Omnes autem istas consuetudines praedictas et libertates quas nos concessimus in regno nostro tenendas quantum ad nos pertinet erga nostros, omnes de regno nostro, tam clerici quam laici, observent quantum ad se pertinent erga suos.
Moreover, all the aforesaid customs and liberties, which we have granted to be maintained in our kingdom as far as we are concerned with regard to our own men, all the men of our kingdom, both clergy and laity, are also to observe as far as they are concerned them with regard to their own men.
Clause 60 differs only slightly from its equivalent (no. 48) among the Articles of the Barons. The king’s role as grantor was lightly underlined by his use of the royal plural, replacing the impersonal rex of the Article (a change made throughout Magna Carta, however), and by the stipulation that the clause was to be observed in `our’ rather than `the’ kingdom. But the two were identical at all essential points, including the words chosen to demonstrate the Clause’s all-embracing nature. The grant in each document of all the `customs and liberties’ transmitted by Magna Carta must have been intended to cover both those time-honoured actions and procedures which King John (and by implication his father and brother as well) was regarded as having slighted and which the Charter now reinstated (`customs’), and also such innovatory measures as it contained and could be regarded as having been created by royal fiat (`liberties’), whether these were intended to remedy grievances or to extend recently-introduced practice.1 There were to be no exceptions to the remit of the Clause.
As far as the purpose of Clause 60 was concerned, it has been generally regarded as embodying a necessary concession made not so much by King John as by his baronial opponents, to secure the continued support of their allies, followers and tenants, `the free men of our kingdom’ to whom Magna Carta was granted at the outset, and without whose backing it might never have been conceded. Much in the Charter was ostensibly intended to benefit only the magnates. But discontent with, and resistance to, royal government had come to extend far outside the ranks of the baronage, not least, it may be assumed, because the financial pressure which John imposed upon his tenants-in-chief was such that they could only meet his demands by exerting a corresponding pressure upon those beneath them. The massive reliefs sometimes demanded by the king, for instance, must often have resulted in the lords who paid them having to extract considerable sums from their tenants, who as a result demanded a share of the concessions forced from King John in 1215. Clause 60 would both satisfy their expectations and ensure that any disappointment over what was achieved did not cause opposition to the king to fragment.
All this is doubtless true, but there are complicating factors. Many tenants-in-chief numbered other tenants-in-chief among their subtenants, so it should not be automatically assumed that the dealings of great men with their inferiors was all that Clause 60 was about. A note on the roll of the 1199 Staffordshire eyre recording that Earl Ranulf of Chester was in mercy `for the disseisin which he did against John Lestrange’,2 shows how Clause 60 could have been the means of affording redress to a man of considerable local power after he fell out with one of the greatest men in the kingdom – Lestrange was an important marcher baron who held land of Ranulf at Bradnop near Leek, and seems to have offended the earl by granting some of it away.3
But although though such disputes were not uncommon, it nevertheless seems likely that the Clause was indeed principally concerned to extend the provisions of Magna Carta to the tenants of the men who had taken the lead in extracting them from King John, and by extension, to all free men who claimed to have suffered injustice in their dealings with their superiors. The Clause may not have been included without some misgivings, however. The use of the word autem, a conjunction here translated as `moreover’,4 may have been intended to separate Clause 60 from its predecessors, from which it differed in requiring no concession on the part of the king, and also to indicate that it was something of an afterthought. For despite the Clause’s appearance among the Articles of the Barons, there is at least one piece of evidence to suggest that it did not originally form part of the thinking of the rebels concerning the concessions which they set out to obtain from the king. The so-called `Unknown Charter’ was almost certainly a product of a preliminary stage in the negotiations between king and barons, compiled in the early months of 1215 and containing demands of which some were taken into Magna Carta, while others may have been dropped only when the Great Charter was finally drawn up. It was based upon, and has been preserved with, a copy of the charter which Henry I granted to his barons and tenants-in-chief following his coronation in 1100. In that as in other copies, two of its clauses, dealing with reliefs (c. 2) and the treatment of widows (c. 4), concluded by ordering its beneficiaries to extend the new king’s grant to their own men. These ancillary concessions were not, however, carried over into the equivalent clauses of the `Unknown Charter’, from which it could be argued that the barons who drew up the latter had at this stage no wish to extend to those beneath them the rights which they were demanding for themselves.5
Baronial sub-tenants stood to gain from the inclusion of c. 60 in Magna Carta, but so, too, may the king have done. Without explicitly saying so, he acquired a positive interest in both its inclusion and its enforcement by the provision that the clause was to be observed by `all the men of our kingdom, both clergy and laity’, which thus brought within its scope every lord with free tenants,6 and not just the tenants-in-chief.7 Clause 61, the `security clause’, laid down that twenty-five barons were to be chosen who should enforce the Charter against infringements by the king himself, his justiciar, his bailiffs and his servants, but it said nothing about their correcting either their own delinquencies, or those of other barons and their agents. Possibly baronial misgivings led to the issue being put to one side, or perhaps the sub-tenants, having secured the Clause’s addition to the Charter, were then content to leave its implementation to be discussed and defined at a later date.8 Be that as it may, in the immediate circumstances of 1215 it is hard to see how Clause 60 could have been implemented by anyone other than the king, either as a result of direct appeals to him for justice, as seems to have happened in 1225,9 or through actions in his courts, perhaps through presentments made under additions to the articles of the eyre.
