¹ The case forms a documentary preface to Sir John Borough's own commentary on Thomas of Woodstock's regulations for judicial combat. The transcript is to be found in the State Papers – a seventeenth century collection compiled by Charles II's secretary of state, Sir Joseph Williamson (Public Record Office, State Papers 9 (Miscellaneous), 10). The original from which Sir John made the copy can no longer be traced, but was catalogued in the seventeenth century under the title of ‘A rolle of the proceedings before the Constable and Marshall anno 1. H: 4. in case of treason betweene the lord Morley and the Earle of Salisbury’ (A Catalogue of the Library of Sir Edward Coke, ed. Hassall, W. O. (Yale & London, 1950), p.25Google Scholar, no. 323; we are grateful to Dr Nigel Ramsay for this reference). A second transcript of the case survives in the British Library (Additional MS. 35821) which was purchased in 1730 in an auction of Peter Le Neve's books. This copy, however, is less accurate than the one reproduced here: the date of the privy seal letters, for instance, wavers between 9, 10 & 11 November; the Duke of York (d'Euerwyk) is on occasion mistaken for a Duke of Warwick; and a number of words are carelessly anglicized, e.g. ‘adversary’ for ‘adversaire’, ‘judges’ for ‘juges’. We have not attempted a full collation of the two texts, but have compared them and have used the BL manuscript in one or two places (which we have noted) to supply missing words or letters in Borough's text.

We would like to give particular thanks to Dr Lisa Jefferson for her very generous help. Her expertise in the Anglo-Norman of the period has been invaluable in the preparation of this text. Not only has Dr Jefferson corrected many faults in our original transcript, but we have also benefitted from her advice on a great number of points of editorial finesse. In short, she has brought a much needed dose of professionalism to our often erratic tentatives at editing this MS.

² We know something of the proceedings in the case of Scrope vs. Keighley (1401) from a letter of Henry Percy as Constable, based on a careful scrutiny of ‘tous les actes … et toutz les processes devers nostre Registre du Court de Chevalrie’ (BL Add. MS. 9021, f. 123). A transcript of the sentence passed on Henry Boynton in 1405 is similarly based on the record in the Registers of the Court (Keen, M. H., ‘Treason Trials under the Laws of Arms’, Transactions of the Royal Historical Society, 5th series xii (1962), 85).CrossRefGoogle Scholar

³ For this case, we have relied upon the accounts given in Howell, 's State Trials vol iii (London, 1816)Google Scholar, cols. 483–519.

⁴ Ibid., cols. 487–9, 503.

⁵ Ibid., col. 495.

⁶ Ibid. There had been no permanent Constable of England since the execution of Edward Stafford, Duke of Buckingham, in 1521, ‘the authority and charge, both in war and peace, being deemed too ample for a subject’. The Earl of Lindsay was appointed pro hac vice for the duration of the case.

⁷ Ibid., col. 487.

⁸ Keen, , ‘The Jurisdiction and Origins of the Constable's Court’, War and Government in the Middle Ages ed. J. Gillingham & J.C. Holt (1985).Google Scholar

⁹ Keen, , The Laws of War (1965), pp.11–22.Google Scholar

¹⁰ Idem, ‘The Jurisdiction and Origins of the Constable's Court’, p.168.Google Scholar

¹¹ Farendon, who had served as Marshal of the army in Bishop Despenser's crusade of 1383, was active in numerous Court of Chivalry cases, such as Copyn vs. Snoke and Saxlingham, and Gerard vs. Chamberlain (CPR 1391–6, 42, 68 & 340Google Scholar). Fulthorpe deputed for the Constable in Morley vs. Montagu in 1399. For his rôle in the judgment and execution of Archbishop Scrape, he was condemned, according to a popular tradition, to wander the streets of York for eternity, a leper as white as snow (Harcourt, L. W. Vernon, His Grace the Steward and Trial of Peers (1907), p.375).Google Scholar

¹² PRO, SP 9 (Miscellaneous), 10, fos. 6r–6v.

¹³ Ibid., f. 7r.

¹⁴ Olivier de la Marche, for example, in advising Duke Philip the Handsome on who should be permitted to fight a judicial duel equated this right with noble status itself: ‘And so, my lord, it is needful both in this regard and others that you should know who they are whom you should hold for gentlemen (gentils hommes), who for nobles, and who for non-nobles’ (Cited by Keen in Chivalry (New Haven/London, 1984), pp. 149–50).Google Scholar

¹⁵ Rotuli Parliamentorum, ed J. Strachey et al. (1767–1777), iii, 65.Google Scholar

¹⁶ For Gloucester's ordinances, see The Black Book of the Admiralty, ed. T. Twiss (Rolls Series, 55, 1871), i, 301–30.Google Scholar

¹⁷ For an analysis of this case and duel, see Bellamy, J., ‘Sir John de Annesley and the Chandos inheritance’, Nottingham Mediaeval Studies, 10 (1966).Google Scholar

¹⁸ Rot. Parl., iii, 382.Google Scholar

¹⁹ BL Add. MS. 9021, fos. 123–5.

