The Magna Carta Project

Origins and purpose

Clause 39 of Magna Carta made a succinct first appearance in the so-called `Unknown Charter’, which probably represented points for discussion, and occasional agreement, between the king and his adversaries in the early months of 1215.1  The first clause of that document brings together the substance of Clauses 39 and 40 in a concise declaration that `King John grants that he is not to arrest a man without judgment, nor to take anything for justice, nor to perpetrate injustice.’  By the time the Articles of the Barons had been drawn up, most likely a few days before 15 June 1215, that single sentence had been expanded into two discrete clauses, with its first section enlarged from nine words to the thirty-four of Article 29.  Except in omitting the word vi (`with force’) from its bars upon royal actions, Clause 39 followed that article in the ground it covered, but – with a stylistic incongruity which is found in many of the Charter’s clauses – changed from an impersonal prohibition to a personal disclaimer half way through its length, when after six of the ways in which a free man could be punished or harassed had been individually forbidden, the king himself, speaking in the first person plural, promised not to employ any additional form of violence, before the clause ended in an undertaking not to proceed in the ways forbidden except by due form of law. 

 

The position of Clauses 39 and 40 in Magna Carta (matching that of their equivalents among the Articles) is not easily accounted for.  They might reasonably have been expected to come first, like their originator in the `Unknown Charter’.  They have always attracted the attention of later generations, and it is inconceivable that the barons in 1215 did not regard the issues confronted by them as being of the first importance, but they did not give them numerical priority, preferring instead to start with the freedom of the church and then to work their way through the abuses they wished to remedy, sometimes, indeed, bringing them together in groups linked by topic, but ultimately without any obvious concern for ordering in terms of either importance or thematic consistency.  Clause 38 in the Charter, controlling the way in which bailiffs could legitimately bring people to trial, raises expectations of a sequence of enactments concerned with the administration of justice which are hardly fulfilled, since the clauses immediately following Clauses 39 and 40 are concerned with such issues as freedom of movement for merchants, tenants on escheated honours, and summonses to forest eyres.  Moreover, the clause ordering the restitution of property to those unlawfully deprived of it, which could logically have followed Clause 39, is instead placed fifty-second in the Charter (among the Articles this had been number 25, where it was at least somewhat nearer to the injustice it aimed to rectify). 

 

Clauses 39 and 40 have been criticised for their broad and general character,2 and it is possible that efforts to make them more precise delayed their formulation and led to their being allotted a later place in both Articles and Charter than they might otherwise have occupied.  Be that as it may, the criticism seems less than fair.  They were probably as exact as was possible in the circumstances, given that justice took many forms and injustice more still.  Clause 39 listed the ways in which the king and his agents had been accustomed to attack, plunder and impose upon free men, and forbade them to act thus in future except in those circumstances which, as defined in the Charter, could alone give them legitimacy. 

 

Clause 39 of Magna Carta was restating a universally accepted principle when it declared that no action detrimental to a free man’s life, limb or property was to be taken without a prior judgment in a lawfully constituted court (which could be a church court when ecclesiastical property was at issue – in 1205 Nigel de Luvetot paid fifteen marks to have the king remove the men occupying Spofforth church, `and that he will not allow him to be deprived of it except by judgment of a lay court or Court Christian’).3  It is the conclusion of the clause, forbidding royal action against any free man except by `the lawful judgment of his peers or by the law of the land’, which has prompted most scholarly discussion.4  There seem to be no reasonable grounds for doubting that the Latin vel, though capable of being idiomatically translated as `and’, should here be understood as meaning `or’ – that is how the contemporary translator of the Charter into French understood it, when he chose to render vel as `o’ rather than `e’, forms of `or’ and `and’ which he used throughout his text.5  But the presentation of judgment and law as alternatives, which to present-day eyes appears to be making a distinction between verdict and sentence, is arguably more apparent than real.  The text is in fact speaking of judgment rather than proof, but the two formed inseparable parts of a single process, and Clause 39 must have been concerned with both.  In ordinary circumstances a court gave a first judgment as to the means of proof whereby the truth was to be established, and then once the proof had been made (or had not been made) delivered a further judgment as to how the case should be concluded. 

 

The voice of a court, whether of a county, a hundred or an honour, was traditionally that of its suitors, who owed attendance – suit – there because this particular responsibility had come to be entailed upon their landed holdings, and whose duties included making the judgments of the court concerned.6  Just as some holdings were larger than others, so some suitors enjoyed greater wealth and higher status than others, and played a more prominent role in the affairs of the court.  But overall it can be said that all the suitors were landowners of like rank to a free litigant’s own, and that when they agreed upon a judgment on the latter they did so as his equals, his pares.  That this was a man’s entitlement was a long-established principle, on the continent as well as in England.  The early twelfth-century Leges Henrici Primi declared that `Each person is to be judged by men who are of equal status and from the same district as himself’,7 and it was in that sense that grantors of charters sometimes referred to their peers when they recorded gifts of land,8 and that Roger Bigod, earl of Norfolk, paid 1000 marks in 1190 `for his county of Norfolk, and that his brother Hugh may not be put in seisin of any of the lands which were his father’s unless by judgment of the king’s court made by his peers’.9  Those peers would have been Roger’s, not Hugh’s – unlikely to have entrusted a decision concerning his inheritance to the equals of his illegitimate half-brother, the earl will have used the term in the same sense as Clause 21 of Magna Carta, to signify men of his own high standing.

 

Judgment of peers was not the same as a jury’s verdict, as a proffer made in 1206 shows; Alan of Beadlum, a minor Yorkshire landowner, was prepared to give a palfrey, conventionally valued at five marks (3. 6s. 8d.), `not to be disseised on account of any inquest unless by the judgment and decision of the king’s court’10 – the finding of the inquest was not by itself to be sufficient to cause Alan to lose his land, only the decision of the court consequent upon its finding could do that.  Even so, the jury’s verdict was moving in that direction, in that the recognition, of twelve free and lawful men of the neighbourhood, which had been brought into ever-increasing use by Henry II’s assizes, could easily be equated with judgment of peers. But there were several other modes of proof available at the time that Magna Carta was drawn up, for instance ordeal, compurgators or battle (which might themselves be reinforced by charters, witnesses or oaths), and each of these constituted legal process in English courts, along with the recognition, and could lawfully be awarded as the touchstone of truth in proceedings involving the free men to whom Clause 39’s benefits were specifically confined. 

 

Beneficiaries: the magnates

Clause 39 was in effect upholding customary practice where legal process was concerned, and doing so specifically on behalf of all free men.  But although it was not composed for the sole benefit of the magnates, the latter certainly had a particularly keen interest in its inclusion in Magna Carta.  Their relations with any king often turned on matters of property, and of the rank and standing associated with it, but when such issues arose they were seldom determined according to legal criteria alone.  The king had to do justice to his greatest subjects, lay and ecclesiastical, but he had interests of his own to maintain, which could not always be upheld according to the strict letter of the law.  He had to establish and preserve in his realm a balance of power which tilted in his own direction, and his control of the courts provided him with an important means to this end.  Law could be an instrument of patronage, of the bestowing and withholding of favours, which if skilfully handled would not drive men into opposition, or even rebellion, but could still be manipulated, in Sir Richard Southern’s words, `to reward those who mattered, and to ensure that those who were not rewarded continued not to matter.’11  The result might indeed be compromises which pleased nobody and judgments which offended the losers without necessarily satisfying the winners, but the association of politics with law, as with anything else, could no more be depended upon to produce a tidy outcome in the twelfth century than in any other period.  What mattered, from the king’s point of view, was his ability to variously advance the men he trusted, fend off those he did not, and play upon the hopes and fears of both in such a way as enabled him to retain their loyalty, or at any rate frustrate their disloyalty.

 

From the magnates’ point of view, of course, the use of law as an instrument of patronage could easily entail what they saw as rank injustice, especially for those who did not enjoy the king’s favour.  Indeed they were all the more likely to regard the working of the courts in which they appeared as litigants with a prejudicial eye because by 1215 they were increasingly controlled by the king and by his supporters and agents.  John himself frequently presided in the court coram rege; proceedings in the common bench were overseen by professional justices who had been chosen by the king and were expected to uphold his interests; the eyre in its nationwide ramifications was largely administered by justices from the common bench; and the exchequer, when it functioned as a court, did so under close royal supervision.  Earls and barons did sometimes act as barons of the exchequer, and in a very few cases as justices in eyre, while in 1201 John’s dispute with Archbishop Geoffrey was resolved `by the decision of four bishops and four barons, chosen on behalf of the king and the archbishop’,12 but such involvement of magnates in judicial, or quasi-judicial, business was rare.  They may have wanted a greater role in the business of the courts, at least where their own interests were at stake, and it may in fact have been expected that they should have it.  An early thirteenth-century interpolation in the Leges Edwardi Confessoris maintained that it was the king’s duty `to maintain justice by the counsel of the chief men (procerum) of his kingdom’.13 

 

By the time of John’s accession, however, decisions in the king’s courts had long ceased to be made by suitors, however defined (that was a development of Henry II’s reign), but rather were made by the king himself, by his servants and confidants, and by justices who were seldom of more than knightly rank and whose increasingly recondite expertise may well have been regarded with some suspicion by the magnates.  It was thus easy for the disappointed or disgruntled to regard the workings of the courts as no more than an extension of a system of government which was already centred upon the royal household, and controlled by the king’s chosen agents, his familiares.  The affairs of bishops, earls and barons had come to be determined by men who owed such power and wealth as they enjoyed primarily to royal favour, men who might be foreigners like Peter des Roches, or of comparatively, or actually, humble origins like William Brewer and Richard Marsh, all three of whom were prominent in John’s service in the last years of his reign.  Simon of Pattishall, who was born into a family of Northamptonshire freeholders of no great standing and became the senior justice in the Westminster courts, was also unmistakably a royal servant, who might be called upon to fulfil financial as well as judicial responsibilities for the king,14 and the same was normally true of his professional colleagues.  A small number of justices, Pattishall himself among them, may have faltered in their allegiance at the end of John’s reign, perhaps under political pressure, possibly because they had come to find the king’s methods of government objectionable.15  But such disaffection was very unusual, and remained so for centuries, and as a rule the monarch expected, and received, the full support of the judicial bench.

 

Clause 39’s demand for due process in the form of judgment of peers (which was not mentioned in the `Unknown Charter’) did not favour the magnates at the expense of other free men, who were no less entitled to it, any more than it denied a magnate recourse to alternative forms of proof – William Marshal, earl of Pembroke, arguably the king’s greatest subject by 1215, had ten years earlier offered to disprove allegations of unfaithfulness to the king by battle, though none of his enemies was brave enough to accept the challenge.16  All the same, the safeguards provided by Clause 39 were especially important for the tenants-in-chief, for whom the king’s courts were their natural recourse, whether in their dealings with lesser men, with each other, or with the king himself.  For the last, as J.C. Holt has shown, they were potentially at a perpetual disadvantage, in that the impossibility of litigating against the king using writs which the king himself provided prevented their taking advantage of new forms of action designed to remedy exactly the forms of injustice which they were most likely to suffer at the king’s hands.  And if they were dispossessed of lands by royal agents, the action of novel disseisin, designed to restore possession to a man found to have been disseised `unjustly and without judgment’, was not available to them.17 

 

The king was the source of justice, according to some currents of thought the very embodiment of law, lex animata.18  Barons and bishops could not reject his control or manipulation of his own courts, or his administration of the regale beneficium which was his own justice.  But if they believed they had been denied justice, their recourses were limited.  Evidence from early in Henry III’s reign suggests that they could apply to the king for remedy, or sue against the king’s agents who had implemented their master’s command, in the hope of inducing penitence or second thoughts on the part of the king, or they could appeal to the king’s own court, the magna curia regis, where the magnates should, in theory, gather in periodic assembly to discuss the business of the realm.19  Glanvill had earlier given expression to conventional wisdom in referring to `problems settled in council on the advice of the magnates (procerum) and with the supporting authority of the prince’.20  But of course it was for the king to convoke such assemblies, and not until Clause 14 of Magna Carta laid down who was to be summoned when grants of taxation were to be discussed was any effort made to determine who should attend them.  During John’s reign the landowner, great or small, who hoped that the king’s court would grant him redress was obliged to approach it as a tribunal in which the king could act as the judge in his own case, one which he might well find dominated by the very men responsible for the injustice of which he was complaining.  There was thus nothing backward-looking about the demand of the barons for the judgment of their peers, which for themselves, and for others too, could be seen as constituting their best hope of obtaining justice in the highest courts of the realm.

