD III

XXI 67

the case of the former (but not of the latter) assembly the reason given for summoning one knight or one citizen only was a desire not to interfere with the harvest.1 The ninth of the great councils is that assembling at Winchester on 8 June 1371 : the purpose of the meeting was to reconsider the form of taxation sanctioned at the parliament which had met at Westminster on 24 February, and half only of the knights, citizens, and burgesses who had attended that parliament were summoned to attend the great council.2 It may be asked how a great council is to be distinguished from a parliament : can we rely upon the form of the writ of summons, seeing that in previous reigns the formulas were not settled and undoubted parliaments were summoned by writs which omitted the word parliamenium ? There seems no doubt, however, that, although the practice had hitherto varied, the tendency from about the year 1300 had been to insert the word parliamentum in writs of summons to parliament : this is the invariable rule under Edward III.3 We can, of course, test this rule by referring to the records of proceedings in parliaments and councils. We shall find that such records as we possess refer to the nine assemblies with which we are now dealing as ' treaties,' ' councils ' or ' great councils,' while the assemblies in our appended list, all summoned by writs which specifically mention parliament, are termed parliaments. Thus, rumours having reached the king that the archbishop of York might be impeded in bearing his cross when coming to the tractatus at Lincoln in September 1327, warning letters were written to the archbishop of Canterbury, the mayor and bailiffs of Lincoln, and the sheriff of Lincolnshire ; the letter to the archbishop of Canterbury is particularly interesting, since a distinction is drawn between parliamenta and tractatus.* In connexion with the same assembly the Londoners were informed that their messengers had been heard ' coram toto consilio nostro et tractatu nostro apud Lincolniam habito,'5 and the sheriff of Yorkshire was informed of the measures of defence against the Scots agreed upon ' in tractatu nuper apud Lincolniam habito.' 6 An action in the king's bench between the earl of Richmond and the men of Great Yarmouth was evoked before the king and his council in the tractatus held at York in July 1328 and was then adjourned to the next parliament : here again we have a distinction drawn between two types of assembly.7 The 1

Lords' Reports, iv. 593 ff, 598

2Ibid. p. 650.

Cf. ante, vi. 82. * Foedera, ii. 716. 5 Ibid. p. 717. They had come to protest against the removal of the exchequer and common bench to York. 6 Rotuii Scotiae, \. 222 ; cf. Rot. Parí. ii. 426 (from Close Roll) : ' Vintisme graunte a nostre Seignur le Roi en son Tretiz a Nicol. . . .' 7 Close Roll, 2 Edw. Ill (C. 54/147), m. 18 ; Cal. Close Rolls (1327-30), p. 309. 3

xxi 68

THE PARLIAMENTS OF EDWARD III

sumptuary law of 1336 was promulgated at the request of the prelates, earls, barons, and commons in the ' grand conseil' or ' magnum consilium' held at Nottingham on 23 September.1 To this same ' great council' came a rumour of a great Scottish fleet, and arrangements were there made for raising levies in every township * and a tenth and fifteenth were granted.8 A further tenth and a further fifteenth were granted in the ' council' held at Westminster on 26 September 1337.* Of the use of the term 'great council' in the writs summoning the assembly at Northampton on 26 July 1338 we have already spoken ; we may note the use of the same term in the writ of expenses 6 and certain documents relating to the subsidy of wool granted on that occasion.6 In the few documents that have survived regarding them, the assembly at Westminster on 16 October 1342, which was representative only of southern England, is called a ' council,'7 as is also the assembly at Westminster on 16 August 1352, to which only one knight came from each county, together with a sparse representation of the towns.8 To the assembly at Westminster on 23 September 1353 there was summoned a much larger representation from the towns,9 but again one knight only from each county : this assembly was undoubtedly termed a ' great council.'10 We find the term used also for the assembly at Winchester on 8 June 1371, when again one knight from each county was summoned and but one representative from each of the towns which had been represented in the preceding parliament.11 Our concern is primarily to establish the distinction between these nine assemblies and the forty-eight meetings which we regard as technically parliaStatutes of the Realm, \. 278-9. * Rotuli Scotiae, i. 4.59 ff. Cal. Close Rolls (1333-7), P- Ó29 5 cf- &»/. Patent Rolls (1334-8), pp. 327-8. * Cal. Fine Rolls (1337-47), pp. 50-1; cf. Cal. Patent Rolls (1334-8), pp. 545, 564; Cal. Close Rolls8 (1337-9), PP- 186, 197, 283. Cal. Close Rolls (1337-9), p. 526. 6 Ibid. pp. 463, 592, but elsewhere no adjective is used (ibid. pp. 449, 457, 633). The meeting is not, however, described as a parliament, as suggested at p. 607 of the ' Calendar.' The original reads (C. 54/162, m. 2) : ' Licet . . . abbas de Waltham sánete Crucis in parliamento nostro apud Westmonasterium vltimo conuocato seu magno consilio nostro apud Norhampton postmodum tentó nullatenus interfuisset.' It is quite ¡Ilegitímate to render this: ' although the abbot was not at the parliaments at Westminster or Northampton.' 7 Register of John de Grandisson (ed. Hingeston-Randolph), ii. 968 (also in Wilkins, Concilia, ii. 710) ; Cal. Close Rolls (1341-3), pp. 662, 680 ; above, p. 66. 8 See above, p. 66. 9 Apart from London and the Cinque Ports, thirty-seven towns as against ten the previous year appear to have received writs requiring them to send two representatives (Lords' Reports, iv. 59$, 600-01). London and the Cinque Ports had to send two representatives on each occasion : cf. Cal. Let ter Book, F. p. 247, G. p. 11. 10 Rot. Pari. ii. 246 ; Statutes of the Realm, i. 329, 332 ; Cal. Patent Rolls (1350-4), pp. 523, 537, 543 ; Foedera, iii. 272. 11 Rot. Pari. ii. 304, nos. 10, 13 ; Lords' Reports, iv. 652 ; see below, p. 72. 1 3

THE PARLIAMENTS OF EDWARD III

xxi 69

ments. We doubt whether in England the term ' great council' was ever given technical definition. From the particulars we have already noted it will be observed that these assemblies had no fixed and recognised composition : this is true also in some measure of parliament, but in the latter case there was no variation in the number of the representatives summoned from each county and town and only in regard to those persons or communities upon whom the obligation rested to appear or to be represented in parliament. Moreover the variations in this respect between parliament and parliament under Edward III were less than the variations between one great council and another.1 Our selection of these nine assemblies is an arbitrary one, based upon what has seemed to others a resemblance to parliament. The official ' Return' includes indeed an assembly at London on 3 January I 3 3 7 2 : this, however, was a meeting of certain magnates with representatives of southern ports, corresponding to a similar and simultaneous meeting of other magnates at Norwich with representatives of northern ports.3 But a long list could be made of meetings of the council at which urban representatives of various sorts were in attendance, as well as a long list of afforced meetings of the council attended by prelates and magnates and others.4 Some of these, it may be, were termed ' great councils,' and some were even called parliaments by uninstructed chroniclers,5 but not assuredly by any responsible official or lawyer. Still there was certainly some confusion even in the minds of contemporaries who should have been well informed. John of Bourne, one of the knights for Kent, applies the name of parliament indiscriminately to the true parliaments of Candlemas, Easter, and Michaelmas 1328 and to the great councils which met at Lincoln on 15 September 1327 and at York on 31 July I328. 6 On the other hand, the knights for Norfolk term this last meeting ' tractatus ' in contrast to the parliament at Northampton of Easter I328. 7 Mistakes by such men as John of Bourne were undoubtedly exceptional : against the misuse of the word ' parliament' in the returns of the town authorities of Ipswich in 1327,* Scarborough in 1 Among the magnates, the abbots and priors in particular varied in number; the number of boroughs returning members also shows considerable variation: Stubbs, Constitutional History, iii. (5thed.)4$9,46 3 ff. 2 3 P. 113. Loras' Reports, iv. 469-70. 4 Ibid. pp. 390, 394-5, 406, 441, 458, 473 ff. et passim. See also the notes in the Return of Members of Parliament, i. 129, 133, 135 etc., and G. Unwin, 'The Estate of Merchants, 13361365' in Finance and Trade under Edward III, pp. 179-2 5 5. 8 See below, pp. 70,71. We may note incidentally that a meeting at Ghent in 1340 of the council with the king in Flanders is called by a chronicler ' son parlement' {French Chronicle of London (Camden Society), p. 82). « E. 13/56 (Exchequer Plea Roll, 3 Edw. Ill), m. 8d. 7 E. 13/59 (Exchequer Plea Roll, 6 Edw. Ill), m. 5. 8 Parí. Writs, C. 219/5/1 (September council at Lincoln).

xxi 70

THE PARLIAMENTS OF EDWARD III

I337,1 and Lincoln in I353,2 of the sheriff of Northampton in 1327,3 the sheriff of Norfolk in 1338 4 and the sheriff of Wiltshire in I352, 5 we have to set a very great number of returns which use tractates or council or great council. In a long list of the expenses of the knights coming from Shropshire to ' parliamenta, concilia, et tractatus ' from 1327 to 1340 there is only one misdescription, where the council meeting at York on 31 July 1328 is called parliamentum.* Again, although the abbots of Thorney and Peterborough call the meeting of 23 September 1353 a parliament, the other abbots and bishops who send proctors avoid that word and use instead consilium or tractates? If we find John de Grandisson, bishop of Exeter, or his registrar, prone to confuse these terms, we must recognise that he was impatient of the demands made upon his time for attendance at the king's parliaments and councils—which he despised and where he felt himself useless—and was anxious only to excuse himself : we should not expect him to be careful of the technicalities of secular jurisdiction.8 Nor are the chroniclers mindful of such technicalities. Not only do they call parliaments such meetings as that at York in July 1328,' at Nottingham in September I33Ö,10 at Westminster in September 1337," at Northampton in 1

Parí. Writs, C. 219/6/5 (September council at Westminster). C. 219/7/6 (September council at Westminster). 3 C. 219/5/1 (September council at Lincoln). * C. 219/6/7 (July council at Northampton). 8 C. 219/7/5 (August council at Westminster). We may note also that in a petition purporting to come from the ' bones gentz de la communalte Dengieterre' and presented to the king at a meeting of the council at Pontefract,' cest tretyz de Pountfreynt,' late in 1327 or early in 1328, the September meeting at Lincoln is called the last parliament: the knights, citizens, and burgesses actually present at Lincoln, however, called the meeting ' ceste tretiz de Nicole' (Ancient Petition, no. 13018). 6 C. 2I9/6/I3A. The meeting at Lincoln on 15 September 1327 is called a tractatus, those at Nottingham on 23 September 1336, at Westminster on 26 September 1337, and at Northampton on 26 July 1338 are all called concilia. Parliaments are described as such. 7 Chancery Parliament and Council Proceedings, 46/28-41, 47/1 : some use the form ' colloquium et tractatus.' 8 The bishop himself seems certainly to have called the council at Westminster on 26 September 1337 parliament (Register of John de Grandisson, p. 302 : the date is determined by the reference in this letter to the convocation at St. Paul's; cf. Lords' Reports, iv. 482). But the mistaken rubrics to the entries of writs summoning the councils of 31 July 1328 and 16 August 1352 are doubtless due to the registrar (pp. 39, 76). For the bishop's general attitude, see his letters to the pope and the king (pp. 93, 179 ; cf. Preface to vol. iii, p. ¿vi). He seems usually to have sent proctors to parliament, as in 1328 (pp. 179, 410), 1330 (pp. 250-1, 590), 1333 (pp. 265, 680), 1334 (pp. 281 ff.), 1338 (p. 60), 1344 (p. 984), 1360 (p. 82), 1363 (p. 84). He sent proctors also to the council of 16 August 1352 (p. 76). It may be noted that he calls the Winchester parliament of 1330 ' Regium Concilium Wyntonie ' (p. 245), although he was there in person (p. 43). 9 Baker, pp. 40-1. 10 Chron. de Lanercost, p. 287 (council or parliament) ; Chron. de Melsa, ii. 378 ; Walsmgham, 2

p. 2 2 1 . 11

Murimuth, p. 80 ; Baker, p. 59.

THE PARLIAMENTS OF EDWARD III

xxi 71

July I338,1 at Westminster in September I353, 2 but they are nearly unanimous in giving that name to the council meeting at Nottingham on 15 October 1330 to which the commons were not summoned.3 Adam Murimuth, and Geoffrey le Baker following him, also call by the name of parliament the meeting at Northampton on 28 June 1336 to which a number of merchants were summoned.4 But the chroniclers of Edward III were little interested in parliamentary affairs, and the occasions are altogether exceptional upon which they provide valuable information, as Birchington does in connexion with the king's quarrel with archbishop Stratford in 1341 or the Anonimalle Chronicle in connexion with the proceedings of the commons in i376.5 We need not wonder that they found it difficult to distinguish between parliaments and councils, nor need we be surprised at their failure to do so. It is possible that there may have been junior clerks in the chancery who also found it difficult to distinguish between certain great councils and parliaments. There are, however, we believe, only two entries that give a suggestion of this. Against the enrolment on the close roll of the writ to the archbishop of Canterbury summoning him to the meeting at Lincoln on 15 September 1327 there is the note ' Summonicio parliament!,'6 whereas against the enrolment of the similar writ summoning the archbishop of York to the meeting at York on 31 July 1328 there is the note * Summonicio consilii.'7 But the marginal notes, and indeed the entries themselves, on the close rolls are much too frequently erroneous to cause us to attach importance to discrepancies such as these ; when we can detect the scribe writing Cantuar' in the margin where he should have written Norhf8 we shall not pitch too high the standard attained in transcribing documents. But we must remember that the enrolling clerk often, if not as a rule, had a draft and not the finished instrument before him,9 and mediaeval drafts were, on occasion, mangled and confusing affairs, hurriedly corrected copies of an imperfect precedent. In this way we can account for Murimuth, p. 85 (council or parliament) ; Knighton, ii. 4. Baker, pp. 122-3. 8 Murimuth, p. 61 ; Baker, p. 45 ; Avesbury, p. 285 ; Chron. de Lanercost, pp. 265 ff.; Walsingham, i. 193 ; Cont. Hemingburgh, p. 302. Knighton, however (i. 453), speaks of a council. 4 5 Murimuth, p. 77 ; Baker, p. 57. As to these, see the second part of this article. 6 7 Lords' Reports, iv. 376. Ibid. p. 384. 8 Ibid. p. 422. This appendix to the * Lords' Reports' notes the errors of the scribe : it is instructive to anyone wishing to obtain with little trouble some idea of the standard of accuracy of chancery enrolments. We may note, as illustrating further the inaccuracies of mediaeval clerks in such matters, that the bishop of Exeter's registrar, when entering the bishop's proxy for this same convocation at Northampton, adds the rubric ' Procuratorium ad comparendum pro Domino in Convocacione seu Tractatu apud Eboracum"1 (Register of J ohn de Grandisson, p. 724 : the mistake probably arose through taking a previous proxy (p. 680) as the basis of the draft). 9 Maxwell-Lyte, The Great Seal, pp. 359 ff. 1 2

xxi 72

THE PARLIAMENTS OF EDWARD III

another close-roll entry that has given rise to a hasty, if natural, suspicion that the chancery was not of one mind whether a particular meeting should be called a parliament or a great council.1 On the close roll of 45 Edward III this entry occurs, an entry of which the ' Calendar' has tried to make sense2— ' Rex balliuis Ciuitatis Cantuarie salutem. Precipimus vobis quod de communitate Ciuitatis predicte tarn infra libertates quam extra, Ciuitatibus et Burgis de quibus dues et Burgenses ad magnum concilium nostrum quod apud Wyntoniam die Lune in octabis sánete Trinitatis proximo preteritis summoneri fecimus dumtaxat exceptis, habere faciatis Edmundo Home Ciui Ciuitatis predicte ad consilium predictum pro communitate Ciuitatis predicte venienti viginti et sex solidos pro expensis suis veniendo adparliamentum predictum ibidem morando et exinde ad propria redeundo, videlicet pro tresdecim diebus ipso Edmundo capiente per diem duos solidos. Teste Rege apud Wyntoniam xvii die Junii.' We have italicised the obvious blunders. The first makes sheer nonsense here, although the phrase is appropriate to a writ of expenses in favour of knights of the shire, where it is, of course, found ; this writ, like its fellows, was doubtless tested at Westminster8 ; and the reference to ' parliament' arises from the carelessness of a copyist following a careless draft. But although there is no doubt that the Winchester meeting was officially known as a great council,4 yet we find references to the ' Parlement tenuz a Wyncestre ' in the petitions of the commons in 1372 and I373- 5 The confusion arises from the purpose and functions of a great council and of this great council in particular. As we have explained in previous articles, the functions of parliament were diverse ; and although in the course of centuries the work of parliament has become specialised, there is still about it, even to-day, something of the heterogeneity of the primitive king's court. In the thirteenth and fourteenth centuries this heterogeneity was far more prominent ; but in order to get through the business of parliament, the work had of necessity to be divided among a series of tribunals or committees. It was, of course, as evident then as it is now that the judicial work of parliament, and in particular the expediting of petitions, could be separated from the deliberative work of parliament, from politics, legislation, taxation, and diplomacy. To the extremely able and acute ministers of the Plantagenet kings, it must have seemed Cf. Tout, Chapters in Mediaeval Administrative History, iii. 268, n. 4. Close Roll, 45 Edw. Ill (C. 54/209), m. 22 d; Cal. Close Rolls (1369-74), p. 316. * Like the writs in favour of the knights attending the great council, which precede on the close roll the entry in favour of citizens and burgesses. * Roí. Parí. ii. 304, nos. 10, 13. 6 Ibid. pp. 313 (no. 41), 319 (no. 21). See also a reference to the ' parliament' of Nottingham in a petition of 1338 (Ibid. pp. 100, no. 10). 1 2

THE PARLIAMENTS OF EDWARD III

XXI 73

but a step from specialisation to separation, from a series of tribunals depending upon an afforced council to an afforced council independent of judicial tribunals. If this step could be taken a much more efficient instrument of government would be created : the problem was to invest such a council with sufficient authority, for parliament had acquired an ever-growing prestige and the notion of parliament appeared to be indissolubly associated with equitable jurisdiction, with the righting of wrongs which no other court would redress, for remedying which a petition or bill and not a writ was required. Two attempted solutions of the problem failed : the third, which was the result not of a single stroke of policy but of the gradual accretion of expedients, produced the English parliament and the English courts of equity of the fifteenth century. It is with the policies that failed that we are at the moment concerned. One was to exclude petitions from parliament and the other to hold great councils of composition similar to parliament. Neither policy was entirely new. An attempt seems to have been made under Edward II to put an end to the presenting of petitions in parliament,1 and both under Edward II and Edward I non-parliamentary assemblies had been attended by representatives of the commons.2 In the Lenten parliament of 1332 no petitions were received or expedited because, as it was explained, parliament was summoned for the purpose of discussing the projected crusade, relations with France, and the keeping of the peace. However, a prospect was held out of another parliament at an early date when petitions would be received.3 But in the following September parliament, although petitions were received, the news from Scotland was regarded as sufficient reason for the king's departure and for breaking up the parliament. The unanswered petitions were to be answered at a convenient season.4 At the next parliament in December, no petitions were received because of the absence of most of the prelates, magnates, and lawyers, and because Christmas was approaching.6 It was not then until the Hilary parliament of 1333 that the long deferred hearing of petitions began 6 ; the commons took the opportunity of addressing a polite remonstrance at the delay.7 These instances, we suggest, show plainly enough that in popular estimation 2 3 Ante, vi. 75. Ante, v. 148-9, vi. 84. Rot. Parí. ii. 65. Ibid. p. 67. Time was, however, found to deal with some Gascon petitions at least: see Chancery Parliament Roll, no. 3. 5 Rot. Parí. ii. 67. « Ibid. p. 68. 7 Chancery Parliament and Council Proceedings, 6/20 : Item prie la commune qe touz les billes nient responduz donez par la commune as diuers parlementz en temps nostre seignur Ie Roi qore est soient duement responduz et execut a ceo parlement. . . . 1 4

XXI 74

THE PARLIAMENTS OF EDWARD III

one of the principal functions of parliament was to provide a means of answering petitions, and that failure to receive and answer petitions was resented, however convenient this course may have been to a government anxious to hasten the dispatch of public business. In the circumstances it might well have seemed to be running too great a risk of popular disfavour to hold parliaments from which was withdrawn the common opportunity of petitioning ; and if after 1332 any further attempt of the kind was made to economise parliamentary time, this expedient was not persisted in.1 As we have seen, the alternative device of a great council was tried from very early in the reign. Of the nine great councils which we have treated as in a class apart, that of September 1353 seems most noteworthy. Jts main purpose was to secure the assent of the magnates and commons to certain ordinances governing the staple and to the continuance of the subsidy on wool, hides, and woolfells. Although no individual petitions seem to have been received or answered, the commons summoned took the opportunity to present a lengthy petition. The last article of this petition asked that the legislation agreed to at the council should be ' recited ' at the next parliament and entered on the parliament roll ' a tiel entent qe les Ordinances et Acortes faites en Conseils ne soient de Recordé, come sils fuissent faitz par commune Parlement.' This was accordingly done, power being reserved to amend the ordinances where necessary.2 But such insistence upon the supremacy of parliament appears to have led to the virtual abandonment of great councils containing substantial popular representation.3 That summoned in 1371 was manifestly for the purpose of completing the business of the preceding parliament with as little trouble to all concerned as was reasonably possible : the work of the 1 There are some parliaments for which no evidence exists either of the appointment of receivers and triers or (where this fails) of the presentation of petitions: see the second part of this article. 2 Rot. Parí. ii. 253, 257 ; Statutes of the Realm, \. 329 ff., 332 ff. 8 For ' great councils' under Richard II see Tout, Chapters in Mediaeval Administraties History, iii. 336 ff., 346, 454, 470 ff.: for the fifteenth century see Plummer, Fortescue on the Governance of England, pp. 306 f.; Plucknett,' The Place of the Council in the Fifteenth Century' in Transactions of the Roy ál Historical Society, Fourth Series, i. 165 ff.; Pollard, Evolution of Parliament, pp. 281 ff. See also Baldwin, The King's Council, pp. 106 ff. Although knights and others were from time to time summoned to these meetings, as for example that at Westminster on 15-16 August 1401 (Foedera, viii. 213 ; Nicolas, Acts of the Privy Council, i. 155 ff.; cf. ibid. vi. 339), no attempt seems to have been made to include a representative ' house of commons ': the gatherings were in fact in line with those under Edward III to which we have referred above, p. 69. Since it has been remarked that a meeting in 1395 which modern writers have called a great council is termed by Froissart' parlement' (Chnniques (ed. Kervyn de Lettenhove), xv. 148, 156), we may note that he also calls it ' conseil' (p. 157), as it is termed also in the official record (Baldwin, op. cit., pp. 135 ff., 504 ff). Froissart, of course, was not attempting to write in technical language, and with him ' parlement' has a wide connotation : thus he speaks of' la chambre ou les parlemens secret du roy se tenoient' (p. 191) and also of' les parlemens generauls' which ' se tiennent au palais de Westmoustier ' (p. 297).

THE PARLIAMENTS OF EDWARD III

xxi 75

council was confined to the revision of the hopelessly inaccurate assessment of the aid granted in the preceding parliament and to replying to petitions that had been unanswered in that parliament.1 The main purpose of great councils summoned under Edward III will have been evident from the particulars already given : they were chiefly, but not entirely or invariably, summoned to discuss taxation and related matters, as in September I336, 2 September 1337,* July 1338,* September 1353 s and June 1371,6 possibly also in August I352. 7 The Staple ordinances of 1353 were of course closely connected with taxation,8 but on the same occasion legislation regulating the Gascon wine trade was also agreed upon,9 as well as various provisions remedying grievances that had formed the subject of petition—actions in secular cases brought before the Curia, pardons for felonies, regrating, the alnage of cloth.10 At the Nottingham council of September 1336 not only were arrangements made for levying troops and raising taxes, but the occasion was taken to formulate sumptuary legislation.11 At the same meeting the king and the magnates agreed to the suspension of all assizes of novel disseisin and attaints brought against those in the king's service in Scotland and Ireland.12 Similarly at the Westminster council of October 1342, as part of the general settlement of the issues arising out of the quarrel with archbishop Stratford, proceedings against the prelates were suspended.13 As we should expect, the occasion of a great council might Rot. Par!, ii. 304. Tenth and fifteenth granted : Cal. Close Rolls (1333-7), P- 629. 3 Tenth andfifteenthgranted : Cal. Fine Rolls (1337-47), p. 50. * Arrangements for collecting balance of 20,000 sacks of wool granted in previous parliament: Cal. Close Rolls (1337—9), p. 457- For the importance of the assessment of wool prices then made, see Unwin, Finance and Trade under Edward III, pp. 184-5, T9°> 2°8» 210. 6 Duty on cloth : Statutes of the Realm, i. 330-1 ; Cal. Patent Rolls (1350-4), pp. 536 ff. 6 Revision of assessment of aid : Rot. Parí. ii. 304. 7 Cf. Unwin, of. tie., pp. 228-9. But we have not discovered any direct evidence of the nature of the business transacted at this meeting. 8 For the customs duties, see Roí. Parí. ii. 246-7 ; Statutes of the Realm, i. 333. * Foedera, iii. 272 ; Statutes of the Realm, i. 331. 10 Rot. Pttrí.'ú. 252-3; Statutes of the Realm,\.T,-i<)S. Articles 33, 36,41 in the'Rot. Parí.'correspond to chapters i, 3, and 2 of the statute; article 24 resulted in chapter 4. There is nothing, it may be noted, in ' Rot. Parí.' corresponding to chapters 5-8 regarding Gascon wine. 11 Statutes of the Realm, i. 278-9. Professor Unwin was doubtless right in seeing a connexion between this legisktion and the preparations for war (Finance andTrade under Edward III, pp. xix-xx, 186-7). 12 Foedtra, 11. 991 ; Cal. Close Rolls (1333-7), p. 725 ; (1337-9), p. 246. 13 Cal. Close Rolls (1341-3), pp. 662, 680 ; Register of John de Grandisson, ii. 968. It has not, we believe, been previously remarked that this council was held at the same time as a provincial council of the southern province, following upon a meeting of convocation (Lords' Reports, iv. 541-2; Wilkins, Concilia, ii. 696, 702). Its connexion with the Stratford quarrel is shown by the documents in bishop 1

2

xxi 76

THE PARLIAMENTS OF EDWARD III

be taken to hear an important law-suit, such as the action between the earl of Richmond and the men of Great Yarmouth,1 or the dispute between the king and townsmen over the appointment of a chaplain as keeper of the oratory and bridge at Bedford which after an inquisition by the justices of assize came before the Nottingham council of I33Ó. 2 A great council therefore might be made to perform many of the functions of a parliament 3 : taxation, legislation, important questions of administration, actions at law, all fall within its province. Not only the Staple ordinances but also, if we may take an example from Ireland, the ordinances of Kilkenny of 1351 4 suggest how wide might have been the jurisdiction of great councils in England, had not the events of 1353 prevented its development. But in one respect, at least, parliament seems to be distinguished from a great council —in the one there is, or ought to be, a general opportunity to petition and a right to be answered, in the other this opportunity is not given and the right is not recognised. It is true that at Lincoln in 1327 the knights, citizens, and burgesses present a petition asking that actions for trespass may be continued in the courts as though there had been no demise of the crown,5 and messengers of the Londoners are heard praying that the exchequer and common bench may not be moved to York,6 that at Nottingham in 1336 the magnates and commons ask the king to take steps to enforce an ordinance passed at the last parliament,7 that at Westminster in 1353 the commons present a batch of petitions which form the basis of a statute,8 and that at Winchester in 1371 replies are given to petitions presented in the previous parliament and remaining unanswered.8 But quite clearly in each case the petitioners or the occasion Grandisson's register (ii. 960 ff.) and the related documents not to be found there (Foedera, ii. 1151-2 ; Cal. Close Rolls (1341-3), p. 680). These are concerned with conflicts between secular and ecclesiastical jurisdiction. But another document (Cal. Close Rolls (1341-3), p. 662) shows that civil offences alleged against the archbishop also came into question. It is of interest to note that the provincial council took the opportunity of legislating against those impeding ecclesiastical jurisdiction —an obvious retort to the proceedings against the bishop of Exeter (Wilkins, Concilia, ii. 707-8). 1 Above, p. 67. 2 Cal. Patent Rolls (i^-V), pp 361-2. 3 We should note that the council at York in July 1328 was intended to complete certain business left over from the preceding Easter parliament at Northampton, and that when, owing to the failure of the magnates to attend, this could not be done, the business was brought forward at the succeeding Michaelmas parliament at Salisbury (Lords' Reports, iv. 386). In 1339, when it is a question of raising money, ' le Chaunceler et le Tresourer sount auisez affaire assembler vn parlement ou vn conseil des grantz et ceux de la commune ' (Chañe. Parí, and Council Procs., 7/10)4 Early Statutes of Ireland, pp. 374 ff.: this was the work of a great council which met at Kilkenny on 31 October 1351. 6 8 Ancient Petitions, nos. 13017-8. Foedera, ii. 717. 7 Cal. Patent Rolls (1334-8), pp. 367-8 ; Statutes of the Realm, i. 277. 8 9 Rot. Parí. ii. 252-3 : see above, p. 74. Rot. Parí. ii. 304.

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xxi 77

are exceptional, and we cannot deduce from these instances any general right of petitioning. We may seem to have discussed at disproportionate length non-parliamentary assemblies, but it is evident that, until these are disentangled from those meetings which are in any precise sense of the word parliaments, it is really impossible to obtain very clear ideas of what parliament was and what it did.1 Once we have separated out great councils, we can discuss those other meetings, forty-eight in all under Edward III, to which the name of parliament can be technically applied. Of these, sixteen were held in the first ten years of the reign, and of these sixteen eight were held elsewhere than at Westminsterfive at York, one each at Northampton, Salisbury, and Winchester. In the forty years from 1337 to 1377 parliament was invariably held at Westminster. Although in 1339 two parliaments were held, three in 1340 and two again in 1348, on thirteen occasions a year passed without a single parliament.2 Edward III, however, had not been many days on the throne before a request was made for annual parliaments,3 and this request was repeated at intervals during the reign. That one parliament at least should be held each year was the expressed wish of the commons,4 and we have no reason for supposing that this was not the general and genuine desire of those classes of the community represented in parliament. Why did they desire regular parliaments ? The reply to this question brings us to the second part of our paper, to the consideration of the functions of parliament.

1

Hence Dr. Tout's incidental discussions of parliament are sometimes not very helpful: see especially Chaffers in Mediaeval Administrative History, iii. 61 ff. 2 Reckoning by our modern calendar—1342, 1345, 1347, 1349, 1350, 1353, 1356, 1359, r364' 6 I3 7. 137°, 1374» !375- See Appendix I. 3 Petitions of the Londoners in Candlemas Parliament of 1327 (Chañe. Parí, and Council Procs., roll no. i): Ensement prient qe nostre seignur le Roí teigne son parlement a Westmoustier chescun an taunqe il soit de plenere age. Et qe ceux qi serront assignee destre pres de luy soient remuez au commencement de parlement et qe chescun qi se sache par reson pleindre de eux soit oi. 4 StatutesoftheRealm,\. 265, 374; Rot. Parl.'u. 271 (no. 25), 355 (no. 186).

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THE PARLIAMENTS OF EDWARD III APPENDIX I—TABLE OF THE PARLIAMENTS OF EDWARD III

[The printing of the term and place in italics indicates that, though it was intended to hold a parliament at this time, it was either postponed or countermanded. Writs of summons are cited from part II of appendix I to the ' Lords' Reports on the Dignity of a Peer,' contained in the fourth volume (L.R. iv). For the proceedings of parliaments, references are given to the original Chancery Parliament Rolls [Roll], as well as to the printed' Rotuli Parliamentorum' [R.P. ii], and also to the printed ' Statutes of the Realm' [S.R. i] ; where these fail, references are given, if possible, to other record sources. ' Calendars of Close Rolls' are abbreviated as C.C.R., of 'Patent Rolls' as C.P.R. Selected references are given to chronicles, but there has seemed no object in making these exhaustive.] Authorities. Year. Term. Place. Record. Chronicle. French Chron. of 1327 M orrow of Candlemas Westminster Roll i (R.P. ii. 7-12) London, 59 (3 February) Add. MS. 36824 (R.P. ii. 430-440) Ann. Paul. 325 S.R. ¡.252,255 L.R. iv. 378 Knighton, i. 447 1328 Sunday after Candlemas York Ann. Paul. 339-40 (7 February) C.C.R. (1330-33), 92-3 Murimuth, 56 Three weeks after Easter Northampton L.R. iv. 381 (24 April) Chañe. Parí.and Council Procs., Baker, 40 6/8 Aves bury, 283 S.R. i. 257 Murimuth, 58 L.R. iv. 386, 389 Sunday after quinzaine Salisbury of Michaelmas C.C.R. (1327-30), 324» 341, Baker, 42 Knighton, i. 448 (16 October) 349 Ann. Paul. 342 Westminster L.R. iv. 389 Knighton, i. 448 1329 Octave of Candlemas (9 February) Murimutk, 59 Winchester L.R. iv. 391 1330 Sunday before St. Baker, 44 Foedera, ii. 783 Gregory Avesbury, 284 (n March) C.C.R. (1330-33), 136-7 Knighton, i. 452 Ann. Land. 247 Westminster L.R. iv. 397 Baker, 47 Monday after St. Knighton, i. 458 Roll 2 (R.P. ii. 52-60) Katherine Exch. Parí, and Council Procs. Ann. Paul. 352 (26 November) 2/16 S.R. i. 261 1331 Morrow of quinzaine of Westminster L.R. iv. 400, 402 (cancelled) Easter (15 April) Morrow of Michaelmas Westminster L.R. iv. 403 Roll 2 (R.P. ii. 60-63) (30 September) S.R. i. 265 1332 Monday after St.Gregory Westminster L.R. iv. 408 Knigkton, i. 461 (16 March) Roll 2 (R.P. ii. 64-66) Murimuth, 66 Morrow of Nativity Westminster L.R. iv. 411, 415 Roll 2 (R.P. ii. 66-67) B.V.M. (9 September) Roll 3 (unprinted) Lanercost, 270 L.R. iv. 416 Friday before St. Nicholas York (4 December) Roll 2 (R.P. ii. 67-68) continued to

THE PARLIAMENTS OF EDWARD III

XXI 79

Authorities.

Year.

Term.

1333

Octave of Hilary (20 January)

York

Chronicle. Gesta Edwardi L.R. iv. 418 Tertii, i IQ Roll 2 (R.P. ii. 68-69) Chañe. Parí, and Council Procs.

1334

Monday before St. Peter in Cathedra (21 February) Monday after Exaltation of Holy Cross (19 September) Morrow of Ascension (26 May) Monday after Mid-Lent (n March)

York

L.R. iv. 422 Roll 4 (R.P. ii. 376-377)

Westminster

L.R. iv. 427 C.C.R. (1333-37), 256

Place.

Record.

6/20

1335 1336

1337

Hilary (13 January) adjourned to Octave of Candlemas (9 February) adjourned to Monday after St. Matthias (3 March)

L.R. iv. 443 S.R. i. 269 Westminster L.R. iv. 454Exch. Parí, and Council Procs., roll 88 S.R. i. 275, 276 L.R. iv. 464 York

York

Tor k

Murimutk, 72 Baker, 53 Knighton, i. 471 M»n'/»s//5,7o,72-3 Baker, 53 Knighton, ¡.471. Murimuth, 7 5 Baker, 56 Lanercost, 284

L.R. iv. 467 L.R. iv. 470 S.R. i. 280

Murimuth, 78-9 Baker, 58 Lanercost, 288 Cont. Hemingburgk,$lï Murimuth, 81-2 1338 Morrow of Candlemas Westminster L.R. iv. 488 (3 February) C.C.R. (1337-39)' 3o6, 325, Knighton, ii. 8 333,381,385» 393! ( r 339~ Lanercost, 295 40, 3H Foedera,ïi. 1013,1015-16,1022 1339 Morrow of Hilary Westminster L.R. iv. 497 (14 January} adjourned to Morrow of Candlemas Westminster L.R. iv. 500 (3 February) C.C.R. (1339-40, "-I2. 95 Quinzaine of Michaelmas Westminster L.R. iv. 503 (13 October) Roll 5 (R.P. ii. 103-106) 1340 Octave of Hilary Westminster L.R. iv. 507, 510 (20 January) Roll 6 (R.P. ii. 107-111) Murimutk, 104 Wednesday after Mid- Westminster L.R. iv. 515 Baker, 67 Roll 7 (R.P. ¡i. 112-116) Lent (29 March) Knighton, ii. 15-16 S.R. i. 281 Lanercost, 333 Cont. Heming¿»rg¿,3¡4. Wednesday after Trans- Westminster L.R. iv. 521 lation of St. Thomas, RollS (R.P. ii. 117-125) Martyr (12 July) Westminster

XXI 80 Year.

THE PARLIAMENTS OF EDWARD III Term.

Place.

1341 Monday after quinzaine Westminster of Easter (23 April)

1342 1343

Monday after quinzaine Westminster of Easter (28 April)

Record.

Authorities. Chronicle.

L.R. iv. 529 Roll 9 (R.P. ii. 126-134) S.R. I 295

Murimuth, 118 if. French Chron. of London, 89 Birchington, 38 if.

L.R. iv. 546 Roll 10 (R.P. ii. 135-145)

Murimuth, 136 ff. Baker, 75 Avesbury, 352-3. Cont. Hemingburgh, 401 ff. Murimuth, 156, 242 Knigkton,\i. 29-30

1344 Monday after Octave of Westminster L.R. iv. 551 Trinity (7 June) Roll ii (R.P. ii. 146-156) S.R. i. 300 1345 1346 Monday after Nativity Westminster L.R. iv. 558 B.V.M. Roll 12 (R.P. ii. 157-163) (n September) 1347 Westminster L.R. iv. 572 1348 Morrow of Hilary Roll 13 (R.P. ii. 164-174) (14 January) Monday after Mid-Lent Westminster L.R. iv. 575 Roll 14 (R.P. ii. 200-204) (31 March) Westminster L.R. iv. 577 Men Jay after Hilary 1349 (19 January} adjourned to Westminster L.R.iv, 580, 584 (abandoned) Quinzaine of Easter (26 April') 1350 Westminster L.R.iv. 587 1351 Octave of Candlemas Roll 15 (R.P. ii. 225-235) (9 February) S.R. i. 310 Westminster L.R. iv. 590 1352 Hilary Roll 16 (R.P. ii. 236-245) (13 January) S.R. i. 319 1353 1354 Monday after St. Mark Westminster L.R. iv. 601 Roll 18 (R.P. ii. 254-262) (28 April) S.R. i. 345 Westminster L.R. iv. 603 Morrow of Martinmas 1355 (12 November) adjourned to Monday after St. Edmund Westminster L.R. iv. 606 Roll 19 (R.P. ii. 264-267) (23 November) 1356 1357 Monday after week of Westminster L.R.iv. 611 S.R.Í. 349, 353, 355 Easter (17 April) C.C.R. (1354-60), 411

Knighton, ii. 5 5

Baker, 114 Baker, 122

Avesbury, 431

THE PARLIAMENTS OF EDWARD III Year. 1358

1359 1360 1361

1362 I363

Term. Place. Monday after Candlemas Westminster (5 February)

Record. L.R. iv. 614

Morrow of Ascension (15 May) Sunday before Conversion of St. Paul (24 January)

L.R. iv. 622

1367 1368

1369 1370 1371 1372

1373 1374 1375

Authorities.

L.R. iv. 624 S.#. i. 364 Foedera, iii. 603-604 C.C.R. (1360-64), 162-3, l6 5> 167 C.P.R. (1358-61), 564 Quinzaine of Michaelmas Westminster L.R. iv. 631 (13 October) Roll 20 (R.P. ii. 268-273) S.R. ¡.371,376 Octave of Michaelmas Westminster L.R. iv. 634 (6 October) Roll 21 (R.P. ii. 275-280) Roll 22 (R.P. ii. 280-282) S.R. i. 378

1364 1365 Octave of Hilary (20 January) 1366

Westminster Westminster

Westminster

L.R. iv. 636 Roll 23 (R.P. ii. 283-288) £.£.¡.383,385

Morrow of Invention of Westminster L.R. iv. 639 Holy Cross Roll 24 (R.P. ii. 289-293) (4 May)

i May

Westminster

L.R. iv. 641 Roll 25 (R.P. ii. 294-298) S.R. ¡.388

Octave of Trinity (3 June)

Westminster

L.R. iv. 644 Roll 26 (R.P. ii. 299-302) S.R. i. 390

L.R. iv. 646 Roll 27 (R.P. ii. 303-308) S.R. i. 393 Quinzaine of Michaelmas Westminster ¿..ft. iv. 653 (13 October) adjourned to Morrow of All Souls Westminster L.R. iv. 655 (3 November) Roll 28 (R.P. ii. 309-315) Morrow of St. Edmund Westminster L.R. iv. 659 (21 November) Roll 29 (R.P. ii. 316-320) S.R. i. 395 St. Matthias (24 February)

Westminster

XXI 81 Chronicle. Eulogium Historiarum, 227 Ckron. Angliae, 3 8

John of Reading, 147-8 Chron. Angliae, 49

John of Reading, 154 John of Reading, 157 Walsingkam, 299 John of Reading, 163 Eulogium Hisioriarum, 234-5 John of Reading, 170 Eulogium Historiarum, 239

Walsingham, 307

Anonimalle Chron., 67 Walsingham, [312-13

Walsingham, [316-17

XXI 82

THE PARLIAMENTS OF EDWARD III

Place. Year. Term. Westminster 1376 12 February adjourned to Monday after St. George Westminster (28 April)

1377

Quinzaine of Hilary (27 January)

Westminster

Record. L.R. iv. 662

Authorities.

L.R. iv. 665 Roll 30 (R.P. ii. 321-360)

L.R. iv. 669 Roll 31 (R.P. ii. 361-375) S.R. i. 396

Chronicle. Anonimalle Cerón., 79 ff. Chron. Angliae, 68 ff. Walsingham, 320-1 Anonimalle Chron., IOO-OI

Chron. Angliae, 108-9, in ff. Walsingham, 323

THE PARLIAMENTS OF EDWARD III PART II WHEN Adam of Orleton was exculpating himself from the charge of compassing the death of Robert of Baldock he was at pains to explain that Baldock was a prisoner in his house when parliament was assembled * pro iusticia omnibus exhibenda'—his point being that on such an occasion he could not and ought not to have supposed that his prisoner would be forcibly abducted.1 But we may well take the words he applies to the first parliament of Edward III as the basis of our exposition : whenever we are told what the people at large expect of parliament, it is a variant on the theme ' pro iusticia omnibus exhibenda.' The well-known writ of 13 November 1340 summoning parliament for the morrow of Hilary following explains that the king's purpose is not to ask for aids or tallages from the people nor to impose other burdens but ' pro iusticia ipsi populo nostro super dampnis et grauaminibus sibi illatis facienda.' 2 When the commons ask for annual parliaments in 1362 and in 1376, it is in order that the divers grievances and mischiefs arising from day to day may be redressed,3 or that if any errors dr falsities are found in the realm they may be corrected.4 The fullest statement of the need for annual parliaments is, however, given in a petition of the commons in Richard II's first parliament, a statement that might equally have come from 1277, in tne reign of the king's grandfather's grandfather : it is only in parliament that suits can be determined which are delayed in the king's courts because one of the parties pleads that he cannot answer without the king ; it is only in parliament that judgement can be given when the justices are divided in their opinion ; it is only to parliament that men may 1 Register of John de Grandisson, p. 1544. Here (pp. 1540 ff.) are printed from the Winchester Cartulary the charges against Orleton and his reply. These documents are summarised by Mr. A- W. Goodman, who was unaware that Hingeston-Randolph had printed them (Winchester Cathedral Chartülary, pp. 104 ff.). Orleton's reply is also in Twysden, Decem S f rif tores, col. 2763 ff. 2 3 4 Lords' Repons, iv. 573. Roí. Parí. 'ú. 271. leid. 355.

xxi 2

THE PARLIAMENTS OF EDWARD III

come when they are unjustly aggrieved by the king's ministers ; it is in parliament that petitions are presented and determined.1 There was, of course, another aspect of parliament which is nowhere better displayed than in archbishop's Stratford's defence to the king's charges in 1341. Point after point he rebuts by an appeal to the authority of parliament. The king's pretensions to the French throne had been discussed at the parliament of Northampton and thereupon instructions had been given for an embassy to prosecute the claim.2 The alliance with the Germans and others had been approved at a parliament at Westminster.8 The subsidy of a ninth had been granted in parliament and the conditions governing it settled there.4 The grants to the newly created earls had been made with the assent of parliament, and by the same authority the debts due to the crown had been remitted.5 And midway he rebukes those who seek to prevent the convocation of parliament : they strive to avoid the declaration of the truth, thereby showing that the saying is true, ' everyone that doeth evil hateth the light.'fl Another declaration of Stratford's also we should remember in this connexion, one made a little time before he wrote his excusado : when preaching at Canterbury and deploring his mis-spent past, he had expressed his intention henceforth of acting as advocate in parliament for the clergy and the people 7— when, that is, the king's government desired to place fresh burdens upon them. Diplomacy, war, taxation, in a word, politics, this is the aspect of parliament that chroniclers notice and that has chiefly occupied the attention of historians, with an occasional glance at legislation on economic matters, the staple system, sumptuary laws, or the regulation of wages. Under Edward III there are reasons why a large proportion of parliamentary time should be given to politics and economics, but it was only a proportion. The dispensation of justice remained in the eyes of the people, if not in the eyes of the king and his ministers, the prime purpose of parliament, and men still conceived of justice as they did in the days of the king's father and grandfather. The established method of seeking justice in parliament was by way of petition. It is only occasionally that any reference is made to the presentation of petitions in the writs of summons or in the declaration of the causes of summons which came to be made at the opening of each session. We have already mentioned the writ of November 1340 ; a somewhat similar announcement had been made in November 1330 after the downfall of Mortimer, 1 3 5 7

2 Roe. Parí. iii. 23. Birchington in Anglia Sacra, i. 29. 4 Ibid. 30 Ibid. 31, 35. 6 Ibid. 35. Ibid. 32. Anglia Sacra, p. 21 : 'se veile . . . in Parliament» Clero et Communitate assistere.'

THE PARLIAMENTS OF EDWARD III

XXI 3

when the king by proclamation invited plaints from all those who had suffered oppressions, hardships, or other grievances against right and the laws and usages of the realm, promising them all suitable and speedy remedy.1 And then at the Easter parliament of 1341 one of the causes of summons is specifically stated to be to hear petitions against grievances caused by the king, his ministers or others—a move, of course, in the quarrel with Stratford.2 But thereafter, and especially in the closing years of the reign, on occasions when there is no particular political cause to serve, we find similar invitations to those who are aggrieved and have no remedy in the usual course of law to present petitions in parliament.3 There is no doubt that in the early part of the reign the number of petitions presented to each parliament was very considerable and covered a wide range of subjects : we have, as in previous reigns, actual rolls of parliamentary petitions 4 and there is, moreover, the evidence of the chancery rolls and their notes of warranty.5 But for the latter part of the reign there are no rolls of parliamentary petitions, and if the chancery rolls are any guide the stream of petitions has become tenuous.6 It is true that receivers and triers of petitions continue regularly to be appointed 7 ; but since these formal appointments were made until 1886 when parliamentary petitions in the old sense of the word had long since been dead, this by itself is no evidence that there was much, or indeed any, work to be performed. We have, however, direct evidence that, even when there is no record of the appointment of receivers z Foedera (Rec. Comm.), II. ii. 800. Rot. Parí. ii. 127 (no. 5). 4 Ibid. 254, 272, 275, 283, 289, 294, 309. See Appendix below, pp. 15-18. 5 E.g. Cal. Close Rolls (1327-30), pp. i ff., 270, 282, 286, 297, 325, 338, 341 fi~., 441; (1330-33). 82 ff., 187 ff., 241 ff., 346 ff., 432, 434, 450, 464, 488 ; (1333-7), 6, 8, 20, 32, 43, 49, 86, 89,141,154, 197 ff., 232, 235, 265, 288, 305 ff., 403-4, 409-10, 422-3, 557-8, 562, 658-9, 682, 720. 6 There seems to be a distinct slackening in the late thirties, but there are a fair number of cases where a petition of parliament is warranted in 1344 (Gal. Close Rolls (1343-46), pp. 322, 326, 328, 332, 405, 407, 440-1, 458) and in 1348 (Cal. CloseRolls (1346-49), pp. 429, 431, 433, 439, 445-6, 448-9, 497, 514). Still, although there are fluctuations, the number dwindles rapidly and very few instances can be found in the closing years of the reign. The bundles of petitions surviving in the seventeenth and eighteenth centuries, so far as they can be reconstructed, afford similar evidence. For the early years of the reign there were bundles of 56 and 84 (Rot. Parí. ii. 13 ff., 31 ff.), and the great bulk of the 236 petitions de incertis annis (ibid. 378 ff.) come from this period. Thereafter there were bundles of 68 for 1334 (ibid. 73 ff.), 22 for 1335 (ibid. 90 ff.), 16 for 1338 (ibid. 97 ff.), 89 and 70 for the two parliaments of 1348 (ibid. 175 ff., 205 ff.). Ryley printed two petitions for 1354 and three for 1372 (Planta Parliamentaria, pp. 665 ff.) and in the Repertorie of Recordt published by Thomas Powell in 1631 there are references to bundles for the 28th, 36th, and 3Oth [sic] years, but there seems no other evidence for he survival of bundles of petitions for the second half of the reign. 7 We have the names of the receivers for Hilary 1333 and for every parliament from Lent 1340 to the end of the reign, except July 1340, Easter 1357, Candlemas 1360, and Hilary 1361. 1

3

xxi 4

THE PARLIAMENTS OF EDWARD III

and triers, some few petitions at least were received and dispatched 1 ; and we must assume that throughout the reign of Edward III and for many years afterwards petitions continued to be presented as they had been in the parliaments of the thirteenth century.2 But a number of forces were operating to reduce the volume of petitions which were presented to the receivers and expedited by the triers. There was evidently a growing strictness in admitting petitions. The formula ' non est petitio parliamenti' was introduced under Edward III and on some petitions this is the only endorsement 3 ; if there is a remedy men must seek it elsewhere. Then there was the growing competition of the council and the chancery. The development of the chancellor's equitable jurisdiction has not been worked out in any detail for our period 4 ; men possibly had as yet no clear conception of a court of equity, but it is probable that already under Edward III the chancellor would give equitable relief in special cases5 and by the time of Richard II there is an aspect of the chancery which to modern eyes is distinguishable as a court of equity even if it has not entirely grown away from the council.6 And if we lack precise knowledge we can yet be certain that the chancery is already giving • elief to some of those who in earlier days would have come to parliament. It is, we guess, against the growing equitable jurisdiction of the chancellor that the commons were persuaded to protest in 1371 when they asked that no plea should be pleaded in the chancery except those to which the king was directly a party or which touched ' the office of the chancery.' It is perhaps equally significant that the petition was withdrawn and that the heads of complaint include one against the outrageous delays in giving decisions on bills presented in the chancery or to the council.7 1 Excluding the parliaments of March and December 1332, when no petitions appear to have been received (ante, viii. 73), the only parliaments for which we have found no evidence are those of July 1340, Candlemas 1358, and Ascension 1360. We forbear to give lengthy precise references; some are given in Appendix I and the rest can easily be traced in the Calendars. 2 As witnessed, for example, by the bundles of parliamentary petitions surviving in the seventeenth century (as set out in Thomas Powell's Repertorie of Records) and the early nineteenth century (see list in Additional MS. no. 24696, ff. 327, 331 b). 8 Roí. Parí. ii. 75 ff. (nos. 12, 15, 16, 18, 20), 88 (no. 64), 274 (no. 3). 4 The best accounts are in Baldwin, King's Council, pp. 236 ff., and Holdsworth, History of English Law, i. 395 ff.: but there is much detail to be recovered which naturally is not used in these works. Wilkinson, Chancery under Edward III, pp. 47—53, is not helpful. 5 Rot. Parí. i. 340 : a petitioner in the Hilary parliament of 1316 is told ' sequatur in cancellaria et fiat sibi ibidem Justicia quia non potest iuuari per communem legem.' Cf. Tout, Chapters in Mediaeval Administrative History, ii. 311, where, however, the parliament is wrongly dated. 6 Baldwin, of. cit., pp. 249 ff. The existing collection of Early Chancery Proceedings begins, of course, in Richard IPs reign. 7 Chancery Parliament Roll, no. 27, m. 3 : this is one of the vacated entries omitted from the printed Rotuli Parliamentorum.

THE PARLIAMENTS OF EDWARD III

xxi 5

There was still another development which tended to divert petitions from the receivers and auditors, although not from parliament—the growth of the practice of including among petitions of the commons petitions that were actually promoted by private persons. Of this we have more to say shortly : here we would suggest that both by withdrawing petitions from their ancient channel and by emphasising the distinction between those petitions which were of private interest and those which were of public interest, this practice must have influenced, if it did not bring to pass, the abandonment of the system of enrolling petitions in separate rolls. When this step is irrevocably taken, there is need for only one roll for each parliament 1 —the single complete parliament roll whose existence has been postulated for a much earlier time. But besides the consideration of political questions, the receiving and expediting of petitions, there had been much judicial and miscellaneous administrative work for the parliaments of Edward I and Edward II to perform. Nor was there any departure from ancient practice with the accession of Edward III. For a good many years parliament is still regarded as a court of first instance and offenders are frequently mainprised to appear in parliament.2 There come before parliament questions of property in which the king is, or is supposed to be, interested : if complaints are made as to the action of the escheators 3 or if there is a question of a man's accountability for the issues of a manor,4 the case is likely to be settled in parliament. Questions of franchises,5 disputes between town and gown and other university affairs,6 disputes between a bishop and his chapter,7 disputes between native and alien merchants,8 grants by the king,9 a countess's dower,10 a whole miscellany of petty administrative questions are parliamentary business. A coroner is elected for Lincolnshire and it is testified in parliament that he is a fit person11; certain magnates testify that two merchants imprisoned in the Tower are 1 This step had, we think, been taken comparatively early in the reign. We have noticed no evidence for the enrolment of individual petitions after 1332: a separate roll is, however, being made for the commons' petitions and replies in 1334. (below, pp. 17—18). When it is possible to say, as it is in 1355, that ' nothing may be enrolled in the parliament rolls except what is agreed to by the king, peers and commonalty,' clearly men have forgotten the several kinds of rolls of earlier parliaments (Cal. Close Rolls (1354-60), p. 175). 2 M*- (1327-30), p. 241; (1330-33), i36-7, i59> 161,330; (i333-7) 539>646, 658, 73 j ; (1337-9). 128-9; (i34i-3). z83 Ibid. (1339-41) 202, 204, 210, 292-3, 347. 4 5 Ibid. (1330-33) 128, 146. Chañe. Parí, and Council Proc-., 7/21. 6 Cal. Close Rolls (1327-30), 394 ; Roí. Parí. ii. 290. 7 Cal. Close Rolls (1327-30), 422. 8 Ibid. (1327-30) 320-1 ; (1337-9) 303-49 Ibid. (1333-7), 72, 174-6; (1337-9), 48-9. 57,60-1,355. 10 n Ibid. (1330-33), 191. Ibid. (1339-41), 212.

xxi 6

THE PARLIAMENTS OF EDWARD III

guiltless of the charges against them.1 The king needs money to pay his way and his temporary accommodation is arranged in parliament.2 Homage is still being rendered there.3 But as the reign wears on there is a perceptible diminution in the amount of such business and towards the end it decreases to very small proportions. The diminution in petitions, in judicial and administrative business, left the supremacy of parliament undiminished. At the beginning of the reign a petition of the commons emphasises that parliamentary approval should have been obtained before the Despensers, who were exiled in parliament, were recalled.4 The archbishop of York in a purely civil action against the crown insists that when instructions have been given in parliament they can only be revoked in parliament.5 The bishop of Winchester refuses to plead ' in minori curia quam in parliamento' for any offence he may have committed in withdrawing from parliament.8 A judgement in parliament is, we are told, ' the highest and most solemn judgement of this land.' 7 When the cognisance of a plea has been given in parliament to the treasurer and barons of the exchequer the council will not presume to reverse that decision.8 If, in view of the king's action in 1341,* we cannot take at their face value declarations that the law can be changed and a statute repealed only in parliament,10 at the same time we cannot ignore such statements as evidence of the ideal that men had before them. The stand made in 1353 for the supremacy of parliament over a great council is of very considerable significance in this connexion.11 And if the arguments used in 1376 against the removal of the staple from Calais are hard to understand, there is no mistaking the force of the contention that this was done ' saunz comune assent de parlement et encontré le statute fait dycelle.'12 With the part played by the commons in assenting to taxes in parliament and with the political consequence of their right to be consulted we need not deal, although we may note in passing that it was not only in parliament that Cal. dose Rolls (1339-41), 11. Ibid. (1327-30), 353 5 (i330-33)' 280-1 ; (1337-9) 290; (1339-41), 3883 1 2

ibid. (1330-33) 81; (1333-7) i99> 564-

5 Rot. Parí. ii. 7 (no. i). Foedera, II, ii. 711. Trans. Royal Hist. Soc., Fourth Series, v. 59; to the references there cited, add Cal. Close £fl//r (1327-30), 420; (1330-33), 171. 7 8 Rot. Parí. ii. 24 (no. 31). Ibid. 96 (no. i). 9 For the fullest discussion of this, see Mr. Lapsley's article in Eng. Hist. Rep. sxx. 201 ff.; but see also Cal. Close Rolls (1333-7), 60; (1337-9), 141, for somewhat similar exercises of the king's prerogative. 10 Ancient Petitions, no. 2148 ; Chañe. Parí, and Council Procs., 67/5. 11 Ante, viii. 74. 12 Anonimalle Chronicle, p. 86, and see editor's note, p. 183. 1 6

THE PARLIAMENTS OF EDWARD III

xxi 7

' supply' was granted and that if taxation had been the main business of parliament it is quite unlikely that the institution would have developed along the historical lines with which everyone is familiar. It is with another function of the commons and one which has tended to be overlooked that we wish in particular to deal. The growth of the house of commons is in large measure wrapped up with the growth of the practice of presenting to the king in parliament petitions purporting to come from the commonalty of the realm, from the people at large. Without seeking here to discover the origin of the practice we should yet, in order fully to understand what happened under Edward III, go back to the beginning of the century. In the Hilary parliament of 1301 a petition of several articles was presented, commencing ' A nostre Seignur le Roy funt asavoir les gentz de la communaute de sa terre ' : this ' billa prelatorum et procerum regni' was, there is no doubt, prepared by the ' lords ' but was, we have good reason to suppose, presented by one of the ' commons,' Henry of Keighley.1 In the Lenten parliament of 1305 three unrelated petitions were presented which could be glossed ' Communitas Anglic ' ; one from the bishops, abbots, earls, barons and others of the realm asking to be allowed scutage from their under-tenants, another from the earls, barons and others who owed military service to the king asking for relief from improper demands for scutage, and a third from the earls, barons and commonalty of the realm against the transmission of money by religious houses to the heads of their orders abroad.2 It is not clear why a similar gloss was not put against a further petition presented by the archbishops, bishops, prelates, earls, barons, and other good men of the country for leave totallage lands in ancient demesne : perhaps this was merely a mistake, for ' Episcopi et Prelati Anglic' is clearly an inadequate description of the petitioners and the transcriber of the Vetus Codex did not scruple to change it to ' Communitas Anglic.'8 We may note also a petition purporting to come from the ' pauperes homines terre Anglic ' asking for remedies for vague general abuses in the administration of the law.4 In the Hilary parliament of 1307 petitions against papal oppressions were presented by the earls, barons, and the whole community of the land, which a rubric summarises as ' Communitas regni.'6 Under Edward II there are very close parallels. On the close roll of the third year are preserved the articles presented to the king by the 1 2 3 5

Parí. Writs, i. 104 ; Madox, Exchequer, ii. 108. Memoranda de Parliament», pp. 122,126, 313. Ibid. 54 and note. * Ibid. 305. Rot. Parí-, i. 219-220 ; cf. English Historical Review, zxxv. 420.

xxi 8

THE PARLIAMENTS OF EDWARD III

commonalty of the realm at the Easter parliament of 1309 : they begin ' Les bones gentz du Roialme qí sont cy venuz au parlement prient a nostre Seigneur le Roy.' Like the articles presented in the Lincoln parliament of 1301 they are political in character and represent the views of the magnates ; a favourable reply to them was made the condition of a grant of a twenty-fifth.1 On the occasion of another political crisis in the reign a series of petitions was presented purporting to come from the prelates, earls, barons, and the whole community of the realm ; it is quite clear that they were actually drawn up by the magnates,2 A document somewhat similar in form to that presented in 1309 but without the same political significance is to be found in a later close roll—the petitions presented in the Martinmas parliament of 1325 by the king's ' liges gentz ' or, as they otherwise call themselves, ' les gentz de la Commune.' 3 Of simpler petitions, confined to a single issue, purporting to come from the commonalty at this period there are a great number ; and a good many such petitions, unrelated and employing divers formulas, may be presented at a single parliament.4 We should notice a petition in the Michaelmas parliament of 1320 presented to the king 'per Milites, Gives et Burgenses pro Comitatibus, Civitatibus, et Burgis Regni sui ibidem existentes,' for its very form goes to show that other petitions on behalf of the commonalty were not such as this.5 There are also certain petitions that come specifically from the magnates about matters in which they are peculiarly interested, such as scutage 6 ; we may, however, note that a petition presented by the archbishops, bishops, earls, and barons, protesting against the cost of living, can be spoken of in a writ to the sheriffs as the complaint of the archbishops, bishops, earls, barons, and others of the commonalty of the realm.7 Rot. Parí. i. 443 ff.; cf. Annales Paulini, p. 267. We may note that the copy of the articles of 1309, with the replies, which was sent to the chancellor is still preserved (Ancient Petition, no. 14698) ; on them he should have based ' lettres de nostre grant seal . . . en covenable forme' to be sent' en chescun conté ' (Chancery Warrants, 64/655 : Calendar, p. 296). 2 Cole, Documents illustrative of English History, pp. 6, 7 : note the form of the second and third petitions. 3 Roí. Parí. i. 430. For other petitions somewhat similar from the ' Communaute du poeple de son Roialme' and from the ' peple Dengieterre,' see Rot. Par!, i. 290 (no. 8) (Hikry 1315) and Chañe. Parí, and Council Procs., 5/25 (date 1317-26). 4 E.g. Rot. Par!, i. 289 (no. 3), 291 (nos. 10, n), 299 (no. 40), 319 (no. 133), 324 (no. 171), 372 (no. 13), 374 (no. 26), 375 (no. 42), ii. 37 (no. 32), 41 (no. 52) ; Cole, Documents illustrative of English History, pp. 16, 27. Others will be found among Ancient Petitions (see P.R.O. List, p. 31) and among Chancery Parliament and Council Proceedings. 5 Roi. Par!, i. 371 : see below, pp. lo-ri. 6 Ibid. i. 292 (no. 17), 383 (no. 114) : cf. ibid. i. 298 (no. 36). 7 Ibid, i: 295 (no. 29). 1

THE PARLIAMENTS OF EDWARD III

xxi 9

If we had no more guidance than that afforded by the petitions themselves, we should still suspect that they were not of equal value or, if we may so express it, of equal authenticity. We should suspect that people, who had very little right to do so, took it upon themselves to petition in the name of the commonalty. When we get petitioners presenting their case as ' for the common profit of the king and all his people ' 1 or on behalf of themselves and the commonalty of the realm,2 or when we find a petition coming ' from the commonalty of the country and in particular those from the east of London,' 3 we should guess that the petitioners were striving to find a formula which would give importance to their personal grievances and that no effective rules had yet been devised which would prevent any man or group of people from representing that they were voicing a national demand. The procedure of trying petitions was devised, of course, to elicit what was behind them, but occasionally, no doubt, the haste or negligence of the auditors led them to accept at their face value petitions which represented nothing but the grievances or antipathies of one or two complainants.4 At any rate in 1327 the elected knights and burgesses thought it desirable to take steps to identify the petitions to which they were as a body prepared to give support. They put forward their requests in the form of an ' indented bill' and disavowed any other bill put forward in the name of ' la Commune.' 5 But the bill, we should note, contains one petition beginning ' Prient les Gentz déla Trente' 6 and this can be explained only on the supposition that the commons as a body took some measure of responsibility for a grievance brought before them on behalf of the people beyond Trent. Moreover, it is very difficult to suppose that of their own initiative the commons would have inserted certain other petitions in their indented bill, as, for example, one for the restitution of temporalities to the bishops.' It is evident that a like practice obtained throughout the reign of Edward III and well into the fifteenth century.8 For example, in the Hilary parliament of 1333 the commons' petitions to the king include one from 2 3 Rot. Par!, i. 292 (no. 19). Ibid. i. 295 (no. 31). Ibid. i. 308 (no. 82). The procedure, and the occasional failure to make it effective, are illustrated by the following extract from Exch. Parí, and Council Procs. (E. 175), 2/4 : ' Et non videtur quod fuerit in potestate illorum qui respondeant ad peticiones inconsulto rege vel magno consilio huiusmodi breue preiudiciale et insolitum precipere et ordinare. Et licet dicitur in peticione ad quam fuit sic responsum quod ad peticionem communitatis Deuonie facta fuit talis peticio, non est verum prout sciri potuerit per milites ad parliamentum, pro eodem comitatu destínalos, . . . set facta fuit peticio nomine communitatis per aliquos singulares personas Episcopum et Clerum per hoc grauare intendentes ...' This is in 1315. 5 7 Rot. Pari. ii. n. « Ibid. ii. 10 (no. 38). Ibid. ii. 8. 8 For the fifteenth century and after, see Pollard, Evolution of Parliament, pp. 327 ff., J. E. Neale,' Free Speech in Parliament' in Tudor Studies, p. 262. 1

4

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'la commune de son Marche Dengieterre.'1 In 1341 the petitions of la Commune are described as ' touchantes touz les Grantz et la Commune du Roialme ' and certain of them are expressly stated to be the requests of the magnates and the commune? In 1343 there is a petition from the earls, barons, and other nobles and all the commonalty of the realm, but this is a separate document from the petitions of the ' Communes.' 3 However, the petitions in the Great Council at Westminster in September 1353, although put forward by the ' Communes,' are described in the resulting statute as having been made by the 'Grantz et Communes.' 4 In 1371 there is one petition from the earls, barons, and communes and another from earls, barons, knights, and others of the commune? In 1373 the petitions of the ' communes ' include one from ' les Seigneurs et les Communes de la terre,'6 and in 1377 they include a number which are from the prelates, dukes, earls, barons, communes, burgesses, and merchants or from the prelates, lords, and communes? On various occasions we find the commons putting forward petitions on behalf of groups of merchants,8 shipmasters,9 separate counties or groups of counties,10 individual towns or groups of towns,11 and, as a climax in 1376 and 1377, on behalf of a veritable host of petitioners, of all sorts and conditions, from the prince of Wales downwards.12 We should particularly notice those instances where the knights, citizens, and burgesses attending parliament specifically put forward petitions ; it is not, we think, the mere hazard of a formula that such instances are rare.13 Although the magnates did not hesitate upon occasion to speak in the name of the commonalty of the realm, there seems no doubt that, with the growing practice of summoning knights and burgesses to parliament, they felt that their demands would be strengthened if the popular representatives could be induced to make common cause with them. We can probably in this way account for the part played by Henry of Keighley in 1301 : the commons having agreed to identify themselves with the magnates' demands, 1

Chañe. Parí, and Council Procs., 6/20. 3 Rot. Parí. ii. 127-8 ; see especially nos. 12 and 15. Ibid. ii. 139 ff., 144. * Ibid. ii. 252-3 (nos. 33, 34, 36, 41) ; Statutes of the Realm, i. 329-30 (nos. 1-4). For a simikr case in 1371 see Rot. Parí. ii. 305 (no. 18) and Statutes of the Realm, i. 393 (ii). 5 8 Roí. Parí. ii. 304 (15), 305 (23). Ibid. 319 (no. 27). ' Ibid. 364, 368. 8 Ibid. 143 (no. 58), 169 (no. 39), 171 (no. 58), 230 (no. 39), 241 (no. 46), 296 (no. 15). * Ibid. 287 (no. 26), 319 (no. 28), 320 (no. 29). 10 Ibid. 287 (no. 22), 312 (no. 24), 314 (no. 45), 318 (no. 20). 11 Ibid. 296 (no. 16), 301 (no. 21), 318 (no. 16), 320 (no. 310). 12 Ibid. 331 ff., 360, 364 ff.; for petition from Richard prince of Wales, see p. 371 (no. 65). 13 Ibid. 240 (no. 27), 277 (no. 19), 337 (no. 94). A petition from the knights, citizens, and burgesses was also presented in the great council or ' treaty' of Lincoln in September 1327 (Ancient Petitions, nos. 13017-8). 2

THE PARLIAMENTS OF EDWARD III

xxi n

one of their number presented the bill to the king. Certain it is that under Edward III the petitions of the commons are presented direct to the great council or to a body that represents the great council. We cannot here enter into the details of procedure, but the essential point to establish is that while petitions from individual petitioners had to come before the auditors of petitions, this stage is omitted in the case of the petitions put forward by the commons.1 The commons were expected to confine their petitions—or rather the petitions for which they vouched—to matters of general interest,2 but it was by no means easy to enforce this limitation. They constituted in fact a tribunal co-ordinate with that of the auditors of petitions. A petitioner had therefore the choice of two avenues of approach to parliament : it might well seem to him, or to his professional advisers, the better course to bring his case in suitable form before the commons to the intent that it should become one of the articles embodied in the roll or bill that was finally laid before the great council.3 Although when the commons put forward a petition, it was implied that in some measure they ' avowed ' it, yet there can be little doubt that the 1 The two forms of procedure are indicated in the replies to the petitions of the commons presented apparently in 1338 when it is stated: 'Totes les peticions einz ces heures mises par la commune en parlement ount este respondues pleinement deuant le departir des ditz parlementz. Et quant as singuleres peticions ore baillez a yce parlement, nostre seignur le Roi voet qe les auditours ore assignez pur les trier les trient et terminent auant leur departir de mesme le parlement' (Ancient Petition, no. 13584). In 1346, at the opening of parliament, Wednesday 13 September was fixed as the last day for receiving petitions and receivers and auditors were appointed : subsequently on Friday the fifteenth the commons handed their petitions to the clerk of the parliament, and these were considered ' devant les Grantz du Conseil' on the three following days, the replies being given on Tuesday the nineteenth (Rot. Par/, ii. 157 (nos. 2, 3), 160 (no. n) ). In 1348 the commons deliver their petitions to the clerk of the parliament while individual petitions are delivered to the chancellor (ibid. 201 (no. 4) ) : on this occasion the commons ask for a committee of two prelates, two lords, and two justices to hear and expedite their petitions, including those unanswered in the last parliament. In 1352 individual petitions go to the triers, and the commons put theirs forward ' en Parlement' (ibid. 237 (no. 8) ), as they do again in 1371 (ibid. 304 (no. 8) ) and 1376 (ibid. 360). In 1377 seven petitions are delivered by the commons to the clerk of the parliament (ibid. 374 (no. 87) ). In 1376 and 1377 it is quite clear that the Seignurs considered and prepared the replies to the commons' petitions (ibid. 360, 375 (nos. 95, 96) ). In 1371 a committee of lords ' and others ' is appointed to prepare the replies to the balance of petitions presented by the commons which remained unanswered when parliament rose (ibid. 304 (no. 8) ). In Lent 1340 a large body of auditors, including twelve knights and six citizens and burgesses, ' hear and try' the petitions of the commonalty and the clergy (ibid. 113 (no. 7) ) : but the inclusion of the commons seems to have been an exceptional step : they are not mentioned in such a connexion on later occasions or earlier, as in 1334 (see Appendix II, below, pp. 17-18). Dr. Tout was in error in stating with reference to the kter fourteenth century that petitions ' from an estate' went to the receivers of petitions and thence to the triers (Chapters in Mediaeval Administrative History, iii. 448). 2 Rot. Par/, ii. 160 a, 237 b. 3 For references to an ' indented' bill or schedule or separate roll, see Rot. Par/, ii. n (no. 38), 159 (no. 10), 238, 311, 330, 360.

