The Magna Carta Project

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

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

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

This famous clause is the shortest in the whole of Magna Carta – just nine Latin words, or thirteen in English. Brevity does not make for concise exposition, however, since the administration of justice was not only one of the most important functions of kingship, but was also well-nigh inseparable from government. The legal reforms of Henry II’s reign, moreover, greatly extended access to the royal courts, so that how the king did justice could potentially affect many more people than previously. Whereas Clause 39 seems to have been principally intended to protect the rights of the lower levels of free society, Clause 40 was primarily designed to safeguard those of barons and knights. The great men of the realm – essentially tenants-in-chief, holding their lands directly from the crown – had a particular need for such protection, since the processes resulting from Henry II’s reforms were at best only intermittently available to them. For the resolution of their disputes they usually had to turn directly to the king, in whose hands justice might at any time be a tool of patronage, a way of favouring friends and allies and hurting enemies, or simply a way of raising money.

The sources provide grounds for believing that this happened under both Henry II and Richard I, though they are often imprecise as to what was done and why. The survival of records is much fuller from John’s reign. What they reveal is by no means always discreditable to that monarch, for they show that he took a close interest in the courts, one of which, the court coram rege, may well have been created on his orders, and that he could be impartial, careful to act correctly, and sometimes even merciful, in his conduct of lawsuits. As with his two predecessors, the evidence is often capable of more than one interpretation, but that may simply show that individual cases were difficult ones, not necessarily that John gave judgment upon them in his own interests. There are a number of recorded cases, however, which show him in a different light, in which he could be partisan, willing to take money from either side, or even from both, and influenced in his judgments by financial, political and personal factors.

In 1210, for instance, John was recorded as having ordered his officials to refuse justice to the Cistercians, in revenge for their having refused him a grant of money, and he was no less vindictive in other cases. Ruald FitzAlan, the constable of Richmond, paid the king some £175 to be secured in his inheritance, but in 1208 still had to face a rival claim in a royal court, almost certainly because he had resisted the imposition of the tax of a thirteenth a year earlier. In a long-running dispute between the Shropshire baron Fulk FitzWarin and members of a Welsh family over the castle of Whittington, John accepted bids from both parties before finally deciding in Fulk’s favour. In other cases it is clear that the litigant who offered the most prevailed. A lengthy dispute between Robert de Courtenay and Alexander of Caldbeck over property in Cumberland was ended by a £200 proffer by Courtenay, whereupon Caldbeck abandoned his case, on the grounds that `the king does not wish that he should have it’. John did not always even try to appear impartial. In a dispute recorded both by the chronicler Matthew Paris and in court records between St Albans Abbey and Robert FitzWalter, a powerful baron with whom John’s relations were never good, over the former’s daughter-house of Binham Priory, the king was said to have expressed open satisfaction when FitzWalter put himself in the wrong by laying the priory under siege, and sent a force of knights to arrest him and his men.

Such cases as these – and there were many of them – do not show that King John’s administration of justice was invariably marred by partiality or corruption. But they do demonstrate that it could never be relied upon to be disinterested, uninfluenced by the external considerations which frequently affected the workings of Angevin government (still often a highly personal affair), and of justice along with it. There were signs, however, that by the time of John’s reign the concept of objective justice, as something existing in detachment from the central administration, was beginning to gain ground, and not least among the judges who presided in the royal courts. Very occasionally they resisted the king’s interference with their work, and after John’s death they did so more often. Clause 40 marked an important stage in the long-drawn-out process which separated law from government. Linked since 1225 to Clause 39, it is still on the statute book today.

Kingship and justice

Like Clause 39 before it, Clause 40 stemmed from, or at any rate reflected, the opening clause of the `Unknown Charter’, in the second half of which the king was represented as agreeing not to take anything for justice, and not to perpetrate injustice.1 When the Articles of the Barons were drawn up in the early summer of 1215, the contents of that single clause appeared as two discrete ones, with Number 30 consisting of a completely impersonal declaration, looking as much like a statement of intent as an undertaking, that `right’ (jus) was not to be sold, delayed or withheld. But in Magna Carta the king speaks as himself, making an emphatic use of the royal plural to proclaim that he –and he alone, the clause is to apply to no-one else2 – will not sell, defer or deny right or justice (rectum aut justiciam), and that there will be no exceptions in this – the benefits of the clause will be refused `to nobody’ (nulli).3 The two terms used to define the substance of the clause were probably chosen with some care (rectum makes its only appearance in Magna Carta at this point) to demonstrate that it covered both the formal, rule-bound, justice dispensed by the royal courts, and that less clearly defined fairness or equity which the king was recognised as being especially able to provide as an alternative to it.4

That justice, too, was regarded as being an essential responsibility of, and adjunct to, royal authority, and one which, moreover, was in principle available to all the king’s subjects. Clause 39 had explicitly restricted its application to free men. Clause 40 did not prescribe a similar limitation, and indeed, by its addition of the single word nulli, appears to have deliberately avoided doing so. The difference may have arisen from no more than an awareness that the king was the fount of justice for everyone in his realm, and a feeling that the clause ought to reflect this fact. Or it may have been more specifically related to the king’s role in the administration of criminal justice, which affected the unfree at least as much as the upper levels of society. But when all allowances have been made for the potential scope of Clause 40, it seems likely that in practical terms its application was closely akin to that of Clause 39, and may even have been more limited in its basic thrust. For whereas Clause 39 met the needs, and therefore presumably responded to the demands, of all ranks within free society, and the evidence is certainly sufficient to show that free men and women of every social rank needed the protection against abuses of power which the succeeding clause afforded, the surviving records nevertheless suggest strongly that its main purpose was to protect barons and knights, that is, the upper ranks of society, against King John’s exploitation of his judicial authority.

The twelfth century was a great age of legal development throughout Europe. The papacy led the way, but was soon followed by kings and princes affected by papal claims and demands, with the result that by the time of Magna Carta there were increasing numbers of centrally-directed courts, both lay and ecclesiastical, which steadily became more professionally administered, more rational in their procedures, and more authoritative in their judgments, than any courts had been for many centuries. This process arguably went further in England than in any other country except possibly Sicily. Needing to restore order after Stephen’s reign, and keenly aware of the financial gains to be made from the operations of his courts, Henry II’s control of a uniquely powerful apparatus of government enabled him to set in motion the creation of a judicial system of exceptional range and versatility, one which owed its effectiveness both to its widespread acceptance among members of free-born society, who made ever-increasing use of the services it provided, and also to the coercive power of the king’s government which enforced, and reinforced, the decisions of its courts.

Those two elements were not exactly in opposition – the royal courts would have been useless, and little-used, had their decisions been incapable of enforcement. But the situation was continuously complicated by the double-faced nature of royal justice, which meant that the king’s interests were by no means always those of his subjects where the administration of justice was concerned. Although the provision of justice was traditionally one of the fundamental elements in kingship, sworn to at the beginning of every reign in the coronation oath, the system dispensing it was the king’s, allowing him to regard it as effectively his personal property, to be controlled and manipulated as he pleased. The treatise known as Glanvill, written in the last years of Henry II’s reign, was at pains to deny that `favour and partiality’ might `drive any man away from the threshold of judgment.’5 Richard FitzNigel, in his Dialogus de Scaccario, begun in 1177 and finished during the next ten or twelve years, also exclaimed indignantly against the very possibility of justice being sold for money, but acknowledged (appropriately, given his fiscal terms of reference) that the king was willing to receive payment for hastening justice, and also that `he shows the fullness of justice to some individuals for free, on account of services rendered or out of charity, whereas, being only human, he refuses to favour others for love or money ...’.6  Henry II exercised, in fact, a very wide discretion in matters relating to justice, so wide that he might well have found Clause 40 of Magna Carta incomprehensible, or at any rate intolerable, believing that nobody had the right to place restrictions on his ability to sell, defer or deny justice as he saw fit. But even during his reign, and still more by the beginning of John’s, an ever-growing demand for the benefits of royal justice had come to be accompanied by criticism of the abuses seen as accompanying its provision, of the way it could be disposed of at the king’s pleasure, and of the opportunities it afforded for corruption and misuse, arising from the avarice and pursuit of power of the men who administered it. What in the Dialogus and Glanvill may have been little more than lip-service to the notion of disinterested justice, had become an increasingly serious issue some twenty years later.

 

Risks and opportunities

Accusations of corruption levelled against English judges in the years on either side of 1200 were often linked to complaints about their humble origins, implying that poverty made them greedy for money and land, which in turn led them into dishonourable courses. It is true that few of them were of noble birth, but otherwise their critics exaggerated the obscurity of their backgrounds – in fact most of them came from knightly families.7 A good example is Osbert FitzHervey, whose alleged misconduct on the Bench brought him a place in the chronicler Ralph of Coggeshall’s vision of hell, mocked by demons for his readiness to take gifts from plaintiffs and defendants alike, and appropriately condemned to an eternal diet of burning coins.8 Osbert may well have been greedy, but it was not being born into poverty that made him so, since he was the nephew of one justiciar, Ranulf de Glanville, and the brother of another, Archbishop Hubert Walter, and came from a solidly-based Suffolk landed family. It was accepted that the wheels of justice and government needed oiling, and that presents of money were bound to be offered, and taken, for that purpose. John of Salisbury tied himself into knots trying to define what the limits should be in this process, and in the end could only prescribe moderation, writing of royal justices (proconsules) that they `are neither to refrain from gifts totally nor to exceed the mean greedily ... it requires an inhuman strength to accept from no one; but to accept indiscriminately is most vile ...’. He also recommended, optimistically, that the taking of presents should be limited to food and drink.9 In fact it appears to have been taken for granted that bribes would be tendered, and received, at every level of government. The satirist Walter Map exempted the exchequer (which in Henry II’s reign was still at the centre of judicial as well as financial administration) from accusations of ill-doing, claiming that it was incorruptible because it was continually under the king’s eye, but asserted that justices itinerant, and other officials in the localities, could always be led astray by gifts (premia pervertunt eos).10

Despite this background of seemingly widespread venality, the English courts under Henry II and his sons were seldom charged with anything like the corruption notoriously associated with the Roman curia.11  Papal judges delegate in England also seem to have been relatively scandal-free, though allegations of partiality and bribery were recorded,12 and may help to explain the efforts occasionally made to improve standards of conduct in church courts, some of them in terms strikingly close to Clause 40. In 1186, for instance, synodal canons issued by Bishop Hugh of Lincoln included the order that `nothing is to be given or accepted for doing or hastening justice’,13 while in 1213 or 1214 a canon originally promulgated by a legatine council at York was tightened up at Canterbury to forbid `that anything be accepted for doing, deferring or hastening justice ...’.14 The phrasing of this canon brings it so close to Clause 40 as to raise the possibility that members of Stephen Langton’s entourage drafted the latter as well as the former, but it would probably be safer to regard the similarity as evidence that the administration of justice was faced by identical problems in both secular and ecclesiastical courts.

Nobody suggested that the pope was personally corrupt, at worst he could only be criticised for failing to eradicate the shortcomings and abuses of the system which operated in his name. It was less easy for the king of England to detach himself from the workings of his own government in matters of law, precisely because both tradition and deliberate policy emphasised his own responsibility for them. The words of the Dialogus cited above were mirrored by those of the legal treatise Glanvill, describing the grand assize as `a royal benefit granted to the people by the goodness of the king ...’.15 Where judicial administration was concerned, the king’s justices were avowedly his agents, charged with the promotion of his interests,16 and no effort was made to distinguish between him and them; in the words of a writ reported in the Bench in 1201, `all pleas which are held before the justices of the Bench are understood as being held before the lord king or the chief justiciar’, the latter being the king’s alter ego, acting in his place and with his authority when the former was out of England.17 He presided over a judicial system in whose workings no meaningful distinction could be made between the king, the justices he appointed, and the courts in which both he and they presided. His critics accordingly took the king at his word; shortly after John’s death he was himself denounced for the wrongs done through the gifts wickedly and deceitfully taken by his judges (pro muneribus acceptis inique et fraudulenter iudicancium).18

The judicial system whose workings lay at the heart of Clause 40 operated on the authority, and in the interests, of the king. Despite its shortcomings it was on the verge of becoming capable of administering the impartial justice which was regarded as an essential component of good government, but it could not yet be relied upon to provide such justice because the king was not prepared to lose control of the system’s workings. The basic quality of royal justice, whatever the shortcomings of the men who dispensed it, was seen as high, and demand for it was accordingly very great, as other clauses in Magna Carta demonstrate. Its processes had their inconveniences. It could be slow, and access to it had to be paid for, though the standard rates for the writs which initiated lawsuits were usually very low – 4d. in the late twelfth century,19 6d. by 1215,20 where it stayed for centuries. But these were minor difficulties, of a kind which afflicted every system of medieval justice, and in any case they persisted long after Magna Carta. The fundamental problem was that financial profits which the king’s control of his courts brought him, and the enhancement of power which this gave him, above all through opportunities for patronage and for intervention in the affairs of his leading subjects, were too valuable for him to be willing, or indeed able, to relinquish them. It was, indeed, accepted (by John of Salisbury, among others) that it might be the king’s duty to moderate the strictness of legal procedure when this seemed necessary.21 But the involvement of the Angevin kings in matters of law went far beyond occasional interventions, and had the effect of making the unpredictability of their own personalities a constant factor in the administration of justice, in ways which became increasingly liable to cast doubt on the validity of their actions, even when these were capable of being regarded as acceptable or even laudable.

 

Precedents (1): Henry II

As with so much else, these developments first become clearly visible in the reign of Henry II. The evidence is fragmentary, but sufficient to show him presiding in court on a number of occasions, and taking a close and often decisive interest in what happened there. His conduct in legal affairs did not go uncriticised. Peter of Blois thought he failed to exercise effective control over his justices, who were allowed to fleece the poor,22 and Walter Map made a similar point, allowing that Henry himself was `an acceptable minister of justice’, but regrettably apt to have the wool pulled over his eyes by courtiers and others, who without the king’s knowledge made money hand over fist from the operations of his courts. He was also, Map thought, too ready to follow the advice of his mother, the Empress Matilda, that he should prolong cases indefinitely, with the result that people gave up, or even died, before their business was dealt with,23 while to Gerald of Wales he was `a seller and delayer of justice’.24 Sharpest of all was Ralph Niger, who in an extended diatribe denounced Henry II not only for choosing unworthy men as his justices, but also for his own conduct in abolishing old laws and introducing new ones, and in being inordinately pernickety (cavillantissimus) in the excuses he found for delaying lawsuits, a practice which time and again enabled him to sell the law to those from whom he was himself withholding it.25

The famous record kept by Richard of Anstey of his expenditure during his extended lawsuit (1157-63) for his inheritance illustrates in detail both the delays and the costs potentially incumbent upon litigation, admittedly in ecclesiastical as well as royal courts. On one occasion Richard had to wait thirteen weeks in south-west France to obtain a writ, and his outlays included a round 100 marks to the king, as well as a total of £11 `in gifts, in gold and silver, and in horses’ distributed in the curia regis.26 Richard’s difficulties, and also his doggedness in prosecuting his claims, were doubtless exceptional, but the pipe rolls of Henry II’s reign record many modest payments, often made to justices itinerant, which were avowedly intended to lubricate the machinery of legal practice. Sums ranging from two to five marks were usually given for hastening right or judgment, while just one or two marks normally sufficed to have a case transferred from a county or seigneurial court to a royal one – the latter provided a better commodity, so it was proper that access to it should be paid for.

The amounts paid could be much larger, however, and they might also be added to during proceedings. In 1186 Nicholas son of Robert FitzHarding was recorded as having initially proffered forty marks for hastening judgment over land at `Stanbrige’, but a further ten marks was later added to his debt (postea accrevit), which it took him five years to pay.27 These more substantial payments often involved important people or considerable estates. Thus William de Fécamp proffered twenty marks in 1165 `for hastening justice’ in a plea concerning land which he claimed against the bishop of Winchester, from whom he held three knights’ fees in Hampshire (the debt thus incurred was finally cleared in 1203),28 while in 1172 Robert Malherbe, a Bedfordshire landowner, promised no less than £100 `for hastening justice against Nicholas de Manna over his inheritance in Normandy and England’, a sum which it took him sixteen years to pay.29 Malherbe’s case seems to have been resolved by judicial combat, others were concluded by fines in the king’s court, for which those concerned might have to pay heavily; in 1187 Guy de Vere and his son-in-law Adam undertook to give £80 each to have a land dispute settled there (property-owners in Lincolnshire, they may not have been rich, and were certainly very slow to pay up).30

Although such cases show the king disposing of a valuable commodity in a seller’s market, they do not suggest that in doing so he compromised the quality of what he provided. It is not always possible to be certain that this was so; Andrew Picot’s payment of forty marks in 1170-1 `for having the king’s peace’ has the appearance of a straightforward purchase of a pardon for wrong-doing,31 and the same might be suspected of Robert FitzBrien’s proffer of sixty marks `for quittance of the judgment of [hot] iron in London’, made in 1177 and cleared in the next three years.32 But these could also have been borderline cases, where uncertainty about facts or points of law made it seem reasonable for a litigant or suspect to pay to have the benefit of the doubt. The proffer by John Maltravers, a landowner in Berkshire, Wiltshire and Surrey, of 100 marks (paid off between 1185 and 1188) `that he may be quit of the plea of the appeal of [breach of] the king’s peace, for which his son went to the ordeal of water’ may have resulted from such an outlook. Unfortunately the pipe roll sheds no other light on the appeal, making it impossible to say why John was prepared to pay so large a sum. It seems likely that he was accused of being in some way an accessory to the offence alleged against his son, and may have made his proffer after the latter succeeded in the ordeal, in order to avoid having to follow him into the water. The sheer size of his proffer, however, suggests that the son was convicted, even though the pipe roll is silent on the point, but that one conviction was ultimately thought to be sufficient, especially when the king was offered a material inducement to see the case in that light.33

Hervey Cuterun’s payment of forty marks (made over nearly twenty years from 1177), `for having judgment against Agnes of Dennington for the death of her husband’,34 looks remarkably like an attempt to secure a conviction on charges which might otherwise not have come into court, prevented, perhaps, by the opposition of her kinsmen, whereas the payment of forty marks in 1185 by the Yorkshire baron Robert de Lacy, `that the case concerning his men, who are said to have killed outlaws, may be before the king or the justiciar’,35 could show Robert securing the law’s protection for his men against the kindred of the men slain, for whom their status, which should have deprived them of legal protection, was no deterrent against the pursuit of vengeance. Both cases might have constituted straightforward attempts to buy preferential treatment in court, but each is also capable of being construed otherwise.

