The Magna Carta Project

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Original Latin

Johannes Dei gratia rex Angliae, dominus Hyberniae, dux Normanniae et Aquitanniae, comes Andegaviae, archiepiscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis, forestariis, vicecomitibus, praepositis, ministris et omnibus ballivis et fidelibus suis salutem. Sciatis nos intuitu Dei et pro salute animae nostrae et omnium antecessorum et haredum nostrorum, ad honorem Dei et exaltationem sanctae ecclesiae, et emendationem regni nostri, per consilium venerabilium patrum nostrorum, Stephani Cantuariensis archiepiscopi totius Angliae primatis et sanctae Romanae ecclesiae cardinalis, Henrici Dublinensis archiepiscopi, Willelmi Londoniensis, Petri Wintoniensis, Joscelini Bathoniensis et Glastoniensis, Hugoni Lincolniensis, Walteri Wygornensis, Willelmi Coventrensis, et Benedicti Roffensis episcoporum; magistri Pandulfi domini papae subdiaconi et familiaris, fratris Eymerici magistri militiae Templi in Anglia; et nobilium virorum Willelmi Mariscalli comitis Penbrociae, Willelmi comitis Saresberiae, Willelmi comitis Warenniae, Willelmi comitis Arundelliae, Alani de Galweya constabularii Scottiae, Warini filii Geroldi, Petri filii Hereberti, Huberti de Burgo senescalli Pictaviae, Hugonis de Nevilla, Mathei filii Hereberti, Thomae Basset, Alani Basset, Philippo de Albiniaco, Roberti de Roppel, Johannis Mariscalli, Johannis filii Hugonis et aliorum fidelium nostrorum:

John by God’s grace king of England, lord of Ireland, duke of Normandy and Aquitaine, count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, reeves, officers and all bailiffs and subjects, greeting. Know that for the sake of God and for the salvation of our soul and the souls of all our forebears and heirs, to the honour of God and the advancement of holy church, and the reform of our kingdom, by the counsel of our venerable fathers Stephen, archbishop of Canterbury, primate of all England and cardinal of the holy Roman church; Henry, archbishop of Dublin; Bishops William of London, Peter of Winchester, Joscelin of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry and Benedict of Rochester; Master Pandulf, subdeacon and confidant of the lord pope, Brother Eymeric, master of the Knights Templar in England; and the noble men William Marshal, earl of Pembroke, William, earl of Salisbury, William, earl of Warenne, William, earl of Arundel, Alan of Galloway, constable of Scotland, Warin fitzGerold, Peter fitzHerbert, Hubert de Burgh, seneschal of Poitou, Hugh de Neville, Matthew fitzHerbert, Thomas Basset, Alan Basset, Philip d’Aubigny, Robert of Ropsley, John Marshal, John fitzHugh, and others of our subjects:

Audio commentary

Referenced in

John grants freedom of election (The Itinerary of King John)


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Original Latin

I

In primis concessisse Deo et hac praesenti carta nostra confirmasse, pro nobis et haeredibus nostris in perpetuum, quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illaesas; et its volumus observari; quod apparet ex eo quod libertatem electionum, quae maxima et magis necessaria reputatur ecclesiae Anglicanae, mera et spontanea voluntate, ante discordiam inter nos et barones nostros motam, concessimus et carta nostra confirmavimus, et eam obtinuimus a domino papa Innocentio tertio confirmari; quam et nos observabimus et ab haeredibus nostris in perpetuum bona fide volumus observari. Concessimus etiam omnibus liberis hominibus regni nostri, pro nobis et haeredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas, eis et haeredibus suis, de nobis et haeredibus nostris.

1

We have first of all granted to God, and by this our present charter confirmed, for ourselves and our heirs in perpetuity, that the English Church is to be free, and to have its full rights and its liberties intact, and we wish this to be observed accordingly, as may appear from our having of our true and unconstrained volition, before discord arose between us and our barons, granted, and by our charter confirmed, the freedom of elections which is deemed to be the English Church’s very greatest want, and obtained its confirmation by the lord pope Innocent III; which we will ourselves observe and wish to be observed by our heirs in good faith in perpetuity. And we have also granted to all the free men of our kingdom, for ourselves and our heirs in perpetuity, all the following liberties, for them and their heirs to have and to hold of us and our heirs.

Audio commentary

Referenced in

Clause 60 (The 1215 Magna Carta)

Drama and jokes at Bury St Edmunds (The Itinerary of King John)


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Original Latin

II

Si quis comitum vel baronum nostrorum, sive aliorum tenentium de nobis in capite per servitium militare, mortuus fuerit, et cum decesserit haeres suus plenae aetatis fuerit et relevium debeat, habeat haereditatem suam per antiquum relevium; scilicet haeres vel haeredes de baronia comitis integra per centum libras; haeres vel haeredes baronis de baronia integra per centum libras; haeres vel haeredes militis de feodo militis integro per centum solidos ad plus; et qui minus debuerit minus det secundum antiquam consuetudinem feodorum.

2

If any of our earls or barons, or others holding in chief of us by knight service, shall die and his heir at his decease shall be of full age and owes a relief, he is to have his inheritance by the old relief: that is, for the heir or heirs of an earl £100 for the whole barony of the earl; the heir or heirs of a baron £100 for the whole barony; the heir or heirs of a knight 100 shillings at the most for a whole knight’s fee; and anyone owing less is to give less according to the ancient custom of fees.

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Original Latin

III

Si autem haeres alicujus talium fuerit infra aetatem et fuerit in custodia, cum ad aetatem pervenerit, habeat haereditatem suam sine relevio et sine fine.

3

If, however, the heir of any of the above shall be under age and in wardship, when he comes of age he is to have his inheritance without a relief and without a fine.

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Original Latin

IV

Custos terrae hujusmodi haeredis qui infra aetatem fuerit, non capiat de terra haeredis nisi rationabiles exitus et rationabiles consuetudines, et rationabilia servitia, et hoc sine destructione et vasto hominum vel rerum; et si nos commiserimus custodiam alicujus talis terrae vicecomiti vel alicui alii qui de exitibus illius nobis respondere debeat, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committatur duobus legalibus et discretis hominibus de feodo illo, qui de exitibus respondeant nobis vel ei cui eos assignaverimus; et si dederimus vel vendiderimus alicui custodiam alicujus talis terrae, et ille destructionem inde fecerit vel vastum, amittat ipsam custodiam, et tradatur duobus legalibus et discretis hominibus de feodo illo qui similiter nobis respondeant sicut praedictum est.

4

The guardian of the land of such an heir who is under age is not to take from the heir’s land more than reasonable issues, customs and services, and this without destruction and waste of either men or goods. And if we have committed the wardship of any such land to a sheriff or anyone else who ought to answer to us for its issues, and he shall inflict destruction or waste upon the wardship, we will take amends from him, and the land is to be entrusted to two law-abiding and discreet men of that fee, who are to answer for the issues to us or to the person to whom we have assigned them; and if we have given or sold to anyone the wardship of any such land, and he has destroyed or wasted it, he is to lose that wardship, which is to be entrusted to two law-abiding and discreet men of that fee, who likewise are to answer to us as aforesaid.

Audio commentary

Referenced in

John writes from La Rochelle, pleading for reinforcements (The Itinerary of King John)


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Original Latin

V

Custos autem, quamdiu custodiam terrae habuerit, sustentet domos, parcos, vivaria, stagna, molendina, et cetera at terram illam pertinentia, de exitibus terrae ejusdem; et reddat haeredi, cum ad plenam aetatem pervenerit, terram suam totam instauratam de carrucis et wainnagiis secumdum quod tempus wainnagii exiget et exitus terrae rationabiliter poterunt sustinere.

5

But as long as the guardian has the wardship of the land he is to maintain buildings, parks, fishponds, pools, mills and other things appertaining to the land, out of the issues of the same; and when the heir comes of age, he is to hand all his land over to him, stocked with ploughs and growing crops, according to what the agricultural season requires and the issues of the land can reasonably sustain.

Audio commentary


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Original Latin

VI

Haeredes maritentur absque disparagatione, ita tamen quod, antequam contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius haeredis.

6

Heirs are to be married without disparagement, provided that before the marriage is agreed upon the heir’s near kin are informed.

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Original Latin

VII

Vidua post mortem mariti sui statim et sine difficultate habeat maritagium et haereditatem suam, nec aliquid det pro dote sua, vel pro maritagio suo, vel haereditate sua quam haereditatem maritus suus et ipsa tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per quadraginta dies post mortem ipsius, infra quos assignetur ei dos sua.

7

After the death of her husband a widow is to have her marriage portion and inheritance immediately and without difficulty, nor is she to give anything for her dower, or for her marriage portion, or for the inheritance which she and her husband held on the day of his death, and she may remain in her husband’s house for forty days after his death, during which she is to be assigned her dower.

Audio commentary

Referenced in

John deals with Loretta de Braose and Isaac of Norwich (The Itinerary of King John)


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Original Latin

VIII

Nulla vidua distringatur ad se maritandum dum voluerit vivere sine marito, ita tamen quod securitatem faciat quod se non maritabit sine assensu nostro, si de nobis tenuerit, vel sine assensu domini sui de quo tenuerit, si de alio tenuerit.

8

No widow is to be distrained to marry while she wishes to live without a husband, as long as she gives security that she will not marry without our consent, if she holds of us, or without the consent of her lord of whom she holds, if she holds of someone else.

Referenced in

John writes from La Rochelle, pleading for reinforcements (The Itinerary of King John)

The regency government of Peter des Roches (The Itinerary of King John)

John grants freedom of election (The Itinerary of King John)

John deals with Loretta de Braose and Isaac of Norwich (The Itinerary of King John)


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Original Latin

IX

Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum reddendum; nec pleggii ipsius debitoris distringantur quamdiu ipse capitalis debitor sufficit ad solutionem debiti; et si capitalis debitor defecerit in solutione debiti, non habens unde solvat, pleggii respondeant de debito; et, si voluerint, habeant terras et redditus debitoris donec sit eis satisfactum de debito quod ante pro eo solverint, nisi capitalis debitor monstraverit se esse quietum inde versus eosdem pleggios.

9

Neither we nor our bailiffs are to seize any land or rent for any debt, as long as the debtor’s chattels suffice to pay the debt. Nor are the debtor’s pledges to be distrained as long as the principal debtor has enough to pay the debt. And if the principal debtor defaults on the payment of the debt, not having the means to pay it, the pledges are to answer for it, and if they wish they are to have the debtor’s lands and rents until they have been satisfied for the debt which they previously paid for him, unless the principal debtor shows that he is quit with regard to the pledges.

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Commentary for academic researchers

(a) Context and processes

Among the articles of the barons the equivalent of this clause is placed fifth, and there is no obvious reason for its occurring where it does.  But in Magna Carta the purpose of Clause 9 is made clearer by its being placed immediately before two other clauses relating to debt, in both cases those owed to Jews, and it also contains some small but possibly significant differences in content from Article 5.  The addition of a phrase laying down in so many words that a debtor’s sureties were to answer for what the principal defaulted upon may have been added only so as to make explicit what was implicit from the first, and the same may also have been true of the addition of rents to lands in Clause 9’s statement of what might, or might not, be seized in distraint, and of what a principal’s pledges could lawfully enter upon in order to obtain compensation for what they had paid for him.  But this second addition may also show an awareness on the part of those drafting the Charter that rents had relatively recently – between about 1187 and 1194 – come under the protection of novel disseisin,1 and had thus acquired a legal status which they seemingly did not have before, one that made it appropriate for them to be treated in the same way as free land when the holder of both was distrained for debt.

Clause 9 does not state in so many words that it is concerned with debts to the king, and its drafters may have had in mind the possible need to control the activities of royal officials collecting money owed to private individuals who had persuaded or paid the crown to put its coercive powers at their disposal.  But at the time Magna Carta was issued there can be little doubt that the clause’s main target was the debts owed to the king and the methods used by his agents to enforce their payment. Debt certainly featured prominently among the records of English government in the late twelfth and early thirteenth centuries, and it could weigh very heavily upon those affected by it, especially during John’s reign.  Earlier historians have commented on the relatively relaxed treatment allowed to crown debtors under Henry II,2 and this is given semi-official confirmation by the Dialogus, seemingly largely written in the 1180s, which meticulously hedged with restrictions the goods which could be taken in distraint for what was owed to the king, and made no clear provision for the seizure of lands except in the case of townspeople.  Chattels were to be taken in a prescribed order, with plough oxen being seized last, enough food being left to enable the debtor and his family to keep bodies and souls together, and a knight being allowed to keep the horse on which he normally rode; if the debtor’s personal goods were insufficient to pay the debt then those of his villeins could be taken as well, albeit subject to the same provisos, but when all these processes had been gone through, then except when the money was owed for scutage, `whether the required sum has been raised or not, our law (lex nostra) requires the sellers to desist ...’.3  Although Henry II and Richard I were both apt to disregard administrative protocols whenever they saw fit (a consideration which in 1215 probably helped to rule out a simple reversion to earlier practices, since these were always at the risk of being overruled on royal orders), forfeitures of lands for debt appear to have been rare before 1199.

(b) The Windsor ordinance

This began to change following the accession of John.  That a much tougher line could henceforth be taken against anyone who owed the king money was spelt out in an ordinance issued at Windsor after Easter 1201.4  This was principally directed against tenants-in-chief, and their ability (described in the Dialogus) to send representatives – described as their stewards - to answer for them at the exchequer and to accept responsibility for the sums they owed the crown.  Much of the ordinance was concerned to ensure that these stewards were themselves men of sufficient substance to be able to pay the sums required of their lords, who had presumably been slowing down, or simply preventing, the payment of their debts by dealing with the exchequer through men who did not have the means needed to meet its demands.  But it was also laid down that if the stewards defaulted, then the money owed could be raised from the estates of their lords, while if the debt had been incurred through a fine made for land – pro fine terrae – then the land itself could be taken into the king’s hand and held until the fine was paid.  Since transactions over land featured prominently, and expensively, among the dealings of the king with the upper echelons of society, this new provision gave the king a potent means of leverage against anyone who owed him money for this reason and subsequently incurred his displeasure, a leverage which could be all the more effectively deployed because procedure would be according to the law of the exchequer, over which the king exercised close control.

John had only recently shown the rigour with which he was prepared to treat crown debtors when on 5 March 1201 he had ordered the sequestration of the estates of his own half-brother, Archbishop Geoffrey of York, `for the debts which [he] owes us and for defaults and for other reasonable causes ...’.5  But although the king’s severity may have been prompted by his having been recently engaged in a series of disputes with the irascible prelate, Geoffrey was probably too important and prominent a figure to be subjected to arbitrary dispossession, and John was careful to record that he had acted against him `by the judgment of our court’.  And in fact, even after the Windsor ordinance had legitimised such hard-line measures, in the early years of John’s reign the king and his agents usually seem to have preferred to raise money owed to the crown from the chattels and sureties of debtors.  The sequestration of chattels could be thorough, however, judging by a return to the exchequer made by the sheriff of Leicestershire and Warwickshire in the first year of John’s reign, reporting that he had paid in nothing from the debts of Gilbert of Seagrave, but had ordered two of his underlings to sell Gilbert’s chattels and pay in the money once they had done so.  Since the sum in question was 400 marks, raising it entirely from Gilbert’s moveable goods must have left his houses and lands in a desolate condition.6

(c) Pressure on pledges

As John’s reign proceeded, however, the treatment of crown debtors, and of their pledges, became harsher.  In July 1208 the king commanded that the Lincolnshire knight Thomas of Moulton, who owed over £500, should be arrested and imprisoned in Rochester Castle, `so that he may not leave until he has paid us everything he owes us, to the last penny ...’, and though Moulton’s treatment was not in fact as harsh as the king’s order dictated, he still forfeited chattels valued at over £60, while his sureties had to pay £104. 10s. on his behalf.7  As the pressure exerted on royal debtors grew, the number of sureties increased, as did the demands that might be made on them.  On 7 May 1207 the sheriffs of Essex, Sussex and Suffolk were ordered to take into the king’s hands all the lands of Geoffrey de Sacheville and Ralph de Marci, along with all the chattels and stock on them.8 Geoffrey and Ralph then made fine by 1000 marks to have the king’s good will, to be quit of a forest offence and to recover their lands, and found pledges for their paying this large sum within four years.  Within twelve months the latter had contributed nearly £475 towards clearing the debts of the principals, and they went on paying until the entire debt was cleared in 1210.  The contribution of the principal debtors, as recorded, was minimal – order was given that their chattels be sequestrated, a process which in Kent raised £9. 18s. from Marci’s goods and £5 from Sacheville’s.9  Otherwise the whole sum was extracted from their pledges, in a case which does much to explain why Clause 9 made provision for such men’s being enabled to recover their outlays from principal debtors.

A list of Marci’s sureties contains thirty-seven names, of Sacheville’s no fewer than fifty-seven, though as several names occur in both the total number of pledges was rather less than ninety-four.  The amount each man was required to guarantee was recorded, suggesting that these were men of widely differing means – some were responsible for up to 100 marks, many for fifty or sixty, but some for less than ten.  A broad range of landowning society thus came under pressure, in line with exchequer policy which clearly aimed to spread the burden of payment, and also, perhaps, of submission to royal demands.  When Roger son of Adam relinquished the shrievalty of Hampshire in 1207, he fined by 1000 marks `for having the king’s good will’.  This sum was guaranteed by literally hundreds of sureties; the abbess of Wherwell underwrote five marks, the prior of Winchester ten, Arnold the vintner of Southwark as much as twenty, but many people were pledges for sums between 6s. 8d. and 40s., or even for 12d. or 2s.10  At the other end of the social scale, when in the same year Geoffrey de Lucy undertook to pay 3000 marks `for having to wife Juliana, the widow of Peter de Stokes, with all her land ...’, his 103 pledges included the earls of Salisbury and Oxford, the bishop of Norwich, and leading royal servants like Robert de Vieuxpont, William de Briouze and Walter de Lacy, guaranteeing sums of between forty and 100 marks, while many of his lesser sureties undertook to pay between ten and twenty marks if Geoffrey defaulted.11

Since Geoffrey de Lucy had specifically made his fine for the land as well as the person of his wife, under the Windsor ordinance all his sureties risked having their estates sequestrated if payment was not made, helping to explain why Clause 9 placed restrictions on the demands that could be made of sureties, and also why some men paid to avoid or reduce them – the earl of Arundel, who had accepted responsibility for 100 marks of Geoffrey’s debt, was recorded as owing a good palfrey (the equivalent of about twenty marks in cash) and a Norwegian goshawk to be quit of being a pledge (de plegiagio) for forty marks,12 thus reducing his liability to have his lands seized in the event of Geoffrey’s defaulting on his debt.  The dangers, and expense, became no less great for baronial stewards.  Following the death in 1211 of Roger de Lacy, lord of Pontefract and constable of Chester, seven men were charged with sums ranging from twenty to 1000 marks, altogether amounting to nearly £1300, for not being obliged to render account for the time when each had been Roger’s steward – presumably these were the men who had answered for Roger at the exchequer, as the Dialogus prescribed, and had undertaken to pay money demanded from their lord, without at the time expecting, or even intending, to do so.  Any confidence they may have felt about exchequer complaisance must have been quickly dispelled, for within a year they had all made significant progress towards paying what they owed, with two clearing their debts entirely and the other five (one of them helped by a pardon for 200 marks) reducing them by at least half.13

(d) Magnates and principals

In the later years of John’s reign, several crown debtors were compelled to use their estates as pledges for payment.14   Some were among the king’s own henchmen, for instance Peter de Maulay, who in 1214 undertook to pay 7000 marks for his marriage to the heiress of Robert of Thornham, together with her lands; Peter spread the burden, and the risk, by finding pledges for 4900 marks, but had to offer all his own lands as surety for the payment of the rest.15 But it was not only magnates who came under this sort of pressure.  Thomas of Langley, owing just 100 marks and a palfrey in the same year for the keepership of Wychwood forest in Oxfordshire, also had to offer all his lands and chattels as pledges for payment.16  Admittedly the burden on Langley was lightened by his being allowed to meet his commitments at the rate of £10 per annum, while in the end Maulay paid nothing at all, being pardoned his commitments in 1221, but at the time when he incurred it his debt must have looked likely to constitute a weighty restriction on this would-be magnate’s freedom of manoeuvre – as, in all probability, it was intended to do.

Such cases illustrate the extent to which dispossession – with its potentially dire implications, in a society effectively based upon land-tenure, for the rank and reputation, as well as wealth, of those affected - was becoming an ever-present threat, and one which might be activated at any time against stewards, sureties, and principal debtors alike.  In June 1206 King John ordered the justiciar to return his lands and chattels to Peter de Scoteneye, `taken into our hand because of our debts ...’, and also commanded a respite of proceedings against Peter `for the greater part of those debts’, because he was now serving the king overseas.  This easing of pressure did not prevent Peter’s joining the rebellious barons ten years later.17  More dramatic, and drastic, were the proceedings against William de Briouze, whose huge debts of well over £3000, accumulated with the connivance and perhaps even the encouragement of the king, were used by John in 1212 to justify his destruction of a servant made dangerous by knowledge and power.  In what was in effect a public statement, the king set out how he had proceeded `according to the custom of our realm and by the law of our exchequer’, beginning by distraining upon his victim’s chattels.  Briouze then surrendered three Welsh castles as pledge for payment, and `moreover he placed all his English and Welsh land in surety to us, to be forfeited if he did not observe that term ...’.  His estates were thus already at the king’s disposal when he was finally, and formally, outlawed `according to the law and custom of England’, and thereby forfeited all his possessions.18  Six earls and seven barons witnessed John’s statement, so giving plausibility to the king’s assertion of the lawfulness of his proceedings, and in the process doubtless reinforcing a growing belief that formal controls were needed upon processes so powerful and potentially destructive.

There was more than one way in which the king could take advantage of debt so as to claim, or threaten to claim, the lands of his subjects.  Nicholas de Stuteville, making the huge proffer of 10,000 marks for the estates of his brother William in 1205, had to leave Knaresborough and Pontefract castles in John’s hands as guarantees for the payment of this enormous sum.  The money was never forthcoming, and the castles with their associated estates remained under royal control thereafter.19  In other cases the threat of foreclosure could be used to obtain services from a debtor.  In 1210 Walter de Turberville, a west country landowner, fined by 1000 marks to have the king’s good will, which he needed to recover after being charged with breaches of forest law and an offence concerning a wardship.  He paid 500 marks within a year, but in 1213 undertook to work off 150 marks of the remainder by serving as a knight in Poitou for a year; if he failed to serve `faithfully’, then all his land would be seized by the king, an agreement he had confirmed by charter.20  At least Walter had retained his estates when this settlement was made.  The northern magnate Robert de Vaux, having long enjoyed the king’s favour, was effectively disgraced in 1210, so comprehensively that a year later he was recorded as owing 2000 marks `for having the king’s mercy’.  When this was recorded he had paid nearly half the debt, but there was no let-up in the pressure on him, until a further settlement was made in December 1213.  By this time Vaux was in prison and all his lands were in the king’s hands – to recover his freedom and his estates he had to give hostages (including his mother, his sister and his son), and - rather like Turberville - to redeem his debt by undertaking to finance the services of troops overseas.21

(e) Controlling the king’s will

Clause 9 did not in fact formally prohibit the seizure of land for debt - by calling for action to be taken first against moveable goods it may be said to have inhibited it, but it did not rule it out.  Perhaps the barons were reluctant to forbid altogether procedures which they could themselves exploit in their dealings with their own debtors, who might well also be their tenants, and for this reason, too, did not call for a straightforward return to the procedures laid down in the Dialogus.  But in John’s reign too much depended on temporary circumstances, or even personal caprice.  Two cases from the months immediately after the sealing of Magna Carta show with particular clarity the resulting inconsistency, and in particular the ways in which the king’s favour could mitigate or promote the harassment of debtors.  On 26 December 1215 John ordered the sheriff of Nottinghamshire to seize the lands of the Lancashire baron Ralph de Gresle `who is our enemy, because of the debts which he owes us ...’ – in this case one reason for stern action was used to reinforce another.22  But three months later he gave order that Oliver de Punchardon’s lands at Faccombe in Hampshire were to be returned to him by William Brewer, who had disseised him of them `for an old debt which his ancestors owed to the king’s ancestors ...’.23  In fact Oliver’s debt, recorded in 1214 as amounting to about £40, appears to have been entirely incurred since 1207,24 raising the possibility that it was the discovery of its misrepresentation which prompted the king’s directive.  But in the prevailing circumstances it is far more likely that John’s command was dictated by military considerations, by Oliver’s having then been in the king’s service at Nottingham, in the garrison of a strategically vital castle,25 and thus a man whose loyalty had to be retained. Although John was prepared to rely on the formal processes of the exchequer when it suited him, as he did in the case of William de Briouze, it may well have been almost as much the unpredictability of his treatment of debtors as the threat his actions posed to their status and finances which made his victims (many of whom were among the rebels of 1215) call for regulations to control the measures taken against those who owed money to the crown.

1

D.W. Sutherland, The assize of novel disseisin (Oxford, 1973), 50-1.

2

e.g. A.L. Poole, Obligations of society in the XII and XIII centuries (Oxford, 1946), 104; PR 13 John (1211), xxxii-iii ;T.K. Keefe, Feudal assessments and the political community under Henry II and his sons (Berkeley, 1983), 116-29.

3

E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 166-7.

4

W. Stubbs (ed.), Chronica Rogeri de Hovedene, 4 vols. (Rolls Series, 1868-71), iv, 152.

5

T.D. Hardy (ed.), Rotuli chartarum, 1199-1216 (Record Commission, 1837), 102.  For the background to this measure see Chronica Rogeri de Hovedene iv, 139, 156, 157, 163; M. Lovatt (ed.), English episcopal acta xxvii: York, 1189-1212 (Oxford, 2004), liii. 

6

H.G. Richardson (ed.), Memoranda roll, 1 John, Pipe Roll Society 59 (1943), 53.

7

PR 10 John (1208), xviii; T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835), 85.

8

T.D. Hardy (ed.), Rotuli litterarum clausarum, 1204-1224 (Record Commission, 1833 – hereafter RLC), 82.

9

PR 9 John (1207), 100-1; PR 10 John, xvii, 32; PR 11 John (1209), 194-5, 200-1; PR 12 John (1210), 198-9; T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 - hereafter Rot.Ob.Fin.), 445-7.

10

PR 9 John (1207), 149; Rot.Ob.Fin., 447-57.

11

PR 9 John (1207), 148; Rot.Ob.Fin., 458-9.

12

PR 9 John (1207), 41.

13

PR 13 John (1211), 33-4; PR 14 John (1212), 4.

14

J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 191-2.

15

PR 16 John (1214), 94.

16

Rot.Ob.Fin., 485-6; PR 16 John (1214), 118.  Langley did not start to pay his debt until 1222, PR 6 Henry III (1222), 74, and had not cleared it by 1230, PR 14 Henry III (1230), 246.

17

RLC, 72, 333.

18

T.Rymer (ed.), Foedera I:i (Record Commission, 1816), 107-8.

19

PR 7 John (1205), 59; J.C. Holt, The northerners: a study in the reign of King John (Oxford, 1961), 27, 173.

20

PR 12 John (1210), 88; PR 13 John (1211), 167; Rot.Ob.Fin., 484.

21

PR 12 John (1210), 139; PR 13 John (1211), 157; Rot.Ob.Fin., 513; PR 16 John (1214), 139.

22

RLC, 243.

23

ib., 254.

24

PR 9 John (1207), 148; PR 16 John (1214), 130, 131, 134.

25

RLC, 188 records him as a member of the Nottingham Castle garrison in February 1215.

Referenced in

Clause 55 (The 1215 Magna Carta)

Clause 49 (The 1215 Magna Carta)


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Original Latin

X

Si quis mutuo ceperit aliquid a Judaeis, plus vel minus, et moriatur antequam debitum illud solvatur, debitum non usuret quamdiu haeres fuerit infra aetatem, de quocumque teneat; et si debitum illud inciderit in manus nostras, nos non capiemus nisi catallum contentum in carta.

10

If anyone has taken a loan from Jews, great or small, and dies before the debt is paid, the debt is not to incur interest for as long as the heir is under age, whoever he may hold from. And if the debt comes into our hands, we will take only the principal recorded in the charter.

Audio commentary

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Commentary for academic researchers

Because it was felt necessary to provide a detailed analysis of King John’s policies towards English Jews in order to elucidate Clauses 10 and 11, they were originally discussed together, within a single extended commentary.  They have now been separated, but except at their beginnings and endings, the commentaries on the two clauses remain very largely identical.

(a) Purposes and application

Among the Articles of the Barons, numbers 34 and 35 were seemingly placed at random in a miscellaneous series of demands, occurring between one clause dealing with freedom to leave and enter the country, and another relating to the tenants of escheats.  Having regard to their content, the protection of the heirs and widows of men who died owing money to Jews, Clauses 10 and 11 of Magna Carta were much more rationally situated, in that they now came after a sequence of clauses (2-8) primarily concerned with succession to property, with a particular emphasis on the rights of widows and under-age heirs, and a single clause (9) laying down the procedure for the payment of debts.  Article 34, like Clause 11 of the `Unknown Charter’, which was probably drawn up during negotiations between King John and the barons in the months before the granting of Magna Carta, and also like Clause 10 of Magna Carta afterwards, was particularly concerned to control the accumulation of interest upon debts owed to Jews, something which the king, by virtue of his own over-riding authority where Jews were concerned, seems to have been able to exploit to an unacceptable extent.  In this – something which was not spelt out in the Charter – it was intended to benefit only free men and women.  But within that category it was to be of universal application.  In stating clearly that a debtor’s heir was to be protected `whoever he may hold from’ (de quocumque teneat), Clause 10 provided safeguards for all freeholders, not just for tenants-in-chief, and in this it differed from Clause 11 of the `Unknown’ Charter, which seemingly demanded protection only for the heirs of tenants-in-chief (aliquis hominum meorum).1  That this should have been so reflects the importance both of the point at issue – the accumulation of interest on inherited debts to Jews – and of the role that Jews had come to play in government finance during the twelfth century, and also of the consequences of these developments for landowning society as a whole.

(b) Kings and Jews, 1066-1199

There is no record of Jews living in England before 1066.  Their arrival after the Norman Conquest appears to have been the direct result of royal policy, arising from William I’s financial needs and his experience of dealing with a Jewish community in Rouen.  The close association of Jews with the crown proved lasting.2  Kings needed loans and taxes, Jews needed protection, against antagonisms arising both from their religion and from their financial activities, two currents of hostility which combined as a result of the near monopoly of the business of lending money at interest, a practice forbidden to Christians, which they had come to possess by around 1200.  The teaching of the Paris schools at that time, as expressed in writings like the Summa confessorum of Thomas of Chobham, was strongly disapproving of the association of kings and Jews - Thomas regarded the former as complicit in the usury of the latter, and expressed surprise that the church tolerated it.3  In fact the church had little choice but to do so, and the protection which successive English kings were able to give to Jewish communities was usually effective, so that their number grew during the twelfth century, gradually extending to most parts of the country.

Familiarity did not generate acceptance, however, and English Jews were exposed to intermittent outbursts of fierce violence, especially at times when preparations for crusades exacerbated feelings of enmity towards non-Christians.  Such feelings can only have been heightened, moreover, by repercussions from the crown’s increasingly intensive exploitation of Jewish resources.  Subservience and exploitation constituted the price which Jews paid for royal protection.  Their status in England around 1200, as recorded in the often ambiguous language of legal texts and government records, is hard to define and has often proved contentious.4  Passages in a mid-twelfth-century revision of the Leges Edwardi Confessoris, declaring that `the Jews themselves and all their possessions are the king’s ... if someone detains them or their money, the king shall demand them as his own property [tanquam suum proprium] ...’,5 in a charter for a favoured Jew issued in 1190, in which Richard I licensed Isaac, the son of Rabbi Josce, and his family to go where they wanted with all their chattels, `as our own property’ (sicut nostre res proprie),6 and in the legal treatise Bracton, of around 1230, which echoed the Leges Edwardi in stating that `The Jew can have nothing that is his own, for whatever he acquires he acquires not for himself, but for the king ...’,7 have been interpreted as treating Jews as akin to villeins.  The vulnerability of English Jews to royal demands, it is argued, resembled that of villeins with regard to their lords - `The lord could take anything his villein held, and the villein had no redress in the royal courts’.8  Efforts have been made to undermine the analogy, and though not all of them seem equally persuasive, it is certainly true that Jews had privileges, and indeed a special position in English society resulting from the inter-relationship of their religious identity and the royal protection which they needed as a result of it, unlike anything enjoyed by villeins.  What Jews and villeins did have in common was a comparative rightlessness with regard to king and lord, which even though it was not always, or even often, exploited to the full, was nonetheless always there, and capable of being manipulated to their disadvantage.  The king could impose an arbitrary levy – a tallage – on Jews, whenever and at whatever rate he pleased, could manipulate the debts owed to them, and was entitled to take a third of their possessions when they died.  Indeed, he was in a position to put well-nigh unlimited pressure on Jews, and the latter, making their living primarily by money-lending, had little option but to exert equal pressure on Christian debtors in order to raise the sums which the king demanded.

In fact, the threat to Christian resources posed by a combination of Jewish creditors and royal exactions was restricted at first.  The chronicler William of Newburgh, commenting on what he saw as Henry II’s unwarranted favour towards his Jewish subjects, associated this with the large advances he was able to extract from them,9 which until late in his reign were usually made in the form of loans.  In 1186 Henry signalled a change in policy by imposing a massive tallage, allegedly of £60,000, on Jewish communities, and swiftly followed this with two more, but not all the money was collected.10  When Aaron of Lincoln, the greatest Jewish financier of his generation, died, also in 1186, his entire fortune, in cash, valuables and bonds, was on unspecified grounds declared forfeit to the crown.  But despite a special branch of the exchequer being set up to handle Aaron’s debts, sums amounting to £15,000 were still owing when they were transferred to the regular exchequer five years later, and some £12,000 in 1201; the fact that no interest was charged on Aaron’s debts after they came into the king’s hands must have removed what might otherwise have constituted a strong incentive to debtors to clear their obligations.11  Henry II granted charters of rights to English Jews, probably early in his reign, and in 1190 these were implicitly confirmed by Richard I.12  The latter also made considerable demands on his Jewish subjects, imposing four tallages of a total of 10,000 marks during his reign,13 but his exactions were probably no greater than those which he made on everyone else.  Following the massacres of Jews at York and elsewhere in 1190, moreover, determined efforts were made to punish those responsible, and in 1194 the articles of that year’s eyre included one concerned with `the killers of Jews’, though it also attempted to secure what was due to the king from the debts and chattels of the slain.14

(c) King John: responding to opportunities, 1199-1207

The disturbances of 1190 seem to have affected only the Jewish communities of London, York, Lincolnshire and East Anglia, and for these they constituted a heavy blow.  For English Jewry as a whole, a no less important development was the appointment, in around 1194, of officials known at first as `keepers’, and then as `justices of the Jews’, who soon took charge of a special `exchequer of the Jews’, which administered many of the crown’s financial dealings with Jews and exercised jurisdiction over most disputes between Jews and Christians.15  Associated with this innovation was an ordinance commanding the listing of all the property of Jews, whether in debts, or gages, or lands and rents, and the establishment of six or seven offices at which Jewish loans were to be recorded on chirographs, of which one part was to be handed over to the lender, having first been sealed by the borrower, while the other part was stored in a specially made chest.  As a control upon their payment, all debts were also to be enrolled, and changes in their status noted.16  These measures may have originated in Hubert Walter’s concern for efficiency (since everything a Jew owned was potentially the king’s, it was essential that full records be kept of Jewish transactions and debts), but they also created what was potentially a formidable apparatus of oppression and exploitation.

Such terms are readily associated with King John, but in the early years of his reign his dealings with Jews were in most respects similar to those of his brother and father.  On 31 July 1199 he confirmed Jacob the Jew of London in his position of `presbyter of all the Jews of England’,17 and on 10 April 1201 (at a price of 4000 marks) he issued two charters in which he confirmed grants which Richard I had made to a single English Jew and extended them to all the Jews of England and Normandy.18  The first mostly upheld rights of residence, tenure and inheritance which Jews had enjoyed since Henry II’s time, while the second gave the Jewish community jurisdiction over disputes arising between its members, as long as these did not involve pleas of the crown. Two years later John responded forcefully to reports of injuries being inflicted on Jews in London, at a time when he claimed that they were living in peace elsewhere in the kingdom.  He ordered the mayor and citizens to protect Jews against attack, and warned them he would hold them responsible for any Jewish blood that was shed, `for we know well’, he concluded, `that such things occur on account of the half-wits (fatuos) of the town, and not of the prudent, and the wise ought to constrain the stupidity of fools.’

In taking so firm a line, John made it clear that he was more concerned for the maintenance of his peace than for the well-being of Jews - `nor indeed were we moved in that for the sake of the Jews but for that of our peace, because if we had given our peace to a dog, it ought to be inviolably observed ...’.19   In November 1204 he granted his peace, along with licence to come safely to England and remain there, to a Jew named Hanuchim, as reward for the latter’s good service under Roger de Lacy in the recently lost fortress of Château Gaillard,20 but at the beginning of that year, as French pressure on the duchy of Normandy intensified, John showed what treatment English Jews might be exposed to as a result of his financial needs.  On 30 January the sheriffs of several East Anglian counties were ordered to make `urgent distraints’ on Jews for their debts to the crown,21 and further exactions soon followed, intensified, perhaps, by the loss of Normandy, since the resources of Jews there, and especially of their principal community in Rouen, were no longer available for exploitation.  In April 1205 `our Jewish prisoners’ were among those excepted from the general pardon which, following the death of Queen Eleanor, and for the good of her soul, was granted to those held in the king’s gaols – their arrest is probably to be associated with some unrecorded levy.22

Here John can be seen turning the screw on the Jews themselves, but he was already well aware that indebtedness to Jews could also be exploited to his own advantage.  In 1204 – and possibly earlier, gaps in the records prevent certainty – he had begun to grant letters to Jews ordering that debts to them should be paid, and that the king should receive one bezant for every pound collected.23  The sums in question were almost always described as including interest by chirograph (cum lucro per cirographum), suggesting that the Jews concerned were taking steps to secure payments of debts recorded under the ordinance of 1194, with the interest being included with the principal when the relevant bonds were drawn up.24  No doubt the letters were directed to sheriffs, and led to their powers of coercion being put at creditors’ disposal – two Jews who in 1205 obtained letters of this kind against two men and a woman who owed them money in Dorset and Somerset subsequently accounted for the bezants they owed, specifically `for distraining’ upon their debtors.25  Since a bezant was valued at approximately two shillings, the king profited to the extent of receiving a ten per cent levy on every Jewish debt which was collected in this way, and he probably received a modest fee for issuing the initial letters as well.  This was a device capable of infinite extension – anybody who owed money to a Jew could be harassed into paying up through such means, regardless of his or her eminence.  Also in 1205, a Gloucester Jew named Bonevie accounted at the exchequer for seven bezants (valued at 14s.), payment `for having letters for ten marks [£6. 13s. 4d.] upon the earl of Hereford.’26  Perhaps the king or his agents regarded this as only fair-dealing; whether it was prudent to enable a Jewish creditor to pursue one of the great men of the realm in order to enrich the king by 14s. does not seem to have been a question they asked themselves, at any rate not for some time.  Such letters went on being issued at least until 1208, when a further lacuna concealed their use – they had ceased to be recorded by the time the sequence of surviving fine and oblate rolls resumed in 1213.

The use of letters ordering distraints upon debtors to Jews illustrates how the pressure which King John exerted upon the Jews themselves could have an impact extending far outside the Jewish community.  Their leading role as money-lenders, in an inadequately monetised society, meant that the number of men and women, of every social rank, who became indebted to Jews was always considerable, while the risks which credit transactions entailed were such as to keep interest rates high.  These were not in fact always recorded, it seems to have been common for interest to be included with the principal when the initial terms of payment were laid down, though separate payments of interest would become due if the terms were not met.  Where interest was due from the outset, the usual rate seems to have been twopence per pound per week – that is, forty-three and a third per cent per annum; threepence was not unknown, however, and in one exceptional case sixpence.27  Although evidence is scanty, the accumulation of interest on a loan could plainly be substantial.  In 1215 a debt of ten marks was found to have gathered a further seven marks in interest,28 while in 1204 one Richard de Scrupes was recorded as owing at least thirty marks in interest to Jews of Gloucester from whom he had originally borrowed twenty-five and a half marks (unfortunately in neither case is there anything to show how long it took for the interest to accrue thus).29  As already noted, when a king demanded money from Jews, it was inevitable that the latter should in turn apply pressure to their debtors for the payment of money owed to them, interest as well as capital, so that the king’s demands could be met.  The process of debt collection was itself potentially stringent and methodically carried out; when land pledged as security was seized by a creditor, everything on it was valued and then passed into the creditor’s hands, to constitute part of the repayment.

Throughout his reign John used the king’s controlling interest in Jews as an instrument of patronage.  He might grant a respite on the payment of, or pardon the interest due from, Jewish debts, perhaps in consideration of the overseas service which had led to those debts being contracted, or even remit a debt entirely – on 8 August 1202 the stroke of a pen cleared the earl of Arundel of all his debts to Jews up to the beginning of the month.30  He might accept payment for rescheduling a Jewish debt.  In 1205 Henry Bec undertook to pay the king either a horse or twenty marks, whichever John preferred, in return for an order that Henry’s debt to Ivo the Jew of Lincoln be paid off at the rate of £50 per annum.31  He might grant Jewish property to a friend or ally.  Several of the keepers, or justices, of the Jews, benefited in this way, for instance Simon of Pattishall, who was given two messuages in Northampton in 1200,32 and Thomas de Neville, who in around 1212  disposed of `houses which belonged to Aaron the Jew of Lincoln which I have by gift of the Lord King John ...’.33  In 1214 John gave his henchman William Brewer three Jewish houses, in London, Northampton and Oxford, in a single grant.34  The properties in question were already in the hands of the king when he disposed of them, but John’s opportunities for making such gifts could be augmented if land pledged to a Jew for a debt escheated to the king when the Jew died – in 1201 Maurice of Askern, a Yorkshire landowner, gave ten marks and a palfrey for a searching inquiry into debts owed to Josce of York by his father, who had pledged land in Askern to him, `and if that land came into the king’s hand for any other reason than as an escheat by Josce’s death.’35

(d) Tightening pressure: the measures of 1207

During the first half of John’s reign his exploitation of Jewish resources was mostly opportunistic and occasional, while the collection of Jewish debts which had become the property of the crown remained the responsibility of the exchequer of the Jews, which seems to have approached its task with a notable lack of urgency.  Prior Geoffrey of Canterbury, detailing in 1198 the wrongs suffered by his monks in a bitter dispute with Archbishop Walter, alleged that `Jews are compelled against their will (etiam inviti) to extort violently from us what we owe them ...’36 – the impression conveyed is of faceless bureaucrats exploiting their control of Jewish creditors to exert pressure from afar.  From 1207 the advantages of an oblique approach to debt collection were increasingly discarded, and King John’s own direct responsibility for fiscal pressure became all too clear.  That year saw both further demands on the English Jewish community, and determined efforts to collect Jewish debts which had passed into the king’s hands.  One tallage, of 4000 marks, was of less consequence than another, of a tenth of the value of each Jew’s bonds, this being backed by a record of those bonds which was to be deposited in the exchequer – from now on John had immediate access, at the centre of government, to up-to-date information about the resources of English Jews.37

The possible consequences for John’s subjects, Jews and Christians alike, can be illustrated from the case of Henry Lovel, who in 1208 proffered eighty marks and a palfrey to be cleared of the debt which his father, another Henry, who died in 1194, and his brother Ralph, who had died in the previous year, owed to Vives, a son of Aaron of Lincoln.38  For the purposes of the tenth Vives had valued the debt at 200 marks (£133. 6s. 8d.), and as part of the deal Lovel agreed to pay £78. 1s. 4½d. to the king, thereby settling a debt which Vives owed the crown, while he negotiated a settlement with Vives over the rest of the money (£55. 5s. 3½d.) – it may be doubted if Vives received so much, however, since it was stipulated that when he accounted with Lovel the latter was to be allowed any money already paid towards the settlement of his family’s debt, and three years earlier Ralph Lovel complained that Vives had been holding the Lovel barony of Castle Cary but had failed to acknowledge his receipts from it.  The net result was that John gained by accepting Henry Lovel’s fine, and also by being paid money owed him by Vives.  Lovel became clear of an inherited debt to Vives, but at the price of becoming more heavily indebted to the king than he had been before, altogether owing £331. 3s. 7d. and seven palfreys, which he was expected to pay off at the rate of 100 marks per annum.  Vives was cleared of a debt he had owed the king, but probably lost on the Lovel family debt – perhaps John or his advisers reckoned that he had understated the amount owed, and punished him by accepting his own estimate, so that he received, or was allowed, less than the full value of the debt.

At the same time the collection of the debts of Aaron of Lincoln was reactivated.  Although some of them were by now so old as to be regarded as well-nigh hopeless,  Aaron’s son Elyas, most likely yielding to force majeure,  gave 200 marks for having £400 worth of his father’s `worse bonds’, ones which had not been cleared `and which are worth less to the lord king’, and then a further three gold marks for a better deal, `for having such bonds as may be productive and from which profit may accrue to him’.39  Recorded payments show that while some of the bonds which Elyas chose were indeed likely to yield a safe return – Roger de Ginges, for instance, charged with £7 in 1208, had owed £26. 11s. in 1197, and had been steadily paying off his debt in the intervening years – others had done little to clear their debts since these were first recorded.  But it was essential for Elyas, if he was to profit from his bargain with the crown, that other men, for instance Robert de Gant, who had owed Aaron £26 in 1191, but had paid nothing at all since then, and Gilbert de Coleville, whose original debt of £70. 6s. 8d. (recorded in no less than nine bonds) had been reduced by just £5. 6s. 8d. in twenty-one years, should now pay up.40  Such men must have found the pressure they now came under to settle these aging debts, after years of tacit acquiescence in their non-payment, to be highly unwelcome if not actually offensive.

Jewish creditors and their debtors alike looked to the king for support and protection, which John duly supplied, at a price, at least once to both parties to the same contract.  In 1207 Isaac the son of Cresselinus gave £5 to be put in possession of the estate at Rushall, Wiltshire, of Fulk de Alno, who owed Isaac money, only for Fulk to give four palfreys to have the order revoked, by reference to a deal he had previously made with the king for paying his debt.41  When in 1208 Samuel son of Dieudonné made an agreement with the king to have royal support in raising money owed him by Richard Basset of Great Weldon, the fact that John’s price was a third of the entire debt gave him an interest in its collection almost as great as Samuel’s, and identified him closely with the methods used to raise the money – unsurprisingly, Basset was among the baronial rebels at the end of the reign.42  Another such rebel was Henry d’Oilli of Hook Norton, Oxfordshire, who accounted for £1015. 7s. 11d. for a debt to Simon the Jew of Oxford which had been taken into the king’s hand, probably in the previous year.  After making an initial payment of fifty marks, Henry agreed to pay 100 marks per annum until the debt was cleared, on condition that if he fell behind in his payments the bond recording the debt was to be returned to Simon, and whatever Henry had paid the king was to be regarded as lost, while Simon would presumably start exacting what was owed him all over again.43  Henry d’Oilli’s bond was entrusted to the chancellor, Walter de Gray, who as another Oxfordshire man would have been well placed to know the details of Henry’s circumstances.  Gray was just one of John’s agents to be active at this time on their master’s behalf, targeting Jews – in 1207 year Simon son of Jacob, a Jew of Northampton, gave 100 marks to have all his father’s lands, chattels and debts, reserving to the king `his debts and tallages and his third which Jacob owed the lord king, and his gold and silver found after his death’ (perhaps Simon was suspected of having tried to conceal some of his late father’s valuables)44 – and Christians alike, especially those who had owed money to Aaron of Lincoln.  Late in 1208 order was given that all the lands of those in arrears with such debts should be taken into the king’s hand.45

(e) Going to extremes, 1210-1215

All this was bad enough, both for the Jews and for those who owed them money, but the pressure exerted upon both became heavier still in 1210.  In the spring of that year order was given for the arrest of Jews throughout England and their imprisonment at Bristol,46 where, according to Wendover, they were harassed and tormented into putting their wealth at the king’s disposal; one unhappy man, who refused to pay the 10,000 marks demanded of him, had one of his teeth knocked out each day for a week, finally saving the rest when on the eighth day he agreed to pay up.47  According to Gervase of Canterbury (one of a number of chroniclers to record the financial assault on English Jews, which clearly made a considerable impression), others were hanged or blinded, presumably for resisting the king’s demands.48  This brutality was accompanied by the seizure of all records of debts owed to Jews, and was followed, late in the year, by an unprecedentedly heavy tallage, said during pleadings in the exchequer of Jews in 1218 to have amounted to £40,000.49  The cruelty of the initial attack on Jews may have been randomly inflicted, but the tallage was methodically raised.  Presumably in order to benefit from their inside knowledge, Jews were themselves employed as agents of collection (something which can only have further demoralised the Jewish community),50 and doubtful cases were carefully investigated.  Uncertain, following the arrest of Jews, as to which of two men named Walter of Thorpe owed £14 to Isaac of Norwich, the king’s justices sent messengers, seemingly from Bristol, to Isaac, who had been imprisoned in the Tower of London, to discover the identity of the debtor `from his own mouth’.51  Unable either to hide from the king’s collectors, or to meet the king’s demands, many poor Jews fled overseas.52

Debts to Jews which were taken over by the king were no less assiduously pursued.  Although the wording of the records is often perfunctory and obscure, it would appear that lands pledged to Jews for the payment of debts, and the estates of debtors to Jews whose obligations had come under the king’s control, were alike liable to seizure.  In 1211 three west-country men undertook to pay 500 marks on behalf of John de Montagu, lord of the Somerset barony of Chiselborough, and obtained possession of his land quia in rotulo Judeorum,53  and in the same year William of Windsor had to find £100 to recover his lands, taken into the king’s hand de debitis Judeorum, and then pay 100 marks per annum to clear the debts themselves.54  Some men, indeed, had to sell their lands in order to meet royal demands arising from Jewish debts.  Gilbert FitzReinfrey, the sheriff of Yorkshire, paid £100 to Richard of Middleton for all his land at Middleton and Kneeton `in clearance of the debt he owed the king for debts to Jews’, and then gave 6s. 8d. to have the transaction entered on the pipe roll as an authoritative record (Gilbert was later recorded as paying Richard’s debt into the exchequer).55  In the aftermath of the 1210 tallage a great many debts to Jews had fallen into the king’s hands, and these, too, were methodically pursued.  A surviving roll from around 1212, although damaged, records the regularised payments made by Jews, but also, and in far greater numbers, by Christians, from Norfolk and Suffolk, Bedfordshire and Buckinghamshire, Northamptonshire, Gloucestershire, Berkshire, Essex and Hertfordshire, Hampshire, Cambridgeshire and Huntingdonshire, Yorkshire, Lincolnshire, Wiltshire, Dorset and Somerset, Sussex, London and Middlesex, Surrey, Devon, Oxfordshire, Kent, Warwickshire and Leicestershire, and the city of York.56  Only the far north, the far south west, and the Welsh marches are unrepresented.  A few of the sums involved were relatively substantial, between £15 and £45, but many were small, recorded only in shillings.  Among the debtors from East Anglia, for instance, were Stephen Blundus, owing 4s. for his mother Agnes, Henry the son of Robert of Bungay, owing 6s. 8d., and Basilea de Friville, who owed 10s.  None of the debts entered on this roll can be identified among those owing to Aaron of Lincoln, rather they all appear to have been recently incurred, but whatever their size they were all now being collected.  The process is unlikely to have made King John any friends, and indeed, in the insignificance of the debtors, and the smallness of the sums they owed, it shows how far down society the impact of Jewish money-lending, and also of the king’s pursuit of the resulting debts, had by now extended.

The king seems to have sensed that his exploitation of Jewish debt was arousing resentment, for on 18 August 1212 he instructed all the sheriffs of England to cause `all debtors of Jewish debts’, except earls and barons, to come before him, so that their debts could be lightened, possibly by confining them to the principal owed.57  But the relief seems to have been short-lived, for in the same year Richard Marsh, one of John’s leading advisers, was recorded as `shamelessly’ (improbissime) collecting Jewish debts, with interest, from everyone,58 and in February 1213 John seems to have been planning further demands on Jews and their debtors, for he appointed commissioners who were not only to investigate official misconduct in Lincolnshire and Yorkshire but were also to inquire into `who have held the gages [vadia] of Jews and from what time and by what have they held them and how much they are worth and the names of each of the pledges.  And do you also let us know the houses and demesnes of Jews and which demesnes they have held at fee and which yearly and of whom they have held them and how much they have rendered for them and how much they are worth more than they have rendered ...’.59  In July that year efforts were being made to collect arrears from the tallage of 1210.60  There could be some easing of pressure in favoured cases, for instance Robert de Ros, cleared of Jewish debts worth eighty marks in November 1213,61 or Simon of Kyme, who in around 1212 negotiated a settlement of an accumulated debt of nearly £1275, of which £419. 11s. 6d. was interest, and who in 1214 was also granted respite of payment of a Jewish debt of 700 marks inherited from his father.62  But others enjoyed no such let-up.  There is no evidence, for instance, that any remission was granted to Eustace de Vescy of his alleged debt of £50 de Judeis.63

(f) Magna Carta and the Jews

Vescy, Ros and Kyme all rebelled in 1215, along with many other landowners who had suffered from John’s exploitation of Jews and the debts owed to them.  As for the Jews themselves, they suffered both from that exploitation and from the enforced closeness of their association with the king’s money-raising methods, which can only have intensified the antagonism already felt towards them on religious grounds.  The theologian William de Montibus, who was for some twenty years chancellor of Lincoln Cathedral, pinpointed this aspect of the relationship between king and Jews when he characterised the latter as `the sponges of the king.  They are blood-suckers of Christian purses, by whose robbery kings despoil and deprive poor men of their goods.’64  When the barons captured London on 17 May 1215, they immediately demolished Jewish houses and used the materials to strengthen the city’s defences.65  (According to the sixteenth-century antiquary John Stow, when the Ludgate gate was rebuilt in 1586, a stone engraved in Hebrew letters with the name of Rabbi Moses, the son of Rabbi Isaac, was found embedded in the ancient masonry, a discovery associated by Stow with the baronial action.)66  But although the king’s enemies must have felt that they had more than sufficient reason for resenting the ways in which John had used his control of English Jews and their resources at his subjects’ expense, they placed remarkably few constraints upon them in Magna Carta – Clause 10 dealt with only one weapon in the formidable armoury of extortion and oppression which control of Jewish finance had placed at King John’s disposal.67  Provision was made for the dismissal of the king’s foreign mercenaries, but no similar order was given for the expulsion of Jews, although the idea seems to have been in the air, and had indeed been briefly implemented in the Île-de-France in 1182 (the Jews expelled in that year were allowed to return in 1198).68

One reason for the near total absence of references to Jews in Magna Carta may have been an understanding that their financial skills, particularly where credit transactions were concerned, and their ability to provide ready money at a time when supplies of hard cash were limited, were socially and economically indispensable.  Landowners of all ranks needed access to their expertise and resources, and were certainly not above exploiting the indebtedness to Jews of their Christian neighbours in much the same way that the king did.  Among the men who owed Jewish debts to the king in the years immediately before  Magna Carta were Roger Bigot, earl of Norfolk (one of the twenty-five barons charged with overseeing the implementation of the Charter), recorded as paying £20 on behalf of the heirs of William de Pirho and debts totalling £9 10s. for Robert de Auvilers, William d’Aubigny, earl of Arundel, who paid £10 of the debts of the Lincolnshire baron Robert of Tattershall, and the justice Simon of Patteshall, charged with £15 `for the fine of Robert de Broy’;69 these men, and others like them, had presumably been buying up Jewish debts, no doubt at a discount, and then either collecting them or foreclosing on them, in either case to their own advantage.  Religious houses notoriously expanded their estates in the same way.70  It was unlikely that lay and ecclesiastical lords would willingly forego the employment of such techniques, even though they might also be used to their own detriment, and they might well have been reluctant to deny the king practices which they exploited themselves.  It is also possible that there was a growing feeling that action against Jewish usury was something best left to the church, which had more than once forbidden Jews to take interest on loans made to crusaders,71 while a ban on the taking of excessive interest from Christians by Jews appeared among a number of restrictions placed upon the latter by the decrees of the fourth Lateran Council later in 1215.72

But the main reason for the lack of substantive action was most likely a feeling – one surely felt, and vigorously expressed, by King John - that the treatment, and exploitation, of Jews was too integrally a part of the royal prerogative to be easily separated from it. Writing to the sheriff of Herefordshire in June 1218 (and also to a number of other sheriffs and officials), Henry III’s minority government ordered him to ensure that `our Jews’ were able to live in Hereford, `as they used to do in the time of King J. our father’, and that he was to permit nobody to molest them, not least the bishop of Hereford, `because our Jews are no concern of his.’73  In every respect Jews were to be treated as they had been in the previous reign, when they had been no less `our Jews’, and when the king’s charter of 1201 had licensed Jews to go wherever they wished `with all their chattels as [if they were] our own’.  It was probably because they shared John’s belief that Jews were in some sense a royal monopoly, or at any rate were forced by the king’s recalcitrance to accept it, that the barons confined themselves to protecting only the most vulnerable of the potential victims of Jewish money-lending, with the result that action against other debtors continued to be taken as before.  When he was at Gloucester in August 1216 John was no doubt happy to receive a payment of 60s. to have a Jewish widow provided with a writ `for making distraint for the debt of £9 with interest which Henry the burgess owes her, as she says.’74  Even Clause 10 may quickly have come to be regarded as amounting to an unwarranted infringement of royal rights, for no equivalent clause appeared in any of the reissues of Magna Carta.

(g) Clause 10

Clause 10 ordered that following the death of anyone who had borrowed money from Jews, his debt was not to incur interest for as long as the heir was under age, while if the debt came into the hands of the king, the latter would only require payment of the principal, without any interest at all (or at any rate additional interest – the term catallum may have meant the combination of principal and fixed interest specified in some bonds).  As already noticed, the king often remitted payments of interest on debts to Jews, and the pope did the same for crusaders.  On 11 November 1206 John granted to Robert of Tattershall the wardship, as his right, of the lands and heirs of John of Ingham, directing that he was to have it until the heirs came of age, and that none of them should be troubled for John’s debt to Jews until the heirs came of age.75  In this case nothing was said about interest, and it is possible that it was left to accumulate during the years which followed, but the grant does at least show one of the ways in which the king could protect under-age heirs against the exactions contingent upon inherited Jewish debt.  The specific prohibition of interest was intended to prevent heirs from coming into their inheritances to find them massively encumbered with such debt.  Warin de Mountchesney of Swanscombe, Kent, a man of near-baronial rank, who after coming of age in 1213 proffered 2000 marks to have his inheritance, `and that he may be quit of all debts to Jews’ (the sum presumably also covered the interest attendant on those debts), was prepared to incur one obligation in order to avoid another.76  But not every debtor to Jews enjoyed Warin’s resources, and though no instances have been found precisely illustrating the abuse remedied by Clause 10, it can still be shown that the burdens of inherited Jewish debt could be heavy, even when the sums involved were not especially large, not least if they were methodically pursued by the king’s officers.

A number of heirs were recorded as debtors on the roll of Jewish obligations drawn up around 1212.  In Lincolnshire, for instance, the heirs of Ralph de Aubeny and Walter de Preston were debited with 13s. 4d., those of Ralph of Washingborough with 5s., and those of Ralph de Fenna with 11s. 8d.77  By this time some of these debts may have been distinctly elderly – Ralph de Fenna was presumably identical with the man of that name for whose daughter William de Budeville had proffered £20 in 1191, implying that he was dead by then.78  But if William and his wife were the heirs referred to twenty years later, the mere passage of time was clearly not going to be allowed to expunge Ralph’s debt   A more recent encumbrance was that upon the Sussex landowner Hugh of Lunsford, recorded on the 1211 pipe roll as having owed £70 to Samson the Jew of Canterbury, a debt which had come into the king’s hands some time before the general arrest of Jews and their bonds made early in the previous year.79  Of this sum Hugh paid £9. 6s. 8d. in 1211, £4 in 1212, £1. 5s. 2½d. in 1213 and 13s. in 1214.  The steady fall in the sums accounted for may reflect failing health, for by Michaelmas 1214 Hugh appears to have been dead.  But the remaining debt went on being exacted from his heirs (later named as his daughter Matilda), seemingly at the rate of 25s. 2½d. per quarter,80 or just over £5 per annum, a markedly higher amount than any Hugh had himself paid in any year except the first (in the 1220s Matilda was expected to pay just 20s. each year).

There is no way of telling how old Matilda of Lunsford was when she became responsible for her father’s debt, but such terms would have been onerous at any age, and no doubt appeared all the more so for the relentlessness with which they might be enforced.  Among the Norfolk debtors to Aaron of York was William le Vealtre of Burnham Overey, recorded in 1195 as owing a total of £191. 19s. 9d., and as paying 29s. 8d.81  Similarly modest payments were made in the years immediately following, and in 1201 his debt, which like other debts to Aaron was not inflated by accumulations of interest, still amounted to £186. 0s. 1d.  At this point, therefore, pressure began to be applied to William’s five pledges, who were required to pay five marks per annum towards the clearance of the debt, and often did so.  Although assisted by a clerical error in the compilation of the 1205 pipe roll, which resulted in a payment of 71s. 8d. being mistaken for one of £70. 1s. 8d. and the debt being reduced to £116. 8s. 4d., William and his pledges still owed £95. 13s. 4d. in 1212, at which point William died.  But the residue went on being demanded from his heirs (he had two daughters), who were still paying five marks per annum in 1242, when £12. 13s. 4d. had yet to be paid.  At least eight people – the debtor, his heirs and his pledges - had been made to pay just under £180 (in reality only about £110) in dribs and drabs over nearly fifty years.  For people like William and his daughters, a burden of Jewish debt, and the need to satisfy the king who had taken possession of it, must have been a constant cause of anxiety, one transmitted across generations, explaining why in 1215 the barons should have demanded that such exactions be brought under control.

1

J.C. Holt, Magna Carta (2nd edn., Cambridge , 1992), 428. 

2

For context I have relied throughout principally on H.G. Richardson, The English Jewry under Angevin kings (1960), and R. Bartlett, England under the Norman and Angevin kings, 1075-1225 (Oxford, 2000), 346-60.

3

J.W. Baldwin, Masters, princes and merchants: the social views of Peter the Chanter and his circle, 2 vols. ( Princeton , 1970), i, 298-9; F. Broomfield (ed.), Thomae de Chobham summa confessorum, Analecta Medievalia Namurensia 25 (Louvain and Paris, 1968), 510.

4

See particularly P.R. Hyams, `The Jewish minority in medieval England, 1066-1290’, Journal of Jewish Studies 25 (1974), 270-93, at 287-8; id., `The Jews in medieval England’, A. Haverkamp and H. Vollrath (eds.), England and Germany in the high middle ages (Oxford,1996), 173-92, at 182; A. Patschovsky, `The relationship between the Jews of Germany and the king (11th-14th centuries).  A European study’, ib., 193-218, at 208 n. 50, 215-16; G. Langmuir, `Tamquam servi: the change in Jewish status in French law about 1200’, M. Yardeni (ed.), Les Juifs dans l’histoire de France: premier colloque international de Haïfa (Leiden, 1980), 24-54, at 34-5.  Langmuir draws attention to possible ambiguities in texts and records, but his own interpretation of them often seems strained and unconvincing..

5

B.R. O’Brien, God’s peace and king’s peace: the laws of Edward the Confessor (Philadelphia, 1999), 184-5, with comment at 93-7.

6

T. Rymer (ed.), Foedera I:i (1816), 51

7

Sir F. Pollock and F.W. Maitland, The history of English law, 2 vols. (2nd edn., Cambridge, 1898), i, 468.

8

Hyams, King, lords, and peasants, 20.

9

R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II and Richard I, 4 vols. (Rolls Series, 1884-9), i: William of Newburgh, Historia rerum Anglicarum, i, 280.

10

Richardson, English Jewry, 162-3.

11

R.R. Mundill, The king’s Jews: money, massacre and exodus in medieval England (2010), 21-2.

12

Details in P.A. Brand, `Jews and the law in England, 1275-90’, English Historical Review 115 (2000), 1138-58, at 1138-9.

13

Richardson, English Jewry, 164-5.

14

Bartlett, England under the Norman and Angevin kings, 360; W. Stubbs (ed.), Chronica Rogeri de Houedene, 4 vols. (Rolls Series, 1868-71), iii, 263-4.

15

R.C. Stacey, `Jews and Christians in twelfth-century England’, M.A. Signer and J. Van Engen (eds.), Jews and Christians in twelfth-century Europe (Notre Dame, 2001), 340-54, at 348-9.

16

Chronica Rogeri de Houedene iii, 266-7.

17

T.D. Hardy (ed.), Rotuli chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 6-7.

18

Ib., 93; T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 133.

19

 T.D. Hardy (ed.), Rotuli litterarum patentium 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 33.

20

Ib., 47.

21

Ib., 38.

22

Ib., 58.

23

The earliest noticed is Rot.Ob.Fin., 197.

24

See Richardson, English Jewry, 69.

25

PR 7 John (1205), 140; Rot.Ob.Fin., 296-7.

26

PR 7 John (1205), 98.

27

Details from Richardson, English Jewry, 70.

28

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus.), 220.

29

PR 6 John (1204), 150.

30

Rot.Lit.Pat., 16.

31

Rot.Ob.Fin., 52.

32

Rot.Chart., 52.

33

J.C. Davies (ed.), The cartae antiquae, rolls 11-20, Pipe Roll Society new series 33 (1960), no. 366 (pp. 50-1)

34

Rot.Chart., 200.

35

Rot.Ob.Fin., 122.

36

W. Stubbs (ed.), Chronicles and memorials of the reign of Richard I, 2 vols. (Rolls Series, 1864-5), ii: Epistolae Cantuarienses, 450.

37

R.C. Stacey, `The English Jews under Henry III’, P. Skinner (ed.), The Jews in medieval Britain: historical, literary and archaeological perspectives (Woodbridge, 2003), 41-54, at 41.

38

Details from PR 10 John (1208), 113; Rot.Ob.Fin., 314; Rot.Lit.Claus., 112-13; R.A. Brown (ed.), The memoranda roll for the tenth year of the reign of King John, 1207-8, Pipe Roll Society new series 31 (1956), 36-7.

39

Rot.Ob.Fin., 420, 436.

40

PR 10 John (1208), 4, 27, 80-1.

41

Rot.Ob.Fin., 378, 390.

42

Ib., 425.  For Basset as rebel see Rot.Lit.Claus., 327.

43

PR 10 John (1208), 139.  D’Oilli was n rebellion by November 1215 – Rot.Lit.Claus., 237.

44

Rot.Ob.Fin., 391.

45

Rot.Lit.Claus., 98.

46

Richardson, English Jewry, 168-72; Stacey, `English Jews under Henry III’, 43.

47

H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum, 3 vols. (Rolls Series, 1886-9), ii, 54-5.

48

 W.Stubbs (ed.), The historical works of Gervase of Canterbury, 2 vols.  (Rolls Series, 1879-80), ii, 105.  Other chronicles which record these events include H.R. Luard (ed.), Annales Monastici, 5 vols. (1864-9), i (Annals of Margam), 29, and W. Stubbs (ed.), Memoriale fratris Walteri de Coventria, 2 vols. (Rolls Series, 1872-3), ii, 203.

49

J.M. Rigg (ed.), Calendar of the plea rolls of the exchequer of the Jews i: 1218-1272 (Jewish Historical Society of England, 1905), 4.

50

Mundill, King’s Jews, 149.

51

J.M. Rigg (ed.), Select pleas, starrs and other records from the rolls of the exchequer of the Jews, A.D. 1220-1284, Selden Society 15 (1902 for 1901), 3-4.

52

They were licensed to return in 1215 – Rot.Lit.Claus., 186.

53

PR 13 John (1211), 64.

54

Ib., 148.

55

Ib., 49.

56

Details from TNA, E 401/1564.

57

Rot.Lit.Claus., 132.

58

T. Arnold (ed.), Memorials of St Edmund’s Abbey, 3 vols. (Rolls Series, 1890-6), ii, 23.

59

Rot.Lit.Pat., 97.

60

Ib., 102.

61

Rot.Ob.Fin., 496-7.

62

TNA, E 163/1/8B, m. 4; Rot.Ob.Fin., 539.

63

Curia Regis Rolls vi, 1210-1212 (1932), 136, 217.

64

Bartlett, England under the Norman and Angevin kings, 353-4.

65

J. Stevenson (ed.), Radulphi de Coggeshall Chronicon Anglicanum (Rolls Series, 1875), 171.

66

J. Stow, A survey of London, ed. C.L. Kingsford, 2 vols. (Oxford, 1971), i, 38.

67

Holt, Magna Carta, 335-6.

68

J. Bradbury, Philip Augustus, king of France, 1180-1223 (1998), 51-3, 266.  The demands of the Lincolnshire knight Roger of Asterby, for which he claimed heavenly inspiration and which he communicated to Henry II, included the expulsion of the Jews from England – Bartlett, England under the Norman and Angevin kings, 357.

69

E 401/1564, mm. 3, 4.

70

See, for example, J.C. Holt, The northerners: a study in the reign of King John (Oxford, 1961), 166, 169-70.

71

Richardson, English Jewry, 139-41.

72

H. Rothwell (ed.), English Historical Documents iii, 1189-1327 (1975), 672.

73

Patent rolls of the reign of Henry III, 1216-1225, 157.

74

Rot.Ob.Fin., 600.

75

Rot.Chart., 165.

76

PR 16 John (1214), 31.

77

E 401/1564, m. 4d.

78

PR 3 and 4 Richard I (1191-2), 11.

79

PR 13 John (1211), 129.

80

Recorded E 401/1564, mm. 1d, 2d.

81

The principal stages in the development of this debt are recorded PR 7 Richard I (1195), 69; PR 3 John (1201), 131; PR 7 John (1205), 244; PR 16 John (1214), 169; PR 26 Henry III (1242), 192.

Referenced in

John deals with Loretta de Braose and Isaac of Norwich (The Itinerary of King John)


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Original Latin

XI

Et si quis moriatur, et debitum debeat Judaeis, uxor ejus habeat dotem suam, et nihil reddat de debito illo; et si liberi ipsius defuncti qui fuerint infra aetatem remanserint, provideantur eis necessaria secundum tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo servitio dominorum; simili modo fiat de debitis quae debentur aliis quam Judaeis.

11

And if anyone dies, and owes a debt to Jews, his wife is to have her dower and pay nothing towards that debt. And if there are surviving children of the deceased who are under age, their needs are to be provided for them in proportion to the dead man’s tenement, and the debt is to be paid from the residue, saving the service owed to the lords. Debts owed to others besides Jews are to be dealt with in like manner.

Audio commentary

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Commentary for academic researchers

Because it was felt necessary to provide a detailed analysis of King John’s policies towards English Jews in order to elucidate Clauses 10 and 11, they were originally discussed together, within a single extended commentary.  They have now been separated, but except at their beginnings and endings, the commentaries on the two clauses remain very largely identical.

(a) Purposes and application

Among the Articles of the Barons, numbers 34 and 35 were seemingly placed at random in a miscellaneous series of demands, occurring between one clause dealing with freedom to leave and enter the country, and another relating to the tenants of escheats.  Having regard to their content, the protection of the heirs and widows of men who died owing money to Jews, Clauses 10 and 11 of Magna Carta were much more rationally situated, after a sequence of clauses (2-8) primarily concerned with succession to property, with a particular emphasis on the rights of widows and under-age heirs, and a single clause (9) laying down the procedure for the payment of debts.  As part of this relocation, moreover, Article 35 was split into two, with its closing section, about the condition in which an heir coming of age could expect to receive an estate from its guardian, being detached to become the basis of the Charter’s Clause 5.

In fact the removal of the second part of Article 35 may have distorted the original tenor of the two articles, which as they appear in Magna Carta may seem more closely linked, through their common emphasis on the effects of Jewish money-lending, than was originally intended.  Article 34, like Clause 10 of Magna Carta afterwards, was indeed particularly concerned to control the accumulation of interest upon debts owed to Jews, something which the king, by virtue of his own over-riding authority where Jews were concerned, seems to have been able to exploit to an unacceptable extent.  But Article 35, which made no mention of interest, was in its original form primarily concerned with securing the rights and maintenance of widows and children, which might indeed be threatened by the effects of indebtedness to Jews, but were apparently no less imperilled by the demands of non-Jewish lenders (to whom the provisions of both Article 35 and Clause 11 of the Charter were specifically applied), and also - where an heir was concerned - by the greed or negligence of guardians.  This last possibility had been the subject of another clause (no. 3) in the `Unknown Charter’.  Its forming part of Article 35 suggests that it could be seen in a context to which indebtedness, whether to Jews or anyone else, had a particular relevance.  Its being finally redeployed to become the subject of a clause in Magna Carta in its own right made good sense on its own terms, but may have resulted in the detrimental effects of Jewish credit transactions being over-accentuated in the Charter, the more so when it was the subject of two consecutive clauses.

Although this was not spelt out in the Charter, Clause 11 was intended to benefit only free men and women.  Dower, for Glanvill, was `that which a free man gives to his wife at the church door at the time of his marriage’,1 while villeins could not pledge land to Jews.2  But within that category it was to be of universal application.  In this it reflected the importance both of the point at issue – the accumulation of interest on inherited debts to Jews – and also of the role that Jews had come to play in government finance during the twelfth century, and also of the consequences of these developments for landowning society as a whole.

(b) Kings and Jews, 1066-1199

There is no record of Jews living in England before 1066.  Their arrival after the Norman Conquest appears to have been the direct result of royal policy, arising from William I’s financial needs and his experience of dealing with a Jewish community in Rouen.  The close association of Jews with the crown proved lasting.3  Kings needed loans and taxes, Jews needed protection, against antagonisms arising both from their religion and from their financial activities, two currents of hostility which combined as a result of the near monopoly of the business of lending money at interest, a practice forbidden to Christians, which they had come to possess by around 1200.  The teaching of the Paris schools at that time, as expressed in writings like the Summa confessorum of Thomas of Chobham, was strongly disapproving of the association of kings and Jews - Thomas regarded the former as complicit in the usury of the latter, and expressed surprise that the church tolerated it.4  In fact the church had little choice but to do so, and the protection which successive English kings were able to give to Jewish communities was usually effective, so that their number grew during the twelfth century, gradually extending to most parts of the country.

Familiarity did not generate acceptance, however, and English Jews were exposed to intermittent outbursts of fierce violence, especially at times when preparations for crusades exacerbated feelings of enmity towards non-Christians.  Such feelings can only have been heightened, moreover, by repercussions from the crown’s increasingly intensive exploitation of Jewish resources.  Subservience and exploitation constituted the price which Jews paid for royal protection.  Their status in England around 1200, as recorded in the often ambiguous language of legal texts and government records, is hard to define and has often proved contentious.5  Passages in a mid-twelfth-century revision of the Leges Edwardi Confessoris, declaring that `the Jews themselves and all their possessions are the king’s ... if someone detains them or their money, the king shall demand them as his own property [tanquam suum proprium] ...’,6 in a charter for a favoured Jew issued in 1190, in which Richard I licensed Isaac, the son of Rabbi Josce, and his family to go where they wanted with all their chattels, `as our own property’ (sicut nostre res proprie),7 and in the legal treatise Bracton, of around 1230, which echoed the Leges Edwardi in stating that `The Jew can have nothing that is his own, for whatever he acquires he acquires not for himself, but for the king ...’,8 have been interpreted as treating Jews as akin to villeins.  The vulnerability of English Jews to royal demands, it is argued, resembled that of villeins with regard to their lords - `The lord could take anything his villein held, and the villein had no redress in the royal courts’.9  Efforts have been made to undermine the analogy, and though not all of them seem equally persuasive, it is certainly true that Jews had privileges, and indeed a special position in English society resulting from the inter-relationship of their religious identity and the royal protection which they needed as a result of it, unlike anything enjoyed by villeins.  What Jews and villeins did have in common was a comparative rightlessness with regard to king and lord, which even though it was not always, or even often, exploited to the full, was nonetheless always there, and capable of being manipulated to their disadvantage.  The king could impose an arbitrary levy – a tallage – on Jews, whenever and at whatever rate he pleased, could manipulate the debts owed to them, and was entitled to take a third of their possessions when they died.  Indeed, he was in a position to put well-nigh unlimited pressure on Jews, and the latter, making their living primarily by money-lending, had little option but to exert equal pressure on Christian debtors in order to raise the sums which the king demanded.

In fact, the threat to Christian resources posed by a combination of Jewish creditors and royal exactions was restricted at first.  The chronicler William of Newburgh, commenting on what he saw as Henry II’s unwarranted favour towards his Jewish subjects, associated this with the large advances he was able to extract from them,10 which until late in his reign were usually made in the form of loans.  In 1186 Henry signalled a change in policy by imposing a massive tallage, allegedly of £60,000, on Jewish communities, and swiftly followed this with two more, but not all the money was collected.11  When Aaron of Lincoln, the greatest Jewish financier of his generation, died, also in 1186, his entire fortune, in cash, valuables and bonds, was on unspecified grounds declared forfeit to the crown.  But despite a special branch of the exchequer being set up to handle Aaron’s debts, sums amounting to £15,000 were still owing when they were transferred to the regular exchequer five years later, and some £12,000 in 1201; the fact that no interest was charged on Aaron’s debts after they came into the king’s hands must have removed what might otherwise have constituted a strong incentive to debtors to clear their obligations.12  Henry II granted charters of rights to English Jews, probably early in his reign, and in 1190 these were implicitly confirmed by Richard I.13  The latter also made considerable demands on his Jewish subjects, imposing four tallages of a total of 10,000 marks during his reign,14 but his exactions were probably no greater than those which he made on everyone else.  Following the massacres of Jews at York and elsewhere in 1190, moreover, determined efforts were made to punish those responsible, and in 1194 the articles of that year’s eyre included one concerned with `the killers of Jews’, though it also attempted to secure what was due to the king from the debts and chattels of the slain.15

(c) King John: responding to opportunities, 1199-1207

The disturbances of 1190 seem to have affected only the Jewish communities of London, York, Lincolnshire and East Anglia, and for these they constituted a heavy blow.  For English Jewry as a whole, a no less important development was the appointment, in around 1194, of officials known at first as `keepers’, and then as `justices of the Jews’, who soon took charge of a special `exchequer of the Jews’, which administered many of the crown’s financial dealings with Jews and exercised jurisdiction over most disputes between Jews and Christians.16  Associated with this innovation was an ordinance commanding the listing of all the property of Jews, whether in debts, or gages, or lands and rents, and the establishment of six or seven offices at which Jewish loans were to be recorded on chirographs, of which one part was to be handed over to the lender, having first been sealed by the borrower, while the other part was stored in a specially made chest.  As a control upon their payment, all debts were also to be enrolled, and changes in their status noted.17  These measures may have originated in Hubert Walter’s concern for efficiency (since everything a Jew owned was potentially the king’s, it was essential that full records be kept of Jewish transactions and debts), but they also created what was potentially a formidable apparatus of oppression and exploitation.

Such terms are readily associated with King John, but in the early years of his reign his dealings with Jews were in most respects similar to those of his brother and father.  On 31 July 1199 he confirmed Jacob the Jew of London in his position of `presbyter of all the Jews of England’,18 and on 10 April 1201 (at a price of 4000 marks) he issued two charters in which he confirmed grants which Richard I had made to a single English Jew and extended them to all the Jews of England and Normandy.19  The first mostly upheld rights of residence, tenure and inheritance which Jews had enjoyed since Henry II’s time, while the second gave the Jewish community jurisdiction over disputes arising between its members, as long as these did not involve pleas of the crown. Two years later John responded forcefully to reports of injuries being inflicted on Jews in London, at a time when they were living in peace elsewhere in the kingdom.  He ordered the mayor and citizens to protect Jews against attack and warned them he would hold them responsible for any Jewish blood that was shed, `for we know well’, he concluded, `that such things occur on account of the half-wits (fatuos) of the town, and not of the prudent, and the wise ought to constrain the stupidity of fools.’

In taking so firm a line, John made it clear that he was more concerned for the maintenance of his peace than for the well-being of Jews - `nor indeed were we moved in that for the sake of the Jews but for that of our peace, because if we had given our peace to a dog, it ought to be inviolably observed ...’.20   In November 1204 he granted his peace, along with licence to come safely to England and remain there, to a Jew named Hanuchim, as reward for the latter’s good service under Roger de Lacy in the recently lost fortress of Château Gaillard,21 but at the beginning of that year, as French pressure on the duchy of Normandy intensified, John showed what treatment English Jews might be exposed to as a result of his financial needs.  On 30 January the sheriffs of several East Anglian counties were ordered to make `urgent distraints’ on Jews for their debts to the crown,22 and further exactions soon followed, intensified, perhaps, by the loss of Normandy, since the resources of Jews there, and especially of their principal community in Rouen, were no longer available for exploitation.  In April 1205 `our Jewish prisoners’ were among those excepted from the general pardon which, following the death of Queen Eleanor, and for the good of her soul, was granted to those held in the king’s gaols – their arrest is probably to be associated with some unrecorded levy.23

Here John can be seen turning the screw on the Jews themselves, but he was already well aware that indebtedness to Jews could also be exploited to his own advantage.  In 1204 – and possibly earlier, gaps in the records prevent certainty – he had begun to grant letters to Jews ordering that debts to them should be paid, and that the king should receive one bezant for every pound collected.24  The sums in question were almost always described as including interest by chirograph (cum lucro per cirographum), suggesting that the Jews concerned were taking steps to secure payments of debts recorded under the ordinance of 1194, with the interest being included with the principal when the relevant bonds were drawn up.25  No doubt the letters were directed to sheriffs, and led to their powers of coercion being put at creditors’ disposal – two Jews who in 1205 obtained letters of this kind against two men and a woman who owed them money in Dorset and Somerset subsequently accounted for the bezants they owed, specifically `for distraining’ upon their debtors.26  Since a bezant was valued at approximately two shillings, the king profited to the extent of receiving a ten per cent levy on every Jewish debt which was collected in this way, and he probably received a modest fee for issuing the initial letters as well.  This was a device capable of infinite extension – anybody who owed money to a Jew could be harassed into paying up through such means, regardless of his or her eminence.  Also in 1205, a Gloucester Jew named Bonevie accounted at the exchequer for seven bezants (valued at 14s.), payment `for having letters for ten marks [£6. 13s. 4d.] upon the earl of Hereford.’27  Perhaps the king or his agents regarded this as only fair-dealing; whether it was prudent to enable a Jewish creditor to pursue one of the great men of the realm in order to enrich the king by 14s. does not seem to have been a question they asked themselves, at any rate not for some time.  Such letters went on being issued at least until 1208, when a further lacuna concealed their use – they had ceased to be recorded by the time the sequence of fine and oblate rolls resumed in 1213.

The use of letters ordering distraints upon debtors to Jews illustrates how the pressure which King John exerted upon the Jews themselves could have an impact extending far outside the Jewish community.  Their leading role as money-lenders, in an inadequately monetarised society, meant that the number of men and women, of every social rank, who became indebted to Jews was always considerable, while the risks which credit transactions entailed were such as to keep interest rates high.  These were not in fact always recorded, it seems to have been common for interest to be included with the principal when the initial terms of payment were laid down, though separate payments of interest would become due if the terms were not met.  Where interest was due from the outset, the usual rate seems to have been twopence per pound per week – that is, forty-three and a third per cent per annum; threepence was not unknown, however, and in one exceptional case sixpence.28  Although evidence is scanty, the accumulation of interest on a loan could plainly be substantial.  In 1215 a debt of ten marks was found to have gathered a further seven marks in interest,29 while in 1204 one Richard de Scrupes was recorded as owing at least thirty marks in interest to Jews of Gloucester from whom he had originally borrowed twenty-five and a half marks (unfortunately in neither case is there anything to show how long it took for the interest to accrue thus).30  As already noted, when a king demanded money from Jews, it was inevitable that the latter should in turn apply pressure to their debtors for the payment of money owed to them, interest as well as capital, so that the king’s demands could be met.  The process of debt collection was itself potentially stringent and methodically carried out; when land pledged as security was seized by a creditor, everything on it was valued and then passed into the creditor’s hands, to constitute part of the repayment.

Throughout his reign John used the king’s controlling interest in Jews as an instrument of patronage.  He might grant a respite on the payment of, or pardon the interest due from, Jewish debts, perhaps in consideration of the overseas service which had led to those debts being contracted, or even remit a debt entirely – on 8 August 1202 the stroke of a quill pen cleared the earl of Arundel of all his debts to Jews up to the beginning of the month.31  He might accept payment for rescheduling a Jewish debt.  In 1205 Henry Bec undertook to pay the king either a horse or twenty marks, whichever John preferred, in return for an order that Henry’s debt to Ivo the Jew of Lincoln be paid off at the rate of £50 per annum.32  He might grant Jewish property to a friend or ally.  Several of the keepers, or justices, of the Jews, benefited in this way, for instance Simon of Patishall, who was given two messuages in Northampton in 1200,33 and Thomas de Neville, who in around 1212  disposed of `houses which belonged to Aaron the Jew of Lincoln which I have by gift of the Lord King John ...’.34  In 1214 John gave his henchman William Brewer three Jewish houses, in London, Northampton and Oxford, in a single grant.35  The properties in question were already in the hands of the king when he disposed of them, but John’s opportunities for making such gifts could be augmented if land pledged to a Jew for a debt escheated to the king when the Jew died – in 1201 Maurice of Askern, a Yorkshire landowner, gave ten marks and a palfrey for a searching inquiry into debts owed to Josce of York by his father, who had pledged land in Askern to him, `and if that land came into the king’s hand for any other reason than as an escheat by Josce’s death.’36

(d) Tightening pressure: the measures of 1207

During the first half of John’s reign his exploitation of Jewish resources was mostly opportunistic and occasional, while the collection of Jewish debts which had become the property of the crown remained the responsibility of the exchequer of the Jews, which seems to have approached its task with a notable lack of urgency.  Prior Geoffrey of Canterbury, detailing in 1198 the wrongs suffered by his monks in a bitter dispute with Archbishop Walter, alleged that `Jews are compelled against their will (etiam inviti) to extort violently from us what we owe them ...’37 – the impression conveyed is of faceless bureaucrats exploiting their control of Jewish creditors to exert pressure from afar.  From 1207 the advantages of an oblique approach to debt collection were increasingly discarded, and King John’s own direct responsibility for fiscal pressure became all too clear.    That year saw both further demands on the English Jewish community, and determined efforts to collect Jewish debts which had passed into the king’s hands.  One tallage, of 4000 marks, was of less consequence than another, of a tenth of the value of each Jew’s bonds, this being backed by a record of those bonds which was to be deposited in the exchequer – from now on John had immediate access, at the centre of government, to up-to-date information about the resources of English Jews.38

The possible consequences for John’s subjects, Jews and Christians alike, can be illustrated from the case of Henry Lovel, who in 1208 proffered eighty marks and a palfrey to be cleared of the debt which his father, another Henry, who died in 1194, and his brother Ralph, who had died in the previous year, owed to Vives, a son of Aaron of Lincoln.39  For the purposes of the tenth Vives had valued the debt at 200 marks (£133. 6s. 8d.), and as part of the deal Lovel agreed to pay £78. 1s. 4½d. to the king, thereby settling a debt which Vives owed the crown, while he negotiated a settlement with Vives over the rest of the money (£55. 5s. 3½d.) – it may be doubted if Vives received so much, since it was stipulated that when he accounted with Lovel the latter was to be allowed any money already paid towards the settlement of his family’s debt, and three years earlier Ralph Lovel complained that Vives had been holding the Lovel barony of Castle Cary but had failed to acknowledge his receipts from it.  The net result was that John gained by accepting Henry Lovel’s fine, and also by being paid money owed him by Vives.  Lovel became clear of an inherited debt to Vives, but at the price of becoming more heavily indebted to the king than he had been before, altogether owing £331. 3s. 7d. and seven palfreys, which he was expected to pay off at the rate of 100 marks per annum.  Vives was cleared of a debt he had owed the king, but probably lost on the Lovel family debt – perhaps John or his advisers reckoned that he had understated the amount owed, and punished him by accepting his own estimate, so that he received, or was allowed, less than the full value of the debt.

At the same time the collection of the debts of Aaron of Lincoln was reactivated.  Although some of them were by now so old as to be regarded as well-nigh hopeless,  Aaron’s son Elyas, most likely yielding to force majeure,  gave 200 marks for having £400 worth of his father’s `worse bonds’, ones which had not been cleared `and which are worth less to the lord king’, and then a further three gold marks for a better deal, `for having such bonds as may be productive and from which profit may accrue to him’.40  Recorded payments show that while some of the bonds which Elyas chose were indeed likely to yield a safe return – Roger de Ginges, for instance, charged with £7 in 1208, had owed £26. 11s. in 1197, and had been steadily paying off his debt in the intervening years – others had done little to clear their debts since these were first recorded.  But it was essential for Elyas, if he was to profit from his bargain with the crown, that other men, for instance Robert de Gant, who had owed Aaron £26 in 1191, but had paid nothing at all since then, and Gilbert de Coleville, whose original debt of £70. 6s. 8d. (recorded in no less than nine bonds) had been reduced by just £5. 6s. 8d. in twenty-one years, should now pay up.41  Such men must have found the pressure they now came under to settle these aging debts, after years of tacit acquiescence in their non-payment, to be highly unwelcome if not actually offensive.

Jewish creditors and their debtors alike looked to the king for support and protection, which John duly supplied, at a price, at least once to both parties to the same contract.  In 1207 Isaac the son of Cresselinus gave £5 to be put in possession of the estate at Rushall, Wiltshire, of Fulk de Alno, who owed Isaac money, only for Fulk to give four palfreys to have the order revoked, by reference to a deal he had previously made with the king for paying his debt.42  Later that year Roger of Berkeley paid sixty marks for an inquest into the value of certain of his lands which had been pledged to, and were now occupied by, Jews of Bristol and Gloucester, with the object of recovering the lands and then paying their annual value to his creditors until his debt was paid.43  If the king required the service due from the land in the mean time, that was to be given priority over the payment of the debt – a proviso in keeping with that made by Clause 11 in 1215, laying down that when debts to Jews were paid, resources were to be kept in hand to enable the performance of services due to the lord.  But in Berkeley’s case (unlike Magna Carta) it was stipulated that the Jews were not be the losers from these arrangements – perhaps the creditors demanded this, with an eye to the royal exactions which may well have impelled them into foreclosing on Berkeley in the first place.  In 1208 Samuel son of Dieudonné made an agreement with the king to have royal support in raising money owed him by Richard Basset of Great Weldon; the fact that John’s price was a third of the entire debt gave him an interest in its collection almost as great as Samuel’s, and identified him closely with the methods used to raise the money – unsurprisingly, Basset was among the baronial rebels at the end of the reign.44

Another such rebel was Henry d’Oilli of Hook Norton, Oxfordshire, who accounted for £1015. 7s. 11d. for a debt to Simon the Jew of Oxford which had been taken into the king’s hand, probably in the previous year.  After making an initial payment of fifty marks, Henry agreed to pay 100 marks per annum until the debt was cleared, on condition that if he fell behind in his payments the bond recording the debt was to be returned to Simon, and whatever Henry had paid the king was to be regarded as lost, while Simon would presumably start exacting what was owed him all over again.45  Henry d’Oilli’s bond was entrusted to the chancellor, Walter de Gray, who as another Oxfordshire man would have been well placed to know the details of Henry’s circumstances.  Gray was just one of John’s agents to be active at this time on their master’s behalf, targeting Jews – in 1207 year Simon son of Jacob, a Jew of Northampton, gave 100 marks to have all his father’s lands, chattels and debts, reserving to the king `his debts and tallages and his third which Jacob owed the lord king, and his gold and silver found after his death’ (perhaps Simon was suspected of having tried to conceal some of his late father’s valuables)46 – and Christians alike, especially those who had owed money to Aaron of Lincoln.  Late in 1208 order was given that all the lands of those in arrears with such debts should be taken into the king’s hand.47

(e) Going to extremes, 1210-1215

All this was bad enough, both for the Jews and for those who owed them money, but the pressure exerted upon both became heavier still in 1210.  In the spring of that year order was given for the arrest of Jews throughout England and their imprisonment at Bristol,48 where, according to Wendover, they were harassed and tormented into putting their wealth at the king’s disposal; one unhappy man, who refused to pay the 10,000 marks demanded of him, had one of his teeth knocked out each day for a week, finally saving the rest when on the eighth day he agreed to pay up.49  According to Gervase of Canterbury (one of a number of chroniclers to record the financial assault on English Jews, which clearly made a considerable impression), others were hanged or blinded, presumably for resisting the king’s demands.50  This brutality was accompanied by the seizure of all records of debts owed to Jews, and was followed, late in the year, by an unprecedentedly heavy tallage, said during pleadings in the exchequer of Jews in 1218 to have amounted to £40,000.51  The cruelty of the initial attack on Jews may have been randomly inflicted, but the tallage was methodically raised.  Presumably in order to benefit from their inside knowledge, Jews were themselves employed as agents of collection (something which can only have further demoralised the Jewish community),52 and doubtful cases were carefully investigated.  Uncertain, following the arrest of Jews, as to which of two men named Walter of Thorpe owed £14 to Isaac of Norwich, the king’s justices sent messengers, seemingly from Bristol, to Isaac, who had been imprisoned in the Tower of London, to discover the identity of the debtor `from his own mouth’.53  Unable either to hide from the king’s collectors, or to meet the king’s demands, many poor Jews fled overseas.54

Debts to Jews which were taken over by the king were no less assiduously pursued.  Although the wording of the records is often perfunctory and obscure, it would appear that lands pledged to Jews for the payment of debts, and the estates of debtors to Jews whose obligations had come under the king’s control, were alike liable to seizure.  In 1211 three west-country men undertook to pay 500 marks on behalf of John de Montagu, lord of the Somerset barony of Chiselborough, and obtained possession of his land quia in rotulo Judeorum,55  and in the same year William of Windsor had to find £100 to recover his lands, taken into the king’s hand de debitis Judeorum, and then pay 100 marks per annum to clear the debts themselves.56  Some men, indeed, had to sell their lands in order to meet royal demands arising from Jewish debts.  Gilbert FitzReinfrey, the sheriff of Yorkshire, paid £100 to Richard of Middleton for all his land at Middleton and Kneeton `in clearance of the debt he owed the king for debts to Jews’, and then gave 6s. 8d. to have the transaction entered on the pipe roll as an authoritative record (Gilbert was later recorded as paying Richard’s debt into the exchequer).57  In the aftermath of the 1210 tallage a great many debts to Jews had fallen into the king’s hands, and these, too, were methodically pursued.  A surviving roll from around 1212, although damaged, records the regularised payments made by Jews, but also, and in far greater numbers, by Christians, from Norfolk and Suffolk, Bedfordshire and Buckinghamshire, Northamptonshire, Gloucestershire, Berkshire, Essex and Hertfordshire, Hampshire, Cambridgeshire and Huntingdonshire, Yorkshire, Lincolnshire, Wiltshire, Dorset and Somerset, Sussex, London and Middlesex, Surrey, Devon, Oxfordshire, Kent, Warwickshire and Leicestershire, and the city of York.58  Only the far north, the far south west, and the Welsh marches are unrepresented.  A few of the sums involved were relatively substantial, between £15 and £45, but many were small, recorded only in shillings.  Among the debtors from East Anglia, for instance, were Stephen Blundus, owing 4s. for his mother Agnes, Henry the son of Robert of Bungay, owing 6s. 8d., and Basilea de Friville, who owed 10s.  None of the debts entered on this roll can be identified among those owing to Aaron of Lincoln, rather they all appear to have been recently incurred, but whatever their size they were all now being collected.  The process is unlikely to have made King John any friends, and indeed, in the insignificance of the debtors, and the smallness of the sums they owed, it shows how far down society the impact of Jewish money-lending, and also of the king’s pursuit of the resulting debts, had by now extended.

The king seems to have sensed that his exploitation of Jewish debt was arousing resentment, for on 18 August 1212 he instructed all the sheriffs of England to cause `all debtors of Jewish debts’, except earls and barons, to come before him, so that their debts could be lightened, possibly by confining them to the principal owed.59  But the relief seems to have been short-lived, for in the same year Richard Marsh, one of John’s leading advisers, was recorded as `shamelessly’ (improbissime) collecting Jewish debts, with interest, from everyone,60 and in February 1213 John seems to have been planning further demands on Jews and their debtors, for he appointed commissioners who were not only to investigate official misconduct in Lincolnshire and Yorkshire but were also to inquire into `who have held the gages [vadia] of Jews and from what time and by what have they held them and how much they are worth and the names of each of the pledges.  And do you also let us know the houses and demesnes of Jews and which demesnes they have held at fee and which yearly and of whom they have held them and how much they have rendered for them and how much they are worth more than they have rendered ...’.61  In July that year efforts were being made to collect arrears from the tallage of 1210.62  There could be some easing of pressure in favoured cases, for instance Robert de Ros, cleared of Jewish debts worth eighty marks in November 1213,63 or Simon of Kyme, who in around 1212 negotiated a settlement of an accumulated debt of nearly £1275, of which £419. 11s. 6d. was interest, and who in 1214 was also granted respite of payment of a Jewish debt of 700 marks inherited from his father.64  But others enjoyed no such let-up.  There is no evidence, for instance, that any remission was granted to Eustace de Vescy of his alleged debt of £50 de Judeis.65

(f) Magna Carta and the Jews

Vescy, Ros and Kyme all rebelled in 1215, along with many other landowners who had suffered from John’s exploitation of Jews and the debts owed to them.  As for the Jews themselves, they suffered both from that exploitation and from the enforced closeness of their association with the king’s money-raising methods, which can only have intensified the antagonism already felt towards them on religious grounds.  The theologian William de Montibus, who was for some twenty years chancellor of Lincoln Cathedral, pinpointed this aspect of the relationship between king and Jews when he characterised the latter as `the sponges of the king.  They are blood-suckers of Christian purses, by whose robbery kings despoil and deprive poor men of their goods.’66  When the barons captured London on 17 May 1215, they immediately demolished Jewish houses and used the materials to strengthen the city’s defences.67  (According to the sixteenth-century antiquary John Stow, when the Ludgate gate was rebuilt in 1586, a stone engraved in Hebrew letters with the name of Rabbi Moses, the son of Rabbi Isaac, was found embedded in the ancient masonry, a discovery plausibly associated by Stow with the baronial action.)68  But although the king’s enemies must have felt that they had more than sufficient reason for resenting the ways in which John had used his control of English Jews and their resources at his subjects’ expense, they placed remarkably few constraints upon them in Magna Carta – Clause 11 dealt with what can have been only a relatively insignificant weapon in the formidable armoury of extortion and oppression which control of Jewish finance had placed at King John’s disposal.69  Provision was made for the dismissal of the king’s foreign mercenaries, but no similar order was given for the expulsion of Jews, although the idea seems to have been in the air, and had indeed been briefly implemented in the Île-de-France in 1182 (the Jews expelled in that year were allowed to return in 1198).70

One reason for the near total absence of references to Jews in Magna Carta may have been an understanding that their financial skills, particularly where credit transactions were concerned, and their ability to provide ready money at a time when supplies of hard cash were limited, were socially and economically indispensable.  Landowners of all ranks needed access to their expertise and resources, and were certainly not above exploiting the indebtedness to Jews of their Christian neighbours in much the same way that the king did.  Among the men who owed Jewish debts to the king in the years immediately before  Magna Carta were Roger Bigot, earl of Norfolk (one of the twenty-five barons charged with overseeing the implementation of the Charter), recorded as paying £20 on behalf of the heirs of William de Pirho and debts totalling £9 10s. for Robert de Auvilers, William d’Aubigny, earl of Arundel, who paid £10 of the debts of the Lincolnshire baron Robert of Tattershall, and the justice Simon of Patteshall, charged with £15 `for the fine of Robert de Broy’;71 these men, and others like them, had presumably been buying up Jewish debts, no doubt at a discount, and then either collecting them or foreclosing on them, in either case to their own advantage.  Religious houses notoriously expanded their estates in the same way.72  It was unlikely that lay and ecclesiastical lords would willingly forego the employment of such techniques, even though they might also be used to their own detriment, and they might well have been reluctant to deny the king practices which they exploited themselves.  It is also possible that there was a growing feeling that action against Jewish usury was something best left to the church, which had more than once forbidden Jews to take interest on loans made to crusaders,73 while a ban on the taking of excessive interest from Christians by Jews appeared among a number of restrictions placed upon the latter by the decrees of the fourth Lateran Council later in 1215.74

But the main reason for the lack of substantive action was most likely a feeling – one surely felt, and vigorously expressed, by King John - that the treatment, and exploitation, of Jews was too integrally a part of the royal prerogative to be easily separated from it. Writing to the sheriff of Herefordshire in June 1218 (and also to a number of other sheriffs and officials), Henry III’s minority government ordered him to ensure that `our Jews’ were able to live in Hereford, `as they used to do in the time of King J. our father’, and that he was to permit nobody to molest them, not least the bishop of Hereford, `because our Jews are no concern of his.’75  In every respect Jews were to be treated as they had been in the previous reign, when they had been no less `our Jews’, and when the king’s charter of 1201 had licensed Jews to go wherever they wished `with all their chattels as [if they were] our own’.  It was probably because they shared John’s belief that Jews were in some sense a royal monopoly, or at any rate were forced by the king’s recalcitrance to accept it, that the barons confined themselves to protecting only the most vulnerable of the potential victims of Jewish money-lending – the widows and under-age children of debtors to Jews – with the result that action against other debtors continued to be taken as before.  When he was at Gloucester in August 1216 John was no doubt happy to receive a payment of 60s. to have a Jewish widow provided with a writ `for making distraint for the debt of £9 with interest which Henry the burgess owes her, as she says.’76  Even Clause 11 may quickly have come to be regarded as amounting to an unwarranted infringement of royal rights, for no equivalent clause appeared in any of the reissues of Magna Carta.

(g) Clause 11

Clause 11 extended the protection given by Clause 10 to under-age heirs to all a landowner’s children, by ordering that they be maintained from their inheritances in a manner appropriate to the latter’s value, with only the residue being drawn upon for the payment of debts, whether these were owed to Jews or Christians.  And the widows of debtors to Jews were also protected, by the stipulation that they were to receive their dowers, customarily a third of a husband’s estate, without any part of the debt being levied upon them.  In fact it would appear that a widow’s right to her dower was nominally protected already.  The Dialogue of the Exchequer ruled concerning debts owed to the king that `the wife who survives her husband and has children, and remains with them in her widowhood, should be summoned and distrained on behalf of the children who are due to inherit, but not for her dower, which is her reward [i.e. given her in return] for her chastity’,77 and the same protocols seem to have applied to Jewish debts which had passed into the king’s hands.  Graelengus de Marisco, responding in 1198 to an action by Galiena, widow of Geoffrey de Marisco, for a carucate of land in Wennington, Essex, as part of her dower, claimed that the land in question was no part of Galiena’s dower, `but she was dowered from land at Wennington marsh of the fee of [the abbot of] Westminster, and that after Geoffrey’s death that land was seized into the hands of Jews for Geoffrey’s debts, and Galiena delivered the land from them as her dower ...’.78  The contested issue seems to have been where the disputed property was, and Galiena did not dispute Graelengus’s assertion concerning her recovery of her dower from Jews.  In 1201 a woman named Cecilia, the widow of Terricus, sued two Jews for two messuages in London, `which she claims in dower’; the fact that when the defendants did not come, order was given in the usual way for the properties to be taken into the king’s hand, suggests that the justices saw nothing anomalous in the action.79

The fact that lands pledged for debt might not only pass into the hands of Jews but could also then be transferred by them to others sometimes led to difficulties.  Matilda, widow of Ralph de Tiville, claiming the Norfolk manor of Intworth as her dower in the common bench in 1220, found that its current holders were merely the tenants of Isaac of Norwich, to whom her own father-in-law, another Ralph de Tiville, had conveyed it as a pledge, while Ralph senior, who had already demanded the manor himself in the exchequer of Jews, then further complicated matters by describing how he had undertaken to pay King John £120 for the recovery of the manor, probably in 1212, and had paid £21. 13s. 4d. into the exchequer before the outbreak of civil war.  And he successfully claimed that he had been wrongfully dispossessed of Intworth in favour of Isaac’s tenants at an eyre held in Norfolk in 1219, so that proceedings finished with Ralph being put back in occupation of the manor and Matilda being told to sue against him if she wished (the case was ended by a settlement in the following year), while Isaac was referred to the exchequer of the Jews.80

In his dealings with King John, Ralph senior does not seem to have given any thought to his daughter-in-law’s right to dower, and it may be assumed that the issue was not raised by the king either.  In any case neither custom nor legality could be relied upon as a defence against royal demands.  In an unfortunately damaged entry from 1214, Mary, widow of Adam of Tolworth, sued Robert le Grant for a third of forty acres in Tolworth; the defendant vouched Robert son of Adam, presumably Mary’s son or stepson, to warranty, and this second Robert acknowledged his own charter, but added that `his father’s land was seized into the king’s hand for debts to Jews which his father owed them ...’.81  The implication of Robert son of Adam’s statement is that his father was dead when the lands were seized, so that although the state of the document makes it impossible to be certain that this was so, his plea apparently shows land being taken by the king for Jewish debt without consideration for any rights to dower that might be annexed to it.  Nor may this have been the only way in which widows found it had difficulty securing their dowers, once the issue was obscured by the issue of Jewish debt.

As Clause 7 of Magna Carta showed, women also needed help in obtaining both their inheritances and their marriage portions, and such assets were probably easily confused, or treated together with, dowers, especially by the agents of an exigent and unscrupulous king.  In 1208, for instance, Margaret de Lucy, the widow of a Dorset landowner, gave five marks to have her inheritance, which Robert her husband had given in pledge to Jews (probably Aaron of Lincoln), on the understanding that the latter would in due course apply to Robert’s heir for his father’s debt (as stipulated by the Dialogue of the Exchequer), having earlier proffered forty marks to have her dower, the land which was hers by right and inheritance, and for the right to remain unmarried.82  In such a case, a widow’s various rights were hardly distinguishable from one another, and all came under threat together.  But in financial terms Margaret de Lucy escaped lightly compared with Margaret, the daughter of William de Chesney of Blythborough, and wife of Robert FitzRoger of Whalton.  Her father, who died in 1174, had been indebted to Jews, and in 1208 Robert obtained quittance for life from the king of all the Jewish debts for which his marriage would otherwise have made him responsible.83  But Robert died in 1214, and those debts now became the responsibility of his widow, who in December that year had to proffer £1000 for her inheritance, `and that for all the days of her life she may have peace for the debts to Jews which her father owed in his lifetime, and that she may have her dower according to the custom of our kingdom of England ...’.84  Again, dower and other rights seem to have been treated as parts of a single package.

It is unfortunate that although the roll of Jewish debts from John’s latter years show a number of widows as accounting for money owed – Matilda, the widow of John of Ludham, paid 40d., for instance, Claricia the widow of Roger 2s. 4d.85 – they contain nothing to show whether such payments were exacted from their dowers or not.  And they are no more informative about the sums paid by heirs.  It is possible that Robert Aguillun’s payment of five marks on behalf of the heirs of William de Fresney, or Ralph de Normanville’s probably regular payments of £44 for the debts of William de Mountchesney, the elder brother of the Warin de Mountchesney noted above as paying 2000 marks to enter his inheritance free of Jewish debt,86 so reduced the funds available for the maintenance of the heirs in question as to leave them inadequately provided for, but the records do not say so.  Similarly when in 1211 John FitzHugh, one of John’s principal agents, paid £100 for the wardship of the lands and heirs of Walter FitzGodfrey, seemingly a relatively minor royal servant, with interests in several counties but no extensive estates in any of them, and on top of that undertook to pay a further £100 to cover Walter’s debts to the king, of which £80 were owed pro debito Judeorum,87 one is bound to wonder how much would have been left over for the subsistence of the heirs, but again, speculation is all that is possible.  There can indeed be no doubt of the accumulative impact which Jewish debts had upon those afflicted by them, and by the king’s manipulation of them, but these particular manifestations of the hardships they imposed are most clearly illustrated by the clauses in Magna Carta intended to eliminate them.  Perhaps they were not in fact inflicted very often, or perhaps they came to be regarded in the same equivocal light as the king’s rights over Jews as a whole, for Clause 11 was dropped from later reissues of the Charter.

1

G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 58-9.

2

P.R. Hyams, King, lords, and peasants in medieval England (Oxford, 1980), 39.

3

For context I have relied throughout principally on H.G. Richardson, The English Jewry under Angevin kings (1960), and R. Bartlett, England under the Norman and Angevin kings, 1075-1225 (Oxford, 2000), 346-60.

4

J.W. Baldwin, Masters, princes and merchants: the social views of Peter the Chanter and his circle, 2 vols. (Princeton, 1970), i, 298-9; F. Broomfield (ed.), Thomae de Chobham summa confessorum, Analecta Medievalia Namurensia 25 (Louvain and Paris, 1968), 510.

5

See particularly P.R. Hyams, `The Jewish minority in medieval England, 1066-1290’, Journal of Jewish Studies 25 (1974), 270-93, at 287-8; id., `The Jews in medieval England’, A. Haverkamp and H. Vollrath (eds.), England and Germany in the high middle ages (Oxford,1996), 173-92, at 182; A. Patschovsky, `The relationship between the Jews of Germany and the king (11th-14th centuries).  A European study’, ib., 193-218, at 208 n. 50, 215-16; G. Langmuir, `Tamquam servi: the change in Jewish status in French law about 1200’, M. Yardeni (ed.), Les Juifs dans l’histoire de France: premier colloque international de Haïfa (Leiden, 1980), 24-54, at 34-5.  Langmuir draws attention to possible ambiguities in texts and records, but his own interpretation of them often seems strained and unconvincing..

6

B.R. O’Brien, God’s peace and king’s peace: the laws of Edward the Confessor (Philadelphia, 1999), 184-5, with comment at 93-7.

7

T. Rymer (ed.), Foedera I:i (1816), 51.

8

Sir F. Pollock and F.W. Maitland, The history of English law, 2 vols. (2nd edn., Cambridge, 1898), i, 468.

9

Hyams, King, lords, and peasants, 20.

10

R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II and Richard I, 4 vols. (Rolls Series, 1884-9), i: William of Newburgh, Historia rerum Anglicarum, i, 280.

11

Richardson, English Jewry, 162-3.

12

R.R. Mundill, The king’s Jews: money, massacre and exodus in medieval England (2010), 21-2.

13

Details in P.A. Brand, `Jews and the law in England, 1275-90’, English Historical Review 115 (2000), 1138-58, at 1138-9.

14

Richardson, English Jewry, 164-5.

15

Bartlett, England under the Norman and Angevin kings, 360; W. Stubbs (ed.), Chronica Rogeri de Houedene, 4 vols. (Rolls Series, 1868-71), iii, 263-4.

16

R.C. Stacey, `Jews and Christians in twelfth-century England’, M.A. Signer and J. Van Engen (eds.), Jews and Christians in twelfth-century Europe (Notre Dame, 2001), 340-54, at 348-9.

17

Chronica Rogeri de Houedene iii, 266-7.

18

T.D. Hardy (ed.), Rotuli chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 6-7.

19

Ib., 93; T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 133.

20

T.D. Hardy (ed.), Rotuli litterarum patentium 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 33.

21

Ib., 47.

22

Ib., 38.

23

Ib., 58.

24

The earliest noticed is Rot.Ob.Fin., 197.

25

See Richardson, English Jewry, 69.

26

PR 7 John (1205), 140; Rot.Ob.Fin., 296-7.

27

PR 7 John (1205), 98.

28

Details from Richardson, English Jewry, 70.

29

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus.), 220.

30

PR 6 John (1204), 150.

31

Rot.Lit.Pat., 16.

32

Rot.Ob.Fin., 52.

33

Rot.Chart., 52.

34

J.C. Davies (ed.), The cartae antiquae, rolls 11-20, Pipe Roll Society new series 33 (1960), no. 366 (pp. 50-1)

35

Rot.Chart., 200.

36

Rot.Ob.Fin., 122.

37

W. Stubbs (ed.), Chronicles and memorials of the reign of Richard I, 2 vols. (Rolls Series, 1864-5), ii: Epistolae Cantuarienses, 450.

38

R.C. Stacey, `The English Jews under Henry III’, P. Skinner (ed.), The Jews in medieval Britain: historical, literary and archaeological perspectives (Woodbridge, 2003), 41-54, at 41.

39

Details from PR 10 John (1208), 113; Rot.Ob.Fin., 314; Rot.Lit.Claus., 112-13; R.A. Brown (ed.), The memoranda roll for the tenth year of the reign of King John, 1207-8, Pipe Roll Society new series 31 (1956), 36-7.

40

Rot.Ob.Fin., 420, 436.

41

PR 10 John (1208), 4, 27, 80-1.

42

Rot.Ob.Fin., 378, 390.

43

Ib., 400.

44

Ib., 425.  For Basset as rebel see Rot.Lit.Claus., 327.

45

PR 10 John (1208), 139.  D’Oilli was n rebellion by November 1215 – Rot.Lit.Claus., 237.

46

Rot.Ob.Fin., 391.

47

Rot.Lit.Claus., 98.

48

Richardson, English Jewry, 168-72; Stacey, `English Jews under Henry III’, 43.

49

H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum, 3 vols. (Rolls Series, 1886-9), ii, 54-5.

50

W.Stubbs (ed.), The historical works of Gervase of Canterbury, 2 vols.  (Rolls Series, 1879-80), ii, 105.  Other chronicles to record these events include H.R. Luard (ed.), Annales Monastici, 5 vols. (1864-9), i (Annals of Margam), 29, and W. Stubbs (ed.), Memoriale fratris Walteri de Coventria, 2 vols. (Rolls Series, 1872-3), ii, 203.

51

J.M. Rigg (ed.), Calendar of the plea rolls of the exchequer of the Jews i: 1218-1272 (Jewish Historical Society of England, 1905), 4.

52

Mundill, King’s Jews, 149.

53

 J.M. Rigg (ed.), Select pleas, starrs and other records from the rolls of the exchequer of the Jews, A.D. 1220-1284, Selden Society 15 (1902 for 1901), 3-4.

54

They were licensed to return in 1215 – Rot.Lit.Claus., 186.

55

PR 13 John (1211), 64.

56

Ib., 148.

57

Ib., 49.

58

Details from TNA, E 401/1564.

59

Rot.Lit.Claus., 132.

60

T. Arnold (ed.), Memorials of St Edmund’s Abbey, 3 vols. (Rolls Series, 1890-6), ii, 23.

61

Rot.Lit.Pat., 97.

62

Ib., 102.

63

Rot.Ob.Fin., 496-7.

64

TNA, E 163/1/8B, m. 4; Rot.Ob.Fin., 539.

65

Curia Regis Rolls vi, 1210-1212 (1932), 136, 217.

66

Bartlett, England under the Norman and Angevin kings, 353-4.

67

J. Stevenson (ed.), Radulphi de Coggeshall Chronicon Anglicanum (Rolls Series, 1875), 171.

68

J. Stow, A survey of London, ed. C.L. Kingsford, 2 vols. (Oxford, 1971), i, 38.

69

Holt, Magna Carta, 335-6.

70

J. Bradbury, Philip Augustus, king of France, 1180-1223 (1998), 51-3, 266.  The demands of the Lincolnshire knight Roger of Asterby, for which he claimed heavenly inspiration and which he communicated to Henry II, included the expulsion of the Jews from England – Bartlett, England under the Norman and Angevin kings, 357.

71

E 401/1564, mm. 3, 4.

72

See, for example, J.C. Holt, The northerners: a study in the reign of King John (Oxford, 1961), 166, 169-70.

73

Richardson, English Jewry, 139-41.

74

H. Rothwell (ed.), English Historical Documents iii, 1189-1327 (1975), 672.

75

Patent rolls of the reign of Henry III, 1216-1225, 157.

76

Rot.Ob.Fin., 600.

77

E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 173.

78

Curia Regis Rolls vii, 1213-1215 (1935), 339.

79

Curia Regis Rolls i, temp. Richard I-1201 (1922), 417.

80

Details from Curia Regis Rolls viii, 1219-1220 (1938), 306-7; ix, 1220 (1952), 153-4; Rigg, Calendar of plea rolls of the exchequer of the Jews, 34-5.  See also Richardson, English Jewry, 144.

81

Curia Regis Rolls vii, 269-70.

82

PR 10 John (1208), 110; Rot.Ob.Fin., 436.

83

Rot.Lit.Pat., 85.

84

Rot.Chart., 203; PR 16 John (1214), 175.

85

E 401/1564, mm. 2, 4.

86

Ib., mm. 3, 4.

87

PR 13 John (1211), 202.  For Walter see e.g., PR 7 Richard I (1195), 229; PR 10 Richard I (1198), 194; Rot.Lit.Claus., 81, 88, 89; Rot.Chart., 114.

Referenced in

John deals with Loretta de Braose and Isaac of Norwich (The Itinerary of King John)


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Original Latin

XII

Nullum scutagium vel auxilium ponatur in regno nostro nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum militem faciendum, et ad filiam nostram primogenitam semel maritandam, at ad haec non fiat nisi rationabile auxilium; simili modo fiat de auxiliis de civitate Londoniarum.

12

No scutage or aid is to be imposed in our kingdom except by the common counsel of our kingdom, unless for the ransoming of our person, and knighting of our first-born son, and for marrying, once, our first-born daughter, and for these only a reasonable aid is to be taken. Aids from the city of London are to be treated in like manner.

Audio commentary

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Commentary for academic researchers

Aims and means

Clause 12 has been condemned as unsatisfactory, especially for its confusion of terms as it attempted to mount a unified attack on financial instruments which were related only by their being important components of King John’s fiscal armoury.1  The criticism is easily justified, not least by the Clause’s failure to survive into later reissues of Magna Carta.  That said, the flexible and improvisatory nature of Angevin government, which could make abuses of power very hard to identify with exactness, was such that probably only a broad-brush attack on the king’s methods, one which gave the barons a general control over what they saw as his tools of financial oppression, had any chance of success.  This Clause 12 attempted to achieve, by targeting two of John’s main instruments of taxation and subjecting them to tight constraints.  It may have failed (though the extent of its failure has probably been exaggerated), but it is not easy to see how in the circumstances of 1215 the barons could have done much better.

The potential for difficulties was there from the start.  The bulk of Clause 12 appeared as number 32 among the Articles of the Barons, where its content relating to London no doubt accounted for its coming between two articles relating to trade.  In Magna Carta these two became Clauses 41 and 42, but the two articles which followed them (34 and 35), which were largely concerned with the effects of indebtedness to Jews, were moved up to become Clauses 10 and 11 of the Charter, with what had been Article 32 immediately behind them, so that these three formed part of a group of clauses primarily concerned with John’s exploitation of his traditional rights in order to raise money.  The effect of this transfer was weakened, however, by the treatment of the London material in what had been Article 32.  As finally drafted, Clause 12 placed strict controls on the king’s right to demand the levies known as aids and scutages, in terms applicable to the tenants-in-chief, but where aids were concerned extended them to the city of London.2 Article 32 had spoken of tallages as well as aids, so extending the restriction to the arbitrary levies which the king was traditionally entitled to impose, as and when he chose, on cities, boroughs and demesnes over which he exercised lordship.  Clause 12 made no mention of tallages, however, and hived off the rest of the Article to form Clause 13.  This confirmed the city in its ancient liberties, and extended the grant to `all other cities, boroughs, towns and ports’, but made no reference to taxation, so that this clause appears, rather awkwardly, as an irrelevant pendant to Clause 12, one which separated it from its natural accompaniment of Clause 14. 

Clause 14 (which had no equivalent among the Articles) completed Clause 12 by specifying how, and by whom, taxation was to be assessed in future, and was itself followed by two further clauses relating to taxation.  The first of these dealt directly, the second by implication, with the rights of sub-tenants – the levying of aids and scutages had effects which extended beyond the magnates.  It was in fact Clause 16 which spelt out one of the grievances which Clause 12 was directed against, one especially related to scutage, namely John’s misuse of his power to demand more in service, or for commutation of service, than those subjected to it actually owed him.3  For this Clause 12 attempted to provide the remedy, but without defining the grievance.  The other issue was that of consent, and on this point – at least in the eyes of posterity – the barons went some way towards undermining their own case by treating aids and scutages as if they were somehow the same, so that they could be appropriately resisted or controlled together.

Problems of definition

Strictly speaking they were not identical.  Scutage was the sum charged by the king in commutation of the military service owed by a tenant-in-chief.  Originating in the late eleventh century, it was traditionally assessed on the knight’s fee, at a rate decided on by the king, in accordance with his perception of his own military needs - it was for him to summon the feudal host, and when he did so to decide who should serve in person, and who was to be allowed to pay in lieu of service, and what the relevant payment should be.  An aid was in its origins little more than an adjunct of lordship, and has been appropriately placed among the `vague obligations’ which any lord could call upon his dependents to fulfil, without necessarily being able to enforce them.4  A powerful ruler or lord could demand the assistance of his subordinates, and make his demand effective, simply by reason of his power, as Henry I doubtless did when, on the evidence of the 1130 pipe roll, he took aids throughout England from the boroughs, cities, counties and knights of the kingdom.5  Others relied on negotiation, or on claims based upon custom rather than strength. 

During the twelfth century there was a movement towards definition, with regard to aids as to much else, and thus towards restriction.  In Clause 12 the limits set upon aids were presented in terms of their effects upon the king’s revenue and authority, but they arose from a tendency towards restraint upon lordship of all kinds, baronial as well as royal, where such demands were concerned.  Glanvill, in a discussion of the relations between lords and vassals which was only incidentally concerned with the interests of the crown, posited a lord who had paid a relief for the right to succeed to his inheritance being able to recoup his outlay by taking `reasonable aids for this purpose from his own men.’  This he was to do `in moderation’, according to the treatise, which also allowed the taking of an aid when a lord’s son and heir was knighted, or his eldest daughter married, while at the same time acknowledging the prevailing greyness of the area in question by conceding that `there is no certain rule laid down about the giving or exacting of aids of this kind ...’.6  Glanvill was probably written in the late 1180s.  Only a few years earlier a grant to St Andrew’s Priory, Northampton, by William FitzRichard, a tenant of the barony of Weedon Pinkeny, had confirmed a grant of land in Sulgrave upon conditions which included contributing to three specific `services’ – the ransoming of the grantor’s body, the knighting of his first-born son, and the marriage of his eldest daughter.  There was also the possibility that the canons of St Andrew’s would be called upon to join with William’s other free tenants in granting him a `common aid’, in which case they would do so in proportion to their holding (secundum suam tenuram).7  There was no reference to consent, which need not mean that none was called for – William’s charter may well have been observing a distinction between the kinds of aid (identical with those of Clause 12) which could legitimately be taken without prior consultation, and other kinds which a lord was expected to negotiate.  In any case, the fact that contributions were to be assessed in accordance with the size of each tenant’s property suggests that whatever form a `common aid’ may once have taken, it now involved something more orderly than a high-handed raid upon the resources of the tenantry

The developments implicit in Glanvill and the Sulgrave charter probably made it easier for the barons to impose limits on the king’s ability to exact `gracious’ aids – their own ability to make similar demands on their own tenants was being increasingly constrained, by custom and quite possibly also by outright resistance.  Like the king, they were having to accept that such aids could only be taken with consent.  The very fact that Clause 15 – without much doubt included in Magna Carta at the behest of the barons’ tenants – forbade the king to grant to anyone the right to take an aid except on the grounds set out in Clause 12, suggests strongly that such levies could no longer be taken without royal authority, and the force at its disposal, to back them up. Clause 12 dealt likewise with the royal power itself, henceforward the occasions on which a king could make an irrefutable claim upon the resources of his tenants-in-chief were limited to the three set out in that clause, a process which was arguably completed there.  By 1215 those occasions were probably uncontentious, all the more so, perhaps, because at that time only the first of them can have seemed even remotely likely to arise for several years.  It was not completely beyond the bounds of possibility that the king himself might at some point need to be ransomed, as Richard I had been, but John’s eldest son was a boy of seven, and his eldest daughter only four, so that both were likely to be some years away from knighthood and matrimony respectively. 

Terms and taxes

Of course, the barons must have been aware that mere implausibility was no necessary impediment to a king of John’s ingenuity levying such aids should he feel in need of one, and the stipulation that they should only be taken at rates felt to be `reasonable’ may have been partly included as a control on chicanery of this kind.  But Clause 12 was not principally concerned with this possibility, but with the fact that a king was entitled to demand an aid in other circumstances, should circumstances require it, and at its heart lay the stipulation that neither these, nor scutages, were to be imposed `except by the common counsel of the kingdom’.  That expression has been interpreted as signifying a council in the sense of a formal assembly.  Clause 12 - particularly as reinforced by Clause 14 - would in fact go a long way towards giving it that meaning, but in 1215 there can be little doubt that what was demanded was not an institution but a process, whereby the king’s financial needs were met only after they had been subjected to discussion, advice and consent involving the ecclesiastical and lay magnates.8  As far as exceptional, or `gracious’, aids were concerned, this was in fact already common, though perhaps not invariable, practice.  Much of the criticism directed against Clause 12 has stemmed from the way in which it elided such aids with scutages, and treated two fundamentally different forms of taxation as if they were essentially the same, and could therefore be appropriately levied using the same political and administrative machinery.  But that criticism may not take sufficiently into account the interchangeability of the terms used to describe twelfth-century taxes, one which led to a semantic confusion which was not of the barons’ making but which in 1215 they could try to exploit, just as King John himself had previously done.  Aid (auxilium) in particular was used to describe a number of different taxes, while aids which were taxes in the sense employed by Clause 12 might be referred to by names, or be raised using methods, more often associated with other levies. 

Tallages were often referred to as aids, and the two taxes had much in common, not least in originating in the claims made by lords on the resources of their dependents.  However, tallages retained connotations of arbitrariness which aids gradually lost, and consequently it has been suggested that a tallage might be referred to as an aid when it were imposed on towns, as a sop to urban sensitivities, on the grounds that the arbitrary nature of tallages led to their being particularly associated with unfreedom, and so to their being strongly resented by urban communities at a time when residence in them, at any rate when accompanied by prosperity, could release a man from villeinage9 – a development recorded in Glanvill.10  But in fact liability to tallage does not appear in the twelfth century to have been an infallible indication of serfdom,11 and in any case, although it is true that when Henry II imposed a tallage in 1156 it was recorded as a `gift’ from the counties but an `aid’ from the towns,12 there is no reason to believe that the latter’s payments were any less enforced than the former’s. 

In fact there was little consistency in the application of any of the terms used - when Henry took another tallage in 1162, consecutive entries record his receiving £15 from Worcester as a gift, and £5 from Droitwich as an aid.13  And when he led what was largely an army of mercenaries against Toulouse in 1159, the campaign was financed by what – as described by the chronicler Robert de Torigni – was indisputably a scutage, levied at the rate of 60s. (Angevin) per knight’s fee,14 yet when the advocate of Béthune paid £6. 13s. 4d. in 1163, this, too, was described as an aid (de auxilio exercitus de Tolusa).15   On the other hand, when Henry needed to finance the marriage of his daughter Matilda to the duke of Saxony (and probably other commitments as well) in 1168, he did so by means of an aid, but raised the money by what was in effect a scutage, using a new assessment carried out two years earlier, at the rate of one mark per knight’s fee.16  A further tallage in 1177 was referred to as an aid on boroughs and townships, but an assessment (assisa) on the king’s demesnes.17  The Saladin tithe, granted for the recovery of the Holy Land at a council at Geddington in February 1188, had all the qualities associated with an aid, but the instructions for its collection referred to it only as a tithe (decima).18 

The ransom of Richard I, which was raised in 1193/4 by a variety of methods including a fourth on landed revenues and movable property, a scutage, a carucage (a levy on land at the rate of 2s. per hide - roughly 120 acres), and at least two aids,19 was said by Ralph de Diceto to have been collected `by common assent’ (assensu communi).20  But in the context of Diceto’s account of the whole country uniting to gather the money, the phrase was probably intended to mean only that there were no objectors,21 and Roger of Howden seems more likely to have been correct when he stated that at first the ransom was simply decreed (statuerunt) by Queen Eleanor and the English justices (probably the men who had until recently been assisting the justiciar Walter de Coutances in the task of government),22 especially as he was followed in this by Roger of Wendover – continuo exiit edictum a justiciariis regis.23  It was nevertheless referred to as an aid, both by Howden himself, who presented his account of it under the heading De auxilio ad redemptionem regis statuto, and in one of the articles which justices itinerant were ordered to investigate in the autumn of 119424 – presentments were regularly made at that year’s Wiltshire eyre of the proceeds of a first and second aid.25 

Possibly the sheer scale of the ransom, and the resentment and resistance it was certain to arouse, were such that initially, at least, it could only have been raised by government fiat, and in fact, when the first levies failed to raise all the money needed, other methods were employed, imposed, according to Gervase of Canterbury, by a series of councils,26 which may with hindsight have been regarded as justifying the description of the ransom as an aid.  But it is equally possible that in the 1190s consent was not yet universally regarded as essential to the raising of an aid, and that when it came to taking one, the king’s need was still regarded as its own justification.  Richard I’s attempt of 1197 to raise money to maintain a force of knights in Normandy was discussed at a council at Oxford, where it was thwarted by the opposition of the bishop of Lincoln.27  Perhaps to avoid a second frustration, another carucage in the following year does not seem to have been debated beforehand, although the machinery for its collection was both elaborate and intrusive – this apparent arbitrariness may explain why at the parochial level it could be equated with a tallage.28

On 22 May 1200 King John attempted to settle his differences with King Philip of France through a treaty negotiated at Le Goulet in Normandy.  Its terms included the payment by John of 20,000 marks, which he set about raising, according to Ralph of Coggeshall, by an aid in the form of a carucage.29  It was demanded (expostulans) by the king, by whose justices its payment was then decreed (edictum) in the counties, where it came as a heavy burden immediately after a scutage at the unprecedented rate of two marks per knight’s fee (the adjective gravis was applied to both taxes).  Coggeshall distinguished the aid from the scutage, but said nothing to indicate that they were differently imposed, each seems to have been levied by an act of the royal will.  The fact that it could be imposed arbitrarily made scutage John’s favoured means of nationwide taxation thereafter, but he maintained the confusion of terminology by twice, in 1204 and 1205, taking it with the consent of the magnates, so effectively making it an aid.30  John’s order to the justiciar in the latter year, to raise 500 marks from the abbot of Bury St Edmunds for dues and debts which included `having his scutage and aid at one mark from each knight’s fee’, shows precisely how the two taxes could be run together.31

The impact of ideas

This was a development with the potential to be disadvantageous to the king, however, and it coincided with another.  John’s demands were never likely to be welcome, especially as they came to be made with ever greater frequency, and they also became increasingly open to ideological, as well as personal objections, thanks to the development of notions of public authority and the common weal which may have originated in, though they need not have been directly borrowed from, Roman law.32  King John himself, or at any rate those who issued documents in his name, seems to have become aware of such ideas.  In February 1204, shortly after his last, unsuccessful visit to Normandy, he addressed an appeal for help to the lords and clergy of Ireland in which he presented his predicament in purely personal terms – his inheritance was at risk and he needed their assistance, in both knights and money, at this hour of great need, `as you love us and our honour.’33  But a year later an additional dimension had been provided to frame the king’s needs, for now the magnates were summoned to join him in London on 15 May 1205, `to treat concerning our great and laborious affairs and the common utility of our realm’,34 the king’s business and the good of the realm being now presented as effectively synonymous.  It was in similar terms, after a council at Oxford had given a grudging consent to the heaviest tax of the whole reign, that on 17 February 1207 the king announced the levying of a thirteenth on revenues and movables, as `provided for the defence of our kingdom and the recovery of our right’.35  In fact there was no plausible danger of invasion at the time, and from the fact that the tax was payable by `each lay man of the whole of England of whosesoever fee he may be’, it would appear that the thinking behind the king’s demands owed at least as much to his feudal lordship as to any notion he may have had of national sovereignty, but the former may no longer have seemed sufficient to justify a levy on this scale (it raised around £60,000). 

No doubt it was John’s intention that those who had reservations about his pursuit of his rights should feel unable to object to the protection of the realm, even if that, too, was `ours’ in the king’s eyes.  But the equation of these two elements was potentially a double-edged weapon, since bishops and barons, too, had ideas about national well-being, which were not necessarily identical with the king’s, but which were arguably legitimized by documents like the summons of 1205 and the writ authorising the thirteenth.  They saw themselves as embodying the community whose well-being was now professedly at issue, and although the fact that the thirteenth was said to have been imposed `by the common counsel and consent of our council’ may not exactly have furnished a precedent for their involvement in the processes of taxation, since the king’s council was a limited group,36 it seems certain to have provided a potential model for this, since in their own eyes, and also in those of the realm at large, they could claim the right to speak for the latter and to cooperate with the king in its government.  The thirteenth of 1207, which was unequivocally described as an aid in the writ ordering its collection, was thus as important for its stated justification as for its contribution to the development of fiscal administration.  However, it may have been partly for the same reason that as a tax upon property it had no immediate successor; in order to exclude magnate participation in government, as well as because it suited his naturally authoritarian temperament, John reverted to raising money through scutages and the ruthless exploitation of all the other resources of kingship. 

Royal resistance

The re-emergence of ideas of `common counsel’ in 1215, attached now to the kingdom rather than to the royal council, was doubtless encouraged both by memories of the thirteenth, and also by John’s methods, financial and otherwise, in the years which followed it.  When he summoned his subjects to man the coasts against a threatened invasion in the spring of 1213, for instance, although he called on them to defend `our head and their own heads and the land of England’, he made no mention of consultation or consent.37  Whatever he may have thought about national security as a matter of common concern in 1207, six years later he treated it as a matter for his sole judgment.  Inevitably he did the same when he tried to raise a scutage in the following year to reimburse his expenditure on that year’s expedition to Poitou, ordering its collection in a letter sent from Parthenay on 26 May 1214 which set out its purpose in characteristically peremptory terms – statuimus tres marcas capi de scutagio.38  When the demand ran into opposition, he eventually called upon the pope for support, and on 1 April 1215 received it, one autocrat here endorsing another.39 

Meanwhile war was not John’s only concern, for he also needed to raise up to 100,000 marks to compensate bishops, abbots and other ecclesiastics for their losses at the hands of the king and his agents during the interdict.40  A letter-patent addressed `to barons, knights and all his liegemen of the whole of England’ which was sent from La Rochelle on 6 March 1214, and which announced that the interdict was over and asked for help and counsel in amending the state of the realm, may have been issued in the hope of, or as a prelude to, an appeal for money, but if so it had no effect.  Perhaps addressing the letter’s recipients as `our dear and faithful men in whose love and loyalty we fully trust’ merely irritated them.  But two days later the king reverted to more familiar methods, in the form of letters sent on 8 March to the men of `all the lord king’s boroughs and demesnes’ requesting a loan to enable him to settle his differences with the church41 - the `loan’ was to be emphatically an enforced one, for it was entered on the pipe roll as a tallage.42  Indeed, this tax provides a good example of the way multiple terms could be used to refer to the same levy, for in later records, and also in some royal mandates sent out in 1214, it was referred to as an aid, imposed `for the lifting of the interdict’ (ad relaxionem interdicti), making clear that its purpose was to finance the compensation of the clergy.43  London paid 2000 marks towards the 1214 tallage;44 describing the tax as an aid would have done nothing to reduce the city’s contribution to it.

The king’s right to levy scutage had long been uncontested.  It was for him to decide whether a campaign should take place, who should attend it, and how it was to be fought and funded.  But by no means all of John’s scutages were in fact levied in order to finance military undertakings.  At the very beginning of his reign he demanded a scutage months before fighting began in Normandy, and he took one in 1201 when no campaign was mounted at all, in France or anywhere else, while in 1209, though he could claim in justification for levying a scutage that he had led an army to the Scottish border, in fact his dispute with William the Lion was decided by treaty, rather than battle.45  The king’s own actions, on occasions like these, were partly responsible for the differences between a scutage and an aid having by 1215 become so blurred that it was hardly surprising, or unreasonable, that the barons should have demanded the right to treat them as identical, and to insist on their right to be consulted before either was levied, especially when ideological developments were also encouraging them in this stance.  The conventional aid taken for the marriage of Princess Matilda in 1168, together with those subsequently raised for the marriages of Princess Isabella in 1235 and Princess Margaret in 1245 and the knighting of the Lord Edward in 1253, were all assessed on knights’ fees, and so were the taxes of 1204 and 1205, while although the bulk of Richard I’s ransom and the thirteenth of 1207 were raised by other means, the former was supplemented by a scutage, while the reference in the writ ordering the latter’s collection to the fees of those who paid it suggests that even when implementing a fiscal innovation, King John himself instinctively saw his tax-base in terms of feudal units.  In 1215 the barons turned against him an analogy which he had previously exploited to his own advantage. 

Unresolved difficulties

There were still difficulties, of course.  Linking aids and scutages may not have been as much of an innovation as might at first sight appear, but they were not in fact quite close enough together for the connection to be maintained.  Only on the three conventional aids was any effort made to fix the rate at which levies should be imposed, and for these all that was suggested was that they should be `reasonable’.  In the first reissue of the Charter, of 12 November 1216, Clause 12 was one of several to be set to one side for further discussion, while all that survived of it into the second reissue, granted twelve months later, was the stipulation that `scutage shall be taken in future as used to be taken in the time of King Henry our grandfather’.46  Clause 8 of the `Unknown Charter’ had proposed a rate of one mark per fee, a figure which might have been acceptable enough to Henry II in 1168, but which was totally unrealistic as a means of financing a campaign nearly fifty years later, as the clause itself effectively conceded when it added the rider – one which ahead of Clause 12 showed the magnates to be determined to control the king’s right to levy scutages47 - that if necessary a higher rate could be taken on the advice of the barons.48 

Under Henry II the usual rate for scutage subsequently became 20s. per knight’s fee, and this may have been what the draftsmen of the Charter had in mind by `reasonable’, on the evidence of a number of settlements of land disputes from John’s reign in which defined, or alleged, contributions to scutage took 20s. as its typical amount.  Thus when William de Hauville and Ralph of Grantham settled a dispute over property in Helhoughton, Norfolk, in 1201, it was agreed that Ralph should pay 2s. to William for a scutage of 20s.,49 while two years later William Mordant, the defendant against Henry Tresgoz in an action over land in Goring, Sussex, claimed that he was bound to pay Henry only 18d. `when a scutage of 20s. is given....’.50  In 1206 a number of the Suffolk tenants of Roger de St Philibert acknowledged owing him sums ranging from 20d. to 44d. when scutage was demanded, with the rate of the latter, when given, being always defined as 20s.51  It seems unlikely that this figure was always chosen because fractions of it were easy to calculate, not least because lawsuits from later in John’s reign sometimes reflect or refer to the higher rates of scutage which were being levied by then.  Thus Richard de Sifrewast, prosecuting Robert of Pinkney in 1212 for failing to observe the terms of a fine over property in Buckinghamshire, claimed to be owed a third of the service of a knight’s fee, including 8s. 10½d. for scutage from the previous year’s expedition into Wales, which had been levied at the rate of two marks – 26s. 8d., or three times the sum claimed by Richard.52  20s. per fee was a convenient figure for scutage, but in 1215 it may also have still seemed to be the proper one.  In the second decade of the thirteenth century a scutage set at such a rate would still have been insufficient to pay for a serious military undertaking, and if 20s. per fee was indeed what the draftsmen of Magna Carta had in mind, they would certainly have been aware of this.  It might have allowed a king to launch a campaign, or have supported the fighting of a campaign once launched, but by itself it could never have supported both preparation and fighting, as John himself, as well as the barons, must have understood – the fact that Clause 12 would have seriously impaired the king’s ability to wage war as and when he wished was no doubt an additional reason for its failure to survive into later reissues of Magna Carta.

Article 32 had required the same consent for tallages and aids on London and other boroughs as for scutages and aids generally, and since Clause 12 spoke only of aids taken from London, it has been argued that the city obtained less than it had hoped for, and remained liable to be tallaged at the king’s pleasure.  As things turned out, that was indeed what happened, but it is not certain that in 1215 the barons deliberately betrayed their allies in the capital.  The demand that tallages on other privileged cities and towns should be made only with consent, although it must have been eagerly sought by communities hit by the nationwide levy imposed at punishing rates in 1210,53 was successfully resisted by John, who was able to ensure that they continued to be treated as part of the royal demesne, and thus tallaged at pleasure.54  London’s position in Clause 12, which gave it a measure of protection, is not without ambiguities, perhaps deliberately so - the barons may have hoped that unclear distinctions would remain opaque in ways the city could exploit, as they themselves tried to turn uncertainties to their own advantage. 

The Londoners had made payments to King John under a variety of names.  In 1206 the collection of tallages there was giving rise to internal conflict,55 but a year earlier the city had paid the king £600 in aid of his planned expedition to Poitou – ad auxilium nostre transfretacionis.56  A payment of 2000 marks in 1211 was euphemistically recorded as a `gift’,57 another of the same amount in 1214 was unequivocally called a tallage.58  In 1215 the Londoners had good reason to want their contributions to the royal treasury to be made only subject to consent, with the levy of 1207 apparently furnishing a precedent for this having happened.  The closeness of tallages to aids had previously been such that the two could easily appear synonymous, and since it appears to have been only in the 1220s that tallage came to be decisively associated with unfreedom, and seen as a tax arbitrarily imposed by lords on their serfs,59 it may have been the opening up of a clear distinction between tallage and aid which came to be made after 1215 which left the Londoners openly exposed to royal demands, demands from which they only secured their freedom in 1340.60  Ironically, the closer definition of an aid made by Clause 12 may have worked against the interests of at least some of those whom it was intended to benefit.  In other respects its effect was no less paradoxical.  Clause 12 was dropped from later reissues of the Charter, to be replaced after 1217 only by a stipulation concerning the rate of scutage.  Perhaps that was all that was necessary, since scutages continued to be taken by later kings.  Otherwise the Clause’s `message’ survived intact.  The three occasions it specified for the taking of aids remained in force, and John’s successors only took aids after first obtaining the consent of the magnates.  On that last issue, in particular, it would appear to have expressed a need which was so powerfully felt that it did not have to be written down to secure acceptance.

1

In particular by J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 297-8, 301, 317-23, and W.S. McKechnie, Magna Carta (2nd edn., Glasgow, 1914), 231-40.

2

The possibility that the concluding sentence relating to London originally constituted the opening sentence of Clause 13 is discussed in the commentary on the latter.

3

Discussed in the commentary on Clause 16.

4

Sir F. Pollock and F.W. Maitland, The history of English law, 2 vols. (2nd edn., Cambridge, 1898), i, 549-51; P.R. Hyams, Kings, lords and peasants in medieval England (Oxford, 1980), 192.

5

Details in J.A. Green (ed.), PR 31 Henry I (1130), Pipe Roll Society new series 57 (2012).

6

G.D.G. Hall (ed. and trans.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 111-12.

7

F.M. Stenton, The first century of English feudalism, 1066-1166 (2nd edn., Oxford, 1961), 173-4, 276-7.

8

I have followed the argument of G. Langmuir, `Per commune consilium regni in Magna Carta’, Studia Gratiana 15 (1972), 465-85, though without accepting his suggestion that consent was not implicit in counsel.

9

A.L. Poole, From Domesday Book to Magna Carta, 1087-1216 (2nd edn., Oxford, 1955), 418-19.

10

Glanvill, 58.

11

Hyams, Kings, lords and peasants, 191.

12

PR 2-4 Henry II (1155-1159), 4-67 passim.

13

PR 8 Henry II (1162), 57.

14

R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II and Richard I, 4 vols. (Rolls Series, 1884-9), iv, 202.

15

PR 9 Henry II (1163), 9.

16

Details in PR 14 Henry II (1168), passim.  See also W.L. Warren, The governance of Normand and Angevin England, 1086-1272 (1987), 155-6.

17

Details from PR 23 Henry II (1177), passim.

18

W. Stubbs (ed.), Gesta regis Henrici secundi Benedicti abbatis, 2 vols. (Rolls Series, 1867), ii, 33-4.

19

S.K. Mitchell, Taxation in medieval England (Yale, 1961), 122-7.

20

W. Stubbs (ed.), Radulfi de Diceto decani Lundoniensis opera historica, 2 vols. (Rolls Series, 1876), ii, 110.

21

This interpretation is not that of J.R. Maddicott, The origins of the English parliament, 924-1327 (Oxford, 2010), 120.

22

W. Stubbs (ed.), Chronica Rogeri de Houedene, 4 vols. (Rolls Series, 1868-71), iii, 210.

23

H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum, 3 vols. (Rolls Series, 1886-9), i, 224.

24

Chronica Rogeri de Houedene iii, 263.

25

F.W. Maitland (ed.), Three rolls of the king’s court of the reign of King Richard the First, A.D. 1194-1195, Pipe Roll Society 14 (1891), 77-115 passim.

26

W. Stubbs (ed.), The historical works of Gervase of Canterbury, 2 vols. (Rolls series, 1879-80), ii, 519.

27

D.L. Douie and H. Farmer (eds. and trans.), The life of St Hugh of Lincoln, 2 vols. (1961-2), ii, 98-100.

28

Chronica Rogeri de Houedene, iv, 46-7.

29

J. Stevenson (ed.), Radulphi de Coggeshall chronicon Anglicanum (Rolls Series, 1875), 101-2.

30

Holt, Magna Carta, 319.

31

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johanne (Record Commission, 1835), 293.

32

What follows is heavily indebted to G.L. Harriss, King, parliament and public finance in medieval England to 1369, (Oxford, 1975), chapter 1.

33

T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837), 133-4.

34

W. Stubbs (ed.), Select charters ... from the earliest times to the reign of Edward the First (9th edn., revised by H.W.C. Davis, Oxford, 1913), 277.

35

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 72-3.

36

Discussed in the commentary on Clause 14.

37

Rogeri de Wendover ... flores historiarum, ii, 66-7.

38

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1201-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 166.

39

C.R. Cheney and W.H. Semple (eds. and trans.), Selected letters of Pope Innocent III concerning England (1198-1216) (1953), 202.

40

Authoritatively discussed by C.R. Cheney, Innocent III and England, Päpste und Papsttum 9 (Stuttgart, 1976), 348-55.

41

Both letters are entered in Rot.Lit.Pat., 111.

42

PR 16 John (1214), xvj-xvij.

43

Rot.Lit.Claus. i, 208-9, 213.

44

S.K. Mitchell, Studies in taxation under John and Henry III (New Haven, 1914), 117 note 109; PR 6 Henry III (1222), 196.

45

The details are summarised by Mitchell, Studies in taxation, 315.  For the Scottish campaign see A.A.M. Duncan, Scotland: the making of the kingdom (Edinburgh, 1975), 241-9.

46

H. Rothwell (ed.), English Historical Documents iii: 1189-1327 (1975), 337.

47

Maddicott, Origins of the English parliament, 131-2.

48

Holt, Magna Carta, 428.

49

Curia Regis Rolls i, temp. Rich.I-1201 (1922), 406.

50

Curia Regis Rolls ii, 1201-1203 (1925), 142-3.

51

Curia Regis Rolls iv, 1205-1206 (1929), 134, 292.

52

Curia Regis Rolls v, 1207-1209 (1931), 5.

53

Details in PR 12 John (1210), passim.

54

R.S. Hoyt, The royal demesne in English constitutional history: 1066-1272 (Ithaca, New York, 1950), 144-5.

55

Rot.Lit.Claus.i, 64.

56

Ib., 35.

57

PR 13 John (1211), 135.

58

PR 16 John (1214), 81.  It is not clear if this levy was identical with the tallage referred to above as having been demanded following the lifting of the interdict, but probably it was a separate tax.

59

Hyams, Kings, lords and peasants, 192.

60

McKechnie, Magna Carta, 238.

Referenced in

The Leges Edwardi Confessoris (Features of the Month)


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Original Latin

XIII

Et civitas Londoniarum habeat omnes antiquas libertates et liberas consuetudines suas, tam per terras, quam per aquas. Praeterea volumus et concedimus quod omnes aliae civitates, et burgi, et villae, et portus, habeant omnes libertates et liberas consuetudines suas.

13

And the city of London is to have all its ancient liberties and free customs, both on land and water. Moreover we wish and grant that all other cities, boroughs, towns and ports are to have all their liberties and free customs.

Audio commentary

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Commentary for academic researchers

The city, the clause and the crown

Clause 13 of Magna Carta originated as the last section of no. 32 of the Articles of the Barons, which is placed in a small group (31-33) implicitly or explicitly devoted to the interests of London.  The first section of the Article, which was of very wide significance by virtue of its being concerned with the imposition of the levies known as scutages and aids, acquired a London connection through the sleight of hand which attempted to have the tallages and aids which were imposed on London and other towns treated in the same way as scutages and aids demanded from individuals, and made only with the consent of those involved.  However, tallages were entirely arbitrary levies which were traditionally imposed by lords on serfs and townsmen, and moreover had no intrinsic connection with aids.1  The demand was probably strongly resisted by the king, and perhaps not very warmly supported by the barons, and for that reason, and also because it lacked inherent authenticity, the Londoners were unable to insist on its inclusion, so that it was ultimately abandoned.

The first part of Article 32 became what in its conventional numbering is Clause 12 of Magna Carta, and was placed among a number of clauses dealing with financial impositions and the issue of consent, where it concluded by giving London (but no other town) the right to consultation where aids were concerned, and made no reference to tallage.  The security of the present-day numbering of the Charter’s clauses is not always certain, however.  It is possible that this award to the capital is misplaced at the end of Clause 12, and that originally it formed the first part of a Clause 13 entirely made up of concessions to London, while the second sentence of what is now Clause 13, in which a phrase from Article 32 relating to aids and tallages has been adapted so as to extend the rights of London to all other privileged urban communities, initially constituted a discrete clause, its opening signalled by the word `Moreover’ (Preterea).2  Against this, it could be argued that since Clause 12 was essentially concerned with scutages and aids, the treatment of aids upon London was perfectly reasonably included in it.  Moreover, Clause 13, as conventionally represented, had sufficient coherence to enable it to survive largely unchanged in subsequent reissues, whereas Clause 12 was entirely abandoned within a year.

Whatever its original content, the placing of what has come to be accepted as Clause 13 is of interest.  It would have been logical for it to have been returned to the original position of Article 32, between the articles which became Clauses 41 and 42.  That this did not happen may simply have been because a final decision as to how Article 32 should be treated was taken too late to allow the necessary reorganisation of the Charter as it took its final shape.  But the advanced placing of the clause may also have been intended – and in this context it would have made no difference where Clause 12 ended - as an acknowledgment by the barons that the city’s support was crucial to their cause.  The fact that London alone among English towns was to enjoy the benefits of consultation when an aid was taken made the same point.  It may be an additional pointer to the city’s perceived importance that it was referred to in Magna Carta as a corporate entity, with an existence, and presumably standing, which could be separated from those of the people who lived there.  Whereas the charter which King John had granted to London little more than a month earlier was conventionally addressed to its citizens, described as `our barons of our city of London’, Magna Carta referred to London as an objective entity, comparable to `the Church’, or even to `the realm’, which in Clause 14 could be regarded as capable of `common counsel’.  Other urban communities were referred to in the same terms, but because they were not named they remained in London’s shadow.

London’s importance was certainly such as to justify special treatment in Magna Carta.  Three other clauses (33, 35 and 41) are to at least some extent concerned with its interests and special place in the realm, and indeed, apart from the honours named as examples in Clause 43, and Runnymede and the neighbouring townships mentioned in the dating clause, it is the only place referred to as such in the entire text.  Its citizens had claimed a king-making role in 1135,3 and even before then London had been developing rights of, and claims to, self-government, initially recognised in a charter of Henry I, which among other privileges granted the city its feefarm, that is, the right to account at the exchequer for revenues traditionally owing to the crown, at a fixed rate and through officials of the citizens’ own choice.4  The feefarm was withdrawn by Henry II,5 however, who firmly controlled the city’s aspirations, though at the same time he indirectly promoted them through financial exactions which forced corporate action and organisation upon it, making it essential for London to develop the machinery needed to assess and collect the money he required of it at regular intervals during much of his reign – not only did he exact an annual payment, a `farm’, of nearly £550, but between 1155 and 1177 a total of £4780. 16s. 8d. was demanded from London in a series of aids and `gifts’.6  In the last twelve years of his reign, possibly influenced by the city’s loyalty to himself during the rebellion of 1173/4, Henry briefly cut the annual `farm’ by half, and he also looked elsewhere for ready cash, especially among the Jews.  But the respite did nothing to deflect the Londoners from their pursuit of greater independence, and in 1191 they exploited a political crisis arising from Richard I’s absence on crusade to obtain from the future King John the grant of a `commune’, giving them the right to associate for the purposes of self-government.  The first mayor appeared shortly afterwards.7

When Richard returned to England in 1194, he granted London a charter confirming it in the rights it had enjoyed under his father.  He neither suppressed the commune nor gave it formal recognition, but thanks to a `gift’ of £1000, ostensibly `for the king’s good will and for the preservation of its liberties and for its contribution to the king’s ransom’, he appears to have acquiesced in its existence.8  A further gift of 500 marks in 1196 no doubt helped persuade him to continue doing so,9 assisted, perhaps, by the consideration that by this date there were strong links of mutual advantage and necessity joining the king to the city which was now coming to be seen as England’s capital.  For London, the king was both the source and the guarantor of its privileges, while the needs of his court, when he was in England, acted as a powerful stimulus to the city’s trade and thus to the development of its prosperity.  For the king, the wealth of London, along with his ability to draw upon it, constituted one of the principal elements among his fiscal resources.  The long mayoralty of Henry FitzAilwin, from about 1194 to 1212, probably owed much to his recognition, and promotion, of these shared interests, which were similarly upheld by the king’s government in 1196, when the justiciar, Hubert Walter, took stern action in defence of the city oligarchy against the protest movement led by William FitzOsbert.10

Strains and pains: London and King John

London’s relationship with King John was ambivalent from the first.  On 17 June 1199 the new king, no doubt aware of the value of the city’s backing at the outset of his reign, granted it a charter confirming that of Richard I.11  But there was a background of unease to the transaction.  The price was the high one of 3000 marks, and there seem to have been reservations among the Londoners about paying it, for when the charter was drawn up `it was handed over to Geoffrey fitz Peter [the justiciar] on condition that if they are willing to give those three thousand marks they will have their charter, but if not they will not have it.’12  The citizens may have hoped for a repetition of the benevolence which in 1191 had helped them to win their commune, and misguidedly expected John to give them their charter for nothing.  Or perhaps there were uncertainties which needed to be resolved as to whether, and how, this large sum was to be raised.  The Londoners soon resolved to meet the king’s demands, however, and an elaborate organisation was set up to raise the money, based on the wards but with a central chest, with contributions being demanded in proportion to their wealth from all who had rents or chattels worth more than 12d.13  By 1203 all but £13. 17s. 5d. of the proffer had been paid,14 and in the same year John spoke fulsomely of his relationship with London, in a letter about the treatment of Jews in the city: `We have always loved you much and have caused your rights and liberties to be well observed, wherefore we believe that you feel a particular love for us, and are willing to promote those things which tend towards our honour and the peace and tranquillity of our land ...’.15

There may have been less affection towards the king in the city than he supposed, however.  A year earlier the citizens had undertaken to pay the king £40 for the suppression of the weavers’ gild, which had originated before 1130 and paid £12 yearly into the treasury – no doubt its existence was regarded as detrimental to the authority of the commune.  John accepted the deal, and the money was paid in 1205, but either the weavers objected or the king came to have doubts, for when he issued his charter abolishing the gild he sent it to the justiciar for implementation, along with a copy of what was probably his first charter of 1199, with instructions that the former was only to be put into effect if it was consonant with the latter.16  Probably the citizens had claimed that the existence of the weavers’ gild was discrepant with the privileges which John had recently granted them.  The claim would seem to have proved untenable, for the weavers were able to make an agreement of their own with the king, whereby they raised their annual payment to £20 and retained their gild.  The episode may well have fostered suspicions on both sides between the king and his capital.

In 1204 the citizens of London agreed to pay 1000 marks pro fine passagii, presumably as commutation of some kind of service in or to Normandy, and in the same year they seem to have been persuaded to offer the king a New Year’s gift of £100,17 though they never actually paid it – although it was nominally made annually, they owed £300 by 1207, at which point the debt was pardoned at the suggestion of the justiciar.18  Then in June 1205 they paid £600 into the king’s chamber, as their contribution to that year’s expedition to Poitou.19  There is also evidence that John was taking tallages from the city around this time, though not for the sums involved.  On 4 February 1206 letters patent addressed to `his barons of London’ expressed the king’s concern that the city was suffering greatly from the misconduct of certain leading citizens (superiores) who had been responsible for the assessment, collection and payment of tallages, and suggesting that the proceeds of such levies, which had been paid by `the common people of your city’, had been sticking to these wealthy men’s fingers (a charge often made against members of the ruling classes in medieval towns and cities).  To uphold both the king’s honour and right, and the common advantage of the city, and to prevent internal dissension, twenty-four well-qualified men were to be chosen by whom the necessary reforms could be made.20

Although it is not known what action followed, the oath taken by the chosen twenty-four survives, and in its professed concern for `the right of the lord king which belongs to him in the city of London’, combined with concern for the preservation of the city’s liberty, it closely matched the terms of the king’s mandate for their appointment.21  Similarly the oath’s stress on the incorruptibility of the twenty-four, who were to swear to receive neither gift nor promise, was highly relevant to the inquiries they were to make into financial malpractices.  The oath has been perceived as shedding important light on the constitution of London in the early years of the city’s self-government,22 but in fact its application was administrative and temporary.  It is likely, indeed, that in ordering investigations John was looking back to the populist agitation of William FitzOsbert in the mid-1190s, which had been directed against very similar issues.  But the principal significance of the commission and the oath lie in the evidence they provide for John’s having taken tallages from the city, even though their issues went unrecorded on the pipe rolls, for the discontent they aroused, as much against the manner of their collection as against the taxes themselves, and for the steps he was willing to take in order to maintain his position there.

In the years after 1206, however, it became increasingly apparent that his revenues and rights meant more to John than the city’s good will.  Although the king was slow to make new demands – 200 marks for quittance of the customs levy of a fifteenth, agreed in 1206, were not paid until 121123 – London came under steady pressure from the exchequer to pay off its old debts, starting with just over £250 in 1207 from the arrears of the fee-farms of the last seven years.24  A year later the citizens accounted for amalgamated debts totalling just over £1500,25 all of which were paid during the three years following.  No sooner had the last of those debts been cleared than London had to find a further 2000 marks for a `gift’ to the king,26 a sum paid that same year (£200 were paid into the king’s chamber, as a total of £1000 from earlier debts had been, raising the possibility that this was where the money raised by unrecorded tallages had been handed over).  And in 1214 came a demand for another 2000 marks, this time avowedly in the form of an arbitrary tallage, with a tight schedule for payment – 500 marks were to be paid at the quindene of St John the Baptist (8 July), and 500 at the feast of St Peter (probably 1 August), while the rest was to go towards paying the king’s debts to Flemish merchants.27

Meanwhile in 1212, perhaps in July, a fire broke out in Southwark which spread north across the river, devastating London Bridge and causing widespread damage in the city, while the death in September that year of Henry FitzAilwin, the long-serving mayor of London, may have created something of a power vacuum in the city – his successor, Roger FitzAlan, does not appear to have been a man of comparable stature.28  But at this critical juncture John made no attempt to win gratitude or support within London (the tallage of 1214 can certainly have earned him neither), apparently preferring instead to rely on armed force. Payments in 1212 and 1214 to the garrison in the Tower and for the safe-keeping of the Thames29 probably originated in the threat of a French invasion in the former year, but as this danger was temporarily eliminated by the destruction of the French fleet in May 1213, they may also reflect the king’s determination to retain control of a city now perhaps showing signs of instability and discontent.  Only in 1215, however, does the king seem to have become fully aware that neither the loyalty nor the defensibility of his capital could be taken for granted.

1215: London changes sides

John seems to have expected the barons to make for London, and may even have hoped they would do so, so providing him with an opportunity to inflict a decisive defeat upon them.  Perhaps he envisaged his enemies as advancing upon London, only to be trapped against its well-defended walls by his mercenary troops coming up behind them, and then forced to choose between abject surrender and utter destruction.30  It would have been in accordance with such a strategy that on 2 May 1215 John granted the new mayor, Serlo the mercer, timber from Havering park for the strengthening of London’s defences, and two days later ordered the exchequer to give Serlo 200 marks for the same purpose,31 while on the 10th he ordered that a wall be made `in a hurry’ between the Tower and the city wall32 – perhaps it was intended to command the approaches to the Postern Gate, immediately to the north of the Tower, in case the barons attempted to force an entry there.  Such was the haste that the wall had to be made of earth, at a cost of £12.33  It was probably at around the same time, and with the same sense of urgency, that the citizens set about raising money `to enclose the city’, perhaps by completing, or deepening, the ditch, 200 feet wide, which they had begun to make round London in 1212.34  Payments for this latest work were to be made immediately, or by the following Sunday at the latest, and even foreign merchants were expected to contribute.35

Since these civic works were described as undertaken `at the request and with the assent’ of the king, who was given two barrels of wine between 8 and 10 May by `our barons of London’,36 it would appear that John still had supporters within the city, and probably remained confident of its support.  The barons, for their part, can hardly have been ignorant of the risks which an outright attack on the capital would entail, and they, too, must have come to believe that they could count on being admitted to the city, though it is not entirely clear when and how they did so.  After failing to capture Northampton castle, they moved south to Bedford, where they were welcomed by William de Beauchamp.  It was only at this point, according to Roger of Wendover, that they were approached by messengers from London, urging them to come with haste.37  Ralph of Coggeshall, who speaks of conspiracy through intermediaries, suggests more extended contacts, and adds a significant detail in recording the approach of the earl of Salisbury to the city.38  John, who had himself been in London as recently as 9 May,39 had at last become aware that there was serious disaffection in his capital.  He wrote to the mayor and citizens from Marlborough on the 16th, telling them that he was sending the earl (who was also his own half-brother) to them, and that they should follow his instructions,40 while a day later he wrote again, saying that William of Cornhill, bishop of Coventry, a trusted adviser of he king and also a member of a prominent city family, and Hubert de Burgh were also on their way.41

Hubert was an experienced and capable soldier (he had held the castle of Chinon against French forces for a whole year in 1204-5), and had he been inside the city when the barons arrived before it, there can be little doubt that they would have faced strong resistance.  But John had responded too late to the threat to London, and his emissaries failed to reach the city in time, whereas the barons seized their opportunity.  Going east to Ware, they turned south down Ermine Street, and arrived before London on the morning of Sunday the 17th (having marched all night, according to Wendover).  The chroniclers differ in their accounts of what followed, but agree in describing the city as only nominally defended: according to one account, the barons found the gates shut but unlocked;42 another records that the gates were standing open while the citizens attended mass;43 while a third describes soldiers scaling the walls with ladders used by workmen who had been repairing the defences, and then opening the gates from within.44  From the fact that the barons were said to have demolished houses belonging to Jews and used the stones to strengthen the walls,45 it would appear that work on the latter was still incomplete; as it was, John’s precautions were now turned against him. The barons arrested the king’s supporters in the city and took their goods, and they also set guards on the gates and walls.  Early in June they tried to capture the Tower as well, but without success, and for the time being it remained under the king’s control.46

It is hardly possible to overestimate the importance of the fall of London to the king’s enemies.  Without its resources, and – of even greater value – without the refuge afforded by its walls, the barons were effectively doomed to defeat whenever the king brought all the forces at his disposal into the field against them.  But with London on their side, the barons were able to demand concessions which the king was in no position to refuse, at least in the short term.  John saw this as clearly as anyone.  Fully aware that the Londoners had hardly tried to offer even a show of defence, on 18 May he described them as having acted `of their own free will’ (spontanea voluntate) in surrendering the city, and two days later he gave voice to his fury and outrage against them for their `dishonest and treacherous’ desertion of him by ordering his subjects to treat them as his enemies and to do them every possible injury.47 His response can only have hardened the citizens in their resistance.  According to Matthew Paris, John had come to be hated in London, for impoverishing them in breach of their ancient rights, and tallaging them as though they were the lowest form of serfs,48 while Roger of Wendover offered the more nuanced judgment that it was the rich men of the city who supported the barons, so that the poor feared to complain against what had happened.49  Perhaps John’s action against the superiores in 1206, reinforced by the impact of later exactions which perhaps fell more heavily than usual on the governing classes precisely because they now hesitated to pass them on to those beneath them, had alienated the well-to-do of London, while the city poor lacked the strength to provide the king with any compensating support.  But although material considerations must indeed have carried much weight among the citizens who sided with the barons in 1215, there were other, less tangible, forces at work which may also have influenced their behaviour.  An early thirteenth-century text of the Leges Edwardi Confessoris, identifiably of London origin, contains interpolations which identify kingship with justice, call upon the king to rule with the counsel of the chief men of the realm, and postulate an unmistakeably urban scenario for action against injustice and bad government, with the bells (`motbele’) being rung and assemblies (`folkesmoth’) convoked, so that measures can be promoted `to repress the insolence of evildoers for the utility of the kingdom’.50

The barons manifestly shared the reservations expressed in the interpolations over the uninhibited exercise of royal power, and they may well have been influenced, too, in their attitudes and aspirations by the corporatism which found expression in London’s commune and the privileges granted to many other towns and cities.51  It has also been suggested that the committee of twenty-five established to oversee the observance of the Charter was influenced in the number of its members by the council of twenty-five discreet men who according to the London chronicler Arnold FitzThedmar were elected in 1201 to assist the mayor in the government of the city.52  But FitzThedmar was writing over fifty years later, and since no other source makes any mention of this council, its existence, or at any rate its continuance, must be regarded as doubtful.  In fact there is no evidence that in their early negotiations with King John, undertaken before they gained control of the capital, the barons gave any thought to the interests of London, or of towns in general, even though Robert FitzWalter, one of their leaders, was lord of Baynard’s Castle, in the city’s south-west corner (it was demolished on the king’s order after Robert’s outlawry in 1212),53 and himself engaged in trade.54  There is nothing relevant to London in the `unknown’ charter, for instance (which may have implications for its date).  The clauses in Magna Carta which addressed the interests of London must have been there because they were demanded by its citizens, once they were in a position to influence its composition.