 

Justice, law and will

As already observed, there is no reason to believe that Clause 39 was intended to benefit earls, bishops and barons alone.  On the contrary, there is plentiful evidence that successive kings’ attitude towards, and exploitation of, their powers of jurisdiction was capable of affecting all those free men on whose behalf the clause was explicitly drawn up.  In an age still in the process of coming to terms with the concept of impersonal government, justice was one of the principal appurtenances of the kingly office, and in that capacity it was a vital source of revenue, and also an instrument of patronage, making it alike a means of bestowing favour and of instilling fear.  The Angevin kings used it in all these ways, all the more effectively because they were powerful, aggressive and unpredictable rulers who felt no obligation to account for their actions.  Their good will, their anger or their malevolence were sufficient in themselves to bring success to or disaster upon those who felt their effects.  They did not even have to inflict violence on those with whom they were displeased, though they were perfectly capable of doing so.  In a world of considerable administrative and judicial complexity there was much that could go wrong with the affairs of a man whom the king turned against, or to whom he denied the kind of favours which enabled his business to prosper.21  In 1214 King John fell out briefly with Bishop Hugh of Lincoln, but then around the end of October he issued letters patent notifying his officials that he had granted Hugh a full remission of his indignation, and ordering them not to allow any injury to be done to the bishop and his church, `or to their men, things, possessions, fees, rights or liberties ...’22 – the list underlines at how many points a spiritual or secular magnate could become vulnerable if the king became hostile.

 

Fundamental to any king’s relations with his subjects where governance was concerned, was the contrast between law and will – a commonplace one in medieval legal and political thought.23  The author of the Dialogue of the Exchequer, written at the very heart of Henry II’s government, pinpointed the difference when in a well-known passage he described the laws of the forest as `based on the will of princes, not on the law of the whole kingdom, so that what is done under forest law is called just according to forest law, rather than absolutely just ...’ (his analysis was arguably more theoretical than real, since in fact the law governing the forest was very tightly regulated).24  In a society whose outlook on human conduct was deeply coloured by the doctrine of original sin, it was taken for granted that the uncontrolled will inevitably gravitated towards ill-doing; hence another interpolation in the Leges Edwardi Confessoris, declaring that `right and justice should rule in the kingdom rather than evil will (voluntas prava); law is always created by right; will, indeed, and violence and force is not right’.25  It was in this light that the author of the Melrose Chronicle contemplated the misrule of King John, and was so indignant at what he saw that he broke into verse: `For the king subverted the best customs, laws and rights of the kingdom; he did not rule his subjects rightly; whatever was his pleasure he thought to be the highest good ...’.26  On similar grounds the Waverley annalist declared that for John, law had been replaced by `tyrannical will’,27 and the `Invectivum contra regem Johannem’ denounced him as `not a king but a cruel tyrant’28 – such were the effects of throwing off the constraints of custom, counsel and reason.

 

King John himself acknowledged the distinction between will and law, and equated the latter with judgment, when in 1213 he ordered the justiciar to make inquiry as to whether Geoffrey de Lucy had been disseised of the Kentish manor of Newington `by our will or by the judgment of our court’.29  His father and older brother were alleged to have acted in accordance with their will when they saw fit.  In 1200 Walter de Solers, a west country landowner, gave ten marks and a palfrey for seisin of a mill of which, he said, his father had been dispossessed voluntate H. Regis,30 and the Lincolnshire magnate Gilbert de Gant, suing five years later against Reinfred de Bruiera for lands worth £20 in that county, responded to his opponent’s presenting a number of charters and a confirmation by Henry II,  by claiming  that `if King Henry did confirm these gifts, he did his pleasure and not what he ought (libitum suum fecit et non quod debuit)’.31  Richard I acted similarly, as when he voluntarie deprived Geoffrey de Say of the Essex barony of Pleshy,32 and transferred the Norfolk manor of Scoulton from Robert to William de Mortimer, per voluntatem suam.33  Richard’s justiciar, William de Longchamp, was alleged to have acted in like manner, since he was described in 1204 as having deprived a Warwickshire landowner of six virgates in Wilmcote, `unjustly and without judgment and by will and force ...’.34 

 

Longchamp had a reputation for high-handedness, but the same can hardly be said of the king’s justices, yet in 1220 Geoffrey of Buckland and his colleagues who had recently conducted an eyre in Norfolk were found from their own rolls to have disseised Ralph de Tiville of the manor of Intwood `by will and not by judgment’,35 in apparent reference to their decision concerning the procedure to be followed.  By then process and procedure were coming to be recognised as inseparable, but it may have taken time to bring them together, just as it did to formulate the antithesis between will and law.  In the agreement which Longchamp made with Count John in 1191, the former agreed that barons, prelates and free-holders were not to be disseised at his will or that of his officers, `but they will be dealt with (tractabuntur) by the judgment of the king’s court according to the lawful customs and assizes of the kingdom, or by the king’s command’,36 as though a court’s judgment and a royal order were of equal validity in law.  Not until nearly twenty-five years had passed was their separation clearly formulated.

 

Concepts of law in King John’s reign were exposed to many cross-currents.  Exercises of the king’s will went alongside numerous expressions of concern for lawful judgment, with the king’s court being regularly offered, or sought, for its dispensation.  It is not always clear what the relevant court was.  Royal letters and directives usually referred to curia nostra, which could mean any court held by the king’s justices, but it seems likely that when a petitioner or litigant requested or was granted a hearing in the king’s court, this usually meant the court coram rege, created by John in the first year of his reign,37 where he might himself preside and which as a result had a unique status, not least as the place where acts of injustice and judicial inadequacies in other courts could be most authoritatively rectified.  It will have been in full awareness of this, since the relevant procedure was described by Glanvill in a book devoted to the day-by-day workings of the courts,38 that after John’s former servant John de Gray was made bishop of Norwich in September 1200, and set about recovering episcopal lands alienated under his predecessors, the king licensed the bishop `to place his court in our court, so that his lawsuits which he has placed there can be terminated by the judgment of our court and the custom of the kingdom’.39  Whether the bishop’s opponents saw this privilege as a gesture towards impartiality is not recorded – only one lawsuit can be shown to have resulted.40 

 

Malevolence and benevolence

The concept of the crown, as the abstract embodiment of royal government, moved by customary routines and constrained by them, had become established by the end of the twelfth century,41 but it lacked weight, and was easily set aside by the unambiguously subjective force of the king’s will: `it is just (justum est) that we should treat those who are with us better than those who are against us with our enemies’ wrote John in 1207, when ordering the investigation of an inheritance dispute in Gascony, between two brothers who had taken opposing sides in the conflict between the kings of France and England.42  Against the background of so personal a concept of justice, the king’s good will and ill will, benevolentia and malevolentia, came close to becoming agencies of government in their own right.  Royal malignity could be reinforced by anger, rancour or indignation, or even by all three at once – when Fulk Paynel came to terms with King John in 1214, and recovered the English lands he had lost for siding with Philip Augustus ten years earlier, the English king formally remitted `all the anger, rancour, indignation and malevolence which we held against him ...’.43  The list of irate synonyms harks back to a not-very-distant age when the king’s anger and his ability to inspire fear were essential weapons in his armoury of government.44  In the case of Henry II a king’s rage could find expression in what to a modern eye looks remarkably like a right-royal tantrum.45 Even so, although that king and his sons acquired new and more systematic ways of enforcing their will, they retained this older one as well, and all too often allowed it to infuse the workings of their administration, of law as of much else. 

 

The inevitable corollary of anger and malevolence was the loss of benevolence, which, indeed, people paid to recover much more often than they did for remissions of the king’s wrath.46  There was a lot more to royal good will than a kingly smile. The world of the Angevin court and government was one of violent, almost black-and-white, antitheses, in which benevolence and malevolence were polar opposites, with little neutral ground between them – anybody who lost the one stood in immediate danger of incurring the other, and of seeing his affairs go to ruin in consequence, exposed to the caprices of an administration which was always heavy-handed and often downright violent as well.  It may well have been easy to lose Henry II’s good will.  Robert Belet, a landowner in Surrey and perhaps other counties, was said in 1220 to have been deprived of all his lands because Henry was angry with him concerning a sparrow-hawk (occasione unius espervarii);47 the estates included lands in Bagshot, seemingly attached to a serjeanty relating to the custody of the king’s greyhounds (servitium vealteriae), which Belet had long ago granted to a third party, but which the sheriff of Surrey, moved per cupiditatem, took the opportunity to seize, apparently to his own profit.  Robert Belet eventually paid to recover his lands,48 but the Bagshot property was subsequently lost to its tenant, one Ralph FitzHemming, when Hubert Hopeshort, the keeper of the king’s dogs, took advantage of his access to the ear of the king (probably still Henry II) to insinuate that Ralph had refused to accommodate the royal hounds (noluit recipere canes suos); a further outburst of wrath followed (dominus rex iratus fuit cum eo), and Hubert was allowed to eject Ralph from the property and hold it himself.  Hubert’s action shows the advantages which an unscrupulous man could hope to gain from being in regular attendance on the king, even in a relatively humble position.  His exploitation of them may have given him a bad reputation – what appears to have been a recollection of the same abuse of influence emerged in another lawsuit, in 1233, which turned on the disseisin by Henry II of one `Honing’, who refused a dinner to `Hopeshort the king’s huntsman’, and as a result lost his property at Windlesham, near Woking49 – but he held on to his gains until his death, and his presumed grandson, another Hubert, still held property in Surrey in 1246.50

 

Angevin precedents: Henry II and Richard I

The same case also illustrates the devastating effects of a king’s anger.  The injustice done to Ralph FitzHemming may eventually have been at least partly rectified, but it took many years of litigation, and presumably expense.  Those who could afford it paid for remission of the king’s indignation, or the recovery of his good will, incurring debts which were doubtless calculated in proportion to both their offences and their means. When Adam de Port, lord of the Herefordshire barony of Kington, undertook to pay 1000 marks in 1180 `as fine for his own land and the inheritance of his wife, and that the king may remit his indignation against him and take his homage’,51 he was probably recovering what he had lost following allegations of treason in 1172, and then participation in the Scottish king’s invasion of northern England in 117452 – actions which might reasonably have aroused indignation.  Others paid for lesser misdeeds.  In 1176, for instance, Philip of Kinver accounted for 100 marks `for having the king’s benevolence, and for a forest offence (forisfactura), and for his land’, while Alan de St George accounted for forty marks `for having the [former] wife of Richard de Gouiz with the king’s good will’ – no doubt he had lost that good will by marrying her without licence.53  Two years later Robert Trenchart owed 300 marks `for having the king’s benevolence and that he may have peace from the pleas which Robert of Briddlesford had against him, and because he gave a woman [in marriage] without the king’s licence’,54 and in 1182 Robert FitzWalter accounted for 100s. `so that the king may remit to him his anger for the flight of Adam of Boulogne for whom he had stood pledge’.55

 

This last case shows how the king’s humbler subjects, as well as earls and barons, could lose the good will of their ruler, and even though the latter might well have never heard of them, they might still find it advisable to buy it back.  Even so, under Henry II and Richard I those affected in this way seem to have been mostly members of the social élite, commonly paying what were substantial amounts on often unspecified grounds.  Thus in 1168 Ralph de Beteville accounted for 100 marks `for having peace from the king’s malevolence’,56 and in 1175 the king’s benevolence cost Gervase Paynel, lord of Dudley, 500 marks, a sum he paid off over five years, while Hamo de Masci undertook to give 300 marks, along with ten horses and ten falcons.57  Five years later the same benefit cost Hugh de Bayeux, lord of Thoresway, Lincolnshire, 300 marks but only one falcon.58  Perhaps it was only to be expected that Henry II, a passionate huntsman, should have demanded birds and dogs in return for his good will, and that offences against the forest laws should have been among the known causes of his wrath; as it was in the case of Geoffrey Ridel, for instance, recorded in 1177 as owing 300 marks `for a forest amercement and because the king remits to him his anger’.59 

 

According to Howden, Richard I began his reign by reversing many of Henry II’s `evil works’: `For those whom the father disinherited, the son restored to their former rights; those whom the father drove out, the son recalled; those whom the father held in chains, the son released unharmed; those whom the father afflicted with torments for justice’s sake, the son restored to life for pity’s sake ...’.60  Although the list is strikingly close to that of practices forbidden by Clause 39, the chronicler did not accuse the late king of acting unjustly and without judgment, indeed, the reference to justice could imply that it was as much heavy-handed law-enforcement as the arbitrariness implicit in the cases referred to above, which made his rule oppressive, prompting his son to declare an amnesty in order to relieve strains which had built up during King Henry’s latter years.  Those strains owed much to the fact that like his youngest son after him, Henry II was inconsistent in his attitude towards and treatment of law.  He took a considerable interest in it, was several times recorded as taking part in the proceedings of his court (in around 1176, for instance, he gave a new charter to Battle Abbey in a novel format, dictated by himself, and then explained why he had done so),61 and presided over developments in legal process and administration of immense and enduring importance.62  But he was also temperamentally impulsive and undisciplined, and consequently apt to regard law as just one more instrument of policy, as a means of obtaining ends which might be those of statesmanship, but could also serve no higher purpose than the gratification of his will or the appeasing of his grudges.  The judgment on Henry II delivered by Gerald of Wales, in an extended passage of criticism, that he was `an oppressor of the nobility, weighing justice and injustice, right and wrong by his own convenience ...’,63 although overstated, was not without foundation.

