The Magna Carta Project

Citation

(a) Context and processes

Among the articles of the barons the equivalent of this clause is placed fifth, and there is no obvious reason for its occurring where it does.  But in Magna Carta the purpose of Clause 9 is made clearer by its being placed immediately before two other clauses relating to debt, in both cases those owed to Jews, and it also contains some small but possibly significant differences in content from Article 5.  The addition of a phrase laying down in so many words that a debtor’s sureties were to answer for what the principal defaulted upon may have been added only so as to make explicit what was implicit from the first, and the same may also have been true of the addition of rents to lands in Clause 9’s statement of what might, or might not, be seized in distraint, and of what a principal’s pledges could lawfully enter upon in order to obtain compensation for what they had paid for him.  But this second addition may also show an awareness on the part of those drafting the Charter that rents had relatively recently – between about 1187 and 1194 – come under the protection of novel disseisin,1 and had thus acquired a legal status which they seemingly did not have before, one that made it appropriate for them to be treated in the same way as free land when the holder of both was distrained for debt.

Clause 9 does not state in so many words that it is concerned with debts to the king, and its drafters may have had in mind the possible need to control the activities of royal officials collecting money owed to private individuals who had persuaded or paid the crown to put its coercive powers at their disposal.  But at the time Magna Carta was issued there can be little doubt that the clause’s main target was the debts owed to the king and the methods used by his agents to enforce their payment. Debt certainly featured prominently among the records of English government in the late twelfth and early thirteenth centuries, and it could weigh very heavily upon those affected by it, especially during John’s reign.  Earlier historians have commented on the relatively relaxed treatment allowed to crown debtors under Henry II,2 and this is given semi-official confirmation by the Dialogus, seemingly largely written in the 1180s, which meticulously hedged with restrictions the goods which could be taken in distraint for what was owed to the king, and made no clear provision for the seizure of lands except in the case of townspeople.  Chattels were to be taken in a prescribed order, with plough oxen being seized last, enough food being left to enable the debtor and his family to keep bodies and souls together, and a knight being allowed to keep the horse on which he normally rode; if the debtor’s personal goods were insufficient to pay the debt then those of his villeins could be taken as well, albeit subject to the same provisos, but when all these processes had been gone through, then except when the money was owed for scutage, `whether the required sum has been raised or not, our law (lex nostra) requires the sellers to desist ...’.3  Although Henry II and Richard I were both apt to disregard administrative protocols whenever they saw fit (a consideration which in 1215 probably helped to rule out a simple reversion to earlier practices, since these were always at the risk of being overruled on royal orders), forfeitures of lands for debt appear to have been rare before 1199.

(b) The Windsor ordinance

This began to change following the accession of John.  That a much tougher line could henceforth be taken against anyone who owed the king money was spelt out in an ordinance issued at Windsor after Easter 1201.4  This was principally directed against tenants-in-chief, and their ability (described in the Dialogus) to send representatives – described as their stewards - to answer for them at the exchequer and to accept responsibility for the sums they owed the crown.  Much of the ordinance was concerned to ensure that these stewards were themselves men of sufficient substance to be able to pay the sums required of their lords, who had presumably been slowing down, or simply preventing, the payment of their debts by dealing with the exchequer through men who did not have the means needed to meet its demands.  But it was also laid down that if the stewards defaulted, then the money owed could be raised from the estates of their lords, while if the debt had been incurred through a fine made for land – pro fine terrae – then the land itself could be taken into the king’s hand and held until the fine was paid.  Since transactions over land featured prominently, and expensively, among the dealings of the king with the upper echelons of society, this new provision gave the king a potent means of leverage against anyone who owed him money for this reason and subsequently incurred his displeasure, a leverage which could be all the more effectively deployed because procedure would be according to the law of the exchequer, over which the king exercised close control.

John had only recently shown the rigour with which he was prepared to treat crown debtors when on 5 March 1201 he had ordered the sequestration of the estates of his own half-brother, Archbishop Geoffrey of York, `for the debts which [he] owes us and for defaults and for other reasonable causes ...’.5  But although the king’s severity may have been prompted by his having been recently engaged in a series of disputes with the irascible prelate, Geoffrey was probably too important and prominent a figure to be subjected to arbitrary dispossession, and John was careful to record that he had acted against him `by the judgment of our court’.  And in fact, even after the Windsor ordinance had legitimised such hard-line measures, in the early years of John’s reign the king and his agents usually seem to have preferred to raise money owed to the crown from the chattels and sureties of debtors.  The sequestration of chattels could be thorough, however, judging by a return to the exchequer made by the sheriff of Leicestershire and Warwickshire in the first year of John’s reign, reporting that he had paid in nothing from the debts of Gilbert of Seagrave, but had ordered two of his underlings to sell Gilbert’s chattels and pay in the money once they had done so.  Since the sum in question was 400 marks, raising it entirely from Gilbert’s moveable goods must have left his houses and lands in a desolate condition.6

(c) Pressure on pledges

As John’s reign proceeded, however, the treatment of crown debtors, and of their pledges, became harsher.  In July 1208 the king commanded that the Lincolnshire knight Thomas of Moulton, who owed over £500, should be arrested and imprisoned in Rochester Castle, `so that he may not leave until he has paid us everything he owes us, to the last penny ...’, and though Moulton’s treatment was not in fact as harsh as the king’s order dictated, he still forfeited chattels valued at over £60, while his sureties had to pay £104. 10s. on his behalf.7  As the pressure exerted on royal debtors grew, the number of sureties increased, as did the demands that might be made on them.  On 7 May 1207 the sheriffs of Essex, Sussex and Suffolk were ordered to take into the king’s hands all the lands of Geoffrey de Sacheville and Ralph de Marci, along with all the chattels and stock on them.8 Geoffrey and Ralph then made fine by 1000 marks to have the king’s good will, to be quit of a forest offence and to recover their lands, and found pledges for their paying this large sum within four years.  Within twelve months the latter had contributed nearly £475 towards clearing the debts of the principals, and they went on paying until the entire debt was cleared in 1210.  The contribution of the principal debtors, as recorded, was minimal – order was given that their chattels be sequestrated, a process which in Kent raised £9. 18s. from Marci’s goods and £5 from Sacheville’s.9  Otherwise the whole sum was extracted from their pledges, in a case which does much to explain why Clause 9 made provision for such men’s being enabled to recover their outlays from principal debtors.

A list of Marci’s sureties contains thirty-seven names, of Sacheville’s no fewer than fifty-seven, though as several names occur in both the total number of pledges was rather less than ninety-four.  The amount each man was required to guarantee was recorded, suggesting that these were men of widely differing means – some were responsible for up to 100 marks, many for fifty or sixty, but some for less than ten.  A broad range of landowning society thus came under pressure, in line with exchequer policy which clearly aimed to spread the burden of payment, and also, perhaps, of submission to royal demands.  When Roger son of Adam relinquished the shrievalty of Hampshire in 1207, he fined by 1000 marks `for having the king’s good will’.  This sum was guaranteed by literally hundreds of sureties; the abbess of Wherwell underwrote five marks, the prior of Winchester ten, Arnold the vintner of Southwark as much as twenty, but many people were pledges for sums between 6s. 8d. and 40s., or even for 12d. or 2s.10  At the other end of the social scale, when in the same year Geoffrey de Lucy undertook to pay 3000 marks `for having to wife Juliana, the widow of Peter de Stokes, with all her land ...’, his 103 pledges included the earls of Salisbury and Oxford, the bishop of Norwich, and leading royal servants like Robert de Vieuxpont, William de Briouze and Walter de Lacy, guaranteeing sums of between forty and 100 marks, while many of his lesser sureties undertook to pay between ten and twenty marks if Geoffrey defaulted.11

Since Geoffrey de Lucy had specifically made his fine for the land as well as the person of his wife, under the Windsor ordinance all his sureties risked having their estates sequestrated if payment was not made, helping to explain why Clause 9 placed restrictions on the demands that could be made of sureties, and also why some men paid to avoid or reduce them – the earl of Arundel, who had accepted responsibility for 100 marks of Geoffrey’s debt, was recorded as owing a good palfrey (the equivalent of about twenty marks in cash) and a Norwegian goshawk to be quit of being a pledge (de plegiagio) for forty marks,12 thus reducing his liability to have his lands seized in the event of Geoffrey’s defaulting on his debt.  The dangers, and expense, became no less great for baronial stewards.  Following the death in 1211 of Roger de Lacy, lord of Pontefract and constable of Chester, seven men were charged with sums ranging from twenty to 1000 marks, altogether amounting to nearly £1300, for not being obliged to render account for the time when each had been Roger’s steward – presumably these were the men who had answered for Roger at the exchequer, as the Dialogus prescribed, and had undertaken to pay money demanded from their lord, without at the time expecting, or even intending, to do so.  Any confidence they may have felt about exchequer complaisance must have been quickly dispelled, for within a year they had all made significant progress towards paying what they owed, with two clearing their debts entirely and the other five (one of them helped by a pardon for 200 marks) reducing them by at least half.13

(d) Magnates and principals

In the later years of John’s reign, several crown debtors were compelled to use their estates as pledges for payment.14   Some were among the king’s own henchmen, for instance Peter de Maulay, who in 1214 undertook to pay 7000 marks for his marriage to the heiress of Robert of Thornham, together with her lands; Peter spread the burden, and the risk, by finding pledges for 4900 marks, but had to offer all his own lands as surety for the payment of the rest.15 But it was not only magnates who came under this sort of pressure.  Thomas of Langley, owing just 100 marks and a palfrey in the same year for the keepership of Wychwood forest in Oxfordshire, also had to offer all his lands and chattels as pledges for payment.16  Admittedly the burden on Langley was lightened by his being allowed to meet his commitments at the rate of £10 per annum, while in the end Maulay paid nothing at all, being pardoned his commitments in 1221, but at the time when he incurred it his debt must have looked likely to constitute a weighty restriction on this would-be magnate’s freedom of manoeuvre – as, in all probability, it was intended to do.

Such cases illustrate the extent to which dispossession – with its potentially dire implications, in a society effectively based upon land-tenure, for the rank and reputation, as well as wealth, of those affected - was becoming an ever-present threat, and one which might be activated at any time against stewards, sureties, and principal debtors alike.  In June 1206 King John ordered the justiciar to return his lands and chattels to Peter de Scoteneye, `taken into our hand because of our debts ...’, and also commanded a respite of proceedings against Peter `for the greater part of those debts’, because he was now serving the king overseas.  This easing of pressure did not prevent Peter’s joining the rebellious barons ten years later.17  More dramatic, and drastic, were the proceedings against William de Briouze, whose huge debts of well over £3000, accumulated with the connivance and perhaps even the encouragement of the king, were used by John in 1212 to justify his destruction of a servant made dangerous by knowledge and power.  In what was in effect a public statement, the king set out how he had proceeded `according to the custom of our realm and by the law of our exchequer’, beginning by distraining upon his victim’s chattels.  Briouze then surrendered three Welsh castles as pledge for payment, and `moreover he placed all his English and Welsh land in surety to us, to be forfeited if he did not observe that term ...’.  His estates were thus already at the king’s disposal when he was finally, and formally, outlawed `according to the law and custom of England’, and thereby forfeited all his possessions.18  Six earls and seven barons witnessed John’s statement, so giving plausibility to the king’s assertion of the lawfulness of his proceedings, and in the process doubtless reinforcing a growing belief that formal controls were needed upon processes so powerful and potentially destructive.

There was more than one way in which the king could take advantage of debt so as to claim, or threaten to claim, the lands of his subjects.  Nicholas de Stuteville, making the huge proffer of 10,000 marks for the estates of his brother William in 1205, had to leave Knaresborough and Pontefract castles in John’s hands as guarantees for the payment of this enormous sum.  The money was never forthcoming, and the castles with their associated estates remained under royal control thereafter.19  In other cases the threat of foreclosure could be used to obtain services from a debtor.  In 1210 Walter de Turberville, a west country landowner, fined by 1000 marks to have the king’s good will, which he needed to recover after being charged with breaches of forest law and an offence concerning a wardship.  He paid 500 marks within a year, but in 1213 undertook to work off 150 marks of the remainder by serving as a knight in Poitou for a year; if he failed to serve `faithfully’, then all his land would be seized by the king, an agreement he had confirmed by charter.20  At least Walter had retained his estates when this settlement was made.  The northern magnate Robert de Vaux, having long enjoyed the king’s favour, was effectively disgraced in 1210, so comprehensively that a year later he was recorded as owing 2000 marks `for having the king’s mercy’.  When this was recorded he had paid nearly half the debt, but there was no let-up in the pressure on him, until a further settlement was made in December 1213.  By this time Vaux was in prison and all his lands were in the king’s hands – to recover his freedom and his estates he had to give hostages (including his mother, his sister and his son), and - rather like Turberville - to redeem his debt by undertaking to finance the services of troops overseas.21

(e) Controlling the king’s will

Clause 9 did not in fact formally prohibit the seizure of land for debt - by calling for action to be taken first against moveable goods it may be said to have inhibited it, but it did not rule it out.  Perhaps the barons were reluctant to forbid altogether procedures which they could themselves exploit in their dealings with their own debtors, who might well also be their tenants, and for this reason, too, did not call for a straightforward return to the procedures laid down in the Dialogus.  But in John’s reign too much depended on temporary circumstances, or even personal caprice.  Two cases from the months immediately after the sealing of Magna Carta show with particular clarity the resulting inconsistency, and in particular the ways in which the king’s favour could mitigate or promote the harassment of debtors.  On 26 December 1215 John ordered the sheriff of Nottinghamshire to seize the lands of the Lancashire baron Ralph de Gresle `who is our enemy, because of the debts which he owes us ...’ – in this case one reason for stern action was used to reinforce another.22  But three months later he gave order that Oliver de Punchardon’s lands at Faccombe in Hampshire were to be returned to him by William Brewer, who had disseised him of them `for an old debt which his ancestors owed to the king’s ancestors ...’.23  In fact Oliver’s debt, recorded in 1214 as amounting to about £40, appears to have been entirely incurred since 1207,24 raising the possibility that it was the discovery of its misrepresentation which prompted the king’s directive.  But in the prevailing circumstances it is far more likely that John’s command was dictated by military considerations, by Oliver’s having then been in the king’s service at Nottingham, in the garrison of a strategically vital castle,25 and thus a man whose loyalty had to be retained. Although John was prepared to rely on the formal processes of the exchequer when it suited him, as he did in the case of William de Briouze, it may well have been almost as much the unpredictability of his treatment of debtors as the threat his actions posed to their status and finances which made his victims (many of whom were among the rebels of 1215) call for regulations to control the measures taken against those who owed money to the crown.

Citation

Because it was felt necessary to provide a detailed analysis of King John’s policies towards English Jews in order to elucidate Clauses 10 and 11, they were originally discussed together, within a single extended commentary.  They have now been separated, but except at their beginnings and endings, the commentaries on the two clauses remain very largely identical.

(a) Purposes and application

Among the Articles of the Barons, numbers 34 and 35 were seemingly placed at random in a miscellaneous series of demands, occurring between one clause dealing with freedom to leave and enter the country, and another relating to the tenants of escheats.  Having regard to their content, the protection of the heirs and widows of men who died owing money to Jews, Clauses 10 and 11 of Magna Carta were much more rationally situated, in that they now came after a sequence of clauses (2-8) primarily concerned with succession to property, with a particular emphasis on the rights of widows and under-age heirs, and a single clause (9) laying down the procedure for the payment of debts.  Article 34, like Clause 11 of the `Unknown Charter’, which was probably drawn up during negotiations between King John and the barons in the months before the granting of Magna Carta, and also like Clause 10 of Magna Carta afterwards, was particularly concerned to control the accumulation of interest upon debts owed to Jews, something which the king, by virtue of his own over-riding authority where Jews were concerned, seems to have been able to exploit to an unacceptable extent.  In this – something which was not spelt out in the Charter – it was intended to benefit only free men and women.  But within that category it was to be of universal application.  In stating clearly that a debtor’s heir was to be protected `whoever he may hold from’ (de quocumque teneat), Clause 10 provided safeguards for all freeholders, not just for tenants-in-chief, and in this it differed from Clause 11 of the `Unknown’ Charter, which seemingly demanded protection only for the heirs of tenants-in-chief (aliquis hominum meorum).1  That this should have been so reflects the importance both of the point at issue – the accumulation of interest on inherited debts to Jews – and of the role that Jews had come to play in government finance during the twelfth century, and also of the consequences of these developments for landowning society as a whole.

(b) Kings and Jews, 1066-1199

There is no record of Jews living in England before 1066.  Their arrival after the Norman Conquest appears to have been the direct result of royal policy, arising from William I’s financial needs and his experience of dealing with a Jewish community in Rouen.  The close association of Jews with the crown proved lasting.2  Kings needed loans and taxes, Jews needed protection, against antagonisms arising both from their religion and from their financial activities, two currents of hostility which combined as a result of the near monopoly of the business of lending money at interest, a practice forbidden to Christians, which they had come to possess by around 1200.  The teaching of the Paris schools at that time, as expressed in writings like the Summa confessorum of Thomas of Chobham, was strongly disapproving of the association of kings and Jews - Thomas regarded the former as complicit in the usury of the latter, and expressed surprise that the church tolerated it.3  In fact the church had little choice but to do so, and the protection which successive English kings were able to give to Jewish communities was usually effective, so that their number grew during the twelfth century, gradually extending to most parts of the country.

Familiarity did not generate acceptance, however, and English Jews were exposed to intermittent outbursts of fierce violence, especially at times when preparations for crusades exacerbated feelings of enmity towards non-Christians.  Such feelings can only have been heightened, moreover, by repercussions from the crown’s increasingly intensive exploitation of Jewish resources.  Subservience and exploitation constituted the price which Jews paid for royal protection.  Their status in England around 1200, as recorded in the often ambiguous language of legal texts and government records, is hard to define and has often proved contentious.4  Passages in a mid-twelfth-century revision of the Leges Edwardi Confessoris, declaring that `the Jews themselves and all their possessions are the king’s ... if someone detains them or their money, the king shall demand them as his own property [tanquam suum proprium] ...’,5 in a charter for a favoured Jew issued in 1190, in which Richard I licensed Isaac, the son of Rabbi Josce, and his family to go where they wanted with all their chattels, `as our own property’ (sicut nostre res proprie),6 and in the legal treatise Bracton, of around 1230, which echoed the Leges Edwardi in stating that `The Jew can have nothing that is his own, for whatever he acquires he acquires not for himself, but for the king ...’,7 have been interpreted as treating Jews as akin to villeins.  The vulnerability of English Jews to royal demands, it is argued, resembled that of villeins with regard to their lords - `The lord could take anything his villein held, and the villein had no redress in the royal courts’.8  Efforts have been made to undermine the analogy, and though not all of them seem equally persuasive, it is certainly true that Jews had privileges, and indeed a special position in English society resulting from the inter-relationship of their religious identity and the royal protection which they needed as a result of it, unlike anything enjoyed by villeins.  What Jews and villeins did have in common was a comparative rightlessness with regard to king and lord, which even though it was not always, or even often, exploited to the full, was nonetheless always there, and capable of being manipulated to their disadvantage.  The king could impose an arbitrary levy – a tallage – on Jews, whenever and at whatever rate he pleased, could manipulate the debts owed to them, and was entitled to take a third of their possessions when they died.  Indeed, he was in a position to put well-nigh unlimited pressure on Jews, and the latter, making their living primarily by money-lending, had little option but to exert equal pressure on Christian debtors in order to raise the sums which the king demanded.

In fact, the threat to Christian resources posed by a combination of Jewish creditors and royal exactions was restricted at first.  The chronicler William of Newburgh, commenting on what he saw as Henry II’s unwarranted favour towards his Jewish subjects, associated this with the large advances he was able to extract from them,9 which until late in his reign were usually made in the form of loans.  In 1186 Henry signalled a change in policy by imposing a massive tallage, allegedly of £60,000, on Jewish communities, and swiftly followed this with two more, but not all the money was collected.10  When Aaron of Lincoln, the greatest Jewish financier of his generation, died, also in 1186, his entire fortune, in cash, valuables and bonds, was on unspecified grounds declared forfeit to the crown.  But despite a special branch of the exchequer being set up to handle Aaron’s debts, sums amounting to £15,000 were still owing when they were transferred to the regular exchequer five years later, and some £12,000 in 1201; the fact that no interest was charged on Aaron’s debts after they came into the king’s hands must have removed what might otherwise have constituted a strong incentive to debtors to clear their obligations.11  Henry II granted charters of rights to English Jews, probably early in his reign, and in 1190 these were implicitly confirmed by Richard I.12  The latter also made considerable demands on his Jewish subjects, imposing four tallages of a total of 10,000 marks during his reign,13 but his exactions were probably no greater than those which he made on everyone else.  Following the massacres of Jews at York and elsewhere in 1190, moreover, determined efforts were made to punish those responsible, and in 1194 the articles of that year’s eyre included one concerned with `the killers of Jews’, though it also attempted to secure what was due to the king from the debts and chattels of the slain.14

(c) King John: responding to opportunities, 1199-1207

The disturbances of 1190 seem to have affected only the Jewish communities of London, York, Lincolnshire and East Anglia, and for these they constituted a heavy blow.  For English Jewry as a whole, a no less important development was the appointment, in around 1194, of officials known at first as `keepers’, and then as `justices of the Jews’, who soon took charge of a special `exchequer of the Jews’, which administered many of the crown’s financial dealings with Jews and exercised jurisdiction over most disputes between Jews and Christians.15  Associated with this innovation was an ordinance commanding the listing of all the property of Jews, whether in debts, or gages, or lands and rents, and the establishment of six or seven offices at which Jewish loans were to be recorded on chirographs, of which one part was to be handed over to the lender, having first been sealed by the borrower, while the other part was stored in a specially made chest.  As a control upon their payment, all debts were also to be enrolled, and changes in their status noted.16  These measures may have originated in Hubert Walter’s concern for efficiency (since everything a Jew owned was potentially the king’s, it was essential that full records be kept of Jewish transactions and debts), but they also created what was potentially a formidable apparatus of oppression and exploitation.

Such terms are readily associated with King John, but in the early years of his reign his dealings with Jews were in most respects similar to those of his brother and father.  On 31 July 1199 he confirmed Jacob the Jew of London in his position of `presbyter of all the Jews of England’,17 and on 10 April 1201 (at a price of 4000 marks) he issued two charters in which he confirmed grants which Richard I had made to a single English Jew and extended them to all the Jews of England and Normandy.18  The first mostly upheld rights of residence, tenure and inheritance which Jews had enjoyed since Henry II’s time, while the second gave the Jewish community jurisdiction over disputes arising between its members, as long as these did not involve pleas of the crown. Two years later John responded forcefully to reports of injuries being inflicted on Jews in London, at a time when he claimed that they were living in peace elsewhere in the kingdom.  He ordered the mayor and citizens to protect Jews against attack, and warned them he would hold them responsible for any Jewish blood that was shed, `for we know well’, he concluded, `that such things occur on account of the half-wits (fatuos) of the town, and not of the prudent, and the wise ought to constrain the stupidity of fools.’

In taking so firm a line, John made it clear that he was more concerned for the maintenance of his peace than for the well-being of Jews - `nor indeed were we moved in that for the sake of the Jews but for that of our peace, because if we had given our peace to a dog, it ought to be inviolably observed ...’.19   In November 1204 he granted his peace, along with licence to come safely to England and remain there, to a Jew named Hanuchim, as reward for the latter’s good service under Roger de Lacy in the recently lost fortress of Château Gaillard,20 but at the beginning of that year, as French pressure on the duchy of Normandy intensified, John showed what treatment English Jews might be exposed to as a result of his financial needs.  On 30 January the sheriffs of several East Anglian counties were ordered to make `urgent distraints’ on Jews for their debts to the crown,21 and further exactions soon followed, intensified, perhaps, by the loss of Normandy, since the resources of Jews there, and especially of their principal community in Rouen, were no longer available for exploitation.  In April 1205 `our Jewish prisoners’ were among those excepted from the general pardon which, following the death of Queen Eleanor, and for the good of her soul, was granted to those held in the king’s gaols – their arrest is probably to be associated with some unrecorded levy.22

Here John can be seen turning the screw on the Jews themselves, but he was already well aware that indebtedness to Jews could also be exploited to his own advantage.  In 1204 – and possibly earlier, gaps in the records prevent certainty – he had begun to grant letters to Jews ordering that debts to them should be paid, and that the king should receive one bezant for every pound collected.23  The sums in question were almost always described as including interest by chirograph (cum lucro per cirographum), suggesting that the Jews concerned were taking steps to secure payments of debts recorded under the ordinance of 1194, with the interest being included with the principal when the relevant bonds were drawn up.24  No doubt the letters were directed to sheriffs, and led to their powers of coercion being put at creditors’ disposal – two Jews who in 1205 obtained letters of this kind against two men and a woman who owed them money in Dorset and Somerset subsequently accounted for the bezants they owed, specifically `for distraining’ upon their debtors.25  Since a bezant was valued at approximately two shillings, the king profited to the extent of receiving a ten per cent levy on every Jewish debt which was collected in this way, and he probably received a modest fee for issuing the initial letters as well.  This was a device capable of infinite extension – anybody who owed money to a Jew could be harassed into paying up through such means, regardless of his or her eminence.  Also in 1205, a Gloucester Jew named Bonevie accounted at the exchequer for seven bezants (valued at 14s.), payment `for having letters for ten marks [£6. 13s. 4d.] upon the earl of Hereford.’26  Perhaps the king or his agents regarded this as only fair-dealing; whether it was prudent to enable a Jewish creditor to pursue one of the great men of the realm in order to enrich the king by 14s. does not seem to have been a question they asked themselves, at any rate not for some time.  Such letters went on being issued at least until 1208, when a further lacuna concealed their use – they had ceased to be recorded by the time the sequence of surviving fine and oblate rolls resumed in 1213.

The use of letters ordering distraints upon debtors to Jews illustrates how the pressure which King John exerted upon the Jews themselves could have an impact extending far outside the Jewish community.  Their leading role as money-lenders, in an inadequately monetised society, meant that the number of men and women, of every social rank, who became indebted to Jews was always considerable, while the risks which credit transactions entailed were such as to keep interest rates high.  These were not in fact always recorded, it seems to have been common for interest to be included with the principal when the initial terms of payment were laid down, though separate payments of interest would become due if the terms were not met.  Where interest was due from the outset, the usual rate seems to have been twopence per pound per week – that is, forty-three and a third per cent per annum; threepence was not unknown, however, and in one exceptional case sixpence.27  Although evidence is scanty, the accumulation of interest on a loan could plainly be substantial.  In 1215 a debt of ten marks was found to have gathered a further seven marks in interest,28 while in 1204 one Richard de Scrupes was recorded as owing at least thirty marks in interest to Jews of Gloucester from whom he had originally borrowed twenty-five and a half marks (unfortunately in neither case is there anything to show how long it took for the interest to accrue thus).29  As already noted, when a king demanded money from Jews, it was inevitable that the latter should in turn apply pressure to their debtors for the payment of money owed to them, interest as well as capital, so that the king’s demands could be met.  The process of debt collection was itself potentially stringent and methodically carried out; when land pledged as security was seized by a creditor, everything on it was valued and then passed into the creditor’s hands, to constitute part of the repayment.

Throughout his reign John used the king’s controlling interest in Jews as an instrument of patronage.  He might grant a respite on the payment of, or pardon the interest due from, Jewish debts, perhaps in consideration of the overseas service which had led to those debts being contracted, or even remit a debt entirely – on 8 August 1202 the stroke of a pen cleared the earl of Arundel of all his debts to Jews up to the beginning of the month.30  He might accept payment for rescheduling a Jewish debt.  In 1205 Henry Bec undertook to pay the king either a horse or twenty marks, whichever John preferred, in return for an order that Henry’s debt to Ivo the Jew of Lincoln be paid off at the rate of £50 per annum.31  He might grant Jewish property to a friend or ally.  Several of the keepers, or justices, of the Jews, benefited in this way, for instance Simon of Pattishall, who was given two messuages in Northampton in 1200,32 and Thomas de Neville, who in around 1212  disposed of `houses which belonged to Aaron the Jew of Lincoln which I have by gift of the Lord King John ...’.33  In 1214 John gave his henchman William Brewer three Jewish houses, in London, Northampton and Oxford, in a single grant.34  The properties in question were already in the hands of the king when he disposed of them, but John’s opportunities for making such gifts could be augmented if land pledged to a Jew for a debt escheated to the king when the Jew died – in 1201 Maurice of Askern, a Yorkshire landowner, gave ten marks and a palfrey for a searching inquiry into debts owed to Josce of York by his father, who had pledged land in Askern to him, `and if that land came into the king’s hand for any other reason than as an escheat by Josce’s death.’35

(d) Tightening pressure: the measures of 1207

During the first half of John’s reign his exploitation of Jewish resources was mostly opportunistic and occasional, while the collection of Jewish debts which had become the property of the crown remained the responsibility of the exchequer of the Jews, which seems to have approached its task with a notable lack of urgency.  Prior Geoffrey of Canterbury, detailing in 1198 the wrongs suffered by his monks in a bitter dispute with Archbishop Walter, alleged that `Jews are compelled against their will (etiam inviti) to extort violently from us what we owe them ...’36 – the impression conveyed is of faceless bureaucrats exploiting their control of Jewish creditors to exert pressure from afar.  From 1207 the advantages of an oblique approach to debt collection were increasingly discarded, and King John’s own direct responsibility for fiscal pressure became all too clear.  That year saw both further demands on the English Jewish community, and determined efforts to collect Jewish debts which had passed into the king’s hands.  One tallage, of 4000 marks, was of less consequence than another, of a tenth of the value of each Jew’s bonds, this being backed by a record of those bonds which was to be deposited in the exchequer – from now on John had immediate access, at the centre of government, to up-to-date information about the resources of English Jews.37

The possible consequences for John’s subjects, Jews and Christians alike, can be illustrated from the case of Henry Lovel, who in 1208 proffered eighty marks and a palfrey to be cleared of the debt which his father, another Henry, who died in 1194, and his brother Ralph, who had died in the previous year, owed to Vives, a son of Aaron of Lincoln.38  For the purposes of the tenth Vives had valued the debt at 200 marks (£133. 6s. 8d.), and as part of the deal Lovel agreed to pay £78. 1s. 4½d. to the king, thereby settling a debt which Vives owed the crown, while he negotiated a settlement with Vives over the rest of the money (£55. 5s. 3½d.) – it may be doubted if Vives received so much, however, since it was stipulated that when he accounted with Lovel the latter was to be allowed any money already paid towards the settlement of his family’s debt, and three years earlier Ralph Lovel complained that Vives had been holding the Lovel barony of Castle Cary but had failed to acknowledge his receipts from it.  The net result was that John gained by accepting Henry Lovel’s fine, and also by being paid money owed him by Vives.  Lovel became clear of an inherited debt to Vives, but at the price of becoming more heavily indebted to the king than he had been before, altogether owing £331. 3s. 7d. and seven palfreys, which he was expected to pay off at the rate of 100 marks per annum.  Vives was cleared of a debt he had owed the king, but probably lost on the Lovel family debt – perhaps John or his advisers reckoned that he had understated the amount owed, and punished him by accepting his own estimate, so that he received, or was allowed, less than the full value of the debt.

At the same time the collection of the debts of Aaron of Lincoln was reactivated.  Although some of them were by now so old as to be regarded as well-nigh hopeless,  Aaron’s son Elyas, most likely yielding to force majeure,  gave 200 marks for having £400 worth of his father’s `worse bonds’, ones which had not been cleared `and which are worth less to the lord king’, and then a further three gold marks for a better deal, `for having such bonds as may be productive and from which profit may accrue to him’.39  Recorded payments show that while some of the bonds which Elyas chose were indeed likely to yield a safe return – Roger de Ginges, for instance, charged with £7 in 1208, had owed £26. 11s. in 1197, and had been steadily paying off his debt in the intervening years – others had done little to clear their debts since these were first recorded.  But it was essential for Elyas, if he was to profit from his bargain with the crown, that other men, for instance Robert de Gant, who had owed Aaron £26 in 1191, but had paid nothing at all since then, and Gilbert de Coleville, whose original debt of £70. 6s. 8d. (recorded in no less than nine bonds) had been reduced by just £5. 6s. 8d. in twenty-one years, should now pay up.40  Such men must have found the pressure they now came under to settle these aging debts, after years of tacit acquiescence in their non-payment, to be highly unwelcome if not actually offensive.

Jewish creditors and their debtors alike looked to the king for support and protection, which John duly supplied, at a price, at least once to both parties to the same contract.  In 1207 Isaac the son of Cresselinus gave £5 to be put in possession of the estate at Rushall, Wiltshire, of Fulk de Alno, who owed Isaac money, only for Fulk to give four palfreys to have the order revoked, by reference to a deal he had previously made with the king for paying his debt.41  When in 1208 Samuel son of Dieudonné made an agreement with the king to have royal support in raising money owed him by Richard Basset of Great Weldon, the fact that John’s price was a third of the entire debt gave him an interest in its collection almost as great as Samuel’s, and identified him closely with the methods used to raise the money – unsurprisingly, Basset was among the baronial rebels at the end of the reign.42  Another such rebel was Henry d’Oilli of Hook Norton, Oxfordshire, who accounted for £1015. 7s. 11d. for a debt to Simon the Jew of Oxford which had been taken into the king’s hand, probably in the previous year.  After making an initial payment of fifty marks, Henry agreed to pay 100 marks per annum until the debt was cleared, on condition that if he fell behind in his payments the bond recording the debt was to be returned to Simon, and whatever Henry had paid the king was to be regarded as lost, while Simon would presumably start exacting what was owed him all over again.43  Henry d’Oilli’s bond was entrusted to the chancellor, Walter de Gray, who as another Oxfordshire man would have been well placed to know the details of Henry’s circumstances.  Gray was just one of John’s agents to be active at this time on their master’s behalf, targeting Jews – in 1207 year Simon son of Jacob, a Jew of Northampton, gave 100 marks to have all his father’s lands, chattels and debts, reserving to the king `his debts and tallages and his third which Jacob owed the lord king, and his gold and silver found after his death’ (perhaps Simon was suspected of having tried to conceal some of his late father’s valuables)44 – and Christians alike, especially those who had owed money to Aaron of Lincoln.  Late in 1208 order was given that all the lands of those in arrears with such debts should be taken into the king’s hand.45

(e) Going to extremes, 1210-1215

All this was bad enough, both for the Jews and for those who owed them money, but the pressure exerted upon both became heavier still in 1210.  In the spring of that year order was given for the arrest of Jews throughout England and their imprisonment at Bristol,46 where, according to Wendover, they were harassed and tormented into putting their wealth at the king’s disposal; one unhappy man, who refused to pay the 10,000 marks demanded of him, had one of his teeth knocked out each day for a week, finally saving the rest when on the eighth day he agreed to pay up.47  According to Gervase of Canterbury (one of a number of chroniclers to record the financial assault on English Jews, which clearly made a considerable impression), others were hanged or blinded, presumably for resisting the king’s demands.48  This brutality was accompanied by the seizure of all records of debts owed to Jews, and was followed, late in the year, by an unprecedentedly heavy tallage, said during pleadings in the exchequer of Jews in 1218 to have amounted to £40,000.49  The cruelty of the initial attack on Jews may have been randomly inflicted, but the tallage was methodically raised.  Presumably in order to benefit from their inside knowledge, Jews were themselves employed as agents of collection (something which can only have further demoralised the Jewish community),50 and doubtful cases were carefully investigated.  Uncertain, following the arrest of Jews, as to which of two men named Walter of Thorpe owed £14 to Isaac of Norwich, the king’s justices sent messengers, seemingly from Bristol, to Isaac, who had been imprisoned in the Tower of London, to discover the identity of the debtor `from his own mouth’.51  Unable either to hide from the king’s collectors, or to meet the king’s demands, many poor Jews fled overseas.52

Debts to Jews which were taken over by the king were no less assiduously pursued.  Although the wording of the records is often perfunctory and obscure, it would appear that lands pledged to Jews for the payment of debts, and the estates of debtors to Jews whose obligations had come under the king’s control, were alike liable to seizure.  In 1211 three west-country men undertook to pay 500 marks on behalf of John de Montagu, lord of the Somerset barony of Chiselborough, and obtained possession of his land quia in rotulo Judeorum,53  and in the same year William of Windsor had to find £100 to recover his lands, taken into the king’s hand de debitis Judeorum, and then pay 100 marks per annum to clear the debts themselves.54  Some men, indeed, had to sell their lands in order to meet royal demands arising from Jewish debts.  Gilbert FitzReinfrey, the sheriff of Yorkshire, paid £100 to Richard of Middleton for all his land at Middleton and Kneeton `in clearance of the debt he owed the king for debts to Jews’, and then gave 6s. 8d. to have the transaction entered on the pipe roll as an authoritative record (Gilbert was later recorded as paying Richard’s debt into the exchequer).55  In the aftermath of the 1210 tallage a great many debts to Jews had fallen into the king’s hands, and these, too, were methodically pursued.  A surviving roll from around 1212, although damaged, records the regularised payments made by Jews, but also, and in far greater numbers, by Christians, from Norfolk and Suffolk, Bedfordshire and Buckinghamshire, Northamptonshire, Gloucestershire, Berkshire, Essex and Hertfordshire, Hampshire, Cambridgeshire and Huntingdonshire, Yorkshire, Lincolnshire, Wiltshire, Dorset and Somerset, Sussex, London and Middlesex, Surrey, Devon, Oxfordshire, Kent, Warwickshire and Leicestershire, and the city of York.56  Only the far north, the far south west, and the Welsh marches are unrepresented.  A few of the sums involved were relatively substantial, between £15 and £45, but many were small, recorded only in shillings.  Among the debtors from East Anglia, for instance, were Stephen Blundus, owing 4s. for his mother Agnes, Henry the son of Robert of Bungay, owing 6s. 8d., and Basilea de Friville, who owed 10s.  None of the debts entered on this roll can be identified among those owing to Aaron of Lincoln, rather they all appear to have been recently incurred, but whatever their size they were all now being collected.  The process is unlikely to have made King John any friends, and indeed, in the insignificance of the debtors, and the smallness of the sums they owed, it shows how far down society the impact of Jewish money-lending, and also of the king’s pursuit of the resulting debts, had by now extended.

The king seems to have sensed that his exploitation of Jewish debt was arousing resentment, for on 18 August 1212 he instructed all the sheriffs of England to cause `all debtors of Jewish debts’, except earls and barons, to come before him, so that their debts could be lightened, possibly by confining them to the principal owed.57  But the relief seems to have been short-lived, for in the same year Richard Marsh, one of John’s leading advisers, was recorded as `shamelessly’ (improbissime) collecting Jewish debts, with interest, from everyone,58 and in February 1213 John seems to have been planning further demands on Jews and their debtors, for he appointed commissioners who were not only to investigate official misconduct in Lincolnshire and Yorkshire but were also to inquire into `who have held the gages [vadia] of Jews and from what time and by what have they held them and how much they are worth and the names of each of the pledges.  And do you also let us know the houses and demesnes of Jews and which demesnes they have held at fee and which yearly and of whom they have held them and how much they have rendered for them and how much they are worth more than they have rendered ...’.59  In July that year efforts were being made to collect arrears from the tallage of 1210.60  There could be some easing of pressure in favoured cases, for instance Robert de Ros, cleared of Jewish debts worth eighty marks in November 1213,61 or Simon of Kyme, who in around 1212 negotiated a settlement of an accumulated debt of nearly £1275, of which £419. 11s. 6d. was interest, and who in 1214 was also granted respite of payment of a Jewish debt of 700 marks inherited from his father.62  But others enjoyed no such let-up.  There is no evidence, for instance, that any remission was granted to Eustace de Vescy of his alleged debt of £50 de Judeis.63

(f) Magna Carta and the Jews

Vescy, Ros and Kyme all rebelled in 1215, along with many other landowners who had suffered from John’s exploitation of Jews and the debts owed to them.  As for the Jews themselves, they suffered both from that exploitation and from the enforced closeness of their association with the king’s money-raising methods, which can only have intensified the antagonism already felt towards them on religious grounds.  The theologian William de Montibus, who was for some twenty years chancellor of Lincoln Cathedral, pinpointed this aspect of the relationship between king and Jews when he characterised the latter as `the sponges of the king.  They are blood-suckers of Christian purses, by whose robbery kings despoil and deprive poor men of their goods.’64  When the barons captured London on 17 May 1215, they immediately demolished Jewish houses and used the materials to strengthen the city’s defences.65  (According to the sixteenth-century antiquary John Stow, when the Ludgate gate was rebuilt in 1586, a stone engraved in Hebrew letters with the name of Rabbi Moses, the son of Rabbi Isaac, was found embedded in the ancient masonry, a discovery associated by Stow with the baronial action.)66  But although the king’s enemies must have felt that they had more than sufficient reason for resenting the ways in which John had used his control of English Jews and their resources at his subjects’ expense, they placed remarkably few constraints upon them in Magna Carta – Clause 10 dealt with only one weapon in the formidable armoury of extortion and oppression which control of Jewish finance had placed at King John’s disposal.67  Provision was made for the dismissal of the king’s foreign mercenaries, but no similar order was given for the expulsion of Jews, although the idea seems to have been in the air, and had indeed been briefly implemented in the Île-de-France in 1182 (the Jews expelled in that year were allowed to return in 1198).68

One reason for the near total absence of references to Jews in Magna Carta may have been an understanding that their financial skills, particularly where credit transactions were concerned, and their ability to provide ready money at a time when supplies of hard cash were limited, were socially and economically indispensable.  Landowners of all ranks needed access to their expertise and resources, and were certainly not above exploiting the indebtedness to Jews of their Christian neighbours in much the same way that the king did.  Among the men who owed Jewish debts to the king in the years immediately before  Magna Carta were Roger Bigot, earl of Norfolk (one of the twenty-five barons charged with overseeing the implementation of the Charter), recorded as paying £20 on behalf of the heirs of William de Pirho and debts totalling £9 10s. for Robert de Auvilers, William d’Aubigny, earl of Arundel, who paid £10 of the debts of the Lincolnshire baron Robert of Tattershall, and the justice Simon of Patteshall, charged with £15 `for the fine of Robert de Broy’;69 these men, and others like them, had presumably been buying up Jewish debts, no doubt at a discount, and then either collecting them or foreclosing on them, in either case to their own advantage.  Religious houses notoriously expanded their estates in the same way.70  It was unlikely that lay and ecclesiastical lords would willingly forego the employment of such techniques, even though they might also be used to their own detriment, and they might well have been reluctant to deny the king practices which they exploited themselves.  It is also possible that there was a growing feeling that action against Jewish usury was something best left to the church, which had more than once forbidden Jews to take interest on loans made to crusaders,71 while a ban on the taking of excessive interest from Christians by Jews appeared among a number of restrictions placed upon the latter by the decrees of the fourth Lateran Council later in 1215.72

But the main reason for the lack of substantive action was most likely a feeling – one surely felt, and vigorously expressed, by King John - that the treatment, and exploitation, of Jews was too integrally a part of the royal prerogative to be easily separated from it. Writing to the sheriff of Herefordshire in June 1218 (and also to a number of other sheriffs and officials), Henry III’s minority government ordered him to ensure that `our Jews’ were able to live in Hereford, `as they used to do in the time of King J. our father’, and that he was to permit nobody to molest them, not least the bishop of Hereford, `because our Jews are no concern of his.’73  In every respect Jews were to be treated as they had been in the previous reign, when they had been no less `our Jews’, and when the king’s charter of 1201 had licensed Jews to go wherever they wished `with all their chattels as [if they were] our own’.  It was probably because they shared John’s belief that Jews were in some sense a royal monopoly, or at any rate were forced by the king’s recalcitrance to accept it, that the barons confined themselves to protecting only the most vulnerable of the potential victims of Jewish money-lending, with the result that action against other debtors continued to be taken as before.  When he was at Gloucester in August 1216 John was no doubt happy to receive a payment of 60s. to have a Jewish widow provided with a writ `for making distraint for the debt of £9 with interest which Henry the burgess owes her, as she says.’74  Even Clause 10 may quickly have come to be regarded as amounting to an unwarranted infringement of royal rights, for no equivalent clause appeared in any of the reissues of Magna Carta.

(g) Clause 10

Clause 10 ordered that following the death of anyone who had borrowed money from Jews, his debt was not to incur interest for as long as the heir was under age, while if the debt came into the hands of the king, the latter would only require payment of the principal, without any interest at all (or at any rate additional interest – the term catallum may have meant the combination of principal and fixed interest specified in some bonds).  As already noticed, the king often remitted payments of interest on debts to Jews, and the pope did the same for crusaders.  On 11 November 1206 John granted to Robert of Tattershall the wardship, as his right, of the lands and heirs of John of Ingham, directing that he was to have it until the heirs came of age, and that none of them should be troubled for John’s debt to Jews until the heirs came of age.75  In this case nothing was said about interest, and it is possible that it was left to accumulate during the years which followed, but the grant does at least show one of the ways in which the king could protect under-age heirs against the exactions contingent upon inherited Jewish debt.  The specific prohibition of interest was intended to prevent heirs from coming into their inheritances to find them massively encumbered with such debt.  Warin de Mountchesney of Swanscombe, Kent, a man of near-baronial rank, who after coming of age in 1213 proffered 2000 marks to have his inheritance, `and that he may be quit of all debts to Jews’ (the sum presumably also covered the interest attendant on those debts), was prepared to incur one obligation in order to avoid another.76  But not every debtor to Jews enjoyed Warin’s resources, and though no instances have been found precisely illustrating the abuse remedied by Clause 10, it can still be shown that the burdens of inherited Jewish debt could be heavy, even when the sums involved were not especially large, not least if they were methodically pursued by the king’s officers.

A number of heirs were recorded as debtors on the roll of Jewish obligations drawn up around 1212.  In Lincolnshire, for instance, the heirs of Ralph de Aubeny and Walter de Preston were debited with 13s. 4d., those of Ralph of Washingborough with 5s., and those of Ralph de Fenna with 11s. 8d.77  By this time some of these debts may have been distinctly elderly – Ralph de Fenna was presumably identical with the man of that name for whose daughter William de Budeville had proffered £20 in 1191, implying that he was dead by then.78  But if William and his wife were the heirs referred to twenty years later, the mere passage of time was clearly not going to be allowed to expunge Ralph’s debt   A more recent encumbrance was that upon the Sussex landowner Hugh of Lunsford, recorded on the 1211 pipe roll as having owed £70 to Samson the Jew of Canterbury, a debt which had come into the king’s hands some time before the general arrest of Jews and their bonds made early in the previous year.79  Of this sum Hugh paid £9. 6s. 8d. in 1211, £4 in 1212, £1. 5s. 2½d. in 1213 and 13s. in 1214.  The steady fall in the sums accounted for may reflect failing health, for by Michaelmas 1214 Hugh appears to have been dead.  But the remaining debt went on being exacted from his heirs (later named as his daughter Matilda), seemingly at the rate of 25s. 2½d. per quarter,80 or just over £5 per annum, a markedly higher amount than any Hugh had himself paid in any year except the first (in the 1220s Matilda was expected to pay just 20s. each year).