John might well have enjoyed posing as the protector of lesser free men against oppression by their superiors, and he would surely have relished the prospects for intervention in baronial affairs which Clause 60 ostensibly offered him. Again there were to be no exceptions, by its application to `all the men of the kingdom’ the Clause ensured that there could no sheltering behind franchises, whether small or great, at a time when their holders were increasingly concerned to maintain their rights against royal officials – references to the privilege of `return of writs’ are first recorded around the end of the twelfth century.10 As far as the application of Clause 60 was concerned, the actions of any lord with free tenants became open to challenge, up to and including those of the earl of Chester and the bishop of Durham, with their well-nigh omni-competent liberties. And indeed, Earl Ranulf of Chester quickly fell into line behind King John when, shortly after the issue of Magna Carta, he made his own grant of liberties to the men of Cheshire and extended its concessions (described as `liberties’ alone, with no reference to `customs’) directly to his palatinate’s under-tenants, doing so, indeed, rather more clearly and forcefully than Clause 60 had done.11
By creating a situation in which, as it would seem, dissatisfied sub-tenants could invoke the king’s intervention against their lords, Clause 60 had the potential to open the way for an extension of royal authority, rather than to limit that authority’s encroachment on baronial rights. The expansion of government under Henry II and his successors was already working to this end. The assize of novel disseisin of 1166 had among its principal aims the protection of sub-tenants against dispossession by their lords, who could be prelates as well as laymen.12 A reinforcement of the doctrine of inalienability in the early years of Henry’s reign led to vigorous efforts by the bishops to recover lands lost in Stephen’s reign, and many disseisins resulted.13 Lords and their agents had long been subject to royal discipline, as shown by the Inquest of Sheriffs of 1170, which investigated not only the misdeeds of royal officers but also those of `the lords of the vills or their bailiffs’.14 Indeed, by 1215 the king had long been accustomed to bypassing the magnates altogether in order to demand the obedience and loyalty of all his free subjects. The assize of arms of 1181, for instance, had required all free men and burgesses to swear allegiance to Henry II,15 while in 1209 John himself had demanded oaths of allegiance from every free adult male in England.16
It would have been in keeping with this trend that Clause 60 gave the king an apparently unlimited warrant for intruding his power into the dealings of his tenants-in-chief with their sub-tenants. Ranulf of Chester may have aimed to avoid such interference when he granted `all the knights and free tenants of the whole of Cheshire’ a privilege akin to Clause 60, since by doing so he could hope to reserve to himself the right to deal with complaints against the barons of his great lordship. It is possible that other tenants-in-chief, too, had doubts about the inclusion of the Clause in Magna Carta, doubts which they expressed in 1217, when a rider was added to what had now become Clause 45 safeguarding precisely those rights which might have enabled them to keep royal power at arm’s length, one which was carried over into all the subsequent re-issues.17
It should be said that this is not the only way in which this addition can be understood, for it could have been included with the more general purpose of extending to individual lords, lay and ecclesiastical, precisely that protection of their `liberties and free customs’ which in 1215 had been granted in the very same words to London and other urban communities.18 Such a possibility is perhaps strengthened by the addition’s occupying a slightly but significantly different place in the 1225 reissue of Magna Carta, so that it came immediately before rather than after what had been Clause 60 and was now Clause 45, as, indeed, it had already done at the equivalent point in the Charter of the Forest of 1217. This can only be speculation, and against it can be set the way in which the monks of Burton Abbey in Staffordshire seem to have understood the rider, for in their house’s text of Magna Carta as it was reissued in 1225 it came where it had been in 1217, placed as though to set limits on the former Clause 60, a position which surely reflected the abbey’s recurrent attempts to reduce its unfree tenants to subordination.19 It was certainly possible to see the 1217 rider in this light, but whether the Burton monks understood its purpose correctly, or whether they deliberately misinterpreted its intentions for their own benefit, it is ultimately impossible to say.
There were thus ambiguities in Clause 60 which presented opportunities for all involved in its devising and implementation. These included King John, but it is not necessary to suppose that he was himself primarily responsible for the addition of the clause to Magna Carta, that with characteristically Machiavellian cunning he saw how under the pretence of offering a remedy for injustice he could weaken the rebellious barons by separating them from their followers. Rather its presence shows how calls for reform, emerging from what are now largely unsoundable depths within free society to echo those made by the magnates, created pressures which were bound to have repercussions below the level at which the king dealt with his tenants-in-chief. Those pressures could hardly be relieved without an acceptance by the barons, presumably in response to demands from their own men, that the king’s concessions should be extended to the latter, even though this also required the involvement of the king in making that acceptance effective. A balance between these two elements was never going to be easily struck, and in fact a further effort to achieve this had to be made, again involving both the king and the magnates, as part of the reform programme of the late 1250s.20
The extent to which sub-tenants actually needed the protection against oppression and injustice at the hands of their lords which c. 60 of Magna Carta afforded them is inevitably very hard to assess. There is no reason to suppose either that the misuse of power was rarer in the early thirteenth century than at any other time, or that it was only confined to King John, but clear-cut examples of misconduct by magnates at the expense of their tenants are not easily found. The assize of mort d’ancestor, as it originated in clause 4 of the Assize of Northampton of 1176, was specifically intended to prevent the lord of a fee from denying the succession to it to the heir of the previous holder.21 Yet very few examples have been found of proceedings resulting from the assize, despite its great popularity, in which a tenant-in-chief was shown to have wilfully deprived a sub-tenant’s heir of his inheritance.22 Recorded concessions by barons, whether of land or anything else, are usually neutral in tone, and rarely contain evidence of having been made against a background of complaint, though it seems likely enough that many were in fact made to remedy grievances.
