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The Period of Legislation, 1259—1285

The post-1259 increase in the numbers of known actions of account was probably a function of new legislation. The action is thus caught up in that extended period of legal and administrative change arising from the conciliar government of 1258—61. The action was given a new writ form in the 1259 ‘new provisions of the Barons’ (cap. 19), extant from 1260. The legislation was reissued in 1263—4 (cap. 17); re-endorsed in the Statute of Marlborough in 1267 (cap. 23); and lent a further twist through additional sanctions against bailiffs granted by the Statute of Westminster II in 1285 (cap. 11).[1]

The provisions read out in Westminster Hall on 24 October 1259 followed some eight months of debate, negotiation, drafting, and redrafting between reformist and royalist barons, ‘bachelors’, and the King. They had increasingly stressed the need for baronial as much as regal reform.[2] Cap. 19 strengthened the legal recourses available to those saddled with unaccountable bailiffs:

It has also been provided that, if bailiffs who are obliged to render account to their lords flee from them and do not have lands and tenements by which they may be distrained, then they are to be attached by their bodies, so that the sheriffs in whose bailiwicks they are found are to make them come to render their account.[3]

Within the wider drafting process the issue of bailiffs’ accountability to their lords first appeared in the draft immediately preceding the final provisions, that is the French draft produced for the Michaelmas 1259 parliament.[4] It did not, significantly, figure in the reform-focused ‘Petition of the Barons’, drafted for the June 1258 parliament.127

The Close Rolls for 1260 duly provide the corresponding text for a ‘new writ of account’, its name (monstravit de compoto) taken as usual from the opening words.

The king to the better men and sheriffs of London, greetings. Master Michael rector of Ockendon has shown to us [monstravit nobis] that since Godfrey of Fornham who recently stood [extiterit] as his bailiff in Ockendon, having care and administration for all of his things and goods, the same Godfrey with his account not discharged, seeks through subterfuge [subterfugia] to hide in your bailiwick so that he cannot be found, or distrained to render the said account. And because the provision is, by the common counsel of the whole of our kingdom, that if bailiffs who are liable to render account to their masters abscond [se subtraxerint] and they lack lands or tenements through which they can be distrained, they are to be attached by their bodies, so that the sheriffs in whose bailiwicks they are found can make them come to render their account— so we order you that if the said master Michael gives you security that the complaint should be taken forward [fecerit te securum de clamore suoprosequendo], then you are to ensure the said Godfrey is attached, so that you have his body before you in your court of our City of London for the rendering to the said Michael his aforesaid account, as the same Michael can reasonably [racionabiliter] show that [Godfrey] ought to render [it] to him, so that we will not hear this plaint a second time. Witness.[5]

The addition of summary imprisonment is a significant legal tightening. The Mirror of Justices (1285—9) thought the initial imprisonment sanction should be restricted to a mere summons.[6] Imprisonment as an initial step in the case seems only to have been commonly used for homicide.[7] Another striking aspect is the requirement of monstravit that bailiffs be landless. The second Statute of Westminster would take this further in 1285 and in cap. 11 add instant outlawry to the sanctions available against landless, absconding bailiffs.[8] The Mirror complained this should be reserved for ‘mortal sins’ only.[9] This was the law that Edward I alluded to in 1291 when he wrote of ‘the complete form of the statute provided for by the common counsel of our kingdom’ in the ex parte writ regarding John de Valle quoted earlier.

Monstravit de compoto was actively pro-landlord. It presumed in the first place that an account is really due.[10] It summarily empowered a lord’s auditors, putting answerable bailiffs at a proportionate disadvantage (‘so the evil of auditors goes unpunished’).[11] The legislation’s revealed preferences were clear to the Mirror of Justices, which inveighed against landlords’ auditors in its section De Abusions (again, the Mirror of Justices was one of Andrew Horn’s books):

  • 86. Abuse it is that auditors are given by the lords to hear accounts, without the assent of bailiffs.
  • 87. Abuse it is that bailiffs cannot recover a thing in damages from criminous auditors.
  • 88. Abuse it is that regard is given to status, since by such law [i.e. actions of account] bailiffs are not allowed to recover debts against their lords, as contrariwise lords can do of them.[12]

Later along the same lines,

123. Abuse it is of the writ of account of monstravit whereby someone can imprison another [i.e. a bailiff] wrongly.[13]

The answer to ‘Who, whom?’ is clear: ‘Lords, bailiffs’.

It is striking indeed in these complaints that the auditor himself has become an actor in the action. The Mirror of Justices at points leaves it ambiguous whether the lord or auditor unfairly imprisons the bailiff (another example of the head not knowing what the right hand does?). The author clearly has more sympathy for bailiffs than landlords, and so is a useful guide to the aspects of the law that some saw as inequitable.[14] Such complaints of course return us to John de Valle’s own case: his complaints against the auditors who have disallowed his reasonable expenses, imprisoned him unfairly, and left him liable for transactions undertaken for his master and mistress (or so he said).

