The Magna Carta Project

Clause 21 is a follow-up to Clause 20.  Both dealt with the imposition of amercements (monetary penalties), but whereas Clause 20 extended right across society, to free men, merchants and villeins, its sequel was concerned only with the rights of earls and barons - a small number of wealthy and powerful people.  In the early thirteenth century ranks and titles were still in flux, and the word `baron’, in particular, could still be a synonym for tenant-in-chief, someone holding lands directly from the crown, and may also have been sometimes applied to a royal servant.  But however defined, the punishment of such men’s transgressions was reserved to the king and his officers, which usually meant that it was handled in the exchequer.  The result could be a heavy penalty, assessed in proportion to an offender’s means rather than to his offence.  This was equally true of amercements as such, and of many fines which, though they were supposedly negotiated settlements, were in reality punishments, agreed to by their victims as a way of recovering the king’s favour.  The magnates wanted treatment that would be fairer in itself, and also special in accordance with their status, at a time when they were beginning to form a separate stratum in society. But they hardly achieved this, for the leading officials in the exchequer were also known as barons, and during the thirteenth century it came to be accepted that these men were the peers of the magnates, at any rate when it came to assessing the latter’s amercements, which therefore remained effectively under the king’s control.

Clause 21 was the apparently unplanned follow-up to Clause 20 – it has no equivalent among the Articles of the Barons.  Clause 20 had laid down how amercements (monetary penalties, most often imposed in courts) were to be dealt with where the mass of the population was concerned – they were to be proportionate to the offence, and assessed by the transgressor’s neighbours.  Clause 21, concerning itself with the wealthiest and most powerful of the king’s subjects, retained its predecessor’s stress on proportionality, but entrusted the task of assessment not to an offender’s neighbours but to his social equals.  In doing so it marked an important stage in the emergence of the magnates as a separate stratum in English society.  In the years around 1200 this process was still incomplete.  The titles of earls had yet to become fixed, while barons could be either the fellow-magnates of the earls or just tenants-in-chief, men holding lands – any lands, not necessarily large estates – directly from the crown, or possibly royal servants.  For all such men, earls and barons (however defined), the punishment of their offences was traditionally reserved to the crown, which sometimes meant an amercement imposed by the king himself but more often entailed one assessed in the exchequer, an institution which could be relied upon to uphold royal interests.

Although the amercements imposed on magnates were not necessarily exorbitant, they could still be substantial, especially in the later years of John’s reign, and the same was true of some of the fines they were obliged to pay – although they were nominally negotiated settlements, fines could be effectively penal, above all when they were demanded as a way of recovering the king’s favour, lost for some often undefined transgression.  In Clause 21 the magnates not only demanded fairer treatment than they were receiving from either the king or the strongly royalist exchequer, they also wanted such treatment to reflect their own distinct status in the realm, at a time when they were coming to be separated from the lower ranks of landowning society – although the process was still incomplete, by 1215 a baron was increasingly likely to be a major landowner with a substantial following.  However, they failed to specify how the assessment appropriate to their rank was to be made, and as a result lost most of the advantages Clause 21 was intended to secure for them.  The leading officials of the exchequer were also known as barons, and by the 1230s were once more assessing amercements imposed upon magnates, on the grounds that they enjoyed the same baronial status. This was not at all what the drafters of Magna Carta intended.  

Citation

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.