Feature of the month: No.9 February 2010

Melrose abbey and English law (lex anglicana): attitudes to England in the period before the Wars of Independence

Professor David Carpenter, Co-Investigator

In 1285 the abbot and convent of Melrose appealed to lex anglicana as protection against comital bailiffs in the earldom of Carrick. The claim has several points of interest. What did the monks mean by lex anglicana and why was it thought relevant to their predicament? And what does their appeal tell us about attitudes to England in this last period before the Scottish Wars of Independence, a period in which, as Dauvit Broun has shown through analysis of the Melrose chronicle, the monks were at last thinking of themselves as Scottish rather than simply as English. ¹ It is these questions which will be explored in this 'Feature of the Month'.

We know of the monks' demand through the resulting charter of the earl and countess of Carrick. ² This may be translated as follows:

'To all faithful in Christ to whom the present letters arrive, Robert de Brus, earl of Carrick, and Margery his wife, countess of the same place, eternal greeting in the lord. Since the abbot and convent of Melrose claim for themselves English law concerning the superdictum of our serjeants made against them and their men of their own lands of Carrick, and also, as we have learnt from their complaint, are no little aggrieved by the chattels and escheats of their men condemned for homicide and theft in our court, having been seized by the same [serjeants] for our use and that of our predecessors, we, inspired by charity and for the health of our souls and those of our predecessors and successors, for the relief and perpetual quiet [of the monks], henceforth charitably release the same from the said superdictum of our serjeants and [the seizure of] the chattels and escheats of their men condemned in our court. In testimony of which thing, we have placed our seals to these present [writings]. Given at Turnberry on the first day of June in the year of grace twelve eighty five.'

In Latin:

Universis Christi fidelibus ad quos presentes littere pervenerint, Robertus de Brus comes de Carryck et Margiria uxor eius, eiusdem loci comitissa, salutem in domino sempiternam. Quia abbas et conventus de Meuros de superdictu servientum nostrorum eisdem et hominibus suis de propriis terris suis de Carryck legem anglicanam sibi vendicantibus facto, et etiam de catallis et excaetis hominum eorundem in curia nostra pro homicidio et latrocinio dampnatorum ad opus nostrum et predecessorum nostrorum ab eisdem hucusque occupatis, non minimum ut per querelam eorundem didiscimus aggravantur, nos caritatis intuitu et pro salute animarum nostrarum, predecessorum et successorum nostrorum, ad eorundem relevamen et quietem perpetuam, dictum superdictum servientum nostrorum ac catalla et excaetas dictorum hominum suorum in curia nostra dampnatorum, caritative decetero relaxamus eisdem. In cuius rei testimonium presentibus sigilla nostra apposuimus. Dat' apud Torneber' primo die Junii anno gratie mcclxxx quinto.

The Robert Bruce of the charter was the son of the Robert Bruce, the competitor for the Scottish throne, and the father of the Robert who became king of Scotland. He had gained the earldom of Carrick through his wife, Margery, the daughter and sole heir of Niall, earl of Carrick, who died in 1256. ³ Margery is thus associated with her husband in the concession to Melrose, a good example of the rights of female heiresses under Scottish tenurial law which were here exactly the same as under the law of England. In styling her 'countess', the charter also shows how, as in England, this was a formal position, matching that of earl. Margery, indeed, was a countess of the highest status since she held the title in her own right, as opposed to simply gaining it through marriage.

A striking feature of the charter is that it reveals that in Carrick (as probably in other great provincial lordships) the whole operation of criminal justice was in the hands of the earl. This contrasted with the situation in royal Scotland, the Scotland of the sheriffdoms, where, as is very clear from an ordinance of Alexander II from 1245, the 'pleas of the crown' reserved homicide and other serious crimes for trial before royal officials in royal courts, and it was likewise the king who profited from the chattels of the convicted criminals. ⁴ Here, in Carrick, by contrast, men are condemned for homicide in the earl's court and it is the earl, not the king, who gets their chattels and their forfeited lands (this being the meaning here of 'estreats'). ⁵ In England, there were highly privileged liberties, especially in the far north (for example the Umfraville's Redesdale, and the king of Scotland's Tynedale) where the lords enjoyed equivalent powers to the earls in Carrick. ⁶ This, however, was highly exceptional. Through the great length and breadth of the English counties, serious crime was a matter for the king.

