Liberties and Identities in the Medieval British Isles 1843833743, 9781843833741

In-depth examinations of the role played by liberties across the British Isles.

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Liberties and Identities in the Medieval British Isles
 1843833743, 9781843833741

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Regions and Regionalism in History

10

Liberties and Identities in THE Medieval BritISH ISLES

The liberties and franchises of medieval England have been a neglected area of study in recent years, yet they were an important aspect of government and society, providing an influential basis of collective awareness, aspiration and loyalty. The papers in this volume examine them in a wide British context (the north of England, the Welsh march, Ireland and Scotland), from the twelfth to the sixteenth centuries, looking at the varied role that liberties played in defining local identities and providing bases of power; other topics addressed include their maintenance of law and order, as well as the threat they might present, and their part in military recruitment.

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Regions and Regionalism in History ISSN  1742–8254 This series, published in association with the AHRB Centre for North-East England History (NEEHI), aims to reflect and encourage the increasing academic and popular interest in regions and regionalism in historical perspective. It also seeks to explore the complex historical antecedents of regionalism as it appears in a wide range of international contexts. Series Editor Peter Rushton, University of Sunderland Editorial Board Fergus Campbell, University of Newcastle Bill Lancaster, University of Northumbria Christian Liddy, University of Durham Diana Newton, University of Teesside Proposals for future volumes may be sent to the following address: NEEHI, School of Arts and Media, University of Teesside, Middlesbrough, TS1 3BA Previously published volumes are listed at the back of this book.

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Liberties and Identities in THE Medieval BritISH ISLES

Edited by MICHAEL PRESTWICH

THE BOYDELL PRESS

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©  Contributors 2008 All Rights Reserved. Except as permitted under current legislation  no part of this work may be photocopied, stored in a retrieval system,  published, performed in public, adapted, broadcast,  transmitted, recorded or reproduced in any form or by any means,  without the prior permission of the copyright owner First published 2008 The Boydell Press, Woodbridge ISBN  978–1–84383–374–1

The publication of this volume was generously assisted by  The Strathmartine Trust.

The Boydell Press is an imprint of Boydell & Brewer Ltd  PO Box 9, Woodbridge, Suffolk IP12 3DF, UK  and of Boydell & Brewer Inc.  668 Mt Hope Avenue, Rochester, NY 14620, USA  website: www.boydellandbrewer.com A catalogue record for this book is available  from the British Library This publication is printed on acid-free paper Printed in Great Britain by  Antony Rowe Ltd, Chippenham, Wiltshire

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Contents List of maps

vi

Abbreviations

vii

Introduction

1

1 States, liberties and communities in medieval Britain and Ireland (c.1100–1400) Keith Stringer

5

2 Arbitration and Anglo-Scottish border law in the later middle ages Cynthia J. Neville

37

3 Peacekeepers and lawbreakers in medieval Northumberland, c.1200–c.1500 Henry Summerson

56

4 War, lordship, and community in the liberty of Norhamshire M.L. Holford

77

5 The lordship of Richmond in the later middle ages Melanie Devine

98

6 ‘Tam infra libertates quam extra’: Liberties and military recruitment Michael Prestwich

111

7 Neighbours from Hell? Living with Tynedale and Redesdale, 1489–1547 Claire Etty

120

8 Striving for Marcher liberties: The Corbets of Caus in the thirteenth century Max Lieberman

141

9 Franchises north of the border: Baronies and regalities in medieval Scotland Alexander Grant

155

10 The liberties of Ireland in the reign of Edward I Beth Hartland

200

Index

217

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Maps 1. Major Liberties in the British Isles, c.1250 2. The central Welsh borders, showing places mentioned in the text 3. Parishes, baronies, earldoms and lordships in early fifteenth-century Scotland 4. Regalities, earldoms and lordships in early fifteenth-century Scotland 5. Earldoms, lordships and sheriffdoms in early thirteenth-century Scotland

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6 142 162–63 170 185

Abbreviations ALA Archives Loire-Atlantique APS Acts of the Parliaments of Scotland, ed. T. Thomson and C. Innes, 12 vols. in 13 (Edinburgh, 1814–75) BL British Library Cal. Inq. Misc. Calendar of Inquisitions Miscellaneous, 1219–1307 (London, 1916) Camden Soc. Camden Society CCR Calendar of Close Rolls CDI Calendar of Documents, relating to Ireland, preserved in Her Majesty’s Public Record Office, London. 1171–1307, ed. by H.S. Sweetman, 5 vols (London, 1875–86) CDS Calendar of Documents Relating to Scotland, 1108–1509, ed. J. Bain, G.G. Simpson, J.D. Galbraith, 5 vols. (London, 1881–1986) CFR Calendar of Fine Rolls CIPM Calendar of Inquisitions Post Mortem CJR Calendar of the Justiciary Rolls Ireland, 1295–1314, ed. J. Mills et al., 3 vols. (Dublin and London, 1905–56) CPR Calendar of Patent Rolls CR Close Rolls DB Domesday Book DCM Durham Cathedral Muniments EHR English Historical Review Excerpta e Excerpta e Rotulis Finium, 1216–1272, ed. C. Roberts, 2 vols.   Rot. Finium (London, 1835–36) Foedera, ed. Foedera, conventiones et litterae etc., ed. T. Rymer, 10 vols.  Rymer (Facsimile of The Hague Edition, 1739–45) HMC Historical Manuscripts Commission HR Historical Research IHS Irish Historical Studies LP Letters and Papers, Foreign and Domestic, of the Reign of Henry VIII, 21 vols. (London, 1862–1932) NAI National Archives of Ireland NCH Northumberland County History Committee, A History of Northumberland, 15 vols. (Newcastle, 1893–1940) NDD Northumberland and Durham Deeds from the Dodsworth

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viii

ABBREVIATIONS

MSS, ed. A.M. Oliver, Newcastle upon Tyne Records Committee 7 (1929 for 1927) NLI National Library of Ireland, Dublin NYCRO North Yorkshire County Record Office Plac. de Quo Placita de Quo Warranto, ed. W. Illingworth (Rec. Comm.,   Warranto 1818) PPC Proceedings and Ordinances of the Privy Council of England, ed. H. Nicolas, 7 vols. (London, 1834–7) PRS Pipe Roll Society Rec. Comm. Record Commission RMS Registrum Magni Sigilli Regum Scotorum, ed. J.M. Thomson et al. (Edinburgh, 1882–1914) Rot. Claus. Rotuli Litterarum Clausarum, 1204–27, ed. T.D. Hardy, 2 vols. (London, 1833–44) Rot. Hund. Rotuli Hundredorum, ed. W. Illingworth, 2 vols. (London, 1812–18) Rot. Obl. et Rotuli de Oblatis et Finibus, Tempore Regis Johannis, ed. T.D.   Finibus Hardy (London, 1835) Rot. Parl. Rotuli Parliamentorum, 7 vols. (London, 1783–1832) Rot. Pat. Rotuli Litterarum Patentium, 1201–16, ed. T.D. Hardy (London, 1835) Rot. Scot. D. MacPherson et al., eds., Rotuli Scotiae in Turri Londinensi et in Domo Capitulari Westmonasteriensi asservati, ed. D. MacPherson et al., 2 vols. (London, 1814) RPD Registrum Palatinum Dunelmense: The Register of Richard de Kellawe, Lord Palatine and Bishop of Durham 1311–1316, ed. T.D. Hardy, 4 vols., RS 62 (London, 1873–8) RRS Regesta Regum Scottorum ii. The Acts of William I, King of Scots, 1165–1214, ed. G.W.S. Barrow (Edinburgh, 1971) v. The Acts of Robert I, King of Scots, 1306–1329, ed. A.A.M. Duncan (Edinburgh, 1988) vi. The acts of David II, King of Scots, 1329–1371, ed. B. Webster (Edinburgh, 1982) RS Rolls Series SHR Scottish Historical Review Stair Soc. Stair Society TCE Thirteenth Century England (Woodbridge, 1986–  ) TNA The National Archives, London TRHS Transactions of the Royal Historical Society

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Introduction

MICHAEL PRESTWICH

This volume is the product of a colloquium held at the University of Durham, as part of a research project on the liberties of north-east England in the medieval period. The project was generously funded by the Leverhulme Trust, whose assistance is gratefully acknowledged. The aim of the colloquium was to bring together scholars working in a British, rather than purely English, context, and to provide a wide perspective on the complex issues of the liberties and franchises that were such a significant part of the political, administrative and legal landscape of later medieval Britain. Liberties have received surprisingly little attention in recent years. Helen Cam’s seminal studies were followed up by D.W. Sutherland with a masterly examination of Edward I’s challenge to the liberties in his quo warranto enquiries. Legal issues dominate discussion; Naomi Hurnard’s sharp legalhistorical mind bore down acutely on the subject. Much more recently, work has been done on liberties before and after the period with which this volume is largely concerned. The Anglo-Saxon antecedents of liberties have been examined in an article by Julia Crick; the rhetoric of liberty in the pre-Conquest period meant something very different from the defined rights of later years. In important studies Tim Thornton has examined the liberties of the late medieval and Tudor periods, notably those of Cheshire and Durham. The Welsh March, with its complex amalgam of English and Welsh customs, was the subject of masterly analysis by R.R. Davies in a classic work; the importance of these



H.M. Cam, The Hundred and the Hundred Rolls (London, 1930); Liberties and Communities in Medieval England (Cambridge, 1944); D.W. Sutherland, Quo Warranto Proceedings in the Reign of Edward I, 1278–1294 (Oxford, 1963).  N.D. Hurnard, ‘The Anglo-Norman Franchises’, EHR 64 (1949), 289–327, 433–60.  Julia Crick, ‘Pristina Libertas: Liberty and the Anglo-Saxons Revisited’, TRHS, 6th ser., 14 (2004), 47–71.  T. Thornton, Cheshire and the Tudor State, 1480–1560 (Woodbridge, 2000); ‘Fifteenth-century Durham and the Problem of Provincial Liberties in England and the Wider Territories of the English Crown’, TRHS, 6th ser., 11 (2001), 83–100.

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INTRODUCTION

liberties has never been neglected. Robin Frame has estimated that over half of English-ruled Ireland lay outside shire jurisdiction, with lords of liberties operating their own exchequers and chanceries; the significance of such franchises as Trim, Kilkenny, Wexford and Carlow was immense. Detailed study of Irish liberties includes the work done by Brendan Smith on Louth, in which the issues of local identity are discussed. Terminology in Scotland is slightly different; there the regalities have received rather less attention from historians. Geoffrey Barrow commented on Robert Bruce’s creation of Moray as a regality that it ‘was an unfortunate reversion to the old “palatinate” concept familiar in Norman England’. Such an analysis saw palatinates as little more than confessions of failure by the Crown to exercise direct control throughout its dominions.’ The papers in this volume take a very different line, viewing the liberties, franchises and regalities of Britain as integral and important in medieval society, and not as manifestations of unacceptable failure on the part of the state. Keith Stringer provides a broad analysis of liberties, lay and ecclesiastical, across Britain. His concern is not that of the legal historians of a previous generation; his paper is about the ways in which liberties might influence behaviour and provide a sense of identity at a local level, focusing loyalties and aspirations. Several studies look at English liberties. Every liberty had its own unique features; the claim of the dukes of Brittany to the honour of Richmond gave it a peculiarly complex political history. Melanie Devine’s study provides interesting evidence of the long survival of ‘feudal’ traditions with a structure of homage, fees, and castle-guard carefully remembered and maintained. Matt Holford examines a small ecclesiastical liberty, that of North Durham; his arguments emphasise the extensive differences that existed between major liberties, of which the palatinate of Durham was among of the greatest, and small units which could not possess the same coherence and powerful sense of identity. The English government was often more respectful of liberties than the record of, for example, Edward I’s quo warranto enquiries might suggest. Michael Prestwich’s chapter shows that when it came to military recruitment, the crown did not always ride roughshod over the liberties, for all that commissions were appointed with full powers within and without them. In Yorkshire in particular, the liberties were used as territorial units for recruiting purposes. One of the problems often associated with liberties, and above all those of the north, is that of maintaining public order. In the absence of records from liberty courts their role in this can be difficult to discern. Henry Summerson analyses crime in Northumberland. Although his sources are largely those of the royal courts, it is possible to cast light on the role of the liberties. The evidence 

R.R. Davies, Lordship and Society in the March of Wales, 1282–1400 (Oxford, 1978); see also his ‘Kings, Lords and Liberties in the March of Wales, 1066–1272’, TRHS, 5th ser., 29 (1979), 41–61.  R.F. Frame, English Lordship in Ireland, 1318–1361 (Oxford, 1982), 25.  Brendan Smith, ‘A County Community in Early Fourteenth-Century Ireland: The Case of Louth’, EHR 108 (1993), 561–88.  G.W.S. Barrow, Robert Bruce and the Community of the Realm of Scotland (London, 1965), 398. The comment is unchanged in the fourth edition (Edinburgh, 2005), 368.

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INTRODUCTION 

points to a measure of success in keeping the peace, despite the great pressures that society faced in the north. It was, h owever, the case that the men of Tynedale and Redesdale were increasingly seen as a brutal and violent element, against whom it was hard to take effective action. Claire Etty’s paper lies slightly outside the chronological boundaries of the other studies in this volume; she examines the problems that sixteenth-century authorities faced in the north, in dealing with the violence associated with the ‘surnames’ of Tynedale and Redesdale. The problem was not new; there were complaints in parliament as early as 1414, but the scale of lawlessness looks to have reached new heights after the end of the medieval period. In the fourteenth and fifteenth centuries, as Cynthia Neville shows, the use of arbitration in the northern marches was an important manifestation of people’s desire to settle their differences rather than to resort to a cycle of ever-increasing violence. Such methods of settling disputes show that there were significant parallels between the north and the Welsh March. Max Lieberman provides the one paper in this collection that deals explicitly with a Welsh Marcher liberty, that of the Corbets of Caus. There were also substantial differences, not least the presence of both English and Welsh within the liberty. Caus, a relatively small liberty, was vulnerable, and the maintenance of its rights and privileges was no easy task, with the constantly litigious Thomas Corbet facing many problems in the royal courts. The paper makes very clear the danger of simple generalisations; each liberty needs to be treated on its own merits. Sandy Grant, in an important and wide-ranging analysis of the baronies and regalities of medieval Scotland, suggests that the country was, perhaps more than any other, a land of franchises. There was no equivalent of Edward I’s quo warranto enquiries, and no other form of aggression by the crown towards the franchises. Over twenty-five regalities were created in the fourteenth century; these grants conferred freedom from the actions of royal officials, and their holders possessed powers that were almost royal. Yet, over time, grants took an increasingly honorific form. Forfeitures and escheats, the result of political miscalculation and family failure, took a severe toll of the great regalities, so bringing more land under royal control. Beth Hartland gives this volume an Irish dimension, with her survey of the country’s liberties in Edward I’s reign. Her paper raises important questions of a more general kind, questioning for example whether there is a clear correlation between the legal rights of liberty holders and the reality of the power that they were able to exercise. Ireland offers both parallels and contrasts to the experiences of England, Wales and Scotland. The question of identity may not be directly addressed in all the papers in this volume, but it provides an underlying theme. Just as much as counties provided a sense of community and identity, so, to varying degrees, did the palatinates, regalities, franchises and liberties. These need to be considered as key elements in the complex mosaic that made up late medieval Britain. The subject is one that is of much wider significance that the traditional legal and constitutional approaches of the past may suggest.

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1 States, Liberties and Communities in Medieval Britain and Ireland (c.1100–1400)

KEITH STRINGER

The study of medieval England’s liberties, franchises, immunities or so-called ‘private’ jurisdictions has become less fashionable than used to be the case. The investigations of Warren Ault, Helen Cam, Noel Denholm-Young, and Naomi Hurnard, from the 1920s to the 1950s, were supplemented and refined in a series of local studies by, among others, Geoffrey Barraclough, Robin Du Boulay, Constance Fraser, Edward Miller, and Jean Scammell. Generally such work paid scant attention to those now familiar themes ‘community’ and ‘identity’; it centred on institutional theory and practice; and it set the history of liberties firmly within a paradigm of assimilation into the apparatus of English royal government. ‘Their inflated reputations’, as one authority concluded, ‘falsify many assessments of the effectiveness of monarchy and the possible extent of immunities in medieval England.’ The effect was to relegate liberties to the historical sidelines; and that links with more recent trends in English medieval historiography, which have tended to prioritise other power structures, notably the royal county and, above all, the state. It is quite otherwise when we shift our focus from England to the rest of the British Isles, and – thanks largely to the work of Rees Davies and Robin Frame – especially to Wales and Ireland. A glance at the geographic distribution of local power in Britain and Ireland  

This chapter is in memoriam Rees Davies, friend and mentor. J. Scammell, ‘The Origin and Limitations of the Liberty of Durham’, EHR 81 (1966), 452, with reference to the ‘palatinates’ of Chester, Durham and Lancaster.  Two recent studies of a major English liberty fall outside the period considered here: D.J. Clayton, The Administration of the County Palatine of Chester, 1442–1485 (Chetham Society, 1990); T. Thornton, Cheshire and the Tudor State, 1480–1560 (Woodbridge, 2000). Another book, M. Holford and K.J. Stringer, Border Liberties and Loyalties: North-East England, 1200–1400, is currently in press; but I have not attempted to integrate its main findings here.  R.R. Davies: Lordship and Society in the March of Wales, 1282–1400 (Oxford, 1978); ‘Kings, Lords and Liberties in the March of Wales, 1066–1272’, TRHS, 5th ser., 29 (1979), 41–61; The Age of Conquest: Wales, 1063–1415 (Oxford, 1991), chaps. 4, 10, 15. R. Frame: English Lordship in Ireland, 1318–1361 (Oxford, 1982); Ireland and Britain, 1170–1450 (London, 1998); ‘Lordship and Liberties in Ireland and Wales, c.1170–c.1360’, in H. Pryce and J. Watts (eds.), Power and Identity in the Middle Ages (Oxford, 2007), 125–38.

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KEITH STRINGER

Map 1.  Major Liberties in the British Isles, c.1250. The map is indicative rather than definitive, especially for England. Some units shown merit inclusion primarily as blocks of territorial power.

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STATES, LIBERTIES AND COMMUNITIES 

in c.1250 is instructive (Map 1). The map resembles a patchwork: counties, shires or sheriffdoms dominate large parts of the landscape; liberties hold the field elsewhere. There are considerable variations in their origins, size and privileges; but even in the most domesticated regions liberty and county lie cheek by jowl. The organising power of the king’s government is most obvious in England where ‘royal authority … was ubiquitous and, on its own terms, exclusive’. Yet liberties of various sorts (ignoring petty franchises) pepper the countryside from the south coast to the Scottish Border; and the most important ones, which are formalising their systems and practices as ‘royal liberties’, lie fully outside the normal sphere of crown jurisdiction. In Scotland there are extensive blocks of royal territory based on some twenty sheriffdoms from Berwick to Inverness; but there is no gainsaying the vast expanse of earldoms and ‘provincial lordships’ whose powers will, at later dates, often be defined or redefined by tenure ‘in free regality’. Even more completely a land of great liberties is the March of Wales; while in Ireland the districts in English control beyond Dublin and seven other counties are all occupied by liberties. On this perspective, it is England – or England south of the Trent – that appears untypical, not the fragmented governmental habitats in the vastnesses beyond it. Nonetheless England, by which is normally meant midland and southern England, still seems to steal the historical limelight; or rather, it is preferable to say, what deflects attention from the historical realities is the fascination medieval historians have had for the power of the state. That fascination remains pronounced; but there are signs it has begun to run its course. Two appraisals of some relevant literature, published in 1994 and 2003, may serve to indicate how far conventional wisdom has been challenged over the last twenty years.10 In 1994 tribute was paid to the work of Davies and Frame in illuminating the myriad forms of power that penetrated and interacted with societies in the medieval British Isles. Other scholars, including those whose concern was the early modern period, were likewise  



 

10

R.R. Davies, The First English Empire: Power and Identities in the British Isles, 1093–1343 (Oxford, 2000), 93. A. Grant, ‘Franchises North of the Border: Baronies and Regalities in Medieval Scotland’, below, 167–72, 193–5. My own view of the history of Scottish regalities has been partly shaped by discussions with Sandy Grant over many years. Since his most developed analysis is now available, reference to his earlier work on the subject is unnecessary here. As Adrian Empey has stressed in S.J. Connolly (ed.), The Oxford Companion to Irish History (Oxford, 1998), 314: ‘At times in the 13th century it would have been possible to travel from Hook Head in Wexford to Dunluce on the coast of Antrim passing through only one narrow strip of royal territory in Louth.’ Cf. J. Campbell, The Anglo-Saxon State (London, 2000), 52: ‘it is almost as if there are two Englands and one of them is called Scotland’. More recent reinforcements of state-centred paradigms include A. Harding, Medieval Law and the Foundations of the State (Oxford, 2002); A. Jobson (ed.), English Government in the Thirteenth Century (Woodbridge, 2004). K.J. Stringer, ‘Social and Political Communities in European History: Some Reflections on Recent Studies’, in C. Bjørn, A. Grant and K.J. Stringer (eds), Nations, Nationalism and Patriotism in the European Past (Copenhagen, 1994), 9–34; R.R. Davies, ‘The Medieval State: The Tyranny of a Concept?’, Journal of Historical Sociology 16 (2003), 280–300.

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KEITH STRINGER

adding new dimensions to debates about state-formation by highlighting how far the modalities and scale of domination depended on local or regional power structures, relations and aspirations. Nor had the orthodoxies about late medieval England escaped unscathed, for a thesis was emerging that stressed not so much comprehensive direction from the centre as the extent to which government was mediated through, and contingent on, other political forces. Relatedly historians were exposing the problematic nature of the dictum that polities lacking highly centralised institutions and complex bureaucracies were automatically ‘weak’. Within political sociology, Michael Mann’s analyses of ‘social power’ were also very relevant to such considerations. For all the administrative-bureaucratic reach of the pre-industrial state, Mann argued, governmental pluralism prevailed; indeed a greater concentration of power was created when the centre cooperated with local authorities than when it attempted to impose itself on them. The same themes were stressed by John Hall and John Ikenberry vis-à-vis the modern state: above all it is an error to equate the strength or autonomy of the state with the ability of state elites to ignore other social actors or to impose their will in any simple manner on society. If this were the case, totalitarian states, which seek to suppress the independence of other social actors, would be most capable of realizing state goals … Such a conclusion is not justified: a deeper dimension of state power has more to do with the state’s ability to work through and with other centres of power. The capacity of states to act rationally is furthered and not curtailed when the state co-ordinates other autonomous power sources.11

In 2003 it was possible to take an even more critical view of the supposedly all-powerful state. Rees Davies drew on a rich array of recent and not-so-recent contributions to develop for medievalists an agenda for relocating the state in their thinking, preoccupations and order of priorities. Characteristically he chose his words with care. At root he did not seek to suppress a conceptual label, still less to deny (no more than I would wish to deny) that by 1296 the British Isles contained two of those well-grounded kingdoms from which the modern West European state was born. Rather did he urge us to recognise that medieval government was less uniform and unipartite than étatist story-lines presuppose. ‘We should’, so we learn, ‘beware of reifying the state, of accepting its own definition of, and apologia for, itself.’ Attention was drawn to the complex sources of power – its ‘alternative nodal points’, its ‘multiplex nature’, and its ‘plurality and overlapping context’; to how a ‘promiscuous’ statist discourse ‘imposes images of … authority which are both much too clear-cut and construct the world on terms on which centralizing power wished it to be understood’; and to the distortions that arise from assuming that the state was inevitably and everywhere the ‘universal datum’.12 Liberties are by their nature central to such reflections and propositions. 11 12

Quoted in Stringer, ‘Social and Political Communities’, 22–3. Davies, ‘Medieval State’, 289–91, 293, 295–6.

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STATES, LIBERTIES AND COMMUNITIES 

Indeed Davies reinforced his arguments by specific reference to his own work on the Marcher lordships of Wales. As he expressed it: English royal writs were not served in these lordships; the king’s justices did not visit them nor did English law extend to them; and – with one exception – royal taxes were not collected from them. They are often termed “private lordships” or “immunities”; but both these phrases posit – and privilege – a unitary, centralized power. [Yet] by almost any criteria we care to adopt the Marcher lordships were virtual “states”. Their lords called themselves “lords royal”; they raised their own taxes and mustered their own armies; they exercised what they called “regal jurisdiction” and … they referred to the inhabitants of their lordship as “their subjects”; they claimed and exercised the right to wage war … It would surely be casuistical to exclude them from being … considered for membership – honorary membership, maybe – of the roster of medieval states as often nowadays defined by historians. Instead they have been cast into the oubliette as anomalous appendages of the English state … caught in a time-warp and awaiting absorption into the English/British state.13

* What can a broader view of the greater liberties in medieval Britain and Ireland contribute to our understanding of the organisation of power and society? Such a question is the more difficult to address because their history varies according to time and place; nor do we always have definite evidence concerning lords’ administrative and judicial powers. Everywhere, indeed, the pre-1200 frameworks of local authority slip rapidly in and out of focus. Most ‘liberties’ first emerge as personal or territorial superiorities rather than institutional entities. They were not yet pinned down by strict legal or constitutional criteria; and, virtually throughout our period, the jurisdictional architecture developed gradually, and in response to changing needs and rules of government and law. But any review of the origins of the prerogatives and rights the major liberty-holders would lay claim to and flaunt must give due prominence to aristocratic colonisation and domination. In Scotland, for example, by the 1150s the king’s AngloNorman allies had secured a network of influential frontier commands, notably Liddesdale, Annandale, North Kyle, Cunningham and Renfrew; by the 1190s the Murrays had begun to ensconce themselves in Sutherland; by the 1230s the lordship of Badenoch had been created for, or taken over by, the Comyns; and by the 1260s the Stewarts had mastered Arran, Bute and Cowal. These power zones were not yet called ‘regalities’; but they were mighty units of territorial rule that bear comparison with the contemporary magnate supremacies developed in Wales and Ireland, not to mention the great honours or castellaries that had spearheaded the Norman Conquest of England itself. In the early twelfth century it was already common practice for lords to have their titles validated by written royal grants; and so it was that kings set their 13

Ibid., 294.

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10

KEITH STRINGER

seals to the exercise of local power. But David I’s charter of Annandale (1124) is typical in that it does not spell out the lord’s governmental rights, though it does equate them to ‘all those customs Ranulf Meschin ever had in Carlisle and his land of Cumberland’.14 Such charters nevertheless prepared the way for the development of the principle that all administrative exemptions and judicial authority derived from the crown; and in the thirteenth century nowhere was that principle promoted more eagerly and stridently than by the English king and his lawyers. But (as Rees Davies might have said) the maxim of a hierarchical delegation of rule-enforcing rights and powers presents a neat-and-tidy view of the world as visualised by the state. It leads all too easily to the notion that ‘the right to exclude elements of royal authority had become the privilege of exercising them’, as if a royal mastermind laid out in detail the landscape of rulership and governance;15 and to apply Bractonian models to the twelfth century, or even to later periods, exaggerates both the central authority’s possession of local power and its ability to define its contours. Something of the nature of that power is revealed by the Gesta Stephani, which deals with a war-torn and fractured England: there was increasingly limited contact between crown and locality; the king was often unable to control the processes of ‘delegation’ even where he had something concrete to give; and magnate power came into its own. The earl of Chester ‘afflicted the whole of the North with an unending persecution’; the earl of Gloucester ‘put almost half of England … under [his] own laws and ordinances’; the earl of Essex ‘took the king’s place everywhere in the kingdom and … received more obedience when he gave orders’. Behind the hyperbole lay important realities. Such lords imposed their dominance by any means at their disposal: they might make war and peace; levy their own taxes; control boroughs and mints; run the county courts and hold crown pleas.16 Stephen’s reign was of course an exceptional era in the history of twelfth-century England; yet the circumstances were not so different from those that had confronted – or would confront – aristocratic colonisers seeking to establish themselves in lands of war. In similar fashion they structured their power and prerogatives according to the task in hand. A later earl of Gloucester was given carte-blanche by Henry III ‘to conquer all the lands he can from the Welsh … without any claim by the king’; and in 1281 he was to justify his jurisdiction in the March by right of ancient and recent conquest.17 The first English conquerors in Ireland like Courcy and Strongbow had had no less free rein to translate might into rights. By the same token, the lord of Redesdale would defend his franchises in 1279 by reference to the authority assumed by his ancestors to enforce their lordship prope marchiam 14 15 16

The Charters of King David I, ed. G.W.S. Barrow (Woodbridge, 1999), no. 16. J.W. Alexander, ‘The English Palatinates and Edward I’, Journal of British Studies 22 (1983), 7. Gesta Stephani, ed. K.R. Potter and R.H.C. Davis (Oxford, 1976), 149, 151, 161, 167. For a recent analysis, see G. White, ‘Earls and Earldoms during King Stephen’s Reign’, in D. Dunn (ed.), War and Society in Medieval and Early Modern Britain (Liverpool, 2000), 76–95. 17 R.R. Davies, Domination and Conquest: The Experience of Ireland, Scotland and Wales, 1100–1300 (Cambridge, 1990), 74; Davies, ‘Kings, Lords and Liberties’, 47.

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Scotie. It was a past he and other liberty-owners in England remembered as one of undelegated jurisdiction; nor was it altogether an invented past.18 Edward Miller put the position as follows: ‘The “Norman” conquest of the north, like the establishment of “Normans” in Wales and Lowland Scotland, was in large measure an achievement of private enterprise.’19 But Scotland, we now teach, was different. Incoming magnates settled by permission of the Scots crown, whose government was well organised in many parts of the kingdom; and so indeed it was. Yet in remoter areas these magnates had more of a monopoly on shaping local authority and rights than a crown’s-eye view might suggest. After all, the 1124 Annandale charter conveys only a hazy sense that the king was the ‘universal lord’ or ‘fount of justice’: it did not stipulate any royal claims of service, or even that the district was to be held of the king; and Ranulf Meschin’s ‘customs’ had in fact been full jurisdiction in an area lacking a framework of crown control.20 Allowance has also to be made for Scotland’s ‘Celtic’ earldoms, whose prerogatives presumably derived by prescription from the old mormaerships; for independent structures like Galloway which were to be absorbed on terms, or those like Man which were scarcely to be absorbed at all; and – to touch on southern Scotland when, from 1296, it was a war zone – for the Scottish Border regalities, control of which, it has been claimed, stemmed ‘not simply [from] royal patronage, they were “won in war” directly’.21 Viewed against such a backcloth, the relationship between central and local authority, in Scotland and elsewhere, is best seen in terms of power-sharing, even of the parallel growth of power.22 Of course royal ambition, policy and might cannot be counted out. It would be absurd to suggest otherwise, even as regards the ‘edges’ of the British Isles. ‘Have you forgotten’, quoted the scholar to his master’s approval, ‘that kings’ arms are long?’23 The Welsh March remained in a remarkable sense detached from the governmental and legal systems of the English kingdom; yet it was in the ‘context of royal power and ultimate control that Marcher liberties developed and were eventually defined’.24 Henry II’s charter of Meath (1172) granted it with ‘all rights and free customs I have or could have there’. But very different was the attitude of King John, who drew the Irish liberties firmly within the 18 19 20

21

22

23 24

N.D. Hurnard, ‘The Anglo-Norman Franchises’, EHR 64 (1949), 314; D.W. Sutherland, Quo Warranto Proceedings in the Reign of Edward I, 1278–1294 (Oxford, 1963), esp. 82, 102, 183. E. Miller, ‘The Background of Magna Carta’, Past & Present 23 (1962), 76. Cf. R. Sharpe, Norman Rule in Cumbria, 1092–1136 (Cumberland and Westmorland Antiquarian and Archaeological Society, Tract Series, 2006), 52: ‘He was neither earl nor sheriff, but, in unstructured terrain, his role was to act as the king’s man in governing the entire district.’ M. Brown, ‘ “Rejoice to hear of Douglas”: The House of Douglas and the Presentation of Magnate Power in Late Medieval Scotland’, SHR 76 (1997), 179. For Galloway and Man, R.D. Oram, The Lordship of Galloway (Edinburgh, 2000); T. Thornton, ‘Scotland and the Isle of Man, c.1400–1625: Noble Power and Royal Presumption in the Northern Irish Sea Province’, SHR 77 (1998), 1–30. On power-sharing, note the comment of Lucian of Chester in c.1195 that Cheshire’s privileges derived from ‘the indulgence of kings and the greatness of the earls’, quoted in G. Barraclough, The Earldom and County Palatine of Chester (Liverpool, 1951), 37, n. 4. Dialogus de Scaccario, ed. C. Johnson (London, 1950), 84. Davies, ‘Kings, Lords and Liberties’, 55.

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scope of regnal authority by reserving four crown pleas (rape, arson, treasure trove, forestall);25 by bringing all church land under the jurisdiction of his sheriffs; and by asserting his right to levy general taxation. Nor did outlying Scottish provinces escape the penetrative power of royal control and supervision. The ancient territories of the mormaers (earls) might well be perforated by royal thanages; cáin (tribute) was due to the king even from Argyll and Galloway. William I’s re-grant of Annandale (c.1170) imposed knight-service obligations and allowed limited justice to its lord by saving ‘the royal rights pertaining to my regality’ – namely, pleas of rape, arson, treasure trove, murder, premeditated assault, and robbery.26 It was later explained that, though royal agents were barred from Annandale, its coroner was chosen from the tenantry at the king’s pleasure and answered to his justices at Dumfries; in 1270 its lord was obliged to concede that custody of benefices during vacancies of the see of Glasgow was the crown’s prerogative right.27 Annandale subsequently became a regality; but while regalities had powers of ‘royal administration and justice’ almost on a par with the Welsh Marcher lordships, to call them ‘bastions of feudal autonomy’ overstates the case.28 Robert I’s charter of the earldom of Moray (1312) – to be held with crown pleas ‘as any land within the kingdom can most freely … be given or held in regality’ – reserved the castle-burgh of Inverness and royal lordship over senior churchmen. David II’s charter of the earldom and regality of Wigtown (1341) excluded the patronage of the see of Whithorn and specified that the burgesses of Wigtown were to retain their customary freedoms.29 Moreover, regalities did not escape royal taxation; and their courts were part of an interlocking justice system, linked by processes of appeal and review to the king’s council or Parliament.30 One can easily continue in such a vein. Even liberties in the Welsh March were subject to royal rights of wardship and marriage, and (at least in theory) to process of error or false judgement. All liberty-holders were liable to forfeiture, temporary or otherwise, for contempt of the king, disloyalty or misgovernment; and even a selective roll call underscores that this was no empty threat: Ulster (1210, 1319), Ely (1257), Kildare (c.1276, 1345), Brecon (1292), Copeland

25 26 27 28 29

30

An exception must be made of Trim, whose lord held all crown pleas. For the Meath charter, see Calendar of the Gormanston Register, ed. J. Mills and M.J. McEnery (Dublin, 1916), 177. RRS, ii, no. 80. CDS, ii, no. 1588; Facsimiles of National Manuscripts of Scotland (Southampton, 1867–71), i, no. 61. R. Nicholson, Scotland: The Later Middle Ages (Edinburgh, 1974), 112. For the phrase regalis administratio et justitia, see RMS, i, Appendix I, no. 32. RRS, v, no. 389; vi, no. 39. Similarly, Robert I’s charter of Man in free regality (1324) had reserved the patronage of the bishopric; it also imposed on the lord the duty of personal attendance at the Scottish Parliament: Reg. Mag. Sig., i, Appendix I, no. 32. H.L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993), esp. 55–6.

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(1292), Glamorgan (1292, 1295, 1297), Durham (1302, 1305), Kerry (1345), Wigtown (c.1360), Annandale (1401).31 It must also be stressed that as a rule English power-builders in twelfth-century Scotland, Wales and Ireland were trusted members of royal households; and that the local dominance of their successors often depended in part on position and influence at court. Ecclesiastical liberty-owners were usually crown nominees and even more likely to belong to the ‘establishment’.32 Nor was it by any means rare for liberties to be controlled by prominent royal kin. The prime example from thirteenth-century England is provided by the earldom of Chester, which in 1254 was granted to the Lord Edward on condition that it ‘should never be separated from the crown but should remain entirely to the kings of England for ever’.33 Its status as an appanage for the king’s eldest son – or, when there was no earl, as a county directly administered in the king’s name – scarcely gave it the character of a state in miniature.34 In such ways, and others, ‘the threads of local liberties … were without question gathered up in Westminster’ – and, one must add, in Edinburgh.35 Nevertheless a more complicated vista confronts us once we begin to delve more deeply beneath the assumptions of the state and even its undoubted successes. A closer inspection of parts of the thirteenth-century governmental terrain may prove to be rewarding. In c.1200 there was no country like today’s Scotland; rather, Scotia still denoted in its strictest sense the kingdom’s eastmidland heartlands.36 Royal authority radiated across a much broader area; but with varying degrees of intensity, even south of the Forth. On that stage the pre-eminent figure in ‘baronial’ governance was Alan of Galloway (d.1234). He appointed his own sheriffs in the lordships of Cunningham and Lauderdale (inherited from the Morvilles);37 yet it was as the lord of his native province of Galloway that he most amply expressed and asserted his authority. He ruled it untroubled by regular royal intervention and oversight of any kind; he waged war more or less independently; and he negotiated with other powers. Gallovidian law was also distinctive and autonomous; the native community possessed a fierce sense of provincial patriotism, as it had demonstrated in the great revolt against William I in 1174 and would demonstrate again in the rebel-

31 32 33 34 35 36

37

Cf. Scammell, ‘Liberty of Durham’, 472: ‘In the last resort [Durham’s] privileges were as long as the king’s temper.’ Cf. R.B. Dobson, Church and Society in the Medieval North of England (London, 1996), 88–9. Davies, Domination and Conquest, 83. Cheshire, though remaining a distinct governmental entity, was in the king’s custody for almost half the period 1272–1509. N. Neilson, ‘The Early Pattern of the Common Law’, American Historical Review 49 (1944), 205. D. Broun, ‘Defining Scotland and the Scots before the Wars of Independence’, in D. Broun, R.J. Finlay and M. Lynch (eds.), Image and Identity: The Making and Re-making of Scotland through the Ages (Edinburgh, 1998), 4–17. K.J. Stringer, ‘Acts of Lordship: The Records of the Lords of Galloway to 1234’, in T. Brotherstone and D. Ditchburn (eds.), Freedom and Authority: Scotland c.1050–c.1650 (East Linton, 2000), 209.

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lion of 1234–5.38 For all the Scots king’s emphasis on his regia auctoritas and regalis potestas,39 a view from the outer zone of his dominions would indicate that ‘Scotland’ was – as in important senses it was to remain – a polycentric kingdom. Thirteenth-century England was much more patently ‘close-meshed’.40 By c.1200 the routines and structures of metropolitan English governance had expanded into the northern periphery, and – as the king and his officers saw it – this region was being shorn of much of its semi-detached marchland character.41 Yet that is scarcely the whole picture. Allerdale, Copeland and other liberties confined the sheriff of Cumberland’s bailiwick to the Eden valley and parts of the Carlisle plain; while the shrievalty of Westmorland was under the hereditary control of a local baronial family. In the North-East the king’s writ was not current between Tees and Tyne, and his officials were normally excluded from about half of modern Northumberland. Redesdale, for example, had not been absorbed into a shire, and by 1243 it was said to be held per regalem potestatem. The Scots king retained a major role in the English Borders as the lord of Tynedale, which lay – so it was affirmed in official English record in 1234–5 – ‘beyond the king of England’s power’; in 1279 a Newcastle jury was to imagine that ‘Tynedale [is] out of the kingdom of England, in the kingdom of Scotland’.42 On a broader front, throughout the English polity great liberty-holders needed few lessons from the Marcher lords in Wales (or the lord of Galloway) as to the claims they were entitled to make for their authority, or how they might exercise their powers. The lord enjoys ‘all things pertaining to the crown’ within his liberty; it lies ‘outside the body of the king’s county’; ‘the king’s writ does not run there’; ‘the king’s sheriffs and justices cannot intermeddle there’ – such mottoes of local autonomy and prestige became the lord’s stock-in-trade. Until 1237 Cheshire, so it was assumed, answered not to the crown but to ‘the sword of its prince’; and his word, moreover, was law.43 ‘There are’, it was declaimed in 1302, ‘two kings in England, namely, the lord king of England wearing a crown as symbol of his regality, and the lord bishop of Durham wearing a mitre in place of a crown as symbol of his regality in the diocese of Durham.’44 A scribe of Battle Abbey put the matter more succinctly: Battle, he wrote, was invested

38

39 40 41 42

43 44

K.J. Stringer, ‘Periphery and Core in Thirteenth-century Scotland: Alan son of Roland, Lord of Galloway and Constable of Scotland’, in A. Grant and K.J. Stringer (eds.), Medieval Scotland: Crown, Lordship and Community (Edinburgh, 1993), 82–113. RRS, ii, nos. 28, 30, 39, 63, etc. The term is adopted from K.J. Leyser, Medieval Germany and its Neighbours, 900–1250 (London, 1982), 266. P. Dalton, ‘The Governmental Integration of the Far North, 1066–1199’, in J.C. Appleby and P. Dalton (eds.), Government, Religion and Society in Northern England, 1000–1700 (Stroud, 1997), 14–26. The Book of Fees, ed. H.C. Maxwell Lyte (London, 1920–31), ii, 1121; Curia Regis Rolls (London, 1922–  ), xv, nos. 960, 1259; Three Early Assize Rolls for the County of Northumberland, ed. W. Page (Surtees Society, 1891), 365; TNA, JUST 1/645, m. 17d; 1/646, m. 20d. Barraclough, Earldom of Chester, 37. C.M. Fraser, A History of Antony Bek, Bishop of Durham, 1283–1311 (Oxford, 1957), 98.

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with ‘the dignity of royal authority’.45 In 1173 the bishop of Durham anticipated the practices of the bishopric in the fourteenth century by negotiating his own truce with the Scots; in 1343 the Manxmen were authorised by their lord William Montacute to purchase peace from ‘the king’s enemies in Scotland’.46 English liberty-holders in Ireland (and after 1296 the ruling elites of Border liberties like Tynedale) went to war on their own initiative – and they did so as if it was a legal right.47 The lords of Carlow, Kildare, Kilkenny, Trim, Ulster and Wexford had their county and superior courts, and issued from their chanceries not only original writs but charters of pardon and letters of protection. They saw themselves, and were seen, as holding ‘royal liberties’; in the 1290s the lord of Kildare is found exercising jurisdiction over church land and insisting that his own peace was superior to the king’s peace.48 At least by these measures, major liberty-owners in Ireland and elsewhere were indeed no less ‘lords royal’ than their fellows in the Welsh March. * Thus a focus on liberties provides a useful alternative perspective onto the nature of power and its dynamics; it is likewise fundamental when we address more systematically the question of how far it is appropriate to speak of centralised states within the medieval British archipelago. Scotland, whose rulers never sought to emulate the increasingly authoritarian and interventionist ethos of English kingship, evokes Karl Bosl’s assessment that ‘rule and realm in the medieval sense were essentially federal, and not centralizing, structures of political order’.49 Of course it is difficult not to be deeply impressed by the regularisation and extension of royal jurisdiction, which underpinned a growing sense of regnal cohesion and helped to create, as even Edward I conceded in 1290, a kingdom of Scotland and the Scots ‘distinct and free from the realm of England’, with its own ‘rightful boundaries’ and ‘laws, rights and customs’. But thirteenth-century Scottish government had a more loose-jointed character than is sometimes conceded. Monarchical rule advanced across ‘greater Scotland’ slowly and circumspectly, and often worked with the grain of other sources of authority and governance. Clashes over the organisation of central and local power were kept to a minimum. Generally speaking the supremacies of the king’s earls and major lords were shaped largely by local conditions; rarely were these notables forced to defend and define their jurisdiction in response 45 46 47 48

49

Regesta Regum Anglo-Normannorum: The Acta of William I (1066–1087), ed. D. Bates (Oxford, 1998), no. 22 (a forged Battle charter of c.1154). Gesta Regis Henrici Secundi, ed. W. Stubbs (RS, 1867), i, 64; Monumenta de Insula Manniae, ed. J.R. Oliver (Manx Society, 1860–2), ii, 192–3. Cf. H. Kaminsky, ‘The Noble Feud in the Later Middle Ages’, Past & Present 177 (2002), 55–83. G.J. Hand, English Law in Ireland, 1290–1324 (Cambridge, 1967), chap. 6; K.J. Stringer, ‘Nobility and Identity in Medieval Britain and Ireland: The de Vescy Family, c.1120–1314’, in B. Smith (ed.), Britain and Ireland 900–1300 (Cambridge, 1999), 211, 234. See further CCR 1349–54, 461: ‘royal liberties such as Durham and Chester’. K. Bosl, ‘Ruler and Ruled in the German Empire from the Tenth to the Twelfth Century’, in F.L. Cheyette (ed.), Lordship and Community in Medieval Europe (New York, 1968), 371.

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to royal interrogation and challenge, and that is why the precise nature of their powers is (to historians) so elusive. By much-governed England’s standards, the crown’s administrative role remained under-developed; and there was an obvious contrast between the Lowlands, with their greater density of royal residences, sheriffdoms and burghs, and outer regions where the stamp of royal authority was less emphatic. In consequence the most powerful earldoms and lordships maintained in practice levels of control and self-organisation that had very few parallels in England after 1154.50 Indeed one result of the enlargement of the kingdom was that the crown’s dependence on cooperation with local potentates became more pronounced. But low-key royal government eased the absorption of provinces characterised by diverse political traditions. Since the crown did not intervene relentlessly in their affairs, the regional elites had more respect for it and could usually be relied on to uphold its interests locally. The ‘limitations’ of central power strengthened rather than weakened the unity of the realm. Fourteenth-century Scotland was a more complex and contested arena; but, if anything, its experiences underscore the validity of the observation that ‘power can be increased when it is shared’.51 Extreme pressures in the form of war with England, and the Bruce-Balliol civil war, overturned earlier expansive trends; and the crown’s ability to direct affairs from the centre was often much curtailed. Accordingly noble power became more critical to royal power; and the king’s recognition of that fact was amply reflected in the main formal grants of regality rights from Robert I’s reign onwards. The first beneficiary was Thomas Randolph who by 1324 had gained Moray, Annandale and Man in liberam regalitatem. Within the next eighty years or so, most earldoms were recognised as regalities, as were about a dozen major mainland lordships; and, viewed in such terms, the effect was to acknowledge, consolidate or reinforce the traditional pattern and structures of lordly authority. We must also take note of those lesser units of seigneurial power which now come into clearer focus – the host of estates held ‘in free barony’, whose courts were akin to sheriff courts and had no doubt for long been important forces at grass-roots level.52 One assessment of Robert I’s grants of regality is that some ‘gave a fillip to the process by which the crown lost power through excessive delegation, even to the point of dissipation’.53 But a counter-argument can be developed out of the crown’s failure to achieve a sustained modus vivendi with the MacDonald 50

Cf. MacQueen, Common Law and Feudal Society, 42: ‘Royal justice was … always ready to interfere with lords’ autonomy, although this could only be made a reality where the instruments of royal authority – justices, sheriffs and others – were in place.’ 51 J.A. Hall and G.J. Ikenberry, The State (Milton Keynes, 1989), 14. 52 For an instructive analysis of Robert II’s charter of the earldom and regality of Strathearn to his son David Stewart (1371), see C.J. Neville, Native Lordship in Medieval Scotland: The Earldoms of Strathearn and Lennox, c.1140–1365 (Dublin, 2005), 115, where it is characterised as ‘a deliberate effort … to replicate there by royal fiat the kind of overweening authority … that a long line of native earls had previously enjoyed by right of custom’. More generally, Grant, ‘Franchises North of the Border’, below, 155–99. 53 G.W.S. Barrow, Robert Bruce and the Community of the Realm of Scotland, 3rd edn (Edinburgh, 1988), 283.

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lords of the Isles. Its inability to harness their ambitions and regional authority to its own interests, however understandable, resulted in the emergence of a rival power block that ‘came very close to being a unitary “state” of the Isles’.54 Lords of regality were not paragons of virtue, and regalities occasionally came under heavy royal criticism for failure to uphold good order. Yet in a kingdom like Scotland there was no alternative to magnate governance if the king was to retain the allegiance of large tracts of the realm; and ‘when stress is placed on the development of royalist ideology in late medieval Scotland … it is important to recognise that other structures of loyalty … and other claims to leadership in defence of the kingdom existed whose appeals were … just as potent as those of the crown’.55 Turn to the English polity and we encounter a very different range of royal powers and pretensions, especially in precocious England itself. A glance at the early development of its ecclesiastical liberties is revealing. With the obvious exception of Durham, few had – or were intended to have – major governmental roles. Essentially the crown was ‘negotiating space’ with religious communities on terms that exempted them from local interference under its protection and supervision; and ‘immunity’ was not synonymous with ‘autonomy’.56 In twelfthcentury England Stephen’s reign saw the only major shift prioritising regional power; and under Henry II crown authority vigorously reasserted itself. Thereafter the centre continued to make the running (save most notably in 1215–17); and compared to Scotland, in England liberties undoubtedly lived more fully within the state. The Angevin power jump allowed for unprecedented interaction between central and local authority; and by c.1200 the writ non omittas asserted the king’s right to intervene wherever government and justice needed to be afforced. This meant that even the greatest liberties had to fortify their rights and procedures if they were to remain areas of administrative and legal privilege. So it was that in due course fully-fledged ‘royal liberties’ or ‘palatinates’ – notably Cheshire, Durham and Tynedale – emerged on the scene; but they naturally had to have royal sanction. Above all, account had to be taken of more aggressive and exalted notions of the king’s authority and supremacy from which few liberty-owners – including those in Ireland and Wales – remained exempt; and at no point did the royal attitude towards liberties harden more dramatically and completely than during Edward I’s reign. There is no need to dwell in detail on the grandiloquent claims of the king and his lawyers, or on their practical applications in the

54

A. Grant, ‘Scotland’s “Celtic Fringe” in the Late Middle Ages: The MacDonald Lords of the Isles and the Kingdom of Scotland’, in R.R. Davies (ed.), The British Isles, 1100–1500 (Edinburgh, 1988), 134. 55 Brown, ‘House of Douglas’, 184. 56 For example, in a fabricated Battle Abbey charter (c.1170) the monks explained their liberty in terms of William I’s grant of freedom from domination by his bishops and barons: Reg. Regum AngloNormann., no. 19. More broadly, B.H. Rosenwein, Negotiating Space: Power, Restraint, and Privileges of Immunity in Early Medieval Europe (Manchester, 1999); K.L. Shirley, The Secular ­Jurisdiction of Monasteries in Anglo-Norman and Angevin England (Woodbridge, 2004), esp. chap. 3.

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Quo Warranto inquiries in England, in the shiring of Kildare and Meath, and in the challenges faced by the Welsh Marcher lords especially in the 1290s. From the liberty-holders’ perspective, Edward I’s view was encapsulated only too trenchantly in the retort to the lord of Pembroke that ‘since all lands in the kingdom were held of the king in chief, the king was entitled to send justices to hear pleas wherever he wished’; or in his admonishing Bishop Bek of Durham that ‘[you are] the king’s minister for … carrying out in the king’s name and in due manner what belongs to royal authority in the liberty … for royal authority extends through the whole realm, both within liberties and without’.57 It was a discourse of governance that subordinated all institutions and power relations to the dominus rex as sole keeper of the regalia: sovereignty, in brief, could not be shared. Yet the contrasts between the Scottish and English polities must not be too sharply drawn. Such sermons as those just quoted represented an idea and an ideal; and in effect their relevance has more to do with how state authority might be conceptualised than with the state’s capacity to enforce its will as ‘a free-floating superstructure of power’.58 For England itself, it can be accepted that ‘the “great age of baronial jurisdiction” in the twelfth century may be as insubstantial as many other golden ages in the unrecorded past’.59 But it is one thing to query the antiquity of England’s greater liberties relative to the legalconstitutional norms of the thirteenth century;60 quite another to infer that, at any rate north of the Trent, the frameworks from which they emerged had lacked de facto the power to regulate the everyday processes of local government. As for England’s ‘shire system’, from 1200 onwards none of the king’s counties is a uniform administrative unit under the sheriff ’s direct control: each dissolves on examination into a jumble of jurisdictions.61 Questions have also to be asked about the emphasis often placed on the role of the thirteenth-century English state in shaping the rights of liberty-holders.62 Crucial though the crown’s initiative and assertiveness undoubtedly were, the renegotiation of central and local power – or, to borrow a telling phrase, the transformation from ‘federation into regnum’ – involved give and take on both sides.63 We may likewise query 57 58 59 60 61 62

63

Davies, Lordship and Society, 259; Records of Antony Bek, Bishop and Patriarch, 1283–1311, ed. C.M. Fraser (Surtees Society, 1953), 92–3. Davies, ‘Medieval State’, 296. Susan Reynolds was responding to S.F.C. Milsom’s maximalist interpretation: S. Reynolds, Fiefs and Vassals (Oxford, 1994), 379. H.M. Cam, Law-Finders and Law-Makers in Medieval England (London, 1962), 22–43. See, for example, B. English, ‘The Government of Thirteenth-century Yorkshire’, in Appleby and Dalton, Government, Religion and Society, 90–103. Typical of this emphasis is E. Searle, Lordship and Community: Battle Abbey and its Banlieu, 1066–1538 (Toronto, 1974), 222: ‘for the franchise to be … maintained, it had constantly to be reinterpreted, and reinterpretation depended upon the king’. More widely, Harding, Medieval Law, 143: ‘The state of the kingdom was being defined in relationship to an increasingly dominant royal state.’ Cf. J.V. Capua, ‘Feudal and Royal Justice in Thirteenth-century England: The Forms and the Impact of Royal Review’, American Journal of Legal History 27 (1983), 55–6: ‘The political, social, and constitutional realities of thirteenth-century England still required that the Crown exercise its judicial

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the aptness of labelling Chester, Durham and Pembroke as ‘puny local quasiautonomies’, and of concluding that, so far as Edward I and Edward III were concerned, ‘the reality of power they shared not’.64 Formulations of this sort reflect the crown-centred agenda of most legal historians of medieval England, whose focus on the rise of the ‘law state’ leads readily to the assumption that Edwardian government was a unicameral structure of power.65 Far less is known (or can be known) about liberty courts than about the expansion of central court justice; but some work has already indicated that the advance of royal jurisdiction did not necessarily entail a serious decline of liberty jurisdictions. Durham’s ability to build up its remedies and procedures in line with the crown’s hardly suggests that its courts became moribund, and there is positive evidence of their power in society.66 Marcher judicial autonomy remained largely unaffected by Westminster’s jurisdiction: ‘there can be no doubt’, Beverley Smith confirms, ‘that, so far as the common law was concerned, there was a linear frontier along the Anglo-Welsh borderland’.67 Even more noteworthy is the degree of local self-regulation upheld in suburban Essex by the run-of-the-mill hundredal liberty of Havering.68 To extrapolate from such cases to the experiences of other liberties would be risky; and no doubt it will never be possible to generalise with much confidence.69 Yet the fact remains that for all its uniformist dogma the English crown lacked the resources to assert a governmental monopoly in England, let alone in Wales or Ireland; nor could it easily afford to trample on the interests of local power brokers. Even Edward I ‘could not cancel the past’; or, rather, he ‘was a master who was content with the acknowledgement of his mastery’.70 In any event no other medieval English monarch called liberty-holders to account so forcefully; and it was not until the 1530s that the crown embarked on a major programme of eliminating liberties in its dominions.71 Small franchises

64 65

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67 68 69 70 71

primacy within carefully circumscribed bounds.’ The quotation in the text is from E. Miller, The Abbey and Bishopric of Ely (Cambridge, 1951), 245. Alexander, ‘English Palatinates’, 22. See, for instance, the important review of A. Musson and W.M. Ormrod, The Evolution of English Justice: Law, Politics and Society in the Fourteenth Century (Basingstoke, 1999), by C. Donahue, Jr., in Michigan Law Review 98 (2000), 1725–37. Compare Scammell, ‘Liberty of Durham’, 461–4 (a sceptical critique), with K. Emsley and C.M. Fraser, The Courts of the County Palatine of Durham from Earliest Times to 1971 (Durham, 1984), 25–30; and see further C.J. Neville, ‘The Courts of the Prior and the Bishop of Durham in the Later Middle Ages’, History 85 (2000), 216–29; T. Thornton, ‘Fifteenth-century Durham and the Problem of Provincial Liberties in England and the Wider Territories of the English Crown’, TRHS, 6th ser., 11 (2001), 86–9. J.B. Smith, ‘The Legal Position of Wales in the Middle Ages’, in A. Harding (ed.), Law-Making and Law-Makers in British History (London, 1980), 21–53 (at 38). M.K. McIntosh, Autonomy and Community: The Royal Manor of Havering, 1200–1500 (Cambridge, 1986), esp. Appendix II. But for some further evidence and interpretation, see below, 29–31. Select Pleas in Manorial and Other Seignorial Courts, ed. F.W. Maitland (Selden Society, 1888), xxi; Davies, Lordship and Society, 267. S.G. Ellis, ‘The Destruction of the Liberties: Some Further Evidence’, Bulletin of the Institute of Historical Research 54 (1981), 150–61.

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in Yorkshire, the Midlands and southern England may have operated largely on the crown’s forbearance; but (as in the case of other liberties) their distinctive institutional status and powers might often be respected and utilised for purposes of raising taxation and arraying troops.72 Nor is it helpful to describe their owners as merely ‘viceroy[s] or agent[s] of the king’ – or their officials as ‘the king’s ministers and bailiffs and … part of the national system of administration’.73 Famously Helen Cam likewise characterised Bury St Edmunds, Ely, Peter­borough, Ramsey and Thorney as ‘cogs’ in the machinery of royal government. Yet this was not how matters were viewed from Bury: its monk-historians acclaimed Abbot John’s defence of its franchises in Edward I’s reign, and portrayed him as a spokesman for all liberty-holders against the Westminster administration; in 1326 Abbot Richard jealously asserted his right to exclude the king’s sheriff and justices.74 Nor was such an opinion necessarily cultivated by anyone except over-zealous crown lawyers.75 Indeed, though Edward I might call Bishop Bek ‘his minister’, in another context he instructed his officers not to violate Durham’s usages and privileges and depicted himself as ‘St Cuthbert’s minister’.76 We may still accept that ‘in official circles the concept of kingship was one where the king ruled, rather than co-operated with, his magnates’.77 But as always and inescapably: ‘At the level of local power, royal and aristocratic interests were … inter-related in a complex and evolving relationship [and] the system as a whole required symbiosis between king and aristocracy. Political power was not one-dimensional.’78 Yet in the fourteenth century nowhere were the limits to the king’s authority more amply displayed than in the English Borders and in English Ireland, both of which were sharply differentiated from the rest of the polity (including the March of Wales) by their war-zone status. On one view there was a major expansion of the crown’s role in Border society; but, on another, the process was 72 73

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See also below, 31. These constructions, which could have come from Bracton, are Helen Cam’s: Liberties and Communities in Medieval England, new edn (London, 1963), 184; and ‘Shire Officials: Coroners, Constables, and Bailiffs’, in J.F. Willard et al. (eds.), The English Government at Work, 1327–1336 (Cambridge, Mass., 1940–50), iii, 149. Cam, Liberties and Communities, 183–204; A. Gransden, ‘John de Northwold, Abbot of Bury St. Edmunds (1279–1301), and his Defence of its Liberties’, TCE 3 (1991), 91–112; TNA, SC 8/234/11695. Cf. F.R.H. Du Boulay, The Lordship of Canterbury (London, 1966), 287: ‘the archbishop had to struggle at times, not so much for privileges from a king who was probably a political friend … as for interpretations of privilege that the king’s acute ministers sought to narrow in his interest’. C.M. Fraser, ‘Edward I of England and the Regalian Franchise of Durham’, Speculum 31 (1956), 338. Alexander, ‘English Palatinates’, 17, quoting Michael Prestwich (the emphasis is mine). M. Innes, State and Society in the Early Middle Ages: The Middle Rhine Valley, 400–1000 (Cambridge, 2000), 259. Or, in Ely’s case, ‘the liberty [is] a striking illustration of the permanent contribution made to medieval English government by … the essential co-operation between king and aristocracy … It was [this] which made it thinkable that a franchise could … embody into its working in the thirteenth century the new law, the royal law, and the institutions that law engendered. This fact, in turn, reacted upon … how the bishop ordered his affairs … whether … in the interest of bishop or king or in that common interest where no dividing line can be drawn’ (Miller, Abbey and Bishopric of Ely, 246).

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uneven, tentative and often scaled back. In Ireland also ‘the state … was more than an empty shell’; but its trajectory was such that centralising trends went more or less into reverse, in much the same way as there was a retreat of Scottish kingship from the localities.79 Official and other eyes might see liberties like Durham, Tynedale, Kerry and Tipperary as lawless havens and pernicious threats to the king’s peace and ‘civil society’. The prescription for good governance, at least according to the crown’s ministers in Dublin, was their suppression: in 1346, so they declared, ‘only when franchises … are abolished is the king lord of his own; otherwise not at all’.80 Such rhetoric both informs and misleads. It discloses a universe in which liberties drew the power map of about half of English-dominated Ireland; likewise petitions against liberties by the ‘commons’ of the Border counties took the county-liberty jurisdictional divide as a given.81 But it remains far from clear that in these militarised societies public order was better upheld in royal counties, still more that a comprehensive dose of ‘topdown’ government was practicable or relevant in the prevailing conditions.82 The degree of royal regulation the English king’s dominions experienced by 1400 was thus less substantial than Westminster orthodoxies might suggest. And overall the strength of the monarchy rested on its ability to look beyond those orthodoxies, and to accept – however reluctantly – that the doctrine of plena potestas did not provide a form of rule that was appropriate at every level to the realities of politics, power and governance.83 In summary we might mention Edward I’s grants of four new privileged lordships in north-east Wales (1279–82); the creation of the earldoms and liberties of Kildare, Louth, Ormond and Desmond (1317–29); and the erection of the county of Lancaster into a palatinate for Henry Grosmont (1351). All – one could include the award of county status to Bristol (1373) and York (1396) – were responses to the need to cement political support nationally and/or to ensure stability locally; as such, they underscore that liberties remained an integral part of the fabric of relations between state and society.84 Yet it was ­Richard II who paid the most fulsome tribute to the role of liberties in the English polity 79

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R. Frame, ‘Exporting State and Nation: Being English in Medieval Ireland’, in L. Scales and O. Zimmer (eds.), Power and the Nation in European History (Cambridge, 2005), 143–65 (quotation at 145), takes a more positive view than in his earlier work; but for ‘necessary reservations’, cf. Frame, English Lordship, 75: ‘the history of the lordship [cannot] be presented in the shape which historians have traditionally found acceptable, that of the growth of central authority at the expense of local power; in the fourteenth century the trend was probably in the opposite direction’. Quoted in ibid., 119. Cf. A Roll of the Proceedings of the King’s Council in Ireland, 1392–93, ed. J. Graves (RS, 1877), 266: ‘many … counties are liberties of an earl palatine, which is a prejudice and destruction to the crown’. Cf. Neville, ‘Courts’, 216–19. J.F. Lydon, ‘The Years of Crisis, 1254–1315’, in A. Cosgrove (ed.), A New History of Ireland, ii: Medieval Ireland, 1169–1534 (Oxford, 1987), 193, refers to the ‘ramshackle structure of the Irish shires … until the early modern period’. S.G. Ellis, ‘Civilizing Northumberland: Representations of Englishness in the Tudor State’, Journal of Historical Sociology 12 (1999), 103–27, questions the dividends of Tudor centralisation in the far North. On Bristol and York, see C.D. Liddy, War, Politics and Finance in Late Medieval English Towns: Bristol, York and the Crown, 1350–1400 (Woodbridge, 2005).

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when in 1397 he elevated the county palatine of Chester to the dignity of a principality and proceeded to make it the ‘inner citadel’ of his realm.85 Gerald Harriss, in a review of the nature of late medieval English governance, restricted his comments to England and did not consider liberties. But, though written from a different standpoint, his verdict is decidedly pertinent: To attribute the development of late medieval government solely to royal policy, and to measure it by the growth of central institutions or the enlargement of royal power, is to mistake its nature and miss its essential dynamic. This, I believe, is to be found in the development of the society which government had to serve. Government was moulded more by pressures from within political society than by the efforts of kings or officials to direct it from above. It was these pressures which shaped the institutions of government, the conventions of governing, and the capacity of kings to govern effectively.86

* I turn to liberties as units of socio-political organisation; but ‘liberty communities’ have yet to find a well-recognised place in our historiography. So where to begin? The documentation embraces terms such as patria and, more especially, communitas. Yet, notoriously, collective associations and identities are concepts or constructs that remain as amorphous and treacherous as their ordering was multi-faceted and multi-nucleated. The ongoing debate about the importance of the county as a focus for society and communal activity in medieval England provides in itself a salutary lesson about the dangers of categorisation or generalisation.87 That debate has also supplied a set of analytical tools; but since they have yet to be applied methodically to the relationship between privileged jurisdictions and loyalties, what follows is bound to be highly provisional.88 One unifying theme is that most liberties (unlike counties/sheriffdoms) were distinctive units of local lordship. Their impact on society cannot therefore be divorced from the content of that lordship. But this, too, raises problems. Even in the period c.1200–1400 (on which we now concentrate) lordship might turn less on institutional rights or structures than on other sources of influence and control – not to say the ‘military power [that] was the original foundation and ultimate sanction of all lordship’.89 In similar fashion a wide range of variables affected patterns of authority and solidarity: to name but a few, the degree 85

86 87

88 89

R.R. Davies, ‘Richard II and the Principality of Chester, 1397–9’, in F.R.H. Du Boulay and C.M. Barron (eds.), The Reign of Richard II (London, 1971), 256–79; now to be read alongside T. Thornton, ‘Cheshire: The Inner Citadel of Richard II’s Kingdom?’, in G. Dodd (ed.), The Reign of Richard II (Stroud, 2000), 85–96. G. Harriss, ‘Political Society and the Growth of Government in Late Medieval England’, Past & Present 138 (1993), 33. For recent critiques, see D. Crouch, ‘From Stenton to McFarlane: Models of Societies of the Twelfth and Thirteenth Centuries’, TRHS, 6th ser., 5 (1995), 187–93; A. Gross, ‘Regionalism and Revision’, in P. Fleming, A. Gross and J.R. Lander (eds.), Regionalism and Revision: The Crown and its Provinces in England, 1200–1650 (London, 1998), 1–13. For the early Tudor period at least, the issue has been profitably explored in Thornton, Cheshire. Davies, Lordship and Society, 67.

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of self-rule, the extent of overlapping lateral (and hierarchical) attachments, geopolitical considerations, socio-economic shifts, cultural geography, and the interaction of local and national politics. Only some of these variables can be addressed in any detail here. But it is already clear that liberty status was one element among others, and perhaps not the most important one. First we may note some generic contrasts between secular liberties and ecclesiastical liberties. The effectiveness of the former as frameworks of socio-political power was naturally moderated by the same kind of dynastic accidents that affected lay lordships in general. In particular, partition among sisters or daughters was such a frequent occurrence that only an indicative list can be given: Cunningham, Lauderdale and Galloway (1234–5), Garioch (1237), Meath (1241), Leinster and Pembroke (1247), Kilkenny (1314), Wexford (1324). Accordingly spheres of lordly domination contracted, and governmental vitality and social cohesion were undermined.90 Moreover, heiresses might marry husbands whose preoccupations as landowners lay elsewhere, with the result that active personal lordship was replaced by lordly absenteeism. The capacity of lords to exercise authority from a distance should not be underestimated. Even so Irish liberties like Carlow, Trim and Ulster did not have resident lords for most of the fourteenth century; in contemporary Wales, the vast majority of the Marcher lords were absentees. Conversely ecclesiastical liberties did not fragment; their lords were more likely to be a visible presence. They also had an exceptionally well-stocked arsenal to draw on in order to protect and project their power. They might secure papal confirmations of their rights (including secular rights); excommunicate those who infringed their franchises; and reinforce their independence and authority by means of a welter of spiritual exemptions and prerogatives, including rights of diocesan jurisdiction.91 They also had the resources and technology to outmanoeuvre the crown by ‘rearranging the past in order to suit the needs of the present’.92 Thus, to cite merely one instance from St Albans, at the 1287 Hertfordshire eyre the abbot defended his franchise by producing

90

Partition could nevertheless leave magnates in charge of large territories which became liberties in their own rights – as happened on Leinster’s division into Carlow, Kildare, Kilkenny and Wexford. Efforts might also be made to maintain the judicial unity of a liberty after fragmentation; for instances concerning Pembroke and Kilkenny, see ibid., 98–9; The Red Book of Ormond, ed. N.B. White (Dublin, 1932), no. 83. 91 In c.1380 Lindores Abbey claimed lands and rights in Garioch in libera regalitate, confirmata et privilegiata per sedem apostolicam: Chartulary of the Abbey of Lindores, ed. J. Dowden (Scottish History Society, 1903), no. 149. In 1250 the bishop of Worcester and the pope excommunicated the sheriff for encroaching on the liberty of Oswaldslow: Annales Monastici, ed. H.R. Luard (RS, 1864–9), iv, 439–40. Highly privileged St Albans literally stamped the papal seal on itself by fixing an impression of it to the top of its church tower: J.E. Sayers, ‘Papal Privileges for St Albans Abbey and its Dependencies’, in D.A. Bullough and R.L. Storey (eds.), The Study of Medieval Records (Oxford, 1971), 57–84. These examples must do duty for many. 92 D. Bates, ‘The Forged Charters of William the Conqueror and Bishop William of St Calais’, in D. Rollason, M. Harvey and M. Prestwich (eds.), Anglo-Norman Durham, 1093–1193 (Woodbridge, 1994), 123.

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inflated (or spurious) charters of Offa of Mercia and Ethelred the Unready.93 Liberty privileges were also one of the hallmarks of a royal Eigenkloster, and the houses concerned continued to cash in on their special relationship with the monarchy. The men of Bury were told to answer the abbot’s summons and not to sue outside St Edmund’s court; less prosaically, Battle Abbey was to be defended ‘as the king would his own private chapel and royal crown’.94 When that Arthurian enthusiast Edward III visited Glastonbury in 1331, its jurisdiction was challenged by the marshalsea court: the abbot promptly showed the abbey’s charters to the king, and he ‘decreed that the immunity of the church was in accordance with the force, form and effect of those charters, and … increased its immunity’.95 Many ecclesiastical liberties were also focused on major shrine churches, and the protective power of their saints could be, and often was, persuasively deployed. Bury provides a revealing repertory of examples. In 1150, when the abbot successfully claimed jurisdiction in a case of treason, he launched his campaign in the Norfolk-Suffolk county court by declaring: ‘I pray for love of St Edmund that you abstain from giving judgement … until I have spoken to the king, for I hope by the strength of God and the Holy Ghost that he will not deprive St Edmund of anything.’ In 1290, so it was said, the abbot resisted Edward I’s assault on the liberty by announcing in Parliament that he committed ‘the case between the martyred Edmund and his church, and you, my lord king, to the Supreme Judge’. When Edward visited the abbey in 1300 – by now its saint had been mobilised by the king for his Scottish war – he reportedly admonished one of his justices ‘not to harm the written privileges of St Edmund, for I have no doubt that he will be in Scotland … brandishing his weapons, ready for battle – much readier than you’.96 All this amounts to saying that in ecclesiastical liberties lordship and government had a greater continuity and stability, as well as stronger legitimising and supportive cultural bases; and that such liberties thereby had a greater capacity than secular ones to act as focal points of obedience, loyalty and devotion. On the other hand, though, this verdict needs a measure of qualification. Durable dynasties like those of the earls of Dunbar, Lennox and Strathearn developed sustained traditions of good lordship, and could harness the ‘power of the past’ to foster a sense of collective history, memory and destiny.97 All liberties offered scope for constructing a specific culture and consciousness around their legal 93 94 95 96 97

J. Crick, ‘Liberty and Fraternity: Creating and Defending the Liberty of St Albans’, in A. Musson (ed.), Expectations of the Law in the Middle Ages (Woodbridge, 2001), 91–103 (at 95). Shirley, Secular Jurisdiction, 77; English Lawsuits from William I to Richard I, ed. R.C. van Caenegem (Selden Society, 1990–1), i, no. 320. The Great Chartulary of Glastonbury, ed. A. Watkin (Somerset Record Society, 1947–56), i, no. 313. English Lawsuits, i, no. 331; Gransden, ‘John de Northwold’, 91, 111. A.J. Macdonald, ‘Kings of the Wild Frontier? The Earls of Dunbar or March, c.1070–1435’, in S. Boardman and A. Ross (eds.), The Exercise of Power in Medieval Scotland, c.1200–1500 (Dublin, 2003), 139–58; Neville, Native Lordship, chaps. 1, 2. Cf. Y. Hen and M. Innes (eds.), The Uses of the Past in the Early Middle Ages (Cambridge, 2000).

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and administrative privileges. The owners of ‘royal liberties’, lay and ecclesiastical alike, naturally used the rituals, idioms and symbols of a semi-regal political ideology: writs ran in their own names and not in the king’s name; they were issued out of their own chanceries and perhaps under special liberty seals. Indeed the ‘sword of Chester’ – and Chester’s own register of writs – may have had much the same resonance as St Edmund’s cult.98 Any liberty-holder could deploy the powerful tools of ‘heraldry, pageantry and social display’, including distinctive badges for his officers;99 and in such ways he might hope to encourage identification with both his personal authority and the liberty itself. But lordship did not preside over closed social worlds; and all liberties had their broader settings and reference points, as three examples may serve to indicate. The inhabitants of the archbishop of York’s liberty of Beverley prized its exemptions from external authority; their officers were often recruited locally; and communal cohesion was reinforced by the focal role St John of Beverley played in local religious life and social regulation. But Beverley was a major sanctuary, attracting fugitives from most corners of England. Sanctuary men fought for Edward I in Scotland in 1303; they entered Edward Balliol’s service in 1342. Above all, it was the magnetic power of St John’s cult that set Beverley firmly within a network of larger interactions. In the twelfth century his shrine already drew pilgrims from as far afield as Scotland and Ireland. St John’s banner, carried into battle whenever the men of Yorkshire went to war, was a potent emblem of regional loyalty; and Edward I went on to appropriate the cult to promote the well-being of the monarchy and kingdom. All three Edwards took the banner on their military campaigns; while Henry V put Beverley firmly on the map when he ‘nationalised’ St John by adopting him as one of England’s patron saints.100 Wider associations of this sort were not necessarily incompatible with a strong sense of local pride and identity; they may indeed have strengthened it. But Beverley’s loyalties and attachments were not fashioned merely by liberty and lordship. The next example is the regality of Sprouston in Roxburghshire. By c.1280 it had all the panoply of a ‘royal liberty’, including the right to appoint a justiciar, chamberlain and chancellor. The lord reserved to himself ‘the pleas and escheats of the crown’; the regality court met three times a year; and some of the lord’s men were active in local affairs. But from other standpoints Sprouston was no inward-looking society. The main lay tenants included the Lindsays, Stewarts and other leaders of the Scottish nobility; much property was engrossed by the abbeys of Kelso and Melrose; and by 1371 Kelso had full regality rights over its 98

Cf. D. Crouch, ‘The Administration of the Norman Earldom’, in A.T. Thacker (ed.), The Earldom of Chester and its Charters (Chester, 1991), 71–3; Thornton, Cheshire, 43–4. 99 The significance of such was not lost on a royal bailiff who, it was reported in 1280, broke the wand of office of the archbishop of Canterbury’s bailiff when he tried to enforce his lord’s jurisdiction in Southwark: Du Boulay, Lordship of Canterbury, 304. More broadly, P. Coss and M. Keen (eds.), Heraldry, Pageantry and Social Display in Medieval England (Woodbridge, 2002). 100 Victoria County History, Yorkshire: East Riding, vi (London, 1989), 3–15; S.E. Wilson, The Life and After-Life of St John of Beverley (Aldershot, 2006).

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grange in Redden.101 The third case is Arbroath Abbey, whose regality powers were fragmented, exercised as they were over a widely scattered assemblage of lands and burgh properties stretching from Peeblesshire to Banffshire. There were some localised clusters where the abbot’s lordship held sway in a more or less concentrated fashion; but in essence Arbroath and its tenants were firmly integrated into the fabric of Scottish regional society.102 These illustrations raise questions about their typicality; and that perhaps applies most of all to Sprouston, whose small size put it in a different category from many other frontier liberties. The large lordships that dominated the outer fringes were more serviceable tools of lordly power and, as such, potentially more promising environments in which to nurture senses of loyalty and cohesion. Nothing less than that seems to have been realised at the knightly level in Brecon and other liberties in the Middle March of Wales; Annandale under the Bruses and Garioch under Earl David provide obvious Scottish parallels.103 But other examples tell rather different stories. By c.1220 the boundaries of Irish liberties might be pierced by cross-cutting, and sometimes conflicting, tenurial ties; and lords like the Lacies and Marshals – especially when they rebelled against the king – could not automatically rely on their English tenantries.104 For later periods, the limits to John of Gaunt’s authority over political society in the palatinate of Lancaster come readily to mind, as do the wider connections of the gentry of both Lancashire and Cheshire, who – in the absence of regular noble lordship to channel allegiances – were often drawn through royal service and reward into the mainstream of national life.105 In such cases many indeed were the factors that might work against a close correspondence of liberty, lordship and loyalty. Some power blocks were too unwieldy in size and topography to sustain liberty-based as well as locally specific identities; some were less complete than others due to pockets of crown land and government; some shaded into fluid and disputed march zones, and the consequent lack of conjunction of jurisdiction, region and people was even more pronounced. The last point applies with particular force to Ireland, where liberties (like counties) inhabited worlds of multiple frontiers and segmented societies. It may also serve to raise issues about the relationship between liberty, law and society. 101 102 103

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Stringer, ‘Nobility and Identity’, 205, 221; Origines Parochiales Scotiae (Bannatyne Club, 1851–5), i, 407–9, 413–26, 436–9. K.J. Stringer, ‘Arbroath Abbey in Context, 1178–1320’, in G.W.S. Barrow (ed.), The Declaration of Arbroath: History, Significance, Setting (Edinburgh, 2003), esp. 125–9. B.W. Holden, ‘The Making of the Middle March of Wales, 1066–1250’, Welsh History Review 20 (2000–1), 207–26; R.M. Blakely, The Brus Family in England and Scotland, 1100–1295 (Woodbridge, 2005), chap. 7; K.J. Stringer, Earl David of Huntingdon, 1152–1219 (Edinburgh, 1985), chap. 5. See notably B. Smith, ‘Tenure and Locality in North Leinster in the Early Thirteenth Century’, in T.B. Barry, R. Frame and K. Simms (eds.), Colony and Frontier in Medieval Ireland (London, 1995), 29–40. S. Walker, ‘Lordship and Lawlessness in the Palatinate of Lancaster, 1370–1400’, Journal of British Studies 28 (1989), 325–48; M.J. Bennett, Community, Class and Careerism: Cheshire and Lancashire Society in the Age of Sir Gawain and the Green Knight (Cambridge, 1983).