Expectations and rewards

What the Londoners wanted is shown by a list of nine demands which seems to date from this time, and may have been drawn up shortly before the barons took possession of the city, perhaps even for presentation to both the king and his adversaries.55  Two of the clauses were addressed by John.  As noticed above, he took steps to strengthen the city’s defences (no. 6), and in a charter of 9 May, in which personal pronouns were deliberately employed to stress his own association with the Londoners, he granted `our barons of our city of London’ the right to elect their mayor each year (no. 8), and to remove him, if they so wished, at the end of the year and choose a successor – perhaps the extended tenure of Henry FitzAilwin had aroused discontent in some circles.56  The Londoners had demanded that the election take place in the folkmoot, and that the mayor `should first swear’, probably meaning that he should declare that his primary allegiance was to the interests of the city.  John countered this by requiring that each new mayor should be presented to himself (or to the justiciar in his absence), and should swear fealty to him.  It seems unlikely that this elaboration on their demand for the mayoralty was objectionable to the city, but the rest of the charter must have been a disappointment there, for John confined himself to a generalised confirmation of London’s existing liberties, one that was qualified, moreover, by his reserving the rights of his chamberlain (salva nobis chamberlengeria nostra), which meant that he would retain the right to exploit the city’s commerce whenever he saw fit.

The relatively meagre extent of his concessions in his charter of 9 May constitutes further evidence for John’s complacency with regard to the loyalty of London.  Its citizens had hoped for more, and on the evidence of Magna Carta, the barons were willing to provide more, even though they did not, in the end, give the Londoners everything they sought.  The call for the abolition of evil tolls and customs (no. 2), and for foreign merchants being able to come freely to England (no. 8), formed the basis of Clause 41, but the demand that the Thames should be absolutely and wholly the city’s (no. 1) was reduced to Clause 33, commanding the removal of fish-weirs.  And although the insistence that tallages be levied only `by the common assent of the kingdom and the city’ (no. 3) formed part of no. 32 of the Articles of the Barons, albeit with the small but important difference that tallages and aids on London and other towns were to be imposed only `by the common counsel of the kingdom’, with no special voice being allowed to the city, London’s claim to special treatment in this matter was scaled down to cover only aids.  Three demands, for the abolition of unlicensed parks (no. 5), the re-instatement of the exchange (no. 4), and the right to distrain upon debtors (no. 9), were not addressed at all.  The first of them, concerning parks, must have arisen from the hunting rights enjoyed by the Londoners, which according to Henry I’s charter extended into `Chiltern and Middlesex and Surrey’, while William FitzStephen described them as encompassing Hertfordshire and a part of Kent as well.57  Probably these led to friction with, and then enclosures by, landowners over whose estates the citizens had become accustomed to pass in their pursuit of game.  The demand for the old exchange is puzzling, for despite reforms arising from the recoinages of 1180 and 1205, London’s mint and exchange had consistently remained open, unlike those in most other towns58 – perhaps it was the crown’s tight control of operations and proceeds which the citizens objected to.  As far as the collection of debts was concerned, however, in demanding that `if debtors or their fellow-citizens (vel sui) come in the city, they may be distrained’, the Londoners had a clear precedent to refer to, for Henry I’s charter had licensed them to distrain for unpaid debts not only on debtors and their sureties, but also on other members of the debtors’ communities.  This privilege was not repeated in subsequent royal grants, possibly because although the practice in question was a widespread one, it was also much resented, and a number of towns obtained exemption from it.59

More generally, such issues may have been too specifically London-oriented to make Magna Carta the appropriate place for their remedy, if, indeed, any remedy at all was thought necessary.  Instead Clause 13, like King John, fell back on a general confirmation of the city’s liberties, rather more succinct than the king’s, and - crucially - omitting any reference to the chamberlain.  It might seem surprising, given the city’s importance to the barons, that the Londoners were given so little at this point in Magna Carta – a vague concession on aids, nothing on tallage, and a confirmation of liberties which was extended to all other towns.  But that confirmation had a wider application, in that Clause 13 made an overt declaration, in the context of a document addressed to all the free men of the kingdom, that London had rights which merited protection, and also gave public expression to the city’s leading position within the realm, one that was enhanced, moreover, by its mayor’s inclusion among the twenty-five barons responsible for the observance of the Charter.  Since the other barons were territorial magnates who could expect to impose tallages on their own tenants, urban as well as rural, perhaps it was unrealistic to expect them to support London’s claim to consultation.  The Londoners probably did as well as could reasonably have been expected in the circumstances, and well enough to cause them to remain in alliance with the barons.  John was naturally determined to recover the city if he could, and probably shortly after Magna Carta was issued he negotiated an agreement with the barons, under which the city was to remain in the hands of the latter, while Archbishop Langton would take command of the Tower, `saving to the city of London its liberties and its free customs’ (surely a deliberate echo of Clause 13), until oaths had been taken throughout the country to obey the twenty-five barons, and the king had given the redress demanded of him under the terms of the Charter.  If this had been done by 15 August, then both the city and the Tower were to be returned to the king, otherwise both were to stay under their existing controls until these conditions had been met.60

It was never likely that they would be, and already at the end of June there were rumours of an impending attempt by the king’s men to recapture the city by force.  For their part, the barons remained fully aware how crucial their hold on London was to their own safety.  As Robert FitzWalter, writing to William d’Aubigny at this time, observed: `You know well how great an advantage it is to you and to all of us to preserve the city of London, which is our place of refuge; and how great a shame and loss it would be to us, if by our own incompetence we were to lose it ...’.61  They did not do so, rather London stayed loyal to the baronial cause, and fell under the ban of the church as a result.  On 5 September 1215 papal delegates instructed Archbishop Langton and his suffragans to excommunicate rebels against the king, with the Londoners foremost among them, while on 16 December the pope himself ordered that John’s enemies, including `those citizens of London who were the prime movers in this wickedness’, should be excommunicated, and an interdict was laid upon the city as a whole.62  But the Londoners ignored these fulminations, claiming, according to Wendover, that secular affairs were none of the pope’s business.63  Their prominence thereafter among the king’s adversaries was such that the mayor and other citizens were included among the baronial representatives appointed for abortive peace negotiations in November 1215,64 and when John looked like attacking the city in the spring of 1216, it offered so belligerent a show of resistance that the king withdrew.65  The Londoners swore fealty to Prince Louis after he entered the city in May 1216,66 while five leading citizens, headed by the mayor (now William Hardel), lent him 1000 marks.67  The city’s alliance with Louis and the barons endured until the end of the civil war in 1217.

Urban rights and the exploitation of towns under King John

London may be said to dominate Clause 13, as it did English urban life, but it was not the only town whose interests were affected by it.  In article 32, the treatment of London with regard to tallages and aids was granted to `other cities which have such liberties’, but in Clause 12 nothing was said of places besides London, which alone among towns and cities was to benefit from the common counsel of the realm when an aid was demanded.  Instead the general confirmation of London’s liberties in Clause 13 was given a wide extension to `all other cities, boroughs, towns and ports’.  In part this may have been no more than a further compliment to the capital, emphasising its leading position among England’s urban communities, several of which had in fact been granted London’s privileges.  In 1189, for instance, Richard I granted Northampton the liberties and free customs of London, and in 1194 he did the same for Lincoln.68  But since many other towns and cities had suffered from John’s attentions, there was probably an issue of principle behind the decision to include them all among the beneficiaries of the Charter, as well as the hope of political advantage for the barons (who might have boroughs of their own, even of their own foundation).  John’s mobility had doubtless made him an unwelcome guest in many places, but his dealings with English towns are most easily observed in the charters he gave and the money he exacted.  The two often went together.  It was common practice for a new king to insist that the charters of his predecessors be confirmed by himself, in return for fines paid by their beneficiaries.  London itself bought a new charter, and so did many other places.  In 1199 Norwich agreed to give 200 marks for a charter of confirmation, and then like London was made to wait to receive it, for the charter was entrusted to the archbishop of Canterbury, who was ordered to keep it until the money was paid.69

New charters, of course, had to be paid for, even when their terms included an increase in the feefarms of the towns involved.  Derby in 1204 gave forty marks and two palfreys for the privilege of paying a feefarm which was £10 per annum higher than the previous one;70 Shrewsbury and Huntingdon made similar payments, and on the same terms, a year later.71  Towns which fell into debt to the king and lost their privileges as a result might have to add to their burdens in order to recover their rights.  In 1208 the burgesses of Southampton gave forty marks and two barrels of wine to have their liberties back, on condition that they paid all their debts to the king within a year.72  Winchester seems to have been treated in the same way.73  The fact that a town or city enjoyed rights granted by royal charter was no guarantee against its having to pay for them again.  In 1199 the citizens of Gloucester gave 200 marks `for having the same liberties as the citizens of Winchester have’,74 and then in 1206 they gave a further fifty marks and a palfrey `for having the town of Gloucester at farm as they used to, according their charter which they have from the lord king.’75  In 1213 the burgesses of Exeter offered the king six palfreys, worth £20, to be quit of lastage (export duties) and stallage (payments for market-stalls) `according to the sense (tenor) of the lord king’s charter which they have ...’ – the barons of the exchequer were instructed to use their judgment as to whether the offer should be accepted, raising the possibility that Exeter might have had to give more.76

Medieval burgesses suffered from ambiguities and uncertainties of status.  The fact that a town needed a grant of privileges to exist left it vulnerable to the demands of the grantor -  and never more so if that was the king - who would usually retain important rights of control over the community that he, or his forebears, had created.  The fact that those rights, and especially that of tallage, often took an arbitrary form, was not regarded as being in itself sufficient to invalidate them.  A king like John took what he could, as his need dictated and opportunity arose.  In 1200 the citizens of Lincoln paid 300 marks for a new charter, and just a year later had to give a further 700 marks, along with seven palfreys, to have the liberties which the king had so recently confirmed and to be cleared of an appeal of felony.77  In 1201 the king himself sued the townspeople for 102 marks which he claimed they owed him for a tallage,78 and their defence, that they only took tallages with the consent of the citizens, was clearly unsuccessful, since a `gift’ in 1202 was followed by a tallage later in that year.79  A few years’ respite was broken by a 200 mark amercement imposed at an eyre held late in 1208, followed by a 500 mark tallage in 1210.80  A year later an unidentified transgression cost the citizens 2000 marks, while a default which led to the city’s being taken into the king’s hand had to be redeemed partly in cash - £200 – and partly in cloth – 100 ells both of scarlet and of `good green’.81  By 1213 all but £45 of the first sum had been paid, but the mayor now had to raise a further 500 marks `for having the king’s benevolence’, with the whole city acting as guarantor.82  The king’s good will was evidently soon forfeited.  It did not prevent a further tallage of £500, seemingly to mark the end of the interdict,83 while in February 1216 the barons’ occupation of the city in the previous year probably supplied the justification for the exaction of a further £1000 from the townspeople.84  The much smaller and poorer city of Carlisle was tallaged at £20 in 1202 and £40 in 1214, with in-between the startling figure of 541½ marks (£361. 13s. 4d.), six times the city’s annual farm for which the sheriff accounted at the exchequer, in 1210.85  Unsurprisingly, the citizens opened their gates to the barons’ ally, the king of Scots, in 1215, `as King John had done them many injuries’.86  It seems reasonable to suggest that Clause 13’s sweeping confirmation of urban liberties and customs constituted an implicit rebuke to exactions like these, and that it also, and by extension, represented a significant stage in the process whereby English towns found a place defined by law within the larger community of the realm.

1

J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 290, 320-1.

2

A possibility suggested by David Carpenter.

3

C.N.L. Brooke and G. Keir, London 800-1216: the shaping of a city (1975), 34.

4

W. de G. Birch, The historical charters and constitutional documents of the city of London (revised edn., 1887), 3-4.  I have followed C.W. Hollister, Monarchy, magnates and institutions in the Anglo-Norman world (1986), 191-208, in attributing London’s first charter to the reign of Henry I.

5

The feefarm is not mentioned in his charter for London, issued early in his reign; Birch, 5-6.

6

J.H. Round, The Commune of London (1899), 229-33 (the farm); PR 2 ,3, 4 Henry II (1155-8), 4; PR 5 Henry II (1159), 2; PR 7 Henry II (1161), 18; PR 11 Henry II (1165), 33; PR 14 Henry II (1168), 3-4; PR 17 Henry II (1171), 15; PR 19 Henry II (1173), 186; PR 23 Henry II (1177), 201 (tallages etc.).

7

Brooke and Keir, 45-7.

8

Birch, 7-8; PR 6 Richard I (1194), 182.

9

PR 8 Richard I (1195), 296.

10

Brooke and Keir, 48-9; C.R. Cheney, Hubert Walter (1967), 93-4.

11

Birch, 11-12.

12

T.D. Hardy (ed.), Rotuli de oblatis et finibus (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 11.

13

W. Cunningham, The growth of English industry and commerce i (5th. edn., Cambridge, 1910), 617-18.

14

PR 5 John, 9.

15

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter RLP), 33.

16

Rot.Ob.Fin., 185-6; PR 4 John (1202), 288.

17

PR 6 John (1204), 98, 99.

18

PR 9 John (1207), 51.

19

T.D. Hardy (ed.), Rotuli Litterarum Clausarum i, 1204-1224 (Record Commission, 1833 – hereafter RLC), 35.

20

Ibid., 64.

21

British Library, MS Additional 14252, fol. 110.

22

Round, Commune of London, 237-42; M. Bateson, `A London municipal collection of the reign of John’, English Historical Review 17 (1902), 507-8.  Neither Round nor Bateson seems to have been aware of the order on the close roll.

23

PR 8 John (1206), 58; PR 13 John (1211), 133.

24

PR 9 John (1207), 53.

25

PR 10 John (1208), 169.

26

PR 13 John (1211), 135.

27

PR 16 John (1214), 81.

28

Brooke and Keir, 53.

29

PR 14 John (1212), 44-5; PR 16 John (1214), 125.

30

John’s military preparations and plans at this time are discussed by S. Painter, The reign of King John (Baltimore, 1949), 302-8.

31

RLC, 198.

32

R.A. Brown (ed.), The memoranda roll for the tenth year of the reign of King John, 1207-8, Pipe Roll Society, new series 31 (1957), 135 [a fragment of a close roll].

33

PR 17 John (1215), 33.

34

H.R. Luard (ed.), Annales Monastici, 4 vols (Rolls Series, 1864-9), iii: Annals of Dunstable, 35.

35

Bateson, `London municipal collection’, 726-8.

36

Brown, Memoranda roll 10 John, 133.

37

H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur Flores Historiarum, 3 vols. (Rolls Series, 1887), ii, 116-17.

38

J. Stevenson (ed.), Radulphi de Coggeshall Chronicon Anglicanum (Rolls Series, 1875), 171.

39

RLP, 135.

40

Ibid., 136.

41

Ibid., 137.

42

F. Michel (ed.), Histoire des ducs de Normandie et des Rois d’Angleterre (Société de l’Histoire de France, Paris, 1840), 147.

43

Wendover ii, 116-17

44

W. Stubbs (ed.), Memoriale Fratris Walteri de Coventria, 2 vols. (Rolls Series, 1873), ii, 220.

45

Coggeshall, 171.

46

Coventry ii, 221; according to the same chronicle, the Tower was captured by Prince Louis in 1216, ibid., 233.

47

RLP, 137.

48

F. Madden (ed.), Matthaei Parisiensis ... Historia Anglorum, 3 vols. (Rolls Series, 1869), iii, 232.

49

Wendover ii, 117.

50

F. Liebermann (ed.), Die Gesetze der Angelsachsen, 3 vols. (Halle, 1903-16), i, 635-7, 655.  See also Holt, Magna Carta, 93-5;  B.R. O’Brien, God’s peace and king’s peace: the laws of Edward the Confessor (Philadelphia, 1999), 118-19.

51

Holt, Magna Carta, 55-60.

52

Ibid., 56; T. Stapleton (ed.), De antiquis legibus liber: Cronica maiorum et vicecomitum Londoniarum, Camden old series 34 (1946), 2.

53

Michel, Histoire des ducs, 118-19.

54

RLP, 73.

55

Bateson, `London municipal collection’, 726.

56

Birch, 19-20.

57

D.C. Douglas and G.W. Greenaway (eds.), English Historical Documents ii: 10420-1189 (2nd. edn, 1981), 1030.

58

M. Allen, Mints and money in medieval England (Cambridge, 2012), 49-57.

59

A. Ballard, British borough charters, 1042-1216 (Cambridge, 1913), 165-6.

60

Holt, Magna Carta, 481-3, 490-1.

61

Wendover ii, 137-8.

62

N. Vincent, Peter des Roches: an alien in English politics, 1205-1238 (Cambridge, 1996), 124; C.R. Cheney and W.H. Semple (eds.), Selected letters of Pope Innocent III concerning England (1198-1216) (1953), 222.

63

Wendover ii, 171.

64

RLP, 158.

65

Coggeshall, 180.

66

Wendover ii, 181; Coggeshall, 181-2.

67

H.M. Chew and M. Weinbaum (eds.), The London eyre of 1244, London Record Society 6 (1970), nos. 195, 316.

68

Ballard, British borough charters, 10; J.W.F. Hill, Medieval Lincoln (Cambridge, 1948), 191.

69

Rot.Ob.Fin., 29.

70

Ibid., 223.

71

Ibid., 250, 299.

72

Ibid., 433.

73

Ibid., 431.

74

Ibid., 17.

75

Ibid., 360-1.

76

Ibid., 481.

77

Ibid., 1, 113.

78

Curia Regis Rolls i, temp. Richard I-1201 (1922), 418-19.

79

Hill, Medieval Lincoln, 194.

80

PR 11 John I1209), 53; PR 12 John (1210), 19.

81

PR 13 John (1211), 61.

82

PR 14 John (1212), 111.

83

PR 16 John (1214), 154; PR 2 Henry III (1218), 94.

84

Hill, Medieval Lincoln, 197-9.

85

PR 4 John (1202), 257; PR 12 John (1210), 139; PR 16 John (1214), 140.

86

F. Palgrave (ed.), Documents and records illustrating the history of Scotland, 2 vols. (Record Commission, 1837), i, 74.

Referenced in

Clause 60 (The 1215 Magna Carta)


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Original Latin

XIV

Et ad habendum commune consilium regni, de auxilio assidendo aliter quam in tribus casibus praedictis, vel de scutagio assidendo, summoneri faciemus archiepiscopos, episcopos, abbates, comites, et majores barones, sigillatim per litteras nostras; et praeterea faciemus summoneri in generali, per vicecomites et ballivos nostros, omnes illos qui de nobis tenent in capite; ad certum diem, scilicet ad terminum quadraginta dierum ad minus, et ad certum locum; et in omnibus litteris illius summonitionis causam summonitionis exprimemus; et sic facta summonitione negotium ad diem assignatum procedat secundum consilium illorum qui praesentes fuerint, quamvis non omnes summoniti venerint.

14

And in order to have the common counsel of the kingdom for the levying of an aid, other than in the three instances aforesaid, or for the levying of scutage, we are to cause the archbishops, bishops, abbots, earls and greater barons to be summoned individually by our letters; and moreover we are to have a general summons made, through our sheriffs and bailiffs, of all who hold in chief of us; for a fixed day, at least forty days thence, and at a fixed place. And in all the letters of summons we are to set out its cause. And after the summons has thus been made the business is to go forward on the appointed day according to the counsel of those present, even if not all those summoned have come.

Audio commentary

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Commentary for academic researchers

Taking counsel

Clause 14 is the necessary corollary of Clause 12 of Magna Carta, laying down how the financial exactions which were brought under control by the latter should be levied in future.  That it has no equivalent among the Articles of the Barons seems less likely to have been the result of oversight than a reflection of the uncertainty among the barons as to how fiscal affairs which had hitherto been largely or wholly controlled by the king should be treated, an uncertainty perhaps shown in Clause 12 by the imprecision of its demand that conventional aids should in future be `reasonable’.1  The issues dealt with by Clause 14 had probably still been under discussion when the Articles were drawn up.  Clause 12 ordered that scutages and `extraordinary’ aids were to be taken only `by the common counsel of our kingdom’, meaning that they were first to be discussed, and assented to, by the great men of the realm.  Clause 14 reinforced that stipulation by defining how that assent was to be obtained, and from whom, and in doing so underlined the extent to which the magnates envisaged for themselves a role in the levying of taxes which went beyond merely deliberating upon what the king proposed.  For scutages, at least, the `Unknown Charter’ had suggested a fixed rate of one mark (13s. 4d.) per fee.2  Clause 14 did not attempt anything like this, rather it postulated active involvement by the barons in proceedings at which proposals for taxes, presumably for purposes and at rates which the king proposed, were debated and appraised before they were imposed, and – by extension - might even be rejected altogether.

Following the disappearance after 1162 of danegeld, which had been imposed many times by Anglo-Saxon and Anglo-Norman kings, the re-emergence of what may be called general taxation, levied nation-wide and at regular intervals, was a development of the late twelfth century, starting with the `Saladin tithe’of 1188 – Henry II had otherwise taken only seven scutages in a reign of thirty-four years, along with an aid for his daughter’s marriage in 1168, and usually preferred to raise money by other means.  Richard I’s reign saw more frequent and heavier demands, above all for the king’s own ransom, but also to pay for continuous warfare overseas, mostly in Normandy, and these in turn intensified under King John, whose scutages, in particular, were so numerous (eleven in seventeen years) that by 1215 the barons must have been contemplating the prospect of a series of yearly assemblies to discuss them. 

The issue of consent to these exactions was addressed in Clause 12, which laid down that aids and scutages were only to be taken by `the common counsel of our kingdom’.  Counsel was in fact fundamental both to that clause and to Clause 14.  It was one of the most important services which a lord could demand from his men.3  The ability to give good counsel was a virtue which carried as much weight as military prowess in the chivalric world, and constituted one of the defining characteristics of that world’s ideal figure, the preudomme, the soldier whose abilities as a man of affairs enabled him to flourish above all in the courts, as well as in the armies, of kings.4  The worldly wisdom which made the advice of the preudomme worth having was essentially an acquired virtue.  For the magnates – few of whom were likely to deny also being preudommes  –a capability for giving counsel to monarchs constituted an inherited, even innate, quality which arose from their rank.  On either ground they expected to be asked for their advice over matters affecting themselves and the kingdom which they saw themselves as representing, and they also expected their advice to be heeded.

As far as the procedure for granting them was concerned, Clause 14 probably demanded much that was familiar, and in theory, at least, uncontroversial.  Attendance was perceived in terms which would once have been defined as `feudal’, that is, made up of the most important men in the realm, ecclesiastical and lay, who were united in being tenants-in-chief, holding their lands directly from the king.  All were regarded as entitled to be summoned to give counsel, but Clause 14 took cognizance of differences in consequence and power when it distinguished between the `greater’ barons, who were to be summoned individually, and the rest, who were to be convoked through a general summons administered by local officials (it seems reasonable to surmise that the abbots were treated likewise – the heads of great monasteries like Westminster or Peterborough could surely have expected to receive a personal summons, those of lesser houses, places like Buildwas in Shropshire or Darley in Derbyshire, must have learnt what was afoot in their respective county courts).   There was nothing new about the issuing of a twofold summons, it had been standard practice under Henry I, and may even have originated under William I.5  Its being prescribed in 1215 as the basis for grants of taxation may well reflect the pressure which men of knightly rank were now able to exert upon their lords and also, through their growing involvement in local government, upon the king – they knew their own importance, and accordingly felt that they had a right to be involved in fiscal decision-making.  It is strongly indicative of the autocratic character of John’s kingship, however, that either the magnates or the tenants-in-chief who fell short of baronial status, or both, should have found it necessary to insist upon such involvement, and the same is true of the other stipulations in Clause 14 - that at least forty days’ notice was to be given for a gathering at which counsel was to be given, at a specified time and place, and with the reason for the summons being spelt out. 

The less important tenants-in-chief, who could still have been substantial men in their localities, especially if they were also sub-tenants of magnates - honorial barons – would also have been affected by the king’s financial demands, raising the possibility of assemblies at which taxation was discussed being attended by literally hundreds of people.6  This may have sometimes happened in the years after 1215, but probably only on exceptional occasions.  For whereas the magnates might have regarded attendance at a council as an obligation attendant on their rank, lesser men might well have regarded it as likely to be expensive, time-consuming and even unnecessary – when a seventh was imposed in 1203, and the bishop of Salisbury gave instructions that its collection be discussed in the rural chapters of his diocese, he found that barely a tenth of the clergy turned up, and that those who did would not respond in the absence of their more important colleagues.7  The response of the laity may sometimes have been similar, so that the provision of even a rudimentary agenda would have helped lesser men to decide whether they wished to go, and enabled them to lobby their superiors if they chose not to (like the king, the magnates were expected to consult their leading tenants).  And since the proclamation of a summons would presumably have been made publicly, in shire courts, the honorial barons could themselves have been lobbied by their tenants in advance of a council. 

Clause 14’s provision that business should proceed even if not all those summoned were present may simply have been intended to prevent the wasting of time, but was probably influenced by wider considerations, affecting both the king and the barons.  From the point of view of the king, as the summoner and as the person who needed the money which the assembly had been convoked to grant, he had a clear interest in expediting proceedings, so much so that it has been suggested that it was John who secured the addition of this stipulation to the Clause.8  And the king likewise stood to benefit from a provision which would have prevented absentees from refusing to contribute to an aid which had been granted by an assembly to which they had been summoned but which they had not attended.  On the other hand, the obvious possibility that confronted by likely baronial recalcitrance, John might have resorted to delaying tactics, urging that nothing could be done in the absence of, say, the bishop of Winchester or the earl of Arundel, while he made last-minute attempts to pack an assembly with his own supporters, gave the barons equal grounds for insisting on punctuality.  More certainly, the insistence on a fixed time and place, though obviously relevant to the convenience of those attending a council, must have been primarily designed to counteract John’s restlessness, which kept him and his court continually on the move.  But although the clause sheds a revealing light on aspects of the physical character of John’s kingship, its primary focus went beyond that, to the very nature of his governance, of which the advice he was given, and the entourage from which he received it, formed an essential component. 

Formal and informal consultation

As with his father and older brother, much of John’s counsel-taking was essentially informal, and involved a relatively small number of intimates – his familiares – men whose judgment he trusted.  There was no fixed council, he turned to the men at hand whose advice he thought most likely to be useful.9  When in 1213, for instance, he received an appeal for help from the embattled Count Ferrand of Flanders, John called the bishop of Winchester, the earl of Salisbury and others to a council, and then brought in two Flemish exiles, the count of Boulogne and Hugh de Boves, presumably so that they could give expert guidance.10  The council which was summoned on this occasion seems to have been a casual, almost ad hoc, affair, and only a few of the men present at it were named.  Similar gatherings can perhaps be identified by a coincidence of business and attendance, even though no formal council is recorded.  There is no surviving evidence for a council at Westminster on 24 March 1204, for instance, when a dispute between the earl of Leicester and the bishop of Lincoln was settled by a fine made in the presence of Archbishop Hubert Walter (who was also chancellor), the justiciar, Geoffrey FitzPeter, six bishops, five earls, the count of Evreux, William de Briouze, William Brewer, `and other our barons and liegemen’, but the rank of the disputants, and the importance and number of the men in attendance suggest either that a council had been in progress at the time, or that an assembly convoked for some other purpose had been adapted by the king for the performance of what must have been conventional conciliar business.11  

Formal assemblies were undoubtedly held, but it is not always easy to identify them, or to tell who attended them and what business they did.  References in chronicles may coincide with gaps in record sources, and even when they do not, witness-lists from the time of a council cannot be assumed to provide a complete guide to those who were present at it.  The king’s opponents were no doubt less likely than his supporters to be named as attending.  At a council held at Oxford in late March 1205 (discussed further below), for instance, the men known to have been there were almost all the kind of bishops, officials and courtiers who were usually in attendance on John.  His adversaries may not have been called upon to attest the charters he issued at this time, or they may have kept away from the king and departed early.  It is often possible, however, to plausibly amplify the record of attendance with the names of the men known to have been in the king’s company for a few days on either side of a known assembly, since it seems unlikely that everyone who came to a council did so only in order to be present at it, and also by the record of grants and favours bestowed at the time – a council must often have been an occasion at which important men negotiated gifts and rewards, for themselves or their friends and subordinates, in return for their support, especially when the king needed a tax.  Magnates who received benefits at the time of a council probably also attended it.

The business of a council could be highly technical, and this may sometimes have reduced its attendance.  In the spring of 1201, exchequer regulations concerning the payment of debts to the king were drawn up after discussions at Windsor involving the king `and certain magnates of his land ...’.12  John and his advisors probably met on 16 April, when the king is known to have been at Windsor, along with Archbishop Hubert, the justiciar, William Marshal, earl of Pembroke, the bishop of London (William de Ste Mère-Église, a long-serving administrator specialising in exchequer business), William Brewer (also a financial expert), and two others, while when the king moved to Westminster he had three more earls and two other bishops in his company, together with Robert of Thornham, another experienced administrator.13  The ordinance issued at Windsor had important consequences, but it seems to have been discussed by a relatively small number of people, some of them, like the chancellor and justiciar, no doubt present ex officio, or because of their understanding of the workings of the exchequer, but others, notably William Brewer, because they were habitually close to the king and were continually involved in government, in many different capacities, as and when the king ordered them. 

The same was probably true of the ordinance for the reform of the coinage, the so-called `Assize of Money’, which John declared had been drawn up `by the common counsel of our kingdom’ when he sent it to its enforcers from Winchester on 26 January 1205.14  With him at around that time were the earls of Salisbury and Chester, and Roger de Lacy, constable of Chester, otherwise his recorded entourage consisted entirely of courtiers and administrators.15  As well as the archbishop of Canterbury and the justiciar, they included Peter des Roches, the dominant figure in the king’s chamber; Simon of Wells, bishop of Chichester, and Hugh of Wells, later bishop of Lincoln, both of whom served the king, and also Hubert Walter, as clerks in chancery; the justice and sheriff Hugh of Chalcombe; the chamber clerk Walter Mauclerk; and a number of men who served the king as and when he chose to employ them – Peter of Stokes (a steward of the household), Geoffrey de Lucy and Alan Basset.  The abbot of Forde was doubtless there as the king’s confessor.  There seem to have been more men present on this occasion than there had been at Windsor, but their identities and occupations suggest a gathering of professional men rather than any kind of national assembly, as perhaps was inevitable given the specialised nature of the business done.

When the business to be considered at a council had a more obviously public character, attendance could be larger.  Gervase of Canterbury records an assembly of lay and ecclesiastical magnates at London in the spring of 1204, at which it was agreed that an embassy should be sent to negotiate peace with the king of France – it was most likely held sometime between 21 and 29 March, while John was at Westminster, and was probably also the occasion for an ordinance on the rather less pressing subject of the weight of bread in Winchester, described as issued at Easter (31 March).16  Those recorded as having been in attendance on the king at that point would have constituted a gathering very like that at Windsor in 1200, but as the gathering moved towards the south coast - the ambassadors (the archbishop of Canterbury, two other bishops and two earls) all attested a charter at Portsmouth on 11 April, probably immediately before their embarkation – other names appeared among the witnesses to royal charters, notably the earls of Chester, Hertford (or Clare) and Hereford.17  Chester was later a staunch royalist, but in 1204 his relations with John were very strained, while Hertford and Hereford were never close to the king and both ultimately rebelled against him.  Probably they had attended the council – perhaps all the earls were summoned to it – but had not been closely involved in its discussions, and only found opportunities to join the circle round the king afterwards.

In this case the business of the council must have been arranged in advance – the embassy could hardly have been improvised, having decided that the time was right to negotiate with the French, John must have known who he wanted to send as his ambassadors, and made sure of their presence at Westminster (in fact he had totally misjudged the military situation in Normandy, and nothing was achieved).  Further glimpses of organisation are provided by a well-known case heard coram rege in late June 1204.  William Marshal was in dispute with the countess of Meulan and the earl of Devon over the manor of Sturminster, which was then in the king’s hand, and pursued his claim to it when John arrived at Sturminster Newton on his way through Dorset.  The litigants could not agree, and on subsequent days only the Marshal came into court, where he continued to prosecute his case.  John’s response was to take the advice of his entourage: `who, since there were few men with him, nor, as they said, did they often see such a case come up, they advised that the whole case be deferred to the morrow of the Assumption [16 August], when the lord archbishop and other men, magnates and men of wisdom [sapientes] in the land, could be involved ..’.  The Marshal objected, but the king insisted that the status quo should be maintained for the time being.18 

The king was at Sturminster Newton on 27 June, when his recorded companions were the earl of Salisbury (his half-brother), Hugh de Neville, the chief forester, and Warin Fitzgerold, baron of Stogursey, Somerset, and as chamberlain of the exchequer a man often in attendance on the king.  Two other men who were regularly active as royal agents, John FitzHugh and Thomas of Sandford, may also have been present, along with the butler of the justiciar, but not, it seems, the justiciar himself.19  It was not a group likely to be able to offer expert advice on a complicated lawsuit, and it is easy to see why its members should have been anxious to pass responsibility for it to others.  Perhaps it was for the same reason that the Marshal was eager to have an instant ruling, but though he had to wait, he eventually obtained what he wanted.  The council planned for 16 August seems to have been postponed, in favour of an assembly at Woodstock arranged for 5 September,20 when Archbishop Hubert, the justiciar, the bishop of Norwich, three earls (including the Marshal) and a number of administrators were present.21  Several of them served at some point as royal justices, notably Simon of Pattishall, the leading member of John’s judiciary, and no doubt it was on their advice that on 9 September the king ordered the men of Sturminster to obey William Marshal as their lord.

This was not the only occasion on which John took counsel at this time, however.  On 31 August he wrote to the justiciar of Ireland, ordering him to act with regard to the king of Connaught in accordance with a report he had sent him, one which had been approved `by us and our council’.22  The king was then at Geddington, where he had dealt with Irish business on the two previous days.23  The Marshal had come to Geddington with John on the 29th.  As lord of Leinster he was a powerful man in Ireland, and may have been summoned to discussions for that reason, or he may simply have decided to remain with the king until his own affairs were dealt with, in case anything of importance to him was dispatched in his absence – John may have been taking advice in the days before he reached Woodstock, but apparently from noticeably fewer people than he had around him following his arrival there.  The Marshal would have been right to be wary.  Councils could be very formally staged.  An account of an assembly convoked in 1204 or 1205 following the loss of Normandy tells how John called his whole council together and asked them how he should deal with men who held lands both of himself and the king of France and wished to continue doing so, and how the aged count of Aumâle, though crippled with arthritis, was called upon to speak first, because the king had always found him reliable and faithful (loial et feel), and proceeded to give his opinion in carefully weighted words.24  But on a number of other occasions John took advice in a much less punctilious manner.

Coggeshall’s account of John’s dealings with the Cistercian abbots at Lincoln late in 1200 provides a good illustration of how he could operate.25  In his efforts to raise the 20,000 marks which he had agreed to pay the French king under the treaty of Le Goulet, John tried to tap the resources of the Cistercians, who resisted at first, and then made what the king regarded as a totally inadequate offer.  The king’s response was to harass them severely, until they tried to come to terms with him at Lincoln, where John had gone for the interment of the late bishop, Hugh of Avalon, with a large and distinguished retinue.  Coggeshall describes how after mass on 26 November the abbots had abased themselves before the king, begging him to treat them mercifully, and how John had then gone into his chamber with the assembled magnates, with the Cistercians trooping in behind.  But no public debate ensued, for John withdrew into a closet (cubiculum) with just two or three others from among the great men there, for lengthy discussions as to how the Cistercians should be dealt with, and when he emerged he sent for Archbishop Hubert (who had not been one of this select group, perhaps because he had spoken up for the monks) and talked further in private with him, while the abbots continued to stand around in the king’s chamber, before at last the archbishop announced that John was granting them his peace.  On the evidence of royal charters from late November 1200, the king’s advisers on this occasion were probably drawn from a small group made up of the justiciar, the bishops of London, Bath and Glastonbury, and Norwich (John de Gray, who had been in John’s service before he became king and always retained his confidence), William Brewer, Hugh Bardulf and Simon, archdeacon of Wells – royal servants and tried agents of government to a man.26

Similar glimpses of informal counsel, plausible though not given by an eye-witness, are provided by the History of William Marshal.  One describes how in November 1207, when John was staying in Gloucester Castle, the Irish justiciar, Meiler or Meilier FitzHenry, hatched a plot to undermine the position in Ireland of William Marshal and William de Briouze, when `after dinner, it so happened that the King came into his chamber in the company of Gerard d’Athée, of Meilier also, and of all his chief councillors, who liked to advise him ...’, while another records how in 1210, after the Marshal had defended himself against charges of treacherously assisting the fugitive de Briouze, the angry king `went into his chamber and spoke with those present there’, who managed to calm him and persuade him to be reconciled to the Marshal.27  In 1207 the chancellor, Walter de Gray, was at hand to prepare letters for dispatch to Ireland, while the bishop of Norwich, the earl of Winchester, Roger de Lacy, constable of Chester, and Peter FitzHerbert are named as present on this second occasion.  In both cases there were certainly others available whom the king could have consulted,28 but these anecdotes show him preferring to take advice from men regularly found in his entourage – Lacy played dice with the king, while Gray, whatever his official position, was unreservedly loyal to him. When policy could be decided in this way, behind closed doors, in an atmosphere of what can only be called cronyism, and directed, moreover, against one of the greatest of their number, it is easy to see how the magnates should have become deeply distrustful of John’s methods of taking counsel, and of the men who gave it to him, in matters of finance and everything else.

The question of numbers

John’s constant mobility was a further hindrance to the giving of what the barons would have regarded as proper counsel.  His practice of taking advice from the men to hand, who changed continually as he moved from place to place, must have been a further consideration behind the requirement in Clause 14 that meetings at which proposals for taxation were discussed should be held at fixed times and places – only thus could the assembling magnates could be confident that they would outweigh, and outnumber, such of the king’s friends and followers as happened to be with him at any given moment, even though the latter might also be bishops and barons.  As it was, for much of John’s reign councils tended to be short, with business sometimes being rolled over from one session to the next, no doubt to the inconvenience of those attending them.  A whole series of councils appears to have been held in the spring of 1205, dominated by military affairs - there was a danger of a French invasion, and the king also planned to lead an expedition to Poitou.  Thus a confrontational assembly at Oxford, at which the king was obliged to promise to uphold `the rights of the kingdom of England’ (a pointer to the way the magnates saw themselves as embodying those rights), and then the earls and barons swore to perform the service they owed him, can be shown to have lasted for only three days at the most, from 27 to 29 March.  The announcement of a scheme, issued on 3 April, whereby throughout England every nine knights would unite to finance a tenth, well equipped `for the defence of our realm’, presumably resulted from this gathering, which, however, may have been less fully attended than is suggested by the claim that the king was acting `with the assent of archbishops, bishops, earls, barons and all our liegemen of England’.29  One archbishop – Hubert Walter – was recorded as present, along with four bishops and four earls (one of them the justiciar), and a further sixteen men, several of whom were indeed barons (though often through royal patronage), but two were primarily justices, and some – Peter of Stokes, Philip de Lucy, Robert of Ropsley – were essentially government men, of the kind who might be attendant on the king at any time without necessarily attaining any great status by doing so.30  Only the earl of Hertford, William d’Aubigny and Walter de Clifford were rarely found in John’s entourage.  Perhaps they had been among the magnates who had extracted an oath from the king, but who the others were is unknown, and they may well have been cold-shouldered while the subsequent proceedings lasted.

But whoever the king’s opponents had been at Oxford, they, or some of them, must soon have received a further summons to wait upon the king.  Not perhaps for the gathering at Dover at which on 18 April 1205 John announced arrangements for galleys to protect the English coastline, as made `by the common counsel of our barons’31 – in fact only the archbishop, the justiciar, two earls, one bishop and the usual handful of apparatchiks can be shown to have been with the king at this time – but for what must have been a larger gathering planned for Northampton on 22 May, timed to coincide with an army muster – by way of preparation John directed that fifteen barrels of wine be sent there.32  Orders for this council were sent out no later than 29 April 1205 (a good deal less than the forty days notice required under Clause 14).  But around the same time, in what seems to be an example of the confusion which could attend John’s policy-making, no doubt arising from its improvisatory, even impromptu nature, he arranged for another council to be held on 15 May in London.  The bishop of Salisbury was ordered to attend, since the king wished to have his counsel, and that of `the other magnates of our land’, and he was also instructed to arrange for the heads of the religious houses in his diocese to attend.33 

Such provision is fully in keeping with Gervase of Canterbury’s report of a council at London, which was attended by bishops, earls and barons, all of whom swore fealty to the king, and which promulgated -`with the assent of the king and of all the magnates of England’ – detailed regulations for the defence of the realm.34  But the impression Gervase gives of a throng of bishops and barons is hardly borne out by the admittedly scanty record of the men in attendance on the king at this time - a charter for Margam Abbey, issued on 15 May, was witnessed by Archbishop Hubert, the bishop of Ely, the justiciar, the earl of Winchester, and four other men, two of whom had been at the Oxford assembly.35  It is possible that insufficient notice had been given, but no less likely that John was only paying lip-service to the need for consultation, and was only too happy – especially after what may have been a bruising encounter at Oxford - to issue orders for national defence without waiting to receive advice from men he had nominally summoned to give it.  He left London no later than the 18th, and travelling via Ongar and Bury St Edmunds was at Northampton on 21 May.

John did not stay long at Northampton – he left on the 23rd, so if Sidney Painter was right to surmise that the king hoped to use a combination of alcohol and epic romance to befuddle his barons into following him overseas, he must have been quick about it.36  But there was undoubtedly a substantial gathering, perhaps involving people who had been unable to get to the London council in time.  No monastic heads are recorded as attending the king, but the abbot of Peterborough took the opportunity to obtain writs of novel disseisin and precipe for an action against the abbot of Crowland,37 while several other abbots and priors litigated in the court coram rege while it sat in Northampton,38 raising the possibility that they or their representatives had come to attend the council, after failing to gather in London.  Inevitably, the archbishop of Canterbury and the justiciar were present.39  Only one other bishop (Durham) is known to have been there, but in view of the gathering’s likely secular business, perhaps that is not surprising, and the number of lay magnates in attendance was certainly higher than it had been in London, and more distinguished than it was at Oxford, with the earls of Chester, Winchester, Hereford, Huntingdon, Norfolk, Oxford and Warenne, along with the count of Aumâle and important barons like Robert FitzWalter, Robert FitzRoger (lord of Whalton, Northumberland) and William d’Aubigny.  It may have been thanks to a rare effort to make such men feel close to and valued by the king that none of the royal justices attested alongside them, while of John’s usual associates, only Roger de Lacy and (two days after the council ended) Peter of Stokes did so.  What business these men did on this occasion is unknown, however; perhaps the main purpose of the meeting was to plan the forthcoming French campaign, which in the end never happened, since John, for once accepting unwelcome advice, reluctantly allowed himself to be persuaded not to cross the Channel.40

Clause 14 was specifically concerned with the granting of taxes.  The assemblies reviewed so far dealt with other matters, though these were usually likely to be important to the magnates, and indeed often had significant financial implications, making the conditions prescribed for the king’s taking of counsel by Magna Carta no less relevant to other baronial interests.  But in one case it is possible to use the methods employed so far to analyse a major financial imposition.  John returned from a relatively successful expedition to Poitou in December 1206, and immediately set about raising the money needed for his next campaign.  For this purpose, according to the Waverley annalist, a council was summoned to meet in London on 8 January 1207, to consist of `archbishops, bishops, abbots and priors, earls and barons, and the magnates of the kingdom’,41 but possibly only the churchmen attended in any numbers – at any rate the king is said to have addressed himself to them alone - and they refused to cooperate, whereupon the council was adjourned to Oxford, where it was to meet on 9 February.  John was at Westminster on 8 January, and by the 10th he had moved to Lambeth, while on the 12th he was at Reading, when an ordinance was issued, `on our order and by the counsel of our barons’, concerning the price of lampreys.42  Possibly this was all the council had been able to agree upon, but since John’s known retinue at this time was very small, consisting only of the justiciar, the bishop of Winchester, William Brewer and two others,43 he may simply have misrepresented the involvement of the magnates, not for the first or last time.

It is possible that the notice given of the council at London had been insufficient, but it is hard to see that its successor at Oxford was very much better attended.  It, too, was brief.  John arrived a day late, having still been at Farringdon on 9 February, and after spending the 10th and 11th in Oxford he had reached Woodstock by the 12th, and Brill in Buckinghamshire by the 14th.44  Recorded attestations during these days were scanty, but though they may accurately represent the domination of the king’s entourage by his familiares, trusted servants and long-time members of John’s court like Peter des Roches, William Brewer, William of Wrotham and Thomas of Sandford, joined with important agents of government like Eustace de Fauconberg and Gilbert FitzReinfred, they clearly do not fully reflect attendance at the council.  It is inconceivable that the justiciar should not have been present, and a grant made on 9 February, at Geoffrey FitzPeter’s petition and for the love of the bishop of Norwich, surely demonstrates that he was indeed in attendance on the king, probably along with the bishop, as no doubt were the earl of Winchester, on whose behalf a writ was dispatched on the 10th, Robert de Ros, a leading northern baron, the beneficiary of two letters sent on the 11th, and William de Briouze, following whose complaint a letter was sent to the justiciar of Ireland on the 12th.  But although these men added to the numbers at the Oxford council, they can have done nothing to alter its complexion, or to cause it to be any less dominated by men in favour with John and willing, if not positively eager, to serve his interests.

When the council assembled, John once more demanded a grant from the clergy, and was again refused, whereupon he `took better advice’ and instead imposed the heaviest levy of the reign, a thirteenth of revenues and movables.  According to the writ sent to the sheriffs giving orders for the collection of the tax, it had been authorised `by the common counsel and assent of our council’, which may well have been true, since the latter’s composition was such that the king could have relied on its concurrence.45  But when a writ sent to the clergy of the vacant province of Canterbury on 26 May 1207 described the thirteenth as having been granted by `the archbishop, bishops, abbots, priors and magnates of our kingdom’,46 it is difficult to take the claim seriously – opposition to the tax was widespread, led by the very archbishop (Geoffrey of York) who was named first in the writ as having consented to it.47  It is true that the Waverley annalist described the council as involving `an infinite multitude of prelates of the church and magnates of the kingdom’, but there is no other discernible evidence for their presence, and even if such throngs did attend, it is hard to see how they could have contributed much to proceedings which were controlled by the king’s intimates and lasted for only two days.  The claim of participation, like the thirteenth itself, may well have rankled with those who had allegedly concurred in it, so that one of the main aims of Clause 14 was probably to ensure that such assertions had greater authenticity in the future.

The quality of counsel

It may have been characteristic of John’s style of government that though the writ ordering collection of the thirteenth was said to have received conciliar assent, it was issued under the king’s sole authorisation – teste me ipso - as if to underline his own responsibility for it.  Perhaps it did not occur to him that it might have been politically expedient for him to share the resentment certain to be aroused by this onerous measure with the councillors who had assented to it, by naming them, too, as witnesses.  As it was, his autocratic tendencies increased, and he did not hesitate to take action against councils held by others of which he disapproved – in May 1207, professing to be responsive to the outcry of his subjects and their fears of loss, he prohibited an ecclesiastical assembly at St Albans which he had heard was about to discuss making increased payments to the pope.48  He continued to take advice in the years which followed, but his reliance on a small group of intimates when doing so did not diminish, and outsiders to the circle of his familiares who hoped to influence him, however great their eminence, might find it hard to do so. 

One man who understood this was William Marshal.  On 7 March 1208, John wrote to the justiciar of Ireland describing, with evident irritation, how the Marshal had joined him at Bristol, despite not having been summoned to do so.  The king was on his way to a council at Winchester, arranged for the 12th, and suggested to the Marshal that he go and inspect his nearby estates in the meantime, but William refused to take the hint, and insisted on accompanying John every inch of the way – pedetentim.49  The council duly met at the time and place prescribed.  Its main business was probably a confrontation between Simon Langton, acting on behalf of his brother Stephen, the would-be archbishop of Canterbury, and a group of prelates revealingly described as `our bishops’50 – Winchester, Norwich, Salisbury, and Bath and Glastonbury were the only ones recorded as being with John around this time, and the first two, in particular, were among John’s closest advisors.51  But either then or immediately afterwards, when the court moved on to Marlborough, there was probably an ordinance issued relating to coastal shipping, and also important Irish business – the making of peace between the king and both Walter de Lacy and William Marshal himself, and perhaps a directive for action against Irish thieves.  No doubt it was the knowledge that this was on the agenda, and his consequent determination not to be excluded from the king’s counsels, which kept William in daily attendance on John, in what may not have been entirely congenial company, since alongside the justiciar, the chancellor (William de Gray), the earls of Derby and Salisbury and William de Briouze, the king was also accompanied by the usual group of household men – William Brewer, Hugh de Neville, the steward William de Cantilupe, and other trusted curiales, the sort of intimates with whom John had conspired to ruin him in the previous year, and whom the Marshal could reasonably have feared might again use their access to the king’s ear to his disadvantage.

The predominance of such men can only have been accentuated after first the interdict, imposed on England on 24 March 1208, and then John’s excommunication, proclaimed on 8 November 1209, led to the withdrawal of almost all the English bishops from his retinue.  Only Winchester and Norwich continued to serve him, giving his court an increasingly secular, and indeed military, complexion.  This can be seen in the famous list of John’s `evil counsellors’ entered by Roger of Wendover in his account of the events of 1211.52  It contains both errors and omissions, but still gives an accurate impression of John’s day-by-day entourage.  Only three bishops were included, Winchester, Norwich and Philip of Durham, who had in fact died three years earlier.  The other twenty-nine names were mostly those of men who had appeared regularly as attending the king, receiving orders from him and witnessing his charters.  Revealingly, only three earls were included, one of them being the justiciar and another the king’s half-brother - the high aristocracy was not associated by the chronicler with the circle around John.  Most of those named were administrators, though many had military experience, but ominously for the future, several were primarily soldiers, even if they performed administrative duties as well – Brian de Lisle, Philip Marc, Gerard d’Athée, Engelard de Cigogné. 

The character such men gave to John’s court is perhaps to be seen in the record drawn up on 27 May 1212 of guarantors of the future good conduct of Peter de Maulay, and of the penalties they agreed to incur should Peter offend again.53  There was no recorded council at this time, these were simply the king’s attendants.  As well as the two usual bishops, the company consisted of the justiciar, the king’s half-brother, the earls of Chester, Arundel and Oxford, three archdeacons, all of them apparatchiks, and then a number of courtiers and government agents, headed by the well-nigh omnipresent William Brewer.  Of the twenty-six men involved, twelve were named as `evil counsellors’ by Wendover, along with Maulay himself.  In a few cases, the forfeits were specified; the bishop of Winchester was to give twenty palfreys, with saddle-cloths and bridle-reins, if Peter relapsed, and the earl of Salisbury promised to give the king all his hawks, while Henry FitzCount undertook to take a beating, should John so wish – perut vobis placuerit teneor verberari.  It was from such men, in an atmosphere of outdoor sports and rough humour, itself no doubt intensified by a growing military presence (Engelard de Cigogné and Brian de Lisle were among Maulay’s pledges) that John was now taking advice, and with others like them they remained at hand thereafter.  When John held a council of sorts at Wallingford on 1 November 1212 to treat with the northern barons,54 it was in the company of the bishop of Winchester, the justiciar, the earls of Salisbury, Warenne, Winchester and Derby (or Ferrers), William Brewer, Hugh de Neville, Richard Marsh, Peter FitzHerbert, Thomas of Erdington and Simon of Pattishall.55  Only the presence of Philip of Orby, the justice of Chester, struck an alien note, the others were all regularly in attendance on the king, and witnesses to his charters, and until the crisis at the very end of the reign they were consistent in their support for the king.

A number of councils were held in 1213 and 1214, mostly for negotiations over ecclesiastical affairs.  They present familiar problems of interpretation.  When John resigned his kingdom to the pope at Dover on 15 May 1213, he professed to be acting `of our own spontaneous good will and the common counsel of our barons’, but only eleven men witnessed his oath of fealty, and all of them (except the count of Boulogne) were the sort of men usually found with the king; the archbishop of Dublin, Henry of London, who headed the list, was an experienced royal servant who had hitherto attested frequently as archdeacon of Stafford - he had stood surety for Peter de Maulay under that title.56  There were almost certainly more men available who could have added their names to this important document.  Less than ten days later, on 24 May, an invitation to Stephen Langton to come to England was backed up by supporting letters from the archbishop of Dublin, the bishops of Winchester and Norwich, and twelve of `our barons’, who as well as the justiciar included five earls, the count of Boulogne, two northern lords (Gilbert FitzReinfred and Robert de Ros) and the marcher baron Roger Mortimer of Wigmore, along with William Brewer and Peter FitzHerbert (another committed royalist, and on Wendover’s list).57  All these men can be shown to have been in John’s company at this time, as the king moved round Kent, and others too, for instance the earls of Hertford and Hereford,58 but he chose not to advertise the fact when coming to terms with the papacy.  Perhaps the speciousness of his claim to have baronial support was so blatant that John felt unable to risk having it exposed as a deception by men he invited to attest it.

A further council, described by Wendover as attended by bishops and magnates and lasting for three days, was held in London at Michaelmas 1213, primarily to discuss compensation for the church for its losses during the interdict.59  It was presumably in connection with this assembly that on 3 October John issued a renewal of his homage to the pope, again stressing his own spontaneous wish and the common consent of the barons.60  Archbishop Langton attested first, and was followed by four bishops, three of whom (London, Ely and Lincoln) had only recently returned to England with him from exile.  Geoffrey FitzPeter was kept away by sickness – he died on 2 October – but the other witnesses made up what can only be described as a familiar company of loyal earls and more than loyal government agents, with Brian de Lisle ending the list and Richard Marsh authorising the document.  If there were more people there whose seals could have added visible weight to the transaction, John again preferred not to let this be known.

Royal persistence and baronial resistance

It is possible that John had not given much notice of the Michaelmas assembly.  It would seem that around the time it broke up he decided that a council should be held at Oxford.  He sent orders for the repair of his houses there on 5 October,61 and if summonses were sent out at the same time, then an assembly which was scheduled for 15 November would have had almost exactly the forty days’ notice demanded by the barons in 1215.   But John may then have got word that the magnates were setting out in a truculent, even belligerent, mood, for on 7 November he issued further orders which must have thrown everything into confusion, instructing the sheriffs to see that the knights summoned for the 15th came with their weapons, but that the barons came unarmed, while four discreet knights of each county were to attend ready to discuss the affairs of the realm.62  How these last were to be distinguished from the knights who in many cases must already have been on their way, and how the barons were to be disarmed, and by whom, John did not explain, and his mandate has a decidedly confused appearance, as indeed does his itinerary ahead of the council.  Having reached Wallingford on 3 November, and Woodstock on the 4th, he then went back to Witney before heading east to Brill (from where he ordered that supplies which included 5000 herrings should be sent to Oxford against his arrival there, presumably in acknowledgement that the 15th was a Friday), and then north to Finmere, west of Buckingham, and on to Silverstone, in Northamptonshire, before turning south again for Oxford.63  What was discussed when he arrived there, and by whom, there is no way of telling, though the fact that John was accompanied by the papal legate Nicholas of Tusculum (otherwise only William Brewer is recorded as being with him) suggests that church business was on the agenda, and perhaps that the council was intended to be a continuation of the one recently held in London.  Difficulties over attendance – of the king’s own making – may have meant that John found few magnates and knights to talk to, explaining why the council’s business was apparently soon dispatched.  John is recorded at Oxford on the 16th and 17th, but by the 18th he had left again for Woodstock.

All the evidence suggests that John did not much like, or want, the company of most of his barons, and except perhaps at Northampton in 1205 (when the results were hardly encouraging) did not try to win them over or to soften their grievances by mixing with them.  (In this he was very unlike Henry III, who seems to have believed that there was no problem which could not be solved, or at least made to look capable of solution, by throwing a good party at it.)  At the end of 1213, according to Wendover, John spent Christmas at Windsor, where he bestowed many festive robes (indumenta) on his magnates.64  The robes may have been numerous (although there is no surviving record of their being purchased, when fish, venison and probably wine were being laid on),65 but not so, apparently, the magnates.  The king’s stay at Windsor was brief – he was at the Tower of London on 23 December, and at Windsor on the 25th, but he was back at the Tower on the 28th and 29th, and then at Waltham until the New Year.66  Present with him were Brian de Lisle and Henry of Braybrooke, and also Arnulph of Auckland, an important royal clerk,67 but there is no sign of any baronial attendance.  At the following year’s better recorded (though no more extended) Christmas, John is recorded as having been accompanied at Worcester by three bishops (one of them Peter des Roches, who was now justiciar) and three earls, including William Marshal, and also by William Brewer, Hugh de Neville, Peter FitzHerbert, Robert de Ros and Richard Marsh, the chancellor.68  No doubt there were others present on each occasion, but the fact that they have left no trace in the records hardly suggests that they were made to feel welcome among the king’s habitual associates.  During the year in between, John spent several months campaigning in Poitou, and there, too, his charters suggest a strong preference for the company of his familiares, even though a number of his potential opponents were serving in his host, giving him an opportunity to draw them into his retinue.  A few of the latter did attest during this time – William of Huntingfield, William Malet, Richard de Muntfichet, Maurice de Gant and Thomas of Moulton did so, along with Simon of Kyme’s son – but the predominant impression given by John’s Poitevin charters is that of an entourage which over an extended period was constituted largely as it had been in England.69

John returned to England in mid-October 1214, and just over a month later, between 17 and 23 November, was present in London at extended negotiations which were largely devoted to ecclesiastical affairs, but which took place in an atmosphere of growing political tension.70  The most important achievement of this assembly, the grant of freedom of election to churches, which was almost conventionally issued on 21 November `with the common consent of our barons’.71  The claim was somewhat more realistic than its predecessors, for although the justiciar Peter des Roches was the only bishop to witness the grant (the fact that it was made in the form of an agreement between the king and Archbishop Langton and five other bishops doubtless prevented the latter from subscribing it), six earls followed him, together with Robert de Vere, who claimed the earldom of Oxford.  But nearly all the rest of the attestors were the usual household men, headed by William Brewer, Warin FitzGerold and William de Cantilupe, and although three actual or potential malcontents and rebels, Robert FitzWalter (who had been outlawed on the king’s orders two years earlier), Geoffrey de Mandeville and Richard de Muntfichet were present next day, when John confirmed to Langton the patronage of the see of Rochester, they can hardly be said to have outnumbered the loyalists there.

FitzWalter and his companions were back in London in mid-January 1215, for negotiations with the king – a safe-conduct was issued on the 14th, and they were in the king’s company next day.  John stayed either at the New Temple or in Guildford between the 9th and the 21st, making this gathering perhaps the longest of the reign apart from the one which produced Magna Carta itself.  Despite being held in an atmosphere of considerable tension, one heightened by the presence of many armed men, which may well have deterred some of the magnates (and especially John’s opponents) from attending, the assembly was probably larger than the previous November’s.  More bishops were there – two of them, Coventry and Chichester, came as bishops-elect, showing that sees were now being filled after the lifting of the interdict – and at least three abbots were present, those of Westminster, Ramsey and Beaulieu.  Not all the king’s adversaries were intimidated into staying away, for among those in attendance during this period were Thomas of Moulton, Simon of Kyme and William d’Aubigny.72  But the earl of Winchester and Robert de Ros, who later rebelled, were probably still regarded as loyal to the king at this time, and overall the strongest impression given by the witness lists is yet again the predominance of prelates, earls and government agents who had long shown themselves to be consistently loyal to the king. 

Probably for that reason, among others, nothing came of the meetings of January 1215, but it is quite possible that baronial recollections of them, as much as memories of the imposition of levies like the thirteenth of 1207, contributed to the precision of Clause 14 of Magna Carta.  It has been suggested that the clause represented a clever ploy on John’s behalf, who could hope to control discussions through his own servants, most of whom were tenants-in-chief, and perhaps to create, or at any rate exploit, divisions between the magnates and lesser men.73  But it seems more likely to have been devised as a restatement of what had been conventional practice, intended to ensure by sheer force of numbers that when the barons were united in their dealings with the king, they could not be overridden, slighted or ignored in favour of men like Peter des Roches, Richard Marsh and William Brewer.

Their intimate association with John’s methods may explain why some of the curiales were not with the king at Runnymede – it is easy to imagine that he would have liked to have Marsh and Brewer, in particular, at his side, but perhaps they were so closely associated with his particular style of kingship that their presence could have seemed provocative.  Or perhaps Brewer, who in 1223 spoke out against a re-issue of Magna Carta on the grounds that it had been originally issued under duress,74 disapproved so strongly of the way things were going in 1215 that he dissociated himself from the negotiations leading up to the treaty between the king and his adversaries – he last attested on 9 May, though he did not desert the king, who appointed him one of the overseers of his testament.75  Of the other `evil counsellors’, some were dead by this time, and several (for instance Robert de Vieuxpont, Hugh de Balliol, Brian de Lisle and Philip Marc) would have been active on John’s behalf away from London, while a few, then or shortly afterwards, were to be found in the ranks of the king’s enemies.  Only four of them – Peter des Roches, Peter FitzHerbert, Hugh de Neville and Thomas Basset – stood alongside John on 15 June 1215, together with a number of bishops, the papal legate, the usual four earls, and other courtiers and minders of the machine of government (who often amounted to the same thing).

Behind its technicalities, Clause 14 was a considered indictment of John’s manner of ruling, of the irregularity of its processes, the fluctuations in its personnel, and its restless and aggressive character.  Though it was nominally directed towards grants of taxation, it seems inconceivable that those were all the barons were concerned with in 1215, they would have had all the important activities of government in mind, as they attempted to bring predictability and routine into them.  The Charter made no attempt to dictate the composition of his entourage to the king – the clauses that come nearest to this, 45 and 50, confined themselves to excluding foreigners from office – what mattered was that he should not take decisions affecting the magnates and their followers without consulting them, in circumstances which allowed for their considered involvement and in numbers which would have prevented their intimidation by the king’s supporters.  It is very likely that many more important men had been present than are named in the records when measures like the thirteenth of 1207 were enacted, but the consistency with which the records name few besides the king’s intimates when councils were held , even when there were magnates present whose attendance could reasonably have been registered, is surely in itself a pointer to the king’s attitude towards the latter.  The mere presence of earls and barons would have meant little, moreover, if they had no chance to participate in proceedings which were rushed through without time being allowed for proper discussion.  In the last resort, Clause 14 was aimed at John himself, and at the febrile quality of a style of government which took its whole tone from him.  That it was dropped from later re-issues must have been largely because, like Clause 12, it set out conventions which were so widely accepted as reasonable that it became unnecessary to give them formal expression.  But it must also have been abandoned because the king whose entire modus operandi ran radically against those conventions was no longer there to reject them.

1

Discussed in the commentary on Clause 12.  It is noteworthy that unlike Clause 12, Clause 14 said nothing about the involvement of London in the councils it prescribed.

2

J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 428.

3

F.M. Stenton, The first century of English feudalism, 1066-1166 (2nd edn., Oxford, 1961), 95; J.E.A. Jolliffe, Angevin kingship (2nd edn., 1963), 166, 169-70

4

D.Crouch, William Marshal: knighthood, war and chivalty, 1147-1219 (2nd edn., 2002), 186-90.

5

J.R. Maddicott, The origins of the English parliament, 924-1327 (Oxford, 2010), 80-1.

6

Ib., 198-204.

7

C.R. Cheney, `Levies for the English clergy for the poor and for the king, 1203’, English Historical Review 96 (1981), 577-84, at 578-9.

8

As argued by S. Reynolds, Kingdoms and communities in western Europe, 900-1300 (Oxford, 1984), 306.

9

See Jolliffe, Angevin kingship, especially chapter VIII.

10

F. Michel (ed.), Histoire des Ducs de Normandie (Société de l’histoire de France, Paris, 1840), 127-30.

11

T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 125.

12

W. Stubbs (ed.), Chronica Rogeri de Houedene iv (Rolls Series, 1871), 152.

13

Rot.Chart., 45-8.

14

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 54

15

Details from ib., 49, and T.D. Hardy (ed.), Rotuli litterarum clausarum i: 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 18.

16

W. Stubbs (ed.), The historical works of Gervase of Canterbury ii (Rolls Series, 1880), 95-6.; Rot.Lit.Pat., 41., and ib., unpaginated `Itinerary of King John’; Rot.Chart., 123-4.

17

Rot.Chart., 125-8.

18

Curia Regis Rolls iii, 1203-1205 (1926), 124.

19

Rot.Lit.Pat., 43; Rot.Lit.Claus. i, 2.

20

Rot.Lit.Pat., 45.

21

Ib.; Rot.Lit.Claus.i, 7-8; Rot.Chart., 136-7.

22

T. Rymer (ed.), Foedera I:i (Record Commission, 1816), 91.

23

Rot.Chart, 136-7; Rot.Lit.Pat., 45; Rot.Lit.Claus.i, 6-7.

24

Histoire des Ducs de Normandie, 99-100.

25

J. Stevenson (ed.), Radulphi de Coggeshall Chronicon Anglicanum (Rolls Series, 1875), 107-8.

26

Rot.Chart., 80-1, 99.

27

A.J. Holden (ed.), History of William Marshal, trans. S. Gregory, historical notes by D. Crouch, 3 vols., Anglo-Norman Text Society, occasional publication series 4-6 (2002-6), ii, 180-5, iii, 216-19.

28

For John at Gloucester, see Jolliffe, Angevin kingship, 185-6.

29

The assembly is recorded by Gervase of Canterbury, ii, 96-8, the ordinance Rot.Lit.Pat., 55.

30

Rot.Chart., 145-6; Rot.Lit.Claus. i, 24-5; Rot.Lit.Pat., 51-2.

31

Rot.Lit.Pat., 52; Rot.Chart., 147.

32

Radulphi de Coggeshall Chronicon Anglicanum, 152; Rot.Lit.Claus. i, 29, 31, 33; PR 7 John (1205), 198.

33

W. Stubbs (ed.), Select charters, from the beginning to 1307 (9th edn., revised by H.W.C. Davis, Oxford, 1913), 277.

34

Gervase of Canterbury ii, 96-8.

35

Rot.Chart., 149.

36

S. Painter, The reign of King John (Baltimore, 1949), 56.

37

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835), 268.

38

Curia regis rolls iii, 337-47.

39

Details of attendance from Rot.Chart., 150-1; Rot.Lit.Claus. i, 33-4

40

Radulphi de Coggeshall Chronicon Anglicanum, 152.

41

H.R. Luard (ed.), Annales monastici ii (Rolls Series, 1865), 258-9.

42

Rot.Lit.Pat., 68.

43

Rot.Lit.Claus. i, 75-6 (there is no charter roll for this year).

44

Details from Rot.Lit.Claus. i, 77; Rot.Lit.Pat., 68.

45

Rot.Lit.Pat., 72-3.

46

Ib., 72.

47

S.K. Mitchell, Taxation in medieval England (Yale, 1951), 177-8.

48

Rot.Lit.Pat., 72.

49

Rot.Lit.Claus. i, 105.

50

Rot.Lit.Pat., 80.

51

Details of attendance and of the council’s likely business from Rot.Chart., 175-6; Rot.Lit.Claus. i, 105-7; Rot.Lit.Pat., 80.

52

H.G.Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum ii (Rolls Series, 1887), 59-60.  For a commentary, see N. Vincent, `King John’s evil counsellors (act. 1208-1214)’, Oxford Dictionary of National Biography online.

53

Rot.Chart., 191.

54

H.R. Luard (ed.), Annales monastici iii (Rolls Series, 1866), 40.

55

Rot.Chart., 188-9 – these men attested royal charters on 30 October and 3 November, there is no record of his entourage on 1 November itself.

56

Stubbs, Select charters, 279-81.

57

Rot.Lit.Pat., 98-9

58

Details of the king’s movements and retinue from Rot.Chart., 192-3; Rot.Lit.Claus. i, 133-4; Rot.Lit.Pat., 99.

59

Rogeri de Wendover ... flores historiarum ii, 94-5.

60

Rot.Chart., 195.

61

Rot.Lit.Claus. i, 156.

62

Stubbs, Select Charters, 282.

63

Details of movements and attendance from Rot.Lit.Claus. i, 139, 154-5.

64

Rogeri de Wendover ... flores historiarum ii, 97.

65

PR 16 John (1214), 2, 28, 124.  John is only known to have been at Windsor at Christmas during the financial year covered by this pipe roll.

66

Details from Rot.Lit.Pat., 106-7; Rot.Lit.Claus. i, 140.

67

Jolliffe, Angevin kingship, 271-2.

68

Rot.Chart., 205-6.

69

Ib., 196-201.

70

For the context see C.R. Cheney, Innocent III and England, Päpste und Papstum 9 (Stuttgart, 1976), 360-7.

71

Stubbs, Select Charters, 283-4.

72

Details from Rot.Chart., 202; Rot.Lit.Claus. i, 174-80.

73

Painter, Reign of King John, 320.

74

D.A. Carpenter, The minority of Henry III (1990), 296.

75

Rot.Chart., 207; Rymer, Foedera I:i, 144.


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Original Latin

XV

Nos non concedemus de cetero alicui quod capiat auxilium de liberis hominibus suis, nisi ad corpus suum redimendum, et ad faciendum primogenitum filium suum militem, et ad primogenitam filiam suam semel maritandam, at ad haec non fiat nisi rationabile auxilium.

15

We are not to grant in future that anyone may take an aid from his free men, except for the ransoming of his person, and the knighting of his first-born son, and the marrying, once, of his first-born daughter, and for these there is to be only a reasonable aid.


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Original Latin

XVI

Nullus distringatur ad faciendum majus servitium de feodo militis, nec de alio libero tenemento, quam inde debetur.

16

No person is to be distrained to do more service for a knight’s fee, or for another free tenement, than is owed for it.

Audio commentary

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Commentary for academic researchers

(a) Service and scutage

Clause 16 of Magna Carta comes at the end of a short sequence primarily concerned with the financial implications of the king’s relations with his tenants-in-chief.  Its equivalent among the Articles of the Barons, no. 7, was placed in a broadly similar context, but may have lost strength through other material (Articles 32, 34-5) covering related ground having been situated much later in the sequence.  The final ordering of clauses 12 to 16 of the Charter was logical in itself, and also arranged in such a way as to impose a cumulative restraint on some of King John’s money-raising techniques.  The Clause and the Article were by no means identical, however.  The latter’s simple prohibition on doing more service than was owed was rephrased and extended.  The Article could have been taken to imply, however improbably, that some idealists were voluntarily doing an excess of service and needed to be prevented from breaking ranks with their harder-headed associates.  Clause 16 made it clear that the forcible measures inherent in distraint had been applied to compel more service being done than was owed, and forbade this for the future.  And whereas the Article spoke only of the service owed for a knight’s fee, Clause 16 applied the prohibition to all free tenements, thereby implicitly excluding the unfree from its protection, against the demands of their lords or anyone else.

More positively, the extension of Clause 16 to cover all free tenements gave protection to those who held their lands in return for non-military services , and was indeed capable of being interpreted as also defending the free sub-tenants of tenants-in-chief against unwarranted demands by their lords.  How far this last possibility was intended is unclear.  Clause 15 had clearly been drafted with this purpose in mind, since it made exact provision for the circumstances in which a lord could take an aid from `his free men’, and envisaged this happening only with royal licence.  But Clause 16 was far more general in its application, as, indeed, were the clauses which followed it, and made no provision for its own enforcement (also unlike Clauses 12 and 14, which together established the administrative machinery for the imposition and assessment of scutage).  It was, moreover, to all outward appearances unnecessary for the protection of sub-tenants, who already possessed a means of self-defence against over-exigent lords, in the writ ne vexes, which in the words of the writ itself gave protection to a tenant against a lord `demanding, or allowing to be demanded, customs and services which he is not bound to do ...’.  The tenant-in-chief, by contrast, had no such recourse against the crown (this is discussed further below).  The original formulation of Article 7, speaking only of the service due from a knight’s fee, placed it in a sphere regulated by the relations between kings and tenants-in-chief, in which the military service owed by the latter to the former played a preeminent role.  Its extension in Clause 7 to cover all free tenements brought it into contact with a different world, where on the evidence of deeds and charters links between lords and men were usually defined in terms of landed units, of manors, tenements and rents, and services were far more often expressed in fiscal than military terms.  This widening of the clause’s scope certainly had the potential to benefit the sub-tenants who stood behind the barons and prelates who negotiated Magna Carta, but the latter were thinking primarily of their own interests when they drafted it.

Behind Clause 16 of Magna Carta there lay two principal issues, both of them essentially military: the king’s ability to require service overseas, and his right to commute services, wherever they were demanded, above all for financial payments in the form of scutage.  The former did most to arouse overt opposition, and arguably did so at higher levels in society, but the latter is likely to have had the more widespread impact, and must, indeed, have done much to engender resentment against King John’s regime among knights, gentry and other lesser freeholders.  The inter-relationship of these two bones of contention is shown by their being dealt with in consecutive clauses (7 and 8) of the `Unknown Charter’, seemingly a product of discussions and negotiations in the early months of 1215.  In clause 7 King John was envisioned as conceding that `Moreover I grant to my men that they shall not go in an army outside England except to Normandy and Brittany, and this only as is appropriate (decenter), so that if anyone owes me the service of ten knights this will be scaled down by the counsel of my barons’.  And in the next clause that `If scutage occurs in my land, one silver mark is to be taken from a knight’s fee, and if a military emergency (gravamen exercitus) arises, more might be taken by the counsel of the barons of the kingdom’.1

The precision of these demands, and in the case of clause 8 the completely unrealistic limitation on the rate at which scutage might be levied, when taken together with the attempts they embodied to impose controls on rights which John and all previous kings had been accustomed to exercise without dispute, was such as to make them unacceptable to the king, at any rate in that form.  There are certainly no exact parallels to them either among the Articles of the Barons or in Magna Carta, but the latter ultimately contained three clauses covering the relevant ground.  Clauses 12 and 14 named scutage as a levy which was only to be imposed with `the common counsel of the kingdom’, while Clause 16 was presumably intended in the first instance to be directed at overseas service (servicium was, after all, its focal point), though its relevance to scutage as well probably made it no less acceptable, as underlining the resistance provoked by this contentious issue.  (It may also have been appreciated in some circles that the sleight of hand which linked scutages with aids in Clauses 12 and 14 might prove hard to sustain, and that these clauses would eventually have to be abandoned, as indeed they were.)   The rather indefinite language of Clause 16, when compared with the exactness of the `Unknown Charter’, has been perceived as a `something of a royal victory’.2   It is probably truer to say that it reflected the sheer difficulty of restricting royal rights over the raising and deployment of armies which were both wide-ranging and long-established.  The barons focused their attention on John’s exploitation of his position as feudal overlord.  But that position was too closely bound up with the sovereignty which made him ultimately responsible for the defence of the kingdom to be readily separated from it – it was hardly possible to restrict the one without damaging the other.  Clause 16 registered a protest, legitimized objection and even resistance, and, thanks to its very lack of specificity, raised the possibility of future extension.

(b) The development of commutation

Successive kings needed military services from their subjects, and could receive them directly – those who owed knight service to the king as the basic condition on which they held their lands could turn out for campaigns to which the king summoned them – or indirectly, through the commutation of service for cash, or, occasionally, for other forms of service, as in 1165, when the tenants-in-chief were persuaded to finance troops of serjeants, well-armed infantry, for an expedition to Wales.3  Scutage, the name given to financial commutation, was so called from scutum, a shield, and was assessed on the number of knights whose service a tenant-in-chief owed.  It was as much an obligation as military service, and the decision as to the form in which service was performed, military or financial, rested entirely with the king, who could demand a baron’s physical presence on a campaign, or indicate that he would rather have the money which would enable him to hire mercenaries instead. 

An English king usually wanted to have at least some of his leading subjects with him when he went on campaign abroad.  Their presence had a moral as well as a military value, in showing that his subjects regarded his cause as just, and were prepared to join him in fighting for it.4  But since custom usually limited feudal service to forty days (the adjective `feudal’ is controversial, but no concise substitute has been found which adequately conveys the conditional tenures and mutual obligations implicit in it), rulers with extensive overseas commitments, and a constant need to defend them, often preferred to have the money.  They did so the more readily because English knights seem to have been regarded as of inferior quality, partly, at least, because Henry II forbade them to improve their skills by taking part in tournaments.  When that king organised a major expedition to the south of France in 1159, he preferred to hire soldiers, and took a scutage throughout his lands to pay for them, rather than to call upon the services of `country knights and a multitude of burgesses and rustics ...’ (though he did also require his leading barons to accompany him, perhaps in order to show that he had their backing).5  The immediate purpose of the inquests into knight service in 1166 which produced the Cartae Baronum, lists submitted by tenants-in-chief naming all their sub-tenants who held their lands (fiefs, or fees) by military service, along with the knights of their households (super dominium), was most likely the levying of an aid to finance the marriage two years later of Henry II’s daughter Matilda to the duke of Saxony, which was assessed on the number of knights’ fees held from the crown.6  But it also provided the king with information which could be used to extend the imposition of scutage levies, by making it possible to take scutage not just for every knight whose service a tenant-in-chief owed, but also for every knight to whom the latter had granted lands or had at his command. 

Efforts were certainly made to exploit the Cartae in this way, with a measure of success – it has been estimated that the number of fees which paid scutage rose by just over 1200, and could have been higher had the king insisted on it.7  But they also encountered resistance – when Henry II took a scutage in 1172 for his expedition to Ireland, for instance, both the bishop of Worcester and the abbot of Peterborough distinguished between the scutage of knights which they acknowledged owing the king, and which they paid, and smaller sums which they did not admit to owing, and which they did not pay.8  Where a higher rate was successfully demanded, it was often from the tenants of vacant bishoprics and escheated honours, which the king could now exploit in the same way that otherwise only their lords, when they had them, were able to do - this is discussed further below.  Thus in 1187 scutages based upon both the old and the new enfeoffment (the distinction, made in 1166, was between fees in existence in 1135 and those created afterwards) were imposed on the knights of William de Vesci, who was lord of Alnwick, and of the earl of Chester, with a note in each case: `because the honour is in the king’s hand’.9  A number of other demands for additional payments, derived from the Cartae, remained on the pipe rolls for years, until they were finally abandoned as hopeless.  But the fact that more could in theory be demanded for scutage than was usually paid was not forgotten, and might be acted upon.

Henry II levied only seven scutages in the course of his reign, and usually preferred to raise the money he needed in other ways.  Sometimes, indeed, he chose to call out the entire feudal host – in the crisis of the very end of Henry’s reign the justiciar, acting in the king’s name, summoned all the knights of England for service overseas, `even though feeble and poor’10 – but this was the unusual response to an exceptional emergency.  Where men were summoned, it was commonly just a proportion of them, as in 1157, when only a third of the available manpower was called upon to fight in Wales, and this trend continued under Richard I, who also called out just a third of the feudal host in 1194, and when he issued a general summons in 1196 instructed the barons (among whom those with Norman interests were expected to be prominent) to bring only small contingents of knights with them, though he expected to require their services for a long period.11  Quality, not quantity, of service, and the provision of troops able to take part in extended campaigns, were what was needed, as Richard made clear in 1197, when he tried to raise the money needed to enable him to keep a force of 300 knights in the field for a whole year – the abbot of Bury St Edmunds paid £100 to cover the cost of the four knights he was required contribute during that time.  He actually owed forty knights, but the king had limited his demand to the service of one knight in ten.12

The abbot was not required to fight in person, but in common with all other tenants-in-chief, he still had either to find the men, or if scutage was demanded, pay the money that was required.  If the latter, the tenant-in-chief could secure a writ de scutagio habendo which entitled him to recover his outlay, if need be with the assistance of the sheriff, from his tenants - he did not have to bear the cost from his own resources.13  Indeed, he could even make a profit, if he had enfeoffed more than the service officially required of him, by taking the scutage from all his knights, and not just the number required to meet the king’s demand.  Bury St Edmunds owed forty knights, but the abbey lands supported fifty-two, and in around 1194 Abbot Samson enforced his right to take scutage from all of them, so that if £40 had been demanded, he would actually have received £52, leaving him £12 better off.14

The way that scutage came to be pushed down the social ladder can be seen in a number of lawsuits, several of them related to fines recording agreements for its payment.  In some cases these were made between tenants-in-chief and their sub-tenants.  Richard de Sifrewast, for instance, was holding the Buckinghamshire manor of Chesham Bury directly from the crown when in 1207 he sued Robert de Pinkenni for the scutage he said was due to him from £4 of land there (Robert was his brother-in-law, and the action probably originated in a dispute over dower).15  But William de Paris was the sub-tenant of the barony of Cogges, held by the Arsic family, and thus a rung lower on the feudal ladder, when he prosecuted his tenant, Adam the butler, for arrears of scutage totalling 7s. 8d. in 1206.16  In neither case did the plaintiff specify the proportion of the demand thus passed on, but other actions show that it could be calculated with precision.  Thus a fine made in 1201 between William de Hauville and Ralph of Grantham over land at Helhoughton, Norfolk, settled that Ralph would hold the estate from William for 40s. per annum and 2s. towards every scutage of 20s.17  At about the same time the earl of Norfolk made provision for fluctuating rates of scutage when he granted six acres of land at Heveningham, Suffolk, to Hervey the baker, on conditions which included the contribution of 1d. towards the king’s scutage when it was levied at 20s., `and more, at a higher rate, and less, at a lower one’.18 

In a world dominated by earls Hervey was probably a very humble figure, but he must at least have been personally free.  That those who were not might still feel the impact of a royal demand for scutage is shown by a record from 1196, in which the villeins of `Wicke’, Northamptonshire, having complained (presumably in vain) to Archbishop Hubert Walter, acknowledged obligations to their lords which included scutage, `payable this time at 20s. and on other occasions as they can settle (finire)’.19  The burden of taxation could not have been forced down any further.  His ability to pass that burden down does not, however, mean that the tenant-in-chief could therefore hope to escape scot-free.  Money which disappeared into the exchequer or the king’s chamber had ceased to be available to the baron who wished to take an aid or otherwise exploit his authority over his vassals, and in any case lords were probably expected to protect their sub-tenants against government exactions, and risked losing social esteem, and perhaps also tenants, if they failed to do so.  Both tenants-in-chief and their sub-tenants had an interest in bringing the imposition of scutage under control.

This was no less true of another device whereby the king exploited his right to military service.  Perhaps because it was understood that scutage represented a way for lords to tap the resources of their tenants, thereby making it clear that there were reservoirs of wealth which the king was failing to exploit, there developed the practice of taking fines for remission of service, instead of, or as well as, scutage, and often at high rates.  Such fines appear to have been taken on two principal grounds.20  They could represent lords’ personal scutages, within which were understood the right to scutages from the knights of their households (the equivalent of the demesne knights of the 1166 inquests, which here too were presumably still being used for purposes of assessment).  And they could also be more straightforwardly understood as the payments made by lords for release from military service for themselves and their sub-tenants, together with the right to collect scutage from the latter; hence, for instance, the proffer of forty marks and a palfrey (in effect another five marks) which William of Mountchesney made for licence to remain at home in 1201, and which was recorded alongside instructions to the sheriffs of three counties to cause him to have the scutage of his knights.21  But whatever the grounds on which such fines were demanded and paid, of their impact there can be no doubt.  They probably began to be taken under Richard I, but became much more frequent and heavier under King John, and together with scutages constituted a heavy and growing burden. 

(c) Widening liability

Four scutages were taken during Richard’s reign, but eleven during that of John, starting in its very first year.  They became increasingly oppressive, for their regularity, because they were charged at higher rates than before (a reflection of the increasing cost of warfare, in an age of monetary inflation), and because they were demanded of people who had not previously been regarded as liable to pay.  This can be seen in 1201, when the ostensible rate was two marks (26s. 8d.) per fee, but many payments were considerably higher.  Thus in Lincolnshire Simon de Canci paid twenty marks (£13. 6s. 8d.) for the fees of five knights, and in Somerset his holding a single fee of the honour of Dunster cost Walter Dunheued five marks (£3. 6s. 8d.), while in Yorkshire Sibyl de Fiesnes had to pay twenty marks for just two knights’ fees.22  In all these cases the scutage, however extortionately, was charged upon lands held in return for military service.  But a large number of payments were also exacted from men and women whose lands were held on different terms, and who might therefore have expected to remain exempt.  In the north of England a number of men held by cornage, an ancient due which required military service only on the borders in the event of war with Scotland, and otherwise required no more than the payment of modest sums of money, probably in commutation of a render which had formerly been paid in cows.  And throughout England men and women held their lands by serjeanty, in return for a wide variety of services which in a few cases were essentially military, but much more often entailed the performance of duties about the royal court and tasks necessary for the management of the king’s forests.

Fines made in 1201 for not being obliged to serve overseas included examples of both kinds of tenure, and show that for the cornage tenants the sums involved could be substantial.  Simon de Tilliol and Adam son of Adam, both of whom held estates in Cumberland by cornage, and Alan son of Benedict, who did the same in Westmorland, paid £5 apiece to be permitted to stay at home.23  Nicholas de Stuteville, a great landowner in Yorkshire and Cumberland, held the lordship of Liddel Strength in the latter county by cornage; he, too, gave £5 instead of serving overseas, but still sent his son to do knight service.24  Serjeanty tenants paid less, perhaps in acknowledgement that their tenures lacked the social cachet associated with knighthood.  Perhaps some of them could reasonably have been summoned to serve in the king’s army, men like Samson of Molesey from Surrey, who was expected to attend that army with a crossbow, or Geoffrey of Poorton from Hamsphire, who was required to provide a serjeant with a hauberk for forty days.25  But it is hard to see what useful service could have been required of Adam the Saucerer, who held Little Salkeld in Cumberland by the service of acting as the queen’s cook, from Geoffrey de Luveretz and Walter Esturmy, who held hunting serjeanties in Wiltshire, or from Simon Ponzard, who held property in Berkshire by the service of turning a spit in the king’s kitchen.26  In fact it is most unlikely that John wanted the physical presence of such men in his army, but he needed their money, and to obtain it he probably let it be known that offers of appropriate payments would ensure that they were not summoned to cross the Channel to Normandy - sums ranging from 6s. 8d. to 20s. were found acceptable.

Raising money in this way, in defiance of all precedent, because scutage had hitherto been narrowly restricted to those who held by military service, was never likely to be popular, and may in fact have prompted dissent, which may indeed have focused on both the main grounds around which opposition to John’s demands for service crystalised later in his reign.  Roger of Howden, in writing about the events of 1201, recorded that immediately after Easter [25 March] John ordered the earls and barons to assemble at Portsmouth at Pentecost [13 May] for an expedition to Normandy, but that the barons had first gathered at Leicester, and after some discussion had told the king that they would not accompany him `unless he restored their rights to them (nisi ille reddiderit eis jura sua)’.27  The chronicler did not record what those `rights’ were, but that they were significant ones is suggested by the forcefulness of John’s response - he demanded that the barons surrender their castles to him, and since the troops he was gathering gave him the advantage of military superiority, they complied.  The baronial dissent may well have included reservations about service overseas, which were not in fact new.  In 1197 such service had been refused by the bishops of Lincoln and Salisbury, who claimed that they did not owe it,28 and the knights of St Edmunds made the same objection, though they admitted to having sometimes paid scutage instead.29  And the barons may also have been objecting to John’s perceived misuse of the feudal summons as a means of collecting money, especially in the case of northerners like Nicholas de Stuteville, who held lands by both military and cornage tenure.

In 1201 John was still able to enforce his demands, and for the time being fines and scutage continued to be taken, with intermittent attempts to extend the impact of the latter by the reactivation of the higher assessments made possible by the inquiries of 1166.  In 1201 the earl of Devon paid on forty-five fees which he did not acknowledge, as well as on fifteen which he did,30 and two years later William de Longchamp, the lord of Freiston, Lincolnshire, accounted for £30 `of the old enfeoffment’ and £6 `of the new enfeoffment’, having seemingly accepted his liability for a full £36.31  The following year’s scutage was charged at the hitherto unprecedented rate of two and a half marks (33s. 8d.) per fee, but was often taken at one which was even higher.  Walter de Bolebec, who held the Northumberland barony of Styford by the service of five knights, had to pay no less than £40, or £8 per fee, and Nicholas of Morwick, a landowner in the same county, paid £10 for a single fee.32  The abbot of Crowland, Lincolnshire, was charged with £20, even though he owed no knight service at all, and the abbot of Ramsey, Huntingdonshire, with £100 for four knights’ fees, while Richard son of Warner, a very small landowner in Huntingdonshire, who had only a quarter of one fee, still had to pay £2 for it, 6s. 8d. more than the nominal rate for a whole fee.33  John had showed himself determined to end the traditional independence of the great northern lords.  The fines he raised in 1204 provoked resistance, and by the end of the year had helped to bring the north of England to the verge of open revolt, though this was averted by timely concessions to the region’s leaders, especially the earl of Chester.34  It was usually the lesser tenant-in-chief who were hardest hit by demands for scutage, and this probably remained the case throughout John’s reign.35

(d) Military service at home and abroad

In 1204 John could have claimed to have legitimized his demands by securing the consent to them of a council held at Oxford at the beginning of the year.36  Similarly in March 1205 he seems to have held two councils in rapid succession, the first at London and the second at Oxford,37 which resulted in letters being sent to all the sheriffs on 3 April, notifying them that it had been provided, with the assent of archbishops and bishops, earls and barons, that throughout England every nine knights were to fund and equip a tenth, thereby creating a force which was to assemble at London on 1 May, `prepared to go in our service where we shall order, and to be in our service for the defence of our kingdom in so far as the need arises.’38  Furthermore, `It has also been provided that if foreigners invade our land, all men are unanimously to gather in force and arms, without reservation and delay, once they have heard news of their approach’ – presumably a reference to the supplementary orders, recorded by Gervase of Canterbury, for the creation of a nationwide hierarchy of constables, who were to be ready to muster the nation’s adult manpower in the event of an invasion.  So great was the danger that in the mandate of 3 April John felt able to threaten those who ignored this second summons with lasting social degradation – knights and others landowners would forfeit their estates in perpetuity, while free men who did not possess lands, whether they were knights, serjeants or anyone else, would be reduced to the status of serfs.  Failure to pay scutage, or to obey a summons to the feudal host, might result in disseisin, but lands so taken could be recovered, at a price; the penalty for resisting the king’s command in 1205 thus threatened to be far more severe and to have lasting effects.

The order for the levying of a force of knights was ambiguous about its purpose, presumably deliberately – where it was to go, and how it was to defend king and kingdom, were both left unclear, This worked to John’s advantage, as he doubtless intended, but it also suggests that it might be difficult to define, and thus to limit, the amount of service which the king could demand from his subjects.  That he had the right, indeed the duty, to protect the well-being of his realm was beyond dispute, and there is no evidence for protests against the national levy ordered in 1205.  But raising an army for service abroad was increasingly seen in a different and more suspicious light, and yet precedent was on John’s side, supported, perhaps, by the expectation that he would preserve his rights and his inheritance – undertaking to do so had probably formed part of his coronation oath.  Despite the protests of 1197, and perhaps 1201, it had seemingly come to be generally accepted that the king of the Anglo-Norman regnum created by the events of 1066 had the right to demand military service in Normandy itself and in the regions adjacent to the duchy, and as late as the early part of 1215 the barons themselves, or some of them, were prepared to acknowledge that this was so, when in the `Unknown Charter’ they attempted to confine overseas service to Normandy and Brittany.  Their objection, in fact, was primarily to being called upon to fight in and for the lands on and south of the Loire which had come to Henry II by inheritance from his father and by marriage.

In 1159 Henry had been able to raise men and money in England, apparently without meeting resistance, for an expedition to Toulouse.  By the early thirteenth century, however, feelings were changing.  In fact there was no overt opposition to the summons of 1205, but the measures of that year seem to have been agreed upon in an atmosphere of mutual mistrust.  According to Gervase, the magnates forced the king (compulsus est) to swear that he would preserve uninjured `the rights of the kingdom of England’, while the earls and barons took an oath to perform due service to John, and oaths of fealty were sworn to him throughout the realm.  In the end it became apparent, though apparently only at yet another council, at Northampton in late May, that the army assembled at the beginning of the month was intended for a campaign in Poitou.  In fact nothing came of all these preparations.  There was no French invasion, but John was persuaded, very much against his will, not to risk leaving the country while it was under threat, whereupon he disbanded his troops and took `an infinite amount of money’ from his subjects, churchmen as well as lay barons and knights, on the grounds that they had been unwilling to accompany him in his expedition overseas to recover his lost inheritance.39  Presumably the money was that raised by a scutage of two marks per fee, which was also imposed during this year, and which together with fines could have raised over £10,000.40  King and barons alike probably ended the year with a strong sense of grievance. 

Meanwhile fines and scutages had continued to be paid by men who did not owe knight’s service.  The counties of Cumberland, where cornage tenure prevailed, and Wiltshire, which supported a large number of serjeanty tenures, illustrate the point.  In 1203 just three Cumberland landowners paid fines for military service, but the sheriff accounted for sums ranging from 6s. 8d. to twenty marks for cornage tenants, and a year later for two tenants by cornage, two by drengage and three by serjeanty.41  And in Wiltshire the former year saw men like Matthew Turpin, responsible for providing the king with claret, and William Esturmi, the keeper of Savernake forest, being similarly charged, as they were again in 1204, along with William de Anesi, the keeper of the royal larder, Ralph de Hairez, who looked after the king’s hunting dogs, and several others.42  Few such demands were made in either county in 1205, but in 1206 Richard de Lucy, the lord of Egremont in Cumberland, was assessed at forty marks `for one knight’s fee and for his serjeanty and for the land he holds by cornage’, and the seventh scutage of the reign also included charges upon four serjeanty tenants in Wiltshire.43  The same number, and two of the same men, were similarly assessed for the scutage of 1210, but at much higher rates - Matthew Turpin, who paid one mark in 1206, now had to find twenty marks.44  The cornage tenants of Cumberland were treated similarly; Adam of Kirklinton, who had been charged with ten marks in 1204, now had to give 100, of which he paid eighty within a year, and Adam son of Odard, whose father had paid five marks in 1203, had to find £40 and two good palfreys, the equivalent of an additional twenty marks, while Adam the Sauserer was charged with £10 for his serjeanty, compared with two marks in 1204.45

With increased pressure on non-military tenants went equally heavy demands on the sub-tenants of church lands, as from 1208 onwards these came increasingly under the king’s control.46  All but one of the bishops, and many heads of religious houses, had what were in effect secular baronies, owing the services of specified numbers of knights.  Particularly after 1209, when John’s excommunication caused nearly all the bishops to leave his court, scutages were no longer charged according to the number of knights nominally due from episcopal baronies, but on the actual numbers of enfeoffed knights.  When Abbot Samson was in dispute with the knights of Bury in 1198, it was said that the extra twelve knights used to `support’ the forty he owed, presumably by contributing to the latter’s scutage, which was thereby somewhat reduced in terms of individual payments.  Samson was able to demand scutage from all his knights, and the king now did the same.  Thus in 1211 scutage on the see of Lincoln was demanded from about 104 fees, instead of the sixty previously owed, while the archbishoprics of Canterbury, which owed sixty knights, and York, owing twenty, were now required to pay scutage for nearly eighty-five and around forty-three respectively.47 

When fines were made for exemption from service, they could be no less heavy, and were probably assessed in the same way.  The knights of the bishopric of Chichester had to find £34 6s. 8d. for the Irish expedition of 1210.  Their scutage for the Poitou campaign four years later, which amounted to £19. 5s., was assessed on four fees, which the bishop acknowledged, and a fraction over five and a half, which he did not.48  The disparity in figures suggests that in 1210 all the knights, whether of the old or new enfeoffment, were required to pay, at a rate of about £3. 10s. apiece, considerably more than the £2 demanded by way of scutage in 1214, even though that year’s rate was the highest of the reign.  In 1166 the abbot of Ramsey Abbey had reported that a total of twenty-two men held land from his house, and acted in common to perform the service of four knights.49  In 1210, when the monastery was in the king’s hand, the fines of `the knights and free men’ amounted to no less than £172. 6s. 8d.,50 suggesting strongly that the assessment was based on the number of tenants contributing to the abbey’s military service, rather than on the actual service owed.  If there were still twenty-two tenants involved, then they would have paid about £8 each, but probably there were more by this time, lowering the individual rate.  But in all likelihood the fine reflected the resources of the monastery, and of its free tenantry, rather than the exact numbers of the latter, and the same seems likely to be true of the diocese of Durham, where the knights and free tenants fined for their non-attendance in Ireland by an astonishing £1519. 10s.51  In 1166 the bishop had acknowledged ten knights as enfeoffed before 1135, and about sixty more since then.52  Had seventy men been assessed for scutage in 1210, the yield would have been just £93. 6s. 8d., less than a fifteenth of what was demanded, while raising over £1500 would have required the knights to pay nearly £22 each; the figure is improbably high, and it seems certain that many others were called upon to contribute, as, indeed, the reference to free tenants implies was the case.  When assessed in terms of their commuted value, the king’s demands not only repeatedly amounted to far more service than he was owed, but also affected far more people than ever before.

(e) Ambiguities

Yet paradoxically, at the same time as the rate of commutation was being relentlessly pushed up, baronial resistance and the particularities of royal needs were combining to cause the king’s demands for actual military service to fall sharply.  For the 1210 Irish campaign the justiciar, Geoffrey FitzPeter, provided only ten knights, rather than the 98⅓ due from him, and the earl of Warenne’s contingent numbered just eight, instead of sixty.  The midlands baron Robert Marmion, who may not have been present himself, was allowed to send three knights, instead of twenty-five.  This was not favouritism.  Marmion was on bad terms with the king, as was the Lincolnshire baron Gilbert de Gant, whose contingent numbered six rather than 68⅓, and both men rebelled at the end of the reign.53  Rather it was increasingly accepted that barons should only be required to participate in campaigns by providing forces in keeping with their eminence, thereby demonstrating their loyalty, and perhaps also providing leadership.54  The Irish expedition lasted for about eighty days, twice as long as the conventional period of feudal service.  To maintain an extended campaign John, like his brother before him, required the money which would enable him to hire professional soldiers and retain their services for as long as he needed them.  As a result, even when less service was demanded than was owed, the price of the commutation of the rest could be very high.  In 1166 the abbot of Evesham reported a total of five knights’ fees, his near-neighbour the abbot of Pershore only two.55  In 1210 both abbots were allowed to fine instead of sending knights, one from Pershore and two from Evesham, but the sums involved were large – 100 marks and two palfreys from Pershore, double that amount from Evesham.56  Such was the king’s need for cash, that when Roger Bigod, earl of Norfolk, proffered 2000 marks in 1211 for having the amount of service he owed - his servicium debitum - cut during his lifetime from 120 to sixty knights, along with a suspension of demands for arrears of scutage, the king was probably only too happy to accept, the more so because most of the money was soon paid.57 

Although there were occasions when John did require military service (in 1209, for instance, the knights of Canterbury Cathedral paid no scutage because they took part in that year’s Scottish campaign),58 it is probably true to say that on most occasions he saw it primarily in terms of its financial value, and that in doing so he pressed the demands he made on his subjects far beyond what either convention or agreed terms of service allowed.  When opportunity arose, he certainly made far more out of failure to do service than commutation would have done.  Scutage for the 1209 Scottish expedition was fixed at 20s. per fee.  The abbot of Muchelney in Somerset owed one knight’s service and was summoned to provide it, but the two tenants who held their land from the abbot on condition that when called upon they would produce the knight, together with his arms and everything he needed for his maintenance, failed to do so, with the result that the abbot, because he had neither come himself nor supplied the service due from him, was amerced of no less than 100 marks, more than sixty times a single fee’s scutage.  The abbot then sued the principal culprit, Christian of Wick, in the court coram rege.  She admitted being at fault and put herself in the mercy both of the abbot and the king, which ultimately enriched the latter by another 6s. 8d., but brought no benefit to the former, who by Michaelmas 1210 had paid his debt in full.59  

The abbot’s punishment certainly seems out of all proportion to the dereliction of duty which gave rise to it.  Yet it is impossible to be dogmatic on the point, since the king was indisputably entitled to insist upon his rights.  At every point ambiguities and uncertainties persisted.  The precise purpose of the searching inquests which John launched in June 1212 into tenures by knight service and serjeanty, and into the alienations and grants which had reduced the capacity of their holders to perform the services they owed, is unclear – the survey was never completed, and no action followed it.60  There can be no doubt that one of its principal aims was the recovery of lost revenues, probably to be followed by demands for lost arrears, and then by future levies imposed at higher rates.  Yet the king could reasonably have claimed that he was only ensuring that he received the service due to him, and that there was no good reason why he should have been expected to tolerate encroachments on his demesne, or to see revenues from an estate disappear from sight when its holder became a monk, or to accept that because nobody knew what services were due from a fief therefore none were.  Many of the properties of which details were recorded by the 1212 survey were small, but not all were.  A whole fee in the Worcestershire manor of Clifton-on-Teme, which had been a distant outlier of the honour of Wallingford until the 1170s, had somehow slipped out of the control of the latter’s keepers, and thus become of no value to the king.61  After the forfeiture of William de Briouze in 1208 John himself had entrusted half the barony of Barnstaple, with no fewer than fifteen fees, to Peter FitzHerbert, `but it is not known by what service’.62  Perhaps the need to catch up with the consequences of his own intermittent generosity, as well as with alienations, usurpations and oversights, was one of the motives for the 1212 survey. 

In attending to such details, John was arguably doing no more than his duty as king, and the same was true in March 1213 when he again arranged for a mass call-to-arms in the face of a threatened French invasion.  This had much in common with the summons of 1205, in that the sheriffs were commanded to summon all the king’s free subjects, of all ranks, to be at Dover on 21 April, `well prepared with horses and weapons’, ready to defend `our head, and their own heads, and the land of England’.  Once more those who failed to attend were threatened with social degradation – they would be called `churl’ thereafter, and condemned to perpetual servitude.63  There was no mention of the unfree, but it would appear that some, at least, attended, perhaps mobilised by their constables, for after large forces had been assembled at strategic points on and near the coast, victuals began to run short, whereupon the army chiefs sent home what was described as `a great crowd of unarmed commoners (ex inermi vulgo)’, retaining only knights, serjeants and free men, along with crossbowmen and archers.  Wendover’s estimate that 60,000 men remained at their posts was certainly an exaggeration, but the force must have been a sizeable one.

The destruction of the French fleet on 30 May ended the invasion threat.  The king’s summons to the defence of the kingdom would appear to have been very widely obeyed, however, showing that in 1213, as eight years earlier, this was a form of service which John could command without resistance.  Campaigns overseas remained another matter, but here John showed his ingenuity, both in devising ways of exploiting his resources and also, perhaps, in side-stepping his opponents, by extracting agreements from a number of crown debtors to provide military service, either explicitly in France or wherever he should choose to direct it, in exchange for remission of debts.  The beauty of this practice, from the king’s point of view, was that although it might enable him to receive more in service than he was owed in cash, the necessary arrangements were not made on the basis of military obligation.  Rather they had the appearance, like all fines, of resulting from freely-conducted negotiations, to which, of course, there could be no objection even though the terms under which these agreements were made could certainly be onerous.  In June 1213 Robert of Berkeley undertook to provide ten knights, `well equipped with horses and arms’, who were to go overseas with the king and serve there for a whole year, at Robert’s expense, in order to gain quittance of 500 marks (£333. 6s. 8d.).  This sum was in fact only part of what he owed; the original debt had been 2000 marks (£1333. 6s. 8d.), which pardons and payments had by Michaelmas 1212 reduced to £900.  Assuming that Robert paid his knights 2s. each a day, and thus £36. 10s. per annum, their wages would have amounted to £365, a sum larger than the portion of the debt which this outlay was intended to clear, by an amount that was almost a knight’s yearly wage.  And when he returned to England he might still have had to pay anything up to £566. 13s. 4d. more, at terms which the king would determine.64 

Perhaps Robert of Berkeley protested, or perhaps John had second thoughts, for at the end of December, following the cancellation of a planned expedition, John toned down his demands to the extent of licensing Robert to provide five knights in each of two successive years, starting on 13 January 1214.65  A number of other debtors were granted a similar alleviation.  Robert de Curtenay, who owed the king 1100 marks (£733. 6s. 8d.), and had agreed to cross to France himself as one of twenty knights he was to provide, and to serve there with them for a year, was likewise allowed to send ten knights one year and another ten the next.66  His knights, if his own service is included, would have cost £730, almost exactly the amount of his debt.  If the exactness of the calculation, reinforced by the amendment of terms, was intended to secure Courtenay’s loyalty, or at any rate to avoid giving him grounds for disloyalty, then it probably succeeded.

In the case of Richard Gernon, lord of half the Cumberland barony of Burgh-by-Sands, the terms were so favourable as to look like a bribe (an unsuccessful one, since he rebelled in 1215) – he owed the king 250 marks (£166. 13s. 4d.), but was required to supply only one knight for a year.67  But others were treated with some rigour.  Hugh de Balliol had to find two knights to fight overseas for a year, which could have cost him £73, in order to be cleared of a debt of eighty marks (£53. 6s. 8d.).68  William de St John undertook to supply ten knights for service overseas, the equivalent of £365, on top of his proffer of 500 marks for his father’s lands – the money was to be paid on his return from France.69  Hugh de Neville, who had been out of favour a year earlier, was in 1213 obliged to find twenty knights for a year’s service, in order to secure quittance of a fine of 1000 marks – such a settlement would have left him £63. 6s. 8d. out of pocket.70  He and several others were being required to pay more, and thus to provide more service, than was needed to cover their debts. 

(f) Resistance

It has been estimated that all the agreements of this kind made in 1213 would have raised enough money to provide John with the services of 150 knights and twenty serjeants for a full year.71  And because these bargains were made individually they represented a form of commutation which was settled independently of scutage, which in 1214 those involved were required to pay as well, at the unprecedentedly heavy rate of three marks per fee.  That rate was of course far lower than the one used in most of the settlements of debts devised by the king - the single knight’s service provided by Richard Gernun, at £36. 10s., was much more expensive than a parallel scutage in 1214 would have been, at £2 per fee, had he in fact owed it (he held his lands by cornage).  But for most of those affected by demands for scutage alone, the pressure which the king now exerted on his subjects, in his last and greatest effort to recover his continental lands, became increasingly hard to bear, the more so because John’s money-raising devices seem to have had the effect of removing a great deal of coin from circulation – it became literally difficult to find the cash which the king so persistently demanded.72 

At first John was still able to enforce payment of scutage, but his defeat at Bouvines encouraged widespread resistance, and though receipts should have totalled £6353. 16s., only just over £1400 had been collected by Michaelmas.73  And actual service was refused by a number of the northern magnates and knights, standing by an assertion of the previous year that they were not obliged to serve outside England.74  In strict law the claim was of doubtful validity, but it voiced a widespread reservation, found in many parts of western Europe, against performing military service outside the country, and indeed away from homes that might need to be defended.75 The objections voiced against overseas service in the late 1190s had more localised counterparts in the assertion made by the knights of the honour of Hastings in 1211 or 1212 that they owed no service outside the rape unless their lord carried the cost, and in the Magna Carta of Cheshire, issued in the late summer of 1215, which conceded that the earl of Chester’s knights owed him no service `beyond Lyme ... except with their consent and at my expense ...’.76 

Alexander of Swerford, a clerk who was employed in the exchequer during John’s reign, and who later compiled its `Red Book’ as a work of record and reference, believed that the 1214 scutage was the principal cause of rebellion against the king.77  That may have been an exaggeration, but it seems clear that in 1214 resistance to demands for service and scutage combined to form an important strand of opposition.  The changing nature of warfare meant that impositions of scutage affected depths in landowning society which summonses to perform military service seldom reached, with the result that behind the magnates, lay and ecclesiastical, stood large numbers of disaffected sub-tenants, free landowners of every rank, united in their hostility to the king’s continuous demands.  But the resentment of lesser men would in itself have been insufficient to secure a clause in Magna Carta, had not the tenants-in-chief not only given a lead, whether in response to their own grievances or to those of their tenants, but also had a particular need for the redress that Clause 16 promised them.  The issue of service was one concerning which the tenant-in-chief had very limited options when it came to obtaining relief.  The sub-tenant whose lord was trying to exact more services than were owed could obtain a writ of ne vexes instructing the lord to desist from his demands, and by extension threatening him with action by the sheriff if he did not comply.78  The issue of right could then be determined by the grand assize, by a jury of twelve knights.  Such, for instance, was the recourse of Bernard FitzWilliam, in an action against `Countess Eve’(i.e. Aífe, the widow of Richard FitzGilbert de Clare, `Strongbow’), who he claimed was demanding excessive service and customs (superdemanda servicii et consuetudinum) from a virgate of land which he held of her in Weston, Hertfordshire.79 It is possible that the countess was trying to pass on a royal demand for scutage, on terms which Bernard found unacceptable, and that this was his preferred option for obtaining justice.  But no such remedy was available to Eve herself, if she believed that the king was requiring more from her in the way of services than she owed.80 

The tenant-in-chief who was confronted by an over-exigent king, and who did not choose to resist or rebel, could attempt to buy relief, or he could appeal to the king as the fount of justice, though in the latter case he must have known that access to the royal conscience was usually gained only by way of the royal purse.  Clause 16 in effect registered an appreciation that by 1215 such recourses had become no more than a matter of robbing Peter in order to pay Paul.  Expressed in broad and general terms because the king’s rights where military service was concerned were themselves broad and general, it articulated a widespread opinion that John’s exploitation of those rights had become intolerable.  The only plausible cure for the practices involved was therefore their prevention, even though it proved impossible to define with precision what was being prohibited.  

1

J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 427-8, discussed at 315-16.

2

M. Powicke, Military obligation in medieval England (Oxford, 1962), 61.

3

M. Prestwich, Armies and warfare in the middle ages: the English experience (Yale, 1996), 120.

4

K. Leyser, `Warfare in the western European middle ages: the moral debate’, id., Communications and power in medieval Europe ii: The Gregorian revolution and beyond, ed. T. Reuter (1994), 189-203, at 193-4.

5

R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II and Richard I: iv, The chronicle of Robert of Torigni (Rolls Series, 1889), 202.

6

T.K. Keefe, feudal assessments and the political community under Henry II and his sons (Berkeley, 1983), 12-15.

7

ib., 87-9.

8

PR 18 Henry II (1172), 22, 37.

9

PR 33 Henry II (1187), 13-14, 28.

10

Powicke, Military obligation, 56 (citing Gervase of Canterbury)

11

I.J. Sanders, Feudal military service in England (Oxford, 1956), 50.

12

Jocelin of Brakelond, Chronicle of the abbey of Bury St Edmunds, ed. and trans. D. Greenway and J. Sayers (Oxford, 1989), 76-7.

13

F.M. Stenton, The first century of English feudalism, 1066-1166 (2nd edn., Oxford, 1961), 185-6; S.K. Mitchell, Studies in taxation under John and Henry III (New Haven, 1914), 24-5.

14

Jocelin of Brakelond, 58-60.

15

Curia Regis Rolls v, 1207-1209 (1931), 5; VCH Buckinghamshire iii (1925), 209-10.

16

Curi Regis Rolls iv, 1205-1206 (1929), 146; VCH Oxfordshire xi (1983), 147.

17

Curia Regis Rolls i, temp. Richard I-1201 (1922), 406.

18

L.C. Loyd and D.M. Stenton (eds.), Sir Christopher Hatton’s book of seals, Northamptonshire Record Society 15 (1950), no. 337 (pp. 232-3).

19

Curia Regis Rolls i, 16.

20

Mitchell, Studies in taxation, 26-7.

21

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835), 128.

22

PR 3 John (1201), 21-2, 34, 171-2.

23

Rotuli de oblatis et finibus, 145, 146, 161.

24

Ibid., 162.

25

Ibid., 162, 163.

26

Ibid., 158, 164-6.

27

W. Stubbs (ed.), Chronicon Rogeri de Houeden, 4 vols. (Rolls Series, 1868-71), iv, 160-1.

28

D.H. Farmer and D.L. Douie (ed. and trans.), Magna Vita Sancti Hugonis, 2 vols. (1961-2), ii, 98-100.

29

Jocelin of Brakelond, 76-7.

30

PR 3 John (1201), 224.

31

PR 5 John (1203), 100.

32

PR 6 John (1204), 45.

33

Ibid., 50, 118.

34

J.C. Holt, The northerners: a study in the reign of King John (Oxford, 1961), 205-6.

35

Mitchell, Studies in taxation, 57, 65-6, 79.

36

Rogeri de Wendover liber qui vocatur flores historiarum, ed. H.G. Hewlett, 3 vols. (Rolls Series, 1886-9), i. 320.

37

W. Stubbs (ed.), The historical works of Gervase of Canterbury, 2 vols. (Rolls Series, 1879-80), ii, 96-8.

38

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835), 55.

39

Radulphi de Coggeshal chronicon Anglicanum, ed. J. Stevenson (Rolls Series, 1875), 152-4.l

40

Mitchell, Studies in taxation, 69-71.

41

PR 5 John (1203), 256; PR 6 John (1204), 144.

42

PR 5 John, 20; PR 6 John, 254-5.

43

PR 8 John (1206), 45 (Cumberland), 189-90 (Wiltshire).

44

PR 12 John (1210), 81.

45

Ibid., 138-9.

46

H.M. Chew, The English ecclesiastical tenants-in-chief and knight service (Oxford, 1932), especially 23-4, 51-2.

47

Mitchell, Studies in taxation, 104.

48

PR 12 John (1210), 4; PR 16 John (1214), 166.

49

H. Hall (ed.), The red book of the exchequer, 3 vols. (Rolls Series, 1896), i, 370-1.

50

PR 12 John (1210), 215.

51

PR 13 John (1211), 37

52

Red book of the exchequer, i, 415-18.

53

Details from Mitchell, Studies in taxation, 97

54

Prestwich, Armies and warfare, 68.

55

Red book of the exchequer, i, 301-2.

56

PR 12 John (1210), 171.

57

PR 13 John (1211), 2.

58

Ibid., 243.

59

Details from Curia Regis Rolls vi, 1210-1212 (1932), 79; PR 11 John (1209), 107; PR 12 John (1210), 59, 73; The book of fees commonly called Testa de Nevill, 2 vols. in 3 (1920-31), i, 86.

60

Discussed by S. Painter, The reign of King John (Baltimore, 1949), 208-11.

61

Book of fees, i, 118.

62

Ibid., i, 97.

63

Roger of Wendover, ii, 66-7; W. Stubbs (ed.), Memoriale Walteri de Coventria, 2 vols. (Rolls Series, 1872-3), ii, 209.

64

PR 14 John (1212), 144-5; Rotuli de oblatis et finibus, 468.

65

Rotuli de oblatis et finibus, 515.

66

Ibid., 469, 515.

67

Ibid., 485.

68

Ibid., 490.

69

Ibid., 477.

70

Ibid., 469.  For Neville’s relations with the king see Holt, The northerners, 227.

71

Holt, Magna Carta, 192-3.

72

As argued by J. Bolton, `The English economy in the early thirteenth century’, S.D. Church (ed.), King John: new interpretations (Woodbridge, 1999), 27-40.

73

Mitchell, Studies in taxation, 112 and note 80.

74

Holt, The northerners, 88-9, 94-5, 100.

75

Holt, Magna Carta, 77-8.

76

Sanders, Feudal military service, 55; G. Barraclough (ed.), The charters of the Anglo-Norman earls of Chester, c. 1071-1237, Lancashire and Cheshire Record Society 126 (1988), no. 394 (p. 390, clause 10).

77

H. Hall (ed.), The Red Book of the Exchequer, 3 vols. (Rolls Series, 1896), i, 12.

78

G.D.G. Hall (ed. and trans.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 141; J. Hudson, The Oxford history of the laws of England ii: 871-1216 (Oxford, 2012), 641.

79

Curia Regis Rolls i, temp. Rich. I- 1201 (1922, 4.

80

For discussion of other difficulties of this kind confronting tenants-in-chief in their dealings with the king, see Holt, Magna Carta, 126-8.


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Original Latin

XVII

Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo.

17

Common pleas are not to follow our court but are to be held in some fixed place.

Audio commentary

Referenced in

The regency government of Peter des Roches (The Itinerary of King John)


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Original Latin

XVIII

Recognitiones de nova dissaisina, de morte ancestoris, et de ultima praesentatione, non capiantur nisi in suis comitatibus et hoc modo; nos, vel, si extra regnum fuerimus, capitalis justiciarius noster, mittemus duos justiciarios per unumquemque comitatum per quatuor vices in anno, qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, capiant in comitatu et in die et loco comitatus assisas praedictas.

18

Recognitions of novel disseisin, mort d’ancestor and darrein presentment are not to held except in the counties concerned, and in this manner: we, or our chief justiciar if we are outside the kingdom, are to send two justices through every county four times in the year, who with four knights of each county chosen by that county court, are to hear those assizes in the county court, and on the day and at the place of the meeting of the county court.

Audio commentary

Referenced in

The regency government of Peter des Roches (The Itinerary of King John)


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Original Latin

XIX

Et si in die comitatus assisae praedictae capi non possint, tot milites et libere tenentes remaneant de illis qui interfuerint comitatui die illo, per quos possint judicia sufficienter fieri, secundum quod negotium fuerit majus vel minus.

19

And if those assizes cannot be held on the day of the county court, as many knights and free tenants are to remain out of those who were present on that day of the county court [as are needed] for the sufficient making of judgments, according to whether the business is great or small.

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Original Latin

XX

Liber homo non amercietur pro parvo delicto, nisi secundum modum delicti; et pro magno delicto amercietur secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo salva mercandisa sua; et villanus eodem modo amercietur salvo wainnagio suo, si inciderint in misericordiam nostram; et nulla praedictarum misericordiarum ponatur, nisi per sacramentum proborum hominum de visneto.

20

A free man is not to be amerced for a small offence except in proportion to the nature of the offence, and for a great offence he is to be amerced in accordance with its magnitude, saving to him his livelihood, and a merchant in the same manner, saving to him his stock in trade, and a villein is to be amerced in the same manner, saving to him his growing crops, if they fall into our mercy. And none of the aforesaid amercements is to be imposed except by the oath of trustworthy men of the vicinity.

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Commentary for academic researchers

Amercements: impact and meaning

The drafters of Clause 20 probably had in mind clause 8 of Henry I’s coronation charter, which had promised an end to the practice whereby under William I and William II anyone committing an offence had been obliged to offer all his moveable goods as a pledge for the resulting amercement, which in future would be exacted in proportion to the offence (secundum modum forisfacti).1  No such clause found a place in the `Unknown Charter’ drawn up early in 1215, even though it shared a good deal of common ground with Henry I’s charter, but a version of Clause 20 appeared as Article 9 among the Articles of the Barons.  The immediate context of both was the same, in that each followed a clause concerned with the hearing of assizes, and then formed part of a short sequence dealing with the imposition of amercements – perhaps the fact that judicial proceedings generated a great many amercements made this arrangement seem appropriate.  But there were also differences between Article 9 and Clause 20 which, although small, are still important, and show how concerned the draftsmen of the Charter could be to achieve clarity and precision.  

In terms of presentation, the Clause differs from the Article in being formulated as an emphatic negative.  It states what is not to be done, whereas the Article confines itself to setting out what ought to happen.  Where content was concerned, both Article and Clause gave space to others besides the free men to whom the benefits of Magna Carta were usually reserved.  The inclusion of merchants was probably a concession intended to benefit the city of London, and incidentally other urban communities as well, by ensuring that no traders, whatever their origins, who infringed English laws and customs, were so heavily penalised as to endanger their capacity to import wholesale the valuable goods whose sale by retail was monopolised by Englishmen.  The appearance of this provision at the end of the Article may show that it was a last-minute addition, and as such it probably had the effect of blunting the force of the other two provisions, and especially the one which (uniquely in Magna Carta) protected the livelihood of villeins.  The latter was not included out of any tenderness for the rights of the unfree, but rather to complement the safeguards provided for those of their lords, the free men with whom both Article and Clause commence.  Not only were free men not to be amerced to the extent of endangering their livelihoods (contenementum – a word expressive of status as well as material resources), but care was also taken to ensure that serfs were not subjected to demands which might have had the effect of making their masters’ estates unviable.  When Article 9 was revised as Clause 20, the sub-section dealing with merchants was placed after that relating to free men, to whom, indeed, they were closer in status, while the one relating to villeins came third, with an additional phrase which effectively spelt out their continuing subjection by making it plain that they – and only they - were to be protected solely against the excessive demands of the king, and not those of their lords (this is made especially clear in the French version of the Charter).2  A discrete concluding sentence laid down that in every case amercements were to be assessed by trustworthy neighbours, acting under oath.

The word `amercement’ seems to have been originally applied to the process of assessment whereby it was decided how much someone whose wrong-doing had placed him in, or more idiomatically at, the mercy of his lord, should pay to redeem his offence.  But during the twelfth century the process of assessment was elided with the penalty which resulted from it, so that an amercement became the term conventionally used to define a monetary penalty.3  Today it would be called a `fine’, but in medieval England a fine represented a deal struck between two (or more) parties – in fiscal terms it was the sum which a petitioner, litigant or offender agreed to pay in order either to bring proceedings to an end or to obtain a favour or benefit – release from custody, for example.  Nominally, at least, there was an element of negotiation about a fine, whereas an amercement was effectively an imposed punishment, limited in its amount only by undefined custom and by the means of the offender. 

Offences and punishments

Many of the largest debts incurred by the subjects of the Angevin kings took the form of fines, having been agreed upon, whether or not under duress, in the king’s dealings with the person or community concerned.  Amercements were overwhelmingly levied in courts.  Any lord with a court could use it to impose amercements for offences against the peace or the by-laws, but in most such courts both misdeeds and penalties were relatively insignificant.  The king’s courts, with their well-nigh limitless jurisdiction, were potentially a very different matter.  According to the early twelfth-century treatise Leges Henrici Primi, the offences which placed a man in the king’s mercy included treason, coining, rape, the slaying of royal servants, and `manifest theft punishable by death’,4 all of which could entail the severest physical punishment for those convicted of them, while the author of the Dialogus de Scaccario, writing late in Henry II’s reign, maintained that even the smallest offence putting someone `in the king’s mercy’ could lead to the offender losing all his moveable goods, while serious crimes could result in the loss of lands, limbs and lives.5 

In fact, although serious crimes continued to be punishable by death or mutilation, the royal courts throughout the twelfth century commonly preferred to impose financial penalties for offences against the king’s majesty.  The sums involved could, however, be substantial.  Although amercements are rarely distinguishable from fines in the pipe roll for 1130, it would appear that the former included payments of seven marks for concealment of a thief, ten marks for making a statement which could not be proved, and twenty, forty and even 100 marks `for breach of the peace’, along with murder fines (amercements despite their name) on communities, which could amount to twenty, twenty-five, thirty, and in one case sixty marks (though this last fine was pardoned), while then as later the penalties for offences against the king’s forest were severe, with amercements of 100 marks being imposed `for the plea of a hind’ and 200 marks for `a plea of a stag’.6  During the reign of Henry II that king’s legal reforms saw a general flattening-out of the level at which amercements were imposed.  Very large numbers of people came within the orbit of his courts, and especially the eyres held at increasingly regular intervals by justices itinerant, where they were placed in the king’s mercy, both as individuals and as members of communities, for every kind of legal shortcoming and procedural infringement.  A typical example of the result is provided by the recorded issues of the 1194 Yorkshire eyre, which shows the sheriff accounting for £68. 13s. 4d. made up of undifferentiated `little amercements’, after which there comes a huge mass of individual entries, extending over several pages in the printed edition.  Imposed for default, for failing to prosecute, for making a false claim, for failing to produce the person pledged, and for all the other minor offences which came within the cognizance of an eyre, they include just one amercement of 40d., for infringement of the assize of wine (probably the sort of `little amercement’ usually accounted for within the sheriff’s lump sum), otherwise it is clear that except for the very poor, 6s. 8d. had become the standard minimum rate, and also the sum by far the most commonly demanded.  It was increased to 10s. or 13s. 4d. in numerous cases, with multiples of these figures being levied on serious offenders or the better-off, but it became relatively unusual for more than £5 to be taken.

Unusual but not unknown.  Although there was a steady trend towards many more but smaller amercements, it would not be true to say that larger sums were never exacted.  The threat of total forfeiture persisted under Henry II – in 1164, according to William FitzStephen, Thomas Becket complained that he had been treated unjustly in being condemned to be in the king’s mercy, and so `to lose all his movable goods’ (in poenam pecuniariam omnium bonorum mobilium)7 – and some very heavy amercements were imposed.  In 1170 the failure of the men of the Isle of Wight to appear before the king’s justices cost them £100,8 and when in 1172 five men were amerced for at first denying having any of the abbot of Hyde’s chattels and then admitting that they had them, one man was charged with 26s. 8d., a second with 40s., and two more with £13. 6s. 8d. apiece, while Ralph the cook was required to find £100.9  Four years later the abbot of Peterborough was recorded as owing 200 marks `for the man whom Peter de St Medard killed’,10 and in 1185 a default on the part of the earl of Gloucester’s steward cost him fifty marks.11  Peter son of Adam, because he ignored a summons to attend the chancellor on the king’s business, was amerced of £100 in 1192,12 while William of Holme, who released a suspected killer to pledges and seemingly kept no record of the latter’s names, was required in 1194 to pay £46. 10s. 10d. for his deficiencies.13  Retribution following the great rebellion of 1173/4 included an amercement of 500 marks upon Gospatric FitzOrm `because he surrendered the king’s castle of Appleby to the king of Scots’,14 and more typically, offences against the king’s forests also continued to be severely dealt with – in 1176 four Yorkshire barons were amerced of £100 each pro foresta, while Herbert FitzHerbert had to pay as much as 500 marks for a like offence in Hampshire.15 

Processes of assessment

No later than the 1160s the justices could take local advice as to how what must sometimes have been serious offences should be punished, though they do not always seem to have accepted it.  In 1168 it was recorded that Samuel the priest of Pilton, Somerset, had earlier been amerced of 100 marks before William FitzJohn, an experienced royal justice, after being initially been assessed (admensuratus) at forty marks by his neighbours – per sacramentum vicinorum suorum.16  FitzJohn probably regarded Samuel’s unidentified offence as meriting a heavier punishment, but he clearly ignored, as the assessors presumably did not, the question of whether the priest could actually afford to pay such a sum, and in the end the king pardoned Samuel £40 of his debt on account of his poverty (he paid the remaining £20 within the next five years, suggesting that his `poverty’ was in fact a somewhat relative condition).  As the number of amercements increased, and with them their contribution to the king’s revenues, so the issue of their assessment, in relation both to the offences for which they were imposed and to the means of the offenders who were being punished for them, became more pressing.  That a financial penalty should be proportionate to the offence was a principle to which Henry I’s charter of 1100 had paid lip service, and it was also upheld by both Roman and canon law.17  But although it has been observed that the term delictum, as used in Clause 20, and here translated as `offence’, was being employed in the same sense by the learned law of the twelfth and thirteenth centuries, the latter’s influence was probably slight.18  By the 1180s there are clear signs in the emergent literature of English common law and exchequer procedure that thought was being given to questions of proportionality, thought which without any discernible reference to the teachings of the learned law went some way towards anticipating Clause 20 of Magna Carta..   

Thus when the treatise known as Glanvill, written in the last years of Henry II’s reign, discussed the aids which lords could demand from their free tenants, and also the penalty for encroachments on the king, seemingly by tenants-in-chief, it placed limits on what could be required, in both cases so as to safeguard for those affected the property that they needed to enable them to maintain their status – their contenementum, the same term used in the Charter.  In the latter case, moreover, any amercement was to be assessed `by oath of the lawful men of the neighbourhood’ – per iuramentum legalium hominum de visneto, a phrase strikingly close to the one used in the same context by Magna Carta (per sacramentum proborum hominum de visneto).19  Another treatise, the Dialogus de Scaccario, which was perhaps written a few years before Glanvill, described in a passage full of praise for Henry II how the king’s justices itinerant `spared the labours and the possessions of the poor’,20 and in later chapters devoted to the processes of distraint for the payment of amercements (pena ... pro excessu), it placed certain limits on the goods that might lawfully be taken, and in addition prescribed that a knight was always to be allowed to keep a horse, to enable him to retain his status (dignitate).  If a knight was a true fighting man, moreover, he was to be entitled to keep his weapons as well as his mount, so that he could still maintain the dignity of knighthood.21  Contenementum implied social rank as well as wealth;22 the Dialogus, in describing the government’s pursuit of the latter, showed as much concern as Clause 20 to uphold the former.

Clause 20 had a multiple focus, upon the size of the amercements imposed by the king and his agents, on the effects these might have on those subjected to them, and on the manner of their assessment.  The Charter accepted that serious offences might merit weighty punishments, and expressed concern only that amercements should not be so heavy as to ruin offenders, either socially or economically.  Subject to that restriction, the king’s traditional power to require any payment he chose for admission to his mercy remained to outward appearances untouched.  That power was, however, called into question by the Clause’s last sentence, laying down that all the amercements referred to were to be imposed by the oath of honest men of the neighbourhood.  The imprecision is striking.  The great men of the realm, the earls and barons, secured the insertion of a clause (no. 21) specifying that the assessment of their amercements was to be reserved to their peers, but no such provision was made for their social inferiors.  Possibly the drafters of the Charter felt unable to devise a formula which simultaneously covered free men, merchants and villeins.  It must have been assumed that although local worthies, whatever their social level, might sometimes choose to uphold communal values by imposing stiff penalties, the overall effect of their decisions would be to keep amercements down; when the men of Dunwich secured a charter from King John in 1200 which included the privilege of separate representation by a jury of twelve men before justices itinerant, and the accompanying concession that should this jury incur an amercement, the sum was to be decided upon `by six trustworthy men of their borough, and by six trustworthy men outside the borough’,23 the underlying presumption was certainly that this would result in smaller payments at future eyres. 

There had been attempts before 1215 to limit the size of amercements, or at any rate to create conditions in which they could be controlled.  Less than a decade earlier the North Yorkshire baron Peter de Brus had issued a charter for the knights and free tenants of Langbaurgh wapentake, in which he conceded that amercements were to be assessed in accordance with the means, as well as the offence, of the transgressor.24  (He did not say who was to make the assessment, though presumably men attending the wapentake court would have been involved.)  A number of boroughs had secured charters during the twelfth century which set specific limits on the amercements which could be imposed in their courts,25 but there is nothing to suggest that such privileges were intended to protect their citizens against the demands of the crown.  London’s royal charter of the early 1130s had declared that no Londoner was to be amerced of more than 100s. (still a substantial sum), but although this was effectively confirmed by Henry II when he granted that no citizen was to be `fined at discretion except according to the law of the city which they had in the time of King Henry my grandfather’,26 that did not prevent William son of Isabel from being amerced of 1000 marks (£666. 13s. 4d.) in 1185, for offences which included taking a bribe to allow a suspected forger to be released to inadequate pledges.27  William’s transgressions may well have been serious, but the size of his amercement probably owed more to his wealth – a financier and property-owner, he was one of London’s sheriffs at the time28 – than to his misdeeds.  A panel of neighbours could have been expected to deal less harshly with him, and indeed, where poor people were concerned the king’s government seems to have been content to leave the task of assessment to the judgment of their peers, as, indeed, they did in London itself; when the disturbances provoked by William FitzOsbert were punished in 1196, according to the chronicler Ralph de Diceto, `the poor gave adequate satisfaction according to the assessment of the neighbours’ (pro vicinorum arbitrio).29

The range of penalties

It was not, however, the crown’s demands upon the poor that the drafters of Magna Carta were primarily concerned to control (the king and his justices did in fact on a few occasions remit amercements entirely because of an offender’s poverty).30  The king’s power to amerce, as already noted, was in theory subject to few limits, and inevitably it was principally directed against such of the rich and powerful as he wished either to exploit or dominate.  The most spectacular payments exacted from their subjects by the Angevin kings of England took the form of fines, but amercements, too, had an important place in the armoury of casual and supplementary payments (in accidentibus, plus in accessoriis ...) with which, as Gerald of Wales observed, Henry II and his successors compensated themselves for shortfalls in more conventional revenues.31  Clause 20 distinguished between small and large offences, and ordered that each should be punished in accordance with its magnitude.  The king’s justices no doubt decided on the seriousness of an offence, and on the punishment it merited.  Where the penalty took the form of an amercement, to leave its assessment to royal officers was to invite oppression and extortion, and indeed, the very fact that Clause 20 also stipulated that amercements should be assessed by neighbours, in line with the practice described by Glanvill and recorded in the early years of Henry II’s reign, underlines the extent to which the king and his agents had by the early thirteenth century come to control the consequences of judgments in royal courts.  Without the safeguard provided by the Clause, the weight of those judgments, which could at any time be heavy under Henry II and Richard I, eventually became still more so, in both scale and frequency, under John.

The process was a slow one, however, and charting its development is made more difficult by problems of definition.  For much of his reign John raised much more money by fines than amercements, but fines could themselves be the products of amercements, since men and women could find themselves in the king’s mercy and then bargain to be released from it.  They could also make agreements to reduce their amercements, presumably either because the latter had been set too high or because the king preferred to take whatever money was available rather than wait for more at a later date.  In 1208, for instance, three Yorkshiremen who had been amerced at a total of £206. 13s. 4d. for forest offences agreed to pay £100 and a palfrey `for having quittance of the aforesaid amercements’, and then paid their revised debt within twelve months.32  What their initial transgression had been it is impossible to say – the records speak only of `default’, a term of wide application – and this highlights a further difficulty, that of assessing the seriousness of offences on the basis of records which were usually more concerned to register debts than to provide an explanation for them. 

There were certainly occasions when substantial amercements arose from what appear to have been serious misdeeds or from actions which any king would have wished to punish severely.  For instance, the large sums which in 1198 were imposed on individuals and communities in East Anglia for sending corn to the king’s enemies in Flanders, in some cases amounting to hundreds of pounds, could be justified by the offenders’ having in effect tried to frustrate a vital strand in Richard I’s foreign policy.33  The amercements imposed on the abbots of Malmesbury and Stanley and the archdeacon of Dorset, of 100 marks, sixty marks and twenty marks respectively, which are recorded on the fine roll as having been imposed in 1201 `for contempt of the king’s court’, can be seen to have resulted from a summons to attend the coram rege court to face a charge of hearing a plea in Court Christian concerning tithes allegedly due from a royal serjeanty.  They had neither obeyed the summons nor offered excuses (`essoins’) for their non-attendance, and though their punishment may have been harsh, it was not incomprehensibly so.34  It is at least possible that Geoffrey Salvage, who in 1204 paid an amercement of 200 marks `for his custody of Woodstock’, on condition that he accounted for his outlays and receipts, had been seriously incompetent, or dishonest, in his management of an important royal manor.35 

But it was in any case accepted that the rich should pay more than the poor, either in contributing to a common amercement or when being assessed individually.  When in 1180 the burgesses of Colchester incurred a heavy amercement for releasing a thief (indisputably a serious offence), amounting in all to £93. 13s. 4d., it can have aroused no surprise that the range of the seventeen amercements imposed on individuals was wide; one man paid as much as twenty-five marks, and three contributed twenty marks each, but four gave only one mark apiece, while a single payment of five marks came from all the other burgesses of the town acting together.36  Most recorded amercements were imposed before royal justices, and these show a consistent pattern, for most of John’s reign, of many small sums interspersed with occasional much larger ones.  The proceeds of the 1203 Yorkshire eyre, for instance, were recorded as consisting of a single lump sum accounted for by the sheriff, a total of £924. 10s. 5d. which would have been largely made up of the amercements imposed on humble people, no doubt involving sums too small to be regarded as worth recording separately, and then a considerable number of individual amercements owed by communities and individuals, mostly of sums between 6s. 8d. and 20s., but including a small number of much larger debts, exacted either for offences which were regarded as unusually serious or simply because those upon whom they were levied had the means to pay them.  This last category included such penalties as the £200 exacted from the township of Beverley `for badly kept measures’, the sixty and eighty marks owed by Mauger le Vavasur and Otto of Barkston respectively `for concealment’, forty marks due from William of Marton, presumably a coroner, `for a badly kept roll’, and sixty marks charged against Hugh FitzGernegan simply `for an amercement’ (de misericordia).37

King John was an exceptionally mobile ruler, who often heard lawsuits in the course of his travels.  Some of the actions he heard involved important people or serious matters, and might lead to substantial amercements, but overall the financial issues of his sessions long resembled those of his justices.  Probably during September 1207, for instance, proceedings `in the king’s eyre in Dorset and Somerset’ resulted in a total of sixteen amercements, eleven of them of 6s. 8d., one of 20s., one of 40s., one of £5, one of £20 (`for disseisin’), and one, on the Dorset knight William of Whitfield, of 200 marks (£133. 6s. 8d.) `for default concerning Swyre church’, a sum which an act of royal grace promptly reduced by half.38  In the previous year John had been in Yorkshire, where `amercements by the king’ were charged against the heads of a number of religious houses `for disseisin’; the sums involved ranged from ten to forty marks, of which the latter, upon the abbot of Sawley – a house far less prosperous than Roche or St Mary’s, York, whose abbots were both amerced of twenty marks - was then pardoned by the king who had imposed it.39  Though not massive, these were larger than average amercements (when John was in Yorkshire in 1205, the recorded issues of his `eyre’ there consisted entirely of sums between 6s. 8d. and 20s.),40 exacted from important people.  

The king’s caprice could doubtless always decide the size of an amercement, and custom also accepted, if grudgingly, that the penalties demanded for infringements of forest law might be arbitrarily determined, since the forest was `subject to the sole judgement of the king or his specially appointed deputy’, and subject to laws `based on the will of princes.’41  Amercements for forest offences could certainly be heavy under John, but so they had been under his predecessors, and under any king they could be cancelled or reduced as readily as they had been imposed.  In 1206, for instance, the abbot of Furness in Lancashire was recorded as owing 200 marks and two palfreys to be quit of the 500 marks `with which he was amerced out of the king’s mouth (per os Regis) concerning the forest ...’.42  The pattern for the penalties imposed at a forest eyre was very similar to that of an eyre for common pleas. After forest justices had visited Yorkshire in 1208, for instance, the pipe roll recorded the sheriff as accounting for nearly £190 in undifferentiated amercements, and then listed a number of mostly modest debts, among which sums the thirty marks owed by Robert de Stuteville and the fifty marks owed by William Fairfax stood out.43

How all these amercements were assessed is unrecorded.  Many, as the well-nigh unavoidable punishments for infringements of regulations, property disputes and brawls among neighbours, were probably automatically imposed at what were effectively standard rates, with the wealthy paying somewhat more than the rest to make up for what could not be extracted from the poor, and larger amercements being imposed on hundreds and wapentakes in proportion to their size and prosperity.  A whole county naturally paid more still – in 1202, for instance, Westmorland paid a common amercement of sixty marks `for concealment’,44 while in 1203 a similar offence cost Lancashire 100 marks45 – and as already seen, large amercements could on any occasion be imposed on men (and, indeed, women – the dowager countess of Clare was amerced of forty marks for disseisin by the king in 1206)46 of substance.  For these the justices, or the king, no doubt took advice, as William FitzJohn had done, from men of the county, who, however, were probably more likely in such cases to be royal officials than freely-chosen representatives of their communities, large or small. 

Turning the screw: the `autumnal justices’

Royal justices of all kinds, not to mention the king himself, descended on the English shires almost every year during John’s reign, and their constant demands must have made the price of justice feel decidedly weighty.  That it did not seem intolerable was probably because it was so widely diffused, and also because the king’s largest exactions still took the form of fines, which retained the character of freely-negotiated agreements; amercements, by comparison, were still relatively modest in scale.  That may have begun to change in 1209, when a further forest eyre in Yorkshire – the king was engaged in an active campaign to recover lost forest rights there during these years - resulted in the sheriff accounting for only £10. 17s. 3d. in undefined amercements, but more and larger demands being made on individuals.  Adam of Staveley was amerced of £40 and two palfreys (in effect another ten marks), Robert le Vavasur and Robert de Stuteville of 100 marks each, the abbot of Whitby of £62. 14s., Guiomar son of Warner of £50, Gilbert of Acton of fifty marks, and there were numerous other amercements involving sums that were not much smaller.47  Ordinary eyres in this year were less exacting in purely fiscal terms, but in some cases suggest that the net for the king’s demands was now being spread very widely indeed.  The sheriff of Lincolnshire accounted for only about £90 (the manuscripts conflict as to the exact sum) in amercements, but in doing so he presented a startling 641 tallies,48 suggesting that money was being taken from almost anybody who had some, often in tiny amounts.  It is also noticeable that a large number of the individual amercements, usually of modest sums, which were recorded on the pipe roll were entered without any reason being given, as if it had ceased to matter why those affected had come to be in the king’s mercy.

Then in 1210 King John and his agents threw restraint to the winds and without any apparent concealment began using judicial visitations simply as a means of raising money, and perhaps also instilling discipline, through substantial amercements which were commonly imposed on decidedly nebulous grounds.  Little can be said of the men appointed to serve as `autumnal justices’ (as they are commonly called - in fact they circulated in high summer, and `harvest-time’ would be at least as appropriate an epithet) except that they appear to have been of only local standing, chosen essentially because they could be expected to know about the means of the men they were required to target.49  They visited most of the counties of England, and imposed penalties on individuals – never on communities - which were few in number, by comparison with those resulting from ordinary eyres -  but often considerable in amount.  The justification for them in a large majority of cases (eighty-eight out of 104) was an undefined `trespass’, though procedural deficiencies - `false speaking’, for instance, or failure in attaint (that is, failing to prove that a jury had given a false verdict) – were also sometimes cited.50 

Not everybody penalised by these visitations can be identified, but the evidence strongly suggests that the targets for this fiscal onslaught were less the great men of the realm than the important men of the shires.  A very few were minor barons or of near-baronial rank.  John le Vicomte (amerced of sixty marks) was lord of the modest Northumberland barony of Embleton,51 and William de Montagu (fifty marks) was a minor tenant-in-chief in Somerset who was related to the barons of Chiselborough,52 while Richard Engaine (£200 and four fox-hounds), held a serjeanty in Cambridgeshire and around 1215 inherited half the Northamptonshire barony of Bulwick through his mother.53  Others were royal servants.  Roger de la Dune (200 marks) had been constable of the Tower of London,54 and Richard of Seething (200 marks)55 and Alexander of Pointon (100 marks)56 both acted as justices itinerant, while Gilbert of Abinger (100 marks) and Gilbert Prodome (fifty marks) held assizes in Surrey in the same year that they were themselves amerced for `trespass’ there.57  Henry of Cobham (thirty marks), a member of a rising Kentish family, was the beneficiary in 1208 of an extended royal charter confirming him in his estates,58 and had clearly also gained from his employment by Reginald of Cornhill, one of John’s leading agents, so much so that after his patron’s death in 1209/10 he proffered 1000 marks `for having the king’s benevolence’.59 

Many of those amerced in 1210 were knights who served as electors or jurors of the grand assize – the five Cumberland men amerced of a total of 260 marks all acted in this capacity60 – and others carried out other judicial or administrative functions as well.  William Puignant (sixty marks), was a knight of the grand assize in Kent, where in 1212 he was also one of twelve knights summoned to investigate whether Archbishop Hubert Walter had died possessed of Shirley moor.61  In the latter year Robert le Vavasur (100 marks), a knight of the grand assize in Yorkshire, was recorded as one of a group of knights – they also included Alan of Wilton (100 marks) - appointed to act for the sheriff in holding pleas in Yorkshire county court.62  Philip of Burnham (forty marks), a knight of the grand assize in Norfolk, was a commissioner appointed in 1213 to investigate the losses suffered by the church in the diocese of Norwich during the interdict.63 

A number of the men targeted by the `autumnal justices’ were tenants-in-chief, admittedly sometimes in a very small way – Henry de Furnell (£100) held a third of a fee in Devon,64 Roger de St John (sixty marks) two thirds of a fee in Oxfordshire.65  Such men and others who did not hold directly from the crown might nevertheless be substantial landowners by reason of mesne tenures which also linked them to men greater themselves.  In some cases these were ecclesiastical magnates.  Guy of Helbeck, Westmorland (sixty marks), was a tenant in Otterington, North Yorkshire, of part of the bishop of Durham’s barony of Allertonshire,66 and Joscelin of Walpole (200 marks) held a number of estates in East Anglia from the bishop of Ely,67 while Richard of Gosfield (sixty marks) was several times recorded as appearing in court on behalf of the abbot of Bury St Edmunds.68  Others held of secular barons.  Thus Fulk Baynard (sixty marks) held eight and a half fees of Robert FitzWalter,69 Thomas of Astley (sixty marks) was a tenant of the earls of Warwick,70 and Gilbert Prodome held one fortieth of a fee of the Say barony of West Greenwich.71 

The motives behind this campaign of financial oppression are made harder to fathom because a significant proportion of many amercements was pardoned.  Among those recorded for Norfolk and Suffolk, for instance, nearly all on the grounds of unspecified `trespass’, Richard of Seething was only required to pay half of what he owed, which he did in the following year, and Alexander of Dunham likewise paid only half his amercement of 100 marks, while Richard of Gosfield was pardoned twenty out of sixty marks.  Fulk Bainard, on the other hand, was granted no such remission, while Joscelin of Walpole had paid all his 200 marks within a few months.72  The largest single amercement arising from the entire circuit, one of 500 marks upon the Northamptonshire landowner (and future sheriff) Henry of Braybrooke, was swiftly reduced to 300 marks by a royal writ.73  But even when they had been reduced by a third or a half, the amercements imposed by the `autumnal justices’ were still heavy, and perhaps felt heavier still because the offences for which they were imposed commonly merited much lighter penalties.  Braybrooke’s alleged offence, like that of many, was defined only as `trespass’, a vague term which was indeed sometimes used to justify a heavy penalty – in 1206, for instance, `trespass’ cost the town of Ipswich 100 marks before the king himself74 – but more often implied only a minor transgression. 

Responses to oppression

The justices’ record of the financial issues of the 1202 Lincolnshire eyre shows that `trespass’ was commonly the term employed to describe the peccadilloes of local officials, whose shortcomings in failing to hold an inquest, producing the first finder of a corpse, failing to have a view made of disputed property, or arranging without permission a settlement between a woman and the man she had accused of raping her, usually cost them 6s. 8d. or 13s. 4d. each.  The same was the case when `trespass’ was applied to offences by communities or private individuals.  It was the transgression of two men who admitted conniving at the shaving of a prisoner’s head so that he could enjoy benefit of clergy (it cost one of them two marks and the other 6s. 8d.), and of a tithing which had buried a corpse before it had been viewed by a coroner or serjeant – it had to pay £2.75  The exception to this rule was Walter of Beelsby, seemingly the serjeant of a wapentake whose `trespass’ cost him fifty marks, after he had been twice put in mercy for different offences (it was in fact the first of these – failing to prosecute – which was entered on the pipe roll).76  The justices probably felt that his misdeeds were serious enough to call for severe punishment, and also that he could afford to pay a larger than average sum.  

Even after his initial amercement had been cut by forty percent, Henry of Braybrooke’s remaining debt of 300 marks thus constituted a much heavier penalty than anything usually imposed for `trespass’, and the same was true of most of the amercements imposed by the `autumnal justices’.  These certainly had their place in John’s efforts to maximise his revenues, but they were probably not only intended to raise money.  Rather they represented the intensification of a campaign of exploitation and control, undertaken at a time when John’s domination of the whole of the British Isles was approaching its peak   They were not aimed at the highest echelons of English society, whose members had for years been exposed to John’s exactions through the fines demanded of them for succession to their inheritances, marriages, wardships and the like, but rather at a level of society which the king may well have felt had hitherto been insufficiently exploited. 

The men singled out for amercement in 1210, it may be suggested, were those whom Bracton shortly afterwards referred to as buzones, defined as `the greater men of the country ... on whose nod the views of the others depend ...’.77  Such men had indeed contributed indirectly to scutages and directly to taxes like the thirteenth of 1207, and they had been repeatedly hit by the demands of the king’s justices, but the amercements usually imposed by the latter were seldom substantial.  In what is now TNA, JUST 1/1039, for instance, the record of proceedings in Yorkshire in four separate sessions between 1202 and 1208, the lowest amercement was 6s. 8d., but the highest on an individual was only 40s. (the township of Richmond had to find 100s. for failing to prosecute a homicide properly).78  In a few cases, moreover, amercements were pardoned altogether because of an offender’s poverty.  By the time John’s affairs approached their crisis, it may be surmised, he had come to see such visitations as representing a missed opportunity, financially.  But it was typical of John that he should also have tried to make political capital out of his own demands, by softening the blow somewhat for those he regarded as his friends, or perhaps by reminding those affected of the benefits which might result from his friendship for those who enjoyed it (and of course of the disadvantages which followed for those who did not). 

If such was the king’s policy, it cannot often be shown to have had the desired effect – it is far more likely to have angered those who were hit by severe amercements for ill-defined offences, while those who were still obliged to pay half or two thirds of considerable sums are unlikely to have felt particularly grateful for not being required to pay even more.  In the case of William de Perci (100 marks), the king’s ability to intervene on William’s behalf in a family property dispute was probably sufficient to retain his allegiance,79 while in 1217 it could be said of the Gloucestershire landowner Adam FitzNigel (thirty marks) that he `is and was faithfully and constantly in our fealty and service’,80 but among those whose loyalties can be traced such men were unusual.  In Northumberland, for example, John Vicecomes (sixty marks) and William Maulovel (thirty marks) both rebelled,81 as did Simon of Driby in Lincolnshire (£100, half of it pardoned),82 Walter de Abernun in Surrey (100 marks),83 Richard of Stitchcombe in Wiltshire (fifty marks, thirty of them pardoned),84 Robert le Crevequor in Kent (100marks),85 and Wymar of Bassingbourn in Cambridgeshire (100 marks, sixty of them pardoned).86  Among those already mentioned, Fulk Bainard, William de Montagu, Richard Engaine, Alexander of Pointon, Robert le Vavasur, Alan of Wilton, Joscelin of Walpole and Thomas of Astley all joined the king’s adversaries, as did Henry of Braybrooke, who had joined their ranks by November 1215.87 

Persistence and resistance

By 1215 men like Braybrooke had been subjected to still further demands by the king and his justices.  The visitation by the `autumnal justices’ was followed later in 1210 by a circuit akin to a conventional eyre headed by Richard Marsh, one of John’s leading councillors, and this was itself then followed up, probably in 1211, by sessions held by other justices who amerced at least some of the men convicted either before Marsh and his associates or in the court coram rege which had continued to sit after the common bench was closed in 1209.  The amercements imposed in these subsidiary sessions were mostly small, and many of them were accounted for by sheriffs in often modest lump sums – just £24 from Bedfordshire and Buckinghamshire, for instance, and £58. 6s. 8d. from Nottinghamshire and Derbyshire,88 though as usual Yorkshire was hit harder, with the sheriff accounting for a total of £500. 6s. 8d. from what may have been three separate visitations.89  But there were also some large individual amercements.  In Lincolnshire, for example, Nicholas of Shelton owed £100, and four men were amerced of 100 marks apiece, while others were expected to pay sums ranging from fifty to eighty marks; each was recorded simply as accounting for an amercement – de misericordia – without any indication being given of their offence.90  Similarly in Buckinghamshire and Bedfordshire, Fulk of Hyde was amerced of 120 marks and Nigel of Caldecote of 100, while five more men were amerced of sums ranging from fifty to eighty marks, again with no reason being given.91 

In one case from 1211, however, the justification for fiscal punishment was made clearer (if still not ideally precise), when forty-eight Kentishmen were amerced `on account of the impress of the king’s seal’ (propter impressionem sigilli regis).92  Presumably some kind of falsification was involved, in what was undoubtedly a serious matter – forging the royal seal was a form of treason, and merited the severest penalties.  The amercements imposed came to 1150 marks (£766 13s. 4d.), a round sum which suggests that this was the initial punishment imposed either on the whole county or on a community within it, and then divided up between the people involved.  The divisions were anything but equal, however.  Two men – Reginald of Luddesdown and Geoffrey de la Dene – had to pay 300 marks each, but the next largest amercement was of only forty marks (in three cases).  Another three men had to find thirty marks apiece, while the remaining forty were amerced of sums between twenty marks and 26s. 8d.  A large proportion of the entire sum had been paid by Michaelmas 1214.  The pipe roll contains nothing to suggest how the division of this amercement was made, or by whom, but the king’s (unnamed) justices must have been closely involved, and if they took advice from local men it may well have been concerning the means of those involved in the offence against the king’s seal, rather than their relative culpability  It is undeniably possible that Luddesdown and Dene were regarded as the ringleaders in some enterprise of falsification, obliged to pay large sums to save their lives, but it seems just as likely that they were targeted because they were the richest among those concerned in the transgression – Luddesdown was lord of the manor of Great Buckland, near Rochester,93 while Dene was another former employee of Reginald of Cornhill, and as such wealthy enough a year earlier to proffer 700 marks for the king’s good will.94 

The evidence for the years immediately before Magna Carta is less than ideally full – the pipe roll for 1213 is lost – but it seems clear that although John showed himself to be intermittently aware of the resentment his financial demands was arousing, heavy amercements continued to be imposed.  Perhaps inevitably, Yorkshire was the county hardest hit.  A case heard in the court coram rege concerning an appeal of theft which led to a duel being waged in Yorkshire county court resulted in amercements totalling £361. 13s. 4d. being imposed on the knights who held the plea in the sheriff’s absence; two men were amerced of £100 each.95  They may well have mishandled the case, but the penalties seem unduly large.  Among those required to pay smaller sums were Alan of Wilton (fifty marks) and Robert le Vavasur (twenty marks), who had been amerced by the `autumnal justices’ in the previous year.  In the same year the communities of Yorkshire were penalised by a forest eyre.  The whole county had to pay £200 `for trespass’, as did the city of York and town of Beverley (the latter was pardoned).  Scarborough was amerced of £100, but pardoned fifty marks, but there was no pardon for Ainsty wapentake (200 marks), the soke of Snaith (£100) or Doncaster (£40).96  Forest eyres in other counties do not appear to have resulted in individuals and communities being subjected to large fines and amercements, but the sums accounted for by some sheriffs - £358. 17s. 6d. from the relatively poor county of Cumberland,97 for instance - show that these visitations must still have been cumulatively burdensome.  By 1214 the exchequer’s fiscal apparatus was beginning to break down, but it could still record amercements imposed by the justiciar, Peter des Roches, in Sussex, which included one of £200 levied upon James FitzAlard (seemingly a leading burgess of Winchelsea) `for a false claim’98 – a substantial penalty for a commonplace offence.

Amercements, it has been said, constituted `the oppressive side of Angevin government’.99  They were always potentially burdensome, the more so because they were arbitrary in imposition and unpredictable in scale, and particularly when they arose from offences against the forest laws.  They began to seem insupportable, ultimately to the extent of giving rise to political resistance, when in around 1210 they started to take the shape of heavy exactions upon the well-to-do men of the shires, apparently targeted for what they were rather than for anything they had actually done.  The fact that little or nothing can be said of a number of the men upon whom the amercements of the `autumnal justices’ impinged, is perhaps a measure of the extent to which wealthy and influential families could put down roots in the shires, while remaining largely unconnected to and unaffected by the workings of the king’s government.  John’s desperate need for money may have made him anxious to exploit the resources of this level of society, but it was a reckless venture on his part, and one which risked, and eventually entailed, severe repercussions for his style of government. 

The justices of 1210 may have been local men, but as effectively royal agents they were not at all what the barons and their followers had in mind in 1215 when they demanded assessment of amercements by `trustworthy men of the vicinity’.  In the context of Magna Carta, `trustworthy’ was a loaded word, voicing the determination of the rebels to keep the king’s officers at arm’s length in the localities, while giving freer play to local and regional outlooks and responses.  Clause 20 was to apply to all the king’s subjects, free and unfree.  The very fact that the magnates found it necessary to insert a separate clause (no. 21) demanding special treatment, in the form of assessment by their peers, when they became liable to amercement, is one of the clearest signs of the pressure from levels of society below the ranks of the baronage which contributed to the formulation of Magna Carta.  And it also aspired to affect the whole of the king’s realm, making no exception for the royal forests, though this ultimately proved to be unachievable, and when a separate charter for the forests was drafted in 1217, the very severe penalties associated with the law of the forest were largely reinstated in it.100  But although the expectation that assessment by friends and neighbours would usually have the effect of keeping amercements down, and so of preventing the heavy exactions which John was taking in the years before 1215, was implicit in Clause 20, to outward appearances it left the king’s right to impose fiscal penalties intact.  The underlying purpose of the clause, it may be surmised, was to rebalance relationships between the king, his officials and his justices on the one hand, and the localities on the other, in favour of the latter.  When circumstances warranted, the crown could still, in theory (and occasionally in practice), exact large sums by way of amercements, but its need to act with local agreement severely restricted its ability to do so by employing what under King John had been effectively force majeure.

1

W. Stubbs (ed.), Select charters to the reign of Edward the first, 9th edn., ed. H.W.C. Davis (Oxford, 1913), 119.

2

J.C. Holt, Magna Carta and medieval government (1985), 252.

3

I have followed the analysis of J.P. Collas (ed.), Year books of Edward II xxv: 12 Edward II, part of Easter, and Trinity, 1319, Selden Society 81 (1964), xxii-xxxiii, drawn to my attention by Paul Brand.

4

L.J. Downer (ed. and trans.), Leges Henrici Primi (Oxford, 1972), 116-19.

5

E. Amt and S.D. Church (eds. And trans.), Dialogus de Scaccario (Oxford, 2007), 168-9.

6

Details from J.A. Green (ed. and trans.), The great roll of the pipe for the thirty-first year of the reign of King Henry I, Michaelmas 1130, Pipe Roll Society new series 57 (2012).

7

R.C. Van Caenegem (ed. and trans.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), ii, 441.

8

T. Madox, The history and antiquities of the excheqier, 2 vols. (2nd edn., 1769), i, 553 and note (x).

9

Ib., i, 559 and note (p).

10

Ib., i, 544 and note (m).

11

Ib., i, 552 and note (p).

12

Ib., i, 564 and note (a).

13

PR 6 Richard I (1194), 82.

14

PR 22 Henry II (1176), 119.

15

Ib., 112-16, 193.

16

PR 14 Henry II (1168), 141.  The amercement is first recorded, but without details, PR 12 Henry II (1166), 97; its final payment is entered PR 18 Henry II (1172), 73.

17

R.H. Helmholz, `Magna Carta and the ius commune’, University of Chicago Law Review 66 (1999), 297-371, at 327-9.

18

J. Hudson, `Magna Carta, the ius commune, and English common law’, J.S. Loengard (ed.), Magna Carta and the England of King John (Woodbridge, 2003), 99-119, at 106-7.

19

G.D.G. Hall (ed. and trans.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd. edn., Oxford, 1993), 112, 114.

20

Dialogus de Scaccario, 116-17.

21

Ib.., 164-7.

22

For a discussion of the word see J. Tait, `Studies in Magna Carta I; waynagium and contenementum’, English Historical Review 27 (1912), 720-8.

23

T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837), 51.

24

Holt, Magna Carta and medieval government, 199-200.

25

J.C. Holt, Magna Carta (2nd. edn., Cambridge, 1992), 58, 332-3.

26

W. de G. Birch, The historical charters and constitutional documents of the city of London (2nd. edn., 1887), 3-6.

27

PR 31 Henry II (1185), 222.

28

C. Brooke and G. Keir, London 800-1216: the shaping of a city (1975), 220-1.

29

Van Caenegem, English lawsuits, ii, 693.

30

e.g. Curia Regis Rolls ii, 1201-1203 (1925), 295; Curia Regis Rolls vi, 1210-1212 (1932), 220, 382.

31

G.F. Warner (ed.), Giraldi Cambrensis opera viii: De principis instructione liber (Rolls Series, 1891), 316.

32

PR 10 John (1208), 155.

33

PR 10 Richard I (1198), 92-3.

34

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835), 134; Curia Regis Rolls i, Temp. Rich. I-1201 (1922), 426.

35

Rotuli de Oblatis et Finibus, 215.

36

PR 26 Henry II (1180), 7.

37

Details from PR 5 John (1203), 216-22.

38

PR 9 John (1207), 62.

39

PR 8 John (1206), 209.

40

PR 7 John (1205), 60-1.

41

Dialogus de Scaccario, 90-1

42

Rotuli de Oblatis et Finibus, 365; PR 8 John (1206), 73.

43

PR 10 John (1208), 156-7.

44

PR 4 John (1202), 157.

45

PR 5 John (1203), 233.

46

PR 8 John (1206), 32.

47

Details from PR 11 John (1209), 122-3

48

Ib., 76-7.

49

PR 13 John (1211), xxxv-xxxvj.

50

Details from PR 12 John (1210), xv-xvj.

51

PR 12 John (1210), 37; I.J. Sanders, English baronies: a study of their origins and descent, 1066-1327 (Oxford, 1960), 42.

52

PR 12 John (1210), 58; The book of fees commonly called Testa de Nevill, 2 vols. in 3 (1920-31), i, 80, 81, 84, 86; Sanders, English baronies, 34.

53

PR 12 John (1210), 38; Book of fees i, 9, 18; Sanders, English baronies, 23.

54

PR 12 John (1210), 181; T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus.), 43..

55

PR 12 John (1210), 34; D. Crook, Records of the general eyre, Public Record Office handbooks 20 (1982), 68.

56

PR 12 John (1210), 37; Crook, Records of the general eyre, 64-8.

57

PR 12 John (1210), 39, 162-3.

58

Rotuli Chartarum, 178-9.

59

PR 12 John (1210), 120.

60

Ib., 36; Curia Regis Rolls vi, 194, 345.

61

PR 12 John (1210), 120; Curia Regis Rolls vi, 193, 271.

62

PR 12 John (1210), 40-1; Curia Regis Rolls vi, 112, 114-15.

63

PR 12 John (1210), 34; Rot.Lit.Claus., 165; Curia Regis Rolls v, 1207-1209 (1931), 37, 131, 214.

64

PR 12 John (1210), 58; Book of fees i, 96.

65

PR 12 John (1210), 106; Book of fees i, 102.

66

PR 12 John (1210), 7; Book of fees i, 24.

67

PR 12 John (1210), 35; Book of fees i, 629-31.