An exception may have been the charter which Peter de Brus, lord of the North Yorkshire barony of Skelton, granted between 1207 and 1209 to the knights and free tenants, `and their men’, of the wapentake of Langbargh, the unit of local government within which Skelton stood, and which he had just bought the from the king.23 Possibly the charter resulted from his efforts to recover the 400 marks (£233. 6s. 8d.) spent on his purchase, or it may only reflect the fears of those who had newly become his men. It certainly suggests some of the methods whereby the resources of tenants could be exploited by their lords, and especially through his court, for Peter guaranteed that his men would only be summoned to the court of the wapentake through `reasonable’ and established procedures, that they would not be harassed by artificial lawsuits (`by pretence of a plea’), and perhaps most important of all (and anticipatory of Clause 20 of Magna Carta), that any penalties would be assessed in proportion to the means of the offender and the seriousness of his offence.
Peter also pledged that his officers would observe these conditions, and accepted restrictions on their number, reflecting another potential hindrance to the identification of acts of oppression by lords against their tenants. Where a subtenant was moved to seek legal redress against his lord, he must often have acted against the latter’s agents rather than against the lord himself, without necessarily identifying them as such, so that the court roll simply records how one obscure individual had sued against another. Many, indeed, must have hesitated to take action against their lords at all, for fear of the possible consequences – whether a lawsuit succeeded or failed, a lord’s resentment remained something to be avoided. In 1214 one Elias of Farnham, Essex, gave the king £2 `so that he might be delivered from the prison in which he was because he appealed Gilbert the Englishman his lord’, the result of what had clearly been a bitter dispute between the two men – Gilbert, a tenant of Richard de Muntfichet, was himself imprisoned with seven of his men `for the trespass which they did concerning the houses of Elias of Farnham and other injuries done to him’, and only secured his release on conditions which included paying Elias 50s. in damages.24
Notwithstanding the possible difficulties, however, it is still possible to gain some idea of the sort of offences which the powerful could commit against the relatively weak, and hence of the protection the observance of c. 60 could have afforded to the latter. Some of the clauses of Magna Carta, indeed, were overtly intended to give such protection, notably Clause 15, which limited the occasions on which a lord could take an aid from his men. In October 1207 Robert Mortimer of Attleborough, an important landowner in Norfolk, brought an action coram rege against twelve of his tenants to compel them to contribute to an aid intended to reimburse him for his service in Poitou two years earlier.25 He claimed to have the authority of a royal order for his demand, but his tenants resisted him on precisely the grounds upheld by Magna Carta, that no aid was due to their lord except for the ransom of his person, the marriage of his first-born daughter and the knighting of his eldest son. The case was adjourned, and its outcome is not recorded, but it seems likely either that Robert continued his suit and lost, or that he abandoned his action, for he chose instead to bypass the courts in favour of a direct approach to the king – in 1208 he proffered a palfrey `for having a reasonable aid from his free tenants ... according to the size of their tenements which they hold of him’, and had paid his fine in cash (five marks) by Michaelmas.26 Presumably the tenants then paid up, helping to explain why their leader, Nicholas the butler, later rebelled against King John.27 No doubt it was men like Nicholas who secured the inclusion of Clause 15 in Magna Carta, where it would have barred the king from intervening on Robert Mortimer’s behalf, and also the more general protection afforded them by Clause 60, which would have prevented Robert from making such a demand on his tenants in the first place.
A number of other clauses, though less categorical about their purposes, were nonetheless capable of being invoked by tenants and sub-tenants against their lords. Thus had Germanus of Chessington failed in other recourses, he might still have been able to invoke Clause 16 – `No person is to be distrained to do more service for a knight’s fee, or for another free tenement, than is owed for it’ – when in 1205 he resisted what he claimed were excessive demands by Brian FitzRalph for services owed for the land he held of him in Chessington, Surrey: a fifth of a fee, and as much as was due from a hide of land, claimed Brian, only half as much, according to Germanus.28 But the surviving evidence suggests that Clause 39 – `No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land’ – was the one most likely to be called in aid, as it might have been, for instance, by Elias of Farnham.
Lords of all kinds, no less than the king, were to be required to act in accordance with what had become accepted practice, for instance with regard to the workings of their courts, where procedure had become increasingly elaborate. When Stephen de Bretteville brought an action of novel disseisin against the bishop of Exeter, the court coram rege heard how the bishop had himself proceeded in his own court against Stephen for arrears of scutage and reliefs, and how three formal summonses had been followed by distraint of goods by three different pairs of distrainers, before Stephen’s fee had itself been taken in distraint, to be several times offered back to him should he give security, which he persistently refused to do – unsurprisingly, his case was dismissed.29 Others were less careful to observe the formalities. When in 1199 Sarah daughter of William sued Geoffrey of Titsey, a minor tenant-in-chief in Surrey, for disseising her of land in Edenbridge, she won her case when Geoffrey’s claim to have acted by judgment of his court was contradicted by a jury.30 In a similar case, heard at the 1218/19 Yorkshire eyre but originating earlier, Ranulf de Novo Mercato, who had disseised Roger son of Walter of his rights in common pasture at Hickleton for seven years’ arrears of service, was firmly instructed by the justices that `he should deal with him by judgment of his court and distrain him by his fee to do his service with the arrears.’31 In both these cases the disseisors were relatively unimportant men found to have been procedurally at fault in their dealings with those beneath them.
In other cases the procedure itself may have been less than certain, though the results might be much the same. When the East Anglian landowner Peter FitzGeoffrey sued Walter son of Humphrey in the bench in Trinity term 1200 for the homage and service due to him from a fee in Yeldham, Essex, Walter responded that he had been disseised by Earl Richard of Clare, not for any deficiency of his own, but because Peter, who appears to have only recently come into his inheritance, had failed to do homage and pay a relief to the earl.32 The latter’s steward upheld Walter’s claim, and added that Clare was still in occupation of the property. Peter then denied that Walter had been disseised at all, the case was remanded to a future session, and its outcome is unknown, but the pleadings show how it was possible for a lord to sequestrate one man’s estate on the basis of another man’s default. Clare may well have obtained a judgment of his court against Peter, but there is nothing to suggest that one was given against Walter, even though he was the man allegedly put out of his land. Clause 60 could have provided him with the means of obtaining redress from an overlord who might never have heard of him.