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Medieval communities, so we now appreciate, defined and proclaimed their identities and political loyalties by their laws and customs. But liberties in England were in general subject to English common law and statute law; in Ireland English families were presumed to be within their ambit; and in the Welsh March the self-sufficient lex Marchie was deeply influenced by metropolitan English usages. On such a view, the laws by which lords governed tended to underline a sense of membership of the wider English community. For English settlers in Wales, ‘the privilege of using English law was part of their identity and ethnic birthright’; even more was that true of their counterparts in Ireland, where – from Ulster to Kerry – it ‘corralled the newcomers together … as “English” ’.106 Again, by the mid-thirteenth century Scotland had a unitary royal law superior to regional laws; and Scots law – an amalgam of English and Gaelic usages – was one of the quintessential markers of Scottish regnal solidarity and loyalty.107 Laws, and the convictions underlying them, also introduce us to contrasting styles of lordship and governance. On the one hand, in the Scots kingdom two cultures coexisted and intermingled, and the English ultimately became Scots in a way they did not become Irish or Welsh. Thus there was no legal and administrative segregation into ‘Scottishries’ and ‘Englishries’; men did not become habituated to ethic division and confrontation; and opportunities existed for social interaction of the sort that were often unobtainable – even unthinkable – in other parts of the British Isles. They laid the basis of personal supremacies such as those of the Comyns and, later, that of Alexander Stewart of Badenoch. Even more notable was the hegemony of the Black Douglases, which rested on their mastery of Galloway, Liddesdale, Lauderdale and Selkirk Forest; and, in particular, on their ability to recruit powerful military-political affinities from each lordship or regality. In Galloway, for example, they brought under their protection the McCullochs, MacDowells and other native kindreds, and generally acted as ‘provincial rulers in a centuries-long tradition’.108 At the other extreme, the law – English law – might well serve as an instrument of discrimination and exclusion. The native peoples of Wales and Ireland were formally denied its benefits within liberties as throughout the areas of English control. Of course this ‘institutionalized ethnic duality’109 was not so evident on the ground. The Statutes of Kilkenny (1366), directed at Ireland’s English colony, supply a classic statement of official Westminster-influenced ideology; they also reveal – in their condemnation of the use of march or native Irish law and other manifestations of ‘degeneracy’ – the contradictions between 106

R.R. Davies, ‘The Peoples of Britain and Ireland, 1100–1400: III. Laws and Customs’, TRHS, 6th ser., 6 (1996), 5; Frame, ‘Exporting State and Nation’, 149. 107 H.L. MacQueen, ‘Regiam Majestatem, Scots Law and National Identity’, SHR 74 (1995), 1–25. 108 Brown, ‘House of Douglas’, 176; cf. M. Brown, The Black Douglases: War and Lordship in Late Medieval Scotland, 1300–1455 (East Linton, 1998), esp. 166–73. On Stewart, see S. Boardman, ‘Lordship in the North-East: The Badenoch Stewarts, I. Alexander Stewart, Earl of Buchan, Lord of Badenoch’, Northern Scotland 16 (1996), 1–29. 109 R.R. Davies, The Revolt of Owain Glyn Dŵr (Oxford, 1995), 69.

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that ideology and actualities. In Wales, moreover, there was in practice considerable assimilation of Welsh people and customs under the liberty-holder’s jurisdiction. Even so it does not surprise that in 1396 Welshmen in Dyffryn Clwyd could be indicted for arrogating to themselves English freedoms ‘to the no small prejudice of the lord’.110 And in Ireland, unlike in fourteenth-century Wales, constant warfare against and within the liberties drew sharper lines of cleavage between settler and native. On this view of the world beyond England’s borders, only as regards Scotland does it really seem possible that liberty (viz. ‘regality’), lordship and ‘community’ were mutually reinforcing. All these comments serve to demonstrate, however superficially, that liberties and their societies existed in particular settings – be they of lordship, regional and national interaction, or socio-cultural relations; that the opportunities for straightforward comparative analysis across time and space are restricted; and, not least, that within liberties as outside them loyalties and senses of community were often multiple, always complex, and sometimes contradictory. And yet this is far from saying that, taken in the round, liberties were marginal forces in people’s lives; or that we ought to conclude that only English shires or Scottish sheriffdoms were significant focal points for local society and identities. Quite on the contrary: ‘government consisted of layers of authority, and loyalties were attracted to each layer accordingly’.111 Every allowance made, therefore, the liberty-holder and the ‘liberty community’ (however narrow or wide that happened to be) must have the final word. * While the liberty-holder’s prerogatives and powers varied from case to case, he was more than simply one lord among many. The framework of his lordship was less loose joined than was the case elsewhere. It had a unitary quality that the multiple hierarchies of ordinary shires (or sheriffdoms) manifestly lacked; it might well entail – in contrast to the tangled pattern of lords’ estates in much of England and parts of Scotland and Ireland – a territorial ascendancy that brought under single lordship most of the people of an entire region or sub-region. Loyalties fragmented less easily; they were moulded not merely by ties of tenure or clientship, but by lateral bonds of neighbourhood, kinship and association. In the king’s shires few magnate families could hope to impose their dominance so effectively; and, what is more, a liberty’s inhabitants were subject to lordly governance in ways the men of less privileged lords were not. Lordship was institutionalised into society so that in essentials it might parallel the crown’s lordship in a standard shire; indeed a great liberty-owner lorded it over his own shire or (as in Leinster and Ulster) over several shires. External authority had limited scope for sustained intervention at the expense of such a 110

Ibid., 70. See also A.D.M. Barrell and M. Brown, ‘A Settler Community in Post-Conquest Rural Wales: The English of Dyffryn Clwyd, 1294–1399’, Welsh History Review 17 (1994–5), 332–55. 111 S. Reynolds, Kingdoms and Communities in Western Europe, 900–1300, 2nd edn (Oxford, 1997), 331.

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lord’s monopolies and power. He chose officers – sheriffs, escheators, justices, serjeants, foresters, etc. – who elsewhere would have been crown appointees; his administration might include a chancery, an exchequer and a mint, and thereby replicate more fully the machinery through which the state could assert itself. His jura regalia also allowed him to exercise authority and patronage in the form of grants of trading privileges, forest rights, forfeitures, pardons, and so on. This was, or had the makings of, a self-contained government system; it likewise ranged beyond the normal obligations and benefits of service and lordship. Thus liberties, or the greater ones, might have a tighter organisational unity than that of neighbouring shires, ordinary lordships, and many magnate affinities.112 The hubs of liberties were their courts. The appropriate comparator for these nerve centres is not the frail and increasingly ineffectual baronial honour court; nor does it necessarily lie in England’s shire courts, from which the king’s courts gradually ‘appropriated almost every jurisdiction of significance’.113 The Cheshire county court routinely sat as a full royal court; the head courts of other ‘royal liberties’ in Britain like Durham, Glamorgan, Pembroke, Tynedale and Wigtown also had cognisance of ‘all manner of pleas’; and those of Irish liberties, though less autonomous, exercised important jurisdiction above that of the shire. It was in such courts that the lord’s will was proclaimed, communal interests were represented and negotiated, and ways might be found to regulate behaviour and – in an ideal world – to promote harmony between neighbours, and between society and its lord. Battle Abbey’s court has been characterised as serving as ‘a species of parliament in the liberty’, where ‘the governed might give consideration to some, at least, of the matters affecting them [and] the suitors were constituted representatives speaking for the total body’.114 Battle was a far cry from a frontier lordship; but all liberty courts – including the comitatus or, indeed, the parliamentum of Glamorgan115 – operated on the same basis: they were instruments of lordly dominion; they were also public assemblies where people participated collectively in their governance. Moreover, for all the standardising influence of ‘national’ laws, each Marcher liberty proclaimed its individuality by adopting a distinct hybrid code of English and Welsh law; such minglings of legal custom or convention can also be found in Scotland, and even in liberties in Ireland and England. Nor should we underestimate their importance as integrating social and political forces.116 112

113 114 115 116

Cf. Harriss, ‘Political Society’, 54: ‘only the very greatest magnate could hope to encompass the whole shire within his influence and thereby control its officers and administration’. Also apropos is Crouch, ‘Stenton to McFarlane’, 194: ‘the most significant form of political organisation in England in the twelfth and thirteenth centuries had little to do with honors, counties and fees. It was a form of power focussed on a discrete region.’ R.C. Palmer, The County Courts of Medieval England, 1150–1350 (Princeton, 1982), 306. Searle, Lordship and Community, 393–4. M. Altschul, A Baronial Family in Medieval England: The Clares, 1217–1314 (Baltimore, 1965), 262. Wales and Ireland: B. Smith, ‘Keeping the Peace’, in J.F. Lydon (ed.), Law and Disorder in ­ThirteenthCentury Ireland (Dublin, 1997), 57–65, and the sources cited. Scotland: H.L. MacQueen, ‘The Laws of Galloway: A Preliminary Survey’, in R.D. Oram and G.P. Stell (eds.), Galloway: Land and Lord-

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This leads naturally into a closer analysis of how a liberty’s institutions and rights might shape local behaviour, assumptions and identifications. Relations between liberties and society no doubt involved a far more complex dialogue than the following comments can allow for. But liberties, it must be underscored, were not simply mechanisms for organising and enforcing superior authority; they were also intended, as Bishop Beaumont of Durham acknowledged in 1327, ‘to serve the people and deliver justice’.117 How far they actually fulfilled such roles is a different matter; yet the potential for a close association between liberty and society can perhaps best be indicated by brief reviews of four areas – justice, taxation, military service, and office-holding – and one overarching theme: ‘community’. Liberty justice may sometimes have been partial or rough; but we cannot simply assume that it was less useful and attractive than royal justice. It supplied ‘justice on the doorstep’; and, to follow up on Battle after 1450, ‘it may be that Battle as a miniature royal court was responding to current demand in exactly the same way as the central courts’.118 England’s royal courts, with their ‘stifling bureaucracy’ and often ‘hazardous and expensive’ procedures, were at best courts of last resort for ordinary litigants;119 Scotland’s equivalents remained relatively undeveloped. In thirteenth-century England, Cheshire, Durham, Hexhamshire, Tynedale and other liberties like Bury, Ely and Ramsey held eyres under their own justices; in late medieval Scotland, regalities like Annandale conducted justiciar and chamberlain ayres.120 Nor does the nature of the crown’s reserved jurisdiction in Irish liberties suggest that they lacked adequate legal armouries to do right to most demandants at English law. If the local justice system worked effectively (an important qualification), men can have had little need to sue in the Dublin courts.121 Indicative of the numerous ‘mere’ return-of-writs liberties in England is that of the miners of Alston Moor in Cumberland. Its court was equal to a shire court, and all the sheriff ’s jurisdiction was exercised by the miners’ bailiff.122 Nor was royal eyre justice dispensed other than in the liberty itself and by mediation of its own jurors, as was the case during the 1278–89 programme, for example, when Edward I’s itinerant justices had to hold special

117 118 119 120 121 122

ship (Edinburgh, 1991), 131–43. England: the 1259–60 Cheshire plea role reverberates with phrases such as ‘according to the form of law and usual customs of the district’: Calendar of County Court, City Court and Eyre Rolls of Chester, 1259–1297, ed. R. Stewart-Brown (Chetham Society, 1925), 1–34; more generally, Palmer, County Courts, 56ff. Note also ‘the custom of Copeland’ (c.1200): The Register of the Priory of St. Bees, ed. J. Wilson (Surtees Society, 1915), 545–6. The Parliament Rolls of Medieval England, ed. C. Given-Wilson et al. (Woodbridge, 2005), iv, 40. R. Somerville, ‘The Palatinate Courts in Lancashire’, in Harding, Law-Making and Law-Makers, 62; J.H. Baker, The Common Law Tradition (London, 2000), 284; and see also above, 19. A.H. Hershey, ‘Justice and Bureaucracy: The English Royal Writ and “1258” ’, EHR 113 (1998), 829, 839. RMS, i, no. 920: charter of Annandale (1409), cum curiis tam justiciarie quam camerarie. Cf. Frame, English Lordship, 26–7. The importance the miners attached to their rights is well documented: F.J. Monkhouse, ‘Pre­Elizabethan Mining Law, with Special Reference to Alston Moor’, Transactions of the Cumberland and Westmorland Antiquarian and Archaeological Society, new ser., 42 (1942), 50–5; Cal. Inq. Misc., vii, no. 519.

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sessions for liberties in most of the counties they visited.123 On all these counts, the door was closed, or half shut, to external jurisdiction and scrutiny; and justice might be essentially local justice. Even in England, then, a liberty’s judicial rights could be highly significant for social practice and unity: they allowed for communal participation in, and control over, peacemaking through law; and society might thereby sustain a common culture and identity according to its needs, values and customs – Westminster rules notwithstanding.124 The ability of some of England’s major liberties to shield people from regular general taxation brought further advantages, especially in view of the crown’s growing fiscal appetite from the 1290s onwards. In this regard Cheshire, Durham, Hexhamshire and Tynedale had a real relevance to their inhabitants – as is implied by the demands of the Commons that tax burdens should be shared despite privileges. But these liberties were rarely obliged to contribute; while the Welsh Marcher lordships were taxed only in 1292. Moreover, when liberties in Britain and Ireland experienced royal taxation, subsidies were normally granted, assessed and collected locally.125 The ‘fiscally-privileged community’ (though in Wales lords’ demands could be heavy) might also be a ‘military community’, and recognised as such by royal governments in their requests for infantry manpower. There was of course a considerable difference in scale between, on the one hand, the platoons raised from Alston for Scottish warfare after 1296 and, on the other, the ‘common armies’ of Dunbar, Galloway, Moray and Strathearn, the expeditionary forces of the earls of Desmond, Ormond and Ulster, or ‘the lord’s proprietary army’ of a Marcher liberty.126 But the principle was the same: often recruitment, mustering and even operational command remained under local control, to the extent that a liberty’s privileges could literally mobilise and regiment the ‘community’.127 123

124

125

126

127

D. Crook, Records of the General Eyre (London, 1982), 144–70. For the session held in Alston in 1279, see CDS, ii, no. 147. In Battle, Beverley, Dunstable, Redesdale, Ripon, Tynemouth and some other liberties, the lord’s officers effectively presided, and the king’s justices (or their representatives) seem to have taken subordinate roles. Cf. Court Rolls of Chester, xl: ‘The peculiar position of the county, with its self-contained system of justice, must have tended to preserve many ancient customs and usages.’ More generally, P. Brand, ‘Local Custom in the Early Common Law’, in P. Stafford, J.L. Nelson and J. Martindale (eds.), Law, Laity and Solidarities (Manchester, 2001), 150–9; and Searle, Liberty and Community, 218: for Battle’s men ‘the franchise was a shelter, behind which … their shortcomings were hidden from the view of experienced and implacable curial administrators’. Relevant comment includes J.F. Willard, Parliamentary Taxes on Personal Property, 1290 to 1334 (Cambridge, Mass., 1934), 29–31; P.H.W. Booth, The Financial Administration of the Lordship and County of Chester, 1272–1377 (Chetham Society, 1981), 116–26; Thornton, ‘Fifteenth-century Durham’, 89–90. Davies, Lordship and Society, 81. The men of Alston Moor were levied separately in 1297, 1307 and 1326: Cumbria Record Office, Kendal, Hothfield Deeds, WD/HOTH/Box 35 (uncatalogued letters patent, 21 July 1297); Parliamentary Writs, ed. F. Palgrave (London, 1827–34), I, 379; II, ii, 744. The fullest study by far of a liberty’s military organisation and ‘community’ is P. Morgan, War and Society in Medieval Cheshire, 1277–1403 (Chetham Society, 1987). The implications are illustrated in reverse in Liber S. Thome de Aberbrothoc (Bannatyne Club, 1848–56), i, no. 250: a laird in dispute with Arbroath Abbey repudiated its jurisdiction by sending his men to war with those of the sheriffdom of Forfar (1249). See more fully M. Prestwich, ‘ “Tam infra libertates quam extra”: Liberties and Military Recruitment’, below, 111–19.

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Nor should we ignore the relationship between administrative service and a liberty’s ‘social capital’. Officers shared in the authority of the jurisdiction; their careers, affiliations and outlook were thus shaped by it. Numerous factors determined appointments; but men’s local ties and know-how were often important considerations. In Lennox and Strathearn, office-holding (including jury service) allowed for ample local participation in governance and decision-making; it also provided a more obvious path to advancement than did the king’s provincial administration.128 Admittedly, in England from c.1250 there was at senior levels a discernible shift to a mobile corps of professional lawyers; while the expansion of the crown’s local bureaucracy was increasingly likely to draw a liberty’s gentry into county government and politics.129 But, on another perspective, in liberties like Brecon, Glamorgan and Oswestry some major posts went even to Welshmen, and numerous lesser offices were open to them.130 Here, as in other contexts, a liberty’s institutional systems and powers might well have important implications for identity and ‘community’. Paradoxically, however, liberties not only assisted processes of ‘community’ but may have set certain limits to the scope of such processes. From c.1200 ‘county communities’ often announced their presence in relation to royal government in the English polity’s heartlands (there is nothing comparable in Scotland). Nor, perhaps, does it surprise that one of the best documented ‘liberty communities’ in a legalistic sense is the royal appanage of Cheshire.131 But, broadly speaking, a liberty’s relative insulation from the English crown meant less need for group negotiation and action at the centre/locality interface than was the case in areas subject to direct crown control; and in England as elsewhere the ‘liberty community’ was moulded, to one degree or another, more by local obligations, relationships and circumstances. Was this ‘private’ or (to us) semi-hidden ‘community’ less real than its ‘public’ counterparts? We must bear in mind that contented communities do not generate the kind of records leading us to suppose that ‘collective encounters with external forces were the crucible of community’.132 It has also to be said that communitas is not just a matter of computing its formal expressions; it involves knowing more than is yet known about their actual socio-political content, whatever the point of origin. Yet a partial response to the question posed is that, vis-à-vis liberties, English counties did not have sole rights in political consciousness and ‘community-mindedness’ – or, we must continue, in ‘communities’ which, then as now, may often

128 129

Neville, Native Lordship, chap. 2. To judge from later evidence, however, office-holding in Cheshire was significant for communal cohesion: Clayton, County Palatine of Chester, Part II. 130 Davies, Lordship and Society, chap. 9. For local recruitment in Ireland (excluding native Irish, who were legally barred from office in both liberties and counties), see Frame, English Lordship, 19, 71–2. 131 See especially P.H.W. Booth, ‘Taxation and Public Order: Cheshire in 1353’, Northern History 12 (1976), 16–31. 132 Innes, State and Society, 123.

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turn out to be ‘ephemeral, specific to and dependent on particular contexts and activities’.133 First and foremost, the liberty-owner’s policies and his power (by its nature) could have broad implications for local politics and solidarities. His routine requests or demands prompted communal activity, as when ‘the knights and community of the Isle of Wight’ agreed payments to the earl of Devon before 1260.134 In Ireland and Wales, a pragmatic and accommodating lordship might often be no more circumscribed by ethnic boundaries than lordship was in Scotland. The Burgh earls of Ulster and the Butler earls of Ormond brought numerous Irish lineages within the ambit of their lordship and service; Roger Mortimer (d.1398) employed Philip ap Morgan as his steward of Denbigh, led large contingents of Welshmen to war, and received the accolade of a praise poem composed in his honour by Iolo Goch, one of the great Welsh poets of the day.135 At the opposite end of the spectrum, high-handed lordship invited robust communal reactions. When tensions arose in 1300 between Bishop Bek and the men of Durham over military service in Scotland, ‘they united against the bishop, saying that they were Haliwerfolk and held their lands by defence of St Cuthbert’s body, and did not have to cross the borders of the bishopric for king or bishop’.136 In 1294–5 Morgan ap Maredudd’s revolt against the lord of Glamorgan was backed by most Welshmen in the lordship; in 1294 the lord of Kildare’s flexing of his jurisdictional supremacy placed him at the mercy of John fitz Thomas and his Irish allies, who sacked Kildare and burned all the court rolls in the castle; in 1329 the earl of Louth was attacked and killed by the posse comitatus.137 A sharper focus suggests that liberties, as repositories of privilege, were an influential basis of collective awareness, aspiration and loyalty. Lord and ‘community’ might rally to protect the jurisdiction, as when in 1187 eighty men of Bury snatched wrongdoers from a nearby manor whose lord had declined to surrender them to the abbot’s court, or as when Durham, Hexhamshire and Tynedale refused assessment for the 1336 subsidies because they were ‘royal liberties’.138 The libertas of the lord was also likely to be construed as the libertates of its tenants or inhabitants. Thus the liberty became (as in Durham in 1300) a source for the ‘community’ of its own rights and freedoms; and, above all, a source of the laws, customs or norms by which it defined, reinforced and defended itself. A classic instance is provided by the charter of liberties, 133

134 135 136 137 138

V. Amit and N. Rapport, The Trouble with Community (London, 2002), 5. Cf. R. Horrox, ‘Caterpillars of the Commonwealth? Courtiers in Late Medieval England’, in R.E. Archer and S. Walker (eds.), Rulers and Ruled in Late Medieval England (London, 1995), 13: ‘The fashionable concept of the “county community” disguises the fact that what was involved was not a single body but a collection of individuals, who grouped themselves in fluid ways.’ N. Denholm-Young, Seignorial Administration in England (London, 1937), 100–1. Frame, Ireland and Britain, 196, 201–2, 297; Davies, Lordship and Society, 61. Historiae Dunelmensis Scriptores Tres, ed. J. Raine (Surtees Society, 1839), 76. Altschul, The Clares, 154; Stringer, ‘Nobility and Identity’, 213; B. Smith, Colonisation and Conquest in Medieval Ireland: The English in Louth, 1170–1330 (Cambridge, 1999), 114–15. English Lawsuits, ii, no. 581; TNA, E 159/117, m. 162.

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modelled on Magna Carta, which was granted in 1215 by the earl of Chester on the petition of the barons of Cheshire and witnessed by the comitatus Cestrie.139 In Wales ‘collective activity is everywhere’; but, from about the 1270s, nowhere did it manifest itself more vibrantly than in political action all over the March to secure grants of corporate privileges, often at considerable expense.140 In 1348 the Welsh tenants of Gower Iscoed obtained from John Mowbray the right to ‘enjoy all manner of laws and customs that they had in his lordship in his time and that of his predecessors’; but the most notable of such concessions, especially as regards communal rights in the exercise of justice, was the carta libertatis wrung from William Braose in 1306 by the men of ‘our English county of Gower’.141 Similarly, in c.1265 the leading tenants of Trim acquired a confirmation from their lord of privileges granted to them by the Lacies; in c.1280 ‘the community of the district’ negotiated an agreement with the lord of Copeland concerning its governance; in 1285 Melrose Abbey’s tenants in Carrick extracted from the earl restrictions on the power of his serjeants; and, on a rather different note, in 1315 ‘the communities of the county of Huntingdon and the Isle of Ely’ would take the bishop of Ely to task for his lack of publicspiritedness.142 Not all the examples just quoted show the ‘community’ forced to act because lordship and society had ceased to be at one; but such a divorce was clearly an important spur to group identification and representation. It may serve to underwrite how far the liberty-owner, as opposed to the state, ordered people’s behaviour and alignments. Yet when lordship was weak or in actual abeyance, ‘communities’ were capable not only of autonomous coordination: they might assume political or governmental responsibility for the common good; they might also see themselves as the custodians and embodiments of liberties, in every sense of that term, for which they depended on no lord save (perhaps) the king.143 From 1312 liberties throughout northern England – Allerdale, Beverley, Copeland, Durham, Gilsland, Richmondshire, etc. – organised themselves to buy off Scottish attacks.144 In c.1315 ‘the community of the Isle of Wight’ protested to Edward II against infringement of its customary exemption from scutage; in 1388 ‘the community of Beverley’ petitioned Richard II to prevent 139

140

141 142 143

144

The Charters of the Anglo-Norman Earls of Chester, c.1071–1237, ed. G. Barraclough (Record Society of Lancashire and Cheshire, 1988), no. 394; and compare the Durham charter of liberties (1303): Records of Antony Bek, 93–8. R.R. Davies, ‘Kinsmen, Neighbours and Communities in Wales and the Western British Isles, c.1100–c.1400’, in Stafford, Nelson and Martindale, Law, Laity and Solidarities, 180; Davies, Lordship and Society, 463–4. Sir Christopher Hatton’s Book of Seals, ed. L.C. Loyd and D.M. Stenton (Oxford, 1950), no. 398; T.B. Pugh (ed.), Glamorgan County History, iii: The Middle Ages (Cardiff, 1971), 240–1. Gormanston Reg., 176–7; St Bees Reg., 547–8; Facs. Nat. MSS Scot., i, no. 67; Parl. Rolls, iii, 114. Cf. A. Harding, ‘Political Liberty in the Middle Ages’, Speculum 55 (1980), 439: ‘it was the extinction of lordships which compelled the recognition of franchises as customary rights inhering in the communities’. C. McNamee, The Wars of the Bruces: Scotland, England and Ireland, 1306–1328 (East Linton, 1997), 133–9.

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intrusions by the sheriff in prejudice of its rights.145 In 1273 in Ewyas Lacy ‘all the men of the land’ had not bothered with such niceties: declaring they would die rather than allow a royal writ to be executed there, they briskly sent crown agents packing.146 We also find that in c.1327 ‘the English community of Glamorgan’ demanded restoration of the ‘right laws and ancient customs’ lost due to the oppression of its former lord Hugh Despenser; and that in 1316 the royal keepers’ exploitation of Glamorgan contrary to custom had provoked a rebellion by most of local Welsh society and some English tenants.147 On another front, ‘the community of Galloway’ petitioned Edward I in 1305 to be free of ‘an alien and unjust law’; in 1324 ‘the captains and all the men of Galloway’ gained a charter of liberties from Robert I.148 Earlier, on Alan of Galloway’s death in 1234, ‘the inhabitants of that land, wanting one lord rather than several, asked the king to disinherit the daughters and assume lordship over them’; then, when Alexander II insisted on partition, they rebelled to assert the rights of Alan’s (bastard) son over the claims of (legitimate) females, according to their own kin-based laws and customs.149 But – more broadly – what such cases bring back into play is the key role played by power structures like Galloway and Glamorgan in the governance of large tracts of Britain and Ireland. When lordship broke down, the ‘community’ took charge of its own affairs, and perhaps its identity would crystallise into a sense of self-determination or ‘political liberty’. Yet it cannot be said that a vacuum of lordship, leadership and control worked to the advantage of state and society; it might have the makings of a calamity. * I end with a view from England: By John’s reign the ‘county’ had come to be the great administrative and social force … at once an administrative circumscription, a local court, and a focus for local loyalties and local society. Administratively and geographically it was the shire, the comitatus; socially and emotionally it was the native homeland, the patria. It could be represented, it could negotiate with the king … and it could hold privileges. It was the bedrock of English society and government.150

Not all historians of medieval England’s local polity put the matter as confidently as James Holt has done; and similar reservations could probably be applied to areas in Wales, Ireland and Scotland shired in the English fashion. 145 146

147 148 149 150

TNA, SC 8/146/7290; CCR 1385–9, 401–2. Calendar of Ancient Correspondence concerning Wales, ed. J.G. Edwards (Cardiff, 1935), 38; cf. Select Cases in the Court of King’s Bench under Edward I, ed. G.O. Sayles (Selden Society, 1936–9), i, no. 18 (Ely, 1276). Calendar of Ancient Petitions relating to Wales, ed. W. Rees (Cardiff, 1975), 279; Pugh, Glam. County Hist., iii, 72–84. Parl. Rolls, ii, 247, 658; RMS, i, Appendix I, no. 59. The Chronicle of Melrose, ed. A.O. Anderson et al. (London, 1936), 83. J.C. Holt, Magna Carta, 2nd edn (Cambridge, 1992), 32.

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KEITH STRINGER

By the same token, the case for recognising the socio-political importance of liberties must not be overstated, if only because of their diverse structures, habitats and histories. There is thus no question of suggesting that every liberty became or remained a dynamic institutional or communal focus; that loyalties and identities were necessarily less complex, varied and fragile within liberties than outside them; or that their inhabitants were unaffected by external opportunities, ties and pressures, which no doubt were often multiple, tangled and unpredictable. But the county/sheriffdom was only one of the motors of local authority and control; it was not the only important arena where privilege and ‘community’ might interact; nor was it the only zone where society and political culture might (or might not) be deeply influenced by distinctive structures of rule, governance and lordship. Diversity not uniformity is what we see. It can therefore be ventured that, mutatis mutandis, Holt’s words are not wholly ­inapplicable to those units of jurisdiction and authority which, from a medieval ‘British’ perspective, complemented much of the power of the state.

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2 Arbitration and Anglo-Scottish Border Law in the Later Middle Ages

CYNTHIA J. NEVILLE

One of the defining characteristics of medieval liberties was their distinct status as geographically specific territories within which, as the jingle goes, the king’s writ did not run. Some were very small, consisting of only a handful of hundreds; others, like Durham, approximated the size of entire counties. Irrespective of their extent, however, all were also set apart, legally and conceptually, from the areas around them. This second, more fluid notion of liberties as spatially distinct sites forms the context for the study that follows, and the justification for treating the entire Anglo-Scottish border region as a de facto franchise. The marches of England and Scotland in the later Middle Ages shared many of the features that historians have traditionally associated with ‘genuine’ liberties. The king’s writ (or, in Scotland, his brieve) did in fact run there, but from the early years fourteenth century onwards both the English and the Scottish crowns were more likely to send their directives to specially empowered border officials (the wardens of the marches) than to sheriffs, much as the they did when they addressed the bailiffs of liberties rather than shrieval personnel. More tellingly, like the inhabitants of liberties elsewhere in the British Isles, the people who lived in the Anglo-Scottish border lands shared an identity born of political and legal circumstance. Petitions to the English parliament from the ‘poor commons’ of Cumberland or Northumberland, for example, frequently made allusion to the especially dire conditions affecting the lives of the people who lived within the marches, that is, the areas located in greatest proximity to the Scottish enemy. In similar fashion, individual petitioners, great and small, played up the fact that



The author wishes to acknowledge the financial support of the Social Sciences and Humanities Research Council of Canada in the research undertaken for this article.  H. Cam, Liberties and Communities in Medieval England: Collected Studies in Local Administration and Topography (London, 1963), 210.  Rot. Parl., ii. 104, 113, 240; Northern Petitions Illustrative of Life in Berwick, Cumbria and Durham in the Fourteenth Century, ed. C.M. Fraser (Surtees Soc., 1981), nos. 73, 113, 114, 119.

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the problems, challenges and dangers that they confronted in the marches did not trouble subjects elsewhere in the realm. If the border areas of England and Scotland represented unique political, social and cultural milieus on the peripheries of the two kingdoms, the laws that operated in the frontier region attested in equally strong fashion the distinctness of the region. The history of those laws is wholly separate from that of the common law in either kingdom. The customs and practices that governed the adjudication of offences committed in the marches were of considerable antiquity already when a mixed panel of noblemen and knights from each of the kingdoms first attempted to set them down in writing in 1249; and over the course of the following centuries these were enshrined in the increasingly elaborate clauses of indentures of truce that came to regulate Anglo-Scottish relations in the border region. Long after the system of wergilds had disappeared from English law, for example, the custom of the march permitted the kin of a murdered man to claim compensation from the slayer in the form of a fine known as manbote; and in its Scottish form of kinbut such compensation survived well into the late medieval period. The purpose of justice in the border tribunals, moreover, was different from that of the writ- and brieve-based actions at English and Scots common law. While disputes were sometimes settled by recourse to judicial combat, plaintiffs in march related cases were interested above all in securing compensation for harm or loss suffered at the hands of cross border felons. From the outset, then, the principles that underlay the development and elaboration of border law differed from those of the English and Scots common law systems. The ambitions of the twelfth- and thirteenth-century Scottish kings to control the lands north of the River Tyne and the shifting line of the Anglo-Scottish boundary down to 1237 played a crucial role in perpetuating the distinctive legal procedures of the region. The outbreak of open conflict between the kingdoms in 1296 proved even more important. Within a generation, the conditions generated by constant warfare transformed the maintenance of law and order in the border region into a matter of vital concern to both crowns, and necessitated the creation of special tribunals in which litigants from either kingdom might come together under conditions of truce to discuss their grievances. Open warfare, moreover, demanded unique dispute resolution mechanisms, designed above all

 



  

TNA, SC 8/126/6259; Ancient Petitions relating to Northumberland, ed. C.M. Fraser (Surtees Soc., 1966), nos. 174, 178. C.J. Neville, Violence, Custom and Law: The Anglo-Scottish Border Lands in the Later Middle Ages (Edinburgh, 1998), passim; see also G.W.S. Barrow, The Kingdom of the Scots: Government, Church and Society from the Eleventh to the Fourteenth Century, 2nd edn (Edinburgh, 2003), 305–6. Barrow, Kingdom, 126–8; W.W. Scott, ‘The March Laws Reconsidered’, in A. Grant and K.J. Stringer (eds.), Medieval Scotland: Crown, Lordship and Community (Edinburgh, 1993), 123, 129; G. Neilson, ‘The March Laws’, Stair Society Miscellany, Vol. I (Stair Soc., 1971), 12–14. Neilson, ‘March Laws’, 21; J. Wormald, ‘Bloodfeud, Kindred and Government in Early Modern Scotland’, Past and Present 87 (1980), 62. Neville, Violence, Custom and Law, 6, 8, 10, 40, 76–7, 79, 102, 112, 134, 190. Barrow, Kingdom, 112–29.

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to prevent individual acts of felony and trespass from escalating into full scale raids of reprisal. The geographical, political and material circumstances characteristic of liberties throughout the British Isles in turn bred a highly idiosyncratic range of identities and interests. This was as even more the case in the border region. One historian has argued that Thomas Gray, the author of the northern chronicle entitled Scalacronica, conceived of the areas designated as marches in northern England and southern Scotland as a wholly distinct community, set apart from the counties of Northumberland, Cumberland, Dumfries, Roxburgh and Berwick within which they lay.10 Other scholarly work has described the attempts, by and large successful, of the borderers to recast their legal past before the justices of King Edward I, creating for themselves a privileged jurisdictional space that, theoretically and metaphorically speaking, constituted as significant a franchisal immunity as those enjoyed by the liberties scattered across the northern parts of England.11 These assumptions also inform the study of arbitration presented here. If the inhabitants of the liberties in later medieval England, Scotland, Wales and Ireland shared a sense of identity and community, so, too, did they express their loyalties in unique ways. The Anglo-Scottish marchers’ tenacious championing of their legal customs, even in the face of strong pressure from the common law traditions of their respective kingdoms, were symptomatic of a loyalty to local interests that is still another feature of later medieval liberties. Elsewhere in this volume, Matthew Holford argues that a liberty’s continued existence required the defence of its privileges by the liberty holder, and the acquiescence of the crown.12 His words have particular resonance in the context of Anglo-Scottish border society in general and, more particularly, in regard to the legal procedures examined below. These legal peculiarities, too, could function effectively only with the twin supports of local communities from both sides of the boundary line and the cooperation of the rulers of the two kingdoms. Open war between the realms required that the people of the marches give their undivided allegiance to one king alone, but even in the most virulent phases of the conflict, English- and Scotsmen alike found in the processes associated with formal arbitration a source of strength and cohesion. * In October 1401 English and Scottish envoys assembled at Kirk Yetholm in Roxburghshire, ostensibly to negotiate a truce, but ultimately to hear Henry IV’s agents revive, for the first time in many years, the claim of the English

10

A. King, ‘Englishmen, Scots and Marchers: National and Local Identities in Thomas Gray’s Scalacronica’, Northern History 36 (2000), 223–4. 11 C.J. Neville, ‘Remembering the Legal Past: Anglo-Scottish Border Law and Practice in the Later Middle Ages’, in North-East England in the Later Middle Ages, ed. C.D. Liddy and R.H. Britnell (Woodbridge, 2005), 43–55. 12 M. Holford, ‘War, Lordship, and Community in the Liberty of Norhamshire’, below, 77–97.

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crown to lordship over Scotland.13 There followed several days of heated discussion in which the two sides exchanged ‘undiplomatic language’. Eventually, Henry’s commissioners suggested placing the question of sovereignty ‘under the judgment of some wise individual, above suspicion, who fears God and his own conscience’. Predictably, the Scots soundly rejected the offer, countering with a suggestion of their own that Henry’s title to the English throne similarly be put to arbitration. Discussions terminated abruptly, and the envoys returned to their respective homes. The rancour that beset the Kirk Yetholm meeting ensured that talk of a truce should fail. Although recent cross border depredations were sufficiently numerous to require bilateral discussion, in the tense political atmosphere of the Autumn of 1401 neither the Scots nor the English were prepared seriously to consider placing such momentous issues as the sovereignty of the Scottish kingdom or the dynastic claims of the house of Lancaster in the hands of some unnamed arbitrator. Significantly, however, it was specifically the matters at issue that generated the bitter discord, and neither side rejected as either unfamiliar or inappropriate the idea of subjecting legal matters to the process of arbitration. The place of arbitration and its relationship to the common law in later medieval England and Scotland are topics that are now well understood. Once believed to be ‘symptomatic of a judicial malaise’,14 and ‘lamentably prevalent because of the absence of a strong central legal system’,15 arbitration is now known to have played an important role in supplementing, and sometimes replacing altogether, the adversarial environment of court-based litigation. English scholars have amply documented recourse to arbitrators by the great magnates of the kingdom in a host of disputes, most often in claims to land, but including also cases of assault, theft, and homicide.16 Noblemen also played key roles in mediating disputes among members of the gentry,17 and the settlement 13 14

15 16

17

Anglo-Scottish Relations 1174–1328: Some Selected Documents, ed. E.L.G. Stones (London, 1965), 173–82. E. Powell, ‘Settlement of Disputes by Arbitration in Fifteenth-Century England’, Law and History Review 2 (1984), 26; see also E. Powell, ‘Arbitration and the Law in England in the Later Middle Ages’, TRHS, 5th ser., 33 (1983), 49–69. J. Wormald, Lords and Men in Scotland: Bonds of Manrent, 1442–1603 (Edinburgh, 1985), 40. C. Carpenter, ‘Law, Justice and Landowners in Late Medieval England’, Law and History Review 1 (1983), 225–6, 236; E. Powell, Kingship, Law and Society: Criminal Justice in the Reign of Henry V (Oxford, 1989), 97–100; M.A. Hicks, ‘Restraint, Mediation, and Private Justice: George, Duke of Clarence, as “Good Lord” ’, Journal of Legal History 4 (1983), 56–71; S. Payling, ‘Law and Arbitration in Nottinghamshire 1399–1461’, in J. Rosenthal and C. Richmond (eds.), People, Politics and Community in the Later Middle Ages (New York, 1987), 145–60; C. Rawcliffe, ‘The Great Lord as Peacemaker: Arbitration by English Noblemen and their Councils in the Later Middle Ages’, in J.A. Guy and H.G. Beale (eds.), Law and Social Change in British History (London, 1984), 34–54; C. Rawcliffe, ‘Parliament and the Settlement of Disputes by Arbitration in the Later Middle Ages’, Parliamentary History 9 (1990), 316–42; J.T. Rosenthal, ‘Feuds and Private Peace-Making: A Fifteenth-Century Example’, Nottingham Medieval Studies 14 (1970), 84–90. J.B. Post, ‘Courts, Councils, and Arbitrations in the Ladbroke Manor Dispute, 1382–1400’, in R.F. Hunnisett and J.B. Post (eds.), Medieval Legal Records: Edited in Memory of C.A.F. Meekings (London, 1978), 294–5; L. Rowney, ‘Arbitration in Gentry Disputes in the Later Middle Ages’,

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of grievances by arbitration and mediation extended also to outbreaks of urban strife and to commercial matters.18 In England in the later medieval period, in fact, the notion of ‘good lordship’ included the effective deployment of social and political influence at moments of tension within an affinity, and the formal mechanisms of the common law in many instances depended on the intervention of such good lords for the satisfactory resolution of grievances. Scottish historians are equally familiar with the ways in which arbitration complemented and supplemented the functions of the royal courts. North of the border the procedure had a long and distinguished history in the secular sphere. Adapted from both Roman and canonical models, by the early years of the thirteenth century it was frequently invoked owing to its ‘flexible and equitable’ procedure.19 In Scotland, moreover, the extensive jurisdictional powers that many of the greatest magnates enjoyed within their territories positioned them ideally to act as mediators in disputes among their kinsmen and tenants.20 More than any other factor, the enduring influence of the bloodfeud in Scotland ensured that resort to arbitration would become a prominent feature of the legal system. In a society in which lordship was heavily bolstered by ties of kinship, the maintenance of peace and stability was as much a function of magnatial power as it was the business of the royal judicial administration.21 As in the case of England, then, albeit for different reasons, historians have seen in arbitration in medieval Scotland a useful adjunct to the common law courts, and it is small wonder that the Scottish kings should fully have endorsed lordly mediation and why, on occasion, they agreed themselves to act as arbitrators between noble disputants.22 If recent scholarship has done much to recast recourse to arbitration as a positive feature of the legal landscapes of later medieval England and Scotland, it nevertheless remains the case that historians have discussed its procedures

18

19

20 21 22

History 67 (1982), 367–76; and D. Tilsley, ‘Arbitration in Gentry Disputes: The Case of Bucklow Hundred in Cheshire, 1400–1465’, in D.E.S. Dunn (ed.), Courts, Counties and the Capital in the Later Middle Ages (Stroud, 1996), 53–70. L. Attreed, ‘Arbitration and the Growth of Urban Liberties in Late Medieval England’, Journal of British Studies 31 (1992), 205–35; C. Rawcliffe, ‘ “That Kindliness Should be Considered More, and Discord Driven Out”: The Settlement of Commercial Disputes by Arbitration in Later Medieval England’, in J. Kermode (ed.), Enterprise and Individuals in Fifteenth-Century England (Stroud, 1991), 99–117; J.W. Bennett, ‘The Medieval Loveday’, Speculum 33 (1958), 356, 359. Examples of the participation of members of urban guilds and fraternities in cases of arbitration may be found in A.K.R. Kiralfy, A Source Book of English Law (London, 1957), 241–4, and in the sources cited by Post, ‘Courts, Councils and Arbitrators’, 296, n. 52. T.M. Cooper, ‘From David I to Bruce, 1124–1329: The Scoto-Norman Law’, in Introduction to Scottish Legal History (Stair Soc., 1958), 11; Regiam Majestatem and Quoniam Attachiamenta, ed. T.M. Cooper (Stair Soc., 1947), 27; P. Stein, ‘The Source of the Romano-Canonical Part of Regiam Majestatem’, SHR 48 (1969), 112; K.M. Brown, Bloodfeud in Scotland: Violence, Justice and Politics in an Early Modern Society (Edinburgh, 1986), 48; Wormald, ‘Bloodfeud, Kindred and Government’, 73. A. Grant, ‘Crown and Nobility in Late Medieval Britain’, R. Mason (ed.), Scotland and England 1286–1815 (Edinburgh, 1987), 46. Wormald, Lords and Men, 126; Brown, Bloodfeud, 48. Brown, Bloodfeud, 56.

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almost exclusively in the context of disputes between private parties, and more specifically as a legal option that individual complainants adopted in order to circumvent or to supplement litigation at common law. In large part this view is a consequence of the way in which scholars have approached the history of the law itself in each realm, that is, as a more or less coherent system of rules and procedures in which, over the course of several centuries, and to varying degrees, the rulers of each kingdom established their right to adjudicate matters that, in an earlier age, had been essentially private quarrels among their subjects. In England, the origins of this transformation have traditionally been located in the later twelfth century, in the reforms of Henry II (1154–89); in Scotland, a similar process was under way a few generations later, by the middle years of the reign of Alexander II (1214–49). Much of the historiography of this subject, moreover, has tended to focus on the question of whether or not the growth of royal prerogatives occurred at the expense of baronial privilege, and so to portray the steady development of the common law system in each of the two kingdoms as an essentially adversarial process.23 This debate is still unresolved, and much scholarly attention remains fixed on the degree to which magnates in England and Scotland either accepted or challenged royal efforts to dominate the arena of dispute resolution. The emphasis on the theme of competition between magnates and kings for control of judicial authority, however, has meant that resort to extra-curial settlement has most often been treated as merely one of an array of legal mechanisms available to aggrieved complainants. This essay approaches the subject of arbitration from a wholly different perspective, one that focuses clearly on the place of mediation in a much broader context. The customs and principles that informed the practice of arbitration were ideally suited to meet the unique needs of the Anglo-Scottish border lands – just as they were, incidentally, that other troublesome frontier region, the Welsh Marches.24 This was the case for several reasons. In the late thirteenth and the early fourteenth centuries, it is true, the once close link between mediation and the settlement of kin-based feuds had all but disappeared in northern England, but it still informed legal customs throughout much of Scotland, and indeed, the influence of Scottish practice loomed large in the making of border law.25 Recourse to the arbitration of specific local grievances, moreover, offered a means for royal officials to avoid addressing directly politically fraught questions of sovereignty and jurisdiction. Such troubles might too easily jeopardise any discussion whatsoever of march related disputes, as they did on repeated

23

The literature here is vast, but for an excellent summary of the debate and its application to both England and Scotland, see H.L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993), 6–26, and, in the Scottish context more particularly, Wormald, ‘Bloodfeud, Kindred and Government’, 78–85, and J. Brown, ‘Taming the Magnates?’, in G. Menzies (ed.), The Scottish Nation (London, 1972), 46–59. 24 L.B. Smith, ‘Disputes and Settlements in Medieval Wales: The Role of Arbitration’, EHR 106 (1991), 835–60. 25 C.J. Neville, ‘Scottish Influences on the Medieval Laws of the Anglo-Scottish Marches’, SHR 81 (2002), 161–85.

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occasions during the reign of Richard II, when the English crown refused to allow the wardens to meet their counterparts within territory that the Scots had reclaimed as their own.26 Finally, the avowed purpose of mediation – providing fair and equitable compensation to injured parties – promised satisfaction in the kinds of complaints that were most frequently the subject of march tribunals, notably the theft of herds of cattle and sheep in cross border forays.27 In the years after 1296 royal agents from England and Scotland began to forge a comprehensive system of law suited to the unique social, political, and legal conditions of the border lands. Its chief architects were lordly residents of the march region themselves; its procedures and practices, drawing directly on notions of private dispute settlement, consciously recalled forms of resolution adopted to deal with the feud of the Anglo-Saxon past. The border assemblies that brought together wardens and conservators of the truce from both realms – the umpires and overseers of English and Scottish legal parlance, respectively28 – quickly became known as days of march, echoing the term ‘loveday’ specifically associated in later medieval legal custom with extra-curial mediation.29 Wholly new in this reconceptualisation of the principles of arbitration, however, was the role that fell to the wardens and conservators of the truce of either realm. Collectively, they assumed the responsibilities of mediators at days of the march, charged with assessing the extent of injuries committed by miscreants and agreeing on the compensation that would be paid to victims. Like their counterparts in private disputes, they were viewed as members of ‘a small discrete community, who might realistically be expected to arrive in court with a knowledge of the facts and a preconceived verdict’.30 Drawn for the most part from the ranks of the northern secular and ecclesiastical nobility, senior members of the families of Neville, Percy, and Douglas and the men who occupied the episcopal sees of Durham and Carlisle were well versed in the conditions that generated cross border tension and feud. Understanding the framework of border law from this perspective makes it possible to find strong parallels between the kind of private arbitration practised in medieval England and Scotland on the one hand, and, on the other, the border legal procedures developed in the course of the fourteenth and fifteenth centuries. By 1300 recourse to out of court settlement had acquired a fairly standard form in both kingdoms. The Scottish treatise entitled Regiam Majestatem, probably drafted towards the end of the reign of Robert Bruce, discussed extra-curial 26 27

28

29 30

Neville, Violence, Custom and Law, 82; A.J. Macdonald, Border Bloodshed: Scotland, England and France at War, 1369–1403 (East Linton, 2000), 116, 120, 165. More weighty matters, however, were also the business of arbitration, most notably William earl of Douglas’s capture, in 1358, of the English-held Hermitage castle. Rot. Scot., i. 896; The Douglas Book, ed. W. Fraser, 4 vols. (Edinburgh, 1885), i. 233. Rowney, ‘Arbitration in Gentry Disputes’, 368; Rawcliffe, ‘The Great Lord as Peacekeeper’, 48; Regiam Majestatem, 107–8; The Practicks of Sir James Balfour of Pittendreich, ed. P.G.B. McNeill, 2 vols. (Stair Soc., 1962–3), ii. 413–14. Bennett, ‘Medieval Loveday’, 359, 361; M. Clanchy, ‘Law and Love in the Middle Ages’, in J. Bossy (ed.), Disputes and Settlements: Law and Human Relations in the West (Cambridge, 1983), 58–61. Rowney, ‘Arbitration in Gentry Disputes’, 368.

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settlements in some detail;31 two and a half centuries later, many of its provisions were reproduced, in some cases very closely, in the treatise known as Balfour’s Practicks.32 Although the authors of legal treatises in England seldom addressed directly the topic of arbitration, lawyers there were already familiar with mediated settlements and their attendant bonds and recognisances well before the end of the thirteenth century.33 Initially, and most obviously, both parties had to agree publicly to accept arbitration (the submissio of Roman and canon law, known as the compromissio in secular law).34 In fourteenth- and fifteenthcentury England such agreements were often enrolled in Chancery. Thus, to cite one example only, in 1412 Alexander Meryng recorded in the Close Rolls his agreement to submit to the arbitration of three others in the matter of title to a property in Little Markham, Nottinghamshire.35 In Scotland, the compromissio took the form of a written bond, and often cited in this instance is the agreement sealed in 1409 by Robert Stewart duke of Albany and Archibald earl of Douglas, in which the parties arranged for the appointment of arbitrators to settle any disputes that might arise between them or members of their affinities.36 Once arbitration had been agreed, each side nominated arbitrators, usually one, three, five, or seven in number, not merely because, as the author of Regiam Majestatem stated, ‘God delights in odd numbers’, but more pragmatically in order to ensure a majority decision.37 In both later medieval England and Scotland the mediators consisted of noblemen of rank and status, kinsmen of the complainants, or ‘impartial’ friends, but it was not uncommon to include among them men learned in the law, whose expert advice might prove useful if negotiations included difficult points of law.38 As Keith Brown has noted, however, knowledge of the law was not normally a prerequisite in a capable arbitrator, ‘for what was at issue was not necessarily points of law’.39 In cases of deadlock, which might occur when there was an even number of arbitrators, both the English and Scottish systems made provision for the appointment of umpires, known north of the border as overseers. The written agreement clearly identified a date, 31 32

33 34 35 36 37 38

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Regiam Majestatem, 105–11. Balfour’s Practicks, ed. McNeill, ii. 411–17. The circulation of manuscript copies of the Regiam may even have provided the earliest wardens of the Scottish marches with some practical guidance in the matter of arbitration. It is interesting to note here that the testaments of the later fourteenth-century warden James Douglas of Dalkeith included mention of law books ‘of the statutes of the Scots realm’, perhaps a copy of an early manuscript containing Regiam Majestatem. See MacQueen, Common Law, 34, 104. Powell, ‘Settlement of Disputes’, 25–6. Powell, ‘Arbitration and the Law’, 54. CCR, 1409–13, 397, CCR, 1413–19, 50–4; see also CPR, 1408–13, 431–2. For a similar submission, this one relating to the manor of Ladbroke, see Post, ‘Courts, Councils and Arbitrators’, 322–3. National Archives of Scotland, RH5/223, printed in William Fraser, The Douglas Book, 4 vols. (Edinburgh, 1885), iii. 369–71, and discussed at length in Wormald, Lords and Men, 39–40. Regiam Majestatem, 108; Powell, ‘Settlement of Disputes’, 33. This summary of the several stages involved in the settlement of disputes by arbitration draws heavily, for England, on the work of Powell, ‘Arbitration and the Law’, 55–6, as well as his ‘Settlement of Disputes’, 33–5 and, for Scotland, on Brown, Bloodfeud, 50–1; see also Rowney, ‘Arbitration in Gentry Disputes’, 368. Brown, Bloodfeud, 50.

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the loveday, by which time deliberations must be concluded, and often, too, specified a place where the mediators should meet. The process of arbitration could succeed only if all parties were willing to abide by the decisions made at a loveday, and for this reason the compromissio usually included clauses that set out the mediators’ terms of reference, as well as formal undertakings by the disputants that the award made at the loveday would be respected. Arrangements for the settlement of disputes at medieval lovedays generally allowed for considerably more flexibility in the handling of evidence and proof than did court based litigation. Arbitrators accepted both oral and written testimony. A comprehensive roll of proceedings relating to a quarrel over the manor of Ladbroke in Warwickshire that went to arbitration in the late fourteenth century, for example, includes the records of both oral and written testimony delivered in several judicial and extra-judicial venues, and the much studied Paston and Plumpton letters of the fifteenth century also include mention of these sorts of documents.40 Similar evidence survives in Scottish cases.41 But lovedays were by no means informal affairs: the parties in dispute often brought to these venues large numbers of friends, retainers, and supporters, many arrayed in the livery of a great lord. The indenture of award, known in Scots law as the decreet, was a lengthy and elaborate document. The decisions it laid out were binding on all parties, and sufficiently weighty to merit formal enrolment, in England in Chancery, in Scotland often in the records of parliament and, later, those of the Lords of Session. The common law in both realms offered legal remedies designed to punish infractions committed against the terms of the award.42 The awards themselves most often consisted of a monetary payment offered to the person whom the arbitrators had deemed the more grievously injured. Thus, in 1458, Richard duke of York negotiated a peace between the family of Henry Pierpont on the one hand, and those of Thomas Hastings and Henry Ferrers on the other, following the murder of Pierpont’s brother. Pierpont won the respectable sum of £40. Hastings and Ferrers, for their part, secured agreement from the murdered man’s brother that he would henceforth show them his ‘frendelyhod’ and abandon all suits against them in the matter of the homicide.43 In Scotland, too, compensation (known as assythment) ‘was usually at the core’ of written decreets.44 Here, as in England, the purpose of arbitration was not so 40

41

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Post, ‘Courts, Councils and Arbitrators’, 302–39; Paston Letters and Papers of the Fifteenth Century, ed. N. Davies, 3 vols. (Oxford, 1971–6), i. nos. 5, 7–12; ii. 505–7; The Plumpton Letters and Papers, ed. J. Kirby (Camden Soc., 1996), 15, 81–2, 86, 116–17, 130–1, 257, 261–2, 267, 272–3, 275, 277, 312. See examples cited in Brown, Bloodfeud, 52, and the records generated by the dispute over the estates of James second earl of Douglas, APS, i. 556–7; Registrum Honoris de Morton, ed. T. Thomson, 2 vols. (Bannatyne Club, 1853), i. lxvii–lxxvi; The Douglas Book, ed. Fraser, iii. nos. 41, 296, 340–1. The resolution of the inheritance dispute is discussed in M. Brown, The Black Douglases (East Linton, 1998), 86–7. Powell, ‘Arbitration and the Law’, 60; Regiam Majestatem, 109–10; Balfour’s Practicks, ed. McNeill, 415–17. Rosenthal, ‘Feuds and Private Peace-Making’, 88–90. Brown, Bloodfeud, 53; see also Wormald, ‘Bloodfeud, Kindred and Government’, 66, and Wormald, Lords and Men, 128.

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much to acknowledge innocence or to assign guilt as it was to restore harmony and peace between feuding parties and to ensure that each came away from the process satisfied that his grievances had been resolved one way or the other.45 Flexibility and simplicity of procedure and, comparatively speaking, speed of process: these were among the most attractive features of extra-curial legal action when two parties sought to resolve their disputes. These advantages were of even greater moment in the border regions of England and Scotland where, in the tense atmosphere of open war that characterised the later medieval period, acts of homicide, larceny, or assault often escalated into dangerous raids and reprisals, and all too easily assumed international dimensions. Very soon after 1296, it became apparent in England that the common law administered in the royal courts of the marches was unsuited to the task of providing satisfaction to the victims of cross border violence. In England, royal justices of assize sometimes used the threat of Scottish invasion as an excuse to refuse altogether to travel to Cumberland and Northumberland,46 so much so that the commons of the northernmost counties of England sought the constant reassurance of the king that sessions of assize would be held on a regular basis.47 English plaintiffs frequently ignored the matter of national allegiance altogether and formally indicted subjects of the Scottish crown for felonious acts committed in England, only to suffer frustration when those misdoers came to trial. Thus, in 1359 the Scotsman John de Ayton appeared at sessions of gaol delivery convened in Carlisle charged with stealing some eighty animals and, further, of adhering to the king’s enemies. On this occasion the alleged offender won remission to gaol while the justices enquired into his status, and eventual release from custody,48 but much more often Scottish truce breakers walked out of court as free men (and women) when the justices ruled that they had no authority to put such suspects to trial at English common law.49 During his tenure of the wardenship of the East March in the early years of the fifteenth century, John of Lancaster frequently complained to the royal council about the impunity with which miscreants on both sides of the border committed ‘armed incursions, robberies, pillages, prises of prisoners, cattle raids, raids on goods, and other acts of war’, while officials on neither side made any attempt to seek or give redress for such offences.50 The frustration that John of Lancaster expressed in his regular letters to Westminster echoed the remarks that the Scottish king himself had made a generation earlier about his inability to control acts of violence committed in

45 46 47 48 49 50

Powell, ‘Settlement of Disputes’, 35–6; Brown, Bloodfeud, 54–5. C.J. Neville, ‘Gaol Delivery in the Border Counties, 1439–1459: Some Preliminary Observations’, Northern History 19 (1983), 46–7. See, for example, Rot. Parl., iii. 139. TNA, JUST 3/143 m. 1d. The case is reviewed in C.J. Neville, ‘The Law of Treason in the English Border Counties in the Later Middle Ages,’ Law and History Review 9 (1991), 8–9. Ibid., 10–22; TNA, C 145/97 no. 6. BL MS Cotton Vespasian F VII, fo. 67, discussed in Neville, Violence, Custom and Law, 104–5.

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the English marches by Scottish felons.51 The threat to national security posed by border criminals, then, was a matter of grave concern to the fourteenthand fifteenth-century kings of England and Scotland; such incidents were also the stuff of numerous complaints in parliament in both realms. Despite their acknowledgment of the evils of cross border violence, neither king could afford to cede jurisdiction over border felons to the other side; to do so would be to undermine his own sovereignty in a region with a still hotly contested border line. In the end, the inhabitants of the marches themselves, under the capable direction of wardens of the marches chosen from among the great magnates of the region, found in the customs and practices associated with formal arbitration a means of coping effectively with the problems peculiar to the frontier region. Those hallmarks of the arbitration process, flexibility, simplicity, and speed, were adopted wholesale into border legal practice, with the communities of each of the aggrieved marches assuming the role of injured parties, and the wardens and conservators of the truce those of mediators. The compromissio of private arbitration, that is, the formal, written agreement to submit disputes to the mediation of great lords, found expression in the commissions that authorised English and Scottish wardens to effect a suspension of hostilities, and in those that empowered conservators to submit claims concerning breach of the truce to adjudication and settlement. In like fashion, the documents produced following deliberations at the days of march, which set out the compensation that each side would pay the other, assumed the significance and the authority of decreets and indentures of award. It is hardly surprising, then, that the terminology found in the texts of truces and other documents generated in border related cases should be redolent of the language of mediation and conciliation. Thus, at Thorp in 1323, commissioners representing Kings Edward II and Robert Bruce swore solemnly to observe the armistice and to submit to the judgment of the wardens of the marches ‘any matter pertaining to the truce that causes discord between the parties’.52 In a more elaborate agreement sealed at Roxburgh in 1367 representatives of the two crowns once again swore to observe the terms of a new armistice, and made detailed provision for a long list of warden-conservators appointed by both sides to discuss and resolve ‘all wrongs, damages and injuries’ done in the marches during the truce.53 Much like the compromissiones of private arbitration, this agreement went on to specify places in each of the English and Scottish East and West Marches where days of truce or days of march – lovedays – would be held, and the date by which the meetings must have concluded their business. Like agreements between private parties, moreover, the Roxburgh document of 1367 provided that ‘if some matters remain unresolved at that time, the wardens shall arrange for further days [of march] to be convened, matters at these to

51 52 53

Cambridge University Library, MS Dd.3.53, fo. 439. Foedera, ed. Rymer, ii (ii). 273–4. Rot. Scot., i. 914. For a similar agreement dated 1386, see Foedera, ed. Rymer, iii (iii). 205.

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be completed by Candlemas next’. Further clauses touched on the retinues of friends and supporters that each side might bring to the meetings, and charged the wardens with making restitution in all cases in which compensation and redress were awarded. Two agreements sealed at Haddenstank and Lochmaben in the fall of 1398 made even more detailed arrangements for the settlement by arbitration of cross border offences committed during periods of truce.54 The texts of these documents recall more explicitly than ever before the procedures and practices of extra-curial dispute resolution; they also illustrate clearly the extent to which royal officials in the border lands of both kingdoms had adapted the main features of arbitration to suit the unique conditions of the marches. The agreements confirmed the arrangements set out in 1367 for the appointment of warden-conservators and repeated the promises that each made on behalf of the inhabitants of his respective territory to abide by the awards made at days of truce. As was the case in private arbitration, both sides were now required to bind themselves under pain of punishment to observe the awards that would be made at future days of march; each also offered pledges, identified by the Scots term borowis, who (also under threat of penalty) swore likewise. On this occasion, Scottish officials identified three men as particularly notorious offenders against the recent armistice, who ‘unmesurit Harmes has done within the tyme of this Trewe’, and undertook to present them at a forthcoming day of march subject to a hefty fine of £3000. The agreements enumerated several sites and dates for future meetings, with all disputes to be resolved before Candlemas 1399 in the East March, and Shrove Sunday in the West. Both sides then set their seals to the documents, and the copies retained by the English commissioners, at least, duly found their way into Chancery at Westminster. The ephemeral nature of the documents that record the details of awards made at later medieval days of march has mitigated against the survival of more than a handful of parchment agreements. Nevertheless, those that remain extant reveal clearly that their aims were remarkably similar to those that governed mediation in the private sphere. Above all, each of the parties to a dispute had to achieve some measure of satisfaction, and it is significant in this context that records arising from the days of truce often refer to compensation in such terms as redresse, reparacion, or restitucion,55 language found also in records of arbitration between private litigants.56 Reparations, moreover, had to be mutually acceptable, and extant evidence shows that mediators in border related cases strove hard to arrive at fair and reasonable assessments of collective damages. In the first instance, these were assigned to the wardens of either realm, then subse54 55 56

Foedera, ed. Rymer, iii (iv). 150–3; TNA, E 39/95/11. See, for example Cumbria Record Office, Carlisle, DC 1/2, fo. 41d. See, for example, Rosenthal, ‘Feuds and Private Peace-Making’, 90. For the language and rituals associated with mediation in the wider medieval context, see G. Althoff, ‘Satisfaction: Peculiarities of the Amicable Settlement of Conflicts in the Middle Ages’, in Ordering Medieval Society: Perspectives on Intellectual and Practical Modes of Shaping Social Relations, ed. B. Jussen (Philadelphia, 2001), 270–84.

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quently distributed among individual complainants. Thus, in 1387 a panel of jurors drawn from either realm determined that the Northumberland nobleman, William Heron, must return to the Scottish warden of the East March the 320 oxen and horses and the 1006 sheep that he had stolen in a raid, together with £100 in money; in return, Heron was to receive a roughly similar sum that he in turn claimed had been carried off by Scottish raiders.57 At the day of truce held at Haddenstank in October 1398, English and Scottish assessed compensation in the matter of two separate cross border incidents,58 and the Scottish Exchequer Rolls that cover this period include several entries directing payments to one of the wardens, David Stewart duke of Rothesay, for monies that he had disbursed in the aftermath of the business conducted there.59 Redress and compensation assumed a variety of forms. Most obviously, they were offered and accepted in coin, as occurred in 1378 and 1381, for example, when the bishop of Durham and John of Gaunt respectively paid sums of money to aggrieved Scottish plaintiffs,60 or in 1383, when the earl of Carrick, accepting responsibility for a recent Scottish raid, agreed to surrender a quantity of money to the English warden at Roxburgh.61 But redress might also be given by other means: in the exchange of prisoners, the temporary suspension of trade restrictions, or the cancellation of ransoms outstanding on either side.62 On some occasions, recognitors from each realm tried to calculate equal amounts of damage, hoping that the debts of one side would cancel those of the other. Henry Percy sought to make such an arrangement in 1378, when he brokered with the warden of the Scottish East March an exchange of goods and prisoners. Flexibility and creativity, the features that characterised arbitrated settlements among private litigants, also helped to facilitate arrangements made at border law. Just as disputes submitted to arbitration in both England and Scotland sometimes benefited from the technical expertise of lawyers, so, too, did some border related cases. Especially important in this context was a sound appreciation of the laws that governed warfare, for there were occasions on which the status of an offence as either licit or unlawful turned on a clear identification of the specific circumstances in which it had been committed. As early as 1373, then, ‘men learned in the law’ began to act in deliberations held in the English marches, where the collective experience with both the common and the Roman civilian traditions was particularly valued.63 The arbitrated settlement of a bitter dispute between Henry Percy and William earl of Douglas drew on the expertise 57 58 59

60

61 62 63

Rot. Parl., iii. 255–6. TNA, E 39/95/11. Rotuli scaccarii regum Scottorum. The Exchequer Rolls of Scotland, ed. J. Stuart and G. Burnett, 23 vols. (Edinburgh, 1878–1908), iii. 465, 472–4, 479. For similar examples from England, dated 1426, see BL MS Cotton Cleopatra F IV, fo. 25; TNA, E 404/42/297; E 40443/169. CCR, 1377–81, 195; Rot. Scot., ii. 38–9; TNA, E 364/16, mm. 2, 5d; E 101/318/29; E 403/484; John of Gaunt’s Register, ed. E.C. Lodge and R. Somerville, 2 vols. (Camden Soc., 1937), ii. no. 573; CIPM, xvi. nos. 234, 27. TNA, E 39/102/36. Rot. Scot., ii. 311, 86, 100; CPR, 1381–5, 84, 182; Foedera, ed. Rymer, iii (ii). 147. Neville, Violence, Custom and Law, 59.

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not merely of knights well versed in the laws of war, but of Roger de Fulthorp, then a justice of assize assigned to the northern circuit, and poised to begin a career on the Common Bench.64 By 1390, Richard II’s instructions to his border agents were requiring that agreements with the Scots concerning the form and manner of resolving cross border disputes be formally notarised.65 As the fourteenth century wore on, moreover, lawyer and magnates alike demonstrated an increasing willingness to draw on different kinds of testimony when assessing the damages and compensation owed to injured parties, just as arbitrators did when they adjudicated private disputes. As early as 1237, for example, the papal legate Ottobuono submitted the claims of the Scottish king to 200 librates of English land to a body of noble recognitors, a process that resulted in the establishment of an Anglo-Scottish border line that was to endure for centuries.66 Again, in 1245 a tribunal convened to determine title to lands near Kelso heard the testimony of twelve witnesses, six English knights and six Scots, many of whom assembled again just a few years later to declare the ‘custom’ of the march in these and other matters.67 From the 1320s on, the awards made at days of truce were almost all based at least in part on the sworn testimony of mixed juries. In fact, so important was this kind of evidence that wardens from both sides were prepared to go to great lengths to secure the attendance there of witnesses, plaintiffs, and other relevant persons. In the early 1380s, for example, Henry Percy warned one marcher lord that failure to attend a forthcoming day would entail severe punishment;68 just a few years later, the earl of Douglas exerted similar pressure on residents of the Scottish East March to attend in person a day of truce.69 Beginning in 1397, however, written bills of complaint also became admissible as evidence, and in the early years of the fifteenth century border law made provision for the delivery of such documents well in advance of scheduled days of march.70 Recourse to the written records of inquests ordered by the king or the chancellor of either realm also came increasingly to afforce claims for compensation proffered by disputing parties. Such supporting documents were especially pertinent in complex cases involving the plundering of ships or their cargoes on the high seas,71 and in the settlement 64 65 66 67 68 69 70

71

Rot. Scot., i. 955. BL MS Cotton Vespasian F VII, fo. 33. F.M. Powicke, The Thirteenth Century 1216–1307, 2nd edn (Oxford, 1962), 586–7; D.M. Williamson, ‘The Legate Otto in Scotland and Ireland, 1237–40’, SHR 28 (1949), 20. TNA, SC 1/2/166A, edited and translated in Anglo-Scottish Relations, ed. Stones, 54–7; Neilson, ‘The March Laws’, 16. Northumberland Record Office, Newcastle, ZSW 1/101, 102, discussed in Neville, Violence, Custom and Law, 86–7. TNA, E 39/95/2. Foedera, ed. Rymer, iii (iv). 136–7, discussed in Neville, Violence, Custom and Law, 79–80, 128, 130, 132, 133, 137, 154, 157, 159, 165, 167, 195. Compare these provisions with those discussed in Powell, ‘Settlement of Disputes’, 34. See, for example, TNA, C 1/28/240. Similar arrangements for the gathering and consideration of written evidence concerning claims at private arbitration are discussed in Post, ‘Courts, Councils and Arbitrators’, 295, and examples of them are scattered throughout the documents that Post edits in respect of the Ladbroke manor dispute. See ibid., 302–39.

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of claims that lingered unresolved from the administration of one warden into that of the next.72 The flexibility of border legal procedure was well suited to the vagaries of frontier justice, the effectiveness of which depended ultimately on the willingness of the subjects of the English and Scottish crowns to set aside, however briefly, the political and diplomatic issues that troubled relations between the kingdoms. Scholars are in general agreement that private arbitration was essentially ‘intra- rather than inter-class based’, and that it seldom worked to the advantage of the poor, who did not have the means to offer formal recognisances for their observance of an award, much less to surrender the substantial sums of money that might be assessed against them.73 At first glance this was also the case at border law, where the magnitude of many incidents of violence demanded reparation and redress on a substantial scale. When English and Scottish mediators convened at Berwick in 1380 to address a series of alleged breaches of the truce by both sides, for example, the awards they assigned amounted to more than £500.74 Still again, a later fifteenth-century panel of arbitrators considered two claims from the wealthy prior of Durham, one for the substantial sum of £422, the other for £58.75 A closer examination of surviving source materials, however, suggests that this conclusion is open to dispute. In 1387 Henry Percy, warden of the East March, paid over the modest amounts of £7.18s.4d. and £28.17s. to Scottish plaintiffs in compensation for the unlawful activities of border felons.76 In the opening years of the fifteenth century, although the Northumberland nobleman Thomas Gray claimed more than £3000 against the Scots after a punishing raid on his castle at Wark, he did so on behalf of several hundred of his tenants as well as his own family,77 and Henry Percy set out for the ill fated day of march at Kirk Yetholm in the late summer of 1401 with an advance from the Exchequer of 200 merks, which he intended to remit to the warden of the Scottish East March in partial payment of damages arising from several recent cross border infractions.78 Similarly, out of a total award assessed in 1426 at £200, Robert Umfraville oversaw the disbursement of small sums to several Scottish plaintiffs.79 The practice of submitting to arbitration the collective claims of entire border communities was a peculiarity of border

72

73 74 75 76 77 78 79

E.g. BL MS Cotton Vespasian F VII, fos. 30, 33, and the matter of the Scottish attack on the fair at Roxburgh in 1377, H.T. Riley, ed., Thomae Walsingham Historia Anglicana, ed. H.T. Riley, 2 vols. (RS, 1863–4), i. 340. Rowney, ‘Arbitration in Gentry Disputes’, 368; Wormald, ‘Bloodfeud, Kindred and Government,’ 84–5. Rot. Scot., ii. 30–1; CPR, 1377–81, 580; John of Gaunt’s Register, ed. Lodge and Somerville, ii. no. 439; CCR, 1377–81, 431–2. Muniments of the Dean and Chapter, Durham, Registrum Parvum, iii, fo. 123d. CPR, 1385–88, 412. TNA, C 81/601/1853. TNA, E 28/9, sub 15 June 2 Henry IV; E 404/16/69a. For a similar advance from the Exchequer in expectation of border related payouts, see E 28/81, sub 15 July 29 Henry VI. BL MS Cotton Cleo. F IV, fo. 25; TNA, E 404/42/297; E 404/43/169.

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legal practice, but one that functioned with considerable efficacy in the war time conditions of the frontier region. The success of arbitrated settlements, private or communal, depended, of course, on the willingness of disputing parties to abide by the decisions of mediators and to observe the terms of their awards. Such harmony was not always achievable, especially in the atmosphere of near perpetual tension that characterised relations between the English and Scots in the border lands. On more than one occasion, the wardens’ failure to achieve amicable settlements may be traced directly to the ill will of individuals involved in the arbitration process. In 1352, for example, Thomas de Lucy suffered assault and imprisonment when he attempted to prosecute truce breakers in the English West March.80 In 1380, merchants in Newcastle and Hull refused outright to return to Henry Percy’s control a ship seized in truce time.81 Three years later, John of Gaunt similarly proved unable to lay his hands on a band of English truce breakers when they sought refuge in the wilds of the Cheviot Hills.82 For this reason, both English and Scottish border officials looked to their respective common law systems and, in England, the nascent courts of equity for assistance in enforcing indentures and decreets of award. In the marches, the treatment of recalcitrant parties was necessarily much complicated by the fact that incidents of cross border violence involved subjects of two sovereign realms. Surviving source materials suggest that the best that could be achieved in very complex disputes was compromise, though the wardens of both sides were adept at hastily patching together workable solutions, even in some of the most unpromising circumstances. In 1371, for example, a day of march convened to treat of breaches of the truce in the East March awarded £100 to the earl of Douglas in compensation for losses he had suffered when the English lord Hugh Dacre had plundered his lands. Dacre refused either to return the stolen goods or to pay up, and the warden, Henry Percy, was left to make good the debt. He subsequently sued Dacre in Chancery for the sum, securing from King Edward III an order of arrest, a penal bond from Dacre himself, and the return of his £100 from monies levied on Dacre’s estates in Northumberland and Lincolnshire.83 Less than a decade later, Thomas Musgrave was ordered to pay restitution to Douglas in the matter of an assault on the town of Roxburgh, on pain of the very heavy fine of 10,000 merks. When Musgrave defaulted on his obligation his sureties sued him; so, too, did one of the English wardens, John Neville of Raby, who had satisfied Musgrave’s debt from his own purse.84 The Scottish wardens likewise had occasion to look to

80 81

CCR, 1350–4, 202. CCR, 1369–74, 338; Rot. Scot., ii. 25–6; Chronicon Angliae, ab anno domini 1328 usque ad annum 1388, auctore quondam monachi Sancti Albani, ed. E.M. Thompson (RS, 1974), 267–8. 82 TNA, E 39/103/36; The Westminster Chronicle, ed. L.C. Hector and B. Harvey (Oxford, 1982), 42– 3. 83 CPR, 1369–74, 338; TNA, SC 1/40/188; CCR, 1369–74, 338. 84 TNA, SC 8/129/6058; Rot. Scot., ii. 6; TNA, C 81/474/2111. See also CPR, 1385–89, 412, which describes Henry Percy’s attempts to recover from a group of Northumberland men sums that, once again, he disbursed to various Scotsmen as a consequence of an indenture of award determined at a

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the laws of their own realm for support against debtors who refused to observe the terms of border awards. Clear evidence that they resorted to the same kind of devices as did Henry Percy and John Neville is frustratingly elusive for the medieval period. Nevertheless, like their English counterparts, Scottish wardens normally assumed full responsibility, by means of pledges, for the payment of reparation and compensation and in Scotland, as in England, failure to discharge these debts placed the wardens’ creditors at the mercy of the central courts. The warden-conservators who, throughout the fourteenth and fifteenth centuries, were largely responsible for working out the minutiae of border legal procedure were acutely conscious of the fragility of the arrangements that they made at the days of truce. They complained that their own readiness to step into the breach when parties reneged on their obligations put a strain on their personal fortunes, and that such efforts offered only temporary solutions to outstanding problems. In fact, it was at least in part owing to the arrears that the crown had failed to pay them in their capacity as wardens of the East and West Marches that Henry Percy earl of Northumberland and his son eventually rose in rebellion in 1403. Agreements to mediate and settle border disputes could really only function with the support of the wardens’ respective governments. Beginning in the fifteenth century, then, the texts of Anglo-Scottish truces made specific provision for the enforcement of indentures and decreets of award by permitting plaintiffs who failed to secure satisfactory results at days of march to pursue their causes before the chancellor of either realm, and ultimately to commence the process of outlawry against contumacious offenders.85 This innovation, incidentally, brought border legal practice into line with that of the courts of admiralty and chivalry which, like the border tribunals, dealt with causes that transcended national boundaries. If the success of arbitration depended heavily on the good will of the parties to a dispute, so, too, could it operate effectively only with the approval, the confidence, and the trust of the communities who made use of its procedures. Although it never replaced court based litigation, recourse to mediation in private disputes nevertheless increased dramatically in late medieval England, in large part because it promised the return of peace between disputants and, more important, a ‘restoration of harmony’ more generally within the social and political communities in which they lived.86 The promise of peacemaking within a fractious community was of equal concern in later medieval Scotland, where distinct legal customs closely associated mediation with the repair of social relations dislocated by feud. As scholars have shown, the juxtaposition of notions of lordship, kinship, and friendship characteristic of late medieval Scottish society may well have meant that feud was inimical to political order and day of march. For still other similar cases, see CPR, 1381–5, 137–8 and CPR, 1385–9, 473. For other debts assumed by Percy and Neville, see Neville, Violence, Custom and Law, 74. 85 Foedera, ed. Rymer, iv (iv). 148–9; TNA, E 39/92/39; Rot. Parl., v. 224–5, 29 Henry VI, cap. 2, discussed in Neville, Violence, Custom and Law, 140, 143. Similar appeals to the English Chancery in cases of private arbitration are discussed in Rowney, ‘Arbitration in Gentry Disputes’, 370. 86 Rowney, ‘Arbitration in Gentry Disputes’, 371; Powell, ‘Settlement of Disputes’, 35.

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stability, but there can be little doubt, either, that arbitration and mediation were central forces in creating and promoting what has been called a ‘milieu of peace’ within, and beyond, the feud.87 Successful arbitration was as highly valued in late medieval Scotland as it was in contemporary England, for it persuaded ‘local families who were rivals and enemies to live at peace’,88 and in so doing restored to the social and political community the benefits of peace. Edward III explicitly acknowleded the central importance of this concept when, in 1374, he commanded arbitrators to settle the ongoing quarrel between the Percy and Douglas families by seeking to re-establish ‘quiet and concord’ between them.89 Clauses in truce agreements calling for disputes to be settled ‘withowten fraude or gile’ reflected similar, if perhaps more pessimistic, views on the part of the wardens themselves.90 The establishment of a modus vivendi with enemies and rivals lay also at the heart of mediation at border law, but on a much amplified scale. Admittedly, it is not always possible to find clear evidence of genuine good will in surviving documents. The platitudinous verbiage that clutters so much of the diplomatic correspondence of the later medieval period takes up a good deal of parchment in the texts of truces and other Anglo-Scottish agreements, perhaps never more than in periods of acute tension between the realms. The decade after 1377, for example, saw an intensification of Scottish raiding into England, with the attack on Roxburgh, noted above, and a bloody invasion of the West March in 1380 led by William earl of Douglas. On this occasion Richard II’s government was able to restrain Henry Percy from retaliating in equally violent fashion only with some difficulty.91 In the midst of such enmity, the pious expressions of hope for a suspension of hostilities that both parties expressed in truces sealed at Berwick in 1380 and Billymire in 1386 ring as hollow to modern readers as they must have done to contemporaries.92 And yet, on other occasions the two sides were capable of demonstrating remarkable unanimity about the need to submit particularly contentious disputes to arbitration in order to defuse acute tension in the region. The most notorious of these was the quarrel, noted above, that flared up afresh in 1373 between Henry Percy and William earl of Douglas over the lands of Jedburgh. Lordship over the castle, constabulary and forest had been granted to Henry Percy II in 1334, though within a decade it was already under threat.93 The strategic importance of Jedburgh to the English crown was evident and the revenues it brought to the Percy family considerable, and in 1373 Henry Percy III still had little wish to relinquish his hold on the estates.

87 88 89 90 91 92 93

Wormald, Lords and Men, 128; Wormald, ‘Bloodfeud, Kindred and Government’, 78. Wormald, ‘Bloodfeud, Kindred and Government’, 76. Foedera, ed. Rymer, iii (ii). 20. Ibid., iii (ii), 182. Historia Anglicana, ed. Riley, i. 435–8. Rot. Scot, ii. 29–30, 38–9; Foedera, ed. Rymer, iii (iii). 205. Neville, Violence, Custom and Law, 55–6; R. Nicholson, Edward III and the Scots (Oxford, 1965), 170; J.M.W. Bean, The Estates of the Percy Family 1416–1537 (Oxford, 1958), 7; M. Penman, David II, 1329–71 (East Linton, 2004), 149.