68

PR 12 John (1210), 34; B. Dodwell (ed.), Feet of fines for Norfolk, 1201-1215, and for Suffolk, 1199-1214, Pipe Roll Society new series 32 (1958 for 1956), nos. 370, 488, 526.

69

PR 12 John (1210), 34; Book of fees i, 576.

70

PR 12 John (1210), 99; Book of fees i, 508.

71

Book of fees i, 474.

72

PR 12 John (1210), 34-5.

73

Ib., 213.

74

PR 8 John (1206), 32.

75

Details from D.M. Stenton (ed.), The earliest Lincolnshire assize rolls, A.D. 1202-1209, Lincoln Record Society 22 (1926 for 1924)

76

PR 4 John (1202), 235; Earliest Lincolnshire assize rolls, nos. 818, 848, 1055.

77

S.E.Thorne (ed. and trans.), Bracton on the laws and customs of England ii (Cambridge, Massachusetts, 1968), 327 (f. 115b).

78

Details from C.T. Clay (ed. and trans.), Three Yorkshire assize rolls for the reigns of King John and King Henry III, Yorkshire Archaeological Society, Record Series 44 (1911 for 1910), 1-42.

79

PR 12 John (1210), 41; Rot.Lit.Claus., 250, 308; J.C. Holt, The Northerners: a study in the reign of King John (Oxford, 1961), 21, 67.

80

PR 12 John (1210), 97; Rot.Lit.Claus., 313.

81

PR 12 John (1210), 37; Rot.Lit.Claus., 289, 374.

82

PR 12 John (1210), 37; Rot.Lit.Claus., 309, 376.

83

PR 12 John (1210), 39; Rot.Lit.Claus., 270.

84

PR 12 John (1210), 88; Rot.Lit.Claus., 307.

85

PR 12 John (1210), 120; Rot.Lit.Claus., 232.

86

PR 12 John (1210), 38; Rot.Lit.Claus., 238.

87

Rot.Lit.Claus. 238.

88

PR 13 John (1211), 143, 216-17.

89

Ib., 28-9, 56-7.

90

Ib., 2-3.

91

Ib., 144-5.

92

Ib., 240-2.

93

E. Hasted, The history and topographical survey of the county of Kent, 12 vols. (2nd. edn., Canterbury, 1797-1801), iii, 367-74.

94

PR 12 John (1210), 120.

95

PR 14 John (1212), 38; Curia Regis Rolls vi, 214-15, 216.

96

PR 14 John (1212), 38-9.

97

Ib., 156.

98

PR 16 John (1214), 165-6; Curia Regis Rolls vi, 53, 90-1

99

W.L. Warren, The governance of Norman and Angevin England, 1066-1327 (1987), 159.

100

H. Rothwell (ed.), English Historical Documents iii: 1189-1327 (1975), 339 (clause 10).

Referenced in

Clause 60 (The 1215 Magna Carta)

John grants freedom of election (The Itinerary of King John)


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Original Latin

XXI

Comites et barones non amercientur nisi per pares suos, et non nisi secundum modum delicti.

21

Earls and barons are not to be amerced except by their peers, and not except in proportion to the nature of the offence.

Audio commentary

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Commentary for academic researchers

Context and deflinitions

Clause 21 had no counterpart among the Articles of the Barons.  In Magna Carta it was a follow-up to Clause 20, in which the latter’s basic principles, that people who were amerced – in modern parlance, fined – before the king or his justices should be penalised only in proportion to their offences and to their ability to pay, and that the sums levied should be assessed by their neighbours, were extended beyond the free men, merchants and villeins protected by that clause to a limited social stratum, that of earls and barons.  Clause 21 retained its predecessor’s stress on proportionality, but made no mention of the means of those affected, which may have seemed irrelevant, given that the clause affected many of the wealthiest people in the kingdom, while the assessors were defined in terms of social rather than geographical affinity – a transgressor’s peers, not his neighbours, were to rule upon the seriousness of his offence and upon the appropriate penalty for it.  It was not in fact new for barons, whether lay or ecclesiastical, who found themselves in the king’s mercy to be treated differently from the rest of the king’s subjects, but hitherto the penalties for their misdoings had been decided upon at Westminster, in the exchequer or by the king himself.1  Magnates who were dissatisfied with their treatment there, but were unwilling to entrust their fortunes to decisions made by their social inferiors, now looked to one another for remedy instead.

Clause 21 spoke not of a peerage but of the peers of earls and barons.  In the years around 1200 neither were defined with complete consistency; men could be referred to as earls who had no formal right to such a title,2 and comital styles were far from settled – William Marshal, for instance, was variously described as earl of Striguil and of Pembroke and simply `Earl William Marshal’ - while the number of potential barons was certainly greater than was the case a century later.  Among ecclesiastical barons, there could be no doubt as to the right of the bishops, and probably the major abbots, to be regarded as such, but it is not clear how many heads of lesser houses could claim similar status.  As for the laity, I.J. Sanders, basing his conclusions on the baronial reliefs – the sums paid for the right to inherit baronies – recorded in thirteenth-century sources, plausibly identified over 200 estates which could be defined as baronies, or probable baronies, so that those who held them, or fractions of them, were entitled to call themselves barons, and to enjoy the status accompanying that rank.3 

The term `baron’ as it was used in the Articles and in Magna Carta usually implied a magnate, one of the great men of the realm owing his power to his landed holdings and to the following he could command.  It was a word with a long history, beginning at a low social level where it could be applied to a lout, or even a slave, or used to mean no more than `man’ (a meaning it long retained when used of the husband of a wife).4  Subjected to constant redefinition, the word `baron’ gradually acquired connotations of martial valour and moral worth, which either arose from or contributed to its being increasingly used to describe a vassal,5 and by extension from that, a vassal of standing in the eyes of his lord, who was often, but not necessarily, the king.  In the early twelfth century the Leges Henrici Primi could refer to `barons of the king or of other lords’,6 and the leading tenants of tenant-in-chief could still be referred to as `barons’ in the early thirteenth century.7  Moreover, the principal men who served the king in the exchequer were also styled barons, and so were the citizens of London and the Cinque Ports.  

But although exceptions long persisted, by 1215 a baron was most often a member of the social élite who was ranked after an earl, although the fact that earls were also barons made it possible for chroniclers, or indeed Magna Carta itself, to use the plural `barons’ to mean the whole magnate class, earls and barons together.  It was in this sense that the Unknown Charter and the Articles were both presented as containing the demands of the barons.  The very first clause of Magna Carta refers to `the quarrel between us and our barons’, and the same phrase is used in the security clause intended to secure its implementation.  Elsewhere in the Charter, however, the word `baron’ was used only occasionally (on the whole the interests upheld are those of `free men’), and not entirely consistently.  Clause 2, limiting the reliefs which the king could demand for succession to inheritances, defined those which could be levied upon earls, barons (this clause is the yardstick for Sanders’ identifications) and other tenants-in-chief, but the apparent homogeneity of a baronage as a social layer was then undermined by Clause 14, prescribing that when the king took the common counsel of the realm before levying aids or scutages, individual summonses were to be sent to `archbishops, bishops, abbots, earls and greater barons (majores barones)’, while the rest, comprising all the tenants-in-chief, were to be summoned `generally’, through the king’s sheriffs and bailiffs.  The distinction in this case may have reflected an ambiguity in the term `baron’ which was apparently still being resolved – indeed, Magna Carta helped to resolve it – in that, as far as the king’s dealings with his leading subjects were concerned, the word had until very recently been a term applicable to any tenant-in-chief, not just to an important one, so recently that in 1215 it was still necessary to make a distinction between them.

The `baronial’ tenant-in-chief

The name Cartae Baronum, given to the returns to the inquiries into knight service made in 1166, which were demanded from every tenant-in-chief, however large or small his estate, show that `baron’ was then regarded as synonymous with tenant-in-chief.  That this might still have been the case in the early thirteenth century is suggested by lists drawn up for exchequer use in 1208/9 of `tenants-in-chief of the lord king in barony’ in Bedfordshire and Buckinghamshire and in Northamptonshire8 – they were mostly made up of men who could be regarded as barons according to Sanders’ criteria, but also included lesser men; in Northamptonshire, for instance, Luke Basset, who may have been connected to a notable baronial family but does not appear in its lineage, Eustace of Watford and Simon of Lyndon, who held one fee each, and Walter of Preston, who had one and a half fees and may have been the sheriff who made the return, stood alongside four earls, a countess, six abbots, and local magnates like Wischard Ledet and Robert of Pinkney, who both held what became established baronies within the county.  There were lordships, too, which might be referred to as baronies, no doubt because they were held in chief of the crown, since they never had any official status as such.  In 1194, for instance, Brian FitzRalph was recorded as owing 100 marks `for having right concerning the barony of Petworth and the fifteen knights’ fees pertaining to the said barony’.9  Petworth was clearly an important honour, but it was not recorded elsewhere as a barony, and the same was true of such `baronies’ as Haselborough in Somerset, `Wrethamtorp’ (part of West Wretham) in Suffolk, and Bingham in Nottinghamshire.10 

A different criterion for baronial status, but one which also suggests a wider application of the term than allowed for by Sanders, is provided by the procedure of the exchequer.  By the time that the Dialogus de Scaccario was composed, no later than the end of Henry II’s reign, it was usual for barons to be represented by their stewards when they accounted for their debts to the crown,11 and although the Statute of Windsor, issued early in John’s reign, tightened up the rules governing this practice it made no effort to abolish it.12  Exchequer memoranda rolls from King John’s first and tenth regnal years (1199-1200 and 1207-8 respectively) record the names of many `barons’ availing themselves of this privilege,13 and although the majority held lordships defined as baronies by Sanders, a significant number did not.  Some of these men were royal servants, who may have been allowed to attend by proxy because they were engaged on the king’s business.  Thus William de Humez was constable of Normandy,14 Andrew de Beauchamp was sent on a number of missions to Poitou,15 and William de Cresec was intermittently employed as a diplomat.16  Thomas Bloet was numbered among the king’s valetti,17 and William de Harcourt rose rapidly in John’s service during the later years of the reign, serving as a castellan and sheriff and also as a royal steward.18  Thomas of Galloway, who was a Scot, may have been something of an honorary baron – the brother of the lord of Galloway and from 1210 earl of Athol, he had entered King John’s service with a fleet of galleys, and received grants of lands and also (for a proffer of 1000 marks) the wardship of the barony of Richard’s Castle.19  Reginald Basset had connections to an important and widely-ramified family,20 Roger la Zouche to one in the process of rising to eminence.21  Other men were related to leading figures in government; Robert Bardolf was the brother and heir of Hugh Bardolf, a leading judge,22 while William of Buckland was the half-brother of the justiciar, Geoffrey FitzPeter.23  Men like Guy Lestrange of Knockin and Fulk FitzWarin of Whittington were lords of estates that can have fallen only just short of baronial status.  In fact all the `barons’ represented by stewards were significant landowners, whatever their origins and occupations, and as far as the evidence makes it possible to tell, they were all tenants-in-chief, usually by knight tenure, occasionally by serjeanty – Robert of Sutton held Bowers Giffard in Essex by the service of scalding the king’s pigs24 – or, in the case of religious houses, when they owed spiritual services only.  The abbots of Cirencester, Selby, Whitby and Tewkesbury, and the prior of Lenton, none of whom owed knight-service, were all represented by their stewards in the exchequer.

Agencies of assessment: the exchequer and the king

It was noted at the outset that it was well-established practice for amercements upon barons, however the latter were defined, to be imposed at Westminster.  Justices itinerant returning particulars of the issues of their eyres would leave blanks against the relevant names, so that the sums to be levied could be entered in the exchequer.  But here again the men identified as barons seem as likely to have been tenants-in-chief as holders of estates later regarded as constituting baronies.  In 1203 the justices of the bench put Henry de Bollei, or Bodlai, in mercy following the failure of his action of novel disseisin, and noted against his name that `Henry is the king’s baron; he is to be amerced at the exchequer ...’;25 Henry was probably the kinsman of a namesake who until his death in 1187 had held the Hampshire manor of Meonstoke, where the disputed property lay, and appears to have been farming it from the crown,26 but there is no evidence either that he was in any technical sense a baron, or that Meonstoke constituted a barony.  Nor, in the end, did he incur any recorded penalty (though this may have been because when Normandy was lost in 1204 Henry threw in his lot with the king’s enemies and was thereafter beyond John’s reach).27

At the 1198 Hertfordshire eyre the justices directed that both Gerard de Furnival and Reginald de Argentein were to be amerced at the exchequer for disseisin, showing that in the eyes of the king’s justices both men were barons.28  Since neither held recorded baronies, these men, too, must have been ranked thus because they were tenants-in-chief, Furnival by knight service (he was a powerful landowner, though predominantly in the north of England),29 Argentein because he held the manor of Great Wymondley by the serjeanty of serving with a silver cup at the coronation.30  Argentein’s offence cost him twenty marks,31 but Furnival is not recorded as paying anything, and the same is true of Gilbert de Gant – as lord of Folkingham in Lincolnshire indisputably a baron – whose amercement in 1202 for disseisin was referred `to London’.  His associate in his offence, who could be dealt with immediately, was amerced of £5.32 

Referral of an amercement to Westminster had the additional advantage of giving opportunities for discussion of a case, if an important person was involved, or for negotiations between the baron concerned and the king or his representatives.  At the 1202 Northamptonshire eyre, the abbot of Peterborough and the earl of Clare, or Hertford, the one an ecclesiastical and the other a secular baron, were both put in mercy for allowing markets held on their lands, at Oundle and Rothwell respectively, to take place on the wrong days, and `amercement at Westminster’ was entered against both their names.33  As a result the abbot had to pay twenty marks,34 but the earl chose to regularise his position by obtaining a royal charter licensing him to transfer his weekly market from Sunday to Monday, and granting him a yearly fair as well.  He paid five marks for his charter, but nothing, as recorded, for his offence – he may well have been expected, or encouraged, to make the one payment as a substitute for the other.35 

Such cases hardly suggest that referring an amercement to the exchequer necessarily resulted in an exorbitant demand being made on a baronial offender – none of the sums mentioned above was especially large - and the same could be true of amercements assessed by the king in person.  In 1206 Robert de Grelley, lord of Manchester, was amerced of £40 for a disseisin `by the king (per Regem)’, but half of that was pardoned.36 In 1203 John had intervened to pardon altogether the amercement imposed for a dissseisin, but not yet assessed (nondum est afforandus), on the Northumberland baron Eustace de Vesci,37 while three years later he dealt leniently with the Oxfordshire tenant-in-chief Alan FitzRoland, who had been convicted of disseisin in the bench, and of whom the justices duly noted that `he is to be amerced before the king’.38  Lord of the manor of Aston (now Aston Rowant), which he held of the crown as a tenant of its honour of Wallingford by the service of half a knight’s fee,39 Alan was not a man of Vesci’s consequence, and probably because he was not thought worth conciliating he was not permitted to escape all punishment.  Even so, his amercement of £5 hardly constituted an inordinate penalty.40

Amercements and penal fines

This was not always the case, however.  In the early years of Henry II’s reign some very heavy amercements were imposed on men of baronial rank.  In 1165, for instance, the abbot of Bury St Edmunds was recorded as owing 200 marks, the bishops of Lincoln and Winchester 400 marks each, and Hugh Mortimer, lord of Wigmore, 500 marks, all simply for amercements (de misericordia).41  Under Richard I, too, heavy penalties were imposed on men who had supported Count John against the king in 1193/4.  Gerard de Canville had to pay 2000 marks to recover his lands and the king’s good will,42 and though this was exceptional, reflecting Canville’s prominence in the rebellion, five of John’s partisans in Dorset and Somerset had to find between 100 and 400 marks apiece,43 while payments of £100 or 100 marks were recorded in several other counties.44  As time passed the king’s principal subjects became increasingly likely to find themselves heavily in debt to the king through making negotiated fines with him, rather than by having to pay him unilaterally imposed amercements, but the latter continued to be imposed, on both earls and barons.  In 1205 Ranulf, earl of Chester, was amerced of £100 for disseisin,45 two years later Eustace de Vesci’s failure in a lawsuit over a wardship cost him 200 marks,46 and in 1214 Aubrey de Vere, earl of Oxford, proffered £100 to clear himself of forest offences.47  In the event, Vesci’s amercement was pardoned (as was nearly half of Ranulf’s), and the same was true of the £100 charged against William Malet `because he took a stag in Taunton park’ and of the 200 marks owed by John of Monmouth `for unjust deforcement’, both in 1210.48  Amercements could be used as political instruments, imposed to remind those subjected to them of the advisability of keeping on the right side of King John, or perhaps simply of his power, and then pardoned if and when those subjected to them showed that they appreciated this.  In 1210 the countess of Warwick was recorded as owing £100 `for a false claim’.  In 1212 a note was added to the relevant entry that the debt was not to be summoned `until the king orders otherwise’49 – an unsubtle way of ensuring that the countess did as John wished, perhaps by remaining unmarried.     

It is not in fact always possible to distinguish amercements clearly from fines, the more so because some fines, which were agreed to by their victims in order to recover the king’s good will, or to avert his anger, were manifestly penal in intent.  When, for instance, Hugh Malebisse, an important landowner in Yorkshire and Lincolnshire, agreed to pay 200 marks and two palfreys in 1205 `for having seisin of his lands, of which he was disseised on the lord king’s order, and that he may have his lawsuits and his pleas in the state in which they were before the lord king was angered against him ...’,50 or when in 1209 Thomas de St Valery, lord of the Oxfordshire barony of Beckley, proffered 1000 marks `for having the king’s benevolence and for having his lands of which he was disseised on that account ...’,51 the form may in each case have been that of a fine, but the simultaneous loss of the king’s good will and of their lands, regardless of what they had or had not done to merit such treatment, had clearly placed Hugh and Thomas not so much in as at the king’s mercy, leaving them in a very weak position to bargain with John. 

In some cases, indeed, fines arose directly from being in the king’s mercy – in 1207 Robert de Ros, lord of Helmsley, had to pay 300 marks `for his amercement’ for failing to produce in court a man appealed of homicide (though this, too, was pardoned),52 and Roger de Cressy, who in the same year fined by 1200 marks and twelve palfreys `for having the lord king’s benevolence and for having seisin of his own lands and the lands of Isabel his wife, of which he was disseised because he married Isabel, who was wife of Geoffrey of Chester ...’,53 was in effect punished for the serious infringement of royal rights, in marrying an heiress without the king’s consent, which had made him a baron (of Hockering in Norfolk) and in the process also exposed him to a direct expression of royal anger.  On other occasions administrative failings led to the imposition of what, along with those described above, may plausibly be described as `punitive fines’.  For Robert de Vieuxpont, lord of Westmorland and one of John’s leading agents, who seems to have found himself in trouble over arrears of revenue in 1208, 4000 marks were needed to secure royal grace for himself and his bailiffs; he paid 1000 marks into the king’s chamber, and was pardoned the rest.54  The loss of royal favour, while it lasted, and exposure to the consequences of royal displeasure, may in fact have had a greater impact on those affected than the payment needed to secure a return to favour.  In the same year Walter Clifford (lord of a barony variously defined as Clifford and Corfham) may well have been pleased, even relieved, to be able to pay 1000 marks `for having the king’s benevolence and for there being no inquest made into him and his exactions (prisis) in Herefordshire ...’ after he was replaced as sheriff of that county in 1208.55  It was a considerable sum, although people who had suffered at his hands probably thought he deserved a heavier punishment. 

The terms of Clifford’s fine at least make it clear that an offence had been committed, and the same is true of other baronial fines, the £100 owed by Richard de Lucy in 1209, for instance, `for the forest badly kept’,56 or the sixty marks and a palfrey which Duncan de Lasceles had to pay in 1210 to recover his lands, having been dispossessed for failing to answer the summons to the previous year’s Scottish campaign.57  But a number of fines were levied without any recorded justification except royal dissatisfaction.  Whether it was the Cumberland baron Robert de Vaux, owing 750 marks in 1210 `for having the king’s benevolence’,58 or the abbot of Basingwerk, Flintshire, for whose payment of £100, `for having the king’s benevolence and for having seisin of his lands and rents, taken into the king’s hand because of the malevolence which the king had against him’, Brian de Lisle accounted in 1211,59  no further explanation was apparently required for their indebtedness than John’s hostility.  In the case of Robert of Berkeley, lord of the Gloucestershire barony of Berkeley, who was recorded in 1212 as owing 2000 marks `for having his lands and his castle of which he was disseised because of the king’s benevolence’,60 it is unclear whether `benevolence’ was a mistake for `malevolence’, or whether the clerk meant to indicate that Robert no longer enjoyed the king’s benevolence, or even if that word was being used ironically, and in the end it hardly seems to matter – what is certain is that Robert, and others like him, had lost the king’s unpredictable good will, on unstated grounds, and had to pay heavily to recover it.

The barons of the exchequer and the emergence of a magnate class

It is easier to show that barons, however defined, came to be in the king’s mercy, whether explicitly through being amerced or through being required to pay punitive fines, than it is to show how, and by whom, the payments demanded of them were assessed.  But it seems likely that the same methods, and people, were involved whether the penalties were small or large, and that the exchequer, with the king always near at hand, was the principal agent of exaction.  In the Dialogue of the Exchequer, probably written between 1176 and 1189, the `student’ had observed of the `teacher’ whose answers to his questions make up the bulk of the text that `I see that you always take the king’s part in everything, within reason’,61 and the latter’s discourse did indeed place constant stress on the king’s advantage and the need to uphold it.  Thus the royalism of the exchequer was already powerful when it intensified under King John, making it to an exceptional extent `subservient to the king’s interests’,62 while its principal officials, its barons, were, as recorded, very largely the king’s men.63  A small number were obscure figures of whom little or nothing can be said.  At the other end of the social spectrum, a few were either earls – the earls of Chester, Salisbury, Arundel, Pembroke and Winchester were all recorded as acting as barons – or what might be called barons of the conventional sort – Robert Mauduit of Hanslope, William de Warenne of Wormegay, Robert FitzRoger of Whalton.  But most were essentially functionaries, men who had made their way to status and riches in the king’s service, often in more than one branch of the administration.  Thus Richard of Herriard and Simon of Pattishall were also justices, William of Wrotham64 was largely responsible for the organisation of the king’s fleet, while Hugh de Neville became positively notorious for his administration of the royal forests.  Richard Marsh was probably a financial expert, but many of his colleagues were essentially all-rounders, entrusted with, precisely because they were capable of handling, any kind of business.

A few, like Marsh and Wrotham, were of obscure, and probably humble, origins, but most were either of knightly, or at any rate landholding, rank, and several were sons or relatives of administrators like themselves.  William Brewer was the son of a royal forester, and Hugh de Neville’s grandfather, Alan de Neville, served Henry II in much the same capacity, and using much the same methods, as Hugh served King John.   William of Cornhill followed a number of his relations into the king’s service, while William of Ely was a kinsman of Richard FitzNigel, the author of the Dialogus de Scaccario.  Gerard de Camville had served John before he became king, others served John as they had previously served his predecessors.  Such men were hardly on the same footing as the detested Poitevins, who could be referred to in terms used to describe serfs, or even farm animals.  In the end the strains of competing loyalties, whether ecclesiastical or secular, drove some of them into opposition to the king, but even in 1215 it could hardly have been expected that men like William of Wrotham, Geoffrey of Buckland, and even Hugh de Neville would join John’s adversaries, and what the latter probably most objected to was the loyalty, even subservience, of the barons of the exchequer to the king, and their willingness to support and implement his policies. 

This does not, however, rule out the likelihood that behind Clause 21 there also lay emerging considerations of status which caused its creators to see themselves as members of a social elite and to desire special treatment for themselves accordingly.65  Such a development can be seen, for instance, in the regulations of 1194 whereby Richard I licensed participation in tournaments at rates which varied according to the social rank of the men involved.  Earls were to pay twenty marks each, barons ten marks, knights `possessing land’ four marks, and landless knights just two marks.66  Clearly there was coming to be some distinction of status besides the ownership of estates which separated barons from knights, and this is also suggested by the aspirations of Geoffrey Wake, who appeared among the so-called barons who appeared by proxy in the exchequer in 1207/8.  Until recently Wake had been only the mesne lord, under Hubert de Burgh, of the Wiltshire manor of Ebbesborne (now Ebbesborne Wake).67  In June 1207, however, when Hubert was a prisoner in France, not only did Geoffrey pay 200 marks for the succession to the lands of his brother Simon, which included Ebbesborne,68 but he also obtained a charter from the king in which John took him under his protection as `our demesne baron’ (dominicum baronem nostrum), a status which his heirs were to inherit, and directed that Ebbesborne should henceforth be held in chief of the crown, in perpetuity, by the service of one knight’s fee.69  When Geoffrey Wake answered at the exchequer a year later by his steward, he may well have done so because he was now regarded as a `baron’ by virtue of his having become a tenant-in-chief, but it is hard to believe, in the light of the hereditary status conferred on him by John’s charter, that this was the limit of his ambitions, even though these seem to have come to nothing, whatever exactly they were - Hubert de Burgh soon recovered the overlordship of Ebbesborne and held it for several years, and although from 1222 the manor was once more held in chief of the crown, it never became a barony. 

The terms of Wake’s charter, like Richard I’s tournament regulations, attest a growing feeling that there could be more to being a baron than holding an estate directly from the king, and this seems to be confirmed by evidence concerning another of the `barons’ represented by proxy at the exchequer.  Ingram de Préaux, or Pratellis, was a tenant-in-chief in Wiltshire70 and held lands in other counties, including Shropshire.  But although he was included in a list of tenants-in-chief compiled in 1212 by the sheriff of the latter county, which named eight men as barons (along with two others who would have been so styled had their lands not then been in the king’s hand), Ingram was not among them; instead he was specifically, and presumably intentionally, defined as a knight.71  The Shropshire barons bore the names of powerful and long-established families like Mortimer, Pantulf, Corbet and Boterel.  Ingram de Préaux may have held an estate of the crown, but he was not regarded as sharing the eminence of Roger Mortimer and his peers, whose baronial rank, just three years before Magna Carta, came with a social cachet which transcended the status conferred by exchequer privileges.

It was probably for reasons of status, therefore, as well as because they hoped thereby to control the king’s demands upon themselves, that the earls and barons insisted that their amercements be assessed by their peers.  Indeed, if all they had wanted was to reduce the king’s exactions, they would almost certainly have been able to achieve that just as well by accepting the same treatment as other free men, while taking advantage of the power and prestige which almost everywhere gave them control of regional and local society.  Assessors who were their tenants or employees were unlikely to have acted against the interests of their lords, unless perhaps under very close supervision by agents of the king.  Clause 21 does not in fact say how the process of assessment by peers was to be conducted.  Its drafters may have envisaged the creation of panels of ad hoc assessors to deal with single cases, but it seems likelier that what they had in mind was either the temporary afforcement of the barons of the exchequer by magnates, or the temporary removal from the tribunal of such barons as were not magnates. 

Clause 21’s silence about its own enforcement had serious consequences.  For although the very possibility of the controls it prescribed might have constituted a bar to the more arbitrary exactions of a ruler like John, and especially to those imposed for no apparent reason, it was not in other respects necessarily entirely disadvantageous to the king.  It still allowed him to argue his case, in a tribunal which was peculiarly his, and upon whose members he could still hope to exert pressure, either because they were barons of the exchequer appointed by him, or because they were lords of baronies whose succession he was sometimes in a position to control.  And indeed, if the king ever truly lost control over the amercing of magnates he very soon recovered it.  The treatise De Legibus attributed to Bracton, mostly composed only some fifteen years after Magna Carta, cited Clause 21 almost verbatim, and added that amercements were to be assessed `by the barons of the exchequer or before the king himself’,72 suggesting a sleight of hand whereby the barons of the exchequer were themselves endowed with the same standing as earls and `ordinary’ barons.73  It is most unlikely that the drafters of the clause had anything like this in mind, but by their failure to stipulate how amercements were to be imposed they left the way open for it, with the result that although Clause 21 constituted an important step in the process whereby secular barons came to be defined as magnates, its beneficiaries would sometimes pay a high price for it.

1

L.W.V. Harcourt, `The amercement of barons by their peers’, English Historical Review 22 (1907), 732-40, at 735-6.

2

D. Crouch, The image of aristocracy in Britain, 1000-1300  (1992), 68-70.

3

I.J. Sanders, English baronies: a study of their origin and descent, 1086-1300 (1960).  I have relied on this book throughout for information about baronies, as conventionally understood, and their holders.

4

For definitions see R.E. Latham (ed.), The dictionary of medieval Latin i (1975), 183, and W. Rothwell (ed.), Anglo-Norman Dictionary i (2nd. edn., 2005), 290.

5

M. Bloch, Feudalism (trans. L.A. Manyon, 1961), 333.

6

L.J. Downer (ed. and trans.), Leges Henrici Primi (Oxford, 1972), 101.

7

F.M. Stenton, The first century of English feudalism, 1066-1166 (2nd. edn., Oxford, 1961), 84-114.

8

The book of fees commonly called Testa de Nevill, 3 vols. (1920-31), i, 17-22.

9

PR 6 Richard I (1194), 229.

10

Book of fees, i, 80, 128, 230.

11

E. Amt and S.D. Church (eds. and trans.), Dialogus de Scaccario (Oxford, 2007), 172-7.

12

W. Stubbs (ed.), Chronica Rogeri de Houedene iv (Rolls Series, 1871), 152.

13

Details from H.G. Richardson and others, The memoranda roll for the Michaelmas term of the first year of the reign of King John, 1199-1200, Pipe Roll Society new series 21 (1943), and R.A. Brown, The memoranda roll for the tenth year of the reign of King John, 1207-1208, Pipe Roll Society new series 31 (1957).

14

F.M. Powicke, The loss of Normandy, 1189-1204 (2nd edn., Manchester, 1961), 343.

15

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 46, 90, 102.

16

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus.), 130; T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 186.

17

Rot.Lit.Claus., 60.

18

Ib., 114, 141, 145; Rot.Lit.Pat., 108, 152.

19

Richard D. Oram, `Thomas [Thomas of Galloway], earl of Atholl (d. 1231)’, Oxford Dictionary of National Biography, http://www.oxforddnb.com/view/article49364, accessed 31 July 2013; PR 9 John (1207), 200.

20

W.T. Reedy (ed.), Basset charters, c. 1120-1250, Pipe Roll Society new series 50 (1995), xxxi.

21

H. Summerson (ed.), Crown pleas of the Devon eyre of 1238, Devon and Cornwall Record Society new series 28 (1985), no. 280 and note.

22

R.V. Turner, The English judiciary in the age of Glanvill and Bracton, c. 1176-1239 (Cambridge, 1985), 115-16 and note 37.

23

J.C. Holt, Colonial England, 1066-1215 (1997), 312-13.

24

Book of fees, i, 345.

25

Curia Regis Rolls ii, 1201-1203 (1925), 267 and note.

26

Victoria County History of Hampshire iii (1908), 254-7; PR 4 John (1202), 72.

27

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 317.

28

Sir F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols. (Record Commission, 1835), i, 154, 169, 170.

29

See J.C. Holt, The northerners: a study in the reign of King John (Oxford, 1961), 29.

30

Victoria County History of Hertfordshire iii (1912), 183.

31

PR 1 John (1199), 102.

32

D.M. Stenton (ed.), The earliest Lincolnshire assize rolls, A.D. 1202-1209, Lincoln Record Society 22 (1924 for 1922), nos. 173, 1082.

33

D.M. Stenton (ed.), The earliest Northamptonshire assize rolls, A.D. 1202 and 1203, Northamptonshire Record Society 5 (1930), nos. 11, 14.

34

PR 5 John (1203), 182.

35

Rot.Chart., 117; PR 6 John (1204), 138.

36

PR 8 John (1206), 72.

37

T.D. Hardy (ed.), Rotuli de liberate ac de misis et praestitis regnante Johanne (Record Commission, 1844), 58.

38

Curia Regis Rolls iv, 1205-1206 (1929), 132.

39

Victoria County History of Oxfordshire viii (1964), 20-1.

40

PR 9 John (1207), 189.

41

PR 11 Henry II (1165), 10, 37, 42.

42

PR 6 Richard I (1194), 118.

43

Ib., 190.

44

Ib., e.g. 36, 64, 94, 169, 193, 218.

45

PR 7 John (1205), 217-18.

46

Rot.Ob.Fin., 421; PR 9 John (1207), 74.

47

PR 16 John (1214), 8.

48

PR 12 John (1210), 74, 198; PR 13 John (1211), 174.

49

PR 12 John (1210), 93; PR 14 John (1212), 138.

50

Rot.Ob.Fin., 334; for Hugh Malebisse see Holt, Northerners, 46 note 1.

51

PR 11 John (1209), 155.

52

Rot.Ob.Fin., 413; J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 334 and note 173.

53

Rot.Ob.Fin., 398.

54

PR 10 John (1208), 45.

55

Ib., 191.

56

PR 11 John (1209), 95.

57

PR 12 John (1210), 14.

58

Ib., 139.

59

PR 13 John (1211), 93.

60

PR 14 John (1212), 144-5.

61

Dialogus de Scaccario, 162.

62

Holt, Magna Carta, 109.

63

For this paragraph and the next I have used the lists of barons in T. Madox, The antiquities of the exchequer, 2 vols. (2nd edn., 1769), ii, 315-16, supplemented by details from individual articles in The Oxford Dictionary of National Biography.

64

Not listed by Madox, but recorded as a baron of the exchequer in a writ printed by D.M. Stenton, English justice between the Norman Conquest and the Great Charter, 1066-1215 (1965), 212-13, where he is named as William, archdeacon of Taunton.

65

For this development see D. Crouch, The birth of nobility: constructing aristocracy in England and France, 900-1300 (2005), especially 241-8.

66

Chronica Rogeri de Houedene iii (Rolls Series, 1870), 298.  The distinction between earls and barons is also made by Howden in his account of William the Lion’s doing fealty to King John outside Lincoln on 22 November 1200, which presents the witnesses in three groups, made up of prelates, earls and barons – Chronica Rogeri de Houedene iv, 141-2.

67

Victoria County History of Wiltshire xiii (1987), 54.

68

PR 9 John (1207), 208.

69

Rot.Chart., 170.

70

Book of Fees, ii, 707, 742.

71

Ib., i, 144.

72

S.E. Thorne (ed. and trans.), Bracton on the laws and customs of England ii (Cambridge, Massachusetts, 1968), 330 (fol. 116b).

73

Holt, Magna Carta, 334.

Referenced in

Clause 55 (The 1215 Magna Carta)


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Original Latin

XXII

Nullus clericus amercietur de laico tenemento suo, nisi secundum modum aliorum praedictorum, et non secundum quantitatem beneficii sui ecclesiastici.

22

No cleric is to be amerced in respect of his free lay tenement, except in the same way as the others aforesaid, and without regard to the value of his ecclesiastical benefice.

Audio commentary

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Commentary for academic researchers

Aims and lay fees

Clause 22 is one of only three in Magna Carta to be devoted to ecclesiastical interests (nos. 1, guaranteeing the church its freedom, and 27, endorsing the clergy’s role in the administration of intestates’ goods, are the others).  That its significance and purpose now appear less than ideally clear is due to the sequence of clauses having been disordered at this point by the insertion of a new one, almost certainly at a very late stage, between nos. 9 and 10 of the Articles of the Barons.  No.9 (the basis of Clause 20 of the Charter) was unusual in its social range in laying down that merchants and villeins as well as free men were only to be amerced in proportion to their offences, that the penalties imposed upon them were not to be such as to endanger their livelihoods, and that the rate of punishment was to be assessed under oath by honest men of their neighbourhood.  Ecclesiastics could have been regarded as included among the free men of Article 9, as they appear to have been in the rest of the Charter, but it was clearly felt that they needed a more specific protection.  Article 10, from which Clause 22 derived, provided this by extending the principles of Article 9 to the clergy and imposing similar restrictions: amercements were to be imposed `in the same way as the others aforesaid’, and only upon a cleric’s `free lay tenement’, while his ecclesiastical benefice, which seems to have been regarded in the same light as, for instance, a merchant’s stock in trade, was not to be targeted (this is discussed further below).

Among the Articles, no.10 followed naturally from no.9, but in the Charter the addition of Clause 21, making special provision for the treatment of amercements upon earls and barons (among whom, it must be assumed, bishops, abbots and priors were included, though this is nowhere stated in Magna Carta), introduced a potential note of ambiguity when it ordained that the great men of the realm were to be amerced not by their neighbours but by their peers.  Following on from this, Clause 22 could be understood as prescribing that clerics, too, were only to be amerced by their peers, presumably by other men in orders.  But the similarity in phrasing between Clauses 20 and 22, matching that of the two articles on which they were based, makes it overwhelmingly probable that the ambiguity (which was corrected in the 1217 reissue) was the result of inadequate revision after the insertion of Clause 21, and that Clause 22 should be seen as maintaining for the clergy the principles laid down for the laity in Clause 20.

The clergy in question were secular priests, and above all those who held benefices as their rectors, while their neighbours must have been their own parishioners, who could be plausibly regarded as including men whose standing was akin to that of their parsons.  Where the latter’s property was concerned, the separation of their lay fees – lands from which secular services were due – from those held in return for the performance of purely spiritual services, or `alms’, was well-established by 1215.1  Contrary to what might have been expected, it would appear that most of the land held by clerics fell into the category of lay fees.  Property held in alms – elemosina – usually constituted a relatively small proportion of a priest’s estate.  Representing the hard core of ecclesiastical endowment, without which a church could not function, it consisted primarily of the ground on which it was built and its other basic assets, and was subject only to ecclesiastical jurisdiction.  Such, for example, was the messuage in Cuddington, Surrey, which was held `by the service of 3d. of wax per annum and [that of] ringing the church bells on the year’s feast days’.2  But most acquisitions, whether attached to a benefice or not – secular clergy could legitimately acquire land by inheritance or purchase and hold it on the same terms as laymen – were apt to be regarded as lay fee, and as such were exposed to the demands of secular government.  It could sometimes be hard to distinguish between the two categories – in 1205, for instance, Bishop John Gray of Norwich had to divide the lay fee from the `free land’ of Thornham church, after the difference had become blurred with the passage of time3 – but the principle of separation was understood, and must indeed have been fostered by the development of the assize Utrum, whose function was to decide whether land was elemosina or lay fee, from the reign of Henry II onwards.4

Developing procedures

But although it may have been rare for priests to hold no lands as lay fee, it was not entirely unknown.  In 1165 William de Merlai was recorded as owing 200 marks (£133. 6s. 8d.) `for an amercement’.  In 1168, after nothing had been paid in the meantime, it was noted both that William resided in the Suffolk honour of Eye, and that the sheriff had sworn that `nothing of his is to be found outside the bounds of the church (extra septa ecclesie)’.  The same entry was entered on the pipe roll every year until 1182, when it was transferred to a list of desperate debts and then abandoned.5  The debts of Geoffrey of Piddle, a Dorset man, recorded as owing seven marks `for right concerning land’ in 1174,6 and of Geoffrey the priest of Goring, Sussex, amerced of twenty marks for disseisin in 1182,7 were annotated in identical terms, while of a group of Warwickshire men amerced in 1184, some of them identifiable as clerics, it was simply noted that `certain [men] have nothing in lay fee’.8  

A case from 1181 is particularly revealing.  Jeremy of Ecclesfield, a Yorkshireman, was recorded as owing forty marks (£26. 13s. 4d.) for defaulting on two assizes, and was also said to have nothing `outside the bounds of the church’.9  The debt had in fact been first entered some years earlier, following a Yorkshire eyre in 1176,10 but as with William de Merlai, no reference was made at first to Jeremy’s having no lay fee, only to his having paid nothing over five years.  But eventually the problem was solved.  Jeremy had been disputing the rectory of Ecclesfield, near Sheffield, with the abbot of St-Wandrille in Normandy, and almost certainly in 1184 they reached an agreement, under Henry II’s auspices.11  Jeremy abandoned his claim to the church, its dependent chapels and the abbot’s lay fee, and in return the abbot granted him a perpetual vicarage in the church and chapels, and also the whole lay fee, for which he was to pay an annual farm of twenty marks.  This settlement at last gave Jeremy the means to pay his debt to the king, and in 1184 he began to clear it, paying a total of £21. 6s. 8d. in that and the following year – he appears to have died before he could pay the rest.12

In all these cases the debts were entered on the pipe rolls, without anything being said about how, or even if, the money was to be raised where there was no lay fee available.  In the case of William de Merlai the pursuit of the debt was abandoned, in that of Jeremy of Ecclesfield it was taken up when the necessary resources were found.  A Lincolnshire case from the same period suggests that half-measures were sometimes the only recourse.  In 1180 Gilbert the priest of Fulstow and Hugh the clerk were amerced by the king’s justices of one mark and three marks respectively `for a false claim concerning a lay fee’.  Gilbert eventually paid his debt in full, but Hugh, having paid one mark in 1181 and 20s. in 1182, paid no more thereafter; in 1184 it was noted that `he has nothing in lay fee’, and in 1186 the remaining 6s. 8d. was transferred to a list of hopeless debts and abandoned.13  Presumably his secular resources were exhausted by his two payments, and the sheriff’s men did not distrain on any ecclesiastical ones he may have had.  If that is so, then government policy changed around this time, in ways which may have been reflected in Clause 22.

Several sources indicate what came to be done from the late twelfth century onwards, when a crown debtor who was an ecclesiastic lacked resources upon which the sheriff could distrain.  Glanvill, discussing the treatment of clerics who failed to come into court when litigating over churches, `especially if he has no lay fee’, recommended that `the bishop of that place, or the official if there is no bishop there, shall be commanded to constrain the clerk to come to court, either by threat of seizing the church into his hands as a punishment for default, or by any other lawful means ...’,14 and record evidence, too, suggests that where there was no lay fee, the responsibility for enforcing attendance, or payment, came to be transferred to the bishop or his representative.  The pipe roll for 1199 records without comment that William de Trailli had been amerced by forest justices in Cambridgeshire and Huntingdonshire of half a mark `for waste in Swineshead’.15  But an entry on that year’s memoranda roll records the sheriff of Bedfordshire, where William presumably lived, as reporting that he had nothing by way of a lay fee, whereupon the exchequer clerk noted that the bishop of Lincoln was to be notified (Significatur domino Lincoln’).16  Even more explicit was the treatment of Andrew Talebot, who owed £10 `for the request (prece) which King Richard made for him to the abbess of St Edward [Shaftesbury]’.  This time it was the sheriff of Dorset and Somerset who informed the exchequer that there was no lay fee, `and in Easter term a writ was directed to the bishop of Salisbury to distrain him.’.17

Evidence is scarce, but sufficient to indicate that the same distinctions, and the same procedures, were observed during John’s reign.  When in 1201 the parson of Hardwick, Cambridgeshire, failed to appear in the bench to answer to a writ of prohibition, and the sheriff testified that he had no lay fee, the justices directed that a writ be sent to the bishop, presumably of Ely, ordering him to produce the defaulter.18  In 1208 order was given that Hugh Bardolf’s clerk, Joseph, who owed two marks received on his late master’s behalf, should be distrained in Nottinghamshire, `where he has a lay fee, as the sheriff says’.19  In 1214 Richard of Wakerley, litigating with John de Montagu over the Northamptonshire church of Glendon, did not attend in court, `And since he is a clerk and has no lay fee, so it is said, the bishop of Lincoln is ordered to make him come in the quindene of St John the Baptist ...’.20  Bishops had in effect come to be treated as royal debt-collectors, something they may well have resented (in 1199 Henry Marshal of Exeter seems to have refused to act in this way),21 the more so, perhaps, because if they failed to do as they were commanded, then on the evidence of lawsuits from the early 1220s the sheriff would be instructed to act in their place, and also to compel the bishop’s attendance to explain his deficiency.22  Although the protocols in force during John’s reign were nominally respectful of clerical immunities, they were patently devised for the king’s benefit, not that of the church.

Pressure on the clergy

The processes whereby amercements on clerics were collected illustrate the separation of elemosina from lay fee which it was the principal aim of Clause 22 to maintain.  They were ancillary, however, to the enforcement of that clause, which was primarily concerned to control the scope and assessment of amercements.  No evidence survives to show how or by whom assessments were made during John’s reign, but no doubt the process was expected to involve a close scrutiny of a parson’s resources, followed by a no less careful distinction between their components.  In demanding that the distinction between elemosina and lay fee be observed, Clause 22 was in effect requiring that less than all a cleric’s holdings be taken into account when an amercement was assessed, so leading, perhaps, to smaller penalties being imposed than might otherwise have been the case, or even, when there was no lay fee, to total exemption.  For the laity, one result could have been larger exactions upon themselves, to make up for any clerical shortfalls; such a development might well have bred resentment, had ecclesiastics not come under increasingly severe pressure, in forms peculiar to themselves as well as ones which they shared with laypeople, as John’s reign progressed.

It is impossible to tell with any certainty how far the amercements and fines – the distinction between them became increasingly blurred during John’s later years, and it seems unlikely that ecclesiastics demanding reform wished to maintain it when the king himself did not23 – imposed on clerics were in fact assessed on lay fees only, or if they were calculated to exploit their elemosina as well, and it is arguable that Clause 22 provides the only clear statement that this did in fact happen.  There can be no doubt, however, that some substantial sums were demanded.  In 1209, for instance, Laurence the clerk of Wilton, rector of Bishopthorpe in Yorkshire and probably clerk to Roger de Lacy, constable of Chester, undertook to pay 500 marks to have the king’s good will (he paid his debt over the next five years).24  A year later the victims of the king’s `autumnal justices’ in East Anglia included Geoffrey, archdeacon of Suffolk, who had to find 300 marks `for having the king’s benevolence’, and the philosopher Daniel of Morley, rector of Flitcham, Norfolk, amerced of 200 marks for disseisin,25 while in 1211 the king’s grace cost Roger, archdeacon of Sudbury, 500 marks, all paid within twelve months.26  Clerics like Roger the archdeacon were clearly men of substantial means.  Whether the royal officials who targeted them calculated what they could afford to pay on the basis of their lay fees alone, or whether they took their elemosina into account as well, it is impossible to say, and the same is true of the many fines and amercements imposed on less affluent members of the first estate, for whom the king’s demands, in proportion to their resources, may have constituted a heavier blow than those made upon the senior clergy.  The seven marks owed by the parson of Irchester, Northamptonshire, for a forest offence in 1208,27 the twenty-five marks extracted a year later from the parson of Ollerton, Nottinghamshire, `for having an inquest concerning the forest’,28 or the twelve marks paid by Robert the chaplain on unspecified grounds in 121129 – these penalties, and numerous others like them, may have made grievous demands upon the men affected, and been met – as perhaps they were intended to do – only by drawing upon spiritual as well as secular resources.

However they were directed, exactions of this kind, though certainly potentially, and no doubt often actually, burdensome, constituted a normal, even expected, element in the governance of Angevin England.  But the particular circumstances of John’s reign, and above all his quarrel with the papacy over the archbishopric of Canterbury, probably had an additional impact on the English clergy which can seldom be estimated in individual terms but which is very likely to have been severe, and which may also have been reflected in the formulation of Clause 22.  The interdict laid upon England on 24 March 1208, and then the excommunication of King John himself on 8 November 1209, exposed the English clergy for over six years (the interdict was lifted on either 29 June or 1 July 1214)30 to administrative and financial demands which they were ill-equipped to resist, and which were made, moreover, when John’s needs were at their most pressing and his power to enforce his exactions at its greatest.

The effects of the interdict

According to Ralph of Coggeshall, John responded to the interdict by ordering the confiscation of the lands, rents and moveables of the clergy and also of the religious.31  Nearly all of those affected were soon able to recover their losses, at a price, but the forfeitures set in motion a prolonged spell of uncertainty and exploitation, which was made worse by the king’s excommunication in 1208.  Dioceses which had been returned to their holders a year earlier were now seized for the second time, as almost all their bishops, feeling unable to work with or for a king who had fallen under the ban of the church, now made themselves scarce – during the next six years only Norwich, Winchester and probably Carlisle still had resident diocesans.32  Ecclesiastical administration continued, but the officials responsible inevitably lacked the standing of absentee prelates, leaving their clergy without effective leadership.  Recourse to Rome, moreover, became well-nigh impossible, especially after the exercise of papal jurisdiction in England was prohibited by John in 1210.33

Vacant sees were entrusted to royal officials, some of whom were themselves clerics – the archdeacons of Durham,34 Huntingdon35 and Stafford36 all acted in this capacity – but many of whom were emphatically not.  Men like John FitzHugh in the diocese of Salisbury,37 William de Cantilupe, the king’s steward, in Worcester,38 Robert de Vieuxpont and then Philip of Oldcoates in Durham,39 and Brian de Lisle in York and Lincoln40 are likely to have been single-minded in their exploitation of their positions, whether on the king’s behalf or their own, and it is difficult to imagine them making fine distinctions between elemosina and lay fees when opportunities arose for amercing the clergy over whom they ruled.  They may, indeed, have felt encouraged not to do so by the king’s order for the confiscation of ecclesiastical assets whose holders had observed the papal interdict, on the grounds that they were no longer performing the spiritual services for which they held them.41  In such cases elemosina were effectively being turned into lay fees by royal fiat, still further obscuring the differences between them.

To make matters worse for the English clergy, they were also liable to direct exploitation by King John’s government.  A list of the king’s receipts from the English church during the interdict lists the issues of eight bishoprics, and then adds totals of the money taken from the clergy of eleven dioceses.42  The former were more profitable, but the contributions of the latter were by no means negligible.  Most were recorded as paying only hundreds of pounds – £152. 10s. from Exeter, £278. 17s. from Bath, and just £404. 11s. from London, for example – but there were also some larger returns.  The clergy of Lincoln were said to have paid a total of £2258. 18s. 4d., and those of Canterbury £1150. 19s. 10½d., while those of York and Durham together provided no less than £4272. 6s. 8d.  There is nothing in the list to show how these sums were made up – it is possible that Norwich’s payment of a round £1000 represented a one-off contribution, perhaps levied upon the diocese at a time of particular need, despite Bishop John Grey’s unswerving loyalty to the king, but that can only be surmise –  but again, it is difficult to believe that the royal officials who extracted them were greatly, or indeed at all, concerned to distinguish between the resources from which they raised ecclesiastical money for the king.  How vulnerable the clergy could be to royal demands at this time is strikingly shown by Brian de Lisle’s account of 1211 for the numerous custodies and lordships, lay and ecclesiastical, which were then in his keeping.  Among the sums accounted for were a number of `gifts’ (dona) from the northern clergy.  The abbot of Selby contributed only twenty marks (£13. 6s. 8d.), and the canons of York 100 marks (£66. 13s. 4d.), but the clergy of Nottinghamshire paid £286, and those of the diocese of Carlisle £444. 14s. 4d., while the clergy of Yorkshire and Lancashire together supplied no less than £2260. 12s. 4d.  All these sums, amounting to £3071. 6s. 8d., appear to have been paid during the year of Lisle’s account.43

Some of the money raised from dioceses during the interdict is known to have been paid into the royal chamber, leaving no formal record of either its source or its amount.44  It is very possible that there were other exactions upon the clergy like those of Brian de Lisle which were similarly disposed of, unknown to and unrecorded at the exchequer.  The steps which the papal legate Guala took to discipline and punish clerics who supported the rebel barons during the civil war of 1215-17 suggests that there was serious disaffection from King John’s regime among the English higher clergy, and it seems unlikely that the canons of York were the only capitular victims of its arbitrary levies during the years of interdict.45  The demands made upon the English church which provoked such resentment, and which also gave rise to Clause 23, did nothing to prevent Innocent III’s abrogating Magna Carta in 1215, when he condemned it in its entirety as `null, and void of all validity for ever.’46  But the clause was included, with minor revisions, in all the reissues of the Charter, suggesting that the distinction between elemosina and lay fee was one which the clergy valued and wished to see maintained, even though in purely practical terms it could not prevent the crown from keeping the initiative, and the advantages, which it had enjoyed in its dealings with clerical debtors before 1215.   

1

I have followed the argument of A.W. Douglas, `Frankalmoin and jurisdictional immunity: Maitland revisited’, Speculum 53 (1978), 26-48.

2

Curia Regis Rolls iv, 1205-1208 (1029), 201.

3

C. Harper-Bill (ed.), English episcopal acta vi: Norwich, 1070-1214 (Oxford, 1990), no. 407 (pp. 325-6).

4

J. Hudson, The Oxford history of the laws of England ii: 871-1216 (Oxford, 2012), 607-9.

5

PR 11 Henry II (1165), 7; PR 14 Henry II (1168), 18; PR 28 Henry II (1182), 6.

6

PR 20 Henry II (1174), 19.

7

PR 28 Henry II (1182), 89.

8

PR 30 Henry II (1184), 46.

9

PR 27 Henry II (1181), 37.

10

PR 22 Henry II (1176), 108.

11

W. Farrer (ed.), Early Yorkshire charters iii (Edinburgh, 1916), no. 1278 (pp. 12-14).  The editor dates the agreement to 1188, presumably because it was made at Geddington, where Henry II held an important council in that year.  But entries on the pipe roll for 1184, recording payments for sending wine to Geddington, make it highly likely that Henry II stayed there during his visit to England in the latter year, and that the agreement over Ecclesfield was made then – PR 30 Henry II (1184), 113, 136.  My interpretation of this case follows that of Douglas, art.cit. n. 1 above, at 40-1, even though the latter accepts Farrer’s dating of the agreement.

12

PR 30 Henry II (1184), 32; PR 31 Henry II (1185), 63; Jeremy’s death was recorded only in 1189, but no further payments by him were recorded after 1185 – PR 1 Richard I (1189), 77.

13

PR 26 Henry II (1180), 55-6; PR 27 Henry II (1181), 57-8; PR 28 Henry II (1182), 54; PR 30 Henry II (1184), 16;  PR 32 Henry II (1186), 79.

14

G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 48.

15

PR 1 John (1199), 156

16

The memoranda roll for the Michaelmas term of the first year of the reign of King John, 1199-1200, Pipe Roll Society new series 21 (1943), 36.

17

Ib., 66 (Andrew’s debt, too, was entered without comment on the pipe roll).

18

Curia Regis Rolls ii, 1201-1203 (1925), 11.

19

R.A. Brown (ed.), The memoranda roll for the tenth year of the reign of King John (1207-8), Pipe Roll Society new series 31 (1957 for 1955), 63

20

Curia Regis Rolls vii, 1213-1215 (1935), 174-5.

21

The memoranda roll for ... 1199-1200, 74.

22

Curia Regis Rolls x, 1221-1222, 111, 223.  Other instances of clerical litigants having no lay fee are 118, 149, 186, 225, 231, 243, 248, 249.

23

Discussed in the commentary on Clause 20.

24

PR 11 John (1209), 125.

25

PR 12 John (1210), 34.

26

PR 13 John (1211), 6; PR 14 John (1212), 180 – Roger was mistakenly entered as archdeacon of Suffolk.

27

PR 10 John (1208), 180.

28

PR 11 John (1209), 118.

29

PR 13 John (1211), 121.

30

Dates from C.R. Cheney, Innocent III and England, Päpste und Papstum 9 (Stuttgart, 1976), 308, 321, 352 n.126.

31

J. Stevenson (ed.), Radulphi de Coggeshall Chronicon Anglicanum (Rolls Series, 1875), 163.

32

Details in Cheney, Innocent III and England, especially 308-15.

33

J.R. Sayers, Papal judges delegate in the province of Canterbury, 1198-1254 (Oxford, 1971), 268-70.

34

PR 13 John (1211), 35.

35

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 80; PR 13 John (1211), 145.

36

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commision, 1833 – hereafter Rot.Lit. Claus. i), 127, 135, 138.

37

Rot.Lit.Pat., 95-6.

38

Rot.Lit.Claus. i, 110; PR 14 John (1212), 60-1.

39

Rot.Lit.Pat., 81 (Vieuxpont); PR 13 John (1211), 35 (Oldcoates, with Archdeacon Eimeric).

40

PR 14 John (1212), 2-3.

41

C. Harper-Bill, `John and the church of Rome’, S.D. Church (ed.), King John: new interpretations (Woodbridge, 1999), 289-315, at 306.

42

H. Hall (ed.), The red book of the exchequer ii (Rolls Series, 1896), 772-3.

43

PR 13 John (1211), 91-2.

44

PR 11 John (1209), 91 (issues of the diocese of Exeter); Rot.Lit.Claus. i, 147 (diocese of Bath).

45

N. Vincent (ed.), The letters and charters of Cardinal Guala Bicchieri, papal legate in England, 1216-1218, Canterbury and York Society 83 (1996), lxi-lxvi.

46

C.R. Cheney and W.H. Semple (eds. and trans.), Selected letters of Pope Innocent III concerning England (1198-1216) (1953), 216.


showhide
Original Latin

XXIII

Nec villa nec homo distringatur facere pontes ad riparias, nisi qui ab antiquo et de jure facere debent.

23

Neither township nor man is to be distrained to make bridges over rivers, except those who should of old and rightfully do so.

Audio commentary

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Commentary for academic researchers

River-banks and royal sport

The king’s right to call upon his subjects to serve in the army and to carry out work on fortifications and bridges, the so-called trimoda necessitas, was undeniably ancient, dating back to the mid-eighth century.1  The obligations inherent in it were still liable to be enforced 450 years later – it is noteworthy that in the lists of exemptions contained in King John’s charters, work on bridges was very rarely included, and usually only in grants to religious houses2 – but although it is possible that post-Conquest kings were exploiting ancient obligations when they imposed the one which Clause 23 was devised to curb, the fact that the bridges referred to in Magna Carta were said to have been ad riparias, at river-banks, makes it clear this clause was not essentially concerned with public and military responsibilities.  Rather it was directed against the misuse which had developed under John and his immediate predecessors of powers inherent in their kingship for the advancement of their private pleasure, and specifically of their pursuit of game with falcons and hawks.

An archetypal aristocratic sport – when Richard I was riding through a little village in Calabria on his way to the Holy Land in 1190, he was said to have forced his way into a house in which he heard the cry of a hawk, and to have carried the bird away, apparently believing that rustici had no right to possess such a creature3 – hawking was above all conducted on the banks of rivers and marshes, to the extent of shaping the verbs used to define it – riveare in Latin, rivoier or rivierer in Anglo-Norman.4  It was there that the cranes, herons and ducks which constituted the choicest prey were found in greatest numbers, and where their pursuit by trained falcons and hawks (especially the former) provided the best sport.5  Once a falcon had been launched at its prey, the falconer, following it on horseback, and apparently accompanied by dogs (needed to pick up birds struck by a stooping falcon in its descent – hawks, by contrast, seize their prey in their talons), had to be able to keep up with the bird, and bridges were seemingly put down at intervals to make this possible.  In 1214 Brian de Lisle’s account for the issues of the archbishopric of York, in the context of his expenditure on hunting recorded 60s. as having been spent on twenty bridges.6  At an average of 3s. apiece, they were probably not much more than gangplanks, but were presumably robust enough to allow mounted men and packs of dogs to cross from one side of a river to the other.

The demand for the building of bridges as an adjunct to royal sport may well have originated on the king’s demesnes, and then been extended, like the royal power itself, onto the lands of others, until it effectively covered the whole of England.  In this there would have been similarities to the law of the forest, which was also arbitrarily extended over other men’s estates throughout the twelfth century.  That law did not apply to hawking, however, and although the extension of royal rights where both forests and river-banks were concerned was addressed in a unitary fashion in Clause 47 of Magna Carta, in 1225 they were separated, and two successive clauses dealing with the abuse of hawking rights were placed together as numbers 15 and 16.7

Clause 23 of the 1215 Charter was closely based upon no. 11 of the Articles of the Barons, but short though it is, it differs in significant ways from its model.  The Article was concerned with townships, and prohibited their amercement, but the Clause extended its coverage to include people, and was directed against their being distrained to perform the service complained of.  In other words, whereas the Article prescribed that no community should be punished for having failed to provide the bridge required, the Clause ordered that no-one should be required to build one in the first place.  And whereas the Article allowed an exception for places which had traditionally supplied bridges, the Clause not only extended it to people but also made it more precise – the king and his officers were not to force communities to build a bridge because they could claim that there had always been one at a given spot, but could only impose in this way on people and places which had demonstrably performed this service in the past.  People could answer back, whereas places could not.

Hawking was a seasonal sport, practised between autumn and spring, and therefore probably unlikely to endanger the harvest by calling men from the fields to make bridges.  But it still had the potential to interfere with necessary tasks like ploughing and sowing, and with the care of livestock, while the seizure of distresses to enforce bridge-building, when these took the form of cattle or agricultural implements (as they must often have done), would have been no less deleterious.  As far as these considerations were concerned, however, Clause 23 was probably drawn up less with the interests of peasants in mind, than with those of their lords, whose estates and rentals could have been harmed by the taking of both distresses and amercements, and who could also have suffered from being called upon to compel their tenants to provide bridges, and then being punished if they failed to do so.

Royal birds

Post-Conquest English kings went hawking as enthusiastically as they hunted deer, and spent a good deal of money on both sports.  This was particularly true of the Angevin kings.  In October 1164 Henry II failed to appear on the day appointed for the council at Northampton which saw the final showdown between himself and Archbishop Thomas Becket because he had spent it pursuing birds on nearby streams and rivers – circa rivos aquarum et fluenta in avibus coeli ludens8 – and he appears to have expected local landowners to set up the conditions in which he could enjoy his sport.  Two years later one Roger Cappa was amerced of twenty-one marks (£14 – a considerable sum, and one paid within two years) in Surrey because he had failed to prepare the king’s passage on a river bank (viam Regis in rivar’).9  Richard I, too, was a keen falconer, and often had birds and their keepers sent to him from England to Normandy.  £7. 1s. were spent pro passagio of the king’s falconer with his birds and their hutches in 1194,10 a larger outlay than later because Richard had only recently been freed from captivity and a hawking establishment needed to be created for him – in 1196 the cost of transporting three falconers to Normandy, along with their birds and hutches, came to only £3.11  The fact that the records of John’s reign are much fuller than those of his two predecessors makes it impossible to make precise comparisons, but the evidence certainly suggests that John was at least as devoted to hawking as his father and older brother had been. Like Richard I, he had birds sent to him in Normandy.12  After his return from Poitou late in 1206, at the right time of year for such sports, he was described as enjoying himself hunting and hawking (bois et rivieres antoit),13 and when he was in the midlands in November 1209 he spent six days riding through forests and river-banks (per forestas et ripparias), while his baggage-men hung around with the king’s wardrobe in Northampton and Rockingham.14

Under such rulers, it is hardly surprising that good hawks and falcons should have been so much in demand that it became commonplace for debts to the crown (and, indeed, to others) to be partly, or even wholly, paid in birds – in 1210 William son of Reiner undertook to give three Norwegian goshawks and three Icelandic girfalcons (the largest and most valuable kind of falcons) for licence to settle a property dispute with Walter de Riperia.15  Such debts and proffers could be carefully defined – the birds were to be worth the money they replaced.  Thus in 1209 Geoffrey de Gidney, an East Anglian knight, was recorded as owing `a good falcon flying well’,16 while a year later the debt of William of Leicester was still more carefully defined – to recover his land at Merrow in Surrey, he had to give a girfalcon which to be both good and young, one which had just left the nest and was confined for moulting (j bonum girfalcum ramagium mutarium).17  So usual had it become for debts to be settled in this way by the end of Henry II’s reign, that the Dialogus de Scaccario devoted a short chapter to the practice, noting that in such cases summonses were not issued for payment at the Easter exchequer, `because birds are rarely flown in the summer’, but were sent out ahead of the Michaelmas session, when the promised hawks and falcons could be expected to be in good condition for the approaching season’s sport.18

King John’s sport

John was almost continuously resident in England from 1204 onwards, so that the pleasure he took in his favourite sport would have made a much greater, and more widespread, impact there than it could have done under Henry II and Richard I.  The fullest evidence for his falconry, however, and for its implications for Clause 23, is provided less by the records of his own reign than by orders and prohibitions from the reign of Henry III which refer back to the reigns of that king’s father and grandfather.  These show that Henry II and John went out with their birds, and presumably demanded the making of bridges, in many parts of southern and central England.  Perhaps it was in deference to Clause 23 that an order of 1224 referred to the publica riparia of the River Severn,19 suggesting that by that date there were river-banks where restrictions of the kind imposed by the king’s sport were no longer enforced, just as the stress placed in the later instructions – issued at intervals between 1234 and 1253 – on practice under earlier kings may reflect the Clause’s demand for the observance of accepted precedent.

By reference to that precedent Henry III could still expect the River Kennet, flowing west from Hungerford towards Marlborough, and also stretches of the Thames, to provide him with venues for his hawking,20 and the same was true of the River Lea in Essex, running south from near Luton to join the Thames at Bow,21 of the River Mole (another tributary of the Thames) in Surrey and the River Glyme (presumably to be identified with the `Bladen’ of the record) in Oxfordshire,22 and of three Hampshire rivers, the Test, the Avon and the Itchen.23  Further afield, the Upper Avon in Worcestershire was marked out for the king’s hawking in 1238, when order was given for the repair of the bridges between Pershore and Evesham (a relatively modest distance),24 while more generally, in 1235 and 1236 orders were sent to no fewer than sixteen sheriffs, directing them to ensure that the men of their counties did not go hawking on river-banks which had been reserved for the king’s pleasure under Henry II, and instructing them to have bridges built by those who `of old and by right’ should do so.25  One of the rivers affected must have been the Great Ouse in Huntingdonshire, which had clearly long been a favoured site for royal hawking – a number of estates along its banks were linked to serjeanties associated with falconry.26

King John certainly went hawking, or at any rate expected to go hawking, on at least some of the rivers referred to by his son, and also along some which Henry III did not mention.  On either 6 or 13 February 1213, for instance (the record is unclear as to the day), as he made his way south from Yorkshire, after crossing the Humber into Lindsey he broke off his journey towards Lincoln for a day’s hawking at Great or Little Limber, perhaps on one of the tributaries of the Humber.  Although neither day was apparently of religious significance, John still felt obliged to do penance for having devoted his sport to it, and therefore provided bread, meat and ale for 100 poor people `because he went with his girfalcons to take cranes and took nine of them ...’.27  Late in the previous year he had fed another 100 paupers to atone for his having gone hawking on St Nicholas’s day (6 December),28 probably along the Thames, since he was recorded that day at Bampton in Oxfordshire, while to make up for his having taken seven cranes at Ashwell, Hertfordshire, on the feast of the Holy Innocents (28 December) – no doubt he took advantage of the closeness of the River Rhee – he fed no fewer than 350, at the rate of fifty per crane.29

Whether John owed any of these successes to the construction of bridges is not recorded, but that he required this on other occasions is shown by the letters patent issued on 11 September 1208, in which he notified the knights and free tenants living along the Thames between Cricklade and Eynsham that he had appointed Roger de Maysi (a minor tenant-in-chief in Oxfordshire) to keep the river-banks, and commanded them to take orders from Roger and have bridges made as he directed.30  Similar responsibilities were probably.laid upon one Aubert, a servant of Thomas of Sandford whom John appointed on 19 November 1205 to keep the banks of the Avon between Malmesbury and Bristol, with a weekly wage of 7½d. until Ash Wednesday following (25 February 1206).31  Such instructions suggest that free-holders were expected to put their own tenants at the disposal of royal officers so that the king could have his sport – a good reason for their finding the practice objectionable.

Penalties and prohibitions

Not every river, or part of one, was in the custody of men like Roger de Maysi and Aubert.  In 1205 John ordered the sheriff of Hampshire to release the oxen he had taken from Roger Mortimer (presumably a kinsman of the lord of Wigmore, who also held the manor of Stratfield Mortimer just south of the Thames, on the border between Hampshire and Berkshire) pro passu riverie, an offence defined with greater precision later that year in the king’s acknowledgement that Roger had paid five marks `for the crossings (passibus) which he did not make over river-banks in his (sic) bailiwick’.32  Roger was said to have made fine `with us’, and no debt was entered on a pipe roll.  When in November 1241 Henry III ordered the sheriff of Berkshire to punish the townships responsible for defective bridges over the Kennet, taking five marks from each, he gave instructions that the money was to be paid into the wardrobe.  The abbot of Reading, who made fine by five marks for his manors of Whitley and Crookham, which were also punished pro defectu pontium (this suggests that Henry had gone hawking along the Thames as well as the Kennet), was similarly directed to pay the money into the wardrobe.33  These cases were recorded thirty-five years apart, but the fact that the sum involved was the same in each of them (other townships in the abbot’s liberty were also amerced of five marks apiece), and that the manner of payment was at least broadly similar, raises the possibility that by the beginning of the thirteenth century the penalty for failure to provide a bridge when the king went out after birds had become standardised at five marks – £3. 6s. 8d., a far from insignificant sum – and that it was commonly imposed, and perhaps collected, on the spot, or at any rate without reference to the exchequer.  This makes it less surprising that there are very few recorded instances of such amercements in the surviving pipe rolls, although their being prohibited in Magna Carta strongly suggests that they were frequently exacted.

By Henry III’s time the areas within which such penalties could be imposed had been limited by Clause 23 itself.  But at Christmas 1208, if Roger of Wendover is to be believed, King John had forbidden the taking of birds throughout the whole of England.34  If such a prohibition was indeed imposed, it may well have been primarily as a means of making money, whereby men and women who had previously gone hawking as of right now did so as a privilege paid for to the king.  But the implications of such a ban would nevertheless have been potentially far-reaching, for by proscribing the sport of others John would in effect have been demanding the unlimited extension of his own.  Since the prohibition could not apply to him, it would have given him an effective monopoly of the right to go hawking, and as an inevitable corollary, everyone, everywhere, might have had to contribute to the making of the bridges which he needed in order to enjoy his sport.  The penalty for those who did not do so was in any case severe, and seems to have been arbitrarily imposed, while because it was subject to no external control it was also open to abuse, by the king himself and also by his officials – Clause 48 of Magna Carta included the keepers of river-banks among the royal servants whose `evil customs’ were to be investigated and abolished.  It is hardly surprising, therefore, that in 1215 steps were taken to restrict so injurious a practice.

1

D. Harrison, The bridges of medieval England: transport and society, 400-1800 (Oxford, 2004), 35-9.

2

E.g. T.D. Hardy, Rotuli chartarum, 1199-1216 (Record Commission, 1837), 76-7 (Ramsey), 82 (Peterborough), 145-6 (Meaux), 202-3 (St Werburgh’s, Chester).

3

W. Stubbs (ed.), Gesta regis Henrici secundi Benedicti abbatis ii (Rolls Series, 1867), 125.

4

V.D. and R.S. Oggins, `Hawkers and falconers along the Ouse: a geographical principle of location in some serjeanty and related holdings’, Proceedings of the Cambridge Antiquarian Society 80 (1992 for 1991), 7-20, at 7-8.

5

Details from R.S. Oggins, The kings and their hawks: falconry in medieval England (Yale, 2004), 10-16 – this commentary is indebted throughout to Professor Oggins’s book.

6

PR 16 John (1214), 69.

7

J.C. Holt, Magna Carta (2nd edn., Cambridge), 505.

8

J.C. Robertson (ed.), Materials for the history of Thomas Becket iii (Rolls Series, 1877), 77 – cited by Oggins, The kings and their hawks, 55.

9

PR 12 Henry II (1166), 107.

10

PR 6 Richard I (1194), 213

11

PR 8 Richard I (1196), 60.

12

PR 5 John (1203), 139, 145.

13

F. Michel (ed.), Histoire des ducs de Normandie (Société de l’histoire de France, Paris, 1840), 109.  The Histoire’s chronology is imprecise at this point, placing these events before the death of Hubert Walter in 1205, but John did not go abroad in that year, whereas he spent several months in France in 1206, returning from the vicinity of La Rochelle around the end of November.

14

T.D. Hardy (ed.), Rotuli de liberate ac de misis et praestito regnante Johanne (Record Commission, 1844), 137-8.

15

PR 12 John (1210), 181; Curia Regis Rolls v, 8-10 John, 1207-9 (1931), 142-3.

16

PR 11 John (1209), 159.

17

PR 12 John (1210), 39.

18

E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 182-3.

19

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1201-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus.i), 622.

20

CR 1237-1242, 375-6.

21

CLR 1226-1240, 443.

22

CR 1237-1242, 147.

23

CR 1234-1237, 33.

24

CR 1237-1242, 147.

25

CR 1234-1237, 196-8, 378.

26

Oggins, `Hawking and falconers along the Ouse’, as in n. 4 above, passim.

27

H. Cole (ed.), Documents illustrative of English history in the thirteenth and fourteenth centuries (1844), 253.

28

Ib., 251.

29

Ib., 249-50.

30

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835), 86; Maysi is recorded as holding half a knight’s fee in Oxfordshire in Book of Fees i, 103.

31

Rot.Lit.Claus. i, 57.

32

Ib., 24, 60.  Since Mortimer is not recorded as holding any office in Hampshire, the `sua’ of the record was probably a mistake for `tua’, in an order in which the sheriff was addressed in the second person singular.

33

CR 1237-1242, 375-6.

34

H.G. Hewlett (ed.), Rogeri de Wendover liber qui dictur flores historiarum ii (Rolls Series, 1887), 49.

Referenced in

The copies of Magna Carta 1216 (Features of the Month)

King John’s Lost Language of Cranes (Features of the Month)


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Original Latin

XXIV

Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri, teneant placita coronae nostrae.

24

No sheriff[s], constable[s], coroners or other of our bailiffs are to hold the pleas of our crown.

Audio commentary

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Commentary for academic researchers

(a) Terms of reference

Clause 24 in Magna Carta originated as the first part of no. 14 among the Articles of the Barons, where it followed a provision concerning assizes, contained a second section dealing with the revenues of the shires, and was followed by one article relating to the collection of debts owed to the king by deceased tenants-in-chief, and then by a short series of others (16-21) mostly concerned with the powers of royal officials. The cohesion of this sequence of articles, broken only by No. 17, dealing with the remarriage of widows,1 was to some extent disrupted in the Charter, when Article 13, which could have been plausibly related to the first part of 14 through the association of civil pleas with crown pleas, was separated from its successor to become Clause 19.  But the function of Article 14 as a control upon officialdom was arguably given extra force by its separation into Clauses 24 and 25, which were then relocated to form part of a series of clauses (23-31) largely concerned with the king’s financial rights, and with their exploitation by sheriffs and their underlings.

The first section of Article 14 was not only moved numerically when it became Clause 24, it was also substantially rewritten, in ways which significantly altered its original content and purpose.  Article 14 had forbidden the sheriff to involve himself with the pleas of the crown, that is, with matters of criminal justice, without the coroners.  The Latin phrase translated as `involve himself’ - intromittat se – often implied meddling, an unwarranted interference, but could simply mean `deal with’, without pejorative associations, and that may have been its meaning here.  The sheriff had a legitimate and often necessary role in the processes whereby crown pleas were in their early stages presented and recorded in local courts, and the Article may have been primarily intended to ensure that these preliminary stages were properly gone through, by insisting that the coroners were present at them.  But the possibility still remained that the sheriff would go beyond the arresting of suspects and enrolling of appeals which such proceedings entailed, and that having made an arrest or heard an appeal he would assume a judicial role to which he was not entitled, by holding a court – especially a session of the county court, which he largely controlled - and acting as judge in it.  Clause 24 aimed to prevent this, by categorically ordering that no sheriff, and no other official either, whether constable, coroner or bailiff, was to hold pleas of the crown in this way, instead they were to be the exclusive concern of the king’s justices..

The prosecution of serious crimes was fundamental to the holding of crown pleas, but the latter’s scope extended further than that, to all sorts of royal rights and responsibilities, which were continually expanded.  Defining them as `rights which the king of England has in his land solely and over all men’, the early twelfth-century treatise Leges Henrici Primi listed as crown pleas such crimes as treason, serious theft, murder, counterfeiting coinage, arson and rape, along with the harbouring of those who committed these offences, and also the infringement of royal rights like treasure trove and forest law.2  By 1194, on the evidence of a list preserved by Roger of Howden of the points which the king’s justices were expected to investigate, those rights also included escheats, churches, wardships, the disposal of heiresses, the chattels of Christian usurers and breaches of the assize of wine,3 and they were greatly augmented later.  What they had in common was that jurisdiction over them, and the financial issues of that jurisdiction, belonged to the king.  In the years immediately after 1066 crown pleas were usually administered by the sheriff, who was often an important baron, when he presided in the county court with the bishop and the earl.  The subsequent withdrawal or disappearance of the last two left the sheriff in solitary pre-eminence, wielding a power which soon came to seem excessive, and from around 1100 Henry I, in particular, applied himself to reducing it – less, probably, as a safeguard against miscarriages of justice than to prevent corruption, the diversion of royal revenues into shrieval pockets.4   To that end men of lower rank were nominated to the shrievalty, ad hoc commissions of justices were sent out to conduct sessions in the shires – one held by Ralph Basset in Leicestershire in 1124 has become notorious for its mass execution of thieves5 – and new offices were created for the performance of tasks previously undertaken by the sheriff.  The precise responsibilities, not to mention the identities, of the local justices who appear in the surviving records of government during much of the twelfth century are hard to establish with any precision, but it seems clear that where the crown’s criminal jurisdiction was concerned they acted alongside, or instead of, the sheriffs, and in doing so set in motion a process which would eventually result in the latter’s losing that jurisdiction entirely.

(b) Defining jurisdictions

The process was an uneven one, however.  There was a strengthening tendency during the second half of the twelfth century for crown pleas to be regarded, and treated, as matters to be heard only before the king’s justices.  In 1168 one Eudo, described as the man of Basilea Brito, was amerced of 10s. `because he pleaded a crown plea’, and the serjeant of Flegg, near Yarmouth in Norfolk, gave 13s. 4d. for his involvement in the same case,6 while two years later a royal serjeant in Lincolnshire was recorded as owing 6s. 8d. `because he did not claim a crown plea in the court of the brethren of the Temple’.7  Presumably his responsibilities included ensuring that local courts did not encroach upon the king’s jurisdiction.  In neither case is it recorded what the crown plea in question was, however, and in fact it took some time for a final consensus to be achieved, defining the pleas of the crown and deciding who should hear them.  The initial stages of the Assize of Clarendon, enacted in 1166 `for the keeping of the peace and the maintenance of justice’, were entrusted to both royal justices and the sheriffs,8 and though subsequent proceedings appear to have been envisaged as being conducted before the justices alone, the record of the Assize’s enforcement suggests that in at least half of England the necessary work was done by county officials, that is, by sheriffs and local justices.9 

The named targets of the Assize were robbers, murderers and thieves, along with those who harboured them, and here the issue is further complicated by the fact that by the later years of Henry II’s reign theft, or some forms of it, was said to have been a plea not of the crown but of the sheriff.  This may in fact have been a recent development, for there is evidence that in King Henry’s earlier years jurisdiction over homicide and theft belonged to the crown.  In a royal charter for the royal chamberlain William Mauduit, given between December 1154 and August 1158, murder and theft were reserved for the local justice,10 while jurisdiction over these two crimes was specifically included in a comprehensive grant of powers of justice to Reading Abbey made in 1156 or 1157.11  But later in Henry II’s reign the treatise known as Glanvill, having listed the crimes which `belong to the crown of the lord king’ in terms closely resembling those named by the Leges Henrici Primi, declared that `The crime of theft [furti – the same word used in Reading’s charter] is not included because this belongs to the sheriffs ...’,12 and this was echoed by the Dialogus de Scaccario, which in describing how the chattels of convicted criminals were to be disposed of, distinguished between those of robbers, `also called open thieves’, and `thieves who steal in secret’ – the former became the king’s, but `the goods of thieves, however, go to the sheriff under whom they were arrested and punished ...’.13 

Possibly only particularly serious cases of theft were reserved for the justices.  Although the wording of clause 2 of the Assize of Clarendon is somewhat obscure, it would appear that in 1166 they were expected to hear accusations against thieves and robbers where the value of the stolen goods exceeded 5s.  In the reign of Henry I capital theft had been equated with goods worth 8d., while in the thirteenth century the limit between petty and capital theft was set at 12d..  It seems very improbable that under Henry II that limit was suddenly raised by anything up to 750%, more likely that in order to avoid creating an intolerable workload for the king’s justices by requiring them to deal with every charge of theft which the Assize brought before them, what might be called conventional cases of capital theft, of a kind which might still lead to a man’s being hanged or mutilated but which in themselves hardly threatened the social fabric, were consigned to the jurisdiction of the sheriff.  When in 1176 the Assize of Clarendon was revised and reinforced by the Assize of Northampton, the fact that what were characterised as petty (minutis) thefts and robberies committed in the recent rebellion against Henry II were specifically excluded from the new Assize’s remit, might also suggest that such a distinction formed part of government thinking, the more so as the offences so described were hardly `petty’, since they might involve thefts of horses and oxen, which later constituted capital crimes.14  That such cases were indeed left to the sheriff to dispose of is suggested by a story found in two collections of the miracles of St Thomas of Canterbury, both datable to the early 1170s, recording how a Bedfordshire peasant named Ailward was charged with theft and mutilated after failing in the ordeal, before being healed of his injuries by the saint.  The goods he was alleged to have stolen were initially valued at only one penny, but his accuser then added to them, to bring the charge within the competence of a royal court, while in the proceedings which involved both accounts recorded the involvement of the sheriff - in one of them the accuser was described as ensuring that Ailward underwent the ordeal of water through his `having gained the favour of the sheriff and the judges’.15  

(c) The professionalization of justice

The enforcement of the Assize of Northampton, in 1176 and afterwards, was entrusted to teams of royal justices, making methodical visitations of groups of counties in pre-arranged circuits.  The financial issues of their itinerations, or eyres, as recorded on the exchequer pipe rolls in the 1180s, suggest that their jurisdiction, and manner of proceeding, in criminal cases were already largely identical with those of the more fully recorded eyres of the thirteenth century, the most important difference being that proof of guilt or innocence was made through the ordeal rather than by juries’ verdicts.  Many accusations were made by appeals of felony, but then as later, the justices also depended heavily for information on preliminary presentments by juries, and were alert in detecting omissions and concealments – the burgesses of Doncaster had to pay twenty marks in 1180 `because they concealed a crown plea in their veredictum‘.16  Overall, the justices took cognizance of homicides and accidental deaths, and also of robbery, arson and rape.  It is not clear if they also heard charges of theft, but probably they did, although they may not always have proceeded to judgment in such cases   The chattels of men and women who fled rather than come into court and stand trial, some of whom must certainly have been suspected thieves, were included among the issues of these visitations, and the justices also concerned themselves with individuals and communities which had harboured thieves or allowed them to escape after arrest.  Insignificant offenders could perhaps have been left for the sheriff to deal with later, but it must have been the justices who decided what constituted insignificance. 

The king’s justices were increasingly in a position to exercise an overriding control of the whole system of law enforcement, as is shown by their having reviewed the inquests made upon dead bodies by the sheriff’s serjeants (a responsibility later transferred to coroners), penalised communities which had failed to raise, or pursue, the hue and cry, and in which the tithings fundamental to the workings of the frankpledge system were inadequately maintained, and amerced private courts which had abused their powers, notably by hanging suspects `unjustly’.  They also scrutinized the conduct of officials, and punished deficiencies – the serjeant of a Lincolnshire wapentake who concealed an action of rape, the sheriff of Yorkshire who forced a thief to abjure the realm despite his acquittal through the ordeal of water.17  And they penalised infringements of the assize of wine, and investigated royal rights, and those who encroached on them – the marriage of an heiress, treasure trove, the goods washed ashore from a wreck at sea.  Their competence was very wide, and it had become exclusive, in that the settlement of a crown plea without their permission was now a punishable offence - in 1185 Ralph FitzBernard was amerced of as much as 100 marks `because he made an agreement over a crown plea without the licence of the justices’, and though this was exceptional (Ralph was in fact pardoned a year later),18 sums between 40s. and five marks were levied in other cases.  It could only be a matter of time before the ban on such settlements was extended from the king’s subjects to the king’s officers.    

The eyres of the late 1170s constituted an important stage in the emergence of a cadre of professional justices in England.19  Legal matters were increasingly handled by men of perceived expertise, a development which left little space for the exercise of authority by relative amateurs, as sheriffs, who were essentially administrative officers, were often bound to seem.  This applied to both civil and crown pleas, and it can hardly be coincidence that as the competence of the justices itinerant where the latter were concerned became well-nigh all-embracing, so a separate jurisdiction for the sheriff, largely confined to disorderly behaviour, began to be defined – according to Glanvill it covered theft, but otherwise only `brawlings, beatings, and even wounding’, and even these might be transferred to a royal court if the plaintiff alleged breach of the king’s peace.  It is impossible to tell from the 1189 pipe roll whether the town of Northampton’s payment of £20, `because they held pleas which pertained to the sheriff by writs directed to the sheriff’,20 arose from civil or criminal litigation, but there was no such ambiguity about Peter de Brus’s proffer of 400 marks for the Yorkshire wapentake of Langbaurgh in 1207, in which he acknowledged that such crown pleas as emerged within the wapentake would be heard before justices itinerant, and that `for other pleas, indeed, which belong to the sheriff, they will answer before the sheriff.’ 

(d) Coroners and the danger of corruption

But if a lack of professional competence was one reason for the reduction of the sheriff’s jurisdiction over pleas of the crown in the second half of the twelfth century, another and deeper-rooted one was the fear of corruption on the part of the king’s officers in the shires, with the sheriffs at their head.  The issues of crown pleas were the king’s, who stood to loose if they were siphoned off by the men handling them before they were accounted for to the exchequer, and the risk only grew as the king’s jurisdiction expanded.  The sixth article of the Inquest of Sheriffs held in 1170 inquired concerning the chattels of those who had been convicted under the Assize of Clarendon, or who had fled in response to it, and it also required that `it be likewise inquired if anyone was unjustly accused under that assize, for reward or promise or hatred or in any other unjust manner; and whether anyone of the accused was released or convicted for reward or promise or love, and who took a reward for it ...’.21  The Assize had created an agency of government capable of being exploited for corrupt purposes by those who administered it, to the detriment of the king’s finances and the king’s peace alike.  The opportunities for extortion and exploitation were probably largely controlled by a regular series of judicial visitations in the second half of Henry II’s reign, but the constraints upon official misbehaviour may have been relaxed in 1189/90, when following the accession of Richard I there was an almost complete replacement of sheriffs, with twenty-three out of twenty-eight shrievalties passing into the hands of new officials, all of whom had bought their offices and expected to use them to recoup their outlay.22 Then on 30 March 1194, after Richard’s return to England from crusade and captivity, there was another shrieval  change-around, with nineteen sheriffs being replaced.23  It is against this background, and that of the disorder associated with Count John’s rebellion in 1193, that the instructions drawn up in September 1194 for the conduct of a nationwide eyre should be seen. 

Following the list of articles under which the justices were to investigate and maintain the pleas of the crown came two administrative orders (the first of several) concerning the responsibilities of local officials.  The first ordered the election in each county of three knights and a clerk as `keepers of the pleas of the crown’, soon known as coroners.  Their task, that of recording crown pleas, was not new, but it had previously been carried out by the serjeant of a hundred or wapentake, who might be described as a king’s or a sheriff’s serjeant, and who in any case was probably ultimately answerable to the sheriff.  In 1186 the serjeant of a Northamptonshire hundred had to pay ten marks because `he did not present a crown plea to the sheriff previously presented to himself’.  Probably it was a violent or accidental death, something always prominent among the coroner’s concerns, and before 1194 relevant to the sheriff as well, since he became responsible for the arrest of suspected killers, and was also required to sell any tangible cause of an accidental death, like the horses recorded as killing children in Yorkshire and Devon in 1184, and to account for the proceeds at the next eyre.  And following the creation of a new office came a regulation concerning an existing one, with the stipulation that no sheriff was to be a justice in his own county, or in any county where he had been sheriff since the first coronation of Richard I, on 13 September 1189.   

Despite its apparent resemblance to Clause 24 of Magna Carta, this second order was less important for the sheriff’s jurisdiction than the first.  There had apparently been plans for nationwide investigations of official malpractices during the summer of 1194, but these were abandoned, no doubt because such inquiries could instead be left to the eyre, and it was with this in mind that sheriffs and ex-sheriffs were forbidden to act as justices, as a way of ensuring that none of the men who had been sheriffs since the beginning of Richard I’s reign was in a position to influence the forthcoming proceedings, at which many complaints against shrieval high-handedness or corruption during the previous five years could be expected to be made.  That the prohibition was intended to be a temporary one, made with a particular situation in mind, is suggested by its not having been repeated when a new list of crown pleas was drawn up for another eyre only four years later, in 1198.24  But the creation of the coroner took permanent effect, even though for some time the new office operated alongside the old one, with the sergeants continuing to fulfil their traditional functions for at least thirty years before they were completely superseded.25

The innovation probably had more than one purpose.  It could relieve the administrative burden on English sheriffs at a time when they were under continual pressure to provide the men and supplies needed to maintain Richard I’s campaigns in Normandy, while perhaps at the same time making the operations of local government a little less unpopular by ensuring that some of the tasks previously undertaken by the sheriff and members of his staff were now more expeditiously performed.  But the principal motive was probably financial, arising from the king’s desperate need to maximize all his revenues.  The coroner investigated and `kept’, that is, recorded, certain pleas of the crown, and by doing so provided the means whereby the issues arising from them could be secured for the crown.  Among the responsibilities transferred to the coroner, for instance, were the mandatory inquests held into accidental or violent deaths.  Their proceeds, whether they arose from suspects’ chattels or from the amercements imposed on communities which failed to attend, could plausibly be regarded as more likely to be secured if they were recorded on the spot by an official specifically charged with doing so, than if they were lumped together with all the other responsibilities of the sheriff, even if they were not also in danger of disappearing into that official’s pockets.

(e) Killers and thieves

The introduction of the coroner did not diminish the sheriff’s criminal jurisdiction, which by 1194 had probably long ceased to cover homicide, rather it clarified his role as an executive agent of the crown, working alongside the coroner to make arrests in the aftermath of the latter’s inquests – when King John granted two Somerset hundreds to Hugh of Wells in 1204, he specified that arrests or attachments arising from crown pleas were to be made by the coroners, while `when any prisoners are arrested in those manors and hundreds, justice upon whom pertains specially to our crown, they are to be delivered to the sheriff of Somerset or his officers, for them to hold and guard for as long as they ought to be in prison ...’.26  But that was to be the limit of the sheriff’s responsibilities.  He secured prisoners, and he investigated crime in his county at the periodic circuit known as his tourn, but though he could arrest and imprison the suspects named there, he did not try them.  In another charter from 1204, in which John disafforested the county of Devon, the king also ordered that the sheriff was to hold only one tourn each year, `unless for attaching crown pleas when they shall occur with the coroners and for safeguarding the peace, as long as on that visitation he takes nothing on his own behalf ...’. 27 Although the sheriff’s judicial authority where crown pleas were concerned had been steadily whittled away, his dealings with them were still such as to provide opportunities for corruption.

The evidence from John’s reign that sheriffs did hear pleas of the crown is very limited.  In an appeal of homicide from Yorkshire heard coram rege in 1208, proceedings culminated in a duel for which William de Percy, then sheriff, and Walter of Boynton, a former sheriff, were appointed justiciarii ad hoc, but their contribution to proceedings probably amounted to little more than overseeing the fighting, if indeed there was any (the outcome is not recorded).28  There may well have been more legal substance to a Rutland case heard coram rege early in 1210, concerning an unnamed man who was pursued and arrested for killing four men in the house of Robert Mauduit’s mother.  She was an important lady, the daughter of the earl of Huntingdon and Northampton, which may explain why knights of the county accompanied the coroners when they went to the scene of the crime.  The killer acknowledged his guilt, and was remanded to the next session of the county court, in case he should accuse others of acting with him in the deed.  But when the court assembled he did not do so, and was therefore sentenced to be hanged.  `And since this was a crown plea and they held it and did judgment on it without an order from the king and [without] justices being present, the whole county is in mercy.’29 

The case, and the offence, may not have been not quite as straightforward as they appear.  Had the killer been hanged immediately after his public admission of guilt, no further investigation of the case would probably have been found necessary – Bracton, some twenty years later, allowed the summary execution of one who was `arrested over the body of the dead man with his knife dripping blood’, describing this as `an ancient constitution’.30  But remanding the killer to gaol in the expectation of further proceedings removed the case from the jurisdiction of the county court, which was therefore acting ultra vires in sending him to the gallows instead of presenting him before the king’s justices, and which exacerbated its offence by ignoring an order to the sheriff to produce the prisoner coram rege,   The sheriff, Ralph de Normanville, was also in the king’s mercy, `as he handed that man over for judgment to be done on him without an order from the king, as that plea is a crown plea’.  The potential seriousness of the offence is shown by Ralph’s amercement (the only one recorded as having arisen from this case) having been set at forty marks, though in fact he was pardoned and paid none of it.31  Strictly speaking, he had not held the plea himself – it was by judgment of the county court that the killer went to the gallows – but as president of the court he had failed to stop proceedings going forward when he could have done so, and therefore bore the ultimate responsibility.

In ordinary circumstances homicide was unquestionably a crown plea, as it had been for well over a century.  The status of theft, however, may have been different, or at least uncertain.  In a charter of March 1190 granting Isaac, the son of Rabbi Josce, the right to have disputes between himself and other Jews settled according to Jewish law, Richard I had specifically excluded pleas of the crown, and named theft (latrocinio) among them,32 and an identical exception was made by John in a charter of 10 April 1201 which extended his brother’s grant to all members of the English Jewish community.33  But that theft could still be included among the sheriff’s pleas during John’s reign is suggested by recurrent payments by the sheriff entered on the pipe rolls pro juditiis et justiciis faciendis, a phrase explained by the Dialogus de Scaccario as involving trials and justice.34  On the pipe rolls they often occur alongside payments to approvers, self-confessed criminals who were maintained by the king at a penny a day, on condition that they accused and convicted their associates by defeating them in judicial combats (it was the possibility that the Rutland killer might do this that led to his being remanded after his arrest and admission of guilt).  The 1206 pipe roll, for instance, records trials and justice in twenty-one counties, or pairs of counties, and payments to approvers in nine of them, while in the following year twenty payments for trials and justice were entered on the pipe roll, with approvers appearing alongside them in eight cases.35  

Later in the thirteenth century such proceedings would be associated with gaol deliveries, and presided over by ad hoc commissions of justices appointed for the occasion, but commissions of that kind are very rarely recorded under John.  In 1207 three justices were ordered to assemble at Lincoln on 27 May to hear an appeal of robbery, and also to take assizes of novel disseisin.36  They may not in fact have heard the appeal, which was ended by a fine, but they must have tried the prisoners in the gaol, since two approvers were recorded on the pipe roll as having been paid a total of 22s. 4d. from the feast of Hilary (13 January), which at a penny a day would have covered their maintenance until exactly 27 May.37  The Lincolnshire entry on the 1207 pipe roll records payments to a total of nine approvers, and an outlay of 16s. on trials and justice, but the money may not all have been spent on a single session, for another approver was paid 6s. 10d. for his upkeep between 29 September and 21 December, and though it is possible that he succumbed to gaol fever, or simply escaped from prison, at the latter date, it is no less likely that it was then that he was brought out to confront those he had accused, and either failed to convict them, and was hanged, or overcame his former comrades and won the right to save his life by abjuring the realm.  Other entries from 1207 suggest multiple sessions.  Under Nottinghamshire and Derby, for instances, one approver was paid for 150 days, another for sixty-nine, two more for fifty-three, and one for 180.  They could all have run their course on the same day, but that seems improbable, especially as the cost of the year’s trials and justice was a relatively high 43s.38  In Surrey two separate payments for trials and justice were entered, suggesting that there had been two sessions there.39  In 1203 the sheriff of Warwickshire accounted for five marks, `for a plot of land in front of Warwick gaol bought for the pleas of the gaol ...’.40  There may have been other occasions, especially when the central courts were not sitting, when royal justices delivered gaols, but in the absence of more than the very occasional commission to this effect, it seems highly likely that `pleas of the gaol’ were synonymous with the trials and justice recorded on the pipe rolls, with an open space being needed, as at Warwick, for the fighting of duels by approvers, and that they were usually the responsibility of the sheriff, who was still empowered to exercise jurisdiction over cases of theft.

(f) Justice and finance: sheriffs as the king’s agents

Although it is possible that such a jurisdiction was coming to seem anomalous by the early thirteenth century, and may well have been as capable of abuse as any other of the sheriff’s powers, it seems improbable that that official’s ability to proceed against thieves by itself aroused feelings so strong as to generate a clause in Magna Carta.  A much more important factor must have been King John’s reliance on the sheriffs as financial agents, and particularly from his employment of them as justices, in proceedings which seem to have had little purpose beyond the raising of money.  The last normally-constituted eyres of the reign came to an end in the early summer of 1209, depriving the king of a valuable source of revenue, as well as of an agency of justice.  It must have been to remedy this shortfall that in the summer of the following year, while John was in Ireland, two judicial visitations took place; they seem to have been interconnected, and their purpose was all too evidently to make money.  For the first of them, apparently conducted only a few weeks before the second, the justices in seventeen out of twenty-four counties, as they were recorded on the pipe rolls, included either their sheriff or under-sheriff (and also a number of ex-sheriffs or men of comparable administrative experience, for instance a former constable of the Tower was a justice for London and Middlesex),41 and this figure is certainly incomplete, for another source reveals the sheriff of Berkshire as having also acted thus in his own county.  Indeed, it may well be that their sheriffs were justices in every county.42  Shortage of suitable manpower may have been one reason for their being appointed, but another is likely to have been their knowledge of the resources of the shires thus visited. 

It has been suggested that the first set of justices acted as `vacation judges to hear assizes and deliver the jails’,43 and this is given plausibility by what appears to be the only surviving record of their proceedings, which shows Matthew FitzHerbert, sheriff of Sussex, presiding over an assize of novel disseisin, and also by the amercements they imposed, which were of a kind, and on a scale, recognizably akin to those levied at conventional eyres.44  In each county the sheriff accounted for a lump sum made up of several individual debts, after which a few individual debts, almost always small, completed the entry.  But the follow-up, attributed to unidentified `autumn justices’ who visited the counties shortly afterwards, was far more severe in its fiscal impact, in a way which suggests that this second visitation was deliberately intended to complement the first, by targeting the well-to-do men of the shires, concerning whom, and their resources, the sheriffs would have been in a good position to provide information.  It is noteworthy that although a number of the men who acted as justices in the first visitation were penalised by the second, not one of the acting sheriffs who had been their colleagues suffered in this way – perhaps this was their reward for providing the autumn justices with advice about local conditions.  

There were no lump sums accounted for by sheriffs after the second visitation of the summer of 1210, and no debts owed by communities, only fines and amercements on individuals, levied at bruisingly high rates.  Sums of 100 marks or £100 were commonly demanded, while the largest sum exacted was as much as 500 marks.45   The offences were rarely defined with any precision - `trespass’ was by far the commonest.  In a number of cases the men concerned were pardoned part of their fines or amercements – as much as a half in many cases - but the residue might nonetheless constitute a significant sum, considerably higher, indeed, than was usually exacted for any offence described as `trespass.  Perhaps John thought that having demonstrated his ability to levy substantial sums in this way, he was bestowing a favour on the men thus targeted by not insisting on their paying the uttermost farthing.  But the fact that these men still owed considerable amounts, and did so for little or no apparent reason, probably aroused both fear and deep resentment against the king, and also against the sheriffs, who in acting as royal justices had been actively engaged in imposing, and then also implementing, these latest exactions.

(g) Hearing crown pleas

The sheriffs who acted as justices in 1210 had presumably been formally appointed, but there are indications that some of them were assuming judicial functions, and hearing pleas of the crown, purely on the strength of their office.  In this they were doubtless encouraged by the temporary disappearance of the eyre, which might otherwise have either heard the cases involved, or penalised such infringements of its own jurisdiction.  On 25 February 1213, in letters patent addressed to all his subjects in Lincolnshire and Yorkshire, John acknowledged that he had received many complaints of extortions and malpractices by his sheriffs and their underlings in those counties, which had moved him to appoint commissioners to investigate their alleged misdeeds and report on them to him.  At the very end of a detailed list of transgressions, almost as an afterthought, John ordered that `You are also to let us know which bailiffs have pleaded pleas which belong to our crown’.46  They could have been acting like the sheriff of Rutland in 1210, by taking cognizance of serious crimes.  But crown pleas was a term covering a wide range of activities, and provided ample scope for extortion as well as for usurpation of jurisdiction.  The sort of proceedings which were giving offence can perhaps be seen in a very small number of presentments made at eyres held after John’s death, concerning actions by officials either in the last years of his reign or in the very early years of his son’s.  One of them, reported at the 1218/19 Yorkshire eyre, did involve a felony.47  At some point between February 1216 and May 1218 one Osbert of Linton was killed in his house by unknown criminals.  Herbert le Scot, appealed of the death by Osbert’s widow, was brought into the county court, where the men of four villages convicted him of that and of numerous robberies, whereupon the sheriff, Geoffrey de Neville, `said that he was sufficiently convicted of that death and that they should hang him’.  The coroners asked nervously `if they could lawfully do this without the Justices of the lord king’, but Neville dismissed their fears, saying he had disposed thus of two criminals in Gascony (he had been seneschal there briefly in 1214), and so Herbert was hanged. 

At the eyre the Claro jurors said that Herbert had been arrested with a horse, by implication one he had stolen, and had he been charged as a thief caught in the possession of stolen goods, the county court might have been justified in having him executed, since it could lawfully exercise jurisdiction in such cases.  But no more in Yorkshire than in Rutland could a shire court do judgment upon an alleged killer who had not been caught literally red-handed, with or without the encouragement of the sheriff.  At the time of the eyre Neville was once more in south-west France, while the county court was not fully represented when this case came to light, causing the justices to defer giving judgment upon it, and it is not known what decision they reached, but they are unlikely to have approved of what was done.  Neville was a loyal supporter of King John, and the same was true of other officials said to have dealt with pleas of the crown, albeit of a different kind.  Thomas of Erdington, a long-serving under-sheriff and sheriff of Shropshire and Staffordshire who died in 1218, was said in 1221 to have held crown pleas, `namely touching the hue and cry’,48 probably indicating that he had taken money from communities which had failed to raise the hue, or to pursue suspects after the hue had been raised, instead of leaving it to justices itinerant to impose appropriate penalties.  In the same year similar allegations were made against some of King John’s former henchmen in Gloucestershire.  When an unknown man was found dead on Compton heath, apparently from natural causes, Engelard de Cigogné, who was sheriff from 1210 to 1215, was said to have `held that plea’, and to have taken a total of twenty-two marks (£14. 13s. 4d.) from two vills – probably he acted as coroner, and amerced the vills for inadequate attendance, or presentments, at the inquest he held.49  And after one Robert of Tetbury had been arrested on an approver’s appeal and placed in the custody of the men of Tetbury, his subsequent escape led to Engelard’s taking 100s. from them, this being the standard amercement for such escapes.  The justices at the 1221 Gloucestershire eyre called for judgment on him `as he held the plea’ – as Thomas of Erdington seems to have done, he had exceeded his powers by himself amercing failings which should have been dealt with by the king’s justices at the next eyre.50

In two presentments  Engelard de Cigogné was associated with Gerard d’Athée, another of John’s captains, and also Engelard’s immediate predecessor as sheriff – they had made requisitions (prisis) `by reason of crown pleas’, and they had `taken ransom for all crown pleas’.51  It was not suggested that they had been holding unlawful courts at which killers and bandits were unjustly condemned and hanged.  Again, their offence almost certainly lay rather in their exploiting the opportunities which their office gave them for making money out of the administrative practices associated with the pleas of the crown.  They extorted money from communities and individuals for releasing them from their obligations, anticipated the king’s justices in penalising those who had not fulfilled their responsibilities, and probably also took bribes for releasing to bail suspects who should have been remanded to gaol.  The sums they raised, where recorded, were generally larger then those usually exacted by royal justices, ranging from ten marks (£3. 13s. 4d.) to twenty-one marks (£14). 

Taken together with John’s employment of sheriffs in the almost overtly exploitative eyres of 1210, the recorded conduct of the sheriffs of his reign suggest that it was the fear of extortion and corruption, at least as much as the likelihood of inadequate justice, which caused the barons to decide in 1215 that the only way such misconduct could be prevented in future was the simple one of prohibiting all involvement by royal officials in the holding of pleas of the crown.  There was no geographical restriction on the clause’s implementation, as there had been in 1194, it was to apply throughout the realm, suggesting that sheriffs, in particular, were seen as likely to be too much the king’s men to be trusted anywhere with the jurisdiction in question.  The status of theft may still have been indeterminate in 1215, but it undoubtedly soon joined the other crown pleas, and thereafter, since Clause 24 was carried over into all the subsequent reissues of the Charter, it remained outside the sheriff’s control.

1

It became Clause 8 of Magna Carta.

2

L.J. Downer (ed.), Leges Henrici Primi (Oxford, 1972), 109 (c.10.1)

3

W. Stubbs (ed.), Chronica Rogeri de Houedene, 4 vols. (Rolls Series, 1868-71), iii, 263-4.

4

For this process see R.C. van Caenegem, `Public prosecution of crime in twelfth-century England’, in id., Legal history: a European perspective (1991), 1-36, at 11-12; D.M. Stenton, English justice netween the Norman Conquest and the great Charter, 1066-1215 (1965), 65-7; J. Hudson, The Oxford History of the laws of England ii: 871-1215 (Oxford, 2012), 266-9.

5

G.M. Garmonsway (ed. and trans.), The Anglo-Saxon Chronicle (1960), 254.

6

PR 14 Henry II (1168), 29-30.

7

PR 16 Henry II (1170), 149-50.

8

W. Stubbs (ed.), Select charters ... from the earliest times to 1307 (9th edn., revised by H.W.C. Davis, Oxford, 1913), 170-3.

9

J.C. Holt, `The assizes of Henry II: the texts’, D.A. Bullough and R.L. Storey (eds.), The study of medieval records: essays in honour of Kathleen Major (Oxford, 1971), 85-106, at 101-6.

10

E. Mason (ed.), The Beauchamp Cartulary charters, 1100-1268, Pipe Roll Society, new series 43 (1980 for 1971-3), no. 172 (p. 101).

11

L. Delisle and E. Berger (eds.), Receuil des actes de Henri II, i (Paris, 1916), 133-4.

12

G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 3-4

13

E.Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 152-3.

14

Stubbs, Select charters, 179-81.

15

R.C. van Caenegem (ed.), English lawsuits from William I to Richard I, 2 vols. (Selden Society 106-7, 1990-1), ii, 507-14.

16

PR 26 Henry II (1180), 72.

17

ib., 55; PR 31 Henry II (1185), 70.

18

PR 31 Henry II (1185), 182; PR 32 Henry II (1186), 189.

19

See P. Brand, The origins of the English legal profession (Blackwell, Oxford, 1992), 14-17.

20

PR 1 Richard I (1189), 103.

21

Stubbs, Select charters, 176-7.

22

J. Gillingham, Richard I (Yale, 1999), 115-16.

23

ib., 270.

24

Chronica Rogeri de Houedene iv, 61-2.

25

Details in R.F. Hunnisett, The medieval coroner (Cambridge, 1961), 1-8.

26

T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot. Chart.), 129.

27

ib., 132.

28

Curia Regis Rolls v, 1207-1209 (1931).  Strictly speaking, Percy and Boynton were under-sheriffs, but they clearly exercised all the sheriff’s responsibilities in the county.

29

Curia Regis Rolls vi, 1210-1212 (1932), 10.

30

S.E. Thorne (ed.), Bracton on the laws and customs of England ii (Cambridge, Massachusetts, 1968), 386 (fols. 137, 137b).

31

PR 12 John (1210), 213.

32

TNA, C 52/21 m. 3.  The entry is badly stained, but latrocinio can be read under ultra-violet light.

33

Rot. Chart., 93.

34

Dialogus de Scaccario, 130-1 (in iusticiis et iudiciis explendis).

35

Details from PR 8 John (1206) and PR 9 John (1207), passim.

36

T.D. Hardy (ed.), Rotuli litterarum clausarum, 1204-1224 (Record Commission, 1833), 83.

37

PR 9 John (1207), 15.

38

ib., 114.

39

ib., 64.

40

PR 5 John (1203), 28.

41

Details from PR 13 John (1211), xxxiv-xxxvj.

42

D.M. Stenton, Enlish justice between the Norman Conquest and the Great Charter, 1066-1215 (1965), 105-6.

43

ib., 106.

44

Curia Regis Rolls vii, 1213-1215 (1935), 263-4.

45

PR 12 John (1210), 213.  The purpose and impact of the proceedings by the `autumnal justices’ in 1210 are discussed in detail in the commentary on Clause 20.

46

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835), 97.

47

D.M. Stenton (ed.), Rolls of the justices in eyre for Yorkshire, 1218-19, Selden Society 56 (1937), no. 744 (pp. 276-7).

48

D.M. Stenton (ed.), Rolls of the justices in eyre for Gloucestershire, Warwickshire and Staffordshire, 1221, 1222, Selden Society 59 (1940), no. 1262 (pp. 544-5).

49

F.W. Maitland (ed.), Pleas of the crown for the county of Gloucester, 1221 (1884), no. 93.

50

ib., no. 227.

51

ib., nos. 108, 156.


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Original Latin

XXV

Omnes comitatus, hundredi, wapentakii, et trethingii, sint ad antiquas firmas absque ullo incremento, exceptis dominicis maneriis nostris.

25

All counties, hundreds, wapentakes and ridings are to be at their old farms, without any increment, except for our demesne manors.

Audio commentary

Referenced in

The regency government of Peter des Roches (The Itinerary of King John)


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Original Latin

XXVI

Si aliquis tenens de nobis laicum feodum moriatur, et vicecomes vel ballivus noster ostendat litteras nostras patentes de summonitione nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel ballivo nostro attachiare et inbreviare catalla defuncti inventa in laico feodo, ad valentiam illius debiti, per visum legalium hominum, ita tamen quod nihil amoveatur, donec persolvatur nobis debitum quod clarum fuerit; et residuum relinquatur executoribus ad faciendum testamentum defuncti; et, si nihil nobis debeatur ab ipso, omnia catalla cedant defuncto, salvis uxoris ipsius et pueris rationabilibus partibus suis.

26

If anyone holding a lay fee of us dies, and the sheriff or a bailiff of ours shows our letters patent of summons for a debt which the dead man owed us, it is to be lawful for the sheriff or our bailiff to attach and record the chattels of the deceased found on the lay fee to the value of the debt, by the view of law-abiding men, so that nothing is to be removed thence, until the clear debt is paid to us; and the residue is to be relinquished to the executors to carry out the testament of the deceased; and if nothing is owed us by him, all the chattels are to go to the deceased, but reserving their rightful shares to his wife and children.

Audio commentary

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Commentary for academic researchers

(a) The problem of dead debtors

Like Clause 9, Clause 26 was primarily concerned with debts to the king, but this time with those of the dead, and only when they were tenants-in-chief; it also addressed the issue of the latter’s testamentary rights.  It was based on no. 15 of the Articles of the Barons, but was made more precise when the Charter was drawn up, stating twice that the lands affected were to be those held by lay tenure (the Article spoke only of `anyone holding of the king’, which could have led to estates held in frankalmoign being brought within its compass), and requiring that the king’s officers must show a lawful warrant before entering on the property of the deceased.  It added, too, a phrase safeguarding the rights of spouses and children when setting out how such chattels as the king had no claim upon were to be distributed.  There is no obvious reason for Clause 26 being placed where it is, either among the Articles or in Magna Carta itself.  The logical place for it might appear to have been alongside Clause 9 (Article 5), which also dealt with debts to the king, and which itself followed a sequence of clauses safeguarding the rights of minors and widows.  Perhaps its having been separated from these indicates that the drafters regarded its provision concerning testaments as its more important component, and kept it apart from other more specifically financial clauses for that reason.  It is immediately followed by a clause dealing with the chattels of free men who died intestate, but is otherwise unaccompanied by similar material.

A comparison of what is recorded, or can be deduced, of the activities of the king’s agents under John with the two parts of Clause 26 suggests that it was concerned with practices which were increasingly regarded as unacceptable, but which had been allowed to develop to an objectionable extent because no formal protocols had been devised which could act as a consistent restraint on royal authority.  They were doubtless felt all the more keenly because, by being implemented shortly after the deaths of tenants-in-chief, they caught the latter’s heirs and dependents at a potentially vulnerable time.  As far as deceased crown debtors were concerned, the Dialogus de Scaccario had nothing more to say than that `the legitimate heir who succeeds a debtor should always be summoned, so that he takes up the burden along with the reward ...’,1 suggesting that late in Henry II’s reign procedure was still likely to be an ad hoc affair.  That it became at least potentially more settled during the next two reigns, indeed not far removed from the terms of Clause 26, is suggested by the deal made in 1203 by Robert Bardolf, under which he agreed to pay £1000 for the lands of his brother Hugh, a distinguished royal justice and administrator.2  First of all, the terms at which the money was to be paid were laid down, specifying that it was to be handed over in six instalments, of variously £100 or £200 each, with the last falling due at Michaelmas 1205.  Upon this all else depended, for it was directed that all Hugh’s debts, to the king and everyone else, were to be paid before his chattels were distributed – partita sint.  The reference to distribution shows that the fulfilment of Hugh’s testament was at issue, and perhaps this gave urgency to subsequent proceedings, for the king’s stringent terms were in fact met, with Robert Bardolf’s payment of the money due from him for his brother’s lands being recorded as complete on the 1205 pipe roll.

The administrative terms of the deal shed some valuable light on the way the debts left by an important figure like Hugh Bardolf were, or could be, dealt with.  It must have been the value of the chattels, rather than the chattels themselves, which was referred to, since it was ordered that Hugh’s crops and chattels were to be sold under the supervision of Reginald of Cornhill, a leading figure in John’s administration, and of Robert himself.  Robert could buy them if he wished, as long as he paid as much as anyone else was prepared to give – in other words, he would have to match the highest bidder.  But so that the king should know what Hugh had owed him, nothing was to be removed until the dead man’s bailiffs had submitted their accounts, presumably at the exchequer (on a few occasions money towards such debts was paid into the king’s chamber, but the sums were still recorded on the pipe rolls).3  Only after the accounting was complete was the king’s order for the disposal of Hugh Bardolf’s estate to be carried out, at which point Robert was to have the chattels due to him as his brother’s heir (a provision which suggests that the procedure laid down by Glanvill was still in force, giving Robert a claim on half of Hugh’s moveable goods as well as on all his lands, while the rest of the goods went to his widow).   The king also ordered that in accordance with the custom of England all Hugh’s debtors were to be required to pay the debts that his bailiffs could show were owed to him, and moreover that Hugh’s testament was to be implemented.

The most important difference between these terms and the procedure laid down in Clause 26 is the absence of any reference to the `letters patent of summons’ prescribed in the latter – from the fact that Hugh’s bailiffs were required to submit accounts, `so that from them the king may know how much he owed the king and how much [he did] not’, it is clear that the king’s officers could be required to descend upon the estate of a putative crown debtor without knowing what he owed the king, or perhaps even if he owed anything at all.  For those who had inherited such estates, the result could be quite literally devastating.  A formal summons (which seems in fact to have taken the form of letters close of summons, no doubt based on information provided by the exchequer) would not compromise the king’s rights, but by preventing unseemly haste it could bring order into proceedings, and also clarity, since although no examples of such letters are known to survive, they would doubtless have set out the amount owed, thereby ensuring that the dependents of the dead man were not taken at a disadvantage following his death and had some means of control over the taking of goods.  Without such information, heirs and executors would hardly have been in a position to enforce the Charter’s stipulation that the king’s officers were only to commandeer goods to the value of the debt owed to the crown.  But the reference, in the Bardolf case, to the sale of goods under supervision suggests that some sort of inventory was taken, and this is in line with a number of other references to views being made and inventories taken when property came into, or indeed left, the king’s hands during John’s reign.

(b) Inventories and debt collecting

Thus in 1204 the king gave order on behalf of Isabella de Mortimer, who had bought possession of two manors previously held by her brother, that the sheriff of Gloucestershire should give her seisin, `excepting the chattels from those lands which he is to have taken into the king’s hand and guarded safely by view of the sheriff’s serjeant and of Isabella herself ...’.4  The taking of an inventory is implicit in the king’s order to the sheriff of Norfolk of January 1205, that he should entrust two Stuteville manors to William de Cantilupe and also `let the king know what chattels he received there and how much they are worth’,5  and explicit in the grant, made a few months later, to Ralph de Berners of the farm of the Dorset manor of Winterbourne Strickland, following its forfeiture by Coutances Cathedral in Normandy - the sheriff was ordered `to have the corn and sheep and oxen and other stock found there valued by the view of law-abiding men and handed over to Ralph at that price ...’.6  Before the king returned the Oxfordshire manor of Chalgrove to Hugh de Malaunay in 1212, the exchequer had received exact information from its tenants about all its livestock, its crops and its staff.7  The word in the Charter translated as `record’ was also employed in the order sent to every English sheriff in 1214, that `all the things and chattels of Flemings be recorded (imbreviari) in your bailliwick and kept in safe and secure custody’ (when it was also commanded, as in the Charter, that nothing was to be removed).8

It was desirable that an inventory should always be made, and by reliable people, whom the Charter presumably wished to differentiate from the officials occupying a dead man’s estate; otherwise there was a danger (implicit in the order that only goods to the value of the debt were to be attached and listed) that more would be taken than was necessary, leaving the heirs of the deceased without redress because they could not show what had been removed.  And it was no less important, if the process of levying a debt was not to be little more than a smash-and-grab raid, that the king’s officers should first have received a formal and appropriately detailed warrant to act.  Since it was so difficult for any person of rank or standing to avoid falling into debt to the king, and given the latter’s financial needs, there may well have been a well-nigh automatic tendency for the royal officers to occupy a tenant-in-chief’s lands following his death, on the assumption that he or she must have died owing money to the crown, whose interests therefore had to be protected.  When the Cumberland baron Hugh de Morville died in 1202, the royal henchman William Brewer undertook to pay 500 marks to have the marriage of Hugh’s heir, with the disposal of her inheritance, `and for having the issues of the same lands and chattels which were Hugh’s and which are not in the king’s hand or which he did not bequeath in his testament ...’.9  Brewer, who knew as well as anybody how such matters were handled within John’s administration, clearly took it for granted that lands and chattels alike had been commandeered on the king’s behalf, even though Morville was not in fact recorded as having been significantly in debt, owing a total of £15. 16s. and two war-horses.10

Where the estates involved were modest in size, the task of securing the chattels on it was probably left to the sheriff.  After the death of the Berkshire landowner Roger de St John, around 1213, Geoffrey de Lucy undertook to pay 300 marks for the wardship and marriage of Roger’s heir, on condition that whatever had been taken from the estate should be allowed him as part of the fine.  The sheriff of Berkshire proceeded to account for £35. 2s. 9d. from the dead man’s chattels, which he had taken even though there is no clear evidence that Roger owed anything to the crown when he died.11  It was probably under the supervision of the sheriff of Lincolnshire that men described as `the king’s serjeants’ were keeping watch over land formerly held by Thomas son of William of Saleby when Adam de Neville gave twenty marks so that his own serjeant could join them, to prevent damage to his crops and livestock there.12  But where important properties, or the properties of important people, were involved, the task of managing their disposal was likely to be entrusted to royal agents specially appointed for the purpose.  In 1203 it was two royal clerks who accounted to the exchequer for the issues over six months of the lands of William de Stuteville, lord of Boroughbridge, Cottingham and Knaresborough, and a past sheriff of Cumberland and Yorkshire, in a demonstration of what could follow from the occupation by the king’s agents of the lands of a deceased tenant-in-chief.13

William had been both a powerful figure in the north and a substantial royal debtor, owing arrears from his offices as well as individual debts amounting to over £1000.  The response of the king’s men seems to have been little less than an exercise in asset-stripping, accounting for sales of grain from  eighteen different estates and for a wholesale disposal of livestock; as well as 392 cows, 1719 sheep, 1016 lambs, sixty-seven pigs, and a variety of other animals, they also sold sheepskins valued at £9. 1s. 6d., the hides of seventeen horses, and even half a ship - nothing appears to have escaped their attention.  Along with rents and other seigneurial dues, they accounted for a total of nearly £1250, out of which just 50s. were spent on the dead lord’s exequies.  William had left an under-age heir, and it is not surprising that when in July 1203 Archbishop Hubert Walter paid 4000 marks to have custody of the youth and all his lands for the next four years, he should have also taken care to obtain the grant of `all the ploughs found on the aforesaid holdings ...’.14

In this the archbishop showed himself prudent, no doubt appreciating that otherwise he might well have obtained the lands without the means of cultivating them.  It would seem that everything on a debtor’s property, crops and livestock as well as furnishings and valuables, was in principle at the king’s disposal, and remained so until the debt was cleared.  This is understandable, since the stock on an estate, however defined, clearly constituted a significant proportion of its value.  This can be seen in a list of five Wiltshire and Dorset manors drawn up in 1212, apparently to enable the earl of Winchester to implement his mother-in-law’s testament, in which each was assessed `with stock’ (cum instauro) and `without the stock pertaining to that manor’.15  The differences varied somewhat between manors.  Haxton, for instance, was worth £25 stocked and £17 unstocked, while the value of Collingbourne Ducis fell from £34 to £20 when its stock was not included.  Altogether, the difference in value amounted to almost exactly thirty-three per cent, £82 compared with £124.  No doubt it was regarded as desirable that an estate should be handed over to an heir or widow as a going concern, but the king was under no obligation in this respect, and no doubt wished to maximize what could be valuable assets.  So when in 1204 Lauretta de Fontibus paid 100 marks for the lands of her niece, the sheriff of Somerset was ordered to withhold the crops and chattels, albeit with the cynical rider that `if she wishes to buy them as they have been lawfully valued, the king wishes that she may have them rather than anyone else.’16  And when the lands of the count of Perche were granted to his widow in 1207, in return for a 2000 mark fine,17 it seems reasonable to assume that the exception from the sale of corn of the countess’s reserve stock (estuverium) constituted part of the deal she had made with the king, rather than an enlightened concern on the latter’s part for the future viability of the estate.

A case like that of Walter de Clifford, who in 1213 gave 100 marks and a palfrey for the custody of the lands and heirs of his brother Richard, and secured a directive to the sheriff of Gloucestershire `that he should cause Walter to have hay for this, the fifteenth year, and seed to sow the land’,18 along with a few other examples of lands being handed over (in return for payment) together with their crops and livestock,19 by their very rarity show that the principal concern of the king’s officers was to obtain payment of debt, and that they were not concerned about what happened to properties afterwards.  No doubt there were occasions when lands were surrendered to heirs and executors in good working order, but there must also have been times when debts were finally cleared by the reaping of crops and the removal of plough animals.  Those who made fine to recover their inheritances, it may be assumed, had to be ready to proffer larger sums if they were negotiating in or near the harvest season.  What might happen otherwise is shown by the fate of the Stuteville lands and by Archbishop Walter’s precautions, and summed up in the undertaking given in 1208 by Robert de Vieuxpont, a leading royal agent in the north of England, to account for obligations to the crown which included `all the chattels and stock and crops on the land of Ralph Tessun ...’.20  It is not surprising that processes which could have such an impact were bitterly resented, and aroused a determination to bring them under control.

(c) Wheeling and dealing

Perhaps the extent of William de Stuteville’s indebtedness was regarded as justifying the intensive exploitation of his possessions by the king’s officers, as it may have been in similar cases.  When, for instance, Roger de Lacy, constable of Chester, died in 1211 owing over £400 to the king, his lands were treated hardly less severely than Stuteville’s had been, producing just over £1500 for the crown in the twelve months which followed, with nearly £200 coming from sales of crops and livestock.21  Since Roger’s heir was granted £50 for his maintenance he was probably a minor, and so badly equipped to try to bargain with the king in order to protect his expectations.  But many others did make a deal with King John, on terms which show how anxious they were to keep the royal bailiffs away.  Some were widows, who had other interests to defend, and took the opportunity to strike a single bargain protecting all of them.  Thus in 1204 the countess of Warwick agreed to pay £1000 and ten palfreys (in effect, another fifty marks) to be able to remain a widow, to have the wardship of her children, for possession of £60 worth of lands given to her by her late husband, for her dower, `and for having the chattels of the said earl, saving his rightful testament and saving the debts owed to him and to his heir ...’.22  Although Earl Waleran had played little part in public affairs, he owed nearly £375 to the crown at his death, mostly for scutages,23 so the king’s demands on his moveables could have been considerable.  Roger de Somerville, a Staffordshire landowner, whose widow Isabella made a similar bargain in 1212, paying 100 marks and a palfrey in 1212 not to be compelled to remarry, to have the wardship of Roger’s heir, for her dower, `and for having all the chattels which were her former husband’s on the day of his death’, was a much lesser figure, with much smaller debts – a total of £9. 3s. 4d. – but clearly that did not make the prospect of a visitation by the king’s bailiffs any less unwelcome for his widow.24

In such cases King John made a deal with his subjects who offered to treat with him, on such terms as suited his needs, or even, perhaps, his mood.  Thus the justiciar, Geoffrey fitz Peter, was probably exploiting his closeness to the king when in 1210 he was able to proffer 200 marks for the lands of William de Lanvallei, a baron in Essex and Hertfordshire, and his widow Hawise, `with all their chattels, having counted within those 200 marks the things which were taken thence, together with the money received from the chattels he sold’ – in the same year the amalgamated debts of William and Hawise were recorded as amounting to £190. 6s. 8d., suggesting that a man who carried less weight in the government than Geoffrey would have had to give more.25  Political considerations might also have to be taken into account.  When William de Forz, count of Aumale, was about to come into his inheritance in September 1214, he received a number of related concessions from King John – not only were his mother’s substantial debts to the crown (a total of £2333 6s. 8d.) remitted, but `Also all the oxen, cows and sheep which our bailiffs have taken from his land, after it came into our hands, and have been turned to our use, we will have given up to him ...’.26  Since William was hereditary lord of Holderness and Skipton in Yorkshire and Cockermouth in Cumberland, the increasingly embattled King John no doubt felt that his support was worth buying, given the preponderance of northern lords among his adversaries, and indeed his attempts at political bribery may well have paid off, since although Aumale was one of the twenty-five barons who swore to uphold Magna Carta, he had moved into the royalist camp by August 1215, and with one brief intermission stayed there until the king died.

Less clear-cut, except in representing another instance of a landowner trying to protect an inheritance from exploitation, was the case of Margaret de Vernon, who in 1205 gave forty marks and a palfrey to have her inheritance at Freshwater on the Isle of Wight, which had been in the king’s hand since the death of her husband, the Oxfordshire baron John Arsic.  When the sheriff of Hampshire received orders that `if any chattels or stock were removed from that land after it came into the king’s hand, he was to have them handed over to her,’, this considerate gesture may have owed less to the fact that John Arsic’s debts to the king at his death amounted to only £38, just £9 more than his widow’s fine, than to Arsic having in 1203 proffered £100 for having temporary possession of Freshwater should his wife predecease him.27  Despite his needs, even King John may have hesitated to make further demands upon an estate for which he had now been paid twice in three years.

(d) Testamentary procedures

As so often, one of the aims the barons were trying to achieve in 1215 was the bringing of a measure of routine, of predictability, into the workings of government, so that these should no longer be manipulated in accordance with the passing needs or personal caprice of the king.  But they also had distinct rights in mind which they wished to defend or define, and one of them, set out in Clause 26, was that of bequeathing their moveable goods in accordance with what was becoming the custom of the realm, by ensuring that once any debts to the king were paid, the residue of a testator’s chattels were disposed of as he or she had intended, and of providing for the disposal of those chattels where there were no debts to be taken into account.  In this, it gave expression to a long-held desire, set out over a century earlier in Henry I’s charter of liberties of 1100 - `If any of my barons or of my men falls ill, so that he wishes to give away or bequeath his moveables, I will concur in what has been so given ...’28 – and reiterated in the `unknown charter’, seemingly a product of the negotiations leading up to the Charter - `If it happens that a baron or man of mine dies, I grant that his moveables may be bequeathed as he bequeathed them ...’.29  It was not stated in so many words, but surely implicit in the second section of Clause 26 was the belief that the rights which it granted were ones which should be had for nothing, and with which the king had no business to interfere.

It was one of the idiosyncrasies of English procedure that it made a distinction between real estate, which (except in boroughs) could not be devised by will, and which mostly descended by primogeniture, and moveable goods, which within certain limits could be freely bequeathed by testament.30  It was also customary in England – and seemingly accepted by Magna Carta, when it referred to `rightful shares’ - for a testator’s goods to be divided into three equal parts, with a third each going to the heir (later the children, who shared their portion equally) and the widow, while the last third was at his own disposal.  The fact that this last third was expected to be used for religious purposes, in bequests directed towards ensuring the salvation of the testator’s soul, gave urgency to the implementation of his or her bequests – nothing less than the fate of eternal souls might be at stake - and also helps to explain why the church (though in this, too, English practice was out of step with that found elsewhere) gained a large measure of control over the administration of testaments, and over any lawsuits that resulted from them.  Glanvill, written in the late 1180s, took it for granted that `pleas concerning testaments ought to be dealt with before an ecclesiastical judge ...’.31  The fact that the three-part division appears to have been an ancient one, recorded in Northumbria by Bede,32 does not mean that testatory procedure had become completely fossilised, indeed, Clause 26 itself demonstrates the contrary, for whereas both the Assize of Northampton (1176) and Glanvill had allotted the leading role in the disposal of a testator’s goods to his heir,33 Magna Carta stressed that it was the executors, who had previously played only a subsidiary part, who were now `to carry out the testament of the deceased’.

Evidence is sparse for the treatment of children and dependents, but sufficient to suggest that their rights were respected, but also, from the fact that a number of those affected thought it worth their while to pay the king to confirm or uphold those rights, that there was a fear – implicit in Clause 26 itself - that they might otherwise be disregarded.  Thus in 1201 Cecilia, the widow of Roger de Cressy, was recorded as owing forty marks and a palfrey for her dower, for not being forced to marry, `and for having her rightful share of Roger’s chattels’, and in the same year Matilda, widow of Adam son of Enisant, accounted for sixty marks and a palfrey for her dower, `and for having her rightful share of the chattels which were her husband’s ...’.34  When the heir was both an only son and a minor, his share of the chattels might be needed for his own upkeep, hence the lawsuit brought by Fulk Bainard against Hugh of Kerdiston in 1206 for the custody of the lands and heir of Hugh’s brother Roger, `with the chattels pertaining to the heir’ - Fulk defined those chattels as `corn in the ground, for the custody of the children and to perform the service of the land’ (the reference to children may indicate that Roger had sisters).35  In this case the heir was the dead man’s son, and Clause 26 seems to have taken it for granted both that the same regulations would apply regardless of whether the heir was of full age or a minor in wardship, and that heirs and issue would be one and the same.  Glanvill, however, had in the latter context referred only to the heir, allowing for the possibility that a tenant-in-chief’s successor, in his goods as well as in his estates, might not be his son, and in this the treatise was realistic.  In 1203 Robert Bardolf was granted those chattels of his bother Hugh which were due to him as the latter’s heir, and when Simon Wake, a minor tenant-in-chief in Wiltshire, died in 1206 owing the king five marks for a licence to hunt foxes, it was his brother Geoffrey who covered all possible eventualities by fining by 200 marks to have Simon’s lands, `and for having his rightful share of Simon’s chattels which pertain to him as Simon’s heir ...’.36  There were possibilities where inheritances and testaments were concerned which the drafters of Magna Carta overlooked, and which subsequent revisions ignored.

(e) The rights of bishops

Those charged with implementing the testaments of the deceased, whether heirs or executors, would naturally have to have to have free access to and disposal of the chattels which testators bequeathed.  The principal obstacle to their doing so was royal power, which as so often manifested itself in inconsistent, even contradictory, ways, as it sought ways of meeting the king’s financial needs.  Adam of Eynsham, in his life of Bishop Hugh of Lincoln, recorded the activities of the king’s agents, apparently including his `chief ministers’, in intercepting legacies, describing them as a `kind of water-fowl, these birds of prey, who lie in wait for the sick ...’, and described how the bishop both repeatedly denounced them and also had them excommunicated at what appears to have been a session of the royal council, in this last having King John’s full approval.37  An important element behind Hugh’s activities was his anxiety that his own testament should be implemented, an anxiety confirmed by Roger of Howden, who recorded how John visited Hugh on the latter’s deathbed, confirmed his testament, and promised that those of other bishops would be similarly ratified.38

John appears to have honoured this undertaking.  Indeed, on 30 October 1199, even before he made his promise to Hugh, he confirmed the testament of Archbishop Hubert Walter, and he did so again in 1203 (Hubert made a new testament each year).39  When Bishop Savaric of Bath and Glastonbury went on embassy to Rome in December 1200, he departed with an assurance from the king that should he die while abroad, his testament would be observed,40 while in 1207 John gave orders that the executors of recently-deceased bishops of Exeter and Chichester should be permitted to implement the testaments of those two prelates.41  In 1204 he confirmed the testament of Godfrey de Lucy, bishop of Winchester,42 and also issued letters patent directing that the bishop of London’s testament be observed;43 later he did much the same for the bishops of Rochester (1213)44 and Ely (1215), in the latter case even instructing the sheriff of Norfolk and Suffolk to distrain debtors to Bishop Eustace to pay what they had owed him to his executors, so that his testament could be fulfilled.45  The fact that up to his death in November 1215 Giles de Briouze, bishop of Hereford, had been a committed opponent of the king did not prevent John’s ordering the sheriff of Gloucester to cause Briouze’s executors to have his goods from the manor of Tetbury, so that his testament could be implemented.46

All the same, Hugh had been right to be anxious.  One possible complication lay in the claims that might be made on the property of a dead bishop on behalf of his own diocese, as a result of the practice whereby what has been described as `a permanent system of minimum endowment’, intended to ensure that supplies of corn, cattle and agricultural gear were carried over from one episcopate to another, came to be established.47  Though first recorded as such in 1222, the fact that when Simon of Wells, bishop of Chichester, died in 1207, the king ordered the keepers of the vacant diocese to allow the administration of Simon’s testament, `saving the livestock and other chattels and things which he found in the same bishopric’,48 suggests that such an endowment already existed at Chichester, and may have done so elsewhere.  But of much greater concern to Hugh must have been the crown’s right to occupy the estates of vacant bishoprics, which could easily prevent a dead bishop’s executors from going about their business, and the fact that bishops were themselves also barons, whose estates were therefore as liable to sequestration for debt as those of lay tenants-in-chief - in 1208 the bishop of Durham’s executors accounted for 2000 marks and all his plate `for the debts which the bishop owed the king, and for the amercements which he had incurred, and for the misdeeds of his kinsmen for which they were arrested ...’.49

(f) The king’s involvement

Although this last case might suggest otherwise, it does not in fact show – rather the contrary – that the king had forbidden the implementation of Bishop Philip’s testament.  Nor indeed is there convincing evidence that testators usually needed either licence or confirmation from the king to validate their bequests, though a few examples survive to show them obtaining such ratification.   King John’s empowering Eleanor of Aquitaine, his mother, to make a testament,50 and confirming that of Isabella of Gloucester, his ex-wife (four years before her death),51 probably reflected their close relationship to himself, while his ordering his agents to permit the execution of the testaments of such great men as Robert de Breteuil, fourth earl of Leicester, and Geoffrey fitz Peter, earl of Essex, may have constituted posthumous rewards for distinguished servants.52  Where bishops and laymen alike were concerned, their problem was the one inherent in the overall treatment of debts, namely that of keeping as many of their goods as possible out of the hands of the king’s agents, and of recovering such goods as had been unavoidably sequestrated once it could be shown that they ought to be returned.  Where the king’s role is recorded (rather tangentially, as often as not), it was usually less that of a licenser of testaments which were yet to be drawn up, than of an upholder of testaments which had already been made, and whose execution might be imperilled by the activities of his own officials.  This was already the case under Henry II – in 1188, for instance, the heirs of Richard Goldenere, a tenant of the honour of Gloucester, paid ten marks `for having their father’s bequests ‘53 – and remained so afterwards.

There were occasions, however, on which the king became involved in the implementation of testaments.  When tenants-in-chief made fine to have livery of their inheritances, along with any associated moveables, salvo rationabili testamento, they were in effect giving an undertaking to the king that the deceased person’s testament would be put into effect.  When, for instance, John Marshal undertook in 1211 to pay 100 marks and a palfrey for an Oxfordshire wardship, he was to receive `all the chattels which were Alan’s, saving his rightful testament’, implying that the testament was to be implemented from the goods of Alan son of Roland, and that John was to receive whatever was left, in a deal which, because it was made with the king, gave the latter the right to oversee it, and perhaps to enforce it.54  Similarly when Thomas, son of the royal justice Ralph of Arden, proffered £1000 in 1210 for the lands of his father (who had died in debt to the crown, though not to the amount of the fine), `and for having the chattels which were Ralph’s to implement his testament ...’, the bargain effectively gave the king an interest in the execution of the testament, while leaving the responsibility for it with Thomas.55 More explicitly, when in 1212 King John gave the custody of the lands of the Yorkshire baron Robert de Ros, who had (briefly) become a monk, to Philip of Oldcoates, he ordered the sheriff of Yorkshire to entrust Robert’s chattels to Philip as well, salvo inde rationabili testamento ipsius Roberti – the king was here involving himself directly in the implementation of Robert’s testament.56

In a case like that of Thomas son of Ralph, it was the heir who negotiated for testatory rights, presumably paying for them as part of the deal he made with the king.  In other cases the agents of implementation were the executors, who might likewise act with the backing of the king, which, again, they had doubtless paid to obtain.  Following the death of Thomas Darcy, a Lincolnshire landowner, in 1206,  his son Norman, supported by Simon of Kyme, fined for Thomas’s estates by 600 marks, a palfrey and a war-horse, whereupon the king directed the sheriff to hand the lands over, `and to have Thomas’s rightful testament put into effect from his chattels by his executors.’57  In the case of the East Anglian baron Gilbert Pecche, who died in 1212 owing large debts to the king, John at first entrusted Gilbert’s lands and chattels to Alexander of Pointon; he soon placed them in the hands of the mercenary captain Hugh de Boves, `with the crops of the present autumn’, but ordered Alexander to hand over `the other chattels which were Gilbert’s to the executors of his testament, having taken security from them that they will answer to us for the debt which Gilbert owed us.’58  Here it was the executors who were to receive the chattels, and pay the dead man’s debts, whereas in the Charter the king was to be paid first, before what was left was handed over to the executors.

Procedure in John’s reign seems to have been moving towards that prescribed by Clause 26, but had yet to attain the consistency which was one of the barons’ objectives.  That the gap was potentially narrowing is shown by another case from 1212, in which the earl of Arundel gave 700 marks for the wardship of the heir of the Lincolnshire baron Robert of Tattershall, and for having all Robert’s chattels, including the growing crops, having undertaken to pay all the dead man’s debts to the king - `and if any of those chattels shall be left over, he will apply them as far as they go to fulfilling Robert’s testament ...’.59  The debts, as recorded, were not very great – a little under £150 – and Arundel seems unlikely to have had much trouble clearing them, but his agreement with King John was specific that the latter’s claims were to be met first.  Robert left a widow, who remarried a year later;60 possibly she was outbid, for she seems to have played no part in the execution of her husband’s testament.  In this she differed from Albreda, the widow of William Boterel, who agreed in 1209 to give an extra 200 marks (on top of the 180 marks she had already offered for her own marriage) for her inheritance and dower, for not being compelled to remarry, `and for having all the chattels which were her former husband William’s on the day he died, both from William’s lands and her own, so that those chattels may be taken by her own hand and by view of the sheriff, and that what William owed the king may be paid from the first money [raised – de primis denariis], and that William’s testament may be implemented from the residue ...’61 – a settlement which covered much of what the Charter demanded six years later, and in very similar terms.

It should be stressed that Clause 26 did not deny that the king was entitled to recover debts owed to him by deceased tenants-in-chief, and that it allowed him a good deal of leeway in achieving that end.  Just as the first part of the clause implicitly allowed his agents to enter the estates of debtors and take what was owing, so the second part made no provision concerning the shares of widows and children, or the administration of a testament, in cases where the amount owed turned out to exceed the dead man’s assets, but effectively conceded that the claims of his dependents, and even of his soul, should take second place to the demands of the royal exchequer.  The terms of the clause show rather that it was the methods of the king’s officers, and the rapacity of the king himself behind them, which were at issue.  John and his agents exploited the vagueness of the existing regulations with regard to debt (in so far, indeed, as there were any), and the power inherent in the processes of distraint, to take more than was owed and keep too much of what was taken, while where testaments were concerned they were able to lean upon heirs and executors so that they paid the king to uphold them in what they had long regarded as rights, but which John sought to treat as favours in which they needed to be confirmed.  The result was a further cause of anger and a demand for appropriate redress.

1

E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 173.

2

PR 5 John (1203), 103.

3

e.g.  PR 7 John (1205), 39PR 14 John (1212), 3-4.

4

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 209

5

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter RLC), 33

6

ib., 47

7

ib., 127

8

ib., 210

9

PR 4 John (1202), 256.

10

PR 2 John (1200), 244; PR 4 John (1202), 254, 257.

11

PR 16 John (1214), 118.

12

Rot.Ob.Fin., 21.

13

PR 5 John (1203), 222-3 (Stuteville’s principal debts are recorded on p. 205).

14

T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart), 108.

15

RLC, 130.

16

Rot.Ob.Fin., 224-5.

17

PR 9 John (1207), 112-13.

18

Rot.Ob.Fin., 224-5.

19

e.g. ib., 295, 488; PR 6 John (1204), 34.

20

Rot.Chart., 184.

21

PR 14 John (1212), 3-4.

22

Rot.Ob.Fin., 239.

23

PR 6 John (1204), 221, 226; PR 7 John (1205), 30, 38.

24

PR 14 John (1212), 63 (fine); PR 13 John (1211), 220, PR 14 John (1212), 62 (debts).

25

PR 12 John (1210), 203 (fine); PR 11 John (1209), 114 (debts).

26

Rot.Chart, 201.  For William de Fors see in particular  J.C. Holt, The Northerners: a study in the reign of King John (Oxford, 1961), 65-6.

27

Rot.Ob.Fin., 261; PR 5 John (1203), 46, 148.

28

W.Stubbs (ed.), Select charters from the beginning to 1307 (9th edn., revised by H.W.C. Davis, Oxford, 1913), 118.

29

J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 427.

30

For wills and testaments in general I have been guided principally by M. Sheehan, The will in medieval England (Pontifical institute of medieval studies, Studies and texts 6, Toronto, 1963); R.H. Helmholz, The Oxford history of the laws of England i: The canon law and ecclesiastical jurisdiction from 597 to the 1640s (Oxford, 2004), 387-432; J. Hudson, The Oxford history of the laws of England ii: 871-1216 (Oxford, 2012), 682-6.

31

G.D.G. Hall (ed.), The treatise on the laws and customs of England commonly called Glanvill (2nd edn., Oxford, 1993), 81.

32

B. Colgrave and R.A.B. Mynors (eds. ), Bede’s ecclesiastical history of the English people (Oxford, 1969), 489.

33

Stubbs, Select charters, 179-80; Glanvill, 79-80.

34

PR 3 John (1201), 97, 256.

35

Curia Regis Rolls vi, 1210-1212 (1932), 79-80.

36

PR 8 John(1206), 184; PR 9 John (1207), 208.

37

D.L. Douie and H. Farmer (eds.), The life of St Hugh of Lincoln, 2 vols. (1961-2), 203-5; D. Whitelock, M. Brett and C.N.L. Brooke (eds.), Councils and synods, with other documents relating to the English church i:  871-1204, 2 vols. (Oxford, 1981), ii, 1053-4.

38

W. Stubbs (ed.), Chronica Rogeri de Houedene, 4 vols. (Rolls Series, 1868-71), iv, 140-1.

39

Rot.Chart., 23, 110; C.R. Cheney, Hubert Walter (1967), 173-4.

40

Rot.Chart., 99.

41

RLC , 76, 92.

42

Rot. Chart, 137.

43

T.D. Hardy (ed.), Rotuli litterarum patentium i: 1204-1216 (Record Commission, 1835 – hereafter RLP), 39.

44

ib., 99.

45

RLC, 188.

46

ib., 274.

47

M. Howell, Regalian right in medieval England (1962), 75-6.

48

RLC, 92.

49

PR 10 John (1208), 59.

50

T. Rymer (ed.), Foedera I;i (Record Commission, 1816), 86.

51

RLP, 97.

52

RLC, 13, 154.

53

PR 34 Henry II (1188), 15.

54

PR 13 John (1211), 11.

55

PR 12 John (1210), 35-6 (fine); PR 11 John (1209), 191 (Ralph’s debts).

56

RLC, 116.

57

Rot.Ob.Fin., 340-1.

58

RLC, 120, 123; Pecche’s principal debts are recorded PR 12 John (1210), 117; PR 13 John (1211), 97, 99.

59

RLC, 124; PR 14 John (1212), 181.  Tattershall’s debts are recorded PR 14 John, 103, 109.

60

Rot.Ob.Fin., 487.

61

PR 11 John (1209), 145.


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Original Latin

XXVII

Si aliquis liber homo intestatus decesserit, catalla sua per manus propinquorum parentum et amicorum suorum, per visum ecclesiae distribuantur, salvis unicuique debitis quae defunctus ei debebat.

27

If any free man shall die intestate, his chattels are to be distributed by his nearest kinsmen on both sides of his family, under the supervision of the church, but saving to everyone the debts which the dead man owed him.

Audio commentary

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Commentary for academic researchers

1 Testaments, kings and clerics

Clause 27 has the appearance of a sequel to Clause 26 of Magna Carta.  But although they cover some of the same ground, the application of Clause 26 was narrower than that of Clause 27, in that the former was specifically confined to tenants-in-chief, whereas the latter was concerned with all free men.  The two clauses originated together in Clause 5 of the `Unknown’ Charter, probably drawn up in the early months of 1215, which was in turn based on the `Coronation Charter’ issued by Henry I at the beginning of his reign in 1100.1  These documents contained a two-fold grant relating to the disposal of the goods of the dying and the dead.  The first, which was subsequently integrated into Clause 26, licensed the king’s barons and men to bestow their goods freely after they fell dangerously ill.  It did not specifically confine itself to testamentary disposition, but can at the very least be readily associated with it, in the light of the second grant, which authorised the distribution of moveables, by wives, kinsmen or friends, for the good of the souls of those who had died intestate,.  In both the Articles of the Barons and in Magna Carta itself, these concessions were separated to form two discrete clauses (Articles 15 and 16, Clauses 26 and 27), and their content also underwent some changes.  In both Article 16 and Clause 27 the social application of the original texts was clarified, so that they covered all free men instead of `my barons and my men’, and a supervisory role in the administration of intestates’ goods was conceded to the church (a point on which both Henry I’s charter and the `Unknown’ Charter were silent), while perhaps in the king’s interest (though others must also have benefited) a proviso was added to Clause 27 stipulating that a dead man’s debts should be paid before his goods were disposed of.

By the early thirteenth century, the control and disposal of an intestate’s goods (only movables were involved) was potentially the concern of any one of three parties – the king, the church, and the lord of the deceased.  When the issue was first recorded, some two hundred years earlier, the dominant role was the lord’s, and the king was concerned only to ensure that he performed it, while the church was not involved at all.  Cnut’s code of 1020/1 ordained that when a man died intestate, the lord was to take no more than the heriot which was his lawful due, and that he was to see that everything else was equitably distributed between the widow, children and close kinsmen of the deceased.2  From the fact that it was found necessary to restrict their interest to heriots, it seems reasonable to deduce that lords had in fact been taking more, perhaps even treating all the goods of intestates as their own.  The king’s concern for justice in his realm led to his aspiring to remedy such an abuse, but otherwise he had no interest in intestacy except where his own lordship was involved, as in the city of Hereford, for instance, where it was recorded in 1086 (among entries relating largely to the reign of Edward the Confessor) that `If anyone, overtaken by death, had not bequeathed his possessions, the king had all his goods.’3

By the time of Henry I’s charter of 1100, however, not only had the crown evidently been trying to widen its lordship where intestacy was concerned, seemingly to embrace the possessions of all tenants-in-chief who died without making a last testament, but intestacy was also coming to be increasingly seen as a specifically religious deficiency, and one which the church became particularly concerned to remedy.  Henry conceded the right of widows, children and kinsfolk to distribute a dead man’s movables, and he also acknowledged that their doing so arose from concern for his soul.  As the twelfth century progressed, it was increasingly accepted that their testaments constituted a last chance for the dying to obtain salvation through pious works, and that failure to grasp that chance was a grave, even a mortal, sin.4  It was in this spirit that an Essex woman making a bequest of land began her charter by declaring that `it befits the dying that every one who is able should give alms on his own behalf from his belongings’,5 and a consensus developed -  one recorded by Glanvill in the late 1180s - that for the testate and intestate alike there should be a three-fold division of goods and chattels, with a third each going to the dead man’s widow and children, while the rest was at his own disposal, and therefore could – and should – be used in his last days to save his soul, either through the distribution of alms or by gifts to churches and monasteries, often both.6 

Usury and intestacy

Both Glanvill and the Dialogus de Scaccario (in a passage probably inserted in the late 1180s, that is, at around the same time that Glanvill was written) hint at a symbiosis of the two sins of intestacy and usury,7 in that the latter could be remedied up to the moment of death by the usurer’s drawing up a testament, thereby making restitution to those whom he had defrauded and putting himself right with God by pious bequests.  But despite the religious nature of the offence inherent in usury – in particular, it involved speculating in time, which belonged to God alone8 – the movables of the man or woman found to have been a usurer were forfeited to the king.  There are signs that under Henry II attempts were made to treat the goods of intestates in the same way – possibly the fact that intestacy, like usury, could be construed as involving the misuse of material goods was alleged in justification..  In 1170 a man of York, Aldred of Micklegate, was recorded as owing £40 `for the chattels of Reginald who died in his house without making any bequests (sine divisa)’,9 and two years later the chattels of one Gilbert, a Lincolnshire man, and of Pelekin, the abbot of Battle’s bailiff, who had both died intestate, were similarly accounted for.10  But whereas the forfeiture of the goods of dead usurers, which began around the same time, continued to the end of Henry’s reign (in one case the offender was recorded as intestate,11 though Glanvill ruled that this was irrelevant) and became the subject of one of the articles of the eyre – De usuris Christianorum, et eorum catallis qui sunt mortui ­­- under Richard I,12 efforts to secure those of intestates for the crown very largely, though not entirely, petered out.

To Glanvill, the rights of the matter were straightforward: `When anyone dies intestate all his goods go to his lord, and, if he had several lords, each shall take those chattels which he finds in his fee ...’.13  The lord may then have been expected to distribute those chattels to widows, children and others, but the treatise does not say so, and in that respect its position was old-fashioned, not only in adopting a standpoint in accordance with much earlier procedure, but also in taking no account of the requirements of the church.  Probably in the late 1190s, according to Jocelin of Brakelond, one Hamo Blund, a wealthy burgess of Bury St Edmunds, died leaving a most inadequate testament, in which he made bequests amounting to only three marks, though his chattels were reputedly worth nearer 200 marks.  Concern for Hamo’s soul prompted the intervention of Abbot Samson.  Declaring that `I was his bishop and had care of his soul’, Samson ordered that a threefold division of goods be made, with one third going to the dead man’s heir (his brother), a second to his widow, and the third `to his poor relations and other poor people ...’.14  The abbot’s choice of words is telling.  He could have claimed to act as Hamo’s lord – the abbey had the right to a heriot, in the form of a horse, though Samson refused to accept it.  And the extent of Bury’s privileges, which were positively regal, could have justified his acting as the king’s justices or officers would have done, by taking all Hamo’s goods on the grounds that he was also reputed to have been a usurer.  In declaring himself the dead man’s bishop, Samson was aligning himself with the growing current of clerical feeling that intestacy, and its treatment, was an essentially ecclesiastical business. It was presumably in that same spirit that the abbot of Eynsham, in founding a borough at Eynsham in 1215, the year of Magna Carta, ordered that the movables of anyone dying intestate should be divided into the conventional three parts, with one third apiece going to the widow and children, and `the third part is to be shared out by his near kinsmen on behalf of his soul.’15

Intestate bishops

Paradoxically, the order in society which seems to have had most difficulty in securing the benefits of this new consensus seems to have been the church.  Perhaps the fact that the clergy were now required to be celibate, and therefore should have had no wives or children of their own, led to their being expected to maintain higher standards than the laity where the disposal of their movables was concerned, and to the validity of ecclesiastical testaments being hedged with conditions.  If so, it was a development capable of being used to the church’s disadvantage.  According to Ralph de Diceto, Archbishop Roger of York obtained a bull from Pope Alexander III empowering him to seize the belongings of any cleric under his jurisdiction who had drawn up a testament but failed to give away all his possessions, though as things turned out, the bull provided Henry II with an excuse for confiscating all the archbishop’s own money and valuables following Roger’s death in 1181.16   Roger of Howden, whose account of Roger’s last days is basically similar to Diceto’s but makes no reference to any papal decree, described the archbishop as falling ill early in November 1181, and then, conscious that his end was near, making a complete distribution of his possessions for the benefit of the poor, in France as well as in England, a process apparently completed several days before his death on 22 November.  His goods were nevertheless confiscated by the king, who claimed that Roger had himself decreed that no bequests by an ecclesiastic were valid which had not been made before the onset of his last sickness.17  The archbishop’s wealth, quite apart from the circumstances in which he had disposed of it, probably justified its sequestration in King Henry’s eyes - Diceto valued Roger’s valuables at more than £11,000, and though the pipe rolls do not confirm the sum, the fact that six carts were later needed to transport the archbishop’s money from Oxford to Marlborough suggests that the king’s haul was indeed considerable.18

The wealth of dead bishops constituted an ever-present temptation to needy rulers, and the king’s undisputed right to the custody of vacant sees was easily extended to the personal property of their late holders, as the actions of William II and Henry I show.  The right known as the jus spolii, entitling the king to confiscate all the movables of a deceased prelate, was only occasionally exercised by the late twelfth century – otherwise Henry II would have needed no justification for taking Archbishop Roger’s property.19  But it had not been formally abandoned, and probably helps to explain the care later taken by a number of bishops in John’s reign not only to make testaments but also to have them confirmed by the king.20  There is no reference to it, however, in chroniclers’ accounts of the death of Geoffrey Ridel, bishop of Ely, at the beginning of Richard I’s reign.  Diceto stated explicitly that Geoffrey died intestate at Winchester, whereupon all his money, amounting to 3,200 marks, along with an immense gathering of other valuables, was confiscated.21  And Gervase of Canterbury effectively corroborated this, by suggesting that the money, which was spent on Richard’s coronation, was thereby distributed for the good of Geoffrey’s soul - as an intestate’s hoard should have been - though in fact it all went to mountebanks and buffoons, and so can have done the late bishop no good at all.22  In certain circumstances the king might still take an intestate’s goods, and it was probably easier for him to do so if they were those of a bishop, with no immediate dependents to lay claim to them.  But he must also have been increasingly constrained by the expectation that he would use them for religious purposes, rather than as a means of filling his treasury.

Settling the issue

In the context of Magna Carta as a whole, one might expect Clause 27 to have been a response to numerous seizures of intestates’ goods, but in fact evidence that John acted in this way is very scarce.  The possibility that he might do so is attested by William Brewer’s proffer for the wardship and marriage of Hugh de Morville’s daughter in 1202, in which he gave 500 marks for a grant which included `the issues of the same land and the chattels which were Hugh’s which are not in the lord king’s hand or which he did not bequeath in his testament ...’.23  Presumably Morville did not die intestate, but the possibility remained that he might not have disposed of all his movables, in which case the residue could be regarded as being at the king’s disposal.  Not even that, however, is implicit in the early thirteenth-century story, probably by Ralph of Coggeshall, of the `Vision’ of the after-life vouchsafed to an Essex peasant named Thurkill.  In his passage through hell Thurkill encountered a royal justice identifiable as Osbert FitzHervey, who died in 1206, and was now enduring well-merited torments for evil living and judicial corruption, compounded by his having died intestate.24  But although others were said to have dissipated Osbert’s ill-gotten wealth, there is no suggestion in the `Vision’ that the king was among them, and there is nothing in the pipe rolls to indicate that his belongings were treated differently from those of any other deceased tenant-in-chief.  Osbert, who left a widow and an under-age heir, had built up an estate in Essex and East Anglia, and after his death his properties remained in the king’s hand for three months before being granted out in wardship; at the end of that time the king’s officer paid just over £60 into the king’s chamber `from the issues of the lands of Osbert FitzHervey, that is from the corn and livestock and rents from a quarter of a year ...’,25 but that seems to have been all, there is no reference either to chattels having been seized because of Osbert’s intestacy, or to a payment for keeping them out of the king’s hands.

When Joan, the widow of Robert of Bevercotes, gave twenty marks and a palfrey in 1208 for part of her late husband’s land, for her dower, for the disposal of her own remarriage, `and for having her reasonable share of her said husband’s chattels’,26 it is possible that she was the widow of an intestate, paying to have movable goods which ought to have been allotted to her automatically.  But she may simply have been making a conventional proffer to secure her property and rights.  A case from August 1216, when Peter de Maulay, as castellan of Corfe Castle the king’s leading supporter in Dorset and Somerset, was ordered to let Ralph de Bray have the estate of his nephew Walter, who was presumably a loyalist since he had been in the king’s service at Corfe in the previous year, and `cause him to have the chattels found on that land, for distribution for Walter’s soul’,27 is probably more likely to have resulted from intestacy, and has the added interest of showing the king, who seems to have acted as though he had Walter’s chattels at his disposal, apparently acting to remedy the dead man’s failure to make a testament without any ecclesiastical involvement.  But although John may still have been inclined to commandeer intestates’ goods when the opportunity arose, especially under the pressure of civil war, he very rarely seems to have done so.

The presence of Clause 27 in Magna Carta can probably be attributed at least as much to tidy-mindedness, by a wish to provide rules for intestacy in the same way that Clause 26 did for the observance of the testaments of such as made them, as to any particular transgressions on the part of King John’s government – although it is possible that behind it lay some notorious, but unrecorded, act of misappropriation at the expense of a dead man’s soul, the surviving evidence suggests that among the exactions of that government, those associated with intestacy were probably few in number, and not such as to attract much opprobrium.  If there was a demand for action on the issue, it probably came from the church rather than the barons, and indeed, it may have been directed by the church as much against secular lords as against the king.  Clause 27 was dropped from the reissue of 1216 and its successors, but statutes for the diocese of Worcester in 1219 made the bishop responsible for ascertaining whether members of the clergy had died intestate or not, and further statutes in 1229 showed the bishop to be concerned for the laity as well, placing limits on what the lord of a layman who died intestate could claim, and confining his involvement in the distribution of the dead man’s goods to a supervisory role.28  The treatise De Legibus known as Bracton, written at around the same time, placed even stricter limits on the lord’s interest, allowing him only his heriot, and stating emphatically that `administration will belong to the church and to his friends ...’.29  Bracton, like Magna Carta, concerned itself only with free men, but during the thirteenth century it was increasingly accepted that serfs could make valid testaments, a development which seems to have aroused tension between the church and secular lords – a major ecclesiastical council in 1258 warned the latter that they risked excommunication not only if they hindered the payment of intestates’ debts and the distribution of their goods in pious works, but also if they tried to prevent the implementation of testaments drawn up by serfs, `contrary to the custom of the English church as hitherto approved.’30  Clause 27 may have been subsequently dropped from Magna Carta because by 1215 intestacy had already largely ceased to be the concern of the crown.  Instead it had become essentially the business of the clergy, to be dealt with by ecclesiastical officials and litigated over in ecclesiastical courts.

1

W. Stubbs (ed.), Select charters and other illustration of English constitutional history ... (9th edn., rev. H.W.C. Davis, Oxford, 1913), 118; J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 427.

2

D. Whitelock (ed.), English Historical Documents i: c. 500-1042 (1955), 428.

3

A. Williams and G.H. Martin (eds.), Domesday Book (2002), 493.

4

M. Sheehan, The will in medieval England, Pontifical Institute of Historical Studies 6 (Toronto, 1963), 68, 232.

5

ib., 238 and note 24.

6

G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 80.

7

Glanvill, 89; E. Amt and S.D. Church (ed. and trans.), Dialogus de Scaccario (Oxford, 2007), 146-9; for the date of the relevant passage in the Dialogus see H.C. Richardson, `Richard fitz Neal and the Dialogus de Scaccario’, English Historical Review 43 (1928), 161-71, 321-40, at 333-6.

8

J.W. Baldwin, Masters, princes and merchants: the social views of Peter the Chanter and his circle, 2 vols. (Princeton, 1970), i, 271.

9

PR 16 Henry II (1170), 46.

10

PR 18 Henry II (1172), 98, 133.

11

PR 24 Henry II (1178), 10.

12

W. Stubbs (ed.), Chronica Rogeri de Houeden, 4 vols. (Rolls Series, 1868-71), iii, 264, iv, 62.

13

Glanvill, 89.

14

Jocelin of Brakelond, The chronicle of Bury St Edmunds, trans. D.E. Greenway and J. Sayers (Oxford, 1989), 81-2.

15

A. Ballard (ed.), British borough charters, 1042-1216 (Cambridge, 1913), 76.

16

W. Stubbs (ed.), Radulfi de Diceto ... opera historica, 2 vols. (Rolls Series, 1876), ii, 12.

17

W. Stubbs (ed.), Gesta regis Henrici secundi Benedicti abbatis, 2 vols. (Rolls Series, 1867), i, 282-3.

18

PR 32 Henry II (1186), 111.

19

F. Barlow, The English  church, 1066-1154 (1979), 115-18; A.L. Poole, From Domesday Book to Magna Carta, 1087-1216 (2nd edn., Oxford, 1955), 182.

20

Episcopal testaments are discussed in the commentary on Clause 26.

21

Diceto ii, 68.

22

W. Stubbs (ed.), The historical works of Gervase of Canterbury, 2 vols. (Rolls Series, 1879-80), i, 457.

23

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 184-5.

24

H.L.D. Ward, `The vision of Thurkill probably by Ralph of Coggeshall, printed from a MS in the British Museum’, Journal of the British Archaeological Association 31 (1875), 420-59, at 452-3; R.V. Turner, The English judiciary in the age of Glanvill and Bracton, c. 1176-1239 (Cambridge, 1985), 116.

25

PR 9 John (1207), 113.

26

Rot.Ob.Fin., 420-1.

27

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833), 283.

28

F.M. Powicke and C.R. Cheney (eds.), Councils and synods with other documents relating to the English church ii: 1205-1313, 2 vols. (Oxford, 1964), i, 55, 181.

29

S.E. Thorne (ed. and trans.), Bracton de Legibus et Consuetudinibus Angliae ii (Cambridge, Massachusetts, 1968), 179 (fol. 60b).

30

Councils and synods ii:i, 585.


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Original Latin

XXVIII

Nullus constabularius, vel alius ballivus noster, capiat blada vel alia catalla alicujus, nisi statim inde reddat denarios, aut respectum inde habere possit de voluntate venditoris.

28

No constable or other bailiff of ours is to take anyone’s corn or other chattels, unless he pays cash for them immediately, or obtains respite of payment with the consent of the seller.

Audio commentary

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Commentary for academic researchers

Purveyance and the provisioning of castles

Clause 28 was in all important respects unchanged from number 18 of the Articles of the Barons, and in both documents it appeared as the first in a small group of clauses concerned to regulate the activities of royal officials, with specific reference being made in two of them to the constables who controlled the king’s castles.  Those castles were fundamental to the governance of England under the Angevin kings, for all of whom they were, in William of Newburgh’s striking expression, `the bones of the kingdom’,1 but they took on a particular importance under King John.  In the years around 1215 John held about seventy castles in England alone (their number fluctuated somewhat, since forfeitures or the deaths of bishops or tenants-in-chief might temporarily add to them, as happened, for instance, after the death in April 1208 of Philip of Poitou, bishop of Durham, which gave John control of Norham Castle, a major fortress on Northumberland’s border with Scotland, for several years).2  For reasons both military and administrative castles bulked large in his style of government, as instruments of control and administrative bases, as royal residences, and in some cases also as major depositories for stores of cash.  The official who received custody of one might have to give hostages to the distrustful king,3 who possessed silver-gilt basins decorated with castles.4  The maintenance of both their buildings and their occupants was the king’s responsibility, and as Clause 28 shows, it had come to be achieved, at least in part, through the exercise of the king’s right of purveyance.