The Dialogus explained that those who offered money to have their cases expedited were not called upon to pay until their cases were heard, and that if they lost they were similarly exempted from payment.36 A note in a pipe roll that a litigant making a proffer of this kind `nondum habuit rectum’ may thus be evidence of failure in litigation rather than of the law’s delays. Even so, there can be no doubt that delays took place and that they could be severe, Ranulf de Glanville’s complacent comments on the relative speed of the royal and ecclesiastical courts notwithstanding.37 Bartholomew of Creake, an important subtenant of Earl Hugh Bigod in Norfolk, proffered twenty marks in 1175 `for right over Surfleet’. This was recorded every year until 1188, when the clerk added a note to that year’s pipe roll: `But he has died and he did not have right although he had made many demands for it (multum institisset)’.38 Geoffrey Gibwin, sued by John de Montacute in 1213 for the advowson of Marsh Gibbon church, Buckinghamshire, claimed that an action over that church and other property between his own father and Gervase Paynel during Henry II’s reign had lasted for eleven years.39 The action begun in 1185 by Roger of Sandford, an Oxfordshire tenant of Abingdon Abbey, might have lasted just as long, had it not been discovered in 1192 that the treasury had lost the charters relevant to the case which he had deposited there – understandably, he was pardoned the ten marks which he had proffered for a hearing in the king’s court.40 Although delays so extended were probably unusual, these cases show that speedy justice could not always be counted on, even when the king did not wish to delay proceedings for reasons of his own, and help to explain why litigants were prepared to pay to have their cases heard.

 

Precedents (2): Richard I

Legal administration continued along broadly similar lines under Richard I, though the new king’s greater financial needs, successively for his crusade, his ransom, and his wars in France, may have made him, or those who governed in his name, more willing to exploit it, just as awareness of those needs probably made some litigants more willing to offer money in the hope of obtaining favourable treatment. Although the sums involved were larger, proffers like those of Gilbert of Meppershall, a Bedfordshire landowner who from 1193 owed (but may not have paid) twenty marks `for having right and judgment concerning lands which he claims pertain to his serjeanty which he holds of the king’,41 or James de Ros, who found it expedient to pay £4 in 1194 for lands in Kent which he lost because they were said to have escheated to the king, but which were later found to constitute James’s own inheritance,42 or Roger son of Robert de Conyers, one of the bishop of Durham’s most important tenants in Yorkshire, who was recorded in 1196 as owing forty marks `for having right in the king’s court against his uncle Roger for his father’s land in Hutton Conyers, Norton Conyers, Girsby and Over Dinsdale’, and cleared his debt within two years,43 differed little from many similar payments for justice made under Henry II. King Richard’s absences created new problems, and justified new payments for resolving them. Alan FitzRoland proffered twenty marks in 1195 for land worth £6 in Thenford, Northamptonshire, which he lost to Ralph Murdac `because Alan did not have the king to warrant in Count John’s court at the term prescribed, that is, at the end of three months, and the king was then on his pilgrimage of Jerusalem’, and a year later had to promise a further thirty marks to recover the same property;44 possibly Alan’s case was not as straightforward as his initial proffer implied (his right to vouch the king to warranty was certainly doubtful), but it is just as likely that the deal reflected nothing more complicated than the government’s determination to sell its services as dearly as possible to a man who could afford to pay the asking price (as Alan duly did, clearing his debt in 1198).

Advantage in judicial proceedings involving felony could also be obtained in return for money. In 1192, for instance, Robert of Slaughter, Gloucestershire, proffered ninety-six marks (£64) `for the release of his son who was charged with homicide’,45 a felony of which Glanvill noted that `the accused is not allowed his freedom on giving sureties except as a special royal favour.’46 Clearly that favour could be bought if the price was high enough; Robert cleared his debt in 1199. Similarly in 1196 Alfred the carter, another Gloucestershire man, was allowed to proffer ten marks (paid in the next five years) to be released to pledges after he had been arrested `on suspicion of the death of a man killed in his house’,47 that is, in circumstances which were normally regarded as distinctly prejudicial. Again, it may be that the entries on the pipe rolls sometimes conceal mitigating circumstances. In 1194 Reginald de Tewaden (later entered as William of Dupath), a Cornishman, proffered twenty marks `for having his land and inheritance and that he may not abjure the king’s land because he underwent judgment of hot iron.’48 It is possible that Reginald succeeded in the ordeal, but was obliged to abjure under the assize of Clarendon of 1166 (repeated ten years later under the assize of Northampton) because his reputation was bad, and that behind the proffer there lay a claim that he had been maliciously accused. But the surviving record does not say so, and to outward appearances this, too, was a case which shows how money could obtain favourable treatment from a fiscally hard-pressed government – the debt was cleared in 1199.

Some proffers, indeed, were made on terms hardly distinguishable from attempted bribes, suggesting that the men who made them fully understood how the king’s needs could be exploited to their own advantage. Robert de St Stephen, a Devon landowner, offered twenty marks in 1194 to delay proceedings in a lawsuit over his mother’s estates while he obtained the king’s warrant for them. `And’, the pipe roll continues, `if the lord king warrants him, then he will give forty marks with the aforesaid twenty’. Probably the king did not do so (Richard I was, after all, probably either in captivity in Germany or on campaign in Normandy when the proffer was made), since the debt was enrolled as one of twenty marks, which Robert paid off in the next five years.49 Geoffrey de Mandeville, faced in the same year with a challenge to his inheritance in England and Normandy by Henry de Tilly, proffered 100 marks `for having the judgment of the king’s court’, and undertook to pay a further 400 marks when he obtained seisin of his inheritance.50 (Geoffrey’s son William resorted to similar tactics in 1201, when he proffered 100 marks `for having the record and reasonable judgment of the king’s court’ on the action between his father and Henry de Tilly, and undertook to pay the 100 marks if he lost, but to give 500 if he won – only the lower sum was entered on the pipe roll, for reasons explained by an entry on the 1206 pipe roll on the authority of the justiciar, cancelling the debt `as he could not have right on account of the king’s prohibition’; by then, however, Tilly’s adherence to the French had resulted in Mandeville’s being granted the barony.)51

The heirs of the Devon landowner Robert Foliot proffered eighty marks in 1196 `for having right concerning the whole inheritance of Robert Foliot their grandfather in the king’s court against those withholding it, and for having the land from that inheritance which was seized into the king’s hand’ – they would litigate for some of the estate, no doubt in the hope that their payment would bring them advantage, and simply buy the rest (they eventually paid most, but probably not all, of their proffer).52 In the same year Gilbert de Tours (a tenant in Lincolnshire of the earl of Chester) promised 300 marks `for having the judgment of the king’s court concerning land which he claims from Hamo de Masci, and for having seisin if the judgment of that court gives it to him’, thus in effect bidding for judgment and possession together.53 Ecclesiastics might pay to have the decisions of church courts upheld by the king’s authority. In 1197 William Testard, newly installed in the archdeaconry of Nottingham, gave the king £200 for the reassurance of `having his archdeaconry as it was awarded to him by judges delegate’.54 Supply and demand worked together in these cases, showing how the steadily developing range and sophistication of the royal courts opened up new avenues for the exercise of royal authority, as often as not in response to demands, and payments, by litigants for intervention of this kind.

 

King John: the problem of delay

Their frequent absences overseas meant that under Henry II and Richard I judicial administration usually operated at a certain distance from the person of the monarch. Under King John this increasingly ceased to be the case. Despite his recurrent absences between 1199 and 1204, John also spent some extended periods in England during those of his reign, and in many different parts of it, while after 1204 he was far more often resident in England than not. From the beginning of his reign, moreover, he involved himself closely in the business of his courts, to the extent of creating a court coram rege in 1200 with the intention that it should function under his own direction.55 The evidence that he did so, and for the way this, as well as other courts, operated, is provided by legal and administrative records which survive on a scale unmatched by those of Richard I, let alone Henry II. This could mean that what look like tendencies particular to John’s reign were in fact only continuations, at most intensifications, of ones already developing under his father and brother. The evidence already cited does indeed show that there were grounds for, and expressions of, discontent concerning the administration of justice long before 1199, and it seems likely that the expedients of Richard I’s reign, in particular, set precedents which his successor was happy to learn from and to follow. Even so, an examination of the records of the exchequer – and these, unlike those of the chancery, survive in a well-nigh continuous sequence from 1155 onwards – argues strongly that there was in fact a steady intensification in the fiscal pressure exerted by the king’s government during John’s reign, and that the crown’s exploitation of its judicial powers played a central rôle in this process.

That said, it must be acknowledged that there were complicating factors in all the aspects of the administration of justice covered by Clause 40, and that these can create uncertainties in the interpretation of the surviving evidence which have to be taken into account when assessing the quality, in terms of both merits and shortcomings, of John’s handling of matters relating to law and justice. They do not necessarily show that that handling was faultless, but they sometimes raise doubts as to whether it was truly as unprincipled as it may at first sight appear. The delays which Clause 40 aspired to remedy, for instance, could doubtless be caused by favour or caprice on the king’s part, but they might also result from his absences, a factor whose impact was compounded by John’s interest in justice, and his willingness, even eagerness, to reserve cases for his own consideration. During the period up to the end of 1203, when the king was often in France, along with many of his subjects, lawsuits were frequently held up by grants of protection made to men serving overseas. In November 1201, for example, the newly-appointed seneschal of Gascony and Anjou, Robert of Thornham, received such a grant, with an additional clause ordering that `he is not to be impleaded for any of his tenements which he held in peace when he last crossed the sea in our service, for as long as he shall be overseas in our service at our command’,56 and earlier that year an action of debt brought by a London vintner and his wife against the northern baron William de Mowbray had to be adjourned because William was serving in Normandy.57 By the beginning of 1203 the king’s need for service, and money, had become such that order was given that those who paid scutage rather than cross the Channel should still receive grants of protection, on the grounds that their money was `in the king’s service overseas’ even if they themselves were not.58

John’s desire to hear particular cases caused numerous delays, like the appeal involving the men of William de Warenne and those of Hugh of Folkington which was mentioned almost in passing in 1202, when it was respited `until the lord king comes to England, since he wishes to hear that case’.59 Such was his determination to hear an action between two Lincolnshire magnates, Gerard de Canville and Thomas of Moulton, that although he notified the justices of the Bench in Michaelmas term 1201 that proceedings were to be held over until he was back in England, he also added that they were to take security from both parties, `so that they cannot withdraw ...’.60 Occasionally additional complexities were recorded, the privileges claimed by a litigant, for instance. After Richard de Grenville, an important Devon landowner, had proffered forty marks and a palfrey in 1200 for two assizes against the abbot of Tewkesbury over Bideford and Kilkhampton churches, subsequent proceedings were deferred at least three times as a result of the abbot’s having obtained a writ directing that he was only to be impleaded before the king or the justiciar.61 And the commitments of the king’s ministers could also help to create delays. In Michaelmas term 1204 John ordered that an action between Henry Levesque (who seems to have been primarily a Lincolnshire landowner) and the prior of Ely over lands in Cambridgeshire should be heard before himself `wherever he should be in England’. But when the case came into court, at the following Easter, the prior declared that he could not answer without his bishop, whom he vouched to warranty. The bishop of Ely was then John de Gray, a man continually employed on royal business, who appears to have been too busy to appear in court to support the prior, since in 1207 Henry found it necessary to proffer three palfreys to have his action proceed `justly and without delay’, after it had been stayed on the king’s order (its conclusion, if any, is unknown, and may have been further delayed by Gray’s appointment as justiciar of Ireland late in 1208).62

The fact that the king might be called upon to warrant a litigant, even though he might himself be overseas, could also be a cause of delay. Strictly speaking the king was not obliged to provide the warranty requested, but John sometimes did so. In 1203, for instance, Agnes de Gundeville proffered £20 for an assize of mort d’ancestor against Hugh Esturmi for land in Offham, Sussex. When the case came to court Hugh presented a charter of Henry II and called upon King John to warrant it, but then had to wait for him to do so because John was in Normandy, and ordered that proceedings be respited `until [it can be heard] before us when we come to England’. The outcome of the case is unknown, but the fact that Agnes was not recorded as paying her proffer may well indicate that John eventually supported Hugh’s claim.63

A more complex illustration of the difficulties that might arise from warranty is provided by the lawsuit between Mr Reginald of Paris and Samson FitzWilliam over land at Chesterton, Cambridgeshire. Reginald was a royal clerk, who had been presented to Chesterton church by Richard I, and claimed the land as appurtenant to his benefice, whereas Samson claimed it as his own lay fee. Proceedings probably began in 1200,64 but seem to have hung fire, since in 1202 Samson proffered five marks for a recognition over the property to proceed without delay.65 Reginald countered this by paying ten marks to have the action stayed, and now had the advantage inherent in his having actually handed over the money – he may have been a royal chaplain, since he was said to have paid it into the king’s chamber in Normandy. Samson riposted by raising his bid, offering fifteen marks to have the assize go forward,66 only for Reginald to bring proceedings to a halt by vouching the king to warranty. John acknowledged his liability, but he was then (June 1203) in France, and could not do what was required for the time being, and so he ordered the justiciar to halt proceedings until his next coming to England. He probably expected his warranty to end Samson’s suit (as it would normally have done), for two days later he also told the justiciar to return to Samson as much of his proffer as had been collected,67 but the outcome of the case, as so often, is unrecorded.

 

Justice in a seller’s market

When compared with necessary, or at least explicable, delays, it might be thought that selling or denying justice constituted offences against fair-dealing which could admit of no mitigation. But again, the evidence that John perpetrated such offences in ways which his subjects invariably regarded as intolerable is not always clear-cut. Where the provision of justice was concerned he was throughout his reign in the happy position of having the best wares at his disposal in what was certainly a seller’s market, one made all the more advantageous by the uneven development of the law he was expected to administer and uphold, and particularly where tenants-in-chief were concerned. Some of the procedures at the disposal of lesser men were simply not available to those who held their lands directly from the crown, while others could be used only with difficulty, if at all, to resolve issues dividing the great men of the realm, issues which were often ancient in their origins and complex in their later development.68 As a result, the king enjoyed a good deal of latitude in the way he treated the lawsuits of the magnates, for whom the curia regis was the natural, indeed arguably the only, place for the resolution of their disputes and conflicts. Consequently he was able to exercise a controlling influence over the conduct and outcome of their litigation when they sought justice from him as their sovereign lord.

That influence, at every social level, was most commonly sought through offers of money made by litigants who believed – and were manifestly not discouraged from believing – that when they approached the king in the expectation of justice they should not come empty-handed. Sometimes the king simply took what he was offered and gave what was asked for, but his response was often less straightforward than that. Many of the proffers recorded on the fine rolls achieved nothing, and were never even transferred to the pipe rolls. Many more were formally recorded there, and thus acquired the status of crown debts, but some of these went wholly unpaid, and others were collected slowly, and not always in full. But large debts, in particular, could be treated as being like fiscal hostages, and the possibility that John would demand, and enforce, their payment in full constituted a weapon in his armoury of control which he must often have found almost as valuable as the money itself.

Many, cumulatively most, of the recorded proffers involved relatively modest sums. If actually paid, they might well have constituted significant outlays for the litigants involved, but it seems unlikely that they were what the barons had principally in mind when they drew up Clause 40, intended as they usually were either to obtain access to the highly-regarded justice dispensed by the king’s courts, or to speed up the progress of their lawsuits once they were in motion there – they can hardly have been made in the expectation that they would influence any subsequent proceedings. Many such payments were made over actions of novel disseisin. What was being purchased, for sums usually ranging from 6s. 8d. to 40s., was not so much the writ which initiated a lawsuit, as the right to have the action which followed heard in one of the central courts, rather than having to wait for the next eyre or visit by justices of assize.69 (By 1215, it should be noted, there had been no eyres since May 1209, while Clause 18 of Magna Carta argues that sessions by assize justices were less frequent then litigants required.)