²⁰ Walsingham, T., Historia Anglicana, ed. W. Hardy (Rolls Series, 1868), ii, 118.Google Scholar

²¹ Cited by Harcourt, Vernon, His Grace the Steward, p.367.Google Scholar

²² Foedera, viii, 538–40Google Scholar for a description of the combat.

²³ SP 9/10, fos. 3v–4r.

²⁴ Goodman, A., The Loyal Conspiracy: The Lords Appellant under Richard II (1971), pp.38, 75, 101–2.Google Scholar

²⁵ The Complete Peerage of England, ix, 216.Google Scholar

²⁶ Goodman, , The Loyal Conspiracy, p.102.Google Scholar

²⁷ PRO C47 (Chancery Miscellanea), 6/1.

²⁸ Complete Peerage, xi. 391.Google Scholar

²⁹ McFarlane, K. B., Lancastrian Kings and Lollard Knights (Oxford, 1972), p.168.Google Scholar

³⁰ Davies, R. R., ‘Richard II and the Principality of Chester, 1397–99’, in The Reign of Richard II, ed. F. R. H. du Boulay & C. M. Barron (1971), p. 266.Google Scholar

³¹ Laidlaw, J. C., ‘Henry IV, Christine de Pisan and the Earl of Salisbury’, French Studies, 36 (1982).CrossRefGoogle Scholar

³² Complete Peerage, xi. 391.Google Scholar

³³ Ibid., p.392.

³⁴ SP 9/10, fos. 3r–6v.

³⁵ Ibid., fos. 7r–8r.

³⁶ Allmand, C. T., The Hundred Years War: England & France at War c.1300–c.1450 (Cambridge, 1988), p.147.CrossRefGoogle Scholar

³⁷ Barron, C. M., ‘The Tyranny of Richard II’, Bulletin of the Institute of Historical Research, 41 (1968), i.CrossRefGoogle Scholar

³⁸ Rot. Parl., iii, 449–51.Google Scholar

³⁹ Ibid.

⁴⁰ For example, Aumale similarly denied complicity in both the murder of Gloucester and the formulation of the 1397 bill of appeal. In the case of the latter he recounted how he had been ordered by King Richard in person ‘de faire cel jour une chose pur qelle chose a faire il fuist pluis dolent que unques ne fust’. The Duke of Surrey asked the new King to take into account his youth and ‘la petite reputation de qi il fuist’ at the time of the appeal. On the occasion of Henry's exile, Surrey claimed that he had been commanded ‘de venir au dit nadgairs Roy sur le scaffold et adonqes la dite Ordinance luy fuist premierment monstré, de qoi il fuist dolent en son coer’. The Marquis of Dorset recalled his own circumstances when he first was made aware of the bill of appeal: ‘Et quant le Markys fuist sys a maunger en la sale deins la chastell de Nottyngham, le dit nadgairs Roy…envoia a dit Markys un home que luy commanda de par le roy de lever et aler hors del porte de dit chastell. Et il demanda, Pur quy? Et il luy disoit, que a son venue il saveroit, et dit ferroit corne ses compaignons feraient’ (Rot. Parl., iii, 449–51).Google Scholar

⁴¹ Harcourt, Vernon, His Grace the Steward, pp. 370–1.Google Scholar

⁴² ‘Existebat tune in castro eodem (Bristol) dominus Willelmus Scrope comes Wilts-chiriae et thesaurarius Angliae, dominus Henricus Grene et dominus Johannes Busch locutor ultimi parliamenti milites, qui fuerunt maxime consiliarii dicti regis Ricardi ad mala praemissa perpetranda. Tandem capti sunt et inviti ducti extra castrum in campum ad ducem Lancastriae. Et primo quidem arrestati sunt, deinde in crastino coram judicibus, viz. constubalario et marescallo, judicio sistuntur. Et de proditime et mala gubernatione regis et regni convicti, dampnati et decollati sunt’ (Quoted by Harcourt, Vernon, His Grace the Steward, p.368 n.1).Google Scholar

⁴³ Lehoux, F., Jean de France, duc de Berri: sa vie, son action politique (1340–1416) (Paris, 1966), ii, 406–7.Google Scholar

⁴⁴ Froissart, J., Chroniques, ed. de Lettenhove, K. (Brussels, 1867–1872), xvi, 141–4.Google Scholar