 

Without being irresponsible in his treatment of legal issues, Richard I does not appear to have shared his father’s concern with law, but he was no less willing to ignore its constraints.64  In temperament the two men had much in common, and they certainly seem to have felt resentments with equal keenness.  It is probably unsurprising that Richard, who came to the throne after waging at war against Henry II, and who returned to England in 1194 to complete the suppression of a revolt by his brother John, count of Mortain, before conducting well-nigh continuous campaigns against the king of France around the borders of Normandy, should at various times have displayed his anger towards, and exacted payments from, representatives of Henry II’s government, adherents of Count John, and men who failed or betrayed him in his military undertakings.  He was no more inclined than King Henry to keep his malevolence, or the threat of it, out of his activities as king, but he directed it at different targets.  At the beginning of his reign, indeed, he was reportedly generous to servants of Henry II who had remained loyal to him and hostile to those who had betrayed him, three of whom Richard disseised `instantly, in the same moment’, as traitors to the late king.65  But ancient grudges clearly lingered.  William Turpin, Henry II’s last chamberlain, seems to have been notoriously detested by Richard, since it was not the latter but the earl of Arundel who disseised Turpin of lands in Sussex, probably in 1193/4, `because he knew that King Richard felt malevolence against William’.66  Ranulf de Glanville’s association with the former regime may well have led to losing his office of justiciar,67 while his steward Reiner had to proffer 1000 marks, most of which he paid within a year, to have the king’s benevolence and recover his lands, and two royal justices, Ralph Murdach and Ralph of Arden, fined by 200 marks and 1000 marks respectively, the former `for his fine and the love of the lord king’, the other `for his fine and for having the king’s benevolence’.68  The king’s half-brother Geoffrey, feared as a potential rival for the throne, and perhaps also resented for his loyalty to Henry II in that king’s last days, had to pay 2000 marks to have the new king’s good will and a castle in Anjou.69

 

Richard’s benevolence was much in demand in the early months of his reign, as it was again in the mid-1190s, after the suppression of Count John’s revolt.  Some of those concerned had been among John’s principal supporters, like Gerard de Canville, who had to pay 2000 marks `for having the king’s benevolence and for having his lands’,70 but members of the rank and file suffered as well – in Lancashire, which had constituted part of John’s princely appanage, fourteen men paid sums ranging from 40s. to £80 for King Richard’s good will, and the men of Devon (another county held by John) were also hit hard, with numerous fines being entered on the 1194 pipe roll `for having the peace and good will of the lord king because he was with Count John’.71  In several cases the fines specifically paid for the restoration of lands as well, and suggest that quite modest landowners had been affected.  In Devon, for instance, Richard the Welshman paid just £5 `for having the king’s peace because he was with Count John and for having his lands.’ 

 

Combining punishment and fiscal exploitation in a manner which could be felt throughout landowning society, Richard’s measures point to the strains attendant upon continental warfare.  William of Hastings owed 100 marks `for having the king’s benevolence as he did not cross at the king’s summons in the army for Normandy’, while the wealthier Richard de Umfraville had to find £100 (which he paid within a year) `that he may not incur the king’s malevolence as he did not cross the sea’.72  Perhaps it was a reflection of Richard’s martial preoccupations that he should have perceived military failings as something akin to a personal slight, but like his father, he seems also to have seen administrative shortcomings and abuses in a similar light.  After the death in 1192 or 1193 of Henry of Cornhill, a member of a powerful administrative family in Kent, his brother Ralph proffered 100 marks for being allowed to account for Henry’s debts `without anger and indignation’, and not long afterwards Ralph himself had to find 2000 marks `for having his lands of which he was disseised and the king’s benevolence.’73  It is usually impossible to say what men like the Cornhills had done to incur the king’s wrath, but in the case of William of Yarmouth, who proffered 500 marks in 1197 `for the lord king’s benevolence and for having his lands and things which were seized into the king’s hand ...’,74 it seems reasonable to link his punishment with his administration of the customs and other revenues in East Anglia.

 

King John’s justice

Like his father, and much more than his older brother, John seems to have been genuinely interested in legal issues (he may well have been personally involved in the creation in 1201 of the writ of attaint, which made it possible for faulty verdicts on possessory assizes to be reviewed and reversed),75 and clearly took his role as fount of justice seriously.  Lawsuits were often transferred to his court either on his own orders or because the justices in other courts felt they were most appropriately dealt with before the king.  Perhaps he sometimes had judicial duels postponed until they could take place in his presence because he enjoyed watching them,76 while his interest in cases involving his leading subjects must often have had a political as well as a strictly legal dimension, but many of the actions he heard appear to have turned on difficult points of law.  He did not sit alone in court, and no doubt took advice from the professionals who sat with him, but he was capable of disciplining his subordinates if he decided that they had acted wrongly or unwisely.  In 1207, for instance, he amerced James of Potterne and Simon of Patteshall, two experienced justices, of 100 marks each because they allowed the out-of-court settlement of an action between two Northumbrian magnates without consulting him.  They were later pardoned, but the king’s response underlined his control of his own court.77 

 

Although King John’s mobility doubtless sometimes created inconveniences for litigants, it must have been partly, or even mainly, because the court coram rege was widely regarded as careful and trustworthy in its dispensing of law that many litigants chose to have their lawsuits reserved for its judgment, while the common bench appears to have been generally seen in the same favourable light, at any rate when its services were available – it was closed for five years from the spring of 1209, and there were also no eyres from 1209 until the end of the reign.  Probably it was for purposes of control that King John himself in 1215 granted that the kings of Connacht `should not be disseised without the judgment of our court’,78 but access to the royal courts, in any of their manifestations, was usually a privilege which people were glad to receive, like Roald FitzAlan, constable of Richmond, to whom King John made a grant of lands in 1205, with the rider that `neither he nor his heirs are to be disseised of any of the aforesaid tenements unless by judgment of our court’,79 or willing to pay for.  Most of those who paid were people of high rank, like Petronilla, countess of Leicester, who in 1204 proffered 3000 marks for Leicester and other lands nearby, which she would hold `unless she is disseised by judgment of the king’s court’80 (in the event she was outbid by the earl of Winchester), or Peter de Brus, a Yorkshire magnate, who in the same year gave 200 marks and a palfrey for two manors, specifying that `he is not to be disseised of them unless by judgment of the king’s court’,81 or Earl Roger of Norfolk, who paid 100 marks in 1206 not to be disseised of land at Bungay, which had apparently been held by his stepmother, `unless by judgment of the king’s court’.82

 

Humbler men, too, regarded the justice dispensed by royal courts as a safeguard for their tenures which was worth purchasing.  Thus in 1199 James of Winchelsea, claiming to have been unjustly disseised of land there after he had recovered it by an assize of mort dancestor, proffered £5 to be put back in possession, `and if thereafter anyone wishes to sue against him, he will stand to the judgment of the king’s court’ (which at that date could not have been the court coram rege),83 and in 1205 Simon of Cropredy, a Northamptonshire landowner, recovered a knight’s fee in Spratton in the Curia Regis, and then gave twenty marks and a palfrey for not being disseised `unless by judgment’.84  In 1222 the sheriff had to be ordered to put Simon back in seisin of his estate at Spratton, which had been taken into the king’s hand as having been formerly held by a Norman lord,85 but there is no evidence that John’s government was responsible for the sequestration, and that king seems usually to have observed his side of these bargains, at least to the extent of offering an explanation if he failed to do so.  When in December 1206 John ordered the Irish justiciar to put the archbishop of Dublin in possession of a property then held by the Cistercians of St Mary’s, Dublin, despite his having stated, in writing, that they were not to be disseised `unless by judgment of our court’, he excused his action by explaining that `we do this by the counsel of our bishops, earls and barons ...’.86

 

There is indeed much in the record of the administration of justice during John’s reign to suggest that many, if not most, of those who litigated in the royal courts could expect that due process would be observed and that their claims would be equitably treated there.  That the king himself was well aware of his subjects’ expectations where the administration of justice was concerned is suggested by a letter sent to his Irish subjects in 1207, declaring that `we do not wish that you should be treated hereafter except according to law and judgment, nor that anyone should take anything from you at will (per voluntatem), or be able to disseise you of your free tenements unjustly or without judgment, nor that you should be impleaded for your free tenements by any writ except our own or that of our justiciar ...’.87  Although John was writing in the immediate context of efforts to bring the major Irish liberties under closer control, his letter nonetheless provides an impeccable statement of the basic principles of acceptable legal practice, and of his own willingness to uphold them. 

 

But there was another side to this seemingly valuable and well-made coin, one which, as with any silver penny, arose from the fact that the whole piece was made by the same moneyer.  There was nothing necessarily impersonal about the way the Angevin kings directed the functioning of the courts which provided justice in their names.  All were masterful men, and the ways in which they showed their mastery included the active supervision and manipulation of the processes of the law.  Law could be, and often was, treated by them as one of the fundamental appurtenances of the kingly office, but it could also be managed as a commodity of which they possessed the monopoly, to be exploited as they thought fit.  Their regulation of law, of the ways in which it could be sold, given away for nothing, or withheld altogether, as the royal pleasure or convenience decided, was brought under control by Clause 40 of Magna Carta.  Clause 39 was concerned to redress successive kings’ use of law as an executive implement, to inflict punishment, to impose discipline, or simply to raise money, as their policy required or their needs dictated.

 

Disseisin: methods and impact

When John came to the throne in 1199, he had ample precedents in the reigns of his two predecessors for a style of government in which established protocols and legal precedents competed for dominance with the will of the monarch.  It is difficult to be sure that John’s dealings with his subjects were in fact more arbitrary than those of Henry II and Richard I – they may simply be much better recorded, thanks to the existence of chancery records, in which case Angevin kingship was probably heading for trouble whoever was on the throne.  But it seems likely that John took further the methods of his predecessors, and intensified their effect by the selective and unpredictable ways in which he employed them, compounded, perhaps, by his inability to use to good effect the money he extracted by what came increasingly to be regarded as irregular means.  Henry II and Richard I usually won their wars, so that their subjects could at least see that what was extracted from them had been well spent, but John almost invariably lost his most important battles and campaigns, the ones he waged in France.  His humbling of the Scots, Welsh and Irish probably looked like no more than an extension of the treatment he handed out to his subjects in England, with whom, indeed, they allied themselves as soon as the opportunity arose, and failed to give him the prestige enjoyed by victorious kings.  It is not clear that the visible splendour with which he liked to surround himself was an adequate substitute for this.

