The Magna Carta Project

Under King John, royal policy towards landowners owing money to the crown became unprecedentedly severe, with the exchequer increasingly prepared to seize the lands not only of men who owed the king money, but also of those who had guaranteed its payment. In a society which was founded upon land tenure, such measures constituted a threat to status, as well as to livelihood, and aroused widespread resentment, which inevitably increased as more and more people were caught up in the processes of the exchequer, either as principals or as the latter’s pledges. Clause 9 did not forbid the practices complained of, but it placed firm constraints upon their use against principal debtors, in particular by providing that chattels were to be seized before land was confiscated. And it also gave protection to sureties by ordering that nothing was to be taken from them until the resources of principal debtors were exhausted, and by ordering that when they were obliged to pay the debts they had underwritten – as it is clear that they sometimes were – then they were to be able to secure repayment from the men whose obligations they had shouldered, if necessary by being put in possession of his lands and rents. More generally, the clause attempted to bring order to the processes whereby debts were recovered, which in John’s hands, in particular, were inconsistently applied in accordance with the king’s immediate interests or personal whim.

Clauses 10, like Clause 11 immediately following it, was concerned with the effects of indebtedness to Jews (Clause 11 also dealt with debts owed to other people). In the 150 years since the Norman Conquest, Jews had gained an effective monopoly of credit transactions in England, primarily because they were not forbidden, as Christians were, to lend money at interest.  Their role as money-lenders, with the high interest rates they usually charged, along with their religious practice, made them deeply unpopular, and they needed the protection which only the king could provide.  That protection came at a high price, however, and King John, in particular, made very heavy demands on English Jews, demands which the Jews had no choice but to pass on to those who owed them money.  Eventually, indeed, John took to acting himself as a collector of Jewish debts, the more readily because many of these had in various ways come into his hands.  He taxed the Jews very heavily, and also pursued the debts owed to them, in ways which came to be greatly resented, but John persevered in his policies until Magna Carta attempted to impose limited restraints on them.  That it did not do more in this respect may have been due to an acceptance by the barons that the relationship of the Jews with the king was such as to rule out any more extensive interference with it, as well to an appreciation that Jews had financial skills which made them indispensable to England’s economic life.

Clause 11, like Clause 10 immediately before it, was concerned with the effects of indebtedness, primarily to Jews but also to other people.  In the 150 years since the Norman Conquest, Jews had gained an effective monopoly of credit transactions in England, primarily because they were not forbidden, as Christians were, to lend money at interest.  Their role as money-lenders, with the high interest rates they usually charged, along with their religious practice, made them deeply unpopular, and they needed the protection which only the king could provide.  That protection came at a high price, however, and King John, in particular, made very heavy demands on English Jews, demands which the Jews had no choice but to pass on to those who owed them money.  Eventually, indeed, John took to acting himself as a collector of Jewish debts, the more readily because many of these had in various ways come into his hands.  He taxed the Jews very heavily, and also pursued the debts owed to them.  Although direct evidence for the practices condemned by Clause 11 is very scarce, it is at least possible to see widows who owed money to Jews taking steps to protect their dowers, and also being harassed for debts formerly owed to Jews by their husbands.  The king’s exactions were greatly resented, but John persevered in his policies until Magna Carta attempted to impose limited restraints on them.  That it did not do more in this respect may have been due to an acceptance by the barons that the relationship of the Jews with the king was such as to rule out any more extensive interference with it, as well to an appreciation that Jews had financial skills which made them indispensable to England’s economic life.

Clause 12 represented a determined attempt by the barons to establish control over two of the most important of King John’s methods of taxation, by insisting that they were only to be taken with their own consent, since they claimed the right to speak for the kingdom at large.  It is arguable that the two levies were too different to be satisfactorily dealt with together.  Aids constituted one form of the assistance which lords were entitled on occasion to demand from their tenants and men, and except in certain circumstances (increasingly limited to those defined in Clause 12) it was increasingly accepted that they should be taken only with the consent of the people concerned.  Scutage, on the other hand, was traditionally taken in commutation of military service as and when the king decided, and was subject to no such constraints.  But John himself failed to make clear distinctions between the taxes he imposed, thereby justifying the barons in doing the same.  Moreover developments in political thinking in the years around 1200, which led to the king placing greater stress on the public good as justification for his demanding a tax, could similarly be used by the barons as grounds for resisting one.  In the end it seems to have been decided that aids and scutage could not be appropriately treated as effectively synonymous, and reissues of Magna Carta from 1217 onwards dealt only with scutage, but the basic principle of Clause 12, that taxation was not to be imposed without consent, survived intact.

Magna Carta would not have been granted withoutLondon’s intervention; it was the city’s rejection of King John and its opening of its gates to the rebellious barons which put the latter in a position to impose conditions on the king. Clause 13 was the most important of the concessions whichLondonreceived in return. Although it had been granted charters by Richard I and John, conceding self-government under its mayor, the city often found the rule of the three Angevin kings oppressive, as they exploited its wealth but did their best to restrict its freedom, despite their grants of charters. John’s exactions ultimately drove the Londoners into the arms of his enemies. All overEnglandcities and towns grew in size and prosperity during the twelfth century, a development regarded with suspicion by the crown and the ruling order generally. Clause 13, which was unspecific in what it gave toLondonand other towns, was as important in its acknowledgement that they now constituted a significant factor within the body politic, as it was for the actual concessions it contained.