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commons had not themselves evolved any strict procedure for the examination of bills that might be brought before them and that they lacked the competent professional assistance that was available to the auditors of petitions.1 Here then was an opportunity for the practising lawyer who was returned as a knight of the shire : he could bring forward his client's case or act on behalf of his professional friends who desired to make use of this newly developed procedure. Such conduct appeared an abuse ; it was certainly an evasion of the established practice. The remedy suggested was to disqualify lawyers practising in the king's courts for election as knights of the shire.2 But only by a radical reconstruction of parliamentary procedure could an effective check have been provided ; and late in the fourteenth century petitions began to be addressed without disguise direct to the commons.3 The vouching of a petition by the commons seems, however, to have meant no more than that there was a prima facie case for affording a remedy in the common interest : the real examination of the petition fell to the council to perform. Of course, not every petition was promoted professionally ; it does not seem to have been difficult to induce the commons to accept purely private petitions, and Haxey's case is there to inform us that they were prepared to adopt petitions on matters of public interest at the instance of others than elected knights or burgesses.4 The commons' disavowal of Haxey suggests how lightly they took their responsibilities,5 and we must often remain in doubt whether the commons' petitions represent the deliberate views conceived by the knights, citizens, and burgesses in parliament except where a petition is definitely put forward in their name. We should notice one further consequence of the development of the commons' petitions. The knights and burgesses desired some written record of the decisions. This request is made in the first parliament of Edward III 1

They certainty had a clerk in the latter part of Edward Ill's reign, and quite probably much earlier; but the petitions themselves with their varying formulas, haphazard order and general carelessness do not suggest that the clerk exercised any professional supervision. 2 Rot. Par/, ii. 310 (no. 13). 3 The petitions printed in Rot. Par/, iii. 447-8, and ascribed to i Hen, IV, really belong to 1397 : one of these (no. ;) is addressed 'As honourables et sages comunes diceste present parlement.' Ancient Petition, no. 4758, addressed to the commons seems also to come from Richard II's reign (c. 1394): a duplicate petition was addressed to the lords (no. 4569). See also Ancient Petition, no. 11182, below, p. 14 ». 2. 4 Rot. Par/, iii. 339. For Haxey's career see Tout, Chapters in Mediae-sal Administrative History, iv. 18-19 n. It is obviously hard to distinguish, but it seems extremely likely that a petition, such as that put forward in 1377, to remedy a legal abuse that had recently given rise to an action in the exchequer court (Rot. Par/, iii. 25 (no. 107) ), was introduced by a practising lawyer ; for the action out of which the petition arose, see Trans. Royal Hist. Sac., Fourth Series, v. 42-3. 5 Rot. Par/, iii. 339 (no. 16).

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XXI 13

when it was accorded that those decisions which ought to receive statutory form should be put into a statute and the others enrolled in the chancery.1 On other occasions the commons asked for the replies in form of letters patent sealed.2 The net result was the series of repetitive and ill-digested statutes 3 that offer such a marked contrast to the legislation of the first Edward. Not, of course, that the hands of the lawyers and administrators had lost their cunning, for on occasion, as in the ordinances of the staple, they showed themselves capable of drafting detailed and intricate regulations * ; but parliament was coming less and less under the influence of the professional servants of the crown as it subserved increasingly political purposes. Although the knights, citizens, and burgesses in parliament were conceived as being the mouthpiece of the commonalty and as such were made use of even by the lords, yet they themselves were far from being a homogeneous body. The knights were obviously a class apart and acted far more as one body than did the elected representatives as a whole. For purposes of taxation they represented a different interest from that represented by the citizens and burgesses and consequently acted in such matters independently.5 1 Rot. Par/, ii. 10 (no. 38), 12 (no. 41) : compare the procedure in the Lenten parliament of 1334, below, pp. 17-18. 2 Ibid. 113 (no. 8), 133 (no. 61), 150 (no. 13), 228 (no. 12) : cf. ibid. 201 (no. 4). Cf. Cal. Chancery Warrants, p. 295 (no. 64/655). 3 Statutes of the Realm, i. 255 ff., 261, 270, 319, 329, 345, 364, 371, 383, 388. That these statutes were made at the request of the commons is clear from a petition asking that all petitions affecting la commune that have been ' responduz et endosez en diuers parlementz auant ceux hures puis la darreine generale pardoun faite a sa dite commune Ian de son regne xxxvj' may be put into a statute (Ancient Petition, no. 3947). 4 These ordinances had been prepared complete (apparently by 6 June) before the meeting of the great council, and although they are dated Monday after the feast of St. Matthew, their consideration by the commons did not begin until the following Friday (Rot. Part. ii. 246, 251 ; Cal. Patent Roll: (1350-4), p. 523). 5 The magnates and knights in 13 06 grant a thirtieth on behalf of themselves, the knights, freeholders and commonalty of counties ; the citizens and burgesses grant a twentieth. Presumably the knights represent not only their counties but also the king's demesnes which also contribute a twentieth (Par/. Writs, i. 178-9). The earls, barons, freeholders and the commonalties of all the shires having granted at the Lincoln parliament of Hilary 1316 one armed man for every township excluding cities, boroughs, and the king's demesnes, a money grant of a sixteenth is substituted at the council at Lincoln in the following July to which the knights but not the citizens and burgesses are summoned, the latter having already granted a fifteenth at the parliament (Par/. Writs, II. ii. 166-9). At the Winchester parliament in Lent 1330 the knights of the shire grant one armed man from each township (Rot. Par/, ii. 52 b). At the September parliament of 1332 the magnates, knights of the shires, and ' tote la Commune' grant a fifteenth to be levied ' de la Communalte' and a tenth to be levied on the cities, boroughs, and the king's demesnes (ibid. 66 (no. 3) ). At the September parliament of 1334 the earls, barons, knights and commonalties of counties grant a fifteenth, the citizens and burgesses a tenth (FoeJera, II. ii. 895-6). At the Lenten parliament of 1340 the magnates and knights grant the ninth sheaf etc., the citizens and burgesses one-ninth of their goods, merchants a fifteenth (Rot. Par/, ii. 112 (no. 6)).

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In the August parliament of 1311, we are told, after the lords and principal ministers of the king, the knights of all the shires swore to observe and maintain the Ordinances : there is no mention of citizens and burgesses doing the like, except the mayor and aldermen and principal citizens of London.1 Under Edward III the knights are frequently mentioned in such a way as to suggest that they not only took precedence of the citizens and burgesses but were separately consulted.2 The account that we have of the discussions of the commons in 1376 shows that the knights took the leading part,3 and at the conclusion of the parliament it was the knights who acted as hosts at the feast given at the expense of the king and certain of the great men of the realm.4 In 1381 the commons themselves asked that prelates, temporal lords, knights and justices and each estate might give advice separately.5 The unity of the commons was in fact rather forced upon them than achieved by their own efforts, the two principal factors being the privileged position of the lords and the administrative convenience of the king's government. We need speak only of the latter and that briefly. Although for purposes of taxation separate discussions had to take place from time to time with the knights on the one hand and the citizens and burgesses on the other, for most purposes it was convenient to treat with one body and not two. Already in 1343 William Trussell acts in a capacity which it is hard to distinguish from that of the early speakers of the commons.6 In 1348 the commons are asked to choose six or four of their number to prosecute their petitions before a comLiber de Antiquis Legibus (Camden Soc.), p. 251. The knights at the September parliament of 1332 and the Hilary parliament of 1333 seem certainly to have been consulted separately (Rot. Par!, ii. 66 (no. 3), 67 (no. i), 69 (no. 6) ). At the great council in 1353 copies of the ordinances of the staple as drafted by the council are handed separately to the knights and to the citizens and burgesses (ibid. 246 (no. 2)). In 1362 the knights (and apparently not the burgesses) are questioned separately before the magnates regarding the staple at Calais (ibid. 269 (no. 7) ). In 1372 the knights depart and the citizens and burgesses remain (ibid. 310 (nos. 14, 15) ) : the latter apparently take the opportunity to present separate petitions (ibid. 314 if.). On the occasion of the proposed marriage of prince Edward with Margaret of Brabant, Edward III undertook to secure the succession of the issue of the union * par la grey et consentement de barouns, des nobles, et des bonnes villes de nostre pays' (Foedera, II. ii. 1083). This formula owes something to continental phraseology, but it is significant that the knights must be included among the nobles. A similar tendency may perhaps be observed in the petitions addressed at a later date ' A nostre seignur le Roi, son tressage conseille et as chiualers des Countees pur les communes Dengleterre' (Ancient Petition, no 6870) and 'As tresgraciouses seignours et chiualers de touz les Countees Dengleterre en cest present parlement ensemblez ' (Ancient Petition, no 5012). Another petition (no. 11182), which can be dated 1380, is however addressed * As tres reuerentz et tressages seignurs et comunes de la parlement nostre seignur la Roi.' 3 Anonimalle Chronicle, pp. 81-2. 4 Ibid. p. 94. 5 Rot. Par!, iii. no (no. 16). 6 Ibid. ii. 136. Trussell, of course, was neither an elected knight nor a burgess. 1 2

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mittee of the council* ; in 1352 they are asked to select twenty-four or thirty to confer with a committee of magnates 2 ; but for some time towards the end of Edward Ill's reign it seems to have been customary for the commons to be represented in their dealings with the council in parliament by a select body numbering twelve or so.3 So far then as it is permissible to speak at all of a house of commons under Edward III, it is of a body plainly divided into ' estates ' with a unity springing not from common interest but imposed from above. To the country at large the chief service rendered by the commons doubtless lay in the facilities they afforded for petitioning the crown and in securing answers to individual petitions ; any other service they rendered in the control of expenditure or the reform of administration was occasional and incidental to their resistance to taxation.

APPENDIX II—THE PARLIAMENT ROLLS OF EDWARD III THE first mention that we possess of a collection of parliament rolls of Edward III occurs in a list of chancery enrolments dated 9 September 1381. There were then thirty-three rolls' de parliamento et ordinatione parliamenti,' * and there is no reason to doubt that most of the rolls of Edward III now classified as Chancery Parliament Rolls—thirty-one in number—came from that collection. The series is unbroken from the Michaelmas parliament of 1339 (roll no. 5) to the November parliament of 1355 (roll no. 19), and again from the Michaelmas parliament of 1362 (roll no. 20) to the Hilary parliament of 1377 (roll no. 31). One roll in the series (no. 17) contains the proceedings at the great council of August I352. 5 No rolls now exist for the parliaments of 1357, 1358, 1360 or 1361; there were no parliaments in 1356 or 1359. The earlier period, from Candlemas 1339 back to Candlemas 1327, during which nineteen parliaments were held, is represented by four Chancery Parliament Rolls only. It is possible, however, to supplement this series from other sources and we may mention in particular the following documents of the nature of parliament rolls *: (a) Cotton MS. Titus E. i ; (£) Chancery Parliament and Council Proceedings 6/8 ; (f) Exchequer Parliament and Council Proceedings 2/16; (d~) Chancery Parliament and Council Proceedings 6/20; (e) Exchequer Parliament and Council Proceedings, roll no. 88. It will, we believe, be instructive if we describe briefly in order of date these five documents and the first four Chancery Parliament Rolls. As will be seen, they relate to ten of the nineteen parliaments of the period and may be regarded as sufficiently representative of the parliament rolls of the early years of the reign.

Rot. Par I. ii. 201 (no. 4). Ibid. 237 (no. 8). The body of the commons remain in the Chapter-house. 8 AnonintalU Chronicle, p. 84: ' dusz ou tresz purrount soeffire a une foitz, come ad este use avaunt ces hures.' We know that in 1373 a small deputation, ' ascons des Communes,' was sent to the White Chamber to ask for a committee of the lords to confer with the commons (Rot. Par/. ii. 316 (no. 5)). * P.R.O. List of Chancery Rolls (Lists and Indexes, no. xxvii) : Preface, p. vi. 6 See below, p. 18. 6 It will be remembered that a parliament roll may consist of a single membrane: aftte,v'i. 131-21 See also the inscriptions on mm. 3 and 4 of Chancery Parliament Roll, no. 2 ; below, p. 17. 1

2

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Candlemas Parliament 1327. Chancery Parliament Roll no. I (printed Rot. Par!, ii. 7—12) is not, strictly speaking; a parliament roll at all and, we may say with practical certainty, never formed part of the original series of parliament rolls preserved in the chancery. It appears to be the original Bille endente presented by the commons (see p. n, no. 38) ; another version of the petitions is to be found enrolled, among other matter relating to the deposition of Edward II and the accession of Edward III, on Chancery Parliament and Council Proceedings, roll no. n. Either the latter or a third version was before Thomas Astle and John Topham, the editors finally responsible for the Rotuli Parliamentorum. How it came to light is best explained in the words of their letter written in 1773 to the ' Lords Sub-Committees appointed to consider of Printing the Rolls of Parliament etc.' ' We beg leave to inform your Lordships,' they say,' that a Roll on Vellum containing proceedings in the Parliament of the 1st year of the Reign of king Edward 3d, which appears to be written in a hand coeval with that period of time, was purchased by us at the Sale of the late James West Esqr, of which no Original was to be found at the time when the proceedings in that Year were Printed, which reduced us to the necessity of Printing the same from a very imperfect Copy, made by Mr. Stewart and inserted by him in Mr. Tonson's Copy.' They therefore desired authority to cancel ' the former imperfect Sheet' and to substitute a fresh sheet printed from the document in their hands, a request apparently refused.1 Before Astle and Topham had completed their second volume, they came across further proceedings of the Candlemas parliament of 1327 : they had no original in this case but a partial transcript that had belonged to John Anstis, now Stowe MS. no. 1029, ff. ii5b-i2ob (Rot. Par/, ii. 430-1), and, where this failed them, an English abstract which they found in Harleian MS. no. 252, ff. 137164 (ibid. pp. 432-440). They overlooked a manuscript of the early seventeenth century in the Cottonian collection, Titus E. i, the first twenty-three folios of which are occupied by a shortened copy of' Peticiones in Parliamento apud Westmonasterium tento anno primo Regis Edwardi tertii a Conquestu '; the original Latin and French have been for the most part reproduced, although there are some abstracts in English. The mistakes in transcription indicate clearly that this manuscript is a copy of an earlier transcript, but it was possibly from the Cottonian manuscript that both the Anstis and the Harleian manuscripts were derived. The original roll is now lost. It was assuredly not in the Tower with the other Chancery Parliament Rolls in the seventeenth century. It is not included in William Lambarde's Pandect of 1601 (Stowe MS. no. 543, ff. 55-9); it was unknown to the compiler of the list printed by Thomas Powell in the Refertorie of Records (1631), who knew of no parliament roll between 9 Edward II and 4 Edward III (pp. 167-172) ; nor is there any mention of it in Cotton's Abridgement of the Records in the Tower, which means that it was unknown to William and Robert Bowyer and to Prynne.2 Henry Elsynge, the elder, however, frequently cites a roll of I Edward III in the eighth chapter of his treatise on the Manner of holding Parliaments in England-, all the citations can be found in Titus E. i and we need not suppose that the author had access to the original. Earlier than the year 1624, when Elsynge was writing his book,3 we cannot trace any reference to the roll; we do not know when or how it escaped from official custody nor what became of it; all knowledge of it derives, we suspect, from a single abbreviated transcript of the sixteenth century. We can, however, form a good idea of the original roll, which consisted of at least eleven 1

Additional MS. no. 34711, f. 300. James West, President of the Royal Society, was a wellknown antiquary and collector, many of whose manuscripts are now among the Lansdowne collection. We cannot trace this particular manuscript in the sale catalogue (B.M. 821. i. 28) : presumably it was not considered worth separate description. 2 William Petyt, lus Parliamentarian, p. 34, cites one case from ' Petit. Parliam. I Edw. Ill' which comes from this roll, but doubtless his source was a transcript (cf. Rot. Par/, ii. 440). 3 The original draft, written 1624-5, appears to be Harl. MS. no. 1342, which was used for T. Tyrwhitt's edition of 1768. Elsynge was related to the Bowyers and was nominally joint keeper of the records with Robert from 1604 to 1612 : he refers (p. 92) to ' my uncle Boyer's collections of honour and arms,' but it would seem that he did not derive his knowledge of this parliament roll from the Bowyers.

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xxi 17

membranes and contained petitions with responses and proceedings before the council, in form similar to that of several of the parliament rolls of Edward II.1 Easter Parliament 1328. Chancery Parliament and Council Proceedings 6/8 is a single membrane of petitions and responses: they appear to be those which, having been tried by a panel of auditors for Gascony, the Channel Islands and Ireland, were referred for the king's decision. This document is related to Chancery Parliament and Council Proceedings 66/27, seven membranes containing brief abstracts of petitions and responses. November Parliament 1330. Chancery Parliament Roll, no. 2, mm. 7, 6, 5 (printed Rot. Par/. ii. 52-60). These three membranes originally constituted a separate roll. At the foot of m. 5 is the note ' Respice in tergo,' but m. 5 d is blank, the reference being to m. 7 d and m. 6 d. At the head of m. 7 d there is this inscription : * Rotulus iste de parliamento tento apud Westmonasterium in crastino beate Katerine virginis anno regni regis Edwardi tercii a conquestu quarto liberatus fuit in cancellaria Regis per Henricum de Edenestowe clericum de parliamento die veneris ante festum sancti Martini anno regni eiusdem quinto.' It should be noted that the roll was not deposited in chancery until nearly ten months after the parliament ended. Exchequer Parliament and Council Proceedings, 2/16. Three membranes of petitions and responses. These appear to be the petitions expedited by the auditors of petitions, those which came before the council being presumably entered on Edwinstow's roll. English, Gascon, and Channel Island petitions are intermixed. Michaelmas Parliament 1331. Chancery Parliament Roll, no. 2, m. 4 (printed Rot. ParL ii. 60—63). At the foot of the dorse of this membrane is the inscription : ' Memorandum quod iste vltimus rotulus liberatus fuit in cancellaria regis vicesimo quinto die Februarii anno regni Regis Edwardi tercii post conquestum sexto per Henricum de Edenestowe clericum de parliamento.' This membrane was therefore deposited separately in chancery a considerable time after the parliament ended and was stitched to the record of the previous parliament. The form of this enrolment should be noted : it obviously approaches the journal form adopted in later parliament rolls of Edward III and marks a new departure. Lent Parliament 1332. Chancery Parliament Roll, no. 2, m. 3 (printed Rot. Par/, ii. 64-66). At the foot of the dorse of this membrane is the inscription : ' Rotulus de parliamento tento apud Westmonasterium in crastino sancti Gregorii anno regni Regis Edwardi tercii post conquestum sexto liberatus in cancellaria Regis per Henricum de Edenestowe clericum de parliamento.' The blundered date will be noted : both in the writs of summons and in the heading to this roll the date of the meeting of parliament is clearly Monday after St. Gregory. September Parliament 1332. Chancery Parliament Roll, no. 2, m. 2 (printed Rot. Par/, ii. 66-67). The dorse is blank : there is no inscription corresponding to those on the preceding membranes. Chancery Parliament Roll, no. 3 : a single membrane (unprinted), the contents of which are sufficiently indicated by the title : ' Transcripta peticionum quorundam de Vasconia exhibitarum in parliamento Regis Edwardi tercii post conquestum apud Westmonasterium in crastino Natiuitatis beate Marie anno regni eiusdem Regis Edwardi sexto. Et responsiones facte ad easdem.' December Parliament 1332. Chancery Parliament Roll, no. 2, m. i (printed Rot. ParL ii. 6j-6q). This is a slightly narrower membrane than those preceding it. On it is entered as well a record of the proceedings at the following Hilary parliament. Hilary Parliament 1333. Besides the record enrolled on Chancery Parliament Roll, no. 2, there is a single membrane—Chancery Parliament and Council Proceedings, 6/20—endorsed : ' Peticiones communitatis exhibite coram Rege et Consilio suo in parliamento tento apud Eboracum in octabis sancti Hillarii anno regni regis Edwardi tercii post conquestum sexto.' Lent Parliament 1334. Chancery Parliament Roll, no. 4. A single membrane. This was known to William Bowyer, whose English abstract is printed in Cotton's Abridgement of the Records in the Tower, pp. 15-16, but it seems to have been mislaid before the end of the sixteenth century. The editors of the Rotuli Parliamentorum were unable to find it and were able merely to print 1 See ante, vi. 151-2.

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Bowyer's abstract (see pp. 376-7). The purpose of the roll is explained by the opening paragraph : ' Fait a remembrer qe come au parlement le roi Edward roi Dengleterre le tierce apres le conqueste somons a Euerwyk' le lundi proschein deuant la feste seint Pier in Cathedra Ian de son regne vttisme, diuerses peticions furent baillez en dit parlement par gentz de commune dont ascuns furent acordez en dit parlement de faire en estatut, ascunes de enrouller oue les responses faites a yceles a demorrer en chauncellerie, et ascunes nient responduz pur auoir ent meilleur informacion et auis. E les peticions queles sensuent od les responses furent liuerez a Sire Michel de Wath Gardein des Roules de la dite chauncellerie a demorrer y par Henri de Edenestowe clerc du dit parlement pur enrouller et a faire ent briefs quand mester serra.' Lent Parliament 1336. Exchequer Parliament and Council Proceedings, roll no. 88. Four membranes of proceedings on petitions by the prior of Coventry and queen Isabella, subsequently continued before the council elsewhere. We need not deal in any detail with Chancery Parliament Rolls, nos. 5 to 31. They have all been printed and indifferently edited in the Rotuli Parliamentorum. It should be observed that the paragraphing of the printed edition is arbitrary and does not follow the manuscript; similarly, the editors have sometimes printed bold headings where the manuscript has no such interruption. The indications of beginnings and endings of membranes are not infrequently erroneous. The editors sometimes ignored vacated entries as they ignored the inscriptions on roll no. 2, to which we have drawn attention above. In the notes below, we indicate the more important omissions as well as other matters of interest. Chancery Parliament Roll, no. 6 (printed Rot. Par/, ii. 107-111). At the head of m. id the heading of the recto is repeated ' Les Remembrances du Parlement somons a Westmoustier as oyetaves de la seint Hillarie ...' There follows' Rotulus parliament! de anno regni regis Edwardi tercii xiiim0,' then, after a space, ' La proclamacion darmes porter. Pur ceo qe auant ces heures . . .' (as in roll no. 5, Rot. Par/, ii. 103). Chancery Parliament Roll, no. 7 (printed Rot. Par!, ii. 112-116). Note that the name of the clerk of the parliament is clearly Thomas Brayton and not Drayton as printed (Rot. Par/, ii. 112, and also pp. 126, 135, 146 etc.). Chancery Parliament Roll, no. 8 (printed Rot. Part. ii. 117-126). What purports to be an extract from the roll of the parliament of July 1340 is inserted in letters patent of 25 July 1340 (Register of John de Grandisson, p. 63) : this document seems evidently to be the letter given to the knights to take to the counties, but the extract differs both in form and substance from the corresponding entry in roll no. 8 (cf. Rot. Par/, ii. u8f., nos. 10, n). Chancery Parliament Roll, no. 17 (printed Rot. Par!, ii. 246-253). As noted above, this is a record of the proceedings of the great council which met at Westminster on 16 August 1352. Since it was stipulated that the ordinances of the staple, agreed to at this meeting, should be confirmed in the following parliament, both the confection of this roll and its presence among the parliament rolls are easily explained. It does not seem to have been customary to make a separate roll for the proceedings of a great council. Chancery Parliament Roll, no. 22 (printed Rot. Par/, ii. 280-282) contains merely the ordinances passed in the Michaelmas parliament of 1363 which are also to be found on the Statute Roll (see Statutes of the Realm, i. 378-383, where the variant readings are noted). The petitions on which the ordinances are founded are on roll no. 21. Chancery Parliament Roll, no. 27 (printed Rot. Par/, ii. 303-8). The editors have omitted three vacated entries of some importance : petitions of the commons, of which two relate to subsidies in money and men, whilst the other seeks to restrict the jurisdiction of the chancery. These petitions, although entered on the roll, were abandoned : against each is the note ' non fuit lecta.' Chancery Parliament Roll, no. 29 (printed Rot. Par/, ii. 316-320). A vacated petition from the commonalty of merchants (which should follow p. 320, no. 32) is omitted. A schedule is attached to the roll repeating the terms of the grant at p. 317, no. 12.

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NOTES Page 65, n.2 Richardson and Sayles, Irish Parliament in the Middle Ages, c. 7. 67, n.3 Throughout for ante read Bull. Inst. Hist. Research. n.4 Ancient Correspondence, XXXV. 121: appointment of a clerical proxy for Christ Church, Canterbury, to the 'colloquium' at Lincoln (see also ibid., XXXV. 130). 71, n.5 Below, pp. Iff. 73, n.l Above, XVI. 75. n.2 Above, V, 148-9, XVI. 84. n.7 printed Richardson and Sayles, Rotuli Parliamentorum Anglie Hactenus Inediti, pp. 224-230. 74, 1.4 For the rise of procedure by bills in royal, franchisal and local courts all over England which made procedure by bill (or petition) less necessary, as the government must have realised, see Sayles, The King's Parliament of England, pp. HOf. 1.9 See below, XXVI. 75, n.2 Note also the grant of a twentieth 'en son tretiz a Nicole' in 1327 (K.R. Memoranda Roll, no. 104, Michaelmas Recorda). n.7 Cf., however, Chancery, Parl. and Council Procs. 7/26: a list of petitions to be answered before the king and the great council, apparently at the council in August 1352. 77, n.3 printed Richardson and Sayles, op. cit., pp. 126-141. 79, App. I 21 February 1334 See Ancient Correspondence, LXI, 46, for an otherwise unrecorded prorogation of this parliament. 26 May 1335 Add Ancient Correspondence, XXXVII. 152. 3 February 1338 See Chancery Warrants 240/10493: a privy seal letter of 12 December 1337 to the chancellor for writs under the great seal 'si trenchauntes come vous sevarez et purrez' for summons to parliament at Westminster on 3 February 1338. 1, 1.9 For 1340 read 1347. 2, n.l This statement repeats that contained in the Ordinances of 1311, as J. G. Edwards pointed out in Bull. Inst. Hist. Research, XXVI. 200-213. 4, 1.12 For the common law jurisdiction and the equitable jurisdiction of the chancery in Edward Ill's reign, see Sayles, King's Bench, iv. pp. Ixvii-xcvii. n.2 There are numerous petitions entered on the plea rolls of the king's bench and the exchequer. n.7 printed Richardson and Sayles, op. cit., p. 279f. 5, par.2 E.g. Controlment Roll, no 4 (13 Edward III), m. 12d: a man had been indicted of trespasses in Lincolnshire and outlawed. He had then been arrested in London on an appeal of robbery. Who was to have him in custody? It was decided in full parliament that, since the robbery was more heinous than the trespasses, he was to go back to Newgate; ibid., no. 9 (22 Edward II), m. 22: a petition in parliament, complaining that 'outlawed jurors' had served on an indictment jury; King's Bench Roll, no. 307, m. 22, crown: a discussion is to be held in parliament on the question whether Montgomery was within co. Salop and subject to the law of England. 14, n.2 See also Rot. Parl. ii. 113, no.7: in 1340 twelve knights were to serve with magnates for the purpose of drafting statutes; six citizens and burgesses were added, apparently by afterthought; Favent, HistoriaMirabilisParliamenti (Camden Misc., XIV) ed. Me Kisack, p. 15: in capitulo autem abbatie conveniebant milites comitatuum consilia ad materias eorum tractaturi (1388). n.6 For further discussion of the speaker of the commons see XXIV. 45 and J. S. Roskell, The Commons And their Speakers (1965). 15, App. II In line 8/or August 1352 read September 1353. n.6 XIX. 131-132. 17, Chancery Parliament Roll, no.3: printed Richardson and Sayles, op. cit., 216-223. Hilary 1333: printed op. cit., pp. 224-230. Lent 1334: printed op. cit., pp. 232-239. 18, Lent 1336: printed op. cit., pp. 240-266. Chancery Parliament Roll, no. 17: For 16 August 1352 read 23 September 1353.

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XXII The Kings Ministers in Parliament, 1 2

3 7-i377

THE PAELIAMENTS OF EDWARD III ARLY in the reign of Edward III rolls of petitions ceased to be written by the receivers and the sole roll to be drawn up to record the proceedings was that of the clerk of the parliament. It is upon these rolls that we have chiefly to rely for our knowledge of parliamentary procedure, and since they cover the greater part of the reign—they are continuous from 1339 to 1355 and from 1362 to 1377, while an earlier roll contains the record of six parliaments from 1330 to 1333—they seem to promise much.1 Unfortunately they were drawn up on no uniform plan : each clerk seems to have followed his own devices ; and this lack of method leaves in doubt some matters of great interest, for we cannot distinguish with certainty between what is unusual in itself and what it is unusual to record. Subject to these limitations —limitations certainly no greater than those imposed by the material at our command for earlier periods—the lines of the development of parliamentary procedure from 1327 to 1377 are sufficiently plain. In our examination of the evidence we proceed in the same order as when we were dealing with the ministers of Edward I and Edward II. First we discuss the clerk of the parliament, then receivers and auditors of petitions ; we are able, however, to say something of the procedure in full parliament as well as before the council and committees ; and finally it is possible at this period to say a little of the officers of the commons. The first clerk of the parliament under Edward III seems to have been Henry of Edwinstowe. He was certainly clerk in November 1330,2 and may already have been performing that

E

1 For a description of the parliament rolls of Edward III, see Bull. Inst. Hist. Research, ix. 15 ff. 2 Rot. Parl. ii. 52, 255. Endorsements on Chancery Parliament Roll, no. 2, mm. 4, 3, show that he was serving in the parliaments of Michaelmas 1331 and Lent 1332 : see Bull. Inst. Hist. Research, ix. 17. He was again serving in the Hilary parliament of 1333 (Sot. Parl. ii. 68 (no. 1)) and in the Lenten parliament of 1334 (Bull. Inst. Hist. Research, ix. 18).

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office in the first parliament of the reign, for it was he who delivered into the chancery the record of the proceedings on a petition of the bishop of Hereford before the council in the Candlemas parliament of 13271, and in 1334 he was excused from duty except in chancery or in parliament in consideration of his constant fidelity and continual labours ' quos in cancellaria nostra et progenitorum nostrorum regum Anglie ac parliamentis nostris quorum clericus extitit et adhuc existit pro nostra et tocius populi nostri vtilitate multipliciter sustinuit'.2 From 1334 there is a gap in our knowledge until 1340, when we find Thomas of Brayton acting as clerk of the parliament, and he continues to serve this office until at least 1346.3 He was probably succeeded by John of Coddington, who is named as clerk of the parliament in 1351 and 1352.4 For the rest of the reign no names seem to have survived, although the clerk of the parliament is mentioned in connexion with the parliaments of 1371 and 1377.5 This in itself would suggest that the office was no longer of great consequence, as it had been in the days of Kirkby and Rothbury. The three clerks whose names we possess were all senior clerks of the chancery ;6 but the fact that they were chosen to act as clerk of the parliament does not seem to imply that they had any precedence over the other senior clerks. Thomas of Brayton, for example, acted as receiver of petitions both before and after he served as clerk of the parliament ;7 and of the three whose names we know none received promotion in the chancery or elsewhere. The duties of the clerk of the parliament under Edward III included, of course, that of keeping a roll8, the roll which, begin1 Chancery, Parliament and Council Proceedings, 6/5 : ' Recordum pro episcopo Herefordensi liberatum in cancellaria per dominum Henricum de Edenestowe.' This is the record of which a transcript is to be found on the patent roll of 3 Edward III, printed Rot. Parl. ii. 427 f., Col. of Pat. Rolls, 1327-30, p. 365. " Patent Roll, no. 183 (8 Edward III), m. 27 ; Cal. of Pat. Rolls, 1330-4, p. 527. The passage we have quoted suggests that Edwinstowe did not act as clerk of the parliament under Edward II, 3 Hot. Parl. ii. 112 (no. 3), 126 (no. 1), 135 (no. 1), 147 (no. 4), 157 (no. 4). Except in one instance (ibid. p. 68 (no. 1)), the printed Rotuli Parliamtntorum mis-spell the name as ' Drayton '; there is, however, no doubt of the reading ' Brayton '. Dr. B. Wilkinson appears to be the first to question the form ' Drayton ' (Chancery under Edward HI, p. 82, n. 6). 4 Rot. Parl. ii. 226 (no. 7), 236 (no. 5). 6 Ibid. pp. 304 (no. 8), 374 (no. 87): similarly in 1348 the clerk of the parliament is mentioned but not by name (ibid. p. 201 (no. 4)). 6 ' Grands Clercs ', ' clerici de primo gradu ' or ' clerici de prima forma ', the future ' masters in chancery'. They were twelve in number, certainly from the time of Edward II (Maxwell Lyte, Great Seal, p. 4). The expression ' greater clerks ' is not a happy rendering of contemporary usage. 7 He was a receiver on at least eight occasions between 1333 and 1355 (Rot. Parl. ii. 68, 112, 146, 164, 225, 236, 254, 264). 8 Besides the evidence of Chancery Parliament Roll, no. 2, that the clerk of the parliament himself handed in his roll to the chancery (Bull. Inst, Hist. Research, ix.

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ning as that of the council, became at last the sole parliament roll.1 Upon him seems to have devolved the duty of causing formal proclamation to be made against bearing arms or playing games.2 He is seen also conveying a message to the justices of the common bench requiring them either to proceed to final judgement or, if they could not agree, to come into parliament with the rolls and record of the plea.3 In the light of subsequent constitutional developments his most significant duty was to receive, and read the replies to, the petitions of the commons, which did not go, like individual petitions, to the receivers.4 Under Edward III the receivers of petitions were, so far as we have knowledge of them, invariably chancery clerks. For the first six years of the reign we have no names, and at the parliaments of Lent and December 1332 it would seem that no receivers were appointed,5 but from 1333 it was the rule to select the receivers from the senior clerks of the chancery.6 Compared with the receivers of the previous reigns their duties were restricted. The growing practice of including petitions of general interest among those presented by the commons limited those which came into the hands of the receivers to petitions of personal interest from individuals. Again, the chancellor's jurisdiction in equity, which undoubtedly grew steadily between 1327 and 1377, must have reduced very considerably the stream of petitions presented to 17) we find the chancellor in 1351 giving John of Coddington a copy of certain proceedings to enter ' en ronle de parlement' (Rot. Part. ii. 226 (no. 7); cf. ibid. iii. 75 (no. 18)). Who actually wrote the roll ia another matter. After the Lenten parliament of 1334, Edwinstowe, the clerk of the parliament, handed to Michael of Wath, the keeper of the chancery rolls, the commons' petitions with responses ' pur enrouller' (Bull. Inst. Hist. Research, ix. 18). Again, on 29 January 1331, apparently at the close of the parliament summoned for 2(i November 1330, in the presence of the chancellor, the chief justice of the king's bench, and others, a copy of a recognizance was handed to master Henry of Cliffe (Wath's predecessor) to enter on the chancery rolls (Rot. Part. ii. 59 (no. 18)) : it is in fact found on Chancery Parliament Roll, no. 2, m. 7 d, which was handed in to the chancery in November 1331 by Edwinstowe, and also on the close roll (Col. of Clow, Rolls, 1330—3, p. 179). We know of no evidence for Dr. Tout's statement that the duties of the ulerk of the parliament included ' the drafting and enrolment of the statutes into which accepted petitions were supposed to be turned ' (Chapters in Mediaeval Administrative. History, iii. 448). 1 As to this development see Bull. InM. Hint. Kf.KearrJt, ix. 5. 2 Hot. Part. ii. 236 (no. 5): hut note that, on the occasion of the Hilary parliament at York in 1333, the steward and marshal and the city authorities made proclamation (ibid. p. 68 (no. 4)). 3 Hot. Parl. ii. 123. 4 Ibid. pp. 160 (no. 11), 201 (no. 4), 304 (no. 8), 374 (no. 87); and see below, p. 387. s Bull. Inst. Hist. Research, viii. 73. 6 There are, of course, gaps in our information, but we think the rule may be assumed. Actually we possess the names of forty-one receivers at twenty-two of the thirty-seven parliaments from 1333 to 1377 ; we forbear to give a list. The fact that a clerk has acted as a receiver of petitions in parliament is usually noted by Dr. B. Wilkinson in his biographies of senior chancery clerks (Chancery under Edward III, pp. 149 ff.).

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parliament. It is not altogether surprising, therefore, that quite early in the reign the practice ceased of enrolling individual petitions and their answers, a task that had fallen upon receivers of petitions under Edward II.1 The receivers can have been required to do little if anything more than to receive petitions—a duty they may well have performed by deputy—probably to reject those which for any reason were not considered to be parliamentary,2 and finally to act as clerks to the auditors and to retain petitions in their safekeeping until they had been answered.3 These duties do not strike the modern mind as very onerous or very dignified. The office of clerk of the parliament might without difficulty be doubled with that of receiver of petitions ;4 and although at nine parliaments between 1362 and 1377 the keeper of the chancery rolls acted as a receiver,5 we can prove that on occasion the duty was given to the most recently appointed senior clerk.6 1 Supra, p. 194, n. 5. For enrolments of this kind in the early years of Edward III see Bull. Inst. Hist. Research ix. 5, 17 f. 2 We must infer that this was done. In some cases the auditors may have decided that a petition ' non est petitio parliamenti' after it had been accepted by the receivers (Rot. Parl. ii. 75-7 (nos. 12, 15, 16, 18, 20), 88 (no. 64), 274 (no. 3)), but as soon as a distinction became recognized between parliamentary petitions and others, the receivers must surely have exercised their discretion. 3 This seems the inference to be drawn from the direction given at the Hilary parliament of 1333 ' que le remenant des petitions demoergent souz les sealx des triours en la garde des clercs tantque a lendemein, et issint de jour en jour ' (Rot. Parl. ii. 68 (no. 3)). Other evidence is supplied by two petitions that can safely be ascribed to 1362 : Ancient Petitions, nos. 814 and 827, printed (one of them unsatisfactorily) Rot. Parl. ii. 409 f. (no. 177), 412 (no. 192). The former obviously served as the cover of a bundle of petitions and has two endorsements : ' Cotyngham, bille de parliamento, anno xxxvj ' ; ' Responsum est inter peticiones domini Walter! Power '. The latter is endorsed ' Sire David ad dit qe ceste bille est esplotee '. The three men here concerned are Thomas of Cottingham the younger, Walter Power, and David of Wooler, who were receivers of English petitions in the Michaelmas parliament of 1362. We may also add a piece of evidence from the previous reign. Chancery, Parliament and Council Proceedings, 5/4 is the cover of a file of petitions and is inscribed: 'Peticiones W. de Herlaston' de parliamento regis apud Westmonasterium in octabis sancti Michaelis anno quartodecimo, quibus responsum erat per auditores peticionum, liberate in cancellariam ad expediendum.' William of Harlaston was, as we have seen, a receiver at the Michaelmas parliament of 1320 (supra p. 195). 4 As by Edwinstowe at the parliament of Hilary 1333 and Brayton at the parliaments of Lent 1340 and Trinity 1344, and again by John Scarle from 1384 to 1394 (Rot. Parl. iii. 184, 203, 215, 228, 257, 277, 284, 300, 309): but we must note that the same arrangement had been made under Edward I and Edward II (ante, xlvi. 543: supra, p. 194). 5 David of Wooler in 1362, 1363, 1365, 1366, 1368, 1369, and William of Burstall in 1373, 1376, 1377, and also under Richard II. From Burstall's time it became the rule for the keeper of the rolls to head the list of receivers of English petitions, although there is a lapse under Henry VII (Rot. Parl. vi. 440, 458). 6 The evidence is supplied by a privy seal letter of Edward III (Chancery Warrants, i. 264/12898), which is of sufficient interest to merit printing in full: 'Edward par la grace de dieu roi Dengleterre e de France e seigneur Dirlande au gardein de nostre grant seal saluz. Come nadgaires pur la grande suffisancie e sages auisementz qi feurent tesmoignez deuant nous e nostre counseil es parties de dela par gentz dignes de foi de nostre cher clerc Esmon de Grimesby clerc de nostre chancellerie eussiens equis par nos especiales lettres par assent e auis de meisme nostre counseil leuesqe de

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Already in the reign of Edward II it had become the rule to divide the petitions received at a parliament into two lots, English petitions always falling into one and Gascon into the other, petitions relating to other lands being grouped with these upon no fixed plan.1 For each group a panel of receivers and a panel of auditors were appointed in every parliament, and these panels we may call English and Gascon respectively. The panels varied in numbers, with a tendency to increase in the last few years of Edward Ill's reign. In 1346 there was, quite exceptionally, only one receiver for either group of petitions.2 As a rule, the number of receivers on either panel was three ; but the English panel had four members in 1340, 1371, 1372, and 1377,3 and five in 1373 and 1376 ;* the Gascon panel had two members only in 1333 and 13736 and four in 1376 and 1377.6 Some senior clerks of the chancery acted as receivers over long periods, although not always at consecutive parliaments ; for example, Thomas of Brayton between 1333 and 13557 and Walter Power between 1351 and 1373.8 It seems to have been the almost invariable practice for a clerk, so long as he remained a receiver, to deal exclusively either with the English or the Gascon group of petitions ; but Elias of Grimsby, who was a Londres, qi est a dieu commandez, adonqes nostre chancellor, qil vousist resceiure le dit Esmon a lestat destre vn de nostre grantz elercs portantz noz robes en nostre dite chancellerie en lieu maistre lohan de Blebury nadgaires vn de meismes nos olercs, qi adonqes estoit mort. Et auant la venue de noz dites lettres au chancellor susdit si feust nostre cher clero lohan de Wodehous resceu a meisme lestat e issint noz dites prieres ne pristrent nul effect a celle foiz. Et ore Thomas de Hamburgh' vn de noz elercs susditz est a dieu commandez, nous desirrantz molt de cuer qe nos dites prieres ensi f aites pur le dit Esmon soient acomplies vous prions cherement qe vous resceuiez le dit Esmon a lestat susdit e lui facez auer noz robes e toutes autres choses qi appartienent a meisme lestat en manere come ont noz autres elercs susditz pur amur de nous issint toutes voies qe le dit Esmon soit en toutes maneres resceu deuant nul autre a lestat susdit car ce est expressement nostre volontee. Done souz nostre priue seal a Windesore le xvi iour dauril Ian de nostre regne dengleterre quatorzisme e de nostre regne de France primer.' Edmund of Grimsby was not one, therefore, of the senior clerks at the time of the Midleut parliament of 1340, but we must assume that the warrant was soon after acted upon. We do not know the names of the receivers at the July parliament of 1340; but at the next parliament, at Easter 1341, Grimsby acted as receiver. Woodhouse, who is mentioned in this letter, was obviously appointed while Richard Bintworth, bishop of London, was chancellor (6 July 1338 to 8 December 1339), and this appointment was confirmed on 15 April 1340 (Gal. of Pat. Rolls, 1338-40, pp. 462 f.). He, too, appears as receiver of petitions for the first time in the Easter parliament of 1341. Incidentally this document enables us to supplement and correct Dr. Wilkinson's biographies of John of Blewbury and Thomas of Bamborough (Chancery under Edward III, pp. 151, 154). 1 For the receivers under Edward II, see supra, pp. 195 f.; for the grouping of petitions, see infra, p. 384, n. 1. * Rot. Parl. ii. 157. " Ibid. pp. 112, 303, 309, 363. 4 Ibid. pp. 317, 321. * Ibid. pp. 68, 317. 9 Ibid. pp. 321, 363. 7 On three occasions between these dates—in 1341, 1343, and 1346—Brayton acted as clerk of the parliament and not as receiver (Rot. Parl. ii. 126, 135, 157). 8 Ibid. pp. 225, 236, 254, 264, 268, 276, 283, 289, 294, 299, 303, 309, 317.

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receiver on the Gascon panel between 1341 and 1352,1 appears on the English panel in 1354 and 1355.2 That this arrangement reflected in any way the internal arrangement of chancery business we are inclined to doubt: the grouping of petitions by country of origin varied too often to make it likely that the procedure of receiving and trying was arranged to serve the convenience of the chancery. Nor is there evidence under Edward III, as there is under Edward I and Edward II, of the careful selection of receivers qualified to deal with the questions of law and administration arising out of the petitions they handled.3 On the other hand, there is much to suggest that their duties were tending to become formal. It is indeed plausible to suggest that the appointment of the keeper of the rolls to act as receiver and the growing numbers of receivers as the numbers of petitions declined indicate the growth of ceremonial in parliament. When eight or nine out of a total of twelve senior chancery clerks act in the capacity of receivers,4 we find it difficult to resist the conclusion that the whole of those immediately available were given an honorary office to ensure their presence in parliament. The change in the composition of the panels of auditors of petitions which we have noticed under Edward II was permanent. It was clearly the rule from the beginning of the new reign that prelates, magnates, and 'gens de loi' were required to make up the panels : without them it was impossible to try or answer petitions.5 We possess particulars of these panels for less than half of the forty-eight parliaments of the reign, and for only one parliament (that of Hilary 1333) in the period before 1340,* but there can be no doubt that the evidence we have is representative. In 1333 the English panel consists of three bishops, two barons, and four judges, together with the chancellor (himself a bishop), the chief justice of the king's bench, and the treasurer when their assistance is needed ; the Gascon panel is similarly composed of three bishops, two barons, two judges, the chancellor, the chief justice, and the treasurer.7 In the Lenten parliament of 1340 the English panel consists of three bishops, five barons, and four judges, the Gascon panel of three bishops, five barons, and six a Rot. Parl. ii, pp. 126, 135, 146, 164, 225, 236. Ibid. pp. 254, 264. Ante, p. xlvi. 545f.; supra, 196. 4 As in 1376 and 1377, and also under Kichard II (Rot. Parl. iii. 4, 33, 56, 72, 89, &o.). 6 Rot. Parl. ii. 67 (no. 1) : ' Et la cause par qoi peticions ne feurent pas resceus et responduz a meisme le parlement [of December 1332] si fu do ce qe prelatz et autres grant/; et auxint gentz de ley ne feurent pas venuz au dit parlement qi les poeint trier et respondre a iceles.' 6 A list of Edward Ill's parliaments will be found in the Bull. Inst. Hist. Research, viii. 78 ff. From Midlent 1340 onwards we have particulars of the panels at every parliament with the exception of July 1340, Midlent 1348, November 1355, Easter 1357, Candlemas 1358, Ascension 1360, and January 1361. 7 Rot. Parl. ii. 68. 1

3

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official members : either body might call for the assistance of other members of the council.1 The six officials on the Gascon panel were these : Robert of Saddington, a common lawyer who had been made chief baron of the exchequer ; John Inge, a justice of the common bench ; John of Shardlow, a justice of the king's bench ;2 master John of Hildesley, who had been made one of the twelve senior clerks of chancery in 1323, baron of the exchequer in 1332, and chancellor of the exchequer in 1334 ;3 John of Shoreditch, a canonist who had been taken from the court of Arches to attend specially to the king's Gascon affairs and was soon to be appointed to the newly-constituted supreme court of Guyenne ;4 and Robert of Scarborough, another justice of the common bench. We note more particularly the presence of Hildesley and Shoreditch, for it is the last occasion upon which the auditors include any one who might be regarded as specially competent to deal with points of law arising out of petitions from Gascony. When Edward decides seriously to assert his title to the crown of France he must perforce set up for his French subjects a court to replace the parliament of Paris, and the English parliament will not serve that purpose.5 It is true that in 1348 the constable of Bordeaux6 will be named among the auditors who are to deal with Gascon petitions ;7 but similarly the justice and treasurer of Ireland will be called upon to assist with the Irish petitions.8 To seek the advice of the king's ministers from Gascony, Ireland, or Wales, or any other separate administration was an obvious course to take in trying petitions, and we can trace the practice under Edward II ;9 it has not, however, for its Ibid. pp. 113f. For Saddington, Inge, Shardlow, and Scarborough, see Foss, Judges, iii. 449, 485, 489, 503, and Diet. Nat. Biog., s.v. 8 Maxwell Lyte, Great Seal, p. 4 ; Foss, Judges, iii. 443. 4 He was specially summoned to the York parliament of Easter 1322 (Stowe MS. 553 (Wardrobe Account, 1322-3), fo. 29), and in September 1323 was appointed keeper of the rolls of the king's bench, an office he doubtless exercised by deputy for the five years he held it (Tout, Place of the Reign of Edward II, p. 373). In November 1336 he was made a baron of the exchequer (Cal. of Pat. Rolls, 1334-8, p. 341). On 26 September 1343 he was appointed to the king's council in Guyenne and constituted judge of the court which was to replace the parliament of Paris (Carte, Catalogue des Rolles Gascons, i. 115 ; Foedera, 11. ii. 1236). He had returned to England by July 1345, when he was murdered by his own servants (Murimuth, Continuatio Chronicorum, p. 171). Shoreditch's own account of his earlier career is in Rot. Parl. ii. 41 : for other details, see Foss, Judges, iii. 506 ff., and Diet. Nat. Biog., s.v. 6 We still lack an adequate study of the judicial organization of those parts of France that acknowledged the jurisdiction of Edward III and his successors from 1340 onwards. 6 John Walwayn (Rot. Parl. ii. 164). 7 We may note also the presence of the ' Sire de Bret' (i.e. Bernard Ezii d'Albret) among the auditors of Gascon petitions in 1352: but he is not an official (Rot. Parl. ii. 236). 8 Ibid. p. 164. The archbishop of Dublin is an auditor in 1376 but is included in the Gascon panel, which no longer deals with Irish petitions (ibid. p. 321). » See Rot. Parl. i. 378 (no. 61), 385 (no?, 116-18), as to consultation with the 1

2

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object the strengthening of the panel with those learned in other laws than the common law of England. The year 1340, then, is a turning point. Henceforth, besides those ministers who act ex officio, three, four, or five judges from the three courts of common law are called upon to sit on the panel of auditors of English petitions and two, three, or four on the Gascon panel.1 The ministers invariably include the chancellor and treasurer.2 In 1348 the archbishop of Canterbury and the chief justice are mentioned with the chancellor and treasurer as required to assist the auditors.3 But we may notice that William of Thorpe, the chief justice of the king's bench, who is intended, was among the auditors of English petitions, and the purpose merely was to add him to the panel of auditors of petitions from Gascony, Wales, Ireland, and other foreign lands ; the chief justice of the king's bench similarly served on both panels in 1352 and 1354, but on these occasions William of Shareshill is included by name in both lists.4 We have already remarked the inclusion of master John Walwayn, the constable of Bordeaux, among the auditors of Gascon petitions, and the justice and treasurer of Ireland among the auditors of Irish petitions. More noteworthy is the direction given to the auditors of English petitions in 1348 to call upon the king's serjeants-at-law, for from this year onwards they are invariably placed at the service of the auditors, at first only for English petitions,5 but from 1362 onwards for all petitions.6 From 1351 the steward of the household and the king's chamberlain are included with the chancellor and treasurer as available for service with the auditors ;7 in 1354 they are not mentioned in connexion with the panel for Gascony and foreign lands,8 but this is probably a mere oversight and is in any case quite exceptional. We should note in passing that in 1352 either Thomas of Bramber or Henry of Greystoke, the receiver and the auditor of the justiciar of Ireland at the Michaelmas parliament of 1320, and Cole, Documents Illustrative of English History, p. 16, as to the presence of the justiciar of Wales at the hearing of a petition at the Michaelmaa parliament of 1318. 1 There are three judges on the English panel in 1341, 1344, 1351, 1362, four in 1340, 1343, 1346, 1352, 1363 to 1377, five apparently in 1348 and in 1354. There are two judges on the Gascon panel in 1346, 1351, 1352, 1362, 1363, 1365, 1373, three in 1341, 1344, 1354, 1366, 1368, 1369, 1371, 1372, 1376, four in 1343, 1348 (plus William of Thorpe) and 1377. Although the two panels are always for England and Gascony, the grouping of other territories round these two vary. Up to 1354 England usually stands by itself and all other territories are grouped with Gascony; in 1346, however, Ireland is grouped with England and in 1348 Scotland is grouped with England. In 1343 Flanders, and in 1344 Brittany, are specially mentioned with Gascony. From 1362 England, Ireland, Wales, and Scotland are grouped together, and Gascony and other places together. For references, see following notes. 3 3 Sot. Pad. ii. 126, 135, 147, &c. Ibid. p. 164. 4 B Ibid. pp. 236, 254. Ibid. pp. 164, 226, 236, 254. 6 Ibid. pp. 268, 275,283, &c. It will be realized that there is a gap in our information between 1354 and 1362 and that the change may have taken place earlier. 7 Ibid. pp. 226, 236, &c. " Ibid. p. 254.

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chamber, and in 1354 the latter alone, is to be called in when any petitions affecting the chamber come before the English panel of auditors ; the intention doubtless is that they shall prevent any unwelcome action in connexion with the chamber lands.1 It will be observed that, save for a short period, the panels of auditors were fairly representative of all branches of the administration and that in the latter half of the reign either panel might on occasion include ten or a dozen ministers.2 During the same period there was a marked increase in the numbers of prelates and lords included among the auditors. At the beginning of the reign this element was small. Thus, as we have seen, in 1333 there were five on either panel, in 1340 eight; in 1341 there were six on the English and five on the Gascon panel ;3 in 1343 six on either panel, but of the two bishops, two earls, and two barons on the English panel it was clearly expected that only one of each would serve at a time.4 In 1344 the numbers have risen to ten on the English panel, six remaining the complement of the Gascon panel ;5 but in 1346 the numbers are down to three,6 the effect doubtless of the Crecy campaign and the thin attendance of magnates at parliament.7 Thereafter the numbers rise fairly steadily : eighteen and sixteen in 13638 and as many as twenty-one and nineteen respectively on the two panels in 1376.9 We need not suppose that many of the magnates took an active part in trying petitions.10 There is an artificial look about the panels : an attempt is made to balance prelates and lords, to represent abbots as well as bishops, barons as well as earls, and, of course, to include the duke of Lancaster whenever he is available.11 A body of thirty or so—adding the possible number of ministerial auditors—would obviously have been useless as a judicial tribunal, and it is equally obvious that the dignitaries whose names were formally included would not be likely to sit 1

304.

Ibid. pp. 236, 254; Tout, Chapters in Mediaeval Administrative History, iv. 285 f.,

2 Including for this purpose the king's Serjeants, who were, at that period, part of the king's judicial establishment. From 1348 the number of Serjeants normally summoned to parliament was four (Lords' Reports, iv. 574, 577, 580, 583, 585, 589, 592, 603, 605), although they may not always be mentioned in the close roll. For example, although no Serjeants are included among the list on the close roll of those summoned to the Easter parliament of 1379 (ibid. p. 682), four Serjeants were certainly present (Rot. Parl. iii. 61 (no. 26)). In 1346 and previous years two Serjeants appear normally to have been summoned (Lords' Reports, iv. 560 and see supra, p. 198). 3 4 5 6 Rot. Parl. ii. 126. Ibid. p. 135. Ibid. p. 146. Ibid. p. 157. 7 8 9 Cf. Lords' Reports, iv. 559. Rot. Parl. ii. 275. Ibid. p. 321 f. 10 The curious instructions given to the selected prelates and lords in the Hilary parliament of 1352, ' qe chescun entendreit entour le triere des petitions des singuleres persones es places ou ils furent assignez ' (Rot. Parl. ii. 237 (no. 8)), suggests that from a very early date they had failed to take interest in their nominal duties. In 1333 the commons had referred to parliamentary petitions as being ' responduz par les justices ' (Chanc. Parliament and Council Proceedings 6/20). 11 Rot. Parl. ii. 275, 283, 289, 294, 299, 321, 363.

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for long to try petitions of little public interest. For we must remember that the auditors were confined to the hearing of private petitions ; petitions of public interest were presented by the commons and with these the auditors, as such, had nothing to do.1 So poor in fact was their attendance that it became the practice in later years to fix the quorum of prelates and lords at six for the English panel and four for the Gascon panel.2 How then can we account for the growing representation of prelates and lords on the panels of auditors ? In part, we do not doubt, it was contrived with the design of outnumbering the ministerial representatives and asserting the supremacy of the ' peers '. But we suspect also that it was in part due to the mere taste for ceremonial, which led, as we have seen, to the inclusion among the receivers of petitions of as many of the senior chancery clerks as were available. The clerk of the parliament, the receivers and auditors of petitions were performing functions and filling offices which had been of great importance in the past but which under Edward III were rapidly ceasing to have their ancient significance. They represented the primitive judicial aspect of parliament, which every year now was tending to become more and more obscured. But as men resorted less and less to parliament with their personal griefs and personal hopes, so the king's business and the nation's business3 engrossed an ever greater share of parliamentary time. The king's business was presented to parliament by his ministers, and of this we have something to say later. The nation's business, the presentation of the needs and grievances of the community at large, was gradually confided to the commons. How this came about we need not discuss here,4 but we should make mention of what can be learnt of the procedure after a petition left the commons' hands. As we have already seen, petitions which were not finally 1

It is clear that the commons' petitions went directly to the great council: see Bull. Insl. Hist. Research, ix. 11. The procedure has been misconceived, among others by Dr. Tout, who supposed that all petitions went to the receivers and triers (Chapters in Mediaeval Administrative History, iii. 448); this is substantially true of an earlier period but not of Edward Ill's reign or later. a In the October parliament of 1378 the quorum was fixed at six for each panel (Rot. Parl. iii. 34), and this continued to be the rule until the March parliament of 1415, when the quorum of the Gascon panel was reduced to four (Sot. Parl. iv. 71). By this time the total number of auditors had fallen. 8 For these phrases, see Rot. Parl, ii. 60 (no. 1): ' Et auxint illoeqes feust acorde qe les busoignes le roi deusseient primerement estre exploitez, einz ce qe riens feust fait de nully autre busoigne '; ibid. p. 67 (no. 1): 'les busoignes du roi et du roialme '; ibid. p. 127 (no. 8) : ' Mes il dit qil voleit qe les busoignes touchantes 1'estat du roialme et commune profit fussent primes mys en exploit'; ibid. p. 280 (no. 38): * Et issint le parlement continue sur tretee de divers choses touehantz si bien les petitions bailliez par les communes et autres singulers persons come les busoignes du roi et son roialme '. * We have discussed the matter at some length in Bull. Insl. Hist. Research, ix. 7 if.

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determined by the auditors came before the council in parliament ;l but under Edward III this procedure was applicable only to private petitions. Petitions which were put forward or 'avowed' by the commons2 were neither presented to the receivers of petitions nor scrutinized by the auditors : they appear to have been presented to the clerk of the parliament for consideration by the council.3 The method of scrutinizing the commons' petitions had not become stereotyped by this period and there may have been a good deal of variation from one parliament to another. The point, however, which we wish to stress is that the procedure differed at every stage from that adopted in the case of private petitions, which remained essentially what it had been in previous reigns. This difference is perhaps best exemplified by entries on the parliament roll of 1340. For private petitions receivers and auditors were appointed in the regular way: those private petitions which were sent c&ram rege, that is those upon which a decision could not be taken without the king's approval, were considered by a separate committee consisting of a bishop, an earl, a baron, five justices, together with the chancellor (the archbishop of Canterbury) and the treasurer (William de la Zouch).4 The petitions of the commons, however, having been presented formally to the king and his council, were referred to a committee consisting of three bishops, the treasurer, three earls, three barons, four judges, twelve knights, and six citizens and burgesses: to the same committee were referred the petitions of the clergy. Those petitions to which this body agreed were, in so far as they were of permanent value, to be put into a statute and, in so far as they were transitory, to be incorporated in letters patent.5 2 Supra, pp. 199 For this term, see Rot. Parl. ii. 203 (no. 30). Supra, p. 379. 4 Rot. Parl. ii. 112-14 (nos. 3, 21, 29). Since the chancellor is included it appears evident that this committee could not have been set up before 28 April, for there was no chancellor when parliament met and Stratford received the great seal on that day (Wilkinson, Chancery under Edward III, pp. 200 f.). As to private petitions sent coram rege, see supra, p. 200: we need not add many examples for the reign of Edward III. Ancient Petition, no. 2148, which comes from early in the reign will serve to illustrate the nature of the petitions which came before the king and the great council. This is a request from the bishop of Durham that his chancery may be authorized to issue such writs as ad, besael, and formedon. It is endorsed ' Coram Rege et Magno Consilio ' and then ' Ceste requeste touche change de ley et ne purreit estre fait sinoun a la requeste levesque de Duresme et la commonalte del Euesche et par assent du Roi et des Prelatz, Countes, Barons et autres grantz de la terre et ce en parlement si riens deust estre fait par qoi rien ne poet estre fait a ore '. The complaint of the commons in 1362 will serve to illustrate the position regarding petitions of a purely private nature which touched the king : the triers ' font endocer les billes " coram rege ", e issint riens est fait, ne les meschiefs e grevances de rien redrescez', and the commons ask that such petitions may be disposed of by the advice of the king's ministers before the termination of parliament (Rot. Parl. ii. 272 (no. 31)). 6 Rot. Parl. ii. 113 (nos. 7, 8). Both from the position of this entry on the parliament roll and from the absence of the chancellor from the committee it seems fair to deduce that this body was set up at an early stage of the proceedings. 1 3

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We have no note of a precisely similar procedure on any other occasion, although at the Hilary parliament of 1348 a committee was constituted for trying the petitions of the clergy, consisting of two bishops, the chancellor (John Offord), the keeper of the privy seal (the bishop of St. David's), three earls, two barons, and three judges,1 and at the following Midlent parliament the commons asked for the appointment of a committee consisting of two prelates, two lords, and two justices, to hear and expedite their petitions, both those presented in the previous parliament to which no reply had been given and those to be presented in the present parliament.2 Againin 1371 the king appointed certain lords and others to consider and reply to those petitions of the commons to which no answer had been given during the parliament: the replies thus prepared were read at a subsequent great council.3 While the fragmentary nature of the evidence does not enable us to draw any final conclusion,4 the impression we get is certainly that these instances are exceptional; and we cannot deduce that a committee was normally appointed to consider the petitions of the commons and frame replies to them. What is clear is that the commons' petitions were delivered to the clerk of the parliament and not to the receivers, that they were not tried by the auditors, and that in some way the magnates were associated with the replies, which nevertheless were the replies of the king.6 Turning now to the conduct of the king's business in parliament, we may first note that all of the king's ministers might be expected to be there. Several of them, were required to represent their departments. The judges were there to assist with questions of law, both when there was judgement to be rendered and when there was legislation to be drafted.6 The serjeants-at-law were there 1 Mot. Part. ii. 164 (no. 3). * Ibid. p. 201 (no. 4). The petitions were to be expedited in the presence of four or six of the commons elected for this purpose, but these were not members of the committee : their duty was to prosecute (pursnirn) the business. * Ibid. p. 304 (nos. 8, 13). 4 We should perhaps emphasize that the rolls were prepared upon no uniform aystem : much detail which we should value was invariably omitted, but other omissions are the mere vagary of the clerk and, similarly, details may be supplied in one instance which otherwise were normally suppressed. 6 This is best demonstrated by a comparison between certain of the commons' petitions and the resulting legislation which is said to be enacted ' par assent des prelatz, countes, barons et autres grantz ' (or some similar formula). These words are, for example, used in the ' articles ' (Statutes of the Realm, i. 255 ff.) which gave effect to the petitions presented in the Candlemas parliament of 1327, replies which were evidently prepared by ' le conseil' for the consideration of the king and perhaps also of the magnates as a body (Rot. Parl. ii. 11). The assent of the magnates to the requests of the commons is often expressed (Statutes of the Realm, i. 261, 265, 270, 275, 276, 327, 371, 378), although other forms are frequently used which imply the assent of all those present in parliament in circumstances which would seem precisely similar. The question, however, of the significance of these varying formulae is too large to be discussed in a footnote. " Rot. Parl. ii. 139 (nos. 19, 23), 154 (nos. 39, 40), 330 (no. 48),

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not only to give their counsel when there was a legal problem to solve: they might have to plead the king's cause in actions to which he was a party.1 But from time to time the king would have some great question of policy, some large administrative measure, to propound ; and under Edward III war and the means of waging war became a constant preoccupation. The king did not himself present his proposals to parliament, whether they touched legislation diplomacy, war, or taxation.2 Who spoke on the king's behalf in earlier reigns we rarely know : possibly at sessions which were devoted to judicial business there was no need for set speeches. However, we learn that at the parliament of Michaelmas 1275 the chief justice of the common bench, Roger of Seaton, made a speech explaining how the king had expended all his treasure on the crusade and asking for a subsidy,3 At the parliament of Hilary 1316, William Inge, one of the judges of the common bench, brought a message from the king, deferring the consideration of the more important political business until the earl of Lancaster and other magnates arrived and arranging for the dispatch of other parliamentary business ; the earl of Hereford and the bishop of Norwich also spoke on the king's behalf at this parliament.4 On other occasions there is a suggestion that the chancellor and the treasurer may have made formal speeches.5 Edward III relied upon his chancellor, the chief justice of his bench, and his chamberlain to forward his business. The choice of a minister to make a speech or to pilot a proposal through parliament does not seem to have depended upon his office ; but a clerical chancellor must not be associated with any criticism of the pope and he would desire to refrain from any matter that might touch the criminal law. With the exception of Airmyn, who was specially charged to 1 The ' sages of the law ' who were consulted together with the justices (loc. cit.) doubtless included the Serjeants ; of. Rot. Parl. iii. 61 (no. 26), where they are specially mentioned as being consulted. Direct evidence of their acting as advocates in parliament comes from the reign of Edward II (Rot. Parl. i. 352 (no. 2), 370 (no. 3)). 2 Except when he says a few formal words of thanks, the king is rarely reported as speaking in parliament at all: for three instances see Rot. Parl. ii. 54 (no. 10), 267 (no. 30), 276 (no. 8). 3 Historical Works of Gervase of Canterbury (Rolls Series), ii. 281. Stubbs gives this and a certain number of other references, but he confines his attention to the speeches with which parhament was opened (Constitutional History, iii (1896), p. 442 f.). 4 Sot. Parl. i. 350 f. 6 This is implied by the instructions to the chancellor and treasurer to open the Martinmas parliament of 1325; the king writes ' voloms qe vous teignez nostre lieu le dit primer iour de parlement por faire ce qi appent a la iornee, fesantz sauer as prelatz, contes, barons et as autres grantz qi y serront qe nous y serroms au temps auantdit prestz de conseiller et treter sur les bosoignes pur queux nous auoms fait somondre nostre dit parlement' (Chancery Warrants, 130/7247). Presumably the same thing was expected of the treasurer and chancellor when they opened the Lenten parliament of 1305 (ibid. 53/5274: this is the document translated by Maitland, Memoranda de Parliamento, pp. Ivi. f.).

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draw up an account of certain of the proceedings of the parliament of Hilary 1316, Edwinstowe is the first clerk of the parliament to provide us with any details of the speeches of ministers. At the five parliaments from Michaelmas 1331 to Hilary 1333, the proceedings of which he recorded in a style hitherto unused, the principal speeches for the government were made by the chancellor and the chief justice of the king's bench. In the first of these parliaments, the chancellor explained what business the king wished to be considered, relations with France, the king's projected visit to Ireland, and the keeping of the peace ; he made a further speech to the magnates on relations with France and arranged for the committee to which the question was to be referred ; he specially charged les commonaltes to consider how the peace could be better kept.1 In March 1332 both the archbishop of Canterbury and the chancellor made introductory speeches. No details are given of the archbishop's speech ; the chancellor explained that the king desired advice regarding the proposal of the king of France that they should go on a crusade.2 Geoffrey le Scrope, the chief justice of the king's bench, then referred to the prevalence of organized breaches of the peace by armed companies and asked for advice how to deal with the evil: at this point the prelates and the proctors of the clergy withdrew, on the plea that they could not advise in such a matter, which suggests the reason why the chancellor did not introduce the question. Scrope is again mentioned as asking for advice on the king's relations with France ; and he made a third speech in laying before the magnates the case of John Grey of Rotherfield and William de la Zouch of Ashby, who had quarrelled in the king's presence.3 Again, in the September parliament of the same year, the chancellor "made the introductory speech,4 but Scrope asked for advice whether the king should stay, so that the business of parliament might be finished, or whether he should depart immediately for the north.5 In the December parliament, however, Scrope made the introductory speech; perhaps no further speeches were made, for the parliament was speedily adjourned on account of the scanty attendance of magnates.6 When business was resumed after Hilary, on the second day Scrope made what must have been a long speech, recounting the happenings at the two previous parliaments and asking for advice on the course to be pursued towards Scotland.7 The proceedings were terminated by a speech by the chancellor announcing the king's decision to take further advice, in particular of the pope and the king of France, and 1 Rot. Part. ii. 60 f. (nos. 1, 2, 6). * Ibid. p. 64 f. (nos. 5, 10, 12). 5 Ibid. p. 66 (no. 3). ' Ibid. p. 69 (no. 6).

2 4 6

Ibid. p. 64 (no. 4). Ibid. p. 66 (no. 1). Ibid. p. 67 b.