 

The advantages of access

A number of such actions can be identified in the court records, and they show precisely why these payments were made, and went on being made. The litigants seem often to have been small freeholders, men like James of Fulston, who in 1207 proffered one mark `for hastening judgment’ on his action against Thomas de Ravenescumbe over twenty-nine acres in Cobham, Kent.70 In this case there may have been an element of desperation behind the proffer (which was paid within a year), since James’s lawsuit had begun no later than Easter term 1203, four years earlier, and had been subjected to constant delays, which may, indeed, have continued, since no conclusion to the action is recorded (the very fact that his proffer was paid in full makes it likely, however, that he eventually brought his suit to a successful conclusion).71

A presumption of urgency seems often to have been implicit in such cases. When Adam the dean of Burnham paid one mark in 1199 to have a recognition of novel disseisin against two men for a tenement in Burnham Thorpe, Norfolk, and only six of the jurors turned up, Adam was given a writ to the sheriff ordering him to summon the necessary number, `so that the assize may not be stayed.’72 Other cases are on record as going briskly forward. Probably late in 1202, for instance, Roger FitzHumfrey proffered one mark to have an assize of novel disseisin heard at Westminster between himself and his brother Odo, over a tenement in one of the Oxfordshire Bartons, as it duly was in Hilary term 1203 – Roger regained seisin and four marks in damages, and paid his original proffer in the following year, probably well satisfied.73 In 1206 Gerald the miller proffered, and paid, 6s. 8d. for a writ of novel disseisin against two men and a woman for a tenement in Wilbraham, Cambridgeshire. In Easter term that year the assize was taken, Gerald recovered his land, damages were awarded and the defendants were amerced.74 The action of novel disseisin for which John of Wiggenhall proffered two marks in 1214, claiming that he had been dispossessed by three men of a tenement in Tilney, Norfolk, was no less expeditiously dispatched – much more so, indeed, than John’s payment, which was only completed in 1224. The proffer specified that the case should be heard at Westminster, and despite the possible difficulties involved in assembling an East Anglian jury there, in Trinity term the recognitors were nonetheless convoked, the question was put, and the verdict was given. John recovered his seisin and damages of 20s. were awarded against the defendants, who were also amerced.75

All these cases involved men of modest means and standing, but similar payments could be made by more eminent people, to the same ends and with the same results. In 1206 Richard de Canville proffered 2000 marks and ten palfreys for the inheritance of Gilbert Basset, whose daughter and heir Eustachia he had married.76 But he also became embroiled in a lawsuit against Gilbert’s widow Egelina de Courtenay, over her right to dower in the Oxfordshire manor of Salford, and in 1208 he took steps to bring this to an end, by proffering three palfreys `for hastening his judgment over the manor of Salford’.77 The outcome, reached in Trinity term 1208, was a decision that Egelina was entitled to nothing in Salford, followed by a settlement which awarded her a modest holding there.78 In the light of his large initial proffer, Canville might reasonably have grudged the further outlay, but he may have thought it worth his while, since it brought a swift end to his dispute with his mother-in-law, and in any case he doubtless expected, as a wealthy man, to have to pay more than humbler litigants (it is not in fact clear that he had to pay anything, either in horses or in cash).

Just as three palfreys, the equivalent of £10, represented a higher price than litigants usually paid to hasten a judgment or to have an action of assize of novel disseisin heard, so in a few other cases litigants who are usually identifiable as men or women of rank had to offer larger than average sums for the writs which initiated their lawsuits, especially for darrein presentment or mort d’ancestor, sums ranging from twenty to sixty marks, or even more. In 1202 the earl of Clare proffered as much as £100 for an assize of mort d’ancestor against Roger de Tony over the Norfolk manor of Saham, but his action never got off the ground, and six years later John cancelled the debt, `because he could not have what he made the promise for.’79 In any case it was not bringing an action within the competence of a royal court which was usually the principal cause of expense, and thus of grievance, so much as the incidental payments made necessary by the conduct of a lawsuit, not to mention its conclusion, once it had come within the king’s immediate jurisdiction.80 These, far more than the cost of an initiatory writ, were liable to arise from the king’s intervention, and to provoke indignation accordingly, and to do so, moreover, principally among the wealthier and more powerful of the king’s subjects.

 

Observing the proprieties

It needs to be acknowledged that there was hardly any intervention which the king could make in a lawsuit which was incapable of arousing protests from at least one of the parties involved, even if no money was paid for it. It therefore also needs to be said that there were numerous cases in which King John’s interventions in the processes of justice do not seem to have been either interested or malign, and where the keen interest in the work of the courts which he often displayed shows no signs of having been inspired by ulterior motives. Indeed, his actions can sometimes appear to have been perfectly reasonable, even virtuous. In 1201 one Henry of Denstone proffered 40s. for judgment against Nicholas de Winstre and his wife Hawise (also recorded as Hawise of Waterfall) over four bovates of land in Butterton, Staffordshire. Hawise came into court, and declared that the land was her own inheritance, but that she stood in danger of losing it because her husband, corrupted by gifts from Henry, was refusing to come into court to defend the action, and she, too, offered 40s., this time for a grand assize to decide on the issue of right between Henry and herself. She had made a similar claim a year earlier, but the justices who heard it may have ruled against her. King John, perhaps surprisingly, was made of softer stuff, for `moved to pity’ (motus misericordia), and having also consulted the justices present, he accepted her proffer and ordered that the grand assize proceed, though strictly speaking the action should probably have gone against Hawise as undefended (its eventual outcome is unrecorded, though since Hawise had paid off her debt by Michaelmas 1203, while Henry is not recorded as having paid anything, it may well have been decided in her favour).81

John’s decision in this case, which can hardly have been affected by the modest financial inducement offered, has parallels in several others which suggest that he shared the reservations felt throughout landowning society against anyone losing his or her property as a result of a failure to appear in court. Thus when in 1211 Gilbert FitzReinfred and his wife sued Henry of Dean for land at Dean, Cumberland, and a grand assize was summoned coram rege at Knaresborough, Henry’s failure to appear was not held against him, for he was later able to ask the king himself to warrant his claim that the proceedings had originally been arranged to take place at Whitchurch, and this John did, encouraged, perhaps, by a proffer of ten marks for his warranty (the money was paid a year later). The case was therefore ordered to continue.82 A year later a Somerset case, seemingly brought to an end by the failure to attend of the defendant, Alfred de Bendeville, was re-opened after Alfred had successfully pleaded that his absence was due to there having been no justices present in the coram rege court on the prescribed date. He proffered (and probably paid within a year) two palfreys so that an assize of mort d’ancestor could be re-summoned, and proceedings ended in a settlement in the Bench.83

Perhaps ten marks (the value of two palfreys) was the usual rate for a favour of this kind, but the sum demanded could be higher, sometimes substantially so. In 1205 Geoffrey de Ambli proffered £20 `for having the king’s grace and seisin of his land of which he was disseised by order of the king’s justices’. Lord of Takeley, Essex, he had been sued two years earlier by Petronella de Tresgoz for land in Frinton in the same county, and had responded by making every effort to avoid appearing in court, not least by taking refuge in the liberty of Bury St Edmund’s where no royal sheriff had authority. In the end, it would seem, the king’s justices ruled against him on the grounds of his continuous defaults, a decision which he now paid to have reversed (he had cleared his debt by Michaelmas 1207).84  Geoffrey was probably fortunate to be reinstated, whereas Ralph de la Bruewere, who proffered £40 and a palfrey in the same year `for the king to save him from losing the land which Gilbert de Gant claims against him’, appears to have had much better grounds for having his case reconsidered, since his default had been due to his having been given the wrong day for his next appearance in court when earlier proceedings, over property in Lincolnshire, were adjourned. The rolls of the justices were examined, and in two of them the relevant date was recorded as the quindene of Hilary, but in the rest as three weeks after Hilary. The discrepancy resulted in proceedings being allowed to continue; the outcome of the case is unknown, but as Ralph cleared his debt in 1212 it is unlikely to have been entirely unfavourable to him.85

Although John was usually on bad terms with Gilbert de Gant, he can hardly be said to have acted wrongly in permitting an investigation of Ralph’s claim, or in allowing the lawsuit to proceed afterwards, though he could plausibly be criticised for asking, or accepting, so much. The same could perhaps be said of his conduct with regard to the extended litigation which ruined the Lancashire family of Bussel, with the loss of its barony of Penwortham. This seemed to have come to an end in Hilary term 1201 when Hugh Bussel defaulted in an action brought against him by his cousin Robert, and was adjudged to have lost completely (omnino). Nevertheless in the following year he was allowed (or perhaps compelled, since the sum was entered on the pipe roll as an amercement, not a fine) to proffer 400 marks (£266. 13s. 4d.) for the king’s warrant for his default, and to be put back in possession of Penwortham – presumably he claimed to have been unable to appear in court because he was in the king’s service at the time. The proffer was beyond his means to pay, as John probably knew it would be, there is no record of further litigation, and Hugh Bussel finally lost the barony.86 But it was probably thought important that he should be given every opportunity to retain it, and to that extent the king’s action (if not his exorbitant demand) could be regarded as justifiable.

 

Royal restraint

John did not always intervene when invited to do so, or take the money offered him as an inducement.. In 1201 Earl Patrick of Dunbar, an important Anglo-Scottish magnate, proffered forty marks and four palfreys for `a recognition of mort d’ancestor’ coram rege concerning three Northumberland townships which he claimed against St Albans Abbey and its daughter-house of Tynemouth. When the case came into court, however, in Easter term 1201, the monks argued that no jury should be summoned, as this would be contrary to the law of the realm (assisa regni), and when Patrick offered no plea in response, but asked for the king’s order on the case, they followed up by asserting that Edgar, as whose heir his great-nephew Patrick claimed the townships, did in fact have a living son, and that nobody else could claim them. Proceedings were adjourned and not resumed, but in 1205 John pardoned the earl his proffer, on the grounds that the recognition could not be taken according to the custom of the kingdom.87 Perhaps Patrick had hoped that John could be induced to use his prerogative for his benefit and ignore the procedural difficulties which otherwise barred his claim, but the king declined to act thus. It is possible, indeed, that John was influenced by the proffer which the monks made, also in 1201, of 200 marks (133. 6s. 8d.) and two palfreys for, among other things, a confirmation of Henry II’s grant of the townships, and of Richard I’s confirmation of it (the money was paid within two years, the palfreys, or their value, were handed over in 1208).88 But since the monks did not refer to this in their pleading, it may have constituted their response to the earl’s suit after the adjournment, and thus been made too late to affect proceedings before the king, whose charter confirming Tynemouth in the townships was not granted until February 1204.89 In his conduct of the case, and also in his remission of the earl’s proffer, John appears to have acted entirely correctly.

Later cases show John acting with no less propriety. He refused to accept the proffer for an inquest made in 1211 by Peter FitzHerbert in an action against the abbot of Westminster, though he gave order that the inquest be held;90 he may have wished to confer a modest benefit on one of his own henchmen, but without wishing to compromise the rights of the abbot (the case ended with a settlement). In the following year he adjourned a Nottinghamshire land action after both parties produced documentary evidence in support of their claims, since he wished for `more substantial testimony and greater certainty’ (vult quod adhuc majus fiat testimonium et major fiat certitudo),91 and he also received competing bids for intervention in a lawsuit between Simon of Kyme and Robert FitzAmaury, and accepted the lower one, which was Robert’s (and which does not in fact seem to have been paid), for allowing proceedings to continue. He may have acted thus to spite Simon, a former royal servant who was now out of favour, but he seemingly made no effort to manipulate the outcome of the case, which was still in progress two years later.92 A like uncertainty attaches to John’s acceptance in 1207 of the proffer of three palfreys (£10) from Henry FitzGerold for deferring proceedings in his lawsuit against William de Alneto over the manors of Mundford (Norfolk) and Cerney Wick (Gloucs.), to allow time for the production of a record of earlier proceedings in the honour court of Wallingford which Henry claimed would support his case. Henry’s brother Warin was a royal chamberlain and familiaris who stood by John until the summer of 1216, but Henry himself was a household knight of William Marshal, whose relations with the king were far from good in 1207. Perhaps the one consideration neutralised the other. The sum offered was modest, after all, and the adjournment appears to have been reasonable (Henry cleared his debt within a year, and the action was concluded by a settlement two or three years later).93

 

Complicating factors

Assessing the quality of King John’s justice is made still more difficult by the fact that litigants who to outward appearances paid for preferential treatment in the king’s court did not in fact always receive it. The proffer of forty marks which Herbert de Bolebec, a minor Buckinghamshire tenant-in-chief, made in 1200 `for having right concerning the fee of nine and a quarter knights against William de Turevill’ did Herbert no good, for when the case came into the Bench the earl of Leicester successfully claimed jurisdiction over it, whereupon it disappeared from the records.94 The more overt bid for royal support made in 1208 by Maurice de Gant, an important landowner in Yorkshire and Lincolnshire, who proffered 100 marks `for having several precipes and that the lord King may help him to have his rights ...’, led to a good deal of litigation, but without conspicuous success on Maurice’s part; in 1211, for instance, he lost an action over a knight’s fee in Swinstead, Lincolnshire (this may explain why he is not recorded as paying any of his proffer).95

Some payments had no result at all. This might be because competing payments effectively cancelled each other out. When in 1209 Gilbert the Englishman proffered ten marks for hastening judgment in his action against Ralph de Furnell over land at Farnham and Bollington, Essex, for which the grand assize had been summoned, while his opponent proffered 20s. for summoning the necessary jurors, it is difficult to avoid the conclusion that they were paying for the same thing – to no avail, as it turned out, because the jurors declared themselves unable to say which of the parties had the greater right. Nonetheless, each man paid what he had promised.96 And sometimes a litigant paid for a service which he never received. During coram rege proceedings at York in 1208 one John of Drewton, a Yorkshire knight who had been appealed by Reiner of Garton of assault and wounding, responded indignantly by claiming that he had already been prosecuted in similar terms, and that `he gave 40 shillings to have a verdict and he still seeks that verdict ...’. John is on record as having paid the money, `for having an inquest’, in 1205-6, and had thus been waiting for his verdict for at least three years.97

The fact that an action or decision of King John’s is capable of being seen in more than one light does not, of course, mean that a favourable construction should therefore be automatically placed upon it, only that there are borderline cases which need to be approached with caution and discrimination. One such may be illustrated by the proffer which Gilbert de la Dune made in 1200 for an inquest into whether Gilbert Oin, whose heir he was, had been unlawfully disseised of three hides of land at Exton in Hampshire, offering to give twenty marks if the inquest found in his favour and ten even if it did not. But although John appears to have accepted the proffer at first, he then ordered that no action should be taken upon it, because he had instead accepted a fine, recorded as consisting of thirty marks and a palfrey, made by Robert of Warnford.98 This was not a simple case of John accepting the higher of two bids, however, because Robert, a royal servant, already had a charter for the property from Richard I, one, moreover, which John himself confirmed early in 1201.99 Ralph’s proffer did indeed cut across the legal proceedings which Gilbert had tried to pay for, but it did nothing to prevent their taking place in future, since Ralph undertook to stand to right if he was sued. Which, indeed, may well have been what happened, since in 1203 Gilbert paid fifty marks `for having seisin of three hides of land in Exton, as an inquest held by the king into this attests.’100 It is certainly possible that John changed his mind again under the influence of a higher bid. But although his accepting Robert’s proffer gave the latter the advantage of having seisin of the disputed property, his doing so did not otherwise compromise anybody’s legal rights, and did not ultimately prevent Gilbert from prevailing.

Other kinds of complication appear in other cases. In 1204 Alexander de Brumton and his wife Agnes proffered £10 for the land at Hemmingstone, Suffolk, of Geoffrey FitzHerbert. Agnes claimed to be Geoffrey’s heir as his oldest sister, and the fine was specifically made to bar the right of any of his other sisters.101 The proffer was accepted and the money slowly paid, a consideration which did not prevent Agnes’s sister Matilda, with her husband Alexander son of Estrilda, from suing for a share in Geoffrey’s inheritance in 1206.102 Alexander and Agnes argued on the basis of their fine of 1204 that they should not be required to answer, but the case was remanded for discussion, and it would appear that the other siblings were in the end permitted to claim their shares, since in 1215 a third sister, Isabella, successfully sued Alexander and Agnes for six acres of arable land, part of a larger portion allotted to her in a settlement made in the royal courts.103 The justification for keeping the lands undivided had been that they supported a serjeanty, but the service demanded of its holder was hardly of the first importance, consisting as it did of a `fantastic foolery’, a display of athletic flatulence which its holder was called upon to provide every Christmas.104 Such an exhibition may indeed have appealed to King John’s probably rather crude sense of humour, but it hardly warranted denying the younger sisters a share in Geoffrey’s inheritance. The decision which thus seems to have been taken to overturn the fine of 1204 was not unreasonable, still less inequitable, but it is noteworthy that Alexander and Agnes did not recover their outlay, though their son Edmund was later recorded as holding the serjeanty.105

 

Leaning to one side?

