Rhetorics and Realities: the Making of English Medieval Legislation

1The legislative capacity of the English monarchy was a significant element in royal governmental power in the later middle ages. This was in part because of the control it allowed the king’s government to exercise over the whole body of the king’s subjects (for some purposes only over their free subjects, but for others over all of those subjects, both free and unfree)1. The king of England had, and exercised on a regular basis, the power to make legislation that created generally binding legal norms with few significant restrictions in terms of subject matter, plus penalties for their infraction. He also possessed in the network of royal courts a mechanism to ensure their enforcement that was at least partially effective. The king’s legislative capacity was also important, perhaps less obviously, because legislation was one of the few ways in which kings were able to demonstrate their practical utility to the mass of their subjects on something like a regular basis. The king’s power to legislate represented a significant mechanism for harnessing the loyalty of the king’s subjects and for fostering their attachment to the monarchy. Legislative power allowed kings to offer general remedies for their subjects’ grievances and a means to create new rights for them as against their lords and, perhaps as importantly, against their neighbours. Kings evidently benefited, or hoped to benefit, from this fact.

2In this still largely oral world, the publication of legislation through public proclamation in the localities took on a special importance2. It was not just a way of ensuring that those affected by legislation were made aware of the new rules they were in future going to be required to observe, but also an important channel through which the king communicated directly with his subjects, indeed one of the very few ways in which the king regularly did so. Thus the drafting of medieval legislation was not just a matter of drafting technically adequate proposals which might be capable of achieving the intended result, especially in the courts where so many of them were going to be interpreted. It was also required to perform a significant rhetorical function in explaining why legislation was desirable or necessary and in claiming the credit for its enactment for the king’s government. The rhetoric of legislation (more specifically of legislative drafts, though this often survived to form part of the legislation as enacted) also typically performed another important function. The king could probably enact and publish some specific types of legislation on his own initiative and without any need for wider consultation3. But for most legislation, even if the legislative initiative lay with the king and his officials, consent was needed from a wider group of magnates (and later from parliament) before it could be enacted. It is clear that this was no mere formality and might lead to major changes in the wording of the legislation before it received approval4. Some of the rhetoric which legislation contained seems to have been inserted in order to obtain the approval of members of this group as well.

3In this paper I will be looking at the rhetoric of legislation enacted during the thirteenth and early fourteenth centuries, a period when the initiative in legislation still clearly lay with the king and his advisers rather than (as later) with the Commons in parliament. It was also a period which saw the enactment of a considerable volume of legislation with a major and continuing impact and importance. What is, I think, clearly observable in the rhetoric of the legislation of this period is a desire to convince, to present matters in a favourable light, even to take credit for things that can be quite misleading, if taken literally. It is misleading both about the past, that is about events that had taken place prior to the enactment of the statute, and also about the future, about what the legislation was intended to achieve, the effect it was intended to have. This opens, if only to the modern historian, a significant gap between the rhetoric or rhetorics of the legislation and what we can discover about the legislation’s background and its intended and actual effect, the realities of that legislation.

4The statute of Marlborough was enacted in November 12675. This was not long after the conclusion of the civil war between Henry III and his magnate opponents led by Simon de Montfort and when peace had largely been reestablished in England. The statute gives every appearance of being a carefully considered response to the disorder associated with the recent civil war and its aftermath. Its preamble describes England as a country that had recently been disturbed by tribulations and harmed by dissensions and which therefore needed a reform of the law in order to ensure the peace and tranquillity of its inhabitants. It talks of the king and his lieges (the king’s council) as supplying that necessary remedy through the provisions, ordinances and statutes which follow. There then follow four chapters which do indeed seem to be specifically concerned with problems which had arisen during the recent period of disturbances. Magnates and others are not to seek extra-judicial redress for supposed wrongs or to pressurise those not under their jurisdiction to come and answer for such wrongs in their courts, as they have recently been doing. Nor are they to resist the proper execution of the process of the king’s courts or to violate restrictions on the use of distraint. Punishments are threatened if these rules are broken. The twenty-five clauses which follow are not so obviously related to recent events but the preamble certainly suggests that they too are part of a general overhaul of the law made necessary by recent events and experience. There is nothing anywhere in the statute to give even the slightest of hints of what is actually the case, that all except the first three of these twenty-five chapters of the statute of Marlborough are a final, revised revision of legislation that had first been enacted some eight years earlier in October 1259, when it had been known as the Provisions of Westminster6. The original context of a major part of this legislation is therefore not the aftermath of civil war and the related disturbances but the very different circumstances which had obtained in 1259, not long after a baronial council with a reforming programme had taken over governmental power in England.

