The earls and quod omnes tangit in the courts of later medieval England: Some examples

In 1946, Gaines Post, as part of a wide-ranging discussion of the influence of the Roman law maxim quod omnes tangit (what touches all) in later medieval England, demonstrated that this principle became a rule of procedure in the developments in public law that accompanied the growth of representative institutions, especially parliament, through the period.[1] For matters of public necessity, such as the imposition of public taxation, the consent of the whole community of the realm, embodied in their representatives, was required for such actions to be legitimised. Quod omnes tangit was a principle developed from classical private legal principle that required the common consent of all concerned parties participating in a particular defence of joint rights in court if they held an equal share. If a party had a share in the object of a private dispute – Post cites an issue affecting several parties who possessed joint rights to draw water from a stream – then the case could not proceed without the consent of all the concerned parties. Before moving onto the main focus of his article – the impact of quod omnes tangit on developments in public law in medieval England – Post briefly illustrates that quod omnes tangit could be used as a legal device in private law: ‘a defendant frequently offered pleas or exceptions to the effect that he could not answer because the business touched another, or others, without the suit should not proceed.’[2] And so the suit was indefinitely delayed while the other parties were sought. Doubtless this principle, which protected all legal rights in property, was abused by defendants who wished to delay inconvenient or harmful actions concerning their real property brought against them.

Earls, who held much of their land in chief directly from the king, were ideally placed to make use of the principle of quod omnes tangit as the vast amount of land they held, and the large proportion of that held of the king, meant that they were more likely to be a defendant in a case concerning land held with joint rights than were most of the population. It appears that some earls, at least, did not waste this enhanced opportunity to delay proceedings against them. Out of just two of the Calendars of Close Rolls for Edward III’s reign (comprising the years 1330-1337), hardly an exhaustive trawl of the records, four different earls are recorded as pleading before the justices of the King’s Bench that, because the lands in question were held of the crown, the suit ought not to proceed without consulting the king.[3] In this way, each of the suits was, from the earl’s point of view, advantageously delayed as the plaintiff was required to petition the king (an act which may not have been successful) in order to confirm that the proceedings of the court could continue. An example is copied below. In this way, the earls could use the principle of shared rights in property necessitating the consent of all parties, inherent in the nature of their tenure, to impose lengthy delays on any pleas concerning lands held in chief of the king that might be brought against them in the royal courts. That a very brief survey has uncovered several instances of this legal abstraction being put into practice by earls seems to serve as an illustration not only of the undoubted potential for the medieval legal system to be lengthily delayed but also of the opportunities given to the great magnates by virtue of their proximity to the king, which, of course, were extant not just in the law courts but in every aspect of their public lives.

March 18 1334 Towcester

To the justices of the Bench. Order to proceed in the plea which Robert de Champagne brought before them against Henry, earl of Lancaster, for 56 acres of land and 5 acres of meadow in Duffield, as his right and inheritance, but not to proceed to render judgement without consulting the king, as Robert has shown by his petition before the king and his council in the last parliament at York that the said earl, pleading before the justices in that suit, alleged that he held the honour of Derby for himself and for the heirs of his body by the gift and grant of Henry III, and he exhibited the present king’s charter confirming this grant before the justices of the Bench; and that the said land and meadow are parcel of that honour, so that the earl ought not to answer thereupon without consulting the king, wherefore the justices delayed to proceed in that plea, whereupon Robert has besought the king to provide a remedy.[4]                                                                              By pet. Of C

CCR 1333-1337, pp. 209-10.

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[1] G. Post, ‘A Romano-Canonical Maxim, ‘Quod Omnes Tangit’, in Bracton’, Traditio, 4 (1946), pp. 197-251.

[2] Ibid, p. 208.

[3] CCR 1330-1333, p. 369; CCR 1333-1337, pp. 209-10; CCR 1333-1337, p. 218; CCR 1333-1337, p. 413.

[4] My italics. 

Equity and Edward III: An example

Copied below is a letter patent of Edward III which provides an interesting example of the justice inherent in the person of the king in practice, in an important land settlement between two very important men, John Warenne, earl of Surrey, and Richard Fitz Alan, earl of Arundel. After Edward III had granted that Warenne could enfeoff the king of all his lands, the earl of Arundel managed to appeal to ‘the court of his [Edward III’s] conscience’ and have this decision reversed, thus securing himself a large chunk of Warenne’s estates on the latter’s death. Edward’s use of ‘the court of his conscience’ in this case is a striking example of the potential of the king to apply equitable jurisdiction in accordance with the principles of natural law - known to him through his divine right to rule -  in a complicated legal dispute, the moral aspect of which the common law was inadequate to hear. This case provides a succinct reminder of the role of the king as the personal fount of justice, as well as emphasising the informal nature of early equity.