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When, therefore, the Percy-Douglas feud reached a fevered pitch in the 1370s, both Edward III of England and Robert II of Scotland were compelled to take notice. They did so by committing the quarrel to formal arbitration, already a time tested method of dealing with border related quarrels. Commissions issued from the English Chancery in February, then again some weeks later, instructed three local noblemen to hear the arguments of both parties and, in consultation with Scottish mediators, to resolve the dispute.94 The discussions apparently achieved some workable compromise, for the Percy family retained formal title to the lands down to 1404. Other fruitful results of arbitration by local recognitors resulted in the formulation, in 1424, 1429, and 1449, of new measures for addressing acts of cross border crime and truce breaking.95 Recourse to arbitration was by no means a last resort on the part of English and Scottish litigants for solving the intractable problems associated with the march region. Ultimately, arbitration represented the manifestation, in the legal sphere, of a willingness on the part of border people to set aside the enmity characteristic of the feud, and to settle their differences by means other than violence. The realisation of peace, harmony, and accord that scholars have long acknowledged as the aims of arbitration is evident in a host of other aspects of frontier society: in the relative ease of communication across the border line that enabled trade in animals, goods, and grain to survive even the most intense periods of Anglo-Scottish hostility; in the more or less free movement of servants and labourers in search of employment from one kingdom to the other; and, perhaps most famously, in the vibrant balladry that celebrated the exploits of even the most hard won battles and the most criminous of border felons. Attempts to portray the border lands as ‘an expendable place’, and of only ‘marginal’ importance to the crowns of either realm96 fail utterly to appreciate the ways in which the culture of feud that so often drove a wedge between the English and Scottish inhabitants of the border region was just as liable to bring them together. Kings, wardens, conservators of the truce, and everyday people alike found in the ideology and the practices of formal arbitration an important means of achieving such unity, even in the midst of bitter warfare.

94

Rot. Scot., i. 957, 965; Foedera, ed. Rymer, iii (iii). 3–4, 20; TNA, E 403/447. Documents appointing the Scottish arbitrators have unfortunately not survived. 95 Foedera, ed. Rymer, iv (iv). 109–11, 148–9; v (ii). 10–11; TNA, E 39/92/39; Rot. Scot., ii. 337–41; Neville, Violence, Custom and Law, 115–16, 129–32. 96 See, for example, J. Gray, ‘Lawlessness on the Frontier: The Anglo-Scottish Borderlands in the Fourteenth to Sixteenth Century’, History and Anthropology 12 (2001), 401.

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3 Peacekeepers and Lawbreakers in Medieval Northumberland, c.1200–c.1500

HENRY SUMMERSON

This paper seeks to revisit the time-honoured assumption of the exceptional, even devoted, lawlessness of medieval Northumberland. Formidable difficulties hinder the work of scrutiny. The sources are rarely home-grown, mostly deriving from judicial visitations. Until the last decade of the thirteenth century these were primarily eyres, lengthy sessions which came at intervals of several years and entailed a wholesale review of the processes of law enforcement; after the 1290s eyres were mainly succeeded by gaol deliveries, clearances of gaols through trials of their inmates, usually conducted every one or two years. All were directed from Westminster and are recorded in the language of a centralised legal system. There are also chronological problems, inevitable in a paper covering some three hundred years, during which problems and solutions, attitudes and expectations, did not always remain the same. The basic argument of this paper is straightforward and can be simply expressed. It is not that there was no disorder or criminality in medieval Northumberland, but rather that throughout most of the county, for most if not all of the time, there was a general consensus that crime – which here means the offences that medieval lawyers defined as felonies and which entailed forfeiture of life and goods, primarily homicide and the theft of goods worth more than 12d. – represented an affront to social morality as well as a breach of the king’s peace. In aid of this claim a specifically Northumbrian voice can be cited from the fifteenth century, that of John Hardyng, who occupied his years of retirement, after serving first the Percys and then the Umfravilles, in compiling a lengthy history of England in mostly undistinguished verse, in which he took it on himself to advise Henry VI as to how the realm should be governed. Hardyng passionately wanted law and justice and he repeatedly called on Henry to provide them, sometimes in direct appeals, sometimes through illustrations of the virtues and shortcomings of earlier rulers. That many of the latter were fictitious, derived from Geoffrey of Monmouth, is irrelevant in this context. Thus Katellus ‘regned well and helde up lawe and right’, not least by hanging oppres-

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sors of the poor on trees. Sigebert, by contrast, came to grief, ‘for he chastised noght trespasours agayne the law’. The lords of the land, who had been ‘lente’ their authority by the king, were expected to act likewise, and were rebuked for protecting evildoers and warned not to take sides in disputes. Vengeance, to Hardyng, was not an adequate substitute for law, though he conceded that it was acceptable to ‘All wronges redresse with batayll corporall, Whare law myght nought have course iudiciall …’. There was, moreover, a moral dimension to the king’s exercise of physical force and punitive justice, one summed up by Hardyng in the word ‘dred’. And so he says of King Sisilius, whose weakness led to his barons running amok, that ‘They dred him nought, so was he meke of porte, Whiche was more vyce than vertu to reporte …’. But of King Maddan, by contrast, under whom ‘no man durste his neighbour oughte displese’, Hardyng writes that ‘So dred thay hym alle for his rightwysnesse, Kepyng his lawe and pese in sykyrnesse …’. ‘Dred’ is in fact a wholesome quality, not some sort of mindless terrorism but an essential component of the ethical basis of society. In this context it is hardly enough to say that law and peace were not upheld by formal institutions alone, for the institutions themselves were underpinned and permeated by religious values, in Northumberland as everywhere else. Killing and stealing were not just breaches of the peace which every king swore to maintain in his coronation oath, they were also mortal sins, violations of two of the Ten Commandments. When thieves stole horses and cattle from John Belasys of Ridley, in Haltwhistle parish, around the end of 1427, John’s response was to petition Bishop Thomas Langley of Durham to excommunicate the felons. Although he did not know who they were, he evidently hoped that spiritual sanctions might help him to recover his livestock. The result was a society in which authority was wielded from above, by God, first of all, then by the king as God’s representative, then by the lay and ecclesiastical magnates to whom, as Hardyng saw it, the king ‘lent’ his authority, and beneath them by the officials whom both king and magnates appointed to exercise that authority in their names. There were numerous lordships where powers of government of various kinds were in the hands of the king’s subjects. In 1293 twenty-six lords, or groups of lords, claimed the franchise of gallows, that is, the right to hang their manorial subjects, and a few of them claimed much more than that. The Umfravilles as lords of Redesdale, the archbishop of York in Hexhamshire, the king of Scots in Tynedale, the bishop of Durham in Bedlington and Norham, and the prior of Tynemouth in the vicinity of his house, all claimed the right to exclude the 

BL MS Lansdowne 204, fols. 33v (Katellus), 102v (Sigebert), 140 (authority ‘lente’), 78 (‘wronges redresse’), 24v–25 (Sisilius), 20 (Maddan). This paper is a revised version of a text originally delivered as the second annual Historic Hexham lecture on 29 April 2003, and since published as ‘Order, Disorder, and Criminal Activity in Medieval Northumberland’, in The Hexham Historian 14 (2004), 3–24. Unless otherwise stated, all unpublished documents are in The National Archives/Public Record Office, London.  Reg. Thomas Langley, Bishop of Durham, 1406–1437, iii, ed. R.L. Storey (Surtees Soc. 169, 1959), no. 697.

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king’s officials entirely and to hold all crown pleas in their own courts – some time before 1255 Archbishop Walter Gray is recorded as making careful provision for the hearing of crown pleas for what he described as the manor and soke of Hexham. When justices itinerant came to Newcastle, these most privileged lords expected to receive copies of the articles under which the eyre was to be conducted, which they then administered. It should be said, however, that the attitude of these great lords to royal authority never seems to have been as truculently defiant as that of their counterparts in the Welsh marches. The king’s messengers could expect to be able to deliver writs and summonses without being obliged to eat any that gave offence. In 1279 Gilbert de Umfraville, seventh earl of Angus was challenged to defend a number of alleged encroachments on crown prerogatives in Redesdale. He did so in person, maintaining his right to what he saw as his ancestral franchises, for instance that of delivering his own gaol, but disclaiming others – he denied that he had ever introduced the sheriff ’s tourn, and renounced the right to do so. In the fourteenth and fifteenth centuries the bailiffs of Redesdale and Tynemouth, at least, attended gaol deliveries held by royal justices. Perhaps they did so in case suspects from their lords’ liberties were convicted, for when that happened the condemned men were handed over to them for execution. In 1293 Roger the miller of Woodburn, who had fled to Harbottle after committing homicide and burglary at Birtley, was brought before the king’s justices at Newcastle. Condemned there to hang, he was surrendered to the bailiffs of the earl of Angus, on whose gallows he was to die and to whom his chattels were forfeited. But it is also possible that their presence indicates at least a partial readiness by these great lords to cooperate with royal authority in the task of law enforcement. Even if that were so, the effective removal of substantial portions of the county from the remit of the king’s government caused immense problems throughout the middle ages, and have also created difficulties for later historians, since the records of what were in effect parallel jurisdictions have largely disappeared. More can be said of the body of the county where the king’s writ did run. Here, law and order was overseen by the sheriff and the coroners. All the able-bodied men in the county were in principle at the sheriff ’s disposal, and were liable to turn out at his summons when required. But he is more usually encountered when holding inquests, both ad hoc and regular. Again the evidence is scanty, but it would appear that before about 1250 sheriff and coroners together held inquests, under the oath of whomever they chose to summon, as and when

    

Plac. de Quo Warranto, 585–605; The Priory of Hexham, ii, ed. J. Raine (Surtees Soc. 46, 1865), 101. See R.R. Davies, Lordship and Society in the March of Wales, 1282–1400 (Oxford, 1978), 1, 262–3, 271, and elsewhere. Three Early Assize Rolls for the County of Northumberland, ed. W. Page (Surtees Soc. 88 1890), 372–4. e.g. JUST 3/54/3, m. 3; JUST 3/54/22, m. 1d. JUST 1/653, m. 21.

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occasion required, until William Heron (sheriff from 1246 to 1256) adopted the practice of most of the rest of the country by introducing the six-monthly circuit known as the sheriff ’s tourn, going round the county to receive presentments of crimes and suspects from jurors summoned in advance. But the tourn never put down roots in Northumberland. In the south of England it was closely associated with the system known as frankpledge, under which adult males were formed into small groups responsible for each other’s good behaviour. Frankpledge was not found in regions of dispersed settlement like Northumberland, and in 1267 the county paid at least £40 for a royal charter abolishing the tourn. There are references to sheriffs’ tourns in fourteenth-century records, but the details show that these were ad hoc inquests of the kind held earlier, sometimes in January or February when the real tourn never took place, and sometimes within a few weeks of one another, instead of at the conventional six-monthly intervals. In 1338, for instance, there were tourns at Morpeth on 5 June and then on 17 August.10 All that seems to have survived from the mid-thirteenthcentury experiment was the due called head-money, inseparable elsewhere from the view of frankpledge – in the early fifteenth century ‘Hedepenes’ was still being collected twice every seven years, and in 1425, and again in 1444, the men of the county called for its abolition, ultimately successfully.11 By then the accusations which led to suspects appearing before royal justices had long come to be largely made before the four county coroners (far more than were later made before JPs). These were local landowners who could acquire many years’ experience in office – it seems to have been usual to act for terms of ten or fifteen years, and some served for even longer spells; William Rodom and Thomas of Whitley, both recorded as coroner in 1398, were still in post in 1419, and by then their colleagues included Nicholas Turpyn, who was still a coroner in 1440.12 They held sessions for the wards into which the county was divided, and by good fortune the record of one of them has survived, of the inquest held before William Hedwin for Tynedale ward on 17 January 1357. It took place at Newcastle (perhaps Hedwin was not prepared to venture into the west of the county in midwinter), and heard charges of theft against twentythree men, involving offences allegedly committed between 10 November 1348 and 23 November 1356. Apart from the general pardons which successive kings issued at irregular intervals, there was no limit of time to inhibit proceedings against suspected felons, and it was by no means rare for men and women to stand trial for offences allegedly committed ten or even fifteen years earlier. Probably that was inevitable, given the difficulties involved in getting suspects into court at all. The 1357 inquest is revealing on this point. John Calfhird

  10 11 12

RH ii, 19. Cal. Inq. Misc., no. 364. JUST 3/132, mm. 12d, 13d, 14. Rot. Parl., iv, 291. JUST 3/184, mm. 13–14d; JUST 3/54/7; JUST 3/211, mm. 28–28d.

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of Thockrington, charged with two thefts of cattle at Thockrington itself, was quickly arrested, to appear at the Newcastle gaol delivery of 13 March 1357, where he was acquitted. A year later, on 12 March 1358, Roger Thornbrond came into court, accused of stealing sixty sheep in October 1353, and despite the passage of time since his alleged offence he was convicted and hanged. And that appears to have been all – twenty-three named suspects, two court appearances, one conviction.13 The number of suspects appearing at gaol deliveries was usually low, throughout the country, though it was often larger than the records of court proceedings alone indicate. Surviving files of ancillary material show that there were invariably suspects who were either remanded to prison because preparations for their trials were incomplete, or (much more commonly) were released to pledges because they were charged with harbouring other suspects who had not yet been convicted, or even arrested. But when all allowances have been made, the fact remains that nowhere in medieval England was it easy to make arrests. In Northumberland, with its tracts of mountain and moorland, its extensive areas of dispersed settlement where pastoral farming predominated (as it increasingly did in the later middle ages, and especially after the Black Death of 1348/9), and the sanctuaries offered by the great liberties, it must have been harder than usual. In the thirteenth century arrests were greatly outnumbered by outlawries, whereby suspects were formally summoned to five consecutive sessions of the county court. and if they failed to appear declared outside the protection of the law, reduced to the status of hunted vermin and as such liable to be killed if they were caught. The outlaw was said to ‘bear the wolf ’s head’, and perhaps Geoffrey Wolvesheved, reported in 1279 to have fled to Gunnerton church and there abjured the realm, was such a man.14 William Page calculated that the justices at the Northumberland eyre of 1279, reviewing the previous decade’s law enforcement, heard of sixty-eight homicides, for which two killers were hanged, one abjured, and sixty-five were put in exigent, to be outlawed if they did not come to the peace and stand trial, while twenty thieves were hanged and fifteen abjured, compared with seventy-five who were put in exigent.15 The homicide rate, perhaps reflecting a relatively low population, was in fact low compared with other counties, with an average of less than seven killings per annum (in Devon around the same time there were about thirty-six per annum), and the ratio of hangings to exigents and abjurations was not out of the ordinary, suggesting that at this time the peace was being reasonably well kept in the county. *

13

J. Hodgson, ‘An Inquisition Taken at Newcastle upon Tyne in 1357, before William Hedwin, Coroner of Tyndale Ward’, Archaeologia Aeliana 3 (1844), 14–17; JUST 3/141A, mm. 45, 46d. 14 Three Early Assize Rolls, 344 15 Ibid., xix.

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The crown’s principal agents of law enforcement in the localities were officers known as serjeants. They are found in Northumberland in the twelfth century, holding lands in return for services which included making arrests and distraints.16 They can be seen in action at Corbridge, as recorded in 1256, where a man trying to sell stolen cattle was challenged by the king’s serjeants, who demanded that he find guarantors that he had come by the beasts honestly. The suspect fled to a church and abjured the realm – a near miss, it could be said, for the forces of law and order, and not necessarily an easy let-off for the fugitive.17 One man who abjured at Ulgham was so dejected by his fate that he hanged himself.18 And the abjuror who broke his oath sometimes suffered the fate prescribed for him, even in places where he might reasonably have hoped to be safe. In October 1316 one Robert de Luda was charged with homicide in London, but before he could stand trial he was found to have abjured the realm at Newcastle in the previous February, as the bailiffs and coroners of the town notified the Newgate justices. No further trial was necessary, and Robert went to the gallows forthwith.19 As time passed the serjeants seem to have evolved into coroners, but their place was taken by similar officials, the bailiffs sometimes recorded as making arrests in the county, men like ‘the king’s bailiffs of Tynedale ward’ from whom a suspect was allegedly rescued at Thockrington in June 1414.20 Serjeants and bailiffs were the principal link between the king’s government in Northumberland and the rural communities – the vills – on whom the main burden of day-to-day law enforcement fell. In counties where a system of frankpledge was maintained, that system went together with the watch, with frankpledge providing for the supervision of those who lived in a vill, the watch for that of people entering a vill from outside. But despite a few references to watches in the 1290s, it is hard to see that they were widely maintained in Northumberland.21 The county’s social structure, the small and non-nucleated settlements associated with a predominantly (though not exclusively) pastoral economy, was probably such as to make them largely redundant. Instead the vill’s principal weapon against law-breakers was the hue, the call to action and pursuit which was made by shouting and blowing horns when a suspect was detected, perhaps with the assistance of dogs – a servant of the lord of Warkworth was described in 1272 as pursuing thieves who had broken into a house in Walbottle with the help of one of his lord’s dogs called ‘trazur’, possibly a bloodhound.22 If a fugitive was caught by the hue he was often summarily executed, if, indeed, he had not already been killed while resisting arrest. A

16 17 18 19 20 21 22

R. Stewart-Brown, The Serjeants of the Peace in Medieval England and Wales (Manchester, 1936), 63–5. Three Early Assize Rolls, 77. JUST 1/651, m. 23. JUST 3/41/1, m. 2. JUST 3/199, m. 17. JUST 1/653, mm. 4, 30. Northumberland Pleas from the Curia Regis and Assize Rolls, 1198–1272, ed. A.H. Thompson (Newcastle upon Tyne Record Series ii, 1922 for 1921), no. 888

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means of drawing attention to crime and pursuit, the publicity inherent in the hue also made it a way of ensuring that the slaying of a fugitive suspect was not a mere lynching, but rather became a form of legalised self-help. In 1359 one Richard Hallyng, who had killed a man at Morpeth, was followed by some twenty-four men from vill to vill until he was run to ground at Molesdon, three or four miles to the west, where he continued to defend himself against his pursuers, before being finally killed by a blow to the head. When his killers stood trial a year later, the justices ruled them blameless, as having acted thus ‘for maintaining the law and preserving peace’.23 Following the hue required a lot by way of alertness, courage and willingness to leave home or work in order to join in the pursuit of potentially dangerous people, and it is hardly surprising that its demands were not always met. When William of Corbridge, a chaplain who had been imprisoned at Wark, escaped from custody and fled to Simonburn, his notoriety, malice and strength were said to have been such that nobody dared to arrest him.24 Nevertheless, although the frequency of killings in the course of arrests cannot be quantified, they appear to have been quite numerous, more so than in the south of England, and may help to explain the scarcity of convictions in court. Some, at least, of the killers and thieves who were detected in the act did not subsequently appear before the king’s justices because they had been summarily dispatched by those who chased and caught them. That cannot, however, be the sole explanation for the low conviction rate, which can be illustrated from the gaol delivery records. When Newcastle gaol was delivered on 16 March 1366 it contained sixteen prisoners.25 Three were hanged, the remaining thirteen went quit. On 12 August 1398 twenty-three suspects came before the justices.26 Two were hanged, and three men who had been dragged out of the town’s Carmelite church, in violation of their rights of sanctuary, were convicted before being returned to the church as the law required – no doubt they then abjured. Seven had pardons, so it is impossible to tell if they were guilty or not, and the remaining eleven were acquitted. On 27 August 1411 there were forty-six accused (the justices were only coming once a year now, whereas previously they had come twice in most years, so the numbers at their sessions were usually higher).27 Four were hanged, two had pardons, two went sine die on technicalities, and a man found to have killed in self-defence was remanded to gaol in expectation of a pardon. The remaining thirty-five were acquitted. On 9 September 1427 the number of hangings was exceptionally high, with seven out of the forty-two accused going to the gallows.28 Nonetheless thirty-five people were still acquitted or had their cases dismissed. And on 4 August 1440 there was only one hanging, out of twenty-two accused – the 23 24 25 26 27 28

JUST JUST JUST JUST JUST JUST

3/145, 1/657, 3/155, 3/184, 3/191, 3/199,

m. 8. m. 10d. mm. 10–10d. mm. 13–15. mm. 51–52 mm. 17–17d, 16.

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number was low partly because three suspects had earlier broken out of gaol.29 A prosecution had a slightly better chance of success when it was brought privately, by an appeal of felony, but not sufficiently to alter significantly the overall statistics, which in these specimens show a conviction rate of under 20% at its highest, and more often under 10%. Corruption on the part of the trial jurors is one possible explanation for the low conviction rate, suspicion of the circumstances which a charge originated is another. Both can be illustrated from the 1293 Northumberland eyre. William Geronel was in fact hanged for homicide, but only after it was discovered that one of the jurors, who was also William’s landlord, had endeavoured to persuade his fellows that the slain man had died of the flux, rather than from the blow which William struck him. And after Richard Wykok of Morpeth had been cleared of homicide, he caused the jurors to disclose that he had been indicted at the instance of one of the jurors at the coroner’s inquest into his supposed victim’s death, because of what was described as ‘old hatred between them’.30 More generally, reluctance to convict seems to reflect a widespread feeling that people should not be hanged unless there was complete certainty as to their guilt, a certainty which needed to be extended to their intentions.31 This especially applied to homicide. It is now accepted that although the medieval criminal law did not distinguish, in modern terms, between murder and manslaughter, jurors did in effect make the distinction, and that where they found killings to have been culpable but not perpetrated out of premeditated malice, they bent or invented facts so as to present deaths as inflicted in self-defence.32 Following such a verdict the slayer was remanded to prison in the expectation of a royal pardon. In theory he forfeited his chattels, but in reality may have done so only in part. In 1376 one Robert Coxlay was found to have killed Roger Strubby in self-defence and was duly sent back to gaol until he should obtain a pardon (something he is not in fact recorded as receiving), while forfeiting chattels valued by the jurors at 100s. The justices seem to have accepted this estimate, even though they had in front of them a list of those chattels which assessed them at £16.13s.4d.33 Such verdicts point to what was at least an intermittent clash of legal and social values, between those upheld by the king’s justices and those of the communities whose juries pronounced on the suspects who appeared in those justices’ courts. The communities undeniably wanted judicial sessions in Northumberland, whose MPs, along with those of Cumberland and Westmorland, petitioned parliament in 1382 for at least two a year, ‘to the great ease of these parts’.34 In 1411 Northumberland alone was prepared to make do with one visi29 30 31

JUST 3/211, mm. 28–28d. JUST 1/653, mm. 18d, 26r–d. For a recent discussion see J. Dunbabin, Captivity and Imprisonment in Medieval Europe, 1000–1300 (New York, 2002), 106–8. 32 T.A. Green, Verdict according to Conscience (Chicago, 1985), 28–64. 33 JUST 3/165A, m. 5d; JUST 3/165B, m. 175. 34 Rot. Parl., iii, 139.

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tation a year, but it still wanted that.35 Justices and county each wanted good order, but they did not necessarily see it in the same light. For the former it meant the king’s peace as constituted by strict legal process, but for the latter it seems to have meant above all the preservation of a potentially fragile social fabric, one which an over-rigid application of the common law might threaten almost as severely as acts of felony. In such a context peacemaking was as important as peacekeeping, and both might take precedence over the punishment of illdoing. There is record of occasions when neighbours intervened in local quarrels, if only because they sometimes failed, with disastrous results. Thus it was reported at the 1293 eyre how one Alexander son of Roger fell out with his wife Custance, and how he killed a widow named Alice who tried to settle their quarrel.36 An unusually revealing case was heard before gaol delivery justices at Newcastle in 1363, telling how at the previous assizes a dispute arose between two landowning gentlemen, Thomas of Ilderton and William of Rodom, during which Rodom threatened to draw his knife on Ilderton. Two more landowners, Robert of Tughall and Richard of Stanhope, resolved to try to settle their quarrel and arranged a ‘loveday’, a meeting intended to bring about a reconciliation, but after dinner Ilderton met Rodom in Castle gate and told him that because of threats made against him by two of Rodom’s friends, he was not now prepared to go ahead with the loveday. Those two friends, Thomas and Peter Graper, were close at hand, and a furious brawl ensued, ended only by the arrival of the sheriff’s men, who took Ilderton to the castle, and by the ringing of the town bell, which brought a crowd of townsmen to the scene. Nobody was killed, though with weapons being brandished it must have looked as if someone was going to be, and in the ordinary way the incident would not have come to the attention of the king’s justices. Its value lies in its illustrating in a single case a number of peacekeeping devices which are not often recorded – interventions by friends and neighbours and by local peacekeepers – but which were probably quite often deployed, as here, to prevent ill-feeling leading to violence or worse. That the quarrel between Ilderton and Rodom continued, so that in 1374 the king had to appoint commissioners to investigate an alleged assault on Ilderton at Rodom itself, also illustrates the difficulties sometimes faced by would-be peacemakers.37 There are signs, too, of a willingness by communities or individuals to soften the inflexibility of the law relating to theft – in theory a capital offence when the goods stolen were worth more than 12d. In 1345, and again in 1428, men were said to have recovered their goods from thieves, along with what was called ‘thefbote’ – compensation for theft.38 In the second case this came to 6s.8d., probably a good deal more than the value of the peas and beans which Robert 35 36 37 38

Ibid., 662. JUST 1/653, m. 17d. JUST 3/145, m. 28d; CPR 1374–1377, 58–9. JUST 3/145, m. 7; JUST 3/208, m. 20d.

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Loksmyth was said to have stolen in the first place. The thief who in 1371 stole twelve silver spoons from Brinkburn Priory had the spoons taken from him by his pursuers, who also relieved him of his doublet, valued at 5s., and turned him loose.39 The feelings behind such cases may often have been no more than a wish to avoid the trouble of having thieves arrested, and then perhaps of having to prosecute or give evidence against them. But people may also have been influenced by the church’s social teaching, which has been construed as heavily weighted in the later middle ages towards conciliatory and pacific ends. Churchmen might themselves become involved in peacemaking. The most famous feud of the fifteenth century in Northumberland, between the Manners and Heron families following the death of William Heron on 20 January 1428, was settled through more than three years of intensive negotiations by Priors Wessington of Durham and Barton of Tynemouth.40 It would be a mistake to deduce from such cases that the law had lost all its terrors amidst the pursuit of social harmony. John Hardyng was in earnest when he stressed the importance of ‘dred’, whose force was surely felt by the Newcastle merchant Roger Raw when he claimed sanctuary at Durham on 9 August 1502, three days after wounding Anthony Ray at Newcastle, for fear of undergoing what he called the rigour of the law if Anthony died.41 The habitual felon and the dangerous malefactor had every reason to fear for their necks. Such a one was surely William Hoggeson of Wooller, the only man convicted at the 1440 Newcastle gaol delivery, on no fewer than seven charges of theft committed between 4 July 1436 and 10 August 1439, during which he lifted in all ten horses and sixteen head of cattle. The fact that those charges had been made before three different coroners must also have worked against Hoggeson, suggesting that he was widely regarded as an evildoer.42 Yet when someone like Agnes Smyth, a widow of Mitford, came before the 1454 gaol delivery and was acquitted of having stolen 9 hens worth 13½d. and cloth worth 4d. in 1452, one may wonder whether she was ever in serious danger of following William Hoggeson to the gallows.43 It seems likely that for people like her, and any number of others charged with small-scale thefts of goods or livestock, arraignment and imprisonment (during which suspects were expected to live off their own property, perhaps supplemented by a little charity) constituted both punishment for past offences and a warning as to future conduct. * It is probably against this background, of the exploitation of the machinery of law enforcement for social purposes, that those cases where the alleged offence took place years before the suspect stood trial, are best understood, for instance 39 40

JUST 3/53/3, m. 1. See R.B. Dobson, Durham Priory, 1400–1450 (Cambridge, 1973), 197–202. More generally, see J. Bossy, Christianity in the West, 1400–1700 (Oxford, 1985), 57–75. 41 Sanctuarium Dunelmense et Sanctuarium Beverlacense, ed. J. Raine (Surtees Soc. 5, 1837), no. 80. 42 JUST 3/211, mm. 28, 28d. 43 JUST 3/213, m. 14.

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that of Thomas Benet, acquitted in 1396 of stealing a single cow ten years earlier.44 The procedure of outlawry still existed and could be used; in 1476, for example, four men charged before the JPs with robberies at Blenkinsopp and Bywell were outlawed, at the end of a process which had begun the previous year.45 But it was not deployed against the likes of Thomas Benet, despite the time it had apparently taken to bring him into court. His case, and many others like it, suggests that arrest followed by gaol delivery trial, if necessary by reference to offences allegedly committed long ago, was the preferred method of dealing with people who threatened to become intolerable in their communities. By such methods men and women could be temporarily taken out of circulation, and also given both an uncomfortable time and a nasty fright. If this interpretation is correct, then there was little the king’s justices could have done to counteract the social pressures implicit in the high acquittal rate. When Thomas Halle of Hartside was acquitted on three charges of cattle-stealing (all from the same man) in 1429, they may have shown what they thought when they ordered that Thomas be bailed to appear at the next gaol delivery because he was of ill fame – quare male fame.46 And in this and many other cases perhaps they also consoled themselves with the reflection that their sessions might have served to reassert the standards and values associated with centralised justice and government, even if these were often exploited by local interests for purposes different from those for which they were ostensibly intended. In the days of the eyre the justices may have had a better chance of intervening when communal values seemed to be being pushed too far, not just to transmute acts of felony but also to condone or conceal them, but even then they risked frustration. In 1293 it was recorded how Andrew of Whytwas had quarrelled with his son Richard at Langley, and how Richard stabbed his father to death. The killer fled, but subsequently returned to the house of one of his neighbours, where he drank with three of his friends, without anyone arresting him or raising the hue on him. He then departed, but was soon back again, this time to spend the night in the house of his nephew, who was not at home but who returned next day and discussed matters with Richard, again without making any effort to have him arrested. It seems reasonable to assume that in this case the sympathies of kinsmen and neighbours were with the killer rather than his victim, even though parricide was normally regarded as a heinous crime, breaking two of the Ten Commandments. The result was a display of local solidarity which to all outward appearances upheld a legally and morally indefensible case.47 Such conduct, like the acts of homicide and theft which sometimes prompted it, could have been encountered anywhere in medieval England. But there were elements in the county’s criminal record which were proper to Northumberland, and which can be linked to aspects of its particular economic and social struc44 45 46 47

JUST 3/183, m. 7. KB 9/343, no. 56. JUST 3/54/7, m. 11; JUST 3/208, m. 23d. JUST 1/653, m. 17.

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ture, and to its geographical position. The discussion of the county’s criminal activity which follows takes as its starting point the assumption that the killings and thefts referred to in the records actually took place, even though only too often nobody was convicted of them. This assumption in turn derives from the plausibility, as it appears, of the often humdrum offences themselves, and also from the operation of the system of inquests, held by coroners and sheriffs, which can be seen as lying behind proceedings at eyres and gaol deliveries. The workings of that system can surely be seen in a case from 1347, when one Robert son of Adam Collan became an approver – the medieval equivalent of queen’s evidence – and accused four men of acting with him in felonies which included stealing horses valued at £20. He had acknowledged his own part in criminal acts, and so his chances of survival depended entirely on his being able to convict his alleged associates, either through juries’ verdicts or by defeating them in duels. But when Robert came into court the sheriff, who had clearly been investigating the accusations, announced that ‘there is not any such in a state of nature as were appealed by the approver, nor was there on the day he made his appeal, and that Robert falsely and treacherously fabricated his appeal to prolong his life and not in the way of truth …’. Robert went to the gallows forthwith.48 The fact, too, that the coroners did not simply hand in the records of their inquests when they attended gaol deliveries, but submitted what were described as ‘kalendars’, lists of the suspects from their wards who were now being presented for trial, at the very least raises the possibility that further inquiries had been made since those initial inquests. The fact that so few of the suspects named before William Hedwin in 1357 came into court may have been partly due to the subsequent discovery that the evidence against some of them was thin. It is easy to believe that the extent of crime was often exaggerated, for instance when hundreds of sheep or scores of cattle were said to have been stolen, but it seems reasonable to argue that, by the time an accusation came to trial, steps had to been taken to confirm that something like it had indeed occurred. The available evidence suggests that the people who stood trial at gaol deliveries were mostly poor without necessarily being destitute. Northumberland in the late thirteenth century was some way from being an impoverished society. Pastoralism indeed predominated in its then mixed economy, but sheep and cattle were valuable commodities. There were plenty of very poor people about – in 1293 it was reported that a distribution of alms at Cambo had led to a crush in which twenty-one paupers were suffocated.49 The benefactor who endowed an annual dole at Newminster Abbey did not risk underestimating the number of poor people who might come to claim it, since he provided for 100 of them every St Katherine’s day (25 November), when each was to receive two oatcakes and two herrings.50 But when in the fifteenth century the law required 48 49 50

JUST 3/135, m. 3d. JUST 1/653, m. 17d. Chartularium Abbathiae de Novo Monasterio, ed. J.T. Fowler (Surtees Soc. 66, 1878), 108.

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that indictments should specify the ‘Estate, or Degree, or Mystery [craft]’ of the accused, the commonest status was that of yeoman.51 The forty-two suspects who came before the justices at Newcastle in 1427 were made up of two gentlemen, one labourer, four shepherds, a herdsman, a miller, a servant, a ‘thefe’ (he was acquitted, suggesting that the term meant only ‘of no fixed address’), and thirtyone yeomen. The latter did not constitute the lowest level in the social order, and their predominance here may point to the ownership of horses, invaluable for the removal of sheep and cattle – forty-nine of the sixty-one offences alleged against these men involved livestock, eighteen pigs, nineteen horses, 141 cattle and 347 sheep. These figures are typical of late medieval Northumbrian crime, in its range both of suspects and of offences. In 1366 sixteen men and women were charged with twenty-one offences. A woman was accused of two burglaries, a man of burgling a grange and stealing 100 geese by the River Till, as well as of lifting a mare at Kimmerston. All the rest involved cattle and horses. And where cattle and sheep were involved, it seems clear that they were especially targetted in the times of year when they were most easily accessible, after they had been brought down from their summer pastures into or near their owners’ villages, but before they weakened in late winter and early spring, and so became less capable of being driven over long distances. A sample of eight Newcastle gaol deliveries between 1338 and 1440 records a total of 152 acts of theft involving sheep and cattle.52 Eleven of these were said to have taken place between the beginning of February and the end of April, 21 between May and July, 54 between August and October, and 66 between November and January. The imbalance towards the second half of the year and the winter months is obvious and striking. The same gaol deliveries heard allegations of 73 thefts of horses, but these were stolen all the year round, doubtless reflecting their continuous accessibility. The number is unexpectedly high, suggesting that more horses were available to thieves in Northumberland than in Cumberland (where the thefts of 72 horses were reported at nineteen gaol deliveries during the same period).53 This may point to a less impoverished society east of the Pennines, but may also reflect the horse-breeding apparently engaged in by some Northumbrian landowners. Thirty-five foals are said to have been stolen from William Heron at Chipchase on 30 January 1353; the theft and its date are alike significant.54 Homicide and burglary likewise had no close season (though homicide was never in fact very common, with only eleven killings leading to arraignment at the eight gaol deliveries), and the same seems to have applied to highway robbery. Although it is not plentiful, the judicial records do provide some evidence for 51 52

I Henry V, c. 5 JUST 3/132, mm. 13–14; JUST 3/141A, mm. 46–47; JUST 3/145, mm. 22d–23d; JUST 3/165A, mm. 6–6d; JUST 3/184, mm. 13–15; JUST 3/191, mm. 51–52; JUST 3/199, mm. 17–17d, 16; JUST 3/211, mm. 28–28d. 53 Figures from H. Summerson, ‘Crime and Society in Medieval Cumberland’, Transactions of the Cumberland and Westmorland Antiquarian and Archaeological Society, 2nd ser., 82 (1982), 116. 54 JUST 3/141A, m. 46d.

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the movements of merchants on Northumbrian roads. On 5 December 1337, for instance, merchants from Penrith in Cumberland were said to have been robbed at Fourstones, as they moved along the Tyne valley to or from Newcastle, and on 13 October 1333 merchants coming from Scotland were similarly said to have been attacked at Wooler.55 Some places seem to have lent themselves to highway robbery. Late in 1314 a man was hanged on charges which included one that he had ‘held the pass at Rayscogh near Denwick [where the present-day A1 skirts Alnwick] and did various robberies to men passing through there’.56 Other such crimes represent responses to particular occasions, like the robbery reported in 1256 of two women as they returned from Mitford fair.57 There was, however, a further dimension to the pattern of crime in Northumberland, arising from the county’s impoverishment and militarisation following the outbreak in 1296 of well-nigh continuous war with Scotland. The hostilities themselves are not discussed here, only their effects in terms of criminal activity, and of their repercussions for an Anglo-Scottish society which had long been linked by close similarities in social structure, economy and language across a very permeable border. Even judicially that border could seem practically non-existent – in 1293 it was recorded how a man had been hanged at Wark in England for stealing cattle in Scotland.58 When a lay brother of Newminster committed homicide, his abbot got him out of the way by sending him across the border to Melrose, another Cistercian monastery.59 Numerous Scottish thieves and killers were recorded at the Northumberland eyres of 1256, 1279 and 1293, penetrating deep into the county. The band of four men reported around 1280 as having burgled a house in Simonburn included Alexander of Lothian, Arthur of Galloway and David of Clydesdale.60 English malefactors went the other way. In 1279 a jury upheld the complaint of Denise of Beckfeld that she had been abducted from Redesdale to Jedburgh in order to force her into marriage.61 The wars that began in 1296 made Englishmen ‘officially’ enemies of the Scots, but without eradicating the links that had existed earlier, including criminal ones; indeed, it added to the latter, by making cross-border contacts potentially treasonable. Nevertheless felons continued to move around. In 1347 William Calverd of Lothian suffered the penalties of treason because, as he himself admitted, he had come to England and taken service with Sir John Fishburn in the diocese of Durham, but in 1346 had returned to Scotland, only to come back later that year with David II’s army, ‘to burn and kill the king’s men …’.62 In 1362 a native Englishman named John Bell, a cleric from Birtley, was said to have withdrawn to Scotland and returned with Scottish confederates 55 56 57 58 59 60 61 62

JUST 3/132, m. 13; JUST 3/128, m. 7d. JUST 3/53/2, m. 7. Three Early Assize Rolls, 98. JUST 1/653, m. 3. JUST 1/653, m. 20. JUST1/649, m. 10. Three Early Assize Rolls, 369–72. JUST 3/135, m. 3.

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to Birtley, where he stole horses and burnt houses. He refused to submit to jury trial and was remanded to peine forte et dure, that is, loaded with heavy weights until he either changed his mind and pleaded or died.63 Attempts to keep Englishmen and Scots apart were futile. People went to and fro across the border, and so did sheep. In 1374 it was reported that throughout the northern counties flocks were being driven over the border at shearing time, coming back later without their fleeces.64 In 1338 a man was acquitted of offences which included selling a mare at Dunbar.65 If he was truly guiltless it can be safely assumed that others were fully implicated in commerce of this kind, and the same can perhaps be said of the ingenious deception alleged in 1392 against a Newcastle man, who was charged with taking over £100 in English money to Scotland, where he recast it as Scottish halfpennies and then brought it back to England; not the least interesting feature of this case is its suggestion that Scottish money was circulating in Northumberland.66 Newcastle men were also said to have traded in wool with the Scots, many of whom certainly settled in Northumberland. The shire’s account for an alien subsidy (a tax on foreigners) in 1440 lists 505 names – one Fleming, 504 Scots.67 No doubt there were in fact many more of the latter. It was possible to become naturalised as an Englishman by obtaining letters of denizenship, recording an oath of allegiance to the king and of obedience to the laws and customs of the realm, from the warden of the march.68 This, too, could generate criminal activity, judging by a case from 1440, when Christopher Clerke of Newcastle, ‘writer’, was charged with forging the warden’s seal attached to such a document, in order to make a Scotswoman ‘English during her whole life’.69 The people who obtained such letters may have remained suspect despite them, like Adam Doune, described as ‘formerly a Scot’, who was hanged for theft in 1404.70 The status of those who did not change allegiance could arouse uncertainty. Professor Neville has related in detail how in 1441 one Alexander Mason was convicted of having killed Lawrence Grey earlier in the year, and how, because it turned out that Lawrence was a Scot, sometimes living in England and sometimes in Scotland, the justices refrained from sentencing him, first sending him back to prison, and then releasing him on bail. Formally convicted in 1445, Alexander was nevertheless remanded to prison and finally pardoned in 1449.71 Lawrence’s only known encounter with crime had been his sudden death. But there were many, both English and Scots, who moved freely across the border for felonious ends. The fact that the sources for their activi-

63 64 65 66 67 68 69 70 71

JUST 3/145, m. 24. CPR 1374–1377, 53. JUST 3/132, m. 14. JUST 3/176, m. 23. E 179/158/41. Rotuli Scotiae, ii, ed. D. Macpherson et al. (Rec. Comm., 1819), 298–9. JUST 3/54/21, m. 1. JUST 3/191, m. 47. C.J. Neville, ‘Border Law in Late Medieval England’, Journal of Legal History 9 (1988), 345–7.

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ties are English means that those accused were normally themselves English, either by birth or naturalisation. There are about 100 cases in fourteenth- and fifteenth-century gaol delivery rolls in which such men were accused of working with Scots for evil ends, by harbouring them, or guiding them, or simply by cooperating with them. A good example is Thomas of Ledale, who came into court on 23 August 1390, charged with five offences, all but the last in 1385. On 17 October he met with John Hunter and other Scots, and together they killed a man at Featherstone and took his goods and chattels to the value of £100. On 22 November he and his confederates were at Gunnerton on the North Tyne, where they kidnapped John Nicholson and held him to ransom. The next day they were at Barington, east of Thockrington. Not only did they rob Robert of Blagdon of goods worth twenty marks (£13.6s.8d.), but as they withdrew they laid an ambush for their pursuers in which John of Hortwarton was captured – John, too, was held to ransom, and was also robbed of a horse and goods worth £5. Next day Thomas and his allies hit Thockrington itself, seizing Richard Walker along with horses and goods worth another £5. With their three prisoners and other spoils the bandits seem to have retreated over the border, but on 7 January following Thomas was back with another company of Scots, this time led by David Armstrong, and together they raided Fourstones, where they seized two Englishmen and carried them off for ransoming.72 * Although he only came to trial in 1390, it seems likely that Thomas of Ledale was a marked man in the eyes of the authorities long before then. Certainly when he finally came into court he received no mercy, but was convicted and sentenced to a traitor’s death, being dragged on a hurdle to the gallows and then hanged. His forfeited chattels included two horses, a necessary constituent of his mobility. The raids which he made with his Scottish confederates went strikingly deep into Northumberland. Dere Street was clearly important to such men. The North Tyne itself was probably blocked by the castles at Chipchase and Haughton, but the old Roman road seems to have been used many times by marauders on their way down to the Tyne. Another case heard in 1390 featured one Nicholas Caryhalghe, who with a group of Scots led by John Grame attacked Brokenheugh north of Haydon Bridge on 24 May 1386 and seized John Saghou. John lost goods worth £5, but his person was much more valuable, for his captors received £40 by way of ransom. Nicholas, too, went painfully to the gallows.73 Both Thomas of Ledale and Nicholas Caryhalghe were accused of acting ‘in warlike manner’. The description was particularly apt in the late 1380s, when England and Scotland were openly at war, and such raids undoubtedly proliferated at such times, not least because the wardens of the marches had no incentive to restrain them. It is not surprising to find cross-border banditry in the north 72 73

JUST 3/176, m. 21. JUST 3/176, m. 21.

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of the county, with acts of rapine recorded at places like Carham and Wooler, Lanton on the River Glen, and further east at Lucker, not far from Bamburgh. But with English assistance the Scots penetrated much further south, to most parts of Northumberland. They could follow the line of the A697 from Wooler, for instance to Tosson, west of Rothbury, where they took fifty sheep in January 1411.74 From there they could go east to Longframlington, where five oxen were lifted on 20 June 1442, and to Felton on the Coquet, where there was a kidnapping in March 1386.75 Further south they reached Cramlington, where a man was kidnapped in 1351, and even to Burradon, the scene of a robbery in March 1383.76 The centre of the county was also open to attack from further west, down the line of the A696. Scottish raiders took ten head of cattle at Catcherside near Kirkwhelpington in June 1394, kidnapped a man at Prestwick near Ponteland on the last day of 1397, and even carried out a kidnapping at Fawdon, near Gosforth, in May 1404.77 The South Tyne valley was distinctly vulnerable, so much so that in 1408 the prior of Hexham was said to be harbouring Scots, presumably in self defence, and the archbishop of York ordered his deprivation.78 The west end of the valley was particularly exposed, with several raids being recorded around Haltwhistle, but the Scots also went south of the river, in March 1386 penetrating as far as Cronkley, on what is now Derwent Reservoir.79 The evidence suggests that the entire county lay open to them, and did so, moreover, all the year round – the cases cited above show that the threat from the north was present at all seasons, even in the very dead of winter. The activities of Thomas of Ledale were typical in that respect, as in several others. The penalties of treason may have seemed worth risking in the light of the possible gains. Ransoms could raise large sums, with devastating results for those who had to pay them. Around 1390 John Castell and William Stapleton of Benwell (just three miles from Newcastle) petitioned for a licence under the great seal enabling them to beg, as the only way they could raise the fifty marks ransom they owed for their release from Scottish captivity – a large sum which they declared they did not have.80 Castell and Stapleton, captured in 1388, may have been the victims of war, but the £80 ransom for a man snatched in May 1409, probably at Gunnerton, certainly represented the profits of crime.81 The spoils taken in acts of robbery could also be significant. Sometimes they were sheep, like the 140 driven over the border from Branxton in July 1396, or the 280 taken at Heatherslaw, near Ford, in May 1426.82 But more often the largescale thefts involved cattle and horses, fewer in number but worth more indi-

74 75 76 77 78 79 80 81 82

JUST 3/191, m. 51d. JUST 3/211, m. 32d; JUST 3/176, m. 20d. JUST 3/141A, mm. 45d, 47d; JUST 3/169, m. 34d. JUST 3/183, m. 17; JUST 3/191, m. 45; JUST 3/191, m. 48. The Priory of Hexham, i, ed. J. Raine (Surtees Soc. 44, 1864), appendix xciii–iv. JUST 3/176, m. 21d. SC 8/304, no. 15167. JUST 3/191, m. 51d. JUST 3/184, m. 14; JUST 3/208, m. 35d.

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vidually, and also capable of being driven much faster. Hence thefts in which Englishmen and Scots were said to have cooperated like that of twenty cattle worth £12 from Felton in January 1431, or twenty oxen and cows worth ten marks from Wyden near Haltwhistle in August 1427, or sixteen beasts worth 106s.8d. from Chesterwood, north of Haydon Bridge, in November 1419.83 These last two cases underline the vulnerability of the South Tyne, especially in its western reaches. It was not only Dere Street that facilitated such attacks. The exposure of the south-west of the county was intimately linked to the existence of the great liberties on the north side of the Tyne – Hexham, Tynedale and Redesdale – where the king’s writ did not run and his officers had no authority. In 1341 what was effectively a mutual extradition treaty was negotiated between the bishopric of Durham, which was no less independent, and the counties around it, but the Northumberland liberties posed a far more intractable problem.84 It seems to have been an old one. The liberty of Redesdale had originated – ironically, it may be thought – in a grant by Henry I to the first Robert de Umfraville, who was to hold his lordship by the service of suppressing thieves there.85 No later than 1267 it was seen as a haunt of outlaws, when Gilbert de Umfraville, pursuing a claim to the manor of Fawdon, was alleged to have sent there ‘about a hundred of the king’s enemies, and some of them outlaws, from the valley of Redesdale …’.86 There and elsewhere the passage of time brought no improvement, and in 1410 one Robert de Hodle, charged with cooperating with Scots in robbery at Bingfield and elsewhere, was discharged sine die after pleading that ‘the place of which the felony is alleged is outside the county of Northumberland and in the liberty of Hexham …’.87 It is hardly surprising that in 1414 the men of the county should have complained bitterly to parliament of the felonious habits of the men of the liberties, of the shelter and support they gave to Scottish malefactors, and of the disorder they perpetrated, which was such that the sheriff did not dare to take action against them. They asked that steps be taken to outlaw offenders, and for firm measures against officials who failed to deal with them, and repeated the latter call in 1421.88 But to no avail. The king’s response was half-hearted at best, and to outward appearances matters only became worse, as the men of the liberties built up a grim reputation for violence. In 1441 they brought havoc and fear to Ripon and Boroughbridge in Yorkshire, and early in the following century the prior of Tynemouth was said to have deployed ‘a great number of the inhabitants of Tynedale and Redesdale’ in a quarrel with the men of Newcastle.89 It can have been little consolation for their English neighbours that such men sometimes went north as well as south

83 84 85 86 87 88 89

JUST 3/208, m. 26; JUST 3/199, m. 17d; JUST 3/199, m. 17. CCR 1341–1343, 353–4. Book of Fees, i, 201. Northumberland Pleas, ed. Thompson, no. 776 JUST 3/53/4, m. 1. Rot. Parl., iv, 21–2, 143. Northumberland County History, iii, 44–5; STAC 2/20/2.

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– in 1475 the Scottish king James III complained of the activities of the men of Redesdale and Tynedale in his realm.90 Crime furthered the impoverishment of Northumberland inflicted by war, an impoverishment which itself influenced the forms that crime took, or did not take. It is noteworthy that there are few recorded robberies of churches, though these were common elsewhere, and it must be assumed that they seldom contained much for thieves to take. Significantly, an exception comes from Newcastle, arguably the safest place in the county, where a missal, chalice, vestments, copes and other fittings, all worth £8.6s.8d., were allegedly stolen from the Virgin’s altar in All Saints church. The suspect in this case was a chaplain, who was acquitted.91 Presumably for the same reason that robberies of churches were rare, there are few cases involving the footloose clerics, often only in minor orders, whose misdeeds in more prosperous counties did so much to lower respect for the clergy. When criminous clerks are recorded, they often turn out to have been either outsiders, like the two men from York convicted in 1443 of thefts which included a quantity of harpstrings, or servants.92 Thus the man convicted of stealing the chalice from Morpeth castle chapel in 1380 was the servant of Sir Matthew Redman, one of the march wardens, while William Medcalfe, convicted in 1419 of stealing a horse and its saddle, turned out to be Bishop Langley’s trumpeter.93 * It might easily appear that war and crime were the only activities which flourished in late medieval Northumberland, an impression conveyed with alarming force by the sentence of excommunication which Bishop Richard Fox fulminated against the thieves of Tynedale and Redesdale in 1498. This certainly suggests that here, at least, society was in a state of complete moral collapse, with its inhabitants given to evil deeds in which they openly rejoiced, and bringing up their children to a life of banditry because they did not think theft and rapine to be crimes. The leading men of the liberties colluded in this deplorable state of affairs, while the clergy, not all of whom were in fact ordained, and who were loose-living when not actually excommunicated, performed a sordidly incompetent ministry. Of course, allowances have to be made here for rhetoric, and in fact there are other ways of looking at the situation. In view of its context, one might have expected Fox’s denunciation to have had no effect, but in fact fourteen men, all bearing recognisable border surnames like Charlton, Milburn, Robson and Dod, submitted and received absolution, and they may not have

90 91 92 93

Calendar of Documents relating to Scotland, iv, ed. J. Bain (1888), Appendix no. 24. JUST 3/165, m. 37. JUST 3/53/6, m. 1. JUST 3/165, m. 37; Register of Thomas Langley, Bishop of Durham, 1406–1437, v, ed. R.L. Storey (Surtees Soc. 177, 1966), no. 1422.

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been alone in so doing. The men of the liberties were not as impervious to spiritual sanctions as Fox believed.94 It is clear, moreover, that into the 1450s, and probably later (a break in the records prevents certainty), not only did courts and inquests go on being held, but the geographical range covered by the resulting gaol delivery sessions did not contract. Thus the justices in 1366 heard allegations relating to such places as Etal, Wooller and Downham in the far north of the county, Chevington, north of Morpeth, in its centre, and from the west and south-west at Kirkharle, not far from Belsay, Netherton, north-east of Harbottle, Halton, near Corbridge, and Shotley, just north of Consett. This pattern was maintained in 1411, when the offences alleged were equally widely distributed, from Kilham, Lowick and Etal in the north, to Fairhough out in the west, via Blagdon, Stanton and Swarland in the centre, then on to Ovington, Blanchland and Harlow, on or near the Tyne, Throckley, a few miles west of Newcastle, and Woodhorn, Lynemouth and Belford in the east. The 1440 gaol delivery heard fewer cases, but its remit still extended to Etal, Crookham and Humbleton in the north, to Shotton out in the north-west, to Tritlington near Morpeth, to Callerton just outside Gosforth, to Swinburn on the North Tyne, and to Whitchester and Hedley on the Wall, respectively north and south of the South Tyne. In the 1450s, too, there were indictments before the coroners at Horton in Glendale in the far north west, Chillingham near Wooller, Newbiggin-by-the-Sea, Kirkharle in the west, Mitford, near Morpeth, and Ogle, near Belsay. Convictions remained scarce, but the mechanisms of law enforcement had made no surrender of ground. The lordship of Bamburgh, protected by one of the county’s mightiest castles, was doubtless exceptional in many respects. But it is at least interesting that between 1444 and 1448 its court was regularly held, with presentments of affrays and complaints made against neighbours. Arbitrators were appointed to resolve disputes, people at odds were licensed to settle their differences, and the court roll contains no reference to Scottish raids at all.95 Overall, the evidence suggest that though public order came under great strain in medieval Northumberland, it did not collapse, a qualified achievement, at least, which the county owed to the resilience of a multi-faceted system, drawing on elements formal and informal, lay and ecclesiastical, all supporting one another. Thus an inquest held in 1449 at Bedlington, a Durham liberty, which accused Sir Robert Ogle the younger (his father was constable of Norham, and as such the wielder of considerable regional power), his brother and his retinue of carrying off livestock and goods from Cambois and East Sleekburn, was followed up two years later by further charges, including homicide, which were made against Ogle and others before royal justices at Newcastle. Nobody was convicted, but it seems reasonable to assume that a point had been made.96 It 94

Depositions and Other Ecclesiastical Proceedings from the Courts of Durham, ed. J. Raine (Surtees Soc. 21, 1845), 37–41, 42–3. 95 SC 2/195/110. 96 J. Raine, The History and Antiquities of North Durham (1852), 372 note ‘r’; JUST 3/211, m. 36.

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would be wrong to overstate the value of that point. The county’s achievement, such as it was, was above all one of perseverance and survival. It would be easy to celebrate the peaceful outcome of the Manners-Heron feud, while overlooking the violence that preceded its settlement. There were brutal men at large in medieval Northumberland, and they did not always, or even often, receive their just deserts. John son of John of Glanton, said to have burgled Roger Bonde’s house at Fawdon, and to have tormented Roger’s wife by putting her on a ‘hot griddle’ over the fire, never even had to stand trial, Edward III having pardoned him in return for services in Scotland.97 And it is hard to know what to make of a man like John Maughan of Drokenheugh, so determined in 1434 not to plead to a charge of theft that he bit off his own tongue.98 Yet even a limited success is better than none at all, and even in the liberties there were attempts to avoid a collapse into total anarchy. Their lords appointed lieutenants if they did not reside there themselves. In 1438 Walter Tailboys, a year after he had inherited Redesdale on the death of Sir Robert Umfraville, named Roger Woodrington ‘his lieutenaunt in Redesdale and constable of his castle of Herbotell in the county of Northumberland as wele for werr as for pece, abiding and dwelling in his propre person with his meny and houshold within the dungeon of the said castell …’.99 By the end of the century such officials were answering to the crown as well – hence the deed of 1490 whereby John Heron of Harbottle, on taking up office as bailiff of Redesdale, bound himself ‘before the king in chancery under a penalty of £500 to execute the duties of his office in capturing felons and evil-doers and bringing them to justice, and to allow no conventicles or privy meetings between English and Scots on the Marches or elsewhere in the liberty’.100 It is not only the sinister aspects of the county’s past which remain to this day inscribed on the landscape of Northumberland. If Morpeth – ‘murder path’ – commemorates some ancient crime, then Wreighill and Wreighburn, marking places where felons were respectively hanged and drowned, and Gallow Hill near Corbridge, recorded as early as 1290, also mark society’s response to criminal acts.101 An imperfect one, no doubt, but in circumstances so difficult surely one that merits some respect.

97 98 99 100 101

JUST 3/135, m. 18. JUST 3/208, m. 31d. NDD, 222. Calendar of Documents relating to Scotland, iv, no. 1556 Details from A. Mawer, The Place-names of Northumberland and Durham (Cambridge, 1920).

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4 War, Lordship, and Community in the Liberty of Norhamshire

M.L. HOLFORD

The liberty of Norhamshire, on the Scottish border, was only one of the socalled ‘royal liberties’ of north-eastern England where, in the middle ages, the king’s writ did not run. Together with Bedlingtonshire, around ten miles north of Newcastle, it was part of the liberty of Durham, the main body of which extended, as contemporaries put it, between the rivers Tyne and Tees, encompassing pre-1974 County Durham. The other royal liberties of Tynedale and Hexhamshire collectively occupied a wide swathe of western and southern Northumberland; contiguous with these was the highly privileged franchise of Redesdale. In much of the region direct royal authority was largely excluded, and government was in ‘private’ hands. This essay is part of a broader project which has investigated the changing impact of these liberties on local society over the thirteenth and fourteenth centuries, with a particular focus on the very different ways in which the liberties were re-shaped by the pressures of Anglo-Scottish war from 1296. My focus here is on the impact of these same pressures in Norhamshire in the period before c.1350. In common with the other north-eastern liberties, Norhamshire had to come to terms with the crown’s need for a co-ordinated military response to the Scottish threat, and with the demands of a growing ‘war state’ for manpower and resources. But the impact of war, and the social and political changes it brought, was particularly marked in Norhamshire simply by virtue of its posi

I would like to thank Andy King, Christian Liddy, and Keith Stringer for their comments on earlier drafts.  Contemporaries referred to the liberty as ‘the liberty of Norham’ or ‘Norhamshire’. Confusingly, Norhamshire was also the name of a sub-division of the liberty (the other was Islandshire). Throughout I use Norhamshire to refer to the liberty as a whole, unless specified otherwise.  M.L. Holford and K.J. Stringer, Border Liberties and Loyalties: North-East England, 1200–1400 (forthcoming, Edinburgh University Press).  R.W. Kaeuper, War, Justice, and Public Order: England and France in the Later Middle Ages (Oxford, 1988); J.R. Maddicott, The English Peasantry and the Demands of the Crown, 1294–1341, Past and Present Supplement 1 (Oxford, 1975).

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tion on the Scottish border. The liberty occupied a site of considerable military and political importance, all the more so because of the castle at Norham, which since the twelfth century had been one of the most impressive fortifications on the border. During the extended period of peace between England and Scotland in 1217– 1296 the liberty was very rarely subject to royal interference, and the crown exercised control only during vacancies of the see of Durham. Peace diminished the military and political importance of the liberty and its castle. During the Anglo-Scottish tensions of 1258 Bishop Walter Kirkham (1249–60) allowed the castle to be occupied by the sheriff of Northumberland, but this was an isolated incident. Likewise, only rarely did the liberty’s position on the Scottish border mean that its inhabitants received orders directly from the crown. In the thirteenth century the social and political life of the liberty was shaped by the lordship and administration of the bishops of Durham. The liberty supported a substantial freeholding community. The bulk of its estates were in the hands of local families who had adopted toponymic surnames – Orde, Beal, Haggerston, Goswick, Cheswick, Scremerston, Twizel, Cornhill, Heaton. Most of these estates were held by free tenures, and their rents in the early thirteenth century suggest that the values of many were reasonably substantial. Orde, for example, was held for twenty marks a year; Twizel and Duddo for twenty marks; and Cornhill for eighteen marks. Similar values are suggested by early fourteenth-century evidence: Murton, worth £10 a year; Tillmouth, worth £16 in time of peace; Twizel, Duddo, and Grindon, worth £26.6s. in time of peace. Some of the liberty’s freeholders were thus on the margins of knighthood: Sir William Heaton occurs in the 1220s and 1230s,10 and Sir William Scremerston, Sir Gilbert Beal, and Sir Patrick Goswick in 1248.11 By the end of the thirteenth century, though, there were only two knightly families whose interests were concentrated in the liberty: the Grays, who had acquired the manor of Heaton, and the Riddells of Tillmouth. The Grays of Heaton also had interests in Berwickshire, and the liberty witnessed a certain amount of cross-border contacts in the thirteenth century.12 There were also important links with neighbouring areas south of the liberty,     

10 11

12

P. Dixon and P. Marshall, ‘The Great Tower in the Twelfth Century: The Case of Norham Castle’, Archaeological Journal 150 (1994 for 1993), 410–32. CR 1256–59, 302; CPR 1247–58, 621. CDS, i, no. 1749 and pp. 559–60. Liber feodorum: The Book of Fees, commonly called the Testa de Nevill, ed. H.C. Maxwell-Lyte et al., 3 vols. (London, 1920–31), i, 26–8. TNA, C 143/64/17; TNA, DURH 3/2, fo. 4v–5r; and for similarly considerable values later in the fourteenth century, ibid., fos. 71v (the vill of Orde worth £20 beyond the rent of 20 marks), 87v– 88v. Feodarium prioratus Dunelmensis, ed. W. Greenwell (Surtees Society 58, 1872 for 1871), 223; J. Raine, The History and Antiquities of North Durham (London, 1852), appendix, no. DCCLXIV. CDS, i, no. 1749 and p. 559; C.H. Hunter Blair, ‘Baronys and Knights of Northumberland, A.D. 1166–1266’, Archaeologia Aeliana, 4th ser., 30 (1952), 1–56 (32–33); also Raine, North Durham, appendix, nos. DCLXXXIV, DCCII. See for example Raine, North Durham, appendix, nos. CCCLXV, CCCLXVI, CCCLXXXVI.

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notably the barony of Muschamp or Wooler, which the liberty adjoined, and with which it was interconnected in places. Most of the barony was held of the crown, but Ross was held of the bishops of Durham, and was considered to be – with small exceptions – within Norhamshire. Nevertheless its association with the barony meant that it might come under the purview of the royal escheator.13 The barony also included Lowick, Barmoor, Bowsden, and Holburn, which – confusingly – were part of the parish of Holy Island, but did not come under the secular jurisdiction of Norhamshire.14 Barony and liberty were also linked socially – grants relating to Holburn and Bowsden, for example, drew witnesses from both jurisdictions.15 Early in the thirteenth century the Haggerstons acquired land in Heatherslaw (in Ford) by marriage, and at the end of the century a Haggerston married into a family from Bowsden.16 To a significant extent the administration of Norhamshire was self-contained and distinct from that of Durham itself.17 This was in contrast to Bedlingtonshire, which was more closely linked to Durham – inquisitions and pleas were often taken by officers of Durham and Sadberge, and heard at Durham, and episcopal accounts and surveys included it with the main body of the liberty.18 Norhamshire, in contrast, was an administrative unit, a ‘comitatus’, in its own right, with its own sheriff, who also acted as escheator and usually as constable of Norham castle. It had its own coroner and its own liberty court (comitatus), broadly equivalent to the county court elsewhere in England. By at least the fourteenth century, it had its own exchequer and term-days for the payments of rents. Its civil and criminal courts also appear to have been largely self-contained: in the fourteenth century, it was said to be customary that the people of Norhamshire should not have to leave their ‘county’ to attend an eyre in Durham.19 There were, nevertheless, significant tenurial, social, and administrative links with the liberty south of the Tyne. Lands in Norhamshire were held of Kepier hospital and Durham priory, in addition to the bishop himself.20 At the beginning of the thirteenth century, Roger Daudry, a significant figure south of the Tyne, also held a moiety of the Norhamshire estates of Allerdean, Felkington, and

13 14 15 16 17

18

19 20

CDS, i, no. 1967; CIPM, ii, no. 823; NCH, i, 405. It was valued at £31.5s.2d. in 1254, and £10 in 1292. R. Lomas, ‘St. Cuthbert and the Border, c.1080–c.1300’, in C.D. Liddy and R.H. Britnell (eds.), North-East England in the Later Middle Ages (Woodbridge, 2005), 13–28 (16, 21). Raine, North Durham, appendix, nos. DCLXII, DCCLXXVI, DCCLXXVIII. NDD, 93–4; Raine, North Durham, pedigree facing 224 and app. DCLXXXII. North Durham was thus analogous to the wapentake of Sadberge, incorporated into the liberty ‘between Tyne and Tees’ in the thirteenth century, but retaining a distinctive administrative structure: see C.M. Fraser and K. Emsley, ‘Durham and the Wapentake of Sadberge’, Transactions of the Architectural and Archaeological Society of Durham and Northumberland, new ser., 2 (1970), 71–81. See for example TNA, DURH 3/2, fo. 19v, 48r; TNA, DURH 13/221, part 1, mm. 2, 3d; Bishop Hatfield’s Survey, ed. W. Greenwell (Surtees Society 32, 1857), 125–26; DCM, Loc. V. 32, m. 3d; RPD, iv, 284. But for exceptions see TNA, DURH 3/2, fos. 35v–36v, 38r, 58v. Northern Petitions Illustrative of Life in Berwick, Cumbria and Durham in the Fourteenth Century, ed. C.M. Fraser (Surtees Society 194, 1981), no. 169. TNA, DURH 3/2, fo. 27r; C 143/64/17.

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Ancroft.21 It was to Durham priory that Roger and his wife directed their charity, and men from south of the Tyne were the principal witnesses to their charters.22 An interest in these estates descended to the families of de la Ley and Dalden, both with lands around Sunderland, maintaining the connections between the different parts of the liberty.23 Furthermore, the bulk of Norham’s constables and sheriffs were episcopal servants whose interests lay in county Durham.24 John Romsey, constable around 1237, was steward of the liberty between Tyne and Tees, rector of Easington, and had probably moved with Bishop Richard Poor (1228–37) to Durham from Salisbury.25 Thomas Herrington, sheriff in 1261– 2, was probably the man who was later a justice between Tyne and Tees, and lord of Herrington, Houghall, and Harraton in county Durham.26 The late thirteenth-century constables and sheriffs, John fitz Marmaduke and Walter Rothbury, were again both men with strong connections between Tyne and Tees.27 Pleas concerning the liberty could be even resolved in the bishop’s court at Durham.28 In the late thirteenth century, therefore, crown involvement in Norhamshire was minimal. The liberty was a largely self-contained jurisdiction, with significant social links to neighbouring areas of Scotland and Northumberland. There is, nevertheless, some justification in seeing Norhamshire as part of a ‘virtual state’ centred on the liberty between Tyne and Tees.29 The bishop’s officers governed the liberty; the local community pleaded in his courts and not the king’s, and used these courts for para-legal ceremonies such as the recitation of property agreements.30 It was also to the bishop that aids were granted by the local community.31 The outbreak of hostilities in 1296 changed much of this. Inevitably the 21 22 23 24

25 26

27

28 29 30 31

Book of Fees, i, 26. Raine, North Durham, appendix, nos. DCCXXXVI–VIII. ‘North Country Deeds’, in Miscellanea II (Surtees Society 127, 1916), 109–27 (114); DCM, 3.14. Spec.17. The best list of constables is in C.H. Hunter Blair, ‘Norham Castle’, History of the Berkwickshire Naturalists’ Club 28 (1935), pp. 61ff, from where references are drawn unless otherwise noted. See also C.H. Hunter Blair, ‘Sheriffs of Norham (The Sheriffs of Northumberland, Part III)’, Archaeologia Aeliana, 4th ser., 21 (1943), 69–89. English Episcopal Acta 24: Durham 1153–1195, ed. M.G. Snape (Oxford, 2002), p. l. R.B. Pugh, ‘Ministers’ Accounts of Norhamshire and Islandshire, 1261–2’, Northern History 11 (1975), 17–26. For Herrington see English Episcopal Acta 29: Durham 1241–83, ed. P.M. Hoskin (Oxford, 2005), note to no. 244. Pugh (18) suggests a different but less plausible identification. For fitz Marmaduke see H.S. Offler, ‘Murder on Framwellgate Bridge’, Archaeologia Aeliana, 5th ser., 16 (1988), 193–211 (197) and references there given. Rothbury was lord of Croxdale near Durham (DCM, 4.16.Spec.125; Records of Antony Bek, Bishop and Patriarch 1283–1311, ed. C.M. Fraser (Surtees Society 162, 1953), nos. 64, 35, 40, 78), although he also held land at Fenton, north of Wooler (Northumberland), as the result of his marriage to the widow of Alan Lascelles (NCH, xi, 334). His name, of course, may suggest Northumbrian origins. BL, MS Stowe 930, fo. 81v. Cf. R.R. Davies, ‘The Medieval State: The Tyranny of a Concept?’, Journal of Historical Sociology 16 (2003), 280–300 (294). Feodarium prioratus Dunelmensis, ed. Greenwell, 224. BL, MS Stowe 930, fo. 81v, appears to be an isolated instance of royal involvement in a liberty plea. CPR 1232–47, 190.

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liberty became caught up in the cross-currents of Anglo-Scottish politics, not least because one of its townships, West Upsettlington or Ladykirk, lay on the Scottish side of the Tweed.32 More broadly, however, war brought profound economic, social, and political changes, as the liberty was devastated by Scottish raiding, and as cross-border ties were curtailed.33 Administrative ties with Durham declined, and local men were appointed as constables and sheriffs. Episcopal service became newly attractive, but so too did service to the crown. The demands of war significantly increased the crown’s influence on and in the liberty; paradoxically, they also confirmed and even augmented some of the liberty’s privileges. * Because of the vital strategic significance of Norhamshire, and particularly of Norham castle, the crown inevitably had a strong interest in its control in time of war; and this concern became particularly acute as Scottish attacks on northern England intensified in the 1310s. From the beginning of the episcopate of Bishop Richard Kellawe (1311–16) Edward II exerted strong pressure on the government of the liberty; although, as we shall see, he did not always get his way.34 While the crown had control of the liberty in 1311, during a vacancy of the see of Durham, Edward may have appointed William Ridell of Tillmouth, a rising royal servant, as constable of Norham.35 After Kellawe’s consecration this required episcopal confirmation, and the king soon wrote to the bishop, asking that Ridell, his ‘dear bachelor’, be appointed as constable for life. The king’s man duly was appointed (albeit for an uncertain term) in June 1311.36 His subsequent tenure of the office is not fully clear: he was retained by the bishop in March 1312, and occurs again as constable in April and September 1312, but at some point fell out of Kellawe’s favour and was arrested by the bishop, prompting an aggrieved letter from the king.37 This was perhaps the result of an incident which soured relations between Edward and the bishop for several years. In August 1312, the bandit or shavaldor John Weardale was killed at Holy Island by a retainer of Kellawe.38 Unfortunately Weardale was also a servant of the king, who was already vexed at the bishop’s hostility towards the royal favourite Piers Gaveston. At the end of November Edward appointed justices, one of whom was William Ridell, to 32 33 34

35 36 37 38

See, for example, Rot. Parl., i, 463; CDS, iii, nos. 1022, 1035–6; RPD, iv, 171–3. On the extent of the damage caused by war, see R. Lomas, ‘The Impact of Border Warfare: The Scots and South Tweedside c.1290–c.1520’, SHR 75 (1996), 143–67. Much of the evidence for this pressure comes from copies of Edward II’s privy seal correspondence (printed in RPD, iv, 483–531). Unfortunately the dates were not copied, and it should be emphasized that the dates ascribed to letters here depend on internal evidence, and are sometimes conjectural. BL, MS Cotton Nero C. VIII, fo. 81v. RPD, i, 19–20, iv, 521. RPD, i, 173–4, 274–5; iv, 514. See generally A. King, ‘Bandits, Robbers and Schavaldours: War and Disorder in Northumberland in the Reign of Edward II’, TCE 9 (2003 for 2001), 115–30.

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inquire into the death.39 In the event, however, Weardale’s killer was taken to the bishop’s prison at Durham. The king insisted that he be kept until he faced royal justice – ‘if you wish your liberty to be kept safe’, he threatened Kellawe – but it is unclear if this ever took place: Edward later discovered that the retainer had been released from prison without trial.40 It was perhaps this affront that led the king – at least according to the chronicler at Durham priory – to attempt to have Kellawe transferred from the bishopric and to have his brother Patrick arrested. It took the gift of a thousand marks and a warhouse, before the battle of Bannockburn in June 1314, to purchase reconciliation;41 but nevertheless, the incident offers a dramatic illustration of the limitations of royal power in the liberty. Despite this acrimony, in May 1314 the needs of national defence persuaded Kellawe to loan Norham castle to the king for three years (in the event the castle was returned early in August).42 William Ridell was again appointed as constable while the castle was in royal hands; after its return to the bishop, he was replaced by Robert Clifford of Ellingham.43 As in 1311, Edward seems to have pressed for Ridell’s reappointment, apparently with some success.44 The castle was loaned again to the king in November 1315, and returned in May 1316.45 This loan, however – at the king’s ‘vehement request’ – followed several demands which Kellawe seems simply to have ignored, and Edward was clearly unable or unwilling to confiscate the castle.46 Kellawe insisted on an assurance that the grant would not fall to his future prejudice, and that the royal constable Henry Beaumont would not obtain supplies from the surrounding countryside.47 When the castle finally was loaned, the bishop excepted the lands appurtenant to it, and reserved the right to lodge in the castle not only the tenants of the liberty, but forty men-at-arms of his own.48 Kellawe’s successor, Bishop Lewis Beaumont (1317/18 – 1333),49 owed his election to the see to Edward II’s queen, Isabella. This did not necessarily mean that relations between king and bishop were smoother: Edward II roundly upbraided Beaumont in 1323 for his failure to defend Durham against the Scots.50 Nevertheless, royal control of the castle does seem to have become more 39 40 41 42 43 44 45 46 47 48 49 50

Historiae Dunelmensis Scriptores Tres, ed. J. Raine (Surtees Society 9, 1839), 94; Calendar of Chancery Warrants 1244–1326 (London, 1927), 385; RPD, i, 254; CPR 1307–13, 542. RPD, iv, 526, 497. Scriptores Tres, ed. Raine, 94. RPD, i, 547, 585–6; ii, 1012–13. RPD, i, 585–6, 598; BL, MS Cotton Nero C. VIII, fo. 159v. RPD, iv, 530; i, 588–9, 598–9. Ridell handed over the castle to the bishop on 14 August 1314, but was reappointed as constable on 16 August. RPD, ii, 1108–9, 788. RPD, iv, 506–7. For the damage which could be inflicted by English forces, see DCM, Reg. II, fos. 34v–35r; Norham Proctor’s Accounts, 1317–21, for 1319–20. RPD, iv, 487–9, 507–8, 510–1. The temporalities were restored on 4 May 1317, but Beaumont was not consecrated until 26 March 1318. CCR 1318–23, 697.

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marked during Beaumont’s episcopate. In September 1319, the king assumed some direct responsibility for its garrisoning: Adam de Cleseby and twentythree other hobelars of Norham castle were in the crown’s service.51 Around September 1322, the bishop, his brother Henry Beaumont, and the constable of Norham refused the king’s offer to garrison the castle at royal cost; but later in the same month the constable, Thomas Gray, agreed directly with the king to provide extra men for the defence of the March at the crown’s expense. Edward also wrote directly to Gray to encourage him in his defence of the castle.52 In 1323, 1325 and 1326 Beaumont was ordered by Edward II to fortify the castle, and Edward III lent him money for this purpose around 1332.53 The crown’s various attempts to secure some control of the castle and liberty only in part suggest that ‘the military facts of life paid little heed to “constitutional” proprieties’, or that ‘national security was no great respecter of franchise’.54 As we have seen, when the castle was placed under royal control, the liberty’s privileges were explicitly reserved, and control of the castle probably did not entail government of the liberty as a whole.55 If bishops acknowledged the importance of the ‘safety of the people of the March’ and ‘the defence of the king, his people, and his land’, the king in turn recognized the claims of the ‘church of St. Cuthbert’.56 And, as Kellawe’s episcopate in particular reveals, there could be real conflicts of interest between the crown’s wishes, and the bishop’s responsibilities to his tenants and church, conflicts in which the crown could not simply impose its will. Nevertheless, over the first half of the fourteenth century as a whole, royal influence in the liberty did significantly increase, especially over Norham castle. Writ after writ testifies to the crown’s treatment of the castle as simply one among a number of private and crown strongholds which the king hoped to control.57 The constable and sheriff of Norham could be seen as a royal minister as much as an episcopal one, who answered to the king’s writ as well as the bishop’s, and it could be said that the castle was kept ‘for the king’s benefit’ rather than the bishop’s.58 The liberty’s other privileges might not be affected: although in 1368 Edward III sent direct orders to the constable of ‘our castle’ of Norham, in 1340 he had ordered a prisoner captured at Tweedmouth to be returned to Norham, to avoid prejudice to the bishop’s liberty.59 But the crown’s 51 52 53 54 55

56 57 58 59

TNA, E 101/378/4, fo. 35v; CDS, iii, no. 668. CDS, iii, nos. 770, 772, 777; cf. TNA, C 47/22/10/39. See also CCR 1330–3, 367; and CDS, v, no. 3237; CPR 1321–4, 261. CCR 1318–23, 663; CPR 1324–7, 303; CCR 1323–7, 399, 476; CCR 1330–3, 498; Ancient Petitions Relating to Northumberland, ed. C.M. Fraser (Surtees Society 176, 1961), nos. 128–9. R.R. Davies, Lordship and Society in the March of Wales 1282–1400 (Oxford, 1978), p. 255. RPD, ii, 1108–9. The occasional separation of the roles of constable and sheriff in this period is suggested by RPD, i, 173–4, 251, 274–5: Walter Goswick seems to have been sheriff while William Ridell was constable in 1312. For these phrases see RPD, iv, 489; i, 547; ii, 1108; iv, 510. For example, Rot. Scot., i, 131, 150, 209, 381, 911, 920. Sir Thomas Gray: Scalacronica 1272–1363, ed. Andy King (Surtees Society 209, 2005), 83; and cf. ibid., xxxi, n. 60. CCR 1339–41, 383; Rot. Scot., i, 920.

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need for a co-ordinated military response could also have a wider impact on the liberty. The bishop of Durham could be commanded to array its inhabitants; the liberty could be ordered to provide victuals; and the men appointed by the crown as wardens of the march, or to keep the peace with Scotland, could be granted authority within the liberty, as happened in 1346 and 1362.60 It is true that in 1346 Thomas Hatfield, bishop of Durham (1345–81) was one of the wardens; but this only confirms the integration of Norhamshire (together with Durham itself) into the crown’s regional strategy.61 * As the careers of William Ridell and Thomas Gray suggest, royal influence in the liberty also grew as a result of the increasing ties of service between the crown and the liberty’s leading tenants. War had its opportunities as well as its costs, and inhabitants of the liberty were quick to see that many of these opportunities were to be found in royal service. They were probably all the more attractive because, as we have seen, at the beginning of the fourteenth century the liberty’s administration offered few openings for local men. Since Norhamshire was on the front line of Scottish attacks, it is not surprising that its men should have fought for the English from an early date, but it is significant that several campaigned under the auspices of the king, not the bishop. William Ridell, the later constable, is perhaps the outstanding example. He fought under Edward I in Scotland in 1301, and he is frequently documented in royal service in the 1300s, 1310s and later.62 As we have seen, it was the king, as much as the bishop, who gave him authority and power in Norhamshire. He probably owed his appointments as constable of Norham to royal pressure, and was a royal justice of oyer and terminer in the liberty in 1312. In 1323 he was ordered by the king to inquire into the ‘evildoers’ who had recently seized Norham castle.63 Ridell was a royal servant, who could be relied on to carry out the crown’s wishes in the liberty. Several other men from the liberty served under the crown from the 1310s onwards, men like Peter Orde, Robert Haggerston (probably, in fact, a father and son of the same name), Patrick Goswick, and Alexander Cheswick, or like Robert Gray of Cornhill, who died in 1343 ‘in the king’s service’.64 Another man who found that the most attractive opportunities lay outside the liberty was Robert Horncliff of Thornton. He had apparently begun to fight under the crown in the later 1310s; but his real coup was his involvement in the capture 60 61

Rot. Scot., i, 389, 669–70, 862; RPD, ii, 853–4. Rot. Scot., i, 670. For Hatfield’s later role on the marches, see for example CPR 1354–8, 347; C.H. Hunter Blair, ‘Wardens and Deputy Wardens of the Marches of England towards Scotland in Northumberland’, Archaeologia Aeliana, 4th ser., 28 (1950), 18–95 (45–48). 62 CCR 1296–1302, 469, 507–8; CPR 1292–1301, 611; CDS, v, nos. 2470, 2583, 2952, 3029, 3166, 3170, 3234, 3259; TNA, E 101/16/5; Gray, Scalacronica, ed. King, xxviii, n. 46; Northumberland Petitions, ed. Fraser, no. 142a. 63 CPR 1307–13, 542; CPR 1321–4, 318. 64 TNA, E 101/19/36, m. 4; E 101/20/17 m. 9d; CDS, iii, p. 394, and cf. p. 414; TNA, DURH 3/2, fo. 27v.

