The Magna Carta Project

Clause 55 resembled Clause 52 in being intended to provide retrospective implementation of a number of Magna Carta’s earlier provisions, in this case those placing limits on the king’s ability to impose financial penalties. In ordering that these were to be pardoned or referred to the judgment of the twenty-five barons who were to oversee the implementation of the Charter, the Clause followed No. 37 among the Articles of the Barons, but it also differed in some important respects from it. Article 37 had placed no chronological limits on its coverage, but where fines were concerned it restricted itself specifically to those made for dowers, marriages and inheritances. Clause 55, however, was to be applicable to all fines and amercements that had been made `unjustly and against the law of the land’, while confining itself to those made in the reign of King John. Fines and amercements were nominally different. An amercement was a penalty for an offence, imposed by the lord or superior of the person condemned to pay it, whereas a fine was theoretically a negotiated payment intended to settle a dispute or obtain a favour. But when the dispute was with an overbearing monarch, or the favour was the ending of harassment or the remission of anger, it became hard to distinguish the resulting fine from an amercement, and in fact under John the two became ever more alike, with fines taking on an increasingly penal character.

The substance of the penalties with which Clause 55 was concerned was that they should have been made unjustly, not that they were excessive. Amercements for breaches of the forest laws were probably a major grievance, especially as they were often heavy (this was so under Henry II and Richard I as well as John), but it seems highly likely that inordinate fines were what the barons had particularly in mind. The level of fines rose steadily under the three Angevin kings, with the upward trend of Richard’s reign becoming ever steeper during John’s. There was a marked tendency for fines to be increased by the addition of supplementary payments which were recorded as consisting of hawks, dogs and horses, but which were usually paid in cash. The pressure to pay became greater, with time limits becoming shorter while the penalties for failing to meet them became more severe. And those who made a fine were increasingly liable to have to find pledges who could not only guarantee that the debt would be paid but also contribute towards its payment – pledges often gave more than the principal did. The burdens placed upon pledges inevitably had the effect of spreading the discontent aroused by John’s financial exactions throughout landowning society. The last years of his reign saw the imposition of some huge fines, culminating in the 20,000 marks (£13,333. 6s. 8d.) which Geoffrey de Mandeville, earl of Essex, undertook to pay for the right to marry Isabella of Gloucester, the king’s first wife, with possession of her lands. So obviously excessive was it that in May 1215 John himself offered to refer it to the judgment of his court. Whether the twenty-five barons ever presided over such proceedings is unknown. But that no equivalent to Clause 55 is to be found in reissues of Magna Carta after 1215 should not be understood to mean that they tried to enforce it and failed, but rather that one was no longer regarded as necessary. The clauses which it referred back to sufficed to prevent such abuses in future, so that John’s successors did not even try to raise the money they needed through massive amercements and fines.

Most of the clauses in Magna Carta were concerned to forbid abuses of royal power and so prevent their continuance in the future; Clause 55 was one of a few concerned to rectify past misdeeds, in this instance the financial exactions known as amercements and fines. Ostensibly they were different. Amercements were penalties imposed by courts or institutions like the exchequer, whereas fines were settlements negotiated in order to end a dispute or obtain a favour. But under John’s rule fines became increasingly like amercements, not only in becoming ever larger but also in being effectively agreed to under duress, and so were imposed just as amercements were. Clause 55 differed in some significant respects from No. 37 of the Articles of the Barons on which it was based. The Article specified that the fines needing to be pardoned or renegotiated were those made to obtain dowers, marriages and inheritances. These were indeed assets for which many substantial fines were made, but there were also others, and Clause 55 recognised this by widening its scope to cover all fines and amercements, and thus the entire range of John’s financial demands. On the other hand (and unlike Clause 52, another retrospective clause), Clause 55 confined its remit to that king’s actions, and did not extend it back to those of his father and older brother.

The fines and amercements which under Clause 55 were to be either annulled or referred to the judgment of the twenty-five barons responsible for enforcing Magna Carta as a whole, were those made `unjustly and against the law of the land’, a phrase which probably meant that they had not been assessed by the peers, or at any rate the reputable neighbours, of those required to pay them. The drafters of the Clause may have had the penalties for breaches of the forest laws particularly in mind, since these were always both arbitrary and heavy. Nothing was said about the size of amercements and fines, only about the manner of their making, but it is hard to believe that size was not an important consideration behind the Clause, and above all where fines were concerned – amercements affected many more people, especially those imposed by royal justices itinerant, but the fines made by the wealthy and powerful brought much more money into the royal coffers.

All the Angevin kings levied large fines, and the last years of Richard I’s reign saw a marked increase in the sums involved. This upward trend continued and steepened under King John. Fines were increased not only in purely monetary terms but also by John’s practice of demanding additional payments in the form of hawks, dogs and horses, though these were almost invariably converted into cash – an ordinary horse, or palfrey, could add £3. 6s. 8d. to the bill, a warhorse as much as £20. Pressure to pay also intensified. Deadlines became tighter and were more rigorously enforced, so that those who failed to meet them might see their lands sequestrated and then devastated as the king’s agents set about raising the money owed. And the burden of payment was increasingly extended by the practice of demanding that a debtor find pledges, whose number sometimes ran into hundreds, who could not only guarantee that an obligation would be met but might also to be made responsible for meeting it – the pledges often paid a higher proportion of a debt than the principal did. The effect of such methods was to make the impact of fines with the king felt increasingly widely in landowning society, spreading an anxiety and fear which the sheer size of some of the fines made in the last years of John’s reign can have done nothing to alleviate. The king himself may have belatedly understood how much harm his financial measures were doing him, since in May 1215 he offered to refer two massive fines to the judgment of his own court – £6000 owed by Giles de Briouze, bishop of Hereford, for his family’s forfeited lands, and the huge fine, inordinate by any standards, of 20,000 marks (£13,333. 6s. 8d.) made by Geoffrey de Mandeville, earl of Essex, for the right to marry Isabella of Gloucester, the king’s first wife, and for possession of her lands. It is not known if in the weeks after Runnymede the twenty-five barons acted as prescribed to deal with fines and amercements, but Clause 55 did not form part of any of the later reissues of Magna Carta. Probably this was because other clauses prevented the abuses which that Clause had been intended to correct, just as later kings found other, usually less objectionable, methods of raising the money they needed.

Citation

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.