 

Of the methods of oppression forbidden by Clause 39, the most important, because it was by far the most often used against members of landowning society, was disseisin, the forcible seizure of their estates, which became unlawful when it was carried out `unjustly and without judgment’.  At the 1194 Wiltshire eyre Robert de Hugeford lost his action against two men for disseising him of land in Wilton when the jury found `that they did not disseise him without judgment, as they disseised him by judgment of the court of the abbess [of Wilton]’.88  It was bitterly resented, not least because it carried with it the possibility of social as well as financial ruin.  The possession of land, with the command of men as well as of acres which accompanied it, gave a standing in medieval society which money alone could never transmit.  John himself had been dubbed `Lackland’ in his youth, arguably as much in derision as in reference to his unendowed status.  But the fiscal consequences of dispossession were severe as well, entailing considerably far more than a lock on a gate or a warder at the door – anyone disseised on the king’s orders faced the loss of all his or her movable assets as well, and in extreme circumstances, as in the civil war at the end of John’s reign, the complete devastation of the property.  Thus in 1215 the houses on the land of Henry of Braybrooke were to be completely demolished, while a year later order was given that all the lands of William of Hastings were to be wasted, his demesnes destroyed and his castle pulled down.89  The impact of a disseisin in peacetime is vividly shown by a private lawsuit of 1205.  When Richard de Muntfichet (ten years later one of the twenty-five barons charged with enforcing Magna Carta) was found to have disseised Katherine, widow of John de Muntfichet, of land at Burleigh, Hertfordshire, her damages were assessed at thirty-five marks (£23. 6s. 8d.), `in the uprooting of garden, wood and houses, and in the sale of horses, oxen and other animals, and the removal of coffers and clothes, and the delaying of her sowing season.’90 

 

The king and his agents are unlikely to have been any gentler.  It is true that in a number of cases the king’s officers were told to restore what they had taken when they occupied an estate.  When the abbot of Westminster recovered seisin of the manor of Pershore in 1205, for instance, having been deprived of it because the king’s palfreys were badly looked after there (most likely when John stayed at Pershore on 15 August 1204), John FitzHugh was commanded to give back anything that had been taken, though an exception was made of `the needs (necessaria) of the palfreys and their keepers’.91  But otherwise a confiscated estate was clearly regarded as potentially an asset to be comprehensively stripped.  When in 1207 Geoffrey de Jorz fined by 220 marks to recover his lands in Nottinghamshire, and to have remission of the king’s rancour, probably incurred by inadequacies in his keeping of Clipstone Park, he was allowed to set against his debt a total of £20. 19s. 8d., which Brian de Lisle had raised by selling his chattels.92  Another unsatisfactory forester, Richard of Laxton, lost chattels valued at £30. 15s., likewise sold by Lisle who then paid the money into the king’s chamber.93

 

The strong-arm methods which the king’s men might employ can be seen in the case of Geoffrey Gibwin, who in 1211 was summoned at the king’s suit to show by what warrant he had entry into two thirds of Thornhaugh, a few miles south east of Stamford.94  Geoffrey’s defence was that he had been given entry by the abbot of Peterborough (he was the latter’s steward), having bought it along with the wardship of the heir of Geoffrey de St Medard, one of the abbey’s principal tenants, and that he had himself been disseised of the property by Sir Adam de St Medard, no doubt a kinsman of the heir.  He claimed to have held the wardship for three years until the abbey fell vacant on the death of Abbot Acharius in March 1210, whereupon `there came bailiffs of the king who had custody of the abbey and harassed him about it (vexabant eum inde), so that he paid £10 to Robert of Braybrooke, the abbey’s bailiff, to have peace ...’.  And he offered two palfreys to be allowed his seisin as he had paid the abbot for it.  He does not appear to have recovered it, however.  Three years later Geoffrey was once more in court to face the king’s suit, this time over Thornhaugh church, on the grounds that he was preventing the king, who also claimed the wardship, from presenting its parson.  Again Geoffrey defended his right, and told how when two wardships fell in, around 1200, the king had claimed them, but had granted them to Acharius for 200 marks, after which the abbot sold that of the St Medard fee to Geoffrey for £100.  When Acharius died, the abbey, its lands and its appurtenant fees had been seized by the crown, Thornhaugh with the rest.  Shortly afterwards Geoffrey was summoned to take part in John’s expedition to Ireland; not wishing to go, he gave fifteen marks to be spared making the journey, and also for having an inquest as to whether the St Medard wardship belonged to the abbot or the king, but although he paid the money he could never have the inquest.  Nor did he obtain the advowson.  The case ended with the court deciding that because Geoffrey did not have the land to which the advowson pertained, the bishop of Lincoln should be instructed to admit the king’s nominee, while Geoffrey was forbidden to hinder the presentation.

 

Disseisin: victims great and small

The recorded details of this case are known almost entirely from the pleadings of Geoffrey Gibwin, but since Abbot Acharius’s payment, as well as his proffer, for the disputed wardship was entered on the 1200 pipe roll,95 it is hard to avoid the conclusion that Geoffrey was the victim of a combination of chicanery and force.  It was a potent one, made more so by the resources of manpower and authority at the king’s disposal, and it could be directed against anybody.  The men targeted, with or without recorded explanation, included some of the greatest men of the realm.  In December 1204 order was given for the seizure of the lands of Ranulf, earl of Chester, and Roger de Montbegon, a leading northern baron, along with everything on them – the sheriffs of five counties had to be directed to implement the king’s commands.96  In the following year another northern magnate, Robert de Ros, was deprived of his lands,97 while in 1207 the East Anglian magnate Roger de Cressy had to pay 1200 marks and twelve palfreys (another sixty marks) for seisin of his estates.98  No reason was given for the king’s action against Ros, but John could reasonably have felt the need to discipline Ranulf of Chester and Roger de Montbegon, who were prominent in resistance to his government in the north of England, while Cressy paid the price for marrying an heiress without royal permission, and perhaps understandably needed to recover the king’s benevolence as well as his own and his wife’s lands.  Duncan de Lascelles, lord of a quarter of the lordship of Eton, Buckinghamshire, may have suffered on similar grounds – he was disseised for failing to take part in the 1209 Scottish campaign (as a substantial landowner in Scotland as well as England he may well have preferred to join the host which William the Lion summoned to resist the threatened English invasion).99 

 

But other men of consequence fell foul of the king and lost their lands on less substantive grounds, or even on no apparent grounds at all.  When Hubert Walter died in 1205, all his lands were at once taken into the king’s hands, including those which the archbishop held as wardships or as pledges for debts.  Two manors belonging to the Devon magnate Henry de la Pomeray which had come into Hubert’s hands in this way were now seized by the king, and Henry had to pay thirty marks to recover them, although there is no reason to suppose that he had committed any offence.100  In 1209 the abbot of Fécamp in Normandy proffered 100 marks, a palfrey and two barrels of wine `for having his lands and things and possessions of which he was disseised because of the malevolence which the king had towards the barons of the Cinque Ports ...’.101  The abbot had property in Romney, but although there is no reason to suppose that he had been involved in whatever action, or inaction, had aroused the king’s anger, his territorial connection with the Cinque Ports was apparently enough to justify his disseisin.  Other men suffered for no ascertainable reason.  Hugh Malebisse, for instance, an important Yorkshire landowner, who was disseised in 1205 on no recorded grounds except that the king was angry with him, and had to give 200 marks and two palfreys to recover his lands, along with the king’s benevolence which he had mysteriously lost,102 or Mr Michael Belet, the royal butler and a clerk in the royal household, who proffered 500 marks in 1211 `for having the king’s benevolence and his rents and lands of which he was disseised because of the malevolence which the king had towards him’.  Again, no explanation was given for John’s wrath, though it has been surmised that it arose from some incident during the long-running crisis triggered off by the election of Stephen Langton as archbishop of Canterbury in 1207.103  All these men could perhaps have expected, or at least hoped, that the king’s actions against them would have been followed a hearing at Westminster or, more likely, in the court coram rege, but there is no evidence that they did so. 

 

In dealing thus with magnates and courtiers, John was arguably doing no more than his father and older brother had done.  In 1164 Henry II had set out to ruin Thomas Becket by judicial means, but the attempt had ended in confusion, and perhaps for that reason Henry and his sons usually preferred thereafter to take more direct action against great men who offended or resisted them.  What sets John’s kingship apart from that of his two predecessors is the number of lesser men who were similarly targeted, men who could not usually expect a hearing in the Curia Regis, unless they paid for it, but who would still have claimed the right to one in a properly constituted court, with a judgment delivered by men from their own vicinity and of a standing akin to their own.  The admittedly terse records suggest that the victims of the king’s will or anger were all too often denied this, and that almost any offence, whether real or not, could result in dispossession, carried out on orders whose arbitrariness was if anything underlined by the frequency with which they were said either to have originated in the king’s malevolence, or to have been reversed in order to recover his good will, and in either case to have been accompanied by payment.  It needs to be borne in mind, however, that although disseisin was very often a means to a financial end, there must have been cases in which it was an end in itself, when it served as a punishment, pure and simple, and went unrecorded for that reason.  The Angevin kings undoubtedly ejected more people from their lands than the surviving records show.

 

Some of those affected were royal servants, albeit of a humbler kind than men like Richard of Laxton and Geoffrey de Jorz mentioned above.  Richard FitzWilliam, disseised `because of our park of Havering’, was probably one such,104 Roger of Poitou, whose land was taken into the king’s hand `for failure in the service of keeping goshawks’, must have been another.105   Nor was it only magnates who suffered if they married without licence – the twenty marks proffered by William the Welshman, `for having the king’s benevolence because he married Emma de Waie without the king’s consent, and for having peace because he fled, and for having seisin of his own land’, by its relative insignificance shows that he was a man of limited means.106  Some of the king’s bitterest disputes with his barons arose from his demands for military service, but lesser men, too, could suffer from these, like Matthew of Clevedon, who paid twenty-five marks `for having his land of which he was disseised because he did not cross to Ireland with the king, a fine of ten marks being `insufficient for having peace over his passage’.  Matthew might not have been rich, but since John reckoned he could afford to pay more he insisted that he do so – the debt was incurred in 1210 and paid off a year later.107 

 

Debtors and other targets

Indebtedness could be the prelude to disseisin, in a number of different ways.  From the very beginning of his reign John might insist that crown debtors pledge all their lands for the payment of what they owed,108 while in 1201 the statute of Windsor ordered that the lands for which a baron had made fine with the crown were if necessary to be taken into the king’s hand until the agreed debt could be paid.109  The collection of the king’s debts could have wide-ranging ramifications.  Gilbert of Norfolk, a former keeper of ports, died in around 1205 owing the king just over £50, the remains of a debt for being restored to possession of land in Creake and Burnham, `of which he was disseised unjustly and without judgment, as he says, and that he may not be disseised of it without judgment ...’.110  Another part of Gilbert’s estate came into the hands of William Aguillun, who was then himself disseised of it as the king pursued Gilbert’s debts, but had to be put back in it so that he could take part in John’s expedition to Poitou in 1214.111  Perhaps it was that same debt which accounts for the deal which Gilbert’s widow Emma de Belfou was forced to make with the king after her husband’s death; not only did she have to pay £400 for her inheritance, but she was also obliged to agree that if she died without an heir of her body, her manor of Lowdham in Nottinghamshire `will remain to us and our heirs for ever after her decease, quit of her other heirs ...’.  Emma was allowed to pay the money at the rate of 100 marks per annum, and duly cleared her debt in 1211.112 

 

Other debtors were less provident, or fortunate, and discovered that failing to keep the prescribed terms for the payment of a fine could also lead to disseisin, as Henry son of Hugh de Neville found in 1201; he had proffered £100 for his father’s lands in 1200, and paid £76. 16s. 8d. by the end of the year, but failed to complete his payments within the twelve months following, with the result that John took the lands back, and Henry had to pay an extra £10 and a palfrey to recover them, while still having to find the £23. 3s. 4d. due from his original debt.113  Richard Noel, a small freeholder in Kent, fell foul of King John, whom it pleased to have him put in prison until he fined by fifty marks to be released, when the king `caused him to have such seisin of all his land as he had on the day he was arrested ...’.  But although Richard managed to find £12. 3s. 4d., he could not pay the rest, whereupon the sheriff of Kent (Reginald of Cornhill, a devoted royal servant) disseised him again, probably in around 1206, and he only recovered his property (conditionally) in 1219.114 

 

