The Magna Carta Project

This famous clause is the shortest in the whole of Magna Carta – just nine Latin words, or thirteen in English. Brevity does not make for concise exposition, however, since the administration of justice was not only one of the most important functions of kingship, but was also well-nigh inseparable from government. The legal reforms of Henry II’s reign, moreover, greatly extended access to the royal courts, so that how the king did justice could potentially affect many more people than previously. Whereas Clause 39 seems to have been principally intended to protect the rights of the lower levels of free society, Clause 40 was primarily designed to safeguard those of barons and knights. The great men of the realm – essentially tenants-in-chief, holding their lands directly from the crown – had a particular need for such protection, since the processes resulting from Henry II’s reforms were at best only intermittently available to them. For the resolution of their disputes they usually had to turn directly to the king, in whose hands justice might at any time be a tool of patronage, a way of favouring friends and allies and hurting enemies, or simply a way of raising money.

The sources provide grounds for believing that this happened under both Henry II and Richard I, though they are often imprecise as to what was done and why. The survival of records is much fuller from John’s reign. What they reveal is by no means always discreditable to that monarch, for they show that he took a close interest in the courts, one of which, the court coram rege, may well have been created on his orders, and that he could be impartial, careful to act correctly, and sometimes even merciful, in his conduct of lawsuits. As with his two predecessors, the evidence is often capable of more than one interpretation, but that may simply show that individual cases were difficult ones, not necessarily that John gave judgment upon them in his own interests. There are a number of recorded cases, however, which show him in a different light, in which he could be partisan, willing to take money from either side, or even from both, and influenced in his judgments by financial, political and personal factors.

In 1210, for instance, John was recorded as having ordered his officials to refuse justice to the Cistercians, in revenge for their having refused him a grant of money, and he was no less vindictive in other cases. Ruald FitzAlan, the constable of Richmond, paid the king some £175 to be secured in his inheritance, but in 1208 still had to face a rival claim in a royal court, almost certainly because he had resisted the imposition of the tax of a thirteenth a year earlier. In a long-running dispute between the Shropshire baron Fulk FitzWarin and members of a Welsh family over the castle of Whittington, John accepted bids from both parties before finally deciding in Fulk’s favour. In other cases it is clear that the litigant who offered the most prevailed. A lengthy dispute between Robert de Courtenay and Alexander of Caldbeck over property in Cumberland was ended by a £200 proffer by Courtenay, whereupon Caldbeck abandoned his case, on the grounds that `the king does not wish that he should have it’. John did not always even try to appear impartial. In a dispute recorded both by the chronicler Matthew Paris and in court records between St Albans Abbey and Robert FitzWalter, a powerful baron with whom John’s relations were never good, over the former’s daughter-house of Binham Priory, the king was said to have expressed open satisfaction when FitzWalter put himself in the wrong by laying the priory under siege, and sent a force of knights to arrest him and his men.

Such cases as these – and there were many of them – do not show that King John’s administration of justice was invariably marred by partiality or corruption. But they do demonstrate that it could never be relied upon to be disinterested, uninfluenced by the external considerations which frequently affected the workings of Angevin government (still often a highly personal affair), and of justice along with it. There were signs, however, that by the time of John’s reign the concept of objective justice, as something existing in detachment from the central administration, was beginning to gain ground, and not least among the judges who presided in the royal courts. Very occasionally they resisted the king’s interference with their work, and after John’s death they did so more often. Clause 40 marked an important stage in the long-drawn-out process which separated law from government. Linked since 1225 to Clause 39, it is still on the statute book today.