The Magna Carta Project

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 22 was an ecclesiastical accompaniment to Clause 20, intended to secure for the secular clergy – parish priests, and the canons of certain cathedrals – the same terms which the latter clause laid down for the assessment and payment of amercements – in modern terms, fines.  They were to be assessed by neighbours (for parsons this must have meant their better-off parishioners), and the sums demanded were not to be so great as to endanger their livelihoods.  For the clergy, protection against ruin was to be secured by forbidding the inclusion of their ecclesiastical benefices, which in this context meant the land on which their churches were built, and such other property as enabled them to fulfil their essential functions, among the resources on which their amercements were assessed. 

By the end of the twelfth century land held in return for purely spiritual services, essentially the offering of prayers, had in fact come to be subjected to secular exactions, but these were made through bishops and their subordinates, rather than by sheriffs or other royal officials.  But in the later years of John’s reign even this qualified protection was largely ignored, thanks to the king’s financial needs and the effects of his quarrel with the church over the appointment of Stephen Langton as archbishop of Canterbury at the end of 1206, which led to the imposition of an interdict on England in 1208, and then to John’s own excommunication a year later.  Large sums were taken from individual clerics, and also from whole dioceses, which became leaderless and defenceless when almost all the bishops left the country rather than serve an excommunicated king.  Most of them were then administered by heavy-handed lay officials who applied themselves assiduously to raising money from them on the king’s behalf.  In 1211 so-called `gifts’ from the northern clergy brought over £3000 into the royal coffers.  One of the justifications offered for this campaign of exploitation was that the clergy whose property was seized were no longer performing spiritual services in return for their benefices.  Clause 22 was intended to protect the secular clergy against financial oppression.  It also aspired to restore a distinction between secular and ecclesiastical property which had largely disappeared in the years immediately before 1215.    

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.