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de Smith, S. A.
1951.
The Prerogative Writs.
The Cambridge Law Journal,
Vol. 11,
Issue. 1,
p.
40.
Article contents
II. John de Warenne and the quo waranto Proceedings in 1279
Published online by Cambridge University Press: 20 December 2011
Extract
The story of John de Warenne's rusty sword and the blustering speech with which he proffered it before the justices in eyre in the quo waranto proceedings in 1279 long held it s place both in serious and popular accounts of Edward I's reign. It put, indeed, in dramatic, perhaps even in theatrical, form the essence of the struggle between the king's theory of sovereignty which was sound law and the barons' claims to hold their franchises by prescription which in a good many cases was sound history as indeed the king was at length constrained to admit in the statutes of 1290. Maitland apparently did not question the tale, and the extract from the chronicle in which it occurs held its place in eight successive editions of Stubbs' Charters. But the most eminent of our living historical critics entertained doubts, and when in 1910 Dr Round published his work on Peerage and Pedigree, which was relished by the general public almost as much as it was valued by the learned world, it was found that the rusty sword, with many other tales of the Conquest, was dismissed from the canon of history. When, three years later, Professor Davis produced a ninth edition of Stubbs' Charters—a work no less valued by the world of scholarship than Dr Round's, though it may be doubted whether it was much read for entertainment in other quarters—the well-known extract had silently disappeared.
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References
page 110 note 1 v. note on p. 131.
page 110 note 2 The problem is stated and the necessary references supplied by Mr A. L. Poole in the Cambridge Medieval History, v. 349 n. 2.
page 111 note 1 Hemingburgh, ed. Hamilton, II. 6.
page 111 note 2 Round, Peerage and Pedigree, I. 321–1
page 112 note 1 See Hardy, Catalogue of Materials (R. S.), III. 254 sgg.; Chronicon Walteri de Hemingburgh, ed. Hamilton, Eng. Hist. Soc. Introd. vols. 1. and 11.; Gross, Sources and Literature of English History, 2nd ed., No. 1788.
page 112 note 2 Chronicle of the Monastery of Abingdon, 1218–1304, ed. J. O. Halliwell, Berkshire Ashmolean Society, 1844; Hemingburgh, ed. Hamilton, II. 6 n.; Gross, op. cit. No. 1741.
page 113 note 1 Cp. pp. 14, 15, 19.
page 113 note 2 This would also account for another difficulty to which Dr Round has not referred. The chronicler states that other magnates associated themselves with Warenne and his contention and departed tumultuantes et impacati, whereas, however much they may have resented the proceedings they seem to have acknowledged the jurisdiction of the court and pleaded as Warenne himself did.
page 114 note 1 Coke, Second Institute, 4th ed., p. 499. On what follows see also Reeves, History of English Law, 3rd ed., 1. 426 sqq., 11. 219 sqq.; Pollock and Maitland, ibid. 2nd ed., I. 336–7. 572; II 521, 661; Holdsworth, ibid. 3rd ed., I. 88–9, 180, 229–30; Statutes of the Realm (Rec. Com.), I. 45 sqq.; Placita de Quo Warranto (Rec. Com.), p. xvi.
page 114 note 2 See the references to the cases in Bracton's Note Book, I. 185.
page 114 note 3 ibid. Plac. 1108, 1136, 1141.
page 114 note 4 ibid. Plac. 1390.
page 114 note 5 ibid. Plac. 241. In 27 Hen. III. the Bishop of Exeter is summoned to show by what warrant he claims to hold a manor in Sussex and half of another in Surrey. Plac. Abbrev. (Rec. Com.), p. 118 b. Similar cases are cited in the index, p. 568.
page 114 note 6 Bracton (R. S.), fo. 284 b, 285, 369 b, 373 b; Note Book, Plac. 1175, 1181, 1358.
page 114 note 7 ibid. Plac. 391.
page 115 note 1 ibid. Plac. 578, cp. Plac. 1162. Cp. the case of Ballingham v. Burghill, Y. B. 6 Ed. II. Pasch. (Seld. Soc), pp. 78 sqq., and Mr Bolland's discussion of the point Maitland raised, Introd. pp. xx–xxi.
page 115 note 2 Statutes of the Realm (Rec. Com.), I. 45 sqq.
page 115 note 3 Plac. de Quo Warranto (Rec. Com.), p. 745.
page 115 note 4 Plac. Abbrev. p. 200.
page 115 note 5 Coke, Second Institute, p. 495.
page 117 note 1 See Jacob, Studies in the Period of Baronial Reform and Rebellion (Oxford Studies in Social and Legal History, vol. VIII), Part II. Dr Jacob observes (p. 149) that “to penetrate to the mesne and smaller tenants is at times in the absence of records an impossible task.” The present case turns precisely on the situation of a mesne tenant.
page 117 note 2 Ramsay, Dawn of the Constitution, p. 238, gives the references to the chronicles.
page 117 note 3 These facts were established by the findings of an inquest in the course of Warenne's suit to which reference will be made presently.