The second of Melrose's demands, namely to have for themselves the chattels and forfeitures of their men condemned for crime, had a counterpart in England, where many religious houses claimed the same right. In England, this privilege or 'liberty' as it was called, came under challenge during the course of the thirteenth century with the king insisting that the institutions show they had been granted the concession in specific terms by a royal charter. ⁷ It seems likely that Melrose had no prior claim to the liberty, either through a charter or through previous usage, hence the way the Bruce concession stated that the chattels and escheats had 'hitherto been seized for our use and that of our predecessors'. The monks were thus demanding something new, perhaps influenced by the knowledge of similar privileges enjoyed by religious houses in England. In England the liberty was usually linked to the further privilege in which the religious houses enjoyed the amercements imposed by the king's judges on their men. ⁸ That Melrose made no equivalent claim in Carrick is a point to which we will return.

What then of Melrose's first demand, namely to be free of the superdictum of serjeants, according to English law, lex anglicana? The superdictum of serjeants in Scotland (in French the surdit de sergaunts.) has been the subject of a useful article by W. Croft Dickinson. He shows fairly clearly that it was 'the independent right of attachment and indictment enjoyed by serjeants of the peace'. ⁹ In other words, men could be brought to trial simply on the accusation (which is how superdictum translates) of a local official, a serjeant, charged with keeping the peace. This may once have been common practice in Scotland and was clearly still operative here in Carrick where the serjeants were those of the earl rather than of the king. This putting of the power of prosecution into the hands of one person was clearly open to abuse, and might mean, for example, men of Melrose, and indeed Melrose itself, having to face all kinds of trumped up charges. What then were the monks thinking of in appealing to lex anglicana for relief?

When Matthew Hammond first drew my attention to the Bruce charter, I thought at once that the reference was to the English practice confirmed by chapter 38 of the 1215 Magna Carta, and I was relieved to discover that the same suggestion had been made by Paul Brand to Hector MacQueen. ¹⁰ In England the legal reforms of King Henry II had regularized the use of 'the jury of presentment', a jury, that is of local men charged, amongst other things, with accusing people of breaches of the king's peace. There was still, however, a fear that local officials might make accusations on their own initiative and so chapter 38 of the 1215 Magna Carta laid down that:

'Henceforth no bailiff shall put anyone on trial by his own unsupported allegation, without bringing credible witnesses to the charge'

Nullus ballivus ponat decetero aliquem ad legem simplici loquela sua, sine testibus fidelibus ad hoc inductis. ¹¹

The importance of this clause is shown by the way it was tightened up through various changes. In the first draft of the Charter, known as the Articles of the Barons, it had lacked both the 'henceforth' (decetero) and the 'bringing to the charge' (ad hoc inductis). ¹² More important, in the 1217 Charter, as also in the final definitive Charter of 1225, the 'on trial' or, translating more literally, the 'to law' part of the clause, was expanded to read that no bailiff was to place anyone 'to manifest law nor to oath' without credible witnesses. So the clause ran:

Nullus ballivus ponat decetero aliquem ad legem manifestam nec ad juramentum simplici loquela sua, sine testibus fidelibus ad hoc inductis. ¹³

The significance of the 'manifest' here is unclear, but the 'oath', juramentum, as W.S. McKechnie suggested, 'points to the sworn testimony of the jury'. If this is right, then the background is clear. Before 1215, the most normal way of putting someone 'to law' so as to determine their guilt or innocence was to put them to the ordeal. Clerical participation in the ordeal had, however, been banned by the 1215 Lateran Council, with the result that when, in 1218, the first great visitation of royal justices took place since the civil war, it was decided to replace the ordeal with trial by jury. It looks as though Magna Carta 1217, in its reference to accused persons being put ad juramentum, anticipated that decision. ¹⁴

Magna Carta did not insist that accusations could only be made through juries of presentment. Bailiffs could still make them but supported by credible witnesses, the precise nature of whom was left unclear. In practice, however, the jury of presentment seems to have been the usual way in which accusations were made after 1215 both in the local courts and before the justices in eyre. ¹⁵ On a national scale the issue of unsupported allegations by bailiffs did not raise its head again. ¹⁶ Thus the 'Petition of the Barons' of 1258 complained not of arbitrary accusations by local officials but of arbitrary amercements. ¹⁷

