While the insurgents had been turning the screws on the king, they had also been developing the programme that they wished him to agree to. There is much that is unknown about this process. There were probably many schemes of reform in play at the same time. The scheme found in the Unknown Charter is the only one that survives. In the broadest terms, however, the trajectory seems clear: from the liberties of the kingdom and the laws of Edward the Confessor, on to the Coronation Charter of Henry I, the Coronation Charter with additional demands, the Articles of the Barons and then Magna Carta itself.
ANCIENT LIBERTIES AND THE LAWS OF EDWARD THE CONFESSOR
According to Roger of Wendover, before John was absolved in 1213 he swore to abolish evil customs, judge justly, give everyone their rights and uphold the laws of his ancestors, especially those of Edward the Confessor. Coggeshall too has John swearing to uphold ‘ancient liberties’.1 Respect for ‘ancient liberties’ was likewise the basis of John’s abortive settlement with the northerners in November 1213. Whether these were fleshed out in any detail we do not know. As for the laws of Edward the Confessor, Wendover continues to feature them, with the 1100 Charter, in the baronial demands of 1214–15. The two are also linked together in the Welsh chronicle known as the Brut.2 If John did take an oath in 1213 to uphold the laws of the Confessor, he probably saw it as no more than a generalized promise of good government. But the opposition could regard it as rather more tangible because, as we have seen, there was an actual text of the Leges Edwardi Confessoris. It showed the king accepting the laws of the kingdom as enunciated both by his nobles and by twelve men chosen from each county. The additions made to the London version of the Leges in John’s reign stressed the king’s obligation to govern not by will but by counsel and judgement. Other interpolations in the same collection which would have appealed to local society laid down that exactions in the hundred court were to be reasonable and according to the law of the land.3
The Leges Edwardi were, therefore, well worth laying before the king, yet they hardly restricted his rule in any kind of detailed and effective way. They included nothing at all about relief, wardships, or marriages of heirs and widows, issues that so exercised the barons. Indeed, for the most part, John could probably have agreed easily enough to the actual text. It was not general principles of good rule that his enemies needed to assert (to which John would always give lip service), but the detail of how they should operate. Not surprisingly, therefore, the Leges Edwardi gradually faded into the background. They are not mentioned by the Crowland or Coggeshall chroniclers and even in Wendover’s account are soon eclipsed by the Coronation Charter of Henry I.
THE 1100 CORONATION CHARTER OF HENRY I
The demand that John should confirm the Coronation Charter of Henry I represented a quantum leap in the opposition programme, and this in two ways. First, John was no longer to make just vague promises, for the 1100 Charter covered in detail the treatment of relief, wardships, marriages and widows, issues that the Leges Edwardi so signally neglected. Indeed, on these matters the 1100 Charter directly influenced the order as well as the content of the Articles of the Barons, and thence of Magna Carta, since, in all of them, relief, wardship and marriages come at the start. In addition, the 1100 Charter’s stipulation that penalties should be ‘according to the degree of the offence’ anticipated a similar stipulation (both use the same word ‘modum’ for ‘degree’) in the Articles.4The 1100 Charter might also appeal to knights and under-tenants, since it made concessions to knights (over the subject of the geld) and was specific that the barons should pass the concessions on relief, wardships, marriages and widows down to their men.5 In general, it was far more fit for purpose than the Leges Edwardi.
There was a second way in which the 1100 Charter was instructive, a way obvious but important: it suggested that John should be bound to concessions embodied in a charter. That idea coincided with academic thought, as seen in the writings of Archbishop Langton and the school of Peter the Chanter.6 It also, of course, coincided with long-standing practice, in which kings had made concessions by charter to individuals, towns, counties, ecclesiastical institutions and the church, the most conspicuous example of the last being John’s 1214 charter granting free elections. Many of these grants, moreover, just like Magna Carta, were to be held from the king and his heirs ‘in perpetuity’.7 There was also a well-known European example of a written constitution binding a ruler, namely in Simon de Montfort’s 1212 Statute of Pamiers.8
The importance of the 1100 Charter is shown by the way in which no fewer than four versions, all with slightly different texts, were circulating in John’s reign. One of these was in London; another was at St Albans abbey; another was that copied out with the schedule of additional demands called by historians the Unknown Charter. Another again was translated into French, along with the coronation charters of Stephen and Henry II. Evidently they too were being inspected.9 The fact of the translation shows, of course, the desire to make the charters easily accessible to French-speaking barons and knights. The charters of Stephen and Henry were brief affairs but gave added status to the 1100 Charter that they could be read as confirming. Indeed, the Bury chronicler, narrating the story of his abbot’s election, thought that the whole quarrel in 1215 was caused by John trying to annul the Coronation Charter of Henry I, which his father had confirmed.10
When and how the 1100 Charter entered the political narrative has long been debated. According to Roger of Wendover, it was Langton himself who introduced the barons to the charter at a gathering at St Paul’s cathedral in August 1213. Langton believed in the principle of binding the king to a charter, but there are reasons to be sceptical here about Wendover’s story. While his dating of the St Paul’s assembly is accurate, he himself gives a health warning when it comes to Langton’s role: it is merely ‘as rumour says’.11When Wendover admits that, alarm bells should be ringing. They should also be set off by his further statement that Langton, at this point, joined the baronial confederation and promised, when the moment came, to help fight for its liberties to the death. Nothing in the record of the period suggests that Langton actually threw in his lot with the barons in this way. In contrast, Ralph of Coggeshall, the Crowland chronicler, the Anonymous of Béthune and the Brut have the 1100 charter appearing on the scene a year later, after John’s return from France, and none of them associate Langton with it.12 There was certainly a copy of the Coronation Charter in the Canterbury archives, but there was no need for Langton to produce a text in some magical way, since, as we have seen, other copies were about. While the translation of the 1100 Charter mentioned above comes from a text like that at Canterbury, there are reasons to think that this version originated at Westminster, since it interpolates into the witness list the name of Westminster’s abbot, Gilbert Crispin.13 Canterbury, moreover, apparently had no copy of the coronation charters of Stephen and Henry II, which were also translated, while both of these were to be found in London.14 Probably Wendover knew no more than that the 1100 Charter came onto the agenda at some point before 1215, and decided to pin it on Langton and the 1213 council. One cannot rule out the possibility that Langton drew attention to the 1100 Charter but his doing so was neither as dramatic nor as decisive as Wendover makes out. As for the timing, my view, like Holt’s, is that the 1100 charter was only seriously pressed on John after his return to England in October 1214.15 It is at this point, by the same token, that the more general idea of binding John to a charter enters the discourse.