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the appointment of a special body of councillors to deal with Scottish relations.1 Edwinstowe's successors were, as a rule, more sparing of names, and we are often left in ignorance of the principal speakers in parliament; but it is evident that throughout the reign matters were arranged very much as in the earlier years. We may take a few examples from rolls which afford fairly full information. In 1363 parliament was summoned for Friday 6 October; on that day the chief justice of the king's bench announced an adjournment until the following Monday because there was not yet a full attendance.2 On the Monday the chancellor stated what business was to be discussed ;3 no further speeches are reported until 3 November, when the chancellor enjoined the magnates and commons to secure the observance of the sumptuary law that had been framed in the parliament and asked their advice whether it should take the form of an ordinance or of a statute.* At the Hilary parliament of 1365 the chancellor is recorded as making three speeches—setting out the business to be transacted,5 asking for a subsidy,6 and finally stating what subsidy had been granted.7 He made a similar series of speeches at the May parliament of 1366,8 but on this occasion Thomas of Ludlow, the chief baron of the exchequer, is recorded as bringing before parliament the case of William de Septvans, who had been fraudulently proved to be of age while still a minor.9 In the May parliament of 1368 it was the archbishop of Canterbury who conducted the proceedings: he announced the preliminary adjournment to permit a full attendance ;10 he made the formal speech setting out the business to be transacted j11 he made a speech to the magnates on relations with Scotland ;12 he asked for a subsidy13 and at a later stage announced to the king that a grant has been made.14 In this parliament the chief justice of the common bench, at the instance of the magnates, conducted the prosecution of John Lee, steward of the household.15 The growing importance of the king's chamberlain and the steward of the household should be remarked. They come into prominence in the Easter parliament of 1341 : it was an accident that as instruments of the king they engaged in unseemly altercations with the archbishop of Canterbury ;18 there is no suggestion that either the steward, Ralf baron of Stafford, or the chamberlain, Ibid. p. 69 (no. 7). Loc. cit. B Ibid. p. 283 (no. 1). 7 Ibid. p. 288 (no. 31). » Ibid. p. 291 (no. 14). II Ibid. p. 294 (no. 2). 13 Ibid. p. 295 (no. 8). " Loc. cit. I

3

Ibid. p. 275 (no. 1). * Ibid. p. 280 (nos. 38, 39). 6 Ibid. p. 285 (no. 9). 8 Ibid. p. 289 (nos. 1, 7), 290 (no. 13). 10 Ibid. p. 294 (no. 1). la Ibid. p. 294 (no. 7). " Ibid. p. 297 (no. 20). >e Birchington in Anglia Sacra, i. 38 fi. 2

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John Darcy, had any personal animosity against Stratford. Darcy is mentioned as standing before the king with the magnates and the commons in this parliament and formally interceding on behalf of the archbishop.1 From the fact that the chamberlain and the steward were required to swear to maintain the laws of the land it is evident that they were now among the leading ministers of the king,2 although, if we can trust the well-informed London chronicler, they were at this time regarded as upstarts and unworthy of a leading place in parliament.3 However, in the Trinity parliament of 1344, John Darcy was a prominent member of the council, and, as on other occasions, took precedence of the keeper of the privy seal.4 In the September parliament of 1346 he was one of the messengers from the king ; but this fact, of course, has no bearing upon his place in parliament.5 Darcy's successor in office, Bartholomew Burghersh, was commissioned in the Hilary parliament of 1352 to ask for the advice of the commons on the French war,6 and again in the April parliament of 1354 he asked the commons whether they were in favour of peace.7 We should not omit a passing reference to the part he played in the great council of October 1353 in requesting a subsidy on wool, hides, and woolfells.8 The last of Edward Ill's chamberlains, Robert of Ashton, introduced in the parliament of 1377 the question of action against papal usurpations, a matter that could not fitly be mentioned by the clerical chancellor.9 The steward of the household did not become prominent in parliament until the reign of Richard II,10 but, as we have already seen, he and the chamberlain were included among the auditors of petitions from the year 1351. We should note that when some one was available who, although he might not be a prominent minister, had special knowledge of business brought before parliament, he might be called upon to speak. Thus Bartholomew Burghersh, at that time a knight of the household,11 explained in the Easter parliament of 1343 the circumstances of the truce with France, because he was with the king and had a more intimate knowledge of the facts than the chancellor.12 Similarly, in the Martinmas parliament of 1355, Ibid. p41. Sot. Parl. ii. 128 (no. 10), 130 (no. 42), 132 (no. 52). In 1376 they are sworn with the chancellor, treasurer, keeper of the privy seal, and others to execute the ordinances of the continual council (ibid. p. 323 (no. 13)). 3 French Chronicle of London (Camden Soc.), p. 90. Robert Parving, who had been rapidly promoted justice of the common bench, chief justice of the king's bench, and then chancellor, was included among the upstarts, as well as William of Kilsby, keeper of the privy seal, as to whom see Tout, Chapters in Mediaeval Administrative 4 History, iii. 84 ff., 116 ff., 162 f. Rot. Parl. ii. 160 (no. 13). > Ibid. pp. 157 (no. 5), 158 (no. 7). ' Ibid. p. 237 (no. 8). 7 s Ibid. p. 262 (no. 58). Ibid. p. 251 (no. 32). 10 • Ibid. p. 363 (no. 13). Of. ibid. iii. 6, 10 ff., 34. II Cf. Tout, Chapters in Mediaeval Administrative History, iv. 115. III Rot. Parl. ii. 136 (no. 7). 1 I

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Walter Mauny spoke in place of William Shareshill, the chief justice of the king's bench, and narrated how the king had fared in his French campaign, a preliminary to a demand by Shareshill for a subsidy.1 What appears to be a very exceptional departure occurred in the Lenten parliament of 1372. The chancellor, John Knyvet, made the formal opening speech, but it was Guy Brian who announced to the lords the retrocession of Aquitaine by the prince of Wales to the king. On the following day Brian spoke again, this time to both lords and commons, and on the king's behalf asked for a subsidy.2 No reasons suggest themselves for the selection of a baron occupying no official position to act as the official spokesman on these occasions. The speeches made by the king's spokesmen which are noticed in the parliament rolls were delivered to a full assembly of magnates and commons or occasionally to the magnates or the commons separately. Much discussion must, however, have taken place in less formal fashion and, although on only one occasion have we much precise information, we must suppose that, as in earlier reigns,3 a good deal of the business was performed by committees. The one occasion on which we are well informed is the Lenten parliament of 1340 when eight committees were set up, apart from those which had to deal with petitions.4 These eight committees were very largely official in character : those concerned with questions of defence contained, besides bishops, earls, and barons, knights in the king's service. Thus, the committee appointed to consider the keeping of the Scottish march included the bishops of Durham and Carlisle, the earl of Angus, Henry Percy, Ralph Neville, and Anthony Lucy, who had received individual writs of summons, and also Walter of Crayke, William of Felton, John of Stirling, and Thomas of Rokeby, who were presumably nominated because they were in the king's service and knew the march.5 Felton, it is true, was one of the knights returned for Northumberland,6 but this does not seem to have been a reason for appointing him to the committee, since it will not account for the presence of Stirling, Rokeby, or Crayke, although the last-named had been a knight of the shire in an earlier parlia1 Ibid. pp. 264 f. (nos. 4-10). Mauny had received writs as a baron summoning him to parliament from 1347 onwards (Lords' Reports, iv. 574). He held no civil office, except the sinecure marshalcy of the king's bench, the grant of which had been obtained for him by Thomas of Brotherton, but of which he was unable to get possession for many years (Cal. of Close Rolls, 1349-54, pp. 430, 471, 587, 592; Ancient Petitions, no. 3125). 3 Rot. Part. ii. 309 f. Guy Brian had been summoned as a baron to parliament from 1351 (Lords' Reports, iv. 589). For an outline of his career, see the Complete Peerage (1912), ii. 361. 8 4 Ante xlvi. 535, 547; supra, p. 202. Supra, p. 387. 8 Rot. Parl. ii. 113 (no. 17). * Return of Members of Parliament, i. 131; for his Scottish command see Rot. Parl. ii. 115 (no. 44).

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ment.1 Similarly, the committee for keeping the Channel Islands and the sea-coasts included the bishops of London, Chichester, and Salisbury, the earls of Surrey, Arundel, and Huntingdon, and also Robert Bourchier and Constantine Mortimer (who had been, but were not in this parliament, knights of the shire for Essex and Norfolk), together with Thomas de Ferrers, the keeper of the Channel Islands.2 The committees dealing with diplomatic and financial matters included a large proportion of judges and clerks : William de la Zouch, the treasurer, who had been keeper of the privy seal;3 Geoffrey le Scrope, who had recently retired from the post of chief justice of the king's bench;4 Shardlow, justice of the king's bench; 5 John of Stonor, chief justice of the common bench ; 6 Robert of Saddington, chief baron of the exchequer ; 7 John of Shoreditch8 and William Pole,9 puisne barons ; John of Saint Pol, keeper of the rolls of chancery;10 John of Thoresby, a senior chancery clerk.11 On the committee which had to deal with the ' chevance ' of Brussels, John Pulteney, city merchant and financier, was placed.12 Only on one of these committees, that to audit the accounts of William Pole and other king's agents, were the officials outnumbered.13 It is probably due to the unusual care exercised by the clerk of this parliament that we have such detailed information regarding the committees appointed to deal with the various items of business in Lent 1340 ; we cannot, however, altogether omit the possibility that the procedure itself was unusual and certainly we have but scanty information concerning the committees appointed at other parliaments of Edward III. In the Michaelmas parliament of 1331 a committee to consider relations with France consisted of the archbishop of Canterbury, the chancellor (the bishop of Winchester), the treasurer (the bishop of Norwich), the bishops of Ely and Worcester, the earl Marshal, and the earl of Surrey, Henry Beaumont, Henry Percy, and Hugh Courtenay, Geoffrey le Scrope, chief justice of the king's bench, William of Harle, chief justice of the common bench, with his fellows John 1 John of Stirling had recently been keeper of Edinburgh castle and had then proceeded overseas in the king's service (Gal. of Close Rolls, 1339-41, pp. 289, 327). Rokeby was at the moment keeper of Edinburgh and Stirling castles (Rot. Parl. ii. 116 (no. 49)). For Crayke, see Oal. of Pat. Bolls, 1338-40, p. 139 ; 1340-3, p. 106, Return of Members of Parliament, i. 109. a For Bourchier (who was shortly to become chancellor), see Return of Members of Parliament, i. 87 n., 89, 91, 100, 124, 126 ; for Mortimer, ibid. pp. 63, 65, 70, &c. For Thomas de Ferrers, see Rot. Parl. ii. 109 (no. 32), Gal. of Close. Rolls, 1339-41, pp. 221, 491. 3 Sot. Parl. ii. 113 (nos. 14, 15, 16, 18), 114 (no. 22). 4 6 Ibid. 113 (nos. 13, 14, 15, 18). Ibid. p. 113 (no. 13). T • Ibid. p. 113 (no. 16). Ibid. pp. 113 (no. 16), 114 (no. 22). 8 Ibid. p. 113 (no. 13). " Ibid. p. 113 (no. 14). 10 n Ibid. p. 113 (no. 13). Ibid. p. 113 (no. 13). ls " Ibid. 113 (no. 14). Ibid. p. 114 (no. 22).

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of Stonor and John of Cambridge.1 In the Hilary parliament of 1333 a committee of six bishops (one of whom was the chancellor), two earls, and four barons deliberated apart on Scottish affairs, apparently with the king's official councillors.2 In the Trinity parliament of 1344 a committee was set up to settle the terms of the letters patent which were to embody the replies to the commons' petitions and the conditions attached to the grant of a subsidy ; this committee consisted of four bishops, two earls, and a baron, the chancellor Saddington, the treasurer Eddington, the king's chamberlain, the keeper of the privy seal, seven justices, John of Thoresby, keeper of the rolls of chancery, and John of Saint Pol, now keeper of the Domus Conversorum.3 -Apart from these instances we have hints of committee procedure, as when the justices and others learned in the law are consulted upon legal issues,4 and when the clerk of the parliament mentions three persons only as present when documents are handed to him for entry on the roll.5 One form of extra-parliamentary committee deserves special mention here. In the Michaelmas parliament of 1340 there was appointed a standing committee consisting of a prelate, two earls, and two barons to hear petitions complaining of delay of justice in any of the king's courts : these five, who were assisted, as we should expect, by the official members of the council, held office until the following parliament.6 The committee might either come to a decision or, in cases of exceptional difficulty, might bring the issue before parliament when it next met. Although this device left no permanent mark on the constitution, it seems to have endured for several years, for we have the record of the appointment of a fresh committee in 1344.7 The departure is of interest as testifying to the desire to keep a parliamentary tribunal in continual existence for the purpose of remedying the law's delays, one of the prime purposes which the medieval parliament was required to serve. It is in the reign of Edward III that a house of commons definitely emerges. Of the functions of the commons we propose to say nothing further here :8 but it is germane to the present discussion to refer to those who acted as their ' speaker ' and their clerk. William Trussel who spoke for the commons at the Easter parliament of 1343 was neither a knight of the shire nor a burgess, and there can be no doubt that he was in the king's service.9 It is 2 3 Ibid p. 61 (no. 2). Ibid. p. 69 (no. 6). Ibid. p. 150 (no. 13). Ibid. pp. 139 (nos. 19, 23), 154 (nos. 39, 40), 330 (no. 48). 5 6 Ibid. p. 226 (no. 7). Statutes of the Realm, i. 282 f. 7 Foedera, in. i. 13. The procedure was revived for a special case in 1385 in circumstances which point to its lonct; disuse (Rol. Parl. iii. 399). 8 We have dealt with the matter in some detail in the Bull. Inst. Hist. Research, x. 6 f f . 9 Rot. Parl. ii. 136 (no. 9). There were several William Trussels, whose careers it is not easy to disentangle (cf. Foss, Judges, iii. 307 ff., and Diet. Nat. Biog., s.v.). This 1 4

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likely that he is to be identified with the William Trussel who acted as ' proctor of the whole parliament' after the meeting at Hilary 1327.1 His presence on both occasions has puzzled those who have not realized that the king's ministers had their place in parliament. By the end of the reign, however, the commons in their dealings with the council in parliament were represented by their own members.2 When it became the practice for the commons to present those petitions of a public nature which they were prepared to avow, they obviously had need of a clerk. The earliest occupant of the office we can trace is Robert of Melton, who appears to have been acting in 1363; he was a chancery clerk and was succeeded in the next reign by another chancery clerk.3 There is no suggestion that the commons appointed their own clerk. The post was officially termed that of ' under-clerk of the parliament'; there was no need for a separate clerical establishment. Here we conclude our survey of the activities of the king's ministers in parliament. They are still called upon throughout the reign of Edward III to perform the technical work which parliament has to do and, as the administrative system develops, ministers who have assumed a new importance take a prominent place in parliament. But they all do their work in the shadow of the rising power of the peerage and the commons. The difference we cannot fail to remark between the parliaments of Edward I and the later parliaments of Edward III, we may already discern William Trussel seems certainly distinct from the receiver of the chamber in 1333-5 (Tout, Chapters in Mediaeval Administrative History, iv. 256, 286) and probably from the escheator of the same name. We would identify him with the William Trussel who was employed on various foreign missions (Foedera, ii. 1224, 1227 ; iii. 21 f. &c), and who was one of the king's messengers in the July parliament of 1340 (Rot. Par/, ii. 118-22); it was probably the same man who acted as one of the jury of knights which acquitted Thomas of Berkeley in the November parliament of 1330 (ibid. p. 57 (no. 16)). The summons sent to him on 26 February 1343 (Lords' Reports, iv. 548) was most probably in connexion with the subsequent proceedings in parliament, but he was not summoned by writ to parliament. 1 Knighton, Chronicon, i. 441. Stubbs (Constitutional History, iii. 470 n.) suggested that we have to do in 1327 and 1343 with father and son. 8 This appears to be certain from the statement attributed to the duke of Lancaster by the Anonimalle Chronicle (p. 84), 'dusz ou tresz purrount soeffire a une foitz, come ad este use avaunt ces hures '. In 1348 the commons ask leave to choose four or six of their number to prosecute their petitions before a committee of the council (Rot. Parl. ii. 201). Cf. ibid. pp. 113 (no. 7), 237 (no. 8). 3 This statement depends upon a series of deductions. John of Scarborough was described by the commons in 1388 as ' their common clerk ' (Rot. Parl. iii. 245); on 5 March 1385 he had received a grant for life of the office of ' under-clerk of the parliament ', an office that Robert of Melton had previously held by letters patent of Edward III, receiving therefor a hundred shillings a year from the exchequer (Col. of Pat. Rolls, 1381-5, p. 535). What is practically certainly a confirmation of these letters patent was made by Richard II on 17 March 1378 (ibid. 1377-81, p. 154) and this refers to a grant of a hundred shillings a year to Robert of Melton by letters patent of Edward III of 3 April 1363 which we can find enrolled under this date (ibid. 1361-4, p. 323).

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between the parliaments of Edward I and those of Edward II. In the parliaments of the first Edward the professional element is all important: there seems no obvious reason why parliament should not function, save in exceptional circumstances, without the assistance of the baronage and certainly without the representatives of the commons. But the baronage under Edward II, reverting to their policy under Henry III, seized upon parliament, as they had endeavoured to seize upon the council, as a means of controlling the government. If they failed to control the government of the country, they at least succeeded in sharing with the ministerial element the control of the parliamentary tribunals and this control they retained. The effect gradually achieved was threefold : the dominant purpose of parliament became political instead of judicial; the principal ministerial offices were occupied by members of either house ; the judges and the masters in chancery had no place in parliament except as assistants. The reign of Edward III saw all the steps taken that led ultimately to the transformation of parliament. We must not, however, exaggerate the distance traversed by 1377. Indeed, to contemporaries there seemed little change : year by year the progress had been imperceptible. Under Richard II men still assumed parliament to be serving the same ends as it had served under Edward I or Henry III,1 and they made no greater mistake than did the parliamentarians of the seventeenth century who sought precedents in the thirteenth and fourteenth centuries. It is only on a near view, by an examination of the actual work of parliament and of the status and functions of the men who performed the work, that the extent of the changes becomes apparent. The modern parliament is the consequence of the feudal reaction of the fourteenth century. If this sounds paradoxical, let us emphasize that we are discussing the history of an institution, of the machinery of administration : we are not attempting to explain the triumph of modern democracy. We began by comparing the parliaments of England and France : we dare venture the opinion that, had the English parliament developed as did the parliament of Paris, nevertheless under other forms the commons would still have dominated the constitution in the nineteenth century. But in the fourteenth century the question was whether the English parliament should grow, as it was quite likely to grow, into a professional body of jurists and administrators, to become very much what the French parliament had become, or whether it should develop as a feudal court. 1 See the petition of the commons in 1377 (Rot. Parl. iii. 23), on which we comment in the Bull. Inst. Hist. Research, ix. 1 f.

XXII 398 NOTES Page 377, n.l above, XXI. 15ff. n.2 above, XXL 18. 378, n.3 Ancient Correspondence, XXXIX. 64: petitions of the Bardi and the Peruzzi were discussed in the council in 1337 and finally expedited as far as the council could expedite them, and then they were handed to Thomas Brayton for further action. One petition was on parchment, the other on paper. See also Ancient Petition, no. 16060: a guard on which has been written 'Iste peticiones Vasconie liberate fuerunt in cancellaria regis apud Warrewyk' vicesimo octavo die Novembris per Thomam de Brayton'; Ancient Petition, no 873: petition of Hugh Sampson, apparently of 1328 (cf. Cat. Close Rolls, 1327-1330, pp. 320,466; Chancery Misc. Inquisitions, 10911} is endorsed 'Coram rege et magno concilio. Le roi nest pas uncore avise de graunter arest. Brayton.' Perhaps Brayton was acting as clerk of parliament earlier than has been thought. n.8 XXI. 17. 379, n.l Above, XXI. 5 n.5 Above, XXI. 73. 380, n.l Above, XXI. 194. n.4 For ante read VI. 543, XXII. 194. 381, n.l Above, XVII. 195f. 382, n.3 Above, VI. 545f., XVII. 194. n.6 Above, XXI. 78ff. 383, 1.5 For king's read common. 1.13 For common read king's. n.4 For king's read common. John of Shoreditch was to remain with the king as a member of his council for his business at home and abroad at an annual fee of £50, as in the last year (Liberate Roll, no. 107, m.l: 14 December 1330). n.6 For the retention of John Walwayn as a member of the king's council see Liberate Roll, no. 114, m.7 (23 April 1337). 384, n.5 Liberate Roll, no. Ill, m.5: twenty marks were to be paid to Simon Trewythosa 'pro bono servicio quod nobis fecit prosequendo de mandate nostro quedam negocia nostra in parliamento nostro et coram iusticiariis nostris de banco' (3 March 1334). 386, n.l Above, XXI. 11. When petitions were addressed direct to the queen, they followed the normal procedure: e.g. Ancient Petition, no. 2001: endorsed 'Envoye as tryours de billes par ma dame la royne; Ancient Correspondence, XLII. no. 78: endorsed 'Coram rege'. n.4 Above, XXI. 7f. 387, n.l Above, XVII. 199ff. 388, n.6 Chancery, Parl. and Council Procs., 7/20: William Basset, justice of assize, is, like other justices, to come to parliament, and therefore assizes in York and Northumberland were to be postponed. 389, 1.8 According to Rishanger (Chronica, p. 454) Roger Brabazon, 'regis clericus et specialis consiliarius', spoke on behalf of the king at the parliament of Lincoln in 1301 and announced the request for a fifteenth. n.2 King's Bench Roll, no. 242, m.3, crown: the king 'in full parliament' in 1320 delivered with his own hands three indictments to the chief justice of the king's bench for expedition.

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393, 394, 395,

397,

n.S In the June parliament of 1325 the king, Hugh Despenser the younger (the chamberlain) and Robert Baldock (the chancellor) expounded the negotiations with France over Gascony, whilst in the following November parliament Walter Stapeldon, bishop of Exeter, declared the cause of summons, taking as his theme 'Egressus est Gog contra Magog ad impugnandum (B. L. Cotton MS. Faustina B. v. ff. 43fc, 44ft). Cf. Historia Roffensis, fo. 4-5, for an ironic comment. n.3 Above, VI. 535, 537, XVII. 202. 1.12 For king's read common. n.8 Above, XXI. 6ff. n.9 L.T.R.Memoranda Roll, no. 86, m. 52: in 1315 William Trussel 'est intendens comiti Lane', present! ad idem parliamentum' at Lincoln and therefore could not render his accounts; Liberate Roll, no. 107, m.3: payment of 100 marks to William Trussel for expenses in going on the king's service to several places (October 1330). n.l Above, XXI. If.

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XXIII PARLIAMENTARY DOCUMENTS FROM FORMULARIES IT was a not uncommon practice in the later middle ages to construct formularies by the simple process of copying a collection of original letters and drafts. These letters might be sorted according to subject or form, but sometimes they seem to have been transcribed as they came to hand, their order being determined by the files upon which they were strung or the pouches in which they were contained. Names were usually replaced by initials or, like indications of date, were omitted altogether. But the copyist not infrequently retained more of his original than a formulary really demanded ; and, in any case, it was no part of his purpose to remove or disguise references to historical events. It follows that, with the aid of contemporary records, it is possible to provide dates, to expand initials, sometimes even to supply names altogether omitted. Some valuable collections have been edited on these principles in whole or in part, and there are collections, possibly still more valuable, which await an editor. It is never possible to foretell what may be found in a formulary : they have many surprises. In one, which we have put under contribution, there is a nearly contemporary copy of the celebrated letter written in October 1405 by Christine de Pisan to Isabelle of Bavaria, seeking to compose the quarrel of the dukes of Orleans and Burgundy,1 and also a copy of St. Louis' Enseignements or advice to his son Philip III. 2 In another English formulary, which All Souls College MS. no. 182, ff. 2306-2326. The letter was printed by M. J. R. Thomassy, from two manuscripts at Paris, in his Essai sur les Meritspolitiques de Christine de Pisan (1838), pp. 133— 4°- 2 This is a Latin version. It comes from a different section of the manuscript (ff. 158^—159^), seemingly later in date than the section containing the letter of Christine de Pisan. 1

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comes from the first half of the thirteenth century, there is a charter of Alexander II of Scotland, apparently otherwise unknown, referring to a council on Good Friday 1218, at which it was agreed to levy a house-tax for seven years in aid of the fabric of Scone abbey.1 In all three instances the unlikeness of the particular item to the documents which surround it is striking. That unsuspected documents may lurk in unexpected places is a poor enough reason for hunting through formularies, and obviously some of them are more likely to contain parliamentary documents than others. However, in looking through some of the more promising formularies, we found, besides a few documents of no special interest, six which, for various reasons, seem worthy of reproduction.2 These six documents come from five formularies of which we must give a brief account. Royal MS. 12 D. xi is described in detail in Warner and Gilson's ' Catalogue of the Royal and King's Manuscripts ' (ii. 42—4). The section with which we are concerned (ff. 12—2i£) appears to be connected with the office of the privy seal. As our first document indicates, this formulary, like many of its class, is the work of a careless and ignorant scribe ; quite possibly it may be a copy of unofficial origin and not intended for official use. Additional MS. 24062 is largely the work and was once the property of Thomas Hoccleve, poet and clerk of the privy seal between 1387 and 1424 : it includes, however, many documents going back well into the fourteenth century. This formulary has been briefly described by Dr. Tout in his ' Chapters in Mediaeval Administrative History ' (v. 110) ; a fuller description appears in M. Perroy's introduction to the ' Diplomatic Correspondence of Richard II ' (pp. xiv—xvii). MS. Dd. iii. 53 in the University Library, Cambridge, is a composite volume. That portion with which we are concerned comes certainly from the office of the privy seal and was written under Henry VI. A letter referring to the death of Abbot William Dal ton of St. Mary's York and the confirmation by Archbishop Henry Bowett of the succeeding abbot, William Wells, must come from the year I423.3 The collection seems, however, to have been made originally under Richard II and in a number of letters of Edward III Richard's name has been substituted with ludicrous effect, as when he speaks of his eldest 1

Additional MS. 8167, ff. 93^-94. The place names are corrupt but there seems no doubt of the identification. 2 We are obliged to Mr. Charles Johnson for some suggestions, of which we have been gkd to take advantage, regarding text and commentary. 3 Fo. 29 : cf. F.C.H. Yorkshire, iii. in.

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son, the prince of Aquitaine and of Wales, or of the forty-third year of his reign.1 Why this collection should have been recopied a generation later, with very few additions from the intervening period, does not appear. A detailed list of the contents will be found in the library catalogue (i. 106—46) and a more critical account in the introduction to the ' Diplomatic Correspondence of Richard I I ' (pp. xix-xxi) where, however, M. Perroy dates the manuscript circa 1390. AH Souls College MS. 182 was described in some detail in C. Trice Martin's introduction (i. pp. xliv—liii) to the ' Registrum Epistolarum lohannis Peckham ' in the Rolls Series : his description does not, however, suggest any close study of that part of the manuscript which contains a formulary, written early in the fifteenth century, reproducing a large number of letters collected (as it would appear) in the first instance by Roger Wai den, secretary to Richard II, subsequently treasurer and archbishop of Canterbury. This collection seems to have fallen into the hands of Archbishop Arundel and was thereafter considerably expanded. Something more of the manuscript, and especially of the way in which it came to All Souls, is said in a recent article in the ' Bulletin of the John Rylands Library' (xvii. 282-6). Laing MS. 351 in Edinburgh University Library is another formulary from the office of the privy seal and is the work mainly of two clerks in the reign of Richard II. But there are later additions from miscellaneous sources and it is one of the later additions that we print. A full and critical description of the manuscript by M. Perroy will be found in the volume to which we have already referred. These introductory paragraphs will suffice to explain the nature of the sources from which our documents are drawn, and it will have been noticed that in each case there was an intimate connexion with the privy seal or the signet. But only the third and the fifth document come from the records of either office. The first is hardly official in origin ; the second, fourth and sixth, if we had sought for them, we should have expected to find among the records of the chancery. The fourth was indeed probably added to the collection from which it is taken when the latter was in the possession of the chancellor, Archbishop Arundel. But we have no simple explanation to offer for the presence of copies of the second and sixth, both important parliamentary documents—not now apparently to be found in official custody—in the office of the privy seal. ^£.45,85.

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To get this letter in its historical setting, it has to be remembered that early *n X337 Edward III sent a diplomatic mission to Flanders and Germany. This mission consisted of the bishop of Lincoln, the earls of Salisbury and Huntingdon, Reginald Cobham, William Trussel and Nicholas de la Beche,1 and among the imperial princes with whom an alliance was concluded was the margrave of Jiilich.2 In that same year an attempt was reported to have been made to poison Philip VI of France and his court. The story is known from one of the continuations of the chronicle of Guillaume de Nangis, from which it was copied into later compilations. All we are told there is that some pretended religious made the attempt, that they were taken and imprisoned, and that their fate was unknown.3 Some additional facts are given in the chronicle of Henry of Herford, who mentions that the religious were hospitallers and that they implicated the count of Gelderland.4 A contemporary document discloses that the count cleared himself and the margrave of Julich at a meeting at Louvain at Candlemas 1338 before the duke of Brabant and other Flemish nobles.5 The present letter shows that corresponding steps were taken in England to relieve them of suspicion. It is clearly to the count of Gelderland, Edward's brother-in-law,8 that the letter is addressed, obviously by someone of distinction present at the Candlemas parliament of 1338 and presumably someone who had been on the recent diplomatic mission. The circle of possible correspondents is therefore a narrow one, and, while we cannot make any certain identification, it seems highly probable that the writer was the earl of Huntingdon. Both the bishop of Lincoln and the earl of Salisbury appear to have been absent from this parliament,7 and no member of the mission but one of these three would be at all likely to address a foreign prince in terms of intimacy and equality. 1 Foedera, II. ii. 966-7. It is important, for our purpose, to know that all six actually visited the continent: see the document of May 1337 in the archives at Lille printed by Kervyn de Lettenhove in his edition of Froissart, xviii. 30-33. 2 Foedera, II. ii. 985. 8 Cont. Chron. Guillaume de Nangis (ed. Ge"raud), ii. 159 ; Chron. Richard Lescot (ed. Lemoine), p. 46 ; Grande; Chroniques de France (ed. P. Paris), v. 370. 4 H. de Hervordia, Liber de rebus memorabilioribus (ed. Potthast), p. 236, where the incident is noted s.a. 1319. 6 Printed by I. A. NijhofF, Gedenkwaardigheden uit de Geschiedenis van Gelderland, i. 371-4, and, incompletely, by M. J. Wolters, Codex Diplomatics Lossensis, pp. 277-80. The account based on this document by H. S. Lucas (TAe Low Countries and the Hundred Years' War, pp. 250-1) is erroneous in several particulars. 6 This had already been suggested in the Catalogue of Roy a/ MS S. ii. 43. 7 Reports touching the Dignity of a Peer, Parl. Papers H.L. 120 (1829), iv. 489-91.

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The interest of the letter for our present purpose lies in the information it gives us that the Cardinals Bertrand de Montfavet and Pedro Gomez de Barroso, who had recently been sent by Pope Benedict XII to the courts of France and England,1 were present in parliament and that the charge of attempted poisoning was repudiated before them. Their presence, together with the references to the ' nominalis rex Francie ' and the attempt at poisoning him, fixes the date of the parliament : for the cardinals were in England between 2 December 1337 2 and 11 July 1338 3 and the only parliament between these dates was that at Candlemas.4 This letter gives also the picturesque detail of a certain knight W. arising in parliament and challenging to single combat anyone who maintained the accusation against the two princes. This knight can be identified only with the same degree of certainty as in the case of the writer of the letter. But from the terms in which he is mentioned he would seem to have been employed upon the diplomatic mission. If we are to select one of the three lesser members and if we can rely on the initial, obviously our choice must rest upon William Trussel. He had, we may recall, figured as the principal actor in a carefully staged scene eleven years previously when he had acted ' as proctor of the whole parliament' ; he later appeared as one of the king's messengers in the July parliament of 1340, and acted as spokesman for the commons in the Easter parliament of I343- 6 If our present identification is correct, and it seems more than probable, the incident fits neatly into a chain connecting Trussel with parliament, which he attended neither as magnate nor as representative of shire or borough, but as a servant of the king. British Museum : Royal MS. 12 D. xi, ff. 18^-19. Princeps spectabilis et amice carissime. Visis et intellectis nobilitatis vestre litteris nobis missis, machinacionem de 6 intoxicacione 7 nominalis regis Francie vobis et viro magnifico domino marchioni luliacensi per ipsum regem inpositam insinuantibus, de turbacione vestra fuimus intime conturbati ; set dum attendimus fidelitatis constanciam et strenuitatis eminenciam, quibus progenitorum vestrorum digne 8 recolenda prioritas semper magnifice coruscauit, quas in persona vestra conspicimus laudabiliter per effectus operum propagatas, fore iudicamus erroneum de sinceritate vestra talia credere vel sentire. Immo Foedera, II. ii. 1002 sqq. Royal MS. 12 D. xi, fo. 18 : cf. Foedera, II. ii. 1006. 3 Murimuth, Continuatio Chnnicarum, p. 83 : die Sabbati in festo Translationis sancti Benedict! abbatis. 4 5 6 BULLETIN, viii. 79. Eng. Hist. Rev., xlvii. 395-6. MS. omits. 7 8 MS. intoxicacionem. MS. digna. 1

2

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scimus quod vestrum generosum animum talis cogitacio non fedauit, set in gloria vestri nominis maculam nititur inponere, qui basim firmam vestre constancie non poterat commouere, hostis humani generis, secutus inuidiam qui eos quorum mentes pias nequit 1 corrumpere saltim satagit diffamare. Molem 2 igitur turbacionis abicite consolacionis spiritum induentes, quia qui vos diffamare credidit, vobis illesis, diffamatus 8 remanet ictu proprio repercussus ; nam nostrates omnes tenent pro certo super dictis impositis vos immunes, nequiciam calidam dicti regis abusiui plurimum execrantes. Super hiis autem innocencia vestra per* dilectum vestrum et nostrum militem dominum W. in pleno parliamento regio coram domino nostro rege Anglic, presentibus cardinalibus, prelatis et proceribus in multitudine copiosa, laudabiliter excusata, ad quam defendendam contra personam quamcumque per corpus optulit 5 magnanimiter se paratum. Valeatis feliciter in Domino, rescribentes nobis in oportunitatibus fiducialiter vota vestra, ad quorum complecionem plenariam inuenietis 6 ex animo nos voluntaries et paratos. II

Although this petition occurs among a number of letters coming from the sixties of the fourteenth century, and although documents transcribed in formularies usually fall into chronological groups, it cannot be ascribed to so early a date. The question of heresy was before parliament in 1382, 1388 and 1401. There is no evidence that before 1382 the development of the teaching of Wyclif and his friends had led the church authorities to seek the aid of the state for concerted action against heresy. Even in that year action was confined to the province of Canterbury and the commission based upon the statute framed in the May parliament specifically mentions the petition of the archbishop of Canterbury.7 A commission for the province of York was not issued until more than two years later, and it is evident, therefore, that there was no concerted action between the two provinces.8 Although there was no fresh legislation in 1388, there was a marked development in administrative action,9 and, although we do not hear of any clerical petition to the ' merciless ' parliament, there is no doubt that the question of action against heretics was 1

a 3 MS. nequid. MS. melem. MS. diffamatis. 5 * MS. et. MS. optilit. • MS. placidam iuuentutis. 7 The text is printed in the Register of Thomas ae Erantyngkam(eA. Hingeston-Randolph), pp. 4667, and Wilkins, Concilia, iii. 156. Only a brief abstract is given in Cal. Pat. Rolls, 1381-85, p. 150. For the legislation, see Rot. Parl.'m. 124-5 (no- r 7)> Statutes of the Realm, ii. 25-6. 8 Cal. Pat. Rolls, 1381-85, p. 487. 9 Ibid., 1385-89, pp. 427, 430, 448, 468, 536, 550.

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raised,1 and it is difficult to believe that the originators were not the bishops. Since, however, Alexander Neville, archbishop of York, had fled to the continent, this again was evidently not an occasion for a joint petition by York and Canterbury. The statute De Haeretico Comburendo of 1401 was based upon a petition from the clergy of the province of Canterbury : 2 a comparison of that and the present petition will show that they are unrelated. The present petition therefore must be before 1401, for obviously there would be no point in asking for the death penalty for heretics after this had been conceded. The form of address, which points to the last decades of the fourteenth century, confirms the deduction that we should date the petition some time between 1382 and 1401, although we must exclude both those years and 1388. Now in September 1395 Boniface IX wrote in strong terms to the two archbishops and also to the king urging vigorous action against the Lollards ' sic quod nee favilla cineribus operta remaneat'—an ominous metaphor.3 There is therefore a probability that the petition with its naked request for the infliction of the death penalty was presented in the parliament next following, that of Hilary 1397. Such a suggestion is not made less probable seeing that this was the last parliament of Richard II's in which Archbishop Arundel was active and it was he who was responsible for the statute of 1401. A point worthy of remark is the appeal to the ' profession of chivalry ' which binds the king and the secular lords to the defence of the faith. We have already noted that this petition comes from the two provinces ; another point to be observed is that it is couched in French. An earlier petition with both these features was presented in 1377 : on that occasion a Latin version—possibly the original-^-was also prepared, although the copy selected for entering on the parliament roll was in French.4 It is quite likely that the present petition was also originally prepared in Latin and that we have what is in effect a French translation, but it is none the less authentic for that. We have stressed these points lest there might be some suspicion of the genuineness of the document. We need only add that it is found among a mass of documents of the highest authenticity, and no conceivable object could be served by fabricating it for the purpose of a formulary in the office of the privy seal. 1 Knighton, Ckronicon (Rolls Series), ii. 263 sjj. This account is demonstrably inaccurate in detail, but it lias substance behind it. 3 Rot. Par/, iii. 467 ; Statutes of the Realm, ii. 126. 8 Cal. Papal Letters,'w. 515-6; Registrant lohannis Trefnant Episcopi Herefordensis (Canterbury and York Society), pp. 405-7. We should perhaps note that there is no evidence that action for or against Lollardry was taken in the 1395 parliament: see Mr. H. S. Cronin's introduction, pp. xxvi-xlii, to Roger Dymmok's Liber contra XII Errores et Hereses Lollardorum (Wyclif Society). * Rot. Par/., iii. 15. A copy of this is to be found in Exchequer Parliament and Council Proceedings, E. 175/3/2 : a copy of the Latin version is E. 175/3/3.

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British Museum : Additional MS. 24062, fo. 189^. A tresexcellent et nostre tresredoute seignur le roi et as seignurs de vostre roiaume en cest present parlement assemblez, signifient voz humbles et deuoutz oratours les erceuesques de Canterbirs et Deuerwyk et leur suffragans greuousement compleignantz que vne nouelle secte nouellement sourdist en le dit roiaume et de iour en autre grandement encrest, la quele sect pluseurs semences de heresies et errours continuelment desparple entre le poeple, pour destruire la vnitee de la foy catholike en tant que combien que pluseurs de eux soient trouez coupables de heresies et errours et cheuz ariere en yceux, nientmains ils ne poent par censurs de sainte esglise estre restreintz de leur errours, si le bras seculer ne constreigne leur malice, come ils guerpent et refeusent les choses de seinte eglise en tres mauueise ensample de touz cristiens et subuersion ouerte de la foy catholike. Par quoy prient les dites erceuesques et leur suffragans et requerent vostre deuocion que vous portez enuers seinte esglise que, eantz consideracion a ce que en autres roiaumes subgitz a la religion cristiene quant aucuns sont condempnez par leglise de crime de heresie ils sont tantost liuerez a seculer iuggement pour estre mys a mort et leur biens temporales confiskez, please a nostre tresredoute seignour le roy et les autres seignurs susditz mettre eide du bras seculer pour destruire la malice de tieux enemys de la seinte croice nostre seignur lesu Crist et a la defense de la foy cristiene, come ceux qui estes a ce tenuz par profession de chiualrie, sique ils soient chastiez par peine temporale qi ne veullent par espirituele discipline estre corrigez et amendez, puruoiantz de tiel remede en ce cas en cest present parlement par voie destatut que lalme dicelle secte soit disolute et rumpue, sique la foy catholike ne perisse ne defaille desore en si noble roiaume et la tranquillite dicel par tiel insurrecioun de heretiks ne soit en apres destourbee et que par consequent mesure le roiaume ne soit en soy deuise et departiz et outrement desolat et destruit. Ill

This privy seal letter is a warrant to the chancellor directing him to issue letters under the great seal permitting John Buckingham, bishop of Lincoln 1363-1398, to absent himself from parliaments and councils on account of his age and infirmities. Whether any formal instrument was actually issued we doubt, for there seems to be no trace of one upon either the patent or the close rolls. On 15 December 1397 letters of protection for one year had been issued in favour of the bishop who was then stated to be broken with age,1 and 1

Cal. Pat. Rolls, 1396-99, p. 269.

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it was probably after this that he asked to be excused for the remainder of his life from attendance at parliament or the council. He died on 10 March 1398, and, if prepared, the formal instrument may never have been sealed or, if sealed, the fee for enrolment never paid. Cambridge Univ. Library: MS. Dd, iii. 53, fo. 66. Licencia de non veniendo ad parliamentum (in margine]. Richard etc. au chanceller saluz. Considerantz coment lonurable pier en Dieu lohan euesque de Nichole est deuenuz aucunement a viellesse et-est detenuz de si fort maladie qil ne poet bonement trauailler sicome il soleit, lui auons de nostre grace especiale grantez qil durant sa vie ne soit tenuz deuenir en sa persone a qiconques noz parlementz ou counseiles a tenir en nostre reaume, einz soit de tout excusez durant sa vie auauntdit, issint toutes voies qe a chescun de noz ditz parlementz il eit sez procureurs couenables ouesque poair suffissaunt par ses lettres dassentier a ce qi serra ordenez as parlementz auauntditz et qil eit auxi sez procureurs a noz ditz conselx quant le cas le requirt. Et pur ce vous mandons etc.1 Done etc.

IV This document is of very considerable importance for the history of parliamentary procedure and it illustrates the manner in which the parliament rolls tend to omit all reference to the less formal proceedings, which nevertheless at the time must have been recorded. No proceedings are recorded in the roll of the parliament of Michaelmas I399 2 between 30 October and 3 November,8 but the document we now print shows that on 31 October there was a meeting between the lords and the commons at which a series of' articles' was discussed (communes) between them with a view to their being placed by the lords before the king. The subjects of some of these articles we can trace upon the parliament roll but others we cannot. It will be convenient if we go through them seriatim. The first article helps to explain paragraph 79 of the printed ' Rotuli Parliamentorum,' which refers to a protest made by the commons at the commencement of the parliament regarding their participation in judgements rendered in parliament, a protest that nowhere appears in the roll. The paragraph in question is dated 3 November and it is, of course, clear from this 1 Supply, as in other privy seal letters : ' qe sur ce facez faire noz lettres desouz nostre graund seal en due forme.' a s Printed Rot. Par/., iii. 415-46. Ibid., p. 427.

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article that the point must have been raised at an earlier stage of the proceedings, presumably before the meeting on 31 October with the lords. The second article refers to the title of prince conferred upon Henry of Monmouth, a matter mentioned in paragraphs 71 and 81 as well as in one of the petitions of the commons (paragraph 103) entered on the roll : in each case the consent of the commons is expressed as this article desires. There appears, however, to be nothing on the roll corresponding to the third article, asking that until the peace of the country is better established the prince should not pass beyond the realm. The fourth article is covered by paragraph 97 in the petitions of the commons which, it now appears, was directed especially against the judges. The fifth article regarding the Scottish March also appears in the commons' petitions (paragraph 105), but not the sixth article regarding the defence of Ireland. The question of the duke of Brittany's claim to the earldom of Richmond had been mentioned on 27 October, when the commons had been put off with an evasive reply (paragraph 77) : there is, however, no further reference to the subject on the roll. It is evident from the seventh article that an attempt was made to reopen the question, but, although lords and commons seem to have been ignorant of the fact, the earldom had already been granted to the earl of Westmoreland.1 Nothing appears upon the roll corresponding to the eighth and ninth articles regarding sheriffs and their subordinates, the purpose of which was to restrict their terms of office and to secure the observance of previous legislation on the subject.2 The tenth article resembles closely the reply to one of the petitions of the commons (paragraph 107) and this strengthens the impression we should otherwise have obtained that the present document was intended to be before the king when the commons' petitions were being considered. It is, however, difficult to determine the precise relation of these articles to the petitions of the commons. It seems evident from the parliament roll that, apart from the petitions presented in regular form (at what stage in the proceedings is not clear), the commons made several other representations to the king in the course of the session. The purpose therefore of these joint representations 1 Cal. Pat. Rolls, 1399-1401, pp. 24, 318, from which it appears that the grant was made on, or at any rate dated from, 20 October. It is improbable that the king's decision was in any way influenced by the death of the duke of Brittany, which occurred on i November at Nantes and news of which would be unlikely to reach London until a week or so later. 2 Statutes of the Realm, i. 389 ; cf. iiiJ., 5. 283, 346 ; ii. 4.

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with the lords is obscure, as indeed is the reason for omitting from the roll some of the matters included in the articles. A discussion of the problems involved would be out of place here. There is, however, no question of the interest of the present document in throwing light upon the activities of the commons at a period when we have little knowledge apart from the entries on the parliament rolls. All Souls College MS. 182, fo. 197*. Les pointz des articles comunes parentre les seignurs et comunes du parlement en la veile de toutz seintz pour estre moustrez a nostre tresredoubte seignur le roy par les seignurs auaunditz. [i] Primerement touchant ascunes iuggementz a rendre en ceste present parlement ou en ascun parlement en temps auenir que lassent des comunes du royaume du parlement ne soit entre en les rolles du parlement de record sanz estre appellez a ceo et qils ouertement assentont en plein parlement. [2] Item touchant leisne filz le roy qest fait Prince en cest parlement que ce soit fait entree et enacte de recorde que ce fuist fait par assent du comune du parlement pour la greindre seurte etc". [3] Item le dit Prince ne passe hors du roialme en si tendre age tan que le pees soit mieulx establez deinz le roialme etc". [4] Item touchant les justices qils ne soient mie receuz en temps auenir a dire de lour excuser qils noserent faire ne dire la leye pour doubte de mort etc*. [5] Item touchant la Marche descoce que soit bien ordeine pour la sauf garde dicelle. [6] Item touchant la terre dirland que soit bien ordeine pour la sauf garde dicelle. [7] Item touchant le duk de Bretaigne pour le conte de Rychemond pour la bien de pees etc'. [8] Item touchant les viscontz parmy le roialme dengleterre qils soient creables, honastes et suffisantes personnes et nulles extorsioners ne oppressours du peple et qils ne demurgent en lour office oultre vn an centre la forme de le statut etc'. [9] Item que lour subviscontz, clerks de viscontz, retourners des briefs ne les resceiuours des viscontz, ne demurgent en lour office oultre vn an et qils ne soy entremellent x ditz offices par trois ans ensuantz, pour eschuir lextorcion du people sur grande peine etc'. 1

This clause appears to be corrupt: read ' qils ne soyent entremellent des ditz offices.'

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[10] Item touchant les viscontz dessex' et hertford' et plusours autres du roialme touchant lour outrageouses charges et perdes par lour aunciens fermes queux sont anientez par franchises et hundres et wapentakes come parcelle des fermes des ditz contes grantez par Richard darrein Roy etc'. V

This document, a privy seal writ summoning a great council for 29 January 1402, we print not from Hoccleve's formulary, in which we first found it, but from an official copy among the exchequer records. We do so, not only for the interest of the subject matter, but because this provides a witness to the fidelity of these formularies. It will be seen that, apart from the substitution of initials for Westminster and London and the generalisation of dates (tie/ tour for lundy prochein auant la purification de nostre dame prochein tenant and for le dymenge prochein auant le dit lundy), the readings in the formulary, which we have given in the notes, show few differences. Even these readings may have been in the draft before Hoccleve : his politer terms of invitation are replaced by the imperative, but where in one place he reads estre veullez for soiez, there has been an erasure in one of the record copies (which looks like an uncompleted writ) and over this erasure, which takes up a much wider space, the single word soiez is written. It may be of interest to explain how we came to trace the record copies, since this too has some bearing upon the reliance to be placed upon documents which must be dated from circumstantial evidence. Hoccleve's copy is associated with a number of council documents coming from the reigns of Henry IV or Henry V. W. certainly seemed to stand for Westminster and L. for London. We had therefore to find, in the first place, a year in which a parliament was summoned to Westminster and then abandoned. On consulting a list of parliaments, that of January 1402 seemed the only one possible,1 and it was not difficult to ascertain that there was a special meeting of the council in London in that month.2 We should consequently have been led to conclude that the evidence pointed to this occasion, but a reference by Professor J. F. Baldwin ? took us to the file in which the record copies of the writ are to be found. The constitutional importance of this writ needs little stressing. Here we have a great council consisting of ' seignurs et grandz ' substituted for a 1 2 3

Interim Report of the Committee on House of Commons Personnel and Politics, pp. 78-9. Nicolas, Proceedings of Privy Council, i. 179. King's Council, p. 149, n. 2.

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parliament and regarded as competent to deal with the same business. The reason given for the altered arrangement is that it will cause the least trouble to ' our people.' If we compare the lists of those summoned to the parliament x with those summoned to the great council, we shall notice that there have been spared attendance—besides the commons—seven bishops, all the abbots and priors, and eleven lords. It is perhaps desirable to point out that the William Heron chivaler, who appears among those summoned to parliament, was summoned to the great council under the title o f ' le sire de Say.' Heron had married Elizabeth, daughter and heiress of William of Say, and he was known by courtesy as Lord Say,2 although never given that title in a summons to parliament.3 P.R.O. : Council and Privy Seal, £.28/1 r. Depar le roy Le teneur des lettres as seigneurs et de semblable effect as prelatz. Trescher * et foial. Combien que nadgaires pur certaines necessaires et chargeantes busoignes nous, lestat de nostre roiaume et de seinte eglise touchants, eussiens ordenez vn nostre parlement a estre tenuz a Westmouster lundy prochein auant la purification de nostre dame prochein venant,5 nientmains pur certaines causes especifiees en nostre brief quel vous vient desouz nostre graund seal ne volons pas que le dit parlement se tiegne a ceste foiz, mais, pur tost remedier as susdites busoignes au meindre vexacion de nostre poeple, auons ordenez vn nostre graund conseil a tenir et commencer as iour et lieu susditz. Si vous prions trescherement enchargeantz que cessante toute excusacion soiez 6 a nostre citee de Loundres le dymenge prochein auant le dit lundy 7 pur y lors conseiller ouec nous et les autres seignurs et grandz de nostre roiaume qui y 8 serront lors assemblez a cause des ditz busoignes, les queles serront moustrez et declarez a vostre et a leur venue. Et ce en nulle manere ne lessez 9 sicome nous nous fions de vous. Don souz nostre priue seal a Westmouster le xiiij iour de lanuer.10 Par le roy de son comandement. 1

Reports touching the Dignity of a Peer, iv. 776-7. G.E.C., Complete Peerage (2nd ed.), vii. 62-3 ; Nicolas, Proceedings of Privy Council, i. 102, 126, 130 et passim. 8 Reports touching the Dignity of a Peer, iv. 751, 757 etc.; the kst summons is on p. 791. 4 Hoccleve's version (Add. MS. 24062, fo. 136) begins here. In the margin are the words ' Pur estre ouec le roy a del lieu pur luy counsailler etc.' 5 6 Add. MS. : W. tiel iour. Add. MS.: estre veullez. 7 8 Add. MS.: L. tiel iour. Add. MS.: qy. 9 Add. MS.: veullez lesser. 10 Add. MS.: Done etc. This is the end of Hoccleve's version. 2

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Endorsed. Les nouns des persones qui vindrent au conseal au Westmouster le lundy prochein auant la purificacion de nostre dame Ian etc. iij, le quel lundy le roy parauant par ses briefs auoit enuoiez a mesmes les persones de venir a cause dun son parlement a estre venuz icel lundy, le quel parlement feust deportees alors par certaines causes. lerceuesque de Canterbirs lerceuesque deuerwik' leuesque de Londres leuesque de Wyncestre leuesque de Nicole leuesque Dely leuesque de Bath et Welles leuesque de Hereford leuesque de Saresbir' leuesque de Wircestre feuesque de Rouchestre leuesque de Bangore leuesque de saint Assaf leuesque de saint Dauid

le prince de Gales le conte de Somers' le conte de Northumbr' le conte darundel* le conte de SufF le conte de Wircestre le conte de Westmerland' le sire Camoys le sire de Bourgchier le sire de Clynton* le sire de Roos le sire de Say le sire de Ferrers de

Groby le sire de Morley Richard Lescrop* le sire de Burnell' le sire de Berkley

Rauf de Cromewell le sire de Haryngton le sire darcy le sire filz Wauter le sire de Wilughby le sire de Cobham Thomas Nevill de Halumshir le sire de Bergeueny le sire de Louell le sire de Gray de Codnore le sire de Gray de Ruthin le sire de Bardolf le sire de Maule le sire la Zouche

VI

Collective diplomatic letters are not altogether uncommon in the middle ages, the most noteworthy in English history being two addressed to the pope, the barons' letter of 1301 and the letter from the clergy and people of 1307. It is unlikely that either reached its destination, although the substance would become known. The present letter, sent on behalf of the nation assembled in the parliament of Hilary 1404, is in the same tradition. Those chosen to affix their seals were carefully selected. The archbishops stand in a class apart, but, excluding them, every rank has its representative—a bishop, an abbot, the prince, a royal duke, an earl, a baron and, lastly, the speaker, prolocutor communitatis parliament!. The bishop was Henry Beaufort, the king's half-brother and chancellor, while the baron selected was the treasurer, William de Roos. The abbot of Westminster, the second representative of

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the prelates, had been under suspicion of complicity in a plot against the king in 1400, while the earl of Northumberland had been cleared of a similar charge in this very parliament. Although rather over-weighted with king's sons and officials, the choice of representatives was evidently designed to show that the nation was united in support of Henry IV. The difficulties with the French had been mentioned in the chancellor's opening speech at the parliament ; 1 on 9 February there had been a renewal in parliament of the recognition of Henry's title and that of his sons.2 This letter, dated five days later and addressed to the prelates and magnates, lords spiritual and temporal, and the whole community of the realm of France, was to serve as a manifesto to the French and the world at large ; but what was done with it—since no copy seems to have come to light elsewhere—remains a mystery. Possibly Dr. Nicholas Ryssheton was expected to make use of it in the course of his negotiations.8 The French certainly were not impressed, and in October 1406 we find Charles VI firing off a rather similar manifesto against Henry IV.* But in the meantime two of the principal signatories, Archbishop Scrope and Northumberland, had shown of how little value was their support of Henry. Edinburgh University Library : Laing MS. 351, fo. 142. Vniuersis et singulis prelatis et magnatibus ac dominis spiritualibus et temporalibus ac toti communitati regni Francie prelati et proceres ac magnates spirituales et temporales ac tota communitas regni Anglic salutem et caritatis zelum in eo qui est omnium vera salus et pacis origo, in pads federe et firmitate dileccionis hactenus constituti. Treugas abolim inter recolende memorie dominum Ricardum quondam regem regnorum predictorum vltimo defunctum et vos captas et initas curauit serenissimus in Christo princeps dominus noster dominus Henricus dei gracia rex Anglic et Francie, vt in conspectu vestro clare relucet, alias renouare et cuncta eisdem aduersancia, frequenti concursu ambassiatorum suorum, expellere nitebatur et adhuc nititur in presenti, propter quod ad reformacionem hincinde attemptatorum dies tertius mensis marcii proximo futurus in loco solito communiter appunctatus existit. Miracionis attamen modus nobis nunc accidit quod scripturas venerabilis viri magistri Nicholai Ryssheton' vtriusque iuris doctoris, ambassiatoris pro parte nostra in Calesio adiu remanentis et pro obseruacione prefati diei tercii scribentis, jninime respondetis, necnon quod certi domini ex vestris, vt puta dux Aurialensis 1 3 4

2 Rat. Par/., Hi. 522. Ibtd.> p. 525. For these, see Foedera, viii. 336, 34.2-4; Royal Letters, Henry IF (Rolls Series), pp. 197-205. Ciranifue de la Traisoa de Richard II, pp. 299-302.

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Parliamentary Documents from Formularies

et comes sancti Pauli, libellos famosos et scripturas minus digestas (an vestri processerint communi vote nescimus) per seruientes armorum domino nostro regi supradicto, omnis curialitatis spreta forma, nunc tarde transmiserint, ac vltra hec obsidionem ciuitatis Burdegalie tam per terram quam per mare et x classes vestras et alia nauigia armata more guerrino, vt informamur, preparatis sicque pocius gladium quam pacis nuncium nobis prospicimus imminere. Set reuera effusionem christiani sanguinis, nisi compulsi, per multum abhorrentes, testamentique ipsius saluatoris quo dicitur ' pacem meam do vobis, pacem relinquo vobis ' participes effici peroptantes, memores eciam verbi apostoli iubentis ' non vosmet ipsos iudicantes, ideo enim iudiciorum vigor in medio positus est ne quis sibi vlcionem sumere presumat,' treugas predictas obseruare pro parte nostra, attemptataque contra easdem congrue reparare, nisi per vos ad guerram necessitemur, vt liberet nos deus a necessitate et conseruet in pace, in mente nostra curamus, pax enim voluntatis sed bellum necessitatis esse debet. Quocirca incarnacionem filii, qua deus homo factus est et vnus ex nobis, sanguinemque ipsius pro redempcione nostra in cruce letaliter effusum, quo genus humanum a morte reuixit, gerentes in corde, tam admirabile comercium circa sanguinis effusionem, nisi minati 2 exterminari, non proponimus quouismodo, et idcirco, cum ad eterni iudicis tribunal communiter accesserimus, celum et terram et cuncta creata inuocamus contra vos in testimonium vt, si que guerrarum aut bellorum genera inter nos et vos, quod absit, eueniant in futurum, ipsa originaliter ex vobis precedent et nos sub defensionis clipeo, prout altissimo placuerit, resistenciam faciemus. In premissis quoque tam nudo stilo mentes vestras ad singula adaperire nobis velitis, et si prefatum diem tercium obseruare seu alium vlteriorem prorogare curetis, capitaneum Calesii seu ipsius locumtenentem reddatis absque mora certiores. In caritate perfecta confirmet vos Trinitas sancta et dominus sit in cordibus vestris. Datum apud Westmonasterium, in parliamento ibidem tento et celebrate, sub sigillis venerabilium in Christo patrum dominorum Cantuariensis et Eboracensis archiepiscoporum ac Lincolniensis episcopi et abbatis Westmonasterii, necnon serenissimorum principum Henrici primogeniti regis Anglic principis Wallie ac Edwardi ducis Eboracensis, Henrici comitis Northumber' ac Willelmi domini de Roos, necnon domini Arnaldi Sauage prolocutoris communitatis parliamenti, vice et nomine omnium sigillancium, xiiij die mensis Februarii anno domini millesimo ccccmo tercio.

1

MS. omits.

z

This word begins with five minims only in MS,

XXIV THE COMMONS AND MEDIEVAL POLITICS

SOME apology may seem necessary for a brief paper that covers nearly three centuries, but, unless we take long views, we are unlikely to get into focus the problem before us, namely, the extent to which the commons participated in medieval politics and the manner in which they did so. Bishop Stubbs, you will remember, found this a matter of particular difficulty. The part played by the commons in relation to taxation and legislation seemed plain enough. But political power, the ' right of general deliberation on all national matters, is too vague in its extent', he thought, ' to be capable of being chronologically denned ; nor was it really vindicated by the parliament until a much later period than ' the reign of Edward I, with which he was then concerned.1 Elsewhere, Stubbs seems to have committed himself to the view that the commons took part in politics in the fifteenth century, although the distinction he formerly drew between politics and legislation he no longer maintained.2 Quite clearly we cannot consistently maintain a distinction between politics and legislation or politics and finance. 'The right of deliberation on all national matters', in Stubbs's phrase, may express itself in the acceptance or refusal of legislative or of financial proposals. But if there are certain national matters from the discussion of which one or other of the ' estates ' is in practice excluded, then it is reasonable to say that, to that extent, they take no part in politics. To suggest an obvious example : the assent of the lower clergy was necessary to the taxation to which they were subjected; they took no part in general legislation; and they certainly did not exercise the right of deliberation on all national matters. Their participation in politics was therefore of the slightest. Now while, with Stubbs, we may agree that the commons took no part in politics until long after the reign of Edward I, it is as well to cast our minds back to an earlier period in order that we may have clearly before us the position occupied by the baronage in parliament, since this largely determined the part played by the commons. Let us therefore take our stand in the year 1258 and look, for a moment, backwards and forwards. Before that year we can discern intermittent and 1 8

Select Charters (8th ed.), p. 46 Constitutional History (sth ed.), iii. 267-8.

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exceptional afforced sessions of the king's court, which gradually assume the aspect and name of parliament, but behind these meetings we can perceive no regular pattern, no distinctive organisation.1 Bracton, whose treatise assumed its final shape a year or two before the parliament of Oxford, does not use that word. He has no other name for the tribunal in which the baronage sit than curia regis, though it is clear from his scattered references that the errors even of the king may be corrected before such an afforced tribunal and that there are reserved for decision at such meetings proposals for changes in the law. But if we had Bracton's treatise only before us, we should have no distinct picture of a superior court and might well conclude that the machinery for effecting changes in the law or for remedying injustice was uncertain and imperfect.2 Richardson, ' The Origins of Parliament,' ante, 4th Series, xi. 153-5. Bracton's general position regarding changes in the law is stated in his commentary on the coronation oath at fo. 107 and in his discussion of the several kinds of writ at fo. 4136. His rather ambiguous statement at fo. 16 must be read in the light of these passages. His position regarding the correction of injustice done by the king has excited controversy, largely because the most forceful statement is to be found in the ' addicio de cartis ' at fo. 34. Although I see no reason for rejecting this addicio as non-Bractonian, it is unnecessary to rely upon it, for he adopts the same position at fo. 1716, where he deals with disseisin. At fo. 56, he explains that a writ will not run against the king but that there is an alternative remedy, the petition of right, and we know from the records that this procedure was fully developed by 1270 (Richardson and Sayles, Select Cases of Procedure without Writ, pp. Ixx, clxxxvi f.). Here, however, Bracton puts the point' What if the king will not correct and amend his wrongful act ? ' and he answers that God will avenge the wrong. At fo. 1716 he repeats almost verbatim what is said at fo. 56, but he adds ' nisi sit qui dicat quod universitas regni et baronagium suum hoc facere possit et debeat in curia ipsius regis '. This is saying in measured language what is put more picturesquely in the ' addicio de cartis ', namely, ' Rex habet superiorem, Deum scilicet, item legem . . . , item curiam suam, videlicet comites et barones . . . Et ideo, si rex fuerit sine freno, id est sine lege, debent ei frenum apponere . . .' It does not, however, seem to be to a court composed of earls and barons that Bracton considers obscure and difficult cases should be referred, but to the tnagna curia (fo. 16). From his other references to the magna curia (fo. 1056, 186, 3306, 332-3, 3796), it would seem clear that the ' great court' is the bench, a name it had had since the twelfth century (Richardson and Sayles, op. cit., p. xv: cf. Fleta, lib. iv, c. 9, where the author substitutes ' ad bancum ' for Bracton's ' ad magnam curiam'). Presumably what Bracton chiefly has in mind are decisions on assizes coming before justices itinerant, who are, in effect, advised to leave difficult decisions to a more competent tribunal. He pictures the bench at Westminster acting as it had done before the emergence of the king's bench. The procedure is well illustrated by a roll relating to the Yorkshire eyre of 1218-19 printed by Mrs. Stenton (Rolls of the Justices in Eyre for Yorkshire in 3 Henry III (Selden Soc.), pp. 390-428). The magna curia at this period might be afforced by members of the council, who were not ordinarily employed on judicial work, and by magnates also (ibid., pp. 137, 414 ; Curia Regis Rolls, viii. n). Whether this was still possible in Bracton's day is a question that awaits investigation. He is, however, contrasting, and not coupling, the jurisdiction of the bench in such cases with the amendment and repeal of laws which, he says, cannot be effected ' sine communi consensu eorum omnium quorum consilio et consensu fuerint promulgate' (fo. 16). 1 3

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In the year 1258, however, parliament takes definite form, and henceforward we have to do with an institution of a distinctive kind, which will evolve and suffer setbacks and some interruptions, but which will have a legible and continuous history. If we look across the Channel we shall see, at much the same period, a similar development and it would seem evident that the measures taken in England and France were related, to some extent, perhaps, by conscious imitation, to some extent because the two countries shared a common civilisation, a common heritage of political ideas. It is not, however, the likeness of the French and English parliaments that I would stress—though it is important to remember both that the three sessions a year prescribed at Oxford in 1258 and the two sessions a year of the early part of the reign of Edward I were matched by the three or four sessions a year of the parliament of St. Louis and the two or three sessions a year of the parliament under Philippe le Hardi and in the early years of Philippe le Bel,1 and also that the functions of parliament, in England and France alike, were, in large part, judicial.2 For our present purpose there are certain characteristics of the English parliament that deserve especial attention. The Provisions of Oxford not only prescribed three sessions of parliament a year, but they laid down certain minimum requirements for attendance at each session. It is assumed that the council, in the narrow sense of the word, will be present, that is, the committee of fifteen representative barons (including bishops) who were continuously in office, together with the leading ministers. Beyond these councillors, as we may perhaps call them, not more than twelve representative barons need attend. These are, it is true, the minimum requirements, and it is evident that, on occasion, the attendance at parliament was more numerous,3 but there is no idea that a session of parliament would be in any way imperfect because there was no general summons of the baronage nor, what is of especial importance, because no representatives of counties and boroughs were present. The Provisions of Oxford recognised and, in this particular, were founded upon the right and duty of the baronage to share the government of the country with the king. The Provisions too were founded upon a petition of the barons for the redress of grievances, and so illustrate another important truth, that the barons, as a body, had the right to petition the king on matters 1 Langlois, Textes relatifs A I'histoire du Parlement, pp. 229-34 •' DucoudraVjf Les origines du Parlement de Paris, pp. 50-5. *s Richardson,' The Origins of Parliament', ante, 4th Series, xi. 153-62. Richardson and Sayles, The Provisions of Oxford (reprinted from Bulletin John Rylands Library, vol. xvii), pp. 8-12.

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of common interest. The two correlative principles, the sharing by the baronage of the burden of government and their right to petition, are so well established in practice and in English legal literature of the thirteenth century that they must be regarded as beyond dispute.1 On the other hand, there is no indication, either in theory or practice, that the communities of counties or of boroughs were conceived as having the same or any similar rights or duties. The distinction between the political status of the barons and that of the rest of the community could not be more forcibly expressed than in the well-known words of Bracton: The king has a superior, namely God, as also the law, by which he is made king, and his court, to wit the earls and barons . . . And therefore if the king is unbridled, that is without law, they 1 References to baronial petitions are given later. An early statement of the right of the barons to a share in the government is to be found in the expanded version of the Laws of Edward the Confessor which may be dated c. 1200 and may be as early as the reign of Richard I. It is here said that the king ' debet indicium rectum in regno facere et iustitiam per consilium procerurn regni sui tenere' (Liebermann, Gesetze der Angelsachsen, i. 636). This portion of the Laws of the Confessor underlies Bracton's discussion of the coronation oath, where therefore a like principle is stated (fo. 107) : but he says independently much the same thing elsewhere, when he explains that writs ' of course ' granted and approved ' de consilio totius regni' cannot be modified 'absque consensu eorundem et voluntate' (fo. 4136). Grosseteste had previously used words to the same effect, when he said that he was not so simple as to think that laws could be made or altered ' sine principis et magnatum consilio ' (Epistolae, p. 96) : he also cites the authority of the king and his council for the statement that the archbishop of Canterbury, with the bishops, earls and barons of England, had agreed to the form of enquiry to be made of bishops when bastardy was alleged (ibid., p. 104). When we turn to the records we may often learn no more than that something has been done ' by common council', but there are sufficient instances to show that what is meant is the council of the magnates. Thus, at Easter, 1204, the assize of bread at Winchester was made by the king ' communi consilio baronum nostrorum' (Rot. Lift. Pat., p. 41). A decision to allocate the king's galleys among various ports was similarly taken, in April 1205, ' communi consilio baronum nostrorum ' (ibid., p. 526). On the same occasion, it would seem, the decision that every nine knights should provide a tenth knight for the king's service was taken ' cum assensu archiepiscoporum, episcoporum, comitum, baronum et omniumfideliumnostrorum ' (ibid., p. 55). In 1223 Henry III writes : ' Cum nuper post festum Pentecostes venerabiles patres nostros archiepiscopos et episcopos, abbates ac omnes magnates totius regni nostri yocassemus ut nobis occurrerent apud Northamton' daturi nobis ibidem consilium et auxilium facturi ad defensionem terre nostre in Pictavia . . .' (Shirley, Royal Letters, i. 224). Again, on i June 1233, it is stated that the order relating to the conservation of the peace ' provisum fuit coram nobis et magnatibus nostris de communi consilio eorum' (Foedera, i. 209 ; Close Rolls, 1231-34, pp. 309-10). Shortly afterwards this is called ' provisio nuper facta apud Glouc' de communi consilio barnagii nostri ' (ibid., p. 317). There is a similar reference on 4 August following to a ' provisio nuper facta de communi consilio barnagii regis apud Oxoniam ', requiring the arrest of armed men on the roads and forbidding tournaments, which was apparently a supplementary ordinance (ibid., p. 318). These illustrations will suffice to indicate the extent to which the barons were consulted.

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ought to put a bridle upon him, unless they themselves are unbridled together with the king. And in that case the subject people will cry out and say ' Lord Jesus, with bit and bridle bind fast their jaws.' 1 This idea was in no sense peculiar to Bracton. Its practical outcome is seen in the council of Twenty-five set up by Magna Carta in 1215, in the devices for baronial control in the period from 1258 to 1265 and in 1316 and 1318 and again under Richard II. But though the principle of baronial control as enunciated at Runnymede was still invoked at the end of the fourteenth century, a great and fundamental change in the constitutional position of the baronage had taken place in the interval of nearly two centuries. The baronage had not only made good in practice their claim to control an evil king; they had climbed into power and sat perpetually and without question beside the king. This truth is recognised by a commentator on Magna Carta writing in the middle of the fifteenth century. He has to explain why, despite its form, the charter should be regarded as a statute. He cites the opening words of Chapter I, concessimus et hac presenti carta confirmavimus, and says that ' it was used that what statute that the king and his council made, it was ever set in the king's confirming, so that the king, being chief of his council, spake in his own name and his council's . . . But nowadays, for that the king is intrinsicate within his council and may not do without them, therefore it is written underneath [that is, after the preamble of a statute] in this form, Ordinatum est'.z Of the identity of the council with the lords temporal and spiritual in the fifteenth century more will be said hereafter. At the moment, it is necessary to note that, from unmistakable historical evidence, we can point to a narrow period within which this political evolution was consummated : it must be placed in the reign of Edward II. It is then that the conception of peerage takes shape and men begin to talk of peers of the land. Under Edward I men had hardly thought of peers in this sense, but before the reign of 1 This comes from the ' addicio de cartis ', the authenticity of which, as stated above, has been disputed. It is embodied in Fleta, lib. i, c. 17. The same idea is expressed by the barons in 1312 : the king, prelates, earls and barons are bound to furnish redress ' ad querimoniam vulgi ' (Annales Londonienses in Chronicles of Edward I and Edward II (Rolls Series), i. 215). Again, in Scrope's speech in the Northampton eyre of 1329, he says that ' a parlement dreyn tenu a Northamton pleintz vindrent a nostre seignur le roi de totes costes de roialme qe le peuple fut si malement dement par divers oppressions des grauntz . . . Les pleintz oyz, le roi et les grauntz a ceo parlement esteauntz par comune assent ordinerent . . ,' (Cam, Liberties and Communities in Medieval England, p. 159). 1 Br. Mus. Royal MS. 176. xlvii, fo. 147. The spelling has been modernised.