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of the rebel Gilbert Middleton, for which he was rewarded with an annuity of 40 marks. In the later 1320s he served as constable of Bamburgh, as sheriff of Northumberland, and as a frequent royal commissioner. By 1327 he was a knight, and in 1332 he headed the witnesses to an indenture between the sheriff of Norham and the steward of the prior of Durham. But it was service outside the liberty that was behind this eminent position within it.65 Robert Haggerston of Haggerston, again, was a king’s yeoman by 1345, tax commissioner in the 1350s, and constable of Bamburgh around 1357.66 These men were all, potentially, servants of the crown rather than the bishop; and they might turn directly to the king for patronage and favour, with potentially insidious effects on the liberty’s privileges. It was from Bishop Hatfield that Haggerston obtained licence to acquire lands held of the bishop in chief. But it was the king, not the bishop, from whom he obtained licence to crenellate his dwelling at Haggerston.67 * Finally, royal prerogative also challenged aspects of the liberty’s privileges. Bishop and crown occasionally came into conflict over their competing claims to lands in the liberty forfeited for treasonous adherence to the Scots. Usually such forfeits belonged to the crown, but the bishops of Durham claimed that within their liberties – where, after all, royal officers should not interfere – their ‘royal rights’ gave them title.68 War made these competing claims an important issue in the liberty’s fourteenth-century politics, because of the extent of cross-border landholding that had developed in the thirteenth century. Successive bishops were largely able to maintain their rights, but there was, again, a significant expansion of royal power in the liberty. Bishop Antony Bek (1283–1311)’s claim to dispose of forfeited lands in Norhamshire was not challenged by Edward I.69 The king did, however, expect to have the final say over the restoration of these lands to Scots returning to his allegiance, and addressed writs ordering restoration directly to the officials of the liberty, writs which despite some delay seem ultimately to have been effectual.70 This represented another increase in royal influence within the liberty; but more dramatic was the seizure of the manor of Heaton by Edward II while the see was vacant in 1311. Bek had taken the manor as a forfeit, but Edward granted it to one of his own servants, and although the grant was revoked by the Ordinances 65

66 67 68 69 70

C.H. Hunter Blair, ‘The Sheriffs of Northumberland’, Archaeologia Aeliana, 4th ser., 20 (1942), 11– 90 (44–5); DCM, 2.4.Pont.9; Northumberland Petitions, ed. Fraser, no. 120; TNA, SC 8/52/2605A–B. He is not known to have held any land outside the liberty. CPR 1343–5, 479; CFR 1347–56, 367, 415, 416; CFR 1356–69, 4, 13; NCH i. 126, note 3. TNA, DURH 3/30, m. 4d (1348); CPR 1343–5, 479 (1345). C.M. Fraser, ‘Prerogative and the Bishops of Durham 1267–1376’, EHR, 74 (1959), 467–76 (474– 5). This was in contrast to Edward’s treatment of Hart and Barnard Castle south of the Tyne: Fraser, ‘Prerogative’, 475. CCR 1302–7, 128–31; Northumberland Petitions, ed. Fraser, no. 19. DCM, Reg. II, fo. 96v implies that the original owners recovered possession.

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of October 1311, the crown attempted to retain control of the manor (regularly said to be ‘in Northumberland’). But by this stage Richard Kellawe had received the temporalities of the liberty, and the bishop made a vigorous defence of his claim: he resisted the crown’s officers, recovered the manor, and restored it to its original owners, the Gray family.71 Thereafter successive bishops regularly disposed of forfeited estates within the liberty. The crown, however, seems to have believed that it retained a permanent claim on such lands, and this meant that episcopal grants were always open to subsequent challenge. This was demonstrated by lands in Cornhill, forfeited by William Prendergast before 1328. Following a grant of Bishop Beaumont they descended to Edmund Deanham, from a family of Northumbrian lawyers and episcopal servants, and Deanham granted the lands to William Heron.72 William Prendergast’s son was able to recover the lands by an assize of mort d’ancestor in the bishop’s court at Norham. But Heron was not to be outdone. An anonymous petition was sent to Edward III around 1348, informing the king of his rights to the lands; as a result the lands were seized and Heron’s possession confirmed.73 Similarly, in 1370 an inquisition ex officio by the escheator of Northumberland found that lands in Berrington, Kyloe, Buckton, and Goswick, which the Manners family had acquired by a series of episcopal grants, were a forfeit of war and belonged to the king. Accordingly they were seized and granted to Alan de Buxhull, chamber knight of Edward III, and under-chamberlain of the royal household.74 Such assertions of royal power in the liberty were rare, and were driven by the crown’s officers and subjects, rather than by anything approaching a consistent royal policy. Nor were they permanently enduring: by 1357, Prendergast had regained possession, and at some later point, the Manners family was also apparently able to recover its lands, suggesting that episcopal rights of forfeiture were ultimately acknowledged.75 Nevertheless, the claims of royal prerogative allowed a significant extension of the crown’s authority in the liberty, whose impact should not be underestimated. As William Heron’s case makes clear, it enabled direct challenges to episcopal authority from the liberty’s own tenants. * To some extent, therefore, war meant that the liberty’s privileges and autonomy were challenged in the fourteenth century, both by direct royal intervention, and by the growth of ties of lordship and patronage, as the liberty’s inhabitants

71 72 73

RPD, i. 77–8; ii. 1170–1; TNA, E163/3/11; CPR 1307–13, p. 337; CFR 1307–19, p. 243. DCM, Reg. II, fos. 102v, 131r–v; NDD, 100. Northern Petitions, ed. Fraser, nos. 204–5; TNA, DURH 3/30, m. 2d (also in DCM, Reg. II, fo. 131r–v); CPR 1348–50, 208–9, 245. 74 Cal. Inq. Misc., iii, no. 754; CPR 1367–70, 447; C. Given-Wilson, The Royal Household and the King’s Affinity: Service, Politics, and Finance in England 1360–1413 (New Haven, 1986), 150. 75 CDS, iii, no. 1636; TNA, DURH 3/2, fo. 168v, where (in 1410) John Gray held 60 acres in Berrington of Robert Manners.

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became readier to enter royal service and to turn to the crown for patronage and assistance. This, however, is only half the story. War may have increased royal influence in the liberty, but it also increased the power and prominence of the bishops of Durham. Before around 1310, as we have seen, constables and sheriffs of Norham had often been episcopal familiares without strong links to Norhamshire. Under Bishop Bek such familiars – John fitz Marmaduke, Hugh Paunton, Roger Pichard – also seem to have received the most significant episopal patronage.76 After around 1310, in contrast, it was felt that the liberty was best served if substantial local men were appointed as constables and sheriffs – Sir William Ridell of Tillmouth in 1312, Walter Goswick of Islandshire and Berwick in 1312, 1314, 1315, and 1316; Sir Robert Coleville of Ancroft, Spindlestone and Budle, and Sir Robert Clifford of Murton and Ellingham in 1314; and, from the end of the decade until around 1327, Sir Thomas Gray of Heaton. William Ridell, it is true, may have been appointed under royal pressure, but he was also directly retained by Bishop Kellawe.77 Similarly, Robert Haggerston may have been a king’s yeoman, but he also seems to have been retained by Bishop Richard Bury (1333–45) to defend Norham castle.78 If war led to closer ties between the inhabitants of the liberty and the crown, it also led to closer ties between local society and the bishops of Durham. The very considerable resources of episcopal patronage, as much as those of royal service, came to offer significant opportunities for self-advancement. Lands forfeited by Scottish rebels in the liberty were an important part of this patronage. Sir Thomas Gray I (d.1344), as we have seen, owed the recovery of his family’s caput of Heaton to the favour of Bishop Kellawe, and to Kellawe’s tenacity in maintaining the privileges of the liberty. The chief prize in the liberty, however, was the office of constable and sheriff. It has rightly been said that, because of the dangers to which the castle and liberty might be exposed, this office ‘was no sinecure’.79 But it offered rewards which amply compensated for the risks involved. The constable was handsomely feed: in the thirteenth and early fourteenth centuries, he received 50 marks a year. In the fifteenth century, he received all the issues of the liberty in time of peace, and a further £200 in time of war; and a similar arrangement may already have operated in the fourteenth century.80 Furthermore, when constable and sheriff were the same man, as was usually the case, the concentration of political power in the office was remarkable. The sheriff, like his counterpart between Tyne and Tees, also acted 76

77 78 79 80

DCM, Loc. XXI. 18, m. 5, with Misc. Ch. 7155; Northumberland Petitions, ed. Fraser, no. 19; Raine, North Durham, 182 note a, 200, 207. For Paunton and Pichard see Records of Bek, ed. Fraser, nos. 84, 162–3, pp. 209, 211; C. Moor, Knights of Edward I, 5 vols. (Harleian Society 80–84, 1919–32), iv, 12. For Bek’s other grants in Norhamshire see CCR 1302–7, 129. RPD, ii, 1157–8. RPD, iii, 282–3; Raine, North Durham, facing 224. Scalacronica, ed. King, xxix. Pugh, ‘Ministers’ Accounts’, 24 (of 1261–2); TNA, SC 6/1144/18 (of 1333); A.J. Pollard, NorthEastern England during the Wars of the Roses (Oxford, 1990), 150–1; RPD, ii, 815–16; Hatfield’s Survey, ed. Greenwell, 269–70.

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as escheator in the liberty. It was usual for him to be appointed at the head of judicial commissions; and in the late fourteenth century, and probably earlier, he also acted as the bishop’s steward – effectively his lieutenant – in the liberty. After 1319, the office was also held for very extensive periods, much longer than would have been possible for comparable officials elsewhere in England. The holder of the office enjoyed an extraordinary degree of local power, and was in a good position to pick up other available patronage. The Grays of Heaton held this office from around 1319 to 1327 (Thomas I), from around 1345 to 1369 (Thomas II), and from 1395 to 1400 (Thomas III). Arguably, their position in the liberty was ultimately less important to the family than the patronage they acquired outside it. Thus it was probably as a result of Thomas I’s service in war with Henry Beaumont, the brother of Bishop Lewis Beaumont, that he was appointed constable in the first place, and he was later retained by Hugh Despenser the younger.81 Nevertheless, his office within the liberty provided a source of income and power whose significance should not be underestimated, and the same is true for his descendants. The majority of the other fourteenth-century sheriffs were drawn from neighbouring or wider county society. War had brought the liberty closer to the centre of political power in the county, and made its constable a figure to be reckoned with. As a result, the liberty might be full of promise for assertive and ambitious neighbouring landowners. This is well illustrated by Thomas Gray I’s successor in office, Sir Robert Manners (d.1355). His ancestors had been established at Etal, a few miles south of the liberty, since at least the thirteenth century. But if the family had any interests in Norhamshire itself at this time, they cannot have been extensive.82 Sir Robert’s prominent position in the mid fourteenth century was almost entirely the result of episcopal patronage. He or his father probably saw service in Scotland in the 1310s, but neither was prominent in Norhamshire in the opening decades of the fourteenth century.83 In 1327, in return for his service in peace and war against all men except the king, Bishop Lewis Beaumont granted Robert for life forfeited lands in Berrington and Kyloe.84 This was probably at the same time that he was appointed as constable of Norham, a position he seems to have held continuously until 1345.85 He was also retained by Beaumont’s successor, Richard Bury, who granted him the reversion of further forfeited lands in Berrington and Buckton. Bury or Beaumont also granted him

81 82 83

84 85

A. King, ‘Scaling the Ladder: The Rise and Rise of the Grays of Heaton, c.1296–c.1415’, in NorthEast England in the Later Middle Ages, ed. Liddy and Britnell, 57–74. It has unfortunately not been possible to consult the Manners deeds at Belvoir castle. TNA, E 101/16/5; CDS, v, no. 3079; and see also Raine, North Durham, 209; TNA, SC 8/161/8035. It should be noted that several members of the family were called Robert, and it is not always possible to distinguish them. DCM, Reg. II, fo. 96v. Raine, North Durham, 209, has Robert as escheator in the liberty in 1317, apparently from one of the Manners deeds at Belvoir castle. It may well be, however, that this is a mistake by Raine or his source for 1327: there is no other evidence that Manners held office in 1317.

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forfeited lands in Goswick.86 These grants were the foundation of his landed interest in Norhamshire. By 1342 he had acquired the entire manor of Berrington and a substantial interest in Kyloe.87 He also picked up other episcopal patronage, receiving from Bishop Bury the wardship of lands in Ancroft.88 The bishop, it is true, was not his only good lord. While he held office in the liberty, he continued to serve in Scotland in the king’s pay, and he was also active in county administration, serving on royal commissions throughout the 1330s and 1340s.89 He acquired further forfeited lands from Edward III and from Durham priory.90 Nevertheless, it was probably from episcopal service that he benefited most handsomely. Men like Manners and Gray had genuine ties to the bishops of Durham, of a kind that had not really existed in the thirteenth century, and they acquired a real stake in the existence of the liberty. * The changing patterns of lordship outlined above led to significant changes in the social networks of the liberty’s inhabitants. These changes, admittedly, should not be exaggerated. For all his career outside the liberty, Robert Haggerston was an almost invariable witness to deeds of the 1330s, 1340s, and later covering the whole extent of Norhamshire, as indeed his probable ancestor of the same name had been in the 1310s and 1320s.91 Norhamshire even seems to have remained close to the heart of William Ridell’s interests, for it was here that his property acquisitions were concentrated in the 1310s, when he acquired the manor of Twizel, and probably also Duddo and Grindon. He was probably also buried at Norham.92 Nevertheless, from the 1310s at the latest, the social horizons of many of the liberty’s inhabitants had been significantly widened by their experience of royal service, and connections between the liberty and Northumberland became increasingly dense and wide-ranging. William Ridell, again, offers a good example. He was sheriff of Northumberland in 1315 and 1317–19, and keeper of Barnard Castle in Durham 1319–23.93 His Scottish service brought 86 87 88 89 90 91

92 93

HMC, The Manuscripts of the Duke of Rutland, 4 vols. (London, 1888–1905), iv, 73–4; Cal. Inq. Misc., iii, no. 754; TNA, DURH 3/2, fo. 54v. RPD, iv, 288–90; TNA, DURH 3/2, fo. 54v. He is styled lord of Berrington in Raine, North Durham, appendix, no. DCCXLII. RPD, iii, 282–3. TNA, E 101/19/36, mm. 3d, 4; C.H. Hunter Blair, ‘Members of Parliament for Northumberland, September 1327 – September 1399’, Archaeologia Aeliana, 4th ser., 11 (1934), 21–82 (39–40). DCM, Reg. II, fos. 142v–143r; Cal. Inq. Misc., ii, nos. 1404, 1445; Raine, North Durham, 209. DCM, 2.4.Pont.9; NDD, 98–9, 103; Raine, North Durham, appendix, no. DCCXLII; Northumberland Record Office, ZSW/2/26; TNA, DURH 3/30, mm. 5d, 10d; DCM, Reg. II, fo. 174r; ‘Visitation of Northumberland, 1615’, ed. G.W. Marshall, Genealogist 2 (1878), 215. For the earlier Robert Haggerston see RPD, ii, 1177, 1178, 1180; DCM, Reg. II, fo. 73r; NDD, 101; Raine, North Durham, appendix, no. DCCXXXII. NDD, 101; TNA, DURH 3/2, fos. 4v–5r; DCM, Bursar’s account 1328/9. Blair, ‘Sheriffs of Northumberland’, 41–2; ‘Sheriffs of Norham’, 77; ‘Members of Parliament for Northumberland’, 76–7.

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him into contact with a range of Northumberland magnates: he witnessed grants of Henry Percy relating to Alnwick in 1310 and 1325, and he was one of the mainpernors of Henry Beaumont (again with Henry Percy) when Beaumont objected to the negotiation of a truce with Robert Bruce in 1323.94 His daughters’ marriages – among others to Sir Alan Clavering, Sir Walter Crayke, and Sir Gerard Widdrington – reflected his connections in wider county society.95 So too did his election as knight of the shire in 1325, an appointment which is striking given the paucity of his landholdings outside the liberty.96 Similarly, in the mid fourteenth century, the social and political ties of Robert Manners drew him some way from the liberty: he witnessed deeds relating to Alnwick, the areas around Kirknewton and Wooler, and the Heron estates.97 Such service to the crown and other magnates could lead to increasingly close links with county society, and increasing identification with the county. Sir Robert Gray and Robert Haggerston, who both served the crown in the 1310s, were identified as ‘of the county of Northumberland’ rather than ‘of the ­bishopric of Durham’, and Peter Orde was among the ‘poor men of Northumberland’ petitioning for a dole of wine in 1319.98 Robert Manners, too, may well have seen himself, and been seen by others, as primarily a man ‘of Northumberland’. He was elected as knight of the shire in 1340, and was prominent among the ‘knights and serjeants of Northumberland’ who presented a petition to the crown in 1346. Accompanying him, significantly, were other leading Norhamshire tenants: Sir Thomas Gray, Robert Haggerston, and Alexander Cheswick.99 In part, these men were Northumbrians because they held land within the county as well as the liberty. By the mid fourteenth century Robert Haggerston had interests in Ford, Akeld, Yeavering and Coupland, and Alexander Cheswick held land outside the liberty in Edlingham.100 It was presumably on the basis of lands outside the liberty that Haggerston or his father had been returned as a man-at-arms of the county by the sheriff of Northumberland in 1324 (together with the knights Sir William Ridell and Sir Thomas Gray, and the man-at-arms Robert Manners).101 Nevertheless, his principal residence at Haggerston, like 94

95 96 97

98 99 100

101

G. Tate, The History of the Borough, Castle, and Barony of Alnwick, 2 vols. (Alnwick, 1866–69), ii, appendix, xviii; The Percy Cartulary, ed. M.T. Martin (Surtees Society 117, 1911), 319; CCR 1318–23, 717. For the marriages see TNA, DURH 3/2, fo. 5r; NDD, 196, note. Apparently only at Littlehoughton (NCH, ii, 405–6). NDD, 93; Percy Cartulary, ed. Martin, 231–2, 435; A. MacDonald, ‘Calendar of the Laing Charters relating to Northumberland’, Archaeologia Aeliana, 4th ser., 28 (1950), 105–31, nos. 8, 14, 17, 20–2; NDD, 23, 99; ‘Local Muniments’, ed. W. Brown, Archaeologia Aeliana, 2nd ser., 25 (1904), 60. TNA, E 101/16/26/4, 70; Northumberland Petitions, ed. Fraser, no. 161b; CCR 1318–23, 148. TNA, C 49/7/20, m. 2. Inquisitions and Assessments Relating to Feudal Aids, 1284–1431, 6 vols. (London, 1899–1920), iv. 65; NCH, vii, 103, 105, 106; xi, 222, 235, 237, 374, 433; Northumberland Record Office, ZSW/3/10, 11. C.H. Hunter-Blair, ‘Knights of Northumberland 1278 and 1324’, Archaeologia Aeliana, 4th ser., 27 (1949), 122–75 (142, 152, 154).

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that of the Grays at Heaton, was within the liberty, where Alexander Cheswick was acting as coroner in 1347. Furthermore, the Haggerstons had held land in Heatherslaw (in Ford) since the thirteenth century without apparently being drawn into county-based activity. The petition of 1346 reflects the real intensification of links between liberty and county that had taken place since the beginning of the fourteenth century. * Did all this mean that the liberty was becoming less important to local society? There is certainly little explicit evidence that its inhabitants identified with Norhamshire. This was in part because it did not have the strong cultural identity of Durham ‘between Tyne and Tees’. Given the area’s important associations with St Cuthbert, which naturally continued to be commemorated, this seems surprising, but in the later middle ages the saint’s primary associations were south of the Tyne, where his body had come to rest. Durham priory attracted the patronage of Norhamshire landowners who wished to fund a light to burn around the saint’s body, and it was almost always the area between Tyne and Tees that was associated with the ‘Haliwerfolk’, the privileged ‘people of St Cuthbert’.102 Similarly, the ‘bishopric of Durham between Tyne and Tees’ or ‘between the waters’ had a well-established identity as a distinctive and privileged area, and Norhamshire did not.103 Perhaps most revealing is the absence of any reference to the area in the Scalacronica of Thomas Gray II (d.1369), constable of Norham. Gray has a sense of Northumberland, and perhaps especially of the Marches, as distinctive areas and communities, but no such sense of the liberty where he spent much of his professional career.104 The same is true of other contemporary texts, such as the chronicle of Durham priory,105 and it is also true of the bulk of local private deeds.106 Personal deeds relating to Durham south of the Tyne, Tynedale, Hexhamshire, and even Redesdale do not routinely make reference to these liberties; but they do so often enough to suggest that they were seen as privileged areas which needed to be distinguished from Northumberland.107 102

103 104 105 106

107

Raine, North Durham, 78 (for the ‘shrine of St. Cuthbert’ at Holy Island), and appendix, no. DCCXXXVIII. For the Haliwerfolk see, inter alia, Feodarium prioratus Dunelmensis, ed. Greenwell, 230, 238 (which distinguishes ‘Haliwerefolc’ and ‘Norhamsire’); Scriptores Tres, ed. Raine, 76. For one example, see DCM, Loc. VII. 4, cited in C.M. Fraser, A History of Antony Bek, Bishop of Durham 1283–1311 (Oxford, 1957), 98 n. 3. Cf. A. King, ‘Englishmen, Scots and Marchers: National and Local Identities in Thomas Gray’s Scalacronica’, Northern History 36 (2000), 217–31. For this chronicle’s sense of the liberty between Tyne and Tees see e.g. Scriptores Tres, ed. Raine, 76. See, for example, NDD, 99, where lands in the liberty (Beal) are not differentiated from those in Northumberland; or CCR 1354–60, 97, where lands in the liberty are said to be in Northumberland. For an exception see CCR 1385–9, 670, 672. This is in natural contrast to documents emanating from the episcopal chancery: e.g. DCM, Reg. II, fo. 102v; NDD, 102–3. Examples include: NDD, 210 (Redesdale. Tynedale); ‘Visitation of Northumberland, 1615’ (above, n. 91), 216 (Tynedale); NCH, ix, 320, n. 5 (Hexhamshire).

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In petitions, finally, the liberty appears only in conjunction with the liberty between Tyne and Tees, from which the initiative seems to have come, and there is little other evidence of collective activity in Norhamshire.108 The area was not able to muster collective payments to buy truces from the Scots in the 1310s, in contrast to the county of Northumberland, Durham ‘between Tyne and Tees’, and smaller lordships such as Copeland, Gilsland, and Allerdale in Cumbria.109 In Norhamshire the Scots were paid off by Durham priory, and there is no evidence of any collective organization.110 Nor is there in the later fourteenth century, when the inhabitants of Redesdale made such payments.111 The liberty could even be threatened by loyalties to smaller units: in 1343 Bishop Bury was dismayed that his justices had accepted a plaintiff ’s claim that pleas relating to Holy Island could only be heard in that vill.112 * It would be tempting to think, therefore, that the liberty of Norhamshire became less important to its inhabitants as their social and political links with Northumberland became increasingly significant. These growing connections between liberty, crown, and county are not in doubt; and there is also some evidence that the expansion of royal influence in Norhamshire was accompanied by a tendency to see the liberty as part of the wider county. When Robert Haggerston obtained royal licence to crenellate his dwelling-place, Haggerston was described as in the county of Northumberland, not the liberty of Durham.113 As we have seen, however, ties between local society, the bishops of Durham, and the liberty itself also became more significant in this period, and we should hesitate before concluding that Norhamshire mattered less to its inhabitants. On the contrary, there is evidence that strong and equitable episcopal lordship fostered, and was in turn upheld by, local support of the liberty. The absence of petitions and collective action noticed above does not necessarily reveal a community lacking self-confidence and cohesiveness. It can also be read as evidence of a community lacking significant grounds for complaint. Norhamshire people were not among the Haliwerfolk who protested so effectively against the exactions of Bishop Antony Bek, but this was probably because these exactions – with the important exception of Bek’s assaults on Lindisfarne priory – bore less heavily north than south of the Tyne. No cases from Norhamshire seem to have been brought against the bishop or his ministers in 1302.114 Episcopal demesne in the liberty was limited, and was leased out rather than 108 109 110 111 112 113 114

Northern Petitions, ed. Fraser, nos. 159, 169, 175. C. McNamee, The Wars of the Bruces: Scotland, England and Ireland, 1306–28 (East Linton, 1997), 131–40. DCM, Bursar’s Accounts, 1313/4 (A), 1314/5 (A); Norham Proctor’s Account, 1314/5; Raine, North Durham, 270; McNamee, Wars of the Bruces, 132–3. Northern Petitions, ed. Fraser, no. 113. The inhabitants of Tweedmouth did pay 10 marks (ibid.). RPD, iv, 280–81; G.T. Lapsley, The County Palatine of Durham (New York, 1900), 170 n. 3. CPR 1343–5, 479. TNA, JUST 1/226, passim; CCR 1302–7, 154–59. For the priory, see RPD, iv, 33–35, 41, 45, 48, 53–5, 63, 65, 73.

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being directly exploited; there was no episcopal forest. It is also likely that the bishops’ prerogative rights of wardship – another potential cause of grievance – were restricted, since relatively few of the liberty’s estates were held by knight service. In some respects episcopal lordship in the liberty was inherently limited, and it is notable that protests against Bishop Thomas Langley, in 1433, again did not relate to Norhamshire.115 We saw above that the bishops could be good lords indeed to some favoured men like Robert Manners. But episcopal patronage was by no means restricted to a favoured handful, and seems to have been distributed with sensitivity to the needs of local families as well as the bishop’s retainers. Thus, for example, Kellawe granted free warren in Murton to Sir Robert Clifford, while Beaumont confirmed Robert Tughall in his possession of land in Scremerston. Bury granted wardships to widows, ‘for reasons of charity’; while Hatfield granted forfeited land to Alexander Cheswick, and exempted Robert Orde from jury service.116 The local community also benefited from successive bishops’ strong defence of the status of the liberty as an area where ‘the king’s writ did not run’. As we have seen, it was largely to the efforts of Bishop Kellawe that the Grays owed the recovery of their manor of Heaton, and the Manners estates in the liberty were largely composed of forfeited lands. The liberty’s freedom from royal taxation was also stoutly defended. Norhamshire did not contribute to the fractional subsidies of the late thirteenth or early fourteenth centuries.117 For the fifteenth and tenth of 1336 and subsequent years it was evidently included with the bishopric or liberty of Durham, for which the collectors did not answer ‘because they could not enter, because the king’s writ does not run there’.118 For the ninth of 1340 the collectors did not enter Norhamshire to assess it, but estimated the sum due from the liberty, which the sheriff of Northumberland was ordered to levy. It was necessary for Bishop Bury to remind the king that that the liberty was part of the bishop’s ‘county palatine’, where no royal minister should interfere except in default of justice; and that, furthermore, the men of his liberty had not been present at, or summoned to, the parliament where the tax had been granted.119 Following scrutiny of the exchequer’s records, the request appears to have been successful. Although the collectors were still being called to account in the 1350s, no sums seem to have been paid, and in the surviving account the liberties were first assessed, then exempted ‘because no writ of the king’s runs there’, then charged again and – apparently finally – exempted.120 This immunity

115 116 117 118 119 120

R.L. Storey, Thomas Langley and the Bishopric of Durham 1406–1437 (London, 1961), 116–34; Cal. Inq. Misc., viii, no. 60. RPD, ii, 1177, 1178; DCM, Reg. II, fo. 73r; RPD, iii, 276–7; DCM, Reg. II, fo. 166v; TNA, DURH 3/30, m. 9d. Except, possibly, when the liberty was in the king’s hands: TNA, E 372/152B, m. 33d. TNA, E 179/158/7, mm. 2d, 7d. Northern Petitions, ed. Fraser, no. 203, with E 159/120, m. 255. TNA, E 372/196, m. 25d; E 179/158/14, m. 2.

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from taxation, furthermore, was maintained throughout most of the later middle ages, with rare exceptions such as the parish tax of 1371.121 The inhabitants of the liberty thus did not find themselves in the unenviable position of their neighbours in Northumberland, burdened by royal demands for taxation, but inadequately protected by the crown. These circumstances, it has been argued, led in the later fourteenth century to the ‘alienation’ of Northumbrian society, manifested in increased levels of criminality, and in weakened loyalties to the crown and attacks on royal officials.122 The bishops of Durham do not seem to have faced similar problems in Norhamshire, which was subject to fewer exactions, and received at least some protection from Norham castle and its garrison; it is striking that in the fifteenth century the liberty never became a byword for lawlessness, as did Tynedale, Redesdale, and Hexhamshire. All this goes some way to explaining the absence of collective petitions from Norhamshire. (It was, conversely, the lack of a similar ‘good lord’ in Cheshire that made the language of community so prominent in that liberty’s resistance to royal taxation in the 1440s and 1450s.123) It also explains why the bishops could rely on the support of local society in their defence of the liberty. When he attempted to claim the forfeited Gray lands in 1311 the royal under-escheator could not find any local man (nul homme del pays) who would help him maintain the crown’s seisin, because the manor was ‘in the liberty of the bishop of Durham’. He was thus unable to extend the lands or take their issues.124 Similarly, the assessors of the ninth of 1340 reported that the inhabitants of the parishes of Norham and Holy Island had not permitted them to enter the liberty.125 It was often impossible for royal government to operate in the localities without the assistance and co-operation of local society. If that assistance had been given, conversely, it would have been difficult for the bishops of Durham to maintain their claims. The inhabitants of Norhamshire did not, in contrast to those of Durham between Tyne and Tees, refuse to answer a royal writ because they were ‘Haliwerfolk’; but their resistance was nonetheless effective.126 These are the most dramatic instances of local involvement in supporting the liberty, but it was through more everyday actions that the inhabitants of Norhamshire did most to uphold its privileges. William Twizel of Norham endowed a chantry in his parish church in 1344 to counteract the damage caused to divine service by the effects of war between Scotland and England. He obtained the mortmain licence not from the king but from the bishop, ‘carrying out his

121 122 123 124 125 126

On the 1371 tax, see C.D. Liddy, ‘The Politics of Privilege: The Palatinate of Durham and the Crown’, Fourteenth Century England 4 (Woodbridge, 2006), 61–79 (esp. 71–3). A.J. Macdonald, Border Bloodshed: Scotland, England and France at War, 1369–1403 (East Linton, 2000), 196–215. T. Thornton, Cheshire and the Tudor State 1480–1560 (Woodbridge, 2000), 1–5. The earl of Chester at this time was the king. Northumberland Petitions, ed. Fraser, no. 20. TNA, E 159/120, m. 255. For the Haliwerfolk in Durham see CIPM, viii, p. 384.

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royal power’, as William put it in the charter of endowment.127 Nor did he see any need to obtain the king’s confirmation. Similarly, it was from the bishop of Durham, not from the king, that Robert Clifford obtained free warren in Murton; throughout the fourteenth century, it was the bishop, not the king, who pardoned the unlicensed alienation of land in the liberty held in chief. Perhaps most importantly, inhabitants of the liberty continued to use the bishop’s courts, and did not take their pleas before royal justices. Challenges to the jurisdiction of these courts, such as that brought by William Heron in 1348, were untypical. Records of the courts are very scanty, but do suggest that they functioned effectively, and the local community did not have to complain, like the people of Northumberland, of the infrequency of judicial sessions.128 It was in the court at Norham, not at Westminster, that final concords relating to Felkington and Thornton were made, and it was again in the bishop’s court that Robert Manners settled his lands in 1343.129 The legitimacy and authority of the bishops’ ‘royal liberties’ was respected and upheld by local society. * In other parts of England the demands of the war state made significant inroads into even the most highly privileged jurisdictions. In Norhamshire – and more generally, in fact, in the greater liberties of north-east England – war did not have such clear-cut effects. Ely and Bury St Edmunds found themselves subject to royal subsidies; in contrast Tynedale, Hexhamshire, and Durham, like Norhamshire, established a general immunity from taxation.130 In some ways, the demands of war not only defined and clarified, but heightened their privileges; episcopal service became increasingly attractive in local society, and Norhamshire’s inhabitants continued to support the liberty’s privileges. It was in many ways true that ‘national security was no great respecter of franchise’. The crown, as we have seen, increasingly assumed that Norham castle could be treated in much the same way as any castle in the east march. The king might order the bishop to array the men of the liberty, or might give royal officers the authority to do so. The influence and lordship of the crown undoubtedly became more important in the liberty, with a significant impact on the social networks and identities of its leading tenants, and some impact on the liberty’s privileges. For all this, however, the liberty’s relationship to royal authority remained in some ways unclear and even problematic. It is not always clear that wardens of the march felt able to extend their authority in the liberty, and it is unlikely that commissions of array ‘within and without liberties’ 127

DCM, 4.1.Spec.40 (‘fungentis in hac parte sua regia potestate’); RPD, iii, 368–69; Raine, North Durham, 261n. 128 CDS, iii, no. 1035; Northern Petitions, ed. Fraser, no. 205; DCM, 2.4.Pont.9, 1.5.Pont.11; Northumberland Petitions, ed. Fraser, nos. 91–2. 129 CPR 1348–50, 208–9; ‘North Country Deeds’ (above, n. 23), 117; RPD, iv, 288–91. See also TNA, DURH 3/2, fo. 11v. 130 J.F. Willard, Parliamentary Taxes on Personal Property, 1290 to 1334 (Cambridge, MA, 1934), 31–32; E. Miller, The Abbey and Bishopric of Ely (Cambridge, 1951), 206.

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routinely operated there.131 The events of Kellawe’s episcopate, in particular, illustrate that royal authority in the liberty could be very limited. A recent reassessment of ‘the medieval state’ has questioned the utility of the very concept, even in the highly-centralized kingdom of England. This is not simply because, without a professional bureaucracy and a standing army, the state was dependant on the co-operation of local elites. Power and authority more broadly were plural and federal in medieval society; they were not the exclusive prerogative of a centralized state, but were shared with many other institutions and elites.132 For these reasons, it has been argued, expressions such as ‘private lordships’ and ‘immunities’ can be misleading. They privilege central institutions, obscure the legitimacy of other forms of authority and power, and impose anachronistic concepts of public and private authority – in short, they ‘re-write the past from the perspective of the modern state’.133 Even for the ‘royal liberties’ of north-eastern England these arguments are not fully convincing. A memorandum written in the bishop of Durham’s chancery around 1311, concerning the bishop’s right to forfeitures, asserted that the king’s writ did not run in Norhamshire, but also portrayed the bishop as the ‘the minister of the king’ by whom the king ‘ought to be served’ in the liberty – which was thus very much a part of the wider body politic.134 As Rees Davies’s own work on the Welsh March showed, royal sovereignty over the kingdom as a whole had been articulated since the thirteenth century through concepts of ‘necessity’, of the royal prerogative, of the crown’s dignity, and of the king’s duty to do justice to all – concepts which presented the king as the ultimate source of power and authority, and which had a real impact on jurisdiction.135 The demands of war only heightened the theory and practice of royal power and subjects’ obligations; and they also gave the crown and liberties powerful common purpose in the defence of the realm. All of this affected liberties in the north-east, even if the impact was less profound than on liberties elsewhere. For all these reasons, the case for seeing the ‘royal liberties’ of north-eastern England as ‘virtual states’ is not a very strong one. It remains true, though, that the memorandum of 1311 hardly does justice to the complexity of the relationship between the liberties and central authority in the fourteenth century. The direct exercise of royal authority remained very limited, and the shape of power and lordship was quite different to that in county society. The crown was not the only recognized source of public authority, and the legitimacy of the liberties was not simply a delegation of royal authority. Liberty holders claimed their own ‘royal rights’ and ‘royal power’ which they 131 132

133 134 135

Thus Richard Bury received a separate commission for the liberty of Norham in 1335: Rot. Scot., i, 389; see also 669–70. For wardens, see CCR 1313–18, 467. Davies, ‘The Medieval State: The Tyranny of a Concept?’, passim; cf. S. Reynolds, ‘There Were States in Medieval Europe: A Response to Rees Davies’, Journal of Historical Sociology 16 (2003), 550–55. Davies, ‘Medieval State’, 294. RPD, i, 77–8. Davies, Lordship, 249–73, esp. 263–5.

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had held ‘from time out of mind’. In the case of Durham the association of these liberties with the church and with St Cuthbert were powerful legitimizing forces quite independent of the crown. This legitimacy provided bishops, and the local community itself, with powerful reasons for supporting the liberty’s institutions, and for defending the liberty – when this should be necessary – against the encroachments of the crown.136 It was for such reasons that the liberty’s officers, when they received royal writs, might nevertheless be unwilling to act without warrant from the bishop as well; and that inhabitants of Norhamshire, in 1302, tore the seal from royal letters and trod it under their feet.137 This was one of the affronts to royal dignity which led to the liberty of Durham being seized into royal hands in 1305, a famous demonstration of the crown’s ultimate power. But other resistance to royal officials, as we have seen above, was more successful. The continued existence (indeed in some ways the expansion) of the liberty’s privileges in the fourteenth century was thus not only a result of the crown’s sufferance, and its respect for precedent and tradition.138 It was also the result of the inability of the crown and its servants to impose their will in the face of episcopal opposition, and – perhaps more importantly – the commitment of local society to an alternative source of lordship and legitimacy. This ensured that, for all the increase of royal power and lordship in the fourteenth century, for the inhabitants of Norhamshire the liberty remained ‘the fundamental fact of their governance’.139

136

For the potential significance of the fear of excommunication and the wrath of St. Cuthbert in the liberty between Tyne and Tees, see CIPM, viii, p. 384. 137 Northumberland Petitions, ed. Fraser, no. 19; RPD, iv, 65. 138 On which see in particular T. Thornton, ‘Fifteenth-century Durham and the Problem of Provincial Liberties in England and the Wider Territories of the English Crown’, TRHS, 6th ser., 11 (2001), 83–100 (100); Thornton, Cheshire and the Tudor State, 80 and passim. 139 Cf. E. Searle, Lordship and Community: Battle Abbey and its Banlieu 1066–1538 (Toronto, 1974), 197.

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5 The Lordship of Richmond in the Later Middle Ages

MELANIE DEVINE

Bastard feudalism was the focus of intense debate and scrutiny in the second half of the twentieth century. The remnants of feudalism were looked upon as anachronistic and without significance. Although retainers were identified by K.B. McFarlane as unpredictable, changing their allegiance to secure more lucrative rewards or more advantageous positions, current research has established that they were more frequently found to be loyal and devoted servants to their respective lords. The contracts drawn up as an essential feature of the process of retaining can now be seen as an integral part of a wider context of lordship, household structure, tenantry and a circle of patronage which was of use not only to the lord as the employer but also to the retainer for his personal and family security. G.L. Harriss defined the ways in which this society was structured by exploring both the vertical bonds of lordship in the form of service within baronial affinities, and equally the horizontal ties which bound geographical communities together. When Peter Coss, David Crouch and David Carpenter, and Michael Hicks revisited this argument during the 1990s, research had also revealed that cash payments for military service had existed as early as 1140, and that there was strong support for the notion that feudalism and bastard feudalism had, in fact, survived side by side for some time. The debate concerning the nature and significance of this ‘new feudalism’ as Simon Walker called it has dominated the discussion of political and military society in later medieval England. The continuity of the concept of feudalism as a social structure has not come under the same scrutiny, in fact it has been somewhat

   



I would like to express my gratitude to Professor A.J. Pollard of Teesside University for his guidance in the preparation of this paper. K.B. McFarlane, The Nobility of Later Medieval England (Oxford, 1973), 102–4. G.L. Harriss, ‘The Dimensions of Politics’, in R.H. Britnell and A.J. Pollard (eds.), The McFarlane Legacy: Studies in Late Medieval Politics and Society (Stroud, 1991). P.R. Coss, ‘Bastard Feudalism Revised’, Past and Present 125 (1989), 27–64; P.R. Coss, D. Crouch and D. Carpenter, ‘Debate: Bastard Feudalism Revised’, Past and Present 131 (1991), 190–203; Michael Hicks, Bastard Feudalism (Harlow, 1995). Simon Walker, The Lancastrian Affinity 1361–1399 (Oxford, 1990), 27.

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neglected. Helen Cam discussed the decay of late-medieval feudal institutions back in 1940, and M.E. James, Bernard Beckingsale and Steven Ellis have all contributed more recently to an examination of what, if any, feudal structures can still be found in sixteenth-century Tudor England, particularly in response to the question of feudalism as a feature of border society, dominated by the great lords of Cumbria and Northumberland and in Ireland. The survival of a number of large and small liberties throughout the north of England where the king’s writ did not run also exposed regional differences: the further away from Westminster, the stronger were the features of feudalism and bastard feudalism. For the purposes of this paper, feudalism is defined in terms of the reciprocal obligations and relationships which existed between a lord and his tenants and retainers within a framework of military, legal and other service. This paper will examine the possibility that the surviving remnants of feudalism itself, with all its attendant institutions and relationships, maintained a significant influence well into the later middle ages and that feudal relationships in Richmondshire were still active in all levels of that society. These structures provided a framework within which members of the geographical community were able to function on a local and national level, and further that this society became politically significant when the Lancastrian King Henry IV usurped the crown and acquired the lordship of Richmond in 1399. Several contemporary documents exist which relate directly to this issue, and these allow an examination of not only the structure of the lordship, but also of some political activities of the Richmondshire nobility during the period 1370–1425. The Livre des Domaines des Ducs de Bretagne en Angleterre, a complete survey of the estates and tenantry of the honour of Richmond both in Yorkshire and elsewhere, with an appendix of historic deeds, charters and grants which acted as proofs of tenure, was compiled in 1398 by Anthony Rycz and Nicholas Aldrewych, the English agents of the duke of Brittany and earl of Richmond, as a means of establishing its precise extent and structure in the light of John IV of Brittany’s re-acquisition of the title to the honour in 1397. This is currently deposited in the Archives Loire-Atlantique in Nantes. The second 

Helen Cam, ‘The Decline and Fall of English Feudalism’, History 25 (1940), 216–33; M.E. James, Society, Politics and Culture (Oxford, 1986); B.W. Beckingsale, ‘The Character of the Tudor North’, Northern History 4 (1969), 67–83; Steven Ellis, ‘Civilizing Northumberland: Representations of the Tudor State’, Journal of Historical Sociology 12 (1969), 103–27.  Hicks, Bastard Feudalism, 81–4.  There is a school of thought which considers that the word feudalism should not be used at all, but it remains an accepted shorthand for the complex system discussed in this paper. Twentieth-century contributions to the debate on the usage of this term include: Marc Bloch, Feudal Society, trans. L.A. Manyon, 2 vols. (Chicago, 1961); Francois-Lois Ganshof, Feudalism, trans. Philip Grierson (New York, 1964); Jean-Pierre Poly and Eric Bournazel, The Feudal Transformation, 900–1200, trans. Caroline Higgitt (London, 1991); Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (Oxford, 1994); Normon E. Cantor, Inventing the Middle Ages: The Lives, Works, and Ideas of the Great Medievalists of the Twentieth Century (London, 1991).  ALA, E116. I would like to express my gratitude to Professor Michael Jones of Nottingham University for his assistance in facilitating my visit to Nantes and for locating copies of various documents relating to the dukes of Brittany.

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document, the Registrum Honoris de Richmond, which is generally accepted to have been drawn up during the first quarter of the fifteenth century, is conserved in the British Library, and was reproduced in a printed version in Latin edited by Roger Gale and published in 1722 in London. A late fifteenth-century working copy of the original document is also found in the Bodleian Library.10 In addition, and further indicating the importance of feudal rights to the lords and tenants of the period, there is a sizeable collection of records relating to subfees of the lordship of Richmond held by the Marmion and FitzHugh families. Lodged in the North Yorkshire County Records Office, the rolls include several contemporary feodaries’ accounts and some records of the court baron of the fee.11 Richmondshire lay at the heart of the feudal honour of Richmond, one of the largest honours to be granted by William I in the wake of the Conquest, and by the late fourteenth century second only to the duke of Lancaster’s estates in value. Identified as the land previously held by the Saxon Earl Edwin, the five wapentakes of Gilling West and East, Hang West and East and Hallikeld, which lie between the rivers Ure and Tees, formed the greatest single land area of the honour, which extended through some ten other counties of England. In contrast to the rather scattered holdings in Lincolnshire, Cambridgeshire, East Anglia and the south-east, Paul Dalton assessed the lordship of Richmond, alongside those of Pontefract and Tickhill, as Yorkshire’s ‘compact honours’, indicating the concentration of lands held in these areas.12 The lordship was granted to Alain le Roux, kinsman to William I, as a reward for his loyal service during the siege of York in 1069 and the subsequent harrying of the north. The castle of Richmond, which was begun in approximately 1077, and was probably one of the first stone-built castles of the Norman Conquest, was the administrative seat for the whole honour both in Yorkshire and elsewhere. The town of Richmond was a seigneurial borough of the lordship, and 114 burgesses paid its fee farm to the earl in 1398. The district as a whole was identified as early as 1136 as a distinct county in terms of the French notion of a county being the land held by a count, in Latin, comitatus.13 Richmondshire was by no means unique in the north of England as a feudal liberty, but the fact that the lordship was both a lay possession, as opposed to ecclesiastical liberties such as Durham and Hexham, and that it was an hereditary territory of the dukes of Brittany who were absentee landlords, complicated the tenure of the lordship, particularly in the fourteenth century. The complexity of this was exacerbated, following the death in 1341 of John III of Brittany, when the escheated lands were not granted to his heir. Instead Edward III granted the title of the whole honour to John of Gaunt, his two-year-old son, while the revenues were granted to Queen Philippa 10

BL, MS Cotton Faustina B vii, fos. 72–132; Registrum Honoris de Richmond, ed. Roger Gale (London, 1722); Bodleian Library, MS Lyell 22. 11 NYCRO, Jervaulx Rolls, ZJX 3/2/1–3/2/60. 12 Paul Dalton, Conquest, Anarchy and Lordship: Yorkshire 1066–1154 (Cambridge, 1994), 133. 13 Early Yorkshire Charters, IV: The Honour of Richmond, part 1, ed. C.T. Clay (Yorkshire Archaeological Society, extra series, 1 (1935–6), 20–21.

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to support her and her children while the king was fighting in France.14 Edward III supported the claim of John de Montfort to the title of duke of Brittany, but the agreement which underpinned this allied John closely to the English crown and allowed the port of Brest to be used for the disembarkation of English troops. In 1360, having spent much of his childhood within the English court, John IV had married Edward III’s daughter Mary but later in that decade in order to pursue his claim to Brittany he came to terms with the French king.15 By 1372, John IV returned to exile in England where he was re-granted the earldom of Richmond, which Gaunt was forced to surrender in exchange for a series of grants including the honour of Tickhill and the forest and castle of Knaresborough in Yorkshire.16 After his successful return to Brittany, assuming the title of duke in 1379, John IV again allied himself to the French king thus forfeiting the honour of Richmond, this time into the hands of Queen Anne, wife of Richard II. After her death in 1394, and following a 26-year truce which was agreed as part of the marriage settlement between Richard II and Isabella of France in 1396, a new alliance was agreed with John IV and he was restored to the honour of Richmond and also created a Knight of the Garter in 1398. However, this was a short-lived arrangement, for early in 1399 John IV died. When, later in that year, Henry Bolingbroke usurped the throne of England, he did not grant the title to John V of Brittany, perhaps because it had been held for thirty years by his father the duke of Lancaster. The revenues and feudal rights of the earldom were granted for life to Bolingbroke’s brother-in-law Ralph Neville, earl of Westmorland, but on his death in 1425 they reverted again to the crown in the person of John, duke of Bedford. To complete the descent, after 1435 the honour was subsequently retained by the crown, but controlled by the Neville family in the cadet line after Bedford’s death, firstly by Richard earl of Salisbury, and then Richard Warwick ‘the Kingmaker’. The grant to Edmund Tudor, earl of Richmond in 1453 only became effective in 1485 when his son, Henry VII, became king. This complex political story forms the background to an appreciation of the significance of the feudal relationship between the crown, the holder of the title to the lordship, and the society of Richmondshire itself. The claims of the houses of Brittany and Lancaster and the crown interest caused the question of the rights, privileges and income of the property to be examined and assessed on a frequent basis and the fact that two of these assessments, made within approximately twenty years of each other, survived, underlines their contem-

14 15

TNA, DL 10/294, DL 10/295 and DL 10/307. After Mary of Waltham died in 1361, John IV of Brittany was married twice more, to Joan Holland, the Black Prince’s step-daughter who died in 1384, and to Joan of Navarre, who, after his death, married Henry IV of England in 1403. It is possible that the marriage to Henry IV can be seen to have a causal relationship to the possession of the honour of Richmond. 16 ALA, E114/5 is the grant of the honour of Richmond to John, earl of Brittany. TNA, DL 10/339 consists of the letters patent recording that the grant of the honour of Knaresborough in exchange for the honour of Richmond was for the benefit of the realm. Further documentation regarding these grants is to be found in TNA, DL 10/351 and TNA, DL 10/347.

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porary importance to the parties involved. An illustration of the significance of the claim to the honour of Richmond can be seen by examining the frontispiece from the Registrum, which depicts the grant of the honour to Alain le Roux by William I.17 Alain kneels before the king, surrounded by knights bearing the arms of loyal supporters, while the script purports to voice the king’s words as William grants to Alain all the lands within Yorkshire previously held by Earl Edwin.18 As a fifteenth-century document this illustration must be assessed in terms of its significance as a political tool in that period. In re-creating, or imagining, the historic event of 1070, the author was also creating an imagined hereditary line for the holder of the lordship, and therefore a continuity of claim. Although the earl controlled 90% of the geographical area of Richmondshire in the late fourteenth century, the land directly held by him had substantially diminished over the previous three centuries due to sub-infeudation; the granting of land as a reward for service.19 As a source of income in 1398, the eight manors, four vills, two forests and the borough of Richmond itself were valued at just over £460 per annum according to the Livre des Domaines. However, this figure was enhanced by the many other sources of revenue available to the earl as feudal lord. In the Inquisition Post Mortem of Ralph Neville, held at Richmond on 12 November 1425, these were detailed as follows: ‘the castle, earldom, honour and lordship of Richmond with the manors of Gilling, Aldbrough, Bowes, Forcett, Danby Wiske, Moulton, Catterick, Arkengarthdale and New Forest, two vachereies called East Hope and West Hope, the bailiwicks of Gilling East, Gilling West, Hang East, Hang West and Halikeld, members of the lordship and honour, with return of all writs and royal commands, sheriff ’s tourns within the lordship, infangthief, waifs and strays, assizes of bread and ale, bloodshed and hue, chattels of felons and fugitives, king’s share of lead (le lotte Plumbi) and a court baron at Richmond every three weeks and all other members and liberties in the county’.20 The tolls exacted on the passage of goods through the county of Richmondshire proved advantageous as they covered the main north-south and east-west routes: these tolls were situated at Dishforth and Leeming Bar which covered entry from the south, Great Smeaton where the road from Northallerton to Darlington crossed that from Richmond to Yarm, and Bowes which covered the major east-west route over Stainmore and where there was also a castle held 17 18

BL, Cotton Faustina B vii, fo. 72. The fifteenth-century frontispiece refers only to the grant of lands in Yorkshire; the author of this document was concerned to establish a specific history of the lineage of the lordship of Richmond. The portraiture reflects fourteenth-century arms and armour, and I am grateful to Dr Linda Rollason for her suggestion that the depiction could be imagined as Edward III granting the lordship to John of Gaunt. 19 The remaining area of Richmondshire was held by the Mowbray family and consisted of ‘Mashamshire’, in the south of the county. Early Yorkshire Charters, IV, 21. 20 Calendar of Inquisitions Post Mortem and other Analogous Documents preserved in the Public Record Office, vol. xxii, 1 to 5 Henry IV (1422–1427), ed. Kate Parkin (Woodbridge, 2004), no. 649, p. 581. It is noteworthy that the earl of Westmorland’s Inquisition Post Mortem clearly recited the letter patent of the grant in 1399, a copy of which was surely before the jury.

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by the lordship. Return of writ meant that the sheriff of Yorkshire did not have jurisdiction within Richmondshire; the sheriff ’s tourn was held instead by the bailiffs of the five wapentakes; an example of feudal arrangements continuing to operate within an even earlier land organisation. Financially the feudal income was insignificant when compared with the rents and revenues: less than 5% in 1398, although this grew proportionally as the income from land shrank during the early part of the fifteenth century. However, the importance of the feudal dues was out of all proportion to their monetary value. John IV was granted the title to the lordship in 1372, but in 1377, while resident in England, he felt sufficiently aggrieved that he complained to the king in person that he had not been able to exercise the return of writs which would have enabled him to increase his income and influence over his lands, using his powers of distraint and the profits from this.21 There were sixty-two knights’ fees in Richmondshire; that is to say that the original divisions of the land had been made in order to support sixty-two knights to guard Richmond castle. Castleguard was supplied only by the Richmondshire fee holders, and was arranged in two-monthly periods, with twice as many guards being required during the summer months, to counteract the perceived threat from the north. The Registrum also contains an elaborate illustration which details the original castleguard for Richmond castle in plan form.22 This lists the original holders of the fees in the upper page, the exact positions they were to hold in defence of the castle, and the total number of fees. Paul Dalton commented that, ‘The confinement of the fees owing ward service at Richmond castle to the geographical lordship of Richmond suggests that the castle was regarded as the property of the lord rather than of the king. However, when the lordship was in the king’s hands, the castle was probably regarded as a royal fortress’, which emphasises the problems faced by the fluctuating tenure of the title to the lordship.23 Although by 1398 castleguard was no longer a physical requirement, having been commuted to cash payments called wards and fines, and the number of knights’ fees had been reduced, the very fact that the detailed lists are included in both the Livre des Domaines and the Registrum indicates a fifteenth-century understanding and acceptance of the structure of historic feudal dues in Richmondshire and a preoccupation with their continuing significance both to the holder of the lordship and to his tenants. By 1398 the sixty-two fees were owed by just twenty-eight descendents of the original vassals, and the contemporary holders of the fees are listed in the Livre des Domaines as ‘homagiers’. The Registrum documents more details of the original knights’ fees and subsequent changes over the previous two centuries during which the individual fees were amalgamated by marriage, exchange 21

From his household accounts during the period 1377–9, it is clear that John IV never actually visited Richmond. He resided mainly at his manor at Cheshunt, although he visited Bassingbourne, near Cambridge, Castle Rising, in Norfolk, and paid a brief visit to Boston in Lincolnshire, which was the most valuable of his properties outside Richmondshire. 22 BL, Cotton Faustina B vii, fo. 85v. 23 Dalton, Conquest, Anarchy and Lordship, 133.

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and subinfeudation into the three major fees of the lordship: the Constable’s fee, the Middleham fee and the Marmion fee. The largest of the three, the Constable’s fee, originally created for the hereditary constable of Richmond castle was purchased by Sir Geoffrey Scrope in 1320–1.24 This fee was subsequently divided between the two branches of the Scrope family of Bolton and Masham. In Richard II’s reign, an inquisition recorded that the two branches held thirteen knights’ fees between them, the greater part being held by the Masham branch. The Middleham fee was smaller, and by the time of Henry IV there were fortythree sub-tenants who contributed to six knights’ fees: this fee was held by the Nevilles. The total income of that fee was around £12 per annum of which £2 was made up of the wards of the bailiff of Hang West wapentake. The Marmion fee, named after the family who held it earlier, was held by the FitzHugh family who married into the fee at the end of the fourteenth century and amalgamated their own fee of Ravensworth with that based in West Tanfield. The three feeholders were lords in their own right and local nobles who, as residents of Richmondshire, had direct contact with their tenants and sub-tenants, exercising control over their respective fees on behalf of their titular lord. The rents which were due to the lord of Richmond and to his primary tenants as holders of the fees during the period were received in both cash and kind. The ‘kind’ consisted of many symbolic statements of the position in society of the payer and payee, ‘a rose at midsummer if demanded’, a pound of pepper, cinnamon, cumin or ginger, a barbed arrow, a sparrow hawk and a hawking glove are all catalogued amongst those owing in Richmondshire. In the Registrum, the entries of the share of the Constable’s fee held by Richard third lord Scrope of Bolton list rents which were paid in cash, but also those where the tenant was still paying either partly or fully in some other way. In the Croft-onTees area, Thomas Clervaux rented his land at Marshalland for 12d. and one barbed arrow per year, and paid an additional 2d. as his proportion of the fines and wards of the fee; John Clervaux rented his land in Jolby for a free rent of 1d. and one pound of cinnamon valued at 4d., and John Multon rented his land in Croft for 1d., a quarter of pepper valued at 4d., and paid an additional 4d. for fines and wards. The total of the free rents, fines and wards for the Scrope of Bolton portion of the Constable’s fee in 1411–12 was £1.9s.7d., half a pound of pepper valued at 8d., two parts of a quarter of pepper valued at 3d., one pound of cinnamon valued at 4d. and one barbed arrow. A further £1.4s.8d. of fines was received for suit of court from twenty-six tenants of this fee. The Scrope of Masham portion of the fee yielded another £1.19s.8½d., and a further one pound each of pepper and cinnamon, another barbed arrow and a pair of gloves.25 In Manfield, in the Marmion fee, John Gretehened the tenant of the forge paid his rent to Elizabeth Marmion as holder of the fee with four horseshoes, and John Aykescogh paid two pounds of cumin for two acres of land, which was then sold

24 25

Westminster Abbey Muniments: 1380, 1383, 1386, 1387, 1406, and 1432. Registrum Honoris de Richmond, 81–5.

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for one shilling.26 This demonstrates that rents in kind were actively sought and then used, but the nature of the rent or even if it was actually demanded or paid, was not the most important factor. The significance lay in the preservation of an historic transaction which underlined the position of both participants within the composition of the lordship as a whole. These rents were payable throughout the year, sometimes on one date, and sometimes at fixed intervals. Payments listed in the Registrum within the Constable’s fee and in the Marmion account rolls, were due on a variety of feast days in the Christian calendar: Easter, Christmas, Pentecost, the feasts of St Michael, St Peter, and St Martin, but also on the day of Richmond fair.27 These dates represented historic arrangements made between tenant and landholder, and indicate a very personal relationship for the payment of rents. They also illustrate the public nature of the payments; those due on the day of Richmond fair would necessitate that the landlord (or his representative) and the tenant should attend the fair, and that the handing over of the required rent would be performed in front of witnesses. Many of the rents also detailed that the tenants owed military or court service in addition to the fines and wards to the holders of the three fees which were a further indication of the continuity of feudal practices into the beginning of the fifteenth century, strengthening the position of the fee holders and acting as a continual reminder to each tenant of his position within the lordship. The fines and wards of each fee were in turn delivered to the holder of the lordship which underlined the continuity and strength of the society within Richmondshire, and the full acceptance by all the participants. In addition to these revenues, the lord of Richmond would expect to receive payments from the three principal fee holders in lieu of scutage, relief, wardship and marriage. Having been granted the lordship for life at the first parliament of Henry IV’s reign, Ralph Neville, earl of Westmorland, became responsible for the young Richard, third lord Scrope of Bolton, in August 1403 on the death of his father, Roger. This enabled Neville to gain at least temporary control of the Scrope of Bolton lands in Wensleydale and also over Richard’s subsequent marriage, which was to one of Neville’s daughters by his first marriage, Margaret. Similarly, Westmorland’s son Richard Neville acquired the wardship of Richard’s children following the latter’s death in France in 1420. Amongst the primary tenants, wardship was also a means of increasing income. Richard, first lord Scrope of Bolton, held the wardship of at least three heiresses: two of whom, Millicent and Margaret Tiptoft, he married to his own sons. The other, Margaret, Thomas St Quintin’s heiress, allowed him control over the St Quintin lands at Hornby near Bedale. In 1391 an indenture was sealed between Richard Scrope and John Conyers, ‘whereby Richard has sold to John the wardship of the person and lands of Margaret, cousin and heir to Thomas St Quentin, knight, of Hornby, in Richmondshire, which pertains to him because of the minority

26 27

NYCRO, ZJX 3/2/33. Registrum Honoris de Richmond, 81–5.

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of Margaret. John has paid 200 marks to Richard for the wardship.’28 Charles Ross assessed that Scrope’s annual income was approaching 600 marks, and therefore the additional receipt of 200 marks at a time when he was building Bolton castle, was timely.29 In the indenture John Conyers agreed to perform scutage as required and to pay homage to Richard Scrope for Margaret’s lands, and also that he would do fealty when Elizabeth came of age. Conyers thus illustrated his clear understanding that Richard Scrope was his lord as holder of the Constable’s fee which included the manor of Hornby. In 1417–18 Henry FitzHugh held the wardship and sold the marriages of two heirs, John de Laton and Marmaduke Exelby, for the combined sum of £49, a figure which, although smaller than that for Margaret St Quentin, represented his feudal authority over his tenants, for during the boys’ minority he held their lands and collected the income from them. Although the fines and wards from the three fees were paid to the tenant-inchief of the lordship, three of the four fee-holders were wealthy enough in their own right to expand their own caputs during the period, which enhanced their status and power over their respective tenants. In spite of the programme of repairs which had been carried out in 1355, by the end of the century Richmond castle had competition as the most significant power base in Richmondshire with the baronial building work being undertaken elsewhere. In 1379 Richard Scrope of Bolton, then Chancellor of England, began the construction of his castle at Bolton in Wensleydale at a cost of 1,000 marks per annum over a period of eighteen years, during which time he acquired the titles of Constable of Richmond and chief forester of the lordship.30 At Ravensworth, an older castle, the new gatehouse was constructed, gardens and a substantial water landscape added, and the whole area was emparked in 1391 during the period when Henry FitzHugh was leasing the lordship of Richmond from Queen Anne.31 By the end of the fourteenth century Middleham castle was also being improved and extended to provide more elaborate and comfortable chambers for the household and further staff facilities under the direction of Ralph Neville, following his second marriage to Joan, daughter of John of Gaunt, in 1396. The display of wealth, power and dominance over the landscape which this extensive building programme by the fee holders of the lordship presented to their tenants could have been a reflection of the competition for pre-eminence amongst the feeholders of the lordship in the continued absence of a resident tenant-in-chief.32 The considerable administration required to oversee the lordship of Rich28 29

NYCRO, MS ZBO, Bolton Cartulary, fo. 56r. C.D. Ross, ‘The Yorkshire Baronage, 1399–1435’ (unpublished Oxford University D.Phil. thesis, 1951). 30 NYCRO, ZBO, MS Bolton 152, mc55a and b, are the letters patent for the licence to crenellate ‘unam placeam infra idem manerium muro de petra et calce firmare et kernellare eo manerium’. 31 Edmund Bogg, Regal Richmond and the Land of the Swale (1909). 32 The symbolic use of baronial landscapes as an expression of power and status has been the subject of recent debate, including A. Emery, Greater Medieval Houses of England and Wales, Volume 1: Northern England (Cambridge, 1996); Matthew Johnson, Behind the Castle Gate: From Medieval to Renaissance (London, 2002); C.L.H. Coulson, Castles in Medieval Society (Oxford, 2003);

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mond was undertaken by a team of professional officials based in Richmond castle. The most senior member was the steward or seneschal who acted as the lord’s deputy. There was a financial officer or receiver, who collated all the income, both from land and fees, and the accounts.33 Under him was a receiver for each of the estates, and they in turn were served by a team of ministers including the collectors and bailiffs within the individual manors. The bailiff of Richmond had five assistants according to the Livre des Domaines. In addition to the financial officers, according to the accounts of John Darrell, the king’s receiver for 1383–4, there were up to thirty other members of staff including the constable, the master forester, the auditor, the clerk, the keeper of the castle, and the watchman. There was also a lord’s advisor, who assisted with the court leet, and with the accounts. This position was held by a member of a Yorkshire family who served the lordship as administrators, John Frithebank, who acted on behalf of Gilbert Frithebank, the lordship’s receiver. Outside the castle, there were eight or nine foresters, responsible for Gillingwood, Wytcliffe (White Cliff), Arklegarth, Swyntonhowe, Hope, Stainsmoor and the forest of Bainbridge. The position of warden of Richmond castle orchard was held by William Scrope at a salary of £10 for life and there was also a master miner of lead, a warrener in the village of Moulton and even a paid recluse in the castle chapel.34 While castleguard was no longer required in Richmond, military service was still expected from the principal feudal tenants. In the Livre des Domaines, John IV required a precise list of his homagiers who held knights’ fees, his tenants by fealty who were free tenants and his tenants par verge who were tenants at will who held virgates of land within his estates.35 The agents reported to John IV that the homagiers who attended the final day at Richmond were not willing to pay homage to them as personal representatives of the duke of Brittany. They suggested that Richard lord Scrope of Bolton’s son, William, who was then Treasurer of England, was responsible for their reluctance: Et mon tres redoubté seignour, cerchés bien ceste libre entour et regardés pour vostres homageres, par cause qu’il est grande prejudice a vous mons. et a voz heires ce qu’ils no ount fait lour homage.36

While the payment of their wards, fines and rents was in no doubt the issue of homage was different. Swearing fealty to John IV in 1398 would appear to have constituted allegiance to a foreign power, albeit at a time of truce between England and France. In view of his previous vacillation and his alliance with Charles V, if John IV had at any time wished to demand military service to raise

33 34 35

36

Robert Liddiard, Castles in Context: Power, Symbolism and Landscape, 1066 to 1500 (Macclesfield, 2005). Michael Jones, Ducal Brittany 1364–1399: Relations with England and France during the Reign of Duke John IV (Oxford, 1970), 178. TNA, SC 6/1086/2; ALA, E 116, fo. 17v. P.S. Lewis, Later Medieval France: The Polity (London, 1968), 137–9. It seems possible that John IV’s agents were attempting to re-establish a French domaine in Richmondshire, the administration of which would appear archaic to his English tenants. ALA, E116, fo. 18v.

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a force from his tenants in Richmondshire, this could have been perceived as contrary to the English king’s future ambitions in France and even as treason. When the crown held the lordship of Richmond directly, the men of Richmondshire could be, and were, raised by the king’s proxy, and this can be seen by the number of knights and gentry of Richmondshire who were raised for the battle of Neville’s Cross in 1346 and again at the time of the last feudal levy before Otterburn.37 Similarly the numbers of Richmondshire men retained by John of Gaunt who travelled with him to France and Spain, and those who fought further afield indicate no lack of local military might. Forces from the area were also required to quell rebellions in 1403 and 1405, to accompany Henry V to France and to support the wardens of the marches.38 The influence of the Neville family over Richmondshire during the fifteenth century also meant that local men fought for York in 1460–61, and were mobilised four times for Warwick between 1469 and 1471. The deep-rooted and long-established feudal structures and personal relationships within Richmondshire had created and continued to sustain a homogeneous community. Evidence from both the Livre des Domaines and the Registrum demonstrates that the lordship of Richmond between 1370 and 1425 retained many of the historical traditions of a feudal liberty. The fees, wards and fines which are so meticulously listed, the charters which had been so carefully preserved, and the creation and preservation of two detailed documents, drawn up within such a small time frame, witnessed to the importance of the liberty and its people to whoever claimed the title and revenues. While the purpose of drawing up the Livre des Domaines appears straightforward as a survey of potential revenues and a protection against any future challenge to ownership, the reason for the compilation of the Registrum is more complex. With its extensive appendix of historic charters, it appears that early in the fifteenth century someone was attempting to create a link with the earliest holders of the honour of Richmond. It could have been collected and preserved either as a defence against the restoration of the honour of Richmond to the dukes of Brittany, or as a positive claim to the belief that the House of Lancaster was the rightful holder. If Henry IV, one possible instigator, saw the lordship of Richmond as a Lancastrian title following John of Gaunt’s thirty-year tenure, then the events of 1399 would have proved to be the perfect foil for the restoration of the rightful heir, namely himself. The king would therefore be making a claim to an ancient lineage, but he would also have a contemporary perception of Richmondshire as an area actively dominated by his brother-in-law, the earl of Westmorland and his 37

See, for example, Richard Scrope, Scrope and Grosvenor Controversy, with biographical notices by N.H. Nicolas, 2 vols. (London, 1832), i, 136, 164, 173, 194–5. 38 For the English rebellions, see P. McNiven, ‘The Betrayal of Archbishop Scrope’, Bulletin of the John Rylands Library 54 (1971), 173–213, and Simon Walker, ‘The Yorkshire Risings of 1405: Texts and Contexts’, in Henry IV: The Establishment of the Regime, 1399–1406, ed. G. Dodd and D. Biggs (York, 2003); for Henry V in France see N.H. Nicolas, History of the Battle of Agincourt, 2nd edn (London, 1832); T.B. Pugh, Henry V and the Southampton Plot (Stroud, 1988); Juliet Barker, Agincourt: The King, the Campaign, the Battle (London, 2005).

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second wife: Joan Neville, John of Gaunt’s daughter, representing the continuing claim of the Lancastrians. If this was the case, then the House of Lancaster could well believe that compiling this Registrum was a means of asserting their right to the title. However, in 1399, at his first parliament, Henry IV did not include the title of earl of Richmond in the grant of the honour of Richmond to Ralph, earl of Westmorland, for life.39 It seems probable therefore that Ralph Neville could have initiated the compilation of this document as a means of creating an hereditary claim to the ancient lineage of the title of the honour of Richmond. Certainly, one of his first actions as holder of the honour was to indenture Nicholas Aldrewych and Anthony Rycz, John IV’s agents, as his own retainers, to continue their administrative work.40 It is quite possible that the collection of documents in the Registrum came into his hands at the same time. While the possession of the documents was probably justified by his role in Richmondshire, to have a deliberate copy of those documents made by one scribe, and silvered and illuminated in such a costly and ornate fashion, must indicate the author’s desire to advertise the wealth and power which he could command and a significant purpose for such expense. If he was indeed the instigator then Ralph Neville was surely taking the opportunity to advance his own perception and ambition for the junior branch of his family. His close family ties with John of Gaunt, his relationship with Henry IV, his brother-in-law, and his land and fee holding within the area, may have suggested that if Richmondshire was the inheritance of the noble Lancastrian line, then his line should uphold that tradition. Richmondshire still served as a feudal county in its own right, and the significance of this cannot have been lost on Neville. As a member of the new royal house, at least by marriage, he could bring to the Lancastrian crown increased wealth, power and status, which would reflect well on him and on his inheritors. If he believed this, then he might have been lobbying for the hereditary grant and title for his son Richard, at that time a young man in want of patrimony or title. Richard Neville was the grandson of John of Gaunt. What better than to make him earl of Richmond with the lordship as the core of his inheritance and, as Ralph was already in the process of doing, adding a vastly improved Middleham to this legacy. The last dated document in the Registrum is the feodary’s account for Middleham in 1412–13, and thus it is probable that the volume was constructed in the last year of Henry IV’s life or the first year of his son’s reign. If Henry IV had refused to grant the lordship in tail to Westmorland, then the latter may have believed that a petition to Henry V might have 39

CPR, 1399–1401, 241. The grant to Ralph Neville has led some historians to state that Westmorland was invested with the title of earl of Richmond; see, for example, Charles Young, The Making of the Neville Family (Woodbridge, 1996); Walker, ‘The Yorkshire Risings of 1405: Texts and Contexts’. It is clear, however, from the very detailed letter patent that Henry IV granted the castle, earldom, honour and lordship together with all the feudal dues and services to Neville, but the term was clearly identified as ‘for the life of the king’s brother’. 40 TNA, C 54/245, m. 23d and C 54/245, m. 16d. The ceremony took place in London on 14 February 1400.

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been received more favourably. However, when Henry V came to the throne he granted the reversion of the honour to John, duke of Bedford in 1414 and Ralph Neville’s ambitions were extinguished. The symbolic significance in the Registrum of the traditions of feudalism was central in order to give any claim to its authorship antiquity and status. The acquisition and conservation of these documents demonstrates one purpose: that they were perceived to be of such importance to the lordship that they had to be retained for presentation as an essential body of evidence for a future grant. The documentation of the feudal traditions of Richmondshire in the later middle ages survived because the compiler of the Registrum had a clear perception of the lordship of Richmond as a liberty rather than a landed estate, and thus he emphasised its feudal origins and continuing feudal elements. Thus both the feudal history and the contemporary feudal reality were both emphasised in the volume, which was a statement of how the author saw the lordship and how he expected anyone who read the compilation to understand its significance. In this regard, the careful conservation of documents which demonstrated the continuity, antiquity and lineage of such estates was vital to the holders of the title, not merely as a means of exacting revenue and homage, but also as a tool for political advantage. The people of Richmondshire understood and accepted the system of fees and homage until their loyalty to the crown of England was questioned. Even then, fines and wards were collected and homage was paid during the first quarter of the fifteenth century. Although the modern historian may see this as archaic, his contemporaries would understand the rituals as essential and meaningful social relationships. While on a national stage, elements of Bastard Feudalism can be seen in pre-bastard feudalism times, so in Richmond the remnants of feudalism had not only retained their relevance, but the consequences had created a potent political force in the north of England. Richmondshire was by no means typical of England as a whole, or even of the liberties of the north. However, as can be seen from the evidence which has survived, the feudal liberty of Richmond was significant not only to that area of north-west Yorkshire, but nationally where it represented a source of honour, wealth, and power.

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6 ‘Tam infra libertates quam extra’: Liberties and Military Recruitment

MICHAEL PRESTWICH

It is often said that the medieval state was concerned above all with two things, law and war. In the history of law, liberties have a large place; the extent to which the English crown was prepared to devolve legal authority was remarkable. Half the hundreds at the end of the thirteenth century were in private hands. The powers of great liberty holders were very impressive, and many examples could be given. The greatest might combine freedom from both secular and religious authorities. At Bury St Edmunds, the abbot exercised all the authority that a sheriff would normally possess over eight and a half hundreds in West Suffolk. Within this area lay the liberty itself. There no royal official could act; all power lay with the abbot. Bury was also an ecclesiastical liberty, dependent directly on the pope and free from any episcopal interference. The liberty of St Etheldreda, belonging to the see of Ely, was another from which all royal officials were excluded. The bishop’s justices heard all pleas, including pleas of the crown. Cases were successfully removed by the bishop from the jurisdiction of King’s Bench, and of Common Pleas. When it came to war, one argument is that the scale of the franchises of the Welsh March and the north of England is to be explained, at least in part, by military need. For Helen Cam, the Scottish wars ‘kept the northern counties in a state that explains alike the creation of that wardenship of the Marches on which the power of the Nevilles and Percies was founded, the retention of the liberties of Tynedale, Redesdale, Hexham, Norham and Bedlington as recruiting grounds for the fighting forces, and the preservation and hardening of the viceregal powers of the bishop of Durham.’ The argument is a tempting one, but is it convincing? With one notable exception, the holders of liberties could not  

I am grateful to Matt Holford for his helpful comments on an earlier draft of this short paper. A. Gransden, ‘John de Northwold, Abbot of Bury St Edmunds’, TCE iii, 92; E. Miller, The Abbey and Bishopric of Ely (Cambridge, 1951), 323–5.  H.M. Cam, Liberties and Communities in Medieval England (Cambridge, 1944), 210–11.

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exclude the crown and its officials when troops were needed. Recruitment took place both within and without liberties. Holders would have been incapable of preventing commissioners of array from operating within their liberties. It would have been very dangerous if they had been able to prevent the levying of troops; this could have reduced the crown’s military capabilities substantially. However, this did not mean that liberties were irrelevant when it came to recruitment. Liberties were usually convenient and coherent in administrative terms, and it made sense for the crown to make use of them as units from which to draw troops. The way in which this was done reveals something of the importance and identity of the liberties of England and the Welsh marches, but this paper will concentrate on the north-east of England, which contained the one great liberty where royal officials did not recruit soldiers, that of Durham. Liberties played little significant part in the recruitment of knights and menat-arms, and it not surprising that in his discussion of the recruitment of cavalry forces in fourteenth-century Northumberland, Andy King makes no mention of the role of liberties. For the recruitment of cavalry, there was a formal feudal obligation. The fact there were no exemptions from this lends some support to the arguments that see this obligation as one introduced in the period after the Conquest; had it existed earlier, there is a likelihood that some institutions might have obtained immunity. The holder of a liberty might, however, be beneficially treated, with a particularly low quota; this was the case in the twelfth century with major ecclesiastical lordships. In that period Durham, with about seventy knight’s fees, had an obligation to produce a mere ten knights. However, it is striking that when radically reduced quotas were introduced in the early thirteenth century, those that were already low, as at Durham or at Abingdon Abbey with a five knight obligation, were not cut back. Durham, for the Welsh campaign of 1282, produced a contingent of four knights and twelve sergeants, which was headed by John FitzMarmaduke. The importance of formal obligation should not be exaggerated, even though summonses continued to be issued as late as 1327, for the numbers who served in response to such requests for service were relatively small. What was far more important was the practice of summoning men individually to serve, either on a voluntary basis or for pay. This took no account of their tenurial position; the matter of whether or not a man held a liberty was of no relevance. Liberties were, therefore, in no different a position from any other lordship. The recruitment of infantry was undertaken on a quite different basis from



A. King, ‘ “Pur Salvation du Roiaume”: Military Service and Obligation in Fourteenth-Century Northumberland’, Fourteenth Century England ii, ed. C.J. Given-Wilson (Woodbridge, 2002), 13– 31.  J. Gillingham, ‘The Introduction of Knight Service into England’, Proceedings of the Battle Conference 1981 (Woodbridge, 1982), 53–64, argued that there must have been pre-Conquest quotas.  T.K. Keefe, Feudal Assessments and the Political Community under Henry II and his Sons (Los Angeles, 1983), 157, 244.  RPD, iii, 60–1. Curiously, this entry says that service of nine knights was due, but the contingent was the equivalent of ten, for two sergeants were equivalent to one knight.

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that of cavalry. Surprisingly little is known about this until the late thirteenth century, when commissions of array were developed. In 1277, for Edward I’s first Welsh war, the sheriffs were authorised to undertake the recruitment of footsoldiers, but from 1282 it was normal to appoint men especially for this task. The standard method of recruitment adopted by Edward I was to set up a commission on a county basis, with full rights to recruit men from both within and without liberties, tam infra libertates quam extra. A commission might even be appointed extending over several counties; for the Welsh war of 1294–5, for example, Hugh Cressingham, Roger Brabazon and Peter Malory were to select troops in six northern counties. Often in a commission a clerk would be associated with a man of military experience. How these commissions operated over large areas is unclear; they must have made extensive use of local officials, while presumably supervising the main muster. There is some evidence to show that at a local level, it was the communities of the hundred and the vill who undertook the task of selection. At South Cave in Yorkshire the local bailiff, with two others, offered a man who had been chosen their protection in return for ten shillings. One group of villages in Yorkshire made an agreement with Nicholas de Stillingfleet, who agreed to find twenty men to go to Scotland with him. They paid him £3, which he took and ran. The process of infantry recruitment normally produced a sufficient number of men, but their quality was often woeful. This is not surprising; it was tempting for a village to select those who could most easily be spared, rather than those who were likely to be the best soldiers. Desertion was a major problem, particularly for campaigns in Scotland. English troops recruited from the north found little difficulty in escaping from the rigours of campaigning, though those with further to go to reach home, notably the Welsh, were less of a problem. One answer to the problem of desertion was to threaten severe penalties should deserters be identified and caught, but this was no easy task. Edward I wrote angrily to the Keeper of the Wardrobe, John Droxford, in 1300, complaining about the behaviour of the Yorkshire levies. He was even suspicious of local officials, who he thought might have aided and abetted the deserters; trustworthy men were to be appointed who were to make an example of the miscreants. Imprisonment and forfeiture of land was threatened. In 1335 the situation was no better. Instructions went to the sheriff of Yorkshire that he should arrest and imprison those from his county who, in the previous year, had appeared long enough in the army to take their wages, and who had then vanished. A better solution than threats was to make the recruitment process more efficient. An obvious answer was to make the commissions of array more specialised, and to appoint them with a narrower geographical remit. That way they could take much more care over the selection process. This made military sense in another way, for if men were recruited from a specific area, with a strong sense of local identity, they were more likely to form a coherent and well-motivated force.  

