In the mid-thirteenth century, the foolishness of a king of England, heavily in debt and obligated to the pope for a military adventure in Sicily, forced him to bargain away his domestic power in the hopes of financial relief. Thus, in 1258, a group of peeved magnates with the support of the nobility took over the government of Henry III. Without however challenging the idea of kingship, they then implemented administrative and judicial reforms which, temporarily at least, included the increased use of the querela, a legal proceeding initiated by informal oral complaint. The application of this method followed from the reformer’s desire to investigate the widespread abuse of royal power by local representatives of the crown.
Written complaints in petitionary form of this type are extant from much later in the century, 1292, from the reign of Henry’s more successful son Edward I. (In a previous post I discuss the nature of these “bills in eyre” and include a number of early examples.)
One court roll from the first year of this reform government includes what may be the first reference to a bill: a querela on a written document. The following detail shows the tail end of one of many membranes of a roll created by the English Justiciar Hugh Bigod. Of interest is the small slit at the foot the parchment and accompanying instruction: iunge id est billa “Join, that is the bill”.¹
Here, the bill itself, which may have been only the width of a finger, is long absent. It would have contained the details of a claim of trespass recorded on the same membrane, according to historian Andrew Hershey. As Hershey points out, this reference is unique. If complaints, usually oral, were written on bills these may have been kept with files of writs, now lost, and not usually attached to the roll, even temporarily as this one seemed to be.
The case which Hershey points out may be behind this querela is a dispute between the Abbot of Faversham in Kent and the Constable of Dover Castle. Hershey does not discuss the case or make any inferences about the dispute with regard to the bill. However, it would not be surprising that a Benedictine abbey had the wherewithal to present its case in writing. Ideally the plaint procedure was meant to open up the justice of a centralized authority to even the most humble and poor. The complaint from a powerful ecclesiastic landlord against a member of the reforming government’s newly appointed ruling council and constable of the most important castle in England, was not typical of those heard by Bigod.
In this instance the plaint involved a long standing argument over the manorial rights of the abbey and the community of Faversham. In an effort to escape as much as possible from the obligations and duties of the Abbey (their landlord) the residents had formally associated themselves with the Cinque Port of Dover. The confederation of Cinque Ports enjoyed a great deal of autonomy and power. Although economically and geographically distant from Dover, the townsfolk of Faversham’s agreement brought them under the protection of its charter. This brought them into deliberate conflict with the tenurial rights of the Abbey.²
A sidelong attack on the rights of the abbey was the basis of the written querela. The abbot complained that the new constable of Dover Castle, Richard de Grey, was responsible for holding an illegal court 25 miles away in Faversham, against the liberty of the abbot, and of breaking in to the abbot’s prison and taking prisoners there to his own jail. This sounds like a common kind of jurisdictional dispute over infangenethef, the right to capture and try any thief. For whatever reason Grey seemed to be involving himself in challenging the Abbey’s authority over the town of Faversham. The case was referred by Bigod to the Council, but the arguments continued for hundreds of years.
One of the first acts of this baronial council has been to appoint castellans. Richard de Grey may however have not been the best choice. He was removed from his post the next year for failing to recognize the subterfuge behind the letters allowing into England a papal ally of Henry who was threatening to excommunicate the barons.
An emissary from the pope had been sent to enforce an order in support of the bishop-elect of Winchester, who the reforming council had rightly exiled. The papal nuncio however could not enter the country without official permission, impossible to procure. The council had made sure the chancellor had sworn an oath not to act contrary to the wishes of the council and the ideals of the reform movement. It was the chancellor’s usual practice however to leave the great seal with a subordinate when he was absent from court. No one had thought to have this clerk swear the oath.
Henry, under the noses of the council, used the opportunity of the chancellor’s temporary absence to issue orders and a safe conduct to the constable of Dover Castle, Richard de Grey, who therefore escorted the safely arrived nuncio from Dover to a meeting in London of the king and stunned council. The council of course blamed Grey, he should have known better. But he had acted on what he considered reliable orders; the king however did not have the authority to issue those orders. Grey was duped by a perfectly ordinary order from the crown sealed with the Great Seal, the highest form of warrant. He was relieved of his post and the Justiciar Hugh Bigod replaced him as constable.