Other cases, however, seem to show John straightforwardly acting to use his authority in such a way as to bring advantage to a litigant. He was not always on easy terms with his first chancellor, Archbishop Hubert Walter, and this may have contributed to his acceptance in 1200 of a proffer of twenty marks and a palfrey from Philip of Burnham to be put back in possession of lands in Felsted, Essex, of which he had been disseised. Subsequent proceedings showed that behind this was a dispute between Philip and the archbishop over a wardship, which was ended in 1201 by a quitclaim by Hubert to Philip, whose proffer would thus seem to have been designed to induce the king to intervene against his own chancellor, who was a great collector of wardships. The fact that John pardoned Philip his debt may point in the same direction.106 This does not necessarily mean, of course, that justice was not done, only that the king’s motives for doing it may have been mixed. Many proffers were made in order to bring lawsuits into the king’s courts, but one unusual case shows the Northumberland landowner Henry Bataille giving 100 marks and two palfreys to keep out of them, since in 1204 he paid for letters patent ordering that he was not to be impleaded outside his home county for any of his property there. Northumberland is a long way from Westminster, but it seems unlikely that Henry made a substantial payment simply to avoid the inconveniences of travel, and more probable that he faced the prospect of litigation which he hoped to conduct in favourable circumstances. Perhaps a long-standing connection with the Umfravilles, the lords of Redesdale, was one which he hoped to exploit on their, and his, home territory.107

An even larger proffer, of £100 and a Gascon palfrey, was made by Adam of Charing in 1205, `for having seisin of the manor of Charing of which Archbishop H[ubert] disseised him ...’. The king’s response showed that it was seisin alone, not right, which was at issue, for he ordered the keepers of the archbishopric, which had been vacant since 13 July that year, to put Adam in seisin, and then to investigate `diligently’ whether Hubert had in fact dispossessed him of that manor and of other properties as well.108 Adam’s family had long held Charing at farm from the archbishopric, paying a rent which probably looked unrealistically low by the end of the twelfth century,109 and Hubert may well have ejected him, or at any rate raised the farm to a sum which Adam was unwilling to pay. In the circumstances of 1205, when the archbishopric was vacant and therefore in the king’s hands, a direct approach to the ruler was probably Adam’s best recourse for obtaining restitution, but John’s response was arguably an irresponsible one, compromising the rights of the next archbishop when one should eventually be elected, and taking a large sum from Adam (whose debt had been cleared by Michaelmas 1207) for what might prove to be only a temporary reinstatement at Charing – as, in fact, it probably did, since Stephen Langton later claimed and obtained the manor.110

The king could have responded that he was only taking what Adam was willing to pay, and that the proffer had been made in the knowledge that seisin might be lost. It was worth paying for because the man in possession enjoyed the protection which the law gave to the occupant of a free property, whether it was disputed or not, and placed the burden of proof upon his opponent. Hence, for instance, Robert de Chantemerle’s proffer in 1207 of £80 for land in Cambridgeshire, Huntingdonshire and Dorset, which he claimed as the heir of his uncle but which was in the occupation of others – the king’s order was specific that Robert was to be given seisin, and that the issue of right could be dealt with afterwards (postea inde rectum teneatur).111 Walter de Esseleg’ had acted similarly, and no doubt with the same considerations in mind, when in 1202 he proffered, and eventually paid, £40 to stop the assize of mort d’ancestor which Ralph de St Clare had brought against him for lands in North Petherton and elsewhere in Somerset, and to impose the condition that if Ralph wished to sue in future, he could do so only through a writ of right.112

 

Negotiating settlements

The king’s intervention was not always sought, or used, in order to force an outright victory in a lawsuit. It was several times brought to bear to persuade litigants to settle, or perhaps to help negotiate a settlement more favourable to a protagonist than the one which he or she might otherwise have secured. The dispute over services between Oliver de Tracy, lord of half the lordship of Barnstaple, and William de Champeaux over services demanded by the former from the latter, began in Devon but was transferred to London following a payment by William, and continued for four years before modest payments to the king by both parties (6s. 8d. and one mark respectively) resulted in their being licensed to settle in 1205.113 In 1206 Amaury Bataille proffered £20 for a writ of mort d’ancestor against the abbot of Saint-Valéry-sur-Somme for a carucate of land in Bradwell, Essex. The action was to have been heard before the justiciar, but the abbot proffered three barrels of Auxerre wine to have it heard coram rege, as it seems eventually to have been, though not until Michaelmas 1207, when Amaury gave one mark for licence to concord. He did not obtain all he sought (which may explain why he was allowed to pay only eight marks of his first proffer, while his second was not entered on the pipe roll at all), but the fine was not ungenerous, in that the abbot granted him a virgate of land (a quarter of a carucate) and a marsh, together with eighty sheep and twenty marks in cash.114 Whether or not the king was personally involved in negotiating this settlement, his court was clearly a venue where such agreements could be worked out in definitive terms.

Achieving a settlement could call for political sensitivity as well as legal expertise. In 1201 Simon d’Avranches, as lord of the barony of Folkestone a powerful man in Kent, proffered 100 marks and a palfrey for right against Baldwin, count of Guînes, over the Kentish manor of Newington by Hythe. Proceedings had begun in Michaelmas term 1200, when successive adjournments were allowed so that the parties could negotiate a settlement. It proved hard to bring discussions to a satisfactory conclusion, however, and meanwhile the motions of litigation continued to be gone through. The details of these suggest that Simon (who had paid all but the palfrey within a year) wanted to prosecute his case, while the count hoped to settle. But since yet more adjournments went on being permitted by the court coram rege, it would seem that Baldwin had the backing of the court, and by implication, of the king – something also suggested by the conclusion to the case, a settlement reached in Hilary term 1202 which involved a division of the manor into two equal shares.115 The reason for John’s even-handedness in this instance probably lay in Baldwin’s political and military importance. The holder of one of the principal lordships in Artois on the northern flank of Normandy, he had been detached from his alliance with the king of France by Richard I in 1198,116 and John needed to retain his support. It was probably by such means that he appears to have been successful in doing so.

Similar considerations probably affected the conduct of a later lawsuit, initiated by Engelger de Bohun in Trinity term 1212 with the substantial proffer of 100 marks for an assize of mort d’ancestor against Thomas de Ardern for a knight’s fee in Ford, Sussex. Proceedings began soon afterwards, but were quickly halted when Thomas claimed that an earlier plea by his father Ralph, claiming lands in both England and Normandy, had led to a settlement being made in a session of the king’s court at Vaudreuil on 7 April 1199, in which Engelger quitclaimed Ford, and several other English properties, to Ralph. Thomas now showed the cirograph recording this to the court. Although Engelger denied ever having held the disputed land, and disputed the authenticity of the cirograph, he probably felt under pressure, for he proffered a further fifty marks for license to concord. This was accepted (though half it was later pardoned, as was the whole of his initial proffer), and the eventual outcome can be regarded as favourable to him, since although he had to surrender land in Lavant and Preston to Thomas, and to pay him £40, he retained Ford itself.117 The strength of Thomas’s case is hard to assess. His father had been an agent of Hubert Walter, who made him a substantial figure in Sussex by giving him the marriage of a well-endowed widow.118 But Hubert, who had witnessed the cirograph of 1199, was dead by 1212 (as, indeed, was Ralph, whose death may have been a recent event in that year), while Engelger was an Anglo-Norman lord who had remained loyal to John after the loss of Normandy,119 and as such was another man whose loyalty the king could not afford to lose if he was to have any hope of recovering the duchy. The remission of most of his proffers, and the largely advantageous resolution to the lawsuit which he obtained, suggest that the need for his support at a critical time had outweighed the claims of his opponent, whose father may in any case have been regarded as little better than a carpet-bagger.

 

Sales of justice

When all allowances have been made, there seems to be no doubt that King John could and did on occasions sell justice. In 1207, for instance, he accepted Henry de Longchamp’s proffer of three palfreys for putting a stop to the action of dower brought against him for land in Herefordshire by Henry de Mara and his wife Petronella, and instructed his justices accordingly – the king’s writ stated unequivocally that `he does not wish that plea to be held’.120 It is possible to argue that this intervention was not as outrageous as it looks, and that John was doing little more than taking a modest payment (the equivalent of £15) for upholding his own charter of 1205, which granted Wilton Castle and other Herefordshire properties to Longchamp, with the rider that he was not to be impleaded for any of them except by writ of right.121 But the admittedly brief records concerning the lawsuit make no reference to any charter, and to outward appearances this was precisely the kind of arbitrary action, barring a woman’s claim to dower in return for payment, which Clause 40 was intended to prevent.

Many other actions illustrate the opportunities for financial advantage which the king’s judicial superiority gave him. In 1201 William of Ford, apparently a subtenant of the Northumberland barony of Wooler, proffered 100 marks to have the king’s request (pro habenda prece domini Regis) to Earl Patrick of Dunbar, that he should allow William to have land of which his father had died seised, the money to be payable only if the earl obliged.122 In 1187 Robert of Ford, presumably William’s father, had proffered forty marks (and paid the money within two years) `for having the land of Derecestr’ of which Earl Patrick has deprived him’.123 In all probability this was the estate now at issue, one which Earl Patrick had taken back but to which William claimed to be his father’s successor. The sheriff of Northumberland passed on the king’s appeal to the earl in 1201, but although he subsequently reported that Patrick had not given up the land,124 William still had to pay twenty marks to be cleared of his initial proffer, despite its failure to achieve anything – his debt was paid off at Michaelmas 1203.125

There may have been mitigating features in the case of Robert of Rushock and his wife Alice, when they were appealed of homicide, probably in 1203, which helped to persuade John that they should be allowed to enter religion before their case came to trial. But it seems likely that the principal consideration was the 100 marks offered by William de Briouze, who seems to have had a claim upon property at Rushock – Robert died as a monk at Worcester, but his widow later returned to the world, and Briouze’s son Reginald was in a position to give her the dower at Rushock for which she sued at the 1221 Worcestershire eyre.126 In 1212 one Baro the clerk of Northampton, who was twice recorded as styling himself `serjeant of the lord king’, appealed three men of assault and imprisonment, and thus of a breach of the king’s peace which may even have taken place in court – Baro claimed to have been `in the king’s peace for the king’s pleas ...’. John accepted proffers of 40s. from each side for an inquest, and then gave the appellees licence to settle with Baro in return for 300 marks and three good palfreys, payable (to himself, not Baro) in equal shares.127 The fact that the proffer was probably more than they could afford to pay (one of them cleared his debt in 1230, the others were then still some way from following suit)128 only underlines the leading role which John was apt to give to the pursuit of money in his administration of justice.

A case from Suffolk illustrates John’s opportunities for taking money at both the beginning and the end of a single lawsuit, one interesting not least in involving relatively humble people. In Hilary term 1208 Robert (whose name is also, confusingly, sometimes entered as Ralph) the son of Eustace the park-keeper proffered £5 for having his father’s land, which supported a serjeanty of making summonses (a tenure which placed its holders in a direct relation with the king, though in this case it must have been a remote one), and for the chattels which Roger FitzOsbert had taken there.129 In an action heard before the king in the following Trinity term, Robert then complained that following Eustace’s death Roger had intruded himself into the serjeanty, which was apparently at Laxfield, and had taken livestock and crops which he listed in detail. Roger, however, claimed that he had been granted the land, and the chattels with it, by successive holders of the honour of Eye (it had escheated to the crown in 1159, and had a number of temporary lords thereafter), of which Laxfield formed part, and that he had received custody of the serjeanty on the order of the king, whom he vouched to warranty, adding that if the king would not warrant him then he would put himself on a jury of neighbours as to which chattels he had received.

John does indeed appear to have declined to warrant Roger, for the case was adjourned for hearing before justices, unidentified but probably those who held an eyre in Suffolk in the late spring of 1209.130 These may have found against Roger, or perhaps Robert’s initial proffer settled the matter, for later that year the latter was recorded as owing the king half the goods (again defined in terms of livestock and crops) and money he had claimed, in return for the king’s distraining Roger to pay them – he cleared his debt in 1210).131 John was in effect acting as debt-collector for one of his subjects, and pocketing half the proceeds. Such an arrangement was not uncommon, but the rate was markedly higher than usual – a quarter or a third is recorded in similar cases.132

 

Favours for money

Throughout his reign John appears to have been willing to exploit his position to raise money, in ways and to ends which affected the ability of his subjects to claim or safeguard rights or possessions. He showed no obvious qualms, for instance, about accepting 100 marks in 1201 (a proffer itself comprehended immediately afterwards in one of £100)133 for repealing his own confirmation, issued on 25 August 1199, of a former abbot of Whitby’s charter which `with the assent of my whole chapter’ had granted liberties to the burgesses of Whitby (who had themselves proffered eighty marks for this).134 The cancellation was issued on 13 January 1201, and not only brought litigation between the abbot and the burgesses to an end, but thereafter constituted a bar to any future attempts by the burgesses to obtain the rights granted them in the charter.135 The sums involved in such cases were not necessarily large. Hugh de Scalers had been litigating against his cousin William de Scalers over lands in the Cambridgeshire barony of Caxton since at least the beginning of John’s reign, with regular delays and adjournments which seem to have been mostly his own responsibility, until in 1207 Hugh proffered and paid twenty marks to have the issue of right settled by the grand assize, which then found in his favour.136 Having spun proceedings out, he was able to have them brought to a speedy conclusion at his own convenience through a payment to the king.

In other cases a modest sum was all that was needed to bring litigation to a standstill, as when two good palfreys, valued at £10, proffered in 1209 and paid within two years, sufficed to enable Basilia de Furnival to bring to an end Ralph d’Angerville’s suit against her over a knight’s fee in Sproughton, Suffolk.137 When John of Radborough and William the franklin sued Geoffrey of Longhope and his wife for land in Longhope, Gloucestershire, in 1206, the king simply ordered his justices not to hear the case – he had given the defendants the land, warranted it to them (something he was under no obligation to do), and wished them to hold it in peace for as long as he lived.138 Whatever his motives in this case, they were probably more creditable than his actions in 1210, when the Cistercian abbots met King John at York and refused his demand for money. Already at loggerheads with the church over the disputed election to Canterbury which had led to England being placed under an interdict, and then to his own excommunication, and enraged now by being thus baulked financially, John reportedly announced that all the royal charters granted to the order were to be treated as worthless, licensed his subjects to harass the white monks with impunity, and sent orders to all his sheriffs, justices and foresters `that none of them should provide them with any right or justice ...’.139 How far this withdrawal of legal rights extended is unclear, but in the same year Roger de Lacy proffered two good palfreys on behalf of the abbot of Stanlow, a Cistercian house in Cheshire, `that he may have all his possessions (omnia sua) in peace’ (the debt was quickly paid).140

It may be added that although John could hardly be blamed if his favour was misused, it was still bound to reflect badly on his exercise of his judicial authority if it was exploited dishonestly by the man or woman to whom he, in effect, sold it. Gilbert of Norfolk lied in court. William of Cheriton, who in 1206 proffered 300 marks, two palfreys and two hawks to have `all the land formerly Geoffrey de Bosco’s at Delce [in Rochester, Kent] as his right ...’, along with two precipes against Ansell Biset for lands in Buckinghamshire and Kent, and paid what he owed over a total of eighteen years,141 appears to have used his proffer as the basis for much wider claims. For when he sued against Ansell in the following year, on the basis of his descent from one William son of Helte, his uncle, he responded to Ansell’s defence with the claim that `the lord king gave to him, as to the rightful heir, the right which was William Helte’s for 300 silver marks ...’.142 As recorded, John’s grant had done no such thing, and in the end William of Cheriton seems to have obtained only what he claimed in his proffer. Geoffrey de Bosco was a Norman who forfeited in 1204 and his lands were at the king’s disposal, a fact which enabled William to establish a lawful right in Delce.143 But his claims elsewhere were largely unsuccessful, in that he could only confirm his overlordship of the estates held by Biset, whose descendants therefore remained in occupation of them.144 That William obtained less than he had paid for did not, however, prevent King John, and later Henry III, from receiving the money he had offered.

 

Law and politics (1): King John and Robert FitzWalter

(a) Hertford Castle

It hardly needs saying that money was not all that could be at issue in King John’s interventions in the lawsuits of his subjects, for there were political factors to be considered as well as, or along with, purely financial ones. There are indeed constant difficulties in distinguishing between the king’s need for money and his pursuit of political advantage, and the desire of his subjects to have the authority of royal power behind them in their quest for justice – something which, of course, could be no more than a synonym for personal gain. But the resulting ambiguities are not only historiographical, they were built into the office of kingship and into the forces which that office aimed to control. Justice, for the king, was not only a quality of righteousness which was inherent in his office, it was also a means of political control, a profitable source of revenue, and a tool of patronage. For those who litigated in his courts, justice was similarly no abstract entity, but a way of obtaining rights and desserts which only injustice could deny them. In fact, the possibility that his judgment might be contaminated by political, financial or even personal considerations was probably one which no early-thirteenth-century king would have troubled to deny. But the extent to which such considerations actually did move King John’s actions and judgments in his conduct of legal affairs is not always easy to determine.

The way in which personalities and politics might affect the king’s judicial conduct, and also the problems which his authority in such matters might bring with it, can be seen in three cases involving the same man, Robert FitzWalter, two of which were reported in varying degrees of detail not only in contemporary financial and legal records but also in the chronicles of St Albans Abbey, composed by Matthew Paris. Lord of Dunmow, Essex, and of Baynard’s Castle in London, Robert was one of the greatest English barons.145 His relations with King John later became bitterly hostile, and were probably never better than outwardly correct. His marriage to Gunnora, daughter and heir of Robert de Valoynes, brought him the Hertfordshire barony of Benington, and with it a claim to the custody of Hertford Castle, which he clearly regarded as appurtenant to the barony and for which he sued no later than Hilary term 1200.146 He was given a day to attend in the quindene of Easter, when an inquest into the custody was due to be held, but when he did so it was to learn that John had granted the castle instead to Richard de Muntfichet, another Essex baron, in return for a proffer of £100. FitzWalter’s resigned exasperation (along with something of the evidence he had hoped to present in support of his claim) can be deduced from the recorded response of his attorney, who told the court that `his lord does not wish to prosecute the assize which he had brought touching the custody of the castle of Hertford in accordance with his charters which he has therein, and therefore the assize withdraws without day.’147

Muntfichet became sheriff of Essex and Hertfordshire in 1201, when his having control of Hertford Castle would have made administrative sense, but he only paid £25 towards his debt, because John then changed his mind, and on 8 August 1202 granted the castle to FitzWalter after all.148 He may have acted thus in response to Muntfichet’s probably declining health (he died in 1204), or because he needed FitzWalter’s support in Normandy, where he was appointed to the joint command of Vaudreuil Castle in the following spring (a responsibility which he discharged with a conspicuous lack of success).149 But despite FitzWalter’s failure at Vaudreuil, he retained Hertford for several years, receiving £11 per annum to support his custody, until around midsummer 1209, when for no recorded reason the castle was transferred to John FitzHugh.150 Robert clearly resented the loss, and when during the civil wars French and baronial forces captured Hertford Castle, he was quick to claim it as his ancient right – Prince Louis was no less prompt to hand it over, according to the `Anonymous of Béthune’,151 but deferred doing so, according to Roger of Wendover.152

 

(b) Northaw wood

John’s conduct of proceedings over Hertford Castle was of a piece throughout, above all in demonstrating his capriciousness. He ordered an inquest into FitzWalter’s rights, but after making it pointless entrusted the castle to him all the same, before later taking it away from him again. His involvement in the second case is of a piece with the first. In Trinity term 1200 FitzWalter, acting in the right of his wife, sued against St Albans for a wood at Northaw, several miles south-east of the abbey.153 John was in France by this time, but the abbot had taken appropriate precautions, for he had obtained, and now presented, a royal writ given at Porchester no later than 28 April, immediately before the king sailed for France, which with unusual precision forbade the justiciar to allow the abbot `to answer to anyone for his tenement which he held when we crossed the sea for the second time after we were crowned king, unless before us when we shall have come into England’.154 But FitzWalter countered with another writ, given at Bishop’s Waltham on 24 April, which commanded that his plea against the abbot should proceed, `and that it is not to be stayed for any writ which the abbot of St Albans may bring’. This clash of incontrovertible authorities understandably baffled the court, and proceedings were deferred until after midsummer, so that the king’s will could be ascertained and the relative validity of the writs investigated.