M.C. Prestwich, War, Politics and Finance under Edward I (London, 1972), 102. SC1 61/63; Rot. Scot, i, 316.

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Commissions could be, and were, appointed to individual counties, but it was also possible to use liberties as the units from which troops were taken. This was first done in the Welsh marches, where it was a necessary step, as there was no county administration that could undertake the task. Local bailiffs were used to raise troops from Welsh marcher lordships in the Welsh war of 1282–3. It continued to be normal practice to recruit in this way in Wales; the pay roll for the 1298 expedition to Scotland shows troops from, for example, Gower, Builth, Brecon, Denbigh, and the Mortimer lands.10 This continued; in 1335, for example, men were to be levied from the various lordships of the March.11 In some cases in England, by 1300, it is evident that recruitment was from the lands of a particular liberty or lordship. The pay records identify the men of the earl of Lincoln’s Lancashire lands of Blackburnshire, and those of his Yorkshire honour of Pontefract, as separate units.12 At the end of the main campaign in that year, an expedition separate from the main army was organised, to go to Dumfries. For this, the normal process of recruitment on a county basis was not used. The force was drawn from the lordships of the north-west, and the pay roll records the soldiers grouped in this way.13 In 1303 there was a force under John Clay, constable, and ninety-five archers, all drawn from the liberty of Hexham, which mustered at Roxburgh.14 In 1307 separate commissions were appointed for some of the liberties of the north of England. Among them were Penrith, Cockermouth, Egremont, the liberty of the bishop of Carlisle, and Tynedale.15 This was not a question of the crown abandoning its rights over the liberties, and handing over authority to recruit troops to their holders. The commissions of array were still royal commissions, but instead of having powers both within and without liberties, some would have the specific task of recruiting within a given liberty. It was an obvious recognition of the role of the liberties in local government. This practice continued, though practice varied from campaign to campaign. It did not make sense to treat all liberties as separate units for recruitment; it was the major ones in the north of England, above all Yorkshire, and in the Welsh 10 11 12 13

E 101/12/17. Rot. Scot., i, 338–9. Liber Quotidianus Contrarotulatoris Garderobiae, ed. J. Topham et al. (London, 1787), 244–5. Ibid., 260–3. The contingents were: Ingram de Gynes 40 Earl of Lancaster 60 Thomas of Pickering 9 Bishop of Durham’s men of Penrith 64 Leyburn brothers 8 Thomas of Derwentwater 30 Michael Harclay 10 Alexander of Bassenthwaite 30 Robert de Askeby 8 Thomas de Lucy 40 Gilbert de Corwen 20 Thomas of Ireby 7 William Dacre 20 Coupland 87 Baron Greystoke 73 John de Wigton 12 Hugh of Multon 40 John de Castre 40 Robert de Tyllol 11 John of Lancaster 38 Kendal 120 Richard de Kirkbride 10 Robert Clifford 58 14 BL Add. MS 8835, fo. 73. 15 Parl. Writs, i, 379–80.

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marches that were used in this way. Pay records suggest that the forces raised from the liberties remained as distinct units in the armies once they assembled. In 1311 the archbishop of York was asked to provide 100 men from his liberty of Hexham; John de Vaux was to lead them to Roxburgh. In the following year the ‘parts’ of Richmond and Craven received separate treatment within Yorkshire.16 In 1327 the abbot of St Mary’s York asked for the men of his liberty to be recruited separately; as the army mustered at York he was in a good position to do this, and the request was duly acceded to.17 Slightly later, in 1333, separate commissioners were appointed in the country for the honours of Knaresborough and Tickhill, the lordship of Wakefield, the honour of Richmond, and the liberties of Beverley, Howden, Holderness, Pickering, Northallerton, Ripon and Whitby, as well as for a number of wapentakes. The same pattern was followed in the next year.18 However, in 1335 the commissions were to wapentakes, not liberties, and instructions for the recruitment of 400 mounted archers, all wearing the same uniform, went to Yorkshire as a whole. In 1336 the instructions for Yorkshire went to the three ridings, not to any subdivisions.19 In 1338 Thomas Ughtred was commissioned to raise a smallish force of 120 hobelars and 240 archers in Yorkshire. Sub-commissions were appointed, to liberties and wapentakes, some of which were for very small numbers of troops. The liberty of Whitby, for example, was to produce two hobelars, two mounted archers, and two foot archers. The liberties identified in these commissions were those of: Tickhill, Beverley, Richmond, Whitby, Holderness, Knaresborough, Osgotcross, and St Mary’s, York. In the event, the Holderness men were allowed to stay at home, because of the fear of French attack.20 The lists of units did not always remain the same, and might simply list wapentakes and liberties together; thus in 1344 one commission was appointed for the wapentakes and liberties of Herthill, Howden, Ouse and Derwent.21 It was largely the liberties of Yorkshire that were treated in this way, along with those of the Welsh March. Further south, commissions were made on a county basis, as in the past, and there is no indication of how any subdivision was done. Why Yorkshire received this special treatment is not clear. Size may be one reason, though it would have been possible to go down to the level of the ridings, and no further. It may be, too, that once a tradition of recruitment by relatively small units was established, it was simplest to continue with it. It seems likely that the initiative came from the county, rather than from central royal administration. It is difficult to know how successful this method of recruitment was. Matters did not always go smoothly when recruitment made use of liberties. In 1336 John de Wanton and William de Slingsby were appointed to recruit in the liberty of Knaresborough; William Mos, Adam Shut and others refused 16 17 18 19 20 21

Rot. Scot, i, 101. Ibid., i, 214. Ibid., i, 142–3, 287–8. Ibid., i, 361, 383, 424. Ibid., i, 549–50, 552. Ibid., i, 653.

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to go to join the army, and orders were issued for their arrest.22 It seems likely, however, that it did make more sense to recruit on the basis of relatively small local units, rather than to issue commissions for the entire county of Yorkshire. Further north, it is surprising to find that the liberties of Northumberland were not normally treated separately for recruitment purposes. The separateness of Hexham, evident in pay rolls from Edward I’s reign, did not continue, but in 1334 recruitment from North Tynedale and South Tynedale was distinct from that for the rest of the county.23 In 1337 Tynedale was again treated separately, when Richard Talbot was ordered to conduct an array there to ensure than men were all properly equipped.24 These, however, were exceptions; recruitment in Northumberland looked very different from that which took place in Yorkshire. There was very little use of commissions of array in the county of Northumberland. There were two probable reasons for this. One is that in the highly militarised society of the north it may have proved sufficient to rely on knights and men-at-arms to bring archers as part of their retinues. The other is that it may have been judged inadvisable to recruit by means of these commissions in the county, since men were needed for local defence. The relative absence of commissions did not mean that substantial numbers were not recruited from Northumberland; in June 1337 Richard Thirlwell, with three associates, led a force of 580 hobelars, a dozen mounted archers and eight footsoldiers from the county.25 Men were of course arrayed, under the traditional terms of the assize of arms, to ensure that they had appropriate military equipment, but this did not involve collecting them at one or more mustering points, and marching them off to join royal or other expeditions. In 1337 orders were issued that everyone in Northumberland capable of bearing arms should accept orders from the earl of Warwick, but commissioners of array did not muster the men of the county.26 Interestingly, when instructions were issued for arraying to take place in 1344, in Yorkshire the appointments were made at wapentake level, with Ripon, Knaresborough and Richmondshire all being separately treated, whereas Cumberland and Westmorland were treated as a single unit, as was Northumberland, where the responsibility was given to Robert Fenwick, the sheriff, John Fenwick, and William Heron.27 The most exceptional liberty was, of course, that of Durham. The rights of the palatinate were on a different scale to those of other liberties, and here the formula of tam infra quam extra libertates could not be applied, for the whole county of Durham was a liberty. In addition, there was the issue of local custom. The men of the Haliwerfolk (some, but not all, of the inhabitants of the palatinate) claimed that they had no obligation to do military service, and specifically 22 23 24 25 26 27

Ibid., i, 454. Ibid., i, 327. Ibid., i, 495. BL Cotton MS Nero C. VIII, fo. 261v. Rot. Scot., i, 499. Ibid., i, 657.

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that they were exempt from any requirement to fight beyond the boundaries of the see of Durham. Should they do so, service was strictly voluntary. Save in the exceptional circumstances of a confiscation, the crown did not appoint commissions of array to recruit within the palatinate. In Edward I’s reign, when troops were needed for a winter campaign in 1299–1300, the king simply asked Bishop Anthony Bek to provide 5000 or 6000 men (a massive request). He sent a royal clerk to assist in the task of recruitment, but the process was left in the bishop’s hands. The result was disaster. The men of Durham mutinied, and the campaign was aborted. Later, when the palatinate was in royal hands as a result of the king’s celebrated quarrel with Bek, Edward set up a normal commission to recruit within it, though he sensibly used local men to head it, in the form of John FitzMarmaduke and Robert Hansard. Even this measure failed to sweeten the pill, and John of Brittany had to be sent to sort matters out with the local community. Thereafter the separate quality of Durham was recognised, and no direct crown recruitment took place within the palatinate. Instead, requests for troops were made of the bishops. In 1313 as many as 1500 archers were requested, but this was an abnormally large number.28 On occasion, promises were made when requests were made for military assistance, that no precedent would be made of them.29 In 1335 Durham was asked for 100 hobelars and 300 archers, with a supplementary request for an additional 100 hobelars. In the following year identical writs were issued for Durham and Chester, each to produce 200 hobelars. Norhamshire was treated as separate in 1335, and not as part of Northumberland, when the bishop was asked to array troops there.30 Evidence for 1336 enables one of those who led Durham archers to the war in Scotland to be identified, for the payroll shows that a troop of 189 mounted archers was commanded by John de Heworth. Other evidence shows that he was a Durham Priory tenant, who built up a huge holding between 1315 and 1345. He accumulated over 280 acres, not all of it with proper authority. There must have been many who suffered as a result of his success, but clearly he was the kind of thrusting man who was of the right calibre to command in war.31 Other evidence from payrolls shows that in 1337 John de Lisle and John fitzRalph, knights, led a force of five men-at-arms, 114 hobelars and five mounted archers from Durham, while Adam de Hollingside with a dozen hobelars led 92 mounted archers. Walter Mason headed a further contingent of 48 archers.32 Recruitment within the palatinate appears to have been by commissions of array, as in the rest of England. There is a record of commissions set up in 1346; four men were appointed to each ward, with the exception of three for the east ward of Sadberge. These commissions, however, were for array under the terms of the 28 29 30 31 32

C.M. Fraser, A History of Anthony Bek (Oxford, 1957), 178, 186; M.C. Prestwich, War, Politics and Finance under Edward I (London, 1972), 103, 235; RPD, iv, 112. Ibid., iv, 128, 173. Rot. Scot., i, 330, 349, 389, 413. Halmota Prioratus Dunelmensis, ed. W.H. Longstaffe and J. Booth (Surtees Soc. 82, 1889), 14–16; BL Cotton MS Nero C. VIII, fo. 258. BL Cotton MS Nero C. VIII, fos. 261v, 263.

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statute of Winchester, to raise men for defence against the Scots.33 Durham’s palatine status did not give its inhabitants freedom from contributing significantly to the English armies that fought against the Scots. The crown did not regard the palatinate of Durham as an invaluable bastion against the Scots, which should be left inviolate. This is very clear from events in 1316, when Jack the Irishman seized Barnard Castle and the manor of Gainsford, while Robert of Clitheroe, escheator in the north, took Hart and Hartness. In both cases the men acted under the authority of a royal warrant, and there was a nice legal issue as to what rights the crown had to act in this way. The property taken by Jack the Irishman had been held by the earl of Warwick, while Hart and Hartness were part of the Brus inheritance. In 1327 the rights of the palatinate were restored, but this was a political move, not part of any military strategy for the defence of the north.34 When it came to a moment of crisis, as the crown saw it, in the mid 1340s with the serious threat of Scottish invasion, there was no respecting of liberties, or account taken of their identity. In 1345 a commission consisting of Henry Percy, Thomas Wake of Liddel, John de Mowbray, Ralph Neville, Thomas Rokeby, Robert Bertram and William Heron was appointed to array all menat-arms, hobelars and archers in both Yorkshire and Northumberland, while another commission headed by the bishop of Carlisle had similar powers for Cumberland and Westmorland.35 Durham was not included, but in 1346 the archbishop of York, the bishop of Durham, Henry Percy, Ralph Neville and Thomas Rokeby were given powers that extended not only over Yorkshire and Northumberland, but also specifically over the liberties of Durham, Norham, Tynedale and Hexham. No doubt the fact that the bishop of Durham was one of those commissioned sweetened the pill for the men of the Haliwerfolk, while a letter to the queen promised that no precedent would be made of this as far as Tynedale was concerned.36 The fact remains that any rights the liberties might have had could be swept aside by the crown as far as military affairs were concerned, in times of necessity. This question of military service is a small element in the history of the English medieval liberties, but it is significant. The evidence offers little support to the view that the liberties of the Welsh March and the north were set up and maintained because of their military strength; a different explanation of their origins is needed. It demonstrates, rather, a way in which the crown might make use of liberties when appropriate; this was not the product of any theoretical legal discussion of their status, but it was simply that in some cases it proved suitable to use them for recruitment purposes. This was because it was one of the most effective ways of getting troops of reasonable quality. In the north, it was in Yorkshire above all that the liberties were used for recruiting purposes. 33 34 35 36

RPD, iv, 269–71. Ibid., iv, 129–39,167–71. Rot. Scot., i, 665. Ibid., i, 669, 671.

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Durham, the greatest liberty, presents rather different problems, for here alone the crown could not override the rights of the liberty when recruiting men for the wars. The use of liberties for recruitment bears on the question of the sense of identity, and helps to show that they were much more than legal entities. The recruitment of men from liberties, who then remained together in the field, suggests that there were local solidarities which it made sense for government to use to its advantage. The decisions were pragmatic, not borne of principle. It was not a question of taking account of the jurisdictional rights that defined a liberty, but rather of taking advantage of the broad sense of local identity within a liberty, and of the lordship that was exercised there.

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7 Neighbours from Hell? Living with Tynedale and Redesdale, 1489–1547

CLAIRE ETTY

In 1495, Henry VII abolished Tynedale’s liberty status and annexed it to the county of Northumberland. Its inhabitants, often ‘allied with the Scots, the ancient enemies of this realm, have … committed and done, and still daily and nightly commit and do, great and dreadful murders, treasons, robberies, felonies, depredations, riots and other great offences upon the king our sovereign lord’s true and faithful liege people and subjects … within the counties of Northumberland, Cumberland and Westmorland, Hexhamshire, the bishopric of Durham and in a part of Yorkshire … [who] cannot be at all secure in their bodies or goods, or even reside in their own houses, but may either be murdered or taken and carried off into Scotland and there ransomed to the great damage of their body and goods and their complete impoverishment forever’. But it was beyond the power of statute to reform the ‘surnames’ of Tynedale. In 1522, John Kite, bishop of Carlisle, the king’s agent in the North, confirmed that, along with their fellows of Redesdale (which enjoyed liberty status until 1536), they committed ‘more theft, more extortion … than there is by all the Scots of Scotland’, so that ‘no man which is not in a hold strong hath or may have any cattle or movable in surety through the bishopric till we come within eight miles of Carlisle; all Northumberland likewise’. By this time, his complaints would have made thoroughly familiar reading at Westminster.  

I am grateful to Dr Andy King for reading and commenting on various drafts of this article. R. Horrox (ed.), ‘Henry VII: Parliament of 1495, Text and Translation’, in The Parliament Rolls of Medieval England, ed. C. Given-Wilson et al. (CD-ROM, Scholarly Digital Editions (Leicester, 2005)), item 49. It should be noted that all references to ‘Tynedale’ below refer to North Tynedale, in line with contemporary sources. South Tynedale was not occupied by surname groups and was not comprehended in the official view of ‘Tynedale’ (R. Robson, English Highland Clans: Tudor Responses to a Medieval Problem (Edinburgh, 1989), 6.  C. Etty, ‘Tudor Revolution? Royal Control of the Anglo-Scottish Border, 1483–1530’ (unpublished Ph.D. thesis, Durham, 2006), 85–6.  BL, Cotton MS Caligula B.I, fos. 39–40.  For previous complaints, see inter alia, LP, ii, 63; TNA, SP 1/16, mm. 313–14; E. Charlton, Memorials of North Tynedale and its Four Surnames (Newcastle, 1871), 36–7.

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Around 1498, there had entered into the official vocabulary a new term to describe certain families inhabiting Tynedale and Redesdale – ‘surname’. There were more inhabitants in both places than the poor land ‘may sustain to live truly’, explained a royal survey of 1541. Problems caused by demographic growth were probably exacerbated (at any rate in Redesdale) by the practice of partible inheritance, which produced subdivided holdings insufficient to support the heirs. Branches of a family lived together, ‘in some places … three or four households’, under the protection of their headman, who accounted for their collective offences. The crown was heavily dependent on the horsemen of Tynedale and Redesdale for its prosecution of war against Scotland. But with the scaling-down of military activity in the fifteenth century, this opportunity to supplement their income legitimately with wages and government-approved plunder waned correspondingly.10 Changes in the border administration from the late fifteenth century may also have reduced its capacity to keep the inhabitants of North Tynedale and Redesdale in line.11 Their more ‘respectable’ Northumbrian neighbours, it seems, were the victims. The invention of the epithet ‘surname’ – a label which marked out as ‘other’ those to whom it was applied – can be seen as part of a downward slide in the reputation of the inhabitants of Tynedale and Redesdale. By 1538, the former were routinely described as ‘the thieves’ on a muster roll of 1538 (a purely military record),12 and by mid-century it is suggested that royal officials regarded them as ‘wild men’ and ‘degenerate’ – in fact ‘a species of homo silvestres’.13 Yet their antics were no new problem. The same message had been coming out of Northumberland since the early fifteenth century: in 1414, 1421 and 1445, its gentry complained of the ‘murders, treasons, homicides, robberies and other misdeeds’ committed by the ‘evildoers, robbers and highwaymen dwelling in the lordships of Tynedale and Redesdale’, who robbed, mutilated and slew the

  



10 11

12 13

The first recorded usage of the term ‘surnames’ is in a royal precept to the sheriff of Northumberland in that year: CPR, 1494–1509, 160. BL, Caligula B.VIII, fo. 63. This custom was certainly practiced in the manor of Harbottle by the early seventeenth century, but the evidence is less clear-cut for Tynedale; see S.J. Watts, ‘Tenant-right in Early 17th-century Northumberland’, Northern History 6 (1971), 68–70. However, cf. J. Thirsk (ed.), The Agrarian History of England and Wales (Cambridge, 1967), iv, 9–10; Robson, English Highland Clans, 40–1; Calendar of Letters and Papers relating to the Affairs of the Borders of England and Scotland, ed. J. Bain, 2 vols. (Edinburgh, 1894–6), i, 50; ii, 131. Sir Robert Bowes’ ‘Book of the State of the Frontiers and Marches’, in J. Hodgson, History of Northumberland (Newcastle, 1828), iii (ii), 230–1, 243. S. Ellis, Tudor Frontiers and Noble Power: The Making of the British State (Oxford, 1995), 63–4. M.E. James, Change and Continuity in the Tudor North: The Rise of Thomas, First Lord Wharton (York, 1965), 10; Robson, English Highland Clans, 46–7. See Ellis, Tudor Frontiers, 61. Robson suggests that the death of the fourth earl of Northumberland in 1489 removed the personal influence of the traditional Percy warden, which, he argues, may have been holding the surnames in check until then (Robson, English Highland Clans, 70). Archeologia Aeliana, 1st ser., 4, 181. Recruits from South Tynedale are listed in a different section. Ellis, Tudor Frontiers, 68, 71, 74.

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king’s more law-abiding subjects.14 Their subsequent absence from parliamentary records until 1495 is unlikely to have heralded their reformation. In 1446, the prior of Durham wrote to the keeper of Redesdale, John Heron of Chipchase, complaining about the inroads which Redesdale thieves had made upon his cattle.15 He sent a like tale of woe to Heron’s successor, Sir Robert Ogle, in 1450. In 1474, the prior took a similar complaint of ‘the thieves of Tynedale’ to John Morton, master of the rolls. If they were not known as ‘surnames’ until Henry VII’s reign, their neighbours had evidently long since come to dub them ‘thieves’.16 However, the relationship was not always so clear-cut, nor was the line between victim and aggressor so easily drawn. In fact, it was a continually expressed source of mortification to the king’s officers that, as Sir William Eure, lieutenant of the middle march, put it in summer 1525, ‘the gentlemen of this country should liefer have the favours of the thieves than to take any of them’.17 In 1538, Sir Reginald Carnaby, keeper of Tynedale, admitted similarly that, although on the one hand many of Tynedale’s neighbours had suffered the loss of goods and cattle, on the other they had ‘so long favoured thieves and evil doers that, without some great punishment, it shall be hard to reform … their accustomed misdemeanours’.18 Nor did the king’s border officers themselves always remain innocent of connections with the surnames – for while restraining their activities came to loom large amongst their duties in peacetime, they were still very necessary allies in any military action against the Scots. No example can better illustrate this than the history of Thomas, Lord Dacre’s dealings with the surnames. Appointed warden-general of the marches in 1511, Dacre was an unpopular ‘stranger’, with few friends or resources within Northumberland, and unable to depend on the inhabitants of the east and middle marches. Thus he was forced to rely heavily on his native west march, and his shadier connections with the surnames.19 However, his relationship with the inhabitants of Tynedale and Redesdale probably predated this, for in 1494, along with other members of the border command, he had entered into an indenture concerning their breach of the truce in attacking and burning the lands of the priory of Canonbie, in the Debateable Land. In 1502, Dacre was appointed lieutenant of the middle march;20 and it was probably then that Sir George Tailboys, lord of Redesdale appointed him keeper of the liberty and constable of Harbottle.21 Dacre was later discharged of these offices, probably surrendering them to Edward Ratcliffe and Roger Fenwick, in 1507, when they replaced him as lieutenants of the middle

14 15 16 17 18 19 20 21

C. Given-Wilson (ed.), ‘Henry V: Parliament of 1414’, item 20; ‘Parliament of May 1421’, item 22, The Parliament Rolls of Medieval England; CPR, 1446–1452, 137. Historia Dunelmensis Scriptores Tres (Surtees Society 9, 1839), app. cccix. Priory of Hexham, i (Surtees Society 44, 1863), app. cv–cvi. TNA, SP 1/35, 60. TNA, SP 1/140, 132 Etty, ‘Tudor Revolution?’, 136. CDS, iv, 1683; TNA, E 403/2558, mm. 101, 108v, 116. LP, i, 131; TNA, E 36/214, m. 478.

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march.22 However, under Henry VIII, Dacre once again took charge of Redesdale, from his appointment as warden-general in 1511, until William Heron was granted the office in 1523.23 Little evidence survives to illustrate Dacre’s relationship with the surnames in his first term as keeper of Redesdale. The sources are somewhat less reticent about his second. In June 1518, after being peppered with ‘diverse letters’ on the subject of the depredations committed by the men of North Tynedale and Redesdale within the bishopric, Thomas Ruthall, bishop of Durham, ordered his chancellor, William Frankeleyn, to hold a peace session, at which those who had suffered their attentions since 1509 might present bills of complaint. Frankeleyn expected that three or four hundred persons would attend to ‘make exclamations’ of keepers Fenwick and Dacre; and he intended to demand immediately afterwards that all indicted persons remaining under their rule should be delivered to him for trial.24 Perhaps in response to his chancellor’s reports, Ruthall complained to Wolsey (a custodian of the lands and person of Sir George Tailboys, lord of Redesdale, since 2 March 1517)25 of the injuries done to his tenants by those who lived under Lord Dacre’s rule, and requested that Dacre should be ordered to produce all offenders at the assizes that August.26 Dacre’s neighbours in Northumberland were no less convinced that the 22

23

24 25 26

Edward Ratcliffe and Roger Fenwick were paid as lieutenants of the middle march at Michaelmas 1507 (TNA, E 403/2558, m. 142). In a memorandum of 1525, listing ‘such as hath the rule of the county of Northumberland, and keepers both of Redesdale and Tynedale’, Ratcliffe and Fenwick are described as having exercised the latter offices, ‘with the fees accustomed’ (BL, Caligula B.VI, fo. 476). The articles of accusation drawn up against Dacre by the inhabitants of Northumberland in 1524–5 state that Dacre had been keeper of Redesdale ‘ten years and more to now of late’ (Hodgson, Northumberland, III, i, 31–40) and a memorandum of Sir William Eure, who occupied the office in 1525, stated that Dacre had previously held it for twelve years (Caligula B.VI, fo. 476). Dietrich does not include Dacre’s occupation of the keepership during this period in her table (S.C. Dietrich, ‘Liberties and Lawlessness: Reiver Society in Tudor Tynedale and Redesdale’ (unpublished Ph.D. thesis, Cornell University, 1973), 150); and Robson (English Highland Clans, 230) suggests that it was exercised by Sir William Heron (under Dacre) between 1511 and 1523. However, there is no evidence that Heron was associated with the office before August 1523 (BL, Add. MS 24,965, fo. 30). Some confusion has been created by Charlton’s dating of a letter in which Heron’s appointment is referred to (Memorials of North Tynedale, 33). It probably belongs to 14 February 1525 rather than to that date in 1514: references to Dacre’s ‘small friends’ of Northumberland ‘coming home’, and boasting that Dacre must ‘make restitution’ to all those injured by the inhabitants of Tynedale or Redesdale suggests a date after 7 February 1525, when Dacre was convicted of ‘bearing of thieves … negligence in punishment of them and … familiar and conversant bearing with them knowing them to have committed felony’ (BL, Lansdowne I, fo. 105), and was indeed ordered to make such restitution. LP, iv, 3022. TNA, SP 1/16, mm. 313–14. LP, ii, 2979. LP, i, 1924. This is misdated in LP to 1511; however, references to the death of ‘young Grey’ (Thomas, son and heir of Roger Grey of Wark and Chillingham) date it to after 2 August 1517 (C 142 33/11; Dean and Chapter Muniments, Durham, Register III, fo. 42; Northumberland County History, 15 vols. (Newcastle upon Tyne, 1893–1940), xiv, 328). The fact that ‘August’ is referred to, rather than this ‘instant’, or ‘present’, month suggests that the letter was written the following year. Since Frankeleyn’s report, written 19–25 June 1518, also deals with the Grey inheritance, and suggests that Thomas, Lord Darcy, and William, Lord Conyers, should be joined in commission with king’s justices to enquire about the activities of the Tyne-and-Redesdalers, it is probable that Ruthall wrote his letter in response to this.

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rampages of the surnames were due to the negligence of their keeper. In 1523, Sir William Eure, Dacre’s deputy in the middle march; John Widdrington of Widdrington; Sir Cuthbert Radcliffe of Cartington and Dilston; John Horsley of Horsley; and Lionel Grey drew up a list of ‘things necessary … for the ministering of justice within … Northumberland’. They urgently recommended that the keepers of Tynedale and Redesdale should be bound by sufficient securities to ensure the effectual performance of their offices.27 That July, Nicholas Thornton of Witton (which lay two miles from Redesdale) attempted to persuade certain tenants of the abbot of Newminster to ‘deliver unto [him] such bills of complaining as they had to give against Thomas Lord Dacre of the inhabitants of the liberty, offering them that if they would so do they should have them filed’. Neither the tenants’ initial reluctance, nor Thornton’s attempt to overcome it with the bribe of a cow apiece, alters the fact that a growing section among Dacre’s gentry neighbours in Northumberland evidently laid the blame for the surnames’ actions at his door.28 Thornton had probably suffered personally from their attentions, for an undated memorandum of misdemeanours in Northumberland records that he had captured one ‘Hodde’, of the principal Redesdale surname of Hall, in the act of stealing.29 When Thomas Howard, duke of Norfolk, was sent back north in 1524 to execute ‘extreme justice’,30 Dacre’s ‘small friends’ of Northumberland took their opportunity.31 That September, a group of them submitted a bill complaining in the strongest terms about Dacre’s too-close relationship with the surnames and its deleterious effect on law and order. A copy of a later version of this bill survives, with Dacre’s responses attached.32 In general terms, it abuses him as a ‘bearer and maintainer’ of thieves,33 and complained that, as keeper of Redesdale, he had permitted his charges to despoil the inhabitants of the east and middle marches without lifting a finger to prevent this or punish them, ‘but willingly hath suffered the said thieves to continue their said robberies and other misdemeanours’.34 As testimony to this, they dug up a seven-year-old incident which had caused Dacre some degree of embarrassment at the time. In autumn 1518, when Dacre was still keeper of Redesdale, ‘diverse great and notorious thieves of Redesdale … 27 28 29 30 31 32

LP, iii, 3286. BL, Add. MS 24,965, fo. 170. Ibid., 169. A task which he had been permitted to ‘defer for a season’ the previous year (LP, iii, 3241). As Dacre described them in April 1524 (BL, Add. MS 24,965, fo. 239). Hodgson, Northumberland, iii (i), 31–40. This is probably not the original bill made against Dacre, which was presented to the duke of Norfolk in September 1524. Henry and Wolsey made several criticisms of this bill: that the gentlemen’s complaint ‘extends not unto any special particulars of the matter wherein they pretend to be grieved but under general words’; and their affirmation that ‘they cannot nor will ever be contented to be ordered by the said lord Dacre but rather to depart the country’, which touched upon their allegiance to the king (BL, Caligula B.I, fos. 334–6). Since neither of these objections apply to this document it is probably a second version, produced in response to them. Since this version also includes Dacre’s responses, it may belong to Dacre’s trial, which took place before the king and council in January 1525 (BL, Lansdowne MS I, fo. 105). 33 Hodgson, Northumberland, iii (i), 31. 34 Ibid., iii (i), 32.

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taken for their offences and conveyed towards Morpeth by the commandment of lord Dacre … were feloniously rescued by their friends and adherents from the king’s true subjects conveying the same thieves’, four or five of whom were killed, and several carried off to Scotland. ‘The said offenders’, claimed his accusers, ‘at this day rest unpunished with the said lord Dacre.’35 In his own account of the affair, sent to Wolsey that December, Dacre agreed that he had arrested ten of the ‘most principal and arrant chiefs’ of Redesdale and imprisoned them at Harbottle. He had then sent them off under a guard composed of various members of his household, to be delivered to the gaoler and bailiffs of Northumberland at Rothbury Gate (whence, presumably, they were bound for Morpeth). It was then that the Redesdale rescue party attacked, and Dacre’s own bailiff of Morpeth was among those killed. Twelve of the miscreants had since hightailed it to Scotland (and thus were obviously beyond his reach); others had ‘fled in other parts where as yet they are not known of ’; and Dacre had taken sureties for the behaviour of ‘diverse other persons that came to the same affray’.36 The one prisoner whom Dacre had kept at Harbottle, Thomas Pott, had been executed. Since Dacre’s own men were killed, it seems unlikely that he had colluded in the Redesdale escape, but his inability to avenge their deaths suggests his incapacity to discipline the surnames – whether because he owed them good lordship, or because it was simply beyond his power. As warden, Dacre was also held responsible for Tynedale. Indeed, in 1550, he was referred to as having been its keeper.37 In his neighbours’ opinion he had also allowed the behaviour of its inhabitants to degenerate, and ‘in default of correction, using them in his company, familiarly emboldened them in the same misdemeanours to the great hurt of the said good country’.38 There are also more specific accusations of relationships between Dacre and certain Tynedale surnames. The warden was accused of favouring the Armstrongs, who straddled the Anglo-Scottish border. By virtue of his office, Dacre gave licence to the Scottish Armstrongs to frequent Carlisle, where, his accusers claimed, they made ‘appointments with English thieves, their fellows and adherents, and with them conspire and appoint divers robberies and other misdemeanours which they after come and do from time to time unto the king’s true subjects dwelling in other good countries in those parts’.39 A connection with the Armstrongs is also suggested in other sources. In 1525, it was reported that a certain Long Sym Armstrong of Tynedale ‘said openly … when he was sitting at the drink before the most honestest persons in Carlisle’, that Sir William Eure and Sir Ralph Fenwick should have ‘other thing to think of than to lie with garrison there, for there should no man bear rule there but the lord Dacre and his as long as he and his live’. Long Sym and his friends, the report concluded ‘have all

35 36 37 38 39

Ibid., iii (i), 38. Charlton, Memorials of North Tynedale, 36–7. Ibid., 227. Hodgson, Northumberland, iii (i), 32–3. Ibid., iii (i), 34.

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wettell [victuals] in Carlisle at their pleasure daily’.40 Or in other words, Dacre, whose rule of Carlisle was as yet unchallenged, was maintaining this particular branch of the Armstrongs. However, the most telling ‘proof of favour borne by the said lord Dacre to thieves’ which his accusers produced was his relationship with the Charlton surname. Of late, Cokes Charlton, ‘the most notable thief in those parts’, indicted ‘of many and diverse felonies’, had been ‘brought to the bar of Morpeth’ at the peace sessions held there. When no charges were entered against him, Dacre returned Cokes to his castle of Morpeth; subsequently a gang of the prisoner’s Tynedale fellows broke into the castle and rescued him, along with several other felons, since which time he had committed further ‘abominable thefts and other offences within the said country’. Thus far, Dacre’s account tallied with that of his accusers. However, while they claimed that Dacre had prevented those who attended the sessions from entering bills against Cokes, and would not allow him to be arraigned or justified for his offences, Dacre argued that no charges had been presented.41 It was also alleged that Dacre was ‘familiarly and daily conversant’ with Hector Charlton, ‘one of the greatest thieves in those parts’, and a member of the group of outlaws which had been terrorising Northumberland for over a year. At Hector’s request, Dacre had handed over two thieves, taken near Lanercost in Gilsland (Cumberland), for whom Hector had subsequently extracted a ransom of 20 nobles from their friends.42 In April 1525, the testimony of Edward Todd of Bellingham, parish priest, provided further evidence linking Dacre to Hector.43 Todd reported that on Easter Sunday, Hector defied Wolsey’s interdict against the surnames, and brought a Scottish friar to Bellingham church to administer communion to himself and his followers, utilising a Sacrament, firkin of wine and breads purloined by Hector the previous day. Hector loudly proclaimed that ‘he did no thing since the departure of lord Dacre, his master, but that it was his pleasure and commandment’, and boasted of the chummy relationship which he and his brother, Gerard Charlton of the Bower, enjoyed with him: they kept company together ‘to espy bawds, that he may cause the lord Dacre laugh when he comes home’.44 Following Dacre’s imprisonment in February 1525,45 Edward Charlton of Hesleyside, headman of the principal branch of the Charltons, provided further

40 41 42 43

BL, Caligula B.II, fo. 276. Hodgson, Northumberland, iii (i), 39. Ibid., iii (i), 38–9. The incident is reported in a letter addressed to Wolsey by his Durham staff, Frankeleyn, Sir William Bulmer, Sir William Eure, Sir Thomas Tempest and John Bentley, dated 27 April 1525 (LP, iv, 1289). 44 TNA, SP 1/35, m. 22. Robson (English Highland Clans, 80) suggests that this was a fabrication on the part of Edward Charlton, headman of the Hesleyside branch of the Charltons, ‘henchman’ of his landlord, the fifth earl of Northumberland, deliberately designed to incriminate Dacre as part of a wide-ranging plot to force the king to return the Percys to authority in the east and middle marches. However, there is no evidence that Edward was involved procuring Todd’s testimony, or indeed, that he was acting for the Percys at this time. 45 See note 22.

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evidence of the former warden’s shady dealings with outlaws from his surname. He informed Sir William Eure that one John Charlton had openly stated that Dacre’s brother, Sir Christopher, would give their band warning ‘ere he raid of them’.46 Edward Charlton had reason to bear a grudge against Dacre, for in May 1524, the latter had executed his kinsmen, William Charlton of Bellingham and Roger Charlton.47 Nevertheless, Anthony Fitzherbert and William Frankeleyn certainly believed that Sir Christopher could capture the outlaws ‘if he will put thereto his exact diligence’. They planned to trick him into doing so by causing a letter to be written to him in Dacre’s name, ‘straitly commanding and exhorting him to take Thomas Charlton of Carriteth, and such other of their principal captains as the lord Dacre best knows by name’.48 Dacre, who was still in custody, should be prevented from communicating with any of his countrymen or servants, in order to prevent the ruse from being detected. Dacre had captured Thomas of Carriteth in May 1524, at the same time as he arrested William Charlton of Bellingham, and his brother Roger.49 However, Thomas was acquitted of the charges brought against him at a peace session that July.50 Presumption of his innocence is rather undermined by his activities the following March, as one of the principal captains of a band of over 200 thieves hailing from Tynedale, Bewcastledale and Gilsland.51 Similar complaints were made about Dacre’s countenancing of the surnames’ acivities in his capacity as Wolsey’s steward of Hexham.52 In 1550, it was remembered that Tynedale men had successfully carried out a prison-break at the tower of Hexham, when it was under Dacre’s rule.53 In 1523, Eure’s ‘necessary reformations’ included a recommendation that Dacre be removed from the post of bailiff of Hexham, and Sir Ralph Fenwick, keeper of Tynedale, appointed in his place.54 By April the following year, Wolsey had received sufficient information about Dacre’s negligence to administer an official reprimand: ‘in many places, amongst others [the] lordship of Hexham, be daily committed openly robberies in the towns and elsewhere, by persons assembled in great numbers who do not spare in market place to attempt the same’. Dacre was duly exhorted, ‘leaving all favour’, to ‘look more substantially to the repressing of these great disorders’.55 His ‘small friends’ of Northumberland were later to allege that when the Duke 46 47

48 49 50 51 52

53 54 55

BL, Caligula B.II, fo. 274–6. LP, iv, 346. Cuthbert Charlton of Bellingham was Edward’s nephew, and thus William, his predecessor as headman, was probably Edward’s brother. Roger Charlton is identified as William’s brother. If the testimony was indeed invented by Edward, this seems a rather more likely motive than a nebulous long-standing loyalty to the Percys (see note 40). TNA, SP 1/34, mm. 113–14. LP, iv, 326. LP, iv, 482. TNA, SP 1/34, mm. 113–14. Wolsey was translated to York in September 1514 (P. Gwyn, The King’s Cardinal: The Rise and Fall of Thomas Wolsey (London, 2002), 4), and Dacre was acting as steward of Hexham by 27 January 1515 (LP, i, 3170). Ibid., 227. LP, iii, 3286. BL, Add. MS 24,965, fos. 234–235v.

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of Norfolk proclaimed a session of oyer and terminer in 1524, ‘divers thieves’ fled into Hexhamshire, knowing that its liberty status put it beyond the county jurisdiction, and apparently confident that Dacre would be ‘their good lord for their surety’. Sure enough, claimed his accusers, Dacre ‘wilfully suffered them to keep themselves in the said Hexhamshire as in sanctuary’, during which time they ‘oft times came into the presence and company of the said lord’.56 Perhaps the most serious charge brought against Dacre was that he rigged the courts in favour of the Tynedale and Redesdale thieves. Under Henry VIII, the warden of the east and middle marches had regained the domination of the royal justice system in Northumberland which his predecessors had enjoyed during the fifteenth century.57 During his stint as warden, Dacre had the nomination of the sheriff, who, Wolsey noted, was consequently ‘much governed’ by him.58 He equally evidently dominated the commissions of the peace, which seem to have been routinely held at his manor of Morpeth from at least 1518.59 Indeed, Henry and Wolsey had urged Dacre to take the law into his own hands (at any rate when dealing with the surnames) presumably by virtue of his quorum commission of the peace.60 Dacre was thus in an excellent position to offer the surnames good lordship where they most needed it – in their frequent brushes with the law. And it seems that, until Wolsey and the king wrote him some fairly stiff letters, he was doing exactly that. When he captured William Charlton of Bellingham and his brother Roger, Dacre wished to hold them until the assize, some three months later. But on this occasion, the spotlight was very much on the warden, and when Wolsey insisted on him holding a special peace session to deal with the two immediately, Dacre was forced into a show of action. By contrast, where no such pressure was exerted, as in the case of Cokes Charlton, no charges were brought and Cokes ultimately escaped, to commit more ‘abominable thefts and other offences’ in Northumberland.61 Furthermore, Dacre’s ‘small friends’ alleged, and Dacre admitted, that he had taken to examining cases concerning robbery or spoil committed by the surnames in the east or middle marches at Askerton, one of his manors in northern Cumberland, in the west march, which lay a few miles from Tynedale. His accusers claimed that ‘in favour and maintenance of the said thieves’, Dacre heard all cases as actions of trespass, rather than felony (which attracted capital punishment), ‘although the goods were feloniously stolen’. Perhaps more to the point, they argued that the trials themselves were put-up jobs, for Dacre 56 57

58 59

60 61

Hodgson, Northumberland, iii (i), 36. For the Neville and Percy wardens of the late fifteenth century see Pollard, North-Eastern England during the Wars of the Roses: Lay Society, War and Politics 1450–1500 (Oxford, 1990), 163; for Henry VII’s attitude towards the march peace commissions see Etty, ‘Tudor Revolution?’, 110–14. The more so since Dacre’s own retainers and connections from Cumberland were consistently appointed, see ibid., 126–7. In 1518, the Redesdale escapees were on their way to Dacre’s manor of Morpeth, accompanied by the gaoler and bailiffs of the shire, presumably to face trial (Charlton, Memorials of North Tynedale, 36–7). In 1523, Frankeleyn referred to ‘the next sessions at Morpeth’, LP, iii, 3662. LP, iii, 405. Hodgson, Northumberland, iii (i), 39.

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empanelled as jurors twelve of his ‘thieves of Gilsland and Bewcastle, and other places there adjoining’, and the surnames were almost invariably acquitted.62 Dacre’s response to this does not inspire confidence in his innocence. His defence focussed on the nature of the court which he held at Askerton. It was not a manor court, he stated, for he did not hold any such court at Askerton.63 Instead, it was ‘in nature of a warden court’, which he ‘sometimes did keep there and sometimes in other places’. However, if the defendants in question were Englishmen (and there is no suggestion that they were Scots), their crimes against other Englishmen did not fall under the jurisdiction of the warden’s court; rather, they should have been indicted at the quarter sessions and tried at the assizes. Indeed, the charges and procedures described in the accusation belong to the process of common law. Perhaps Dacre was attempting to shield his dealings with the surnames with the greater autonomy which he enjoyed as warden in his own court. Or he may simply have been attempting to cloud the issue by focussing on the nature of the court which he was holding at Askerton, rather than the matter of trial-fixing. In either case, it seems likely that Dacre had indeed brought these cases into the west march in order to ensure that he got the results he wanted – acquittal, or (at the least) conviction for trespass, an offence for which he would not have to execute the perpetrator – and could thus avoid alienating his fellows as he had alienated Edward Charlton in 1524. The obvious candidates for a relationship with the inhabitants of Tynedale were the Percys. The manor of Charlton, belonging to the headman of Hesleyside, was held of the earl of Northumberland.64 The first earl had also enjoyed a relationship with several Redesdale families, for in 1397 he intervened to procure pardons for Henry Dodd of Thornyburn, Robert his brother, and Robert Hedley.65 Indeed, the ‘surname problem’ in the east and middle marches between 1489 and 1528 has been specifically attributed to the absence of an earl of Northumberland from the helm – and the machinations of the fifth earl, presented as stirring up trouble against Dacre in an attempt to force the king into restoring the wardenship of the east and middle marches to his family.66 When the sixth earl of Northumberland was appointed warden of the east and middle marches, he appointed Edward Charlton, headman of Hesleyside, under-bailiff of Tynedale at a fee of 66s.8d.; William Charlton of Lee Hall exercised the same office at 40s.; and John Halle of Otterburn, headman of the principal surname of Redesdale, was listed among those gentlemen whose services were retained at the same sum.67 Thus purchased, loyalty to the Percies enabled Northum62 63

64 65 66 67

Ibid., iii (i), 34–5. A rather transparent lie, as Henry VIII had recently arranged that all the inhabitants of Bewcastle should do suit at it (Ellis, Tudor Frontiers, 96; TNA, SP 1/141, m. 249; Durham University Library: Howard of Naworth MS C/201/2, fo. 7). Robson, English Highland Clans, 57. CPR, 1396–99, 72. See note 10 above. BL, Caligula B.III, fos. 65–7. Edward Charlton’s fee may be the same as that referred to in a bond between Northumberland and Edward made on 9 February 1528, in which the same sum is granted to Edward Charlton of Hesleyside on an annual basis, ‘in consideration of good service and diligent pain

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berland’s brothers, Sir Thomas and Sir Ingram, to recruit the services of the surnames in their bid for control of the county during the Pilgrimage of Grace in 1536. At the Pontefract meeting between the rebellious commons and the Duke of Norfolk, the representatives of Tynedale and Redesdale were none other than Edward Charlton (along with his nephew Cuthbert Charlton, headman of Bellingham), and John Hall of Otterburn respectively.68 However, these connections probably also owed something to the Percys’ ally ‘Little’ John Heron of Chipchase, whose ties with the Charltons, at any rate, were considerably closer than any enjoyed by Sir Ingram and Sir Thomas. Chipchase lay a few miles outside Tynedale, and the family had held royal office in the liberty in the past.69 By 1536, Little John had allied himself with the Charltons of Bellingham and Hesleyside, cementing the relationship with the marriage of his daughter to Cuthbert Charlton, headman of Bellingham and nephew of Edward Charlton of Hesleyside.70 The value of this alliance from Little John’s point of view is clear from the part played by the Tynedale surnames in the Pilgrimage of Grace at his behest. According to the furious account of Sir Reginald Carnaby, deputy-warden of the middle march and keeper of Tynedale,71 Little John’s new in-laws were involved in his engineering of Hexham Priory’s resistance to the dissolution commissioners; he had promised the canons that, for a fee, Edward and Cuthbert would take up their cause, and recruit the whole of Tynedale to ‘live and die in their quarrel’. The two were duly retained as ‘part takers with the house of Hexham’ at twenty nobles a year each,72 and indeed, at their behest, the inhabitants of Tynedale assembled on the pretext of meeting their new keeper, Roger Fenwick. And when Heron took advantage of the situation to press his claim as heir male to the manor of Ford,73 occupying the castle ‘by strong hand’, he was ‘daily accompanied with the chief spoilers of the poor inhabitants of Northumberland’; the Hesleyside Charltons and their followers were at his back.74 In March 1537, two months after his appointment as keeper,75 Roger Fenwick was murdered as he rode to Bellingham to take pledges. The culprits were quickly identified as John Charlton of Blakelaw, Ninian Charlton of the Nuke and John Dodd, members of the Hesleyside Band. That summer, Little John (now imprisoned in London for his part in the Pilgrimage), his son George, and his tenant and

68 69 70 71 72 73 74 75

… for the taking of one Archibald Dodd, late of Tynedale and outlaw and rebel against the King’s highness’ and for his continued ‘diligence and pain for taking outlaws, rebels, thieves and felons and following of trod of true men’s cattle and goods … stolen from time by the said thieves’ (Alnwick Castle Library, Percy Family Letters and Papers, II, Enrolment Book, 1139–1551, fo. 33). LP, xii, 1090. Historia Dunelmensis Scriptores Tres, app. cccix. Hexham Priory, I, cxlii. This is the principal source for the account of Heron’s activities during the Pilgrimage of Grace. For a full account of the Hexham affair, see ibid., i, cxxvii–cxlix. BL, Caligula, B.I, fo. 133. LP, ix, 641. Hexham Priory, I, cxlv; TNA, SP 1/119, m. 104. LP, xii, 222.

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bastard son, John Heron of Hall Barns, were accused of having been ‘of counsel’ in Fenwick’s murder.76 In September, Cuthbert Charlton was executed as ‘one of the causers of the murder … by means of John Heron’. Little John was indicted as an accessory, along with Edward Charlton, and the latter was proclaimed an outlaw, together with the named murderers and Heron of Hall Barns.77 The evidence upon which Little John was suspected of arranging Fenwick’s murder is not given in the surviving sources, but the duke of Norfolk considered it to be so strong ‘that I think at my speaking with the said John Heron, he will hardly deny but the same murder was done by his procurement’.78 Perhaps Little John and his Charlton in-laws resented the part which Fenwick, as keeper of Tynedale, played in the aftermath of the Pilgrimage. He informed the council of Edward and Cuthbert’s pact with Hexham priory; their refusal to make restitution for their thefts; and their ‘confederacy’ with ‘evildoers and misruled persons’ on the Scottish border. It was on this report that the council based its recommendation that Edward and Cuthbert Charlton should not receive annuities from the king, and should rather be ‘apprehended and punished, according to their demerits’, to which the king agreed.79 If Little John himself was not personally involved in the murder, it seems likely that his illegitimate son was. Heron of Hall Barns fled to Scotland, and, along with Edward Charlton, continued to ‘help the Scots of Liddesdale and the outlaws spoil Northumberland’.80 According to local informants, they subsequently returned to Tynedale, where Edward entertained Heron of Hall Barns and Little John’s former servant, Gerard Ridley, to supper at Hesleyside.81 In December 1538, Edward sent a message to Heron of Hall Barns’ mother to warn her to keep in her cattle, ‘for the outlaws and thieves would come in’.82 Norfolk believed that the legitimate line maintained their connection with the outlaws, and that George Heron could ‘take’ his half-brother if he so chose.83 In September 1538, Roger Heron of Corbridge, another kinsman and client of the Chipchase Herons, connived at the escape of one Rowly Charlton, who had been taken as a pledge by Reginald Carnaby, newly appointed keeper of Tynedale.84 76 77 78 79 80 81 82 83 84

TNA, SP 1/121, m. 169; BL, Caligula B.VII, fo. 224; TNA, SP 1/122, m. 23; State Papers, Henry VIII, 11 vols. (London, 1830–52), v, 142. TNA, SP 1/125, m. 120. TNA, SP 1/125, m. 65. Hexham Priory, I, cxlvii–cxlviii; LP, xii, i, 422. LP, xiii (ii), 142. TNA, SP 1/117, mm. 228–9. TNA, SP 1/140, m. 204. LP, xii (ii), 203. LP, xiii, 355, 404. This is probably the Roger Heron who acted as trustee for Sir John Heron’s will: Hedley, Northumberland Families, 2 vols. (Newcastle, 1968), ii, 64–5. Little John had granted him, as his ‘kinsman’, a forty-year lease on the vill of Hallington, which he had obtained from the archbishop of York in 1495. Roger Heron of Hallington held land in Corbridge by right of his wife, Margaret, heiress of William Naddell of Corbridge (Northumberland County History, x, 164); held a perpetual lease of lands and tenements in Corbridge of the church of St Margaret’s, Durham, in 1517 (Archeologia Aeliana, new ser., 2, 38); and leased ‘Heron’s Piece’ in Corbridge from Little John in 1528 (BL, Lansdowne MS, 326; Dodsworth MS 49, fo. 8v). A pardon encompassing John Heron senior, John Heron junior and George Heron of Chipchase, and Roger Heron, late of Hallington, may also belong to this period, but the dating is controversial (Northumberland and Durham Deeds from

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The Heron-Charlton association had evidently survived the abrupt severance of the marriage tie, which left Little John’s daughter a widow. Although no such intimate association bound the Herons of Chipchase to the inhabitants of Redesdale, Sir John Heron, Little John’s father, had acted as Sir Robert Tailboys’ bailiff in the liberty between 1490 and 1493; and there are occasional glimpses of surviving relationships with the more important surnames. In 1524, Sir John had joined with his cousin, Sir William Heron of Ford, in a bond to produce John Hall of Ellishaw at the next assizes at Newcastle.85 Little John was supported by John Robson of Falstone, headman of the Robson clan, in his attempt to rob Sir Reginald Carnaby’s manor of Halton during the Hexham affair, and Geoffrey Robson was named as one of Little John’s friends who assembled at Prudhoe to meet Sir Thomas Percy.86 At this time, Heron occupied Harbottle, and was recognised by the surnames of Redesdale as their keeper; and that December, they informed the king’s appointees, Robert Ogle, John Widdrington and Sir Roger Gray, that they had given in pledges to Heron, and were at his command and that of the Percy brothers.87 The council of the north paid its own tribute to Little John’s influence over Redesdale; in accordance with their advice, his arrest and delivery to London was delayed because his cooperation was essential in bringing the Redesdale men to heel.88 Similar considerations motivated Little John’s release from prison in summer 1539, and subsequent appointment as keeper of Tynedale and Redesdale. In July, John Robson of Falstone (Little John’s old associate) and Gerard ‘Topping’ Charlton (his principal accuser of the murder of Fenwick) abducted Sir Reginald Carnaby, the new keeper of Tynedale. Notwithstanding the king’s angry remonstrances, his recently appointed deputy-wardens, Eure and Widdrington, were unable to secure Carnaby’s release.89 Henry’s riposte was to remove Little John from the Tower and send him home as constable of Harbottle castle. A fragmentary report, assigned to August 1539, relates that an anonymous ‘he’ (almost certainly Little John) said that ‘the keepers of the said Sir Reginald Carnaby be getting home of their hay, and that this twelvemonth there shall not be a time more likely to recover the said Sir Reginald’, and that ‘if the said Edward Charlton would be true and diligent, it were no mastery for him, if he were sent home, to recover the said Carnaby shortly’. Besides, ‘if the said Tynedalers heard … that any noble captain should be sent down to war against them, there is no doubt but they would for the most part all submit’.90 Little John’s associations with the surnames, so recently utilised in open rebellion against the crown, were now to be harnessed for the purposes of law and order.

85 86 87 88 89 90

the Dodsworth MSS. in Bodley’s Library, Oxford (Newcastle upon Tyne Record Series 7, 1929), 112; Hedley, Northumberland Families, ii, 64–5). LP, iv, 683. Hexham Priory, I, cxliii, cxxxi. Ibid., cxxxiv; LP, v, 727. This is dated 1532 in LP, but its contents clearly place it in 1537. BL, Caligula B.I, fo. 133. State Papers, v, 132, where it is wrongly attributed to 1538. TNA, SP1/153, m. 86.

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Edward was duly pardoned,91 and the pair arranged Carnaby’s release with an ease upon which Thomas Wharton, deputy-warden of the west march, could not help commenting.92 In return for a ransom of fifty marks, paid by Carnaby and shared equally between his captors,93 and Little John’s promise to sue for their pardon, they released their erstwhile keeper from durance vile. Edward and Little John thus took their places in the border command; their next task was to secure Fenwick’s murderers and Carnaby’s kidnappers (despite his promises), to which end they were specifically instructed to ‘practise with their friends in Tynedale, Redesdale, and thereabouts’.94 In September, the council of the north reminded Henry that the inhabitants of Tynedale had had no officer to keep them in order since Carnaby’s departure, ‘save only the persuasions of John Heron’;95 by December he seems already to have been acting as keeper; and the following August he was ‘moved by the council on the king’s behalf for the keeping still of Tynedale’. This office he graciously accepted, on the condition that he should combine the office with that of Redesdale.96 Thus the poacher turned gamekeeper. But if Little John used his relationship with the surnames for the crown’s ends, he continued to exploit it for his own. Ill-feeling had festered between the Herons and the Carnabys since Little John’s attempt to rob Halton in 1536, to which crime he had intended to add the murder of Sir William Carnaby (at least according to Sir Reginald Carnaby). Nor did Little John’s appointment as keeper of Tynedale in Carnaby’s place ease the tension. Carnaby retained certain lands and offices which the new keeper considered should belong to the office; namely, the constableship of the former Percy castle of Langley; the farm of the lands of the now-dissolved priory of Hexham; and the stewardship of the former liberty (now in the crown’s hands).97 In September 1540, the privy council had to write to the steward, ordering him to render to Little John the farm of the tithes which had been granted to him, and warning him to obey the keeper in the prosecution of his duties.98 In September 1537, Henry VIII had suggested to Norfolk that the poor opinion which the country held of Carnaby was partly due to ‘an old grudge between him and others there’.99 Evidently, he was referring to the Heron-Carnaby dispute, which, 91 92 93 94 95 96 97

98 99

LP, xiv (ii), 431. State Papers, v, 160. Now named as John Charlton of Lardunborn, his son Percy, and Rynny Dodd, as well as Robson and ‘Topping’ Charlton. BL, Titus F.III, fo. 97. Presumably it was now considered expedient to regard them as cleared of all suspicion of complicity in the murder. Ibid. PPC, vii, 6–7, 19. TNA, E 36, mm. 34, 121. This opinion had already been voiced by the duke of Norfolk in 1537 (State Papers, V, 107) and would be raised again in 1543, The Hamilton Papers: Letters and Papers Illustrating the Political Relations of England and Scotland in the XVI Century, ed. J. Bain, 2 vols. (Edinburgh, 1890), i, 456. It seems to have been something of a favourite device of both Henry, and his father before him, to rein in the independence of border officers by the division of office; see Etty, ‘Tudor Revolution’, 188–219. PPC, vii, 24. State Papers, i, 565.

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by December 1541, had become serious enough to attract the attention of the council of the north. ‘For the better defence and good order of that country and borders thereabouts’, council members Cuthbert Ratcliffe, Ralph Ellerkar, and Robert Bowes made ‘a loving concord and amity (as we suppose like to continue) between Sir Reginald Carnaby, his father and friends, and John Heron and other his friends’. Their neighbours were reported to be ‘much rejoiced, saying that they two, with their friends joining heartily together in one, shall be more able to defend that country against the enterprises and attempts both of Scots and thieves’.100 Such rejoicing, however, would appear to have been somewhat premature. The following year, the council was still referring to Carnaby as Little John’s ‘enemy’, and in February 1543 Lisle wrote in exasperation to Suffolk of the ‘envy, hatred, disdain and malice’ which subsisted among ‘the gentlemen of these parts’. He vowed that ‘one of them would rather see another’s throat cut, rather than they will rise to go to their doors to save their neighbours’ goods’; and the county was riddled with factions and malice ‘as is not (I think) amongst no nation in the world’.101 Subsequent upon Little John’s appointment as keeper of Tynedale and Redesdale, the inhabitants of both liberties provided their own outlawed brethren and their fellows in Liddesdale safe passage into Northumberland to conduct their spoliations there. It can be no coincidence that his enemies, the Carnabys, were the hardest-hit. In June 1541, at the fair of Corbridge, reported Ratcliffe, the inhabitants of both liberties ‘made a great assault and fray of William Carnaby and … hurt him’.102 That October, the men of Liddesdale burnt Little Whittington, a town belonging to Carnaby which lay less than two miles from Halton.103 The following month, a small company of light horse came to Halton itself, and burnt William Carnaby’s corn and houses of husbandry. These invaders were also supposed to have come from Liddesdale, but the Scots subsequently claimed that the greater part of band were Tynedale men. Neither Scots nor English were above blaming their subjects’ cross-border incursions on the other’s countrymen if they could thus avoid conceding reparations, and Ratcliffe, Ellercar and Bowes initially suspected the headmen of Liddesdale of having deputed ‘certain active young men to do the enterprise’, while they established an alibi for themselves. However, the following March, one Charlton, brother of one of those outlawed for Fenwick’s murder, accused Little John of having arranged the affair in order to foment war between England and Scotland, and perhaps (the source is unclear) of harbouring John Dodd, another of the murderers. The council of the North was not keen to credit the report, or even to investigate it. As they pointed out: ‘who should take the charge of [Little John’s] rules in his absence and after him?’104

100 101 102 103 104

Hamilton Papers, i, 105. Ibid., i, 296. Ibid., i, 72. Ibid., i, 92 (2). State Papers, v, 203.

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The exigencies of renewed war, rather any official action, removed Little John from his post. That August, he, among others, was captured by the Scots on a raid made on Haddon Rig in Teviotdale. His son George replaced him as keeper of Tynedale and Redesdale, and according to John Dudley, Viscount Lisle (newly appointed warden-general of the marches), maintained alike his father’s associations with the surnames and his persecution of the Carnabys. In February 1543, Lisle reported that it was the thieves and outlaws’ knowledge of the lack of amity among their near neighbours ‘which makes them so bold upon those quarters’: there had been more harm done in those parts than in all Northumberland – ‘and especially upon the Carnabys’ land’. Later in the letter, Lisle made a more specific accusation – ‘surely this often riding through Tynedale could not be if the keeper did his part, as he hath borne me in hand from time to time that he hath done’. Lisle clearly considered that George’s father had been guilty of similar connivance with the Tynedalers, for that March, his boast of the success enjoyed by the garrison recently posted in the liberty was accompanied by a reminder of ‘how much John Heron was against it’.105 By the following month, the council considered that there was sufficient evidence against George Heron to suspend him from his offices and inform the king of the accusations made against him and his father.106 ‘The whole number of Tynedale’, as well as ‘information taken by witnesses before the king’s council’ testified to George and Little John Heron’s ‘misordering of them in their office, in suffering the rebels to resort in to the country whereof he had the rule … in not apprehending them, neither themselves nor by commandment given to other to do it … and in taking goods from thieves and letting the thieves go, not bringing them to justice, but yet still keeping the goods’. The council of the north, evidently considering that it had the ‘good matter and good proof of it’ which the privy council had demanded, took the Herons into custody, and they were only released upon providing sureties to appear at the Newcastle assizes.107 But the Herons’ case was never brought before a court, perhaps because of the difficulty anticipated by the council of the north in getting a local jury to convict. In accordance with the king’s instructions, they were, nevertheless, deprived of office, fined, and committed to ward. Nor was Little John the first member of Northumbrian political society to retain the services of the surnames in his private quarrels. By the end of Henry VII’s reign, the perennial dispute between the authorities of the city of Newcastle and the prior of Tynemouth had once more reared its ugly head.108 According to the mayor and aldermen of Newcastle, not only was the prior erecting illegal ‘garths and weirs for taking of salmon’, but, regardless of the city’s exclusive right to collect customs, for which it paid some £100 a year,

105 106 107 108

Hamilton Papers, i, 334. LP, xviii, i, 432. Ibid., xviii, i, 549, 567. The story below is taken from the city of Newcastle’s statement to the Star Chamber court which examined the matter in December 1510. STAC Hen VIII, 20/2.

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he ‘charged and discharged ships and other vessels at Shields and Tynemouth aforesaid … and there made a new port and haven’. This had already resulted in several minor clashes, but on 10 February 1510, the prior, evidently meaning business, assembled a large force of ‘lewd and evil disposed persons … to the number of 500 and above, riotously and forcibly armed in harness as though it had been in time of war, with spears, glaives, bows and arrows’. Many of those identified had the surnames of different border clans,109 and were accompanied by a ‘great number of the inhabitants of Tynedale and Redesdale’, whom the prior retained at sixpence a day to attack Newcastle ‘to the intent that the said misdemeaned persons by his commandment should have murdered the mayor, aldermen and other inhabitants of your said town, and to have taken, drowned and destroyed their ships lying in the port of the same’. The prior, claimed this company, had sworn ‘that though they killed one hundred of the caitiffs dwelling at Newcastle, he should be their warrant’. An even more dramatic example is provided by Sir William Lisle of Felton, and his son Humphrey. Lisle also held lands in Broomhope and Woodburn in Redesdale,110 and in 1523, it was reported that Sir William had taken, and then released, John and Ralph Hall, two of the numerous Hall surname of Otterburn, presumably having come to some private arrangement with the pair.111 The following year, Lisle also refused to hand over to the warden two members of the Storey clan from the same liberty, whom he was holding at Alnwick castle, which he held as the earl of Northumberland’s captain.112 In 1526, Humphrey put John Dobson, a servant of Wolsey, into the stocks when he came to Felton to serve a citation on one William Fletcher, perhaps a member of the Fletcher clan of Redesdale. Sir William’s relations with some inhabitants of the liberty seem to have been rather less amicable, as he registered a complaint against them with the duke of Richmond’s council that May.113 But upon their indictment in Star Chamber that summer for riots and seditious words, and their subsequent imprisonment at Newcastle gaol, the Lisles formed an association with fellow-prisoners from Tynedale and Scotland which was to prove the despair of the authorities. The allies broke out of prison and fled across the border into Liddesdale, where Sir William dubbed himself captain of all thieves, both English and Scots. At the head of a band which, by 1528, included Nixons, Wilkinsons, Bewicks and the headman of the Hedleys from Redesdale, and the Charltons, Dodds and Stokhalls of Tynedale, he commenced ‘terrorising’ Northumberland.114

109

110 111 112 113 114

More than a third of the men named (Robert Graham, George Rutherford, Robert Smith, Archibald Brown, John Harrop, Robert Carre, Robert Elwald, John Reed, Thomas Bell, Richard Stokhall, George Waldhaw, Thomas Wilkinson, Richard Milborne and John Davyson) had the surnames of clans from one side or other of the border. Ibid. NDD, 129–30. BL, Add. MS 24,965, fo. 169. Ibid., 226. BL, Caligula B.VI, fo. 484–6. LP, iv, 3421; TNA, SP 1/46, mm. 105–6.

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However, this was no campaign of undiscriminating violence. The majority of specific outrages reported were directed against the men responsible for Lisles’ recent indictment. According to Sir Humphrey’s subsequent confession, the band’s first action was to ride to the manor of Widdrington, six miles from Redesdale, which belonged to John Widdrington, son-in-law of Sir William Ellercar. Ellercar, then sheriff, had arrested Sir William, and Widdrington had himself been a key witness at the Lisles’ indictment.115 They had intended to murder Ellercar, but finding him absent, contented themselves with appropriating forty of his horses. Cheated of their revenge, they first spoiled and then burned his town of Humshaugh in Tynedale. They then attacked Widdrington for a second time. They burned Lynton, a farmstead belonging to Ellercar, stole forty-three cattle and burned the manor of Eshot, which belonged to Roger Heron, another witness against Lisle. While their attentions were by no means confined to the property of these men (the Percy manor of Morwick suffered, among others) in almost every case those who suffered destruction of property (as opposed to opportunistic cattle-rustling) were enemies of the Lisles.116 Like Little John Heron, Sir William Lisle was using surname muscle to even the score. The actions of the prior of Tynemouth, Little John and the Lisles, in using their Tynedale and Redesdale associates as an army with which to pursue their private quarrels, were probably not the norm. Less extreme – but still profitable – connections with Tynedale and Redesdale appear to have been more widespread. Between 1523 and 1525, the Lisles, Sir John Heron, and Thomas Langton of Langley were accused of maintaining thieves from Tynedale and Redesdale.117 In 1537, Sir John Widdrington arrested several Redesdale thieves, let some go and released four from prison, one of whom was one of ‘the most arrant thieves in Redesdale’.118 In some cases, however, the association was driven less by a desire for profit than a simple desire to protect home and property from the surnames’ destructive propensities. In February 1537, Sir Thomas Tempest, a member of the council of the north, wrote from Newcastle to hasten the arrival of Norfolk, the king’s lieutenant of the north, warning that, the inhabitants of the surrounding countryside ‘think they have no other defence or succour’, but to ‘adhere … to the thieves and to become thieves as they be’.119 Indeed, the same year it was reported that the inhabitants of a town belonging to Sir John Widdrington, vice-warden of the middle march, was paying ‘assurance money’ to old Hobb Pott of Redesdale ‘for saving of their town that they should not be robbed’.120 Sometimes, the agreement took the form less of blackmail than of mutual assurances of protection. In 1542, Viscount Lisle complained that a number of Northumbrian gentlemen had secretly ‘pattished’ (or made private terms with) the thieves, and, ‘when a fray or cry is raised in the night, will not 115 116 117 118 119 120

TNA, SP1/39, mm. 33–4. BL, Caligula, B.III, fos. 45–6; State Papers, iv, 470. BL, Add. MS 24,965, fo. 169. LP, xii, 732. TNA, SP 1/115, m. 197. TNA, SP 1/117, mm. 228–9.

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rise to the rescue’.121 A rare surviving example of such an agreement, preserved in written form between Sir John Delaval of Seaton Delaval and Alexander Hall of Monkridge, provides an indication of how such connections were formed. In 1536, some of the Halls had robbed Delaval’s manor of Dissington, which lay within a few miles of Newcastle. It was not common for the surnames to raid this far south, but the unsettled circumstances of the Pilgrimage of Grace provided the perfect cover for their activities.122 In a bond dated 14 August the following year, they promised to ‘save and keep harmless the said Sir John Delaval, his heirs, tenants and servants’. If any member of the surname heard of harm intended to Delaval, they were to prevent it, or at least to give him suitable warning, and to ‘add and strength him so far as their power may extend’. In return, Delaval and his heirs agreed to ‘stand good and reasonable to them and their succession according to the same’. Delaval was no Sir William Lisle, nor yet a Little John Heron. One of the pensioners fee’d by the crown in 1537 to serve its new deputy wardens on the east and middle marches, he had been appointed sheriff of Northumberland in 1527 and 1533,123 and was described as a man ‘well minded to justice’.124 If Sir John Delaval regarded an alliance with the surnames as the most effective alternative to an ineffectual justice system it is likely that, as Dudley complained, such agreements, whether verbal or committed to paper, were commonly resorted to. The surnames interacted with their Northumbrian neighbours on many different levels: as predators; clients; allies in war and criminal enterprise alike – even as kin. Little John Heron would hardly have married his daughter to Cuthbert Charlton of Bellingham had he regarded the surnames as some kind of untermensch. Such relationships, though often fluid, were frequently profitable for both sides. And complaints about the surnames of Tynedale and Redesdale must also be weighed against similarly frequent references to miscreants from other parts of the country – in particular inhabitants of the archbishop of York’s liberty of Hexham, Bewcastledale, and Dacre’s west march lordship of Gilsland. Gilsland was no liberty, nor was it populated by surnames. Yet the inhabitants of the lordship were frequently referred to, both by their neighbours and by royal officials, as the ‘wild’ or ‘misguided men’, ‘evil-disposed’ or ‘insolent and notorious thieves’ of Gilsland.125 They, too, did ‘great harm by robbing by night both Cumberland and Westmorland’, and conveying their spoils into Scotland;126 broke into gaols to rescue their compatriots;127 and were considered to be as likely to harbour thieves and evildoers as Tynedale and Redesdale.128 The good lordship which Dacre offered his tenants was of the kind he bestowed 121 122 123 124 125 126 127 128

Hamilton Papers, i, 255. See BL, Harleian MS 289, fo. 32; LP, xi, 1294; and xii (i), 345, 351, 498, 553 inter alia. Hedley, Northumberland Families, i, 150. Hodgson, Northumberland, ii (i), 68. BL, Lansdowne MS CV, fos. 23–8; TNA, SP 1/34, mm. 113–14; BL, Caligula B.III, fo. 251. BL, Lansdowne MS CV, fos. 23–8. BL, Add. MS 24,695, fo. 41. TNA, SP 1/125, mm. 65–6; BL, Titus F. III, fo. 97; LP, xii (ii), 732; xiii (ii), 547.

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upon his surname clients in Tynedale and Redesdale – he turned a blind eye to their misdemeanours, bent the law in their favour whenever possible, and if all else failed, winked at their escape. Hexham, Bewcastledale and Gilsland were frequently associated with Tynedale and Redesdale in reports of their various villainies.129 And if these areas were trouble spots, their inhabitants were not alone in their lawlessness. William Ridley, felonious kinsman of Sir Nicholas Ridley of Willimontswick, in South Tynedale,130 was received in North Tynedale and allied himself with William Charleton, headman of Bellingham and his followers – who routed their keeper, Sir Ralph Fenwick, ignominiously when he entered Tynedale in order to arrest Ridley. By the following spring, Ridley was described, along with Thomas Charleton of Carriteth, as one of their ‘chief captains’ of the outlaws spoiling Northumberland.131 Sir William Lisle, self-styled ‘captain of all thieves’, attracted followers from among the Ogles, Fenwicks, Shaftoes and men from South Tynedale. And a group of Northumbrians, ‘spoiled until they were weary of their lives’ by the surnames’ rampage in 1536–7, set out to give their assailants a taste of their own medicine – plotting an arson attack on their homes. In this climate, it is perhaps hardly surprising that, despite the official designation of the inhabitants of North Tynedale and Redesdale as ‘surnames’, their neighbours regarded them as no more ‘alien’ than they had ever been. There were two major changes in the administration of the border in the late fifteenth and early sixteenth century. From 1489, an ever-closer control was exerted over the east and middle marches, reflected in the regular reports, even during peacetime, which the king came to demand of its officers. And, perhaps as part of this process, these officers were increasingly ‘strangers’, appointed from outside the region, to whom the way of life of the surnames was alien indeed.132 Reports of the surnames’ behaviour now generally came from these men, rather than in the form of petitions from their Northumbrian neighbours. And, once the crown had identified North Tynedale and Redesdale as ‘the problem’, its officers’ peacetime agenda, and the vocabulary and tone of their reports, would reflect this. It is notable that the 1524–5 articles of accusation against Dacre, composed by a group of Northumbrian gentlemen who were not royal officers, does not once use the term ‘surname’. It refers simply to the ‘inhabitants’ or, more opprobriously, the ‘thieves’ of Tynedale and Redesdale, in much the same fashion as the fifteenth-century petitions.133 Equally, the officers of the strategically less important west march, which attracted far less royal scrutiny, and who consequently reported far less frequently, remained largely silent about the surnames who occupied Bewcastledale and the Debateable land (principally the Nixons and Routledges). Reports of their behaviour and of

129 130 131 132 133

TNA, SP 1/32, m. 205; BL, Caligula B.III, fo. 251; TNA, SP 1/34, mm. 113–14. LP, iv, 346, 405. TNA, SP 1/34, fos. 113–14; LP, iv, 1289. Etty, ‘Tudor Revolution?’, 232–42. Hodgson, Northumberland, iii (i), 32–40.

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action taken against them are almost wholly confined to a brief period in 1537, when Norfolk – another stranger – was staying in the north as lieutenant.134 But neither in these, nor in reports of their misdemeanours from Durham and Northumberland (frequently in concert with their fellows of Tynedale and Redesdale) are they identified as ‘surnames’ – they are, once again, simply referred to as the ‘thieves’ or ‘inhabitants’ of Bewcastledale.135 In contrast to the east and middle march, the west march had remained largely in the hands of ‘natives’; it was dominated by the Dacres between 1485 and 1534 and, except when it fell into the Dacres’ hands, Bewcastle was in the charge of the Musgraves throughout this period – and they had long-standing connections with the Nixons and the Nobles.136 Norfolk described Jack Musgrave, deputy of Bewcastle, probably from 1525,137 and subsequently appointed constable, as being ‘as ill as the worst of them’.138 The absence of tales of their misdeeds may indicate that the comparative continuity of border administration in the west march (at least until 1534) allowed its command to restrain their activities more effectively. But the fact that west march official language did not designate the Nixons and Routledges as ‘surnames’ in their turn is probably due to the fact that it was their neighbours, rather than strangers, who ruled over them. Richard III was at least as keen to maintain royal control over the west march as his Tudor successors,139 and he did not regard surnames Robert Elwald, Gerard Nixon, and Cuthbert and John Routledge as too ‘degenerate’ to be fit custodians of royal lands in Bewcastle.140 But then, Richard was no ‘stranger’ – he had been an honorary ‘west marcher’ for over ten years.

134 135 136 137

138 139 140

LP, xii (ii), 422, 732, 865. TNA, SP 1/32, m. 205; BL, Caligula B.III, fo. 251; TNA, SP 1/34, mm. 113–14; LP, iv, 4186; Hodgson, Northumberland, iii (i), 32–3. Charlton, Memorials of North Tynedale, 33; BL, Add. MS 24,965, fo. 207v. He is described as having imprisoned malefactors at Bewcastle in 1525, when it was under Sir Thomas Musgrave’s constableship (Charlton, Memorials of North Tynedale, 33), and he was certainly acting as Sir William Musgrave’s deputy by September 1537 (LP, xii (ii), 732). He was appointed constable in his own right on 28 November 1544 (LP, xix (ii), 690 (66)). LP, xii, 422. Etty, ‘Tudor Revolution?’, 72–5. LP, xiii (ii), app. 36.

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8 Striving for Marcher Liberties: The Corbets of Caus in the Thirteenth Century

MAX LIEBERMAN

The frontier between Wales and the English county of Shropshire may seem an odd place to seek clues to the origins of Marcher liberties. The lordships established there lay on the frontier, along Offa’s Dyke, but they were peripheral to foreign-occupied Wales. The lordships of Oswestry, Caus and Clun all originated soon after 1066, but not as conquests of Welsh territory. Rather did they first take shape as compact honors created in the westernmost hundreds of Shropshire by Roger of Montgomery, the first earl of Shrewsbury (d.1094). To claim that these lordships bear on the history of Marcher liberties is already to take a side in the debate on the origins of those liberties. It implies a challenge to the view of J.G. Edwards, according to which the lords of the Welsh March acquired their quasi-regal privileges from the Welsh rulers whose commotes and cantreds they conquered. Of course, Edwards’ view has been challenged before. In 1978, R.R. Davies argued that Marcher liberties, which included the right to wage war and broker truces, were in origin simply the necessary expedients of local military commands. According to Davies, Marcher liberties were only perceived as such once royal government had grown so intrusive that the Marcher lords found it necessary to defend and define their liberties – that is, from the end of the twelfth century, and particulary from around 1240. Davies’ argument, which develops and applies H.M. Cam’s on the English franchises, and which implies that Marcher liberties were a sign of a strong state, is highly relevant to the history of the lordships of the Shropshire frontier. It is precisely 

J.G. Edwards, ‘The Normans and the Welsh March’, Proceedings of the British Academy 42 (1956), 155–77. The research on which this article is based was made possible by grants from the Swiss National Science Foundation.  R.R. Davies, ‘Kings, Lords and Liberties in the March of Wales, 1066–1272’, TRHS, 5th ser., 29 (1979), 41–61.  H.M. Cam, ‘The Evolution of the Mediaeval English Franchise’, Speculum 32 (1957), 427–42; repr. in her Law-Makers and Law-Finders (London, 1962), 22–43.  R.R. Davies, Lordship and Society in the March of Wales, 1282–1400 (Oxford, 1978), 19–21; M. ­Lieberman, ‘Shropshire and the March of Wales, ca. 1070–1283. The Creation of Separate Identities’ (University of Oxford D.Phil. thesis, 2004), esp. ch. 7.

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Map 2. The central Welsh borders, showing places mentioned in the text, with contour lines at 200m and 300m. Map created using Bartholomew data.