Clause 14 was a necessary complement to Clause 12.  The latter had declared that aids and scutages, John’s principal forms of taxation, were only to be taken with `the common consent of our kingdom’.  Clause 14 set out who was to give such counsel and how they were to be assembled.  It envisaged a two tier system, as was probably traditional, with the greatest men, lay and ecclesiastical, receiving individual summonses, and the rest – ultimately everyone who held land directly from the crown – being convoked through general summonses announced by royal officials, probably in county courts.  Several hundred people might have gathered to discuss proposals for taxation.  This was in stark contrast with John’s usual methods of government.  He did sometimes hold formal assemblies which had been arranged well in advance, but usually preferred ad hoc decision-making, after informal consultations with a relatively small number of agents and courtiers, most of whom were regularly in his entourage.  Even at meetings described as councils, these men – most of them named in a celebrated list of `evil counsellors’ drawn up by the chronicler Roger of Wendover in 1211 – seem to have dominated proceedings, which also tended to be short, seldom lasting more than a day or two.  Claims in documents issued after these gatherings, that they were the result of deliberations involving many important men, are very seldom borne out by the records of attendance on these occasions.  On the whole John preferred to keep away from all but a very few of the magnates, both socially and in affairs of state.  In 1215 the magnates, and those immediately below them, responded by forcing themselves into the king’s counsels.  In 1216 Clause 14, along with Clause 12, was put to one side for further discussion, and it was then dropped from all the later reissues of Magna Carta, probably because once King John had died its provisions had ceased to be controversial.

Clause 16 was intended to prevent King John exploiting his rights so as to demand more service or money than was due to him in his capacity of feudal overlord, that is, as the man from whom all the land in the realm was ultimately held.  The king’s exactions were felt in the first instance by tenants-in-chief, who held their estates directly from the crown, but the concession embodied in Clause 16 was also capable of extension to the tenants of the prelates and barons who took the lead in obtaining it, upon whom by transference the king’s demands also fell, and who might in addition hope to find protection in it against inordinate claims by their lords.  The rights which the king was seen as misusing were not easy to define, however, which explains the clause’s failure to be precise as to exactly what it was trying to forbid.  The services concerned were primarily military ones.  There is plentiful evidence for John’s commuting these for money at unduly high rates, for his taking money from men who did not owe him such services at all, and also for his arranging that men who owed him money should pay him by providing soldiers whose wages would cost them more than the payment of their debts would have done.  A different, though related, grievance arose from repeated summonses to perform military service overseas, which was deeply unpopular and which gave rise to protests, and then resistance.  The issue was complicated by the king’s undoubted right, indeed duty, to call his subjects to arms if the safety of the realm was threatened.  But eventually John’s exactions proved intolerable.  The issue of service provided a good deal of the fuel for the baronial rebellion of 1215, and led to efforts to bring it under control in Magna Carta itself.

The financial penalties known as amercements featured prominently among the consequences of encounters with government in England in the years around 1200, especially for anyone caught up in proceedings in royal courts.  Although they became increasingly standardised, and it had long been accepted, at least in principle, that penalties for wrong-doing should not be imposed at rates out of all proportion to the offence, they could still be ruinous for those the king and his agents particularly wished to punish.  Substantial sums were sometimes exacted by King John in the earlier years of his reign (as they had been under Henry II and Richard I), while a nationwide visitation by so-called `autumnal justices’ in the summer of 1210 resulted in heavy penalties being imposed on leading members of society in every county, usually for ill-defined offences.  The sums demanded were often large even when they had been reduced by half, as many of them were, and a number of the men targeted in 1210 rebelled in 1215/16.  Although John was aware of the resentment such levies aroused, he continued to exploit the processes of justice to the utmost.  Clause 20 was the result.  Not only did it reiterate the principle of proportionality, but it also upheld another long-standing practice, whereby amercements were assessed by the neighbours of offenders rather than by royal officers.  No doubt it was felt that this would moderate the penalties imposed.  Clause 20 was unique in Magna Carta in extending the protection it afforded to free men not only to merchants but also to villeins.  Although its drafters were mainly concerned to protect the interests of the latter’s lords, who would lose by the impoverishment of the people who worked their lands, the provision still constitutes striking evidence for the way the demands of John’s government could impact upon the whole of agrarian society.

