Mr. G. J. Turner (“Minority of Henry III,” part I, Trans. Roy. Hist. Soc., series II, vol. xviii. p. 288, note 3) says, “The treaty was in two parts, of which the text in the Thesaurus is the part executed by Louis.” I do not understand on what grounds this inference is based, as the Daubais (or Thesaurus) text has no attestations, and the formulae employed in it are precisely the same as those in the Rymer-Pontaudemer text, which purports to be attested by the English party. Indeed, I cannot bring myself to believe that the Daubais text can possibly represent the form in which the treaty was “executed” at all. Save for the one clause which is peculiar to it, it is a mere summary, and a very imperfect one, of some—by no means all—of the conditions which the Rymer-Pontaudemer text sets forth in detail. My inference from a comparison of the two texts is that the Daubais text is a mere scribe’s epitome of a third text, now lost, which probably was the true text of the treaty actually executed at Kingston on 12th September, and consisted of the substance of the preliminary draft (the Rymer-Pontaudemer text) plus the article about the Exchequer records.
NOTE VI
THE TENURE OF CROWN OFFICES DURING THE MINORITY
Mr. Turner (“Minority of Henry III,” part I, pp. 270–276) has gone into this question with great care and in considerable detail. He sums up his conclusions about it in four passages. (1) “It is highly probable that the three great officials, the two justices” (i.e., the chief Justiciars of England and Ireland) “and the Chancellor, claimed the right to continue in office till the King’s minority had determined.... Direct evidence of the claim is not forthcoming, but there are facts which point to it having been put forward” (p. 271). (2) “The sheriffs and castellans claimed to hold their bailiwicks throughout the King’s minority” (p. 272). (3) “A dispute between Engelard de Cigogné and William de Warenne as to which of them was entitled to the shrievalty of Surrey shows that it was decided early in the reign that the sheriffs who had been appointed by King John claimed the right to continue in office until his successor attained his majority” (p. 274). (4) “It had been decided that John’s sheriffs held office as of right during the minority” (p. 275).
Thus Mr. Turner—if I understand him rightly—regards the existence of this claim in the case of the great officers of state as merely a probable inference; but in the case of the sheriffs and castellans he regards not only the existence, but also the acknowledgment of the claim, as a fact, proved, so far as the sheriffs are concerned, by the case of the shrievalty of Surrey. That case is, briefly, as follows: Early in 1218 there were two rival claimants to the sheriffdom of Surrey; Engelard de Cigogné, who had been appointed to it by John in April, 1216, and William, Earl of Warren. The grounds of William’s claim are unknown. The most obvious conjecture is that he had received a grant, or a promise, of the sheriffdom in the summer of 1217 as the price of his return to allegiance; but this is only a conjecture; his claim may have been based on some old prescriptive right—his proper territorial designation was Earl of Surrey—or on some grant or promise made to him by John; John may have granted or promised the sheriffdom to William, before William’s defection from allegiance, on some special terms such as might justify William in arguing that on his “reversion” the promise was binding on John’s successor. The case was under consideration for nine months, from 1st February till November, 1218; and at the latter date it was still undecided, but Engelard was promised that if the decision went against him, he should be compensated by a grant of land and an annuity from the Treasury. The decision is unrecorded; the end, however, was that William got the sheriffdom and Engelard the promised compensation (Turner, pt. I, pp. 274–5). Whether this was the result of a formal judgement given by the Council in favour of Earl William’s claim, or of a compromise agreed upon between the two claimants and sanctioned by the Council, there is nothing to shew. On this case Mr. Turner comments: “The mere fact that the dispute between Engelard de Cigogné and William de Warenne arose, and was considered judicially by the Council, shews that it had been decided that John’s sheriffs held office as of right during the minority. Otherwise the dispute would have been settled by the immediate appointment of one of the claimants or of a third person without any consideration by the Council” (pp. 275–276).
To me the evidence furnished by this case does not seem as conclusive as it apparently does to Mr. Turner. The fact that the Council did not settle the matter in the summary and arbitrary fashion in which, no doubt, a King of full age would have settled it, does not to my mind necessarily imply an acknowledgement of lack of competence so to settle it. Bearing in mind that we know neither the origin and grounds of the dispute nor the mode in which its final settlement was arrived at;—bearing in mind also that the rival claimants were both of them men whose continued attachment to the King it was important not to endanger—I venture to think that the Council’s dealing with the case may have been dictated chiefly, if not entirely, by motives of policy. Mr. Turner himself says, in the very next sentence after the one which I have quoted above, “There can be little doubt that Gualo and the Earl Marshal acted prudently in allowing the sheriffs to continue in office” (p. 276). Precisely; and they would have acted very imprudently had they, without absolute necessity, given offence either to a servant of the Crown so faithful and so efficient as Engelard de Cigogné (who however, as we have just seen, did not “continue in office”), or to a magnate so powerful and so lately “reverted” as Earl William of Warren. To me it seems hardly safe to argue decisively from a case so isolated and so obscure.