Walter may simply have been unfortunate in having been caught up in proceedings involving men more important than himself. And in any case oppressive lordship was not in itself necessarily in breach of law. When around the end of John’s reign Richard of Stapleton was so `aggrieved by the harsh lordship [de duro dominio] of Richard Mallory’ that he surrendered to the latter the land he held of him in Kirkby Mallory,33 Mallory may perhaps have offended against the social norms which defined acceptable lordship, but he was not recorded as having acted unlawfully. Men of power may not in fact always have needed to employ illegal methods to attain their ends. A royal henchman like William Brewer could, it seems, accumulate large estates without even nominally breaking the law at the expense of the men and women whose losses provided him with his gains, it was royal favour, and the wealth and opportunities for patronage which this brought him, rather than outright injustice, which enabled him to prosper mightily.34 Other lords, however, of comparable standing, certainly resorted to violence and fraud against those beneath them.
One of them was Theobald Butler, the brother of Archbishop Hubert Walter and a long-term servant and associate of King John.35 Appointed sheriff of Lancashire in 1194 by Richard I, who also granted him the whole wapentake of Amounderness, he abused his powers with a tyrannical vigour that was still remembered nearly sixty years later – an inquest held in 1253 recorded how `because of his many transgressions in seizing the lands of Robert son of Bernard, Walter son of Osbert, William son of Swan, and others of Amounderness, and other injuries, the king disseised him of all his lands.’36 The king in question was John, who in 1199, and again in 1201 when he travelled through the north of England, was beset by so many complaints against Theobald’s misrule that he clearly felt unable to ignore them.37 Entries on the fine rolls show that Walter son of Osbert had been forced into an unfavourable exchange of lands,38 while others were simply dispossessed, for instance Richard of Freckleton, who paid five marks to recover pasture `of which Theobald disseised him unjustly and without judgment, as was found by a jury of lawful men ...’.39
Theobald lost both his shrievalty and his lordship in Lancashire late in 1199, but later regained the king’s favour, probably thanks to his brother the archbishop, who was himself later accused, apparently with justification, of making free with other men’s estates. Hubert Walter died on 13 July 1205, and after his death, so it was reported seven years later, `there came many complaints to the king by men whom the archbishop had disseised of their lands, so that in response to their complaint the king ordered inquests to be made whereby many of those plaintiffs recovered seisin of their lands ...’.40 Adam of Charing, whose family had been farming the manor of Charing, south-west of Canterbury, from successive archbishops for the best part of a century, was among the men who claimed to have been disseised.41 John’s reported opinion that Hubert had been consigned to hell may not have been only due to his relief at no longer having to rule under the shadow of an overmighty servant.42
Other magnates can be seen to have been equally ready to dispossess their own tenants. In 1202 two Lincolnshire magnates, Gilbert de Gant and Simon of Kyme, were convicted of carrying out disseisins in Barton upon Humber and Sotby respectively, both townships of which they were the overlords.43 In 1213 King John ordered the reinstatement of Geoffrey Huse in the fraction of a fee which he held of Warin FitzGerold at Harnham, Wiltshire, as part of Warin’s barony of Stogursey, after his disseisin by his overlord, apparently for failing to perform the service demanded of him – Geoffrey had been in the royal host summoned to defend the coasts of Kent at the time.44 Nor was it only magnates who ejected their tenants from their holdings. In 1221 one Henry of Drayton was found to have been disseised on his deathbed by his lord, Joelin of Sowe (a tenant of the prior of Coventry), who intended thereby `to bar his heir from the writ of mort d’ancestor ...’45 – clearly he believed (mistakenly, as things turned out) that since Henry had not been in possession at the actual time of his death, his son would be unable to claim the right of inheritance which the writ was intended to safeguard. To make matters worse for those who suffered thus at their lords’ hands, ejection might be accompanied by pillage. Richard de Muntfichet of Wallington, a member of a junior branch of the baronial Muntfichet family, and as such the lord of several manors, was found to have disseised Katherine, the widow of John de Muntfichet (presumably Richard’s kinsman) of her free tenement in his manor of Burleigh, Hertfordshire, and in the process to have inflicted damage assessed at thirty-five marks (£23. 6s. 8d.), `both in the rooting up of garden and wood and houses, and in the sale of horses and oxen and other animals, and in the carrying away of her chests and clothes and in the delaying of her sowing.’46
The records do not say why lords like Joelin of Sowe and Richard de Muntfichet acted as they did. It may be that they had no motive other than to increase their holdings of land, but although greed for possession was doubtless the commonest motive for disseisin, there is no reason to suppose that it was the only one. All the signs are that the arrogance of power, vindictiveness, and sheer irresponsibility were as likely to move lords to take action to enforce their will or show their displeasure at the expense of those beneath them as they were to act upon the king himself. When William Baucan brought an action against Earl William of Devon in 1214, in which he alleged that he was being prevented from taking crops and receiving rents from land which the earl himself had given him, by a charter which he presented in court, he was in effect complaining of having lost the favour which Earl William had previously shown him, for services which included acting as the earl’s attorney. The earl did not condescend to explain his actions, however, and his representative had the case dismissed on a technicality.47
King John’s anger was one of the mainsprings of his rule. Ralph son of Sireth, a Norfolk landowner, sued in 1208 by Walter of Creeping Hall for failing to observe the terms of a fine concerning land at Ellingham, Norfolk, acknowledged the settlement, but explained that `the earl of Arundel was angry with him because he made that fine and disseised him of the whole land ... so that he does not have the wherewithal to pay him that rent ...’.48 Kings who gave mutually contradictory orders found parallels in lords like Roger Bigod, earl of Norfolk (one of the twenty-five barons charged with upholding the terms of Magna Carta), who was found in around 1209 to have given her dower to Helen, the widow of Geoffrey son of Warin, a landowner at Cretingham, along with the custody of Geoffrey’s son and heir, but then to have been persuaded to grant the wardship to others. Further proceedings revealed that the heir, named Robert, had subsequently presented himself before Earl Roger to claim his inheritance, and was permitted to do homage and enter into possession, even though when he appeared before the king’s justices in 1214 `he did not appear to be more than seven years old’, with the result that what was described as `the custody of the aforesaid child (infantis)’ was returned to his mother and her new husband.49 Helen had first approached the earl in his capacity of `chief lord’ of Geoffrey son of Warin’s lands, but clearly found him heedless of his seigneurial obligations towards both her son and herself. The fact that in later proceedings brought by Robert concerning the manor of Freston his opponent claimed that he had been unable to observe the terms of a fine made by his father because `he cannot have that land because of the violence (per forciam) of Earl Roger le B.’, an allegation which Robert did not deny,50 suggests, indeed, that the earl’s misuse of his local power could go some way beyond mere irresponsibility.