There is no way of telling how old Matilda of Lunsford was when she became responsible for her father’s debt, but such terms would have been onerous at any age, and no doubt appeared all the more so for the relentlessness with which they might be enforced.  Among the Norfolk debtors to Aaron of York was William le Vealtre of Burnham Overey, recorded in 1195 as owing a total of £191. 19s. 9d., and as paying 29s. 8d.81  Similarly modest payments were made in the years immediately following, and in 1201 his debt, which like other debts to Aaron was not inflated by accumulations of interest, still amounted to £186. 0s. 1d.  At this point, therefore, pressure began to be applied to William’s five pledges, who were required to pay five marks per annum towards the clearance of the debt, and often did so.  Although assisted by a clerical error in the compilation of the 1205 pipe roll, which resulted in a payment of 71s. 8d. being mistaken for one of £70. 1s. 8d. and the debt being reduced to £116. 8s. 4d., William and his pledges still owed £95. 13s. 4d. in 1212, at which point William died.  But the residue went on being demanded from his heirs (he had two daughters), who were still paying five marks per annum in 1242, when £12. 13s. 4d. had yet to be paid.  At least eight people – the debtor, his heirs and his pledges - had been made to pay just under £180 (in reality only about £110) in dribs and drabs over nearly fifty years.  For people like William and his daughters, a burden of Jewish debt, and the need to satisfy the king who had taken possession of it, must have been a constant cause of anxiety, one transmitted across generations, explaining why in 1215 the barons should have demanded that such exactions be brought under control.

Citation

Because it was felt necessary to provide a detailed analysis of King John’s policies towards English Jews in order to elucidate Clauses 10 and 11, they were originally discussed together, within a single extended commentary.  They have now been separated, but except at their beginnings and endings, the commentaries on the two clauses remain very largely identical.

(a) Purposes and application

Among the Articles of the Barons, numbers 34 and 35 were seemingly placed at random in a miscellaneous series of demands, occurring between one clause dealing with freedom to leave and enter the country, and another relating to the tenants of escheats.  Having regard to their content, the protection of the heirs and widows of men who died owing money to Jews, Clauses 10 and 11 of Magna Carta were much more rationally situated, after a sequence of clauses (2-8) primarily concerned with succession to property, with a particular emphasis on the rights of widows and under-age heirs, and a single clause (9) laying down the procedure for the payment of debts.  As part of this relocation, moreover, Article 35 was split into two, with its closing section, about the condition in which an heir coming of age could expect to receive an estate from its guardian, being detached to become the basis of the Charter’s Clause 5.

In fact the removal of the second part of Article 35 may have distorted the original tenor of the two articles, which as they appear in Magna Carta may seem more closely linked, through their common emphasis on the effects of Jewish money-lending, than was originally intended.  Article 34, like Clause 10 of Magna Carta afterwards, was indeed particularly concerned to control the accumulation of interest upon debts owed to Jews, something which the king, by virtue of his own over-riding authority where Jews were concerned, seems to have been able to exploit to an unacceptable extent.  But Article 35, which made no mention of interest, was in its original form primarily concerned with securing the rights and maintenance of widows and children, which might indeed be threatened by the effects of indebtedness to Jews, but were apparently no less imperilled by the demands of non-Jewish lenders (to whom the provisions of both Article 35 and Clause 11 of the Charter were specifically applied), and also - where an heir was concerned - by the greed or negligence of guardians.  This last possibility had been the subject of another clause (no. 3) in the `Unknown Charter’.  Its forming part of Article 35 suggests that it could be seen in a context to which indebtedness, whether to Jews or anyone else, had a particular relevance.  Its being finally redeployed to become the subject of a clause in Magna Carta in its own right made good sense on its own terms, but may have resulted in the detrimental effects of Jewish credit transactions being over-accentuated in the Charter, the more so when it was the subject of two consecutive clauses.

Although this was not spelt out in the Charter, Clause 11 was intended to benefit only free men and women.  Dower, for Glanvill, was `that which a free man gives to his wife at the church door at the time of his marriage’,1 while villeins could not pledge land to Jews.2  But within that category it was to be of universal application.  In this it reflected the importance both of the point at issue – the accumulation of interest on inherited debts to Jews – and also of the role that Jews had come to play in government finance during the twelfth century, and also of the consequences of these developments for landowning society as a whole.

(b) Kings and Jews, 1066-1199

There is no record of Jews living in England before 1066.  Their arrival after the Norman Conquest appears to have been the direct result of royal policy, arising from William I’s financial needs and his experience of dealing with a Jewish community in Rouen.  The close association of Jews with the crown proved lasting.3  Kings needed loans and taxes, Jews needed protection, against antagonisms arising both from their religion and from their financial activities, two currents of hostility which combined as a result of the near monopoly of the business of lending money at interest, a practice forbidden to Christians, which they had come to possess by around 1200.  The teaching of the Paris schools at that time, as expressed in writings like the Summa confessorum of Thomas of Chobham, was strongly disapproving of the association of kings and Jews - Thomas regarded the former as complicit in the usury of the latter, and expressed surprise that the church tolerated it.4  In fact the church had little choice but to do so, and the protection which successive English kings were able to give to Jewish communities was usually effective, so that their number grew during the twelfth century, gradually extending to most parts of the country.

Familiarity did not generate acceptance, however, and English Jews were exposed to intermittent outbursts of fierce violence, especially at times when preparations for crusades exacerbated feelings of enmity towards non-Christians.  Such feelings can only have been heightened, moreover, by repercussions from the crown’s increasingly intensive exploitation of Jewish resources.  Subservience and exploitation constituted the price which Jews paid for royal protection.  Their status in England around 1200, as recorded in the often ambiguous language of legal texts and government records, is hard to define and has often proved contentious.5  Passages in a mid-twelfth-century revision of the Leges Edwardi Confessoris, declaring that `the Jews themselves and all their possessions are the king’s ... if someone detains them or their money, the king shall demand them as his own property [tanquam suum proprium] ...’,6 in a charter for a favoured Jew issued in 1190, in which Richard I licensed Isaac, the son of Rabbi Josce, and his family to go where they wanted with all their chattels, `as our own property’ (sicut nostre res proprie),7 and in the legal treatise Bracton, of around 1230, which echoed the Leges Edwardi in stating that `The Jew can have nothing that is his own, for whatever he acquires he acquires not for himself, but for the king ...’,8 have been interpreted as treating Jews as akin to villeins.  The vulnerability of English Jews to royal demands, it is argued, resembled that of villeins with regard to their lords - `The lord could take anything his villein held, and the villein had no redress in the royal courts’.9  Efforts have been made to undermine the analogy, and though not all of them seem equally persuasive, it is certainly true that Jews had privileges, and indeed a special position in English society resulting from the inter-relationship of their religious identity and the royal protection which they needed as a result of it, unlike anything enjoyed by villeins.  What Jews and villeins did have in common was a comparative rightlessness with regard to king and lord, which even though it was not always, or even often, exploited to the full, was nonetheless always there, and capable of being manipulated to their disadvantage.  The king could impose an arbitrary levy – a tallage – on Jews, whenever and at whatever rate he pleased, could manipulate the debts owed to them, and was entitled to take a third of their possessions when they died.  Indeed, he was in a position to put well-nigh unlimited pressure on Jews, and the latter, making their living primarily by money-lending, had little option but to exert equal pressure on Christian debtors in order to raise the sums which the king demanded.

In fact, the threat to Christian resources posed by a combination of Jewish creditors and royal exactions was restricted at first.  The chronicler William of Newburgh, commenting on what he saw as Henry II’s unwarranted favour towards his Jewish subjects, associated this with the large advances he was able to extract from them,10 which until late in his reign were usually made in the form of loans.  In 1186 Henry signalled a change in policy by imposing a massive tallage, allegedly of £60,000, on Jewish communities, and swiftly followed this with two more, but not all the money was collected.11  When Aaron of Lincoln, the greatest Jewish financier of his generation, died, also in 1186, his entire fortune, in cash, valuables and bonds, was on unspecified grounds declared forfeit to the crown.  But despite a special branch of the exchequer being set up to handle Aaron’s debts, sums amounting to £15,000 were still owing when they were transferred to the regular exchequer five years later, and some £12,000 in 1201; the fact that no interest was charged on Aaron’s debts after they came into the king’s hands must have removed what might otherwise have constituted a strong incentive to debtors to clear their obligations.12  Henry II granted charters of rights to English Jews, probably early in his reign, and in 1190 these were implicitly confirmed by Richard I.13  The latter also made considerable demands on his Jewish subjects, imposing four tallages of a total of 10,000 marks during his reign,14 but his exactions were probably no greater than those which he made on everyone else.  Following the massacres of Jews at York and elsewhere in 1190, moreover, determined efforts were made to punish those responsible, and in 1194 the articles of that year’s eyre included one concerned with `the killers of Jews’, though it also attempted to secure what was due to the king from the debts and chattels of the slain.15

(c) King John: responding to opportunities, 1199-1207

The disturbances of 1190 seem to have affected only the Jewish communities of London, York, Lincolnshire and East Anglia, and for these they constituted a heavy blow.  For English Jewry as a whole, a no less important development was the appointment, in around 1194, of officials known at first as `keepers’, and then as `justices of the Jews’, who soon took charge of a special `exchequer of the Jews’, which administered many of the crown’s financial dealings with Jews and exercised jurisdiction over most disputes between Jews and Christians.16  Associated with this innovation was an ordinance commanding the listing of all the property of Jews, whether in debts, or gages, or lands and rents, and the establishment of six or seven offices at which Jewish loans were to be recorded on chirographs, of which one part was to be handed over to the lender, having first been sealed by the borrower, while the other part was stored in a specially made chest.  As a control upon their payment, all debts were also to be enrolled, and changes in their status noted.17  These measures may have originated in Hubert Walter’s concern for efficiency (since everything a Jew owned was potentially the king’s, it was essential that full records be kept of Jewish transactions and debts), but they also created what was potentially a formidable apparatus of oppression and exploitation.

Such terms are readily associated with King John, but in the early years of his reign his dealings with Jews were in most respects similar to those of his brother and father.  On 31 July 1199 he confirmed Jacob the Jew of London in his position of `presbyter of all the Jews of England’,18 and on 10 April 1201 (at a price of 4000 marks) he issued two charters in which he confirmed grants which Richard I had made to a single English Jew and extended them to all the Jews of England and Normandy.19  The first mostly upheld rights of residence, tenure and inheritance which Jews had enjoyed since Henry II’s time, while the second gave the Jewish community jurisdiction over disputes arising between its members, as long as these did not involve pleas of the crown. Two years later John responded forcefully to reports of injuries being inflicted on Jews in London, at a time when they were living in peace elsewhere in the kingdom.  He ordered the mayor and citizens to protect Jews against attack and warned them he would hold them responsible for any Jewish blood that was shed, `for we know well’, he concluded, `that such things occur on account of the half-wits (fatuos) of the town, and not of the prudent, and the wise ought to constrain the stupidity of fools.’

In taking so firm a line, John made it clear that he was more concerned for the maintenance of his peace than for the well-being of Jews - `nor indeed were we moved in that for the sake of the Jews but for that of our peace, because if we had given our peace to a dog, it ought to be inviolably observed ...’.20   In November 1204 he granted his peace, along with licence to come safely to England and remain there, to a Jew named Hanuchim, as reward for the latter’s good service under Roger de Lacy in the recently lost fortress of Château Gaillard,21 but at the beginning of that year, as French pressure on the duchy of Normandy intensified, John showed what treatment English Jews might be exposed to as a result of his financial needs.  On 30 January the sheriffs of several East Anglian counties were ordered to make `urgent distraints’ on Jews for their debts to the crown,22 and further exactions soon followed, intensified, perhaps, by the loss of Normandy, since the resources of Jews there, and especially of their principal community in Rouen, were no longer available for exploitation.  In April 1205 `our Jewish prisoners’ were among those excepted from the general pardon which, following the death of Queen Eleanor, and for the good of her soul, was granted to those held in the king’s gaols – their arrest is probably to be associated with some unrecorded levy.23

Here John can be seen turning the screw on the Jews themselves, but he was already well aware that indebtedness to Jews could also be exploited to his own advantage.  In 1204 – and possibly earlier, gaps in the records prevent certainty – he had begun to grant letters to Jews ordering that debts to them should be paid, and that the king should receive one bezant for every pound collected.24  The sums in question were almost always described as including interest by chirograph (cum lucro per cirographum), suggesting that the Jews concerned were taking steps to secure payments of debts recorded under the ordinance of 1194, with the interest being included with the principal when the relevant bonds were drawn up.25  No doubt the letters were directed to sheriffs, and led to their powers of coercion being put at creditors’ disposal – two Jews who in 1205 obtained letters of this kind against two men and a woman who owed them money in Dorset and Somerset subsequently accounted for the bezants they owed, specifically `for distraining’ upon their debtors.26  Since a bezant was valued at approximately two shillings, the king profited to the extent of receiving a ten per cent levy on every Jewish debt which was collected in this way, and he probably received a modest fee for issuing the initial letters as well.  This was a device capable of infinite extension – anybody who owed money to a Jew could be harassed into paying up through such means, regardless of his or her eminence.  Also in 1205, a Gloucester Jew named Bonevie accounted at the exchequer for seven bezants (valued at 14s.), payment `for having letters for ten marks [£6. 13s. 4d.] upon the earl of Hereford.’27  Perhaps the king or his agents regarded this as only fair-dealing; whether it was prudent to enable a Jewish creditor to pursue one of the great men of the realm in order to enrich the king by 14s. does not seem to have been a question they asked themselves, at any rate not for some time.  Such letters went on being issued at least until 1208, when a further lacuna concealed their use – they had ceased to be recorded by the time the sequence of fine and oblate rolls resumed in 1213.

The use of letters ordering distraints upon debtors to Jews illustrates how the pressure which King John exerted upon the Jews themselves could have an impact extending far outside the Jewish community.  Their leading role as money-lenders, in an inadequately monetarised society, meant that the number of men and women, of every social rank, who became indebted to Jews was always considerable, while the risks which credit transactions entailed were such as to keep interest rates high.  These were not in fact always recorded, it seems to have been common for interest to be included with the principal when the initial terms of payment were laid down, though separate payments of interest would become due if the terms were not met.  Where interest was due from the outset, the usual rate seems to have been twopence per pound per week – that is, forty-three and a third per cent per annum; threepence was not unknown, however, and in one exceptional case sixpence.28  Although evidence is scanty, the accumulation of interest on a loan could plainly be substantial.  In 1215 a debt of ten marks was found to have gathered a further seven marks in interest,29 while in 1204 one Richard de Scrupes was recorded as owing at least thirty marks in interest to Jews of Gloucester from whom he had originally borrowed twenty-five and a half marks (unfortunately in neither case is there anything to show how long it took for the interest to accrue thus).30  As already noted, when a king demanded money from Jews, it was inevitable that the latter should in turn apply pressure to their debtors for the payment of money owed to them, interest as well as capital, so that the king’s demands could be met.  The process of debt collection was itself potentially stringent and methodically carried out; when land pledged as security was seized by a creditor, everything on it was valued and then passed into the creditor’s hands, to constitute part of the repayment.

Throughout his reign John used the king’s controlling interest in Jews as an instrument of patronage.  He might grant a respite on the payment of, or pardon the interest due from, Jewish debts, perhaps in consideration of the overseas service which had led to those debts being contracted, or even remit a debt entirely – on 8 August 1202 the stroke of a quill pen cleared the earl of Arundel of all his debts to Jews up to the beginning of the month.31  He might accept payment for rescheduling a Jewish debt.  In 1205 Henry Bec undertook to pay the king either a horse or twenty marks, whichever John preferred, in return for an order that Henry’s debt to Ivo the Jew of Lincoln be paid off at the rate of £50 per annum.32  He might grant Jewish property to a friend or ally.  Several of the keepers, or justices, of the Jews, benefited in this way, for instance Simon of Patishall, who was given two messuages in Northampton in 1200,33 and Thomas de Neville, who in around 1212  disposed of `houses which belonged to Aaron the Jew of Lincoln which I have by gift of the Lord King John ...’.34  In 1214 John gave his henchman William Brewer three Jewish houses, in London, Northampton and Oxford, in a single grant.35  The properties in question were already in the hands of the king when he disposed of them, but John’s opportunities for making such gifts could be augmented if land pledged to a Jew for a debt escheated to the king when the Jew died – in 1201 Maurice of Askern, a Yorkshire landowner, gave ten marks and a palfrey for a searching inquiry into debts owed to Josce of York by his father, who had pledged land in Askern to him, `and if that land came into the king’s hand for any other reason than as an escheat by Josce’s death.’36

(d) Tightening pressure: the measures of 1207

During the first half of John’s reign his exploitation of Jewish resources was mostly opportunistic and occasional, while the collection of Jewish debts which had become the property of the crown remained the responsibility of the exchequer of the Jews, which seems to have approached its task with a notable lack of urgency.  Prior Geoffrey of Canterbury, detailing in 1198 the wrongs suffered by his monks in a bitter dispute with Archbishop Walter, alleged that `Jews are compelled against their will (etiam inviti) to extort violently from us what we owe them ...’37 – the impression conveyed is of faceless bureaucrats exploiting their control of Jewish creditors to exert pressure from afar.  From 1207 the advantages of an oblique approach to debt collection were increasingly discarded, and King John’s own direct responsibility for fiscal pressure became all too clear.    That year saw both further demands on the English Jewish community, and determined efforts to collect Jewish debts which had passed into the king’s hands.  One tallage, of 4000 marks, was of less consequence than another, of a tenth of the value of each Jew’s bonds, this being backed by a record of those bonds which was to be deposited in the exchequer – from now on John had immediate access, at the centre of government, to up-to-date information about the resources of English Jews.38

The possible consequences for John’s subjects, Jews and Christians alike, can be illustrated from the case of Henry Lovel, who in 1208 proffered eighty marks and a palfrey to be cleared of the debt which his father, another Henry, who died in 1194, and his brother Ralph, who had died in the previous year, owed to Vives, a son of Aaron of Lincoln.39  For the purposes of the tenth Vives had valued the debt at 200 marks (£133. 6s. 8d.), and as part of the deal Lovel agreed to pay £78. 1s. 4½d. to the king, thereby settling a debt which Vives owed the crown, while he negotiated a settlement with Vives over the rest of the money (£55. 5s. 3½d.) – it may be doubted if Vives received so much, since it was stipulated that when he accounted with Lovel the latter was to be allowed any money already paid towards the settlement of his family’s debt, and three years earlier Ralph Lovel complained that Vives had been holding the Lovel barony of Castle Cary but had failed to acknowledge his receipts from it.  The net result was that John gained by accepting Henry Lovel’s fine, and also by being paid money owed him by Vives.  Lovel became clear of an inherited debt to Vives, but at the price of becoming more heavily indebted to the king than he had been before, altogether owing £331. 3s. 7d. and seven palfreys, which he was expected to pay off at the rate of 100 marks per annum.  Vives was cleared of a debt he had owed the king, but probably lost on the Lovel family debt – perhaps John or his advisers reckoned that he had understated the amount owed, and punished him by accepting his own estimate, so that he received, or was allowed, less than the full value of the debt.

At the same time the collection of the debts of Aaron of Lincoln was reactivated.  Although some of them were by now so old as to be regarded as well-nigh hopeless,  Aaron’s son Elyas, most likely yielding to force majeure,  gave 200 marks for having £400 worth of his father’s `worse bonds’, ones which had not been cleared `and which are worth less to the lord king’, and then a further three gold marks for a better deal, `for having such bonds as may be productive and from which profit may accrue to him’.40  Recorded payments show that while some of the bonds which Elyas chose were indeed likely to yield a safe return – Roger de Ginges, for instance, charged with £7 in 1208, had owed £26. 11s. in 1197, and had been steadily paying off his debt in the intervening years – others had done little to clear their debts since these were first recorded.  But it was essential for Elyas, if he was to profit from his bargain with the crown, that other men, for instance Robert de Gant, who had owed Aaron £26 in 1191, but had paid nothing at all since then, and Gilbert de Coleville, whose original debt of £70. 6s. 8d. (recorded in no less than nine bonds) had been reduced by just £5. 6s. 8d. in twenty-one years, should now pay up.41  Such men must have found the pressure they now came under to settle these aging debts, after years of tacit acquiescence in their non-payment, to be highly unwelcome if not actually offensive.

Jewish creditors and their debtors alike looked to the king for support and protection, which John duly supplied, at a price, at least once to both parties to the same contract.  In 1207 Isaac the son of Cresselinus gave £5 to be put in possession of the estate at Rushall, Wiltshire, of Fulk de Alno, who owed Isaac money, only for Fulk to give four palfreys to have the order revoked, by reference to a deal he had previously made with the king for paying his debt.42  Later that year Roger of Berkeley paid sixty marks for an inquest into the value of certain of his lands which had been pledged to, and were now occupied by, Jews of Bristol and Gloucester, with the object of recovering the lands and then paying their annual value to his creditors until his debt was paid.43  If the king required the service due from the land in the mean time, that was to be given priority over the payment of the debt – a proviso in keeping with that made by Clause 11 in 1215, laying down that when debts to Jews were paid, resources were to be kept in hand to enable the performance of services due to the lord.  But in Berkeley’s case (unlike Magna Carta) it was stipulated that the Jews were not be the losers from these arrangements – perhaps the creditors demanded this, with an eye to the royal exactions which may well have impelled them into foreclosing on Berkeley in the first place.  In 1208 Samuel son of Dieudonné made an agreement with the king to have royal support in raising money owed him by Richard Basset of Great Weldon; the fact that John’s price was a third of the entire debt gave him an interest in its collection almost as great as Samuel’s, and identified him closely with the methods used to raise the money – unsurprisingly, Basset was among the baronial rebels at the end of the reign.44

Another such rebel was Henry d’Oilli of Hook Norton, Oxfordshire, who accounted for £1015. 7s. 11d. for a debt to Simon the Jew of Oxford which had been taken into the king’s hand, probably in the previous year.  After making an initial payment of fifty marks, Henry agreed to pay 100 marks per annum until the debt was cleared, on condition that if he fell behind in his payments the bond recording the debt was to be returned to Simon, and whatever Henry had paid the king was to be regarded as lost, while Simon would presumably start exacting what was owed him all over again.45  Henry d’Oilli’s bond was entrusted to the chancellor, Walter de Gray, who as another Oxfordshire man would have been well placed to know the details of Henry’s circumstances.  Gray was just one of John’s agents to be active at this time on their master’s behalf, targeting Jews – in 1207 year Simon son of Jacob, a Jew of Northampton, gave 100 marks to have all his father’s lands, chattels and debts, reserving to the king `his debts and tallages and his third which Jacob owed the lord king, and his gold and silver found after his death’ (perhaps Simon was suspected of having tried to conceal some of his late father’s valuables)46 – and Christians alike, especially those who had owed money to Aaron of Lincoln.  Late in 1208 order was given that all the lands of those in arrears with such debts should be taken into the king’s hand.47

(e) Going to extremes, 1210-1215

All this was bad enough, both for the Jews and for those who owed them money, but the pressure exerted upon both became heavier still in 1210.  In the spring of that year order was given for the arrest of Jews throughout England and their imprisonment at Bristol,48 where, according to Wendover, they were harassed and tormented into putting their wealth at the king’s disposal; one unhappy man, who refused to pay the 10,000 marks demanded of him, had one of his teeth knocked out each day for a week, finally saving the rest when on the eighth day he agreed to pay up.49  According to Gervase of Canterbury (one of a number of chroniclers to record the financial assault on English Jews, which clearly made a considerable impression), others were hanged or blinded, presumably for resisting the king’s demands.50  This brutality was accompanied by the seizure of all records of debts owed to Jews, and was followed, late in the year, by an unprecedentedly heavy tallage, said during pleadings in the exchequer of Jews in 1218 to have amounted to £40,000.51  The cruelty of the initial attack on Jews may have been randomly inflicted, but the tallage was methodically raised.  Presumably in order to benefit from their inside knowledge, Jews were themselves employed as agents of collection (something which can only have further demoralised the Jewish community),52 and doubtful cases were carefully investigated.  Uncertain, following the arrest of Jews, as to which of two men named Walter of Thorpe owed £14 to Isaac of Norwich, the king’s justices sent messengers, seemingly from Bristol, to Isaac, who had been imprisoned in the Tower of London, to discover the identity of the debtor `from his own mouth’.53  Unable either to hide from the king’s collectors, or to meet the king’s demands, many poor Jews fled overseas.54

Debts to Jews which were taken over by the king were no less assiduously pursued.  Although the wording of the records is often perfunctory and obscure, it would appear that lands pledged to Jews for the payment of debts, and the estates of debtors to Jews whose obligations had come under the king’s control, were alike liable to seizure.  In 1211 three west-country men undertook to pay 500 marks on behalf of John de Montagu, lord of the Somerset barony of Chiselborough, and obtained possession of his land quia in rotulo Judeorum,55  and in the same year William of Windsor had to find £100 to recover his lands, taken into the king’s hand de debitis Judeorum, and then pay 100 marks per annum to clear the debts themselves.56  Some men, indeed, had to sell their lands in order to meet royal demands arising from Jewish debts.  Gilbert FitzReinfrey, the sheriff of Yorkshire, paid £100 to Richard of Middleton for all his land at Middleton and Kneeton `in clearance of the debt he owed the king for debts to Jews’, and then gave 6s. 8d. to have the transaction entered on the pipe roll as an authoritative record (Gilbert was later recorded as paying Richard’s debt into the exchequer).57  In the aftermath of the 1210 tallage a great many debts to Jews had fallen into the king’s hands, and these, too, were methodically pursued.  A surviving roll from around 1212, although damaged, records the regularised payments made by Jews, but also, and in far greater numbers, by Christians, from Norfolk and Suffolk, Bedfordshire and Buckinghamshire, Northamptonshire, Gloucestershire, Berkshire, Essex and Hertfordshire, Hampshire, Cambridgeshire and Huntingdonshire, Yorkshire, Lincolnshire, Wiltshire, Dorset and Somerset, Sussex, London and Middlesex, Surrey, Devon, Oxfordshire, Kent, Warwickshire and Leicestershire, and the city of York.58  Only the far north, the far south west, and the Welsh marches are unrepresented.  A few of the sums involved were relatively substantial, between £15 and £45, but many were small, recorded only in shillings.  Among the debtors from East Anglia, for instance, were Stephen Blundus, owing 4s. for his mother Agnes, Henry the son of Robert of Bungay, owing 6s. 8d., and Basilea de Friville, who owed 10s.  None of the debts entered on this roll can be identified among those owing to Aaron of Lincoln, rather they all appear to have been recently incurred, but whatever their size they were all now being collected.  The process is unlikely to have made King John any friends, and indeed, in the insignificance of the debtors, and the smallness of the sums they owed, it shows how far down society the impact of Jewish money-lending, and also of the king’s pursuit of the resulting debts, had by now extended.

The king seems to have sensed that his exploitation of Jewish debt was arousing resentment, for on 18 August 1212 he instructed all the sheriffs of England to cause `all debtors of Jewish debts’, except earls and barons, to come before him, so that their debts could be lightened, possibly by confining them to the principal owed.59  But the relief seems to have been short-lived, for in the same year Richard Marsh, one of John’s leading advisers, was recorded as `shamelessly’ (improbissime) collecting Jewish debts, with interest, from everyone,60 and in February 1213 John seems to have been planning further demands on Jews and their debtors, for he appointed commissioners who were not only to investigate official misconduct in Lincolnshire and Yorkshire but were also to inquire into `who have held the gages [vadia] of Jews and from what time and by what have they held them and how much they are worth and the names of each of the pledges.  And do you also let us know the houses and demesnes of Jews and which demesnes they have held at fee and which yearly and of whom they have held them and how much they have rendered for them and how much they are worth more than they have rendered ...’.61  In July that year efforts were being made to collect arrears from the tallage of 1210.62  There could be some easing of pressure in favoured cases, for instance Robert de Ros, cleared of Jewish debts worth eighty marks in November 1213,63 or Simon of Kyme, who in around 1212 negotiated a settlement of an accumulated debt of nearly £1275, of which £419. 11s. 6d. was interest, and who in 1214 was also granted respite of payment of a Jewish debt of 700 marks inherited from his father.64  But others enjoyed no such let-up.  There is no evidence, for instance, that any remission was granted to Eustace de Vescy of his alleged debt of £50 de Judeis.65

(f) Magna Carta and the Jews

Vescy, Ros and Kyme all rebelled in 1215, along with many other landowners who had suffered from John’s exploitation of Jews and the debts owed to them.  As for the Jews themselves, they suffered both from that exploitation and from the enforced closeness of their association with the king’s money-raising methods, which can only have intensified the antagonism already felt towards them on religious grounds.  The theologian William de Montibus, who was for some twenty years chancellor of Lincoln Cathedral, pinpointed this aspect of the relationship between king and Jews when he characterised the latter as `the sponges of the king.  They are blood-suckers of Christian purses, by whose robbery kings despoil and deprive poor men of their goods.’66  When the barons captured London on 17 May 1215, they immediately demolished Jewish houses and used the materials to strengthen the city’s defences.67  (According to the sixteenth-century antiquary John Stow, when the Ludgate gate was rebuilt in 1586, a stone engraved in Hebrew letters with the name of Rabbi Moses, the son of Rabbi Isaac, was found embedded in the ancient masonry, a discovery plausibly associated by Stow with the baronial action.)68  But although the king’s enemies must have felt that they had more than sufficient reason for resenting the ways in which John had used his control of English Jews and their resources at his subjects’ expense, they placed remarkably few constraints upon them in Magna Carta – Clause 11 dealt with what can have been only a relatively insignificant weapon in the formidable armoury of extortion and oppression which control of Jewish finance had placed at King John’s disposal.69  Provision was made for the dismissal of the king’s foreign mercenaries, but no similar order was given for the expulsion of Jews, although the idea seems to have been in the air, and had indeed been briefly implemented in the Île-de-France in 1182 (the Jews expelled in that year were allowed to return in 1198).70

One reason for the near total absence of references to Jews in Magna Carta may have been an understanding that their financial skills, particularly where credit transactions were concerned, and their ability to provide ready money at a time when supplies of hard cash were limited, were socially and economically indispensable.  Landowners of all ranks needed access to their expertise and resources, and were certainly not above exploiting the indebtedness to Jews of their Christian neighbours in much the same way that the king did.  Among the men who owed Jewish debts to the king in the years immediately before  Magna Carta were Roger Bigot, earl of Norfolk (one of the twenty-five barons charged with overseeing the implementation of the Charter), recorded as paying £20 on behalf of the heirs of William de Pirho and debts totalling £9 10s. for Robert de Auvilers, William d’Aubigny, earl of Arundel, who paid £10 of the debts of the Lincolnshire baron Robert of Tattershall, and the justice Simon of Patteshall, charged with £15 `for the fine of Robert de Broy’;71 these men, and others like them, had presumably been buying up Jewish debts, no doubt at a discount, and then either collecting them or foreclosing on them, in either case to their own advantage.  Religious houses notoriously expanded their estates in the same way.72  It was unlikely that lay and ecclesiastical lords would willingly forego the employment of such techniques, even though they might also be used to their own detriment, and they might well have been reluctant to deny the king practices which they exploited themselves.  It is also possible that there was a growing feeling that action against Jewish usury was something best left to the church, which had more than once forbidden Jews to take interest on loans made to crusaders,73 while a ban on the taking of excessive interest from Christians by Jews appeared among a number of restrictions placed upon the latter by the decrees of the fourth Lateran Council later in 1215.74

But the main reason for the lack of substantive action was most likely a feeling – one surely felt, and vigorously expressed, by King John - that the treatment, and exploitation, of Jews was too integrally a part of the royal prerogative to be easily separated from it. Writing to the sheriff of Herefordshire in June 1218 (and also to a number of other sheriffs and officials), Henry III’s minority government ordered him to ensure that `our Jews’ were able to live in Hereford, `as they used to do in the time of King J. our father’, and that he was to permit nobody to molest them, not least the bishop of Hereford, `because our Jews are no concern of his.’75  In every respect Jews were to be treated as they had been in the previous reign, when they had been no less `our Jews’, and when the king’s charter of 1201 had licensed Jews to go wherever they wished `with all their chattels as [if they were] our own’.  It was probably because they shared John’s belief that Jews were in some sense a royal monopoly, or at any rate were forced by the king’s recalcitrance to accept it, that the barons confined themselves to protecting only the most vulnerable of the potential victims of Jewish money-lending – the widows and under-age children of debtors to Jews – with the result that action against other debtors continued to be taken as before.  When he was at Gloucester in August 1216 John was no doubt happy to receive a payment of 60s. to have a Jewish widow provided with a writ `for making distraint for the debt of £9 with interest which Henry the burgess owes her, as she says.’76  Even Clause 11 may quickly have come to be regarded as amounting to an unwarranted infringement of royal rights, for no equivalent clause appeared in any of the reissues of Magna Carta.

(g) Clause 11

Clause 11 extended the protection given by Clause 10 to under-age heirs to all a landowner’s children, by ordering that they be maintained from their inheritances in a manner appropriate to the latter’s value, with only the residue being drawn upon for the payment of debts, whether these were owed to Jews or Christians.  And the widows of debtors to Jews were also protected, by the stipulation that they were to receive their dowers, customarily a third of a husband’s estate, without any part of the debt being levied upon them.  In fact it would appear that a widow’s right to her dower was nominally protected already.  The Dialogue of the Exchequer ruled concerning debts owed to the king that `the wife who survives her husband and has children, and remains with them in her widowhood, should be summoned and distrained on behalf of the children who are due to inherit, but not for her dower, which is her reward [i.e. given her in return] for her chastity’,77 and the same protocols seem to have applied to Jewish debts which had passed into the king’s hands.  Graelengus de Marisco, responding in 1198 to an action by Galiena, widow of Geoffrey de Marisco, for a carucate of land in Wennington, Essex, as part of her dower, claimed that the land in question was no part of Galiena’s dower, `but she was dowered from land at Wennington marsh of the fee of [the abbot of] Westminster, and that after Geoffrey’s death that land was seized into the hands of Jews for Geoffrey’s debts, and Galiena delivered the land from them as her dower ...’.78  The contested issue seems to have been where the disputed property was, and Galiena did not dispute Graelengus’s assertion concerning her recovery of her dower from Jews.  In 1201 a woman named Cecilia, the widow of Terricus, sued two Jews for two messuages in London, `which she claims in dower’; the fact that when the defendants did not come, order was given in the usual way for the properties to be taken into the king’s hand, suggests that the justices saw nothing anomalous in the action.79

The fact that lands pledged for debt might not only pass into the hands of Jews but could also then be transferred by them to others sometimes led to difficulties.  Matilda, widow of Ralph de Tiville, claiming the Norfolk manor of Intworth as her dower in the common bench in 1220, found that its current holders were merely the tenants of Isaac of Norwich, to whom her own father-in-law, another Ralph de Tiville, had conveyed it as a pledge, while Ralph senior, who had already demanded the manor himself in the exchequer of Jews, then further complicated matters by describing how he had undertaken to pay King John £120 for the recovery of the manor, probably in 1212, and had paid £21. 13s. 4d. into the exchequer before the outbreak of civil war.  And he successfully claimed that he had been wrongfully dispossessed of Intworth in favour of Isaac’s tenants at an eyre held in Norfolk in 1219, so that proceedings finished with Ralph being put back in occupation of the manor and Matilda being told to sue against him if she wished (the case was ended by a settlement in the following year), while Isaac was referred to the exchequer of the Jews.80

In his dealings with King John, Ralph senior does not seem to have given any thought to his daughter-in-law’s right to dower, and it may be assumed that the issue was not raised by the king either.  In any case neither custom nor legality could be relied upon as a defence against royal demands.  In an unfortunately damaged entry from 1214, Mary, widow of Adam of Tolworth, sued Robert le Grant for a third of forty acres in Tolworth; the defendant vouched Robert son of Adam, presumably Mary’s son or stepson, to warranty, and this second Robert acknowledged his own charter, but added that `his father’s land was seized into the king’s hand for debts to Jews which his father owed them ...’.81  The implication of Robert son of Adam’s statement is that his father was dead when the lands were seized, so that although the state of the document makes it impossible to be certain that this was so, his plea apparently shows land being taken by the king for Jewish debt without consideration for any rights to dower that might be annexed to it.  Nor may this have been the only way in which widows found it had difficulty securing their dowers, once the issue was obscured by the issue of Jewish debt.

As Clause 7 of Magna Carta showed, women also needed help in obtaining both their inheritances and their marriage portions, and such assets were probably easily confused, or treated together with, dowers, especially by the agents of an exigent and unscrupulous king.  In 1208, for instance, Margaret de Lucy, the widow of a Dorset landowner, gave five marks to have her inheritance, which Robert her husband had given in pledge to Jews (probably Aaron of Lincoln), on the understanding that the latter would in due course apply to Robert’s heir for his father’s debt (as stipulated by the Dialogue of the Exchequer), having earlier proffered forty marks to have her dower, the land which was hers by right and inheritance, and for the right to remain unmarried.82  In such a case, a widow’s various rights were hardly distinguishable from one another, and all came under threat together.  But in financial terms Margaret de Lucy escaped lightly compared with Margaret, the daughter of William de Chesney of Blythborough, and wife of Robert FitzRoger of Whalton.  Her father, who died in 1174, had been indebted to Jews, and in 1208 Robert obtained quittance for life from the king of all the Jewish debts for which his marriage would otherwise have made him responsible.83  But Robert died in 1214, and those debts now became the responsibility of his widow, who in December that year had to proffer £1000 for her inheritance, `and that for all the days of her life she may have peace for the debts to Jews which her father owed in his lifetime, and that she may have her dower according to the custom of our kingdom of England ...’.84  Again, dower and other rights seem to have been treated as parts of a single package.

It is unfortunate that although the roll of Jewish debts from John’s latter years show a number of widows as accounting for money owed – Matilda, the widow of John of Ludham, paid 40d., for instance, Claricia the widow of Roger 2s. 4d.85 – they contain nothing to show whether such payments were exacted from their dowers or not.  And they are no more informative about the sums paid by heirs.  It is possible that Robert Aguillun’s payment of five marks on behalf of the heirs of William de Fresney, or Ralph de Normanville’s probably regular payments of £44 for the debts of William de Mountchesney, the elder brother of the Warin de Mountchesney noted above as paying 2000 marks to enter his inheritance free of Jewish debt,86 so reduced the funds available for the maintenance of the heirs in question as to leave them inadequately provided for, but the records do not say so.  Similarly when in 1211 John FitzHugh, one of John’s principal agents, paid £100 for the wardship of the lands and heirs of Walter FitzGodfrey, seemingly a relatively minor royal servant, with interests in several counties but no extensive estates in any of them, and on top of that undertook to pay a further £100 to cover Walter’s debts to the king, of which £80 were owed pro debito Judeorum,87 one is bound to wonder how much would have been left over for the subsistence of the heirs, but again, speculation is all that is possible.  There can indeed be no doubt of the accumulative impact which Jewish debts had upon those afflicted by them, and by the king’s manipulation of them, but these particular manifestations of the hardships they imposed are most clearly illustrated by the clauses in Magna Carta intended to eliminate them.  Perhaps they were not in fact inflicted very often, or perhaps they came to be regarded in the same equivocal light as the king’s rights over Jews as a whole, for Clause 11 was dropped from later reissues of the Charter.

Citation

Aims and means

Clause 12 has been condemned as unsatisfactory, especially for its confusion of terms as it attempted to mount a unified attack on financial instruments which were related only by their being important components of King John’s fiscal armoury.1  The criticism is easily justified, not least by the Clause’s failure to survive into later reissues of Magna Carta.  That said, the flexible and improvisatory nature of Angevin government, which could make abuses of power very hard to identify with exactness, was such that probably only a broad-brush attack on the king’s methods, one which gave the barons a general control over what they saw as his tools of financial oppression, had any chance of success.  This Clause 12 attempted to achieve, by targeting two of John’s main instruments of taxation and subjecting them to tight constraints.  It may have failed (though the extent of its failure has probably been exaggerated), but it is not easy to see how in the circumstances of 1215 the barons could have done much better.

The potential for difficulties was there from the start.  The bulk of Clause 12 appeared as number 32 among the Articles of the Barons, where its content relating to London no doubt accounted for its coming between two articles relating to trade.  In Magna Carta these two became Clauses 41 and 42, but the two articles which followed them (34 and 35), which were largely concerned with the effects of indebtedness to Jews, were moved up to become Clauses 10 and 11 of the Charter, with what had been Article 32 immediately behind them, so that these three formed part of a group of clauses primarily concerned with John’s exploitation of his traditional rights in order to raise money.  The effect of this transfer was weakened, however, by the treatment of the London material in what had been Article 32.  As finally drafted, Clause 12 placed strict controls on the king’s right to demand the levies known as aids and scutages, in terms applicable to the tenants-in-chief, but where aids were concerned extended them to the city of London.2 Article 32 had spoken of tallages as well as aids, so extending the restriction to the arbitrary levies which the king was traditionally entitled to impose, as and when he chose, on cities, boroughs and demesnes over which he exercised lordship.  Clause 12 made no mention of tallages, however, and hived off the rest of the Article to form Clause 13.  This confirmed the city in its ancient liberties, and extended the grant to `all other cities, boroughs, towns and ports’, but made no reference to taxation, so that this clause appears, rather awkwardly, as an irrelevant pendant to Clause 12, one which separated it from its natural accompaniment of Clause 14. 

Clause 14 (which had no equivalent among the Articles) completed Clause 12 by specifying how, and by whom, taxation was to be assessed in future, and was itself followed by two further clauses relating to taxation.  The first of these dealt directly, the second by implication, with the rights of sub-tenants – the levying of aids and scutages had effects which extended beyond the magnates.  It was in fact Clause 16 which spelt out one of the grievances which Clause 12 was directed against, one especially related to scutage, namely John’s misuse of his power to demand more in service, or for commutation of service, than those subjected to it actually owed him.3  For this Clause 12 attempted to provide the remedy, but without defining the grievance.  The other issue was that of consent, and on this point – at least in the eyes of posterity – the barons went some way towards undermining their own case by treating aids and scutages as if they were somehow the same, so that they could be appropriately resisted or controlled together.

Problems of definition

Strictly speaking they were not identical.  Scutage was the sum charged by the king in commutation of the military service owed by a tenant-in-chief.  Originating in the late eleventh century, it was traditionally assessed on the knight’s fee, at a rate decided on by the king, in accordance with his perception of his own military needs - it was for him to summon the feudal host, and when he did so to decide who should serve in person, and who was to be allowed to pay in lieu of service, and what the relevant payment should be.  An aid was in its origins little more than an adjunct of lordship, and has been appropriately placed among the `vague obligations’ which any lord could call upon his dependents to fulfil, without necessarily being able to enforce them.4  A powerful ruler or lord could demand the assistance of his subordinates, and make his demand effective, simply by reason of his power, as Henry I doubtless did when, on the evidence of the 1130 pipe roll, he took aids throughout England from the boroughs, cities, counties and knights of the kingdom.5  Others relied on negotiation, or on claims based upon custom rather than strength. 

During the twelfth century there was a movement towards definition, with regard to aids as to much else, and thus towards restriction.  In Clause 12 the limits set upon aids were presented in terms of their effects upon the king’s revenue and authority, but they arose from a tendency towards restraint upon lordship of all kinds, baronial as well as royal, where such demands were concerned.  Glanvill, in a discussion of the relations between lords and vassals which was only incidentally concerned with the interests of the crown, posited a lord who had paid a relief for the right to succeed to his inheritance being able to recoup his outlay by taking `reasonable aids for this purpose from his own men.’  This he was to do `in moderation’, according to the treatise, which also allowed the taking of an aid when a lord’s son and heir was knighted, or his eldest daughter married, while at the same time acknowledging the prevailing greyness of the area in question by conceding that `there is no certain rule laid down about the giving or exacting of aids of this kind ...’.6  Glanvill was probably written in the late 1180s.  Only a few years earlier a grant to St Andrew’s Priory, Northampton, by William FitzRichard, a tenant of the barony of Weedon Pinkeny, had confirmed a grant of land in Sulgrave upon conditions which included contributing to three specific `services’ – the ransoming of the grantor’s body, the knighting of his first-born son, and the marriage of his eldest daughter.  There was also the possibility that the canons of St Andrew’s would be called upon to join with William’s other free tenants in granting him a `common aid’, in which case they would do so in proportion to their holding (secundum suam tenuram).7  There was no reference to consent, which need not mean that none was called for – William’s charter may well have been observing a distinction between the kinds of aid (identical with those of Clause 12) which could legitimately be taken without prior consultation, and other kinds which a lord was expected to negotiate.  In any case, the fact that contributions were to be assessed in accordance with the size of each tenant’s property suggests that whatever form a `common aid’ may once have taken, it now involved something more orderly than a high-handed raid upon the resources of the tenantry

The developments implicit in Glanvill and the Sulgrave charter probably made it easier for the barons to impose limits on the king’s ability to exact `gracious’ aids – their own ability to make similar demands on their own tenants was being increasingly constrained, by custom and quite possibly also by outright resistance.  Like the king, they were having to accept that such aids could only be taken with consent.  The very fact that Clause 15 – without much doubt included in Magna Carta at the behest of the barons’ tenants – forbade the king to grant to anyone the right to take an aid except on the grounds set out in Clause 12, suggests strongly that such levies could no longer be taken without royal authority, and the force at its disposal, to back them up. Clause 12 dealt likewise with the royal power itself, henceforward the occasions on which a king could make an irrefutable claim upon the resources of his tenants-in-chief were limited to the three set out in that clause, a process which was arguably completed there.  By 1215 those occasions were probably uncontentious, all the more so, perhaps, because at that time only the first of them can have seemed even remotely likely to arise for several years.  It was not completely beyond the bounds of possibility that the king himself might at some point need to be ransomed, as Richard I had been, but John’s eldest son was a boy of seven, and his eldest daughter only four, so that both were likely to be some years away from knighthood and matrimony respectively. 

Terms and taxes

Of course, the barons must have been aware that mere implausibility was no necessary impediment to a king of John’s ingenuity levying such aids should he feel in need of one, and the stipulation that they should only be taken at rates felt to be `reasonable’ may have been partly included as a control on chicanery of this kind.  But Clause 12 was not principally concerned with this possibility, but with the fact that a king was entitled to demand an aid in other circumstances, should circumstances require it, and at its heart lay the stipulation that neither these, nor scutages, were to be imposed `except by the common counsel of the kingdom’.  That expression has been interpreted as signifying a council in the sense of a formal assembly.  Clause 12 - particularly as reinforced by Clause 14 - would in fact go a long way towards giving it that meaning, but in 1215 there can be little doubt that what was demanded was not an institution but a process, whereby the king’s financial needs were met only after they had been subjected to discussion, advice and consent involving the ecclesiastical and lay magnates.8  As far as exceptional, or `gracious’, aids were concerned, this was in fact already common, though perhaps not invariable, practice.  Much of the criticism directed against Clause 12 has stemmed from the way in which it elided such aids with scutages, and treated two fundamentally different forms of taxation as if they were essentially the same, and could therefore be appropriately levied using the same political and administrative machinery.  But that criticism may not take sufficiently into account the interchangeability of the terms used to describe twelfth-century taxes, one which led to a semantic confusion which was not of the barons’ making but which in 1215 they could try to exploit, just as King John himself had previously done.  Aid (auxilium) in particular was used to describe a number of different taxes, while aids which were taxes in the sense employed by Clause 12 might be referred to by names, or be raised using methods, more often associated with other levies. 