For all its utility, the 1100 Charter was no total solution to the problem of 1215. Much of it was out of date. It dealt with geld, now more or less obsolescent (it is not mentioned in Magna Carta), and said nothing about scutages and aids. It directed that the forests were to be kept as under William the Conqueror, but how did that relate to the forests under John? And what was the use, save as an example, of the chapter that pardoned (with some exceptions) all debts owed to William Rufus?16 There was also a whole range of concerns about law, legal administration and local government with which the 1100 Charter did not deal at all. More was needed.
THE UNKNOWN CHARTER
One attempt at providing more is seen in the document called by historians the Unknown Charter.17 Here twelve additional concessions allegedly made by King John were appended to a copy of the 1100 Charter. Since it is certain that John never made the concessions in question, what we have here are essentially a series of demands which were being canvassed by John’s opponents. It is a pity that the Unknown Charter cannot be dated, for it would help show just when the programme was moving beyond the 1100 Charter. A good case can be made for thinking that this was quite early, precisely because the 1100 Charter is so inadequate. That the Unknown Charter has nothing about London suggests it pre-dates the fall of the city on 17 May 1215. That it starts by making John agree not to arrest anyone without judgement suggests it may pre-date his promise to that effect issued on 10 May. Such a demand would fit well with the New Temple meeting in January, when John’s opponents must have feared violent retribution. If the demands in the Unknown Charter were put to John at the New Temple, one can easily understand why he dismissed the baronial proposals as ‘novelties’.18
The Unknown Charter was drawn up very much with reference to the 1100 Charter. Thus it too has the issues of relief, wardships and marriages at the start, and echoes its phraseology about wills.19 But where it covered the same ground it brought the provisions up to date in ways that often anticipated the Articles of the Barons and Magna Carta. Thus heiresses were now to be married ‘without disparagement’; widows were to stay in their late husband’s house for forty days while their dower was assigned them; relief was not to be charged if the estate had been in wardship; and property held in wardship was not to be pillaged.20
In other areas, the Unknown Charter went beyond the 1100 Charter altogether. Thus John, right at the start, promised to arrest no one without judgement, to receive nothing for doing justice and to commit no injustice, the essence of the Charter’s most famous chapters. The penultimate chapter, again anticipating the Articles and Magna Carta, laid down that interest on debts owed to Jews was not to accrue in a minority. The Unknown Charter also dealt with the highly contentious issue of overseas service, stipulating that it was only due in Normandy and Brittany – so not in Poitou as in 1214. The next chapter fixed scutage at one mark per knight’s fee, as opposed to the three marks John had taken in 1214. These were radical demands, as was the chapter on the royal forest, which directed that everything made forest by John, Richard or Henry II was to be deforested. This was to virtually to remove the royal forest from large parts of the country.
These demands clearly form an important bridge between the 1100 Charter and the Articles of the Barons. Holt points out that seven chapters of the Unknown Charter have corresponding chapters in Magna Carta.21 Arguably, a better figure is nine because the grievances over scutage, and indirectly over overseas service, were in some ways met in Magna Carta’s chapters 12 and 14. The Unknown Charter, however, had nothing on London, towns and trade. It had nothing on grievances of the Welsh and the Scots. It had nothing on redress of past injustices or how the concessions might be enforced in the future. It had nothing about the workings of the common-law assizes and the running of local government. Under-tenants would have welcomed the restrictions on scutage and the privileges granted to ‘knights’ within the royal forest, but the Unknown Charter appears, for the most part, a narrowly baronial document. John is said to make the concessions to ‘my barons’ or to ‘my men’, so to his tenants-in-chief.22 There is no statement that the concessions are to be passed on by the barons to their own men. When we reach the Articles we are in a different world.
THE ARTICLES OF THE BARONS
The advance in the opposition programme between the Unknown Charter and the Articles of the Barons is nothing short of sensational. The Unknown Charter has twelve chapters. The Articles of the Barons has forty-eight, followed by the lengthy security clause (chapter 49). The Unknown Charter had no input into the phraseology of the eventual Charter. The Articles are the foundations for it as they are also of its order. Indeed, they were drafted with the eventual Charter in mind since it is referred to, in chapters 1 and 49, on three occasions.