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Edward II had run its course, the notion of peerage had become thoroughly established in England.1 The practical outcome of this development is the transformation of parliament. There the peers afforce the council and together with the ministers they constitute the magnum consilium, before which the most important business of parliament is transacted.2 One result of this change has not passed unremarked, though the cause may not have been appreciated. In the thirteenth century the barons petition on behalf of the community at large : in the reign of Edward III the commons do so. Beginning with the Articles of the Barons of 1215 there are notices of many baronial petitions, the text of which has not come down to us, but for the most part apparently of a simple nature, asking for the confirmation or observance of the charters or the appointment of the principal ministers by common counsel of the realm.3 The Petition of the Barons in 1258 is unusual in its contents and its length, while another we may remark is that of 1297, which led to the Confirmatio Cartarum.* In the early fourteenth century the position is one of some obscurity, but on some occasions it seems as if the 1 The process by which the name of ' peers ' came to be applied specially to magnates summoned to parliament can be illustrated by parallel passages from Bracton, Fleta and Britton. In his discussion of lese-majesty, Bracton writes : ' Videtur, sine preiudicio melioris sententie, quod curia et pares iudicabunt" and again ' Si autem gravis fuerit et proxima exheredationi, quod redemptionem inducat, ibi debent pares iustitiariis associari, ne ipse rex per seipsum vel iustitiarios suos sine paribus actor sit et iudex ' (fo. 1196). Abbreviated, these sentences become in Fleta, lib. i, c. 21 : ' nam si sit felonia vel transgressio gravis, proxima exheredationi, que redemptionem ad minus inducat, tune coram curia et paribus procedere debet iudicium ' ; while Britton, with Fleta before him, writes : ' et en cas ou nous sumes partie, voloms nous qe nostre court soit juge, sicum countes et barouns en tens de parlement' (ed. Nichols, i. 103). Doubtless contemporary knowledge of the twelve peers of France contributed to the conception of an English peerage (cf. Matthew Paris, Chronica Maiora, v, 281 ; Trivet, Annales, p. 339; Hemingburgh, Chronicon, ii. 78). Under Edward II the word ' peers ' is used in the treaty of Leek (Parliamentary Writs, n. ii. 184) and the phrase ' peers of the land ' ia the sentence of exile on the Despensers (Statutes of the Realm, i. 181, 184). The prelates are stated to be ' peers of the realm ' in 1322 (Cal. Close Rolls, 1318-23, pp. 543, 545). In September 1326 the king speaks of the ' juggementz des piers et parlement' with reference to the condemnation of Roger Mortimer (Parl, Writs, ii. ii. app. 292). Other references to ' peers' and ' peers of the land' will be found in the documents preserved in the Annales Londonienses and by the Bridlington writer (Chronicles of Edward I and, Edward II (Rolls Series), i. 211, 224, 227, ii. 51). * English Hist. Rev., xlvii. 199-201. ' For petitions in 1223, 1225, I244(?), 1248, 1253, 1255, see Wendover, Flares Historiarum (ed. Coxe), iv. 83-4, 99-100 ; Annales Monastici, iii. 93 ; Rot. Litterarum Clausarum, ii. 153 ; Matthew Paris, Chronica Maiora, iv. 362-8, v. 5-8, 20-1, 373-5, 493-5. Mr. Denholm-Young has suggested that the petition which Matthew Paris introduces s.a. 1244 should be referred to 12384 (English Hist. Rev., Iviii. 401-23). For the text see ibid., pp. 169-71.

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commons were associated with the barons in presenting petitions to the king,1 and in 1327 it is definitely established that common petitions are to be put forward, not by the baronage, but by the commons.2 In the words of the Modus Tenendi Parliamentum, some seventy years later, the peers are now all judges and justices.3 They sit, while the commons, as petitioners, stand before the king and the lords.4 From the accession of Edward III the commons present their petitions with nearly the same regularity as they are summoned to parliament, and these petitions become the normal basis of legislation.5 The year 1327 is a point of cleavage in our constitution to which there is a significant witness. The book of the old statutes closes with the reign of Edward II: the book of the new statutes opens with the reign of Edward III. The second book is markedly inferior to the first.6 Edward I's parliaments had been dominated by skilled and trained administrators, whereas the feudal reaction under Edward II had determined that the English parliament should develop, not like the French parliament into a professional corporation, but into an assembly composed of men who, however representative of national life, had little claim to expertness in the arts of government. After the year 1327 the commons are no longer summoned intermittently : their right—perhaps we should rather say, their duty —to be represented in every parliament is recognised, and the new statutes are pre-eminently the work of their hands. For all that, it would be quite wrong to suggest that they constitute an estate on a footing of equality with other estates of the realm.' Petitioners are not on an equality with judges, nor do they become equals until the balance of political forces shifts and ancient facts become fictions, as they have become to-day, when still the king's faithful commons are summoned to stand at the bar of the House of Lords. After several centuries the commons have patently achieved not merely equality but dominance, and the question arises in what manner and how soon did they attain political power or, as it has been 1 3

Bulletin Inst. Hist. Research, ix. 7-8. * Ibid., pp. 9-11, ' Omnes pares sunt iudices et iusticiarii' (Modus, c. 22). It is said expressly in 1330 that the ' countes, barouns et pieres ' are ' juges de parlement' (Rot. Parl., ii. 53-4). 4 As was said in parliament in 1399, ' les communes sont petitioners et demandours . . . le roy et les seignurs de tout temps ont eues et averont, de droit, les jugementz en parlement' (ibid., iii. 427 b). 5 Bulletin Inst. Hist. Res,, ix. 12-13. 6 Ibid. ; Richardson and Sayles, The Early Statutes, pp. 21-3. 7 Stubbs even went beyond this : ' the third estate,' he said, ' claimed and won its place as the foremost of the three ' (Constitutional History, ii. 320 ; see also ibid., iii. 503).

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expressed in other words, how and when did they ' win the initiative '-1 It does not seem possible to answer this question fully if we confine ourselves to the history of parliament in the Middle Ages, though we may perhaps discern then the beginnings of political consciousness and political action. Now the only evidence of any value of political consciousness or political action must, as it seems to me, be direct. And here I may be permitted to record my conviction that, while what we can learn of the wealth or poverty of individuals, of their personal merits or demerits, of their activity in local administration or elsewhere, may have its interest, especially when we wish to know the kind of men who at different times had a place in parliament, it will not tell us how they acted there.2 To know that Epictetus was a slave by origin and maimed in body and a beggar for poverty, even though it be added that he was dear to the Immortals,3 does not tell us that he was a philosopher or teach us anything of his philosophy. Nor do we need a biographical dictionary to establish that the Irish Party was an independent political force under Parnell and Redmond. The question of the political attitude of the commons, or any group of them, can only be resolved by the pragmatic test of their recorded actions. First let a word be said regarding taxation, a matter on which there will be general agreement. No one will deny the importance of the control of the commons overtaxation in the evolution of parliament; but can it be said that the commons in the Middle Ages realised that they had this political weapon in their hands or desired to use it ? Time and again they were reluctant to assent to the demands of the government and were grudging in what they gave,4 but their attitude was determined by considerations of the kind that actuate modern rate-payers' associations.5 Professor W. Notestein, The winning of the initiative by the House of Commons (Raleigh Lecture, 1924). 2 On this point I must, I fear, differ, with respect, from Professor Powicke (' Recent work on the English Parliament', L'Organisation corporative dit Moyen Age (University de Louvain), jii. 138-9), and from Mr. K. B. McFarlane (' Parliament and " Bastard Feudalism " ', ante, 4th Series, xxvi. 64-73). 1

3

s.—Anth. Pal., vii.

676.

For a summary, see Stubbs, Constitutional History, iii. 269-74. Cf, Richard the Redeless, passus iv. 11. 46-9. . . . We beth . . . . . . ysent fro the shiris to shewe what hem greveth And to parle for her prophets and passe no ferthere And to graunte of her gold to the grett wattis By no manere wronge way, but if werre were. See also Paston Letters, v. 178 : ' No more, but I prey God send yow the 4 5

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The provincial convocations of the clergy seem to have been just as reluctant and grudging and from just the same motives.1 To describe those motives in general as political would be to give the word too wide and tenuous a meaning, though now and again criticism of expenditure must inevitably impinge upon politics. But criticism of past expenditure and the theoretical right to withhold financial aid do not in themselves constitute financial control, even if there be added the right of the commons to demand a rendering of accounts for some particular tax.2 The formation and formulation of policies, necessarily entailing expenditure, were above the heads of the commons and, to all seeming, above their desires. Modern analogies may tend to deceive us. It is true that the control of the House of Commons over policy remains to-day indirect and is exercised by controlling the executive, in the last resort by withholding supply. It is also true that the House rarely formulates a policy, except at the bidding of the executive. But the underlying realities of modern politics are far removed from medieval realities, which did not include political parties or annual budgets, but which did include an executive, irremovable except by violence—the king. The king was, of course, several times removed by violence in the fourteenth and fifteenth centuries, and it may be profitable to ask what part the commons played in these and other matters of high politics. Parliament is called upon after each revolution to garb it in some sort of legality and the commons are, in different ways, associated with the proceedings on each occasion ; but there is no pretence that it is at the instance of the commons that Edward II is replaced by Edward III, Richard II by Henry IV, Henry VI by Edward IV, that Henry VI is restored, that Edward V is set aside or Richard III overthrown. On the issues involved individual members of the commons may have held strong views, but as a body the commons were not agents of revolution. Their duty was to accept and acquiesce. The facts are well known and, I presume, beyond dispute. I mention them merely to make clear the limitations within which any political activities of the commons were pursued. Their part is evidently less passive in the impeachments of the last century of the Middle Ages, the political trials which were the precursors of revolution. But Holy Cost amoage yow in the Parlement Howse, and rather the Devyll, we sey,1then ye shold grante eny more taskys." Weske, Convocation of the Clergy, pp. 147—79 ; Stubbs, op. cit., iii. 351—2. * Stubbs, op. cit., ii. 595-9, iii. 271-4.

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there was probably little spontaneity in the proceedings brought by the commons : 1 they had to play an allotted role, because the trial took place in parliament and the judges were the lords. Institutions and the persons comprising them are not, however, to be appreciated by their part in the extraordinary happenings of revolutionary times. Let us therefore turn to other momentous issues. What of war and peace ? The baronage claimed the right to be consulted 2 and doubtless were consulted in practice: but the commons' participation in any decision was of the slightest. The Hundred Years War pursued its weary way during most of the history of the medieval House of Commons, but their part was little more than to provide much of the finance, after commitments had been made. It might perhaps be suggested that this is no fair test of their political responsibilities, since the dynastic issues involved put the matter above the commons' heads: Edward III and Henry V claimed the crown of France as their inheritance and, as feudal monarchs properly should, looked to their subjects for aid. But there were occasions when no dynastic issue was involved, for example, the expedition to Flanders of 1383. The commons certainly were, in a measure, consulted, but they disclaimed .responsibility for giving advice on the conduct of the expedition, leaving the decision to the superior wisdom of the king and the lords.3 What of religion ? What part did the commons take in legislating either against papal interference and foreign influences or in favour of papal claims and against heterodoxy ? There is no question but that what may be conveniently called anti-papal legislation—the Statute of Carlisle and the Statutes of Provisors and Praemunire—were, in the main, government measures (to use a modern term), though purporting to be based upon complaint or petition and doubtless certain of 1 This is not necessarily true of the earliest impeachments, those of Lord Latimer and Richard Lyons in 1376. The evidence of the Anonimalle Chronicle, pp. 85-90, combined with that of the parliament roll (Rot. Parl., ii. 323-7), suggests that on this occasion the commons played a leading part, but 8not without encouragement from above. In the ninth of the Ordinances of 1311 this is stated as an accepted fact, nor would the king be likely to dissent, although he rejected the consequences that were drawn from it. 3 Rot. Parl., iii. 145-8. See especially the speaker's statement' qe combien qe ceste leur charge de le passage nostre seignur le roy ne 1'ordinance de son viage ou de nul autre grant viage a faire soleit ne dcjjt appertenir a la commune, einz au roy mesmes et as seignurs du roialine, come lour semble '. The commons, however, indicated a preference for the bishop of Norwich's proposal: consult John of Gaunt and the parliamentary representation of Lancashire (from Bulletin John Rylands Library, vol. xxii), pp. 27-8, where the evidence is reviewed.

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1

receiving popular acquiescence or approval. Heresy legislation stands on a different footing. The first statute, that of 1382, was passed at the instance of the clergy, and evoked an ineffectual protest from the commons.2 The statute of 1401, which provided for the death penalty, was based upon a petition from the commons, as well as a petition from the clergy, but there is no question that the impulse came from Archbishop Arundel.3 He and his brother bishops had already petitioned Richard II to the same effect * and now, as one of the chief supporters of Henry IV, his importunity could not be denied. Subsequent heresy legislation was of relatively little consequence, once the principle had been conceded that the secular power would burn him whom the Church had condemned.5 Over this cardinal issue there is no reason to suppose that the commons had any pronounced views. There may have been some convinced Lollards among them : there may have been some zealots of orthodoxy. As a body they acquiesced in a decision made above their heads. Nor were the commons obtrusively active on economic questions. The basis of labour legislation was the ordinance of 18 June 1349, issued when parliament was not sitting, and the statute of 1351 appears to have been ready drafted when the commons prayed for stronger penalties.8 The principal measure affecting the wool-trade was the Statute of the Staple °f X353 : this was a government measure, submitted to the commons for their approval.7 The commons were, nevertheless, sensitive on points which touched their material interests and expected to be consulted. The impeachment of Latimer and Lyons in 1376, which differed from later impeachments in that it may well have originated with the commons themselves, turned upon what we should now call frauds on the revenue.8 In 1381 the council anticipated objections to the charters of manumission the king had granted by annulling them and then asking for the inevitable approval of lords and commons. This approval was accompanied by the reminder that 1 For these see Statutes of the Realm, \. 150-2, 316-18, 329, 385-7, ii. 69-74, 84-62 ; Rot. Part., i, 219-23, ii. 144-5, 153-4, 232~3. 252> 284-5, iii. 304. English Hist. Rev., Ii. 5-9. 3 Rot. Parl., iii. 459, 466-7, 473-4 ; Statutes of the Realm, ii. 125-8. Measures against heresy had been foreshadowed in convocation in October 1399 (Wilkins, Concilia, iii. 239). 4 Bulletin. Inst. Hist. Research, xi. 152-4 ; English Hist. Rev., Ii. 21-22. 8 Stubbs, Constitutional History, iii. 371-5 ; but see Richardson and Sayles, The Early Statutes, p. i6w, for the act of 1406. 8 Statutes of the Realm, i. 307-8, 311-13 ; Rot. Parl., ii. 2256, 2276, 233-5: cf. Putnam, Enforcement of the Statutes of Labourers, p. 2. ' Rot. Parl., ii. 246, 2536. 8 For references, see above.

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the manumission of villeins was impossible without their assent.1 The commons, like the lords, were jealous of their rights and conservative in principle, but, unlike the lords, their duties were critical rather than constructive. They were not expected to make any great contribution to statecraft. In 1399 it was said of the knights of the shire—and certainly no more was required of the burgesses—that their function was to be present in parliament to expose the grievances of the people and to sue for suitable remedies. It was incumbent upon them, too, to object to proposals for oppressive taxation and their assent was necessary to all grants and subsidies.2 If the king declared, further, that their advice and assent was to be sought in the making of statutes and in matters affecting the common interest of the realm, we must not read too much into words such as these.3 The king could spare the commons the trouble of attendance at parliament and could transact the necessary business at a great council at which his natural counsellors, the peers, would be present, but from which the representative element would be absent.4 At this point a little more may suitably be said of the position of the lords in parliament and in the council. I have already cited the commentator on Magna Carta who remarks that ' the king is intrinsicate within his council and may not do without them '. Although he does not identify the council with the lords, this identification is necessary. For proof, we may turn to an authoritative statement drawn up during Henry VI's minority. The execution of the king's authority, it declares, ' belongeth unto the lords spiritual and temporal of his land, at such time as they be assembled in parliament or in great council', and, if they are not so assembled, then ' unto the lords chosen and named to be his continual council '.5 Nor is this a novel doctrine : nearly a century before, Bishop Granson of Exeter, when explaining the nature of the crown, asserted that its substance lies primarily in the king's person, as head, and in the peers of the land, as members, which cona 3 Rot. Part., iii. 100. Ibid., p. 420, no. 36. Ibid., p. 427, no. 79. There is a convincing example of this in 1402 : the substitution of a great council is stated expressly to be ' pur tost remedier as susdites busoignes au meindre vexacion de nostre poeple ' (Bulletin Inst. Hist. Research, xi. 158-60). The alternative of great council or parliament is found in the fourteenth century, as in 1386 when Richard II informs Pedro IV of Aragon that certain business will be dealt with ' ad nostrum proximum parliamentum vel magnum consilium ' (Perroy, Diplomatic correspondence of Richard II, p. 41). A similar alternative is found in 1317, though the term used is ' convocatio prelatorum et magnatum de regno ' (Bulletin Inst. Hist. Research, vi. 573). Ordinances of Privy Council, iii. 233 : cf. ibid., p. 238. 1 4

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dition is so bound up with the crown that there cannot be severance without dividing the kingship.1 But ideas of this kind, however convenient for some purposes, have their inevitable inconveniences. By the fourteenth century men had arrived at the conception of an ideal king, undying and incapable of wrong-doing,2 that consorted ill with the natural man who was mortal and fallible. To unite this ideal king with a council of peers, inseparable from him and sharing his authority, was to create a further antinomy. The peers, too, were natural men, with personal interests that might conflict with those of the crown or personal grievances that might need a remedy which only the king could supply. The commons provided a possible means of escape from the difficulty. As petitioners, might not they present petitions on behalf of others ? When first the commons had an established position in parliament, it seems to have been understood that their requests would relate to matters of general interest.3 Moreover, a separate procedure had long been in existence, whereby private petitions found their way to the council in parliament through the hands of the receivers and auditors (or triers) of petitions.4 But it is not easy to draw a precise line between public and private interests and it is clear that, at a very early date, the commons were approached to include among their petitions requests from limited classes, including the lords.5 The spiritual peers were obviously a class apart: they owed allegiance to Rome as well as to the king and they still presented petitions on behalf of the clergy or registered dissent from anti-papal legislation.6 Nevertheless, despite occasional anomalies and exceptions, it becomes manifestly 1 Register of John de Grandisson, ii. 840 : ' la substance de la nature de la corone est principaument en la persone le roi, come teste, et en les piers de la terre, come membres, qi tenent de lui par certeyn homage, et nomeement des prelatz, quiele chose est si annexe a la dite corone q' ele ne poet pas estre sevree sans division du roiaume . . .' 8 Edward II succeeds, without any interval of time and before the ceremony of coronation, on the death of his father. The king can do no wrong, because wrong-doing is incompatible with kingship and because the king's torts, though remediable, are not justiciable. It seems true that the maxim is not stated in express terms, but it is implicit in the law in the thirteenth century: cf. Holdsworth, History of English Law, iii. 464-6, where, however, the development of the doctrine seems to be put too late. Already in the thirteenth century proceedings are directed against the king's ministers and not the king himself (Richardson and Sayles, Select Cases of Procedure without Writ, pp. Ixx f., clxxxvii 8.). ' Rot. Parl., ii. 160, no. n, 237, no. 8. 4 English Hist. Rev., xlvi. 534-6, 542-6, xlvii. 195-201, 379-86. 5 Bulletin Inst. Hist. Research, ix. 9-10. 6 The account given by Stubbs (Constitutional History, ii. 622-9) needs correction in detail, but it provides the principal references, which need not be repeated here. References to heresy legislation have already been given.

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true that the commons are adopting, as their own, petitions that do not represent their spontaneous wishes or their peculiar interests. Sometimes the wording of a particular petition will disclose this and sometimes its substance will do so: sometimes there is the evidence of a separate document to disclose the origin of the request.1 The commons become part of the machinery of government: they are the recognised channel through which certain kinds of business pass. Nor should we be surprised if they are employed to put forward proposals devised by the lords, either in their capacity as the council or individually, as a faction within or outside the council. Nor should it surprise us if, to facilitate the conduct of affairs, there are consultations between the lords and commons. Such consultations took place, in various forms, from the reign of Edward III until the end of the Middle Ages and beyond.2 It has already been said that there were two separate forms of procedure for dealing with petitions on matters of public interest and private petitions. The former were handed to the clerk of the parliament and the latter to the receivers of petitions. In the early years of Edward III this distinction is plainly established and private petitions were separately enrolled. But before long these separate enrolments cease, and there is good reason to suppose that, although the ancient procedure is maintained in appearance, it is being supplanted.8 Many private petitions were going elsewhere than to parliament and some, it seems evident, were finding their way to the commons, in the hope perhaps that the individual grievance of which complaint was made would appear suitable as the basis for a prayer for a general remedy. It is highly probable that the attempted exclusion of lawyers from membership of the commons was due to the fear that 1 The original of a petition included among those put forward by the commons in the parliament of November 1372 (Rot. Par!., ii. 311, no. 20) has survived. It begins : ' Au parlement nostre seigneur le roi moustrent les maichauntz et marineres d' Engleterre ', and continues as in the parliament roll (Exch. T. of R., Council and Privy Seal, E. 28/1, ninth document). * Mr. McFarlane minimises the importance and frequency of these consultations and scouts the suggestion that the clerks who made up the parliament rolls may have omitted to note their occurrence (ante, Fourth Series, xxvi. 54, n. i). He seems to have overlooked the important document of 31 October 1399, printed in Bulletin Inst. Hist. Res., xi. 155-8, which furnishes an instance of such an omission. As evidence of the long continuance of these consultations, it is unnecessary to do more than cite Edward Hall's Chronicle (ed. 1809), pp. 655, 766-7, 775-SOj describing various meetings between members of the two houses in the parliaments of 1523 and 1529. Of the value of Hall's testimony for the light it casts on medieval conditions, more is said later. 1 Bulletin Inst. Hist. Research, ix. 3-5, 17; English Hist. Rev., xlvii. 379-80.

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they would use their influence to further their clients' interests.1 But this was a development that could not be stayed and, by the reign of Richard II, the commons had become a recognised channel through which private petitions were presented to parliament.8 Not only so, but they gave consideration, and in suitable cases their support, to petitions addressed to the council.* It is probable that it was already the practice, as it seems certainly to have been in the fifteenth century, for the lords to refer petitions to the commons.* The details of the procedure are obscure, the more so since at each parliament there continued to be appointed triers of petitions whose functions are not easily related to those of the lords or of the commons. The important point, however, is not any baffling question of detail, but that, before the close of the fourteenth century, the commons were performing a function of a kind that earlier in the century had been performed by the triers of petitions, though the reply was determined by the council5 who, for this purpose, are indistinguishable from the lords. The 1 Bulletin Insl. Hist. Research, ix. 11-12. Cf. Ordinances of the Privy Council, iii. 219-20 ; ' and specialy that no man of lawe be shirrief, for evere it is to suppose that thai have oone parties matiere or other in hande.' • Bulletin Inst. Hist. Research, p. 12, n. 3 ; Gray, The influence of the Commons on early legislation, pp. 348-56. • For example, only one of the ten petitions sent forward by the commons in 1397, mentioned in the note below, is addressed to them. They are printed imperfectly in Rot. Part., iii. 447-8, but a full transcript is in Lansdowne MS. 482, fo. 23-30. 4 Rot. Part., iv. 250, no. 39: ' Item, une autre petition fuist bail!6 as ditz seignnrs en mesme parlement par les merchantz de 1' estaple, conteinautz cynic articles, laquelle petition depuis fuist mand£ par mesmes les seignurs as ditz communes pour ent avoir leur avys, les queux communes mesme la petition rebaillerent come une de lour communes petitions'. • This might be deduced from the customary inscription on petitions ' Soit baill4 aux seigneurs', but the procedure is perhaps best illustrated by the detailed arrangements made on certain occasions when time did not permit all petitions to be answered before the session ended. The earliest statement that has come to light relates to 1397, though it is erroneously referred to 1309 in Rotuli Parliamentorum, iii. 448. Since it is there printed imperfectly from a damaged original, it may be well to reproduce it from a certified copy of 9 February 1675/6 (Lansdowne MS. 482, fo. 30 6): ' Fait a remembrer qe ceOes dis peticions, qi sont annexes ensemble, furent envoi4z au roi par les comunes en parlement, empriantz au roi, de sa grace, q' il plerroit tendrement prendre a coer la matire comprit en ycelleg et faire graciouse remedie en celle partie ; sur quoy le roy, entendues mesmes les peticions, les livere en parlement par ses maines propres et mesmes les peticions, de sa grace par assent du parlement, ad commys as certeines seignurs, c'est assavoir, 1'ercevesque de Canterbirs, le due de Lancastre, 1'evesque de Wyncestre, 1'evesque de Sarum, le cont de Roteland, le count Mareachall, ovek les officers le roy, pur trier, regarder et examiner les ditz peticions en la quinzaine de Pasqe proschein et outre ceo pur faire, par auctorit<§ du parlement, graces et pardone et autres remedies resonables en ceo cas, solonc ceo qe leur semblera menlx, par leur bone discrecion, pur 1'estat, honour et honest6 nostre seignur le roi en celle partie'. A similar procedure was followed in 1422 when petitions were sent to the council ' a 1'entent qe les seignurs de mesme le

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petitions addressed to the commons and the petitions they were called upon to consider were not necessarily, nor perhaps for the most part, such as would give rise to legislation : many certainly were concerned with matters of grace or administration.1 It is by no means clear why their advice or support should be desired. Yet the fact that their opinion was sought by the lords and their intervention by petitioners is a fact of importance, for it is the basis of the procedure under which they were to share in private bill legislation. It has been necessary to mention the relation of the commons to private bills if the picture of their activities in parliament was to be reasonably complete, but .there is a little more yet to be said of their participation in affairs that can be more strictly termed political. Although it was only with the accession of Edward III that the commons' place in parliament became established, not very long after that date we can find evidence that they were already regarded as of some consequence in international politics. This is the manner in which the pope is addressed in a letter dated in open parliament at Westminster on i8th May 1343 : To the very holy Father in God, Sir Clement, by divine providence sovereign bishop of the holy church of Rome and of the church universal, his humble and devout sons, the prince,v dukes, earls, barons, knights, citizens, burgesses and all the commune of the realm of England in the parliament held at Westminster on the quinzaine of Easter last past, devoutly kissing his feet with all reverences and humilities. The letter goes on to protest against the reservations, provisions and collations granted by the pope and his predecessors and to ask for a remedy.2 There were precedents for this letter, conseil pur le temps esteantz. facent determinations de et sur les matiers contenuz en ycelles peticions ' : no distinction is made between petitions sent forward by the commons and others (Rot. Parl., iv. 174, no. 21). Likewise in 1428 petitions were sent to the lords of the council (ibid., p. 334). 1 Besides the petitions printed in the RoMi Parliamentorum, e.g., iii. 515-16 (no. 9-11), 517 (no. 14), 520 (no. 21, 23), there are many imprinted petitions which illustrate the point. Thus there is a petition from Sir William Bowet who desires to prosecute his suit for reversal of outlawry (Coram Rege Roll, Mich. 7 Hen. V, K.B. 27/634, Rex, m. 29). A petition from Margery Boys and others for the correction of an erroneous record of an assize of novel disseisin leads to a decree in the court of chancery (Ancient Petitions 9862-4). The earl of Somerset and his brother, both minors and prisoners of the Scots, ask to be ransomed (Anc. Pet. 9860). Edward, Lord Hastings, asks for the appointment of commissioners to decide his action against Reginald, Lord Grey of Ruthyn, regarding the right to bear the Hastings arms (Anc. Pet. 9883). 1 For the text see Murimuth and Avesbury, Chronica (Rolls Series), pp. 138, 353; there is a Latin version in Hemingburgh, Chronicon, ii. 401-3.

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notably one in 1301 and another in 1307. The first, addressed to Boniface VIII by the barons in the parliament of Lincoln, is sealed by them on their own behalf and on behalf of the whole community of the realm of England.1 The second, to Clement V, purports to be a protest from the clergy and people of the realm.2 In neither case is any specific mention made of the knights, citizens and burgesses. The contrast with the letter of 1343 is noteworthy. If Edward III was comforted by the support of the knights, citizens and burgesses in parliament, how much more comfort might Henry IV derive from their support in dealing with foreign powers. In one manifesto of his there is incorporated a petition coming from the commons, but obviously inspired from above. In the first edition of this manifesto, in order to enhance the importance of the commons' declaration in his favour, the king describes them all as knights and says that they are the proctors and attorneys of every county, city and borough and of the entire people of England, lawfully constituted according to the rule, custom and practice of the realm.3 To this, and to another royal manifesto of two years previously, there was appended, by the side of the seals of representative peers, the seal of the speaker on behalf of the commons.4 We must not, however, read too much into these royal tributes to the high place occupied by the commons in the state. Henry was desperately anxious to establish his title to be regarded as a lawful king, especially in face of the scorn with which he was treated in France, and he needed to make the most of any support he could claim. We shall look in vain, during the rest of the middle ages, for parallels either to Henry's description of the commons or to their participation in royal manifestos. These things consort incongruously with the commons' reluctance, a few years earlier, to accept responsibility for decisions taken in parliament.5 The superiority of the lords is too obvious to permit us to attribute to the commons more than a subordinate, if respectable, part in the proceedings of parliament. But evidently it would have been inconvenient to Henry IV if the commons had been grudging or reluctant to fall in with his wishes. 1

Foedera, I, ii. 926—7 ; Parliamentary Writs, i. 102—4. * Rot. Part., i. 207-8 ; cf. ibid., pp. 220-1. * Lords' Reports on dignity of a Peer, v. 161. This manifesto, of 7 June 1406, may never have been used, since it was superseded by another, of 22 December 1406, which incidentally does not repeat the description given to the 1commons. Bulletin Inst. Hist. Research, xi. 160-2 ; Lords' Reports on dignity of a Peer, v. 163-7. 5 Rot. Par!., iii. 427, no. 79.

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Other kings felt the need of their goodwill. If the commons had been well disposed towards Richard II in 1386 the impeachment of Michael de la Pole would have been frustrated, as would the impeachment of his grandson William in 1450, had Henry VI been able to find strong support among the commons.1 They were, therefore, on occasion, worth wooing and worth managing. There are indeed signs that, in the fifteenth century and in the latter years of the fourteenth, knights of the shire were, from time to time, enlisted in the interest of the king or of some great lord. There is not the same evidence regarding the burgesses, though the pocketborough came into existence in the fifteenth century : the burgesses were not of the same consequence as the knights, who enjoyed unquestioned dominance in the lower house.2 And this brings me to the vexed question of elections and their management. A seat in the commons had, by the fifteenth century, become in itself something desirable. This had not always been so. Perhaps the most striking piece of evidence is the representation of Northumberland from 1337 to 1339 by chancery clerks, whose duties would in any case 1 For the proceedings see Rot. Parl., iii. 216—20, v. 176—83. Stubbs's commentary has not been superseded (Constitutional History, ii. 495-9, iii. 149-54). 2 That the knights maintained a separate identity within the general body of the commons does not admit of doubt. Not only did they represent a distinct interest but, although they were not consistently an entirely homogeneous group, speaking generally they enjoyed both wealth and social superiority and unquestionably dominated the commons (Bulletin Inst. Hist. Research, ix. 13—14 ; McKisack, Parliamentary representation of the English boroughs, p. 131). I have already suggested that, if it could be assumed that the knights sat in the common house while the burgesses stood, we should have an explanation of an obscure line in Richard the Redeless, ' No burne of the benche, of borowe nother ellis ' (Cam, Liberties and Communities in Medieval England, p. 23O«). Could a knight be appropriately called a ' burne of the benche ' ? That the knights sat is quite clear from the account of the parliament of 1376 in the Anonimalle Chronicle (pp. 80-2), but, since only knights are reported to have spoken, we do not learn whether burgesses sat or not. A passage in the report of the Colchester burgesses on the parliament of 1485 seems to make it tolerably clear that they stood or, at least, that seats were not reserved for them. Modernising their spelling, the Colchester members state as follows : ' The seventh day of November by nine of the clock so for to proceed unto election for to choose a speaker. So the election gave their voice to Thomas Lovell, a gentleman of Lincoln's Inn. That done, it pleased the knights that were there present for to rise from their seats and so for to go to that place where as the speaker stood and brought him and set him in his seat . . .' (Red Paper Book of Colchester (ed. W. G. Benham), p. 62). The knights then were seated together, while Lovell was standing apart: anyone familiar with the Chapter House at Westminster will appreciate how limited the seating accommodation was and can visualise the scene. The implication is that Lovell was not a knight. If so, he was the first town member to be elected speaker. We cannot verify this, for the returns for the parliament are lost, but it is as well to say that the statement that he was a member for ' Norfolk or Middlesex ' is a mere conjecture (Wedgwood, History of Parliament, 1439-1500. (Biographies), pp. 555-6). In any case the Colchester report illustrates effectively the dominance of the knights.

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1

take them to parliament: but a good deal of other evidence suggests that there was much indifference, if not widespread reluctance, to service in parliament.2 In the fifteenth century there was a different atmosphere. Three or four candidates seem commonly to have presented themselves for election in the counties,3 while in the towns there appears to have been a gradual and steady infiltration of candidates from outside, who were citizens or burgesses merely for the purpose of election.4 In towns the franchise was normally a narrow one, and the choice, if it were not influenced from without, presumably fell upon some worthy burgess who looked to this, as he looked to other borough offices, as the inevitable and natural corollary of a successful career.5 Sometimes perhaps the sheriff made his return regardless of the wishes of the townsmen, but it is by no means certain that this was a widespread practice in the fifteenth century.6 The more important elections in the counties—more important because they concerned more important people—have left much greater trace on the records than borough elections, 1 William of Embledon and David of Wooler are the clerks in question : see Return of Members of Parliament, i. 114, 122, 125, 127. For biographical details, see Wilkinson, The Chancery under Edward III, pp. 162, 164-5, and Archaeologia Aeliana, 4th Series, xi. 33-6, where, however, there seems to be some confusion with another William of Embledon. * John of Gaunt and the parliamentary representation of Lancashire, pp. 317-23. Here are particulars of nine disputed elections, which, however, there is no reason to regard as exceptional in respect of the number of candidates. Rutland, 1404 : 3 candidates (Rot. Parl., iii. 530). Bucks, 1429 : 4 candidates (Exch. Parliamentary and Council Proceedings, E. 175/3/27). Hunts, 1429 : 4 candidates (Return of Members of Parliament, 1.316). Hunts, 1450: 3 candidates (Prynne, Parliamentary Writs, iii. 156-9). Norfolk, 1450 : 3 candidates (Paston Letters, ii. 176, 184-5). Kent, 1455: 3 candidates (Exchequer Plea Roll, E. 13/146, mm. 36, 43, 466). Suffolk, 1455 : 3 candidates (ibid., mm. 69, 70, 8ib). Norfolk, 1461: 4 candidates (English Hist. Rev., xl. 79-86; Paston Letters, iii. 36, 284, 290, 297). Suffolk, 1472 : 3 candidates (E. 13/158, mm. 59, 626, 666, 67, 73, 75). * On candidates from outside the borough, see McKisack, op. cit., pp. 100-1, 106-18, and Wedgwood, History of Parliament, 1439-1509 (Register), pp. Ixxxviii-xc. * Information is scanty, except in the case of London, where conditions were exceptional: for other towns, see McKisack, op. cit., pp. 101-6.. * The two known cases belong to the reign of Richard II (McKisack, op. cit., pp. 39-40), and it is unsafe to generalise therefrom. One of the noteworthy features of the case of the Shaftesbury representation in the parliament of 1384 is that the town made a return direct to John Montague, steward of the household, and professed to be entirely devoted to the king's interest. As Prynne pointed put, the sheriff actually returned the two members elected by the town and did not substitute his own nominee, despite thee burgesses' apprehension (Prynne, Parliamentary Writs, iii. 286-7). Th strongest evidence at present available for the fifteenth century appears to be a petition from the commons ascribed to 15 Henry VI in Rot. Parl., iv. 511, and the petition and resulting statute of 1445 (ibid., v. 115-16 ; Statutes of the Realm, ii. 34°-2)-

XXIV 40

and we need be in no doubt of the general picture the county court presented when, in the fifteenth century, it was called upon to elect two knights of the shire. There may have been exceptional cases where the choice was. settled over the heads of the suitors, but ordinarily the county court was, on these occasions, attended by several hundred qualified voters as well as by many others without qualification.1 The proceedings were tumultuous. Names were proposed, and supporters shouted their approval.2 There might be threats of violence and the session might end in confusion.8 Without an electoral roll and without any system of ballot, the sheriff's task was, at best, difficult.* To circumvent corruption it was provided by statute in 1406 that the names of those elected should be returned in 5an indenture under the seals of the electors who chose them. But the provision was virtually impossible of performance, for, if literally obeyed, it would have meant that four or five hundred persons would affix their seals. As a6 rule the number of electors named in an indenture was small, but even in a case where 164 gave their names and appended their seals, three hundred others were said to have voted in favour of the two knights returned by the sheriff. Yet it was alleged that one of these two had been improperly returned.7 Where there had been a contest and much confused shouting, the sup1 The statutory indentures usually afford no indication of the numbers present. When we get details the numbers are large. In Bucks, in 1429, there were 125 suitors named and a great many others (E. 175/3/27). In Hunts, in 1450, there were 124 freeholders and 300 good commoners who voted for the successful candidates : seventy others voted for the unsuccessful candidate (Prynne, Parliamentary Writs, iii. 158). In Suffolk, in 1455, there were 164 named and very many others, to the number of 300, who were qualified voters : these were said to have voted for the successful candidates and presumably a further number of supporters of the unsuccessful candidate should be added (E. 13/146, mm. 696, 70). In Norfolk, in 1461, there is mention of 500 persons on one occasion and 1,000 on another, although these figures are obviously unreliable (English Hist. Rev., xl. 82-3). In Cambridge, in an uncertain year, but apparently 1439 (not 1454), there was a ' multitude of people ' (Ordinances of the Privy Council, vi. 335 : cf. Rot. Purl., v. 7-8). • So it is said of the supporters of Gilbert Debenham, the unsuccessful candidate for Suffolk in 1473, that they ' tune et ibidem nominarunt et voces suas ibidem dederunt et elegerunt ipsum Gilbertum esse unum militum comitatus Sufi' predict!' (E. 13/158, m. 676). 1 As in Cambridge (ut supra) and in Norfolk in 1461 (English Hist. Rev., xl. 479-86; Paston Letters, iii. 36, 297). The difficulties are well illustrated by the Norfolk election of 1461. After the first, abortive, election it was suggested that the candidates should get a list of their qualified supporters who had voted (ibid., p. 290). At the second election, the sheriff seems to have attempted to verify the qualifications of those voting, but apparently gave up the attempt (English Hist. Rev., xl. 85). • Rot. Parl., iii, 601 ; Statutes of the Realm, ii. 156. • Prynne, Parliamentary Writs, ii. 128-131, iii. 173-8, 252-4; Stubbs, Constitutional History, iii. 421-2. 1 In the Suffolk election of 1455 (E. 13/146, mm. 696, 70).

THE COMMONS AND MEDIEVAL POLITICS

XXIV 41

porters of any one of the candidates might demand that the sheriff should enter into an indenture, but the final decision, when there was the least doubt, was his.1 Petitions against false returns are known,2 but from 1410 onwards a remedy was provided in the courts of common law.3 Thereafter the sheriff accused of making a false return might have to face an action by an unsuccessful candidate or, subsequent to the statute of 1445, an action by one or more common informers or, quite possibly, several actions.4 But the chances are that the plaintiffs would be worn down by the law's delays and, it may be, lack of sympathy on the part of the courts.6 Certainly the statutes did not provide a swift and effective remedy. The opportunities for manipulation are obvious, and sheriffs were in bad repute. They were charged by the commons with corruption and venality in arranging elections,8 and it was assumed by the council, as a matter of course, that, if a lord's steward were made sheriff, he would serve his master's interest.7 Moreover, it is quite certain that, on occasion, the sheriffs were directed to return particular candidates. The most notorious instance is that of the elections to the parliament of Coventry 1 In 1429 an indenture for John Hampden and Andrew Sperlyng was sealed by 125 suitors, but the sheriff of Bucks returned John Cheyne and Walter Strickland (E. 175/3/27). In 1461 the undersheriff of Norfolk writes to John Paston ' I purpose me, as I wol answer God, to retorne the dieu eleccion, that is after the sufficiente, yow and Master Grey ; nevir the latyr I have a master' (Paston Letters, iii. 36). In 1472 the sheriff of Suffolk ' aliquam indenturam inter ipsum ac easdem personas que voces suas sic ibidem dederunt de eleccione ilia facere noluit' (E. 13/158, m. 676). a As in the case of the Rutland election of 1404 (Rot. Parl., iii. 530, no. 38). In 1384 there was a petition from Shaftesbury (Prynne, Parliamentary Writs, iii. 3286-7). Statutes of the Realm, ii. 162 : amending statutes were passed in 1427 and 1445 (ibid., pp. 235-6, 340-2). * The statute provided for an action of debt against the returning officer by an elected member not returned or, in his default, by any other person. Process was to be as in an action for trespass. The action in the exchequer was on the sheriff's account, the allegation being that he was in debt to the plaintiff to the amount of the statutory penalty. In the case of the Suffolk election of 1455, the defendant in the exchequer stated that an action was pending against him in the Common Bench (E. 13/146. m. 70). In the case of the Suffolk election of 1472, the unsuccessful candidate commenced an action in the exchequer in the Michaelmas term 1472, but abandoned it (E. 13/158, m. 59) : in the following Hilary term independent actions were commenced by John Peverell and John Gravener (ibid., mm. 67, 75). 6 No conclusion is reached in the actions I have noted in the Exchequer Plea Rolls. In two instances it is stated that the action is discontinued (Kent, 1455, E. 13/146, m. 466 ; Suffolk, 1472, E. 13/158, m. 59). In the other cases, after many adjournments, the action fades out. The court does not appear to protect the plaintiff against what seem obviously to be deliberate delays by the defendant. 6 Rot. Parl., iii. 601, v. 115. 7 ' Item that no man beyng stuarde withe any lorde be neither shirrief ne eschetour in the shires that he is officer in ': this is in 1426 (Ordinances of the Privy Council, iii. 221; Rot. Parl., v. 4096).

XXIV 42

in 1459. Besides the normal writs of summons, the sheriffs received writs of privy seal intimating whom they were to return : in some counties there were the formalities of election and in others apparently not.1 The sheriffs, who had themselves been illegally retained beyond their year of office, took alarm and sought, and were granted, indemnity from the penalties imposed by the statute.2 A similar allegation that the free election of knights of the shire was obstructed is made in the case of the Reading parliament of 1453 ; 3 nor is there much room for doubt, although we do not possess the corroborative evidence that we have in the case of the Coventry parliament, for there was nothing new in the wholesale manipulation of elections. It is quite evident that the elections to the first parliament of Henry IV were a mere pretence and that the sheriffs had received other instructions besides the formal writs of summons.4 And if Richard II had not had much success in this business of manipulating elections, there was widespread belief that he had attempted it.6 We need not suppose, however, that elections were manipulated with great frequency in the interest of the king : there is no reason to suppose that it was often necessary.6 No great political issue faced the electors at most elections, and indeed the greatest of political issues were settled outside parliament. After the event, the victor could count on adequate support, or at least compliance, on the part of the lords and his faithful commons. Sometimes the proposals put before them may have been strong meat for their stomachs, as when the commons were asked to approve the attainders of 1485. ' There was many gentlemen against it', Sir Robert Plumpton was told by his corre1 Th« sheriffs themselves say that' it pleased youre Highnes to commaunde dyvers of your seid besechers by your honourable letters of pryvie seall to precede to election in their severall shires of knyghtes for shires for this your present parlement for the good and hasty speed thereof ' and that the elections were ' aswele by force of youre writtes as by force of youre letters of pryve seall as other wise' (Rot, Part., v. 367, no. 35). The following year the commons say that the parliament ' was unduely summoned and a grete parte of the knyghts for dyvers shyres ... and many citezeins and burgeys for dyvers citees and burghes... were named, retourned and accepted, some of theym withoute dieu and free election and some of theym withoute any election' (ibid., p. 374). See 8also the English Chronicle (ed. J. S. Davies, Camden Soc.), p. 83. Rot. Parl., v. 367 (35). The P.R.O. List of Sheriffs shows that in a number of instances, but by no means universally, the serving sheriffs were retained for more than a twelve-month. 8 ' Bale's Chronicle' in Flenley, Six Town Chronicles, pp. 139-40. * ' The elections to the October parliament of 1399.' Bull. Inst. Hist. Research, xvi. 137-43. 8 The evidence is examined in my John of Gaunt and the parliamentary representation of Lancashire, pp. 34-43. • For the allegations against Henry IV in the light of the available evidence, see ibid., pp. 43-5.

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XXIV 43

spondent in London, ' but it would not be, for it was the king's pleasure.'1 Direct evidence that the great lords influenced elections is not abundant, though there seems to be adequate ground for believing that they did so, not necessarily, of course, for reasons of state, but perhaps to gratify a friend or a dependant.2 Legal proceedings following disputed elections do not, so far as I am acquainted with them, give any hint of the forces in the background or suggest any reason why the sheriff should have made a false return. We should not, however, conclude that such happenings were inadvertent and without motive. Chance sometimes provides the clue. The election of the knights of the shire for Kent in 1455 led to an action on behalf of an unsuccessful candidate but, though it is alleged that he was, in fact, elected, no reason is advanced why the sheriff should have refused to return him.3 However, a letter under the privy seal has survived which makes it clear that complaint had been lodged with the council of ' busy labour made in sundry wises by certain persons for the choosing of the said knights '. The letter, which is addressed to the sheriff, continues : ' and by likelihood inconvenient might ensue of such party as shall be at the said election, of the which labour we marvel greatly, inasmuch as it is nothing to the honour of the labourers but against their worship '. The sheriff is instructed to declare at the time of the election that the king's will is that the shire shall have their free election according to the law and that, if anyone, of whatever estate, degree or condition he be, presume to attempt the contrary, he shall run in the king's grievous displeasure.4 It seems plain from this phraseology that the persons unnamed were highly placed, whom the ordinary process of the law would not touch, members perhaps of the council itself, though we cannot identify them and do not know whether they backed a successful or an unsuccessful candidate. I have been criticised for suggesting that the commons under Richard II and Henry IV were credulous and willing to be led.5 1 Plampton. Correspondence, pp. 48-9. Similarly the Colchester members reported that the bill' sore was questioned with ' (Red Paper Book of Colchester, p. 64). For the attainders, see ibid, and Rot. Parl., vi. 275-8. 1 So the Duchess of Norfolk writes on behalf of ' our right welbelovid cosin and servaunts, John Howard and Syr Roger Chambirlayn '. That this was to gratify Howard can hardly be doubted, since, at a hint that he was not persona grata with the gentlemen of the shire, he was as ' wode as a wilde bullok' (Paston Letters, iii. 34, 39). However, he was elected. 3 E. 13/146, mm. 36, 43, 466. * Ordinances of the Privy Council, vi. 246-7 ; Rot. Parl., v. 450-1, no. 39. * Ante, 4th Series, xxvi. 64. If read in their context, however, it will be seen that these words were carefully limited in their application (John of Gaunt and the parliamentary representation of Lancashire, pp. 33-4).

XXIV 44

Doubtless these are relative terms, but in this connection they appear to be apt. There is no need for a long catalogue of instances in which one or other of these adjectives seems applicable. Let me recall three. The assumption made in 1371 that a tax of 22s. 3d. a parish would yield £50,000 postulates the existence of well over 40,000 parishes and involves an error of nearly 400 per cent. The knights of the shire could have, at least, tested this assumption by applying their local knowledge, but they let it pass without challenge.1 In impeaching Michael de la Pole, the commons may have been unduly credulous or unduly influenced, but they can hardly be said to have been neither.2 Of the preposterous justification advanced by Henry IV before parliament when claiming the throne, Richard, duke of York, used words we need not seek to better : ' his saying was only to shadow and colour fraudulently his said unrighteous and violent usurpation and by that mean to abuse deceivably the people standing about him '.3 I fear that in parallel circumstances the commons showed to no greater advantage throughout the fifteenth century. Not, of course, that in any parliament they were all of like mind. But their wranglings and disputations took place behind the closed doors of the common house. The picture drawn by the satirist in Richard the Redeless so closely resembles the glimpses Edward Hall gives us of the commons under Henry VIII * that we have every reason to believe it to be a faithful, if comically exaggerated, representation of their proceedings throughout the fifteenth century. There they are : the old hands and the new, talkative, muddle-headed, somnolent, silent, rash and prudent, bold and timid, some serving the interest of the court, some the interest of their masters, some their own interests ; everyone is there, down to those who blab the secrets of the house.6 Yet these debates, however much became known of them outside, were private discussions, as indeed the commons' debates still technically are. That speech there was, in a measure, free may be an important truth, if we look to the future that 1 Rot. Parl., ii. 303-4. For a discussion by the commons of the number of parishes in England, see Hall's Chronicle, p. 656. 8 See the commentary of Stubbs (Constitutional History, ii. 495-9) and of Tout (Chapters in Mediaeval Administrative History, iii. 413-14), supplemented by that of N. B. Lewis in English Hist. Rev., xlii. 402-7. ' Rot. Parl., v. 377, no. 17. 4 See his accounts of the parliaments of 1523 and 1529 (Chronicle, pp. 652-3, 655-7, 764-8, 774-81, 784-6, 788-9). Of the latter parliament Hall was a member and his account of the commons' proceedings is that of an eyewitness (Bulletin Inst. Hist. Research, ix. 174-5). 6 The relevant passage is now conveniently reprinted, together with a modern version, by Miss Cam in Liberties and Communities in Medieval England, pp. 230-1, 233-5.

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XXIV 45

parliament had before it. But freedom of speech in the common house did not mean freedom of speech in open parliament. There the speaker rarely spoke other than acceptable things: if not always acceptable to the king, acceptable to the lords who, for the time, were his masters.1 1 The medieval protestations of the speaker referred to speech in parliament, that is, before the lords. The process by which the speaker's petition became one for freedom of speech in the commons' own house has been traced by Professor Neale in ' The Commons' privilege of free speech in Parliament', Tudor Studies, pp. 257-86. It is not until 1451 that there is an overt claim to the commons' ' freedom to speak and say in the house of their assembly' and then the claim is not made by the speaker (Rot. Parl., v. 337). That this freedom, in so far as it existed, was very limited is sufficiently indicated by the resentment displayed against tale-bearers. They are mentioned, not only in Richard the Redeless, but also by the speaker in 1401, who asked the king to disregard them (ibid., iii. 456). Already in 1376 the commons were apprehensive lest the secrets of their house should be divulged and, at the instance of Peter de la Mare, they took an oath to keep their own counsel (Anonimalle Chronicle, p. 80). However, tale-bearing to the king continued and it is mentioned by Edward Hall, who specifically names Thomas Cromwell (Chronicle, pp. 775, 788). Reticence on any subject affecting the king was, in any case, a mere matter of prudence so long as the clerk to the commons was a chancery clerk, whose first duty was to the king and who might well disclose unguarded words: for these clerks, see Pollard, ' The mediaeval under-clerks of parliament', Bulletin Inst. Hist. Research, xvi. 65-87. But free speech was not to be expected even in the king's council, as Fortescue remarks (Governance of England, p. 145)' and as is implied by the order of 1426 ' that every man have full freedom to say what that him thinketh' (Proceedings of the Privy Council, iii. 215; Rot. Parl., v. 408).

NOTES Page 23, n.2 n.3 26, n.2 27, n.l 30, n.3 32, n.4 33, n.4 n.5 34, n.2 n.3 35, n.l n.2 37, n.4 39, n.2 42, n.5 43, n.3 45

Above, I. 153-62. Above, III. 8-12. Above, XVII. 199-201. Above, XXI. 7-8. Forroialine readroialme. Above, XVI. 73; XXIII. 158-60. Above, VI. 534-6,542-6; XVII. 195-201; XXII. 379-86. Above, XXI. 9-10. For ante read Trans. Royal Hist. Soc., and see XXIII. 155-8. Above, XXI. 3-5, 17; XXII. 379-80. Above, XXI. 11-12. Above, XXI. 12, n.3. Above, XXIII. 160-2. Reprinted from Bull. John Rylands Lib., xxii (1938). See note above. For ante read Trans. Royal Hist. Soc. Just as the nineteenth century contributed its pre-conceptions about parliamentary democracy, so the twentieth century seems to look for its own image in the past. For this century has seen throughout Europe the cult of egalitarianism: the emphasis is laid firmly upon 'rights' and little attention is given to 'duties'. But this

XXIV 46 is not how medieval men thought. To them it was not outmoded, as it is today, to speak of God's making men high and lowly and ordering their estate, or to speak of the three estates in parliament - the Lords Spiritual, the Lords Temporal and the Commons. Yet this conception of society as divided into 'estates' is absolutely essential in understanding the history of the English parliament and its division into a House of Lords which gives the judgements and a House of Commons which pleads for those judgements. We should be more in tune with medieval men if we did not seek for and consciously exaggerate the few occasions when they protested against the government. Whilst we speak of their 'rights' in parliament, they themselves knew that such rights simply vanished if the king exercised his prerogative and unquestioned right not to summon parliament at all. Parliament was not a self-perpetuating corporation and it had no rights apart from the king, who called it into being as he willed and dissolved it as he pleased. What motivated the commons was their sense of duty, the performance of those things which they had been summoned to do. They had no thought of being in control and they did their work - and important work it was - in subordination to government. And that important work did not lie in fields where it is usually placed. In legislation the king's power to dispense with any statute on the ground that it conflicted with the public welfare or the royal prerogative was practically unlimited, a power that did not come from the common law but was his ex ojfido, to be exercised under God and in consonance with his own conscience. Moreover, the profound differences between the England of 1300 and the England of 1500 owed very little to legislation, very little to parliament. It is not by statute that the medieval state passes away, that the king's secretary becomes his chief minister, that the chancellor becomes the head of the chief court of equity. The great changes in the State were beyond the purview of parliament. As for taxation, the efforts of the commons to reduce and regulate it have been wearisomely seized upon to prove their independence of government and the control exercised by parliament over money supplies. Here we can but draw attention to a few incontrovertible facts. The question of consent to taxation had been raised and the battle won long before parliament took shape. The essential was assent and not the institution in which that assent was given: for long it was given in councils and great councils, in non-parliamentary assemblies, as we have seen. Medieval taxation until far into the fourteenth century was a matter of bargaining between the king and the various social groups within his jurisdiction: with the Jews, with the merchants, with counties and with boroughs, with the Church as well as with the commons in parliament, and everywhere subsidies on the basis of a quid pro quo in redressing grievances were normal. It would provide a fresher and more profitable perspective if we thought of the 'lower clergy' instead of knights and burgesses and of 'clerical taxation' instead of 'lay subsidies' and thus realised that they are on a par and that argu-

XXIV 47 ments about one must equally apply to the other: 'par communaute de la parlement quele [est] de trois degreez, cest assaver, de procurators de clergie, chivalers de countez et burgeys'. Too often the lower clergy are left out of the argument. Only slowly was it coming to be considered that taxation mut not be sought by loose agreements but negotiated solely in parliament. In the fifteenth century taxation in parliament was clearly being bye-passed. In any case, the commons never took the really vital step in passing beyond the fiscal level to the higher political level and using finance to settle the issues for which it was to be provided: they might object to taxation for war with France, they did not object to war with France. The commons disclaimed responsibility for foreign policy, for 'it does not belong to the commons but to the king and the lords of the realm, so it seems to them' (Rot. Parl, III. 145-148). All this having been said, the singularity of the English parliament was the part played by the commons within it, and that part became more important as the fifteenth century went by. Accepting their position of subordination - in the parliament chamber they stood whilst the lords sat - they were eager to perform assiduously the duties assigned to them and in so doing they made their greatest contribution, not in legislation or taxation, but in justice, in their main service of petitioning the crown and securing answers to their requests on behalf of the commonalty of the realm. The reconsideration of petitions, the redrafting, the constant discussion, as we would expect, between lords and commons at which the commons could put forward proposals and the lords accept them: out of these debates over many decades and in many parliaments emerged the parliamentary procedure that was to remain for centuries to come and sail remains: the second and third (and maybe fourth) readings of commons' bills, the public acts of parliament based on those commons' bills, and the private acts of parliament based on the private petitions they sponsored. The status of the commons steadily rose and many knights and, burgesses were indeed 'men of substance and influence, keen to sit in parliament'. And who denies it? And does anyone deny that this is equally true of the commons in the parliaments of Henry VIII or that they were sometimes froward and difficult to manage? And yet does anyone doubt the substantial truth of Stubbs's own words that the king 'used his parliaments merely to register his sovereign acts'? Henry's faithful commons doubtless had a capacity for independent action. But the historian who overemphasises this capacity of theirs must take a singular view of perhaps the greatest of the Tudors and his subjects, and not a very profitable one for understanding the history of the English Reformation. The acid test of independent action in every century is pragmatic. If only the biographical historians would give us a single contemporary text to counter-balance the weight of the known texts! We repeat that there is nothing derogatory in working in subordination, even though the commons remain at the end, as they had been at the beginning, outside the king's council, outside the

XXIV 48 power-house of government. After having the medieval parliament and its workings in mind for nearly sixty years, we ourselves would not stress 'rights' but something that is little expressed in documents because it is in the air and taken for granted, the intangible, the impalpable atmosphere of 'freedom', the feeling that there is a free and open approach to the king for justice when parliament meets. We shall not find it in any other assembly or on any other occasion.

XXV THE EARLY

STATUTES.

OME excuse may appear to be required for an essay which discusses anew the problems presented by the early statutes. But it has seemed to us that the major problems have scarcely been apprehended, and that there is some danger lest misconceptions regarding the material available, its nature, its date and its authority, may lead to entirely erroneous conclusions on the subject of medieval legislation. Let us first ask the question : What was a statute ? The word, in the sense of a specific type of legislation, did not come into common use until towards the end of the thirteenth century.1 It is true that at the beginning of the twelfth century it is found in a charter of Henry I, which speaks of ' nova statuta mea de iudiciis sive de placitis latronum et falsorum monetariorum,' where the word is used in what appears to be its modern sense,3 but thereafter it seems to have been but rarely employed in England for a hundred and fifty years. In 1233, when the king is writing to Ireland forbidding the hearing in courts Christian of pleas concerning advowsons or lay fee or chattels, it is said that the justiciar will punish offenders according to the ' statuta curie nostre in Anglia,' but this can mean no more than the established practice of the king's court.3 Similarly in 1244 there is mention of the ' leges et statuta' of the exchequer,4 but this phrase is a synonym for the more frequent ' assize ' or ' assizes' of the exchequer, and means no more than the established regulations.5 In 1236, however, legislation

S

1 ' Statutum ' was not used as a substantive in classical Latin. It occurs, however, in the modern sense in an edict of Diocletian de Pretiis Rerum Venalium (Corpus Inscr. Lat., Ill, pt. 2, 826), and in a parallel sense in Lactantius and Jerome, e.g. ' statuta Dei,' ' statuta episcoporum.' Such documents as Diocletian's edict were not, of course, available in the Middle Ages, and it was presumably from some patristic source that the word passed into medieval legal terminology. It is used, for example, by Bede (Historia Ecclesiastica, ed. Plummer, pp. 189, 214, 345). 2 Historians of the Church of York (Bolls Series), III, 22; Farrer, Early Yorkshire Charters, I, 81. 3 Early Statutes of Ireland, pp. 24-5, from Patent Eoll 18 Hen. Ill, m. 17. Note that the phrase ' statute of king John ' in Calendar of Patent Rolls, 1232-47, p. 31, is not warranted by the original. ' E. 368/15 (L.T.B. Mem. Eoll 28 Hen. Ill), m. 11 : ' secundum leges et statnta scaccarii nostri.' 5 Ibid. m. 12 : ' secundum consuetudinem regni nostri et assisam scaccarii ; E. 159/15 (K.E.'Mem. Eoll 21 Hen. Ill), m. 17 : ' secundum assisam scaccarii '; E. 150/17 (23 Hen. Ill), m. 12
XXV 2

The Early Statutes.

against forestalling by the Londoners is called, in two successive entries on the close roll, 0 an assize and 'hoc statutum regis,' and in 1253 the Sentencia Excommunicacionis lata in transffressores Cartarum refers to those who promulgate and maintain ' statuta ' against the liberties of the Church and the ancient and approved customs of the realm especially as contained in the charters, those who write such statutes and those who put them into execution.7 Yet Bracton did not employ the word," whence it would seem that in his time ' statute ' formed no part of the familiar speech of lawyers, and it is a commonplace that enactments which are inchided among the early statutes often bore some other name, such as ' provisions ' or ' etablissements.' 9 Statutum was, however, equated with provisio and ordinacio in the Provisions of Marlborough 10 and in a statute of the Jewry of 1271.u In the early years of the reign of Edward I it must have become a common word upon lawyers' lips and, a certain sign of its popularity, it was beginning to be applied retrospectively. One litigant in 1277 evidently referred to the ' Statute of Merton' in his pleadings, although the clerks of the Court got it down as ' Marlborough,' " and, later, men could talk of the ' Statutes of Oxford ' " and even ' Close Rolls, 1234-37, p. 512. 7 Statutes of tile Realm, I, 6. 8 He refers to the ' provisiones apud Merton'' (De Legibus, to. 96), and to the nova constitutio, which is the official description to be found on the close roll (ibid. to. 312b; Bracton's Note Book, III, 662, 713; Close Rolls, 1234-7, p. 337). Gjacia is probably not intended as a technical term (De Legibus, to. 96; Note Book, III, 362). * First Statute of Westminster, ' establisemenz ' (Statutes of the Realm, I, 26); Statute de Bit/amis, ' constituciones ' (ibid. pp. 42-3); Statute of Gloucester, 'estatutz, ordeiuemenz e purveaunces ' (ibid. p. 45); Statutes of Acton Burnel and of Merchants, ' ordeinement e establisement' (ibid. pp. 54, 100); Statute of 10Money, ' articles ' (ibid. p. 131), ' etablisaement ' (p. 134). ' Provisum est et statutum et concorditer ordinatum ut . . . provisiones, ordinaciones et statuta subscripta . . . observentur' (Statutes of the Realm, 1, 1119). Foedera, I, 4.89; cf. G-. J. Turner, 'Some Thirteenth Century Statutes' in Law Magazine, Fourth Series, XXI, 310. In the writ sending the First Statute of Westminster to the sheriffs it is called, not ' establisemenz,' but ' provisiones et statuta ' (Statutes of the Realm, I, 39). Elsewhere ' statut' is equated with ' ordeinement e establisement' (ibid. p. 100) and ' statutum,' ' estatut ' and ' establissement' are regarded as synonyms (ibid. pp. 134, 177, 179, 180-1). In 1324 the statute de Tern's Templanorum is called ' concordia, ordinacio, provisio, statutum et assignacio ' (ibid. p. 196). 13 Coram Eege Boll, Mich. 5-6 Edw. I (K.B. 27/33), m. 9 : quod liceat bene cuilibet domino secundum statutum de Merleberge approwyare ae de waatis et assartis suis saluis tenentibus suis sufficient! comuna et libero ingressu et egressu ad eandem. There is nothing of this in the Statute of Marlborough and the reference is obviously to chapter 4 of the Statute of Merton. The duplicate roll {K.B. 27/3-1) makes the same mistake. It is evident from chapter 46 of the second Statute of Westminster that the title ' Statute of Merton ' had by 1285 passed into general use. 13 Bart. Cotton, Historia, p. 143. The reference is to what we now know as the Provisions of Westminster.

The Early Statutes.

XXV 3

of the 'Statute of Bunnymede.' 14 When English clerks were making lists of Scottish muniments in 1291 and 1292 they could speak of ' unus rotulus de antiquis statutis Scocie ' and even of a roll ' de statutis regis Malcolmi et regis Dauid,' which was perhaps the same parchment. A more intelligible classification is suggested by the description of two other rolls ' de legibus et assisis regni Scocie et de legibus et consuetudinibus burgorum Scocie et de quibusdam statutis editis per reges Scocie.' 1S It is indeed probable that a distinction was beginning to be drawn between the half-remembered ancient compilations of laws and the assizes that had been the chief legislative achievement of the twelfth century on the one hand, and on the other, the modern enactments which in a special way represented established law. If we were to fix a dividing line between the old conception of legislation and the new, we shotild, without much hesitation, draw it at 1258, the year of the parliament of Oxford. There had been much miscellaneous law-making earlier in thecentury l c ; but no one had collected these enactments systematically, and when they were remembered, they were remembered indistinctly and imperfectly. The sole record might be a new form of writ entered upon the close roll with no preamble and no indication of the circumstances in which it came to be devised nor of the place or date of the meeting at which it was settled.17 While it is probable that changes in the law of obvious importance were always surrounded with a certain amount of formality,18 in some cases a new writ 14 This, however, is late in Edward Ill's reign, in the table prefixed to the Exchequer collection of statutes known as Liber X, as to which see below, p. 50. 15 Acts of the Parliaments of Scotland, I, 15, 112, 114-7. It should perhaps be noted that in later compilations the surviving legislation of king David was called his ' assizes.' 10 Cf. G. B. Adams, Council and Courts in Anglo-Norman England, pp. 324 ff.; Pollock & Maitland, History of English Law, I, 180; Holdsworth, History of English Law, II, 220-1. " A model writ will be found on the dorse of m. 17 of the close roll of 9 John (Rot. Litt. Glaus., I, 1146). This may be compared with the form of writ, evidently devised at the council of Merton, which precedes the entry of the Provisions (Close Roll, 1234-7, p. 337). Similarly the change in the limitation of writs is noted among the entries of February 1237, but without date or explanatory narrative (ibid. pp. 520-1), although we know, from a reference in a Curia Hegis roll of Michaelmas 1238, that the occasion was the ' magnum concilium quod dominus rex tenuit ad festum sancti Hillarii duobus annis elapsis ' (K.B. 26/120, m. 16d). Enrolments of this kind are, however, quite unsystematic, nor have we any means of telling how many writs in the gradually expanding register were settled by the council, how many in the chancery, how many by the judges. In 1257 we hear of a writ ' formatum per Henricum de Bratton,' but the circumstances are not explained (Fine Roll, no. 54, m. 4). 18 We need hardly recall Grosseteste's well-known words on the point (Epistolae, p. 96). In 1244 the bishop of Carlisle demands judgment because the plaintiff's writ ' formatum sit sine communi assensu regni contra communem

XXV 4

The Early Statutes.

apparently passed into use and became part of the accepted law without any public notice. The essential thing was the form of writ or rule of law, not the formal expression of the authority behind it. The law in ' Glanville ' is largely the result of deliberate law-making, much of which must have been recorded at the time in writing; but the author of that treatise speaks of the laws of England, even those enforced in the king's court, as unwritten. 19 If he knew of any written records of the legal reforms of Henry II, he was unmindful of them 2 0 ; and this was an attitude that changed but slowly in the course of the thirteenth century. It was doubtless difficult to overlook the legislation that had been agreed to at Merton in 1236 : the rights that had been assured to widows and to landlords affected, in some way or other, every one of superior social status, and the limitation of usury in the case of minors affected many. No one who had heard these provisions declared in the county court would be likely to forget them or the circumstances in which they had been established.21 Yet very soon men began to credit to the council of Merton much that had been done elsewhere, so uncertain were the methods of law-giving, so imperfect its recording. Bracton confused the date of the council and ascribed to it legislation which assuredly belonged to other times and places.22 But from the work begun at Oxford in 1258 there formam.' It is a writ of right from which, contrary to custom, the names of the townships have been omitted. The Court decides in the bishop's favour (K.B. 26/133, m. 9; 134A, m. 12d). 19 Prologue : Leges namque Anglicanas, licet non scriptas, leges appellari non videatur absurdum. 20 As Maitland pointed out, he seems to have known of a written ordinance which established the grand assize (Glanville, II, c. 19; History of English Law, I, 147). 21 The actual legislation, with an explanatory preamble, was conveyed to the sheriffs in letters close on January 30, 1236 (Close Rolls, 1234-7, pp. 337-9). 22 See Bracton's Note Book, I, 104 ff. We have met three cases in Bracton's lifetime where the provision for changing the period of limitation in certain actions is ascribed to the council of Merton. The council at which this provision was made certainly met at Hilarytide 1237, and seems to have been held either at Westminster or Kennington (above, p. 3, n. 17; cf. Close Rolls, 1234-7, pp. 521-2, where other business transacted at this council is recorded). The cases in question are on the Curia Eegis Rolls of Easter, 1244 (K.B. 26/133, m. 6; 134A, m. 8d), Assize Roll no. 1183, m. lid (Trinity, 1255), and the Curia Regis Roll of Michaelmas, 1258 (K.B. 26/160, m. 18). Professor Woodbine has argued on palaeographical grounds that one mistake attributed to Bracton may be due to a copyist who, in the passage in the De Legibus citing the provision0 regarding dower from the Coram Rege roll, converted xx° modo into xviii (Law Quarterly Review, XXVI, 151-5; De Legibus, I, 137, II, 276). But the extracts from the roll of 20 Hen. Ill which appear in Bracton's Note Book (III, 152—188) do not include this or any of the provisions of 1236, while the extracts from the roll of the eighteenth year, although certainly not containing any legislation of 1236, do contain the garbled account of the council of 1234 (ibid. pp. 134-7). As to the palaeographical argument, since none of the manuscripts gives the correct date, 0it seems to be the most likely hypothesis that the original manuscript read xviij m° and that copyists, thinking this a case of

The Early Statutes.

XXV 5

issued legislation of a character and quality which, if it had any forerunner, could only be found in the Great Charter, and it is plain that the Provisions of Westminster and their permanent embodiment, the Provisions of Marlborough, supplied the model for the greater enactments of Edward I. Of all these, many copies were assuredly made as there had been of the great charters, 23 and they passed at once into circulation. The Provisions of Westminster, for example, were being cited in pleading in 1260,24 and all the major enactments of Edward I were cited in Court very speedily after their issue.25 If the precise machinery by which they became available to the legal profession and to the general public is still to some extent a matter of conjecture, 26 of the fact there can be no doubt. A list of enactments upon which litigants relied under Edward I is instructive: the Great Charter,27 the Statute of Merton, 28 the Dictum of Kenilworth, 29 the Statute of Marlborough,30 the ordinance ' de districtione Scaccarii,' 31 the first32 and second 33 Statutes of Westminster, the statute ' de Bigamis,' 34 the Statute of Gloucester,35 the Statute of Acton Burnel 3(i and the Statute of Merchants, 37 the Statute of Mortmain, 38 'Quia Emptores,' 39 'Quo Waranto,' 40 the Statute of Winchester,41 ' Circumspecte Agatis,' 42 ' De defensione iuris,' 43 dittography, dropped either the iij° or the m°. This will, in fact, better explain the variant readings. It is not easy to relieve Bracton of the charge of confusion. 23 E. L. Poole, ' The publication of great charters by the English kings ' in English Historical Review, XXVIII, 444 ff. 24 Trans. R. Hist. Soc., Fourth Series, V, 58. 25 Detailed references are given in the following notes. 20 We deal with this question below, pp. 22 ff. 27 K.B. 27/1, m. lid; 21, m. 4; 28, m. 20; 39, m. 3d; 63, m. 3; and frequently in later rolls : Year Books 30-31 Edward I, p. 233. 28 Above, p. 2, n. 12; K.B. 27/103, m. 21 (referring to cap. 4); 11, m. 32d (cap. 10); Year Books 20-21 Edward I, pp. 353, 461, 463; 21-22 Edward I, p. 63; 30-31 Edward I, p. 329. 29 Year Books 20-21 Edward I, p. 39; KB. 27/124, m. 42d. 30 K.B. 27/11, m. 21; 35, m. 14d; State Trials of Edward I (Camden Soc.), p. 2 ; Year Books 20-21 Edward I, p. 367; 21-22 Edward I, p. 27; 30-31 Edward I, p. 31. 31 K.B. 27/35, m. Ud. 32 K.B. 27/73, m. 19; Year Books 20-21 Edward I, p. 385. 33 K.B. 27/115, m. I d ; 125, mm. 23, 72; 131, m. 50; 138, m. 35, et passim. 34 Year Books 21-22 Edward I, p. 343. 35 K.B. 27/59, m. 5d; 73, m. 11; 154, m. 31; Year Books 20-21 Edward I, p. 31; 21-22 Edward I, pp. 309, 563. 36 K.B. 27/101, m. 4; 112, m. 11; 130, m. 44; 153, m. 22d; Year Books 32-33 Edward I, p. 441. 37 K.B. 27/187, m. 49; Year Books 34-35 Edward I, pp. 127, 293. 38 K.B. 27/175, m. 19; Year Books 20-21 Edward I, p. 265. 39 K.B. 27/138, m. 35; Year Books 20-21 Edward /, p. 257. 40 Year Books 30-31 Edward I, p. 225. 41 K.B. 27/136, m. 21d. 42 Year Books 30-31 Edward I, p. 479. 43 Year Books 32-33 Edward I, p. 407; 34-35 Edward I, p. 555.