Debts to Jews were a source of profit which John exploited to the utmost.  When in 1207 he resolved to collect what had been owed to the long-dead Aaron of Lincoln, he chose as his primary target the Lincolnshire landowner Jollan de Amundeville, who owed £276, and ordered that all his lands should be taken into the king’s hand, `whoever holds them’, and added that the lands of everyone else who had owed money to Aaron should be treated in the same way.115  Another threat to property arose from the practice whereby agreements made in the Curia Regis concerning the payment of debts gave the king the right to take a proportion of the sum at issue.  Two actions brought by Roger the Welshman in 1205 show what the consequences might be.  Both Michael Capra and Roger de Cramaville had settled with Roger to pay what he owed at a specified term, and each failed to do so, whereupon the lands which Capra and Cramaville had offered as security for payment were seized, not by Roger the Welshman but by the king, so that he could have the thirds which were his agreed share.116

 

The king’s particular concern for, and close control of, the royal forests perhaps make it unsurprising that disseisin could follow conviction for poaching – Ralph FitzRalph, who took a stag in an unidentified Leicestershire forest, was thereupon disseised on the king’s order, and had to pay forty marks to recover his lands.117  Thomas of Haverhill similarly suffered the loss of his lands (and chattels) after three hare-skins and a greyhound were found in his house, seemingly in Middlesex, and he, too, had to give forty marks to have them back.118  Other offenders against the peace or against the processes of justice were dealt with in a similar fashion, men like Robert the butler, whose lands and chattels were seized after allegedly castrating his wife’s lover,119 or Roger of Hoo, an East Anglian landowner, who proffered ten marks and a hunting horse `for having the king’s grace and for having his land of which he was disseised because he beat the king’s servants’,120 or Thomas Crok, who began an appeal against two men for the death of his father but came to an agreement with them without the king’s licence, subsequently fining by twenty marks to recover the property which had meanwhile been taken into the king’s hand.121 

 

Although the actions which prompted such responses were by no means trivial, they are recorded in terms which suggest that disseisin had become a well-nigh automatic reaction on the part of the king and his agents to any misdeed or suspicious act which came to their attention.  In fact in a number of cases no reason for a disseisin was given, or at any rate recorded, though it is sometimes possible to hazard a guess.  The fact that one Robert the scullion (Scutellarius) was said in 1213 to have been seised on the king’s order of Northamptonshire lands of which Richard Gubiun and Roger the forester had been dispossessed `without judgment’, raises the possibility that a court official had taken advantage of his access to the royal ear in order to secure other men’s estates.122  But in a case like that of William Beaupere, who with his wife and sister was ejected from land which William’s father had held in Feckenham, Worcestershire, it can only be said that the king ordered that this should be done.  The fact that in 1204 ten marks sufficed to have them reinstated suggests that the property was a modest-sized one, but why they were deprived of it was not explained.123  The same is true of Ralph of More, who held a military serjeanty in Shropshire, was disseised around 1214 per preceptum Regis, and paid £10 to be freed from prison and to recover his land – nothing was said to explain why Ralph deserved expropriation.124 

 

The king’s order might be reinforced by his anger, a force which must have been all the more alarming because it might be unleashed without warning and for no given reason.  Hugh the fat (Grassus) seems to have been a minor royal official, reinstated in 1205 in property in Hampshire `of which he was disseised because we were angry with him ...’125 – King John’s rage was clearly regarded as justification enough for such drastic action, just as his malevolence was for the disseising around 1210 of Reginald of Gossington, the holder of a Gloucestershire forest serjeanty (he paid fifty marks to recover his property),126 and for the confiscation of the lands and rents of the abbot of Basingwerk a year later –  the abbot gave £100 `for having the king’s benevolence and for having his lands and rents, taken into the king’s hand because of the malevolence which the king had against him ...’.127  It is likely, indeed, that there were more cases in which men and women who paid to recover the king’s good will had also suffered the loss of their lands than the records reveal.  In 1210 the Devon landowner William de Brionne paid 100 marks and a warhorse `for having the king’s benevolence’.  It is only an accompanying note of the sheriff’s accounting for twelve marks, the issues of William’s chattels while his land was in the king’s hand, which reveals that he had temporarily lost his estates as well, and was presumably paying to recover lands and benevolence together.128

 

As the head of a Cistercian house, the abbot of Basingwerk was probably targeted because his house belonged to an order which John was then actively oppressing.  Disseisin was, indeed, a weapon which could be turned against whole orders of society, especially the clergy.  In 1205, following the loss of Normandy, the prior of Andover, a modest-sized daughter-house of St Florent of Saumur, gave a palfrey `for having seisin of his lands and things of which he was disseised by reason of the king’s general order for disseising men of religion from overseas ...’,129 and in 1208, in anticipation of the interdict which he knew was about to be imposed, John issued a hardly less general order commanding his agents in the dioceses of Lincoln and Ely to take into his hand all the lands and other possessions of abbots, priors, monks and secular clergy who refused to celebrate mass (the same order was probably sent to all the English dioceses).130 

 

The impact of such measures upon those immediately affected was bound to be severe, as of course it was intended to be, but they could also have repercussions for their tenants and associates.  When Roger de Cressy was disseised in 1207 for marrying an heiress without licence, as described above, a much lesser figure, William FitzRoscelin, was allegedly also involved in the offence, and was likewise disseised, and although he asserted his innocence he still had to pay £40 and a good hawk to have his lands back.131 Probably around 1210 William of Windsor, lord of half the barony of Eton, Buckinghamshire, was disseised of his lands for a debt to Jews which had come into the king’s hands.132  They were entrusted to John FitzHugh, under whom they were clearly managed so as to secure a good return for the king, with serjeants being appointed to keep watch over them and their yields being accounted for at the exchequer.  This may in itself have been a disagreeable experience for William’s tenants, but there was worse to come, when in 1211 a proffer of £100 enabled their lord to recover his estates, on condition that he pay off his debt at the rate of 100 marks per annum.  For William then seems to have applied himself to ejecting the current tenants, perhaps so that he could exploit their holdings himself, perhaps in order to replace his tenants with others prepared to pay higher rents, and in either case to enable him to pay his debt to the king.  The initial shock of disseisin was felt by the baron or bishop who lost his lands, but there could be a severe aftershock for his dependants.  The latter were not necessarily men of minor substance or consequence, making John’s freedom with disseisin as an instrument of punishment or discipline even more dangerous for himself.

 

Summary justice and government-directed violence

The government of Henry II and his sons reflected their personalities, in being restless, dynamic and often brutal.  In this it matched their preferred methods of finance, which as their landed base diminished relied instead on their ability to make the most of incidental, and therefore unforeseeable, sources of revenue as and when they became available.  They were always on the watch for opportunities to be exploited.  Their rule was prestigious and attracted talent; ambitious men wanted to serve the kings of England, and those who did so could not afford to be more scrupulous in their methods than their masters were.  Clause 39 lists those methods – arrest, imprisonment, disseisin, outlawry, exile, ruin (perhaps a euphemism for physical destruction), along with direct action by the king himself, vividly summed up in the expressions `going against’ and `sending against’. The former, at least, was precisely what John had attempted against uncooperative northern barons as recently as the autumn of 1213, when he had led forces north to Northampton and then Nottingham, pursued by Archbishop Langton, who insisted, in exact anticipation of Clause 39, that he should not wage war against anyone without a judgment of his court.133   Disseisin was the most often recorded, and no doubt the commonest, of the ways in which successive kings disciplined and punished recalcitrant or unsatisfactory subjects and servants, but all the others were employed, even killing, and not only at the expense of the great men of the realm.  Clause 39 owed its potency to the fact that the activities of the king and his servants threatened the lives and livelihoods of all free men.

 

It should be acknowledged that in an age before human rights legislation, some of the actions which Clause 39 forbade might well have looked perfectly reasonable to twelfth-century eyes.  Both Henry II, after the rebellion of 1173-4, and Richard I, after his brother John’s revolt in 1194, had disseised many of their enemies, and there is no evidence that they had waited for the dispossessed to be formally condemned before they took action against them.  The wholesale dispossession of those Normans who threw in their lot with the French crown after the loss of the duchy in 1204, which seems to have been effected with an equal lack of ceremony, on the king’s `general order’,134 cannot have come as a surprise to the men affected, or indeed to anyone else – it represented the expected, and indeed proper, penalty for those who associated with the king’s enemies. 

 

Flagrant resistance to the king’s authority might plausibly be seen as meriting condign and summary punishment – opposition to the thirteenth of 1207, for instance, which was proclaimed as having been granted with the consent of the magnates, and which resulted in King John’s own half-brother, Archbishop Geoffrey of York, being driven into exile,135 and also in a number of disseisins.  The abbot of Furness was disseised of two townships for failing to pay,136 and Roald FitzAlan, the constable of Richmond, had to give 200 marks and four palfreys to recover his castle, confiscated because he would not swear to his own assessment,137 while the abbot of Selby, who also refused to pay, had to proffer forty marks and two palfreys to avert the king’s malevolence, expressed in an order that he should be amerced of as much as possible (ad plus quod posset).138  When the Yorkshire baron William Painel was disseised in 1198 `because he was not found in his constableship in Normandy’, and had to pay £80 to recover his lands, his punishment was arguably proportionate to his offence, given the king’s need for his services at a critical point in his campaign to recover ground lost to the king of France.139  Men who without licence married heiresses in the king’s gift, or widows who married without royal consent, could perhaps have been seen in a similarly censorious light.

 

The growth of resistance to summary justice – as the king would have seen it – is reflected in the payments made during John’s reign not to be disseised without judgment (discussed above).  But Clause 39 may also reflect the direct experience of a number of the king’s adversaries, lay and clerical.  John’s quarrel with Rome led to what the king himself referred to as an `interdict, which is commonly called outlawry’, being issued on his orders against members of the clergy.140  Perhaps this interdict was styled thus in mocking reference to the one imposed by Rome, but there does not seem to have been anything diverting about its effects, since the king found it necessary to make a public revocation of it in June 1213, and to promise not to promulgate any such measure in future.  He also revoked the outlawry (referred to as such) which any laymen had incurred as a result of his dispute with the English church,141 possibly, since to consort with an outlaw was to risk suffering his fate, by associating with clerics who had fallen under the royal ban. 

 

Around the beginning of 1213 two of John’s leading enemies, Eustace de Vescy and Robert FitzWalter, were formally outlawed for their role in the conspiracy to kill the king during his planned 1212 campaign in Wales.  The offence was one which contemporaries would certainly have regarded as calling for the severest punishment, and had the conspirators been killed before they could flee it is unlikely that many would have demurred at their fate.  John chose to act against them through the courts, though how far his proceedings were fully compatible with existing law is uncertain.  Details of the sessions of Essex county court at which FitzWalter was outlawed show that proceedings were begun by royal command,142 and no later than 1234 an outlawry carried out on the king’s direct order, without any initiatory indictment or appeal of felony, would certainly have been regarded as legally insufficient.143  The same would probably have been true of the outlawry of William de Briouze, on much the same grounds.  Provoked to violence by the king’s acting against him under the law of the exchequer, in 1212 Briouze was outlawed in Herefordshire county court, this time in proceedings apparently begun by the sheriff.144  It is perfectly possible that he had been the object of a communal accusation, as a malefactor who had allied himself with the king’s enemies, but John’s record of proceedings does not say so, and in any case the fact that John stopped and restarted proceedings, as his negotiations with Briouze made convenient, would probably also have been enough in an only slightly later age to have them quashed altogether.  It may be that the outlawries of FitzWalter and Briouze were procedurally valid in John’s reign, but this cannot be taken for granted, and the inclusion of outlawry in Clause 39, as a procedure which needed bringing under control, certainly suggests that it had been abused, perhaps in these very cases.