Tallages were often referred to as aids, and the two taxes had much in common, not least in originating in the claims made by lords on the resources of their dependents.  However, tallages retained connotations of arbitrariness which aids gradually lost, and consequently it has been suggested that a tallage might be referred to as an aid when it were imposed on towns, as a sop to urban sensitivities, on the grounds that the arbitrary nature of tallages led to their being particularly associated with unfreedom, and so to their being strongly resented by urban communities at a time when residence in them, at any rate when accompanied by prosperity, could release a man from villeinage9 – a development recorded in Glanvill.10  But in fact liability to tallage does not appear in the twelfth century to have been an infallible indication of serfdom,11 and in any case, although it is true that when Henry II imposed a tallage in 1156 it was recorded as a `gift’ from the counties but an `aid’ from the towns,12 there is no reason to believe that the latter’s payments were any less enforced than the former’s. 

In fact there was little consistency in the application of any of the terms used - when Henry took another tallage in 1162, consecutive entries record his receiving £15 from Worcester as a gift, and £5 from Droitwich as an aid.13  And when he led what was largely an army of mercenaries against Toulouse in 1159, the campaign was financed by what – as described by the chronicler Robert de Torigni – was indisputably a scutage, levied at the rate of 60s. (Angevin) per knight’s fee,14 yet when the advocate of Béthune paid £6. 13s. 4d. in 1163, this, too, was described as an aid (de auxilio exercitus de Tolusa).15   On the other hand, when Henry needed to finance the marriage of his daughter Matilda to the duke of Saxony (and probably other commitments as well) in 1168, he did so by means of an aid, but raised the money by what was in effect a scutage, using a new assessment carried out two years earlier, at the rate of one mark per knight’s fee.16  A further tallage in 1177 was referred to as an aid on boroughs and townships, but an assessment (assisa) on the king’s demesnes.17  The Saladin tithe, granted for the recovery of the Holy Land at a council at Geddington in February 1188, had all the qualities associated with an aid, but the instructions for its collection referred to it only as a tithe (decima).18 

The ransom of Richard I, which was raised in 1193/4 by a variety of methods including a fourth on landed revenues and movable property, a scutage, a carucage (a levy on land at the rate of 2s. per hide - roughly 120 acres), and at least two aids,19 was said by Ralph de Diceto to have been collected `by common assent’ (assensu communi).20  But in the context of Diceto’s account of the whole country uniting to gather the money, the phrase was probably intended to mean only that there were no objectors,21 and Roger of Howden seems more likely to have been correct when he stated that at first the ransom was simply decreed (statuerunt) by Queen Eleanor and the English justices (probably the men who had until recently been assisting the justiciar Walter de Coutances in the task of government),22 especially as he was followed in this by Roger of Wendover – continuo exiit edictum a justiciariis regis.23  It was nevertheless referred to as an aid, both by Howden himself, who presented his account of it under the heading De auxilio ad redemptionem regis statuto, and in one of the articles which justices itinerant were ordered to investigate in the autumn of 119424 – presentments were regularly made at that year’s Wiltshire eyre of the proceeds of a first and second aid.25 

Possibly the sheer scale of the ransom, and the resentment and resistance it was certain to arouse, were such that initially, at least, it could only have been raised by government fiat, and in fact, when the first levies failed to raise all the money needed, other methods were employed, imposed, according to Gervase of Canterbury, by a series of councils,26 which may with hindsight have been regarded as justifying the description of the ransom as an aid.  But it is equally possible that in the 1190s consent was not yet universally regarded as essential to the raising of an aid, and that when it came to taking one, the king’s need was still regarded as its own justification.  Richard I’s attempt of 1197 to raise money to maintain a force of knights in Normandy was discussed at a council at Oxford, where it was thwarted by the opposition of the bishop of Lincoln.27  Perhaps to avoid a second frustration, another carucage in the following year does not seem to have been debated beforehand, although the machinery for its collection was both elaborate and intrusive – this apparent arbitrariness may explain why at the parochial level it could be equated with a tallage.28

On 22 May 1200 King John attempted to settle his differences with King Philip of France through a treaty negotiated at Le Goulet in Normandy.  Its terms included the payment by John of 20,000 marks, which he set about raising, according to Ralph of Coggeshall, by an aid in the form of a carucage.29  It was demanded (expostulans) by the king, by whose justices its payment was then decreed (edictum) in the counties, where it came as a heavy burden immediately after a scutage at the unprecedented rate of two marks per knight’s fee (the adjective gravis was applied to both taxes).  Coggeshall distinguished the aid from the scutage, but said nothing to indicate that they were differently imposed, each seems to have been levied by an act of the royal will.  The fact that it could be imposed arbitrarily made scutage John’s favoured means of nationwide taxation thereafter, but he maintained the confusion of terminology by twice, in 1204 and 1205, taking it with the consent of the magnates, so effectively making it an aid.30  John’s order to the justiciar in the latter year, to raise 500 marks from the abbot of Bury St Edmunds for dues and debts which included `having his scutage and aid at one mark from each knight’s fee’, shows precisely how the two taxes could be run together.31

The impact of ideas

This was a development with the potential to be disadvantageous to the king, however, and it coincided with another.  John’s demands were never likely to be welcome, especially as they came to be made with ever greater frequency, and they also became increasingly open to ideological, as well as personal objections, thanks to the development of notions of public authority and the common weal which may have originated in, though they need not have been directly borrowed from, Roman law.32  King John himself, or at any rate those who issued documents in his name, seems to have become aware of such ideas.  In February 1204, shortly after his last, unsuccessful visit to Normandy, he addressed an appeal for help to the lords and clergy of Ireland in which he presented his predicament in purely personal terms – his inheritance was at risk and he needed their assistance, in both knights and money, at this hour of great need, `as you love us and our honour.’33  But a year later an additional dimension had been provided to frame the king’s needs, for now the magnates were summoned to join him in London on 15 May 1205, `to treat concerning our great and laborious affairs and the common utility of our realm’,34 the king’s business and the good of the realm being now presented as effectively synonymous.  It was in similar terms, after a council at Oxford had given a grudging consent to the heaviest tax of the whole reign, that on 17 February 1207 the king announced the levying of a thirteenth on revenues and movables, as `provided for the defence of our kingdom and the recovery of our right’.35  In fact there was no plausible danger of invasion at the time, and from the fact that the tax was payable by `each lay man of the whole of England of whosesoever fee he may be’, it would appear that the thinking behind the king’s demands owed at least as much to his feudal lordship as to any notion he may have had of national sovereignty, but the former may no longer have seemed sufficient to justify a levy on this scale (it raised around £60,000). 

No doubt it was John’s intention that those who had reservations about his pursuit of his rights should feel unable to object to the protection of the realm, even if that, too, was `ours’ in the king’s eyes.  But the equation of these two elements was potentially a double-edged weapon, since bishops and barons, too, had ideas about national well-being, which were not necessarily identical with the king’s, but which were arguably legitimized by documents like the summons of 1205 and the writ authorising the thirteenth.  They saw themselves as embodying the community whose well-being was now professedly at issue, and although the fact that the thirteenth was said to have been imposed `by the common counsel and consent of our council’ may not exactly have furnished a precedent for their involvement in the processes of taxation, since the king’s council was a limited group,36 it seems certain to have provided a potential model for this, since in their own eyes, and also in those of the realm at large, they could claim the right to speak for the latter and to cooperate with the king in its government.  The thirteenth of 1207, which was unequivocally described as an aid in the writ ordering its collection, was thus as important for its stated justification as for its contribution to the development of fiscal administration.  However, it may have been partly for the same reason that as a tax upon property it had no immediate successor; in order to exclude magnate participation in government, as well as because it suited his naturally authoritarian temperament, John reverted to raising money through scutages and the ruthless exploitation of all the other resources of kingship. 

Royal resistance

The re-emergence of ideas of `common counsel’ in 1215, attached now to the kingdom rather than to the royal council, was doubtless encouraged both by memories of the thirteenth, and also by John’s methods, financial and otherwise, in the years which followed it.  When he summoned his subjects to man the coasts against a threatened invasion in the spring of 1213, for instance, although he called on them to defend `our head and their own heads and the land of England’, he made no mention of consultation or consent.37  Whatever he may have thought about national security as a matter of common concern in 1207, six years later he treated it as a matter for his sole judgment.  Inevitably he did the same when he tried to raise a scutage in the following year to reimburse his expenditure on that year’s expedition to Poitou, ordering its collection in a letter sent from Parthenay on 26 May 1214 which set out its purpose in characteristically peremptory terms – statuimus tres marcas capi de scutagio.38  When the demand ran into opposition, he eventually called upon the pope for support, and on 1 April 1215 received it, one autocrat here endorsing another.39 

Meanwhile war was not John’s only concern, for he also needed to raise up to 100,000 marks to compensate bishops, abbots and other ecclesiastics for their losses at the hands of the king and his agents during the interdict.40  A letter-patent addressed `to barons, knights and all his liegemen of the whole of England’ which was sent from La Rochelle on 6 March 1214, and which announced that the interdict was over and asked for help and counsel in amending the state of the realm, may have been issued in the hope of, or as a prelude to, an appeal for money, but if so it had no effect.  Perhaps addressing the letter’s recipients as `our dear and faithful men in whose love and loyalty we fully trust’ merely irritated them.  But two days later the king reverted to more familiar methods, in the form of letters sent on 8 March to the men of `all the lord king’s boroughs and demesnes’ requesting a loan to enable him to settle his differences with the church41 - the `loan’ was to be emphatically an enforced one, for it was entered on the pipe roll as a tallage.42  Indeed, this tax provides a good example of the way multiple terms could be used to refer to the same levy, for in later records, and also in some royal mandates sent out in 1214, it was referred to as an aid, imposed `for the lifting of the interdict’ (ad relaxionem interdicti), making clear that its purpose was to finance the compensation of the clergy.43  London paid 2000 marks towards the 1214 tallage;44 describing the tax as an aid would have done nothing to reduce the city’s contribution to it.

The king’s right to levy scutage had long been uncontested.  It was for him to decide whether a campaign should take place, who should attend it, and how it was to be fought and funded.  But by no means all of John’s scutages were in fact levied in order to finance military undertakings.  At the very beginning of his reign he demanded a scutage months before fighting began in Normandy, and he took one in 1201 when no campaign was mounted at all, in France or anywhere else, while in 1209, though he could claim in justification for levying a scutage that he had led an army to the Scottish border, in fact his dispute with William the Lion was decided by treaty, rather than battle.45  The king’s own actions, on occasions like these, were partly responsible for the differences between a scutage and an aid having by 1215 become so blurred that it was hardly surprising, or unreasonable, that the barons should have demanded the right to treat them as identical, and to insist on their right to be consulted before either was levied, especially when ideological developments were also encouraging them in this stance.  The conventional aid taken for the marriage of Princess Matilda in 1168, together with those subsequently raised for the marriages of Princess Isabella in 1235 and Princess Margaret in 1245 and the knighting of the Lord Edward in 1253, were all assessed on knights’ fees, and so were the taxes of 1204 and 1205, while although the bulk of Richard I’s ransom and the thirteenth of 1207 were raised by other means, the former was supplemented by a scutage, while the reference in the writ ordering the latter’s collection to the fees of those who paid it suggests that even when implementing a fiscal innovation, King John himself instinctively saw his tax-base in terms of feudal units.  In 1215 the barons turned against him an analogy which he had previously exploited to his own advantage. 

Unresolved difficulties

There were still difficulties, of course.  Linking aids and scutages may not have been as much of an innovation as might at first sight appear, but they were not in fact quite close enough together for the connection to be maintained.  Only on the three conventional aids was any effort made to fix the rate at which levies should be imposed, and for these all that was suggested was that they should be `reasonable’.  In the first reissue of the Charter, of 12 November 1216, Clause 12 was one of several to be set to one side for further discussion, while all that survived of it into the second reissue, granted twelve months later, was the stipulation that `scutage shall be taken in future as used to be taken in the time of King Henry our grandfather’.46  Clause 8 of the `Unknown Charter’ had proposed a rate of one mark per fee, a figure which might have been acceptable enough to Henry II in 1168, but which was totally unrealistic as a means of financing a campaign nearly fifty years later, as the clause itself effectively conceded when it added the rider – one which ahead of Clause 12 showed the magnates to be determined to control the king’s right to levy scutages47 - that if necessary a higher rate could be taken on the advice of the barons.48 

Under Henry II the usual rate for scutage subsequently became 20s. per knight’s fee, and this may have been what the draftsmen of the Charter had in mind by `reasonable’, on the evidence of a number of settlements of land disputes from John’s reign in which defined, or alleged, contributions to scutage took 20s. as its typical amount.  Thus when William de Hauville and Ralph of Grantham settled a dispute over property in Helhoughton, Norfolk, in 1201, it was agreed that Ralph should pay 2s. to William for a scutage of 20s.,49 while two years later William Mordant, the defendant against Henry Tresgoz in an action over land in Goring, Sussex, claimed that he was bound to pay Henry only 18d. `when a scutage of 20s. is given....’.50  In 1206 a number of the Suffolk tenants of Roger de St Philibert acknowledged owing him sums ranging from 20d. to 44d. when scutage was demanded, with the rate of the latter, when given, being always defined as 20s.51  It seems unlikely that this figure was always chosen because fractions of it were easy to calculate, not least because lawsuits from later in John’s reign sometimes reflect or refer to the higher rates of scutage which were being levied by then.  Thus Richard de Sifrewast, prosecuting Robert of Pinkney in 1212 for failing to observe the terms of a fine over property in Buckinghamshire, claimed to be owed a third of the service of a knight’s fee, including 8s. 10½d. for scutage from the previous year’s expedition into Wales, which had been levied at the rate of two marks – 26s. 8d., or three times the sum claimed by Richard.52  20s. per fee was a convenient figure for scutage, but in 1215 it may also have still seemed to be the proper one.  In the second decade of the thirteenth century a scutage set at such a rate would still have been insufficient to pay for a serious military undertaking, and if 20s. per fee was indeed what the draftsmen of Magna Carta had in mind, they would certainly have been aware of this.  It might have allowed a king to launch a campaign, or have supported the fighting of a campaign once launched, but by itself it could never have supported both preparation and fighting, as John himself, as well as the barons, must have understood – the fact that Clause 12 would have seriously impaired the king’s ability to wage war as and when he wished was no doubt an additional reason for its failure to survive into later reissues of Magna Carta.

Article 32 had required the same consent for tallages and aids on London and other boroughs as for scutages and aids generally, and since Clause 12 spoke only of aids taken from London, it has been argued that the city obtained less than it had hoped for, and remained liable to be tallaged at the king’s pleasure.  As things turned out, that was indeed what happened, but it is not certain that in 1215 the barons deliberately betrayed their allies in the capital.  The demand that tallages on other privileged cities and towns should be made only with consent, although it must have been eagerly sought by communities hit by the nationwide levy imposed at punishing rates in 1210,53 was successfully resisted by John, who was able to ensure that they continued to be treated as part of the royal demesne, and thus tallaged at pleasure.54  London’s position in Clause 12, which gave it a measure of protection, is not without ambiguities, perhaps deliberately so - the barons may have hoped that unclear distinctions would remain opaque in ways the city could exploit, as they themselves tried to turn uncertainties to their own advantage. 

The Londoners had made payments to King John under a variety of names.  In 1206 the collection of tallages there was giving rise to internal conflict,55 but a year earlier the city had paid the king £600 in aid of his planned expedition to Poitou – ad auxilium nostre transfretacionis.56  A payment of 2000 marks in 1211 was euphemistically recorded as a `gift’,57 another of the same amount in 1214 was unequivocally called a tallage.58  In 1215 the Londoners had good reason to want their contributions to the royal treasury to be made only subject to consent, with the levy of 1207 apparently furnishing a precedent for this having happened.  The closeness of tallages to aids had previously been such that the two could easily appear synonymous, and since it appears to have been only in the 1220s that tallage came to be decisively associated with unfreedom, and seen as a tax arbitrarily imposed by lords on their serfs,59 it may have been the opening up of a clear distinction between tallage and aid which came to be made after 1215 which left the Londoners openly exposed to royal demands, demands from which they only secured their freedom in 1340.60  Ironically, the closer definition of an aid made by Clause 12 may have worked against the interests of at least some of those whom it was intended to benefit.  In other respects its effect was no less paradoxical.  Clause 12 was dropped from later reissues of the Charter, to be replaced after 1217 only by a stipulation concerning the rate of scutage.  Perhaps that was all that was necessary, since scutages continued to be taken by later kings.  Otherwise the Clause’s `message’ survived intact.  The three occasions it specified for the taking of aids remained in force, and John’s successors only took aids after first obtaining the consent of the magnates.  On that last issue, in particular, it would appear to have expressed a need which was so powerfully felt that it did not have to be written down to secure acceptance.

Citation

The city, the clause and the crown

Clause 13 of Magna Carta originated as the last section of no. 32 of the Articles of the Barons, which is placed in a small group (31-33) implicitly or explicitly devoted to the interests of London.  The first section of the Article, which was of very wide significance by virtue of its being concerned with the imposition of the levies known as scutages and aids, acquired a London connection through the sleight of hand which attempted to have the tallages and aids which were imposed on London and other towns treated in the same way as scutages and aids demanded from individuals, and made only with the consent of those involved.  However, tallages were entirely arbitrary levies which were traditionally imposed by lords on serfs and townsmen, and moreover had no intrinsic connection with aids.1  The demand was probably strongly resisted by the king, and perhaps not very warmly supported by the barons, and for that reason, and also because it lacked inherent authenticity, the Londoners were unable to insist on its inclusion, so that it was ultimately abandoned.

The first part of Article 32 became what in its conventional numbering is Clause 12 of Magna Carta, and was placed among a number of clauses dealing with financial impositions and the issue of consent, where it concluded by giving London (but no other town) the right to consultation where aids were concerned, and made no reference to tallage.  The security of the present-day numbering of the Charter’s clauses is not always certain, however.  It is possible that this award to the capital is misplaced at the end of Clause 12, and that originally it formed the first part of a Clause 13 entirely made up of concessions to London, while the second sentence of what is now Clause 13, in which a phrase from Article 32 relating to aids and tallages has been adapted so as to extend the rights of London to all other privileged urban communities, initially constituted a discrete clause, its opening signalled by the word `Moreover’ (Preterea).2  Against this, it could be argued that since Clause 12 was essentially concerned with scutages and aids, the treatment of aids upon London was perfectly reasonably included in it.  Moreover, Clause 13, as conventionally represented, had sufficient coherence to enable it to survive largely unchanged in subsequent reissues, whereas Clause 12 was entirely abandoned within a year.

Whatever its original content, the placing of what has come to be accepted as Clause 13 is of interest.  It would have been logical for it to have been returned to the original position of Article 32, between the articles which became Clauses 41 and 42.  That this did not happen may simply have been because a final decision as to how Article 32 should be treated was taken too late to allow the necessary reorganisation of the Charter as it took its final shape.  But the advanced placing of the clause may also have been intended – and in this context it would have made no difference where Clause 12 ended - as an acknowledgment by the barons that the city’s support was crucial to their cause.  The fact that London alone among English towns was to enjoy the benefits of consultation when an aid was taken made the same point.  It may be an additional pointer to the city’s perceived importance that it was referred to in Magna Carta as a corporate entity, with an existence, and presumably standing, which could be separated from those of the people who lived there.  Whereas the charter which King John had granted to London little more than a month earlier was conventionally addressed to its citizens, described as `our barons of our city of London’, Magna Carta referred to London as an objective entity, comparable to `the Church’, or even to `the realm’, which in Clause 14 could be regarded as capable of `common counsel’.  Other urban communities were referred to in the same terms, but because they were not named they remained in London’s shadow.

London’s importance was certainly such as to justify special treatment in Magna Carta.  Three other clauses (33, 35 and 41) are to at least some extent concerned with its interests and special place in the realm, and indeed, apart from the honours named as examples in Clause 43, and Runnymede and the neighbouring townships mentioned in the dating clause, it is the only place referred to as such in the entire text.  Its citizens had claimed a king-making role in 1135,3 and even before then London had been developing rights of, and claims to, self-government, initially recognised in a charter of Henry I, which among other privileges granted the city its feefarm, that is, the right to account at the exchequer for revenues traditionally owing to the crown, at a fixed rate and through officials of the citizens’ own choice.4  The feefarm was withdrawn by Henry II,5 however, who firmly controlled the city’s aspirations, though at the same time he indirectly promoted them through financial exactions which forced corporate action and organisation upon it, making it essential for London to develop the machinery needed to assess and collect the money he required of it at regular intervals during much of his reign – not only did he exact an annual payment, a `farm’, of nearly £550, but between 1155 and 1177 a total of £4780. 16s. 8d. was demanded from London in a series of aids and `gifts’.6  In the last twelve years of his reign, possibly influenced by the city’s loyalty to himself during the rebellion of 1173/4, Henry briefly cut the annual `farm’ by half, and he also looked elsewhere for ready cash, especially among the Jews.  But the respite did nothing to deflect the Londoners from their pursuit of greater independence, and in 1191 they exploited a political crisis arising from Richard I’s absence on crusade to obtain from the future King John the grant of a `commune’, giving them the right to associate for the purposes of self-government.  The first mayor appeared shortly afterwards.7

When Richard returned to England in 1194, he granted London a charter confirming it in the rights it had enjoyed under his father.  He neither suppressed the commune nor gave it formal recognition, but thanks to a `gift’ of £1000, ostensibly `for the king’s good will and for the preservation of its liberties and for its contribution to the king’s ransom’, he appears to have acquiesced in its existence.8  A further gift of 500 marks in 1196 no doubt helped persuade him to continue doing so,9 assisted, perhaps, by the consideration that by this date there were strong links of mutual advantage and necessity joining the king to the city which was now coming to be seen as England’s capital.  For London, the king was both the source and the guarantor of its privileges, while the needs of his court, when he was in England, acted as a powerful stimulus to the city’s trade and thus to the development of its prosperity.  For the king, the wealth of London, along with his ability to draw upon it, constituted one of the principal elements among his fiscal resources.  The long mayoralty of Henry FitzAilwin, from about 1194 to 1212, probably owed much to his recognition, and promotion, of these shared interests, which were similarly upheld by the king’s government in 1196, when the justiciar, Hubert Walter, took stern action in defence of the city oligarchy against the protest movement led by William FitzOsbert.10

Strains and pains: London and King John

London’s relationship with King John was ambivalent from the first.  On 17 June 1199 the new king, no doubt aware of the value of the city’s backing at the outset of his reign, granted it a charter confirming that of Richard I.11  But there was a background of unease to the transaction.  The price was the high one of 3000 marks, and there seem to have been reservations among the Londoners about paying it, for when the charter was drawn up `it was handed over to Geoffrey fitz Peter [the justiciar] on condition that if they are willing to give those three thousand marks they will have their charter, but if not they will not have it.’12  The citizens may have hoped for a repetition of the benevolence which in 1191 had helped them to win their commune, and misguidedly expected John to give them their charter for nothing.  Or perhaps there were uncertainties which needed to be resolved as to whether, and how, this large sum was to be raised.  The Londoners soon resolved to meet the king’s demands, however, and an elaborate organisation was set up to raise the money, based on the wards but with a central chest, with contributions being demanded in proportion to their wealth from all who had rents or chattels worth more than 12d.13  By 1203 all but £13. 17s. 5d. of the proffer had been paid,14 and in the same year John spoke fulsomely of his relationship with London, in a letter about the treatment of Jews in the city: `We have always loved you much and have caused your rights and liberties to be well observed, wherefore we believe that you feel a particular love for us, and are willing to promote those things which tend towards our honour and the peace and tranquillity of our land ...’.15

There may have been less affection towards the king in the city than he supposed, however.  A year earlier the citizens had undertaken to pay the king £40 for the suppression of the weavers’ gild, which had originated before 1130 and paid £12 yearly into the treasury – no doubt its existence was regarded as detrimental to the authority of the commune.  John accepted the deal, and the money was paid in 1205, but either the weavers objected or the king came to have doubts, for when he issued his charter abolishing the gild he sent it to the justiciar for implementation, along with a copy of what was probably his first charter of 1199, with instructions that the former was only to be put into effect if it was consonant with the latter.16  Probably the citizens had claimed that the existence of the weavers’ gild was discrepant with the privileges which John had recently granted them.  The claim would seem to have proved untenable, for the weavers were able to make an agreement of their own with the king, whereby they raised their annual payment to £20 and retained their gild.  The episode may well have fostered suspicions on both sides between the king and his capital.

In 1204 the citizens of London agreed to pay 1000 marks pro fine passagii, presumably as commutation of some kind of service in or to Normandy, and in the same year they seem to have been persuaded to offer the king a New Year’s gift of £100,17 though they never actually paid it – although it was nominally made annually, they owed £300 by 1207, at which point the debt was pardoned at the suggestion of the justiciar.18  Then in June 1205 they paid £600 into the king’s chamber, as their contribution to that year’s expedition to Poitou.19  There is also evidence that John was taking tallages from the city around this time, though not for the sums involved.  On 4 February 1206 letters patent addressed to `his barons of London’ expressed the king’s concern that the city was suffering greatly from the misconduct of certain leading citizens (superiores) who had been responsible for the assessment, collection and payment of tallages, and suggesting that the proceeds of such levies, which had been paid by `the common people of your city’, had been sticking to these wealthy men’s fingers (a charge often made against members of the ruling classes in medieval towns and cities).  To uphold both the king’s honour and right, and the common advantage of the city, and to prevent internal dissension, twenty-four well-qualified men were to be chosen by whom the necessary reforms could be made.20

Although it is not known what action followed, the oath taken by the chosen twenty-four survives, and in its professed concern for `the right of the lord king which belongs to him in the city of London’, combined with concern for the preservation of the city’s liberty, it closely matched the terms of the king’s mandate for their appointment.21  Similarly the oath’s stress on the incorruptibility of the twenty-four, who were to swear to receive neither gift nor promise, was highly relevant to the inquiries they were to make into financial malpractices.  The oath has been perceived as shedding important light on the constitution of London in the early years of the city’s self-government,22 but in fact its application was administrative and temporary.  It is likely, indeed, that in ordering investigations John was looking back to the populist agitation of William FitzOsbert in the mid-1190s, which had been directed against very similar issues.  But the principal significance of the commission and the oath lie in the evidence they provide for John’s having taken tallages from the city, even though their issues went unrecorded on the pipe rolls, for the discontent they aroused, as much against the manner of their collection as against the taxes themselves, and for the steps he was willing to take in order to maintain his position there.

In the years after 1206, however, it became increasingly apparent that his revenues and rights meant more to John than the city’s good will.  Although the king was slow to make new demands – 200 marks for quittance of the customs levy of a fifteenth, agreed in 1206, were not paid until 121123 – London came under steady pressure from the exchequer to pay off its old debts, starting with just over £250 in 1207 from the arrears of the fee-farms of the last seven years.24  A year later the citizens accounted for amalgamated debts totalling just over £1500,25 all of which were paid during the three years following.  No sooner had the last of those debts been cleared than London had to find a further 2000 marks for a `gift’ to the king,26 a sum paid that same year (£200 were paid into the king’s chamber, as a total of £1000 from earlier debts had been, raising the possibility that this was where the money raised by unrecorded tallages had been handed over).  And in 1214 came a demand for another 2000 marks, this time avowedly in the form of an arbitrary tallage, with a tight schedule for payment – 500 marks were to be paid at the quindene of St John the Baptist (8 July), and 500 at the feast of St Peter (probably 1 August), while the rest was to go towards paying the king’s debts to Flemish merchants.27

Meanwhile in 1212, perhaps in July, a fire broke out in Southwark which spread north across the river, devastating London Bridge and causing widespread damage in the city, while the death in September that year of Henry FitzAilwin, the long-serving mayor of London, may have created something of a power vacuum in the city – his successor, Roger FitzAlan, does not appear to have been a man of comparable stature.28  But at this critical juncture John made no attempt to win gratitude or support within London (the tallage of 1214 can certainly have earned him neither), apparently preferring instead to rely on armed force. Payments in 1212 and 1214 to the garrison in the Tower and for the safe-keeping of the Thames29 probably originated in the threat of a French invasion in the former year, but as this danger was temporarily eliminated by the destruction of the French fleet in May 1213, they may also reflect the king’s determination to retain control of a city now perhaps showing signs of instability and discontent.  Only in 1215, however, does the king seem to have become fully aware that neither the loyalty nor the defensibility of his capital could be taken for granted.

1215: London changes sides

John seems to have expected the barons to make for London, and may even have hoped they would do so, so providing him with an opportunity to inflict a decisive defeat upon them.  Perhaps he envisaged his enemies as advancing upon London, only to be trapped against its well-defended walls by his mercenary troops coming up behind them, and then forced to choose between abject surrender and utter destruction.30  It would have been in accordance with such a strategy that on 2 May 1215 John granted the new mayor, Serlo the mercer, timber from Havering park for the strengthening of London’s defences, and two days later ordered the exchequer to give Serlo 200 marks for the same purpose,31 while on the 10th he ordered that a wall be made `in a hurry’ between the Tower and the city wall32 – perhaps it was intended to command the approaches to the Postern Gate, immediately to the north of the Tower, in case the barons attempted to force an entry there.  Such was the haste that the wall had to be made of earth, at a cost of £12.33  It was probably at around the same time, and with the same sense of urgency, that the citizens set about raising money `to enclose the city’, perhaps by completing, or deepening, the ditch, 200 feet wide, which they had begun to make round London in 1212.34  Payments for this latest work were to be made immediately, or by the following Sunday at the latest, and even foreign merchants were expected to contribute.35

Since these civic works were described as undertaken `at the request and with the assent’ of the king, who was given two barrels of wine between 8 and 10 May by `our barons of London’,36 it would appear that John still had supporters within the city, and probably remained confident of its support.  The barons, for their part, can hardly have been ignorant of the risks which an outright attack on the capital would entail, and they, too, must have come to believe that they could count on being admitted to the city, though it is not entirely clear when and how they did so.  After failing to capture Northampton castle, they moved south to Bedford, where they were welcomed by William de Beauchamp.  It was only at this point, according to Roger of Wendover, that they were approached by messengers from London, urging them to come with haste.37  Ralph of Coggeshall, who speaks of conspiracy through intermediaries, suggests more extended contacts, and adds a significant detail in recording the approach of the earl of Salisbury to the city.38  John, who had himself been in London as recently as 9 May,39 had at last become aware that there was serious disaffection in his capital.  He wrote to the mayor and citizens from Marlborough on the 16th, telling them that he was sending the earl (who was also his own half-brother) to them, and that they should follow his instructions,40 while a day later he wrote again, saying that William of Cornhill, bishop of Coventry, a trusted adviser of he king and also a member of a prominent city family, and Hubert de Burgh were also on their way.41

Hubert was an experienced and capable soldier (he had held the castle of Chinon against French forces for a whole year in 1204-5), and had he been inside the city when the barons arrived before it, there can be little doubt that they would have faced strong resistance.  But John had responded too late to the threat to London, and his emissaries failed to reach the city in time, whereas the barons seized their opportunity.  Going east to Ware, they turned south down Ermine Street, and arrived before London on the morning of Sunday the 17th (having marched all night, according to Wendover).  The chroniclers differ in their accounts of what followed, but agree in describing the city as only nominally defended: according to one account, the barons found the gates shut but unlocked;42 another records that the gates were standing open while the citizens attended mass;43 while a third describes soldiers scaling the walls with ladders used by workmen who had been repairing the defences, and then opening the gates from within.44  From the fact that the barons were said to have demolished houses belonging to Jews and used the stones to strengthen the walls,45 it would appear that work on the latter was still incomplete; as it was, John’s precautions were now turned against him. The barons arrested the king’s supporters in the city and took their goods, and they also set guards on the gates and walls.  Early in June they tried to capture the Tower as well, but without success, and for the time being it remained under the king’s control.46

It is hardly possible to overestimate the importance of the fall of London to the king’s enemies.  Without its resources, and – of even greater value – without the refuge afforded by its walls, the barons were effectively doomed to defeat whenever the king brought all the forces at his disposal into the field against them.  But with London on their side, the barons were able to demand concessions which the king was in no position to refuse, at least in the short term.  John saw this as clearly as anyone.  Fully aware that the Londoners had hardly tried to offer even a show of defence, on 18 May he described them as having acted `of their own free will’ (spontanea voluntate) in surrendering the city, and two days later he gave voice to his fury and outrage against them for their `dishonest and treacherous’ desertion of him by ordering his subjects to treat them as his enemies and to do them every possible injury.47 His response can only have hardened the citizens in their resistance.  According to Matthew Paris, John had come to be hated in London, for impoverishing them in breach of their ancient rights, and tallaging them as though they were the lowest form of serfs,48 while Roger of Wendover offered the more nuanced judgment that it was the rich men of the city who supported the barons, so that the poor feared to complain against what had happened.49  Perhaps John’s action against the superiores in 1206, reinforced by the impact of later exactions which perhaps fell more heavily than usual on the governing classes precisely because they now hesitated to pass them on to those beneath them, had alienated the well-to-do of London, while the city poor lacked the strength to provide the king with any compensating support.  But although material considerations must indeed have carried much weight among the citizens who sided with the barons in 1215, there were other, less tangible, forces at work which may also have influenced their behaviour.  An early thirteenth-century text of the Leges Edwardi Confessoris, identifiably of London origin, contains interpolations which identify kingship with justice, call upon the king to rule with the counsel of the chief men of the realm, and postulate an unmistakeably urban scenario for action against injustice and bad government, with the bells (`motbele’) being rung and assemblies (`folkesmoth’) convoked, so that measures can be promoted `to repress the insolence of evildoers for the utility of the kingdom’.50

The barons manifestly shared the reservations expressed in the interpolations over the uninhibited exercise of royal power, and they may well have been influenced, too, in their attitudes and aspirations by the corporatism which found expression in London’s commune and the privileges granted to many other towns and cities.51  It has also been suggested that the committee of twenty-five established to oversee the observance of the Charter was influenced in the number of its members by the council of twenty-five discreet men who according to the London chronicler Arnold FitzThedmar were elected in 1201 to assist the mayor in the government of the city.52  But FitzThedmar was writing over fifty years later, and since no other source makes any mention of this council, its existence, or at any rate its continuance, must be regarded as doubtful.  In fact there is no evidence that in their early negotiations with King John, undertaken before they gained control of the capital, the barons gave any thought to the interests of London, or of towns in general, even though Robert FitzWalter, one of their leaders, was lord of Baynard’s Castle, in the city’s south-west corner (it was demolished on the king’s order after Robert’s outlawry in 1212),53 and himself engaged in trade.54  There is nothing relevant to London in the `unknown’ charter, for instance (which may have implications for its date).  The clauses in Magna Carta which addressed the interests of London must have been there because they were demanded by its citizens, once they were in a position to influence its composition.

Expectations and rewards

What the Londoners wanted is shown by a list of nine demands which seems to date from this time, and may have been drawn up shortly before the barons took possession of the city, perhaps even for presentation to both the king and his adversaries.55  Two of the clauses were addressed by John.  As noticed above, he took steps to strengthen the city’s defences (no. 6), and in a charter of 9 May, in which personal pronouns were deliberately employed to stress his own association with the Londoners, he granted `our barons of our city of London’ the right to elect their mayor each year (no. 8), and to remove him, if they so wished, at the end of the year and choose a successor – perhaps the extended tenure of Henry FitzAilwin had aroused discontent in some circles.56  The Londoners had demanded that the election take place in the folkmoot, and that the mayor `should first swear’, probably meaning that he should declare that his primary allegiance was to the interests of the city.  John countered this by requiring that each new mayor should be presented to himself (or to the justiciar in his absence), and should swear fealty to him.  It seems unlikely that this elaboration on their demand for the mayoralty was objectionable to the city, but the rest of the charter must have been a disappointment there, for John confined himself to a generalised confirmation of London’s existing liberties, one that was qualified, moreover, by his reserving the rights of his chamberlain (salva nobis chamberlengeria nostra), which meant that he would retain the right to exploit the city’s commerce whenever he saw fit.

The relatively meagre extent of his concessions in his charter of 9 May constitutes further evidence for John’s complacency with regard to the loyalty of London.  Its citizens had hoped for more, and on the evidence of Magna Carta, the barons were willing to provide more, even though they did not, in the end, give the Londoners everything they sought.  The call for the abolition of evil tolls and customs (no. 2), and for foreign merchants being able to come freely to England (no. 8), formed the basis of Clause 41, but the demand that the Thames should be absolutely and wholly the city’s (no. 1) was reduced to Clause 33, commanding the removal of fish-weirs.  And although the insistence that tallages be levied only `by the common assent of the kingdom and the city’ (no. 3) formed part of no. 32 of the Articles of the Barons, albeit with the small but important difference that tallages and aids on London and other towns were to be imposed only `by the common counsel of the kingdom’, with no special voice being allowed to the city, London’s claim to special treatment in this matter was scaled down to cover only aids.  Three demands, for the abolition of unlicensed parks (no. 5), the re-instatement of the exchange (no. 4), and the right to distrain upon debtors (no. 9), were not addressed at all.  The first of them, concerning parks, must have arisen from the hunting rights enjoyed by the Londoners, which according to Henry I’s charter extended into `Chiltern and Middlesex and Surrey’, while William FitzStephen described them as encompassing Hertfordshire and a part of Kent as well.57  Probably these led to friction with, and then enclosures by, landowners over whose estates the citizens had become accustomed to pass in their pursuit of game.  The demand for the old exchange is puzzling, for despite reforms arising from the recoinages of 1180 and 1205, London’s mint and exchange had consistently remained open, unlike those in most other towns58 – perhaps it was the crown’s tight control of operations and proceeds which the citizens objected to.  As far as the collection of debts was concerned, however, in demanding that `if debtors or their fellow-citizens (vel sui) come in the city, they may be distrained’, the Londoners had a clear precedent to refer to, for Henry I’s charter had licensed them to distrain for unpaid debts not only on debtors and their sureties, but also on other members of the debtors’ communities.  This privilege was not repeated in subsequent royal grants, possibly because although the practice in question was a widespread one, it was also much resented, and a number of towns obtained exemption from it.59

More generally, such issues may have been too specifically London-oriented to make Magna Carta the appropriate place for their remedy, if, indeed, any remedy at all was thought necessary.  Instead Clause 13, like King John, fell back on a general confirmation of the city’s liberties, rather more succinct than the king’s, and - crucially - omitting any reference to the chamberlain.  It might seem surprising, given the city’s importance to the barons, that the Londoners were given so little at this point in Magna Carta – a vague concession on aids, nothing on tallage, and a confirmation of liberties which was extended to all other towns.  But that confirmation had a wider application, in that Clause 13 made an overt declaration, in the context of a document addressed to all the free men of the kingdom, that London had rights which merited protection, and also gave public expression to the city’s leading position within the realm, one that was enhanced, moreover, by its mayor’s inclusion among the twenty-five barons responsible for the observance of the Charter.  Since the other barons were territorial magnates who could expect to impose tallages on their own tenants, urban as well as rural, perhaps it was unrealistic to expect them to support London’s claim to consultation.  The Londoners probably did as well as could reasonably have been expected in the circumstances, and well enough to cause them to remain in alliance with the barons.  John was naturally determined to recover the city if he could, and probably shortly after Magna Carta was issued he negotiated an agreement with the barons, under which the city was to remain in the hands of the latter, while Archbishop Langton would take command of the Tower, `saving to the city of London its liberties and its free customs’ (surely a deliberate echo of Clause 13), until oaths had been taken throughout the country to obey the twenty-five barons, and the king had given the redress demanded of him under the terms of the Charter.  If this had been done by 15 August, then both the city and the Tower were to be returned to the king, otherwise both were to stay under their existing controls until these conditions had been met.60

It was never likely that they would be, and already at the end of June there were rumours of an impending attempt by the king’s men to recapture the city by force.  For their part, the barons remained fully aware how crucial their hold on London was to their own safety.  As Robert FitzWalter, writing to William d’Aubigny at this time, observed: `You know well how great an advantage it is to you and to all of us to preserve the city of London, which is our place of refuge; and how great a shame and loss it would be to us, if by our own incompetence we were to lose it ...’.61  They did not do so, rather London stayed loyal to the baronial cause, and fell under the ban of the church as a result.  On 5 September 1215 papal delegates instructed Archbishop Langton and his suffragans to excommunicate rebels against the king, with the Londoners foremost among them, while on 16 December the pope himself ordered that John’s enemies, including `those citizens of London who were the prime movers in this wickedness’, should be excommunicated, and an interdict was laid upon the city as a whole.62  But the Londoners ignored these fulminations, claiming, according to Wendover, that secular affairs were none of the pope’s business.63  Their prominence thereafter among the king’s adversaries was such that the mayor and other citizens were included among the baronial representatives appointed for abortive peace negotiations in November 1215,64 and when John looked like attacking the city in the spring of 1216, it offered so belligerent a show of resistance that the king withdrew.65  The Londoners swore fealty to Prince Louis after he entered the city in May 1216,66 while five leading citizens, headed by the mayor (now William Hardel), lent him 1000 marks.67  The city’s alliance with Louis and the barons endured until the end of the civil war in 1217.

Urban rights and the exploitation of towns under King John

London may be said to dominate Clause 13, as it did English urban life, but it was not the only town whose interests were affected by it.  In article 32, the treatment of London with regard to tallages and aids was granted to `other cities which have such liberties’, but in Clause 12 nothing was said of places besides London, which alone among towns and cities was to benefit from the common counsel of the realm when an aid was demanded.  Instead the general confirmation of London’s liberties in Clause 13 was given a wide extension to `all other cities, boroughs, towns and ports’.  In part this may have been no more than a further compliment to the capital, emphasising its leading position among England’s urban communities, several of which had in fact been granted London’s privileges.  In 1189, for instance, Richard I granted Northampton the liberties and free customs of London, and in 1194 he did the same for Lincoln.68  But since many other towns and cities had suffered from John’s attentions, there was probably an issue of principle behind the decision to include them all among the beneficiaries of the Charter, as well as the hope of political advantage for the barons (who might have boroughs of their own, even of their own foundation).  John’s mobility had doubtless made him an unwelcome guest in many places, but his dealings with English towns are most easily observed in the charters he gave and the money he exacted.  The two often went together.  It was common practice for a new king to insist that the charters of his predecessors be confirmed by himself, in return for fines paid by their beneficiaries.  London itself bought a new charter, and so did many other places.  In 1199 Norwich agreed to give 200 marks for a charter of confirmation, and then like London was made to wait to receive it, for the charter was entrusted to the archbishop of Canterbury, who was ordered to keep it until the money was paid.69

New charters, of course, had to be paid for, even when their terms included an increase in the feefarms of the towns involved.  Derby in 1204 gave forty marks and two palfreys for the privilege of paying a feefarm which was £10 per annum higher than the previous one;70 Shrewsbury and Huntingdon made similar payments, and on the same terms, a year later.71  Towns which fell into debt to the king and lost their privileges as a result might have to add to their burdens in order to recover their rights.  In 1208 the burgesses of Southampton gave forty marks and two barrels of wine to have their liberties back, on condition that they paid all their debts to the king within a year.72  Winchester seems to have been treated in the same way.73  The fact that a town or city enjoyed rights granted by royal charter was no guarantee against its having to pay for them again.  In 1199 the citizens of Gloucester gave 200 marks `for having the same liberties as the citizens of Winchester have’,74 and then in 1206 they gave a further fifty marks and a palfrey `for having the town of Gloucester at farm as they used to, according their charter which they have from the lord king.’75  In 1213 the burgesses of Exeter offered the king six palfreys, worth £20, to be quit of lastage (export duties) and stallage (payments for market-stalls) `according to the sense (tenor) of the lord king’s charter which they have ...’ – the barons of the exchequer were instructed to use their judgment as to whether the offer should be accepted, raising the possibility that Exeter might have had to give more.76

Medieval burgesses suffered from ambiguities and uncertainties of status.  The fact that a town needed a grant of privileges to exist left it vulnerable to the demands of the grantor -  and never more so if that was the king - who would usually retain important rights of control over the community that he, or his forebears, had created.  The fact that those rights, and especially that of tallage, often took an arbitrary form, was not regarded as being in itself sufficient to invalidate them.  A king like John took what he could, as his need dictated and opportunity arose.  In 1200 the citizens of Lincoln paid 300 marks for a new charter, and just a year later had to give a further 700 marks, along with seven palfreys, to have the liberties which the king had so recently confirmed and to be cleared of an appeal of felony.77  In 1201 the king himself sued the townspeople for 102 marks which he claimed they owed him for a tallage,78 and their defence, that they only took tallages with the consent of the citizens, was clearly unsuccessful, since a `gift’ in 1202 was followed by a tallage later in that year.79  A few years’ respite was broken by a 200 mark amercement imposed at an eyre held late in 1208, followed by a 500 mark tallage in 1210.80  A year later an unidentified transgression cost the citizens 2000 marks, while a default which led to the city’s being taken into the king’s hand had to be redeemed partly in cash - £200 – and partly in cloth – 100 ells both of scarlet and of `good green’.81  By 1213 all but £45 of the first sum had been paid, but the mayor now had to raise a further 500 marks `for having the king’s benevolence’, with the whole city acting as guarantor.82  The king’s good will was evidently soon forfeited.  It did not prevent a further tallage of £500, seemingly to mark the end of the interdict,83 while in February 1216 the barons’ occupation of the city in the previous year probably supplied the justification for the exaction of a further £1000 from the townspeople.84  The much smaller and poorer city of Carlisle was tallaged at £20 in 1202 and £40 in 1214, with in-between the startling figure of 541½ marks (£361. 13s. 4d.), six times the city’s annual farm for which the sheriff accounted at the exchequer, in 1210.85  Unsurprisingly, the citizens opened their gates to the barons’ ally, the king of Scots, in 1215, `as King John had done them many injuries’.86  It seems reasonable to suggest that Clause 13’s sweeping confirmation of urban liberties and customs constituted an implicit rebuke to exactions like these, and that it also, and by extension, represented a significant stage in the process whereby English towns found a place defined by law within the larger community of the realm.

Citation

Taking counsel

Clause 14 is the necessary corollary of Clause 12 of Magna Carta, laying down how the financial exactions which were brought under control by the latter should be levied in future.  That it has no equivalent among the Articles of the Barons seems less likely to have been the result of oversight than a reflection of the uncertainty among the barons as to how fiscal affairs which had hitherto been largely or wholly controlled by the king should be treated, an uncertainty perhaps shown in Clause 12 by the imprecision of its demand that conventional aids should in future be `reasonable’.1  The issues dealt with by Clause 14 had probably still been under discussion when the Articles were drawn up.  Clause 12 ordered that scutages and `extraordinary’ aids were to be taken only `by the common counsel of our kingdom’, meaning that they were first to be discussed, and assented to, by the great men of the realm.  Clause 14 reinforced that stipulation by defining how that assent was to be obtained, and from whom, and in doing so underlined the extent to which the magnates envisaged for themselves a role in the levying of taxes which went beyond merely deliberating upon what the king proposed.  For scutages, at least, the `Unknown Charter’ had suggested a fixed rate of one mark (13s. 4d.) per fee.2  Clause 14 did not attempt anything like this, rather it postulated active involvement by the barons in proceedings at which proposals for taxes, presumably for purposes and at rates which the king proposed, were debated and appraised before they were imposed, and – by extension - might even be rejected altogether.

Following the disappearance after 1162 of danegeld, which had been imposed many times by Anglo-Saxon and Anglo-Norman kings, the re-emergence of what may be called general taxation, levied nation-wide and at regular intervals, was a development of the late twelfth century, starting with the `Saladin tithe’of 1188 – Henry II had otherwise taken only seven scutages in a reign of thirty-four years, along with an aid for his daughter’s marriage in 1168, and usually preferred to raise money by other means.  Richard I’s reign saw more frequent and heavier demands, above all for the king’s own ransom, but also to pay for continuous warfare overseas, mostly in Normandy, and these in turn intensified under King John, whose scutages, in particular, were so numerous (eleven in seventeen years) that by 1215 the barons must have been contemplating the prospect of a series of yearly assemblies to discuss them. 