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because those lordships were first established on shire-ground, and not in Wales, that we may trace the gradual definition of their liberties. Furthermore, and this is the aim of this essay, we may seek to explain why all lords of the Anglo-Welsh frontier were not equally successful at establishing their claims to Marcher liberties. The lordships of western Shropshire were not large, but their size belies their interest for the history of the English state. They were among those ‘tiny uncertainties’ which alone remained in England’s frontiers after 1157, when Henry II reclaimed the northern counties. Yet even a brief comparison of Oswestry, Clun and Caus shows that the uncertainties varied, even between these three. As early as 1203, the lord of Oswestry and Clun, William Fitzalan II (d. c.1210) was backed by the shire court when he claimed before John’s justices that his ‘hundred’ of Oswestry owed no suit to the county court of Shropshire, ‘neither for cases of death nor arson’, and that the men of that hundred did not come before the justiciars or before the sheriff in answer to any summons. And indeed the men of Oswestry ‘hundred’ brought no cases before the justices in eyre in 1221, and made no presentments to the inquiry whose findings were recorded in the Hundred Rolls of 1255. It is enlightening to compare this to Clun, the lordship which the Fitzalans only inherited in 1199. In 1203, when William Fitzalan II first successfully asserted the immunity of Oswestry hundred, Clun ‘township’ was summoned before the justices. Although no presentments were recorded, the fact that an entry appears at all highlights the difference between the frontier lordship the Fitzalans had held since the early twelfth century and the one they had only just acquired. Whereas it could be established, by 1203, that Oswestry ‘hundred’ lay outside the county, such a claim was not even yet advanced at that time for the ‘township’ of Clun. Moreover, while Oswestry may have evaded attention in 1221, John Fitzalan I (d.1267), the son and heir of William Fitzalan II, now had to intervene when an English tenant claimed that a Welshman had wrongfully disseised him of his free tenancy at Bicton near Clun. This time, the county upheld Fitzalan’s claim that Bicton was ‘of his fief and of his liberty, where the lord king does not lay his hand and his writs do not run.’10 By 1221, then, Clun lordship had attained the same immunity as Oswestry hundred had in 1203. The situation was complicated by the fact that the easternmost part of Clun doubled as the hundred of Purslow, which did make

    

10

R.R. Davies, ‘The Peoples of Britain and Ireland, 1100–1400. 2. Names, Boundaries and Regnal Solidarities’, TRHS, 6th ser., 5 (1995), 12–13. Pleas before the King or his Justices, 1198–1212, vol. iii. Rolls or Fragments of Rolls from the Years 1199, 1201, and 1203–1206, ed. D.M. Stenton (Selden Society 83, 1967), 96. Rolls of the Justices in Eyre, 1221, 1222, ed. D.M. Stenton (Selden Society 59, 1940); Rot. Hund., ii, 75–6. For the date, cf. R.W. Eyton, Antiquities of Shropshire, 12 vols. (London, 1854–60), xi, 229. Pleas before the King or his Justices, 1198–1212, ed. Stenton, 69; G.C. Baugh, ‘The Franchises’, in idem (ed.), The Victoria History of the Counties of England. A History of Shropshire (Oxford, 1979), iii, 36; Eyton, Antiquities, xi, 229. Rolls of the Justices in Eyre, 1221, 1222, ed. Stenton, no. 1020.

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presentments to the inquiry of 1255 and at the eyre of 1256.11 However, Clun itself did neither. Well might John Fitzalan III (d.1272) assert that ‘in the parts of the March of Wales where he now resided, he was not bound to do anything at the king’s mandate, and nothing would he do’.12 Even the evidence of Edward I’s quo warranto inquiry of 1292 is in keeping with this grand statement, for it only concerned itself with those Fitzalan estates which lay in central and eastern Shropshire.13 Richard, the first Fitzalan earl of Arundel (d.1302), was required to account for his claim to legal custody of Purslow hundred; but Clun and Oswestry once again completely escaped attention.14 The lordship of Caus presents a stark contrast. At the Shropshire eyre of 1203, Robert Corbet (d.1222), the lord of Caus, was forced, in an assize of mort d’ancestor, to surrender sixty acres of land in Minsterley, which lay close to the castle of Caus and had been a Corbet manor in 1086. He also was amerced half a mark for wrongful testimony.15 At the 1221 general eyre at Shrewsbury, the justices outlawed one William Jeago for a murder committed at the manor of Pontesbury, an estate which had been part of the Corbet block of lands since the late eleventh century.16 More strikingly, the lordship of Caus was considered to be fully subject to investigation both during the inquest which Henry III conducted into royal rights in the localities in 1255 and in 1291–2, during Edward I’s quo warranto inquiry. Very full records of both investigations into the status of Caus lordship survive, and only a sample will be given here. In 1255, the jurors of Chirbury hundred, which bordered on Caus, admitted that the manor of Caus did not lie within their hundred.17 However, they stated that Thomas Corbet (d.1274) had, five years previously, withdrawn pleas originating in his fief ‘of felony, bloodshed, of theft and of the hue and cry’ which had pertained to the hundred. They also held that Thomas’s manor of Worthen was part of Chirbury hundred and had performed suit until the eyre of justice Sir William ‘de Ewerwyke’,18 but that since then it made presentments separately. They further accused Thomas of withdrawing from Chirbury hundred the suit of the vill of Leigh while it was in his custody due to the minority of its tenant, Hugh Hagar. Hugh, they further specified, did suit to the hundred, except when Thomas withdrew pleas belonging to the hundred to ‘his court and liberty of Caus’, which he had done for sixteen years. Thus, whereas the immunity of Clun and Oswestry no longer even needed defending by 1255, Thomas Corbet’s attempts at establishing a similarly exempt status for his territories became the subject of precise accusations founded on detailed evidence. 11 12 13 14 15 16 17 18

Rot. Hund., ii, 76–8; The Roll of the Shropshire Eyre of 1256, ed. A. Harding (London, 1981), 196–203. Excerpta e Rot. Finium, ii (1269), 486. Plac. de Quo Warranto, 687b. Plac. de Quo Warranto, 681a. Pleas before the King or his Justices, 1198–1212, ed. Stenton, 100, 120; DB 253c. Rolls of the Justices in Eyre, 1221, 1222, ed. Stenton, no. 1309. Rot. Hund., ii, 60. Justices in eyre visited Shropshire from 27 October to 25 November 1248: D. Crook, Records of the General Eyre (London, 1982), 110–11.

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During the quo warranto inquiry in 1291–2, Peter Corbet (d.1300), Thomas’s son and heir, found himself similarly beset by the agents of the state. He was charged with defending his right to hold, in his manors of Worthen, Minsterley and Shelve, pleas reserved to the crown; he was also called upon to justify withdrawing from the hundreds of Ford and Chirbury as well as from the county court of Shropshire the suits of twenty-two vills in the Rea-Camlad valley and in the hills surrounding it – in other words, almost all of Caus lordship was coming under scrutiny.19 Peter held that ‘no sheriff, coroner or other royal servant should enter those vills to do his office, and that those vills did not owe suit at hundred or county or have to come before the justices of the king or his coroners or escheators or other servants to make presentments or do anything that might pertain to the crown’. The king’s attorney objected that ‘those aforesaid liberties constituted the royal crown (faciunt Coronam Regis)’, and that none might lay claim to them without explicit royal licence. The outcome of this plea is not recorded; but this vill-by-vill bargaining could hardly have contrasted in a more pronounced way with the case of Fitzalan, whose border territories – apart from Purslow hundred – entirely escaped the notice of Edward I’s quo warranto inquiry. The status of Caus was ambiguous at best. As early as 1256, the shire court stated before the justices in eyre at Shrewsbury that Caus did not customarily appear before them, but that it lay within the county.20 This argument partly relies on the absence of sources, but it can be bolstered by turning to the evidence for the Welsh tax granted in 1291. A fifteenth on moveables in aid of Edward I’s campaign in Gascony had been granted in England in 1290. The inclusion of Wales was innovative: the country had never been taxed before. The task of levying the tax created an unprecedented need to decide which parts of the borders belonged to Wales and the March, and which were part of England. In the spring of 1293, Oswestry, Clun and Caus were all assessed as part of the March. However, while in the former two lordships jurors and assessors were drawn from both the English and the Welsh, both jurors and all twelve assessors for Caus had Welsh names, a strong indication that only the Welsh-populated western part of the lordship was assessed for the Welsh subsidy.21 The pattern is even clearer in the fourteenth century. For example, Caus, but not Oswestry and Clun, was assessed for the twentieth on moveables in 1327 and for the fifteenth and tenth of 1334.22

19 20 21

Plac. de Quo Warranto, 677, 681. Roll of Shropshire Eyre of 1256, ed. Harding, no. 864. TNA, E 179/242/48, mm. 5v (Caus); 6v (Oswestry, Clun). Published in F. Jones, ‘The Subsidy of 1292’, Bulletin of the Board of Celtic Studies 13 (1948–50), 215–25. The roll evidently relates to the Welsh subsidy, as it contains entries for lordships in south Wales. Unfortunately, no records of the English part of the fifteenth granted in 1290 survive for the county of Shropshire proper. 22 The Shropshire Lay Subsidy Roll of 1 Edward III (1327), ed. W.G.D. Fletcher (Oswestry, 1907), passim; The Lay Subsidy of 1334, ed. R.E. Glasscock (London, 1975), 122, 249, 252–3, 256–7.

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Thus, during the thirteenth century, Oswestry, Clun and Caus indeed constituted ‘tiny uncertainties’ in the frontier of the English kingdom; but Caus lagged noticeably behind. It continued to do so in the sixteenth century. After Henry VIII’s Acts of Union of England and Wales (1536–43), Oswestry and Clun were reincorporated into the county of Shropshire, but no such measure was apparently deemed necessary for the English-settled part of Caus.23 But the evidence reviewed so far suggests that it was during the thirteenth century that the differences between the lordships under discussion were established – after 1203, when Fitzalan still needed to defend his exclusive jurisdiction in Oswestry. A closer look at thirteenth-century Caus therefore clearly presents an opportunity for studying liberties in the making, and for gaining a better understanding of the reasons why some frontier castellans were apparently less successful than others at establishing themselves as true Marcher lords. The Fitzalans were by far the greatest landholders in Shropshire bar the crown. Throughout the twelfth century they were able to lay a quasi-hereditary claim to the office of sheriff of Shropshire.24 It is an illustration of their status within the English baronage that in c.1220, they contracted the marriage alliance which brought John Fitzalan II (d.1267) a quarter of the d’Aubigny inheritance and his grandson Richard the title of earl of Arundel. That the Fitzalans wielded more clout clearly goes some way towards explaining why it was they, rather than the Corbets, who took the lead in withdrawing their frontier territories from the county. Much of the Fitzalans’ comparative success at claiming liberties may have been due to the fact that because of their leading position within Shropshire, they were first off the mark. It does seem that it became more difficult to withdraw territories from the county as the English state developed. The Fitzalans may have been less successful in asserting the exemption from taxes and scutage of Clun than of Oswestry because they only came to inherit the former lordship in 1199. Thomas Corbet very clearly seized the opportunity of his tenure of the office from 1248 to 1250 to withdraw the suits of several manors of Ford and Chirbury hundreds to his court at Caus; in 1255, he was accused of having done so ‘five years previously’.25 But by the time Thomas Corbet held the office of sheriff, it brought with it an altogether less exalted status than it had done in the twelfth century.26 However, it should not be assumed that the most obvious difference between the Fitzalans and the Corbets sufficiently explains the differences between their frontier lordships as Marcher immunities. Despite the Fitzalans’ status, Purslow hundred did not evade investigation in the later thirteenth century, even though

23

Tellingly, the western part of Clun was first included in Montgomeryshire. So was ‘Cawrsland’, but this must have been the Gorddwr, the Welshry of Caus beyond the Severn, not the English-populated part of Caus lordship: Baugh, ‘Franchises’, 41–2. 24 Baugh, ‘Franchises’, 35. 25 Rot. Hund., ii, 60. 26 D.A. Carpenter, ‘The Decline of the Curial Sheriff in England’, EHR 91 (1976), 1.

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it had been in their hands since 1199. Moreover, tenure of the shrieval office at an early stage did not guarantee that frontier estates could successfully be withdrawn from the county. Geoffrey de Vere, sheriff of Shropshire from 1165 to 1170, had no permanent success in establishing Clun, which he held by right of marriage to Isabel de Sai, as lying outside the county, if indeed he attempted to do so. Nor does it appear that a lord had necessarily to be sheriff in order to establish or maintain that his border estates lay outside the county. After all, the Fitzalans lost their grip on the office in 1201 – two years previous to the Shropshire eyre which first drew attention to Oswestry’s claim to immunity – and did not regain it for the rest of the thirteenth century. It is clearly worth investigating further whether the Corbets faced any obstacles apart from their lesser status as county landholders or officials. It may be that the Corbets were at a disadvantage in terms of the geographical position of their castle and lordship relative to the county of Shropshire and to Wales. True, Caus castle was situated in a strong position atop the Long Mountain. However, the lordship was dissected by the road that led westwards from Shrewsbury to the castle of Montgomery, the upper Severn valley, and Wales. After 1207, when Montgomery escheated to the crown, and particularly after 1223, when Henry III ordered the construction of a new castle in that lordship, the lords of Caus found that two royal fortifications, Shrewsbury and Montgomery, faced each other straight across their lands at a distance of thirtyodd kilometres from each other. The building of New Montgomery castle seems duly to have led to official scrutiny of the Corbets’ obligations within the royal administrative system. In 1226, the king ordered an inquiry into whether or not Thomas Corbet owed suit at the hundred of Montgomery.27 It could even be said that Caus lordship, hedged in by the hundreds of Montgomery, Chirbury and Ford, was less likely to be deemed part of the Welsh March than were Oswestry or Clun. Its Welshry, the Gorddwr, lay ‘beyond the water’, the river Severn, as its name implied,28 and it was also separated from the English part of the lordship by the Breidden Range. Thus, the lie of the land ensured that much of Caus looked towards the county more clearly than did the remoter lordships of Clun and Oswestry. The geographical situation of Caus meant that in claiming liberties, the Corbets might, on occasion, have been perceived as establishing not a Welsh Marcher lordship but an English franchise within the boundaries of the county of Shropshire.29 The rebuttal of such efforts by the jurors of Chirbury hundred in 1255 has already been mentioned; the jurors of Ford hundred claimed in the same year that Thomas Corbet owed suit in the county and at their hundredal court.30 27 28 29

Rot. Claus., ii. 114a, 154–5. J.E. Lloyd, ‘Border Notes’, Bulletin of the Board of Celtic Studies 11 (1941–4), 48–51. On English liberties and franchises within the county proper see Baugh, ‘Franchises’, 45–53. Note that Baugh discusses Caus as a ‘Marcher lordship’, alongside Oswestry and Clun: ibid., 34–41. 30 Rot. Hund., ii, 66, which has the misreading ‘Trebec’ for ‘Corbet’. Cf. the original, TNA, SC 5/ SALOP/CHAPTER/8, m. 2r, where Caus lordship has an individual entry under the heading of Ford hundred.

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Nevertheless, Caus was close enough to the Anglo-Welsh frontier for it to shape the outlook of the Corbets to a considerable extent. There can be no doubt that the Corbets considered that their position on the Welsh borders afforded them status and privileges. Around 1200, Robert Corbet of Caus managed to arrange the marriage of his daughter Margaret to Gwenwynwyn, lord of Powys ­Cyfeiliog and scion of the royal dynasty of Powys. On at least one occasion, in 1228, Thomas Corbet himself concluded a truce with a Welsh ruler, none other than Llywelyn ap Iorwerth, the prince of Gwynedd.31 In the early 1240s, Thomas sought to settle a dispute with his nephew, Gruffudd ap Gwenwynwyn, at a ‘love-day’ (dies amoris), a Marcher institution designed to cope with frictions arising between neighbouring lordships.32 In 1251, Thomas refused to pay relief for his lands ‘because’, he claimed, ‘none of his five predecessors had ever paid it’.33 In the late 1250s, Thomas was accused of hanging three of his Welsh nephew’s men ‘without judgment or any cause’.34 There is no reason to doubt that the Corbets considered the basis of their claims to liberties to be their position as lords of the Welsh March. The Corbets certainly had a role to play in cross-border diplomacy and conflict. Both Robert and his son Thomas appear throught the late twelfth and thirteenth centuries as agents of the crown in Welsh affairs. In 1195–6, Robert Corbet received 10 marks from Richard I ‘to maintain himself in Wales in the king’s service’;35 in 1209, he reported to John that he had Welsh hostages in custody in Caus castle;36 and during John’s Welsh campaigns of 1211–12, the king lent him 100 shillings.37 In 1223, Thomas Corbet was remitted £20 of the relief he owed for his succession to the barony in the previous year ‘in aid of his castle at Caus’.38 In 1229, one year after Henry III’s disastrous campaign against Llywelyn ap Iorwerth, the king granted Thomas a respite from paying the remainder of his relief.39 Thomas was acquitted for the scutage of Ceri in the same year, and excused that of Brittany in the following.40 In 1232, one year after Llywelyn ap Iorwerth devastated border castles all along the Welsh frontier, Henry III ordered that his second tax on moveables not be collected from ‘the lands under (infra) the hundred of Chirbury’, which possibly included Caus lordship.41 In 1263, Thomas was expected to lead twenty-five of his men, 31 32 33

34 35 36 37 38 39 40 41

CR, 1227–31, 113–14. Roll of the Shropshire Eyre of 1256, ed. Harding, no. 335. TNA, E 368/24, m. 12v; cf. Eyton, Antiquities, vii, 24. Thomas indeed only paid a small part of the relief for the barony of Caus: J. Meisel, Barons of the Welsh Frontier: The Corbet, Pantulf, and Fitz Warin Families, 1066–1272 (London, 1980), 14–15. Cal. Anc. Corr. Wales, 19–20. The Chancellor’s Roll for the Eighth Year of the Reign of King Richard the First. Michaelmas 1196, ed. D.M. Stenton (PRS, NS 7, London, 1930), 42. Rot. Pat., 91b. Rot. Obl. et Finibus, 504. Excerpta e Rot. Finium, i, 94–5; Rot. Claus., i, 537a. Pipe Roll 14 Henry III (PRS, NS 4), 127. Eyton, Antiquities, vii, 19–20. Roll of Divers Accounts for the Early Years of the Reign of Henry III, ed. F.A. Cazel (PRS, NS 44, 1982), 65.

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probably all of them his tenants, ‘during the war in Wales’.42 The case of the Corbet lords of Caus suggests that there was no straightforward link between the establishment of Marcher immunity – as opposed to the occasional tax break – and a role in what might be termed Anglo-Welsh relations.43 It stands to reason that the goodwill or acquiescence of the king could, and no doubt on occasion did, assist the lords of the Shropshire-Powys frontier in achieving greater freedom from interference and from the obligations of county administration, and that the converse was true as well.44 According to local legend, Thomas participated with gusto in the rebellion of the outlaw Fulk Fitzwarin III, who defied John in 1201 after being denied his claim to the castle of Whittington, just north of Caus, and who was pardoned in 1203.45 Thomas certainly joined the baronial opposition in 1215–16, and may have aided and abetted the capture of Shrewsbury by Llywelyn ap Iorwerth in May 1215. As a result, John seized Caus castle, probably in August 1216, even though Thomas’s father Robert remained loyal to the king.46 Although Caus was restored to Robert in November 1217, it seems that his son, after succeeding in 1222, was slow to regain the trust of the king and his council. True, payment of his full relief was remitted to help pay for new defences at Caus, as has been seen. But this compares unfavourably with the lords of Knockin and of Wigmore, who both had remained loyal to John in 1215–16 and in 1223 received twenty marks from the royal coffers to fortify their castles.47 It is worth noting that the Fitzwarin lords of Whittington, rebels in 1201 and again in 1215–16, were certainly not yet above royal suspicion. In 1222, Henry III decreed that the castle at ­Whittington should be made so strong that it could be defended against the Welsh, but no stronger.48 During the thirteenth century, the crown could keep a close eye on the frontier lords under discussion, and its power over them was never in doubt for long. However, it is not clear that lingering royal disfavour lay behind the Corbets’ difficulties in claiming Marcher liberties. It is worth recalling that William Fitzalan II was removed from the office of sheriff in 1201, possibly because he had incurred John’s disfavour during the Fitzwarin outlawry. Moreover, the Fitzalans also rebelled at the end of John’s reign, and incurred more drastic retribution than the Corbets. John seized Caus in 1216; but he burned Oswestry.49 42 43

44 45

46 47 48 49

CPR, 1258–66, 287. The Corbets’ failure to establish Caus as a Marcher immunity could be cited in support of J.G. Edwards’ challenge to the Elizabethan view on the origins of Marcher liberties, according to which those liberties were granted by the English king as a reward for a role in the defence of the realm’s frontier. Baugh, ‘Franchises’, 35, 37. Fouke le Fitz Waryn, eds. E. Hathaway, P.T. Ricketts, C.A. Robson and A.D. Wilshere (Oxford, 1975), 36, line 37 and note; Rot. Pat., 36: Thomas does not appear among those pardoned ‘for consorting with Fulk Fitzwarin’. CPR, 1216–25, 127. Rot. Claus., 545a, 548b. Rot. Claus., 520b. Brut y Tywysogyon, or the Chronicle of the Princes. Red Book of Hergest Version, ed. T. Jones (Cardiff, 1955), 209.

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Clearly, the king’s displeasure alone was insufficient to prevent the withdrawal of frontier territories from the county. This is perhaps unsurprising. After all, in 1203 and in 1221 it was the county assembly that decided how far the jurisdiction of the shire extended – exemption from that jurisdiction might be, and was, established without explicit royal consent in thirteenth-century Shropshire. Conversely, when a royal exemption was granted, as it was on the occasion of the fortieth of 1232, the implication was that those estates would not normally have been exempt, but considered to lie within the county. The same point was established by grants of free warren and other immunities, such as those to Caus in 1247 and to various central Shropshire estates of the Fitzalans in 1254.50 It is conceivable that such grants were intended to dispel doubts about the issue of whether or not the favoured estates lay within the county, by driving home the point that liberties could only be assumed with royal permission. Royal favour might undermine implicit claims to exemption; invoking it certainly does not explain satisfactorily how territories like Clun and Oswestry came to escape entirely the painstaking scrutiny of baronial claims to liberties conducted by Edward I’s agents in 1292. The Corbets’ efforts to assert claims to Marcher liberties during the thirteenth century can have suffered no setbacks from minorities and very few from deaths in the male line. Thomas Corbet succeeded his father Robert as lord of Caus in 1222 and died over half a century later, in 1274.51 However, Thomas may have been to blame for making his task more difficult than it need have been. While it was by no means unheard of or even unusual for Marcher lords to appear before the judicial courts of England,52 Thomas Corbet of Caus was surely exceptional in this respect. In his long career as lord of Caus, he fought a remarkable amount 50

For Caus, see TNA, C/143/1/4: the grant extended to the manors of Worthen, Forton, ‘Caus in Westbury’, Minsterley, Yockleton, and Wentnor; for the Fitzalan estates, CPR, 1247–58, 263. 51 Thomas Corbet’s date of birth is relevant to the argument of this paper, since his age may conceivably have affected his ability to assert claims to Marcher liberties. A note on the topic is therefore necessary. The simplest explanation of the evidence is not that he was over ninety years old when he died in 1274 (as concluded by Eyton and Meisel), but that he had a contemporary namesake who was a Somerset-based tenant of James of Newmarch. A Thomas Corbet can be found acquiring land in Cheriton, Somerset, as early as 1198 (Feet of Fines, PRS 23 (1898), no. 124). This Thomas was probably identical with the one who was recompensed out of the chattels of James of Newmarch (d.1216) for service in Poitou in 1206 (Rot. Litt. Claus., i, 94a). He was also granted 1/20 of a fee in Wilkin Throop, next to Cheriton, Somerset, by James of Newmarch (R.W. Dunning (ed.), A History of the County of Somerset, vii (Oxford, 1999), 124; CPR, 1388–92, 148). Various other Somerset Corbets can be found in the cartulary of Bruton Priory (Somerset Record Society 8). But Somerset lands occur in none of the Corbet of Caus inquisitions post mortem (CIPM, ii, no. 85; CIPM, iii, no. 600; CIPM, vi, no. 318; CIPM, ix, no. 50). Confusion exists because Thomas Corbet of Caus acquired an estate also called Cheriton. This was the Cheriton in Devon, granted to him by Reginald de Vautort, lord of Trematon, Cornwall, when he married Isabel, sister and in her issue coheiress of Reginald. Thomas granted this Cheriton to William Pipard (CIPM, ii, no. 165). Edmund Pipard held the manor by knight’s service from Thomas Corbet in 1272 (CIPM, i, no. 826); his heir held it of Peter Corbet in 1283 (CIPM, ii, no. 470). If it is accepted that there were at least two Thomas Corbets in England during John’s reign, then the Buildwas Abbey charters discussed in Eyton, Antiquities, vii, 17–19, some of which are witnessed by Thomas Corbet of Caus, may well be later than Eyton believed. Thomas Corbet need not have been born before, say, 1195. 52 Davies, Lordship and Society, 251–4.

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of legal battles. Moreover, it was not just a matter of the number of disputes, but also of their content. The legal struggles in which Thomas became embroiled tended to draw not only his person, but his lands and rights over his tenants into the reach of the English judicial machinery. Thus, the manor of Pontesbury had been part of the Corbet block of lands since the eleventh century. But in 1236 and 1242, Thomas and his tenant, Herbert fitz Peter, appeared before the King’s Bench to settle disputes over seisin of that manor and the military service due from it.53 Similarly, in the late 1240s and in 1250, Thomas’s right to military service was disputed before royal judges by Odo de Hodnet, who was recorded in 1242–3 as owing him the service of one knight for Westbury, another manor which had been firmly in Corbet hands in 1086.54 In 1256, before the justices in eyre at Shrewsbury, Thomas claimed – unsuccessfully – that Fulk Fitzwarin IV had renounced his tenure of Alberbury along with his homage in a bout of anger when Thomas called his father a traitor.55 Most strikingly, lands which clearly lay to the west of the county became the subject of highly protracted and complex disputes involving Thomas Corbet, the Fitzwarins, and Thomas’s Welsh nephew, Gruffudd ap Gwenwynwyn of Powys Cyfeiliog.56 Thus, Thomas Corbet was arraigned before the royal court in 1247, when Fulk Fitzwarin III was suing him over the manor of Bausley, the suit being enrolled under the heading of ‘Wales’, rather than of ‘Salop’ (Bausley, too, had been a Corbet manor in 1086).57 Thirty years later, an inquisition into the tenurial history of Bausley was held before the sheriff and ‘the full county of Salop’.58 Another long-running dispute in which Thomas Corbet was involved concerned lands in the Gorddwr. It began as an altercation between him and his sister Margaret over the dower she had received when she married Gwenwynwyn. The parties’ failure to settle this dispute at a ‘love-day’ meant that the English government began to interfere even in this essentially Marcher dispute. In 1255, the king’s council appointed three commissioners ‘for the amending of injuries and excesses in the March, and especially for the hearing of the contentions between Thomas Corbet and Gruffudd ap Gwenwynwyn’.59 Thomas continued to make frequent use of the judicial courts of England until of the end of his life. To give just one further example, in 1272, he brought a number of suits against those, many of them his tenants, who had done injury to Caus and other manors during the disturbances of the realm.60 Thus, Thomas attracted the attention of the English judiciary to a degree which none of his Marcher neighbours, not even the rebellious Fitz53 54 55 56 57 58 59 60

Curia Regis Rolls, vol. xv, 1233–37 (London, 1972), 420; Curia Regis Rolls, vol. xvii, 1242–3 (London, 1991), no. 631, 127. Liber Feodorum. The Book of Fees Commonly Called Testa de Nevill. 3 vols. (London, 1920–31), 964, 971; TNA, JUST 1/1176, m. 20v; TNA, KB 26/139, m. 12r. Roll of the Shropshire Eyre of 1256, ed. Harding, xxi–ii, xxvii–viii, no. 335. C.J. Spurgeon, ‘Gwyddgrug Castle and the Gorddwr Dispute in the Thirteenth Century’, Montgomeryshire Collections 57 (1962), part ii, 125–36. Meisel, Barons, 91; TNA, KB 26/159, m. 6r; TNA, KB 26/159, m. 9r. Cal. Inq. Misc., i, 329. CPR, 1247–58, 438. TNA, JUST 1/736, m. 14r.

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warins, could rival. Partly this was his choice, in that he himself initiated legal proceedings. Yet he also very frequently stood accused of abusing his power as local strongman. This can only have increased his dependence on the goodwill and favour of his neighbours in the county of Shropshire and on the king of England. Yet there is reason to believe that even had Thomas been less conspicuously litigious, his success at withdrawing Caus from the county would have been limited. For one secret of such success lay largely beyond his control: the ethnicity of the population of the frontier districts in question. Recent scholarship has illustrated the ways in which the English state became not only more elaborate and bureaucratic over the thirteenth century, but also grew ethnically exclusive in its outlook and operation.61 It is primarily the foremost exponents of Edward I’s government that displayed this outlook: it is evident from the expostulations and exhortations of Archbishop Pecham in 1284 and from the tone of Edward I’s ordinances of 1295.62 By the end of the thirteenth century, the effects of this outlook were being felt in the localities. In the Irish context, it underlay the enactment against degeneracy passed by the Dublin parliament of 1297.63 It manifested itself in the applicability of the common law, which came to be both restricted to and mandatory for Englishmen during the thirteenth century.64 It may explain why the Welsh of Archenfield on the Herefordshire border paid their share of Henry III’s fifteenth on moveables in 1225, but later on were able to claim exemption from English taxes by asserting that Archenfield was part of the Welsh March.65 In the lordships of westernmost Shropshire, the correlation between Welshand English-settled territories and districts which escaped the scrutiny of the thirteenth-century royal inquiries is a very close one. Oswestry lordship and the uplands of Clun saw a considerable influx of Welsh settlers during the second half of the twelfth century, while Purslow hundred remained largely Englishpopulated.66 Caus, on the other hand, had an overwhelmingly English and Norman population in 1086, with Welshmen being recorded only in Bausley and

61

62

63

64 65 66

R.R. Davies, ‘The English State and the “Celtic” Peoples, 1100–1400’, Journal of Historical Sociology 6 (1993), 1–14; see also his Domination and Conquest, chaps. 3 and 6; and his The First English Empire. Power and Identities in the British Isles, 1093–1343 (Oxford, 2000), 140–41. Registrum Epistolarum Johannis Peckham, ed. Martin, ii, 741–2; iii, 776–7; Record of Caernarvon, ed. Ellis, 131–2; R.R. Davies, The Age of Conquest. Wales 1063–1415 (Oxford, 2000; first published under this title Oxford, 1991; first published as Conquest, Coexistence and Change. Wales 1063– 1415, Oxford, 1987), 385–6. S. Duffy, ‘The Problem of Degeneracy’, in J.F. Lydon (ed.), Law and Disorder in Thirteenth-Century Ireland: The Dublin Parliament of 1297 (Dublin, 1997), 87–106; R. Frame, ‘ “Les Engleys nées en Irlande”: The English Political Identity in Medieval Ireland’, TRHS, 6th ser., 3 (1993), 83–103. R.R. Davies, ‘The Peoples of Britain and Ireland, 1100–1400. 3. Laws and Customs’, TRHS, 6th ser., 6 (1996), 5–6. Foreign Accounts of Henry III 1219–34, ed. F. Cazel (PRS 44, 1974–5), 56; Davies, Lordship and Society, 17. Lieberman, ‘Shropshire and the March of Wales’, 51–63; Ll. B. Smith, ‘The Welsh Language before 1536’, in G.H. Jenkins (ed.), The Welsh Language before the Industrial Revolution (Cardiff, 1997), 18–19.

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Trewern. This situation appears to have persisted while the Gorddwr changed hands between Welsh rulers and the Corbet lords of Caus; in 1281 a jury found that ‘Le Gordur’ lay ‘in the Welshry and outside the county’.67 In 1300, the last male Corbet lord of Caus was found to have held both Upper and Lower Gorddwr and a minor intermediate district referred as ‘Baghaltreff ’ (Bachelldre, modernday Heldre).68 By that time, the Gorddwr was thoroughly Welsh: in 1300, there were 44 Welsh free tenants in Lower Gorddwr, 28 in Upper Gorddwr and ten in Bachelldre. By contrast, Chirbury hundred was almost exclusively English in 1327, at least according to the picture conveyed by the lay subsidy roll for that year.69 It was argued above that the Welsh fifteenth was only levied, in 1293, from the Welsh-populated areas of the Corbet frontier honor. Moreover, those territories also eluded the quo warranto proceedings which had been conducted in 1291–2. A comparison between the Fitzalan claims to exemption in 1203 and 1293 also supports the view that the increased ethnic exclusiveness of the English state had an effect on the Shropshire borders. At the beginning of the thirteenth century, William Fitzalan II had simply laid a claim to a private hundred. But his great-great grandson, ninety years later, found that his best defence against having to answer before the royal court for raiding the Fitzwarin lordship of Whittington was to proclaim that he was ‘a baron of the Welshry’.70 By the 1290s, the exemption of the Welsh-settled districts of Caus did not need defending. At the same time, Welshness had become a trump-card in the hands of those lords who did need to cement the claim of their border territories to lying outside the county. The evidence of these frontier lordships suggests that during the thirteenth century, the English state became less ethnically inclusive not only in its rhetoric and central government, but in the practice of how it brought its governmental machine to bear in the localities. Thus, there was no single reason for the differences between the Marcher immunities which still rendered the English frontier an uncertain one during the late twelfth and thirteenth centuries. The Corbets were less important land­ holders than their neighbours, the Fitzalans; and their lordship of Caus straddled the road which led by way of two royal castles to the upper Severn valley, the main entry point into the Welsh massif. But it would appear that the Corbets compounded these disadvantages in several ways; for instance, by incurring the disfavour of the king and of their English and Welsh neighbours, and by depending to an unparalleled extent on the English judiciary. Yet there were clearly also forces at work which lay beyond their control. The Corbets sought to establish liberties at a time when the English state both became more elaborate and precise and began to work on the assumption that it excluded territories 67

Calendar of Various Chancery Rolls: Supplementary Close Rolls, Welsh Rolls, Scutage Rolls. A.D. 1277–1326 (London, 1912), 204. 68 CIPM, iii, no. 600, TNA, C 133/94 (6), m. 2r (1300). 69 The Shropshire Lay Subsidy Roll of 1 Edward III (1327), ed. W.G.D. Fletcher (Oswestry, 1907; repr. from Transactions of the Shropshire Archaeological Society, various). 70 Abbreviatio Placitorum, 231a.

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not settled by Englishmen. The different extent to which the lordships of the Shropshire-Powys frontier, and indeed the English and Welsh districts within them, escaped the reach of the English state can be explained to a considerable extent by those twin developments.

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9 Franchises North of the Border: Baronies and Regalities in Medieval Scotland

ALEXANDER GRANT

Scottish franchises – especially the late medieval regalities, equivalent to English palatinates – have not had a good press from past historians. The common attitude is neatly caught in two statements from the 1950s: William Croft Dickinson (author of what is still the main institutional study of the subject) declared in 1952 that in late medieval Scotland ‘franchisal privileges grew, flourished and were assumed unchecked’, while in 1958 Peter McIntyre wrote (in the standard Introduction to Scottish Legal History) that the lords of regality ‘used the privileges they wrested from the weak kings of 14th century Scotland to establish an alternative system of government’. But that generation of historians developed their ideas within the crown-focused traditions of pre1960s medieval English historiography, so it is hardly surprising that they had an anti-franchisal stance worthy (ironically in a Scottish context) of Edward I and his centralising lawyers. However, at about the same time as Dickinson and McIntyre were writing, J.R. Strayer (whose ideas started with France rather than England) was developing a very different line, presented in two seminal, though neglected, essays on feudalism. His basic argument was that the concept of feudalism should be 

 





I am most grateful to Michael Prestwich for persuading me to revisit a subject that I had not looked at in significant depth since writing my ‘The Higher Nobility in Scotland and their Estates, c.1371– 1424’ (Oxford University D.Phil. thesis, 1975), esp. 109–83, 346–97 – and for his forbearance ever since. The Court Book of the Barony of Carnwath, 1523–1542, ed. W.C. Dickinson (Scottish History Soc., 3rd ser., 29, 1937), pp. xi–cxvi (editor’s introduction). W.C. Dickinson, ‘The Administration of Justice in Medieval Scotland’, Aberdeen University Review 24 (1952), 345; P. McIntyre, ‘Franchise Courts’, in G.C.H. Paton (ed.), An Introduction to Scottish Legal History (Stair Soc. 20, 1958), 380. Even Geoffrey Barrow and Ranald Nicholson made similar comments: G.W.S. Barrow, Robert Bruce and the Community of the Realm of Scotland (1965; 3rd edn, Edinburgh, 1988), 283; R. Nicholson, Scotland: The Later Middle Ages (Edinburgh, 1974), 112. J.R. Strayer, ‘The Two Levels of Feudalism’ (1967), and ‘The Development of Feudal Institutions’ (1961; original conference paper, 1957): reprinted in his Medieval Statecraft and the Perspectives of History (Princeton, 1971), chaps. 6–7.

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understood ‘to mean a type of government which was conspicuous in Western Europe from about 900 to 1300 and which was marked by the division of political power among many lords and by the tendency to treat political power as a private possession’. While the issue of feudalism can be set aside here, the main point is that the private exercise of public power by great lords was entirely normal across Western Europe between the tenth and the thirteenth centuries, and indeed was the defining feature of political society during that era. This came about because originally, There was no possibility of establishing a centralized, bureaucratic administration; no ruler had enough money to pay and supervise local officials. Therefore, local administration and justice, which is the essential work of any government, had to be left to the leading men in each district, that is, the lords.

Although this passage refers to the earlier part of Strayer’s period, in Scotland the generally low level of crown revenue means that it applies throughout the Middle Ages. Hence, following Strayer, there is no need for the traditional censoriousness about private seigniorial rights of public government (which, technically, survived until the ‘Heritable Jurisdictions Act’ of 1747); they were always fundamental to how the kingdom was run. That becomes abundantly clear when we consider the standard judicial system operating through the royal courts – the simplest way of approaching the subject of Scottish baronies and regalities. From the late twelfth century (and probably earlier), the crown employed two types of local court: sheriff courts held frequently in each sheriffdom, and above them twice-yearly justiciar ayres or circuits. The sheriff courts’ civil jurisdiction covered disputes over the ownership of land held in chief of the crown, plus appeals from local seigniorial courts; but cases about breaches of the rules of landownership went to the justiciar ayres, and these also heard appeals from the sheriff courts and pleas concerning more than one sheriffdom. As for criminal jurisdiction, the sheriff courts dealt with theft by ‘hand-having’ thieves caught in possession of stolen goods, and with assault and killing committed openly by ‘red-handed’ perpetrators; if the theft was serious, or if the killing was not accidental or selfdefence but deliberate slaughter, the death penalty was imposed.10 But the worst  

Ibid., 65. Though I find Strayer’s bypassing of the narrow fief/vassal arguments very useful. Remarkably, there is no reference to these essays in S. Reynolds, Fiefs and Vassals (Oxford, 1994).  Strayer, Medieval Statecraft, 78.  See, in general, Paton, Introduction to Scottish Legal History; H.L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993); The Sheriff Court Book of Fife, 1515–1522, ed. W.C. Dickinson (Scottish History Soc., 3rd ser., 12, 1928), editor’s introduction; and G.W.S. Barrow, The Kingdom of the Scots (London, 1973), chap. 3 (‘The Justiciar’). 10 For homicide, Regiam Majestatem … based on the text of Sir John Skene, ed. T.M. Cooper (Stair Soc. 11, 1947), i.4, and Quoniam Attachiamenta, ed. D. Fergus (Stair Soc. 44, 1996), cc.26, 46; also APS, i, 598 c.1, 651 c.24, 656 c.42 (alternative editions of these early fourteenth-century legal texts). For serious theft, Regiam Majestatem, iv.16 (‘no person should be hanged for less than the theft of two sheep worth 16d. each’).

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crimes, known as the ‘pleas of the crown’ – murder, rape, arson and robbery – were reserved to the justiciar ayres. Robbery (as opposed to theft), rape and arson all involved deliberate violence, and so were premeditated breaches of the king’s peace; but the difference between murder and deliberate slaughter (both of which were premeditated and violent) was that murder was ‘secret’ or hidden, whereas slaughter was public.11 In addition, the justiciar ayres acted on indictments, or ‘dittays’, when local communities accused individuals of crimes which, again, would have been ‘secret’ – not only murder, but also (and probably chiefly) theft where the accused was not caught in possession.12 This was a relatively straightforward and indeed simple system, especially by comparison with that of medieval England. In particular, the courts were distinctly thin on the ground, with never more than between twenty and thirty sheriff courts and normally only two justiciar ayres (operating north and south of the Forth). Admittedly the crown could appoint deputy justiciars to hold extra ayres and nominate justiciars in hac parte to deal with specific cases;13 even so, it is hard to see how such a system on its own could have maintained local justice adequately. Nevertheless it did continue to operate throughout the Middle Ages, and though complaints about judicial problems are not infrequent in the late medieval parliamentary records, no proposals were ever made to increase the number of justiciars or subdivide the sheriffdoms.14 Thus, remarkably, the actual number of local royal courts appears not to have been an important issue. The explanation must surely be that in practice most of the burden of local justice fell on the barony and regality courts, where ‘private’ jurisdiction was exercised – which, of course, corresponds exactly with Strayer’s fundamental point. * In later medieval Scotland, the barony was an extremely common franchise. From Robert I’s reign (1306–29), it was increasingly precisely defined as an estate to which specific ‘baronial’ powers were formally attached, while the main definition of ‘baron’ came to be a lord who possessed a barony and held it in liberam baroniam – that is, with the right to exercise those powers (it was possible to possess merely the lands of a barony, or part of one, without actually holding in liberam baroniam; technically, such a landowner would not be 11

Murder is defined as secret killing in Regiam Majestatem, iv.5 (APS, i, 633 c.4). But later fourteenthcentury legislation contrasts ‘murder or forethocht felony’ with killing in ‘chaudemelle’ (hot blood): e.g., APS, i, 48 (1373). The latter did not carry the death penalty; yet the principle that ‘all … who have gallows and pit for theft have one for slaughter’ (APS, i, 319 c.13) was clearly not restricted to the justiciars. Thus killing by murder and by ‘forethocht’ were different offences, and the latter fell within the sheriffs’ jurisdiction. 12 APS, i, 403–4, 705–6; Barrow, Kingdom, 111–12. 13 The Register of Brieves contained in the Ayr MS, the Bute MS and Quoniam Attachiamenta, ed. T.M. Cooper (Stair Soc. 10, 1946), 37 (Ayr MS, nos. ix, x); for an example from 1392, Registrum Episcopatus Aberdonensis [hereafter Aberdeen Reg.], ed. C. Innes, 2 vols. (Maitland Club 63, 1845), i, 187. 14 E.g. legislation of 1388–9, 1398, 1404, 1424, 1440, 1450, 1457, 1475, 1488: APS, i, 556–7, 570–1; ii, 3 c.6; 32 c.2; 35 c.2; 49 c.14; 111 c.2; 176 c.2; 207 c.6; 225 c.10; A.A.M. Duncan, ‘Councils-General, 1404–1423’, SHR 35 (1956), 135 cc.1–2. See also MacQueen, Common Law, 54–65.

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a baron).15 The baronial powers were those of ‘pit and gallows, sake and soke, toll, team and infangthief ’, a formula repeated in countless late medieval and early modern Scottish charters.16 As in England, whence it came, the terms of the sake-and-soke jingle may have had individual significances,17 but in practice they were probably simply lumped together to indicate powers of criminal jurisdiction, in particular the right to carry out the death penalty and confiscate the criminal’s possessions18 (though not to condemn or acquit a criminal, for that was always the responsibility of the suitors of the court, which in the case of baronies would be the leading men of the neighbourhood).19 Thus, according to the main digest of medieval Scots law, the early fourteenth-century Regiam Majestatem: Of civil pleas, which are not criminal and do not affect life or limb, some pertain to magistrates of burghs, others to the courts of barons, earls, bishops, abbots and other freeholders who have courts of their own according to the terms of their charters. Some of the foregoing enjoy a criminal jurisdiction, especially those who have a grant of a court with soc and sak, pit and gallows, toll and them, infangthief and outfangthief, but excepting always the pleas of the crown.20

While Regiam does not explicitly relate criminal jurisdiction to barons, that is done by the slightly later Quoniam Attachiamenta (the other main lawbook): ‘In a lesser court than that of a baron, life and limb cannot be declared forfeit unless the court-holders enjoy the same franchise in the aforesaid matters as a baron, as do certain religious and ecclesiastics.’21 Also, although the sake-andsoke jingle specifies only jurisdiction over theft, Assise Regis David (another fourteenth-century text) states that ‘all barons who have gallows and pit for theft shall also have gallows for manslaughter’.22 And Quoniam Attachiamenta records a further baronial power: ‘Every baron may clear his lands of evildoers and men of ill repute thrice in the year, by means of an inquest of trustworthy men.’23 This function (presumably connected with the ‘dittays’ made to the justi15 16 17 18 19 20

21 22

23

Carnwath Court Book, pp. xiv–xxxviii; RRS, v, 41–4; Grant, ‘Higher Nobility in Scotland’, 132– 42. E.g., ‘in unam integram et liberam baroniam … cum furca et fossa soc et sak thol et them et infang­ andthef’: RRS, v, no. 67 (dated 1315: the earliest example of the full formula). See Dictionary of the Older Scottish Tongue (now within the online Dictionary of the Scots Language), s.v. As one legal text put it in the 1360s, ‘the baron shall have the escheats of the goods of the said misdoer’: APS, i, 711 c.9. See also APS, i, 548. Carnwath Court Book, pp. lxxix–lxxxvi, xci–xcii. This also applied to the sheriff and justiciar courts. Regiam Majestatem, i.4 (APS, i, 598 c.2). ‘Outfangthief ’, which is only occasionally included in Scottish charters, meant either the right to pursue thieves outside the baron’s property, or to do justice on an outsider who committed a crime within it. Quoniam Attachiamenta, c.30 (APS, i, 652 c.27). APS, i, 319 c.13; from the second oldest manuscript of Scots law, the Ayr MS of c.1330. See also Quoniam Attachiamenta, c.16 (APS, i, 650 c.14): ‘the lord … who has a court competent to deal with homicide’. Ibid., c.28 (APS, i, 652 c.26).

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FRANCHISES NORTH OF THE BORDER

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ciar ayre) enabled action against alleged evildoers even if public evidence of crime was lacking, and in terms of local law and order would have been almost as significant as the more spectacular right to exact the death penalty. Moreover, a killer who was on good terms with his neighbours might allow himself to be caught red-handed, or, if accused, might agree to trial by the barony’s assize, in the confidence of being acquitted on grounds of self-defence or ‘chaudemelle’ (hot blood); whereas if he thought he would be condemned, he would be more likely to flee, and so would eventually be ‘put to the horn’ and outlawed. If so, then in practice very few killers would have come before justiciar ayres. Be that as it may, in general the barons had essentially the same criminal – and civil – jurisdiction within their lands as the sheriffs had within the sheriffdoms: ‘a Baron has no less power in his own courts than a Sheriff ’, one later text put it.24 Scotland’s baronies, indeed, can be regarded as administrative and judicial subdivisions of the sheriffdoms – as Quoniam Attachiamenta makes clear by stating that every suitor in a sheriff court ‘represents the person of the baron for whom he performs suit’.25 Fifteenth-century legislation shows lords of baronies required (inter alia) to hold ‘wapinshaws’ for checking the inhabitants’ military equipment and aptitude, encourage archery and ban golf and football, get rid of wolves, maintain fire precautions, deal with ‘masterful beggars’, set prices for craftsmen’s work, and ensure that wheat, peas and beans were sown.26 But the barons’ main responsibilities were clearly for local law and order, not only in administering justice through their courts, but also in the equally (or more) important police function of making arrests. This is illustrated in letters patent of Edward Balliol (as king) in 1348, stating that he had erected Kirkandrews and Balmaghie in Galloway into a free barony, with gallows and pit, sake and soke, etc., ‘in order to maintain peace and keep down robbers in the above lands’.27 Fourteenth- and fifteenth-century legislation stressed that function, and even extended it temporarily.28 Admittedly, there were provisions for punishing laxity and corruption, but that was to ensure that barons carried out their duties properly; the legislation is never anti-franchisal per se, and the baronies are simply treated as routine elements in the normal judicial machinery.29 Perhaps most striking are enactments by James I in 1426 that all lords (basically meaning barons) with lands in northern Scotland had to maintain their castles properly, 24 25 26 27

Sir Robert Spotiswoode, Practicks of the Laws of Scotland (Edinburgh, 1706), 25. Quoniam Attachiamenta, c.11 (APS, i, 649 c.9). APS, ii, 12 c.23; 13 c.6 (1426); 15–16 cc.3, 5 (1429); 18 c.13 (1430); 36 c.9 (1450); 48 c.6 (1457). CDS, iii, no. 1578. Edward Balliol, David II’s English-backed rival, was temporarily king in the 1330s, and after Neville’s Cross in 1346 exercised power in southern Scotland, especially Galloway, for several years. 28 Especially in 1373 and 1432: APS, i, 548; ii, 21–2 cc.3, 11. See also ibid., i, 570 (1397); ii, 7–8 cc.14, 24 (1425); 9 c.7 (1426); 23 c.1 (1436); 33 c.3 (1440). Note that James I’s much-vaunted law-andorder legislation merely repeated late fourteenth-century statutes, with minor modifications. 29 E.g., an act of 1469 concerning failure by ‘sheriffs and other Judges ordinary’, required the injured party to ‘first come to his Judge ordinary of temporal lands’, listed as justiciars, sheriffs, stewards (royal officers running regalities in the crown’s hands), their baillies, barons, and provosts and baillies of burghs; the rest of the statute lumped these together indiscriminately as ‘Judges’: APS, ii, 94 c.2.

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‘for the gracious governance of their lands by good policing’; and by James IV in 1496 that all barons and substantial freeholders must send their eldest sons to grammar schools and universities, ‘so that they may have knowledge and understanding of the laws, through which Justice may reign universally through all the realm’.30 The latter echoes Quoniam Attachiamenta’s remark that, since the barons were responsible for making the kingdom’s laws, they should also be responsible for administering them.31 Of course, since the baronial jurisdiction and other powers applied only to what happened within a particular barony, their general significance for Scottish justice would have depended very much on the actual size of individual baronies: the bigger and more populated they were, the more effective the barons’ police and judicial functions would have been. Some baronies were large, or even extremely large: namely the old ‘provincial’ earldoms and lordships (all held with at least baronial powers), which mostly dated back to the twelfth century and earlier.32 But the vast majority – the ordinary baronies of medieval Scotland – were much smaller, essentially local, units of land; and that applies also to the Church’s baronies, that is, the territories belonging to cathedrals, abbeys and other ecclesiastical institutions. Unfortunately, it is difficult to go far beyond that broad statement. Precise boundaries are rarely recorded for estates in medieval Scotland, and because so many Scottish records have been lost it is hard to work out even a rough approximation of their extents. On the other hand, medieval Scottish baronies were much less fragmented than English manors. Moreover, various historians going back to Cosmo Innes in the mid nineteenth century have pointed to a close relationship between the twelfth-century knights fees (which mostly became baronies) and the country’s parishes.33 In that case, a way round the problem may be found by thinking in terms of parishes, and hence roughly of local communities – which should be more illuminating than a simple assessment of area, given the great disparity in the quality of land throughout Scotland. Between the later twelfth century and the Reformation, Scotland contained over 900 parishes;34 most survived fairly unchanged into modern times,35 and 30 31

32 33

34

35

Ibid., ii, 13 c.7; 238 c.3. If the barons’ representatives made faulty judgements in the sheriff courts, they should be heavily amerced, because ‘each and every baron by whom the laws are made in the kingdom ought to be more able in taking cognisance of the laws made by them than the common people’: Quoniam Attachiamenta, c.11 (APS, i, 649 c.9). See below, pp. 176–7, 184–7. Origines Parochiales Scotiae: The Antiquities, Ecclesiastical and Territorial, of the Parishes of Scotland, ed. C. Innes et al., 2 vols in 3 (Bannatyne Club 97, 1850–5), i, p. xxvii (editor’s introduction). Also, e.g., I.B. Cowan, ‘The Development of the Parochial System in Medieval Scotland’, SHR 40 (1960), 50; Barrow, Kingdom, 294. See P.G.B. McNeill and H.L. MacQueen (eds.), Atlas of Scottish History to 1707 (Edinburgh, 1996), 347–60 (‘Parish Churches about 1300’, by D.E.R. Watt et al.); and I.B. Cowan, The Parishes of Medieval Scotland (Scottish Record Soc., 1967). As shown by the detailed accounts of parishes in Origines Parochiales; unfortunately this important project ceased after having covered only the dioceses of Glasgow (part), Argyll, the Isles, Ross, and Caithness.

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where they did not, significant pre- and post-Reformation changes are generally known.36 Therefore, by working back from the nineteenth-century parish maps, a reasonable outline of the medieval parish boundaries has been constructed.37 After that, a parish-by-parish survey – dealing with 925 in all38 – has been carried out for the late fourteenth and early fifteenth centuries, to discover whether the whole, most or some of each particular parish can be reckoned to have been held with franchisal privileges during that period.39 The survey is not exhaustive, and the answers are often far from absolute; but from it, nevertheless, it has been possible to form a reasonably good idea of the parishes, and thus of the local communities, over which baronial powers were entirely or largely exercised. The general picture – shown in Map 3 (pp. 162–3) – is striking.40 In the first decade of the fifteenth century, the territories of 869 of the 925 parishes (94 per cent) were held wholly or mostly with at least baronial powers. Conversely, there were only 19 parishes, usually around royal centres, where no territory was held baronially,41 and in some 38 others it is uncertain whether or not there was any baronial jurisdiction; but such non-baronial parishes are only a tiny proportion of the whole. Overall, during the later Middle Ages Scotland was overwhelmingly a land of franchises – perhaps more so than anywhere else in Western Europe. 36

37

38

39

40

41

Cowan, Parishes, gives pre-Reformation changes; post-Reformation changes (including transfers of territory) are noted in the parish entries in F.H. Groome (ed.), Ordnance Gazetteer of Scotland, 6 vols. (Edinburgh, 1882–5). Based particularly on the county maps (showing parish boundaries) given in Groome’s Gazetteer. The outline map of Scottish parishes used in McNeill and MacQueen, Atlas, 383–91, gives eighteenthcentury boundaries, and cannot be applied as it stands to the pre-1560 period. It is impossible to be absolutely precise about the number of parishes at any one time. The total of 925 represents my own judgement, based on a conflation of Watt’s and Cowan’s lists, and includes a few quasi-parochial ‘pendicles’. Parishes in Orkney and Shetland (not Scottish until 1468–9) and Man (not Scottish after 1333) are excluded. Ideally, account should be taken of every surviving medieval charter, and all places should be identified. I have not done that, but what is presented here is as thorough as I can currently manage. It is based on RRS, vols. i–ii, v–vi, and material collected for the forthcoming vols. iii–iv, vii (my thanks to the editors); RMS, i–ii; Grant, ‘Higher Nobility in Scotland’, 346–97; Origines Parochiales, i–ii; Cowan, Parishes; other collections of Scottish charters, especially those published by Sir William Fraser; and various local histories. Map 3 shows the likely situation in the first decade of the fifteenth century. Its parish boundaries are of course intended to be indicative rather than exact – and note that in working them out it was impossible to take account of small detached portions of parishes shown on the nineteenth-century maps (most likely to be post-medieval). The map’s tenurial categories are self-explanatory, but it must be stressed that ‘Territory held baronially (entirely or mostly)’ does not indicate an exact parish–barony equivalence: some baronies contained more than one parish, some parishes contained more than one barony, and sometimes the baronial tenure may have covered the bulk but not the entirety of a parochial territory. In 33 cases (3.5 per cent of the total), the parochial territory was divided fairly evenly between two categories; hence a small proportion of the totals in each category is made up of what have been counted as half-parishes. Because the map is concerned with parishes and tenure, ‘provincial’ earldoms and lordships are not named; but these are identified in Map 4 (p. 170; earldoms are capitalised). Note also that Map 3 deals only with land held in chief of the crown; some lay and ecclesiastical estates were held with baronial powers, but these are not shown. In these parishes the local landowners were mostly minor lairds, equivalent to subtenants within the baronies; and the role of the local baron was in effect taken by the crown itself, through its agents the sheriffs.

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This content downloaded from 141.218.30.136 on Tue, 14 Jul 2020 16:24:22 UTC All use subject to https://about.jstor.org/terms

Map 3.  Parishes, baronies, earldoms and lordships in early fifteenth-century Scotland. This content downloaded from 141.218.30.136 on Tue, 14 Jul 2020 16:24:22 UTC All use subject to https://about.jstor.org/terms

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Another major feature of the survey is the vast amount of territory that was still within the old ‘provincial’ earldoms and lordships: in terms of surface area, it was more than two-thirds of the kingdom; in terms of parishes, 425 out of 925, no less than 46 per cent. Some of these earldoms and lordships were much smaller in c.1400 than they had once been,42 but others were still huge, especially Galloway (55 parishes), Moray (46) and the Isles (45). Within the majority of earldoms and lordships that had survived essentially intact since the twelfth century or earlier, the average number of parishes was 19; half contained at least 15; and even most of those with fewer than ten parishes appear distinctly ‘provincial’.43 In general, nearly all the provincial earls or lords were responsible for local government over numerous communities and broad areas – putting them, indeed, on a par with the sheriffs.44 Then there are Church estates, held by cathedrals, abbeys and other ecclesiastical institutions. The number of parishes that they possessed entirely or almost entirely (as shown in Map 3) comes to 93, over 10 per cent of the whole. But that is an underestimate: partly because only those estates held directly from the crown have been counted, not those held of provincial earldoms or lordships;45 and partly because the ecclesiastical institutions also possessed many minor territories in other parishes. Thus, collectively, their jurisdictions would have extended across considerably more than 10 per cent of the country’s parishes and settlements, though the main individual units normally covered just one or a few parishes. As for the 350 remaining parishes – 38 per cent of the total – their territories lay completely or mostly within the jurisdiction of around three hundred and seventy ordinary local baronies.46 Moreover, if the Lordship of the Isles and the rest of the region beyond the Great Glen, where provincial earldoms and lordships predominated,47 are discounted, then in the remainder of the country the

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44 45 46

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That applies especially to Buchan (only 3 parishes in c.1400), and also to Caithness (5½), Nithsdale (3), Eskdale (2) and Liddesdale (2). But Lauderdale (4) was always small and, at best, semi-provincial. The complete list is: earldoms, Moray (46 parishes), Ross (29), Dunbar or March (20), Strathearn (18½), Fife (17), Mar (17), Lennox (15½), Atholl (11½), Carrick (8), Sutherland (7½), Angus (6), Caithness (5½), Menteith (5½), and Buchan (3); lordships, Galloway (55), the Isles (45), Annandale (29), Renfrew, plus Bute, Arran and Cowal (26), Garioch (12), Kyle Stewart (11), Lorn (10), Strathbogie (8), Cunningham (7), Badenoch (6), Lauderdale (4), Nithsdale (3), Eskdale (2), and Liddesdale (2). Note that ‘provincial’ lordships are less easy to recognise than earldoms, and lists of them differ; mine derives from Grant, ‘Higher Nobility in Scotland’, 17–21, and A. Grant, ‘The Development of the Scottish Peerage’, SHR 57 (1978), 7–11, but with amendments. And those with regality powers would have been above the sheriffs; see below, pp. 167–9, 187. E.g. the lands of Elgin, Dunblane and Dornoch cathedrals, or Paisley, Inchaffray and Sweetheart abbeys; such lands were all held with baronial powers. I listed 350 baronies (1371–1424) held directly of the crown in Grant, ‘Higher Nobility in Scotland’, 346–97, and 362 (c.1405) in McNeill and MacQueen, Atlas, 201–5 (‘Baronies, Lordships and Earldoms in the Early 15th Century’); but as a result of further research I would now add a dozen or so more. Of the 9 northern parishes outside the earldoms of Caithness and Sutherland, 5½ had formerly been in Caithness, and 3½ in the (possible) lordship of Strathnaver, but both were partitioned in the

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number of parishes consisting of ordinary baronies comes to 336 out of 816 (41 per cent), as opposed to 338 parishes inside provincial earldoms and lordships. In the main part of Scotland, therefore, the ordinary baronies accounted for virtually as many parishes, and hence local communities, as the provincial earldoms and lordships; while the balance shifts well away from the latter if the parishes in ecclesiastical possession are added (433 against 338). Almost two-thirds of these ordinary baronies (at least 64 per cent) had the same names as the parishes containing their head places;48 and, with some 370 baronies in 350 parishes, the barony–parish ratio is almost exactly oneto-one, so that on average a barony would have contained virtually the same amount of land as a parish. Averages, of course, often mislead; nevertheless, the implication is that there was a high level of correspondence between baronies and parishes. Detailed analysis of Lanarkshire shows this could be extremely close:49 in the early fifteenth century, 25 out of 28 baronies had the same names as the medieval parishes where their centres lay, and in 22 instances the barony lands appear identical to their eponymous parishes; three baronies coincided with two or three parishes each; and three others consisted merely of parts of parishes.50 But Lanarkshire was probably exceptional, because the equivalence in terms of names (89 per cent) is well above average.51 Another county analysis, for Roxburghshire, gives a somewhat different picture. It, too, contained 28 ordinary baronies in c.1400, but only 19 (68 per cent, close to the countrywide average) had the same names as parishes.52 Thirteen baronies (just under half) corresponded exactly or closely to the eponymous parishes,53 and three

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fourteenth century: Origines Parochiales, iii, 692–718, 742–7, 756–83. The lords who acquired them would have exercised the equivalent of at least baronial jurisdiction over them, but probably without charters to that effect. 232 of the 362 baronies in my Atlas list (counting only those held of the crown) had the same names as the parishes containing their head places. But I would now add to those totals, and the percentage would rise slightly. Part of my ongoing research project on medieval Clydesdale. See also Grant, ‘Higher Nobility in Scotland’, 166–73; McNeill and MacQueen, Atlas, 205 (but I would now delete Carluke and Pettinain, discount Dennistoun, in the post-1406 sheriffdom of Renfrew, and add Dunsyre barony and parish); and A. Grant, ‘Lordship and Society in Twelfth-century Clydesdale’, in H. Pryce and J. Watts (eds.), Power and Identity in the Middle Ages: Essays in Memory of Rees Davies (Oxford, 2007). Baronies containing more than one parish are: Carnwath (Carnwath, Libberton and Quothquan); Douglas (Douglas and Carmichael); Kilbride (Kilbride and Glassford); Walston (Walston and Dolphinton). Baronies that were parts of parishes are: Braidwood (in Carluke); Hartside (in Hartside/Wandel); and Mauldislie (in Carluke). Part of the Clydesdale project involves locating places recorded in pre-1500 charters. Most are identifiable, and, when assigned to individual baronies, turn out to lie either within the relevant medieval parish or, occasionally, just beyond it (the parish boundary has probably changed). Thus, in Machan barony, the 16 so-far identified places (out of 22) are all in Machan parish; in Kilbride barony, which contained Kilbride and Glassford parishes, the 33 identified places (out of 39) are all in those parishes; and none of the unidentified places can plausibly be located elsewhere. Cf. Grant, ‘Lordship and Society in Twelfth-century Clydesdale’. Based on Grant, ‘Higher Nobility in Scotland’, 392–5, Origines Parochiales, i, 277–496, and the primary sources listed in note 39 above. Bedrule, Cavers, Ednam, Hownam, Linton, Longnewton, Makerston, Maton, Maxwell, Minto, Smailholm, Wilton, and Yetholm.

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others contained more than a single parish;54 but the remaining 12 were smaller, merely portions of parishes.55 Here, therefore, the barony–parish correspondence was looser than in Lanarkshire. Yet many Roxburghshire baronies were the same as parishes; while the rest were generally substantial parts of relatively large parishes, and indeed were much the same size as the sheriffdom’s smallest parishes. Now, judging by the work done for the parish survey, it appears that the level of barony–parish correspondence in Roxburghshire is typical of the other sheriffdoms where ordinary baronies predominated, though Lanarkshire shows that even more precise equivalence was possible. Accordingly, the best general conclusions about the geographical extent of late fourteenth- and early fifteenth-century Scottish baronies are that they were as likely as not to have coincided with parishes; that when they did not they were nevertheless roughly parish-sized; and, most significantly, that they would always have consisted of one or more local communities. Thus Cosmo Innes’s suggestion does have a general validity. And these conclusions apply also to the main units within the ecclesiastical estates. Outside the provincial earldoms and lordships, therefore, late fourteenth- and early fifteenth-century Scotland would have been almost entirely covered by a network of parish-sized lay and ecclesiastical baronies, in which baronial jurisdiction, though ‘parochial’ rather than ‘provincial’, would certainly have operated effectively for the local communities. But there are two caveats. First, a dozen or so of the new baronies created during the fourteenth century consisted of non-contiguous fermtouns scattered across more than one parish – as many as six, in the case of Kelly in northeast Aberdeenshire.56 Secondly, the vagaries of inheritance meant that baronies could be partitioned, which might make the jurisdiction lapse (in which case the sheriffs would take over); in c.1400, that probably applied to just over 10 per cent of the baronies.57 Yet even when those points are taken into account, it remains highly likely that within most of the ordinary baronies (85–90 per cent) 54

Hawick contained both Hawick and Cavers Parva (or Kirktown); Sprouston contained both Sprous­ton and Lempitlaw; Jedworth, more complicatedly, contained the large upper detached section of Jedburgh parish, part of the lower section, and the whole of Southdean parish. 55 Hassendean and Chamberlainnewton, in Hassendean parish. Oxnam and Plenderleith, in Oxnam parish. Eckford, Caverton and Cessford, in Eckford parish. Crailing and Nesbit, in the lower section of Jedburgh parish. Fairnington, in Roxburgh parish. Clifton, in Morebattle parish, along with part of the disjointed barony of Riddel/Whitton, the other part of which was several miles away in Lilliesleaf parish. 56 For McNeill and MacQueen, Atlas, 202–5, I found only 10 scattered baronies; but I would now add a few more. Even so, they are a very small minority. For Kelly and other fragmented baronies that were erected out of the demesne lands of the forfeited earldom of Buchan, see A. Young, ‘The Earls and Earldom of Buchan in the Thirteenth Century’, in A. Grant and K.J. Stringer (eds.), Medieval Scotland: Crown, Lordship and Community (Edinburgh, 1993), 200. 57 In 1371–1424, 37 of the baronies detailed in Grant, ‘Higher Nobility in Scotland’, 346–97, had been partitioned: 10.5 per cent of the 350 that were held directly of the crown. What happened in such cases is unclear. Sometimes the jurisdiction was not divided, and the representative of the senior line of descent exercised it over the whole barony; but in other cases it seems to have applied only to the senior line’s share of the lands: Carnwath Court Book, pp. xxx–xxxvi. This issue needs further research.

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local barons did exercise their judicial and administrative functions. And when the provincial earldoms and lordships, plus the ecclesiastical estates, are added, it becomes abundantly clear – especially from Map 3 – that the vast majority of late fourteenth- and early fifteenth-century Scotland must have come under seigniorial courts of one kind or another. These, indeed, would have been the courts of first instance for the vast majority of the common people of Scotland – within which, since the men of the neighbourhood made the judgements, community as much as seigniorial justice was being administered. * While baronies were common, regalities were special. As the term indicates, they were held with quasi-royal powers, like medieval English palatinates. From the fourteenth century onwards, they were created by grants in liberam regalitatem, which greatly extended normal baronial powers by adding jurisdiction over the four pleas of the crown plus immunity from interference with the regality or its inhabitants by royal officers. Interestingly, such liberties are not mentioned in Regiam Majestatem or Quoniam Attachiamenta: presumably the authors did not regard regalities as part of the (essentially thirteenth-century) legal system that they were restating.58 In 1312, however, Robert I granted that Arbroath Abbey should hold Tarves (Aberdeenshire) ‘in pure and perpetual regality’, as its other possessions were held; this is the first instance of the term in a royal charter, and appears to represent an institutional innovation by the Chancellor, who was also abbot of Arbroath.59 A few months later, Robert created a new earldom of Moray for his nephew Thomas Randolph, to be held ‘in free regality with the four pleas belonging to our crown’: the earliest occurrence of the standard formula.60 Further definition – and evidence that the privileges associated with regalities existed in the thirteenth century after all – comes from 1321, when, after the king bestowed Sprouston barony in Roxburgh on his illegitimate son ‘with all liberties, as the ancestors of the late Sir John de Vescy … held the said barony’, an inquest found that the lord de Vescy formerly held the whole tenement of Sprouston regally (regaliter), by the same liberties as the Lord Alexander king of Scotland used to hold his other lands of his kingdom … and … had his justiciar, chamberlain [in Scotland, chief financial officer], chancellor, coroners, and servants, for maintaining the said lord de Vescy in the manner of the king (ad modum regis).61

Thus a grant of regality entitled the lord to appoint officers paralleling the crown’s, and, in particular, to conduct his own justiciar ayres through his own

58

Regiam Majestatem, indeed, implies that the pleas of the crown were always excluded from seign­ iorial jurisdictions: Regiam Majestatem, i.4 (APS, i, 598 c.2). 59 As argued by A.A.M. Duncan: RRS, v, no. 19, and pp. 39–40. 60 Ibid., v, no. 389. 61 RMS, i, app. II, no. 291; RRS, v, no. 172, and p. 41.

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justiciar.62 Moreover, the special powers were not only the pleas of the crown: the lord of regality could deal fully with all cases of theft, not just those where the accused was found in possession, and also with ‘dittays’, the accusations against suspected rather than evident criminals. However, in three charters granting regality status – issued by David II in 1358 for Melrose Abbey’s immediate property, by Robert II in 1378 for three of Sir James Douglas of Dalkeith’s baronies, and by the same king in 1380 for Paisley Abbey’s land in Lennox – the four pleas of the crown were specifically excluded.63 These charters indicate that tenure in liberam regalitatem did not automatically convey jurisdiction over the four pleas; instead, the crucial privilege must have been the immunity (usually reiterated in letters patent directed to all royal officers).64 But in practice this technical point was probably not hugely important, because in all other known grants of regality both the immunity from crown officers and the four pleas were explicitly or implicitly included – and Douglas of Dalkeith and Paisley Abbey did subsequently get the four pleas (what happened with Melrose Abbey is less clear).65 The two sets of privileges really went together: without immunity from interference by royal officers, the liberty would hardly be regal, yet if the pleas of the crown were excluded, immunity from the justiciar’s court would be incomplete. The effect of the combination is most obvious in the procedure of repledging: the immunity bestowed by tenure in liberam regalitatem covered the regality’s inhabitants, and so if any of them were prosecuted elsewhere, the lord of regality could ‘repledge’ them to his own court.66 In effect, therefore, inhabitants of 62

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E.g. RMS, i, nos. 920, 932; HMC, Fifteenth Report, app. VIII, 56, no. 110; Registrum Honoris de Morton [hereafter Morton Reg.], ed. C. Innes, 2 vols. (Bannatyne Club 94, 1853), ii, no. 180. Possessing the same status as the justiciars had civil as well as criminal significance: the regality court (unlike the sheriff ’s) could hear such cases as ‘dissasine’ and ‘mortancestor’; while the lord could conduct retours (like English inquisitions post mortem) and issue other administrative brieves. RRS, vi, no. 194; Morton Reg., ii, no. 165; Registrum Monasterii de Passelet [hereafter Paisley Reg.], ed. C. Innes (Maitland Club 17, 1832), 206–8. E.g. Morton Reg., ii, no. 182; Liber S. Thome de Aberbrothoc [hereafter Arbroath Reg.], ed. C. Innes and P. Chalmers, 2 vols. (Bannatyne Club 86, 1848–56), ii, no. 28. The immunity meant that regality jurisdiction minus the four pleas would still have been significantly more than what barons had, giving jurisdiction over all theft plus power to deal with ‘dittays’, possessory assizes, and other matters reserved to the justiciars. A.A.M. Duncan, however, has argued differently (RRS, v, 40), on the basis of Robert I’s charters to James lord of Douglas (a) of Buittle, with freedom from royal officers, and (b) of jurisdiction over all theft within his estates (RMS, i, app. I, nos. 37–8). Since neither grant was in regality, Duncan regards the four pleas as the determining factor. But in these charters, the level of immunity is not so complete as in grants of regality. Morton Reg., ii, no. 174 (in 1382); Paisley Reg., 73 (in 1452). With Melrose, David II’s regality charter (subsequently confirmed by Robert II) included the pleas of the crown, but also withheld ‘our four pleas’! Later, however, James I gave Melrose full regality rights over other lands, which suggests that the limitation in David II’s charter was not upheld. Liber Sancte Marie de Melros, ed. C. Innes, 2 vols. (Bannatyne Club 56, 1837), ii, nos. 476, 497, 508–9. For repledging, see in general J.I. Smith, ‘Criminal Procedure’, in Paton, Introduction to Scottish Legal History, 430–2, and Fife Court Book, 344–6. Any lord could repledge, but only in accordance with the competence of his court; so, in criminal cases, only repledging by lords of regalities would have been significant. For examples of the process, see W. Fraser, The Red Book of Grandtully, 2 vols. (Edinburgh, 1868), i, nos. 84*, 85*, 87*. These record John Logie of that ilk repledging men of his regality of Logie in 1392 and 1396 from the justiciar’s court, the chamberlain’s court (which

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regalities could not be tried (at least initially) in any of the royal courts, and indeed the king’s brieves did not run within them.67 That has made it easy to see the Scottish regalities as states within the state, as implied both in the use of the terms ‘the royalty’ and ‘the regality’ to describe areas that were directly subject to royal officers and those that were not, and in the way that the main offices within regalities mirrored those of the crown (though on a much smaller scale).68 As was said in the late seventeenth century, ‘A Lord of Regality is a Regulus, a little King.’69 What territories were held in regality in late medieval Scotland? The bulk of the royal creations – recorded in 25 royal grants – date from between 1312 and 1404.70 They consisted of the earldoms of Moray (1312), Wigtown (1341), Sutherland (1345), Strathearn (1371), Angus (1397) and Atholl (1403); the lordships of Annandale (c.1322), Man (1324) and Badenoch (1371); all the main Douglas estates (1354: including the lordships of Eskdale, Lauderdale and Liddesdale, Douglasdale and 12 other baronies); all the main Stewart estates (1404: including the earldom of Carrick, the lordships of Renfrew, Kyle and Cunningham, with Cowal, Bute and Arran, plus two other baronies); all the Douglas of Dalkeith estates (1378–82: including nine baronies); ten other individual baronies; lands belonging to Melrose and Paisley abbeys; and territory within the earldom of Lennox. A detailed referenced list, with analysis of the recipients, is given below,71 and those still held in regality in the early years of the fifteenth century are portrayed in Map 4 (p. 170).72

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dealt with offences such as forestalling in burghs), and the Perth sheriff court. Every time, Logie appeared in person, presented charters by David II and Robert II granting and confirming his regality powers, provided pledges, and then withdrew while the court considered the validity of his request. In each case that was granted, and the justiciar, chamberlain-depute and sheriff duly issued written certificates declaring what had happened. Though (as discussed below, pp. 173–6) appeals were possible, and the king could intervene. E.g., APS, ii, 19 c.21 (1430); 20 c.1 (1432); 32 c.2 (1440); 36 c.13 (1449); 225 c.9 (1491). For justiciars, chamberlains and chapels [i.e. chanceries] in regalities, see, e.g., RMS, i, nos. 920, 932; Aberdeen Reg., i, 207, 212; HMC, Fifteenth Report, app. VIII, 56, no. 110; Morton Reg., ii, no. 180; W. Fraser, The Red Book of Menteith, 2 vols. (Edinburgh, 1880), ii, 292–3; W. Fraser, Memorials of the Earls of Eglinton, 2 vols. (Edinburgh, 1859), ii, nos. 28–9. Carnwath Court Book, pp. xliii–xliv, from Sir George Mackenzie of Rosehaugh, Observations on the Acts of Parliament … (Edinburgh, 1686). The fifteenth-century kings, James I–IV, did not grant regalities nearly so extensively. The only new creations recorded in the extant Register of the Great Seal for their reigns (1424–1513) consist of various Douglas territories outwith the original Douglas regality for the 8th earl in 1451 (but that lapsed with the Douglas forfeiture of 1455), land in Carrick for Whithorn priory in 1450, and the southern estates of George Crichton, earl of Caithness (which lapsed when he died in 1454). James I’s grant to Melrose (above, note 66), James II’s grant to Glasgow Cathedral of regality over the city and barony of Glasgow in 1450, and his extension of St Andrews Cathedral’s regality in 1452, can be added, but even so these are far less significant than the 1312–1404 grants. RMS, ii, nos. 384, 474, 479, 587; Registrum Episcopatus Glasguensis, ed. C. Innes, 2 vols. (Bannatyne Club 75, and Maitland Club 61, 1843), ii, no. 356; APS, ii, 73–4. At pp. 193–7, including Table 1, ‘Grants of Regality, 1312–1404’. Map 4 shows the Scottish regalities (lay and eclesiastical) during the opening decades of the fifteenth century, when they were probably at their greatest total extent. As well as those listed here, it includes ones for which (as discussed in the following paragraph) specific grants in liberam regalitatem do not exist, especially the ‘ancient regalities’; and also some ‘quasi-regalities’ (below, p. 172). It also,

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Map 4. Regalities, earldoms and lordships in early fifteenth-century Scotland.

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That list is incomplete, however. Three other lay regalities, for which specific grants do not survive, need to be added: the earldom of Dunbar or March;73 the earldom of Caithness;74 and the lordship of Galloway75 (within which, remarkably, the fourth earl of Douglas in 1407 bestowed regality rights including the pleas of the crown over Buittle, Preston and Borgue, on James Douglas of Dalkeith, who already held the territories from him).76 Furthermore, there are what David II in 1367 called the ‘ancient regalities’ – territories held in regality since before he became king: these would have included not only Moray and Annandale (created by Robert I), but also the thirteenth-century regality of Sprouston. And Arbroath Abbey’s estates were another ancient regality: Robert I’s charter of Tarves declares that it was to be held in the same way as the abbey has always held all its other lands in regality, by the grant of its founder William I.77 William I’s foundation charter of 1178 actually states that Arbroath’s lands are to be held, with sake and soke, etc., ‘just as I possess my own lands, saving the defence of my realm and regali iusticia if the abbot is negligent about justice in his own court’.78 Edward I’s lawyers would not have accepted that as erecting a liberty, but in medieval Scotland such a formula was taken literally. Furthermore, this applies to several other early royal foundations as well: Dunfermline, Scone, St Andrews, Kelso, Holyrood and Cambuskenneth.79 Also, along

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for convenience, shows ‘provincial’ earldoms and lordships that were not regalities (earldoms are capitalised). Note that several of the fourteenth-century regalities had undergone significant changes by the early fifteenth century: Moray was considerably smaller after 1346 than in Robert I’s original grant; Wigtown’s regality was cancelled in the 1360s, and the earldom was incorporated into the lordship of Galloway in 1372; Sutherland had lapsed in c.1371 (on the death of the 5th earl without heirs of his first marriage, to whom it had been entailed); Man had been lost to England in 1333; and the Douglas estates had been partitioned between the earls of Douglas and Angus in 1389, while six of the baronies in the 1354 charter were no longer in either earl’s possession. Called a regality by George Dunbar, 10th earl of March in 1425: W. Fraser, The Book of Carlaverock, 2 vols. (Edinburgh, 1873), ii, 428. It might have become a regality as part of the deal by which the 9th earl (who had defected to England in 1401) was brought back in 1407 – perhaps to compensate for the loss of Annandale, which he had held in regality. In 1452 James II ‘annexed and incorporated’ the southern Scottish lands of George Crichton into ‘the earldom of Caithness and the regality of that same earldom’: RMS, ii, no. 587. Assuming that the charter is accurate about Caithness’s status, it would presumably have been recognised as a regality under its late fourteenth-century or early fifteenth-century earls, who were also earls of the regality of Strathearn. No charter specifically granting the lordship of Galloway in regality exists. But David II’s charter to Archibald Douglas in 1369 stated he was to hold it not only in barony but also as Robert I’s brother Edward Bruce had possessed it (RMS, i, no. 329) – which was no doubt the equivalent of regality. Galloway, moreover, had special laws and liberties, which were recognised on Archibald’s behalf in 1384 (APS, i, 551). Morton Reg., nos. 215–16; also nos. 83, 200–1. This is a most unusual grant, no doubt reflecting the 4th earl’s vast power; but the king had already given James Douglas regality rights over all his other lands, including those held of subject-superiors, so this grant was actually putting Buittle etc. on the same footing, by transferring the earl’s rights. RRS, v, no. 19. Ibid., ii, no. 197. The Charters of King David I [hereafter David I Charters, ed. G.W.S. Barrow (Woodbridge, 1999), nos. 33, 147, 159; RRS, i, no. 243. David II called Scone an ‘ancient regality’ (ibid., vi, no. 460), and that would apply to the others as well. The rest of Scotland’s abbeys and cathedrals were not so privileged, however..