 

The fact that nine of FitzWalter’s followers were also outlawed, without it being made clear whether they were charged with direct involvement in their lord’s treason, or only with having acted as his accessories, would probably also have justified annulling the proceedings against them – action against accessories should not have proceeded to judgment until or unless the principal offender had been convicted or outlawed.  The justiciar, three earls, and three of the king’s leading henchmen were present in Essex county court when the outlawries were proclaimed; this may have been intended to advertise the lawfulness of what was being done, but it could also have served to override potential misgivings or even opposition.  It is not known where Vescy was outlawed, though Northumberland County Court seems the likeliest venue; at least one of his followers appears to have shared his fate, though perhaps not with due formality – Reginald de Cappetoft was disseised of land in Leppington, in the East Riding of Yorkshire, `because of the malevolence which we had against Eustace de Vescy’.145

 

Briouze and FitzWalter fled to France, while Vescy took refuge at the Scottish court.  The bishops and other clergy who refused to serve an excommunicate king similarly left the country, and all could plausibly have been regarded as exiled in the sense in which Clause 39 used the term.  Arrest and imprisonment were similarly potent weapons in the royal armoury.  Some of those affected were essentially political prisoners, like Queen Eleanor, kept in confinement by Henry II between 1173 and his death in 1189, or Arthur of Brittany, imprisoned and then murdered by King John, and his sister Eleanor, who remained a prisoner between 1202 and her death in 1241.   Others were victims of executive action – the ordinance authorising the thirteenth of 1207 laid down that the penalty for anybody convicted of concealing or undervaluing his chattels was to be forfeiture of the latter, `and his body is to be placed in our prison until it is delivered by us’.146  The king’s pleasure, or displeasure, cast others into gaol, for instance Thomas of Moulton, imprisoned in Rochester Castle in 1208 for failing to pay his debts to the king,147 or William de Kame and Roger de Mora, who paid 100 marks and fifteen marks respectively in 1214 for release from prison and recovery of their lands.148  Moulton was probably sentenced in the court of the exchequer, but there is no evidence for legal process in the other cases, any more than there is for the treatment of English Jews, arrested en masse in 1210 and imprisoned in Bristol Castle.  The latter’s captivity was the prelude to violent financial oppression; for the thieves and robbers who were seized and locked up following a peace-keeping edict issued by Hubert Walter in 1195, not to be freed unless by the king or the justiciar, it may well have been the prelude to execution.149

 

In fact chroniclers at both Canterbury and Furness recorded that Jews, too, perished during this campaign of extortion,150 which may also have been what the author of the so-called `Invectivum contra regem Johannem’, written only a few years after that king’s death, had in mind when he alleged that John `cruelly poured out the blood of many innocent people and deprived many of bodily light (luce corporali)’.151  Angevin government was probably not in fact unduly bloodthirsty, but there are still cases which show that those who offended it might risk their lives by doing so.  The case of Arthur, as a rival for the throne, was perhaps an exceptional one, but the fates of Thomas Becket, of William FitzOsbert, hanged in 1196 on the orders of Hubert Walter following riots in London, and later of Matilda and William de Briouze, starved to death in prison in 1210, of Geoffrey of Norwich, a justice of the Jews who died of ill-usage, perhaps in Nottingham Castle, after falling under John’s suspicion in around 1212,152 and of Peter of Wakefield and his son, hanged at Wareham on the king’s orders in 1213 after Peter’s prophecy that the king would shortly lose his crown had gone unfulfilled, show clearly enough what the consequences of resistance could be. 

 

How readily John’s government might have recourse to violent methods, or at least to the threat of violence, is shown by the king’s response to the earls who refused to sail to France in 1201 unless John conceded them their rights – he immediately demanded their castles153 – and still more by his reaction to England’s being placed under an interdict in 1208.  Initially he encouraged, or at least countenanced, assaults on the clergy (the Barnwell Chronicle referred to clerks suffering through swords and gibbets),154 and then he forbade such attacks, with the hardly less intemperate declaration that if he could lay hands on anyone responsible, `we will have him hanged on the nearest oak’.155  And when civil war broke out in 1215, not only did he reportedly have to be dissuaded from hanging the garrison of Rochester Castle, but he was also able to capture Belvoir Castle by threatening to have its lord (and his prisoner), William d’Aubigné, starved to death if his men did not surrender.156  The menace of physical destruction was sufficiently real to justify its inclusion, if somewhat obliquely, among the practices which Clause 39 forbade except when the legal proprieties were observed.

 

Threats

The recorded tone of John’s government, as well as its actions, was all too often violent and aggressive. Documents issued by the royal chancery, like the regulations of 1199 setting out the fees payable for documents passing under the king’s seal,157 and the decree of January 1215 granting freedom of election to all churches, might invoke the curse of God and the king upon any who infringed them.158  The men summoned to the defence of the realm in 1205 were told that they would be disinherited if they failed to serve,159 while a similar order in 1213 was backed by the threat of social degradation.160  Perhaps in these instances the importance of the business justified harsh measures, but it is also true that seemingly trivial offences could incur less than trivial penalties.  In 1201 the men of Gloucester had to pay forty marks to recover the king’s good will, lost because they did not provide him with the lampreys he had ordered for his visit in late October, while in the same year the failure of the citizens of York to wait upon John when he arrived there, compounded by their refusal to accommodate his crossbowmen, led first to a demand for hostages and then to a £100 fine, again to regain the king’s benevolence.161  No doubt it was the threat of this kind of action which lay behind John’s order to Reginald of Cornhill in 1205 to buy wine for him and send it to Nottingham, `and know that if the wines are not good we will betake ourselves against you for it ...’.162

 

A still more striking example of the linguistic intemperance of which John’s government was capable is provided by the instructions of 1212 which the king sent to Peter des Roches in 1212 for dealing with Philip of Strelley, described as having married a widow without royal licence, that he should `take such amends from Philip that he should stand as an example whereby others would dread to attempt such things against the lord king.’163  In fact there is no evidence that Philip, a royal falconer, suffered in any way as a result of the king’s blood-curdling order, since he was still in the king’s service in 1214 and was apparently regarded as loyal two years later.164  He had already paid twice, in 1200 and 1205, for separate licences to marry a widow in the king’s gift,165 and it is possible that his alleged offence was related in some way to these earlier transactions, though it is no less likely that the allegations against him had simply turned out to be false.  What is clear is that the king’s fury, as he expressed it in 1212, was out of all proportion to the misdeed, whether genuine or not, which provoked it – in 1219 the dower of Philip’s wife was valued at one third of just £5.166 

 

John’s government seems to have expected, or even wanted, to arouse fear.  In May 1213 the sheriff of Somerset and Dorset was ordered to buy oats for the forces prepared to resist French invasion, `as you love us and yourself and your body’,167 and two months later John Wake, a west country landowner, proffered 500 marks to the king `for having his benevolence, and for his body, and for having his land ...’.168  Fear for his body seems to have determined the fate of Nicholas de Kivilly, a merchant who made an agreement with the king in 1205 whereby in return for 240 marks and a barrel of Auxerre wine he would have the management of the Winchester exchange for a year.169  It was the year of the assize of money, entailing a wholesale recoinage, and Nicholas must have hoped for a substantial profit, to the extent that he was prepared to give an extra £100 `so that the fine which he made for having the Winchester exchange may be observed’.170  But something went wrong, so much so that, in the words of his widow recorded in 1224, `for the fear which he had of King John and of William of Wrotham’ (one of the two officials overseeing the enforcement of the assize) Nicholas entered religion,171 and eventually became warden of the recently founded God’s House in Portsmouth.172  It should be said, however, that John’s government hardly needed to utter threats to attain its ends, though it was plainly more than willing to do so.  The measured tone of the incomplete order sent in the autumn of 1212 to Robert of Burgate, one of the custodians of the archbishopric of Canterbury, ordering actions against an unnamed party which were to include the seizure of his children as well as of his land and chattels,173 is just as effective in conveying the ruthlessness of which the king and his agents were capable.  

 

Confusion

Perhaps it is not surprising that a government which so often had recourse to violent methods, and spoke in angry and aggressive terms, should sometimes have become confused about its own intentions.  It was noted above how in 1213 John himself found it necessary, or advisable, to order the justiciar to investigate whether Geoffrey de Lucy had been disseised of the Kentish manor of Newington `by our will or by judgment of our court’, suggesting that he had overlooked, or forgotten, his own charter of 1204 granting the manor to Geoffrey,174 and in June 1215, admittedly in politically uncertain circumstances, he was obliged to order the sheriff of Devon to restore seisin of his lands to Peter FitzOger, given away by the king `because we thought (credidimus) that Peter was against us in the war begun between us and our barons’175 – he had treated Peter as an enemy, apparently on no grounds save his own suspicions, and discovered the truth about him afterwards, or at least what he believed to be the truth – by April 1216, perhaps angered by the king’s earlier actions, Peter had indeed gone into rebellion, and order was given for the second time that his lands should be seized and granted away, albeit to a different beneficiary.176

 

Given such responses on the part of the king, it is not surprising that his agents could be no less high-handed.  In 1201 John gave the Somerset manor of Milborne to Simon FitzRobert, then archdeacon of Wells and later bishop of Chichester.  Simon subsequently granted part of it to Henry of Sandwich, but the sheriff of Somerset seems to have been unaware of any of these transactions, for when an inquest returned that Henry’s holding pertained to Milborne, he treated it as still being a royal estate and ejected its new holder, an action which in due course was countermanded by the king.177  In what may have been a similar case, in 1205 John found it necessary to instruct the sheriff of Hampshire that if Theodoric the German, `our servant’, had had seisin of land at Ringwood `on our order’, but had been dispossessed following the death of the earl of Leicester, who had died without issue in the previous year, he was to be put back in occupation without delay, and whatever had been taken from the property restored.178  In this instance the king seems to have been uncertain as to what Theodoric’s rights in the land in question were, or how he had come by them, which helps to explain why John expected, or required, his agents to account for actions like these.  In 1207 he ordered Falkes de Bréauté to restore his wife’s inheritance to Roger Corbet, apparently a Gloucestershire landowner, but concluded by commending Falkes’s prudence `in that you disseised him and notified us of it’ (De hoc autem quod eum dissaisivis et hoc nobis mandasti tuam commendamus prudenciam).179  In 1213 he ordered the custodians of the bishopric of Ely to restore seisin of his land of `Treueill’ to Ralph de Mora, `and let us know for what reason you have disseised him’.180  Such responses suggest that John did little to distance himself from the often violent actions of his officials, actions which might well have arisen from his own uncertainty of purpose, and as a result shared in the opprobrium which resulted.

 

Something of the way in which John disposed of other men’s lands – or, equally important, was perceived as disposing of them – can be seen in the litigation, extending over several years, between John de Vautort (probably a kinsman of the Vautorts who held the Cornish barony of Trematon) and Robert de Beauchamp (as lord of Hatch Beauchamp a west country magnate) over the manor of Shepperton in Middlesex.  Proceedings began in 1225 under Henry III but were principally concerned with events in the previous reign.181  The overlord of Shepperton was the abbot of Westminster, but the manor had been held in fee-farm since the early twelfth century, and Vautort claimed to be its lord as the heir of his father, another John, and of his elder brother, Richard, who had both held it.  Beauchamp’s response, that his opponent’s claim had been shown to be baseless during John’s reign, when an inquest of knights, held while he was himself a ward in the custody of Hubert de Burgh, found that the elder John de Vautort had no right in the land, which was therefore returned to de Burgh, was in turn disputed by John the younger, who asserted that his father had lost Shepperton not because of any sworn inquest but through the will of the king, whereby he had been disseised (de voluntate domini Johannis regis disseisitus fuit).  And he then described how Richard de Vautort had gone to John and persuaded the king that he had acted unjustly, with the result that he recovered possession of Shepperton, and held it until the outbreak of war, when Beauchamp ejected him.  This was roundly denied by Beauchamp, who said that in fact he had been overseas, as a hostage for the payment of Hubert de Burgh’s ransom, negotiated following his capture by the French at Chinon in 1205 and obviously not fully paid for several years, since in 1215 – in inicio guerre – Richard de Vautort was able to tell Hubert that Beauchamp had died, and for a payment of 200 marks persuaded him to put him in possession of Shepperton.  However, at what must have been about the same time, Beauchamp returned to England, very much alive, whereupon the king and his justiciar (as Hubert had become by 25 June 1215), finding that they had been deceived (quia decepti fuerunt), once more awarded him seisin of the disputed property.