The Articles covered a much broader range of issues than both the Unknown Charter and the Charter of 1100. Legal procedures, local government, London, towns, merchants, the king of Scots and the Welsh all appear as issues. Scutages and aids had now to be levied with the common consent of the kingdom. A great deal of thought has gone into the question of enforcing the concessions, with twenty-five barons in the security clause being empowered to do so. Thought has also gone into the redress of past grievances, thus opening up a highly contentious area. Under chapter 37 of the Articles, amercements, and fines for dowers, inheritances and ‘maritagia’ (meaning both marriage portions and marriages), made unjustly and against the law of the land were to be completely remitted, or the issue was to be decided by the judgement of the twenty-five barons of the security clause, along with Archbishop Langton and those he wished to bring with him. This dealt with the grievances of widows, forced to offer large sums to gain their dowers, marriage portions and inheritances. It covered the gigantic fine of Geoffrey de Mandeville to marry Isabella, countess of Gloucester. And it covered all the fines, some colossal in size, for inheritances which John had exacted in place of reasonable reliefs. The Articles also sought to remedy unjust disseisins. Under chapter 25, those disseised by John without judgement of lands, liberties and rights were to have their property immediately restored, something of relevance to a great many of the insurgents. If there was any dispute, it should again be submitted to the twenty-five barons. As for those disseised by Henry II or Richard, they were to have judgement without delay by their peers in the king’s court, unless, that is, John secured the exemptions of a crusader, in which case judgement would be passed by Langton and the bishops.
The very fact of the Articles testifies to the cohesion of the opposition. It had held together and combined what were probably many schedules of grievance into a single powerful document. The Articles are undated and just how they came into being is difficult to say. The ‘schedule’ that the barons sent to John from Brackley in Northamptonshire on 27 April, demanding it be sealed (as the Articles of the Barons eventually were sealed), may have been an early draft.23 Quite probably, John engaged seriously with the Articles from 25 May, when he gave Saer de Quincy a safe conduct to come and treat about peace. As we will see in the next chapter, there are reasons for thinking that the king sealed the final version on 10 June at Runnymede, thus indicating his acceptance of the Articles as the basis for the coming settlement. How the opposition moved from a document like the Unknown Charter to the Articles is unclear, but quite probably the demands grew as the confederation grew. Indeed, to some extent one can see that happening. The chapters on London and merchants have the appearance of being inserted into an existing document, presumably after the baronial seizure of the capital in May 1215. In chapter 9 on amercements, therefore, the section on merchants is tagged on at the end after villeins, an order, defying social status, that was reversed in Magna Carta.24 Likewise, the issue of London’s tallages was added, quite logically, to the end of chapter 32 on taxation, while the chapters on merchants, and on entry and exit from the kingdom, were put either side in what became chapters 31 and 33. The chapter on getting rid of the fish weirs from the Thames and Medway, which replicated concessions made to London in royal charters, was inserted more randomly as chapter 23, where it broke up what would have been a coherent section dealing with the king’s administration of justice.
That the chapters on the Welsh and the king of Scots come very near the end of the Articles suggests they too were added after the barons had made their alliance with the Welsh rulers, and had come to an understanding with Alexander. The importance of the Welsh alliance is reflected in the substantial nature of the concessions demanded. Under chapter 44, Welshmen disseised by John of their lands, liberties or rights in England or Wales were to be immediately given them back ‘without plea’, which meant without any challenge. Here they had done better than their English counterparts, for whom (in chapter 25) the possibility of a challenge, obviously by John, was recognized. Chapter 44 went on to say that Welshmen who had been disseised ‘without judgement of their peers’ by Henry II or Richard were to receive justice in the same way as the English, which meant under the procedure set out in chapter 25 – although this was to be according to the law of England, Wales or the March, depending on where the lands were situated. (The March was the borderland between Wales proper and England.) Chapter 45 directed that Llywelyn’s son, taken under the terms of the treaty of 1211, was to be returned, as were all Welsh hostages and charters of security. Here, however, there was a qualification, for John evidently claimed that under his charters (presumably those covering the treaty of 1211) he was not bound to make these restorations. His claims here were to be decided by Langton and those he wished to bring with him.25
As for King Alexander, in chapter 46 John promised to treat his liberties and his rights ‘according to the form’ in which he was going deal with ‘the barons of England’, although here too there was the qualification about whether things should be different because of the charters that John possessed. John’s newly discovered account of the 1209 Treaty of Norham gives these stipulations fresh meaning. Under the treaty, John was expecting Alexander to do him homage for the kingdom of Scotland. The implication of the Articles of the Barons, by contrast, was that the treaty was dead. The only relationship that Alexander now had with John was as another baron of England. Thus the liberties and rights that Alexander was seeking, one may suspect, concerned not Scotland itself, but his claims to the three northernmost English counties, claims which had been reserved under the 1209 treaty. He was now seeking to hold the counties from the English king, like any other baron. Since Alexander’s claims were to be treated like those of the other barons of England, that meant, under the Articles’ chapter 25, they would be judged either by the twenty-five barons or by Alexander’s peers in the king’s court.26 The chapter on Alexander also dealt with his hostages, which were almost certainly those taken to guarantee the 1209 treaty. These too were now to be treated like those taken from English barons, which meant, under chapter 38, that they were to be returned. Here too the saving clause applied: ‘unless it should be otherwise by the charters which the king has’. John evidently was trying to assert that the 1209 treaty still had validity.
