The Magna Carta Project

Clause 23 was concerned with an abuse of royal rights, whereby communities near rivers might be compelled to provide makeshift bridges when the king went out hawking.  The birds pursued by his falcons were most likely to be found on or near rivers, and his enjoyment of his sport might depend on his being able to cross quickly from one bank to another.  Although some communities lay under a long-standing obligation to provide such bridges, it appears to have been widely extended during the twelfth century.  All the Angevin kings were keen falconers, John as much as any, and unlike Henry II and Richard I he spent years at a time in England, travelling widely and taking his birds with him – he sometimes went hawking on saints’ days, and then felt obliged to give food to poor people as penance for having done so.  He appointed officials to look after rivers where he went hawking, and later evidence shows that these were found in many parts of England.  By John’s reign it would appear that the penalty for failing to provide a bridge had become fixed at five marks (£3. 6s. 8d.), and that it was imposed on the spot.  Both the practice, and the large and arbitrary penalties resulting from it, were clearly greatly resented, as injurious not only to villagers but also to their lords, who risked being punished if their tenants did not supply the bridges demanded from them.  Clause 23 did not deny that the king could legitimately require bridges to be built at certain places, but aimed to curtail what seems to have become a limitless extension of this right.

Although English kings had an undeniable right to demand bridge-building from their subjects as an aid to the defence of the realm, there is no reason to believe that this was the abuse against which Clause 23 was directed.  Rather it was concerned with the arbitrary extension of hunting – or more precisely, hawking, a sport which involved the pursuit mostly of river-birds with trained falcons – rights, and the resulting demands which were made on communities situated near rivers, to provide makeshift bridges, so that the king and his companions could cross from one bank to the other and keep up with their hawks as they flew in pursuit of their prey.  Henry II and his two successors were all keen falconers, so much so that by 1189 debts to the crown were often paid in birds as well as, or instead of, cash.  John was highly enthusiastic, and this would have made a greater impact because he spent much more time in England, and travelled more widely in it, accompanied by his hawks, than either of his predecessors.  Hawking was a seasonal sport, practised from autumn to spring, but it was subject to no geographical limits, and the records of John’s reign, supported from evidence from Henry III’s, shows that the king and his birds went out after ducks, herons and cranes in many parts of England, mostly in the midlands and south but also further north – in February 1213 he took nine cranes in Lincolnshire.

In 1208, if the chronicler Roger of Wendover is to be believed (admittedly he is not the most reliable of sources), John prohibited the taking of birds throughout the country, so giving himself a monopoly on hawking, and a limitless capacity for punishing violations of it.  Perhaps the story is unfounded, but is certain that officials were appointed to supervise rivers where the king went hawking, and that both communities and landowners were liable to punishment when they ignored or disobeyed orders to provide bridges, or otherwise prevented the king enjoying his sport.  By John’s reign the standard penalty for failing to provide bridges had apparently become fixed at five marks (£3. 6s. 8d.), a large sum which seems usually to have been imposed, and perhaps collected, on the spot.  Lords who had been commanded to order their tenants to make bridges, but failed to do so, also risked punishment.  Some communities were traditionally required to act in this way.  It was the arbitrary extension of this liability to other places, along with the penalties for its infringement, which had become intolerable, and which Clause 23 was intended to prevent.   

Citation

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.