The Magna Carta Project

Under King John, royal policy towards landowners owing money to the crown became unprecedentedly severe, with the exchequer increasingly prepared to seize the lands not only of men who owed the king money, but also of those who had guaranteed its payment. In a society which was founded upon land tenure, such measures constituted a threat to status, as well as to livelihood, and aroused widespread resentment, which inevitably increased as more and more people were caught up in the processes of the exchequer, either as principals or as the latter’s pledges. Clause 9 did not forbid the practices complained of, but it placed firm constraints upon their use against principal debtors, in particular by providing that chattels were to be seized before land was confiscated. And it also gave protection to sureties by ordering that nothing was to be taken from them until the resources of principal debtors were exhausted, and by ordering that when they were obliged to pay the debts they had underwritten – as it is clear that they sometimes were – then they were to be able to secure repayment from the men whose obligations they had shouldered, if necessary by being put in possession of his lands and rents. More generally, the clause attempted to bring order to the processes whereby debts were recovered, which in John’s hands, in particular, were inconsistently applied in accordance with the king’s immediate interests or personal whim.

The treatment of crown debtors was always apt to vary under the Angevin kings, but on the whole they seem to have been handled more leniently by Henry II and Richard I than they were by John, who in 1201 issued an ordinance laying down much stricter conditions for the recovery of money owed to the king. In particular, the lands of debtors, as well as their moveable goods, now became liable to seizure, thereby placing their social rank, in an age in which this was indissolubly bound up with landownership, at risk along with their material resources. The men who stood surety for the payment of debts were treated with the same rigour, and since these could be very numerous – in some cases hundreds of people guaranteed the payment of a single large sum – a growing number of people came to be threatened with the loss of their status and assets. The ever-widening pressure exerted by the exchequer, though effective in the short term, was greatly resented, probably the more so because it was inconsistently applied, with much depending on the king’s personal decisions, perhaps even on his likes or dislikes for the people involved. Due process of law might be observed, but without necessarily being applied to everyone caught up in the workings of the exchequer. Clause 9, while perhaps only spelling out what was already regarded as acceptable practice, attempted to bring order and routine to this situation., by ensuring that the chattels of debtors were targeted before their estates, by preventing steps being taken against pledges until every effort had been made to raise the money owed from the principal debtors, and by providing the means for sureties who had been obliged to pay on behalf of the principals to recover their outlay from the latter.

Citation

(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.