5This was not the first time that those drafting legislation in the name of Henry III appear to have deliberately ignored the prior existence and previous enforcement of legislation when they issued apparently original legislation that in effect confirmed legislation already in existence. In May 1262, Henry, after resuming control of the administrative machinery of royal government, had made an ambiguous repudiation of the work of the reforming baronial council7. This had left it unclear whether or not this covered these same Provisions of Westminster of 1259. Half a year later, in January 1263, Henry had reissued the Provisions in a lightly revised and extended version. The new revised preamble gave no hint that the legislation which followed was anything but entirely new. Only someone who knew the previous legislation well would have noticed just how carefully the revised preamble had been drafted to spell out the king’s view of the legislative process and his pre-eminent role in it and would have seen that this was a deliberate contrast to the view of the reforming council as enunciated in the 1259 Provisions8.

6The omission of any reference to the earlier legislation is explicable in this case by king Henry’s own view of the 1259 Provisions. For Henry they were evidently null and void, something to which he had only consented under duress. It was therefore only now that the legislation (in its new, revised form) was for the first time coming properly into effect. This was not, of course, the case in 1267; indeed, it was the king’s prior voluntary acceptance of the Provisions in 1263 that helped to ensure their survival. One of the recommendations of the committee appointed at the Kenilworth parliament of 1266 to assist in the general process of conciliation was that the king continue to observe those “concessions which he has made spontaneously and without coercion” and also “confirm on a permanent basis other necessary measures devised by his men with his agreement”9, and this clearly included the 1263 reissue of the Provisions. But the wounds left by the period of Baronial Reform seem to have been such that the king deliberately avoided any reference to the 1263 reissue, even as he reaffirmed its substance. Contemporaries who knew the earlier legislation cannot have been fooled, but within a generation, when knowledge of the earlier legislation was lost, as lawyers copied the later legislation but ceased to copy the earlier, this had probably ceased to be the case.

7A different kind of distortion of the immediate past is to be found in the preamble to the statute of Mortmain of November 127910. This stated that it had been enacted some time previously that the religious were not to “enter the fees” (that is, acquire the land) of anyone without the permission and against the wishes of the lords of whom those fees were held, but that despite this the religious had subsequently entered not only their own fees (not, of course, caught by the legislation) but also the fees of others, appropriating and buying them and sometimes receiving them by way of gift, and went on to explain the unfortunate consequences of this both for the defence of the kingdom and in terms of losses thereby caused to lords. It was this nonobservance of the earlier legislation that was then cited as justification for the new and more drastic legislation that totally prohibited all grants of land to the church. There had indeed been earlier legislation in much the terms cited by the statute of Mortmain. This had formed part of the original Provisions of Westminster of 1259, of which it was clause 1411. But when the Provisions had been reissued by king Henry III in 1263, this clause had (apparently deliberately) been omitted from the reissue and it had not been reinstated when the Provisions had been reissued a second time in 1264 or a third time in 1267 as part of the statute of Marlborough.