Most important of all, in moving from a largely baronial document such as the Unknown Charter, was the influence of the knights who were joining the rebel army in large numbers and obstructing the king’s agents in the shires. Knights were steeped in the workings of the law, and had plenty of experience in extracting concessions about the running of local government from the king. They could draw inspiration from the Coronation Charter of Henry I, with its direct concession to knights over geld. Indeed, the version of the Coronation Charter most closely linked to the demands of 1215, that attached to the Unknown Charter, is one which includes a blatant appeal to the knights. Henry, in making his concession over geld, hopes that ‘as my kindness is the more felt by them, so they may be faithful to me’.27 Some knights may have known of the twelve men in each county declaring the law in the Leges Edwardi, and the interpolations in the same London collection about the exactions in local courts, and the sheriffs being elected ‘in full folkmoot’.28 Further afield, King Pedro had conceded that his officials in Catalonia should be elected knights.29 Knights also had experience of extracting concessions from their lords, as the charter of Peter de Brus shows. There was also the example of the 1100 Charter where the barons were to pass on the concessions over relief, marriages and widows to their men.
Viewed from this perspective, the knights would have seen a document like the Unknown Charter as deeply disappointing. They must also have had reservations about the first chapters of the Articles of the Barons, which dealt with relief, wardship, marriage of heirs and the rights of widows. These completely lacked the injunctions about barons passing down the concession to their men found in the equivalent chapters in the Coronation Charter of Henry I. True, the Articles simply refer to ‘heirs’ and ‘widows’ without any indication of their tenurial status, so they could be taken as referring equally to tenants-in-chief and under-tenants. But that the chapters on relief and wardship were intended to apply to the relationship between the king and his tenants-in-chief was shown by the way they were redrafted at Runnymede. Barons may well have wanted the same to be true of the chapter on the marriage of heirs, since in the Articles it had been part of the wardships chapter. Baronial concern to control their tenants is revealed in the way a chapter in the Articles was redrafted. This was chapter 17, which prevented a widow being forced into remarriage. It was certainly aimed at both king and lords, and for that reason provided a safeguard for both. It thus insisted that a widow needed to get the consent of the king, or the lord from whom she held, if she wished to remarry. This chapter seems out of place in the Articles, where it comes after chapter 16 on wills, rather than more logically after chapter 4 about the rights of widows over their properties. Probably, the chapter had initially lacked the saving clause and, when redrafted to include it, dropped out of its original place. In Magna Carta it was put back there.
If knights were indeed disappointed with the early schemes of baronial reform, there may well have been parallels in 1215 with events at the revolutionary parliaments of 1258–9. At Oxford in 1258, the great men had likewise mustered with large numbers of knights, and that explains why the so-called ‘Petition of the Barons’ in fact covered far more than baronial interests.30 At the Westminster parliament of October 1259 a body of knights, described as ‘the community of the bachelry of England’, protested that the barons had only looked after their own interests and done nothing for ‘the utility of the republic’. The result was the speedy publication of the Provisions of Westminster, with their early clauses dealing with grievances of under-tenants about being forced to attend the courts of their lords.31 Was it comparable knightly pressure that shaped the nature of the Articles? Thus, after the chapters on relief, wardships and marriages, come a series of consecutive chapters, beginning with chapter 6, dealing with the interests of under-tenants, sometimes as against their lords.32 One reads chapter 6 with a start. After all, the heading of the Articles is ‘these are the chapters which the Barons seek’. Yet chapter 6 is specifically aimed at ‘the baron’. The king is not to give him permission to take an aid from his free men save on the three specified customary occasions. What on earth is going on? The answer most probably is that this was a chapter on which knights and under-tenants insisted. Chapter 7 was in the same vein and laid down that no one was to do more service for the fee of a knight than was owed: a general statement, but clearly very much in the interest of under-tenants against their lords. Chapter 8 moved on to the major concern of knights and free tenants over the working of the common-law assizes, and called in the knights elected by the county court to sit with the king’s judges. And then came the chapter on amercements, beginning with those levied on free men. How little the earls and barons were concerned with these chapters is shown by the way they were not mentioned at all within them. A special chapter about the amercements imposed on earls and barons had to wait until Runnymede.
After the chapters on amercements in the Articles, there follows a run of chapters, between 11 and 21, very much in the interests of knights and under-tenants, for they dealt with local government and local officials. Here chapter 14 banned the increments above the farms of the counties (and by implication too the whole policy of profits), thus echoing the concession that the men of Somerset and Dorset had obtained from the king. The same chapter stipulated that the sheriffs were not to interfere with pleas of the crown without the coroners. The provision thus focused, not on the abuse of the sheriffs hearing the pleas of the crown instead of the king’s judges, but on their ignoring the coroners, whose job it was to keep a record of crown pleas, as well as hold inquests on dead bodies. Since coroners were county knights, probably elected by their fellows, the Articles were making sure the sheriffs did not here escape local supervision.33 Only one of these chapters (chapter 16) had any equivalent in the Unknown Charter, and that was now made socially more comprehensive. Dealing with those who died intestate this chapter benefited ‘any free man’, whereas in the Unknown Charter (chapter 5) the benefit had only been for tenants-in-chief.
Knights and under-tenants were also protected against both king and lords by chapter 28 on accusations by bailiffs and chapter 29, which preserved a free man from arrest and disseisin save by judgement of his peers or by the law of the land. It was only in the second part of the chapter, when it came to ‘going against’ anyone, that it became simply a promise made by the king. Chapter 30, forbidding the sale, delay and denial of justice, was similarly general in its application. Both chapters contrasted with their equivalents at the start of the Unknown Charter, which only concerned the conduct of the king. Other chapters in the Articles benefited knights and under-tenants more directly. Thus chapter 27 ensured that free men did not lose the privileges of knighthood because they held some kind of non-knightly tenure. Chapter 34, which prevented interest on Jewish debts accruing in minorities, plainly embraced under-tenants, for it concerned the heir ‘from whoever he holds’. It was again much broader than the equivalent chapter in the Unknown Charter, chapter 11, which was limited to tenants-in-chief. Chapter 35, which ensured that widows and children were still provided for when Jewish debts were paid during minorities, likewise applied to under-tenants, so much so that here lords put in another safeguard. Such debts were to be paid ‘saving the service of lords’. Chapter 36 protected the knightly under-tenants in honours, such as Wallingford, that were in the king’s hands.