Tenants-in-chief were vulnerable at times of succession to property, and so could their sub-tenants be. No sooner had Roald FitzAlan re-united the constabulary of Richmond by recovering the lands formerly held by William de Rollos – it had been divided between the ancestors of the two men since the reign of King Stephen – than he ejected a number of William’s tenants from their lands, on what grounds is unknown. The response of the tenants, which appears to have been unique in John’s reign, is of particular relevance in the context of Clause 60, in that they obtained direct royal intervention to secure their reinstatement. Eleven named men, mostly identifiable as small landowners on the constable’s fee, acted together to proffer £10 `for having such seisin of their lands and chattels as they had on the fee formerly that of William de Rollos ...’, and paid the money within two years.51 Such an act of royal intervention between a lord and his men may well have been what the drafters of Clause 60 had in mind, though perhaps without its having to be paid for, and what they would otherwise have looked for in vain before 1215, when the law-courts provided the only recourse for men who had been misused by their lords.52 Hence, for instance, the action brought by Godfrey de Waure, apparently a Fleming who had been granted the Suffolk manor of Dennington by Duke Henry of Lorraine while the latter held it as part of the honour of Eye. In 1208 he sued to recover lands which had been granted out by the earl of Salisbury, `who disseised Godfrey of it by his will while the honour of Eye was in his hand through the lord king ...’, and seems eventually to have recovered what he had lost.53
When a great lordship like Eye changed hands, or when it fell into wardship because a deceased lord had left a minor as his heir, its tenants must often have trembled for their rights, and with good reason. The Yorkshire baron Gerard de Furnival, having been granted custody of the heir and lands of William de Luvetot late in Richard I’s reign, proceeded to eject Ralph of Ecclesfield from his lands at Ecclesfield, Grenoside and Woolley (all places a few miles north of Sheffield, and so within the Luvetot lordship of Hallamshire), and to cut down trees worth well over £500.54 For men in Ralph’s position, and similarly for anyone dispossessed when a former lord was restored following a break in tenure, the only hope of restitution normally lay in legal action. It was through litigation and a court order that the tenants of William of Windsor, disseised of their lands by their lord following his recovery of his estates after they had been briefly in the king’s hands, won the restoration of their property in 1212 and later.55
There are obvious similarities between the ways in which lords could abuse their authority over men and the dealings of some magnates with monasteries of which they were patrons or benefactors. The parallels cannot be regarded as exact, but there were links of dependency which make the analogy acceptable, and also useful, thanks to the additional detail sometimes provided by monastic chronicles (although their reliability cannot always be taken for granted), and by the charters which might be issued by lords when they settled disputes or remedied grievances. Two instances of oppression of monasteries by their patrons, that of Binham Priory by Robert FitzWalter and of Walden Abbey by Geoffrey FitzPeter, are described in the commentaries on Clauses 40 and 46 respectively. The king’s intervention led to FitzWalter raising his siege of Binham, but FitzPeter’s harassment of Walden continued for several years, despite the efforts of authorities secular and ecclesiastical, up to both king and pope, to arrange a settlement.
A religious house rarely commanded the resources to enable it to match the physical force which a lay lord could deploy in the pursuit of his interests, and should in any case have been inhibited by its own values from attempting to do so. By way of compensation, however, monks and canons were well equipped to invoke supernatural sanctions against those who persecuted and robbed them. They had no discernible effect upon Geoffrey FitzPeter, but the note of deep penitence struck by the charter which Adam (ii) de Brus, lord of the barony of Skelton, gave to Guisborough Priory, in the North Riding of Yorkshire, in the 1170s, certainly suggests that religious fear had helped to bring him to repent of past misdeeds: `... Know that since my canons of Guisborough labour under many tribulations, in that I, following evil counsel, have so harassed them over their possessions, both ecclesiastical and secular, granted to them in free alms by Robert de Brus my grandfather, that by force and fear I have extracted from them an outrageous grant which they have confirmed by their charter ...’ – this concession, which Adam now revoked as monstrous, inordinate and contrary to canon law, had involved granting his clerk a pension from Skelton church, promising him the incumbency when it became vacant, and giving Adam the right to choose all future parsons.56 He could describe the canons of Guisborough as `my’ because his grandfather had founded their monastery and given it a generous endowment which included nine churches, one of them that of Skelton – Adam may well have wanted to provide for his clerks by presenting them to parish churches, and then, when he found that their advowsons were not at his disposal, taken direct action to obtain them.