 

Some elements in this story can be confirmed from other sources.  Robert de Beauchamp was probably in the wardship of Hubert de Burgh by 1202,182 and remained so until at least 1214.183  Moreover he was indisputably held captive in France, since in 1209 a Rouen merchant was granted a safe conduct to come to England to collect or raise money to pay for his release.184  That John and Richard de Vautort did indeed obtain possession of Shepperton in 1215 is shown by the king’s having granted it to them on 27 July, when it was said to be in the justiciar’s hand,185 though the award may have been somewhat conditional, perhaps upon Beauchamp’s confirmation of it when he came of age – another action brought in 1225 for land in Shepperton, this time by one John of Laleham, was non-suited when the defendant successfully pleaded that Laleham had been admitted to the property by Richard de Vautort, who had only the custody of it (non habuit inde nisi balliam) through Sir Hubert de Burgh.186  But although litigation between Beauchamp and Vautort was still in progress five years later, the Beauchamps could not be dislodged, and they held Shepperton well into the fourteenth century.187  That seems appropriate, since what supporting evidence there is suggests that Robert de Beauchamp’s pleadings were essentially truthful, and that the claims and actions of the Vautorts were disingenuous when not actively dishonest.  Where the two parties were in basic agreement was in their accounts of King John’s treatment of them.  Vautort clearly thought there was nothing improbable about his assertion either that he had been disseised by John or that he had been able to persuade him to restore him to possession - many such orders were given in July 1215, and since Richard de Vautort was certainly in rebellion after that date,188 he could plausibly have presented himself as a man with a claim on the king’s justice in the summer of 1215. The same impression of impulsiveness is conveyed by Beauchamp’s account of the king and justiciar giving him seisin of Shepperton (without a judgment, as the case is recorded) when they learnt that they had been taken in – it is easy to imagine a fine display of indignatio on John’s part, or even of outright ira.

 

Responses

The Barnwell chronicle noted a wide-ranging disseisin of ecclesiastics in 1208,189 and the Waverley annalist, in his account of the events of 1215 (admittedly written at least ten years later), stated that in his years of misrule John had `disinherited some men without the judgment of their peers, he condemned many to a very hard death ... so to him a tyrannical will stood for law ...’.190  The offences covered by Clause 39 were certainly capable of impinging on the fortunes, and resources, of monasteries, and especially those of the Cistercians, but their chroniclers usually contented themselves with generalised denunciations of government excesses, so that it is in the records of that government that the evidence for its activities, and thus for what contemporaries regarded as its abuses and malpractices, is mostly to be found.  Those records are full of gaps, and in any case the personal character of John’s government means that many of its actions were not formally recorded.  But despite these difficulties, which make quantification impossible, it seems likely that the level of demands and penalties, reinforced by threats, rose markedly in the later years of John’s reign.191  One response, exemplified by the conspiracy of 1212 against the king’s life, was outright resistance, but there are also signs of a deliberate resort to legalism to counter the perceived unlawfulness of much that was done by the king, or in his name, and some of this anticipated the stipulations of Clause 39.  Thus in 1211 Robert de Berkeley, one of the great men of Gloucestershire, proffered a fine of 2000 marks for some undefined offence, and a further 100 marks `for having his reasonable judgment by his peers’192 – Robert must have felt that he had been ill-used, and that such a judgment represented his best chance of redress. 

 

The arrival, and subsequent influence, of Archbishop Stephen Langton may have reinforced traditional convictions that administrative actions affecting the lives, limbs and property of the king’s free subjects could only be taken on the authority of a formal judgment in a properly constituted court.  It is possible that his many years of residence in France led to the archbishop’s comparing John unfavourably with Philip Augustus, who seems to have been careful to proceed by judgment against his adversaries, as, indeed, he did against John himself.193  But his theological learning would in any case have steered Langton in that direction, for he maintained in his writings that although kings should be obeyed, as St Paul had taught, they could only command obedience when they acted within the constraints of law, which was itself seen in terms of due process.194  If a king wishes to kill someone, for instance, `without judgment and unjustly’ (sine sententia et iniuste), and his subjects know that this is so, they are bound to release the condemned man.  It was in keeping with this outlook that, as noted above, when John prepared to attack his opponents in the north of England in the autumn of 1213, Langton twice warned him against acting without first obtaining a judgment in his court, while by March 1215 the same principle was also being upheld in Rome, with Innocent III urging king and barons to reach an agreement, and if that proved impossible then `the dissension which has arisen should be concluded in his court by their peers according to the customs and laws of the kingdom ...’.195  Unable to do without the pope’s support, John himself felt obliged to subscribe to these conditions, on 10 May 1215 conceding to his adversaries – in words anticipating those of Clause 39 – that `we will neither arrest nor disseise them or their men, nor will we go upon them by force or in arms, unless by the law of our kingdom or by the judgment of their peers in our court ...’.196

 

John was playing for time, not least by offering terms which he must have known the barons would not accept, including as they did a role for his own ally, the pope, as the final arbiter.  Anybody who doubted his insincerity would have been disabused when only two days later he commanded sheriffs throughout England to seize all the lands of his enemies (inimicorum nostrorum) and to dispose of their chattels to his best advantage,197 while on 14 May he began to grant away the estates of named enemies, giving them to supporters of his own – the earls of Gloucester, Oxford and Hereford were the first to be treated thus.198  This process soon came to a halt, when the baronial capture of London on 17 May left John with no alternative but to negotiate with the rebels, while in the immediate aftermath of the granting of Magna Carta a large number of grants were made restoring rights or lands to men who claimed to have been deprived of them.199  The beneficiaries were mainly tenants-in-chief, but some were men of lower rank, again demonstrating how deeply the king’s actions could penetrate into landowning society.  A writ sent to the sheriff of Huntingdonshire on 24 June 1215 shows John correcting what had probably been a typical act of dispossession, by ordering the restoration of their lands in the manor of Godmanchester to thirteen tenants of Earl David of Huntingdon, all of whom had been disseised of them `by our will and without judgment’ when their lord came under suspicion of involvement in the conspiracy of 1212 against the king.200

 

The outbreak of civil war demonstrated John’s propensity to dispose of other men’s lands in ample measure, resulting as it did in an intensified use of the methods condemned by Clause 39, and above all in a massive redistribution of lands taken from the king’s enemies.and bestowed upon his supporters.  Characteristically, these grants were usually made during pleasure, suggesting that the king intended them to act as sureties for the loyalty of the men to whom he made them, although this also had the advantage of making it easier for the king to grant them back if it became politic to do so.  At the same time his actions convey the same impression of impulsiveness as many of John’s earlier actions – Warin FitzGerold, a Somerset baron, royal chamberlain and loyalist who had supported John at Runnymede itself, was disseised when war broke out because `he did not serve the lord king as well as he should’;201 even the appearance of lukewarmness, or simply uncertainty, was taken for hostility, which in Warin’s case it duly became, since he eventually joined the rebels.  They also show the king continuing to act on the principle that justice entailed favouring his friends at the expense of his enemies.  Robert Mansel had been litigating since at least 1200 against first Richard and then Hugh of Lotherton over a knight’s fee in Tilton, Leicestershire;202 in March 1216 the fact that Mansel had joined the rebels (est cum inimicis nostris) provided John with grounds for awarding the land to Lotherton `as his right’.203

 

The civil war which showed the king continuing to employ the methods with which he had raised money and imposed discipline throughout his reign also exhibited their results, in that many of the rebels who have been discussed in this commentary had been the victims of disseisin or other abuses of power.  Some of them, especially northern lords like Peter de Brus, Hugh Malebisse, Richard de Umfraville and Roger de Montbegon, might well have rebelled anyway, carried into or kept within the ranks of the king’s enemies by regional loyalties transcending their personal grievances.  But the actions of others among the king’s enemies, men like Richard Gubiun, William Aguillun, Hugh Grassus, Henry de Pomeray, William FitzRoscelin and Matthew of Clevedon, all of whom are noted above as having been disseised at some point in John’s reign, inevitably prompt speculation as to whether they would have rebelled had it not been for John’s arbitrary treatment of them.  The undeniable fact that the quality of justice done in the royal courts was often, perhaps even usually, high, can have been little consolation to such men if legal process was simply going to be short-circuited by executive action, or unduly influenced, even interfered with, by a king who repeatedly showed himself to be violent, exacting and partial.  So widespread was the resentment provoked by John’s disregard, or manipulation, of the forms of law that it may have infected even his own justices, some of whom fell under suspicion of disloyalty at the end of his reign.  Clause 39 aimed to subject intrusions of policy and personality to the constraints of due process.  By doing so it proclaimed, and helped to install, regularity, routine and impartiality as qualities fundamental to the administration of justice, while in the longer term it set in motion developments which resulted in law ceasing to be no more than an agency of government.