In the Articles another run of chapters on local government began with chapter 39. This chapter itself limited the range of those who had to appear before the justices of the forest, and then went on to commission the inquiry of the twelve knights in each county into the abuses of the king’s officials. The inquiry placed tremendous power in the hands of the knights. They were not simply to inquire into what was wrong; they were also to put it right. And they were to be chosen not by the barons, but by the county court.34Chapter 39 is followed by another chapter of concern to knights and local society. This dismissed the relations of Gerard d’Athée, who were sheriffs of Gloucestershire, Herefordshire, Nottinghamshire and Derbyshire. We have seen how this chapter must have pleased the rebel knight William de Mara, arrested by Gio de Cigogné for bad-mouthing King John. Athée’s clan were also military experts, so the next chapter called for the dismissal of all the foreign soldiers whom John had brought to England. Then the Articles returned again to local issues, and laid down that sheriffs and other officials should know the law of the land and mean to observe it. Since such a law might vary according to the region, the chapter carried the implication that the sheriff should be a native of his county.
The Articles concluded in chapter 48 by stating that everyone should observe towards their men those liberties which the king was giving to his men. All the concessions, therefore, were to be passed down to under-tenants. The chapter thus provided some compensation for the absence of any similar injunctions within individual chapters earlier in the Articles. No equivalent statement is found in either the Coronation Charter or the Unknown Charter.
Knights certainly got less than they might have hoped for from the Articles. The stipulation that the sheriffs should know the law of the land was something, but a poor substitute for the concession, bought from John by some counties, that they should be local knights. There was no suggestion that the sheriffs should be elected by the county court, although such elections were conceded when it came to the knights in chapters 8 and 39 (chapters 18 and 48 in the eventual Charter). Knights and under-tenants were also given no opportunity in either the Articles or the Charter to complain about their lords, whether to the twelve knights in each county or to the twenty-five barons of the security clause. The opportunity to make such complaints, along with locally elected knightly sheriffs, had to wait until the reforms of 1258–9.35 Nonetheless, even with these qualifications, the baronial demands, as represented in the Unknown Charter, had been transformed. The Articles were far more representative of the wider realm.
The Articles were a fair copy, but the clerk may well have been working from a difficult document with interlineations, and attachments, produced by the additions and changes we have described. He may sometimes have failed to see where a clause should go. He may sometimes have made his own decisions about both the sequence and the breaking up into chapters, as when he tacked onto chapters 14, 35 and 39 new sections with a rather uneasy ‘and that’.36 There was a logic to much of the arrangement, especially in the first half of the document, although Magna Carta improved upon it. Thus the chapters on amercements lead naturally to the chapters between 11 and 21 on local government, since the first here was about the amercements of villages for failure to perform bridge work. The intention to do something about measures at chapter 12 may have come at this point because of the amercements imposed on local communities when the measures were false.37 One puzzles as to why chapters 29 and 30, demanding judgement by peers and forbidding the sale and denial of justice, appear relatively low down in the Articles, and thus likewise in Magna Carta, whereas in the Unknown Charter they come first. Perhaps the Articles wished to follow the 1100 Charter and thus began with reliefs and wardships. Perhaps the chapters dropped from their original place because of debates over wording. Whereas John’s letter of 10 May, as an alternative to judgement by peers, mentioned treatment ‘by the law of our kingdom’, the Articles, more evocative and independent of the king, have treatment ‘by the law of the land’. There were to be further changes to both chapters at Runnymede itself.
THE INPUT OF KING JOHN
Holt has suggested that the Articles were ‘not produced in a purely baronial gathering but by both sides in concert’. Indeed, they were ‘the work of a small committee slowly reaching common ground over a period of a fortnight’.38 Assuming that serious negotiations began on 25 May, when Saer de Quincy was given his safe conduct to treat of ‘peace’, there was certainly time for such work before John, probably on 10 June, agreed to the Articles as the basis for the final settlement. But there was not much common ground. True, there were parts of the Articles that John might see as advantageous. He had much to gain from making common-law litigation more accessible, for he could thus win the favour of knights and free tenants. For the same reason, he might welcome the stipulation that everyone must pass the concessions down to their own men. In getting such chapters into the Articles, knights and free tenants should have had John’s full support. These, however, were small compensations. John must have regarded the great bulk of the Articles as utterly unpalatable. He had originated none of the proposals. The heading of the Articles was quite right. ‘These are the chapters which the Barons seek and the lord King concedes.’ John was engaged essentially in an exercise of damage limitation. Here he achieved something, but far less than he might have hoped.
In the area of damage limitation, John scored one major victory. The Unknown Charter had demanded the deforestation of whatever Henry II, Richard and John had made forest. Here it was the afforestations of Henry that counted most. Yet the Articles of the Barons said nothing about Richard and Henry, and only called for the removal of John’s afforestations. That the subject was long disputed may explain why the chapter about John’s afforestations is at the end of the Articles, as though until the last moment the barons hoped for more.