November 20 1346

Whereas of late it was agreed upon between the king and John de Warenne, earl of Surrey, that the earl should enfeoff him in perpetuity of all his lands in the county of Sussex, Wales and elsewhere, which the king was given to understand could be done without prejudice to any one, it was afterwards asserted by Richard, earl of Arundel, who came to the king when he was on his passage, near the Isle of Wight, that such feoffment would be to his disherison because that in the event of the death of the earl of Surrey without heir of his body, the lands are known to pertain to him, and the king, at his prayer, commanded John de Offord, king's clerk, dean of Lincoln, the chancellor, by writ of privy seal, and afterwards by word of mouth by William de Clinton, earl of Huntingdon, to cause execution of the feoffment to be stayed until further order; now on revolving the matter in the court of his conscience it seems that he ought not to receive such feoffment and in consideration of the service of the petitioner in the war of France, he has granted that the same shall not be carried into execution. By K.

CPR 1345-1348, p. 480. (My italics)

The deposition of Edward II and the strengthening of royal authority

On 25 January 1327, following the deposition/abdication of Edward II by his wife Isabella and her lover Roger Mortimer, Edward of Windsor as heir to the throne was crowned Edward III, king of England. The removal of Edward II from his kingly office is often highlighted as a watershed moment for the institution of monarchy; the deposition of 1326-7 formed a precedent that haunted kingship and that eased the events of 1399, and ultimately of the Wars of the Roses. The great literature on the questionable authority for Edward II’s removal, the place of parliament in this and whether or not the deposition was unconstitutional need not be rehearsed here as the most basic understanding of its impact are generally agreed. Essentially, kingship was much less sacred in 1328 than it had been in 1325. The monarchy had been greatly weakened. Accounts of Edward’s personal reign, starting from 1330 when he forcibly took power from Mortimer and Isabella, are unanimous in taking as their starting point the damaged position of the monarchy.[1] Edward’s reign, particularly the period up to 1341, is portrayed as being dominated by the overwhelming need to rebuild the prestige of the monarchy after the damage wrought to it by the removal of Edward II. One of the most prominent threads in the historiography of the reign is that Edward managed to rehabilitate the relationship between the monarchy and the higher nobility, who had been instrumental in the overthrow of Edward II, either by conceding royal rights and instead fostering bonds of chivalry, or by appeasing the troublesome barons with a judicious distribution of patronage. Whatever the explanation of the success between Edward and his nobles, the essential paradigm of Edward’s need to re-establish the reputation of the crown has remained the same.

It would be extremely difficult - not to mention historically spurious - to deny the importance of the deposition of Edward II as a precedent for future action that could be used by parties that found themselves in opposition to the crown. However, it may be worth considering the events of 1327 and their impact on the crown in a different light, if only to postulate a different aspect of thought in a generally unanimous debate. The monarchy was, of course, of unparalleled importance in the polity. It was this importance that forced the community into deposing inadequate kings, since the office of the crown was simply too important to be held by the actively bad (Edward II, Richard II) or, indeed, the simply inactive (Henry VI). The deposition of Edward II confirmed the fundamental centrality of kingship to the political structure developing in England. By deposing the king and accelerating the succession of Edward III the community of the realm confirmed that the strong, centralised kingship that had developed in the thirteenth century, particularly in the reign of Edward I, was the best way of guaranteeing the prosperity of the body politic.[2] There was no suggestion of, for example, a baronial council controlling a puppet Edward II, or of the great magnates attempting to disengage from the monarchy and retreat into a system akin to that of the semi-autonomous fiefs in the localities that characterised the French polity. Instead, the deposition and its necessity paradoxically placed the community of realm even more firmly under the ultimate authority of the king, namely Edward III, by emphasising in the most dramatic way possible the central importance of the crown to good governance. Perhaps, then, while acknowledging the importance of the deposition as a precedent, we may see the situation in 1330 as one where Edward faced a great responsibility and huge expectations precisely because the importance of kingship had been demonstrated so startlingly in the previous reign. Rather than looking for reasons for Edward’s success in securing such ardent service from a disenchanted baronage, we can see the events of 1327 as proof that the great magnates needed Edward III as much as he needed them.