It seems hardly possible that when he granted protection to St Albans John did not know, or had forgotten, the writ he had given to FitzWalter only a few days previously, which as cited was specifically intended for use against St Albans, and much more likely that he was influenced by the abbot’s proffer, made in 1200 and otherwise undated, but surely from around this time, of 310 marks (£206. 13s. 4d. – the money was paid by Michaelmas 1205) for privileges which included protection against pleading except before the king.155 His need for money, amid the confusion attendant upon embarkation, offers one explanation for his conduct, sheer irresponsibility provides another. John does appear to have acted more carefully upon his return from France, however, for the case was ended by a settlement concluded in November 1200, in which FitzWalter abandoned his claim to the wood, and in exchange received all the abbey’s land at Biscott, near Luton, together with £80.156

Matthew Paris, probably writing in the 1240s, regarded Abbot John de Cella as having acted `prudently’ in negotiating this agreement, which he presumably regarded as reasonable – such was his hostility to the crown in general, and to King John in particular, that he was unlikely to have held back from criticism had he thought otherwise. In fact his account of the case said nothing about the involvement of the king, and, indeed, made only passing reference to litigation.157 In his eyes the powerful FitzWalter, a man `with whom scarcely any earl in England could compare’, was little better than a monster of covetousness, who plotted the murder of the abbey’s lawyer and fortified his spurious claims with a charter forged by a corrupt St Albans monk, persecuting the monastery until the horrible death of his ally, exiled to Tynemouth where he drowned in the monastic latrine, brought him to a degree of repentance. King John probably liked FitzWalter as little as the chronicler did, and may have privileged St Albans for that reason, as well as for money. What his handling of the case conveys above all is his inconsistency, verging on recklessness, in granting conflicting privileges to litigants in the same lawsuit. Its ultimate settlement may indeed have been equitable, but before it was made John had needlessly risked antagonising a leading figure among the baronage, just the sort of powerful and influential man whose loyalty he needed to retain.

 

(c) Binham Priory

Robert FitzWalter was presented by Matthew Paris in an equally unfriendly light in the third case, concerning St Albans’ daughter-house of Binham, Norfolk, but here John was represented as playing a much more active role.158 Robert FitzWalter’s marriage had made him patron of Binham, which was founded by his wife’s ancestor Peter de Valoynes in around 1100.159 Robert was not in fact a generous patron, making only one recorded benefaction, a pension from Bacton church which later gave rise to much litigation, and in granting this he was careful to reserve his own right to present to the church in future160 (Bacton may have been the church over whose advowson FitzWalter was recorded as suing the prior of Binham in 1198).161 This concern with his rights inevitably meant that when Abbot John of St Albans removed Prior Thomas from his office at Binham, probably in 1210, his action gave grave offence to FitzWalter, who was also a friend of Thomas’s, and was in the habit of referring to him as `his’ prior. According to Paris, he obtained a forged charter declaring that the abbot of St Albans was not to depose the prior of Binham without consulting the patron or obtaining his consent, and then proceeded to lay the priory under siege in order to force the monks to expel their new prior, cutting off their supplies of food and drink and threatening to castrate them if they did not submit. All this was reported to King John, who so hated FitzWalter that he was pleased to have grounds for taking action against him, and sent a force to break up the siege, but a friend at court managed to warn FitzWalter and his men, who fled before the king’s men arrived.

The disappearance of the close and patent rolls from this time means that there is no direct evidence for John’s response to the siege of Binham, but the surviving court records shed valuable light on the case. Although each party to the dispute appears to have sued against the other, it was FitzWalter’s action which was heard in the court coram rege a month after Michaelmas 1210, where he proceeded by plaint against the abbot, complaining that the latter, in breach of a charter which Robert had from the abbey, had conducted a visitation of Binham with an inordinate number of horses and men, had installed too many monks, and had tallaged the priory’s men, taking much money from them. He had also, when Robert was in Ireland during that summer, removed the prior, who had been appointed with his assent and good will, `contrary to the sense [tenorem] of that charter ...’.162 Despite FitzWalter’s description of the charter as `from the abbacy [de abbacia] of St Albans’, it was probably Binham’s foundation charter, given by Peter de Valoynes, and the abbot responded appropriately to FitzWalter’s plea by objecting that Peter’s heirs ought to have been present in court, an argument which secured him an adjournment until late November, and presumably further respites after that, since the action was still in progress a year later.

The king may not have presided when FitzWalter began his suit, but he probably did so when proceedings resumed in November 1211.163 Again FitzWalter sued by plaint, this time in company with his wife, showing that the abbot’s response had been heeded. The court roll is damaged, but still shows the plaintiffs complaining that the abbot had gone to `their priory of Binham, which their ancestors founded, and removed their prior ...’ (the repeated use of the possessive pronoun is noteworthy), and had done so, moreover, when Robert was in the king’s service in Ireland.164 The abbot denied the charge, and said that FitzWalter and his wife had intruded themselves into the priory, disseising the abbot of it and taking his chattels, and although the abbot’s own complaint had resulted in his recovering seisin `by order of the king and by the decision of the priory court’, his chattels, valued at thirty-four marks, had not been returned to him. And he asked whether he should reply to FitzWalter until he had obtained the full seisin implicit in possession of the chattels as well as the priory. Objections raised by FitzWalter’s attorney were overruled, and order was given for an inquest into the damages sustained by the abbot. Later adjournments prolonged the case until at least June 1212,165 but no inquest appears to have been held before Fitzwalter’s involvement in the conspiracy against the king’s life in August that year resulted in his flight to France and subsequent outlawry.

If the abbot’s reference to his having earlier sued per querelam is to be understood literally, then both parties proceeded by plaint, which was unusual but perhaps unavoidable in this case, when there may not have been a suitable writ available – the early thirteenth century was `a time of doubt and controversy’ where the legal rights of patrons over monastic dependencies were concerned.166 John’s willingness to hear the action could thus have signalled his readiness to do justice despite procedural obstacles. It is possible that he offered the parties an opportunity to settle, as he did in 1200, and that this was refused, but neither Matthew Paris nor the court records suggest this. He is not recorded as taking money from either litigant, however, while Matthew Paris’s account of the king’s angry threats, and of his dispatch of forces to dislodge FitzWalter’s men from the priory, is probably exaggerated, at the very least. The court clearly found against FitzWalter, ruling that he was indeed violently and unwarrantedly high-handed in his dealings with Binham and condemning him to pay damages, while his conduct probably appeared all the more objectionable because in fact he had no special rights in the appointment of that house’s prior – Binham’s foundation charter, which subjected the priory to St Albans and which could have supported FitzWalter’s other complaints against the abbot, made no reference to this one, as John, who read documents with great care when it suited him, may have enjoyed pointing out.167 All the evidence suggests, in fact, that FitzWalter was rightly convicted of wrongdoing, and that John’s conduct of the case had been entirely correct.

That is not to say that it was unproblematic. Matthew Paris may well have been right to suggest that John was glad of the opportunity which the dispute gave him to discipline a potential, if not yet actual, adversary (his loss of Hertford Castle in 1209 could have shown FitzWalter which way the wind was blowing), the more so when it was that adversary’s own determination to sue which brought him into court. But he may not have been well-advised to allow FitzWalter to become the agent of his own comprehensive defeat, even though he had no obvious way of preventing this. In many ways John was in a cleft stick. To have refused to hear the case would have left him open to the charge of denying justice to men demanding it. Hearing it, and therefore presiding over a lawsuit which to all outward appearances ended (in so far as it did) with justice being done, exposed him to the further enmity of a powerful man whose determination to prevail had led him into violence and (if Matthew Paris is to be believed) the forging of charters, and was therefore unlikely to regard his failure in the courts as other than the result of favouritism, if not outright corruption.

In such circumstances John was always likely to suffer from his inability to distance himself from the workings of any court which operated in his name, if, indeed, he tried to do so. In the context of the Binham case, if there is any truth in Paris’s account of the king’s wrath against FitzWalter, and of his sending his knights post-haste to end the siege of the priory, it suggests that even when he was keeping the peace or enforcing the judgment of his court, John might well make no effort to avoid appearing partisan, even though the circumstances could easily have enabled him to do so. Such conduct helps to explain the dubious reputation which John acquired through his handling of legal issues generally, one to which Clause 40 bore witness. He was capable of judicial even-handedness, as the Binham dispute in fact showed, but he could not be relied upon for it, as he demonstrated in the two earlier cases involving Robert FitzWalter. The Binham case is unlikely to have been the only cause of FitzWalter’s alienation from the king, but it must have contributed to it.168

 

Law and politics (2): The case of Fulk FitzWarin

John’s responses to other cases are highly likely to have worked to the same end.

Another notable example of the way in which financial and political considerations, perhaps reinforced by personal ones, might affect the way in which John conducted judicial proceedings, is provided by the well-known dispute between Fulk FitzWarin and his rivals over the Shropshire castle of Whittington, near Oswestry, which lay behind, and provided the background to, a celebrated romance which was probably first set down late in the reign of Henry III.169 Fulk (the third of that name) had inherited a claim to Whittington for which his father had proffered forty marks (£26. 13s. 4d.) in 1195.170 This sum was entered on the pipe roll, with a note that the castle `was adjudged to him in the king’s court’, but no payment was made, and in fact Whittington remained in the hands of Meurig of Powys, a Welsh landowner and soldier to whose father Henry II had granted it.171 Fulk the father died in 1197, however, and in 1200 the son tried again, this time proffering £100 for Whittington `as his right, as it was adjudged to him by the decision of the king’s court’. This, too, was entered on the pipe roll, but again nothing was paid, presumably because around the same time Meurig had proffered fifty marks (not £100, as the romance claimed) to be confirmed in Whittington, and John preferred to maintain the status quo there, and therefore to accept the lower bid.172 Meurig’s proffer joined Fulk’s on the pipe roll, and on 11 April 1200 the king issued a charter granting the confirmation Meurig sought.173

Meurig did not pay any of his debt, probably because he died soon afterwards, and this gave John the opportunity to raise the price of his support. On 1 August 1200 he confirmed Whittington (and Overton in the south of the county) to Meurig’s sons Wrennoc (elsewhere recorded as `Goronnus’, suggesting a name like Goronwy) and `Wennoneus’, and demanded £100 and four palfreys from them for doing so.174 The debt was entered under Wrennoc’s name on the 1203 pipe roll, with no less a figure than William de Briouze named as pledge for its payment, and in the following year £68 were paid.175 But Wrennoc gave no more, for in 1204 Fulk made yet another attempt, and proffer, to obtain the castle, this time of 200 marks (£133. 6s. 8d.) and two high-quality warhorses (dextrarios de pretio), and whether in response to the guerilla campaign which the romance describes him as carrying on against the king, or for reasons connected to royal policy towards north Wales, John accepted this third bid, and ordered the sheriff of Shropshire to deliver the long-sought-for castle to Fulk, `as his right and inheritance.’176 (Wrennoc was fobbed off with lands worth £8 in Worfield, on the other side of the county).177 Fulk’s two earlier proffers were still being entered on the pipe rolls, unpaid, and for several years this latest one, amalgamated with other debts, was treated in the same way. Only in 1210 did he begin to pay, and even then he gave just £4, followed by the same amount a year later.178  He came under little more pressure to pay his other debts, which were substantial, but in a development which was far from rare in John’s reign, his earlier grievances against the king outweighed the restraint which accompanied their resolution, and in 1215 he joined the rebellious barons. Fulk briefly entered into a truce with the king in 1216, but soon revolted again, and only returned to his allegiance late in 1217.179

The bids and counter-bids in the proceedings involving Fulk FitzWarin surely come close to the heart of Clause 40, illustrating the way in which considerations of political advantage, and perhaps also personal differences – if there is any truth in the story of a childhood squabble between Fulk and his future king which, as described by the romance, poisoned relations between them thereafter – could result in John manipulating, or simply intervening in, the administration of justice. Fulk’s proffer for Whittington in 1200, like his father’s earlier, was recorded as having been made to secure him in what was awarded to him by the decision of the king’s court, while that of 1204 was to obtain his right and inheritance. The later romance, too, presents its hero as being primarily moved by the pursuit of justice, and as rebuking King John precisely because `you fail me in my rights and the common law. Never was he a good king who, in his courts, denied the law to his free tenants ...’.180 Words set down under Henry III would have resonated no less during the reign of his father. When in 1209 the exchequer tried to regularise the payment of Fulk’s largest debts, the list of his pledges included two earls (Hereford and Salisbury) and a number of important men from the Welsh marches –William de Briouze and his eldest son,181 William Pantulf, Walter Clifford.182 Such men could reasonably have sympathised with Fulk and been alarmed, even antagonised, by the way he was treated, and by the impression of venality given by the proceedings which resulted from his efforts to gain control of Whittington. That Fulk was clearly expected to bid for justice from the king may well have counted for much more, and that to the king’s disadvantage, than the fact that none of his proffers was paid in full, and that most of them yielded nothing at all. 

 

Competing bids (1): Stuteville versus Mowbray

King John’s administration of justice could undeniably be impartial, honest and efficient, but it could never be entirely trusted to display these virtues, and as a case like that of Fulk FitzWarin demonstrates, it could also show a very different face to those who became involved in its workings. One reason for this was John’s willingness to take money from more than one party to a lawsuit. In the well-known case in which William de Stuteville sued against William de Mowbray for lands taken from his Yorkshire barony of Cottingham, each party made proffers over the re-opening of a dispute which was nearly a century old, one which arose from conflicting loyalties early in Henry I’s reign, and which had supposedly been settled by a treaty, negotiated some time before 1166, which gave William’s father Robert the manor of Kirkby Moorside, containing ten knights’ fees, in compensation for losses to Mowbray’s grandfather.183 That did not satisfy the Stutevilles, however, and in 1200 John in effect licensed William to renew his claims, with an action for the entire barony in return for a payment of 3000 marks (£2000), made, succinctly, `for having right’ (this payment covered several other matters as well).

As grounds for ignoring the earlier agreement Stuteville alleged that it had not been confirmed in the king’s court or under his seal (in curia regis et ejus munimine non fuerant confirmate). Whether this was true is uncertain. Baldwin Wake, whose family succeeded the Stutevilles at Cottingham in 1241, defended his liberties in the reign of Edward I by showing a charter which purportedly recorded the grant of Kirkby Moorside to Robert de Stuteville by Henry II.184 But the fact that this charter was presented as an outright grant rather than as the royal confirmation of an independent settlement, and that Edward I’s attorney, although he did not deny the charter’s authenticity, nonetheless made anachronistic claims for the restrictions which it placed on Robert’s ability to dispose of the manor (it had come into the hands of the Knights Templar), inevitably casts serious doubts on its authenticity. Whether it was confected, or merely enhanced, at a later date it is impossible to say.  

Even so, it seems unlikely that an agreement intended to end a long-lasting quarrel between two of Yorkshire’s leading baronial families had been reached without any royal involvement, and this may be reflected in Mowbray’s recorded response, a proffer of 2000 marks (£1333. 6s. 8d.) `to be dealt with justly and according to the custom of England’, which suggests that he was defending the action under protest. He is certainly unlikely to have thought afterwards that he was treated `justly’, for he suffered substantial losses. Not only was he required to pay the money promised to the king, thereby adding to his already considerable debts, but he also had to transfer a Warwickshire manor to Stuteville, along with a further nine Yorkshire fees to add to the ten conceded by his father. It may be that by 1200 the original settlement looked less than equitable, at any rate to Stuteville, though it seems just as likely that the latter was simply seeking to exploit the good will his services to successive kings had brought him since the early 1170s – he was certainly in favour with King John, who appointed him to several shrievalties, and who stayed with him at Cottingham immediately after the conclusion of his lawsuit against Mowbray.185 The latter, by contrast, enjoyed no such advantage, as a result of his father’s support in 1174 for the rebellion against Henry II and of his own reluctance to accept John’s accession twenty-five years later.186 Be that as it may, other tenants-in-chief must have been concerned that ancient disputes could be revived on what may well have looked like distinctly flimsy grounds, as well as by the king’s readiness to receive a litigant’s proffer without, in the end, giving anything in return for it.