8It is not entirely clear whether Edward I and his advisers actually knew that there was no valid legislation in existence requiring the consent of lords to any alienations in mortmain made by their tenants. Two years earlier, in Michaelmas term 1277, the abbot of Croxton had been summoned to answer Robert Luterell in the Common Bench (at Westminster) as to why “whereas it is contained in the provision of Marlborough that the religious are not allowed to enter the fee of anyone without the permission and agreement of the chief lord of that fee, namely the lord of whom the property is immediately held”12, he had nevertheless entered land held of the plaintiff “without the permission and agreement of the same Robert and against the terms of the said provision”13. This seems to indicate that the king’s chancery by 1277 supposed that a clause similar to that which appeared in the original Provisions of Westminster had formed part of the statute of Marlborough and was willing to issue a writ for a litigant for the breach of its provisions14. No pleadings have been found in this case and it was probably settled out of court15. In a second case from the Yorkshire eyre of 1279-1281, which was almost certainly heard during Trinity term 1279 (Deyvill v. master of the Templars et al.), the defendants were summoned to answer why “whereas it has been provided by the common council of the realm that the religious are not allowed to enter the fee of anyone without the permission and agreement of the chief lord of that fee, namely the lord of whom that property is immediately held”16, they had entered land held of the plaintiff without his permission and agreement17. No particular statute was mentioned in this case. This time the writ did not go without challenge. The defendants objected that no such legislation had ever been published by the present king or his ancestors. The justices, however, advised the defendants to answer over. Writs of a similar form had previously been issued by chancery and this indicated that they had already received royal approval18. The defendants, however, continued to object to the writ, arguing that the princes and magnates of England had never agreed to such legislation or assented to its publication. They refused to answer the writ until the king’s wishes in the matter were known. Before judgment could be given, however, the parties reached a settlement, at the octaves of Hilary 1280, under which the defendants were allowed to retain the land. They had, however, to pay sixty marks for this permission and also to agree to hold the land directly of the plaintiffs19. As I have suggested elsewhere, the chronology suggests that it may even have been the discussion of this second case by the king’s council that led on to a wider discussion of the continuing problems caused by mortmain alienations and to the enactment of the statute of Mortmain.20 It is a little difficult to believe that Edward I (who had been present at the enactment of the statute of Marlborough) and his advisers (many of whom had probably been there too) really did not know that the statute did not contain the clause about mortmain alienations and there was certainly one “official” text of the statute in official custody (in the Red Book of the Exchequer) which could have been consulted on this point and would have given the correct answer. But perhaps they simply relied on their memories and assumed that everything that had been in the original Provisions of Westminster had also been incorporated in the statute of Marlborough. This was in general true, and only untrue of this particular clause. So they may not have been deliberately intending to deceive, but nonetheless have ended up doing so.

9Legislation may also mislead us and may sometimes have misled contemporaries too when it suggests the existence of a general and well-known social and/or legal problem, but seems actually to have arisen out of the consideration of one particular set of facts as revealed by a single piece of litigation. The best example of this known to me is one of the two parts of chapter 6 of the statute of Marlborough, one of the clauses added to the Provisions of Westminster when they were reissued as the statute of Marlborough.21 This purports to be concerned with the problem created by a device used by tenants who wished to create secure leases which were not interrupted by a wardship.22 As the statute explains it, a tenant wanting to lease his lands for a fixed and secure period of time made what was in form a permanent grant of the lands being leased, reserving services for the period of the lease, but stating in the grant that these had been performed or paid in full for the period of the lease. The grant then reserved services greatly in excess of the value of the land from the end of this period in order to ensure that the lessee really did surrender the land at the end of his lease. Such a conveyance was on its face a permanent grant. Thus the lessee during his term had all the rights of a full landowner including the right to secure tenure of the land during the wardship of his lord’s seignory as well as the protection of the freeholder’s remedies against other kinds of dispossession; but at the end of the term the land reverted to the lessor/feoffor just as if the conveyance had been a lease. The statute suggests (though does not directly state) that such leases posed a general problem for lords.