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[1] For example, J. Bothwell, Edward III and the English Peerage: Royal Patronage, Social Mobility and Political Control in Fourteenth-Century England (Woodbridge, 2004), p. 4; W.M. Ormrod, Edward III (London, 2011), p. 97; C. Valente, ‘The Deposition and Abdication of Edward II’, English Historical Review, 113 (1998), pp. 852; C. Shenton, ‘The English Court and the Restoration of Royal Prestige, 1327-1345’ (University of Oxford unpublished DPhil thesis, 1995), pp. 7-9; to a lesser extent C. Carpenter, The Wars of the Roses: Politics and the Constitution, c. 1437-1509 (Cambridge, 1997), p. 40.

[2] John Watts has made a similar point, to which this short piece owes a great deal, concerning the primacy of royal legislation. See J. Watts, The Making of Polities: Europe, 1300-1500 (Cambridge, 2009), p. 219.

Edward III, a royal favourite and the authorisation of royal letters

In later medieval England, the proper authorisation of letters to chancery formed an important part of the bureaucratic authority that underpinned the governance of the realm. Royal seals were required to authorise the most important letters since only royal authority was thought sufficient to move the great seal, and so endorse the chancery documents that formed the material essence of royal government. This short piece examines three very unusual writs, authorised with the seal of the king’s closest companion, William Montagu, that stand outside the normal process of authorisation. The influence of these unusual documents in the historiography of relations between William Montagu and Edward III is noted, and an alternative interpretation of the writs is given.

C 81/1538/22 Warrant from the council endorsed by the seal of William Montagu, March 18 1335

‘Saluz et bon amour. Come noz chers en dieu le Supperiour et Covent de Merton nous aient cartefietz par leur lettres patentes queles nous vous envenoms encloses desoutz le seal nostre cher et foial monseigneur William de Montagu….Donne a nostre Tour de Londres desoutz le seal Monseigneur William avantdit le XVIII iour de Martz.’

                                                                                                Par le Consail

A letter patent signifying royal assent to the election of Thomas de Kent as prior of St Mary’s, Merton, was issued on March 24 (CPR 1334-1338, p. 87).

C 81/1330/11 Writ in Favour of Sibyl de St. Martin, March 20 1335

‘…..done a Westmoustier souz le seal nostre foial et loial monsire William Montagu le XIX. Jour del mois de Mars lan de nostre regne IX’

Adhering to the request of this writ, a license for Sibyl de St. Martin to marry whoever she wished was issued on March 19, with the letter patent bearing the note of warranty ‘by p.s’ (CPR 1334-1338, p. 87).

C 81/1330/24 Letter to William Zouche, requesting a letter of protection for Thomas Gray, 20 June 1336

‘…Done souz le seal Monsire William de Montagu a la ville de Seint Johan, par reson qe nous ne avioms mie nostre seal ovesque nous illoeques, le XX. jour de Juin lan de nostre regne disme.’

The above royal writs, which would normally be authorised by one of the king’s privy seal, were all issued under the authority of William Montagu, the greatest friend and confidant of Edward III until the former’s death in 1344. The use of an earl’s seal to warrant royal letters to chancery represents a highly irregular deviation from the normal administrative process which depended on the acceptance of only those writs endorsed with accepted royal warranty. The use of Montagu’s seal in authorising such letters has been seen by W.M. Ormrod as part of the harmful monopoly of favour and counsel exercised by Montagu over the king, which alienated other members of the aristocracy as they were denied their important role within the polity of counselling the king. In Ormrod’s words, by using his seal to represent the authority of the council and the king ‘Montagu…exercised an influence quite out of proportion to his station’ (W.M. Ormrod, The Reign of Edward III (London, 1990, p. 107).[1] Ormrod then uses this interpretation to show that the crisis of 1340-1 was heavily influenced by the presence of a court clique, of which Montagu was the most conspicuous member.

There is little evidence for this interpretation. Warrants C 81/1538/22 and C 81/1330/11 both served their purpose, as both were accepted without issue by chancery as being sufficient to authorise letters patent.  The fact that C 81/1538/22 was under Montagu’s seal but was endorsed ‘par le Consail’ does not necessarily imply that Montagu was usurping the authority of the council; rather, the warrant, and its acceptance by chancery, seems to show that Montagu’s authority was associated with, and not opposed to, that of the council (whose authorisation was thought sufficient for the issuing of letters patent). Indeed, the use of Montagu’s seal could be seen as a matter of convenience, with there being no need to use the privy seal since Montagu’s seal was thought sufficient by the council. Similarly, that the letter patent resulting from C 81/1330/11 was authorised ‘by p.s’ shows that Montagu’s writ was accepted as a makeshift writ of privy seal, and therefore as sufficient for the authorisation and enrolment of a letter patent.