The issue of consent to these exactions was addressed in Clause 12, which laid down that aids and scutages were only to be taken by `the common counsel of our kingdom’.  Counsel was in fact fundamental both to that clause and to Clause 14.  It was one of the most important services which a lord could demand from his men.3  The ability to give good counsel was a virtue which carried as much weight as military prowess in the chivalric world, and constituted one of the defining characteristics of that world’s ideal figure, the preudomme, the soldier whose abilities as a man of affairs enabled him to flourish above all in the courts, as well as in the armies, of kings.4  The worldly wisdom which made the advice of the preudomme worth having was essentially an acquired virtue.  For the magnates – few of whom were likely to deny also being preudommes  –a capability for giving counsel to monarchs constituted an inherited, even innate, quality which arose from their rank.  On either ground they expected to be asked for their advice over matters affecting themselves and the kingdom which they saw themselves as representing, and they also expected their advice to be heeded.

As far as the procedure for granting them was concerned, Clause 14 probably demanded much that was familiar, and in theory, at least, uncontroversial.  Attendance was perceived in terms which would once have been defined as `feudal’, that is, made up of the most important men in the realm, ecclesiastical and lay, who were united in being tenants-in-chief, holding their lands directly from the king.  All were regarded as entitled to be summoned to give counsel, but Clause 14 took cognizance of differences in consequence and power when it distinguished between the `greater’ barons, who were to be summoned individually, and the rest, who were to be convoked through a general summons administered by local officials (it seems reasonable to surmise that the abbots were treated likewise – the heads of great monasteries like Westminster or Peterborough could surely have expected to receive a personal summons, those of lesser houses, places like Buildwas in Shropshire or Darley in Derbyshire, must have learnt what was afoot in their respective county courts).   There was nothing new about the issuing of a twofold summons, it had been standard practice under Henry I, and may even have originated under William I.5  Its being prescribed in 1215 as the basis for grants of taxation may well reflect the pressure which men of knightly rank were now able to exert upon their lords and also, through their growing involvement in local government, upon the king – they knew their own importance, and accordingly felt that they had a right to be involved in fiscal decision-making.  It is strongly indicative of the autocratic character of John’s kingship, however, that either the magnates or the tenants-in-chief who fell short of baronial status, or both, should have found it necessary to insist upon such involvement, and the same is true of the other stipulations in Clause 14 - that at least forty days’ notice was to be given for a gathering at which counsel was to be given, at a specified time and place, and with the reason for the summons being spelt out. 

The less important tenants-in-chief, who could still have been substantial men in their localities, especially if they were also sub-tenants of magnates - honorial barons – would also have been affected by the king’s financial demands, raising the possibility of assemblies at which taxation was discussed being attended by literally hundreds of people.6  This may have sometimes happened in the years after 1215, but probably only on exceptional occasions.  For whereas the magnates might have regarded attendance at a council as an obligation attendant on their rank, lesser men might well have regarded it as likely to be expensive, time-consuming and even unnecessary – when a seventh was imposed in 1203, and the bishop of Salisbury gave instructions that its collection be discussed in the rural chapters of his diocese, he found that barely a tenth of the clergy turned up, and that those who did would not respond in the absence of their more important colleagues.7  The response of the laity may sometimes have been similar, so that the provision of even a rudimentary agenda would have helped lesser men to decide whether they wished to go, and enabled them to lobby their superiors if they chose not to (like the king, the magnates were expected to consult their leading tenants).  And since the proclamation of a summons would presumably have been made publicly, in shire courts, the honorial barons could themselves have been lobbied by their tenants in advance of a council. 

Clause 14’s provision that business should proceed even if not all those summoned were present may simply have been intended to prevent the wasting of time, but was probably influenced by wider considerations, affecting both the king and the barons.  From the point of view of the king, as the summoner and as the person who needed the money which the assembly had been convoked to grant, he had a clear interest in expediting proceedings, so much so that it has been suggested that it was John who secured the addition of this stipulation to the Clause.8  And the king likewise stood to benefit from a provision which would have prevented absentees from refusing to contribute to an aid which had been granted by an assembly to which they had been summoned but which they had not attended.  On the other hand, the obvious possibility that confronted by likely baronial recalcitrance, John might have resorted to delaying tactics, urging that nothing could be done in the absence of, say, the bishop of Winchester or the earl of Arundel, while he made last-minute attempts to pack an assembly with his own supporters, gave the barons equal grounds for insisting on punctuality.  More certainly, the insistence on a fixed time and place, though obviously relevant to the convenience of those attending a council, must have been primarily designed to counteract John’s restlessness, which kept him and his court continually on the move.  But although the clause sheds a revealing light on aspects of the physical character of John’s kingship, its primary focus went beyond that, to the very nature of his governance, of which the advice he was given, and the entourage from which he received it, formed an essential component. 

Formal and informal consultation

As with his father and older brother, much of John’s counsel-taking was essentially informal, and involved a relatively small number of intimates – his familiares – men whose judgment he trusted.  There was no fixed council, he turned to the men at hand whose advice he thought most likely to be useful.9  When in 1213, for instance, he received an appeal for help from the embattled Count Ferrand of Flanders, John called the bishop of Winchester, the earl of Salisbury and others to a council, and then brought in two Flemish exiles, the count of Boulogne and Hugh de Boves, presumably so that they could give expert guidance.10  The council which was summoned on this occasion seems to have been a casual, almost ad hoc, affair, and only a few of the men present at it were named.  Similar gatherings can perhaps be identified by a coincidence of business and attendance, even though no formal council is recorded.  There is no surviving evidence for a council at Westminster on 24 March 1204, for instance, when a dispute between the earl of Leicester and the bishop of Lincoln was settled by a fine made in the presence of Archbishop Hubert Walter (who was also chancellor), the justiciar, Geoffrey FitzPeter, six bishops, five earls, the count of Evreux, William de Briouze, William Brewer, `and other our barons and liegemen’, but the rank of the disputants, and the importance and number of the men in attendance suggest either that a council had been in progress at the time, or that an assembly convoked for some other purpose had been adapted by the king for the performance of what must have been conventional conciliar business.11  

Formal assemblies were undoubtedly held, but it is not always easy to identify them, or to tell who attended them and what business they did.  References in chronicles may coincide with gaps in record sources, and even when they do not, witness-lists from the time of a council cannot be assumed to provide a complete guide to those who were present at it.  The king’s opponents were no doubt less likely than his supporters to be named as attending.  At a council held at Oxford in late March 1205 (discussed further below), for instance, the men known to have been there were almost all the kind of bishops, officials and courtiers who were usually in attendance on John.  His adversaries may not have been called upon to attest the charters he issued at this time, or they may have kept away from the king and departed early.  It is often possible, however, to plausibly amplify the record of attendance with the names of the men known to have been in the king’s company for a few days on either side of a known assembly, since it seems unlikely that everyone who came to a council did so only in order to be present at it, and also by the record of grants and favours bestowed at the time – a council must often have been an occasion at which important men negotiated gifts and rewards, for themselves or their friends and subordinates, in return for their support, especially when the king needed a tax.  Magnates who received benefits at the time of a council probably also attended it.

The business of a council could be highly technical, and this may sometimes have reduced its attendance.  In the spring of 1201, exchequer regulations concerning the payment of debts to the king were drawn up after discussions at Windsor involving the king `and certain magnates of his land ...’.12  John and his advisors probably met on 16 April, when the king is known to have been at Windsor, along with Archbishop Hubert, the justiciar, William Marshal, earl of Pembroke, the bishop of London (William de Ste Mère-Église, a long-serving administrator specialising in exchequer business), William Brewer (also a financial expert), and two others, while when the king moved to Westminster he had three more earls and two other bishops in his company, together with Robert of Thornham, another experienced administrator.13  The ordinance issued at Windsor had important consequences, but it seems to have been discussed by a relatively small number of people, some of them, like the chancellor and justiciar, no doubt present ex officio, or because of their understanding of the workings of the exchequer, but others, notably William Brewer, because they were habitually close to the king and were continually involved in government, in many different capacities, as and when the king ordered them. 

The same was probably true of the ordinance for the reform of the coinage, the so-called `Assize of Money’, which John declared had been drawn up `by the common counsel of our kingdom’ when he sent it to its enforcers from Winchester on 26 January 1205.14  With him at around that time were the earls of Salisbury and Chester, and Roger de Lacy, constable of Chester, otherwise his recorded entourage consisted entirely of courtiers and administrators.15  As well as the archbishop of Canterbury and the justiciar, they included Peter des Roches, the dominant figure in the king’s chamber; Simon of Wells, bishop of Chichester, and Hugh of Wells, later bishop of Lincoln, both of whom served the king, and also Hubert Walter, as clerks in chancery; the justice and sheriff Hugh of Chalcombe; the chamber clerk Walter Mauclerk; and a number of men who served the king as and when he chose to employ them – Peter of Stokes (a steward of the household), Geoffrey de Lucy and Alan Basset.  The abbot of Forde was doubtless there as the king’s confessor.  There seem to have been more men present on this occasion than there had been at Windsor, but their identities and occupations suggest a gathering of professional men rather than any kind of national assembly, as perhaps was inevitable given the specialised nature of the business done.

When the business to be considered at a council had a more obviously public character, attendance could be larger.  Gervase of Canterbury records an assembly of lay and ecclesiastical magnates at London in the spring of 1204, at which it was agreed that an embassy should be sent to negotiate peace with the king of France – it was most likely held sometime between 21 and 29 March, while John was at Westminster, and was probably also the occasion for an ordinance on the rather less pressing subject of the weight of bread in Winchester, described as issued at Easter (31 March).16  Those recorded as having been in attendance on the king at that point would have constituted a gathering very like that at Windsor in 1200, but as the gathering moved towards the south coast - the ambassadors (the archbishop of Canterbury, two other bishops and two earls) all attested a charter at Portsmouth on 11 April, probably immediately before their embarkation – other names appeared among the witnesses to royal charters, notably the earls of Chester, Hertford (or Clare) and Hereford.17  Chester was later a staunch royalist, but in 1204 his relations with John were very strained, while Hertford and Hereford were never close to the king and both ultimately rebelled against him.  Probably they had attended the council – perhaps all the earls were summoned to it – but had not been closely involved in its discussions, and only found opportunities to join the circle round the king afterwards.

In this case the business of the council must have been arranged in advance – the embassy could hardly have been improvised, having decided that the time was right to negotiate with the French, John must have known who he wanted to send as his ambassadors, and made sure of their presence at Westminster (in fact he had totally misjudged the military situation in Normandy, and nothing was achieved).  Further glimpses of organisation are provided by a well-known case heard coram rege in late June 1204.  William Marshal was in dispute with the countess of Meulan and the earl of Devon over the manor of Sturminster, which was then in the king’s hand, and pursued his claim to it when John arrived at Sturminster Newton on his way through Dorset.  The litigants could not agree, and on subsequent days only the Marshal came into court, where he continued to prosecute his case.  John’s response was to take the advice of his entourage: `who, since there were few men with him, nor, as they said, did they often see such a case come up, they advised that the whole case be deferred to the morrow of the Assumption [16 August], when the lord archbishop and other men, magnates and men of wisdom [sapientes] in the land, could be involved ..’.  The Marshal objected, but the king insisted that the status quo should be maintained for the time being.18 

The king was at Sturminster Newton on 27 June, when his recorded companions were the earl of Salisbury (his half-brother), Hugh de Neville, the chief forester, and Warin Fitzgerold, baron of Stogursey, Somerset, and as chamberlain of the exchequer a man often in attendance on the king.  Two other men who were regularly active as royal agents, John FitzHugh and Thomas of Sandford, may also have been present, along with the butler of the justiciar, but not, it seems, the justiciar himself.19  It was not a group likely to be able to offer expert advice on a complicated lawsuit, and it is easy to see why its members should have been anxious to pass responsibility for it to others.  Perhaps it was for the same reason that the Marshal was eager to have an instant ruling, but though he had to wait, he eventually obtained what he wanted.  The council planned for 16 August seems to have been postponed, in favour of an assembly at Woodstock arranged for 5 September,20 when Archbishop Hubert, the justiciar, the bishop of Norwich, three earls (including the Marshal) and a number of administrators were present.21  Several of them served at some point as royal justices, notably Simon of Pattishall, the leading member of John’s judiciary, and no doubt it was on their advice that on 9 September the king ordered the men of Sturminster to obey William Marshal as their lord.

This was not the only occasion on which John took counsel at this time, however.  On 31 August he wrote to the justiciar of Ireland, ordering him to act with regard to the king of Connaught in accordance with a report he had sent him, one which had been approved `by us and our council’.22  The king was then at Geddington, where he had dealt with Irish business on the two previous days.23  The Marshal had come to Geddington with John on the 29th.  As lord of Leinster he was a powerful man in Ireland, and may have been summoned to discussions for that reason, or he may simply have decided to remain with the king until his own affairs were dealt with, in case anything of importance to him was dispatched in his absence – John may have been taking advice in the days before he reached Woodstock, but apparently from noticeably fewer people than he had around him following his arrival there.  The Marshal would have been right to be wary.  Councils could be very formally staged.  An account of an assembly convoked in 1204 or 1205 following the loss of Normandy tells how John called his whole council together and asked them how he should deal with men who held lands both of himself and the king of France and wished to continue doing so, and how the aged count of Aumâle, though crippled with arthritis, was called upon to speak first, because the king had always found him reliable and faithful (loial et feel), and proceeded to give his opinion in carefully weighted words.24  But on a number of other occasions John took advice in a much less punctilious manner.

Coggeshall’s account of John’s dealings with the Cistercian abbots at Lincoln late in 1200 provides a good illustration of how he could operate.25  In his efforts to raise the 20,000 marks which he had agreed to pay the French king under the treaty of Le Goulet, John tried to tap the resources of the Cistercians, who resisted at first, and then made what the king regarded as a totally inadequate offer.  The king’s response was to harass them severely, until they tried to come to terms with him at Lincoln, where John had gone for the interment of the late bishop, Hugh of Avalon, with a large and distinguished retinue.  Coggeshall describes how after mass on 26 November the abbots had abased themselves before the king, begging him to treat them mercifully, and how John had then gone into his chamber with the assembled magnates, with the Cistercians trooping in behind.  But no public debate ensued, for John withdrew into a closet (cubiculum) with just two or three others from among the great men there, for lengthy discussions as to how the Cistercians should be dealt with, and when he emerged he sent for Archbishop Hubert (who had not been one of this select group, perhaps because he had spoken up for the monks) and talked further in private with him, while the abbots continued to stand around in the king’s chamber, before at last the archbishop announced that John was granting them his peace.  On the evidence of royal charters from late November 1200, the king’s advisers on this occasion were probably drawn from a small group made up of the justiciar, the bishops of London, Bath and Glastonbury, and Norwich (John de Gray, who had been in John’s service before he became king and always retained his confidence), William Brewer, Hugh Bardulf and Simon, archdeacon of Wells – royal servants and tried agents of government to a man.26

Similar glimpses of informal counsel, plausible though not given by an eye-witness, are provided by the History of William Marshal.  One describes how in November 1207, when John was staying in Gloucester Castle, the Irish justiciar, Meiler or Meilier FitzHenry, hatched a plot to undermine the position in Ireland of William Marshal and William de Briouze, when `after dinner, it so happened that the King came into his chamber in the company of Gerard d’Athée, of Meilier also, and of all his chief councillors, who liked to advise him ...’, while another records how in 1210, after the Marshal had defended himself against charges of treacherously assisting the fugitive de Briouze, the angry king `went into his chamber and spoke with those present there’, who managed to calm him and persuade him to be reconciled to the Marshal.27  In 1207 the chancellor, Walter de Gray, was at hand to prepare letters for dispatch to Ireland, while the bishop of Norwich, the earl of Winchester, Roger de Lacy, constable of Chester, and Peter FitzHerbert are named as present on this second occasion.  In both cases there were certainly others available whom the king could have consulted,28 but these anecdotes show him preferring to take advice from men regularly found in his entourage – Lacy played dice with the king, while Gray, whatever his official position, was unreservedly loyal to him. When policy could be decided in this way, behind closed doors, in an atmosphere of what can only be called cronyism, and directed, moreover, against one of the greatest of their number, it is easy to see how the magnates should have become deeply distrustful of John’s methods of taking counsel, and of the men who gave it to him, in matters of finance and everything else.

The question of numbers

John’s constant mobility was a further hindrance to the giving of what the barons would have regarded as proper counsel.  His practice of taking advice from the men to hand, who changed continually as he moved from place to place, must have been a further consideration behind the requirement in Clause 14 that meetings at which proposals for taxation were discussed should be held at fixed times and places – only thus could the assembling magnates could be confident that they would outweigh, and outnumber, such of the king’s friends and followers as happened to be with him at any given moment, even though the latter might also be bishops and barons.  As it was, for much of John’s reign councils tended to be short, with business sometimes being rolled over from one session to the next, no doubt to the inconvenience of those attending them.  A whole series of councils appears to have been held in the spring of 1205, dominated by military affairs - there was a danger of a French invasion, and the king also planned to lead an expedition to Poitou.  Thus a confrontational assembly at Oxford, at which the king was obliged to promise to uphold `the rights of the kingdom of England’ (a pointer to the way the magnates saw themselves as embodying those rights), and then the earls and barons swore to perform the service they owed him, can be shown to have lasted for only three days at the most, from 27 to 29 March.  The announcement of a scheme, issued on 3 April, whereby throughout England every nine knights would unite to finance a tenth, well equipped `for the defence of our realm’, presumably resulted from this gathering, which, however, may have been less fully attended than is suggested by the claim that the king was acting `with the assent of archbishops, bishops, earls, barons and all our liegemen of England’.29  One archbishop – Hubert Walter – was recorded as present, along with four bishops and four earls (one of them the justiciar), and a further sixteen men, several of whom were indeed barons (though often through royal patronage), but two were primarily justices, and some – Peter of Stokes, Philip de Lucy, Robert of Ropsley – were essentially government men, of the kind who might be attendant on the king at any time without necessarily attaining any great status by doing so.30  Only the earl of Hertford, William d’Aubigny and Walter de Clifford were rarely found in John’s entourage.  Perhaps they had been among the magnates who had extracted an oath from the king, but who the others were is unknown, and they may well have been cold-shouldered while the subsequent proceedings lasted.

But whoever the king’s opponents had been at Oxford, they, or some of them, must soon have received a further summons to wait upon the king.  Not perhaps for the gathering at Dover at which on 18 April 1205 John announced arrangements for galleys to protect the English coastline, as made `by the common counsel of our barons’31 – in fact only the archbishop, the justiciar, two earls, one bishop and the usual handful of apparatchiks can be shown to have been with the king at this time – but for what must have been a larger gathering planned for Northampton on 22 May, timed to coincide with an army muster – by way of preparation John directed that fifteen barrels of wine be sent there.32  Orders for this council were sent out no later than 29 April 1205 (a good deal less than the forty days notice required under Clause 14).  But around the same time, in what seems to be an example of the confusion which could attend John’s policy-making, no doubt arising from its improvisatory, even impromptu nature, he arranged for another council to be held on 15 May in London.  The bishop of Salisbury was ordered to attend, since the king wished to have his counsel, and that of `the other magnates of our land’, and he was also instructed to arrange for the heads of the religious houses in his diocese to attend.33 

Such provision is fully in keeping with Gervase of Canterbury’s report of a council at London, which was attended by bishops, earls and barons, all of whom swore fealty to the king, and which promulgated -`with the assent of the king and of all the magnates of England’ – detailed regulations for the defence of the realm.34  But the impression Gervase gives of a throng of bishops and barons is hardly borne out by the admittedly scanty record of the men in attendance on the king at this time - a charter for Margam Abbey, issued on 15 May, was witnessed by Archbishop Hubert, the bishop of Ely, the justiciar, the earl of Winchester, and four other men, two of whom had been at the Oxford assembly.35  It is possible that insufficient notice had been given, but no less likely that John was only paying lip-service to the need for consultation, and was only too happy – especially after what may have been a bruising encounter at Oxford - to issue orders for national defence without waiting to receive advice from men he had nominally summoned to give it.  He left London no later than the 18th, and travelling via Ongar and Bury St Edmunds was at Northampton on 21 May.

John did not stay long at Northampton – he left on the 23rd, so if Sidney Painter was right to surmise that the king hoped to use a combination of alcohol and epic romance to befuddle his barons into following him overseas, he must have been quick about it.36  But there was undoubtedly a substantial gathering, perhaps involving people who had been unable to get to the London council in time.  No monastic heads are recorded as attending the king, but the abbot of Peterborough took the opportunity to obtain writs of novel disseisin and precipe for an action against the abbot of Crowland,37 while several other abbots and priors litigated in the court coram rege while it sat in Northampton,38 raising the possibility that they or their representatives had come to attend the council, after failing to gather in London.  Inevitably, the archbishop of Canterbury and the justiciar were present.39  Only one other bishop (Durham) is known to have been there, but in view of the gathering’s likely secular business, perhaps that is not surprising, and the number of lay magnates in attendance was certainly higher than it had been in London, and more distinguished than it was at Oxford, with the earls of Chester, Winchester, Hereford, Huntingdon, Norfolk, Oxford and Warenne, along with the count of Aumâle and important barons like Robert FitzWalter, Robert FitzRoger (lord of Whalton, Northumberland) and William d’Aubigny.  It may have been thanks to a rare effort to make such men feel close to and valued by the king that none of the royal justices attested alongside them, while of John’s usual associates, only Roger de Lacy and (two days after the council ended) Peter of Stokes did so.  What business these men did on this occasion is unknown, however; perhaps the main purpose of the meeting was to plan the forthcoming French campaign, which in the end never happened, since John, for once accepting unwelcome advice, reluctantly allowed himself to be persuaded not to cross the Channel.40

Clause 14 was specifically concerned with the granting of taxes.  The assemblies reviewed so far dealt with other matters, though these were usually likely to be important to the magnates, and indeed often had significant financial implications, making the conditions prescribed for the king’s taking of counsel by Magna Carta no less relevant to other baronial interests.  But in one case it is possible to use the methods employed so far to analyse a major financial imposition.  John returned from a relatively successful expedition to Poitou in December 1206, and immediately set about raising the money needed for his next campaign.  For this purpose, according to the Waverley annalist, a council was summoned to meet in London on 8 January 1207, to consist of `archbishops, bishops, abbots and priors, earls and barons, and the magnates of the kingdom’,41 but possibly only the churchmen attended in any numbers – at any rate the king is said to have addressed himself to them alone - and they refused to cooperate, whereupon the council was adjourned to Oxford, where it was to meet on 9 February.  John was at Westminster on 8 January, and by the 10th he had moved to Lambeth, while on the 12th he was at Reading, when an ordinance was issued, `on our order and by the counsel of our barons’, concerning the price of lampreys.42  Possibly this was all the council had been able to agree upon, but since John’s known retinue at this time was very small, consisting only of the justiciar, the bishop of Winchester, William Brewer and two others,43 he may simply have misrepresented the involvement of the magnates, not for the first or last time.

It is possible that the notice given of the council at London had been insufficient, but it is hard to see that its successor at Oxford was very much better attended.  It, too, was brief.  John arrived a day late, having still been at Farringdon on 9 February, and after spending the 10th and 11th in Oxford he had reached Woodstock by the 12th, and Brill in Buckinghamshire by the 14th.44  Recorded attestations during these days were scanty, but though they may accurately represent the domination of the king’s entourage by his familiares, trusted servants and long-time members of John’s court like Peter des Roches, William Brewer, William of Wrotham and Thomas of Sandford, joined with important agents of government like Eustace de Fauconberg and Gilbert FitzReinfred, they clearly do not fully reflect attendance at the council.  It is inconceivable that the justiciar should not have been present, and a grant made on 9 February, at Geoffrey FitzPeter’s petition and for the love of the bishop of Norwich, surely demonstrates that he was indeed in attendance on the king, probably along with the bishop, as no doubt were the earl of Winchester, on whose behalf a writ was dispatched on the 10th, Robert de Ros, a leading northern baron, the beneficiary of two letters sent on the 11th, and William de Briouze, following whose complaint a letter was sent to the justiciar of Ireland on the 12th.  But although these men added to the numbers at the Oxford council, they can have done nothing to alter its complexion, or to cause it to be any less dominated by men in favour with John and willing, if not positively eager, to serve his interests.

When the council assembled, John once more demanded a grant from the clergy, and was again refused, whereupon he `took better advice’ and instead imposed the heaviest levy of the reign, a thirteenth of revenues and movables.  According to the writ sent to the sheriffs giving orders for the collection of the tax, it had been authorised `by the common counsel and assent of our council’, which may well have been true, since the latter’s composition was such that the king could have relied on its concurrence.45  But when a writ sent to the clergy of the vacant province of Canterbury on 26 May 1207 described the thirteenth as having been granted by `the archbishop, bishops, abbots, priors and magnates of our kingdom’,46 it is difficult to take the claim seriously – opposition to the tax was widespread, led by the very archbishop (Geoffrey of York) who was named first in the writ as having consented to it.47  It is true that the Waverley annalist described the council as involving `an infinite multitude of prelates of the church and magnates of the kingdom’, but there is no other discernible evidence for their presence, and even if such throngs did attend, it is hard to see how they could have contributed much to proceedings which were controlled by the king’s intimates and lasted for only two days.  The claim of participation, like the thirteenth itself, may well have rankled with those who had allegedly concurred in it, so that one of the main aims of Clause 14 was probably to ensure that such assertions had greater authenticity in the future.

The quality of counsel

It may have been characteristic of John’s style of government that though the writ ordering collection of the thirteenth was said to have received conciliar assent, it was issued under the king’s sole authorisation – teste me ipso - as if to underline his own responsibility for it.  Perhaps it did not occur to him that it might have been politically expedient for him to share the resentment certain to be aroused by this onerous measure with the councillors who had assented to it, by naming them, too, as witnesses.  As it was, his autocratic tendencies increased, and he did not hesitate to take action against councils held by others of which he disapproved – in May 1207, professing to be responsive to the outcry of his subjects and their fears of loss, he prohibited an ecclesiastical assembly at St Albans which he had heard was about to discuss making increased payments to the pope.48  He continued to take advice in the years which followed, but his reliance on a small group of intimates when doing so did not diminish, and outsiders to the circle of his familiares who hoped to influence him, however great their eminence, might find it hard to do so. 

One man who understood this was William Marshal.  On 7 March 1208, John wrote to the justiciar of Ireland describing, with evident irritation, how the Marshal had joined him at Bristol, despite not having been summoned to do so.  The king was on his way to a council at Winchester, arranged for the 12th, and suggested to the Marshal that he go and inspect his nearby estates in the meantime, but William refused to take the hint, and insisted on accompanying John every inch of the way – pedetentim.49  The council duly met at the time and place prescribed.  Its main business was probably a confrontation between Simon Langton, acting on behalf of his brother Stephen, the would-be archbishop of Canterbury, and a group of prelates revealingly described as `our bishops’50 – Winchester, Norwich, Salisbury, and Bath and Glastonbury were the only ones recorded as being with John around this time, and the first two, in particular, were among John’s closest advisors.51  But either then or immediately afterwards, when the court moved on to Marlborough, there was probably an ordinance issued relating to coastal shipping, and also important Irish business – the making of peace between the king and both Walter de Lacy and William Marshal himself, and perhaps a directive for action against Irish thieves.  No doubt it was the knowledge that this was on the agenda, and his consequent determination not to be excluded from the king’s counsels, which kept William in daily attendance on John, in what may not have been entirely congenial company, since alongside the justiciar, the chancellor (William de Gray), the earls of Derby and Salisbury and William de Briouze, the king was also accompanied by the usual group of household men – William Brewer, Hugh de Neville, the steward William de Cantilupe, and other trusted curiales, the sort of intimates with whom John had conspired to ruin him in the previous year, and whom the Marshal could reasonably have feared might again use their access to the king’s ear to his disadvantage.

The predominance of such men can only have been accentuated after first the interdict, imposed on England on 24 March 1208, and then John’s excommunication, proclaimed on 8 November 1209, led to the withdrawal of almost all the English bishops from his retinue.  Only Winchester and Norwich continued to serve him, giving his court an increasingly secular, and indeed military, complexion.  This can be seen in the famous list of John’s `evil counsellors’ entered by Roger of Wendover in his account of the events of 1211.52  It contains both errors and omissions, but still gives an accurate impression of John’s day-by-day entourage.  Only three bishops were included, Winchester, Norwich and Philip of Durham, who had in fact died three years earlier.  The other twenty-nine names were mostly those of men who had appeared regularly as attending the king, receiving orders from him and witnessing his charters.  Revealingly, only three earls were included, one of them being the justiciar and another the king’s half-brother - the high aristocracy was not associated by the chronicler with the circle around John.  Most of those named were administrators, though many had military experience, but ominously for the future, several were primarily soldiers, even if they performed administrative duties as well – Brian de Lisle, Philip Marc, Gerard d’Athée, Engelard de Cigogné. 

The character such men gave to John’s court is perhaps to be seen in the record drawn up on 27 May 1212 of guarantors of the future good conduct of Peter de Maulay, and of the penalties they agreed to incur should Peter offend again.53  There was no recorded council at this time, these were simply the king’s attendants.  As well as the two usual bishops, the company consisted of the justiciar, the king’s half-brother, the earls of Chester, Arundel and Oxford, three archdeacons, all of them apparatchiks, and then a number of courtiers and government agents, headed by the well-nigh omnipresent William Brewer.  Of the twenty-six men involved, twelve were named as `evil counsellors’ by Wendover, along with Maulay himself.  In a few cases, the forfeits were specified; the bishop of Winchester was to give twenty palfreys, with saddle-cloths and bridle-reins, if Peter relapsed, and the earl of Salisbury promised to give the king all his hawks, while Henry FitzCount undertook to take a beating, should John so wish – perut vobis placuerit teneor verberari.  It was from such men, in an atmosphere of outdoor sports and rough humour, itself no doubt intensified by a growing military presence (Engelard de Cigogné and Brian de Lisle were among Maulay’s pledges) that John was now taking advice, and with others like them they remained at hand thereafter.  When John held a council of sorts at Wallingford on 1 November 1212 to treat with the northern barons,54 it was in the company of the bishop of Winchester, the justiciar, the earls of Salisbury, Warenne, Winchester and Derby (or Ferrers), William Brewer, Hugh de Neville, Richard Marsh, Peter FitzHerbert, Thomas of Erdington and Simon of Pattishall.55  Only the presence of Philip of Orby, the justice of Chester, struck an alien note, the others were all regularly in attendance on the king, and witnesses to his charters, and until the crisis at the very end of the reign they were consistent in their support for the king.

A number of councils were held in 1213 and 1214, mostly for negotiations over ecclesiastical affairs.  They present familiar problems of interpretation.  When John resigned his kingdom to the pope at Dover on 15 May 1213, he professed to be acting `of our own spontaneous good will and the common counsel of our barons’, but only eleven men witnessed his oath of fealty, and all of them (except the count of Boulogne) were the sort of men usually found with the king; the archbishop of Dublin, Henry of London, who headed the list, was an experienced royal servant who had hitherto attested frequently as archdeacon of Stafford - he had stood surety for Peter de Maulay under that title.56  There were almost certainly more men available who could have added their names to this important document.  Less than ten days later, on 24 May, an invitation to Stephen Langton to come to England was backed up by supporting letters from the archbishop of Dublin, the bishops of Winchester and Norwich, and twelve of `our barons’, who as well as the justiciar included five earls, the count of Boulogne, two northern lords (Gilbert FitzReinfred and Robert de Ros) and the marcher baron Roger Mortimer of Wigmore, along with William Brewer and Peter FitzHerbert (another committed royalist, and on Wendover’s list).57  All these men can be shown to have been in John’s company at this time, as the king moved round Kent, and others too, for instance the earls of Hertford and Hereford,58 but he chose not to advertise the fact when coming to terms with the papacy.  Perhaps the speciousness of his claim to have baronial support was so blatant that John felt unable to risk having it exposed as a deception by men he invited to attest it.

A further council, described by Wendover as attended by bishops and magnates and lasting for three days, was held in London at Michaelmas 1213, primarily to discuss compensation for the church for its losses during the interdict.59  It was presumably in connection with this assembly that on 3 October John issued a renewal of his homage to the pope, again stressing his own spontaneous wish and the common consent of the barons.60  Archbishop Langton attested first, and was followed by four bishops, three of whom (London, Ely and Lincoln) had only recently returned to England with him from exile.  Geoffrey FitzPeter was kept away by sickness – he died on 2 October – but the other witnesses made up what can only be described as a familiar company of loyal earls and more than loyal government agents, with Brian de Lisle ending the list and Richard Marsh authorising the document.  If there were more people there whose seals could have added visible weight to the transaction, John again preferred not to let this be known.

Royal persistence and baronial resistance

It is possible that John had not given much notice of the Michaelmas assembly.  It would seem that around the time it broke up he decided that a council should be held at Oxford.  He sent orders for the repair of his houses there on 5 October,61 and if summonses were sent out at the same time, then an assembly which was scheduled for 15 November would have had almost exactly the forty days’ notice demanded by the barons in 1215.   But John may then have got word that the magnates were setting out in a truculent, even belligerent, mood, for on 7 November he issued further orders which must have thrown everything into confusion, instructing the sheriffs to see that the knights summoned for the 15th came with their weapons, but that the barons came unarmed, while four discreet knights of each county were to attend ready to discuss the affairs of the realm.62  How these last were to be distinguished from the knights who in many cases must already have been on their way, and how the barons were to be disarmed, and by whom, John did not explain, and his mandate has a decidedly confused appearance, as indeed does his itinerary ahead of the council.  Having reached Wallingford on 3 November, and Woodstock on the 4th, he then went back to Witney before heading east to Brill (from where he ordered that supplies which included 5000 herrings should be sent to Oxford against his arrival there, presumably in acknowledgement that the 15th was a Friday), and then north to Finmere, west of Buckingham, and on to Silverstone, in Northamptonshire, before turning south again for Oxford.63  What was discussed when he arrived there, and by whom, there is no way of telling, though the fact that John was accompanied by the papal legate Nicholas of Tusculum (otherwise only William Brewer is recorded as being with him) suggests that church business was on the agenda, and perhaps that the council was intended to be a continuation of the one recently held in London.  Difficulties over attendance – of the king’s own making – may have meant that John found few magnates and knights to talk to, explaining why the council’s business was apparently soon dispatched.  John is recorded at Oxford on the 16th and 17th, but by the 18th he had left again for Woodstock.

All the evidence suggests that John did not much like, or want, the company of most of his barons, and except perhaps at Northampton in 1205 (when the results were hardly encouraging) did not try to win them over or to soften their grievances by mixing with them.  (In this he was very unlike Henry III, who seems to have believed that there was no problem which could not be solved, or at least made to look capable of solution, by throwing a good party at it.)  At the end of 1213, according to Wendover, John spent Christmas at Windsor, where he bestowed many festive robes (indumenta) on his magnates.64  The robes may have been numerous (although there is no surviving record of their being purchased, when fish, venison and probably wine were being laid on),65 but not so, apparently, the magnates.  The king’s stay at Windsor was brief – he was at the Tower of London on 23 December, and at Windsor on the 25th, but he was back at the Tower on the 28th and 29th, and then at Waltham until the New Year.66  Present with him were Brian de Lisle and Henry of Braybrooke, and also Arnulph of Auckland, an important royal clerk,67 but there is no sign of any baronial attendance.  At the following year’s better recorded (though no more extended) Christmas, John is recorded as having been accompanied at Worcester by three bishops (one of them Peter des Roches, who was now justiciar) and three earls, including William Marshal, and also by William Brewer, Hugh de Neville, Peter FitzHerbert, Robert de Ros and Richard Marsh, the chancellor.68  No doubt there were others present on each occasion, but the fact that they have left no trace in the records hardly suggests that they were made to feel welcome among the king’s habitual associates.  During the year in between, John spent several months campaigning in Poitou, and there, too, his charters suggest a strong preference for the company of his familiares, even though a number of his potential opponents were serving in his host, giving him an opportunity to draw them into his retinue.  A few of the latter did attest during this time – William of Huntingfield, William Malet, Richard de Muntfichet, Maurice de Gant and Thomas of Moulton did so, along with Simon of Kyme’s son – but the predominant impression given by John’s Poitevin charters is that of an entourage which over an extended period was constituted largely as it had been in England.69

John returned to England in mid-October 1214, and just over a month later, between 17 and 23 November, was present in London at extended negotiations which were largely devoted to ecclesiastical affairs, but which took place in an atmosphere of growing political tension.70  The most important achievement of this assembly, the grant of freedom of election to churches, which was almost conventionally issued on 21 November `with the common consent of our barons’.71  The claim was somewhat more realistic than its predecessors, for although the justiciar Peter des Roches was the only bishop to witness the grant (the fact that it was made in the form of an agreement between the king and Archbishop Langton and five other bishops doubtless prevented the latter from subscribing it), six earls followed him, together with Robert de Vere, who claimed the earldom of Oxford.  But nearly all the rest of the attestors were the usual household men, headed by William Brewer, Warin FitzGerold and William de Cantilupe, and although three actual or potential malcontents and rebels, Robert FitzWalter (who had been outlawed on the king’s orders two years earlier), Geoffrey de Mandeville and Richard de Muntfichet were present next day, when John confirmed to Langton the patronage of the see of Rochester, they can hardly be said to have outnumbered the loyalists there.

FitzWalter and his companions were back in London in mid-January 1215, for negotiations with the king – a safe-conduct was issued on the 14th, and they were in the king’s company next day.  John stayed either at the New Temple or in Guildford between the 9th and the 21st, making this gathering perhaps the longest of the reign apart from the one which produced Magna Carta itself.  Despite being held in an atmosphere of considerable tension, one heightened by the presence of many armed men, which may well have deterred some of the magnates (and especially John’s opponents) from attending, the assembly was probably larger than the previous November’s.  More bishops were there – two of them, Coventry and Chichester, came as bishops-elect, showing that sees were now being filled after the lifting of the interdict – and at least three abbots were present, those of Westminster, Ramsey and Beaulieu.  Not all the king’s adversaries were intimidated into staying away, for among those in attendance during this period were Thomas of Moulton, Simon of Kyme and William d’Aubigny.72  But the earl of Winchester and Robert de Ros, who later rebelled, were probably still regarded as loyal to the king at this time, and overall the strongest impression given by the witness lists is yet again the predominance of prelates, earls and government agents who had long shown themselves to be consistently loyal to the king. 

Probably for that reason, among others, nothing came of the meetings of January 1215, but it is quite possible that baronial recollections of them, as much as memories of the imposition of levies like the thirteenth of 1207, contributed to the precision of Clause 14 of Magna Carta.  It has been suggested that the clause represented a clever ploy on John’s behalf, who could hope to control discussions through his own servants, most of whom were tenants-in-chief, and perhaps to create, or at any rate exploit, divisions between the magnates and lesser men.73  But it seems more likely to have been devised as a restatement of what had been conventional practice, intended to ensure by sheer force of numbers that when the barons were united in their dealings with the king, they could not be overridden, slighted or ignored in favour of men like Peter des Roches, Richard Marsh and William Brewer.

Their intimate association with John’s methods may explain why some of the curiales were not with the king at Runnymede – it is easy to imagine that he would have liked to have Marsh and Brewer, in particular, at his side, but perhaps they were so closely associated with his particular style of kingship that their presence could have seemed provocative.  Or perhaps Brewer, who in 1223 spoke out against a re-issue of Magna Carta on the grounds that it had been originally issued under duress,74 disapproved so strongly of the way things were going in 1215 that he dissociated himself from the negotiations leading up to the treaty between the king and his adversaries – he last attested on 9 May, though he did not desert the king, who appointed him one of the overseers of his testament.75  Of the other `evil counsellors’, some were dead by this time, and several (for instance Robert de Vieuxpont, Hugh de Balliol, Brian de Lisle and Philip Marc) would have been active on John’s behalf away from London, while a few, then or shortly afterwards, were to be found in the ranks of the king’s enemies.  Only four of them – Peter des Roches, Peter FitzHerbert, Hugh de Neville and Thomas Basset – stood alongside John on 15 June 1215, together with a number of bishops, the papal legate, the usual four earls, and other courtiers and minders of the machine of government (who often amounted to the same thing).

Behind its technicalities, Clause 14 was a considered indictment of John’s manner of ruling, of the irregularity of its processes, the fluctuations in its personnel, and its restless and aggressive character.  Though it was nominally directed towards grants of taxation, it seems inconceivable that those were all the barons were concerned with in 1215, they would have had all the important activities of government in mind, as they attempted to bring predictability and routine into them.  The Charter made no attempt to dictate the composition of his entourage to the king – the clauses that come nearest to this, 45 and 50, confined themselves to excluding foreigners from office – what mattered was that he should not take decisions affecting the magnates and their followers without consulting them, in circumstances which allowed for their considered involvement and in numbers which would have prevented their intimidation by the king’s supporters.  It is very likely that many more important men had been present than are named in the records when measures like the thirteenth of 1207 were enacted, but the consistency with which the records name few besides the king’s intimates when councils were held , even when there were magnates present whose attendance could reasonably have been registered, is surely in itself a pointer to the king’s attitude towards the latter.  The mere presence of earls and barons would have meant little, moreover, if they had no chance to participate in proceedings which were rushed through without time being allowed for proper discussion.  In the last resort, Clause 14 was aimed at John himself, and at the febrile quality of a style of government which took its whole tone from him.  That it was dropped from later re-issues must have been largely because, like Clause 12, it set out conventions which were so widely accepted as reasonable that it became unnecessary to give them formal expression.  But it must also have been abandoned because the king whose entire modus operandi ran radically against those conventions was no longer there to reject them.

Citation

(a) Service and scutage

Clause 16 of Magna Carta comes at the end of a short sequence primarily concerned with the financial implications of the king’s relations with his tenants-in-chief.  Its equivalent among the Articles of the Barons, no. 7, was placed in a broadly similar context, but may have lost strength through other material (Articles 32, 34-5) covering related ground having been situated much later in the sequence.  The final ordering of clauses 12 to 16 of the Charter was logical in itself, and also arranged in such a way as to impose a cumulative restraint on some of King John’s money-raising techniques.  The Clause and the Article were by no means identical, however.  The latter’s simple prohibition on doing more service than was owed was rephrased and extended.  The Article could have been taken to imply, however improbably, that some idealists were voluntarily doing an excess of service and needed to be prevented from breaking ranks with their harder-headed associates.  Clause 16 made it clear that the forcible measures inherent in distraint had been applied to compel more service being done than was owed, and forbade this for the future.  And whereas the Article spoke only of the service owed for a knight’s fee, Clause 16 applied the prohibition to all free tenements, thereby implicitly excluding the unfree from its protection, against the demands of their lords or anyone else.

More positively, the extension of Clause 16 to cover all free tenements gave protection to those who held their lands in return for non-military services , and was indeed capable of being interpreted as also defending the free sub-tenants of tenants-in-chief against unwarranted demands by their lords.  How far this last possibility was intended is unclear.  Clause 15 had clearly been drafted with this purpose in mind, since it made exact provision for the circumstances in which a lord could take an aid from `his free men’, and envisaged this happening only with royal licence.  But Clause 16 was far more general in its application, as, indeed, were the clauses which followed it, and made no provision for its own enforcement (also unlike Clauses 12 and 14, which together established the administrative machinery for the imposition and assessment of scutage).  It was, moreover, to all outward appearances unnecessary for the protection of sub-tenants, who already possessed a means of self-defence against over-exigent lords, in the writ ne vexes, which in the words of the writ itself gave protection to a tenant against a lord `demanding, or allowing to be demanded, customs and services which he is not bound to do ...’.  The tenant-in-chief, by contrast, had no such recourse against the crown (this is discussed further below).  The original formulation of Article 7, speaking only of the service due from a knight’s fee, placed it in a sphere regulated by the relations between kings and tenants-in-chief, in which the military service owed by the latter to the former played a preeminent role.  Its extension in Clause 7 to cover all free tenements brought it into contact with a different world, where on the evidence of deeds and charters links between lords and men were usually defined in terms of landed units, of manors, tenements and rents, and services were far more often expressed in fiscal than military terms.  This widening of the clause’s scope certainly had the potential to benefit the sub-tenants who stood behind the barons and prelates who negotiated Magna Carta, but the latter were thinking primarily of their own interests when they drafted it.

Behind Clause 16 of Magna Carta there lay two principal issues, both of them essentially military: the king’s ability to require service overseas, and his right to commute services, wherever they were demanded, above all for financial payments in the form of scutage.  The former did most to arouse overt opposition, and arguably did so at higher levels in society, but the latter is likely to have had the more widespread impact, and must, indeed, have done much to engender resentment against King John’s regime among knights, gentry and other lesser freeholders.  The inter-relationship of these two bones of contention is shown by their being dealt with in consecutive clauses (7 and 8) of the `Unknown Charter’, seemingly a product of discussions and negotiations in the early months of 1215.  In clause 7 King John was envisioned as conceding that `Moreover I grant to my men that they shall not go in an army outside England except to Normandy and Brittany, and this only as is appropriate (decenter), so that if anyone owes me the service of ten knights this will be scaled down by the counsel of my barons’.  And in the next clause that `If scutage occurs in my land, one silver mark is to be taken from a knight’s fee, and if a military emergency (gravamen exercitus) arises, more might be taken by the counsel of the barons of the kingdom’.1

The precision of these demands, and in the case of clause 8 the completely unrealistic limitation on the rate at which scutage might be levied, when taken together with the attempts they embodied to impose controls on rights which John and all previous kings had been accustomed to exercise without dispute, was such as to make them unacceptable to the king, at any rate in that form.  There are certainly no exact parallels to them either among the Articles of the Barons or in Magna Carta, but the latter ultimately contained three clauses covering the relevant ground.  Clauses 12 and 14 named scutage as a levy which was only to be imposed with `the common counsel of the kingdom’, while Clause 16 was presumably intended in the first instance to be directed at overseas service (servicium was, after all, its focal point), though its relevance to scutage as well probably made it no less acceptable, as underlining the resistance provoked by this contentious issue.  (It may also have been appreciated in some circles that the sleight of hand which linked scutages with aids in Clauses 12 and 14 might prove hard to sustain, and that these clauses would eventually have to be abandoned, as indeed they were.)   The rather indefinite language of Clause 16, when compared with the exactness of the `Unknown Charter’, has been perceived as a `something of a royal victory’.2   It is probably truer to say that it reflected the sheer difficulty of restricting royal rights over the raising and deployment of armies which were both wide-ranging and long-established.  The barons focused their attention on John’s exploitation of his position as feudal overlord.  But that position was too closely bound up with the sovereignty which made him ultimately responsible for the defence of the kingdom to be readily separated from it – it was hardly possible to restrict the one without damaging the other.  Clause 16 registered a protest, legitimized objection and even resistance, and, thanks to its very lack of specificity, raised the possibility of future extension.

(b) The development of commutation

Successive kings needed military services from their subjects, and could receive them directly – those who owed knight service to the king as the basic condition on which they held their lands could turn out for campaigns to which the king summoned them – or indirectly, through the commutation of service for cash, or, occasionally, for other forms of service, as in 1165, when the tenants-in-chief were persuaded to finance troops of serjeants, well-armed infantry, for an expedition to Wales.3  Scutage, the name given to financial commutation, was so called from scutum, a shield, and was assessed on the number of knights whose service a tenant-in-chief owed.  It was as much an obligation as military service, and the decision as to the form in which service was performed, military or financial, rested entirely with the king, who could demand a baron’s physical presence on a campaign, or indicate that he would rather have the money which would enable him to hire mercenaries instead. 