English practice, then, the practice of lex anglicana, clearly contrasted with that in Carrick. But how did Melrose know about it? The abbey's chronicle, here pretty contemporary with the events is describes, has lots of detail about the rebellion against King John, and even includes a long poem which mentions in general terms his concession of Magna Carta. ¹⁸ But there is no evidence that Melrose had a copy of the charter, let alone knew about chapter 38. About lex anglicana, however, and its practice with regard to accusations, Melrose most certainly did know, this, of course, through its interests in England. In north-west Northumberland, Melrose possessed 'extensive lands and summer pastures in the Cheviot hills'. ¹⁹ Centered on Trowup Burn, ²⁰ these were within the ward, or administrative district, north of the river Coquet, which sent its own jury of presentment to make accusations and answer all other matters before the justices in eyre. The procedure emerges very clearly in the rolls of the justices which survive for their visitations of 1256 and 1279. Both note the names of the four or five chief bailiffs of the ward who were sworn before the justices and whose equivalents in Carrick were charged with making the accusations in the earl's court. In Northumberland, by contrast, the rolls go on to list the names of the ten jurors from the ward, and it was they, along with their two electors, also named, who made the actual presentments. ²¹ They had a great deal to do since they presented large numbers of homicides (around thirty-five on the 1256 eyre), as well as a fair number of burglaries, crimes sometimes committed by men who came from or fled to Scotland. Only a tiny number of the malefactors (two on the 1256 eyre) were actually apprehended and hanged. Most, where they could be identified, had already fled, the punishment being outlawry. In that case, as with the few convictions, the chattels of the criminals (where they had any) were forfeit to the crown and the sheriff was charged with answering for them. ²² At the same time the justices imposed large numbers of the amercements on the villages (villatae) for failing to pursue and arrest criminals and for falsely valuing their chattels. ²³ Perhaps it was the absence of any similar system of financial penalties in Carrick which explains why Melrose did not, as we have seen, lay claim to the amercements imposed on their men in the same way as did great religious houses in England.

Melrose abbey, with its extensive properties in Northumberland, must, therefore, have been very aware of lex anglicana when it came to the procedure of presentments. But why did the monks prefer to appeal to English practice rather to Scottish? After all, in 1245, in a well known ordinance, King Alexander II, had introduced something like the jury of presentment to Lothian where, of course, Melrose itself was situated. ²⁴ Why then, rather than appealing to lex anglicana based on Magna Carta, did not the monks appeal to 'the laws and customs of the kingdom of Scotland' (referred to, for example, in the Treaty of Perth in 1266), or the ordinance of 1245? It is impossible to give a certain answer to this question, but one can only suppose that the English practice with regard to juries of presentment was more firmly established and thus a firmer basis on which to rest an argument than the practice emerging in Scotland. The ordinance of 1245 may have been paralleled by one for Scocia, that is Scotland north of Forth, but did not necessarily eliminate earlier customs. Alexander III later extended it to Galloway (specifically excluded from the 1245 ordinance) but to no very good effect because the community of Galloway complained to Edward in 1305 about how lords had re-imposed the practice. ²⁵ By appealing to Scottish law, the monks might have been calling in aid the very practices they wished to see eliminated.

All this has, as we have said, a wider significance when it comes to gauging attitudes in the period immediately before the Wars of Independence. As Dauvit Broun has shown, through unravelling the development of the Melrose chronicle, it is precisely in the late 1280s that we know the monks were at last thinking of themselves as Scots, rather than as Englishmen within the realm of Scotland. ²⁶ This would seem to fit well with Rees Davies's affirmation that in the thirteenth century 'the national shutters were coming down'. ²⁷ It might also be wondered whether a factor in Melrose's new sense of nationality was a perception that English kingship was far more intrusive and oppressive than that in Scotland. ²⁸ Yet, of course, the monks' appeal to lex anglicana in 1285 puts all this in a very different light. Clearly, when it came to at least one area of law and legal procedures, the monks preferred England to Scotland, preferred (is it too much to say?) the civilized procedures of the one to the barbarous practices of the latter! They were not alone in their preference because in 1305 the community of Galloway petitioned Edward I against 'the strange and tortuous law which is called surdit de sergaunt'. ²⁹ The monks' own appeal is equally suggestive of the attitudes of the Bruces. Clearly they were not expected to dismiss it with a contemptuous 'what is English law to us Scots within the realm of Scotland?' Before the Wars of Independence, the divisions into separate peoples and kingdoms were far less clear cut than is sometimes imagined. This makes the tragedy of what happened all the greater.