But for this kind of oversight, the Council at this time held the machinery of government in its hands, and was willing to correct the abuses of the nobility as well as of the crown. When the abbot’s case was referred to the council, they were still in the midst of transforming local government and creating legal reforms known as the Provisions of Westminster. An attempt was made to extend the investigations of administrative delinquency to all landowners and their representatives. It seemed like a new era of expertise was being born. But the broad use of querela was becoming an issue, and the reforming proposals of the government would eventually stall and mire in the “selfish conservatism of the mass of the baronage.” (Treharne, Baronial, 178)
In discussing the evidence for the existence of written querela, Hershey makes an important distinction between references to a cedula, and references to billa: “the former is a rather nondescript sheet, schedule or document which may have been attached to something else. While the latter, billa, is also a schedule, it carried with it preceptory implications.” (Hershey, Earliest, 231). The distinction will have continuing relevance. Petitionary form is common to many documents including preceptory actions, recognized by a legal system as initiating a procedure. It may be difficult to distinguish these two types of petition by their form alone, but a preceptory petition will likely have particular imposed rules or conventions.
When we see the culmination of Bigod’s judicial mission, reaching the City of London at the end of 1258, we can understand how important this distinction would have been to the clerks of 1259. Londoners, in the words of historian Treharne, “indulged in an orgy of querelae…. The Justiciar, as usual invited all men to show their grievances, and, allowing neither summons nor essoins [excuses] terminated the cases at once without observing the normal procedure. The majority of cases were querela:
“Personal transgressions such as assaults, cases of theft, debt, assignment of dower, disputes on the execution of the terms of a will, alleged disseisins [dispossessions] and other pleas of land….” However, “to the formalism of thirteenth-century land-law, the querela appeared a frivolous method of procedure when applied to the solemn matters of tenure and possession of land…. Whither this outrageous flouting of the grave, decorous and slow forms of established procedure might lead, none could tell. The landowning magnates at once took alarm, for it was in matters of freehold that this lack of orthodoxy seemed most horrible, and the magnates were therefore the chief enemies of the querela. Accordingly, in their charter of February, 1259,³ they insisted that all matters of freehold must be tried by writ and in the customary places. …the tendency to widen the use of the querela was always present, and the barons were very careful to restrict it in future to cases of personal transgression.” (Treharne, Baronial, 152-153)
The coalition of peers soon dissolved, the king regained his power, but then the movement’s ideologues pulled off a successful coup. So for a few years a second farcical stage of reform bloomed, and a dictator was chopped to pieces before royal normalcy set it with the Edwards.
Such a chaotic atmosphere was likely to engender creative bureaucratic methods, such as the temporary attachment of a written querela. At the same time the political structure limited the use of this form of petition. As the government of the crown expanded, carrying with it the selective obligation to dispense justice to all, local private jurisdictions and interests were threatened. Local agents of the crown would also continue to be subject to scrutiny, depending of course on the inclination of whomever ruled. The complainant’s bill would thereafter be more visible in the written record used as an investigative tool in governance and public order.
1. The existence of this reference was first pointed out by Andrew Hershey in his PhD thesis.
2. The history of relations between Faversham and the Abbey, including the Grey episode, are described by Murray.
3. The charter Treharne refers to, also known as the Ordinances of the Magnates, was a description of general aims of the reformers produced by the council as they drafted the details of reform legislation. In it they promise to abide by the same rules imposed on the crown, confirmed by royal letters patent. [Treharne, 137] The ordinationes facte per magnates de consilio regis link [Treharne, 158]
Hershey, Andrew. An Introduction to and Edition of the Hugh Bigod Eyre Rolls, June 1258-February 1259: P.R.O. Just 1/1 187 & Just 1/873. (unpublished PhD thesis, 1991.) available at EThOS
Hershey, Andrew. “The Earliest Bill in Eyre: 1259” Historical Research, vol. 71 no. 175 (June 1998), pp. 228-232.
Murray, K.M.E. “Faversham and the Cinque Ports,” Transactions of the Royal Historical Society, vol. 18 (Dec. 1935) pp. 53-84.
Treharne, R.F. “An Unauthorized use of the Great Seal under the Provisional Government in 1259.” The English Historical Review, vol. 40 no. 159 (July 1925), pp. 403-411
Treharne, R.F. The Baronial Plan of Reform, 1258-1263. Manchester University Press, 1971.