Traditionally, purveyance enabled the king to maintain his own peripatetic household by requisitioning the supplies it needed from the communities among which it passed, and making payment later for what it took.  It was a specifically royal privilege, and not one to which any baron was entitled.5  The grant which John FitzRobert (one of the twenty-five barons appointed to enforce Magna Carta) made to the burgesses of Corbridge, probably some time after 1215, in which he forbade any sergeant residing there to take any purveyance (prisam) from the townspeople against their will, almost certainly reflected the particular conditions in a town which had been a royal manor until King John granted it at feefarm to John FitzRobert’s father in 1205.6   In all likelihood either John FitzRobert or his officers had attempted to continue to exploit the king’s right of purveyance, and thereby helped to generate the controversia which the grant was intended to allay.  But although it was tolerated because it seemed unavoidable, purveyance was always deeply unpopular, as Clause 28 and John FitzRobert’s charter alike demonstrate.  On later evidence, it was a ready source of corruption – goods might be taken when there was in fact no need for them, or bribes extracted for having goods returned, or simply for being left unmolested - while payments were all too often made slowly if they were made at all.

Uses and abuses

Henry I’s attempt to control the exploitation of purveyance, in regulations probably issued in 1108,7 does not seem to have been more than partly successful, and indeed its use, as a means of providing government with subsistence while deferring payment for it, appears to have expanded as government did, being employed by sheriffs and other royal servants as well as by the king’s household.  Misuse of purveyance may have been one of the malpractices which lay behind Article 10 of the inquest of sheriffs of 1170, which ordered inquiry `whether the sheriffs or any of their bailiffs, or the lords of the vills or their bailiffs, have restored any of the things which they have taken, or have made any peace with their men, since they have heard of the coming of the lord king, in order to prevent any complaint thereof reaching the lord king or his justices.’8

Magna Carta was silent about purveyance as it was customarily taken for the benefit of the king’s household, but its being exploited, and abused, by royal officials as well was a different matter.  Clause 28 does not in fact represent the first attempt to prevent this, though the fact that the same noun – prisa – was, tellingly, used to define both purveyance as such, and also extortion in general, means that it is sometimes difficult to tell whether it is the king’s privilege or the misdeeds of his officials which is being referred to, as it is, for instance, in proceedings involving Ranulf de Glanville in 1176/7, when acting de propria prisa, and abetted by the prisa of his six sergeants, he was found to have exploited his control of Westmorland to take valuables, livestock, grain and timber worth £1571. 1s. 1d.9  There is similar uncertainty concerning one of the articles of the eyres of 1194/5, which originally instructed royal justices to inquire `de prisis et tenseriis [protection money] of all the king’s bailiffs, both justices and sheriffs, constables, foresters and their servants’ since 1189.10  Archbishop Hubert Walter, in his capacity as justiciar, put a stop to this inquiry, and it remains unclear what its target was, but there can be no doubt that the practice of taking of goods to stock castles had become a regular one, for on a few occasions John felt it necessary to issue charters exempting their beneficiaries from it.  In 1199 his confirmation charters for the knights of the Temple and the Hospital ordered that neither `their own grain nor that of their men is to be taken to provision castles’,11 and in 1205 he granted the same privilege to his own foundation of Beaulieu Abbey12 (another charter containing this clause, on behalf of the Cistercians, was cancelled, probably as a result of the recent death of Archbishop Hubert).13

The abuse of purveyance, and a response to it, can be no less clearly seen in an addition which was made to the articles of the eyre in 1208, concerning `Purveyances made (de prisis factis) by sheriffs or constable(s) or by any bailiff(s), against the will of those whose chattels were taken’.  Moreover this was almost certainly accompanied by another new article, `Concerning those who take bribes so that corn and other goods are not taken for provisioning castles’ - payment to avoid purveyance was the inevitable corollary of its usage.14  Ambiguities remained, but it may not have been coincidence that in the same year that the new articles were introduced, Walter Clifford, the recently-dismissed sheriff of Herefordshire, proffered 1000 marks (£666. 13s. 4d.) to recover the king’s good will and to avoid any inquest being made de prisis suis in that county.  He was pardoned 100 marks, but paid the rest within a year.15

King John and his castles: buildings and men

John spent over £17,000 on castles during his reign.16  He built two new ones, at Hanley and Odiham, but most of his outlay involved repairs and extensions to existing fortresses.  Only once in the first eight years of his reign did recorded expenditure exceed £1000 (in 1204/5, no doubt reflecting the danger of invasion after the loss of Normandy), but thereafter his outlay increased sharply, with a notable emphasis on the fortresses of the north of England.  Exact figures are unavailable, but the surviving records show that he spent at least £1616. 4s. 11½d. on castles in 1209/10, £2892. 18s.d. in 1210/11, and £2201. 1s. 3d. in 1211/12.  The fall to £632. 8s. 5d. in 1213/14 may reflect financial difficulties, or perhaps just different priorities, as John devoted ever more of his resources to his forthcoming campaign in France, but it is also possible that the English castles were now regarded as strong enough to serve their various purposes without much more money being spent on them.

Those castles would have been useless, however, without garrisons inside them.  These seldom appear to have been large, except in times of imminent danger, and even then they might be smaller than expected.  Following the death of Richard I, which saw a serious outbreak of disorder, and no doubt a reinforcement of garrisons, Tickhill Castle in Yorkshire was recorded as having been occupied by just five knights and ten sergeants, along with two smiths and six carpenters,17 while in 1216 the newly-built but decidedly minor castle of Odiham, Hampshire, famously held out for a full week against the French forces besieging it, even though it was manned by only three knights and ten sergeants.18  Two years earlier the same castle was recorded as being held by four knights and eighteen sergeants, still a modest number, while the far more important castle of Windsor was garrisoned by, at the most, ten knights and twenty sergeants, and even the Tower of London was manned at first by only ten knights, twenty sergeants and four crossbowmen, numbers later increased to fifteen, twenty-four and seven respectively, forty-six soldiers in all.19

But although the number of fighting men in a castle may not always have been very great, soldiers will seldom have been its only occupants.  There must always have been resident watchmen, doorkeepers and others responsible for upkeep and security, and these men will have been more numerous in the larger fortresses, and especially those which were also in intermittent use as royal palaces, like Corfe or Nottingham.  The arrival of the king and his retinue would then have augmented further the number of mouths to be fed.   In a county town, even one which the king did not visit in person, if it held a castle which was also the head-quarters of the sheriff, then the latter’s officers and staff would likewise have needed accommodation and upkeep.  Prisoners in a county gaol were expected to live off their own money and goods, but John’s suspicious regime was also apt to bring hostages into castles for safe-keeping, and these could not have been maintained thus.  In March 1213 Robert de Vieuxpont was ordered to hand over Salisbury Castle to Arnold of Auckland `with the prisoners and hostages which are in it’,20 and the release of hostages commanded by Clause 49 of Magna Carta must have eased the pressure on space and supplies in many English castles – Hereford, for instance, where six hostages were ordered to be released in August 1215.21  Finally there were non-human residents in the form of horses.  Supplies of oats, especially for the better animals, and also of hay must always have been in demand to feed the horses ridden by messengers and servants as well as by knights, and though many castles probably had demesne meadows which could usually meet the demand for hay, it is likely that the oats recorded as purchased for garrisons – 300 quarters bought for Lancaster Castle in 1215, for instance22 - were required less for the men than for their mounts.

Providing for emergencies

Supplying a castle was thus likely to be an expensive business even in peacetime, and more so in times of war or disturbance.  In 1199, probably in response to the disorder which followed the death of Richard I, Launceston Castle in Cornwall was held for thirteen days by a force made up of five knights, twelve mounted serjeants and twenty serjeants serving on foot, thirty-seven men with, presumably, at least seventeen horses.  To supply men and mounts for less than a fortnight, a total of £18. 15s. were spent on eighteen sides of bacon, ten horseloads of corn, eighteen of rye, fifty of oats (most of these were probably intended for the horses), four quarters of salt, a barrel of wine, unspecified quantities of firewood, coal, hay and ale, and also four doublets (purpuinz).23  It was probably usual for stocks of victuals to be built up in times of emergency, then reduced once the crisis was over.  How large they could be in a major fortress is suggested by the sales of supplies from Nottingham Castle, altogether worth at least £145, recorded in 1194 – they must have been gathered ahead of the siege of the castle earlier in the year, but once the castle had fallen to King Richard most of them were no longer needed and were therefore sold off.  The foodstuffs disposed of included 229 quarters of corn, 297 quarters of rye, 1180 sides of bacon and 400 cheeses.24

Since Nottingham Castle was held against the king by supporters of his brother, it seems likely that its garrison simply took provisions as and where they could be found, without any pretence that they were being commandeered as a lawful act of purveyance.  But even when legitimately carried out, purveyance seems to have been potentially problematic.  Sheriffs and constables (often the same, especially when the sheriff had his office in a castle situated in a county town) who had taken goods against a promise of future repayment could offset their subsequent disbursements against the revenues for which they accounted at the exchequer.  In this there were similarities to the way in which the financing of work on the king’s buildings was organised,25 but also one important difference.  In both cases the sheriff or constable needed to show a royal writ authorising his action, but whereas for buildings he also had to have the supporting testimony of two or three `law-worthy men’ who were required to accompany him to the exchequer and there swear that the money had indeed been spent as the king ordered and the sheriff claimed, after which the latter was allowed the sum in question on his account, for purveyances the authority of a royal writ was usually all that was necessary.  There were a few exceptions.  In 1193, for instance, the sheriffs of London successfully claimed allowance of £52. 14s. 10d. spent on stocking the Tower with wheat, oats, cheese and wine, `by the king’s writ and by view of John son of Erlecon and Alexander son of Sperling ...’,26 and in 1215 the sheriff of Northamptonshire spent nearly £50 on grain and ham for Northampton Castle `by royal writ and by view of Philip Malebranche and Robert of Bugbrooke’.27  But far more often it was only works which were guaranteed per visum, while supplies were said to have been paid for on the sole authority of a royal writ, suggesting that purveyance was usually carried out under little or no external supervision, and so with a greater danger of corruption and abuse.

Alternative recourses and military imperatives

In discussing purveyance, it is seldom possible to be certain when it was used to provision castles.  Exchequer records which sometimes list the goods being paid for as well as their value hardly ever state categorically that the expenditure being accounted for was disbursed in payment for previously-requisitioned goods, although it is very likely that this was indeed often the case.  Clause 28 itself, along with earlier measures like the 1208 addition to the articles of the eyre, constitute the strongest evidence that purveyance was frequently resorted to, but supporting detail is largely absent.  The issue is further complicated by the fact that there were other ways in which castles could be provided with food, drink and other necessary supplies, most of them recorded in the last years of John’s reign, though it would be rash to assume that none was ever employed earlier. One such was simply to sell existing stocks of food in a castle, presumably because they were in process of decay, and use the proceeds to buy new ones.  The sale of meat, grain and other goods at Knaresborough Castle in 1214, including grain that may have been three years old, raised £51. 3s. 3d., more than enough for the oxen, horses, beans and herrings which were then purchased.28  In May 1215 Norwich Castle was to be provisioned with meat and grain from the lands of the bishopric, which was vacant at the time,29 while a year later it was corn from a rebel’s land which was to be stored in Corfe Castle.30  At Winchester cash owed from the city’s fee-farm was to be used in 1215 to finance the stocking of the castle,31 as it was also at Gloucester in the following year, where the sheriff was also ordered to bring in `the corn of all the knights of your county whose lands are within ten miles’ distance of Gloucester ...’.32  In 1216 the royal manor of Kingsthorpe, Northamptonshire, was entrusted to the sheriff, so that its issues could be applied to the keeping of Northampton Castle,33 and in the same year Hubert de Burgh was ordered to let Cecily d’Avranches have all her son’s land `except the land which he finds it necessary to have for the stocking [ad garnisturam] of Dover Castle.’34  By then Rockingham Castle was being maintained from a castlery (castellaria) made up of four royal manors and a number of wardships.35

Cash could be paid where it was available, or when its use seemed especially appropriate.  On 25 July 1215, for instance, Sherborne Castle in Dorset was entrusted to John Marshal, whose keeper was instructed to hand it over `with all the provisions which you have had bought with our money, and if any money is left over from that assigned to the purchase of provisions, it is to be handed over to the same [John] ...’.36  But at a time when the supply of coin was limited, not least because John’s ever-increasing demands on his subjects caused large quantities to be taken out of circulation, either stored in his castle treasuries or shipped overseas for payment to his continental allies, purveyance must often have been the only recourse available to sheriffs or constables who needed to man and equip the castles in their keeping.  By 1215, as one might expect, the scanty evidence indicates that the garrisons of royal castles, and therefore the quantities of provisions needed to maintain them, were growing considerably.  According to the Barnwell chronicle, John responded to the baronial occupation of London on 17 May by strengthening his strongpoints (praesidia) and castles with men and victuals.37  Figures for the men are scarce, though it is probably indicative of the mounting crisis that when John appointed a new constable for Scarborough Castle in March 1215, he ordered the two existing ones to come to him, and instructed them to leave the castle manned by sixty sergeants and ten crossbowmen,38 while soon afterwards it was reinforced by ten knights as well as by thirteen more sergeants and another three crossbowmen;39 it seems safe to say that this was a considerably larger body of troops than had held the castle a year or two previously.

There is better evidence for the victuals, though John seems to have started adding to them somewhat earlier than the chronicler reported.  In April 1215 John had ordered Henry of Braybrooke, sheriff of Northamptonshire, to supplement the provisions already in Northampton Castle, so that the forty quarters of wheat already in store there were increased to 200, and the number of sides of bacon brought up from eighty to 300.40  The sheriff obeyed his instructions, and indeed, he did rather more than that, for at a cost of £49. 11s. 1d. he bought 220 sides of bacon, 103 quarters of wheat and 136 quarters of oats.  As a result he had considerably more than was needed, or perhaps more than the castle granary could hold, for he soon had to sell grain worth £21. 18s. 2d.; he had been ordered to pay 2s. per quarter, suggesting that he sold all but about twenty quarters of the 240 he had only just purchased.41  Other castles were restocked at the same time.  At Lancaster the sheriff spent a total of £162. 10s. 10d. on wheat, malt, sides of bacon, oats, herrings and salt, along with eighty cows and 130 sheep, all of them `on the hoof’, and he also laid out £5 on 10,000 crossbow bolts,42 suggesting that he was taking precautions against a possible siege, though none took place.  At Wallingford, which stood in greater danger, the sheriff spent only £10 on 100 horseloads (summis) of wheat and £18. 18s. on `186 pigs bought to stock Wallingford Castle’,43 but that castle may well have been better maintained than Lancaster (the latter also needed repairs costing £33. 18s. d).  Expenditure on works on castles was rarely significant during this year, but £50. 15s. 11d. were spent on Knaresborough, and no less than £402. 2s. on Kenilworth.44

The effects of civil war

According to the well-informed `Anonymous of Béthune’, in 1216 the vital fortress of Dover was manned by 140 knights and a very large number (moult grant plenté) of sergeants.45  But apart from the enlarged force which manned Scarborough Castle in 1215, and the thirteen who held Odiham, there is otherwise only meagre evidence for the size of the garrisons which held King John’s castles during the civil war at the end of his reign.  A little more can be said about the castles which were held against him.  These must often been small – the Barnwell Chronicle referred to rebels building `new fortlets’ (novas munitiunculas) in the summer of 121546 – but some were substantial.   When Belvoir Castle in Leicestershire, a powerful fortress belonging to William d’Aubigné, surrendered to John in December 1215, thirteen knights and twenty-eight serjeants, forty-one men in all, were described as having come into the king’s allegiance.47  William himself was then a prisoner in the king’s hands, following his capture shortly before in Rochester Castle, after a prolonged siege in which he had led a baronial force which according to Roger of Wendover consisted of 140 knights `cum sequela sua’48  - the retinues of so many knights are likely to have amounted to a considerable force, and presumably contained the crossbowmen who were said to have killed many of the besiegers.  Colchester Castle, a royal fortress which had recently been strengthened by John but later fell into baronial hands, to be held by a combination of English and French troops, contained at least 117 of the latter when it surrendered to the king in March 1216.49  It seems reasonable to suppose that the major royal castles, at least, were similarly well-manned when they faced an imminent siege, and they may have been better stocked with provisions than Rochester was.  D’Aubigné and his followers were said by Wendover to have found the castle `destitute not only of weapons and food, but also of every kind of goods, except those which they had brought with them’, and to have been able to victual themselves only with what they could seize in the city.  In a telling comment on the way castles under threat might have to be supplied, they did not have time to plunder the countryside round – praedam in provincia agere – before they were besieged.  They would, in fact, have resorted to precisely those methods which Clause 28 condemned in order to maintain themselves when under attack.  As it was, shortage of victuals eventually forced them to surrender.

Once civil war had broken out it was inevitable that both the king’s castellans and their rebel counterparts should have resorted to purveyance to stock their fortresses.  When Engelard de Cigogné, who became constable of Windsor Castle in 1215, was sued by Alan the vintner of Reading in 1224 for wine he had allegedly taken `in time of peace, before the war’, he denied all misdoing in peacetime, but admitted that `in time of war, when he had Windsor Castle in his keeping, it may well be that he took some of his wine on the king’s behalf, to stock the castle, as he did with others ...’.50  John’s order of 23 July 1215, addressed to all the men of Yorkshire, ordered them to give up not only the lands and tenements, but also the castles and supplies (munitiones), which they had taken tempore guerre,51 suggests that as soon as hostilities began not only castles but also the supplies needed to provision them were seized, and since the order did not distinguish between the friends and foes of the king, that the men of both sides acted in the same way.

Magna Carta was drawn up before civil war broke out in earnest.  No doubt Clause 28 was principally intended to remedy a burdensome abuse, but its likely repercussions upon a regime which was so dependent on castles for the maintenance and exercise of its power, and which also relied heavily on the services of mercenary soldiers, can hardly have escaped the barons who included it in the Charter, and in that respect it supplemented other clauses which were more overtly concerned to reduce John’s military strength, notably 50 and 51.  Taking into account the assault made in the Charter on John’s methods of raising money, and the reduction in his revenues which resulted from it, it should have been much more difficult after 1215 for any king to try to dominate the country through garrisons maintained in his castles.  Forcing him and his officers to pay cash down for supplies needed by soldiers manning his strongholds, while at the same time reducing the amount of cash available to them, should have been a simple way of clipping royal wings.  There was, however, a potential flaw in Clause 28 which must have threatened to undermine its essential purpose, in its concession that payment for goods taken in purveyance might be deferred `with the consent of the seller’.  In this half-hearted way the barons accepted that it was not only the king’s household which might have to be supplied through purveyance.  And in doing so they left the way open for would-be purveyors to compel the necessary consent, by bringing to bear upon those whose goods they wished to requisition the force which they had at their disposal, that same force, indeed, which the proposed purveyance was intended to maintain.  Unsurprisingly, therefore, misuse of purveyance remained a grievance for a long time to come.

1

William of Newburgh, Historia rerum Anglicarum, in R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II, and Richard I, 4 vols. (Rolls Series, 1884-9), i, 331.

2

Details from R.A. Brown, H.M. Colvin, A.J. Taylor, The history of the king’s works i: the middle ages, 2 vols. (1963), supplemented by R.A. Brown, `Royal castle-building in England, 1154-1216’, EHR 70 (1955), 353-98.  Welsh castles are excluded from the figures given here.

3

T.D. Hardy (ed.), Rotuli litterarum patentium 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 34.

4

R.A. Brown (ed.), The memoranda roll for the tenth year of the reign of King John (1207-8), Pipe Roll Society new series 31 (1957), 125.

5

W.S. McKechnie, Magna Carta (2nd edn., Glasgow, 1914), 329-33.

6

M.T. Martin (ed.), The Percy cartulary, Surtees Society 117 (1911 for 1909), 283-5, H.H.E. Craster, Northumberland County History x: Corbridge  (Newcastle, 1914), 59-61; the interpretation of this grant offered here differs somewhat from that of J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 58-9.  John FitzRobert’s grant also appears to refer to Clause 20 of Magna Carta.

7

J.A. Green, The government of England under Henry I (Cambridge, 1986), 21.

8

D.C. Douglas and G.W. Greenaway (eds.), English Historical Documents ii: 1042-1189 (2nd edn., 1981), 472.

9

PR 23 Henry II (1177), 81-2.

10

W. Stubbs (ed.), Chronica Rogeri de Houedene, 4 vols. (Rolls Series, 1868-71), iii, 267.

11

T.D. Hardy (ed.), Rotuli chartarum, 1199-1216 (Record Commission, 1837), 1-2, 15.

12

L. Landon (ed.), The cartae antiquae, rolls 1-10, Pipe Roll Society new series 17 (1938), no. 222 (pp. 109-111).

13

Rotuli chartarum, 154.

14

H.T. Riley (ed.), Munimenta Gildhallae Londoniensis, 3 vols. (Rolls Series, 1849-62), i, 118; C.A.F. Meekings and D. Crook (eds.), The 1235 Surrey eyre, 3 vols., Surrey Record Society 31-2, 37 (1979-2002), i, 92-3.

15

PR 10 John (1208), 191; PR 11 John (1209), 61.

16

Brown, art.cit. note 2 above, 356; the figures relating to expenditure are also taken from this article.

17

PR 8 John (1206), 78.

18

H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum, 3 vols. (Rolls Series, 1886-9), ii, 182-3.

19

PR 16 John (1214), 124-5.

20

Rot.Lit.Pat., 96.

21

Ib., 151.

22

PR 17 John (1215), 56.

23

PR 1 John (1199), 242.

24

PR 6 Richard I (1194), 87.

25

E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford Medieval Texts, Oxford, 2007), 134-7.

26

PR 5 Richard I (1193), 158.

27

PR 17 John (1215), 49-50.

28

PR 16 John (1214), 66-7.

29

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus.i), 198.

30

Ib., 279.

31

Ib., 227

32

Ib., 276, 288.

33

Ib., 218.

34

Ib., 276.

35

Rot.Lit.Pat., 176.

36

Rot.Lit.Claus.i, 222.

37

W. Stubbs (ed.), Memoriale fratris Walteri de Coventria, 2 vols. (Rolls Series, 1872-3), ii, 221.

38

Rot.Lit.Pat., 131.

39

Rot.Lit.Claus.i, 214.

40

Ib., 195.

41

PR 17 John (1215), 49-50, 51.

42

Ib., 56.

43

Ib., 42.

44

Ib., 13 (Knaresborough), 28 (Kenilworth).

45

F. Michel (ed.), Histoire des ducs de Normandie (Société de l’histoire de France, Paris, 1840), 170.

46

Memoriale Walteri de Coventria ii, 222.

47

Rot.Lit.Pat., 162.

48

Rogeri de Wendover ... flores historiarum, ii, 146.

49

Rot.Lit.Pat., 171-2.

50

Curia Regis Rolls xi, 1223-4 (1955), no. 2368 (pp. 469-70).

51

Rot.Lit.Pat., 150.

Referenced in

Clause 30 (The 1215 Magna Carta)

Clause 30 (The 1215 Magna Carta)

Clause 29 (The 1215 Magna Carta)


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Original Latin

XXIX

Nullus constabularius distringat aliquem militem ad dandum denarios pro custodia castri, si facere voluerit custodiam illam in propria persona sua, vel per alium probum hominem, si ipse eam facere non possit propter rationabilem causam; et si nos duxerimus vel miserimus eum in exercitum, erit quietus de custodia, secundum quantitatem temporis quo per nos fuerit in exercitu.

29

No constable is to distrain any knight to give money instead of performing castle-guard, if he is willing to perform that guard in person, or, if he is unable to do it for a satisfactory reason, through another reliable man. And if we have led or sent him in the army, he is to be quit of castle-guard in proportion to the time he is in the army at our behest.

Audio commentary

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Commentary for academic researchers

Clause 29: context and purposes

Clause 29 was the second in a group of four consecutive clauses concerned primarily to prevent abuses of power by officials, and especially by those responsible for the maintenance or stocking of castles. They appeared in the same order, and with only verbal differences, among the Articles of the Barons (nos. 18-21). No. 29 is one of several in which the voice of legislative authority shifted, from an impersonal statement of prohibition to an utterance made in the name, and the person, of the king. In most such cases the change was a purely semantic one, with the royal plural being simply substituted for the `rex’ of the originating Article. But in this instance it may have been deliberately made, in response to the differing natures of the two directives which were linked together in the Clause, as they were in Article 19. There is in fact a certain ambiguity about the target of Clause 29, arising from the way it was constructed. In translation it has usually been presented as made up of two directives separated by a semi-colon or full stop. But in the original Latin there is no punctuation, and the Clause appears as a single injunction, with the king giving an undertaking in its second half in a way which can be plausibly construed as referring back to the first half as well – John grants quittance of service to knights whom he has also freed from the attentions of his officers. This does indeed seem likely to be the correct understanding of Clause 29, but the fact that the officers in question were identified only as `constables’, and not specifically as royal ones, makes it possible that the Clause was directed against all such officers, baronial as well as royal, and that its remit was therefore wider than at first sight appears. Even if this was not in fact its purpose, it can at least be acknowledged that the Clause’s imprecision allows it to be interpreted in this way, as restraining the demands which barons could make on their military tenants, as well as those made by the king.

Both parts of Clause 29 were concerned with the service known as castle-guard, but their contexts were different. The first order, concerning commutation of service, was unusually precise among Clauses 28-31 in being directed solely against constables, in this context the military officers exercising day-by-day command over castles and responsible for the maintenance and discipline of their garrisons, just as it was in the protection it afforded, which was specifically extended to knights, and to nobody else. No doubt other, lesser, officers were in fact meant to come under the clause’s bar, just as free men who were not knights were intended to be protected by it (although the evidence is sparse, it suffices to show that a form of castle-guard could also be demanded of lesser landowners who performed the military duties of serjeants),1 but the terms chosen are probably significant – men of rank were to be defended against the activities of subordinates and underlings. The second order, dealing with army service as a substitute for castle-guard, was appropriately put into the king’s mouth because the summoning of the host, whether it consisted of men who owed knight service, or was raised from among all the king’s free subjects for the defence of the realm, was something that only the monarch, or men acting in his name, could command.

 

Castle-guard and its problems

Castle-guard, the performance of garrison duty at the fortress of a lord, was among the services which the latter could demand of his free tenants in return for the lands with which he had enfeoffed them.2 Commonplace in western Europe in the eleventh century,3 it was imported into England (along with the castle itself) in the wake of the Norman Conquest, in response to the immediate needs of the new regime as it set about establishing itself in the face of native hostility. Hence, for instance, the obligation imposed upon Abbot Adelelm of Abingdon, sometime between 1071 and 1083, of providing thirty knights for the garrison of Windsor Castle, one which he met by enfeoffing his own kinsmen with manors from the abbey estate.4 Of long persistence in the heavily militarised society of the Welsh march,5 castle-guard apparently became established in Scotland as much by infiltration as by imposition, since it seems to have been limited to the south and east of the country, that is, to those parts most open to English influence.6 But contrary to what might have been expected, it does not seem to have been widely employed by the Anglo-Normans in Ireland in the years after 1169,7 while in England itself it was visibly in decline by the end of the twelfth century, having never been universally established there in the first place. Many of the greatest fortresses in the country never made any use of it, but were always entirely manned by paid soldiers – the Tower of London, for instance. If such men needed reinforcement, this could be supplied by the men of the surrounding region, summoned not on the grounds of their tenure but as the king’s lieges. It was recorded in 1220 that when civil war broke out in 1215, the constable of Bristol Castle, Philip d’Aubigny, `took the fealty of the men of the country on the king’s behalf, so that they would be under his orders and come with him to guard Bristol Castle should the need arise ...’.8 Similar methods were employed to man Gloucester Castle a year later.9

Overall, the number of English castles recorded as having been garrisoned by castle-guard constituted a relatively small proportion of the whole, either royal or private. Although it has been calculated that during the reigns of Henry II and his sons there were at least 327 castles in England and Wales, of which about 275 were in existence at the end of John’s reign,10 Sidney Painter estimated that there were only forty-two castles, royal and baronial, for which there was `reasonably clear evidence’ for their having been manned by garrisons provided under castle-guard obligations, and listed another nine at which this might also have been the case.11 His lists are incomplete, but when all allowances are made for omissions, the numbers remain low. In fact complete certainty about the total is probably unattainable, since the evidence is fragmented, often late, and sometimes difficult to interpret. In particular, it can be hard to tell whether the service allegedly owed was attached to a knight’s fee or a serjeanty, for a number of serjeanties were held in return for service in a castle. Indeed, contemporaries themselves sometimes found it hard to distinguish between these two forms of service. In 1228 one Peter of Cosham, a minor landowner in Hampshire, disputed the right of Geoffrey de Luscy to half a hide of land in Cosham, asserting that it belonged to the serjeanty which he himself held there. Geoffrey responded by challenging Peter’s action on technical grounds, which included the claim that the land at issue did not constitute part of any serjeanty, but rather that it owed castle-guard at the king’s nearby castle of Porchester (not listed by Painter). Peter could not deny this, and his action against Geoffrey was quashed. He fared better in a similar action against Roger of Cosham, even though Roger also claimed that the land was not held by serjeanty – he preferred to link it with socage instead.12 To compound the uncertainty, the Portsdown jury at the 1236 Hampshire eyre presented that Peter did hold a serjeanty, but said nothing to connect it with Porchester Castle, associating it only with service in the royal host (two other men, however, not mentioned in Peter’s lawsuit, did hold lands by the serjeanty of garrisoning the castle).13

Despite such uncertainties, it can safely be said that the distribution of castle-guard was geographically patchy, as well as sparse. It served to garrison castles along the south coast and Thames estuary (Porchester, Carisbrooke, Corfe, Pevensey, Hastings, Dover, Rochester), in the Thames valley at Windsor and Wallingford, and also on the border with Wales, where the continuous danger of attack gave it value for even minor strongholds like Kilpeck in Herefordshire.14 A number of fortresses in Northumberland were garrisoned by castle-guard, but none of those on the other side of the Pennines north of Lancaster – men owed castle-guard duty to Newcastle, founded by Robert Curthose in 1080, but not to Carlisle, established only twelve years later by William Rufus, and always manned by stipendiaries. Lincoln and Norwich, and Eye in Suffolk, were served by castle-guard, but it was found only rarely in Yorkshire – notably at Richmond and Tickhill – and also in the midlands, where, however, it supplied men for important strongholds at Northampton and Rockingham. These castles were predominantly royal ones, but here again there are ambiguities. Not only were baronial fortresses apt to fall in to the king’s hand through escheat, forfeiture, wardship or simply force majeure (Richmond is a prime example), but they could also come under royal control if the military situation required it. Oswestry Castle in Shropshire furnishes an example of this.15 Clause 29 was directed in the first instance against the activities of the king’s officers, but the castles potentially involved were not necessarily all royal ones, and as already noted, the Clause also had the potential to be used – and may even have been partly intended – to control members of the baronage in their dealings with their own tenants, and not least those who went on campaign in the king’s army.

 

The trend towards commutation

As a significant method of garrisoning fortresses, castle-guard retained an immediate military value for a relatively short period, except in the different conditions of Wales and its marches. From as early as the reign of Henry I onwards, just as there was a growing tendency for knight service in the field to be replaced by scutage, so castle-guard, too, was increasingly commuted for a money payment,16 enabling the lord to whom that service was due to hire a professional soldier to replace the tenant who owed it. The process of decline was uneven. In the Welsh marches, in particular, castle-guard might continue to be performed well into the thirteenth century, and elsewhere it could be re-activated if the need arose. In around 1218 Bishop Hugh of Lincoln made an agreement with Henry de Neville over the castle-guard which Henry owed to the episcopal castle of Newark, in which he permitted this service to be transferred to Sleaford, and reduced the number of knights owing it from five to three, but with the recent civil war doubtless in his mind, nonetheless specified that the service was to be done `on account of the exigencies of war or when the peace of the realm is disturbed ...’.17 Even so, it is noteworthy that neither Henry II’s new castle at Orford, nor the three castles built by King John, at Hanley, Odiham and Sauvey, were manned by castle-guard tenants – probably it did not occur to either monarch to have them garrisoned in this way.

The money will have been the principal reason for nominal survival of the service of castle-guard, another will have been its perceived value as an adjunct of lordship and symbol of power, maintaining links between a lord and his tenants which emphasised the latter’s dependency, but possibly also giving status, a social cachet, to the men who owed it. Among Norfolk landowners recorded as owing castle-guard to Dover in 1198/9 was Godfrey de Lisewis, who held property in Raynham.18 In May 1200 he conveyed some of his estate there to Gilbert Pauper, on terms which included a yearly rent of 7s. and 11d. towards scutage when it was demanded at the rate of 20s. per fee.19 Godfrey made careful provision for Gilbert’s performance of military service should the host be called out, but he said nothing about castle-guard. Perhaps this was because that duty was still demanded of him, but given the general tendency towards commutation it seems just as likely that (unusually, and unlike most of his associates) he actually wished to perform it in person.

The links between lords and men sometimes extended over great expanses of territory and involving large numbers of people, and could be focused, moreover, upon fortresses of great military importance, as the civil war of 1215/17 was to show. These factors can be illustrated from the great castle of Dover, which also played an absolutely crucial role in the civil war. It was ostensibly manned by knights from eight different lordships, or `custodies’ (a ninth supported the constable, who was nominally always in residence), which between them supplied some 117 men, though not all of them at once – a complicated system of rotation was devised to ensure that there were always about ten knights in the castle at any one time.20 Several of the lordships which served Dover Castle in this way were based in Kent, but they also included baronies in Oxfordshire, Hampshire and even Herefordshire, while the caput of the constable’s `custody’ was Haughley in Essex. Individual landowners owing castle-guard to Dover could also be found in Norfolk and Lincolnshire.

By the end of the twelfth century few of Dover’s castle-guard tenants are likely to have been performing their service in person; some may have supplied deputies, but it would have been much cheaper for them to commute their service for money, at a standard rate of 10s. per knight’s fee – such, for instance, was the amount due from William of Bodham in 1198/9 for his single fee in Holt hundred in Norfolk.21 A document from a heraldic collection, of very uncertain value, attributed the commutation to Hubert de Burgh, who as constable of Dover concluded that `it was not safe for the castle at different months to have new guards to ward’, and therefore arranged, with the consent both of the king and of the tenants concerned, that the latter should pay cash instead, so that `henceforth certain men chosen and sworn, both knights and foot-soldiers, should be hired for the guarding of the castle.’22 The payment due from William of Bodham shows that the commutation preceded de Burgh’s tenures of the constableship (he held it twice, from 1200 to 1202, and again from 1215), but the reason for it looks authentic, whenever the calculation was made, and was justified when Dover successfully held out against a sustained siege by French forces in 1216/17. The fighting qualities of tenants by knight service should not be automatically dismissed, but it seems unlikely that a castle which was assailed with such determination over so long a period could have been effectively defended by a garrison primarily composed of amateurs and irregulars.

Richmond Castle in Yorkshire did not play a role in the civil war in any way comparable to that of Dover (it was captured by royalists late in 1215, but later returned to its constable in a gesture of conciliation). But it, too, was nominally manned by castle-guard, and on an even further-flung basis.23 Its military importance, and organisation, stemmed from its position at the head of the Vale of York, which it protected against attackers coming from Cumbria and Scotland via the Eden valley and the Roman road across Stainmore. Its original lords were the counts of Brittany, whose widely distributed estates were required to contribute to the defence of the caput of their lord, even when that caput was in the hands of the king, as it was throughout John’s reign. As well as having a great block of nearly 200 manors to provide material support, Richmond Castle was defended by the castle-guard of about 180 knights’ fees, of which a third were situated in Yorkshire and around twenty per cent in Lincolnshire. The rest were in Cambridgeshire, Nottinghamshire, Norfolk, Suffolk, Essex and Hertfordshire, while in the 1240s there were even two fees in Hampshire. As with Dover, their service was so organised as to fall due by rotation, with six groups of between twenty-six and thirty-two knights being required to man the castle at two-monthly intervals (the smaller groups performed their service in winter). And also as with Dover, it had been methodically commuted for cash – the rates recorded in the late thirteenth century had probably originated much earlier.

The geographical distance of many tenants from the castles they were expected to serve were exceptionally large in the cases of Dover and Richmond, but castle-guard was provided, and then commuted, in otherwise similar ways at a number of other fortresses. The 120 knights owing castle-guard to Rockingham Castle did not have far to come from the baronies of the abbot of Peterborough (sixty knights), Chipping Warden (fifteen), Odell in Bedfordshire (thirty) and Great Weldon (fifteen), and in that respect were better off than some of the seventy-three knights required to serve at Windsor, nearly all of whom were provided by three baronies besides that of the abbot of Abingdon, namely Eton (Buckinghamshire), Weedon Pinkeny (Northamptonshire), and Little Easton (Essex).24 No fewer than 200 knights owed castle-guard at Norwich, with forty of them being supplied by the abbot of Bury St Edmunds. The service of the Bury knights, which in theory they performed in four groups of ten (a glimpse of a system of rotation like that prevailing at Dover and Richmond), had by the reign of Richard I been commuted for cash, at the rate of 3s. per fee, though this was reduced to 2s. 5d. by contributions from a further ten knights who had been enfeoffed from the abbey estate. Abbot Samson famously made determined efforts to compel all fifty knights to pay the same, full, amount, and succeeded, for from 1197 onwards each of them undertook to pay 3s. per fee in commutation, either to Norwich Castle or to the abbot.25

Some time between 1156 and 1166 Earl Hugh Bigod, who held three fees of the abbot, refused to perform castle-guard at Norwich, and had to be ordered by the king to fulfil his obligations, something which in 1166 he was reportedly doing.26 He would have been unlikely to be troubled thus forty years later, since by then such service had become increasingly fragmented as well being widely commuted. Although most (but not all) of the Bury knights who settled with Abbot Samson owed the service due from one or more entire fees, an inquest into escheats and other royal rights from Norfolk in 1198/9 records a number of payments in lieu of castle-guard which can only have been owed from fractions of them.27 Among them was Ralph FitzAubrey, described as owing 14d. for fourteen weeks service `from the barony of St Edmund’. Since Ralph is not recorded as having fined with the abbot in 1196/7, he was presumably the tenant of one of the knights who did, showing how the service, as well as the land, was divided as it was pushed down free-holding society. A similar descent doubtless explains how William FitzHerlewin owed just 7d. per annum `for the guarding of Norwich castle ’ (and also 2d. for watchmen), how Julian de Suathefeld, a tenant of the bishop’s, owed 42d. in lieu of thirty weeks’ service in that castle, and how the land of Thomas of Hastings in Gissing (where he held one of four manors) owed 29d. in commutation of castle-guard there on each of five occasions in two years. Robert FitzRichard, holding part of a fee in Deopham, owed 20d. for castle-guard and an additional 2½d. for watchmen, one of several such dues to be associated with castle-guard at Norwich, and also found at Tickhill,28 though elsewhere the duties of a castle watchman seem to have been more often either provided by serjeanty tenure, as was the case at Launceston,29 for instance, or simply paid for in wages.

 

Complications and abuses

The process of commutation was incomplete, however, and this probably helped to breed uncertainties concerning the performance of castle-guard which the king and his officers were able to exploit. These can be illustrated from the case of Wallingford, an important royal castle commanding the upper reaches of the Thames south of Oxford. In 1197 a fine between Samson de la Pomerai and his wife and William of Upton over land at Upton included the stipulation that William would provide the service `in hosts and castle-guard (in exercitibus et wardo castelli de Walingeford’)’ appropriate to the property, and defined it as two horses, a shield and a lance, suggesting that William would provide armaments for the defence of the castle, even if he did not fight himself.30 But the possibility of personal service clearly persisted, for in 1199 or 1200 one Thomas FitzRichard, probably one of the recognitors in a Berkshire land action, was excused attendance in court on the grounds of his doing castle-guard at Wallingford, a writ from the constable having confirmed this31 (in 1205 a similar essoin was accepted from a man on duty in Dover Castle).32 In the spring of 1215 Wallingford castle was manned by paid soldiers, but when King John decided that these were insufficient, he issued writs in April and May to nineteen men, presumably all tenants owing castle-guard, ordering them to serve in the castle, and followed this up on 13 May with an order to all the knights of the honour, commanding them to take up residence in the castle, `as of old you were wont to do’.33 It is noteworthy, however, that even this was not enough. John’s demands on the knights of the honour led to a number of them joining the rebels,34 and probably for this reason, once civil war broke out in earnest, he fell back on an even older claim on the services of his subjects, when on 7 June 1216 he directed all the knights and free tenants of Berkshire to reinforce the garrison.35 Thus strengthened, Wallingford remained under royal control throughout the civil war.

Similar uncertainties may have prevailed at Rockingham, at least among the holders of Peterborough Abbey’s sixty fees who owed castle-guard there. The process of commutation had been far advanced by 1189, when a charter of Richard I confirmed the practice of his father’s reign, whereby the knights were to be quit of castle-guard in peacetime in return for a payment of 4s. per fee per annum.36 But wartime remained a different matter, and late in 1215, when Abbot Robert of Lindsey was attending the Lateran Council in Rome, King John endeavoured to enforce `the whole military service of the Abbot’, and when the latter’s knights resisted his demands, he ordered the constable of Rockingham Castle `that he should destrain all the military feods’, many of which, indeed, he confiscated and granted away.37 It is highly likely that John demanded the physical performance of castle-guard as part of the abbot’s service, for when on 30 May 1216 he granted the manor of Benefield, forfeited by Nicholas of Bassingbourne, to Baldwin de Gynes, he stipulated that it was to be held `by the service of one knight for the keeping of our castle of Rockingham’, this being the only service required of him.38

Castle-guard at Rockingham may well have seemed especially valuable at this time because John was finding it increasingly difficult to pay the wages of the garrison, so much so that on 3 March he had ordered the constable to give forty days’ pay to the knights under his command, and then told him that henceforth they must live off their own [de suo vivant].39 The knights themselves plainly resented the king’s demands, and at least sixteen of them – out of forty-one (some knights held more than one fee), well over a third – joined the rebels.40 After John’s death the regency government tried to enforce their service at Rockingham, ordering the constable not to distrain the abbot and monks, but telling him `to betake yourself to the lands of the knights who hold those fees of them for which they should perform those [castle-]guards’, but it was probably only the end of the civil war which put a stop to their recalcitrance – by 1221 it was commutation, not service, which was once more at issue.41 

In 1214 and the early months of 1215 John had added to the garrisons and built up the stores in his castles, and had also financed works in many of them.42 His precautions proved to have been well-taken. Castles were essential power-bases – it was per vim constabularii Norwic’ that the royalists for a while exercised authority in Norfolk43 – and of course they were also military strongpoints. The civil war which broke out in the autumn of 1215 proved to be very largely one of sieges, as the chronicles amply document, while the two battles which decided the conflict arose directly or indirectly from the extended sieges of the castles of Lincoln and Dover respectively. Of the castles which John had had strengthened, either with men or masonry, or both, at least ten – Corfe, Dover, Lancaster, Northampton, Rochester, Salisbury, Shrawardine, Tickhill, Wallingford and Windsor – were at least potentially manned by castle-guard. There is no way of telling if commutation rates were increased by the constables charged with reinforcing these (and doubtless other) strongholds. But taking into account King John’s particular needs, and also the rise in soldiers’ wages during the years on either side of 1200,44 it seems highly likely that they were, as, indeed, Clause 29 itself suggests. Since some of these fortresses were nominally served by many tenants, with sub-tenants who may also have been targeted, the discontent that resulted could have been widespread.

A few earlier cases suggest how resentment could arise. At some point between 1177 and 1189 Abbot Benedict of Peterborough `at great cost and with immense labour’ came to an agreement with Henry II that in peace-time his knights should not pay more than 4s. per fee in commutation of the castle-guard they owed at Rockingham. According to the abbey chronicler, they had been `molested with great injuries and exactions’, and forced to pay half a mark or more, `according to the will of the constables ...’.45 It was this settlement which Richard I’s charter of 1189 confirmed, specifying that it only applied to times of peace – as the years during which the agreement was reached had been. Once such arrangements were made, those who benefited from them quickly claimed the status of custom for them, and resisted efforts to alter the terms on which service was done, or commuted. In 1206 one William FitzAlan, seemingly the tenant under Simon of Kyme of three quarters of a knight’s fee at Kirkby Laythorpe and Evedon, put himself on the grand assize to prevent Simon passing on to him a demand from the constable of Lincoln for a higher commutation rate than the 5s. 4d. he had been accustomed to pay.46

Equally suggestive in this context is King John’s order to a number of sheriffs, issued on 3 June 1207, commanding them to distrain all the knights and free tenants who owed castle-guard to Richmond to perform the service they owed, `as they should and are wont to do them, lest we hear further outcry for want of justice.’47 The status of Richmond Castle at this time is not entirely clear. It was in the king’s hand when the order was issued, having been confiscated from its constable, Roald FitzAlan, as a result of his opposition to the thirteenth. It had been nominally under royal control since 1171, but only Henry II had spent any money on it, and Roald may have regarded himself – and been regarded – as its effective lord. His command there would probably have been less abrasive, and more amenable to local interests, than that of the king’s agents (John’s order that the castle be seized was sent to the notoriously exacting Hugh de Neville), who might well have signalled their arrival by an instant demand for castle-guard payments at an exorbitant rate – something would certainly have constituted `want of justice’ in the eyes of the tenants.

 

Ambitious intentions

Although circumstances occasionally led to tenants who owed castle-guard being called upon to perform their service in person, the commutation of service for money was so far advanced by the beginning of the thirteenth century, at Richmond as almost everywhere else, as to make it very unlikely that the injustice implicit in John’s order of 1207 involved compelling tenants to commute their service instead of allowing them to perform it. Rather the issue then, as in 1215, was surely not so much the commutation itself as the rate at which it was set. By the time of Magna Carta, it would seem, castle-guard had all too often become effectively a means of extortion, affecting a large number of people, and from having been negotiated it was now imposed with all the force at the disposal of the king’s military officers. That, or simply the fear of it (a fear which might well have been exacerbated by the searching inquests of 1212 into tenures and services),48 could plausibly have affected the conduct of the Peterborough knights, for instance, whose rate of 4s. per fee had been fixed for peacetime service only. Clause 29 thus constituted an attempt to extend the rights of barons and knights at the expense of those of the crown.

In this it resembled Clause 12, dealing with scutage, the commutation of military service for cash, which had hitherto been levied in accordance with the will of the king, and nobody else, for the commutation of castle-guard for money had hitherto been ultimately determined at the pleasure of the lord concerned. But whereas scutage was exacted at a uniform rate from every tenant-in-chief who did not serve in the host or was not granted quittance, castle-guard was required from a relatively small number of tenants-in-chief and sub-tenants. The processes of subinfeudation meant that the distribution of service had become widespread, but the numbers involved were hardly comparable with those of the servitium debitum of the whole country.  Moreover the commutation rate differed, not only from castle to castle but even among the tenants of a single castle – for Richmond, for instance, it came to be 6s. 8d. per fee for Yorkshire, but 10s. per fee for tenants of the honour in every other county except Norfolk, where the rate varied. Under such circumstances it was hardly possible to lay down what the rate should be, or to reserve its determination to the common counsel of the realm, as was done with scutage.

The chosen response to this problem, as contained in Clause 29, was hardly less revolutionary than Clause 12, since to all outward appearances it gave the tenants the right to choose how they would perform the service required of them, treating the king’s needs, and wishes, as irrelevant, and placing an absolute prohibition on the power of royal officers to compel their service in one form rather than the other. How seriously men owing castle-guard really wished to perform it is impossible to say. The steady trend towards commutation throughout the twelfth century makes it seem unlikely that many tenants truly preferred to take time away from their usual occupations to man the stronghold of a lord who might be living a considerable distance, or even hundreds of miles, away, just as it is difficult to believe that resistance to this trend had arisen from baronial and knightly resentment at being deprived of a form of service which had become an agreeable social amenity, enabling tenants to pass a few undemanding weeks in one another’s company in a lordly residence.49 It seems more likely that Clause 29 was intended to pose a threat to the defensibility of certain castles, and so to compel negotiations between constables and tenants on terms more favourable to the latter than any they had latterly been offered.

In the circumstances of 1215, that threat may have been meant to be more than just a bargaining ploy, a possibility suggested, for instance, by the number of rebels among the Peterborough knights. The clause did not forbid constables to dispense with castle-guard altogether, though presumably there was nothing to stop their doing so, but seems to have been drafted on the assumption that it would continue to be exploited in one form or the other, in demands for either men or money. From the king’s point of view, however, some men were much better than others. Mercenaries, upon whom King John relied heavily for armed manpower, whether or not their pay originated in money given in commutation of castle-guard, could have been expected to remain loyal to the king who gave them their wages. But the immediate implementation of Clause 29 could have meant that a number of royal castles, some of them of great military importance, would have been at least partly garrisoned by men whose loyalty to the king might have been outweighed by their links to their lords and to one another, to the extent of endangering John’s hold upon the fortresses concerned.

The possible consequences are shown by John’s treatment of Pevensey and Hastings castles. On 24 June 1215, possibly in response to Clause 29, he ordered the sheriff of Sussex to `distrain those who owe castle-guard [custodiam] in our castle of Pevensey, so that without delay they perform that guard in the same castle as they should and are wont to do’.50 How far Pevensey was in fact a royal fortress is uncertain; Gilbert de l’Aigle was at least intermittently lord of Pevensey,51 but the castle was referred to as the king’s in a lawsuit in 1203,52 and in 1215 and afterwards John clearly regarded it as being at his disposal. For his order of 24 June evidently failed to have the desired effect – perhaps the knights of the honour refused to serve – and on 8 October he sent a force of ten sergeants to man the castle, its constable having notified him that it was `insufficiently provided with men.’53 The king was unsure about the need for this measure, and gave instructions that if the earl of Arundel thought that Pevensey was in fact adequately manned, then the reinforcements should be sent back to him.54 The earl probably did so consider, for the sergeants appear to have ended up in another south-coast castle-guard stronghold, that of Hastings.55

Hastings Castle was the caput of an honour held by the counts of Eu. It had been taken into the king’s hand on the death of Count John in 1207, but was conveyed to Ralph de Lusignan on 26 May 1214.56 But as with Pevensey, John regarded the castle as being still his to dispose of, and although no fewer than sixty knights owed castle-guard to it, in September 1215 he sent a force of sergeants there, to be maintained ad solidos nostros.57 But either because the military situation deteriorated, or because he ran short of money, John decided that after all he had no need of Hastings and Pevensey Castles, even though their position on the south coast might have been expected to give them strategic value. Prince Louis and his army landed in Kent on 21 May 1216, whereupon John, who had gathered forces to resist the invaders, decided to retreat towards Winchester. He passed by Hastings and Pevensey, and as he went he had both their castles destroyed58 – on 26 May he sent order to Matthew FitzHerbert to receive Pevensey from the earl of Surrey, and then to have it demolished.59 He had retreated from a confrontation with the French, according to the Dunstable annalist who recorded the destruction of the castles, `because he did not fully trust his own men.’ Those men, it may be assumed, also included the castle-guard tenants with whom he could have tried to garrison the two fortresses. There is no way of telling if they would have been willing to serve thus, but it is clear that John was not prepared to put the matter to the test, and preferred to do without the castles altogether rather than place their defence in the hands of men he could not rely upon.60

 

The problem of dual service

Clause 29 was not concerned only with commutation as an alternative to service, for it also addressed the issue of how the tenant should be treated who owed two forms of service, as many did, both in a castle and in the field. Although the two forms of service could be alternatives – in 1166 the ten knights enfeoffed upon the lands of Cerne Abbey in Dorset all owed castle-guard at Corfe for a month each year, but only if the abbot was not required to send men to the host, when only two of them were obliged to go (later reduced to just one by Henry II)61 – the evidence suggests that that the holders of knights’ fees were more often required to act in both capacities (presumably they either paid commutation or provided a substitute for the service which they did not perform in person). This can be seen with particular clarity in some of the detailed inquests of the thirteenth century. In 1272, for instance, Hugh de Balliol was recorded as holding five manors in Northumberland `by rendering 5 marks and 6d. yearly for the guard of the castle of Newcastle on Tyne, going in the king’s army with two knights at his own charges for 40 days, and afterwards at the king’s charges ...’.62

But similar demands were made much earlier. Thus William of Upton drew up his settlement with Samson de la Pomerai in 1197 in terms relevant to service in exercitibus et wardo castelli de Walingeford’ – `in the host and in the guarding of Wallingford castle ...’.63 Hamo of Gatton (the holder of five fees in Surrey and Kent) and Aubrey de Marinis (who held two fees in Kent of the honour of Hagenet, which was itself held by the constable of Dover) went with King John to Poitou in 1214. They also owed castle-guard at Dover, and were manifestly not released from this obligation on the grounds of their service abroad, for they found it necessary to obtain royal letters to William Brewer, in terms anticipating those of Clause 29, ordering that they be quit of this second duty for as long as they were overseas.64 Similar considerations probably lay behind the order which John sent to the sheriff of Northamptonshire on 5 November 1213, notifying him that he had acquitted William FitzHamo `and his knights’ of the castle-guard they owed to Northampton for the year 1212/13 (William was lord of the barony of Wolverton, made up of fifteen knights’ fees, a number consistent with a mid-thirteenth-century record of their castle-guard service having been commuted for £7 10s. per annum, that is, at 10s. per fee).65 No reason was given, but as William served in Ireland in 1210, and in Poitou in 1214,66 he may well have been involved as well in the king’s planned expeditions to Wales in 1212 and to France in the following year, and earned his quittance from castle-guard thereby. But if that is correct, then here too such a quittance can be seen to have been formally necessary, the performance of one kind of military service did not automatically bring exemption from another – as Clause 29 granted that it should, but now as a general principle rather than as a personal concession.

Commutation was organized in broadly similar ways, in that it could be arranged for both scutage and castle-guard in identical terms, and without any suggestion that payment for the one entailed remission for the other. This can be seen in litigation, for instance in the action for arrears of service which the Cambridgeshire baron Robert de Pinkeny brought against Richard de Sifrewast in 1212, when he claimed that Richard, who held a third of a fee of him in Chesham, Buckinghamshire, owed him a total of 51s. 1d.: `for the scutage of the army of Scotland [1209], half a mark; for the scutage of the army of Ireland [1210], one mark; for the scutage of the army of Wales [1211], 8s. 10½d.; for the guarding of Windsor Castle, of which he should perform a third, 22s. d., for three years and a term ...’.67  No less precisely, the justice Richard of Herriard, when granting Bedfont vill in Middlesex to Thomas of Haverhill in 1205, specified that he was to perform the service of one knight, when required, `in money’ (in denariis), and castle-guard at Windsor, when required, `likewise in money’ (similiter in denariis).68 In 1201 Richard had himself been granted quittance of a number of duties, including castle-guard, by the king, `for as long as he shall be in our service’.69 The services he rendered are much more likely to have been judicial than military, and the same is true of John of Guestling, also a royal justice, who in the following year proffered two palfreys, the equivalent of ten marks (£6. 13s. 4d.), for exemptions which also included castle-guard (he cleared his debt in 1209).70 It is nonetheless significant that men with official duties which involved performing important services to the king should have felt obliged to obtain release from this one – castle-guard, whether performed in cash or in person, seems to have been a service that was not lightly dispensed with.

Despite castle-guard’s potential usefulness as an adjunct of lordship, its value, and therefore its survival, must by 1215 have become primarily financial. This is not always easily assessed, but it has been estimated that later in the thirteenth century the sums paid in lieu of castle-guard at Richmond amounted to about £80 per annum, while castle-guard at Lancaster was worth £36. 15s., at Tickhill £30 and at Hastings £20 per annum.71 All these castles were at best only occasionally in the king’s hand, and it was their baronial lords who usually received these sums. The royal castle of Rockingham was owed the service of 120 knights’ fees, of which sixty were held of the abbot of Peterborough and paid 4s. apiece instead of performing castle-guard, a total of £12. So if the remaining sixty paid at the same rate, then the constable of the castle should have received £24 per annum towards the cost of manning the castle in peacetime. The usual resident garrison there has been estimated as consisting of thirteen or fourteen knights, so that if each served for the conventional forty days, at what had by 1199 become a knight’s accustomed daily wage of 2s. (it had risen from 8d. a day in the 1160s), then the total of their wages for this limited period alone would have amounted to at least £52. But although the commuted rate was nowhere near enough to hire full replacements for the knights involved, the sum was still a significant one, while its collection was probably well organised – in the early 1250s half of virgate of land in Rockingham was said to be held `by the service of collecting the guard [rent] of Rockingham Castle to the king’s use, and distraining for it, with the aid if necessary of the constable of the castle ...’.72

A number of the Norfolk landowners recorded in 1198/9 as making payments in lieu of castle-guard were also recorded as paying scutage, or receiving quittance from it, presumably because they had served in the host – for instance Hugh of Polstead, who owed castle-guard at Dover, went quit of scutage in 1210, when he is known to have accompanied the king to Ireland.73 It is unfortunate that the exact terms under which commutation for castle-guard was paid in Norfolk are not recorded with any consistency, but in a number of cases it was specifically said to have been an annual render. Thus the land of Geoffrey FitzGeoffrey in Panworth was described as owing `7d. per annum to the guarding of the king’s castle of Norwich’, and William de Francheville owed half a mark yearly to Dover Castle from his land at Langford, while Theobald Walter owed 13d. twice every year to Eye Castle from Robert FitzRoger’s fee at Wootton.74 There are no references to exemptions, making it seem highly likely that such men paid automatically for their castle-guard regardless of whether or not they also paid scutage or served in the host at the king’s command. But although the trend towards commutation was also one favourable to regular payments, it is possible that the numerous landowners who were not said to have given money in commutation every year paid instead as and when the king’s officers thought fit, and were thus more vulnerable to extortion that those who had come to give modest yearly sums.

Those who did and those who did not – if there were any – pay regular sums in lieu of castle-guard must have come to resent having to pay at all, if they also served in the host or paid scutage instead, although it appears to have been long-established practice that they should do so. The fact that the second part of Clause 29 seemingly treated castle-guard and host duty as performed in the context of a single unit of time, within which the two forms of service were henceforth to be set off against one another, may indicate that the forty days conventionally required for service in the host had come to be regarded as embracing garrison duty as well, or at least reflected a feeling that they should so. That has to be surmise, and the fact that no account by a constable of a castle which was nominally manned by castle-guard survives from John’s reign, similarly makes it impossible to tell precisely what exactions might have provoked Clause 29. But it appears highly likely that like several other clauses in Magna Carta, it originated in extortionate demands for money by the king’s officers, a trend probably intensified in recent years, and in the resentment to which these gave rise. In the form it took Clause 29 was both audacious – an attack on the king’s hitherto undisputed right to decide how his castles were best defended – and, in the stress it laid on service, more than a little disingenuous, since the issue was in fact primarily a fiscal one . Although in the immediate circumstances of 1215 it may have also have been drafted in the hope of undermining the king’s control of some important strongholds, its main purpose (which it shared with Clause 12) was that of controlling one of the ways in which John raised money, using means which were potentially – and no doubt often actually – oppressive, and which could also be presented as unreasonable and unjust.

1

F.M. Stenton, The first century of English feudalism, 1066-1166 (2nd edn., Oxford, 1961), 206-9

2

For castle-guard in general I have relied particularly on Stenton, The first century of English feudalism, 192-217; S. Painter, `Castle-guard’, R. Liddiard (ed.), Anglo-Norman castles (Woodbridge, 2003), 450-9; M. Prestwich, `The garrisoning of English medieval castles’, R.P. Abels and B.S. Bachrach (eds.), The Normans and their adversaries at war: essays in memory of C. Warren Hollister (Woodbridge, 2001); J.S. Moore, `Anglo-Norman garrisons’, Anglo-Norman studies xxii (Woodbridge, 2000), 205-59.

3

C.W. Hollister, The military organisation of Norman England (Oxford, 1965), 140-1.

4

T.K. Keefe, Feudal assessments and the political community under Henry II and his sons (Berkeley, 1983), 77.

5

R.R. Davies, Lordship and society in the march of Wales, 1282-1400 (Oxford, 1978), 77-8.

6

A.A.M. Duncan, Scotland: the making of the kingdom (Edinburgh, 1975), 383-4.

7

J. Otway-Ruthven, `Knight service in Ireland’, Journal of the Royal Society of Antiquaries of Ireland 89 (1959), 1-15, at 7.

8

Curia Regis Rolls ix, 4-5 Henry III, 1220 (348-50); T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 149-50.

9

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 288.

10

Figures from R.A. Brown, `A list of castles, 1154-1216’, English Historical Review 74 (1959), 249-280. They are derived from written sources alone, and it seems likely that they could be added to from archaeological discoveries made in the last half-century.

11

Painter, `Castle-guard’, 203 and nn. 3-4.

12

Curia Regis Rolls xiii, 11-14 Henry III, 1227-1230 (1959), nos. 992-3.

13

TNA:PRO, JUST 1/775 m. 16.

14

J.S. Brewer and C.T. Martin (eds.), Registrum Malmesburiense, 2 vols. (Rolls Series, 1879-80), ii, 247.

15

F. Suppe, `The persistence of castle-guard in the Welsh marches and Wales: suggestions for a research agenda and methodology’, R.P. Abels and B.S. Bachrach (eds.), The Normans and their adversaries at war: essays in memory of C. Warren Hollister (Woodbridge, 2001), 201-221, at 208.

16

Prestwich, `The garrisoning of English medieval castles’, 192.

17

C.W. Foster (ed.), The Registrum Antiquissimum of the cathedral church of Lincoln ii, Lincoln Record Society 28 (1933 for 1931), no. 237 (pp. 84-5).

18

Sir H. Maxwell Lyte (ed.), Liber feodorum. The book of fees commonly called Testa de Nevill, 2 vols. in 3 (1920-31), ii, 1327.

19

B. Dodwell (ed.), Feet of fines for the county of Norfolk, 1198-1202, Pipe Roll Society new series 27 (1952 for 1950), no. 244 (p. 108).

20

For Dover I have followed N. Denholm Young, History and heraldry, 1254 to 1310: a study of the historical value of rolls of arms (Oxford, 1965), 64-89, correcting Painter, `Castle-guard’, 204-5.

21

Book of fees ii, 1326.

22

Keefe, Feudal assessments. The document cited occurs in J. Harris, The history of Kent i (1719), 372.

23

Details from C.T. Clay (ed.), Early Yorkshire charters v: The honour of Richmond part ii, Yorkshire Archaeological Society record series, extra series ii (1936), 1-16.

24

Details from Moore, `Anglo-Norman garrisons’, 225.

25

Jocelin of Brakelond, Chronicle of the abbey of Bury St Edmunds, ed. and trans. D. Greenway and J. Sayers (Oxford, 1989), 58-61..

26

D.C. Douglas (ed.), Feudal documents from the abbey of Bury St Edmunds (Oxford, 1932), no. 90 (p. 99); H. Hall (ed.), The red book of the exchequer, 3 vols. Rolls Series, 1890), i, 392.

27

 Book of fees ii, 1324-9

28

Ib., 1148, 1150.

29

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835), 340.

30

Feet of fines of the ninth year of the reign of King Richard I, A.D. 1197 to A.D. 1198, Pipe Rolls Society 23 (1898), no. 64 (pp. 44-5)

31

Sir F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols. (Record Commission, 1835), i, 355-6.

32

Curia Regis Rolls iv, 7-8 John, 1205-1206 (1929), 30

33

Rot.Lit.Pat., 132, 134, 135.

34

C.D. Tilley, `The honour of Wallingford, 1066-1300’, unpublished Ph.D. thesis, King’s College, University of London (2011), 338-48, accessed through https://kclpure.kcl.ac.uk/portal/

35

Rot.Lit.Pat., 186.

36

L. Landon (ed.), The cartae antiquae, rolls 1-10, Pipe Roll Society new series 17 (1938), no. 214 (p. 106).

37

S. Gunton, The history of the church of Peterburgh, ed. S. Patrick (1686, reprinted Peterborough and Stamford, 1990), 296.

38

T.D. Hardy (ed., Rotuli chartarum, 1199-1216 (Record Commission, 1837), 222.

39

Rot.Lit.Claus. i, 250.

40

I have used the list in Hall, Red book of the exchequer, ii, 618-19, there dated to 1211-12.

41

Rot.Lit.Claus. i, 297, 545.

42

For details see the commentary on Clause 28.

43

PR 17 John (1215), 10 (citing TNA:PRO E 159/1 m. 3).

44

P.D.A. Harvey, `The English inflation of 1180-1220’, R.H. Hilton (ed.), Peasants, knights and heretics: studies in medieval English social history (Cambridge, 1976), 57-84, at 67-8.

45

R.C. Van Caenegem (ed.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), ii, no. 612 (p. 650).

46

Curia Regis Rolls iv, 137-8.

47

Rot.Lit.Pat., 73.

48

S. Painter, The reign of King John (Baltimore, 1949), 208-9.

49

As suggested by S. Painter, Studies in the history of the English feudal barony (Baltimore, 1944), 46.

50

Rot.Lit.Claus. i, 217.

51

I.J. Sanders, English baronies: a study of their origin and descent, 1066-1327 (Oxford, 1960), 136-7.

52

Curia Regis Rolls ii, 3-5 John, 1201-1203 (1925), 242-3.

53

Rot.Lit.Claus. i, 156.

54

Rot.Lit.Pat., 156.

55

Ib., 158.

56

Sanders, English baronies, 119-20; Rot.Lit.Pat., 116.

57

Rot.Lit.Claus. i, 228.

58

H.R. Luard (ed.), Annales monastici, 5 vols. (Rolls Series, 1864-9), iii, 46.

59

Rot.Lit.Pat., 184.

60

John’s treatment of Malmesbury Castle might appear to have been broadly similar – he made elaborate arrangements for its garrisoning when he granted it to the nearby abbey on 18 July 1215, but licensed the monks to demolish it on 9 July 1216. But Malmesbury was well away from the battle lines, and the monks were prepared to pay nearly 200 marks for permission to remove buildings which greatly inconvenienced them. Rotuli chartarum, 213, 222; Registrum Malmesburiense, i, 430, ii, 81.

61

H.M. Chew, The English ecclesiastical tenants-in-chief and knight service (Oxford, 1932), 101-2, citing Hall, Red book of the exchequer, i, 212.

62

Calendar of inquisitions post mortem i: Henry III, no. 804.

63

See n. 28 above. The emphasis is mine.

64

Rot.Lit.Claus. i, 167. For their lands see Book of fees i, 271, 582; ii, 1465.

65

Rot.Lit.Claus. i, 154; Sanders, English baronies, 100; Book of fees i, 19.

66

T.D. Hardy (ed.), Rotuli de liberate ac de misis et praestitis, regnante Johanne (Record Commission, 1844), 183, 206, 221; PR 11 John (1209), 12.

67

Curia Regis Rolls vi, 11-14 John, 1210-1212 (1932), 379-80.

68

PR 7 John (1205), 171-2.

69

Rot.Lit.Pat., 2.

70

PR 4 John (1202), 216; PR 11 John (1209), 12.

71

Painter, English feudal barony, 133-4.

72

Calendar of inquisitions post mortem i, nos. 210, 246.

73

Rotuli de liberate, 199; PR 12 John(1210), 32; Book of fees ii, 1329.

74

Book of fees ii, 1324, 1327.


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Original Latin

XXX

Nullus vicecomes, vel ballivus noster, vel aliquis alius capiat equos vel caretas alicujus liberi hominis pro cariagio faciendo, nisi de voluntate ipsius liberi hominis.

30

No sheriff, or bailiff of ours, or anyone else is to take any free man’s horses or carts for transporting things, except with the free man’s consent.

Audio commentary

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Commentary for academic researchers

Aims and alterations

Like its two immediate predecessors, Clause 30 addressed one of the activities of officials, in this case the practice of commandeering forms of transport, specifically horses and carts, without the consent of their owners, these being no less specifically restricted to free men – the property of villeins was not protected. Derived from no. 20 of the Articles of the Barons, and formulated in words differing very little from those of the latter, Clause 30 underwent considerable modification in the re-issues of 1216 and 1217, in ways which are taken into consideration here because they help to elucidate the intended scope and purpose of the original text.1 It is not completely clear, indeed, what its scope was intended to be – the `anyone else’ (aliquis alius) to whom its prohibition was extended may well have meant only all the other agents of the king, of whom there were many, but it could also have been included as a way of covering the activities of all other officials whatsoever, baronial as well as royal, in so far as they affected free men. The term may even have been deliberately left vague, to enable the latter interpretation to be put upon a clause whose thrust was nevertheless primarily directed against the king and his servants. Only the latter’s activities are discussed here, for lack of evidence concerning those of the magnates, but the possibility should be kept in mind that Clause 30 was intended to have a wider remit.

There are difficulties, too, in defining the practice which Clause 30 was designed to remedy. It would seem that the earliest English kings were entitled to carrying services from their subjects,2 but by 1066 these had probably been subsumed within the so-called trinoda necessitas of army service, bridge-building and fortress-making, leaving only, perhaps, an obligation (from which a few exemptions were granted) to carry timber. It may be that the king could still use this ancient right in wartime to demand that his subjects help him to transport his army and its supplies, a possibility suggested by the charter which King John issued on 30 July 1209 on behalf of Durham Cathedral priory, recording that Prior Bertram had `at our request, in response to our necessity, given us present aid in terms of the cartage (de carreio) of his land for our army which we are leading into Scotland ...’.3 Since the charter continued by declaring that the prior’s services on this occasion were not to be treated as customary, or demanded as a due, either from him or his successors, it seems possible that others, less privileged, could still be imposed upon in this way.

John’s charter for Durham seems to have no parallels, however, and it appears likelier that the purpose of Clause 30 was to afford protection to all free men against what was effectively a form of purveyance, the practice of taking goods on the king’s behalf against the promise of future payment. But it did not explain how the interests of the free were to be distinguished from those of the unfree with which they were often bound up: if serfs lost their means of transport or conveyance, at harvest-time, for instance, or on market-days, their lords risked suffering financial loss through being deprived of carrying services (averagia) which for some lords, at least, long remained an important due which they were determined to preserve.4 Yet the king’s right to purveyance of this sort would have well-nigh disappeared had the protection afforded to the free by Clause 30 been by implication extended to the latter’s unfree dependents as well. In 1216 an attempt was made to dispel uncertainties when the prohibition was reworded to cover `anyone’s’ (alicuius) horses and carts, while omitting any reference to consent, and instead spelling out that the practice became acceptable when (and only when) it was paid for at what were described as long-established rates – 10d. a day for a two-horse cart and 14d. a day for a three-horse one. This still did not settle the issue, and when this rephrasing was carried over into the 1217 re-issue, it was accompanied by a further gloss, stipulating that no `demesne cart’ was to be taken from any churchman, knight or lady. The parson’s glebe or the landowner’s home farm were not to be troubled, but everyone else, free and unfree alike, remained exposed to the demands of the king’s officers, on condition that they received payment at specified rates for what was taken. If Clause 30 is understood as having been directed only against the conduct of the king’s officials, then these amendments can be construed as maintaining the rights of lords in the property and services of their serfs. But if it is regarded as covering the activities of baronial officials as well, then the changes made in 1216-17 would have resulted in lords having to pay for horses and carts taken from their own serfs, an improbability which suggests that this interpretation should be treated with caution.

On one further point the three issues of 1215-17 were not so much ambiguous as completely silent, in that they said nothing about the king himself. In the next clause of Magna Carta, King John was made to undertake that neither he, using the royal plural, nor his bailiffs would seize other men’s timber, but no. 30 was ostensibly concerned only with the king’s officers. It is possible that the `anyone else’ of the clause carried the additional weight of an oblique reference to the king, but it seems more likely that it represented an insurance against omission, included to cover everyone who might claim to act in the king’s name. That said, it seems improbable that the constraints on the taking of horses and carts were not meant to apply to the king as well as to his agents, given that purveyances were taken for his ultimate benefit, and on the understanding that he would pay for them.

 

Means of transport

Henry II and his sons naturally had horses and carts of their own, and sometimes had carts made, but they constantly needed more, for the movement of supplies in undertakings like Henry’s expedition to Ireland in 1171, for instance, when thirty carts were hired to carry supplies for the army from Abingdon and Newbury to Bristol, and probably as many to take corn from Oxford to the latter port,5 and also as essential tools in the government of their realms – the speed with which King John moved around England would have been impossible without a plentiful supply of carts, and of horses to draw them. In this respect he was fortunate, in that the twelfth century saw the development of lighter and more easily-manoeuvred carts, while horses came very largely to replace oxen as the main agents of haulage.6 Less powerful than oxen, and more expensive to maintain, horses could probably travel twice as fast – it has been estimated that a fully-loaded horse-drawn cart could travel between twenty and twenty-five miles per day.7 Magna Carta itself shows that these were the animals used by John, since it speaks only of horses and carts. Horses could indeed be carriers in their own right, in the form of pack-horses (summarii), and the prohibition of Clause 30 doubtless also applied to these. They were used to move small loads, and also light and valuable objects; when Henry II was at Rouen in 1180, for instance, the contents of the king’s chapel, probably consisting mainly of vestments, church plate and reliquaries, appear to have gone by packhorse, those of his chamber by both packhorse and cart, and the buttery, with its barrels of wine, by cart alone – a quadriga with iron-bound wheels, apparently drawn by three horses.8 At the end of John’s reign his chapel was still conveyed by a packhorse.9 But from the fact that the horses referred to in Clause 30 were described as equi rather than summarii, it would appear that they were considered primarily as agents of haulage, rather than as carriers, and that their most important place was the one they took between the shafts of carts.

There were several types of cart available by around 1200. Henry II’s quadriga was one of the largest, usually pulled by four horses rather than three. But the one most commonly recorded was the caretta, a light two-wheeled cart commonly drawn by one or two horses. It could be synonymous with the biga, which was probably a larger form of the caretta, usually hauled, as its name suggests, by two horses, but capable of accommodating four; on 10 April 1208 John ordered the reeve of Winchester to have a good biga made for him, with harness and traces for four horses, and to have it sent to him at Northampton by 15 April.10 Although the deadline looks impossibly tight, it still suggests that such vehicles could be quickly and easily made. The cart, which was recorded in the pipe roll as a caretta, was duly delivered, whether on or even near to the prescribed day it is impossible to say, but was described as `bought’, not `made’, suggesting that the reeve tried to meet the king’s demand by purchasing a cart ready-made, rather than having one built to John’s specifications. It cost 76s. 8d., showing that it was a very superior, and probably very large conveyance – the value set on carts, usually along with a horse or two, when they became deodands at eyres of John’s reign or of the early years of Henry III’s, seldom amounted to more than a few shillings, and could be even less. A cart without a horse which was recorded in 1203 as having crushed a Shropshire man was said to have been sold for just 6d.11

 

Government requirements

Such vehicles, inexpensive to make but still heavy enough to crush anyone they ran over or fell upon, could be found all over England by the beginning of the thirteenth century. They were vital to the transport of goods in a society which was rapidly gaining commercial experience and expertise, and they were no less necessary to the king and his officials who aspired to rule it. Unfortunately, government records which tell of the movements of carts are often unclear as to their provenance. For instance, the pipe roll entry which records the expenditure of £11. 9s. 9d. in 1203 `on the cost of carts which on many occasions took treasure from London to Southampton’12 does not say whether the carts were the king’s, in which case the cost would probably have been mostly that of maintenance, repairs and the expenses of the men who escorted and drove them, or if the money was spent either on their hire or on the reimbursement of the people from whom they had been temporarily taken. This in turn means that they tend to shed more light on the government’s need for methods of transport than on the ways in which this was met.

Such a need could become apparent at any time, as events dictated; on 5 July 1205, for instance, no doubt following the abandonment of a planned expedition to France, the sheriff of Hampshire was ordered to seek out `all the strong carts (bigas) which you can obtain’ and have them brought to Southampton, to remove the king’s wines collected there.13 There must also have been an increasing need for carts to move the king’s money around the country, especially after John started to distribute hoards of cash among his major castles. In 19 July 1207 a number of sheriffs were ordered to provide the transport (carriagium) needed to enable Robert de Vieuxpont to take 11,000 marks (£7,333 6s. 8d.) from Winchester to Nottingham, one of the most important of the new castle-treasuries, which was duly performed.14 Probably the money was moved, as a further consignment of 18000 marks (£12,000) was in 1212, in sacks containing £100 each15 – 24,000 silver pennies, far more than the strongest pack-horse could have carried.

The demand for carts became more consistently urgent in the later years of John’s reign, when supplies were needed for campaigns in Britain and overseas, and also for the stocking of castles in the face of resistance and rebellion. The Welsh campaign of 1212 was particularly exigent in this respect. In the build-up to the campaign John FitzHugh was entrusted with the maintenance of a consignment of ten carts, forty-nine carthorses and twenty carters, and instructed to oversee the construction of another `five long carts, good and light, without iron tyres (sine ferruris)’, which were then to be handed over to Brother Richard of Rievaulx, who would have them fitted with tyres.16 Other, less special carts were probably taken against the promise of future payment, a task entrusted to local officials – the sheriff of Derbyshire and Nottinghamshire, for instance, provided thirty-four carts, each one with five horses and two men to conduct it.17 Such was the need for carthorses that when the army was disbanded in August, after the disclosure of a plot against the king’s life, no fewer than 200 of them were temporarily entrusted to the sheriff of Lincolnshire, who spent over £36 on their upkeep in just over a fortnight.18 Huge quantities of supplies were transported, both to distribution points on the Welsh march and then, when the invasion was called off, to other depots in England. Thus the see of Durham, then in the king’s hand, sent 275 sides of bacon, nearly 1000 quarters of corn and oats, 700 horseshoes (and nails) and sixty shovels to Chester, and certainly did so by land, since three mounted serjeants accompanied the stores,19 and the ten barrels of wine, 186 quarters of corn and oats, and 158 sides of bacon which were sent to Chester from York and then incurred extra expense when they were carried to Nottingham after the abandonment of the campaign, must likewise have been carried overland.20

Similar pressure was applied a year later. In May 1213 King John’s plans for a campaign in France included an order to the sheriff of Somerset and Dorset that he should buy `all the oats which you can find’ in those counties, `whoever has them’, with the warning that 3000 quarters would not be enough, and send them to the king, along with quantities of wooden hurdles, of ropes and cables for ships, and of thread to make cords for crossbows21 – meeting the king’s demands would surely have stripped the two counties as thoroughly of carts as it was intended to do of oats. Perhaps these carts were not needed, since there was no overseas campaign in 1213, but a further expedition was planned and took place in 1214, and as part of his preparations on 24 January John ordered the bailiff of Savernake Forest, Wiltshire (and doubtless other officials too), to have sent to Corfe `all the carts which you can acquire in your bailiwick to carry our treasure to Portsmouth ...’.22 It was presumably this order which resulted in £17. 7s. 5d. being spent on transporting and protecting the treasure,23 a substantial sum arguing for the use of many carts and a large escort for the movement of an essential part of the king’s war chest.

Officials like the bailiff of Savernake can usually only be seen dealing with horses and carts in response to government orders. A rare exception to this rule is provided by a brief account of expenses incurred by Hugh de Neville in March and April 1207, which shows one of the king’s leading servants on the road.24 He certainly travelled with carts, for on one occasion he spent 4d. on ale for the carters and himself (as well as 27½d. on hay and oats for the horses), paid 3d. for an axle on another, and gave 5d. for nails and ropes for a cart carrying bread on a third. His payments for transport as such were usually very small, just a few pence, suggesting that he was using carts which were either his own or had been commandeered at an earlier stage in his journey, but sometimes larger amounts were disbursed. His movements several times coincided with those of the court, and on one occasion in Cambridgeshire he anticipated John’s needs (at least partly religious in this case, since this happened during Lent) by paying £5 15s. for salted eels, and then a further 4s. 6d. `for the transport of eels to Hallingbury’, Neville’s own manor where the king was due to stay. This larger-than-average outlay on transport suggest that Neville hired, or requisitioned, an extra cart or two to take the eels to where they were needed. On another occasion he gave as much as 32s. 7d. pro cariagio, suggesting a similar response to some unrecorded emergency. Whether these sums amounted to what the owners of the carts regarded as a sufficient payment for them is unknown.

 

The king’s needs

More can be said, and with more precision, about King John’s own use of horses and carts, though again their provenance is not always clear. He was probably more likely than his subordinates to have used his own means of transport, if only for reasons of prestige when he felt the need to display his regality. Paradoxically, this can be illustrated most vividly from William FitzStephen’s famous account of Thomas Becket’s entry into Paris in 1158, when he had eight carts, with iron-bound wheels which grated on the cobblestones, and covers made of animal skins.25 Two of them carried barrels of ale, another four contained the contents of the chancellor’s chapel, bedchamber, pantry and kitchen. Each was drawn by five horses, with a groom for every horse and another for each cart. Becket’s progress was made in self-consciously regal style, but that King John’s could be similar may be deduced from a record of 10 August 1212 of his expenditure on twelve carters, twenty-eight cart-horses, one cart for his pantry, another for his buttery, two for his kitchen, and two more for his hunting (de venacione), all of them gathered on that one day at Silverstone, Northamptonshire.26 Three years later, with war threatening, the king’s armour, too, travelled by cart (his bed, along with the contents of the napery and the gear needed to provide the king’s dinner, the digneria, went on horseback).27

Inevitably the king’s requirements in terms of horses and carts varied according to circumstances. John himself, it may be assumed, travelled on horseback, on the best animals available, helped, perhaps by the fact that the assessment of debts to the crown in palfreys as well as cash was not always just an idiosyncrasy of exchequer practice, for sometimes it was specified that horses, and not their value in money, were to be handed over. He and his household also needed carts, of course, more at some times than others. Some requirements were incidental. In November 1207 the bishop of Winchester gave the king 100 cartloads of firewood from Fonthill Bishop, thereby making it necessary for the king to instruct the sheriff of Hampshire to arrange to have the wood carried to Winchester, presumably in 100 carts.28 Five years later, when his chamber clerk Richard Marsh presented John with a quantity of iron armour (coopertoria ferri), it was transported in a cart originally bought for the wardrobe, and drawn by three horses hired for the occasion, for a total of 15d.29 Perhaps it was a vehicle like the long cart with iron tyres which was bought for the wardrobe at Beverley in January 1213 at a cost of 23s. 6d.30  

When John went on campaign his wagon train was doubtless substantial – for the 1211 Welsh campaign, John FitzHugh spent no less than £48. 2s. d. on carts and a variety of fittings which included panniers for the king’s dinner, suggesting that John expected to be able to enjoy a series of picnics as his army advanced.31 Five years later, according to the St Albans chroniclers, carts small and large, and also pack-horses (caretas omnes, bigas, et sumarios), were lost when the king attempted to cross the Wellstream north of Wisbech as he led his army into Lincolnshire.32 But when speed was of the essence, John travelled light; in the summer of 1212, for instance, he traversed the north of England with the royal chapel on a packhorse and a single two-horse cart `carrying money and wardrobe gear’. Horses and carts were hired afresh at every stage of the journey, usually for modest sums – a typical outlay was 2s. 6d. for a two-day stop in Carlisle, and then two more days on the road to Hexham.33

 

The demands of war

The pipe roll for 1213 is lost, while that for 1214 shows unmistakeable signs of administrative confusion in the face of mounting resistance to the king’s government. But there is unambiguous evidence for a substantial restocking of Northampton and Lancaster Castles early in 1215,34 when other castles were doubtless also fully victualled – the `Barnwell’ chronicler (now shown without much doubt to have been written at Crowland Abbey)35 noted that after the baronial capture of London John made no aggressive response, `only fortifying his strongholds and castles with men and victuals ...’.36 The demand for horses and carts must have been great, becoming greater still when civil war finally broke out. No accounts survive for John’s siege of Rochester in October and November 1215, and perhaps none were made – no doubt both supplies and transport were wherever possible taken from the lands of the king’s enemies, and thus cost little or nothing. But some idea of the way a siege conducted by a king was organised, and the demand for transport which it entailed, can be deduced from the fully documented investment of Bedford Castle, captured in 1224 after lengthy operations conducted under the eyes of the young Henry III.

King Henry had the advantage over his father in that he controlled London, which provided many of his supplies, but stores were brought in from many midland and southern counties, and also from East Anglia.37 Smaller items were probably carried by packhorses, for instance the wax, almonds, pepper and other delicacies said to have been bought for the king, and perhaps also the gallon of olive oil sent from London, but much of what was brought in to the besieging forces must have been too bulky to have been carried thus. Bedford’s position on the River Ouse doubtless allowed goods to be taken there by water from east or west, but anything brought up from London, or even from nearby Northampton, must have been largely delivered by cart. This included barrels of wine, the money needed to pay soldiers’ wages, which was carried, or stored, in barrels bought for the purpose, and huge quantities of military supplies – ropes, hides, iron and coal, boards, a large number of crossbows, along with their bolts, pick-axes for the men who undermined the keep, and above all siege engines: stone-throwers, mangonels and berefrays. When all was over these were dismantled and carried away again. In an age when warfare entailed few pitched battles but many sieges, any restriction on the king’s ability to obtain transport would have damaged his military capacity along with his mobility, as the barons who drafted Clause 30 were doubtless well aware. They could remedy a grievance and undermine John’s powers of resistance at one and the same time.

 

Reimbursements

Although it is highly likely that the carts which King John and his subordinates needed to move stores and money were in large measure commandeered by the officials charged with their transport, who subsequently accounted for their outlays at the exchequer, corroborative evidence is scarce. The cost of moving money to Nottingham in 1207, for instance, was said to have come to £5. 8s. 7d., much of which should have been paid to the owners of the carts and horses involved. But whether it was so paid, and at what rates, it is impossible to say, though it can at least be said that the sums prescribed in 1216 did not invariably constitute a counsel of perfection. When John was at Nottingham in September 1212, his feasts were doubtless enlivened by the twenty cartloads of wine which he had brought up from Southampton38 (a writ of 1215 suggests that a single barrel, which should have held 252 gallons, constituted a full load for a cart).39 The carts themselves, with the three horses which drew each of them, were described as having been hired, and were paid for at the rate of 14d. apiece – precisely the rate for a three-horse cart laid down in 1216. This does not necessarily mean that they were taken by purveyance – the figure may have been chosen precisely because it represented the going commercial rate – but it does show that that sum could be paid.

The king himself, if he felt so inclined, could pay much more than the standard rate. When John passed through Northampton on 15 April 1208, he requisitioned a cart belonging to Conan the smith, and three days later, now at Woodstock, ordered the reeves of Northampton to give Conan 30s. `for one cart taken from him on our behalf’ – the same year’s pipe roll records that they did so.40 Even if hard usage had ruined the cart (there is nothing in the king’s order to suggest that the cart was returned to its owner), the payment was generous, even lavish, and certainly far more than the cart was likely to be worth. Conan the smith evidently enjoyed a windfall. But although precise evidence for the sums paid for commandeered transport, setting out the exact amount given for a specified number of horses and carts during a defined number of days, is very scanty, it is sufficient to suggest, unsurprisingly, that others received less than their due. When in 1194 the sheriff of Hampshire accounted for 7s. 3d. spent on hiring ten carts to carry lime from Andover to Marlborough, on his own showing he had paid less than 9d. per cart for what must have been at least one day’s journey and more likely two, if the return trip be taken into consideration.41 In 1212 only 2s. were paid to hire the two-horse cart which carried the king’s fruit from Gillingham successively to Bath, Bristol and Laycock, a three-day journey at the rate of 8d. a day.42 And even in 1221 the constable of Bristol gave just 3d. for every barrel of wine he had taken from the port to the castle, and 5d. for carrying a barrel to Marlborough,43 while the king’s government, though less ungenerous, still paid only £4. 14s. 2d. for the twelve carts which over ten days brought siege engines from London to Castle Bytham;44 the number of horses was not recorded, but in the light of the 1216 re-issue the hire of twelve two-horse carts for ten days’ use should have amounted to £5, or to £7 for three-horse ones.

 

Abuses

Such instances notwithstanding, the prohibition contained in Clause 30 ultimately constitutes the firmest evidence for the abuse which it aspired to abolish (a characteristic it shares with several other clauses). Its stress on consent was significant, for as with many of the activities of Angevin government there seems to have been an indistinct, and for that reason easily-crossed, borderline between volition and compulsion which was apt to be defined according to the needs, or simply the inclination, of the king and his subordinates. In July 1214 Fulk de Cantilupe was ordered to find transport to carry timber from Rayleigh park, Essex, down to the Thames (it was ultimately intended for Dover Castle), `as a boon (de prece) if you can ... and if you cannot you are to have it transported for the lord king’s money ...’.45 A similar order issued in January 1215 commanded its recipient to have timber taken to Colchester, `acquiring as many carts as you can as a loan (mutuo) and hiring others ...’.46 It is probably not unduly cynical to suppose that a request for a `boon’ or a `loan’ by an agent of King John’s government was likely to be framed in terms which made it difficult, if not actually dangerous, to refuse.

But in any case there is every reason to believe that transport could be, and was, commandeered without any pretence at consent, even though the evidence is sometimes either indirect or from a slightly later period. A formulary composed around 1250, but containing earlier material, includes a writ in which the king orders a sheriff to take all the wine he can find at a certain place, and `I also order you to arrange whatever wagons and horses you can discover in the nearby villages to be taken, and cause the said wine to be transported ...’.47 The order could have been composed in John’s reign, since it is difficult to imagine such a writ being drafted after 1215, while its tone, as well as its content, was surely one with which that king’s servants, and subjects, were entirely familiar. John’s oppression of the religious in the later years of his reign included severe demands upon their horses and carts, no doubt reflecting his own military needs. The Worcester annalist who recorded `the heavy and unheard-of tallage’ which the king imposed on all English churchmen in 1210 noted that his own church gave a cart with four horses as well as 200 marks (£133. 6s. 8d.).48 Two years later the Cistercians throughout England were singled out for harsh treatment, which took the form both of withdrawal of legal protection and also, in the context of John’s planned expedition to Wales, an order that `each abbey should prepare for him a long cart with five very good horses. Indeed, he ordered some of the great abbots to prepare two carts with ten horses for his service ...’.49 The Dunstable annalist similarly recorded (under the wrong year) that the grey abbots were forced to provide the king with carts, together with horses and men,50 and the king’s demand is confirmed by his writ of 19 July 1212 in which he notified the sheriff of Yorkshire that he was sending back two carts which the abbot of Byland had provided, `because the horses were not good’ – the sheriff was to see that the abbot now provided three good carts with good horses, the additional cart being no doubt required by way of punishment.51

That the king’s officers could be no less exigent is suggested by the return of a Surrey jury in 1205, telling how Gilbert of Germany and two other men from Guildford Castle, one of them the keeper of the king’s horses at Pyrford, had tried to buy cloth from one Robert FitzOdo in order to make horse-cloths from it. A price was agreed upon, but when the Guildford men told Robert to cut the cloth, he refused to do so until he was given the money. The reeve of Guildford was brought in to try to persuade Robert to hand over the cloth, but to no avail, whereupon Gilbert and his colleagues withdrew for a doubtless well-lubricated dinner. Returning afterwards, they again asked the reeve to obtain the cloth, to be told once more that they would have to pay first, whereupon Gilbert dragged the man out of his house and struck him such a blow on the head with the hilt of his sword as to endanger one of his eyes. The neighbours raised the hue, to which the riff-raff (stulta gens) of the town came running, an all-out brawl erupted, in which two men were wounded, and instead of carrying the reeve off to Guildford castle as their prisoner, as they intended, Gilbert and his colleagues were themselves chased into it, only just escaping capture by the irate townsmen.52 The same sense of arrogant entitlement on the part of castle officials, backed by a ready recourse to violence, is suggested by an appeal from 1218, shortly after the accession of Henry III, in which the serjeant of the earl of Salisbury, whose interests the regency government were promoting in the far north of England, accused the constable of the castle of Newcastle of assaulting him in that town and seizing a cart `loaded with his lord’s arms, money and cloth to the value of 300 marks [£200] ...’.53

In the event, the men in charge of the king’s government appreciated almost immediately that it could not operate without the ability to requisition transport as and when it needed it, as the revisions of 1216/17 make clear, with the result that even as finally amended Clause 30 was honoured far more in the breach than in the observance. All that can be said, therefore, is that it did at least attempt to lay down conditions which could limit acts of official misconduct where horses and carts were concerned, and provided a yardstick by which such malpractices could be judged.

1

Details concerning the revisions from A. Luders, T.E. Tomlins, J. France, W.P. Taunton and J. Raithby (eds.), The statutes of the realm, 11 vols. (Record Commission, 1810-28), i, 15-16, 18. There are English translations in H. Rothwell (ed.), English Historical Documents iii, 1189-1327 (1975), 330, 335.

2

F.M. Stenton, Anglo-Saxon England (2nd edn., Oxford, 1947), 286.

3

Durham University Archives, special collections, D & C Durham, 3.1.Reg.24 – a reference I owe to Nicholas Vincent. See also J. Raine (ed.), Historiae Dunelmensis scriptores tres, Surtees Society 9 (1839), lxvii.

4

See N. Neilson, Customary rents (Oxford, 1911), 60-7; R.A.L. Smith, Canterbury Cathedral Priory: a study in monastic administration (Cambridge, 1943), 122-3.

5

PR 17 Henry II (1171), 88-9, 131.

6

On this subject I have followed J. Langdon, `Horse-hauling: a revolution in vehicle transport in twelfth- and thirteenth-century England?’, Past and Present 103 (1984), 37-66; id., Horses, oxen and technological innovation: the use of draught animals in English farming from 1066 to 1500 (Cambridge, 1986), especially 14-15, 76-9, 143-55, 246-7.

7

J. Masschaele, Peasants, merchants, and markets: inland trade in medieval England, 1150-1350 (1997), 203-4.

8

V. Moss (ed.), Pipe rolls of the exchequer of Normandy ... 1180 and 1184, Pipe Roll Society new series 53(2004), 51.

9

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 221.

10

Ib., 110; PR 10 John (1208), 126-7.

11

D.M. Stenton (ed.), Pleas before the king or his justices, 1198-1212, iii, Selden Society 83 (1967 for 1966), no. 689 (p. 72).

12

PR 5 John (1203), 7.

13

Rot.Lit.Claus. i, 41.

14

Ib., 88; PR 9 John (1207), 42, 130, 139, 185, 190.

15

Rot.Lit.Claus. i, 116.

16

Ib., 119.

17

PR 14 John (1212), 161.

18

Ib., 102.

19

Ib., 47.

20

Ib., 27.

21

Rot.Lit.Claus. i, 134.

22

Ib., 162.

23

PR 16 John (1214), 44.

24

C.M. Woolgar (ed.), Household accounts from medieval England, 2 vols., Records of social and economic history, new series 17-18 (Oxford, 1992-3), i, 110-16.

25

J.C. Robertson (ed.), Materials for the history of Thomas Becket iii (Rolls Series, 1877), 29-31.

26

H. Cole (ed.), Documents illustrative of English history in the thirteenth and fourteenth centuries (Record Commission, 1844), 237.

27

Rot.Lit.Claus. i, 192.

28

PR 9 John (1207), 96.

29

Cole, Documents, 255.

30

Ib., 251.

31

PR 13 John (1211), 108.

32

H.R. Luard (ed.), Matthaei Parisiensis, monachi sancti Albani, chronica majora, 7 vols. (Rolls Series, 1872-83), ii, 667. See also J.C. Holt, Magna Carta and medieval government (1985), 111-22.

33

Cole, Documents, 234.

34

For details see commentary on Clause 28.

35

Information from David Carpenter, with reference to the work of Cristian Ispir.

36

W. Stubbs (ed.), Memoriale fratris Walteri de Coventria, 2 vols. (Rolls Series, 1872-3), ii, 221.

37

Details from PR 8 Henry III (1224), passim.

38

Cole, Documents, 241.

39

Rot.Lit.Claus. i, 229.

40

Ib., 112; PR 10 John (1208), 173.

41

PR 6 Richard I (1194), 211.

42

Cole, Documents, 244-5.

43

TNA, E 101/349/4, mm. 1, 3.

44

F.A. Cazel (ed.), Roll of divers accounts for he early years of the reign of Henry III, Pipe Roll Society new series 44 (1982 for 1974-5), 17.

45

Rot.Lit.Claus. i, 208.

46

Ib., 182.

47

M. Carlin and D. Crouch (eds.), Lost letters of medieval society: English society, 1200-1250 (Philadelphia, 2013), no. 19 (pp. 84-5)

48

H.R.Luard (ed.), Annales monastici, 5 vols. (Rolls Series, 1864-9), iv, 398.

49

R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II and Richard I, 4 vols. (Rolls Series, 1884-9), ii, 513.

50

Luard, Annales monastici iii, 33.

51

Rot.Lit.Claus. i, 120.

52

Curia Regis Rolls iv, 7-8 John, 1205-6 (1929), 87-8.

53

D.M. Stenton (ed.), Rolls of the justices in eyre ... for Yorkshire in 3 Henry III (1218-19), Selden Society 56 (1937), no. 1111 (pp. 393-4).


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Original Latin

XXXI

Nec nos nec ballivi nostri capiemus alienum boscum ad castra, vel alia agenda nostra, nisi per voluntatem ipsius cujus boscus ille fuerit.

31

Neither we nor our bailiffs are to take another man’s wood to a castle, or on other business of ours, except with the consent of the person whose wood it is.

Audio commentary

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Commentary for academic researchers

The needs of castles

Clause 31 was the last of a group of four clauses concerned principally with the manning and maintenance of castles and with bringing under control the activities of the king’s officials responsible for this. It followed naturally from Clause 30, forbidding the seizure of carts, given that loads of timber must have been among the items most often carried in the carts whose seizure that clause prohibited, and was like it in not imposing an absolute ban on the actions proscribed – after 1215 other men’s carts and wood could both still be taken, but only with the consent of their owners. They differed, however, in the role ascribed to the king, who is named directly in Clause 31 in a way that is not found in Clause 30, being represented by the royal `we’ and as referring to `our’ bailiffs. The choice of phrasing, which differed from its equivalent Article, no. 21, only in that the latter spoke in impersonal terms of `the king’ and of `his’ bailiff, was a significant one.

The `wood’ of the clause, represented by the Latin word boscus, meant growing trees rather than timber (maeremium),1 even though the trees must usually have ended up as timber in the sense of building material – as they did, for instance, in the payment recorded in 1201 of £12. 5s. 6d. `for timber from the count of Eu’s wood (pro maeremio de bosco) for the repair of the king’s castles of Dover, Rochester and Southampton ...’.2 Its purpose, in effect, was to prevent raids upon private woods, and the devastation of trees which could follow, for the construction or strengthening of royal castles. The phrasing of the Clause was surprisingly vague about this. Neither the Latin word here translated as `business’ (agenda), nor the term `chose’ used in later French translations of Magna Carta, offered any clear indication as to what purpose the wood, in any form, was intended to serve. But the earliest such translation, probably made in the same year as the Charter itself, did spell out what was at issue, when instead of `chose’ it employed the word `ovres’ – the timber was to be used for `works’.3

Wood was a basic necessity where castles were concerned.4 Some castles were in fact made of wood – York Castle appears to have consisted of a wooden keep surrounded by palisades, and when the buildings were destroyed by fire in the riots of 1190 their replacements, too, were made of wood;5 the fortress at Wheldrake for which the Yorkshire landowner Richard Malebisse took no fewer than 200 oaks from Galtres Forest in about 1204 must have been similarly constructed.6 Although by 1200 most important castles had curtain walls which were made of stone, as were the main buildings inside them, the fittings of the latter – joists, rafters, stairs and the like – were made of wood, as were the numerous ancillary buildings, like stables, storerooms and kitchens (often placed outside the halls where the garrison ate, to minimise the danger of fire) in the open spaces within the walls. If there was any likelihood of a castle facing attack, moreover, timber was also needed for the brattices and hoardings which were set along the battlements to protect the men on the walls and give them vantage points from which to shoot down. Hard usage, as well daily weathering, meant that there was a constant need for repairs, and thus for more wood. It was with good reason that in the tense period following the death of Richard I in 1199 the garrison of Tickhill Castle included no fewer than six carpenters,7 and that in 1215 the stocks needed to put Oxford Castle in a state of defence included timber (maireno) as well as weapons, victuals and stones.8

 

Royal rights and their implementation

Castles became larger and more complicated under Henry II and his sons, which in turn generated a still greater demand for supplies of wood, one which the Angevin kings satisfied through every means at their disposal. Under Henry II these included the exploitation of vacant bishoprics – in 1173, for instance, the see of Chichester, which had been unoccupied since 1169, contributed 2000 boards to works on the king’s houses in Winchester9 – and also of wardships and escheats – in 1177 Ranulf de Glanville accounted for 140 cartloads of timber, taken both from the county of Yorkshire and from the lands of Everard de Ros, who had only just entered upon his inheritance as lord of Helmsley, and a year later he spent nearly £40 on sending timber for repairs to the Tower of London from the honour of Richmond, which was in the king’s hands following the death of Count Conan of Brittany.10 The lands of rebels, too, might be ransacked for their wood. In 1179 Gervase of Cornhill accounted for £27. 3s. 4d. for wood from three Kentish estates `which were the king’s enemies’, sold in time of war ...’, and followed this up with a further £12. 4s. 5d. from the same source three years later.11

Richard I was principally concerned with the defence and construction of castles in Normandy, but King John renewed, and intensified, his father’s methods where English ones were concerned. In 1200 the lands of the counts of Brittany were again in royal hands, and were exploited accordingly – the king’s agent accounted for a total of £177. 13s. 6d. from woods in Hertfordshire, along with £11 from Yorkshire and £31. 11s. 2d. from Lincolnshire.12 Two years later John came to an agreement with Guy de Thouars, who claimed to be count of Brittany in the right of his wife, whereby the woods of the lordship of Richmond, in Yorkshire and the home counties, were to be sold by the serjeants of the count and the king acting together, and the proceeds divided equally between them.13 In the meantime the death of Brice the chamberlain had put his manor of Costessey in Norfolk at the king’s disposal, and in 1201 brought no less than £130. 10s. into the exchequer from the sale of wood.14 The lands of Simon de Montfort, earl of Leicester, confiscated by the king in 1207, yielded £106. 13s. 4d. de bosco vendito in 1210,15 and the earl’s death in 1212 brought another windfall, this time of £61. 3s. 4d.16

John’s quarrel with the church led to widespread despoliation of woodlands, with the king’s full encouragement – in August 1207 he gave formal backing to all the sales of wood and other property belonging to Canterbury Cathedral Priory carried out by two of his officials,17 and in the following November gave approval to such sales of woods of the archbishopric of York as Robert de Vieuxpont should implement.18 The woods of the archbishopric of Canterbury were treated in like manner, yielding £147. 0s. 11d. in two instalments in 1212.19 Other dioceses also saw their silvan assets stripped. When in 1212 the king wanted to give William Brewer the timber for a hall at Petworth in Sussex, he had it taken from the estates of the bishops of London and Chichester.20 So comprehensively was the bishop of Lincoln’s park at Stow-in-Lindsey wasted during the interdict that in 1215 John gave him Harthey wood in compensation.21

The king had long been entitled to exploit the assets which came to him through forfeitures, escheats, wardships and episcopal vacancies. He might – clearly did – take it to extremes, but his underlying right was undeniable. The same was true of another, and even more contentious, aspect of the royal prerogative, one which gave the king an overriding authority within every area designated as forest, regardless of whether he was the actual owner of the land affected or not. An assize issued in 1198 laid down the rules, that although lords who had property within a forest could take wood from it (on a modest scale, and without committing what was known as `waste’, defined by the Dialogue of the exchequer as the cutting down of trees `in such a way that someone standing by the trunk of a felled oak or other kind of tree and looking around can see five other felled trees’),22 they could do so only in the presence of a royal forester, that they must appoint foresters of their own to manage their woods, and that these private officials were to act under the supervision of royal ones, who were to ensure that the king’s woods were not destroyed.23 These constraints were greatly resented, and many lords, lay and secular, obtained exemption from them, from the late eleventh century onwards. Hence, for example, the clause in the charter which Henry I gave to Chertsey Abbey in Surrey, a county entirely under forest law, which entitled the monks to `have from their own wood all that is necessary for their own use, without leave of the royal foresters or hindrance from them ...’.24 The `Unknown Charter’, seemingly drawn up early in 1215 during the negotiations which led to the issue of Magna Carta, similarly represented the king as guaranteeing the rights of lords (literally `knights’) who owned woods `in my own forests’ to take what they needed from them for house-repairs and firewood.25

Whether the king’s foresters took other people’s trees on their master’s behalf is unclear, but evidence from later in the thirteenth century suggests that landowners convicted at forest eyres of `waste’ on their own property within a royal forest risked at least the temporary loss of their property, for not only were they amerced for the offence, but they also had to pay to recover their wood (boscus – in this context the term could mean either woodland or cut wood), and in addition must give 6s. 8d. at every successive forest eyre until the trees had grown back to the height at which they stood when they were cut down.26 Such measures, when considered alongside the tight controls exercised over the disposal of woodlands, not to mention the reputation and recorded conduct of King John’s foresters generally, suggest that the lords of lands within the king’s forests could consider themselves fortunate if they did not sometimes, and perhaps often, lose timber which they could reasonably have regarded as their own. No doubt it was in awareness of this possibility that Walter de Baskerville, a Herefordshire landowner who had been disseised of property at Orcop, in the king’s forest, proffered sixteen marks (£10. 13s. 4d.) when he recovered it in 1208 `for having his wood in peace’.27

The practice condemned in Clause 31 was not directly related either to the forest law – the clause referred to the king and his bailiffs, not his foresters – or to the king’s exploitation of forfeitures and the like, though successive rulers’ treatment of all these assets may well have fostered a mentality in government circles which encouraged the belief that the woods of the king’s subjects should be at the king’s disposal. It stood closer to purveyance, but although the latter privilege could plausibly have entitled its possessor to firewood, its extension to castle-building would have entailed going some way beyond what was essentially the king’s traditional right to take what he needed for the maintenance of himself and his household against a promise of future repayment. In any case there is some evidence that the rights of the crown included the power to commandeer wood for building or repairing castles. The stress laid by Clause 31 on the king’s involvement in such activities could certainly be construed as implying such a right, as, indeed, does the fact that it did not prohibit the taking of wood, but only subjected it to the consent of the men affected.

 

The evidence of exemptions

It is possible that this apparent right originated in the demands which pre-Conquest rulers were entitled to make upon their subjects for military services which included the building of bridges and fortresses. Exemptions from such duties were regularly included in royal charters after 1066, and that they still had meaning is shown by the charter which Hubert de Burgh, in his capacity of justiciar, issued for the monks of Canterbury Cathedral Priory in 1215 or 1216.28 In a time of military crisis the city of Canterbury had been put in s state of defence, and the monks were prevailed upon to sell wood to the defenders so that the walls could be fitted with hoardings. The priory’s exemptions, as set out in charters like one issued by Henry II in 1175, included `work on bridges, castles, parks, enclosures ...’,29 and Hubert pledged that this contribution to the defence of Canterbury would not be treated as a precedent in the future. However, the king’s specific right to take wood for defensive purposes, or a subject’s duty to provide it, can only be a matter of inference from such a grant, and in fact the earliest explicit evidence for any king’s right to take wood for a castle comes from Scotland, albeit at a place very close to that country’s border with England. A charter of Malcolm IV for Durham’s daughter-house of Coldingham, issued between 1153 and 1162, placed all its woods under the control of its prior and forbade anyone to take anything from them, on pain of a £10 fine, `except only for the needs of my castle of Berwick, which are a matter for myself alone ...’. To meet those needs, the king’s servants were to meet with the prior or his servants and take the wood wherever the latter saw fit.30 English-style castles were introduced into Scotland in the early twelfth century. That of Berwick is first recorded in Malcolm’s reign,31 and the needs which the grant refers to may well have been those involved in building it. Perhaps the king’s right to nearby woods was similarly imported, as an essential support for this new form of construction-work.

Although there is no certain record of the existence of such a right in England itself before the last years of the twelfth century, pleadings at the 1221 Warwickshire eyre strongly suggest that it was exercised under Henry II. The abbot of Stoneleigh complained to the justices that he was being `vexed’ in breach of his charters, and that `he cannot enjoy his charters and liberties in the wood of Stoneleigh’. To this William de Cantilupe, sheriff of Warwickshire and Leicestershire and keeper of Kenilworth Castle, some three miles west of Stoneleigh, responded that the abbot `has never had that wood, on the contrary the lord king always was in seisin thereof from the time of Bertram de Verdun, the sheriff etc., till the present day, because all the sheriffs who succeeded him always had their foresters to keep that wood, so that the abbot could take nothing therein, save by view of the foresters ...’.32

Kenilworth Castle had been expropriated from the Clinton family by Henry II in around 1173 and remained in royal hands thereafter,33 administered by the sheriff (Bertram de Verdun held that office from 1170 to 1184). Since Cantilupe, who had been sheriff since 1209, was described as `the keeper of the castle of Kenilworth with the village of Stoneleigh and several other villages’, it would appear that when the king seized the castle, he made sure of its maintenance, and also of its timber supply, by giving its keeper control of the nearby settlements, along with their woodlands, regardless of who held them or what rights their owners claimed in them. Stoneleigh Abbey was a Cistercian house re-founded on royal demesne in 1155 by Henry II, who had granted its monks privileges which included `all their easements in my forest and woods and coverts, and wood and material for all their needs and to build their houses and for their fire, without waste and by view of my forester ...’.34 On 12 May 1204 King John gave them the same franchise in identical words, in a charter whose witnesses included William de Cantilupe.35 Perhaps the expression `without waste’ was stretched to prevent the monks from taking any wood at all, effectively reserving it entirely for the use of the castle  In 1221 the justices put the case aside for later judgment, and its outcome is not recorded, but the case certainly appears to show that royal officials in need of timber had felt free to ignore the explicit terms of royal charters in order to be sure of obtaining it.  

This possibility doubtless accounts for the appearance in a few grants of exemptions from such seizures. Unfortunately the relevant waters have been seriously muddied by tamperings and forgeries. Thus one of Henry II, ostensibly of 1177, which refounded Waltham Priory in Essex as a house of Austin canons, and contained a clause not only exempting its beneficiaries from works on castles and bridges, but also ordering that `their woods are in no way to be taken for the aforesaid works, or for any other ...’, shows clear signs, including this clause, of having been doctored.36 A charter for the priory of St Osyth at Chich, also in Essex, drawn up around the same time and containing the same exemption, is similarly suspect.37 Such alterations were themselves a sign of the times, however. Copies of the Waltham charter, with all its dubious components, were made in the first decade of the thirteenth century, raising the possibility that they, along with the charter attributed to King Henry, were made after the example of more authentic charters which had been issued in the meantime. The authenticity of further charters given to Waltham and St Osyth’s by Richard I, also containing the exemption clause for their woods,38 may be as untrustworthy as those ostensibly granted by Henry II. But a charter containing that clause which Richard gave to Peterborough Abbey on 5 December 1189, and re-issued on 15 September 1198,39 does appear to be genuine, and the same conclusion seems warranted for the same king’s charter for Sempringham Priory of 11 November 1198, in which the exemption clause is rather clumsily placed, as if it was a last-minute addition – Richard’s first confirmation charters for Sempringham, dated 13 September 1189, contained no clause ordering that the monastery’s woods be spared.40

All these documents, whether genuine or spurious, suggest that in the last years of the twelfth century the crown was exerting growing pressure on private woodlands as a way of providing for works on royal castles. The existence of Malcolm IV’s charter (which was confirmed in identical terms by his successor),41 and the abbot of Stoneleigh’s later complaint, make it unlikely that Henry II and Richard I had claimed a new right for themselves, but they could well have revived an old one, or enforced it with unprecedented rigour. Perhaps a demand for wood constituted part of Henry II’s reaction to the revolt of 1173/4. His main castle-building campaigns took place before 1173, but important works were nonetheless carried out on a number of castles in the years which followed, in a few cases, notably Dover and Nottingham, on a very considerable scale.42 It was only in the years 1177, 1185 and 1187 that Henry enjoyed revenues in England comparable to those of his grandfather as they were recorded in 1130, raising the possibility that his successful pursuit of his subjects’ cash was matched by heavy demands upon their trees, justified in each case by the recent rebellion as well as by his present needs. Moreover it may not be irrelevant, either to the king’s revenue or to the fate of woodlands, that the forest laws were administered with increasing stringency from 1175 onwards,43 also, it would seem, in response to, or even as revenge for, armed resistance to his rule. But whatever the king’s motivation, his subjects clearly perceived his demands for wood as effectively new, and thus as needing responses in the form of new exemptions.

 

The policy of King John

King John, too, issued a very small number of charters whose beneficiaries were exempted from the seizure of their woods for royal works. In the early months of his reign the Knights Templar and Hospitaller were both favoured in this way, as were the Gilbertines and, on 29 May 1200, the canons of Waltham.44 Later in his reign his own foundation of Beauliey Abbey received the same exemption, in a charter issued on 25 January 1205,45 while Hubert Walter’s grant of the manor of Wolverhampton to the Cistercians would have done so had the king’s confirmation of it not been cancelled following the archbishop’s death later that year.46 But the rarity of such grants suggests that the king’s right to take wood, implicit in such grants, however recently it may have been instituted or revived, was usually seen as too valuable to be easily dispensed with – its potential usefulness can be seen in orders like one directed to the sheriff of Staffordshire on 14 February 1205, that he should take `cause to be taken from nearby woods outside our forest for the repair of Newcastle-under-Lyme’.47 He was to do so by the view of `lawful men’, and was presumably expected to account for his expenditure, though the king’s order did not say so; but whether his outlay was included in the £54. 6s. 9d. recorded as having been spent on works there in this year,48 or whether the men whose wood was taken received any part of it, there is no way of telling. As with purveyance, the rules governing repayment and compensation for works of this kind may have been honoured more in the breach than the observance.

Other kinds of exemption continued to be granted, in terms sometimes demonstrating the closeness of the practice forbidden by Clause 31 to ones licensed by forest law. On 21 April 1200, for instance, John Lestrange proffered twenty marks (£13. 6s. 8d.) to have his wood at Cheswardine `outside the regard and that it may not be afforested and that no-one may take anything from it except by his licence ...’ (he cleared his debt three years later).49 More immediately relevant, though, was the proffer by William de Gisnei in 1205 of two palfreys (to be handed over in that form, though the debt was also calculated as amounting to ten marks in cash) `that nothing may be taken from his wood or park for the repair of Norwich Castle’. The king’s order to the sheriff of Norfolk, which was sent after the first horse had been handed over, instructed him to make no further demand on Gisnei’s land, and referred to his having sent an earlier command for the taking of the wood, and to William’s having paid `for having peace’ both for his wood and also `for carriage’ – a clear pointer to the closeness of Clauses 30 and 31.50 Gisnei’s principal estate lay at Haveringland, north-west of Norwich, and he also held manors at Whitwell, Dilham and Panxworth, none of them far from the city.51 There were significant works on Norwich Castle at this time,52 in a county which contained no royal forest at all, and it is easy to see why the king should have been anxious to exploit the woods of others. Thomas FitzSimon’s proffer of 40s. (later changed to two sparrow-hawks), which was made in the same year, `that he may have his wood in Holt and Cley [next the Sea] in peace’,53 doubtless originated in identical circumstances, though unlike William de Gisnei, who cleared his debt in 1208,54 Thomas, whose property lay in the north of the county, a considerable distance from Norwich, seems not to have paid what he owed to the king.55

 

Pressure and resistance

Other resources were also exploited for works on castles. In 1208 the bailiffs in charge of the diocese of Exeter, vacant since the death of Bishop Henry Marshal two years earlier, were instructed have the wood for 100 rafters and forty joists taken from the bishopric’s woods `for the repair of our castle of Exeter’ (significantly, the men of the bishopric’s manors were to provide the carriage).56 And the king also made use of his own forests, as when in 1213 he ordered that timber from Aconbury wood, part of the royal forest of Haywood, be used to strengthen Hereford Castle and provide it with hoardings.57 In the latter case he directed that there should be no waste or destruction of woods, and he showed a similar concern for the protection of his own property in an order of 21 April 1215 for the supplying of Fotheringhay Castle with firewood and timber for hoardings, for these, too, were to be taken with the minimum damage (ad minus nocumentum) of the forest (Rockingham in this case).58 On 2 April 1215 John ordered the men of Colchester, which also lay within the king’s forest, to take timber `in the wood nearest to your town to enclose it’, and two weeks later ordered Hugh de Neville, the chief forester, to allow the townsmen to take wood in his bailiwick for the defences of both town and castle.59 The woods of Colchester abbey were clearly targeted as a result of these orders, for on 30 April, presumably after a protest, John instructed the castle’s constable `to take nothing from the wood of the abbot of Colchester except with his licence’.60

The concession to the abbot, and the terms in which it was made, may show that John was becoming aware of the resentment which his seizures of wood had aroused and which Clause 31 was intended to prevent. If so, the threat, and then the outbreak of civil war saw a reversion to earlier practice, and now at the expense of his enemies, whose woods could, indeed, be seized as a consequence of their owners’ forfeiture. Hence, perhaps, the sale in the first half of the financial year 1214/15 of wood worth £13. 6s. 8d. belonging to Peter Malesoure, the lord of the manor of Lamport and other estates in Northamptonshire and subsequently a rebel,61 and, more certainly, the order of March 1216 that the wood of an East Anglian rebel, John de Boville, should be taken in order to strengthen the royalist earl of Arundel’s stronghold at Castle Rising.62 In the following month the woods of another rebel, Roger Bigod, earl of Norfolk, came under attack, when the king ordered that they should be exploited `wholeheartedly’ (viriliter) on his behalf, apparently to help pay the wages of the garrison which he had installed in Framlingham Castle after capturing it from the earl.63 In these last two cases, at least, the taking of wood was intended to serve a military purpose, and the same was true, in a rather different way, of the attack made upon Robert de Bekele’s property – in late April order was given that the felling of his woods and the demolition of his houses should cease, now that Robert had surrendered to the king’s allegiance.64 But as the civil war continued, and John lost the military initiative, his policy where woodlands were concerned became overtly and crudely destructive, to serve no other purpose, apparently, than to satisfy his desire for revenge upon his adversaries. On 2 October 1216 he gave orders that the knights whom the sheriff of Northamptonshire had assigned forfeited land in the royal forest were not sell anything from the woods where the king had his own hunting grounds, but that they should be allowed to do whatever they wanted on lands adjoining those of Earl David [of Huntingdon] `and others our enemies ... so that traces of their deeds may appear for ever’ (ita quod vestigie factorum suorum perpetuo appareant).65

Although the evidence is only occasionally directly relevant to Clause 31, there is enough to make it clear that King John made determined efforts to enforce every claim which either traditional usage or temporary circumstances enabled him to make on the woods of his subjects, in order to meet his own military needs. It is likely that the pressure thus exerted intensified, as it did in other areas of governance, in the later years of his reign, and especially once the danger of civil war became apparent and his many castles had to be made ready for action, while it seems to have reached new heights of aggression once war finally broke out. As far as John’s victims were concerned, his actions in 1215-16 can only have confirmed them in their determination to protect their woods against royal exploitation, all the more so because their resistance could also be expected, like several other clauses in the Charter, to have the further advantage of weakening the military resources of the crown. Clause 31 was therefore carried over, without significant change, into all the subsequent re-issues of Magna Carta.

1

I have followed the definitions in R.E. Latham et al. (eds.), Dictionary of medieval Latin from British sources (1975-2013).

2

PR 3 John (1201), 284.

3

J.C. Holt, Magna Carta and medieval government (1985), 253. Other French translations, for example British Library MSS Additional 32085, fol. 103v, and 38821, fol. 87v, were made later – I owe these references to Paul Brand.

4

N.J.G. Pounds, The medieval castle in England and Wales: a social and political history (Cambridge, 1990), 126-7, 199-200.

5

R.A. Brown, H.M. Colvin, A.J. Taylor, The history of the king’s works ii: the middle ages (1963), 889.

6

TNA, C 47/11/1 m.1. J.C. Holt, The northerners: a study in the reign of King John (Oxford, 1961), 161, describes Richard as having taken 250 trees, but this figure includes fifty recorded as taken on other occasions.

7

PR 8 John (1206), 78.

8

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 198.

9

PR 19 Henry II (1173), 30

10

PR 23 Henry II (1177), 81-2; PR 24 Henry II (1178), 73.

11

PR 25 Henry II (1179), 120; PR 28 Henry II (1182), 152.

12

PR 2 John (1200), 88-9.

13

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 185.

14

PR 2 John (1200), 134-5; PR 3 John (1201), 142.

15

PR 12 John (1210), 96.

16

PR 14 John (1212), 141.

17

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835), 75.

18

Ib., 76.

19

PR 14 John (1212), 40.

20

Rot.Lit.Claus. i, 127.

21

Ib., 217.

22

E. Amt and S.D. Church (eds. and trans.), Dialogus de Scaccario (Oxford, 2007), 92-3.

23

W. Stubbs (ed.), Chronica Magistri Rogeri de Houedene, 4 vols. (Rolls Series, 1868-71), iv, 63-4.

24

C. Johnson and H.A.Cronne (eds.), Regesta regum Anglo-Normannorum 1066-1154 ii: Regesta Henrici Primi, 1100-1135 (Oxford, 1956), no. 1818 (p. 273).

25

J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 428.

26

G.J. Turner (ed.), Select pleas of the forest, Selden Society 13 (1899), lxxxiii-iv.

27

PR 10 John (1208), 191. Walter’s disseisin may have resulted from his having been charged with homicide in 1203 – PR 5 John (1203), 57-8.

28

Canterbury Cathedral Archives, Dean and Chapter Cartae Antiquae, C 1226 – transcript supplied by Nicholas Vincent

29

L. Landon (ed.), The Cartae Antiquae rolls 1-10, Pipe Rolls Society new series 17 (1939), no. 184 (p. 92).

30

G.W.S. Barrow, The Anglo-Norman era in Scottish history (Oxford, 1980), 169-70.

31

Apart from Malcolm’s charter, the earliest record of Berwick Castle, dated to his reign, occurs in J. Raine (ed.), Reginaldi monachi Dunelmensis libellus de admirandis beati Cuthberti, Surtees Society 1 (1835), 41-4 (an account of how a prisoner there was freed by St Cuthbert).

32

D.M. Stenton (ed.), Rolls of the justices in eyre ... for Gloucestershire, Warwickshire and Staffordshire, 1221, 1222, Selden Society 59 (1940), no. 501 (pp. 213-14).

33

R.A. Brown, `A note on Kenilworth Castle: the change to royal ownership’, Archaeological Journal 110 (1953), 120-4.

34

R.H. Hilton (ed.), The Stoneleigh Leger Book, Dugdale Society 24 (1960), 15-16.

35

Ib., 22-3.

36

Printed J.C. Davies (ed.), The Cartae Antiquae rolls 11-20, Pipe Roll Society new series 33 (1960 for 1957), no. 357 (pp. 38-41). A re-edited text, with commentary, will appear in N. Vincent (ed.), The letters and charters of Henry II, king of England (1154-1189) (Oxford, forthcoming), nos. 2765-6.

37

Calendar of Charter Rolls, 1257-1300, 332-4. Also Vincent (ed.), Letters and charters of Henry II, no. 2375.

38

Davies, The Cartae Antiquae rolls 11-20, no. 360 (pp. 44-8 – Waltham); Landon, The Cartae Antiquae rolls 1-10, no. 172 (pp. 85-7 – St Osyth’s). Re-edited texts of these charters, with commentary, are presently numbered 2640R (St Osyth’s) and 3134R (Waltham) in the collection of Richard I’s charters which Nicholas Vincent is preparing for publication.

39

TNA, C 52/28 m. 3, no. 17, and Calendar of Charter Rolls, 1327-1341, 274-8 (charter of 1189); TNA, C 52/29 m. 1, no. 4 (confirrnation of 1198) – no. 2706R in Nicholas Vincent’s collection of Richard I’s charters.

40

British Library, MS Cotton Claudius D. xi, fols. 30v-31r – nos. 2021R and 3220R in Nicholas Vincent’s collection of Richard I’s charters.

41

G.W.S. Barrow (ed.), Regesta regum Scottorum ii: the acts of William I (Edinburgh, 1971), no. 46 (pp. 152-3).

42

Details from History of the king’s works ii, 553-894.

43

C.R. Young, The royal forests of medieval England (Leicester, 1979), 23-5.

44

T.D. Hardy, Rotuli Chartarum, 1199-1216 (Record Commission, 1837), 1-2, 15, 18, 65-6.

45

Landon, Cartae Antiquae rolls 1-10, no. 222 (pp. 109-111).

46

Rotuli Chartarum, 154.

47

Rot.Lit.Claus. i, 20.

48

PR 7 John (1205), 156.

49

Rot.Ob.Fin., 59; PR 5 John (1203), 67.

50

Rot.Ob.Fin., 242; Rot.Lit.Claus. i, 54; PR 7 John (1205), 235.

51

F. Blomefield and C. Parkin, An essay towards a topographical history of Norfolk, 11 vols. (1805-10), viii, 227, 292; xi, 30.

52

History of the king’s works ii, 754.

53

Rot.Ob.Fin., 243; Rot.Lit.Claus. i, 19; PR 7 John (1205), 235.

54

PR 10 John (1208), 7.

55

Thomas was recorded as owing the birds in 1209, but as owing three marks in 1210, after which the debt ceased to be entered on the pipe rolls in any form, without any indication that it had been paid – PR 11 John (1209), 44, PR 12 John (1210), 47.

56

Rot.Lit.Claus. i, 109.

57

Ib., 133-4.

58

Ib., 196.

59

Ib., 193, 195.

60

Ib., 198.

61

PR 17 John (1215), 55; Peter’s return to the king’s allegiance in 1217 is recorded Rot.Lit.Claus. i, 329.

62

Ib., 255.

63

Ib., 258.

64

Ib., 266. This entry is problematic. The index suggests that Robert should be identified with Robert of Berkeley, but there is no evidence that Robert, though certainly a rebel, came into the king’s allegiance at this time, or even considered doing so. The order was addressed to Philip the clerk, his colleague Matthew, and the other bailiffs of Furnell’, but neither of the named men seems to be recorded elsewhere, and Furnell’, which appears in that form in TNA, C 54/13 m. 2 but as Furmer’ in the published text (presumably taken from C 54/12, which was not available for inspection), is no less mysterious. It could represent Furness in Lancashire, but the abbey was not vacant in 1216 and there is no evidence that either it or its region was in the king’s hands. Alternatively it could be a form of the family name conventionally rendered as Furneaux, but again there is no evidence that its members were enemies of King John. As a result it is impossible to say whose woods had been subjected to depredation, or where they were.

65

Rot.Lit.Claus. i, 290.

Referenced in

Clause 30 (The 1215 Magna Carta)

Clause 30 (The 1215 Magna Carta)


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Original Latin

XXXII

Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi per unum annum et unum diem, et tunc reddantur terrae dominis feodorum.

32

We will hold the lands of those convicted of felony for only a year and a day, and then the lands are to be surrendered to the lords of the fees.

Audio commentary

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Commentary for academic researchers

Clause 32 made no significant changes from No. 22 among the Articles of the Barons. An impersonal statement of what the king was not to do became a personal undertaking to the same effect, using the royal `we’, and both `lord’ and `land’, singular in the Article, became plural in the Clause, but the essential content remained the same. The Clause had little in common with those on either side of it. It came after a group of four clauses principally concerned with abuses linked to castles, and preceded one designed to keep the Thames and other English rivers clear of fish-traps, but whereas Clause 33 was included primarily to protect the interests of London, Clause 32 was intended to safeguard those of lords in the lands of their free tenants if these fell into the king’s hand because their holders had been convicted of felony.

 

The laws of forfeiture

Forfeitures of land for the serious offences against the king and his peace which came to be defined as treason and felony can be traced back at least to the reign of King Alfred, when, however, a distinction was made according to the nature of the offence and the identity of the original grantor of the property concerned.1 The law-codes show that in pre-Conquest England land granted by the king, known as `bookland’, reverted to him, while other property reverted to the offender’s lord. But anyone who conspired against the king became `liable to forfeit his life and all that he owns’.2 The Leges Henrici Primi show that the distinction between `bookland’ and other forms of tenure was still observed in the early twelfth century,3 and this is confirmed by a case recorded in the Abingdon Abbey chronicle, telling how in 1112/13 one Ralph, the son of Walter the ditcher, committed theft (furti crimen) and therefore lost a hide of land at Dumbleton, Gloucestershire, but having obtained a pardon from Henry I, he came to terms with the abbot of Abingdon, to whom the property had reverted, and received a horse, money and wheat in return for it.4 Despite his seemingly rustic parentage, Ralph was apparently a man of status and means, for whom a horse was a serviceable gift, and with access to the king and queen, as well as to the abbot. But although his offence had been such that he needed a royal pardon before he could live safely in England, the king’s interest thereafter did not extend as far as Ralph’s land, which passed to his lord.

Changes in the claims the king could make on the lands of free men and women who committed felonies came about in the reign of Henry II, but the pace of change may have been uneven, resulting in differences between the accounts given by the two principal manuals of government, both dating from the later years of the reign. According to the Dialogus de Scaccario, tenants-in-chief convicted of crime (scelus – the term `felony’ was not used) forfeited everything to the king, lands and chattels alike. As for humbler criminals (scelerati), their goods went to the king, but their `immoveable possessions’ became their lords’.5 The distinction where lands were concerned was thus effectively that made in earlier periods, but the legal treatise Glanvill, which was probably written a few years after the Dialogus, added a significant refinement to it (as well as defining as `felony’ the offences which entailed such penalties). The chattels of sub-tenants went to the king, their lands to their lords, but only after a full year, during which the issues became the king’s, while at the end of that time the king was also entitled to devastate the property in order to remove everything of the least value on it – he could `pull down houses and root up trees’.6 The aim of this procedure was probably to make the king’s right to a felon’s chattels as extensive as possible, but inevitably it compromised, if only temporarily, the rights of lords in lands to which they had previously expected an undisputed reversion, one which, Glanvill continued, they still enjoyed when their tenants were convicted of theft, then still an offence falling under the jurisdiction of the sheriff.

Neither the Dialogus and Glanvill gave much space to treason, described by them as lèse-majesté, but their coverage shows that for both treatises the penalties included total forfeiture – in Glanvill’s words, `all his goods and chattels shall be confiscated and his heirs disinherited for ever’.7 It seems likely that Henry II’s attempts to curb lawlessness had entailed the strengthening, or revival, of an ancient link between felony and treason, whereby the former was approximated to the latter by the argument that the felon who broke the king’s peace had in the process also broken his oath, taken when he became a member of a tithing, to observe and uphold it, and so became a traitor, deserving as such of the heaviest penalties.8 The Assize of Northampton of 1176 not only revised the peace-keeping measures contained in the Assize of Clarendon ten years earlier, but added to it the requirement that his justices should take oaths of fealty `from all, namely from earls, barons, knights and free tenants, and also villeins (rusticis), who wish to remain in the kingdom’, and added that anyone who refused to take the oath `should be arrested as the king’s enemy’.9

It seems unlikely that those who did take the oath and subsequently broke it were seen in a different and less hostile light. That felony might indeed be associated with treason against the king, and therefore potentially liable upon conviction to entail forfeiture of lands as well as of chattels, is suggested by an action heard in the bench in Trinity term 1200, in which Robert son of Berta, defending his right in lands at Creeksea, Essex, argued that he should not have to answer the plaintiff, Jordan son of Avice, `whose father was wicked (nequam) and lost a foot and an arm under the assize of Clarendon, and he was born of a wicked body ...’.10 Jordan had claimed the property as the heir of his mother. Robert’s argument treated this normally important detail as irrelevant, asserting instead that as the son of a convicted felon Jordan was so tainted in blood that he could not under any circumstances lay claim to another man’s free tenement. His contention was resisted by his opponent and could not be sustained, and proceedings ended in a settlement which partitioned the disputed land between the parties.11 But the argument was nevertheless significant, for if a plaintiff who was himself a man of no particular standing could reason in this way, in an action over only a modest amount of land, it seems unlikely that the crown’s agents never made similar claims.

The implications of Robert’s argument were thus potentially serious for lords, and give weight to F.W. Maitland’s perception, in his analysis of the treatment of felons’ lands, that the issue gave rise to a conflict between king and barons which was finally resolved by a compromise.12 The rule that gave those lands back to the lords after a year and a day in the king’s hands, ravaged of everything on them, probably formed an important part of that compromise, one to which Clause 32 itself bore witness, in that it concerned itself only with felony and made no mention of treason. The barons would probably not have denied that a traitor’s lands should be forfeit to the king, but they were seemingly unconcerned with a possibility that rarely arose. The criminality which was all too often inherent in homicide, robbery and acts of violence was a different matter, and they wanted to safeguard their rights against its consequences for their own rights.

 

Establishing protocols

Establishing that rule was one thing, inducing the king to observe it quite another. The temptation for the crown and its agents to hold on to land that should have been only temporarily forfeited was probably always strong, as can be deduced from a well-known case from the 1180s recorded by Roger of Howden.13 Gilbert of Plumpton, a younger son of a landowning family of Percy tenants in Yorkshire,14 fell foul of the justiciar Ranulf de Glanville in 1184 by abducting and marrying Maud, the daughter of Roger de Guillevast, an important tenant of the honour of Richmond.15 Glanville, who was also sheriff of Yorkshire, had intended Maud, and her inheritance, for his under-sheriff Reiner, and to bring about their marriage arranged for Gilbert to be charged with theft and robbery, committed in the course of Maud’s abduction. Removed to Worcester for trial in the curia regis, Gilbert was convicted and sentenced to be hanged, only to be saved at the last minute by the intervention of Bishop Baldwin of Worcester, who had the execution deferred on the grounds that it was wrong to hang a man on what was both a Sunday and the feast of St Mary Magdalene (22 July). Henry II was then persuaded to grant a reprieve to Gilbert, who nonetheless remained in prison for the rest of the reign, and seems to have been treated as a convicted felon, since he forfeited both lands and chattels. In the years 1184-5 the sheriff of Yorkshire accounted for a total of 58s. 8d. from lands and for £19. 19s. 9d. from the sale of chattels (as a younger son of what Howden called a `noble’ family, Gilbert could have expected to be richer in movable than immovable property), while in 1186 a further 30s. were paid in from the sale of chattels and houses (de domibus suis venditis), the latter doubtless constituting the proceeds of a year’s waste.16 The lands of Gilbert’s wife, moreover, appear to have been treated as though they were her husband’s, for in 1190, following the succession of Richard I, Nigel of Plumpton paid 100 marks `for the release of Gilbert his brother and for his having his wife back with her land.’17 Gilbert thus lost his own estates (which were also stripped bare) and those of his wife for between five and six years, even though neither he nor Maud’s father were tenants-in-chief, so that these properties should have reverted to the mesne lords of whom they were held.

It is possible to see in the treatment of Gilbert of Plumpton signs both of the elision of felony and treason suggested by the Assize of Northampton, and of the compromise over felons’ lands, represented by their being wasted, which arose from that elision and was recorded by Glanvill. It is probably immaterial that waste was neither referred to by Clause 32 nor accounted for as such in exchequer records – it seems likely that it was automatically included among the issues of felons’ lands, as indeed, is suggested by the comprehensive order sent to the sheriff of Oxfordshire in 1207, that `he seize into the king’s hand all the lands, tenements and chattels of Jordan of Bilney, who was hanged for the death of Richard of Alderford, of which he was convicted, and sell all his chattels and answer for them, together with the issues of those lands, at the king’s exchequer.’18 It is noteworthy, however, that Jordan’s lands and chattels had apparently not been taken into the king’s hands before his execution, since evidence from other cases shows that it became standard practice for them to be seized at the moment of a suspect’s arrest, to make sure of their possession and also, no doubt, to provide for their owner’s maintenance while he was in prison. In 1205 William de Duin, a Hampshire landowner, proffered thirty marks and two palfreys, `for having his inheritance of which he was disseised’ for a homicide `with which he was charged and not outlawed ...’19 – in this and similar cases it was the accusation, not the conviction, which initially led to the sequestration of lands and chattels, which could thus have been in the king’s hands for months, if not years, before (if their owner was convicted) they were finally declared forfeit.

Glanvill is silent on this point, but although evidence from the reigns of Henry II and Richard I is almost entirely lacking, it seems probable that where the lands of convicted, as opposed to suspected, felons were concerned, the procedure laid down in that treatise had become generally accepted by the end of the twelfth century, and perhaps a good deal earlier. The detail supplied by Howden suggests that the case of Gilbert of Plumpton was in every respect irregular; it shows what could happen to a man who fell foul of a powerful royal servant, but there is no reason to believe that Gilbert’s difficulties were typical. For the king, and especially for one like King John, this development was probably an unwelcome one. He stood in constant need of lands which he could give away in order to win, retain or reward service, one which was conventionally met from such sources as escheats and wardships, less conventionally through the arbitrary dispossessions of estates – disseisins – whereby the Angevin kings disciplined and punished their free subjects. The loss of Normandy in 1204 put a great many properties at King John’s disposal, through the forfeitures of men who retained their cross-Channel lands by giving their loyalty to Philip Augustus, but consequently lost their English ones because they were now seen as his enemies by King John. (Such confiscations, and the grants of land made from them, were usually recorded as being only temporary, and could have been reversed had John recovered his lost duchy – needless to say, this did not happen.)20 The men dispossessed were, in effect, traitors, and their being treated as such seems to have been regarded as entirely justified. Confiscations from convicted felons were equally legitimate, and could have been similarly useful, either in replenishing the king’s store of patronage, or simply as sources of revenue. But despite such windfalls the demand was always greater than the supply.

 

Circumventing the rules

Where a felon was the tenant of a mesne lord, his estates (when freely held – it was by no means rare for free men to hold lands by villein tenure as well) were not, after the initial year and day, at the disposal of the king. But John, at least, found other ways of exploiting them (the inadequacies of the sources make it impossible to say if any of his predecessors acted in this way). Late in 1204 one William of Stroby, a Lincolnshire landowner (in 1202 he secured two and a half bovates in Stroby itself)21 was outlawed for forging the king’s seal – an act of treason which should have put his lands at the king’s disposal. But the issue of ownership was not seen as clear-cut, for Adam of Essex, a royal clerk, proffered two palfreys (he later added a third) both to have all William’s lands `from the fees of the lord king and of others’, and also `so that the lord king may act towards the lords [efficiat erga dominos] of whom William held, that they may give Adam what William held from their fees and take homage for it and make him their charters for it ...’.22

King John responded in two stages, firstly by ordering the sheriff of Lincolnshire on 11 September 1204 to hand over William’s lands to Adam, complete with all his chattels and stock, and then on 28 November by notifying the sheriff formally of the grant of the lands as `our escheat for the felony he did in forging our seal ...’23 – the interval is probably to be explained by William’s attempting to come to come to terms with the king, for which he was granted a safe conduct on 13 October,24 but which did not in the end prevent his being outlawed. But despite the nature of the offence, John did not press his own claim on William’s lands, for he did as Adam requested. In a charter issued on 17 March 1205 he recorded that `William of Stroby, on account of the felony which he committed concerning our seal which he falsified, because of which felony he fled and was outlawed in Lincoln county court, lost and forfeited according to the custom of our kingdom all his lands, tenements and fees and all the rights which he had in everything without any recovery for himself or his heirs ...’.But despite this sweeping assertion of forfeiture, John went on to record how William de Grenesby and Richard of Sutton came into his court and there granted all the property which William of Stroby had held from them to Adam of Essex and took his homage for it.25

Another case, from a little earlier in his reign, similarly shows John arranging for a grant by himself to be confirmed by a mesne lord. In Easter term 1198 Alice of Whatley appealed Malger of Milbourne of killing her husband Robert, a Somerset landowner. Alice’s account of the crime was received with scepticism from the start, and she quickly fell under suspicion herself.26 Later in 1198 she was arrested and taken to Westminster,27 and though her case was slow to come to trial, early in 1201 she was brought before King John at Louth in Lincolnshire, as he made his way northwards, where she was convicted of her husband’s death and sentenced to be burnt – the usual penalty for a woman convicted of petty treason. Robert of Whatley was a tenant-in-chief, and in 1199 the wardship of his heir and lands, which were centred upon Milborne and Stowell, was granted to Walter FitzGodfrey for fifty marks (the money was paid a year later, but the wardship later came into the hands of the king’s steward, Peter of Stoke).28 Alice, however, was an heiress who held lands independently of her husband, and these, despite their having been held of a mesne lord, William FitzJohn of Harptree, were treated as having escheated to the crown, even though petty treason does not appear to have entailed the all-embracing forfeitures incurred by treason against the king.29

However, John disposed of Alice’s lands almost immediately, by granting them to Simon FitzRobert, also known as Simon of Wells, a royal clerk who had risen in the service of Hubert Walter and later became bishop of Chichester. It has been suggested that he was Robert’s son,30 but there is no good evidence that he was a kinsman of either Robert or Alice, and his acquisition of the latter’s estate appears to have made for purely material reasons – he proffered twenty marks and a palfrey for the land and everything on it, that sum being specifically calculated to include the value of the king’s waste.31 John accepted the proffer, which was quickly paid, but he did not make the necessary grant himself, for on 7 February 1201 he issued a charter at Durham setting out how, following Alice’s conviction and execution, William FitzJohn had come into his court at Pickering in the North Riding of Yorkshire, and gave Simon everything in his fee at Stowell, including the advowson of the church, as land which had escheated to him through Alice’s felony, and took his homage for it. John’s role in this transaction was limited to confirming it.32 But once Simon had received the land, he seems to have been expected to part with some of it, albeit in exchange, for on 22 February, by when the king was at Carlisle, he granted Simon an estate in the manor of Milborne called `Burgelay’, which had been held jointly by Robert and Alice of Whatley, in return for a virgate from Alice’s inheritance.33

In both these cases John received modest payments, but the ultimate beneficiaries were royal servants. Although the king did not deny the underlying rights of the mesne lords concerned, it seems certain that they were pressurized into going along with his proposals – it is difficult to see why William FitzJohn should have been with the court at Pickering, unless it was to dispose of Alice of Whatley’s property, while Adam of Essex in effect paid the king to apply constraints. But the extent to which John played a controlling part in such transactions is most fully brought out by the aftermath to the case of William of Stroby’s estate. In 1218 William’s widow Maud brought an action of dower against one Richard of Chacombe, who was earlier recorded as holding a third of a fee in Stroby as an `escheat by felony’34 – no doubt the property which Maud now claimed, presumably conveyed to Richard by Adam of Essex some time after 1205. The case was remanded to the Lincolnshire eyre which opened in November that year, where Maud renewed her action, claiming that her husband had been outlawed `unjustly and by the lord king’s will’. But the justices found that her opponent had `produced the charter of the lord king John touching William’s outlawry, which was not, nor could it be, denied, and Maud has not denied the outlawry, whether it was just or unjust, and has said nothing else ...’, and so her action was dismissed.35 The charter in question must have been that of 17 March 1205 setting out how the mesne lords had given William of Stroby’s lands to Adam of Essex. But its most important constituent at this juncture was less their grant than the fact of William’s outlawry, of which the charter provided an irrefutable record, and of the forfeiture which resulted from it. It also (though this was not mentioned at the eyre) demonstrated how the king had then exploited that forfeiture by indirect means, for his own benefit and that of his servant.

 

Overt exploitation

Where a tenant-in-chief was the victim of forfeiture, John was ready to take the fullest possible advantage of the event. William de Martivas, the holder of a forest serjeanty at Writtle, Essex, was outlawed for an unidentified felony, probably in 1201.36 Two years later, on 30 June 1203, John granted the serjeanty and the carucate of land which supported it to Brian of Therfield, apparently a member of the royal household, since he was variously referred to as an usher (ostiarius) and a water-carrier (aquarius); for this he had proffered ten marks and two palfreys.37 But after a further two years William attempted a comeback, proffering 100 marks and a palfrey for a safe conduct to come to England `to speak with the king and for having his land of which he was disseised.’38 Letters patent were duly issued on 1 March, to remain valid until Pentecost (29 May),39 but when William arrived he was arrested (the bearer of a Norman toponymic, he may have tried to recover his possessions by implying that he had suffered forfeiture in 1204 and was now asking to be allowed to return to the king’s allegiance, only to be taken into custody as an outlawed felon; his subsequent fate is unknown). Meanwhile the size of William’s proffer seems to have suggested to John that Brian had given nowhere near enough for the serjeanty, with the result that he was now obliged to make a second, and much larger bid for it, one almost identical with William’s, of 100 marks.40 This he soon came under pressure to pay. His debt was entered on the 1206 pipe roll, and he probably paid the first £38. 13s. 4d. soon afterwards,41 for at Michaelmas 1207 successive notes were entered on the memoranda roll that he still owed £28, which he should have paid a year ago, that the matter should be discussed with the king, and finally that the land for which Brian had made fine was to be taken into the king’s hand, since he had not observed his terms.42 Unsurprisingly, by Michaelmas 1208 Brian had cleared his debt.43

It is unlikely that John was gentler with the forfeitures of others, when they fell into his hands. Direct evidence is lacking, but it is surely a pointer to the same conclusion, and also to a tendency on the part of the king’s agents to hold onto lands after the year and a day were up, that a royal order might be needed to secure the return of forfeited properties, and that mesne lords could also find it necessary to pay to recover the lands of tenants which had passed into the king’s hand when their holders were convicted of felony. Following the execution of Jordan of Bilney, John could freely grant away the land in Norwich `which he held of us’, but he had earlier instructed the sheriff of Norfolk to hand over to the earl of Clare `the land which was Jordan of Bilney’s in your bailiwick of the earls’ fee as we have rendered it to him ...’.44 No money is known to have changed hands in this case (which also points to potential conflicts of interest when the same man was both a tenant-in-chief and the tenant of a mesne lord), but others were less fortunate. The amounts varied. In 1200 (in a case which shows that John raised money by this means from the earliest years of his reign) William of Easton, probably in Somerset, paid only one mark `for having ten acres of land which were in the king’s hand because one of his men was outlawed and his land was in the king’s hand for a year, and if this is so let him have seisin.’45  But in 1204 Thomas de Aula, a landowner on the Isle of Wight, accounted for forty marks and a palfrey `for having the land of his fee in Briddlesford which escheated to him because of the felony of William of Briddlesford who held it of him and lost it by felony’,46 and proceeded to pay off his debt over the next five years.47 In August 1213 Earl William of Devon had to proffer only three palfreys, or £15, for the lands of Hugh de Saucey in Ingsdon and Shilstone in Devon, after `Hugh was hanged by judgment of the king’s court and [the land] was in the lord king’s hand for a whole year and one day ...’. But this relatively modest proffer may have been due to the land having meanwhile been in the hands of Roger de Reimes, another Devon landowner, who was to have any chattels he had installed on it and also recompense for his outlay there.48 As it was, the earl seems to have paid only about two thirds of his debt.49

Shortly afterwards, on 14 October 1213, Philip of Timberland, a Lincolnshire knight, proffered ten marks for the land in Bleasby which the outlaw Walter of Holton had held of him. In this case the sheriff was administering the property, and had raised 3s. 4d. from it before Philip paid to recover possession.50 Then, as later, the ruthless exploitation of confiscated property while it was in the king’s hand, culminating in its wasting, provided a strong inducement to lords to pay for its recovery before this process was completed, and this may have been a consideration behind the proffer made by Philip of Timberland. But in the case of Hugh de Saucey the king had had his year, day and waste before arrangements were made for the earl to have the lands back, and indeed, John made sure that this was so, telling the sheriff to hand the property over `if it shall appear to him that the land has been for so long in the king’s hand and [is] of the earl’s fee ...’.

There may even have come to be formal inquests held in such cases, to ensure that the king’s rights had been maintained, before those of a lord were upheld by the return of the property. Hence, perhaps, the inquest held in the bench in Hilary term 1201 as to `how the land of Somercotes [Lincolnshire], which three men held of the abbot and monks of Jervaulx, so it is said, came into the hand of the lord king.’ It found that the three men were brothers called Alan, Guy and William, of whom Alan and William were impleaded for their shares of the property, which amounted to 180 acres. A jury of knights for the grand assize was summoned, but when proceedings should have resumed before justices itinerant, the defendants did not appear, and so their lands were taken into the king’s hand because of their default. Meanwhile the third brother, Guy, had been appealed of theft, convicted and hanged, with the result that his land, too, was taken into the king’s hand, `and held now for almost a year and a half, together with the lands of his brothers, which were then found unoccupied (vacue) as they made off because of the hanging of Alan ...’.51 Consequently order was given that the lands should be returned to the abbot of Jervaulx, who is not recorded as having had to pay anything for their recovery, possibly because Guy’s lands, at least, had been withheld for nearly six months after they should have been returned to the abbot. But other mesne lords found it expedient, or were obliged, to make an extra payment in order to secure possession. In 1214 Geoffrey of Claypole proffered, and subsequently paid, 40s. to recover a toft in Grantham, forfeited by Richard FitzRobert who had been outlawed for homicide, `which messuage is of Geoffrey’s fee according to the inquest held on [the king’s] order.’52 Similarly on 26 July 1215 Alan FitzTurbern proffered 20s. to have seven acres of land in Easton, Lincolnshire, which had been held of him by William Bret, now outlawed for homicide – `as an inquest held into this and transmitted to the lord king attests ...’. Alan cleared his debt in 1221.53 In both these cases the inquests seem to have been held at the king’s command, but the landowners concerned had to pay to have their findings implemented.

Alan FitzTurbern had made his proffer a few weeks after the granting of Magna Carta should have made it unnecessary, but perhaps the clearest example of the kind of malpractice against which Clause 32 was directed comes from the earliest years of Henry III’s reign. It was presented at the 1221 Worcestershire eyre that Osbert of Quinton, who had been outlawed for killing Roger Culvert, possessed a hide of land worth 7s. 2d. per annum. That hide had been in the hands of two successive sheriffs for no fewer than five years, that is, from around the time of King John’s death in 1216, yielding total issues of 37s. 10d. (a sum which may have included the waste). Only at the eyre, which took place in two sessions in June and August 1221, was order given that the land be returned to Robert of Bockleton, `the lord of the fee’, and even then its issues were to be accounted for at the exchequer.54

Although the retention of Osbert’s estate may well have been at least partly due to the confusions – and opportunities for misconduct – of Henry III’s minority (neither of the sheriffs involved in this case was punished), there can be no doubt that it entailed injustice and loss for Robert of Bockleton, of a kind that Glanvill would have recognised as such, and which Clause 32 was intended to prevent. The Clause implies, though it cannot confirm, that the abuse involved in this case was one frequently perpetrated, while the surviving evidence also indicates that it was one which could affect, or threaten to affect, tenants-in-chief and mesne lords of every kind, small-scale landowners as well as magnates – anyone possessing lordship over free lands. All found it objectionable, whether because it placed obstacles in the way of their securing their lands, and forced those concerned to pay for their removal, or because it had the capacity to undermine rights of tenure, and consequently all had an interest in its prohibition.

1

P. Wormald, The making of English law: King Alfred to the twelfth century i: legislation and its limits (Blackwell, Oxford, 1999), 147-9, 306-7; id., Legal culture in the early medieval west: law as text, image and experience (1999), 253-87, 308.

2

D. Whitelock (ed.), English Historical Documents i: c. 500-1042 (2nd edn., 1979), 410, 456, 466. For bookland see J. Hudson, The Oxford history of the laws of England ii: 871-1216 (Oxford, 2012), 94.

3

L.J. Downer (ed. and trans.), Leges Henrici Primi (Oxford, 1972), 118-19

4

Hudson, Oxford history, 402-3.

5

E. Amt and S.D. Church (eds. and trans.), Dialogus de Scaccario (Oxford, 2007), 144-7.

6

G.D.G. Hall (ed. and trans.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 90-1.

7

Ib., 173; Dialogus de Scaccario, 168-9.

8

Wormald, Legal culture, 366-7.

9

W. Stubbs (ed.), Select charters and other illustrations of English constitutional history ... to the reign of Edward the first (9th edn., rev. H.W.C. Davis, Oxford, 1921), 180.

10

Curia Regis Rolls i, temp. Richard I-1201 (1922), 180-1.

11

Curia Regis Rolls iii, 5-7 John, 1203-1205 (1926), 209 (nothing was said in this occasion about Jordan’s father).

12

F. Pollock and F.W. Maitland, The history of English law before the time of Edward I, 2 vols. (Cambridge, 1898), ii, 501-2. See also Hudson, Oxford history, 742.

13

R.C. Van Caenegem (ed.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), ii, no. 553 (pp. 605-6 and notes).

14

C.T. Clay (ed.), Early Yorkshire charters xi: the Percy fee, Yorkshire Archaeological Society record series, extra series ix (1963), 266-7, 269 note 2.

15

C.T.Clay (ed.), Early Yorkshire charters v:ii: the honour of Richmond ii, Yorkshire Archaeological Society record series, extra series ii (1936), 321-2.

16

PR 30 Henry II (1184), 38; PR 31 Henry II (1185), 76; PR 32 Henry II (1186), 96.

17

PR 2 Richard I (1190), 66; PR 3-4 Richard I (1191-2), 67. It may be a sign of the thoroughness with which the wasting was carried out that no proceeds from Gilbert’s lands were recorded subsequently.

18

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 394.

19

Ib., 296. Other examples of lands being seized at the time of arrest include ib., 263, 317-18, 393.

20

For details see T.K. Moore, `The loss of Normandy and in the invention of Terre Normannorum, 1204’, English Historical Review 125 (2010), 1071-1109. I am also grateful to Paul Brand for comment on this point.

21

M.S. Walker (ed.), Feet of fines for the county of Lincoln for the reign of King John, 1199-1216, Pipe Roll Society new series 29 (1954 for 1953), no. 29 (p. 16).

22

Rot.Ob.Fin., 232, 256.

23

T.D. Hardy (ed.), Rotuli litterarum clausarum i: 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 8, 15.

24

T.D. Hardy (ed.), Rotuli litterarum patentium1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 46.

25

T.D. Hardy (ed.), Rotuli Chartarum 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 144.

26

Curia Regis Rolls vii, 15-16 John, 1213-1215 (1952), 338-9 (this volume also contains fragments from 1196-9).

27

PR 10 Richard I (1198), 216.

28

PR 1 John (1199), 237; PR 2 John (1200), 96; PR 6 John (1204), 139.

29

J.G. Bellamy, The law of treason in England in the later middle ages (Cambridge, 1979), 227.

30

Henry Mayr-Harting, `Wells, Simon of (d. 1207)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com.view/article/25571, accessed 11 May 2015].

31

Rot.Ob.Fin., 120-1; PR 3 John (1201), 32.

32

Rot.Chart., 86.

33

Ib., 88.

34

H. Hall (ed.), The red book of the exchequer, 3 vols. (Rolls Series, 1896), ii, 518.

35

D.M. Stenton (ed.), The rolls of the justices in eyre ... for Lincolnshire, 1218-9, and Worcestershire, 1221, Selden Society 53 (1934), no. 478 (pp. 222-3).

36

PR 3 John (1201), 59

37

Rot.Chart., 105-6.

38

Rot.Ob.Fin., 252, 278.

39

Rot.Lit.Pat., 50.

40

Rot.Ob.Fin., 332-3 (this entry also records the arrest of William de Martivas).

41

PR 8 John (1206), 237; PR 9 John (1207), 99.

42

R.A. Brown (ed.), The memoranda roll for the tenth year of the reign of King John, 1207-8, Pipe Roll Society new series 31 (1957), 54.

43

PR 10 John (1208), 34.

44

Rot.Lit.Claus. i, 90, 104.

45

PR 2 John (1200), 98.

46

PR 6 John (1204), 129.

47

PR 11 John (1209), 166 records the sheriff as now due to account for the residue of Thomas’s debt.

48

Rot.Ob.Fin., 486; Rot.Lit.Claus. i, 148, 155.

49

The earl owed £4. 10s. in 1214, and still owed this sum in 1222, after which it was included in an amalgamated debt owed by his heir.

50

Rot.Ob.Fin., 498; PR 16 John (1214), 150.

51

Curia Regis Rolls i, 374.

52

Rot.Ob.Fin., 545; PR 16 John (1214), 151; PR 4 Henry III (1220), 93.

53

Rot.Ob.Fin, 560; PR 5 Henry III (1221), 153.

54

Stenton, Rolls of the justices in eyre ... for Lincolnshire, 1218-9, and Worcestershire, 1221, no. 478 (pp. 222-3)


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Original Latin

XXXIII

Omnes kydelli de cetero deponantur penitus de Thamisia, et de Medewaye, et per totam Angliam, nisi per costeram maris.

33

All fish-weirs are in future to be entirely removed from the Thames and the Medway, and throughout the whole of England, except on the sea-coast.

Audio commentary

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Commentary for academic researchers

(a) The problem of the fish-weir

Clause 33 appears in the same context in Magna Carta as its equivalent clause, number 23, does among the Articles of the Barons.  In both it is preceded by stipulations about the property of convicted felons, and followed by the prohibition of the writ Precipe.  It differs from these, and from most of the other clauses in the Charter, however, in that it was seemingly not intended to rectify oppressive or extortionate behaviour on the part of the king or his officers – there is no suggestion in the Charter, or anywhere else, that John and his agents had been filling English rivers with obstructions.  Rather it demanded the exercise of the royal prerogative in ways advantageous to the king’s subjects, and in particular to the city of London, which was its principal (though not its sole) beneficiary.  Clause 13 of Magna Carta gave the capital a sweeping confirmation of its ancient liberties, but its citizens wanted specific concessions as well.  Probably earlier in 1215 they drew up a series of demands, apparently for presentment to the king (possibly it was intended to be laid before the barons as well), of which the first declared `Concerning the Thames, that it should be absolutely and wholly the city’s’.1  It seems highly likely that Clause 33 originated in this requirement, with its very generalised terms being both made more precise and given a wider application.

The word translated here as `fish-weir’, kidellus, was a Latinised form of the Old French quidel.2  First recorded in Normandy in 1180, among the issues of Caen,3 it defined a large V-shaped weir made of rows of upright poles, connected by transverse rods or beams, which were themselves interwoven with brushwood or withies.4  The poles were either sunk directly into the bed of the sea or river or set into low stone walls; the latter were often used for coastal weirs, which could be substantial structures.  The two lines of poles did not meet, but were separated by a gap which was filled by a net, or more often, a wickerwork basket.with a hole at one end.  Fish entering the weir would be guided by its walls into the centre and then into the basket; a collar of inward-facing sticks at the point of entry acted as a valve to prevent their swimming out again.  A weir could be laid out facing in either direction, but it was most commonly placed with its apex facing out to sea or downstream.  A coastal weir would capture fish which, having come close to the shore to feed in the shallows, then tried to swim back out to sea, while a riverine one, though it could be positioned with its mouth facing downstream, to catch salmon coming upriver to spawn, was more likely to face the other way, so as to ensnare eels and other fish as they moved towards the sea, either with the current or, in estuaries, with the outgoing tide.

(b) The interest of London

An assured supply of fish was essential in an age when religious observance could lead to devout laymen abstaining from meat for between a third and a half of the days in the year,5 and when meat was unaffordable for many men and women, whether they were devout or not.  The Thames, described as `so full of fish’ by William FitzStephen, who also eulogised the city’s cookshops in which fish both large and small could be bought,6 was a vital element in the provisioning of London – the fish referred to in regulations for the city’s fishmongers from later in the thirteenth century included mullets, whitings, sprats, mackerel, rays, congers, dories, turbot, dabs, whelks, porpoises, oysters, salmon, cod, haddock, herrings, eels, mussels and sturgeon,7 and though not all of these will have been caught in the Thames, comparisons with the records of later epochs suggest that many of them could have been.  The right to catch fish in the river may have been disputed, or at any rate uncertain.  An inquest probably held in the reign of Henry II found that in the time of King Stephen a `liberty of the River Thames’ had stretched from Staines to Baynard’s Castle, with its fishing being controlled by the latter’s lord.8  Below Baynard’s Castle, which stood at London’s south-west corner, the fishing was presumably already controlled by the city, whose governance extended as far downstream as a line from Crowstone, between Leigh-on-Sea and Southend-on-Sea on the north side of the estuary, to Yantlet Creek on the Isle of Grain.9  Only in 1237 was it extended as far upstream as Staines as well,10 but from the fact that Magna Carta made no reservation of the rights of the lord of Baynard’s Castle, even though in 1215 he was no less a man than the baronial leader Robert FitzWalter, suggests that either Robert was prepared to make a tacit surrender of this element in his lordship in order to retain London’s support, or that he was no less tacitly acknowledging that his rights in the Thames were effectively obsolete.

In the twelfth-century inquest into the liberty of the Thames fish were described as having being taken in the lordship of Baynard’s Castle by men using seine-nets, which had floats at the top and weights at the bottom, and were cast from the bank – a number of them were said to have been taken by force and burnt in the house of `the keeper of the waters’.  Although fish-weirs had long been known in England (impressive remains, dating from well before the Norman Conquest, have been excavated in the Blackwater estuary, off the Essex coast),11 it seems likely that in their earliest forms they were insufficiently robust for the tidal waters of the Thames estuary, which in the middle ages rose much higher, and ebbed and flowed much faster, than they do today.12  Judging by its relatively late appearance in the written record, the kidellus, though similar in design to its forerunners, was probably an innovation of the second half of the twelfth century, originating in northern France or the Low Countries and soon brought across the Channel to London.  It may not have been fortuitous that its arrival on the Thames seems to have coincided with that of the tidal mill, which also needed to be very strongly made to survive the buffetings of the river – one datable to 1194 which has been excavated at Greenwich was found to have been a huge timber structure resting on chalk cobbles and great squared oak piles, and like the kidellus may have been continental in origin or inspiration, since it stood on land owned by St Peter’s abbey in Ghent.13

The installation of large and strongly-built fish-weirs in the Thames no doubt made a useful contribution to keeping London supplied with food, but it quickly also created severe problems for the navigation of the river.  That these were at first seen primarily in a military context is suggested by the fact that the power to license fish-weirs was initially exercised by the constable of the Tower, who received a yearly payment for them.14  Substantial works were carried out at the Tower in 1190 and 1191,15 and it would have been important to keep the river clear so that supplies of stone (much Purbeck marble was used) and timber could be brought there safely.  But the weirs must have been no less of a hazard to trading vessels, and since London played an important role in providing supplies for Richard I’s campaigns in Normandy in the late 1190s, civic and royal interests could be seen to coincide, or at any rate presented as coinciding.  Accordingly on 14 July 1197 Richard granted the city a charter which ordered the removal of all the weirs in the Thames, and annulled the rights over them of the constable of the Tower,16 in the process describing the weirs as detrimental not only to the city but also to the whole realm.  The charter says nothing, however, to suggest who in the years on either side of 1200 was responsible for making and maintaining these forbidden devices, and other sources are equally silent.  It is possible that then, as later, London fishmongers were among the offenders, but evidence is lacking.17

Richard I’s charter seems to have had limited effect, for on 17 June 1199 King John granted the Londoners a further charter, again ordering the removal of all fish-weirs, and extending the prohibition to the Medway as well as the Thames; anyone who constructed a weir in either river in future would be liable to a £10 amercement.18  Probably the prohibition was seen as unlikely to be effective unless it was extended downstream, but it is also possible that Richard’s charter had caused some of those affected by it to move their weirs into Kentish waters, which may already have been as assiduously fished as they were to be in later centuries.19  But John’s charter, like its predecessor, clearly failed to keep the Thames clear for ships.  In 1237 the Londoners claimed that the people responsible for fish-weirs had been excommunicated, at an unrecorded date which can have been no later than 1205, by Archbishop Hubert Walter and all the bishops of England, and that this sentence had later been renewed by Archbishop Langton, again with the backing of the other bishops.20  If the claim was true, the deployment of spiritual sanctions underlines the seriousness with which the offence in question might be taken, even though they, too, proved ineffective in keeping the river clear; on the evidence of their subsequent demands, the Londoners came to believe that this could only be achieved if they had the control of the whole of the Thames.  The Charter did not make this sweeping concession, but repeated John’s prohibition, without a penalty clause, and extended it to all English rivers.