Cap. 19 of the 1259 Provisions sits rather oddly amidst some of the other provisions of Westminster addressing lords' accountabilities to communities. In particular the Provisions’ so-called ‘administrative and political resolutions’ include the important commitment that the justices in eyre ‘should also inquire into the bailiffs of the rich men of the land, and into the rich men themselves’.[15]

There had been much agitation about unaccountable, seigneurial bailiffs—but from communities’, not lords’ perspectives. The ‘administrative’ provision tallies directly with the February—March 1259 ‘Ordinance of the Magnates’, which records the barons’ explicitly reciprocal commitment to restrain and correct their bailiffs, in so far as Henry III would do so for his officers.[16] The principle of seigneurial bailiffs’ accountability had indeed been floated the previous summer at Oxford.[17]

(Valence’s steward, William de Bussey experienced it in practice at the end of 1258.)[18] Matthew Paris gives the text of the 1258 inquisition ordered into a whole range of bailiffs and sheriffs—both regal and seigneurial.[19] But the pre-1259 context of actions of account—like cap. 19 in 1259—is one of deficient service or breach of private trust, not one of wider equity or justice. Still one can imagine it being presented otherwise: ‘If you want me to stop my bailiffs biting, give me stronger legal leashes to call them to heel.’ It is not hard to see cap. 19 of the Provisions being presented by its baronial supporters as a contribution to this general reform of local government—whatever the self-interested ends it happily also provided its baronial advocates. Indeed it looks exactly like the sort of thing Agnes’s father William de Valence would have endorsed (although he had fled England in July 1258).

Did barons—or ‘land-lords’ more generally—need monstravit de compoto? Brand argues the clause could have been a proportionate response to an actual problem. He is equally open to the possibility that cap. 19 was not a response to ‘a widespread problem but was prompted by just one or two recent instances of landless bailiffs absconding without rendering an account and that it was those instances alone which prompted this general legislation’.[20] The cases Brand himself has unearthed for the 1270s might argue in favour of some ‘need’ in that period.[21] At least they argue in favour of the enhanced legislation’s usefulness to greater land-lords.[22] It is possible too that the subset of extant cases at higher courts covers a greater number of cases at county courts than curia regis roll references enable us to see.[23] The latter are conceivably the subset of the most problematic cases that plaintiffs brought to the king’s court. Cap. 11 of the Statute of Westminster II itself may offer further proof that monstravit de compoto was no accident: why, after all, compound a gratuitous legal penalty by extending it still further?

Bracton, the mid-thirteenth-century legal treatise, states ‘there ought to be a remedy for every wrong; if some new wrong be perpetrated, then a new writ may be invented to meet it’.[24] Maitland’s version of the same principle has been quoted—‘legal ideas never reach very far beyond practical needs’.[25] These axioms, it is true, imply that legal innovation is usually a proportionate response to o bjectively demonstrable needs. That argument is wrong absolutely speaking (extraordinary rendition and Bleak House’s Chancery would be inconceivable). The analysis above has argued for the existence of practices, norms, and rules for holding bailiffs to account some time before the 1259 legislation was passed. Perhaps this implies ‘needs must’—at least up to a point. Perhaps monstravit de compoto was the timely and reasonable response to an acute or worsened problem. But if the 1259 legislation is not accidental (nor, by extension, that of 1285), what could such legislation be a function of, and what might it signify?