Mowbray’s feelings, it may be presumed, were considerably stronger than mere concern, and his resentment was surely exacerbated by the way John treated his proffer. Whereas Stuteville had cleared 1600 marks of his debt by the time of his death in 1203,187 Mowbray did not pay any of his until 1205, when he handed over just ten marks, followed by twenty marks in 1206 and thirty in 1207.188 But then, when he had probably come to expect that he would be allowed correspondingly easy terms for the payment of the rest of this debt, John began to turn the fiscal screw on him. In 1208 he had to make two payments totalling £133. 6s. 8d.,189 while the following year’s pipe roll revealed elaborate arrangements under which he and numerous pledges, ranging from earls and barons to several of Mowbray’s own tenants, undertook to pay the king £100 per annum until the whole debt was cleared. The abbots of Fountains, Rievaulx and Byland together paid £100 to avoid becoming responsible for any part of Mowbray’s debt, which now stood at £1053.190 It was reduced by £100 in 1210,191 and in 1211 by as much as £164. 5s..192 But having intensified the pressure on Mowbray, John then found it expedient to relax it again. Only £36. 13s. 4d. were paid in 1212, when the remaining debt stood at £642. 1s. 8d.,193 and the same sum was still owing two years later. As so often, John’s maladroit handling of this case gave him the worst of both worlds. Having exploited his control of the courts to wring a substantial proffer from Mowbray, he encouraged the latter to assume at first that he was not going to be pressed to pay it, then set about methodically forcing regular payments of considerable sums, before reverting to his initial policy of accepting much smaller ones. He raised little more than half the money agreed upon, but after applying himself to extracting it then changed his policy in such a way that he did not conciliate his victim either. Mowbray remained one of John’s most determined enemies until the end of the reign.

 

Competing bids (2): The rivalries of lesser men

It was not only in lawsuits between barons that John showed himself willing to take money from both sides, litigants of lesser rank might similarly make competing bids for royal support. In 1200 Ralph de Belfou, a substantial Norfolk landowner, proffered one mark for an assize of mort d’ancestor against Gilbert of Norfolk and his wife Emma for half a knight’s fee at Creake and Burnham, Norfolk.194 In the same year, in what may have been an attempt to strengthen his position in advance of litigation, Gilbert proffered (and paid within a year) 100 marks and a palfrey for having the land which constituted the inheritance of his wife, and for having the king’s charters for it.195 The assize went ahead all the same, at first at Westminster and then before the justices itinerant who visited Norfolk in 1202. At that point Gilbert claimed that the action should not proceed because the disputed property, and all his other lands, had been taken into the king’s hand pro passagio suo – for his failure to cross the sea to take part in the defence of Normandy. This, however, was untrue, as Ralph claimed and the sheriff confirmed (Gilbert was recorded on the 1202 pipe roll as owing half a mark in scutage, showing that he had compounded not to go to Normandy),196 so the assize continued and found in Ralph’s favour.197 Gilbert did not accept defeat, however, for the 1204 pipe roll records him as proffering another 100 marks `for having seisin of half a knight’s fee in Creake and Burnham, with its appurtenances, of which he was disseised unjustly and without judgment, as he says ...’,198 and this bid achieved its end, since in Easter term 1204 Ralph was recorded as suing once more against Gilbert for the same half fee. Gilbert, it was said, had told the king that the 1202 assize had been taken while his knights were in royal service, adding that although he informed the justices of this, it had done him no good (non potuit ei valere).199 This plea seems to have persuaded John to put him in possession, even though Ralph appears in the meantime to have made a proffer of his own, since his debt of twenty marks and a palfrey `for having seisin’ was also entered on the 1204 pipe roll, and was paid off in stages between 1207 and 1211.200

Perhaps Gilbert’s higher bid, and his claim on the king’s favour implicit in his reference to the services of his knights, gave him the edge over his opponent. His advantage was not a decisive one, however, for Ralph continued the struggle, and may have recovered the property, for when in 1205 he proffered another five marks and a palfrey (paid off by Michaelmas 1206) to have seisin,201 it was with reference to a fine made in the coram rege court by which he conveyed the property to Gilbert and Emma for Gilbert’s lifetime, on condition that it reverted to him following the latter’s death, which took place some time before 3 October 1205202 (this doubtless explains why Gilbert paid only £13. 13s. 8d. of his second proffer).203 By this time Ralph was taking no chances, probably aware that Emma might be as determined an adversary as her late husband – in 1204 he had brought a parallel action against her for the same property, whereupon she attempted to essoin (excuse herself from attending) on the grounds of ill health, a claim which seems to have been false, since it was not allowed by the court (non fuit admissum)204 – and the sheriff was ordered to put him in possession without delay. The case may well have been a complex one (though it was certainly complicated further by Gilbert’s dishonesty – an unusually clear example of the unscrupulousness to which litigants might descend), and its eventual settlement was very possibly an equitable one. But if John saw that justice was finally done, he also ensured that he was well paid for this, and by both parties to the dispute.

A similar readiness to take money from both sides in a property dispute can be seen in a Warwickshire lawsuit of 1200, in which Thomas Noel and his wife, with two other couples, proffered £10 to have a stop placed on the plea between themselves and Herbert and Robert, sons of Ywein, over land at Weston, `because the king wishes to know what entry Ywein had into that land and how they lost it.’205 Robert, who was more often recorded as Robert Baggard, riposted by proffering forty marks for the assize (of mort d’ancestor) to continue, and prevailed, royal justices being ordered to hear the case, explicitly `because Robert has promised the lord king forty marks so that the assize may proceed’.206 The case ended in the following year, when his opponents bought Robert out of the land for just over £43.207 They did not, however, also have to pay what they had offered the king, for in 1205 the debt was cancelled, with the justiciar recording that `he [Noel] should not be summoned as he did not have what he proffered for’,208 whereas Robert paid most, but perhaps not all, of his proffer.209

In cases like these the bidding for royal favour appears to have been that of the litigants alone, but it could be actively encouraged by the king. Probably in 1207 Roger de Ginges claimed half a carucate of land in Paglesham, Essex, against Robert de Bouton. The case went to the grand assize, but several delays followed, one of them caused by Robert’s having essoined on the grounds of illness. It was recorded in the autumn of 1211 that in accordance with the regulations, four knights had been sent to view him, but they failed to do so, and in any case Robert had risen from his sickbed, as he himself admitted. This was in breach of the protocols governing essoins, which laid down that no-one spared attendance because he was sick could rise from his bed within a year and a day unless granted permission by the court, as Roger at once pointed out. Robert proffered forty marks to have his transgression overlooked, whereupon Roger offered the same sum `for having judgment’. That was not enough, but for fifty marks Roger obtained what he wanted, with seisin being awarded to him on the grounds of what in law constituted a default on Robert’s part.210 Robert was in the wrong, but seems to have lost his case ultimately because his proffer was lower than that of Roger, who himself incurred a fifty-mark debt for a judgment he should have obtained for nothing (he had paid over half of it by 1218, but still owed just over £6 in 1224).211

 

A mixture of motives

(a) D’Oilly versus Paynel

John’s involvement in the administration of justice arose initially from the claims of his office, and there is sufficient evidence to show that on numerous occasions he responded to those claims both efficiently and conscientiously. But the surviving records also leave little doubt that the demands of his conscience were all too often overpowered by other considerations – financial gain, political advantage or simple personal dislike, either individually or in combination. Hence, for instance, his treatment of an extended lawsuit over the manor of Watlington, Oxfordshire, between Henry d’Oilly, lord of the barony of Hook Norton, also in Oxfordshire, and William Paynel and his wife Sarah de Bidun. D’Oilly, whose ancestors had held Watlington in 1086 but lost it in Stephen’s reign, began his action no later than 1207, when the Paynels, who held the manor in Sarah’s right, proffered 100 marks and two palfreys to have proceedings respited, a move probably linked to Sarah’s essoin at Michaelmas that year on the grounds of ill health, one which was upheld by the knights who viewed her and reported that she was indeed sick.212 The action was still in progress in 1210, but probably in the following year Sarah died, whereupon the land was taken into the king’s hand213 (it lay within the honour of Wallingford, which was not only a royal escheat but had also formed part of the appanage granted by Richard I to John in 1189, so that the latter may have felt he had a double interest in it). By this time half the proffer of 1207 had been paid, but Paynel now proffered a further £100 and a palfrey to have Watlington (and two other properties) for life. Sarah appears to have died childless, and her husband would ordinarily have had no right to the life tenure which he could have claimed had there been even short-lived children of his marriage. As it was, Paynel continued to hold Watlington, while his two debts were amalgamated by the exchequer, but he died before they could be cleared.214

What happened next is revealed by litigation recorded several years later, in 1220, when Henry d’Oilly was called into the Bench to explain a settlement he had made with Peter FitzHerbert over the manor of Watlington at the previous year’s Berkshire eyre.215 He then claimed that his action against William Paynel had so far proceeded that they had made a settlement, and that he (not the king, according to this account – perhaps John only confirmed, for a consideration, an arrangement which had been made without his involvement) had given Paynel a life interest in the manor, but that after Paynel’s death John had intervened, taking the manor into his own hand per voluntatem suam and entrusting it to Peter FitzHerbert (this is confirmed by John’s order to the constable of Wallingford, given on 15 April 1216, instructing him to cause Peter to have Paynel’s land in Watlington, which the king had committed to him).216 Peter had subsequently made an agreement of his own with d’Oilly, something he had no right to do because Watlington was not his to dispose of, since he had only the custody of it (de ballio). John had been prepared to take money from the Paynels, as he did twice, but he was probably also strongly influenced by dislike and distrust of d’Oilly, whom he treated harshly over a debt owed to an Oxford Jew which John had taken into his own hand, and who had joined the rebels against the king by mid-November 1215.217 Peter FitzHerbert, by contrast, was a stalwart henchman of the king’s. The same case shows John using competing interests in a property as grounds for raising money, for thwarting the aspirations of a perceived adversary, and for bestowing a favour upon a trusted servant.

 

(b) Caldbeck versus Courtenay

The king was probably moved by similar considerations in his treatment of a still more complex dispute, one extending over at least six years, arising from Alexander of Caldbeck’s action against Robert de Courtenay and his wife Alice for nine carucates of land (over 1000 acres) in Caldbeck, Cumberland. In 1200 Alexander proffered first twenty marks, and then fifty marks and a palfrey, for an inquest into whether he had been committed, together with the disputed land, to the wardship of his grandfather Gospatric FitzOrm, lord of Workington and Seaton, who had subsequently been disseised by Reginald de Lucy, Robert de Courtenay’s brother-in-law.218 Courtenay, who was lord of Cockermouth and of Allerdale below Derwent in the right of his wife, and thus a formidably powerful man in north-west England, riposted with an identical proffer to have the inquest stopped, and undertook to stand to right in the king’s court should anyone wish to sue against him, thus ensuring that any further proceedings took place in what he doubtless felt were likely to be favourable conditions.219 Neither of Alexander’s proffers was even entered on the pipe roll, but Courtenay paid twenty-five marks in 1203220 (it is unclear if he paid the rest), and in doing so underlined his advantage over his opponent.

Alexander continued to sue, however, and in 1204 he made a further proffer for an inquest, this time of £100,221 and presumably as a result a jury was summoned,222 but Courtenay had remained on the alert, and in a memorandum of 1205 was recorded as having offered 100 marks `that the inquest should not ever proceed over nine carucates of land etc.’.223  This proffer, too, was not paid – it was not even entered on the pipe roll – and may have been only a tactical gesture. It is possible, indeed, that John briefly gave Alexander possession of the land he sought, but if such an award was made it flattered to deceive, for in 1206 Robert de Courtenay and his wife proffered £200 and two palfreys `for having seisin of the half of Caldbeck township of which Alexander of Caldbeck had seisin on the king’s order, so that thereafter they are treated [as lords] over the whole of Caldbeck township, in accordance with the custom and law (assisam) of the kingdom.’224 It was a bid which Alexander could not match, and when his case came into court in Easter term 1206 he threw in his hand, telling the justices that `he did not wish to sue further for that jury as it does not please the king that he should have it.’225 His proffer was cancelled accordingly, `because Robert de Courtenay has that land by the fine below of 300 marks and two palfreys ‘226 – the cause of Robert’s victory could hardly have been made more explicit.

Had all the proffers made during this case been paid, they would have amounted to just under £450, with Alexander contributing £136. 13s. 4d. in all, and the Courtenays £306. 13s. 4d. In fact Alexander is not recorded as paying anything at all, and it is possible that all his proffers were essentially gestures, made in the hope of attracting the king’s attention. Only the proffers made by the Courtenays brought money into the exchequer, but they were decisive, especially the second, which was very largely paid – within two years all but the palfreys had been handed over.227 The longer purse certainly prevailed, but so too, without much doubt, did the king’s political interest. John was probably not greatly interested in the justice or otherwise of Alexander’s case, but he might well have been wary of re-opening ancient disputes in a part of his kingdom where he had many opponents and few committed friends. The evidence suggests that Alexander could assert his descent, and thus his right in Caldbeck, through his grandfather from that Gospatric who had been earl of Northumbria in the years immediately after 1066, and whose grandson Alan son of Waldeve had been granted Allerdale below Derwent by Henry I.228 Possibly Alexander was the son and namesake of the Alexander recorded as the youngest son of Gospatric FitzOrm. The disseising of the latter was probably a consequence of the latter’s disgrace in 1174, when he surrendered Appleby to invading Scots without a fight, in a war whose aftermath entailed the political reorganisation, and a substantial advance by royal power, throughout the whole of the north of England.229 Since allowing a detailed inquest into Alexander’s case might bring all sorts of half-forgotten claims and half-buried injustices to light, it was only prudent to ensure that none was held, while at the same time upholding the rights, and receiving the money of Robert de Courtenay, whose support John might reasonably have thought worth having (in the event Courtenay died soon after these proceedings came to an end, so his loyalty was never put to the test).

 

(c) Montbegun versus Port

Alexander of Caldbeck’s lawsuit was problematic for John in that complex legal issues were complicated further by considerations of his own political advantage and financial gain, perhaps especially the former. Those considerations seem to have prevailed, for it appears unlikely that Alexander received justice, but it is by no means certain that the king’s interests were served either, whether in this case or in others affected by the same extraneous factors. In 1200 the Lancashire magnate Roger de Montbegun proffered 500 marks for the marriage of Olive, the widow of Robert de St John, joint-lord (with his brother William) of the Sussex honour of Halnaker, with all her land and inheritance, including her dower, and paid off his debt during the next ten years (140 marks were pardoned).230 But at the same time he faced an obstacle to his tenurial ambitions in the form of William de Port, the son of Adam de Port, lord of Basing, and his wife Mabel, who was the niece of Robert and William de St John, and brought an action against him, most likely for Olive’s dower. William’s estates were then in the custody of Fulk Paynel, lord of Bampton in Devon, who had recently recovered properties forfeited in 1185 with the help of William Brewer,231 and Paynel now put a stop to Montbegun’s lawsuit, by showing letters from the king to the justiciar, granting him peace `for all his lands and wardships’.232 One William de Mustell, who had similarly brought an action against William de Port, also for land in Sussex, simply abandoned the case, which was adjourned sine die on the king’s order.233

In 1202 William de Port pursued his advantage to proffer £150 for the St John lands in England, and Halnaker, at least, remained in his family into the fourteenth century.234 Montbegun seems to have secured some of his wife’s inheritance, above all at Broughton, Lincolnshire, and Oswaldbeck, Nottinghamshire.235 but he must have hoped for significant gains in the south of England as well. As it was, any aspirations he had there were thwarted, and although he paid more than Port he appears to have received much less. The Ports were another example of a family with a substantial interest in Normandy,236 and John may on those grounds have thought it advisable to do what he could to retain their support. But Montbegun had followed the future king into rebellion in 1194, when he was prominent in holding Nottingham Castle against forces loyal to Richard I,237 had had to proffer 500 marks, nearly all of which he paid, to recover his lands afterwards,238 and could reasonably have hoped for favours from a man on whose behalf he had made considerable sacrifices. Instead, John took his money but failed to give him what he had paid for. Unsurprisingly, Montbegun was prominent both in resistance to the king in 1204/5, and in rebellion at the end of John’s reign (he was one of the twenty-five barons charged with maintaining Magna Carta).239 But although the king sacrificed Montbegun’s loyalty, he failed to win that of William de Port (who took his mother’s family name of St John), who became as active in rebellion in Hampshire as Montbegun did in the north.240 Failure to do justice to one party to a dispute was no guarantee of influence over the other, indeed, it may simply have increased distrust of the king, even among those who received judicial benefits from him.  