(c) Other rivers

Although that extension may have been no more than an acknowledgement of a recent proliferation of fish-weirs in English rivers, it seems likely that it was also specifically intended to benefit London, which had an interest in keeping the Thames free of obstructions for many miles upstream, and also in ensuring that its tributaries could flow unhampered into the main river.21  As the city and its population grew, so the hinterland upon which it drew for its food supplies grew also.  Charters licensing the owners of boats to carry goods free of tolls (from which the Londoners had been exempted since at least 1135) between London and Abingdon and between London and Oxford, issued in 1204 and 1205 respectively,22 illustrate the potential of a considerable length of the Thames for transporting merchandise at this time, just as a similar charter for the countess of Leicester in 1207, granting her the same exemption for her boats at Ware, on the River Lea – the principal tributary of the Thames, which it joins on the eastern side of the Isle of Dogs – shows how waters flowing down to the estuary might be used for carrying supplies in the direction of the capital.23  In all these cases, a blockage of the river, whether it was the Thames or a tributary, by a fish-weir would have been something to be avoided.  The same must have been true of other waterways, for instance the River Itchen in Hampshire, linking Winchester to Southampton, which was recorded in 1205 as having been obstructed by an undefined `encroachment or impediment’.24  Indeed, although the extent to which waterways were used to carry goods has been the subject of some controversy, the very fact that Clause 33 applied to the whole of England suggests that river transport was perceived as likely to be of widespread importance, perhaps especially for the movement of bulky commodities like grain.25

The exclusion of coastal weirs from Clause 33’s otherwise blanket prohibition was new to Magna Carta.  Exactly what was meant by per costeram maris is not in fact entirely clear, since a phrase so broad could in principle have applied to the entire English coastline, but presumably did not do so.  Probably the deciding factor was the depth of the water.  There was manifestly no attempt to prevent the construction of weirs along the shores of the Severn estuary, where they proliferated for centuries – a number of them have been excavated at Sudbrook Point, south of Chepstow, datable to both before and after 121526 – most likely because the estuary was broad enough, and deep enough at its centre, to allow navigation past the weirs in the direction of Gloucester.  The available technology was probably not capable of placing weirs in the entrances of ports which opened into deep waters.  Coastal weirs were sited in shallow waters, where they could be set up without difficulty and where there was easy access to the traps holding such fish as they caught.  Their size and complexity, however, made them expensive to build and maintain, so that they were primarily the creations of secular and ecclesiastical lords, who had them constructed (particularly in the case of religious houses) to ensure that they had an adequate supply of fish, and also to provide them with a valuable commodity which could be sold on the open market.27  Coastal weirs were probably excluded from Clause 33 mainly because they were less of a hindrance to navigation than fish-traps in rivers, but the omission may also have owed something to the willingness of the barons to act in their own interest, as well as in that of their London allies, and beyond them of the whole kingdom.  The range of benefits arising from Clause 33 was potentially a wide one.

1

M. Bateson, `A London municipal collection of the reign of John’, English Historical Review 17 (1902), 480-518, 707-30, at 726.

2

D. Hooke, `Uses of waterways in Anglo-Saxon England’, J. Blair (ed.), Waterways and canal-building in medieval England (Oxford, 2007), 37-54, at 53, n. 107.

3

V. Moss (ed.), Pipe rolls of the exchequer of Normandy for the reign of Henry II, 1180 and 1184, Pipe Roll Society, new series 53 (2004), 38.

4

For information about fish-weirs I have relied particularly upon A. Wheeler, The tidal Thames: the history of a river (1979), 80; C.R. Salisbury, `Primitive British fisheries’, G.L. Good, R.H. Jones, M.W. Ponsford (eds.), Waterfront Archaeology, Council for British Archaeology Research Report 74 (1991), 76-87; A. O’Sullivan, `Place, memory and identity among estuarine fishing communities: interpreting the archaeology of early medieval fish weirs’, World Archaeology 35 (2003), 449-68.

5

C.M. Woolgar, `”Take this penance now and afterwards the fare will improve”:seafood and late medieval diet’, D.J. Starkey, C. Reid, N. Ashcroft (eds.), England’s sea fisheries: the commercial sea fisheries of England and Wales before 1300 (2000), 36-44, at 36-7. 

6

D.C. Douglas and G.W. Greenaway (eds.), English Historical Documents ii: 1042-1189 (2nd edn., 1981), 1025-6..

7

H.T. Riley (ed.), Munimenta Gildhallae Londoniensis i: Liber Albus (Rolls Series, 1859),373-86.

8

Bateson, `A London municipal collection’, 485-6; C.N.L. Brooke and G. Keir, London 800-1216: the shaping of a city (1975), 214-15.

9

Wheeler, The tidal Thames, 5.

10

Bateson, `A London municipal collection’, 485-6.

11

O’Sullivan, `Place, memory and identity’, 452-4.

12

D. Goodburn and S. Davis, `Two new Thames tide-mill finds of the 690s and 1190s, and a brief up-date on archaeological evidence for changing medieval tidal levels’, J. Galloway (ed.), Tides and floods: new research on London and the tidal Thames from the middle ages to the twentieth century, Centre for Metropolitan History Working Papers series 4 (2010), 1-13, at 12.

13

art. cit., 6-10.

14

W. de G. Birch, The historical charters and constitutional documents of the city of London (revised edition, 1887), 9-10.

15

R.A. Brown, H.M. Colvin, A.J. Taylor, The history of the king’s works i: the middle ages, 2 vols. (H.M.S.O., 1963), ii, 708-9.

16

Birch, Historical charters, 9-10.

17

H.T. Riley (ed.), Munimenta Gildhallae Londoniensis ii:i: Liber custumarum  (Rolls Series, 1860), 40.

18

ib., 13-14.

19

G.M. Draper, `Timber and iron: national resources for the late medieval ship-building industry in Kent’, S. Sweetinburgh (ed.), Later medieval Kent, 1220-1540, Kentish history project 9 (Woodbridge, 2010), 55-77.

20

Riley, Liber custumarum, 42.

21

R.H.C. Davis, `The ford, the river and the city’, Oxoniensia 38 (1973), 258-67; R.B. Peberdy, `Navigation on the river Thames between London and Oxford in the later middle ages: a reconsideration’, Oxoniensia 61 (1996), 311-40.

22

T.D. Hardy (ed.), Rotuli Litterarum Patentium, 1201-1216 (Record Commission, 1835), 38, 52.

23

ib., 69.

24

T.D. Hardy (ed.), Rotuli Litterarum Clausarum, 1204-1224 (Record Commission, 1833), 52.

25

See J.F. Edwards and B.P. Hindle, `The transportation system of medieval England and Wales’, Journal of Historical Geography 17 (1991), 123-34; J. Langdon, `Inland water transport in medieval England’, Journal of Historical Geography 19 (1993), 1-11; J.F. Edwards and B.P. Hindle, `Comment: inland water transportation in medieval England’, Journal of Historical Geography 19 (1993), 12-14.

26

S. Godbold and R.C. Turner, `Medieval fishtraps in the Severn estuary’, Medieval Archaeology 38 (1994), 19-54.

27

W.R. Childs and M. Kowaleski, `Fishing and fisheries in the middle ages’, Starkey et al., England’s sea fisheries, 19-28, at 25.


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Original Latin

XXXIV

Breve quod vocatur Praecipe de cetero non fiat alicui de aliquo tenemento unde liber homo amittere possit curiam suam.

34

The writ called Praecipe is not in future to be issued to anyone for any tenement in respect of which a free man could lose his court.

Audio commentary

Referenced in

The regency government of Peter des Roches (The Itinerary of King John)


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Original Latin

XXXV

Una mensura vini sit per totum regnum nostrum, et una mensura cervisie, et una mensura bladi, scilicet quarterium Londoniense, et una latitudo pannorum tinctorum et russetorum et halbergettorum, scilicet duae ulnae infra listas; de ponderibus autem sit ut de mensuris.

35

There is to be one measure of wine throughout our kingdom, and one measure of ale, and one measure of corn, namely the quarter of London, and one breadth of dyed, russet and haberget cloths, that is, two ells within the borders; and let weights be dealt with as with measures.

Audio commentary

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Commentary for academic researchers

Both Clause 35, and the twelfth of the Articles of the Barons on which the clause is based, occur in a group of short entries of varying scope, and there seems to be no particular reason why either appears where it does – the issue was simply one regarded as needing attention.  Possibly it was taken up by the barons at a relatively late stage, and was then worked over during the negotiations of June 1215, for there is a notable difference in clarity and precision between the two versions, at any rate where measures were concerned (weights, perhaps because there was so much variety across the kingdom, were effectively left on one side).  The influence of the city of London, looking to safeguard its own interests, may be suspected in this - hence the specific naming of the quarter of London – but the final version of the Clause was more than a demand for advantage, for it also upheld royal aspirations and rights which had developed over several centuries.  Where the Article called for improvement, the Clause spoke of uniformity, something that English kings had been trying to impose since well before the Norman Conquest.1  The Clause’s requirements for cloth looked back less far, to the assize of Richard I issued in 1196.  That had been largely given up, but the fact that the Charter repeated its terms, and went beyond it in defining the types of cloth it affected, suggests that the assize’s failure had come to be regretted, and perhaps that the Clause as a whole should be regarded less as part of a critique of Angevin government than as – like Clause 18 – a call for more of it, with the king fulfilling his responsibilities in ways that benefited all his subjects, both those who made their living by trade and also those who bought the necessities of life in shops and markets.  In protecting the latter, the Clause would also have been in line with current thinking among theologians and moralists (Archbishop Langton doubtless among them) in Paris, where attacks on fraudulent weights and measures appeared frequently in sermons and treatises.2

The English monarchy was precocious in its insistence on uniformity of measures.  After Æthelstan’s Grately code (?928x939) had commanded that there be one coinage for his whole realm,3 Edgar’s Andover code (959x963) laid down that `there shall be one system of measurement and one standard of weight’; the latter was at first to be that of Winchester, but in a revision of the code London was quickly added (probably by Archbishop Wulfstan of York).4  Laws issued by Æthelred (1008) and Cnut (1020x1023)5 demanded action against false weights and measures, with which later kings also associated themselves – not only did Henry I take savage action against dishonest moneyers,6 but he also, according to William of Malmesbury, `punished the false ell in use among merchants, introducing his own forearm as a standard measure for all throughout England ...’.7  Pressure for uniformity was maintained after 1154.  When Henry II granted Fairwell Priory forty acres of land cleared in Cannock Forest, he stipulated that they were to be measured by `the royal perch’ (ad mensuram perticae regiae),8 and according to Glanvill false measures came under the general heading of falsifying – de crimine falsi ­– an offence which it was the king’s responsibility to prevent and punish.9  Henry had an interest which went beyond the maintenance of his regality, however, through his attempts to encourage trade (shortly after his accession he granted commercial privileges to the men of St-Omer)10 and through the demands he made on English suppliers for provisions for his court and his armies – he needed to be sure of obtaining the quantities he required.

In this respect Henry’s Irish expedition of 1171 may have been a turning point.  Not only did he draw heavily on several counties for food, drink and equipment, but money was also spent on buying measures – in Wiltshire two measures were bought, specifically for corn.11  Whether they were intended to weigh the goods as they were delivered, or to control the distribution of food and drink afterwards, is unknown, but in either case it seems unlikely that they differed in capacity, and their use may have had the effect of drawing attention to the variety of measures prevailing in the realm - accounts for the stocking of Norwich and Windsor Castles in 1174 contained payments for corn according to `the measure of Norwich’ and `the measure of Abingdon’.12  Probably this was regarded as unsatisfactory, for no later than 1176 an assize was issued regulating the sale of wine;13 no details have survived, but the pipe rolls record numerous amercements for infringements up to the end of Henry’s reign, extending over the whole of England, from Northumberland to Kent.  It is highly likely that this assize, like those issued in the thirteenth century, prescribed basic maximum prices for wine, while the fact that two amercements imposed in 1186 involved the measure of wine, with one man being specifically amerced `because he sold wine by a false measure’,14 shows that the assize was concerned with this aspect of the vintner’s trade as well.  Penalties were usually modest, between 10s. and two marks, but could be as much as twenty marks.  Other references to amercements pro falsa mensura may refer to this assize – the burgesses of Chichester were mulcted of ten marks under this heading in 118015 – or there may also have been a more general campaign against dishonesty and error, one which by 1187 had been joined by a directive concerning grain.  In that year Ailmund of Hereford accounted for £100 `for a false measure of corn’, while a year later the Surrey township of Reigate paid three marks for the same offence.16  These last offences should perhaps be associated with an ordinance ascribed to Henry II which fixed the weight of loaves of bread, white and wholemeal, in proportion to the price of wheat, so that the weight of the loaf rose as the price of the grain fell.17

The government of Henry II’s sons aspired to be no less ambitious, and intrusive, where weights and measures were concerned.  At the very beginning of Richard I’s reign it was proclaimed that `all dealings in things for sale throughout the whole realm are appointed to be of one weight and measure’18 (an order quite possibly connected to Richard’s planned crusade), though as if in counterpoint to this nationwide decree, and to show the difficulties the government faced in hoping to implement it, at exactly the same time the Norfolk priory of Horsham St Faith received an annual grant of quantities of salt `according to the measure of Maltby le Marsh’,19 a village near the Lincolnshire coast (perhaps the measure was a variant of the Yarmouth quarter, which was much larger than the standard one).20  Among the articles of the eyre issued in 1194 was one inquiring `Concerning wines sold contrary to the assize, and false measures of both wine and other things’,21 and that year’s Wiltshire eyre duly received presentments of wine sold in breach of the assize and of corn sold by a false measure.22

But more must have been felt to be necessary, for a comprehensive assize was issued by Richard I on 20 November 1196, acting, according to the preamble, `by the petition and counsel of the bishops and of all his barons ...’.23  Again, the king’s needs for supplies, and, perhaps, for the money to be raised from penalties for infringement, may have been at least partly responsible.  It commanded that for basic foodstuffs all the measures in England should be the same, with `one good horse-load’ as their yardstick.  (The fact that the measure was ordered to be struck level – rasa – rather than heaped suggests that it was less vague in 1196 than now appears, and was capable of being understood in concrete terms by those who received it.)   Measures for wine, ale and other drinks were likewise to be identical, albeit `according to the diversity of liquors’, meaning that although the measure for wine, for instance, was to be the same everywhere, it would be measured in quantities differing from those for ale and other liquids.  Hence, no doubt, the directive that measures were to be nail-marked to prevent deceit – the marks were presumably placed at different heights to show the quantities relevant to particular commodities.  Weights, too, were to be the same throughout the kingdom.  These clauses may have been only restating existing regulations, but the assize’s more detailed rulings on cloth appear to have been new.  The breadth of woollen cloth, wherever it was made (the regulation would appear to have applied to foreign as well as English-made cloth), was now fixed at two yards within the borders (`selvedges’), and was to be measured using an iron rod.  Moreover the cloth was to be uniformly good, in the middle and at the sides, a requirement which, along with others intended to protect potential buyers from dishonesty on the part of weavers or merchants, was to be policed by groups of four or six men, and offenders against the assize were to be arrested and imprisoned, while their chattels were to be seized into the king’s hand.

To enable the assize to be observed, £11. 16s. 6d. were spent on the authority of the justiciar, Hubert Walter, `on making measures and gallons and iron rods and weigh-beams and weights for sending to all the counties of England ...’; special measures were also made for Winchester and Portsmouth, and perhaps Lincoln.24  The new measures were to be exclusively used after 2 February 1197, while cloth which was less in breadth than the assize allowed was not to be sold after 16 March following.  These regulations were enforced.  Some time after Easter 1198 cloth was taken to Westminster from St Ives fair, having been arrested for contravening the assize,25 and the articles drawn up for a nationwide eyre which began in autumn 1198 show that serious efforts were made to discover how far the assize had been observed, and whether the men appointed to uphold it had fulfilled their responsibilities.  All the wine of anyone found to have sold it contrary to the assize, and not just the offending liquor, was to be taken on the king’s behalf, and its owner, as well as the sellers, was to be in mercy.26  It must have been under this assize that errant vintners were amerced at the Staffordshire eyre held in autumn 1199.27  References from around this time to `the king’s iron rod’ at Gloucester, and `to the iron yards of King John of England’ in London, suggest that the reform of linear measures, too, was made effective.28

The assize of 1196 was concerned with measures, an assize for wine issued by King John at the beginning of his reign attempted to fix prices, both wholesale, by the barrel (252 gallons), and retail, by the sester (three or four gallons).29  Perhaps the king and his advisers failed to take into account the rise in prices of the years around 1200,30 for according to Howden the assize led to protests that rates had been set so low that merchants could make no profit, with the result that the minimum price of the sester (he says nothing about the barrel) had to be raised again.  Presumably the merchants importing the wine found that they could not pass it on to vintners who were encountering sales-resistance provoked by the higher prices, and were therefore left with large quantities on their hands of a liquid which (as with all medieval wine) did not keep for long.  The very fact that there were objections shows that the assize had an effect, but since Clause 35 said nothing about prices it is possible that the failure of John’s bid to fix those of wine made the king’s government, and the barons who in 1215 aspired to direct its workings, reluctant to involve themselves with price controls for the time being.

The reach of Angevin government, though often impressive, was in fact apt to exceed its grasp, and the regulations set out for cloth in the 1196 assize, too, could not be maintained, though according to Howden this was due less to over-ambition or miscalculation than to venality.  When Hugh Bardulf and other justices went to Boston fair in 1201 intending to enforce the assize, the merchants assembled there prevailed on them to abandon it, both for the breadth of cloths and the measurement of corn, so that in future they could make their cloths broad or narrow, as they pleased: `whereby those justices gained a great deal of money on the king’s behalf, to the detriment of many ...’.31  There can be no doubt about the financial return, for the 1202 pipe roll records payments by the men of twenty-seven towns and cities, usually acting for themselves, though occasionally the sheriff accounted for them, to be allowed to buy and sell dyed cloths `as they used to do in King Henry’s time’.32  Given the close correlation of these entries with Howden’s account of the abrogation of the assize, it seems impossible to doubt, though the pipe rolls do not specifically say so, that these payments related to the measurements of the cloths thus sold.  Geographically they ranged from Newcastle and York in the north to Exeter in the south west, and extended through the midlands to Winchester and west to Gloucester, but especially affected East Anglia and Lincolnshire, with Lincoln itself paying £40.  Towns which did not pay, however, may have had been expected to continue to enforce the assize - amercements for failing to observe an assize on cloths were imposed at the 1203 Staffordshire eyre on the towns of Stafford, Tutbury, Lichfield and Burton-on-Trent, none of which paid for exemption in the previous year, while the jurors for Newcastle-under-Lyme were penalised because `they said that no cloth was cut [sertus] in their town and later they admitted that deficient [debiles] cloths were cut there.’33

The well-nigh universal reference to dyed cloths, and the fact that the 1196 assize had forbidden dyeing (except in black) outside cities and important boroughs, suggests that a high-quality and – since most dye-stuffs were imported - probably expensive product was involved, one whose production was largely monopolised by the leading citizens of cloth-producing towns.  A return to the procedures of Henry II’s reign need not have entailed the abandonment of all controls, but it is likely enough that the abandonment of the 1196 regulations led to a decline in the quality of cloth, and perhaps also to an increase in its price.  It did not, however, mean that John’s government ceased to concern itself with weights and measures.  In 1202 an assize of bread was issued, at most points identical with that of Henry II but with a few variations.34  It was proclaimed generaliter, but two years later an assize fixing the weight and price of white and black bread was apparently issued for Winchester alone,35 while in January 1207 there was even an attempt to regulate the price of lampreys.36  In between these two ordinances came an assize of money,37 while an assize of wine (presumably that of 1196) continued to be enforced.  But at the same time the local variations which it was the object of such legislation to eradicate persisted, as, indeed, they continued to do long after the thirteenth century – in 1211 the sheriff of Dorset and Somerset accounted for 3000 measures of canvas thread, needed for making ships’ ropes, `according to the weight of Bridport’.38  King John himself, moreover, appear sometimes to have been careless about the observance of measures, in October 1213 telling the constable of Bristol not to trouble merchants from certain parts of Wales over the weighing of their wool, `since it is perfectly lawful for them to have more or less in their sacks as they please ...’.39

Clause 35 can probably be best seen as the result of the interests of London combining with the centralising thrust of Angevin government, as represented by the 1196 assize, in an attempt to overcome the effects of local variety and royal caprice.  As far as cloth was concerned, it was socially wide-ranging in its application, for whereas dyed cloth and haberget (so named from its resemblance to chain-mail)40 were fine and expensive weaves, russet was a cheap, undyed cloth, much worn by country-people. The clause’s insistence on a two-yard width for cloth may in fact have been impracticable, requiring the use of double looms when a narrower cloth could be much more easily, and cheaply, woven on  the more widely available single loom, but it probably arose from an awareness of the benefits of quality-control as well as of standardisation.  The fact that the clause remained unchanged in all the reissues suggests that this was understood.

1

For the background see, in particular, R.D. Connor, The weights and measures of England (1987).

2

J.W. Baldwin, Masters, princes and merchants: the social views of Peter the Chanter and his circle, 2 vols. (Princeton, 1970), i, 265-6.

3

F.L. Attenborough (ed.), The laws of the earliest English kings (Cambridge, 1922), 135.

4

A.J. Robertson (ed.), The laws of the kings of England from Edmund to Henry I (Cambridge, 1925), 29; P. Wormald, The making of English law: King Alfred to the twelfth century, i: legislation and its limits (Blackwell, Oxford, 1999), 314.

5

Robertson, Laws, 87, 101, 179.

6

C.W. Hollister, Henry I (Yale, 2001), 297-8.

7

J. Hudson, The Oxford history of the laws of England i: 871-1216 (Oxford, 2012), 257.

8

Sir William Dugdale, Monasticon Anglicanum, 6 vols. (1817-30), iv, 111-12.

9

G.D.G. Hall (ed.), The treatise on the laws and customs of England commonly called Glanvill (2nd edn., Oxford, 1993), 62.

10

C.N.L. Brooke and G. Weir, London 800-1216: the shaping of a city (1975), 270.

11

PR 17 Henry II (1171), 34-5, 84, 89, 91; PR 18 Henry II (1172), 123.

12

PR 20 Henry II (1174), 37, 112.

13

PR 22 Henry II (1176), 54, 57, 126, 184 are the earliest references.

14

PR 32 Henry II (1186), 8, 176.

15

PR 26 Henry II (1180), 31.

16

PR 33 Henry II (1187), 132; PR 34 Henry II (1188), 26.

17

W. Cunningham, The growth of English industry and commerce during the early and middle ages, 3 vols. (5th edn., Cambridge, 1903-17), i, 567-9.

18

H. Ellis (ed.), Chronica Johannis de Oxenedes (Rolls Series, 1859), 65.

19

L.F.Salzman, English trade in the middle ages (Oxford, 1931), 46.

20

A.R. Bridbury, England and the salt trade in the later middle ages (Oxford, 1955), 159.

21

W. Stubbs (ed.), Chronica Rogeri de Houeden, 4 vols. (Rolls Series, 1868-71),iii,  264.

22

F.W. Maitland (ed.), The rolls of the king’s court in the reign of Richard the First, A.D. 1194-1195, Pipe Roll Society 14 (1891), 85, 99, 111, 113.

23

Chronica Rogeri de Houeden, iv, 33-4.  For the date see PR 9 Richard I (1197), xxj-xxij.

24

PR 9 Richard I (1197), 17, 24, 94, 160.

25

PR 10 Richard I (1198), 161.

26

Chronica Rogeri de Houeden, iv, 62.

27

G.Wrottesley (ed.), `Staffordshire suits extracted from the plea rolls temp. Richard I and John’, Collections for a history of Staffordshire 3 (1882), 38, 40, 45.

28

W.H. Prior, Notes on the weights and measures of medieval England (Paris, 1924), 22-3.

29

Chronica Rogeri de Houeden, iv, 99-100.  The twentieth-century equivalents are those of Salzman, English trade, 378.

30

P. Latimer, `Early thirteenth century prices’, S.D. Church (ed.), King John: new interpretations (Woodbridge, 1999), 41-73.

31

Chronica Rogeri de Houeden, iv, 172.

32

Details in PR 4 John (1202), passim.

33

Wrottesley, `Staffordshire suits’, 97-8.

34

H.R. Luard (ed.), Matthaei Parisiensis ... Chronica Majora, 7 vols. (Rolls Series, 1872-83), ii, 480-1.

35

T.D. Hardy (ed.), Rotuli Litterarum Patentium 1201-1216 (Record Commission, 1835), 41.

36

Ibid., 68.

37

Ibid., 55.

38

PR 13 John (1211), 221.

39

T.D. Hardy (ed.), Rotuli Litterarum Clausarum i, 1204-1224 (Record Commission, 1833), 152.

40

P. Walton, `Textiles’, J. Blair and N. Ramsay (eds.), English medieval industries (1991), 332-9.

Referenced in

The Copies at Lincoln and Salisbury of the 1215 Magna Carta (Features of the Month)


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Original Latin

XXXVI

Nihil detur vel capiatur de cetero pro brevi inquisitionis de vita vel membris, sed gratis concedatur et non negetur.

36

Nothing is to be given or taken in future for a writ for an inquest concerning life or members, but it is to be given without payment and not denied.

Audio commentary

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Commentary for academic researchers

(a) Procedural context

Clause 36 was primarily concerned with access to jury trial for people accused of felony, that is, of serious breaches of the king’s peace, and to the writ, or writs, which enabled a suspect to secure it.  It appears in the context of a group of clauses mainly concerned with legal issues.  Adapted from number 26 of the Articles of the Barons, its most notable addition, the requirement that nothing was to be given or taken for the writ in question, was doubtless intended to stress the need for its being made freely available to everyone who applied for it, perhaps by ensuring that nobody had to pay for it after, as well as before, the proceedings it initiated.  The presence of this clause, both in the Charter and among the Articles, might seem surprising, given its closeness in both documents to the king’s undertaking not to sell, deny or defer justice to anyone (Article 30, Clause 40), which appears to offer a similar guarantee.  There may have been some recent scandalous case or cases, no longer identifiable, which had aroused concern about the king’s misuse of his position as fount of justice, and therefore made specific provision against a particular abuse seem essential.  But it is no less possible that the inquests referred to were regarded as one of the benefits of Angevin legal adminstration, like the petty assizes (clauses 18-19), and were named as such in order to ensure that they were made as widely available as possible.

The writ referred to in Clause 36 is notably ill-defined, quite possibly deliberately.  In fact no writ `concerning life or members’ is mentioned in contemporary sources, and although by 1215 the ground covered by that expression was increasingly monopolised by one particular writ, ordering the investigation of accusations allegedly motivated by hatred, the development of that writ, and also its application, may have been a slow and uncertain process. By the time of Magna Carta charges of felony could be made in two ways.1  The Assize of Clarendon of 1166 had either introduced or refurbished a system of public prosecution of serious offenders through charges brought by juries of presentment.  But although as early as 1170 the instructions for the Inquest of Sheriffs had included investigating whether suspects had been corruptly or maliciously (odio) accused under the Assize,2 inquests into such charges which had been initiated by writs are not recorded before John’s reign, when on a very few occasions suspects described as having been arrested de retto, or because they were rettati, paid for inquests as to whether they had been charged out of malice.3   Those accused in such cases, which had presumably originated with presenting juries, also faced the prospect of proving their innocence by undergoing an ordeal, but one involving immersion in water or holding a red-hot iron rather than battle.  But although the penalty for failure was the same in every case, namely execution or mutilation, it may be that the men and women accused by juries usually came from a lower social stratum than those involved in appeals, and were therefore not thought worth the Charter’s attention.  Or perhaps the `many and varied inquests and interrogations’ through which the legal treatise known as Glanvill expected the king’s justices to establish the trustworthiness of `public notoriety’ were still regarded as a sufficient safeguard against abuse.4  For although the Charter does not in fact say so, it is clear that Clause 36 was essentially concerned with the alternative to the jury of presentment, namely the appeal of felony, a personal action made in a prescribed form which alleged that a serious crime had been committed against the accuser, or – in cases of homicide – against someone close to him, and except in particular circumstances, notably when either party was a woman, offered to prove the guilt of the accused by judicial combat.  The king’s justices increasingly looked askance at combat as a method of proof, however, and by the late twelfth century it had become possible for a litigant appealed of felony to purchase a writ ordering the holding of an inquest, made by twelve jurors who would investigate the facts before returning a verdict which would effectively settle the case.

(b) Varieties of writ: the Glendon case

It is possible that such inquests were being held by the late 1170s – in 1178 one Nicholas de Offeton was recorded as owing half a mark `because he was convicted of having appealed Thomas Fagflur out of hatred’5 – and certain that they constituted part of the system of criminal justice by the early 1190s.6  But they were referred to under a variety of terms, and it is impossible to be sure that the same processes were always used to initiate them.  This can be clearly seen in the long-running proceedings which resulted from an appeal made in Northamptonshire, in which Richard son of Henry of Glendon was accused of killing his near-namesake Richard of Glendon.7  Proceedings began no later than July 1198, with an appeal against Richard son of Henry by the dead man’s widow and brother.  Two other men failed to come into court and were outlawed, but Richard surrendered and was imprisoned, and it was presumably on his initiative that Archbishop Hubert Walter, who was then also justiciar of England, ordered an inquest `if he was guilty or not’.  The inquest found that he was not guilty, so Richard was released under surety to attend the next eyre, at which he duly appeared and was acquitted again.  But this did not satisfy the appellors, who went to Westminster and presented another royal writ for holding an inquest, by which Richard was acquitted once more, after which the case was likewise remanded to the next eyre, where an inquest held under oath confirmed the verdicts of the previous three.

One of these inquests may have been the one recorded in Michaelmas term 1199, at which twelve Northamptonshire men, summoned to investigate the death of Richard of Glendon, and also of that of Richard of Desborough (not previously mentioned), named two men as responsible, reported that these had been outlawed, and stated that they did not suspect the other Richard of Glendon, appealed by his alleged victim’s widow, Sibyl.8  This verdict notwithstanding, proceedings soon began again, for in May 1200 Sibyl returned to Westminster and once more appealed Richard of killing her husband, claiming that he had done the deed with an axe which she had herself subsequently extracted from Richard’s head.  At the same time Richard of Desborough’s widow Melisent likewise appealed Richard son of Henry of her husband’s death.  Richard son of Henry came into court once more, denied the charge, and described how he had already been appealed of the death of her husband by Melisent, who had obtained a royal writ ordering an inquest into the death.  This had been held before justices itinerant, and he offered the king ten marks `for having the verdict of the knights by whom the inquest was made’ (presumably this was one of the two inquests already referred to as having taken place at eyres), while also claiming that `she appeals him out of hatred and spite’.  He did not, however, petition for the case to be investigated on the grounds of its having been initiated in malice, but asked instead that if he was not permitted to have the earlier verdict, then (as it appears – the wording of the record is less than lucid) another jury should be convoked to swear to that verdict, for which again he offered ten marks to the king.

No further proceedings are recorded until October 1207, when proceedings began once more, now with Richard of Glendon’s son William as the appellor.  They had started in Northamptonshire county court, but Richard son of Henry paid one mark to have the case transferred to Westminster, and there he came back into court, and told how on his previous appearance he had been acquitted for the fifth time, which may indicate that the earlier verdict had indeed been transmitted in some form to Westminster, as he had sought.  Perhaps it had been construed as relevant only to Melisent’s appeal, for it did not suffice to end the proceedings against Richard, who offered a further fifteen marks for having yet another inquest.  Either this cleared him for the sixth and last time, or the appellors finally abandoned their attempts to convict him, for in 1208 the pipe roll recorded the ending of the case, with a settlement made under the auspices of King John in person, at a cost of twenty marks which were paid by both parties – Richard contributed fourteen and William six.  The agreement took the form of a transfer of land, with Richard granting two virgates in Glendon to William.9  In proceedings which had lasted for at least ten years, either three or four inquests were recorded as having been held as directed by royal writs, but although the term `hatred and spite’ was used once in pleading, there is no clear evidence that it constituted the substance of either the writs or the inquests – the only identified writ defined its terms of reference as those of guilt and innocence.  Two of the writs, moreover, were said to have been obtained by the appellors, who presumably hoped to endanger the life or limbs of Richard son of Henry, not to protect them.

(c) The emergence of the writ de odio et atia

A number of payments for writs are recorded which make no mention of malice.  In 1200, for instance, Walter of Barethorpe paid half a mark for an inquest `as to whether he was appealed unjustly or not of rape’,10 and a year later Stephen the forester, appealed of burgling a house and trying to kill its owner, obtained a writ from the justiciar ordering an inquest in Somerset county court as to whether or not the accusation was true.11  In 1206, in another Northamptonshire case, Hugh son of Emma gave half a mark `for a writ for an inquest as to whether he is guilty of the death of Ralph of Whitfield or not’,12 and in 1212 William Esturmi gave five marks for a writ described in almost identical terms, concerning the killing of Thomas of Buxhall.13  In 1207 and 1208 at least three payments were made pro habenda inquisicione de appello.14  And even when hatred was alleged, it may not at first have always been clear to litigants who should, or should not, have been motivated by it.  When in May 1200 Geoffrey de Hosbringes appealed James de Hage of robbing him and wounding him with a knife, he concluded his accusation by alleging that James had done this `out of ancient hatred’, only for James in his turn to claim that the appeal was grounded in malice, with reference to the `ancient hatred’ to which Geoffrey himself had referred.15

There can be no doubt that what became the writ de odio et atia, ordering an inquest to discover whether an appeal had been made out of malice, was in the years on either side of 1200 the one most commonly used to initiate investigations of the truthfulness of accusations of felony, a development which can only have been furthered by its also beginning to be adapted to serve the same purpose where charges brought by presenting juries were concerned.  But although it was also the one most often referred to in the records of judicial proceedings, the examples cited above, which several times occur among other payments for inquests and writs which were specifically concerned with malice, may indicate that it was not the only one, and that the writ de odio et atia served rather as the mould into which a number of what may be described as investigatory writs were poured, finally absorbing these into itself.

Although the form which the writ de odio et atia took in the period before Magna Carta can only be deduced from what appear to be paraphrases of it in the records of proceedings which it initiated, it would appear that it was already developing towards the form it took when first recorded in the mid 1230s.16  When in 1208 William son of Norman appealed the three sons Ascelina de Waterville of wounding and robbing him, and Ascelina herself of ordering the attack, the appellees obtained a writ to the sheriff of Cambridgeshire ordering him to hold an inquest as to whether the appeal had been made `for just cause and because they are guilty of it, or through spite and hatred and because he withdraws the customary services which he should perform for the tenement he held of him [sic] ...’.17  Here, as later in the thirteenth century, a jury was to investigate both the merit of the appeal and the base motive allegedly behind its making.  But since shortly afterwards an inquest in Suffolk was directed to discover only `if Roger Cokesie appealed Godfrey de Louvain of breaking the king’s peace for hatred and malice or because this Godfrey is guilty therein ...’,18 it would appear that a standardised formula had yet to be agreed upon.

The purpose of the writ, however formulated, was the substitution of a jury’s verdict for trial by battle on appeals of felony, on the grounds that the latter had been unworthily made.19  Straightforward hatred in direct response to injury might have been allowable as a proper motive for bringing an appeal, but not when it was contaminated by spite (atia) or envy (invidia), and least of all when the issue was to be decided by the judgment of God, who embodied before all others the qualities of truth and justice which writs and inquests repeatedly contrasted with the malice alleged against false accusers.20  That judgment might be invoked to cover a wide range of offences.  The writ de odio et atia subsequently came to be confined to allegations of homicide, but in the early thirteenth century there were many other felonies whose conviction might result in hanging or mutilation – not only homicide and theft, but also rape, wounding, assault and simple breach of the king’s peace.  Among the miracles of St William of York in around 1177 was the restoration of sight to a man named Ralph, who had been appealed of breach of the king’s peace and blinded following his defeat in a judicial duel.21  A great many appellees, as well as the king’s justices (though seemingly not King John, who appears to have enjoyed watching trials by combat), must have been glad to find a substitute for a means of proof in which the battle was so plainly likely to favour the strong, and whose consequences could be so terrible for the losers.

(d) Consequences: bail and jury trial

Although the result of a favourable inquest under a writ de odio et atia had by the later thirteenth century become a grant of bail, whereby appellees (or, increasingly, those indicted) were freed to sureties who guaranteed their future appearance before royal justices, malicious accusations before 1216 only occasionally provided justification for bail, although a few cases are recorded.  In 1205, for instance, three Yorkshire people gave three marks for an inquest `whether Elias de Bridehale appeals them through spite or because they are guilty, and that if they are not guilty they may be delivered to the custody of honest men ...’,22 and a year later Hugh son of Emma, charged with the death of Ralph of Whitfield, was described as owing one mark for his release to pledges until the next Northamptonshire eyre, and a further 6s. 8d. for a writ for an inquest as to whether he was guilty or not.23  A number of other payments to be released to bail are indeed recorded, sometimes at very high prices, but they are hardly ever associated with inquests or writs, being usually enrolled in terms suggesting that those involved had simply bargained with the king for this favour.   Thus in 1203 Alfred of Glentham, appealed of homicide, paid five marks for his own and his brother’s release to the custody of two or three Lincolnshire knights, but when he appeared in the Curia Regis nothing was said to suggest that he or anyone else regarded the accusation against him as having originated in malice.24 It is noteworthy that when at precisely this time the Londoners claimed the privilege of bail for suspected killers, stating that `in London no one ought to be put in prison as long as may be able to find suitable pledges ...’, they underlined the exceptional nature of this right when they declared that `if the suspect were found elsewhere he would not be let go in spite of producing pledges, and so he would be put in prison until king or justices deliver him ...’.25

Glanvill had declared that nobody appealed of homicide should be released to sureties before his case came to trial,26 and when in 1204 Richard Ruffus, appealed by Alexander son of William of fatally wounding the latter’s brother Bartholomew, pleaded that the king had ordered an inquest as to whether Alexander’s appeal had originated in malice, he was accordingly sent back to prison until it could be held.27  This position was upheld by King John himself, when in November 1207, possibly in response to a recent case which had led to an ex-sheriff of Somerset and Dorset being amerced of ten marks `for men appealed of homicide released to pledges without warrant from the king or justiciar’, he commanded distincte that nobody appealed of homicide was to be released on bail except on his own specific instructions.28  Indictments may have been treated differently, for a year later Geoffrey of Compton, a Gloucestershire man accused (rettatus) of homicide , was recorded as owing three palfreys (the equivalent of £10) `so that he may be in the custody of lawful men until the first session when justices come to those parts, and then stand to right’29 – possibly the personal nature of the appeal meant that there was a greater danger of feud and disorder if the appellee was not kept out of the way of his accuser – and in any case money, to a king with John’s urgent needs, could always open a prison door.  In 1212 William de Edfunt, appealed of killing Gamel son of Hugh de Dive, was recorded as owing ten marks `so that he may be delivered to the keeping of honest men’.30  But such a concession was very rarely recorded, and two years later it was only on the orders of the justiciar (acting on the king’s behalf because John was abroad), that two suspected killers were released to pledges, even though both had been cleared by inquests held before a sheriff.31

All the signs are, in fact, that in John’s reign the purpose of an inquest authorised by writ was to secure the outright acquittal of the person appealed.  In this respect the writ ran parallel with another, and similar, means of attaining the same end, namely the exception de odio et atia32 – indeed, the dry phraseology of the judicial records sometimes makes it difficult to tell the writ and the exception apart.   An exception was a plea intended to invalidate an appeal.  It was made in court once proceedings had begun, and seems to have been most often employed at eyres, where an appellee wishing to challenge the accusation against him could allege malice and – as usually happened – offer payment for an inquest to substantiate his claim, knowing that the justices could quickly have a jury summoned which could decide the matter.  Thus when Eudo of West Ashby was appealed of assault and robbery by Robert the nephew of Eborard at the 1202 Lincolnshire eyre, he was probably presenting an exception when he denied the charge and offered 20s. `for having an inquest whether he appeals him for a just cause or out of hatred and spite.’  The offer was accepted, a jury summoned and Eudo’s claim upheld, leading to the annulment of the appeal and to Robert’s being taken into custody.33  Not until around 1230 did the king take over the task of prosecuting an invalidated appeal, before then annulment meant acquittal.  A writ de odio et atia, by contrast, largely circumvented the technicalities, to concentrate on the question of the appellee’s guilt or innocence, upon which a jury could deliver a decisive verdict.

It would be an exaggeration to say that this was always the case, and that an allegation of malice invariably led to, or even meant, jury trial of only the issue of guilt.  It may be that a defence de odio et atia sometimes enabled jurors to clear a suspect who had killed by accident or in self-defence, as it commonly did later in the thirteenth century, but although pardons could be granted on such grounds, before 1216 as well as afterwards,34 there is no evidence for juries acting in this way in John’s reign.  Perhaps it was felt that the question of intent was best left to the judgment of God, whereas the processes leading up to the moment when God spoke were capable of contamination by malign purposes which human agencies could investigate and expose. Possibly, too, the ways in which allegations of malice were inquired into were still, in the early years of the thirteenth century, too close to their point of origin for jurors to be prepared to depart from them and shape them to other purposes.

What is clear is that juries did sometimes directly address the question of malice and find it unconvincing, even when the grounds existed for upholding an appellee’s claim.  In 1203 Henry Engaine began an action against Robert de Waterville in Northamptonshire county court, and then paid to have it transferred to Westminster, where in November he appealed Robert of assault and robbery at Sibberton and offered battle by way of proof.35  Robert denied the accusation, and offered one mark `for having a lawful inquest by such men of the country as are not the abbot of Peterborough’s men whether the appeal is true or spiteful ...’.  He was clearly applying for a writ ordering an inquest to be held in Northamptonshire, for the litigants were instructed to return to Westminster in the following January to hear the jury’s verdict, which was that the appeal had not been grounded in malice.  On the face of it this was a surprising judgment, in that Engaine and Waterville were neighbouring landowners who were plainly at loggerheads, in a property dispute which also gave rise to an action of novel disseisin, and their quarrel lasted for several years, being only concluded by a settlement highly favourable to Engaine in the summer of 1208.  Given this background to Engaine’s appeal, it would have been perfectly reasonable for the jurors to decide that it had been made out of hatred for Waterville, but they chose not to do so.  Perhaps Waterville’s attack on Engaine had been so blatant that the allegation of malice in the resulting appeal could not be sustained, even though it clearly formed part of this dispute.  Or possibly Waterville was already offering a settlement to the dispute which the jurors felt was inadequate, and therefore dismissed the allegation of malice in order to enable the appeal to continue and Engaine to demand better terms.  In either case, the jurors did not give a verdict on the truth of the accusation but focussed instead on the motives behind it, as the writ nominally required them to do.

They were not unique in this, for in other cases jurors showed that they had taken the possibility of malice seriously, and investigated it as such, as, indeed, they can sometimes have had little option but to do, given the detailed objections which some appellees made.  When in 1212 Ralph son of Gunnilda claimed that Robert of Sibson and others had assaulted and robbed him outside Yaxley in Huntingdonshire, Robert’s response, in claiming that the action had been brought out of malice arising from a plea between his nephew and Robert’s lord, and from Robert’s own actions as serjeant of the hundred in taking a distraint from Ralph, was so detailed as to make it inevitable that any consequent inquest would focus on this defence (unfortunately there is no surviving record of the proceedings which followed).36  In other cases juries discovered for themselves the motives underlying appeals.  Thus at the 1203 Shropshire eyre the Bradford jury dismissed Richard Wygan’s appeal against William the reeve of Ercall, finding that `he appeals him out of spite and to have some land which he claims against him ...’,37 and in 1208 a Yorkshire jury found that Marmaduke of Thwing, appealed of homicide by Lambert of Watton, was `appealed for malice on account of some corn.’38    In 1206 justices in Lincolnshire heard an appeal brought by Martin son of Ailmer and his wife against three men, who, they alleged, had killed their son Walter.  The appellees paid three marks for an inquest as to `whether they appeal them out of spite or because they are guilty ...’, after which a Lincoln jury acquitted them.39  But the verdict said nothing about malice, instead quashing the appeal because the appellors could not claim to have witnessed their son’s death, as in strict law they should have been able to do.  Walter had in fact drowned by falling into the River Witham from a boat in which he had been travelling with the appellees, and although the jurors found no reason to convict the latter, they may well have felt that the appeal was not unreasonably brought, and that there was no reason to find that it had originated in malice.

(e) Shaping the rules

Although juries sometimes responded to a claim that an appeal had been made out of malice by stating simply that this had been the case - `Et inquisitum est per legales homines quod athia est ...’, as a Buckinghamshire jury returned in 120640 – it is more likely that on these and other occasions they treated the essential issue as one of guilt or innocence, as, indeed, they were effectively instructed to do, when they were required to decide whether the appellee was guilty or had been appealed out of hatred.  In such cases the allegation of malice furnished an excuse for a straightforward verdict, which was not necessarily one of acquittal.  In 1201 a Hertfordshire jury, summoned to investigate whether the appeal of robbery against Richard le Frere had been made `through hatred only or if Richard is guilty of it’, returned that they believed him to be guilty.41  But that they should have sometimes provided more information than they had apparently been asked for, or acted in seemingly unpredictable ways, may indicate that procedures under the writ were still not fully worked out.  Litigants appear to have been aware of the fluidity of the law, and sometimes made provision accordingly.  When John son of Thorald of Edlington appealed Andrew of Edlington at the 1202 Lincolnshire eyre of driving his father from his home, robbing him and ill-treating him so that he later died, Andrew’s response was to give ten marks `for having a speedy judgment and for having an inquest whether this appeal was made for a just cause or from hatred and spite, and for having licence to make an agreement ...’, and the case finished with both parties putting themselves in the king’s mercy.42  Six years later the Devon magnate Hugh Peverel, who was probably acting for two of his tenants, paid ten marks `that the sheriff should have it inquired whether Walter son of John appeals Daniel de Numelande of the death of his brother out of hatred and spite or because he is guilty of it, and if the inquest returns that he is not guilty, that they may have licence to make an agreement together ...’.43  A verdict of acquittal might not yet be enough to bring an action entirely to an end, a formal settlement between the parties might prove necessary as well (as it did, for instance, in the case of Richard son of Henry of Glendon).

Weakening an appellor’s case so that he became willing to settle with the appellee, without the latter necessarily facing either a duel or jury trial, may from the first have been one of the ancillary purposes served by the writ de odio et atia – in 1195 Matthew son of Bela accounted for 31s. 8d. `for licence to settle concerning appeals made out of hatred’.44  It could also provide a means of delaying proceedings, the better either to induce the appellor to abandon his action or to make him more amenable to a settlement.  The inquests held under the writ could detect exaggerations as well malice, though the two may sometimes have been equated.  When Alan of Mortham appealed William son of Roger at York in 1208, accusing him of assault and wounding, William paid one mark for an inquest, which led to the coroners disclosing that Alan had not shown them a wound, as the protocols of the appeal required, but only `a little healed scratch’, and on these grounds it was attested that `this appeal was made out of spite’.45  And it could occasionally provide appellees with a way of striking back at appellors whose own misdeeds could be brought to light by an inquest.  The appeal made by men named Martin and Paul against Hervey son of William at the 1201 Cornwall eyre, alleging arson and the abduction of a serf, resulted in the jurors finding that the appeal was malicious and that the appellors were suspected of burglary and robbery.46

(f) Costs and purposes

The sums paid for writs or inquests varied considerably, even though the guiding principle, in this as in other matters, was no doubt the relationship between the king’s needs and the subject’s means.  As a rule the cost of a writ or inquest was not very great, often only half a mark, and few cost more than 40s., although those which did might cost considerably more.  In 1194 William de Ros offered ten marks for having a jury from two counties to inquire whether or not he had been maliciously appealed of killing three people and wounding others;47 in this case the seriousness of the alleged offences may have raised the price, as it may also have done for Ralph son of Ralph, who gave the same sum in 1208 `for an inquest into the appeal’ in which James of Chichester accused Ralph of robbing, wounding and attempting to kill him.48  But that was only half the amount which six men offered in 1213 for an inquest into the appeal which Alice, the widow of Elias of Ipswich, had brought against them for killing her husband,49 while John de Daiville, probably a member of a North Yorkshire gentry family, agreed to pay fifty marks in 1207 `for having an inquest whether William de Barton appealed him out of hatred or not, and if he is guilty of the forest offence he imputed to him or not ...’.50  Walter de Euermue, appealed of robbery and breach of the king’s peace in Lincolnshire in 1207, offered forty marks for an inquest into the appeal, and a further twenty marks for an inquest `by those who are well-informed’ as to whether it was made when he was in the king’s service in Poitou.51  Even when the sums involved were much smaller, the courts might still find ways of adding to them.  Robert Bernard, a Cornishman appealed by Osbert the doctor in 1212 of assaulting him and his wife, occupying their house and taking their chattels, offered three marks for an inquest `so that an inquest may be held as to whether he appeals him through hatred and spite or for just cause’, but ended up giving five marks for a jury.52  And in the same year Peter of Thelnetham in Suffolk, appealed by Warin son of Geoffrey de Witefeld of trying to kill him, was recorded as having given the king five marks for an identical inquest, but then having to offer two and half more to ensure that it was actually held.53

Clause 36 ordered that the writ substituting jury trial for battle should be freely available to all, and that it should never be refused to anyone wanting it.  When Adam of Beeston appealed William Gramaticus early in 1201 of assault, robbery and imprisonment, William responded by denying the charge and offering £5 for an inquest, subsequently raising his bid to ten marks, but the court coram rege refused the offer – Non recipitur oblatum - and gave orders for a duel.  William finally obtained licence to settle with Adam, but had to pay £100 for the privilege.54  Only a man of means could have offered to buy the writ, let alone to have settled the case, at the prices named (William paid over £50 within a year).  None of the men and women involved in the appeals cited above can have been paupers.  Very poor people, who were in no position to offer even 6s. 8d. for an inquest, might be, and indeed clearly were, appealed of felony, but no lawsuits have been noticed in which a court ordered that one be held gratis, nor do there appear to have been complaints afterwards that this did not happen.  It would seem, therefore, that the purpose of Clause 36 was less to ensure that the writ was had literally for nothing, than to turn it into a writ de cursu, available as such for a standard fee of 6d., and so to prevent haggling, of the kind described above, over what could be quite literally a matter of life and death, and to bring order, even routine, to the process of securing jury trial.  The very poor might still have been excluded from the benefits of the writ, but their problems were arguably not what the compilers of the Charter were concerned to solve, rather they seem likely to have been thinking mainly of needs of their dependents, of the gentry and lesser landowners who looked to the barons for leadership, men whose quarrels could bring them into the sort of contact with the king’s courts which their lords could usually expect to avoid.  Avoiding trial by battle might have been a matter of some importance for such men, just as having access to writs licensing delays and facilitating settlements could have constituted a welcome reinforcement of their legal armouries.  By effectively advancing the provision of jury trial in criminal cases at every social level, however, clause 36 may have had a wider impact than was originally intended.

1

For the background see J. Hudson, The Oxford history of the laws of England ii: 871-1216 (Oxford, 2012), 709-49.

2

 W. Stubbs (ed.), Select charters from the beginning to 1307, 9th edn., revised by H.W.C. Davis (Oxford, 1913), 176-7.

3

PR 6 John (1204), 102, 170. PR 10 John (1208), 21.

4

G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 171.

5

PR 24 Henry II (1176), 104.

6

PR 3-4 Richard I (1191-2), 110.

7

Curia Regis Rolls v, 1207-1209 (1931), 50, is the principal source for this case.

8

Sir F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols. (Record Commission, 1835), ii, 265-6.

9

Curia Regis Rolls v, 249; PR 9 John (1207), 136; PR 10 John (1208), 179.

10

PR 2 John (1200), 86.

11

C.E.H. Chadwyck-Healey (ed.), Somersetshire pleas i, Somerset Record Society 11 (1897), no. 88.

12

PR 8 John (1206), 178.

13

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 - hereafter Rot.Ob.Fin.), 543.

14

PR 9 John (1207), 176; PR 10 John (1208), 73, 188.

15

Palgrave, Rotuli Curiae Regis ii, 278.

16

E. de Haas and G.D.G. Hall (eds.), Early registers of writs, Selden Society 87 (1970), 66 (no. 109).

17

Curia Regis Rolls v, 180.

18

D.M. Stenton (ed.), Pleas before the king or his justices, 1198-1212, iv, Selden Society 84 (1967), no. 4200.

19

What follows is indebted to R.D. Groot, `The jury in private criminal prosecutions before 1215’, American Journal of Legal History 27 (1983), 113-41.

20

These issues are discussed by P.R. Hyams, Rancor & reconciliation in medieval England (Cornell, 2003), 175-83.

21

R.C. Van Caenegem (ed.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), ii no. 505.  See also F.W. Maitland (ed.), Pleas of the crown for the county of Gloucester ... 1221 (1884), no. 87, the case of a man appealed of wounding ,and following his defeat in a duel condemned to be blinded and castrated.

22

Rot.Ob.Fin., 244; PR 7 John (1205), 57.

23

Rot.Ob.Fin., 343; PR 8 John (1206), 178.

24

PR 5 John (1203), 104; Curia Regis Rolls iii, 1203-1205 (1926), 157.

25

M. Bateson, `A London municipal collection of the reign of John’, English Historical Review 17 (1902), 480-518, 707-30, at 721-2.

26

Glanvill, 171-2.

27

Curia Regis Rolls iii, 110.  A later example of a man appealed of homicide being remanded to custody until an inquest could be held is recorded in Curia Regis Rolls vi, 1210-1212 (1932), 137-8.

28

W.S. McKechnie, Magna Carta (2nd edn., Glasgow, 1914), 363;  T.D. Hardy (ed.), Rotuli litterarum patentium i: 1201-1216 (Record Commission, 1835), 76.

29

PR 10 John (1208), 21.

30

PR 14 John (1212), 86.

31

T.D. Hardy (ed.), Rotuli litterarum clausarum, 1201-1227, 2 vols. (Record Commission, 1833-4), i, 205-6.

32

The exception is discussed by S. Jenks, `The writ and the exception de odio et atia’, Journal of Legal History 23 (2002), 1-22.

33

D.M. Stenton (ed.), The earliest Lincolnshire assize rolls, A..D. 1202-1209, Lincolnshire Record Society 22 (1926), no. 607.

34

N.D. Hurnard, The king’s pardon for homicide before A.D. 1307 (Oxford, 1969), 25, 60, 76.

35

Details of this case from Curia Regis Rolls iii, 62-3, 202, 299; Curia Regis Rolls iv, 1205-1206 (1929), 37, 56-7, 83, 183, 226; Curia Regis Rolls v, 63, 183, 254; PR 5 John (1203), 184.

36

Curia Regis Rolls vi, 264-5.

37

F.W. Maitland (ed.), Select pleas of the crown i: A.D. 1200-1225, Selden Society I (1888 for 1887), no. 78.

38

Stenton, Pleas before the king or his justices iv, no. 3428.

39

Stenton, Earliest Lincolnshire assize rolls, no.1508.

40

Curia Regis Rolls iv, 216.

41

Curia Regis Rolls ii, 1201-1203 (1925), 15.

42

Stenton, Earliest Lincolnshire assize rolls, no. 594.

43

PR 10 John (1208), 68.

44

PR 7 Richard I (1195), 214-15.

45

Stenton, Pleas before the king or his justices iv, no. 3458.

46

D.M. Stenton (ed.), Pleas before the king or his justices, 1198-1202, ii, Selden Society 68 (1952), no. 393.

47

Palgrave, Rotuli Curiae Regis i, 57-8.

48

PR 10 John (1208), 73; Curia Regis Rolls v, 152.

49

Curia Regis Rolls vii, 1213-1215 (1935), 49-50.

50

PR 9 John (1207), 71.

51

PR 9 John (1207), 28; Curia Regis Rolls v, 47.

52

Curia Regis Rolls vi, 334-5.

53

ib., 206.

54

Hurnard, King’s pardon for homicide, 344-5


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Original Latin

XXXVII

Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per burgagium, et de alio terram teneat per servitium militare, nos non habebimus custodiam haeredis nec terrae suae quae est de feodo alterius, occasione illius feodifirmae, vel sokagii, vel burgagii; nec habebimus custodiam illius feodifirmae, vel sokagii, vel burgagii, nisi ipsa feodifirma debeat servitium militare. Nos non habebimus custodiam haeredis vel terrae alicujus, quam tenet de alio per servitium militare, occasione alicujus parvae sergenteriae quam tenet de nobis per servitium reddendi nobis cultellos, per sagittas, vel hujusmodi.

37

If anyone holds of us by fee-farm, socage or burgage, and holds of someone else by knight service, we will not have the wardship of his heir, or of the land which forms part of the other man’s fee, by reason of that fee-farm, socage or burgage; nor will we have the wardship of that fee-farm, socage or burgage, unless the fee-farm owes knight service. We will not have the wardship of the heir, or of anyone’s land which he holds of someone else by knight service, by reason of some petty serjeanty which he holds of us by the service of rendering us knives or arrows and the like.

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Commentary for academic researchers

Prerogative wardship

Clause 37 occurs in a sequence of clauses with few obvious connections between them, and was, indeed, so placed in Magna Carta as to separate two clauses which were linked.  For although both 36 and 38 were concerned with the administration of justice, Clause 37 was intended to remedy grievances arising from the king’s exploitation of aspects of his feudal supremacy. The complexity of the tenures whereby land was held in England had become a matter of remark by the early twelfth century,1 and certainly nothing had happened to disentangle them by 1215.  It is hardly an exaggeration to say that all land, free or unfree, was held in return for services of some kind, whether spiritual – the prayers required following a grant in frankalmoin, under which most ecclesiastical land was held – or unambiguously secular.  But although knight service was certainly the most important, and prestigious, of the tenures of free men, it was not the only one, and the relationship between them all was apt to become confused.  Clause 37 dealt with four other tenures, and attempted to prevent the king from taking undue advantage of the intricacies of feudal landholding through the exercise of what has come to be known as prerogative wardship. 

When a free landholder died leaving an underage heir, the custody of the latter’s person and inheritance, his wardship, became the responsibility of his lord, who could exercise it himself or grant it to a third party, usually at a price.  If the lord in question was the king, and the property one held `in chief’, that is, directly from the crown, then naturally the king claimed the wardship.  When, as often happened, a landowner held estates of more than one lord, it was customary, according to the legal treatise Glanvill, written late in the reign of Henry II, for the wardship of his heir to be given to his chief lord, that is, the lord from whom the dead man’s ancestors had held land first.2  But by 1215 Glanvill was becoming out of date, for by then it was increasingly usual for each lord of whom a deceased landowner had held an estate to receive the wardship of it during the minority of the heir, with only the custody of the heir’s person being entrusted to the chief lord.  There was one exception to this developing rule, however, namely the king, who as the pre-eminent lord (`the lord king can have no equal, much less a superior’, in Glanvill’s words) continued to enjoy the rights once possessed by all such superior lords.3 Under Henry II and his sons, neither the size of a property, nor the terms under which it had been held, were allowed to have any relevance to the king’s overriding right to this, his `prerogative wardship’, which as Clause 37 itself makes clear, was exploited to the utmost.  If a dead man had held any land at all directly from the crown, then not only it, but also any other lands he had held, became subject to royal control for as long as his heir’s minority lasted – all were treated as if they had been held in chief.  

Prerogative wardship thus entailed an intrusion of royal power into the lordships of others which resulted in their holders losing control of properties, and of opportunities for patronage, which they could otherwise have expected to enjoy.  Clause 37 did not attempt to abolish it entirely, but rather to curb its application and impose restraints upon the king’s exploitation of it.  However, this limited aim, together with the innate complexity of the issue, created problems for the drafters of Magna Carta, who seem to have found it hard to achieve a clear and succinct statement of their intentions, and it is evident that a fair amount of revision, and probably debate, was needed before a satisfactory text could be produced.  Clause 37 was the equivalent of Number 27 among the Articles of the Barons, and as it now stands, and has long been conventionally printed, both it and that article consist of a single consecutive piece of text.  But there are in fact some significant differences between them, in terms of both arrangement and content. 

 

Defining the issues

Both Article and Clause dealt with four types of free tenure – fee-farm, socage, burgage and serjeanty – as well as knight service.  Fee-farm, which entailed the straightforward payment of a monetary render, was not dissimilar to socage, which involved rents or payments in kind, both usually on a modest scale, while burgage was the characteristic tenure of the townsman, who similarly held his property for a monetary rent.  Serjeanty, however, involved tenure in return for particular services,4 which could be military, in an army or castle (this could bring it close to knight service), or administrative – the king’s hawking and hunting were largely managed by serjeants.  A number of curial offices were held by serjeanty, some of them largely ceremonial, for instance involving duties performed only at coronations, but others distinctly mundane, like the oversight of the court prostitutes, and the same was true of a whole range of relatively trivial tasks linked only by their involving a specified service to the king.  But despite the insignificance of some of the duties entailed upon serjeanty tenure, some of the greatest men in the realm held lands in this way, and it was probably the status which it could confer (and perhaps also the value of some of the estates involved), together with the barons’ acceptance that the king’s right to the wardship of serjeanty lands, unlike those of the other tenures concerned, could only be qualified, not annulled altogether, which was largely responsible for its being set apart from the other tenures.  In the surviving engrossments of the 1215 Charter,5 and also in the contemporary French vernacular translation,6 the sentence dealing with it was dealt with by itself, in a discrete clause dealing with serjeanty alone.

Clause 37 did more than separate its provision for serjeanty from that made for other tenures, however, for in both its parts it also amplified and clarified an article whose contents were often over-condensed and obscurely expressed. In its first sentence Clause 37 replaced the Article’s vague `wardship of the knights’ (custodiam militum) with a longer phrase spelling out that what was at issue was the wardship of the heir to land which its previous holder had held of another lord by knight service, and which had now become liable to seizure by the king because that holder had also held property directly from the crown by fee-farm, socage or burgage.  The Clause then went on to set out explicitly, as the Article had failed to do, that the king could only claim wardship of land held by fee-farm, socage or burgage if the property in question owed knight service as well.  (In its final statement this second restriction was seemingly restricted to fee-farm, but although it was not unknown for land to be held by fee-farm and knight service, it seems likely that socage and burgage were also understood as being comprehended within it.) 

Where serjeanty was concerned, the Clause again made it clear that the wardship of an heir, and of land held by knight service, was the issue involved, this time inhibiting the king’s use of his prerogative to occupy a dead man’s estate on the grounds that he had also held lands directly from the crown in return for some unimportant service.  Article 27 had made the beneficiary the `free man’, who was not to lose his militia `by reason of petty serjeanties’.  The implied association of personal freedom with knighthood can have served only to confuse, and was dropped in Magna Carta.  Instead it was spelt out that the provision was intended to benefit lords, while the generalised militia was replaced by the more precise servicium militare.  The two terms could be used as synonyms, as they were, for instance, in a lawsuit heard in the bench early in John’s reign.  Earl William de Warenne, suing for a wardship against the abbot of Bury St Edmunds in Easter term 1200, claimed that the youth’s father had held lands of himself per servicium militare; when the case was decided in Michaelmas term 1201, Warenne employed almost identical terms to describe the tenure, except that it was now said to have been per militiam.7   The employment of militia in the Article may well have been coloured by the word’s associations with knighthood, in the early thirteenth century increasingly a rank with aristocratic overtones rather than an essentially military occupation.  But when pleaders in the royal courts could use militia and servicium militare to mean the same thing, it seems reasonable to believe that the men who negotiated, and then drafted, Magna Carta also saw them in the same narrowly-focused light. 

Clause 37 served the interests of the tenants-in-chief by compelling the king to renounce the exercise of prerogative wardship over lands held from themselves, on the strength of their tenants’ having also held land from the crown by fee-farm, socage or burgage.  And it went on to deny the king the wardship of lands held from him by fee-farm (and, by extension, by socage and burgage as well), unless the terms of tenure specifically included knight-service, which thus became the basic criterion for the exercise of the king’s rights where this issue was concerned.   In imposing this last prohibition, the barons were in fact demanding that the king should observe what, in some cases at least, appears to have been already regarded as customary practice. In a lawsuit in which Henry III was a party, concluded in 1228 but referring back to the very end of John’s reign, William FitzRobert’s widow Lucy resisted the king’s claim to the wardship of her son on the grounds that the lands from which that claim derived, part of the Wiltshire manor of Upavon, had held been held by her husband in socage, and the king’s attorney accepted her arguments, acknowledging that until the heir came of age both he and the land should be in Lucy’s custody.8  The author of Glanvill had probably thought in much the same way –`The heirs of sokemen, on the death of their ancestors, will be in ward to their nearest blood relatives ...’.9    

Nor was this so only where socage tenure was concerned, for Glanvill stated unequivocally that burgage tenure did not provide grounds for the exercise of prerogative wardship – `only in the case of burgage tenure is the king not preferred to others in the matter of wardship.’10  However, there does not appear to have been an accepted convention on this issue, rather practice varied from borough to borough.11  In 1188 John himself, as count of Mortain, granted a charter to the men of Bristol which (among other privileges) prevented the lords of external fees from claiming the wardship of properties within the walls on the grounds that the tenants of the latter also held lands of them outside the town.12  The very fact of its being so explicitly granted suggests that this franchise was not in fact universally enjoyed, and although it was several times copied in Ireland,13 it appears to have been rarely granted in England (though the Cinque Ports may have been an exception to this rule).  Possibly the extension of Clause 37 to burgage tenure was a measure intended to win urban support, especially in London, in which case John’s charter for Dunwich, issued less than a month after Magna Carta, in which he granted that no-one should have the wardship of the children or lands of `our burgesses’ except such kinsmen or friends as they had appointed themselves, may have represented a royal counter-stroke.14

 

Complexities of tenure 

Considered as a unity, Clause 37 treated fee-farm, socage and burgage tenures separately from serjeanties, and set them all in contrast to knight service.  But in practice these tenures were not always easily distinguished from one another, for there were sometimes points at which they overlapped or even clashed, thereby creating opportunities for the king to enforce, and extend, what he regarded as his rights at the expense of tenants-in chief.  Examples of multiple tenure include the action between William de Warenne and the abbot of Bury St Edmunds cited above, over the wardship of a boy whose father was a sokeman of the abbot’s, but whose mother was the daughter and heir of a knight – proceedings ended with the earl being awarded `the custody of the boy and of the land which descends to him by knight service on his mother’s side.’15   A similar solution to the same problem was reached some twenty years later – in 1224 Thomas of Arundel, a Somerset landowner, successfully claimed the wardship of John son of Nicholas of Arundel, who may have been his nephew, on the grounds that Nicholas had held a knight’s fee of himself, but did not obtain that of the socage which the latter had also held, which had come to him through his wife and whose custody now reverted to the king.16 

But there were severer problems than that of deciding upon a wardship when more than one tenure was involved, because the tenures themselves could prove either uncertain or unstable.  In 1205 King John granted, or more likely confirmed, eleven and one third bovates in Bradley, Lincolnshire, to Denis the fletcher `our servant’, the lands to be held in return for a yearly farm of four marks (£2. 13s. 4d.).17  Either Denis then disposed of some lands and acquired others, or the terms on which he held some of them were altered, for by 1212 he was holding one and a third bovates `by service of arrows’, later defined as a yearly render of eleven arrows, while still paying four marks per annum for the remaining eleven, and was thus the tenant both by serjeanty and by fee-farm of different parts of the same property.18  Those parts, and the terms on which they were held, would appear to have remained separate thereafter, for in the early 1240s a Ralph of Bradley who was probably Denis’s grandson was recorded as holding a quarter both of Bradley and of nearby Laceby for a yearly payment of 38s. 8d., while one John of Cockerington held a third of Bradley as the tenant in serjeanty, rendering twenty arrows and four marks each year at the exchequer.   In 1232 Henry III had accepted a proffer of £20 marks for the wardship of Ralph’s father’s lands, describing them as both held at farm and as held `by the serjeanty of rendering arrows yearly’, but had to cancel the agreement when Ralph’s widow (who may have been Denis’s daughter) established her own right to the property, as her husband’s next heir.  By this time it was probably becoming hard to tell who held which lands and on what terms.  

Alterations to tenure were sometimes explicitly made.  In 1201 Roger la Veile, who held lands at Fishley and elsewhere in Norfolk (and also in Normandy) as one of the king’s falconers, obtained a royal charter changing the terms of his tenure from serjeanty into a quarter of a knight’s fee.19  Five years later, angered by Roger’s failure to obey an order concerning the custody of a minor, John reversed his own charter, `because we do not want that service to be abandoned, notwithstanding any charter which he has of us concerning knight service’20 (this command does not appear to have taken effect, however, since in 1212 Roger was recorded as still holding all his lands by knight service).21  Tenure by knight service could confer status, which may explain the payment of £40 which William de Moreston, a Kentish landowner, was willing to make in 1199 for holding his lands for one knight’s fee instead of for a yearly fee-farm of 50s. (thereafter he contributed to every scutage of John’s reign – the fact that this would have cost him less than his original fee-farm suggests a further explanation for his initial proffer, especially as he cannot have foreseen how many scutages John would subsequently demand),22 and the proffer of fifty marks (£26. 13s. 4d.) which Ralph FitzPeter, a Northumberland man, made a year later `for having his land by the service of one knight’s fee which he is accustomed to hold by a forest serjeanty’.23  But changes could also be made in the opposite direction, for in 1212 it was recorded that Robert le Napier, who had held a fee at Pishill, Oxfordshire, by right of his wife, had been pardoned his knight service by King John, and was instead required to present a table-cloth (or its value, estimated at 3s.) at the exchequer every Michaelmas.24  The change, which was probably made early in John’s reign, seems to have caused some confusion, for Robert not only performed the new service (in 1219 specifically defined as a serjeanty),25 but he was also charged with paying scutage on his former one, and at least once did so.26

The distinction between knight service and both socage and serjeanty tenure could be unclear, and indeed, in one case seems to have been deliberately blurred, when in 1204 Roger de Sumerville gave sixty marks and two palfreys (in effect £46. 13s. 4d.) to hold the Staffordshire manor of Alrewas by fee-farm for a total of £15 per annum, and also by the service of a quarter of a knight’s fee.27  Perhaps John imposed the extra service to enable him to make additional demands upon Roger and his descendants in future – the addition would have deprived them of the protection which Clause 37 was designed to provide for those who held lands of the crown by fee-farm but not by knight service.  The sort of complications which could result from a double tenure are shown by the action of dower which William Curnes and his wife Christian, formerly the wife of William FitzHervey, brought in 1206 against Thomas of Bircham, his wife and the latter’s sister for half of 180 acres of land in Bircham and other places in Norfolk.  The defendants argued that the claim to half the property should be barred because it was held as knight’s fee, for which a third constituted the appropriate proportion, but since the court was unable to say whether the land was knight’s fee or socage, the sheriff had to be instructed to find out.  In due course he reported that William FitzHervey had held his land by both tenures, with the result that William Curnes and his wife were granted the latter’s dower in different proportions, a half from the land held in socage, and a third from that held by knight service.28  The permeability of the line between knight service and serjeanty tenure, especially (though not only) when the latter involved military service, was demonstrated by the numerous occasions on which scutage was levied on holdings by serjeanty, particularly in the early years of John’s reign.  At least one man objected.  In 1204 Walter of Marden, the holder of two virgates in Herefordshire, for which he was required to pay one mark in scutage, gave 20s. for an inquest `whether he holds his land by serjeanty or by knight service’.  Investigations under the direction of the justiciar found that Walter was one of several men who held their land by the serjeanty of taking the king’s treasure twice each year to London, and he received quittance of scutage accordingly.29

Despite, or perhaps because of, such opportunities for confusion, Clause 37 was careful to distinguish between the various free tenures.  In what in modern editions has become its second section it also distinguished between serjeanties, to make it clear that some were of greater consequence than others, and that the restrictions placed on prerogative wardship were only to apply to the less important ones.  To derive later distinctions between `grand’ and `petty’ serjeanties from Clause 37 is anachronistic, for in 1215 (and long afterwards) it was the value of the property which mattered, rather than the eminence of the service, as later became the case.30  But it is significant that any distinction was made at all, as did not happen with fee-farm, socage and burgage.  Where those tenures were concerned, Clause 37 laid down that prerogative wardship was not to apply unless the man who held the relevant tenements also held lands owing knight service directly from the crown (like Roger de Sumerville after 1204).  The separation of `small’ serjeanties from the rest reflected the acceptance by the barons of the king’s right to prerogative wardship in this tenurial area, and thus their own reluctance to do more than prevent its inordinate exploitation.  By the time the legal treatise Bracton was composed in the late 1220s, a serjeanty was reckoned, `according to some’, to be large if the lands for which it was held were worth more than 100s.,31 a relatively low figure which must have exposed at least as many serjeanties to royal claims as it excluded from them, and one considerably less than many holdings by fee-farm, in particular.

 

Exploitation

The nature, and deficiencies, of the sources are such that clear evidence for abuse, or even exercise, of prerogative wardship is very hard to find.  But there are certainly cases where it may be suspected.  Inquests held into wards and widows in 1185 included one in Hertfordshire into the lands of Robert of Abinger.  He had held estates at Wallington and Clothall, near Baldock, probably as a sub-tenant of the count of Brittany, but he was also said to have held a single acre from the king at Mitcham, Surrey – `and because of that acre his entire holding was taken into the hand of the lord king together with his heir, who is a leper ...’.32  Robert’s acre in Mitcham cannot be identified with certainty, but it may well have been one of the twelve acres which William of Walton was described as holding there in 1219 in return for a farm of 12d. per annum.33  The age of Robert’s heir is not given, and it is possible that his land was taken into the king’s hand because of his sickness rather than his minority.  But since the disabilities of lepers were such as to give them a status in law closely resembling that of minors, the king’s interest was much the same whatever the details of the case, demonstrating how the alertness of the king’s agents to their master’s interests, their readiness to take action on the basis of even the smallest holding, made prerogative wardship something to be feared.  Abbot Samson of Bury St Edmunds was well aware of the danger.  In c. 1190, when disputing Adam of Cockfield’s right to inherit the abbey’s half-hundred of Cosford, he told Adam roundly that `If you, who claim a hereditary interest in this hundred, should marry a free woman with a holding of as much as one acre directly from the king, then after your death the king would take all your estate and the guardianship of your son, if he should be under age, and so the king’s bailiffs would enter St Edmund’s hundred, which would be injurious to the abbot’s rights ...’.34

The abbot’s response to Adam of Cockfield constitutes a reminder that Clause 37 was intended to protect the interests of lords, and that the exploitation of tenants through prerogative wardship was a secondary matter, although barons who were also the mesne tenants of other magnates would doubtless have been glad to be spared the king’s attentions when he contrived to exercise his rights in this way.  King John himself was clearly well aware of the advantages which prerogative wardship gave him, as he showed when he decided to forego them.  On 18 March 1208 he not only confirmed Earl William Marshal in the lordship of Leinster, but also granted him the wardship of his own fees, even when their lords were also tenants-in-chief of the crown, a circumstance which would usually have placed at his own disposal all the lands of any who died leaving minors as their heirs.35  Two days later he provided a clear illustration of the possible consequences of prerogative wardship for those who held lands by serjeanty, when in another charter for William Marshal he promised that the marriage of the earl’s tenant Michael de Columbariis to the daughter (probably named Avice) of Elias Croc, `who holds of us in serjeanty’, would not be to his detriment with regard to either the wardship or the marriage of any heir born to Michael and his wife.36  Michael himself paid 200 marks (£133. 6s. 8d.) for the marriage,37 a sum explicable by the fact that although in 1212 Elias was said to hold only one virgate in Andover by serjeanty (one involving service in the royal forest), evidence from that and later years shows that his estates in Hampshire and Wiltshire also included three fees held of the abbot of Hyde in Collingbourne, Winterbourne and Chute, together with fractions of fees at Barford St Martin and Zeals held of William Marshal.38  But for John’s charter, all would have been seized in the king’s name had Michael de Columbariis died leaving an under-age heir.  Such a child might well have been the loser as a result, while William Marshal would certainly have been.  

By the early thirteenth century once-unified estates had so regularly become fragmented that it is practically impossible to be sure that men who held lands by serjeanty or some other free tenure were not also tenants-in-chief, and therefore exposed to the consequences of prerogative wardship, by virtue of their having held what might have been only a minute fraction of a knight’s fee.  But Clause 37 stands as evidence that the king exploited his right on occasions when no such tenancy existed, and a case from 1206 provides an imperfect example of the possibilities it afforded.  In 1206 Richard le Fleming (a follower of John before 1199 who served as sheriff of Cornwall from 1200 to 1202) proffered 600 marks and six palfreys (in effect £420) for the wardship of the lands and heir of Richard de Grenville, and for the marriages of the heir (another Richard) and his mother.39  A marginal note records that the Grenville lands were situated in nine counties, but in only one of them, Oxfordshire, can Richard be said with confidence to have been a tenant-in-chief, and that was because he held two hides by the service of bringing the king his dinner when he hunted in Wychwood Forest.40  As lords of Bideford the Grenvilles were powerful figures in Devon, but they held their lands there, and seemingly also in Suffolk, from the honour of Gloucester,41 as they held other estates in the south west from barons of that region.  It must be possible that Richard de Grenville held some other small estate in chief which made all his lands liable to seizure at his death, but to outward appearances he was an example of a man whose wealth and importance derived from his having been a mesne tenant on a large scale, holding his estates of other lords.42  The example is imperfect because between 1199 and 1214 the honour of Gloucester was in the hands of King John, in the right of his first wife Isabella, and so all who held land of it were tenants-in-chief during those years.  But it can at least be suggested that the price which John was able to demand for the custody of the Grenville lands gives some idea of how valuable prerogative wardship could be to him, just as the nature of the serjeanty which apparently enabled him to take possession of them helps to explain why the barons resented its exercise through such means and sought to control it.

 

The inquests of 1212

In stoking that resentment, and inculcating a widespread fear of prerogative wardship among free landowners, the wide-ranging inquests of 1212 probably had a crucial impact.43  They were not entirely without precedent, notably in the investigations of serjeanties carried out in 1198, intended to ensure that serjeants, like knights, made an appropriate contribution to Richard I’s campaigns in Normandy.44  But although these led to the articles of the eyre including one `De sergentariis domini regis’, they were limited in their scope compared with the inquests of 1212.  The latter were conducted under a writ issued on 1 June, demanding from each sheriff information `concerning all knights’ fees and all kinds of tenements inside or outside boroughs which are held of us in chief in your bailiwick by knight service or by any kind of serjeanty, and who holds them, and by what service ...’.45  The inquests were never completed, and their overall results were both more and less than the writ demanded.  The latter, despite its stress on property inside, as well as outside, boroughs, did not specifically mention burgage holdings, and such information as was provided about urban tenures was usually supplied in a very generalised form – of Southampton, for instance, it was presented simply that the whole town was royal demesne, and everyone living in it had been enfeoffed by the king’s ancestors.46  Only for Wallingford (a royal lordship) were full details given, with a whole roll being devoted to `the inquest held into the tenements and lands of the borough of Wallingford and what services the kings of England are wont to have from it and now have nothing’.47  Probably much depended on local initiatives, on the understanding of their task by the commissioners conducting the inquests, and on the conditions prevailing in individual cities and towns.  But even if the inquests had been intended to obtain information concerning burgage tenements, the unconstrained disposal of their properties which the inhabitants of English boroughs were by now accustomed to enjoy probably made it impossible for officials to keep track of them, helping to explain why little was returned concerning them.

The inquests of 1212 were much more informative about other free tenures, however, in some cases more so than the king’s instructions required.  This is particularly apparent in the returns for Staffordshire, whose sheriff, Thomas of Erdington, was a trusted royal agent.  These were set out under four headings, dealing successively with those who held by knight service, then serjeants, thirdly the holders of the king’s demesnes, in effect fee-farm tenants, and finally sokemen.48  The king’s writ had made no more mention of fee-farm and socage tenants than it did of holders by burgage, but quite as much as the knights and serjeants they were men of local or even national standing – as well as members of a number of important midlands families, they included the abbot of Bordesley and even the king’s half-brother, the earl of Salisbury, who held three demesne manors which had previously contributed to the county farm.  Burgage tenants apart, the Staffordshire inquests covered every kind of free landholder, and thus a large proportion of the free men to whom Magna Carta was granted three years later.  The inquests in other shires were less wide-ranging, but still yielded much information about lands held by knight service and by serjeanty, which were investigated, and recorded, in equal detail. 

In the present context the details of serjeanties were of particular significance.  The importance of serjeanties to the drafters of Magna Carta is shown by their having had what was originally a separate clause devoted to them, a fact which in itself makes it likely that John often manipulated them to his own advantage.  From the king’s point of view, indeed, the more he knew about serjeanties and their holders, the greater was likely to be his ability to exploit them, not only through direct control and oversight of their holders and the services they gave, but also through the opportunities which increased knowledge was likely to bring him for making use of his prerogative wardship at the expense of other lords who had serjeanty-holders among their tenants.  It should be observed, however, that although the 1212 inquests were also intended to investigate alienations of lands, whether held by knight service or serjeanty, `whereby less may be held of us in chief’, their findings were relatively unimportant in the present context.  As long as a serjeanty existed, the property attached to it could become only a fraction of what it had once been, but the king could still claim the wardship of all the lands of its holder at his death, no matter whose lordships he had held them from.

The range and number of serjeanties was wide.  Many were military, and so close to knight service, while forestry serjeanties were numerous, especially in counties like Hampshire and Wiltshire, where the forests themselves proliferated.  Some were ceremonial, while many can only be described as miscellaneous, whether it was Richard Robbe holding Steart in Somerset in return for a crane (the bird was later recorded as being delivered every year at Michaelmas),49 or Ralph of East Carlton and William FitzJohn, who together held thirty acres of land in East Carlton, Norfolk, `by the service of carrying pasties of the first herring to the lord king wherever he shall be found in England’,50 or Reginald of Colwick, Nottinghamshire, holding one carucate of land in Colwick itself by the service of providing the king with twelve arrows once a year when he came to Nottingham, and a third of a carucate in Willoughby on the Wolds for which he must supply a riding horse and a sack when the king invaded Wales,51 or Richard of Eldersfield, Worcestershire, who in return for a hide of land there was required to serve in red boots on Christmas Day.52  All these tenures, and perhaps above all that of Seled the smith of Derby, recorded as holding a messuage in that town `of the gift of the lord King John while he was count, and for it he renders to the king two knives yearly’,53 could have been in the minds of the drafters of Clause 37, and with good reason, for however trifling the services, all who performed them held the lands which went with them as tenants-in-chief of the crown, which in turn meant that any other lands they held, along with the rights of their immediate lords in them, were exposed to the demands implicit in the king’s prerogative wardship. 

 

Royal persistence, baronial resentment

It is impossible to say for certain whether the inquests of 1212 did in fact lead to an intensification of John’s claims to the wardships of tenants by serjeanty and other free landowners.  The same difficulties as before apply, compounded by the disappearance of the 1213 pipe roll.  But it can at least be suggested that John continued to exploit his right to prerogative wardship where he could.  In July 1213 Emma Luvel proffered sixty marks and a palfrey to have the custody of the lands of her two deceased husbands, William and Angerus, and the wardship of her son.54  A marginal note indicates that the lands in question lay in Berkshire and Northamptonshire, but although Emma was subsequently recorded as holding property worth 50s. from the king at Benham Lovell in the former county,55 there is no evidence that she was a tenant-in-chief in the latter shire, where any lands she held must therefore have come to be at the king’s disposal because both her husbands had been royal huntsmen, performing their duties at Freemantle in the north of Hampshire.  The inheritance of Andrew Moberd in Hampshire and Wiltshire may have been treated similarly.  On 28 July 1213 his son Walter proffered thirty marks and a palfrey for the lands held by his father, consisting of estates at Langford in Wiltshire and at Ropley and Avon in Hampshire.56  All, as recorded, were held by serjeanty (it is unclear if there were two serjeanties or one, but the latter seems likeliest – it was a military one, involving the provision of a serjeant with a hauberk for forty days in England).57  Andrew was a man of local standing, who served as a knight of the grand assize in both of the counties in which he held lands58 and was employed to oversee works on Clarendon Palace,59 and was wealthy enough to be charged with twenty marks for scutage in 1210 and to pay it within a year.60  It seems unlikely that the lands attached to his serjeanty were all that he held, or that his son paid to inherit (Walter had cleared his debt by Michaelmas 1214), and therefore more probable that, as with Emma Luvel, other properties, not held in chief, had also fallen into the hands of the king, whose prerogative wardship was thus exercised at the expense of the lords from whom Andrew and Emma held their other estates.

Such cases help to explain why prerogative wardship aroused sufficient resentment to bring it within the purview of Magna Carta.  The evidence is too meagre and imprecise for it to be possible to quantify the king’s fiscal gains from it, though the case of Richard de Grenville suggests that they could have been considerable.  However, financial profit was probably only part of its importance.  The inquests of 1212, and the precise information they provided, no doubt raised the prospect of more and heavier demands arising from the exercise of prerogative wardship.  But the barons who resisted it in 1215 must also have been aware of, and resistant to, the opportunities which it gave the king for an invasive use of patronage, whereby he could weaken the authority of lords he distrusted by inserting his own men into crevices which the wardships of under-tenants could open up within baronial power-structures – lands which magnates had hitherto treated as held of themselves, and at their own disposal, might suddenly come to be held, for anything up to twenty-one years, by men nominated by King John. 

Both financial and political considerations help to account both for John’s evident determination to preserve his right to prerogative wardship and for the hostility of the barons towards it.  Even more than in Clause 37 that hostility comes out in Clause 53, which was agreed upon at Runnymede in a late stage in the negotiations, and suggests a determination on the part of at least some of the barons to re-open the whole issue, and, indeed, to do so on much broader terms than those of Clause 37. Because there was no corresponding clause among the Articles of the Barons, and nothing else in Magna Carta besides Clause 37 dealt with this issue, it is impossible to be sure exactly what this late addition, which was referred to only in passing, was intended to achieve, and how it would have stood in relation to Clause 37.  But it can at least be said that it contained no refinement of detail concerning feefarms, socages, burgages and the smallness of sergeanties. Rather, since its terms of reference were `wardships of lands which are part of another’s fee, wardships which up till now we have had by reason of a fee which someone held of us by knight service ...’, its target seems to have been the whole practice of prerogative wardship, and the way it could affect relations between lords and men in the upper echelons of society.  Clause 37 accepted the king’s right to prerogative wardship, but the relevant sentences in Clause 53 would have made it almost meaningless.  This was too much for the king, and perhaps also for some of the more traditionally-minded barons, and John was able to have the implementation of the whole of Clause 53 delayed on the strength of his promise to go on crusade.  Taken on 4 March 1215, in accordance with usual practice this gave him the crusader’s privilege of three years’ secure possession of whatever he held when he took his vow.  It is a sign of the issue’s importance, and of the feelings it raised, however, that Clause 37 was allowed no such indulgence.

 

1

R.W. Southern, Medieval humanism and other studies (Blackwell, Oxford, 1970), 229.

2

G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 84

3

On this issue I have followed the arguments (and also the revised translation of the relevant passage in Glanvill) of S.F.C. Milsom, `The origin of prerogative wardship’, G. Garnett and J. Hudson (eds.), Law and government in medieval England and Normandy: essays in honour of Sir James Holt (Cambridge, 1994), 223-244.

4

For serjeanty in general the standard analysis remains that of E.G. Kimball, Serjeanty tenure in medieval England (New Haven, Connecticut, 1936).

5

D. Carpenter, Magna Carta (2015), 354-5.

6

J.C. Holt, Magna Carta and medieval government (1985), 253.

7

F. Palgrave, Rotuli curiae regis, 2 vols (Record Commission, 1835), ii, 253-4; Curia Regis Rolls ii, 3-5 John, 1201-1203 (1925), 25-6. It is principally with this case in mind that I differ from Carpenter, loc.cit. n. 5 above, where the militia of Article 27 is interpreted as meaning `privileges of knighthood’ – I see the Article, as well as the Clause, as having been concerned with tenure, not status.

8

Curia Regis Rolls xiii, 11-14 Henry III, 1227-1230 (1959), no. 1168 (p. 258).

9

Glanvill, 84.

10

Glanvill, loc.cit.

11

M.de W. Hemmeon, Burgage tenure in medieval England, Harvard Historical Studies 20 (Cambridge, Massachusetts, 1914), 15-16.

12

N.D. Harding (ed.), Bristol Charters, 1155-1373, Bristol Record Society 1 (1930), 8-13, at 10-11

13

M. Bateson (ed.), Borough customs ii, Selden Society 21 (1906), 145 n.2

14

T.D. Hardy (ed.), Rotuli chartarum 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 211.

15

Curia Regis Rolls ii, 25-6.

16

Curia Regis Rolls xi, 7-8 Henry III, 1223-1224 (1955), no. 2476 (p. 491).

17

Rot.Chart., 142.

18

Liber feodorum. The book of fees commonly called Testa de Nevill, 2 vols. in 3 (1920-31), i, 159.

19

Rot.Chart., 93.

20

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 63.

21

Book of fees i, 130.

22

PR 1 John (1199), 68; Book of fees i, 13.

23

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 63; PR 2 John (1200), 6.

24

Book of fees i, 117.

25

Ib., 252.

26

PR 9 John (1207), 188.

27

PR 6 John (1204), 211; Rot.Chart., 133.

28

Curia Regis Rolls iv, 7-8 John, 1205-1206 (1929), 275.

29

PR 6 John (1204), 17, 19; Book of fees i, 101.

30

The issue is discussed by Kimball, Serjeanty tenure, esp. 151-70.

31

S.E. Thorne (ed. and trans.), Bracton on the laws and customs of England ii (Cambridge, Massachusetts, 1968), ii, 254.

32

J.H. Round (ed.), Rotuli de dominabus et pueris et puellis de xii comitatibus [1185], Pipe Roll Society 35 (1913), 66-7.

33

Book of fees i, 274.

34

Jocelin of Brakelond, Chronicle of the abbey of Bury St Edmunds, trans. D. Greenway and J. Sayers (Oxford, 1989), 52-3.

35

Rot.Chart., 176.

36

Rot.Chart. loc.cit. above.

37

Rot.Ob.Fin., 409; PR 9 John (1207), 149. The debt was cleared by Michaelmas 1210.

38

Details from Book of fees i, 47, 74-5; ii, 717, 722. The holdings of Avice de Columbariis from the earls of Salisbury and Gloucester will once have formed part of the Marshal estates.

39

Rot.Ob.Fin., 362. The debt was paid by Michaelmas 1210.

40

Book of fees i, 103.

41

Book of fees ii, 778; H. Hall (ed.), The red book of the exchequer, 3 vols. (Rolls Series, 1896), ii, 479.

42

Cf. J.C. Holt, The northerners: a study in the reign of King John (Oxford, 1961), 55-6, commenting on the importance of Simon of Kyme, who `held approximately thirty fees. Of these, two, at the most, were held of the Crown. The rest were held of twelve different baronies ...’.

43

Discussed by S. Painter, the reign of King John (Baltimore, 1949), 208-11, and Carpenter, Magna Carta, 277.

44

Book of fees i, 4-13; W. Stubbs (ed.), Chronica Magistri Rogeri de Houeden, 4 vols. (Rolls Series, 1868-71), iv, 46-7, 61-2.

45

Book of fees i, 52.

46

Ib., 76.

47

Ib., 109-116.

48

Ib., 141-3.

49

Ib., 79, 261.

50

Ib., 128.

51

Ib., 148, 374.

52

Ib., 139.

53

Ib., 151.

54

Rot.Ob.Fin., 474.

55

Book of fees i, 254.

56

Rot.Ob.Fin., 477-8.

57

Book of Fees i, 75.

58

Curia Regis Rolls ii, 76; Curia Regis Rolls v, 8-10 John, 1207-1209 (1931), 38.

59

PR 2 John (1200), 162; PR 4 John (1204), 124.

60

PR 12 John (1210), 81.

Referenced in

John moves toward the March (The Itinerary of King John)


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Original Latin

XXXVIII

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

38

No bailiff is in future to put anyone to law by his accusation alone, without trustworthy witnesses being brought in for this.


showhide
Original Latin

XXXIX

Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae.

39

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

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Commentary for academic researchers

Origins and purpose

Clause 39 of Magna Carta made a succinct first appearance in the so-called `Unknown Charter’, which probably represented points for discussion, and occasional agreement, between the king and his adversaries in the early months of 1215.1  The first clause of that document brings together the substance of Clauses 39 and 40 in a concise declaration that `King John grants that he is not to arrest a man without judgment, nor to take anything for justice, nor to perpetrate injustice.’  By the time the Articles of the Barons had been drawn up, most likely a few days before 15 June 1215, that single sentence had been expanded into two discrete clauses, with its first section enlarged from nine words to the thirty-four of Article 29.  Except in omitting the word vi (`with force’) from its bars upon royal actions, Clause 39 followed that article in the ground it covered, but – with a stylistic incongruity which is found in many of the Charter’s clauses – changed from an impersonal prohibition to a personal disclaimer half way through its length, when after six of the ways in which a free man could be punished or harassed had been individually forbidden, the king himself, speaking in the first person plural, promised not to employ any additional form of violence, before the clause ended in an undertaking not to proceed in the ways forbidden except by due form of law. 

 

The position of Clauses 39 and 40 in Magna Carta (matching that of their equivalents among the Articles) is not easily accounted for.  They might reasonably have been expected to come first, like their originator in the `Unknown Charter’.  They have always attracted the attention of later generations, and it is inconceivable that the barons in 1215 did not regard the issues confronted by them as being of the first importance, but they did not give them numerical priority, preferring instead to start with the freedom of the church and then to work their way through the abuses they wished to remedy, sometimes, indeed, bringing them together in groups linked by topic, but ultimately without any obvious concern for ordering in terms of either importance or thematic consistency.  Clause 38 in the Charter, controlling the way in which bailiffs could legitimately bring people to trial, raises expectations of a sequence of enactments concerned with the administration of justice which are hardly fulfilled, since the clauses immediately following Clauses 39 and 40 are concerned with such issues as freedom of movement for merchants, tenants on escheated honours, and summonses to forest eyres.  Moreover, the clause ordering the restitution of property to those unlawfully deprived of it, which could logically have followed Clause 39, is instead placed fifty-second in the Charter (among the Articles this had been number 25, where it was at least somewhat nearer to the injustice it aimed to rectify). 

 

Clauses 39 and 40 have been criticised for their broad and general character,2 and it is possible that efforts to make them more precise delayed their formulation and led to their being allotted a later place in both Articles and Charter than they might otherwise have occupied.  Be that as it may, the criticism seems less than fair.  They were probably as exact as was possible in the circumstances, given that justice took many forms and injustice more still.  Clause 39 listed the ways in which the king and his agents had been accustomed to attack, plunder and impose upon free men, and forbade them to act thus in future except in those circumstances which, as defined in the Charter, could alone give them legitimacy. 

 

Clause 39 of Magna Carta was restating a universally accepted principle when it declared that no action detrimental to a free man’s life, limb or property was to be taken without a prior judgment in a lawfully constituted court (which could be a church court when ecclesiastical property was at issue – in 1205 Nigel de Luvetot paid fifteen marks to have the king remove the men occupying Spofforth church, `and that he will not allow him to be deprived of it except by judgment of a lay court or Court Christian’).3  It is the conclusion of the clause, forbidding royal action against any free man except by `the lawful judgment of his peers or by the law of the land’, which has prompted most scholarly discussion.4  There seem to be no reasonable grounds for doubting that the Latin vel, though capable of being idiomatically translated as `and’, should here be understood as meaning `or’ – that is how the contemporary translator of the Charter into French understood it, when he chose to render vel as `o’ rather than `e’, forms of `or’ and `and’ which he used throughout his text.5  But the presentation of judgment and law as alternatives, which to present-day eyes appears to be making a distinction between verdict and sentence, is arguably more apparent than real.  The text is in fact speaking of judgment rather than proof, but the two formed inseparable parts of a single process, and Clause 39 must have been concerned with both.  In ordinary circumstances a court gave a first judgment as to the means of proof whereby the truth was to be established, and then once the proof had been made (or had not been made) delivered a further judgment as to how the case should be concluded. 

 

The voice of a court, whether of a county, a hundred or an honour, was traditionally that of its suitors, who owed attendance – suit – there because this particular responsibility had come to be entailed upon their landed holdings, and whose duties included making the judgments of the court concerned.6  Just as some holdings were larger than others, so some suitors enjoyed greater wealth and higher status than others, and played a more prominent role in the affairs of the court.  But overall it can be said that all the suitors were landowners of like rank to a free litigant’s own, and that when they agreed upon a judgment on the latter they did so as his equals, his pares.  That this was a man’s entitlement was a long-established principle, on the continent as well as in England.  The early twelfth-century Leges Henrici Primi declared that `Each person is to be judged by men who are of equal status and from the same district as himself’,7 and it was in that sense that grantors of charters sometimes referred to their peers when they recorded gifts of land,8 and that Roger Bigod, earl of Norfolk, paid 1000 marks in 1190 `for his county of Norfolk, and that his brother Hugh may not be put in seisin of any of the lands which were his father’s unless by judgment of the king’s court made by his peers’.9  Those peers would have been Roger’s, not Hugh’s – unlikely to have entrusted a decision concerning his inheritance to the equals of his illegitimate half-brother, the earl will have used the term in the same sense as Clause 21 of Magna Carta, to signify men of his own high standing.

 

Judgment of peers was not the same as a jury’s verdict, as a proffer made in 1206 shows; Alan of Beadlum, a minor Yorkshire landowner, was prepared to give a palfrey, conventionally valued at five marks (3. 6s. 8d.), `not to be disseised on account of any inquest unless by the judgment and decision of the king’s court’10 – the finding of the inquest was not by itself to be sufficient to cause Alan to lose his land, only the decision of the court consequent upon its finding could do that.  Even so, the jury’s verdict was moving in that direction, in that the recognition, of twelve free and lawful men of the neighbourhood, which had been brought into ever-increasing use by Henry II’s assizes, could easily be equated with judgment of peers. But there were several other modes of proof available at the time that Magna Carta was drawn up, for instance ordeal, compurgators or battle (which might themselves be reinforced by charters, witnesses or oaths), and each of these constituted legal process in English courts, along with the recognition, and could lawfully be awarded as the touchstone of truth in proceedings involving the free men to whom Clause 39’s benefits were specifically confined. 

 

Beneficiaries: the magnates

Clause 39 was in effect upholding customary practice where legal process was concerned, and doing so specifically on behalf of all free men.  But although it was not composed for the sole benefit of the magnates, the latter certainly had a particularly keen interest in its inclusion in Magna Carta.  Their relations with any king often turned on matters of property, and of the rank and standing associated with it, but when such issues arose they were seldom determined according to legal criteria alone.  The king had to do justice to his greatest subjects, lay and ecclesiastical, but he had interests of his own to maintain, which could not always be upheld according to the strict letter of the law.  He had to establish and preserve in his realm a balance of power which tilted in his own direction, and his control of the courts provided him with an important means to this end.  Law could be an instrument of patronage, of the bestowing and withholding of favours, which if skilfully handled would not drive men into opposition, or even rebellion, but could still be manipulated, in Sir Richard Southern’s words, `to reward those who mattered, and to ensure that those who were not rewarded continued not to matter.’11  The result might indeed be compromises which pleased nobody and judgments which offended the losers without necessarily satisfying the winners, but the association of politics with law, as with anything else, could no more be depended upon to produce a tidy outcome in the twelfth century than in any other period.  What mattered, from the king’s point of view, was his ability to variously advance the men he trusted, fend off those he did not, and play upon the hopes and fears of both in such a way as enabled him to retain their loyalty, or at any rate frustrate their disloyalty.

 

From the magnates’ point of view, of course, the use of law as an instrument of patronage could easily entail what they saw as rank injustice, especially for those who did not enjoy the king’s favour.  Indeed they were all the more likely to regard the working of the courts in which they appeared as litigants with a prejudicial eye because by 1215 they were increasingly controlled by the king and by his supporters and agents.  John himself frequently presided in the court coram rege; proceedings in the common bench were overseen by professional justices who had been chosen by the king and were expected to uphold his interests; the eyre in its nationwide ramifications was largely administered by justices from the common bench; and the exchequer, when it functioned as a court, did so under close royal supervision.  Earls and barons did sometimes act as barons of the exchequer, and in a very few cases as justices in eyre, while in 1201 John’s dispute with Archbishop Geoffrey was resolved `by the decision of four bishops and four barons, chosen on behalf of the king and the archbishop’,12 but such involvement of magnates in judicial, or quasi-judicial, business was rare.  They may have wanted a greater role in the business of the courts, at least where their own interests were at stake, and it may in fact have been expected that they should have it.  An early thirteenth-century interpolation in the Leges Edwardi Confessoris maintained that it was the king’s duty `to maintain justice by the counsel of the chief men (procerum) of his kingdom’.13 

 

By the time of John’s accession, however, decisions in the king’s courts had long ceased to be made by suitors, however defined (that was a development of Henry II’s reign), but rather were made by the king himself, by his servants and confidants, and by justices who were seldom of more than knightly rank and whose increasingly recondite expertise may well have been regarded with some suspicion by the magnates.  It was thus easy for the disappointed or disgruntled to regard the workings of the courts as no more than an extension of a system of government which was already centred upon the royal household, and controlled by the king’s chosen agents, his familiares.  The affairs of bishops, earls and barons had come to be determined by men who owed such power and wealth as they enjoyed primarily to royal favour, men who might be foreigners like Peter des Roches, or of comparatively, or actually, humble origins like William Brewer and Richard Marsh, all three of whom were prominent in John’s service in the last years of his reign.  Simon of Pattishall, who was born into a family of Northamptonshire freeholders of no great standing and became the senior justice in the Westminster courts, was also unmistakably a royal servant, who might be called upon to fulfil financial as well as judicial responsibilities for the king,14 and the same was normally true of his professional colleagues.  A small number of justices, Pattishall himself among them, may have faltered in their allegiance at the end of John’s reign, perhaps under political pressure, possibly because they had come to find the king’s methods of government objectionable.15  But such disaffection was very unusual, and remained so for centuries, and as a rule the monarch expected, and received, the full support of the judicial bench.

 

Clause 39’s demand for due process in the form of judgment of peers (which was not mentioned in the `Unknown Charter’) did not favour the magnates at the expense of other free men, who were no less entitled to it, any more than it denied a magnate recourse to alternative forms of proof – William Marshal, earl of Pembroke, arguably the king’s greatest subject by 1215, had ten years earlier offered to disprove allegations of unfaithfulness to the king by battle, though none of his enemies was brave enough to accept the challenge.16  All the same, the safeguards provided by Clause 39 were especially important for the tenants-in-chief, for whom the king’s courts were their natural recourse, whether in their dealings with lesser men, with each other, or with the king himself.  For the last, as J.C. Holt has shown, they were potentially at a perpetual disadvantage, in that the impossibility of litigating against the king using writs which the king himself provided prevented their taking advantage of new forms of action designed to remedy exactly the forms of injustice which they were most likely to suffer at the king’s hands.  And if they were dispossessed of lands by royal agents, the action of novel disseisin, designed to restore possession to a man found to have been disseised `unjustly and without judgment’, was not available to them.17 

 

The king was the source of justice, according to some currents of thought the very embodiment of law, lex animata.18  Barons and bishops could not reject his control or manipulation of his own courts, or his administration of the regale beneficium which was his own justice.  But if they believed they had been denied justice, their recourses were limited.  Evidence from early in Henry III’s reign suggests that they could apply to the king for remedy, or sue against the king’s agents who had implemented their master’s command, in the hope of inducing penitence or second thoughts on the part of the king, or they could appeal to the king’s own court, the magna curia regis, where the magnates should, in theory, gather in periodic assembly to discuss the business of the realm.19  Glanvill had earlier given expression to conventional wisdom in referring to `problems settled in council on the advice of the magnates (procerum) and with the supporting authority of the prince’.20  But of course it was for the king to convoke such assemblies, and not until Clause 14 of Magna Carta laid down who was to be summoned when grants of taxation were to be discussed was any effort made to determine who should attend them.  During John’s reign the landowner, great or small, who hoped that the king’s court would grant him redress was obliged to approach it as a tribunal in which the king could act as the judge in his own case, one which he might well find dominated by the very men responsible for the injustice of which he was complaining.  There was thus nothing backward-looking about the demand of the barons for the judgment of their peers, which for themselves, and for others too, could be seen as constituting their best hope of obtaining justice in the highest courts of the realm.

 

Justice, law and will

As already observed, there is no reason to believe that Clause 39 was intended to benefit earls, bishops and barons alone.  On the contrary, there is plentiful evidence that successive kings’ attitude towards, and exploitation of, their powers of jurisdiction was capable of affecting all those free men on whose behalf the clause was explicitly drawn up.  In an age still in the process of coming to terms with the concept of impersonal government, justice was one of the principal appurtenances of the kingly office, and in that capacity it was a vital source of revenue, and also an instrument of patronage, making it alike a means of bestowing favour and of instilling fear.  The Angevin kings used it in all these ways, all the more effectively because they were powerful, aggressive and unpredictable rulers who felt no obligation to account for their actions.  Their good will, their anger or their malevolence were sufficient in themselves to bring success to or disaster upon those who felt their effects.  They did not even have to inflict violence on those with whom they were displeased, though they were perfectly capable of doing so.  In a world of considerable administrative and judicial complexity there was much that could go wrong with the affairs of a man whom the king turned against, or to whom he denied the kind of favours which enabled his business to prosper.21  In 1214 King John fell out briefly with Bishop Hugh of Lincoln, but then around the end of October he issued letters patent notifying his officials that he had granted Hugh a full remission of his indignation, and ordering them not to allow any injury to be done to the bishop and his church, `or to their men, things, possessions, fees, rights or liberties ...’22 – the list underlines at how many points a spiritual or secular magnate could become vulnerable if the king became hostile.

 

Fundamental to any king’s relations with his subjects where governance was concerned, was the contrast between law and will – a commonplace one in medieval legal and political thought.23  The author of the Dialogue of the Exchequer, written at the very heart of Henry II’s government, pinpointed the difference when in a well-known passage he described the laws of the forest as `based on the will of princes, not on the law of the whole kingdom, so that what is done under forest law is called just according to forest law, rather than absolutely just ...’ (his analysis was arguably more theoretical than real, since in fact the law governing the forest was very tightly regulated).24  In a society whose outlook on human conduct was deeply coloured by the doctrine of original sin, it was taken for granted that the uncontrolled will inevitably gravitated towards ill-doing; hence another interpolation in the Leges Edwardi Confessoris, declaring that `right and justice should rule in the kingdom rather than evil will (voluntas prava); law is always created by right; will, indeed, and violence and force is not right’.25  It was in this light that the author of the Melrose Chronicle contemplated the misrule of King John, and was so indignant at what he saw that he broke into verse: `For the king subverted the best customs, laws and rights of the kingdom; he did not rule his subjects rightly; whatever was his pleasure he thought to be the highest good ...’.26  On similar grounds the Waverley annalist declared that for John, law had been replaced by `tyrannical will’,27 and the `Invectivum contra regem Johannem’ denounced him as `not a king but a cruel tyrant’28 – such were the effects of throwing off the constraints of custom, counsel and reason.

 

King John himself acknowledged the distinction between will and law, and equated the latter with judgment, when in 1213 he ordered the justiciar to make inquiry as to whether Geoffrey de Lucy had been disseised of the Kentish manor of Newington `by our will or by the judgment of our court’.29  His father and older brother were alleged to have acted in accordance with their will when they saw fit.  In 1200 Walter de Solers, a west country landowner, gave ten marks and a palfrey for seisin of a mill of which, he said, his father had been dispossessed voluntate H. Regis,30 and the Lincolnshire magnate Gilbert de Gant, suing five years later against Reinfred de Bruiera for lands worth £20 in that county, responded to his opponent’s presenting a number of charters and a confirmation by Henry II,  by claiming  that `if King Henry did confirm these gifts, he did his pleasure and not what he ought (libitum suum fecit et non quod debuit)’.31  Richard I acted similarly, as when he voluntarie deprived Geoffrey de Say of the Essex barony of Pleshy,32 and transferred the Norfolk manor of Scoulton from Robert to William de Mortimer, per voluntatem suam.33  Richard’s justiciar, William de Longchamp, was alleged to have acted in like manner, since he was described in 1204 as having deprived a Warwickshire landowner of six virgates in Wilmcote, `unjustly and without judgment and by will and force ...’.34 

 

Longchamp had a reputation for high-handedness, but the same can hardly be said of the king’s justices, yet in 1220 Geoffrey of Buckland and his colleagues who had recently conducted an eyre in Norfolk were found from their own rolls to have disseised Ralph de Tiville of the manor of Intwood `by will and not by judgment’,35 in apparent reference to their decision concerning the procedure to be followed.  By then process and procedure were coming to be recognised as inseparable, but it may have taken time to bring them together, just as it did to formulate the antithesis between will and law.  In the agreement which Longchamp made with Count John in 1191, the former agreed that barons, prelates and free-holders were not to be disseised at his will or that of his officers, `but they will be dealt with (tractabuntur) by the judgment of the king’s court according to the lawful customs and assizes of the kingdom, or by the king’s command’,36 as though a court’s judgment and a royal order were of equal validity in law.  Not until nearly twenty-five years had passed was their separation clearly formulated.

 

Concepts of law in King John’s reign were exposed to many cross-currents.  Exercises of the king’s will went alongside numerous expressions of concern for lawful judgment, with the king’s court being regularly offered, or sought, for its dispensation.  It is not always clear what the relevant court was.  Royal letters and directives usually referred to curia nostra, which could mean any court held by the king’s justices, but it seems likely that when a petitioner or litigant requested or was granted a hearing in the king’s court, this usually meant the court coram rege, created by John in the first year of his reign,37 where he might himself preside and which as a result had a unique status, not least as the place where acts of injustice and judicial inadequacies in other courts could be most authoritatively rectified.  It will have been in full awareness of this, since the relevant procedure was described by Glanvill in a book devoted to the day-by-day workings of the courts,38 that after John’s former servant John de Gray was made bishop of Norwich in September 1200, and set about recovering episcopal lands alienated under his predecessors, the king licensed the bishop `to place his court in our court, so that his lawsuits which he has placed there can be terminated by the judgment of our court and the custom of the kingdom’.39  Whether the bishop’s opponents saw this privilege as a gesture towards impartiality is not recorded – only one lawsuit can be shown to have resulted.40 

 

Malevolence and benevolence

The concept of the crown, as the abstract embodiment of royal government, moved by customary routines and constrained by them, had become established by the end of the twelfth century,41 but it lacked weight, and was easily set aside by the unambiguously subjective force of the king’s will: `it is just (justum est) that we should treat those who are with us better than those who are against us with our enemies’ wrote John in 1207, when ordering the investigation of an inheritance dispute in Gascony, between two brothers who had taken opposing sides in the conflict between the kings of France and England.42  Against the background of so personal a concept of justice, the king’s good will and ill will, benevolentia and malevolentia, came close to becoming agencies of government in their own right.  Royal malignity could be reinforced by anger, rancour or indignation, or even by all three at once – when Fulk Paynel came to terms with King John in 1214, and recovered the English lands he had lost for siding with Philip Augustus ten years earlier, the English king formally remitted `all the anger, rancour, indignation and malevolence which we held against him ...’.43  The list of irate synonyms harks back to a not-very-distant age when the king’s anger and his ability to inspire fear were essential weapons in his armoury of government.44  In the case of Henry II a king’s rage could find expression in what to a modern eye looks remarkably like a right-royal tantrum.45 Even so, although that king and his sons acquired new and more systematic ways of enforcing their will, they retained this older one as well, and all too often allowed it to infuse the workings of their administration, of law as of much else. 

 

The inevitable corollary of anger and malevolence was the loss of benevolence, which, indeed, people paid to recover much more often than they did for remissions of the king’s wrath.46  There was a lot more to royal good will than a kingly smile. The world of the Angevin court and government was one of violent, almost black-and-white, antitheses, in which benevolence and malevolence were polar opposites, with little neutral ground between them – anybody who lost the one stood in immediate danger of incurring the other, and of seeing his affairs go to ruin in consequence, exposed to the caprices of an administration which was always heavy-handed and often downright violent as well.  It may well have been easy to lose Henry II’s good will.  Robert Belet, a landowner in Surrey and perhaps other counties, was said in 1220 to have been deprived of all his lands because Henry was angry with him concerning a sparrow-hawk (occasione unius espervarii);47 the estates included lands in Bagshot, seemingly attached to a serjeanty relating to the custody of the king’s greyhounds (servitium vealteriae), which Belet had long ago granted to a third party, but which the sheriff of Surrey, moved per cupiditatem, took the opportunity to seize, apparently to his own profit.  Robert Belet eventually paid to recover his lands,48 but the Bagshot property was subsequently lost to its tenant, one Ralph FitzHemming, when Hubert Hopeshort, the keeper of the king’s dogs, took advantage of his access to the ear of the king (probably still Henry II) to insinuate that Ralph had refused to accommodate the royal hounds (noluit recipere canes suos); a further outburst of wrath followed (dominus rex iratus fuit cum eo), and Hubert was allowed to eject Ralph from the property and hold it himself.  Hubert’s action shows the advantages which an unscrupulous man could hope to gain from being in regular attendance on the king, even in a relatively humble position.  His exploitation of them may have given him a bad reputation – what appears to have been a recollection of the same abuse of influence emerged in another lawsuit, in 1233, which turned on the disseisin by Henry II of one `Honing’, who refused a dinner to `Hopeshort the king’s huntsman’, and as a result lost his property at Windlesham, near Woking49 – but he held on to his gains until his death, and his presumed grandson, another Hubert, still held property in Surrey in 1246.50

 

Angevin precedents: Henry II and Richard I

The same case also illustrates the devastating effects of a king’s anger.  The injustice done to Ralph FitzHemming may eventually have been at least partly rectified, but it took many years of litigation, and presumably expense.  Those who could afford it paid for remission of the king’s indignation, or the recovery of his good will, incurring debts which were doubtless calculated in proportion to both their offences and their means. When Adam de Port, lord of the Herefordshire barony of Kington, undertook to pay 1000 marks in 1180 `as fine for his own land and the inheritance of his wife, and that the king may remit his indignation against him and take his homage’,51 he was probably recovering what he had lost following allegations of treason in 1172, and then participation in the Scottish king’s invasion of northern England in 117452 – actions which might reasonably have aroused indignation.  Others paid for lesser misdeeds.  In 1176, for instance, Philip of Kinver accounted for 100 marks `for having the king’s benevolence, and for a forest offence (forisfactura), and for his land’, while Alan de St George accounted for forty marks `for having the [former] wife of Richard de Gouiz with the king’s good will’ – no doubt he had lost that good will by marrying her without licence.53  Two years later Robert Trenchart owed 300 marks `for having the king’s benevolence and that he may have peace from the pleas which Robert of Briddlesford had against him, and because he gave a woman [in marriage] without the king’s licence’,54 and in 1182 Robert FitzWalter accounted for 100s. `so that the king may remit to him his anger for the flight of Adam of Boulogne for whom he had stood pledge’.55

 

This last case shows how the king’s humbler subjects, as well as earls and barons, could lose the good will of their ruler, and even though the latter might well have never heard of them, they might still find it advisable to buy it back.  Even so, under Henry II and Richard I those affected in this way seem to have been mostly members of the social élite, commonly paying what were substantial amounts on often unspecified grounds.  Thus in 1168 Ralph de Beteville accounted for 100 marks `for having peace from the king’s malevolence’,56 and in 1175 the king’s benevolence cost Gervase Paynel, lord of Dudley, 500 marks, a sum he paid off over five years, while Hamo de Masci undertook to give 300 marks, along with ten horses and ten falcons.57  Five years later the same benefit cost Hugh de Bayeux, lord of Thoresway, Lincolnshire, 300 marks but only one falcon.58  Perhaps it was only to be expected that Henry II, a passionate huntsman, should have demanded birds and dogs in return for his good will, and that offences against the forest laws should have been among the known causes of his wrath; as it was in the case of Geoffrey Ridel, for instance, recorded in 1177 as owing 300 marks `for a forest amercement and because the king remits to him his anger’.59 

 

According to Howden, Richard I began his reign by reversing many of Henry II’s `evil works’: `For those whom the father disinherited, the son restored to their former rights; those whom the father drove out, the son recalled; those whom the father held in chains, the son released unharmed; those whom the father afflicted with torments for justice’s sake, the son restored to life for pity’s sake ...’.60  Although the list is strikingly close to that of practices forbidden by Clause 39, the chronicler did not accuse the late king of acting unjustly and without judgment, indeed, the reference to justice could imply that it was as much heavy-handed law-enforcement as the arbitrariness implicit in the cases referred to above, which made his rule oppressive, prompting his son to declare an amnesty in order to relieve strains which had built up during King Henry’s latter years.  Those strains owed much to the fact that like his youngest son after him, Henry II was inconsistent in his attitude towards and treatment of law.  He took a considerable interest in it, was several times recorded as taking part in the proceedings of his court (in around 1176, for instance, he gave a new charter to Battle Abbey in a novel format, dictated by himself, and then explained why he had done so),61 and presided over developments in legal process and administration of immense and enduring importance.62  But he was also temperamentally impulsive and undisciplined, and consequently apt to regard law as just one more instrument of policy, as a means of obtaining ends which might be those of statesmanship, but could also serve no higher purpose than the gratification of his will or the appeasing of his grudges.  The judgment on Henry II delivered by Gerald of Wales, in an extended passage of criticism, that he was `an oppressor of the nobility, weighing justice and injustice, right and wrong by his own convenience ...’,63 although overstated, was not without foundation.

 

Without being irresponsible in his treatment of legal issues, Richard I does not appear to have shared his father’s concern with law, but he was no less willing to ignore its constraints.64  In temperament the two men had much in common, and they certainly seem to have felt resentments with equal keenness.  It is probably unsurprising that Richard, who came to the throne after waging at war against Henry II, and who returned to England in 1194 to complete the suppression of a revolt by his brother John, count of Mortain, before conducting well-nigh continuous campaigns against the king of France around the borders of Normandy, should at various times have displayed his anger towards, and exacted payments from, representatives of Henry II’s government, adherents of Count John, and men who failed or betrayed him in his military undertakings.  He was no more inclined than King Henry to keep his malevolence, or the threat of it, out of his activities as king, but he directed it at different targets.  At the beginning of his reign, indeed, he was reportedly generous to servants of Henry II who had remained loyal to him and hostile to those who had betrayed him, three of whom Richard disseised `instantly, in the same moment’, as traitors to the late king.65  But ancient grudges clearly lingered.  William Turpin, Henry II’s last chamberlain, seems to have been notoriously detested by Richard, since it was not the latter but the earl of Arundel who disseised Turpin of lands in Sussex, probably in 1193/4, `because he knew that King Richard felt malevolence against William’.66  Ranulf de Glanville’s association with the former regime may well have led to losing his office of justiciar,67 while his steward Reiner had to proffer 1000 marks, most of which he paid within a year, to have the king’s benevolence and recover his lands, and two royal justices, Ralph Murdach and Ralph of Arden, fined by 200 marks and 1000 marks respectively, the former `for his fine and the love of the lord king’, the other `for his fine and for having the king’s benevolence’.68  The king’s half-brother Geoffrey, feared as a potential rival for the throne, and perhaps also resented for his loyalty to Henry II in that king’s last days, had to pay 2000 marks to have the new king’s good will and a castle in Anjou.69

 

Richard’s benevolence was much in demand in the early months of his reign, as it was again in the mid-1190s, after the suppression of Count John’s revolt.  Some of those concerned had been among John’s principal supporters, like Gerard de Canville, who had to pay 2000 marks `for having the king’s benevolence and for having his lands’,70 but members of the rank and file suffered as well – in Lancashire, which had constituted part of John’s princely appanage, fourteen men paid sums ranging from 40s. to £80 for King Richard’s good will, and the men of Devon (another county held by John) were also hit hard, with numerous fines being entered on the 1194 pipe roll `for having the peace and good will of the lord king because he was with Count John’.71  In several cases the fines specifically paid for the restoration of lands as well, and suggest that quite modest landowners had been affected.  In Devon, for instance, Richard the Welshman paid just £5 `for having the king’s peace because he was with Count John and for having his lands.’ 

 

Combining punishment and fiscal exploitation in a manner which could be felt throughout landowning society, Richard’s measures point to the strains attendant upon continental warfare.  William of Hastings owed 100 marks `for having the king’s benevolence as he did not cross at the king’s summons in the army for Normandy’, while the wealthier Richard de Umfraville had to find £100 (which he paid within a year) `that he may not incur the king’s malevolence as he did not cross the sea’.72  Perhaps it was a reflection of Richard’s martial preoccupations that he should have perceived military failings as something akin to a personal slight, but like his father, he seems also to have seen administrative shortcomings and abuses in a similar light.  After the death in 1192 or 1193 of Henry of Cornhill, a member of a powerful administrative family in Kent, his brother Ralph proffered 100 marks for being allowed to account for Henry’s debts `without anger and indignation’, and not long afterwards Ralph himself had to find 2000 marks `for having his lands of which he was disseised and the king’s benevolence.’73  It is usually impossible to say what men like the Cornhills had done to incur the king’s wrath, but in the case of William of Yarmouth, who proffered 500 marks in 1197 `for the lord king’s benevolence and for having his lands and things which were seized into the king’s hand ...’,74 it seems reasonable to link his punishment with his administration of the customs and other revenues in East Anglia.

 

King John’s justice

Like his father, and much more than his older brother, John seems to have been genuinely interested in legal issues (he may well have been personally involved in the creation in 1201 of the writ of attaint, which made it possible for faulty verdicts on possessory assizes to be reviewed and reversed),75 and clearly took his role as fount of justice seriously.  Lawsuits were often transferred to his court either on his own orders or because the justices in other courts felt they were most appropriately dealt with before the king.  Perhaps he sometimes had judicial duels postponed until they could take place in his presence because he enjoyed watching them,76 while his interest in cases involving his leading subjects must often have had a political as well as a strictly legal dimension, but many of the actions he heard appear to have turned on difficult points of law.  He did not sit alone in court, and no doubt took advice from the professionals who sat with him, but he was capable of disciplining his subordinates if he decided that they had acted wrongly or unwisely.  In 1207, for instance, he amerced James of Potterne and Simon of Patteshall, two experienced justices, of 100 marks each because they allowed the out-of-court settlement of an action between two Northumbrian magnates without consulting him.  They were later pardoned, but the king’s response underlined his control of his own court.77 

 

Although King John’s mobility doubtless sometimes created inconveniences for litigants, it must have been partly, or even mainly, because the court coram rege was widely regarded as careful and trustworthy in its dispensing of law that many litigants chose to have their lawsuits reserved for its judgment, while the common bench appears to have been generally seen in the same favourable light, at any rate when its services were available – it was closed for five years from the spring of 1209, and there were also no eyres from 1209 until the end of the reign.  Probably it was for purposes of control that King John himself in 1215 granted that the kings of Connacht `should not be disseised without the judgment of our court’,78 but access to the royal courts, in any of their manifestations, was usually a privilege which people were glad to receive, like Roald FitzAlan, constable of Richmond, to whom King John made a grant of lands in 1205, with the rider that `neither he nor his heirs are to be disseised of any of the aforesaid tenements unless by judgment of our court’,79 or willing to pay for.  Most of those who paid were people of high rank, like Petronilla, countess of Leicester, who in 1204 proffered 3000 marks for Leicester and other lands nearby, which she would hold `unless she is disseised by judgment of the king’s court’80 (in the event she was outbid by the earl of Winchester), or Peter de Brus, a Yorkshire magnate, who in the same year gave 200 marks and a palfrey for two manors, specifying that `he is not to be disseised of them unless by judgment of the king’s court’,81 or Earl Roger of Norfolk, who paid 100 marks in 1206 not to be disseised of land at Bungay, which had apparently been held by his stepmother, `unless by judgment of the king’s court’.82

 

Humbler men, too, regarded the justice dispensed by royal courts as a safeguard for their tenures which was worth purchasing.  Thus in 1199 James of Winchelsea, claiming to have been unjustly disseised of land there after he had recovered it by an assize of mort dancestor, proffered £5 to be put back in possession, `and if thereafter anyone wishes to sue against him, he will stand to the judgment of the king’s court’ (which at that date could not have been the court coram rege),83 and in 1205 Simon of Cropredy, a Northamptonshire landowner, recovered a knight’s fee in Spratton in the Curia Regis, and then gave twenty marks and a palfrey for not being disseised `unless by judgment’.84  In 1222 the sheriff had to be ordered to put Simon back in seisin of his estate at Spratton, which had been taken into the king’s hand as having been formerly held by a Norman lord,85 but there is no evidence that John’s government was responsible for the sequestration, and that king seems usually to have observed his side of these bargains, at least to the extent of offering an explanation if he failed to do so.  When in December 1206 John ordered the Irish justiciar to put the archbishop of Dublin in possession of a property then held by the Cistercians of St Mary’s, Dublin, despite his having stated, in writing, that they were not to be disseised `unless by judgment of our court’, he excused his action by explaining that `we do this by the counsel of our bishops, earls and barons ...’.86

 

There is indeed much in the record of the administration of justice during John’s reign to suggest that many, if not most, of those who litigated in the royal courts could expect that due process would be observed and that their claims would be equitably treated there.  That the king himself was well aware of his subjects’ expectations where the administration of justice was concerned is suggested by a letter sent to his Irish subjects in 1207, declaring that `we do not wish that you should be treated hereafter except according to law and judgment, nor that anyone should take anything from you at will (per voluntatem), or be able to disseise you of your free tenements unjustly or without judgment, nor that you should be impleaded for your free tenements by any writ except our own or that of our justiciar ...’.87  Although John was writing in the immediate context of efforts to bring the major Irish liberties under closer control, his letter nonetheless provides an impeccable statement of the basic principles of acceptable legal practice, and of his own willingness to uphold them. 

 

But there was another side to this seemingly valuable and well-made coin, one which, as with any silver penny, arose from the fact that the whole piece was made by the same moneyer.  There was nothing necessarily impersonal about the way the Angevin kings directed the functioning of the courts which provided justice in their names.  All were masterful men, and the ways in which they showed their mastery included the active supervision and manipulation of the processes of the law.  Law could be, and often was, treated by them as one of the fundamental appurtenances of the kingly office, but it could also be managed as a commodity of which they possessed the monopoly, to be exploited as they thought fit.  Their regulation of law, of the ways in which it could be sold, given away for nothing, or withheld altogether, as the royal pleasure or convenience decided, was brought under control by Clause 40 of Magna Carta.  Clause 39 was concerned to redress successive kings’ use of law as an executive implement, to inflict punishment, to impose discipline, or simply to raise money, as their policy required or their needs dictated.

 

Disseisin: methods and impact

When John came to the throne in 1199, he had ample precedents in the reigns of his two predecessors for a style of government in which established protocols and legal precedents competed for dominance with the will of the monarch.  It is difficult to be sure that John’s dealings with his subjects were in fact more arbitrary than those of Henry II and Richard I – they may simply be much better recorded, thanks to the existence of chancery records, in which case Angevin kingship was probably heading for trouble whoever was on the throne.  But it seems likely that John took further the methods of his predecessors, and intensified their effect by the selective and unpredictable ways in which he employed them, compounded, perhaps, by his inability to use to good effect the money he extracted by what came increasingly to be regarded as irregular means.  Henry II and Richard I usually won their wars, so that their subjects could at least see that what was extracted from them had been well spent, but John almost invariably lost his most important battles and campaigns, the ones he waged in France.  His humbling of the Scots, Welsh and Irish probably looked like no more than an extension of the treatment he handed out to his subjects in England, with whom, indeed, they allied themselves as soon as the opportunity arose, and failed to give him the prestige enjoyed by victorious kings.  It is not clear that the visible splendour with which he liked to surround himself was an adequate substitute for this.

 

Of the methods of oppression forbidden by Clause 39, the most important, because it was by far the most often used against members of landowning society, was disseisin, the forcible seizure of their estates, which became unlawful when it was carried out `unjustly and without judgment’.  At the 1194 Wiltshire eyre Robert de Hugeford lost his action against two men for disseising him of land in Wilton when the jury found `that they did not disseise him without judgment, as they disseised him by judgment of the court of the abbess [of Wilton]’.88  It was bitterly resented, not least because it carried with it the possibility of social as well as financial ruin.  The possession of land, with the command of men as well as of acres which accompanied it, gave a standing in medieval society which money alone could never transmit.  John himself had been dubbed `Lackland’ in his youth, arguably as much in derision as in reference to his unendowed status.  But the fiscal consequences of dispossession were severe as well, entailing considerably far more than a lock on a gate or a warder at the door – anyone disseised on the king’s orders faced the loss of all his or her movable assets as well, and in extreme circumstances, as in the civil war at the end of John’s reign, the complete devastation of the property.  Thus in 1215 the houses on the land of Henry of Braybrooke were to be completely demolished, while a year later order was given that all the lands of William of Hastings were to be wasted, his demesnes destroyed and his castle pulled down.89  The impact of a disseisin in peacetime is vividly shown by a private lawsuit of 1205.  When Richard de Muntfichet (ten years later one of the twenty-five barons charged with enforcing Magna Carta) was found to have disseised Katherine, widow of John de Muntfichet, of land at Burleigh, Hertfordshire, her damages were assessed at thirty-five marks (£23. 6s. 8d.), `in the uprooting of garden, wood and houses, and in the sale of horses, oxen and other animals, and the removal of coffers and clothes, and the delaying of her sowing season.’90 

 

The king and his agents are unlikely to have been any gentler.  It is true that in a number of cases the king’s officers were told to restore what they had taken when they occupied an estate.  When the abbot of Westminster recovered seisin of the manor of Pershore in 1205, for instance, having been deprived of it because the king’s palfreys were badly looked after there (most likely when John stayed at Pershore on 15 August 1204), John FitzHugh was commanded to give back anything that had been taken, though an exception was made of `the needs (necessaria) of the palfreys and their keepers’.91  But otherwise a confiscated estate was clearly regarded as potentially an asset to be comprehensively stripped.  When in 1207 Geoffrey de Jorz fined by 220 marks to recover his lands in Nottinghamshire, and to have remission of the king’s rancour, probably incurred by inadequacies in his keeping of Clipstone Park, he was allowed to set against his debt a total of £20. 19s. 8d., which Brian de Lisle had raised by selling his chattels.92  Another unsatisfactory forester, Richard of Laxton, lost chattels valued at £30. 15s., likewise sold by Lisle who then paid the money into the king’s chamber.93

 

The strong-arm methods which the king’s men might employ can be seen in the case of Geoffrey Gibwin, who in 1211 was summoned at the king’s suit to show by what warrant he had entry into two thirds of Thornhaugh, a few miles south east of Stamford.94  Geoffrey’s defence was that he had been given entry by the abbot of Peterborough (he was the latter’s steward), having bought it along with the wardship of the heir of Geoffrey de St Medard, one of the abbey’s principal tenants, and that he had himself been disseised of the property by Sir Adam de St Medard, no doubt a kinsman of the heir.  He claimed to have held the wardship for three years until the abbey fell vacant on the death of Abbot Acharius in March 1210, whereupon `there came bailiffs of the king who had custody of the abbey and harassed him about it (vexabant eum inde), so that he paid £10 to Robert of Braybrooke, the abbey’s bailiff, to have peace ...’.  And he offered two palfreys to be allowed his seisin as he had paid the abbot for it.  He does not appear to have recovered it, however.  Three years later Geoffrey was once more in court to face the king’s suit, this time over Thornhaugh church, on the grounds that he was preventing the king, who also claimed the wardship, from presenting its parson.  Again Geoffrey defended his right, and told how when two wardships fell in, around 1200, the king had claimed them, but had granted them to Acharius for 200 marks, after which the abbot sold that of the St Medard fee to Geoffrey for £100.  When Acharius died, the abbey, its lands and its appurtenant fees had been seized by the crown, Thornhaugh with the rest.  Shortly afterwards Geoffrey was summoned to take part in John’s expedition to Ireland; not wishing to go, he gave fifteen marks to be spared making the journey, and also for having an inquest as to whether the St Medard wardship belonged to the abbot or the king, but although he paid the money he could never have the inquest.  Nor did he obtain the advowson.  The case ended with the court deciding that because Geoffrey did not have the land to which the advowson pertained, the bishop of Lincoln should be instructed to admit the king’s nominee, while Geoffrey was forbidden to hinder the presentation.

 

Disseisin: victims great and small

The recorded details of this case are known almost entirely from the pleadings of Geoffrey Gibwin, but since Abbot Acharius’s payment, as well as his proffer, for the disputed wardship was entered on the 1200 pipe roll,95 it is hard to avoid the conclusion that Geoffrey was the victim of a combination of chicanery and force.  It was a potent one, made more so by the resources of manpower and authority at the king’s disposal, and it could be directed against anybody.  The men targeted, with or without recorded explanation, included some of the greatest men of the realm.  In December 1204 order was given for the seizure of the lands of Ranulf, earl of Chester, and Roger de Montbegon, a leading northern baron, along with everything on them – the sheriffs of five counties had to be directed to implement the king’s commands.96  In the following year another northern magnate, Robert de Ros, was deprived of his lands,97 while in 1207 the East Anglian magnate Roger de Cressy had to pay 1200 marks and twelve palfreys (another sixty marks) for seisin of his estates.98  No reason was given for the king’s action against Ros, but John could reasonably have felt the need to discipline Ranulf of Chester and Roger de Montbegon, who were prominent in resistance to his government in the north of England, while Cressy paid the price for marrying an heiress without royal permission, and perhaps understandably needed to recover the king’s benevolence as well as his own and his wife’s lands.  Duncan de Lascelles, lord of a quarter of the lordship of Eton, Buckinghamshire, may have suffered on similar grounds – he was disseised for failing to take part in the 1209 Scottish campaign (as a substantial landowner in Scotland as well as England he may well have preferred to join the host which William the Lion summoned to resist the threatened English invasion).99 

 

But other men of consequence fell foul of the king and lost their lands on less substantive grounds, or even on no apparent grounds at all.  When Hubert Walter died in 1205, all his lands were at once taken into the king’s hands, including those which the archbishop held as wardships or as pledges for debts.  Two manors belonging to the Devon magnate Henry de la Pomeray which had come into Hubert’s hands in this way were now seized by the king, and Henry had to pay thirty marks to recover them, although there is no reason to suppose that he had committed any offence.100  In 1209 the abbot of Fécamp in Normandy proffered 100 marks, a palfrey and two barrels of wine `for having his lands and things and possessions of which he was disseised because of the malevolence which the king had towards the barons of the Cinque Ports ...’.101  The abbot had property in Romney, but although there is no reason to suppose that he had been involved in whatever action, or inaction, had aroused the king’s anger, his territorial connection with the Cinque Ports was apparently enough to justify his disseisin.  Other men suffered for no ascertainable reason.  Hugh Malebisse, for instance, an important Yorkshire landowner, who was disseised in 1205 on no recorded grounds except that the king was angry with him, and had to give 200 marks and two palfreys to recover his lands, along with the king’s benevolence which he had mysteriously lost,102 or Mr Michael Belet, the royal butler and a clerk in the royal household, who proffered 500 marks in 1211 `for having the king’s benevolence and his rents and lands of which he was disseised because of the malevolence which the king had towards him’.  Again, no explanation was given for John’s wrath, though it has been surmised that it arose from some incident during the long-running crisis triggered off by the election of Stephen Langton as archbishop of Canterbury in 1207.103  All these men could perhaps have expected, or at least hoped, that the king’s actions against them would have been followed a hearing at Westminster or, more likely, in the court coram rege, but there is no evidence that they did so. 

 

In dealing thus with magnates and courtiers, John was arguably doing no more than his father and older brother had done.  In 1164 Henry II had set out to ruin Thomas Becket by judicial means, but the attempt had ended in confusion, and perhaps for that reason Henry and his sons usually preferred thereafter to take more direct action against great men who offended or resisted them.  What sets John’s kingship apart from that of his two predecessors is the number of lesser men who were similarly targeted, men who could not usually expect a hearing in the Curia Regis, unless they paid for it, but who would still have claimed the right to one in a properly constituted court, with a judgment delivered by men from their own vicinity and of a standing akin to their own.  The admittedly terse records suggest that the victims of the king’s will or anger were all too often denied this, and that almost any offence, whether real or not, could result in dispossession, carried out on orders whose arbitrariness was if anything underlined by the frequency with which they were said either to have originated in the king’s malevolence, or to have been reversed in order to recover his good will, and in either case to have been accompanied by payment.  It needs to be borne in mind, however, that although disseisin was very often a means to a financial end, there must have been cases in which it was an end in itself, when it served as a punishment, pure and simple, and went unrecorded for that reason.  The Angevin kings undoubtedly ejected more people from their lands than the surviving records show.

 

Some of those affected were royal servants, albeit of a humbler kind than men like Richard of Laxton and Geoffrey de Jorz mentioned above.  Richard FitzWilliam, disseised `because of our park of Havering’, was probably one such,104 Roger of Poitou, whose land was taken into the king’s hand `for failure in the service of keeping goshawks’, must have been another.105   Nor was it only magnates who suffered if they married without licence – the twenty marks proffered by William the Welshman, `for having the king’s benevolence because he married Emma de Waie without the king’s consent, and for having peace because he fled, and for having seisin of his own land’, by its relative insignificance shows that he was a man of limited means.106  Some of the king’s bitterest disputes with his barons arose from his demands for military service, but lesser men, too, could suffer from these, like Matthew of Clevedon, who paid twenty-five marks `for having his land of which he was disseised because he did not cross to Ireland with the king, a fine of ten marks being `insufficient for having peace over his passage’.  Matthew might not have been rich, but since John reckoned he could afford to pay more he insisted that he do so – the debt was incurred in 1210 and paid off a year later.107 

 

Debtors and other targets

Indebtedness could be the prelude to disseisin, in a number of different ways.  From the very beginning of his reign John might insist that crown debtors pledge all their lands for the payment of what they owed,108 while in 1201 the statute of Windsor ordered that the lands for which a baron had made fine with the crown were if necessary to be taken into the king’s hand until the agreed debt could be paid.109  The collection of the king’s debts could have wide-ranging ramifications.  Gilbert of Norfolk, a former keeper of ports, died in around 1205 owing the king just over £50, the remains of a debt for being restored to possession of land in Creake and Burnham, `of which he was disseised unjustly and without judgment, as he says, and that he may not be disseised of it without judgment ...’.110  Another part of Gilbert’s estate came into the hands of William Aguillun, who was then himself disseised of it as the king pursued Gilbert’s debts, but had to be put back in it so that he could take part in John’s expedition to Poitou in 1214.111  Perhaps it was that same debt which accounts for the deal which Gilbert’s widow Emma de Belfou was forced to make with the king after her husband’s death; not only did she have to pay £400 for her inheritance, but she was also obliged to agree that if she died without an heir of her body, her manor of Lowdham in Nottinghamshire `will remain to us and our heirs for ever after her decease, quit of her other heirs ...’.  Emma was allowed to pay the money at the rate of 100 marks per annum, and duly cleared her debt in 1211.112 

 

Other debtors were less provident, or fortunate, and discovered that failing to keep the prescribed terms for the payment of a fine could also lead to disseisin, as Henry son of Hugh de Neville found in 1201; he had proffered £100 for his father’s lands in 1200, and paid £76. 16s. 8d. by the end of the year, but failed to complete his payments within the twelve months following, with the result that John took the lands back, and Henry had to pay an extra £10 and a palfrey to recover them, while still having to find the £23. 3s. 4d. due from his original debt.113  Richard Noel, a small freeholder in Kent, fell foul of King John, whom it pleased to have him put in prison until he fined by fifty marks to be released, when the king `caused him to have such seisin of all his land as he had on the day he was arrested ...’.  But although Richard managed to find £12. 3s. 4d., he could not pay the rest, whereupon the sheriff of Kent (Reginald of Cornhill, a devoted royal servant) disseised him again, probably in around 1206, and he only recovered his property (conditionally) in 1219.114 

 

Debts to Jews were a source of profit which John exploited to the utmost.  When in 1207 he resolved to collect what had been owed to the long-dead Aaron of Lincoln, he chose as his primary target the Lincolnshire landowner Jollan de Amundeville, who owed £276, and ordered that all his lands should be taken into the king’s hand, `whoever holds them’, and added that the lands of everyone else who had owed money to Aaron should be treated in the same way.115  Another threat to property arose from the practice whereby agreements made in the Curia Regis concerning the payment of debts gave the king the right to take a proportion of the sum at issue.  Two actions brought by Roger the Welshman in 1205 show what the consequences might be.  Both Michael Capra and Roger de Cramaville had settled with Roger to pay what he owed at a specified term, and each failed to do so, whereupon the lands which Capra and Cramaville had offered as security for payment were seized, not by Roger the Welshman but by the king, so that he could have the thirds which were his agreed share.116

 

The king’s particular concern for, and close control of, the royal forests perhaps make it unsurprising that disseisin could follow conviction for poaching – Ralph FitzRalph, who took a stag in an unidentified Leicestershire forest, was thereupon disseised on the king’s order, and had to pay forty marks to recover his lands.117  Thomas of Haverhill similarly suffered the loss of his lands (and chattels) after three hare-skins and a greyhound were found in his house, seemingly in Middlesex, and he, too, had to give forty marks to have them back.118  Other offenders against the peace or against the processes of justice were dealt with in a similar fashion, men like Robert the butler, whose lands and chattels were seized after allegedly castrating his wife’s lover,119 or Roger of Hoo, an East Anglian landowner, who proffered ten marks and a hunting horse `for having the king’s grace and for having his land of which he was disseised because he beat the king’s servants’,120 or Thomas Crok, who began an appeal against two men for the death of his father but came to an agreement with them without the king’s licence, subsequently fining by twenty marks to recover the property which had meanwhile been taken into the king’s hand.121 

 

Although the actions which prompted such responses were by no means trivial, they are recorded in terms which suggest that disseisin had become a well-nigh automatic reaction on the part of the king and his agents to any misdeed or suspicious act which came to their attention.  In fact in a number of cases no reason for a disseisin was given, or at any rate recorded, though it is sometimes possible to hazard a guess.  The fact that one Robert the scullion (Scutellarius) was said in 1213 to have been seised on the king’s order of Northamptonshire lands of which Richard Gubiun and Roger the forester had been dispossessed `without judgment’, raises the possibility that a court official had taken advantage of his access to the royal ear in order to secure other men’s estates.122  But in a case like that of William Beaupere, who with his wife and sister was ejected from land which William’s father had held in Feckenham, Worcestershire, it can only be said that the king ordered that this should be done.  The fact that in 1204 ten marks sufficed to have them reinstated suggests that the property was a modest-sized one, but why they were deprived of it was not explained.123  The same is true of Ralph of More, who held a military serjeanty in Shropshire, was disseised around 1214 per preceptum Regis, and paid £10 to be freed from prison and to recover his land – nothing was said to explain why Ralph deserved expropriation.124 

 

The king’s order might be reinforced by his anger, a force which must have been all the more alarming because it might be unleashed without warning and for no given reason.  Hugh the fat (Grassus) seems to have been a minor royal official, reinstated in 1205 in property in Hampshire `of which he was disseised because we were angry with him ...’125 – King John’s rage was clearly regarded as justification enough for such drastic action, just as his malevolence was for the disseising around 1210 of Reginald of Gossington, the holder of a Gloucestershire forest serjeanty (he paid fifty marks to recover his property),126 and for the confiscation of the lands and rents of the abbot of Basingwerk a year later –  the abbot gave £100 `for having the king’s benevolence and for having his lands and rents, taken into the king’s hand because of the malevolence which the king had against him ...’.127  It is likely, indeed, that there were more cases in which men and women who paid to recover the king’s good will had also suffered the loss of their lands than the records reveal.  In 1210 the Devon landowner William de Brionne paid 100 marks and a warhorse `for having the king’s benevolence’.  It is only an accompanying note of the sheriff’s accounting for twelve marks, the issues of William’s chattels while his land was in the king’s hand, which reveals that he had temporarily lost his estates as well, and was presumably paying to recover lands and benevolence together.128

 

As the head of a Cistercian house, the abbot of Basingwerk was probably targeted because his house belonged to an order which John was then actively oppressing.  Disseisin was, indeed, a weapon which could be turned against whole orders of society, especially the clergy.  In 1205, following the loss of Normandy, the prior of Andover, a modest-sized daughter-house of St Florent of Saumur, gave a palfrey `for having seisin of his lands and things of which he was disseised by reason of the king’s general order for disseising men of religion from overseas ...’,129 and in 1208, in anticipation of the interdict which he knew was about to be imposed, John issued a hardly less general order commanding his agents in the dioceses of Lincoln and Ely to take into his hand all the lands and other possessions of abbots, priors, monks and secular clergy who refused to celebrate mass (the same order was probably sent to all the English dioceses).130 

 

The impact of such measures upon those immediately affected was bound to be severe, as of course it was intended to be, but they could also have repercussions for their tenants and associates.  When Roger de Cressy was disseised in 1207 for marrying an heiress without licence, as described above, a much lesser figure, William FitzRoscelin, was allegedly also involved in the offence, and was likewise disseised, and although he asserted his innocence he still had to pay £40 and a good hawk to have his lands back.131 Probably around 1210 William of Windsor, lord of half the barony of Eton, Buckinghamshire, was disseised of his lands for a debt to Jews which had come into the king’s hands.132  They were entrusted to John FitzHugh, under whom they were clearly managed so as to secure a good return for the king, with serjeants being appointed to keep watch over them and their yields being accounted for at the exchequer.  This may in itself have been a disagreeable experience for William’s tenants, but there was worse to come, when in 1211 a proffer of £100 enabled their lord to recover his estates, on condition that he pay off his debt at the rate of 100 marks per annum.  For William then seems to have applied himself to ejecting the current tenants, perhaps so that he could exploit their holdings himself, perhaps in order to replace his tenants with others prepared to pay higher rents, and in either case to enable him to pay his debt to the king.  The initial shock of disseisin was felt by the baron or bishop who lost his lands, but there could be a severe aftershock for his dependants.  The latter were not necessarily men of minor substance or consequence, making John’s freedom with disseisin as an instrument of punishment or discipline even more dangerous for himself.

 

Summary justice and government-directed violence

The government of Henry II and his sons reflected their personalities, in being restless, dynamic and often brutal.  In this it matched their preferred methods of finance, which as their landed base diminished relied instead on their ability to make the most of incidental, and therefore unforeseeable, sources of revenue as and when they became available.  They were always on the watch for opportunities to be exploited.  Their rule was prestigious and attracted talent; ambitious men wanted to serve the kings of England, and those who did so could not afford to be more scrupulous in their methods than their masters were.  Clause 39 lists those methods – arrest, imprisonment, disseisin, outlawry, exile, ruin (perhaps a euphemism for physical destruction), along with direct action by the king himself, vividly summed up in the expressions `going against’ and `sending against’. The former, at least, was precisely what John had attempted against uncooperative northern barons as recently as the autumn of 1213, when he had led forces north to Northampton and then Nottingham, pursued by Archbishop Langton, who insisted, in exact anticipation of Clause 39, that he should not wage war against anyone without a judgment of his court.133   Disseisin was the most often recorded, and no doubt the commonest, of the ways in which successive kings disciplined and punished recalcitrant or unsatisfactory subjects and servants, but all the others were employed, even killing, and not only at the expense of the great men of the realm.  Clause 39 owed its potency to the fact that the activities of the king and his servants threatened the lives and livelihoods of all free men.

 

It should be acknowledged that in an age before human rights legislation, some of the actions which Clause 39 forbade might well have looked perfectly reasonable to twelfth-century eyes.  Both Henry II, after the rebellion of 1173-4, and Richard I, after his brother John’s revolt in 1194, had disseised many of their enemies, and there is no evidence that they had waited for the dispossessed to be formally condemned before they took action against them.  The wholesale dispossession of those Normans who threw in their lot with the French crown after the loss of the duchy in 1204, which seems to have been effected with an equal lack of ceremony, on the king’s `general order’,134 cannot have come as a surprise to the men affected, or indeed to anyone else – it represented the expected, and indeed proper, penalty for those who associated with the king’s enemies. 

 

Flagrant resistance to the king’s authority might plausibly be seen as meriting condign and summary punishment – opposition to the thirteenth of 1207, for instance, which was proclaimed as having been granted with the consent of the magnates, and which resulted in King John’s own half-brother, Archbishop Geoffrey of York, being driven into exile,135 and also in a number of disseisins.  The abbot of Furness was disseised of two townships for failing to pay,136 and Roald FitzAlan, the constable of Richmond, had to give 200 marks and four palfreys to recover his castle, confiscated because he would not swear to his own assessment,137 while the abbot of Selby, who also refused to pay, had to proffer forty marks and two palfreys to avert the king’s malevolence, expressed in an order that he should be amerced of as much as possible (ad plus quod posset).138  When the Yorkshire baron William Painel was disseised in 1198 `because he was not found in his constableship in Normandy’, and had to pay £80 to recover his lands, his punishment was arguably proportionate to his offence, given the king’s need for his services at a critical point in his campaign to recover ground lost to the king of France.139  Men who without licence married heiresses in the king’s gift, or widows who married without royal consent, could perhaps have been seen in a similarly censorious light.

 

The growth of resistance to summary justice – as the king would have seen it – is reflected in the payments made during John’s reign not to be disseised without judgment (discussed above).  But Clause 39 may also reflect the direct experience of a number of the king’s adversaries, lay and clerical.  John’s quarrel with Rome led to what the king himself referred to as an `interdict, which is commonly called outlawry’, being issued on his orders against members of the clergy.140  Perhaps this interdict was styled thus in mocking reference to the one imposed by Rome, but there does not seem to have been anything diverting about its effects, since the king found it necessary to make a public revocation of it in June 1213, and to promise not to promulgate any such measure in future.  He also revoked the outlawry (referred to as such) which any laymen had incurred as a result of his dispute with the English church,141 possibly, since to consort with an outlaw was to risk suffering his fate, by associating with clerics who had fallen under the royal ban. 

 

Around the beginning of 1213 two of John’s leading enemies, Eustace de Vescy and Robert FitzWalter, were formally outlawed for their role in the conspiracy to kill the king during his planned 1212 campaign in Wales.  The offence was one which contemporaries would certainly have regarded as calling for the severest punishment, and had the conspirators been killed before they could flee it is unlikely that many would have demurred at their fate.  John chose to act against them through the courts, though how far his proceedings were fully compatible with existing law is uncertain.  Details of the sessions of Essex county court at which FitzWalter was outlawed show that proceedings were begun by royal command,142 and no later than 1234 an outlawry carried out on the king’s direct order, without any initiatory indictment or appeal of felony, would certainly have been regarded as legally insufficient.143  The same would probably have been true of the outlawry of William de Briouze, on much the same grounds.  Provoked to violence by the king’s acting against him under the law of the exchequer, in 1212 Briouze was outlawed in Herefordshire county court, this time in proceedings apparently begun by the sheriff.144  It is perfectly possible that he had been the object of a communal accusation, as a malefactor who had allied himself with the king’s enemies, but John’s record of proceedings does not say so, and in any case the fact that John stopped and restarted proceedings, as his negotiations with Briouze made convenient, would probably also have been enough in an only slightly later age to have them quashed altogether.  It may be that the outlawries of FitzWalter and Briouze were procedurally valid in John’s reign, but this cannot be taken for granted, and the inclusion of outlawry in Clause 39, as a procedure which needed bringing under control, certainly suggests that it had been abused, perhaps in these very cases.

 

The fact that nine of FitzWalter’s followers were also outlawed, without it being made clear whether they were charged with direct involvement in their lord’s treason, or only with having acted as his accessories, would probably also have justified annulling the proceedings against them – action against accessories should not have proceeded to judgment until or unless the principal offender had been convicted or outlawed.  The justiciar, three earls, and three of the king’s leading henchmen were present in Essex county court when the outlawries were proclaimed; this may have been intended to advertise the lawfulness of what was being done, but it could also have served to override potential misgivings or even opposition.  It is not known where Vescy was outlawed, though Northumberland County Court seems the likeliest venue; at least one of his followers appears to have shared his fate, though perhaps not with due formality – Reginald de Cappetoft was disseised of land in Leppington, in the East Riding of Yorkshire, `because of the malevolence which we had against Eustace de Vescy’.145

 

Briouze and FitzWalter fled to France, while Vescy took refuge at the Scottish court.  The bishops and other clergy who refused to serve an excommunicate king similarly left the country, and all could plausibly have been regarded as exiled in the sense in which Clause 39 used the term.  Arrest and imprisonment were similarly potent weapons in the royal armoury.  Some of those affected were essentially political prisoners, like Queen Eleanor, kept in confinement by Henry II between 1173 and his death in 1189, or Arthur of Brittany, imprisoned and then murdered by King John, and his sister Eleanor, who remained a prisoner between 1202 and her death in 1241.   Others were victims of executive action – the ordinance authorising the thirteenth of 1207 laid down that the penalty for anybody convicted of concealing or undervaluing his chattels was to be forfeiture of the latter, `and his body is to be placed in our prison until it is delivered by us’.146  The king’s pleasure, or displeasure, cast others into gaol, for instance Thomas of Moulton, imprisoned in Rochester Castle in 1208 for failing to pay his debts to the king,147 or William de Kame and Roger de Mora, who paid 100 marks and fifteen marks respectively in 1214 for release from prison and recovery of their lands.148  Moulton was probably sentenced in the court of the exchequer, but there is no evidence for legal process in the other cases, any more than there is for the treatment of English Jews, arrested en masse in 1210 and imprisoned in Bristol Castle.  The latter’s captivity was the prelude to violent financial oppression; for the thieves and robbers who were seized and locked up following a peace-keeping edict issued by Hubert Walter in 1195, not to be freed unless by the king or the justiciar, it may well have been the prelude to execution.149

 

In fact chroniclers at both Canterbury and Furness recorded that Jews, too, perished during this campaign of extortion,150 which may also have been what the author of the so-called `Invectivum contra regem Johannem’, written only a few years after that king’s death, had in mind when he alleged that John `cruelly poured out the blood of many innocent people and deprived many of bodily light (luce corporali)’.151  Angevin government was probably not in fact unduly bloodthirsty, but there are still cases which show that those who offended it might risk their lives by doing so.  The case of Arthur, as a rival for the throne, was perhaps an exceptional one, but the fates of Thomas Becket, of William FitzOsbert, hanged in 1196 on the orders of Hubert Walter following riots in London, and later of Matilda and William de Briouze, starved to death in prison in 1210, of Geoffrey of Norwich, a justice of the Jews who died of ill-usage, perhaps in Nottingham Castle, after falling under John’s suspicion in around 1212,152 and of Peter of Wakefield and his son, hanged at Wareham on the king’s orders in 1213 after Peter’s prophecy that the king would shortly lose his crown had gone unfulfilled, show clearly enough what the consequences of resistance could be. 

 

How readily John’s government might have recourse to violent methods, or at least to the threat of violence, is shown by the king’s response to the earls who refused to sail to France in 1201 unless John conceded them their rights – he immediately demanded their castles153 – and still more by his reaction to England’s being placed under an interdict in 1208.  Initially he encouraged, or at least countenanced, assaults on the clergy (the Barnwell Chronicle referred to clerks suffering through swords and gibbets),154 and then he forbade such attacks, with the hardly less intemperate declaration that if he could lay hands on anyone responsible, `we will have him hanged on the nearest oak’.155  And when civil war broke out in 1215, not only did he reportedly have to be dissuaded from hanging the garrison of Rochester Castle, but he was also able to capture Belvoir Castle by threatening to have its lord (and his prisoner), William d’Aubigné, starved to death if his men did not surrender.156  The menace of physical destruction was sufficiently real to justify its inclusion, if somewhat obliquely, among the practices which Clause 39 forbade except when the legal proprieties were observed.

 

Threats

The recorded tone of John’s government, as well as its actions, was all too often violent and aggressive. Documents issued by the royal chancery, like the regulations of 1199 setting out the fees payable for documents passing under the king’s seal,157 and the decree of January 1215 granting freedom of election to all churches, might invoke the curse of God and the king upon any who infringed them.158  The men summoned to the defence of the realm in 1205 were told that they would be disinherited if they failed to serve,159 while a similar order in 1213 was backed by the threat of social degradation.160  Perhaps in these instances the importance of the business justified harsh measures, but it is also true that seemingly trivial offences could incur less than trivial penalties.  In 1201 the men of Gloucester had to pay forty marks to recover the king’s good will, lost because they did not provide him with the lampreys he had ordered for his visit in late October, while in the same year the failure of the citizens of York to wait upon John when he arrived there, compounded by their refusal to accommodate his crossbowmen, led first to a demand for hostages and then to a £100 fine, again to regain the king’s benevolence.161  No doubt it was the threat of this kind of action which lay behind John’s order to Reginald of Cornhill in 1205 to buy wine for him and send it to Nottingham, `and know that if the wines are not good we will betake ourselves against you for it ...’.162

 

A still more striking example of the linguistic intemperance of which John’s government was capable is provided by the instructions of 1212 which the king sent to Peter des Roches in 1212 for dealing with Philip of Strelley, described as having married a widow without royal licence, that he should `take such amends from Philip that he should stand as an example whereby others would dread to attempt such things against the lord king.’163  In fact there is no evidence that Philip, a royal falconer, suffered in any way as a result of the king’s blood-curdling order, since he was still in the king’s service in 1214 and was apparently regarded as loyal two years later.164  He had already paid twice, in 1200 and 1205, for separate licences to marry a widow in the king’s gift,165 and it is possible that his alleged offence was related in some way to these earlier transactions, though it is no less likely that the allegations against him had simply turned out to be false.  What is clear is that the king’s fury, as he expressed it in 1212, was out of all proportion to the misdeed, whether genuine or not, which provoked it – in 1219 the dower of Philip’s wife was valued at one third of just £5.166 

 

John’s government seems to have expected, or even wanted, to arouse fear.  In May 1213 the sheriff of Somerset and Dorset was ordered to buy oats for the forces prepared to resist French invasion, `as you love us and yourself and your body’,167 and two months later John Wake, a west country landowner, proffered 500 marks to the king `for having his benevolence, and for his body, and for having his land ...’.168  Fear for his body seems to have determined the fate of Nicholas de Kivilly, a merchant who made an agreement with the king in 1205 whereby in return for 240 marks and a barrel of Auxerre wine he would have the management of the Winchester exchange for a year.169  It was the year of the assize of money, entailing a wholesale recoinage, and Nicholas must have hoped for a substantial profit, to the extent that he was prepared to give an extra £100 `so that the fine which he made for having the Winchester exchange may be observed’.170  But something went wrong, so much so that, in the words of his widow recorded in 1224, `for the fear which he had of King John and of William of Wrotham’ (one of the two officials overseeing the enforcement of the assize) Nicholas entered religion,171 and eventually became warden of the recently founded God’s House in Portsmouth.172  It should be said, however, that John’s government hardly needed to utter threats to attain its ends, though it was plainly more than willing to do so.  The measured tone of the incomplete order sent in the autumn of 1212 to Robert of Burgate, one of the custodians of the archbishopric of Canterbury, ordering actions against an unnamed party which were to include the seizure of his children as well as of his land and chattels,173 is just as effective in conveying the ruthlessness of which the king and his agents were capable.  

 

Confusion

Perhaps it is not surprising that a government which so often had recourse to violent methods, and spoke in angry and aggressive terms, should sometimes have become confused about its own intentions.  It was noted above how in 1213 John himself found it necessary, or advisable, to order the justiciar to investigate whether Geoffrey de Lucy had been disseised of the Kentish manor of Newington `by our will or by judgment of our court’, suggesting that he had overlooked, or forgotten, his own charter of 1204 granting the manor to Geoffrey,174 and in June 1215, admittedly in politically uncertain circumstances, he was obliged to order the sheriff of Devon to restore seisin of his lands to Peter FitzOger, given away by the king `because we thought (credidimus) that Peter was against us in the war begun between us and our barons’175 – he had treated Peter as an enemy, apparently on no grounds save his own suspicions, and discovered the truth about him afterwards, or at least what he believed to be the truth – by April 1216, perhaps angered by the king’s earlier actions, Peter had indeed gone into rebellion, and order was given for the second time that his lands should be seized and granted away, albeit to a different beneficiary.176

 

Given such responses on the part of the king, it is not surprising that his agents could be no less high-handed.  In 1201 John gave the Somerset manor of Milborne to Simon FitzRobert, then archdeacon of Wells and later bishop of Chichester.  Simon subsequently granted part of it to Henry of Sandwich, but the sheriff of Somerset seems to have been unaware of any of these transactions, for when an inquest returned that Henry’s holding pertained to Milborne, he treated it as still being a royal estate and ejected its new holder, an action which in due course was countermanded by the king.177  In what may have been a similar case, in 1205 John found it necessary to instruct the sheriff of Hampshire that if Theodoric the German, `our servant’, had had seisin of land at Ringwood `on our order’, but had been dispossessed following the death of the earl of Leicester, who had died without issue in the previous year, he was to be put back in occupation without delay, and whatever had been taken from the property restored.178  In this instance the king seems to have been uncertain as to what Theodoric’s rights in the land in question were, or how he had come by them, which helps to explain why John expected, or required, his agents to account for actions like these.  In 1207 he ordered Falkes de Bréauté to restore his wife’s inheritance to Roger Corbet, apparently a Gloucestershire landowner, but concluded by commending Falkes’s prudence `in that you disseised him and notified us of it’ (De hoc autem quod eum dissaisivis et hoc nobis mandasti tuam commendamus prudenciam).179  In 1213 he ordered the custodians of the bishopric of Ely to restore seisin of his land of `Treueill’ to Ralph de Mora, `and let us know for what reason you have disseised him’.180  Such responses suggest that John did little to distance himself from the often violent actions of his officials, actions which might well have arisen from his own uncertainty of purpose, and as a result shared in the opprobrium which resulted.

 

Something of the way in which John disposed of other men’s lands – or, equally important, was perceived as disposing of them – can be seen in the litigation, extending over several years, between John de Vautort (probably a kinsman of the Vautorts who held the Cornish barony of Trematon) and Robert de Beauchamp (as lord of Hatch Beauchamp a west country magnate) over the manor of Shepperton in Middlesex.  Proceedings began in 1225 under Henry III but were principally concerned with events in the previous reign.181  The overlord of Shepperton was the abbot of Westminster, but the manor had been held in fee-farm since the early twelfth century, and Vautort claimed to be its lord as the heir of his father, another John, and of his elder brother, Richard, who had both held it.  Beauchamp’s response, that his opponent’s claim had been shown to be baseless during John’s reign, when an inquest of knights, held while he was himself a ward in the custody of Hubert de Burgh, found that the elder John de Vautort had no right in the land, which was therefore returned to de Burgh, was in turn disputed by John the younger, who asserted that his father had lost Shepperton not because of any sworn inquest but through the will of the king, whereby he had been disseised (de voluntate domini Johannis regis disseisitus fuit).  And he then described how Richard de Vautort had gone to John and persuaded the king that he had acted unjustly, with the result that he recovered possession of Shepperton, and held it until the outbreak of war, when Beauchamp ejected him.  This was roundly denied by Beauchamp, who said that in fact he had been overseas, as a hostage for the payment of Hubert de Burgh’s ransom, negotiated following his capture by the French at Chinon in 1205 and obviously not fully paid for several years, since in 1215 – in inicio guerre – Richard de Vautort was able to tell Hubert that Beauchamp had died, and for a payment of 200 marks persuaded him to put him in possession of Shepperton.  However, at what must have been about the same time, Beauchamp returned to England, very much alive, whereupon the king and his justiciar (as Hubert had become by 25 June 1215), finding that they had been deceived (quia decepti fuerunt), once more awarded him seisin of the disputed property.

 

Some elements in this story can be confirmed from other sources.  Robert de Beauchamp was probably in the wardship of Hubert de Burgh by 1202,182 and remained so until at least 1214.183  Moreover he was indisputably held captive in France, since in 1209 a Rouen merchant was granted a safe conduct to come to England to collect or raise money to pay for his release.184  That John and Richard de Vautort did indeed obtain possession of Shepperton in 1215 is shown by the king’s having granted it to them on 27 July, when it was said to be in the justiciar’s hand,185 though the award may have been somewhat conditional, perhaps upon Beauchamp’s confirmation of it when he came of age – another action brought in 1225 for land in Shepperton, this time by one John of Laleham, was non-suited when the defendant successfully pleaded that Laleham had been admitted to the property by Richard de Vautort, who had only the custody of it (non habuit inde nisi balliam) through Sir Hubert de Burgh.186  But although litigation between Beauchamp and Vautort was still in progress five years later, the Beauchamps could not be dislodged, and they held Shepperton well into the fourteenth century.187  That seems appropriate, since what supporting evidence there is suggests that Robert de Beauchamp’s pleadings were essentially truthful, and that the claims and actions of the Vautorts were disingenuous when not actively dishonest.  Where the two parties were in basic agreement was in their accounts of King John’s treatment of them.  Vautort clearly thought there was nothing improbable about his assertion either that he had been disseised by John or that he had been able to persuade him to restore him to possession - many such orders were given in July 1215, and since Richard de Vautort was certainly in rebellion after that date,188 he could plausibly have presented himself as a man with a claim on the king’s justice in the summer of 1215. The same impression of impulsiveness is conveyed by Beauchamp’s account of the king and justiciar giving him seisin of Shepperton (without a judgment, as the case is recorded) when they learnt that they had been taken in – it is easy to imagine a fine display of indignatio on John’s part, or even of outright ira.