Benefactors and their kin could be as troublesome as patrons. Particularly full and revealing in this context are the accounts of a monastery’s difficulties recorded in the chronicle of Meaux Abbey, a Cistercian house founded by Count William of Aumâle in the mid-twelfth century on a site a few miles north of Hull. Composed by Thomas Burton at the end of the fourteenth century, but based on earlier chronicles and on extensive documentary research, it tells how William endowed the abbey generously, while numerous other landowners made grants, but also how in a number of cases the successors of benefactors made efforts to recover what their forebears had given. Thus although Robert (iii) de Stuteville, lord of Cottingham, had given the monks the site for a mill on the River Hull, along with other properties and privileges, his son William, described as a man of great power (`praepotens’), took the mill away from them, and used a combination of threats and deceitful promises to extract his father’s charter from them as well. He gave the site for another mill, but then constructed one of his own where it interfered with the workings of the monastery’s, and although he eventually returned some lands he had seized, he did so only as part of an enforced exchange.57
The chronicler’s emphasis on the power of William de Stuteville is echoed in his account of his house’s dealings with another benefactor, Geoffrey Trussebut, lord of Hunsingore, who himself gave Meaux lands at their grange of Blanchemarle but then, perhaps because he wanted to promote the interests of Warter Priory, an Augustinian house of which he was patron, seized them back and ejected all the monks and lay-brothers whom he found there. He was able to do this unopposed due to the son and sisters of the landowner on whose estate the grange had been established being then at loggerheads, and so, tellingly, `the monks then found no defender ...’. Meaux raised 100 marks in the hope of buying Geoffrey’s good will, and though the money and the monk carrying it were lost at sea, in around 1180 peace was made and Geoffrey made grants to the abbey which Henry II confirmed – an example of royal power being invoked to give added protection to.the relatively weak against the locally strong.58
Not that royal power was necessarily any more effective than divine authority. William Fossard, lord of the barony of Mulgrave, died in 1195, leaving as his heir an under-age daughter named Joan, whom Richard I gave in marriage to Robert of Thornham, a prominent royal servant who was then seneschal of Gascony. The monks now faced a campaign of harassment by Joan’s mother Beatrice, who claimed their land at Wharram le Street (the site of one of the monastery’s largest granges, eventually comprising 1327 acres) as her dower, and was eventually bought off with a portion of it worth £10, and then by Thornham himself, who claimed all the lands at Wharram as part of his wife’s inheritance, got possession of them with the assistance of Archbishop Hubert Walter, who was then justiciar, and then when the archbishop changed his mind refused to give them up. An offer of 100 marks from the abbey’s patron, the count of Aumâle, achieved nothing, Thornham was not to be moved, `neither by the archbishop nor by the king himself or anyone else ...’. He threw all the lay-brethren and monastic staff out of the grange except for two men who were kept in close confinement for over a month, and having had all the buildings demolished, including the mill, used their timbers to make houses for himself at Birdsall. The unexpected death of King Richard, it is implied, brought Thornham to repentance and restitution, but he could not be persuaded to compensate the monastery for the damage he had done.59
Lay lords could be just as aggressive in their dealings with members of the secular clergy. Philip de Sanderville gave land for a chapel at Ruxox, south of Bedford, probably in the 1160s. His grant was so resented afterwards by Philip’s son and son-in-law that they harried its priest into renouncing his position and surrendering his charters in the presence of the bishop of Lincoln.60 And the religious were themselves fully capable of oppressing their dependents and tenants. The case of the tenants of St Augustine’s abbey, Canterbury, at Minster in Thanet, who in 1198 felt so aggrieved by their treatment by their lord that they crossed to Normandy to complain (unsuccessfully) to King Richard `of the unjust customs which the abbot was demanding of them’, may be an example of this.61 More certainly, the conduct around the same time of Abbot Samson of Bury St Edmunds towards his monastery’s tenants at Babwell, at the northern end of Bury, was such that not even his devoted biographer, Jocelin of Brakelond, felt able to excuse it, but numbered it among his sins that `he has so raised the level of the fish-pond at Babwell, for the new mill, that there is not one man, rich or poor, who has land next to the river between the town gate and the east gate, who has not lost his garden and orchards as a result of the flooding. The cellarer’s pasture, on the other bank, has been ruined, and the neighbours’ arable land is spoiled ...’. The cellarer’s complaints were overridden by Samson, who declared that `he was not going to sacrifice his fish-pond for the sake of our meadow ...’.62 Clause 60, with its universal application, might have enabled the abbey’s free tenants to obtain a remedy even against the redoubtable Samson.
Samson died at the end of 1211, so there is no way of telling how, or indeed if, the townsfolk of Bury might have appealed to Clause 60 in the hope of moderating his overbearing rule. The clause was clearly not a dead letter after 1215, but records of its being invoked appear to be rare. Several reasons can be suggested for this: abuses of the kind which led to its inclusion in the Charter may in fact have been rare, or become rarer in response to Clause 60; or the Clause may have been primarily appealed to in courts whose records have not survived; or its being invoked was actively discouraged in order to keep royal intervention to a minimum, in much the same way that efforts were made to exclude the general eyre later in the thirteenth century. But the resulting scarcity of evidence makes it hard to discern the Clause’s purpose as well as its efficacity. It is easy to see how its inclusion in Magna Carta could be seen as displaying King John’s political skills, even though such an interpretation seems unlikely to be correct. It is no less easy, and probably better-founded, to regard it as showing a lack of political imagination on the part of the king’s adversaries. From the practice of diffidatio, the renunciation of fealty which traditionally licensed armed resistance to a despotic ruler, they derived the security clause which followed Clause 60 in Magna Carta, authorising a kind of temporary and conditional withdrawal from their allegiance which would then allow them to compel the king’s adherence to the Charter by force of arms. Understandably, this was regarded as revolutionary and proved unworkable.