  • [1] Brand, Kings, Barons and Justices, discussion at 65—6, 312—33, 402—3, texts in appendices I—IIIfor Provisions of Westminster, and the Statute of Marlborough; SR, i. 80—1 (cap. 11) for WestminsterII.
  • [2] Brand, Kings, Barons and Justices, 15—41; Prestwich, Plantagenet England, 104—9.
  • [3] Text and translation from Brand, Kings, Barons and Justices, 424—5; also DBM #11 at 146.Brevia Placitata includes a note on a post-1267 version of the older writ noting that landless bailiffsmay be physically held by the sheriff to force an account (Brevia Placitata, cxxxviii—cxxxix, 23 n. 4).
  • [4] Brand, Kings, Barons and Justices, 34—7. 127 DBM#3.
  • [5] CR 1259—61, 162. Discussion: Brand, Kings, Barons and Justices, 117—18.
  • [6] Mirror of Justices, ed. William Joseph Whittaker, intr. Frederic William Maitland, SS 7 (London,
  • [7] 1895), 184, apropos of the provision in cap. 23 of the Statute of Marlborough. On dating, xxiv. Thiswas Maitland’s dating; however a passage relating directly to the action of account (76), states thatan absconding bailiff cannot be outlawed. This portion of the treatise therefore seems to predate the1285 Statute of Westminster II cap. 11. The view is now that Andrew Horn did not write the Mirror(Jeremy I. Catto, ‘Andrew Horn: Law and History in Fourteenth Century England’, in R. H. C. Davisand J. M. Wallace-Hadrill (eds.), with R. J. A. I. Catto and M. H. Keen, The Writing of History in theMiddle Ages: Essays Presented to Richard William Southern (Oxford, 1981), 373—4). See now on theMirror, Lachaud, Ethique du pouvoir, 635—62.
  • [8] 130 Brand, Kings, Barons and Justices, 66. 131 SR, i. 80—1.
  • [9] Mirror of Justices, 192—3, apropos of Westminster II cap. 11.
  • [10] Brand, Kings, Barons and Justices, 35. Provision was later made for cases where the action wasobtained under false pretences. This seems to be the problem behind the 1230—2 action of accountnoted in Bractons Note Book. Here Theobald Hautein alleges John of Preston owes him an accountfor his bailiffship of Mereflet (Yorks). Preston retorts that he owes no such thing since he did nothold land of Hautein but of Adam of Mereflet to whom he accounted and was quit. It was Adam,says Preston, who was Hauteins bailiff and liable to him. Case: CRR 1230-1232, 189 (#930), 306(#1442), 430 (#2004); also Bractons Note Book, ed. F. W. Maitland, 3 vols. (London, 1887), ii. 668#859. Comment: Caenegem, Royal Writs in England, 345 n. 4 (‘a much noticed action of account’);Pollock and Maitland, History of English Law, ii. 221, giving the case as the first extant example of theaction of account. The issue concerns who is accountable to whom where there are intermediate anddelegated liabilities.
  • [11] Mirror of Justices, 193 on Statute of Westminster II cap. 11. The latter may be an attempt tofine-tune the legislation and regularize auditors’ behaviour (as well as increasing the penalties onabsconding bailiffs), since it offers bailiffs a recourse for auditors who have unjustly ‘oppressed [thebailiff] with goods received which he did not receive, or by refusing him expenses or reasonable costs’,SR, i. 80, ‘conqueratur quod auditores compoti ipsum injuste gravaverunt, onerando de receptis quenon recepit, vel non allocando expensas aut liberaciones racionabiles. . .’. Paul Brand argues that mon-stravit did provide some security for bailiffs (personal communication). See also Plucknett, Mediaeval Bailiff, 26—7.
  • [12] Mirror of Justices, 164—5. 2 Mirror of Justices, 172.
  • [13] 137 Maitland detected some ‘reactionary’ as well as ‘curious leanings towards liberty and equality’
  • [14] in the author as well as a persistent critique of royal agents and justices (Mirror of Justices, respectivelyxliii, xxxix, xlvi—xlix).
  • [15] DBM #12 cap. 6 at 150, ‘Ausi enquergent des baillifs as riches homes de la terre, e des richeshomes memes’. The provisions were not proclaimed at the county courts. For a reconstruction ofthe drafting process see Brand, Kings, Barons and Justices, chs. 1—3, and on this point 38—41; R.F. Treharne, The Baronial Plan of Reform, 1258—1263, rev. edn. (Manchester, 1971), 164—9, on thispoint, 187 n. 1.
  • [16] DBM #10 at 132. For the November 1259 implementation, again making clear that seigneurial and regnal agents are under review #13 at 160—2 (caps. 6—8). Henry cancelled the eyre on 5 June1260 (#27).
  • [17] 140 DBM #5 (‘Provisions of Oxford), 98, providing for four ‘discreti et legales’ knights who would‘conueniant ad audiendum omnes querelas de quibuscumque transgressionibus et inuiriis quib-scumque personis illatis per uicecomites, balliuos, seu quoscumque alios, et ad faciendum tachiamentaque ad dictas querelas pertinent’, my stress.
  • [18] Hershey, ‘Rise and Fall of William de Bussey’, 113—18.
  • [19] Chronica majora vi. 397—400, e.g. opening clause and 399, ‘de vicecomitibus [. . .] et de omnibus ballivis quicunque fuerint’.
  • [20] Brand, Kings, Barons and Justices, 66. Legislation did develop like this, cf. Prestwich, EdwardI, 270.
  • [21] A problem in deciding this will always be that land-lords, like bankers, routinely feel that theregulatory regime under which they operate is insufficiently supportive.
  • [22] Examples: Brand, Kings, Barons and Justices, 314. It should be remembered that lesser landlordscontinued to have recourse to the old action of account.
  • [23] 146 Brand, Kings, Barons and Justices, 65; Early Registers of Writs, xlii; Plucknett, Mediaeval Bailiff,23; Brevia Placitata, lvii—lix, lxiv—lxv.
  • [24] Cited in Early Registers of Writs, xii, but I cannot find the quote in Bracton at fo. 413b as cited.The closest match I do find on this folio is: ‘quia tot erunt formulae brevium quot sunt genera actio-num, quia non potest quis sine brevi agere’. Bracton on the Laws and Customs of England, ed. GeorgeE. Woodbine, rev. S. E. Thorne, 4 vols. (Cambridge, Mass., 1977), iv. 286. See also fo. 111b.
  • [25] 148 Frederic William Maitland, Township and Borough (Cambridge, 1898), 27.
 
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