Clause 21 is a follow-up to Clause 20.  Both dealt with the imposition of amercements (monetary penalties), but whereas Clause 20 extended right across society, to free men, merchants and villeins, its sequel was concerned only with the rights of earls and barons - a small number of wealthy and powerful people.  In the early thirteenth century ranks and titles were still in flux, and the word `baron’, in particular, could still be a synonym for tenant-in-chief, someone holding lands directly from the crown, and may also have been sometimes applied to a royal servant.  But however defined, the punishment of such men’s transgressions was reserved to the king and his officers, which usually meant that it was handled in the exchequer.  The result could be a heavy penalty, assessed in proportion to an offender’s means rather than to his offence.  This was equally true of amercements as such, and of many fines which, though they were supposedly negotiated settlements, were in reality punishments, agreed to by their victims as a way of recovering the king’s favour.  The magnates wanted treatment that would be fairer in itself, and also special in accordance with their status, at a time when they were beginning to form a separate stratum in society. But they hardly achieved this, for the leading officials in the exchequer were also known as barons, and during the thirteenth century it came to be accepted that these men were the peers of the magnates, at any rate when it came to assessing the latter’s amercements, which therefore remained effectively under the king’s control.

Clause 22 extended to the secular clergy – essentially parish priests and cathedral chapters staffed by canons – the conditions laid down in Clause 20 under which free men, merchants and villeins were, and were not, to be amerced (in modern parlance, fined).  In effect, all were to be treated in the same way, with amercements being assessed by neighbours, and at rates which did not endanger the livelihoods of those condemned to pay them.  For a cleric, this meant that his specifically ecclesiastical property – basically the land on which his church was built and without which it could not operate – was to be exempted from assessment, as it was from lay jurisdiction.  In fact land which was held in return for purely spiritual services did come to be subject to royal demands, but these were made through bishops rather than secular officials, and were probably not pressed as hard as they were against the laity.  During John’s reign, however, the king’s urgent need for money, and also his quarrel with the church after 1206 over the appointment of a new archbishop of Canterbury, led to very heavy demands being made on the wealth of the clergy.  John’s excommunication in 1209, in particular, and the withdrawal of most of the bishops which followed it, left the English church largely defenceless against royal exactions, and resulted in nearly all the dioceses being placed in the hands of royal officers who were rarely concerned to preserve distinctions between lay and ecclesiastical revenues, but exploited both to the utmost.  Clause 23 aimed to restore that distinction, as well as to ensure fair treatment for the clergy in other respects.

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

The term `pleas of the crown’ covered a number of royal rights, but fundamental to them was the king’s jurisdiction over serious crimes (homicide, arson, rape etc.), and it was with this that Clause 24 was primarily concerned.  In the period immediately after the Norman Conquest such crimes had usually been dealt with in the county court, where the sheriff presided, but the twelfth century saw a steady reduction in his powers.  Justice was increasingly administered by professionals appointed from Westminster, and new controls were created, notably the office of coroner, to increase efficiency and to prevent corruption, with its attendant loss of revenue by the king, on the part of sheriffs and their subordinates.  But there were still areas of uncertainty, particularly where theft was concerned, and sheriffs could still sometimes exercise jurisdiction over matters from which they had usually come to be excluded.  In the last years of John’s reign, when the judicial system came under increasingly heavy pressure, their importance as royal agents not only allowed them to exploit their powers at the expense of those they governed, in ways which included dealing with matters arising from pleas of the crown, but they were also employed by the king as justices in judicial visitations which were largely money-raising enterprises.  The result was a blanket prohibition on the employment of sheriffs, and all other local officials, in the hearing of crown pleas, one which was maintained thereafter.

Clause 26 is concerned with debts owed to the king when they died by tenants-in-chief – men (as they nearly always were) who held their lands directly from him, and therefore included many of his leading subjects – and with how what was left when those debts had been paid was disposed of. The way in which government deals with the possessions of the recently-deceased has probably always been a sensitive issue. In the years around 1200 it was made much more so by the imprecise state of the law, which made it easy for kings and their officers to take too much, to keep more than they should of what they had taken, and to interfere with bequests. Hence the stress on formal summonses and record-keeping, intended to ensure that those affected should know both what was owed and what was subsequently removed by way of payment. The existing procedures had clearly put the heirs and dependents of the deceased at a severe disadvantage, with the result that they often found it necessary to bargain with the king in order to keep sheriffs and bailiffs off their lands, which might otherwise be stripped of goods and crops even though little or nothing was in fact owing.

The right to make a testament (in modern parlance, a will), and to have it observed, was one that the barons had been seeking for over a century. Early in his reign John declared that bishops were entitled to dispose of their goods and chattels in this way, but though he does not seem to have tried to prevent laymen from making testamentary bequests, many still felt obliged, or found it prudent, to pay for a right which they had come to feel entitled to. By the early thirteenth century it had become customary for the moveable property (not the lands) of a dead layman to be divided into three equal parts, of which two were reserved for his wife and children, while the third was expected to be devoted to pious works for the salvation of his soul. In a religious age, any interference with this process was likely to be keenly resented. The barons did not object to the principle that the king should be able to recover what he was owed by those who died in debt to him, rather they aimed to bring order to the procedures involved, and to prevent their becoming a means of extortion.