An English king usually wanted to have at least some of his leading subjects with him when he went on campaign abroad.  Their presence had a moral as well as a military value, in showing that his subjects regarded his cause as just, and were prepared to join him in fighting for it.4  But since custom usually limited feudal service to forty days (the adjective `feudal’ is controversial, but no concise substitute has been found which adequately conveys the conditional tenures and mutual obligations implicit in it), rulers with extensive overseas commitments, and a constant need to defend them, often preferred to have the money.  They did so the more readily because English knights seem to have been regarded as of inferior quality, partly, at least, because Henry II forbade them to improve their skills by taking part in tournaments.  When that king organised a major expedition to the south of France in 1159, he preferred to hire soldiers, and took a scutage throughout his lands to pay for them, rather than to call upon the services of `country knights and a multitude of burgesses and rustics ...’ (though he did also require his leading barons to accompany him, perhaps in order to show that he had their backing).5  The immediate purpose of the inquests into knight service in 1166 which produced the Cartae Baronum, lists submitted by tenants-in-chief naming all their sub-tenants who held their lands (fiefs, or fees) by military service, along with the knights of their households (super dominium), was most likely the levying of an aid to finance the marriage two years later of Henry II’s daughter Matilda to the duke of Saxony, which was assessed on the number of knights’ fees held from the crown.6  But it also provided the king with information which could be used to extend the imposition of scutage levies, by making it possible to take scutage not just for every knight whose service a tenant-in-chief owed, but also for every knight to whom the latter had granted lands or had at his command. 

Efforts were certainly made to exploit the Cartae in this way, with a measure of success – it has been estimated that the number of fees which paid scutage rose by just over 1200, and could have been higher had the king insisted on it.7  But they also encountered resistance – when Henry II took a scutage in 1172 for his expedition to Ireland, for instance, both the bishop of Worcester and the abbot of Peterborough distinguished between the scutage of knights which they acknowledged owing the king, and which they paid, and smaller sums which they did not admit to owing, and which they did not pay.8  Where a higher rate was successfully demanded, it was often from the tenants of vacant bishoprics and escheated honours, which the king could now exploit in the same way that otherwise only their lords, when they had them, were able to do - this is discussed further below.  Thus in 1187 scutages based upon both the old and the new enfeoffment (the distinction, made in 1166, was between fees in existence in 1135 and those created afterwards) were imposed on the knights of William de Vesci, who was lord of Alnwick, and of the earl of Chester, with a note in each case: `because the honour is in the king’s hand’.9  A number of other demands for additional payments, derived from the Cartae, remained on the pipe rolls for years, until they were finally abandoned as hopeless.  But the fact that more could in theory be demanded for scutage than was usually paid was not forgotten, and might be acted upon.

Henry II levied only seven scutages in the course of his reign, and usually preferred to raise the money he needed in other ways.  Sometimes, indeed, he chose to call out the entire feudal host – in the crisis of the very end of Henry’s reign the justiciar, acting in the king’s name, summoned all the knights of England for service overseas, `even though feeble and poor’10 – but this was the unusual response to an exceptional emergency.  Where men were summoned, it was commonly just a proportion of them, as in 1157, when only a third of the available manpower was called upon to fight in Wales, and this trend continued under Richard I, who also called out just a third of the feudal host in 1194, and when he issued a general summons in 1196 instructed the barons (among whom those with Norman interests were expected to be prominent) to bring only small contingents of knights with them, though he expected to require their services for a long period.11  Quality, not quantity, of service, and the provision of troops able to take part in extended campaigns, were what was needed, as Richard made clear in 1197, when he tried to raise the money needed to enable him to keep a force of 300 knights in the field for a whole year – the abbot of Bury St Edmunds paid £100 to cover the cost of the four knights he was required contribute during that time.  He actually owed forty knights, but the king had limited his demand to the service of one knight in ten.12

The abbot was not required to fight in person, but in common with all other tenants-in-chief, he still had either to find the men, or if scutage was demanded, pay the money that was required.  If the latter, the tenant-in-chief could secure a writ de scutagio habendo which entitled him to recover his outlay, if need be with the assistance of the sheriff, from his tenants - he did not have to bear the cost from his own resources.13  Indeed, he could even make a profit, if he had enfeoffed more than the service officially required of him, by taking the scutage from all his knights, and not just the number required to meet the king’s demand.  Bury St Edmunds owed forty knights, but the abbey lands supported fifty-two, and in around 1194 Abbot Samson enforced his right to take scutage from all of them, so that if £40 had been demanded, he would actually have received £52, leaving him £12 better off.14

The way that scutage came to be pushed down the social ladder can be seen in a number of lawsuits, several of them related to fines recording agreements for its payment.  In some cases these were made between tenants-in-chief and their sub-tenants.  Richard de Sifrewast, for instance, was holding the Buckinghamshire manor of Chesham Bury directly from the crown when in 1207 he sued Robert de Pinkenni for the scutage he said was due to him from £4 of land there (Robert was his brother-in-law, and the action probably originated in a dispute over dower).15  But William de Paris was the sub-tenant of the barony of Cogges, held by the Arsic family, and thus a rung lower on the feudal ladder, when he prosecuted his tenant, Adam the butler, for arrears of scutage totalling 7s. 8d. in 1206.16  In neither case did the plaintiff specify the proportion of the demand thus passed on, but other actions show that it could be calculated with precision.  Thus a fine made in 1201 between William de Hauville and Ralph of Grantham over land at Helhoughton, Norfolk, settled that Ralph would hold the estate from William for 40s. per annum and 2s. towards every scutage of 20s.17  At about the same time the earl of Norfolk made provision for fluctuating rates of scutage when he granted six acres of land at Heveningham, Suffolk, to Hervey the baker, on conditions which included the contribution of 1d. towards the king’s scutage when it was levied at 20s., `and more, at a higher rate, and less, at a lower one’.18 

In a world dominated by earls Hervey was probably a very humble figure, but he must at least have been personally free.  That those who were not might still feel the impact of a royal demand for scutage is shown by a record from 1196, in which the villeins of `Wicke’, Northamptonshire, having complained (presumably in vain) to Archbishop Hubert Walter, acknowledged obligations to their lords which included scutage, `payable this time at 20s. and on other occasions as they can settle (finire)’.19  The burden of taxation could not have been forced down any further.  His ability to pass that burden down does not, however, mean that the tenant-in-chief could therefore hope to escape scot-free.  Money which disappeared into the exchequer or the king’s chamber had ceased to be available to the baron who wished to take an aid or otherwise exploit his authority over his vassals, and in any case lords were probably expected to protect their sub-tenants against government exactions, and risked losing social esteem, and perhaps also tenants, if they failed to do so.  Both tenants-in-chief and their sub-tenants had an interest in bringing the imposition of scutage under control.

This was no less true of another device whereby the king exploited his right to military service.  Perhaps because it was understood that scutage represented a way for lords to tap the resources of their tenants, thereby making it clear that there were reservoirs of wealth which the king was failing to exploit, there developed the practice of taking fines for remission of service, instead of, or as well as, scutage, and often at high rates.  Such fines appear to have been taken on two principal grounds.20  They could represent lords’ personal scutages, within which were understood the right to scutages from the knights of their households (the equivalent of the demesne knights of the 1166 inquests, which here too were presumably still being used for purposes of assessment).  And they could also be more straightforwardly understood as the payments made by lords for release from military service for themselves and their sub-tenants, together with the right to collect scutage from the latter; hence, for instance, the proffer of forty marks and a palfrey (in effect another five marks) which William of Mountchesney made for licence to remain at home in 1201, and which was recorded alongside instructions to the sheriffs of three counties to cause him to have the scutage of his knights.21  But whatever the grounds on which such fines were demanded and paid, of their impact there can be no doubt.  They probably began to be taken under Richard I, but became much more frequent and heavier under King John, and together with scutages constituted a heavy and growing burden. 

(c) Widening liability

Four scutages were taken during Richard’s reign, but eleven during that of John, starting in its very first year.  They became increasingly oppressive, for their regularity, because they were charged at higher rates than before (a reflection of the increasing cost of warfare, in an age of monetary inflation), and because they were demanded of people who had not previously been regarded as liable to pay.  This can be seen in 1201, when the ostensible rate was two marks (26s. 8d.) per fee, but many payments were considerably higher.  Thus in Lincolnshire Simon de Canci paid twenty marks (£13. 6s. 8d.) for the fees of five knights, and in Somerset his holding a single fee of the honour of Dunster cost Walter Dunheued five marks (£3. 6s. 8d.), while in Yorkshire Sibyl de Fiesnes had to pay twenty marks for just two knights’ fees.22  In all these cases the scutage, however extortionately, was charged upon lands held in return for military service.  But a large number of payments were also exacted from men and women whose lands were held on different terms, and who might therefore have expected to remain exempt.  In the north of England a number of men held by cornage, an ancient due which required military service only on the borders in the event of war with Scotland, and otherwise required no more than the payment of modest sums of money, probably in commutation of a render which had formerly been paid in cows.  And throughout England men and women held their lands by serjeanty, in return for a wide variety of services which in a few cases were essentially military, but much more often entailed the performance of duties about the royal court and tasks necessary for the management of the king’s forests.

Fines made in 1201 for not being obliged to serve overseas included examples of both kinds of tenure, and show that for the cornage tenants the sums involved could be substantial.  Simon de Tilliol and Adam son of Adam, both of whom held estates in Cumberland by cornage, and Alan son of Benedict, who did the same in Westmorland, paid £5 apiece to be permitted to stay at home.23  Nicholas de Stuteville, a great landowner in Yorkshire and Cumberland, held the lordship of Liddel Strength in the latter county by cornage; he, too, gave £5 instead of serving overseas, but still sent his son to do knight service.24  Serjeanty tenants paid less, perhaps in acknowledgement that their tenures lacked the social cachet associated with knighthood.  Perhaps some of them could reasonably have been summoned to serve in the king’s army, men like Samson of Molesey from Surrey, who was expected to attend that army with a crossbow, or Geoffrey of Poorton from Hamsphire, who was required to provide a serjeant with a hauberk for forty days.25  But it is hard to see what useful service could have been required of Adam the Saucerer, who held Little Salkeld in Cumberland by the service of acting as the queen’s cook, from Geoffrey de Luveretz and Walter Esturmy, who held hunting serjeanties in Wiltshire, or from Simon Ponzard, who held property in Berkshire by the service of turning a spit in the king’s kitchen.26  In fact it is most unlikely that John wanted the physical presence of such men in his army, but he needed their money, and to obtain it he probably let it be known that offers of appropriate payments would ensure that they were not summoned to cross the Channel to Normandy - sums ranging from 6s. 8d. to 20s. were found acceptable.

Raising money in this way, in defiance of all precedent, because scutage had hitherto been narrowly restricted to those who held by military service, was never likely to be popular, and may in fact have prompted dissent, which may indeed have focused on both the main grounds around which opposition to John’s demands for service crystalised later in his reign.  Roger of Howden, in writing about the events of 1201, recorded that immediately after Easter [25 March] John ordered the earls and barons to assemble at Portsmouth at Pentecost [13 May] for an expedition to Normandy, but that the barons had first gathered at Leicester, and after some discussion had told the king that they would not accompany him `unless he restored their rights to them (nisi ille reddiderit eis jura sua)’.27  The chronicler did not record what those `rights’ were, but that they were significant ones is suggested by the forcefulness of John’s response - he demanded that the barons surrender their castles to him, and since the troops he was gathering gave him the advantage of military superiority, they complied.  The baronial dissent may well have included reservations about service overseas, which were not in fact new.  In 1197 such service had been refused by the bishops of Lincoln and Salisbury, who claimed that they did not owe it,28 and the knights of St Edmunds made the same objection, though they admitted to having sometimes paid scutage instead.29  And the barons may also have been objecting to John’s perceived misuse of the feudal summons as a means of collecting money, especially in the case of northerners like Nicholas de Stuteville, who held lands by both military and cornage tenure.

In 1201 John was still able to enforce his demands, and for the time being fines and scutage continued to be taken, with intermittent attempts to extend the impact of the latter by the reactivation of the higher assessments made possible by the inquiries of 1166.  In 1201 the earl of Devon paid on forty-five fees which he did not acknowledge, as well as on fifteen which he did,30 and two years later William de Longchamp, the lord of Freiston, Lincolnshire, accounted for £30 `of the old enfeoffment’ and £6 `of the new enfeoffment’, having seemingly accepted his liability for a full £36.31  The following year’s scutage was charged at the hitherto unprecedented rate of two and a half marks (33s. 8d.) per fee, but was often taken at one which was even higher.  Walter de Bolebec, who held the Northumberland barony of Styford by the service of five knights, had to pay no less than £40, or £8 per fee, and Nicholas of Morwick, a landowner in the same county, paid £10 for a single fee.32  The abbot of Crowland, Lincolnshire, was charged with £20, even though he owed no knight service at all, and the abbot of Ramsey, Huntingdonshire, with £100 for four knights’ fees, while Richard son of Warner, a very small landowner in Huntingdonshire, who had only a quarter of one fee, still had to pay £2 for it, 6s. 8d. more than the nominal rate for a whole fee.33  John had showed himself determined to end the traditional independence of the great northern lords.  The fines he raised in 1204 provoked resistance, and by the end of the year had helped to bring the north of England to the verge of open revolt, though this was averted by timely concessions to the region’s leaders, especially the earl of Chester.34  It was usually the lesser tenant-in-chief who were hardest hit by demands for scutage, and this probably remained the case throughout John’s reign.35

(d) Military service at home and abroad

In 1204 John could have claimed to have legitimized his demands by securing the consent to them of a council held at Oxford at the beginning of the year.36  Similarly in March 1205 he seems to have held two councils in rapid succession, the first at London and the second at Oxford,37 which resulted in letters being sent to all the sheriffs on 3 April, notifying them that it had been provided, with the assent of archbishops and bishops, earls and barons, that throughout England every nine knights were to fund and equip a tenth, thereby creating a force which was to assemble at London on 1 May, `prepared to go in our service where we shall order, and to be in our service for the defence of our kingdom in so far as the need arises.’38  Furthermore, `It has also been provided that if foreigners invade our land, all men are unanimously to gather in force and arms, without reservation and delay, once they have heard news of their approach’ – presumably a reference to the supplementary orders, recorded by Gervase of Canterbury, for the creation of a nationwide hierarchy of constables, who were to be ready to muster the nation’s adult manpower in the event of an invasion.  So great was the danger that in the mandate of 3 April John felt able to threaten those who ignored this second summons with lasting social degradation – knights and others landowners would forfeit their estates in perpetuity, while free men who did not possess lands, whether they were knights, serjeants or anyone else, would be reduced to the status of serfs.  Failure to pay scutage, or to obey a summons to the feudal host, might result in disseisin, but lands so taken could be recovered, at a price; the penalty for resisting the king’s command in 1205 thus threatened to be far more severe and to have lasting effects.

The order for the levying of a force of knights was ambiguous about its purpose, presumably deliberately – where it was to go, and how it was to defend king and kingdom, were both left unclear, This worked to John’s advantage, as he doubtless intended, but it also suggests that it might be difficult to define, and thus to limit, the amount of service which the king could demand from his subjects.  That he had the right, indeed the duty, to protect the well-being of his realm was beyond dispute, and there is no evidence for protests against the national levy ordered in 1205.  But raising an army for service abroad was increasingly seen in a different and more suspicious light, and yet precedent was on John’s side, supported, perhaps, by the expectation that he would preserve his rights and his inheritance – undertaking to do so had probably formed part of his coronation oath.  Despite the protests of 1197, and perhaps 1201, it had seemingly come to be generally accepted that the king of the Anglo-Norman regnum created by the events of 1066 had the right to demand military service in Normandy itself and in the regions adjacent to the duchy, and as late as the early part of 1215 the barons themselves, or some of them, were prepared to acknowledge that this was so, when in the `Unknown Charter’ they attempted to confine overseas service to Normandy and Brittany.  Their objection, in fact, was primarily to being called upon to fight in and for the lands on and south of the Loire which had come to Henry II by inheritance from his father and by marriage.

In 1159 Henry had been able to raise men and money in England, apparently without meeting resistance, for an expedition to Toulouse.  By the early thirteenth century, however, feelings were changing.  In fact there was no overt opposition to the summons of 1205, but the measures of that year seem to have been agreed upon in an atmosphere of mutual mistrust.  According to Gervase, the magnates forced the king (compulsus est) to swear that he would preserve uninjured `the rights of the kingdom of England’, while the earls and barons took an oath to perform due service to John, and oaths of fealty were sworn to him throughout the realm.  In the end it became apparent, though apparently only at yet another council, at Northampton in late May, that the army assembled at the beginning of the month was intended for a campaign in Poitou.  In fact nothing came of all these preparations.  There was no French invasion, but John was persuaded, very much against his will, not to risk leaving the country while it was under threat, whereupon he disbanded his troops and took `an infinite amount of money’ from his subjects, churchmen as well as lay barons and knights, on the grounds that they had been unwilling to accompany him in his expedition overseas to recover his lost inheritance.39  Presumably the money was that raised by a scutage of two marks per fee, which was also imposed during this year, and which together with fines could have raised over £10,000.40  King and barons alike probably ended the year with a strong sense of grievance. 

Meanwhile fines and scutages had continued to be paid by men who did not owe knight’s service.  The counties of Cumberland, where cornage tenure prevailed, and Wiltshire, which supported a large number of serjeanty tenures, illustrate the point.  In 1203 just three Cumberland landowners paid fines for military service, but the sheriff accounted for sums ranging from 6s. 8d. to twenty marks for cornage tenants, and a year later for two tenants by cornage, two by drengage and three by serjeanty.41  And in Wiltshire the former year saw men like Matthew Turpin, responsible for providing the king with claret, and William Esturmi, the keeper of Savernake forest, being similarly charged, as they were again in 1204, along with William de Anesi, the keeper of the royal larder, Ralph de Hairez, who looked after the king’s hunting dogs, and several others.42  Few such demands were made in either county in 1205, but in 1206 Richard de Lucy, the lord of Egremont in Cumberland, was assessed at forty marks `for one knight’s fee and for his serjeanty and for the land he holds by cornage’, and the seventh scutage of the reign also included charges upon four serjeanty tenants in Wiltshire.43  The same number, and two of the same men, were similarly assessed for the scutage of 1210, but at much higher rates - Matthew Turpin, who paid one mark in 1206, now had to find twenty marks.44  The cornage tenants of Cumberland were treated similarly; Adam of Kirklinton, who had been charged with ten marks in 1204, now had to give 100, of which he paid eighty within a year, and Adam son of Odard, whose father had paid five marks in 1203, had to find £40 and two good palfreys, the equivalent of an additional twenty marks, while Adam the Sauserer was charged with £10 for his serjeanty, compared with two marks in 1204.45

With increased pressure on non-military tenants went equally heavy demands on the sub-tenants of church lands, as from 1208 onwards these came increasingly under the king’s control.46  All but one of the bishops, and many heads of religious houses, had what were in effect secular baronies, owing the services of specified numbers of knights.  Particularly after 1209, when John’s excommunication caused nearly all the bishops to leave his court, scutages were no longer charged according to the number of knights nominally due from episcopal baronies, but on the actual numbers of enfeoffed knights.  When Abbot Samson was in dispute with the knights of Bury in 1198, it was said that the extra twelve knights used to `support’ the forty he owed, presumably by contributing to the latter’s scutage, which was thereby somewhat reduced in terms of individual payments.  Samson was able to demand scutage from all his knights, and the king now did the same.  Thus in 1211 scutage on the see of Lincoln was demanded from about 104 fees, instead of the sixty previously owed, while the archbishoprics of Canterbury, which owed sixty knights, and York, owing twenty, were now required to pay scutage for nearly eighty-five and around forty-three respectively.47 

When fines were made for exemption from service, they could be no less heavy, and were probably assessed in the same way.  The knights of the bishopric of Chichester had to find £34 6s. 8d. for the Irish expedition of 1210.  Their scutage for the Poitou campaign four years later, which amounted to £19. 5s., was assessed on four fees, which the bishop acknowledged, and a fraction over five and a half, which he did not.48  The disparity in figures suggests that in 1210 all the knights, whether of the old or new enfeoffment, were required to pay, at a rate of about £3. 10s. apiece, considerably more than the £2 demanded by way of scutage in 1214, even though that year’s rate was the highest of the reign.  In 1166 the abbot of Ramsey Abbey had reported that a total of twenty-two men held land from his house, and acted in common to perform the service of four knights.49  In 1210, when the monastery was in the king’s hand, the fines of `the knights and free men’ amounted to no less than £172. 6s. 8d.,50 suggesting strongly that the assessment was based on the number of tenants contributing to the abbey’s military service, rather than on the actual service owed.  If there were still twenty-two tenants involved, then they would have paid about £8 each, but probably there were more by this time, lowering the individual rate.  But in all likelihood the fine reflected the resources of the monastery, and of its free tenantry, rather than the exact numbers of the latter, and the same seems likely to be true of the diocese of Durham, where the knights and free tenants fined for their non-attendance in Ireland by an astonishing £1519. 10s.51  In 1166 the bishop had acknowledged ten knights as enfeoffed before 1135, and about sixty more since then.52  Had seventy men been assessed for scutage in 1210, the yield would have been just £93. 6s. 8d., less than a fifteenth of what was demanded, while raising over £1500 would have required the knights to pay nearly £22 each; the figure is improbably high, and it seems certain that many others were called upon to contribute, as, indeed, the reference to free tenants implies was the case.  When assessed in terms of their commuted value, the king’s demands not only repeatedly amounted to far more service than he was owed, but also affected far more people than ever before.

(e) Ambiguities

Yet paradoxically, at the same time as the rate of commutation was being relentlessly pushed up, baronial resistance and the particularities of royal needs were combining to cause the king’s demands for actual military service to fall sharply.  For the 1210 Irish campaign the justiciar, Geoffrey FitzPeter, provided only ten knights, rather than the 98⅓ due from him, and the earl of Warenne’s contingent numbered just eight, instead of sixty.  The midlands baron Robert Marmion, who may not have been present himself, was allowed to send three knights, instead of twenty-five.  This was not favouritism.  Marmion was on bad terms with the king, as was the Lincolnshire baron Gilbert de Gant, whose contingent numbered six rather than 68⅓, and both men rebelled at the end of the reign.53  Rather it was increasingly accepted that barons should only be required to participate in campaigns by providing forces in keeping with their eminence, thereby demonstrating their loyalty, and perhaps also providing leadership.54  The Irish expedition lasted for about eighty days, twice as long as the conventional period of feudal service.  To maintain an extended campaign John, like his brother before him, required the money which would enable him to hire professional soldiers and retain their services for as long as he needed them.  As a result, even when less service was demanded than was owed, the price of the commutation of the rest could be very high.  In 1166 the abbot of Evesham reported a total of five knights’ fees, his near-neighbour the abbot of Pershore only two.55  In 1210 both abbots were allowed to fine instead of sending knights, one from Pershore and two from Evesham, but the sums involved were large – 100 marks and two palfreys from Pershore, double that amount from Evesham.56  Such was the king’s need for cash, that when Roger Bigod, earl of Norfolk, proffered 2000 marks in 1211 for having the amount of service he owed - his servicium debitum - cut during his lifetime from 120 to sixty knights, along with a suspension of demands for arrears of scutage, the king was probably only too happy to accept, the more so because most of the money was soon paid.57 

Although there were occasions when John did require military service (in 1209, for instance, the knights of Canterbury Cathedral paid no scutage because they took part in that year’s Scottish campaign),58 it is probably true to say that on most occasions he saw it primarily in terms of its financial value, and that in doing so he pressed the demands he made on his subjects far beyond what either convention or agreed terms of service allowed.  When opportunity arose, he certainly made far more out of failure to do service than commutation would have done.  Scutage for the 1209 Scottish expedition was fixed at 20s. per fee.  The abbot of Muchelney in Somerset owed one knight’s service and was summoned to provide it, but the two tenants who held their land from the abbot on condition that when called upon they would produce the knight, together with his arms and everything he needed for his maintenance, failed to do so, with the result that the abbot, because he had neither come himself nor supplied the service due from him, was amerced of no less than 100 marks, more than sixty times a single fee’s scutage.  The abbot then sued the principal culprit, Christian of Wick, in the court coram rege.  She admitted being at fault and put herself in the mercy both of the abbot and the king, which ultimately enriched the latter by another 6s. 8d., but brought no benefit to the former, who by Michaelmas 1210 had paid his debt in full.59  

The abbot’s punishment certainly seems out of all proportion to the dereliction of duty which gave rise to it.  Yet it is impossible to be dogmatic on the point, since the king was indisputably entitled to insist upon his rights.  At every point ambiguities and uncertainties persisted.  The precise purpose of the searching inquests which John launched in June 1212 into tenures by knight service and serjeanty, and into the alienations and grants which had reduced the capacity of their holders to perform the services they owed, is unclear – the survey was never completed, and no action followed it.60  There can be no doubt that one of its principal aims was the recovery of lost revenues, probably to be followed by demands for lost arrears, and then by future levies imposed at higher rates.  Yet the king could reasonably have claimed that he was only ensuring that he received the service due to him, and that there was no good reason why he should have been expected to tolerate encroachments on his demesne, or to see revenues from an estate disappear from sight when its holder became a monk, or to accept that because nobody knew what services were due from a fief therefore none were.  Many of the properties of which details were recorded by the 1212 survey were small, but not all were.  A whole fee in the Worcestershire manor of Clifton-on-Teme, which had been a distant outlier of the honour of Wallingford until the 1170s, had somehow slipped out of the control of the latter’s keepers, and thus become of no value to the king.61  After the forfeiture of William de Briouze in 1208 John himself had entrusted half the barony of Barnstaple, with no fewer than fifteen fees, to Peter FitzHerbert, `but it is not known by what service’.62  Perhaps the need to catch up with the consequences of his own intermittent generosity, as well as with alienations, usurpations and oversights, was one of the motives for the 1212 survey. 

In attending to such details, John was arguably doing no more than his duty as king, and the same was true in March 1213 when he again arranged for a mass call-to-arms in the face of a threatened French invasion.  This had much in common with the summons of 1205, in that the sheriffs were commanded to summon all the king’s free subjects, of all ranks, to be at Dover on 21 April, `well prepared with horses and weapons’, ready to defend `our head, and their own heads, and the land of England’.  Once more those who failed to attend were threatened with social degradation – they would be called `churl’ thereafter, and condemned to perpetual servitude.63  There was no mention of the unfree, but it would appear that some, at least, attended, perhaps mobilised by their constables, for after large forces had been assembled at strategic points on and near the coast, victuals began to run short, whereupon the army chiefs sent home what was described as `a great crowd of unarmed commoners (ex inermi vulgo)’, retaining only knights, serjeants and free men, along with crossbowmen and archers.  Wendover’s estimate that 60,000 men remained at their posts was certainly an exaggeration, but the force must have been a sizeable one.

The destruction of the French fleet on 30 May ended the invasion threat.  The king’s summons to the defence of the kingdom would appear to have been very widely obeyed, however, showing that in 1213, as eight years earlier, this was a form of service which John could command without resistance.  Campaigns overseas remained another matter, but here John showed his ingenuity, both in devising ways of exploiting his resources and also, perhaps, in side-stepping his opponents, by extracting agreements from a number of crown debtors to provide military service, either explicitly in France or wherever he should choose to direct it, in exchange for remission of debts.  The beauty of this practice, from the king’s point of view, was that although it might enable him to receive more in service than he was owed in cash, the necessary arrangements were not made on the basis of military obligation.  Rather they had the appearance, like all fines, of resulting from freely-conducted negotiations, to which, of course, there could be no objection even though the terms under which these agreements were made could certainly be onerous.  In June 1213 Robert of Berkeley undertook to provide ten knights, `well equipped with horses and arms’, who were to go overseas with the king and serve there for a whole year, at Robert’s expense, in order to gain quittance of 500 marks (£333. 6s. 8d.).  This sum was in fact only part of what he owed; the original debt had been 2000 marks (£1333. 6s. 8d.), which pardons and payments had by Michaelmas 1212 reduced to £900.  Assuming that Robert paid his knights 2s. each a day, and thus £36. 10s. per annum, their wages would have amounted to £365, a sum larger than the portion of the debt which this outlay was intended to clear, by an amount that was almost a knight’s yearly wage.  And when he returned to England he might still have had to pay anything up to £566. 13s. 4d. more, at terms which the king would determine.64 

Perhaps Robert of Berkeley protested, or perhaps John had second thoughts, for at the end of December, following the cancellation of a planned expedition, John toned down his demands to the extent of licensing Robert to provide five knights in each of two successive years, starting on 13 January 1214.65  A number of other debtors were granted a similar alleviation.  Robert de Curtenay, who owed the king 1100 marks (£733. 6s. 8d.), and had agreed to cross to France himself as one of twenty knights he was to provide, and to serve there with them for a year, was likewise allowed to send ten knights one year and another ten the next.66  His knights, if his own service is included, would have cost £730, almost exactly the amount of his debt.  If the exactness of the calculation, reinforced by the amendment of terms, was intended to secure Courtenay’s loyalty, or at any rate to avoid giving him grounds for disloyalty, then it probably succeeded.

In the case of Richard Gernon, lord of half the Cumberland barony of Burgh-by-Sands, the terms were so favourable as to look like a bribe (an unsuccessful one, since he rebelled in 1215) – he owed the king 250 marks (£166. 13s. 4d.), but was required to supply only one knight for a year.67  But others were treated with some rigour.  Hugh de Balliol had to find two knights to fight overseas for a year, which could have cost him £73, in order to be cleared of a debt of eighty marks (£53. 6s. 8d.).68  William de St John undertook to supply ten knights for service overseas, the equivalent of £365, on top of his proffer of 500 marks for his father’s lands – the money was to be paid on his return from France.69  Hugh de Neville, who had been out of favour a year earlier, was in 1213 obliged to find twenty knights for a year’s service, in order to secure quittance of a fine of 1000 marks – such a settlement would have left him £63. 6s. 8d. out of pocket.70  He and several others were being required to pay more, and thus to provide more service, than was needed to cover their debts. 

(f) Resistance

It has been estimated that all the agreements of this kind made in 1213 would have raised enough money to provide John with the services of 150 knights and twenty serjeants for a full year.71  And because these bargains were made individually they represented a form of commutation which was settled independently of scutage, which in 1214 those involved were required to pay as well, at the unprecedentedly heavy rate of three marks per fee.  That rate was of course far lower than the one used in most of the settlements of debts devised by the king - the single knight’s service provided by Richard Gernun, at £36. 10s., was much more expensive than a parallel scutage in 1214 would have been, at £2 per fee, had he in fact owed it (he held his lands by cornage).  But for most of those affected by demands for scutage alone, the pressure which the king now exerted on his subjects, in his last and greatest effort to recover his continental lands, became increasingly hard to bear, the more so because John’s money-raising devices seem to have had the effect of removing a great deal of coin from circulation – it became literally difficult to find the cash which the king so persistently demanded.72 

At first John was still able to enforce payment of scutage, but his defeat at Bouvines encouraged widespread resistance, and though receipts should have totalled £6353. 16s., only just over £1400 had been collected by Michaelmas.73  And actual service was refused by a number of the northern magnates and knights, standing by an assertion of the previous year that they were not obliged to serve outside England.74  In strict law the claim was of doubtful validity, but it voiced a widespread reservation, found in many parts of western Europe, against performing military service outside the country, and indeed away from homes that might need to be defended.75 The objections voiced against overseas service in the late 1190s had more localised counterparts in the assertion made by the knights of the honour of Hastings in 1211 or 1212 that they owed no service outside the rape unless their lord carried the cost, and in the Magna Carta of Cheshire, issued in the late summer of 1215, which conceded that the earl of Chester’s knights owed him no service `beyond Lyme ... except with their consent and at my expense ...’.76 

Alexander of Swerford, a clerk who was employed in the exchequer during John’s reign, and who later compiled its `Red Book’ as a work of record and reference, believed that the 1214 scutage was the principal cause of rebellion against the king.77  That may have been an exaggeration, but it seems clear that in 1214 resistance to demands for service and scutage combined to form an important strand of opposition.  The changing nature of warfare meant that impositions of scutage affected depths in landowning society which summonses to perform military service seldom reached, with the result that behind the magnates, lay and ecclesiastical, stood large numbers of disaffected sub-tenants, free landowners of every rank, united in their hostility to the king’s continuous demands.  But the resentment of lesser men would in itself have been insufficient to secure a clause in Magna Carta, had not the tenants-in-chief not only given a lead, whether in response to their own grievances or to those of their tenants, but also had a particular need for the redress that Clause 16 promised them.  The issue of service was one concerning which the tenant-in-chief had very limited options when it came to obtaining relief.  The sub-tenant whose lord was trying to exact more services than were owed could obtain a writ of ne vexes instructing the lord to desist from his demands, and by extension threatening him with action by the sheriff if he did not comply.78  The issue of right could then be determined by the grand assize, by a jury of twelve knights.  Such, for instance, was the recourse of Bernard FitzWilliam, in an action against `Countess Eve’(i.e. Aífe, the widow of Richard FitzGilbert de Clare, `Strongbow’), who he claimed was demanding excessive service and customs (superdemanda servicii et consuetudinum) from a virgate of land which he held of her in Weston, Hertfordshire.79 It is possible that the countess was trying to pass on a royal demand for scutage, on terms which Bernard found unacceptable, and that this was his preferred option for obtaining justice.  But no such remedy was available to Eve herself, if she believed that the king was requiring more from her in the way of services than she owed.80 

The tenant-in-chief who was confronted by an over-exigent king, and who did not choose to resist or rebel, could attempt to buy relief, or he could appeal to the king as the fount of justice, though in the latter case he must have known that access to the royal conscience was usually gained only by way of the royal purse.  Clause 16 in effect registered an appreciation that by 1215 such recourses had become no more than a matter of robbing Peter in order to pay Paul.  Expressed in broad and general terms because the king’s rights where military service was concerned were themselves broad and general, it articulated a widespread opinion that John’s exploitation of those rights had become intolerable.  The only plausible cure for the practices involved was therefore their prevention, even though it proved impossible to define with precision what was being prohibited.  

Citation

Amercements: impact and meaning

The drafters of Clause 20 probably had in mind clause 8 of Henry I’s coronation charter, which had promised an end to the practice whereby under William I and William II anyone committing an offence had been obliged to offer all his moveable goods as a pledge for the resulting amercement, which in future would be exacted in proportion to the offence (secundum modum forisfacti).1  No such clause found a place in the `Unknown Charter’ drawn up early in 1215, even though it shared a good deal of common ground with Henry I’s charter, but a version of Clause 20 appeared as Article 9 among the Articles of the Barons.  The immediate context of both was the same, in that each followed a clause concerned with the hearing of assizes, and then formed part of a short sequence dealing with the imposition of amercements – perhaps the fact that judicial proceedings generated a great many amercements made this arrangement seem appropriate.  But there were also differences between Article 9 and Clause 20 which, although small, are still important, and show how concerned the draftsmen of the Charter could be to achieve clarity and precision.  

In terms of presentation, the Clause differs from the Article in being formulated as an emphatic negative.  It states what is not to be done, whereas the Article confines itself to setting out what ought to happen.  Where content was concerned, both Article and Clause gave space to others besides the free men to whom the benefits of Magna Carta were usually reserved.  The inclusion of merchants was probably a concession intended to benefit the city of London, and incidentally other urban communities as well, by ensuring that no traders, whatever their origins, who infringed English laws and customs, were so heavily penalised as to endanger their capacity to import wholesale the valuable goods whose sale by retail was monopolised by Englishmen.  The appearance of this provision at the end of the Article may show that it was a last-minute addition, and as such it probably had the effect of blunting the force of the other two provisions, and especially the one which (uniquely in Magna Carta) protected the livelihood of villeins.  The latter was not included out of any tenderness for the rights of the unfree, but rather to complement the safeguards provided for those of their lords, the free men with whom both Article and Clause commence.  Not only were free men not to be amerced to the extent of endangering their livelihoods (contenementum – a word expressive of status as well as material resources), but care was also taken to ensure that serfs were not subjected to demands which might have had the effect of making their masters’ estates unviable.  When Article 9 was revised as Clause 20, the sub-section dealing with merchants was placed after that relating to free men, to whom, indeed, they were closer in status, while the one relating to villeins came third, with an additional phrase which effectively spelt out their continuing subjection by making it plain that they – and only they - were to be protected solely against the excessive demands of the king, and not those of their lords (this is made especially clear in the French version of the Charter).2  A discrete concluding sentence laid down that in every case amercements were to be assessed by trustworthy neighbours, acting under oath.

The word `amercement’ seems to have been originally applied to the process of assessment whereby it was decided how much someone whose wrong-doing had placed him in, or more idiomatically at, the mercy of his lord, should pay to redeem his offence.  But during the twelfth century the process of assessment was elided with the penalty which resulted from it, so that an amercement became the term conventionally used to define a monetary penalty.3  Today it would be called a `fine’, but in medieval England a fine represented a deal struck between two (or more) parties – in fiscal terms it was the sum which a petitioner, litigant or offender agreed to pay in order either to bring proceedings to an end or to obtain a favour or benefit – release from custody, for example.  Nominally, at least, there was an element of negotiation about a fine, whereas an amercement was effectively an imposed punishment, limited in its amount only by undefined custom and by the means of the offender. 

Offences and punishments

Many of the largest debts incurred by the subjects of the Angevin kings took the form of fines, having been agreed upon, whether or not under duress, in the king’s dealings with the person or community concerned.  Amercements were overwhelmingly levied in courts.  Any lord with a court could use it to impose amercements for offences against the peace or the by-laws, but in most such courts both misdeeds and penalties were relatively insignificant.  The king’s courts, with their well-nigh limitless jurisdiction, were potentially a very different matter.  According to the early twelfth-century treatise Leges Henrici Primi, the offences which placed a man in the king’s mercy included treason, coining, rape, the slaying of royal servants, and `manifest theft punishable by death’,4 all of which could entail the severest physical punishment for those convicted of them, while the author of the Dialogus de Scaccario, writing late in Henry II’s reign, maintained that even the smallest offence putting someone `in the king’s mercy’ could lead to the offender losing all his moveable goods, while serious crimes could result in the loss of lands, limbs and lives.5 

In fact, although serious crimes continued to be punishable by death or mutilation, the royal courts throughout the twelfth century commonly preferred to impose financial penalties for offences against the king’s majesty.  The sums involved could, however, be substantial.  Although amercements are rarely distinguishable from fines in the pipe roll for 1130, it would appear that the former included payments of seven marks for concealment of a thief, ten marks for making a statement which could not be proved, and twenty, forty and even 100 marks `for breach of the peace’, along with murder fines (amercements despite their name) on communities, which could amount to twenty, twenty-five, thirty, and in one case sixty marks (though this last fine was pardoned), while then as later the penalties for offences against the king’s forest were severe, with amercements of 100 marks being imposed `for the plea of a hind’ and 200 marks for `a plea of a stag’.6  During the reign of Henry II that king’s legal reforms saw a general flattening-out of the level at which amercements were imposed.  Very large numbers of people came within the orbit of his courts, and especially the eyres held at increasingly regular intervals by justices itinerant, where they were placed in the king’s mercy, both as individuals and as members of communities, for every kind of legal shortcoming and procedural infringement.  A typical example of the result is provided by the recorded issues of the 1194 Yorkshire eyre, which shows the sheriff accounting for £68. 13s. 4d. made up of undifferentiated `little amercements’, after which there comes a huge mass of individual entries, extending over several pages in the printed edition.  Imposed for default, for failing to prosecute, for making a false claim, for failing to produce the person pledged, and for all the other minor offences which came within the cognizance of an eyre, they include just one amercement of 40d., for infringement of the assize of wine (probably the sort of `little amercement’ usually accounted for within the sheriff’s lump sum), otherwise it is clear that except for the very poor, 6s. 8d. had become the standard minimum rate, and also the sum by far the most commonly demanded.  It was increased to 10s. or 13s. 4d. in numerous cases, with multiples of these figures being levied on serious offenders or the better-off, but it became relatively unusual for more than £5 to be taken.

Unusual but not unknown.  Although there was a steady trend towards many more but smaller amercements, it would not be true to say that larger sums were never exacted.  The threat of total forfeiture persisted under Henry II – in 1164, according to William FitzStephen, Thomas Becket complained that he had been treated unjustly in being condemned to be in the king’s mercy, and so `to lose all his movable goods’ (in poenam pecuniariam omnium bonorum mobilium)7 – and some very heavy amercements were imposed.  In 1170 the failure of the men of the Isle of Wight to appear before the king’s justices cost them £100,8 and when in 1172 five men were amerced for at first denying having any of the abbot of Hyde’s chattels and then admitting that they had them, one man was charged with 26s. 8d., a second with 40s., and two more with £13. 6s. 8d. apiece, while Ralph the cook was required to find £100.9  Four years later the abbot of Peterborough was recorded as owing 200 marks `for the man whom Peter de St Medard killed’,10 and in 1185 a default on the part of the earl of Gloucester’s steward cost him fifty marks.11  Peter son of Adam, because he ignored a summons to attend the chancellor on the king’s business, was amerced of £100 in 1192,12 while William of Holme, who released a suspected killer to pledges and seemingly kept no record of the latter’s names, was required in 1194 to pay £46. 10s. 10d. for his deficiencies.13  Retribution following the great rebellion of 1173/4 included an amercement of 500 marks upon Gospatric FitzOrm `because he surrendered the king’s castle of Appleby to the king of Scots’,14 and more typically, offences against the king’s forests also continued to be severely dealt with – in 1176 four Yorkshire barons were amerced of £100 each pro foresta, while Herbert FitzHerbert had to pay as much as 500 marks for a like offence in Hampshire.15 

Processes of assessment

No later than the 1160s the justices could take local advice as to how what must sometimes have been serious offences should be punished, though they do not always seem to have accepted it.  In 1168 it was recorded that Samuel the priest of Pilton, Somerset, had earlier been amerced of 100 marks before William FitzJohn, an experienced royal justice, after being initially been assessed (admensuratus) at forty marks by his neighbours – per sacramentum vicinorum suorum.16  FitzJohn probably regarded Samuel’s unidentified offence as meriting a heavier punishment, but he clearly ignored, as the assessors presumably did not, the question of whether the priest could actually afford to pay such a sum, and in the end the king pardoned Samuel £40 of his debt on account of his poverty (he paid the remaining £20 within the next five years, suggesting that his `poverty’ was in fact a somewhat relative condition).  As the number of amercements increased, and with them their contribution to the king’s revenues, so the issue of their assessment, in relation both to the offences for which they were imposed and to the means of the offenders who were being punished for them, became more pressing.  That a financial penalty should be proportionate to the offence was a principle to which Henry I’s charter of 1100 had paid lip service, and it was also upheld by both Roman and canon law.17  But although it has been observed that the term delictum, as used in Clause 20, and here translated as `offence’, was being employed in the same sense by the learned law of the twelfth and thirteenth centuries, the latter’s influence was probably slight.18  By the 1180s there are clear signs in the emergent literature of English common law and exchequer procedure that thought was being given to questions of proportionality, thought which without any discernible reference to the teachings of the learned law went some way towards anticipating Clause 20 of Magna Carta..   

Thus when the treatise known as Glanvill, written in the last years of Henry II’s reign, discussed the aids which lords could demand from their free tenants, and also the penalty for encroachments on the king, seemingly by tenants-in-chief, it placed limits on what could be required, in both cases so as to safeguard for those affected the property that they needed to enable them to maintain their status – their contenementum, the same term used in the Charter.  In the latter case, moreover, any amercement was to be assessed `by oath of the lawful men of the neighbourhood’ – per iuramentum legalium hominum de visneto, a phrase strikingly close to the one used in the same context by Magna Carta (per sacramentum proborum hominum de visneto).19  Another treatise, the Dialogus de Scaccario, which was perhaps written a few years before Glanvill, described in a passage full of praise for Henry II how the king’s justices itinerant `spared the labours and the possessions of the poor’,20 and in later chapters devoted to the processes of distraint for the payment of amercements (pena ... pro excessu), it placed certain limits on the goods that might lawfully be taken, and in addition prescribed that a knight was always to be allowed to keep a horse, to enable him to retain his status (dignitate).  If a knight was a true fighting man, moreover, he was to be entitled to keep his weapons as well as his mount, so that he could still maintain the dignity of knighthood.21  Contenementum implied social rank as well as wealth;22 the Dialogus, in describing the government’s pursuit of the latter, showed as much concern as Clause 20 to uphold the former.

Clause 20 had a multiple focus, upon the size of the amercements imposed by the king and his agents, on the effects these might have on those subjected to them, and on the manner of their assessment.  The Charter accepted that serious offences might merit weighty punishments, and expressed concern only that amercements should not be so heavy as to ruin offenders, either socially or economically.  Subject to that restriction, the king’s traditional power to require any payment he chose for admission to his mercy remained to outward appearances untouched.  That power was, however, called into question by the Clause’s last sentence, laying down that all the amercements referred to were to be imposed by the oath of honest men of the neighbourhood.  The imprecision is striking.  The great men of the realm, the earls and barons, secured the insertion of a clause (no. 21) specifying that the assessment of their amercements was to be reserved to their peers, but no such provision was made for their social inferiors.  Possibly the drafters of the Charter felt unable to devise a formula which simultaneously covered free men, merchants and villeins.  It must have been assumed that although local worthies, whatever their social level, might sometimes choose to uphold communal values by imposing stiff penalties, the overall effect of their decisions would be to keep amercements down; when the men of Dunwich secured a charter from King John in 1200 which included the privilege of separate representation by a jury of twelve men before justices itinerant, and the accompanying concession that should this jury incur an amercement, the sum was to be decided upon `by six trustworthy men of their borough, and by six trustworthy men outside the borough’,23 the underlying presumption was certainly that this would result in smaller payments at future eyres. 

There had been attempts before 1215 to limit the size of amercements, or at any rate to create conditions in which they could be controlled.  Less than a decade earlier the North Yorkshire baron Peter de Brus had issued a charter for the knights and free tenants of Langbaurgh wapentake, in which he conceded that amercements were to be assessed in accordance with the means, as well as the offence, of the transgressor.24  (He did not say who was to make the assessment, though presumably men attending the wapentake court would have been involved.)  A number of boroughs had secured charters during the twelfth century which set specific limits on the amercements which could be imposed in their courts,25 but there is nothing to suggest that such privileges were intended to protect their citizens against the demands of the crown.  London’s royal charter of the early 1130s had declared that no Londoner was to be amerced of more than 100s. (still a substantial sum), but although this was effectively confirmed by Henry II when he granted that no citizen was to be `fined at discretion except according to the law of the city which they had in the time of King Henry my grandfather’,26 that did not prevent William son of Isabel from being amerced of 1000 marks (£666. 13s. 4d.) in 1185, for offences which included taking a bribe to allow a suspected forger to be released to inadequate pledges.27  William’s transgressions may well have been serious, but the size of his amercement probably owed more to his wealth – a financier and property-owner, he was one of London’s sheriffs at the time28 – than to his misdeeds.  A panel of neighbours could have been expected to deal less harshly with him, and indeed, where poor people were concerned the king’s government seems to have been content to leave the task of assessment to the judgment of their peers, as, indeed, they did in London itself; when the disturbances provoked by William FitzOsbert were punished in 1196, according to the chronicler Ralph de Diceto, `the poor gave adequate satisfaction according to the assessment of the neighbours’ (pro vicinorum arbitrio).29

The range of penalties

It was not, however, the crown’s demands upon the poor that the drafters of Magna Carta were primarily concerned to control (the king and his justices did in fact on a few occasions remit amercements entirely because of an offender’s poverty).30  The king’s power to amerce, as already noted, was in theory subject to few limits, and inevitably it was principally directed against such of the rich and powerful as he wished either to exploit or dominate.  The most spectacular payments exacted from their subjects by the Angevin kings of England took the form of fines, but amercements, too, had an important place in the armoury of casual and supplementary payments (in accidentibus, plus in accessoriis ...) with which, as Gerald of Wales observed, Henry II and his successors compensated themselves for shortfalls in more conventional revenues.31  Clause 20 distinguished between small and large offences, and ordered that each should be punished in accordance with its magnitude.  The king’s justices no doubt decided on the seriousness of an offence, and on the punishment it merited.  Where the penalty took the form of an amercement, to leave its assessment to royal officers was to invite oppression and extortion, and indeed, the very fact that Clause 20 also stipulated that amercements should be assessed by neighbours, in line with the practice described by Glanvill and recorded in the early years of Henry II’s reign, underlines the extent to which the king and his agents had by the early thirteenth century come to control the consequences of judgments in royal courts.  Without the safeguard provided by the Clause, the weight of those judgments, which could at any time be heavy under Henry II and Richard I, eventually became still more so, in both scale and frequency, under John.