In some other areas, John seems to have modified the detail of the demands. The Articles accepted that his charters might affect the restorations due to the Welsh and the king of Scots (chapters 45 and 46); that redress for those disseised by Henry and Richard might be affected by his privileges as a crusader (chapter 25); and that John might challenge whether disseisins, fines and amercements in his time were unjust (chapters 25 and 37). In all these cases procedures were set up to deal with such contingencies. The Articles exempted John’s demesne manors from the restrictions on county revenues (chapter 14). They left the size of relief to be decided in the Charter, presumably because there had been no agreement about it. John won a victory when it came to wardships. The Unknown Charter had demanded that they be run by four knights of the fee. Although the knights were to answer for the issues to the king, this still meant that he could neither sell wardships nor exploit them through his own agents. The Articles of the Barons, by contrast, left John quite free to give wardships to whom he liked, only saying that the guardians should lose them if they committed waste. John won another victory, although it was a pyrrhic one. The Unknown Charter had banned service overseas save in Normandy and Brittany, and had fixed the rate of scutage at one mark per knight’s fee. Neither of these demands appeared in either the Articles or the Charter. Yet that on scutage was unnecessary, because it had been replaced by a far more radical demand. The Unknown Charter had allowed the king to levy a scutage higher than a mark ‘by counsel of the barons of the kingdom’. In the Articles, this was transformed into the demand that no scutage was to be levied at all save by the kingdom’s common counsel. Magna Carta went on to make clear that this counsel covered the rate as well as the incidence of scutage. The barons had thus gained total control of the tax. That was certainly a grievous intrusion into the rights of the crown, since the king had hitherto levied scutage without any consent, deeming it due under the tenurial obligations of his tenants-in-chief, if they did not send their actual military service. The chapter in the Articles (32) also had a bearing on overseas service. John was not stopped from demanding this, but the barons did gain the power to prevent him levying a scutage to support it, which, in practice, came close to the same thing. These defeats were grievous enough. They paled into insignificance beside the monstrosity of the security clause.
THE SECURITY CLAUSE
Having set out John’s concessions, the Articles left a four-line gap and then continued, ‘Here is the form of the security for the observation of the peace and the liberties between king and kingdom.’ The gap has led to the idea that the security clause, as it is called by historians, was initially intended as a separate document, but this was certainly not the case by the time of the Articles, for they leave a detail in the clause to be settled ‘in the charter’.39
The security clause was indeed momentous. It represented by far the most revolutionary, as also the most original, part of the Articles and the eventual Charter. John’s detailed concessions could all be seen as extensions of those made by Henry I in 1100. There was no way the security clause could be seen in that light. The form of its coercion of the king had no precedent. V. H. Galbraith was right to say it represented ‘the most fantastic surrender of any English king to his subjects’.40 It was seen in those terms at the time. The Anonymous of Béthune (whose patron at this point was on John’s side) thought there were good things in the Charter, but described with astonishment (and with some exaggeration) the powers assumed by the twenty-five barons. While not referred to specifically, such powers underlay the comments on the events of 1215 made in a contemporary poem copied into the Melrose chronicle. This acknowledged John’s tyrannical rule, but nonetheless began by saying that:
England has ratified a perverse order;
Who has heard such an astonishing event be asserted in verse?
For the body aspired to be on top of the head;
The people sought to rule the king.41
Under the terms of the security clause, the barons were to choose twenty-five of their number. These were, as the Articles had already indicated, to sit in judgement on the king’s unjust disseisins, fines and amercements, if there was any dispute over their immediate reversal. In the security clause itself, the twenty-five were given a wider brief. This was to ensure, with all their strength, that ‘the peace and the liberties which the king has conceded and confirmed in his charter’ were observed. If the king or his ministers offended ‘anyone in anything’ or transgressed any of the ‘articles of peace or security’, the victims were to complain to four of the twenty-five. The four would then bring the complaint before the king. If he did not redress the grievance, with a term to be decided in the Charter, then the four were to go to the rest of the twenty-five, and the twenty-five, ‘with the commune of all the land’, would then distrain and distress the king in every way they could, namely by taking his castles, lands and possessions, until the wrong, in their opinion, had been righted. At that point, everyone would obey the king as before. The clause then went on to explain the oath that would form ‘the commune of all the land’, before returning to the twenty-five and dealing with substitutes, majority verdicts and an oath of office. Finally, summing up the total distrust which made the whole clause so necessary, there was the stipulation that John should give security, through charters of the archbishop, the bishops and the papal representative Pandulf, that he would seek nothing from the pope which would overturn the agreement.
One striking feature of the clause, rarely commented upon, is that it gave the twenty-five a broader remit than simply that of enforcing the Charter. They were also to hear complaints if the king or his ministers offended ‘anyone in anything’. This extraordinary provision meant they could take cognizance of anything they liked, and gave them virtually a permanent brief to monitor the activities of royal government. Voices were evidently raised to give the twenty-five even more power. The Anonymous of Béthune thought they were to choose the ‘bailiffs of the land’. One draft of the Charter had them choosing the castellans of strategic castles.42 John evidently beat that off, but what was there was bad enough. True, if the king did offend, then the procedure gave the chance of reform. When the four barons brought the complaint to his attention, he would have the opportunity to put matters right. If, however, he failed to do so, ‘within a reasonable time to be determined in the Charter’, there were no similar stages in the ratcheting up of punishment. Their whole weight crashed down at once on his head. Whereas chapter 5 of the Articles laid down that John’s debtors should be distrained first by their chattels and only if that failed, by their lands, in the security clause the twenty-five were to seize at once the king’s castles, lands and possessions. It was, moreover, entirely up to the twenty-five to decide when John had put matters right, and everyone could obey him as before.