Clause 27, dealing with intestacy, was an appropriate sequel to Clause 26, which provided for the execution of free men’s testaments after their debts to the king had been paid, by stipulating how the goods of men who had died intestate, having made no testament at all, were to be disposed of. Making a testament – which was concerned with movable goods, whereas a will directed what was to be done with landed property – was by the early thirteenth century increasingly seen as a religious obligation, whereby a dying man bequeathed a third of his goods for the salvation of his soul (the other two thirds were reserved for his widow and children). But although it became established that intestacy was an offence against God’s law, attempts in the years around 1170 to make it an infringement of the king’s law as well came to nothing, and it was increasingly regarded as something to be dealt with by the church. Paradoxically, the most notable exceptions to this rule were bishops who died intestate. References to either King John or his predecessors taking the goods of intestates are scanty and often ambiguous, so that it is not surprising that Clause 27 was dropped from later reissues of Magna Carta, or that after 1215 intestacy became very largely an ecclesiastical concern.

Clause 28 was one of a group of clauses which were principally concerned with the manning and supplying of royal castles, and with the abuses which these processes might entail.  In this instance, the malpractices complained of were associated with purveyance, the procedure whereby the royal household was entitled to maintain itself by taking goods from the neighbourhoods through which it passed, against a promise of future repayment.  Purveyance gave rise to a great deal of corruption, and was profoundly unpopular, the more so as it increasingly came to be extended to the upkeep of castles as well as to that of the king’s mobile court.  His control of a considerable number of castles was fundamental to the regime of King John, who spent a good deal of money on them.  Their garrisons were usually small, but they were not only occupied by soldiers – those in county towns, in particular, also housed the sheriff and his staff, along with prisoners and hostages.  Consequently they generated a steady demand for supplies, while as the danger of civil war grew in the last years of the reign, garrisons were built up, leading to a greater use of purveyance to maintain them; once the fighting began, the rebels stocked their own castles in the same way.  Through its insistence that officials must pay cash down for whatever they took, Clause 28 was intended to remedy a widely felt grievance, and probably also to limit the number of soldiers the king was able to retain.  But by conceding that payment for goods could be deferred with their owner’s consent, it left the way open for abuses to continue.

Like its predecessor, Clause 29 was concerned with abuses originating in castles, and above all royal ones (it was capable of being applied to baronial fortresses as well, but that was probably not its primary purpose). Castle-guard, essentially garrison duty, was one of the services which men holding lands by knight tenure might be called upon to perform for their lords. It was by no means universal (it was never used to man the Tower of London, for instance), and by the early thirteenth century it had become usual for it to be commuted for cash, enabling those to whom the service was due to hire mercenaries instead. The rates of commutation were probably increased sharply in the years leading up to Magna Carta, as the king strengthened his castles and reinforced their garrisons. Stipulating that men willing to perform castle-guard in person should be allowed to do so curbed a method of extorting money, and it also gave the tenants concerned a potential role in the manning of royal castles which could have resulted in their being able to control them, or at least to reduce their trustworthiness, to John’s disadvantage. Straightforward financial issues probably lay behind Clause 29’s second provision. A knight could be required to serve in the king’s army and also in his castles, and performing the one service did not exempt him from the other – no doubt he had either to hire a substitute or pay cash in commutation for the service he did not perform, at rates imposed at the whim either of the king or of the officials charged with collecting the money. After 1215 the amount of castle-guard he was called upon to provide was reduced in proportion to the time he spent with the army.

Clause 30 was another clause directed against misconduct by officials, pre-eminently royal ones, but possibly (the reference to `anyone else’ is ambiguous) baronial ones as well. In protecting the horses and carts of free men (and nobody else) against arbitrary seizure, it aimed to prevent the undue exploitation of the crown’s ancient privilege of purveyance (also restricted by Clauses 28 and 31) – its right to take goods it needed against only a promise of future repayment. In this case the goods in question were the means of transport, in the shape of horses and carts. Armies had to have the means to move their supplies, as did the court as it travelled around the country. King John was an exceptionally mobile ruler, and also a rapid one, thanks to the increasing use of horses rather than oxen for the transport of goods. In the period immediately before Magna Carta, moreover, he and his agents oversaw a large-scale programme of restocking castles, as a precaution against rebellion. The king’s need of horses and carts was accordingly constant and great, but his ability to commandeer them was highly unpopular, not least because the promised repayment was not always adequate, if, indeed, any was made. Restricting John’s ability to take the means of transport would bring an abuse under control and also reduce the king’s military effectiveness. The barons aimed only at restriction, however, not abolition, and horses and carts continued to be taken after 1215, albeit with further restrictions added to the texts of Clause 30 in 1216 and 1217.

Clause 31 was the fourth and last in a sequence intended to prevent abuses of power by officials, especially royal ones and particularly where castles were concerned. Castles were essential to the maintenance of the king’s authority, and they needed a great deal of timber. Some, indeed, were entirely made of it. Henry II and his sons not only exploited to the full the rights which forest law gave them, they also felled large numbers of trees on lands forfeited by rebels or the estates of vacant bishoprics, when these came into their hands, and moreover they appear to have claimed the privilege of taking timber needed for the upkeep of their fortresses from nearby woods, regardless of who owned them – the evidence for this practice consists mainly of exemptions from it, which were very rarely granted, showing how important it was to the crown. Although the evidence is meagre, it is clear that King John maintained the pressure on his subjects’ woods, and intensified it in the later years of his reign, as the danger of rebellion grew and his castles needed strengthening. It aroused resentment in itself, while curbing it also had the effect (like a number of other clauses) of weakening the king militarily. But the barons did not try to abolish the king’s right to take timber for his castles, only to make it subject to consent.