XXV 6

The Early Statutes.

the Statute of Money, 44 ' De finibus levatis,' 45 ' De consultatione,' 46 and the statutes regarding conspiracy.47 This may not be a complete list—it has been compiled exclusively from the rolls of the king's bench and the year books of Edward I— but we are in no doubt that it is fully representative and that an examination of the records of the common bench would add very little, if anything, to it.48 Now the enactments included here are those that make up the substance of the various collections of statutes which have come down to us from the reign of Edward I or a little later. If we were to subtract the legislation in our list from any contemporary compilation, or even from the printed statute-book, the conflation of several sources, we should have little left that was of any significance to the practising lawyer; but we may be sure that the practising lawyer needed to have readily to his hand at least the enactments here represented. In what form then were the statutes collected? Fortunately we have some knowledge of the manner in which statutes were kept for reference in official circles. Let us turn first to the exchequer. Here there were two methods of entering documents for permanent record: they might be copied into a register or they might be entered upon the memoranda rolls of the two remembrancers. The latter method does not strike one as very convenient since, unless the date of any particular document were known, it might be difficult to find without a painful search. In point of fact the memoranda rolls do not seem to have been utilized for the purpose of recording statutes or similar instruments until the reign of Edward I: and in that reign we have noticed no others than the statute of the Jewry of 1275,49 the ordinacio facta in parliamento in 1293,50 the ordinacio facia per dominum regem de finibus religiosorum et aliorum recipiendis in scaccario, which in the printed Statute Book bears the title ' Ordinacio de Libertatibus Perquirendis,' in 1299,51 and in 1307 a statutum de forisfactura diuersarum rerum ad opus regis,52 of which we have more to say. KB. 27/163, m. 9; 171, m. 75d. KB. 27/188, m. 45; Year Books 30-31 Edward I, p. 261. KB. 27/139, m. 2; 146, m. 36d; Year Books 30-31 Edward I, p. 442. KB. 27/138, m. 34; 154, m. 11; 161, m. 25. There appears to be nothing in the plea rolls of the Exchequer of the Pleas to suggest that a wider range of statutes received notice in that Court : see Jenkinson & Fermoy, Select Cases in the Exchequer of Pleas (Selden Soc.), pp.49 cviii f. L.T.E. Mem. Eoll, E. 368/49, m. 4; Statutes of the Realm, I, 220. 50 E. 368/64, m. 26. Printed from the close roll by Ryley, Placita Parlamentaria, p. 459; see Gal. of Close Rolls, 1288-96, p. 289. 51 E. 368/70, m. 32d; Statutes of the Realm, I, 131. 52 E. 368/77, m. 56 : printed Appendix II. 44 45 46 47 48

The Early Statutes.

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Under Edward II writs were sent to the exchequer, as they were to the other courts, requiring the barons to enrol enactments of political importance.53 The act of indemnity in respect of the death of Gaveston was entered both on the memoranda rolls 54 and in the Red Book of the Exchequer.55 Thereafter the instructions of the king were apparently held to be satisfied if an instrument were entered in the Red Book and the practice of enrolling statutes—in the literal sense of enroll—appears to have ceased. In this way the statutes of Lincoln 56 and York 57 came to be entered in the Red Book alone. Further, in the fifteenth year of the reign, five instruments were directed to be enrolled, all of which have some claim to be termed statutes. These were the act of indemnity to those who had proceeded against the Despensers,58 the ' consideratio ' (as it was called) made against the Despensers,59 the judgment against Thomas Earl of Lancaster and his accomplices,60 the revocation of the exile of the Despensers,61 and finally the revocation of the Ordinances.62 None of these instruments can now be found in the Red Book, but, as we learn from a note in the memoranda rolls, the judgment against the Earl of Lancaster was so entered G3 and it may well be that all five were written on folios which have since been lost.64 The Red Book had already, before the reign of Edward II, been used for entering a few royal enactments and it contained copies—not all contemporary—of Magna Carta, the Sentencia Lata, the Leap Year ordinance, Bulletin Inst. Hist. Research, VI, 143. In both L.T.R. and K.R. Memoranda Rolls under the title ' Statutum ne quis occasionetur de morte P. de Gauaston' ' : E. 368/84, Mich. Recorda, m. 3; E. ss 159/87, m. 87. Red Book of the Exchequer, p. Ixxxi (no. 71); Statutes of the Realm, I, 169. 88 Red Book, p. cxxxviii (no. 258); Stat. Realm, I, 174; E. 368/86, m. 64; E. 159/89, m. 30. In this and the following instance the writ sending the statute to the exchequer, but not the statute itself, is entered on both the memoranda rolls. i7 Red Book, p. cxxxviii (no. 256); Stat. Realm, I, 177; E. 368/89, m. 84d; E. 58159/92, Hil. Brevia, m. 9. E. 368/92, m. 40d; E. 159/95, Mich. Brevia, m. I d ; Stat. Realm, I, 185-7. 59 E. 368/92, m. 4ld; E. 159/95, Mich. Brevia, m. 3; Stat. Realm, I, 181-4. 60 E. 368/92, m. 53; E. 159/95, Easter Brevia, m. 2; Foedera, II, 478. 61 E. 368/92, m. 55d; E. 159/95, Easter Brevia, m. 4d; Gal. of Close Rolls, 1318-23, pp. 541-6. 62 E. 159/97, Easter Brevia, m. 2d; note that although this writ is dated May 19, 1322, it was not entered until 1324 in the memoranda roll. Stat. Realm, I, 189. 63 Memorandum quod recordum et processus de quibus in isto breui fit mentio irrotulantur in Rubio Libro de Scaccario : this is a postea to the entry of the writ. 64 Cf. Red Book, p. Ixiii. Another document no longer to be found in the Red Book is a petition of Hugh of Audley in the Michaelmas parliament of 1318 and the reply thereto in the following Easter parliament, although a note in the memoranda rolls states that ' predicta petitio irrotulatur in Rubeo Libro Scaccarii': E. 368/89, m. 113d; E. 159/92, Trin. Brevia, m. IQd. For this petition see Cole, Documents, p. 49. 53 54

XXV 8

The Early Statutes.

the Provisions of Westminster and of Marlborough, and a small fragment of Edward I's legislation—part of the statute ' De Bigamis,' the Statute of Mortmain and the Statute of Khuddlan." There were, also, in the exchequer register known to us as the Liber A, copies of the Statutes of Gloucester, of Acton Burnel and of Westminster the Second.66 Quite possibly there were other registers not now extant, which contained similar entries, besides Liber X, of which we shall shortly speak and which seems to stand in a class by itself. But we have no reason to suppose that, at any rate as late as the end of the reign of Edward II, the enrolment or registration of statutes in the exchequer was anything but unsystematic. Besides copies to be found in registers and rolls there were, however, other copies of statutes on separate sheets of parchment to be found in the several departments of the exchequer. Bishop Stapledon's Calendar, for example, discloses that in 1323 there were in a leathern coffer in the treasury of the receipt copies of the Statute of Gloucester in Latin and French, with the explanations, the Statute of Merchants of 1285, the second Statute of Westminster, the statute de Finibus Levatis, the Sentencia Lata of 1253, the statute of Quia Emptores and the statute (or, as it is called, ordinance) of Quo Warranto of 1290: there was a further instrument in the same collection the identity of which is uncertain, but which seems to have been the ' manifesto,' as it has been called, issued by Edward I on August 12, 1297." Similar loose copies were to be found with the remembrancers. Thus we learn incidentally that the copy of the ' process' revoking the exile of the Despensers which had been sent to the barons of the exchequer was retained by the treasurer's remembrancer 68 ; and, under Edward III, the king's remembrancer kept a collection of statutes available for reference, which were deposited in a bag.69 Moreover, a number of separate copies of statutes survive endorsed with a note of their receipt in the exchequer. 70 6S Nos. 199, 146, 147, 157, 143, 208, 237, 215, 251; see Red Book of the Exchequer, pp. cv—cxxxvi. 68 E. 36/274, fo. 299 (Westminster), 3106 (Acton Burnel), 311b (Gloucester, Latin version), 315 (Gloucester, French version). 07 Antient Kalendars of the Exchequer, I, 82-3 : the doubtful instrument is the fifth article in the list (cf. Foedera, I, 872-3). The others, which we give in 65the order of the calendar, are easily identifiable by the Statutes of the Realm. E. 159/95, Easter Brevia, m. 4d; Memorandum quod processus de quo in isto breui fit mencio liberatus fuit rememoratori Thesaurarii xvij. die Mail et remanet in custodia eiusdem. 08 Exchequer Plea Eoll no. 68 (16 Edward III), m. 20 : viso statute predicto quod est in quadam baga de huiusmodi statutis in custodia rememoratoris regia. 70 The earliest we have discovered is B.M. Additional Ch. no. 6712, a copy of 1 Edw. Ill, St. 1, with an endorsement : Hoc statutum recepit Walterus de

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XXV 9

We have already mentioned Liber X and the analysis we give in Appendix I makes it unnecessary for us to speak of it at length here This volume eventually became the principal register of statutes in the exchequer, but it seems to have been hardly more than semi-official in origin, prepared perhaps for the use of Hugh of Cressingham when he was appointed treasurer of Scotland. It will be noticed that the original work did not include all the instruments in the nature of statutes to be found in the Red Book nor all those of a date not later than 1290 which were subsequently to be found in the treasury of receipt, 71 and that, while the statutes of Henry III precede those of Edward I, the collection is not entered in order of date. It will also be remarked that no serious attempt seems to have been made to get together a full collection of statutes when, in the middle of the fourteenth century, the original work was extended and supplemented. Let us now turn to the chancery. Here our earliest evidence for a collection of statutes is the first statute roll or ' Great Eoll •of the Statutes.' This roll, after having been treated with perhaps greater lespect than it altogether deserves, seems now in some danger of being dismissed as without any very certain authority*/ at all. ' Onlv^ when the distinction L[between administrative and legislative action] had become quite clear to the legal eye,' wrote Dr. Tout, ' did the chancery clerks begin to •draw up the so-called statute rolls, the first member of which contains the chief permanent laws of the three Edwards. . . . It is apparently a compilation of the period of its issue, though the hands are by no means all the same. But it is ludicrous to refer to it as containing " originals " or even " official records " of the laws thus conveniently assembled.' 7" These sentences Norwyco baro huius scaccarii xix. die Februarii anno secundo regis Edwardi tercii a conquestu per manus Johannis de Kynardeseye clerici predictum statutum hie liberantis. Two other examples will be found in Exch. Parliament and Council Proceedings, file 2, nos. 19 and 23. The former, a copy of Stat. 5 Edw. Ill, is endorsed : Hoc statuta (sic) liberatum fuit ad scaccarium xvij. die Decembris anno regni regis Edwardi tercii a conquestu quinto. The latter, a copy of 25 Edw. Ill, St. 2 and 3, is endorsed : Htmc rotulum de statutis cum breui de magno sigillo eidem rotulo tachiato liberauit hie Dauid de Wollore custos rotulorum cancellarie regis sub pede magni sigilli ipsius regis xviij. die Octobris anno regni regis Edwardi post conquestum xxvto. Other copies of statutes of Edward III, but without endorsement, are found in the same file, nos. '20, 24, 25, 26, 28; they probably were also sent from the chancery to the exchequer. 71 The Provisions of Westminster and the statute de Bigamis to be found in the Red Book are not included, nor the Statute of Merchants of 1285, Quia Emptores and the statute de Finibus Levatis mentioned in Stapledon's Calendar. The differences in texts between Liber X on the one hand and Liber A and the Ked Book on the other show that the former was compiled independently. " Chapters in Medieval Administrative History, III, 182, 183n.

XXV 10

The Early Statutes.

are taken from an elaborate argument, the purpose of which is to fit the history of English legislation ' to that process of definition and differentiation which is discernible in other aspects of institutional history ' " and which Dr. Tout thought he could distinguish in the middle years of Edward III. Upon this general thesis we need not comment. So far, however, as concerns the contentions in the sentences we have quoted, the weight of evidence lies heavily against them. Very few students, we imagine, now consult the original statute rolls, but it has been necessary for us to do so in connexion with our examination of parliamentary documents of the three Edwards. This had begun before Dr. Tout's volume appeared and our impression had been that all the entries in the first statute roll were roughly contemporary. We have since made a more minute examination of the roll and of related documents. While we were engaged upon this we discovered that a similar investigation had been made in 1804 by William Illingworth and that his report was to be found among the papers of the old Record Commission.74 This investigation was evidently connected with the edition of the Statutes of the Realm then in progress,75 and most of Illingworth's work on the first statute roll was embodied by the editors in the apparatus criticiis prefixed to their first volume, where it has been available for more than a century. It may be noted that, as the result of a prolonged and careful investigation, Illingworth arrived at a conclusion with which our own is in entire accord. As it exists, one or more membranes have been lost from the upper end of the roll, 76 and the earliest membrane is now number 47. Upon this and the following membranes to number 41 inclusive are written, apparently in two different hands, certain of the statutes from the Statute of Gloucester (1278) to the Statutum de illis qui debent poni in luratis et Assisis (1293). To this last statute, which seems not to have been written by the original scribe, there is appended, in the same handwriting, a note of a writ to the justiciar of Ireland of August 14, 1299.77 At some time it was decided to add to this section of the roll the so-called Statuta Civitatis LondoniChapters in Medieval Administrative History, III, p. 180. P.B.O. Transcripts 8/189. Illingworth was officially engaged in connexion with the Statutes of the Realm from 1806 (see Introduction, p. xv) and is stated to have transcribed much of the copy (D.N.B. s.v.). 70 With the contents of the missing membranes we deal later : p. 14, below. 77 Statutes of the Realm, I, 113. 73

74 73

The Early Statutes.

XXV 11

arum, a copy of which is supplied on a separate sheet of parchment by yet another hand, now stitched as a schedule to membrane 42. It is possible that the only statute written on the dorse of this section, namely, the Statute of Merchants of 1285 on membrane 46d, was an omission repaired by the original scribe: to this, we may note, there has been added a posted written in an unmistakable early fourteenth-century hand and dated September 3, 1311.78 The next section of the roll consists of three membranes, 40, 39 and 38, and contains the text of the charters as confirmed in 1297 and certain related documents. These are in a different hand from the writing on the preceding membranes and in a different style. At the foot of the dorse of membrane 38 there is the inscription: ' Magna Carta de libertatibus Anglie et de libertatibus foreste confirmata a Rege Edwardo anno regni sui vicesimo quinto.' 79 It would seem evident that the writer of this endorsement knew but one king Edward, and the hand of the enrolment is of the kind every student of the records associates with the late thirteenth century. Fortunately, the editors of the Statutes of the Realm thought well to include a facsimile of the beginning and conclusion of the enrolment,80 and there is no need for us to ask for assent to our own opinion. Our only comment is that the facsimile is rather too beautiful and robs the writing of such character as it possesses. Of its date there can be no question : no one, we believe, was writing such a hand in the chancery even a generation after 1297, and it is certainly quite impossible to attribute it to a late period of the reign of Edward III. It is evident, too, and this is a point of some importance, that these three membranes were once an independent enrolment. Membranes 37 and 36 bring us to the so-called Statutum, de Finibus Levatis and the Statute of Money: to the latter, copies of certain instruments dated August 23, 1299, consequent upon the statute, are appended, the whole of these membranes being written by one hand, but a different hand from any that shared in the writing of the earlier membranes. Now it should be remarked that on the dorse of the close roll of 27 Edward I there are embodied, in a writ of March 26, 1299, the articles relating to the forest contained in the Statutum de Finibus Levatis,*1 but the entry has been vacated and a note written in the margin Statutes of the Realm, I, p. 98 and note. * Ibid. p. 114 and note. °° Facing p. 114; this is reproduced also in more than one report of the Eecord Commissioners. 81 Cf. Calendar of Close Rolls, 1296—1302, p. 298. 78 T

XXV 12

The Early Statutes.

J

Vacatur, quia non fuenmt consignate set aliter in Eotulo de Statutis.' This note, we may observe, is not reproduced in the printed calendar, but it had already been cited literatim by the editors of the Statutes of the Realm.*2 In the light of this evidence it seems certain beyond conjecture that a roll, consisting of these first twelve membranes from 47 to 36 (together with some at the beginning, now lost) was being put together in the late summer of 1299, and that it already bore the name by which we know it. For this purpose use was made of existing material. It is possible that some of this material had been written as early as 1285 and ended with the Statute of Winchester. It would seem dubious, however, whether the additions to this portion of the roll were also made in 1285: the Statute of Merchants on the dorse is, it is true, of that year, but the Statuta Civitatis Londoniarum in the form in which they are entered on the schedule seem, from a reference to ' auditours des pleyntes,' to come from the year 1290.83 Be that as it may, it would seem that in August 1299, or soon after, some responsible person in the chancery took that portion, had it supplemented on the blank end of the parchment with one enactment of 1293 which happened to be easily available because a copy had recently been sent to Ireland, added the copy of the charters of 1297 which lay ready to hand, and then continued with the legislation of the current year. It would be an intolerable strain upon the reader's patience to continue to comment membrane by membrane upon the entries in this lengthy roll; two examples serving to establish the strict contemporaneity of the enrolments under Edward II will probably suffice. The act of indemnity for those proceeding against the Despensers is entered upon the dorse of membrane 33 : the same statute is enrolled on the second membrane of Exchequer Parliament Roll No. 24. The parliament roll is all in one hand and is undoubtedly contemporary 8 4 : the corresponding enrolment on the statute roll is in a very similar, quite possibly the same, hand, although it is written rather less carefully. No one collating the two could, we venture to think, come to any other conclusion than that the two entries, which " Introduction, p. xxxiv, n. 5. 13 Statutes of the Realm, I, 104. For the auditores querelarum in London, see State Trials of Edward I (Camden Soc.), pp. xxiv f., 79—80. It must be supposed that the statuta were first issued soon after the appointment of Ealf of Sandwich as keeper of the city on July 1, 1283 (Cal. of Patent Rolls, 12S1-92, p. 182). " For a description of this roll see Bulletin Inst. Hist. Research, VI, 152. It has no particular connexion with the exchequer and may well have been written by a chancery clerk.

The Early Statutes.

XXV 13

can be compared word for word, were written within a short time of each other. The entry on the statute roll has, however, been vacated and a note added in a different hand: ' Le dit acord e estatut ^est anenti e chauncele par force de un estatut qui se fit au parlement le Roi a Euervvyk a tres semaines de Pasch, Ian de son regne quinzime, le quel estatut est desuth escrit' (as in fact it is on the next membrane). 85 Can it be supposed that anyone but a contemporary would have vacated the entry and written the subsequent note of explanation? The second example is supplied by the patent roll of 15 Edward II where, after the long series of pardons for any acts committed against the two Despensers, entered on membrane 18, there is written this note: ' Totes les lettres dacquittance susescrites sont anentes e chaunceles par force de un Estatut qui se fit en parlement le Roy a Euerwyk a treis semeins de Pasch, Ian de son regne quinzime, le quel Estatut est enroulle en le Roulle destatutz en le mois de may Ian quinzime avant.' 8G The statute is, in fact, entered on the dorse of membrane 32 of the statute roll in a contemporary hand, and both it and the note on the patent roll are printed in the Statutes of the Realm.67 The conclusion we draw, and we submit that it is irrefutable, is that the entries OIL the first statute roll are contemporary from about the year 1299, when the roll was known by its present title, and that even some of the earlier entries may also be contemporary. But although, except for the earliest membranes, the entries are either strictly contemporary or little later in date than the original instruments, the roll does not for a good many years provide a collection of statutes in any sense complete or peculiarly authoritative. As the editors of the Statutes of the Realm pointed out, ' many instances of errors and deficiencies exist' in the versions of the early statutes to be found there.88 This will not appear strange if we suppose that the original purpose of the collection was no more than to serve the convenience of the clerks of the chancery. Our views, however, must to some extent be determined by what we can deduce regarding the contents of the missing membranes, and we therefore turn to discxiss the evidence on this point. Statutes of the Realm, I, 185 and note. Cf. Cat. of Patent Rolls, 1321-24, p. 20. " St. R. I, 187 and note b. The note is also printed in Parliamentary Writs II, ii, App. 168. " Statutes of the Realm, I, xxxi, n. 1. Reference is particularly made to thesecond Statute of Westminster, as to which see ibid. pp. 77, nn. 6—8; 85, n. 5. 55 80

XXV 14

The Early Statutes.

Two fourteenth-century manuscripts are available with texts «f the statutes purporting to have been collated with the statute roll. One of these (Cambridge University Library Mm. V. 19)S9 has lost its first twelve leaves, but we know that these contained Magnet Carta, the Carta df Foresta, the Sentencia Lata, the Provisions of Merton and the Statute of Marlborough. The other manuscript (Claudius D. II) begins with these instruments, and thereafter the two manuscripts provide to the end of the reign of Edward II a substantially identical text with notes of collation corresponding closely the one with the other. Mm. V. 19 appears to have been corrected by an examplar from which Claudius D. II was derived, and it is quite certain that the original lying behind these manuscripts was not derived from a transcript of the statute roll but from some independent collection: consequently we cannot say that there was nothing on the statute roll that is not in this collection, which omits, for example, the Staiuta Civitatis Londoniarum, as being presumably of local and not general interest. Unfortunately although, as we have said, the notes of collation in the two manuscripts correspond closely, there are certain differences. The first five entries in Claudius D. II are marked ' examinatur per rotulum,' but in the case of Mm. V. 19 we can be certain of no more than that two of these entries, the charters, were so marked. On the whole we are disposed to accept the evidence of Claudius D. II, which makes it highly probable that the first five entries at least were to be found on the missing membranes of the statute roll. 90 The text of the charters, however, is that A full description of this MS. will be found in the Catalogue, IV, 324-31. ° Mr. E. B. Graves made a comparison of the two manuscripts for the purpose of his valuable paper upon ' Circumspecte Agatis,' English Historical Review, XLIII, 9—11. He came to the conclusion that Claudius D. II was •derived from Mm. V. 19. This seems to us highly improbable. Mm. V. 19 is the work of several hands and it has had a complicated history, with which we .cannot deal here. But the harmonizing of its text with that of the statute roll appears to have been carried out at a late stage towards the end of the reign .of Edward III, c. 1365. Two points of difference we may note : Claudius D. II does not reproduce the marginal headings and glosses to certain of the statutes which are a notable feature of Mm. V. 19, nor are all the collation marks in the latter to be found in the former. The notes added to the table of contents of Mm. V. 19, to which Mr. Graves ascribed an independent value, represent two .attempts at collecting the collation marks in the text : these notes are plainly unreliable, since the Statute of Acton Burnel (which is marked at fo. 119b of the text examinatur per rotulum) is overlooked. This has a bearing upon the contents of the lost leaves of the manuscript : the notes in the table indicate that the charters had been collated with the roll, but contain no such indication in the case of the Sentencia Lata, the Provisions of Merton, or the Statute of Marlborough. Is this another case of oversight? It is almost certain that no mark of collation appeared against the Statute of Marlborough in the text, since the concluding portion remains in Mm. V. 19 and we should expect any such note to be placed at the end, where none is, in fact, to be found. There is, (however, no reason to rate the negative evidence of Mm. V. 19 higher than the 80 D

The Early Statutes.

XXV 15

of 1300, and since these do not appear upon the statute roll it is obvious that, if the first membranes of the roll contained the charters, the text must have been of some other date. What we imagine the collator found at the beginning of the statute roll was the charters in the text of 1225, which are embodied in the inspea-imus of 1300. If we have reasonable ground for concluding that the charters of 1225, the Sentencia Lata, the Provisions of Merton, and the Statute of Marlborough were originally to be found upon the roll, there is equally good ground for concluding that the first Statute of Westminster was omitted, for although this statute appears in Mm. V. 19 and Claudius D. II, there is no note of collation against the entry. A glance at the table in Appendix I will show, moreover, that a number of instruments which were included in the exchequer collection of statutes, not many years before the statute roll was being put together in the chancery, were omitted from the roll. Another noteworthy omission—from both collections—is Quid Emptores. The inference is inescapable that, so far at least as its earlier portions are concerned, the statute roll makes no attempt at completeness, and that certainly before 1299 its texts cannot be relied upon as strictly contemporary or authoritative. In a later section of this essay we hope to demonstrate that the original basis of the roll was not a collection of authentic texts preserved in the chancery but a private collection of statutes such as was circulating among the legal profession in the late thirteenth century. To this collection little was added from other sources, and even after 1299 those responsible for keeping the roll did not regard it as necessary to enter every statute upon it. If an instrument were already entered upon another chancery roll it would probably be regarded as a work of supererogation to duplicate the entry on the statute roll.91 But although there are omissions from the statute roll until the end of the reign of Edward III and even later, omissions positive evidence of Claudius D. II, although obviously where the two concur the evidence is more nearly conclusive. 1J1 One remarkable omission is that of the ' establissementz ' of 1322 which re-enacted the ' good points ' of the Ordinances of 1311—actually, in the original or a modified form, nos. 1, 2, 10, 18, 19, 26-7, 33, 35-6 (Rot. Parl. I, 456-7; Calendar of Close Rolls, 1318-23, pp. 557-8). These ' establishments ' were undoubtedly devised as a statute fj. C. Davies, Baronial Opposition to Edward II, pp. 492, 583; Calendar of Chancery Warrants, I. 531), but although the Revocation of the Ordinances is on the statute roll, this important supplementary legislation is not. Another omission is the Statute of the Staple of 1332, which is entered on the patent roll.

XXV 16

The Early Statutes,

which it is not always easy to explain, 92 the status of the roll gradually changed until it would be hard to deny it the right to be regarded as of peculiar authority. This change accompanied the transfer to the chancery of responsibility for recording the proceedings of parliament, 53 and the acquisition by parliament of a special responsibility for legislation. We may give as an illustration the record of the proceedings of the Midlent parliament of 1340. There is obviously the closest correspondence between Chancery Parliament Roll No. 7 and membranes. 23 to 20 of the statute roll. 91 The entries on the parliament roll to which we wish particularly to draw attention are printed oa p. 113 of the second volume of the Rotuli Parliamentorum.9''' Paragraphs 7 and 8 set out the arrangements for drafting the statute founded upon the petitions presented by the magnates and commons, and conclude ' Lequel estatut nostre seigneur le roi, par assent de touz en dit parlement esteantz, comanda de engrosser et ensealer et fermement garder par tut le roialme de Engleterre et lequel estatut comence " A Phonur de Dieu etc." ' This statute included ' les points et les articles qi sont perpetuels.' The other ' points' and ' articles ' which were of a temporary nature were to be put into letters patent commencing ' Edward etc. Sachetz qe come Prelatz, Countes etc.' Paragraph 9 refers to the letters patent of indemnity, as they are called, makingit clear that the crown of France which Edward III had recently assumed was distinct from that of England, and paragraph 10' refers to letters of indemnity granted to the magnates against their bonds for the observance of the marriage contract between the duke of Cornwall and Margaret of Brabant. There is then a note : ' Lesqueiix estatutz et lettres sont enroullez de poynt en poynt en le chauncellerie.' Paragraph 11 refers to thepetition of the clergy and continues: ' Et sur ceo estatut fait par assent de touz, qi comence en ceste manere " Edward etc. come en le primer article etc.," lequel estatut est enroullez come desuz.' It is clear, therefore, that the intention was that all these instruments should be enrolled in the chancery, and for " Notably the Statute of the Staple of 1353 and Stat. 47 Edw. III. A much later omission, which has been the subject of a good deal of misguided speculation, is the Statute against Heresy of 1406 (cf. Stubbs, Constitutional History (5th ed.), Ill, 371-2). It was, as the commons requested, enrolled on the parliament roll and held as a statute until the next parliament (Rot. Purl. III. 583-4); the proof that it was enforced—a fact that has been doubted—is afforded by a commission on the patent roll which expressly cites this statute (Ca/. of Patent Rolls, 1405-8, p. 352). " English Historical Review, XLVII, 194-5, 377 ff. "" Statutes of the Realm, I, 281—204. 55 The paragraph division is obviously incorrect, but we follow it since it makes reference easy to the printed text.

The Early Statutes.

XXV 17

all, except the letters of indemnity in respect of the prince's marriage contract, which were entered on the patent roll,98 the statute roll was selected.97 Obviously, when this stage was reached, the statute roll had a very high measure of authority. Equally significant is the fact that later in the century it was thought well to collate private collections of statutes with the roll. Let us now go back to the last decade of the thirteenth century, when, as we have seen, clerks both in the chancery and the exchequer were transcribing collections of statutes. They were not alone in this, for we have evidence that many such rolls or books were being written before the close of the century. A good indication of the type of book which was then circulating is furnished by the inventory of the property of Matthew of the Exchequer, who was convicted of felony in 1294. He possessed three law books, one containing ' magna carta regis Henrici et eciam forme placitandi,' another book ' de statutis abreviatis et ceteris statutis domini regis,' and a third containing ' carta de Runmede, magna carta, carta de foresta et statuta Westmonasterii, Sximma de Hengham et alia minuta.' /l From these descriptions, inadequate as they doubtless are, we recognize that Matthew's books were similar to many still extant, although most of our collections of early statutes come from a date after 1300. His ' liber de statutis abreviatis et ceteris statutis domini regis ' would appear to have been one strongly resembling— perhaps identical with—a collection which we know to have been in existence at the time, including Magna Carta, the Charter of the Forest, the Provisions of Merton, the Statute of Marlborough, the first Statute of Westminster, the Statute of Gloucester and the second Statute of Westminster. At the beginning of the collection there were prefixed the capitula, or chapter-headings, of these seven ' statutes.' To this collection other instruments were added from time to time, but the capitula were retained unchanged and without addition. A description of these capitula as 'statuta abbreviata ' would not be inappropriate, and in the text itself would be fcrand ' cetera statuta ' of king Edward. 2 30 Foedera, II, ii, 1122-3. The brief entry in Cal. of Patent Rolls, 1338-40, p. 510, LS inaccurate. " Statutes of the Realm, I, 281, 289, 292. 1 E. 368765 (L.T.R. Mem. Roll 22 Edw. I), m. 38; printed Law Quarterly Review, XXI, 399. * Copies of these capitula occur in the closely related Laud MS. no. 757 and Lansdowne Roll no. 11, and also twice in Liber Horn, fo. 1—4i> and fo. 10— 13b. These are all fourteenth-century manuscripts, but evidently based upon thirteenth-century exemplars. Both the Laud and Lansdowne MSS. include, besides the statutes analysed in the capitula, the Sentencia Lata and the

XXV 18

The Early Statutes.

It is easy to understand how, by a process of conflation and collation, such collections expanded and variant readings were introduced into the text. Nor is it difficult to detect the various stages of growth. In one collection made early in the reign of Edward II, the Liber Horn, the original versions of the texts of Magua Carta and the Charter of the Forest have been clumsily corrected to make them accord with the reissue of 1300.3 Now a remarkable feature of the original version of Magiia Carta in the Liber Horn is that the dating claiise reads ' Datum per mantis venerabilis patris Eicardi Dunelmensis episcopi apud sanctum Paulum London' sexto die Novembris anno regni nostri secundo,' 4 the text being apparently a conflation of the issues of 1217 and 1225. Such a version has previously been noted by Dr. Lawlor in a collection of early statutes in the Liber Niger of Christ Church, Dublin.5 It has not, we think, been remarked that the same version appears in other collections undoubtedly dating before 1300, notably in Liber X. 6 The fact that this version appears in an exchequer collection does not, however, constitute an additional argument in favour of its authenticity, which it would seem impossible to sustain.7 But wherever we find this version we have a certain indication of a textual relation between collections which may differ so widely in content as to appear to be independent. The alteration of the text of Magna Carta to make it conform with the reissue of 1300 deprives us of this clue in most texts written after that date, even although they are based upon a thirteenth-century collection : but another indication of relationship is provided by the text of the Provisions of Merton. Of the accretion of additional chapters to the original text of the legislation at Merton, as it is to be found upon the close roll, something has already been said: a good many variants may be found and their relationship is complicated. 8 The text which no-called Noui Articuli of 1300 (Statutes of the Realm, I, 136—141). The Lansdowne MS. is mutilated, but the Laud MS. contains in its later membranes ten further articles. Liber Horn is a much expanded and miscellaneous collection. We cannot, of course, be certain of this identification of the capitula with the statuta abbreviata: a contemporary abbreviation of early statutes is attributed to Hengham (Woodbine, Four Thirteenth Century Law Tracts, p. 4 n.). See also Law Quarterly Review, XXI, 395. 3 Guildhall Records Office, Liber Horn, fo. 21—26b. * All the other similar texts which we have eeen add ' cancellarii nostri ' after ' episcopi ' : these two words were presumably dropped in copying. 5 English Historical Review, XXII, 514-8. 0 Below, p. 50. Other copies are to be found in Additional MS. no. 11712 fo.1 5—9 and Camb. Univ. Lib. LI. iv. 18, fo. 8—11. See Professor Powicke's criticism in English Historical Review, XXIII, 232-5. 8 Above, p. 4. See also G. ,T. Turner in Law Magazine, XXII, 243-50. Nearly every possible combination of additional ' chapters ' can be found with

The Early Statutes.

XXV 19

was ultimately regarded as authoritative seems, however, to be associated, although by no means exclusively, with the imauthentic version of Magna Carta. It is this text of the Provisions of Merton which appears in Liber X and which, upon the evidence of Claudius D. II, may be presumed to have been on the missing membranes of the statute roll. In other collections of statutes other versions of Magna Carta are found and other versions of the Provisions of Merton. It would seem, therefore, that the convenience of assembling the principal statutes was recognized by more minds than one and that the men who made the collections were outside official circles or, at least, were not performing an official duty: they were perhaps practising lawyers who took their texts where they could and had no easy access to official enrolments. The later versions of the Provisions of Merton suggest that, somewhere about the middle of the reign of Henry III, the original text, as it appears on the close rolls and as it was communicated to the public through the sheriffs, was beginning to be annotated and expanded by several hands. It seems clear that the nucleus of the late thirteenth century collections of statutes was an expanded version of the Provisions of Merton—doubtless the most expanded each collector could find—together with the charters in one or other of their versions, more or less accurately reproduced. It was possibly the issue of the Provisions of Westminster that provided the impulse to assemble the principal legislative instruments regarded as being in force.9 Some compilers would add the Sentencia Lata (as an appendix to the charters), the Leap Year ordinance, the Dictum of Kenilworth.10 Then, as fresh legislation became available, the process of accretion would continue, obviously unequally according to the the close-roll text : the following examples will suffice. Julius D. VII, fo. 125b, gives the close-roll text only. Harl. 746, fo. 69—69f>, inverts the order of the close-roll text and. while adding the chapters as to bastardy and poaching, omits those relating to wards, limitation of actions and attorneys. Additional MS. 35179, fo. 84b—85, includes the chapters relating to wards, but omits those relating to bastardy, attorneys and poaching. At Malmesbury another version was known, which omitted the chapters relating to bastardy, attorneys and poaching, but added chapters relating to intestacy and forests (Malmesbury Cartulary (Rolls Series), I, 59—63). An additional chapter dealing with essoins has been added by a second hand in Liber Horn, fo. 276. 9 The Provisions of Westminster having been superseded by the Statute of Marlborough, most early collections contain the latter and not the former : in Camb. Univ. Lib. Mm. i. 27, fo. 69—75, the collection of enactments of Henry III appears, however, to have originally ended with the Provisions of Westminster, and the Statute of Marlborough is added (fo. 110) after the early legislation of Edward I. 10 Mm. i. 27, although containing the Sentencia Lata, does not include the Leap Year ordinance or the Dictum of Kenilworth. The last-named formed no part of the original collection in the Liber Horn, written apparently under Edward II, and has been added in another hand.

XXV 20

The Early Statutes.

opportunities or interests of each individual compiler. The transcription and collation of collections would introduce additional documents and fresh variants, even two versions of Magna Carta being sometimes found in one collection.11 It seems beyond a doubt that in the compilation both of the statute roll and of Liber X, one or other of the collections of statutes in circulation in legal circles served as a basis. That there was any thorough-going attempt at revision seems impossible. We have already drawn attention to the omission from Liber X of a number of important instruments which appealundoubtedly to have been available in the exchequer, but on the other hand the memoranda roll of 18 Edward I was drawn upon for one entry, and quite probably some other entries— notably the Statxite of Wales—were made direct from exchequer sources.12 The omissions from the statute roll are still more numerous, but the addition in cedilla of the Statuta Civitatis Londoniarum and the entry in dorso of the Statute of Merchants indicate that, while there was no systematic inquiry after material by which to supplement or correct the copy before the original scribe, certain instruments easily available in the chancery were added at an early stage in the history of the roll. Any question of deliberate selection may be ruled out: there can hardly be anything but mere chance in the inclusion of one series of byelaws for London and the exclusion of another series of royal etablissements for the city which were considered as equally important to be entered for permanent record among the city's memoranda. 11 We can more easily account for the omission of yet another series of byelaws of local application, the ' statuta per regem et consilium suum f acta in comitatu Westmorland' ' issued in .1280, for these are entered on the close roll 14 : and even much later, when under Edward III the statute roll was the recognized recipient of legislation, the duplication of an enrolment was not considered necessary and the fact that the Statutes of the Staple were on other chancery rolls was apparently sufficient reason for not entering them upon the statute roll.15 The compilation of a collection of statutes was then in the 11 As, for example, in one of the books belonging to Matthew of the Exchequer (above, p. 17) and in Liber X (below, p. 50). '-ls Below, pp. 49, 51-2. Munimenta Gildh. Land. I, 280—297 : the date of these etablissemenis must be c. 1285. For the Statuta Civitatin Londoniarum see ibid. II, 493. 14 Ryley, Placita Parlamentaria, pp. 443-4; Cal. Close Rolls, 1279-88, pp. 109—110. Cf. K.B. 27/57, m. 39d; Abbreviate Placitorum, p. 1996. 11 Cal. Patent Rolls, 1330-4, pp. 362-3: Statutes of the Realm, I, 332n. Both these enactments are entitled statutes in Liber X : below, p. 53.

The Early Statutes.

XXV 21

first place a matter of private enterprise, and since such collections were very largely for the convenience of lawyers it is not surprising that the earliest manuscripts frequently contain also legal tracts or a register of writs." At any time in the thirteenth century, all the works of reference the practical lawyer needed could be contained in one moderate-sized volume : and the state of the texts is explained if we recognize such a collection for what it is, as a vade mecum aiming at being inclusive, but with no high standard of accuracy and certainly making no contemporary claim to authority. The authority these texts command is the authority of tradition, 17 the tradition of the courts coming to accept without verification documents which—if it would be a hard saying to call them spurious—are certainly often garbled and mutilated. But this tradition was of gradual growth : there was a stage when the coxirts relied upon no statute book. This brings us to the question of the promulgation and publication of statutes. The business of law-making was, of •course, for the king and his council, and law-making in the council was a matter of discussion followed by written memoranda. The special circumstances of the constitutional struggle of 1258 and 1259 have left us with a series of documents from which we can construct the stages leading up to the Provisions of Westminster in their published form. 18 Although the preliminary drafts of later legislation have for the most part •disappeared, we can postulate minutes of the council, of a quite general character, as the ultimate basis, followed by the preparation of successive drafts until the final form was submitted for approval to a special meeting, which in most cases would be parliament but which would, in any event, be an afforced meeting of the council with strong representation of the magnates. This procedure doubtless continued to be substantially the same until the development of the common petition in the fourteenth century. These petitions were a haphazard gathering together of unrelated representations and requests, some involving no change in the law, some unacceptable to the king: these latter being abstracted, the typical statute of later medieval times followed closelv chapter by chapter the order " For some particulars see Woodbine, Four Thirteenth Century Law Tracts, pp. 1—2; Dunham, Radulphi de Hengnam Summae, pp. Ixxi ff. One of the books belonging to Matthew of the Exchequer was of this kind : above, p. 17. 17 Of. Holdsworth, History of English Law, II, 222-3, 429; Hale, History a] the Common Law (1820), pp. 14—20. 11 E. F. Jacob, Studies in the Period of Baronial Reform, pp. 71 f f . ; E. F. Treharne, Baronial Plan of Reform, pp. 133 ff., 158 ff.; Bulletin of John Rylands Library, XVII, 301-3, 314-5.

XXV 22

The Early Statutes.

and language of the articles in the petition, the whole being prefaced by a formal confirmation of the liberties of the Church and of Magna Carta and the Charter of the Forest, corresponding to the formal opening clauses of the petition. There were at the same time statutes—or, rather, ordinances—of another type, well ordered and well drafted, the expression of government policy and in the line of the traditions of the thirteenth century, of which good examples are afforded by the legislation relating to the staple and to wages. The task of drafting fell, normally at all events, upon the ministerial members of the council and especially the judges," and the final draft was passed to the chancery with instructions to issue it.20 Two courses were then open: the document as the chancery received it might be put into diplomatic form or it might be enclosed with a covering letter and sent to the appropriate ministers, who, if the legislation were of general application, would always include the sheriffs. 21 In either case the intention was that the contents should be read in open court and other public places and, further, that the document should be preserved for reference by local officials in the exercise of their duties and also, apparently, for the multiplication of copies.22 This procedure had been adopted from time immemorial for making known momentous changes in the law or the solemn confirmation of the liberties of the kingdom. It 19 Cf. Bulletin of John Rylands Library, XVII, 295-6, for the procedure under Henry III. year Books 32-33 Edward I, p. 429, 33-35 Edward I, pp. 83, 585, illustrate the active participation of the judges under Edward I. In July, 1322, the justices of the two benches were required to put into a statute the points of the Ordinances and other things agreed upon in the last parliament, but it is to be noted that previous to the parliament a preliminary draft had apparently been prepared by the council (Cal. of Chancery Warrants, I, 531; J. C. Davies, Baronial Opposition to Edward II. p. 583). The judges •were consulted when the statute was in preparation for transferring the Templar's lands to the Hospitallers (Rot. Parl. II, 41 (52)), and it was clearly the practice under Edward III to consult the judges and other learned members of the council in the preparation of statutes (ibid. II, 139 (23)). The procedure adopted in 1340 of referring the petitions of the commons to a mixed committee, including knights and burgesses, with a view to the preparation of a statute, appears to be exceptional, but it is to be noted that this committee included the treasurer and four judges (Rot. Parl. II, 113 (7); English Historical Review, XLVII, 387-8). A somewhat similar committee in 1344, but without representatives of the commons, included seven judges and six other ministers : the resulting ordinances are entered on the statute roll (Rot. Parl. II, 130-1; Statutes of the Realm, I, 300-1; English Historical Review, XLVII, 395). ao A very good example is furnished by the document of 1307 which we print in Appendix II. -' Statutes of the Realm I, 39, 126, 131-3, 147, 149, 153-4, 179, 190, 196, 261, 2652 et passim. - The only express instructions to this effect which we have noted were given in connexion with the first Statute of Westminster (Statutes of the Realm, I, 39). For a contemporary copy of the second Statute of Westminster, which may have been made locally in Bedfordshire, see Bulletin Inst. Hist. Research, XI, 60.

The Early Statutes.

XXV 23

was, for example, the procedure followed when the Conqueror separated the ecclesiastical courts from the communal courts.23 It was followed when the kings of England issxied their great charters,24 for communicating the new laws agreed upon at the council of Merton in 1236," for announcing the reforms following upon the parliament of Oxford in 1258,26 and for keeping in mind the first Statute of Westminster 27 and the provisions of Magna Carta and the Charter of the Forest after their last formal reissue in 1300.2S And when in 1327 a new type of statute was initiated, it was at the instance of the knights of the shire in parliament, who asked that the substance of the commons' petitions and the council's answers should be put in writing under the great seal, so that the sheriffs might cause proclamation to be made accordingly throughout their bailiwicks. 29 Not only were statutes of general application communicated formally to the sheriffs but also, as we should expect, to the justices. This had doubtless been done in the case of the legislation which is embodied in the Provisions of Merton and of other enactments of that period, 30 and we have evidence that 21 For this reason versions of the writ were made in both Latin and English and copies sent to every bishopric and shire or group of shires : cf. Liebermann, Gesetze der Angelsachsen, III, 274. 24 English Historical Review, XXVIII, 444-53. This procedure was followed, also, in Ireland : an early example occurs in 1228 when John's charter, requiring English law and customs to be observed in that land, was ordered to be proclaimed in every county (Close Rolls, 1227-31, p. 45). 25 Close Rolls, 1234-7, pp. 337-9. For a similar instance in February, 1234, see Close Rolls, 1231-4, p. 551 : this legielation appears, in truncated form, as c. 10 of the Provisions of Merton. 21 Treharne, Baronial Plan of Reform, pp. 119-20, gives full references. " Statutes of the Realm, I, 39. -"" Foedera, I, ii, 919. *' Rot. Parl. II, 10 (38), 12 (41); Statutes of the Realm, I, 255-7; see also Bulletin Inst. Hist. Research, IX, 13. We call this a new type of statute, but there were anticipations of it. The ' establissementz ' issued on the occasion of the Easter parliament, 1322, which re-enacted the ' good points ' of the Ordinances of 1311, were somewhat similar in form : they are enrolled on the close roil, although there is no indication of their transmission to the counties (Gal. of Close Rolls, 1318-23, pp. 557-8 : see also above, p. 15, n.). It is doubtful whether they are based upon a petition since they seem to proceed from instructions to the council issued in anticipation of the parliament (J. C. Davies, Baronial Opposition to Edward II, pp. 490, 583). We may compare, also, the articles presented at the Easter parliament of 1309 which, with the replies returned at the following parliament, are also entered on the close roll : the chancellor was directed to send them ' en covenable forme ' under the great seal to every county, and did so in the form of the ' Statute of Stamford' (Bulletin Inst. Hist. Research, IX, 8; Statutes of the Realm, I, 154-6). 30 The first five chapters, which appear upon the close roll, were communicated to the justices itinerant in Hampshire and Wiltshire (Close Rolls, 1234-7, p. 339) and presumably to the judges generally : Bracton cites a Coram Eege roll, though a wrong one, for chapter 2 (above, p. 4). The judges were certainly furnished with the legislation of 1237 relating to the limitation of writs, which is on the close roll (above, p. 3, n. 17) and was once on a Coram Kege roll (Bracton's Note Book, III, 230). Somewhat similar legislation of 1234 is on a Coram Eege roll (ibid. pp. 134-7; Trans. R. Hist. Soc., Fourth Series, V, 67-8).

XXV 24

The Early Statutes.

copies of the Statute of Marlborough were sent both to the sheriffs and to the justices itinerant, 31 with the intention, presumably, that proclamation should be made at the sessions of the eyre. Apart from occasional writs which have survived instructing the justices of the two benches and the barons of the exchequer that particular statutes should be read before them, 32 we know, from incidental references, that Mettingham, one of the justices of the common bench, did, in fact, announce the issue of the so-called ' Statutum de defensione Itiris,' 33 and that Hengham read in court the ' Statutum de Proteccionibus non allocandis.' 34 Prudence would dictate that copies once in the hands of the court or of the sheriff should be carefully kept for reference: and, although medieval officials were not always very prudent in this regard, it is at least true that the chief clerk of the common bench had in 1290 a hamper which contained the king's statutes,35 that three officers of the exchequer had similar collections in their custody in the early part of the fourteenth century, 36 and that at the same period the sealed statutes communicated to the city of London seem to have been carefully kept for reference." 51 C. 62/44, Liberate Eoll 52 Hen. Ill, m. 7 : payment in April, 1266, to Thomas of Wymondham of 4s. 7d. for parchment and 30 shillings expended for writing 30 pairs of statutes for thia purpose. The entry is mutilated, but there is 82a perfect copy among the Chancery Miscellanea, C. 47/34/1/22. Statutes of the Realm, I, 51, 130, 147, 181, 188. A number of these writs are entered on the Coram Eege rolls : e.g. K.B. 27/246, m. 20 (August 20 and 21, 1321); K.B. 27/257, m. 2ad (May 19, 1322: printed Abbreviated Placitorum, p. 348); K.B. 27/260, m. 18 (January 29, 1325). Others are entered on the memoranda rolls: e.g. E. 368/89, m. 84d (December 1, 1318); E. 368/92, mm 40d, 41d, 53, 55<J (August 20 and 21, 1321; May 6 and 10, 1322). A petition presented in the first year of Henry IV suggests that until a statute had been formally read in Court it was not recognized. The petitioner John Worship, late Sheriff of Bedford and Buckingham, complained that he had been unable to obtain certain allowances on his account ' par cause qe le dit estatut [Stat. 1 Hen. IV, c. 11] nestoit mie proclayme ne vewez en le dit escheker ne conuz al dit suppliant a terme de son accompte '; but ' depuis le dit estatut est venuz en le dit escheker et conuz,' and he therefore prays to be allowed the benefit of the statute (Council and Privy Seal E. 28/7). " Year Book 21-22 Edward I (Rolls Series), pp. 233-5; Statutes of the Realm, I, 110. "Liber Horn, fo. 107: ' Pronunciabatur in Curia per B. do Hengham'; Statutes of the Realm, I, 217 . " ' Vnum hanaparium in quo continentur statuta regie et littere episcopales ' : E. 368/61 (L.T.B. Mem. Eoll 18 Bdw. I), m. id; E. 159/63 (K.B. Mem. Eoll 3 18 Edw. I), m. 3d. " Above, p. 8. " This is evident from the notes of collation in Liber Horn against Magna Carta (above, p. 18), the first and second Statutes of Westminster, the Statute of Winchester, etc. Against the Statute of Stamford (Statutes of the Realm, I, 154-6) is the note : ' Isti articuli eunt in Gyldaula Londoniarum, sigillati cum sigillo magno domini regis ' (fo. 114—115b). There is evidence, too, of ' statuta eub magno sigillo domini regis ' being handed over by successive sheriffs of Hereford on October 26, 1278, and May 26, 1291 : but the reference to the ' littere patentes de dictis statutis conservandis,' which accompanied them, suggests that only the first Statute of Westminster is in question (B. 199/18/2, mm. 1, 3 : above, p. 22, n. 22).

The Early Statutes.

XXV 25

These sealed statutes—made, of course, by the score ss—were the authoritative text. Nothing is more certain than that the seal was the supreme test of the authenticity of a statute: the Courts repeatedly insisted upon it 3 9 and the certificate of the accuracy of a transcript was ' exaininatur per ceram.' 40 But if this regard for the sealed statute was still high in the middle of the fourteenth century, 41 it cannot often have been given a very practical form, for not even the most methodical of medieval clerks could have produced at will a sealed copy of every statute it might be desired to consult in court. Judges moreover, who had been apprentices in the later years of Edward I's reign must all have learnt their statutes and the groundwork of their law from the convenient, if not highly accurate, collections in book form which were everywhere available and were good enough for most purposes, good enough certainly to dispense with frequent verification, particularly if they had been collated with sealed texts. And when the statute roll had become a recognized source for authoritative texts, and when the certificate of verification was no longer 'examinatur per ceram' but ' examinatur per rotulum,' the reverence for the seal must have waned. 42 Still, for two or three generations, it was to the sealed statute that the Courts had resort when the authority of a legislative act was questioned. The sealed statute was, however, after all but a royal command, and for long it was a question whether it had higher authority than certain other royal commands. This was a problem which had to be faced in. the thirteenth and fourteenth centuries and which we must in turn face if we would understand what was a medieval statute and what its status. If, in order to give a pertinent illustration of contemporary theory, we cite first an Irish suitor by way of example, let it be borne in mind that Ireland was as much within the ambit of the common law of England as England was within the ambit of the law of the church of Rome. Among the charges brought in 1290 against Nicholas de Clere, treasurer of Ireland, was one that, after the county of 38 Sixty copies were made of the Statute of Marlborough (above, p. 24, n. 31). It is evident that for the normal distribution to the justices, sheriffs and other ministers, copies must have been made on the same scale in the case of every general statute. " Cf. Plucknett, Statutes and their Interpretation, pp. 11, 23, 104; Maxwell Lyte, Great Seal, p. 374. *° This is the usual note in Liber Horn. 41 Cf. Year Books 14 Edward III, p. 138n, 19 Edward III, p. 293. 42 Peter de la Mare appealed to a book of statutes in the Good Parliament ' issint qil ne purroit estre dedist' (Anonimalle Chronicle, p. 86 : but see p. 183).

XXV 26

The Early Statutes.

Tipperary had been granted at ferm to Roger of Pembroke on the same conditions as other sheriffs held it, Nicholas had refused to make any allowance in respect of certain customary receipts which the justiciar had disallowed to Roger but which the latter claimed had been part of the consideration when the ferm was fixed. Nicholas replied that if the sheriff were denied the benefit of such revenues either by statute or by order of the justiciar, neither the king nor Nicholas, as treasurer, was answerable. Upon this Roger's wife (who appeared for him) demanded judgment whether Nicholas could so excuse himself by colour of a statute or order of the justiciar against the express command of the king which, she alleged, had been notified in a writ from England/ 3 Here we have advanced, clearly enough, the principle that the king is not bound by statute if he gives express orders to the contrary. Nor should we dismiss this argument as a mere piece of ingenious pleading, for we find the justices in the Kentish eyre of 1313 upholding the identical doctrine on the ground that the same authority must be supposed to be behind both statute and writ, namely, the authority of the kingacting by common counsel of the realm. 44 The principle that a pre-existing statute cannot override the king's express command might well be held in an age which saw the king explaining, varying, delaying and abrogating statutes. Let its take some examples. The statute of Gloucester having been enacted on August 1, 1278, the king, on the advice of the justices, later issued a series of ' explanations ' supplementingcertain of the articles.42 The nova addicio at the end of these explanations evidently represents a further modification.46 Nor were these the only efforts to make the statute workable. Special provision had been made in the statute for foreign voucher in London, but the procedure as originally laid down was inconvenient, and the article was therefore re-drafted by the council and, on June 10, 1281, sent to the officers of the city with instructions that it should be observed ' iuxta correccionem illam.' 47 A remarkable instance of delaying the operation of a statute is afforded by the legislation against the transmission of money abroad by English religious houses. This had been enacted at the Lenten parliament of 1305, but the ' ordinances and " Cole, Documents illustrative of English History, pp. xxiii, xxv, xxix. " Eyre of Kent (Selden Soc.), I, 175-6; cf. Plucknett, Statutes and their Interpretation, p. 140. The same doctrine appears to have been held in London at this period, see below, p. 29, n. 61. " Statutes of the Realm, I, 50. " This is not found in all manuscript versions of the statute, e.g. Liber Horn, fo. 35, 49. " Statutes of the Realm, I, 52.

The Early Statutes.

XXV 27

statutes' were not brought into operation until they were re-enacted at the parliament of Carlisle two years later. 48 The abrogation of a statute by Edward III in 1341 has been regarded as an isolated act of bad. faith, belonging, as a recent commentator has put it, ' to the category of coups d'etat rather than of constitutional or legal science.' 49 But we suggest that the king could find no little justification in contemporary constitutional theory. The sincerity of the protests of the king's official advisers arid of his own explanations may be open to doubt, but this is a different issue from that which concerns us here, namely, whether, upon the grounds advanced on behalf of the king, his action could be justified. Let us, in the first instance, turn to Ireland for a precedent. At a parliament at Kilkenny at Candlemas, 1310, a statute had been enacted containing, among other articles, a provision that native Irishmen who had not been admitted to English law were not to be received into religious houses in those parts of the country subject to English rule 5 0 : shortly afterwards, the archbishop of Armagh and his official made representations to the justiciar, John Wogan, who thereupon consulted certain of the magnates and, at their request, revoked this provision. It is of importance to note the reason for revocation. The statute was made because the king—for all legislative and administrative action is taken in his name—believed that as a result there would be greater tranquillity and peace in the church and among the people, but the archbishop and his official assured him that rather than being to the advancement of peace, the statute had given rise to harm, hatred and discord.51 The public good, we might comment, was the overriding consideration, and to secure this the king's representative, after taking such counsel as he deemed sufficient, felt justified in superseding the provisions of a statute. We may learn something, too, from the tangled story of the exile of the Despensers. Three points seem clearly to emerge : that the judgment against them- which was embodied in an instrument included in contemporary collections of statutes 52 — did not receive the assent of the prelates, who had (as they afterwards declared) protested against it; that the statute giving indemnity to the pursuers of the Despensers was made against " Statutes of the Realm, I, pp. 151-2. " Plucknett, Statutes and their Interpretation, p. 144. s ° Early Statutes of Ireland, p. 272. 31 Trans. Kilkenny Archaeological Society, I, 509 : letters patent of May 22, 1310, from an uncalendared Irish patent roll, said to be of 16 Edward II. 52 Cf. Statutes of the Realm, I, 181 n.

XXV 28

The Early Statutes.

the Icing's will, as lie himself protested at the time in the presence of certain of the prelates, earls, barons and other magnates; and that the statute was held by the justices to be against reason, law and the custom of the realm and specifically against the provisions of .Magna Carta. On such grounds the statute was repealed and annulled; with the advice and assent of parliament, it is true—but we should not esteem unduly the need for parliamentary approval when the king's soul was in peril and when he was acting, as he said, ' de son poer real.' " That the matter was brought before parliament at all seems due to the insistence of bishop Stapledon, and even he did not insist upon the absolute necessity, but rather upon the prudence, of this course. In any case the decision was taken in anticipation of any parliamentary ratification.51 Now let us compare the action taken by Edward III and the reasons advanced for it. The chancellor, the treasurer and certain of the judges protested before the statute of 1341 was sealed that some of the articles were contrary to the laws and usages of the realm which they had sworn to observe.55 The king, so he said, dissembled and permitted the statute to be sealed, although it was contrary to the laws and customs of the realm and the rights and prerogatives of the crown, but later he took counsel with the magnates, who agreed that, since the statute had been issued against the king's free will, it was null and void. 56 The statute was therefore revoked and this revocation formally confirmed at a subsequent parliament, with the proviso that such of the articles as were consonant with law and reason should be re-enacted. 57 We may incidentally observe that the king's standpoint on this occasion corresponds very closely to that of certain petitioners in the parliament of November, 1330, who told a curious story of how, at the instance of the two Despensers, Edward II had consulted the judges as to whether he might grant the Templars' lands to the Hospitallers and how the judges advised that by law the king neither ought nor could do this, but nevertheless a statute was made " Cal. of Close Rolls, 1318-23, pp. 543-6; Foedera, II, 470; Statutes of the Realm, I, 187-8. " Register of Walter de Stapledon (ed. Hingeston-Randolph), pp. 441-4, which usefully supplements the authorities in the preceding note. The pope was consulted and his view was that ' dominus rex posset sua statuta rrmtare et revocare,' although the king could not annul his oath if he had taken one (Foedera, II, 543) : this opinion could not, however, have been given in time to influence the king's action (cf. Cal. of Papal Letters, 1304-4.2, p. 231). " Rot. Parl. II, 131. 56 Statutes of the Realm, I, 297; Foedera, II, 1177; Cal. of Close Rolls, 1341-43, p. 335. '" Rot. Parl. I I , 139-40.

The Early Statutes.

XXV 29

against law and against reason. To this the judges did not assent, nor could they do so unless the}* violated their oath, for the statute was to the disinheritance of the king and his people. Wherefore the king was asked to annul the statute. Let us note in passing, for the issue is really a separate one which we shall have shortly to consider, that the story is further complicated by an allegation that parliamentary assent was not obtained to the statute. 58 Upon the question we are immediately considering it is pertinent to note that Edward Ill's action in 1341 does not stand alone: it is in line with what he had done on previous occasions. In June, 1333, the king had revoked the ' ordinance ' made at the recent parliament levying an additional export duty on wool and hides, on this occasion acting with the assent of the council and of the merchants. 59 Again, in July, 1337, he had suspended the application to the county and city of Chester of a statute passed two years previously granting freedom of trade to merchants G °: the statute had already been annulled, with the authority of parliament, so far as London was concerned, on the ground that it conflicted with the liberties secured to the city by Magna Carta, 61 but it was not thought necessary, apparently, to seek parliamentary authority in the case of Chester where the liberties of the earl were involved. The interposition of the king to prevent the application of a statute, from however good a motive or with whatever legal justification, could not be without inconvenience. The formality of statute-making appeared to require an equal formality in the rescission or variation of a statute,63 and the Courts would look askance at any attempt to evade the provisions of a statute if the " Rot. Parl. II, 41-2. Cf. Statutes of the Realm, I, 194-6. " Cal. of Close Rolls, 1333-37, p. 60. -° Cal. of Close Rolls, 1337-39, p. 141; Statutes of the Realm, I, 270-1. " Cal. Letter Book F, pp. 8, 9, 14,. 15. The city claimed that its liberties should override a statute. For example, against the entry of the statute of Mortmain in the Liber Horn there is the note ' Istud statutum non observetur in Londonia quia data carta libertatum eius est de anno Edwardi filii Edwardi (sic: xxvij." Here the assumption is that the charter of April 17, 1299 (Cal. of Charter Rolls, II, 477-8) had in effect annulled the statute. But it ie further suggested that the statute was issued in the period 1285—1298 while the liberties of the city were in the king's hands, for it is also stated in the Liber Horn that the statute was ' ordinatum anno domini mcclxxxv et anno E. filii H. regis Anglorum xiij,' the actual date being, of course, 1279. °- We get at least a hint of this when Edward I is reported to have told the clergy, in reply to their request that the Statute of Mortmain should be rescinded, that ' illud statutum de consilio magnatum fuerat editum et ordinatum et ideO' absque eorum consilio non erat revocandum ' (Hemingburgh, Chronicon, II, 57). If the king actually used such words they may have been no more than an excuse, but they are the converse of Grosseteste's statement that it was not possible ' sine principis et magnatum consilio leges condere vel commutare ' (Epistolae, p. 06).

XXV 30

The Early Statutes.

litigant could not produce evidence in the form of an instrument under the Icing's seal. Let us, by way of illustration, follow for a further stage the history of the Statute of Gloucester and of the Statute of Kilkenny of 1310. We have seen how the former statute was corrected in 1281 in the interests of the Londoners. Thirty-five years later the justices of the common bench were, or affected to be, ignorant of the correction and declined to act upon it. After a good deal of anxiety and perturbation among the city authorities, the justices were at length provided with an official copy drawn not, it may be remarked, from any roll of the chancery or the two benches—for nothing was found on them—but from, a record of proceedings before Elias of Beckingham in November, 1290, sealed with his seal.63 The revocation of the Statute of Kilkenny, in so far as it related to the refusal to native Irishmen of admission to religious houses, was apparently unquestioned for twenty-five years or more, but John Ellerker, who became treasurer of Ireland in June, 1335," contended that the original provision had been revived by reason of a later ordinance which required all ordinances made in the land of Ireland to be kept/5 and he therefore included this article when the statute was republished. The practical result was to revive the controversy which the original legislation had fomented, and a petition was presented to the king by ' the religious of Ireland ' at the parliament at Westminster in March, 1337, asking him to grant their request that Irish born in ' the land of peace ' and faithful to him might be treated on an equality with the English. The legal issue as to whether or not the Statute of Kilkenny was in force in its entirety was not directly determined, but the king gave instructions that faithful Irish should be admitted to religious houses notwithstanding any ordinance or prohibition to the contrary.cc This latter case is complicated by reason of the right of petition to the king himself over the head of the Irish justiciar, but it does bring out the uncertainty which was beginning to be felt as to amendments of statutes which did not take the form of parliamentary enactments, although clearly enough no one " Mtmimenta GUdh. Land., II, 169—179; Cal. Letter Book A., p. 212. " He was treasurer from June 8, 1335, to October 15, 1337. " The reference appears to be to the statute enacted at the parliament of Kilkenny in July, 1325 : it mentions specifically the ' ordinances and statutes ' of 1310 (Early Statutes of Ireland, pp. 310, 312). " Ancient Petition no. 13006, printed Trans. Kilkenny Archaeological Sac., I, £11; Foedera, II, ii, 964.

The Early Statutes.

XXV 31

questioned the capacity of the king to issue direct instructions regarding the subject-matter; and here, although the matter was an Irish one and it was treated in an English parliament, there could be no doubt that the final decision had been taken (in the language of the justices of the Kentish eyre) by common counsel of the realm. It was apparently a few years earlier that, on the representation of the bishop of Durham that his chancery should be authorized to issue such writs as ael, besael and formedon, the council had advised that a change in the law could not be made except with the assent of the king and of the prelates, earls, barons and other magnates of the land in parliament, 67 and this principle comes more and more into prominence. The revocation of the statute of 134.1, decided upon after consultation with a select body of magnates, was, upon the protest by the commons, submitted for parliamentary sanction in 1343, although the king plainly reserved the right to review and amend statutes.68 But the suspension of a statute was not lightly to be undertaken. The Londoners, who had obtained without difficulty and with parliamentary approval the abrogation of the statute of 1335 granting merchants freedom of trade, found it impossible to secure relief when the statute was confirmed in 1351, despite their appeal to Magna Carta and their own charters.69 The same issue is behind the insistence of the great council of September, 1353, that parliamentary approval should be given to the ordinances of the Staple made on that occasion, an attitude which seems definitely to have decided that parliament and no less formal embodiment of the common council of the realm should be the supreme legislating authority. 70 The issue of parliamentary authority was raised in another form when, at the end of 1355, the chancellor and the treasurer were instructed to obtain the opinion of the judges and other learned members of the council regarding the proposed seizure of the temporalities of the bishop of Ely.71 Their advice was that, in view of the statute passed in 1340, which provided expressly that the king could not seize temporalities without due process of law,72 and since judgment had not been passed against the bishop in parliament, the suggested action would contravene the statute, " English Historical Review, XLVII, 387, n. 4. " Rot. Parl, II, 139-40. " Cat. Letter Book F, p. 229; Gal. Letter Book G, pp. 14-5, 52. 70 Bulletin Inst. Hist. Research, VIII, 74. " B. Wilkinson, ' A letter of Edward III to his Chancellor and Treasurer ' in Enqlish Historical Review, XLII, 248-51. "• Statides of the Realm, I, 294

XXV 32

The Early' Statutes.

which could be neither annulled nor varied without parliament." The king certainly stayed his hand, but the issue cannot have been brought before the parliament, for six months and more before the next parliament met the temporalities were seized.74 The cases we have cited seem to establish two important principles. The first principle is that statutes must be consonant with the laws and customs of the realm, of which not only the king is guardian but also the king's ministers, by reason of the oaths they have sworn to maintain them. These laws and customs are in a special way embodied in Magna Carta, the infraction of which automatically involves excommunication: but the charter does not embrace the whole of the laws and customs of the realm. There are, for example, the king's own prerogatives, to which he is likely to attach equal importance. The second principle is established when men begin to face the question, who then is to determine whether or not a statute conflicts with the laws and customs of the realm? The judges' opinion will obviously carry great weight: but can the king, upon the mere advice of his ministers, reverse legislation which has been enacted by common counsel of the realm ? By a natural evolution of ideas, it comes to be held that the same authority and the same assent are required for the reversal of legislation as are required for its promulgation. Undoubtedly the establishment of this principle was not unaffected by the parallel development of the conception of parliament as the supreme judicial authority, 7 " and, in truth, judicial authority and legislative authority are but two facets of law-giving, and in the Middle Ages the one may be said to imply the other. The journey by which men arrived at this principle was a '* Chanc. Parl. and Council Proc. 67/5. This opinion is of sufficient historical importance to be given in full : Auye est a touz les iustices nostre seignur le roi del vri baunk et del autre et a touz les barouns del eschekere et a touz les sergeauntz nostre seignur le roi qe les temporaltez le euesqe Dely ne sount pas a seiser a ore en la mayn nostre seignur le roi, pur ceo qe il y aueit vn estatut fait en temps nostre seignur le roi qore est, cest a eanoir a soun parlement tenuz a Westmouster Ian de soun regne quatoszisme (sic), en quel estatut expressement est contennz qe nostre seignur le roi ne fra seiser les temporaltez de erceuesqee, euesqes, abbes, priours ne de autres quecumqes, gaunz verrez et iouste cause solonc ley de la terre et iugement sur cele done, et deuere le dit euesqe Dely mil iugement fuyst rendu en parlement de ceo qil countredit les paroles queux nostre seignur le roi ly surmyt en le dit parlement, par qi a seisir ses temporaltees en ceo cas serroit expressement encountre le dit estatut, Icquel estatut ne peust estre defait ne chaunge sanz parlement. Endorsed : Lauis de iustices tochant leuesque Dely. 74 The king's letter to the chancellor and the treasurer was -written on December 30, 1355, and the opinion of the judges was presumably gfven early in 135C. There was no parliament in that year nor until April 17, 1357. The temporalities had been seized by October 5, 1356 (Cal~, of Close Rolls, 1354-60, p. 392), and the bishop had left England on November 19 following (Anglia, Sacra, I, 660). " Bulletin Inst. Hist. Research, VI, 72; IX, 6.

The Early Statutes.

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slow one and in the process it became necessary to adapt legal terminology to the new situation. As we have seen, in the thirteenth century a legislative instrument could be described by a number of terms which were seemingly regarded as synonyms, but the two with which we are concerned are ordinance and statute. In Appendix II we print certain legislation of .1307 for amending the Statute of Money of 1299 : this ordinance, which the king wills shall be fixed and established as his statute for ever, is required to be entered as a statute in the exchequer, the chancery and the wardrobe, and writs are sent to all port officials containing full details of this ordinance with instructions that they are to observe and execute the ordinance in every article. 70 Here there is clearly some difference of meaning between the two terms: there might be ordinances which were not statutes, and the mark of a statute was that it should be fixed and established for ever. 77 From this point we may trace briefly the history of the two terms, recalling by the way that a few weeks before this amending Statute of Money had been issued, the ' ordinances and statutes ' of Carlisle had been promulgated. rs To the legislation of the parliament of York of 1318 the name of ' establishments and statutes ' is given, 79 and again in 1322, when the Ordinances—of the ordainers, be it noted, and not of the king—were revoked, it was provided that the ' statutes and establishments ' duly made by the king and his ancestors prior to those ordinances should remain in force. 80 At this same parliament there were also issued the ' establissementz '—called ' confirmaciones et ordiuaciones ' in the rubric and ' estatut' elsewhere—which are entered on the close roll but not on the "' Below, i>. 55. " It has been remarked in this connexion that in the later years of the thirteenth century regulations for the king's household are termed statutes (Tout, Chapters in Administrative History, II, 49 n.; Ill, 182 n.) while in the fourteenth century such regulations are termed ordinances (ibid. Ill, 144; Foedera, II, ii, 3049-50). But we find ' ordenement ' or ' ordenances del hostel ' in 1279 (Tout, Chapters, II, 158, 163) and ' ordinaciones et statuta ' in 1310 (ibid. p. 249). E-obert Houel who had been appointed to the offices of clerk of the market and coroner of the household from Michaelmas, 1329 (Cal. of Patent Rolls, 13S7-30, p. 380), some few years later says that these two offices ' deyvent estre servi par line persons solom lestatut del houstiel ' (Ancient Petition no. 2617). All this has very little, if any, bearing on the use of these terms for legislation : both terms are, of course, widely used with many connotations. It may be noted that the household ordinances of 1318 are so called because they were, ' ordained ' by the principal household officers : these ordinances were subsequently read and approved at a meeting of the council at which the king was present, but this did not involve any change in nomenclature (Tout, Place of th-e Reiqn of Edward II, p. 270). 78 Above, p. 27 ; Statutes of the Realm, I, 152. : " Statutes of the Realm, I'. 177. •'" Ibid. I, IS'.).