Again, the use of Montagu’s seal in C 81/1330/24 need not be equated with any usurpation of royal authority resulting from Montagu’s favoured position. This time, the use of Montagu’s seal to authorise a royal writ can be explained by internal evidence. As justified in the letter, Montagu’s seal is being used in the absence of the privy seal at Perth. The period in which C 81/1330/24 was written saw Edward undertake a risky dash from Newcastle to Berwick via Perth in order to meet his gathering army. Montagu was one of very few men to accompany the king on this unplanned expedition, and was certainly the most important, so in the absence of the usual method of privy seal warranty Montagu’s seal was the best alternative.[2]

I would suggest, then, that a closer inspection of the three royal writs authorised by William Montagu does not support the thesis that Montagu was occupying the position of a harmful royal favourite. Instead, the use and acceptance of Montagu’s seal on these writs seems to point in the opposite direction. This conclusion needs to be bourne in mind when the crisis period of 1340-1 is approached. 

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[1] It should be recognised that Ormrod’s opinion of Montagu’s influence is very different, and probably much more accurate, in his Edward III (Yale, 2011) but his warranting of royal writs is not directly addressed.

[2] For Edward’s journey from Newcastle to Berwick and Montagu’s participation see BL Cotton MS Nero C VIII fol. 241. 

Did William Bohun take part in the coup of October 1330? A simple question without a simple answer...

At Nottingham Castle on the night of October 19 1330 a highly dramatic, and hugely important, coup took place. This coup saw the end of the regime of Queen Isabella and her lover Roger Mortimer, who together had (mis)ruled England since their equally dramatic overthrow of Edward II in 1326, and marked the beginning of the personal rule of Edward III. That night, the young king Edward, accompanied by a small group of companions, broke into Nottingham castle through the tunnels lying beneath the keep and captured his nemesis Mortimer.

Such an event has naturally attracted scholarly attention. However, the precise composition of participants of the coup , despite Caroline Shenton's attempt to establish this group with finality, in J. Bothwell (ed.) The Age of Edward III (Woodbridge, 2001), remains debateable. Whether William Bohun was at Nottingham that night seems unclear. Bohun, a younger son of a comital family, went on to become Earl of Northampton, and enjoyed a highly notable career as one of the standout generals of the Hundred Years War before his death in 1360. Bohun's creation as earl, along with that of William Montagu, William Clinton and Robert Ufford (all of whom definitely participated in the coup), has been cited as evidence for his presence at Nottingham: essentially, Edward was rewarding a group of able men who had proved their loyalty in the most extreme circumstances.

Such a connection is strengthened by the evidence of The Brut chronicle, which records William Bohun as present (p. 269). This evidence has been used by Richard Barber in his recent book Edward III and the Triumph of England (London, 2013) p. 63 n. 64 and, perhaps more importantly, by W.M. Ormrod in his entry in ODNB (although not in his Edward III (Yale, 2013). Caroline Shenton, however, has used the absence of Bohun from the pardons granted to certain participants of the coup (including Montagu, Ufford and Clinton) in its aftermath to argue that William Bohun was not present. The evidence of the pardons, then, contradicts that of The Brut, and, with the limitation that only certain participants took out individual pardons, added to the general unreliability of chronicle sources, it seems something of a toss up as to which argument over William Bohun's presence is preferred.

However, the evidence of Edward's rewards to his companions in the months following the coup may offer additional weight to the interpretation that William was not present. William Montagu, William Clinton and Robert Ufford all received substantial rewards immediately after the coup, ranging in value from £1,000 land and rent to Montagu, to 300 marks of the same to Ufford (see the text/translation entry for the November Parliament of 1330 in PROME and CFR 1327-1337, p. 204). Most importantly, Edward Bohun, William's twin brother, who received a pardon for his actions at Nottingham, also received a substantial reward of 400 marks worth of land and rent. William Bohun received no such reward. He is conspicuous by his absence from the list of rewards as well as the list of pardons. It seems highly probable that, had he been at Nottingham, he would have been rewarded along with his twin brother and the other participants. We may, therefore, concur with Shenton's argument, bolstered as it is by this additional information.

It is with this in mind that we return to William Bohun's creation as earl of Northampton in 1337. If Edward was not rewarding Bohun for his efforts at Nottingham Castle, then what was he doing? The answer to such a question, I believe, is that Edward was elevating Bohun in order to enable one part of the comital support needed for the effective prosecution of his duties of kingship, the obligations of internal peace and external defence inherent in the office of the Crown. Seeing Bohun's elevation in the light of his king's public function, rather than as a symptom of their more 'private' relationship, has implications for our view of Edward's creations of 1337, and the place of these creations in the framework of Edward's kingship, but such things do not, perhaps, belong in a blog...

Matt Raven