Clause 32 was concerned with the disposal of the lands of free men who had been convicted, either in court or (through the process of outlawry) in their absence, of the serious crimes known as felonies. By the early thirteenth century it had become established, probably after much debate, that such lands should be held by the king for a year and a day, and then be restored to the lord or lords from whom the felon had held them, though only after royal officials had first removed everything on them, down to the houses and trees. But there was always the danger that the king, who had usually occupied such lands from the time the felon first came under suspicion, would also hold onto them after his or her conviction. There are signs of Henry II acting thus, and clearer evidence for its happening under King John. Not only did he occasionally arrange for lands which had reverted to their lords to be granted out again by them to servants of his own, but on a number of occasions he took money from lords for returning to them lands forfeited by their tenants, sometimes explicitly after the estates in question had been in the king’s hand for more than the prescribed period. In several cases the process of recovery was delayed while an inquest was held, to ensure that the king had received his due from the lands, not to safeguard the interests of their lords. The sums involved were often modest (though £30 was paid on one occasion), but none should have been given at all. Those affected could be magnates – the earl of Devon in one case – but many were relatively humble landowners, again showing how far down free society John’s fiscal measures could have an effect, and be resented accordingly.

Clause 33 is unusual, in that it demanded action to remedy an abuse apparently unconnected with the actions of the king or his agents.  Mainly intended to benefit the city of London, it was extended to cover the whole of England, in ordering the removal of fish-weirs from rivers  In the form complained of, they had probably been relatively recently introduced from the Continent.  Substantial V-shaped structures of wood and sometimes stone, which were set in riverbeds to catch fish by guiding them into central baskets or nets, they proliferated in the Thames, where they helped to provide food for London’s growing population, and also to meet the needs of the devout who ate fish instead of meat on the numerous religious fast-days.  But they also constituted serious obstructions to river craft, and hence to trade, both upstream and downstream of the city, and presumably hindered navigation on other rivers as well.  The explicit exclusion of coastal weirs from Clause 33 was no doubt principally due to their being usually less likely to obstruct shipping than riverine ones, but it may also reflect the fact that secular and ecclesiastical magnates were the likeliest owners of such devices along the shores.

Uniformity of weights and measures was something English kings had been trying to achieve since well before the Norman Conquest, in attempts to overcome local variations which hindered the effectiveness of government and hampered trade. It was an uphill struggle, and even very recent efforts sometimes failed. The clauses relating to the measuring of cloth in an enactment of 1196 were abandoned in 1202, while King John’s attempt to fix the price of wine in 1199 met so much resistance that this, too, was given up. But although such initiatives could be intrusive or over-ambitious, it would appear that inLondon, in particular, they represented aspirations that were generally welcome. In fact Clause 35 was one of the elements in Magna Carta which instead of pointing to resistance to recent developments in governmental practice, show that there was a demand for more of it. Its recommendation for weights was vague, and nothing was said about prices, but it demonstrates that where measures were concerned the interests of the crown and of English merchants coincided.

In the late twelfth century jury trial began to replace trial by ordeal as the principal method of proof in the king’s courts in criminal cases. The process whereby accusations of serious crimes, for which conviction might result in hanging or mutilation, were decided by juries’ verdicts was a slow and uneven one, however, and took time to become settled. The most important agency in this development was the writde odio et atia(`of hatred and spite’), which was ostensibly intended to discover whether an accusation had been made maliciously, but which was often used to decide simply whether an accused man or woman was guilty or not. This writ may not have been precisely identical with the `writ of life or members’ referred to by Magna Carta, but it often served the same purpose. Writs of this kind could be expensive, and might even be refused altogether. Clause 36 was intended to bring order into the process of securing jury trial for those who wanted it, and seems to have been largely successful.

Clause 37 was concerned with wardship, and with the ways in which a king could exploit his particular rights in it.  All lords had the right to wardship – the custody of the heir, and property, of a free tenant, when that heir was a minor – and the king was no exception.  But his rights were more extensive, since what was known as his `prerogative wardship’ gave him the right to the custody during a minority not only of the land which a tenant-in-chief had held land directly from the crown, but also of all the property which such a tenant had held of other lords.  The fact that by the early thirteenth century there was a variety of tenures under which men could hold land freely, that they were often confused with one another, and that they could be unstable and liable to change, created opportunities for the exercise of prerogative wardship which Magna Carta aimed to restrict.  (That the drafters of Magna Carta clearly found it difficult to produce a satisfactory text of this Clause is a pointer to the complexity of the basic issues.)  Although a passage in Clause 53 suggests that there were opponents of King John hostile to prerogative wardship as such, Clause 37 did not attempt to abolish it, only to limit its application.  Actual evidence for its exploitation is limited, and cases can be more often suspected than demonstrated.  But the abbot of Bury St Edmunds was recorded as expressing anxiety about its impact under Richard I, and King John was sufficiently aware of its effects to be willing to remit them when he wanted to grant a favour.  The  widespread inquests into tenures which he ordered in 1212 may have been partly organised with an extension of prerogative wardship in mind, and have aroused fear for the same reason. The resentment provoked by John’s pursuit of this right is shown by Clause 37 itself, in which the king was compelled to renounce his claims to the wardship of lands which sub-tenants had held by knight service from other lords, if he had no other justification than that they had also held land from himself by non-military services.