The process was a slow one, however, and charting its development is made more difficult by problems of definition.  For much of his reign John raised much more money by fines than amercements, but fines could themselves be the products of amercements, since men and women could find themselves in the king’s mercy and then bargain to be released from it.  They could also make agreements to reduce their amercements, presumably either because the latter had been set too high or because the king preferred to take whatever money was available rather than wait for more at a later date.  In 1208, for instance, three Yorkshiremen who had been amerced at a total of £206. 13s. 4d. for forest offences agreed to pay £100 and a palfrey `for having quittance of the aforesaid amercements’, and then paid their revised debt within twelve months.32  What their initial transgression had been it is impossible to say – the records speak only of `default’, a term of wide application – and this highlights a further difficulty, that of assessing the seriousness of offences on the basis of records which were usually more concerned to register debts than to provide an explanation for them. 

There were certainly occasions when substantial amercements arose from what appear to have been serious misdeeds or from actions which any king would have wished to punish severely.  For instance, the large sums which in 1198 were imposed on individuals and communities in East Anglia for sending corn to the king’s enemies in Flanders, in some cases amounting to hundreds of pounds, could be justified by the offenders’ having in effect tried to frustrate a vital strand in Richard I’s foreign policy.33  The amercements imposed on the abbots of Malmesbury and Stanley and the archdeacon of Dorset, of 100 marks, sixty marks and twenty marks respectively, which are recorded on the fine roll as having been imposed in 1201 `for contempt of the king’s court’, can be seen to have resulted from a summons to attend the coram rege court to face a charge of hearing a plea in Court Christian concerning tithes allegedly due from a royal serjeanty.  They had neither obeyed the summons nor offered excuses (`essoins’) for their non-attendance, and though their punishment may have been harsh, it was not incomprehensibly so.34  It is at least possible that Geoffrey Salvage, who in 1204 paid an amercement of 200 marks `for his custody of Woodstock’, on condition that he accounted for his outlays and receipts, had been seriously incompetent, or dishonest, in his management of an important royal manor.35 

But it was in any case accepted that the rich should pay more than the poor, either in contributing to a common amercement or when being assessed individually.  When in 1180 the burgesses of Colchester incurred a heavy amercement for releasing a thief (indisputably a serious offence), amounting in all to £93. 13s. 4d., it can have aroused no surprise that the range of the seventeen amercements imposed on individuals was wide; one man paid as much as twenty-five marks, and three contributed twenty marks each, but four gave only one mark apiece, while a single payment of five marks came from all the other burgesses of the town acting together.36  Most recorded amercements were imposed before royal justices, and these show a consistent pattern, for most of John’s reign, of many small sums interspersed with occasional much larger ones.  The proceeds of the 1203 Yorkshire eyre, for instance, were recorded as consisting of a single lump sum accounted for by the sheriff, a total of £924. 10s. 5d. which would have been largely made up of the amercements imposed on humble people, no doubt involving sums too small to be regarded as worth recording separately, and then a considerable number of individual amercements owed by communities and individuals, mostly of sums between 6s. 8d. and 20s., but including a small number of much larger debts, exacted either for offences which were regarded as unusually serious or simply because those upon whom they were levied had the means to pay them.  This last category included such penalties as the £200 exacted from the township of Beverley `for badly kept measures’, the sixty and eighty marks owed by Mauger le Vavasur and Otto of Barkston respectively `for concealment’, forty marks due from William of Marton, presumably a coroner, `for a badly kept roll’, and sixty marks charged against Hugh FitzGernegan simply `for an amercement’ (de misericordia).37

King John was an exceptionally mobile ruler, who often heard lawsuits in the course of his travels.  Some of the actions he heard involved important people or serious matters, and might lead to substantial amercements, but overall the financial issues of his sessions long resembled those of his justices.  Probably during September 1207, for instance, proceedings `in the king’s eyre in Dorset and Somerset’ resulted in a total of sixteen amercements, eleven of them of 6s. 8d., one of 20s., one of 40s., one of £5, one of £20 (`for disseisin’), and one, on the Dorset knight William of Whitfield, of 200 marks (£133. 6s. 8d.) `for default concerning Swyre church’, a sum which an act of royal grace promptly reduced by half.38  In the previous year John had been in Yorkshire, where `amercements by the king’ were charged against the heads of a number of religious houses `for disseisin’; the sums involved ranged from ten to forty marks, of which the latter, upon the abbot of Sawley – a house far less prosperous than Roche or St Mary’s, York, whose abbots were both amerced of twenty marks - was then pardoned by the king who had imposed it.39  Though not massive, these were larger than average amercements (when John was in Yorkshire in 1205, the recorded issues of his `eyre’ there consisted entirely of sums between 6s. 8d. and 20s.),40 exacted from important people.  

The king’s caprice could doubtless always decide the size of an amercement, and custom also accepted, if grudgingly, that the penalties demanded for infringements of forest law might be arbitrarily determined, since the forest was `subject to the sole judgement of the king or his specially appointed deputy’, and subject to laws `based on the will of princes.’41  Amercements for forest offences could certainly be heavy under John, but so they had been under his predecessors, and under any king they could be cancelled or reduced as readily as they had been imposed.  In 1206, for instance, the abbot of Furness in Lancashire was recorded as owing 200 marks and two palfreys to be quit of the 500 marks `with which he was amerced out of the king’s mouth (per os Regis) concerning the forest ...’.42  The pattern for the penalties imposed at a forest eyre was very similar to that of an eyre for common pleas. After forest justices had visited Yorkshire in 1208, for instance, the pipe roll recorded the sheriff as accounting for nearly £190 in undifferentiated amercements, and then listed a number of mostly modest debts, among which sums the thirty marks owed by Robert de Stuteville and the fifty marks owed by William Fairfax stood out.43

How all these amercements were assessed is unrecorded.  Many, as the well-nigh unavoidable punishments for infringements of regulations, property disputes and brawls among neighbours, were probably automatically imposed at what were effectively standard rates, with the wealthy paying somewhat more than the rest to make up for what could not be extracted from the poor, and larger amercements being imposed on hundreds and wapentakes in proportion to their size and prosperity.  A whole county naturally paid more still – in 1202, for instance, Westmorland paid a common amercement of sixty marks `for concealment’,44 while in 1203 a similar offence cost Lancashire 100 marks45 – and as already seen, large amercements could on any occasion be imposed on men (and, indeed, women – the dowager countess of Clare was amerced of forty marks for disseisin by the king in 1206)46 of substance.  For these the justices, or the king, no doubt took advice, as William FitzJohn had done, from men of the county, who, however, were probably more likely in such cases to be royal officials than freely-chosen representatives of their communities, large or small. 

Turning the screw: the `autumnal justices’

Royal justices of all kinds, not to mention the king himself, descended on the English shires almost every year during John’s reign, and their constant demands must have made the price of justice feel decidedly weighty.  That it did not seem intolerable was probably because it was so widely diffused, and also because the king’s largest exactions still took the form of fines, which retained the character of freely-negotiated agreements; amercements, by comparison, were still relatively modest in scale.  That may have begun to change in 1209, when a further forest eyre in Yorkshire – the king was engaged in an active campaign to recover lost forest rights there during these years - resulted in the sheriff accounting for only £10. 17s. 3d. in undefined amercements, but more and larger demands being made on individuals.  Adam of Staveley was amerced of £40 and two palfreys (in effect another ten marks), Robert le Vavasur and Robert de Stuteville of 100 marks each, the abbot of Whitby of £62. 14s., Guiomar son of Warner of £50, Gilbert of Acton of fifty marks, and there were numerous other amercements involving sums that were not much smaller.47  Ordinary eyres in this year were less exacting in purely fiscal terms, but in some cases suggest that the net for the king’s demands was now being spread very widely indeed.  The sheriff of Lincolnshire accounted for only about £90 (the manuscripts conflict as to the exact sum) in amercements, but in doing so he presented a startling 641 tallies,48 suggesting that money was being taken from almost anybody who had some, often in tiny amounts.  It is also noticeable that a large number of the individual amercements, usually of modest sums, which were recorded on the pipe roll were entered without any reason being given, as if it had ceased to matter why those affected had come to be in the king’s mercy.

Then in 1210 King John and his agents threw restraint to the winds and without any apparent concealment began using judicial visitations simply as a means of raising money, and perhaps also instilling discipline, through substantial amercements which were commonly imposed on decidedly nebulous grounds.  Little can be said of the men appointed to serve as `autumnal justices’ (as they are commonly called - in fact they circulated in high summer, and `harvest-time’ would be at least as appropriate an epithet) except that they appear to have been of only local standing, chosen essentially because they could be expected to know about the means of the men they were required to target.49  They visited most of the counties of England, and imposed penalties on individuals – never on communities - which were few in number, by comparison with those resulting from ordinary eyres -  but often considerable in amount.  The justification for them in a large majority of cases (eighty-eight out of 104) was an undefined `trespass’, though procedural deficiencies - `false speaking’, for instance, or failure in attaint (that is, failing to prove that a jury had given a false verdict) – were also sometimes cited.50 

Not everybody penalised by these visitations can be identified, but the evidence strongly suggests that the targets for this fiscal onslaught were less the great men of the realm than the important men of the shires.  A very few were minor barons or of near-baronial rank.  John le Vicomte (amerced of sixty marks) was lord of the modest Northumberland barony of Embleton,51 and William de Montagu (fifty marks) was a minor tenant-in-chief in Somerset who was related to the barons of Chiselborough,52 while Richard Engaine (£200 and four fox-hounds), held a serjeanty in Cambridgeshire and around 1215 inherited half the Northamptonshire barony of Bulwick through his mother.53  Others were royal servants.  Roger de la Dune (200 marks) had been constable of the Tower of London,54 and Richard of Seething (200 marks)55 and Alexander of Pointon (100 marks)56 both acted as justices itinerant, while Gilbert of Abinger (100 marks) and Gilbert Prodome (fifty marks) held assizes in Surrey in the same year that they were themselves amerced for `trespass’ there.57  Henry of Cobham (thirty marks), a member of a rising Kentish family, was the beneficiary in 1208 of an extended royal charter confirming him in his estates,58 and had clearly also gained from his employment by Reginald of Cornhill, one of John’s leading agents, so much so that after his patron’s death in 1209/10 he proffered 1000 marks `for having the king’s benevolence’.59 

Many of those amerced in 1210 were knights who served as electors or jurors of the grand assize – the five Cumberland men amerced of a total of 260 marks all acted in this capacity60 – and others carried out other judicial or administrative functions as well.  William Puignant (sixty marks), was a knight of the grand assize in Kent, where in 1212 he was also one of twelve knights summoned to investigate whether Archbishop Hubert Walter had died possessed of Shirley moor.61  In the latter year Robert le Vavasur (100 marks), a knight of the grand assize in Yorkshire, was recorded as one of a group of knights – they also included Alan of Wilton (100 marks) - appointed to act for the sheriff in holding pleas in Yorkshire county court.62  Philip of Burnham (forty marks), a knight of the grand assize in Norfolk, was a commissioner appointed in 1213 to investigate the losses suffered by the church in the diocese of Norwich during the interdict.63 

A number of the men targeted by the `autumnal justices’ were tenants-in-chief, admittedly sometimes in a very small way – Henry de Furnell (£100) held a third of a fee in Devon,64 Roger de St John (sixty marks) two thirds of a fee in Oxfordshire.65  Such men and others who did not hold directly from the crown might nevertheless be substantial landowners by reason of mesne tenures which also linked them to men greater themselves.  In some cases these were ecclesiastical magnates.  Guy of Helbeck, Westmorland (sixty marks), was a tenant in Otterington, North Yorkshire, of part of the bishop of Durham’s barony of Allertonshire,66 and Joscelin of Walpole (200 marks) held a number of estates in East Anglia from the bishop of Ely,67 while Richard of Gosfield (sixty marks) was several times recorded as appearing in court on behalf of the abbot of Bury St Edmunds.68  Others held of secular barons.  Thus Fulk Baynard (sixty marks) held eight and a half fees of Robert FitzWalter,69 Thomas of Astley (sixty marks) was a tenant of the earls of Warwick,70 and Gilbert Prodome held one fortieth of a fee of the Say barony of West Greenwich.71 

The motives behind this campaign of financial oppression are made harder to fathom because a significant proportion of many amercements was pardoned.  Among those recorded for Norfolk and Suffolk, for instance, nearly all on the grounds of unspecified `trespass’, Richard of Seething was only required to pay half of what he owed, which he did in the following year, and Alexander of Dunham likewise paid only half his amercement of 100 marks, while Richard of Gosfield was pardoned twenty out of sixty marks.  Fulk Bainard, on the other hand, was granted no such remission, while Joscelin of Walpole had paid all his 200 marks within a few months.72  The largest single amercement arising from the entire circuit, one of 500 marks upon the Northamptonshire landowner (and future sheriff) Henry of Braybrooke, was swiftly reduced to 300 marks by a royal writ.73  But even when they had been reduced by a third or a half, the amercements imposed by the `autumnal justices’ were still heavy, and perhaps felt heavier still because the offences for which they were imposed commonly merited much lighter penalties.  Braybrooke’s alleged offence, like that of many, was defined only as `trespass’, a vague term which was indeed sometimes used to justify a heavy penalty – in 1206, for instance, `trespass’ cost the town of Ipswich 100 marks before the king himself74 – but more often implied only a minor transgression. 

Responses to oppression

The justices’ record of the financial issues of the 1202 Lincolnshire eyre shows that `trespass’ was commonly the term employed to describe the peccadilloes of local officials, whose shortcomings in failing to hold an inquest, producing the first finder of a corpse, failing to have a view made of disputed property, or arranging without permission a settlement between a woman and the man she had accused of raping her, usually cost them 6s. 8d. or 13s. 4d. each.  The same was the case when `trespass’ was applied to offences by communities or private individuals.  It was the transgression of two men who admitted conniving at the shaving of a prisoner’s head so that he could enjoy benefit of clergy (it cost one of them two marks and the other 6s. 8d.), and of a tithing which had buried a corpse before it had been viewed by a coroner or serjeant – it had to pay £2.75  The exception to this rule was Walter of Beelsby, seemingly the serjeant of a wapentake whose `trespass’ cost him fifty marks, after he had been twice put in mercy for different offences (it was in fact the first of these – failing to prosecute – which was entered on the pipe roll).76  The justices probably felt that his misdeeds were serious enough to call for severe punishment, and also that he could afford to pay a larger than average sum.  

Even after his initial amercement had been cut by forty percent, Henry of Braybrooke’s remaining debt of 300 marks thus constituted a much heavier penalty than anything usually imposed for `trespass’, and the same was true of most of the amercements imposed by the `autumnal justices’.  These certainly had their place in John’s efforts to maximise his revenues, but they were probably not only intended to raise money.  Rather they represented the intensification of a campaign of exploitation and control, undertaken at a time when John’s domination of the whole of the British Isles was approaching its peak   They were not aimed at the highest echelons of English society, whose members had for years been exposed to John’s exactions through the fines demanded of them for succession to their inheritances, marriages, wardships and the like, but rather at a level of society which the king may well have felt had hitherto been insufficiently exploited. 

The men singled out for amercement in 1210, it may be suggested, were those whom Bracton shortly afterwards referred to as buzones, defined as `the greater men of the country ... on whose nod the views of the others depend ...’.77  Such men had indeed contributed indirectly to scutages and directly to taxes like the thirteenth of 1207, and they had been repeatedly hit by the demands of the king’s justices, but the amercements usually imposed by the latter were seldom substantial.  In what is now TNA, JUST 1/1039, for instance, the record of proceedings in Yorkshire in four separate sessions between 1202 and 1208, the lowest amercement was 6s. 8d., but the highest on an individual was only 40s. (the township of Richmond had to find 100s. for failing to prosecute a homicide properly).78  In a few cases, moreover, amercements were pardoned altogether because of an offender’s poverty.  By the time John’s affairs approached their crisis, it may be surmised, he had come to see such visitations as representing a missed opportunity, financially.  But it was typical of John that he should also have tried to make political capital out of his own demands, by softening the blow somewhat for those he regarded as his friends, or perhaps by reminding those affected of the benefits which might result from his friendship for those who enjoyed it (and of course of the disadvantages which followed for those who did not). 

If such was the king’s policy, it cannot often be shown to have had the desired effect – it is far more likely to have angered those who were hit by severe amercements for ill-defined offences, while those who were still obliged to pay half or two thirds of considerable sums are unlikely to have felt particularly grateful for not being required to pay even more.  In the case of William de Perci (100 marks), the king’s ability to intervene on William’s behalf in a family property dispute was probably sufficient to retain his allegiance,79 while in 1217 it could be said of the Gloucestershire landowner Adam FitzNigel (thirty marks) that he `is and was faithfully and constantly in our fealty and service’,80 but among those whose loyalties can be traced such men were unusual.  In Northumberland, for example, John Vicecomes (sixty marks) and William Maulovel (thirty marks) both rebelled,81 as did Simon of Driby in Lincolnshire (£100, half of it pardoned),82 Walter de Abernun in Surrey (100 marks),83 Richard of Stitchcombe in Wiltshire (fifty marks, thirty of them pardoned),84 Robert le Crevequor in Kent (100marks),85 and Wymar of Bassingbourn in Cambridgeshire (100 marks, sixty of them pardoned).86  Among those already mentioned, Fulk Bainard, William de Montagu, Richard Engaine, Alexander of Pointon, Robert le Vavasur, Alan of Wilton, Joscelin of Walpole and Thomas of Astley all joined the king’s adversaries, as did Henry of Braybrooke, who had joined their ranks by November 1215.87 

Persistence and resistance

By 1215 men like Braybrooke had been subjected to still further demands by the king and his justices.  The visitation by the `autumnal justices’ was followed later in 1210 by a circuit akin to a conventional eyre headed by Richard Marsh, one of John’s leading councillors, and this was itself then followed up, probably in 1211, by sessions held by other justices who amerced at least some of the men convicted either before Marsh and his associates or in the court coram rege which had continued to sit after the common bench was closed in 1209.  The amercements imposed in these subsidiary sessions were mostly small, and many of them were accounted for by sheriffs in often modest lump sums – just £24 from Bedfordshire and Buckinghamshire, for instance, and £58. 6s. 8d. from Nottinghamshire and Derbyshire,88 though as usual Yorkshire was hit harder, with the sheriff accounting for a total of £500. 6s. 8d. from what may have been three separate visitations.89  But there were also some large individual amercements.  In Lincolnshire, for example, Nicholas of Shelton owed £100, and four men were amerced of 100 marks apiece, while others were expected to pay sums ranging from fifty to eighty marks; each was recorded simply as accounting for an amercement – de misericordia – without any indication being given of their offence.90  Similarly in Buckinghamshire and Bedfordshire, Fulk of Hyde was amerced of 120 marks and Nigel of Caldecote of 100, while five more men were amerced of sums ranging from fifty to eighty marks, again with no reason being given.91 

In one case from 1211, however, the justification for fiscal punishment was made clearer (if still not ideally precise), when forty-eight Kentishmen were amerced `on account of the impress of the king’s seal’ (propter impressionem sigilli regis).92  Presumably some kind of falsification was involved, in what was undoubtedly a serious matter – forging the royal seal was a form of treason, and merited the severest penalties.  The amercements imposed came to 1150 marks (£766 13s. 4d.), a round sum which suggests that this was the initial punishment imposed either on the whole county or on a community within it, and then divided up between the people involved.  The divisions were anything but equal, however.  Two men – Reginald of Luddesdown and Geoffrey de la Dene – had to pay 300 marks each, but the next largest amercement was of only forty marks (in three cases).  Another three men had to find thirty marks apiece, while the remaining forty were amerced of sums between twenty marks and 26s. 8d.  A large proportion of the entire sum had been paid by Michaelmas 1214.  The pipe roll contains nothing to suggest how the division of this amercement was made, or by whom, but the king’s (unnamed) justices must have been closely involved, and if they took advice from local men it may well have been concerning the means of those involved in the offence against the king’s seal, rather than their relative culpability  It is undeniably possible that Luddesdown and Dene were regarded as the ringleaders in some enterprise of falsification, obliged to pay large sums to save their lives, but it seems just as likely that they were targeted because they were the richest among those concerned in the transgression – Luddesdown was lord of the manor of Great Buckland, near Rochester,93 while Dene was another former employee of Reginald of Cornhill, and as such wealthy enough a year earlier to proffer 700 marks for the king’s good will.94 

The evidence for the years immediately before Magna Carta is less than ideally full – the pipe roll for 1213 is lost – but it seems clear that although John showed himself to be intermittently aware of the resentment his financial demands was arousing, heavy amercements continued to be imposed.  Perhaps inevitably, Yorkshire was the county hardest hit.  A case heard in the court coram rege concerning an appeal of theft which led to a duel being waged in Yorkshire county court resulted in amercements totalling £361. 13s. 4d. being imposed on the knights who held the plea in the sheriff’s absence; two men were amerced of £100 each.95  They may well have mishandled the case, but the penalties seem unduly large.  Among those required to pay smaller sums were Alan of Wilton (fifty marks) and Robert le Vavasur (twenty marks), who had been amerced by the `autumnal justices’ in the previous year.  In the same year the communities of Yorkshire were penalised by a forest eyre.  The whole county had to pay £200 `for trespass’, as did the city of York and town of Beverley (the latter was pardoned).  Scarborough was amerced of £100, but pardoned fifty marks, but there was no pardon for Ainsty wapentake (200 marks), the soke of Snaith (£100) or Doncaster (£40).96  Forest eyres in other counties do not appear to have resulted in individuals and communities being subjected to large fines and amercements, but the sums accounted for by some sheriffs - £358. 17s. 6d. from the relatively poor county of Cumberland,97 for instance - show that these visitations must still have been cumulatively burdensome.  By 1214 the exchequer’s fiscal apparatus was beginning to break down, but it could still record amercements imposed by the justiciar, Peter des Roches, in Sussex, which included one of £200 levied upon James FitzAlard (seemingly a leading burgess of Winchelsea) `for a false claim’98 – a substantial penalty for a commonplace offence.

Amercements, it has been said, constituted `the oppressive side of Angevin government’.99  They were always potentially burdensome, the more so because they were arbitrary in imposition and unpredictable in scale, and particularly when they arose from offences against the forest laws.  They began to seem insupportable, ultimately to the extent of giving rise to political resistance, when in around 1210 they started to take the shape of heavy exactions upon the well-to-do men of the shires, apparently targeted for what they were rather than for anything they had actually done.  The fact that little or nothing can be said of a number of the men upon whom the amercements of the `autumnal justices’ impinged, is perhaps a measure of the extent to which wealthy and influential families could put down roots in the shires, while remaining largely unconnected to and unaffected by the workings of the king’s government.  John’s desperate need for money may have made him anxious to exploit the resources of this level of society, but it was a reckless venture on his part, and one which risked, and eventually entailed, severe repercussions for his style of government. 

The justices of 1210 may have been local men, but as effectively royal agents they were not at all what the barons and their followers had in mind in 1215 when they demanded assessment of amercements by `trustworthy men of the vicinity’.  In the context of Magna Carta, `trustworthy’ was a loaded word, voicing the determination of the rebels to keep the king’s officers at arm’s length in the localities, while giving freer play to local and regional outlooks and responses.  Clause 20 was to apply to all the king’s subjects, free and unfree.  The very fact that the magnates found it necessary to insert a separate clause (no. 21) demanding special treatment, in the form of assessment by their peers, when they became liable to amercement, is one of the clearest signs of the pressure from levels of society below the ranks of the baronage which contributed to the formulation of Magna Carta.  And it also aspired to affect the whole of the king’s realm, making no exception for the royal forests, though this ultimately proved to be unachievable, and when a separate charter for the forests was drafted in 1217, the very severe penalties associated with the law of the forest were largely reinstated in it.100  But although the expectation that assessment by friends and neighbours would usually have the effect of keeping amercements down, and so of preventing the heavy exactions which John was taking in the years before 1215, was implicit in Clause 20, to outward appearances it left the king’s right to impose fiscal penalties intact.  The underlying purpose of the clause, it may be surmised, was to rebalance relationships between the king, his officials and his justices on the one hand, and the localities on the other, in favour of the latter.  When circumstances warranted, the crown could still, in theory (and occasionally in practice), exact large sums by way of amercements, but its need to act with local agreement severely restricted its ability to do so by employing what under King John had been effectively force majeure.

Citation

Context and deflinitions

Clause 21 had no counterpart among the Articles of the Barons.  In Magna Carta it was a follow-up to Clause 20, in which the latter’s basic principles, that people who were amerced – in modern parlance, fined – before the king or his justices should be penalised only in proportion to their offences and to their ability to pay, and that the sums levied should be assessed by their neighbours, were extended beyond the free men, merchants and villeins protected by that clause to a limited social stratum, that of earls and barons.  Clause 21 retained its predecessor’s stress on proportionality, but made no mention of the means of those affected, which may have seemed irrelevant, given that the clause affected many of the wealthiest people in the kingdom, while the assessors were defined in terms of social rather than geographical affinity – a transgressor’s peers, not his neighbours, were to rule upon the seriousness of his offence and upon the appropriate penalty for it.  It was not in fact new for barons, whether lay or ecclesiastical, who found themselves in the king’s mercy to be treated differently from the rest of the king’s subjects, but hitherto the penalties for their misdoings had been decided upon at Westminster, in the exchequer or by the king himself.1  Magnates who were dissatisfied with their treatment there, but were unwilling to entrust their fortunes to decisions made by their social inferiors, now looked to one another for remedy instead.

Clause 21 spoke not of a peerage but of the peers of earls and barons.  In the years around 1200 neither were defined with complete consistency; men could be referred to as earls who had no formal right to such a title,2 and comital styles were far from settled – William Marshal, for instance, was variously described as earl of Striguil and of Pembroke and simply `Earl William Marshal’ - while the number of potential barons was certainly greater than was the case a century later.  Among ecclesiastical barons, there could be no doubt as to the right of the bishops, and probably the major abbots, to be regarded as such, but it is not clear how many heads of lesser houses could claim similar status.  As for the laity, I.J. Sanders, basing his conclusions on the baronial reliefs – the sums paid for the right to inherit baronies – recorded in thirteenth-century sources, plausibly identified over 200 estates which could be defined as baronies, or probable baronies, so that those who held them, or fractions of them, were entitled to call themselves barons, and to enjoy the status accompanying that rank.3 

The term `baron’ as it was used in the Articles and in Magna Carta usually implied a magnate, one of the great men of the realm owing his power to his landed holdings and to the following he could command.  It was a word with a long history, beginning at a low social level where it could be applied to a lout, or even a slave, or used to mean no more than `man’ (a meaning it long retained when used of the husband of a wife).4  Subjected to constant redefinition, the word `baron’ gradually acquired connotations of martial valour and moral worth, which either arose from or contributed to its being increasingly used to describe a vassal,5 and by extension from that, a vassal of standing in the eyes of his lord, who was often, but not necessarily, the king.  In the early twelfth century the Leges Henrici Primi could refer to `barons of the king or of other lords’,6 and the leading tenants of tenant-in-chief could still be referred to as `barons’ in the early thirteenth century.7  Moreover, the principal men who served the king in the exchequer were also styled barons, and so were the citizens of London and the Cinque Ports.  

But although exceptions long persisted, by 1215 a baron was most often a member of the social élite who was ranked after an earl, although the fact that earls were also barons made it possible for chroniclers, or indeed Magna Carta itself, to use the plural `barons’ to mean the whole magnate class, earls and barons together.  It was in this sense that the Unknown Charter and the Articles were both presented as containing the demands of the barons.  The very first clause of Magna Carta refers to `the quarrel between us and our barons’, and the same phrase is used in the security clause intended to secure its implementation.  Elsewhere in the Charter, however, the word `baron’ was used only occasionally (on the whole the interests upheld are those of `free men’), and not entirely consistently.  Clause 2, limiting the reliefs which the king could demand for succession to inheritances, defined those which could be levied upon earls, barons (this clause is the yardstick for Sanders’ identifications) and other tenants-in-chief, but the apparent homogeneity of a baronage as a social layer was then undermined by Clause 14, prescribing that when the king took the common counsel of the realm before levying aids or scutages, individual summonses were to be sent to `archbishops, bishops, abbots, earls and greater barons (majores barones)’, while the rest, comprising all the tenants-in-chief, were to be summoned `generally’, through the king’s sheriffs and bailiffs.  The distinction in this case may have reflected an ambiguity in the term `baron’ which was apparently still being resolved – indeed, Magna Carta helped to resolve it – in that, as far as the king’s dealings with his leading subjects were concerned, the word had until very recently been a term applicable to any tenant-in-chief, not just to an important one, so recently that in 1215 it was still necessary to make a distinction between them.

The `baronial’ tenant-in-chief

The name Cartae Baronum, given to the returns to the inquiries into knight service made in 1166, which were demanded from every tenant-in-chief, however large or small his estate, show that `baron’ was then regarded as synonymous with tenant-in-chief.  That this might still have been the case in the early thirteenth century is suggested by lists drawn up for exchequer use in 1208/9 of `tenants-in-chief of the lord king in barony’ in Bedfordshire and Buckinghamshire and in Northamptonshire8 – they were mostly made up of men who could be regarded as barons according to Sanders’ criteria, but also included lesser men; in Northamptonshire, for instance, Luke Basset, who may have been connected to a notable baronial family but does not appear in its lineage, Eustace of Watford and Simon of Lyndon, who held one fee each, and Walter of Preston, who had one and a half fees and may have been the sheriff who made the return, stood alongside four earls, a countess, six abbots, and local magnates like Wischard Ledet and Robert of Pinkney, who both held what became established baronies within the county.  There were lordships, too, which might be referred to as baronies, no doubt because they were held in chief of the crown, since they never had any official status as such.  In 1194, for instance, Brian FitzRalph was recorded as owing 100 marks `for having right concerning the barony of Petworth and the fifteen knights’ fees pertaining to the said barony’.9  Petworth was clearly an important honour, but it was not recorded elsewhere as a barony, and the same was true of such `baronies’ as Haselborough in Somerset, `Wrethamtorp’ (part of West Wretham) in Suffolk, and Bingham in Nottinghamshire.10 

A different criterion for baronial status, but one which also suggests a wider application of the term than allowed for by Sanders, is provided by the procedure of the exchequer.  By the time that the Dialogus de Scaccario was composed, no later than the end of Henry II’s reign, it was usual for barons to be represented by their stewards when they accounted for their debts to the crown,11 and although the Statute of Windsor, issued early in John’s reign, tightened up the rules governing this practice it made no effort to abolish it.12  Exchequer memoranda rolls from King John’s first and tenth regnal years (1199-1200 and 1207-8 respectively) record the names of many `barons’ availing themselves of this privilege,13 and although the majority held lordships defined as baronies by Sanders, a significant number did not.  Some of these men were royal servants, who may have been allowed to attend by proxy because they were engaged on the king’s business.  Thus William de Humez was constable of Normandy,14 Andrew de Beauchamp was sent on a number of missions to Poitou,15 and William de Cresec was intermittently employed as a diplomat.16  Thomas Bloet was numbered among the king’s valetti,17 and William de Harcourt rose rapidly in John’s service during the later years of the reign, serving as a castellan and sheriff and also as a royal steward.18  Thomas of Galloway, who was a Scot, may have been something of an honorary baron – the brother of the lord of Galloway and from 1210 earl of Athol, he had entered King John’s service with a fleet of galleys, and received grants of lands and also (for a proffer of 1000 marks) the wardship of the barony of Richard’s Castle.19  Reginald Basset had connections to an important and widely-ramified family,20 Roger la Zouche to one in the process of rising to eminence.21  Other men were related to leading figures in government; Robert Bardolf was the brother and heir of Hugh Bardolf, a leading judge,22 while William of Buckland was the half-brother of the justiciar, Geoffrey FitzPeter.23  Men like Guy Lestrange of Knockin and Fulk FitzWarin of Whittington were lords of estates that can have fallen only just short of baronial status.  In fact all the `barons’ represented by stewards were significant landowners, whatever their origins and occupations, and as far as the evidence makes it possible to tell, they were all tenants-in-chief, usually by knight tenure, occasionally by serjeanty – Robert of Sutton held Bowers Giffard in Essex by the service of scalding the king’s pigs24 – or, in the case of religious houses, when they owed spiritual services only.  The abbots of Cirencester, Selby, Whitby and Tewkesbury, and the prior of Lenton, none of whom owed knight-service, were all represented by their stewards in the exchequer.

Agencies of assessment: the exchequer and the king

It was noted at the outset that it was well-established practice for amercements upon barons, however the latter were defined, to be imposed at Westminster.  Justices itinerant returning particulars of the issues of their eyres would leave blanks against the relevant names, so that the sums to be levied could be entered in the exchequer.  But here again the men identified as barons seem as likely to have been tenants-in-chief as holders of estates later regarded as constituting baronies.  In 1203 the justices of the bench put Henry de Bollei, or Bodlai, in mercy following the failure of his action of novel disseisin, and noted against his name that `Henry is the king’s baron; he is to be amerced at the exchequer ...’;25 Henry was probably the kinsman of a namesake who until his death in 1187 had held the Hampshire manor of Meonstoke, where the disputed property lay, and appears to have been farming it from the crown,26 but there is no evidence either that he was in any technical sense a baron, or that Meonstoke constituted a barony.  Nor, in the end, did he incur any recorded penalty (though this may have been because when Normandy was lost in 1204 Henry threw in his lot with the king’s enemies and was thereafter beyond John’s reach).27

At the 1198 Hertfordshire eyre the justices directed that both Gerard de Furnival and Reginald de Argentein were to be amerced at the exchequer for disseisin, showing that in the eyes of the king’s justices both men were barons.28  Since neither held recorded baronies, these men, too, must have been ranked thus because they were tenants-in-chief, Furnival by knight service (he was a powerful landowner, though predominantly in the north of England),29 Argentein because he held the manor of Great Wymondley by the serjeanty of serving with a silver cup at the coronation.30  Argentein’s offence cost him twenty marks,31 but Furnival is not recorded as paying anything, and the same is true of Gilbert de Gant – as lord of Folkingham in Lincolnshire indisputably a baron – whose amercement in 1202 for disseisin was referred `to London’.  His associate in his offence, who could be dealt with immediately, was amerced of £5.32 

Referral of an amercement to Westminster had the additional advantage of giving opportunities for discussion of a case, if an important person was involved, or for negotiations between the baron concerned and the king or his representatives.  At the 1202 Northamptonshire eyre, the abbot of Peterborough and the earl of Clare, or Hertford, the one an ecclesiastical and the other a secular baron, were both put in mercy for allowing markets held on their lands, at Oundle and Rothwell respectively, to take place on the wrong days, and `amercement at Westminster’ was entered against both their names.33  As a result the abbot had to pay twenty marks,34 but the earl chose to regularise his position by obtaining a royal charter licensing him to transfer his weekly market from Sunday to Monday, and granting him a yearly fair as well.  He paid five marks for his charter, but nothing, as recorded, for his offence – he may well have been expected, or encouraged, to make the one payment as a substitute for the other.35 

Such cases hardly suggest that referring an amercement to the exchequer necessarily resulted in an exorbitant demand being made on a baronial offender – none of the sums mentioned above was especially large - and the same could be true of amercements assessed by the king in person.  In 1206 Robert de Grelley, lord of Manchester, was amerced of £40 for a disseisin `by the king (per Regem)’, but half of that was pardoned.36 In 1203 John had intervened to pardon altogether the amercement imposed for a dissseisin, but not yet assessed (nondum est afforandus), on the Northumberland baron Eustace de Vesci,37 while three years later he dealt leniently with the Oxfordshire tenant-in-chief Alan FitzRoland, who had been convicted of disseisin in the bench, and of whom the justices duly noted that `he is to be amerced before the king’.38  Lord of the manor of Aston (now Aston Rowant), which he held of the crown as a tenant of its honour of Wallingford by the service of half a knight’s fee,39 Alan was not a man of Vesci’s consequence, and probably because he was not thought worth conciliating he was not permitted to escape all punishment.  Even so, his amercement of £5 hardly constituted an inordinate penalty.40

Amercements and penal fines

This was not always the case, however.  In the early years of Henry II’s reign some very heavy amercements were imposed on men of baronial rank.  In 1165, for instance, the abbot of Bury St Edmunds was recorded as owing 200 marks, the bishops of Lincoln and Winchester 400 marks each, and Hugh Mortimer, lord of Wigmore, 500 marks, all simply for amercements (de misericordia).41  Under Richard I, too, heavy penalties were imposed on men who had supported Count John against the king in 1193/4.  Gerard de Canville had to pay 2000 marks to recover his lands and the king’s good will,42 and though this was exceptional, reflecting Canville’s prominence in the rebellion, five of John’s partisans in Dorset and Somerset had to find between 100 and 400 marks apiece,43 while payments of £100 or 100 marks were recorded in several other counties.44  As time passed the king’s principal subjects became increasingly likely to find themselves heavily in debt to the king through making negotiated fines with him, rather than by having to pay him unilaterally imposed amercements, but the latter continued to be imposed, on both earls and barons.  In 1205 Ranulf, earl of Chester, was amerced of £100 for disseisin,45 two years later Eustace de Vesci’s failure in a lawsuit over a wardship cost him 200 marks,46 and in 1214 Aubrey de Vere, earl of Oxford, proffered £100 to clear himself of forest offences.47  In the event, Vesci’s amercement was pardoned (as was nearly half of Ranulf’s), and the same was true of the £100 charged against William Malet `because he took a stag in Taunton park’ and of the 200 marks owed by John of Monmouth `for unjust deforcement’, both in 1210.48  Amercements could be used as political instruments, imposed to remind those subjected to them of the advisability of keeping on the right side of King John, or perhaps simply of his power, and then pardoned if and when those subjected to them showed that they appreciated this.  In 1210 the countess of Warwick was recorded as owing £100 `for a false claim’.  In 1212 a note was added to the relevant entry that the debt was not to be summoned `until the king orders otherwise’49 – an unsubtle way of ensuring that the countess did as John wished, perhaps by remaining unmarried.     

It is not in fact always possible to distinguish amercements clearly from fines, the more so because some fines, which were agreed to by their victims in order to recover the king’s good will, or to avert his anger, were manifestly penal in intent.  When, for instance, Hugh Malebisse, an important landowner in Yorkshire and Lincolnshire, agreed to pay 200 marks and two palfreys in 1205 `for having seisin of his lands, of which he was disseised on the lord king’s order, and that he may have his lawsuits and his pleas in the state in which they were before the lord king was angered against him ...’,50 or when in 1209 Thomas de St Valery, lord of the Oxfordshire barony of Beckley, proffered 1000 marks `for having the king’s benevolence and for having his lands of which he was disseised on that account ...’,51 the form may in each case have been that of a fine, but the simultaneous loss of the king’s good will and of their lands, regardless of what they had or had not done to merit such treatment, had clearly placed Hugh and Thomas not so much in as at the king’s mercy, leaving them in a very weak position to bargain with John. 

In some cases, indeed, fines arose directly from being in the king’s mercy – in 1207 Robert de Ros, lord of Helmsley, had to pay 300 marks `for his amercement’ for failing to produce in court a man appealed of homicide (though this, too, was pardoned),52 and Roger de Cressy, who in the same year fined by 1200 marks and twelve palfreys `for having the lord king’s benevolence and for having seisin of his own lands and the lands of Isabel his wife, of which he was disseised because he married Isabel, who was wife of Geoffrey of Chester ...’,53 was in effect punished for the serious infringement of royal rights, in marrying an heiress without the king’s consent, which had made him a baron (of Hockering in Norfolk) and in the process also exposed him to a direct expression of royal anger.  On other occasions administrative failings led to the imposition of what, along with those described above, may plausibly be described as `punitive fines’.  For Robert de Vieuxpont, lord of Westmorland and one of John’s leading agents, who seems to have found himself in trouble over arrears of revenue in 1208, 4000 marks were needed to secure royal grace for himself and his bailiffs; he paid 1000 marks into the king’s chamber, and was pardoned the rest.54  The loss of royal favour, while it lasted, and exposure to the consequences of royal displeasure, may in fact have had a greater impact on those affected than the payment needed to secure a return to favour.  In the same year Walter Clifford (lord of a barony variously defined as Clifford and Corfham) may well have been pleased, even relieved, to be able to pay 1000 marks `for having the king’s benevolence and for there being no inquest made into him and his exactions (prisis) in Herefordshire ...’ after he was replaced as sheriff of that county in 1208.55  It was a considerable sum, although people who had suffered at his hands probably thought he deserved a heavier punishment. 

The terms of Clifford’s fine at least make it clear that an offence had been committed, and the same is true of other baronial fines, the £100 owed by Richard de Lucy in 1209, for instance, `for the forest badly kept’,56 or the sixty marks and a palfrey which Duncan de Lasceles had to pay in 1210 to recover his lands, having been dispossessed for failing to answer the summons to the previous year’s Scottish campaign.57  But a number of fines were levied without any recorded justification except royal dissatisfaction.  Whether it was the Cumberland baron Robert de Vaux, owing 750 marks in 1210 `for having the king’s benevolence’,58 or the abbot of Basingwerk, Flintshire, for whose payment of £100, `for having the king’s benevolence and for having seisin of his lands and rents, taken into the king’s hand because of the malevolence which the king had against him’, Brian de Lisle accounted in 1211,59  no further explanation was apparently required for their indebtedness than John’s hostility.  In the case of Robert of Berkeley, lord of the Gloucestershire barony of Berkeley, who was recorded in 1212 as owing 2000 marks `for having his lands and his castle of which he was disseised because of the king’s benevolence’,60 it is unclear whether `benevolence’ was a mistake for `malevolence’, or whether the clerk meant to indicate that Robert no longer enjoyed the king’s benevolence, or even if that word was being used ironically, and in the end it hardly seems to matter – what is certain is that Robert, and others like him, had lost the king’s unpredictable good will, on unstated grounds, and had to pay heavily to recover it.

The barons of the exchequer and the emergence of a magnate class

It is easier to show that barons, however defined, came to be in the king’s mercy, whether explicitly through being amerced or through being required to pay punitive fines, than it is to show how, and by whom, the payments demanded of them were assessed.  But it seems likely that the same methods, and people, were involved whether the penalties were small or large, and that the exchequer, with the king always near at hand, was the principal agent of exaction.  In the Dialogue of the Exchequer, probably written between 1176 and 1189, the `student’ had observed of the `teacher’ whose answers to his questions make up the bulk of the text that `I see that you always take the king’s part in everything, within reason’,61 and the latter’s discourse did indeed place constant stress on the king’s advantage and the need to uphold it.  Thus the royalism of the exchequer was already powerful when it intensified under King John, making it to an exceptional extent `subservient to the king’s interests’,62 while its principal officials, its barons, were, as recorded, very largely the king’s men.63  A small number were obscure figures of whom little or nothing can be said.  At the other end of the social spectrum, a few were either earls – the earls of Chester, Salisbury, Arundel, Pembroke and Winchester were all recorded as acting as barons – or what might be called barons of the conventional sort – Robert Mauduit of Hanslope, William de Warenne of Wormegay, Robert FitzRoger of Whalton.  But most were essentially functionaries, men who had made their way to status and riches in the king’s service, often in more than one branch of the administration.  Thus Richard of Herriard and Simon of Pattishall were also justices, William of Wrotham64 was largely responsible for the organisation of the king’s fleet, while Hugh de Neville became positively notorious for his administration of the royal forests.  Richard Marsh was probably a financial expert, but many of his colleagues were essentially all-rounders, entrusted with, precisely because they were capable of handling, any kind of business.

A few, like Marsh and Wrotham, were of obscure, and probably humble, origins, but most were either of knightly, or at any rate landholding, rank, and several were sons or relatives of administrators like themselves.  William Brewer was the son of a royal forester, and Hugh de Neville’s grandfather, Alan de Neville, served Henry II in much the same capacity, and using much the same methods, as Hugh served King John.   William of Cornhill followed a number of his relations into the king’s service, while William of Ely was a kinsman of Richard FitzNigel, the author of the Dialogus de Scaccario.  Gerard de Camville had served John before he became king, others served John as they had previously served his predecessors.  Such men were hardly on the same footing as the detested Poitevins, who could be referred to in terms used to describe serfs, or even farm animals.  In the end the strains of competing loyalties, whether ecclesiastical or secular, drove some of them into opposition to the king, but even in 1215 it could hardly have been expected that men like William of Wrotham, Geoffrey of Buckland, and even Hugh de Neville would join John’s adversaries, and what the latter probably most objected to was the loyalty, even subservience, of the barons of the exchequer to the king, and their willingness to support and implement his policies. 

This does not, however, rule out the likelihood that behind Clause 21 there also lay emerging considerations of status which caused its creators to see themselves as members of a social elite and to desire special treatment for themselves accordingly.65  Such a development can be seen, for instance, in the regulations of 1194 whereby Richard I licensed participation in tournaments at rates which varied according to the social rank of the men involved.  Earls were to pay twenty marks each, barons ten marks, knights `possessing land’ four marks, and landless knights just two marks.66  Clearly there was coming to be some distinction of status besides the ownership of estates which separated barons from knights, and this is also suggested by the aspirations of Geoffrey Wake, who appeared among the so-called barons who appeared by proxy in the exchequer in 1207/8.  Until recently Wake had been only the mesne lord, under Hubert de Burgh, of the Wiltshire manor of Ebbesborne (now Ebbesborne Wake).67  In June 1207, however, when Hubert was a prisoner in France, not only did Geoffrey pay 200 marks for the succession to the lands of his brother Simon, which included Ebbesborne,68 but he also obtained a charter from the king in which John took him under his protection as `our demesne baron’ (dominicum baronem nostrum), a status which his heirs were to inherit, and directed that Ebbesborne should henceforth be held in chief of the crown, in perpetuity, by the service of one knight’s fee.69  When Geoffrey Wake answered at the exchequer a year later by his steward, he may well have done so because he was now regarded as a `baron’ by virtue of his having become a tenant-in-chief, but it is hard to believe, in the light of the hereditary status conferred on him by John’s charter, that this was the limit of his ambitions, even though these seem to have come to nothing, whatever exactly they were - Hubert de Burgh soon recovered the overlordship of Ebbesborne and held it for several years, and although from 1222 the manor was once more held in chief of the crown, it never became a barony. 