To enforce all this, the twenty-five enlisted the ‘commune of all the land’. This was formed by an oath to be taken by everybody, which is why ‘communitas’ in the Latin is always translated as ‘commune’, meaning a sworn association. The oath was itself astonishing. Unlike the later oath of 1258, which was to uphold the reforms of that year, it was an oath, not to uphold the Charter, but to obey the orders of the twenty-five in harming the king. The oath thus established the twenty-five in a permanent relationship with the people of the kingdom, with the oath of loyalty to them standing now alongside the oath of loyalty to the king. Another corollary was that anyone who broke the oath could in effect be accused of breaking faith to the twenty-five and be liable to attack in body, lands and chattels. This indeed was precisely what John’s northern agent, Brian de Lisle, was threatened with later, if he refused to obey a judgement of the twenty-five returning Knaresborough castle to Nicholas de Stuteville.43 Truly, John was now to be only half master in his kingdom.
The significance of the oath is shown by the curious double-handed provision over its swearing. One could either do so voluntarily, or be made to do so by the king. On the face of it, the barons were here taking a remarkable risk, for a common way of nullifying an oath was to say it had been taken under duress. There was no similar provision over coercion in the oath of 1258.44 That the barons nonetheless ran the risk shows the importance which they attached to getting everyone to swear. They hoped, of course, since the oath had to be sworn anyway, it would be sworn voluntarily. They were also asserting something about the sheer status of the oath. It was in effect being made a condition of belonging to ‘the land’. In was thus absolutely on a par with the oath of fealty taken to the king, which likewise everyone had to swear, willingly or not, to be a member of the kingdom.
A chief aim of the security clause was to enable the twenty-five and the commune of the land to attack the king without any taint of treason. In other words, they had the legal right to attack John’s possessions while the king had no legal right to do anything in return. Since John had sanctioned their actions, they would not be breaking their oaths of fealty to him. There was no need now to issue any kind of formal defiance. Yet while the security clause clearly worked legally, it is hard to see how it could work practically. The idea that John would sit quietly by while his lands were seized, and his castles besieged, was fanciful, as was the idea that afterwards everyone would obey him as before. Many historians have thus seen the clause as impracticable, which is to miss the point. The security clause was conceived from the start as the medieval equivalent of a nuclear deterrent. The point was to threaten John with such massive and immediate retaliation that complaints brought to his attention were bound to be redressed. If they were not, the security clause had already failed. At the very most, it would help justify baronial action against the king. Even that possibility, when it came to it, the barons did not exploit. When John reneged on the Charter, they turned to an altogether different remedy and chose another king.
Underneath the umbrella of the security clause’s deterrent, the barons had every intention of making the twenty-five do their work, hence the rules about majority verdicts and the election of a new member if one died. This was to be no temporary commission. Indeed, it would last as long as the Charter itself, and since that was to be in perpetuity, the twenty-five were to have a permanent place in the life of the kingdom.
How then was this remarkable plan of coercion and redress conceived? That is not easy to say, for it is so original. There is nothing like it earlier not merely in England but further afield. Here there are no parallels in Spanish jurisprudence.45 The most likely explanation is that the security clause was indeed an original conception of the opposition, bringing together a series of different threads. The process of petitioning the king to put right acts of injustice, either committed by himself or his predecessors, was well established. John himself responded to such complaints, sometimes after a judicial inquiry. It was thus that he righted a disseisin of King Richard, and cancelled one of his own charters which he had been deceived into granting.46 Equally well established were ideas about barons sitting in judgement; that after all was what was involved in judgement by peers. The monitoring role of the twenty-five also had parallels with the councils found in town constitutions. Under the charter John granted to Northampton, four men of the borough, chosen by common counsel, were to ensure that the provost, the chief town official, treated justly both poor and rich alike.47 In 1200 twenty-five Londoners were elected to counsel the mayor.48 In 1206 John himself ordered the barons of London to elect twenty-four of their fellow citizens to carry out reforms. The oath the twenty-four took still survives.49 As for ‘the commune of all the land’, formed by a general oath, that was clearly modelled on ‘the commune of the kingdom’ formed to resist invasion by the oath of 1205.50
The idea of legitimate resistance had itself many roots. It was a familiar part of the debate in monastic communities when they were quarrelling with their abbots. At Evesham in John’s reign, the monk Thomas of Marlborough observed that while civil and canon law forbad subordinates from bringing accusations against their superiors, they were allowed to do so in certain circumstances. He then went on to bring a series of charges against his licentious abbot.51 In the secular world, it was, as we have seen, accepted that a vassal, suffering acts of injustice, might renounce his allegiance and make war on his lord. This was closely related to the idea of ‘legitimate feud’, where there was the necessity for a just cause, a proper complaint, the opportunity for the offender to make reparation, and where ‘the proper goal was a restored balance of some kind’.52 In Magna Carta, however, there is no need for any act of defiance, resistance being sanctioned by the king himself in the law laid down in the Charter. The appeal to law can be seen in a case from the kingdom of Jerusalem. In 1198, when Ralph, lord of Tiberias, was accused of treason by the king, he claimed protection under a law known as the ‘Assise sur la ligece’, and demanded a judgement by his peers in the king’s court. When this was refused, his peers withdrew their service from the king and offered to maintain Tiberias in his rights.53 Admittedly, the offer of support to Tiberias never materialized, and it is unclear what it was supposed to involve. It was not in itself sanctioned by the ‘Assise’, of which Tiberias was advancing only one possible interpretation. Nonetheless, in this case resistance was being justified in the light of what was at least alleged to be a written law. A closer parallel to Magna Carta comes from Hungary, for here resistance was indeed legitimized by the king in his own charter. The thirty-one chapters of the Golden Bull, issued by King Andrew II in 1222, dealt with such issues as inheritance, dower, local officials, taxation, dispensation of justice, national assemblies, military service outside the kingdom, and arrest and ‘destruction’ (the same word as in Magna Carta) without lawful process. At the end, the king conceded that if he or his successors acted contrary to the concessions, then ‘by the authority’ of the bull, the nobles had the right to resist and contradict him and his successors ‘without stain of infidelity’.54 Unlike Magna Carta, the Golden Bull gave no details about the nature of the resistance envisaged, so its sanctions were much weaker than those of the security clause.55 Nonetheless, resistance, if the king contravened his concessions, was here being permitted by the king himself. There were connections between England and Hungary in the early thirteenth century and Magna Carta may well have influenced the Golden Bull. It was probably also a case of similar problems spawning similar solutions.