XXV 34

The Early Statutes.

statute roll. 81 In 1324 the legislation dealing with the lands of the Templars is termed ' concordia, ordinacio, provisio, statutum et assignacio ': although this legislation -was of an unusual character, its five-fold description looks like mere wordiness, but we do not think the word statiitum was lightly used. 82 At the parliament of Northampton in 1328, besides the legislation which is found on the statute roll, there was a minor supplementary enactment which was deliberately not included in the statute but sent as an instruction to the chancerv in the form of a 'bill.' The reason was, apparently, that its purpose was to rectify the position created by the issue of commissions of oyer and terminer in contravention of the statute of 1299, a practice forbidden for the future by the new statute, and that the saving for certain specific commissions was of a temporary nature. 83 But in any case we seem clearly to be a step forward in defining a statute: legislation of a permanent nature falls into this category; temporary or transitory provisions fall outside it, but for such there is no regular and settled form or name. Thus in 1340 a distinction is made between the ' points and articles ' which are to be perpetual and those that are not, the former being embodied in statutes and the latter in letters patent. 81 Similarly in 1341 the ' points ' in the petitions of the magnates and commons in so far as they are to endure are to be put into a statute, the rest in a charter or patent which the knights of the shire can take home with them.85 Again in 1344 it is asked that the ' provisions, ordinances and accords ' made the previous year against papal exactions may be ' affermez par estatut perpetuel a durer.' 86 And, one final example, in 1363 the chancellor asks the commons whether they wish sumptuary legislation to take the form of ordinance or of statute, who reply that it would be well to proceed by way of ordinance which might be amended in the nest parliament in case of need. 87 We must not, however, suppose that we can simply divide legislation into the two classes of statutes and ordinances: a statute is still an ordinance. The technical name throughout the Middle Ages for a series of legislative enactments, which is now, and was at the time, known in common parlance as a 11 Rot. Parl. I, 456-7; Co/, of Close Rolls, 1318-23, pp. 557-8; Co!, oj Chancery Warrants, I, 531; ,T. C. Davies, Baronial Opposition to Edward II, p. 583; above, p. 15, n. 91. 'Statutes oj the Realm, I, 196 n. s3 Below, p. 54: cf. Rot. Parl. II, 28 (52); Statutes of the Realm, I, 257-8. 81 Rot. Parl II, 113; above, p. 16. «= Ibid. II, 133 (61) : cf. Statutes of the Realm, I, 297-8. " Rot. Parl. II, 153 (33). Cf. ibid. pp. 144-5. 87 Ibid. II, 280 (39).

The Early Statutes.

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statute, seems to be ' ordinances and statutes,' 88 although under Richard II the title ' establishments ' is revived, as a synonym apparently for statute, and we therefore sometimes find the phrase ' ordenances et establissementz,' 89 and sometimes statutum or statuta stands by itself. 90 Nor does it appear as though the term ' ordinance,' when employed without qualification, is limited to temporary or transitory legislation. A statute, as we would term it, may contain tentative legislation, as in 1383 when an article, placing upon mainpernors the responsibility for any loss caused to plaintiffs by the absence of defendants who have been mainprised, is expressly limited to the period before the next parliament, during which time ' ceste ordinance ' is to be ' en assaie '—a clear instance of the use of the word for temporary legislation.91 Ordinance was, however, also regularly applied under Edward III to special classes of legislation not called statutes but certainly, as it would seem, intended to be more than temporary provisions. Legislation affecting the clergy and clerical privileges,92 the staple,93 the fisheries,94 are the principal examples. We are tempted to add, also, legislation regulating wages, but there may be some question whether the ordinances of 1349 and 135195 were meant originally to be more than temporary, for it was thought worth while to declare the former to be a statute in 1378, the intention then being, perhaps, to remove any doubt of its permanent character. 96 We may note, too, that in the printed statute book we have other instruments that are called ordinances. There are the letters patent of 1344 issued at the request of the commons ' pur recomforter le poeple ' which are entered on the statute roll 88 Prynne, Irenarches Redivivus, pp. 28—32, collected the principal references. The change to the modern practice appears, however, to begin in 1491 : cf. Statutes of the Realm, I, xxxv; II, 524, 549. Professor H. L. Gray's chapter on the subject is not helpful (Influence of the Commons on early legislation, pp. 379—404). 89 Statutes of the Realm, II, 17, 23. "" Ibid. pp. 61, 68, 87, 92. 91 Ibid. p. 36. On the other hand the legislation against heresy in 1406, although limited in duration until the next parliament, is termed a statute (Rot. Parl. Ill, 583). 'J2 Statutes of the Realm, I, 292-4 (referred to as an ' ordinance' in 1352 : ibid. p. 325), 302-3, 324-6. M Cal. Pat. Rolls, 1330-34, pp. 362-3; Statutes of the Realm, I, 332-44. 'u Statutes of the Realm, I, 353-5, 355-6, 369-70. 93 Ibid. I, 307-8, 311-3. Although in the case of the legislation of 1351 the heading in the statute roll contains the word ' statuta ' and the marginal heading in the parliament roll the word ' estatut ' (Rot. Parl. II, 233), in the body of the text the enactment is called 'ordinance.' So, also, the commissions of peace and of labourers of March 15, 1351, speak of ' ordinaciones de operatoribus et seruitoribus per nos et consilium nostrum pro communi vtilitate ipsius regni, tarn in consilio nostro quam in vltimo parliamento nostro apud Westmonasterium tentis, factas ' (B.96 H. Putnam, Enforcement of the Statutes of Labourers, Appendix, p. 22). Statutes of the Realm, II, 11.

XXV 36

The Early Statutes.

and there entitled ordinaciones 97 and which we may compare with the similar letters patent of 1340.98 There are also the so-called ' Ordinance for the Justices ' of April, 1346, which comes from the patent roll," an ordinance ' pro statu terre Hibernie ' of 1357 * and an ordinance against maintenance of 1390,2 both of which are on the statute roll: none of these is parliamentary and they need not detain us. But then there are the ' ordinances ' of the Hilary parliament of 1365, consisting of two enactments, one containing miscellaneous legislation consequent upon the petitions of the commons and the other the ' Statute of Praemunire ' of that year 3 : why these should be entitled ordinances upon the statute roll it seems impossible to guess, unless it was by that sheer contrariety which led the enrolling clerk to give the title statuta to the legislation of the previous parliament of Michaelmas, 1363, which it had been decided, with great deliberation, should be by way of ordinance and not by statute. 4 Leaving aside the inexplicable vagaries of the clerk responsible for the titles in the statute roll, there seems yet to be an element of confusion, and we suspect that it is due to a development in parliamentary practice which is plainly marked from the beginning of the reign of Edward III. The normal type of statute is based upon a petition of the commune; permanent legislation arising therefrom is clearly recognized to be a statute. Any other action taken in response to a petition will, it is true, be ' ordained ' and therefore will involve an ' ordinance ': this word, however, is beginning to acquire a specialized meaning and is applied, when used in this sense, to a series of provisions which take a similar form to a statute, differing only, when arising from a petition of the commons, in the measure of its permanence and therefore of its importance. There seem, at a subsequent stage, to be evolved three tests for a statute, which were once interdependent but became independent: does the legislation arise from a petition of the commune ; is it of general application; is it intended to be permanent? If the reply to any of these questions is in the negative then the legislation shoxild not, apparently, strictly be described as a statute. But although we may legitimately deduce these criteria from the " Rot. Parl. II, 150-1; Statutes of the Realm, I, 302-3. 98

Above, p. 16.

•" Statutes of the Realm, I, 303-5. 1 Ibid. pp. 357-64. 1 Ibid. II, 74-5. 3 Ibid, I, 383-7; Rot. Parl. II, 2S4-8. 1 Statutes of the Realm, I, 378-83; Rot. Parl. II, 280-2; above, p. 34.

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formulas used in drafting' statutes and ordinances, we must not lay any great stress upon them. It would almost seem as though there were in the background a draftsman of methodical mind who failed to win assent to his categories and terminology. If there were such a draftsman, or if he may stand for ideas which were undoubtedly current in the later fourteenth century, his attempt to introduce order into legislative forms and procedure was misconceived. The solution came when ' statute ' became identical with parliamentary legislation. This identity was achieved but slowly, and in the fourteenth century was as yet far distant: and it is with some difficulty that we discern, among contradictions and confusions, the tendencies which eventually produced this result. In the early years of Edward III there appears to have been no insistence upon the exclusive competence of parliament to make statutes. The great council at Nottingham in 1336 had been the occasion of sumptuary legislation which is termed ' ordinacio et statutum ' 5 ; but, as we have seen, the doctrine of the supremacy of parliament was in the air, and it is not surprising that we are unable to find any later example of statute-making by a great council,6 nor that in 1353 it is implied that statute-making is for parliament alone. While in the numerous instances we have adduced we perceive a developing conception of parliamentary control over legislation, however imperfectly this control might be realized in practice, there is nothing to lead us to suppose that an ordinance which was that and no more, whether it had its origin in parliament or in the council, was in any way less effective or less authoritative than an ordinance which was termed a statute. 7 The implication in some cases seems evidently to be that a simple Statutes of the Realm, I, 278-9. ' At the great council at Northampton in 1338 an ' ordinance ' or ' accord ' providing for the attachment of suspects had received the assent of the magnates, the •commons, it would seem, not being consulted on this occasion. The terms of the ordinance appear not to have survived, but they are indicated by the references in Rot. Parl. II, 128 (13), 130 (39), and by the commissions consequent on the ordinance, see Gal. of Patent Rolls, 1338-40, pp. 141-2. As to the great council at Winchester in 1371 see the note following. 7 We may perhaps note in this connexion the allegation that the clergy ignored the legislation of 1371 concerning tithes of woodland (Statutes of the Realm, I, 393) on the ground that it was an ordinance and not a statute (Rot. Parl. II, 319 (21)). This legislation arose out of a petition, presented at the Lenten parliament of 1371 (ibid. p. 305 (23)), but answered apparently at the great council at Winchester in the following June (ibid. p. 304 (13); Statutes of the Realm., I, 393; Bulletin Inst. Hist. Research, VIII, 68) : and whatever may be its proper designation—it is one chapter of a series entitled a statute in the statute roll—its enforcement was not for the ecclesiastical courts, of which the commons complained, but for the king's courts. The'party aggrieved by any infringement had his remedy in a writ of prohibition (cf. Registrum Brevium, fo. 45) : obviously he could not plead a secular enactment of any sort in an ecclesiastical court. 3

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The Early Statutes.

ordinance was to come up for reconsideration in parliament, but unless it were specifically limited in duration there was nothing to prevent its enforcement indefinitely, as was the case with the ordinances regulating wages after the Black Death. Moreover, although some care seems to have been taken in the actual drafting of legislation to distinguish between a simple ordinance and a statute, the distinction, being of little practical effect, was easily blurred. The fact that the scribes responsible for the statute roll put the word statute into their titles or marginal headings, without warrant in the text of the instrument, is one to which we should not perhaps attach great weight 8 ; but we find the exchequer clerks responsible for Liber X equally giving the title of statute to simple ordinances, 9 and, a matter of greater significance, we find the judges in 1355 giving the name of statute to an ordinance of 1340 and founding upon it an argument of great constitutional importance.10 It is equally noteworthy that both ordinances of ' labourers ' of 1349 and 1351 are termed statutes in subsequent legislation n as well as in official documents of various kinds.12 The distinction then between an ordinance and a statute was a refinement which was ineffective because it was without practical result. The question was raised again in the seventeenth century when an attempt was made to buttress political disputes with historical arguments: statutes, it was contended, required the assent of king, lords and commons; ordinances were without this 'threefold consent,' but were 'ordained by one or two of them.' 13 As Prynne was able to show, no historical basis can be found for definitions on these lines.14 Actually the issue in the seventeenth century was parliamentary authority, and 8 Above, p. 36. It will be understood that the first statute roll is not confined to parliamentary matters even under Edward III : e.g. the ordinance for Ireland of 1357. Earlier there had been entered more miscellaneous matter. The sheriff's oath was written on the dorse of the roll between 1306 and 1316, perhaps in connexion with the Statute of Sheriffs of the latter year. In 1324 there is an entry on the dorse more difficult to explain, a memorandum of the appearance before the council of Hugh of Angouleme, the papal envoy (Statutes of the Realm, I, 192, 247, 357). We shall therefore not expect too nice a discrimination on the part of the scribes. ' E.g. Statutum de stapula, Statutum contra seruientes et laborarios (below, p. 53). '" Above, p. 32, n. 73. 11 Statutes of the Realm, I, 330 (cap. 3: referring to ordinance of 1349), 350 (cap. 6, 7 ; referring to ordinance of 1351). 12 Sometimes the ordinance of 1351 is distinguished as a statute, sometimes both ordinances appear to be regarded as one statute (Putnam, Enforcement of the Statutes of Labourers, App. pp. 24, 26, 29, 32, 145, 149 et passim). Cf. Rot. Purl. II,11258 (18). Coke, Fourth Institute, p. 25. 11 Irenarches Redivivus, pp. 27—44. For a defence of Coke, see the notes to his Commentary upon Littleton (ed. 1823), fo. 1596.

The Early Statutes.

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this, too, was the issue in the fourteenth century: nomenclature was, in truth, a matter of indifference. But the king, so it was said, makes the laws with the assent of the peers and the commune, and not the peers and the commune.15 The king then is the legislator, not parliament: and it is a difficult question, not only how far he is bound to consult parliament, but how far, once parliament has been consulted, he is bound by the decision then made. The case of the bishop of Ely shows the king disregarding the highest legal opinion obtained in the most solemn manner and overriding by an express command a statute of which the meaning is indisputable. In 1343 the king had asserted his right to review and amend statutes,16 and in 1351 a request that the intention of statutes should not be perverted had been evaded by a demand for particulars.17 Although in 1354 it had been agreed that nothing should be added to or subtracted from the Statute of the Staple, this must be understood as applying only to this particular measure,18 and it was in regard to the staple that in later years complaint was made of changes without the assent of parliament. 19 With the gradual widening of the principle of the inviolability of a statute and the adjustment of the prerogatives of the crown to this principle, we are not here concerned.20 We have only to indicate that in the fourteenth century there are but occasional and uncertain adumbrations of ideas which in the seventeenth century became the subject of passionate dispute, and by the nineteenth had become indisputable. As we go backwards in time so those ideas, in anything like the form in which we now conceive them, become impossible. 15 ' Et fuit dit qe le roye fist lez leyes par assent dez peres et de la commune et non pas lez peres et le commune ' (Year Book Hil. 22 Edward III (ed. 1530), fo. 3b). Note that in response to an anonymous petition asking that ' estatut ou remedie ' may be ordained to protect priories from spoliation, it is replied : ' Qui qe se soit greue veigne et se pleyne, et quant a estatut faire, le poeple ne ee voet assentir ',(Chancery Parliament and Council Proceedings 43/6); this petition must be late Edward II or early Edward III. For the equivalence of ' poeple,' ' bones gentz,' ' communalte,' ' communitas,' see the documents connected with the Statute of Stamford (Rot. Pad. I, 443-4; Statutes of the Realm, I, 154, 156) : elsewhere they are identified with the earls and barons (Annales Paulini, p. 267). For a similar reference, in 1322, to ' le poeple qi veignent au parlement,' see J. C. Davies, Baronial Opposition to Edward II, p. 583. 18 Rot. Parl. II, 139 (26). The king's reply to the general request that statutes hitherto ordained should be maintained in force must not be dissociated from the petition which follows asking that the abrogated statute of 1341 should be reinstated. 17 Rot. Parl. II, 230 (39). 18 Ibid. II, 257 (16). 19 Ibid. II, 318 (17), 368 (44); Anonimalle Chronicle, p. 86. Parliamentary authority seems, however, in fact to have been obtained : see the editor's remarks, ibid. p. 183. 20 Cf. Pollard, Evolution of Parliament, pp. 326 ff.; Holdsworth, History of English Law, II, 435 ff.; VI, 217 ff.

XXV 40

The Early Statutes.

In the earlier years of the fourteenth century parliament itself was a new thing and the commons no indispensable part of it: in the reign of Edward II they were not always summoned, and under Edward I parliaments were more often held without them than with them.31 When, therefore, towards the close of the thirteenth century, collections of statutes were being formed, parliamentary authority meant something different from what it came to mean towards the end of the fourteenth century, and there was no particular reason for rating higher enactments proceeding from deliberations in parliament than any other enactment made with royal authority, 22 and therefore presumed to be with the common counsel of the realm.23 It was not, of course, difficult to recognize the first and second Statutes of Westminster, the Statutes of Gloucester, Acton Burnel and Winchester, as legislation of first-class importance and necessary additions to the primitive collections which contained the charters and the Statutes of Merton and Marlborough. Their significance was obvious, and no one would have questioned their authority. But what of the minor enactments among the Vetera Statuta, and of the makeweight which the editors of the Statutes of the Realm relegated to the limbo of ' statutes of uncertain date ' ? 2 4 We should have no justification for supposing that Edwardian lawyers regarded as statutes the legal tracts and rules of court— Extenta Manerii, Dies Communes in Banco, and so forth—which are included in early manuscript collections : such supplementary matter was there for the sake of convenience, like the Register of Writs, as well as Fet Asaver, the Magna and Parva Summae and similar treatises, which are also often included within the same covers as the early statutes. Convenience also determined what enactments, parliamentary or otherwise, should be included, but in every case the original compiler and his contemporaries, we do not doubt, had a precise idea of the nature of the document and of its authority. The bar was too intimately connected with the bench, the judges with legislation, for it to be otherwise. But we can adduce actual proof in the case of 21 The facts, so far as they are known, are conveniently summarized in the Interim Report of the Committee on House of Commons Personnel and Politics (1932), pp. 60—71. 22 The detailed analysis of ' legislative assemblies ' in relation to the legislation of Edward I contained in the First Report on the Dignity o/ a Peer has been directly or indirectly the basis of later discussion : it needs to be read in the light of modern research on parliamentary origins. " Above, p. 26. 24 Cf. Holdsworth, History of English Law, II, 222-3, 604. Actually this division of the first volume of the Statutes of the Realm is unnecessarily large : see below, pp. 51-2, for the dates of many of these statutes.

The Early Statutes.

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a representative number of these minor instruments—the Dies Communes in Banco, the Prerogativa Regis, Circumspecte Agatis, the Statute of Quo Warranto and the Statute of Waste. It was not the practice of the common bench at Dublin to observe the rules of adjournment in force at Westminster, but one ingenious Irish suitor in the early fourteenth century brought a writ of error on the ground that whereas, when she prayed view on the morrow of All Souls, the justices had appointed a day on the quinzaine of Easter, by common law and certain assignment of days of pleas in the bench, they should have assigned a day on the octave of Trinity. But the court had no doubt about the matter. ' The assignment of common days in banco is not derived from ancient law, nor is it a statute of the king but an ordinance of the justices of the bench at Westminster, and although it is useful, it cannot be thought that the present king [Edward I] nor any of his ancestors had ever commanded such an ordinance to be observed in this land.' 25 There may perhaps have been occasional questioning about the Prerogativa Regis which, according to the Year Book reporter, was in 1342 regarded as a statute of Edward I: but if the court was, on this occasion, of this belief, it was certainly an aberration. 26 For although now and again in the fourteenth and fifteenth centuries the Prerogativa was entitled a statute and was even given the date of 17 Edward II in the early printed editions of the statutes, there was no doubt of the real nature of this treatise which, in the language of the times, was a ' rehearsal' or ' affirmance ' of the king's prerogative and was put on the same level as the Dies Communes and Kxpositiones Vocabulorum.27 In December, 1382, after the chancery, relying upon the Prerogativa Regis, had attempted to enforce the alleged rule that female tenants in chief of whatsoever age might not marry without the king's licence, and the parties had challenged by petition in parliament the authority of the supposititious statute, the great council met to consider the point, when there were present all the justices, the Serjeants and many others learned in the law. These, being questioned by the lords and prelates, replied that the Prerogativa was not considered to be a statute and that the article upon which the chancery relied " P. R. O. Dublin, Cal. Justiciary Rolls 1 and 2 Edward II, fo. 164. 26 Year Book 16 Edward III (Rolls Series), I, 131-5. This report is exceptional in that the case was heard in chancery. It should be noted that the editor's manipulation of the text at p. 133, to make it appear that the ' statute ' was attributed to Edward II, is quite unwarranted. " Year Book 43 Edward III, fo. 22; Year Book 15 Edward IV, fo. 126, 13; cf. Maitland, Collected Papers, II, 188.

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The Early Statutes.

had not heretofore been observed. Nothing could be more definite and categorical.28 The genesis of Circumspecte Agatis has been investigated by Mr. E. B. Graves, who has shown, with great probability, that it originated in a writ addressed to the justices in eyre in Norfolk in 1286 at the instance of the bishop of Norwich: to this writ was added an extract from the gravamina of the clergy, with the king's replies, possibly of the year 1280.29 While the writ may have subsequently been used as the basis of general instructions to the justices, it seems impossible that the document, in the form in which it appears in the Statutes of the Realm, was of official origin 30 : the two parts were almost certainly conjoined as a mere matter of convenience by some practitioner who wished to put together the latest rulings regarding the writ of prohibition. In this form it passed into the early collections of statutes, and reference was made to it as a statute in 1307.31 But it is unlikely that its real nature was in doubt. In 1345 the Court, according to the Year Book reporter, questioned its validity on the ground that it was not a sealed statute, Mr. Justice Willoughby remarking ironically that the prelates had made it themselves 3 2 : in other words, it represented concessions made by the crown at the request of the clergy, but these did not involve any change in the law. Of the origin of the Statute of Quo Warranto and the Statute of Waste there is no question: both appear upon parliament rolls, the one in 1290, the other in 1292. The former is the record of the decision regarding the manner in which writs of quo warranto were to be determined, providing inter alia that to spare expense to the parties impleaded actions should be tried in the locality before the justices in eyre.33 The latter is the record of the decision resolving a difference of opinion between the justices upon the issue raised in the case of William Butler, namely, whether an heir had right of action in respect of waste committed in the time of his ancestors: the decision, an interpretation rather than an amendment of the second Statute of Westminster, was formally communicated to the justices of the common bench for their future guidance.34 Both decisions were Gal of Close Rolls, 1881-85, pp. 234-5. English Historical Review, XLIII, 1—20. Although Mr. Graves appears to believe that the two parts of Circumspecte Agatis were combined in a ' chancery writ ' available for issue to justices in eyre (ibid. p. 14), this form seems certainly spurious : it is quite unlike any contem31 porary writ or letter. Year Books 33-35 Edward I (Rolls Series), p. 479. 32 Year Books 19 Edward III (Rolls Series), p. 293. 33 Rot Parl. I, 36-7; Statutes of the Realm, I, 107. 34 Rot. Parl. I, 79; Statutes of the Realm, I, 109—110. 28 29 30

The Early Statutes.

XXV 43

obviously intended to be binding, but was either a statute? It is important to note that every circumstance surrounding both must have been known to the justices and the Serjeants: this is plain from the sequel, although we should be justified in assuming the fact, because it was customary for them to attend parliament. At this point let us remark that Gilbert of Rothbury (or, as he is more usually known, Roubury) was clerk of the parliament from 1290 until some date in the reign of Edward II. He was appointed a justice of the common bench in 1295, but he did not cease to act as clerk of the parliament, and he retained in his personal custody the parliament rolls for which he had been responsible.33 Now on December 31, 1298, the king sent to Rothbury inquiring about a certain ordinance of quo warranto alleged to have been made in the Easter parliament 1290. In reply Rothbury forwarded a transcript of the document, adding that the advice of all the justices of the common bench was that, in accordance with this ordinance, all pleas of quo warranto should be determined before justices in eyre and not elsewhere; ' and it is well that the king should keep the grant and promise made to the people.' se Here then is a considered judicial opinion upon an instrument which is called by the justices ordinacio, gratia,3'1 and promissio, but not statutum. However, this ordinance is of binding force and will surely be useful if anyone seeks on behalf of the king to get an action of quo warranto determined at Westminster. So the careful Serjeant or apprentice, when he knows the view the justices take of the ordinance, has it copied into his book of statutes: but if it comes to be called a statute by reason of its associations, we must not suppose that a contemporary lawyer could not have drawn, had he been so minded, as fine and as vain a distinction as we are able. And so, also, with the Statute of Waste. Butler's case was cited as a statute in 1314, to be immediately challenged on the ground that, since it had never been sealed, it could not be a statute. To this it was replied that the statute was to be found on the rolls of Gilbert of Rothbury, where the king commanded that it should be strictly observed, and that in response to a writ Rothbury would certify accordingly.38 This reply has " English Historical Review, XLVI, 537-42; XLVI, 194. " Chancery Warrants 1538/3 and 4. 57 It will not be overlooked that this is one of Bracton's words when speaking of the Provisions of Merton; above, p. 2, n. 8. " Year Books 7 Edward II (Selden Soc.), PP- 126-8.

XXV 44

The Early Statutes.

misled those who have not appreciated that Rothbury was clerk of the parliament, as well as a justice of the common bench, and that a certified transcript from the parliament rolls in his keeping could be obtained in the usual course.39 However, it is clear enough that everybody engaged in the case knew exactly what this so-called statute was: not only Toudeby who cited it as such and Scrope who objected that it was not sealed, but also Mr. Justice Inge, who referred to it as ' eel ordinanz ' and adjourned the action until he had informed himself of how it had been applied in previous cases.40 Our discussions have, of necessity, not kept to any strict chronological order; but now we must try to get them into historical perspective. The documents seem to tell us that some time after the parliament of Oxford in 1258 men began to make collections of statutes. Behind these collections are the charters, which we may call, if we are careful of the sense we give to the phrase, the fundamental law of the kingdom.41 The charters had been born of revolution and they were at once a treaty, as it has been well said,42 and legislation. In like manner the Provisions of Oxford were born of revolution and were both treaty and legislation : and the enactments which embodied them —the Provisions of Westminster, replaced after the Barons' War by the Statute of Marlborough—were regarded as possessing a status similar to the charters. And so with these as a nucleus and the legislation which was associated with the council of Merton (and which fairly represented the most important part of the law-making of the earlier years of Henry III), we get the beginnings of a statute-book. The collections varied in content, and whoever made them took, in no very critical spirit, such texts as lay to hand. It was on such foundations that the Edwardian lawyers compiled their collections. They put together whatever was useful to them. Statutes, royal instructions, rules of court, tracts on procedure, registers of writs, all might go into one volume. They knew their way about their own books and they knew the value of each document. As yet there was no official, no authorized, collection of laws. If the authority of an instrument was challenged, there was a ready test—did it bear the king's seal? But this was not the sole test. Sealed statutes were not the only enacted law the " See Dr. Bolland'e suggestions in Year Books 8 Edward II, p. xv : cf. Plucknett, Statutes and their Interpretation, p. 23. " Year Books 7 Edward II, p. 128. " Cf. Holdaworth, History of English Law, II, 441-2. " Despite the criticism to which this phrase has been subjected, we think it expresses an important truth : cf. McKechnie, Magna Carta, pp. 104-9; Holdsworth, History of English Law, II, 210; Pollard, Evolution of Parliament, p. 219.

The Early Statutes.

XXV 45

court would recognize; and an ordinance which was on a parliament roll could not be gainsaid. And then the king might of his mere motion issue instructions which would interpret or vary or even suspend a statxvte. In this way we get the explanatory clauses or corrections successively added to the Statute of Gloucester, which, when they are conveyed under seal, the justices will obey, just as they will obey any other instructions under the king's seal, even if they conflict with a statute. There was no difficulty, therefore, about adding to a collection of statutes a writ to the justices in eyre, such as Circumspecte Ac/atis, if it was likely to afford guidance in the practice of the law. There was, of course, this difference that a statute was intended to be of general and permanent application, while a writ, however valuable as a precedent, was limited to the specific circumstances in which it was issued: but the collections were not being made upon such a plan that the latter need be excluded, although the distinction must be borne in mind. It was not long before the need for a collection of statutes was felt in the chancery. No one was set the task of compiling an authoritative corpiis of enacted law, but it was a matter of convenience that there should be available for reference a collection similar to those circulating in legal circles. And sosuch a collection was borrowed, and since it, was the custom of the chancery to keep rolls and not registers, this collection was copied on to a roll: the manner in which this roll grew, and attained authority, we have described. It is, however, from the exchequer that we get the best view of the business of making a collection of statutes. The collection which ultimately became the official exchequer statute-book started as, at best, a semi-official collection, constructed on the same lines and in the same manner as any private collection. It was not until the year 1354 that it was rediscovered and supplemented and received the statutes of Edward III and Richard II as they were transmitted to the exchequer. In the meantime, before this book was adopted for the purpose, the preservation and recording of statutes in the exchequer had been of the most haphazard kind. Nor does any evidence exist that in any department of government was there any better system, with the solitary exception of the chancery, where a more or less systematic attempt at making and maintaining a collection of statutes seems to have begun in 1299. Although we speak of a collection of ' statutes,' and this was the contemporary usage, none of these collections, not even the-

XXV 46

The Early Statutes.

statute roll of the chancery, is exclusively devoted to enactments which are self-described as such. While ' statute ' is undoubtedly used from the middle years of the thirteenth century in the sense of established law, it only gradually became a term of art. In this we have a reflexion of the gradually changing process of law-making. The great statutes of Edward I are legislation from above, with the assent of the magnates and, at times, of the commons : but as parliament changes in composition and conception, and the commons come to be invariably summoned, so the typical legislative enactment becomes one based upon a petition of the commune which in a special way is represented by the commons. Such legislation is from below, and the procedure inevitably reminds us of that which resulted in the charters and the Provisions of Westminster—the ultimate foundation stones of our statute law—and these enactments based upon the common petition are in especial, and particularly when they are intended to be permanent, termed statutes, although we may find exceptions to this rule. There is, moreover, still legislation from above, which may or may not be submitted to parliament, and there is legislation founded upon petitions of the clergy: but for legislation which is not based upon the common petition the more appropriate term is felt to be ordinance, although, once more, we do not find absolute consistency. The solution is ultimately found when the power of the crown to legislate outside parliament is recognized as exceptional, when legislation, whatever its origin, normally passes through the same stages and receives the same assents, and when all parliamentary legislation is statutory : but this development, although implicit in the changes in the fourteenth century, lies well beyond the period with which we are dealing. There is, we feel, yet a further conclusion to be drawn from our discAissioris: the need for an edition of the early statutes on historical principles. Valuable as is the first volume of the Statutes of the Realm, it has serious defects, not the least that every student of legal history who uses it finds that he has much to unlearn. Highly as the editors regarded manuscript evidence, they had a greater regard for the printed word: for, as they envisaged their task, they were concerned with finding support for the received text rather than with constructing an historically faithful text. Their work reflects the labours of compilers in the closing years of the thirteenth and the early years of the fourteenth centuries, compilers working obscurely without official authority and with no precise standard of textual integrity. Not only had these compilations provided, in later transcripts, the

The Early Statutes.

XXV 47

copy for the early printed editions of the statutes, which form the ultimate basis of the Statutes of the Realm, but they provided in turn much of the manuscript evidence of which the editors availed themselves. The editors deliberately put aside the inconvenient bulk of instruments which had, with great care and diligence, been collected from record sources for their consideration, and confined themselves to the contents of the statute roll and of the early printed editions which had the authority of generally received tradition. Their recourse to manuscripts, therefore, while it resulted in some redistribution of the material between dated statxvtes and statutes of uncertain date, left the work of the early compilers substantially as the editors found it. They did not conceive it their duty to analyse the early collections in order to determine their primitive constituents, nor to establish and date the original texts that lay behind these collections, nor to introduce into the canon legislative instruments which Edwardian compilers had excluded or overlooked or which had not found their way into the manuscripts used for the early printed editions. For this, even if it had not been deliberate policy, there was much excuse. Records were then hard to find or were for all practical purposes undiscoverable which, in the hundred and twenty odd years that have elapsed since the first volume of the Statutes of the Realm was published, have been rendered accessible. Nor must we forget that the historical background of the great formative period of English law is known now in a way impossible then. But it is time that the work was done afresh, so that the legal historian, and, indeed, all those interested in any aspect of medieval history, can have to hand in a convenient and intelligible form a corpus of early legislation, prepared in the light of the new knowledge of the present day. We need a companion set of volumes to the three monumental volumes of the Gesetze der Angelsachseu: must we look to a Liebermaim to accomplish the task? Additional Note to p. 1 :—There has recently been puhlishecl a charter (c. 1160) of Robert earl of Leicester in which reference is made to ' statutum regni,' but this apparently means no more than ' the custom of the realm ' (Registrum Antiquissimum (Lincoln Record Soc.), II, 5). Additional Note to p. 3.—A small group of manuscripts combine the older laws with the statutes (see Liebermann, ' Leges Anglorum Loudoniis collectae,' pp. viii, 87—90, 102-4). This collection seems to have been put together soon after 1300 for the use of the municipal authorities of London. The best representative of the group is Oriel College MS. No. 40, where the older laws include ' Glanville ' and Richard I's assize of measures, and the statutes begin with Magua Carta. The collection is completed with Fet Assaver and other legal tracts and a Register of Writs (of which only the concluding portion remains). This collection probably owes a good deal to the antiquarianism of Andrew Horn the chamberlain, or of some other city official of like tastes, and is in no way typical of the books circulating in legal circles, where the older laws were forgotten.

XXV 48

APPENDIX

I.

A. THE STATUTE BOOK OF THE EXCHEQUER. We analyse below the contents of Liber X (E. 164/9) to the end of the reign of Edward III, the period covered by Statute Roll No. 1. The book as it now exists was put together late in the fifteenth centtiry, but the original nucleus is of the thirteenth. At various periods leaves have been added and some leaves have been lost. It begins with a Capitulacio omnium statutorum regnorum Edwardi tercii, Bicardi secundi, Henrici quarti, Henrici quinti et Henrici sexti: this is an analytical index which obviously was composed quite independently of the rest of the contents of the volume. There is then a separate table of statutes, followed by a table of chapters of selected statutes, both of which were drawn up by the scribe whom we designate as the Second Hand: some additions were made by the Third Hand. The statutes range from John's Magna Carta to Statute 16 Richard II, which breaks off abruptly before the end of chapter iii. Here some leaves must have been lost. A register of writs immediately follows. There is some miscellaneous matter scattered through the book, including a calendar, but nothing of moment except a number of writs connected with Hugh of Cressingham. It is these writs which give us the clue to the origin of the book. Hugh of Cressingham was a royal clerk who has achieved a certain notoriety by the manner of his death. He seems to have been a trained lawyer and towards the end of his career was much employed as commissioner of oyer and terminer, justice of assize and justice in eyre.1 There seems to be no definite evidence to connect him with the English exchequer beyond his employment with two others in 1292 to audit the debts of Henry III 3 : his employment as the Queen's steward and her bailiff in Wales indeed makes it improbable that he was a regular member of the exchequer staff. 3 His appointment in 1296 as treasurer for Scotland placed him at the head of the exchequer at Berwick.4 But it would seem that the book of statutes with which his name is connected was being written before that time. It will be seen that the First Hand has written no statute of a date later than 1290. The register of writs, which is written in a similar, if not the same hand, and was in any case illuminated by the same scribe, has, added at the end, copies of writs connected with Oessingham's eyre in the northern counties in 1292-4. Some of these are in the same book1 Cal. Patent Rolls, 1281-92, pp. 291, 306, 485 et passim; Gal. Close Rolls. 1288-96, pp. 261, 272 et passim; Abbreviatio Placitorum, p. 232: Stevenson, Documents illustrative of History of Scotland, I, 356, 365, 390, 402; .Rot. Parl. I, 117, 367, 209, 411; State Trials of Edward I, p. 15; Assize Rolls, nos. 134-7, 408-16, 582-6, 650-6, 837-41, 985-8, 1084—1103, 1290. =3 Rot. Parl. I, 85«. Rot. Parl. I, 30—33: Cal. Patent Rolls, 1281-92, pp. 398, 411. 1 Stevenson, Documents, II, 31, 34-5, 103-4, 163 et passim; Bain, Cal. Docts. Scotland, IT, 170, 226, 230; Rot. Parl. I, 473; E. 101/331/5

The Early Statutes.

XXV 49

hand as the body of the register, some in a charter-hand which may yet be the hand of the same scribe. The latest in the book-hand bears the date May 16, 1292; the latest in the charter-hand bears the date November 22, 1293. But besides these, on fly-leaves in the earlier part of the volume, before the statutes, there are entries of similar writs in the same charterhand, two of which bear the dates January 2, 1293, and June 10, 1294: and three undated writs are headed ' Brevia de quo waranto de itinere H. de Cressingham.' The connexion with Cressingham is plainly inescapable,5 and it would seem highly probable that the book was made for his personal use. But it seems certain that it was written in the exchequer, for not only does it contain such typical exchequer instruments as the Statutes of the Jewry and of the Exchequer, but one article (not apparently included in other collections of statutes) is avowedly taken from the memoranda roll of 18 Edward I, where it is in fact to be found. 6 The book, we may note, was never completed: the decoration stops short half way through the register of writs, and the catch-titles have been supplied to only a few pages of the register. Perhaps Cressingham wanted the volume for use in Scotland, and it went there and came back at his death: still we can only conjecture how the book came to be at once associated with him and the property of the exchequer. But in the exchequer the book remained and no one apparently disturbed it for nearly sixty years: no mark or addition suggests that it was read or consulted. And then in 1354 there was a search for the Statute of Wales. No copy was to be found in the chancery, but someone had a thought of looking into this neglected book in the exchequer and there it was discovered. So a writ was formally sent and the exchequer provided the chancery with a transcript: and writ, return and transcript remain to this day.7 Attention having been drawn to this statute-book, it was decided to set a clerk to work to bring it up to date. The additions he made are shown below under the " Second Hand." He added one item only for Edward I and three for Edward II, but the bulk of Edward Ill's legislation up to 1354. He also added the two tables of which we have already spoken. We should note that he began to enter the earlier statutes in his collection on some blank pages which the first scribe had left, commencing on the dorse of folio 3: but when he came to folio 8 he found that he needed more room and therefore added four leaves. He then 'corrected in red the original foliation which had been in black. It is the red foliation only which we have given below. A Third Hand added two items: the statute of 1321 known as that of Westminster the Fourth, and Statute 31 Edward III. The former, instead of being entered with the. other statutes of Edward II on the blank pages left by the Second Hand, was inserted on a fly-leaf: the scribe, however, made appropriate additions to the tables of contents. Subsequent scribes entered up later legislation of Edward III and Richard II, but we cannot readily distinguish the several hands. Their work was careless. Year numbers are sometimes wrongly copied and Winchester may be written for Westminster. One item clearly belonging It has already been noted by Miss Cam, Studies in the Hundred Rolls, p. 41. Below, p. 51. Chancery Parl. and Council Proc. 11/1 : printed Statutes of the Realm, I, 68. 5 0 7

The Early Statutes.

XXV 50

to 2 Edward III is inserted between two statutes of 38 Edward III, the latter of which is ascribed to the 39th year. No attempt was made to keep the tables of contents up to date nor even to continue the foliation where the Second Hand had stopped. Various jottings in the calendar show that the book was still in use in the sixteenth century, but for how long statutes continued to be copied into it on the lost folios we have no means of telling. Ultimately it was presumably superseded by Liber IX, a volume in which were transcribed the statutes from Henry III to Henry VI (now E. 164/10). Liber X was treated with respect by the editors of the Statutes of the Realm, who took some of their texts from it and collated others with it. They might, however, have used it to greater advantage. To take one example: they reprinted the Prohibitio formata de Statuto Articuli Cleri from Berthelet's edition of 1532, where it is without date, although an early copy dated July 1, 1285, was to be found at fo. 63& of Liber X. In the analysis below we have given these particulars: the folio at which each item begins; the titles as given in the rubrics or, where no rubric is supplied, in the table of contents, or, in one instance, the memoranda roll which served as the original; the date as given in the body of the instrument, or, where this is lacking or obviously incorrect, the date ascertained from other sources (in square brackets); the pages of the first volume of the Statutes of the liealm 8 or, failing this, of another publication where the instrument may be found in print. An asterisk prefixed to an item means that it is to be found (but not necessarily in identical form) on the first statute roll. Folio.

1

Title.

Date.

MBST HAND. Statutum de Marlebergh' 1267

Printed Edition.

St. R., I. 19-23.

1215

St. R. Ch., I. 9-13.

Magna Carta

2 Hen. Ill 10

Eng. Hist. Rev. XXII. 514-8. [St. R. Ch. I., 22-25].

186

Carta de Foresta

[2 Hen. Ill]

St. R. Ch., I. 20-21.

19

Provisions de Mertona

1236

St. R., I. 1-4.

20b

Statuta de KellingwrtKe

1266

St. R., I. 12-17.

22

Sentencia lata in transgressores libertatum Magne Carte et Foreste

1254

St. R., I. 6-7.

22b

Provisiones de anno bisextili

54 Hen. Ill

St. R., I. 7.

22i>

Explanatio de Quo Waranto (Latin)"

[1290]

13

Carta Regis lohanuis que uocatur Bonnemede 9

16

St. R., I. 107 (French).

* St. R. Ch. means that section devoted to Charters which has a separate pagination. *10 Incomplete : ends ' Domini S. Cantuarensis Archiepiscopi.' We discuss this version of Magna Carta above, p. 18. 11 This title is taken from fo. 31 where this article—the Latin version of the Statutum de Quo Warranto Novum—is entered in a court-band.

The Early Statutes.

XXV 51

Date.

Printed Edition.

226

[De cartis diuersarum libertatum quas dittersi clamant per easdem ostendendas] 12

18 Edw. I

[Rot. Parl, I. 35 (no. 29)].

25

Les premers estatuz de Westmuster

3 Edw. I

31b

Les estatuz de la leuerie

[1275]13

St. R., I. 220-1.

32

Les estatuz del Eschekere

[1275]

St. R., I. 197-8.

33

Districciones de Scaccario

[1275]

St. R., I. 1976.

[1278]

St. R., I. 47-50.

Folio.

Title.

34

*Lea estatuz de Gloucestre"

35!)

*Explanaciones Gloucestrie

356

statutorum

Statutum de Quo Waranto«

366

*Statuta Eeligiosorum

37

*Les estatuz de Wincestre

38

Les estatuz de Excestre

C Edw. I

St. R., I. 26-39.

St. R., I. 50.

[1278]

Registrum Malmesburiense, I. 238.

[1279]

St. R., I. 51.

13 Edw. I 16

[1285]

St. R., I. 96-8. St. R., I. 210-2 [from this copy].

40

*Les estatuz de Slopbury ke aunt apelee Actone Burnel

11 Edw. I

St. R., I. 53-4.

41

Statuta de Moneta prouisa apud Karnaruan

12 Edw. I

St. R., I. 219 [from this copy].

42

Statuta de Militibus

[c. 1278]

17

St. R., I. 229.

12 This entry is avowedly taken from the Memoranda Eoll of 18 Edward I and the title we give is from L.T.B, Mem. Boll (E. 368), no. 61, m. 15. The entry in the Parliament Eoll gives the decision upon which this instrument, the consequent writ to the barons of the exchequer, is based. " This and the two following enactments were passed at the Michaelmas parliament, 1275 (Law Magazine, XXI, 308—315; Bulletin of Inst. of Hist. Research, V, 137; Cam, Studies in the Hundred Rolls, p. 37). The date of the ' Statute of the Exchequer ' is determined conclusively by the writs of November 3. 1275, on the Fine Koll, giving effect to the new arrangements set out in cap. 5—7 of the statute (Col. of Fine Rolls, 1272—1307, p. 55). By January 1277 these arrangements had been superseded, and by February 1283 there was a complete reversion to the earlier system of escheatries (ibid. pp. 77, 157, 174, 180). 14 This is the version with the short preamble : see St. R., I, 45. 15 Latin, corresponding to the clauses prefixed to the French version of the Statute of Gloucester : see St. R,, I, 45-6. 16 For this date see Munimenta Gildh. Land. II, 497, and St. R., I, 212, n. 3 • cf. Law Magazine, XXI, 307. " The reference to Anthony Bek shows that the date must be before his election to the see of Durham in 1283; it is further clear that he and Eobert Tibetot were performing the duty assigned to them by this ' statute ' as early as 1279 (Cal. Chanc. Warrants, I, 5). But the Fine 'Bolls of Edward I seem to record no fines for respite of knighthood earlier than C Edward I (Col. Fine Rolls, 1S72—1307, p. 135), in which year, on June 26, a writ was issued to the sheriffs requiring them to distrain all with twenty librates of land to take up knighthood by Christmas (Purl. Writs, I, 214). There appears further to be a reference to the procedure prescribed in the statute in letters patent of March 12 1279 (ibid. p. 219).

The Early Statutes.

XXV 52 Folio.

Title.

Date.

42

Les estatuz a enquere de trespassurs

[1276-8] ls

426

Artiouli de faciendis

45

*Statutum de Bothelan 1J

12 Edw. I

46

Statutum de iudicio reddito super Quo Waranto '»

466

Statuta Wallie

53

636

*Magna Statuta Anglie Prohibicio prouisa

ls

inquisicionibus

Eegis

de

nouo

[1290]

Printed Kdltion.

St. R., I. 44.

St. R., I. 235-8. St. R., I. 69—70.

St. R., I. 107.

12 Edw. I

St. R., I. 65-68.

13 Bdw. I

St. R., I. 71-95.

13 Edw. 120

St. R., I. 209.

SECOND HAND. 36

Confirmaeio Magne Carte

28 Edw. I

Si. R. Ch., I. 3841.

12 Edw. II

St. R., I. 177-8.

Tern-

17 Edw. II

St. R., I. 194-6.

8

Statutum contra Thomam comitem Lancastrie et complices suos

15 Edw. II

Foedera, II. 478-9.

646

*Statutum factum statim post c o r o n a c i o n e m Eegis Edwardi tercii post conquestum

1 Edw. Ill

St. R., I. 255-7.

656

*Secundam statutum faotum anno primo contra Hugonera de Despenser et aliog

1 Edw. Ill

St. R., I. 251-4.

676

*Statutum secundo

2 Edw. Ill

St. R., I. 257—261.

6

^•Statutum de Eboraco

7

*Statutum de Terris plariorum

factum

onno

696

S t a t u t u m factum anno qninto contra Eogerum de Mortuo Mari

5 Edw. Ill

Rot. Parl., II. 52-4. (nos. 1—6).

71

*Aliud gtatutum factum eodem anno

5 Edw. Ill

St. R., I. 265-8.

18 This, the Statute of ' Bageman,1 and the following chapters of the eyre are probably of about the same date (Cam, op. cit. pp. 41 f., 89). 19 These titles are taken from the table of contents. 20 With dating clause : Teste me ipso apud Westmonasterium primo die lulii anno regni nostri terciodecimo.

The. Early Statutes. Folio.

73

*Statutuin Eboracum

756

*Statutum de debitorum

806

**tatutum contra et labornrios

836

*Sta t u t u in de victualibus capiendis et Iraditoribus adiudicandis -'

93

Printed Edition.

Date.

Title.

Statutum de stajnila

74

86

XXV 53

fnctuiii

apud

perdonacione seniientes

Statutum de stapula *Statutum factuin anno xxviijo

6 Edw. Ill

Cal. Patent Rolls, 1330-4, pp. 362-3.

9 Edw. Ill

St. R., I. 269-72.

H Edw. Ill

St. R., I. 281-9.

[25 Edw. Ill]

St. H . , T. 311-(i.

25 Edw. Ill

St. R., I. 319-24.

27 Edw. ITI

St. R., I. 332-43.

28 Edw. Ill

St. It., T. 345-49.

TH1KD AND L ATER HANDS. Flyleaf

*Statntum contra vicecomites et de processu in attinctis abbrevdato --

14 Edw. II

St . R., I. 180-1.

956

*Statutum factum apud Westmonasteriura

31 Edw. Ill

St . R., I. 349-52.

976

*Statutum de anno xxxvjo

36 Edw. Ill

St . R., I. 371-6.

[100] 23

*Statutum de eodem anno

36 Edw. III

St . R., I. 376-7.

[1006]

*Statutum de anno xxxvij"

37 Edw. III

St . R., I. 378-83.

[103]

*Statutuni de anno xxxviij 0

38 Edw. III

St . R., I. 383-5.

[2 Edw. III]

Below, Appendix

[104]

Articiilus edilns apud Norhanton'

I, B.

St . R., I. 385-7.

[104]

*Statntnm de anno xxxixo

[38 Edw.

III]

[1056]

*Statiitmi> de anno xlijn

42 Edw.

III

St . R., I. 388-90.

[1066]

*Statutum dc anno xliijo

43 Edw.

III

St . R., I. 390-92.

[108]

*Statutum dc anno xlvto

45 Edw.

III

St . R., I. 393.

Statutum de anno xlvijo

47 Edw.

III

St . R., I. 395

50 Edw.

III

[1086]

[1086]" *Statutnm de anno Jrao

24

[from this copy].

St . R., I. 396-8.

-' Omits final chapter given in Statute Roll. -- Title from table of contents. -s The foliation ceases at 97; we have supplied in brackets later folios. -" This is misdated 39 Edward ITI both in the rubric and the text of the statute. 23 At fo. 1106 the statutes of Richard II begin.

XXV 54

The Early Statutes.

B. OBDINANCE SUPPLEMENTING g STATUTE 2 EDWAED III. Liber X (E. 164/9), fo. 104. The following instrument is the only one in Liber X the substance of which cannot be found elsewhere in print. ARTICULUS EDITUS APUD NORHANTONAM. Acorde est et assentu par le Roi et son conseil qe les oiers et terminers grantez centre la fourme del estatut fait el temps le Roi Edward aiel le Roi qore est qi sont vncore a attamer 2G soient mayntenaunt repelles, et de autres oiers et terminers qi sont attames qe mandee soit qe les processes dycelles soient mys deuaunt les justice en le place le Roi, sauauntz les deux oiers et terminers touchantz les abbeis de Seint Edmund e Dabyngdon' de queux le Roi mesmes ad conisance et les grante pur les horriblez feloniez et trespassez qi ent se fierent, en si grande effraie de son poeple, et sauuez les oiers et terminers de ceux de la querele. Mes cestz pointz doier et terminer ne sont pas mys en estatutz einz sont bailie en la chauncerie par bille. 26

MS. attamers.

XXV 55

APPENDIX II. A STATUTE

AMENDING g THE

STATUTE

OF MONEY

(1307).1

DE QUODAM STATUTO REGIS DE FORISFACTURA DIUEESAETJM RERUM AD OPUS REGIS. Dominus Rex misit breue suum de priuato sigillo Thesaurario et Baronibus et Camerariis de Scaccario in hec verba: — Edward par la grace Deu etc. au Tresorer 2, as Barons et as Chaumberleins de nostre Escheker saluz. Por ceo qe nad guerres la dame de Stuteuille vint a nus a Cardoil et nus fist entendaunt qe partie de la vessele dargent qi fuist a monsire Robert de Stuteuille iadis son baron, cest asauer viii esquielles, viii sausers et quatre hanaps dargent, les queux il forfist a Douere, quant il passa la outre saunz nostre congee, par nostre estatut de la Monee,3 et sunt ia demorez illoqes par deus annz come chose forfete a nus saunz venir a nul profit de nus, de quei nus esmerueilloms mult qe dentre vus lesset nos bosoignes si graunt temps a nounchaler, la queu chose nous ne quidioms pas. Nous sur ceo, eiaunz regard a totes tieles choses qi nus porront desoremes estre forfetes en nostre reialme, auoms ordenee et establiz qe totes maneres des choses moebles, de queuqe manere de forfeture qe ceo seit forfetes a nus desorenauant en les portz par ceux qe 4 i 5 passent ou font contre lestatut de la Monee, ne seient ia plus longement delaez ne respitez, mes meintenaunt, as iours as queux les choses serront issint forfaites seient saisiz en nostre mein et par nos ministres et gardeins en parties illoqes ou eles serront ensuit forfaites, seient enueez sanz delai as chaumberleins a fi la receite du dit Escheker a feire ent nostre profit, issi qe les choses y vignent et nostre profit ent soit fet, auant qe nous ent puissoms estre requis par ceux a qi les choses furent. Et voloms qe ceste ordenaunce auaunt dite seit ferme et estable por tuz iours come nostre estatut, car nous ne bioms ia desoremes nules tieles forfetures pardonner en mile manere. Et voloms et vus maundoms qe ceste ordenaunce seit entre com estatut a Lescheker, en ChaunceJerie et en Garderobe. Et vus maundoms ensement qe, par tuz les portz de nostre realme, f acetz enueer cesti nostre ordeinement, issint qe nos ministres es ditz portz a ce assignez pussent estre garniz de fere nostre profit en la manere auantdite totes les foitz qe nules tieles forfetures eschescent a nous. 1 We have taken the text from L.T.E. Memoranda Koll 35 Edw. I (E. 368/77), m. 56. There are many variations in spelling in the K.E. Eoll (E. 159/80), m. 44, but2 we have noted omissions and additions only. K.E. inserts e. 3 Statutes o/ the Realm, I, 131-3. 4

K.E. qi. *6 K.E. omits. K.E. de.

XXV 56

The Pearly Statutes.

Done suth nostre priuee seel a Cardoil le xxvi me de Maij, Ian de nostre regne xxxv. Et incontinent! istud breue liberatur per manus Thesaurarii Episoopo Londoniensi, Cancellario Anglie, in Scaccario sedenti, vt ipse Cancellavius faciat inde fieri breuia Regis de magno sigillo per singulos portus Anglie custodibus et balliuis eorundem portuum continencia plenariam mencionem de ordinacione predicta et quod ipsi balliui, custodes et ministri predicti ordinacionem illam firmiter custodiant et exequantur in omnibus suis articulis.

NOTES Page 1, par. 1 See also Sayles, King's Bench, iii. pp. xi-xlii. 16, n.93 Above, XVII. 194-5, XXII. 377f. 22, n.19 line 1: III. 7-8. line 16: XXII. 387-8. 23, n.29 Above, XXI. 13. 26, ns.46, 47 Above VII, for the sources of these revisions. 31, n.67 Above, XXII. 387., n. 4. n.70 Above, XXI. 74. 32, n.75 Above, XVI.72; XXI. 6. 43, n.35 For xlvi, 194 rearfxlvii. 194; above, VI. 337-42, XVII. 194.

XXVI Parliaments and Great Councils in Medieval England

I. WHAT WAS PAELIAMENT ? IN 1258 the committee of Twenty-Four, appointed to reform the realm, determined that there should be three parliaments a year, and they proceeded to prescribe the proper constitution of a parliament or, rather, the minimum baronial representation there. It is clear from contemporary documents that the council minute which records the decision taken on this matter leaves much unsaid. While the Provisions of Oxford speak of the " elected councillors " (meaning the Fifteen) and of the representation of the commune (of barons) by twelve of their number, a parliament was understood to include a substantial ministerial element (without which it could not function) and could expand to a much more numerous assembly than the prescriptions of the Twenty-Four might suggest. Again, we are told no more of the business to be transacted in parliament than that the king's " elected councillors " should be present " to survey the state of the realm and to discuss the common interests of

XXVI 2

Parliaments and Great Councils

the king and the kingdom." Indeed, if all we had to go upon was this minute, our conception of the English parliament under Henry III would be very vague.1 Writing in 1260, the king had, however, occasion to be a little more precise: justice was administered in parliament to all and sundry and, with the king's consent, there might be a change [in the law] or a new ordinance.2 And then, towards the close of the century, the author of Fleta described parliament in a way that might be taken as an elaboration of Henry's words. " In his parliaments the king in council holds his court. . . . There judicial doubts are determined, new remedies are devised for wrongs newly brought to light, and justice is dispensed to everyone according to his deserts." 3 In their different ways the three documents appear to be describing an easily recognisable institution, a court set apart from, and set over, other courts. Indeed, if this were not the case, it is difficult to understand how, a few years before Fleta was written,4 there could have been dispatched from Ireland to England a treasury clerk, Alexander of London, whose duty it was to be present at three parliaments (which seem to be readily identifiable) and there to prosecute and defend the king's interests.5 We could add, and we have indeed cited elsewhere, some scores of examples from the thirteenth century which seem to show that men understood exactly what a parliament was and knew precisely where and when parliaments were held. And in the belief that the many entries in official records had a meaning for contemporaries, we have gone so far as to construct tables showing the incidence of English parliaments and we have even ventured to tabulate Scottish and Irish parliaments. We have also accepted, and even added to, For texts of the Provisions of Oxford, see the Annals of Burton in Annales Monastics (Eolls Series), i. 446-453, reprinted by Stubbs, Select Charters, pp. 378-389, and our The Provisions of Oxford, reprinted from Bulletin of John Rylands Library (1933), where a commentary will be found.. The text in the Annals of Burton, unaltered by Stubbs, is unsatisfactory, and the translation should be disregarded. The passage translated above should apparently read " pur voier le estat du reaume et pur treter des communes busoignes du roy et du reaume." We do not think that more than three parliaments a year were contemplated, though there might be extra-parliamentary occasions when both Fifteen and Twelve might be summoned (below, pp. 8, 9). The construction of the French of the minute is not, however, without difficulty. We return to the question of the functions of parliament later. 2 Close Rolls, 1259-1261, p. 273; the text was previously printed by Shirley, Royal Letters of Henry III, ii. 155. 3 Fleta, lib. ii. c. 2 (Selden Society edition, p. 109). * Internal evidence shows that Fleta, in the form in which it has come down to us, was completed in the period 1296-1300. s P.E.O., E. 372/139, m. 6d (account of William of Eastdean for the period June 1292 to June 1294): Et Alexandro de Londoniis, clerico thesaurarie Hibernie, eunti in Angliam per tres vices et existenti ibidem ad tria parliamenta pro negociis ipsius domini regis prosequendis et defendendis. . . . The parliaments must be those of Easter and Michaelmas 1292 and Easter 1293. 1

Parliaments and Great Councils

XXVI 3

the list of French parliaments constructed by other scholars. Nay more, we have edited two substantial volumes of parliamentary records and ascribed them, we believed correctly, to identifiable parliaments. But now, we are assured, all this work was beating the air, our categories and classifications mere fantasies begotten of illusion. When clerks in the chancery, the exchequer, the courts of justice, were to all appearance summoning and adjourning to parliament, recording solemn acts in parliament, they knew not the significance of what they did. We must picture the clerk Alexander dispatched from Ireland to seek, not once but three times, an ignis fatuus, a vague uncertain assembly, that might be called a parliament or treaty or colloquy or council, which, by some marvellous stroke of good fortune, he not only found but in which he performed the business he was required to undertake: and then, to crown all, he managed to obtain payment for the services he had rendered. A veritable conte de fee. Lest we should be thought to exaggerate the reaction from any attempt to give precision to parliamentary history, to credit medieval clerks with some knowledge of their own business, let us cite the recent pronouncement in the volume on The Fourteenth Century in the Oxford History of England: No very precise answer can be given to the question, " What is parliament? " for even in the fourth decade of the century a flavour of colloquialism still clings to the word, and such attempts as have been made to establish distinctions between similar assemblies, variously described as parliamentum, tractatus, colloquium, consilium, fail to carry conviction.6 Professor McKisack does not tell us why she has not been convinced, why she rejects the great body of evidence which seemingly tells us what parliament was. She gives no examples of ambiguity or confusion which might put that evidence in doubt, but refers us to Professor T. F. T. Plucknett, who contributed an article on " Parliament " to The English Government at Work, 1327-1336. She makes his argument her own.7 We turn then to Professor Plucknett's exposition.8 His argument is based upon a list of twenty-five " assemblies summoned by writ under the great seal which comprised all the bishops, abbots and peers usually summoned." Of these twenty-five, four are rejected because no commons were summoned. Of the remaining twenty-one, eighteen, we may remark, are called " parliament " in « Op. eft. p. 182. 7 Miss McKisack is not, of course, the first to accept Professor Plucknett's thesis without verification. 8 Op. cit. i. 82-90.

XXVI 4

Parliaments and Great Councils

the writs of summons and three are not. The side-notes in the enrolments, moreover, distinguish with apparent care between the eighteen and the three: each of the former is described as parliamentum, each of the latter as concilium.9 These differences might suggest that there was a marked distinction between the eighteen and the three; but, objects Mr. Plucknett, " it is quite incredible that there should be two distinct institutions consisting of the same people unless there was a substantial difference in powers or function to justify the technicality." The argument continues that, since Mr. Plucknett refuses to admit any difference, there was in fact no distinction between the twenty-one assemblies. Miss McKisack is satisfied with this reasoning: to us it appears to be a non sequitur. We ask, as it is necessary in any historical investigation to ask, whether those living at the time saw any distinction between the eighteen and the three. Now it so happened that two knights of the shire for Norfolk, John of Ormesby and Robert of Noers, served in three consecutive assemblies and obtained writs of expenses which were not honoured by the sheriff.10 These three assemblies they described as (i) the parliament summoned to Northampton on the quinzaine of Easter in the second year of the king (April 17, 1328), (ii) the tractatus held at York on Sunday next after the feast of St. James in the same year (July 31, 1328) and (iii) the parliament held at Salisbury on the quinzaine of Michaelmas in the same year (October 13, 1328). The knights of the shire drew the same distinction as the chancery clerks did: they saw the difference which Mr. Plucknett disputes. We call another witness, the abbot of Stanley, who in the first ten years of Edward Ill's reign was a persistent petitioner for a remedy for a disseisin inflicted upon his house by Hugh Despenser. Of his many petitions five have survived, four in original and one in a contemporary transcript.11 Twice at least, in 1333 and again soine four years later, he stated that he had sued in every parliament since the king's coronation,12 and in a petition transcribed in the king's bench in 1331 he names six of these parliaments.13 They are the first six described officially as parliamenta in Mr. Plucknett's list: those at Westminster, York, Northampton, Salisbury, Westminster and Winchester. The abbot puts them all in strict chronological sequence and does not omit one of them. But he has no Lords' Reports, iv. 384, 460, 479. 10 P.E.O., E. 13/59, m. 5. The dates given in the enrolment are not precise. 11 P.&.O., S.C. 8/3573; 7830; 7915; 10323; K.B. 27/283, m. 149. 12 S.C. 8/10323: qe come il eyt siwy par plusours peticions en totz les parlomentz qi ont este puis le coronement nostre dit seignur (printed Rot. Parl. ii 70). This he repeats in much the same words in no. 3573 (c. 1337). is K.B., 27/283, m. 149. 9

Parliaments and Great Councils

XXVI 5

word of the colloquium at Lincoln in September 1327, the consilium at York in July 1328, the colloquium at Windsor in July 1329, although we have his word for it that he did not miss a single parliament. Must not the omission of the three unparliamentary assemblies, as the chancery clerks considered them, be by reason of the simple fact that they were not parliaments, that there the abbot would have had no opportunity to transact the parliamentary business he had in hand, that there he would not have found the " triours des billes " of whose inactivity he complained ? 14 We could hardly have more conclusive proof that Mr. Plucknett is in error. But let us call yet a third witness. A much longer list of pariiamenta, concilia et tractatus, stretching from 1327 to 1340, for which the knights of Shropshire claimed their expenses, has, it is true, one mistake: the meeting at York on July 31, 1328, is called pariamentum,15 whereas the knights of Norfolk and the clerks of chancery term it tractatus or concilium. We have elsewhere given many parallel instances where we may find some misdescriptions and an overwhelming majority of correct descriptions, if we may so qualify the usage of the chancery.10 No argument can be built upon these casual errors: we must take the evidence as a whole. Thereupon the argument that differences in the terms of the writs of summons implied no distinction is shown patently to be an argument against the evidence. We might perhaps have left the discussion there and referred to our fairly lengthy series of publications for a considered exposition of the evolution of parliament and the distinction between parliaments and great councils. But it is evident that to do so would be vain, for either our critics have not understood what we have written or our presentation has been wanting in clarity. Let us try again. The assumption that " parliament " is a vague, uncertain conception, a word used haphazardly by medieval clerks, is nothing new. " Parliament," said A. F. Pollard, " is vox et preterea nihil: there is nothing to distinguish it from other assemblies called in pursuance of the 14th article of Magna Carta requiring the special and general summons of tenants-in-chief to give consent to extraordinary feudal aids." " But this statement he justified only by Not of these alone. He complains that " le tresourer, chanceler, I.Mours des billes ne justices ne ount uncore volu doner response " (loc. cit.). !ft is noteworthy that these are. from the abbot's standpoint, the significant members of parliament. is P.E.O. C. 219/6/13A. « B.I.H.R., viii. 69-71. 17 Evolution of Parliament (1934), pp. 4G-47. Pollard's statement that there was " a complete discrepancy between the Rolls of Parliament and the so-callei' Parliamentary Writs " suggests that his researches were not profound.

14

XXVI 6

Parliaments and Great Councils

a reference to the chronicles excerpted by Stubbs in the Select Charters and by a somewhat confused appeal to the more easily accessible records of Edward I's parliaments. Seemingly Pollard, like many others, was misled by the distinction Stubbs had drawn between " the terminal session of the select council, the session of the great council, and the session of the commune concilium of the three estates," to all of which " the name of parliament, the king's parliament, belonged." " In the Rolls of Parliament," he added, " the confusion of name and distinction of function are still more conspicuous, for most of the early documents preserved under that name belong to the sessions of the council for judicial business. . . . "18 Stubbs did not argue his case. He did not invent it. He borrowed it, without acknowledgment, from the Reports of the Lords Committees on the Dignity of a Peer.19 Pollard was too acute to be misled by this pretence of learning.20 He saw, for example, the hollowness of the conception of " the three estates." 21 But he lacked the leisure or the patience to assemble and assimilate the material for the early history of the English parliament: he was no medievalist, He seems to have been on the verge of accepting the " regular sessions " of the records as the true parliaments, scouting the idea that there could be anything vague and uncertain about a scheme which involved adjournments from one parliament to the next parliament. But the tradition of " the two kinds of meetings," still held by medievalists despite the evidence, was too strong 22 : it remained to befog him and not only him, but his readers and his critics.23 Now let us repeat what we said long ago, supported by a plenitude of evidence, " 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." 24 To these words and their implication, which have caused difficulty—unnecessary is Constitutional History (4th ed.. 1896), ii. 274. 19 Lords' Reports, i. 169-171. The Lords Committees distinguished between legislative assemblies and " the council of the king . . . sitting principally as a council and as a court of justice," but they added "the legislative assembly . . . was usually convened to meet the king during the sitting of one of his ordinary parliaments." Stubbs's contribution, apart from changes in language, was to divide the " ordinary " council of the Lords Committees into two. 20 Maitland had already quietly exposed the fallacy of the three kinds of council (Memoranda de Parliamento, p. Ixxxviii n). 21 Evolution of Parliament, Chap. IV, " The Myth of the Three Estates." 22 Ibid. pp. 48-51. 23 In the second edition of the book, Pollard noted and commented upon (pp. 430446) the criticisms expressed in reviews by some of the leading constitutional historians of 1920. Not one noticed the main errors into which he fell in hia account of the medieval parliament. 2< B.I.H.R. (1928), v. 133.

Parliaments and Great Councils

XXVI 7

difficulty perhaps—we shall return.23 Let us say here that they are plainly contrary to all that Stubbs implied when, borrowing, as was his wont, an error of the Lords Committees,26 he spoke of a " model parliament " in 1295 27; they are plainly contrary to what countless teachers, uncritically reproducing Stubbs, have proceeded to teach their pupils. The primary criterion by which an assembly is to be assessed is, we assert, that of function and not the presence or absence from the king's court of particular persons or some particular class of suitor. This criterion we believe to have been the contemporary criterion: function determined whether or not a particular session of the king's council was parliament and was so termed. The doctrine advanced by Stubbs, that the presence or absence of the " three estates," in particular of representatives of the counties and shires, is a valid criterion by which to determine whether or not an assembly was a parliament, is sheer anachronism: in the face of contemporary evidence to the contrary it is an absurdity. It is clear that under Edward I and Edward II there was no convention whereby the representatives 6f either shires or boroughs were necessarily summoned to parliament and, as Stubbs himself was constrained to admit, there was no restriction Of the name of parliament to assemblies in which they were present.28 To apply such a test even to the parliaments of Edward III would be highly questionable. We have but to turn to the history of parliament in Ireland at this period to learn that not until towards the end of his reign was it beginning to be thought essential to ensure the presence of representatives of shires and boroughs.29 Even were we to admit the existence of a recognised convention whereby shires and boroughs were represented in the English parliaments of Edward III, we could not then argue, as Mr. Plucknett does, that where the commons are there also is parliament. This is to fall into an obvious logical fallacy. Again, it is patently false to assert, as Stubbs asserted, that " the representation of all classes of the people is necessary for the complete organisation of a national council"—whatever that may mean—" and that complete organisation is legally constituted by summons to parliament." So He is thinking of his " model " of 1295. Yet after that year the author of Fleta knew only that in the king's parliaments there were present prelates, barons and others learned in the law.81 Of any further elements he said nothing; of national councils he said nothing; -' Below, pp. 30-31. 42-43. = 6 Lords' Report*, i. 231. 291. 390. " Below, pp. 31-32. 2S Below, pp. 32. 44. 2" Richardson and Sayles, Irish Parliament in the Middle Ages, pp. 69-70, 76-78. so Select Charters, p. 40. *! Fleta, lib. ii. c. 2 (Selden Society edition, p. 109): for date, see above, p. 214, n. 4. 2

XXVI 8

Parliaments and Great Councils

indeed, to speak as Stubbs speaks is to use not the language of the Middle Ages but the tendentious jargon of the political theorists of his own time. If we prefer Fleta to Stubbs, it is because we prefer truth to fiction, plain history to baseless theory. Like every judicial and administrative tribunal—and it is only gradually that the distinction between them becomes clear as the Middle Ages advance—parliament evolves and changes. What may be said of it in the thirteenth century will not be true of it in the fifteenth: the parliament of Fleta is not the parliament of Fortescue.32 And since parliament was not the creation of a legislative act nor, so far as we can tell, a conscious creation at all, we cannot give a date to its inception. Bracton, conservative that he was, never uses the word parliament. He knows of an afforced court where the community of the realm and the baronage are present, but he gives that court no specific name.33 We can hardly be wrong, however,'in equating Bracton's universitas regni et baronagiums* with the commune of the Provisions of Oxford, who were to elect twelve representatives to meet the king and his council in parliament.35 But it is not every meeting between the council and the Twelve that constitutes a parb'ament. Since the position seems still to be misunderstood, let us explain what the arrangements were. It would have been clearly impracticable for the Fifteen, " cunseilers le rei esluz," to be in constant attendance as a body upon the king, and in the Michaelmas parliament of 1259 the relation of the Fifteen to the small body of councillors attendant on the king was clarified. The Fifteen were to be represented by two or three of their number: these were to be " mesne gent," that is of middling status, words which exclude bishops and earls. Their invidious task was to decide whether any weighty affair (grant bossoine) that might arise could be decided by their advice or could be deferred until the next terminal parliament or, if it could not be delayed, justified summoning by writ the whole of the Fifteen.36 Now it seems clear from the 32 The Governance of England^, Chap. 3: " the iii estates [of France], \vieh whan thai bith assembled bith like to the courte of the parlement in Ingelonde " (Plummer's edition, p. 113). 33 See the passages and references collected in T.R.H.S., 4th Ser., xxviii, 22. •'* "Bracton, fo. 171 !>. 35 Si fet a. remembrer ke le comraun eslise xii. prodes homes (Annales Monastici, i, 452). These words should be compared with the rubric to a preceding paragraph: Ces sunt les duze ke aunt eslu par les baruns . . . (ibid. p. 449). W. A. Morris's comments on the significance of the words commune, universitas and the like at this period are to be read with caution (Medievalia et Humanistica, i. 58-75). 3° The words we paraphrase run: "mesne gent del conseil, deus on treis, seient adessement entur le rei de parlement en parlement . . . e si mile grant bossoine surde entre les parlemenz ke ne porra estre termine par les (levant dit drus cm treis ou ke ne purra estre delae en bone manere deskes a! procein parlement, tuz ces del conseil seint mandez par bref pur cele bosoine terminer " (Annales Monastici, i. 477).