As for the castellans, the custody of some of the King’s castles habitually (though not necessarily) went with that of the shires in which they stood, but others were quite independent of the sheriffs. Mr. Turner in his second article (Trans. Roy. Hist. Soc., 3rd ser., vol. I, p. 247) says with reference to a document of 1220 (or 1221) relating to Bristol castle: “Here we may see another recognition of the claim that the castellans who had been appointed by John had the right to remain in office during the King’s minority.” The only “other” instance given by him of anything that can be construed into recognition of such a claim on the part of a constable holding a royal castle independently (as distinguished from a sheriff holding, in conjunction with his sheriffdom, certain castles within his shire) is the case of Sauvey, which Geoffrey de Serland was on 17th December, 1216, ordered to deliver to William of Aumale, but with a proviso that if he were unwilling to do so, he should come in person, or send a trusty representative, to hear the royal commands concerning the matter (Pat. Rolls, vol. i. p. 13; Turner, pt. II, p. 236). This seems to indicate that, as Mr. Turner says ([l.c.]), “The Marshal evidently thought it prudent to give him [Geoffrey] a voice in the appointment of his successor”; but it proves nothing as to any claim of right on Geoffrey’s part having been recognized by the Marshal and his colleagues, or even put forth by Geoffrey himself. The Bristol document has in reality no bearing at all upon the point under consideration. It is a letter patent whereby, in December, 1220, or January, 1221 (see above, [p. 175]), the Justiciar and six other members of the royal Council became sureties for the King to Hugh de Vivonne, who was going to Poitou as seneschal of that country, that if Hugh should be recalled or should resign his office and return to England, “idem dominus noster rex restituet ei castrum Bristolliae sicut illud prius tenuit, vel assignabit ei aliam wardam in custodia alicujus castri vel terrarum ad valentiam custodiae praedicti castri Bristolliae et terrarum quam habuit de ballio domini regis Johannis et postmodum de ballio dicti domini nostri regis Henrici; quam custodiam castri Bristolliae et terrarum eidem domino nostro regi Henrico liberavit quando iter arripuit versus Pictaviam” (Pat. Rolls, vol. i. pp. 306, 307). [The sentence which I have italicized], construed literally, should of course mean that Hugh had originally received the custody of Bristol castle, and of certain lands, by a grant from John, and that this grant had been renewed by Henry. But whatever may have been the case with regard to the other lands here referred to, this was not the fact with regard to Bristol. Until 19th September, 1219, Hugh de Vivonne was merely lieutenant constable of Bristol castle for Savaric de Mauléon; on that day he, acting in pursuance of Savaric’s instructions and for Savaric (who had made up his mind not to return to England), surrendered it into the King’s hand, and thereupon immediately received it back again to hold “quamdiu nobis placuerit” as constable in his own person (Pat. Rolls, vol. i. p. 203).
I will not dispute that a claim to continuity of tenure was made, explicitly or implicitly, by some of the castellans, and that in practice they mostly succeeded in enforcing it; but that it ever received formal “recognition” seems to me disproved by (a) the oath of the barons at Henry’s second coronation, and (b) the Pope’s letters on the subject of the royal castles.