⁴⁵ Creton, J., ‘A Metrical History of the Deposition of Richard II’, ed J. Webb, Archaeologia, 20 (1824)Google Scholar. The historical validity of Creton's account has been upheld by Palmer, J. J. N. in ‘The Authorship, Date and Historical Value of the French Chronicles of the Lancastrian Revolution’, Bulletin of the John Rylands Library, 61 (1978–1979).CrossRefGoogle Scholar

⁴⁶ Creton, , p.60.Google Scholar

⁴⁷ Barber, M., ‘John Norbury (c.1350–1414): an Esquire of Henry IV’, English Historical Review, 68 (1953).Google Scholar

⁴⁸ McFarlane, , The Nobility of Later Medieval England (Oxford, 1973), pp.145–6Google Scholar; John, T., ‘Sir Thomas Erpingharn, East Anglian Society and the Dynastic Revolution of 1399’, Norfolk Archaeology, 35 (1970).Google Scholar

⁴⁹ Rot. Parl., iii, 449–51.Google Scholar

⁵⁰ de Wavrin, J., Recueil des croniques et anchiames istories de la Grant Bretagne a present nomme Engleterre, 1399–1422, 1422–31, ed. W. & E. L. C. P. Hardy (Rolls Series, 1864–1891), ii, 244.Google Scholar

⁵¹ Keen, , ‘Treason Trials’, pp.90–1.Google Scholar

⁵² SP 9/10 fos. 18v–20r.

⁵³ Ibid., fos. 18v–20r.

⁵⁴ Ibid., f. 17r–v.

⁵⁵ Ibid., f. 19r.

⁵⁶ Ibid., fos. 22v–24v.

⁵⁷ CPR 1396–99, 172.Google Scholar

⁵⁸ A petition of the Earl of Salisbury (28 November 1385), asked for the enrolment of certain records pertaining to the case, particularly the agreement of both parties two years earlier to submit themselves to the jurisdiction of the Court of Chivalry, and referred to a decision taken in Parliament to settle the dispute by the law of arms (Foedera, viii, 67–8).Google Scholar

⁵⁹ BL Cotton MS. Titus C1, fo. 158r (we are grateful to Dr Robert Ireland for his help with this document); PRO C49 (Parliament & Council Proceedings), 47/21.

⁶⁰ BL Cotton MS. Titus C1, fo. 158r.

⁶¹ CCR, 1396–99, 210.Google Scholar

⁶² PRO C137 (Inquisitions Miscellaneous), 75, under the return for Hertfordshire.

⁶³ Ibid.

⁶⁴ PRO C76, m. 12.

⁶⁵ McFarlane, , Lancastrian Kings and Lollard Knights, p.211.Google Scholar

⁶⁶ Ibid.

⁶⁷ SP 9/10, fos. 25Av–32r.

⁶⁸ Ibid., fos. 32v–33r

⁶⁹ Ibid., fos. 33v–35r.

⁷⁰ Ibid., fos. 36v–37r.

⁷¹ Wylie, J. H., A History of England under Henry IV, (1884), i. 92–3.Google Scholar

⁷² Ibid., p.100.

⁷³ Chronicle of Adam of Usk, ed. Thompson, E. M. (Oxford, 1905), p.205Google Scholar. To have been able to make this point, Morley must have turned up on the appointed day at Newcastle despite the impossibility of meeting his adversary. In 1445, the Prior of Kilmaine appeared fully armed at Smithfield to demonstrate the justness of his cause even though his duel with the Earl of Ormonde had been annulled (‘Gregory's Chronicle’, in The Historical Collections of a Citizen of London, ed. J. Gairdner (Camden Soc., 1876), pp.186–7).Google Scholar

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⁷⁵ Devon, F., Issues of the Exchequer (1837), pp. 275–6.Google Scholar

⁷⁶ Proceedings and Ordinances of the Pray Council of England, ed. N. H. Nicolas (Record Commission, 1834–7), vi 57–9.Google Scholar

⁷⁷ Foedera, viii, 540.Google Scholar

⁷⁸ Stow, J., The Survey of London, ed. Wheatley, H. B. (London, 1929), p.341 (Ward of Faringdon extra).Google Scholar

⁷⁹ The Essential Portions of Nicholas Upton's De Studio Militari, ed. F. P. Barnard (1931), p.13.Google Scholar

⁸⁰ Huizinga, J., The Waning of the Middle Ages (English trans., 1927), p.93.Google Scholar

⁸¹ Ibid., p.95.

⁸² SP 9/10, f.36v.