10There is, however, little evidence to suggest that collusive feoffments of this kind had become common prior to 1267. Indeed, the only evidence I have found of their existence and use prior to 1267 comes from a case heard in the Common Bench a little over five years prior the enactment of the statute, in Hilary term 1262. It was a case brought by Isabel widow of William of Milding against Urian de St Peter to claim her dower third of an extensive holding at Dadlington in Leicestershire and by Hilary term 1262 Urian had already vouched Peter, the son and heir of William of Milding (the widow’s late husband), to warranty: requiring him in essence to take over the duty of meeting the widow’s claim.23 Peter was still under age and in the wardship of Walter of Merton, the king’s chancellor, who held this wardship by the king’s grant, and Walter had then sought the king’s aid in contesting the supposed obligation of warranty.24 It was the king’s serjeant, Laurence del Brok, who asked Urian for the deed attesting the heir’s obligation to provide warranty. Urian or his serjeant produced the deed by virtue of which he held the land and under which William had promised him warranty on behalf of himself and his heirs. The deed is reproduced virtually in full in the enrolment. It corresponds in almost all respects with the form of grant mentioned in chapter 6. William had purported to grant his manor of Dadlington to Urian for life (whereas the legislation’s use of feoffati suggests a grant in fee) for a rent of forty pounds a year but had stated in the grant that he had already been paid the whole of the rent for the first fifteen years, reserving only a half mark a year still to be paid, and that the forty pounds was only to be payable after fifteen years or (in case of unforeseen interruptions) after Urian had received fifteen crops. William had also built in a specific condition for the reversion of the tenement if Urian failed to pay the additional rent after the receipt of the fifteen crops. Since the lands were clearly not worth forty pounds a year this was essentially a fifteen year lease but in the form of a life grant.25 Laurence objected (on the king’s behalf) to the contradictory nature of the deed. It was in form both a life grant and a lease for fifteen years plus a right to extend the lease for the lessee’s life. He argued that its inconsistencies meant that it was not sufficient in law to oblige the heir to warranty and therefore also insufficient to oblige the king as the warrantor of his guardian to warranty. The case was then adjourned for judgment. Before judgment could be given the case was discussed by the king and the whole of his council. Their decision, as communicated to the justices of Common Bench by a royal writ issued on 24 February 1262 at Windsor authorised by the king and the whole of the council, was that Isabel should be given her dower from the lands held by Urian, though only on a temporary basis (in tenenciam). They adjourned for further consideration a definitive judgment on whether or not Urian was entitled to his warranty. It can be no coincidence that this case involved a “fictitious feoffment” of almost exactly the form mentioned in the legislation; that the case was one involving not just the king but also one of his leading counsellors and servants, Walter of Merton; and that the case evidently led to conciliar discussion about the validity of such feoffments and whether they should be allowed to deprive lords of their rights of wardship. It did not lead to legislation in 1262, perhaps because there was then some continuing doubt and discussion about whether such deeds should be treated as wholly void (as Laurence del Brok had argued) or as voidable in so far as they attempted to deprive the lord of his wardship though valid as against the grantor and his heirs once they had come of age, the policy eventually adopted by the statute. For much of the intervening period the council was perhaps too busy with other matters anyway to discuss it further. But it was probably this case, and this case alone, which then led to the drafting of the second part of chapter 6 of the statute of Marlborough.

11The statute of Mortmain, already discussed for its misleading account of the background to the statute, was also misleading in another, and more fundamental respect. The statute purports to prohibit all alienations in mortmain, all permanent grants of land and other property not just to religious houses but to any other kind of ecclesiastical tenant. Any attempted infraction of the prohibition was to render the property concerned liable to forfeiture. The immediate lord of whom the property was held was given a year to take possession of the forfeited land. If he failed, then each of the superior lords in turn was to be allowed six months to take possession of it. Somewhat confusingly, the statute also specifies that the king has a right of entry after the initial year but must then regrant the land to a new lay tenant. In practice, however, within six months of the enactment of the statute the king began to grant licences to allow alienations in mortmain notwithstanding the provisions of the statute: so that grants to the church continued but now required royal permission and this came to be granted only after a preliminary investigation (through an inquisition ad quod damnum), after evidence that the immediate lord had himself consented to the grant and (but only after 1299) after payment for the king’s licence.26