Clause 39, one of only four from the version of Magna Carta issued in 1215 still to be found upon the statute book, was intended to place constraints upon the crown’s executive powers by subjecting them to law, as that was determined either by judgment of peers – that is, by a man’s social equals – or by the law of land, a phrase covering alternative methods of proof like the ordeal or trial by battle.  Its benefits were specifically restricted to the free, it was not intended for serfs.  Medieval thought contrasted law with will, but the two were not easily separated, especially under powerful, and also unpredictable, rulers like Henry II, Richard I and John.  The actions of those kings were many times recorded as arising from their anger or malevolence, and their victims were often among the great men of the realm (the murder of Archbishop Thomas Becket in 1170 is the best-known example), but could also be found at much lower social levels.

The coercive powers at the crown’s disposal were great, and when due process was followed their exercise was perfectly lawful.  King John made full use of them, to raise money, to discipline and to punish, but all too often without regard to legality.  The most effective weapon in his armoury, and the one he most often used, was disseisin, deprivation of land, which, moreover, was often accompanied by the removal of everything on a sequestrated property.  The evidence shows that it was used against free men and women of all ranks and for all kinds of offences, serious and insignificant alike.  Slowness in paying a debt, an infringement of forest law, simply provoking the king’s anger – all could lead to dispossession.  Supplementing disseisin were the other forms of coercion listed by Clause 39, ranging from arrest and imprisonment to physical destruction (probably comprehended within the term `ruined’).  All were deployed at the will of the king, for instance to extract money from English Jews or to browbeat the clergy during the Interdict.  A government violent in its actions was no less violent in its use of words, and indeed was sometimes so indiscriminate in its measures that it lost track of its reasons for taking them, and had to find out what they were, or to correct actions carried out by mistake.  The sheer extent of the power at the king’s disposal made injustice easy for him to inflict, but hard for those who suffered from it to remedy.  There are signs that demand for legal remedy was growing even before Magna Carta imposed one, while the rebels of 1215/16 included many who had suffered from the kinds of wrongs which Clause 39 aimed to prevent.  Its solution, an insistence on the observance of due process before any kind of coercive action was taken, constituted an important step towards the separation of law from government.

Clause 40 is the shortest in the whole of Magna Carta – just nine Latin words. But it covered a wide range of judicial activity, along with the king’s capacity to exploit and misuse it. Essentially it required the king to step back from the position of advantage which he had long occupied in his capacity as the realm’s supreme upholder of law and provider of justice, a position which had, indeed, become potentially more advantageous in the late twelfth century thanks to Henry II’s reforms and innovations. Instead he was to forego the opportunities which it gave him to manipulate the administration of justice to harm his enemies and benefit both his friends and himself.

The ways in which Henry II and his sons used the processes of the law to their own political, administrative or financial advantage can be seen most clearly in the case of King John, not least because the records from his reign are much fuller than those from the time of his two predecessors. They show him taking a close interest in the proceedings of his courts (one of which, the court coram rege, originated in his reign and very possibly on his own initiative), and provide evidence for his capacity for the creative and disinterested administration of justice. However, the uneven development of legal processes in the years on either side of 1200 meant that great lords (essentially tenants-in-chief, holding their lands directly from the crown) did not yet have access to all the legal remedies available to lesser men, which in turn gave the king a good deal of latitude in his handling of disputes between them. Although John did not always take advantage of this, there were occasions when he did so. He could be partisan in his decisions, or take money to favour one side at the expense of the other, and he might use his control of the courts as an instrument of revenge – in 1210 he was said to have ordered his officials to deny justice to the Cistercian abbots who had just refused him a grant of money. In some cases involving powerful men, political considerations were allowed to take precedence over legal ones. Robert FitzWalter and Fulk FitzWarin, who both later rebelled aganst the king, both appear to have suffered in this way, either losing inherited property and rights or having to pay for what should have been theirs for nothing. In the dispute in 1200 between two important Yorkshire barons, William de Mowbray and Robert de Stuteville, John accepted proffers of money from both parties and then presided over a settlement highly favourable to Stuteville, but still required Mowbray to pay what he had promised. An action over land in Cumberland ended in 1206 when the defendants, Robert de Courtenay and his wife, proffered over £200 for the disputed property, whereupon the plaintiff, Alexander of Caldbeck, abandoned the case, `as it does not please the king that he should have it.’.

John’s weakness in the administration of justice, as in so many things, was his lack of consistency. He was capable of providing good justice, and often did so, but his impartiality could never be relied on. There are signs that in the early thirteenth century the idea of objective justice, administered without regard to the interests of the king who controlled its processes, was gaining ground, not least among the royal justices. Clause 40 (which is still on the statute book) constituted an important step towards the eventual realisation of that process.