page 117 note 4 Cal. Rot. Pat. 1258–66, p. 529.
page 117 note 6 ibid. 1258–66, p. 540.
page 117 note 7 ibid. 1266–72, p. 177. The land appears to have passed from Ashby to Moses, father of Elias. See Bridge, History of Northamptonshire, I. 314.
page 118 note 1 October 6, 1265, in Foedera, 1. 464.
page 118 note 2 Curia Regis Rolls, 193 (Mich. 53 and 54 Hen. III m. 28), 197 (Hil. 54 Hen. III m. II). I am greatly indebted to Mr W. H. B. Bird for skilful help in working out this matter.
page 118 note 3 Cp. Jacob, op. cit. pp. 201 sqq., and particularly pp. 205 and 213.
page 118 note 4 The words of the record are “Propter quod predictus comes sensit se gravatum propter prolixitatem diei. Ita quod ad instanciam predicti comitis mandavit dominus rex etc.” For the commission see Cal. Rot. Pat. 1266–72, p. 472.
page 119 note 1 These can scarcely have been anything but the Ashby inheritance.
page 119 note 2 Wykes (R. S.), 233–2; Flores Historiarum (R. S.), III. 18; Ann. de Winton (R. S.), II. 108, cp. Tout, D.N.B. Lix. 366, LXIII. 414–15; Maiden, V.C.H. Surrey, I. 347–8. There are a number of discrepancies as to date and some as to fact in these accounts. Wykes says that Alan was killed in court whereas it is clear that he did not die until after Warenne's pardon on August 4. Mr Maiden must be mistaken in giving the year as 1268. As to the date of the incident, Wykes gives the Tuesday before the Nativity of St John the Baptist, i.e. June 20, and this is adopted by Professor Tout.
page 119 note 3 The pardon rehearsing these facts is printed from the Patent Roll in Foedera, I. 485. The evidence of the chronicles is further confirmed by official documents, e.g. Cal. Rot. Pat. 1266–72, pp. 438, 482. The Flores says “Qui regi postmodum per purgationem et pecuniam satisfecit parti laesae multa promittens, processu temporis parum donans,” loc. cit. The king was still receiving payments in respect of the fine in 1275; see Cal. Rot. Clans. 1272–9, p. 218.
page 120 note 1 Pollock and Maitland, Hist. Eng. Law, 2nd ed., 1. 572–3.
page 121 note 1 Plac. de Quo War. pp. 676–7; cited in Pollock and Maitland, op. cit, 1. 573 n.
page 122 note 1 Peerage and Pedigree, I. 320–2. The passages in inverted commas are quoted by Dr Round from the prefaces to his Ancient Charters and Geoffrey de Mandeville.
page 122 note 2 Statutes of the Realm (Rec. Com.), I. 46; cp. Bolland, Eyre of Kent (Seld. Soc), III. Introd. p. xxxiii.
page 123 note 1 Rot. Hundred, II. 201.
page 123 note 2 Plac. de Quo War. p. 754.
page 123 note 3 ibid. p. 745.
page 123 note 4 Bolland, Eyre of Kent (Seld. Soc), I. Introd. p. xxxii.
page 123 note 5 Plac. de Quo War. pp. 750–1.
page 124 note 1 Feudal England, pp. 229–30. Freeman's words are quoted from Norman Conquest, v. 465.
page 124 note 2 Y.B. 6 Edw. II (Seld. Soc), Introd. pp. x–xi.
page 124 note 3 Harvard Law Review, VII. 266. The italics are mine.
page 125 note 1 Hist. Eng. Law, 3rd ed. II. 538, 545. The point is abundantly illustrated from the Year Books in the pages which follow on this passage.
page 125 note 2 “Year Books and Plea Rolls as sources of Historical Information,” R. Hist. Soc. Trans. 4th series, v. 28 sqq., cp. Pike in Harvard Law Review, VII. 266 sqq.
page 125 note 3 Eyre of Kent (Seld. Soc), I. Introd. p. lxxxii.
page 125 note 4 Madox, Exchequer, I. 236. The record is printed in the footnote.
page 126 note 1 The extract from the roll is printed by Mr Turner in Y. B. 4 Edw. II (Seld. Soc), Introd. p. lxiii sqq..
page 126 note 2 Richardson, op. cit. pp. 40, 41.
page 126 note 3 Y. B. 15 Edw. III (R. S.), pp. 270–5.
page 127 note 1 Dugdale, Baronage, I. 79, from the original plea-roll. The italics are Dr Round's.
page 128 note 1 “See my paper on ‘The Castles of the Conquest’ in Archaeologia, vol. LVIII.”
page 128 note 2 Peerage and Pedigree, I. 320–3. Dr Round describes this as ludicrous. Is it not possible that it was intended to be, i.e. that there was a deliberate pun on Warenne's name?
page 128 note 3 Rot. Hundred, II. 209 a.
page 128 note 4 Rot. Parl. 1, 6 b.
page 129 note 1 Rot. Hundred, II. 208 b.
page 129 note 2 Plac. de Quo War. pp. 750–1.
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