12The shortness of the period of time between the enactment of the legislation and the issuing of the first licence suggests that a licensing scheme may always have been intended, that it was never intended to stop all mortmain alienations. But if so, why was the legislation enacted in this form? The noted English legal historian, T. F. T. Plucknett, thought it was all a trick on the part of the king.27 The lay lords thought they were assenting to legislation prohibiting all mortmain alienations, but were merely creating the necessary preconditions for a system of licensing under which the king came to exercise the sole prerogative of “amortisation” and to receive a new source of income from doing so. The rhetoric of the king’s statute was all about a total ban on mortmain alienations; the underlying reality was that the king merely wished to control and profit from them. More recently Malcolm Bean has suggested that the statute had a rather different purpose. Its immediate (and successful) purpose was to bring the clergy (and more especially archbishop Pecham) to heel; and that it was retained (in tandem with a system of licensing) rather than repealed because the potential threat of a blanket refusal of licences was a useful weapon to hold in reserve against a potentially recalcitrant clergy.28 I have argued elsewhere that both these views are mistaken.29

13I am not sure that the statute and its rhetoric were, in this case, even intended to mislead, though that is the obvious way to characterize them. The prohibition of mortmain alienations and provisions for forfeiture for its breach enacted by the statute performed and continued to perform two useful functions, even after the introduction of the licensing system and even if these are not immediately apparent on the face of the legislation. The first is that they created the necessary preconditions for the subsequent (but virtually immediate) erection of a flexible licensing system. Because it was done this way (as a total prohibition followed by licensed exceptions) the details of the licensing system and its operation did not need to be spelled out in the legislation and could be (and indeed were) adjusted over time. They could also be (and were) operated with a considerable degree of royal discretion. The second is that retaining the provisions for forfeiture helped in the enforcement of the requirement of a royal license: the threat (and the reality) of seizures and forfeitures enforced both by lords and by the king’s officials in the case of unlicensed alienations ensured (for the most part) that grantors and grantees did go through the licensing system and seek licences before they went ahead with mortmain alienations.

14 The statute of Mortmain is perhaps the most obvious thirteenth century example of what one might reasonably describe as “disingenuous” legislation: legislation whose rhetoric suggests that it had one purpose, but which in fact had another, and rather different one. There are other examples, or possible examples, of this phenomenon. The most obvious is the statute of Acton Burnel of 1283 (and its close relative, the statute of Merchants of 1285).30 These established a system of local registries for the recording of debts and specially harsh mechanisms to ensure repayments of debts so registered when they fell due. The preamble to this statute justifies the legislation in terms of the hardships suffered by merchants who have sold property on credit and then found that their debtors do not pay up. The reason for this, the statute explains, is that there exists no mechanism to ensure the quick payment of debts. The consequence of this deficiency is that it has led to (foreign) merchants staying away from England with their merchandise to the damage of domestic merchants and the kingdom as a whole. The logic is strange and not wholly convincing: the deficiency appears to be one of long standing but the rhetoric suggests that there is some sort of immediate crisis for which legislation is required. The concern of the statute with the needs of mercantile creditors is then also reflected by the way that the provisions start off by referring to the creditor registering his debt as a “merchant”, although thereafter the statute merely refers to him as a creditor. It must be significant, however, that from the very beginning there was no attempt made to limit the use of the system to creditors who really were merchants and that it was in fact commonly used by other kinds of creditor. It was not until 1311 that any attempt was made to confine its use to merchant creditors (and indeed to further confine its use to merchant debtors as well)31. This suggests that from the beginning the king and its advisers had no intention of so confining its use in this way and always intended that others should have access to it as well; that they may indeed have thought it helpful to present it as intended for the use of foreign (and perhaps other) merchants but may have thought it more difficult to present a convincing case for allowing the use of the new procedures and mechanisms for other kinds of creditor; and that presentation of a “convincing” case was important for getting the consent needed for the approval of the legislation. The case for this is perhaps bolstered by the existence of the draft version of the statute of Acton Burnel, which shows that there was a group of people (presumably magnates) whose consent was needed before the legislation could go ahead and who could lead to quite significant modification of draft legislation.

15This paper has inevitably only begun to explore the gap between the rhetoric of legislation and the underlying reality, but enough has been said, I hope, to indicate that this is a significant area that requires further exploration: that historians interested in communications between rulers and ruled, the languages of power and persuasion in the later Middle Ages and beyond need to study legislation seriously and explore its real context and real, underlying intentions if they are to understand what is going on in this legal (but also popular) dialogue.