Clause 41 was principally a concession to the city ofLondon, which by opening its gates to the rebellious barons on 17 May 1215 made it at least temporarily impossible for King John to resist their demands for sweeping reforms.

The reigns of Richard I and of John himself had seen heavy new customs duties imposed on merchants trading to and fromEngland, while the wars of both kings against Philip II ofFranceand his allies led to frequent restrictions on the movement of people and goods. Under this clause, foreign merchants were to be able to trade freely withEngland, paying only the traditional customs on the goods they imported and exported. In times of war they were to be treated in the same way that English merchants were treated in the hostile territories. Clause 41 remained in force after 1215, and seems to have been generally observed.

Clause 42 complemented Clause 41, extending the freedom of movement granted in the latter to merchants to the rest of the king’s subjects. The king’s right to control movements to and from England, facilitated by its being an island, went back at least to the eleventh century, and perhaps much earlier. It is probably not an accident that a large proportion of the surviving evidence for the implementation of this right relates to churchmen, members of an international community whose dealings with Rome, as the seat of a higher power than the king’s, often had the potential to be detrimental to royal authority. The quarrels of Henry II with Thomas Becket, and of John with Innocent III and Stephen Langton, both prompted greater determination to control comings and goings between England and the Continent, and in doing so generated a power which could also be exerted over laymen and which constituted an asset that no government was likely to surrender lightly. Nor, in fact, was it given up, for the clause was dropped from the later reissues of Magna Carta.

Escheats were baronies which had come into the king’s hands through the forfeiture of their previous lords, most often for treason, or as a result of a failure of heirs. The tenants of such lordships which were not granted away again, but remained in the king’s hands – like the four identified by name in Clause 43 – risked being treated differently from before. Now holding their lands directly from the king, they could be regarded as tenants-in-chief, and as such might be exposed to more direct pressure and heavier demands, especially for `reliefs’, the sums due on succession to free property. On the whole this did not happen under Henry II and Richard I, or in the early years of the reign of King John, but as time passed the latter began to step up his demands on escheats, and also on their ecclesiastical equivalents, bishoprics and abbeys which the death or translation of their holders brought into his hands, where they might stay for months or even years. The king’s excommunication in 1209 led to a number of these coming under royal control, and to their intensive exploitation, and secular escheats were increasingly treated in the same way, with the honour of Lancaster being especially hard hit. Their resources were carefully investigated in order to maximise returns, which were often paid directly to the king rather than to the exchequer. In a few instances tenants were able to pay to avoid having additional burdens placed upon them, but most efforts failed to avoid demands which became ever heavier – in 1213 the tenants of some escheats, both secular and ecclesiastical, were required to pay scutage at the rate of ten marks (£6. 13s. 4d.) per knight’s fee, compared with three marks (£2) demanded elsewhere. It is not surprising either that the tenants of escheats should often have been prominent in the rebellion against King John at the end of his reign, or that their interests should have been represented by a clause in Magna Carta forbidding the king to treat escheats in ways different from those used by their previous lords.

Clause 46 was concerned to protect the rights of barons who were patrons of monasteries founded by their ancestors. These were valued for reasons spiritual and secular, both for the prayers they offered and for their being places of family burial over several generations, and because the churches attached to them could be used to provide livings for the clerks of a patron, who could also expect to have temporary custody of them after the death of an abbot or prior, and a role in the choice of his successor. The king had all these rights in monasteries of royal foundation, and in those founded by others when circumstances – for instance when he exercised rights of wardship after a lord died leaving a minor as his heir – brought them into his hands. There is also some evidence that Henry II and his sons claimed a patron’s rights over all monasteries which were abbeys – in other words the most important ones. Evidence is scarce for King John’s usurping a patron’s rights at a time of vacancy, but sufficient to show that it could happen (gaps in the records may well conceal other cases). At Kenilworth Priory, for instance, a disputed election gave John the opportunity to install a prior of his own, and to take the revenues of the monastery for several years, without the least reference to the patron, Henry de Clinton, who subsequently rebelled against the king. Barons and knights set a high value on their rights in monasteries associated with their families. A wiser king than John would have known better than to infringe them so blatantly.

The giving and taking of hostages – living pledges that the person giving them would fulfil obligations towards, or refrain from hostile acts against, whoever received them – was generally regarded as an acceptable practice on the part of European rulers in the years around 1200. Richard I had had to find a total of sixty-seven hostages for the payment of his ransom in 1194. Clause 49 did not forbid King John to take hostages in future, but in its wording it pin-pointed what was most objectionable in his exploitation of them, that he took hostages and also charters – written documents promising faithful service on pain of perpetual forfeiture of lands – from his own subjects, and did so in large numbers. That he did so reflected his own suspicious personality, and his inability to govern except through threats and fear. He took hostages at all times in his reign, sometimes holding them for several years, when they might be detained in castles, monasteries and towns, or even in the keeping of the queen. Contemporary law distinguished hostages from prisoners, but both might be kept in chains, while hostages lived under threat to life and limb. This especially applied to those from countries outside England’s borders – John notoriously had some thirty Welsh hostages hanged in 1212. That year’s conspiracy against the king’s life led to a quantum leap in hostage-taking, creating whole networks of intimidation which extended throughout the kingdom – a development which explains the inclusion of Clause 49 in Magna Carta. Some hostages were then released, but the outbreak of civil war later in 1215 saw John revert to his previous practices, and rebels who surrendered in the last months of the reign were regularly required to pay a fine and give hostages, together with a charter pledging future loyalty. Such constraints were still needed by the minority government at the start of Henry III’s reign, but were soon dispensed with, and were very seldom revived thereafter.