Parliaments and Great Councils

XXVI 9

terms of the chancellor's oath that a weighty affair meant, at least normally, the grant by the king of wardships, money or escheats of any considerable amount, for such grants could not be made without the assent of the " great council " or the majority of them.37 It seems also clear that these afforced meetings would not be specially summoned parliaments but afforced councils, for which provision had been made at Oxford, to which both the Fifteen and also the Twelve might be summoned.38 Here, then, we have assemblies of the same composition, some of which, those meeting at fixed terms, are parliaments, while others, meeting occasionally and not periodically, are not parliaments. We see that the insurgent barons have seized upon the word " parliament," a popular word and hardly yet a word of court, and have applied it to one kind of afforced council. In doing so they have given " parliament " a technical meaning, for periodicity implies definition: there cannot be a periodical occurrence of something that is not defined. What the technical meaning of parliament was we shall examine in the light of such evidence as is available; but we may say, in advance, that there seems no reason to suppose that Henry Ill's parliaments differed in character from those of Edward I nor that their distinguishing characteristic was not the dispensing of justice. These two points we must emphasise. First, parliament is an afforced meeting of the council: it is an occurrence, an occasion, not yet a separate court with a continuous existence like the courts of common law. This is made clear by Henry III when he speaks of the parliament " quod habuimus cum magnatis nostris apud Oxoniam " in the summer of 1258.38 And secondly, there are other afforced meetings of the council, not distinguishable in their constitution, which are not parliaments. We must not imagine that these two kinds of council meetings were altogether novel in 1258 and that in the Provisions of Oxford we have an act of creation. Parliaments eo nomine, as well as afforced councils or sessions of an afforced " great court," were already well known.40 The barons did not invent the distinction: they adopted it. Doubtless, without their intervention, parliaments would have become distinguished from other meetings of similar constitution and would have been 37 It had already been decided that the chancellor should swear " ke il ne enselera dun de grant garde, ne de grant deneres, ne des eschaetes, sanz le assentement de grand cunseil u de la greinure partie" (ibid. p. 448: we supply the word " denerea " from another text in Cotton MS. Tiberius B.IV, fo. 214). 38 A ces trois parlemenz vendrunt les cnnseilerB le rei esluz . . . e autre fez ensement quant mester serra par le mandement le rei ... xii. prodes homes ke vendrunt aa parlemenz et autre fez quant mester serra, quant le rei e sun cunseil les mandera . . . (ibid. p. 452). 39 P.E.O., C. 62/35 (Liberate Boll, 43 Henry III), m. 5. 40 T.R.H.S., 4th Ser., xi. 154: for the magna curia, see ibid., xxviii. 22.

XXVI 10

Parliaments and Great Councils

held at regular terms, for such a development took place at much the same time in France.41 The barons did no more than precipitate the event. That the barons attached importance to parliaments is evident from the Provisions of Oxford. That the king attached importance to them is evident from his determination that they should not be held in his absence." There is nothing whatsoever to suggest that either king or barons attached the same significance to other afforced meetings of the council. These other meetings were summoned by writ if, for any reason, important decisions must be taken urgently; but there is no reason to suppose that the Twelve had any particular desire to be present at them. Parliaments, however, were very different. In the scheme, as conceived at the parliament at Oxford, there need not even be a formal summons: the barons, both the Fifteen elected as counsellors and the twelve prud'hommes, came to the terminal parliaments as of right.43 We may go so far as to say that a properly constituted parliament might, in the barons' view, be held despite the king. But such an invasion of the king's prerogative could not but ensure resistance. The king resisted; the Oxford scheme collapsed 44 ; and the issue of the king's subjection to the baronage was fought out at Lewes and Evesham. Parliament was thereafter still frequently summoned by Henry III, but when he willed and on no ordered scheme.45 Yet the advantage of regular parliaments was obvious. As the fountain of justice, the king was under a duty to afford relief to his subjects, relief which, it was admitted, was not always available to them in the ordinary course. When Henry had forbidden the barons to hold a parliament in his absence, he had nevertheless expressed his wish that the justiciar, Hugh Bigod, should, with the aid of the council, administer justice to all and sundry.46 This alternative was possible because the justiciar was in a very special position: the office had been revived in 1258 by men who had a notion of its glorious past when the justiciar had been the king's alter ego. To Hugh Bigod Henry had himself committed the custody of the kingdom, though he did not intend to delegate the power to hold parliaments.47 Outside parliament Hugh Bigod and 41

« 43

4* *s *6 *T

Ch. V. Langlois, Textes relatifs a I'histoire du Parlement, pp. 229-234; Ducoudray, Les Origines du Parlement de Paris, pp. 50-55. Close Rolls, 1259-1261, pp. 267-268, 272-273; previously printed by Shirley, Royal Letters of Henry III, ii. 148-150, 153-155. " A ces treis parlemenz vendrunt les cunseilers le rei esluz, tut ne seient il pas mandez " (Annales Monastici, i. 452). K. F. Treharne, Baronial Plan of Reform, pp. 230-279, and see our The Provisions of Oxford, pp. 27-28. For a provisional list of parliaments, see T.R.H.S., 4th Ser., li. 174-175. Close Rolls, 1259-1261, p. 273. Loe. cit.

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other specially appointed justices had, it is true, been diligent in itinerating the country for the purpose of hearing plaints,48 but evidently this was no adequate substitute for the higher justice men might expect from the king's council in parliament. With the royalist victory at Evesham, the office of justiciar had been swept away, and there was no conceivable alternative to parliament if there were to be righted wrongs that the ordinary course of the law would not touch. It is not surprising therefore that, after Henry III had been gathered to his fathers and old quarrels had been largely forgotten, the new king should have reinstituted regular terminal parliaments, though now they were to be held twice a year only, in the Easter and Michaelmas terms. The need for them, or at least their popularity, is evident, for the plaints which reached the king's council at these sessions soon became an almost unmanageable flood.49 We trust that we have made two things clear: that from the time parliamentary history becomes recognisable and continuous, a parliament in England is an afforced session of the king's council, and that there may be other afforced sessions of the king's council, indistinguishable in constitution, which are not parliaments. To say this is not to say that at these other sessions there might not be performed any, or perhaps all, of the functions performed in parliament. If we were to assert that this was not possible, we should be asserting that there was some limitation upon the powers of the king in council. We know of no text in Bracton or in any other lawbook which would permit us to say any such thing. We emphasise the qualification " the king in council," for our medieval monarchy, as all our law-writers agree, is, in principle, a limited monarchy.50 But to say that there is no limitation upon the powers of the king in council is not to say that these powers will be exercised without regard to the conventions of the time. It is clear that already in 1258 a parliament has an authority, a status, superior to that of other afforced sessions of the council, and it would appear to be a corollary, for which there is much evidence, that in parliament specially solemn acts may be expected to be performed, a higher justice administered. And though, in the extreme case of Ireland in the fifteenth century, it is hard to tell « Bichardson and Sayles, Select Cases of Procedure without Writ, pp. xxxivxxxvi. 49 Hence, of course, the changes in procedure to expedite the hearing of petitions under Edward I (E.H.R. xlvi. 534-546). 50 This is implied by the opening words of Henry I's coronation charter and is expressly stated in the third recension of the Leges Edwardi Confessoris (temp. Henry II), in the prologue to Glanville (ed. Woodbine, p. 24), and in several places in Bracton: for these and other references, see T.R.H.S., 4ih Ser., xxviii. 24.

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why great councils were summoned as an alternative to parliaments, so similar are they in constitution and function, yet it is plain that parliament nevertheless has superior authority and status.51 II. WHAT WAS A GREAT COUNCIL? We have not yet directly answered one question that Mr. Plucknett posed: how do we distinguish between a parliament and a great council ? It is a fundamental question. Do not let us approach it, however, by seeking a neat formula, valid for two centuries and more, which would enable us to separate logically parliaments from great councils. We should then be falling into the same error as the Lords Committees, whose maleficent influence is not yet spent. We should be imposing upon the past a creature of our own imagining. We should be devising a test, which might satisfy those who would fashion the Middle Ages to their own liking, but which would be irreconcilable with the pattern of medieval society. We must learn, not from modern theorists, but from contemporaries of the events we are studying, and we must be very sure of our ground before we venture to correct their statements. To attain to the truth there is no alternative to the pedestrian method of description. We must catalogue and survey the texts—as indeed the present writers did to the best of their ability many years ago—before we classify or claim the right to generalise. We cannot, however, attempt to repeat, nor need we summarise here, the results of our survey. Rashly, perhaps, we will assume the reader's knowledge of them.52 It will, in any case, be obvious, from what has already been said, that both parliament and great council spring ultimately from the same stock, the king's council afforced by prelates and barons and, if need be, by such other learned men as the king chooses to "• Bichardeon and Sayles, Irish Parliament in the Middle Ages, pp. 186-188. We have not referred to Scotland, where there were marked differences from English practice, but it is noteworthy that there " general councils " (the equivalent of English great councils) and parliaments co-existed over a long period. There is no doubt that the Scottish parliament had essentially a judicial function: in 1398 "it is ordanyt that ilke yhere the kyng sal halde a parlement swa that his subiectes be servit of the law " (Acts of the Parliament of Scotland, i. 573). General councils do not appear to have had this function and the summons to them was less formal. On the whole subject see B. K. Hannay's article " On ' Parliament' and ' General Council' " in Scottish Historical Review, rviii. 157-170. 32 It may be convenient if we list here our principal contributions, published in periodicals, that are more directly relevant to the present article. The Origins of Parliament, T.R.H.S., 4th Ser. xi. 137-183. The Early Records of the English Parliaments, B.I.H.R. v. 129-154, vi. 71-88, 129-155. The Parliaments of Edward III, B.I.H.R. viii. 65-82, ix. 1-18. The King's Ministers in Parliament, 1278-1377, E.H.R. xlvi. 529-550, xlvii. 194-203, 377-397. The Commons and Medieval Politics, T.R.H.S., 4th Ser. xxviii. 21-45.

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summon. By the middle of the thirteenth century a line of cleavage becomes apparent: certain of these afiorced meetings men are beginning to call parliaments, while certain of them receive no particular name. The distinction becomes marked when parliaments become periodical. This is no peculiarly English development : it is common to all the French-speaking countries of Western Europe. Everywhere there have evolved sessions of the king's court which men agree to call parliaments.53 It would seem futile to deny so well attested a phenomenon and to argue that men did not distinguish parliaments from other sessions of the king's court. Whether we, with our limited information, can always distinguish is another matter. But if any historical fact should be beyond dispute it is that, at the Oxford parliament of 1258, the king, his ministers and the barons had a clear conception of what was meant when they distinguished between parliaments and other sessions of the king's court. And not only did the king, ministers and barons have a clear conception of what parliament was, but many other men likewise. Were it not so, we should find it very difficult to explain instructions to supply venison contra instans parliamentum " or to convey wine to Westminster ad instans parleamentum ss or to defer work to buildings there until after the parleamentum regis quod erit post instans Pascha.5* Instructions that are unintelligible are not given in such circumstances. Let us emphasise, even to the point of weariness, that the parliaments and the other sessions of the council contemplated in the Provisions of Oxford were meetings of essentially the same composition; that a formal summons was not necessary to a parliament in the case of those principally concerned, while a formal summons to sessions of the other kind was necessary; that parliaments were held at fixed terms and that the other sessions were occasional. The records which tell us this refer to the business to be transacted in the most general and, as we may think, inadequate terms and do not enable us to distinguish between the functions of parliament and the functions of the other sessions, though it would seem an obvious inference that those concerned knew full well where the distinction lay. However, the immediate point is that, if we were to reduce to a formula the scheme devised in 1258 and use it as the test of a parliament as distinguished from other sessions (our " great councils ") of later periods, we should fall into grievous error. A very slight knowledge of parliamentary history would tell us that the test would be irrelevant to the conditions of, say, 1358. 53 54 55 si

T.R.H.S.. 4th Ser. xi. 149-168. P.R.O.. C. 62/36, m. 6; Cal. of Liberate Rolls, Henry I I I , 1251-1260, p. 513. C. 613/33, m. 9; Cal. of Liberate Rolls, ut supra, p. 360. C. 62/35, m. 5; Cal. of Liberate Rolls, ut supra, p. 457.

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And yet if there ever was a " model " parliament, it was the parliament of the Provisions of Oxford : there is no other deliberate piece of constitution-making to match in the Middle Ages. It is true that, in a short while, the model was cast aside: but parliaments continued to be called and to meet. We seem therefore to be driven to the conclusion that, while the method of convening parliaments at the end of the thirteenth century might not have satisfied the barons of 1258, this did not mean that Edward I's later parliaments were lacking in some essential. By then parliaments had ceased, at least for the time, to be periodical and, if we are to judge from our imperfect knowledge of parliamentary writs, to convene them meant a special summons. Again, to judge from the relatively little we know, parliaments were adequately attended by the baronage, though not on the plan the Provisions of Oxford had envisaged. Above all, there can be no doubt that parliaments were performing the functions ascribed to parliament by Fleta, which, as we have seen, were, at least broadly, those in the minds of the men of 1258. There may not be absolute identity in function, for in forty years much had been learnt, as much would again be learnt in the next forty years; but whatever development there had been was directed towards securing the more effective administration of justice.57 And now let us move on to 1311 and look at the Ordinances of that year, for these tell us how the dissident barons under Edward II regarded parliament.58 Let us note, in the first place, that the idea of periodicity is still alive. The Ordainers do not ask for three or even two parliaments a year; but they ask for annual parliaments or two parliaments in one year if necessary.59 Then let us note what the Ordainers regard as parliamentary business: actions delayed because the defendants plead that they cannot answer without the king; grievances of those suffering from illegal acts by the king's ministers; pleas regarding which the opinion of the justices is divided; petitions.60 These four headings do not exhaust the total of parliamentary business: another clause of the Ordinances shows that the barons expected issues of war and peace to be discussed with them in parliament.81 Some other clauses strove to limit the king's freedom of action and cannot be regarded as pointing to what would normally have been considered parliamentary business—royal grants, the appointment of ministers, 57 Of this we say more below, pp. 30-43. s* Text in not. Pari. i. 281-296, and Statutes of the Realm, i. 157-167. ™ Art. 29. '|0 Loc. cit. Arts. 24, 25 and 40 are, in effect, particular applications of Art. 29. 61 Art. 9.

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the exchanges.62 Still, it is indicative of the miscellany of matters that might come before parliament that the barons sought to discuss such things there. It is clear, however, that the Ordainers are at one with the author of Fleta in their conception of the ordinary business of parliament. Their reference to petitions is especially worthy of note because there had been recent complaint of the absence of receivers of petitions in parliament.63 The Ordainers, let us add, have nothing to say of the method of summoning parliament, nothing of its composition. Presumably under these heads they had no criticism to make, certainly not of the absence of representatives of the commons from the parliament whence they derived their own authority. There is no reason to suppose that, in their view, this absence subtracted from the validity of that parliament. What was of importance to the Ordainers was doubtless that, in matters of consequence, the king should take counsel with the baronage, but they were not unmindful of the purposes which parliament was intended to serve in securing justice for the common man, the private litigant. The work of the Ordainers was perhaps inept; but at least they were speaking of things they understood and among those things was parliament. They may not have viewed parliament in precisely the same light as the reformers of 1258, yet what they said of it shows that they had in mind the same institution, though this institution had evolved in half a century. Parliament to them was a quite distinctive institution : there was nothing in the least vague about it. That anyone could read the Ordinances and come to a contrary opinion might seem incredible, had it not happened. Moreover, when we compare these contemporary descriptions of parliamentary business with the fairly voluminous records that have survived from the reigns of Edward I and Edward II, we perceive that there is absolute congruity. Parliament, or, rather, the king in council in parliament, is doing exactly those things that Fleta and the Ordinances would lead us to expect. It is against this background that the parliaments of Edward III must be regarded. The feature which distinguishes the parliaments of Edward III from those of his predecessors is the invariable presence of representatives of the commons and the development of the common petition. In the course of the fourteenth century this development greatly influenced parliamentary procedure. It gave a new form to legislation, which tended increasingly to be based, at "a Arts. 7, 14-16, 30. The clarification of the Charters, provided for in Art. 38, may be regarded as legislation and calla for no comment. «s Rot. Pari. i. 444Ì).

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least notionally, upon a petition presented by the commons,6* and it largely drove the private petitioner from parliament to seek his remedy elsewhere.63 That these changes were deliberately devised by the revolutionary government of 1327 it is impossible to believe. The change in legislative procedure derived from the enhanced status of the baronage, the origin of whose right, as peers, to sit as judges in parliament can be traced to their contest with Edward II. Judges, however, cannot at the same time be petitioners, and petitions of general import fell to be presented by the representatives of the commons, if they were to be presented at all.68 It was once fashionable to believe that the presence of the commons in parliament was secured by the Statute of York of 1322 : we need waste no words on this mischievous doctrine, without warrant in contemporary documents, which abundantly disclose the origin and purpose of the statute.67 The commons were present in the revolutionary parliament of 1327 because it was politically convenient to have them there. They continued to be summoned for the same reason. They had, in fact, been increasingly summoned under Edward II and, after years of uninterrupted summons under Edward III, habit hardened into right. But we can point to no formal legislative act that required their presence or prescribed their characteristic function in the new reign, while the changes in petitory procedure were too gradual to permit us to believe that these were deliberately contrived. To assume that the presence or absence of the commons can be taken as a test of the nature of the assemblies called in the early years of Edward III introduces a rule of law for which there is no evidence. It is, as we have said, a logical fallacy to go further and assume that, where the commons are, there also is parliament. But it is time we said something more of great councils.68 In the sense in which we have used it, the term does not seem to be employed before the 1380's. We have assumed that a great council in this sense is the lineal descendant of the afforced councils, which were not parliaments, for which provision was made in 1258.69 We can do more than assume, for the documents connected with the assembly that met at Nottingham on September 23, 1336, seem to show that " great council " is at first merely descriptive of an unparliamentary " colloquy " or " treaty," the equivalent of the " Richardson and Sayles, Early Statutes, pp. 21-23, 3(5-46; B.I.H.H. ix. 12-13. «= /bid. pp. 3-5; E.H.E. xlvii. 379-380, 386. 11(1 T.R.H.S., 4th Ser., xxviii, 26-27, 33. o? Speculum, xxiv. 69-74. «s J. F. Baldwin's account of great councils needs drastic revision (The King's Council in England during the Middle Ayes, pp. 106-111). '9 Above, pp. 8-9.

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aftorced magna curia of the earlier thirteenth century. The writs of summons call this assembly colloquium and tractatus, but in the statute and other documents which resulted from the deliberations there, the assembly is described as magnum consilium, grand conseii.70 However, in the writ summoning an assembly at Northampton on July 26, 1888, magnum consilium is the term used and this is repeated in the writs of expenses and some other documents.71 The adjective magnum is, however, rarely employed in writs of summons, though the assembly may be called a great council in later official documents. Thus, the assembly which met at Westminster on September 23, 1858, where there was a limited representation of towns and shires, was frequently thereafter termed a great council, though it had not been so described in the writs of summons,72 and there are a fair number of references to great councils in the remaining years of Edward Ill's reign.73 What is usually difficult to ascertain is the composition of great councils in these years,74 though subsequently the term appears to be regularly applied to afforced meetings of the council which included a number of peers and knights, besides the ministers and others who attended on normal occasions.75 But this was not the primitive sense of the term " great council." Earlier, when petitions were presented in large numbers ™ Lords' Reports, iv. 462; Statutes of the Realm, i. 278-279; Rotuli Scotiae, i. 459, 461; C.C.R. 1333-1337, p. 629. " Lords' Reports, iv. 492; C.C.R. 1337-1339, pp. 463, 526, 592. Note the distinction drawn between the great council and the preceding parliament in the close roll (B.I.H.R. vai. 68, n. 6). « Lords' Reports, iv. 698-601; not. Pari, ii, 246; Statutes of the Realm, i. 329, 332; C.P.R., 1350-1354, pp. 523, 537, 543; Foedera, iii. 272. There are many later references to the subsidy granted at this ' ' great council. " Foedera, III. ii. 854-855 (1368), 989 (August 1373), 1042-1043 (October 1375). See next note for other " great councils " 1371-1377. 71 For the great council at Winchester in 1371, see below, pp. 20-21. A great council at Westminster in the same year was attended by prelates, magnates and merchants, who granted increased customs duties (C.C.R-, 1369-1374, pp. 263-264) : it is doubtful, however, whether this grant was effective, having regard to the form of the " order and request " addressed to the urban authorities and to the fact that a similar grant was made in the parliament of November 1373 (Rot. Pari. ii. 317, no. 12). The afforced council agreed to at the Good Parliament of 1376 is termed the " great " council in notes of warranty (not. POT!, ii. 322 (no. 10); C.C.R., 1374-1377, pp. 384, 393, 416, 439, 440, 548). This was the ministerial council together with a number of peers, the choice of whom lay entirely with the king. There was, be it noted, no radical departure from practice, though for a time there was presumably a larger attendance at council meetings than usual (cf. Tout, Chapters in Mediaeval Administrative History, iii. 336-338). The king might at any time summon such an afforced council, and the peers who attended in 1376-1377 may all have been already sworn of the council (cf. p. 20, note 85 below). The practice is admirably illustrated in the record of the proceedings in 1366, in parliament and subsequently before the council, brought by Elizabeth, wife of Nicholas of Audley, against her father-in-law (C.C.R. 1364-1368, pp. 237239). 7S For references, see B.I.H.R. viii. 74 n.

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to the king and his council in parliament, the term magnum consilium was used to describe the third of the tribunals which might consider a petition. The petitioner presented his petition to the receivers, who passed it to the triers, who might, in turn, pass select cases to the great council. By the great council is evidently meant a tribunal of greater authority than the triers, who nevertheless included both prelates and barons as well as ministers among their number.76 The inference is that the great council was a fairly numerous body formed by a number of those summoned by individual writ as well as by some of the king's more intimate councillors who needed no writ.77 In 1258 the words appear to have meant a council which the Fifteen attended either in parliament or on some other occasion. Without their advice the chancellor was not to seal any considerable grants of wardships, money or escheats.78 The usage here is in Une with the usage in the early part of the fourteenth century, though the phrase is not a common one under Henry III or Edward I.79 After the collapse of the Oxford scheme it seems rarely to have been thought necessary to record the composition of the great council on any particular occasion and we are not to suppose that it had any rigid constitution. On one occasion in 1305 there were present thirty-six councillors,80 and, though this gathering is not specifically called the great council, there is no room for doubt that it is such a gathering that is meant when the term magnum consilium is used elsewhere. We may note in passing—and it may be no unnecessary reminder— that the great council on this occasion does not include any representatives of the commons, nor is there any suggestion that any ™ E.H.R., xlvi, 534-536, 542-648; xlvii, 195-201. See also Rot. Pari. Inediti, pp. xi-xiii, 65-66, 70, 143, 169, 185. The term " great council " is not, however, exclusively reserved for the council in parliament, but might on occasion refer to a ministerial council: see Baldwin, op. cit., p. 109, citing Ancient Correspondence, xlv, 149. 77 It is of interest to note that those who, BO far as we know, received no formal summons to parliament, but were present at the great council o£ 1305 (below, n. 80), were the king's nephew (John of Brittany), the king's illeeitimate son (John of Botetourt), the justiciar of Ireland, the seneschal of Gascony, the constables of the Tower of London and Bristol Castle, the keeper of the wardrobe and two other royal clerks. We must guard against any assumption that a writ of summons implies that its recipient attends parliament as of right or that without such a writ a man has no right to be present in the king's council in parliament. 78 Above, p. 9. '9 We should perhaps note that a like usage is very ancient. Thus Boger of Howden writes s.o. 1170: Peracta igitur sollemnitate Paschali, perrexit inde Lundonias et ibi magnum celebravi! concilium de eoronatione Henrici filii sui maioris et de statutis regni sui ... ("Benedict of Peterborough," Gesta, i, 4). Here magnum concilium appears to be merely descriptive. The assembly presumably consisted of the magnates who had come to court for the Easter crown-wearing, at which there had been an unusually large attendance, together with the ministers who were in London. 80 Maitland, Memoranda de Parliamento, no. 464. The composition of this body is analysed, ibid. pp. xlii-xliv.

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such representative was to be found sitting among the counsellors on any similar occasion. The great council is one of magnates and ministers: in fact, such a council in parliament as had been described in Fleta a few years earlier. With the decline in private petitions which sets in rapidly under Edward HI,81 so that, compared with their heyday under Edward I, they become a mere trickle in the fifteenth century, we cease to hear of the great council in this sense.82 As the petitory procedure in parliament evolved in the course of the fourteenth century, the convention arose that private petitions should come before the commons. It did not matter whether a petition was addressed to the council or, as became increasingly the practice, direct to the commons : in either case the commons had an opportunity of giving or withholding their support. But any decision upon a petition was taken by a committee of lords and ministers or " the lords of the council "—the wording varies, but any difference in language does not imply any distinction in procedure. By the end of the century the triers (still formally appointed) have ceased to exercise any significant function and have, in effect, been replaced by the commons; but the former great council in parliament is still active under other names and is exercising the same functions as of old.83 The change in usage had, however, meant that the term " great council " could, soon after the middle of the fourteenth century, be applied without ambiguity to those afforced councils which were considered to be an alternative to parliament for certain kinds of business. The fact that there were these alternatives and that the choice between them lay with the king is one we must stress, for it consorts ill with what has been conventionally taught as constitutional history. Already under Edward II we have specific reference to these alternatives when it was agreed that a difficult point of law should be referred either to parliament or to a convocatici prelatorum et magnatum de regno.84 The latter alternative cannot yet, it will be noted, be called magnum consilium, for that term is appropriated, for the time being, to the afforced council in parliament. Nor is the term used in 1340 when much the same alternatives are being considered : " the chancellor and the treasurer ai B.I.H.R., ix, 3-6; Rot. Pari. Inediti, p. xvii. 82 The latest instance we have met of this usage is a list o£ petitions to be answered " devant le roí et le grant congeli." The date is indicated by a petition from Berwick which speaks of " lee enhabitants sibien riches come povres " who " sont mortz en ceste pestilence " (P.R.O., C. 49, file 7, no. 26). The petition was presumably presented in the parliament summoned for February 9, 1351, the first to meet after the Black Death had ceased in the south of England. 83 T.R.H.S., 4th Ser. xxviii, 34-36. M noi. Pari, i, 353-355.

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are minded to have summoned a parliament or a council of magnates and commons," "5 if the king, who is abroad, desires a subsidy.86 But in 1386 Richard II could use the term unambiguously when he informed Pedro IV of Aragon that complaints of the unlawful seizure of the goods of Aragonese merchants by the English fleet would be dealt with " ad nostrum proximum parliamentum vel magnum concilium." 8r This was on September 12 and the sequel is instructive. A parliament sat throughout October and November, but there is nothing to suggest that the matter was considered there. This may be because the merchants had addressed a petition to the council, by whom the two admirals of the fleet were required to appear to defend their action. Finally, after considering the evidence on both sides, the council gave judgment on December 15 in favour of the merchants.88 Since a difficult question of international law was involved, we may perhaps assume that the council was appropriately afforced, but there is no direct evidence to show that the final hearing or any of the proceedings took place before a " great " council. An earlier case affords a rather better illustration of the relation between a great council and a parliament. In the parliament that sat in October 1382 a petition was presented challenging the authority of the Prerogativa Regis—which we may perhaps describe as a pseudo-statute—by virtue of which the chancery had attempted to enforce the alleged rule that female tenants-in-chief of whatsoever age might not marry without the king's licence. Why the issue was not determined while parliament was in session is not apparent, but in any case the matter was referred to the council for decision. Consequently a great council met in December at which there were present all the justices, the Serjeants and many others learned in the law as well as lords and prelates, who were, of course, the permanent element, the " lords of the council." The lords and prelates asked the judges and lawyers for their opinion and were told that the Prerogativa Regis was not considered to be a statute and that the article upon which the chancery relied had not heretofore been observed.89 These two cases illustrate sufficiently the position as it had evolved under Richard II, when a great council included no elective element. The proceedings at the great council which met at Winchester in June 1371 illustrate an earlier stage in the 85

P.B.O., C. 49/7/10: " et sur ce le chaunceler et le tresourer sount avisez affaire assembler un parlement ou un conseil des grauntz et ceux de la commune, si les countes qui sont attitlez au privé conseil se voelent assentir." The date is apparently June-November 1340, when the king was in Flanders. 86 " ascune aide covenable. " 87 E. Perroy, Diplomatic Correspondence of Richard II, p. 41. 88 Baldwin, King's Council, pp. 507-510. 89 C.C.R., 1381-1385, pp. 234-235.

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evolution and aßord, as it were, a link between the great councils of the first half of Edward Ill's reign, which resemble the contemporary parliaments in their composition, and the great councils of the later fourteenth century. It will be recalled that the parliament which met at Westminster in the previous February had left certain of the commons' petitions unanswered and had also left in confusion the assessment of the aid that had been granted.90 The great council was, in effect, an adjourned session of that parliament, but only one knight from each county and only one representative from each town that had been represented at the parliament were required to attend.91 The business was confined to the revision of the hopelessly inaccurate assessment of the aid and the formal announcement of the replies to the commons' petitions, which had been prepared in advance by a committee of the lords.92 So closely was the work of this great council, as well as its personnel, identified with that of the preceding parliament that in the petitions of the commons in 1372 and 1373 it is called the " parlement tenuz a Wyncestre." 93 Whatever may have been the reason for summoning great councils with a composition similar to that of parliaments in the early years of Edward III, it is clear that great councils became a less elaborate and less cumbersome device for dispatching business which might otherwise have come before the council in parliament. This is explicitly stated in the writ summoning a great council in 1402: this council was substituted for a parliament that had been summoned and then cancelled, in order to dispatch the business speedily with the least trouble to " our people." 94 Even in the fifteenth century, when parliament has developed specialised functions in the spheres of legislation and taxation, there is yet a large province in which a great council is as effective a means as parliament for dealing with public affairs. If there is no question of statute-making or general taxation,95 it is simpler and cheaper to attorce the king's council by summoning a " great council " than it is to afforce the king's council by summoning a parliament. That great councils and parliaments were regarded in the mid-fifteenth century simply as alternative administrative devices is strikingly Rot. Pari, ii, 304 (nos. 8, 10). Lords' Reports, iv, 650-652. The writs of summons do not speak of a great council. 92 Rot. Pari, ii. 304 (noe. 8, 10-13). 9 " Ibid. pp. 313 (no. 41), 319 (no. 21). 94 B.I.H.R., xi, 158-160: "pur tost remedier as susdites busoignea au meindre vexacion de nostre poeple. " 95 The last occasion on which a great council appears to have granted what may be called general taxation was in 1371, but to this council representative merchants were summoned (above, p. 17, n. 74). 90

91

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illustrated by a document of November 4, 1445.96 This is a warrant by the king authorising payments to Richard Baron and Symond Edward, " husshers of oure parlement and great counsaill chambres." The payments, be it noted, cover a series of meetings, set out in chronological order, all presumably having common attributes. These meetings are : (a) the great council at Westminster in the Trinity term after the parliament finished at Reading (i.e., February 1440); (b) the council at Westminster in the following Michaelmas term (1440); (c) the council at Westminster in the Midsummer term 1441 ; (d) the Lenten parliament at Westminster in 1442; (e) the great council at Westminster in the Easter term 1443; and (f) the " present " parliament (which met on February 25, 1445, and, after three adjournments, was dissolved on April 9, 1446). Attendance at a parliament is rewarded by a payment of 100 shillings and attendance at a council by a payment of fifty shillings, the reason doubtless being that a parliament lasted longer and caused more trouble than a council. No distinction is drawn between great councils and other councils and it is not evident why the adjective was applied to some and not to others: it is clear, of course, that they were not ordinary meetings of what we may for convenience call the " privy council." " The fact that such afforced councils were frequently summoned goes a long way to explain the infrequency of parliaments at certain periods in the fifteenth century.98 The parliament that sat at Westminster from November 12 to December 21, 1439, and was adjourned to Reading on January 14, 1440, being dissolved on February 9, was followed by three afforced councils, one of which is qualified as " great," before the next parliament met at Westminster on January 25, 1442, to sit until March 27. A great council in the Easter term 1443 filled the interval between that parliament and the prolonged parliament that sat, with recesses, from February 25, 1445, to April 9, 1446. The lesson to be drawn from these facts is that, though the commons might be infrequently summoned to parliament, the lords of the council were formally 9« P.E.O., E.404/62, no. 61. We are inclined to think that the privy council of sworn counsellors was more ancient than Baldwin supposed and had a longer continuous existence (King's Council, pp. 105-111). It is difficult otherwise to explain the reference in 1340 to the earls " qui sount attitlez au privé consail " (above, p. 20, n. 85). 98 For those with which we are concerned here see the Interim Report of the Committee on House of Commons Personnel and Politics (1932), pp. 82-83. 97

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consulted with fair regularity, either in parliament or, as the phrase was, " out of parliament." " We will say no more of this later period of parliamentary history, for, though it has been necessary to say so much in order to elucidate the relation of great councils to parliament, further discussion of the fifteenth century might obscure the immediate purpose of this essay. It has been an inevitable consequence of the equal competence in many matters of the afforced council in parliament and the afforced council out of parliament,1 that difficulty has arisen, or has been imagined, in distinguishing between the two, though there is, in fact, ambiguity only when such records as have survived do not make the distinction clear. The evidence may be sometimes indecisive; but can it be seriously questioned that the best, the only reliable, guide both to medieval institutions and to the corresponding medieval nomenclature is to be found in contemporary records ? If these make it apparent that a certain meeting of the king's council was deemed to be in parliament, then we must accept their evidence, whatever preconceptions to the contrary may be fashionable among historians at the moment. Otherwise we shall find ourselves in the predicament of Gaillard Lapsley when, having committed himself to the view that the assembly summoned for September 30, 1399, was not parliament but a " convention of estates," he was confronted with the most positive evidence that it was termed a parliament by contemporaries.2 We must frankly recognise and accept the anomalies of medieval procedure, not least the anomalies of the revolutionary parliaments of 1327 and 1399, which cannot be made to fit into any consistent theory of constitutional law.3 The historian may at times be forced to resolve the inconsistency of contemporary records by stigmatising one or more of them as erroneous, but to quarrel with records without abundant 99

See following note. These phrases may be justified by the minutes of council of November 24, 1433, where reference is made to grants to the duke of Bedford " sumtyme by th' ordinance of the Kynges greete consail in parlement and sumtyme by th'avis and ordinance of the Kynges consail out of parlement " (Nicolas, Proceedings ana Ordinances of the Privy Council, iv, 185-186). 2 Lapsley's first article appeared in E.H.R., xliv, 423-449, 577-606. That he had overlooked the evidence of Henry IV's coronation roll was pointed out in E.H.R., lii, 39-47. Lapsley endeavoured to meet the difficulty presented by this evidence in E.H.R., lui, 53-78. Lapsley's articles, in a revised form, were included in a collection entitled Croirn, Community and Parliament in the later Middle Ages, pp. 273-373, a volume he did not live to see through the press. The term " convention of estates " was applied to the assembly by the Lords Committees : no such phrase was known in the Middle Ages. 8 If the validity of the parliament of September 30, 1399, is questioned on theoretical grounds, so also must the validity of the parliament summoned for October 6, 1399: it was highly anomalous. See the article in B.I.H.R., xvi, 357-143, on " The Elections to the October parliament of 1399," where attention is drawn to the sheriffs' returns which were unknown to Lapsley. 1

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cause is to engage in a desperate contest.* Our present concern, however, is not with the fine-spun arguments of political theorists seeking to reconcile the arbitrary acts of times of crisis with some supposititious rule of law, but with the humdrum parliaments and councils of everyday life. And since the likeness of afforced councils, whether in or out of parliament, was as evident to contemporaries as it is to ourselves, we must allow for some confusion in the minds of the less well informed, some contemporary errors of description,5 which may mislead and may, in the end, leave us in doubt. We may lack the authoritative text which would decide the issue. A single example will suffice to explain the kind of difficulty that may sometimes arise. III. THE ASSEMBLY OF MAY 1306 On April 5, 1306, writs were addressed to the spiritual and temporal lords requiring them to be before the king and his council at Westminster on May 30 following to treat and ordain in the matter of an aid for knighting the king's eldest son. The sheriffs were addressed in similar terms and were required to send two knights and representatives of cities and boroughs, as well as sufficient proctors or attornies of heads of religious houses who did not attend in person.8 On the day named the knights of twenty counties and the representatives of at least five boroughs seem to have been already at Westminster, for writs de expensis dated May 30 were issued in their favour. In the close roll upon which these writs are enrolled there is a side-note: De expensis militum et burgensium qui venerunt ad parliamentum apud Westmonasterium.' Of the business transacted at Westminster on this occasion we have a good deal of knowledge. The king, we know, was there or in the immediate vicinity between May 21 and June 9 or 10. On May 27 an Ordinatio Foreste and the Statutum de Coniunctim Feoffatis, both enrolled contemporaneously on the statute roll, were issued at Westminster in the form of letters patent: neither contains any reference to prior consultation with prelates, magnates or others, nor is there any mention of the king's council or parliament.8 * To save his original contention Lapaley felt obliged to dismiss as a blunder the opening sentence of Henry TV's coronation roll (E.H.R., Hi, 55; p. 344 of collected papers). The sentence, however, was certainly drafted with the utmost care: see B.I.H.R., xvi, 143 n. * Sir Maurice Powicke cites an admirable example in The Thirteenth Century, p. 346: a council in 1291 is called the "parliament at Abergavenny." We find such misapprehensions even as late as 1353. Fourteen proxies by heads of religious houses have survived (P.R.O., C.49/46/28-41) for the great council of September 23 of that year (above, p. 16). The majority term the meeting consilium, but the abbot of Peterborough calls it parleamentum (no. 36) and the abbot of Thorney parliamentum sen consilium (no. 37). « Pari. Writs, i. 164-165. ' Ibid. i. 177-178. s Statutes o/ the Realm, i. 145-149.

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And then, between the end of the Easter term and the beginning of the Trinity term, that is late May or early June, there was issued an ordinance of greater immediate importance.9 In the exchequer it was given this title: Ordinano f acta per dominum regem, super quibusdam tangentibus regnwm.10 It has three subjects: trials by justices of trailbaston; the appointment of lieutenants to act on the king's behalf in England while he was absent in Scotland; the rescission of a previous decision which would have removed the chancery and exchequer from Westminster during the king's absence. Although this ordinance is not enrolled on the statute roll, presumably because its provisions were transitory, it was, on the king's instructions, enrolled in both chancery and exchequer.11 From its terms it was evidently intended to have a wider circulation, for it contains an elaborate apologia for delaying the business of the king's bench in order to free the chief justice, Roger Brabazon, for sessions of trailbaston. We need not go into further details of this remarkable instrument except to note that, in form, the ordinance consists of direct instructions by the king himself: as in the companion pieces of legislation, there is no word of consultation with the magnates, no word of parliament or council. Yet it had certainly become the practice under Edward I to mention the circumstances in which legislation had been promulgated and, when legislation had been considered in parliament, the fact had, at least usually, been mentioned.12 Let us turn to some other items of business transacted at Westminster in these few weeks. Between May 21 and June 7 a good many letters of privy seal were issued, addressed for the most part to the chancellor of Scotland: these letters seem undoubtedly to have been based upon petitions to the king.13 We know of no nie or roll of petitions presented at the assembly summoned for May 30, but there seem to have been other petitions presented beside Scottish ones. It is evident that the barons of the Cinque Ports, who, as we shall see, were present, took the opportunity of making a plaint to the king.11 The chancery rolls do not, however, suggest that there was much activity of this kind.15 The last instrument we need note is the long memorandum reciting the writs of summons, For the text, see C.C.R., 1302-1307, pp. 454-455. It is evident from the opening words that the Trinity sittings have not begun. P.R.O., E. 159/79, K.E. Memoranda Eoli, 34 Edward I, m. ild. Following the text in the Memoranda Eoli there is this note: Et sciendum quod Johannes de Benated, cancellarius regis huiua scaccarii, detulit hie ordinacionem predictam et earn ex parte ipsius domini regis precepit irrotulari. 12 Statutes of the Realm, i. 71, 99, 104, 106-107, 111. 136, 142-145. 13 Palgrave, Documents illustrating the History of Scotland, pp. 302-306. i* C.C.R., 1302-1307, p. 391. 13 The calendars of charter, close, fine and patent rolls do not suggest unusual activity nor is there any reference to petitions. 9

10 11

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detailing those who were present before the king's council, and setting out the terms upon which the twentieth and thirtieth were granted for the knighting of the king's eldest son and for the prosecution of the Scottish war 19 : there is no mention of parliament, as there is, for example, in the documents connected with the fifteenth granted at the parliament of Lincoln in 1301.w Here then we have nearly everything conventionally associated with a medieval parliament: the presence of representatives of the commons, legislation, taxation, petitions.18 But can we be sure that the assembly was a parliament? It had certainly been the intention to hold a parliament in May 1306, for the prior of Goldingham had been adjourned from the parliament that had met at Westminster in September 1305 to the parliament immediately following, which was appointed to meet after Easter, to wit on the morrow of the Ascension.19 But that day fell on May 18 in 1306, and, since it is quite certain that the king and his council were not at Westminster for at least a week thereafter, it is also certain that parliament did not meet as intended. The meeting may have been postponed; but we have no record of a postponement, and there could hardly have been a postponement until the thirtieth, the date appointed in the only writs of summons of which we have knowledge and which do not mention parliament. In the first place let us note that legislation was promulgated and the hearing of petitions begun before that date. Secondly, relatively few of the magnates were present in person: three bishops, five earls, eleven barons. Perhaps to the barons we might add Robert Burghersh, but he was present in his capacity as warden of the Cinque Ports and he brought with him certain barons of the Ports. Moreover, he was not a recent arrival, for he had been present in the king's council at least as early as May 27, when the king himself had presided over a court which decided a difficult legal issue.20 Most of the magnates, however, had been represented is Entered on both K.B. and L.T.R. Memoranda Bolls (E. 159/79, m. 40; B. 368/76, m. 50) : it was printed from the latter by B. Brady, Introduction to the Old English History (1684), App., pp. 29-30, and reprinted by Pasquet, Essay on the Origins of the House of Commons (1925), pp. 234^-236. " Pari. Writs, i, 106, 110. !8 It has been said that " in the same parliament two papal bulls were proclaimed, the one absolving the king from his oath to observe the articles o: 1297, the other anathematising Bruce " (Powicke, The Thirteenth Century, p. 715). The authority for this statement is not given, but it is presumably the Annales Londonienses in Stubbs, Chronicles of Edward I and Edward II, i. 146-147. The ceremony took place at St. Paul's on June 5. Doubtless it was in gome way connected with the Ordinance of the Forest and the demand for a subsidy for the Scottish war, but it can hardly be regarded as having taken place in parliament. 19 Rot. Parí, i. 180a. 20 Pari. Writs, i. 163.

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by proctors or attornies: the two archbishops,21 twelve bishops, eleven abbots, three earls, and so many barons that it was thought unnecessary to name them all.22 The writs of summons had not required personal appearance and evidently most of the magnates did not think the journey to Westminster worth the trouble. Whether from the king's point of view or from that of the magnates, the assembly could not have been regarded as of great importance, except financially, and, since the king's request could not be denied, that business could be done well enough by proctors and attornies. Such considerations are not in themselves sufficient to enable us to come to a conclusion on the character of the assembly. The great majority of Edward I's parliaments seem to have been politically unimportant, and we know too little of most of them to be able to affirm anything of the usual manner of summons. The absence of any note of writs of summons from the chancery rolls on many occasions when it is certain that a parliament was held may have the simple explanation that summons was not normally under the great seal, or that, like many routine instruments that passed the seal, the writs were not enrolled.23 Nor is it necessary to suppose that on every occasion there was a great concourse of magnates. It might well have happened that a thinly attended parliament met in the latter days of May and that representatives of the commons (and of the magnates not present in person) were not required to meet until a late stage. There is a parallel of a kind in 1290, when the knights were summoned for July 15 after most of the business transacted at a very prolonged parliament had been accomplished.2* Yet, even so, it is difficult to understand how it came about that in all the ample documentation proceeding from the assembly—or, to put the point less positively, from the king's sojourn—at Westminster in May and June 1306, there seems to be no reference, direct or indirect, to parliament, save only the side-note to the writ de expensis in the close roll. This entry, it is true, is supported by one other document, the record of an action brought in 1309 by one of the knights returned for Suffolk to recover his expenses from the undersheriff 25 ; but here again there is an apparent contradiction. The sum for which the knight sued was £7 10s., which covered the days 21

22 23 ™ «

The archbishop of Canterbury, Robert Winchelsea, had been suspended and had already left England for the Curia. Details in Brady and Pasquet, ut supra. Original writs were not enrolled nor, indeed, were a good many instruments that were not routine: for examples, see Maxwell Lyte, The Great Seal, pp. 363-366, 373, 382, and Law Quarterly Review, liv. 386n., 388-394. B.I.H.R., v. 144. Madox, Firma Burgi, pp. 100-101, from Exchequer Plea Eoli 2 Edward II (E. 13/32), m. 7.

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spent in journeying to and from Westminster as well as the days spent there. The day's allowance on this occasion is not known, but it must be an amount that will divide into 150 shillings without leaving a remainder. The amount cannot therefore have been four shillings, which was normally allowed later in the century, but it might have been one of the various sums allowed in 1324 and 1325—2s. 6d., 3s., 3s. 4d.26 If so, we have to account for not less than forty-five days, with a maximum of sixty. Deducting eight days conventionally allowed to the knights of Suffolk for their journeys, the sojourn at Westminster must have lasted at least thirty-seven days and this, if reckoned from May 30, would mean that the knights were dismissed, at earliest, on July 5, whereas the king had left Westminster nearly a month earlier. Is it possible that parliament—for the knight claimed that his attendance was at parliament—continued so long in the absence of the king? One misconception we must remove is that the commons were dismissed upon the day of their arrival at Westminster.27 This misconception arises from the fact that the writs of expenses were dated on that day, May 80. But exactly the same procedure was followed on the occasion of the parliament of Carlisle in the following year,28 and it is clear that the date of the writ, of itself, has no bearing on the length of session. Other documents may, however, give some indication. The general principle that a subsidy of onethirtieth and one-twentieth should be granted was apparently settled on May 30; but the details were not settled until the latter part of July, the earliest document being the commission to the taxours, dated at Beverley on the 22nd, followed by the forma taxandi et levandi on the 26th and by further instructions on the 30th.29 If we assume that many days were spent in discussing details with the knights and others summoned to Westminster, discussions which covered not only the incidence of the tax but also the appointment of taxours, we might have the explanation of the knights' long detention at Westminster. Were the knights, however, attending parliament ? The king's council seems certainly to have been, in a sense, at Westminster, for the " knights and others " appointed to assess and levy the subsidy in the counties were chosen by the council and some of these, though a minority, had been returned as knights of the shire. These facts obviously 28 Pari. Writs, ii. 313, 325, 346. " Pasquet, op. at., pp. 123, 152. 38 In the first instance writs were issued dated January 20, the day of assembly. but by reason of the long stay of the knights, other writs were granted in different form (Pari. Writs, i. 190-191). 29 L.T.E. Mem. Roll 34 Edward I (B. 368/76), m. 54; alao K.R. Mem. Roll (E. 159/79), m. 44. See also Rot. Pari, i. 269-270, and Pari. Writs, i. 17&179, for corresponding entries on the patent roll.

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suggest discussions between the knights and the council; but was it the king's council in parliament ? We have the word of the knight for Suffolk that it was, but he may have fallen into error, as he undoubtedly did when he said that the thirtieth from the counties was granted in the thirty-fifth year of Edward I. If, however, we explain away this evidence, can we explain away the sidenote to the enrolment of the writ of expenses ? We must concede that chancery enrolments are not free from error. The enrolment of the writs of summons for the assembly of May 30, 1306, will itself illustrate the fallibility of the enrolling clerks. The entries record the dispatch of writs to fifteen bishops, fifteen abbots, four abbesses, six earls. The record of the actual attendances accounts for seventeen bishops, eleven abbots, eight earls.80 It is perhaps a small point that no summons to the Cinque Ports is recorded, though representatives were certainly present.81 Seemingly these discrepancies can be explained only on the assumption that the enrolling clerk copied from an imperfect draft which was itself an altered draft for some previous enrolment. If this be so, then the sidenote may itself be no more than the reproduction of the sidenote to some earlier enrolment. In fact, the entry of the writ reproduces, with the most trifling changes, a similar enrolment on the close roll for the previous year.32 In the writ itself, as in other writs de expensis, there is no word of parliament. It was with hesitation that we included the assembly of May 1306 among the list of parliaments of Edward I which we constructed in 1928.33 There were, it will be agreed, good reasons for hesitation. If we were considering the evidence afresh, we might well incline the other way, despite the decision this would involve of rejecting as mistaken the testimony of two independent documents. Our object here is, however, to present to the reader the difficulties which may sometimes arise, even when we have seemingly abundant evidence, in deciding whether some particular assembly was a parliament or not. But instructed contemporaries would not have had any such difficulty. If they could hear of our doubts, they might wonder at the weight we were inclined to give to a careless error of a junior chancery clerk or of an uninstructed knight to whom one assembly he attended was very like another. They might ask whether the silence of the principal documents did not tell its own tale, whether we expected the draftsmen to state specifically that the instruments did not arise out of deliberations in parliament. Before we pass on let us add this comment. Though we were s» Pari. Writs, i. 164-165; Brady and Paeqnet, ut supra. 31 Above, pp. 23-26. 32 Pari. Writs, i. 156. ™ R.I.H.R. v. 147-148.

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to reject the conclusion that the assembly of May 30 was held in tempore parliamenti, we should not on that account reject the documents we have particularised as valueless for any light they might shed upon the history of parliament. Parliaments and other afforced councils are so intimately related that it is impossible to present a balanced history of the former without ample discussion of the latter, and recent writings on parliament constantly fail to recognise this fact. And one of these documents is of exceptional interest, the memorandum recording the proceedings on May 30. In it we are told that the magnates did not sit with the king's council when discussing the subsidy the king had demanded: the council were one party to the discussion and the magnates were of the other party. We say " of the other party " because the knights, who may have been the more numerous, sat with the magnates and apart from the burgesses. The discussions conducted in this way may not have been in parliament, but whether in or out of parliament, the facts seem no less significant. There is no reason to suppose that at like discussions in parliament the knights made common cause with the burgesses: their interests lay with the magnates. IV. JUSTICE IN PARLIAMENT If there was an undeniable likeness between parliaments and great councils, why then do we lay stress upon the difference between them? It is because, as we have said, the difference is fundamental. We believe, let us repeat, " that parliaments are of one kind only and that . . . the essence of them is the dispensing of justice." If this were not so, it would be difficult to understand why the author of Fleta should have described parliament as he did or how the Ordainers could have obtained the conception of parliament that patently informed their decisions on the functions to be discharged in future parliaments. It would be equally difficult to understand why the surviving records of the parliaments of the first two Edwards (the period with which we were primarily concerned when we first used the words we cite) are so overwhelmingly the result of the dispensation of justice. If we were writing of a later period, we would not employ quite the same words, though they apply with equal force to the early years of Edward III. Parliament, said Adam of Orleton, was convened " pro justicia omnibus exhibenda "; and Adam, as a minister and spiritual peer of long experience under Edward II and Edward III, can hardly be accused of error.34 But at no period, so it seems to us, can the s4 Register o/ John de Grandisson. p. 1544; B.I.H.R., ix. 1. Orleton was successively bishop of Hereford, Worcester and Winchester between 1317 and 1345. He was much employed on diplomatic missions and was treasurer from 1327 to 1337.

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essential purpose of great councils be so described. We know of no contemporary text that would lend colour to such a thesis nor, numerous as great councils were, have they left behind them any record suggesting that men commonly resorted to them to sue for justice.85 On the contrary, the abbot of Stanley, who sued in so many parliaments in the early years of Edward III, cannot have supposed for a moment that his cause would be advanced by petitioning the king elsewhere, though many great councils were held at that time. It would seem difficult to conceive of better evidence of the difference between a parliament and a great council at this period. Now, despite the wealth of contemporary authority, our conclusions on the nature and function of parliament have been challenged. To disarm criticism TP might perhaps have claimed, in the ironical phrase of Maitland's, that we were " not departing very far from the path marked out by books that are already classical." 38 Did not the Lords Committees declare, in the light of the evidence known to them, that in the reigns of Henry III and Edward I parliament was the name given to " an assembly . . . acting generally as the king's ordinary council or as a court of justice " ? 3T Did not Stubbs take the same view when he stated the obvious truth that " most of the early documents preserved under that name [sc. the Rolls of Parliament] belong to the sessions of the council for judicial business " ? 38 We do no more than assert that there were not several kinds of parliament, as classical teaching held, but one kind only and that if some parliaments were " general "—the contemporary adjective for those more numerously attended—they were nevertheless " ordinary " parliaments. Why then should the difference between the classical position and our own appear so wide? Is it not because we reject in its totality Stubbs's conception of a " parliamentary constitution " as " the English system " of government in the Middle Ages, even though the qualification be added that this " was by no means the whole of the system." B9 In the dust of controversy there seems to be some likelihood that Stubbs's own teaching may be obscured. Let us then recall his words. " We must be content," he said, " to understand by the name of parliament all meetings of the national council called together in the form that was usual at that particular time." 4& s5 At a later period an aflorced or " great " council might hear cases of special difficulty in the exercise of the council's ordinary jurisdiction; but that is an entirely different matter. 8 » Memoranda de Parliamento, p. Ixxxviii. s? Lords' Reports, i. 169. 38 Constitutional History, ii. 274. ss Ibid. p. 266. *° Ibid. p. 236.

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By implication he plainly excluded " the sessions of the council for judicial business " which were nevertheless called by contemporaries parliaments and which were " held, as the Provisions of Oxford had ordered, at fixed times of the year." 41 Under " the parliamentary constitution . . . the clergy, the barons and the communities " were " associated for financial, legislative and political action," 42 and, whatever had been the shortcomings in the past, the parliament of 1295 " was to be a model assembly . . . serving as a pattern for all future assemblies of the nation " 4S or, as Stubbs said elsewhere, was " a perfect representation of the three estates . . . and a parliament constituted on the model of which every succeeding assembly bearing that name was formed." 44 The diffuseness of Stubbs's exposition and his neglect to resolve apparent inconsistencies between statements made in different contexts render it far from easy to form a coherent picture of the parliament of his imagination. We have done our best, by piecing together passages sometimes wide apart, to present a true and intelligible account, without, we trust, distortion or misrepresentation. This, at least, can be said : not the most ingenious of interpretations can reconcile Stubbs's conception of parliament with Fleta's—the conception of parliament where " the king in council holds his court in the presence of prelates, earls, barons, nobles and others learned in the law." Stubbs's parliament is not conciliar in this sense: his parliament is a national council, " the concentration of the three estates." Nor, in Stubbs's view, were the representatives of the commons on an inferior footing to the other " estates " : " under Edward II, Edward III and Richard II," he asserted, " the third estate claimed and won its place as the foremost of the three." 45 The picture thus presented is not one of the English parliament of contemporary documents, not the parliament of history, but something imaginary masquerading as history. It is, if you will, anachronistic, a projecting into the past of a " parliamentary constitution " which Stubbs believed, without justification, to have existed in the later Middle Ages. One of the curiosities of historiography is that, just as French scholars have been inclined to minimise the part played by the 42 4i Ibid. p. 274. Ibid. p. 266 4S Ibid. p. 134. 44 Select Charters, p. 478. Sir Goronwy Edwards' statement that " Stubbs seems to have used [model parliament] only once, and even then in no more than an incidental way " is hardly adequate (Historians and the Medieval English Parliament, pp. 50-51). Two sidenotes, at pp. 133 and 236 of Volume II of the Constitutional History, have the phrase, while in the text (pp. 134, 236) the words used are " model assembly." It is not. however, the label but the doctrine with which we are concerned. •»3 Constitutional History, ii. 320.

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thirteenth-century parliament of Paris in administrative and political matters,*6 so English scholars have tried to wish away the judicial functions of the early English parliament. Stubbs was nearer to the truth than he imagined when he said that " the parliament of Paris [under Philippe le Bel] may be generally compared with the special judicial session or parliament of the council " or, again, " the point at which the two constitutions approximated more nearly than at any other in the middle ages " was the end of Edward I's reign in England and the reign of Philippe le Bel in France.47 It may seem astonishing that Stubbs could approach so near to the realities of history and yet persist in his dogma of an English " parliamentary constitution," which falsifies his teaching throughout. He could, indeed, keep himself in countenance only by asserting that parliaments were of three kinds and then, because the records did not bear him out, abusing the Rolls of Parliament for their confusion.48 It may be that, like A. F. Pollard, we are " insufficiently appreciative of the genius of Stubbs " 49 and, truth to tell, we are unimpressed by the attempts that have been made to justify his teaching. But let us examine the case that has lately been made against us. It has been said that the Provisions of Oxford describe the " function " of " pre-representative parliaments "—those, we take it, which were not, in Stubbs's phrase, " national councils "— and are inconsistent with our views.50 This, however, is to misunderstand the clause we cited at the beginning of this paper, a clause which prescribes that the " elected councillors " are to be present in parliament to survey the state of the realm and to discuss the common interests of the king and the kingdom. We agree that these terms, " le estat du reaume " and " les communes busoignes du roy et du reaume "—which we have elsewhere suggested might be rendered as " high politics " and " public affairs " 51—are much wider than the dispensing of justice, but the comment is irrelevant. The clause is not intended to describe the function of parliament 52 nor, indeed, does it give a full description of the function of the Fifteen, for it is difficult to see how the words of the clause could «e T.R.H.S., 4th Ser., xi. 159-161. 47 Constitutional History, ii. 278. *s /fod. p. 274. 49 "A. P. Pollard's brilliant study, The Evolution of Parliament, must be read with caution so far as it relates to the Middle Ages; the author was insufficiently appreciative of the genius of Stubbs " (McKisack, The Fourteenth Century, pp. 555-556). so Edwards, op. cit., pp. 16-18. Here " les cunseilers le rei esluz " is rendered "the continual council": we think this unfortunate, but our differences do not rest on minor points such as this. 1 s Select Cases of Procedure without Writ, p. clxvii. 52 We stress this point, for Professor Treharne seems to be under the same misapprehension as Sir Goronwy Edwards (E.H.R., Ixxiv. 598-599).

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be interpreted to cover the control that the elected councillors were to exercise over the king's grants, a control they might exercise in parliament or at some other afforced meeting of the council.53 The Twenty-Four are, in fact, prescribing in 1258 very much what the Ordainers were to prescribe in 1311 in an attempt to curb an irresponsible and extravagant king: but whereas the Ordainers made specific reference to the dispensation of justice in parliament,54 the Twenty-Four did not. We have therefore to turn to other documents to learn something of this aspect of the Oxford parliament and its successors. We look first at the Petition of the Barons which preceded the Oxford Parliament.55 Doubtless some of the clauses called for what we should term administrative action, but for the most part what was demanded was a change either in the administration of the law or in the law itself, a demand for what Bracton, who had just laid down his pen, would have called justice.56 And then in the parliament itself two noteworthy decisions were taken. One was to invite complaints of injustice from every aggrieved person in every county: these plaints were to be reduced to writing and presented to the justiciar in his eyre.57 The other was to instruct the judges and others learned in the law to consider before the next parliament " what ill laws and need of reformation there were." 58 At a later stage it was decided that the knights in each county, responsible for enrolling plaints, should appear before the council with their inquests in the following Michaelmas parliament 59 ; precisely what then happened is not clear, though evidently nothing more could be done by the council in parliament than to expedite the hearing and determining of the plaints.60 Of the labours of the judges we know more, for they resulted in the Provisions of Westminster, which were promulgated in the Michaelmas parliament of 1259 and, after some vicissitudes, achieved statutory form at Marlborough in 1267.61 It is true that these two 54 53 Above, pp. 8-9. Above p. 14. ss Anuales Monastici, i. 439-443: reprinted in Select Charters, pp. 373-378. so Bracton, fo. 107. The king's duty to do justice covers both " leges condere et iustitiam faceré." 57 Aúnales Monastici, i. 446, whence Select Charters, pp. 378-379. 58 From the text of the provisions in the Coke Roll: see our Provisions of Oxford, p. 33. r,9 M Paris, Chronica Maiora, vi. 396-397 (also in Annals of Burton and Foedera); C.P.R., 1247-1258, pp. 645-649; Close Rolls, 1256-1259, pp. 332-333. 80 One consequence of the examination of the knights by the council appears to have been the circular letter of October 20 counselling patience at the delay in hearing plaints and inviting fresh plaints: for two texts, see Shirley, Royal Letters of Henry III, ii. 130-132, and Annales Monastici, i. 453—455. si The tangled story has been told by F. M. Powicke, King Henry III and the lord Edward, pp. 398-402, 411-455. For the relation of the Statute of Marlborough to the Dictum of Kenihvorth and the Provisions, see ibid. pp. 547-549.

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matters were but two items in a wide programme of reform, which covered as well the Church, the Jewry and the royal households, but they were the two items which were pursued from parliament to parliament and they represent what everyone would agree was parliamentary business under Edward I. The other items we have named were not ordinary items of parliamentary business, for the Oxford parliament was a very unusual parliament, one to which, in Henry Ill's words, men came sworn " ad reformacionem status regni nostri." 62 This is not the purpose for which a medieval king normally summoned his parliament. And it is noteworthy that amidst all the discussion of high policy, the tempestuous debates between the king's friends and the dissident barons at Oxford, time was found for the hearing of an action that had been removed from the bench at Dublin. This, indeed, was such an action as was placed in the forefront of parliamentary business by the Ordainers, an action that had been delayed because the defendant pleaded that he could not answer without the king.63 It is difficult to conceive of any better evidence both of the continuity of parliamentary practice and of the truth that the dispensing of justice is of the essence of parliament. Of the parliaments held between 1258 and 1272 we have, with rare exceptions, few details. Of those held during the dominance of the barons it is safe to say that difficult questions of law were with some regularity referred to parliament to be determined, as well as questions which could be decided only by reference to royal records.64 One sentence from the record of one action is worth setting down here, an action between the abbot of Faversham and his men. The king, says the sheriff of Kent, has respited a distress until the present parliament (of Easter 1260) " eo quod voluit tam ipsi abbati quam hominibus suis predictis plenam coram eo in hac parte exhibere justiciam." 65 Of the parliaments, sixteen or so in number, held between 1265 and 1272, too little is known to permit us to make very positive statements, but two stand out : the parliaments at Kenilworth in 1266 and at Marlborough in 1267. The latter, as we have said, gave statutory form—that is the force of established law—to the Provisions of Westminster, which Henry, in his morbid hatred of the parliament of Oxford and all its works, «2 P.E.O., C. 62/85 (Liberate Eoli, 43 Henry III), m. 5. For a similar phrase without mention of parliament, see Shirley, Royal Letters of Henry III. ii. 127. fi3 Gal. of Documents relating to Ireland, 1252-1284, p. 95: for the Ordinances, see above, p. 14. «4 T.R.H.S. 4th Ser., v. 56-58, 60-62; xi. 155-156; Eichardson and Sayles, Select Cases of Procedure without Writ, pp. clxvi-clxvii, 91-92. «s T.R.H.S., 4th Ser., v. 62.

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had repudiated.66 The former is notable for the Dictum of Kenilworth, a striking illustration of the dispensation of justice.67 The Dictum, it is true, has found its place in the statute book with the scanty legislation of Henry III, but it is not the only instance of the inclusion of an anomalous item in medieval collections of statutes.68 In truth, while the Dictum touches other cognate matters, it is the record of an arbitration to determine and assuage the penalties incurred by those who had taken up arms against the king. The king, we are told, summoned his parliament to Kenilworth and there " it was agreed and granted by common assent and by the common council of the bishops, abbots, priors, earls, barons and all others that a body of twelve should be appointed to provide and ordain regarding those who had been disinherited as a result of the late war in England." 69 The result, of course, was an elaborate scheme for the " redemption " of their lands by the disinherited. Doubtless, when unprinted records are further explored, we shall get more light on the parliaments of Henry III,70 but we know enough to perceive that there is no discontinuity, that justice is dispensed there. Had it not been so, the character of Edward I's parliaments would have been inexplicable. It is remarkable, however, that none of the few petitions which have survived from Henry Ill's reign can be identified with any of his parliaments, while the flow of parliamentary petitions begins very early, if not from the outset, under Edward I.71 And at this point we must confront another difficulty that has been raised. Do not these petitions ask for the king's grace and do not many of them ask for something else than a judicial remedy ? 72 There is available the analysis of the petitions which Maitland edited: they do not all belong to one parliament, as he supposed, but they may be accepted as a good random sample for the early years of the fourteenth This is to assume, as it seems necessary to do, that the expression " Provisions of Oxford " covered the Provisions of Westminster: cf. Sir Maurice Powicke's note, King Henry III and the lord Edward, p. 549. It may be recalled that, fortified by his absolution by Alexander IV and Urban IV from his oath to observe the Provisions of Oxford, Henry repudiated them in 1262. Under pressure, he formally accepted them the following year, but was freed in 1264 by the Mise of Amiens, to which Urban IV gave his approval. 87 Statutes of the Realm, i. 12-17. es Eichardson and Sayles, The Early Statutes, pp. 40-44. 69 C.P.R., 1258-1266, pp. 671-672. 70 It is difficult to understand why Professor Treharne confined his researches to chancery rolls (and not all of these) in his paper on " The Nature of Parliament in the Eeign of Henry HI " in E.H.R. Ixxiv. 590-610. See our comments below, pp. 47-48. TI In Prynne's time there was a bundle of petitions in the Tower dated 6 Edward I : see below, p. 419, n. 1. 72 Edwards, op. cit., pp. 15-16. 66

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century.73 Apart from five " petitions of a general character by the estates of the realm "—words we should hesitate to adopt—the petitions fall into three groups : (a) petitions for legal relief in cases in which the king is concerned; (b) petitions for favours to be granted by the king; (c) petitions relating to private wrongs. With few exceptions the petitions in classes (a) and (c) ask for what may fairly be described as judicial remedies. Even in class (b) there are a good many which ask for relief from the consequences of the administration of justice or the operation of the law: pardon of penalties, delivery from gaol, leave to appoint attorneys, licence in mortmain, and so on. Out of these hundreds of petitions the great majority are concerned with judicial or quasi-judicial matters. And then let us notice that, when the knights and burgesses complained in the Easter parliament of 1309 that receivers of petitions had not been appointed, they described the nature of the petitions they had in mind : those concerning the wrongs (tortz) and grievances which could not be redressed by the common law nor in any other manner without special warrant.74 Are we mistaken in saying that they are describing, in the language of the early fourteenth century, petitions concerned with judicial or quasi-judicial matters ? The knights and burgesses were certainly not concerned on this occasion with petitions for special favours, petitions that might be presented at any time, but with such petitions as comprised the great majority of those presented in 1305. It might be argued—as is constantly argued in the High Court today, for the dividing line is very uncertain—that the replies to some of the petitions presented in ]305, though they touched the operation of the law, involved administrative rather than judicial action; but whittle down the judicial element as we may, we are confronted with a mass, the majority, of petitions which ask for justice. Nor were the Lords Committees or Stubbs in error when they recognised in the early rolls of parliament the records of judicial sessions of the king's court, however wrong their classification of those sessions might be. We do not need the mantle of Maitland to legitimate our own conclusions, when we have the corroboration of Fleta and the Ordinances', but it may be of interest to cite his conclusion on the nature of the parliament he was studying 75 : 73 For Maitland's analysis, see Memoranda de Parliamento, pp. 353-355. For an analysis of the roll he edited, see B.I.H.R., vi. 149-150. Two further membranes of the same character have recently been added to the roll (P.K.O., S.C. 9/12) : m. 13 contains Scottish petitions and m. 16 Irish petitions. The evidence provided by this new material in no way conflicts with the deductions to be drawn from the material previously available. 74 Rot. Pari, i. 444b. 75 Memoranda de Parliamento, p. Ixxxi.

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A new tribunal is evolved, or rather, two tribunals become three. We can see this development taking place in the pages of Bracton and Fleta. Bracton knows but two of those courts of which we are speaking: there are justices resident at the bench; there are yet more exalted justices attending the king's person. Fleta knows three: there are justices resident at the bench; there are other justices who fill the king's own place, but above even them there is another tribunal, " for the king has his court in his council in his parliaments. ..." Nor must we be misled by the form of petitions which ask for grace. " The audience of petitions in parliament," we have been reminded, " always involved the dispensing of grace, but by no means always the dispensing of justice." 76 Now, if a man sought a writ which was not " of course," what he sought was a writ " of grace "; but the writ he obtained was an original writ which varied little, if at all, from a standard formula.77 And when the chancellor's equitable jurisdiction developed in the later fourteenth century, the litigant who presented his petition asked for relief as a work of charity, and litigants continued to use these words for many a long day.78 Again, until very recently, if a subject was minded to sue the Crown, he must proceed, as a rule, by petition, as he had to do in the thirteenth century.79 These are niceties of procedure, sometimes expensive and vexatious niceties, but they do not go to the root of the matter. In all these cases, although the litigant asked for grace, he wanted justice. So it was with the vast body of petitioners in the first century of the history of the English parliament. At this point it seems desirable to attempt to clarify the position of the petitioner in parliament and to explain why parliamentary petitions have from very early times been placed in a class apart. It is to be remembered that, though parliament was, as Maitland said, a court, it was a very special kind of court. Over many centuries its sessions were, for the most part, irregular and there might be long intervals between one parliament and another, despite the attempts made from time to time to induce some ordered periodicity. In face of this difference between parliament and the ordinary courts of common law and equity, with their regular law terms, it may seem open to question whether petitioners to the king 7« Edwards, op. cit., p. 16. 77 Rot. Pari. Inediti, p. 234: cf. p. 18. 78 See the examples of bills from the reign of Eichard II onwards in Cal. of Proceedings in Chancery (Record Comm.), i. pp. ii-cxlvii. 79 Proceedings by petition of right were abolished by the Crown Proceedings Act, 1947. For the petition of right in the thirteenth century, see Select Cases of Procedure without Writ, pp. Ixx-lxxi, clxxxvi-clxxxviii.