⁸³ Morgan, D. A. L., ‘From a Death to a View: Louis Robessart, Johan Huizinga, and the Political Significance of Chivalry’, in Chivalry in the Renaissance, ed. S. Anglo (1991), pp. 104–5.Google Scholar

⁸⁴ The edition below follows the normal conventions for the expansion of abbreviations, the addition of the acute and cedilla accents, the use of apostrophe, the differentiation of u/v and i/j according to pronunciation, and the modification or addition of punctuation. A few problems arise from the fact that this is a seventeenth-century transcript of a document of c.14OO (or perhaps even a copy of a copy): the scribe's use of the word ‘per’, for example, is most probably the result of his expansion of the abbreviated ‘p’ in his exemplar, rather than an exact rendering of the original. Both ‘per’ and ‘par’ do appear unabbreviated in the text, the former more frequently; but a problem arises with the words ‘perole’ and ‘Perlement’. These are quite clearly so spelt in the text, but we have corrected to ‘parole’ and ‘Parlement’ as this was almost certainly the original reading and is the consistent reading of the other transcript of the text (BL Add. MS. 35821). These cases, however, are very few, and in general the claim made that this ‘a true copy’ can be accepted, the language having all the appearance of Anglo-French of that period. The text is written carefully and clearly; the scribe has occasionally corrected himself in the course of his writing (these instances have not been noted as none have any significance); very occasionally he has missed a word such as ‘et’, and if it has been felt necessary to amend, then any editorial addition is indicated by the use of square brackets, and any rejected reading has been placed in the notes. Those familiar with the Anglo-French language of the time will meet here all the usual ways in which this language differs from that of continental France, and those unfamiliar with it should perhaps be warned not to be surprised if the grammatical rules of the latter are not followed.

⁸⁵ That is, in first year of the reign of King Henry IV.

⁸⁶ We have expanded ‘Sar’ in the text to ‘Sarum’ despite the fact that ‘Saresbery’ does appear on f.23r. ‘Sarum’ is the more usual form of the title, and we have therefore preferred to follow Rotuli Parliamentorum and BL Add. MS. 35821 in expanding thus.

⁸⁷ Sir Edward Hastings would use the same formula in challenging Lord Grey in 1408: ‘Thow lyest falsely, lewed knight, and yt I am ready to prove with my bodye against thy body, so therefore here is my glove to wedde and I ask day and place’ (Quoted by R.I. Jack in ‘Entail & Descent: The Hastings Inheritance 1370–1436’, Bulletin of the Institute of Historical Research, 38 (1965), 15).Google Scholar

⁸⁸ Salisbury was insisting upon a particular point of procedure; that Morley, as appellant should have declared that he was prepared to face the same punishment as the defendant – that is execution as a traitor – should he be vanquished in the combat, and his appeal thus prove to be false.

⁸⁹ Here and for the rest of this bill, the text clearly reads ‘coment’. But we have altered this to ‘conveint’, following BL Add. MS. 35821, since the sense demands this reading which is certainly the correct and original one.

⁹⁰ Morley's reluctance to see the defendant given his ‘declaration’ is reminiscent of the case of William Lord Latimer, who, during the Good Parliament of 1376, had similarly demanded a copy of the charges against him. This was refused by the Chancellor, Wykeham. Ironically Wykeham's reply was flung back at him in the following Parliament after he had asked to see the charges against him in writing: The Anonimalle Chronicle, 1333–1381, ed. Galbraith, V. H. (Manchester, 1927), pp.93, 98–9Google Scholar; Holmes, G. A., The Good Parliament (1975), p.179Google Scholar (both references which we owe to Nigel Saul).

⁹¹ Here Borough missed out a phrase, which we have supplied (in brackets) from BL Add. MS. 35821.

⁹² This procedure was followed in the Rea vs. Ramsey case, the Constable advocating judicial combat ‘In the name of God the Father the Son and the Holy-Ghost, the Holy and most Blessed Trinity, who is one, and the God and Judge of battels; we, as his vicegerents… do admit you to a Duel…’, whilst similarly twisting the gauntlets together (State Trials, col.507).

⁹³ The usual manner of beginning combat, see Gloucester's ordinances in the Black Book of the Admiralty (p.325). The full formula appears to have been ‘Lessez les aller, lessez les aller, lessez les aller et faire lour devoir’ (Foedera, viii, 538).Google Scholar

⁹⁴ In 1631 Lord Rea copied almost word for word the details of Lord Morley's petition. Thus he requested that the court should allow him ‘a seat or pavilion, or other coverture to rest himself; that he might have bread, wine, or other drink, iron-nails, hammer, file, scissars, bodkin, needle and thread, armorer and tailor with their instruments, and other necessaries to aid and serve him in and about his armour, weapons, apparel and furniture, as need required’. Similarly, Lord Rea also petitioned that ‘he might have liberty to make trial of his arms and weapons within the field, to put them off, and to put them on, and change them at his pleasure; to nail, fasten, or loose his arms and apparel, and other things; to eat and drink, and to do all other his necessities’. Morley's rather typical request that the defendant should not be granted a copy of his protestation was similarly repeated (State Trials, col. 510).