Clause 60 presented similar problems of enforcement. In a world whose social and political structures derived from and rested upon kingship, the barons seem to have been unable even to contemplate usurping the king’s traditional right to receive, and respond to, complaints of injustice, whether committed by themselves or anyone else, and so left the way open for him to exploit differences between themselves and their tenants. Perhaps they could not imagine the latter appealing for his intervention, after all the extortions and malpractices which they had endured along with their lords at John’s hands, compounded by the effects, also shared, of the six-year interdict which the king’s quarrel with the pope had brought upon the kingdom – the rebellious magnates may simply have seen themselves as heading an unshakeable alliance of principled lords and loyal tenants, within which the former made concessions to the latter in the confident belief that they would never be used because they were ultimately unnecessary. King John, it may be assumed, saw Clause 60 in a different light. To him it may have had the character of a kind of warranty clause for the entire Charter, under which he could be called upon to uphold any part of it against the very men who had forced it on him. Even if doing so entailed maintaining practices or principles which he resisted or rejected, it still gave him opportunities for intervention which might prove advantageous to himself.
Clause 60 set down the determination of the lesser barons and knights who supported the rebel lords that Magna Carta should be observed throughout the free society of which they were the pillars, but the contradiction between the Clause’s purpose and the means available for enforcing it may have proved impossible to resolve. As a result – the occasional reference or recourse notwithstanding – its essential character was ultimately that of a rhetorical flourish, one which proclaimed the significance of Magna Carta by underlining the extent of its application. And therein, it could be said, lay its importance.
Only in c. 60 are customs and liberties mentioned together. Customs, in the sense of duties on trade, are referred to in c. 41, otherwise only in c. 48. Liberties occur in cc. 1, 13, 52, 56, 58, 61 and 63.
G. Wrottesley (ed.), `Staffordshire suits, extracted from the plea rolls temp. Richard I and King John’, William Salt Archaeological Society 3 (1882), 1-163, at 38.
Victoria County History of Staffordshire vii (1996), 169-75.
The word occurs in several clauses of Magna Carta and is also capable of being translated as `however’ – it is used to convey both meanings by Holt and Carpenter, in books cited below, according to context.
See also D. Carpenter, Magna Carta (2015), 152, 319. The `Unknown Charter’ is printed and discussed by J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 418-28.
And in some respects those with unfree tenants as well. Paul Brand has pointed out to me that villeins could have looked to Clause 20 for protection against excessive amercements by their lords.
A point made by Carpenter, Magna Carta, 142-3.
A possibility suggested to me by David Carpenter.
Patent rolls of the reign of Henry III, 1216-1225, 575-6
J. Hudson, The Oxford history of the laws of England ii: 871-1216 (Oxford, 2012), 563.
G. Barraclough (ed.), The charters of the Anglo-Norman earls of Chester, c. 1071-1237, Lancashire and Cheshire Record Society 126 (1988), 390.
D.W.Sutherland, The assize of novel disseisin (Oxford, 1973), 30.
M. Cheney, `The litigation between John Marshal and Archbishop Thomas Becket: a pointer to the origin of novel disseisin?’, J.A. Guy and H.G. Beale (eds.), Law and social change in British history (1984), 9-26, esp. 18-21.
D.C. Douglas and G.W. Greenaway (eds.), English Historical Documents ii: 1042-1189 (2nd edn., 1981), 472.
J.R. Maddicott, `The oath of Marlborough: fear, government and popular allegiance in the reign of King John’, English Historical Review 126 (2011), 281-318
H. Rothwell (ed.), English Historical Documents iii: 1189-1327 (1975), 337.
I owe this suggestion to Paul Brand.
See D.A. Carpenter, 'Feature of the Month: December 2015 - The Saving Clause in Magna Carta: New Light Shed on its Meaning by the Copies of the 1225 Charter at Burton Abbey', The Magna Carta Project [http://magnacartaresearch.org/read/feature_of_the_month/Dec_2015_3 accessed 22 February 2016]
R.F. Treharne and I.J. Sanders (eds. and trans.), Documents of the baronial movement of reform and rebellion, 1258-1267 (Oxford, 1973), 132-3; P.A. Brand, Kings, barons and justices: the making and enforcement of legislation in thirteenth-century England (Cambridge, 2003), 31-2.
English Historical Documents ii, 445.
Cf. the comments of S.F.C. Milsom, The legal framework of English feudalism (Cambridge, 1976), 166-7
Holt, Magna Carta, 67-70. See also Carpenter, Magna Carta, 146-7.
Curia Regis Rolls vii, 12-16 John, 1213-1215 (1935), 165, 177. For Gilbert’s landholdings see Liber feodorum. The book of fees commonly called Testa de Nevill, 2 vols. in 3 (1920-31), ii. 1161.
Curia Regis Rolls v, 8-10 John, 1207-1209 (1931), 39 (a case drawn to my attention by David Carpenter). T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit. Pat.), 53, records Robert’s service in Poitou. For his landholdings see F. Blomefield, An essay towards a topographical history of the county of Norfolk i (1805), 506-8.
T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 427; PR 10 John (1208), 14.
T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1224 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 334.
Curia Regis Rolls iii, 5-7 John, 1203-1205 (1926), 283.
F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols. (Record Commission, 1835), ii, 58-9, 117. For Geoffrey’s landholdings see Book of fees i. 69. He was a tenant-in-chief through holding two fees of the honour of Gloucester, then in the king’s hands.
