The Magna Carta Project

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.

Dealing with what is owed to it by the heirs and dependents of the recently deceased is a test of the sensitivity, as well as the efficiency, of any government. Clause 26 suggests that King John’s government was much more efficient than sensitive, and was both aggressive and predatory in its pursuit of its claims. The barons responded by trying to prevent royal agents from taking more than was owed, by requiring that before anything was removed a formal summons should be issued setting out exactly what was owed, and that a full inventory should be taken of the dead man’s goods, which would help to ensure that anything taken in excess of the debt was later returned. In this way the clause pinpointed the two principal malpractices committed by the king’s men as they went about the task of debt-collection.

The clause also dealt with the disposal of such goods as were left when any debts had been cleared. By 1200 it was customary for these to be divided into three equal portions, of which the widow and children received one each, while the remaining third was placed in the hands of the dead man’s executors, who traditionally distributed it for the good of his soul, in alms or in gifts to the church. Securing the right to dispose of their goods in their testaments (nowadays usually referred to as wills) was something the barons had been trying to achieve for over a century before 1215. In a religious society, the saving of souls was a vital responsibility for the heirs and executors of the deceased, and anything that endangered it was likely to be resented and resisted. The barons did not dispute that debts to the king should be paid, but they objected to the often violent and dishonest methods used to achieve this, and to the way in which the king exploited his power at the expense of dead men’s dependents.

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.