The large Clause 52 provided for the restoration to their previous owners of lands of which they had been dispossessed – `disseised’ – by King John, his father or his elder brother. In doing so it was in effect retrospectively implementing Clause 39, in which disseisin was one of the actions against his free subjects which the king renounced for the future. The length of Clause 52 was largely due to the complications arising from John’s having taken the cross on 4 March 1215, and his claim to the right allowed to crusaders to be exempted from legal proceedings while they were absent on crusade. Eventually it was decided that his own disseisins must be remedied at once, but that those of Henry II and Richard I should wait until his return. That still left much needing attention. Disseisins could be effected by stealth, or by the manipulation of the processes of the exchequer or of the courts, but they were most often carried out by force. John had been dispossessing men of their estates from the beginning of his reign, often temporarily but sometimes for extended periods. The conspiracy of 1212 had led to many disseisins, and the same was also true of the outbreak of rebellion immediately before Magna Carta was negotiated, when sweeping orders for the seizure of lands created much confusion.

It was clearly anticipated that John would resist at least some of the efforts which would be made to recover estates he had confiscated. When that happened the twenty-five barons responsible for enforcing Magna Carta as a whole were to give judgment. It is not clear how often they were called to do so. There is some evidence that they were active in this way, but it is also possible that John sometimes anticipated their decisions and had lands handed back before he could be instructed to do so. In other instances he certainly dug his heels in, for instance that of Knaresborough Castle, which had come into his hands as the pledge for a huge fine offered, but never paid, by Nicholas de Stuteville. Although the twenty-five eventually ordered the castle’s surrender to William, he could not recover it. His case was typical in that although the orders and claims made in the weeks after Runnymede show that the potential beneficiaries of Clause 52 came from all levels of free society, it was the wealthy and powerful who had been most often targeted by John. Nor had they only lost lands, for as the Clause records, they were also entitled to recover rights – like Eustace de Vesci’s freedom to hunt with dogs on his home territory in Northumberland – and castles, an essential asset for any self-respecting magnate. Some barons, indeed, seem to have claimed more than they were entitled to, either in lands or in castles; William de Mowbray’s bid to obtain York Castle, by reference to the findings of an inquest which had almost certainly never taken place, was a particularly egregious example. Like Clause 52 itself, Mowbray’s attempt to exploit a moment of royal weakness for personal advantage underlines the extent to which relations between king and barons broke down during John’s reign.

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

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

Magna Carta was negotiated by the king and the magnates. Clause 60 extended its benefits beyond the latter, by requiring that all the lords in the kingdom, and not only the barons confronting John, should observe the provisions of the Charter in their dealings with those beneath them (that largely meant free men, but where it was applicable to villeins, as in the stipulations of Clause 20 relating to the assessment of amercements, then the unfree could gain as well). The Clause may have been included with some reluctance on the part of the barons, but the pressure upon them from their knightly followers probably made it impossible for them to exclude the latter from the Charter’s benefits. There were also possible advantages for the king in the Clause’s inclusion, in the opportunities it might create for royal interference in disputes between lords and tenants in disputes in which the Charter was invoked, and it may have been to avert that risk that a clause was added to reissues of Magna Carta from 1217 onwards, protecting baronial rights in terms which could have prevented the king’s intervention.

It is difficult to say how much protection free tenants needed against their lords, but there were certainly occasions when the latter can be seen acting oppressively at the former’s expense, or when safeguards were provided against their doing so. Imprisonment, extorting money, requiring more in the way of services than was owed, and especially depriving men and women of their lands without a court judgment – all were alleged against lords as they were against the king. Archbishop Hubert Walter and his brother were both said to have made free with other people’s estates. The earl of Arundel acted in anger to seize land, the earl of Norfolk used force to keep a tenant out of his property, in both cases behaving much as King John did. The great ecclesiastical lords, though they could also be victims of magnate unscrupulousness, were quite capable of acting wrongly themselves. Abbot Samson of Bury St Edmunds flooded his tenants’ gardens in order to improve his fishpond, and refused point-blank to provide a remedy. Clause 60 contained no provision for its own enforcement. After 1215 it seems to have been most often appealed to by the king, requiring his barons – as they may have feared he would in 1215 – of their responsibilities towards their tenants and subordinates. Impossible wholly to overlook, Clause 60 served as a reminder to the whole of free society of the scope and purpose of Magna Carta.