 

Responses

The Barnwell chronicle noted a wide-ranging disseisin of ecclesiastics in 1208,189 and the Waverley annalist, in his account of the events of 1215 (admittedly written at least ten years later), stated that in his years of misrule John had `disinherited some men without the judgment of their peers, he condemned many to a very hard death ... so to him a tyrannical will stood for law ...’.190  The offences covered by Clause 39 were certainly capable of impinging on the fortunes, and resources, of monasteries, and especially those of the Cistercians, but their chroniclers usually contented themselves with generalised denunciations of government excesses, so that it is in the records of that government that the evidence for its activities, and thus for what contemporaries regarded as its abuses and malpractices, is mostly to be found.  Those records are full of gaps, and in any case the personal character of John’s government means that many of its actions were not formally recorded.  But despite these difficulties, which make quantification impossible, it seems likely that the level of demands and penalties, reinforced by threats, rose markedly in the later years of John’s reign.191  One response, exemplified by the conspiracy of 1212 against the king’s life, was outright resistance, but there are also signs of a deliberate resort to legalism to counter the perceived unlawfulness of much that was done by the king, or in his name, and some of this anticipated the stipulations of Clause 39.  Thus in 1211 Robert de Berkeley, one of the great men of Gloucestershire, proffered a fine of 2000 marks for some undefined offence, and a further 100 marks `for having his reasonable judgment by his peers’192 – Robert must have felt that he had been ill-used, and that such a judgment represented his best chance of redress. 

 

The arrival, and subsequent influence, of Archbishop Stephen Langton may have reinforced traditional convictions that administrative actions affecting the lives, limbs and property of the king’s free subjects could only be taken on the authority of a formal judgment in a properly constituted court.  It is possible that his many years of residence in France led to the archbishop’s comparing John unfavourably with Philip Augustus, who seems to have been careful to proceed by judgment against his adversaries, as, indeed, he did against John himself.193  But his theological learning would in any case have steered Langton in that direction, for he maintained in his writings that although kings should be obeyed, as St Paul had taught, they could only command obedience when they acted within the constraints of law, which was itself seen in terms of due process.194  If a king wishes to kill someone, for instance, `without judgment and unjustly’ (sine sententia et iniuste), and his subjects know that this is so, they are bound to release the condemned man.  It was in keeping with this outlook that, as noted above, when John prepared to attack his opponents in the north of England in the autumn of 1213, Langton twice warned him against acting without first obtaining a judgment in his court, while by March 1215 the same principle was also being upheld in Rome, with Innocent III urging king and barons to reach an agreement, and if that proved impossible then `the dissension which has arisen should be concluded in his court by their peers according to the customs and laws of the kingdom ...’.195  Unable to do without the pope’s support, John himself felt obliged to subscribe to these conditions, on 10 May 1215 conceding to his adversaries – in words anticipating those of Clause 39 – that `we will neither arrest nor disseise them or their men, nor will we go upon them by force or in arms, unless by the law of our kingdom or by the judgment of their peers in our court ...’.196

 

John was playing for time, not least by offering terms which he must have known the barons would not accept, including as they did a role for his own ally, the pope, as the final arbiter.  Anybody who doubted his insincerity would have been disabused when only two days later he commanded sheriffs throughout England to seize all the lands of his enemies (inimicorum nostrorum) and to dispose of their chattels to his best advantage,197 while on 14 May he began to grant away the estates of named enemies, giving them to supporters of his own – the earls of Gloucester, Oxford and Hereford were the first to be treated thus.198  This process soon came to a halt, when the baronial capture of London on 17 May left John with no alternative but to negotiate with the rebels, while in the immediate aftermath of the granting of Magna Carta a large number of grants were made restoring rights or lands to men who claimed to have been deprived of them.199  The beneficiaries were mainly tenants-in-chief, but some were men of lower rank, again demonstrating how deeply the king’s actions could penetrate into landowning society.  A writ sent to the sheriff of Huntingdonshire on 24 June 1215 shows John correcting what had probably been a typical act of dispossession, by ordering the restoration of their lands in the manor of Godmanchester to thirteen tenants of Earl David of Huntingdon, all of whom had been disseised of them `by our will and without judgment’ when their lord came under suspicion of involvement in the conspiracy of 1212 against the king.200

 

The outbreak of civil war demonstrated John’s propensity to dispose of other men’s lands in ample measure, resulting as it did in an intensified use of the methods condemned by Clause 39, and above all in a massive redistribution of lands taken from the king’s enemies.and bestowed upon his supporters.  Characteristically, these grants were usually made during pleasure, suggesting that the king intended them to act as sureties for the loyalty of the men to whom he made them, although this also had the advantage of making it easier for the king to grant them back if it became politic to do so.  At the same time his actions convey the same impression of impulsiveness as many of John’s earlier actions – Warin FitzGerold, a Somerset baron, royal chamberlain and loyalist who had supported John at Runnymede itself, was disseised when war broke out because `he did not serve the lord king as well as he should’;201 even the appearance of lukewarmness, or simply uncertainty, was taken for hostility, which in Warin’s case it duly became, since he eventually joined the rebels.  They also show the king continuing to act on the principle that justice entailed favouring his friends at the expense of his enemies.  Robert Mansel had been litigating since at least 1200 against first Richard and then Hugh of Lotherton over a knight’s fee in Tilton, Leicestershire;202 in March 1216 the fact that Mansel had joined the rebels (est cum inimicis nostris) provided John with grounds for awarding the land to Lotherton `as his right’.203

 

The civil war which showed the king continuing to employ the methods with which he had raised money and imposed discipline throughout his reign also exhibited their results, in that many of the rebels who have been discussed in this commentary had been the victims of disseisin or other abuses of power.  Some of them, especially northern lords like Peter de Brus, Hugh Malebisse, Richard de Umfraville and Roger de Montbegon, might well have rebelled anyway, carried into or kept within the ranks of the king’s enemies by regional loyalties transcending their personal grievances.  But the actions of others among the king’s enemies, men like Richard Gubiun, William Aguillun, Hugh Grassus, Henry de Pomeray, William FitzRoscelin and Matthew of Clevedon, all of whom are noted above as having been disseised at some point in John’s reign, inevitably prompt speculation as to whether they would have rebelled had it not been for John’s arbitrary treatment of them.  The undeniable fact that the quality of justice done in the royal courts was often, perhaps even usually, high, can have been little consolation to such men if legal process was simply going to be short-circuited by executive action, or unduly influenced, even interfered with, by a king who repeatedly showed himself to be violent, exacting and partial.  So widespread was the resentment provoked by John’s disregard, or manipulation, of the forms of law that it may have infected even his own justices, some of whom fell under suspicion of disloyalty at the end of his reign.  Clause 39 aimed to subject intrusions of policy and personality to the constraints of due process.  By doing so it proclaimed, and helped to install, regularity, routine and impartiality as qualities fundamental to the administration of justice, while in the longer term it set in motion developments which resulted in law ceasing to be no more than an agency of government.

1

J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 427.

2

Notably by Holt, Magna Carta, 328-30, and id., Magna Carta and medieval government (1985), 195-6.

3

PR 7 John (1205), 85

4

On this issue I have followed F.M. Powicke, `Per iudicium parium vel per legem terre’, H.E. Madden (ed.), Magna Carta commemorative essays (1917), 96-121.

5

Holt, Magna Carta and medieival government, 243.

6

See R.C. Van Caenegem, Royal writs in England from the Conquest to Glanvill, Selden Society 77 (1959 for 1958-9), 19-23.

7

L.J. Downer (ed. amd trans.), Leges Henrici Primi (Oxford, 1972), 134-5.

8

F.M. Stenton, The first century of English feudalism (2nd edn., Oxford, 1961), e.g. 55, 61 n.6, 91 n.5.

9

PR 2 Richard I (1190), 101.

10

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 347.

11

R.W. Southern, Medieval humanism and other studies (Blackwells, Oxford, 1970), 231.

12

W.Stubbs (ed.), Chronica Magistri Rogeri de Houeden, 4 vols. (Rolls Series, 1868-71), iv, 157.

13

F. Liebermann (ed.), Die Gesetze der Angelsachsen, 3 vols. (Halle, 1903-16), i, 636.

14

R.V. Turner, Judges, administrators and the common law in Angevin England (1994), 199-213.

15

R.V. Turner, The English judiciary in the age of Glanvill and Bracton, c. 1176-1239 (Cambridge, 1985), 169-71.

16

Holt, Magna Carta and medieval government, 194.

17

Holt, Magna Carta, 123, 126-34.

18

E.H. Kantorowicz, The king’s two bodies: a study in medieval political theology (Princeton, 1957), 96-7.

19

Turner, Judges, administrators and the common law, 253-4 (following Bracton, De Legibus).

20

G.D.G. Hall (ed. and trans.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 2.

21

See Southern, Medieval humanism, 253-4; D. Crouch, William Msrshal: knighthood, war and chivalry, 1147-1219 (2nd edn., 2002), 97-8.

22

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 123.

23

Holt, Magna Carta, 89-92.

24

E. Amt and S.D. Church (eds. and trans.), Dialogus de Scaccario (Oxford, 2007), 91.

25

Liebermann, Gesetze der Angelsachsen, i, 635.

26

J. Stevenson (ed.), Chronica de Mailros, Bannatyne Club 49 (1835), 117-18.

27

H.R. Luard (ed.), `Annales de Waverleia’, Annales monastici ii (Roll  Series, 1865), 282.

28

British Library, MS Cotton Vespasian E.iii, fol. 175v.

29

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1227 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 136.  For this case see Holt, Magna Carta, 202-3.

30

Rot.Ob.Fin, 84

31

Curia Regis Rolls iv, 1205-1208 (1929), 42-3.

32

Rot.Lit.Claus. i, 168.

33

Ib., 6.

34

Rot.Ob.Fin., 214.

35

Curia Regis Rolls ix, 1220 (1952), 153-4.

36

Chronica Magistri Rogeri de Houeden, iii, 136-7.

37

Turner, Judges, administrators and the common law, 25-7.

38

Glanvill, 102-3.

39

T.D. Hardy (ed.), Rotuli chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 98.

40

Curia Regis Rolls ii, 1201-1203 (1925), 147.

41

G. Garnett, `The origins of the crown’, J. Hudson (ed.), The history of English law: centenary essays on “Pollock and Maitland”’ (Oxford, 1996), 171-214.

42

Rot.Lit.Claus. i, 87.

43

Rot.Chart., 207.

44

K. Leyser, Rule and conflict in an early medieval society: Ottonian Saxony (1979), 35.

45

A.C. Lawrie, Annals of the reigns of Malcolm and William, kings of Scotland, A.D. 1153-1214 (Glasgow, 1910), 115.

46

See, especially, J.E.A. Jolliffe, Angevin kingship (2nd edn., 1963), Chapter 4.

47

For this case see Curia Regis Rolls ix, 332-3; also Curia Regis Rolls viii, 1219-1220 (1938), 165, 352-3.

48

PR 32 Henry II (1186), 197.

49

F.W. Maitland (ed.), Bracton’s Note Book, 3 vols. (1887), ii, no 769 (pp. 586-8).

50

Calendar of inquisitions post mortem i (1904), no. 72.

51

PR 26 Henry II (1180), 135.

52

Chronica Magistri Rogeri de Houeden ii, 41; R.C. Johnston (ed. and trans.), Jordan Fantosme’s chronicle (Oxford, 1981), 100-1, 136-7.

53

PR 22 Henry II (1176), 169, 174.

54

PR 24 Henry II (1178), 111.

55

PR 28 Henry II (1182), 19.

56

PR 14 Henry II (1168), 28.

57

PR 21 Henry II (1175), 69.

58

PR 26 Henry II (1180), 57.

59

PR 23 Henry II (1177), 94.

60

W. Stubbs (ed.), Gesta Regis Henrici Secundi Benedicti Abbatis, 2 vols. (Rolls Series, 1867), ii, 76.

61

R.C. Van Caenegem (ed. and trans.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), no. 489 (pp. 533-4).  Other examples of Henry II’s involving himself in the proceedings of his court include nos. 360, 371, 377, 405, 429, 558.

62

P.A. Brand, The making of the common law (1992), Chapter 4.

63

D.C. Douglas and G.W. Greenway (eds.), English Historical Documents: 1042-1189 (2nd edn., 1981), 411 – reference provided by Louise Wilkinson.

64

For some comments see Holt, Magna Carta and medieval government, 82-3.

65

Gesta Regis Henrici Secundi Benedicti Abbatis, ii, 72.

66

Curia Regis Rolls, temp. Rich. I – 1201 (1922), 285; Rot.Ob.Fin., 7.  The date is suggested by PR 6 Richard I (1194), 3, 4, 8, 14, references to farms formerly held by Turpin, and to the sale of his chattels.

67

Turner, English judiciary, 64.

68

PR 2 Richard I (1190), 14 (Murdach), 67-8 (Reiner), 111 (Arden).

69

Ib., 67.

70

PR 6 Richard I (1194), 118.

71

Ib., 124-5 (Lancashire), 169-70 (Devon).

72

Ib., 66 (Hastings), 135 (Umfraville).

73

Ib., 182; PR 9 Richard I (1197), 166.

74

Ib., 233.

75

Holt, Magna Carta, 181; R.V. Turner, The king and his courts: the role of John and Henry III in the administration of justice, 1199-1240 (Cornell, 1968), 183-4.

76

D.M. Stenton, English justice between the Norman Conquest and the Great Charter, 1066-1215 (1965), 95.

77

PR 9 John (1207), 159.

78

Rot.Chart., 219.

79

T. Madox, Formulare Anglicanum (1722), no. dxxi (p. 300).

80

Rot.Ob.Fin., 226.

81

Ib., 216.

82

PR 8 John (1206), 32.

83

PR 1 John (1199), 16.

84

PR 7 John (1205), 261.

85

Rot.Lit.Claus. i, 485.

86

Rot.Lit.Pat., 56.

87

Ib., 76.

88

F.W. Maitland (ed.), Three rolls of the king’s court in the reign of King Richard the First, A.D. 1194-1195, Pipe Roll Society 14 (1891), 69.

89

Rot.Lit.Claus. i, 200 (Braybrooke), 260 (Hastings).

90

Curia Regis Rolls iii, 1203-1205 (1926), 287.

91

Rot.Lit.Claus. i, 55.

92

PR 9 John (1207), 124.

93

Rot.Lit.Claus. i, 90, 107; Rot.Ob.Fin., 392, 437.

94

Details mostly from Curia Regis Rolls vi, 1210-1212 (1932), 151; vii, 1213-1215 (1935), 144-5.  Gor Gibwin see E. King, Peterborough Abbey: a study in the land market (Cambridge, 1973), 129.

95

PR 2 John (1200), 62.

96

Rot.Lit.Claus. i, 16.

97

Ib., 31.

98

PR 9 John (1207), 178.

99

PR 12 John (1210), 14; G.W.S. Barrow, The Anglo-Norman era in Scottish history (Oxford, 1980), 115-16, 182.

100

PR 8 John (1206), 183.

101

PR 11 John (1209), 4.

102

Rot.Ob.Fin., 334; PR 8 John (1206), 208; Rot.Lit.Claus. i, 49, 54.

103

PR 13 John (1211), 12; Turner, Judges, administrators and the common law, 194.

104

Rot.Lit.Claus. i, 158.

105

Ib., 96.

106

PR 6 John (1204), 183.

107

PR 12 John (1210), 98; PR 13 John (1211), 174.

108

Jolliffe, Angevin Kingship, 84-5.

109

Chronica Magistri Rogeri de Houeden iv, 152.

110

PR 6 John (1204), 243; PR 7 John (1205), 249; Rot.Lit.Claus. i, 50.

111

Rot.Lit.Claus. i, 167.

112

Curia Regis Rolls xiii, 1227-1230  (1959), no. 59 (p. 13); Rot.Ob.Fin., 320; Rot.Chart., 158-9; PR 8 John (1206), 33; PR 13 John (1211), 19.

113

PR 2 John (1200), 86; PR 3 John (1201), 18; Rot.Ob.Fin., 103-4.

114

Curia Regis Rolls viii, 1219-1220  (1938), p. x; Rot.Ob.Fin., 564-5.

115

Rot.Ob.Fin., 419.

116

Curia Regis Rolls iii, 170, 337 (Capra), 285, 337 (Amundeville).

117

Rot.Lit.Claus. i, 54; Rot.Ob.Fin., 319

118

PR 9 John (1207), 53.

119

Rot.Lit.Claus. i, 126.

120

Ib., 87; PR 9 John (1207), 177.

121

Rot.Ob.Fin., 379-80.

122

Ib., 515.

123

Ib., 223.

124

PR 16 John (1214), 120; Book of Fees i, 120.

125

Rot.Ob.Fin., 48.

126

PR 12 John (1210), 99; Book of Fees ii, 1408.

127

PR 13 John (1211), 93.

128

PR 12 John (1210), 168-9.

129

Rot.Ob.Fin., 329.

130

Rot.Lit.Pat., 80.

131

PR 9 John (1207), 164; Rot.Ob.Fin., 373.

132

Details from PR 13 John (1211), 106, 148; PR 14 John (1212), 41, 43; PR 16 John (1214), 123; Curia Regis Rolls vi, 381; Curia Regis Rolls vii, 81-2, 140-1, 204.

133

H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum, 3 vols. (Rolls Series, 1886-9), ii, 82-3.

134

Rot.Lit.Claus. i, 60.

135

Jolliffe, Angevin Kingship, 116.

136

Rot.Lit.Claus. i, 85.

137

Rot.Ob.Fin., 372.

138

PR 9 John (1207), 71.

139

PR 10 Richard I (1198), 195.

140

Rot.Lit.Pat., 100

141

Lambeth Palace Library MS 1212, fol. 12v – I owe my knowledge of this document to Nicholas Vincent.

142

Rot.Lit.Claus. i, 165-6

143

Bracton’s Note Book ii, 667.

144

T. Rymer (ed.), Foedera I:i  (1816), 107-8.

145

Rot.Lit.Claus. i, 149.

146

W. Stubbs (ed.), Select charters ... from the earliest times to the reign of Edward the First (9th edn., ed. H.W.C. Davis, Oxford, 1913), 278-9.

147

Holt, Magna Carta, 110.

148

PR 16 John (1214), 7, 120.

149

Stubbs, Select charters, 257-8.

150

W. Stubbs (ed.), The historical works of Gervase of Canterbury, 2 vols. (Rolls Series, 1879-80), ii, 105; R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II and Richard I, 4 vols.  (Rolls Series, 1884-9), ii, 512.

151

British Library, MS Cotton Vespasian E.iii, fol. 175v.

152

S. Painter, The reign of King John (Baltimore, 1949), 270-2.

153

Chronica Magistri Rogeri de Houeden iv, 160-1.

154

W. Stubbs (ed.), Memoriale fratris Walteri de Coventria, 2 vols. (Rolls Series, 1872-3), ii, 200; more generally, C.R. Cheney, Innocent III and England (Päpste und Papsttum 9, Stuttgart, 1976), 309-10.

155

Rot.Lit.Claus. i, 111.

156

Rogeri de Wendover ... flores historiarum ii, 150, 214.

157

Rymer, Foedera I:i, 75-6 – I owe this reference to Nicholas Vincent, who has also drawn my attention to John’s grant of the patronage of Thorney Abbey to the bishop of Ely on 15 January 1215 as another example of a royal anathema, Rot.Chart., 204.

158

Ib., 126-7.

159

Rot.Lit.Pat., 55

160

Rogeri de Wendover ... flores historiarum ii, 66-7; Memoriale fratris Walteri deCoventria ii, 209.

161

PR 3 John (1201), 46, 159.

162

Rot.Lit.Claus. i, 52.

163

Rot.Ob.Fin., 523-4; Holt, Magna Carta, 198, 200-1.

164

Rot.Lit.Claus. i, 181, 247.

165

Rot.Ob.Fin., 86, 329-30.

166

Book of Fees i, 287.

167

Rot.Lit.Claus. i, 134.

168

Rot.Ob.Fin., 482.

169

Ib., 303.

170

Ib., 317.

171

Curia Regis Rolls xi, 1223-1224 (1955), no. 2763 (pp. 555-6).

172

Ib., no. 1383 (p. 281).

173

Rot.Lit.Claus. i, 216.

174

Rot.Chart., 137.

175

Rot.Lit.Claus. i, 216.

176

Ib., 264.

177

Rot.Chart., 88; Rot.Lit.Claus. i, 59.

178

Ib., 50.

179

Ib., 90; Book of Fees i, 38.

180

Rot.Lit.Claus. i, 138.

181

Curia Regis Rolls xii, 1225-1226 (1957), no. 356 (p. 65) is the principal source for this case.

182

Suggested by PR 4 John (1202), 96.

183

PR 16 John (1214), 106.

184

Rot.Lit.Pat., 89.

185

Rot.Lit.Claus. i, 223.

186

Curia Regis Rolls xii no. 861 (pp. 176-7).

187

Victoria County History of Middlesex iii (1982), 5.

188

Rot.Lit.Claus. i, 329.

189

Memoriale fratris Walteri de Coventria ii, 199

190

`Annales de Waverleia’, 282; A. Gransden, Historical writing in England, c. 550-c. 1307 (1974), 415.

191

Jolliffe, Angevin Kingship, 131-2; Holt, Magna Carta, 196-7.

192

PR 14 John (1212), 144-5.

193

Jolliffe, Angevin Kingship, 313-14; J.W. Baldwin, The government of Philip Augustus: foundations of French royal power in the middle ages (Berkeley, 1986), 264-6.

194

See D.L. D’Avray, `”Magna Carta”: its background in Stephen Langton’s academic biblical exegesis and its episcopal reception’, Studi Medievali 3rd series 98 (1997), 423-38; J.W. Baldwin, `Master Stephen Langton, future archbishop of Canterbury: the Paris schools and Magna Carta’, English Historical Review 123 (2008), 811-46.

195

C.R. Cheney and M.G. Cheney (eds.), The letters of Pope Innocent III (1198-1216) concerning England (Oxford, 1967), nos. 1003 (p. 167), 1013 (pp. 272-3).

196

Rot.Lit.Pat., 141.

197

Rot.Lit.Claus. i, 204.

198

Ib., 200.

199

Holt, Magna Carta, 360-1.

200

Rot.Lit.Claus. i, 216; Jolliffe, Angevin Kingship, 329 and n.2.  For the victims see K.J. Stringer, Earl David of Huntingdon: a study in Anglo-Scottish history (Edinburgh, 1985), 50 – I owe this reference to David Carpenter.

201

Curia Regis Rolls x, 1221-1222 (1949), 279.

202

F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols. (Record Commission, 1835), i, 376; Rot.Ob.Fin., 97; PR 8 John (1206), 8.

203

Rot.Lit.Claus. i, 256.

Referenced in

Papal Letters of 19 March (Features of the Month)

Clause 60 (The 1215 Magna Carta)

John grants freedom of election (The Itinerary of King John)

'by the law of our realm or by judgment of their peers' (The Itinerary of King John)


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Original Latin

XL

Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.

40

We will not sell, or deny, or delay right or justice to anyone.

Audio commentary

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Commentary for academic researchers

Kingship and justice

Like Clause 39 before it, Clause 40 stemmed from, or at any rate reflected, the opening clause of the `Unknown Charter’, in the second half of which the king was represented as agreeing not to take anything for justice, and not to perpetrate injustice.1 When the Articles of the Barons were drawn up in the early summer of 1215, the contents of that single clause appeared as two discrete ones, with Number 30 consisting of a completely impersonal declaration, looking as much like a statement of intent as an undertaking, that `right’ (jus) was not to be sold, delayed or withheld. But in Magna Carta the king speaks as himself, making an emphatic use of the royal plural to proclaim that he –and he alone, the clause is to apply to no-one else2 – will not sell, defer or deny right or justice (rectum aut justiciam), and that there will be no exceptions in this – the benefits of the clause will be refused `to nobody’ (nulli).3 The two terms used to define the substance of the clause were probably chosen with some care (rectum makes its only appearance in Magna Carta at this point) to demonstrate that it covered both the formal, rule-bound, justice dispensed by the royal courts, and that less clearly defined fairness or equity which the king was recognised as being especially able to provide as an alternative to it.4

That justice, too, was regarded as being an essential responsibility of, and adjunct to, royal authority, and one which, moreover, was in principle available to all the king’s subjects. Clause 39 had explicitly restricted its application to free men. Clause 40 did not prescribe a similar limitation, and indeed, by its addition of the single word nulli, appears to have deliberately avoided doing so. The difference may have arisen from no more than an awareness that the king was the fount of justice for everyone in his realm, and a feeling that the clause ought to reflect this fact. Or it may have been more specifically related to the king’s role in the administration of criminal justice, which affected the unfree at least as much as the upper levels of society. But when all allowances have been made for the potential scope of Clause 40, it seems likely that in practical terms its application was closely akin to that of Clause 39, and may even have been more limited in its basic thrust. For whereas Clause 39 met the needs, and therefore presumably responded to the demands, of all ranks within free society, and the evidence is certainly sufficient to show that free men and women of every social rank needed the protection against abuses of power which the succeeding clause afforded, the surviving records nevertheless suggest strongly that its main purpose was to protect barons and knights, that is, the upper ranks of society, against King John’s exploitation of his judicial authority.

The twelfth century was a great age of legal development throughout Europe. The papacy led the way, but was soon followed by kings and princes affected by papal claims and demands, with the result that by the time of Magna Carta there were increasing numbers of centrally-directed courts, both lay and ecclesiastical, which steadily became more professionally administered, more rational in their procedures, and more authoritative in their judgments, than any courts had been for many centuries. This process arguably went further in England than in any other country except possibly Sicily. Needing to restore order after Stephen’s reign, and keenly aware of the financial gains to be made from the operations of his courts, Henry II’s control of a uniquely powerful apparatus of government enabled him to set in motion the creation of a judicial system of exceptional range and versatility, one which owed its effectiveness both to its widespread acceptance among members of free-born society, who made ever-increasing use of the services it provided, and also to the coercive power of the king’s government which enforced, and reinforced, the decisions of its courts.

Those two elements were not exactly in opposition – the royal courts would have been useless, and little-used, had their decisions been incapable of enforcement. But the situation was continuously complicated by the double-faced nature of royal justice, which meant that the king’s interests were by no means always those of his subjects where the administration of justice was concerned. Although the provision of justice was traditionally one of the fundamental elements in kingship, sworn to at the beginning of every reign in the coronation oath, the system dispensing it was the king’s, allowing him to regard it as effectively his personal property, to be controlled and manipulated as he pleased. The treatise known as Glanvill, written in the last years of Henry II’s reign, was at pains to deny that `favour and partiality’ might `drive any man away from the threshold of judgment.’5 Richard FitzNigel, in his Dialogus de Scaccario, begun in 1177 and finished during the next ten or twelve years, also exclaimed indignantly against the very possibility of justice being sold for money, but acknowledged (appropriately, given his fiscal terms of reference) that the king was willing to receive payment for hastening justice, and also that `he shows the fullness of justice to some individuals for free, on account of services rendered or out of charity, whereas, being only human, he refuses to favour others for love or money ...’.6  Henry II exercised, in fact, a very wide discretion in matters relating to justice, so wide that he might well have found Clause 40 of Magna Carta incomprehensible, or at any rate intolerable, believing that nobody had the right to place restrictions on his ability to sell, defer or deny justice as he saw fit. But even during his reign, and still more by the beginning of John’s, an ever-growing demand for the benefits of royal justice had come to be accompanied by criticism of the abuses seen as accompanying its provision, of the way it could be disposed of at the king’s pleasure, and of the opportunities it afforded for corruption and misuse, arising from the avarice and pursuit of power of the men who administered it. What in the Dialogus and Glanvill may have been little more than lip-service to the notion of disinterested justice, had become an increasingly serious issue some twenty years later.

 

Risks and opportunities

Accusations of corruption levelled against English judges in the years on either side of 1200 were often linked to complaints about their humble origins, implying that poverty made them greedy for money and land, which in turn led them into dishonourable courses. It is true that few of them were of noble birth, but otherwise their critics exaggerated the obscurity of their backgrounds – in fact most of them came from knightly families.7 A good example is Osbert FitzHervey, whose alleged misconduct on the Bench brought him a place in the chronicler Ralph of Coggeshall’s vision of hell, mocked by demons for his readiness to take gifts from plaintiffs and defendants alike, and appropriately condemned to an eternal diet of burning coins.8 Osbert may well have been greedy, but it was not being born into poverty that made him so, since he was the nephew of one justiciar, Ranulf de Glanville, and the brother of another, Archbishop Hubert Walter, and came from a solidly-based Suffolk landed family. It was accepted that the wheels of justice and government needed oiling, and that presents of money were bound to be offered, and taken, for that purpose. John of Salisbury tied himself into knots trying to define what the limits should be in this process, and in the end could only prescribe moderation, writing of royal justices (proconsules) that they `are neither to refrain from gifts totally nor to exceed the mean greedily ... it requires an inhuman strength to accept from no one; but to accept indiscriminately is most vile ...’. He also recommended, optimistically, that the taking of presents should be limited to food and drink.9 In fact it appears to have been taken for granted that bribes would be tendered, and received, at every level of government. The satirist Walter Map exempted the exchequer (which in Henry II’s reign was still at the centre of judicial as well as financial administration) from accusations of ill-doing, claiming that it was incorruptible because it was continually under the king’s eye, but asserted that justices itinerant, and other officials in the localities, could always be led astray by gifts (premia pervertunt eos).10

Despite this background of seemingly widespread venality, the English courts under Henry II and his sons were seldom charged with anything like the corruption notoriously associated with the Roman curia.11  Papal judges delegate in England also seem to have been relatively scandal-free, though allegations of partiality and bribery were recorded,12 and may help to explain the efforts occasionally made to improve standards of conduct in church courts, some of them in terms strikingly close to Clause 40. In 1186, for instance, synodal canons issued by Bishop Hugh of Lincoln included the order that `nothing is to be given or accepted for doing or hastening justice’,13 while in 1213 or 1214 a canon originally promulgated by a legatine council at York was tightened up at Canterbury to forbid `that anything be accepted for doing, deferring or hastening justice ...’.14 The phrasing of this canon brings it so close to Clause 40 as to raise the possibility that members of Stephen Langton’s entourage drafted the latter as well as the former, but it would probably be safer to regard the similarity as evidence that the administration of justice was faced by identical problems in both secular and ecclesiastical courts.

Nobody suggested that the pope was personally corrupt, at worst he could only be criticised for failing to eradicate the shortcomings and abuses of the system which operated in his name. It was less easy for the king of England to detach himself from the workings of his own government in matters of law, precisely because both tradition and deliberate policy emphasised his own responsibility for them. The words of the Dialogus cited above were mirrored by those of the legal treatise Glanvill, describing the grand assize as `a royal benefit granted to the people by the goodness of the king ...’.15 Where judicial administration was concerned, the king’s justices were avowedly his agents, charged with the promotion of his interests,16 and no effort was made to distinguish between him and them; in the words of a writ reported in the Bench in 1201, `all pleas which are held before the justices of the Bench are understood as being held before the lord king or the chief justiciar’, the latter being the king’s alter ego, acting in his place and with his authority when the former was out of England.17 He presided over a judicial system in whose workings no meaningful distinction could be made between the king, the justices he appointed, and the courts in which both he and they presided. His critics accordingly took the king at his word; shortly after John’s death he was himself denounced for the wrongs done through the gifts wickedly and deceitfully taken by his judges (pro muneribus acceptis inique et fraudulenter iudicancium).18

The judicial system whose workings lay at the heart of Clause 40 operated on the authority, and in the interests, of the king. Despite its shortcomings it was on the verge of becoming capable of administering the impartial justice which was regarded as an essential component of good government, but it could not yet be relied upon to provide such justice because the king was not prepared to lose control of the system’s workings. The basic quality of royal justice, whatever the shortcomings of the men who dispensed it, was seen as high, and demand for it was accordingly very great, as other clauses in Magna Carta demonstrate. Its processes had their inconveniences. It could be slow, and access to it had to be paid for, though the standard rates for the writs which initiated lawsuits were usually very low – 4d. in the late twelfth century,19 6d. by 1215,20 where it stayed for centuries. But these were minor difficulties, of a kind which afflicted every system of medieval justice, and in any case they persisted long after Magna Carta. The fundamental problem was that financial profits which the king’s control of his courts brought him, and the enhancement of power which this gave him, above all through opportunities for patronage and for intervention in the affairs of his leading subjects, were too valuable for him to be willing, or indeed able, to relinquish them. It was, indeed, accepted (by John of Salisbury, among others) that it might be the king’s duty to moderate the strictness of legal procedure when this seemed necessary.21 But the involvement of the Angevin kings in matters of law went far beyond occasional interventions, and had the effect of making the unpredictability of their own personalities a constant factor in the administration of justice, in ways which became increasingly liable to cast doubt on the validity of their actions, even when these were capable of being regarded as acceptable or even laudable.

 

Precedents (1): Henry II

As with so much else, these developments first become clearly visible in the reign of Henry II. The evidence is fragmentary, but sufficient to show him presiding in court on a number of occasions, and taking a close and often decisive interest in what happened there. His conduct in legal affairs did not go uncriticised. Peter of Blois thought he failed to exercise effective control over his justices, who were allowed to fleece the poor,22 and Walter Map made a similar point, allowing that Henry himself was `an acceptable minister of justice’, but regrettably apt to have the wool pulled over his eyes by courtiers and others, who without the king’s knowledge made money hand over fist from the operations of his courts. He was also, Map thought, too ready to follow the advice of his mother, the Empress Matilda, that he should prolong cases indefinitely, with the result that people gave up, or even died, before their business was dealt with,23 while to Gerald of Wales he was `a seller and delayer of justice’.24 Sharpest of all was Ralph Niger, who in an extended diatribe denounced Henry II not only for choosing unworthy men as his justices, but also for his own conduct in abolishing old laws and introducing new ones, and in being inordinately pernickety (cavillantissimus) in the excuses he found for delaying lawsuits, a practice which time and again enabled him to sell the law to those from whom he was himself withholding it.25

The famous record kept by Richard of Anstey of his expenditure during his extended lawsuit (1157-63) for his inheritance illustrates in detail both the delays and the costs potentially incumbent upon litigation, admittedly in ecclesiastical as well as royal courts. On one occasion Richard had to wait thirteen weeks in south-west France to obtain a writ, and his outlays included a round 100 marks to the king, as well as a total of £11 `in gifts, in gold and silver, and in horses’ distributed in the curia regis.26 Richard’s difficulties, and also his doggedness in prosecuting his claims, were doubtless exceptional, but the pipe rolls of Henry II’s reign record many modest payments, often made to justices itinerant, which were avowedly intended to lubricate the machinery of legal practice. Sums ranging from two to five marks were usually given for hastening right or judgment, while just one or two marks normally sufficed to have a case transferred from a county or seigneurial court to a royal one – the latter provided a better commodity, so it was proper that access to it should be paid for.

The amounts paid could be much larger, however, and they might also be added to during proceedings. In 1186 Nicholas son of Robert FitzHarding was recorded as having initially proffered forty marks for hastening judgment over land at `Stanbrige’, but a further ten marks was later added to his debt (postea accrevit), which it took him five years to pay.27 These more substantial payments often involved important people or considerable estates. Thus William de Fécamp proffered twenty marks in 1165 `for hastening justice’ in a plea concerning land which he claimed against the bishop of Winchester, from whom he held three knights’ fees in Hampshire (the debt thus incurred was finally cleared in 1203),28 while in 1172 Robert Malherbe, a Bedfordshire landowner, promised no less than £100 `for hastening justice against Nicholas de Manna over his inheritance in Normandy and England’, a sum which it took him sixteen years to pay.29 Malherbe’s case seems to have been resolved by judicial combat, others were concluded by fines in the king’s court, for which those concerned might have to pay heavily; in 1187 Guy de Vere and his son-in-law Adam undertook to give £80 each to have a land dispute settled there (property-owners in Lincolnshire, they may not have been rich, and were certainly very slow to pay up).30

Although such cases show the king disposing of a valuable commodity in a seller’s market, they do not suggest that in doing so he compromised the quality of what he provided. It is not always possible to be certain that this was so; Andrew Picot’s payment of forty marks in 1170-1 `for having the king’s peace’ has the appearance of a straightforward purchase of a pardon for wrong-doing,31 and the same might be suspected of Robert FitzBrien’s proffer of sixty marks `for quittance of the judgment of [hot] iron in London’, made in 1177 and cleared in the next three years.32 But these could also have been borderline cases, where uncertainty about facts or points of law made it seem reasonable for a litigant or suspect to pay to have the benefit of the doubt. The proffer by John Maltravers, a landowner in Berkshire, Wiltshire and Surrey, of 100 marks (paid off between 1185 and 1188) `that he may be quit of the plea of the appeal of [breach of] the king’s peace, for which his son went to the ordeal of water’ may have resulted from such an outlook. Unfortunately the pipe roll sheds no other light on the appeal, making it impossible to say why John was prepared to pay so large a sum. It seems likely that he was accused of being in some way an accessory to the offence alleged against his son, and may have made his proffer after the latter succeeded in the ordeal, in order to avoid having to follow him into the water. The sheer size of his proffer, however, suggests that the son was convicted, even though the pipe roll is silent on the point, but that one conviction was ultimately thought to be sufficient, especially when the king was offered a material inducement to see the case in that light.33

Hervey Cuterun’s payment of forty marks (made over nearly twenty years from 1177), `for having judgment against Agnes of Dennington for the death of her husband’,34 looks remarkably like an attempt to secure a conviction on charges which might otherwise not have come into court, prevented, perhaps, by the opposition of her kinsmen, whereas the payment of forty marks in 1185 by the Yorkshire baron Robert de Lacy, `that the case concerning his men, who are said to have killed outlaws, may be before the king or the justiciar’,35 could show Robert securing the law’s protection for his men against the kindred of the men slain, for whom their status, which should have deprived them of legal protection, was no deterrent against the pursuit of vengeance. Both cases might have constituted straightforward attempts to buy preferential treatment in court, but each is also capable of being construed otherwise.

The Dialogus explained that those who offered money to have their cases expedited were not called upon to pay until their cases were heard, and that if they lost they were similarly exempted from payment.36 A note in a pipe roll that a litigant making a proffer of this kind `nondum habuit rectum’ may thus be evidence of failure in litigation rather than of the law’s delays. Even so, there can be no doubt that delays took place and that they could be severe, Ranulf de Glanville’s complacent comments on the relative speed of the royal and ecclesiastical courts notwithstanding.37 Bartholomew of Creake, an important subtenant of Earl Hugh Bigod in Norfolk, proffered twenty marks in 1175 `for right over Surfleet’. This was recorded every year until 1188, when the clerk added a note to that year’s pipe roll: `But he has died and he did not have right although he had made many demands for it (multum institisset)’.38 Geoffrey Gibwin, sued by John de Montacute in 1213 for the advowson of Marsh Gibbon church, Buckinghamshire, claimed that an action over that church and other property between his own father and Gervase Paynel during Henry II’s reign had lasted for eleven years.39 The action begun in 1185 by Roger of Sandford, an Oxfordshire tenant of Abingdon Abbey, might have lasted just as long, had it not been discovered in 1192 that the treasury had lost the charters relevant to the case which he had deposited there – understandably, he was pardoned the ten marks which he had proffered for a hearing in the king’s court.40 Although delays so extended were probably unusual, these cases show that speedy justice could not always be counted on, even when the king did not wish to delay proceedings for reasons of his own, and help to explain why litigants were prepared to pay to have their cases heard.

 

Precedents (2): Richard I

Legal administration continued along broadly similar lines under Richard I, though the new king’s greater financial needs, successively for his crusade, his ransom, and his wars in France, may have made him, or those who governed in his name, more willing to exploit it, just as awareness of those needs probably made some litigants more willing to offer money in the hope of obtaining favourable treatment. Although the sums involved were larger, proffers like those of Gilbert of Meppershall, a Bedfordshire landowner who from 1193 owed (but may not have paid) twenty marks `for having right and judgment concerning lands which he claims pertain to his serjeanty which he holds of the king’,41 or James de Ros, who found it expedient to pay £4 in 1194 for lands in Kent which he lost because they were said to have escheated to the king, but which were later found to constitute James’s own inheritance,42 or Roger son of Robert de Conyers, one of the bishop of Durham’s most important tenants in Yorkshire, who was recorded in 1196 as owing forty marks `for having right in the king’s court against his uncle Roger for his father’s land in Hutton Conyers, Norton Conyers, Girsby and Over Dinsdale’, and cleared his debt within two years,43 differed little from many similar payments for justice made under Henry II. King Richard’s absences created new problems, and justified new payments for resolving them. Alan FitzRoland proffered twenty marks in 1195 for land worth £6 in Thenford, Northamptonshire, which he lost to Ralph Murdac `because Alan did not have the king to warrant in Count John’s court at the term prescribed, that is, at the end of three months, and the king was then on his pilgrimage of Jerusalem’, and a year later had to promise a further thirty marks to recover the same property;44 possibly Alan’s case was not as straightforward as his initial proffer implied (his right to vouch the king to warranty was certainly doubtful), but it is just as likely that the deal reflected nothing more complicated than the government’s determination to sell its services as dearly as possible to a man who could afford to pay the asking price (as Alan duly did, clearing his debt in 1198).

Advantage in judicial proceedings involving felony could also be obtained in return for money. In 1192, for instance, Robert of Slaughter, Gloucestershire, proffered ninety-six marks (£64) `for the release of his son who was charged with homicide’,45 a felony of which Glanvill noted that `the accused is not allowed his freedom on giving sureties except as a special royal favour.’46 Clearly that favour could be bought if the price was high enough; Robert cleared his debt in 1199. Similarly in 1196 Alfred the carter, another Gloucestershire man, was allowed to proffer ten marks (paid in the next five years) to be released to pledges after he had been arrested `on suspicion of the death of a man killed in his house’,47 that is, in circumstances which were normally regarded as distinctly prejudicial. Again, it may be that the entries on the pipe rolls sometimes conceal mitigating circumstances. In 1194 Reginald de Tewaden (later entered as William of Dupath), a Cornishman, proffered twenty marks `for having his land and inheritance and that he may not abjure the king’s land because he underwent judgment of hot iron.’48 It is possible that Reginald succeeded in the ordeal, but was obliged to abjure under the assize of Clarendon of 1166 (repeated ten years later under the assize of Northampton) because his reputation was bad, and that behind the proffer there lay a claim that he had been maliciously accused. But the surviving record does not say so, and to outward appearances this, too, was a case which shows how money could obtain favourable treatment from a fiscally hard-pressed government – the debt was cleared in 1199.

Some proffers, indeed, were made on terms hardly distinguishable from attempted bribes, suggesting that the men who made them fully understood how the king’s needs could be exploited to their own advantage. Robert de St Stephen, a Devon landowner, offered twenty marks in 1194 to delay proceedings in a lawsuit over his mother’s estates while he obtained the king’s warrant for them. `And’, the pipe roll continues, `if the lord king warrants him, then he will give forty marks with the aforesaid twenty’. Probably the king did not do so (Richard I was, after all, probably either in captivity in Germany or on campaign in Normandy when the proffer was made), since the debt was enrolled as one of twenty marks, which Robert paid off in the next five years.49 Geoffrey de Mandeville, faced in the same year with a challenge to his inheritance in England and Normandy by Henry de Tilly, proffered 100 marks `for having the judgment of the king’s court’, and undertook to pay a further 400 marks when he obtained seisin of his inheritance.50 (Geoffrey’s son William resorted to similar tactics in 1201, when he proffered 100 marks `for having the record and reasonable judgment of the king’s court’ on the action between his father and Henry de Tilly, and undertook to pay the 100 marks if he lost, but to give 500 if he won – only the lower sum was entered on the pipe roll, for reasons explained by an entry on the 1206 pipe roll on the authority of the justiciar, cancelling the debt `as he could not have right on account of the king’s prohibition’; by then, however, Tilly’s adherence to the French had resulted in Mandeville’s being granted the barony.)51

The heirs of the Devon landowner Robert Foliot proffered eighty marks in 1196 `for having right concerning the whole inheritance of Robert Foliot their grandfather in the king’s court against those withholding it, and for having the land from that inheritance which was seized into the king’s hand’ – they would litigate for some of the estate, no doubt in the hope that their payment would bring them advantage, and simply buy the rest (they eventually paid most, but probably not all, of their proffer).52 In the same year Gilbert de Tours (a tenant in Lincolnshire of the earl of Chester) promised 300 marks `for having the judgment of the king’s court concerning land which he claims from Hamo de Masci, and for having seisin if the judgment of that court gives it to him’, thus in effect bidding for judgment and possession together.53 Ecclesiastics might pay to have the decisions of church courts upheld by the king’s authority. In 1197 William Testard, newly installed in the archdeaconry of Nottingham, gave the king £200 for the reassurance of `having his archdeaconry as it was awarded to him by judges delegate’.54 Supply and demand worked together in these cases, showing how the steadily developing range and sophistication of the royal courts opened up new avenues for the exercise of royal authority, as often as not in response to demands, and payments, by litigants for intervention of this kind.

 

King John: the problem of delay

Their frequent absences overseas meant that under Henry II and Richard I judicial administration usually operated at a certain distance from the person of the monarch. Under King John this increasingly ceased to be the case. Despite his recurrent absences between 1199 and 1204, John also spent some extended periods in England during those of his reign, and in many different parts of it, while after 1204 he was far more often resident in England than not. From the beginning of his reign, moreover, he involved himself closely in the business of his courts, to the extent of creating a court coram rege in 1200 with the intention that it should function under his own direction.55 The evidence that he did so, and for the way this, as well as other courts, operated, is provided by legal and administrative records which survive on a scale unmatched by those of Richard I, let alone Henry II. This could mean that what look like tendencies particular to John’s reign were in fact only continuations, at most intensifications, of ones already developing under his father and brother. The evidence already cited does indeed show that there were grounds for, and expressions of, discontent concerning the administration of justice long before 1199, and it seems likely that the expedients of Richard I’s reign, in particular, set precedents which his successor was happy to learn from and to follow. Even so, an examination of the records of the exchequer – and these, unlike those of the chancery, survive in a well-nigh continuous sequence from 1155 onwards – argues strongly that there was in fact a steady intensification in the fiscal pressure exerted by the king’s government during John’s reign, and that the crown’s exploitation of its judicial powers played a central rôle in this process.

That said, it must be acknowledged that there were complicating factors in all the aspects of the administration of justice covered by Clause 40, and that these can create uncertainties in the interpretation of the surviving evidence which have to be taken into account when assessing the quality, in terms of both merits and shortcomings, of John’s handling of matters relating to law and justice. They do not necessarily show that that handling was faultless, but they sometimes raise doubts as to whether it was truly as unprincipled as it may at first sight appear. The delays which Clause 40 aspired to remedy, for instance, could doubtless be caused by favour or caprice on the king’s part, but they might also result from his absences, a factor whose impact was compounded by John’s interest in justice, and his willingness, even eagerness, to reserve cases for his own consideration. During the period up to the end of 1203, when the king was often in France, along with many of his subjects, lawsuits were frequently held up by grants of protection made to men serving overseas. In November 1201, for example, the newly-appointed seneschal of Gascony and Anjou, Robert of Thornham, received such a grant, with an additional clause ordering that `he is not to be impleaded for any of his tenements which he held in peace when he last crossed the sea in our service, for as long as he shall be overseas in our service at our command’,56 and earlier that year an action of debt brought by a London vintner and his wife against the northern baron William de Mowbray had to be adjourned because William was serving in Normandy.57 By the beginning of 1203 the king’s need for service, and money, had become such that order was given that those who paid scutage rather than cross the Channel should still receive grants of protection, on the grounds that their money was `in the king’s service overseas’ even if they themselves were not.58

John’s desire to hear particular cases caused numerous delays, like the appeal involving the men of William de Warenne and those of Hugh of Folkington which was mentioned almost in passing in 1202, when it was respited `until the lord king comes to England, since he wishes to hear that case’.59 Such was his determination to hear an action between two Lincolnshire magnates, Gerard de Canville and Thomas of Moulton, that although he notified the justices of the Bench in Michaelmas term 1201 that proceedings were to be held over until he was back in England, he also added that they were to take security from both parties, `so that they cannot withdraw ...’.60 Occasionally additional complexities were recorded, the privileges claimed by a litigant, for instance. After Richard de Grenville, an important Devon landowner, had proffered forty marks and a palfrey in 1200 for two assizes against the abbot of Tewkesbury over Bideford and Kilkhampton churches, subsequent proceedings were deferred at least three times as a result of the abbot’s having obtained a writ directing that he was only to be impleaded before the king or the justiciar.61 And the commitments of the king’s ministers could also help to create delays. In Michaelmas term 1204 John ordered that an action between Henry Levesque (who seems to have been primarily a Lincolnshire landowner) and the prior of Ely over lands in Cambridgeshire should be heard before himself `wherever he should be in England’. But when the case came into court, at the following Easter, the prior declared that he could not answer without his bishop, whom he vouched to warranty. The bishop of Ely was then John de Gray, a man continually employed on royal business, who appears to have been too busy to appear in court to support the prior, since in 1207 Henry found it necessary to proffer three palfreys to have his action proceed `justly and without delay’, after it had been stayed on the king’s order (its conclusion, if any, is unknown, and may have been further delayed by Gray’s appointment as justiciar of Ireland late in 1208).62

The fact that the king might be called upon to warrant a litigant, even though he might himself be overseas, could also be a cause of delay. Strictly speaking the king was not obliged to provide the warranty requested, but John sometimes did so. In 1203, for instance, Agnes de Gundeville proffered £20 for an assize of mort d’ancestor against Hugh Esturmi for land in Offham, Sussex. When the case came to court Hugh presented a charter of Henry II and called upon King John to warrant it, but then had to wait for him to do so because John was in Normandy, and ordered that proceedings be respited `until [it can be heard] before us when we come to England’. The outcome of the case is unknown, but the fact that Agnes was not recorded as paying her proffer may well indicate that John eventually supported Hugh’s claim.63

A more complex illustration of the difficulties that might arise from warranty is provided by the lawsuit between Mr Reginald of Paris and Samson FitzWilliam over land at Chesterton, Cambridgeshire. Reginald was a royal clerk, who had been presented to Chesterton church by Richard I, and claimed the land as appurtenant to his benefice, whereas Samson claimed it as his own lay fee. Proceedings probably began in 1200,64 but seem to have hung fire, since in 1202 Samson proffered five marks for a recognition over the property to proceed without delay.65 Reginald countered this by paying ten marks to have the action stayed, and now had the advantage inherent in his having actually handed over the money – he may have been a royal chaplain, since he was said to have paid it into the king’s chamber in Normandy. Samson riposted by raising his bid, offering fifteen marks to have the assize go forward,66 only for Reginald to bring proceedings to a halt by vouching the king to warranty. John acknowledged his liability, but he was then (June 1203) in France, and could not do what was required for the time being, and so he ordered the justiciar to halt proceedings until his next coming to England. He probably expected his warranty to end Samson’s suit (as it would normally have done), for two days later he also told the justiciar to return to Samson as much of his proffer as had been collected,67 but the outcome of the case, as so often, is unrecorded.

 

Justice in a seller’s market

When compared with necessary, or at least explicable, delays, it might be thought that selling or denying justice constituted offences against fair-dealing which could admit of no mitigation. But again, the evidence that John perpetrated such offences in ways which his subjects invariably regarded as intolerable is not always clear-cut. Where the provision of justice was concerned he was throughout his reign in the happy position of having the best wares at his disposal in what was certainly a seller’s market, one made all the more advantageous by the uneven development of the law he was expected to administer and uphold, and particularly where tenants-in-chief were concerned. Some of the procedures at the disposal of lesser men were simply not available to those who held their lands directly from the crown, while others could be used only with difficulty, if at all, to resolve issues dividing the great men of the realm, issues which were often ancient in their origins and complex in their later development.68 As a result, the king enjoyed a good deal of latitude in the way he treated the lawsuits of the magnates, for whom the curia regis was the natural, indeed arguably the only, place for the resolution of their disputes and conflicts. Consequently he was able to exercise a controlling influence over the conduct and outcome of their litigation when they sought justice from him as their sovereign lord.

That influence, at every social level, was most commonly sought through offers of money made by litigants who believed – and were manifestly not discouraged from believing – that when they approached the king in the expectation of justice they should not come empty-handed. Sometimes the king simply took what he was offered and gave what was asked for, but his response was often less straightforward than that. Many of the proffers recorded on the fine rolls achieved nothing, and were never even transferred to the pipe rolls. Many more were formally recorded there, and thus acquired the status of crown debts, but some of these went wholly unpaid, and others were collected slowly, and not always in full. But large debts, in particular, could be treated as being like fiscal hostages, and the possibility that John would demand, and enforce, their payment in full constituted a weapon in his armoury of control which he must often have found almost as valuable as the money itself.

Many, cumulatively most, of the recorded proffers involved relatively modest sums. If actually paid, they might well have constituted significant outlays for the litigants involved, but it seems unlikely that they were what the barons had principally in mind when they drew up Clause 40, intended as they usually were either to obtain access to the highly-regarded justice dispensed by the king’s courts, or to speed up the progress of their lawsuits once they were in motion there – they can hardly have been made in the expectation that they would influence any subsequent proceedings. Many such payments were made over actions of novel disseisin. What was being purchased, for sums usually ranging from 6s. 8d. to 40s., was not so much the writ which initiated a lawsuit, as the right to have the action which followed heard in one of the central courts, rather than having to wait for the next eyre or visit by justices of assize.69 (By 1215, it should be noted, there had been no eyres since May 1209, while Clause 18 of Magna Carta argues that sessions by assize justices were less frequent then litigants required.)

 

The advantages of access

A number of such actions can be identified in the court records, and they show precisely why these payments were made, and went on being made. The litigants seem often to have been small freeholders, men like James of Fulston, who in 1207 proffered one mark `for hastening judgment’ on his action against Thomas de Ravenescumbe over twenty-nine acres in Cobham, Kent.70 In this case there may have been an element of desperation behind the proffer (which was paid within a year), since James’s lawsuit had begun no later than Easter term 1203, four years earlier, and had been subjected to constant delays, which may, indeed, have continued, since no conclusion to the action is recorded (the very fact that his proffer was paid in full makes it likely, however, that he eventually brought his suit to a successful conclusion).71

A presumption of urgency seems often to have been implicit in such cases. When Adam the dean of Burnham paid one mark in 1199 to have a recognition of novel disseisin against two men for a tenement in Burnham Thorpe, Norfolk, and only six of the jurors turned up, Adam was given a writ to the sheriff ordering him to summon the necessary number, `so that the assize may not be stayed.’72 Other cases are on record as going briskly forward. Probably late in 1202, for instance, Roger FitzHumfrey proffered one mark to have an assize of novel disseisin heard at Westminster between himself and his brother Odo, over a tenement in one of the Oxfordshire Bartons, as it duly was in Hilary term 1203 – Roger regained seisin and four marks in damages, and paid his original proffer in the following year, probably well satisfied.73 In 1206 Gerald the miller proffered, and paid, 6s. 8d. for a writ of novel disseisin against two men and a woman for a tenement in Wilbraham, Cambridgeshire. In Easter term that year the assize was taken, Gerald recovered his land, damages were awarded and the defendants were amerced.74 The action of novel disseisin for which John of Wiggenhall proffered two marks in 1214, claiming that he had been dispossessed by three men of a tenement in Tilney, Norfolk, was no less expeditiously dispatched – much more so, indeed, than John’s payment, which was only completed in 1224. The proffer specified that the case should be heard at Westminster, and despite the possible difficulties involved in assembling an East Anglian jury there, in Trinity term the recognitors were nonetheless convoked, the question was put, and the verdict was given. John recovered his seisin and damages of 20s. were awarded against the defendants, who were also amerced.75

All these cases involved men of modest means and standing, but similar payments could be made by more eminent people, to the same ends and with the same results. In 1206 Richard de Canville proffered 2000 marks and ten palfreys for the inheritance of Gilbert Basset, whose daughter and heir Eustachia he had married.76 But he also became embroiled in a lawsuit against Gilbert’s widow Egelina de Courtenay, over her right to dower in the Oxfordshire manor of Salford, and in 1208 he took steps to bring this to an end, by proffering three palfreys `for hastening his judgment over the manor of Salford’.77 The outcome, reached in Trinity term 1208, was a decision that Egelina was entitled to nothing in Salford, followed by a settlement which awarded her a modest holding there.78 In the light of his large initial proffer, Canville might reasonably have grudged the further outlay, but he may have thought it worth his while, since it brought a swift end to his dispute with his mother-in-law, and in any case he doubtless expected, as a wealthy man, to have to pay more than humbler litigants (it is not in fact clear that he had to pay anything, either in horses or in cash).

Just as three palfreys, the equivalent of £10, represented a higher price than litigants usually paid to hasten a judgment or to have an action of assize of novel disseisin heard, so in a few other cases litigants who are usually identifiable as men or women of rank had to offer larger than average sums for the writs which initiated their lawsuits, especially for darrein presentment or mort d’ancestor, sums ranging from twenty to sixty marks, or even more. In 1202 the earl of Clare proffered as much as £100 for an assize of mort d’ancestor against Roger de Tony over the Norfolk manor of Saham, but his action never got off the ground, and six years later John cancelled the debt, `because he could not have what he made the promise for.’79 In any case it was not bringing an action within the competence of a royal court which was usually the principal cause of expense, and thus of grievance, so much as the incidental payments made necessary by the conduct of a lawsuit, not to mention its conclusion, once it had come within the king’s immediate jurisdiction.80 These, far more than the cost of an initiatory writ, were liable to arise from the king’s intervention, and to provoke indignation accordingly, and to do so, moreover, principally among the wealthier and more powerful of the king’s subjects.

 

Observing the proprieties

It needs to be acknowledged that there was hardly any intervention which the king could make in a lawsuit which was incapable of arousing protests from at least one of the parties involved, even if no money was paid for it. It therefore also needs to be said that there were numerous cases in which King John’s interventions in the processes of justice do not seem to have been either interested or malign, and where the keen interest in the work of the courts which he often displayed shows no signs of having been inspired by ulterior motives. Indeed, his actions can sometimes appear to have been perfectly reasonable, even virtuous. In 1201 one Henry of Denstone proffered 40s. for judgment against Nicholas de Winstre and his wife Hawise (also recorded as Hawise of Waterfall) over four bovates of land in Butterton, Staffordshire. Hawise came into court, and declared that the land was her own inheritance, but that she stood in danger of losing it because her husband, corrupted by gifts from Henry, was refusing to come into court to defend the action, and she, too, offered 40s., this time for a grand assize to decide on the issue of right between Henry and herself. She had made a similar claim a year earlier, but the justices who heard it may have ruled against her. King John, perhaps surprisingly, was made of softer stuff, for `moved to pity’ (motus misericordia), and having also consulted the justices present, he accepted her proffer and ordered that the grand assize proceed, though strictly speaking the action should probably have gone against Hawise as undefended (its eventual outcome is unrecorded, though since Hawise had paid off her debt by Michaelmas 1203, while Henry is not recorded as having paid anything, it may well have been decided in her favour).81

John’s decision in this case, which can hardly have been affected by the modest financial inducement offered, has parallels in several others which suggest that he shared the reservations felt throughout landowning society against anyone losing his or her property as a result of a failure to appear in court. Thus when in 1211 Gilbert FitzReinfred and his wife sued Henry of Dean for land at Dean, Cumberland, and a grand assize was summoned coram rege at Knaresborough, Henry’s failure to appear was not held against him, for he was later able to ask the king himself to warrant his claim that the proceedings had originally been arranged to take place at Whitchurch, and this John did, encouraged, perhaps, by a proffer of ten marks for his warranty (the money was paid a year later). The case was therefore ordered to continue.82 A year later a Somerset case, seemingly brought to an end by the failure to attend of the defendant, Alfred de Bendeville, was re-opened after Alfred had successfully pleaded that his absence was due to there having been no justices present in the coram rege court on the prescribed date. He proffered (and probably paid within a year) two palfreys so that an assize of mort d’ancestor could be re-summoned, and proceedings ended in a settlement in the Bench.83

Perhaps ten marks (the value of two palfreys) was the usual rate for a favour of this kind, but the sum demanded could be higher, sometimes substantially so. In 1205 Geoffrey de Ambli proffered £20 `for having the king’s grace and seisin of his land of which he was disseised by order of the king’s justices’. Lord of Takeley, Essex, he had been sued two years earlier by Petronella de Tresgoz for land in Frinton in the same county, and had responded by making every effort to avoid appearing in court, not least by taking refuge in the liberty of Bury St Edmund’s where no royal sheriff had authority. In the end, it would seem, the king’s justices ruled against him on the grounds of his continuous defaults, a decision which he now paid to have reversed (he had cleared his debt by Michaelmas 1207).84  Geoffrey was probably fortunate to be reinstated, whereas Ralph de la Bruewere, who proffered £40 and a palfrey in the same year `for the king to save him from losing the land which Gilbert de Gant claims against him’, appears to have had much better grounds for having his case reconsidered, since his default had been due to his having been given the wrong day for his next appearance in court when earlier proceedings, over property in Lincolnshire, were adjourned. The rolls of the justices were examined, and in two of them the relevant date was recorded as the quindene of Hilary, but in the rest as three weeks after Hilary. The discrepancy resulted in proceedings being allowed to continue; the outcome of the case is unknown, but as Ralph cleared his debt in 1212 it is unlikely to have been entirely unfavourable to him.85

Although John was usually on bad terms with Gilbert de Gant, he can hardly be said to have acted wrongly in permitting an investigation of Ralph’s claim, or in allowing the lawsuit to proceed afterwards, though he could plausibly be criticised for asking, or accepting, so much. The same could perhaps be said of his conduct with regard to the extended litigation which ruined the Lancashire family of Bussel, with the loss of its barony of Penwortham. This seemed to have come to an end in Hilary term 1201 when Hugh Bussel defaulted in an action brought against him by his cousin Robert, and was adjudged to have lost completely (omnino). Nevertheless in the following year he was allowed (or perhaps compelled, since the sum was entered on the pipe roll as an amercement, not a fine) to proffer 400 marks (£266. 13s. 4d.) for the king’s warrant for his default, and to be put back in possession of Penwortham – presumably he claimed to have been unable to appear in court because he was in the king’s service at the time. The proffer was beyond his means to pay, as John probably knew it would be, there is no record of further litigation, and Hugh Bussel finally lost the barony.86 But it was probably thought important that he should be given every opportunity to retain it, and to that extent the king’s action (if not his exorbitant demand) could be regarded as justifiable.

 

Royal restraint

John did not always intervene when invited to do so, or take the money offered him as an inducement.. In 1201 Earl Patrick of Dunbar, an important Anglo-Scottish magnate, proffered forty marks and four palfreys for `a recognition of mort d’ancestor’ coram rege concerning three Northumberland townships which he claimed against St Albans Abbey and its daughter-house of Tynemouth. When the case came into court, however, in Easter term 1201, the monks argued that no jury should be summoned, as this would be contrary to the law of the realm (assisa regni), and when Patrick offered no plea in response, but asked for the king’s order on the case, they followed up by asserting that Edgar, as whose heir his great-nephew Patrick claimed the townships, did in fact have a living son, and that nobody else could claim them. Proceedings were adjourned and not resumed, but in 1205 John pardoned the earl his proffer, on the grounds that the recognition could not be taken according to the custom of the kingdom.87 Perhaps Patrick had hoped that John could be induced to use his prerogative for his benefit and ignore the procedural difficulties which otherwise barred his claim, but the king declined to act thus. It is possible, indeed, that John was influenced by the proffer which the monks made, also in 1201, of 200 marks (133. 6s. 8d.) and two palfreys for, among other things, a confirmation of Henry II’s grant of the townships, and of Richard I’s confirmation of it (the money was paid within two years, the palfreys, or their value, were handed over in 1208).88 But since the monks did not refer to this in their pleading, it may have constituted their response to the earl’s suit after the adjournment, and thus been made too late to affect proceedings before the king, whose charter confirming Tynemouth in the townships was not granted until February 1204.89 In his conduct of the case, and also in his remission of the earl’s proffer, John appears to have acted entirely correctly.

Later cases show John acting with no less propriety. He refused to accept the proffer for an inquest made in 1211 by Peter FitzHerbert in an action against the abbot of Westminster, though he gave order that the inquest be held;90 he may have wished to confer a modest benefit on one of his own henchmen, but without wishing to compromise the rights of the abbot (the case ended with a settlement). In the following year he adjourned a Nottinghamshire land action after both parties produced documentary evidence in support of their claims, since he wished for `more substantial testimony and greater certainty’ (vult quod adhuc majus fiat testimonium et major fiat certitudo),91 and he also received competing bids for intervention in a lawsuit between Simon of Kyme and Robert FitzAmaury, and accepted the lower one, which was Robert’s (and which does not in fact seem to have been paid), for allowing proceedings to continue. He may have acted thus to spite Simon, a former royal servant who was now out of favour, but he seemingly made no effort to manipulate the outcome of the case, which was still in progress two years later.92 A like uncertainty attaches to John’s acceptance in 1207 of the proffer of three palfreys (£10) from Henry FitzGerold for deferring proceedings in his lawsuit against William de Alneto over the manors of Mundford (Norfolk) and Cerney Wick (Gloucs.), to allow time for the production of a record of earlier proceedings in the honour court of Wallingford which Henry claimed would support his case. Henry’s brother Warin was a royal chamberlain and familiaris who stood by John until the summer of 1216, but Henry himself was a household knight of William Marshal, whose relations with the king were far from good in 1207. Perhaps the one consideration neutralised the other. The sum offered was modest, after all, and the adjournment appears to have been reasonable (Henry cleared his debt within a year, and the action was concluded by a settlement two or three years later).93

 

Complicating factors

Assessing the quality of King John’s justice is made still more difficult by the fact that litigants who to outward appearances paid for preferential treatment in the king’s court did not in fact always receive it. The proffer of forty marks which Herbert de Bolebec, a minor Buckinghamshire tenant-in-chief, made in 1200 `for having right concerning the fee of nine and a quarter knights against William de Turevill’ did Herbert no good, for when the case came into the Bench the earl of Leicester successfully claimed jurisdiction over it, whereupon it disappeared from the records.94 The more overt bid for royal support made in 1208 by Maurice de Gant, an important landowner in Yorkshire and Lincolnshire, who proffered 100 marks `for having several precipes and that the lord King may help him to have his rights ...’, led to a good deal of litigation, but without conspicuous success on Maurice’s part; in 1211, for instance, he lost an action over a knight’s fee in Swinstead, Lincolnshire (this may explain why he is not recorded as paying any of his proffer).95

Some payments had no result at all. This might be because competing payments effectively cancelled each other out. When in 1209 Gilbert the Englishman proffered ten marks for hastening judgment in his action against Ralph de Furnell over land at Farnham and Bollington, Essex, for which the grand assize had been summoned, while his opponent proffered 20s. for summoning the necessary jurors, it is difficult to avoid the conclusion that they were paying for the same thing – to no avail, as it turned out, because the jurors declared themselves unable to say which of the parties had the greater right. Nonetheless, each man paid what he had promised.96 And sometimes a litigant paid for a service which he never received. During coram rege proceedings at York in 1208 one John of Drewton, a Yorkshire knight who had been appealed by Reiner of Garton of assault and wounding, responded indignantly by claiming that he had already been prosecuted in similar terms, and that `he gave 40 shillings to have a verdict and he still seeks that verdict ...’. John is on record as having paid the money, `for having an inquest’, in 1205-6, and had thus been waiting for his verdict for at least three years.97

The fact that an action or decision of King John’s is capable of being seen in more than one light does not, of course, mean that a favourable construction should therefore be automatically placed upon it, only that there are borderline cases which need to be approached with caution and discrimination. One such may be illustrated by the proffer which Gilbert de la Dune made in 1200 for an inquest into whether Gilbert Oin, whose heir he was, had been unlawfully disseised of three hides of land at Exton in Hampshire, offering to give twenty marks if the inquest found in his favour and ten even if it did not. But although John appears to have accepted the proffer at first, he then ordered that no action should be taken upon it, because he had instead accepted a fine, recorded as consisting of thirty marks and a palfrey, made by Robert of Warnford.98 This was not a simple case of John accepting the higher of two bids, however, because Robert, a royal servant, already had a charter for the property from Richard I, one, moreover, which John himself confirmed early in 1201.99 Ralph’s proffer did indeed cut across the legal proceedings which Gilbert had tried to pay for, but it did nothing to prevent their taking place in future, since Ralph undertook to stand to right if he was sued. Which, indeed, may well have been what happened, since in 1203 Gilbert paid fifty marks `for having seisin of three hides of land in Exton, as an inquest held by the king into this attests.’100 It is certainly possible that John changed his mind again under the influence of a higher bid. But although his accepting Robert’s proffer gave the latter the advantage of having seisin of the disputed property, his doing so did not otherwise compromise anybody’s legal rights, and did not ultimately prevent Gilbert from prevailing.

Other kinds of complication appear in other cases. In 1204 Alexander de Brumton and his wife Agnes proffered £10 for the land at Hemmingstone, Suffolk, of Geoffrey FitzHerbert. Agnes claimed to be Geoffrey’s heir as his oldest sister, and the fine was specifically made to bar the right of any of his other sisters.101 The proffer was accepted and the money slowly paid, a consideration which did not prevent Agnes’s sister Matilda, with her husband Alexander son of Estrilda, from suing for a share in Geoffrey’s inheritance in 1206.102 Alexander and Agnes argued on the basis of their fine of 1204 that they should not be required to answer, but the case was remanded for discussion, and it would appear that the other siblings were in the end permitted to claim their shares, since in 1215 a third sister, Isabella, successfully sued Alexander and Agnes for six acres of arable land, part of a larger portion allotted to her in a settlement made in the royal courts.103 The justification for keeping the lands undivided had been that they supported a serjeanty, but the service demanded of its holder was hardly of the first importance, consisting as it did of a `fantastic foolery’, a display of athletic flatulence which its holder was called upon to provide every Christmas.104 Such an exhibition may indeed have appealed to King John’s probably rather crude sense of humour, but it hardly warranted denying the younger sisters a share in Geoffrey’s inheritance. The decision which thus seems to have been taken to overturn the fine of 1204 was not unreasonable, still less inequitable, but it is noteworthy that Alexander and Agnes did not recover their outlay, though their son Edmund was later recorded as holding the serjeanty.105

 

Leaning to one side?

Other cases, however, seem to show John straightforwardly acting to use his authority in such a way as to bring advantage to a litigant. He was not always on easy terms with his first chancellor, Archbishop Hubert Walter, and this may have contributed to his acceptance in 1200 of a proffer of twenty marks and a palfrey from Philip of Burnham to be put back in possession of lands in Felsted, Essex, of which he had been disseised. Subsequent proceedings showed that behind this was a dispute between Philip and the archbishop over a wardship, which was ended in 1201 by a quitclaim by Hubert to Philip, whose proffer would thus seem to have been designed to induce the king to intervene against his own chancellor, who was a great collector of wardships. The fact that John pardoned Philip his debt may point in the same direction.106 This does not necessarily mean, of course, that justice was not done, only that the king’s motives for doing it may have been mixed. Many proffers were made in order to bring lawsuits into the king’s courts, but one unusual case shows the Northumberland landowner Henry Bataille giving 100 marks and two palfreys to keep out of them, since in 1204 he paid for letters patent ordering that he was not to be impleaded outside his home county for any of his property there. Northumberland is a long way from Westminster, but it seems unlikely that Henry made a substantial payment simply to avoid the inconveniences of travel, and more probable that he faced the prospect of litigation which he hoped to conduct in favourable circumstances. Perhaps a long-standing connection with the Umfravilles, the lords of Redesdale, was one which he hoped to exploit on their, and his, home territory.107

An even larger proffer, of £100 and a Gascon palfrey, was made by Adam of Charing in 1205, `for having seisin of the manor of Charing of which Archbishop H[ubert] disseised him ...’. The king’s response showed that it was seisin alone, not right, which was at issue, for he ordered the keepers of the archbishopric, which had been vacant since 13 July that year, to put Adam in seisin, and then to investigate `diligently’ whether Hubert had in fact dispossessed him of that manor and of other properties as well.108 Adam’s family had long held Charing at farm from the archbishopric, paying a rent which probably looked unrealistically low by the end of the twelfth century,109 and Hubert may well have ejected him, or at any rate raised the farm to a sum which Adam was unwilling to pay. In the circumstances of 1205, when the archbishopric was vacant and therefore in the king’s hands, a direct approach to the ruler was probably Adam’s best recourse for obtaining restitution, but John’s response was arguably an irresponsible one, compromising the rights of the next archbishop when one should eventually be elected, and taking a large sum from Adam (whose debt had been cleared by Michaelmas 1207) for what might prove to be only a temporary reinstatement at Charing – as, in fact, it probably did, since Stephen Langton later claimed and obtained the manor.110

The king could have responded that he was only taking what Adam was willing to pay, and that the proffer had been made in the knowledge that seisin might be lost. It was worth paying for because the man in possession enjoyed the protection which the law gave to the occupant of a free property, whether it was disputed or not, and placed the burden of proof upon his opponent. Hence, for instance, Robert de Chantemerle’s proffer in 1207 of £80 for land in Cambridgeshire, Huntingdonshire and Dorset, which he claimed as the heir of his uncle but which was in the occupation of others – the king’s order was specific that Robert was to be given seisin, and that the issue of right could be dealt with afterwards (postea inde rectum teneatur).111 Walter de Esseleg’ had acted similarly, and no doubt with the same considerations in mind, when in 1202 he proffered, and eventually paid, £40 to stop the assize of mort d’ancestor which Ralph de St Clare had brought against him for lands in North Petherton and elsewhere in Somerset, and to impose the condition that if Ralph wished to sue in future, he could do so only through a writ of right.112

 

Negotiating settlements

The king’s intervention was not always sought, or used, in order to force an outright victory in a lawsuit. It was several times brought to bear to persuade litigants to settle, or perhaps to help negotiate a settlement more favourable to a protagonist than the one which he or she might otherwise have secured. The dispute over services between Oliver de Tracy, lord of half the lordship of Barnstaple, and William de Champeaux over services demanded by the former from the latter, began in Devon but was transferred to London following a payment by William, and continued for four years before modest payments to the king by both parties (6s. 8d. and one mark respectively) resulted in their being licensed to settle in 1205.113 In 1206 Amaury Bataille proffered £20 for a writ of mort d’ancestor against the abbot of Saint-Valéry-sur-Somme for a carucate of land in Bradwell, Essex. The action was to have been heard before the justiciar, but the abbot proffered three barrels of Auxerre wine to have it heard coram rege, as it seems eventually to have been, though not until Michaelmas 1207, when Amaury gave one mark for licence to concord. He did not obtain all he sought (which may explain why he was allowed to pay only eight marks of his first proffer, while his second was not entered on the pipe roll at all), but the fine was not ungenerous, in that the abbot granted him a virgate of land (a quarter of a carucate) and a marsh, together with eighty sheep and twenty marks in cash.114 Whether or not the king was personally involved in negotiating this settlement, his court was clearly a venue where such agreements could be worked out in definitive terms.

Achieving a settlement could call for political sensitivity as well as legal expertise. In 1201 Simon d’Avranches, as lord of the barony of Folkestone a powerful man in Kent, proffered 100 marks and a palfrey for right against Baldwin, count of Guînes, over the Kentish manor of Newington by Hythe. Proceedings had begun in Michaelmas term 1200, when successive adjournments were allowed so that the parties could negotiate a settlement. It proved hard to bring discussions to a satisfactory conclusion, however, and meanwhile the motions of litigation continued to be gone through. The details of these suggest that Simon (who had paid all but the palfrey within a year) wanted to prosecute his case, while the count hoped to settle. But since yet more adjournments went on being permitted by the court coram rege, it would seem that Baldwin had the backing of the court, and by implication, of the king – something also suggested by the conclusion to the case, a settlement reached in Hilary term 1202 which involved a division of the manor into two equal shares.115 The reason for John’s even-handedness in this instance probably lay in Baldwin’s political and military importance. The holder of one of the principal lordships in Artois on the northern flank of Normandy, he had been detached from his alliance with the king of France by Richard I in 1198,116 and John needed to retain his support. It was probably by such means that he appears to have been successful in doing so.

Similar considerations probably affected the conduct of a later lawsuit, initiated by Engelger de Bohun in Trinity term 1212 with the substantial proffer of 100 marks for an assize of mort d’ancestor against Thomas de Ardern for a knight’s fee in Ford, Sussex. Proceedings began soon afterwards, but were quickly halted when Thomas claimed that an earlier plea by his father Ralph, claiming lands in both England and Normandy, had led to a settlement being made in a session of the king’s court at Vaudreuil on 7 April 1199, in which Engelger quitclaimed Ford, and several other English properties, to Ralph. Thomas now showed the cirograph recording this to the court. Although Engelger denied ever having held the disputed land, and disputed the authenticity of the cirograph, he probably felt under pressure, for he proffered a further fifty marks for license to concord. This was accepted (though half it was later pardoned, as was the whole of his initial proffer), and the eventual outcome can be regarded as favourable to him, since although he had to surrender land in Lavant and Preston to Thomas, and to pay him £40, he retained Ford itself.117 The strength of Thomas’s case is hard to assess. His father had been an agent of Hubert Walter, who made him a substantial figure in Sussex by giving him the marriage of a well-endowed widow.118 But Hubert, who had witnessed the cirograph of 1199, was dead by 1212 (as, indeed, was Ralph, whose death may have been a recent event in that year), while Engelger was an Anglo-Norman lord who had remained loyal to John after the loss of Normandy,119 and as such was another man whose loyalty the king could not afford to lose if he was to have any hope of recovering the duchy. The remission of most of his proffers, and the largely advantageous resolution to the lawsuit which he obtained, suggest that the need for his support at a critical time had outweighed the claims of his opponent, whose father may in any case have been regarded as little better than a carpet-bagger.

 

Sales of justice

When all allowances have been made, there seems to be no doubt that King John could and did on occasions sell justice. In 1207, for instance, he accepted Henry de Longchamp’s proffer of three palfreys for putting a stop to the action of dower brought against him for land in Herefordshire by Henry de Mara and his wife Petronella, and instructed his justices accordingly – the king’s writ stated unequivocally that `he does not wish that plea to be held’.120 It is possible to argue that this intervention was not as outrageous as it looks, and that John was doing little more than taking a modest payment (the equivalent of £15) for upholding his own charter of 1205, which granted Wilton Castle and other Herefordshire properties to Longchamp, with the rider that he was not to be impleaded for any of them except by writ of right.121 But the admittedly brief records concerning the lawsuit make no reference to any charter, and to outward appearances this was precisely the kind of arbitrary action, barring a woman’s claim to dower in return for payment, which Clause 40 was intended to prevent.

Many other actions illustrate the opportunities for financial advantage which the king’s judicial superiority gave him. In 1201 William of Ford, apparently a subtenant of the Northumberland barony of Wooler, proffered 100 marks to have the king’s request (pro habenda prece domini Regis) to Earl Patrick of Dunbar, that he should allow William to have land of which his father had died seised, the money to be payable only if the earl obliged.122 In 1187 Robert of Ford, presumably William’s father, had proffered forty marks (and paid the money within two years) `for having the land of Derecestr’ of which Earl Patrick has deprived him’.123 In all probability this was the estate now at issue, one which Earl Patrick had taken back but to which William claimed to be his father’s successor. The sheriff of Northumberland passed on the king’s appeal to the earl in 1201, but although he subsequently reported that Patrick had not given up the land,124 William still had to pay twenty marks to be cleared of his initial proffer, despite its failure to achieve anything – his debt was paid off at Michaelmas 1203.125

There may have been mitigating features in the case of Robert of Rushock and his wife Alice, when they were appealed of homicide, probably in 1203, which helped to persuade John that they should be allowed to enter religion before their case came to trial. But it seems likely that the principal consideration was the 100 marks offered by William de Briouze, who seems to have had a claim upon property at Rushock – Robert died as a monk at Worcester, but his widow later returned to the world, and Briouze’s son Reginald was in a position to give her the dower at Rushock for which she sued at the 1221 Worcestershire eyre.126 In 1212 one Baro the clerk of Northampton, who was twice recorded as styling himself `serjeant of the lord king’, appealed three men of assault and imprisonment, and thus of a breach of the king’s peace which may even have taken place in court – Baro claimed to have been `in the king’s peace for the king’s pleas ...’. John accepted proffers of 40s. from each side for an inquest, and then gave the appellees licence to settle with Baro in return for 300 marks and three good palfreys, payable (to himself, not Baro) in equal shares.127 The fact that the proffer was probably more than they could afford to pay (one of them cleared his debt in 1230, the others were then still some way from following suit)128 only underlines the leading role which John was apt to give to the pursuit of money in his administration of justice.

A case from Suffolk illustrates John’s opportunities for taking money at both the beginning and the end of a single lawsuit, one interesting not least in involving relatively humble people. In Hilary term 1208 Robert (whose name is also, confusingly, sometimes entered as Ralph) the son of Eustace the park-keeper proffered £5 for having his father’s land, which supported a serjeanty of making summonses (a tenure which placed its holders in a direct relation with the king, though in this case it must have been a remote one), and for the chattels which Roger FitzOsbert had taken there.129 In an action heard before the king in the following Trinity term, Robert then complained that following Eustace’s death Roger had intruded himself into the serjeanty, which was apparently at Laxfield, and had taken livestock and crops which he listed in detail. Roger, however, claimed that he had been granted the land, and the chattels with it, by successive holders of the honour of Eye (it had escheated to the crown in 1159, and had a number of temporary lords thereafter), of which Laxfield formed part, and that he had received custody of the serjeanty on the order of the king, whom he vouched to warranty, adding that if the king would not warrant him then he would put himself on a jury of neighbours as to which chattels he had received.

John does indeed appear to have declined to warrant Roger, for the case was adjourned for hearing before justices, unidentified but probably those who held an eyre in Suffolk in the late spring of 1209.130 These may have found against Roger, or perhaps Robert’s initial proffer settled the matter, for later that year the latter was recorded as owing the king half the goods (again defined in terms of livestock and crops) and money he had claimed, in return for the king’s distraining Roger to pay them – he cleared his debt in 1210).131 John was in effect acting as debt-collector for one of his subjects, and pocketing half the proceeds. Such an arrangement was not uncommon, but the rate was markedly higher than usual – a quarter or a third is recorded in similar cases.132

 

Favours for money

Throughout his reign John appears to have been willing to exploit his position to raise money, in ways and to ends which affected the ability of his subjects to claim or safeguard rights or possessions. He showed no obvious qualms, for instance, about accepting 100 marks in 1201 (a proffer itself comprehended immediately afterwards in one of £100)133 for repealing his own confirmation, issued on 25 August 1199, of a former abbot of Whitby’s charter which `with the assent of my whole chapter’ had granted liberties to the burgesses of Whitby (who had themselves proffered eighty marks for this).134 The cancellation was issued on 13 January 1201, and not only brought litigation between the abbot and the burgesses to an end, but thereafter constituted a bar to any future attempts by the burgesses to obtain the rights granted them in the charter.135 The sums involved in such cases were not necessarily large. Hugh de Scalers had been litigating against his cousin William de Scalers over lands in the Cambridgeshire barony of Caxton since at least the beginning of John’s reign, with regular delays and adjournments which seem to have been mostly his own responsibility, until in 1207 Hugh proffered and paid twenty marks to have the issue of right settled by the grand assize, which then found in his favour.136 Having spun proceedings out, he was able to have them brought to a speedy conclusion at his own convenience through a payment to the king.

In other cases a modest sum was all that was needed to bring litigation to a standstill, as when two good palfreys, valued at £10, proffered in 1209 and paid within two years, sufficed to enable Basilia de Furnival to bring to an end Ralph d’Angerville’s suit against her over a knight’s fee in Sproughton, Suffolk.137 When John of Radborough and William the franklin sued Geoffrey of Longhope and his wife for land in Longhope, Gloucestershire, in 1206, the king simply ordered his justices not to hear the case – he had given the defendants the land, warranted it to them (something he was under no obligation to do), and wished them to hold it in peace for as long as he lived.138 Whatever his motives in this case, they were probably more creditable than his actions in 1210, when the Cistercian abbots met King John at York and refused his demand for money. Already at loggerheads with the church over the disputed election to Canterbury which had led to England being placed under an interdict, and then to his own excommunication, and enraged now by being thus baulked financially, John reportedly announced that all the royal charters granted to the order were to be treated as worthless, licensed his subjects to harass the white monks with impunity, and sent orders to all his sheriffs, justices and foresters `that none of them should provide them with any right or justice ...’.139 How far this withdrawal of legal rights extended is unclear, but in the same year Roger de Lacy proffered two good palfreys on behalf of the abbot of Stanlow, a Cistercian house in Cheshire, `that he may have all his possessions (omnia sua) in peace’ (the debt was quickly paid).140

It may be added that although John could hardly be blamed if his favour was misused, it was still bound to reflect badly on his exercise of his judicial authority if it was exploited dishonestly by the man or woman to whom he, in effect, sold it. Gilbert of Norfolk lied in court. William of Cheriton, who in 1206 proffered 300 marks, two palfreys and two hawks to have `all the land formerly Geoffrey de Bosco’s at Delce [in Rochester, Kent] as his right ...’, along with two precipes against Ansell Biset for lands in Buckinghamshire and Kent, and paid what he owed over a total of eighteen years,141 appears to have used his proffer as the basis for much wider claims. For when he sued against Ansell in the following year, on the basis of his descent from one William son of Helte, his uncle, he responded to Ansell’s defence with the claim that `the lord king gave to him, as to the rightful heir, the right which was William Helte’s for 300 silver marks ...’.142 As recorded, John’s grant had done no such thing, and in the end William of Cheriton seems to have obtained only what he claimed in his proffer. Geoffrey de Bosco was a Norman who forfeited in 1204 and his lands were at the king’s disposal, a fact which enabled William to establish a lawful right in Delce.143 But his claims elsewhere were largely unsuccessful, in that he could only confirm his overlordship of the estates held by Biset, whose descendants therefore remained in occupation of them.144 That William obtained less than he had paid for did not, however, prevent King John, and later Henry III, from receiving the money he had offered.

 

Law and politics (1): King John and Robert FitzWalter

(a) Hertford Castle

It hardly needs saying that money was not all that could be at issue in King John’s interventions in the lawsuits of his subjects, for there were political factors to be considered as well as, or along with, purely financial ones. There are indeed constant difficulties in distinguishing between the king’s need for money and his pursuit of political advantage, and the desire of his subjects to have the authority of royal power behind them in their quest for justice – something which, of course, could be no more than a synonym for personal gain. But the resulting ambiguities are not only historiographical, they were built into the office of kingship and into the forces which that office aimed to control. Justice, for the king, was not only a quality of righteousness which was inherent in his office, it was also a means of political control, a profitable source of revenue, and a tool of patronage. For those who litigated in his courts, justice was similarly no abstract entity, but a way of obtaining rights and desserts which only injustice could deny them. In fact, the possibility that his judgment might be contaminated by political, financial or even personal considerations was probably one which no early-thirteenth-century king would have troubled to deny. But the extent to which such considerations actually did move King John’s actions and judgments in his conduct of legal affairs is not always easy to determine.

The way in which personalities and politics might affect the king’s judicial conduct, and also the problems which his authority in such matters might bring with it, can be seen in three cases involving the same man, Robert FitzWalter, two of which were reported in varying degrees of detail not only in contemporary financial and legal records but also in the chronicles of St Albans Abbey, composed by Matthew Paris. Lord of Dunmow, Essex, and of Baynard’s Castle in London, Robert was one of the greatest English barons.145 His relations with King John later became bitterly hostile, and were probably never better than outwardly correct. His marriage to Gunnora, daughter and heir of Robert de Valoynes, brought him the Hertfordshire barony of Benington, and with it a claim to the custody of Hertford Castle, which he clearly regarded as appurtenant to the barony and for which he sued no later than Hilary term 1200.146 He was given a day to attend in the quindene of Easter, when an inquest into the custody was due to be held, but when he did so it was to learn that John had granted the castle instead to Richard de Muntfichet, another Essex baron, in return for a proffer of £100. FitzWalter’s resigned exasperation (along with something of the evidence he had hoped to present in support of his claim) can be deduced from the recorded response of his attorney, who told the court that `his lord does not wish to prosecute the assize which he had brought touching the custody of the castle of Hertford in accordance with his charters which he has therein, and therefore the assize withdraws without day.’147

Muntfichet became sheriff of Essex and Hertfordshire in 1201, when his having control of Hertford Castle would have made administrative sense, but he only paid £25 towards his debt, because John then changed his mind, and on 8 August 1202 granted the castle to FitzWalter after all.148 He may have acted thus in response to Muntfichet’s probably declining health (he died in 1204), or because he needed FitzWalter’s support in Normandy, where he was appointed to the joint command of Vaudreuil Castle in the following spring (a responsibility which he discharged with a conspicuous lack of success).149 But despite FitzWalter’s failure at Vaudreuil, he retained Hertford for several years, receiving £11 per annum to support his custody, until around midsummer 1209, when for no recorded reason the castle was transferred to John FitzHugh.150 Robert clearly resented the loss, and when during the civil wars French and baronial forces captured Hertford Castle, he was quick to claim it as his ancient right – Prince Louis was no less prompt to hand it over, according to the `Anonymous of Béthune’,151 but deferred doing so, according to Roger of Wendover.152

 

(b) Northaw wood

John’s conduct of proceedings over Hertford Castle was of a piece throughout, above all in demonstrating his capriciousness. He ordered an inquest into FitzWalter’s rights, but after making it pointless entrusted the castle to him all the same, before later taking it away from him again. His involvement in the second case is of a piece with the first. In Trinity term 1200 FitzWalter, acting in the right of his wife, sued against St Albans for a wood at Northaw, several miles south-east of the abbey.153 John was in France by this time, but the abbot had taken appropriate precautions, for he had obtained, and now presented, a royal writ given at Porchester no later than 28 April, immediately before the king sailed for France, which with unusual precision forbade the justiciar to allow the abbot `to answer to anyone for his tenement which he held when we crossed the sea for the second time after we were crowned king, unless before us when we shall have come into England’.154 But FitzWalter countered with another writ, given at Bishop’s Waltham on 24 April, which commanded that his plea against the abbot should proceed, `and that it is not to be stayed for any writ which the abbot of St Albans may bring’. This clash of incontrovertible authorities understandably baffled the court, and proceedings were deferred until after midsummer, so that the king’s will could be ascertained and the relative validity of the writs investigated.

It seems hardly possible that when he granted protection to St Albans John did not know, or had forgotten, the writ he had given to FitzWalter only a few days previously, which as cited was specifically intended for use against St Albans, and much more likely that he was influenced by the abbot’s proffer, made in 1200 and otherwise undated, but surely from around this time, of 310 marks (£206. 13s. 4d. – the money was paid by Michaelmas 1205) for privileges which included protection against pleading except before the king.155 His need for money, amid the confusion attendant upon embarkation, offers one explanation for his conduct, sheer irresponsibility provides another. John does appear to have acted more carefully upon his return from France, however, for the case was ended by a settlement concluded in November 1200, in which FitzWalter abandoned his claim to the wood, and in exchange received all the abbey’s land at Biscott, near Luton, together with £80.156

Matthew Paris, probably writing in the 1240s, regarded Abbot John de Cella as having acted `prudently’ in negotiating this agreement, which he presumably regarded as reasonable – such was his hostility to the crown in general, and to King John in particular, that he was unlikely to have held back from criticism had he thought otherwise. In fact his account of the case said nothing about the involvement of the king, and, indeed, made only passing reference to litigation.157 In his eyes the powerful FitzWalter, a man `with whom scarcely any earl in England could compare’, was little better than a monster of covetousness, who plotted the murder of the abbey’s lawyer and fortified his spurious claims with a charter forged by a corrupt St Albans monk, persecuting the monastery until the horrible death of his ally, exiled to Tynemouth where he drowned in the monastic latrine, brought him to a degree of repentance. King John probably liked FitzWalter as little as the chronicler did, and may have privileged St Albans for that reason, as well as for money. What his handling of the case conveys above all is his inconsistency, verging on recklessness, in granting conflicting privileges to litigants in the same lawsuit. Its ultimate settlement may indeed have been equitable, but before it was made John had needlessly risked antagonising a leading figure among the baronage, just the sort of powerful and influential man whose loyalty he needed to retain.

 

(c) Binham Priory

Robert FitzWalter was presented by Matthew Paris in an equally unfriendly light in the third case, concerning St Albans’ daughter-house of Binham, Norfolk, but here John was represented as playing a much more active role.158 Robert FitzWalter’s marriage had made him patron of Binham, which was founded by his wife’s ancestor Peter de Valoynes in around 1100.159 Robert was not in fact a generous patron, making only one recorded benefaction, a pension from Bacton church which later gave rise to much litigation, and in granting this he was careful to reserve his own right to present to the church in future160 (Bacton may have been the church over whose advowson FitzWalter was recorded as suing the prior of Binham in 1198).161 This concern with his rights inevitably meant that when Abbot John of St Albans removed Prior Thomas from his office at Binham, probably in 1210, his action gave grave offence to FitzWalter, who was also a friend of Thomas’s, and was in the habit of referring to him as `his’ prior. According to Paris, he obtained a forged charter declaring that the abbot of St Albans was not to depose the prior of Binham without consulting the patron or obtaining his consent, and then proceeded to lay the priory under siege in order to force the monks to expel their new prior, cutting off their supplies of food and drink and threatening to castrate them if they did not submit. All this was reported to King John, who so hated FitzWalter that he was pleased to have grounds for taking action against him, and sent a force to break up the siege, but a friend at court managed to warn FitzWalter and his men, who fled before the king’s men arrived.

The disappearance of the close and patent rolls from this time means that there is no direct evidence for John’s response to the siege of Binham, but the surviving court records shed valuable light on the case. Although each party to the dispute appears to have sued against the other, it was FitzWalter’s action which was heard in the court coram rege a month after Michaelmas 1210, where he proceeded by plaint against the abbot, complaining that the latter, in breach of a charter which Robert had from the abbey, had conducted a visitation of Binham with an inordinate number of horses and men, had installed too many monks, and had tallaged the priory’s men, taking much money from them. He had also, when Robert was in Ireland during that summer, removed the prior, who had been appointed with his assent and good will, `contrary to the sense [tenorem] of that charter ...’.162 Despite FitzWalter’s description of the charter as `from the abbacy [de abbacia] of St Albans’, it was probably Binham’s foundation charter, given by Peter de Valoynes, and the abbot responded appropriately to FitzWalter’s plea by objecting that Peter’s heirs ought to have been present in court, an argument which secured him an adjournment until late November, and presumably further respites after that, since the action was still in progress a year later.

The king may not have presided when FitzWalter began his suit, but he probably did so when proceedings resumed in November 1211.163 Again FitzWalter sued by plaint, this time in company with his wife, showing that the abbot’s response had been heeded. The court roll is damaged, but still shows the plaintiffs complaining that the abbot had gone to `their priory of Binham, which their ancestors founded, and removed their prior ...’ (the repeated use of the possessive pronoun is noteworthy), and had done so, moreover, when Robert was in the king’s service in Ireland.164 The abbot denied the charge, and said that FitzWalter and his wife had intruded themselves into the priory, disseising the abbot of it and taking his chattels, and although the abbot’s own complaint had resulted in his recovering seisin `by order of the king and by the decision of the priory court’, his chattels, valued at thirty-four marks, had not been returned to him. And he asked whether he should reply to FitzWalter until he had obtained the full seisin implicit in possession of the chattels as well as the priory. Objections raised by FitzWalter’s attorney were overruled, and order was given for an inquest into the damages sustained by the abbot. Later adjournments prolonged the case until at least June 1212,165 but no inquest appears to have been held before Fitzwalter’s involvement in the conspiracy against the king’s life in August that year resulted in his flight to France and subsequent outlawry.

If the abbot’s reference to his having earlier sued per querelam is to be understood literally, then both parties proceeded by plaint, which was unusual but perhaps unavoidable in this case, when there may not have been a suitable writ available – the early thirteenth century was `a time of doubt and controversy’ where the legal rights of patrons over monastic dependencies were concerned.166 John’s willingness to hear the action could thus have signalled his readiness to do justice despite procedural obstacles. It is possible that he offered the parties an opportunity to settle, as he did in 1200, and that this was refused, but neither Matthew Paris nor the court records suggest this. He is not recorded as taking money from either litigant, however, while Matthew Paris’s account of the king’s angry threats, and of his dispatch of forces to dislodge FitzWalter’s men from the priory, is probably exaggerated, at the very least. The court clearly found against FitzWalter, ruling that he was indeed violently and unwarrantedly high-handed in his dealings with Binham and condemning him to pay damages, while his conduct probably appeared all the more objectionable because in fact he had no special rights in the appointment of that house’s prior – Binham’s foundation charter, which subjected the priory to St Albans and which could have supported FitzWalter’s other complaints against the abbot, made no reference to this one, as John, who read documents with great care when it suited him, may have enjoyed pointing out.167 All the evidence suggests, in fact, that FitzWalter was rightly convicted of wrongdoing, and that John’s conduct of the case had been entirely correct.

That is not to say that it was unproblematic. Matthew Paris may well have been right to suggest that John was glad of the opportunity which the dispute gave him to discipline a potential, if not yet actual, adversary (his loss of Hertford Castle in 1209 could have shown FitzWalter which way the wind was blowing), the more so when it was that adversary’s own determination to sue which brought him into court. But he may not have been well-advised to allow FitzWalter to become the agent of his own comprehensive defeat, even though he had no obvious way of preventing this. In many ways John was in a cleft stick. To have refused to hear the case would have left him open to the charge of denying justice to men demanding it. Hearing it, and therefore presiding over a lawsuit which to all outward appearances ended (in so far as it did) with justice being done, exposed him to the further enmity of a powerful man whose determination to prevail had led him into violence and (if Matthew Paris is to be believed) the forging of charters, and was therefore unlikely to regard his failure in the courts as other than the result of favouritism, if not outright corruption.

In such circumstances John was always likely to suffer from his inability to distance himself from the workings of any court which operated in his name, if, indeed, he tried to do so. In the context of the Binham case, if there is any truth in Paris’s account of the king’s wrath against FitzWalter, and of his sending his knights post-haste to end the siege of the priory, it suggests that even when he was keeping the peace or enforcing the judgment of his court, John might well make no effort to avoid appearing partisan, even though the circumstances could easily have enabled him to do so. Such conduct helps to explain the dubious reputation which John acquired through his handling of legal issues generally, one to which Clause 40 bore witness. He was capable of judicial even-handedness, as the Binham dispute in fact showed, but he could not be relied upon for it, as he demonstrated in the two earlier cases involving Robert FitzWalter. The Binham case is unlikely to have been the only cause of FitzWalter’s alienation from the king, but it must have contributed to it.168

 

Law and politics (2): The case of Fulk FitzWarin

John’s responses to other cases are highly likely to have worked to the same end.

Another notable example of the way in which financial and political considerations, perhaps reinforced by personal ones, might affect the way in which John conducted judicial proceedings, is provided by the well-known dispute between Fulk FitzWarin and his rivals over the Shropshire castle of Whittington, near Oswestry, which lay behind, and provided the background to, a celebrated romance which was probably first set down late in the reign of Henry III.169 Fulk (the third of that name) had inherited a claim to Whittington for which his father had proffered forty marks (£26. 13s. 4d.) in 1195.170 This sum was entered on the pipe roll, with a note that the castle `was adjudged to him in the king’s court’, but no payment was made, and in fact Whittington remained in the hands of Meurig of Powys, a Welsh landowner and soldier to whose father Henry II had granted it.171 Fulk the father died in 1197, however, and in 1200 the son tried again, this time proffering £100 for Whittington `as his right, as it was adjudged to him by the decision of the king’s court’. This, too, was entered on the pipe roll, but again nothing was paid, presumably because around the same time Meurig had proffered fifty marks (not £100, as the romance claimed) to be confirmed in Whittington, and John preferred to maintain the status quo there, and therefore to accept the lower bid.172 Meurig’s proffer joined Fulk’s on the pipe roll, and on 11 April 1200 the king issued a charter granting the confirmation Meurig sought.173

Meurig did not pay any of his debt, probably because he died soon afterwards, and this gave John the opportunity to raise the price of his support. On 1 August 1200 he confirmed Whittington (and Overton in the south of the county) to Meurig’s sons Wrennoc (elsewhere recorded as `Goronnus’, suggesting a name like Goronwy) and `Wennoneus’, and demanded £100 and four palfreys from them for doing so.174 The debt was entered under Wrennoc’s name on the 1203 pipe roll, with no less a figure than William de Briouze named as pledge for its payment, and in the following year £68 were paid.175 But Wrennoc gave no more, for in 1204 Fulk made yet another attempt, and proffer, to obtain the castle, this time of 200 marks (£133. 6s. 8d.) and two high-quality warhorses (dextrarios de pretio), and whether in response to the guerilla campaign which the romance describes him as carrying on against the king, or for reasons connected to royal policy towards north Wales, John accepted this third bid, and ordered the sheriff of Shropshire to deliver the long-sought-for castle to Fulk, `as his right and inheritance.’176 (Wrennoc was fobbed off with lands worth £8 in Worfield, on the other side of the county).177 Fulk’s two earlier proffers were still being entered on the pipe rolls, unpaid, and for several years this latest one, amalgamated with other debts, was treated in the same way. Only in 1210 did he begin to pay, and even then he gave just £4, followed by the same amount a year later.178  He came under little more pressure to pay his other debts, which were substantial, but in a development which was far from rare in John’s reign, his earlier grievances against the king outweighed the restraint which accompanied their resolution, and in 1215 he joined the rebellious barons. Fulk briefly entered into a truce with the king in 1216, but soon revolted again, and only returned to his allegiance late in 1217.179

The bids and counter-bids in the proceedings involving Fulk FitzWarin surely come close to the heart of Clause 40, illustrating the way in which considerations of political advantage, and perhaps also personal differences – if there is any truth in the story of a childhood squabble between Fulk and his future king which, as described by the romance, poisoned relations between them thereafter – could result in John manipulating, or simply intervening in, the administration of justice. Fulk’s proffer for Whittington in 1200, like his father’s earlier, was recorded as having been made to secure him in what was awarded to him by the decision of the king’s court, while that of 1204 was to obtain his right and inheritance. The later romance, too, presents its hero as being primarily moved by the pursuit of justice, and as rebuking King John precisely because `you fail me in my rights and the common law. Never was he a good king who, in his courts, denied the law to his free tenants ...’.180 Words set down under Henry III would have resonated no less during the reign of his father. When in 1209 the exchequer tried to regularise the payment of Fulk’s largest debts, the list of his pledges included two earls (Hereford and Salisbury) and a number of important men from the Welsh marches –William de Briouze and his eldest son,181 William Pantulf, Walter Clifford.182 Such men could reasonably have sympathised with Fulk and been alarmed, even antagonised, by the way he was treated, and by the impression of venality given by the proceedings which resulted from his efforts to gain control of Whittington. That Fulk was clearly expected to bid for justice from the king may well have counted for much more, and that to the king’s disadvantage, than the fact that none of his proffers was paid in full, and that most of them yielded nothing at all. 

 

Competing bids (1): Stuteville versus Mowbray

King John’s administration of justice could undeniably be impartial, honest and efficient, but it could never be entirely trusted to display these virtues, and as a case like that of Fulk FitzWarin demonstrates, it could also show a very different face to those who became involved in its workings. One reason for this was John’s willingness to take money from more than one party to a lawsuit. In the well-known case in which William de Stuteville sued against William de Mowbray for lands taken from his Yorkshire barony of Cottingham, each party made proffers over the re-opening of a dispute which was nearly a century old, one which arose from conflicting loyalties early in Henry I’s reign, and which had supposedly been settled by a treaty, negotiated some time before 1166, which gave William’s father Robert the manor of Kirkby Moorside, containing ten knights’ fees, in compensation for losses to Mowbray’s grandfather.183 That did not satisfy the Stutevilles, however, and in 1200 John in effect licensed William to renew his claims, with an action for the entire barony in return for a payment of 3000 marks (£2000), made, succinctly, `for having right’ (this payment covered several other matters as well).

As grounds for ignoring the earlier agreement Stuteville alleged that it had not been confirmed in the king’s court or under his seal (in curia regis et ejus munimine non fuerant confirmate). Whether this was true is uncertain. Baldwin Wake, whose family succeeded the Stutevilles at Cottingham in 1241, defended his liberties in the reign of Edward I by showing a charter which purportedly recorded the grant of Kirkby Moorside to Robert de Stuteville by Henry II.184 But the fact that this charter was presented as an outright grant rather than as the royal confirmation of an independent settlement, and that Edward I’s attorney, although he did not deny the charter’s authenticity, nonetheless made anachronistic claims for the restrictions which it placed on Robert’s ability to dispose of the manor (it had come into the hands of the Knights Templar), inevitably casts serious doubts on its authenticity. Whether it was confected, or merely enhanced, at a later date it is impossible to say.  

Even so, it seems unlikely that an agreement intended to end a long-lasting quarrel between two of Yorkshire’s leading baronial families had been reached without any royal involvement, and this may be reflected in Mowbray’s recorded response, a proffer of 2000 marks (£1333. 6s. 8d.) `to be dealt with justly and according to the custom of England’, which suggests that he was defending the action under protest. He is certainly unlikely to have thought afterwards that he was treated `justly’, for he suffered substantial losses. Not only was he required to pay the money promised to the king, thereby adding to his already considerable debts, but he also had to transfer a Warwickshire manor to Stuteville, along with a further nine Yorkshire fees to add to the ten conceded by his father. It may be that by 1200 the original settlement looked less than equitable, at any rate to Stuteville, though it seems just as likely that the latter was simply seeking to exploit the good will his services to successive kings had brought him since the early 1170s – he was certainly in favour with King John, who appointed him to several shrievalties, and who stayed with him at Cottingham immediately after the conclusion of his lawsuit against Mowbray.185 The latter, by contrast, enjoyed no such advantage, as a result of his father’s support in 1174 for the rebellion against Henry II and of his own reluctance to accept John’s accession twenty-five years later.186 Be that as it may, other tenants-in-chief must have been concerned that ancient disputes could be revived on what may well have looked like distinctly flimsy grounds, as well as by the king’s readiness to receive a litigant’s proffer without, in the end, giving anything in return for it.

Mowbray’s feelings, it may be presumed, were considerably stronger than mere concern, and his resentment was surely exacerbated by the way John treated his proffer. Whereas Stuteville had cleared 1600 marks of his debt by the time of his death in 1203,187 Mowbray did not pay any of his until 1205, when he handed over just ten marks, followed by twenty marks in 1206 and thirty in 1207.188 But then, when he had probably come to expect that he would be allowed correspondingly easy terms for the payment of the rest of this debt, John began to turn the fiscal screw on him. In 1208 he had to make two payments totalling £133. 6s. 8d.,189 while the following year’s pipe roll revealed elaborate arrangements under which he and numerous pledges, ranging from earls and barons to several of Mowbray’s own tenants, undertook to pay the king £100 per annum until the whole debt was cleared. The abbots of Fountains, Rievaulx and Byland together paid £100 to avoid becoming responsible for any part of Mowbray’s debt, which now stood at £1053.190 It was reduced by £100 in 1210,191 and in 1211 by as much as £164. 5s..192 But having intensified the pressure on Mowbray, John then found it expedient to relax it again. Only £36. 13s. 4d. were paid in 1212, when the remaining debt stood at £642. 1s. 8d.,193 and the same sum was still owing two years later. As so often, John’s maladroit handling of this case gave him the worst of both worlds. Having exploited his control of the courts to wring a substantial proffer from Mowbray, he encouraged the latter to assume at first that he was not going to be pressed to pay it, then set about methodically forcing regular payments of considerable sums, before reverting to his initial policy of accepting much smaller ones. He raised little more than half the money agreed upon, but after applying himself to extracting it then changed his policy in such a way that he did not conciliate his victim either. Mowbray remained one of John’s most determined enemies until the end of the reign.

 

Competing bids (2): The rivalries of lesser men

It was not only in lawsuits between barons that John showed himself willing to take money from both sides, litigants of lesser rank might similarly make competing bids for royal support. In 1200 Ralph de Belfou, a substantial Norfolk landowner, proffered one mark for an assize of mort d’ancestor against Gilbert of Norfolk and his wife Emma for half a knight’s fee at Creake and Burnham, Norfolk.194 In the same year, in what may have been an attempt to strengthen his position in advance of litigation, Gilbert proffered (and paid within a year) 100 marks and a palfrey for having the land which constituted the inheritance of his wife, and for having the king’s charters for it.195 The assize went ahead all the same, at first at Westminster and then before the justices itinerant who visited Norfolk in 1202. At that point Gilbert claimed that the action should not proceed because the disputed property, and all his other lands, had been taken into the king’s hand pro passagio suo – for his failure to cross the sea to take part in the defence of Normandy. This, however, was untrue, as Ralph claimed and the sheriff confirmed (Gilbert was recorded on the 1202 pipe roll as owing half a mark in scutage, showing that he had compounded not to go to Normandy),196 so the assize continued and found in Ralph’s favour.197 Gilbert did not accept defeat, however, for the 1204 pipe roll records him as proffering another 100 marks `for having seisin of half a knight’s fee in Creake and Burnham, with its appurtenances, of which he was disseised unjustly and without judgment, as he says ...’,198 and this bid achieved its end, since in Easter term 1204 Ralph was recorded as suing once more against Gilbert for the same half fee. Gilbert, it was said, had told the king that the 1202 assize had been taken while his knights were in royal service, adding that although he informed the justices of this, it had done him no good (non potuit ei valere).199 This plea seems to have persuaded John to put him in possession, even though Ralph appears in the meantime to have made a proffer of his own, since his debt of twenty marks and a palfrey `for having seisin’ was also entered on the 1204 pipe roll, and was paid off in stages between 1207 and 1211.200

Perhaps Gilbert’s higher bid, and his claim on the king’s favour implicit in his reference to the services of his knights, gave him the edge over his opponent. His advantage was not a decisive one, however, for Ralph continued the struggle, and may have recovered the property, for when in 1205 he proffered another five marks and a palfrey (paid off by Michaelmas 1206) to have seisin,201 it was with reference to a fine made in the coram rege court by which he conveyed the property to Gilbert and Emma for Gilbert’s lifetime, on condition that it reverted to him following the latter’s death, which took place some time before 3 October 1205202 (this doubtless explains why Gilbert paid only £13. 13s. 8d. of his second proffer).203 By this time Ralph was taking no chances, probably aware that Emma might be as determined an adversary as her late husband – in 1204 he had brought a parallel action against her for the same property, whereupon she attempted to essoin (excuse herself from attending) on the grounds of ill health, a claim which seems to have been false, since it was not allowed by the court (non fuit admissum)204 – and the sheriff was ordered to put him in possession without delay. The case may well have been a complex one (though it was certainly complicated further by Gilbert’s dishonesty – an unusually clear example of the unscrupulousness to which litigants might descend), and its eventual settlement was very possibly an equitable one. But if John saw that justice was finally done, he also ensured that he was well paid for this, and by both parties to the dispute.

A similar readiness to take money from both sides in a property dispute can be seen in a Warwickshire lawsuit of 1200, in which Thomas Noel and his wife, with two other couples, proffered £10 to have a stop placed on the plea between themselves and Herbert and Robert, sons of Ywein, over land at Weston, `because the king wishes to know what entry Ywein had into that land and how they lost it.’205 Robert, who was more often recorded as Robert Baggard, riposted by proffering forty marks for the assize (of mort d’ancestor) to continue, and prevailed, royal justices being ordered to hear the case, explicitly `because Robert has promised the lord king forty marks so that the assize may proceed’.206 The case ended in the following year, when his opponents bought Robert out of the land for just over £43.207 They did not, however, also have to pay what they had offered the king, for in 1205 the debt was cancelled, with the justiciar recording that `he [Noel] should not be summoned as he did not have what he proffered for’,208 whereas Robert paid most, but perhaps not all, of his proffer.209

In cases like these the bidding for royal favour appears to have been that of the litigants alone, but it could be actively encouraged by the king. Probably in 1207 Roger de Ginges claimed half a carucate of land in Paglesham, Essex, against Robert de Bouton. The case went to the grand assize, but several delays followed, one of them caused by Robert’s having essoined on the grounds of illness. It was recorded in the autumn of 1211 that in accordance with the regulations, four knights had been sent to view him, but they failed to do so, and in any case Robert had risen from his sickbed, as he himself admitted. This was in breach of the protocols governing essoins, which laid down that no-one spared attendance because he was sick could rise from his bed within a year and a day unless granted permission by the court, as Roger at once pointed out. Robert proffered forty marks to have his transgression overlooked, whereupon Roger offered the same sum `for having judgment’. That was not enough, but for fifty marks Roger obtained what he wanted, with seisin being awarded to him on the grounds of what in law constituted a default on Robert’s part.210 Robert was in the wrong, but seems to have lost his case ultimately because his proffer was lower than that of Roger, who himself incurred a fifty-mark debt for a judgment he should have obtained for nothing (he had paid over half of it by 1218, but still owed just over £6 in 1224).211

 

A mixture of motives

(a) D’Oilly versus Paynel

John’s involvement in the administration of justice arose initially from the claims of his office, and there is sufficient evidence to show that on numerous occasions he responded to those claims both efficiently and conscientiously. But the surviving records also leave little doubt that the demands of his conscience were all too often overpowered by other considerations – financial gain, political advantage or simple personal dislike, either individually or in combination. Hence, for instance, his treatment of an extended lawsuit over the manor of Watlington, Oxfordshire, between Henry d’Oilly, lord of the barony of Hook Norton, also in Oxfordshire, and William Paynel and his wife Sarah de Bidun. D’Oilly, whose ancestors had held Watlington in 1086 but lost it in Stephen’s reign, began his action no later than 1207, when the Paynels, who held the manor in Sarah’s right, proffered 100 marks and two palfreys to have proceedings respited, a move probably linked to Sarah’s essoin at Michaelmas that year on the grounds of ill health, one which was upheld by the knights who viewed her and reported that she was indeed sick.212 The action was still in progress in 1210, but probably in the following year Sarah died, whereupon the land was taken into the king’s hand213 (it lay within the honour of Wallingford, which was not only a royal escheat but had also formed part of the appanage granted by Richard I to John in 1189, so that the latter may have felt he had a double interest in it). By this time half the proffer of 1207 had been paid, but Paynel now proffered a further £100 and a palfrey to have Watlington (and two other properties) for life. Sarah appears to have died childless, and her husband would ordinarily have had no right to the life tenure which he could have claimed had there been even short-lived children of his marriage. As it was, Paynel continued to hold Watlington, while his two debts were amalgamated by the exchequer, but he died before they could be cleared.214

What happened next is revealed by litigation recorded several years later, in 1220, when Henry d’Oilly was called into the Bench to explain a settlement he had made with Peter FitzHerbert over the manor of Watlington at the previous year’s Berkshire eyre.215 He then claimed that his action against William Paynel had so far proceeded that they had made a settlement, and that he (not the king, according to this account – perhaps John only confirmed, for a consideration, an arrangement which had been made without his involvement) had given Paynel a life interest in the manor, but that after Paynel’s death John had intervened, taking the manor into his own hand per voluntatem suam and entrusting it to Peter FitzHerbert (this is confirmed by John’s order to the constable of Wallingford, given on 15 April 1216, instructing him to cause Peter to have Paynel’s land in Watlington, which the king had committed to him).216 Peter had subsequently made an agreement of his own with d’Oilly, something he had no right to do because Watlington was not his to dispose of, since he had only the custody of it (de ballio). John had been prepared to take money from the Paynels, as he did twice, but he was probably also strongly influenced by dislike and distrust of d’Oilly, whom he treated harshly over a debt owed to an Oxford Jew which John had taken into his own hand, and who had joined the rebels against the king by mid-November 1215.217 Peter FitzHerbert, by contrast, was a stalwart henchman of the king’s. The same case shows John using competing interests in a property as grounds for raising money, for thwarting the aspirations of a perceived adversary, and for bestowing a favour upon a trusted servant.

 

(b) Caldbeck versus Courtenay

The king was probably moved by similar considerations in his treatment of a still more complex dispute, one extending over at least six years, arising from Alexander of Caldbeck’s action against Robert de Courtenay and his wife Alice for nine carucates of land (over 1000 acres) in Caldbeck, Cumberland. In 1200 Alexander proffered first twenty marks, and then fifty marks and a palfrey, for an inquest into whether he had been committed, together with the disputed land, to the wardship of his grandfather Gospatric FitzOrm, lord of Workington and Seaton, who had subsequently been disseised by Reginald de Lucy, Robert de Courtenay’s brother-in-law.218 Courtenay, who was lord of Cockermouth and of Allerdale below Derwent in the right of his wife, and thus a formidably powerful man in north-west England, riposted with an identical proffer to have the inquest stopped, and undertook to stand to right in the king’s court should anyone wish to sue against him, thus ensuring that any further proceedings took place in what he doubtless felt were likely to be favourable conditions.219 Neither of Alexander’s proffers was even entered on the pipe roll, but Courtenay paid twenty-five marks in 1203220 (it is unclear if he paid the rest), and in doing so underlined his advantage over his opponent.

Alexander continued to sue, however, and in 1204 he made a further proffer for an inquest, this time of £100,221 and presumably as a result a jury was summoned,222 but Courtenay had remained on the alert, and in a memorandum of 1205 was recorded as having offered 100 marks `that the inquest should not ever proceed over nine carucates of land etc.’.223  This proffer, too, was not paid – it was not even entered on the pipe roll – and may have been only a tactical gesture. It is possible, indeed, that John briefly gave Alexander possession of the land he sought, but if such an award was made it flattered to deceive, for in 1206 Robert de Courtenay and his wife proffered £200 and two palfreys `for having seisin of the half of Caldbeck township of which Alexander of Caldbeck had seisin on the king’s order, so that thereafter they are treated [as lords] over the whole of Caldbeck township, in accordance with the custom and law (assisam) of the kingdom.’224 It was a bid which Alexander could not match, and when his case came into court in Easter term 1206 he threw in his hand, telling the justices that `he did not wish to sue further for that jury as it does not please the king that he should have it.’225 His proffer was cancelled accordingly, `because Robert de Courtenay has that land by the fine below of 300 marks and two palfreys ‘226 – the cause of Robert’s victory could hardly have been made more explicit.

Had all the proffers made during this case been paid, they would have amounted to just under £450, with Alexander contributing £136. 13s. 4d. in all, and the Courtenays £306. 13s. 4d. In fact Alexander is not recorded as paying anything at all, and it is possible that all his proffers were essentially gestures, made in the hope of attracting the king’s attention. Only the proffers made by the Courtenays brought money into the exchequer, but they were decisive, especially the second, which was very largely paid – within two years all but the palfreys had been handed over.227 The longer purse certainly prevailed, but so too, without much doubt, did the king’s political interest. John was probably not greatly interested in the justice or otherwise of Alexander’s case, but he might well have been wary of re-opening ancient disputes in a part of his kingdom where he had many opponents and few committed friends. The evidence suggests that Alexander could assert his descent, and thus his right in Caldbeck, through his grandfather from that Gospatric who had been earl of Northumbria in the years immediately after 1066, and whose grandson Alan son of Waldeve had been granted Allerdale below Derwent by Henry I.228 Possibly Alexander was the son and namesake of the Alexander recorded as the youngest son of Gospatric FitzOrm. The disseising of the latter was probably a consequence of the latter’s disgrace in 1174, when he surrendered Appleby to invading Scots without a fight, in a war whose aftermath entailed the political reorganisation, and a substantial advance by royal power, throughout the whole of the north of England.229 Since allowing a detailed inquest into Alexander’s case might bring all sorts of half-forgotten claims and half-buried injustices to light, it was only prudent to ensure that none was held, while at the same time upholding the rights, and receiving the money of Robert de Courtenay, whose support John might reasonably have thought worth having (in the event Courtenay died soon after these proceedings came to an end, so his loyalty was never put to the test).

 

(c) Montbegun versus Port

Alexander of Caldbeck’s lawsuit was problematic for John in that complex legal issues were complicated further by considerations of his own political advantage and financial gain, perhaps especially the former. Those considerations seem to have prevailed, for it appears unlikely that Alexander received justice, but it is by no means certain that the king’s interests were served either, whether in this case or in others affected by the same extraneous factors. In 1200 the Lancashire magnate Roger de Montbegun proffered 500 marks for the marriage of Olive, the widow of Robert de St John, joint-lord (with his brother William) of the Sussex honour of Halnaker, with all her land and inheritance, including her dower, and paid off his debt during the next ten years (140 marks were pardoned).230 But at the same time he faced an obstacle to his tenurial ambitions in the form of William de Port, the son of Adam de Port, lord of Basing, and his wife Mabel, who was the niece of Robert and William de St John, and brought an action against him, most likely for Olive’s dower. William’s estates were then in the custody of Fulk Paynel, lord of Bampton in Devon, who had recently recovered properties forfeited in 1185 with the help of William Brewer,231 and Paynel now put a stop to Montbegun’s lawsuit, by showing letters from the king to the justiciar, granting him peace `for all his lands and wardships’.232 One William de Mustell, who had similarly brought an action against William de Port, also for land in Sussex, simply abandoned the case, which was adjourned sine die on the king’s order.233

In 1202 William de Port pursued his advantage to proffer £150 for the St John lands in England, and Halnaker, at least, remained in his family into the fourteenth century.234 Montbegun seems to have secured some of his wife’s inheritance, above all at Broughton, Lincolnshire, and Oswaldbeck, Nottinghamshire.235 but he must have hoped for significant gains in the south of England as well. As it was, any aspirations he had there were thwarted, and although he paid more than Port he appears to have received much less. The Ports were another example of a family with a substantial interest in Normandy,236 and John may on those grounds have thought it advisable to do what he could to retain their support. But Montbegun had followed the future king into rebellion in 1194, when he was prominent in holding Nottingham Castle against forces loyal to Richard I,237 had had to proffer 500 marks, nearly all of which he paid, to recover his lands afterwards,238 and could reasonably have hoped for favours from a man on whose behalf he had made considerable sacrifices. Instead, John took his money but failed to give him what he had paid for. Unsurprisingly, Montbegun was prominent both in resistance to the king in 1204/5, and in rebellion at the end of John’s reign (he was one of the twenty-five barons charged with maintaining Magna Carta).239 But although the king sacrificed Montbegun’s loyalty, he failed to win that of William de Port (who took his mother’s family name of St John), who became as active in rebellion in Hampshire as Montbegun did in the north.240 Failure to do justice to one party to a dispute was no guarantee of influence over the other, indeed, it may simply have increased distrust of the king, even among those who received judicial benefits from him.  

 

Making enemies: the constabulary of Richmond

There were many ways in which a king could manipulate the course of justice once an action had begun. It was also open to him to refuse to hear a case at all, an action which was not necessarily always an act of injustice. The most striking, and best known, example of a lawsuit which John should arguably not have agreed to hear was the claim made in 1208 by one Robert Cotele against Ruald FitzAlan, constable of Richmond, for four Yorkshire manors and six and a half knights’ fees, together comprising half the constabulary of Richmond.241 Ruald’s ancestors had held the entire constabulary under Henry I, but a competing grant under Matilda, and then a division under Henry II, had resulted in half of it being held by members of the Rollos family until 1204, when the forfeiture of William de Rollos following the loss of Normandy had enabled Ruald to reunify it.242 To achieve this he proffered £100 and two palfreys in 1205, with the proviso that `he is not to be disseised of those lands except by the judgment of the lord king’s court,’ and was given a royal charter, in terms almost identical to those of his proffer, dated 10 March 1205.243 Nevertheless Ruald seems to have felt that his title in one of the manors, that of Brompton-upon-Swale, stood in need of strengthening, for a year later he made a further proffer of 100 marks and a palfrey `for having the land of Brompton ...’.244 By Michaelmas 1207 both his proffers had been paid.245

Nothing is known of Cotele outside this action. His claim, which was notably lacking in corroborative detail, was that his mother (unnamed) was the aunt of the William de Rollos who forfeited in 1204, and that he was therefore the heir of Richard (i) de Rollos, who had been active in the reigns of Henry I and Stephen, and from whom his right to half the constabulary had descended. The nature of his claim meant that he could not have sued by a writ of mort d’ancestor, and he did not claim to have been disseised, only that Ruald `deprives’ (deforciat) him of his inheritance. Perhaps John asserted that as the fount of justice he was obliged to hear the case, and that the proviso of 1205 had raised the possibility of the action which Cotele was now bringing. No such proviso was attached to the grant of 1206, however, and in any case Ruald, who protested that he had not been cited `as for a plea’, must have been outraged that despite two proffers and a royal charter he was still expected to defend his right in lands which he could reasonably have felt he had done everything possible to secure. In the end nothing came of the action, which was almost certainly allowed, or even encouraged, by John as an additional punishment for Ruald’s opposition to the previous year’s thirteenth. For this he had already been amerced of 200 marks and four palfreys and temporarily disseised of Richmond Castle,246 but John may have thought that the threat of losing half his recently-recovered inheritance would act as an additional constraint upon him. In all likelihood it had exactly the opposite effect, for Ruald and his retainers were prominent, and determined, in resisting the king during the civil war.247

 

Wider issues

Containing only nine Latin words, Clause 40 is the shortest in the whole of Magna Carta, but was arguably the widest in its scope, laying a concise but emphatic ban upon a huge range of long-established governmental practices and devices. The abuses it aimed to remedy were not invented by King John, and though his exploitation of them was probably stepped up as his reign progressed, he does not appear to have done anything in the second half of his reign that he cannot also be found doing in its first. The judicial system which he inherited in 1199 contained a rich potential for wrongdoing which the king could exploit as he chose. It should be added that the extent of that wrongdoing cannot be exactly determined, for it is likely that many of John’s actions were either enrolled in records which are now missing, or were never recorded in the first place. A case from Devon illustrates the problem. In 1218 one William Treminet brought an action of novel disseisin against William Pipard for land at Larkbeare, near Exeter, of which he claimed to have been dispossessed some time after the summer of 1210. Eight of the jurors found against Treminet, but the ninth, Gerard de Clist, broke ranks with his colleagues and declared that the land had been Treminet’s until Pipard disseised him `through his money which he gave to King John’ (per pecuniam suam quam dedit domino Regi J). The other jurors, questioned a second time, now agreed with Clist that `in truth William Pipard gave his money to King John and William Treminet was so disseised by the lord king for his money’. The justices adjourned proceedings, but Treminet did not appear on the specified day and lost the case by his default.248

The plaintiff’s withdrawal is only one of several puzzling features of this case. There is no surviving record of any payment by Pipard. There may have been one entered on the lost pipe roll for 1213, but the money could also have been paid into the king’s chamber, and so never recorded by the exchequer at all. And the facts, and issues, are only obscured further by John’s order to the sheriff of Devon, given in July 1216, that he should put William Treminet in possession of land at Larkbeare `which was William Pipard’s’,249 thus seeming to reverse the king’s presumably earlier action on the latter’s behalf. The implication of the order is that Pipard had rebelled, so providing Treminet with an opportunity to recover what he had lost, but there is no confirmatory evidence for this. It is possible, indeed, that the jurors’ findings in 1218 were themselves ill-founded, and represented an attempt to gain a forensic advantage on the basis of John’s posthumous ill-repute in matters of law, rather than providing a reliable account of anything that actually happened.

John’s ill-repute – to which Clause 40 has made a lasting contribution – owed much to the confusions and uncertainties attendant upon cases like that of Treminet versus Pipard, and was itself the natural consequence of the improvisatory character of Angevin administration, with its tendency to bypass the settled routines and agencies of government, and of the way in which that administration took its character from the personality of the ruler who directed its operations, whether these involved matters of war, finance or law. In the years around 1200 the belief that justice was the king’s, and that the men who dispensed it, and had been appointed by the king to do so, were required to maintain his interests and obey his commands, was still fundamental to its administration. The advantages inherent in that outlook, both fiscal and political, were such that King John was very unlikely to want to relinquish them.

The Bible gave precedents for a concept of justice as an abstract force existing in independence of the human agencies which provided it. Clause 40 was not formulated in order to uphold this idea, but through its demand for an end to royal interference, however it was exerted and for whatever purposes, it created a space within which it could develop. It was probably not alone in doing this, or at least in trying to do so. The justices’ clerk who noted of a royal decision early in John’s reign that `this inquest was made by command of the lord king, not by a judgment of the court or according to the custom of the realm’,250 may have been expressing his irritation at an amateur’s intrusion into a world increasingly dominated by professionals, rather than registering a protest at an infringement of judicial independence. But there are occasional signs of such independence all the same, for instance the assize of novel disseisin which Albert of Willisham brought against Hugh de Malo Alneto for land in Suffolk in 1205. The king directed the justices not to hear the case, but Albert objected to the formulation of the writ conveying the royal command, the justices agreed with him, and in defiance of their instructions they ordered that proceedings should continue (its outcome is unknown).251

Not all those justices who rebelled, or were suspected of being rebels, at the end of John’s reign were necessarily moved only by personal grievances, some may have objected to the king’s manipulation, or overriding, of legal processes as well, in the process showing that the venality sometimes alleged against them was not the only force capable of influencing their actions. The six justices who subscribed a well-known protest to the regency government from their eyre in Lincolnshire in 1219, objecting to an attempt to interfere in their conduct of a lawsuit between Gilbert de Gant and the count of Aumâle, had all been active in government under King John, and though none of them could probably be described as professional justices, both John Marshal, who on a few occasions sat in the court coram rege,252 and William de Cressi, who acted as an assize justice,253 had at least some judicial experience. Three of the six had remained loyal to John to the end of his reign, the others had either rebelled or been suspected of baronial sympathies, but soon came into King Henry’s allegiance after his father’s death. When such men claimed to see themselves as `owing justice to all and each, poor and rich equally, without distinction of persons’,254 they may well have been adopting a position with regard to the administration of law which had been gathering impetus during the previous reign, strengthened in its development by misgivings over King John’s treatment of the courts, and his exploitation of the justice provided there. That king’s intentions could be seemingly virtuous, while his actions might be constructive and even benevolent, but his sheer inconsistency, reinforcing the effects – all too often on display – of financial greed, political chicanery and personal malice, more than offset his positive qualities. Clause 40 aimed to prevent the king’s personal failings from affecting the operation of his courts, but it achieved more than that, for it set in motion a long-drawn-out process which eventually enabled those courts to function in separation from government altogether. In the reissue of Magna Carta in 1225 it was linked to Clause 39, and in that form it has remained on the statute book up to the present day

1

J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 427.

2

D. Carpenter, Magna Carta (2015), 355.

3

A point I owe to Paul Brand, along with many others which have greatly improved this commentary.

4

Cf. D.M. Stenton, English justice between the Norman Conquest and the Great Charter, 1066-1215 (1965), 93 – `The King was endeavouring to tread the narrow course between the letter of the rigid law and formless equity.’

5

G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 2.

6

E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 180-1.

7

Full details can be found in R.V. Turner, The English judiciary in the age of Glanvill and Bracton, c. 1176-1239 (Cambridge, 1985),

8

H.L.D. Ward, `The vision of hell, probably by Ralph of Coggeshall, printed from a MS in the British Museum’, Journal of the British Archaeological Association 31 (1875), 420-59, at 452-3. See also Turner, English judiciary, 116-17.

9

John of Salisbury, Policraticus, ed. and trans. C.J. Nederman (Cambridge, 1990), 96-7.

10

Walter Map, De nugis curialium: courtiers’ trifles, ed. and trans. M.R. James, rev. C.N.L. Brooke and R.A.B. Mynors (Oxford, 1983), 13, 508-9.

11

C. Morris, The papal monarchy: the western church from 1050-1250 (Oxford, 1989), 408-9; C.R. Cheney, Innocent III and England, Päpste und Papsttum 9 (Stuttgart, 1976), 109-111.

12

J.E. Sayers, Papal judges delegate in the province of Canterbury, 1198-1254 (Oxford, 1971), 133-5.

13

W. Stubbs (ed.), Gesta Regis Henrici Secundi Benedicti Abbatis, 2 vols. (Rolls Series, 1867), i, 357.

14

D. Whitelock, M. Brett and C.N.L. Brooke (eds.), Councils and Synods, 1066-1204, 2 vols. (Oxford, 1981, continuously paginated), 1050 (c. 10); F.M. Powicke and C.R. Cheney (eds.), Councils and Synods II, 1205-1313, 2 vols. (Oxford, 1964), i, 34 (c. 52).

15

Glanvill, 28.

16

See, e.g., Turner, English judiciary, 159-60

17

Curia Regis Rolls i: Temp. Rich. I-1201 (1922), 462.

18

British Library, MS Cotton Vesp. E. iii, fol. 173r.

19

Map, De nugis curialium, 499.

20

H.G. Richardson (ed.), The memoranda roll for the Michaelmas term of the first year of the reign of King John (1199-1200), Pipe Roll Society, new series 21 (1943), xlix n. 1.

21

R.V. Turner, The king and his courts: the role of John and Henry III in the administration of justice, 1199-1240 (Cornell, 1968), 120.

22

R.V. Turner, Judges, administrators and the common law in Angevin England (1994), 105-6.

23

Walter Map, De nugis curialium, 479, 485, 511-13.

24

Giraldi Cambrensis opera viii: De principis instructione liber, ed. G.F. Warner (Rolls Series, 1891), 160.

25

R. Anstruther (ed.), Radulfi Nigri chronica: the chronicles of Ralph Niger, Caxton Society 13 (1851), 167-9.

26

R.C. van Caenegem (ed.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), ii, 397-404. For the background see Paul Brand, `Anstey, Richard of (c. 1137-1194/5)’, Oxford Dictionary of National Biography, Oxford University Press, May 2006; online edn., Jan. 2008 [http://www.oxforddnb/view/article, 92468, accessed 18 May 2015].

27

PR 32 Henry II (1186), 36; PR 2 Richard I (1190), 113.

28

PR 11 Henry II (1165), 42; H. Hall (ed.), The red book of the exchequer, 3 vols. (Rolls Series, 1896), i, 206; the payment of the last 2s. 3d. of William’s debt is recorded PR 5 John (1203), 140.

29

PR 18 Henry II (1172), 53; Hall, Red book, i, 321, 324;

30

PR 33 Henry II (1187), 73-4; W. Farrer, Honors and knights’ fees ii (1924), 208-9.

31

PR 16 Henry II (1170), 83; PR 17 Henry II (1171), 50.

32

PR 23 Henry II (1177), 114.

33

PR 31 Henry II (1185), 182; Hall, Red book, i, 93, 107, ii, 605; Farrer, Honors and knights’ fees iii (1925), 356.

34

PR 23 Henry II (1177), 134.

35

PR 31 Henry II (1185), 72. The printed text of the pipe roll has `justiciis’ for the original’s justic’ (TNA, E 372/31 m. 5d), but in this context justiciario seems more likely. Lacy held over forty knights’ fees in Yorkshire – Hall, Red book, i, 77.

36

Dialogus de Scaccario, 180-1.

37

Walter Map, De nugis curialium, 508-9.

38

PR 21 Henry II (1175), 125; PR 34 Henry II (1188), 55.

39

Curia Regis Rolls vii, 1213-1215 (1935), 9-10.

40

PR 31 Henry II (1185), 109; PR 4 Richard I (1192), 269. For Sandford see Liber feodorum: the book of fees commonly called Testa de Nevill, 3 vols. (1920-31), ii, 839.

41

PR 5 Richard I (1193), 144. The serjeanty was variously described as performed in the king’s buttery and larder – Book of fees i, 15, 22.

42

PR 6 Richard I (1194), 249.

43

PR 8 Richard I (1196), 186; Book of fees i, 23-4.

44

PR 7 Richard I (1195), 105; PR 8 Richard I (1196), 39-40.

45

PR 4 Richard I (1192), 288.

46

Glanvill, 174.

47

PR 8 Richard I (1196), 108.

48

PR 6 Richard I (1194), 174; the different name is recorded PR 7 Richard I (1195), 133 onwards.

49

PR 6 Richard I (1194), 171.

50

Ib., 190.

51

PR 3 John (1201), 32; PR 4 John (1202), 90; PR 8 John (1206), 129; I.J. Saunders, English baronies: a study of their origin and descent, 1086-1327 (Oxford, 1960), 64.

52

PR 8 Richard I (1196), 148. Payments of the money become increasingly difficult to trace as the debt was shared out among descendants and kinsmen, but at least fourteen marks from it was still owing in 1232 – R.A. Brown (ed.), Memoranda rolls 16-17 Henry III (1991), no. 1212 (p. 88).

53

PR 8 Richard I (1196), 249; Farrer, Honors and knights’ fees ii, 96-7.

54

PR 9 Richard I (1197), 154 – the money was paid within a year.

55

Turner, The king and his courts, 21-2.

56

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 3.

57

PR 2 John (1200), 157; Curia Regis Rolls i, 471.

58

Curia Regis Rolls ii, 1201-1203 (1925), 157; D.M. Stenton, Pleas before the king or his justices, 1198-1202, ii, no. 899 (p. 265); D.M. Stenton (ed.), The earliest Northamptonshire assize rolls, A.D. 1202 and 1203, Northamptonshire Record Society 5 (1930 for 1928-9), no. 604 (p. 92).

59

Curia Regis Rolls ii, 114.

60

Ib., 40

61

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 76; PR 3 John (1201), 222; Curia Regis Rolls ii, 37-8; Stenton, Pleas before the king or his justices, 1198-1202, i, no. 3181 (p. 313), ii, nos. 622-4 (pp. 179-80). These adjournments did the abbot no perceptible good. Tewkesbury had held both churches in 1107, but no longer did so in 1176, and they were in the possession of the Grenvilles later in the thirteenth century: British Library, MS Cotton Cleop. A. vii, fols. 73v, 76v; O.F. Robinson (ed.), The register of Walter Bronescombe, bishop of Exeter, 1257-1280, 3 vols., Canterbury and York Society 82, 87, 94 (1995-2003), i. nos. 720, 1124, ii. no. 317.  

62

Curia Regis Rolls iii, 1203-1205 (1926), 213, 297; PR 9 John (1207), 109. For Levesque see Book of fees i, 178, and 492, where he is recorded as collector of an aid in Cambridgeshire in 1235/6.

63

PR 5 John (1203), 197; Curia Regis Rolls ii, 277-8, iii, 31. Agnes’s debt continued to be entered on the pipe roll until 1212; it was latterly charged to her heirs, indicating that she had died.

64

Curia Regis Rolls i, 193, ii, 134.

65

Rot.Ob.Fin., 189; PR 5 John (1203), 5-6.

66

PR 5 John (1203), 6.

67

T.D. Hardy (ed.), Rotuli de liberate ac de misis et praestitis, regnante Johanne (Record Commission, 1844), 41-2.

68

See Holt, Magna Carta, Chapter 5, especially 126-8, 150-7.

69

G.J. Turner and T.F.T. Plucknett (eds.), Brevia placitata, Selden Society 66 (1951 for 1947), xlviii-li.

70

PR 9 John (1207), 37; PR 10 John (1208), 100.

71

Curia Regis Rolls ii, 245; iii, 82, 242, 333; iv, 1205-1206 (1929), 106, 232, 301; PR 10 John (1208), 100.

72

PR 1 John (1199), 289; Curia Regis Rolls i, 92-3.

73

PR 5 John (1203), 193; PR 6 John (1204), 109; Curia Regis Rolls ii, 141.

74

PR 8 John (1206), 168; Curia Regis Rolls iv, 121.

75

Rot.Ob.Fin., 542; PR 16 John (1214), 134; Curia Regis Rolls vii, 134.

76

Rot.Ob.Fin., 348.

77

PR 10 John (1208), 168.

78

Curia Regis Rolls v, 1207-1209 (1931), 226, 235-6.

79

PR 4 John (1202), 115; PR 10 John (1208), 4. A number of cases initiated and concluded under expensive writs are discussed elsewhere in this commentary.

80

Holt, Magna Carta, 150-1.

81

Curia Regis Rolls i, 153, 382, 429; PR 3 John (1201), 53; PR 4 John (1202), 251. For comment on this case see also D.M. Stenton, English justice between the Norman Conquest and the Great Charter, 1066-1215 (1965), 93.

82

Curia Regis Rolls vi, 1210-1212 (1932), 176; PR 14 John (1212), 155.

83

Curia Regis Rolls vi, 218-19, 322; vii, 120; E. Green (ed.), Feet of fines for the county of Somerset, Richard I to Edward I, Somerset Record Society 6 (1892), 28. Alfred’s proffer was entered on the 1212 pipe roll, but had either been paid or abandoned by 1214 – PR 14 John (1212), 120.

84

Curia Regis Rolls iii, 317; iv, 23; Rot.Ob.Fin., 300; PR 8 John (1206), 30; PR 9 John (1207), 173.

85

Rot.Ob.Fin., 278; Curia Regis Rolls iii, 263, 301, 334, 347; iv, 42-3; PR 14 John (1212), 106 records the final payment of the debt. Bruewere was a tenant of Gant’s in Lincolnshire – J.C. Holt, The Northerners: a study in the reign of King John (Oxford, 1961), 52 n. 6.

86

Curia Regis Rolls i, 383; PR 4 John (1202), 163; Rot.Ob.Fin., 49, 188. See also Holt, Northerners, 240.

87

Rot.Ob.Fin., 120; Curia Regis Rolls i, 439; Rot.Lit.Claus. i, 53.

88

Rot.Ob.Fin., 171; PR 3 John (1201), 72; PR 4 John (1202), 267; PR 10 John (1208), 31.

89

Sir William Dugdale, Monasticon Anglicanum, eds. J. Caley, H. Ellis and B. Bandinel, 6 vols. (1819-30), iii, 314-15.

90

Ib., 287. For the background to and outcome of the case, see Holt, Magna Carta, 135.

91

Curia Regis Rolls vi, 203-4, 247.

92

Curia Regis Rolls vi, 279; vii, 54. No reference to Robert’s proffer has been noticed in either the fine rolls or the pipe rolls.

93

Rot.Ob.Fin., 360, 375-6; Curia Regis Rolls iv, 177; v, 165; vi, 3 ; PR 9 John (1207), 178; PR 10 John (1208), 12.  For Henry FitzGerold see D. Crouch, William Marshal: knighthood, war and chivalry, 1147-1219 (2nd edn., 2002), 222.

94

Rot.Ob.Fin., 68; PR 2 John (1200), 265; Curia Regis Rolls i, 370

95

Rot.Ob.Fin., 427; Curia Regis Rolls vi, 160.

96

Rot.Ob.Fin., 346; Curia Regis Rolls v, 280; PR 11 John (1209), 198-9; PR 12 John (1210), 201.

97

D.M. Stenton (ed.), Pleas before the king or his justices 1198-1212, iv, Selden Society 84 (1967) nos. 3446, 3450; PR 7 John (1205), 52; PR 8 John (1206), 200.

98

PR 2 John (1200), 206

99

Rot.Ob.Fin., 93; Rot.Chart., 84.

100

PR 5 John (1203), 148.

101

Rot.Ob.Fin., 237.

102

Curia Regis Rolls iv, 262.

103

Curia Regis Rolls vii, 97.

104

The phrase is that of A.L. Poole, Obligations of society in the XII and XIII centuries (Oxford, 1946), 66.

105

TNA, JUST 1/818 m. 45d; E.J. Gallagher (ed.), The civil pleas of the Suffolk eyre of 1240, Suffolk Records Society 52 (2009), no. 328.

106

PR 2 John (1200), 50; Curia Regis Rolls i, 264, 397, 418; PR 4 John (1202), 266.

107

PR 6 John (1204), 44; Rot.Lit.Pat., 38. For his links with the Umfravilles see Curia Regis Rolls v, 58-9.

108

Rot.Ob.Fin., 301-2; PR 7 John (1205), 117; PR 8 John (1206), 51; PR 9 John (1207), 34.

109

F.R.H. Du Boulay, The lordship of Canterbury: an essay on medieval society (1966), 200-1.

110

C.R. Cheney, Hubert Walter (1967), 112.

111

Rot.Lit.Claus. i, 76; PR 9 John (1207), 61 (the debt was paid within three years).

112

Rot.Ob.Fin., 189; PR 4 John (1202), 95; PR 5 John (1203), 156; PR 11 John (1209), 98-9.

113

PR 5 John (1203), 77; Curia Regis Rolls ii, 31; iii, 256; iv, 25

114

PR 8 John (1206), 237; Rot.Ob.Fin., 360; Curia Regis Rolls iv, 120, 280; v, 61; R.E.G. Kirk (ed.), Essex fines i: 1182-1272 (Colchester, 1899-1910), 42. Amaury’s payments are recorded PR 10 John (1208), 34; PR 11 John (1209), 196. The remaining twenty-two marks were entered on a pipe roll for the last time PR 2 Henry III (1218), 69.

115

PR 3 John (1201), 290; PR 4 John (1202), 214; Curia Regis Rolls i, 265, 400, 421; ii, 40..

116

J. Gillingham, Richard I (Yale, 1999), 313.

117

PR 14 John (1212), 85; Curia Regis Rolls vi, 321, 397-9. For the background to the dispute, see Victoria County History of Sussex V:i (1997), 182-90.

118

Cheney, Hubert Walter, 107; Du Boulay, Lordship of Canterbury, 100.

119

F.M. Powicke, The loss of Normandy, 1189-1204 (2nd edn., Manchester, 1961), 333.

120

Rot.Ob.Fin., 410; Curia Regis Rolls v, 72. The debt was finally cleared in 1224, PR 8 Henry III (1224), 154.

121

T.D. Hardy (ed.), Rotuli chartarum 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 146-7.

122

Rot.Ob.Fin., 119.

123

PR 33 Henry II (1187), 184; PR 34 Henry II (1188), 99. `Derecestr’ has not been identified; the name suggests a place somewhere on Dere Street, though this lay some distance west of both Wooler and Ford.

124

PR 3 John (1201), 248.

125

PR 5 John (1203), 86.

126

PR 5 John (1203), 58; D.M. Stenton (ed.), Rolls of the justices in eyre ... for Lincolnshire 1218-9 and Worcestershire 1221, Selden Society 53 (1934), no. 1298 (pp. 627-9).

127

Curia Regis Rolls vi, 236, 280; PR 13 John (1211), 65.

128

PR 14 Henry III (1230), 316. In 1242 each of the other two appellees still owed over £30, PR 26 Henry III (1242), 309.

129

Curia Regis Rolls v, 154.

130

Ib., 220-1.

131

PR 11 John (1209), 50.

132

CRR v, 209; CRR vii, 227.

133

PR 3 John (1201), 157-8.

134

PR 1John (1199), 54.

135

Curia Regis Rolls i, 144, 362; ii, 154; J.C. Atkinson (ed.), Cartularium Abbathiae de Whiteby, 2 vols., Surtees Society 69, 72 (1879-81), i, 211 n. 2, ii, 421-2.

136

Palgrave, Rotuli Curiae Regis i, 410; ii, 199; Curia Regis Rolls i, 348; ii, 86; iv, 18; v, 51-2, 139-40; PR 10 John (1208), 188.

137

PR 11 John (1209), 49; PR 12 John (1210), 50; Curia Regis Rolls v, 320. For this case see also Rot.Lit.Pat., 72; PR 9 John (1207), 178; Rot.Lit.Claus. i, 380.

138

Curia Regis Rolls iv, 184-5; Rot.Lit.Claus. i, 71.

139

`Continuatio chronici Willelmi de Novoburgo’, R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II, and Richard I, 4 vols. (Rolls Series, 1884-9), ii, 510-11. John was at York 27-30 March 1210.

140

PR 12 John (1210), 65.

141

PR 8 John (1206), 53; the final payment is recorded PR 8 Henry III (1224), 146.

142

Curia Regis Rolls v, 282.

143

I.J. Churchill, R. Griffin, F.W. Hardman (eds.), Calendar of Kent feet of fines, Kentish Archaeological Society records branch 15 (1956), 121-2.

144

Victoria County History of Buckinghamshire iv (1927), 215-16.

145

For Robert’s career see Matthew Strickland, `Fitzwalter, Robert (d. 1235)’, Oxford Dictionary of National Biography, Oxford University Press, 2004, online edn., May 2011 [http://www.oxforddnb.com/view/article/9648, accessed 8 July 2014]. Also S. Painter, The reign of King John (Baltimore, 1949), 31-5.

 

146

Curia Regis Rolls i, 116.

147

Stenton, Pleas before the king or his justices, 1198-1202, i, 89; PR 2 John (1200), 48.

148

Rot.Lit.Pat., 17.

149

Powicke, Loss of Normandy, 162.

150

PR 11 John (1209), 190.

151

F. Michel (ed.), Histoire des ducs de Normandie et des rois d’Angleterre (Société de l’histoire de France, Paris, 1840), 182.

152

H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum, 3 vols. (Rolls Series, 1886-9), ii, 200.

153

Curia Regis Rolls i, 178.

154

Rot.Chart., 61. Several writs of protection were entered on the charter roll at this time, but very few as carefully worded as the one granted to St Albans, which seems likely to have been obtained for the specific purpose of delaying FitzWalter’s suit.

155

PR 2 John (1200), 47.

156

The settlement was enrolled ib., 51.

157

H.T. Riley (ed.), Gesta abbatum monasterii Sancti Albani, 3 vols (Rolls Series, 1867-9), ii, 220-4; the passage is translated by R. Vaughan, Chronicles of Matthew Paris: monastic life in the thirteenth century (Gloucester, 1984), 16-19.

158

Gesta abbatum, ii, 226-8; Vaughan, Chronicles of Matthew Paris, 19-22.

159

Dugdale, Monasticon Anglicanum, iii, 345-6.

160

British Library, MS Cotton Claud. D. xiii, fol. 183v.

161

R.A. Brown (ed.), The memoranda roll for the tenth year of the reign of King John (1207-8), Pipe Roll Society new series 31 (1957 for 1955), 114 – a Curia Regis roll of 1198. There was litigation between FitzWalter and the priory over Bacton church two years later, Sir F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols (Record Commission, 1835), ii, 155.

162

Curia Regis Rolls vi, 55-6.

163

Ib., 133-4.

164

Robert’s having gone to Ireland with the king in 1210 is attested by Hardy, Rotuli de liberate, 203, where he is recorded as receiving a prest at Carrickfergus on 25 July.

165

Curia Regis Rolls vi, 196, 273, 284.

166

S. Wood, English monasteries and their patrons in the thirteenth century (Oxford, 1955), 60.

167

For John’s scrutiny of charters see Holt, Magna Carta, 159-60

168

As is also suggested by Holt, Northerners, 80 n. 5.

169

For the romance I have used the English translation by A. Kemp-Welch, The history of Fulk Fitz-Warine (King’s Classics, London, 1904). For commentary on it see M. Keen, The outlaws of medieval legend (2nd edn., 1977), 39-52.

170

PR 7 Richard I (1195), 246.

171

R.W. Eyton, Antiquities of Shropshire, 12 vols. (1854-60), xi, 32-3.

172

Rot.Ob.Fin., 58, 224; PR 2 John (1200), 175.

173

Rot.Chart., 43.

174

Ib., 74.

175

PR 5 John (1203), 67; PR 6 John (1204), 156.

176

Rot.Ob.Fin., 224; Rot.Lit.Pat., 46.

177

Eyton, Antiquities of Shropshire iii, 106.

178

PR 12 John (1210), 113; PR 13 John (1211), 95.

179

Eyton, Antiquities of Shropshire vii, 74-5.

180

Kemp-Welch, 46.

181

The appearance of the Briouzes in the list of Fulk’s pledges suggests that it was drawn up in the previous year, before the family was ruined by the king. The elder William had previously acted as pledge for Fulk’s opponent Wrennoc. His doing the same for Fulk may be a sign of his moving into opposition to King John, or at least of his responding to the latter’s pressure.

182

PR 11 John (1209), 110-12.

183

The case is discussed by Turner, The king and his courts, 159-60; Painter, Reign of King John, 29-30; Holt, Northerners, 172; id., Magna Carta, 148-9, 156. None of them refer to the charter shown at the 1279-81 Yorkshire eyre. For Cottingham see Sanders, English baronies, 37.

184

N. Vincent (ed.), The letters and charters of Henry II, king of England (1154-1189) (Oxford, forthcoming), no. 2563.

185

Stenton, Pleas before the king or his justices i, 112.

186

For details see Hugh M. Thomas, `Stuteville, William de (d. 1203)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/26754]; Hugh M. Thomas, `Mowbray, Roger (I) de (d. 1188)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/19458]; James Tait, `Mowbray, William de (c. 1173-c. 1224)’, rev. Hugh M. Thomas, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/19461]: all accessed 20 May 2015.

187

PR 1 John (1199), 56; PR 2 John (1200), 109; PR 3 John (1201), 150; PR 6 John (1204), 196.

188

PR 7John (1205), 46; PR 8 John (1206), 195; PR 9 John (1207), 82.

189

PR 10 John (1208), 145.

190

PR 11 John (1209), 130-1, 139.

191

PR 12 John (1210), 152.

192

PR 13 John (1211), 33, 52-3.

193

PR 14 John (1212), 36.

194

Rot.Ob.Fin., 90; PR 2 John (1200), 148.

195

PR 2 John (1200), 147; PR 3 John (1201), 138.

196

PR 4 John (1202), 116 – the debt was cleared in 1206, PR 8 John (1206), 238.

197

Curia Regis Rolls iii, 106.

198

PR 6 John (1204), 243.

199

Curia Regis Rolls iii, 106.

200

PR 6 John (1204), 242; the final payment is recorded PR 13 John (1211), 17.

201

Rot.Ob.Fin., 319; PR 7 John (1205), 236; PR 8 John (1206), 30.

202

Rot.Chart., 158-9.

203

PR 7 John (1205), 249.

204

Curia Regis Rolls iii, 118.

205

PR 2 John (1200), 184.

206

Curia Regis Rolls i, 399; Rot.Ob.Fin., 80.

207

Stenton, Pleas before the king or his justices, 1198-1202, i, 89-90

208

PR 7 John (1205), 89.

209

He had paid all but two and a half marks by 1209, when his remaining debt was transferred to another man – PR 11 John (1209), 147.

210

Curia Regis Rolls vi, 126.

211

Roger’s son Ralph became responsible for paying the rest of his father’s debt in 1224 – PR 8 Henry III (1224), 101.

212

PR 10 John (1208), 59; Curia Regis Rolls v, 96.

213

Curia Regis Rolls vi, 107-8, 111, 257.

214

PR 13 John (1211), 13; William’s last payment, recorded PR 16 John (1214), 49, left him owing seven marks and a palfrey. For William Paynel and his wife see C.T. Clay (ed.), Early Yorkshire charters vi: the Paynel fee, Yorkshire Archaeological Society record series, extra series vii (1939), 272-3.

215

Curia Regis Rolls ix, 1220 (1952), 174-5, 205.

216

Rot.Lit.Claus. i, 262.

217

Holt, Magna Carta, 335-6; Rot.Lit.Claus. i, 237.

218

Rot.Ob.Fin., 79. Courtenay’s wife Alice was a daughter and co-heir of William FitzDuncan, who at his death in c. 1154 held the lordships of Copeland and Allerdale, as well as Skipton in the West Riding of Yorkshire. Another of William’s daughters, Mabel, married Reginald de Lucy. Reginald’s son Richard probably conveyed the disputed property at Caldbeck to the Courtenays in settlement of an inheritance dispute.

219

Rot.Ob.Fin., 95.

220

PR 5 John (1203), 255.

221

PR 6 John (1204), 143.

222

Curia Regis Rolls iii, 117.

223

Rot.Ob.Fin., 273.

224

PR 8 John (1206), 44-5.

225

Curia Regis Rolls iv, 99.

226

PR 8 John (1206), 44.

227

PR 10 John (1208), 44.

228

A.J.L. Winchester (ed.), John Denton’s history of Cumberland, Surtees Society 203 (2010), 58-9 (unfortunately the text of Denton’s account of Caldbeck is seriously defective, but the township is stated to have come to William FitzDuncan’s wife, ib., 108-10); Sanders, English baronies, 134.

229

R.C. Johnston (ed.), Jordan Fantosme’s chronicle (Oxford, 1981), 108-9; PR 22 Henry II (1176), 119; Holt, Northerners, 200-1.

230

Rot.Ob.Fin., 41-2; PR 2 John (1200), 110; his final payment was recorded PR 12 John (1210), 152.

231

Rot.Ob.Fin., 4, 71; R.V. Turner, Judges, administrators and the common law, 279.

232

Curia Regis Rolls i, 215-16.

233

Ib., 241.

234

PR 4 John (1202), 142. William is recorded as having paid a total of £31. 6s. 8d. by 1211, after which his debt ceased to be recorded. For Halnaker see Victoria County History of Sussex iv (1953), 142-3.

235

Book of fees, i, 359, 373.

236

Powicke, Loss of Normandy, 344, 352.

237

W. Stubbs (ed.), Chronica Magistri Rogeri de Houedene , 4 vols. (Rolls Series, 1868-71), iii, 240

238

PR 9 Richard I (1197), 114; PR 10 Richard I (1198), 62.

239

See Holt, Northerners, e.g. 10, 19, 100, 205-6.

240

N. Vincent, Peter des Roches: an alien in English politics, 1205-1238 (Cambridge, 1996), 142.

241

Curia Regis Rolls v, 147-8.

242

Details from Holt, Magna Carta, 104-5, 147.

243

Rot.Ob.Fin., 253; Rot.Chart., 143.

244

Rot.Ob.Fin., 356-7.

245

PR 7 John (1205), 58-9; PR 8 John (1206), 202, 219; PR 9 John (1207), 87, 126.

246

PR 9 John (1207), 71.

247

Holt, Northerners, 46.

248

TNA, JUST 1/180 mm. 3d, 6.

249

Rot.Lit.Claus. i, 277.

250

Stenton, Pleas before the king or his justices, 1198-1202, i, 90-1.

251

Curia Regis Rolls iv, 41-2.

252

Curia Regis Rolls v, 304; vi, 218-19.

253

Rot.Lit.Claus. i, 276.

254

W.W. Shirley (ed.), Royal and other historical letters illustrative of the reign of Henry III, 2 vols. (Rolls Series, 1862-8), i, 20-2.

Referenced in

Clause 46 (The 1215 Magna Carta)


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Original Latin

XLI

Omnes mercatores habeant salvum et securum exire de Anglia, et venire in Angliam, et morari et ire per Angliam, tam per terram quam per aquam, ad emendum et vendendum sine omnibus malis toltis, per antiquas et rectas consuetudines, praeterquam in tempore gwerrae, et si sint de terra contra nos gwerrina; et si tales inveniantur in terra nostra in principio gwerrae, attachientur sine dampno corporum et rerum, donec sciatur a nobis vel capitali justiciario nostro quomodo mercatores terrae nostrae tractentur, qui tunc invenientur in terra contra nos gwerrina; et si nostri salvi sint ibi, alii salvi sint in terra nostra.

41

All merchants are to be safe and secure in departing from and coming to England, and in their residing and movements in England, by both land and water, for buying and selling, without any evil exactions but only paying the ancient and rightful customs, except in time of war and if they come from the land against us in war. And if the latter are found in our land at the outbreak of war, they are to be attached without harm to their bodies and goods, until we or our chief justiciar know how merchants of our own land, who are then found in the land against us in war; are being treated, and if ours are safe there, the others are to be safe in our land.

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Commentary for academic researchers

(a) Context and purpose

As the king and the barons competed for the support of London in the early summer of 1215, John’s charter for the capital of 9 May granted the citizens only the freedom to elect their mayor and a general confirmation of their existing rights, the latter qualified by a reservation of his chamberlain’s authority to exploit the city’s trade.1  It was nowhere near enough.  On the 17th the baronial forces entered London, and a month later clause 41 granted two of the demands made by the Londoners in a list drawn up earlier in the year, that `evil’ customs and exactions (`maltotes’) should be abolished, and that foreign merchants should be able to come freely to England.2  It differed in some respects from the corresponding clause among the Articles of the Barons, however, in particular by suggesting that thought was given to trade outside London, for whereas article 31 spoke only of giving merchants freedom to come and go and to buy and sell, and of their freedom from novel customs duties, the Charter extended their safe conduct specifically to cover the whole country.  Clause 41 also clarified the Article’s remit to show that it was essentially concerned with foreigners.  This was spelt out in a concluding sentence about the treatment of merchants in wartime, one whose provisions were developed in the Clause 42 of the Charter, providing for a general freedom of movement between England and other countries, and the restrictions which might need to be imposed upon it.

There was a limit, however, to the amount of rethinking, or rearranging, that the king’s clerks, or the men instructing them, were prepared to do.  Among the Articles, nos. 31 and 33, which became Magna Carta clauses 41 and 42, were separated by no. 32, primarily concerned with scutages and aids, but with a concluding passage about urban liberties, led by those of London, tacked on to it.  In the Charter this Article became clauses 12 and 13, the latter in the form of a general statement guaranteeing their ancient privileges to London and other towns, and saying nothing about taxes.  It might thus appear that Clause 13 would have been better placed where it was before, rather than being left among a group of clauses dealing with fiscal levies.  Its separation from Clauses 41 and 42 may not, however, have been as illogical as might at first sight appear, for its coming next to Clause 41 might well have drawn attention to the way in which it was bound to nullify at least some of the latter’s effects.  The Londoners wanted foreign merchants for the goods they brought and for the stimulus given to their own trade by the commodities which aliens made available, both for retail and for supplying to their best customer, the royal court, whose needs the Londoners largely met even when it was not resident in or near the city.  In his life of St Thomas of Canterbury, written in the early 1170s, William FitzStephen listed some of the costly goods which overseas traders imported, naming wine, gold, jewels, olive, oil, spices, furs, incense and silks, to which can be added cloth, wax (for seals as well as candles) and dyestuffs.3  But the Londoners had no intention of allowing foreigners greater access to English markets than they could avoid, and Clause 13, by safeguarding their traditional privileges, helped them to prevent overseas merchants from engaging in retail trade and – Clause 41’s provision for freedom to buy and sell throughout the country notwithstanding – from using London as a base for commercial activity elsewhere in England.