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with Sprouston there was another lay ‘ancient regality’, the lordship of Garioch, granted by William I to his brother David earl of Huntingdon in c.1178 ‘as freely and fully’ as William himself had ever held the territory – which in the fourteenth century clearly denoted regality.80 How much land did these regalities cover? As Map 4 shows, in the late fourteenth and early fifteenth centuries it was a very large proportion of the whole country – amounting, in terms of parishes, to well over one-third of the total (331 out of 925: 36 per cent). Moreover, what can be thought of as ‘quasiregalities’ should be counted as well: the Lordship of the Isles, since, although technically not held in liberam regalitatem, in practice it was more independent than any of the actual regalities; the earldom of Fife, in view of the special powers exercised through the ‘Law of Clan MacDuff ’;81 and the rump of the old lordship of Nithsdale, because in c.1388 the lord of Nithsdale was given the powers of justiciar and chamberlain within the sheriffdom of Dumfries, and thus would have been the equivalent of a lord of regality within his own land there.82 That brings the total of parishes within regalities or the like to no fewer than 396 – a striking 43 per cent of all Scotland’s parishes (and hence, roughly, local communities). Or, to put it another way, less than 60 per cent of Scottish parishes lay within what was known in the fifteenth century as the ‘royalty’. Little wonder that the spread of regalities has been so roundly condemned by so many Scottish historians. Nevertheless, it must be emphasised that the regalities’ liberties were not absolute: while crown officers were excluded from them, the crown itself was not. Nor were they quite so separate as the Welsh Marcher lordships.83 For example, although medieval Scottish magnates were perfectly capable of indulging in violent feuding, private warfare was never technically acceptable, within or outwith regalities.84 Next, regalities were not free from national military obligations: their inhabitants had to fight under their lords’ banners in defence of the realm.85 Similarly, when national taxation was (occasionally) imposed, it was

80 81 82

RRS, ii, no. 205; and see below, pp. 186–7. Discussed below, pp. 181–2. Grant, ‘Higher Nobility in Scotland’, 59–63, 123–4. Most of this sheriffdom was held in regality, so in practice the lord of Nithsdale’s governmental powers were limited almost entirely to the area of Nithsdale itself, within which he himself probably possessed about three parishes. 83 They could not be called ‘virtual “states” ’ in the way that Rees Davies described the Welsh Marcher lordships: R.R. Davies, ‘The Medieval State: the Tyranny of a Concept?’, Journal of Historical Sociology 16 (2003), 294 (quoted by Keith Stringer, above, p. 9). The only lordship in Scotland that would fit Davies’s description was the anomalous Lordship of the Isles – and its power was much more alarming to the Scottish crown than any of the regalities ever were. 84 On his return in 1357, in the aftermath of the Wars of Independence, David II proclaimed a blanket ban on all private warfare, on pain of full forfeiture: APS, i, 492. The inhabitants of the North-West Highlands would not have agreed, however, which is why they were seen as such a problem by the rest of the kingdom. 85 As demonstrated by the bishops of Moray’s objections to the obligation that their lands had to provide fighting men to follow the banner of the earl – who held the earldom in regality: RRS, v, no. 389; Registrum Episcopatus Moraviensis [hereafter Moray Reg.], ed. C. Innes (Bannatyne Club 58, 1837), nos. 154, 163, 169.

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levied from regalities as well as from the ‘royalty’, albeit by the lords’ officers.86 Nor were regalities exempt from the wool customs, though if a regality included a burgh, the lord might get the customs receipts as an extra grant.87 And, as major tenants-in-chief, lords of regality had to attend parliaments and councilsgeneral (Scottish parliamentary attendance was tenurial); the contrast with Wales is highlighted by Robert I’s grant of the Isle of Man to Thomas Randolph in regality, for which personal attendance at the Scottish parliament was required.88 Most significantly, regalities created by the crown could be cancelled by the crown, as David II showed in 1367 by including ‘all regalities and liberties’ in a revocation of grants made since his accession in 1329;89 one consequence was the (temporary) confiscation of Garioch.90 Also, shortly before the act of revocation, David II ‘restored’ the earldom of Wigtown to Thomas Fleming, to be held as his grandfather had done – except that Thomas’s rights of regality were ‘for a certain reason to remain suspended’.91 But what of local justice? Was it undermined by regalities, for instance through the procedure of repledging? In the absence of court records, that is not easy to answer. Repledging did not halt the judicial process, because the accused could only be repledged to a regality court if the lord of regality gave security guaranteeing that the case would be properly heard; if it was not heard, the accuser could complain about default of justice to the king or parliament.92 But the accused might be duly tried and acquitted – especially if the ‘good men’ of the regality who formed the jury did not know the facts about a crime committed elsewhere. However, judging by England, acquittal was a fairly normal outcome in homicide cases; juries were notoriously reluctant to enforce the death penalty for killings. Moreover in Scotland, within both ‘royalty’ and regalities, the accuser could demand assythment (compensation) from the killer93 – and if 86 87

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The Exchequer Rolls of Scotland, ed. G. Burnett et al. (Edinburgh, 1878–1908), ii, 36, 425, 427 (Garioch, 1360, 1373; Strathearn, 1373); APS, ii, 4 c.10 (1424). Thomas Randolph, for instance, had all the customs of the Moray burghs, while Melrose Abbey was allowed to export its wool free of custom; but in both cases this was additional to the grant of regality: RRS, v, no. 389; vi, no. 195. RMS, i, app. I, no. 32. APS, i, 502: his second revocation. The first, in 1357, applied just to lands and revenues (ibid., 491), so the addition of regalities in 1367 may have been significant. However, the act’s purpose was essentially fiscal. RRS, vi, no. 404. Garioch would have counted as an ‘ancient regality’ exempted from the act. But David had granted it to the earl of Mar in 1358 (ibid., vi, no. 167), and the revocation was presumably of the territory, not the regality powers. Nevertheless this shows that regality did not mean immunity from crown control. Ibid., vi, no. 368. Earl Malcolm Fleming, for whom the regality had been erected, had died in c.1363. The point of the ‘pledge’ was to give a guarantee that justice would be done: see Regiam Majestatem, supplement, no. 12, and Quoniam Attachiamenta, c.6 (APS, i, 636 c.23; 648 c.4). In 1424 James I enacted that ‘the king shall give strict commandment as well within regalities as outwith under all pains and charges that after may follow, that as well to poor as to rich without fraud or favour they do full law and justice … And if the judge refuses to do the law evenly as is before said, the party complaining shall have recourse to the king’: APS, ii, 7–8 c.14. See, in general, J. Wormald, ‘Bloodfeud, Kindred and Government in Early Modern Scotland’, Past and Present, no. 87 (1980).

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the lord of regality made that impossible, then, again, the accuser would have recourse to king and parliament. Civil cases heard in regality courts could also, of course, be appealed to parliament, just as from the justiciar ayres.94 Admittedly, if a lord of regality did not execute his judicial functions properly – especially if he harboured criminals – there would have been a serious problem, as with major franchises anywhere in Europe. The ‘Laws of Malcolm MacKenneth’, written in the later 1360s by a clerk who disliked the concept of private justice, declared that all magnates who maintained malefactors ‘unjustly against the law of God and the world … are false and perjured against the king and people of the realm’.95 He was probably targeting magnates who controlled large areas of the central Highlands, especially Robert Stewart (the future Robert II) and his sons, who were in trouble with David II over law and order there.96 But there are no indications of problems within Stewart’s extensive southern lordships, so the real issue (despite the writer’s prejudices) was probably not magnate criminality but an inability to control powerful locals.97 That seems to lie behind David II’s cancellation of the regality of Wigtown, since in 1372 Thomas Fleming sold the earldom’s lands to Archibald Douglas, ‘on account of the great and grave discords and capital enmities that have arisen between me and the leading inhabitants of the said earldom’.98 In contrast, Douglas had already been granted eastern Galloway in 1369 ‘for his diligent labour and deserving service carried out effectively and devotedly for us’, and he was subsequently applauded by chroniclers for governing the whole of Galloway strongly and justly;99 he was clearly what that troublesome province needed. Thus if regalities caused problems, it was probably when their lords were insufficiently mighty, not overmighty100 – as found in England at much the same time with even the greatest magnate of all, John of Gaunt, duke of Lancaster.101 94

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E.g., APS, i, 535: an appeal to parliament from the court of the regality of Moray in 1370, along with several appeals from the justiciars’ courts (though there was no earl of Moray in 1370, and the regality was temporarily in crown hands). A.A.M. Duncan, ‘The “Laws of Malcolm MacKenneth” ’, in Grant and Stringer, Medieval Scotland, 258–9; printed in APS, i, 709–12. Duncan, ‘ “Laws of Malcolm MacKenneth” ’, 267–8; APS, i, 503, 506–7. The post-Black Death population fall probably produced a highly unstable situation in the Highlands, exacerbated by dislocations in local lordship which enabled the Stewarts to take over much of the area without having viable power-bases there: A. Grant, Independence and Nationhood (London, 1984), 203–9; see also below, note 101. RMS, i, no. 507. Ibid., i, no. 329; The Original Chronicle of Andrew of Wyntoun, ed. F.J. Amours, vi (Scottish Text Soc. 57, 1908), 393; Scotichronicon by Walter Bower, ed. D.E.R. Watt, viii (Aberdeen, 1987), 34– 5. To be really overmighty, a lord of regality would have had to have defied crown censure – which in effect was rebellion. Scottish magnates did not do that, except, most strikingly, the 8th earl of Douglas, who had vast territories in regality (cf. Map 4), and probably did regard himself as equal to the king – who eventually killed him in 1452. See Grant, Independence and Nationhood, 191–4, and A. Grant, ‘To the Medieval Foundations’, SHR 73 (1994), 10. M. Brown, The Black Douglases (East Linton, 1998), 290–5, also gives a picture of (to my mind) unacceptable behaviour by the 8th earl. See S.K. Walker, ‘Lordship and Lawlessness in the Palatinate of Lancaster, 1370–1400’, Journal of British Studies 28 (1989). Within the palatinate, Walker notes ‘constant cattle rustling, armed gangs,

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This is certainly the message of the legislation relating to regalities. Throughout the later fourteenth and earlier fifteenth centuries, they are mentioned in statutes which either required tougher and faster action on crime or tackled the issue of criminals fleeing from one jurisdiction to another. Yet such statutes did not condemn regalities and baronies: instead, they enacted anti-crime blitzes for periods of three or more years at a time, during which much of the justiciars’ jurisdiction over killings, robbery and theft were given to sheriffs and barons, making them in effect more like lords of regality. Furthermore, regalities themselves were not highlighted in this legislation; demands that their lords must carry out their functions properly are always paralleled by similar demands on the sheriffs and other crown officers.102 Two statutes in particular give the general flavour: from 1457, as to the Regalities, it is statute and ordained that all privileges and freedoms be kept as they were founded, And if any lord having Regality abuse it in prejudice of the king’s laws and breaking of the country, that they be punished by the king and by the law as applies …103

and from 1436, that neither lord of Regality, sheriff nor baron sell any thief or fine with him of theft done or to be done, under the pain to the lords of Regality doing in the contrary of loss of Regalities, and to barons, Justiciars and sheriffs of life and limb …104 In other words, there was no problem with regalities, so long as they were administered properly; but maladministration by their lords was no worse than that by sheriffs and justiciars – if anything, it was less heinous. Essentially, indeed, the regalities like the baronies were seen – at least in theory and from the standpoint of central government – as alternative agencies for the maintenance of local government. From an English crown point of view, the fact that this jurisdiction was a hereditary possession would no doubt have made it appear even more unsatisfactory. But in Scotland, unlike England, there was a much greater acceptance of hereditary jurisdiction, not only with respect to the earls and provincial lords, but also, more strikingly, in the sheriffdoms; the rule that sheriffs could serve only for one year was not known in Scotland, and many medieval Scottish sheriffs held their offices hereditarily105 – which reduces the contrast indicated by the phrase ‘royalty and regality’. Historians’ condemnation of the Scottish regalities, therefore, is surely anachronistic. Rather than

102 103 104 105

serious affrays, extortion, oppression, feuding, and several killings’, much of which was connected with the ducal retainers; yet ‘such incidents were, in themselves, unremarkable – the misdemeanours of the duke’s followers could be matched by the crimes of gentlemen all over the north’ (p. 330). The problem, Walker shows, was that Gaunt needed his retainers’ support, and so could not discipline them as the English parliament expected. That helps to put Scottish parliamentary complaints into perspective. APS, i, 548 (1373), 551–2 (1384), 570–4 (1397–8); ii, 20–2 (1432). Ibid., ii, 49 c.16. APS, ii, 23 c.1. Fife Court Book, pp. xxxiii–xxxvi.

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being seen as states within the state, they should be regarded as an integral part of an overall structure – or, to use modern jargon, as one of the elements in ‘a public–private partnership’, by which administrative and judicial responsibilities for parts of the kingdom were ‘contracted out’ to a number of special lords. * That brings us back to J.R. Strayer’s emphasis on the general use of local landlords to run local government. It is now time to take his long-term chronology into account. For Strayer, the dislocations of the ninth, tenth and eleventh centuries necessitated private government over regions, provinces and pagi,106 and hence originated the system that characterised Western European political society until at least the end of the thirteenth century, and in many countries well beyond the end of the fifteenth. How applicable is that long-term model to the history of Scottish franchises? One reaction might be that this history starts with twelfth-century ‘Normanisation’. ‘Barony’ derives from Low Latin and Old French, while the sake-andsoke jingle is Anglo-Saxon; both were in common use in post-1066 England, and from there they came to Scotland under David I and his successors. But nowadays historians are rightly wary about the idea of a new order starting from scratch in twelfth-century Scotland; the current emphasis is on a ‘continuity in aristocratic and noble power that reached across the apparent watershed represented by the appearance of a Frankish nobility in the twelfth century’.107 Thus, while David I, Malcolm IV and William I brought in many ‘new men’, they maintained plenty of ‘old’ ones – especially the earls, who were direct successors of the provincial rulers known as mormaers. The earliest mention of a mormaer (Gaelic, mormaír) is from 918; the earliest linkage with a specific province (Angus) is from 935.108 The title appears shortly after the new, unitary, kingdom of Alba (the Gaelic term for Scotland) emerged towards the end of the ninth century, following Scandinavian attacks which had devastated the smaller kingships of the previous era. Mormaír means ‘great steward’, and, as that implies, mormaers were subordinate magnates rather than independent potentates, exercising government – especially with respect to military leadership109 – on behalf of the kings of Alba over up to eleven provinces within the area from the Forth–Clyde line to the Moray Firth.110 Also, in the 106 107

Strayer, Medieval Statecraft, 69–71, 78–80. S. Boardman and A. Ross (eds.), The Exercise of Power in Medieval Scotland, c.1200–1500 (Dublin, 2003), 18 (editors’ introduction). 108 Early Sources of Scottish History, ed. A.O. Anderson, 2 vols. (Edinburgh, 1922), i, 407, 446. For the general points that follow, see, most recently, K. Forsyth, ‘Origins: Scotland to 1100’, in J. Wormald (ed.), Scotland: A History (Oxford, 2005), 26–37; T.O. Clancy and B.E. Crawford, ‘The Formation of the Scottish Kingdom’, in R.A. Houston and W.W.J. Knox (eds.), The New Penguin History of Scotland (London, 2001), 58–90. 109 Forsyth, ‘Origins’, 33; G.W.S. Barrow, The Anglo-Norman Era in Scottish History (Oxford, 1980), 161–2. 110 Atholl, Strathearn, Fife, Gowrie, Angus, Mearns, Mar, Buchan and Moray; and also, probably, Menteith and Lennox. From the tenth to the mid twelfth centuries, mormaers and earls are recorded

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regions to the south (Strathclyde and Lothian) and north (beyond Moray), which were gradually annexed by Alba/Scotland in the tenth and eleventh centuries, a basically similar pattern of provincial lordship developed.111 This tallies well with Strayer’s long-term model. However, pre-twelfth-century Alba/Scotland did not have a neat structure of large-scale regional lordship; the pattern was much more complex. In addition to mormaers or earls, there were the king’s thanes, responsible for the crown’s own estates (though earls had their thanes, too).112 The term ‘thane’, like ‘earl’, is probably an eleventh-century borrowing from Anglo-Scandinavian Northumbria, and seems to have replaced the Gaelic word toísech (toiseach).113 The lands run by thanes – which came to be called ‘thanages’ – are examples of the ancient territorial units (found throughout the British mainland) once commonly known as ‘shires’ and, nowadays, as ‘multiple estates’.114 Strikingly, the king’s thanages occupied substantial portions of each province, hemming the earldoms in and even penetrating them (as with Auchterarder thanage, entirely within the earldom of Strathearn). Thus, in the early twelfth century, none of the mormaers or earls can have possessed all the lands in their provinces; indeed by then Gowrie and Mearns had been taken entirely, and Angus mostly, into the crown’s hands. Hence, as a reference by Malcolm IV to lands in Gowrie ‘both of the earldom and of my regality’ illustrates, Alba and Scotland had a two-part structure, divided between the land of the mormaers or earls (the crown’s provincial agents) and the land of the king’s thanes (the crown’s local agents).115 Furthermore, the distinction between royal land and mormaer land had probably always existed: detailed analysis of pre-twelfth-century Gaelic notes of grants to the old monastery of Deer (north of Aberdeen) shows, in the provinces of Buchan and Mar to which they refer, a clear distinction and no overlap between estates under the mormaers’ lordship and estates directly under the

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in Angus, Mar, Buchan and Moray (in Moray they were also ‘kings’); Atholl had a ‘satrap’ (i.e. a mormaer) and earls; Fife and Strathearn had earls; Gowrie is an earldom; Mearns had a ‘comes’ (in 1094; presumably a mormaer). As for Menteith and Lennox, they were earldoms before 1163 and 1178 respectively. Though the title ‘mormaer’ is not used there. The obvious example is the kingdom/lordship of Galloway, but the south-west also contained Strathnith/Nithsdale, Carrick (eventually an earldom), and perhaps several other provincial units: G.W.S. Barrow, ‘The Pattern of Lordship and Feudal Settlement in Cumbria’, Journal of Medieval History 1 (1975), 125–8. In Lothian, the earldom of Dunbar (later March) emerged as ultimate successor to northern Bernicia. It must be added that the essentially independent Western Highlands and Islands are not counted here. For what follows, see A. Grant, ‘The Construction of the Early Scottish State’, in J.R. Maddicott and D.M. Palliser (eds.), The Medieval State: Essays presented to James Campbell (London, 2000); Barrow, Kingdom, chap. 1 (‘Pre-feudal Scotland: Shires and Thanes’); and A. Grant, ‘Thanes and Thanages’, in Grant and Stringer, Medieval Scotland. Sixty-five royal thanages, stretching across east-central Scotland from Dingwall in the north to Haddington in the south, have been definitely identified, and no doubt there were originally many more. Toísech is a more general word for local lord; but since earls, too, had their thanes, the equation is probably reasonably exact. Barrow, Kingdom, 53–68; S.T. Driscoll, ‘The Archaeology of State Formation in Scotland’, in W.S. Hanson and E.A. Slater (eds.), Scottish Archaeology: New Perceptions (Aberdeen, 1991) (though I would be cautious about use of the term ‘thanage’). RRS, i, no. 245; Grant, ‘Construction of the Early Scottish State’, 56–63.

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king’s.116 What had probably been going on is illustrated by ‘cuthill’ placenames, which, as Geoffrey Barrow has demonstrated, derived from the Gaelic comhdhail (‘assembly’ or ‘tryst’), and almost certainly represent meeting-points for popular courts. Barrow’s suggestion ‘that a customary court meeting-place might be expected for each shire of the early type, and that some at least of the surviving cuthill names refer to such localities’, is certainly valid:117 of 61 cuthill names,118 31 (51 per cent) are within either thanages or shires; and another 16 (26 per cent) are inside earldoms.119 This indicates that the network of shires, with ‘cuthill’ courts, was in existence well before the mormaerdoms appeared in the early tenth century.120 Presumably, therefore, the mormaers had been given or simply acquired lordship, especially the right to exact cain (Gaelic, cáin) or tribute, over a number (perhaps the majority) of shires within their provinces; but many shires had been kept in more direct royal possession, and were run by toiseachs or (eventually) king’s thanes.121 The ‘cuthill’ courts, however, were not seigniorial. In 1329, a lease by Arbroath Abbey mentioned ‘the court which is called Couthal for the men residing within the said land, to deal with the countless acts arising amongst themselves only’; and although in the early sixteenth century sessions of the Carnwath barony

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Demonstrated most convincingly in a so-far unpublished paper by Dauvit Broun, ‘Lordship over Land in the Property-records in the Book of Deer’; I am extremely grateful to Dr Broun for giving me a copy of this paper and permitting me to cite it. G.W.S. Barrow, Scotland and its Neighbours in the Middle Ages (London, 1992), chap. 11 (‘Popular Courts’); quotation from p. 227. Listed ibid., 231–40; they are scattered fairly evenly across eastern Scotland from the Dornoch Firth to the River Tweed, though nos. 1.31 and 2.33 are in Lanarkshire and Ayrshire. The full list totals 64, but three are discounted here: 1.27, a modern name (my thanks to Dr Simon Taylor for that information); 1.12 (‘perhaps cot + hill’), because, uniquely, it is in the same parish as another cuthill (2.11); and 2.1, Clach na Comhalaich in Lochbroom (Ullapool), which is purely Gaelic, and in a very different region. Thanages (in roughly north–south geographical order): Belhelvie (1.10), Aberdeen (1.11), Kincardine O’Neill (2.11), Aboyne (2.9), Birse (2.10), Durris (1.11), Kincardine/Fettercairn (2.12), Inverlunan (1.20), Inverkeillor (1.21), Strathardle (2.19), Coupar Angus (2.22), Longforgan (2.33), Forteviot (2.24), Kinross (1.25), Callendar (2.32): Grant, ‘Thanes and Thanages’, 72–81, plus Barrow, Kingdom, 50, for the very probable thanage of Inverlunan. Definite shires: Kingoldrum (2.16), Arbroath (2.17), Clackmannan (2.28), Stirling (2.31), Dunipace/Herbertshire (1.28): from RRS, ii, nos. 160, 197, and Barrow, Kingdom, 38, 54n. Very probable shires (i.e. old, large or significant units of territory): Spynie (2.3), Lenzie (2.4), Deer (2.5), Dunnottar (2.13), Glenesk (2.14), Earl’s Ruthven (2.18), Clunie (2.20: see APS, i, 374 c.4), Livingston (1.29), Tranent (1.30), Carnwath (1.31), Stobo/Broughton (2.30). Earldoms: Sutherland (1.1, near the burial mound of Earl Sigurd the Mighty of Orkney, d. c.892), Moray (1.2, 1.3, 2.2), Buchan (1.4, 1.5, 1.7), Mar (1.13, 1.14, 1.15, 2.7, 2.8, at its twelfth-century extent), Atholl (1.24, 2.21), Strathearn (1.26), Menteith (2.27). Five of the remaining 14 cuthill names are in twelfth-century provincial lordships: Strathbogie (1.6), Garioch (1.8, 1.9, 2.6), Kyle Stewart (2.33). The other 9 are probably all in later baronies: Strachan (1.16), Glenbervie (1.18), Lintrathen (1.19), Kellie (1.22), Logie (2.15), Megginch (2.23), Fowlis Easter (2.26), Caputh (1.23), Aberdour (2.29). How far these also represent older territorial units is unclear. Also – as postulated by Broun, ‘Lordship over Land in the Property-records in the Book of Deer’ (see above, note 116) – some shires, possessed either by heads of important local kindreds or by monasteries, may have been independent (at least with respect to cain) of both mormaers and kings; that might explain why king’s thanes cannot be assigned to every territory outside the earldoms.

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court were held ‘in the wood of Couthalley’, these were only ‘burlaw’ sessions, dealing with inter-tenant quarrels, not seigniorial justice.122 Thus in late medieval Scotland cuthill courts were restricted to minor, non-criminal affairs, and such a limitation had probably always been the case. Therefore, did serious – ‘criminal’ – offences in pre-twelfth-century Scotland come under the jurisdiction of mormaers/earls and thanes, as with the later earls and barons? The dearth of sources for early Scottish history makes that an extremely awkward question. By analogy with Anglo-Saxon England, the answer should be yes; but analogies with Gaelic Ireland – which had little or no concept of crime, with all interpersonal offences from murder to theft being handled through the kinship mechanisms of bloodfeud and compensation payments123 – suggest the opposite, especially since the concepts of the kin and of kinship justice were so significant in medieval Scotland.124 One way to tackle the problem is via the mormaers’ and earls’ main governmental function, provincial military leadership. In 1221, an assize of Alexander II stated that ‘no earl or earl’s sergeant’ could exact forfeiture for non-attendance at a recent hosting in northern Scotland from those living on lands held directly of the crown;125 hitherto, presumably, earls had been entitled to punish all delinquents within their provinces. Thus the earls’ governance was shrinking from the provinces to their own lands. But in the present context the assize’s most interesting feature is the earls’ sergeants. In 1225–6 Glasgow Cathedral was freed from having to feed and accommodate earls’ sergeants on its lands in Carrick and Lennox; while before 1308 the earl of Lennox relieved John of Luss from providing ‘testimony for the earl’s baillies or sergeants’.126 Such references demonstrate that the old system of sergeants of the peace (that is, with police functions) found in Wales and much of northern England extended into southwest Scotland127 – and the 1221 assize shows it existing throughout the whole kingdom. It must have been sergeants who had the power of rannsaich, to search for and arrest accused malefactors; and a mention of ‘conveth of sergeants’ (coneventum servientum) implies that the accommodation of sergeants on their searches was obligatory on all who owed their lords the standard hospitality dues known as conveth (Gaelic, coinnmeadh) or ‘waiting’.128 The evidence relating 122 123

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Barrow, Scotland and its Neighbours, 219–20, from Arbroath Reg., ii, no. 2; Carnwath Court Book, 13, 67, 101, 149, 152, 155, 165, 190–3; and pp. cxiii–cxvi. D. Ó Cróinin, Early Medieval Ireland, 400–1200 (London, 1995), chap. 5, esp. 114; K. Simms, From Kings to Warlords: The Changing Political Structure of Gaelic Ireland in the Later Middle Ages (Woodbridge, 1987), 89–91. Wormald, ‘Bloodfeud, Kindred and Government’; and see the important, but not absolutely consistent, comments in C.J. Neville, Native Lordship in Medieval Scotland: The Earldoms of Strath­ earn and Lennox, c.1140–1365 (Dublin, 2005), 114–15. APS, i, 398 c.2. Glasgow Reg., i, nos. 139, 141; RRS, v, no. 2. Barrow, Scotland and its Neighbours, 141–2; G.W.S. Barrow, Anglo-Norman Era, 159–61; also, more generally, R. Stewart-Brown, The Serjeants of the Peace in Medieval England and Wales (Manchester, 1936). RMS, ii, no. 187; Barrow, Anglo-Norman Era, 159–60; Barrow, Scotland and its Neighbours, 125; W. Fraser, The Lennox, 2 vols. (Edinburgh, 1874), ii, 401. See also RRS, i, nos. 181 (instructing Earl

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to sergeants indicates that, with respect to criminal matters, pre-twelfth-century Scotland was closer to England and Wales than to Ireland. When a sergeant arrested a malefactor, what then? If a trial was required, it would probably have been in the court of the province, held before the army of the province summoned by its earl or mormaer – judging by the earliest record of a Scottish lawsuit, from 1124×1130.129 That court, however, was held on the king’s command, and its judgement would have been given by the provinces’ brithems (Gaelic, breitheamhan) or judices, especially the king’s judex.130 Before c.1200, the brithems were supreme legal experts in each province, and are associated with kings and earls; so it is best to see them as dispensing justice on behalf of the king within provincial courts convened (through quasi-military summons) by the mormaers. Hence, as with leadership of the armies, the pre-twelfth-century mormaers and earls could be regarded as royal provincial officers. But if malefactors could be tried, then presumably they could be condemned to death: in which case, who would carry out the execution? Several charters from the late twelfth century onwards show earls granting lands in their earldoms to significant recipients (especially ecclesiastical landowners) with ‘baronial’ jurisdiction over life and limb, but the actual executions were almost invariably reserved to their own gallows;131 thus in that period earls could certainly put convicted criminals to death. Whether they had such powers at an earlier period is less clear. However, unless that is accepted, we must envisage the crown bestowing them ab initio on the earls between the 1120s and c.1172 – the date of the first known grant of ‘baronial’ powers by an earl – which seems improbable. That grant was made to his brother Maol-Iosa by Earl Gille-Brigte of Strathearn, who (like his predecessors) was relatively aloof from new, ‘Normanising’ ideas; so it is more likely that he was conveying powers which he and his pre­decessors (along with other earls) always possessed.132 Two points strengthen that conclusion. First, although Earl Gille-Brigte’s charter appears to have used the sakeand-soke jingle, the powers were further specified by the earliest recorded use of the phrase ‘with gallows and pit’; the earl probably had this added as an explanatory gloss on unfamiliar terminology.133 Second, a later grant of land in Strathearn (to Coupar Angus Abbey) out of territory which Maol-Iosa had also

129 130 131

132 133

Duncan of Fife that none of his men ‘shall go in conveth upon the men or lands’ of Dunfermline Abbey), and 248 (no one shall ‘take conveth upon [Scone Abbey’s] men and lands, without permission of the canons’. Both passages imply more than straightforward payments in lieu of the king’s own hospitality rights. A.C. Lawrie, Early Scottish Charters prior to 1153 (Glasgow, 1905), no. 80. Barrow, Kingdom, chap. 2 (‘The Judex’). E.g., RRS, ii, no. 136; Cartularium Comitatus de Levenax [hereafter Lennox Cart.], ed. J. Dennis­ toun (Maitland Club 24, 1833), 28, 57; Charters … relating to the Abbey of Inchaffray, ed. J. Dowden et al. (Scottish History Soc., 1st ser., 56, 1908), no. 25; J. Anderson, The Oliphants in Scotland (Edinburgh, 1879), 2; RMS, ii, no. 187. RRS, ii, no. 136; Neville, Native Lordship, 17–23 and passim. See below, pp. 189–90. The actual document is a royal confirmation, but this almost certainly followed the wording of the earl’s own charter. The unusual transfer of powers of execution may be because the recipient was the earl’s own brother.

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received from Gille-Brigte reserved to the grantor’s own gallows ‘all sentences … of loss of limb or beheading’; the unusual form of death is surely further testimony of older powers exercised by earls and mormaers. In that case, they would have been responsible for executing malefactors condemned before the brithems.134 That said, such powers would not have applied to slaughter and other interpersonal violence. In pre-twelfth-century Scotland, that would have been dealt with through kinship justice, by open or formalised bloodfeud, with cro or assythment (Anglo-Saxon wergild) being required according to tariffs laid down in the early eleventh-century ‘Laws of the Brets and the Scots’.135 However, it must be remembered that (until female succession was permitted, in the thirteenth century) each earl was head of the kindred of his earldom.136 Therefore the earls would have had ultimate responsibility for dealing with interpersonal violence relating to their kins, and hence within their earldoms – not only by ensuring that necessary compensation was paid, but also no doubt by taking or permitting vengeance on those who would or could not provide such compensation. The earls’ sergeants may have been involved in the process, because absconding killers would have to be found. Thus the earls, as heads of the major kins, must in practice have had a vital role in tackling violence within their earldoms. Further insight into the powers of pre-twelfth-century earls comes from legislation of 1384, by which (for three years) accused persons who fled were, if caught, to be summarily dispatched as if formally convicted.137 This expli­ citly overrode the regalities’ right to repledge. But, in addition, two magnates waived special privileges: Archibald Douglas, lord of Galloway, for the laws of Galloway;138 and Robert Stewart, earl of Fife, ‘chief of the law of Clan MacDuff’, which applied to the Fife kindred. According to a late sixteenthcentury definition, the ‘law’ meant that if any man-slayer within nine degrees of kinship to the earl reached ‘the cross of Clan Macduff ’ (near Newburgh, on the north-west border of Fife), he would be ‘free of the slaughter committed by him’ anywhere in Scotland; and it repeats Andrew Wyntoun’s early fifteenth-century story, that Malcolm III gave MacDuff of Fife three privileges: enthroning the kings, leading the vanguard of the army, and giving his kindred remission for killings ‘in sudden chaudemelle’ anywhere in the kingdom on payment of specified assythment.139 The connection with the earl of Fife’s inauguration right is 134 135 136 137 138 139

Charters of the Abbey of Coupar Angus, ed. D.E. Easson (Scottish History Soc., 3rd ser., 40–1, 1947), i, no. 35; RRS, ii, no. 524. The grant was by Maol-Iosa’s nephew and heir. Wormald, ‘Bloodfeud, Kindred and Government’, 58–66; APS, i, 663–5. E.g., J. Bannerman, ‘MacDuff of Fife’, and H.L. MacQueen, ‘The Kin of Kennedy, “Kenkynnol” and the Common Law’, both in Grant and Stringer, Medieval Scotland. APS, i, 550–1. See H.L. MacQueen, ‘The Laws of Galloway: A Preliminary Survey’, in R.D. Oram and G.P. Stell (eds.), Galloway: Land and Lordship (Edinburgh, 1991). John Skene, De Verborum Significatione (Edinburgh, 1597), s.v. clan-makduf. Skene cites a charter of David II in the Register [of the Great Seal] granting Fife ‘cum lege qua vocatur Clan-makduff ’ to William Ramsay; this (noted in RMS, i, app. II, no. 1228, and dating from 1358) was in one of the rolls of the Great Seal Register lost in 1661; Androw of Wyntoun, The Orygynale Cronykil of

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significant, for that was almost certainly compensation for surrendering claims to royal succession by descendants of the kings Dubh (d.966) and his son Cinead (d.1005).140 That was probably the reason for the law of Clan MacDuff, too: a special privilege for the earls to ensure remission for killings committed by their kinsmen anywhere, overriding the rights of their victims’ kins. This is close to a later medieval immunity, and could have been granted only by a king – as head of all the kingdom’s kindreds – to a particularly important member of his own kindred. And that was not all the earls of Fife enjoyed. The 1221 assize prohibiting earls from punishing men living on crown land for absence from the host did not apply to the earl, because he was the king’s mair (officer) in Fife.141 Also, in 1153×1162 Earl Duncan and several of his leading men were forbidden to ‘go in conveth upon the men and lands’ of Dunfermline Abbey – implying the use of sergeants.142 Thus, normally, the earl of Fife could exercise active government throughout the whole province, not just over his own lands, which then covered only about half of Fife.143 This seems another special privilege, probably a further aspect of the law of Clan MacDuff. Taken together, such privileges resemble later powers of regality. However, such privileges were clearly unique to the earls of Fife, and so were not enjoyed by other earls. Therefore, the powers of the normal earls and mormaers must have been rather less. They could not give their kin the same potentially automatic and country-wide protection from vengeance, while the powers of their sergeants and other officers would have been limited to their own lands, rather than – military function apart – applying to entire provinces. In other words they had become landlords of defined areas rather than provincial governors. Nevertheless, within their own lands they would still no doubt have wielded formidable powers, which, since they were heads of major kindreds, would in practice have covered what were later defined as pleas of the crown.144 But that raises the question of what happened in lands that did not belong to earls. Since the crown had its own brithems or judices in the provinces, and also its sergeants, the same general judicial procedures would doubtless have operated.145 Also, there were the thanes. Since the obligation of conveth is closely associated with thanages, it is likely that royal sergeants and other

140 141 142 143 144 145

Scotland, ed. D. Laing (Edinburgh, 1872), ii, 140–1. Note, however, that Wyntoun implies that the process took place at Cupar. HMC, Third Report, 417, gives two examples of the operation of the ‘law’: from 1391 (repledging Sir Alexander Murray, accused of the slaughter of William Spalding, from a justiciar court), and 1421 (certificate by the steward of Fife that certain parties had received its benefit, but would fulfil the law as it might be declared, with respect to the death of John Melville). The cross is now ‘MacDuff ’s Cross’: OS Grid Reference NO227166. Bannerman, ‘MacDuff of Fife’, 21–7; King Dubh was the progenitor of ‘Clan MacDuff ’. APS, i, 398 c.2. RRS, i, no. 181. Grant, ‘Construction of the Early Scottish State’, 57, 59. As illustrated for the earldom of Carrick by MacQueen, ‘Kin of Kennedy’. See, for the south-west, W.C. Dickinson, ‘Surdit de Sergaunt’, SHR 39 (1960); for Lothian, APS, i, 371 cc.1–2; for Lennox, RRS, v, no. 2. In Grant, ‘Construction of the Early Scottish State’, 51 n.19, I was dubious about royal sergeants in Scotland before 1100; but in a brilliant (sadly, unpublished)

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officers would have been accommodated within them, and would have co-operated with the thanes. But did pre-twelfth-century thanes carry out executions? It is even harder to be sure about that than it is for the earls. The fact that the sake-and-soke jingle was closely associated with the king’s thegns of AngloSaxon England does not automatically demonstrate the same for their Scottish counterparts (except, perhaps, in Lothian).146 Yet, if thanes did not do so, who did? One point suggesting they did have such powers is that during the twelfth century several thanages became sheriffdoms, and their thanes sheriffs. Another is that although most known thanages eventually became baronies, generally that did not happen until the fourteenth century, and before then thanages and baronies existed side by side; since the latter had ‘baronial’ powers, it is hard to envisage the thanes not having the equivalent.147 Thirdly, consider the case of Orm of Abernethy, a prominent native landowner (but not an earl) in Fife, Gowrie and Angus: in 1173×1178 William I confirmed Orm’s possession of his hereditary lands, as on the day when King David I died, with sake and soke, etc., but with gallows and pit in only two places, Abernethy for his men of Fife and Gowrie, and Inverarity for the men of his other lands.148 Such wording indicates that Orm’s gallows were already well established, at least at Abernethy; and if he and his predecessors could carry out executions, then it is highly likely that thanes could do so as well. On the other hand, since the thanes would at best have been heads of relatively minor kindreds, their role with respect to violence must have been much less important than that of the mormaers and earls. In the royal territories run by thanes, therefore, oversight (through arbitration and arranged settlement of feud) over the equivalent of the pleas of the crown surely fell chiefly on the shoulders of the king’s brithems or judices. The picture that has emerged of local government within those royal ­t erritories during the tenth and eleventh centuries, however, does not fit J.R. Strayer’s model quite so well. Thanes may have been leading men, but only within their immediate localities; they did not possess the lands of the thanages; and they were probably under fairly close royal supervision.149 Thus the pre-twelfthcentury Scottish crown did maintain a system of royal rather than private local government. But that is only one side of the coin. The other side – the world of mormaerdoms and earldoms – does correspond neatly with Strayer’s analysis, particularly in the way the mormaers and earls developed from ‘great stewards’ into magnate landlords. Within the earldoms, therefore, local government was much more the earls’ private responsibility. But the main conclusion of this foray into pre-twelfth-century Scotland must be that both sides of the coin are equally significant: as already remarked, they reflect the existence of a two-part

146 147 148 149

paper delivered at the Scottish Medievalists Conference in January 2001 Patrick Wormald persuaded me otherwise. As in R.R. Reid, ‘Barony and Thanage’, EHR 35 (1920). Cf. Barrow, Kingdom, 41; RRS, ii, 50; Grant, ‘Thanes and Thanages’, 40. Ibid., 51–5; and see below, note 172, for thirteenth-century thanages counting as baronies. RRS, ii, no. 152. Grant, ‘Thanes and Thanages’, 40–2, 56–8.

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structure which, conceptually and practically, survived as the basis of Scottish local government until the fifteenth century. * We turn now to the twelfth and thirteenth centuries, which (from the beginning of David I’s reign in 1124) have been described as Scotland’s ‘Anglo-Norman era’. Nowadays the emphasis on continuity makes that description contentious – yet the introduction of militarily dominant knights and reformed churchmen from England and France surely had important consequences. Strayer’s model provides a useful way round the issue. From his much wider viewpoint, the importance of the period lies not so much in personnel but in administrative attitudes and practices: there was extensive ‘systematization’ and ‘bureaucrati­ zation’ of government with respect to both crowns and local landowners, producing significant change yet maintaining the basic underlying principle of local government by private lords. That corresponds neatly with what was going on in twelfth- and thirteenth-century Scotland. First of all, the basic principle continued to be strongly exhibited by the old provincial earldoms – shown, for the early thirteenth century, in Map 5 (p. 186). Throughout the twelfth century, ‘native’ Scots (including the Anglian earls of Dunbar) monopolised the earldoms, including the new but distinctly Gaelic Carrick, created before 1190 from north-western Galloway; while in the thirteenth century Ross (again Gaelic) and Caithness (Scandinavian: the mainland part of Orkney)150 outweighed the single creation of an earldom for a man of ‘Anglo-Norman’ (actually Flemish) stock, William lord of Sutherland, in c.1235. There was no royal effort to ‘Normanise’ the earldoms, nor to pressurise them politically.151 Also, there is only one piece of evidence for institutional change within any of the old earldoms: by a charter of David I, Fife came to be held for knight service.152 But the charter’s text does not exist, so we do not know whether it included any confirmation of the earl’s original rights, particularly the ‘Gaelic’ law of Clan MacDuff, which the earl and his successors certainly enjoyed.153 More generally, recent research on twelfth- and thirteenth-century earldoms shows them still being run much as they probably always had been154 150 151

152 153

154

But strictly speaking these were not new: an earl of Ross is briefly recorded under David I, while Caithness is the mainland part of the Scandinavian earldom of Orkney. At least not collectively. After rebellion by the earl of Moray in 1130, however, David I suppressed that earldom; and there was long-term trouble in the far north and west and intermittent trouble in Galloway, while six earls briefly revolted in 1160. But that was far less serious than what happened in Anglo-Norman and Angevin England. Facsimiles of the National Manuscripts of Scotland (London, 1867–71), i, no. 50, by which Alexander II confirmed David’s charter, without mentioning any details except the knight service. David II explicitly confirmed the ‘Law’ in the grant to William Ramsay (above, note 139); and Robert I implicitly did so in his 1315 indenture with the earl of Fife (RRS, v, no. 72: the earl was to keep all franchises). Neville, Native Lordship, esp. chaps. 1, 5 (for Strathearn and Lennox); R.D. Oram, ‘Continuity, Adaptation and Integration: The Earls of Mar, c.1150–c.1300’, M. Brown, ‘Earldom and Kindred: The Lennox and its Earls, 1200–1458’, and A.J. MacDonald, ‘Kings of the Wild Frontier? The Earls of Dunbar or March, c.1070–1435’, all in Boardman and Ross, Exercise of Power in Medieval

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Map 5. Earldoms, lordships and sheriffdoms in early thirteenth-century Scotland.

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– except that from the mid twelfth century there is incontrovertible evidence that the earls had jurisdiction of life and limb over the inhabitants of their earldoms and (usually) a monopoly on executions within them, in addition to their headof-kin function with respect to killing and violence.155 Moreover, while the twelfth-century kings accepted that the earldoms were special and so did not erect any for their Anglo-Norman followers, they did the next best thing by giving them provincial lordships – also depicted in Map 5 – which in terms of territory and function (though not, of course, kinship) were very similar institutions. David I created seven: Annandale for Robert de Brus; Renfrew and Kyle Stewart for Walter son of Alan (first of the Stewarts); Lauderdale and Cunningham for Hugh de Morville; Liddesdale for Ranulf de Sules; and Eskdale for Robert Avenel.156 Later, under William I, the king’s brother David, earl of Huntingdon, was given Garioch; another David, son of the earl of Fife, received Strathbogie, and Hugh, grandson of Freskin (of Duffus in Moray) got Sutherland.157 Charters relating to three of these survive. The earliest, David I’s grant of Annandale in 1124, did not specify powers of government, but simply said Brus should hold it with ‘all those customs which Ranulf Meschin ever had in Carlisle’ – which amounted to all-embracing but unspecified control on behalf of the king.158 Thus Brus (and Meschin) had positions akin to those of old Scottish earls. In 1165×1173, however, William I regranted Annandale to Robert de Brus II, with more defined and limited powers: ‘the regalia pertaining to my regality, namely treasure trove, murder, premeditated assault, rape of women, arson and plunder’ were withheld.159 But William added that those accused of the serious crimes should be arrested and prosecuted (before royal justices) by a man of Annandale (chosen by the king) – which was taken to mean that, while the king could select and instruct Annandale’s ‘crowner’, sheriffs and other royal officers could not operate within the lordship.160 Something similar may have happened with Renfrew. The wording of David I’s (lost) charter to Walter son of Alan was probably vague; then in c.1161 Malcolm IV extended David’s grant, and stipulated that all Walter’s lands were to be held with sake, soke, toll, team and infangthief, rather less than the Bruces had in Annandale.161 Conversely, in c.1178 William I was much more generous to his brother Earl David, granting

155 156 157

158 159 160 161

Scotland. The only exception, of course, is Moray, which David I suppressed following rebellion in 1130. See above, pp. 179–82. Barrow, Kingdom, 281. All are in the south-west except Lauderdale (Lothian). Ibid., 299–300; A.A.M. Duncan, Scotland: The Making of the Kingdom (Edinburgh, 1975), 188, 197. All are in the north; note that Earl David and David of Fife were natives. Also, in the thirteenth century, Alexander II gave Badenoch (plus Lochaber) to Walter Comyn (ibid., 529). David I Charters, 1999), no. 16; and see Keith ­Stringer’s chapter, above. RRS, ii, no. 80; i.e. the pleas of the crown, though with a wider definition. CDS, ii, no. 1588, dated 1304; this was said to be a liberty which the lords had held ‘by the title of antiquity’ from the time of William I. RRS, i, no. 184: the first known use of the jingle in a purely Scottish context.

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Garioch ‘as freely and fully in all things as I myself ever held and possessed those lands’ (as with ecclesiastical liberties).162 That this was taken literally to denote ‘regal’ powers is proved by the fact that all Garioch’s fourteenth-century lords held it in regality,163 though the grants to them say just that it should be held as Earl David had done, and do not mention liberam regalitatem.164 The Annandale and Renfrew charters illustrate Strayer’s ‘systematization’ and ‘bureaucratization’: powers that were inexact under David I were specified more precisely. But there was no absolute standardisation. Garioch was obviously special, and presumably Robert de Brus II negotiated a compromise when William I downgraded his liberty. Renfrew, however, probably reflects what the later twelfth-century kings considered the norm, since, with one exception, there is no reason to believe that the other lordships were held with more than baronial powers.165 The exception is Lauderdale, where the Moreville lords had their own sheriffs; in the early fourteenth century it was called a ‘constabulary’ (probably deriving from the Morvilles’ office of constable) and included lands elsewhere in the kingdom, perhaps indicating higher status.166 Be that as it may, the general point is clear: lords of the new provincial lordships usually did not enjoy jurisdiction over the pleas of the crown. Nevertheless, even without such jurisdiction it is hard to imagine that within the lordships these lords and their officers did not play the leading part in catching those accused of the more serious crimes. Thus, as already remarked, the provincial lords (like the earls) would have been at least on a par with the sheriffs. But that statement can be reversed: it is better to see the sheriffs as being on a par with the provincial earls and lords. Scotland’s sheriffdoms were a twelfth-century innovation, appearing at the same time as the new provincial lordships.167 Moreover, they were very irregular in size: some were tiny (Kinross and Clackmannan); others were quite large (such as Berwick or Lanark); and some were huge (Perth, Aberdeen and particularly Inverness, which covered the modern counties of Inverness, Ross, Sutherland and Caithness). The explanation is surely that, when the sheriffdoms were created, they were fitted into an already-existing structure of earldoms and lordships. As demonstrated in Map 5, the seats of sheriffdoms slot neatly 162

163

164 165

166 167

Ibid., ii, no. 205. The charter also granted the earldom of Lennox (temporarily) and various smaller estates. Lennox subsequently reverted to the native line of earls, to whom William I’s charter did not apply; while in the fourteenth century the smaller estates – then in crown hands – were granted as baronies. Andrew Murray and Christian Bruce under Robert I, Thomas earl of Mar under David II, and Isabella Douglas and Alexander Stewart earl of Mar under Robert III: HMC, Mar and Kellie Report, 2–4; HMC, Mar and Kellie Supplementary Report, 14; Aberdeen Reg., i, 207–8, 211–12. RMS, i, app. I, no. 70; RRS, vi, no. 167; Illustrations of the Antiquities of the Shires of Aberdeen and Banff, ed. J. Robertson and G. Grub, iv (Spalding Club 32, 1862), 167–8. In the early fourteenth century, Cunningham, Liddesdale and the component parts of Eskdale were all granted as baronies, while in 1345 Sutherland was erected into a regality; in contrast to Garioch, there is no indication that any of these had previously been held with special powers: RMS, i, no. 54; app. I, no. 53; RRS, v, nos. 110, 166, 184; v, no. 96. The same probably applies to Strathbogie: RMS, i, no. 566. Barrow, Kingdom, 281, 298–9; RMS, i, no. 2; and see also ibid., i, app. I, no. 123. RRS, i, 40–50; ii, 39–42.

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into the gaps between earldoms and lordships, forming a strikingly uniform pattern.168 Therefore, although subsequently earldoms and lordships were technically included within the sheriffdoms, in practice the sheriffs’ main function must have been to administer the areas outside them. It makes sense, indeed, to regard the twelfth- and thirteenth-century Scottish sheriff as a deputy earl or lord: literally, a vicecomes. The areas administered by the sheriffs correspond, of course, to the ‘royal’ half of the pre-twelfth-century two-part governmental structure. North of the Forth, this had previously been run through the thanages, which were downgraded but not swept away after 1124: only a minority were alienated (mostly to ‘native’ lords connected with the royal kindred), and at least 40 out of 65 identifiable king’s thanages were still apparently in existence at the end of the thirteenth century.169 On the other hand, alongside the surviving thanages there were now numerous ‘feudal’ estates – held of the crown by barons rather than run for it by thanes – which David I and his successors had given to their ‘Anglo-Norman’ followers, either out of parts of the thanages (which were thus slimmed down), or out of other territories that had come into crown possession, probably by forfeiture.170 South of the Forth, too, a great deal of erstwhile crown land had similarly gone to ‘Anglo-Normans’.171 Despite the thanages’ survival, the later twelfth and thirteenth centuries saw the ‘royal’ half of the country, both north and south of the Forth, being largely ‘Normanised’ and ‘feudalised’ – and within it, barons and baronies coming to dominate the localities. This is illustrated particularly well by two (rare) examples of thirteenth-century inquests into inheritances in the sheriffdoms of Lanark (1259) and Forfar (1262): they were carried out ‘by these baronies’ (per has/istas baronias), eight for Lanark and 17 for Forfar. Thus the barony’s later medieval function as the standard administrative subdivision of the sheriffdom was already thoroughly established – so much so, indeed, that the Forfar list included some thanages as ‘baronies’.172 168

169 170

171

172

For details of the sheriffdoms, see N.H. Reid and G.W.S. Barrow, The Sheriffs of Scotland: An Interim List to c.1306 (St Andrews, 2002). Map 5 includes Haddington and Linlithgow, which were probably subordinate to Edinburgh (as in the fourteenth and fifteenth centuries). Grant, ‘Thanes and Thanages’, 50–7, 72–81. E.g. lands in Gowrie (in what Malcolm IV called his lands of the earldom), Angus and Mearns (above, p. 177); and also in Moray (forfeited to David I in 1130). A number of estates owned by native landowners can also be found. See, e.g., Barrow, Kingdom, chap. 10 (‘The Beginnings of Military Feudalism’); Barrow, AngloNorman Era, passim; and, for Lanarkshire, Grant, ‘Lordship and Society in Twelfth-century Clydesdale’. APS, i, 99–100. The baronies were: Lesmahagow, Roberton, Wiston, Thankerton, Carmichael, Stonehouse, Kilbride, Dalziel (Lanark), Old Montrose, Rossie, Fithie, Kinnell, Inverkeillor, Inverlunan, Kinblathmond, Logie (‘Lexyn’), Dun, Brechin, Kinnaber, Little Pert, Melgund, Panmure, Panbride, Turin, Rescobie (Forfar). Those listed for Lanarkshire were all baronies in the following century. That is mostly true of the Forfar list, too, but there are exceptions: Old Montrose and Kinnaber were actually thanages which later became baronies, while Little Pert, Melgund and Rescobie, although distinct estates, are not found as baronies in the fourteenth and fifteenth centuries (Melgund and Rescobie may have been part of Aberlemno thanage). Thus, if anything, the mid thirteenth-century concept of barony may have been wider than in the later Middle Ages.

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The term ‘baron’ had developed in eleventh- and twelfth-century France, where it came to mean the important man of a major lord, especially the king; one aspect of this status was judicial power, including the right to execute thieves, within the baron’s land or ‘barony’. That was also the case in post-Conquest England, though there the sake-and-soke jingle (which before 1066 denoted the powers of important thegns) was used to indicate such jurisdiction.173 In Scotland, the first recorded mention of barons is in David I’s charter of Annandale to Robert de Brus at the beginning of his reign;174 thereafter the term became common. The history of the sake-and-soke jingle is less straightforward. It is not in the Annandale charter, which as we have seen used an imprecise, comparative formulation, giving Brus whatever powers Ranulf Meschin had in Carlisle (much more than sake and soke, etc.). It does occur in other charters under David I and Malcolm IV, but only once in an entirely Scottish context, namely Malcolm’s regrant of Renfrew to Walter son of Alan.175 On the other hand, several of their charters granted territory ‘as any of our barons holds his land’, and since one was to Walter son of Alan, some form of jurisdiction must have been implied.176 Thus – apart from with the major lordship of Renfrew, when Malcolm IV probably required a precise definition of the lord’s powers177 – the two kings appear happy to acknowledge ‘baronial’ powers, yet unsure about the use of the English sake-and-soke jingle (which they must have understood) in a Scottish context. We may doubt, therefore, whether the jingle exactly ‘expressed the jurisdiction which a king’s thane was expected to possess’;178 there was probably uncertainty about the equivalences. Whatever the case, it is clear that David and Malcolm did not simply transfer the English concept into Scotland. That changed under William I. Twenty-seven knight-service grants survive from his reign: seven are datable roughly to the 1160s (overall date range 1165×1174); nine to the 1170s (overall date range 1172×1182); and eleven to the years after 1185.179 Of the ‘1160s’ grants, four were to be held as other 173 174 175

176 177 178 179

D. Crouch, The Image of Aristocracy in Britain, 1000–1300 (London, 1992), 107–14; F.M. Stenton, The First Century of English Feudalism, 2nd edn (Oxford, 1961), 100–11. David I Charters, no. 16: addressed to ‘Omnibus Baronibus suis Hominibus et Amicis francis et Anglis’. RRS, i, no. 183. The earliest Scottish charter, Duncan II’s grant of land in Lothian to Durham in 1094 (Lawrie, Early Scottish Charters, no. 12), includes ‘saca et soca’; but since it was written in Durham, it is not a Scottish use of the terminology. That applies also to the other occurrences of the jingle in 1124–65: David I Charters, nos. 31/32 (again granting land in Lothian to Durham, and probably written there, so not entirely Scottish), 73, 82, 83, 84, 107, 144; RRS, i, no. 206 (all involving lands in England). David I Charters, nos. 53, 177; RRS, i, nos. 183 (the grant to Walter), 256. Renfrew’s difference, in having its baronial powers spelled out, might also have applied to the other new provincial lordships; but their charters are lost. RRS, ii, 50. Caution is also needed over some of the arguments in Reid, ‘Barony and Thanage’. Based on lists in RRS, ii, 49, 66 (n. 141); but I omit ibid., ii, no. 80 (the revision of the Annandale grant), treat nos. 344 and 345 as a single grant (the same lands are given, by the same terms, to a female and then to her husband), and add no. 258. The first seven are the only charters which could date from the 1160s. Most of the next nine must be from after 1172, and none can be later than 1182. The remaining eleven date from no earlier than 1185, and mostly no earlier than 1189. This does not include regrants (ibid., ii, nos. 375, 383, 390, 428, 473), confirmations (nos. 136, 524),

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barons or knights held their lands, while two included sake, soke, toll team and infangthief as well.180 Subsequently, the sake and soke jingle appears in every ‘later’ charter (that is, those which cannot date from before 1172); but in three of the nine ‘1170s’ charters the extra phrase ‘with gallows and pit’ is added181 – and this occurs in eight out of the eleven post-1185 ones.182 Thus, although exact dating is impossible, there was a clear evolution in terminology: first, to include the sake-and-soke jingle in all knight-service grants, probably from c.1170; second, to add the more explicit ‘gallows and pit’, which emphasises the right to execute criminals. The latter development may well have been stimulated by the need to clarify the significance of sake and soke, etc. in the context of a Gaelic earldom, since ‘gallows and pit’ first appears in a charter of c.1172 confirming the land grant in Strathearn made by Earl Gille-Brigte to his brother;183 but from the late 1170s the inclusion of ‘gallows and pit’ is routine, and there is no significant difference in its occurrence north and south of the Forth.184 That applies also to the charters issued by the thirteenth-century kings, Alexander II (1214–49) and Alexander III (1249–86). Sixteen knight-service charters survive from Alexander II’s reign, and five from Alexander III’s: in every case, the lands are to be held with sake and soke, etc., plus gallows and pit.185 Clearly, therefore, by the thirteenth century powers of baronial jurisdiction were routine in every royal land-grant of any significance, including all grants for knight-service (plus some in feu-farm), even though the tenure could be for only a fraction of a knight’s service. Moreover, the surviving charters are only a small proportion of those that must have been issued. Lanarkshire, for instance, contained 28 lay baronies in the early fourteenth century, of which at least 19 dated back to before 1200, yet the only one for which a relevant charter exists is the untypical lordship of Renfrew.186 Much the same could be said of every sheriffdom; there can, indeed, be little doubt that the great majority of the 350 or so ordinary baronies found in c.1400 had their origins in the twelfth and thirteenth centuries. Also, although before 1300 the terms ‘barony’ and ‘in

180

181 182 183 184 185

186

and grants for money renders which nevertheless conveyed jurisdictional powers (nos. 152, 340); but those all fit the pattern set out here. RRS, ii, nos. 9 (as barons or knights), 42, 43, 140 (as knights); 116, 125 (with sake and soke, etc.). The seventh, no. 85, gives no indication of any powers; here a smallish piece of land (only ⅕ of a knight’s feu) was added to a larger territory, which was later held with sake and soke, etc. (no. 459). With gallows and pit: nos. 136, 185, 200; without: nos. 135, 137, 147, 171, 204, 205. With gallows and pit: nos. 302, 334, 335, 350, 405, 418, 473, 524; without: nos. 258, 344/5, 459. RRS, ii, no. 136; and above, p. 180. Contrary to arguments in RRS, ii, 49, and Duncan, Making of the Kingdom, 207–8. I am most grateful to Keith Stringer and Cynthia Neville for help over this point. The Alexander II charters are nos. 24, 29, 86, 87, 95, 96, 158, 160, 170, 175, 202, 221, 245, 255, 285, 286, in Handlist of the Acts of Alexander II, 1214–1249, comp. J. Scoular (Edinburgh, 1959). The Alexander III ones are nos. 41, 55, 125, 127, 131, in Handlist of the Acts of Alexander III, the Guardians, John, 1259–1296, comp. G.G. Simpson (Edinburgh, 1960). Grant, ‘Lordship and Society in Twelfth-century Clydesdale’, especially Table 1 (though that does not include Renfrew); also, broadly, Barrow, Kingdom, chap. 10.

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liberam baroniam’ do not occur in charters, the 1259 and 1262 inquests do show ‘barony’ in common use, while in 1244 an act of Alexander II stipulated that ‘all those convicted of theft or homicide before the justiciars shall be handed over to the barons or their baillies to do justice upon them in their free baronies (in eorum liberis baroniis)’.187 As already demonstrated, those ordinary baronies were essentially parochial, and contrast sharply with Scotland’s first baronies, the provincial lordships of Annandale, Renfrew and so on. The contrast with England, whence the concept came, is equally striking. There, king’s barons were always great men, holding far more than a single (let alone a fractional) knight’s fee and well above ordinary knights; and though the concepts of an earl’s, an honour’s, a county’s and a locality’s barons also existed, those soon died out, so that ‘after the mid-twelfth century we hear little of the “barons” of a shire court, but [much of] its “knights” or its buzones’.188 That remark puts the ordinary Scottish barons into an illuminating perspective: their baronies were rarely greater and often less than a single knight’s fee, and they themselves were always the sheriff courts’ essential suitors. Thus they were equivalent not to English barons, but to the knights of the shire who played such a vital role in medieval England’s local government. The same, we have seen, is true of the Scottish barons; but they exercised their roles chiefly over their own parish-sized estates, through their private baronial powers. Another contrast with English baronies relates to the crown’s attitude. Alexander II’s 1244 act demonstrates its acceptance of baronial powers in the thirteenth century; there were no great Quo Warranto proceedings in Scotland.189 In the twelfth century, however, William I’s attitude might be considered more restrictive. An assize of 1180 laid down that no private courts should be held unless a sheriff or his sergeants were present, or had been summoned; if, when notified, they did not appear, the court could proceed, but ‘no baron may hold a court of battle, water or iron unless the sheriff or his sergeants are present’.190 In practice, however, the final clause was a dead letter, omitted from Regiam Majestatem’s restatement of this assize;191 judging by other legislation, the chief concern of the kings (probably including William I) was speedy justice, not supervision by sheriffs – especially since there were too many barony courts in most sheriffdoms for that to be effective. Again, Scottish practice differed from English. On the other hand, the principle of ultimate royal justice was not ignored. Another assize, attributed to William I, stated that if a thief was put to death 187 188 189

APS, i, 403 c.14. Crouch, Image of Aristocracy, 109–14 (quotation from p. 114). Except that every Scottish landowner could be required by his overlord (including the king) to ‘show his charter’ in order to demonstrate why and how he held his land: R.M. Maxtone-Graham, ‘Showing the Holding’, Juridical Review 2 (1957); MacQueen, Common Law, 37, 120–2. 190 APS, i, 374–5 c.12. 191 Regiam Majestatem, supplement, no. 2 (APS, i, 634 c.11); Carnwath Court Book, pp. xxiv–xxv, note.

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and his accuser was then killed in revenge, the king should execute the killer ‘as having broken the king’s peace’, and could not pardon him without permission of the victim’s kin, failing which that kin could take vengeance: in other words, the initial killing, though probably justifiable by kinship principles, was a major offence against both crown and kin.192 Also, in 1197 William required all prelates, earls, barons and thanes to swear not to ‘receive nor maintain thieves, man-slayers, murderers or robbers, but … bring them to justice … and take no consideration whereby justice is left undone … and if any of them is convicted of breaking this assize, he shall lose his court in perpetuity’.193 What is significant here (in the first of the many enactments requiring lords to uphold justice properly) is the inclusion of murder and robbery (pleas of the crown), which had important implications for kinship justice: henceforth, assythment (a ‘consideration’ which might prevent justice) was not permitted for such major offences, which were now public crimes. That must have been a major change to the theory of Scottish justice, and – since according to Wyntoun’s Chronicle the Law of Clan MacDuff applied only to killings done in chaudemelle194 – it probably did apply generally in practice. William I’s assizes, however, did not challenge seigniorial powers of private government as such. It is just that, in accordance with twelfth-century legal principles (reflecting the ‘bureaucratization’ and ‘standardization’ emphasised by Strayer), this concept of public crimes against the king was developed and applied – presumably with serious effects for even the old Gaelic earldoms. They were also affected indirectly but perhaps even more significantly, by another aspect of the twelfth-century changes: the practice of permitting heiresses to inherit land, which spread across Europe, had major consequences not only for Scotland’s ‘Anglo-Norman’ baronies, but also for the old Gaelic earldoms and lordships. In the 1230s, both the new lordships of Lauderdale, Cunningham and Garioch and the native lordship of Galloway were divided amongst heiresses and their husbands. As for the earldoms, while these were not divided,195 during the thirteenth century countesses brought Buchan (c.1214), Menteith (1234 and c.1260), Angus (1243) and Carrick (1271) to ‘Anglo-Norman’ families, thus destroying the fundamental link between earl and kindred;196 while in later centuries, the same happened to most of the others. Thus, in relation to local lordship – be it that of the baronies, the provincial lordships, or the earldoms – the changes which can be at least associated with Scotland’s twelfth- and thirteenth-century ‘Normanisation’ perhaps outweigh the continuities after all. *

192 193 194 195 196

APS, i, 375 c.15; also Regiam Majestatem, iv.17 (APS, i, 634 c.12). Duncan, Making of the Kingdom, 201 (slightly emended): a corrected version of APS, i, 377 c.20. Wyntoun, Orygynale Cronykil, ed. Laing, ii, 141. Except Mar, after a complex succession dispute. Handbook of British Chronology, ed. E.B. Fryde et al., 3rd edn (London, 1986), 499–515. Atholl, too, went to heiresses, but their relevant husbands were native Scots.

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That said, the ‘Strayer’ principle of private government flourished as much in the twelfth and thirteenth centuries as earlier and later; in this respect, continuity is the paramount theme. And it is now clear that there was nothing particularly new (terminology apart) about the late medieval tenures of liberam baroniam and liberam regalitatem: they are characteristic of the way Scotland had been run for centuries, and also of how localities were generally governed across the majority of medieval Europe. However, while grants in liberam baroniam were common in fourteenth-century Scotland, the grants in liberam regalitatem – detailed in Table 1 (pp. 194–5) – were special; so, to round off this chapter, they need some analysis. Fifteen of the 25 recorded grants involved earldoms or lordships in one way or another. The most significant is the first, Robert I’s creation of the huge regality of Moray, stretching across the central Highlands from the Spey to the western seaboard, in 1312.197 This vast region, previously dominated by Robert’s Comyn rivals,198 was now entrusted to his highly able nephew Thomas Randolph; but since Randolph had no connections with the numerous local kindreds, the grant of regality was the sole means of putting him in control. In other words, only through regality could an outsider exert authority comparable to that possessed by a traditional earl as head of an earldom’s kindreds. This applies also to Randolph’s regalities over Man and, in a sense, Annandale;199 to Malcolm Fleming’s grant of Wigtown (west Galloway) in 1341; and, later, to David Stewart’s regality in Strathearn (1371) and Robert Stewart’s over Atholl (1403). Moreover, Sutherland became a regality in 1345, and Angus in 1397; the lands of the new earldom of Douglas (1358) were already held in regality; and when the earldom of Crawford was created in 1398, Crawford barony was raised to regality. In fourteenth-century Scotland, earldoms and regalities seem to go together. But such a connection was far from absolute. Although Robert duke of Albany was granted Atholl in regality, and also (in 1389) the barony of Strathord,200 he had no such grant for Fife and Menteith. Nor did his father Robert Stewart (eventually Robert II) for Strathearn; nor his brother John (eventually Robert III) for Carrick or Atholl. Also, Mar was never technically a regality (though Garioch was); nor was Lennox. The implication is that formal grants of regality were unnecessary where the old line of earls survived, and that (with Fife, Menteith

197

At the start of Robert II’s reign, when temporarily in crown hands, the earldom was slimmed down: Badenoch and Urquhart, went to the king’s sons Alexander and David, while Lochaber (possessed by the Lord of the Isles) was detached; nevertheless, the rest, granted to the king’s son-in-law John Dunbar, was still (at 46 parishes) one of the largest earldoms or lordships in the kingdom. RMS, i, nos. 382, 389, 405. 198 A. Young, Robert the Bruce’s Rivals: The Comyns, 1212–1314 (East Linton, 1997), 147–52. 199 Since he was not the actual Bruce heir. Here, of course, the grant of regality clarified the previous situation. 200 Both regalities probably countered the power of a major Atholl kindred, Clann Donnchaidh (Robertsons): see S. Boardman, The Early Stewart Kings: Robert II and Robert III, 1371–1406 (East Linton, 1996), 7, 31, 169–70, 259.

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Robert I

Robert I

David II David II

David II

David II David II David II Robert II Robert II Robert II Robert II

Robert II Robert II Robert II Robert II Robert II

1324 

1341  1345 

1354 

1358  1366  1367  1371  1371  1377  1378–86

1380  1384  1384  1385  1389 

King  Robert I

c.1322 

Date  1312 

Paisley Abbey Alexander Stewart, the king’s son Walter lord of Lennox Duncan earl of Lennox Robert earl of Fife, the king’s son

Melrose Abbey John Logie, the king’s stepson John Herries David Stewart, the king’s son Alexander Stewart, the king’s son James Lindsay, the king’s nephew James Douglas of Dalkeith, whose son married the heir to the throne’s daughter

Recipient Thomas Randolph earl of Moray, the king’s nephew Thomas Randolph earl of Moray, the king’s nephew Thomas Randolph earl of Moray, the king’s nephew Malcolm Fleming, earl of Wigtown William earl of Sutherland, the king’s brother-in-law William lord (later earl) of Douglas

All his estates: incl. lordships of Lauderdale, Liddesdale, and Selkirk; Douglas barony (Lanark); 14 other baronies; and other lands Land round Melrose Logie barony (Perth) Terregles barony (Dumfries) Earldom of Strathearn Lordship of Badenoch (formerly in Moray) Kirkmichael barony (Dumfries) (a) Dalkeith, Calderclere (Lothian), and Kilbucho (Peebles) baronies (b) The above, plus his other estates, incl. 9 baronies in Fife, Lothian, Berwick, Peebles, Lanark, Dumfries (c) reorganisation into two regalities, of Dalkeith and Morton Kilbride in Lennox Abernethy barony (Inverness) Milndovan and ‘Achyndonane’, in Lennox Craigroyston and ‘MacGilchrist’s land’, in Lennox Strathord barony (Perth)

Earldom of Wigtown Earldom of Sutherland

Lordship of Man

Lordship of Annandale

Regality Lands (with sheriffdoms) Earldom of Moray

Table 1.  Grants of Regality, 1312–1404

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Robert III Robert III

Robert III

Robert III

1398  1398 

1403 

1404 

James Stewart, the king’s illeg. son Paisley Abbey George Douglas earl of Angus, the king’s son-in-law Thomas Erskine David Lindsay earl of Crawford, the king’s brother-in-law Robert duke of Albany and earl of Fife, the king’s brother James Stewart, the king’s son and heir Stewart lands: Earldom of Carrick. Lordships of Renfrew, Kyle and Cunningham, plus Cowal, Bute, Arran and 2 baronies

Earldom of Atholl

Alloa (Clackmannan) Crawford (Lanark)

(East) Kilbride barony (Lanarkshire) All Paisley’s lands that were held of the Stewarts Earldom of Angus, plus Abernethy (Perth) and Bunkle (Berwick) baronies

SOURCES: Robert I: RRS, v, no. 389; RMS, i, app. I, nos. 32, 34. David II: RRS, vi, nos. 39, 96, 194, 353, 373; RMS, i, app. I, no. 123. Robert II: RMS, i, nos. 399, 590; Moray Reg., 472–3; National Archives of Scotland, Maitland Thomson Transcripts, GD212/11/1, s.d. 7.10.1384; Morton Reg., ii, nos. 165–6, 174, 177; Paisley Reg., 206–8; Fraser, Lennox, ii, no. 31; Lennox Cart., 7–8; Fraser, Grandtully, no. 113*. Robert III: ‘Miscellaneous charters, 1315–1401’, Scot. Hist. Soc. Miscellany V, 40; Paisley Reg., 91–2; RMS, i, app. II, nos. 1754, 1810; Fraser, Douglas, iii, no. 302; HMC, Mar and Kellie Supplementary Report, 11; Edinburgh, National Library of Scotland, MS Advocates 34.6.24, p. 39; HMC, Mar and Kellie Report, 7.

Robert III Robert III Robert III

1391×93  1396  1397 

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ALEXANDER GRANT

and Strathearn) the Stewart earls maintained continuity with the old families.201 On the other hand, evidence from Lennox counters any neat equation of native earls’ powers with those of regality. In 1392, a contract between Duncan earl of Lennox and Robert Stewart earl of Fife stated that, while Fife was justiciar, Earl Duncan would be his deputy for Lennox, and have a third of the profits of justiciar ayres there – so, unlike a regality, Lennox was not immune from justiciars.202 Also, in 1385, when Duncan was granted the earldom following his parents’ resignation (his mother was the previous earl’s heiress, and his father, Walter of Faslane ‘lord of Lennox’, headed the senior cadet branch), it was with sake, soke, toll, team, infangthief and outfangthief; but, in addition, he was given regality over Arrochar (‘MacGilchrist’s land’) and Craigroyston, Highland areas beyond Loch Lomond held respectively by another cadet branch and by his father Walter of Faslane.203 As well as indicating tension between Duncan and his father,204 this confirms that regality powers were superior to those traditionally exercised by earls within the old earldoms. The grant of regality over lands in Lennox echoes a slightly earlier grant of the crown property of Milndovan and ‘Achyndonane’ in Lennox, to Walter of Faslane and his assigns in liberam regalitatem; the property was in Cardross (bought by Robert I from an earlier earl of Lennox), and the intention was surely to make it independent of the earldom.205 Both grants, therefore, were political, providing unchallengeable control and freedom from interference. On a far greater scale, that probably applies to the vast Stewart and Douglas regalities as well. In Robert III’s last years his brother the duke of Albany was running the kingdom, and the purpose of creating all the Stewart family lands into a regality for the king’s young heir James was surely to give him a separate principality outside Albany’s influence.206 Similarly, David II’s erection of the Douglas estates into a regality in 1354, during a temporary return from English captivity, not only confirmed William lord of Douglas’s recently established dominance over much of southern Scotland, but also undermined the influence of David’s hated nephew Robert Stewart, who was guardian in his absence.207 Much the same happened in 1366: David II made Robert Stewart agree that Logie, the ancestral land of David’s stepson John Logie (whom Stewart detested), should 201

202 203 204

205 206 207

In Strathearn, Robert Stewart senior had married the heiress of the old line (from which Strathearn had been confiscated in 1344), and in 1360 he acted as head of the earldom’s kindreds: Fraser, Menteith, ii, no. 29 (p. 244). His son, Robert Stewart junior, had married the heiress to Menteith, and through her also had a claim to Fife after its heiress Isabella (who resigned the earldom to him); with Fife, he clearly did have a head-of-kin position, because he operated the ‘Law of Clan MacDuff’. Fraser, Lennox, ii, no. 33. Lennox Cart., 2–4, 6–8, 64–5. Brown, ‘Earldom and Kindred: The Lennox and its Earls’, 214–15. Since another issue in charters to Walter and Duncan in 1384–5 was wapinshaws – and hence no doubt leadership of the earldom’s army – the outbreak of war with England in 1384 may have been the trigger (Fraser, Lennox, ii, no. 31; Lennox Cart., 8–9). Fraser, Lennox, ii, no. 31 (a better text than Lennox Cart., 4–5); RMS, i, no. 90. HMC, Mar and Kellie Report, 7; Boardman, Early Stewart Kings, 282. RMS, i, app. I, no. 123; M. Penman, David II, 1329–71 (East Linton, 2004), 179.

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be detached from the earldom of Strathearn, and the king then made it into a regality, thereby cementing its detachment.208 Here, Logie’s relationship to David II was vital; the creation of this regality is also an example of royal family patronage.209 That can be said about most of the grants in Table 1: of 18 lay recipients, 12 belonged to the royal family. With half, their regalities had governmental or political significance;210 but with the others, there is little reason apart from family links. Thus the regality of Suther­ land was granted in 1345 to Earl William in jointure with David II’s sister; the marriage was eventually childless, and technically the regality lapsed on William’s death.211 More explicitly, when James Douglas of Dalkeith married his eldest son to a daughter of John earl of Carrick, the heir to the throne, in 1378, part of the contract was that Carrick would get his father to make the Dalkeith estates into regalities, and this duly happened (though in stages, indicating royal reluctance).212 In 1377, James Lindsay of Crawford, Robert II’s nephew, was given regality over his Dumfriesshire barony of Kirkmichael; that is also attributable to Carrick, with whom Lindsay was closely linked.213 And when Carrick became king, he created regalities for a son-in-law, George Douglas earl of Angus (1397), a brother-in-law, David Lindsay earl of Crawford (1398), and his own illegitimate son James (1391×1393).214 While the erection of regalities for connections of the royal family goes back to Sprouston, given to the husband of an illegitimate daughter of William I,215 it can be particularly associated with Robert III, before and after his accession. Now, it has been said that in the case of the ‘small country parish’ of Sprous­ton, regality privileges seem ‘absurd’.216 The same would apply to several of the later family grants: Logie, Kirkmichael, Crawford and Kilbride were only parish-sized units – and so were Terregles and Alloa, created for the prominent royal councillors John Herries and Thomas Erskine in 1367 and 1398 respectively.217 None of these was a spectacular liberty; instead, they can all be regarded as superior versions of the ordinary baronies, without any wider signif208 209 210 211 212 213 214

215 216

217

RRS, vi, no. 353; Penman, David II, 354. At the same time, Logie was also granted the lordship and regality of Annandale: RRS, vi, no. 354. I.e. those granted to Randolph, Logie, David Stewart, Alexander Stewart, Robert Stewart, and Prince James. RRS, vi, no. 96. Morton Reg., ii, nos. 162, 165–6, 174, 177. The deal was not fully completed until 1386, when Carrick himself was running the kingdom. RMS, i, no. 577; Boardman, Early Stewart Kings, 55, 81. RMS, i, app. II, nos. 1754, 1810; W. Fraser, The Douglas Book (Edinburgh, 1885), iii, no. 302; ‘Miscellaneous Charters, 1315–1401’, ed. W. Angus, in Miscellany V (Scottish History Soc. 21, 1933), 40. K.J. Stringer, ‘Nobility and Identity in Medieval Britain and Ireland: The de Vescy Family, c.1120– 1314’, in B. Smith (ed.), Britain and Ireland 900–1300 (Cambridge, 1999), 204–5. Barrow, Robert Bruce, 283. Actually the original regality was considerably larger than a single parish, but nevertheless not huge: Stringer, ‘Nobility and Identity’, 90; W. Fraser, The Scotts of Buccleuch, 2 vols. (Edinburgh, 1878), ii, no. 25. RRS, vi, no. 373; HMC, Mar and Kellie Supplementary Report, 11; Penman, David II, 343–4, etc.; Boardman, Early Stewart Kings, 204, etc.

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198

ALEXANDER GRANT

icance apart from freedom from external interference and, of course, the special personal status that their lords would have enjoyed.218 And although combining numerous scattered baronies into one regality would have provided considerable administrative convenience and additional profits of justice for its lord, again such scattered regalities are unlikely to have had a particularly significant effect on government at any level above the parochial. It is, therefore, only the relatively few provincial regalities that really mattered in regional or national terms; the rest may be regarded as essentially honorific. Thus, over the course of the fourteenth century, grants of regality became less likely to involve major governmental functions (as most obviously with Randolph’s earldom of Moray), and more likely to be simply a matter of prestige. This trend is echoed with respect to the earldoms: of the four new fourteenth-century earldoms, Moray and Wigtown were obviously provincial, but Douglas, which for all its size combined scattered lands, was rather less so, and Crawford was essentially honorific – as was to be the case with most of the earldoms created in the fifteenth century, as well. Furthermore, the baronies exhibit a similar trend. As has been seen, although most fourteenth-century baronies corresponded more or less closely with parishes and local communities, a dozen or so were created out of scattered, non-contiguous, fermtouns.219 That, again, was to happen more and more frequently during the fifteenth century – and while no fourteenth-century baronies had lands in more than one sheriffdom, many fifteenth-century ones did, because it became increasingly common to combine all a landowner’s estates, no matter where and how big they were, into a single barony.220 Meanwhile, the great provincial units – earldoms, lordships and big regalities – were breaking up and disappearing. An act of 1401 laid down that if an earldom came into the crown’s hands, any baronies within it were to be detached, so that in future they would be held directly of the crown;221 that took several baronies out of earldoms in the following century. Next, after 1406 the heir to the throne was never an adult landowner, and therefore, despite the creation of the Stewart regality in 1404, in practice all free tenants in the Stewart properties held their lands directly of the king (albeit under the title ‘Steward of Scotland’) – so that the earldom of Carrick and the lordships of Renfrew, Kyle and Cunningham in effect disappeared. Much the same happened, too, with the great Douglas regality – but more violently, because all the territories amassed by successive earls of Douglas (including Galloway and Annandale as well as the original lordships and baronies) were forfeited to the crown in 1455. During the reigns of James I and James II, also, most of the other provincial

218

Note that while two Lindsay baronies, Kirkmichael and Crawford, became regalities, the rest of the family estates did not, even when the earldom of Crawford was created. 219 See above, p. 166. 220 Some random examples are RMS, ii, nos. 574, 1178, 1534, 1869, 2106, 2455. 221 APS, i, 576.