The terms of Wake’s charter, like Richard I’s tournament regulations, attest a growing feeling that there could be more to being a baron than holding an estate directly from the king, and this seems to be confirmed by evidence concerning another of the `barons’ represented by proxy at the exchequer.  Ingram de Préaux, or Pratellis, was a tenant-in-chief in Wiltshire70 and held lands in other counties, including Shropshire.  But although he was included in a list of tenants-in-chief compiled in 1212 by the sheriff of the latter county, which named eight men as barons (along with two others who would have been so styled had their lands not then been in the king’s hand), Ingram was not among them; instead he was specifically, and presumably intentionally, defined as a knight.71  The Shropshire barons bore the names of powerful and long-established families like Mortimer, Pantulf, Corbet and Boterel.  Ingram de Préaux may have held an estate of the crown, but he was not regarded as sharing the eminence of Roger Mortimer and his peers, whose baronial rank, just three years before Magna Carta, came with a social cachet which transcended the status conferred by exchequer privileges.

It was probably for reasons of status, therefore, as well as because they hoped thereby to control the king’s demands upon themselves, that the earls and barons insisted that their amercements be assessed by their peers.  Indeed, if all they had wanted was to reduce the king’s exactions, they would almost certainly have been able to achieve that just as well by accepting the same treatment as other free men, while taking advantage of the power and prestige which almost everywhere gave them control of regional and local society.  Assessors who were their tenants or employees were unlikely to have acted against the interests of their lords, unless perhaps under very close supervision by agents of the king.  Clause 21 does not in fact say how the process of assessment by peers was to be conducted.  Its drafters may have envisaged the creation of panels of ad hoc assessors to deal with single cases, but it seems likelier that what they had in mind was either the temporary afforcement of the barons of the exchequer by magnates, or the temporary removal from the tribunal of such barons as were not magnates. 

Clause 21’s silence about its own enforcement had serious consequences.  For although the very possibility of the controls it prescribed might have constituted a bar to the more arbitrary exactions of a ruler like John, and especially to those imposed for no apparent reason, it was not in other respects necessarily entirely disadvantageous to the king.  It still allowed him to argue his case, in a tribunal which was peculiarly his, and upon whose members he could still hope to exert pressure, either because they were barons of the exchequer appointed by him, or because they were lords of baronies whose succession he was sometimes in a position to control.  And indeed, if the king ever truly lost control over the amercing of magnates he very soon recovered it.  The treatise De Legibus attributed to Bracton, mostly composed only some fifteen years after Magna Carta, cited Clause 21 almost verbatim, and added that amercements were to be assessed `by the barons of the exchequer or before the king himself’,72 suggesting a sleight of hand whereby the barons of the exchequer were themselves endowed with the same standing as earls and `ordinary’ barons.73  It is most unlikely that the drafters of the clause had anything like this in mind, but by their failure to stipulate how amercements were to be imposed they left the way open for it, with the result that although Clause 21 constituted an important step in the process whereby secular barons came to be defined as magnates, its beneficiaries would sometimes pay a high price for it.

Citation

Aims and lay fees

Clause 22 is one of only three in Magna Carta to be devoted to ecclesiastical interests (nos. 1, guaranteeing the church its freedom, and 27, endorsing the clergy’s role in the administration of intestates’ goods, are the others).  That its significance and purpose now appear less than ideally clear is due to the sequence of clauses having been disordered at this point by the insertion of a new one, almost certainly at a very late stage, between nos. 9 and 10 of the Articles of the Barons.  No.9 (the basis of Clause 20 of the Charter) was unusual in its social range in laying down that merchants and villeins as well as free men were only to be amerced in proportion to their offences, that the penalties imposed upon them were not to be such as to endanger their livelihoods, and that the rate of punishment was to be assessed under oath by honest men of their neighbourhood.  Ecclesiastics could have been regarded as included among the free men of Article 9, as they appear to have been in the rest of the Charter, but it was clearly felt that they needed a more specific protection.  Article 10, from which Clause 22 derived, provided this by extending the principles of Article 9 to the clergy and imposing similar restrictions: amercements were to be imposed `in the same way as the others aforesaid’, and only upon a cleric’s `free lay tenement’, while his ecclesiastical benefice, which seems to have been regarded in the same light as, for instance, a merchant’s stock in trade, was not to be targeted (this is discussed further below).

Among the Articles, no.10 followed naturally from no.9, but in the Charter the addition of Clause 21, making special provision for the treatment of amercements upon earls and barons (among whom, it must be assumed, bishops, abbots and priors were included, though this is nowhere stated in Magna Carta), introduced a potential note of ambiguity when it ordained that the great men of the realm were to be amerced not by their neighbours but by their peers.  Following on from this, Clause 22 could be understood as prescribing that clerics, too, were only to be amerced by their peers, presumably by other men in orders.  But the similarity in phrasing between Clauses 20 and 22, matching that of the two articles on which they were based, makes it overwhelmingly probable that the ambiguity (which was corrected in the 1217 reissue) was the result of inadequate revision after the insertion of Clause 21, and that Clause 22 should be seen as maintaining for the clergy the principles laid down for the laity in Clause 20.

The clergy in question were secular priests, and above all those who held benefices as their rectors, while their neighbours must have been their own parishioners, who could be plausibly regarded as including men whose standing was akin to that of their parsons.  Where the latter’s property was concerned, the separation of their lay fees – lands from which secular services were due – from those held in return for the performance of purely spiritual services, or `alms’, was well-established by 1215.1  Contrary to what might have been expected, it would appear that most of the land held by clerics fell into the category of lay fees.  Property held in alms – elemosina – usually constituted a relatively small proportion of a priest’s estate.  Representing the hard core of ecclesiastical endowment, without which a church could not function, it consisted primarily of the ground on which it was built and its other basic assets, and was subject only to ecclesiastical jurisdiction.  Such, for example, was the messuage in Cuddington, Surrey, which was held `by the service of 3d. of wax per annum and [that of] ringing the church bells on the year’s feast days’.2  But most acquisitions, whether attached to a benefice or not – secular clergy could legitimately acquire land by inheritance or purchase and hold it on the same terms as laymen – were apt to be regarded as lay fee, and as such were exposed to the demands of secular government.  It could sometimes be hard to distinguish between the two categories – in 1205, for instance, Bishop John Gray of Norwich had to divide the lay fee from the `free land’ of Thornham church, after the difference had become blurred with the passage of time3 – but the principle of separation was understood, and must indeed have been fostered by the development of the assize Utrum, whose function was to decide whether land was elemosina or lay fee, from the reign of Henry II onwards.4

Developing procedures

But although it may have been rare for priests to hold no lands as lay fee, it was not entirely unknown.  In 1165 William de Merlai was recorded as owing 200 marks (£133. 6s. 8d.) `for an amercement’.  In 1168, after nothing had been paid in the meantime, it was noted both that William resided in the Suffolk honour of Eye, and that the sheriff had sworn that `nothing of his is to be found outside the bounds of the church (extra septa ecclesie)’.  The same entry was entered on the pipe roll every year until 1182, when it was transferred to a list of desperate debts and then abandoned.5  The debts of Geoffrey of Piddle, a Dorset man, recorded as owing seven marks `for right concerning land’ in 1174,6 and of Geoffrey the priest of Goring, Sussex, amerced of twenty marks for disseisin in 1182,7 were annotated in identical terms, while of a group of Warwickshire men amerced in 1184, some of them identifiable as clerics, it was simply noted that `certain [men] have nothing in lay fee’.8  

A case from 1181 is particularly revealing.  Jeremy of Ecclesfield, a Yorkshireman, was recorded as owing forty marks (£26. 13s. 4d.) for defaulting on two assizes, and was also said to have nothing `outside the bounds of the church’.9  The debt had in fact been first entered some years earlier, following a Yorkshire eyre in 1176,10 but as with William de Merlai, no reference was made at first to Jeremy’s having no lay fee, only to his having paid nothing over five years.  But eventually the problem was solved.  Jeremy had been disputing the rectory of Ecclesfield, near Sheffield, with the abbot of St-Wandrille in Normandy, and almost certainly in 1184 they reached an agreement, under Henry II’s auspices.11  Jeremy abandoned his claim to the church, its dependent chapels and the abbot’s lay fee, and in return the abbot granted him a perpetual vicarage in the church and chapels, and also the whole lay fee, for which he was to pay an annual farm of twenty marks.  This settlement at last gave Jeremy the means to pay his debt to the king, and in 1184 he began to clear it, paying a total of £21. 6s. 8d. in that and the following year – he appears to have died before he could pay the rest.12

In all these cases the debts were entered on the pipe rolls, without anything being said about how, or even if, the money was to be raised where there was no lay fee available.  In the case of William de Merlai the pursuit of the debt was abandoned, in that of Jeremy of Ecclesfield it was taken up when the necessary resources were found.  A Lincolnshire case from the same period suggests that half-measures were sometimes the only recourse.  In 1180 Gilbert the priest of Fulstow and Hugh the clerk were amerced by the king’s justices of one mark and three marks respectively `for a false claim concerning a lay fee’.  Gilbert eventually paid his debt in full, but Hugh, having paid one mark in 1181 and 20s. in 1182, paid no more thereafter; in 1184 it was noted that `he has nothing in lay fee’, and in 1186 the remaining 6s. 8d. was transferred to a list of hopeless debts and abandoned.13  Presumably his secular resources were exhausted by his two payments, and the sheriff’s men did not distrain on any ecclesiastical ones he may have had.  If that is so, then government policy changed around this time, in ways which may have been reflected in Clause 22.

Several sources indicate what came to be done from the late twelfth century onwards, when a crown debtor who was an ecclesiastic lacked resources upon which the sheriff could distrain.  Glanvill, discussing the treatment of clerics who failed to come into court when litigating over churches, `especially if he has no lay fee’, recommended that `the bishop of that place, or the official if there is no bishop there, shall be commanded to constrain the clerk to come to court, either by threat of seizing the church into his hands as a punishment for default, or by any other lawful means ...’,14 and record evidence, too, suggests that where there was no lay fee, the responsibility for enforcing attendance, or payment, came to be transferred to the bishop or his representative.  The pipe roll for 1199 records without comment that William de Trailli had been amerced by forest justices in Cambridgeshire and Huntingdonshire of half a mark `for waste in Swineshead’.15  But an entry on that year’s memoranda roll records the sheriff of Bedfordshire, where William presumably lived, as reporting that he had nothing by way of a lay fee, whereupon the exchequer clerk noted that the bishop of Lincoln was to be notified (Significatur domino Lincoln’).16  Even more explicit was the treatment of Andrew Talebot, who owed £10 `for the request (prece) which King Richard made for him to the abbess of St Edward [Shaftesbury]’.  This time it was the sheriff of Dorset and Somerset who informed the exchequer that there was no lay fee, `and in Easter term a writ was directed to the bishop of Salisbury to distrain him.’.17

Evidence is scarce, but sufficient to indicate that the same distinctions, and the same procedures, were observed during John’s reign.  When in 1201 the parson of Hardwick, Cambridgeshire, failed to appear in the bench to answer to a writ of prohibition, and the sheriff testified that he had no lay fee, the justices directed that a writ be sent to the bishop, presumably of Ely, ordering him to produce the defaulter.18  In 1208 order was given that Hugh Bardolf’s clerk, Joseph, who owed two marks received on his late master’s behalf, should be distrained in Nottinghamshire, `where he has a lay fee, as the sheriff says’.19  In 1214 Richard of Wakerley, litigating with John de Montagu over the Northamptonshire church of Glendon, did not attend in court, `And since he is a clerk and has no lay fee, so it is said, the bishop of Lincoln is ordered to make him come in the quindene of St John the Baptist ...’.20  Bishops had in effect come to be treated as royal debt-collectors, something they may well have resented (in 1199 Henry Marshal of Exeter seems to have refused to act in this way),21 the more so, perhaps, because if they failed to do as they were commanded, then on the evidence of lawsuits from the early 1220s the sheriff would be instructed to act in their place, and also to compel the bishop’s attendance to explain his deficiency.22  Although the protocols in force during John’s reign were nominally respectful of clerical immunities, they were patently devised for the king’s benefit, not that of the church.

Pressure on the clergy

The processes whereby amercements on clerics were collected illustrate the separation of elemosina from lay fee which it was the principal aim of Clause 22 to maintain.  They were ancillary, however, to the enforcement of that clause, which was primarily concerned to control the scope and assessment of amercements.  No evidence survives to show how or by whom assessments were made during John’s reign, but no doubt the process was expected to involve a close scrutiny of a parson’s resources, followed by a no less careful distinction between their components.  In demanding that the distinction between elemosina and lay fee be observed, Clause 22 was in effect requiring that less than all a cleric’s holdings be taken into account when an amercement was assessed, so leading, perhaps, to smaller penalties being imposed than might otherwise have been the case, or even, when there was no lay fee, to total exemption.  For the laity, one result could have been larger exactions upon themselves, to make up for any clerical shortfalls; such a development might well have bred resentment, had ecclesiastics not come under increasingly severe pressure, in forms peculiar to themselves as well as ones which they shared with laypeople, as John’s reign progressed.

It is impossible to tell with any certainty how far the amercements and fines – the distinction between them became increasingly blurred during John’s later years, and it seems unlikely that ecclesiastics demanding reform wished to maintain it when the king himself did not23 – imposed on clerics were in fact assessed on lay fees only, or if they were calculated to exploit their elemosina as well, and it is arguable that Clause 22 provides the only clear statement that this did in fact happen.  There can be no doubt, however, that some substantial sums were demanded.  In 1209, for instance, Laurence the clerk of Wilton, rector of Bishopthorpe in Yorkshire and probably clerk to Roger de Lacy, constable of Chester, undertook to pay 500 marks to have the king’s good will (he paid his debt over the next five years).24  A year later the victims of the king’s `autumnal justices’ in East Anglia included Geoffrey, archdeacon of Suffolk, who had to find 300 marks `for having the king’s benevolence’, and the philosopher Daniel of Morley, rector of Flitcham, Norfolk, amerced of 200 marks for disseisin,25 while in 1211 the king’s grace cost Roger, archdeacon of Sudbury, 500 marks, all paid within twelve months.26  Clerics like Roger the archdeacon were clearly men of substantial means.  Whether the royal officials who targeted them calculated what they could afford to pay on the basis of their lay fees alone, or whether they took their elemosina into account as well, it is impossible to say, and the same is true of the many fines and amercements imposed on less affluent members of the first estate, for whom the king’s demands, in proportion to their resources, may have constituted a heavier blow than those made upon the senior clergy.  The seven marks owed by the parson of Irchester, Northamptonshire, for a forest offence in 1208,27 the twenty-five marks extracted a year later from the parson of Ollerton, Nottinghamshire, `for having an inquest concerning the forest’,28 or the twelve marks paid by Robert the chaplain on unspecified grounds in 121129 – these penalties, and numerous others like them, may have made grievous demands upon the men affected, and been met – as perhaps they were intended to do – only by drawing upon spiritual as well as secular resources.

However they were directed, exactions of this kind, though certainly potentially, and no doubt often actually, burdensome, constituted a normal, even expected, element in the governance of Angevin England.  But the particular circumstances of John’s reign, and above all his quarrel with the papacy over the archbishopric of Canterbury, probably had an additional impact on the English clergy which can seldom be estimated in individual terms but which is very likely to have been severe, and which may also have been reflected in the formulation of Clause 22.  The interdict laid upon England on 24 March 1208, and then the excommunication of King John himself on 8 November 1209, exposed the English clergy for over six years (the interdict was lifted on either 29 June or 1 July 1214)30 to administrative and financial demands which they were ill-equipped to resist, and which were made, moreover, when John’s needs were at their most pressing and his power to enforce his exactions at its greatest.

The effects of the interdict

According to Ralph of Coggeshall, John responded to the interdict by ordering the confiscation of the lands, rents and moveables of the clergy and also of the religious.31  Nearly all of those affected were soon able to recover their losses, at a price, but the forfeitures set in motion a prolonged spell of uncertainty and exploitation, which was made worse by the king’s excommunication in 1208.  Dioceses which had been returned to their holders a year earlier were now seized for the second time, as almost all their bishops, feeling unable to work with or for a king who had fallen under the ban of the church, now made themselves scarce – during the next six years only Norwich, Winchester and probably Carlisle still had resident diocesans.32  Ecclesiastical administration continued, but the officials responsible inevitably lacked the standing of absentee prelates, leaving their clergy without effective leadership.  Recourse to Rome, moreover, became well-nigh impossible, especially after the exercise of papal jurisdiction in England was prohibited by John in 1210.33

Vacant sees were entrusted to royal officials, some of whom were themselves clerics – the archdeacons of Durham,34 Huntingdon35 and Stafford36 all acted in this capacity – but many of whom were emphatically not.  Men like John FitzHugh in the diocese of Salisbury,37 William de Cantilupe, the king’s steward, in Worcester,38 Robert de Vieuxpont and then Philip of Oldcoates in Durham,39 and Brian de Lisle in York and Lincoln40 are likely to have been single-minded in their exploitation of their positions, whether on the king’s behalf or their own, and it is difficult to imagine them making fine distinctions between elemosina and lay fees when opportunities arose for amercing the clergy over whom they ruled.  They may, indeed, have felt encouraged not to do so by the king’s order for the confiscation of ecclesiastical assets whose holders had observed the papal interdict, on the grounds that they were no longer performing the spiritual services for which they held them.41  In such cases elemosina were effectively being turned into lay fees by royal fiat, still further obscuring the differences between them.

To make matters worse for the English clergy, they were also liable to direct exploitation by King John’s government.  A list of the king’s receipts from the English church during the interdict lists the issues of eight bishoprics, and then adds totals of the money taken from the clergy of eleven dioceses.42  The former were more profitable, but the contributions of the latter were by no means negligible.  Most were recorded as paying only hundreds of pounds – £152. 10s. from Exeter, £278. 17s. from Bath, and just £404. 11s. from London, for example – but there were also some larger returns.  The clergy of Lincoln were said to have paid a total of £2258. 18s. 4d., and those of Canterbury £1150. 19s. 10½d., while those of York and Durham together provided no less than £4272. 6s. 8d.  There is nothing in the list to show how these sums were made up – it is possible that Norwich’s payment of a round £1000 represented a one-off contribution, perhaps levied upon the diocese at a time of particular need, despite Bishop John Grey’s unswerving loyalty to the king, but that can only be surmise –  but again, it is difficult to believe that the royal officials who extracted them were greatly, or indeed at all, concerned to distinguish between the resources from which they raised ecclesiastical money for the king.  How vulnerable the clergy could be to royal demands at this time is strikingly shown by Brian de Lisle’s account of 1211 for the numerous custodies and lordships, lay and ecclesiastical, which were then in his keeping.  Among the sums accounted for were a number of `gifts’ (dona) from the northern clergy.  The abbot of Selby contributed only twenty marks (£13. 6s. 8d.), and the canons of York 100 marks (£66. 13s. 4d.), but the clergy of Nottinghamshire paid £286, and those of the diocese of Carlisle £444. 14s. 4d., while the clergy of Yorkshire and Lancashire together supplied no less than £2260. 12s. 4d.  All these sums, amounting to £3071. 6s. 8d., appear to have been paid during the year of Lisle’s account.43

Some of the money raised from dioceses during the interdict is known to have been paid into the royal chamber, leaving no formal record of either its source or its amount.44  It is very possible that there were other exactions upon the clergy like those of Brian de Lisle which were similarly disposed of, unknown to and unrecorded at the exchequer.  The steps which the papal legate Guala took to discipline and punish clerics who supported the rebel barons during the civil war of 1215-17 suggests that there was serious disaffection from King John’s regime among the English higher clergy, and it seems unlikely that the canons of York were the only capitular victims of its arbitrary levies during the years of interdict.45  The demands made upon the English church which provoked such resentment, and which also gave rise to Clause 23, did nothing to prevent Innocent III’s abrogating Magna Carta in 1215, when he condemned it in its entirety as `null, and void of all validity for ever.’46  But the clause was included, with minor revisions, in all the reissues of the Charter, suggesting that the distinction between elemosina and lay fee was one which the clergy valued and wished to see maintained, even though in purely practical terms it could not prevent the crown from keeping the initiative, and the advantages, which it had enjoyed in its dealings with clerical debtors before 1215.   

Citation

River-banks and royal sport

The king’s right to call upon his subjects to serve in the army and to carry out work on fortifications and bridges, the so-called trimoda necessitas, was undeniably ancient, dating back to the mid-eighth century.1  The obligations inherent in it were still liable to be enforced 450 years later – it is noteworthy that in the lists of exemptions contained in King John’s charters, work on bridges was very rarely included, and usually only in grants to religious houses2 – but although it is possible that post-Conquest kings were exploiting ancient obligations when they imposed the one which Clause 23 was devised to curb, the fact that the bridges referred to in Magna Carta were said to have been ad riparias, at river-banks, makes it clear this clause was not essentially concerned with public and military responsibilities.  Rather it was directed against the misuse which had developed under John and his immediate predecessors of powers inherent in their kingship for the advancement of their private pleasure, and specifically of their pursuit of game with falcons and hawks.

An archetypal aristocratic sport – when Richard I was riding through a little village in Calabria on his way to the Holy Land in 1190, he was said to have forced his way into a house in which he heard the cry of a hawk, and to have carried the bird away, apparently believing that rustici had no right to possess such a creature3 – hawking was above all conducted on the banks of rivers and marshes, to the extent of shaping the verbs used to define it – riveare in Latin, rivoier or rivierer in Anglo-Norman.4  It was there that the cranes, herons and ducks which constituted the choicest prey were found in greatest numbers, and where their pursuit by trained falcons and hawks (especially the former) provided the best sport.5  Once a falcon had been launched at its prey, the falconer, following it on horseback, and apparently accompanied by dogs (needed to pick up birds struck by a stooping falcon in its descent – hawks, by contrast, seize their prey in their talons), had to be able to keep up with the bird, and bridges were seemingly put down at intervals to make this possible.  In 1214 Brian de Lisle’s account for the issues of the archbishopric of York, in the context of his expenditure on hunting recorded 60s. as having been spent on twenty bridges.6  At an average of 3s. apiece, they were probably not much more than gangplanks, but were presumably robust enough to allow mounted men and packs of dogs to cross from one side of a river to the other.

The demand for the building of bridges as an adjunct to royal sport may well have originated on the king’s demesnes, and then been extended, like the royal power itself, onto the lands of others, until it effectively covered the whole of England.  In this there would have been similarities to the law of the forest, which was also arbitrarily extended over other men’s estates throughout the twelfth century.  That law did not apply to hawking, however, and although the extension of royal rights where both forests and river-banks were concerned was addressed in a unitary fashion in Clause 47 of Magna Carta, in 1225 they were separated, and two successive clauses dealing with the abuse of hawking rights were placed together as numbers 15 and 16.7

Clause 23 of the 1215 Charter was closely based upon no. 11 of the Articles of the Barons, but short though it is, it differs in significant ways from its model.  The Article was concerned with townships, and prohibited their amercement, but the Clause extended its coverage to include people, and was directed against their being distrained to perform the service complained of.  In other words, whereas the Article prescribed that no community should be punished for having failed to provide the bridge required, the Clause ordered that no-one should be required to build one in the first place.  And whereas the Article allowed an exception for places which had traditionally supplied bridges, the Clause not only extended it to people but also made it more precise – the king and his officers were not to force communities to build a bridge because they could claim that there had always been one at a given spot, but could only impose in this way on people and places which had demonstrably performed this service in the past.  People could answer back, whereas places could not.

Hawking was a seasonal sport, practised between autumn and spring, and therefore probably unlikely to endanger the harvest by calling men from the fields to make bridges.  But it still had the potential to interfere with necessary tasks like ploughing and sowing, and with the care of livestock, while the seizure of distresses to enforce bridge-building, when these took the form of cattle or agricultural implements (as they must often have done), would have been no less deleterious.  As far as these considerations were concerned, however, Clause 23 was probably drawn up less with the interests of peasants in mind, than with those of their lords, whose estates and rentals could have been harmed by the taking of both distresses and amercements, and who could also have suffered from being called upon to compel their tenants to provide bridges, and then being punished if they failed to do so.

Royal birds

Post-Conquest English kings went hawking as enthusiastically as they hunted deer, and spent a good deal of money on both sports.  This was particularly true of the Angevin kings.  In October 1164 Henry II failed to appear on the day appointed for the council at Northampton which saw the final showdown between himself and Archbishop Thomas Becket because he had spent it pursuing birds on nearby streams and rivers – circa rivos aquarum et fluenta in avibus coeli ludens8 – and he appears to have expected local landowners to set up the conditions in which he could enjoy his sport.  Two years later one Roger Cappa was amerced of twenty-one marks (£14 – a considerable sum, and one paid within two years) in Surrey because he had failed to prepare the king’s passage on a river bank (viam Regis in rivar’).9  Richard I, too, was a keen falconer, and often had birds and their keepers sent to him from England to Normandy.  £7. 1s. were spent pro passagio of the king’s falconer with his birds and their hutches in 1194,10 a larger outlay than later because Richard had only recently been freed from captivity and a hawking establishment needed to be created for him – in 1196 the cost of transporting three falconers to Normandy, along with their birds and hutches, came to only £3.11  The fact that the records of John’s reign are much fuller than those of his two predecessors makes it impossible to make precise comparisons, but the evidence certainly suggests that John was at least as devoted to hawking as his father and older brother had been. Like Richard I, he had birds sent to him in Normandy.12  After his return from Poitou late in 1206, at the right time of year for such sports, he was described as enjoying himself hunting and hawking (bois et rivieres antoit),13 and when he was in the midlands in November 1209 he spent six days riding through forests and river-banks (per forestas et ripparias), while his baggage-men hung around with the king’s wardrobe in Northampton and Rockingham.14

Under such rulers, it is hardly surprising that good hawks and falcons should have been so much in demand that it became commonplace for debts to the crown (and, indeed, to others) to be partly, or even wholly, paid in birds – in 1210 William son of Reiner undertook to give three Norwegian goshawks and three Icelandic girfalcons (the largest and most valuable kind of falcons) for licence to settle a property dispute with Walter de Riperia.15  Such debts and proffers could be carefully defined – the birds were to be worth the money they replaced.  Thus in 1209 Geoffrey de Gidney, an East Anglian knight, was recorded as owing `a good falcon flying well’,16 while a year later the debt of William of Leicester was still more carefully defined – to recover his land at Merrow in Surrey, he had to give a girfalcon which to be both good and young, one which had just left the nest and was confined for moulting (j bonum girfalcum ramagium mutarium).17  So usual had it become for debts to be settled in this way by the end of Henry II’s reign, that the Dialogus de Scaccario devoted a short chapter to the practice, noting that in such cases summonses were not issued for payment at the Easter exchequer, `because birds are rarely flown in the summer’, but were sent out ahead of the Michaelmas session, when the promised hawks and falcons could be expected to be in good condition for the approaching season’s sport.18

King John’s sport

John was almost continuously resident in England from 1204 onwards, so that the pleasure he took in his favourite sport would have made a much greater, and more widespread, impact there than it could have done under Henry II and Richard I.  The fullest evidence for his falconry, however, and for its implications for Clause 23, is provided less by the records of his own reign than by orders and prohibitions from the reign of Henry III which refer back to the reigns of that king’s father and grandfather.  These show that Henry II and John went out with their birds, and presumably demanded the making of bridges, in many parts of southern and central England.  Perhaps it was in deference to Clause 23 that an order of 1224 referred to the publica riparia of the River Severn,19 suggesting that by that date there were river-banks where restrictions of the kind imposed by the king’s sport were no longer enforced, just as the stress placed in the later instructions – issued at intervals between 1234 and 1253 – on practice under earlier kings may reflect the Clause’s demand for the observance of accepted precedent.

By reference to that precedent Henry III could still expect the River Kennet, flowing west from Hungerford towards Marlborough, and also stretches of the Thames, to provide him with venues for his hawking,20 and the same was true of the River Lea in Essex, running south from near Luton to join the Thames at Bow,21 of the River Mole (another tributary of the Thames) in Surrey and the River Glyme (presumably to be identified with the `Bladen’ of the record) in Oxfordshire,22 and of three Hampshire rivers, the Test, the Avon and the Itchen.23  Further afield, the Upper Avon in Worcestershire was marked out for the king’s hawking in 1238, when order was given for the repair of the bridges between Pershore and Evesham (a relatively modest distance),24 while more generally, in 1235 and 1236 orders were sent to no fewer than sixteen sheriffs, directing them to ensure that the men of their counties did not go hawking on river-banks which had been reserved for the king’s pleasure under Henry II, and instructing them to have bridges built by those who `of old and by right’ should do so.25  One of the rivers affected must have been the Great Ouse in Huntingdonshire, which had clearly long been a favoured site for royal hawking – a number of estates along its banks were linked to serjeanties associated with falconry.26

King John certainly went hawking, or at any rate expected to go hawking, on at least some of the rivers referred to by his son, and also along some which Henry III did not mention.  On either 6 or 13 February 1213, for instance (the record is unclear as to the day), as he made his way south from Yorkshire, after crossing the Humber into Lindsey he broke off his journey towards Lincoln for a day’s hawking at Great or Little Limber, perhaps on one of the tributaries of the Humber.  Although neither day was apparently of religious significance, John still felt obliged to do penance for having devoted his sport to it, and therefore provided bread, meat and ale for 100 poor people `because he went with his girfalcons to take cranes and took nine of them ...’.27  Late in the previous year he had fed another 100 paupers to atone for his having gone hawking on St Nicholas’s day (6 December),28 probably along the Thames, since he was recorded that day at Bampton in Oxfordshire, while to make up for his having taken seven cranes at Ashwell, Hertfordshire, on the feast of the Holy Innocents (28 December) – no doubt he took advantage of the closeness of the River Rhee – he fed no fewer than 350, at the rate of fifty per crane.29

Whether John owed any of these successes to the construction of bridges is not recorded, but that he required this on other occasions is shown by the letters patent issued on 11 September 1208, in which he notified the knights and free tenants living along the Thames between Cricklade and Eynsham that he had appointed Roger de Maysi (a minor tenant-in-chief in Oxfordshire) to keep the river-banks, and commanded them to take orders from Roger and have bridges made as he directed.30  Similar responsibilities were probably.laid upon one Aubert, a servant of Thomas of Sandford whom John appointed on 19 November 1205 to keep the banks of the Avon between Malmesbury and Bristol, with a weekly wage of 7½d. until Ash Wednesday following (25 February 1206).31  Such instructions suggest that free-holders were expected to put their own tenants at the disposal of royal officers so that the king could have his sport – a good reason for their finding the practice objectionable.

Penalties and prohibitions

Not every river, or part of one, was in the custody of men like Roger de Maysi and Aubert.  In 1205 John ordered the sheriff of Hampshire to release the oxen he had taken from Roger Mortimer (presumably a kinsman of the lord of Wigmore, who also held the manor of Stratfield Mortimer just south of the Thames, on the border between Hampshire and Berkshire) pro passu riverie, an offence defined with greater precision later that year in the king’s acknowledgement that Roger had paid five marks `for the crossings (passibus) which he did not make over river-banks in his (sic) bailiwick’.32  Roger was said to have made fine `with us’, and no debt was entered on a pipe roll.  When in November 1241 Henry III ordered the sheriff of Berkshire to punish the townships responsible for defective bridges over the Kennet, taking five marks from each, he gave instructions that the money was to be paid into the wardrobe.  The abbot of Reading, who made fine by five marks for his manors of Whitley and Crookham, which were also punished pro defectu pontium (this suggests that Henry had gone hawking along the Thames as well as the Kennet), was similarly directed to pay the money into the wardrobe.33  These cases were recorded thirty-five years apart, but the fact that the sum involved was the same in each of them (other townships in the abbot’s liberty were also amerced of five marks apiece), and that the manner of payment was at least broadly similar, raises the possibility that by the beginning of the thirteenth century the penalty for failure to provide a bridge when the king went out after birds had become standardised at five marks – £3. 6s. 8d., a far from insignificant sum – and that it was commonly imposed, and perhaps collected, on the spot, or at any rate without reference to the exchequer.  This makes it less surprising that there are very few recorded instances of such amercements in the surviving pipe rolls, although their being prohibited in Magna Carta strongly suggests that they were frequently exacted.

By Henry III’s time the areas within which such penalties could be imposed had been limited by Clause 23 itself.  But at Christmas 1208, if Roger of Wendover is to be believed, King John had forbidden the taking of birds throughout the whole of England.34  If such a prohibition was indeed imposed, it may well have been primarily as a means of making money, whereby men and women who had previously gone hawking as of right now did so as a privilege paid for to the king.  But the implications of such a ban would nevertheless have been potentially far-reaching, for by proscribing the sport of others John would in effect have been demanding the unlimited extension of his own.  Since the prohibition could not apply to him, it would have given him an effective monopoly of the right to go hawking, and as an inevitable corollary, everyone, everywhere, might have had to contribute to the making of the bridges which he needed in order to enjoy his sport.  The penalty for those who did not do so was in any case severe, and seems to have been arbitrarily imposed, while because it was subject to no external control it was also open to abuse, by the king himself and also by his officials – Clause 48 of Magna Carta included the keepers of river-banks among the royal servants whose `evil customs’ were to be investigated and abolished.  It is hardly surprising, therefore, that in 1215 steps were taken to restrict so injurious a practice.

Citation

(a) Terms of reference

Clause 24 in Magna Carta originated as the first part of no. 14 among the Articles of the Barons, where it followed a provision concerning assizes, contained a second section dealing with the revenues of the shires, and was followed by one article relating to the collection of debts owed to the king by deceased tenants-in-chief, and then by a short series of others (16-21) mostly concerned with the powers of royal officials. The cohesion of this sequence of articles, broken only by No. 17, dealing with the remarriage of widows,1 was to some extent disrupted in the Charter, when Article 13, which could have been plausibly related to the first part of 14 through the association of civil pleas with crown pleas, was separated from its successor to become Clause 19.  But the function of Article 14 as a control upon officialdom was arguably given extra force by its separation into Clauses 24 and 25, which were then relocated to form part of a series of clauses (23-31) largely concerned with the king’s financial rights, and with their exploitation by sheriffs and their underlings.

The first section of Article 14 was not only moved numerically when it became Clause 24, it was also substantially rewritten, in ways which significantly altered its original content and purpose.  Article 14 had forbidden the sheriff to involve himself with the pleas of the crown, that is, with matters of criminal justice, without the coroners.  The Latin phrase translated as `involve himself’ - intromittat se – often implied meddling, an unwarranted interference, but could simply mean `deal with’, without pejorative associations, and that may have been its meaning here.  The sheriff had a legitimate and often necessary role in the processes whereby crown pleas were in their early stages presented and recorded in local courts, and the Article may have been primarily intended to ensure that these preliminary stages were properly gone through, by insisting that the coroners were present at them.  But the possibility still remained that the sheriff would go beyond the arresting of suspects and enrolling of appeals which such proceedings entailed, and that having made an arrest or heard an appeal he would assume a judicial role to which he was not entitled, by holding a court – especially a session of the county court, which he largely controlled - and acting as judge in it.  Clause 24 aimed to prevent this, by categorically ordering that no sheriff, and no other official either, whether constable, coroner or bailiff, was to hold pleas of the crown in this way, instead they were to be the exclusive concern of the king’s justices..

The prosecution of serious crimes was fundamental to the holding of crown pleas, but the latter’s scope extended further than that, to all sorts of royal rights and responsibilities, which were continually expanded.  Defining them as `rights which the king of England has in his land solely and over all men’, the early twelfth-century treatise Leges Henrici Primi listed as crown pleas such crimes as treason, serious theft, murder, counterfeiting coinage, arson and rape, along with the harbouring of those who committed these offences, and also the infringement of royal rights like treasure trove and forest law.2  By 1194, on the evidence of a list preserved by Roger of Howden of the points which the king’s justices were expected to investigate, those rights also included escheats, churches, wardships, the disposal of heiresses, the chattels of Christian usurers and breaches of the assize of wine,3 and they were greatly augmented later.  What they had in common was that jurisdiction over them, and the financial issues of that jurisdiction, belonged to the king.  In the years immediately after 1066 crown pleas were usually administered by the sheriff, who was often an important baron, when he presided in the county court with the bishop and the earl.  The subsequent withdrawal or disappearance of the last two left the sheriff in solitary pre-eminence, wielding a power which soon came to seem excessive, and from around 1100 Henry I, in particular, applied himself to reducing it – less, probably, as a safeguard against miscarriages of justice than to prevent corruption, the diversion of royal revenues into shrieval pockets.4   To that end men of lower rank were nominated to the shrievalty, ad hoc commissions of justices were sent out to conduct sessions in the shires – one held by Ralph Basset in Leicestershire in 1124 has become notorious for its mass execution of thieves5 – and new offices were created for the performance of tasks previously undertaken by the sheriff.  The precise responsibilities, not to mention the identities, of the local justices who appear in the surviving records of government during much of the twelfth century are hard to establish with any precision, but it seems clear that where the crown’s criminal jurisdiction was concerned they acted alongside, or instead of, the sheriffs, and in doing so set in motion a process which would eventually result in the latter’s losing that jurisdiction entirely.

(b) Defining jurisdictions

The process was an uneven one, however.  There was a strengthening tendency during the second half of the twelfth century for crown pleas to be regarded, and treated, as matters to be heard only before the king’s justices.  In 1168 one Eudo, described as the man of Basilea Brito, was amerced of 10s. `because he pleaded a crown plea’, and the serjeant of Flegg, near Yarmouth in Norfolk, gave 13s. 4d. for his involvement in the same case,6 while two years later a royal serjeant in Lincolnshire was recorded as owing 6s. 8d. `because he did not claim a crown plea in the court of the brethren of the Temple’.7  Presumably his responsibilities included ensuring that local courts did not encroach upon the king’s jurisdiction.  In neither case is it recorded what the crown plea in question was, however, and in fact it took some time for a final consensus to be achieved, defining the pleas of the crown and deciding who should hear them.  The initial stages of the Assize of Clarendon, enacted in 1166 `for the keeping of the peace and the maintenance of justice’, were entrusted to both royal justices and the sheriffs,8 and though subsequent proceedings appear to have been envisaged as being conducted before the justices alone, the record of the Assize’s enforcement suggests that in at least half of England the necessary work was done by county officials, that is, by sheriffs and local justices.9 

The named targets of the Assize were robbers, murderers and thieves, along with those who harboured them, and here the issue is further complicated by the fact that by the later years of Henry II’s reign theft, or some forms of it, was said to have been a plea not of the crown but of the sheriff.  This may in fact have been a recent development, for there is evidence that in King Henry’s earlier years jurisdiction over homicide and theft belonged to the crown.  In a royal charter for the royal chamberlain William Mauduit, given between December 1154 and August 1158, murder and theft were reserved for the local justice,10 while jurisdiction over these two crimes was specifically included in a comprehensive grant of powers of justice to Reading Abbey made in 1156 or 1157.11  But later in Henry II’s reign the treatise known as Glanvill, having listed the crimes which `belong to the crown of the lord king’ in terms closely resembling those named by the Leges Henrici Primi, declared that `The crime of theft [furti – the same word used in Reading’s charter] is not included because this belongs to the sheriffs ...’,12 and this was echoed by the Dialogus de Scaccario, which in describing how the chattels of convicted criminals were to be disposed of, distinguished between those of robbers, `also called open thieves’, and `thieves who steal in secret’ – the former became the king’s, but `the goods of thieves, however, go to the sheriff under whom they were arrested and punished ...’.13 

Possibly only particularly serious cases of theft were reserved for the justices.  Although the wording of clause 2 of the Assize of Clarendon is somewhat obscure, it would appear that in 1166 they were expected to hear accusations against thieves and robbers where the value of the stolen goods exceeded 5s.  In the reign of Henry I capital theft had been equated with goods worth 8d., while in the thirteenth century the limit between petty and capital theft was set at 12d..  It seems very improbable that under Henry II that limit was suddenly raised by anything up to 750%, more likely that in order to avoid creating an intolerable workload for the king’s justices by requiring them to deal with every charge of theft which the Assize brought before them, what might be called conventional cases of capital theft, of a kind which might still lead to a man’s being hanged or mutilated but which in themselves hardly threatened the social fabric, were consigned to the jurisdiction of the sheriff.  When in 1176 the Assize of Clarendon was revised and reinforced by the Assize of Northampton, the fact that what were characterised as petty (minutis) thefts and robberies committed in the recent rebellion against Henry II were specifically excluded from the new Assize’s remit, might also suggest that such a distinction formed part of government thinking, the more so as the offences so described were hardly `petty’, since they might involve thefts of horses and oxen, which later constituted capital crimes.14  That such cases were indeed left to the sheriff to dispose of is suggested by a story found in two collections of the miracles of St Thomas of Canterbury, both datable to the early 1170s, recording how a Bedfordshire peasant named Ailward was charged with theft and mutilated after failing in the ordeal, before being healed of his injuries by the saint.  The goods he was alleged to have stolen were initially valued at only one penny, but his accuser then added to them, to bring the charge within the competence of a royal court, while in the proceedings which involved both accounts recorded the involvement of the sheriff - in one of them the accuser was described as ensuring that Ailward underwent the ordeal of water through his `having gained the favour of the sheriff and the judges’.15  

(c) The professionalization of justice

The enforcement of the Assize of Northampton, in 1176 and afterwards, was entrusted to teams of royal justices, making methodical visitations of groups of counties in pre-arranged circuits.  The financial issues of their itinerations, or eyres, as recorded on the exchequer pipe rolls in the 1180s, suggest that their jurisdiction, and manner of proceeding, in criminal cases were already largely identical with those of the more fully recorded eyres of the thirteenth century, the most important difference being that proof of guilt or innocence was made through the ordeal rather than by juries’ verdicts.  Many accusations were made by appeals of felony, but then as later, the justices also depended heavily for information on preliminary presentments by juries, and were alert in detecting omissions and concealments – the burgesses of Doncaster had to pay twenty marks in 1180 `because they concealed a crown plea in their veredictum‘.16  Overall, the justices took cognizance of homicides and accidental deaths, and also of robbery, arson and rape.  It is not clear if they also heard charges of theft, but probably they did, although they may not always have proceeded to judgment in such cases   The chattels of men and women who fled rather than come into court and stand trial, some of whom must certainly have been suspected thieves, were included among the issues of these visitations, and the justices also concerned themselves with individuals and communities which had harboured thieves or allowed them to escape after arrest.  Insignificant offenders could perhaps have been left for the sheriff to deal with later, but it must have been the justices who decided what constituted insignificance. 

The king’s justices were increasingly in a position to exercise an overriding control of the whole system of law enforcement, as is shown by their having reviewed the inquests made upon dead bodies by the sheriff’s serjeants (a responsibility later transferred to coroners), penalised communities which had failed to raise, or pursue, the hue and cry, and in which the tithings fundamental to the workings of the frankpledge system were inadequately maintained, and amerced private courts which had abused their powers, notably by hanging suspects `unjustly’.  They also scrutinized the conduct of officials, and punished deficiencies – the serjeant of a Lincolnshire wapentake who concealed an action of rape, the sheriff of Yorkshire who forced a thief to abjure the realm despite his acquittal through the ordeal of water.17  And they penalised infringements of the assize of wine, and investigated royal rights, and those who encroached on them – the marriage of an heiress, treasure trove, the goods washed ashore from a wreck at sea.  Their competence was very wide, and it had become exclusive, in that the settlement of a crown plea without their permission was now a punishable offence - in 1185 Ralph FitzBernard was amerced of as much as 100 marks `because he made an agreement over a crown plea without the licence of the justices’, and though this was exceptional (Ralph was in fact pardoned a year later),18 sums between 40s. and five marks were levied in other cases.  It could only be a matter of time before the ban on such settlements was extended from the king’s subjects to the king’s officers.    

The eyres of the late 1170s constituted an important stage in the emergence of a cadre of professional justices in England.19  Legal matters were increasingly handled by men of perceived expertise, a development which left little space for the exercise of authority by relative amateurs, as sheriffs, who were essentially administrative officers, were often bound to seem.  This applied to both civil and crown pleas, and it can hardly be coincidence that as the competence of the justices itinerant where the latter were concerned became well-nigh all-embracing, so a separate jurisdiction for the sheriff, largely confined to disorderly behaviour, began to be defined – according to Glanvill it covered theft, but otherwise only `brawlings, beatings, and even wounding’, and even these might be transferred to a royal court if the plaintiff alleged breach of the king’s peace.  It is impossible to tell from the 1189 pipe roll whether the town of Northampton’s payment of £20, `because they held pleas which pertained to the sheriff by writs directed to the sheriff’,20 arose from civil or criminal litigation, but there was no such ambiguity about Peter de Brus’s proffer of 400 marks for the Yorkshire wapentake of Langbaurgh in 1207, in which he acknowledged that such crown pleas as emerged within the wapentake would be heard before justices itinerant, and that `for other pleas, indeed, which belong to the sheriff, they will answer before the sheriff.’ 

(d) Coroners and the danger of corruption

But if a lack of professional competence was one reason for the reduction of the sheriff’s jurisdiction over pleas of the crown in the second half of the twelfth century, another and deeper-rooted one was the fear of corruption on the part of the king’s officers in the shires, with the sheriffs at their head.  The issues of crown pleas were the king’s, who stood to loose if they were siphoned off by the men handling them before they were accounted for to the exchequer, and the risk only grew as the king’s jurisdiction expanded.  The sixth article of the Inquest of Sheriffs held in 1170 inquired concerning the chattels of those who had been convicted under the Assize of Clarendon, or who had fled in response to it, and it also required that `it be likewise inquired if anyone was unjustly accused under that assize, for reward or promise or hatred or in any other unjust manner; and whether anyone of the accused was released or convicted for reward or promise or love, and who took a reward for it ...’.21  The Assize had created an agency of government capable of being exploited for corrupt purposes by those who administered it, to the detriment of the king’s finances and the king’s peace alike.  The opportunities for extortion and exploitation were probably largely controlled by a regular series of judicial visitations in the second half of Henry II’s reign, but the constraints upon official misbehaviour may have been relaxed in 1189/90, when following the accession of Richard I there was an almost complete replacement of sheriffs, with twenty-three out of twenty-eight shrievalties passing into the hands of new officials, all of whom had bought their offices and expected to use them to recoup their outlay.22 Then on 30 March 1194, after Richard’s return to England from crusade and captivity, there was another shrieval  change-around, with nineteen sheriffs being replaced.23  It is against this background, and that of the disorder associated with Count John’s rebellion in 1193, that the instructions drawn up in September 1194 for the conduct of a nationwide eyre should be seen. 

Following the list of articles under which the justices were to investigate and maintain the pleas of the crown came two administrative orders (the first of several) concerning the responsibilities of local officials.  The first ordered the election in each county of three knights and a clerk as `keepers of the pleas of the crown’, soon known as coroners.  Their task, that of recording crown pleas, was not new, but it had previously been carried out by the serjeant of a hundred or wapentake, who might be described as a king’s or a sheriff’s serjeant, and who in any case was probably ultimately answerable to the sheriff.  In 1186 the serjeant of a Northamptonshire hundred had to pay ten marks because `he did not present a crown plea to the sheriff previously presented to himself’.  Probably it was a violent or accidental death, something always prominent among the coroner’s concerns, and before 1194 relevant to the sheriff as well, since he became responsible for the arrest of suspected killers, and was also required to sell any tangible cause of an accidental death, like the horses recorded as killing children in Yorkshire and Devon in 1184, and to account for the proceeds at the next eyre.  And following the creation of a new office came a regulation concerning an existing one, with the stipulation that no sheriff was to be a justice in his own county, or in any county where he had been sheriff since the first coronation of Richard I, on 13 September 1189.   