1	J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 427.
2	Notably by Holt, Magna Carta, 328-30, and id., Magna Carta and medieval government (1985), 195-6.
3	PR 7 John (1205), 85
4	On this issue I have followed F.M. Powicke, `Per iudicium parium vel per legem terre’, H.E. Madden (ed.), Magna Carta commemorative essays (1917), 96-121.
5	Holt, Magna Carta and medieival government, 243.
6	See R.C. Van Caenegem, Royal writs in England from the Conquest to Glanvill, Selden Society 77 (1959 for 1958-9), 19-23.
7	L.J. Downer (ed. amd trans.), Leges Henrici Primi (Oxford, 1972), 134-5.
8	F.M. Stenton, The first century of English feudalism (2nd edn., Oxford, 1961), e.g. 55, 61 n.6, 91 n.5.
9	PR 2 Richard I (1190), 101.
10	T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 347.
11	R.W. Southern, Medieval humanism and other studies (Blackwells, Oxford, 1970), 231.
12	W.Stubbs (ed.), Chronica Magistri Rogeri de Houeden, 4 vols. (Rolls Series, 1868-71), iv, 157.
13	F. Liebermann (ed.), Die Gesetze der Angelsachsen, 3 vols. (Halle, 1903-16), i, 636.
14	R.V. Turner, Judges, administrators and the common law in Angevin England (1994), 199-213.
15	R.V. Turner, The English judiciary in the age of Glanvill and Bracton, c. 1176-1239 (Cambridge, 1985), 169-71.
16	Holt, Magna Carta and medieval government, 194.
17	Holt, Magna Carta, 123, 126-34.
18	E.H. Kantorowicz, The king’s two bodies: a study in medieval political theology (Princeton, 1957), 96-7.
19	Turner, Judges, administrators and the common law, 253-4 (following Bracton, De Legibus).
20	G.D.G. Hall (ed. and trans.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 2.
21	See Southern, Medieval humanism, 253-4; D. Crouch, William Msrshal: knighthood, war and chivalry, 1147-1219 (2nd edn., 2002), 97-8.
22	T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 123.
23	Holt, Magna Carta, 89-92.
24	E. Amt and S.D. Church (eds. and trans.), Dialogus de Scaccario (Oxford, 2007), 91.
25	Liebermann, Gesetze der Angelsachsen, i, 635.
26	J. Stevenson (ed.), Chronica de Mailros, Bannatyne Club 49 (1835), 117-18.
27	H.R. Luard (ed.), `Annales de Waverleia’, Annales monastici ii (Roll  Series, 1865), 282.
28	British Library, MS Cotton Vespasian E.iii, fol. 175v.
29	T.D. Hardy (ed.), Rotuli litterarum clausarum i, 1204-1227 (Record Commission, 1833 – hereafter Rot.Lit.Claus. i), 136.  For this case see Holt, Magna Carta, 202-3.
30	Rot.Ob.Fin, 84
31	Curia Regis Rolls iv, 1205-1208 (1929), 42-3.
32	Rot.Lit.Claus. i, 168.
33	Ib., 6.
34	Rot.Ob.Fin., 214.
35	Curia Regis Rolls ix, 1220 (1952), 153-4.
36	Chronica Magistri Rogeri de Houeden, iii, 136-7.
37	Turner, Judges, administrators and the common law, 25-7.
38	Glanvill, 102-3.
39	T.D. Hardy (ed.), Rotuli chartarum, 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 98.
40	Curia Regis Rolls ii, 1201-1203 (1925), 147.
41	G. Garnett, `The origins of the crown’, J. Hudson (ed.), The history of English law: centenary essays on “Pollock and Maitland”’ (Oxford, 1996), 171-214.
42	Rot.Lit.Claus. i, 87.
43	Rot.Chart., 207.
44	K. Leyser, Rule and conflict in an early medieval society: Ottonian Saxony (1979), 35.
45	A.C. Lawrie, Annals of the reigns of Malcolm and William, kings of Scotland, A.D. 1153-1214 (Glasgow, 1910), 115.
46	See, especially, J.E.A. Jolliffe, Angevin kingship (2nd edn., 1963), Chapter 4.
47	For this case see Curia Regis Rolls ix, 332-3; also Curia Regis Rolls viii, 1219-1220 (1938), 165, 352-3.
48	PR 32 Henry II (1186), 197.
49	F.W. Maitland (ed.), Bracton’s Note Book, 3 vols. (1887), ii, no 769 (pp. 586-8).
50	Calendar of inquisitions post mortem i (1904), no. 72.
51	PR 26 Henry II (1180), 135.
52	Chronica Magistri Rogeri de Houeden ii, 41; R.C. Johnston (ed. and trans.), Jordan Fantosme’s chronicle (Oxford, 1981), 100-1, 136-7.
53	PR 22 Henry II (1176), 169, 174.
54	PR 24 Henry II (1178), 111.
55	PR 28 Henry II (1182), 19.
56	PR 14 Henry II (1168), 28.
57	PR 21 Henry II (1175), 69.
58	PR 26 Henry II (1180), 57.
59	PR 23 Henry II (1177), 94.
60	W. Stubbs (ed.), Gesta Regis Henrici Secundi Benedicti Abbatis, 2 vols. (Rolls Series, 1867), ii, 76.
61	R.C. Van Caenegem (ed. and trans.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), no. 489 (pp. 533-4).  Other examples of Henry II’s involving himself in the proceedings of his court include nos. 360, 371, 377, 405, 429, 558.
62	P.A. Brand, The making of the common law (1992), Chapter 4.
63	D.C. Douglas and G.W. Greenway (eds.), English Historical Documents: 1042-1189 (2nd edn., 1981), 411 – reference provided by Louise Wilkinson.
64	For some comments see Holt, Magna Carta and medieval government, 82-3.
65	Gesta Regis Henrici Secundi Benedicti Abbatis, ii, 72.
66	Curia Regis Rolls, temp. Rich. I – 1201 (1922), 285; Rot.Ob.Fin., 7.  The date is suggested by PR 6 Richard I (1194), 3, 4, 8, 14, references to farms formerly held by Turpin, and to the sale of his chattels.
67	Turner, English judiciary, 64.
68	PR 2 Richard I (1190), 14 (Murdach), 67-8 (Reiner), 111 (Arden).
69	Ib., 67.
70	PR 6 Richard I (1194), 118.
71	Ib., 124-5 (Lancashire), 169-70 (Devon).
72	Ib., 66 (Hastings), 135 (Umfraville).
73	Ib., 182; PR 9 Richard I (1197), 166.
74	Ib., 233.
75	Holt, Magna Carta, 181; R.V. Turner, The king and his courts: the role of John and Henry III in the administration of justice, 1199-1240 (Cornell, 1968), 183-4.
76	D.M. Stenton, English justice between the Norman Conquest and the Great Charter, 1066-1215 (1965), 95.
77	PR 9 John (1207), 159.
78	Rot.Chart., 219.
79	T. Madox, Formulare Anglicanum (1722), no. dxxi (p. 300).
80	Rot.Ob.Fin., 226.
81	Ib., 216.
82	PR 8 John (1206), 32.
83	PR 1 John (1199), 16.
84	PR 7 John (1205), 261.
85	Rot.Lit.Claus. i, 485.
86	Rot.Lit.Pat., 56.
87	Ib., 76.
88	F.W. Maitland (ed.), Three rolls of the king’s court in the reign of King Richard the First, A.D. 1194-1195, Pipe Roll Society 14 (1891), 69.
89	Rot.Lit.Claus. i, 200 (Braybrooke), 260 (Hastings).
90	Curia Regis Rolls iii, 1203-1205 (1926), 287.
91	Rot.Lit.Claus. i, 55.
92	PR 9 John (1207), 124.
93	Rot.Lit.Claus. i, 90, 107; Rot.Ob.Fin., 392, 437.
94	Details mostly from Curia Regis Rolls vi, 1210-1212 (1932), 151; vii, 1213-1215 (1935), 144-5.  Gor Gibwin see E. King, Peterborough Abbey: a study in the land market (Cambridge, 1973), 129.
95	PR 2 John (1200), 62.
96	Rot.Lit.Claus. i, 16.
97	Ib., 31.
98	PR 9 John (1207), 178.
99	PR 12 John (1210), 14; G.W.S. Barrow, The Anglo-Norman era in Scottish history (Oxford, 1980), 115-16, 182.
100	PR 8 John (1206), 183.
101	PR 11 John (1209), 4.
102	Rot.Ob.Fin., 334; PR 8 John (1206), 208; Rot.Lit.Claus. i, 49, 54.
103	PR 13 John (1211), 12; Turner, Judges, administrators and the common law, 194.
104	Rot.Lit.Claus. i, 158.
105	Ib., 96.
106	PR 6 John (1204), 183.
107	PR 12 John (1210), 98; PR 13 John (1211), 174.
108	Jolliffe, Angevin Kingship, 84-5.
109	Chronica Magistri Rogeri de Houeden iv, 152.
110	PR 6 John (1204), 243; PR 7 John (1205), 249; Rot.Lit.Claus. i, 50.
111	Rot.Lit.Claus. i, 167.
112	Curia Regis Rolls xiii, 1227-1230  (1959), no. 59 (p. 13); Rot.Ob.Fin., 320; Rot.Chart., 158-9; PR 8 John (1206), 33; PR 13 John (1211), 19.
113	PR 2 John (1200), 86; PR 3 John (1201), 18; Rot.Ob.Fin., 103-4.
114	Curia Regis Rolls viii, 1219-1220  (1938), p. x; Rot.Ob.Fin., 564-5.
115	Rot.Ob.Fin., 419.
116	Curia Regis Rolls iii, 170, 337 (Capra), 285, 337 (Amundeville).
117	Rot.Lit.Claus. i, 54; Rot.Ob.Fin., 319
118	PR 9 John (1207), 53.
119	Rot.Lit.Claus. i, 126.
120	Ib., 87; PR 9 John (1207), 177.
121	Rot.Ob.Fin., 379-80.
122	Ib., 515.
123	Ib., 223.
124	PR 16 John (1214), 120; Book of Fees i, 120.
125	Rot.Ob.Fin., 48.
126	PR 12 John (1210), 99; Book of Fees ii, 1408.
127	PR 13 John (1211), 93.
128	PR 12 John (1210), 168-9.
129	Rot.Ob.Fin., 329.
130	Rot.Lit.Pat., 80.
131	PR 9 John (1207), 164; Rot.Ob.Fin., 373.
132	Details from PR 13 John (1211), 106, 148; PR 14 John (1212), 41, 43; PR 16 John (1214), 123; Curia Regis Rolls vi, 381; Curia Regis Rolls vii, 81-2, 140-1, 204.
133	H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum, 3 vols. (Rolls Series, 1886-9), ii, 82-3.
134	Rot.Lit.Claus. i, 60.
135	Jolliffe, Angevin Kingship, 116.
136	Rot.Lit.Claus. i, 85.
137	Rot.Ob.Fin., 372.
138	PR 9 John (1207), 71.
139	PR 10 Richard I (1198), 195.
140	Rot.Lit.Pat., 100
141	Lambeth Palace Library MS 1212, fol. 12v – I owe my knowledge of this document to Nicholas Vincent.
142	Rot.Lit.Claus. i, 165-6
143	Bracton’s Note Book ii, 667.
144	T. Rymer (ed.), Foedera I:i  (1816), 107-8.
145	Rot.Lit.Claus. i, 149.
146	W. Stubbs (ed.), Select charters ... from the earliest times to the reign of Edward the First (9th edn., ed. H.W.C. Davis, Oxford, 1913), 278-9.
147	Holt, Magna Carta, 110.
148	PR 16 John (1214), 7, 120.
149	Stubbs, Select charters, 257-8.
150	W. Stubbs (ed.), The historical works of Gervase of Canterbury, 2 vols. (Rolls Series, 1879-80), ii, 105; R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II and Richard I, 4 vols.  (Rolls Series, 1884-9), ii, 512.
151	British Library, MS Cotton Vespasian E.iii, fol. 175v.
152	S. Painter, The reign of King John (Baltimore, 1949), 270-2.
153	Chronica Magistri Rogeri de Houeden iv, 160-1.
154	W. Stubbs (ed.), Memoriale fratris Walteri de Coventria, 2 vols. (Rolls Series, 1872-3), ii, 200; more generally, C.R. Cheney, Innocent III and England (Päpste und Papsttum 9, Stuttgart, 1976), 309-10.
155	Rot.Lit.Claus. i, 111.
156	Rogeri de Wendover ... flores historiarum ii, 150, 214.
157	Rymer, Foedera I:i, 75-6 – I owe this reference to Nicholas Vincent, who has also drawn my attention to John’s grant of the patronage of Thorney Abbey to the bishop of Ely on 15 January 1215 as another example of a royal anathema, Rot.Chart., 204.
158	Ib., 126-7.
159	Rot.Lit.Pat., 55
160	Rogeri de Wendover ... flores historiarum ii, 66-7; Memoriale fratris Walteri deCoventria ii, 209.
161	PR 3 John (1201), 46, 159.
162	Rot.Lit.Claus. i, 52.
163	Rot.Ob.Fin., 523-4; Holt, Magna Carta, 198, 200-1.
164	Rot.Lit.Claus. i, 181, 247.
165	Rot.Ob.Fin., 86, 329-30.
166	Book of Fees i, 287.
167	Rot.Lit.Claus. i, 134.
168	Rot.Ob.Fin., 482.
169	Ib., 303.
170	Ib., 317.
171	Curia Regis Rolls xi, 1223-1224 (1955), no. 2763 (pp. 555-6).
172	Ib., no. 1383 (p. 281).
173	Rot.Lit.Claus. i, 216.
174	Rot.Chart., 137.
175	Rot.Lit.Claus. i, 216.
176	Ib., 264.
177	Rot.Chart., 88; Rot.Lit.Claus. i, 59.
178	Ib., 50.
179	Ib., 90; Book of Fees i, 38.
180	Rot.Lit.Claus. i, 138.
181	Curia Regis Rolls xii, 1225-1226 (1957), no. 356 (p. 65) is the principal source for this case.
182	Suggested by PR 4 John (1202), 96.
183	PR 16 John (1214), 106.
184	Rot.Lit.Pat., 89.
185	Rot.Lit.Claus. i, 223.
186	Curia Regis Rolls xii no. 861 (pp. 176-7).
187	Victoria County History of Middlesex iii (1982), 5.
188	Rot.Lit.Claus. i, 329.
189	Memoriale fratris Walteri de Coventria ii, 199
190	`Annales de Waverleia’, 282; A. Gransden, Historical writing in England, c. 550-c. 1307 (1974), 415.
191	Jolliffe, Angevin Kingship, 131-2; Holt, Magna Carta, 196-7.
192	PR 14 John (1212), 144-5.
193	Jolliffe, Angevin Kingship, 313-14; J.W. Baldwin, The government of Philip Augustus: foundations of French royal power in the middle ages (Berkeley, 1986), 264-6.
194	See D.L. D’Avray, `”Magna Carta”: its background in Stephen Langton’s academic biblical exegesis and its episcopal reception’, Studi Medievali 3rd series 98 (1997), 423-38; J.W. Baldwin, `Master Stephen Langton, future archbishop of Canterbury: the Paris schools and Magna Carta’, English Historical Review 123 (2008), 811-46.
195	C.R. Cheney and M.G. Cheney (eds.), The letters of Pope Innocent III (1198-1216) concerning England (Oxford, 1967), nos. 1003 (p. 167), 1013 (pp. 272-3).
196	Rot.Lit.Pat., 141.
197	Rot.Lit.Claus. i, 204.
198	Ib., 200.
199	Holt, Magna Carta, 360-1.
200	Rot.Lit.Claus. i, 216; Jolliffe, Angevin Kingship, 329 and n.2.  For the victims see K.J. Stringer, Earl David of Huntingdon: a study in Anglo-Scottish history (Edinburgh, 1985), 50 – I owe this reference to David Carpenter.
201	Curia Regis Rolls x, 1221-1222 (1949), 279.
202	F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols. (Record Commission, 1835), i, 376; Rot.Ob.Fin., 97; PR 8 John (1206), 8.
203	Rot.Lit.Claus. i, 256.