D.M. Stenton (ed.), Rolls of the justices in eyre ... for Yorkshire in 3 Henry III (1218-19), Selden Society 56 (1937), no. 46 (pp. 21-2).
Curia Regis Rolls i, temp. Richard I – 2 John, 1196-1201 (1922), 177-8.
D.M. Stenton (ed.), Rolls of the justices in eyre ... for Gloucestershire, Warwickshire and Shropshire, 1221, 1222, Selden Society 59 (1940), no. 1450 (pp. 607-8).
R.V. Turner, Judges, administrators and the common law in Angevin England (1994), 269-87.
For Theobald’s life see M. T. Flanagan, ‘Butler , Theobald (d. 1205)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/4207, accessed 9 Dec 2015]
Calendar of inquisitions post mortem i: Henry III (1904), no. 264.
Rot.Ob.Fin., 33-4, 115-16, 123-4.
Curia Regis Rolls vi, 11-14 John, 1210-1212 (1932), 271. Cf. the judicious comment of C.R. Cheney, Hubert Walter (1967), 112 – `Charges of oppression were made. They are not proved; but they are hard to disprove ...’.
Rot.Ob.Fin., 301-2. For other examples see ib., 334-5, 337. For Adam of Charing see F.R.H. Du Boulay, The lordship of Canterbury:an essay on medieval society (1966), 200-1.
H.R. Luard (ed.), Matthaei Parisiensis ... Chronica Majora, 7 vols. (Rolls Series, 1872-83), ii. 559.
D.M. Stenton (ed.), The earliest Lincolnshire assize rolls, A.D. 1202-1209, Lincoln Record Society 22 (1926 for 1924), nos. 173, 1456.
Rot.Lit.Claus. i, 138; Book of fees ii, 731 provides tenurial background.
Rolls of the justices in eyre ... for Gloucestershire, Warwickshire and Shropshire, no. 474.. Book of fees ii, 955 records Joelin’s son Simon as holding land in Sowe of the prior of Coventry.
Curia Regis Rolls iii, 287. For the Muntfichets of Wallington see Victoria County History of Hertfordshire iii (1912), 120-2, 286.
Curia Regis Rolls vii, 175; R. Bearman (ed.), Charters of the Redvers family and the earldom of Devon, 1090-1217, Devon and Cornwall Record Society new series 37 (1994), 174.
Curia Regis Rolls v, 294-5.
Curia Regis Rolls vii, 243, 245-6
Curia Regis Rolls ix, 4-5 Henry III, 1220 (1952), 119.
Rot.Ob.Fin., 253, 266, 289; PR 7 John (1205), 59; PR 8 John (1206), 202; PR 9 John (1207), 87. Details of many of the tenants can be found in C.T. Clay (ed.), Early Yorkshire charters iv: the honour of Richmond, 2 vols., Yorkshire Archaeological Society, Record Series, Extra Series 2-3 (1935-6). For the background see Holt, Magna Carta, 104-5.
There are a great many recorded instances of John acting for and against the men of his tenants-in-chief, but they always seem to have occurred when wardship, confiscation, forfeiture or escheat had brought their lands into his hands, not when they were in the uncontested possession of their lords.
Curia Regis Rolls v, 305-6; B. Dodwell (ed.), Feet of fines for the county of Norfolk ... 1201-1215, for the county of Suffolk ... 1199-1214, Pipe Roll Society new series 32 (1958), no. 491 (p. 235); V. Brown (ed.), Eye Priory cartulary and charters ii, Suffolk Records Society, Suffolk Charters xiii (1994), 67-8; T.D. Hardy (ed.), Rotuli chartarum, 1199-1216 (Record Commission, 1837), 176. The honour of Eye was committed to the earl of Salisbury in February 1205, Rot.Lit.Pat., 50.
Palgrave, Rotuli Curiae Regis ii, 165-6.
Curia Regis Rolls vii, 81-2, 140-1, 204. For the background to these actions see commentary on c. 39, section headed `Debtors and other targets’.
W. Brown (ed.), Cartularium prioratus de Gyseburne, 2 vols., Surtees Society 86, 89 (1889-94), ii. 125-6. Adam’s grandfather’s foundation charter, which includes the grant of churches referred to below, is printed ib., i. 1-3.
E.A. Bond (ed.), Chronica monasterii de Melsa, 3 vols. (Rolls Series, 1866-8), i. 227
Ib., 172, 211; C.T. Clay (ed.), Early Yorkshire charters x: the Trussebut fee, Yorkshire Archaeological Society, Record Series, Extra Series 8 (1955), nos. 90-1 (pp. 136-7).
Chronica monasterii de Melsa, i. 231-2, 289-91. For the grange at Wharram see C. Platt, The monastic grange in medieval England (1969), 77.
C.T. Clay (ed.), Early Yorkshire charters vii: the honour of Skipton, Yorkshire Archaeological Society, Record Series, Extra Series 5 (1947), no. 49 (pp. 102-3); G.H. Fowler (ed.), A digest of the charters preserved in the cartulary of the priory of Dunstable, Bedfordshire Record Society 10 (1926), no. 115 (pp. 40-1).
Curia Regis Rolls vii, 341-2, 343. Suit of court seems to have been at the heart of the dispute, which by 1198 had been in progress for over twenty years, William Thorne’s Chronicle of St Augustine’s Abbey Canterbury, trans. A,H. Davis (Blackwell, Oxford, 1934), 111-12, 135.
Jocelin of Brakelond, Chronicle of the abbey of Bury St Edmunds, trans. D.Greenway and J. Sayers (Oxford, 1989), 116.
Please note: commentaries are presently available only for clauses marked with *; more commentary to be added in due course.