 

Making enemies: the constabulary of Richmond

There were many ways in which a king could manipulate the course of justice once an action had begun. It was also open to him to refuse to hear a case at all, an action which was not necessarily always an act of injustice. The most striking, and best known, example of a lawsuit which John should arguably not have agreed to hear was the claim made in 1208 by one Robert Cotele against Ruald FitzAlan, constable of Richmond, for four Yorkshire manors and six and a half knights’ fees, together comprising half the constabulary of Richmond.241 Ruald’s ancestors had held the entire constabulary under Henry I, but a competing grant under Matilda, and then a division under Henry II, had resulted in half of it being held by members of the Rollos family until 1204, when the forfeiture of William de Rollos following the loss of Normandy had enabled Ruald to reunify it.242 To achieve this he proffered £100 and two palfreys in 1205, with the proviso that `he is not to be disseised of those lands except by the judgment of the lord king’s court,’ and was given a royal charter, in terms almost identical to those of his proffer, dated 10 March 1205.243 Nevertheless Ruald seems to have felt that his title in one of the manors, that of Brompton-upon-Swale, stood in need of strengthening, for a year later he made a further proffer of 100 marks and a palfrey `for having the land of Brompton ...’.244 By Michaelmas 1207 both his proffers had been paid.245

Nothing is known of Cotele outside this action. His claim, which was notably lacking in corroborative detail, was that his mother (unnamed) was the aunt of the William de Rollos who forfeited in 1204, and that he was therefore the heir of Richard (i) de Rollos, who had been active in the reigns of Henry I and Stephen, and from whom his right to half the constabulary had descended. The nature of his claim meant that he could not have sued by a writ of mort d’ancestor, and he did not claim to have been disseised, only that Ruald `deprives’ (deforciat) him of his inheritance. Perhaps John asserted that as the fount of justice he was obliged to hear the case, and that the proviso of 1205 had raised the possibility of the action which Cotele was now bringing. No such proviso was attached to the grant of 1206, however, and in any case Ruald, who protested that he had not been cited `as for a plea’, must have been outraged that despite two proffers and a royal charter he was still expected to defend his right in lands which he could reasonably have felt he had done everything possible to secure. In the end nothing came of the action, which was almost certainly allowed, or even encouraged, by John as an additional punishment for Ruald’s opposition to the previous year’s thirteenth. For this he had already been amerced of 200 marks and four palfreys and temporarily disseised of Richmond Castle,246 but John may have thought that the threat of losing half his recently-recovered inheritance would act as an additional constraint upon him. In all likelihood it had exactly the opposite effect, for Ruald and his retainers were prominent, and determined, in resisting the king during the civil war.247

 

Wider issues

Containing only nine Latin words, Clause 40 is the shortest in the whole of Magna Carta, but was arguably the widest in its scope, laying a concise but emphatic ban upon a huge range of long-established governmental practices and devices. The abuses it aimed to remedy were not invented by King John, and though his exploitation of them was probably stepped up as his reign progressed, he does not appear to have done anything in the second half of his reign that he cannot also be found doing in its first. The judicial system which he inherited in 1199 contained a rich potential for wrongdoing which the king could exploit as he chose. It should be added that the extent of that wrongdoing cannot be exactly determined, for it is likely that many of John’s actions were either enrolled in records which are now missing, or were never recorded in the first place. A case from Devon illustrates the problem. In 1218 one William Treminet brought an action of novel disseisin against William Pipard for land at Larkbeare, near Exeter, of which he claimed to have been dispossessed some time after the summer of 1210. Eight of the jurors found against Treminet, but the ninth, Gerard de Clist, broke ranks with his colleagues and declared that the land had been Treminet’s until Pipard disseised him `through his money which he gave to King John’ (per pecuniam suam quam dedit domino Regi J). The other jurors, questioned a second time, now agreed with Clist that `in truth William Pipard gave his money to King John and William Treminet was so disseised by the lord king for his money’. The justices adjourned proceedings, but Treminet did not appear on the specified day and lost the case by his default.248

The plaintiff’s withdrawal is only one of several puzzling features of this case. There is no surviving record of any payment by Pipard. There may have been one entered on the lost pipe roll for 1213, but the money could also have been paid into the king’s chamber, and so never recorded by the exchequer at all. And the facts, and issues, are only obscured further by John’s order to the sheriff of Devon, given in July 1216, that he should put William Treminet in possession of land at Larkbeare `which was William Pipard’s’,249 thus seeming to reverse the king’s presumably earlier action on the latter’s behalf. The implication of the order is that Pipard had rebelled, so providing Treminet with an opportunity to recover what he had lost, but there is no confirmatory evidence for this. It is possible, indeed, that the jurors’ findings in 1218 were themselves ill-founded, and represented an attempt to gain a forensic advantage on the basis of John’s posthumous ill-repute in matters of law, rather than providing a reliable account of anything that actually happened.

John’s ill-repute – to which Clause 40 has made a lasting contribution – owed much to the confusions and uncertainties attendant upon cases like that of Treminet versus Pipard, and was itself the natural consequence of the improvisatory character of Angevin administration, with its tendency to bypass the settled routines and agencies of government, and of the way in which that administration took its character from the personality of the ruler who directed its operations, whether these involved matters of war, finance or law. In the years around 1200 the belief that justice was the king’s, and that the men who dispensed it, and had been appointed by the king to do so, were required to maintain his interests and obey his commands, was still fundamental to its administration. The advantages inherent in that outlook, both fiscal and political, were such that King John was very unlikely to want to relinquish them.

The Bible gave precedents for a concept of justice as an abstract force existing in independence of the human agencies which provided it. Clause 40 was not formulated in order to uphold this idea, but through its demand for an end to royal interference, however it was exerted and for whatever purposes, it created a space within which it could develop. It was probably not alone in doing this, or at least in trying to do so. The justices’ clerk who noted of a royal decision early in John’s reign that `this inquest was made by command of the lord king, not by a judgment of the court or according to the custom of the realm’,250 may have been expressing his irritation at an amateur’s intrusion into a world increasingly dominated by professionals, rather than registering a protest at an infringement of judicial independence. But there are occasional signs of such independence all the same, for instance the assize of novel disseisin which Albert of Willisham brought against Hugh de Malo Alneto for land in Suffolk in 1205. The king directed the justices not to hear the case, but Albert objected to the formulation of the writ conveying the royal command, the justices agreed with him, and in defiance of their instructions they ordered that proceedings should continue (its outcome is unknown).251

Not all those justices who rebelled, or were suspected of being rebels, at the end of John’s reign were necessarily moved only by personal grievances, some may have objected to the king’s manipulation, or overriding, of legal processes as well, in the process showing that the venality sometimes alleged against them was not the only force capable of influencing their actions. The six justices who subscribed a well-known protest to the regency government from their eyre in Lincolnshire in 1219, objecting to an attempt to interfere in their conduct of a lawsuit between Gilbert de Gant and the count of Aumâle, had all been active in government under King John, and though none of them could probably be described as professional justices, both John Marshal, who on a few occasions sat in the court coram rege,252 and William de Cressi, who acted as an assize justice,253 had at least some judicial experience. Three of the six had remained loyal to John to the end of his reign, the others had either rebelled or been suspected of baronial sympathies, but soon came into King Henry’s allegiance after his father’s death. When such men claimed to see themselves as `owing justice to all and each, poor and rich equally, without distinction of persons’,254 they may well have been adopting a position with regard to the administration of law which had been gathering impetus during the previous reign, strengthened in its development by misgivings over King John’s treatment of the courts, and his exploitation of the justice provided there. That king’s intentions could be seemingly virtuous, while his actions might be constructive and even benevolent, but his sheer inconsistency, reinforcing the effects – all too often on display – of financial greed, political chicanery and personal malice, more than offset his positive qualities. Clause 40 aimed to prevent the king’s personal failings from affecting the operation of his courts, but it achieved more than that, for it set in motion a long-drawn-out process which eventually enabled those courts to function in separation from government altogether. In the reissue of Magna Carta in 1225 it was linked to Clause 39, and in that form it has remained on the statute book up to the present day