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in council in parliament had a right to petition and to be answered in the same sense as a plaintiff in a court of common law had a right to writ and judgment or a plaintiff in a court of equity had a right to petition and decree. The procedure in all three cases differed widely. In parliament the king invited petitioners to deliver their petitions to the receivers at a certain time and place.80 He appointed triers or auditors to determine the answer or, where they felt unable to do so, to refer them to the great council. If this was a new departure under Edward I, the procedure must have had its origin very early in his reign, and while Edward modified the procedure, he did not initiate a new approach to the king; he regulated a flood of petitions that threatened to become unmanageable.81 This flood was a new phenomenon; but already when Edward became king, the petition, the plaint, oral or in writing, had a very long history in the king's courts.82 How should it have been otherwise, for the king is the fountain of justice ? " This is the reason," says Bracton, " why the king has been created and elected: that he may do justice to every man." 83 And were there not some famous words written well before Bracton's time: nulli negabimus aut differemus rectum et justician! ? 84 It is indisputable therefore that the subject had a right to petition the king, and the king invited him to exercise that right in parliament and, by implication, gave him a right to an answer. But this right was not an enforceable right: a right cannot be enforced against the king. The king might, indeed, fail to appoint receivers of petitions, though, if this happened on occasion, the failure seems to have been repaired as soon as possible after complaint had been made.85 And there has survived from the reign of Edward II a tell-tale wrapper with this inscription: Peticiones coram rege et magno consilio quibus non fuit responsum in parliamento convocato apud Eboracum anno xiimo.86 In general, however, every effort appears to have been made to answer petitions, even though this was not possible while parliament was in session.87 But then again, the king might not for long periods summon parliament, despite repeated statutes requiring annual parliaments 88; 8° See our remarks in Rottili Parliamentorum Inediti, p. ix. si E.H.R., xlvi. 534-536, 542-548. 82 As we have shown in Select Cases of Procedure without Writ. 83 Bracton, fo. 107. 84 Magna Carta, c. 40. ss B.I.H.R., vi. 75-76; viii. 73. se not. Pari. Inediti, p. 66. A similar occurrence was averted in 1362 at the instance of the commons (Rot. Pari., ii. 272, no. 31). 87 E.H.R., xlvii. 388; T.R.H.S., 4th Ser., xxviii. 35-36n. 88 Apart from the Ordinances of 1311, which were repealed, statutes were passed in 1330 and 1362 (Statutes of the Realm, i. 265, 374). Eeference was made to them in 1376 and 1377 (Rot. Pari, ii. 355; iii. 23), but thereafter they seem to have been ignored.

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and, as time went on, parliaments became more and more infrequent until, in the reign of Henry VII, it looked as though parliament might be dispensed with altogether.89 The right to petition and to be answered in parliament was therefore a qualified right, a right that diminished in importance in the course of Edward Ill's reign 90 and still further as the Middle Ages waned, though it does not seem that this was of serious disadvantage to the subject, who found in the Court of Chancery an ampler measure of relief than he was wont to find in parliament. This is not, of course, the whole story. In view of the importance that is usually attached to the part played by the commons in parliament some few words should be spared for them. They, too, as a body had the right to petition the king. It was the accepted doctrine in 1399 that the knights of the shire, at least, had the right to expose the grievances of the people and to sue for suitable remedies.91 The commons were perhaps more certain of a reply to their petitions than the private petitioner. To a complaint by the commons in 1339 that a full reply had not been given to all petitions and to a request that replies should be returned before parliament rose, the king answered that replies had been given to every petition presented by the commons in former parliaments before those parliaments had been dissolved and that, as regards private petitions presented in the parliament then in session, it was his wish that the auditors should determine them before they departed.92 But though the commons might have some advantage in this respect and though, as we have seen, they came to play a part in the expediting of private petitions, any right they had was qualified. The medieval king was unable to shake off the peers, for, as a lawyer writing under Henry VI said, " the king is intrinsicate within his council and may not do without them " 93; but he was able to rule without summoning parliament, without the assistance of the commons. There was no one to compel him to hold a parliament, and it is by no means certain that the rarity of parliaments and the consequent cessation of common petitions were resented by the country at large. 89 We may recall that Henry "VTI (1485-1509) summoned only seven parliaments, and only one in the last twelve years of his reign, so See our remarks in B.I.H.R., ix. 3-4. Sir Goronwy Edwards, approaching the matter from another angle, comes to much the same conclusion (ibid. xxvii. 47-50). 91 Rot. Pari. in. 420, no. 36. The source (the record and process of Richard II's renunciation of the throne) is suspect: but there is no ground for questioning this clause. 92 Rot. Pari. Inediti, pp. 270, 272. For a similar reply in 1362 when special arrangements were made to answer petitions marked coram rege, see noi. Pari, ii. 272, no. 31. 93 T.R.H.S., 4th Ser., xxviii. 25, where the passage is more fully cited.

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Before we pass on, it will be convenient if we refer to a sentence of ours which has caused difficulty. Referring in particular to the parliaments of Edward I, when petitions in any number are first known to have been presented, we remarked that a general understanding grew up that a petition presented to the king in council in parliament would receive a reply before the close of the session.94 It has been suggested that this was a modification of a remark made some years before when we spoke, as we do in the present essay, of the right of the petitioner to an answer.95 Instead of speaking of an understanding, we might have spoken of a convention or a custom, the ultimate basis of so many rights that are enforceable in English courts today 96 ; but we do not think that " understanding " inappropriately describes the source of an unenforceable right. That this understanding had hardened into a right "before the end of Edward I's reign may be fairly inferred from the proclamation inviting petitions made at the Lenten parliament of 1305 97 and from the king's reply to a protest in 1309 that henceforth receivers would be appointed in his parliaments and that petitions would be settled (delivrés) by his council, as was the practice in his father's time.98 That this right was recognised in later reigns seems unquestionable. We have already cited the king's reply to the commons' remonstrance in 1339: if this is something less than a recognition not only of a right to petition but of a right to a reply, it is difficult to suggest an alternative description. The Modus tenendi parliamentum puts the position in stronger language: parliamentum departiri non debet dummodo aliqua petitio pendeat indiscussa vel ad minus ad quam non sit determinate responsum, et si rex contrarium permittat perjurus est." That work of fiction commands a higher authority among historians than we can concede, but if its language be preferred to our own, we should, in this matter, be substantially in accord. But to resume. We have said that parliament was a court of a very special kind. Its sessions were irregular; it had no judiciary 94 95

96 97 »s 99

Rot. Pari. Inediti, pp. ix, x. B.I.H.R., viii. 76; Plucknett in The English Government at Work, i. 88-89: Edwards, op. at., p. 22. Sir Goronwy Edwards speaks of " a legal right to have an answer." A legal right is usually contrasted with an equitable right: we presume that an enforceable right is meant. In English law " custom " is restricted to a locality and the word is best avoided when we speak of a general right. Memoranda de Parliamento, p. 3. There is no reason to suppose that this was the first occasion on which such a proclamation was made. Rot. Pari., i. 444b. This is the opening sentence of the chapter De partitione parliamenti in the "English" Modus: it is based upon a more readily comprehensible sentence in the " Irish " Modus. We may refer to our forthcoming critical edition of these tracts for further explanation.

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of its own; it had no permanent clerical establishment. There was no continuity of process: if the remedy offered in one parliament proved ineffectual, the petitioner must begin de novo in the next and continue in the same way for, it may be, a score of parliaments. By contrast with the courts of common law or with the parliament of Paris, the English parliament was, throughout the Middle Ages, as casual as it was occasional. And yet its records were carefully preserved. Petitions were filed and kept from very early in Edward T's reign,1 and enrolments, at first perhaps only of the decisions of the council in parliament, were made at the same period.2 Despite the very great losses that have been incurred from the fourteenth century to the eighteenth, the bulk of medieval parliamentary records yet remaining, though small compared with those of the courts of common law or of the parliament of Paris, is still considerable. A modern edition of them—which would be by far the greatest contribution to the study of the history of parliament that could be suggested—would need at least a score of octavo volumes. But what has survived to record the activities of the numerous great councils, even more casual and occasional, from the reign of Edward I onwards ? We know of one enrolment, that of the proceedings at the great council of September 1353, proceedings of a very exceptional kind s : of files or rolls of petitions presented in great councils we know nothing, and we can say with some confidence that no rolls, apart from that of 1353, were known to the chancery clerks in the fourteenth century.4 There can be but one explanation of this difference, but one explanation of the absence of any contemporary reference to receivers and triers of petitions in great councils: in this respect parliament was sui generis. When therefore it is denied that under Edward III and his predecessors there was a clear distinction between parliaments and great councils—if, for convenience, we may so designate afforced councils that were not parliaments—and when it is questioned that the difference lay in the right given to the subject to petition and to be answered, we have but to point to the clear and compelling evidence, positive and negative, of contemporary documents to establish the position for which we have contended. It is no longer disputed, as it was by Stubbs,5 that the dispensing of justice was a function of parliament; but objection is still taken We have Prynne's word for it that in the seventeenth century there was in the Tower of London a file of 6 Edward I (Abridgement of the Records in the Tower, p. 14). What appears to be this file is printed Rot. Pari., i. 1-14. 2 Rot. Pari. Inediti, p. xv. 3 Rot. Pari, ii. 246-253. * See the inventory of chancery records of 1381 in P.R.O. List of Chancery Rolls, p. vi, and "Rot. Pari. Inediti, pp. xx-xxi. * See above, pp. 31-32. 1

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to our statement that the essence of parliament—we spoke with particular reference to the parliaments of Edward I and Edward II—is the dispensing of justice. It may have been a mistake on our part to use a metaphor. " Essence " we have been reminded, as the word is used by philosophers and theologians, is that which constitutes the being of a thing." But on this occasion, as the context showed, we were speaking not as metaphysicians but as historians; and had it occurred to us that there was doubt as to our meaning, we might have used another phrase or explained that " essence " had here the ordinary meaning of " distinctive quality "r ; the quality which arrested the attention of the author of Fleta and the Ordainers; the quality without which there would have been no volume one of the Rolls of Parliament nor other printed texts that supplement it. The facts are not really in dispute. The one constant attribute of parliament, so far as our evidence goes, was, for the better part of a century, the hearing of private petitions, petitions which in most instances asked for justice. But that is not the sole evidence for the judicial function of parliament. To give but three examples : the statute called Rageman provided that offenders should be brought before the king in parliament 8 ; the Statute of Winchester required the justices to report to the king in parliament breaches of the provisions for maintaining the peace 9 ; special commissioners were appointed in 1309 to hear complaints of tortious prises and to bring those guilty before the council in parliament.10 We could add much more evidence of a like kind.11 V. THE COUNCIL IN PARLIAMENT As, we believe, we were the first to demonstrate, business in great variety came before parliament in its earlier years.12 Nor would there seem to be any reason why any matter that might come before the king's council should not come before the king in council in parliament, if this were a suitable occasion. We have at no time suggested that, because the distinctive quality of parliament was the dispensing of justice, this was its sole purpose, though we have emphasised, and rightly emphasised, the unique importance of this function in face of the denial by Stubbs that parliament, in the true Edwards, op. cit., p. 12. ? Let us cite a lexicographer'ä quotation for this sense: The essence of Addison's humour is irony, s Statutes of the Realm, i. 44. 9 Ibid. p. 98. 10 Pari. Writs, II. ii, App. 24-25. 11 It is. however, hardly necessary to look beyond the placito in volume one of the Rottili ParliamentoTum listed in the table of contents. 12 B.I.H.R., v. 13G-143; vi. 71-72: see also Rot. Par/. Inediti, pp. 1-7. 15

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sense, as he conceived it, had such a function at all.13 If his doctrine—the doctrine that parliament is a " national council," " the concentration of the three estates "—had been historically valid, then the king's council, which dispensed justice, would have stood outside parliament, and Maitland's suggestion (for he professed to go no further) that " a session of the king's council is the core and essence of every parliamentum " " would have been absurd. In truth, it is Stubbs's doctrine that is unwarrantable, and no one would venture to defend it; but there is still, it would seem, great reluctance to abandon the inferences that proceeded from it. The imaginary parliament of Stubbs, or something very like it, has been denominated the " representative parliament " in contradistinction to the " pre-representative parliament," " and we have been presented afresh with a picture, made familiar in another guise by Stubbs and Pollard, of a plurality of parliaments. The dichotomy seems, in any case, to be false, since it suggests that there was a point of time at which " pre-representative parliaments " ceased and " representative parliaments " began. If, however, we take our starting point in 1258 and continue to 1327, we find that, over a period little short of seventy years, parliaments to which representatives of shires or towns were summoned, for one purpose or another, alternated with parliaments to which there was no such summons. Parliaments of the latter type predominated, it is true, until the year 1300 and parliaments of the former type thereafter 16; but there is no " pre " or " post." " Pre-representative " and " representative " parliaments co-existed. There were not two kinds of parliament, though in some there was business for which it was deemed desirable to summon representatives of the " commons "; but, as Pollard said, " they probably took a less active part in parliament than the audience does in a public meeting of today." " The true dividing line is 1327. From 1327 onwards all parliaments included representatives of the shires and boroughs. The intention behind this development was doubtless political, but, as we have explained, a significant change had taken place. The emergence of the doctrine of peerage meant that the barons could no longer be petitioners, no longer speak as the mouthpiece of the commune.18 In 1306 the knights of the shire could form one body with the barons.19 In 1327, although they are still quite distinct is n « is

Above, pp. 31-32. Memoranda de Parliamento, p. ixxxviii. Edwards, op. ct't.. pp. 8-24. We have summarised the facts, so far as they are known, in the Handbook of British Chronology (ed. Powicke), pp. 339-340. if Evolution of Parliament, p. 59. is T.R.H.S., 4th Ser., xxviii. 25-27. i» Above, p. 30.

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from the burgesses, the knights act in common with them: a step has been taken which will in process of time give parliament a house of commons. During the reign of Edward II there had been wrought, unwittingly and without foresight, a great constitutional change. The significance of this change may not at first have been appreciated, but before long Bishop Granson of Exeter could put the position in a striking metaphor. " By its nature the substance of the Crown lies primarily in the king's person, as head, and in the peers of the land, as members . . . and in this way the Crown is so conditioned that there cannot be severance without dividing the kingship." 20 As was said a century or so later, " the king is intrinsicate within his council." 21 If, on the other hand, the doctrine of peerage was significant in giving the representatives of shires and boroughs a constant and continuous function in parliament, that of presenting common petitions, it was equally significant in giving a constitution to the council, whether in parliament or out of parliament. There was, however, no sudden or marked breach with the past. Bishops, earls and barons had hitherto been present in the council with judges and ministers 22 ; but henceforward the status, as well as the number, of the king's servants in the council was to decline while the status of the peers was to be exalted.23 Though the constitution of the council might change, its dominance in parliament was undiminished. Obviously the work done by the council in parliament varied with the business brought before parliament. Prior to 1327, taking one parliament with another, business other than judicial can have occupied relatively little time. We should perhaps emphasise that whatever business was transacted in parliament was council business, and though the majority of petitions were disposed of by a small body of triers and never reached the great council, all were, as the king said in 1309, " delivrés par son conseil." 24 We may think, with Stubbs, that such business was unimportant; and it may well be that in the eyes of the council the dominant interest in some parliaments was not the highly personal and largely routine answering of petitions but the issue of war or peace or taxation or legislation, though, even so, there is no need to postulate large assemblies on these occasions or anxious debates.25 Such matters came before parliament because it -° Register of John dc Grandisson, ii. 840.

21

Above, p. 40.

Two good examples in 1276 are to be found in Pari. Writs, i. 5-6. 2 3 A striking illustration of this truth is to be seen in the changing composition of the panels of triers of parliamentary petitions (E.H.R., xlvii. 385-386). See also the document cited above, p. 20, note 85, where the decision whether to summon a parliament or great council apparently rests with the earls appointed to a privy council. 24 noi. Pari., i. 444 (no. 6). 25 Even apart from what we may perhaps describe as committees of the council, it is not to be supposed that a large attendance was necessary at every meeting

22

XXVI 46

Parliaments and Great Councils

was convenient that they should be discussed then, not because it was imperative that they should be determined only in parliament. They might equally be discussed by the council elsewhere than in parliament, and the principle that parliament was the proper occasion for their discussion was hardly established before the fifteenth century. The issue whether to go to war or not came before a great council in 1401, and it is clear from the council minute that it was uncertain whether the assent of parliament was necessary, though the balance of opinion seems to have lain in that direction.26 In the previous year, a great council had decided to avoid calling a parliament, which would have been necessary if the " common people " were to be taxed, but it had been resolved that the lords spiritual and temporal should grant an aid.27 In Ireland in the fourteenth and fifteenth centuries there was no questioning the competence of a great council to decide that a general tax should be levied 28; and the difference between English and Irish practice seems not to lie in the lesser authority of a great council in England but to arise from the long exclusion of the commons from English great councils. Whether a statute could be made elsewhere than in parliament seems still to have been an open issue in 1353. The attitude taken by the commons towards legislation in great councils ensured that statutes were henceforth made in parliament 29 ; but so far as we can judge, this was a new development, quite unexpected by the government. When, therefore, it is said that parliament is omnicompetent,30 it should be added that this is because the king in council is omnicompetent. Whether the council sits in parliament or not is a matter for the king's discretion, although gradually conventions arise which limit the exercise of his discretion. We cannot, as Stubbs seems to have done, approach the question of the functions of parliament a priori. What those functions were must be decided on evidence, by the simple method of enumeration. But we must take precautions lest we give undue weight to some part of the evidence. It will be recalled that Pollard believed that there was " a complete discrepancy between the Rolls of Parliament

26 27 28 za so

of the council in parliament. For example, the terms of the Statute de Bigamis of 1276 were settled at a relatively small, mainly professional, meeting and the text was afterwards brought formally " coram domino rege et eins consilio." These words do not imply that the earlier gathering was not a meeting of the council nor that those present there did not attend the later meeting, though this was obviously more dignified and authoritative (Statutes o/ the Realm, i. 42). Nicolas, Proceedings and Ordinances of the Privy Council, i. 144-145. Ibid. pp. 102-106. Richardson and Sayles, Irish Parliament in the Middle Ages, pp. 112-114. 155-156, 234-237. B.I.H.R., viii. 74: cf. Eichardson and Sayles, The Early Statutes, pp. 31-36. Edwards, op. cit., p. 24.

Parliaments and Great Councils

XXVI 47

and the so-called Parliamentary Writs," S1 This discrepancy is a little exaggeratedS2 and its significance is not grasped. What Pollard had, in fact, discovered was that for the great majority of the parliaments of Edward I the writs of summons are not recorded. Apparently there were enrolled only those writs issued when there was business coming before parliament that was something out of the ordinary, when it might be particularly desirable to afforce the council in parliament. To treat the recorded writs as a representative sample, testifying to the nature of parliament or of the business ordinarily transacted in parliament, would seem to be manifestly illegitimate. Rather they testify to what was exceptional. Stubbs, perhaps, in a muddled way realised this fact when he excluded from his category of true parliaments " the sessions of the council for judicial business," for which no writs of summons survived. His initial error was to treat the exceptional as the norm; but beyond this, he, like others before and since, gave a weight to the evidence of writs of summons which was quite unwarranted. A similar fallacy appears to underlie Professor Treharne's recent attempt to ascertain what conception chancery clerks had of parliament under Henry III by observing the occurrence of the word " parliament " in two sets of chancery rolls and the context in which the word in each instance is used.33 Unfortunately there are proportionately even fewer writs of summons enrolled in the relevant period of that reign than in the reign of Edward I, and those to be found on the chancery rolls are certainly not typical. Mr. Treharne himself remarks that one writ describes as " our forthcoming parliament at London " the mustering of all of Henry's supporters in anticipation of civil war.34 What principle of selection governed enrolment we can but guess. Let us, however, take one omission, of which we can be certain, as an example and warning. On July 28, 1258, a writ was addressed to the knights, in every county, who had been appointed to inquire into excesses, trespasses and torts, requiring them to deliver their inquests to the council on the octave of Michaelmas at Westminster. Copies of this writ were preserved at St. Albans a5 and at Burton,38 but it was not enrolled, though a connected writ, addressed to the sheriffs on August 4, was enrolled on the patent roll.37 Both of these writs refer to the parliament of Oxford, but neither mentions that the council, before which the knights are to appear, will be in session in parliament. This we ai Evolution of Parliament, p. 47. 82 As Pasquet pointed out (Essay, p. 133n). 3 »s E.H.R., Ixxiv. 690-610. * Ibid., p. 596. 85 M. Paris, Chronica Maiora, vi. 396-397. 89 Ármales Monastici, i. 456-457: the address of the writ has been altered. 87 C.P.R., 1847-1858, pp. 645-649.

XXVI 48

Parliaments and Great Councils

learn from the enrolled writ of November 4 (if that is the correct date), instructing the sheriffs of six counties to arrange for their expenses to be paid to the four knights who attended " coram consilio nostro apud Westmonasterium in parleamento." 38 For no obvious reason, to the sheriffs of nine other counties a writ to the same purport was addressed on November 4 which does not mention parliament.39 Mr. Treharne takes account of two of these writs only, though one would have thought that all were germane to his thesis. But the point we would emphasise is that here we have a writ, summoning knights of the shire to be in attendance at parliament, which was not enrolled and that we may reasonably infer that writs were issued for other parliaments, the great majority of Henry's parliaments, which were not enrolled either. The enrolled writs of summons are then only a small minority of those actually issued, and the great majority are lost beyond recovery. Such writs as we have are, of course, evidence, like all other documents referring to parliament under Henry III, but not evidence of any peculiar value. It is true that most of the references to parliament in the patent and close rolls from 1258 to 1272 are not contained in writs of summons, but, even so, only about two thirds of the assemblies in the period known to be parliaments are noticed there in one way or another and those notices, relatively few in number, are casual rather than systematic. The only system that can be discerned is the exclusion from the rolls of the routine instrument, though " system " seems too definite a word for what evidently had much of the capricious in it.40 These entries on the patent and close rolls serve to enforce the well-known truth that enrolment was a selective process and left many gaps which it is now impossible to fill. What the rolls give us is, no doubt, a sample, but the selection was what statisticians call " biased " in contradistinction to " random " or " representative." Curiously enough, Mr. Treharne believes that the patent and close rolls provide " evidence without predetermined bias " and, still more curiously, he excludes the evidence of the plea rolls and the records of the exchequer on the ground that they " would necessarily yield a heavy predominance of specialised uses of the term." 41 Having selected his evidence in this way, it is not altogether surprising that he can conclude that " Englishmen thought of parliament as a primarily political assembly." 42 Using much the same discretion in the selection of evidence, Stubbs had come to the same conclusion nearly a century earlier. There is, in 38 Close Rolls, 1256-1259, p. 333: 39 Ibid. pp. 332-333. 40 See above, p. 27, n. 23. *2 Ibid. p. G10.

the date is represented by etc. 41

E.H.R., Ixxiv. 592-593.

Parliaments and Great Councils

XXVI 49

fact, no evidence and no presumption that the parliaments of Henry III in the latter part of his reign were different in character from those in the early part of Edward I's reign.43 Why should we gratuitously suppose that the demise of the Crown marked a change in the character of parliament from a " political assembly " to (using Stubbs's words) " sessions of the council for judicial business ? " 44 The accession of a new king obviously marked a return to regular periodical parliaments, but this does not necessarily imply a change of character. As we have seen, there is evidence to the contrary. We have been an unconscionable time making an end, but since last we wrote of the English parliament many things have been said which invited comment. Let these be our last words. The discussion of the nature and characteristics of parliament under Henry III and the first three Edwards threatens to become a vain dispute about the niceties of language. In such disputes we have no interest. Our concern is with historical realities, with what was done and said in the thirteenth and fourteenth centuries. So long as these are described in sufficient fullness and with sufficient accuracy, it matters little what terms are used, provided the terms are reasonably unambiguous and fitting to the century to which they are applied. But we confess that, just as we deprecate the selection of evidence to support some preconceived conclusion, so we wince at such phrases as " political assembly " or " representative parliament," which have a meaning at the present day that is not apposite to the reigns of Henry III and the first two Edwards, not even to those few parliaments where " politics " may be discerned in the clashes between the king and a baronial opposition. " In his parliaments the king in council holds his court in the presence of prelates, earls, barons, nobles and others learned in the law." What have " politics," what has " representation," to do with these parliaments ? « Above, pp. 34-35. ** Constitutional History, ii. 274.

NOTES Page 2, n.5 For 1292 read 1293; for 1293 read 1294. 37, n.74 Petitions of grace often meant no more than that royal prerogative rights should be waived to allow the operation of the normal course of common law (Sayles, King's Bench, V. p. Ixxxiif.) 40, n.93 Above, XXIV. 25.

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INDEX [contractions: archbp.for archbishop; bp. for bishop'; bro. for brother; dau. for daughter; kg. for king' qn for queen; for died] Ashby, Robert of XVII 194ff. See Zuche Ashridge,co.Hertf XIX146 Ashton, Robert of XXII392 Aspall, Geoffrey of V136,VI536f. Astley, co. Warw 1X249 —, Andrew of 1X249 —, —John bro. of IX 249f —, Edith of IX249f. Athlone, co. Meath XV144 Audley,Hughof XXV In —James of 11115,22,31 —, Nicholas of XIX155 Avignon, France XVI85« Avranches, France, bp. of XVI 81n Aylesbury, co. Buck XIX155

Abel, John XVIII105 Aberdeen 4 —, sheriff of XIII316n Abergavenny, co. Monmouth VI538, XXVI24M Abingdon, co. Berks, abbot of XVII202 Accursi, Francesco 1,170 Acre, William de IV584n Acton Burnell, co. Salop XIX154 Aguillon, Robert IV 584 Airmyn, William, bp. Norwich VI541«, XVII195,202, XIX 141f., 151, XXII 389,394 Alatre, John de, bp. Clonfert XV131 AlbiniacoSee Daubeney Alexander II, kg. Scotland XXIII148 —III: 1174, V138, VI536,XIII 300f., 305n,308 —, Margaret, wife of XIII302,308 —, Margaret, dau. of XIII302,308 —, —, dau. of See Maid of Norway —, executors of XIII 303n Alfonso, kg. of Casule XV 132n Almain, Edmund of, earl of Cornwall V 131f., 141,143, VI535, XVI74, XIX 135,154 —, —, treasurer of V145 —, Henry of III 5,20,30, IV 584 Amersham, Walter of VI535f.,XIX154 Andrew, bp. Argyll XIV 248 Anesley, Henry of V132 Angouleme,Hughof XXV 38n Appleby, co. Westm XI112 Aquitaine, France XXII393 Argenton, Giles de III 16,3 If. Argyll, Alexander of XIII308 —John of XIII311ns —, see of XIV 248 Armagh, archbp. of VI533 Arundel, Thomas, archbp. Canterbury XXIII149,153f., 162,XXIV31,35n

Bacquepuis, William de XV130 Badlesmere, Bartholomew XVII202 Bagley, master Henry of XV144 Baignard, Robert XIX154 Baldock, Robert of XXII Ballioljohn III lln, 16,31f.,IV584, XIII300 —, —, kg. Scotland VI 540n, XIII303-6, 308f., XIV 247n, 249, XV133, XIX 135n Bamborough, co. Northumb III 18n, 19 —, Thomas of XXII38 In Bankwelljohnof X546 Bardney, co. Line, abbey XVI72 Bardolf, William HI 6,1 In, 16f., 32 Barlby, master Robert of XVII 197f.,202 Barre, Robert XI11 On, 112 Barroso, Gomez de, cardinal XXIII151 Basset, Fulk,bp. London HI 6,16f., 31 —.Philip 1116,9,15ff.,31f.,IV584n Bassingbourn, Warin of IV 584 Bath, co. Somerset, prior of XIX154 —.Henryof III9,XVI79« Bauquelle, John of See Bankwell Baye, Nicholas de VI 530 1

2

INDEX

Bavaria, Isabelle of XXIII147 Bayeux, France, barony of XVII197« Bayham, co. Sussex, prior of XIX154 Bayonne, France 1174 Beam, France XV 134n, 137 —, Gaston de VI 533 Beauchamp, Guy, earl of Warwick XVII 202 —, Henry, bp. Lincoln XXIII160 —, Walter VI540n —, William, earl of Warwick XIX154 Beaufou, Roger VI546 Beaumis,Hugh XIX155 Beaumont, Henry de XVI74, XXII394 —, Lewis de, bp. Durham XXV 31 —, Robert, earl of Leicester XXV 47n Bèche, Nicholas de la XXIII150 Beckingham, Ellis of XXV 30 Bek, Anthony de, bp. Durham VI 537«, 547, XII430, XXV 5 In —, Thomas, bp. St David's V131 Beler, Roger XVII198 Belhus, Thomas de V I 42 Beltesdale, William de XV136 Benedict XII, pope XXIII151 Benstead, John of VI541,547 Bereford, William VII 471 Berkeley, Maurice de XIX151 —, Thomas de XIX155, XXII 396n Bermingham, Peter de XV131 Berwick, co Northumb 1172, XIII302, 306-9, XIX149 —John of VI541«, 546-8 Bibury, co. Glouc V139 Bigod, Hugh, justiciar III 8n, 15,19n, 20n, 22,23n, 28-31, XXVI10 —, Roger, earl of Norfolk III 15,23,28, 30f.,IX251n Bigorre, France, count of VI533 Bintworth, Richard, bp. London XXII 381n Birston, William of XVII197 Bisset, Bertrand XIII314« Bitton, Thomas, bp. Exeter XVI78 —, William, bp. Bath IV 584 Blake, Richard XV133 Blewbury, John of XXII381« Blunt, Adam XV133 Blyborough, master William of 1170f., XIII302 Bodenham,Walter of XV137n Bohun, Humphrey de, earl of Hereford (f1275) III 15-17,31f.,(t 1298) VI

537«, XIX154 (t 1322) XVI74, XVII202, XXII389 Boniface VIII, pope XIII314«, XVI75, 77, XXIV 37 — IX, pope XXIII153 Bontyng,Hugh XIX154 Bordeaux, France 1174, XXII 383f., XXIII162 Borrey, Henry XIX155 Botetourt, John XVII198, XXVI18« Bounden, Edmund de XI111« Bourchier, Robert XXII394 Bourne, John of XXI69 Boville, Henry of II750 Bowet, Henry, archbp. York XXIII148 —, William XXIV 36« Boyland, Richard VIII224,227, XIX154 Boys, Margaret XXIV 36« Brabant, duke of VI547, XXIII150 Brabazon, Roger VI548«, IX 251«, XIX 139«, 153, XXVI25 Bracton, Henry III 9, XXIV 22,24, XXV 2,3« Bradenstoke, co. Wilts VIII223« Bramber, Thomas of XXII384 Brandeston, Henry of VI 535f. Brayton, Thomas of XXI18, XXII378, 380«,381« Bridport, co. Dorset XIX155 —, Giles of, bp. Salisbury III 12,31,33 Brian, Guy XXII393 Brigham, co. Northumb XIII302,304 306, XIII 308f Bristol, co. Glouc XIX 155 Brittany, John duke of (f 1286) IV 584, (t 1305) VI544, XIX154, XXVI18« Cj-1341) XXI67,76 —, duke of XXIII 156f. Broome, co. Norf IX 251 Bruce, Robert, kg. of Scotland XII436, XIII304«, 305,311«, 312f., 315,XIV 245-50, XVI73« —, Edward, bro. of XIII304« Brun,Fromundle XV130 Bruton, co. Somerset, prior of V136 Buckingham, John, bp. Lincoln XXIII 154f. Burgh, Hubert de V139, XV135 —, Richard de, earl of Ulster XV130,136 Burghersh, Bartholomew XXII392 —, Henry, bp. Lincoln XXIII150 Burgundy, France XIII315 Burnel, Philip XIX 154

INDEX

—, —, Isabel wife of XIX154 —, Robert, bp. Bath V130,140n, VI 539n, VII 469,473, VIII226,228, XV 144 Burley, co. Yorks XIX154 Burstall, William of XXII380« Burton, master Richard of XVII196«, 198,201n,202 Bury, Richard of, bp. Durham XXII393 Bury St. Edmunds, co. Suff XI115, XIII 306«,310 —, abbey Vili 220,225, XIX146 Bush, master John VI 543,545, XVII197 Butler, Theobald XV139,143 —, William XXV 42f. Butterley, Roger of XIX155 Byblos,bp.of VI 548 Caen, John of VI 543,548 —,—,builder VI544« —, master John Arthur of VI 544«, XIII 306«,307« Calais, France XXIII16If. Cambo, Walter of XIII304« Cambridge, John of XXII395 Canon law, fee for knowledge of IX 252f. Canterbury, co. Kent III 19, VI538, 540«, XXI72 —, St. Augustine's abbey VI535, XIX 154 —, Christ Church priory V130, VI536«, IX 248,253, XVI85« —, master Henry of XVII195-7 Cantilupe, Thomas of, bp. Hereford XIX 135 —, Walter of, bp. Worcester III 9,12,15, 31,33 Carew, Richard, bp. St. David's IV 584 Carleton, John of XIX155 Carlisle, co. Cumb IV 584«, XI111 —,M.P.sfor XI 111« —, —, mainpernors of XI111« —John of XI112 Carmelite friars XIX155 Cassiodorus, Peter, son of XII 426f., 431 Castile, see Alfonso, Eleanor Castledermot, co. Kildare XV129,132«, 146 Caunton,William of XV138« Chamberlain, Roger XXIV 43« Champvent, Peter of VI, 542«, 546, XIX 136 Chancery, court of XXI4

3

Channel Islands VI533,543, XVI81« Chaourches, Patrick de XIX154 Charles VI, kg. of France XXIII161 Chester, co. Chester XIX155 Cheynejohn XXIV 41« Chishulljohnde IV 585 Cinque Ports IV 581, V138, XVI76« —,M.P.sfor XXI68« Clare, Bogo de V13 If. —, Gilbert of, earl of Gloucester (f 1230) 1 153 —,_,_, (f 1295) IV 584, VI533 -,-,-,(tl314) XVI73 —, Nicholas of XV136,137«, XIX 147, XXV 25f. —, Richard of, earl of Gloucester 1153, 1119,12,15,23«, 31,33 —, William of III 18, XV136 Clement IV, pope 1159 — V,pope XVI75 — VI, pope XXIV 36 Clerk, Geoffrey le XI114 —, Nicholas le XI115 Cliff, Henry of XVII198, XXII379« Clifford, Roger of IV 585 —, William of, bp. Emly XV137« Clinton, William de, earl of Huntingdon XXII394, XXIII150 Clipston, co. Notts XIX 146 Cobham, Reginald XXIII150 —, Thomas IX252f. —,—,bp. Worcester XVII198 Cocus See Cook Coddington, John of XXII378,379« Cokefeldjohnde XI114 Cokeham, co. Sussex IX 250 Colchester, co. Essex IV 584« —, St. John, abbey of 1152 Coldingham, co. Berwick XXVI26 Colevillejoande VI534, XIX134« ColombieresJohnde XIX154f. Comyn, John, of Badenoch XII430, XIII 313, XIV 246-9 —,—,earlofBuchan XIII315,316«, XIV246,248f. _, _, _, William bro. of, XIV 249 Cook, William XIX155 Corbridge, Richard of XIX149 —,—, Adam son of XIX149 —, Thomas of V131 —, master William of V131 Gorfe, co. Dorset III 19« Corour, John XI112

4

INDEX

Cottingham, Roger of XIX155 —, Thomas of, junior XXII 380n Courtenay, Hugh XVII 19g, XIX152, XXII394 —, William, archbp. Canterbury XXIII 152 Council, ecclesiastical IV 582 Crakehalljohn III 9 Crambeth, Matthew de, bp. Dunkeid XIII303 Crayke, Walter de XXII393 Creperejohnle XIX155 Cressingham, Hugh of V 146n, VI 538n, XXV9,48f Crispusjohn XIX155 Cromwell, Thomas XXIV 45n Customs duties X544f. D'Albret, Bernard Ezii XXII 383n Daülegh, James de VI545n Dalton, William SgeYork Darcyjohn XXII392 Daubeney, Henry II750 —, William XIX155 David I, kg. of Scotland, XIX149 Debenham, Gilbert XXIV 40n Deerhurst, co. Glouc XIX154 Delislejohn XVIII105 —, Roger V137,XIX139n Dene,Wüliam VI546 Dentón, John of XI 111 Despenser, Henry, bp. Norwich XXIV 30n —,Hugh III16,32,X544,545n,XVI 72-4,78, XIX 133n, 152, XXI6, XXV 7,8,12f., 13,27f., XXVI4 Devizes, co.Wilts III 19 Diplomatie letters XXIII 160f. —missions XXIII150f.,XXV38n Docking, Richard de XI114 Doget, Peter XIX146 Doncaster, co. Yorks XVI85 Dover, co. Kent III 18n, V138, XXV 55n —, constable of XIX154 Drogheda, co. Louth I176n Droxford, John, bp. Bath VI547, X 544, 545n,XVII197f. Dublin, Ireland 1176n,XV 129f., 132n, 138n, 139,143-7, XVI, 83n —, St.Thomas, abbot of XV137,138n DumfrieSjScotland XIII315n —,Greyfriars XIII313 —, William of XIV245n

Dunbrody, co. Wexford, Port St. Mary, abbotof XV134n Dunfermline, co. Fife, abbey XIII303 Dungarvan, co. Waterford XV135 Dunstable, co. Bedf V140 Dunwich, co. Suff. XI115 Durham, bp. of XXII 387n Dyve, Richard de VII468,469n Eaglesham, Wilüam of XIII314n East Bridgford, co. Notts XIX153 Eastry, Henry of IX248n Eddington, William XXII395 Edenstowe, Henry of XXI 17f. Edmund 'Crouchback', earl of Lancaster 1171, IV 582n, V132, VI 533n, 535n, IX 25 In —, Blanche, wife of IX 25 In Edinburgh, Scotland 1155n, XIII 300f., 301n,304n,XIV247 Edward I 115 In —, illegitimate son of XXVI 18n —, as lord of Ireland III 12,32f., XV130, 132n, 134n —II, as prince of Wales VI 547n, XII430, 436,XV138n Edward of Woodstock, duke of Cornwall XXI66 Edward duke of York (f 1415) XXIII162, XXIV 35n Edwardstone, co. Suff V 141n Edwinstowe, Henry of XXII 377f., 379n, 380n,390f. Eleanor of Castile, qn. VI546, VII 468, 469n Eleanor of Provence, qn. Ill 12, VII 468, 473 Ellerker, John XXV 30 Ely,co.Camb V137 —, fair at XVII202 —, Nicholas of, bp. Worcester IV 584 Embledon, William of XXIV 39n Erdinton, Giles of III 31 Eskdale, Scotland, coroner of XIX151 Esseby, Richard de II749 Exeter, John of 1X250 Eyncourt, Edmund de XVII197, XIX 155 Eyvillejohnde IV 584 Falconer, William le XVIII107 Falkirk, co. Stirling XIV 247 Farnham, master W. of XIX155

INDEX Fauconberg, Walter de XIX155 —, —, Walter son of XIX155 Faversham, co. Kent XIX146 —, abbot of XIX146, XXVI35 Felton, William of XXII393 Ferings, Richard de, archbp. Dublin XV 135n Ferré, Guy XVII198 Ferneres, John de VI 547 —, Robert de, earl of Derby IV 582,584 —, Thomas de XXII394 Fife, Scotland, earldom of XIII 304n Fiket, Henry XIX155 Fitz Alan, Richard, earl of Arundel XXII 394 Fitz Geoffrey, John III6,15f.,23,31 Fitz John, John V136, VI 536f. Fitz Maurice, Thomas XV135 Fitz Philip, John VI548n Fitz Thomas, John VI548, XV130, 135f.,147n,XIX148 Fitz William, Ralph XVII197 Flanders, count of 1171, XVI75, XIX 151 Foleburn, Adam de XV 137n Formularies, parliamentary documents in XXIII 147ff. Forz, William de, earl of Aumale III 15, 22,27n,31 Foxley, John of XVIII105 Francis, Richard VI536 Fräser, Simon XIII311,313 —, William, bp. St. Andrews XIII303 Friskney »Walter of XVII198 Frome, Renard de XVIII107 Fulburn, Stephen, archbp. Tuam XV 130,136, VA —Walter, bp. Waterford XV136 Gainsborough, William of, bp. Worcester 1171 Galloway, Scotland XIV 246,249 Gascelyn, Geoffrey I140n —,—, Joan wife of V140n Gascony, France, merchants of, VII 472n, 474, XIII 303n —, seneschal of 1174 Gaynard,Adam XV136 —,—, William, son of 136 Geddington, William of XIX155 Gelderland, count of XXIII150 Gesemuthe, (Jesmond), Adam de IV 584 Geytinton See Geddington

5

Ghent, Belgium XXI69 —Gilbert of IlllSn Giffard, Godfrey, bp. Worcester VI533, VIII220,225,228, XIX154 —, Walter, archbp. York 1157n Gisburn .SuGuisborough Gloucester, co. Glouc III 9, V 138f. —, countess of XIX151 —»statuteof VII467ff. Gobion, Richard XI1 lOn, 113 Goldingham S^Coldingham Goldington, Ralph of XI113 Grandissonjohn, bp. Exeter XXI70, 71n,XXIV32 —,Othode, 1170 Gras, William le XV146« Gravenerjohn XXIV 41n Gravesend, Richard, bp. London V139 Great Council V 148ff., XVI73,83, XXI 65ff., XXIII158, XXIV 32, XXVI 4f.,12ff.,16ff. —, writs of summons to XXIII160 —, composition of XXVI 17f. —Junctions of XXI 74ff. —, distinguished from parliament XXI 67ff.XXVI42 —, substituted for parliament XXIII 158ff.,XXVI20f., —, with popular representation XXI68 —, —, abandoned XXI74 See Parliament Great Yarmouth, co.Norf XI11 In, XXI 67,76 See Yarmouth Greenfield, William, archbp. York XII 430 Greley, Robert VI535n Gresley,Thomas III lln, 12,16,3If., 33 Grey, John III 6,16,3If. —,—,ofRotherfield XXII390 —, Reginald, of Ruthyn XXIV 36n —»Richard III 15,16«,31 Greystoke, Henry of XXII 384f. Grimsby, Edmund of XXII380« Grosseteste, Robert, bp.Lincoln XXIV 24«, XXV 29« Gruffydd,Madocap 1161 Guisborough, co. Yorks XII429 Hagham 5¿iHaughmond Halten, John, bp. Carlisle XIII304«, XVII198 Hamilton, H. of VI525, XIX155

6

INDEX

—»William V130n,VI535f.,XV138n, XIX 154 Hampdenjohn XXIV 41n Harclay, Andrew, earl of Carlisle XVI 73n Harlaston, William of XVII 195f., XXII 380n Harstan, co. Derbs II19 Hartlepool, Geoffrey of VI 547 Haspal See Aspall Hastings, Edward XXIV 36n —, John of XIX 154 Haughmond, co. Salop, abbot of XIX155 Hauville, William de 1152 Haverford, co. Pembroke 1153, XIX155 Haverhill, Peter of IX 249f. Havering, John of VI545 Haxey, Thomas XXI12 Hay, Nicholas XIII31 In Heckingham, John of XI114 Hengham, Ralph V141, VI533, IX 247«., XIX 154ff., XXV 24 —,—, William, chaplain of 1X250 —,—, clerk of IX249Í. Henry V, as prince of Wales XXIII156f., 162 Hereford, bp. of VI533 Heresy XXIII 152f. Herlawe, Richard de IV584n Herle, William XVII198, XXII394 Heron, William, Lord Say XXIII159 Hertford, Robert of VI546, XIX136 Hexham, co. Northumb, prior of XIX 155 Hildesley, master John of XXII383 Ho, Robert de XI113 Hoccleve, Thomas XXIII148,158 Holland, merchants of VI535 Hollingbourn, co. Kent IX 253 Holy Island, Robert of, bp. Durham I 174, V138, VI536 Holyrood, Scotland, XIII30 In Home, Edmund XXI72 Hotham, John, bp. Ely XVII202, XVIII 105, XXII394 Hotot, William XlllOn, 113 Houel, Robert XXV 33n Howard, John XXIV 43n Husee, Geoffrey II747 —, Henry II747 —, Hubert 11747,749 Hyde, co. Hants, abbot of V142 linghamjohnde XIX 155

Inge, John XXII383 —.William XVII197, XXII389, XXV 44 Ipswich, co. Suff XXI69 —,M. P.S. for XI114 Ireland, parliaments of 1165,170,178, XV 128ff. —,—, composition of XV 130f., 141 —> —) popular representation at, XV 13 If. —,—, periodicity of XV130,144 —, —, list of, under Edward I XV 146f. —,—, taxation in XV 139f., 141,144f. —, —, decisions in XV 142f. —, —, —, amended only in parliament XV139,144 —, woman of XIX155 Irish and English common law XV 132f. James Steward of Scotland XIV 246,250 Jesmond see Gesemuthe Jews, Jewry, III 10,20,22,26n,V 138, VII 474 —, justices of III 10 —, statutes of V137f. John of Gaunt, duke of Lancaster XXII 385,396n, XXIV 35n John of Lancaster, duke of Bedford (f1435) XXVI 23n Judges: as legal consultants IX 247ff. Jülich, margrave of XXIII 150f. Justiciar of England II749, III 8n, 9,15, 16n,20n,28 Juvene, John le XV134«, 136 Karleton See Carleton Keighley, Henry of XXI10 Kendal, Hugh of VI 534f., XIX155 Kenilworth, Dictum of IV 582, XXVI36 Kenleg'Johnde XV141 Kent, Hugh V 146n, XV 132n —, Simon XIX155 Kerdiston,Fulkde III 31 —, William de XI113 Kildare, Ireland XV141,146f. Kilkenny, Ireland 1176n, XV133,136, 141,144,146f. —, Great Council at XXI 76n King's council IV580ff. —, writs of summons to IV580,584f. —, composition of III 8ff., 16f., 2 If., IV 583f. —, borough representatives at IV 581, 583ff.

INDEX

—, —, with full authority IV 583 —, oath of members of III 9,30f. —, memoranda of IV 580 —, clerk of VI532ff.,537ff. —, meeting of, in exchequer X 545 Kingston, John of XIV246f. Kirkby, John, bp. Ely VI 532ff., 537, 543,545,546n, 549f., VIII224, XV 137n, XIX 140n, XXII378 —, —, bp. Carlisle XXII393 —, Roger of XIX 155 Kirkintulloch, co. Dumbarton, archers of XIX 149 Knights Hospitallers XXIII150, XXV 28 Knights Templars IX 247, XVI77, XXV 28,34 —, in Ireland, Master of XV131,134« Knights of shire HI 11,14n,32,IV4n,XI 110-14, XXVI34 Knyvet,John XXII393 Kyme, Philip of XVII197 Kynardsbyjohnof XXV 9n Kyrieljohnde III 31 Lacock, co. Wilts, abbess of XIX 155 Lacy, Henry de, earl of Lincoln VI544, 547, XIX 130 Lamberton, William of, bp. St. Andrews XIV246,247n,248 Lanark, Scotland XIII304« —, sheriff of XIII301 Lancaster, Thomas, earl of XVI 71n, 72, 73ns, 78, XVIII105,106n, 107 Langerigge, William de XI111 Langham, Simon, archbp. Canterbury XXII391 Langley, co. Norf, abbot of IX 251 Langten, John, bp. Chichester X 546, XVII197 —, Walter, bp.Coventry VI 541n, 543n, 545, XVII198,200n, 201ns Latimer, William VI546, XXIV 30n, 31 Leake, co. Notts XVI 73n, 79n, XVII195, XIX133n,XXIV26 Leche, John de, archbp. Dublin XIX151 Lee, John XXII391 Leicester, co. Leic XVI84 Leigh, co. Devon, abbess of XIX 147 Leinster, Ireland XV 144 Leix, Ireland XV144 Leyburn, Roger of IV 581,584 Limber, Adam of XVII 195f. Lincoln, co. Line XVI 86f., XVIII 105f.,

7

XIX 153, XXI8,67,70 — cathedral XVI74 — Great Council at XXI 66f., 69,71,76 Lindsey, Alexander XIII313 Lisle, master John de X 546, XVII197 Listón, Scotland XIII30In Llewellyn, prince of Wales 1161, V 134f. —, David bro. of V135n —, Owen bro. of V 135n London III23,VI533, VII470f.,VIII 224, X 544,546, XVI84, XIX153, XXI14,69,76,77n —, Blackfriars XVII202 —, Bridge VI39 —, Exchange III 29 —, Holy Trinity, prior of V131 —, St. Katherine's by the Tower XVI 72n —, Temple, Master of V131 —, Tower III 22, VII 470,474, VIII224 —, charter of IV 580 —, craft gild of 1155 —, jurisdiction of VII 470n —,M.P.s.for XXI 68n —, sheriff of XIX151 —Alexander of XXVI 2f. —, master Edmund of XVII 195f. Longespée, Stephen III 19 —, William, earl of Salisbury 1161 Lothian, Scotland, coronership of XIX 149 See William Louis IX, kg. of France 1154,162f., XXIII147 Louvain, Belgium XXIII150 Loveday, Roger VI535,537 Lovel,Hugh XIX 154 —, Richard XVIII 106f. Lovell, Henry XVI79 —, Thomas XXIV 38n Lovetot, John de VI 535,537 Lowther, Hugh of XIII 310n Lucy, Anthony XXII393 Ludlow, Thomas of XXII391 Lusignan, Aymer of III 2If. —, Geoffrey of III22n —, Guy of III19n,21f. Luton, William of XI11 If. Lynn, King's, co. Norf XVI78, XIX151 —,M.P.s.for XI114 Lyons, Richard XXIV 30n, 31 Macduff, Malcolm VI5 39n, XIII309 Macdonald, Angus, of the Isles XIII308

8

INDEX

—, Alexander, son of XIII308 Macón, France XIII315 Maid of Norway XIII302,306,314 See Alexander Maldon, master William of XVII, 195f. Malmesbury, co. Wilts VIII 223n Man, Isle of XIII 305n —jbp.of XIII 301n Manchester, Hugh of 1172 Manseljohn III9,15,23,28,30f. Mantón, Ralph de XIV 246 March, William of XV137 Mare, Peter de la XXIV 45«, XXV 25n Margam, co. Glam, abbey 1153 Margaret, qn. of France XIII315 Marsh, Richard, bp. Durham XXV18 Marshal, William, earl of Pembroke 1152, 161 Martin, William XVII198, XIX 154 Martival, Roger, bp. Salisbury XVII197 Mason, John XIII 303n Matthew of the Exchequer XXV17 Mauclerk, Walter, bp. Carlisle XXV 3n Maunsel, Thomas XIX 155 Mauny,Walter XXII393 May, co. Fife, prior of XIII303 Mellifont, co. Louth, abbot of XV134« Melton, Robert of XXII396 —.William, archbp. York XV139, XXI 7,67,71 Mepham, Simon, archbp. Canterbury XXII390,394 Merchant assemblies XVI84 Merton, Walter of III 9 Mettingham, John of V142, VI 541n, XXV 24 Meulan, France, countess of 1161 Middleton, Gilbert of V136 —, William, bp. Norwich VI 536f., XIX 155 Mitford, Richard, bp. Salisbury XXIV 35n Montacute, Simon, bp. Ely XXV 3 If., 39 —, William of VI548 Montague, John de, earl of Salisbury (f1400) XXIV 39n —, William de, earl of Salisbury (f 1344) XXIII50 Montfavet, Bertrand de, cardinal XXIII 151 Montfort,Amauride VI39 —, Peter de 11115,23,31 —, Simon de, earl of Leicester, 1168, III

llf.,15,18,19n,21,23,31,33,IV 581,XVI79n Montgomery, Walter de XIX155 —, —, John, son of XIX155 Monthaut, Roger III 16,27n, 3 If. Montlucon, Jean de VI 530 Moraunt, master Jordan de XVII198 Mortimer, Constantine XXII394 —, Roger III 15,31, IV 585, VI535,537, XIX155 —,—, earl of March XXI2 —, William VI546 Morton, Geoffrey de XV135« Mowbray, John XIII31 In, 312 —, Thomas, earl of Nottingham XXIV 35n Muntchenesy, Delùse de XIX135n —, William de V141n Murimuth,Adamof XVI 85n Mutford, John of XVII197 Neville, Alexander, archbp. York XXIII 153 —, Geoffrey de VI532n —John 1162 —, Ralph XXII393 —, —, earl of Westmoreland XXIII156 —, Robert III 19n Newark, master Henry of VI535-7 Newcastle upon Tyne, co. Northumb III 19,VI539n,XVI73n Newton, John of XI112 Nicholas—, XIX155 Noers, Robert of XXVI4 Norfolk, M. P.S. for XXI69 —, sheriff of XXI70 —, Adam of, 1174 Norham, co. Northumb 1171, XIII306, XIX148 Normanville, Thomas VI536 Northampton, co. Northants III 18, XIII 306n, XVI 84f., XXI2,70f., 7 In, 78 —, Great Council at XXI66,68 Northeleye, William de VI539n Norton, co. Worcs XIX154 —, Gregory of VII 471 Norwich, co. Norf V142, VI 539n, X 545n,XXI69 —, Holy Trinity church, V142 —, clergy of see of, VIII224,227 —,M.P.s.for XI114 —, Walter of XVII198, XVIII105-7, XXV9n

INDEX

Nottingham, co. Notts, III 18n, XIX154, XXI70f.,72n —, Great Council at XXI66,68,75f. Nowers, Aymer de XI1 lOn, 113 Oarejohnof 1116,31 Odiham, William of XV 137« Offelan, co. Kildare XV144 Offordjohn XXII388 Ogbourne (Okeburn), co. Wilts, prior of XIX 153 Ordinances of 1311 XXVI14,30,34 Orford,co.Suff XI115 Orleans, France, duke of XXIII161 Orleton, Adam of, bp. Hereford XVII 196n, XXI1, XXII378,394, XXVI 30 Ormesby, John of XXVI4 Osgodby, master Adam of XVII202 Ottery St. Mary, co. Devon V140 Otto, Hugh, son of XIX154 Ottobuoni Fieschi, cardinal IV 582 Oxford, co. Oxford III3ff. —, university of XIX 136n Pagham, master R. de XIX155 Pakenham, William de XIX154 Parliament: origins 1146-57,169, II747, XXIV 22, XXVI8 misconceptions XXVI3-6,31f., 44ff. international character 1170-5,177 official use of term in England II 747ff. periodicity V130,133ff., VI529, XVI 80f., XXI 65ff., 77,1 ; XXVI 9ff., 14 meetings, list of V133ff., 151-4, XXI 78-82 —, ambiguity about V 147f., XVI 83f., XX VI24-30 writs of summons XVI 81ff., XXVI 13f.,47f. —plundered XXI72 commons in XVI 76ff., XIX 129f., 141 representation in X1 lOff., XXVI 7f., 15f.,24f.,37,44 shire members in IV 583«, XI1 lOf., XXI14,69,72, XXIV 38ff., 44 XXVI4Í. —, mainpernors of XI112ff. —, superior to burgesses XXI14, XXIV 38 borough members in XI11 Iff. —, mainpernors of XI114ff.

9

manipulation of elections to XXIV 41 ff. writs of expenses XXVI 4f. composition under Henry III III 11 presence of clergy in VIII 220ff., 2 31 n Scottish magnates in V146, XIII311 special peace during V131f. privileges of V130-2, XVI74 council in VI 546ff., XVII 199f., XXVI 43ff. —, committees of VI, 535f., 546f., VIII 228, XVII202, XXII 387f., 393f. functions of VI 529ff., XVI 79f., XXI 72f., 1, XXVI2,7f., 14f., 46ff. —, exercised by king's officials III 710, VI 529ff., XVIII105, XXII 388f., 391f. business of 1163ff., 173f.,II748f., XV 134ff., XVI 71f., XIX 130ff., XXI2,5 —, dispensation of justice XXI Iff., XXVI 30ff. —, politics XVI75 —, homage VI549 petitions in V 130ff., VI 530ff., 534ff., 542ff., XII 426f., XIII31 If., XVI 75f., XXI 73ff., 2ff., XXIV 34, XXVH5f.,18ff., —, essential right to present VI33, XXVI39f.,41 —, receivers of VI 532ff., 542f., XVII, 194ff., 200, XXII 379ff., 387, XXVI 37 —, auditors of VI 532ff., 542f., XVII 197ff., 200, XXII 381ff., 387 —, —, augmentation of XXII 384ff., 397 —, unanswered XXI73 Irish petitions in XV134,137,139, XXVI 37n Scottish petitions in XIII311f.,313f., XXVI37« Gascon petitions in VI 542f. 544f., XVII 195ff., XXII 381ff. clerical petitions in VIII228ff. convocation vis-a-vis VIII 230f. commons in, petitions of XXI5, 7ff., XXII387, XXIII 155ff., XXIV 27, 32,33f.,35f.,XXVI 15f.,40,45 —, —, sent to clerk of parliament XXII 387-8, XXIV 34 —, —, contain private bills XXI 9f., XXIV 34f. —, —, form basis of statutes XXI13,

10

INDEX

XXII387, XXIV 27,32,36 —, petitions addressed to XXVI19,36 —, duty to attend XXIV 27 —and taxation XXIV 28f., 32 — and religion XXIV 30f. —and economic issues XXIV 31 f. —, rare participation in politics XXIV 21,29f.,32,36f. —, exclusion of lawyers from XXIV 34f —, credulity of XXIV43 —, speaker of XXII 393f., XXIV 45 —, clerk of XXII396 baronial petitions in XXIV 24,26f., 32 baronial authority in XVI 73n, XXIV 25f.,35f. Great Council in XVI 73n, XVII 199ff., 203 decline of power of officials in XVII 199,203 distinct from other royal councils V148-50,XXVI9f.,13 supreme authority of XXI2,6 judgements of, to be reviewed only in XVI 72f. presence of king in VI546, XVII 200f. spokesman for king in XXII 389ff., 395f. absence of king from V142f. newsletter from XII429ff.,431f. as social occasion XVIII106 clerk of VI 532ff., 537ff., 549f., XVII 194f.,XIX 135f., 140n, 141,143«, XXII377-9,380,387,396 records of V 129ff., VI531,540f., XV 134,XVI81,XIX129ff.,154f., XXVI42 rolls of II749, V 129ff., VI531,540f., XIX 129f., XXI15-18, XXII377, 379 —, omissions from XXII377,379, XXIII 155f. —, no longer extant XIX137 —andVetusCodex XIX135,137f —Analysis of XIX 146ff. See Ireland, Scotland Parliament of Paris 1157,160,162f., 164f., 166ff., 170,174ff., VI529Í., XXIV 23,27 Pastonjohn XXIV 4In Pecche, Aymer de XIX154 Pecham, John, archbp. Canterbury V 131f., VIII 223,228f.,231,1X252 Pedro IV, kg. of Aragon XXIV 32n

Peebles, Scotland XIII315 Peerage, Peers XVI 72f., XXIV 25f., 33, XXVI16,44f. Pembroke, Richard of XXV 26 Penchester, Stephen of 1170, VI535,537, 546, XIX 136 Penrith,co.Cumb XVI78 Percy, Elena V140 —, Henry (f 1272) VII 468,469n —,—, Eleanor, wife of VII468,469n —,— John, son of VII468,469n —, lord Henry XXII 393f. —, Henry, earl of Northumberland (t 1408) XXIII 161f. PeritonSgePyrton Perth, Scotland XIII312 Peter the Spaniard, cardinal-bp. St. Sabina XII430f. Peterborough, co. Northants, abbot of VI 531, XIII300, XXI70, XXVI 24n Peverelljohn XXIV 41n Peveril, co. Northants, honor of II 748n Philip III, kg. of France XXIII147 — IV (the Fair), kg. of France XII430, 436, XIV 247, XVI77,8 In —, Isabelle, dau. of XII430,436 —VI, kg. of France XXIII150 Pickering, co. Yorks III 28 Picquigny, Jean sire de I171 Pisan, Christine de XXIII147 Plaints IX 249ff., XXVI34,39 Plessis, Hugh du VI535, XIX154 —, John du, earl of Warwick III 1 In, 15, 19n,23,31 Plumpton, Robert XXIV 42 Plumstock, master Richard of XVII197 Poitiers, Alfonse, count of 1154,173f., XIII305 Pole, Michael de la, earl of Suffolk (f1389) XXIV 38,44 —, William de la, duke of Suffolk (tl450) XXIV 38 —, William XXII394 Pontefract, co. Yorks XXI 70n Pontoise, John of, bp. Winchester V130 Power, Walter XXII 380n Powick, William of III 6,31 Prendergast, Geoffrey de XV131 Pridinton, Roger de XIX155 Provisions, of Oxford III 3ff., XXIV 23f., XXVIlf.,8,10,13f.,18,32f.,35 —, of Westminster III 24 Pugeys, Robert XI11 If.

INDEX

11

Pulteney,John XXII394 Pynkenyjohn VI538n Pyrton, co. Oxford, manor of VI 535«

Rutherglen nr. Glasgow XIII314f., XIV 245f.,248 Ryssheton, Dr. Nicholas XXIII161

Quincy, Roger de, earl of Winchester III 1 In, 16,3 Iff., XIII300 Quinci, Peter, bp. Exeter XIX147

Saddington, Robert of XXII383,394f. Saham, William of VI 536f. St. Albans, co. Herts XVI 85n —, abbot of VI539n St.Amand,Aymerde VI548 —John de VI 548 St. Andrews, co. Fife XIII 301n, 311,315 St. Denis, dep. Seine, France XIX154 St.Ermine, William of III7n St. Ivés, co. Hunts XVII202 St. Leofard, Gilbert of, bp. Chichester VI 541 St. Omer, dep. Calais, France IV 584 —John de XI114 St. Pol, France, count of XXIII162 —John of XXII 394f. —, Pierre de I157n Salerno, Charles, prince of XIII315n Salisbury, co. Wilts II747,749f., VIII 223, XXI76«, 78 Salmon, John, bp. Norwich XVII197, XXII389 Sancta Crux See Holyrood Sandale, John of, bp. Winchester VI545, XIII31 If., XVII198 Sandwich, co. Kent V136 —, barons of VI535 —, merchants of X 544-6 —John of XIX 139« —, —, Alice, wife of XIX139« —, —, Juliana, dau. of XIX139« —, Ralph of, VI535,537, VIII224, X 546, XXV12 —, Thomas of 1170 Sanford, John de, archbp. Dublin XV 130,138«,144 Sauvage James le III 16« Savage, Arnold XXIII162 Savoy, Boniface of, archbp. Canterbury 11115,31 —Peter, count of III 15,22f. 27«, 31 Say See Heron Scarborough, co. Yorks III 18,28, XXI 69 —John of XXII396« —, master Robert of VI534,536, XXII 383 Scarlejohn XXII380« Schelmingge, Thomas de X 546

Ramsey, co. Hunts, abbot of XVII202 Randolph, Thomas, earl of Moray XIII 305« Reading, co. Berks, abbot of 1171, VI 533, XIII303 Reigatejohnof VII469n Reviers, William de, earl of Devon (f1217) I161 Reymund, William VI533 Reynolds,Walter, archbp. Canterbury VIII231, XVII202, XXI67,71,75 Ricciardi, society of XV 136f. Richard of Cornwall, kg. of Romans I 169n, III 5,11,30, IV 584 Richard Plantagenet, duke of York (tl460) XXIV 44 Richmond, earldom of XXIII 156f. Ringmere, Thomas de IX248n Ripon, co. Yorks XVI83,87 Robert See Bruce Rochelle, Richard of XV129Í. Rochester, co. Kent III 19 —, prior of V140 —, ferry at V140 —, Elias of III12n —, Solomon of IX 248«, XIX155 Rogesjohn V140 Rokeby, Thomas of XXII393 Rokesley, Gregory of VIII, 224 Romans, Humbert de, 1158-60,162 Romeyn, John le, archbp. York V143 Roos, lord William de XXIII160,162 Ross, John de XVI74 Rosslyn, co. Midlothian XIV 247 Rostand Masson, papal nuncio III 23 Rothbury, Gilbert of VI 532n, 537ff., 543, 547-50, XVII 194f., XIX135-7, 140n, 143«, XXII378, XXV 43f. Rotherfield See Grey Rothing, Richard of VIII227 Rothwell, master Roger of XVII197 Rouen, France, St. Mary's V140 Rufford, co. Notts, abbot of XVII202 Runcton, co. Sussex V136 Rus, Henry le XI115

12

INDEX

Scone, co. Perth XIII301-4,312,314, XIX135» Scotland, parliaments of 1165,170,177f., XIII 300ff., XIV 245ff., XXVI 12n —,—,listof XIV316Í. —, clergy of XII436 —, Guardians of XIV 245ff. —, relationship with England XIII305, 308f. Scrope, Geoffrey le XVII198, XXII390, 394, XXV 44 —, Henry le XVII 197f. —, Richard le, archbp.York XXIII 161f. Seaton, Roger of XXII389 Segravejohn XIII31 In, 312 —, Nicholas 1170, VI541,548, XIX 133n Septvans, William de XXII391 Shardlowjohnof XXII383,394 Shareshill, William of XXII384,393 Sherburn-in-Elmet, co. Yorks XVI85 Shobury, Henry of V138 Shoreditch, John of XXII383,394 Shotover, co. Oxford 1162 Shrewsbury, co. Salop XIX155, XXI70 Somerton, Thomas V31 —,—, Alice, wife of V131 Soterlee, Roger de XI114 Soulis, John de XIII314n,XIV247n, 248n Spain, kingdom of XII436 Sparsholt, William of V137 Sperlyng, Andrew XXIV 4In Spigurnel, Henry X546 Stace, Thomas XI114 Stafford, Ralph, baron of XXII391 Stamford, co. Lines XVI86, XIX154 Stanburn, Philip de XIX154 Stanley, co. Wilts, abbot of XXVI 4f., 31 Stanlow, co. Chester, abbot of XII428 n Stanton, Harvey of, VI546, XVIII105, 107 Stapeldonjwalter, bp. Exeter XVI72, XVII 197f., 200n, XIX 134f., XXV 28 Stapleford, co. Wilts II747 Stapleton, Nicholas of VI534-6, XIX154 Statutes 1163f., IV 582, VII 467f., XIX 143, XXV 201ff., 540ff., XXVI16, 24f.,34-6,43 —of York 1322 XVI n —, interpretation of VII467ff —, application of, to Ireland XV138n Steeple, co. Essex XIX154

Stirling, Scotland 1171, XIII 300f., 304f., 306f., XIII311, XIX 135n —John of XXII393 Stonor, John XVII198, XXII 394f. Stowood (Stow Wood), co. Oxford 1162 Stratford, John, archbp. Canterbury XV 139,XXI2f.,6,71,XXII387,391f., 394 —, Ralph, bp. London XXII394 —, Robert, bp. Chichester XXII394 Strathbogie, John de, earl of Athol XIII 316n, XIV 246,250 Strickland, Walter XXIV 41n Stuteville, Robert de XXV 55» —,—, wife of XXV 55n Sumery, Roger de III 16,3 If., IV 584 Swinfield, Richard, bp. Hereford XIX 135 Tailour, Roger le V140» Tange, Andrew XIII306», 307n —»William XIII306» Taxation, clerical IV 582 —,lay IV581», 583,XI HOf.,XXVI26, 28 Testa, master William XII427,429f. Teutonic Hanse XVI78 Thomas of Brotherton, earl of Norfolk XXII 393n, 394 —of Lancaster, earl of Lancaster XXII 389, XXV 7 Thomond, Hugh of, bp. Meath XV130 Thoresby, John, bp. St. David's XXII 388,394f. Thorney, co. Camb, abbot of XXI70, XX VI24» Thorneye, Thomas de XIX155 Thorpe, William of IX 252, XXII384 Tibetot, Robert XXV 51» Tiltey, Thomas de XIX155 Tipperary, Ireland XXV 26 Tiptoft, Robert VI546 Tonere, Hawise XIX155 Topcliffe, co. Yorks VII 468,469» —, Peter of VII 468 Tothby, Gilbert of XVII198, XXV 44 Trussel, William XVIII, 105,107, XXI 14, XXII 395f., 396», XXIII150-2 Turville, master Philip of XVII197 Tynedale, co. Northumb XIX149 Tyngeston,Alande XIX155 Twynham, co. Hants, Christ Church, prior of V142

INDEX Tynemouth, co. Northumb, priory of VI 539« Tyrel, Roger XIX155 Ufford, Robert de XV130,143 Umfraville, Gilbert de, earl of Angus XXII393 —,—,—, son of XIII3 lOn —, Ingram de XIV 246,248-50 Upsetlington, co. Northumb XIII306 Valence, Agnes of VI548, XV 135n, 136 —, Aymer of VI544,547, XIX149 —, —, bp. elect Winchester III 22n —, William of III 22, IV 585, VI 540n, 546, XIX 135n, 146,154 Vaux,Fulkde VI540« —John de XIX154 Vel, Robert de IX250 Venice, Italy, doge of XVI75 Verdun, John de III 16f., 32, IV 584, XV 134n —, Theobald de VI 538 Vere, Hugh de, earl of Oxford III 16f., 31 —, Nicholas de IX250Í. Vescyjohnde VI536f. —, William de XV135 Wainfleet, Robert of XVI12 Wake,Hawise XIX155 Waldeby, Robert, archbp. York III 153f. Walden, Roger, archbp. Canterbury XXIII149 Walerand, Robert III9,IV584f. Walewaynjohn XII383Í. Waltham Holy Cross, co. Herts, abbot of XXI 68n Walwayn, master John XVII197,202 Wales, M.P.s. for XVI79 Waleysjohnle V132 Wallace, William XIII3 lOf., 314, XIV 247 Wallingford, co. Berks III 22 Walpole, Ralph of, bp. Ely XVI72 —,—, steward of XVI72 Wareham, co. Dorset, St. Mary, priory of XIX146 Warenne, John de, earl of Surrey (f 1304) IV 585, VI548«, XIII301« —,—, — (11347) XXII394 —, —, countess of XVI74 Waterford, Ireland XV137 Wath, Michael de XXI18, XXII 379n

13

Wayland, Thomas of IX 25 In, XIX146 Welle, Bartholomew de XIX151 Welleford, Richard de XIX151 Wellst York Wergrave, William de XIX151 West Hendred, co. Berks V137 Westminster, co. Midd XVI 85ff., XXI2, 70ff.,74n,78f. —, abbot of V132, VI 535n, XVI74, XIX 154 —, St. James, hospital of XIX147 —, palace of XVI74 —, Great Council at, XXI10,66,68,74-6 Weston, Nicholas of V134 Whalley, co. Lane, abbey of XII 425f. Wickwane, William, archbp. York VIII 224, XIX155 Wikeford, Robert, archbp. Dublin XXII 383n Wüliam the Lion, kg. of Scotland XIII 306« William, archdeacon of Lothian, Scotland XIII314n Willoughby, Philip of X 546 —, Richard of XXV 42 Wilton, co. Yorks VII 468,469« Wiltshire, sheriff of XXI70 Wimborne, co. Dorset XIX147 Winchelsey, Robert, archbp. Canterbury VIII229«, XII437, XXVI27« Winchester, co. Hants III 18,22,23«, XVI84, XXI72,78 —, archdeacon of 1170 —,Great Council at XXI 67f., 74,76 Windsor, co. Berks IV 582«, XXII381« Wingham, Henry of III 15,16«, 2If. Wischard, Robert, bp. Glasgow XIII 31 If. Withington, Thomas of XIX155 Wogan, John de XV136, XXV 27 Woodhouse, John of XXII381« Woodlock, Henry, bp. Winchester XVII 197 Woodstock, co. Oxford II749 Wool, seizure of, in 1297 X 543ff. Wooler, David of XXII380«, XXIV 39», XXV 9« Worship, John XXV 24« Wykeham, William of, bp. Winchester XXIV 35« Wylaund, Nicholas de XI114 Wymondham, master Thomas of IV 584«, XXV 24«

14 Wyndel,Adam XIX 155 Wyresdale, Thomas of XIX155 Wythjohn XI11 In, 115 Wyvil, Robert, bp. Salisbury XXII394 Yarmouth, co. Norf, Franciscans of VI 546 —,M.P.sfor XI115 York, co. Yorks 1174, IV 585, V136, VI 536,XVI78n,83f.,86f.,XIX153, XXI70,78f. —, cathedral chapter of XIX 154 —, St. Mary's, abbot of 1174, V136, VI

INDEX

533,536 —,—, William Dalton, abbot of XXIII 148 —,—, William Wells, abbot of, XXIII 148 —, St.Peter's, dean of 1174, V136 —, Great Council at XXI66,69,71 Youkeflet, Nicholas de VI 539n Zealand, Holland, merchants of VI535 Zuche, Alan la IV 584f., XV134n —, William de la, of Ashby XXII387, 390,394