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earldoms and lordships came into crown hands through forfeiture or escheat;222 and although some were subsequently granted out, it was usually in shrunken form. This transformation of the top levels of land ownership had major consequences for Scotland’s franchises. By the late fifteenth century, while the ­baronies survived, the major liberties – provincial earldoms, lordships and regalities – virtually disappeared, not because of any direct attack but because of political mishaps and genetic failure. As a result, more and more land came under direct crown control, and the old two-part governmental structure faded away. There was still, of course, private government by local landlords, but mostly at only baronial level – and here, the parish/community equivalence was also fading. Instead, the rapidly extending crown lands were run by royal officers, stewards and baillies as well as sheriffs. Although these were generally recruited from the landowning classes, they were no longer governing as private landlords. Thus, over the fifteenth century, the system of local government through a private–public partnership between crown and local landlords, by which Scotland had been run for around half a millennium, was transformed. In terms of J.R. Strayer’s model, with which this chapter started, it corresponds to his ‘medieval origins of the modern state’ concept.223 And for Scotland, in this respect, the fifteenth century can for once be seen as the end of the Middle Ages.

222

A. Grant, ‘Earls and Earldoms in Late Medieval Scotland (c.1310–1460)’, in J. Bossy and P. Jupp (eds.), Essays presented to Michael Roberts (Belfast, 1976). 223 Strayer, Medieval Statecraft, 74, 88–9; J.R. Strayer, On the Medieval Origins of the Modern State (Princeton, 1970).

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10 The Liberties of Ireland in the Reign of Edward I

BETH HARTLAND

The Welsh March is the area most often cited as a point of comparison for conditions in the lordship of Ireland, but in the case of liberties the comparison cannot be extended far. The constitutional position of the great liberties of Ireland, created during the reign of Henry II, was much more clear-cut than that of the franchises of the Welsh March, established during the reign of Henry I: in Ireland, liberties were held from the king; and it was not necessary for Edward I to extend quo warranto proceedings there simply in order to make this point clear. Indeed, in Edward’s reign numerous petitions requesting liberties or their restoration testify to the fact that actual and potential holders of liberties in Ireland knew where the butter to enrich their bread came from. Given this appreciation of the rights of the crown, it is worth asking why the reign of Edward I was such a difficult time for liberty holders in Ireland. Was it the case, following the broad outlines of McFarlane’s argument, that Edward I had a policy for the liberties of Ireland, a policy that spelt doom and gloom for franchise holders? Otway-Ruthven may have thought so, for the picture she painted of Irish franchise holders at the end of Edward’s reign was fairly bleak, albeit accurate. She argued that in the later part of Edward’s reign there was ‘a consistent pattern of bringing pressure to bear on the greatest franchises throughout the British Isles … as opportunity offered’; and that in Ireland by the end of the reign ‘the area directly governed by royal officials was … greater than at any other period of the middle ages … the existence of a liberty did not exclude the king’s writ … [and] quo warranto inquiries resulted in the surrender of many claims to minor immunities’. The king had never had it so good, the lords of liberties had never had it so bad. A picture of Edward I as the aggressive pursuer of his rights in Ireland is one which sits well with our knowledge of the quo warranto proceedings in 

J.A. Otway-Ruthven, ‘The Constitutional Position of the Great Lordships of South Wales’, TRHS, 5th ser., 8 (1958), 1.  At the colloquium it was suggested that William de Vescy may have overstepped his authority in Kildare (below, XXX) because he was accustomed to the regalitas of his liberty at Sprouston.  J.A. Otway-Ruthven, ‘Constitutional Position of the Great Lordships of South Wales’, 15; eadem, ‘Anglo-Irish Shire Government in the Thirteenth Century’, IHS 5 (1946–7), 6–7.

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England and the Hopton Commission in Wales. There is a danger, however, for modern commentators to mistake principles for policies – the principles may have been set in stone, but the policies through which they were given expression could be more flexible, even inconsistent when the influence of patronage was brought to bear on them. Historians of medieval Britain and Ireland see Edward I as the medieval king of England most jealous of his rights and the attack on baronial liberties that occurred during his reign as intrinsically linked to him. That this is a true picture of the king is not to be doubted, but this Edward-centric view can be thrown somewhat into relief by a consideration of the contemporary history of Champagne. Edward I was not alone in flexing his jurisdictional muscle. ­ Geoffrey de Geneville, the lord of Trim, the only liberty to hold the four pleas of the crown in Ireland during Edward’s reign, was well aware of this. De ­ Geneville’s landholding spanned the English Channel as well as the Irish Sea; and his experience of defending his rights within the liberty of Trim against the officers of the Dublin government was mirrored by the experience of his elder brother Jean, the famous biographer of Louis IX of France, who in 1288 had to defend his right to absolute jurisdiction within Joinville in the high court of Champagne following the de facto acquisition of the province by France three years earlier. Joinville may not have come within the jurisdiction of the counts of Champagne until the rule of Thibaut V, which commenced in 1253; but the de Joinville family probably had to pay the tax imposed by Thibaut for his war against Navarre – an unpleasant development for the nobles of Champagne who had never before been obliged to agree a grant. Certainly Jean found himself defending his ancient right of absolute jurisdiction within Joinville in 1288 following its seizure by a bailiff on account of a failure of justice which Jean openly admitted. The parallels between the methods and rule of the counts of Champagne and the king of England in the late thirteenth century are clear. The general feeling current in England that many royal rights had been usurped clearly had echoes elsewhere. This is an appropriate point to establish exactly what the fates of the liberties of Ireland were in the reign of Edward I. The minor immunities held by lords in Ireland were attacked by quo warranto inquiries; the plea being brought, for example, against John de Cogan, a landholder in Co. Cork. John was summoned before the justices in eyre in the Easter term of 1302 to show by what right he held fairs, markets, free warren in all his demesne lands; and by what right he claimed to hold the plea of vetitum namium and to have the right of compensa 

Cf. Robin Frame, The Political Development of the British Isles 1100–1400 (Oxford, 1995), 145–7. Theodore Evergates (ed.), Feudal Society in Medieval France: Documents from the County of Champagne (Philadelphia, 1993), pp. xix–xx, 10–12, 18–19, 81, 95. As feudal overlords from c.1285 onwards, the kings of France increasingly made their presence felt leading to protests by the nobles in 1314 against the frequent impositions of Philip IV. For Geoffrey de Geneville see Beth Hartland, ‘Vaucouleurs, Ludlow and Trim: The Role of Ireland in the Career of Geoffrey de Geneville (c.1226–1314)’, IHS 32 (2001), 457–77.  M.C. Prestwich, Edward I (London, 1988), 261.

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tion for the spilling of the blood of Englishmen at his castle of Mora and in his manors in Desmond. As John was able to produce a charter of Henry III to his grandfather for the fairs, markets and free warrens we may presume that he continued to hold these franchises. He may also have managed to maintain a hold on his other immunities which had been held, as he said, by his ancestors since the first conquest of Ireland and used without interruption since that time, since Edward had conceded, in the Statute of Quo Warranto of 1290, that evidence of long use since 1189 could be considered as the grounds for the granting of new charters. When the ministers of the Dublin government calculated in c.1278 that there were twenty-four illicit franchises for every six or seven legitimate ones they must have been including the type of lesser immunity held by John de Cogan. The great liberties of Ireland were far fewer in number but it was their size and privileges that drew fire from the Dublin government. At the start of Edward I’s reign there were seven great lay liberties in Ireland: Trim and Kells (the successor liberties to Meath); Carlow, Kildare, Kilkenny and Wexford (the successor liberties to Leinster); and Ulster. With the exception of Trim, whose lord enjoyed a greater franchise, the lords of these liberties had the right to administer justice within them excluding only the four pleas reserved to the crown in Ireland, and their seneschals acted as royal officers in this respect. It was only in the case of default of justice or action by a liberty administration that the sheriff of Dublin could intervene – although the sheriff had jurisdiction over the crosslands (church lands) which lay within these liberties at all times.10 In Trim the lord also held the four crown pleas of arson, rape, treasure trove and forestall, as well as claiming the right to have writs addressed directly to him or his seneschal.11 To these seven franchises Edward added the short-lived liberty of Thomond in 1276.12 But within a few years of Thomond’s creation, Kells had been suppressed by the justiciar, Robert Ufford, who appears to have taken his lead from the Statute of Gloucester which had been enacted in England in 1278, although it was not sent to Ireland for observation until 1285.13 Ufford had also taken Agnes de Vescy’s liberty of Kildare into the king’s hands at the same time as Kells. However the two liberties did not suffer the same fate at this juncture: Kells being subsumed into the royal county of Dublin by 1280 and Kildare being speedily replevied to Agnes de Vescy.   

10 11 12 13

NAI, RC7/9, pp. 211–13. Frame, Political Development of the British Isles, 149. Documents on the Affairs of Ireland before the King’s Council, ed. G.O. Sayles (Dublin, 1979), no. 19. The editor proposes that this memorandum may have originally been attached to the justiciar’s response to the king’s order to replevy the liberty of Kildare to Agnes de Vescy (below). J.A. Otway-Ruthven, A History of Medieval Ireland (London, 1968), 183. The right to have writs addressed directly to him was also claimed by the archbishop of Armagh (NAI, EX2/3, pp. 463–4). CDI, 1252–82, no. 1192. Thomas was granted the liberties of the Earls Marshal and others in Ireland ‘during his life’; liberties in knights’ fees held in chief of the king were excluded from the grant. Statutes and Ordinances, and Acts of the Parliament of Ireland. King John to Henry V, ed. H.F. Berry (Dublin, 1907), 87.

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Reprieve for the liberty of Kildare was not permanent. The abuse of rights was never a small issue for Edward I, especially when the resulting oppression was enacted in his name. It was William de Vescy’s abuse of his power as justiciar of Ireland in summoning the royal service of Ireland against his tenant John fitz Thomas, the lord of Offaly that caused alarm bells to go off furiously, but the consequent proceedings brought abuses of his liberty of Kildare to light as well.14 Abuse of power marched in step with the de Vescy tenure of the liberty, as William followed in his mother’s footsteps by ousting her co-parceners from their proper share of the profits of the liberty;15 but William’s abuses extended to his tenants, it being alleged that his seneschal had declared the king’s letters of protection to be of no effect in staying a suit in a liberty. De Vescy was a huge embarrassment to the king, and was forced to hand over his Irish lands in return for a life interest in them. This was the punishment that fitted the crime; the suppression of the liberty, given that Agnes de Vescy’s sisters had been granted shares of the pleas and perquisites, was not. This is at least how it has been interpreted by Hand who argued that Edward treated the claims of William’s co-parceners ‘very cavalierly’.16 A petition from one of these co-parceners to Edward II in 1314, however, suggests that at the time of the deal it was envisaged that payments would be made to them from the issues of the county of Kildare;17 a statement corroborated by the resulting inquisition.18 It was not only Kells and Kildare that were seized by the Dublin government during Edward’s reign; the liberties of Carlow, Kilkenny, Wexford and Trim also were. The liberty of Carlow was taken into the king’s hands on three occasions (1284–5, 1299 and 1301),19 before being temporarily extinguished from 1306 to 1312 when the lordship reverted to the crown on the death of Roger Bigod.20 The de Valence liberty of Wexford seems to have suffered seizure twice in c.1302. The first caption followed a decision of the justices of the common pleas that false judgment had been given in a case of unjust detainment of chattels. In February 1302 the king ordered that that the liberty be replevied to Joan de Valence during pleasure whilst the justices ascertained the king of the cause

14 15 16 17

Prestwich, Edward I, 353–4. See, for example, CDI, 1252–84, no. 896; TNA, C 47/10/15/10; CJR, 1295–1303, 282–3. G.J. Hand, English Law in Ireland 1290–1324 (Cambridge, 1967), 122. TNA, SC 8/1/46. The petitioner was Cecilia de Beauchamp, daughter of Maud de Kyme, sister of Agnes de Vescy. 18 An inquisition found that when the king’s council had agreed to nullify the seal of the liberty of Kildare, it had been agreed that Matilda de Kyme and Agatha de Mortimer (two of Agnes’s sisters) should receive a share of the issues and profits of the pleas and perquisities of the new county (NAI, RC8/10, pp. 682–6). 19 TNA, SC 6/1239/4; CJR, 1295–1303, 264; CDI, 1293–1301, no. 653. The incidents in question occurred in 1284–5, 1299 and 1301. 20 For a recent interpretation of the events surrounding Roger Bigod’s surrender of the earldom of Norfolk to the king see Marc Morris, ‘The “Murder” of an English Earldom? Roger IV Bigod and Edward I’, TCE ix, 89–100; for Roger Bigod in Ireland see Beth Hartland, ‘English Lords in LateThirteenth and Early-Fourteenth-Century Ireland: Roger Bigod and the de Clare Lords of Thomond’, EHR 122 (2007), 318–48.

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of caption.21 The second seizure of the liberty was discussed in parliament at Dublin before the justiciar, John Wogan. On this occasion the escheator had undertaken to take the liberty into the king’s hands following the collection of rent by the seneschal of Wexford from a Wexford tenant who also held in capite of the king in Co. Waterford; the court delivered the judgment that ‘such cause is insufficient for taking into the king’s hands the lands of lords of Leinster’.22 The liberty of Wexford had also probably been seized in c.1280, when Edward I pardoned a trespass of Joan’s seneschal in pardoning ‘contrary to the king’s dignity’ a suit of peace belonging to the king and a fine for a death committed within the bishopric of Ferns.23 The near kinship of its lords to the king does seem to have protected the liberty of Kilkenny from seizure by Dublin government officials; in the case of Kilkenny it was the king’s anger over his daughter, Joan’s, remarriage to Ralph de Monthermer that triggered the seizure of the liberty in 1297.24 Nevertheless relations between the seneschals of Kilkenny and the Dublin ministers were not easy. In 1295 William de Athy, seneschal of Kilkenny, threw a return broken at the feet of the sheriff of Dublin so incensed was he about its form.25 Kilkenny officials ‘generally avoided appearing’ when summoned by Dublin and the sheriff of Dublin ‘was frequently ordered to intervene in the liberty’.26 However, the king’s anger with his daughter did not last forever and in 1303 he ordered a respite for a suit brought against Ralph Monthermer and his ministers who were being ‘unjustly sued’ for detaining certain prisoners in Kilkenny prison; Ralph’s service in Scotland was the official reason cited for this stay of justice.27 The documentation is best for the liberty of Trim, parts of which sat tantalisingly on the very doorstep of the Dublin government. The relationship between the lord of Trim (Geoffrey de Geneville) and the Dublin ministers excluded from government in an extensive part of the Irish lordship which would otherwise have fallen easily within the reach of the administration’s arm can be characterised as a war of attrition. Trim was seized by Dublin government officials on

21 22

23

24 25 26 27

CDI, 1302–1307, no. 32. CJR, 1295–1303, 385. This was not the end of the tension between the seneschal of Wexford and the escheator of Ireland. In 1302 the escheator reported that the seneschal wished to include land within the Wexford manor of Edermine which belonged to the Bigod barony of ‘Keyr’. Following Bigod’s death in 1306, Joan asserted her ‘rights’ as a Marshal heir to have cognisance of pleas over the former Bigod tenants in the baronies of Old Ross, New Ross and Island had been withheld from her by the Irish escheator (Trinity College, Dublin, MS 1087, fos. 31v–32v). Edward ruled that Joan was to hold these pleas, accounting for any profit, until she proved her rights. CDI, 1252–1284, no. 1690. According to Hand, English Law in Ireland, p.12, Wexford ‘may have enjoyed a measure of protection from Dublin interference through difficulty of access and the lord’s near kinship with the king’, but this offence of the seneschal would have been more than sufficient grounds for the Dublin government to intervene. CDI, 1293–1301, no. 381. CJR, 1295–1303, 72. J.C. Ward, ‘The Estates of the Clare Family, 1066–1317’ (Ph.D. thesis, University of London, 1962), 103–4. CDI, 1252–84, no. 248.

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two occasions, but this was only the tip of the iceberg: beginning in 1279–80 and ending in 1307, there are only seven years in a 27-year period for which record evidence of wrangles between de Geneville and the Dublin administration does not survive.28 Trim was seized in 1293 as the result of a clash between de Geneville and the justiciar and the justices of the Dublin bench; and in 1302 as the culmination of a long-running battle with the treasurer of the Exchequer. It may be that the attack upon Trim by different branches of the Dublin government provides an indication of its determination to wear down the extensive and frustrating franchise of Trim that was its near neighbour. Edward I had written to his justices in Dublin in April 1301 in order to protect Geoffrey’s rights in recognition of his services at the papal court; an attack delivered through the agency of the Exchequer allowed the letter of this mandate (that an assize of novel disseisin not be carried out against de Geneville) to be observed whilst disregarding the spirit in which it had been written.29 However, this may be too Machiavellian a view of Dublin government officials. The Irish council in parliament, after all, overturned the actions of the escheator in seizing the liberty of Wexford in 1302; and evidence from the reign of Edward III shows that it was not even necessary for all members of a single department to work together in order to effect the seizure of a liberty.30 Among the great lay liberties of Ireland, only Thomond and Ulster escaped confiscation during the reign of Edward I. The remoteness of Ulster, and the power of its earl, made it an unlikely target of government attack. Moreover, Edward I supported Earl Richard de Burgh’s claims that William fitz Warin should answer a lawsuit in the earl’s liberty court despite being a tenant-in-chief of the king. The earldom of Ulster had been disturbed during Earl Richard’s minority by a dispute between fitz Warin, the king’s seneschal of the earldom, and Henry de Mandeville, a de Burgh tenant who had hoped to hold this office. An initial lawsuit between fitz Warin and de Mandeville had been heard in the king’s court on account of the earl’s minority, and a later lawsuit was moved from the liberty court due to an appeal by fitz Warin to the king. Despite his general wariness of the earl of Ulster’s power base in Ireland,31 Edward supported the de Mandeville claim and instructed fitz Warin to come back to the royal court only if he did not get justice in the earl’s court.32 The king was not going to 28

29 30

31 32

These years are 1281, 1287, 1293, 1296, 1298 and 1303–4. The king may have been the first to question de Geneville’s rights; in December 1279 Edward requested the Dublin exchequer to make copies of the charters and other instruments pertaining to Geoffrey’s liberty which were enrolled there (CCR, 1272–9, 102). The subsequent history of de Geneville’s defence of his liberty and the king’s support suggests that Edward may have in fact been acting in de Geneville’s interest and possibly in response to a petition from him. Hartland, ‘Vaucouleurs, Ludlow and Trim’, 470–1. An inquiry found that the seizure of the liberty of Anne, late wife of Edward Despenser, in 31 Edward III was carried out by order of the treasurer, but without the consent of the barons of the exchequer (NAI, RC8/27, pp. 289–90, 324–7). The king concluded that the treasurer had been motivated by malice. This argument is put forward in Hartland, ‘English Lords in Ireland’, 342–3. For the dispute between fitz Warin and de Mandeville see Otway-Ruthven, History of Medieval Ireland, 203; Beth Hartland, ‘The Household Knights of Edward I in Ireland’, HR 77 (2004), 164–5;

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challenge the rights of so powerful a tenant-in-chief as the earl of Ulster over such a relatively small issue, especially when he needed his co-operation in bringing troops from Ireland to the king’s Scottish wars.33 The equally remote, but newly created, Thomond was, however, regarded as fair game by the Dublin government. Exchequer officials clearly felt that Thomas de Clare, the lord of Thomond, should pay for his liberty as the O’Brien kings of Thomond previously had (or at least ought to have) done. It is has been argued that the liberty of Thomond ‘never properly established itself ’34 and there was clearly confusion among the ministers of the Dublin exchequer about the terms on which Thomas held his liberty; as a department memorandum put it ‘By what warrant does the latter hold; and if by enfeoffment, does he render the 140 marks or not?’35 Their resolution to this quandary was to charge Thomas for the debts built up by the O’Briens, a charge which was squashed by a directive from the king, no doubt in response to a petition from de Clare. As this short account of the liberties of Ireland in the reign of Edward I demonstrates it is too simplistic a view to argue that all the impetus for the attack on liberties lay either with the king or with his government officials in Dublin. As it is not until the reign of Edward I that record evidence for the lordship of Ireland survives to any great extent, it is difficult to say categorically that the scrutiny of liberties began in Edward’s reign, although it is almost certain that it did. For example, predating the launch of quo warranto in England, Edward ordered his justiciar of Ireland in 1274 ‘to take into the K.’s hand any of those liberties’ which had usurped royal rights and ‘under the veil of those liberties’ inflicted injury on many persons.36 Notice had come to Edward of these usurpations ‘by the complaints of many’ against magnates, citizens, burgesses and others. To point out that the king did not extend quo warranto to Ireland, then, may be to miss the fact that he had already ordered a scrutiny of Irish franchises and that the evidence supporting this simply no longer exists. The liberties of the citizens of Limerick came under scrutiny by the justiciar, Geoffrey de Geneville, probably as a result of this order.37 The justiciarship of John Wogan (1295–1308 and 1309–1312) is more usually associated with a more aggressive attitude towards liberties – although this again may be an illusion of the record evidence which survives in much greater volume from the 1290s onwards. Did Edward instigate Wogan’s attack on ecclesiastical liberties at the outset of his justiciarship? We cannot tell. Neither is it clear just how determined this ‘attack’ was: Nicholas, the bishop of Down, was later said to have surrendered the rights of his church to pleas ‘fearing to be disturbed by

33 34 35 36 37

and T.E. McNeill, Anglo-Norman Ulster: The History and Archaeology of an Irish Barony, 1177– 1400 (Edinburgh, 1980), 62. Cf. Séan Duffy, Ireland in the Middle Ages (London, 1997), 131. Hand, English Law in Ireland, 131. CDI, 1252–84, no. 2329. CDI, 1252–84, no. 1050; CCR, 1272–7, 102. TNA, C 47/10/13/9; CDI, 1252–84, nos. 218–19.

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this [summons to the king’s court]’ and seeking ‘to save trouble and expenses’.38 Exactly why Nicholas chose to surrender rather than defend these rights (worth 4 marks per annum) is a matter for conjecture. The feeling current in England at the beginning of Edward’s reign that many royal rights had been usurped has already been noted. Debating whether an atmosphere of hostility to liberties was created more by the king or by the lawyers and ministers who served him is akin to asking whether it was the chicken or the egg which came first. An aggressive attitude towards liberties was also common in Ireland, and extended to church leaders.39 It could take relatively little, such as the receipt of rents in the case of the liberty of Wexford, for a Dublin minister to feel justified in seizing a franchise into the king’s hands; but why should Dublin ministers act in a manner plus royal que le roi in this regard? We should guard against making the ministers of the Dublin government the anti-heroes of our piece. The escheator of Ireland may have been wrong to seize the liberty of Wexford on the basis of a payment taken by the officers to whom it was due, but he was not wrong to take a stance against Joan de Valence’s claim to the rights and lands of Roger Bigod (above). The only way in which the actions of a franchise holder within his franchise could be controlled was by taking the liberty into the king’s hand;40 it would be harsh to castigate the ministers of the Dublin government for merely enforcing the law as they understood it. Certainly, if the facts were as the justiciar, Robert Ufford, stated then the taking of the liberty of Kildare into the king’s hand in 1278 had been very much in accordance with his understanding of the law, for it was the contention of the king’s Irish council that Agnes’s seneschal had heard a plea of arson, one of the pleas reserved to the crown.41 And in taking the liberties claimed by the citizens of Limerick into the king’s hand, de Geneville had clearly believed his actions justified, advising the king to withdraw a right whereby a man could be quit of homicide committed within the city of Limerick if he purged himself of the deed by forty men as it was encontre dreite e la corune.42 On the other hand Robin Frame has warned us of the danger of viewing the lordship of Ireland from the particular viewpoint of the Dublin government; and we need to bear in mind their ‘in built aggressiveness’ when attempting to assess their actions.43 What motivated these men to act aggressively towards the franchise holders of Ireland? It is possible that they were driven by a belief in 38 39

40 41 42

43

NAI, KB2/4, pp. 562–4. Otway-Ruthven, ‘Anglo-Irish Shire Government’, 8. Geoffrey de Geneville certainly experienced the attempts of the abbot of St Thomas, Dublin, to remove land from his liberty (eadem, History of Medieval Ireland, 182–3; Calendar of the Chancery Warrants, AD 1244–1326 (London, 1927), 12; Placitorum in Domo Capiulari Westmonasteriensi Asservatorum Abbreviatio (London, 1818), 216; CDI, 1285–92, nos. 452, 503, 547, 1075). Otway-Ruthven, History of Medieval Ireland, 185. Documents on the Affairs of Ireland, no. 24. TNA, C 47/10/13/9. Similarly, ‘deceived’ as they were, the justices who challenged de Geneville’s right to try his own actions within his liberty court presumably believed they were acting in accordance with correct procedure (CDI, 1285–92, no. 525). Frame, Political Development of the British Isles, 149.

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the inalienability of the king’s rights (a view expressed by the author of Fleta).44 More likely, however, was frustration at being excluded from the government of large parts of the lordship, especially those areas which bordered upon Co. Dublin; and jealousy of the authority wielded on behalf of the lords of franchises by their seneschals – they were certainly aggravated by the arrogance of such officials at times. Perhaps another ingredient may be added to this otherwise familiar recipe by suggesting that the attitude of the Dublin ministers in general, and those of the exchequer in particular, cannot be divorced from the increasing revenues which Edward I was demanding Ireland provide in the later years of his reign. During Edward’s reign, an average of £1500 was sent from the lordship to the king’s use in England; during the king’s Scottish wars this rose to £1900.45 This pressure exerted by the king to increase the revenues available to him, may well have caused his ministers at Dublin to cast their eyes all the more longingly at the liberties – the pleas and perquisites of the liberty of Carlow alone brought in as much as £352 6s 3½d in the court’s most profitable year of the 1280s.46 Concern with financial expediency would not have been new: in the 1260s the conclusion had been reached that the de Verduns should not be given full regalian rights in West Meath (Kells) because it would be to the king’s loss to the sum of 400 or 500 marks per annum.47 Similarly, in the 1280s, exchequer officials were muttering about Thomas de Clare’s liberty of Thomond and the annual payment they believed he owed for it. Financial motives can never have been far below the surface of the attacks by Dublin ministers on the rich liberty of Trim, and the exchequer certainly played a leading part in what can only be seen as a concerted campaign to wear down this extensive franchise.48 The second time the liberty was seized was at the instance of the Dublin Exchequer and may have been the culmination of a long-running battle between de Geneville and the treasurer of the Exchequer, especially apparent after Estdene took office in 1292. Indeed, the appointment of a new treasurer in 1300 may have been behind the renewed gusto with which the Dublin government launched itself against the major liberties since four of the six remaining great franchises were taken into the king’s hand at some point between 1301 and 1302. The loss of potential revenues which liberties represented to the Dublin government, at a time when Edward was applying increasing pressure on the lordship to yield resources for his wars elsewhere, might have contributed to ministers’ preparedness to take these frustrating franchises into the king’s hand. Relative to the fairly fixed attitude of the Dublin ministers against liberties, the outlook taken by the king was flexible. This is not to suggest that Edward 44 45 46

Prestwich, Edward I, 259. Robin Frame, Colonial Ireland, 1169–1369 (Dublin, 1981), 67. The average income from pleas and perquisites in Carlow during the years for which extant liberty accounts exist is just over £203 (TNA, SC 6/1239/1–9). These accounts cover the years 1281–9 and 1293–4. 47 CDI, 1252–84, no. 810. 48 In Edward III’s reign the Dublin exchequer were instructed to collect the debts owing on their accounts from the seneschals of the liberties (NAI, RC8/23, pp. 642–3).

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was soft on liberties – his outlook did not compromise on the essential points that liberties must be held from the king and must not be abused.49 Remembering this point of principle, we can see it was not incompatible for the king to order his justiciar to take liberties which had exceeded their rights into the king’s hand whilst also ordering that a new liberty should be created in the troublesome O’Brien kingdom of Thomond for Thomas de Clare. De Clare’s liberty, as a new creation, could not have exceeded its rights. Endorsing his magnates’ rights was not just a matter of patronage either, although it was that as well, for liberties had an important job of government to perform themselves. Where the king’s ministers at Dublin saw them as an obstacle to their management, the king appreciated that in areas that had never been under governmental control or which were under tenuous government control, liberty holders could perform important tasks of government and control more effectively than the Dublin government. Ulster and Thomond are cases in point.50 A jury put forward an argument in support of writs being addressed directly to the lord of Trim along similar lines: ‘it would tend to the K.’s profit, because … the K.’s order would be more quickly and better expedited by them than by sheriffs’.51 The annulling of the seal of the liberty of Kildare and its replacement with a seal for the county of Kildare was not part of a systematic Edwardian attack on liberties in Ireland. As in the March of Wales where the right to make private war was squashed as a result of the dispute between the earls of Gloucester and Hereford, the dismantling of the liberty of Kildare was the outcome of the dispute between William de Vescy and John fitz Thomas. These events may, however, have encouraged members of the Dublin government in their natural hostility to liberties. The extent to which Edward was flexible in his dealings with the liberties of Ireland is demonstrated by the way in which he exercised his rights of patronage in favour of the franchise holders. Thomond was the only creation of a liberty by Edward in Ireland, but it was not Edward’s only grant of jurisdictional rights there. In 1258, four years after he had received Ireland as part of his appanage, Edward made a grant of the cantred of Omany in Connacht to Richard de la Rochelle. Among the rights which Edward granted to Richard in Omany were the right for him and his heirs to forever hold the cantred free of all pleas and suits of sheriffs, and all other … bailiffs and ministers, and … the return of our writs and the plea of vetitum namium and all pleas which pertain to the sheriff … So that no sheriff, bailiff or minister of ours shall enter that cantred to make any summons or attachments or intrude in any of those matters which belong to that cantred except for defect of said Richard or his heirs or bailiffs.52

Patronage had had its part to play in the king’s dealings with the franchise

49 50 51 52

Cf. Frame, Political Development of the British Isles, 145–8. For the de Clares in Thomond see Hartland, ‘English Lords in Ireland’. CDI, 1252–84, no. 1666. NLI D.1172; Calendar of Ormond Deeds 1172–1350, ed. Edmund Curtis (Dublin, 1932), no. 123.

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holders of Ireland in the reign of Henry III,53 and in a sense Edward was merely continuing an aspect of his father’s policy. Neither was it the case that Edward refused to make grants of immunities after he came to the throne: Maurice de Rocheford secured the king’s grace for a grant of free warren and a licence to alienate land in mortmain in Ireland in 1303,54 well after the launch of the scrutiny into franchises. The impact of patronage on the rights of franchise holders in Ireland is most clearly apparent in the discrepancy with which Edward treated the petitions of the de Verdun lords of Kells and those of Geoffrey de Geneville, lord of Trim, regarding their respective halves of the once great liberty of Meath. The original grant of the liberty of Meath had included the king’s pleas, but, following a default in the early 1220s, Walter de Lacy had been denied this privilege, being made to act as king’s sheriff in his own lands. This situation changed on the division of the lordship between Walter’s two granddaughters in the late 1240s, but only for one of the co-parceners. The original, full jurisdiction was resurrected for Matilda and her husband, Peter de Geneva, a Savoyard; and, following Peter’s death, for Matilda and Geoffrey de Geneville, also a member of the Savoyard camp. The same treatment was not meted out to Margery and her husband John de Verdun who seem to have held the liberty in their half of Meath on the same terms as Walter de Lacy had after 1224. In the late 1270s Theobald de Verdun lost the liberty, probably on the basis of quo warranto. The king ordered its restoration but also instructed his justiciar to investigate de Verdun’s rights. The upshot was that the liberty remained in the king’s hands, and Theobald’s lands were incorporated into the county of Dublin in 1280 until they were made part of the new county of Meath in 1297.55 The contrast with the experience of Agnes de Vescy, whose liberty of Kildare was also seized in 1278 but speedily restored for a token payment which the king instructed his ministers she was not to be distrained for, is striking.56 The de Verduns clearly felt that the dichotomy in the terms on which the two halves of Meath were held was arbitrary, and John de Verdun had petitioned the lord Edward for restoration of the full rights once enjoyed by Walter de Lacy in

53

For example, in 1255 Henry III commanded John fitz Geoffrey, the justiciar of Ireland, to maintain and defend the liberties and rights of his half-brother, William de Valence, in the county of Wexford (CDI, 1252–84, no. 444). 54 Documents on the Affairs of Ireland, no. 72. 55 For de Geneville’s Savoyard connections see Hartland, ‘Vaucouleurs, Ludlow and Trim’, 458–60; for de Verdun Meath see Mark S. Hagger, The Fortunes of a Norman Family: The De Verduns in England, Ireland and Wales, 1066–1316 (Dublin, 2001), 132–3. This history of the de Verdun share of the liberty of Meath is rewritten in Edward III’s grant of the liberty of Kells to Roger Mortimer and his wife Joan (the granddaughter of Geoffrey and Matilda) dated 25 April 4 Edward III which reports that the de Lacies suffered no dimunition of their jurisdictional rights in Meath and thus both successor liberties continued to enjoy full rights, until Theobald forfeited the liberty in the reign of Edward I. Roger and Joan were allowed to exercise from their castle at Trim all jurisdiction and cognisance over pleas in the former de Verdun lands, as John and Margery de Verdun had allegedly exercised, with permission to have a seal and a deputy (NAI, RC8/15, pp. 586–9). 56 CDI, 1252–84, nos. 1503, 1974, 1977. This instruction must have particularly galled the Dublin ministers as Ufford the justiciar had already informed the king that his Irish council did not believe Agnes’s liberty should be replevied to her for a fine (Documents on the Affairs of Ireland, no. 24).

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c.1266.57 The conclusion of the inquisition which Edward ordered in response to this petition concluded that it would be to Edward’s financial loss to the tune of 400–500 marks per annum to restore it to de Verdun, only highlighted the fact that de Geneville’s tenure of the full regalian rights in his liberty of Trim was a function of the king’s patronage. Edward clearly did favour de Geneville over the de Verduns, but he nevertheless made it clear that replevying the liberty to de Geneville after it had been seized by the Dublin government was an act of patronage; and in calculating how to proceed he seems to have held the useful service rendered to him both by Geoffrey and by his Dublin ministers in his decision making. Thus in 1293 Trim was seized into the king’s hand because Geoffrey upheld the decision of his seneschal to imprison the hereditary chief serjeant of Meath, Nicholas Bacun, who had presumably had a writ sent to him (rather than to Geoffrey or his seneschal) by a sheriff for its execution.58 The Dublin government consistently refused to listen to Geoffrey’s complaints regarding the directness of writs sent to him. They refused to accept Geoffrey’s return to writs that nichil actum est quia contra libertatum59 and instead used this as a pretext to interfere in the liberty. De Geneville appealed to Edward I in 1294 in a lengthy petition asking for the case to be brought coram rege, and was allowed to defend himself in parliament in England.60 Edward persisted in referring to Geoffrey’s actions as a trespass, thus supporting his ministers at Dublin, but chose not to lessen the extent of de Geneville’s jurisdiction and instead restored it intact in recognition of Geoffrey’s services in the army of Wales.61 Edward followed a similar line in 1302 when he managed to restore Geoffrey’s liberty intact without deciding in favour of the claims of either de Geneville or his ministers at Dublin. Again Geoffrey presented a (very lengthy) petition in parliament in England resulting in the king’s decision that the exchequer had followed an erroneous procedure in seizing the liberty for an offence of the seneschal, and the liberty was replevied until Pentecost 1303.62 Edward never admitted that the general policy of the Dublin government was wrong; Trim was replevied through the exercise of patronage and not as the outcome of a process of justice; similarly in 1301 the king ordered Wexford to be replevied because the lady of Wexford had not been warned that the liberty was going to be taken into the king’s hand. An underlying assumption of the papers in this volume is that liberties were important. This is an assumption which it would be difficult to undermine. It is, 57 58

59 60

61 62

Hagger, The De Verduns, 88. See Hand, English Law in Ireland, 125. In 1281 the crown had decided in Geoffrey’s favour that the liberty of Trim lay outside any of the king’s counties; but Geoffrey had to get this verified repeatedly (CDI, 1252–84, nos. 1614, 1666; CCR, 1279–88, 287; CDI, 1285–92, nos. 240–1; CJR, 1305–7, 72–4). For example see Documents on the Affairs of Ireland, no. 51. Hand, English Law in Ireland, 125. This was the Trinity parliament of 1294 (see also CDI, 1293– 1301, no. 125). Sayles in Documents on the Affairs of Ireland, no. 51, misdates a list of petitions brought by Geoffrey to the Michaelmas parliament of 1294; these petitions should be dated 1302. CDI, 1285–92, nos. 240–1. Documents on the Affairs of Ireland, no. 51; CDI, 1302–7, no. 170.

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however, worth asking how important liberties were, both to their lords and to the tenants who lived within their jurisdiction. It is with reference to this particular question that the history of liberties within the thirteenth-century lordship of Ireland may offer a corrective to the typical view of liberties and their associated loyalties held by historians of medieval England, a view also challenged by Matt Holford’s paper on the liberty of North Durham, above. Lords of liberties within Ireland were clearly jealous of their privileges; and lords who lacked these privileges were jealous of them too. Franchise holders valued their jurisdictional rights, the prestige associated with holding a liberty63 and the opportunity to charge as represented by the pleas and perquisites sections of liberty accounts.64 In a liberty they controlled the appointment of officials; and this control added to the patronage they were able to dispense. Their possession of jurisdictional rights also added to their patronage by giving them the scope to grant subsets of these rights to their own tenants.65 Nevertheless it is worth asking just how important the possession of franchises were to lords in relation to other attributes of their lordship (even if this question cannot be readily answered). The respective decisions of Geoffrey de Geneville and Theobald de Verdun, the husbands of Walter de Lacy’s granddaughters, to ultimately concentrate their careers on their lordships of Trim in Ireland and Ewyas Lacy in Herefordshire respectively might be instructive.66 Franchisal rights were clearly of importance to Theobald, who famously chased away with 600 Welshmen the sheriff of Hereford, sent to collect the records of the court of Ewyas Lacy in 1290. But franchisal rights were also important to de Geneville, whose purpose in granting a charter of franchises to his magnates at Meath (and presumably also in Vaucouleurs, his lands in Champagne) was at least as much concerned with protecting his own rights as in making concessions to his major free tenants. So why did de Geneville choose to concentrate on Ireland, when his franchisal rights in Trim must have been less than those he held in the Welsh March, even after the intrusion of the Hopton Commission? Other factors that were probably of importance include the greater physical (and presumably monetary) extent of Geoffrey’s lands in Ireland, the ‘live’ nature of the frontier which Trim shared with Gaelic Ireland, the role which de Geneville had to play in Anglo-Irish politics, and the support which he received from the king in defence of his liberties. From the other side of the coin, it was not only suffering the humiliation of his lands being incorporated into the county of Dublin, and ultimately the newly created county of Meath that caused de Verdun to leave his 63

The grant of the liberty of Tipperary to James Butler in 1328 was made ‘to enable him to maintain his rank’ (CPR, 1327–30, 336). The grant, as recorded in the Irish records, was made pro statu et honore Comitis melius manutenend’ (NAI, RC8/24, pp. 139–40). 64 Cecilia de Beauchamp and her relatives were determined to try and gain her share of what had once been the jurisdictional perquisites of the liberty of Kildare (TNA, SC 8/180/8983; SC 8/32/1571; SC 8/32/1571). 65 See, for example, Calendar of Ormond Deeds, vol. ii, 1350–1413 A.D., ed. Edmund Curtis (Dublin, 1934), nos. 92, 441 [original deeds are NLI D.1073–4, 1518]; NAI, RC8/29, pp. 766–74; Calendar of the Gormanston Register c.1175–1397, ed. James Mills (Dublin, 1916), 5–6. 66 For the following see Hartland, ‘Vaucouleurs, Ludlow and Trim’, 469–76.

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brothers in charge of his Irish estates, but also the fact that he held the upper hand vis-à-vis de Geneville in Weobley. It is too much to create a rule from one case-study, but the respective career paths of Geoffrey de Geneville and the Theobald de Verdun do suggest the possibility that historians have been too ready to correlate power and control with the possession of liberties. Thus, although Richard de Burgh sought early in the reign of Edward II to get the liberties he held in Ulster extended to his other Irish lands, as well as seeking a grant of the four royal pleas,67 undue emphasis should not be placed on the fact that his petition was unsuccessful since his power as earl of Ulster was as much political and geographical as legal.68 Straying into the beginning of Edward III’s reign, among the petitions addressed to the king by John de Bermingham requesting various franchisal rights within Louth is one showing that in John’s mind an extension of his territorial power could compensate for a failure to secure an expansion of his jurisdictional rights; if the king would not grant John the right to hold his liberty in fee, he requested a grant of the manor of Moylagh in its stead.69 This is a question which deserves greater consideration from historians of both medieval Ireland and medieval England alike. Another topic which deserves greater consideration, especially by Irish historians who lag behind their English counterparts in this regard, is the question of the positive correlation which historians have seen to exist between holding land of a liberty jurisdiction and the shaping of tenants’ identities, as well as the focusing of their loyalties. Questions of identity, loyalty and community were first raised by medieval historians in the context of the county some thirty years ago.70 More recently, historians of medieval England have begun to ask these same questions of those sectors of the population who lived within the jurisdiction of the great liberties. The assumption has been that loyalties and allegiances of such free tenants would have been dominated by the accident of their landholding. Holding land of a liberty has been seen as synonymous with having a career and life focused around the lord of that liberty. This cannot be the whole picture. Even within a liberty, other factors would have influenced the shaping of the loyalties of the tenantry. Indeed, the actual physical presence of the lord was arguably much more important in this respect than being subject to a seignorial, rather than a royal, court. Making a foray into the reign of Edward III once more, we encounter the classic example of how holding land of a liberty did not necessarily equate to loyalty to its lord; for in 1329 John de Bermingham, the earl of Louth, was murdered by his own tenants at Branagstown. This may be a misleading example since John had been imposed on the tenants of Louth

67

BL Cotton MS Titus B XI, fo. 2 (printed in Documents on the Affairs of Ireland, no. 86); TNA, SC 8/175/8730. 68 The earl’s rights were renewed in parliament after the Bruce invasion of Ireland. 69 TNA, SC 8/59/2917. John’s other petitions include TNA, SC 8/81/4049 and TNA, SC 8/90/4494A. 70 These questions have begun to be addressed in the Irish context: see Brendan Smith, ‘A County Community in Early Fourteenth-Century Ireland: The Case of Louth’, EHR 108 (1993), 561–88.

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from outside (his landed interests lying in Co. Kildare),71 but it at least alerts us to the need to question the received wisdom concerning liberties, loyalties and identities. Another brief tour of the great lay liberties of Ireland during the reign of Edward I highlights how much work needs to be done in the Irish context. The records relating to the liberty of Thomond are very thin. Nevertheless records concerning de Clare lordship in the south-west more widely do provide the outlines of a sketch which shows de Clare power provoking reaction. This reaction was not always loyalty: it was ‘for fear of Sir Thomas’ that John, brother of Adam Guly, left the tenements he had improperly entered.72 But the de Clares could also inspire loyalty as consideration of the de Lees family shows. Maurice de Lees, a tenant of Thomas de Clare in the manor of Moyavenach,73 was a member of Thomas’s household in 1281, an allegiance he continued in until Thomas’s death in 1287.74 The family adherence to the de Clares was probably rekindled by the arrival of Richard de Clare in Ireland in 1309. In 1318 Thomas son of William de Lees was excused service on juries and inquisitions in Ireland at Richard’s instance;75 and this same Thomas was listed among the four followers of Richard de Clare killed alongside him at the battle of Dysert O’Dea in 1318.76 That the association of the de Lees family with the de Clares seems to have lapsed during the minority, and then non-resident lordship, of Gilbert de Clare may speak volumes for the importance of lordly residence as a factor in determining tenants’ loyalties. From south-west Ireland our surveys jumps to the north-east. Following the majority of Richard de Burgh in c.1276, Ulster benefitted from the rule of a strong, resident lord during the reign of Edward I. Loyalty within the liberty of Ulster seems to have been more or less synonymous with landholding; from the earl’s perspective anyone who held land in his sphere of influence from anyone else was not only resented but also regarded as suspect. In Edward’s reign this was made manifest in the dispute between William fitz Warin, the king’s seneschal of Ulster who held land in Connacht of the king, and Henry de Mandeville, a de Burgh tenant whose family had traditionally held the office of seneschal and who had aspired to hold the office during the minority of the earl. By appealing to the king, fitz Warin had a lawsuit concerning the murder of de Mandeville moved from the liberty court to the king’s court because although he held land in the de Burgh lordship of Connacht, he had inherited it from his grandfather, William de Serland, a recipient of King John’s favour. The de Mandevilles claimed that they did not have to plead outside the liberty 71 72 73 74

Ibid., 580–2. CJR, 1305–7, 80–1. CIPM, ii, no. 696. CDI, 1293–1301, no. 819. Maurice and Geoffrey de Lees witnessed two charters of Thomas de Clare granting rights in the church of Cork to the bishop of Limerick (The Black Book of Limerick, ed. J. Mac Caffrey (Dublin, 1907), 31, 102. 75 NAI, KB2/10, p. 33; NAI, RC7/12, p. 70. 76 The Annals of Ireland by Friar John Clyn, of the Convent of Friars Minors, Kilkenny; and Thady Dowling, Chancellor of Leighlin. Together with the Annals of Ross, ed. Rev. Richard Butler (Dublin, 1849), 13.

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as they held their land from the earl; and it seems clear that the earl favoured the de Mandevilles because they held their land from him, whilst fitz Warin was regarded as an interloper because he held his land from the king. The earl of Ulster demanded, and in at least some cases, commanded loyalty from the tenants of his liberty. From Ulster it is a natural progression to Meath. Since Geoffrey de Geneville held full jurisdiction in his liberty of Trim, the records which survive concerning the liberty are few and mostly all concern the lord’s rights. Geoffrey’s lordship in Trim was both rewarding and demanding: his magnates held considerable franchises from him, but Geoffrey’s sheriff was allowed to check that these franchises had not been abused on a twice yearly basis; his magnates were allowed to keep half the plunder taken in the marches when Geoffrey was not present, but de Geneville enforced the de Lacy right to take prises not only of corn, but of valuable animals too.77 Nevertheless Trim, like the successor liberties of Leinster, awaits detailed study before comments about the loyalties or identities of the liberty’s free tenants can be made with any confidence. It is in Leinster that our survey ends and the needed new research should arguably begin. Prior to its division in 1247, Leinster had been ruled by successive members of the Marshal family who, despite holding important lands elsewhere, were resident in Ireland on a regular basis. Ruling an undivided liberty, with almost all the sub-tenants of Leinster holding their lands of the Marshals, the general assumption is that the political geography of Leinster before 1247 was characterised by unity. Even brief consideration of the rising of Richard Marshal of 1233 demonstrates the oversimplification of this picture; Henry de Erlegh, a Marshal tenant in Kilkenny, for example, did not stand alongside Richard for the duration of his rising, presumably because he did not wish to lose his lands in Berkshire and Somerset which he held of the king.78 After the partition of Leinster the assumption is that unity gave way to fragmentation. This, again, is too simple a picture of the general state of affairs in post-Marshal Leinster, but it may be a truer sketch of what happened to the loyalties of Leinster’s free tenants. If so it follows that holding land of a liberty cannot have been the key element in shaping the lives of the free tenants of Leinster, for they continued to hold land of a liberty after the failure of the Marshals in the male line. The marked changes which did occur were that their often resident lord was replaced by a number of typically, or exclusively, non-resident lords, and that, for some of the former Marshal tenants, they now owed allegiance to more than one absent master. William Cadel was one such man; and his career demonstrates that life in late thirteenth-century Leinster was far from a walk in the park. Cadel held land from the lords of both Carlow and Kildare, and he served as seneschal of both

77 78

See Hartland, ‘Vaucouleurs, Ludlow and Trim’, 474–5. R.F. Walker, ‘Richard Marshal and the Rising of 1233–4’ (MA thesis, University of Wales, 1950), 180, 379.

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liberties, as well as that of Kilkenny.79 Although his employment as the leader of three liberty administrations suggests the lure of the successor liberties, in fragmented Leinster this was not a case of loyalty to one particular lord. Moreover, Cadel was a key player in a number of other political and social networks in Ireland. It was as a knight of the king’s household in Ireland in the 1270s that Cadel first appears in the record evidence.80 But his closest association was with John fitz Thomas, the baron of Offaly and William de Vescy’s rival for power in Kildare.81 This made sense since Cadel, like all Leinster free tenants, must have been accustomed to living in the long-term absence of his direct feudal superiors, and organised his day-to-day allegiances on the basis of proximity to resident regional lords. When William de Vescy, lord of Kildare, suddenly appeared on the Irish scene in 1290 and stayed put for four years, serious strain must have been put on the tangle of allegiances and loyalties which men like Cadel were caught up in. Establishing and examining the skeins of such social and political networks of the thirteenth-century free tenants of Leinster would be a fundamental next step in the study of liberties in Ireland.

79

See Beth Hartland, ‘ “To Serve Well and Faithfully”: The Agents of English Aristocratic Rule in Leinster, c.1270–c.1315’, Medieval Prosopography 24 (2003), 204–5, Appendix 1. 80 Hartland, ‘Household Knights of Edward I in Ireland’, 173. It was in his capacity as a knight of the king’s household in Ireland in the 1270s that William was employed to protect the O’Dempseys from the attacks of more hostile native Irish – an assignment that led to a permanent association with the O’Dempseys, William presumably arranging the marriage of his daughter Isabella to Dermot O’Dempsey (cf. CJR, 1295–1303, 368). 81 Hartland, ‘English Lords in Ireland’.

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Index

abduction, see crime Abernethy, Orm of  183 Abingdon Abbey  112 Akeld  90 Albany, duke of, see Stewart, Robert Aldrewych, Nicholas  99, 109 Alexander II, king of Scots (1214–49)  35, 42, 179, 190, 191 Alexander III, king of Scots (1249–1286) 190 Alexander, son of Roger  64 Allerdale  14, 34 Allerdean  79 Alloa, regality of  197 Alston Moor  30 Ancroft  80, 89 Angus, earl of, see Douglas, George; Umfraville, Gilbert Angus, earldom of  169, 192–3 Annandale  9–13, 16, 30, 171, 185, 189, 191, 193 Anne of Bohemia, queen of Richard II  101 approver  67 arbitration  40–1, 44–5, 47–8, 51, 53, 55 Arbroath Abbey  26, 167, 171, 178 Archenfield  152 Armstrong, David  71 Armstrong, Long Sym  125 Arran  9 Arundel, earl of, see FitzAlan Askerton  128, 129 Assise Regis David  158 Atholl, earldom and regality of  169, 193 Athy, William de  204 Ault, W., historian  5 Avenel, Robert  185 Aykescogh, John  104 Ayton, John de  46 Bacun, Nicholas  211 Badenoch  9 Balliol, Edward, titular king of Scots  25, 159 Bamburgh  75, 85

Barnard Castle  89, 118 Barraclough, G., historian  5 Barrow, G.W.S., historian  178 Barton, prior of Tynemouth  65 Battle Abbey  14, 24, 29 Bausley  151–2 Beauchamp, Guy, earl of Warwick  188 Beauchamp, Richard, earl of Warwick  101 Beachamp, Thomas, earl of Warwick  111 Beal, Gilbert  78 Beaumont, Henry  82–3, 88, 90 Beaumont, Lewis de, bishop of Durham  30, 82, 88, 93 Beckfeld, Denise of  69 Beckingsale, B., historian  99 Bedford, duke of, see John Bedlington  57, 111 Bedlingtonshire  77 Bek, Anthony, bishop of Durham  18, 20, 33, 85, 87, 92, 117 Belasys, John  57 Bell, John  69 Bellingham  130 Benet, Thomas  66 Bermingham, John de, earl of Louth  33, 213 Berrington  88–9 Bertram, Robert  118 Berwick  51, 54 Berwickshire  78 Beverley, liberty of  25, 34 Bewcastle  129, 139, 140 Bicton  143 Bigod, Roger, earl of Norfolk  203, 207 Billymire  54 Birtley  58, 70 Blackburnshire  114 Blagdon, Robert of  71 Blenkinsopp  66 Blundeville, Ralph, earl of Chester  34 Bolingbroke, Henry, see Henry IV Bolton castle  106 Bonde, Roger  76 Bosl, K., historian  15

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INDEX

Brabazon, Roger  113 Braose, William  34 Brecon, liberty of  12, 26, 32 Brinkburn Priory  65 Bristol  21 Brittany, dukes of, see Montfort Brittany, John of, earl of Richmond  117 Brown, K., historian  44 Brus, Robert I de  185, 189 Brus, Robert II de  185, 187 Buchan, earldom of  192 Buckton  88 Burgh, Richard de, earl of Ulster  205, 213–5 Bury St Edmunds, liberty of  20, 24, 30, 33, 95, 111 Bury, Richard de, bishop of Durham  87–9, 92–3 Bute  9 Butler, earls of Ormond  31, 33 Buxhull, Alan de  86 Bywell  66 Cadel, William —215–6 Caithness, earldom of  171 Calfhird, John  59 Calverd, William  69 Cam, H.M., historian  5, 20, 99, 111, 141 Cambo  67 Cambois  75 Canonbie, priory  122 Canterbury, archbishop of, see Pecham  152 Carlisle  46, 125 Carlisle, bishops of  43, 114, 118; see also Kite Carlow  15, 23, 202–3, 208, 215 Carnaby, Reginald  122, 130–4 Carpenter, D.A., historian  98 Carrick  34, 49, 193 Carrick, earl of, see Stewart  49 Carrick, earldom of  169, 184, 192, 198 Caryhalghe, Nicholas  71 Castell, John  72 castleguard  103, 107 Caus, castle  144, 147, 149 Caus, lordship of  141–54 Charles V, king of France  107 Charleton, Thomas  139 Charleton, William  139 Charlton  129 Charlton, Cuthbert  138 Charlton, Edward  126, 129–31 Charlton, Gerard—132 Charlton, Hector  126 Charlton, John  127, 130

Charlton, Thomas  127 Charlton, William  127–9 chaudemelle  159, 181, 192 Cheshire  17, 29–32 Chester  19, 22 Chester, earl of, see Blundeville; Meschin Chester, earldom and palatinate of  13, 25 Cheswick, Alexander  84, 9–1, 93 Chillingham  75 Chipchase  130 Chirbury hundred  144–5, 147–8, 153 Clare, Richard de  214 Clare, Thomas de, lord of Thomond  206, 209, 214 Clerke, Christopher  70 Clervaux, John  104 Clervaux, Thomas  104 Cleseby, Adam de  83 Clifford, Robert, of Ellingham  82 Clifford, Robert, of Murton  87, 93, 95 Clitheroe, Robert of  118 Clun  145 Clun, lordship of  141, 143–6, 152 Cogan, John de  201–2 coin, English, recoined  70 Coleville, Robert  87 commissions of array  95, 113–4 Conyers, John  105–6 Copeland  12, 14, 34 Corbet, family  147, 153 Corbet, Peter  145 Corbet, Robert  144, 148, 150 Corbet, Thomas  144, 146–8, 150–1 Corbridge  61 Corbridge, William of  62 Cornhill  78 Cornwall, earl of, see Gaveston coroners  12, 58–9, 61, 65, 67, 79, 91, 145 Coss, P., historian  98 Council of the North  134–5 Coupar Angus Abbey  180 Coupland  90 Cowal  9 Coxlay, Robert  63 Crawford, earl of, see Lindsay Crawford, earldom and regality of  193, 198 Cressingham, Hugh  113 Crouch, D., historian  98 Crime abduction  69, 132 forgery  70 murder  45, 63–4, 69, 130–1, 133–4, 157, 179, 185, 213–14 suicide  61

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INDEX



theft  64, 156–8, 168, 175, 179, 191 from churches  65, 74 of beans and peas—64 of cattle, sheep and horses  43, 46, 57, 60, 65–9, 72–4, 122, 137 of cloth  65 of geese  68 of harpstrings  74 of hens  65 treason  24, 69, 71–2 Cumberland  14, 46 Cunningham  9, 13, 23, 169, 192, 198 Custance, wife of Alexander son of Roger  64 Cuthbert, St  20, 33, 91, 97 cuthill courts  178–9

Dacre, Hugh  52 Dacre, Thomas  122–9, 138–9 Dalton, P., historian  100, 103 Darlington  102 Darrell, John  107 Daudry, Roger  79 David I, king of Scots (1124–53)  10, 176, 184–5, 187–9 David II, king of Scots (1329–71)  12, 168, 171, 173–4, 196, 197 David, earl of Huntingdon  26, 172, 185 Davies, R.R., historian  5, 7–10, 96, 141 Deer, monastery  177 Delaval, John  138 Denbigh  33 Denholm-Young, N., historian  5 desertion  113 Desmond, earls of  21, 31 Despenser, Hugh the Younger  35, 88 Devon, earl of  33 Dickinson, W.C., historian  155 Dishforth  102 Dodd, Henry  129 dogs  61 Douglas, Archibald  44, 174, 181 Douglas, earl of  50, 52 Douglas, earldom and regality of  193, 198 Douglas, family—27, 43, 169 Douglas, George, earl of Angus  197 Douglas, James, of Dalkeith  168, 171, 197 Douglas, William, earl of  49, 54, 196 Doune, Adam  70 Down, Nicholas bishop of  206 Droxford, John  113 Du Boulay, R., historian  5 Dublin, county  202 Dublin, sheriff of  202, 204 Duddo  78

219

Dudley, John, viscount Lisle  135, 137 Dumfries  12, 114 Dunbar  31 Dunbar, earldom of  24, 171 Duncan, earl of Lennox  196 Dunfermline Abbey  182 Durham  13, 79, 84 Durham, Cathedral Priory  51, 79–80, 91–2 Durham, bishop of  14, see also Beaumont, Bek, Bury, Fox, Hatfield, Langley, Kellawe, Ruthall Durham, bishopric and palatinate of  17, 19–21, 29–31, 33–4, 37, 73, 77, 112, 116–9 Dyffryn Clwyd  28 Dysert O’Dea, battle of  214 Edlingham  90 Edmund, St, 24 Edward I, king of England (1272–1307)  13, 15, 17–19, 21, 24–5, 35, 39, 113, 117, 200–2, 205–6, 208 Edward II, king of England (1307–27)  34, 47, 81–3, 85, 203 Edward III, king of England (1327–77)  19, 24, 52, 54–5, 83, 100–1 Edwards, Sir J.G., historian  141 Ellercar, William  137 Ellis, S., historian  99 Ely, Isle of  34 Ely, liberty of  12, 20, 30, 111 Erlegh, Henry de  215 Erskine, Thomas  197 Essex, earl of  10 Etheldreda, St  111 Ethelred the Unready, king of England (978–1016)  24 Eure, William  122, 125, 127 Ewyas Lacy  35, 212 Faslane, Walter of  196 Felkington  79 Fenwick, John  116 Fenwick, Ralph  27, 125 Fenwick, Robert  116 Fenwick, Roger  122, 130 Ferrers, Henry  45 feud  41–3, 53–5, 65, 76, 179, 181, 183 Fife, earls of  182, see also Stewart, Robert fine, see punishment Fishburn, John  69 fitz Marmaduke, John  80, 87 fitz Thomas, John, lord of Offaly  203, 209, 216

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220

INDEX

fitz Warin, William  205, 214–5 Fitzalan, family  146–7, 150 Fitzalan, John I  143 Fitzalan, John II  146 Fitzalan, John III  144 Fitzalan, Richard, earl of Arundel  144, 146 Fitzalan, William II  143, 149, 153 FitzHugh, family  100, 104 FitzHugh, Henry  106 fitzMarmaduke, John  112, 117 fitzRalph, John  117 fitzThomas, John  33 Fitzwarin, Fulk III  149, 151 Fitzwarin, Fulk IV  151 Fleming, Thomas, earl of Wigtown  173 Ford  90 Forfar, sheriffdom of  188 forgery, see crime Fox, Richard, bishop of Durham  74–5 Frame, R.F., historian  5, 7, 207 Frankeleyn, William  123 frankpledge  59, 61 Fraser, C., historian  5 Frithebank, John  107 Fulthorp, Roger de  50 Galloway  13–14, 23, 27, 31, 35, 164, 174, 192 Galloway, Alan of  13, 35 Galloway, lordship of  171 gallows, see punishment 57–8, 71, 157–9, 180–1, 183, 190 Garioch  23, 172, 185, 187, 192–3 Gaunt, John of, duke of Lancaster  26, 49, 52, 100–1, 106, 108–9, 174 Gaveston, Piers, earl of Cornwall  81 Geneva, Peter de  210 Geneville, Geoffrey de  201, 204, 206–8, 210–15 Geoffrey of Monmouth  56 Geronel, William  63 Gesta Stephani  10 Gille-Brigte, earl of Strathearn  180, 190 Gilling West and East  100 Gilsland  34, 126–7, 129, 138, 139 Glamorgan  13, 29, 32, 35 Glanton, John son of John of  76 Glasgow, bishopric of  12, 179 Glastonbury  24 Gloucester, earl of  10 Gloucester, earl of, see Robert Gloucester, statute of  202 Goch, Iolo  33 golf  159

Gorddwr  147, 151, 153 Goswick  89 Goswick, Patrick  78, 84 Goswick, Walter  87 Gower  34 Grame, John, 71 Graper, Peter, 64 Graper, Thomas, 64 Gray, family, of Heaton  78, 86, 88, 93 Gray, Robert  84, 90 Gray, Roger  132 Gray, Thomas  39, 51, 83–4, 87, 90–1 Gray, Walter, archbishop of York  58 Great Smeaton  102 Grey, Lawrence  70 Grey, Lionel  124 Grindon  78 Grosmont, Henry of, earl and duke of Lancaster  21 Gunnerton  60, 71, 72 Gwenwynwyn, Gruffudd ap  148, 151 Haddenstank  48–9 Haggerston, family  79 Haggerston, Robert  84–5, 87, 89–90, 92 Haliwerfolk  91–2, 94. 116, 118 Hall, Alexander  138 Hall, J, political scientist  8 Halle, Thomas  66 Hallikeld  100 Hallyng, Richard  62 Halton  75, 133, 134 Haltwhistle  57, 72 Hand, G., historian  203 Hang West and East  100 Hanging, see punishment Harbottle  58, 122, 125, 132 Hardyng, John  56–7, 65 Harriss, G.L.   22, 98 Hart  118 Hartness  118 Hastings, Thomas  45 Hatfield, Thomas, bishop of Durham  49, 84, 93, 118 Havering  19 hawk  104 Heaton, William  78 Hedwin, William  59, 67 Henry I, king of England (1100–1135)  73 Henry II, king of England (1154–89)  11, 17, 42, 143 Henry III, king of England (1216–72)  10, 144, 148–9

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INDEX

Henry IV, king of England (1399–1413)  39, 99, 101, 108–9 Henry V, king of England (1413–22)  25, 108, 110 Henry VI (142–71), king of England  56 Henry VII, king of England (1485–1509) 101, 120 Henry VIII, king of England (1509–47)  128, 133, 146 hermit  107 Heron family  65, 76 Heron, George  135 Heron, John  76, 122, 130–4 Heron, ‘Little’ John  130–5, 137–8 Heron, Roger  131, 137 Heron, William  49, 59, 68, 86, 95, 116, 118, 123, 132 Herries, John  197 Herrington, Thomas  80 Heworth, John de  117 Hexham  58, 111, 127, 128 Hexham Priory  72, 130, 133 Hexham, liberty of  73, 114–16, 118, 138 Hexhamshire, 30–1, 33, 57, 77, 128 Hicks, M., historian —98 Hodle, Robert de  73 Hoggeson, William  65 Holderness  115 Hollingside, Adam de  117 Holt, J.C., historian  35–6 Holy Island  81, 92, 94 homicide  63, 68 Horncliff of Thornton, Robert  84 Horsley, John  124 Hortwarton, John of  71 Howard, Thomas, duke of Norfolk  124, 130–1, 133, 137, 140 Hull  52 Hundred Rolls  143 Hunter, John  71 Huntingdon, earl of, see David Hurnard, N.D., historian  5 Ikenberry, J., political scientist  8 Ilderton, Thomas of  64 Innes, C., historian  160, 166 Irishman, Jack the  118 Isabella of France, queen of Edward II  82 James I, king of Scots (1406–37)  159 James III, king of Scots (1460–88)  74 James IV, king of Scots (1488–1513)  160 James, M.E., historian  99 Jedburgh  69

221

John of Beverley, St.  25 John, duke of Bedford—101 John, king of England (1199–1216)  11, 148–9 Joinville, Jean de  201 justiciar ayres, 156–7 Kellawe, Richard, bishop of Durham  8–2, 86–7, 93 Kells  202–3, 208, 210 Kelly  166 Kelso  50 Kelso Abbey  25 Kepier hospital  79 Kerry  13, 21 Kildare  12, 15, 21, 33, 200, 202–3, 207, 209–10, 212, 214–16 Kildare  18 Kilkenny  15, 23, 202–4, 214–16 Kilkenny, statutes of  27 kinbut  38 King, A., historian  112 Kirk Yetholm  39–40, 51 Kirkham, Walter, bishop of Durham  78 Kirkmichael  197 Kite, John, bishop of Carlisle  120 Knaresborough  101, 115–16 Knockin  149 Kyle  169, 198 Kyloe  89 Lacy, Henry de, earl of Lincoln  114 Lacy, Walter de  210 Ladbroke (Warws.)  45 Lanark, sheriffdom of  188 Lanarkshire  165–6 Lancaster, earl and duke of, see Grosmont Lancaster, duke of, see Gaunt Lancaster, John of  46 Lancaster, palatinate of  21, 26 Langley, Thomas, bishop of Durham  57, 93 Lauderdale  13, 23, 27, 169, 187, 192 Laws of the Brets and the Scots  181 Laws of Malcolm MacKenneth   174 Ledale, Thomas of  71–2 Leeming Bar  102 Leinster  23, 215–6 Lennox  32 Lennox, earldom of, 169; see also Duncan, Malcolm Lennox, earls of  24 Lennox, liberty and regality of  193 Liddesdale  9, 27, 169 Limerick  206–7

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INDEX

Lincoln, earl of, see Lacy Lindisfarne priory  92 Lindsay, David, earl of Crawford  197 Lindsay, James  197 Lisle, Humphrey  136–7 Lisle, John de, 117 Lisle, Viscount. see Dudley Lisle, William  136–7, 139 Little Markham  44 Livre des Domaines  99, 102–3, 107–8 Llywelyn ap Iorwerth  148–9 Lochmaben  48 Logie, John  196–7 Loksmyth, Robert  65 Longframlington  72 Lordship of the Isles  172 Louth  21, 213 Louth, earl of, see Bermingham Lucy, Thomas de  52 Luda, Robert de  61 MacDonald lords of the Isles  16 MacDuff of Fife  181 Magna Carta  34 Malcolm III, king of Scots (1058–93)   181 Malcolm IV, king of Scots (1153–65)  176–7, 185, 189 Malcolm, earl of Lennox  179 Malory, Peter  113 Man, Isle of  11, 16, 173, 193 manbote  38 Mandeville, Henry de  205, 214 Mann, M., sociologist  8 Manners, family  65, 76, 86 Manners, Robert  88, 90 Mar  193 March, earldom of  171 Maredudd, Morgan ap  33 Marmion family  100, 105 Marmion fee  104 Marmion, Elizabeth  104 Marshal, Richard, earl of Pembroke  215 Mary, d. of Edward III  101 Mason, Alexander  70 Mason, Walter  117 Maughan, John  76 McFarlane, K.B., historian  98, 200 McIntyre, P., historian  155 Meath  11, 18, 23, 202, 208, 210–12, 215 Medcalfe, William  74 Melrose Abbey  25, 34, 168–9 Menteith, earldom of  192–3 Meryng, Alexander  44 Meschin, Ranulf, earl of Chester  10–11, 189

Middleham  106, 109 Middleton, Gilbert  85 military service  33, 84–5, 111–19 Miller, E., historian  5, 11 Mitford  69, 75 Montacute, William  15 Montfort, John III, de, duke of Brittany, earl of Richmond  100–1 Montfort, John IV, de, duke of Brittany, earl of Richmond  99, 107 Montgomery  147 Montgomery, Roger of, earl of Shrewsbury 141 Monthermer, Ralph de  204 Moray, earl of, see Randolph Moray, earldom and regality of  12, 16, 31, 169, 171, 193, 198 mormaer  11–12, 176–83 Morpeth  59, 62, 76, 126, 128 Mortimer, Roger  33 Morton, John  122 Morville, Hugh de  185 Mowbray, John, 34, 118 Moylagh  213 Multon, John  104 murder, see crime Murton  78 Muschamp, barony of  79 Musgrave, Jack  140 Musgrave, Thomas  52 mutiny  117 Neville, family  43 Neville, John  52, 53 Neville, Ralph  118 Neville, Ralph, earl of Westmorland  101–2, 105–6, 109 Neville, Richard  105 Neville, Richard, earl of Warwick  108 Neville’s Cross, battle of (1346)  108 Newcastle upon Tyne  52, 58–62, 64–5, 68–9, 74–5, 77, 135–6 Newminster Abbey  67, 69, 124 Nicholson, John  71 Norfolk, duke of, see Howard Norham  57, 118 Norham castle  81–4, 87, 95 Norhamshire  77, 79–81, 84, 89, 92–4, 97, 111, 117 North Kyle  9 Northallerton  102 Offa, king of Mercia (757–796)  24 Ogle, Robert  75, 122, 132

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INDEX

Omany  209 Orde  78 Orde, Peter  84, 90 Orde, Robert  93 Ordinances (1311)  85 Ormond, earls of, see Butler Oswestry, lordship and liberty of  32, 141, 143–7, 149, 152 Ottobuono, papal legate  50 Otway-Ruthven, J., historian  200 Page, W., historian  60 Paisley Abbey  168–9 pardons  62–3 parishes, in Scotland  160–6 parliament, Dublin  152 parliament, petitions  37 Paunton, Hugh  87 paupers  67 Pecham, John, archbishop of Canterbury  152 peine forte et dure, see punishment Pembroke, liberty of  19, 23, 29 Penrith  69 Percy, family  43, 56, 129 Percy, Henry II  54, 90, 118 Percy, Henry III  54 Percy, Henry, earl of Northumberland  49–54 Percy, Thomas  132 Peterborough  20 Philippa of Hainault, queen of Edward III 100 Pichard, Roger  87 Pierpont, Henry  45 Pilgrimage of Grace  130–1, 138 pleas of the crown  10, 12, 58, 111, 157–8, 167–8, 171, 182–3, 187, 192, 201–2 Pontefract  100, 114 Pontesbury  144, 151 Pott, Hobb  137 Pott, Thomas  125 poverty  67, 90, 121 Practicks  44 Prendergast, William  86 Puiset, Hugh de, bishop of Durham  15 punishment, beheading  181 fine  35, 48, 52, 204 gallows  57–8, 71, 157–9, 180–1, 183, 190 hanging  58, 60–3, 65, 67, 69–71, 76, 148 peine forte et dure  70 Purslow hundred  143, 145–6, 152 Quo Warranto  144–5, 153, 191, 200–2, 206

223

Quoniam Attachiamenta  156–60, 167, 173 Radcliffe, Cuthbert  124 Ralph Neville, earl of Westmorland  109 Ramsey, liberty of  20, 30 Randolph, Thomas, earl of Moray  16, 167, 173, 193 ransoms  71–2, 126, 133 Ranulf, earl of Chester  10 Ratcliffe, Edward  122 Ravensworth castle  106 Raw, Roger  65 Ray, Anthony  65 Redesdale  10, 14, 57–8, 69, 73–4, 76–7, 92, 111, 120–40 Regiam Majestatem  43, 44, 158, 167, 191 Registrum Honoris de Richmond  100, 102–5, 108–10 Renfrew  9, 169, 187, 189–91, 198 Richard I, king of England (1189–99)  148 Richard II, king of England (1377–99)  21, 34, 50, 54, 101 Richard III, king of England (1483–5)  140 Richard, duke of York  45 Richard, earl of Salisbury  101 Richmond, liberty of  98–110, 115–16 Richmond castle  100, 103–4, 106–7 Richmond, earl of, see Brittany; Montfort, Tudor Ridell, William  81–2, 84, 87, 89–90 Ridley, Nicholas  139 Robert duke of Albany  193 Robert I, king of Scots (1306–29)  12, 16, 43, 47, 90, 167, 171, 173, 193 Robert II, king of Scots (1371–90)  55, 168, 174, 193 Robert III, king of Scots (1390–1406)  196–7 Robert son of Adam Collan  67 Robert, earl of Gloucester  10 Robson, John  132 Rocheford, Maurice de  210 Rochelle, Richard de la  209 Rodom, William  59, 64 Roger the miller of Woodburn  58 Rokeby, Thomas  118 Romsey, John  80 Ross, C., historian  106 Rothbury  125 Rothbury, Walter  80 Rothesay, duke of, see Stewart, David Roux, Alain le  100, 102 Roxburgh  47, 49, 52, 54, 114–15 Ruthall, Thomas, bishop of Durham  123 Rycz, Anthony  99, 109

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224

INDEX

Sadberge  79, 117 Saghou, John  71 St Albans  23 St Quentin, Margaret  105–6 St Quentin, Thomas  105 saints, see Cuthbert; Etheldreda; John of Beverley sake and soke  158–9, 171, 183, 18–90 Salisbury, earl of, see Richard sanctuary  25, 62, 65, 128 Scalacronica  39, 91 Scammell, J., historian  5 Scremerston, William  78 Scrope of Bolton  104–5 Scrope of Masham  104 Scrope, Geoffrey  104 Scrope, Richard  104–6 Scrope, William  107 seals  25, 70, 72, 97, 209 Selkirk Forest  27 serjeants  61, 179 sheriff courts  156, 159 Shotley  75 Shrewsbury  145, 147, 149 Shrewsbury, earl of, see Montgomery Shropshire, county court  143, 145 Shropshire, sheriff of  146 Simonburn  69 Slingsby, William de  115 Smith, J.B., historian  19 Smyth, Agnes  65 South Cave  113 sport  159 Sprouston, liberty and regality of  25–6, 167, 171, 197 Stainmore  102 Stanhope, Richard of  64 Stapleton, William  72 Stephen, king of England (1135–1154)  10, 17 Stewart, Alexander, of Badenoch  27 Stewart, David, duke of Rothesay  49 Stewart, David, earl of Strathearn  193, 196 Stewart, John, earl of Carrick  49, 197 Stewart, Robert, duke of Albany  44, 193 Stewart, Robert, earl of Fife  181, 196 Stillingfleet, Nicholas de  113 Strathearn  31–2, 193 Strathearn, earldom and regality of  169, 177, 193, 197 Strathearn, earls of, 24, see also Gille-Brigte; Stewart, David Strathord, barony of  193

Strayer, J.R., historian  155–6, 176, 177, 183–4, 187, 192–3 Strubby, Roger  63 suicide, see crime Sules, Ranulf de  185 surnames  121–2, 124, 127, 129–30, 136, 138–9 Sutherland, earl of, see William Sutherland, earldom and regality of, 169, 193, 197 Tailboys, George  122–3 Tailboys, Walter  76 Talbot, Richard  116 taxation, immunity from  93–5 taxation, in Wales  145, 148, 150, 152 Tempest, Thomas  137 Terregles, regality of  197 theft, see crime Thibaut V of Champagne  201 Thirlwell, Richard  116 Thockrington  61, 71 Thomond  202–3, 205–6, 208–9, 214 Thornbrond, Roger  60 Thorney  20 Thornton, Nicholas  124 Tickhill  100–1, 115 Tillmouth  78 Tipperary  21 Todd, Edward  126 tongue, bitten off  76 treason, see crime Trim  15, 23, 34, 201–5, 208–12, 215 Tudor, Edmund, earl of Richmond  101 Tughall, Robert of  64 Turpyn, Nicholas  59 Twizel  78 Twizel, William  94 Tynedale  14–5, 17, 21, 29–31, 33, 57, 59, 61, 73–4, 77, 111, 114, 116, 118, 120–40 Tynemouth, prior of  57, 73, 65, 135, 136 Ufford, Robert  202, 207 Ughtred, Thomas  115 Ulgham  61 Ulster  12, 15, 23, 202, 205, 209, 214 Ulster, earls of  31, 33; see also Burgh Umfraville, family  56–7 Umfraville, Gilbert de, earl of Angus  58, 73 Umfraville, Robert  51, 73 Valence, Joan de  203, 207 Verdun, John de  210–11 Verdun, Theobald de  210, 212–13

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INDEX

Vere, Geoffrey de  147 Vescy, Agnes de  202, 210 Vescy, John de  167, 203 Vescy, William de  203, 209, 216 Wake, Thomas  118 Wales, March of  7, 9, 10–12, 18, 31, 42, 96, 114–15, 141–54, 200 Walker, Richard  71 Walker, S., historian  98 Walter son of Alan  185, 189 Wanton, John de  115 Wark  51, 69 Warkworth  61 Warwick, earl of, see Beauchamp Weardale, John  81 Weobley  213 Wessington, John prior of Durham  65 Westmorland  14 Westmorland, earl of, see Neville Wexford  15, 23, 202–5, 207, 210, 211 Whithorn, bishopric of  12 Whitley, Thomas of  59 Whittington castle  149 Whytwas, Andrew of  66 Widdrington  137 Widdrington, Gerard  90 Widdrington, John  124, 132, 137

225

Wight, Isle of  33–4 Wigmore  149 Wigtown, earldom and liberty of  12–13, 29, 169, 174, 193, 198 Wigtown, earl of, see Fleming William I, king of England (1066–87)  100, 102 William I, king of Scots (1165–1214)  12–13, 172, 176, 183, 185, 187, 189, 191–2 William, earl of Sutherland  197 Winchester, statute of  118 Wogan John  204, 206 Wolsey, Thomas  127, 128 wolves  159 Wolvesheved, Geoffrey  60 Woodrington, Roger  76 Wooler  69, 75 Wooler, barony of, 79 Wykok, Richard  63 Wyntoun, Andrew  181 Yeavering  90 York  21 York, archbishop of  57, 115, 118; see also Gray York, duke of, see Richard  45 York, St Mary’s abbey  115

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Regions and Regionalism in History Volumes already published I: The Durham Liber Vitae and its Context, edited by David Rollason, A. J. Piper, Margaret Harvey and Lynda Rollason, 2004 II: Captain Cook: Explorations and Reassessments, edited by Glyndwr Williams, 2004 III: North-East England in the Later Middle Ages, edited by Christian D. Liddy and R. H. Britnell, 2005 IV: North East England, 1850–1914: The Dynamics of a Maritime Region, Graeme J. Milne, 2006 V: North-East England, 1569–1625: Governance, Culture and Identity, Diana Newton, 2006 VI: Lay Religious Life in Late Medieval Durham, Margaret Harvey, 2006 VII: Peasants and Production in the Medieval North-East: The Evidence from Tithes, 1270–1536, Ben Dodds, 2007 VIII: The Church of England and the Durham Coalfield, 1810–1926: Clergymen, Capitalists and Colliers, Robert Lee, 2007 IX: Regional Identities in North-East England, 1300–2000, edited by Adrian Green and A. J. Pollard, 2007

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