(b) Early customs

English kings, for their part, had long valued trade, and where possible promoted it, for the goods it made available, and also for the revenues it could provide.  Both Offa and Cnut had obtained concessions for English traders from continental rulers,4 and more recently, in 1180, Philip II of France and Henry II had granted security in identical terms to merchants from each other’s lands.5  That did not, however, extend to freedom from import and export duties. The `ancient and rightful customs’, as these had become established in England by the late twelfth century, consisted essentially of lastage, an impost payable on exports, scavage, a levy on imports, and a duty on the import of wine, payable by the barrel, which was supplemented by the king’s right of `prise’, a form of purveyance which originally entitled him to take what he wanted against future payment, but which by around 1200 became a fixed due.6  A `maltote’ was any unwarranted, or simply innovative, tax.  It was probably in the latter sense that John himself granted French merchants coming into Normandy freedom from the `maltote’ which they had had to pay during the reign of Richard I.7  Richard’s reign had also seen the first nation-wide English customs levy, which was doubtless also seen as a `maltote’.8  Payable at the rate of a tenth, it was probably imposed in 1195, possibly very suddenly, since in 1196 Simon of Kyme was recorded as having fined by 1000 marks `for the ships and merchandise of foreign merchants which he allowed to depart from Boston fair.’9  Presumably they had been permitted to leave without paying the levy expected from them.  The tenth remained in force until the end of Richard’s reign, and its yield was considerable - £549. 4s. 2d. from Norfolk and Suffolk in 1195, £379. 4s. from London a year later, with the latter supplemented by a further £96. 6s. 8d. from merchants paying for permission to import and sell woad.10  That Hugh Oisel, a merchant from Ypres who became a citizen of London, should in 1196 have with his brother offered fifty marks for a two-year licence to trade to England without paying the tenth, illustrates its value and impact.11

Needing support at the beginning of his reign, John discontinued the tenth, which would have sorted ill with his charter for London of 17 June 1199, in which he granted (essentially in confirmation of rights first given by Henry I) `that all the citizens of London be quit of toll and lastage and all other customs throughout all our lands and throughout the seaports on this side of the sea and overseas ...’.12  Less than a year later, on 5 April 1200, he notified the Londoners, and the officials in other ports, that all foreign merchants were to be free to come to and go from England with their wares, paying `the due and rightful and wonted customs’.  Shortly afterwards an identical grant was made directly to the merchants of Flanders and Hainault.13  All were to enjoy the same peace in England as English merchants enjoyed in the lands from which the foreign traders came, a cautionary note which foreshadowed the proviso of 1215, and, like that proviso, stemmed from the principle of reprisal which throughout early medieval Europe gave a measure of protection to merchants by placing members of an offending community in danger of retaliation in the country to which they traded.14  To be effective, reprisals commonly needed government support, which would have to be paid for – in 1203 one Nicholas Morel owed £100 `for arresting merchants of Ghent who took £300 from him at Ghent.’15

(c) The fifteenth and other levies

The grants of 1200 were made during the weeks leading up to the Anglo-French treaty of Le Goulet, concluded on 22 May.  Almost exactly two years later the French king once more attacked the duchy of Normandy, and John, needing money and now feeling no obligation to refrain from exploiting Anglo-French commerce, had by 13 July 1202 imposed a new levy of a fifteenth, specifically directed against merchants from France and Flanders (which from having been allied to England had now come increasingly under French control).16  Although the rate was lower than Richard I’s tenth, the yield was impressive – just over £4950 was accounted for between July 1202 and November 120417 – and it is not surprising that in an ordnance issued at Winchester on 4 June in either 1203 or 1204 (the dating is ambiguous) John should have extended and regularized it, appointing groups of officials in every seaport to collect and record its issues.18  Foreign merchants may have been targeted at first, but from the fact that in 1206 the citizens of London paid 200 marks to be quit of it, it would appear that the fifteenth came to be demanded from English merchants as well.19

Since the terms of a safe conduct granted to foreign merchants two days after the issue of the Winchester regulations show that the fifteenth was exacted on top of, not instead of, the usual customs,20 it may be assumed that those who paid it would have regarded the former, too, as a `maltote’, and its abolition was accordingly provided for in the Anglo-French truce agreed upon in October 1206, which laid down that merchants should come and go paying only `the lawful ancient customs’.21  This clause may not have taken immediate effect – it seems likely that the `maltote’ [mala tolta] from which one Richard de Haverland was exempted in December 120622 was still the fifteenth – but on 13 July 1207 the bailiffs who had been administering and collecting the fifteenth were instructed to submit their final accounts for its issues.23  It seems clear, however, that John was reluctant to lose it, and looked for substitutes.  A duty on woad, which was either continued (it was recorded in 1202)24 or revived, was prominent among them, no doubt because this important dyestuff was principally imported from Picardy, part of the county of Flanders.  An account submitted by the keepers of the seaports in 1211, covering their receipts between Michaelmas 1210 and the following mid-March, contained nearly £380 from woad, another £313 12s. from customs on other goods (as recorded, entirely foodstuffs), £5. 7s. d. from wine, at 4d. the barrel, and £7. 11s. d. received for licensing ships to depart.25  The last item points to the restrictions which John’s increasingly embattled régime was now placing on the movements of merchants and their goods, partly as a means of harassing the king’s enemies, and partly as a means of raising money by charging for release from the constraints thus imposed.  Presumably it was for essentially fiscal reasons that when two merchants from Bayonne in Gascony received letters of safe conduct to come to England to trade in February 1214, it was stipulated that their passports were to be valid only once.26

(d) The treatment of merchants

As this last case shows, many licenses to trade were granted to individuals.  In 1202, for instance, two men, undoubtedly foreigners but described as `merchants of the earl of Leicester’, were granted permission `to go and return and trade, with all their things and wares, throughout our land of England ...’, between 11 July and 29 September, and they were also exempted from paying the fifteenth,27 and two years later Nicholas the Dane of Lund, styled `our demesne merchant’ - probably meaning that he had denizen status28 – was declared quit of all customs duties, on condition that every time he came to England he brought the king a goshawk (birds of this kind from Scandinavia were highly valued).29  Such privileges were usually paid for in cash, as when Simon Curlevach agreed in 1208 to pay £5 for being allowed to take five lasts of hides to St-Valéry in Normandy and come safely back,30 but sometimes also in kind.  Thus in 1208 Hugh of Wells had given a barrel of wine for licence to export 600 horse-loads of grain,31 and a year later one Gerard le Sentier gave two barrels for letters patent licensing him to import a whole shipload of wine.32  But those involved were no less likely to be whole communities, or even nations.  In November 1202 merchants from Portugal were given a general license, and protection, to come to England with their wares, on condition that they paid the usual customs,33 while in 1210, and again in 1213, John followed Richard I’s example by making a generous grant of privileges to the men of Cologne, permitting them to buy and sell throughout the realm, at fairs, in London, and everywhere else, though `saving the liberty of our city of London’ (possibly meaning that they would have to negotiate their own terms with the Londoners).34

Inevitably the king’s finances, and also his political stance, determined his commercial policy.  In May 1213 merchants from Scotland, still feeling the effects of King William’s humiliation by King John in 1209, were granted `free transit’ throughout England with their goods, which were to be released by the officials who had sequestrated them,35 but in August 1214, shortly after the battle of Bouvines had brought Flanders securely under French control, order was given for the arrest of all Flemish merchants in England along with their goods.36  A further order later in the month allowed merchants from Scotland and the lands of John’s ally the German emperor to leave English ports, but the Flemings remained in custody.  English merchants were permitted to go wherever they wanted, but they had first to find security that they would not sail to the lands of the king’s enemies.37  On 26 April 1215, as the political crisis came to a head, a general order commanded that no ships should leave English ports, and that those at sea should return home.38  Throughout John’s reign, his government both imposed heavy taxes on trade and interfered continually with the movements of merchants.

(e) Enforcement

In the immediate aftermath of the issue of Magna Carta, John’s government seems to have taken steps to enforce clause 41.  On 21 July the French king was notified that the authorities in London had been commanded to allow French merchants to leave the city with their goods, and that if this was not done then the French would be entitled to take retaliatory action against the Londoners,39 while on 8 September, in what appears to have been a direct reference to this clause, John informed King Philip that he had quitclaimed all `maltotes’ and would not take them in future.40  Four days later French merchants were given a safe-conduct to trade with England, also with an assurance that `we will not take `maltotes’ or have them taken by our men’.41  But at the same time hostile action against English merchants brought retaliation, very much as prescribed by the Charter – on 8 September order was given for the arrest of Flemish merchants and their goods, until restitution was made to a merchant of Rye of his ship and chattels, seized at Damme on the orders of the countess of Flanders.42  Even after French knights began to arrive in England to support the baronial cause, some French and Flemish traders continued to receive kid-gloved treatment; on 13 April 1216, for instance, Antony of Ghent was given a safe-conduct to come to England with his merchandise, along with an assurance that if war broke out with Flanders then he and his wares would be allowed to leave the country.43  But others seem to have been less gently handled, for on that same day, as John responded to the threat of a large-scale French invasion, the sheriff of Lincolnshire was ordered to have a record made of the goods of French merchants at Lincoln and Grimsby, `until we have taken advice as to whether we should return them to them ...’.44  A month earlier the arrest had been ordered at Yarmouth, and no doubt elsewhere, of Scottish ships, merchants and goods.45  English merchants, even when trading within England, had to find security that they would not `resort to land in enmity to the king, or to the king’s enemies ...’.46  Not for the first or last time, commercial interests took second place to political ones, while still remaining resilient in difficult circumstances.

1

T.D. Hardy (ed.), Rotuli Chartarum , 1199-1216 (Record Commission, 1837 - hereafter Rot. Chart), 207.

2

M. Bateson, `A London municipal collection of the reign of John’, EHR 17 (1902), 480-518, 707-30, at 726.

3

See T.H. Lloyd, Alien merchants in England in the high middle ages (Brighton, 1982), 9; C.N.L. Brooke and G.Weir, London 800-1216: the shaping of a city (1975), chapter 10; P. Nightingale, A medieval mercantile community: the Grocers’ Company & the politics & trade of London, 1000-1485 (Yale, 1995), chapter 3 (William FitzStephen is quoted at 58).

4

D. Whitelock (ed.), English Historical Documents I: c. 500-1042 (1955), 417 (Cnut), 781 (Offa).

5

T. Rymer (ed.), Foedera I:i (Record Commission, 1816), 36.

6

Details from N.S.B. Gras, The early English customs system (Cambridge, Massachusetts, 1918), esp. 21-47.

7

T.D. Hardy (ed.), Rotuli litterarum patentium,1201-1216 (Record Commission, 1835 - hereafter RLP), 16.

8

J. Gillingham, Richard I (Yale, 1999), 277.

9

PR  8 Richard I (1196), 248-9.

10

PR 7 Richard I (1195), 79; PR 8 Richard I (1196), 17.

11

PR 8 Richard I (1196), 295.

12

Rymer, Foedera I:i, 76.

13

Rot. Chart., 60-1.

14

T.F.T. Plucknett, A concise history of the common law (5th edn., 1956), 664: L.F. Salzman, English trade in the middle ages (Oxford, 1931), 260-2.

15

PR 5 John (1203), 33.

16

RLP, 14.  The fifteenth is also discussed by S. Painter, The reign of King John (Baltimore, 1949), 137-9.

17

PR 6 John (1204), 218.

18

Gras, Early English customs system, 217-21.  Paul Brand has pointed out that although the regulations are dated to 4 June 5 John, they actually appear on the patent roll for John’s sixth year, and so may well belong to 1204 rather than 1203.  Since John’s sixth year began on 3 June 1204, it would have been easy for the chancery clerks to overlook the change of regnal year, though inevitably it is impossible to be certain that they did so.

19

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 341.

20

RLP, 43

21

Rymer, Foedera I:i, 95.

22

RLP, 57.

23

ib., 74.

24

PR 4 John (1202), 40.

25

PR 13 John (1211), 186-7.

26

RLP, 110.

27

ib., 14.

28

Lloyd, Alien merchants in England, 13.

29

RLP, 52.

30

PR 10 John (1208), 163.

31

Rot.Ob.Fin., 424.

32

PR 11 John (1209), 138.

33

RLP, 20.

34

Lloyd, Alien merchants in England, 94.

35

T.D. Hardy, Rotuli litterarum clausarum, 1204-1224. (Record Commission, 1833 - hereafter RLC), 133.

36

ib., 210.

37

ib., 211.

38

ib., 203.

39

ib., 221.

40

RLP, 154.

41

ib., 155.

42

ib., 154.

43

ib., 176.

44

R.LC, 260.

45

ib., 269.

46

ib., 259.

Referenced in

Clause 60 (The 1215 Magna Carta)

The regency government of Peter des Roches (The Itinerary of King John)


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Original Latin

XLII

Liceat unicuique de cetero exire de regno nostro, et redire, salvo et secure, per terram et aquam, salva fide nostra, nisi tempore gwerrae per aliquod breve tempus, propter communem utilitatem regni, exceptis imprisonatis et utlagatis secundum legem regni, et gente de terra contra nos gwerrina, et mercatoribus de quibus fiat sicut praedictum est.

42

It is to be lawful in future for every man to depart from our kingdom, and to return to it, safely and securely, by land and water, saving our allegiance, except in time of war for some short time, for the sake of the common utility of the kingdom, [and] excepting those imprisoned and outlawed according to the law of the kingdom, and people from the land against us in war, and merchants who are to be dealt with as aforesaid.

Audio commentary

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Commentary for academic researchers

An extension of Clause 41, licensing merchants to trade freely from and with England, except in times of war, Clause 42 granted the same right to come and go to everyone, while underlining the king’s claim on the allegiance of those who went abroad, and intimating that in wartime such freedom to travel was liable to be briefly restricted.  It also, in an elaboration upon its first appearance in the 33rd of the Article of the Barons, explicitly denied its benefits to offenders against the king’s peace and the inhabitants of lands hostile to the king, just as Clause 41 did to merchants in certain circumstances (a limitation repeated at the end of Clause 42).  Among the Articles, no. 33 was separated from no. 31, which became Clause 41, by an article which, although principally concerned with scutages and aids, closed with a sentence upholding the liberties of London, `both by water and by land’.  This last provision, which was separated from the rest of the article to become the basis of Clause 13 in Magna Carta, when taken together with the articles on either side of it, might seem to suggest that all three were essentially mercantile in their associations, and were largely intended to benefit the city of London.  It is hard to see, however, that Clause 42 gave the Londoners any more than they could already claim under Clause 41, as, indeed, Clause 42 appears to acknowledge in its closing sentence, referring directly back to its predecessor, and it seems likely that its benefits were intended to be more widely spread.

Inevitably, the clause was conditioned by England’s being largely an island-kingdom, and by the opportunities which this geographical accident created for keeping watch over boundaries which were to a considerable extent also coastlines.  Evidence for attempts to prevent people from entering and leaving the kingdom is in fact scanty, but it is clear that mechanisms developed to control the movements of merchants could also be used to supervise the comings and goings of others, whoever they might turn out to be – the unfortunate king’s reeve from Dorchester who confronted three ships off the south coast of Wessex around the end of the eighth century, and tried to send them to the king’s residence, thought he was dealing with merchants, only to discover too late that they were Vikings.1 This unfortunate incident apart, early recorded instances of supervision and control very largely involved ecclesiastics, which is doubtless mainly a reflection of their constant recourse to – and the crown’s consequent suspicion of – the papal curia in Rome.  When Archbishop Anselm set out for Rome in November 1097, he was treated `like a fugitive and a common criminal’, not being allowed to embark until all his luggage had been opened and searched on the beach, probably for potentially incriminating documents.2  Fifty years later, when another archbishop, Theobald, wanted to go to a council summoned by the pope to Rheims, he had to cross the Channel in a small boat, because King Stephen not only forbade him to go, but also had the ports watched by his officials.3  Angevin kings appear to have been particularly suspicious of anything that might allow papal jurisdiction to ramify at the expense of their own.  During his protracted lawsuit (1158-63) for the Sackville inheritance, Richard of Anstey thought it necessary, or prudent, to obtain permission from Henry II in person before appealing to the pope,4 and it was with the king’s consent, that English bishops attended a council held by that pope at Tours in 1163 - Alexander III thought it expedient to thank the king afterwards, and to promise not to treat this as a precedent.5  It was in line with this outlook that the fourth of the following year’s Constitutions of Clarendon laid down that `It is not lawful for archbishops, bishops and beneficed clergy of the realm to depart from the kingdom without the lord king’s leave’, and that those who did go abroad should, if the king so wished, give security that they would do nothing contrary to royal interests.6  Following his quarrel with Henry II to which the Constitutions gave rise, Thomas Becket himself fled the country in November 1164, despite the king’s order that the shores everywhere should be watched.7

Archbishops and bishops, who usually travelled with retinues, were doubtless relatively easy to detect.  Individuals, whether ecclesiastics or laypeople, must have had a better chance of making an unobserved crossing, though the possibility of severe punishment for abetting, or at least failing to prevent, such movements must have done much to encourage alertness in the ports.  According to Edward Grim, when Becket made an earlier attempt to flee abroad in 1164, the ship carrying the archbishop turned back into port after the sailors agreed that they were foolish to risk their own and their families’ ruin by ferrying the king’s enemy out of the realm.8 Becket’s six-year exile, accompanied as it was by a continuous papal involvement in efforts to resolve his dispute with the king, seems to have stimulated further efforts at control, to the extent that late in 1169, facing the prospect of ecclesiastical censure, Henry effectively put the whole of England out of bounds to the pope’s intervention, in ordinances which included a ban on men in orders entering or leaving the kingdom without a passport.9  When Becket returned from exile in December 1170, the sacrist of Canterbury, who had travelled separately, was refused entry to the kingdom because he had come without the necessary letters,10 and William Fitz Stephen, the archbishop’s biographer, thought it outrageous that Thomas should have been cross-questioned at his landing about the bona fides of his retinue, in case any of its members was a foreigner – `Such demands, whether for letters or an oath [of fealty], should be and are accustomed to be demanded of those who have probably come to spy out the weaknesses of the kingdom.  It is unheard of for such demands to be made of the archbishop of Canterbury ...’.11

Becket’s murder, on 29 December 1170, led to the abandonment of the Constitutions of Clarendon, but the armoury of control which Henry II had assembled was not therefore dismantled, and in particular he and his successors continued to try to regulate, and where necessary forbid, access to, and approaches from, the papal curia.  In 1178, for instance, papal legates, coming to summon prelates from Britain and Ireland to the Lateran Council convoked for the following year, needed Henry’s permission to fulfil their mission, and the legate who travelled to Scotland and Ireland was obliged to swear that he would do nothing harmful to the kingdom of England.12 Early in the next reign Richard I refused to let his half-brother Geoffrey, archbishop-elect of York, send agents to Rome to collect his pallium, and allowed severe restrictions to be placed on the activities of the papal legate, Giovanni di Anagni.13  It is not surprising that under John, the years of an interdict upon the realm (1208-1214) and of the king’s excommunication (1209-1213) should have seen a drastic fall in the number of appeals to Rome and of appointments of papal judges-delegate,14 but even before then such contacts were liable to curtailment at the king’s pleasure.  Writing to John in February 1203, Innocent III complained that the king, furious at not getting all his petitions accepted, `publicly prohibited any citizen of your realm from attempting to receive a legate or nuncio of the Apostolic See anywhere in your kingdom and especially in England ...’, and that John was doing his utmost to prevent judges-delegate from trying cases, even though, according to Innocent, `we have always been careful to safeguard your jurisdiction ...’.  As far as the ban on legations was concerned, the pope conceded that John had subsequently withdrawn his decree, as `thoughtlessly issued’, but proceeded to administer a stiff rebuke, in words which show clearly how he regarded royal policy as essentially arising from the king’s own erratic personality - `it is unheard of for any prince to act in such a manner, a king of your understanding ...’.15

The king’s lay subjects were probably liable to similar restrictions, and on very similar grounds, but the evidence is very meagre.  In 1180 Randulf Fitz Walter, a Yorkshire landowner, was required to pay £100 `because he left the king’s land without licence and that he may be quit of an amercement for a man whom he pledged’; but it is impossible to say which part of his double offence did most to incur this substantial penalty, which it took Randulf five years to pay, and the pipe roll entry gives no hint as to where Randulf went to incur the king’s displeasure.16  William de Longchamp, bishop of Ely, was an ecclesiastic, but it was for his conduct of secular affairs as justiciar, the effective head of the government in Richard I’s absence, that he was disgraced in 1191.  He fled to Dover, but his efforts to leave the kingdom were thwarted by an order from the king’s justices to the burgesses of the town, who were clearly expected to keep watch over their own port, that he was not to be allowed to cross the Channel, while it was with the permission of Count John that he finally left.17

According to Howden’s account of Longchamp’s departure, John dedit illi licentiam transfretandi, which could mean that a written document was involved. Safe conducts for merchants occur regularly among the records of John’s reign, but there are very few references to other lay-people needing royal consent to their movements.  The letters of protection granted in January 1201 to Warin Fitz Gerald, a chamberlain of the exchequer who was named as one of the king’s faithful counsellors when John granted Magna Carta (he deserted the king a year later), may have had something of the character of a passport – Warin was about to go on pilgrimage – but could have been only an extension of the protection granted to crusaders.18  The king’s power to requisition shipping for his own purposes, as he did, for instance, in Wales and the Cinq Ports in the late winter and early spring of 1208,19 or to keep ships in port, as in March 1213, when the bailiffs of Portsmouth were instructed to allow no vessels to leave without a special order,20 was doubtless capable of being used with regard to individuals other than merchants, even though no clear instances have been noticed of its being so.

Although it is possible that the pressure for Clause 42 came primarily from the circle of Archbishop Langton, its potential application was too wide for it to be convincingly presented as purely, or even mainly, benefiting the church.21  It seems more likely that, as with several other clauses, it was primarily intended to bring regularity and precision into situations where routines had yet to be established.  How uncontrolled the existing state of affairs could be is shown by a lawsuit of 1210, in which two citizens of Cologne complained that they had been arrested and imprisoned in London, and claimed that their letters of protection, which were ignored by the sheriffs, had been issued not by the English king but by John’s nephew and ally Otto, the German emperor, as if any such letters had equal validity in England.22  There is certainly no recorded evidence that the men had been authorised to come to England by anyone acting in King John’s name.  The additional constraints added to the original Article may point to the same conclusion, though they may also have been in some way related to the presence among the king’s opponents in 1215 of two leading barons who had been outlawed and were also closely associated with John’s enemies, with William the Lion, king of Scots, in the case of Eustace de Vesci, and with Philip II, king of France, in that of Robert Fitz Walter.  Possibly the addition was partly intended to underline the now-lawful status of these men, and of others like them.  But whatever their purpose, perhaps as a result of the civil war of 1215-17, which saw invasions of England from both Scotland and France, it must have been thought unwise for the government to lose the opportunities for supervision afforded by control of an island’s coasts, and correspondingly desirable that the king should retain a general power to control the movements of men into and out of England.  Consequently the whole Clause was dropped from later reissues.

1

D. Whitelock, D.C. Douglas, S.I. Tucker (eds.), The Anglo-Saxon Chronicle (1961), 35 and note 3.

2

R.W. Southern (ed. and trans.), The Life of St Anselm, archbishop of Canterbury, by Eadmer (1962), 98.

3

W. Stubbs (ed.), The historical works of Gervase of Canterbury i (Rolls Series, 1879), 134.

4

R.C. van Caenegem (ed. and trans.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), ii, 400.

5

W.L. Warren, Henry II (1973), 452.

6

W. Stubbs (ed.), Select charters ... from the earliest times to the reign of Edward I (9th. edn., rev. H.W.C. Davis, Oxford, 1921), 165.

7

J.C. Robertson (ed.), Materials for the history of Thomas Becket iv (Rolls Series, 1879), 55.

8

Robertson, Becket materials ii (Rolls Series, 1876), 389-90.

9

F. Barlow, Thomas Becket (1986), 191.

10

Robertson, Becket materials i (Rolls Series, 1875), 88.

11

Robertson, Becket materials iii (Rolls Series, 1877), 118-19.

12

W. Stubbs (ed.), Gesta Regis Henrici Secundi Benedicti Abbatis i (Rolls series, 1867), 209-10.

13

C.R. Cheney, From Becket to Langton: English church government, 1170-1213 (Manchester, 1956), 92-3.

14

J.E. Sayers, Papal judges delegate in the province of Canterbury, 1198-1254 (Oxford, 1971), 269-70.

15

C.R. Cheney and W.H. Semple (ed. and trans.), Selected letters of Pope Innocent III concerning England (1198-1216) (1953), 49-50.

16

PR 26 Henry II, 73.

17

Gesta Regis Henrici Secundi Benedicti Abbatis ii, 220; Gervase of Canterbury i, 510.

18

T.D. Hardy (ed.), Rotuli Chartarum 1199-1216 (Record Commission, 1837), 100.

19

T.D. Hardy (ed.), Rotuli litterarum patentium 1201-1226 (Record Commission, 1835), 79-80.

20

T.D. Hardy (ed.), Rotuli litterarum clausarum 1204-1224 (Record Commission, 1833), 133.

21

As suggested by W.S. McKechnie, Magna Carta: a commentary on the great charter of King John (2nd. edn., Glasgow, 1914), 408.

22

Curia Regis Rolls vi, 54.


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Original Latin

XLIII

Si quis tenuerit de aliqua escaeta, sicut de honore Walingeford, Notingeham, Bononiae, Lainkastriae, vel de aliis eskaetis, quae sunt in manu nostra, et sunt baroniae, et obierit, haeres non det aliud relevium, nec faciat nobis aliud servitium quam faceret baroni si baronia illa esset in manu baronis; et nos eodem modo eam tenebimus quo baro eam tenuit.

43

If anyone dies who held of any escheat, like the honour(s) of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats which are in our hand and are baronies, his heir is not to give any other relief, or to do us any other service, than he would have done to the baron if the barony was in the baron’s hand; and we will hold it in the same manner that the baron held it.

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Commentary for academic researchers

Defining the issue: the status of escheats

The aim of Clause 43 was to prevent the king from taking advantage of the circumstances which brought important lordships – the terms `honour’ and `barony’ were used1 – into his hands, either permanently or temporarily, by changing the position of their tenants, so that they were treated as tenants-in-chief, holding their lands directly from the crown, rather than as the sub-tenants they had previously been. Such a change could have wide-ranging effects, but was potentially especially harmful where reliefs, the sums paid for the right to succeed to a property, were concerned, a fact given prominence in the wording of the Clause. There is no obvious reason for the position in the relevant documents of either Clause 43 or the corresponding Article 36 among the Articles of the Barons, in both it is simply one clause among others, with essentially the same content (though in 1217 a sentence dealing with wardships and escheats was added to it), and with the same remedy for the abuse complained of – the terms on which lands were held were to remain unchanged if an honour escheated to the king, who was therefore to do no more than step into the shoes of its previous lord, and in wearing them, to stand in the same relationship to the tenants as the baron had done before his death.

The number of potential beneficiaries of Clause 43 was considerable. Barons who were themselves the tenants of other barons, important mesne tenants who might likewise hold their estates from several lords, and lesser knights and landowners who had hitherto had but one lord, all risked finding themselves suddenly exposed to unprecedented demands from the king whose tenants-in-chief they had become. The danger was all the greater if the honour concerned was a substantial one with lands in many counties. Clause 43 named four major honours as providing examples of the abuse it aimed to remedy. Three of them – Wallingford, Nottingham and Lancaster – had come under royal control in the 1150s and 1160s, Wallingford and Lancaster by escheat, that is, through the failure of heirs, the lands of William Peverel of Nottingham through confiscation resulting from forfeiture for treason, and had remained in the king’s hands thereafter, except for a few years after 1189, when all three formed part of the appanage created by Richard I for his brother, the future King John.2 The lands constituting the honours of Lancaster and Nottingham, in particular, extended far and wide. (The honour of Boulogne was unlike the others, in that by 1215 it constituted a very different lordship from the one recorded under the Norman kings, but was an artificial creation, made up of four valuable but widely-separated manors, which passed in and out of the king’s hands according to his own diplomatic policy and the political stance of whoever was count of Boulogne. In 1212 John granted it to his ally Renaud de Dammartin, who was captured at Bouvines two years later and remained a French prisoner thereafter; its inclusion in Clause 43 may indicate that the claims of Renaud’s wife, Countess Ida, had been ignored and that John was now repossessed of it.)3

There were always more escheated baronies in the king’s hand than the four named in Clause 43. Some of them were long-term escheats, like Eye and Tickhill, others merely temporary ones, held by the crown for a few years before being granted out again. (The nature of John’s rule was such, however, that it can never have been certain that such lordships would be re-granted, rather than remaining indefinitely under direct royal control; Clause 43 must also have reflected the anxieties created for its tenants when a lordship passed, or simply looked like passing, into the king’s hands). Monasteries and bishoprics following the deaths of abbots and bishops, though not mentioned by name in the Clause, can plausibly be included in this second category; in the nature of things they could not descend hereditarily, but they could nonetheless remain vacant for several years while the king enjoyed their revenues. Richard FitzNigel gave a vacant bishopric as an example of a barony falling into the king’s hands, in a discussion of reliefs which set out the differences between those which could be demanded from tenants-in-chief and those payable by men `holding a knight’s fee from the king, not part of the crown lands, but rather part of some barony that has fallen into the king’s hands for some reason ...’.4 For a tenant-in-chief his relief was a matter for the king’s pleasure, and might be settled only after negotiations in which the king had an overwhelming advantage. But the tenant of an escheated barony should only pay at what was already the conventional rate of £5 per fee, `according to the number of knights he owed his lord before the inheritance reverted to the treasury.’

 

Practice under Henry II and Richard I

The situation described by FitzNigel both foreshadowed the one demanded by Clause 43 and reflected the conditions prevailing under Henry II. Whatever his nominal rights may have been, Henry did not usually place additional burdens by demanding inflated reliefs from the tenants of escheats.5 Even when a higher rate was imposed, as when Godfrey de Cauz, a Sussex landowner, was obliged to proffer a relief of twenty-five marks (£16. 13s. 4d.) in 1180 for the three fees he held of the earl of Arundel,6 the excess was not great, and a rate of £5 per fee remained usual. Thus in 1176, for instance, Ralph son of William FitzRobert, a tenant of the honour of Nottingham, paid £25 as the relief for his five fees.7 In 1181, when Glastonbury Abbey was in the king’s hand after the death of Abbot Robert, Geoffrey Foliot paid £5 `for the relief of one knight’s fee which he holds of the abbey’.8 A year later, following the death of Earl Hugh of Chester, William FitzRichard gave £10 as his relief for two knight’s fees.9

Henry’s restraint in these and other instances is all the more striking because he and his advisers clearly made serious efforts to capitalise on the revenues provided by long-term escheats, and the windfalls represented by new ones, especially in the last years of the reign. Until the mid-1180s each escheat was accounted for separately, usually under the county in which its principal estates lay, but in 1185 the smaller ones began to be grouped together on the pipe rolls,10 presumably to make it easier for the exchequer to monitor their issues, while in 1187 a `roll of honours’, written on both sides of a full rotulet, covered Wallingford, Lancaster and Tickhill as well.11 The honour of Peverel, which from the time of its forfeiture was more often than not administered by the sheriff of Nottinghamshire and Derbyshire, was excluded from this arrangement, however, as were the lands of such bishoprics as were then in the king’s hands.  Some were used to provide the king with supplies of cash, bypassing the exchequer. Thus in 1168 Ralph Brito did not render account for the lands either of Henry of Essex, forfeited in 1163, or of Count Eustace (King Stephen’s eldest son, who died in 1152, and who as count of Boulogne had held the original honour of that name), nor did he answer for the contribution of their knights to the aid to the marriage of the king’s daughter; instead he answered directly to the king for the money, of which he was cleared by a royal writ.12 Not until 1182 did the issues of these lands become the responsibility of the exchequer. Wilton Abbey was treated similarly. In 1180 order was given that its keeper should not be required to answer for any of its issues, as he had paid them all into the king’s chamber.13

All this was not necessarily rank exploitation on the king’s part, for on the evidence of the pipe rolls, the yields from escheats often reflected earlier investments in them. That the issues of the honour of Arundel amounted to £381. 18s. 5d. in 1181, for instance, may well have owed much to the restocking of the manors carried out by royal agents in the previous year.14 Even so, by that time there was one respect in which the demands made on escheats differed from those on other lordships. The inquests which produced the Cartae Baronum of 1166 had distinguished – as they were required to do – between the fees held of tenants-in-chief before 1135 and those created after that year. When Henry II imposed scutages and aids on tenants-in-chief from 1168 onwards, he attempted to exact payment from all the fees each held, regardless of when they had come into being. His demands were to outward appearances perfectly reasonable – the barons themselves would surely have expected to be able to levy scutages from all their tenants – but they were successfully resisted, by lay and ecclesiastical barons alike, for on the evidence of the pipe rolls only the `old’ enfeoffments became liable to pay, except when an honour had escheated to the king. As early as 1173 the lands of the see of Chichester were paying scutage for Henry II’s Irish expedition both for the fees from which the late Bishop Hilary had acknowledged that payment was due and for those which he had not so acknowledged, `because the bishopric is in the king’s hand’, and the `old’ and `new’ enfeoffments on the lands of Earl Walter Giffard, who had died without an heir in 1164, were treated similarly.15 In 1187, a year after Henry II’s expedition to south-west Scotland, the keeper of the lands of the Northumbrian baron William de Vescy likewise accounted for scutage from both old and new fees, `because the honour is in the king’s hand’.16 When in 1194 the earl of Devon contributed to Richard I’s ransom by paying scutage alike for the fees `which he acknowledges’ and the ones which he did not, he did so explicitly as a favour – ex dono suo.17

The terms in which the earl’s payment was recorded shows that Richard I had continued to treat escheats much as his father had done. They continued to be grouped together on the first two pipe rolls of his reign,18 and though this practice was abandoned in 1191, it was revived in 1194, when a `roll of wards and escheats’ formed part of the pipe roll (as it did for the rest of Richard’s reign) – an innovation to be associated with Hubert Walter’s measures of that year, which included an order for the investigation of wardships and escheats by royal justices, prior to their being brought under the control of exchequer officials.19 Like many of Hubert’s measures, this was intended to maximise revenues in order to finance the king’s wars in Normandy. In 1194 the escheats affected included Lancaster, Nottingham and Wallingford, all forfeited by Count John because of his rebellion. But if they gave him any significant support, they rarely seem to have been punished collectively for it. In 1194 the knights of the honour of Lancaster paid the scutage levied to raise King Richard’s ransom at the usual 20s. rate,20 and in 1196 the honour of Wallingford, which answered for almost exactly 100 fees, accounted for £100. 5s. towards a scutage which was likewise assessed at 20s. per fee.21 Only the honour of Eye, whose knights in the latter year promised a fine of 26s. 8d. per fee `that they may not cross the sea in the third army of Normandy, and for having their scutages ...’,22 may have received a slap on the wrist in the form of a higher rate. Having been in the king’s hands since 1159, Eye had also formed part of Count John’s appanage, and was restored to him in 1195.

 

Misleading stability: John’s early reign

King John, like King Richard, appears to have usually followed in the footsteps of his father where escheats were concerned, at least at the beginning of his reign. Reliefs could be higher than had become customary – in 1201 Ralph d’Anvers proffered £20 `for having his land which is in the honour of Wallingford’, where he held two fees23 – but more often they were levied at the same rates as elsewhere, as were scutages, with the smaller fees of Mortain paying less than others as they had done before. The fines which tenants-in-chief paid to avoid service overseas could be much higher – in 1202, for instance, when scutage was charged at a rate of two marks per fee, the payments made by the knights of Wallingford (and in the present context it is significant that they were being treated as tenants-in-chief) included thirty marks for three fees from Robert de Mara, twenty-five marks from six fees from Thurstan Basset, and ten marks for two fees from Robert Foliot,24 while the Lancaster fines included one of ten marks for just a quarter of a fee from Robert of Stockport25 – but such fines were often high, whoever was obliged to make them. Although there are signs that landowners were aware that defining their positions as tenants was potentially important, and that it could matter to them whether they held their land directly of the king or of an escheat which was in the king’s hand, in the years immediately after John’s accession they appear to have expected him to observe the conventional distinctions between the two forms of tenure.

This is suggested above all by a lawsuit between two Lincolnshire landowners recorded in 1201. Probably early in that year, Simon of Kyme and Robert the chamberlain jointly proffered sixty marks (£40) and a palfrey, with Simon undertaking to pay twenty marks and Robert the rest, `for having the grand assize concerning three quarters of a knight’s fee in Marston, as to whether Robert, who is the tenant, has the greater right to hold that fee in demesne of the king in chief, or Simon [to hold it] in demesne of the honour of Gloucester’.26 Whoever won the action would be a tenant of the king’s, for the honour of Gloucester had come into King John’s hands through his marriage in 1189 to Isabella, its acknowledged heir, and had remained in them after their marriage was annulled ten years later, but the terms on which the disputed property was held, and the services rendered for it, would be different. To settle this, Robert and Simon were prepared to pay a sizeable fine, and the evidence which they produced in support of their claims was no less substantial. When the case came into the bench in Michaelmas term 1201, Robert displayed charters of Henry I, of the Empress Matilda, and of Henry II, the last’s having been made both before and after he became king, together with writs issued by all three, and he also appealed to the authority of Domesday Book, while Simon proffered a charter of Earl William of Gloucester (d. 1183) and its confirmation by Henry II. In accordance with normal practice, the justices remanded the lawsuit, with its battery of conflicting claims, for the king’s decision.27 John’s judgment is lost, but its gist is clear enough, for in 1212 Robert was recorded as holding six carucates of land in Marston in chief of the king by the service of one knight,28 and eventually paid his share of the original fine (he joined the rebels at the end of the reign, and did not start to pay his fine until 1219, completing payment only in 1224), while Simon was pardoned his contribution.29 It is probably unsurprising that John found in favour of the would-be tenant-in-chief, but it seems equally noteworthy that at this point in the reign Simon sought the presumed advantages of holding land from a de facto escheat.

 

Growing pressure

Simon of Kyme’s apparent optimism may have been misjudged, even at the time. This is suggested by the king’s treatment of Lancaster, which acute observers could have seen as a portent. Its exact status appears to have been unclear – although it was commonly recorded on the pipe rolls as an honour, it was several times also referred to as a county, and the royal officer in charge of it was always the sheriff. John’s tour of the north of England in 1200, bringing him as it did numerous and lucrative payments for charters of confirmation, may well have suggested to him that Lancaster held financial possibilities which neither he nor his predecessors had fully exploited. In the same year additional payments – de cremento – were levied on five townships,30 a number which by 1202 had risen to around twenty.31 In 1201 the county farm, which had been fixed at £200 since 1166, was increased by 100 marks (£66. 13s. 4d.), and some of the previous year’s fines had surcharges tacked onto them – Robert Bussel, for instance, had to find another twenty marks `as increment to the fine of 100 marks which he had made previously, and that an inquest may be held according to the first fine.’32 Fines and scutages for military service could be large – in 1201 Gilbert FitzReinfred was charged with £20 for three fees – and were both exactly calculated and widely imposed, on freeholders (serjeants and thanes) who did not hold by knight service, as well as on all those who did. In 1202 scutage was recorded as paid by 74¾ fees, together with a sixth and three and a half tenths.33 Such fractions were attended to. A year later Adam of Middleton paid 6s. 8d. for one fourteenth of a fee, Robert le Vavasur ten marks (£6. 13s. 4d.) for a half and a sixth of a fee.34 An order issued on 21 October 1205 for a wide-ranging inquest into alienations of lands and services from the honour of Lancaster since 1154, one which was to extend into every county in which its estates lay, will have warned its tenants that no letting-up of financial pressure could be expected in the future.35

Such an order raises the possibility that King John was planning a campaign of investigation into his rights concerning escheats at this time. Be that as it may, there were already developing signs elsewhere of the determination of the king and his agents to extract all that could be regarded as due to them from this source. In 1201 the knights of the honour of Berkhampstead had to pay a 6½ mark (£4. 6s. 8d.) supplement on top of the £40 they had already given towards that year’s scutage. The defiant note struck by the record that `They hold the fees of twenty-two and a third knights and no more, as they say’36 suggests that the tenants felt ill-used and had protested, even though Berkhampstead’s fees were the smaller ones of Mortain, and paid at a lower rate (in 1204 they paid scutage at the rate of 20s. 5d. instead of the 33s. 4d. demanded for fees of conventional size).37 The records of the scutage of 1205 show the king’s officers answering in considerable detail for the issues of escheated honours, and attending to every fraction of a fee, as they were already doing in Lancaster. Gilbert of Stanford, for example, accounted for scutage from the honours of Henry of Essex (46 and a sixth fees) and Hagnet (53½ and an eighth and a quarter), and for the knights of the count of Perche at Newbury, Chelsfield, Aldburn and Wanborough (10½), and ended up paying £147. 8s. 7d. into the king’s chamber from a total of 110 knights’ fees, along with a quarter, an eighth and a sixth.38

Gilbert’s account was entered on the pipe roll under Essex and Hertfordshire, but he was not the sheriff of those counties. Practice varied in this respect. As far as accounting to the exchequer was concerned, the honour of Wallingford effectively ceased to exist as an fiscal entity after 1201, it being noted on the following year’s pipe roll that all the lands of the honour had been given away,39 so that thereafter it rarely answered except as an agglomeration of fees when scutages were levied. The accountant on these occasions was usually the sheriff of Berkshire, but occasionally a keeper acted in his place. The knights and free tenants of the honour of Peverel clearly resented the loss of identity entailed in coming under a sheriff’s control, for in 1203 they proffered forty marks (£26. 13s. 4d.) `that the sheriff in whose bailiwicks that honour was should in no way concern himself with it ...’.40 The money was paid, but the sheriff continued to account until 1208, when the honour was placed in the hands first of Robert de Vieuxpont and then of Brian de Lisle – hardly the sort of administrators the tenants can have hoped for when they made their bid to exclude the sheriff. The men of Lancashire (under that name) made a similar bid for independence, though in a different form, when in 1206 they proffered 100 marks to have Richard de Vernun as their sheriff.41 After four years in office Vernon had recently been replaced by Gilbert FitzReinfred, and the change was clearly little to the county’s liking (Vernun’s removal is doubtless to be associated with his fine of the previous year of forty marks and a palfrey `for contempt of the king’s orders directed to him’42 – perhaps he had ignored instructions for the more methodical exploitation of his charge). John accepted the money but did not restore Vernun to office, for Gilbert remained sheriff until at least 1215. Probably John valued his financial efficiency, for after 1205 the issues of the honour of Lancaster were more directly exploited, with the sheriff now acting as a custodian rather than as a farmer and answering for all the revenues.43 The 100-mark increment disappeared, but since the profits for which the sheriff now answered usually exceeded it – they amounted to £73 in 1206, for instance, and £79. 5s. in 121144 – the tenants were no better off.

 

Tightening the screw

John continued to exploit the opportunities which escheats provided when the opportunity presented itself – in 1208, for instance, he was able to extract forty marks from Luke Sorel as his relief for a single knight’s fee held from the honour of Leicester45 – but in the application of pressure in a more methodical way the decisive year was probably 1209, when the excommunication of the king, and the subsequent retreat into exile of nearly all the English bishops, put the latter’s estates at the former’s disposal. The opportunity was exploited to the full, and probably encouraged John to exploit lay escheats with the same thoroughness. The financial year 1208/9 produced inquests into tenures in the counties of Northamptonshire and of Bedfordshire and Buckinghamshire which specifically investigated escheats, while around the same time there were also surveys of the knights’fees and sergeanties of the honour of Tickhill, and of the bishoprics of Durham, Worcester, Lincoln and Exeter, along with Hyde Abbey, Winchester (which was not in fact in the king’s hand at the time).46 It is probably not coincidence that it was in 1209 that the knights and free tenants of the honour of Bramber, Sussex, which was now in the king’s hand following John’s falling-out with its lord, William de Briouze, paid £100 and a good palfrey `for having their liberties which they had in the time of their lords according to their ancient custom ...’,47 and that the knights of the honour of Hervey Bagot, the lord in Staffordshire of fifty fees of Mortain, proffered twenty marks `so that they can now and in future pay their scutages as they should and have been accustomed to do ...’.48 The activities and inquiries of the king’s agents must have made such precautions against new and higher exactions seem very necessary, though they do not always appear to have been successful. In 1210 Hugh de Cumbes, a tenant of the honour of Bramber, had to pay a relief of £40 for four fees in Applesham and Hawkesborne, double the accustomed amount.49

Some of the other reliefs recorded at this time were similarly disproportionate, and were not only exacted from important landowners. Again in 1210, for instance, the heir of Matthew of Marton in Lancashire (he was probably named Adam) gave twenty marks to succeed to just three carucates there,50 and John of Mansbridge paid £5 as his relief for a mill in that Hampshire village, which he had formerly held of Hugh de Culunces but was now in the king’s hands after Hugh’s forfeiture as a Norman.51 The scutages imposed on escheats continued to be charged on old and new fiefs alike – in 1211 both the honour of Gloucester and the diocese of Exeter were treated in this way.52 But the evidence for the actual numbers of fees which had either to perform military service or to pay in commutation is not always clear. Although there was no formal enactment or pronouncement on the subject, by the end of the twelfth century the overall trend was undoubtedly towards a lowering of quotas, and may well have long been so. A magnate like Roger Bigod, earl of Norfolk, whose relations with King John were uneasy, might have to pay for a remission – in 1211 he agreed to give 2000 marks (£1333. 6s. 8d.) for concessions which included the reduction by half of the service of 120 knights which he had previously owed53 – but in other cases the downward adjustment was made silently, and can only be deduced from its results. Thus when John mustered the host in Kent in 1213, recorded payments to tenants-in-chief and their followers show that Gilbert de Gant, the lord of nearly seventy fees, had attended with just nine knights, as did Robert Mortimer, a Herefordshire baron who owed the service of twenty-three, while the earl of Devon, who held over ninety fees, sent only twenty knights.54 The earl of Clare came with four knights to represent his fees in Kent, and also provided a contingent from Essex. The latter’s number is unrecorded, but can in any case have represented only a fraction of the total number of knights, between 130 and 140, which Earl Gilbert was nominally required to provide.55

The king’s demands on such ecclesiastical and lay escheats as the archbishopric of Canterbury and the lands of the earldom of Leicester look relatively substantial as recorded, furnishing long lists of names, but in fact they, too, were considerably lower than they might have been.56 The two halves of the honour of Leicester contained just over 200 fees, but sent only twenty knights to the 1214 muster,57 and although the archbishopric provided more – thirty-nine in all – this still represented a substantial reduction in the service which was potentially owing – sixty knights were due, while successive archbishops had created fees for at least twenty-five more, all of whom could have been summoned by the king when the see was vacant.58 On the other hand, the king’s exploitation of the resources of Ramsey Abbey, which was vacant between 1206 and 1214, included the raising of fines from knights and free men towards his 1210 Irish expedition which totalled £172. 6s. 4d.,59 although the abbey owned the service of only four knights, and had enfeoffed between thirteen and nineteen. That year’s scutage was levied at the rate of two marks per fee, so John was by any criterion taking far more than his entitlement from the abbey’s men. He weighed no less heavily on the honour of Lancaster, where in 1209, at least, he exacted all the service due to him, that of nearly eighty knights – the sheriff made no return concerning scutage for that year’s Scottish campaign, `because all the knights were in the army’.60 Although no numbers are given, it seems likely that many of the Lancaster knights were called out again in 1213, since Gilbert FitzReinfred received 100 marks for their payment, as much as was given to William Marshal for his force.61

By this time the number of escheats, and their ecclesiastical equivalents, which were in the king’s hands was considerable. The 1211 pipe roll (the last of the reign to be anything like complete) records the king as receiving the issues of the honours of Gloucester, Marlborough, Knaresborough, Peverel, Boulogne, Lancaster, Leicester (in two parts), Wallingford and Tickhill, and the lands of William de Beauchamp and the countess of Perche, along with those of the sees of Durham, Canterbury, Salisbury and Exeter, the abbeys of St Benet of Holme, Abbotsbury, Kenilworth (and its daughter-house of Stone), Ramsey, Peterborough and Battle, and Canterbury Cathedral priory. All the signs are that whereas under Henry II escheats had been regarded as benefits to be enjoyed, by this stage in John’s reign they were coming to be treated as assets to be stripped. As John’s financial needs grew in proportion to his military and diplomatic purposes, the amounts spent on restocking and maintaining escheats declined, while larger sums were paid either into the exchequer or to the king in his chamber – for John, as for his father, escheats could be a valuable source of ready cash. In 1209 the lands of only part of the earldom of Leicester yielded payments totalling £822. 0s. 8d. directly to the king, on the authority of no fewer than eleven royal writs, and those of Roger de Tony’s barony of Flamstead £269. 5s.,62 while in the following year the estates of the countess of Perche brought nearly £900 into the chamber.63 In 1210 the revenues from Kenilworth Priory amounted to nearly £400, of which the exchequer had just under £250 and the king £140. 12s., while of the farm of the honour of Tickhill, set at £85, all but £3 was paid to the exchequer.64 A year later the issues of the barony of William de Beauchamp, amounting to just over £900 over two years, went entirely into the exchequer and chamber (almost exactly two thirds of them into the latter).65

 

Uninhibited exploitation

Two years later the flight and forfeiture of the recent conspirators against his life gave John the opportunity to demonstrate in spectacular fashion just what his control of escheated honours might lead to. The Dunstable annalist recorded how, almost certainly in early 1213, `the king sent 100 knights with esquires to Poitou from the fee[s] of Eustace [de Vescy] and Robert FitzWalter and of the bishops then in exile ...’, and for good measure took a scutage from those of their knights who remained at home, at the eye-watering rate of ten marks (£6. 13s. 4d.) per fee,66 more than three times the rate exacted across the whole country in 1214, which at three marks (£2) per fee was itself unprecedented. In 1215 FitzWalter and Vescy between them were reckoned to be able to bring eighty knights to the baronial muster,67 and this was probably a significant underestimate, since FitzWalter held two baronies which were recorded as owing the service of almost exactly 100 knights, while Vescy’s lordships consisted of some thirty-six fees.68 If the estates of the two secular barons are regarded as having provided the knights, and the bishoprics the scutage, then allowances have to be made for the fact that six sees were vacant and two did not owe knight service to the king, while Norwich and Winchester were in the hands of men loyal to King John. But the baronies of the archbishop of Canterbury and his five diocesans who are known to have left England rather than serve an excommunicate king (the position of Herbert Poor of Salisbury is unclear) altogether owed the service of 215 `old’ fees and 103¾ `new’ ones,69 and since both kinds of fee would have been required to pay scutage while the relevant dioceses were in the king’s hand, the levy’s yield from them, at ten marks per fee, could have amounted to £2465. 16s. 8d. (£2705. 16s. 8d. if an additional thirty-six baronial fees are included) – a very welcome addition to John’s war-chest at that critical time.

The disappearance of the 1213 pipe roll means that these calculations must remain speculative. But it seems undubitable that King John did turn the screw on the escheats, lay and ecclesiastical, old and new, whenever the opportunity arose, and that he amplified those opportunities by ignoring the differences between escheats. The abuse which Clause 43 was intended to remedy had potentially widespread repercussions, ones which John’s actions after 1212 show could impact upon men in the highest reaches of society., and do so, moreover, to lasting effect, for an attempt on the king’s life constituted treason, and thus, as Glanvill noted, entailed the perpetual disinheritance of the convicted traitor’s heirs.70 The fact that FitzWalter and Vescy had committed treason had potentially severe effects for their tenants, in that it should have made the lands of their former lords permanently the possession of the crown, in circumstances in which it would have been difficult for the tenants to argue that they should be treated by the king as they had been by the lords who had recently plotted to kill him.

As resistance mounted in the latter years of John’s reign, the king’s adversaries faced the possibility that escheat by forfeiture would come to supplement escheat by failure of heirs, or (in the case of Normans who sided with the French king) by change of allegiance, with the first being enforced and exploited with even greater severity than the other two. The return of the conspirators from exile in 1213 may have averted this danger, or at any rate diminished it, but the underlying abuse persisted, and aroused resentment. The tenurial connections of the king’s enemies are often hard to pin down, but at least a dozen of the knights of the honour of Wallingford, with grievances which included some excessive reliefs and large demands for scutage and military service (in 1210 around twenty of them accompanied the king to Ireland), joined the rebellion against King John,71 which also found several identifiable supporters among the tenants of the honour of Tickhill.72 Three of the latter (John de Lacy, Eustace de Vescy and Roger de Montbegon) were among the twenty-five barons charged with enforcing Magna Carta, and up to twelve more of their fellow tenants followed them into revolt.

In January 1214 William the archer of Sibbertoft had given ten marks for an inquest as to `whether the serjeanty of Sibbertoft which he holds should pertain to the honour of Berkhampstead or [whether] he should hold the same serjeanty in chief of the lord king ...’. The sheriff of Northamptonshire was therefore ordered to investigate, with instructions that if William was found to hold in chief, then he should be left in peace, while if he held it of the honour, then he should be permitted to hold it `as of that honour ...’ (sicut de honore illo).73 Having passed to the crown by forfeiture early in the twelfth century, in 1214 Berkhampstead was nominally part of Queen Isabella’s dower, but was effectively under the king’s control, administered by a royal keeper.74 In paying for an inquest, William showed his awareness of the relationship between tenancy and lordship, and of the advantages for himself which might follow from the terms in which the latter was defined. In the event, like Robert the chamberlain earlier in the reign, William was found to be a tenant-in-chief, holding his serjeanty (a military one) directly from the king.75 No doubt he was disappointed, having hoped to hold his lands on terms which left him less exposed to royal demands. Nevertheless his case is significant in showing that men understood that there were significant differences between holding estates directly from the crown and holding them from a barony which circumstances had brought under the crown’s immediate lordship, and that they expected those differences to be maintained. King John’s acceptance of William’s proffer shows that when offered a material inducement he, too, might be prepared to observe the distinction. Clause 43 demanded that he should always do so.

1

In contemporary usage honours and baronies were regarded as well-nigh identical.  The use of the term `honour’ in Clause 43 probably reflects only the way in which the four lordships named had come to be referred to, for instance in the pipe rolls, rather than any substantive difference.

2

W. Stubbs (ed.), Gesta Henrici secundi Benedicti abbatis, 2 vols. (Rolls Series, 1867), ii, 78. 

3

Details from J.H. Round, Studies in peerage and family history (1901), 147-80.

4

E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 144-5.

5

W.S. McKechnie, Magna Carta (2nd edn., Glasgow, 1914), 411-14.  McKechnie applied to the period of Magna Carta a distinction between escheats held ut de corona and those held ut de escaeta.  This terminology, at least, appears to be anachronistic, for the examples cited (taken from Madox) date from the reign of Henry III and later.

6

PR 26 Henry II (1180), 33; H. Hall (ed.), The red book of the exchequer, 3 vols. (Rolls Series, 1896), i, 201.

7

PR 22 Henry II (1176), 98.

8

PR 27 Henry II (1181), 16.

9

PR 28 Henry II (1182), 148-9.

10

PR 31 Henry II (1185) 1-12.

11

PR 33 Henry II (1187), 12-30.

12

PR 14 Henry II (1168), 46.

13

PR 26 Henry II (1180), 122.

14

Ib., 32-3; PR 27 Henry II (1181), 145.

15

PR 19 Henry II (1173), 30, 79.

16

PR 33 Henry II (1187), 12-13.

17

PR 6 Richard I (1194), 171.

18

PR 1 Richard I (1189), 1-19; PR 2 Richard I (1190), 4-8.

19

PR 6 Richard I (1194), xx-xxj, 1-27; W. Stubbs (ed.), Chronica Magistri Rogeri de Houeden, 4 vols. (Rolls Series, 1868-71), iii, 266.

20

PR 6 Richard I (1194), 125; Red book of the exchequer i, 160.

21

PR 8 Richard I (1196), 205; Red book of the exchequer i, 308-10.

22

Ib., 122.

23

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 128; Liber feodorum.  The book of fees commonly called Testa de Nevill, 2 vols. In 3 (1920-31), i, 119.

24

PR 4 John (1202), 9-10.

25

Ib., 163-4

26

PR 3 John (1201), 18; Rot.Ob.Fin., 113.

27

Curia Regis Rolls i, temp. Rich. I – 2 John (1922), 263.

28

Book of fees i, 186.

29

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 312 (Robert as rebel); PR 3 Henry III (1219), 120, PR 8 Henry III (1224), 52 (Robert’s first and last payments); PR 13 John (1211), 60 (Simon’s pardon).

30

PR 2 John (1200), 236.

31

PR 4 John (1202), 159-60.

32

Details concerning Lancaster in this year from PR 3 John (1201), 269-76.

33

PR 4 John (1202), 165.

34

PR 5 John (1203), 231.

35

Rot.Lit.Claus. i, 55.

36

Rot.Ob.Fin., 147.

37

PR 6 John (1204), 257.

38

PR 7 John (1205), 174-5.

39

PR 4 John (1204), 5.

40

PR 5 John (1203), 171.

41

PR 8 John (1206), 71.

42

PR 7 John (1205), 180.

43

Ib., 175-6.

44

PR 8 John (1206), 69; PR 13 John (1211), 149.

45

PR 10 John (1208), 163.

46

Book of fees i, 17-48.

47

PR 11 John (1209), 4.

48

Ib., 151; Book of fees i, 42; Red book of the exchequer ii, 550.

49

PR 12 John (1210), 61; Book of fees ii, 689.

50

PR 12 John (1210), 151; Book of fees i, 63, 211.

51

PR 12 John (1210), 184; Book of fees i, 615.

52

PR 13 John (1211), 65 (Gloucester), 258 (Exeter).

53

Ib., 11.  350 marks were pardoned, and more may have been - the disappearance of the 1213 pipe roll makes it impossible to tell how much Bigod eventually paid of a debt which had been cleared when the 1214 pipe roll was drawn up.

54

J.C. Holt (ed.), `Praestita roll 14-18 John’, in PR 17 John (1215), 93 (Mortimer), 94 (Gant), 96 (Devon).  Details of service owed from I.J. Sanders, English baronies: a study of their origins and descent, 1066-1327 (Oxford, 1960), 46 (Gant) and 75 (Mortimer), PR 2 Henry III (1218), 90 (Devon).

55

Holt, `Praestita roll’, 94, 97; Sanders, English baronies, 35.

56

On this point I differ from J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 316-17.

57

PR 2 Henry III (1218), 56; Holt, `Praestita roll’, 102-3, where the Canterbury names are also recorded.

58

The figures are discussed by F.R.H. du Boulay, The lordship of Canterbury (1966), 76-8.

59

PR 12 John (1210), 215; Red book of the exchequer i, 370-2; H.M. Chew, The English ecclesiastical tenants-in-chief and knight service (Oxford, 1932), 123-4.

60

PR 13 John (1211), 151.

61

Holt, `Praestita roll’, 97.

62

PR 11 John (1209), 24-6 (Leicester), 201 (Toni).

63

PR 12 John (1210), 204- 5.

64

Ib., 5-6 (Kenilworth), 128 (Tickhill).

65

PR 13 John (1211), 68.

66

`Annales prioratus de Dunstaplia’, in H.R. Luard (ed.), Annales monastici, 5 vols. (Rolls Series, 1864-9), iii, 35.

67

Holt, Magna Carta, 479.

68

Book of fees i, 576-9 (FitzWalter);  Sanders, English baronies, 103 (Vescy).

69

Figures from Chew, English ecclesiastical tenants-in-chief, 19.  For Herbert Poor see B.R. Kemp. `Poor [Pauper], Herbert (d. 1217)’: http://www.oxforddnb.com.view/article/22524.

70

G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England customarily called Glanvill (2nd edn., Oxford, 1993), 171-3.

71

C.D. Tilley, `The honour of Wallingford, 1066-1300’, unpublished Ph.D. thesis, King’s College, University of London, 2011, 338-48 – accessed at https://kclpure.kcl.ac.uk/portal/.

72

Book of fees i, 32-3; identifications or rebels from RLC i, passim.

73

Rot.Ob.Fin., 519; PR 16 John (1214), 24.

74

Victoria County History of Hertfordshire ii (1908), 165-6.

75

Book of fees i, 602-4.

Referenced in

From the Tower, John sends a coded message to his queen (The Itinerary of King John)


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Original Latin

XLIV

Homines qui manent extra forestam non veniant de cetero coram justiciariis nostra de foresta per communes summonitiones, nisi sint in placito, vel pleggii alicujus vel aliquorum, qui attachiati ssint pro foresta.

44

Men who reside outside the forest are not in future to come before our forest justices upon common summonses, unless they are involved in pleadings, or are the pledges of a person or persons who have been attached for forest business.

Audio commentary


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Original Latin

XLV

Nos non faciemus justiciarios, constabularios, vicecomites, vel ballivos, nisi de talibus qui sciant legem regni et eam bene velint observare.

45

We will not appoint justices, constables, sheriffs or bailiffs except from such as know the law of the kingdom and are willing to keep it well.

Audio commentary


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Original Latin

XLVI

Omnes barones qui fundaverunt abbatias, unde habent cartas regum Angliae, vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut habere debent.

46

All barons who have founded abbeys for which they have charters of the kings of England, or ancient tenure, are to have the custody of them when they are vacant, as they should have.

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Commentary for academic researchers

Monasteries, patrons and kings

Clause 46 follows no. 43 among the Articles of the Barons very closely. It differs from it in spelling out that its beneficiaries are to be all the barons who have founded abbeys, and in adding that these are to have the transmitted right `as they should have’, as if to underline the king’s delinquency in withholding it, but there are no differences of substance. Both Clause and Article are, however, oddly placed in their respective documents. The immediate predecessor of each is the same, the king’s undertaking to appoint as his officials only men who know the law of the land and can be trusted to maintain it. But whereas among the Articles, no. 42 is the third of a small group primarily concerned to exclude foreigners from positions of power and influence, whether as soldiers or administrators, around the king and in the government of the realm, Clauses 45 and 46 of the Charter are sandwiched between clauses dealing with the royal forests, and the two further clauses prescribing the exclusion of aliens come later. As a result, both Article 43 and Clause 46 have the appearance of a measure dealing with an issue which was regarded as needing a remedy, but which had no obvious context in either document within which it should be placed. This may have been because Clause 46 is the only clause in the Charter to be solely concerned specifically with baronial rights in the church, and it is also the only one relating to monasteries (a short passage in Clause 53 which also deals with these issues appears to be linked to Clause 46, though the clumsiness of its phrasing obscures its purpose – it is discussed below).

By the thirteenth century the patronage of monasteries in England had proliferated widely. Out of 425 religious houses for which the necessary evidence survives, 106 may be reckoned as falling within the patronage of the crown. A further twenty-seven had bishops as patrons, but far more had lay patrons – eighty-nine had earls, and at least 203 had barons and lesser landowners, as their patrons.1 Patronage in this context entailed a wide range of rights and privileges, usually resulting from descent from the original founder of the religious house concerned, though they could also be transferred from person to person like any other form of property. They included important spiritual benefits, notably the right to burial in the monastic church, and prayers and good works for the well-being of the soul of the founder and of his or her descendants.2 When Hugh (ii) Mortimer of Wigmore died in 1180/1, and was buried in his foundation of Wigmore Abbey, it was a source of comfort to his son and heir to learn that his father’s commemoration there included a daily mass, the singing each week of the office of the dead, accompanied by distributions of bread and ale to the poor, and every year on the anniversary of his death a further distribution to 100 paupers, each of whom received a loaf of bread, two herrings and soup.3

But the secular advantages inherent in the patronage of a monastery were no less important. In general terms, a well-run monastery could be a source of prestige for its founder and his heirs. Links between a lord and his retainers or tenants could be forged or strengthened by a shared interest in a monastery, if they united to confer benefits upon it or had relatives among its inmates. A religious house could be expected to provide its lord with hospitality if he needed it, and if it had had churches appropriated to it, then these could be used, by agreement, to provide the means of support for the patron’s clerks, a point clearly illustrated by events in the history of the Benedictine priory (later abbey) of Walden. The foundation charter which Geoffrey (i) de Mandeville, earl of Essex, granted to Walden in Stephen’s reign conveyed no fewer than nineteen churches to the monks,4 causing Geoffrey’s second son William, his eventual successor as earl, to complain later that `his father had confirmed all the churches of his fee to our monastery, so that he had been unable to grant a single one of these to his own clerks ...’.5 It was to solve this difficulty that William made an agreement with the monastery which gave him, `personally’, the right to present the clerk of his choice to any one of seven specified churches which fell vacant during his lifetime. This agreement lapsed on the earl’s death in 1189, but the issue clearly remained a contested one, for one of the by-products of the quarrel between the monks and Geoffrey FitzPeter, William’s successor as earl of Essex and patron of Walden (described in more detail below), was a dispute over Geoffrey’s right to present to the abbey’s churches, one which was resolved by a compromise similar to the earlier agreement with Earl William. Geoffrey relinquished his claims, but on condition that he and his first-born son should have the right to present suitable persons to nine named churches (only three of them had appeared in the earlier agreement) during their lifetimes.6

Some lords had the right to nominate an inmate, which could be useful, for instance, for a father needing to provide for an unmarried daughter or a younger son. And above all, although the land granted to an abbey or priory at or after its foundation could seldom be recovered, it could still be controlled, with appropriate discretion, through the founder’s ability to influence the election of its head when the house fell vacant, and to administer its estates for as long as a vacancy lasted. The importance to a patron of his role in the choice of a monastic superior is well brought out by the emphatic complaint of the Lincolnshire landowner Thomas Darcy in 1200, that the canons of Nocton, a small Augustinian house a few miles south-east of Lincoln, had elected their prior and presented him to the bishop, `who admitted him when he should not have done so, because that house is situated on his inheritance and his ancestors who were founders have elected and presented etc.’7 Such a claim, implying straighforward nomination, was becoming outmoded by this time, but many monastic founders clearly expected, or even demanded, to play at least an indirect part in elections, and no doubt they usually made their preferences clear and obtained the results they wanted (which must often have been those the monks wanted as well).

There is no reason to suppose that the king had been in any way involved in the foundation of Nocton Priory, or of most other monasteries founded by lay lords (Darley Abbey in Derbyshire, which was founded by Robert de Ferrers, second earl of Derby, on royal demesne late in Stephen’s reign, was probably an exception).8 The terms in which the link between monasteries and their founders is set out by Clause 46 are consequently unexpected. Its beneficiaries are the barons, not the monasteries, and it makes the former’s right to custody dependent on their having either royal charters or ancient tenure. But although royal charters for monasteries are very common, charters for barons as patrons of monasteries are very rare indeed. Charters for laymen occasionally include such phrases as in advocacionibus ecclesiarum et capellarum or in ecclesiis et capellis among the terms under which a privileged grant of land is to be held, but not only do such expressions appear but rarely, they are also irrelevant to monasteries. It seems possible therefore, that the reference to charters was primarily included for the sake of completeness, and that for most religious houses ancient tenure – that is from before 1135, since the reign of Stephen did not count – was the principal justification for a founder’s rights.

The king’s right to appoint to a vacant monastery when forfeiture, escheat or wardship brought a lay founder’s other lands and rights into his hands was unquestioned. Thus the monastic chronicler who recorded the death of Abbot Robert of Chester in 1184 entered no complaint when he described how the assets of the monastery were seized into the king’s hands and entrusted to a royal clerk, who accounted for them at the exchequer (they did not yield much). Earl Ranulf (iii) of Chester was a minor, and had been in the king’s wardship since the death of his father in 1181, and so control of the abbey passed to Henry II, who in 1185 cooperated with the archbishop of Canterbury in appointing Abbot Robert’s successor.9 But kings were seldom content only to maintain their traditional rights, Angevin kings least of all, and were constantly on the look-out for opportunities to extend them. In around 1176 Henry II was able to take over the small Augustinian priory of Woodham Ferrers in Essex (later known as Bicknacre) by pardoning debts of some £275 owed to the crown by its founder, Maurice FitzGeoffrey of Tilty, a former sheriff of Essex and Hertfordshire – in his charter for the canons, the king confirmed them in the lands granted them by Maurice, which in future they were to hold `as if of my own gift’ (sicut de meo proprio dono).10

 

Pressing a claim: the example of Walden Abbey

Woodham Ferrers remained a priory throughout its history. Clause 46 spoke of abbeys, perhaps deliberately, for there is evidence that both Henry II and Richard I claimed that all abbeys were, or should be, in the king’s gift.11 Indeed, an explicit statement to that effect was recorded by Adam of Eynsham, in his account of how in the mid-1190s Bishop Hugh of Lincoln defended his own right to appoint a new abbot of Eynsham against the crown, whose representatives warned him that `Henry, the king’s father, had made a general ordinance (generali constitutione) by which all the abbeys of the kingdom were to be in his gift’, and added that King Richard was unlikely to allow the bishop `to exercise his privilege although it had been obtained in the days of his ancestors, in spite of his father’s decree (decretum) ...’.12 That Hugh nevertheless persevered in his claim and obtained a judgment in his favour in the Curia Regis may indicate that Henry II’s `decree’ was more a statement of intent, or even of wishful thinking, than a formal enactment. But that he and his successor were indeed thinking in such terms is suggested by another case, involving the Essex priory of Walden.

Walden was founded in Stephen’s reign by Geoffrey (i) de Mandeville, earl of Essex, who died in 1144 when in rebellion against King Stephen and consequently forfeited his lands. Early in the next reign these were restored to his son Geoffrey (ii) by Henry II, along with the comital title, but Henry `did not grant him the monastery of St James as well, but kept it and all its appurtenances in his own hands ...’.13 Consequently when Prior William died in 1164, the monastery passed into the hands of the king, who appointed a successor after his officers had administered it for over a year (they did not account for any revenue at the exchequer).14 Around the same time Earl Geoffrey died, to be succeeded by his brother William de Mandeville, who with the earldom `succeeded wholly and fully to the manors and all other rightful possessions, with the sole exception of the Tower of London ...’.15 It is unclear whether those `rightful possessions’ included the patronage of Walden Priory, and no opportunity to put the matter to the test arose during Earl William’s lifetime, since when he died, late in 1189, the prior was still that Reginald whom Henry II had nominated in 1166. But that the king had retained at the very least a commanding say in the affairs of the monastery is shown by events in the following year, when the monks, on Prior Reginald’s initiative, appealed to Richard I to have the status of their house raised to that of an abbey. Clearly they believed that the king was the proper person to decide upon this, and Richard, who was then in Poitou, manifestly agreed with them, for in a writ to the justiciar, William de Longchamp, he commanded him to inquire whether the priory was sufficiently endowed, whether it was free from subjection to any other monastery, `and whether my father of good memory, King Henry, had the last presentation to it, and instituted Prior Reginald who is installed in the same priory ...’. If these conditions were met, he concluded, `then we desire, command and direct that that priory from this time forward and for ever more be made an abbey in the name of the Lord’. Longchamp’s report must have been satisfactory, for on 1 August 1190 Walden Priory became Walden Abbey.16

A few months earlier the extensive Mandeville barony had been granted to Geoffrey FitzPeter, but he did not also obtain the patronage of Walden, which the king retained for himself. That Richard did this because the monastery had become an abbey is suggested by Geoffrey’s bitter response to its elevation. He clearly claimed to have rights at Walden, for in 1191 he made it a formal visit and, then, standing at the chapter-house door, `he turned to the abbot in great indignation and burst out with these words, in the hearing of everybody: “My lord abbot, you and your monks have disinherited me and mine by turning my priory into an abbey. You have cast me aside and subjected yourselves completely to the power of the king” ...’.17 He therefore conducted a sustained campaign of persecution against the monks and their property, and when in 1199, by now justiciar, he helped to secure Count John’s succession to the throne, and was made earl of Essex at the coronation feast, he tried to take advantage of the new king’s favour by asking him to make the abbey a priory again. When John refused, Geoffrey made a direct appeal for a leading role in the process whereby abbots were in future chosen – in the words of the abbey chronicle (probably with a fair amount of exaggeration), `he wanted to be allowed to deprive our house, at some future time, of its pastor, to hold it in his own hand as an hereditary right, to make provision for the abbot to be elected formally by the brethren, and thereafter, in so far as it seemed permissible for a layman, to institute the abbot of his own choice ...’.18 For Geoffrey FitzPeter, and no doubt for other monastic patrons too, control of an abbey during a vacancy, and then a formal role in the election of its superior, were the most important of their rights, and the ones most seriously compromised by royal usurpation.

 

Controlling the pastoral staff

In 1199 King John had granted his justiciar’s request, being unwilling, according to a confirmation charter issued by Archbishop Hubert Walter, `to withhold another’s right unjustly’.19 Probably John was less concerned with the justice of the case than to win the support of the man at the head of the government of England, and another grant which he made early in his reign, relevant to the issue of monastic patronage, may have been influenced by similar considerations. On 16 August 1200 John showed his gratitude (fulsomely expressed) for the services of William Marshal by granting him, inter alia, `the right of presentation of the pastoral staff of Notley Abbey’ (donacionem baculi pastoralis abbacie de Nuthlegha), this being `of his fee’20 – one of the rights that had come to the Marshal with his wife Isabel de Clare, a kinswoman of Earl Walter Giffard and his wife Ermengard, the founders of the abbey. Notley was one of the few Augustinian houses to be styled an abbey.21 This may have been due to its being one of the wealthier such monasteries, and also to its affiliation to the Arrouaisian order, but it may also have owed something to its having apparently acquired close links to the crown. In a confirmation charter for the canons issued on 19 April 1200, John referred to his father as having `taken the same canons and all their things and possessions from the hand of the aforementioned earl into his own hand, protection and custody, to be specially ruled as canons under his lordship (suos dominicos canonicos) ...’.22 The history of Notley is very badly documented, and it is only possible to say that there is no evidence that Henry II himself made the house an abbey as his son did Walden. But the wording of Henry’s charter, as repeated in his son’s, nevertheless suggests that the king’s position vis-à-vis the monastery entailed something more than mere benevolence, and it seems clear that John believed that the right to present its head, given physical form in the abbot’s crozier, was his to give away, and in his own charter he spelt out that the Marshal would thereafter hold that right from the crown.

The crozier was thus a symbol of ecclesiastical lordship, as it was again in March 1208, when John responded to the imposition of an interdict on England and Wales by ordering a wholesale confiscation of ecclesiastical property, including that of monasteries – in 1213 a litigant referred to the king as having placed a keeper in the Norfolk abbey of St Benet of Hulme, `as he did in all the religious houses in England’.23 John soon began to relax his grip, and most religious houses were handed back to the superiors who had been directing their affairs before the interdict, having first paid for their release.24 According to the Meaux chronicler, every religious house made fine to recover its possessions except for his own, where Prior Alexander refused to pay the 1000 marks (£666. 13s. 4d.) demanded in the king’s name by Richard Marsh, with results disastrous for himself and the monks.25

Some monasteries, however, along with their possessions, were placed in the hands of their lay patrons. One of the latter who was favoured in this way was Roger Bigod, earl of Norfolk. On 6 April 1208 the king ordered that he should have `all the lands, rents and things of abbots whose crozier is in his gift (unde crocia pertinet ad donacionem suam)’, as well as those of clerks and of priories and other religious houses.26 Most (not all) of these grants (which did not otherwise make reference to a crozier) were made to men of power and influence. Thus Cartmel was entrusted to William Marshal, Walden to Geoffrey FitzPeter, and Sele and Rusper to William de Briouze, while William Brewer, who had founded three monasteries between 1196 and 1201, received `the abbeys, priories and churches which are of his fee ...’.27  There is no reason to suppose that any of these houses, or others which were treated in this way, were vacant at this time, and they could therefore have been placed in the keeping of their abbots or priors. In entrusting them to their patrons, many of them men he might reasonably have wished to conciliate, or at least to avoid offending, John may have thought he was making effective use of a source of patronage which the interdict had given him. But he was also underlining the extent to which he regarded religious houses, like the croziers which symbolized control over them, as being potentially at his own disposal. It is significant in this context that when in Easter term 1208 proceedings between Ralph de Clere and Lewes Priory over Atlingworth church, Sussex, were suspended as a result of the interdict (as happened in a number of lawsuits involving religious houses at this time), the reason given was that `the priory is in the hand of Earl Warenne through the lord king’.28 As a descendant of the founder Warenne was the patron of the monastery (he was later buried there, as were almost all his forebears and descendants), but it was not this but an act of royal favour which placed it in his hands in 1208.

 

Enforcing a doubtful claim: the case of Kenilworth Priory

Although Clause 46 could be construed as implying that John went in for large-scale usurpation of the rights of founders and their kin in monasteries of their foundation, before and after the interdict, there is no clear evidence that he did so – it suited him better, and was more in keeping with his style of government, to let it be known that he had the power to seize upon rights of custody, and to commandeer monastic property and revenues, and to keep the threat of his doing so hanging over patronal heads. But there are three cases where he does seem to have intruded upon the rights of others, and to have exploited monastic vacancies at patrons’ expense. The three cases, involving Kenilworth Priory, Whitby Abbey and the monasteries founded by the ancestors of John’s first wife, Isabella of Gloucester, were different in character, however, for in the first John exploited an opening created.for him by others, whereas the second and third look more like straightforward acts of usurpation, in the case of Whitby one that was probably made easier by the patronal rights having become divided.

The Augustinian priory of Kenilworth was founded in around 1125 by Henry I’s chamberlain, Geoffrey de Clinton, who in his foundation charter gave the priory `the whole expanse (planam) of land of Kenilworth ... except for the parts of it which I have retained to make my castle and park ...’.29 Henry II’s confirmation charter, issued in 1163/4, extended the exceptions to include the borough and a fishpond.30 In 1173 or shortly afterwards, however, Henry took over the castle, having doubtless been alerted to its strategic value during the recent rebellion against his rule, and in 1179 made his possession permanent by forcing Henry de Clinton, Geoffrey’s grandson, to accept the Buckinghamshire manor of Swanbourne in exchange for Kenilworth Castle.31 Clinton may have tried to resist what was by any standard a most inequitable deal, but royal power was too great, and sometime between 1199 and 1203 he quitclaimed the castle to King John, while reserving his other property at Kenilworth with all its attendant liberties. Nothing was said about Clinton’s rights as patron of Kenilworth Priory, however, an omission which may have helped pave the way for the difficulties which followed.

Prior Silvester died on 6 August of a year which the priory chronicler, whose account of subsequent events is often hard to follow, and is also sometimes marred by imprecise chronology, records as 1203,32 but which is more likely to have been 1204, since on 8 August of that year the king entrusted custody of the vacant priory to two of his officers, before confirming Walter, formerly the cellarer of the house, as prior on the 21st.33 The chronicler described Walter as having been `truly elected and confirmed’, before telling how almost at once three discontented canons approached the king, and suggested to him `that he was the true patron, and the priory belonged to his gift, and that an adversary of his was now elected as prior ...’. As far as it is possible to tell, the dissidents’ claim was without the least foundation, but John lent a willing ear to their allegations, and when Walter came before him to obtain confirmation (perhaps a personal grant, to follow the earlier mandate), he was sent away again, while the `most wicked’ of his enemies, one William, was made prior in his stead and confirmed in office by an obliging bishop (unnamed, but most likely Geoffrey de Muschamp, bishop of Coventry).

For three years William wasted the goods of Kenilworth Priory, which was also in 1207 required to provide temporary accommodation for one of the king’s illegitimate sons,34 until at last the bishop conducted a visitation of the house. Hoping to forestall an investigation William appealed to the papal curia, but this recourse was in vain, for judges-delegate were appointed to examine his rule, and in February 1208 they deposed him.35 When William went back to Rome in the hope of being restored to office, Innocent III turned a deaf ear, but he had more success with King John, to whom his complaint that he had been deposed `in dishonour and enmity to him [the king]’, when combined with insinuations about the extension of papal power at the expense of royal authority, became all the more plausible later in the year following the imposition of the interdict. Walter appears to have been restored to office, but his rule was largely nominal, for John installed William in the best of the priory’s manors and entrusted the custody of the house to a royal clerk, who with William and his two accomplices disposed of the monastery’s properties at their pleasure. In fact most of the revenues must have gone to the king, for the appointed clerk, Henry of Cerne, to whom the priory was committed on 20 August 1209, accounted for receipts totalling nearly £1300 between the following November and February 1213.36 Not until William died of a stroke on 2 September 1221 did the confusion come to an end and a regular succession of priors recommence.

Twice in January 1208 and again in December 1213 John treated the priory as vacant by presenting to churches impropriated to it (one of the beneficiaries was Henry of Cerne),37 even though in the latter year he himself owned to uncertainty as to his own rights in the monastery. On 30 August 1213 he ordered the constable of Kenilworth Castle and two other men to go to the priory together with a clerk of the archbishop of Canterbury, and there to `diligently inquire what right we have had and should have in the priory and the election of the prior, and what seisin we have had of it ...’.38 These instructions were probably the sequel to a mandate to elect a prior which John issued on 25 July 1213,39 and which resulted in William, the sub-prior of Osney Abbey, being chosen. This second William was not elected, however, until the summer of 1214,40 and the interval may have been due to reservations as to the validity of John’s order, or to his rights in the monastery, which therefore remained in the king’s hand in the meantime.

The man who was almost entirely overlooked during these events was the priory’s patron, Henry de Clinton, whose interests were acknowledged only in some modest payments for `services to the lords of the ground (fundorum) of the church of Kenilworth’.41 His rights in vacancies, and in the elections to the priorate which concluded them, were in fact extremely limited. In two letters to Archbishop Langton, undated but without much doubt to be associated with the investigation of the king’s claims in 1213, Clinton himself reported that from the time of its foundation the patrons of Kenilworth Priory had not claimed any `custody or lordship in that house or its possessions’, but only that after an election `the presentation of the elect’ belonged to them – the phrase suggests that they played a formal part in each new prior’s installation. A report made at the same time by the canons of Baswich, near Stafford, another Augustinian priory, added to this that following the death of a prior, the custom at Kenilworth was for the convent to proceed immediately to the election of his successor, without asking for consent or counsel from anybody.42

These limitations were such that strictly speaking Clause 46 could hardly have applied to Kenilworth Priory, since its patron did not claim the right protected by it. Nevertheless it seems unlikely that the clause’s drafters would have regarded what happened at Kenilworth as irrelevant to their concerns, involving as they did the installation of an unelected prior, presentations to the priory’s churches, and the appointment of a royal custodian who administered the possessions of the house for the benefit of the king. Indeed, when John intruded himself into the affairs of Kenilworth, he claimed far more than either the priory’s founder or his successors had done. But the issue was not a purely material one. Although Henry de Clinton’s ability to intervene in the monastery’s affairs, at elections to the priorate or any other time, was very restricted, this did not prevent his being an attentive patron, who issued a number of charters on the priory’s behalf, and following his death, sometime before 17 March 1218,43 he was buried in its chapter-house, alongside his father and grandfather – the priory chronicler referred to him as the `third founder’ of the house.44 For him, and no doubt for many other monastic patrons, there must also have been an important emotional attachment at stake, one closely associated with the role often played by monasteries as places of burial for the families of their founders. The latter function was one which kings tampered with at their peril, and it is not surprising that by September 1216 Clinton had joined the king’s enemies.45 He had a number of other grounds for resentment. A tenant-in-chief, albeit on a small scale, he is unlikely to have welcomed the loss of that status which followed John’s transfer of his service to William Brewer on 15 April 1204, with instructions that in future he should answer to William as his lord,46 and his family’s loss of Kenilworth Castle probably also continued to rankle. John’s treatment of Kenilworth Priory doubtless constituted a significant additional grievance.

 

Spoliation: the case of Whitby Abbey

The case of Whitby Abbey, an important Benedictine monastery on the North Yorkshire coast, was very different. The abbey had originated as a hermitage, established in around 1077 with the support of the Percys, the lords of Topcliffe, in the ruins of a famous Anglo-Saxon monastery, and after some years of uncertainty and strife the Percys also gave their backing, along with substantial benefactions, when in 1109 the hermitage became an independent Benedictine abbey, with a member of their family named William as its first abbot.47 The Percys were the founders and patrons of Whitby, recognised as such – in successive confirmation charters for the abbey, Henry II, Richard I and John all referred to `William de Percy and Alan his son its founders ...’.48 It is possible that the crown was regarded as having special rights of some kind where the abbey was concerned. From the thirteenth century onwards it was one of the monasteries whose heads were summoned to perform military service, but there is no evidence either that they did so,49 or that the abbey held land directly from the crown,50 and overall the Percy interest was clearly paramount - that William (ii) de Percy, who died in 1174/5, should have been referred to as the `advocate’ of the house underlined its close association with his family.51 His death, however, precipitated serious problems, for his heirs were his two daughters, Maud and Agnes, married to William de Newburgh, earl of Warwick, and Jocelin de Louvain respectively.52 In a partition of William’s lands made at Easter 1176 it was agreed that his rights in Whitby Abbey should be shared – Abbacia de Wytheby in communi53 – but this did not stop Henry II taking over the monastery, with its possessions, during a two-year vacancy in 1181-2,54 or Richard I doing the same in 1195.55

In 1204 Countess Maud died, and her heir was her great-nephew William (iii) de Percy, who was a minor – King John granted his wardship to William Brewer. Agnes had died a year earlier, and her heir was her younger son, Richard de Percy, who was of full age. There is no certain record of the death or resignation of Abbot Peter of Whitby, but it probably occurred between 26 October 1205, when the king gave a charter for the abbot and convent of Whitby, confirming them in the hermitage of Goathland,56 and Michaelmas 1206, when the prior, who had presumably since become the acting head of the house, was recorded as owing three palfreys for it.57 This would also explain why the abbey was again taken into the king’s hands, and its resources once more exploited on his behalf. In 1209 William of Wrotham accounted for £414. 1s. 9d., issues of the monastery from the previous three years once allowance had been made for the maintenance of the abbey and its occupants.58 In 1212 Gilbert FitzReinfred accounted for the revenues of a further two years, totalling £205. 2s. 8d.,59 while between that year and 1214 John presented to three of the abbey’s churches, together with a chapel.60 The fact that young William de Percy was under age could plausibly have given the king the right to half the monastery’s revenues during either his minority or the abbey’s vacancy (which did not end until 1214), but under the partition of 1176 the other half should have gone to Richard de Percy, making him at least £300 better-off. The fact that there is no evidence that John even considered giving Richard his share, or compensating him for it, must help to explain why he, too, became active in enmity to the king, and was one of the twenty-five barons appointed to enforce Magna Carta.

 

Frustration: the claims of Geoffrey de Mandeville

It would doubtless be going too far to suggest that Richard de Percy was solely responsible for the addition of Clause 46 to Magna Carta, not least because one other magnate can be shown to have had a direct interest in its inclusion. Letters sent to the sheriffs of Somerset and Gloucestershire on 23 and 24 June 1215 ordered each of them to put Geoffrey de Mandeville, earl of Essex and recently married to John’s first wife, Isabella of Gloucester, in possession of `the advowsons of the abbeys and religious houses which earls of Gloucester have founded in your county, and the liberties in the same which W[illiam] earl of Gloucester, the father of Isabella, the wife of the same G de Mandeville, had and ought to have.’61 The most important of the monasteries concerned was certainly Tewkesbury Abbey, Gloucestershire, with its daughter-houses of St James, Bristol, and Cranborne, Dorset, but Geoffrey could also claim the patronage of Keynsham Abbey, Somerset, along with that of Margam Abbey, Glamorgan. Tewkesbury, Keynsham and Margam were wealthy houses, with large monastic populations, and in the light of royal claims it may also be significant that all three were abbeys.  

These monasteries had hitherto been under John’s own patronage, since following the annulment of his marriage to Isabella he kept control of nearly all her lands and rights.62 When she remarried, the advowsons were clearly not placed at the disposal of her second husband – on the evidence of the king’s directives, it was only the lands of the honour of Gloucester which were handed over.63 Those lands were taken back for several months when Mandeville failed to keep the terms for the payment of the huge fine demanded of him for his marriage by the king, but although the manor of Tewkesbury was returned to him on 9 August 1214,64 shortly after 18 August it was the justiciar Peter des Roches, acting in the name of the absent king, who ordered the royal custodians of Tewkesbury abbey, which had been vacant since 7 May, to give seisin of it to the newly elected Abbot Hugh.65 Still more tellingly, Keynsham Abbey, recorded as being vacant and in the hands of royal keepers at various times in May, August and October 1214,66 was finally given into the hands of a new abbot on 15 January 1215 on the direct orders of the king.67 In neither case was Geoffrey de Mandeville said to have been consulted or in any way involved – he could reasonably have expected, for instance, to be asked to licence the monks of Tewkesbury to proceed to the election of a new abbot, as Isabella’s third husband, Hubert de Burgh, was in 123268 – and he had clearly had no sort of custody of either Tewkesbury or Keynsham during their vacancies. John’s reluctance to lose control of what he, as well as the barons, clearly regarded as valuable rights of patronage, is demonstrated by his having at first ordered an investigation of the advowsons claimed by Mandeville,69 before he decided to make a virtue of necessity, cancelled the order, and commanded that he be put in possession of his rights without delay.

 

The issues at stake

Evidence for other examples of the malpractice which Clause 46 aimed to remedy is undeniably scarce, although with this one, perhaps more than with most, the possibility has to be kept in mind that there were notorious cases which have been lost to sight, thanks to the disappearance of the chancery records of the years between 1208 and 1212, and of the pipe roll for 1213. . During the interdict John presented clerks to a large number of churches.70 Many of them were his own to dispose of, or had become so after 1204 because their patrons were Normans. Many other churches had been in the patronage of bishops who left the country following John’s excommunication, and were seized as a result. Where churches impropriated to monasteries were concerned, they were variously the property of vacant houses of which the king was the patron (except for Whitby and Kenilworth), or at his disposal as a result of a wardship or escheat, or had been forfeited by outlaws like William de Briouze, or sequestrated from the rebels of 1215/16.

Although these presentations no more provide evidence for extensive usurpations than other sources do, John’s withholding of Geoffrey de Mandeville’s rights, together with his treatment of Kenilworth and Whitby, and his apparent persistence in the general claim to the patronage of abbeys asserted by his father and elder brother, suggest that the barons were well-advised to want to secure their rights in abbeys founded by their ancestors. This is also argued by the inclusion of this issue, albeit in a rather different form, in Clause 53 of Magna Carta, where it was one of the points concerning which John was granted the crusader’s three-year remission before he could be required to deal with it. Referring in a convoluted way to `abbeys which were founded on a fee other than our own, in which the lord of the fee has claimed his right ...’, the ungainly Latin phrasing of Clause 53, taken together with the fact that it has no corresponding entry among the Articles of the Barons, may indicate that it was a late addition to Magna Carta, inserted by barons who were dissatisfied with some of the latter’s clauses. Where rights over monasteries were concerned, they may have objected to Clause 46’s making no mention of redress, and being confined to vacancies – the relevant phrase in Clause 53 seemingly envisaged numerous claims against the crown, over unspecified matters, on which `full justice’ was in due course to be done.  

Monastic patronage may have counted for more than has sometimes been appreciated – not only by scholars but also by King John, it is arguably a sign of his lack of political wisdom that he failed to understand what their patronage of an ancestral foundation could mean to those whose rights he infringed. It could have been a matter of status, as it doubtless was for Robert FitzWalter, as he made strenuous efforts to retain control over Binham Priory,71 or it might have entailed emotional issues of the kind that surely moved the Clintons in their relations with Kenilworth Priory, described above – the fact that monasteries often acted as family mausoleums inevitably gave them a special value to their baronial patrons. Since John’s opportunistic style of government meant that the threat to the latter’s rights was ever present, and was occasionally realised, both policy and feeling led to his adversaries taking precautions against it.

1

S. Wood, English monasteries and their patrons in the thirteenth century (Oxford, 1955), 6-7. What follows is indebted throughout to this excellent book.

2

Apart from Wood, op. cit., passim, see also E. Mason, `Timeo barones et dona ferentes’, D. Baker (ed.), Religious motivation: biographical and social problems for the church historian, Studies in church history 15 (Blackwell, Oxford, 1978), 61-75.

3

J.C. Dickinson and P.T. Ricketts, `The Anglo-Norman chronicle of Wigmore Abbey’, Transactions of the Woolhope Naturalists’ Field Club, Herefordshire 39 (1967-9), 413-45, at 437.

4

British Library, MS Harley 3697, fol. 18r.

5

D. Greenway and L. Watkiss (eds. and trans.), The book of the foundation of Walden monastery (Oxford, 1999), 46-7.

6

British Library, MS Harley 3697 fols. 20r-v. That a good deal of care was taken to make this settlement legally watertight is suggested by its witness list having been headed by three royal justices.

7

Curia Regis Rolls i, temp. Rich. I – 2 John (1922), 307.

8

R.R. Darlington (ed.), The cartulary of Darley Abbey, 2 vols. (Kendal, 1945), i, iii-iv, ii, 571.

9

R.C. Christie (ed. and trans.), Annales Cestrienses; or, Chronicle of the abbey of S.Werburg, at Chester, Lancashire and Cheshire Record Society 14 (1886), 28-35; PR 31 Henry II (1185), 142.

10

Wood, English monasteries, 24; VCH Essex ii (1907), 144; PR 22 Henry II (1176), 2; N. Vincent (ed.), The letters and charters of Henry II, king of England (1154-1189) (Oxford, forthcoming), no. 227.

11

Wood, English monasteries, 98-9.

12

D. Douie and H. Farmer (eds.), The life of St Hugh of Lincoln, 2 vols (1961-2), ii, 39-42.

13

The book of the foundation of Walden monastery, 24-7.

14

Ib., 30-1.

15

Ib., 46-7.

16

Ib., 94-101. Richard himself seems to have regarded the change as taking effect a few months earlier, since he referred to land `adjacent to the abbey’ in a charter for Walden given on 7 May 1190, British Library MS Harley 3697, fols. 30r -v.

17

The book of the foundation of Walden monastery, 116-17.

18

Ib., 152-5.

19

C.R. Cheney and E. John (eds.), English episcopal acta iii: Canterbury, 1193-1205 (Oxford, 1986), no. 639 (pp. 284-5). John’s own charter has not survived.

20

Ib., 74.

21

J.C. Dickinson, The origins of the Austin canons and their introduction into England (1950), 156.

22

Rot.Chart., 46.

23

Curia Regis Rolls vii, 15-16 John, 1213-1215 (1935), 6.

24

For details see C.R. Cheney, `King John’s reaction to the interdict on England’, Transactions of the Royal Historical Society 4th series 31 (1949), 129-50.

25

E.A. Bond (ed.), Chronica monasterii de Melsa, 3 vols. (Rolls Series, 1866-8), i, 326-9.

26

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – Rot.Lit.Claus. i), 109.

27

Ib., 107 (FitzPeter), 112 (Brewer), 114 (Briouze and Marshal).

28

Curia Regis Rolls v, 8-10 John, 1207-1209 (1931), 174.

29

British Library MS Harley 3650 fols. 2r-v.

30

Ib., fols. 74r-75v.

31

R.A. Brown, `A note on Kenilworth Castle: the change to royal ownership’, Archaeological Journal 110 (1953), 120-4.

32

For what follows the fundamental source is British Library, MS Additional 35295, fols. 250r-251v.

33

T.D. Hardy (ed.), Rotuli litterarum patentium 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 44-5.

34

Rot.Lit.Claus. i, 86.

35

Also recorded H.R. Luard (ed.), `Annals of Dunstable’, Annales monastici, 5 vols. (Rolls Series, 1864-9), iii, 30.

36

PR 12 John (1210), 5-6; PR 13 John (1211), 197-8; PR 14 John (1212), 10.

37

Rot.Chart., 176, 195, 205.

38

Rot.Lit.Pat., 103.

39

Rot.Lit.Claus. i, 148.

40

Ib., 207. There must be some doubt as to whether the new prior ever took up his office.

41

PR 12 John (1210), 5-6.

42

British Library, MS Harley 3650, fols. 62v-63r.

43

Rot.Lit.Claus. i, 356 ordered the return of his inheritance to Henry de Clinton’s son, another Henry. His widow Amice litigated at the 1221/2 Warwickshire eyre, D.M. Stenton (ed.), Rolls of the justices in eyre for Gloucestershire, Warwickshire and Staffordshire, 1221, 1222, Selden Society 59 (1940), nos. 369, 473, 481, 710.

44

British Library, MS Additional 35295, fols. 251v-252r. The chronicle’s statement that Henry died on 30 October 1224 cannot be correct, but may be a mistake for his burial. His son Henry died in 1232/3.

45

Rot.Lit.Claus. i, 288.

46

Rot.Lit.Pat., 41.

47

Details from J. Burton, The monastic order in Yorkshire, 1069-1215, 32-8.

48

M.T. Martin (ed.), The Percy chartulary, Surtees Society 117 (1911 for 1909), 149-50, 152-3; Rot.Chart., 121.

49

H.M. Chew, The ecclesiastical tenants-in-chief and knight service (Oxford, 1932), 11, 76-7.

50

Rot.Chart. 25, a charter of John for Whitby issued in the autumn of 1199, contains a phrase which refers to the possibility of either the abbot or the monastery holding land in chief (I owe this reference to David Carpenter). But there is no clear evidence that they did so. In 1250 the abbot was said to be holding a toft worth 12d. per annum from a serjeanty,but it is impossible to believe that even King John would have regarded this as constituting a tenancy-in-chief – Liber feodorum. The book of fees commonly called Testa de Nevill, 2 vols, in 3 (1920-31), ii, 1201.

51

Burton, Monastic order in Yorkshire, 183.

52

Details from I.J. Sanders, English baronies: a study of their origin and descent, 1086-1327 (Oxford, 1960), 148.

53

Percy chartulary, 461-4.

54

PR 27 Henry II (1181), 50; PR 28 Henry II (1182), 62.

55

PR 7 Richard I (1195), 28.

56

Rot.Chart., 159.

57

PR 8 John (1206), 208. What little is known of the sequence of abbots of Whitby is set out in D.Knowles, C.N.L. Brooke, V.C.M. London, Heads of religious houses, England and Wales, 940-1216 (2nd edn., Cambridge, 2001), 78.

58

PR 11 John (1209), 124.

59

PR 14 John (1212), 5.

60

Rot.Lit.Claus.i, 94, 96, 105, 108.

61

Rot.Lit.Claus. i, 216.

62

Details concerning Isabella from Robert B. Patterson, `Isabella, suo jure countess of Gloucester (c. 1160-1217), Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn., Oct 2005 [http://oxforddnb.com/view/article/46705, accessed 1 June 2015].

63

Rot.Lit.Pat., 109. In withholding the advowsons John was also showing himself less than sensitive towards the interests, and indeed the feelings, of his former wife, who may well have cared greatly about the family monasteries – Isabella is reported to have died at Keynsham Abbey.

64

Rot.Lit.Claus. i, 209.

65

Ib., 211.

66

Ib., 204, 211; Rot.Lit.Pat., 122.

67

Rot.Lit.Claus. i, 187.

68

Sir W. Dugdale, Monasticon Anglicanum, ed. J. Caley, H. Ellis and B. Bandinel, 6 vols. in 8 (1817-30), ii, 80.

69

Rot.Lit.Claus. i, 216.

70

Details from Rot.Lit.Claus. i, passim.

71

Discussed in commentary on Clause 40.


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Original Latin

XLVII

Omnes forestae quae afforestatae sunt tempore nostro, statim deafforestentur; et ita fiat de ripariis quae per nos tempore nostro positae sunt in defenso.

47

All the forests which have been afforested during our reign are to be disafforested immediately, and the same is to be done with regard to rivers which have been fenced off by us in our time.

Audio commentary

Referenced in

King John’s Lost Language of Cranes (Features of the Month)

King John’s Lost Language of Cranes (Features of the Month)


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Original Latin

XLVIII

Omnes malae consuetudines de forestis et warennis, et de forestariis et warennariis, vicecomitibus, et eorum ministris, ripariis et earum custodibus, statim inquirantur in quolibet comitatu per duodecim milites juratos de eodem comitatu, qui debent eligi per probos homines ejusdem comitatus, et infra quadraginta dies post inquisitionem factam, penitus, ita quod numquam revocentur, deleantur per eosdem, ita quod nos hoc sciamus prius, vel justiciarius noster, si in Anglia non fuerimus.

48

All the evil customs relating to forests and warrens, foresters and warreners, sheriffs and their officers, rivers and their keepers, are to be immediately investigated in each county by twelve sworn knights of the same county, who should be chosen by upright men of the same county, and within forty days of the investigation being made, they are to be completely abolished by them, never to be revived, as long as we, or our justiciar if we are not in England, know about it beforehand.

Audio commentary

Referenced in

New Letter of the Twenty-Five (Features of the Month)

New Letter of the Twenty-Five (Features of the Month)

King John’s Lost Language of Cranes (Features of the Month)

Clause 60 (The 1215 Magna Carta)

Conference at Oxford (The Itinerary of King John)


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Original Latin

XLIX

Omnes obsides et cartas statim reddemus quae liberatae fuerunt nobis ab Anglicis in securitatem pacis vel fidelis servitii.

49

We will immediately surrender all hostages and charters which have been handed over to us by Englishmen as security for peace or loyal service.

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Commentary for academic researchers

 Context and objectives

 1: The scope of the clause

Clause 49 was based on Article 38 among the Articles of the Barons, and made the same basic point concerning the release of hostages, but with some significant alterations. Its beneficiaries were to be English, no doubt because provision was made in Clauses 58 and 59 for the surrender of Welsh and Scottish hostages (any hostages John may have had from France or the Low Countries would have been regarded as outside the Charter’s remit, while Ireland only came within it after the reissue of Magna Carta in November 1216). The Clause also prescribed greater urgency than the Article, in demanding the immediate surrender of hostages and charters, and was more exact, and also limited, in identifying the relevant charters as ones made specifically as guarantees of peace and loyalty – since such documents were also drawn up for other purposes, notably to ensure repayments of debts, the greater precision may have represented a modest gain for the king. Neither the Article nor the Clause made any attempt to forbid the taking of hostages and charters in the future. Clause 48, demanding the abolition of evil customs connected with the royal forests, laid down that they were never to be resuscitated (nunquam revocentur), but there was nothing to that effect in Clause 49. This may show that the barons accepted that there could be circumstances when hostage-taking was, or at any rate might be, an acceptable practice on the part of the king, and, indeed, of others. Clause 49, however, applied to the king alone; it did not order the release of hostages taken by anyone else, although for a great baron like William Marshal the taking of hostages clearly represented one of the ways in which he might enforce his will,1 and might also be a means of bringing negotiations to completion in much less elevated circles.

It should be said that the term `hostage’ was potentially one of wide application, and that the extent of the coercion implicit in it could vary considerably. In May 1207 the sheriff of Devon was instructed to order Hervey de Heliun to pay William the cook, through William’s nephew Alan of Rising, the ransom he owed him for his daughter, whom William was holding hostage, and if he failed to do so then the sheriff was to put Alan, again acting on William’s behalf, in possession of Hervey’s Devonshire lands. Hervey failed to respond and was therefore disseised, but probably then paid the ransom, because on 7 July the sheriff was commanded to put him back in possession of his lands, while safeguarding the interests of Alan of Rising (now described as William’s servant) arising from the agreement which Hervey had made with him, `for giving him his land with his daughter whom he gives to him in marriage.’ It would appear from these two orders that William and Alan had negotiated the latter’s marriage to Hervey’s daughter, on terms which included a payment to them (the `ransom’ referred to – most likely the marriage portion, or part of it), for which the daughter was placed in their keeping as a hostage. Hervey had had to be compelled to pay up, but the marriage was still expected to take place.2 There is no record of any payment to the king for exercising his power on behalf of William and Alan (which need not mean, of course, that none was made), rather the details of the case suggest that he was acting in a routine manner to enforce a no less routine agreement between some of his free subjects, one in which the giving of a hostage (who in this case seems to have been merely entrusted to the keeping of a marriage-broker) was an unexceptionable constituent.

Arrangements like those made for the marriage of Hervey de Heliun’s daughter were manifestly not what Clause 49 was concerned with. Rather it focused upon an issue of immediate urgency to the barons, reflecting above all their determination to strike from King John’s hand one of the principal weapons in his armoury of intimidation and control, one which he had wielded principally against themselves. Hostages were essentially living guarantees for the performance of obligations towards, or for the non-performance of acts detrimental to, the person to whom the hostages were given.3 In contemporary law and custom they were not prisoners, and the distinction was upheld in commands like the one which the king sent to Robert de Vieuxpont on 18 March 1213, that he should hand Salisbury Castle over to Ernulf of Auckland, `with the prisoners and hostages who are in it ...’.4 In reality, however, the difference between the two conditions must often have been small, and was indeed sometimes elided, to the extent that when in July 1215 orders were issued for their English warders to transfer a number of Irish hostages into the keeping of others, the king’s directives were entered on the patent roll with the annotation `Deliberacio prisonum’.5  Hostages might even be fettered, to be freed from their chains only when order was given to that effect (this may explain why only one instance has been noticed of a hostage escaping from his confinement – a Welshman named Owen, who was recorded as fleeing from Berkhampstead Castle in 1172).6 Thus the Poitevin nobleman Savaric de Mauléon, captured at Mirebeau in 1202, subsequently became King John’s liegeman, and in 1205 gave hostages for his loyalty, including his nephew Hugh of Germany, who was at first in the custody of the king’s chamberlain Warin FitzGerold.7 In May 1206, however, Hugh was transferred to the keeping of William de Ferrers, earl of Derby, with instructions that he was to be guarded `without irons’, as he presumably was, most conscientiously, for he was only released from William’s keeping eight years later.8

 

2: Precedents and practices

The practice of taking hostages was widespread in medieval Europe, not least as a means of guaranteeing the observance of international treaties. Thus Malcolm IV, king of Scots, underlined his submission to Henry II when in 1163 he not only did homage to the English king at Woodstock but also surrendered a number of hostages, headed by his owns youngest brother, David.9 Twelve years later the terms of the treaty of Falaise, which concluded the Anglo-Scottish hostilities of 1173/4, included a further hand-over of Scottish hostages, again led by David, together with a further twenty nobles, four of them earls, who were all to be released when they had handed over their heirs in their stead (there is no evidence that King Henry insisted on the observance of this part of the treaty).10 When Richard I negotiated his release from German captivity in 1193, his ransom was set at 150,000 marks, of which 100,000 were to be paid before the king’s release; for the rest, 30,000 marks were to be paid to the emperor, who was to receive sixty hostages as sureties for payment, and 20,000 to the duke of Austria, to whom seven hostages were to be handed over.11 When King John entered into an alliance with Renaud de Dammartin, count of Boulogne, in 1212, the count undertook to surrender hostages who were to include his own wife as well as ten of the children of his leading followers; for his part, John agreed (unusually) that if Renaud gave faithful service for a full four years, then the hostages would be returned to him.12 Philip Augustus refused to allow his son to accept the offer of the English throne in 1216 until the rebellious barons provided him with the twenty-four noble hostages he demanded (they were placed in safe custody at Compiègne).13

For a king to take hostages from his own subjects was not unknown but seems usually to have been confined to exceptional circumstances. The aftermath of the great revolt of 1173/4 against Henry II was probably one such; according to Ralph de Diceto, the king was left in possession of 969 knightly prisoners, but he did not exact ransoms from them, preferring instead to release them after either taking hostages or binding them to obedience by oath (fidei sponsione).14 On the whole, however, King Henry does not seem to have taken hostages in England as he did from the countries around, and it is noteworthy that doing so was practically the only misdeed not to be laid to his charge in Ralph Niger’s extended diatribe against him.15 Richard I’s reign saw hostages being taken on a number of occasions, especially in its early years, when the justiciar William de Longchamp reinforced his authority by taking hostages from potential trouble-makers, notably Count John, the king’s brother,16 and Hugh du Puiset, bishop of Durham,17 and also from the men of Lincoln, Stamford and York, all towns where there were outbreaks of violent anti-Jewish rioting in 1190.18 One of the consequences of Longchamp’s ruin late in 1191 was that his own brother, Henry de Longchamp, was taken as a hostage for the fallen minister’s surrender of castles and held for a long time at Cardiff, in prison and in chains, to Gerald of Wales’s intense satisfaction.19 But William’s response to urban violence, at least, was later matched by that of his successor as justiciar, Hubert Walter, who in 1196 forcibly suppressed disorders in London by hanging its leader, William FitzOsbert, and made sure of peace thereafter by taking hostages from a number of the `middling sort’ of citizens and placing them in castles around the country.20

When John came to the throne in 1199, he thus had a variety of precedents for the taking of hostages by the king or his ministers; indeed, he himself had been constrained in this way. Hostages were not, of course, the only method whereby a ruler could enforce the obedience or loyalty of his subjects. Charters are discussed below. Much more commonly used than either hostages or charters were financial pledges – it was conventional practice throughout the reign for crown debtors to find sureties (sometimes in large numbers) who could guarantee the payment of the money owed, while in the second half of John’s reign, in particular, they might have to offer their lands and chattels as pledges as well.21 The dividing line between pledges and hostages could be narrow, however, as can be seen in transactions recorded in 1213, in which Mabel de Clere, successively the widow of the Yorkshire landowner Ralph de Clere and the Northumberland baron Robert Bertram, proffered 500 marks (£333. 6s. 8d.) for the wardship of her son Richard Bertram, and for the dower to which she was entitled from her first marriage. The only pledges she could find were two members of her own family, a younger son and a daughter, and these were inadequate as guarantors, so the sheriff of Northumberland was ordered to take them as hostages instead, to ensure that Mabel paid her fine within the next three years.22

 

3: Setting the tone: hostage-taking in John’s early reign, 1199-1204

Such a case points to a readiness to cross the line separating pledges from hostages (if, indeed, it was perceived as such), and also to take hostages generally, which was to become typical of John’s style of government. He took hostages from the beginning of his reign, and eventually did so on a scale which, even when allowances have been made for the more plentiful evidence supplied by much fuller records, appears to have been without precedent. The need to establish his regime against the background of outbreaks of disorder and a potentially contested succession perhaps helps to explain why in May 1199, within weeks, or even days, of his accession he should have entrusted Pontefract Castle to Roger de Lacy only after taking Roger’s son and heir as a hostage23 (though it is hard to see what grounds he can have had for distrusting Roger, who later conducted a heroic defence of Château Gaillard on John’s behalf). But John’s response to opposition to his 1201 overseas campaign shows that he had begun as he meant to continue, for he demanded that the recalcitrant barons surrender their castles to him, and started with William d’Aubigné’s castle of Belvoir, only giving it back when he had received William’s son as a hostage.24

John’s own personality seems inseparable from such measures. It may be going too far to talk of paranoia, but John’s fear of treachery, noted by Gervase of Canterbury and Ralph of Coggeshall in their accounts of events early in his reign,25 and his attempts to counter it through methods which must often have increased the danger of betrayal, certainly began to characterise his rule from an early stage. Although he had soon displayed his inability to trust his own subjects in England, this aspect of his style of government (`he always feared betrayal by his own men’, in Coggeshall’s words) was at first particularly apparent in Normandy, where his readiness to suspect the trustworthiness of even his greatest subjects is vividly shown by his conduct in April 1203, at a time when the strength of his hold on the duchy, undermined by rumours of the fate of Arthur of Brittany, was coming to seem doubtful. Rumours that the Ranulf, earl of Chester, Fulk Paynel and others were thinking of withdrawing from his allegiance had come to the king’s ears. Ranulf and Fulk at once presented themselves before John at Vire Castle, and succeeded in allaying John’s fears, but Ranulf still had to offer the constable of Normandy, William du Hommet, as a pledge for his loyalty, to which his own lordship over Roger de Lacy, constable of Chester, was added as a further hostage-like security (liberavit ... in obsidem), so that Roger and the entire fief which he held from the earl would pass into the king’s immediate lordship if Ranulf deserted John. Fulk Paynel (who surrendered his son) and four other Norman lords also gave hostages to the king26 – to no avail, as it turned out, since before long all the suspects except Ranulf switched their allegiance to Philip Augustus.

Such methods proved readily transferable to England, as John’s action against William d’Aubigné (and no doubt others) had already shown. He had seized Belvoir Castle and taken a hostage before returning it to its lord. In 1205, at a time of serious tension in the north of England, the Lancastrian baron Roger de Montbegun had to give four hostages before he could be permitted to hold his own castle of Hornby.27 But John took similar precautions when the castles were his own, and the men placed in charge of them appointed by himself. When in 1203 William of Huntingfield was given custody of Dover Castle (probably under Hubert de Burgh), he was obliged to surrender a son and a daughter as hostages, to be detained until he was relieved of his charge.28 Dover was arguably the most important castle in England, and Corfe Castle, Dorset, probably held from around the same time by William de Blundeville, who also had to give a hostage before he took up office as constable,29 was of similar consequence, but no such claims can be made for Whitwick, Leicestershire, where a modest castle (also described as `a house’) came into the king’s hands following the death of Earl Robert of Leicester in October 1204 – when on 10 December following it was entrusted to William de Seneville, he, too, was required to give hostages (his two sons) before assuming responsibility for it.30 For anyone who failed to provide a hostage as demanded, or as pledged, the king’s response was at all times likely to be stern: in March 1205 the sheriff of Essex and Hertfordshire was ordered to take into the king’s hand all the land, and chattels, of Henry de la Pomeroy in his bailiwick, `as he did not surrender his son as a hostage as he promised.’31

It should be kept in mind, however, that hostages were not taken only as an extension of measures intended to enforce political or administrative reliability. In particular they might also be demanded either as additional assurances for the payment of large debts or as guarantees that pledges would be found for their payment. Between 1200 and 1203 the king paid for the maintenance of hostages given by the Devon landowner Hugh de Courtenay for the payment of a debt of 2000 marks (£1333. 6s. 8d.), probably owed for a share of the barony of Bradninch.32 Guy de Vo, who owed large sums from the time he held the royal exchange under Richard I, in 1205 gave his two sons as hostages for his payment of 700 marks (£466. 13s. 4d.), though in the end most of his debt seems to have been written off.33 The king’s henchman Robert de Vieuxpont was appointed to receive the money from Guy. When in 1208 Robert himself fell into disgrace and had to proffer 4000 marks to recover the king’s good will, he gave his nephew as a hostage for his paying this considerable sum (the king’s capricious favour soon pardoned three quarters of the debt, and the nephew was released in March 1209).34 Hugh de Hodingseles and his wife Basilia, who in 1213 agreed to pay the king 500 marks for half the Suffolk barony of Cavendish, had to hand over their two sons as hostages for their finding pledges for paying the money, and also for their clearing their debt within three years.35 The effects in such cases were doubtless much the same as those felt by men and women obliged to give hostages for political or administrative reasons, but their purposes, as recorded, were not the same, and Clause 49 was probably not intended to apply to them.  

 

4: Spreading the net: hostage-taking 1204-1212

King John much more often had recourse to hostage-taking as a means of securing the loyalty of his subjects than of ensuring the payment of their debts, and in either case normally directed it against individuals. But it could also be used against whole communities. In 1208, according to Gervase of Canterbury, his suspicions fell upon the men of the Cinque Ports, with dire results for them – some were hanged, others killed by the sword, many imprisoned in chains, `and at length, having given hostages, they were grievously redeemed for money ...’ – the adverb is confirmed by their recorded fine of 1000 marks to have the king’s benevolence.36 In the same year, moreover, he was described by Roger of Wendover as spreading his net even wider, to target most of the great men of the realm. Fearing that the interdict laid upon England by Innocent III in March 1208 might be followed by harsher measures, including the release of the magnates from their allegiance to him, John sent armed bands to `all the men of power in the realm, and those whom he held in particular suspicion, demanding hostages from them ...’, his intention being to use them as a means to recall to his service any who looked like failing in obedience to himself. Most did as commanded, variously handing over their sons, nephews or near relations, but Matilda de Briouze refused, with dreadful consequences for herself and her family; her reported words, accusing the king of murdering his nephew Arthur, `whom he should have kept in honourable custody’, suggest something of the fears for the safety of hostages which John’s demands for their surrender could arouse.37

The disappearance of the chancery rolls from the years 1208/9-1212 has deprived us of information which might confirm the extent and impact of John’s hostage-taking in 1208. But the surviving sources do at least indicate that hostages continued to be taken, and in much the same way as before. The king himself acknowledged that despite Matilda de Briouze’s resistance, her husband did after all hand over three of his grandsons to him, together with the sons of four retainers (John appears to have taken the grandsons to France with him in 1214),38 while in 1210 Richard de Cumbe, a landowner in south-west England, proffered forty marks, two palfreys and a goshawk, and also undertook to give hostages, in return for being allowed to return to the king’s allegiance and to recover his land `of which he was disseised because he withdrew to William de Briouze in Ireland.’39  Walter de Turberville, a Wiltshire landowner who was charged with a forest offence, having previously fallen into the king’s mercy for apparently failing to produce a man in court, proffered 1000 marks in the same year for the king’s benevolence and to be quit of the charges against him. To guarantee payment of just half this sum he was to hand over his son and two stepsons as hostages, along with all his land, and if he did not meet the prescribed deadline for payment the hostages would face the consequences (incurrent), while the land would become the king’s.40 In the following year Earl Roger Bigod, having successfully proffered 2000 marks for a reduction in the military service he owed to the crown, gave five hostages both for paying his debt `and for his faithful service’.41

As such cases show, King John was prepared to take hostages from his English subjects, to enforce their loyalty or to ensure that they paid their debts, whenever it suited him to do so. Even so, up to this point in his reign it is probably true that it was his subjects in other lands who suffered most in this respect, that he was more likely to take hostages from Irish lords like John de Courcy or Walter de Lacy (William Marshal, who was compelled to give his two oldest sons into the king’s hands, probably comes as least partly into this category), or from a Poitevin magnate like Savaric de Mauléon, whose loyalty after he came into John’s allegiance was retained by no fewer than seventeen hostages, headed by his wife and mother; a list made in 1205 shows that they were placed in socially-distinguished hands but widely distributed geographically, so that while one stayed with the king, three were entrusted to the archbishop of Canterbury, one to the justiciar, one to the bishop of Chichester, and others to magnates and ministers like Roger Bigod, Aubrey de Vere, William de Ferrers, Warin FitzGerold and Simon of Kyme.42 And there they seem mostly to have stayed, for John kept them in his own, or his servants’ hands, until long after Savaric might have been thought to have proved his loyalty ‒ one of them was not handed back until March 1215.43 In 1208 it was the turn of the Welsh, when Gwenwynwyn of Powys was compelled to find twenty hostages for his doing faithful service `in perpetuity’, and given only eight days to produce the first twelve of them.44 And then when John forced an equally humiliating surrender of independence upon the king of Scots in 1209, he similarly reinforced the written treaty by taking hostages, at least thirteen sons and daughters of leading Scottish barons, and placing them in the hands of mostly northern English lords. The value he placed on them is suggested by his order of 13 June 1213, in advance of a planned expedition to France, that all the surviving hostages (one had died) should be brought to him at Portsmouth, presumably so that they should accompany him to Poitou.45

  

5: The 1212 conspiracy and its impact

No campaign took place, and on the evidence of a subsequent order that the earl of Strathearn’s son should be handed back to William d’Aubigné, who had been directed to bring him to Portsmouth, the Scottish hostages were returned to their previous keepers.46 John clearly intended to maintain his grip on the king of Scots, but by this time he was coming under increasing pressure in England, a development which was reflected in his increasing willingness to take hostages from his subjects there. In this respect, as in so many others, the discovery of a conspiracy against his life in mid-August 1212 seems to have marked a turning-point. The effect on John certainly appears to have been cataclysmic, arousing fear and mistrust in equal measure. According to the Waverley annalist, `holding almost all his own men in suspicion, he shut himself up in Nottingham Castle for some time, hiring foreign crossbowmen to protect him ...’.47 The Crowland chronicler likewise recorded the king’s universal distrust, and how he never went out except when armed and surrounded by armed men, arrested many of the men who had previously seemed closest to him, and abruptly seized the castles of earls and barons,48 while Roger of Wendover added that he sent messengers to all the magnates whom he suspected of disloyalty and demanded hostages from them. Most of them responded by surrendering sons, nephews and kinsmen, and so allayed the king’s wrath, but Robert FitzWalter and Eustace de Vescy fled the country.49

Of the demand for hostages, and of the urgency with which it was pressed, there can be no doubt. On 24 August Richard de Umfraville undertook to hand over his castle of Prudhoe within a week, and to deliver the hostages only five days later.50 Two other Northumbrian barons, Roger de Merlay of Morpeth,51 and Robert de Muschamp of Wooler,52 similarly gave their sons as hostages, as did Geoffrey de Say, whose interests lay primarily in Kent but who also had estates at Sawbridgeworth, Hertfordshire, only a few miles from Robert FitzWalter’s castle of Benington.53 FitzWalter’s sister Alice, whose husband Geoffrey Peche died in 1212 as lord of the minor Suffolk barony of Great Bealings, was also obliged to give hostages, including her daughter, another Alice.54 But not only members of the baronage were targeted, and the way in which the widening of the king’s suspicions could cause the effects of hostage-taking to ramify is shown by John’s dealings with a group of FitzWalter’s Essex tenants, probably recorded at around the same time that their lord and his immediate associates were outlawed in January 1213. Nine men and a woman gave hostages, usually one apiece, though William FitzSewal gave two, a son and a daughter. Each hostage was then entrusted to a neighbour, who himself gave a charter to the king, guaranteeing the faithfulness of the hostage-giver `on my body and my land’, and also undertaking to surrender the hostage to the king when called upon to do so.55 Such an arrangement effectively made the keepers of hostages into hostages themselves.

 

6: Charters

The charters referred to here were probably of the kind condemned in Clause 49. Such documents were occasionally referred in earlier dealings between the king and subjects who owed him money or whose loyalty he wished to secure. When for instance the Cumbrian magnate Robert de Vaux came to terms with John in 1211, proffering 2000 marks for the king’s grace and the settlement of his debts, he paid £330 at once and undertook to pay a further 500 marks before he left prison, while before he was released he was to give security `by safe pledges and by charter and by hostages’ for the payment of the rest.56 Here charter and hostages supplemented one another, as they did, but in a different way, in the case of the Hampshire baron Adam de Port, when in May 1212 he acknowledged that the king had at his request returned the hostage he had given, but undertook to surrender him to the king `at his reasonable summons’; Adam set out his obligation in a charter which was to be taken to the exchequer and placed in the treasury.57 In other cases a charter alone was thought sufficient to enforce obedience. It is unfortunate that none of the documents condemned in 1215 appear to have survived. Several earls were compelled to give them in the aftermath of the 1212 conspiracy – the earls of Clare (together with his son), Warenne and Arundel all did so,58 after which the charters (like that given by Adam de Port) were sent to the treasury at Westminster, from which they were doubtless abstracted either after the baronial occupation of London in May 1215 or following the issue of Magna Carta a month later.

The charters given by the Clares were described as being `for their faithful service’, but nothing was said of what might happen if that was not forthcoming. The best evidence for their terms, rather ironically, is probably supplied by the surviving charters given by rebels returning to their allegiance after King John’s death, which show the minority government taking assurances of future loyalty in terms which in all likelihood differed little – except, perhaps, for the more measured tones in which they were set out – from those contained in the charters condemned in 1215. Well-nigh uniform in construction, they consisted of a solemn promise of loyalty to the king and his heirs, and a declaration that the protagonist had placed all his land in surety, so that it would be forfeited in perpetuity if he ever withdrew his fealty.59

Passing references suggest that charters given to John were much the same, and that they also became standardised – in April 1216 the king sent instructions to the sheriff of Norfolk ordering him to receive William de Bosco and his father back into his allegiance, once they had given in `their charter for faithful service in the form which I send you enclosed with these ...’.60 When John de Lacy negotiated his coming into his inheritance in 1213, he conceded that `if he ever withdraws from the service of the lord king and goes over to the lord king’s enemies, all his lands and his tenements are to be forfeited to the lord king ...’,61 and similar undertakings were found in deeds of surrender given to the king after the outbreak of the civil war in the autumn of 1215, though they received additional teeth from a rider spelling out that the loss of lands would be perpetual. When the northern baron Henry de Neville returned to his allegiance in January 1216, for instance, he `gave the lord king his charter for his faithful service, so that if he ever happens to withdraw from his service, all his land will be forfeited, to the perpetual disinheritance of himself and his heirs, and will for ever pass into the possession of the lord king and of his heirs ...’.62 It is easy to see why the barons should have been anxious to recover documents containing such stringent terms, but also why Henry III’s minority government did not carry Clause 49 over into any of the reissues of Magna Carta – for the time being, at least, it needed to be able to take both hostages and charters.

  

Hostages and hostageship

1: The preferred captives

In the last years of John’s reign charters and hostages were increasingly used, sometimes together but more often separately, as means to coerce men and women, and sometimes whole communities, into loyalty and obedience. At all times the preferred hostages were the eldest legitimate sons, and thus the heirs, of those who gave them, and steps were sometimes taken to have their identities checked before they were handed over. At the very beginning of his reign, when informing two of his officers in France that three knights of Maine or Normandy had given named hostages, all of them either their own sons or kinsmen or the sons or kinsmen of tenants, for serving the king, and in particular for waging war against Juhel de Mayenne, John also let it be known that three others of his followers had pledged all the land which they held of him `that the hostages of the aforesaid [three men] are such as are recorded in this writ ...’.63 It was noted in 1201 that a man of Anjou who should have given his son as a hostage had handed over his nephew instead,64 and at the very end of his reign John was still making sure that the hostages he received were indeed the ones he had been promised, in September 1216 instructing Peter de Maulay to receive the son and nephew of the Kentish rebel William de Ros as hostages for his ransom and faithful service – `and be you very sure that they are his son and nephew ...’.65

Identity was important, and so was legitimacy. In 1208 one Amphusus de Till’ or Thilion, identifiable as Don Alfonso Tellez de Meneses, an important figure at the court of King Alfonso VIII of Castile, who had presumably been captured during that king’s intermittent attempts to conquer Gascony in 1204-6, made arrangements for the payment of his ransom to King John, after negotiations which began no later than September 1207.66 Don Alfonso was a wealthy man, with a following which included a number of knights who had been captured with him, and a high price was therefore set upon his freedom. His ransom was fixed at 10,000 marks, and the complicated arrangements for its payment included the stipulation that before he could be released he was to pay 2000 marks and either ten horses, each worth £20 (Spanish horses were highly prized in twelfth- and thirteenth-century England, and in 1215 King John was recorded as owning some),67 or £200 instead of them. As hostages for the remaining 7,700 marks Don Alfonso was to hand over his brother, his son, two daughters and five of his knights as hostages; he was also to give the king assurances that the hostages were `his close kinsfolk and born in wedlock (germani et de matrimonio)’. He must have been able to do so, for he was back in Castile by 5 February 1209,68 but although he seems to have arranged for envoys to go to England to settle the payment of his ransom shortly afterwards, his brother, son and daughters were still in King John’s hands in July 1213.

The case of Alfonso Tellez was not the only one in which women were given as hostages. A list of eight `hostages from Bristol’, entered on the fine roll without explanation in 1205, records two daughters as well as six sons.69 Robert de Vaux secured his release from prison in December 1212 by handing over his mother and sister, along with his son, his bastard brother and a cousin, as hostages,70 and Earl Richard of Clare gave his daughter Matilda, indeed, he appears to have had to hand her over to the king twice. On 21 July 1213 John ordered that she be returned to her father,71 who had doubtless placed her in the king’s hands following the 1212 conspiracy, but then in 1214 Earl Richard was compelled to give her back again, to act together with a charter as a guarantee of his faithful service.72

The fullest light on the sort of hostages regarded as acceptable by the king and his agents is supplied by the entries on the close rolls recording the terms on which former rebels came into the king’s allegiance during the civil war of 1215/16.73 In the case of Gilbert FitzReinfred, who submitted at Berwick on 22 January 1216, they can be supplemented by Gilbert’s own charter.74 As a trusted royal servant who had gone over to the rebels (his son and two of his knights had been captured when Rochester Castle fell to the king’s army) he was treated with exceptional severity. To recover John’s benevolence and grace, and to earn remission of his rancour, he had to proffer a fine of £8000, place two of his castles in the king’s hands, renounce his allegiance both to his baronial allies and to Magna Carta, and accept that if ever again he failed in loyalty all his lands would be forfeited in perpetuity. And as security for his faithful service he was obliged to give ten hostages, all of them the sons or daughters of his knights, two of them related closely in blood to himself. If any of the hostages died, a replacement was to be provided. One of the hostages was named as the eldest son, a further six, whether male or female, were referred to as the heirs, of followers of Gilbert’s, who were thus forced to stake their own lineages on their lord’s future loyalty.

The terms dictated to other rebels who submitted were less drastic in detail but similar in outline. In nearly every case they involved a threefold penalty, comprising a fine, a charter pledging future loyalty, and the surrender of a hostage, occasionally more than one. In the great majority of cases the hostage was a son, occasionally identified as the eldest, once as a younger son. In one case a brother was given, but the king ordered that a son be taken in his place,75 in another a daughter, who was to be held only until her father had surrendered his eldest son instead.76 It was presumably from those who had no sons that daughters were usually taken, as with William de Bayeux, who surrendered his eldest daughter Beatrice,77 and Ralph of Cromwell, a fee-farm tenant in Nottinghamshire, who handed over the eldest of his three daughters.78 When the fine was a large one a second hostage might be taken. Sometimes this was a woman, as in the cases of Hugh Ruffus (£100), who gave up his daughter and his nephew,79 and William FitzRoscelin (200 marks), an influential man in East Anglia, who gave his son and grand-daughter,80 but here too males were preferred. Ralph de Normanville (500 marks and two palfreys) handed over two sons as hostages,81 while Robert of Ruxley (500 marks) surrendered two sons and a nephew.82

 

2: Confinement and custody

When hostages were handed over they were often kept in castles. Many of the major royal castles were used in this way at some point in John’s reign, for instance Gloucester, Salisbury, Corfe, Hereford, Wallingford, Northampton, Kenilworth and Windsor, and so were some of the less important ones, like Orford, Framlingham, Ludgershall and Folkestone. In a number of cases hostages were entrusted to individuals, though these must often have been chosen because they had castles in their charge. The eight hostages provided by John de Courcy in 1205 were variously sent to the sheriff of Cornwall, the constables of Corfe and Dunster (the latter in the king’s hand through a minority), Robert de Vieuxpont (sheriff of Nottinghamshire), Hugh de Neville (keeper of Marlborough Castle) and William Brewer, sheriff of Devon, and so with Exeter and Lydford Castles at his disposal, though he could also have kept his hostage in his own new castle at Bridgwater.83 This may also have been true of the barons whom the king sometimes ordered to take charge of hostages – when in 1207 John ordered that the son of Robert de Ros be temporarily returned to his parents, the boy had already been in the keeping successively of Aubrey de Vere and William d’Aubigné.84 But the bishop of London, to whom a hostage was entrusted in 1204, hardly came into this category – William de Sainte Mère-Église was no doubt chosen to take charge of Oliver Avenel because he was a long-serving royal servant whose loyalty and efficiency could be relied on,85 and the same must also have been true of William of Cornhill, bishop of Coventry, a royal intimate and experienced administrator into whose keeping one of Robert of Ruxley’s hostages was delivered in 1216. It was probably from awareness of John’s outlook and methods that Cornhill provided a written document containing both a receipt for the hostage and an undertaking to surrender him at the king’s pleasure.86

Religious houses were sometimes used to accommodate royal hostages, usually during vacancies when the monasteries involved were in the king’s hands. In November 1214 orders for the release of hostages from the Channel Islands were sent to the prior of Winchester and the abbots of Gloucester, St Albans and Ramsey87 (hostages were also recorded at Ramsey in 1211 and 1212),88 and a year later the prior of Glastonbury was among those instructed to send hostages to the justiciar of Ireland.89 One of the hostages for Savaric de Mauléon came to be entrusted to the abbot of Muchelney.90 Even nunneries might be pressed into service in this way. In 1211 two hostages for the mercenary captain, pirate and alleged sorcerer Eustace the Monk were recorded as being held in the Tower of London.91 Eustace had entered King John’s service in 1205, and when he deserted him for the French in 1212, the English king clearly held on to the hostages, for one of them, described as Eustace’s daughter, was subsequently parked upon Wilton Abbey. If she was anything like her father, the order for her release, issued on 21 June 1215, must have come as a great relief to the sisters.92

At the highest level of lay society, even the queen might be given custody of a hostage. King John could probably have cited a precedent for this in his father’s reign – £28 were spent on the maintenance of Queen Margaret, the wife of Henry the Young King, `and hostages’ at Devizes in 1174, following the great revolt against Henry II.93 Two of the sons of Richard de Umfraville were sent to Queen Isabella in 1212,94 while in 1215, when she was probably at Berkhampstead, she had John de Lacy’s brother Roger in her keeping as a hostage.95 But hostages of inferior rank were placed in less exalted hands, including those of townsmen. In 1210 ten hostages of unknown origins were sent from Bristol to Lynn,96 while in March 1215 the king ordered the release of hostages given by the men of Dunwich (perhaps in connection to their undertaking to keep the sea recorded in the previous September) who had been entrusted to the citizens of London.97 Hostages from the Channel Isles, possibly taken following the recovery of the islands after their brief occupation by the French in 1204-5, could also be placed in the custody of English townsmen. On 2 November 1214 the king announced that he was releasing his hostages from Jersey and Guernsey as the reward for their loyalty and good service.98 Most of the individual orders for the implementation of this favour were sent to officials and monasteries, but one was directed to the mayor and townsmen of Winchester, and later writs show that the burgesses of Northampton, too, had been made responsible for at least one man from Guernsey,99 while the mayors and townsmen of Norwich and Ipswich had hostages from Sark in their keeping.100 Urban communities might also be required to give hostages. Dunwich did so, as noted above, and during the civil war both York and Grimsby did likewise – in March 1216 nineteen citizens of York were handed over as hostages to Brian de Lisle,101 while the townsmen of Grimsby surrendered four hostages as sureties for the fine of 100 marks and two palfreys which they had recently made with the king.102

 

3: Treatment and mistreatment

Hostages might die while they were in custody. When William the Lion, king of Scots, submitted to King John at Norham in 1209, a number of Scottish magnates gave their children as hostages for the observance of the treaty, among them Alan, lord of Galloway, who handed over a daughter – her death, while she was in the keeping of Robert FitzRoger, lord of Warkworth, was reported in 1213.103 King John seems to have been suspicious over several years of John of Monmouth, a powerful baron in the Welsh marches, and at various times held three of his sons as hostages. In August 1213 one of them, William, fell seriously ill, and the sheriff of Gloucestershire was ordered to hand him over to his father, but not before the king had received guarantees that William would be given back when demanded, `unless he dies first’.104 The possibility that hostages would die, or suffer grievous injury, was in any case inseparable from their condition, one that was always precarious and could become dangerous. A story told by Orderic Vitalis of Henry I, that in 1119 he allowed vengeance for the blinding of a hostage to be taken on two of his own grand-daughters, who were likewise being held hostage, so that the girls’ eyes were put out and the ends of their noses cut off, has been pronounced incredible by one modern historian,105 but the possibility that such measures would be taken was real. The pleasant details and happy outcome of the tale of the five-year-old William Marshal’s escape from death in 1152, after he had been handed over by his father as a hostage for the surrender of Newbury Castle and then placed in great peril when the fortress was reinforced, can too easily conceal how endangered the boy’s life had been.106

In 1194, according to Roger of Howden, the duke of Austria threatened the lives of the hostages (capitalem subirent sententiam) given to him by Richard I for the fulfillment of the agreement under which Richard had obtained his release from the duke’s captivity.107 For the chronicler this was further proof of Leopold’s wickedness, and an additional justification for his miserable death at the end of that year. By the end of the twelfth century the chivalric ethos which increasingly permeated the upper reaches of aristocratic society in western Christendom seems to have made it increasingly unfashionable to harm hostages, and even, in some quarters, to take them – in 1207 William Marshal himself, when advised to take hostages from his own men for their continuing allegiance, indignantly rejected the suggestion as shameful.108

No such inhibitions, however, were felt among ‒ and as far as the English were concerned, probably also towards ‒ the people of Scotland, Wales and Ireland.109 The ferocious violence which underlay political rivalries in those lands, where hostages continued to be killed or mutilated – in 1170, for instance, Ruaidri Ua Conchobair (Rory O’Connor), high-king of Ireland, slew a number of hostages taken from his arch-rival Diarmait Mac Murchada, king of Leinster, including a son and grandson of Diarmait’s,110 while in about 1201 William the Lion, king of Scots, ordered the blinding and castration of the son and heir of the earl of Orkney, previously handed over as a hostage by his father111 – may have been regarded as justifying English kings in treating the hostages handed over to them by Celtic rulers with a similar brutality. Henry II, enraged by the failure of his Welsh expedition of 1165, mutilated a number of hostages of both sexes;112 that one of the victims, a son of Rhys of Deheubarth, survived until 1239 as a Cistercian monk at Whitland is a clear pointer to his youth when his eyes were put out.113 King John had at least four Welsh hostages mutilated in 1211 (two of them died as a result),114 and a year later, faced with a major Welsh revolt, he ordered the hanging at Nottingham of the hostages who had been handed over to him twelve months earlier – twenty-eight of them in one account, thirty-two in another.115 No doubt it was as an extension of this savagery that in the same year Robert de Vieuxpont, the king’s lieutenant in Powys, `hanged at Shrewsbury Rhys ap Maelgwn, an excellent boy not yet seven years old, who was a hostage with the king ...’.116

In 1199 Aubrey de Curtun proffered £40 `for redeeming the members of his son’, who had stood hostage for Gilbert de Angulo, an important landowner in Meath in central Ireland.117 Five years later, on 1 September 1204, the barons of Ulster were ordered to cause their rebellious lord, John de Courcy, to appear before the king, and reminded that they had sworn oaths and given hostages to make him do so; this they were to do `as you love the same hostages and your fees, knowing that if he has not come into our service within the term assigned to him for this by our justiciar, we will betake ourselves to your hostages and to your fees.’118 Such implicit threats of physical violence to hostages seem unexpected in the context of Irish `settler’ society, whose members doubtless saw themselves as entitled to be spared the sort of treatment that could be meted out to (and also by) the native Irish. It is possible that John, the first English king to bear the title `lord of Ireland’, regarded himself as freed from the usual constraints of aristocratic conduct when he was dealing with Irish barons. And even if King John did not consciously imitate the native rulers, the fact that there were societies upon or close to the borders of England, in which violence to the lives and limbs of hostages remained a genuine possibility, may well have coloured the light in which such living pledges were seen by those who were compelled to give them, creating a kind of frisson about hostages which resulted in their being regarded as in greater danger than they truly were – a feeling which could, of course, have worked to the advantage of the king or any other lord who held them.

That does not mean, of course, that hostages were invariably protected against every kind of ill-usage and misfortune. The recorded response of Matilda de Briouze to the demand that her husband should give hostages to the king in 1207 shows that their future well-being was not regarded as something that could be taken for granted, and this was confirmed in 1210, when King John, in one of his many spasms of suspicion towards William Marshal, demanded hostages from him, and when five retainers were handed over, had them kept under guard in five different locations.119 Walter Purcel (a future seneschal of Leinster)120 was well looked after by Peter FitzHerbert, a staunch royalist but also a friend of the Marshal’s, but John of Earley, entrusted to Philip Marc at Nottingham, `suffered much hardship and tribulation’, while the fate of Geoffrey FitzRobert at Hereford, in the hands of Engelard de Cigogné, was even worse – `he took ill ... and never came out of the prison alive ...’. Perhaps Geoffrey succumbed to some kind of gaol fever, but the mistreatment of hostages could be deliberate. In September 1218, shortly after the end of the civil war, the papal legate Guala wrote to William Marshal demanding that he take action to secure the release of the men of the Cinque Ports who had earlier been handed over as hostages to Prince Louis. Ignoring the negotiated peace-terms, Louis was keeping these men in prison, where some of them had died as a result of their close confinement and lack of food, while others, according to the legate, were so worn down `by pains and afflictions’ that their lives were despaired of.121

 

4: Maintenance

Perhaps the relative social insignificance of men from English ports denied them the sort of consideration due to men and women of higher rank when the latter were obliged to act as hostages. If they were thought valuable enough, or were simply fortunate, they might be maintained at the king’s expense, receiving food and clothing from him, or small amounts of money; in 1212 a group of Irish and Spanish hostages received ½d. a day for their maintenance in Knaresborough Castle,122 while in 1168 the upkeep of some presumably very young Welsh hostages had included payments to their nanny, or possibly even their wet-nurse (nutrix).123 Other hostages may have had to work for their upkeep, at any rate up to a point. In the Treaty of Windsor negotiated between Henry II and the Irish high-king Ruaidri Ua Conchobair in 1175, the latter undertook to give hostages who would then be set to look after the English king’s dogs and horses, this being presumably regarded as a fitting employment for them.124 When the Northumbrian baron Richard de Umfraville, suspected of involvement in the 1212 conspiracy against the life of King John, handed over two of his sons as hostages for their father’s loyalty, the king sent them to his henchmen with instructions that they were to serve before the queen at dinner and sleep in the hall at night.125 They were to be accompanied by a master, suggesting that as well as making them do something useful while they were in his custody, John intended the boys to learn good manners along with their letters. He may have had similar plans for Robert, a younger son of Robert de Ros, another Northumbrian magnate, who seems to have been handed over to the king as the hostage for his father’s payment of a £200 debt. The debt was pardoned, and at the end of 1207 Robert junior was sent back to his parents, but with instructions that he was to be returned to the king at Easter – perhaps John wanted him to serve at court as a page when the great feast was celebrated, and in any case intended to keep his grip on his hostage.126

There is also evidence for hostages being maintained at the cost of the person who gave them. In 1212 a letter from King John to William Marshal concerning the latter’s eldest son, another William, then in the king’s hands as a hostage, referred to John’s expectations that the Marshal would reimburse him for his expenditure on the young man,127 and a lawsuit concluded some ten years later refers to the same practice.128 In Michaelmas term 1220 Falkes de Bréauté sued Roger le Manaunt in the Bench for 100 marks, a debt for whose payment Roger had handed over his daughter as a hostage to Falkes, who in addition now claimed the cost of the daughter’s maintenance, at the rate of 12d. a day. A landowner in Essex and Suffolk, Roger was probably a tenant of the Mandevilles in the former county, and had been a rebel against King John at the end of the latter’s reign.129 In all likelihood he was captured by Falkes during the civil war and forced to agree to a 100-mark ransom, giving his daughter as hostage for his release so that he could go away and raise the money. He claimed that he had collected and paid the first twenty-five marks, but that Falkes had not given his daughter back, and so he had refused to pay any more, though he would willingly do so, `if he could have his hostage’. Several adjournments followed, before Falkes notified the court in Hilary term 1223 that Roger had paid his debt in full, a total of 120 marks (£80), suggesting that the upkeep of his hostage had cost her father an additional £13. 6s. 8d.130 (At 12d. a day such a sum would only have covered the girl’s maintenance for about nine months; Falkes’s charges were, indeed, inordinately high, and the sum Roger eventually paid probably represented a negotiated, and more moderate, bill.)

The court record is silent on the fate of Roger’s daughter, but presumably she was returned to her father.131 Not all hostages were looked after in this way, however, even if they were held by the king. It was obviously in a hostage-taker’s interest to keep his charge alive, but some hostages may nonetheless have had to resort to uncomfortable shifts in order to feed and clothe themselves. The different possibilities are brought out by an order which John sent to the sheriff of Gloucestershire in 1214, telling him that if he had spent any money on the Welsh hostages whose release his illegitimate daughter Joan had just obtained, then he was to recover his outlay from them, but `if they have lived from charity (ex elemosina) we wish that they be quit’132 – the king’s expenditure was to be reimbursed, but money given in charity to these unfortunates was not to be taken back from them.

 

5: Release

The circumstances in which hostages were released varied. For the very fortunate, external intercession, by someone as influential as the king’s daughter, might bring a hostage his or her freedom. In other cases a payment could have the same effect. When Baldwin Wake, lord of Bourne, Lincolnshire, entered into his inheritance in 1204, the sheriff was ordered to take four hostages from him before giving him seisin of his lands. There was to have been a fifth, but Hugh of Boothby (a former sheriff of the county) proffered 100 marks `as he wished to release his son from being a hostage for his lord ...’.133 John frequently took hostages as a way of exercising control over Irish affairs. Late in the reign one Adam de Capella successfully proffered forty marks to obtain his own release and to have another man taken as hostage in his place.134 Roger de Tuit, a member of a prominent Anglo-Irish family who had been held hostage for his brother Richard, in February 1215 gave only twenty marks for his freedom, but in circumstances under which it seems reasonable to feel that he should have had it for nothing – Richard was dead.135 Roger was also required to find pledges for his paying the money, and his keeper was ordered not to release him until they had sent letters patent guaranteeing both the payment and Roger’s faithful service. The exploitation of the vulnerability of a hostage, and the way his status could be used to draw others (in this case Walter de Lacy and the prior of Llanthony Secunda) into a network of control could hardly be more clearly illustrated.

In 1211 Earl David of Huntingdon was recorded as owing two fine Norwegian falcons for having the custody of his son John, a hostage (no doubt for the Scottish king, under the Treaty of Norham).136 This may have been an example of an arrangement, recorded in more detail elsewhere, under which hostages were returned to those who had given them, after the latter had undertaken to surrender them again if called upon to do so. The beneficiaries were of various kinds. Robert de la Saucei was a former sheriff of Northamptonshire who left office owing the king 100 marks, a palfrey and a hawk.137 Having at some point given John two hostages, presumably for payment of this debt, in October 1213 he was himself granted the custody of one of them, while the other, at Robert’s request, was entrusted to the justice Simon of Pattishall, a Northamptonshire landowner and perhaps also a friend. Both were `to be surrendered to us at our summons ...’.138 But others were potential or actual adversaries of the king. Robert de Muschamp, lord of Wooler, gave two of his sons as hostages to King John, almost certainly after the 1212 conspiracy. The king entrusted them to Philip of Oldcoates, the sheriff of Northumberland, but on 20 November 1213 instructed Oldcoates to return them to Muschamp, and sent him instead the bond whereby Muschamp undertook to surrender his sons upon the king’s command. Oldcoates was also to take an oath from the sons that should their father fail in loyalty to the king, they were to present themselves before the king and become his hostages as before – fear of the possible consequences for them was presumably intended to recall Muschamp to his obedience.139 A similar scenario probably lay behind the order sent to another Northumberland baron, Gilbert de Laval, lord of Callerton, in March 1215, that he should surrender to Oldcoates `the hostages for yourself whom you delivered to us and we afterwards committed to you ...’.140

 

Clause 49

1: Enforcement

There were undoubtedly circumstances in which contemporary opinion regarded hostage-taking as an acceptable practice, and it is noteworthy that Clause 49 did not attempt to forbid it. No less an authority than Stephen Langton declared in one of his sermons that `If a king has some great princes in his kingdom, who are suspected of possible rebellion, he should demand hostages of them, lest they ever desert his cause, and they should hand over their sons’.141 But John’s taking of hostages went far beyond the limits seemingly envisaged by Langton, in terms of both rank and numbers, so much so that there were times in the later years of his reign when it must have seemed as if he had no subjects of any consequence who had not either given hostages, or become hostages themselves, or been made in some way responsible for the keeping of hostages, and who were not therefore caught up in the chains of obligation, strengthened by fear, which were created by such means. The king’s habitual distrustfulness, his almost total inability to govern without resort to coercion and threats, led to his taking hostages on a scale which created webs of constraint and menace extending into every part of the kingdom. Practices which generated so much anxiety and resentment were bound to be highly damaging to his rule, but perhaps John had become incapable of governing in any other way. On 17 May 1215, the same day on which London fell to the rebels, he wrote to Geoffrey de Martigny, the keeper of Northampton Castle, ordering him `to allow all those who were against us with our enemies, and who have wished to return to our fealty and service, to return safely to us, having accepted, however, security from them for doing us good and faithful service.’142 The studied moderation of the king’s command was belied by its demand for an undefined security, and it is not surprising that less than a month later Clause 49 demanded the instant surrender of all the hostages and charters which the king had taken.

According to the Crowland chronicler John complied at once (in continenti),143 and the chancery records provide at least partial confirmation of this. In letters patent sent on 18 June to Stephen Haringod, the constable of Colchester Castle (and presumably to other keepers of castles as well), he ordered that hostages and prisoners taken recently, after the beginning of hostilities (`occasione huius guerre’), should be released without delay,144 and soon afterwards he gave directions for the release of a small number of other, named, hostages. In at least one case these, too, must have been taken only very recently – on 24 June the constable of Northampton was told to release all the hostages and prisoners of that town whom he held, clearly seized in response to the rioting against the castle garrison which erupted in the aftermath of the baronial capture of London.145 But the hostages whose release was ordered on 19 June had probably been held for longer, much longer in some cases.146 Earl David’s hostages may well have been handed over as long ago as 1209, while John le Vicomte, lord of the Northumberland barony of Embleton, who had given two hostages, seems likely to have become yet another object of royal suspicion at the time of the 1212 conspiracy. The son of Roald FitzAlan, constable of Richmond, may have been taken at the same time and for the same reason, but Roger de Lacy was probably a hostage less for the loyalty of his brother John, the constable of Chester, than for the substantial fine which John agreed to pay for his inheritance in 1213 (in July 1214, when Roger was already in custody, he was made a hostage for his brother’s holding Castle Donington to King John’s advantage147 – it had earlier been handed over as a pledge for John de Lacy’s payment of his fine, but was now returned to him).

A number of freed hostages were Irish, or given by Irish lords, and perhaps their status under Clause 49 was unclear, since its application was limited to hostages given by Englishmen. The king may nonetheless have been pleased to use it for the benefit of a follower of his own, when on 21 June he ordered the earl of Winchester to release David, the son of Philip of Prendergast, to the archbishop of Dublin.148 Philip was a retainer of William Marshal’s whom John had won over to his side in 1207/8 but who had then been involved in the defeat of the royalists by the Marshal’s retainers. They forced him to give his son as a hostage for his future good behaviour and sent him to England (that son had been Gerald; Philip secured his release in November 1214, but only by surrendering David in his place).149

On 10 July 1215 John issued letters patent acknowledging that on the previous day he had received Gilbert, son and heir of Walter de Lacy, and hostage for his father, at Ludgershall.150 The announcement was not, however, the prelude to Gilbert’s release. Walter was a magnate on both sides of the Irish Sea, lord of Meath in Ireland, of Weobley, Ludlow and much else in the Welsh marches.151 His relations with John were usually uneasy (he had had six hostages in John’s hands early in 1204, at least two of whom were still in the king’s keeping four years later),152 while from 1209 they became overtly hostile, through the support he gave to his son-in-law, William de Briouze, in the latter’s dealings with the king. In 1213, however, the ambitions of Llywelyn ab Iorwerth of Gwynedd, and his alliance with dissident English barons, prompted a reconciliation between King John and Walter de Lacy, but their settlement, drawn up on 29 July, was made on unequal terms (like all those entered into by John), and Lacy was obliged to give at least four more hostages.153 Gilbert was not one of them, and it is not known when he was handed over, only that he was in the king’s keeping by the summer of 1215 and stayed there. In early August 1215 Walter de Lacy agreed to pay 4000 marks to recover his Irish lands, and to find pledges for the payment of the money, while his son was to remain in the king’s hands, `as a hostage for his faithful service’, until his father’s fine was paid.154 Gilbert was then to be returned to his father, but any further hostage whom John wanted to have from Walter was to be handed over, and the king made it clear that he had in mind a son or daughter yet to be born to Walter’s wife, apparently regardless of his or her age. The six hostages whom the sheriff of Herefordshire was ordered to release to Walter on 2 August were presumably men of less importance in their recipient’s eyes.155

 

2: Relapse and oblivion

Although John may have felt that Walter de Lacy was excluded by his Irish associations from the benefits of Clause 49, it seems just as likely that his now making provision to keep Walter’s son as a hostage, together with his reserving the right to take another should he wish, constituted just one more sign among many that he had no intention of observing Magna Carta as a whole. The terms of his order of 2 August pointed in the same direction, since he made it clear that there were other hostages in Hereford Castle who were destined to remain there (those to be freed were just sex obsides illorum qui sunt in castro nostro de Hereford’). It is possible that there were unrecorded occasions on which hostages were freed, but the very nature of John’s rule, infused as it was with his own mistrustful personality, argues that it was in the breach, rather than the observance, that Clause 49 was most often observed. The sheer scale of John’s hostage-taking during the last months of his reign, once civil war had broken out, points in the same direction,156 suggesting yet again that he saw obedience to his rule as something which could never be effected by persuasion but only by force, or by the threat of it, and that he regarded hostages and charters as indispensable agencies of government, taking them in cases either where they were probably unnecessary – as when on 2 December 1215 he allowed Hugh de Loges to have custody of Cannock Forest (his hereditary right), and of the insignificant castle of Rodbaston which went with it, only after Hugh had given `good hostages for his faithful service’157 – or where their seizure only underlined the impulses to violence and mistrust which underlay such measures. It is probably significant that when in April 1216 John tried another strategy, and let it be known that he no longer wanted security in the form of money from his adversaries, but only their undertaking to do him good and faithful service, his new approach had no discernible effect – the rebels simply did not believe him.

John’s dealings with some of the rebels who did submit help to explain this. On 19 August 1216 he gave orders to his illegitimate son Richard concerning William of Hastings, an important landowner in the midlands.158 In April the king had commanded that William’s estates should be comprehensively devastated,159 but now he had returned to his allegiance, and so the sheriff of Oxfordshire was directed to return his hostage to him, while Richard was instructed to maintain and protect him, not allowing any injury to be done to him. These fair words did not, however, prevent Richard’s being ordered to take good care of another hostage (in fact the brother of the first) whom William had given, or the sheriff of Oxfordshire being told to receive a charter and `safe pledges for doing us faithful service’ from William, as well as giving him possession of a knight’s fee forfeited by two of his tenants. Forced into obedience through his having given a hostage, a charter and pledges, the erstwhile rebel cannot have felt much less under constraint than he did before.

The same grudging relief was given to Roger of Lenham, a landowner in Kent, East Anglia and Berkshire who was certainly a rebel by mid-October 1215 and may have been captured at the fall of Rochester Castle.160 Letters dated 26 August (probably misdated, and somewhat garbled in its content) and 1 October 1216 together show Peter de Maulay, as constable of Corfe Castle probably Roger’s gaoler, being informed that his captive had made fine by 500 marks for his release, and had undertaken to pay half that sum by 15 August.161 He had paid 214 marks by the end of September, and Peter was told that he could be released (`extracted from prison’ in the words of the first letter, `his prison alleviated’ according to the second) when he had paid a further thirty-six marks. But first he had to provide security, both `by good hostages for his faithful service’, and also `by his charter’ for paying the remaining 250 marks (which were subsequently assigned, and paid, to Walter de Lacy). Domination, rather than reconciliation, remained King John’s principal objective, though in Lenham’s case he clearly achieve neither, since Roger rebelled again, and did not return to the king’s allegiance until November 1217.162

Clause 49 had no equivalent in any of the re-issues of Magna Carta. In the crisis which followed the death of King John, the minority government of his son found charters and hostages (and especially the former) to be as useful as the late king had done as means of attaching actual or potential rebels to its cause. But they were never taken to the same extent,163 and as the new regime became established it felt increasingly able to dispense with them. In the years of his adult rule, Henry III only once demanded hostages from his subjects, when in 1233 a number of marcher barons gave them as pledges for their faithful service, and that may have been primarily the responsibility of the `Poitevin’ ministers, ex-servants of King John, who then largely controlled the central government.164 It was Simon de Montfort, not the king, who took hostages during the Barons’ Wars, and since they were the eldest sons of the king and the earl of Cornwall, their status was such as to deprive threats to their lives and limbs of any plausibility – `even Montfort, never a man for half measures though he was, might have baulked at hanging the heir to the throne ...’.165 Whether or not Clause 49 was responsible, hostage-taking effectively ceased to be an instrument of English government in the early decades of the thirteenth century, and died out completely in the course of it.

 

1

D. Crouch, William Marshal: knighthood, war and chivalry, 1147-1219 (2nd edn., 2002), 107-8, 111-12.

2

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 83, 87.

3

See A.J. Kosto, Hostages in the middle ages (Oxford, 2012), esp. 9-11, for useful comments.

4

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 96.

5

Ib., 147-8.

6

PR 18 Henry II (1172), 46.

7

Rot.Lit.Pat., 55.

8

Rot.Lit.Claus. i, 71, 173 (the latter notice was cancelled, so Hugh may after all have remained in the earl’s keeping).

9

A.C. Lawrie (ed.), Annals of the reigns of Malcolm and William, kings of Scotland, A.D. 1153-1214 (Glasgow, 1910), 73 (citing Robert of Torigni).

10

W. Stubbs (ed.), Chronica Magistri Rogeri de Houedene, 4 vols. (Rolls Series, 1868-71), ii, 81; A.A.M. Duncan, Scotland: the making of the kingdom (Edinburgh, 1978), 230-1.

11

Chronica Magistri Rogeri de Houedene iii, 216.

12

T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 186, 189.

13

H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum, 3 vols. (Rolls Series, 1886-9), ii, 173; H.R. Luard (ed.), Annales monastici, 5 vols. (Rolls Series, 1864-9), iii (Annals of Dunstable), 45.

14

W. Stubbs (ed.), Radulfi de Diceto decani Lundoniensis opera historica, 2 vols. (Rolls Series, 1876), i, 395.

15

R. Anstruther (ed.), Radulfi Nigri Chronica: the chronicles of Ralph Niger, Caxton Society 13 (1851), 167-9.

16

PR 3 & 4 Richard I (1191-2), 60.

17

W. Stubbs (ed.), Gesta Regis Henrici Secundi Benedicti Abbatis, 2 vols. (Rolls Series, 1867), ii, 109.

18

PR 2 Richard I (1190), 26; PR 5 Richard I (1193), 72.

19

J.S. Brewer (ed.), Giraldi Cambrensis opera iv (Rolls Series, 1873), 407.

20

Radulfi de Diceto ... opera historica ii, 143-4.

21

Such pledges are discussed in the commentary on Clause 9.

22

Ib., 478

23

Chronica Magistri Rogeri de Houedene iv, 91-2.

24

Ib., 161.

25

W. Stubbs (ed.), The historical works of Gervase of Canterbury, 2 vols. (Rolls Series, 1879-80), ii, 95; J. Stevenson (ed.), Radulphi de Coggeshall Chronicon Anglicanum (Rolls Series, 1875), 144.

26

Rot.Lit.Pat., 29.  I am grateful to Paul Brand for assistance in interpreting these transactions.

27

Rot.Ob.Fin., 275.

28

Rot.Lit.Pat., 34.

29

Ib., 46.

30

Ib., 48; Rot.Ob.Fin., 226.

31

Rot.Lit.Claus. i, 25.

32

Rot.Ob.Fin., 69; PR 3 John (1201), 215; PR 4 John (1202), 244; PR 5 John (1203), 71.  For the background see S. Painter, The reign of King John (Baltimore, 1949), 38-9.

33

Rot.Ob.Fin., 290; Rot.Lit.Pat., 51, 59; PR 9 Richard I (1197), 167; PR 10 Richard I (1198), 171-2; PR 4 John (1202), 289; PR 6 John (1204), 97.

34

Rot.Lit.Pat., 88; Rot.Chart., 184.

35

Rot.Ob.Fin., 507; PR 16 John (1214), 113.

36

Historical works of Gervase of Canterbury, ii, 101-2; PR 10 John (1202), 72.

37

Rogeri de Wendover ... flores historiarum, ii, 48-9.

38

T. Rymer (ed.), Foedera I:i (1745), 52; Rot.Lit.Claus. i, 168.

39

PR 12 John (1210), 74.

40

Ib., 88.

41

PR 13 John (1211), 2.

42

Rot.Ob.Fin., 55.

43

Rot.Lit.Pat., 131.  It is not known when his mother and wife were retuned to Savaric.

44

Rymer, Foedera I;i, 48.

45

Rot.Lit.Claus. i, 137.

46

Rot.Lit.Pat., 104.

47

Luard, Annales monastici ii, 268.

48

W. Stubbs (ed.), Memoriale Walteri de Coventria, 2 vols (Rolls Series, 1872-3), ii, 206-7.

49

Rogeri de Wendover ... flores historiarum, ii, 61-2.

50

Rot.Lit.Claus. i, 122.

51

Rot.Lit.Pat., 99.

52

Ib., 106.

53

Rot.Lit.Claus. i, 124.  For Sawbridgeworth see J.C. Holt, Colonial England, 1066-1215 (1997), 316.

54

Rot.Lit.Pat., 101.  For the family see I.J. Sanders, English baronies: a study of their origin and descent, 1086-1307 (Oxford, 1960), 48.

55

Rot.Chart., 192; identified as FitzWalter’s tenants from Liber feodorum.  The book of fees commonly called Testa de Nevill, 2 vols. in 3 (1920-31), i, 576-9.

56

PR 13 John (1211), 157.

57

Rot.Chart., 191.

58

Ib., 192, 197.

59

TNA:PRO, C 47/34/8.

60

Rot.Lit.Claus. i, 258.

61

Rot.Ob.Fin., 494-5.

62

Ib., 572-3.

63

Rot.Chart., 9.

64

Rot.Ob.Fin., 192.

65

Rot.Lit.Pat., 197.

66

For the ransom see Ib., 75, 82-3, 89, 102; for Don Alfonso, J. Gonzalez, El reino de Castilla en la epoca de Alfonso VIII, 3 vols., Consejo superior de investigaciones cientificas, escuela de estudios medievales (Madrid, 1960), i, 349-51.  The war in Gascony is discussed by Gonzalez, i, 867-75, and Y. Renouard (ed.), Bordeaux sous les rois d’Angleterre (Bordeaux, 1965), 24-6.  

67

R.H.C. Davis, The medieval warhorse (1989), 84-5.

68

Gonzalez, iii, 467-9.

69

Rot.Ob.Fin., 274.

70

Rot.Lit.Pat., 96.

71

Ib., 101.

72

Rot.Chart., 197.

73

For what follows see also Holt, Colonial England, 233-4.

74

Rot.Ob.Fin, 570-1; Rot.Chart., 221.

75

Rot.Lit.Claus. i, 284.

76

Rot.Ob.Fin., 571.

77

Ib., 580.

78

Ib., 581.

79

Ib., 587-8.

80

Ib., 589.

81

Ib., 576-7.

82

Ib., 596-7.

83

Rot.Lit.Pat., 55.  For Bridgwater Castle see R.V. Turner, Men raised from the dust: administrative service and upward mobility in Angevin England (Philadelphia, 1988), 80.

84

Rot.Lit.Pat., 59 (this case is discussed further below).

85

Ib., 46.

86

Rot.Lit.Claus. i, 291.

87

Rot.Lit.Pat., 122.

88

PR 13 John (1211), 270; PR 14 John (1212), 6.

89

Rot.Lit.Pat., 147-8.

90

Ib., 132.

91

PR 13 John (1211), 109.

92

Rot.Lit.Pat., 144.

93

PR 20 Henry II (1174), 21.

94

Rot.Lit.Claus. i, 123.

95

Rot.Lit.Pat., 143.

96

PR 12 John (1210), 111.

97

Rot.Lit.Pat., 129; Rot.Lit.Claus. i, 211.

98

Rot.Lit.Pat., 122.

99

Ib., 129.

100

Ib., 131.

101

Rot.Lit.Claus. i, 269.

102

Rot.Lit.Pat., 168.

103

Rot.Lit.Claus. i, 137.

104

Rot.Lit.Pat., 103.

105

C.W. Hollister, Henry I (Yale, 2001), 253-4.

106

Crouch, William Marshal, 19-21.

107

Chronica Magistri Rogeri de Houedene iii, 275.

108

Kosto, Hostages in the middle ages, 208.

109

Cf. the comments of J. Gillingham, The English in the twelfth century: imperialism, national identity and political values (Woodbridge, 2000), esp. 53-5, 225-6.

110

M.T. Flanagan, `Mac Murchada, Diarmait (c. 1110-1171), Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/17697, accessed 13 July 2015].

111

Lawrie, Annals of the reigns of Malcolm and William, 305-9.

112

J. William ab Ithel (ed.), Annales Cambriae (Rolls Series, 1860), 50; T. Jones (ed.), Brut y Tywysogyon, or The chronicles of the princes: Peniarth MS 20 version, University of Wales Board of Celtic Studies, History and law series xi (Cardiff, 1952), 63-4.

113

R.R. Davies, The age of conquest: Wales, 1063-1415 (Oxford, 1991), 225.

114

Luard, Annales monastici i, 31 (Annals of Margam).

115

Rogeri de Wendover ... flores historiarum ii, 61; Luard, Annales monastici i, 31 (Annals of Margam).

116

Jones, Brut y Tywysogyon, 85-6.

117

Rot.Ob.Fin., 28.

118

Rot.Lit.Pat., 45.

119

A.J. Holden (ed.), History of William Marshal, trans. S. Gregory, historical notes by D. Crouch, Anglo-Norman Text Society occasional publication series 4-6, 3 vols. (2002-6), ii, 222-5.

120

Rot.Lit.Claus. i, 390.

121

N. Vincent (ed.), The letters and charters of Cardinal Guala Bicchieri, papal legate in England, 1216-1218, Canterbury and York Society 83 (1996) no. 133 (p. 96).

122

PR 14 John (1212), 169.

123

PR 14 Henry II (1168), 110.

124

Chronica Magistri Rogeri de Houedene ii, 85.

125

Rot.Lit.Claus. i, 123.

126

Ib., 99.  For the debt see Rot.Ob.Fin., 419,  PR 9 John (1207), 72.

127

Rot.Lit.Claus. i, 132.

128

Curia Regis Rolls ix, 4-5 Henry III, 1220  (1952), 226

129

Rot.Lit.Claus. i, 332-3.

130

Curia Regis Rolls xi, 7-9 Henry III, 1223-1224 (1955), no. 30 (p. 5).

131

She could have been either Joan la Manaunte or Alice la Manante, both recorded in 1235/6, the former as a subtenant of Maud de Mandeville, countess of Essex, the latter as holding of the barony of Cavendish, Suffolk – Book of fees i, 481, 483.

132

Rot.Lit.Claus. i, 181.

133

Ib., 6; PR 6 John (1204), 78.

134

Rot.Lit.Claus. i, 186; Rot.Ob.Fin., 564.

135

Rot.Lit.Claus. i, 186; Rot.Lit.Pat., 128.

136

PR 13 John (1211), 98.

137

PR 7 John (1205), 262.

138

Rot.Lit.Pat., 104.

139

Ib., 106.

140

Rot.Lit.Claus. i, 192.

141

P.B. Roberts, Stephanus de Lingua-Tonante: studies in the sermons of Stephen Langton, Pontifical Institute of Medieval Studies, Studies and Texts 16 (Toronto, 1968), 128.

142

Rot.Lit.Pat., 137.

143

Memoriale fratris Walteri de Coventria ii, 221.

144

Rot.Lit.Pat., 143.