(a) “From the annals of Dunstable we learn that on the morrow of the coronation (in 1220) the barons who were there present swore that they would resign their castles and wardships” (castra et wardias suas) “at the King’s will, and would faithfully render accounts of their farms at the Exchequer” (Turner, pt. II, p. 239; see the original, from Ann. Dunst. a. 1220, [above, footnote 680]). This oath—taken at a time (18th May, 1220) when it had not yet been settled whether Henry was to attain his majority at fourteen or at twenty-one, and when his actual age was twelve years and seven months—is clearly to be understood as a promise to yield up the castles of which they had custody, and render account for them, whenever they should in the King’s name be called upon to do so, from that day forth, not merely after the King’s coming of age. Mr. Turner understands it thus, for he comments upon the passage, “In all probability the chief object of these proceedings was to obtain the castles of Rockingham and Sauvey from the Count of Aumale” (pt. II, p. 240). (b) On 26th May, 1220, the Pope issued orders that all prelates holding royal castles should surrender them; and on 28th May, that no man should be suffered to retain the custody of more than two royal castles at once (Roy. Lett., vol. I, pp. 535, 121; cf. [above, pp. 146, 147], and Turner, pt. II, p. 242). To me it appears that these letters are incompatible with any “recognition” by the Pope—who, be it remembered, was acknowledged by all parties as the legal overlord of England and the chief guardian of the King—of the doctrine of the castellans’ right to continuity of tenure during the King’s minority; and that the oath taken after the coronation is equally incompatible with any such recognition on the part of the regents in England, or even with any general recognition of that doctrine among the castellans themselves.
With regard to the great officers of state, Mr. Turner’s inference is based (pt. I, p. 271) on (1) the case of Geoffrey de Marsh, Justiciar in Ireland; (2) that of Richard de Marsh, Chancellor of England; (3) the parallel, or analogy, between the position of the great officers of the Crown and that of the lesser ones—“the sheriffs and castellans claimed to hold their bailiwicks throughout the King’s minority, and the greater officers of state must have considered that they were entitled to the same privilege” (pt. I, 272). Of (1) I have given the whole story in my text, pp. [94, 95], [123–125], [174, 175], [217], [259]. Of (2) Mr. Turner says: “Richard de Mareis, the Chancellor, seems to have grievously neglected his office, and to have left his duties to be performed by Ralph de Neville, the vice-chancellor. It is scarcely likely that he would have been permitted to enjoy the emoluments of his office while repudiating its burden, if he could have been removed” (pt. I, p. 272). The Chancellor’s office, unlike that of the Justiciar or the sheriffs, was necessarily vacated by the death of the King, inasmuch as he held it (as Mr. Turner points out, pt. I, p. 271) not by letters patent but by virtue of the delivery of the King’s seal into his hands, and every King had a new seal. The Chancellor appointed by John therefore, could not “claim the right to continue in office until the king’s minority had determined”; such continuity was impossible in an office conferred by the delivery of a symbol which changed with a change of sovereigns. He may, as a great minister of the Crown, have claimed a right to be re-appointed for the term of the King’s minority. A formal re-appointment would not be possible in his case till the new great seal was made, and this was not till October, 1218; but there may have been an informal agreement by which he was left in possession of the functions and rights appertaining to the chancellorship throughout the two years during which the Marshal’s seal was used instead of the King’s, on the understanding that when this latter arrangement terminated he was to receive the new seal in the usual way. Such an agreement need not, however, imply any right of continuity in office. Richard de Marsh was not the only Chancellor who habitually left his duties to a deputy and yet was suffered to retain his title and his profits. As to (3), it would certainly appear that since justiciars, sheriffs, and castellans were all appointed in the same manner and on the same terms—by letters patent, to hold office during the King’s pleasure—the greater officers must have been irremoveable during the minority, if the lesser ones were acknowledged to be so. For the reasons already given, this latter point seems to me not proven.
With regard to the castles a further question remains. Falkes de Bréauté in the “Complaint” which he addressed to the Pope in 1225, and which is preserved in the Barnwell Annals, speaking of the arrest of Peter de Maulay in 1221, says: “De qua captione non ante dictus nobilis evadere potuit quam ea castra quae sibi tam a domino Guala quam etiam a patre domini regis commissa fuerant restitueret, contra pristinum juramentum quod patri fecerat de non restituendis eisdem castris donec iste rex legitimae foret aetatis” (W. Cov., vol. II, p. 260). On this Mr. Turner (pt. I, p. 284) observes: “The castles, he says, were entrusted to Pierre as well by Guala as by King John. It would seem from this that although the castellans were not re-appointed on the King’s death by letters patent under the seal of the Earl Marshal, their castles were formally delivered to them by Guala. The statement is confirmed by a letter dated May 10th, 1220, from Pandulph, who succeeded Guala as legate, to Ralph de Neville the vice-chancellor, in which he asks him to send the form under which Guala delivered castles to their wardens (Shirley, Royal Letters, i. 117).” Pandulf’s words are these: “Item, formam sub qua dominus Gualo castra ad custodiendum tradebat nobis mittas, si ipsam habes, vel ab his qui sciunt diligenter inquiras, et quod inveneres nobis rescribas.”