Despite its apparent resemblance to Clause 24 of Magna Carta, this second order was less important for the sheriff’s jurisdiction than the first.  There had apparently been plans for nationwide investigations of official malpractices during the summer of 1194, but these were abandoned, no doubt because such inquiries could instead be left to the eyre, and it was with this in mind that sheriffs and ex-sheriffs were forbidden to act as justices, as a way of ensuring that none of the men who had been sheriffs since the beginning of Richard I’s reign was in a position to influence the forthcoming proceedings, at which many complaints against shrieval high-handedness or corruption during the previous five years could be expected to be made.  That the prohibition was intended to be a temporary one, made with a particular situation in mind, is suggested by its not having been repeated when a new list of crown pleas was drawn up for another eyre only four years later, in 1198.24  But the creation of the coroner took permanent effect, even though for some time the new office operated alongside the old one, with the sergeants continuing to fulfil their traditional functions for at least thirty years before they were completely superseded.25

The innovation probably had more than one purpose.  It could relieve the administrative burden on English sheriffs at a time when they were under continual pressure to provide the men and supplies needed to maintain Richard I’s campaigns in Normandy, while perhaps at the same time making the operations of local government a little less unpopular by ensuring that some of the tasks previously undertaken by the sheriff and members of his staff were now more expeditiously performed.  But the principal motive was probably financial, arising from the king’s desperate need to maximize all his revenues.  The coroner investigated and `kept’, that is, recorded, certain pleas of the crown, and by doing so provided the means whereby the issues arising from them could be secured for the crown.  Among the responsibilities transferred to the coroner, for instance, were the mandatory inquests held into accidental or violent deaths.  Their proceeds, whether they arose from suspects’ chattels or from the amercements imposed on communities which failed to attend, could plausibly be regarded as more likely to be secured if they were recorded on the spot by an official specifically charged with doing so, than if they were lumped together with all the other responsibilities of the sheriff, even if they were not also in danger of disappearing into that official’s pockets.

(e) Killers and thieves

The introduction of the coroner did not diminish the sheriff’s criminal jurisdiction, which by 1194 had probably long ceased to cover homicide, rather it clarified his role as an executive agent of the crown, working alongside the coroner to make arrests in the aftermath of the latter’s inquests – when King John granted two Somerset hundreds to Hugh of Wells in 1204, he specified that arrests or attachments arising from crown pleas were to be made by the coroners, while `when any prisoners are arrested in those manors and hundreds, justice upon whom pertains specially to our crown, they are to be delivered to the sheriff of Somerset or his officers, for them to hold and guard for as long as they ought to be in prison ...’.26  But that was to be the limit of the sheriff’s responsibilities.  He secured prisoners, and he investigated crime in his county at the periodic circuit known as his tourn, but though he could arrest and imprison the suspects named there, he did not try them.  In another charter from 1204, in which John disafforested the county of Devon, the king also ordered that the sheriff was to hold only one tourn each year, `unless for attaching crown pleas when they shall occur with the coroners and for safeguarding the peace, as long as on that visitation he takes nothing on his own behalf ...’. 27 Although the sheriff’s judicial authority where crown pleas were concerned had been steadily whittled away, his dealings with them were still such as to provide opportunities for corruption.

The evidence from John’s reign that sheriffs did hear pleas of the crown is very limited.  In an appeal of homicide from Yorkshire heard coram rege in 1208, proceedings culminated in a duel for which William de Percy, then sheriff, and Walter of Boynton, a former sheriff, were appointed justiciarii ad hoc, but their contribution to proceedings probably amounted to little more than overseeing the fighting, if indeed there was any (the outcome is not recorded).28  There may well have been more legal substance to a Rutland case heard coram rege early in 1210, concerning an unnamed man who was pursued and arrested for killing four men in the house of Robert Mauduit’s mother.  She was an important lady, the daughter of the earl of Huntingdon and Northampton, which may explain why knights of the county accompanied the coroners when they went to the scene of the crime.  The killer acknowledged his guilt, and was remanded to the next session of the county court, in case he should accuse others of acting with him in the deed.  But when the court assembled he did not do so, and was therefore sentenced to be hanged.  `And since this was a crown plea and they held it and did judgment on it without an order from the king and [without] justices being present, the whole county is in mercy.’29 

The case, and the offence, may not have been not quite as straightforward as they appear.  Had the killer been hanged immediately after his public admission of guilt, no further investigation of the case would probably have been found necessary – Bracton, some twenty years later, allowed the summary execution of one who was `arrested over the body of the dead man with his knife dripping blood’, describing this as `an ancient constitution’.30  But remanding the killer to gaol in the expectation of further proceedings removed the case from the jurisdiction of the county court, which was therefore acting ultra vires in sending him to the gallows instead of presenting him before the king’s justices, and which exacerbated its offence by ignoring an order to the sheriff to produce the prisoner coram rege,   The sheriff, Ralph de Normanville, was also in the king’s mercy, `as he handed that man over for judgment to be done on him without an order from the king, as that plea is a crown plea’.  The potential seriousness of the offence is shown by Ralph’s amercement (the only one recorded as having arisen from this case) having been set at forty marks, though in fact he was pardoned and paid none of it.31  Strictly speaking, he had not held the plea himself – it was by judgment of the county court that the killer went to the gallows – but as president of the court he had failed to stop proceedings going forward when he could have done so, and therefore bore the ultimate responsibility.

In ordinary circumstances homicide was unquestionably a crown plea, as it had been for well over a century.  The status of theft, however, may have been different, or at least uncertain.  In a charter of March 1190 granting Isaac, the son of Rabbi Josce, the right to have disputes between himself and other Jews settled according to Jewish law, Richard I had specifically excluded pleas of the crown, and named theft (latrocinio) among them,32 and an identical exception was made by John in a charter of 10 April 1201 which extended his brother’s grant to all members of the English Jewish community.33  But that theft could still be included among the sheriff’s pleas during John’s reign is suggested by recurrent payments by the sheriff entered on the pipe rolls pro juditiis et justiciis faciendis, a phrase explained by the Dialogus de Scaccario as involving trials and justice.34  On the pipe rolls they often occur alongside payments to approvers, self-confessed criminals who were maintained by the king at a penny a day, on condition that they accused and convicted their associates by defeating them in judicial combats (it was the possibility that the Rutland killer might do this that led to his being remanded after his arrest and admission of guilt).  The 1206 pipe roll, for instance, records trials and justice in twenty-one counties, or pairs of counties, and payments to approvers in nine of them, while in the following year twenty payments for trials and justice were entered on the pipe roll, with approvers appearing alongside them in eight cases.35  

Later in the thirteenth century such proceedings would be associated with gaol deliveries, and presided over by ad hoc commissions of justices appointed for the occasion, but commissions of that kind are very rarely recorded under John.  In 1207 three justices were ordered to assemble at Lincoln on 27 May to hear an appeal of robbery, and also to take assizes of novel disseisin.36  They may not in fact have heard the appeal, which was ended by a fine, but they must have tried the prisoners in the gaol, since two approvers were recorded on the pipe roll as having been paid a total of 22s. 4d. from the feast of Hilary (13 January), which at a penny a day would have covered their maintenance until exactly 27 May.37  The Lincolnshire entry on the 1207 pipe roll records payments to a total of nine approvers, and an outlay of 16s. on trials and justice, but the money may not all have been spent on a single session, for another approver was paid 6s. 10d. for his upkeep between 29 September and 21 December, and though it is possible that he succumbed to gaol fever, or simply escaped from prison, at the latter date, it is no less likely that it was then that he was brought out to confront those he had accused, and either failed to convict them, and was hanged, or overcame his former comrades and won the right to save his life by abjuring the realm.  Other entries from 1207 suggest multiple sessions.  Under Nottinghamshire and Derby, for instances, one approver was paid for 150 days, another for sixty-nine, two more for fifty-three, and one for 180.  They could all have run their course on the same day, but that seems improbable, especially as the cost of the year’s trials and justice was a relatively high 43s.38  In Surrey two separate payments for trials and justice were entered, suggesting that there had been two sessions there.39  In 1203 the sheriff of Warwickshire accounted for five marks, `for a plot of land in front of Warwick gaol bought for the pleas of the gaol ...’.40  There may have been other occasions, especially when the central courts were not sitting, when royal justices delivered gaols, but in the absence of more than the very occasional commission to this effect, it seems highly likely that `pleas of the gaol’ were synonymous with the trials and justice recorded on the pipe rolls, with an open space being needed, as at Warwick, for the fighting of duels by approvers, and that they were usually the responsibility of the sheriff, who was still empowered to exercise jurisdiction over cases of theft.

(f) Justice and finance: sheriffs as the king’s agents

Although it is possible that such a jurisdiction was coming to seem anomalous by the early thirteenth century, and may well have been as capable of abuse as any other of the sheriff’s powers, it seems improbable that that official’s ability to proceed against thieves by itself aroused feelings so strong as to generate a clause in Magna Carta.  A much more important factor must have been King John’s reliance on the sheriffs as financial agents, and particularly from his employment of them as justices, in proceedings which seem to have had little purpose beyond the raising of money.  The last normally-constituted eyres of the reign came to an end in the early summer of 1209, depriving the king of a valuable source of revenue, as well as of an agency of justice.  It must have been to remedy this shortfall that in the summer of the following year, while John was in Ireland, two judicial visitations took place; they seem to have been interconnected, and their purpose was all too evidently to make money.  For the first of them, apparently conducted only a few weeks before the second, the justices in seventeen out of twenty-four counties, as they were recorded on the pipe rolls, included either their sheriff or under-sheriff (and also a number of ex-sheriffs or men of comparable administrative experience, for instance a former constable of the Tower was a justice for London and Middlesex),41 and this figure is certainly incomplete, for another source reveals the sheriff of Berkshire as having also acted thus in his own county.  Indeed, it may well be that their sheriffs were justices in every county.42  Shortage of suitable manpower may have been one reason for their being appointed, but another is likely to have been their knowledge of the resources of the shires thus visited. 

It has been suggested that the first set of justices acted as `vacation judges to hear assizes and deliver the jails’,43 and this is given plausibility by what appears to be the only surviving record of their proceedings, which shows Matthew FitzHerbert, sheriff of Sussex, presiding over an assize of novel disseisin, and also by the amercements they imposed, which were of a kind, and on a scale, recognizably akin to those levied at conventional eyres.44  In each county the sheriff accounted for a lump sum made up of several individual debts, after which a few individual debts, almost always small, completed the entry.  But the follow-up, attributed to unidentified `autumn justices’ who visited the counties shortly afterwards, was far more severe in its fiscal impact, in a way which suggests that this second visitation was deliberately intended to complement the first, by targeting the well-to-do men of the shires, concerning whom, and their resources, the sheriffs would have been in a good position to provide information.  It is noteworthy that although a number of the men who acted as justices in the first visitation were penalised by the second, not one of the acting sheriffs who had been their colleagues suffered in this way – perhaps this was their reward for providing the autumn justices with advice about local conditions.  

There were no lump sums accounted for by sheriffs after the second visitation of the summer of 1210, and no debts owed by communities, only fines and amercements on individuals, levied at bruisingly high rates.  Sums of 100 marks or £100 were commonly demanded, while the largest sum exacted was as much as 500 marks.45   The offences were rarely defined with any precision - `trespass’ was by far the commonest.  In a number of cases the men concerned were pardoned part of their fines or amercements – as much as a half in many cases - but the residue might nonetheless constitute a significant sum, considerably higher, indeed, than was usually exacted for any offence described as `trespass.  Perhaps John thought that having demonstrated his ability to levy substantial sums in this way, he was bestowing a favour on the men thus targeted by not insisting on their paying the uttermost farthing.  But the fact that these men still owed considerable amounts, and did so for little or no apparent reason, probably aroused both fear and deep resentment against the king, and also against the sheriffs, who in acting as royal justices had been actively engaged in imposing, and then also implementing, these latest exactions.

(g) Hearing crown pleas

The sheriffs who acted as justices in 1210 had presumably been formally appointed, but there are indications that some of them were assuming judicial functions, and hearing pleas of the crown, purely on the strength of their office.  In this they were doubtless encouraged by the temporary disappearance of the eyre, which might otherwise have either heard the cases involved, or penalised such infringements of its own jurisdiction.  On 25 February 1213, in letters patent addressed to all his subjects in Lincolnshire and Yorkshire, John acknowledged that he had received many complaints of extortions and malpractices by his sheriffs and their underlings in those counties, which had moved him to appoint commissioners to investigate their alleged misdeeds and report on them to him.  At the very end of a detailed list of transgressions, almost as an afterthought, John ordered that `You are also to let us know which bailiffs have pleaded pleas which belong to our crown’.46  They could have been acting like the sheriff of Rutland in 1210, by taking cognizance of serious crimes.  But crown pleas was a term covering a wide range of activities, and provided ample scope for extortion as well as for usurpation of jurisdiction.  The sort of proceedings which were giving offence can perhaps be seen in a very small number of presentments made at eyres held after John’s death, concerning actions by officials either in the last years of his reign or in the very early years of his son’s.  One of them, reported at the 1218/19 Yorkshire eyre, did involve a felony.47  At some point between February 1216 and May 1218 one Osbert of Linton was killed in his house by unknown criminals.  Herbert le Scot, appealed of the death by Osbert’s widow, was brought into the county court, where the men of four villages convicted him of that and of numerous robberies, whereupon the sheriff, Geoffrey de Neville, `said that he was sufficiently convicted of that death and that they should hang him’.  The coroners asked nervously `if they could lawfully do this without the Justices of the lord king’, but Neville dismissed their fears, saying he had disposed thus of two criminals in Gascony (he had been seneschal there briefly in 1214), and so Herbert was hanged. 

At the eyre the Claro jurors said that Herbert had been arrested with a horse, by implication one he had stolen, and had he been charged as a thief caught in the possession of stolen goods, the county court might have been justified in having him executed, since it could lawfully exercise jurisdiction in such cases.  But no more in Yorkshire than in Rutland could a shire court do judgment upon an alleged killer who had not been caught literally red-handed, with or without the encouragement of the sheriff.  At the time of the eyre Neville was once more in south-west France, while the county court was not fully represented when this case came to light, causing the justices to defer giving judgment upon it, and it is not known what decision they reached, but they are unlikely to have approved of what was done.  Neville was a loyal supporter of King John, and the same was true of other officials said to have dealt with pleas of the crown, albeit of a different kind.  Thomas of Erdington, a long-serving under-sheriff and sheriff of Shropshire and Staffordshire who died in 1218, was said in 1221 to have held crown pleas, `namely touching the hue and cry’,48 probably indicating that he had taken money from communities which had failed to raise the hue, or to pursue suspects after the hue had been raised, instead of leaving it to justices itinerant to impose appropriate penalties.  In the same year similar allegations were made against some of King John’s former henchmen in Gloucestershire.  When an unknown man was found dead on Compton heath, apparently from natural causes, Engelard de Cigogné, who was sheriff from 1210 to 1215, was said to have `held that plea’, and to have taken a total of twenty-two marks (£14. 13s. 4d.) from two vills – probably he acted as coroner, and amerced the vills for inadequate attendance, or presentments, at the inquest he held.49  And after one Robert of Tetbury had been arrested on an approver’s appeal and placed in the custody of the men of Tetbury, his subsequent escape led to Engelard’s taking 100s. from them, this being the standard amercement for such escapes.  The justices at the 1221 Gloucestershire eyre called for judgment on him `as he held the plea’ – as Thomas of Erdington seems to have done, he had exceeded his powers by himself amercing failings which should have been dealt with by the king’s justices at the next eyre.50

In two presentments  Engelard de Cigogné was associated with Gerard d’Athée, another of John’s captains, and also Engelard’s immediate predecessor as sheriff – they had made requisitions (prisis) `by reason of crown pleas’, and they had `taken ransom for all crown pleas’.51  It was not suggested that they had been holding unlawful courts at which killers and bandits were unjustly condemned and hanged.  Again, their offence almost certainly lay rather in their exploiting the opportunities which their office gave them for making money out of the administrative practices associated with the pleas of the crown.  They extorted money from communities and individuals for releasing them from their obligations, anticipated the king’s justices in penalising those who had not fulfilled their responsibilities, and probably also took bribes for releasing to bail suspects who should have been remanded to gaol.  The sums they raised, where recorded, were generally larger then those usually exacted by royal justices, ranging from ten marks (£3. 13s. 4d.) to twenty-one marks (£14). 

Taken together with John’s employment of sheriffs in the almost overtly exploitative eyres of 1210, the recorded conduct of the sheriffs of his reign suggest that it was the fear of extortion and corruption, at least as much as the likelihood of inadequate justice, which caused the barons to decide in 1215 that the only way such misconduct could be prevented in future was the simple one of prohibiting all involvement by royal officials in the holding of pleas of the crown.  There was no geographical restriction on the clause’s implementation, as there had been in 1194, it was to apply throughout the realm, suggesting that sheriffs, in particular, were seen as likely to be too much the king’s men to be trusted anywhere with the jurisdiction in question.  The status of theft may still have been indeterminate in 1215, but it undoubtedly soon joined the other crown pleas, and thereafter, since Clause 24 was carried over into all the subsequent reissues of the Charter, it remained outside the sheriff’s control.

Citation

(a) The problem of dead debtors

Like Clause 9, Clause 26 was primarily concerned with debts to the king, but this time with those of the dead, and only when they were tenants-in-chief; it also addressed the issue of the latter’s testamentary rights.  It was based on no. 15 of the Articles of the Barons, but was made more precise when the Charter was drawn up, stating twice that the lands affected were to be those held by lay tenure (the Article spoke only of `anyone holding of the king’, which could have led to estates held in frankalmoign being brought within its compass), and requiring that the king’s officers must show a lawful warrant before entering on the property of the deceased.  It added, too, a phrase safeguarding the rights of spouses and children when setting out how such chattels as the king had no claim upon were to be distributed.  There is no obvious reason for Clause 26 being placed where it is, either among the Articles or in Magna Carta itself.  The logical place for it might appear to have been alongside Clause 9 (Article 5), which also dealt with debts to the king, and which itself followed a sequence of clauses safeguarding the rights of minors and widows.  Perhaps its having been separated from these indicates that the drafters regarded its provision concerning testaments as its more important component, and kept it apart from other more specifically financial clauses for that reason.  It is immediately followed by a clause dealing with the chattels of free men who died intestate, but is otherwise unaccompanied by similar material.

A comparison of what is recorded, or can be deduced, of the activities of the king’s agents under John with the two parts of Clause 26 suggests that it was concerned with practices which were increasingly regarded as unacceptable, but which had been allowed to develop to an objectionable extent because no formal protocols had been devised which could act as a consistent restraint on royal authority.  They were doubtless felt all the more keenly because, by being implemented shortly after the deaths of tenants-in-chief, they caught the latter’s heirs and dependents at a potentially vulnerable time.  As far as deceased crown debtors were concerned, the Dialogus de Scaccario had nothing more to say than that `the legitimate heir who succeeds a debtor should always be summoned, so that he takes up the burden along with the reward ...’,1 suggesting that late in Henry II’s reign procedure was still likely to be an ad hoc affair.  That it became at least potentially more settled during the next two reigns, indeed not far removed from the terms of Clause 26, is suggested by the deal made in 1203 by Robert Bardolf, under which he agreed to pay £1000 for the lands of his brother Hugh, a distinguished royal justice and administrator.2  First of all, the terms at which the money was to be paid were laid down, specifying that it was to be handed over in six instalments, of variously £100 or £200 each, with the last falling due at Michaelmas 1205.  Upon this all else depended, for it was directed that all Hugh’s debts, to the king and everyone else, were to be paid before his chattels were distributed – partita sint.  The reference to distribution shows that the fulfilment of Hugh’s testament was at issue, and perhaps this gave urgency to subsequent proceedings, for the king’s stringent terms were in fact met, with Robert Bardolf’s payment of the money due from him for his brother’s lands being recorded as complete on the 1205 pipe roll.

The administrative terms of the deal shed some valuable light on the way the debts left by an important figure like Hugh Bardolf were, or could be, dealt with.  It must have been the value of the chattels, rather than the chattels themselves, which was referred to, since it was ordered that Hugh’s crops and chattels were to be sold under the supervision of Reginald of Cornhill, a leading figure in John’s administration, and of Robert himself.  Robert could buy them if he wished, as long as he paid as much as anyone else was prepared to give – in other words, he would have to match the highest bidder.  But so that the king should know what Hugh had owed him, nothing was to be removed until the dead man’s bailiffs had submitted their accounts, presumably at the exchequer (on a few occasions money towards such debts was paid into the king’s chamber, but the sums were still recorded on the pipe rolls).3  Only after the accounting was complete was the king’s order for the disposal of Hugh Bardolf’s estate to be carried out, at which point Robert was to have the chattels due to him as his brother’s heir (a provision which suggests that the procedure laid down by Glanvill was still in force, giving Robert a claim on half of Hugh’s moveable goods as well as on all his lands, while the rest of the goods went to his widow).   The king also ordered that in accordance with the custom of England all Hugh’s debtors were to be required to pay the debts that his bailiffs could show were owed to him, and moreover that Hugh’s testament was to be implemented.

The most important difference between these terms and the procedure laid down in Clause 26 is the absence of any reference to the `letters patent of summons’ prescribed in the latter – from the fact that Hugh’s bailiffs were required to submit accounts, `so that from them the king may know how much he owed the king and how much [he did] not’, it is clear that the king’s officers could be required to descend upon the estate of a putative crown debtor without knowing what he owed the king, or perhaps even if he owed anything at all.  For those who had inherited such estates, the result could be quite literally devastating.  A formal summons (which seems in fact to have taken the form of letters close of summons, no doubt based on information provided by the exchequer) would not compromise the king’s rights, but by preventing unseemly haste it could bring order into proceedings, and also clarity, since although no examples of such letters are known to survive, they would doubtless have set out the amount owed, thereby ensuring that the dependents of the dead man were not taken at a disadvantage following his death and had some means of control over the taking of goods.  Without such information, heirs and executors would hardly have been in a position to enforce the Charter’s stipulation that the king’s officers were only to commandeer goods to the value of the debt owed to the crown.  But the reference, in the Bardolf case, to the sale of goods under supervision suggests that some sort of inventory was taken, and this is in line with a number of other references to views being made and inventories taken when property came into, or indeed left, the king’s hands during John’s reign.

(b) Inventories and debt collecting

Thus in 1204 the king gave order on behalf of Isabella de Mortimer, who had bought possession of two manors previously held by her brother, that the sheriff of Gloucestershire should give her seisin, `excepting the chattels from those lands which he is to have taken into the king’s hand and guarded safely by view of the sheriff’s serjeant and of Isabella herself ...’.4  The taking of an inventory is implicit in the king’s order to the sheriff of Norfolk of January 1205, that he should entrust two Stuteville manors to William de Cantilupe and also `let the king know what chattels he received there and how much they are worth’,5  and explicit in the grant, made a few months later, to Ralph de Berners of the farm of the Dorset manor of Winterbourne Strickland, following its forfeiture by Coutances Cathedral in Normandy - the sheriff was ordered `to have the corn and sheep and oxen and other stock found there valued by the view of law-abiding men and handed over to Ralph at that price ...’.6  Before the king returned the Oxfordshire manor of Chalgrove to Hugh de Malaunay in 1212, the exchequer had received exact information from its tenants about all its livestock, its crops and its staff.7  The word in the Charter translated as `record’ was also employed in the order sent to every English sheriff in 1214, that `all the things and chattels of Flemings be recorded (imbreviari) in your bailliwick and kept in safe and secure custody’ (when it was also commanded, as in the Charter, that nothing was to be removed).8

It was desirable that an inventory should always be made, and by reliable people, whom the Charter presumably wished to differentiate from the officials occupying a dead man’s estate; otherwise there was a danger (implicit in the order that only goods to the value of the debt were to be attached and listed) that more would be taken than was necessary, leaving the heirs of the deceased without redress because they could not show what had been removed.  And it was no less important, if the process of levying a debt was not to be little more than a smash-and-grab raid, that the king’s officers should first have received a formal and appropriately detailed warrant to act.  Since it was so difficult for any person of rank or standing to avoid falling into debt to the king, and given the latter’s financial needs, there may well have been a well-nigh automatic tendency for the royal officers to occupy a tenant-in-chief’s lands following his death, on the assumption that he or she must have died owing money to the crown, whose interests therefore had to be protected.  When the Cumberland baron Hugh de Morville died in 1202, the royal henchman William Brewer undertook to pay 500 marks to have the marriage of Hugh’s heir, with the disposal of her inheritance, `and for having the issues of the same lands and chattels which were Hugh’s and which are not in the king’s hand or which he did not bequeath in his testament ...’.9  Brewer, who knew as well as anybody how such matters were handled within John’s administration, clearly took it for granted that lands and chattels alike had been commandeered on the king’s behalf, even though Morville was not in fact recorded as having been significantly in debt, owing a total of £15. 16s. and two war-horses.10

Where the estates involved were modest in size, the task of securing the chattels on it was probably left to the sheriff.  After the death of the Berkshire landowner Roger de St John, around 1213, Geoffrey de Lucy undertook to pay 300 marks for the wardship and marriage of Roger’s heir, on condition that whatever had been taken from the estate should be allowed him as part of the fine.  The sheriff of Berkshire proceeded to account for £35. 2s. 9d. from the dead man’s chattels, which he had taken even though there is no clear evidence that Roger owed anything to the crown when he died.11  It was probably under the supervision of the sheriff of Lincolnshire that men described as `the king’s serjeants’ were keeping watch over land formerly held by Thomas son of William of Saleby when Adam de Neville gave twenty marks so that his own serjeant could join them, to prevent damage to his crops and livestock there.12  But where important properties, or the properties of important people, were involved, the task of managing their disposal was likely to be entrusted to royal agents specially appointed for the purpose.  In 1203 it was two royal clerks who accounted to the exchequer for the issues over six months of the lands of William de Stuteville, lord of Boroughbridge, Cottingham and Knaresborough, and a past sheriff of Cumberland and Yorkshire, in a demonstration of what could follow from the occupation by the king’s agents of the lands of a deceased tenant-in-chief.13

William had been both a powerful figure in the north and a substantial royal debtor, owing arrears from his offices as well as individual debts amounting to over £1000.  The response of the king’s men seems to have been little less than an exercise in asset-stripping, accounting for sales of grain from  eighteen different estates and for a wholesale disposal of livestock; as well as 392 cows, 1719 sheep, 1016 lambs, sixty-seven pigs, and a variety of other animals, they also sold sheepskins valued at £9. 1s. 6d., the hides of seventeen horses, and even half a ship - nothing appears to have escaped their attention.  Along with rents and other seigneurial dues, they accounted for a total of nearly £1250, out of which just 50s. were spent on the dead lord’s exequies.  William had left an under-age heir, and it is not surprising that when in July 1203 Archbishop Hubert Walter paid 4000 marks to have custody of the youth and all his lands for the next four years, he should have also taken care to obtain the grant of `all the ploughs found on the aforesaid holdings ...’.14

In this the archbishop showed himself prudent, no doubt appreciating that otherwise he might well have obtained the lands without the means of cultivating them.  It would seem that everything on a debtor’s property, crops and livestock as well as furnishings and valuables, was in principle at the king’s disposal, and remained so until the debt was cleared.  This is understandable, since the stock on an estate, however defined, clearly constituted a significant proportion of its value.  This can be seen in a list of five Wiltshire and Dorset manors drawn up in 1212, apparently to enable the earl of Winchester to implement his mother-in-law’s testament, in which each was assessed `with stock’ (cum instauro) and `without the stock pertaining to that manor’.15  The differences varied somewhat between manors.  Haxton, for instance, was worth £25 stocked and £17 unstocked, while the value of Collingbourne Ducis fell from £34 to £20 when its stock was not included.  Altogether, the difference in value amounted to almost exactly thirty-three per cent, £82 compared with £124.  No doubt it was regarded as desirable that an estate should be handed over to an heir or widow as a going concern, but the king was under no obligation in this respect, and no doubt wished to maximize what could be valuable assets.  So when in 1204 Lauretta de Fontibus paid 100 marks for the lands of her niece, the sheriff of Somerset was ordered to withhold the crops and chattels, albeit with the cynical rider that `if she wishes to buy them as they have been lawfully valued, the king wishes that she may have them rather than anyone else.’16  And when the lands of the count of Perche were granted to his widow in 1207, in return for a 2000 mark fine,17 it seems reasonable to assume that the exception from the sale of corn of the countess’s reserve stock (estuverium) constituted part of the deal she had made with the king, rather than an enlightened concern on the latter’s part for the future viability of the estate.

A case like that of Walter de Clifford, who in 1213 gave 100 marks and a palfrey for the custody of the lands and heirs of his brother Richard, and secured a directive to the sheriff of Gloucestershire `that he should cause Walter to have hay for this, the fifteenth year, and seed to sow the land’,18 along with a few other examples of lands being handed over (in return for payment) together with their crops and livestock,19 by their very rarity show that the principal concern of the king’s officers was to obtain payment of debt, and that they were not concerned about what happened to properties afterwards.  No doubt there were occasions when lands were surrendered to heirs and executors in good working order, but there must also have been times when debts were finally cleared by the reaping of crops and the removal of plough animals.  Those who made fine to recover their inheritances, it may be assumed, had to be ready to proffer larger sums if they were negotiating in or near the harvest season.  What might happen otherwise is shown by the fate of the Stuteville lands and by Archbishop Walter’s precautions, and summed up in the undertaking given in 1208 by Robert de Vieuxpont, a leading royal agent in the north of England, to account for obligations to the crown which included `all the chattels and stock and crops on the land of Ralph Tessun ...’.20  It is not surprising that processes which could have such an impact were bitterly resented, and aroused a determination to bring them under control.

(c) Wheeling and dealing

Perhaps the extent of William de Stuteville’s indebtedness was regarded as justifying the intensive exploitation of his possessions by the king’s officers, as it may have been in similar cases.  When, for instance, Roger de Lacy, constable of Chester, died in 1211 owing over £400 to the king, his lands were treated hardly less severely than Stuteville’s had been, producing just over £1500 for the crown in the twelve months which followed, with nearly £200 coming from sales of crops and livestock.21  Since Roger’s heir was granted £50 for his maintenance he was probably a minor, and so badly equipped to try to bargain with the king in order to protect his expectations.  But many others did make a deal with King John, on terms which show how anxious they were to keep the royal bailiffs away.  Some were widows, who had other interests to defend, and took the opportunity to strike a single bargain protecting all of them.  Thus in 1204 the countess of Warwick agreed to pay £1000 and ten palfreys (in effect, another fifty marks) to be able to remain a widow, to have the wardship of her children, for possession of £60 worth of lands given to her by her late husband, for her dower, `and for having the chattels of the said earl, saving his rightful testament and saving the debts owed to him and to his heir ...’.22  Although Earl Waleran had played little part in public affairs, he owed nearly £375 to the crown at his death, mostly for scutages,23 so the king’s demands on his moveables could have been considerable.  Roger de Somerville, a Staffordshire landowner, whose widow Isabella made a similar bargain in 1212, paying 100 marks and a palfrey in 1212 not to be compelled to remarry, to have the wardship of Roger’s heir, for her dower, `and for having all the chattels which were her former husband’s on the day of his death’, was a much lesser figure, with much smaller debts – a total of £9. 3s. 4d. – but clearly that did not make the prospect of a visitation by the king’s bailiffs any less unwelcome for his widow.24

In such cases King John made a deal with his subjects who offered to treat with him, on such terms as suited his needs, or even, perhaps, his mood.  Thus the justiciar, Geoffrey fitz Peter, was probably exploiting his closeness to the king when in 1210 he was able to proffer 200 marks for the lands of William de Lanvallei, a baron in Essex and Hertfordshire, and his widow Hawise, `with all their chattels, having counted within those 200 marks the things which were taken thence, together with the money received from the chattels he sold’ – in the same year the amalgamated debts of William and Hawise were recorded as amounting to £190. 6s. 8d., suggesting that a man who carried less weight in the government than Geoffrey would have had to give more.25  Political considerations might also have to be taken into account.  When William de Forz, count of Aumale, was about to come into his inheritance in September 1214, he received a number of related concessions from King John – not only were his mother’s substantial debts to the crown (a total of £2333 6s. 8d.) remitted, but `Also all the oxen, cows and sheep which our bailiffs have taken from his land, after it came into our hands, and have been turned to our use, we will have given up to him ...’.26  Since William was hereditary lord of Holderness and Skipton in Yorkshire and Cockermouth in Cumberland, the increasingly embattled King John no doubt felt that his support was worth buying, given the preponderance of northern lords among his adversaries, and indeed his attempts at political bribery may well have paid off, since although Aumale was one of the twenty-five barons who swore to uphold Magna Carta, he had moved into the royalist camp by August 1215, and with one brief intermission stayed there until the king died.

Less clear-cut, except in representing another instance of a landowner trying to protect an inheritance from exploitation, was the case of Margaret de Vernon, who in 1205 gave forty marks and a palfrey to have her inheritance at Freshwater on the Isle of Wight, which had been in the king’s hand since the death of her husband, the Oxfordshire baron John Arsic.  When the sheriff of Hampshire received orders that `if any chattels or stock were removed from that land after it came into the king’s hand, he was to have them handed over to her,’, this considerate gesture may have owed less to the fact that John Arsic’s debts to the king at his death amounted to only £38, just £9 more than his widow’s fine, than to Arsic having in 1203 proffered £100 for having temporary possession of Freshwater should his wife predecease him.27  Despite his needs, even King John may have hesitated to make further demands upon an estate for which he had now been paid twice in three years.

(d) Testamentary procedures

As so often, one of the aims the barons were trying to achieve in 1215 was the bringing of a measure of routine, of predictability, into the workings of government, so that these should no longer be manipulated in accordance with the passing needs or personal caprice of the king.  But they also had distinct rights in mind which they wished to defend or define, and one of them, set out in Clause 26, was that of bequeathing their moveable goods in accordance with what was becoming the custom of the realm, by ensuring that once any debts to the king were paid, the residue of a testator’s chattels were disposed of as he or she had intended, and of providing for the disposal of those chattels where there were no debts to be taken into account.  In this, it gave expression to a long-held desire, set out over a century earlier in Henry I’s charter of liberties of 1100 - `If any of my barons or of my men falls ill, so that he wishes to give away or bequeath his moveables, I will concur in what has been so given ...’28 – and reiterated in the `unknown charter’, seemingly a product of the negotiations leading up to the Charter - `If it happens that a baron or man of mine dies, I grant that his moveables may be bequeathed as he bequeathed them ...’.29  It was not stated in so many words, but surely implicit in the second section of Clause 26 was the belief that the rights which it granted were ones which should be had for nothing, and with which the king had no business to interfere.

It was one of the idiosyncrasies of English procedure that it made a distinction between real estate, which (except in boroughs) could not be devised by will, and which mostly descended by primogeniture, and moveable goods, which within certain limits could be freely bequeathed by testament.30  It was also customary in England – and seemingly accepted by Magna Carta, when it referred to `rightful shares’ - for a testator’s goods to be divided into three equal parts, with a third each going to the heir (later the children, who shared their portion equally) and the widow, while the last third was at his own disposal.  The fact that this last third was expected to be used for religious purposes, in bequests directed towards ensuring the salvation of the testator’s soul, gave urgency to the implementation of his or her bequests – nothing less than the fate of eternal souls might be at stake - and also helps to explain why the church (though in this, too, English practice was out of step with that found elsewhere) gained a large measure of control over the administration of testaments, and over any lawsuits that resulted from them.  Glanvill, written in the late 1180s, took it for granted that `pleas concerning testaments ought to be dealt with before an ecclesiastical judge ...’.31  The fact that the three-part division appears to have been an ancient one, recorded in Northumbria by Bede,32 does not mean that testatory procedure had become completely fossilised, indeed, Clause 26 itself demonstrates the contrary, for whereas both the Assize of Northampton (1176) and Glanvill had allotted the leading role in the disposal of a testator’s goods to his heir,33 Magna Carta stressed that it was the executors, who had previously played only a subsidiary part, who were now `to carry out the testament of the deceased’.

Evidence is sparse for the treatment of children and dependents, but sufficient to suggest that their rights were respected, but also, from the fact that a number of those affected thought it worth their while to pay the king to confirm or uphold those rights, that there was a fear – implicit in Clause 26 itself - that they might otherwise be disregarded.  Thus in 1201 Cecilia, the widow of Roger de Cressy, was recorded as owing forty marks and a palfrey for her dower, for not being forced to marry, `and for having her rightful share of Roger’s chattels’, and in the same year Matilda, widow of Adam son of Enisant, accounted for sixty marks and a palfrey for her dower, `and for having her rightful share of the chattels which were her husband’s ...’.34  When the heir was both an only son and a minor, his share of the chattels might be needed for his own upkeep, hence the lawsuit brought by Fulk Bainard against Hugh of Kerdiston in 1206 for the custody of the lands and heir of Hugh’s brother Roger, `with the chattels pertaining to the heir’ - Fulk defined those chattels as `corn in the ground, for the custody of the children and to perform the service of the land’ (the reference to children may indicate that Roger had sisters).35  In this case the heir was the dead man’s son, and Clause 26 seems to have taken it for granted both that the same regulations would apply regardless of whether the heir was of full age or a minor in wardship, and that heirs and issue would be one and the same.  Glanvill, however, had in the latter context referred only to the heir, allowing for the possibility that a tenant-in-chief’s successor, in his goods as well as in his estates, might not be his son, and in this the treatise was realistic.  In 1203 Robert Bardolf was granted those chattels of his bother Hugh which were due to him as the latter’s heir, and when Simon Wake, a minor tenant-in-chief in Wiltshire, died in 1206 owing the king five marks for a licence to hunt foxes, it was his brother Geoffrey who covered all possible eventualities by fining by 200 marks to have Simon’s lands, `and for having his rightful share of Simon’s chattels which pertain to him as Simon’s heir ...’.36  There were possibilities where inheritances and testaments were concerned which the drafters of Magna Carta overlooked, and which subsequent revisions ignored.

(e) The rights of bishops

Those charged with implementing the testaments of the deceased, whether heirs or executors, would naturally have to have to have free access to and disposal of the chattels which testators bequeathed.  The principal obstacle to their doing so was royal power, which as so often manifested itself in inconsistent, even contradictory, ways, as it sought ways of meeting the king’s financial needs.  Adam of Eynsham, in his life of Bishop Hugh of Lincoln, recorded the activities of the king’s agents, apparently including his `chief ministers’, in intercepting legacies, describing them as a `kind of water-fowl, these birds of prey, who lie in wait for the sick ...’, and described how the bishop both repeatedly denounced them and also had them excommunicated at what appears to have been a session of the royal council, in this last having King John’s full approval.37  An important element behind Hugh’s activities was his anxiety that his own testament should be implemented, an anxiety confirmed by Roger of Howden, who recorded how John visited Hugh on the latter’s deathbed, confirmed his testament, and promised that those of other bishops would be similarly ratified.38

John appears to have honoured this undertaking.  Indeed, on 30 October 1199, even before he made his promise to Hugh, he confirmed the testament of Archbishop Hubert Walter, and he did so again in 1203 (Hubert made a new testament each year).39  When Bishop Savaric of Bath and Glastonbury went on embassy to Rome in December 1200, he departed with an assurance from the king that should he die while abroad, his testament would be observed,40 while in 1207 John gave orders that the executors of recently-deceased bishops of Exeter and Chichester should be permitted to implement the testaments of those two prelates.41  In 1204 he confirmed the testament of Godfrey de Lucy, bishop of Winchester,42 and also issued letters patent directing that the bishop of London’s testament be observed;43 later he did much the same for the bishops of Rochester (1213)44 and Ely (1215), in the latter case even instructing the sheriff of Norfolk and Suffolk to distrain debtors to Bishop Eustace to pay what they had owed him to his executors, so that his testament could be fulfilled.45  The fact that up to his death in November 1215 Giles de Briouze, bishop of Hereford, had been a committed opponent of the king did not prevent John’s ordering the sheriff of Gloucester to cause Briouze’s executors to have his goods from the manor of Tetbury, so that his testament could be implemented.46

All the same, Hugh had been right to be anxious.  One possible complication lay in the claims that might be made on the property of a dead bishop on behalf of his own diocese, as a result of the practice whereby what has been described as `a permanent system of minimum endowment’, intended to ensure that supplies of corn, cattle and agricultural gear were carried over from one episcopate to another, came to be established.47  Though first recorded as such in 1222, the fact that when Simon of Wells, bishop of Chichester, died in 1207, the king ordered the keepers of the vacant diocese to allow the administration of Simon’s testament, `saving the livestock and other chattels and things which he found in the same bishopric’,48 suggests that such an endowment already existed at Chichester, and may have done so elsewhere.  But of much greater concern to Hugh must have been the crown’s right to occupy the estates of vacant bishoprics, which could easily prevent a dead bishop’s executors from going about their business, and the fact that bishops were themselves also barons, whose estates were therefore as liable to sequestration for debt as those of lay tenants-in-chief - in 1208 the bishop of Durham’s executors accounted for 2000 marks and all his plate `for the debts which the bishop owed the king, and for the amercements which he had incurred, and for the misdeeds of his kinsmen for which they were arrested ...’.49

(f) The king’s involvement

Although this last case might suggest otherwise, it does not in fact show – rather the contrary – that the king had forbidden the implementation of Bishop Philip’s testament.  Nor indeed is there convincing evidence that testators usually needed either licence or confirmation from the king to validate their bequests, though a few examples survive to show them obtaining such ratification.   King John’s empowering Eleanor of Aquitaine, his mother, to make a testament,50 and confirming that of Isabella of Gloucester, his ex-wife (four years before her death),51 probably reflected their close relationship to himself, while his ordering his agents to permit the execution of the testaments of such great men as Robert de Breteuil, fourth earl of Leicester, and Geoffrey fitz Peter, earl of Essex, may have constituted posthumous rewards for distinguished servants.52  Where bishops and laymen alike were concerned, their problem was the one inherent in the overall treatment of debts, namely that of keeping as many of their goods as possible out of the hands of the king’s agents, and of recovering such goods as had been unavoidably sequestrated once it could be shown that they ought to be returned.  Where the king’s role is recorded (rather tangentially, as often as not), it was usually less that of a licenser of testaments which were yet to be drawn up, than of an upholder of testaments which had already been made, and whose execution might be imperilled by the activities of his own officials.  This was already the case under Henry II – in 1188, for instance, the heirs of Richard Goldenere, a tenant of the honour of Gloucester, paid ten marks `for having their father’s bequests ‘53 – and remained so afterwards.

There were occasions, however, on which the king became involved in the implementation of testaments.  When tenants-in-chief made fine to have livery of their inheritances, along with any associated moveables, salvo rationabili testamento, they were in effect giving an undertaking to the king that the deceased person’s testament would be put into effect.  When, for instance, John Marshal undertook in 1211 to pay 100 marks and a palfrey for an Oxfordshire wardship, he was to receive `all the chattels which were Alan’s, saving his rightful testament’, implying that the testament was to be implemented from the goods of Alan son of Roland, and that John was to receive whatever was left, in a deal which, because it was made with the king, gave the latter the right to oversee it, and perhaps to enforce it.54  Similarly when Thomas, son of the royal justice Ralph of Arden, proffered £1000 in 1210 for the lands of his father (who had died in debt to the crown, though not to the amount of the fine), `and for having the chattels which were Ralph’s to implement his testament ...’, the bargain effectively gave the king an interest in the execution of the testament, while leaving the responsibility for it with Thomas.55 More explicitly, when in 1212 King John gave the custody of the lands of the Yorkshire baron Robert de Ros, who had (briefly) become a monk, to Philip of Oldcoates, he ordered the sheriff of Yorkshire to entrust Robert’s chattels to Philip as well, salvo inde rationabili testamento ipsius Roberti – the king was here involving himself directly in the implementation of Robert’s testament.56

In a case like that of Thomas son of Ralph, it was the heir who negotiated for testatory rights, presumably paying for them as part of the deal he made with the king.  In other cases the agents of implementation were the executors, who might likewise act with the backing of the king, which, again, they had doubtless paid to obtain.  Following the death of Thomas Darcy, a Lincolnshire landowner, in 1206,  his son Norman, supported by Simon of Kyme, fined for Thomas’s estates by 600 marks, a palfrey and a war-horse, whereupon the king directed the sheriff to hand the lands over, `and to have Thomas’s rightful testament put into effect from his chattels by his executors.’57  In the case of the East Anglian baron Gilbert Pecche, who died in 1212 owing large debts to the king, John at first entrusted Gilbert’s lands and chattels to Alexander of Pointon; he soon placed them in the hands of the mercenary captain Hugh de Boves, `with the crops of the present autumn’, but ordered Alexander to hand over `the other chattels which were Gilbert’s to the executors of his testament, having taken security from them that they will answer to us for the debt which Gilbert owed us.’58  Here it was the executors who were to receive the chattels, and pay the dead man’s debts, whereas in the Charter the king was to be paid first, before what was left was handed over to the executors.

Procedure in John’s reign seems to have been moving towards that prescribed by Clause 26, but had yet to attain the consistency which was one of the barons’ objectives.  That the gap was potentially narrowing is shown by another case from 1212, in which the earl of Arundel gave 700 marks for the wardship of the heir of the Lincolnshire baron Robert of Tattershall, and for having all Robert’s chattels, including the growing crops, having undertaken to pay all the dead man’s debts to the king - `and if any of those chattels shall be left over, he will apply them as far as they go to fulfilling Robert’s testament ...’.59  The debts, as recorded, were not very great – a little under £150 – and Arundel seems unlikely to have had much trouble clearing them, but his agreement with King John was specific that the latter’s claims were to be met first.  Robert left a widow, who remarried a year later;60 possibly she was outbid, for she seems to have played no part in the execution of her husband’s testament.  In this she differed from Albreda, the widow of William Boterel, who agreed in 1209 to give an extra 200 marks (on top of the 180 marks she had already offered for her own marriage) for her inheritance and dower, for not being compelled to remarry, `and for having all the chattels which were her former husband William’s on the day he died, both from William’s lands and her own, so that those chattels may be taken by her own hand and by view of the sheriff, and that what William owed the king may be paid from the first money [raised – de primis denariis], and that William’s testament may be implemented from the residue ...’61 – a settlement which covered much of what the Charter demanded six years later, and in very similar terms.

It should be stressed that Clause 26 did not deny that the king was entitled to recover debts owed to him by deceased tenants-in-chief, and that it allowed him a good deal of leeway in achieving that end.  Just as the first part of the clause implicitly allowed his agents to enter the estates of debtors and take what was owing, so the second part made no provision concerning the shares of widows and children, or the administration of a testament, in cases where the amount owed turned out to exceed the dead man’s assets, but effectively conceded that the claims of his dependents, and even of his soul, should take second place to the demands of the royal exchequer.  The terms of the clause show rather that it was the methods of the king’s officers, and the rapacity of the king himself behind them, which were at issue.  John and his agents exploited the vagueness of the existing regulations with regard to debt (in so far, indeed, as there were any), and the power inherent in the processes of distraint, to take more than was owed and keep too much of what was taken, while where testaments were concerned they were able to lean upon heirs and executors so that they paid the king to uphold them in what they had long regarded as rights, but which John sought to treat as favours in which they needed to be confirmed.  The result was a further cause of anger and a demand for appropriate redress.