145

Ib., 144; Memoriale fratris Walteri de Coventria ii, 220-1.

146

Details on Rot.Lit.Pat., 143-4.

147

Rot.Lit.Claus. i, 169.

148

Rot.Lit.Pat., 144.

149

History of William Marshal ii, 194-5; Rot.Lit.Pat., 123.

150

Ib.,149.

151

See M.T. Flanagan, `Lacy, Walter de (d. 1241)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/15864, accessed 13 July 2015.

152

T.D. Hardy (ed.), Rotuli de liberate ac de misis et praestitis, regnante Johanne (Record Commission, 1844), 106 ‒ I owe this reference to Louise Wilkinson; Rot.Lit.Claus. i, 18, 100, 110 (Adam son of Hugh Hose and Hugh de Lascy, presumably the son of Roger de Lascy referred to in 1204.  In 1208 order was given for Hugh’s release from irons, but not from custody).

153

Ib., 147.

154

Rot.Ob.Fin., 562-4; Rot.Lit.Pat., 180.

155

Ib., 151.

156

Apparent in all the printed chancery rolls, but especially in Rot.Ob.Fin., 570-605, passim.

157

Rot.Lit.Claus. i, 239.  For Hugh’s rights in Cannock Forest see P. Dryburgh and B. Hartland (eds.), Calendar of the fine rolls of the reign of Henry III, 1216-1224 (Woodbridge, 2007), 231 (no. 6/18).

158

Rot.Lit.Claus. i, 282.

159

Ib., 260.

160

Ib., 231.  See also Vincent, Letters and charters of Cardinal Guala Bicchieri, 80 (no. 108).  Details of Lenham’s landholding from Book of fees i, 231, 238, 253.

161

Rot.Lit.Claus. i, 283, 290.

162

Ib., 376.

163

J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 101 provides examples.

164

Close rolls of the reign of Henry III, 1231-1234, 312-13.  I owe the suggestion about the Poitevins to David Carpenter.

165

J.R. Maddicott, Simon de Montfort (Cambridge, 1994), 284, Kosto, Hostages in the middle ages, 44.


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Original Latin

L

Nos amovebimus penitus de balliis parentes Gerardi Athyes, quod de cetero nullam habeant balliam in Anglia; Engelardum de Cygony, Petrum et Gyonem et Andream de Cancellis, Gyonem de Cygony, Galfridum de Martinni et fratres ejus, Philippum Marc, et fratres ejus, et Galfridum nepotem ejus, et totam sequelam eorumdem.

50

We will remove entirely the kinsmen of Gerard d’Athée from their bailiwicks, so that in future they may hold no bailiwick in England, [namely] Engelard de Cigogné, Peter, Guy and Andrew de Chanceaux, Guy de Cigogné, Geoffrey de Martigny and his brothers, Philip Marc, his brothers, and Geoffrey his nephew, and the whole of their brood.

Audio commentary

Referenced in

John moves toward the March (The Itinerary of King John)

Conference at Oxford (The Itinerary of King John)

Conference at Oxford (The Itinerary of King John)

John spends Christmas at Nottingham (The Itinerary of King John)

Tournaments, Ladies and Bears (The Itinerary of King John)

Tournaments, Ladies and Bears (The Itinerary of King John)

John prepares his exfil (The Itinerary of King John)


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Original Latin

LI

Et statim post pacis reformationem amovebimus de regno omnes alienigenas milites, balistarios, servientes, stipendarios, qui venerint cum equis et armis ad nocumentum regni.

51

And immediately after the restoration of peace we will remove from the kingdom all foreign knights, crossbowmen, serjeants and mercenaries, who have come with horses and arms to the detriment of the kingdom.

Audio commentary


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Original Latin

LII

Si quis fuerit dissaisitus vel elongatus per nos sine legali judicio parium suorum, de terris, castellis, libertatibus, vel jure suo, statim ea ei restituemus; et si contentio super hoc orta fuerit, tunc inde fiat per judicium viginti quinque baronum, de quibus fit mentio inferius in securitate pacis: de omnibus autem illis de quibus aliquis disseisitus fuerit vel elongatus sine legali judicio parium suorum, per Henricum regem patrem nostrum vel per Ricardum regem fratrem nostrum, quae in manu nostra habemus, vel quae alii tenent, quae nos oporteat warantizare, respectum habebimus usque ad communem terminum crucesignatorum; exceptis illis de quibus placitum motum fuit vel inquisitio facta per praeceptum nostrum, ante susceptionem crucis nostrae: cum autem redierimus de peregrinatione nostra, vel si forte remanserimus a peregrinatione nostra, statim inde pleman justiciam exhibebimus.

52

If anyone has been disseised or dispossessed by us, without lawful judgment of his peers, of lands, castles, liberties, or of his right, we will restore them to him immediately. And if dispute should arise concerning this, then it is to be dealt with by judgment of the twenty-five barons named below in the security for peace. But concerning all those things of which anyone was disseised or dispossessed, without lawful judgment of his peers, by King Henry our father or King Richard our brother, which we have in our hand, or which others hold and which we ought to warrant, we will have respite during the usual crusader’s term [of exemption], except for those matters over which a plea was begun or an inquest held on our orders before our taking of the cross. But when we have returned from our crusade, or if perchance we have stayed at home without going on crusade, we will then at once do full justice in such cases.

Audio commentary

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Commentary for academic researchers

Purposes and problems

What became Clause 52 of Magna Carta was strangely, even inconsequentially, placed as Number 25 among the Articles of the Barons, between two legal clauses regulating the writ of Praecipe and inquests `concerning life or members’, and its ultimate position much later in the Charter, among clauses mostly concerned to provide a swift remedy for the effects of John’s rule, gave it greater force as well as making better sense. In the Charter as a whole this Clause was one of only two which in effect acted as sequels to earlier ones (Clause 55 was the other). Clause 39 constituted an undertaking by King John to refrain in future from a wide range of oppressive actions directed against his subjects. The drafters of Clause 52 pinpointed disseisin, the unlawful seizure of land, as the most objectionable of these and demanded an immediate remedy for it – as, indeed, the barons had already done earlier in the year, when they swore to take action against the king `until he swore to restore to the leading men of England and Wales the lands and the castles which he had taken from them at his pleasure without either justice or law.’1 They did not, however, find it easy to define the Clause’s scope.

The issue was greatly complicated by John’s having taken the cross on 4 March 1215, and by the claim which he was therefore entitled to make to the respite against legal claims which was customarily allowed to crusaders. Defined in 1188 as lasting for three years, it was later extended to four or five, while where essoins (excuses for non-appearance in court) were concerned, by the late 1220s the respite had come to be regarded as lasting for as long as the beneficiary’s absence.2 Facing the possibility of delays which could thus have lasted for several years, the barons may at first have resisted the king’s right to this privilege, since Article 25 described it as having been referred to the judgment of Stephen Langton and the other bishops.3 But they cannot have been greatly surprised when the prelates decided in the king’s favour – working as they were under the eye of the pope, who was himself concerned to protect the interests of his own vassal, it would probably have been impossible for them to express the doubts about John’s sincerity recorded by the Crowland chronicler4 – and therefore had to take their judgment into consideration when drafting the Clause (as they were also obliged to do for Clauses 53 and 57).

Their doing so was only one of the considerations which made for differences between the Article and the Clause. Article 25 referred only to disseisin carried out `without judgment’, but Clause 39 had demanded that no action should be taken by the crown against a free man `except by the lawful judgment of his peers or by the law of the land’, and Clause 52 twice followed its example, referring to the victim of injustice as one who had been disseised `without lawful judgment of his peers’, possibly as a way of preventing the king from claiming that crown debtors had been lawfully deprived of their lands by judgments given in the exchequer court, which was closely controlled by himself and staffed by his own officials.5 The addition of castles to the disseisins which Clause 52 was intended to remedy must have reflected the interests of those barons who in the days following 15 June were recorded as seeking the recovery of what they claimed as their ancestral fortresses. But such variations between Article and Clause, though significant, were of a kind perceptible in many other parts of the Charter, and the two were in basic accord in providing for the immediate restoration of lands and rights unlawfully taken by King John, and in stipulating that the resolution of any disputed claims should be entrusted to the judgment of the twenty-five barons who were to be chosen (on 15 June they had not yet been named) to enforce Magna Carta as a whole.

Much greater differences can be seen, however, where the disseisins allegedly committed by Henry II and Richard I were concerned. For whereas Article 25 had declared that these were to be rectified without delay by the judgment of the claimant’s peers in the king’s court, Clause 52, as finally negotiated, conceded that they should be covered by the temporary exemption from legal process which his crusading vow gave the king. Probably John was able to present plausible arguments that actions attributed to his predecessors, which could have dated back as far as the late 1150s, and consequently affected two or three generations of competing possessors, might raise issues of conflicting right too involved to be settled as expeditiously as Article 25 demanded. Clause 52 itself pointed to one difficulty, when it distinguished between lands which were still in royal hands and those which had been granted to third parties, but for which the king could be required to act as warrantor. In that role John would have been obliged to give an equivalent compensation to any present holder who proved unable to maintain his right in whatever the king’s brother or father had given him or his ancestor. In 1215 it was probably easy to imagine beneficiaries of royal generosity in the past, as well as the occupant of the English throne in the present, becoming repeatedly involved in complicated lawsuits over grants of land whose title may not have been very clear in the first place, leading to suggestions that the twenty-five barons, under pressure to give hasty judgments upon such cases, risked doing little more than substitute new acts of injustice for old ones.

In reality, of course, one may reasonably doubt if John was principally moved by considerations of judicial righteousness when he secured the deferment of such cases. He must have wanted above all to secure his followers in what they held, to weaken his opponents by denying them the opportunity to recover lost possessions, and to secure himself against claims for compensation, all for as long as possible and preferably indefinitely. The barons, for their part, did their utmost to restrict John’s ability to gain from the respite thus granted to him. They secured an undertaking that it would not apply to lawsuits already in progress, or to claims which John had ordered should be investigated before he took the cross. (Geoffrey de Say’s bid for the lands of William de Mandeville, earl of Essex, of which he asserted that his father had been disseised by Richard I, may come into this category; one of the twenty-five, Geoffrey had presented his claim as recently as July 1214, when John instructed the justiciar to take advice and `do what seems most expedient’.)6 And they also forced the king to concede that he would do full justice on the cases concerned not only as soon as he returned from crusade, but also if `perchance’ he did not go. The barons clearly had grave doubts about John’s commitment to the well-being of the Holy Land, and did not intend to allow him to benefit from the advantages which his vow had brought him beyond the strictest letter of the law.

 

Precedents

Acts of disseisin carried out by King John and his predecessors are analysed in detail in the commentary on Clause 39, and where the broader context for Clause 52 is concerned it only seems necessary to underline the extent to which all the Angevin kings used dispossession of lands as a device to enforce their will, with effects which could be long-lasting. John himself reinstated landowners in estates lost to them in the reigns of his father and brother. Thus at the beginning of his reign Richard Gubiun paid forty marks (£26. 13s. 4d.) in two years, with an extra five marks for confirmation in 1201, to recover lands of which his father Hugh, seemingly an unsatisfactory sheriff of Northamptonshire, had been disseised no later than 1166,7 while Henry Mallore proffered sixty marks (£40) to recover lands lost by his father for supporting the Young King Henry against Henry II in the great rebellion of 1173/4.8 Also restored in 1199 was Hugh of Saundby, Nottinghamshire, who recovered lands `of which he was disseised because of Count John’ – the fact that the beneficiary had been one of his own supporters in 1194 did not prevent the new king from taking twenty marks (£13.6s. 8d.) for reversing the punishment inflicted by his elder brother.9 As late as 1203 members of a Lincolnshire family proffered twenty marks `for having seisin of their father’s lands in Shoreham of which their father, who was with St Thomas, was during the latter’s persecution disseised and imprisoned by the will of King Henry the king’s father, and for no other reason ...’.10

John himself was an inveterate disseisor of other men’s lands, and known to be such, so that it was with good reason that in 1206 Earl Roger Bigod proffered 100 marks (and paid them within a year) `that he may not be disseised of the land of Bungay which Countess Gundreda held of his inheritance, as he says, unless by judgment of the king’s court’ (Gundreda was his recently-deceased stepmother, who had doubtless held Bungay as part of her dower).11 It is worth noting in this context, however, that even under King John disseisin was not necessarily inflicted, or accompanied, by violence, it could also be achieved by subtler methods, by threats masquerading as persuasion, almost by stealth. On 11 May 1204 John issued a charter on behalf of Cirencester Abbey in which he granted the canons, among other things, `all the land which was William of Cirencester’s which he had in Cirencester and Minty with all its appurtenances, which King Richard of good memory our brother previously gave them, and of which we afterwards disseised them by our will and gave it to Noel our servant ...’.12 The abbey’s cartulary reveals the manoeuvres behind the king’s action. No direct force had been applied, though the threat of it was barely concealed. On 7 August 1202 John wrote to the abbot and convent asking them to convey William’s land to William Noel, and so to earn the king’s gratitude, but adding: `And do you know that unless you do this we shall direct our justiciar to cause him [Noel] to have that land without delay ...’. Twelve days later the justiciar, Geoffrey FitzPeter, showed that he was made of the same stuff as his master, when he sent them a copy of the king’s letter along with instructions of his own, in which he told the canons on the king’s behalf that they should `do as much therein as will not oblige us to apply the hand of justice ...’.13 In 1204 the abbey paid £100 to recover the land.14 Two years earlier they had been unable to refuse the king’s demand, and presumably without resistance allowed William Noel to take possession of what was clearly a valuable property. Nevertheless by his own admission the king’s act constituted a disseisin, and was unlawful as such.

A similar case arose in June 1212, albeit one involving much more important people, concerning the honour and castle of Trowbridge, Wiltshire, which was held by Henry de Bohun, earl of Hereford, but claimed by William Longespée, earl of Salisbury. The two earls were already in dispute over property at Caldicott, Monmouthshire, when Hereford was also summoned to appear before the king to answer for the services he was said to owe from a number of Wiltshire townships, Trowbridge among them. He essoined (excused himself from appearing in court) in both actions on the grounds of ill health, but although this was deemed acceptable in the proceedings over Caldicott, it was ruled impermissible in a plea involving service to the crown, and as a result all the Wiltshire lands at issue were confiscated `for default of the service which the earl ought to do to the lord king.’ Although the decision may well have been technically sound, it still conveys a strong sense of judicial manipulation, especially as John, without making a formal grant, subsequently conveyed the disputed lands to his half-brother Salisbury.15 No violence was said to have been involved, but John was later described as having `by his own will without judgment disseised Henry de Bohun ...’.16 There were probably many such occasions, when the very fact of royal power made the king’s demands, whether backed up by the forms of law or not, irresistible to those confronted by them.

 

The immediate context: events in 1215

The canons of Cirencester, at least, escaped relatively lightly, but they were doubtless aware that the consequences of royal disfavour could be dire, both for its immediate victims and for their descendants or successors, and that the chances of their being reversed must usually have depended on the same kind of royal whim, or need, which had originally inflicted them. In 1215 there must have been many who knew this all too well, and hoped that circumstances had now become such that they could literally recover lost ground. Those circumstances were, of course, exceptional, in that they provided both an opportunity and also a need for the acts of restitution ordered by Clause 52, for against a background of rebellion, and the threat of civil war, it is not surprising that John’s measures against men whom by mid-May he was openly referring to as his enemies should have included a number of orders for the seizure of their lands and their granting to followers of his own. One of the purposes of Clause 52 was certainly the reversal of these recent disseisins. The men targeted by name included several of the most prominent rebels – Robert FitzWalter, William and Geoffrey de Mandeville, Robert de Vere and William of Huntingfield all lost lands, and all were later among the twenty-five barons charged with the enforcement of the Charter. Giles de Briouze, bishop of Hereford, who had suffered from the proscription of his whole family by King John and joined the rebels as a result, was treated similarly, as was Henry of Braybrooke, a sheriff and administrator – his change of allegiance was clearly deeply resented by John, who ordered the devastation as well as the confiscation of Henry’s lands.17  

More were disseised at this time, however, than the records show. No order was enrolled for the seizure of Richmond Castle from Ruald FitzAlan, only for its return to him on 21 June,18 or for the dispossession of the earl of Hereford, though as another prominent rebel he was certainly among the king’s victims. His recovery, also on 21 June, of `his rent from Herefordshire which is in arrears’ presumably covered the third penny of the county due to him as earl, valued at £20 per annum;19 he had received this sum every year between 1200 and 1214, but may well have received nothing in 1215 (no Herefordshire account was entered on that year’s pipe roll). An order given on the same day, that `the whole of the land which we had handed over to our brother W[illiam], earl of Salisbury’ should be returned to Bohun, gave him back estates in Hampshire, Dorset, Somerset, Berkshire and Wiltshire.20 As noted above, Hereford was in dispute with Salisbury over the honour and castle of Trowbridge, and the castle was excluded from the order. He may have lost the other lands around 15 May, when John commanded that those knights of the honour who had chosen to follow Earl Henry rather than Earl William should lose all their lands, chattels and fees.21 The sub-tenants of other lords probably also forfeited their lands at this time, men like Nicholas of Yealand, a tenant both of Geoffrey de Mandeville in Essex and of William de Mowbray, one of the king’s bitterest enemies, in Northamptonshire and Yorkshire – on 28 May John granted away the chattels found on Nicholas’s land.22 Indeed, the king’s nets came to be very widely cast, for on 12 May he issued a general order to all the sheriffs of England, commanding each one `that immediately you have seen these letters you seize into our hand all the lands of our enemies in your bailiwick, and make our profit from the things and chattels which you find on their lands, as seems most expedient to you ...’.23

In the early summer of 1215 the political situation must have been such as to make it frequently impossible for John’s agents to carry out his orders, whether general or specific, and it seems likely that many of the men targeted did not in fact lose their lands. Even so, the king’s directive was so sweeping in its range as to constitute a sure recipe for confusion, as can be seen in the order which John himself sent to the sheriff of Cornwall on 29 May, telling him that `if Hugh de Beauchamp is our enemy and with our enemies against us’, then his lands were to be given to Hasculf de Suleny.24 Hugh’s position may well have been a complicated one. He had in fact been disseised a year earlier, on unspecified grounds, while he was in the king’s service in Poitou, so that order had to be given in January 1215 that his lands should be returned to him.25 But although he certainly became a rebel (he was recorded as returning to the king’s allegiance on 29 March 1217),26 it is not known when and why he did so, and his position, whether legal or political, may never have been entirely clear. As late as January 1222 he proffered £5 for an inquest as to `whether King John disseised Hugh of his land of Binnerton by his own will or by judgment of his court, and whether he was disseised in a time of peace or in a time of war.’27 Another probable victim of the king’s indiscriminate aggression was Peter FitzOger, also a west country landowner, whose lands in Devon and elsewhere were restored to him on 22 June with an admission that `we believed that Peter was against us in the war begun between us and our barons.’28 No doubt John’s precipitate action helped to ensure that his fears were subsequently realised, when Peter did indeed join the ranks of the king’s enemies.29 The king’s anger and indignation was even briefly extended, and quite possibly for no better reason, to the senior justice, Simon of Pattishall, so that on 15 or 16 May he was deprived of the manor of Waddesdon which he had been holding at the king’s pleasure.30 Simon was soon able to reassure John of his loyalty and secure the return of his possessions,31 but others (like Peter FitzOger) may have had to wait for Clause 52 to provide an official remedy.

 

The role of the twenty-five

That remedy was not necessarily going to be instantaneous. Clause 52 was one of several to begin with the conjunction `If’. But whereas in most of the others the word used could equally well have been `When’, here (and also in Clause 57, dealing with Welsh disseisins) it had a genuinely conditional quality, raising the possibility that the king would deny that a disseisin had taken place, or had been made without a lawful judgment, and that there would be differences which it would be the task of the twenty-five barons to resolve.32 John was most unlikely to regard the latter as constituting an impartial tribunal, but he could always hope that divisions would emerge among them which he could then exploit, especially if more than one claimant came forward to assert a right to lands now in the king’s hands. In the days immediately after the issue of the Charter, however, the barons were united, and the king was rarely able to resist demands for restitution, though there is evidence for his trying to do so.

On 19 June John notified William Longespée that `seeking respite from the earl of Hereford for the return of his lands of which we had him disseised, we could not obtain respite for open country, but only for Trowbridge Castle ...’.33  John’s choice of words suggests that Hereford presented his claim to Trowbridge to the twenty-five as soon as they were chosen (he was one of them himself, and for the implementation of Clause 52 there was no requirement that a member of the baronial committee should stand down while his own case was discussed, as there was for Clause 55), that he obtained an immediate judgment in his favour, and that the king’s subsequent efforts to delay the implementation of their award, through negotiations with the earl, met with very limited success – the lands of the honour were to be surrendered at once, while his respite for Trowbridge Castle gave him only a further nine days before that, too, was to be handed over. A similar scenario, involving a much less eminent figure, is suggested by the record of John’s dealings with William FitzElyas, a knight of the honour of Wallingford., whom he had deprived of the Buckinghamshire manor of Oakley in 1208.34 The king had then granted it to a member of the staunchly loyalist Basset family, two of whose members stood by him at Runnymede, and he was at first inclined to dispute William’s right, for on 23 June he told the sheriff to hand the manor over to him `if we unjustly disseised him of it as he says, by our will and without judgment ...’. Investigations were to be made, under the auspices of a royal officer, and only if they found in William’s favour was he to obtain possession of the manor. But the order was swiftly cancelled, for only a day later another letter close was sent to the sheriff, ordering him to give William possession of the manor, `which was awarded to him’.35 It would appear that William had turned to what at that moment arguably constituted a higher authority even than the king, and had obtained a judgment with which the latter felt obliged to comply.

The activities of the twenty-five barons are wrapped in some obscurity. It may be thought that John would have regarded it as most unbecoming for a king to agree to answer for his actions before a gathering of his subjects and then to hear them pronounce upon the legality of what he had done, raising the possibility that at least some of the mandates for the restoration of lands issued in June and July 1215 were given by him in the hope of winning support and as a way of emphasising his own new-found righteousness.36 To set against such a hypothesis there is the explicit account by the `Anonymous of Béthune’ of an occasion on which the twenty-five came to court to make a judgment (en la court le roi por i. jugement faire), and found the king lying sick in bed, incapacitated by an illness in his feet. Unable to go out to meet the barons, John called on them to wait upon him in his chamber, so that they could give judgment there, but this they refused to do, as contrary to their rights, with the result that he had to have himself carried into their presence. Given the unreliability of some of the other details concerning the Charter given by this source,37 the accuracy of this story, which its author related less to demonstrate the Charter’s implementation than to illustrate the arrogance of the baronial leaders, can hardly be taken for granted. Yet restitutions of land were certainly made, and on balance it is seems very probable that the twenty-five were involved in at least some of them, if only because it seems unlikely either that John would often have reversed his own acts except under pressure, or that the twenty-five would have been reluctant to use the authority given them by the Charter to take steps which were advantageous to themselves and their followers, and correspondingly detrimental to the king.

 

The king’s victims

The number of orders that lands should be handed back to their previous owners, however they originated, was not in fact very great, but they benefited a wide range of people, in ways which sometimes make it possible see the workings of John’s government, and the king’s dealings with his subjects, in a clearer light than an analysis of the generalised accusations implicit in Clause 39 can often provide. Many of those concerned were magnates, but not all were, and some were no more than lords of manors, like William FitzElyas, or his fellow knight of the honour of Wallingford Ralph Chenduit, who obtained an order for the restoration of 40s. rents at Netley (and later one for unspecified land at Berkhamsted, possibly involving the same property).38 As Clause 43 showed, John’s rule had weighed heavily on honours like Wallingford, and earlier in 1215 William and Ralph had probably been in rebellion against the king.

Other men who now recovered their lands had almost certainly been punished for following their lords into rebellion, or perhaps simply for having links of kinship or tenure to rebellious lords. Bartholomew Turet, who recovered lands in Shropshire and several other counties on 21 June,39 was later recorded as a rebel in the company of Fulk FitzWarin,40 who had been an enemy of King John long before 1215. Guy de la Possonière, who succeeded his uncle Pain of Rochford in the manor of Hatfield Broad Oak, Essex, by a royal order issued in August 1214,41 almost certainly lost it again the following year as a result of links to Robert de Vere, whose family had the patronage of Hatfield Broad Oak Priory.42 Clemencia, wife of Henry de Braibuef, whose disseisin of her dower at Headington and elsewhere in Oxfordshire was rectified on 29 June,43 probably suffered because her husband held the Hampshire manor of Eastorp from the earl of Hereford.44 The order which Hugh Ruffus and his wife Alice obtained to the sheriff of Hampshire on 21 June for the restoration of Alice’s dower at Faccombe and Langley, not only gave the cause of their dispossession as `the war arisen between us and our barons’ but also identified Alice as the daughter of William of Huntingfield, one of the twenty-five.45 Hugh was certainly in rebellion against the king by early 1216,46 but he cannot be shown to have been so at the time of Magna Carta, and he may have been penalised initially for the recalcitrance of his father-in-law rather than for any offence of his own.

Not all the disseisins reversed shortly after Magna Carta can be dated. It is impossible to say, for instance, when Ranulf FitzRobert lost the Lincolnshire manor of Saxthorpe, restored to him on 23 June,47 except that it must have been some time after 1206, when he proffered 200 marks for it, with other lands, after it had been in the wardship of Archbishop Hubert Walter. On that occasion, ironically, it was a condition of Ranulf’s recovery `that he should not be disseised of that land of Saxthorpe without judgment ...’.48 But others can be shown, or at least argued, to have been carried out some years before 1215. William FitzElyas, as noted above, lost Oakley in 1208, and it must have been in the same year that Bishop Giles de Briouze was deprived of a tract of pasture which was restored to him in 1215, `such as he had before he left England by reason of the general interdict’.49 It was in 1209 that Robert FitzWalter lost Hertford Castle,50 that Hugh de Loges was deprived of Cannock Forest and Rodbaston Castle in Staffordshire, after he had held them in the right of his wife since 1195,51 and that the manor of Wendover, Buckinghamshire, was taken from William de Fiennes (this case is discussed further below). The township of Buckingham, which John handed over to Richard earl of Clare on 21 June 1215, as the marriage portion of the earl’s daughter Matilda, had probably come into the king’s hands in 1210, as one of the consequences of the ruin of the Briouze family – Matilda was the widow of William (iv) de Briouze, starved to death in Windsor Castle late in that year.52

The aftermath of the 1212 conspiracy against King John’s life saw a number of disseisins which were not revoked until 1215. As in the latter year, the fortunes of a magnate and his retainers could sometimes be closely linked. On 22 June Brian de Lisle was ordered to restore to Brian FitzAlan the service of a knight’s fee in Staveley, Derbyshire, held by Adam of Staveley, `if Adam ought to hold it of Brian’.53 Adam, it was recorded two years earlier, did indeed hold of Brian FitzAlan, who in turn held of Eustace de Vesci, one of the prime movers of the conspiracy.54 It seems likely, therefore, that Brian had lost Adam’s service as a result of Vesci’s treason, with the latter’s forfeiture being extended to his tenant (there is no evidence that Brian had been Vesci’s accomplice in conspiracy). Another case saw similar results but in a different order. In May 1212 the king took the manor of Godmanchester, Huntingdonshire, from Earl David of Huntingdon, even though David had held it since around 1190 and had been confirmed in it both by Richard I and by John himself. Shortly afterward the earl’s illegitimate son Henry and twelve of his tenants were disseised of their lands in the manor. Moved, perhaps, as much by the common tendency to hate the man one has injured as by any genuine suspicions, after the conspiracy came to light John moved against Earl David himself, and forced him to surrender Fotheringhay Castle, the focal point of his honour of Huntingdon.55 He and his tenants were restored to what they had lost within three days of each other in June 1215.56

Earl David also had an interest in another disseisin carried out in 1212 and reversed in 1215. He had earlier litigated against the earl of Hereford over the manor of Ryhall, Rutland.57 He had once held it as part of his honour of Huntingdon, but his older brother William, king of Scots, had contrived to have it granted to their sister Margaret, married successively to Duke Conan of Brittany and Humphrey de Bohun, earl of Hereford. Earl Henry was her son, and when Margaret died in 1201 he claimed the manor of Ryhall along with twenty knights’ fees. David disputed the claim at first, but did not persevere in it, and Henry remained lord of Ryhall until 1212, when John took the manor from him and granted it to Renaud de Dammartin, count of Boulogne.58 The count’s family had a long-standing claim to the manor, but John’s granting it to him surely reflected less that claim’s validity than his need for Renaud’s support (confirmed by treaty on 4 May 1212) in his diplomatic and military planning for the recovery of Normandy. By 1215, however, Renaud was a prisoner of the French king, following his capture at the battle of Bouvines, and on 23 June it was restored to Henry de Bohun.59 This was probably not the only time that John disposed of other people’s property as a way of advancing policy. The manor of Wendover was disputed for over fifty years by members of the Gurnay and Fiennes families. The issue was temporarily resolved in 1209 when Hugh de Gurnay obtained possession of it, at the expense first of Sibyl of Tingrith and then of her son William de Fiennes.60 Until 1204 Hugh was a powerful Anglo-Norman lord, and even after that John clearly felt the need for his support, repeated demonstrations of untrustworthiness notwithstanding. That the king was essentially responsible for the dispossession of William de Fiennes is shown by the terms of the latter’s reinstatement in Wendover in 1215, at first simply as his hereditary right, but on 15 September `as he had [it] on the day on which we disseised him of it’.61

Policy of a different, essentially fiscal, kind may have lain behind other disseisins. The removal of Cannock Forest from the hands of Hugh de Loges, probably in 1209, and its being entrusted to Hugh de Neville, the king’s royal forester, no doubt reflected John’s determination, very evident at this time, to exploit the forests to the utmost. It was to Neville that directions for Cannock’s restitution to Loges were sent on 21 June 1215.62 Four days later, on 25 June, order was given for the immediate restoration to Ralph de Greselegh’ and his wife Isabel of the latter’s inheritance at Muskham, Nottinghamshire, and Ilkeston, Derbyshire.63 In November 1213 Ralph was recorded as having proffered 500 marks for the land (and for the right to marry his daughter to one Robert Lupus), the first 200 marks to be paid in John’s fifteenth year – under the most favourable construction by May 1214 – and the remaining £200 in equal portions in the following two years.64 But there is no record of his having paid anything, and the likelihood is that the sum demanded was much more than he was able to pay, with the result that the land was taken back by John. That this is what happened is strongly suggested both by the renegotiated fine which Ralph was able to make in 1219, for just £100 (the original fine was recorded as having been quashed – quassatus est),65 and by the fact that even this much reduced sum was paid only slowly, not being cleared until 1225.66

A similarly excessive demand probably lay behind the disseising of William of Eynsford, who on 23 July 1215 obtained an order for the restoration of the wardship of the land of Hugh de Aubeville, `such as he had before war arose between us and our barons’. Significantly, the order was not sent to a sheriff or other local official but to William Brewer.67 Eynsford, who was a wealthy landowner in Kent, where he was a leading tenant of the archbishop of Canterbury,68 had proffered 1200 marks (£800) in 1212 for the wardship of Hugh de Aubeville’s heirs and the marriage of his widow (who happened to be his own sister).69 By July 1213, however, wardship and marriage were back in the king’s hands, to be granted out again, this time to Brewer, who proffered 1000 marks (£666. 13s. 4d.) for them.70

It is possible that behind this lay some unrecorded incident, perhaps associated with the mustering of the army in Kent under John’s supervision in the spring of 1213, or with the return of Archbishop Stephen Langton to England on 9 July. But although John may well have been pleased to oblige one of his most reliable henchmen, and to do so, moreover, in a region where the crown was relatively lacking in resources,71 it seems just as likely that his motives in accepting a lower bid were essentially fiscal. The date on which Eynsford’s proffer was accepted is unknown, but the terms included his answering to the executors of Hugh’s will for all his late brother-in-law’s debts, while also paying 400 marks into the exchequer by the end of John’s fourteenth year, presumably signifying Michaelmas 1212, and then 300 marks in each of the next two, and 200 in the fourth. He is not known to have paid anything before Michaelmas 1213, however, and by then his debt had been reduced by only 250 marks (£166. 13s. 4d.), while a year later it was the sheriff of Kent, not Eynsford himself, who accounted for a further 350 marks (£233. 6s. 8d.).72 So whereas by Michaelmas 1214 William should have paid 900 marks, in fact he had only paid 600, a shortfall which might have allowed King John, at a time when his resources were stretched to the limit, to feel justified in taking the wardship back and then granting it out again, on the basis of what he now knew was a more realistic proffer.73 The letter of the law may have been on the king’s side in this case, but it would be surprising if the loss of his wardship, along with the money he had so far paid for it, did not arouse Eynsford’s fierce anger. One of the four knights appointed to receive oaths of obedience to the twenty-five in Kent, in accordance with the Charter’s security clause, he had rebelled by the autumn and was subsequently captured in Rochester Castle.74

 

Agencies of disseisin

William Brewer’s involvement in the disseisin of William of Eynsford may have been indirect, but he was active in exploiting other men’s difficulties to his own advantage, as were others among King John’s servants. Several disseisins carried out by them came to light and were corrected following the issue of Magna Carta, though not always very quickly – an order that Hugh of Lawton should be put back in possession of lands at `Binchelton’ in Herefordshire, of which his father had been disseised by William de Briouze, was not issued until June 1216.75 But there was greater urgency in other cases. On 24 June 1215 Brian de Lisle was ordered to give Ralph FitzWarin `full seisin of the land in Dorrington of which you have disseised him’76 – the land in question was presumably that of Warner of Dorrington for whose issues Lisle accounted between 1211 and 1214.77 That they amounted to just 40s. per annum illustrates how deeply into landowning society the activities of the king’s government and officials could penetrate, and their ability to impinge upon people of relatively humble standing.

By contrast, instructions sent not long afterwards to the sheriff of Gloucestershire, that he should allow the abbot and convent of Cirencester to enjoy all their liberties `of which they were disseised by Girard d’Athée ...’,78 show a royal servant imposing his will on the rich and powerful, for Cirencester was probably already, as it certainly later became, the wealthiest Augustinian house in England. Girard had been sheriff from January 1208 until his death in 1210, when he was succeeded by Engelard de Cigogné, who clearly did nothing to restore what his predecessor had taken – the order for restitution was sent on 9 July, the day after Engelard was replaced as sheriff. The loss was a substantial one. In 1190 the abbey had bought the manor of Cirencester with the township of Minty and seven hundreds pertaining to it for £100 from Richard I,79 and John had confirmed his brother’s grant in 1199, in return for a further £100.80 For this the canons were to pay the exchequer a fee-farm of £30 per annum. From 1210, however, it was the sheriff who paid it,81 showing that the abbey had lost control both of the town on its doorstep and of a considerable part of east Gloucestershire.

In these cases there is no evidence for the king’s direct involvement in the actions of his agents. Orders may have been informally given, but it is just as likely that men like Girard d’Athée acted as they did either in accordance with their understanding of John’s policy or simply for their own advantage, confident in either case that the king’s authority would support them against any complaint. Other victims of disseisin, however, were too eminent to be targeted except by the king’s command. A borderline case in this respect was that of John of Sanford, restored to his office of chamberlain to the queen, `as he should and is accustomed to have it’, on 22 June 1215.82 The office was a serjeanty, and brought with it the possession of Great Hormead in Hertfordshire, and of four other manors there and in Essex,83 raising the possibility that John (who had accompanied the king to Poitou in 1214)84 had suffered for some unrecorded association with the rebellious magnates of those counties – perhaps with Robert de Vere, whose grandson married a descendant of John’s,85 or with Robert FitzWalter, recorded in 1212 as holding the manor of Little Hormead in wardship.86 The order for Sanford’s restitution was sent to the barons of the exchequer, where either he or his clerk was responsible for the collection of the traditional levy known as queen’s gold.87 It seems improbable that the barons would on their own initiative have ventured to deprive one of Queen Isabella’s leading household servants of his office – such an order must surely have come from the king himself (in which case his having given it may shed some light on King John’s relationship with his wife).

Some of the victims of arbitrary disseisins were magnates, however, and here it seems certain that King John was responsible for their losing lands and rights. On 22 June 1215 he ordered the surrender to Gilbert de Gant of the wardship of land in Hunmanby (Yorkshire, East Riding) and to Eustace de Vesci of that of half a fee at Tanfield (North Riding), which had been entrusted to Robert de Vieuxpont along with the custody of the heir of Hugh Gernagun, if it should be found that these properties formed part of their respective fees, and not of the honour of Richmond.88 Hugh had died in around 1203, and these lands seem to have come into the king’s hand because they were alleged to have been held of the honour of Richmond, then under royal control but granted to Ranulf, earl of Chester, in 1205. That there appears to have been no serious doubt of Gant’s overlordship of Hunmanby89 did not prevent King John exploiting his holding of one barony in order to encroach upon the rights of another. Where de Vesci was concerned, he may have lost control of Tanfield in the same way, or been deprived of it at the time of his forfeiture for treason in 1212.

Vesci’s treason was almost certainly the reason for another loss, financially trivial but for its victim perhaps an even greater cause of resentment. On 23 June the sheriff of Northumberland was ordered to allow Eustace to have `liberties for his dogs in the forest of Northumberland as he should and is accustomed to have them.’90 In what may have been a deliberate provocation, Eustace had clearly not recovered his hunting rights when his lands were returned to him in July 1213; but instead faced the possibility of a challenge by the king’s foresters every time he left Alnwick Castle to engage in an aristocrat’s favourite sport. Such privileges mattered to those who enjoyed them, or believed they were entitled to enjoy them, for fiscal reasons or for the prestige they brought, or both. Geoffrey de Mandeville was not only concerned to regain lands he had been deprived of, along with his rights of monastic patronage (at issue under Clause 46), but also to establish firm boundaries between his own chases and those of the crown in Somerset and Dorset – like Eustace de Vesci he wanted to be able to hunt free from interference – and following his marriage to the king’s former wife to secure `all the liberties belonging to the honour of Gloucester which he has with I[sabella] countess of Gloucester his wife ...’. Orders granting him what he sought were issued on 23 June.91

 

Castles and other claims

This was not all that Geoffrey de Mandeville tried to obtain following the issue of Magna Carta, for he and other barons made a number of further claims, often of doubtful validity. He himself asserted a right to the custody of the Tower of London, on no stronger grounds, according to the Crowland chronicler, than the fact that his father, Geoffrey FitzPeter, had held it in his capacity of justiciar.92 Mandeville may indeed have put forward such a claim immediately after his father’s death on 2 October 1213 – it was to him that on 3 November the king sent an order for the Tower to be handed over to the archdeacon of Huntingdon93 – and he may also have tried to bolster it by reference to his ancestors, including his namesake the first earl of Essex, having been constable of the Tower under the Anglo-Norman kings. But in either case his claim was a weak one; John compromised to the extent of placing the Tower in the keeping of Archbishop Langton, but it remained effectively in the king’s hands, until the superior force at the disposal of Prince Louis compelled its surrender in November 1216, by when Mandeville was dead.94

Even feebler, however, were the arguments with which William de Mowbray tried to win the custody of York Castle and the royal forest in Yorkshire. On 19 June he obtained an order that the castle be surrendered to him, ahead of a detailed investigation of his claim, allegedly a hereditary one (hereditarie).95  That claim has been crisply dismissed as `bogus, based on alleged precedents in the reign of Stephen’,96 and Mowbray himself was probably well aware of its flimsiness, since he then made what seems to have been a no less fraudulent attempt to support it, by reference to an inquest which he said had been held and which upheld him in his rights. John’s response, on 21 June, was to order the sheriff of Yorkshire to tell him if such an inquest had in fact been held, and if it had by whom, when, in what terms and on whose order, and to direct him to hold a new one.97 All the king’s questions would have been answered by the record of the inquest, had Mowbray provided one.98 That the king had to ask for such information strongly suggests that no such record was forthcoming, and that Mowbray simply announced that there had been an inquest which found in his favour, and expected the king and his fellow barons to believe him. John, understandably, declined to do so, and Mowbray’s baronial allies, too, may have found his assertions something of an embarrassment, and given him only tepid support in them. Certainly there is no clear evidence that he obtained either castle or forest – baronial forces appear to have occupied the city for a while,99 but then they withdrew, perhaps ahead of the king’s arrival there with an army on 3 January.100

A number of other claims to castles were put forward in the days following 15 June, at least some of them more credible, and therefore more successful, than Mowbray’s to York. Earl David of Huntingdon’s right to Fotheringhay Castle, seized in 1212, was indisputable, as was that of Ruald FitzAlan to Richmond Castle, which royalists had captured in the spring of 1215.101 Saer de Quincy, earl of Winchester, had what was at least a plausible claim to Mountsorrel Castle, Leicestershire – his wife Margaret was one of the two sisters and coheirs of Robert de Breteuil, fourth earl of Leicester, from whose father, the third earl, the castle had been confiscated by Henry II in 1174102 – and Robert FitzWalter’s right to Hertford Castle could probably be seen in a similar light, since it had been held by the ancestors of his wife, and also by Robert himself, albeit by royal grant, between 1202 and 1209.103 An inherited right to the office of constable, originating in the distant past, appears to have constituted the basis for William Mauduit’s claim to Rockingham Castle, and also for William de Lanvaley’s to Colchester Castle.104 Neither was able to point to royal acceptance of these ancestral claims, however, though Lanvaley could have pointed out that his father had held the castle at the end of Richard I’s reign, and then proffered 200 marks (never paid) in 1200 to retain the custody during pleasure; moreover, although William senior died in 1204, his widow was permitted to hold the castle until 1209 or 1210, when it was finally taken back into the king’s keeping.105

The most contentious of these claims to castles was probably that of Nicholas de Stuteville to Knaresborough, which had fallen into the king’s hands as a result of Nicholas’s failure to keep the terms, made in 1205, for his payment of a 10,000-mark fine for succession to the lands of his brother William.106 John was certainly anxious to retain possession of Knaresborough Castle, a major fortress west of York which commanded the approaches to that city from Nidderdale, and which he had spent about £1300 over ten years on strengthening, having entrusted its custody to Brian de Lisle, one of his most reliable agents.107 And for that reason he must have disputed vigorously any claim that the castle had come into his hands by disseisin, arguing instead that he had merely taken possession of it as a pledge for a settlement which Nicholas had yet to honour. For their part, Nicholas and his allies could have claimed, no less plausibly, that Stuteville’s proffer for his inheritance had not only been inordinate but was also made under duress, as the only way in which he could have obtained his inheritance. The two positions were irreconcilable and the result was stalemate, which may have been intermittently disturbed by negotiations, but was not (theoretically) broken until representatives of the twenty-five finally awarded Knaresborough to Nicholas, `as his right’, on 30 September 1215.108 By then King John had long ceased even trying to negotiate over the implementation of the Charter, and was more or less openly preparing for war. Consequently the order to Brian de Lisle to surrender Knaresborough Castle to Stuteville looks more like a last-minute bid for military advantage than a serious attempt to rectify an injustice (not least because nothing was said about Boroughbridge, which had no castle). It will have been for the same reason that some three weeks later the twenty-five conveyed the three northernmost English counties to their ally Alexander II, the young king of Scots.109

The baronial attempt to secure Knaresborough Castle was unsuccessful. Lisle refused to surrender the castle, which remained in the king’s hands throughout the civil war and long afterwards. Most of the other baronial efforts to obtain castles either came to nothing or did little good to those who made them. Geoffrey de Mandeville did not receive custody of the Tower of London, and William de Mowbray is not recorded as having obtained possession of York Castle, despite John’s initial order for its surrender to him. Fotheringhay, Richmond, Rockingham, Colchester and Hertford Castles were indeed handed over to barons asserting their rights in them, but all were subsequently lost to the king’s men (Colchester to the king himself) once civil war broke out.110 Until the arrival of the French (and sometimes even afterwards), the English rebels were seldom able to hold their fortresses against John’s professional soldiers.

Claims to offices and lands were not always much stronger than those put forward to castles. Richard de Munfichet’s claim to the forestership of Essex provides another borderline case. He was asserting his right to a position held by his grand-father Gilbert, who had probably forfeited it for his involvement in the rebellion of 1173/4 against Henry II.111 But Gilbert himself appears to have tried in vain to recover it in 1186,112 and although his son, another Richard, proffered £100 for it in 1200, he had only paid £25 by the time of his death in 1204, leaving the transaction incomplete.113 In allowing the younger Richard’s claim, John may well have been moved by the consideration that thanks to his own grant of disafforestation, made in 1204, the proportion of Essex under forest was significantly smaller than it had been in his father’s reign, when it covered the whole county.114 John and Richard de Vautort were later found to have resorted to outright dishonesty in order to obtain Shepperton manor in Middlesex. The king granted it to them on 27 July, after they had untruthfully asserted that Robert de Beauchamp, who had a rival claim to the manor, had died as a hostage in France.115 On 25 June John had ordered that William de Mandeville, the earl of Essex’s younger brother, should be given seisin of `his lands of Aylesbury and Berkhamsted ... which he had before the outbreak of discord between us and our barons [and] which were taken into our hand because of the war ...’.116 William’s actual seisin of these valuable manors seems to have been tenuous at best. Both had been held by his father, the justiciar Geoffrey FitzPeter, but after the latter’s death in 1213 Aylesbury, though granted in tail to FitzPeter in 1205 (which should have favoured his elder son Geoffrey), was taken back by the king who granted its custody during pleasure to Geoffrey of Buckland, a kinsman of the late justiciar, and after the civil war Mandeville found it prudent to proffer 200 marks to hold the manor on the same terms as his father.117 His tenure of, or right to, Berkhamsted was seemingly no less exiguous. In 1205 John had granted it to FitzPeter and to the heirs of his second marriage, to a woman named Aveline, a condition which, since they had a son, John FitzGeoffrey, should have excluded William de Mandeville. But in any case the king took possession of the manor on FitzPeter’s death and handed it over to Queen Isabella, who ought to have held it since 1204, since it constituted part of her dower.118 There is no good reason, in fact, to suppose that Mandeville ever held Berkhamsted, and his claim must have derived entirely from the fact of his father’s having done so.

 

Consequences

Not every order for the restitution of lands given in the weeks following 15 June was necessarily issued in response to Clause 52 of Magna Carta. When on 25 July John ordered the sheriff of Hampshire to make arrangements for compensating one Geoffrey Clement for the land at Andover which the king had taken for a fishpond, he was essentially concluding a deal struck the previous year, though he may also have been pleased to have the opportunity to show himself scrupulous in such matters.119 The writ which he sent to the abbot of Bury St Edmunds’ court `after the concord of Runnymede’, ordering the reinstatement of Walter de Rideware in land at Kettlebaston, Suffolk, was not intended to rectify any misdoing on John’s part, but to conclude an exceptionally complicated dower case.120 But he may nevertheless have been glad to be able to show himself performing one of the traditional functions of kingship, and to do so in accordance with the demands for judicial rectitude inherent in much of Magna Carta. Later, in January 1216, after the realm had become engulfed in civil war, John had the satisfaction of ordering the reseisin of a man dispossessed by the barons, when he commanded that John de Bakepuz be put back in possession of `his land of Aslockton [Nottinghamshire] such as he had it before he was disseised by the barons opposed to the lord king’.121 By that time, however, his own orders for the disseising of his enemies, which he started to issue in September 1215, and the latter’s acts in retaliation, risked creating tenurial confusion on a scale which Clause 52 would have been totally unable to remedy. The situation in 1216 was aptly summarised during a lawsuit in the late 1250s, recording the effects of the rivalry of Walter of Goxhill and Robert de Aincourt for land at Hoveringham, also in Nottinghamshire, when `during the war sometimes Robert was in the same land and sometimes Walter, and sometimes the land lay uncultivated, so that neither of them laid a hand on it ...’.122

The right to land was apt to be strongly, and often bitterly, contested in medieval England, unsurprisingly in an age when it was fundamental to status as well as wealth – John’s own youthful sobriquet of `Lackland’ conveyed contempt as well as an accurate comment on his dynastic standing. Few barons are likely to have been guiltless of trying to extend their possessions at the expense of others, whether peers or inferiors, making Clause 60 of the Charter highly relevant in this context. But John’s methods, and those of his subordinates, though they can be seen to have mirrored those of his father and elder brother in some respects, seem to have gone well beyond anything that could be regarded as acceptable, even in so competitive a society, not least in their impact not only on bishops and magnates but also on manorial lords and even the possessors of rents. Whether it was through the misuse of legal procedure, as in the chicanery employed to deprive Henry de Bohun of the honour of Trowbridge, or through the heavy financial demands which helped to justify the dispossession of men like William of Eynsford and Ralph de Greselegh’, or through the exploitation of one tenurial right as a means of absorbing another, which served to deprive Gilbert de Gant of the custody of Hunmanby, or simply in the expression of personal antipathy which surely lay behind the needling of Eustace de Vesci by the withholding of his hunting rights, by such means John created insecurities which inevitably bred widespread hostility, and which led to the barons in their turn using equally reprehensible methods against the king, perhaps best exemplified in William de Mowbray’s spurious claim to York Castle. That this should have happened was symptomatic of the breakdown of relations between king and magnates –with the latter ultimately representing landowning society as a whole – which produced Magna Carta itself, and made Clause 52 part of it.

 

 

1

D. Carpenter, Magna Carta (2015), 290.

2

C. Tyerman, England and the crusades, 1095-1588 (Chicago, 1988), 219; Bracton on the laws and customs of England, 4 vols., ed. G.E. Woodbine, trans. S.E. Thorne (Cambridge, Massachusetts, 1968-77), iv. 76 (fol. 339).

3

The wording of the Article is ambiguous on this point, leaving it unclear whether the bishops were to pronounce on the validity of John’s exemption as a crusader, or on the disseisins committed by Henry II and Richard I.  Against the latter interpretation, it is hard to see why the barons should have regarded the bishops as suitable adjudicators upon such cases, especially when they included royal henchmen like Peter des Roches, Walter de Gray and William of Cornhill, along with a number of past and present agents of government.  For a contrary view see Carpenter, Magna Carta, 347-8; J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 342.

4

W. Stubbs (ed.), Memoriale fratris Walteri de Coventria, 2 vols. (Rolls Series, 1872-3), ii, 219.

5

See Holt, Magna Carta, 109-10.

6

ib., 147-8.

7

PR 11 Henry II (1165), 96; PR 1 John (1199), 16.

8

PR 22 Henry II (1176), 143; PR 1 John (1199), 253.

9

PR 1 John (1199), 209; PR 2 John (1200), 15.

10

PR 5 John (1203), xviii, 103.

11

PR 8 John (1206), 32.

12

T.D. Hardy (ed.), Rotuli Chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 132.

13

C.D. Ross (ed.), The cartulary of Cirencester Abbey, Gloucestershire, 2 vols. (Oxford, 1964), i, nos. 37-8 (pp. 33-4).

14

PR 6 John (1204), 150-1.

15

Curia Regis Rolls vi, 11-14 John, 1210-1212 (1932), 320; R.V. Turner, The king and his courts: the role of John and Henry III in the administration of justice, 1199-1240 (Ithaca, New York, 1968), 163-4; S. Painter, The reign of King John (Baltimore, 1949), 262; Holt, Magna Carta, 206-7.

16

Curia Regis Rolls xii, 9-10 Henry III, 1225-6 (1957), no. 2646 (pp. 528-9).

17

Details from T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 200.

18

T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 143.

19

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 553.

20

Rot.Lit.Claus. i, 215.

21

Ib., 200.

22

Ib., 213, 257; Liber feodorum. The book of fees commonly called Testa de Nevill, 2 vols. in 3 (1920-31), ii, 1460.

23

Rot.Lit.Claus. i, 204.

24

Ib., 213.

25

Ib., 182-3.

26

Ib., 303.

27

P. Dryburgh and B. Hartland (eds.), Calendar of the fine rolls of the reign of Henry III i, 1216-1224 (Woodbridge, 2007), 242 (6/77).  Binnerton is in the Kerrier district of Cornwall.

28

Rot.Lit.Claus. i, 216.

29

Ib., 264.

30

Ib., 200; Book of fees i, 117.

31

Rot.Lit.Claus. i, 244.

32

Cf. Carpenter, Magna Carta, 389.

33

Ib., 215.

34

C.D. Tilley, `The honour of Wallingford, 1066-1300’, unpublished King’s College London doctoral thesis, 2011, accessed through https://kclpure.kcl.ac.uk/portal/, 11 August 2015.

35

Rot.Lit.Claus. i, 216-17.  The word here translated as `awarded’, in Latin adjudicatum, was the same used at the end of September to describe what was explicitly a decision by the twenty-five barons, giving Knaresborough Castle to Nicholas de Stuteville – Holt, Magna Carta, 499..

36

A suggestion made to me by David Carpenter.

37

For details see Carpenter, Magna Carta, 150, 177, 354, 367, 370.

38

Rot.Lit.Claus. i, 216, 219.

39

Ib., 215.

40

R.W. Eyton, Antiquities of Shropshire x (1860), 326-7.

41

Rot.Lit.Claus. i, 211.

42

Ib., 217; Victoria County History of Essex viii (1983), 180.

43

Rot.Lit.Claus. i, 218..

44

Victoria County History of Hampshire iv (1911), 147-9.

45

Rot.Lit.Claus. i, 215.  In 1211 William had successfully proffered six Norwegian hawks for the disposal of his daughter’s marriage and dower, following the death of her first husband, PR 13 John (1211), 6 – I owe this detail to Louise Wilkinson.

46

Ib., 264.

47

Ib., 216.

48

Rot.Ob.Fin., 337.

49

Rot.Lit.Claus. i, 224.

50

See commentary on c. 40, section headed `Law and politics (1): King John and Robert FitzWalter’, subsection (a), `Hertford Castle’.

51

PR 11 John (1209), 149; Victoria County History of Staffordshire v (1959), 79, 119-20.

52

Rot.Lit.Pat., 143.

53

Rot.Lit.Claus. i, 215.

54

PR 13 John (1211), 90.

55

Details from K.J. Stringer, Earl David of Huntingdon: a study in Anglo-Scottish history (Edinburgh, 1985), 49-50, 115-16.

56

Rot.Lit.Claus. i, 216-17 (Godmanchester); Rot.Lit.Pat., 144 (Fotheringhay Castle).

57

Curia Regis Rolls iii, 5-7 John, 1203-1205 (1926), 99-100.

58

Victoria County History of Rutland ii (1935), 268-75.

59

Rot.Lit.Claus. i, 216.

60

Victoria County History of Buckinghamshire iii (1925), 23-4; Holt, Magna Carta, 157-8 and n. 148.

61

Rot.Lit.Claus. i, 216, 218.

62

Rot.Lit.Pat., 143.

63

Rot.Lit.Claus. i, 217.

64

Rot.Ob.Fin., 507-8.

65

PR 3 Henry III (1219), 97; PR 4 Henry III (1220), 152; Calendar of fine rolls i, 105 (3/319).

66

TNA, E 372/69 m. 7 records the final payment.

67

Rot.Lit.Claus. i, 216.

68

Carpenter, Magna Carta, 384; F.R.H. du Boulay, The lordship of Canterbury: an essay on medieval society (1966), 108-9.

69

PR 14 John (1212), 15.

70

Rot.Ob.Fin., 473-4.  On 12 June 1215 Brewer was commanded to give some of Hugh de Aubeville’s lands to William de Avrenges – Rot.Lit.Claus. i, 214.

71

A point made to me by Louise Wilkinson.

72

PR 16 John (1214), 31.

73

Brewer appears to have sold the wardship on to John Marshal, who was recorded in 1214 as having assumed responsibility for the rest of Eynsford’s debt, and who had custody of Hugh de Aubeville’s heir in 1227 – Book of fees ii, 1343.

74

Carpenter, Magna Carta, 382-5.

75

Rot.Lit.Claus. i, 274.

76

Ib., 217.

77

PR 13 John (1211), 91; PR 14 John (1212), 168; PR 16 John (1214), 68, 71.

78

Rot.Lit.Claus. i, 220.

79

PR 2 Richard I (1190), 58.

80

Rot.Chart., 10; Rot.Ob.Fin., 22; PR 1 John (1199), 31; PR 2 John (1200), 123.

81

Shown particularly clearly in PR 16 John (1214), 54-5.

82

Rot.Lit.Claus. i, 216.

83

Details in J.H. Round, The king’s serjeants and officers of state (1911), 132-4.

84

PR 16 John (1214), 9.

85

Calendar of inquisitions post mortem iii, no. 367 (p. 228)

86

Book of fees, i, 125.

87

E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 182-5.

88

Rot.Lit.Claus. i, 215.

89

W. Farrer (ed.), Early Yorkshire charters ii (Edinburgh, 1915), 469-81.

90

Rot.Lit.Claus. i, 216.

91

Loc.cit.

92

Memoriale fratris Walteri de Coventria ii, 221.

93

Rot.Lit.Pat., 105.

94

Holt, Magna Carta, 490-1; M. Tyson (ed.), `The annals of Southwark and Merton’, Surrey Archaeological Collections 36 (1925), 24-57, at 51.

95

Rot.Lit.Pat., 143.

96

Holt, Magna Carta, 167.

97

Rot.Lit.Claus. i, 215.

98

For an example of the kind of record John would have expected to receive see E. Mason (ed.), The Beauchamp cartulary charters, 1100-1268, Pipe Roll Society new series 43 (1980 for 1971-3), no. 361 (p. 205) – an inquest held on 13 January 1207 in the presence of the sheriff of Norfolk, and returned, together with the king’s writ, under the seals of the sheriff and the twelve jurors.

99

Rot.Lit.Pat., 173.

100

Rot.Lit.Claus. i, 245.

101

J.C. Holt, The northerners: a study in the reign of King John (Oxford, 1961), 120.

102

Painter, Reign of King John, 31-5.

103

Details in commentary on c. 40.

104

Painter, Reign of King John, 332-3.

105

Rot.Ob.Fin., 89; PR 3 John (1201), 73; PR 12 John (1210), 195-6.

106

Holt, Magna Carta, 305-6; Painter, Reign of King John, 335-6.

107

R.A. Brown, H.M. Colvin and A.J. Taylor (eds.), The history of the king’s works: the middle ages, 2 vols. (1963), ii, 688.

108

Holt, Magna Carta, 499.

109

Holt, The Northerners, 131-2; Carpenter, Magna Carta, 404.

110

Stringer, Earl David of Huntingdon, 52 (Fotheringhay); Rot.Lit.Pat., 163 (Richmond), 168 (Rockingham), 171-2 (Colchester).  Hertford had to be recaptured from a royalist garrison by Franco-baronial forces late in 1216 – H.G. Hewlett (ed.), Rogeri de Wendover liber qui dictur flores historiarum, 3 vols (Rolls Series, 1886-9), ii, 200.

111

Painter, Reign of King John, 333.

112

PR 31 Henry II (1186), 18.

113

Rot.Ob.Fin., 93; PR 2 John (1200), 48; PR 3 John (1201), 68.  The remaining debt was entered on every years’ pipe roll until 1212, and so was presumably paid, pardoned or dropped in 1213.

114

Rot.Chart., 123.

115

Rot.Lit.Claus. i, 223; Curia Regis Rolls xii, no. 365 (p. 356).  This case is discussed in detail in the commentary on c. 39.

116

Rot.Lit.Claus. i, 217.

117

Victoria County History of Buckinghamshire iii (1925), 6; PR 2 Henry III (1218), 62; PR 3 Henry III (1219), 106.

118

Victoria County History of Hertfordshire ii (1908), 165-6.

119

Rot.Lit.Claus. i, 205, 222.

120

Curia Regis Rolls viii, 3-4 Henry III, 1219-1220 (1938), 16-17.  The lawsuit began no later than 1208, and was not concluded until 1220.

121

Rot.Lit.Claus. i, 245.

122

TNA, KB 26/160 m. 43d.

Referenced in

Clause 55 (The 1215 Magna Carta)

Clause 55 (The 1215 Magna Carta)

Clause 60 (The 1215 Magna Carta)


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Original Latin

LIII

Eundem autem respectum habebimus, et eodem modo, de justicia exhibenda de forestis deafforestandis vel remansuris forestis, quas Henricus pater noster vel Ricardus frater noster afforestaverunt, et de custodiis terrarum quae sunt de alieno feodo, cujusmodi custodias hucusque habuimus occasione feodi quod aliquis de nobis tenuit per servitium militare, et de abbatiis quae fundatae fuerint in feodo alterius quam nostro, in quibus dominus feodi dixerit se jus habere; et cum redierimus, vel si remanserimus a peregrinatione nostra, super hiis conquerentibus plenam justiciam statim exhibebimus.

53

We will have the same respite, and in the same fashion, for doing justice concerning the disafforestation or retention of forests which Henry our father or Richard our brother afforested, and concerning wardships of lands which are part of another fee, wardships which up till now we have had by reason of a fee which someone held of us by knight tenure, and concerning abbeys which were founded on a fee other than our own, in which the lord of the fee has claimed his right. And when we have returned, or if we stay at home without going on our crusade, we will at once do full justice to those complaining of these things.

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Original Latin

LIV

Nullus capiatur nec imprisonetur propter appellum foeminae de morte alterius quam viri sui.

54

No man is to be arrested or imprisoned on account of a woman’s appeal for the death of anyone other than her own husband.

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Referenced in

Tournaments, Ladies and Bears (The Itinerary of King John)


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Original Latin

LV

Omnes fines qui injuste et contra legem terrae facti sunt nobiscum, et omnia amerciamenta facta injuste et contra legem terrae, omnino condonentur, vel fiat inde per judicium viginti quinque baronum de quibus fit mentio inferius in securitate pacis, vel per judicium majoris partis eorumdem, una cum praedicto Stephano Cantuariensi archiepiscopo, si interesse poterit, et aliis quos secum ad hoc vocare voluerit: et si interesse non poterit, nihilominus procedat negotium sine eo, ita quod, si aliquis vel aliqui de praedictis viginti et quinque baronibus fuerint in simili querela, amoveantur quantum ad hoc judicium, et alii loco eorum per residuos de eisdem viginti quinque, tantum ad hoc faciendum electi et jurati substituantur.

55

All fines which have been made with us unjustly and against the law of the land, and all amercements made unjustly and against the law of the land, are to be completely remitted, or dealt with by judgment of the twenty-five barons named below in the security for peace, or by judgment of the greater part of them, together with Stephen, archbishop of Canterbury, if he can attend, and others whom he may wish to convoke to act with him in this. And if he cannot attend, let the business nonetheless proceed without him. On condition, however, that if one or some of the aforesaid twenty-five barons are involved in such a plea, they are to be removed in respect of this judgment, and others chosen and sworn by the rest of the twenty-five to act in their place in this case only.

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Commentary for academic researchers

Purposes and procedures

Clause 55 was one of the longest in the 1215 Magna Carta. Within the Charter it occupied a position differing considerably from that of its equivalent among the Articles of the Barons, where as No. 37 it had appeared some distance from the Article with which it might be thought to have had most in common (No. 25, eventually c. 52), being instead placed seemingly almost at random, between articles dealing respectively with the tenants of escheated honours and the return of hostages and charters (in Magna Carta, Clauses 43 and 49). Dealing with complex and controversial issues, it was one of a number of mostly retrospective clauses which were no doubt intentionally grouped together in the text agreed upon at Runnymede in order to conclude the Charter by providing remedies for past injustices, whether these had been suffered by King John’s English subjects (cc. 52, 53, 55), by Welshmen (cc. 56-7), by the rulers of Wales, headed by Llywelyn ab Iorwerth of Gwynedd (c. 58), or by the young Alexander II, king of Scots (c. 59).

Whereas the similarly retrospective Clause 52 had begun with the conjunction `If’, thereby implying that there could be debate as to whether the disseisins it was intended to rectify had taken place, Clause 55 admitted no such challenge, rather asserting without qualification that fines and amercements had been made unjustly and contrary to law, and that they were to be either pardoned altogether or referred to the judgment of the twenty-five barons of the Charter’s security clause, or of a majority of them. If one of the twenty-five was himself a participant in the proceedings which resulted from such a referral, he was to stand down while the case was heard, with his place being taken by another man whom his remaining colleagues were to choose.1 The clause’s main provisions were partially foreshadowed in some of the Charter’s earlier clauses, notably 20, 21 and 22, prescribing that amercements should be proportionate to the offences they punished, and probably Clauses 3 and 7 as well,2 since both provided for the transmission of property without payment on the part of those who received it (and were also concerned with the dowers, marriage portions and inheritances which largely made up the original substance of the clause ‒ the point is further discussed below). In its basic purpose Clause 55 closely resembled Clause 52, which seems to have been principally intended to enforce Clause 39, and to that end promised the immediate restoration to its owner of any lands, castles, liberties or rights of which he had been dispossessed `without lawful judgment of his peers’. The drafting of that clause had clearly prompted both discussion and amendment, above all to take into account the delay in proceedings to which the king was entitled as a result of his having taken crusader’s vows. No such complicating factor affected the drafting of Clause 55, but comparisons with Article 37 shows that it, too, had been the subject of debate before it could be set down in what was regarded as a satisfactory form.

In one respect, indeed, Clause 55 may have been more favourable to King John than Article 37, in that unlike Clause 52, it did not attempt to extend its remedy to fines and amercements made with or by Henry II and Richard I. The Article contained no chronological markers, and could therefore have been of unlimited application. But Clause 55 was specific that the fines, at least, which were to be reviewed were those which had been made `with us’, so ruling out any attempt to bring up grievances arising from the actions of the king’s brother and father. Much less welcome to King John must have been Clause 55’s extension, by comparison with Article 37, of the range of issues it covered. Both Clause and Article ordered that wrongfully-imposed fines and amercements should be either entirely annulled or referred to the twenty-five barons of the Charter’s penalty clause for reconsideration and, perhaps, modification, but whereas the Article was both precise and limited in the nature of the fines which were to be treated thus, laying down that they were to be those made for dowers, marriages and inheritances, the Clause placed no restrictions on the fines which became liable to challenge and re-examination, but extended its coverage to `all’ fines which could be regarded as having been made unjustly. Dowers, marriages and inheritances were certainly matters of pressing concern to the landholding classes, and many very large fines were made with King John in order to obtain them, but thanks to this change (which may have been made at the last moment, since a group of texts of the Charter, presumably stemming from a late and now-lost draft, take no account of the alteration, but reproduce Article 37 in its place),3 the twenty-five could now also pronounce upon the lawfulness of numerous heavy fines which had been made for benefits not covered by Article 37, ranging from the possession of lands to which the protagonist had no hereditary right to the recovery of the king’s good will and the remission of his anger.

A further difference between Clause and Article, and one likely to be less clear-cut in its effects, related to the involvement of Archbishop Langton. Article 37 took it for granted that the primate would be involved in such debates and negotiations as its provisions gave rise to, along with any other men whom he wished to act alongside him (no doubt mostly, but not necessarily only, other bishops – he might have felt the need for information and counsel from learned and experienced men like Elias of Dereham or his own brother Simon). But while Clause 55 accepted the possibility of Langton’s participation, its drafters did not regard it as essential, declaring firmly that if the archbishop was unable to attend, proceedings could go ahead without him. In all likelihood Langton let it be understood that he would not usually wish to become involved in essentially secular business, while reserving the right to attend deliberations should this seem necessary, perhaps if they involved another bishop (as could have happened in the case of the bishop of Hereford, discussed below) or one of his own tenants.

Clause 55 dealt with fines and amercements together. In theory they were distinct, in that whereas amercements were fiscal penalties imposed by a superior on an inferior party – a lord on a tenant or serf, or the king on a subject, fines were nominally financial settlements between individuals or communities, which concluded disputes or negotiations when one party agreed, or was induced, to make a defined payment to the other for a favour of some kind. But as an analysis of Clause 21 makes clear, John’s overbearing style of government elided the differences between them, and all too often gave fines the penal quality supposedly proper to amercements.4 When discussing fines in the Dialogue of the exchequer, Richard FitzNigel wrote of those who offered the king money for benefits or favours as having `voluntarily (sponte) indebted themselves’ in order to obtain what they wanted,5 and a subject’s eagerness to obtain a benefit might even be entered on the record along with his resulting debt. When Peter de Brus successfully proffered 1000 marks in 1200 to be allowed to reverse an exchange forced on him by Henry II, and so to recover the manor and forest of Danby, it was noted on the fine roll that it was in response to Peter’s `great desire’, and `at his pressing insistence’, that John had been induced to accept his money.6  

But although there were always men and women willing to bid for favours at the king’s disposal, there was also a large element of compulsion in the determining of fines, one, moreover, which probably grew considerably during John’s reign, and it was this which gave the barons grounds for regarding those which had effectively been imposed by the king, rather than negotiated with him, as having been `made unjustly and against the law of the land’. Many of them were indeed very high, and were certainly regarded as excessive. But although it is highly likely that such fines constituted Clause 55’s main target, the barons did not offer that as an explicit reason for annulling or lowering them, but rather the injustice of the manner of their assessment and imposition. By this they probably meant (by reference to Clauses 20 and 21) that they had not been arranged with any reference to the peers, or at any rate the trustworthy neighbours, of those who made them. John’s methods enabled the barons to claim that whether the sums involved were too high or not, they had been fixed in a way which they saw as unlawful, and should therefore be either remitted in full or discussed by the twenty-five, no doubt with a view to their reduction.

In this clause (as in Clause 52) the twenty-five barons assumed the character of a tribunal, empowered to hear a lawsuit (querela) and to investigate the lawfulness of the king’s actions, and then give judgments upon them by majority vote (a practice also sanctioned by the Charter’s security clause). The words used to describe the process whereby substitutes were chosen for such of the twenty-five as stood down to avoid a conflict of interests – they were to be elected and sworn, electi et jurati – recall those used of trial jurors, but whereas unanimity was required of the latter when they gave their verdicts, the voices of only thirteen out of twenty-five barons were to be sufficient to make their judgments binding. A desire to hasten proceedings was probably one reason for this (though Clause 55, unlike Clause 52, did not demand instant action, statim, to rectify King John’s misdeeds), a wish to prevent the king from exploiting any divisions which might arise among the twenty-five, such as might delay or prevent their reaching decisions, was perhaps a more significant one.

Whether John ever appeared before the baronial committee to argue his case over a fine or amercement, either in person or through a representative, is uncertain. The confusion and ultimate breakdown of the exchequer in 1215 meant that no pipe rolls were compiled which could have recorded the remission or reduction of financial penalties which Clause 55 prescribed. That the twenty-five were active in the weeks after 15 June is directly attested by the `Anonymous of Béthune’ (whose account of events concerning the Charter is, however, sometimes demonstrably unreliable), and supported by the king’s orders contained in the chancery rolls for the return of forfeited lands (some of which, however, may well have been given up by John without reference to the twenty-five in the hope of gaining support by a display of well-mannered righteousness).7 That they also concerned themselves with fines and amercements is at least possible, but direct evidence is lacking.

 

The `largeness’ of fines

Where amercements were concerned, the barons may well have had the penalties for offences against the forest laws particularly in mind. If that was so, they were flying in the face of a long-standing royalist position, given formal expression in the Dialogue of the exchequer, which asserted that the forests did not come within the jurisdiction of the law of the land as that was conventionally understood, but were governed solely by the will of the king.8 Seen in that light, Clause 55 could have had no application where the forests were concerned. It seems doubtful, however, that in 1215 the barons took so legalistic a position. Far from accepting that the king exercised a special authority where the forests were concerned, one which ruled extra vires any intervention on their own part, they showed themselves fully prepared, through Clauses 44, 47, 48 and 53 of Magna Carta, to tackle both the extent of the forests and the conduct of the men who administered them. The actions of the northern rebels who rejected the Charter as inadequate, and in the late summer of 1215 launched devastating attacks on the king’s woods and game,9 similarly demonstrated not only the bitterness aroused by the very existence of the royal forests, and by extension, by the methods used to protect them, but also a determination to remedy the grievances associated with them. Neither they nor the other barons who took up arms in 1215 are likely to have felt inhibited by respect for the rights claimed by the crown from including fines and amercements among those grievances.

Financial penalties for infringements of the forest laws could certainly be large, to the extent that perhaps only the king, justifying his actions by reference to the particular status of the forests, could have claimed that they were in any sense proportionate to the offences they punished. Largeness is certainly `a relative matter’,10 but if 100 marks (£66. 13s. 4d. – a sum which, it should be said, would have constituted a well-nigh intolerable burden for very many people) be taken as its yardstick, then among amercements of this amount or more, it is probably true that most were imposed for forest offences, under all the Angevin kings. In the mid-1170s, for instance, sums of 100 marks, £100, 200 marks, 300 marks, and in one case 500 marks (£333. 6s. 8d.) were all exacted De misericordia Regis pro foresta.11 In this, as in much else, King John imitated his father, exploiting the forests to the utmost as a means of raising money, and demanding large sums for poaching and similar offences. The individual amercements imposed in the forest eyres of 1212 were generally modest, but Yorkshire was nonetheless hit hard, with undefined trespasses resulting in 300 marks apiece being demanded from the county, from the city of York and from the town of Beverley, while 200 marks was taken from Anstey wapentake and £100 from both the soke of Snaid and the town of Scarborough.12 The monks of Tintern in Monmouthshire were similarly amerced of 200 marks and two palfreys for an unspecified forest offence.13 Amercements involving similar, or occasionally even larger, sums were imposed at intervals for other offences throughout the reign of King John, but infringements of forest laws and regulations were exploited with a consistent intensity unrivalled among his exactions.

Burdensome though heavy amercements could be, however, whether imposed for forest offences or anything else, there can be little doubt that Clause 55 was principally directed against fines. To outward appearances these were settlements between the king and one or more of his subjects. It is likely that many fines were made in order to avoid heavy amercements, and to that extent may have been less burdensome to those affected. But many fines were not so much negotiated with as imposed by the king, and in general there can be no doubt that they affected more important people and involved much larger sums of money, than amercements did. Using the same criterion for fines as for amercements as to what constituted `largeness’, the number of large fines entered on the pipe rolls, and the amount of money owed from them, fluctuated from year to year. Thus in 1207 ninety-one were entered on the pipe roll, but in 1208 only forty-eight. In 1211 the total was almost as it had been four years earlier, with eighty-six fines of 100 marks or over, but in 1212 only forty-six were recorded, while in 1214 the total rose again to sixty-three. These figures have little meaning unless the size of the relevant fines is also taken into consideration, along with the determination with which they were pursued by the exchequer. The total for 1208 may have been little more than half that of the previous year, but it included twelve fines made to recover the king’s good will which altogether amounted to £5,580,14 while the king’s ability to pardon fines, in whole or in part, and to grant terms of payment demonstrably more favourable to some debtors than others, constituted a valuable weapon in his armoury of patronage. It was also a very visible one, enabling John to make it very clear – dangerously so, it may be thought – who among his leading subjects enjoyed his good will and who did not.

Under Henry II sums of around 1000 marks appear to have been the topmost limit for fines, and the terms for payment were usually generous, though they may have become less so in the last years of the reign. Robert de Ros agreed to pay that amount for the lands of the Yorkshire baron Walter Espec in 1158, and his debt was only cleared by his son in 1182,15 while William de Cahaignis made fine by 1000 marks `that the lord king may remit his anger to him and for confirmation of his charters’ in 1177, and still owed £421. 1s. at the end of Henry’s reign.16 But both Robert de Gant and Earl Waleran of Warwick, fining for their lands in 1185 by 1000 marks and 500 marks respectively, had to hand estates over to the king, to be returned only when their debts were fully paid.17 The beginning of Richard I’s reign produced a number of very large fines – 3000 marks each by Geoffrey FitzPeter and Godfrey de Lucy, bishop of Winchester, 2000 marks apiece by Earl Richard of Clare, Earl William of Arundel and William Marshal,18 and many lower but still substantial sums – and the suppression of Count John’s revolt in 1194 produced more, notably 2000 marks each from two of John’s leading supporters, Gerard de Camville and Hugh de Nonant, bishop of Coventry, and 1500 marks from the city of London.19 The king’s military needs were by this time generating continuous financial pressure, reflected in fines like that of 2000 marks made in 1195 by Bishop Hugh of Lincoln to clear himself and his successors of their obligation to give the king a cloak worth 100 marks each year (and also in the fact that the money was paid within a year),20 one of 2000 marks made in 1197 by Ralph of Cornhill `for having his lands of which he was disseised and the king’s benevolence’,21 and that of 3100 marks (£2066. 13s. 4d.) incurred by Walter de Lacy in 1198 `for having the king’s benevolence and seisin of his land’.22

Numerous other fines made in the last years of Richard’s reign were only a little less heavy, burdening those who made them with debts of several hundred marks, and the same pattern can be seen in the early years of John’s – many fines of between 100 marks and £500, occasionally interspersed with much larger ones. Among the latter were the 2000 marks proffered by William de Mowbray in 1201 `that he may be treated justly and according to the custom of England’,23 Archbishop Hubert Walter’s fine of 4000 marks in 1204 for the wardship of William de Stuteville’s son and heir,24 and Saer de Quincy’s bid of 5000 marks for a share of the lands of the earldom of Leicester a year afterwards,25 while all these were overshadowed by Nicholas de Stuteville’s fine of 10,000 marks, also in 1205, to be allowed to inherit the lands of his elder brother.26 A similar pattern can be observed thereafter. Many `large’ fines were exacted, along with a number of very large ones, and a few which were by any standards inordinate – 10,000 marks proffered by Reginald of Cornhill in 1210,27 and in 1214 fines of 7,000 marks by Peter de Maulay, 10,000 marks by William FitzAlan, and (notoriously) the colossal sum of 20,000 marks which Geoffrey de Mandeville was compelled to promise for his marriage to Isabella of Gloucester, the king’s first wife, and for possession of her lands and rights.28 But although substantial fines might reasonably, even predictably, have been resented by those obliged to pay them, there were also developments during John’s reign, and especially during its later years, in the ways in which fines were treated, ways which seem likely to have added to the antagonisms they aroused, and to have done so at all levels of free society.

 

Pressures on debtors

The earliest of these developments, visible – and growing – from 1200 onwards was the practice of what may be called `topping up’ monetary fines with additional elements in the form of dogs, hawks, and horses of various kinds, above all the riding horses known as palfreys. Although this was not completely unknown under John’s predecessors,29 before his reign it had been more usual for a fine to be estimated in terms either of money or of birds and animals, not of the two together. Fines in the form of animals alone continued to be made in John’s reign. In the year 1204/5, for instance, the king accepted two proffers of 200 chickens. The first, by Hugh de Neville’s wife, is well-known to the point of notoriety. The second, which has attracted less attention, even though it occurs only a few lines after the first in the printed edition, was made by Stephen of Oxford, apparently a middle-ranking member of the royal household,30 `for having a writ requesting A[lice], widow of John Kepeharm, to have him for her husband. And this whether she has him or not.’31 John was plainly determined to have his chickens, although he must have known perfectly well that Alice was unlikely to grant Stephen’s suit, since at almost exactly the same time he accepted her proffer of 100 marks and two palfreys `so that she can be married according to the laws and customs of the town of Oxford and may have what she should have from her said husband’s lands and chattels ...’ – she steadily paid off her fine, and cleared the last instalment in 1211.32 An altogether more substantial fine, indeed indisputably a `large’ one, was made in 1212 by Arnulf of Auckland, an important royal clerk, in the form of no fewer than 140 palfreys, which were to be equipped with saddles, bridles, gilded spurs and head-coverings decorated with peacocks’ feathers;33 its monetary value cannot have been less than £500, and was probably much more. But after 1200, when at least forty instances were entered on the pipe roll, it became increasingly common for palfreys to be given as supplements to cash fines, their number usually depending on the size of the monetary debt – the normal rate apparently came to be one horse for every 100 marks, so that in 1207, for instance, Gerard de Furnival undertook to pay 1500 marks and fifteen palfreys for peace concerning his lands, Roger de Cressy 1200 marks and twelve palfreys for the king’s benevolence and seisin of his lands.34

Many debtors did not have to pay these extra items, some paid at a lower rate, a few at a significantly higher one – in 1207, for instance, Geoffrey Georz proffered 200 marks and four palfreys to obtain pardon of the king’s rancour against him,35 and in 1211 a wardship and marriages cost Roland Bloet 300 marks and seven palfreys.36 Occasional entries on the pipe rolls specifying that these additions were to be paid in the form of livestock37 make it clear that there was normally no danger of the exchequer being intermittently swamped by horses – unless the king’s debtor was instructed otherwise, the extras were to be handed in as cash, an ordinary palfrey being valued at five marks (£3. 6s. 8d.) and a good one at £5, while a warhorse, a destrier, was the equivalent of £20.38

The fact that these extras were not demanded of everyone probably underlined the extent to which those who were targeted were, or could feel themselves to be, the victims of royal hostility, if not outright caprice. Of course they were never of their nature likely to be popular with anybody, and it is probably significant that the practice of demanding them appears to have dwindled considerably in the early years of Henry III’s reign. A few fines for cash and horses together were recorded among the Nova Oblata on the pipe roll for 1219, though some of these, however ostensibly `new’, in fact appear to have originated in the previous reign,39 but none have been noticed in similar entries on the 1224 and 1230 pipe rolls, and only one in that for 1242,40 implying that fines had largely reverted to being made either in money or in livestock. In the years before 1215 additions of this kind are likely to have been resented not only because they increased the amount to be paid, but also because by doing so they added to the difficulties faced by crown debtors in the later years of John’s reign, when the terms for the payment of debts became noticeably more rigorous. At an average rate of five per cent, they would have added significantly to a debt of any substance – Roger de Cressy, for instance, would have had to find another sixty marks, or £40 – but there is no reason to suppose that this was taken into consideration when the size of a fine, and the timetable for its payment, were decided on. The sort of urgency with which payment was increasingly demanded can be illustrated by a case like that of the countess of Warwick, who proffered £1000 and ten palfreys in 1205 for her dower, custody of her children and the right to remain unmarried. She paid £200 and six palfreys at once, and was required to pay the rest of her fine at the rate of £200 per annum. By 1209 she was heavily in arrears, however, and for that reason her lands were taken into the king’s hand – `she was disseised of them on the king’s order because she did not keep her terms at the exchequer for her earlier fine’ – and she had to pay a further £300 to recover them, after which she was expected to pay off the rest of her initial debt at the same rate as before.41

In subsequent years the pressure to pay which the king and his agents exerted upon debtors became still more severe. Thus in November 1213 Hugh de Hodingeseles, lord of half of the Suffolk barony of Cavendish in the right of his wife Basilia, with her proffered 500 marks for her inheritance. They were required to pay fifty marks in ten consecutive instalments over two and a half years, to find pledges for their doing so who were to be natives of the five counties in which the lands in question lay (presumably to make it easier to distrain them if Hugh and Basilia fell behind in their payments), and to give their sons as hostages for their finding those pledges. Even when the boys had been handed over their parents were to receive only half of their lands, the rest, apparently, would be handed over when the pledges had actually been found.42 A month later Warin de Mountchesney, an important landowner in south-east England, proffered 2000 marks for his inheritance and to be quit of debts to Jews. The money was to be paid in just four instalments over two years, and Warin had not only to swear to meet these terms but also to give a charter recording his obligations and to pledge his lands for his fulfilling them, while two other men, one of them his uncle the earl of Arundel, also had to surrender charters for Warin’s honouring his commitments.43

What might happen if debts were not paid, either on time or at all, is shown by the case of the countess of Warwick cited above, and by later examples like Roger Mortimer of Wigmore and his wife Isabella, who in 1211 proffered 3000 marks (£2000) for the wardship and marriage of Walter de Beauchamp of Elmley, the hereditary sheriff of Worcestershire, and agreed to pay the first 2000 marks within two years, in eight instalments of 250 marks each.44 They clearly made strenuous efforts to do so, but at Michaelmas 1214, a few weeks after Roger’s death, £844. 9s. were still owing.45 On 10 July, while he was in Poitou, John had ordered the justiciar, Peter des Roches, to review the state of the fine made by the Mortimers, and if it was in arrears to take Beauchamp’s lands back from them.46 Clearly he did so, for Isabella then managed to scrape 500 marks together and thereby persuaded the king to enter into a new agreement with her on 19 August, under which she recovered her own inheritance (at Oakham in Rutland), her dower, and the lands of Walter de Beauchamp, which she was to hold until the end of November.47 Even then she still owed over £500, which she was later ordered to pay to Falkes de Bréauté, who also took possession of Oakham to support the royalist war effort.48 In 1214 her lands in Rutland had been descended upon by the king’s men, who removed chattels worth £73. 0s. 10d.49

Walter de Beauchamp must have feared that his own inheritance would be treated in similar fashion by the Mortimers, as they struggled to pay their fine, and it was surely at his instance that John’s mandate of 10 July concluded with an order to des Roches that if the lands had not, after all, been taken back into the king’s hand, then he was not to allow them to waste the property. Walter was well advised to do so to take such precautions. After Geoffrey de Mandeville had made his vast fine with the king for Isabella of Gloucester’s lands, also in 1214, he was recorded as felling woods and mortgaging manors in his efforts to meet the king’s terms.50 Although he failed to do so, he was nonetheless recorded as having paid £3582 before civil war broke out,51 a huge sum providing eloquent testimony to the wholeheartedness with which he had tried to raise the money, and also to the likely effects of such endeavours upon the estates concerned, as the pressure exerted by the king upon his debtors in effect compelled them to strip their own assets.

Some debtors were wholly or at least relatively successful in their attempts to pay their fines, contriving to raise large sums in short periods. In 1210, for instance, Robert FitzWalter and Millicent, widow of Richard de Munfichet, proffered 400 marks (and four palfreys) and 1100 marks respectively for wardships, and both had cleared their debts by Michaelmas 1211,52 while although Reginald of Cornhill, whose proffer of 10,000 marks constituted the largest of that year’s fines, failed to meet his terms in full, he had still reduced his debt (helped by his being pardoned 1000 marks of it) by nearly £4,500 by the same date.53 A year later Warin FitzGerold, lord of Stogursey in Somerset and a royal chamberlain, undertook to give 500 marks for the wardship and marriage of his nephew in five six-monthly payments of 100 marks each, and although he could not find all the money, he still made five consecutive payments, some of them of relatively modest sums (one payment in 1212 was of only £16. 2s. 9d.). John may have seen the regularity with which money kept coming into the exchequer as evidence both of Warin’s loyalty and of his determination to pay what he owed, for by Michaelmas 1212 he had pardoned him his shortfall of £76. 13s. 4d.54  

 

The involvement of pledges

The cost to the king’s debtors of meeting such demands should not be calculated only in money, for men like Warin FitzGerold, and others who raised large sums in little time, there must also have been a high price to pay in terms of apprehension and bitterness. And the same must have been true of the pledges whom many such debtors had to find to guarantee payment of what they owed. As was often the case, there were precedents for this practice in earlier reigns. In 1177, for instance, the sheriff of Kent was recorded as having taken pledges from a group of Canterbury moneyers who owed large sums after falling into the king’s mercy,55 and William of Yarmouth’s fine of 500 marks in 1197, `for having the king’s benevolence and his lands and possessions’, was guaranteed by at least nine pledges.56 But John took it to unprecedented lengths, with literally hundreds of people, from every rank of society from earls and barons downwards, becoming obliged to share responsibility with the principal debtors for the payment of fines made with himself. The practice was brought under control in Clause 9 of Magna Carta, which forbade the king the king to distrain the pledges of any debtor who himself had the wherewithal to pay what he owed. Before 1215, however, the danger of distraint for other men’s fines was a very real one. When Geoffrey de Sacheville and Ralph de Marci, landowners in south-east England, made fine by 1000 marks in 1207 to recover the king’s good will, apparently following a forest offence, their debt was paid off in the next three years almost entirely by their pledges, around eighty in number, Geoffrey and Ralph themselves being recorded as contributing only £14.18s.57

It would be rash to assume that nobody’s arm was ever twisted by the king to persuade him to act as the guarantor of another man’s debt, but it seems likely that his pledges were usually chosen by the principal debtor from among his friends and allies. Thus many of William de Mowbray’s sureties in 1209 were northern barons like himself, while Peter de Maulay’s in 1214 are nearly all identifiable as fellow henchmen of the king. But the fact that acting as a security was nominally voluntary did not make it any more acceptable, or less of a risk, to the men involved, and the effect of the king’s increasingly determined efforts to secure payment of all he was owed, when it was due, must have been to spread far and wide not only the burden of indebtedness, but also the fear of its consequences. Roger FitzAdam, dismissed as sheriff of Hampshire in 1207, had to name hundreds of sureties for his fine of 1000 marks to recover the king’s good will, many of them men and women of little standing and, probably, substance.58 Geoffrey de Lucy, making fine by 3000 marks in the same year for his marriage to an heiress, found 103 pledges for his paying what he owed, each one being responsible for a specified amount, from two marks upwards. The largest sums were charged to earls and barons – the earls of Winchester and Arundel, Robert FitzWalter, and Walter de Lacy guaranteed 100 marks each, while William of Huntingfield and Aubrey de Vere accepted responsibility for fifty marks apiece and William de Briouze and Robert de Vieuxpont for forty marks each.59 At least three of Geoffrey’s pledges subsequently thought it prudent to buy themselves out of liability for the payment of his debt.60

Sometimes a debtor’s pledges were called upon to underwrite only a part of what he owed. William de Mowbray, coming under pressure in 1209 to clear the substantial remains of the 2000 mark fine he had made in 1201, found nine pledges for the payment of only 800 of the 1740 marks he still owed – the seven men who guaranteed 100 marks each included Robert de Ros, Eustace de Vesci, Roger de Muntbegun and Roger de Lacy, as well as the earl of Warenne and Robert de Vieuxpont, while the earl of Winchester stood surety for fifty marks.61 Peter de Maulay, proffering 7000 marks in 1214 for his marriage to an heiress, found eight pledges for 5,300 marks of his debt, and had to offer all his own land as surety for the payment of the remainder.62 But William FitzAlan, whose proffer of 10,000 marks for the right to succeed to his father’s lands was recorded in the same year, was obliged to find sureties for the entire debt. William, who was still a minor, seems to have been unable to meet his obligations, whereupon his fine was set aside and his father’s lands, along with his own marriage, were granted to Thomas of Erdington, who undertook to pay 5000 marks for them – no doubt a more realistic valuation. He, too, had to find pledges for payment. The mutilation of the fine roll makes it impossible to be certain of the terms of payment, but it would appear that Erdington was only to receive tenure of the FitzAlan lands when he had given security for the first 3000 marks of his debt, of which 2000 marks were to be paid within a year. The recorded guarantors included Hubert de Burgh, who underwrote 300 marks, and William of Huntingfield, Richard de Muntfichet, William de Mandeville and John FitzHugh, who stood surety for 100 marks apiece.63

 

Reactions

Not all the men who guaranteed the payment of fines in this way became the king’s enemies in 1215 and after, but it is still noteworthy that those named as pledges in the previous section included seven of the twenty-five barons of Magna Carta’s security clause, along with the brothers and heirs of two more and the father of a third. All these men had other grounds for hostility to King John, but the danger of their becoming responsible for the part-payment of the substantial debts which other men had incurred in their dealings with the king, as a result of his using methods which effectively made them his fiscal hostages, could reasonably have constituted an additional grievance. John presumably believed that in sharing out responsibility for the considerable debts generated by fines made with himself he was taking well-advised precautions to ensure that his demands were met. But as his demands for pledges for other people’s debts ramified throughout society they must also have given rise to widespread anxiety and fear, alienating a growing number of his subjects without necessarily augmenting his revenues. Few of the very large fines made in the last years of his reign were paid in full, or indeed at all. Although Geoffrey de Mandeville did manage to pay just over a quarter of his colossal fine, John probably realised that he was not going to wring any more out of the earl, for he soon conveyed the bulk of the debt to Archbishop Langton, and left it to the primate to make his own arrangements for securing payment.64 William FitzAlan’s fine proved abortive, and neither Thomas of Erdington, who died in 1218, nor his heirs, appear to have made any serious effort to pay Thomas’s fine for custody of the FitzAlan lands. Peter de Maulay’s fine for his marriage brought only indirect benefits for the exchequer, since it was eventually written off by being set against Peter’s expenditure on the defence of Corfe Castle during the civil war.65

The king’s demands, and the urgency with which he pressed them, may indeed have sometimes bred confusion within his own administration. In 1210 Master Henry of Yarmouth made fine by 500 marks to have the king’s benevolence.66 In the following year he himself paid nothing, but twelve of his pledges, paying sums ranging from 10s. to £8, reduced his debt by £39. 6s. 8d., while by Michaelmas 1212 a further £26. 10s. 4d. were paid, again entirely by Henry’s pledges.67 His losing the king’s good will was probably due to his alleged involvement in disturbances arising from a quarrel between the men of Hastings and Yarmouth.68 The resulting fine may well have been disproportionate to the offence, it was certainly far beyond Master Henry’s ability to pay – his title of magister raises the possibility that he had an ecclesiastical benefice, though no evidence for one has been found, but his known lay estate consisted only of a tiny property at Tunstall, a few miles west of Yarmouth, and possibly an interest in a half-messuage in Yarmouth itself.69 Perhaps Henry protested, or perhaps the sheriff of Norfolk drew attention to the sheer pointlessness of trying to raise the rest of the money, for on 4 November 1213 the barons of the exchequer were ordered to put a stop on the demands they were making of Henry and his pledges, `until it has been more fully inquired wherefore and for what he owed those debts to the lord king’,70 suggesting not only that the fine was inordinate, but also that the money had been collected without anybody knowing why it was due. As it was, the order of 1213 brought an end to attempts to raise any more. Bureaucratic inertia kept the remaining debt on the pipe rolls until at least 1242,71 but nothing further was paid to reduce it. Meanwhile by 9 November 1215 Henry of Yarmouth had joined the rebellion against King John.72

It is easy to see how fines made with the king, both in their scale and in their consequences, could have an impact extending well beyond the men and women who actually made them, rippling out to engulf the much greater number of people, at all levels of society, who stood surety for their payment. As the fines became heavier, and the pressure to pay them grew more intense, while the ramification of their effects extended ever further, so by 1215 there must have been a very widespread demand – attested by Clause 55 itself – for their annulment or modification. How far any theoretical justification was found, or proposed, for setting aside the contractual agreements inherent in fines made between the king and his subjects is unknown. Men familiar with Roman law could have invoked the principle of laesio enormis.73 Originally devised to protect people forced to sell land for less than it was worth, by the end of the twelfth century it had been extended to defend those who bought as well, whether land or any other commodity, making it possible for them to have purchases cancelled or payments refunded.

The yardstick whereby the rightfulness of sales and purchases were judged was the `just price’, a concept which would certainly have been familiar to Langton and his fellow canonists for whom the just price was in effect the current market price, arrived at by free bargaining between the parties to an agreement. To take anything more than that, they asserted, was a sin, an offence against the divine law, and restitution should be made for it. In commenting on the huge fine made by Nicholas de Stuteville , Sir James Holt argued that in such a case `there could be no complaint against the offer ... except for its size ...’, and that the king’s opponents `were equating the unjust fine with the expensive one ...’.74 In fact they may have had good reason for doing so, since it is hard to imagine any criterion by which fines like those made by Stuteville or Geoffrey de Mandeville could possibly have embodied `just’ prices for the properties conveyed by them – rather they, and many others like them, were either punitive impositions or simply money-raising exploitations of royal power, of a kind which less than twenty years later King John’s own son was to condemn as made `more by will than by any reason’.75 It seems possible that Clause 55 contained an oblique reference to the concept of the just price, as well as an overt condemnation of fines and amercements exacted by the king, when it referred to those which had been made `unjustly’, as well as contrary to the law of the land.

Whether or not any reference was made either to laesio enormis or to the idea of the just price, what probably mattered most in mid-June 1215 was that John had himself effectively conceded that his adversaries had a case on the substance of Clause 55, when on 10 May he let it be known that he had offered the judgment of his court on the fines made with him by Geoffrey de Mandeville and Giles de Briouze, bishop of Hereford.76 Mandeville’s fine is discussed above. Briouze, the second son of the William de Briouze ruined in 1210 by King John, appears to have wanted to recover his father’s lands on behalf of his nephews, the under-age sons of his elder brother, another William de Briouze, whom John had had starved to death in the latter year. £6000, according to the Crowland chronicler, was the fine he made to obtain them, probably shortly before 5 March 1215.77 Seen against the background of his family’s dealings with King John, and of his own absence from his diocese between 1208 and 1213, this was a very large sum, and Briouze therefore set about reducing it. Extended discussions followed, concluded only on 20 October 1215, when the bishop was given seisin of all his father’s lands and tenements.78

Bishop Giles had had to negotiate a reduced fine to obtain them, but unfortunately there is no surviving record of its amount. He died on 17 November 1215,79 and in the following May his younger brother Reginald was allowed to step into his shoes, being granted his father’s lands `by the same fine and the same covenant which the lord bishop G. your brother made with us for having the same land ...’.80 In the event the agreement failed to secure Reginald’s loyalty, and despite efforts to win him to the king’s side81 he was overtly in rebellion by mid-September.82 But Henry III’s minority government was anxious to win back the allegiance of a man who was potentially a magnate on both sides of the Irish Sea, so much so that it wrote to him in March 1217 pleading with him to `return to our fealty and service without delay and difficulty’, promising him full restitution of all his rights `without money being given to us ...’.83 Three months later Briouze came to King Henry’s peace.84 He was granted all his father’s lands in England and Ireland, and also, it may be presumed, remission of the fine made by his brother with King John and then transferred to himself – no further reference was made to it, and it was not entered on any surviving exchequer record. But although its size is unknown, there is no evidence that in 1215 either the king’s court or the twenty-five barons played any part in settling it – it was the king and the bishop alone who, as recorded, agreed upon the amount the latter was to pay.

As already noticed, there is in fact no certain evidence that the twenty-five played a part in cancelling or reducing anybody’s amercement or fine. It has been suggested, indeed, that it was under Clause 55 that the twenty-five awarded Knaresborough Castle to Nicholas de Stuteville, who had surrendered it to King John as security for the fine he made in 1205 and was unable thereafter to redeem it. Nicholas, by this interpretation, had appealed to the judgment of the twenty-five on the grounds that his fine had been unjust and unlawful, and they then found in his favour.85 But although Stuteville undeniably had powerful incentives for having his fine quashed, the writ of 30 September 1215 which recorded the baronial judgment and ordered Brian de Lisle to hand the castle over to Stuteville made no mention of the latter’s debt,86 and by declaring that he was to be given the castle `as his right’ makes it more likely that the decision was based on Clause 52, which listed both castles and rights among the possessions which King John was to restore to those whom he had dispossessed of them, and which were also to be subject to the decision of the twenty-five. Since Knaresborough had unquestionably come into the king’s hands, Stuteville could just as plausibly have claimed to have been disseised of it, and in doing so have avoided any potentially awkward counter-arguments raised on the king’s behalf concerning the supposedly consensual nature of his original fine.

Clause 55 dealt only with existing amercements and fines, and did not suggest that any of those imposed or agreed to in the past should be paid back. In the years after 1216 some of the fines which the barons must have had in mind when the Clause was drafted were in fact paid, at least in part, but others, although repeatedly entered on the pipe rolls, seem to have been ignored, suggesting, perhaps, that although Clause 55 was dropped from the re-issues of Magna Carta, an awareness of it, and of the issues it had raised, lingered in people’s minds. But so too may have done the problems of outlook and interpretation which could have laid it open to objection by the king and his agents. What probably mattered most, however, was the fact that although it dealt with matters of pressing concern to the barons in 1215, and aimed to remedy what had been to all appearances flagrant abuses of royal power, as far as the future was concerned its substance was very largely covered by other clauses. Since the latter proved effective in defending the interests of the king’s subjects, helping to ensure, among other things, that John’s successors did not demand huge fines like those imposed before 1215,87 Clause 55 could be dispensed with.

 

1

It is noteworthy that no such provision for the exclusion of interested parties was made in Clause 52.

2

A point I owe to Paul Brand.

3

D.A. Carpenter, Magna Carta (2015), 19-21, and id., 'The Copies of Magna Carta: I. A late thirteenth-century statute book: Huntington Library California MS. H.M. 25782, fos 1-6v, fully analysed in V.H. Galbraith, ‘A draft of Magna Carta (1215)’, Proceedings of the British Academy (53, 1967), pp.345-60. ', The Magna Carta Project [http://magnacarta.cmp.uea.ac.uk/read/magna_carta_copies/I__A_late_thirteenth-century_statute_book__Huntington_Library_California_MS__H_M__25782___fos_1-6v__fully_analysed_in_V_H__Galbraith___A_draft_of_Magna_Carta__1215____Proceedings_of_the_British_Academy__53__1967___pp_345-60__  accessed 19 February 2016]

4

See commentary on Clause 21, under the heading `Amercements and penal fines’.

5

E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 178-9.  The translation has turned the plural of the Latin into singular in English.

6

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 109-10; PR 3 John (1201), 159.  For the background see J.C. Holt, The Northerners: a study in the reign of King John (Oxford, 1961), 179-81.

7

These points are discussed in the commentary on Clause 52, in the section headed `The role of the twenty-five’.

8

Dialogus de Scaccario, 80-1.

9

W. Stubbs (ed.), Memoriale fratris Walteri de Coventria, 2 vols. (Rolls Series, 1872-3), ii. 222-3.

10

The phrase is that J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 365.

11

Details on PR 22 Henry II (1176), 22, 25, 30-3, 51-3, 93-7, 112-18, 176-8, 193-7.

12

PR 14 John (1212), 38.

13

Ib., 145.

14

Carpenter, Magna Carta,  224.  See also N. Barratt, `The revenues of King John’, English Historical Review 111 (1996), 835-55, especially 846-7.

15

PR 2-4 Henry II (1155-9), 146; PR 29 Henry II (1182), 37.

16

PR 23 Henry II (1177), 95; PR 1 Richard I (1190), 98.  William’s debt was recorded for the last time in 1191, when he still owed £414. 13s., PR 3-4 Richard I (1191-2), 154.

17

PR 31 Henry II (1185), 91-2, 149

18

PR 2 Richard I (1190), 102 (Clare), 111 (FitzPeter), 129 (Arundel), 136 (Lucy), 144-5 (Marshal – half of his fine was pardoned).

19

PR 6 Richard I (1194), 118 (Camville), 182 (London); PR 7 Richard I (1195), 191 (Nonant).

20

Ib., 159; D.L. Douie and H. Farmer (eds. and trans.), The life of St Hugh of  Lincoln, 2 vols. (1961-2), ii. 33-7.

21

PR 9 Richard I (1197), 166-7.

22

PR 10 Richard I (1198), 213-14.

23

PR 3 John (1201), 157.

24

PR 6 John (1204), 191-2.

25

PR 7 John (1205), 265.

26

Ib., 59.

27

PR 12 John (1210), 120.

28

PR 16 John (1212), 10 (Mandeville), 94 (Maulay), 120 (FitzAlan – this last did not take effect).

29

E.g. PR 31 Henry II (1185), 92; PR 3-4 Richard I (1191-2), 173.

30

He may have served in the royal stables – T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 66.

31

Rot.Ob.Fin., 275-6.

32

PR 7 John (1205), 151; PR 13 John (1211), 9.  This case, when taken together with the later proffer made by Henry de Fontibus – PR 10 John (1208), 155 – suggests that John could be persuaded to act as something between a matrimonial bureau and a dating agency!

33

PR 14 John (1212), 48.  This spectacular proffer was recorded only as being made ad honorem suum ‒ perhaps Arnulf’s reputation had been compromised in some way.

34

PR 9 John (1207), 74 (Furnival), 177-8 (Cressy).

35

Ib., 124.

36

Ib., 176.

37

E.g. PR 13 John (1211), 13, a fine by the earl of Winchester of two good palfreys non in denariis set in equis.

38

Ib., 117..

39

For instance PR 3 Henry III (1219), 99 ‒ three fines in cash and palfreys under the heading of Nova Oblata, but made for the grace of King John.

40

H.L. Cannon (ed.), The great roll of the pipe for the twenty-sixth year of the reign of King Henry III: A.D. 1241-1242,  Yale Historical Publications, manuscripts and edited texts 5 (1918), 95.  A detailed search among the printed and unprinted pipe rolls of the years after 1216 would doubtless find more examples of fines made in money and animals together, but it seems certain that they were far less frequently made with Henry III than with his father.

41

PR 7 John (1205), 33; PR 11 John (1209), 19.

42

Rot.Ob.Fin., 507; PR 16 John (1214), 113.

43

Rot.Ob.Fin., 514-15; PR 16 John (1214), 31.

44

PR 13 John (1211), 273.

45

PR 14 John (1212), 135; PR 16 John (1214), 155.

46

Rot.Lit.Claus. i, 168.

47

Ib., 170, 208.

48

T.D.Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.); Patent rolls of the reign of Henry III, 1216-1225, 29; P. Dryburgh and B. Hartland (eds.), Calendar of the fine rolls of the reign of Henry III i, 1216-1224 (Woodbridge, 2007), 39 (2/180).

49

PR 16 John (1214), 155; PR 5 Henry III (1221), 240.

50

H.R. Luard (ed.), `Annales de Dunstaplia’ in Annales monastici, 5 vols. (Rolls Series, 1864-9), iii. 45.

51

TNA, E 372/69 m. 8. 

52

PR 12 John (1210), 203; PR 13 John (1211), 119 (FitzWalter); PR 12 John (1210), 203; PR 13 John (1211), 119 (Munfichet).

53

PR 12 John (1210), 120; PR 13 John (1211), 238.

54

PR 13 John (1211), 168; PR 14 John (1212), 53, 150.

55

PR 23 Henry II (1177), 208.

56

PR 9 Richard I (1197), 233-4.

57

For details see commentary on Clause 9, Section (c), `Pressure on pledges’.

58

PR 9 John (1207), 149; Rot.Ob.Fin., 447-57.

59

PR 9 John (1207), 148; Rot.Ob.Fin., 458-9.

60

PR 9 John (1207), 41; PR 11 John (1209), 173, 180.

61

PR 11 John (1209), 130-1.  See also Holt, The Northerners, 75-6.

62

PR 16 John (1214), 94.

63

Ib., 120-1; Rot.Ob.Fin., 531-2; R.W. Eyton, Antiquities of Shropshire vii (1858), 247-50.

64

D.A. Carpenter, `Archbishop Langton and Magna Carta: his contribution, his doubts and his hypocrisy’, English Historical Review 126 (2011), 1041-65, at 1058-62.

65

PR 5 Henry III (1221), 95.  For the circumstances see D.A. Carpenter, The minority of Henry III (1990), 256.

66

PR 12 John (1210), 33.

67

PR 13 John (1211), 24; PR 14 John (1212), 177.

68

Curia Regis Rolls vi, 11-14 John, 1210-1212 (1932), 53.

69

Rot.Lit.Claus. i, 390-1; Curia Regis Rolls iii, 5-7 John, 1203-1205 (1926), 217.

70

Rot.Ob.Fin., 502.

71

PR 26 Henry III (1242), 201.

72

Rot.Lit.Claus. i, 235.

73

For laesio enormis and the just price I have followed J.W. Baldwin, The medieval theories of the just price: Romanists, canonists and theologians of the twelfth and thirteenth centuries, Transactions of the American Philosophical Society 49:4 (1959)

74

Holt, Magna Carta, 365.

75

M. Clasby, `The Abbot, the Royal Will and Magna Carta: the amercement of the Abbot of St Albans for non-attendance at the common summons of the Yorkshire Forest Eyre in 1212’, accessed at http://www.finerollshenry3.org.uk/content/month/fm-09-2009.html

76

Rot.Lit.Pat., 141.

77

W. Stubbs (ed.), Memoriale fratris Walteri de Coventria, 2 vols (Rolls Series, 1872-3), ii. 225; Rot.Lit.Claus. i, 189.  The fact that the chronicler refers to Briouze’s fine in his account of events during the autumn of 1215 does not have to mean that it was made at that time.  In the same passage Geoffrey de Mandeville is recorded as having married Isabella of Gloucester `recently’ (nuper), though the marriage is known to have been agreed upon at the end of 1213.

78

Holt, Magna Carta, 363-4; Rot.Lit.Claus. i, 222; Rot.Lit.Pat., 157.

79

Julia Barrow, `Briouze, Giles de (c. 1170-1215)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008 [http://www.oxforddnb.com/view/article/50344, accessed 29 Oct 2015]

80

Rot.Lit.Pat., 184.

81

Ib., 184, 192.

82

Rot.Lit.Claus. i, 288.

83

Patent rolls of the reign of Henry III, 1216-1225, 109-110.

84

Ib., 72-3.

85

Carpenter, Magna Carta, 392-4.

86

Holt, Magna Carta, 499.  The debt was still being recorded in government records in 1333, ib., 306.

87

Details in Carpenter, Magna Carta, 458-9.

Referenced in

Rochester week two, the siege of Norham and the return of Giles de Braose (The Itinerary of King John)


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Original Latin

LVI

Si nos dissaisivimus vel elongavimus Walenses de terris vel libertatibus vel rebus aliis, sine legali judicio parium suorum, in Anglia vel in Wallia, eis statim reddantur; et si contentio super hoc orta fuerit, tunc inde fiat in Marchia per judicium parium suorum, de tenementis Angliae secundum legem Angliae, de tenementis Walliae secundum legem Walliae, de tenementis Marchiae secundum legem Marchiae. Idem facient Walenses nobis et nostris.

56

If we have disseised or dispossessed Welshmen of lands or liberties or anything else, without lawful judgment of their peers, in England or in Wales, they are to be returned to them at once. And if a dispute arises about this, then it is to be dealt with on the March by judgment of their peers – for English tenements according to the law of England, for Welsh tenements according to the law of Wales, for tenements in the March according to the law of the March. And the Welsh are to do the same for us and our men.

Audio commentary

Referenced in

Clause 60 (The 1215 Magna Carta)


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Original Latin

LVII

De omnibus autem illis de quibus aliquis Walensium dissaisitus fuerit vel elongatus sine legali judicio parium suorum, per Henricum regem patrem nostrum vel Ricardum regem fratrem nostrum, quae nos in manu nostra habemus, vel quae alii tenent quae nos oporteat warantizare, respectum habebimus usque ad communem terminum crucesignatorum, illis exceptis de quibus placitum motum fuit vel inquisitio facta per praeceptum nostrum ante susceptionem crucis nostrae: cum autem redierimus, vel si forte remanserimus a peregrinatione nostra, statim eis inde plenam justiciam exhibebimus, secundum leges Walensium et partes praedictas.

57

With regard, however, to all those possessions of which any Welshman was disseised or dispossessed without lawful judgment of his peers by King Henry our father or King Richard our brother, and which we have in our hand, or which others hold and which we ought to warrant, we will have a respite during the usual term [of exemption] of crusaders, except for those matters over which a plea was begun or an inquest held on our order before our taking the cross. But when we have returned, or if perchance we have stayed at home without going on crusade, then we will at once do full justice according to the law of Wales and of the parts aforesaid.


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Original Latin

LVIII

Nos reddemus filium Lewelini statim, et omnes obsides de Wallia, et cartas quae nobis liberatae fuerunt in securitatem pacis.

58

We will at once surrender the son of Llywelyn and all hostages from Wales, and the charters which were handed over to us as security for peace.

Referenced in

Clause 60 (The 1215 Magna Carta)

John travels to Monmouth (The Itinerary of King John)


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Original Latin

LIX

Nos faciemus Alexandro regi Scottorum de sororibus suis, et obsidibus reddendis, et libertatibus suis, et jure suo, secundum formam in qua faciemus aliis baronibus nostris Angliae, nisi aliter esse debeat per cartas quas habemus de Willelmo patre ipsius, quondam rege Scottorum; et hoc erit per judicium parium suorum in curia nostra.

59

We will deal with Alexander, king of Scots, concerning the return of his sisters and hostages, and his liberties and right, in the same manner in which we deal with our other barons of England, unless it should be otherwise under the charters which we have from his father William, former king of Scots. And this will be by judgment of his peers in our court.

Audio commentary


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Original Latin

LX

Omnes autem istas consuetudines praedictas et libertates quas nos concessimus in regno nostro tenendas quantum ad nos pertinet erga nostros, omnes de regno nostro, tam clerici quam laici, observent quantum ad se pertinent erga suos.

60

Moreover, all the aforesaid customs and liberties, which we have granted to be maintained in our kingdom as far as we are concerned with regard to our own men, all the men of our kingdom, both clergy and laity, are also to observe as far as they are concerned them with regard to their own men.

Audio commentary

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Commentary for academic researchers

Baronial aims

Clause 60 differs only slightly from its equivalent (no. 48) among the Articles of the Barons. The king’s role as grantor was lightly underlined by his use of the royal plural, replacing the impersonal rex of the Article (a change made throughout Magna Carta, however), and by the stipulation that the clause was to be observed in `our’ rather than `the’ kingdom. But the two were identical at all essential points, including the words chosen to demonstrate the Clause’s all-embracing nature. The grant in each document of all the `customs and liberties’ transmitted by Magna Carta must have been intended to cover both those time-honoured actions and procedures which King John (and by implication his father and brother as well) was regarded as having slighted and which the Charter now reinstated (`customs’), and also such innovatory measures as it contained and could be regarded as having been created by royal fiat (`liberties’), whether these were intended to remedy grievances or to extend recently-introduced practice.1 There were to be no exceptions to the remit of the Clause.

As far as the purpose of Clause 60 was concerned, it has been generally regarded as embodying a necessary concession made not so much by King John as by his baronial opponents, to secure the continued support of their allies, followers and tenants, `the free men of our kingdom’ to whom Magna Carta was granted at the outset, and without whose backing it might never have been conceded. Much in the Charter was ostensibly intended to benefit only the magnates. But discontent with, and resistance to, royal government had come to extend far outside the ranks of the baronage, not least, it may be assumed, because the financial pressure which John imposed upon his tenants-in-chief was such that they could only meet his demands by exerting a corresponding pressure upon those beneath them. The massive reliefs sometimes demanded by the king, for instance, must often have resulted in the lords who paid them having to extract considerable sums from their tenants, who as a result demanded a share of the concessions forced from King John in 1215. Clause 60 would both satisfy their expectations and ensure that any disappointment over what was achieved did not cause opposition to the king to fragment.

All this is doubtless true, but there are complicating factors. Many tenants-in-chief numbered other tenants-in-chief among their subtenants, so it should not be automatically assumed that the dealings of great men with their inferiors was all that Clause 60 was about. A note on the roll of the 1199 Staffordshire eyre recording that Earl Ranulf of Chester was in mercy `for the disseisin which he did against John Lestrange’,2 shows how Clause 60 could have been the means of affording redress to a man of considerable local power after he fell out with one of the greatest men in the kingdom – Lestrange was an important marcher baron who held land of Ranulf at Bradnop near Leek, and seems to have offended the earl by granting some of it away.3

But although though such disputes were not uncommon, it nevertheless seems likely that the Clause was indeed principally concerned to extend the provisions of Magna Carta to the tenants of the men who had taken the lead in extracting them from King John, and by extension, to all free men who claimed to have suffered injustice in their dealings with their superiors. The Clause may not have been included without some misgivings, however. The use of the word autem, a conjunction here translated as `moreover’,4 may have been intended to separate Clause 60 from its predecessors, from which it differed in requiring no concession on the part of the king, and also to indicate that it was something of an afterthought. For despite the Clause’s appearance among the Articles of the Barons, there is at least one piece of evidence to suggest that it did not originally form part of the thinking of the rebels concerning the concessions which they set out to obtain from the king. The so-called `Unknown Charter’ was almost certainly a product of a preliminary stage in the negotiations between king and barons, compiled in the early months of 1215 and containing demands of which some were taken into Magna Carta, while others may have been dropped only when the Great Charter was finally drawn up. It was based upon, and has been preserved with, a copy of the charter which Henry I granted to his barons and tenants-in-chief following his coronation in 1100. In that as in other copies, two of its clauses, dealing with reliefs (c. 2) and the treatment of widows (c. 4), concluded by ordering its beneficiaries to extend the new king’s grant to their own men. These ancillary concessions were not, however, carried over into the equivalent clauses of the `Unknown Charter’, from which it could be argued that the barons who drew up the latter had at this stage no wish to extend to those beneath them the rights which they were demanding for themselves.5

 

The king’s interest

Baronial sub-tenants stood to gain from the inclusion of c. 60 in Magna Carta, but so, too, may the king have done. Without explicitly saying so, he acquired a positive interest in both its inclusion and its enforcement by the provision that the clause was to be observed by `all the men of our kingdom, both clergy and laity’, which thus brought within its scope every lord with free tenants,6 and not just the tenants-in-chief.7 Clause 61, the `security clause’, laid down that twenty-five barons were to be chosen who should enforce the Charter against infringements by the king himself, his justiciar, his bailiffs and his servants, but it said nothing about their correcting either their own delinquencies, or those of other barons and their agents. Possibly baronial misgivings led to the issue being put to one side, or perhaps the sub-tenants, having secured the Clause’s addition to the Charter, were then content to leave its implementation to be discussed and defined at a later date.8 Be that as it may, in the immediate circumstances of 1215 it is hard to see how Clause 60 could have been implemented by anyone other than the king, either as a result of direct appeals to him for justice, as seems to have happened in 1225,9 or through actions in his courts, perhaps through presentments made under additions to the articles of the eyre.

John might well have enjoyed posing as the protector of lesser free men against oppression by their superiors, and he would surely have relished the prospects for intervention in baronial affairs which Clause 60 ostensibly offered him. Again there were to be no exceptions, by its application to `all the men of the kingdom’ the Clause ensured that there could no sheltering behind franchises, whether small or great, at a time when their holders were increasingly concerned to maintain their rights against royal officials – references to the privilege of `return of writs’ are first recorded around the end of the twelfth century.10 As far as the application of Clause 60 was concerned, the actions of any lord with free tenants became open to challenge, up to and including those of the earl of Chester and the bishop of Durham, with their well-nigh omni-competent liberties. And indeed, Earl Ranulf of Chester quickly fell into line behind King John when, shortly after the issue of Magna Carta, he made his own grant of liberties to the men of Cheshire and extended its concessions (described as `liberties’ alone, with no reference to `customs’) directly to his palatinate’s under-tenants, doing so, indeed, rather more clearly and forcefully than Clause 60 had done.11

By creating a situation in which, as it would seem, dissatisfied sub-tenants could invoke the king’s intervention against their lords, Clause 60 had the potential to open the way for an extension of royal authority, rather than to limit that authority’s encroachment on baronial rights. The expansion of government under Henry II and his successors was already working to this end. The assize of novel disseisin of 1166 had among its principal aims the protection of sub-tenants against dispossession by their lords, who could be prelates as well as laymen.12 A reinforcement of the doctrine of inalienability in the early years of Henry’s reign led to vigorous efforts by the bishops to recover lands lost in Stephen’s reign, and many disseisins resulted.13 Lords and their agents had long been subject to royal discipline, as shown by the Inquest of Sheriffs of 1170, which investigated not only the misdeeds of royal officers but also those of `the lords of the vills or their bailiffs’.14 Indeed, by 1215 the king had long been accustomed to bypassing the magnates altogether in order to demand the obedience and loyalty of all his free subjects. The assize of arms of 1181, for instance, had required all free men and burgesses to swear allegiance to Henry II,15 while in 1209 John himself had demanded oaths of allegiance from every free adult male in England.16

It would have been in keeping with this trend that Clause 60 gave the king an apparently unlimited warrant for intruding his power into the dealings of his tenants-in-chief with their sub-tenants. Ranulf of Chester may have aimed to avoid such interference when he granted `all the knights and free tenants of the whole of Cheshire’ a privilege akin to Clause 60, since by doing so he could hope to reserve to himself the right to deal with complaints against the barons of his great lordship. It is possible that other tenants-in-chief, too, had doubts about the inclusion of the Clause in Magna Carta, doubts which they expressed in 1217, when a rider was added to what had now become Clause 45 safeguarding precisely those rights which might have enabled them to keep royal power at arm’s length, one which was carried over into all the subsequent re-issues.17

It should be said that this is not the only way in which this addition can be understood, for it could have been included with the more general purpose of extending to individual lords, lay and ecclesiastical, precisely that protection of their `liberties and free customs’ which in 1215 had been granted in the very same words to London and other urban communities.18 Such a possibility is perhaps strengthened by the addition’s occupying a slightly but significantly different place in the 1225 reissue of Magna Carta, so that it came immediately before rather than after what had been Clause 60 and was now Clause 45, as, indeed, it had already done at the equivalent point in the Charter of the Forest of 1217. This can only be speculation, and against it can be set the way in which the monks of Burton Abbey in Staffordshire seem to have understood the rider, for in their house’s text of Magna Carta as it was reissued in 1225 it came where it had been in 1217, placed as though to set limits on the former Clause 60, a position which surely reflected the abbey’s recurrent attempts to reduce its unfree tenants to subordination.19 It was certainly possible to see the 1217 rider in this light, but whether the Burton monks understood its purpose correctly, or whether they deliberately misinterpreted its intentions for their own benefit, it is ultimately impossible to say.

There were thus ambiguities in Clause 60 which presented opportunities for all involved in its devising and implementation. These included King John, but it is not necessary to suppose that he was himself primarily responsible for the addition of the clause to Magna Carta, that with characteristically Machiavellian cunning he saw how under the pretence of offering a remedy for injustice he could weaken the rebellious barons by separating them from their followers. Rather its presence shows how calls for reform, emerging from what are now largely unsoundable depths within free society to echo those made by the magnates, created pressures which were bound to have repercussions below the level at which the king dealt with his tenants-in-chief. Those pressures could hardly be relieved without an acceptance by the barons, presumably in response to demands from their own men, that the king’s concessions should be extended to the latter, even though this also required the involvement of the king in making that acceptance effective. A balance between these two elements was never going to be easily struck, and in fact a further effort to achieve this had to be made, again involving both the king and the magnates, as part of the reform programme of the late 1250s.20

 

Identifying misconduct

The extent to which sub-tenants actually needed the protection against oppression and injustice at the hands of their lords which c. 60 of Magna Carta afforded them is inevitably very hard to assess. There is no reason to suppose either that the misuse of power was rarer in the early thirteenth century than at any other time, or that it was only confined to King John, but clear-cut examples of misconduct by magnates at the expense of their tenants are not easily found. The assize of mort d’ancestor, as it originated in clause 4 of the Assize of Northampton of 1176, was specifically intended to prevent the lord of a fee from denying the succession to it to the heir of the previous holder.21 Yet very few examples have been found of proceedings resulting from the assize, despite its great popularity, in which a tenant-in-chief was shown to have wilfully deprived a sub-tenant’s heir of his inheritance.22 Recorded concessions by barons, whether of land or anything else, are usually neutral in tone, and rarely contain evidence of having been made against a background of complaint, though it seems likely enough that many were in fact made to remedy grievances.

An exception may have been the charter which Peter de Brus, lord of the North Yorkshire barony of Skelton, granted between 1207 and 1209 to the knights and free tenants, `and their men’, of the wapentake of Langbargh, the unit of local government within which Skelton stood, and which he had just bought the from the king.23 Possibly the charter resulted from his efforts to recover the 400 marks (£233. 6s. 8d.) spent on his purchase, or it may only reflect the fears of those who had newly become his men. It certainly suggests some of the methods whereby the resources of tenants could be exploited by their lords, and especially through his court, for Peter guaranteed that his men would only be summoned to the court of the wapentake through `reasonable’ and established procedures, that they would not be harassed by artificial lawsuits (`by pretence of a plea’), and perhaps most important of all (and anticipatory of Clause 20 of Magna Carta), that any penalties would be assessed in proportion to the means of the offender and the seriousness of his offence.

Peter also pledged that his officers would observe these conditions, and accepted restrictions on their number, reflecting another potential hindrance to the identification of acts of oppression by lords against their tenants. Where a subtenant was moved to seek legal redress against his lord, he must often have acted against the latter’s agents rather than against the lord himself, without necessarily identifying them as such, so that the court roll simply records how one obscure individual had sued against another. Many, indeed, must have hesitated to take action against their lords at all, for fear of the possible consequences – whether a lawsuit succeeded or failed, a lord’s resentment remained something to be avoided. In 1214 one Elias of Farnham, Essex, gave the king £2 `so that he might be delivered from the prison in which he was because he appealed Gilbert the Englishman his lord’, the result of what had clearly been a bitter dispute between the two men – Gilbert, a tenant of Richard de Muntfichet, was himself imprisoned with seven of his men `for the trespass which they did concerning the houses of Elias of Farnham and other injuries done to him’, and only secured his release on conditions which included paying Elias 50s. in damages.24

Notwithstanding the possible difficulties, however, it is still possible to gain some idea of the sort of offences which the powerful could commit against the relatively weak, and hence of the protection the observance of c. 60 could have afforded to the latter. Some of the clauses of Magna Carta, indeed, were overtly intended to give such protection, notably Clause 15, which limited the occasions on which a lord could take an aid from his men. In October 1207 Robert Mortimer of Attleborough, an important landowner in Norfolk, brought an action coram rege against twelve of his tenants to compel them to contribute to an aid intended to reimburse him for his service in Poitou two years earlier.25 He claimed to have the authority of a royal order for his demand, but his tenants resisted him on precisely the grounds upheld by Magna Carta, that no aid was due to their lord except for the ransom of his person, the marriage of his first-born daughter and the knighting of his eldest son. The case was adjourned, and its outcome is not recorded, but it seems likely either that Robert continued his suit and lost, or that he abandoned his action, for he chose instead to bypass the courts in favour of a direct approach to the king – in 1208 he proffered a palfrey `for having a reasonable aid from his free tenants ... according to the size of their tenements which they hold of him’, and had paid his fine in cash (five marks) by Michaelmas.26 Presumably the tenants then paid up, helping to explain why their leader, Nicholas the butler, later rebelled against King John.27 No doubt it was men like Nicholas who secured the inclusion of Clause 15 in Magna Carta, where it would have barred the king from intervening on Robert Mortimer’s behalf, and also the more general protection afforded them by Clause 60, which would have prevented Robert from making such a demand on his tenants in the first place.

A number of other clauses, though less categorical about their purposes, were nonetheless capable of being invoked by tenants and sub-tenants against their lords. Thus had Germanus of Chessington failed in other recourses, he might still have been able to invoke Clause 16 – `No person is to be distrained to do more service for a knight’s fee, or for another free tenement, than is owed for it’ – when in 1205 he resisted what he claimed were excessive demands by Brian FitzRalph for services owed for the land he held of him in Chessington, Surrey: a fifth of a fee, and as much as was due from a hide of land, claimed Brian, only half as much, according to Germanus.28 But the surviving evidence suggests that Clause 39 – `No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land’ – was the one most likely to be called in aid, as it might have been, for instance, by Elias of Farnham.

Lords of all kinds, no less than the king, were to be required to act in accordance with what had become accepted practice, for instance with regard to the workings of their courts, where procedure had become increasingly elaborate. When Stephen de Bretteville brought an action of novel disseisin against the bishop of Exeter, the court coram rege heard how the bishop had himself proceeded in his own court against Stephen for arrears of scutage and reliefs, and how three formal summonses had been followed by distraint of goods by three different pairs of distrainers, before Stephen’s fee had itself been taken in distraint, to be several times offered back to him should he give security, which he persistently refused to do – unsurprisingly, his case was dismissed.29 Others were less careful to observe the formalities. When in 1199 Sarah daughter of William sued Geoffrey of Titsey, a minor tenant-in-chief in Surrey, for disseising her of land in Edenbridge, she won her case when Geoffrey’s claim to have acted by judgment of his court was contradicted by a jury.30 In a similar case, heard at the 1218/19 Yorkshire eyre but originating earlier, Ranulf de Novo Mercato, who had disseised Roger son of Walter of his rights in common pasture at Hickleton for seven years’ arrears of service, was firmly instructed by the justices that `he should deal with him by judgment of his court and distrain him by his fee to do his service with the arrears.’31 In both these cases the disseisors were relatively unimportant men found to have been procedurally at fault in their dealings with those beneath them.

In other cases the procedure itself may have been less than certain, though the results might be much the same. When the East Anglian landowner Peter FitzGeoffrey sued Walter son of Humphrey in the bench in Trinity term 1200 for the homage and service due to him from a fee in Yeldham, Essex, Walter responded that he had been disseised by Earl Richard of Clare, not for any deficiency of his own, but because Peter, who appears to have only recently come into his inheritance, had failed to do homage and pay a relief to the earl.32 The latter’s steward upheld Walter’s claim, and added that Clare was still in occupation of the property. Peter then denied that Walter had been disseised at all, the case was remanded to a future session, and its outcome is unknown, but the pleadings show how it was possible for a lord to sequestrate one man’s estate on the basis of another man’s default. Clare may well have obtained a judgment of his court against Peter, but there is nothing to suggest that one was given against Walter, even though he was the man allegedly put out of his land. Clause 60 could have provided him with the means of obtaining redress from an overlord who might never have heard of him.

Walter may simply have been unfortunate in having been caught up in proceedings involving men more important than himself. And in any case oppressive lordship was not in itself necessarily in breach of law. When around the end of John’s reign Richard of Stapleton was so `aggrieved by the harsh lordship [de duro dominio] of Richard Mallory’ that he surrendered to the latter the land he held of him in Kirkby Mallory,33 Mallory may perhaps have offended against the social norms which defined acceptable lordship, but he was not recorded as having acted unlawfully. Men of power may not in fact always have needed to employ illegal methods to attain their ends. A royal henchman like William Brewer could, it seems, accumulate large estates without even nominally breaking the law at the expense of the men and women whose losses provided him with his gains, it was royal favour, and the wealth and opportunities for patronage which this brought him, rather than outright injustice, which enabled him to prosper mightily.34 Other lords, however, of comparable standing, certainly resorted to violence and fraud against those beneath them.

 

Magnate misrule

One of them was Theobald Butler, the brother of Archbishop Hubert Walter and a long-term servant and associate of King John.35 Appointed sheriff of Lancashire in 1194 by Richard I, who also granted him the whole wapentake of Amounderness, he abused his powers with a tyrannical vigour that was still remembered nearly sixty years later – an inquest held in 1253 recorded how `because of his many transgressions in seizing the lands of Robert son of Bernard, Walter son of Osbert, William son of Swan, and others of Amounderness, and other injuries, the king disseised him of all his lands.’36 The king in question was John, who in 1199, and again in 1201 when he travelled through the north of England, was beset by so many complaints against Theobald’s misrule that he clearly felt unable to ignore them.37 Entries on the fine rolls show that Walter son of Osbert had been forced into an unfavourable exchange of lands,38 while others were simply dispossessed, for instance Richard of Freckleton, who paid five marks to recover pasture `of which Theobald disseised him unjustly and without judgment, as was found by a jury of lawful men ...’.39

Theobald lost both his shrievalty and his lordship in Lancashire late in 1199, but later regained the king’s favour, probably thanks to his brother the archbishop, who was himself later accused, apparently with justification, of making free with other men’s estates. Hubert Walter died on 13 July 1205, and after his death, so it was reported seven years later, `there came many complaints to the king by men whom the archbishop had disseised of their lands, so that in response to their complaint the king ordered inquests to be made whereby many of those plaintiffs recovered seisin of their lands ...’.40 Adam of Charing, whose family had been farming the manor of Charing, south-west of Canterbury, from successive archbishops for the best part of a century, was among the men who claimed to have been disseised.41 John’s reported opinion that Hubert had been consigned to hell may not have been only due to his relief at no longer having to rule under the shadow of an overmighty servant.42

Other magnates can be seen to have been equally ready to dispossess their own tenants. In 1202 two Lincolnshire magnates, Gilbert de Gant and Simon of Kyme, were convicted of carrying out disseisins in Barton upon Humber and Sotby respectively, both townships of which they were the overlords.43 In 1213 King John ordered the reinstatement of Geoffrey Huse in the fraction of a fee which he held of Warin FitzGerold at Harnham, Wiltshire, as part of Warin’s barony of Stogursey, after his disseisin by his overlord, apparently for failing to perform the service demanded of him – Geoffrey had been in the royal host summoned to defend the coasts of Kent at the time.44 Nor was it only magnates who ejected their tenants from their holdings. In 1221 one Henry of Drayton was found to have been disseised on his deathbed by his lord, Joelin of Sowe (a tenant of the prior of Coventry), who intended thereby `to bar his heir from the writ of mort d’ancestor ...’45 – clearly he believed (mistakenly, as things turned out) that since Henry had not been in possession at the actual time of his death, his son would be unable to claim the right of inheritance which the writ was intended to safeguard. To make matters worse for those who suffered thus at their lords’ hands, ejection might be accompanied by pillage. Richard de Muntfichet of Wallington, a member of a junior branch of the baronial Muntfichet family, and as such the lord of several manors, was found to have disseised Katherine, the widow of John de Muntfichet (presumably Richard’s kinsman) of her free tenement in his manor of Burleigh, Hertfordshire, and in the process to have inflicted damage assessed at thirty-five marks (£23. 6s. 8d.), `both in the rooting up of garden and wood and houses, and in the sale of horses and oxen and other animals, and in the carrying away of her chests and clothes and in the delaying of her sowing.’46

 

Following the king’s example

The records do not say why lords like Joelin of Sowe and Richard de Muntfichet acted as they did. It may be that they had no motive other than to increase their holdings of land, but although greed for possession was doubtless the commonest motive for disseisin, there is no reason to suppose that it was the only one. All the signs are that the arrogance of power, vindictiveness, and sheer irresponsibility were as likely to move lords to take action to enforce their will or show their displeasure at the expense of those beneath them as they were to act upon the king himself. When William Baucan brought an action against Earl William of Devon in 1214, in which he alleged that he was being prevented from taking crops and receiving rents from land which the earl himself had given him, by a charter which he presented in court, he was in effect complaining of having lost the favour which Earl William had previously shown him, for services which included acting as the earl’s attorney. The earl did not condescend to explain his actions, however, and his representative had the case dismissed on a technicality.47

King John’s anger was one of the mainsprings of his rule. Ralph son of Sireth, a Norfolk landowner, sued in 1208 by Walter of Creeping Hall for failing to observe the terms of a fine concerning land at Ellingham, Norfolk, acknowledged the settlement, but explained that `the earl of Arundel was angry with him because he made that fine and disseised him of the whole land ... so that he does not have the wherewithal to pay him that rent ...’.48  Kings who gave mutually contradictory orders found parallels in lords like Roger Bigod, earl of Norfolk (one of the twenty-five barons charged with upholding the terms of Magna Carta), who was found in around 1209 to have given her dower to Helen, the widow of Geoffrey son of Warin, a landowner at Cretingham, along with the custody of Geoffrey’s son and heir, but then to have been persuaded to grant the wardship to others. Further proceedings revealed that the heir, named Robert, had subsequently presented himself before Earl Roger to claim his inheritance, and was permitted to do homage and enter into possession, even though when he appeared before the king’s justices in 1214 `he did not appear to be more than seven years old’, with the result that what was described as `the custody of the aforesaid child (infantis)’ was returned to his mother and her new husband.49 Helen had first approached the earl in his capacity of `chief lord’ of Geoffrey son of Warin’s lands, but clearly found him heedless of his seigneurial obligations towards both her son and herself. The fact that in later proceedings brought by Robert concerning the manor of Freston his opponent claimed that he had been unable to observe the terms of a fine made by his father because `he cannot have that land because of the violence (per forciam) of Earl Roger le B.’, an allegation which Robert did not deny,50 suggests, indeed, that the earl’s misuse of his local power could go some way beyond mere irresponsibility.

Tenants-in-chief were vulnerable at times of succession to property, and so could their sub-tenants be. No sooner had Roald FitzAlan re-united the constabulary of Richmond by recovering the lands formerly held by William de Rollos – it had been divided between the ancestors of the two men since the reign of King Stephen – than he ejected a number of William’s tenants from their lands, on what grounds is unknown. The response of the tenants, which appears to have been unique in John’s reign, is of particular relevance in the context of Clause 60, in that they obtained direct royal intervention to secure their reinstatement. Eleven named men, mostly identifiable as small landowners on the constable’s fee, acted together to proffer £10 `for having such seisin of their lands and chattels as they had on the fee formerly that of William de Rollos ...’, and paid the money within two years.51 Such an act of royal intervention between a lord and his men may well have been what the drafters of Clause 60 had in mind, though perhaps without its having to be paid for, and what they would otherwise have looked for in vain before 1215, when the law-courts provided the only recourse for men who had been misused by their lords.52 Hence, for instance, the action brought by Godfrey de Waure, apparently a Fleming who had been granted the Suffolk manor of Dennington by Duke Henry of Lorraine while the latter held it as part of the honour of Eye. In 1208 he sued to recover lands which had been granted out by the earl of Salisbury, `who disseised Godfrey of it by his will while the honour of Eye was in his hand through the lord king ...’, and seems eventually to have recovered what he had lost.53

When a great lordship like Eye changed hands, or when it fell into wardship because a deceased lord had left a minor as his heir, its tenants must often have trembled for their rights, and with good reason. The Yorkshire baron Gerard de Furnival, having been granted custody of the heir and lands of William de Luvetot late in Richard I’s reign, proceeded to eject Ralph of Ecclesfield from his lands at Ecclesfield, Grenoside and Woolley (all places a few miles north of Sheffield, and so within the Luvetot lordship of Hallamshire), and to cut down trees worth well over £500.54 For men in Ralph’s position, and similarly for anyone dispossessed when a former lord was restored following a break in tenure, the only hope of restitution normally lay in legal action. It was through litigation and a court order that the tenants of William of Windsor, disseised of their lands by their lord following his recovery of his estates after they had been briefly in the king’s hands, won the restoration of their property in 1212 and later.55

 

Ecclesiastical victims and offenders

There are obvious similarities between the ways in which lords could abuse their authority over men and the dealings of some magnates with monasteries of which they were patrons or benefactors. The parallels cannot be regarded as exact, but there were links of dependency which make the analogy acceptable, and also useful, thanks to the additional detail sometimes provided by monastic chronicles (although their reliability cannot always be taken for granted), and by the charters which might be issued by lords when they settled disputes or remedied grievances. Two instances of oppression of monasteries by their patrons, that of Binham Priory by Robert FitzWalter and of Walden Abbey by Geoffrey FitzPeter, are described in the commentaries on Clauses 40 and 46 respectively. The king’s intervention led to FitzWalter raising his siege of Binham, but FitzPeter’s harassment of Walden continued for several years, despite the efforts of authorities secular and ecclesiastical, up to both king and pope, to arrange a settlement.

A religious house rarely commanded the resources to enable it to match the physical force which a lay lord could deploy in the pursuit of his interests, and should in any case have been inhibited by its own values from attempting to do so. By way of compensation, however, monks and canons were well equipped to invoke supernatural sanctions against those who persecuted and robbed them. They had no discernible effect upon Geoffrey FitzPeter, but the note of deep penitence struck by the charter which Adam (ii) de Brus, lord of the barony of Skelton, gave to Guisborough Priory, in the North Riding of Yorkshire, in the 1170s, certainly suggests that religious fear had helped to bring him to repent of past misdeeds: `... Know that since my canons of Guisborough labour under many tribulations, in that I, following evil counsel, have so harassed them over their possessions, both ecclesiastical and secular, granted to them in free alms by Robert de Brus my grandfather, that by force and fear I have extracted from them an outrageous grant which they have confirmed by their charter ...’ – this concession, which Adam now revoked as monstrous, inordinate and contrary to canon law, had involved granting his clerk a pension from Skelton church, promising him the incumbency when it became vacant, and giving Adam the right to choose all future parsons.56 He could describe the canons of Guisborough as `my’ because his grandfather had founded their monastery and given it a generous endowment which included nine churches, one of them that of Skelton – Adam may well have wanted to provide for his clerks by presenting them to parish churches, and then, when he found that their advowsons were not at his disposal, taken direct action to obtain them.

Benefactors and their kin could be as troublesome as patrons. Particularly full and revealing in this context are the accounts of a monastery’s difficulties recorded in the chronicle of Meaux Abbey, a Cistercian house founded by Count William of Aumâle in the mid-twelfth century on a site a few miles north of Hull. Composed by Thomas Burton at the end of the fourteenth century, but based on earlier chronicles and on extensive documentary research, it tells how William endowed the abbey generously, while numerous other landowners made grants, but also how in a number of cases the successors of benefactors made efforts to recover what their forebears had given. Thus although Robert (iii) de Stuteville, lord of Cottingham, had given the monks the site for a mill on the River Hull, along with other properties and privileges, his son William, described as a man of great power (`praepotens’), took the mill away from them, and used a combination of threats and deceitful promises to extract his father’s charter from them as well. He gave the site for another mill, but then constructed one of his own where it interfered with the workings of the monastery’s, and although he eventually returned some lands he had seized, he did so only as part of an enforced exchange.57

The chronicler’s emphasis on the power of William de Stuteville is echoed in his account of his house’s dealings with another benefactor, Geoffrey Trussebut, lord of Hunsingore, who himself gave Meaux lands at their grange of Blanchemarle but then, perhaps because he wanted to promote the interests of Warter Priory, an Augustinian house of which he was patron, seized them back and ejected all the monks and lay-brothers whom he found there. He was able to do this unopposed due to the son and sisters of the landowner on whose estate the grange had been established being then at loggerheads, and so, tellingly, `the monks then found no defender ...’. Meaux raised 100 marks in the hope of buying Geoffrey’s good will, and though the money and the monk carrying it were lost at sea, in around 1180 peace was made and Geoffrey made grants to the abbey which Henry II confirmed – an example of royal power being invoked to give added protection to.the relatively weak against the locally strong.58

Not that royal power was necessarily any more effective than divine authority. William Fossard, lord of the barony of Mulgrave, died in 1195, leaving as his heir an under-age daughter named Joan, whom Richard I gave in marriage to Robert of Thornham, a prominent royal servant who was then seneschal of Gascony. The monks now faced a campaign of harassment by Joan’s mother Beatrice, who claimed their land at Wharram le Street (the site of one of the monastery’s largest granges, eventually comprising 1327 acres) as her dower, and was eventually bought off with a portion of it worth £10, and then by Thornham himself, who claimed all the lands at Wharram as part of his wife’s inheritance, got possession of them with the assistance of Archbishop Hubert Walter, who was then justiciar, and then when the archbishop changed his mind refused to give them up. An offer of 100 marks from the abbey’s patron, the count of Aumâle, achieved nothing, Thornham was not to be moved, `neither by the archbishop nor by the king himself or anyone else ...’. He threw all the lay-brethren and monastic staff out of the grange except for two men who were kept in close confinement for over a month, and having had all the buildings demolished, including the mill, used their timbers to make houses for himself at Birdsall. The unexpected death of King Richard, it is implied, brought Thornham to repentance and restitution, but he could not be persuaded to compensate the monastery for the damage he had done.59

Lay lords could be just as aggressive in their dealings with members of the secular clergy. Philip de Sanderville gave land for a chapel at Ruxox, south of Bedford, probably in the 1160s. His grant was so resented afterwards by Philip’s son and son-in-law that they harried its priest into renouncing his position and surrendering his charters in the presence of the bishop of Lincoln.60 And the religious were themselves fully capable of oppressing their dependents and tenants. The case of the tenants of St Augustine’s abbey, Canterbury, at Minster in Thanet, who in 1198 felt so aggrieved by their treatment by their lord that they crossed to Normandy to complain (unsuccessfully) to King Richard `of the unjust customs which the abbot was demanding of them’, may be an example of this.61 More certainly, the conduct around the same time of Abbot Samson of Bury St Edmunds towards his monastery’s tenants at Babwell, at the northern end of Bury, was such that not even his devoted biographer, Jocelin of Brakelond, felt able to excuse it, but numbered it among his sins that `he has so raised the level of the fish-pond at Babwell, for the new mill, that there is not one man, rich or poor, who has land next to the river between the town gate and the east gate, who has not lost his garden and orchards as a result of the flooding. The cellarer’s pasture, on the other bank, has been ruined, and the neighbours’ arable land is spoiled ...’. The cellarer’s complaints were overridden by Samson, who declared that `he was not going to sacrifice his fish-pond for the sake of our meadow ...’.62 Clause 60, with its universal application, might have enabled the abbey’s free tenants to obtain a remedy even against the redoubtable Samson.

 

Uncertain conclusions

Samson died at the end of 1211, so there is no way of telling how, or indeed if, the townsfolk of Bury might have appealed to Clause 60 in the hope of moderating his overbearing rule. The clause was clearly not a dead letter after 1215, but records of its being invoked appear to be rare. Several reasons can be suggested for this: abuses of the kind which led to its inclusion in the Charter may in fact have been rare, or become rarer in response to Clause 60; or the Clause may have been primarily appealed to in courts whose records have not survived; or its being invoked was actively discouraged in order to keep royal intervention to a minimum, in much the same way that efforts were made to exclude the general eyre later in the thirteenth century. But the resulting scarcity of evidence makes it hard to discern the Clause’s purpose as well as its efficacity. It is easy to see how its inclusion in Magna Carta could be seen as displaying King John’s political skills, even though such an interpretation seems unlikely to be correct. It is no less easy, and probably better-founded, to regard it as showing a lack of political imagination on the part of the king’s adversaries. From the practice of diffidatio, the renunciation of fealty which traditionally licensed armed resistance to a despotic ruler, they derived the security clause which followed Clause 60 in Magna Carta, authorising a kind of temporary and conditional withdrawal from their allegiance which would then allow them to compel the king’s adherence to the Charter by force of arms. Understandably, this was regarded as revolutionary and proved unworkable.

Clause 60 presented similar problems of enforcement. In a world whose social and political structures derived from and rested upon kingship, the barons seem to have been unable even to contemplate usurping the king’s traditional right to receive, and respond to, complaints of injustice, whether committed by themselves or anyone else, and so left the way open for him to exploit differences between themselves and their tenants. Perhaps they could not imagine the latter appealing for his intervention, after all the extortions and malpractices which they had endured along with their lords at John’s hands, compounded by the effects, also shared, of the six-year interdict which the king’s quarrel with the pope had brought upon the kingdom – the rebellious magnates may simply have seen themselves as heading an unshakeable alliance of principled lords and loyal tenants, within which the former made concessions to the latter in the confident belief that they would never be used because they were ultimately unnecessary. King John, it may be assumed, saw Clause 60 in a different light. To him it may have had the character of a kind of warranty clause for the entire Charter, under which he could be called upon to uphold any part of it against the very men who had forced it on him. Even if doing so entailed maintaining practices or principles which he resisted or rejected, it still gave him opportunities for intervention which might prove advantageous to himself.

Clause 60 set down the determination of the lesser barons and knights who supported the rebel lords that Magna Carta should be observed throughout the free society of which they were the pillars, but the contradiction between the Clause’s purpose and the means available for enforcing it may have proved impossible to resolve. As a result – the occasional reference or recourse notwithstanding – its essential character was ultimately that of a rhetorical flourish, one which proclaimed the significance of Magna Carta by underlining the extent of its application. And therein, it could be said, lay its importance.

 

1

Only in c. 60 are customs and liberties mentioned together.  Customs, in the sense of duties on trade, are referred to in c. 41, otherwise only in c. 48.  Liberties occur in cc. 1, 13, 52, 56, 58, 61 and 63

2

G. Wrottesley (ed.), `Staffordshire suits, extracted from the plea rolls temp. Richard I and King John’, William Salt Archaeological Society 3  (1882), 1-163, at 38.

3

Victoria County History of Staffordshire vii (1996), 169-75.

4

The word occurs in several clauses of Magna Carta and is also capable of being translated as `however’ – it is used to convey both meanings by Holt and Carpenter, in books cited below, according to context.

5

See also D. Carpenter, Magna Carta (2015), 152, 319.  The `Unknown Charter’ is printed and discussed by J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 418-28.

6

And in some respects those with unfree tenants as well.  Paul Brand has pointed out to me that villeins could have looked to Clause 20 for protection against excessive amercements by their lords.

7

A point made by Carpenter, Magna Carta, 142-3.

8

A possibility suggested to me by David Carpenter.

9

Patent rolls of the reign of Henry III, 1216-1225, 575-6

10

J. Hudson, The Oxford history of the laws of England ii: 871-1216 (Oxford, 2012), 563.

11

G. Barraclough (ed.), The charters of the Anglo-Norman earls of Chester, c. 1071-1237, Lancashire and Cheshire Record Society 126 (1988), 390.

12

D.W.Sutherland, The assize of novel disseisin (Oxford, 1973), 30.

13

M. Cheney, `The litigation between John Marshal and Archbishop Thomas Becket: a pointer to the origin of novel disseisin?’, J.A. Guy and H.G. Beale (eds.), Law and social change in British history (1984), 9-26, esp. 18-21.

14

D.C. Douglas and G.W. Greenaway (eds.), English Historical Documents ii: 1042-1189 (2nd edn., 1981), 472.

15

Ib., 449-50.

16

J.R. Maddicott, `The oath of Marlborough: fear, government and popular allegiance in the reign of King John’, English Historical Review 126 (2011), 281-318

17

H. Rothwell (ed.), English Historical Documents iii: 1189-1327 (1975), 337. 

18

I owe this suggestion to Paul Brand.

19

See D.A. Carpenter, 'Feature of the Month: December 2015 - The Saving Clause in Magna Carta: New Light Shed on its Meaning by the Copies of the 1225 Charter at Burton Abbey', The Magna Carta Project [http://magnacartaresearch.org/read/feature_of_the_month/Dec_2015_3  accessed 22 February 2016]

20

R.F. Treharne and I.J. Sanders (eds. and trans.), Documents of the baronial movement of reform and rebellion, 1258-1267 (Oxford, 1973), 132-3; P.A. Brand, Kings, barons and justices: the making and enforcement of legislation in thirteenth-century England (Cambridge, 2003), 31-2.

21

English Historical Documents ii, 445.

22

Cf. the comments of S.F.C. Milsom, The legal framework of English feudalism (Cambridge, 1976), 166-7

23

Holt, Magna Carta, 67-70.  See also Carpenter, Magna Carta, 146-7.

24

Curia Regis Rolls vii, 12-16 John, 1213-1215 (1935), 165, 177. For Gilbert’s landholdings see Liber feodorum. The book of fees commonly called Testa de Nevill, 2 vols. in 3 (1920-31), ii. 1161.

25

Curia Regis Rolls v, 8-10 John, 1207-1209 (1931), 39 (a case drawn to my attention by David Carpenter). T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit. Pat.), 53, records Robert’s service in Poitou. For his landholdings see F. Blomefield, An essay towards a topographical history of the county of Norfolk i (1805), 506-8.

26

T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 427; PR 10 John (1208), 14.

27

T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 334.

28

Curia Regis Rolls iii, 5-7 John, 1203-1205 (1926), 283.

29

Ib., 133-4.

30

F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols. (Record Commission, 1835), ii, 58-9, 117. For Geoffrey’s landholdings see Book of fees i. 69. He was a tenant-in-chief through holding two fees of the honour of Gloucester, then in the king’s hands.

31

D.M. Stenton (ed.), Rolls of the justices in eyre ... for Yorkshire in 3 Henry III (1218-19), Selden Society 56 (1937), no. 46 (pp. 21-2).

32

Curia Regis Rolls i, temp. Richard I – 2 John, 1196-1201 (1922), 177-8.

33

D.M. Stenton (ed.), Rolls of the justices in eyre ... for Gloucestershire, Warwickshire and Shropshire, 1221, 1222, Selden Society 59 (1940), no. 1450 (pp. 607-8).

34

R.V. Turner, Judges, administrators and the common law in Angevin England (1994), 269-87.

35

For Theobald’s life see M. T. Flanagan, ‘Butler , Theobald (d. 1205)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/4207, accessed 9 Dec 2015]

36

Calendar of inquisitions post mortem i: Henry III (1904), no. 264.

37

Rot.Ob.Fin., 33-4, 115-16, 123-4.

38

Ib., 115.

39

Ib., 123.

40

Curia Regis Rolls vi, 11-14 John, 1210-1212 (1932), 271. Cf. the judicious comment of C.R. Cheney, Hubert Walter (1967), 112 – `Charges of oppression were made.  They are not proved; but they are hard to disprove ...’.

41

Rot.Ob.Fin., 301-2.  For other examples see ib., 334-5, 337. For Adam of Charing see F.R.H. Du Boulay, The lordship of Canterbury:an essay on medieval society (1966), 200-1.

42

H.R. Luard (ed.), Matthaei Parisiensis ... Chronica Majora, 7 vols. (Rolls Series, 1872-83), ii. 559.

43

D.M. Stenton (ed.), The earliest Lincolnshire assize rolls, A.D. 1202-1209, Lincoln Record Society 22 (1926 for 1924), nos. 173, 1456.

44

Rot.Lit.Claus. i, 138; Book of fees ii, 731 provides tenurial background.

45

Rolls of the justices in eyre ... for Gloucestershire, Warwickshire and Shropshire, no. 474..  Book of fees ii, 955 records Joelin’s son Simon as holding land in Sowe of the prior of Coventry.

46

Curia Regis Rolls iii, 287. For the Muntfichets of Wallington see Victoria County History of Hertfordshire iii (1912), 120-2, 286.

47

Curia Regis Rolls vii, 175; R. Bearman (ed.), Charters of the Redvers family and the earldom of Devon, 1090-1217, Devon and Cornwall Record Society new series 37 (1994), 174.

48

Curia Regis Rolls v, 294-5.

49

Curia Regis Rolls vii, 243, 245-6

50

Curia Regis Rolls ix, 4-5 Henry III, 1220 (1952), 119.

51

Rot.Ob.Fin., 253, 266, 289; PR 7 John (1205), 59; PR 8 John (1206), 202; PR 9 John (1207), 87. Details of many of the tenants can be found in C.T. Clay (ed.), Early Yorkshire charters iv: the honour of Richmond, 2 vols., Yorkshire Archaeological Society, Record Series, Extra Series 2-3 (1935-6). For the background see Holt, Magna Carta, 104-5.

52

There are a great many recorded instances of John acting for and against the men of his tenants-in-chief, but they always seem to have occurred when wardship, confiscation, forfeiture or escheat had brought their lands into his hands, not when they were in the uncontested possession of their lords.

53

Curia Regis Rolls v, 305-6; B. Dodwell (ed.), Feet of fines for the county of Norfolk ... 1201-1215, for the county of Suffolk ... 1199-1214, Pipe Roll Society new series 32 (1958), no. 491 (p. 235); V. Brown (ed.), Eye Priory cartulary and charters ii, Suffolk Records Society, Suffolk Charters xiii (1994), 67-8; T.D. Hardy (ed.), Rotuli chartarum, 1199-1216 (Record Commission, 1837), 176.  The honour of Eye was committed to the earl of Salisbury in February 1205, Rot.Lit.Pat., 50.

54

Palgrave, Rotuli Curiae Regis ii, 165-6.

55

Curia Regis Rolls vii, 81-2, 140-1, 204. For the background to these actions see commentary on c. 39, section headed `Debtors and other targets’.

56

W. Brown (ed.), Cartularium prioratus de Gyseburne, 2 vols., Surtees Society 86, 89 (1889-94), ii. 125-6. Adam’s grandfather’s foundation charter, which includes the grant of churches referred to below, is printed ib., i. 1-3.

57

E.A. Bond (ed.), Chronica monasterii de Melsa, 3 vols. (Rolls Series, 1866-8), i. 227

58

Ib., 172, 211; C.T. Clay (ed.), Early Yorkshire charters x: the Trussebut fee, Yorkshire Archaeological Society, Record Series, Extra Series 8 (1955), nos. 90-1 (pp. 136-7).

59

Chronica monasterii de Melsa, i. 231-2, 289-91. For the grange at Wharram see C. Platt, The monastic grange in medieval England (1969), 77.

60

C.T. Clay (ed.), Early Yorkshire charters vii: the honour of Skipton, Yorkshire Archaeological Society, Record Series, Extra Series 5 (1947), no. 49 (pp. 102-3); G.H. Fowler (ed.), A digest of the charters preserved in the cartulary of the priory of Dunstable, Bedfordshire Record Society 10 (1926), no. 115 (pp. 40-1).

61

Curia Regis Rolls vii, 341-2, 343.  Suit of court seems to have been at the heart of the dispute, which by 1198 had been in progress for over twenty years, William Thorne’s Chronicle of St Augustine’s Abbey Canterbury, trans. A,H. Davis (Blackwell, Oxford, 1934), 111-12, 135.

62

Jocelin of Brakelond, Chronicle of the abbey of Bury St Edmunds, trans. D.Greenway and J. Sayers (Oxford, 1989), 116.


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Original Latin

Cum autem pro Deo, et ad emendationem regni nostri, et ad melius sopiendum discordiam inter nos et barones nostros ortam, haec omnia praedicta concesserimus, volentes ea integra et firma stabilitate gaudere in perpetuum, facimus et concedimus eis securitatem subscriptam; videlicet quod barones eligant viginti quinque barones de regno quos voluerint, qui debeant pro totis viribus suis observare, tenere, et facere observari, pacem et libertats quas ei concessimus, et hac praesenti carta confirmavimus, ita scilicet quod, si nos, vel justiciarius noster, vel ballivi nostri, vel aliquis de ministris nostris, in aliquo erga aliquem deliquerimus, vel aliquem articulorum pacis aut securitatis transgressi fuerimus, et delictum ostensum fuerit quatuor baronibus de praedictis viginti quinque baronibus, illi quatuor barones accedant ad nos vel ad justiciarium nostrum, si fuerimus extra regnum, proponentes nobis excessum: petent ut excessum illum sine dilatione faciamus emendari. Et si nos excessum non emendaverimus, vel, si fuerimus extra regnum, justiciarius noster non emendaverit infra tempus quadraginta dierum computandum a tempore quo monstratum fuerit nobis vel justiciario nostro si extra regnum fuerimus, praedicti quatuor barones referant causam illam ad residuos de viginti quinque baronibus, et illi viginti quinque barones cum communia totius terrae distringent et gravabunt nos modis omnibus quibus poterunt, scilicet per captionem castrorum, terrarum, possessionum, et aliis modis quibus poterunt, donec fuerit emendatum secundum arbitrium eorum, salva persona nostra et reginae nostrae et liberorum nostrorum; et cum fuerit emendatum intendent nobis sicut prius fecerunt. Et quicumque voluerit de terra juret quod ad praedicta omnia exsequenda parebit mandatis praedictorum viginti quinque baronum, et quod gravabit nos pro posse suo cum ipsis, et nos publice et libere damus licentiam jurandi cuilibet qui jurare voluerit, et nulli umquam jurare prohibebimus. Omnes autem illos de terra qui per se et sponte sua noluerint jurare viginti quinque baronibus, de distringendo et gravando nos cum eis, faciemus jurare eosdem de mandato nostro, sicut praedictum est. Et si aliquis de viginti quinque baronibus decesserit, vel a terra recesserit, vel aliquo alio modo impeditus fuerit, quo minus ista praedicta possent exsequi, qui residui fuerint de praedictis viginti quinque baronibus eligant alium loco ipsius, pro arbitrio suo, qui simili modo erit juratus quo et ceteri. In omnibus autem quae istis viginti quinque committuntur exsequenda, si forte ipsi viginti quinque praesentes fuerint, et inter se super re aliqua discordaverint, vel aliqui ex eis summoniti nolint vel nequeant interesse, ratum habeatur et firmum quod major pars eorum qui praesentes fuerint providerit, vel praeceperit, ac si omnes viginti quinque in hoc consensissent; et praedicti viginti quinque jurent quod omnia antedicta fideliter observabunt, et pro toto posse suo facient observari. Et nos nihil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua istarum concessionum et libertatum revocetur vel minuatur; et, si aliquid tale impetratum fuerit irritum sit et inane et numquam eo utemur per nos nec per alium.

Moreover, since we have granted all these things aforesaid for the sake of God, and for the reform of our kingdom, and the better to still the discord arisen between us and our barons, wishing that these things be enjoyed with a whole and constant stability in perpetuity, we make and grant them the following security: to wit, that the barons are to choose twenty-five barons of the kingdom, whoever they wish, who should with all their strength observe, hold and cause to be observed the peace and liberties which we have granted them, and by this our present charter confirmed, so that if we, or our justiciar, or our bailiffs, or any of our officers shall in any way offend against anyone, or transgress against any of the articles of peace or security, and the offence has been shown to four of the aforesaid twenty-five barons, those four are to go to us, or to our justiciar if we shall be out of the kingdom, setting forth the transgression, and demand that we have it reformed without delay. And if we do not have the transgression rectified, or, if we are out of the kingdom, our justiciar has not done so, within the space of forty days, counting from the time it was shown to us, or to our justiciar if we were out of the kingdom, the four barons aforesaid are to refer the case to the rest of the twenty-five barons, and those twenty-five barons and the commune of the whole land will distrain and afflict us by every means possible, by taking castles, lands and possessions and in any other ways they can, until it is rectified in accordance with their judgment, albeit sparing our own person and the persons of our queen and children. And once the matter has been redressed let them submit to our authority as they did before. And whosoever of the land so wishes is to swear that as to executing all the above he will obey the orders of the twenty-five barons aforesaid, and that with them he will afflict us to the best of his ability, and we openly and freely give permission to swear to whoever wishes to do so, and we will never forbid anyone to swear. But all those of the land who are unwilling to swear individually and voluntarily to the twenty-five barons, to distrain and afflict us with them, we will make them swear by our order as aforesaid. And if any of the twenty-five barons dies, or departs from the land, or is prevented in any other way from being able to act as aforesaid, the remainder of the twenty-five are to choose another man in his place, as they see fit, who will be sworn in like manner as the rest. Moreover in everything which shall be entrusted to the twenty-five barons to carry out, if perchance the twenty-five are present and disagree among themselves over anything, or if any of them, being summoned, will not or cannot attend, what the majority of those who are present shall provide or instruct is to be deemed as determined and binding, as if all twenty-five had agreed to it. And the aforesaid twenty-five will swear that they will faithfully comply with all the aforesaid, and cause it to be upheld to the best of their ability. And we will seek to obtain nothing from anyone, in our own person or through someone else, whereby any of these grants or liberties may be revoked or diminished, and if any such thing be obtained, let it be void and invalid, and we will never make use of it, in our own person or through someone else.

Audio commentary

Referenced in

Magna Carta and Richard II's Reign (Features of the Month)

New Letter of the Twenty-Five (Features of the Month)

New Letter of the Twenty-Five (Features of the Month)

Clause 60 (The 1215 Magna Carta)

Magna Carta and Peace (The Itinerary of King John)


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Original Latin

Et omnes malas voluntates, indignationes, et rancores, ortos inter nos et homines nostros, clericos et laicos, a tempore discordiae, plene omnibus remisimus et condonavimus. Praeterea omnes trangressiones factas occasione ejusdem discordiae, a Pascha anno regni nostri sextodecimo usque ad pacem reformatam, plene remisimus omnibus, clericis et laicis, et quantum ad nos pertinet plene condonavimus. Et insuper fecimus eis litteras testimoniales patentes domini Stephani Cantuariensi archiepiscopi, domini Henrici Dublinensis archiepiscopi, et episcoporum praedictorum, et magistri Pandulfi, super securitate ista et concessionibus praefatis.

Quare volumus et firmiter praecipimus quod Anglicana ecclesia libera sit et quod homines in regno nostro habeant et teneant omnes praefatas libertates, jura, et concessiones, bene et in pace, libere et quiete, plene et integre, sibi et haeredibus suis, de nobis et haeredibus nostris, in omnibus rebus et locis, in perpetuum, sicut praedictum est. Juratum est autem tam ex parte nostra quam ex parte baronum, quod haec omnia supradicta bona fide et sine malo ingenio observabuntur. Testibus supradictis et multis aliis. Data per manum nostram in prato quod vocatur Ronimed, inter Windelsoram et Stanes, quinto decimo die Junii, anno regni nostri septimo decimo.

And we have fully remitted and pardoned everyone all the ill will, indignation and resentment which has arisen between us and our men, clergy and laity, in the time of discord. Moreover we have fully remitted to all men, clergy and laity, and in so far as we are concerned fully pardoned, all the trespasses committed as a result of that discord from Easter in the sixteenth year of our reign until the reestablishment of peace. And moreover we have had letters patent made by Lord Stephen, archbishop of Canterbury, Lord Henry, archbishop of Dublin, the aforesaid bishops, and Master Pandulf, testifying to this security and the aforesaid grants.

Wherefore we wish and firmly command that the English church be free, and that the men in our kingdom have and hold all the liberties, rights and grants aforesaid, well and in peace, freely and quietly, for themselves and their heirs, of us and our heirs, in all things and places, in perpetuity, as aforesaid. This has been sworn to both on our behalf and on that of the barons, that all these things named above will be observed in good faith and without evil intent. Witnesses as aforesaid, with many others. Given by our hand in the meadow called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign.

Audio commentary

Referenced in

Clause 60 (The 1215 Magna Carta)


Reflections

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Magna Carta 1215
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