1	J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992), 427.
2	D. Carpenter, Magna Carta (2015), 355.
3	A point I owe to Paul Brand, along with many others which have greatly improved this commentary.
4	Cf. D.M. Stenton, English justice between the Norman Conquest and the Great Charter, 1066-1215 (1965), 93 – `The King was endeavouring to tread the narrow course between the letter of the rigid law and formless equity.’
5	G.D.G. Hall (ed.), The treatise on the laws and customs of the realm of England commonly called Glanvill (2nd edn., Oxford, 1993), 2.
6	E. Amt and S.D. Church (eds.), Dialogus de Scaccario (Oxford, 2007), 180-1.
7	Full details can be found in R.V. Turner, The English judiciary in the age of Glanvill and Bracton, c. 1176-1239 (Cambridge, 1985),
8	H.L.D. Ward, `The vision of hell, probably by Ralph of Coggeshall, printed from a MS in the British Museum’, Journal of the British Archaeological Association 31 (1875), 420-59, at 452-3. See also Turner, English judiciary, 116-17.
9	John of Salisbury, Policraticus, ed. and trans. C.J. Nederman (Cambridge, 1990), 96-7.
10	Walter Map, De nugis curialium: courtiers’ trifles, ed. and trans. M.R. James, rev. C.N.L. Brooke and R.A.B. Mynors (Oxford, 1983), 13, 508-9.
11	C. Morris, The papal monarchy: the western church from 1050-1250 (Oxford, 1989), 408-9; C.R. Cheney, Innocent III and England, Päpste und Papsttum 9 (Stuttgart, 1976), 109-111.
12	J.E. Sayers, Papal judges delegate in the province of Canterbury, 1198-1254 (Oxford, 1971), 133-5.
13	W. Stubbs (ed.), Gesta Regis Henrici Secundi Benedicti Abbatis, 2 vols. (Rolls Series, 1867), i, 357.
14	D. Whitelock, M. Brett and C.N.L. Brooke (eds.), Councils and Synods, 1066-1204, 2 vols. (Oxford, 1981, continuously paginated), 1050 (c. 10); F.M. Powicke and C.R. Cheney (eds.), Councils and Synods II, 1205-1313, 2 vols. (Oxford, 1964), i, 34 (c. 52).
15	Glanvill, 28.
16	See, e.g., Turner, English judiciary, 159-60
17	Curia Regis Rolls i: Temp. Rich. I-1201 (1922), 462.
18	British Library, MS Cotton Vesp. E. iii, fol. 173r.
19	Map, De nugis curialium, 499.
20	H.G. Richardson (ed.), The memoranda roll for the Michaelmas term of the first year of the reign of King John (1199-1200), Pipe Roll Society, new series 21 (1943), xlix n. 1.
21	R.V. Turner, The king and his courts: the role of John and Henry III in the administration of justice, 1199-1240 (Cornell, 1968), 120.
22	R.V. Turner, Judges, administrators and the common law in Angevin England (1994), 105-6.
23	Walter Map, De nugis curialium, 479, 485, 511-13.
24	Giraldi Cambrensis opera viii: De principis instructione liber, ed. G.F. Warner (Rolls Series, 1891), 160.
25	R. Anstruther (ed.), Radulfi Nigri chronica: the chronicles of Ralph Niger, Caxton Society 13 (1851), 167-9.
26	R.C. van Caenegem (ed.), English lawsuits from William I to Richard I, 2 vols., Selden Society 106-7 (1990-1), ii, 397-404. For the background see Paul Brand, `Anstey, Richard of (c. 1137-1194/5)’, Oxford Dictionary of National Biography, Oxford University Press, May 2006; online edn., Jan. 2008 [http://www.oxforddnb/view/article, 92468, accessed 18 May 2015].
27	PR 32 Henry II (1186), 36; PR 2 Richard I (1190), 113.
28	PR 11 Henry II (1165), 42; H. Hall (ed.), The red book of the exchequer, 3 vols. (Rolls Series, 1896), i, 206; the payment of the last 2s. 3d. of William’s debt is recorded PR 5 John (1203), 140.
29	PR 18 Henry II (1172), 53; Hall, Red book, i, 321, 324;
30	PR 33 Henry II (1187), 73-4; W. Farrer, Honors and knights’ fees ii (1924), 208-9.
31	PR 16 Henry II (1170), 83; PR 17 Henry II (1171), 50.
32	PR 23 Henry II (1177), 114.
33	PR 31 Henry II (1185), 182; Hall, Red book, i, 93, 107, ii, 605; Farrer, Honors and knights’ fees iii (1925), 356.
34	PR 23 Henry II (1177), 134.
35	PR 31 Henry II (1185), 72. The printed text of the pipe roll has `justiciis’ for the original’s justic’ (TNA, E 372/31 m. 5d), but in this context justiciario seems more likely. Lacy held over forty knights’ fees in Yorkshire – Hall, Red book, i, 77.
36	Dialogus de Scaccario, 180-1.
37	Walter Map, De nugis curialium, 508-9.
38	PR 21 Henry II (1175), 125; PR 34 Henry II (1188), 55.
39	Curia Regis Rolls vii, 1213-1215 (1935), 9-10.
40	PR 31 Henry II (1185), 109; PR 4 Richard I (1192), 269. For Sandford see Liber feodorum: the book of fees commonly called Testa de Nevill, 3 vols. (1920-31), ii, 839.
41	PR 5 Richard I (1193), 144. The serjeanty was variously described as performed in the king’s buttery and larder – Book of fees i, 15, 22.
42	PR 6 Richard I (1194), 249.
43	PR 8 Richard I (1196), 186; Book of fees i, 23-4.
44	PR 7 Richard I (1195), 105; PR 8 Richard I (1196), 39-40.
45	PR 4 Richard I (1192), 288.
46	Glanvill, 174.
47	PR 8 Richard I (1196), 108.
48	PR 6 Richard I (1194), 174; the different name is recorded PR 7 Richard I (1195), 133 onwards.
49	PR 6 Richard I (1194), 171.
50	Ib., 190.
51	PR 3 John (1201), 32; PR 4 John (1202), 90; PR 8 John (1206), 129; I.J. Saunders, English baronies: a study of their origin and descent, 1086-1327 (Oxford, 1960), 64.
52	PR 8 Richard I (1196), 148. Payments of the money become increasingly difficult to trace as the debt was shared out among descendants and kinsmen, but at least fourteen marks from it was still owing in 1232 – R.A. Brown (ed.), Memoranda rolls 16-17 Henry III (1991), no. 1212 (p. 88).
53	PR 8 Richard I (1196), 249; Farrer, Honors and knights’ fees ii, 96-7.
54	PR 9 Richard I (1197), 154 – the money was paid within a year.
55	Turner, The king and his courts, 21-2.
56	T.D. Hardy (ed.), Rotuli litterarum patentium, 1201-1216 (Record Commission, 1835 – hereafter Rot.Lit.Pat.), 3.
57	PR 2 John (1200), 157; Curia Regis Rolls i, 471.
58	Curia Regis Rolls ii, 1201-1203 (1925), 157; D.M. Stenton, Pleas before the king or his justices, 1198-1202, ii, no. 899 (p. 265); D.M. Stenton (ed.), The earliest Northamptonshire assize rolls, A.D. 1202 and 1203, Northamptonshire Record Society 5 (1930 for 1928-9), no. 604 (p. 92).
59	Curia Regis Rolls ii, 114.
60	Ib., 40
61	T.D. Hardy (ed.), Rotuli de oblatis et finibus ... tempore regis Johannis (Record Commission, 1835 – hereafter Rot.Ob.Fin.), 76; PR 3 John (1201), 222; Curia Regis Rolls ii, 37-8; Stenton, Pleas before the king or his justices, 1198-1202, i, no. 3181 (p. 313), ii, nos. 622-4 (pp. 179-80). These adjournments did the abbot no perceptible good. Tewkesbury had held both churches in 1107, but no longer did so in 1176, and they were in the possession of the Grenvilles later in the thirteenth century: British Library, MS Cotton Cleop. A. vii, fols. 73v, 76v; O.F. Robinson (ed.), The register of Walter Bronescombe, bishop of Exeter, 1257-1280, 3 vols., Canterbury and York Society 82, 87, 94 (1995-2003), i. nos. 720, 1124, ii. no. 317.
62	Curia Regis Rolls iii, 1203-1205 (1926), 213, 297; PR 9 John (1207), 109. For Levesque see Book of fees i, 178, and 492, where he is recorded as collector of an aid in Cambridgeshire in 1235/6.
63	PR 5 John (1203), 197; Curia Regis Rolls ii, 277-8, iii, 31. Agnes’s debt continued to be entered on the pipe roll until 1212; it was latterly charged to her heirs, indicating that she had died.
64	Curia Regis Rolls i, 193, ii, 134.
65	Rot.Ob.Fin., 189; PR 5 John (1203), 5-6.
66	PR 5 John (1203), 6.
67	T.D. Hardy (ed.), Rotuli de liberate ac de misis et praestitis, regnante Johanne (Record Commission, 1844), 41-2.
68	See Holt, Magna Carta, Chapter 5, especially 126-8, 150-7.
69	G.J. Turner and T.F.T. Plucknett (eds.), Brevia placitata, Selden Society 66 (1951 for 1947), xlviii-li.
70	PR 9 John (1207), 37; PR 10 John (1208), 100.
71	Curia Regis Rolls ii, 245; iii, 82, 242, 333; iv, 1205-1206 (1929), 106, 232, 301; PR 10 John (1208), 100.
72	PR 1 John (1199), 289; Curia Regis Rolls i, 92-3.
73	PR 5 John (1203), 193; PR 6 John (1204), 109; Curia Regis Rolls ii, 141.
74	PR 8 John (1206), 168; Curia Regis Rolls iv, 121.
75	Rot.Ob.Fin., 542; PR 16 John (1214), 134; Curia Regis Rolls vii, 134.
76	Rot.Ob.Fin., 348.
77	PR 10 John (1208), 168.
78	Curia Regis Rolls v, 1207-1209 (1931), 226, 235-6.
79	PR 4 John (1202), 115; PR 10 John (1208), 4. A number of cases initiated and concluded under expensive writs are discussed elsewhere in this commentary.
80	Holt, Magna Carta, 150-1.
81	Curia Regis Rolls i, 153, 382, 429; PR 3 John (1201), 53; PR 4 John (1202), 251. For comment on this case see also D.M. Stenton, English justice between the Norman Conquest and the Great Charter, 1066-1215 (1965), 93.
82	Curia Regis Rolls vi, 1210-1212 (1932), 176; PR 14 John (1212), 155.
83	Curia Regis Rolls vi, 218-19, 322; vii, 120; E. Green (ed.), Feet of fines for the county of Somerset, Richard I to Edward I, Somerset Record Society 6 (1892), 28. Alfred’s proffer was entered on the 1212 pipe roll, but had either been paid or abandoned by 1214 – PR 14 John (1212), 120.
84	Curia Regis Rolls iii, 317; iv, 23; Rot.Ob.Fin., 300; PR 8 John (1206), 30; PR 9 John (1207), 173.
85	Rot.Ob.Fin., 278; Curia Regis Rolls iii, 263, 301, 334, 347; iv, 42-3; PR 14 John (1212), 106 records the final payment of the debt. Bruewere was a tenant of Gant’s in Lincolnshire – J.C. Holt, The Northerners: a study in the reign of King John (Oxford, 1961), 52 n. 6.
86	Curia Regis Rolls i, 383; PR 4 John (1202), 163; Rot.Ob.Fin., 49, 188. See also Holt, Northerners, 240.
87	Rot.Ob.Fin., 120; Curia Regis Rolls i, 439; Rot.Lit.Claus. i, 53.
88	Rot.Ob.Fin., 171; PR 3 John (1201), 72; PR 4 John (1202), 267; PR 10 John (1208), 31.
89	Sir William Dugdale, Monasticon Anglicanum, eds. J. Caley, H. Ellis and B. Bandinel, 6 vols. (1819-30), iii, 314-15.
90	Ib., 287. For the background to and outcome of the case, see Holt, Magna Carta, 135.
91	Curia Regis Rolls vi, 203-4, 247.
92	Curia Regis Rolls vi, 279; vii, 54. No reference to Robert’s proffer has been noticed in either the fine rolls or the pipe rolls.
93	Rot.Ob.Fin., 360, 375-6; Curia Regis Rolls iv, 177; v, 165; vi, 3 ; PR 9 John (1207), 178; PR 10 John (1208), 12.  For Henry FitzGerold see D. Crouch, William Marshal: knighthood, war and chivalry, 1147-1219 (2nd edn., 2002), 222.
94	Rot.Ob.Fin., 68; PR 2 John (1200), 265; Curia Regis Rolls i, 370
95	Rot.Ob.Fin., 427; Curia Regis Rolls vi, 160.
96	Rot.Ob.Fin., 346; Curia Regis Rolls v, 280; PR 11 John (1209), 198-9; PR 12 John (1210), 201.
97	D.M. Stenton (ed.), Pleas before the king or his justices 1198-1212, iv, Selden Society 84 (1967) nos. 3446, 3450; PR 7 John (1205), 52; PR 8 John (1206), 200.
98	PR 2 John (1200), 206
99	Rot.Ob.Fin., 93; Rot.Chart., 84.
100	PR 5 John (1203), 148.
101	Rot.Ob.Fin., 237.
102	Curia Regis Rolls iv, 262.
103	Curia Regis Rolls vii, 97.
104	The phrase is that of A.L. Poole, Obligations of society in the XII and XIII centuries (Oxford, 1946), 66.
105	TNA, JUST 1/818 m. 45d; E.J. Gallagher (ed.), The civil pleas of the Suffolk eyre of 1240, Suffolk Records Society 52 (2009), no. 328.
106	PR 2 John (1200), 50; Curia Regis Rolls i, 264, 397, 418; PR 4 John (1202), 266.
107	PR 6 John (1204), 44; Rot.Lit.Pat., 38. For his links with the Umfravilles see Curia Regis Rolls v, 58-9.
108	Rot.Ob.Fin., 301-2; PR 7 John (1205), 117; PR 8 John (1206), 51; PR 9 John (1207), 34.
109	F.R.H. Du Boulay, The lordship of Canterbury: an essay on medieval society (1966), 200-1.
110	C.R. Cheney, Hubert Walter (1967), 112.
111	Rot.Lit.Claus. i, 76; PR 9 John (1207), 61 (the debt was paid within three years).
112	Rot.Ob.Fin., 189; PR 4 John (1202), 95; PR 5 John (1203), 156; PR 11 John (1209), 98-9.
113	PR 5 John (1203), 77; Curia Regis Rolls ii, 31; iii, 256; iv, 25
114	PR 8 John (1206), 237; Rot.Ob.Fin., 360; Curia Regis Rolls iv, 120, 280; v, 61; R.E.G. Kirk (ed.), Essex fines i: 1182-1272 (Colchester, 1899-1910), 42. Amaury’s payments are recorded PR 10 John (1208), 34; PR 11 John (1209), 196. The remaining twenty-two marks were entered on a pipe roll for the last time PR 2 Henry III (1218), 69.
115	PR 3 John (1201), 290; PR 4 John (1202), 214; Curia Regis Rolls i, 265, 400, 421; ii, 40..
116	J. Gillingham, Richard I (Yale, 1999), 313.
117	PR 14 John (1212), 85; Curia Regis Rolls vi, 321, 397-9. For the background to the dispute, see Victoria County History of Sussex V:i (1997), 182-90.
118	Cheney, Hubert Walter, 107; Du Boulay, Lordship of Canterbury, 100.
119	F.M. Powicke, The loss of Normandy, 1189-1204 (2nd edn., Manchester, 1961), 333.
120	Rot.Ob.Fin., 410; Curia Regis Rolls v, 72. The debt was finally cleared in 1224, PR 8 Henry III (1224), 154.
121	T.D. Hardy (ed.), Rotuli chartarum 1199-1216 (Record Commission, 1837 – hereafter Rot.Chart.), 146-7.
122	Rot.Ob.Fin., 119.
123	PR 33 Henry II (1187), 184; PR 34 Henry II (1188), 99. `Derecestr’ has not been identified; the name suggests a place somewhere on Dere Street, though this lay some distance west of both Wooler and Ford.
124	PR 3 John (1201), 248.
125	PR 5 John (1203), 86.
126	PR 5 John (1203), 58; D.M. Stenton (ed.), Rolls of the justices in eyre ... for Lincolnshire 1218-9 and Worcestershire 1221, Selden Society 53 (1934), no. 1298 (pp. 627-9).
127	Curia Regis Rolls vi, 236, 280; PR 13 John (1211), 65.
128	PR 14 Henry III (1230), 316. In 1242 each of the other two appellees still owed over £30, PR 26 Henry III (1242), 309.
129	Curia Regis Rolls v, 154.
130	Ib., 220-1.
131	PR 11 John (1209), 50.
132	CRR v, 209; CRR vii, 227.
133	PR 3 John (1201), 157-8.
134	PR 1John (1199), 54.
135	Curia Regis Rolls i, 144, 362; ii, 154; J.C. Atkinson (ed.), Cartularium Abbathiae de Whiteby, 2 vols., Surtees Society 69, 72 (1879-81), i, 211 n. 2, ii, 421-2.
136	Palgrave, Rotuli Curiae Regis i, 410; ii, 199; Curia Regis Rolls i, 348; ii, 86; iv, 18; v, 51-2, 139-40; PR 10 John (1208), 188.
137	PR 11 John (1209), 49; PR 12 John (1210), 50; Curia Regis Rolls v, 320. For this case see also Rot.Lit.Pat., 72; PR 9 John (1207), 178; Rot.Lit.Claus. i, 380.
138	Curia Regis Rolls iv, 184-5; Rot.Lit.Claus. i, 71.
139	`Continuatio chronici Willelmi de Novoburgo’, R. Howlett (ed.), Chronicles of the reigns of Stephen, Henry II, and Richard I, 4 vols. (Rolls Series, 1884-9), ii, 510-11. John was at York 27-30 March 1210.
140	PR 12 John (1210), 65.
141	PR 8 John (1206), 53; the final payment is recorded PR 8 Henry III (1224), 146.
142	Curia Regis Rolls v, 282.
143	I.J. Churchill, R. Griffin, F.W. Hardman (eds.), Calendar of Kent feet of fines, Kentish Archaeological Society records branch 15 (1956), 121-2.
144	Victoria County History of Buckinghamshire iv (1927), 215-16.
145	For Robert’s career see Matthew Strickland, `Fitzwalter, Robert (d. 1235)’, Oxford Dictionary of National Biography, Oxford University Press, 2004, online edn., May 2011 [http://www.oxforddnb.com/view/article/9648, accessed 8 July 2014]. Also S. Painter, The reign of King John (Baltimore, 1949), 31-5.
146	Curia Regis Rolls i, 116.
147	Stenton, Pleas before the king or his justices, 1198-1202, i, 89; PR 2 John (1200), 48.
148	Rot.Lit.Pat., 17.
149	Powicke, Loss of Normandy, 162.
150	PR 11 John (1209), 190.
151	F. Michel (ed.), Histoire des ducs de Normandie et des rois d’Angleterre (Société de l’histoire de France, Paris, 1840), 182.
152	H.G. Hewlett (ed.), Rogeri de Wendover liber qui dicitur flores historiarum, 3 vols. (Rolls Series, 1886-9), ii, 200.
153	Curia Regis Rolls i, 178.
154	Rot.Chart., 61. Several writs of protection were entered on the charter roll at this time, but very few as carefully worded as the one granted to St Albans, which seems likely to have been obtained for the specific purpose of delaying FitzWalter’s suit.
155	PR 2 John (1200), 47.
156	The settlement was enrolled ib., 51.
157	H.T. Riley (ed.), Gesta abbatum monasterii Sancti Albani, 3 vols (Rolls Series, 1867-9), ii, 220-4; the passage is translated by R. Vaughan, Chronicles of Matthew Paris: monastic life in the thirteenth century (Gloucester, 1984), 16-19.
158	Gesta abbatum, ii, 226-8; Vaughan, Chronicles of Matthew Paris, 19-22.
159	Dugdale, Monasticon Anglicanum, iii, 345-6.
160	British Library, MS Cotton Claud. D. xiii, fol. 183v.
161	R.A. Brown (ed.), The memoranda roll for the tenth year of the reign of King John (1207-8), Pipe Roll Society new series 31 (1957 for 1955), 114 – a Curia Regis roll of 1198. There was litigation between FitzWalter and the priory over Bacton church two years later, Sir F. Palgrave (ed.), Rotuli Curiae Regis, 2 vols (Record Commission, 1835), ii, 155.
162	Curia Regis Rolls vi, 55-6.
163	Ib., 133-4.
164	Robert’s having gone to Ireland with the king in 1210 is attested by Hardy, Rotuli de liberate, 203, where he is recorded as receiving a prest at Carrickfergus on 25 July.
165	Curia Regis Rolls vi, 196, 273, 284.
166	S. Wood, English monasteries and their patrons in the thirteenth century (Oxford, 1955), 60.
167	For John’s scrutiny of charters see Holt, Magna Carta, 159-60
168	As is also suggested by Holt, Northerners, 80 n. 5.
169	For the romance I have used the English translation by A. Kemp-Welch, The history of Fulk Fitz-Warine (King’s Classics, London, 1904). For commentary on it see M. Keen, The outlaws of medieval legend (2nd edn., 1977), 39-52.
170	PR 7 Richard I (1195), 246.
171	R.W. Eyton, Antiquities of Shropshire, 12 vols. (1854-60), xi, 32-3.
172	Rot.Ob.Fin., 58, 224; PR 2 John (1200), 175.
173	Rot.Chart., 43.
174	Ib., 74.
175	PR 5 John (1203), 67; PR 6 John (1204), 156.
176	Rot.Ob.Fin., 224; Rot.Lit.Pat., 46.
177	Eyton, Antiquities of Shropshire iii, 106.
178	PR 12 John (1210), 113; PR 13 John (1211), 95.
179	Eyton, Antiquities of Shropshire vii, 74-5.
180	Kemp-Welch, 46.
181	The appearance of the Briouzes in the list of Fulk’s pledges suggests that it was drawn up in the previous year, before the family was ruined by the king. The elder William had previously acted as pledge for Fulk’s opponent Wrennoc. His doing the same for Fulk may be a sign of his moving into opposition to King John, or at least of his responding to the latter’s pressure.
182	PR 11 John (1209), 110-12.
183	The case is discussed by Turner, The king and his courts, 159-60; Painter, Reign of King John, 29-30; Holt, Northerners, 172; id., Magna Carta, 148-9, 156. None of them refer to the charter shown at the 1279-81 Yorkshire eyre. For Cottingham see Sanders, English baronies, 37.
184	N. Vincent (ed.), The letters and charters of Henry II, king of England (1154-1189) (Oxford, forthcoming), no. 2563.
185	Stenton, Pleas before the king or his justices i, 112.
186	For details see Hugh M. Thomas, `Stuteville, William de (d. 1203)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/26754]; Hugh M. Thomas, `Mowbray, Roger (I) de (d. 1188)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/19458]; James Tait, `Mowbray, William de (c. 1173-c. 1224)’, rev. Hugh M. Thomas, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/19461]: all accessed 20 May 2015.
187	PR 1 John (1199), 56; PR 2 John (1200), 109; PR 3 John (1201), 150; PR 6 John (1204), 196.
188	PR 7John (1205), 46; PR 8 John (1206), 195; PR 9 John (1207), 82.
189	PR 10 John (1208), 145.
190	PR 11 John (1209), 130-1, 139.
191	PR 12 John (1210), 152.
192	PR 13 John (1211), 33, 52-3.
193	PR 14 John (1212), 36.
194	Rot.Ob.Fin., 90; PR 2 John (1200), 148.
195	PR 2 John (1200), 147; PR 3 John (1201), 138.
196	PR 4 John (1202), 116 – the debt was cleared in 1206, PR 8 John (1206), 238.
197	Curia Regis Rolls iii, 106.
198	PR 6 John (1204), 243.
199	Curia Regis Rolls iii, 106.
200	PR 6 John (1204), 242; the final payment is recorded PR 13 John (1211), 17.
201	Rot.Ob.Fin., 319; PR 7 John (1205), 236; PR 8 John (1206), 30.
202	Rot.Chart., 158-9.
203	PR 7 John (1205), 249.
204	Curia Regis Rolls iii, 118.
205	PR 2 John (1200), 184.
206	Curia Regis Rolls i, 399; Rot.Ob.Fin., 80.
207	Stenton, Pleas before the king or his justices, 1198-1202, i, 89-90
208	PR 7 John (1205), 89.
209	He had paid all but two and a half marks by 1209, when his remaining debt was transferred to another man – PR 11 John (1209), 147.
210	Curia Regis Rolls vi, 126.
211	Roger’s son Ralph became responsible for paying the rest of his father’s debt in 1224 – PR 8 Henry III (1224), 101.
212	PR 10 John (1208), 59; Curia Regis Rolls v, 96.
213	Curia Regis Rolls vi, 107-8, 111, 257.
214	PR 13 John (1211), 13; William’s last payment, recorded PR 16 John (1214), 49, left him owing seven marks and a palfrey. For William Paynel and his wife see C.T. Clay (ed.), Early Yorkshire charters vi: the Paynel fee, Yorkshire Archaeological Society record series, extra series vii (1939), 272-3.
215	Curia Regis Rolls ix, 1220 (1952), 174-5, 205.
216	Rot.Lit.Claus. i, 262.
217	Holt, Magna Carta, 335-6; Rot.Lit.Claus. i, 237.
218	Rot.Ob.Fin., 79. Courtenay’s wife Alice was a daughter and co-heir of William FitzDuncan, who at his death in c. 1154 held the lordships of Copeland and Allerdale, as well as Skipton in the West Riding of Yorkshire. Another of William’s daughters, Mabel, married Reginald de Lucy. Reginald’s son Richard probably conveyed the disputed property at Caldbeck to the Courtenays in settlement of an inheritance dispute.
219	Rot.Ob.Fin., 95.
220	PR 5 John (1203), 255.
221	PR 6 John (1204), 143.
222	Curia Regis Rolls iii, 117.
223	Rot.Ob.Fin., 273.
224	PR 8 John (1206), 44-5.
225	Curia Regis Rolls iv, 99.
226	PR 8 John (1206), 44.
227	PR 10 John (1208), 44.
228	A.J.L. Winchester (ed.), John Denton’s history of Cumberland, Surtees Society 203 (2010), 58-9 (unfortunately the text of Denton’s account of Caldbeck is seriously defective, but the township is stated to have come to William FitzDuncan’s wife, ib., 108-10); Sanders, English baronies, 134.
229	R.C. Johnston (ed.), Jordan Fantosme’s chronicle (Oxford, 1981), 108-9; PR 22 Henry II (1176), 119; Holt, Northerners, 200-1.
230	Rot.Ob.Fin., 41-2; PR 2 John (1200), 110; his final payment was recorded PR 12 John (1210), 152.
231	Rot.Ob.Fin., 4, 71; R.V. Turner, Judges, administrators and the common law, 279.
232	Curia Regis Rolls i, 215-16.
233	Ib., 241.
234	PR 4 John (1202), 142. William is recorded as having paid a total of £31. 6s. 8d. by 1211, after which his debt ceased to be recorded. For Halnaker see Victoria County History of Sussex iv (1953), 142-3.
235	Book of fees, i, 359, 373.
236	Powicke, Loss of Normandy, 344, 352.
237	W. Stubbs (ed.), Chronica Magistri Rogeri de Houedene , 4 vols. (Rolls Series, 1868-71), iii, 240
238	PR 9 Richard I (1197), 114; PR 10 Richard I (1198), 62.
239	See Holt, Northerners, e.g. 10, 19, 100, 205-6.
240	N. Vincent, Peter des Roches: an alien in English politics, 1205-1238 (Cambridge, 1996), 142.
241	Curia Regis Rolls v, 147-8.
242	Details from Holt, Magna Carta, 104-5, 147.
243	Rot.Ob.Fin., 253; Rot.Chart., 143.
244	Rot.Ob.Fin., 356-7.
245	PR 7 John (1205), 58-9; PR 8 John (1206), 202, 219; PR 9 John (1207), 87, 126.
246	PR 9 John (1207), 71.
247	Holt, Northerners, 46.
248	TNA, JUST 1/180 mm. 3d, 6.
249	Rot.Lit.Claus. i, 277.
250	Stenton, Pleas before the king or his justices, 1198-1202, i, 90-1.
251	Curia Regis Rolls iv, 41-2.
252	Curia Regis Rolls v, 304; vi, 218-19.
253	Rot.Lit.Claus. i, 276.
254	W.W. Shirley (ed.), Royal and other historical letters illustrative of the reign of Henry III, 2 vols. (Rolls Series, 1862-8), i, 20-2.