In England, there was before 1215 at least the idea that magnates had a duty to restrain or limit the king. Gervase of Canterbury thought that ‘the magnates of England’ had done that in 1205 when they ‘compelled’ John to take an oath to preserve the rights of the kingdom ‘with their counsel’.56 In the great book on the laws and customs of England known as Bracton, largely written in the 1220s and 1230s, two views about resistance were canvassed. One was that the king must be left to the judgement of God. The other was that the ‘universitas’ of the kingdom should correct his acts of injustice ‘in the king’s own court’. An even more extreme statement was that the barons ought to ‘put a bridle’ on a lawless king. There was no suggestion that if this happened they ought to defy him and withdraw their allegiance. These sentiments were prompted by the 1233–4 rising against Henry III, a rising in defence, it could be thought, of Magna Carta.57 The judge William of Raleigh, who was probably responsible for this passage in Bracton, was a protégé of the Pattishall dynasty of professional judges. In May 1215 Simon of Pattishall, John’s senior judge, had his lands seized for joining the rebels. He protested his innocence, but did not make his peace until the following December.58 Pattishall had material reasons for flirting with the rebellion, but one wonders whether his views on Magna Carta and the security clause laid the foundations for Raleigh’s sentiments about the events of 1233–4.
In sum, the security clause drew on procedures for petitioning the king, the principle of judgement by peers, the monitoring activities of town councils, the 1205 ‘commune of the kingdom’, and the violent actions that followed acts of defiance. But that violence was sanctioned not by any ‘diffidatio’ but by the king himself in his own charter. Whereas defiance was potentially a one-way process, for the king had no obligation to accept that it legitimized resistance, now he was bound to accept that resistance was legitimate, for he had sanctioned it himself in his own charter. That was the original trick that made the security clause so empowering.
Why finally the number twenty-five? There was some precedent here in the London council of 1200. The London council of 1205 was likewise twenty-five if the mayor was included. Twenty-five involved a goodly number of barons, and ensured (if they all turned up) that decisions could be taken by a majority, as the clause envisaged. It was, therefore, better than the even number of twenty-four, although that was a familiar number in some legal and biblical contexts. The number twenty-five also featured in biblical exegesis, although not always favourably.59 Augustine, in a well-known homily, commenting on passages in St John’s Gospel, argued that the number twenty-five signified the law, although he then went on to say that this law lacked perfection as it preceded the Gospel. In fact, thirty was the perfect number. The number twenty-five would hardly have appealed to Archbishop Langton. He equated the twenty-five men ‘with their backs toward the temple of the Lord’ in Ezekiel (8:16) with the carnal priests who rejected Christ. This is but one of many indications that Langton had little to do with the Articles of the Barons.
THE ROLE OF ARCHBISHOP LANGTON
Historians have long debated the role played by Archbishop Langton in shaping opposition demands between 1213 and 1215. On the one hand, he is seen as introducing the barons to the Coronation Charter of Henry I, having a major input into the Articles of the Barons and being responsible for the way the Charter reaches out beyond the selfish ambitions of a baronial elite. On the other hand, led by Holt, he has been seen largely as a peacemaker and go-between. There are persuasive reasons for thinking that the second view is the more correct.60
There is no doubt that Langton’s political ideas put him in general sympathy with the Charter.61 He had practical experience of John’s tyranny, having seen his Canterbury estates ravaged in the Interdict. He knew the evils perpetrated by Gerard d’Athée’s kin, having lamented the ‘violence and great oppression’ of Engelard de Cigogné as sheriff of Gloucestershire.62 Langton may well have inspired the oath that John took at the time of his absolution to respect ancient liberties and customs. In 1213 all accounts agree that the archbishop urged John not to proceed against the northerners without judgement and lawful process. On the other hand, there are, as we have seen, good reasons for doubting Wendover’s story that Langton introduced the barons to the Coronation Charter at St Paul’s in 1213 and became a ‘capital consenter’ to the baronial league thereafter.63 Whether or not he had any role in circulating the charter, the clear testimony of the Crowland and Coggeshall chronicles is that, in 1215, Langton was essentially an intermediary between the two sides. John’s complaint against him, echoed by the pope in plaintive letters, was that Langton had refused to condemn the barons, not that he had openly taken their part. Essentially, the archbishop was trying to hold the balance even, and not aggravate the situation.64
The best evidence that Langton had no input into the development of the baronial demands in 1215 lies in the documents themselves. The Unknown Charter is an entirely secular creation, and has nothing on the church. Indeed, whereas Magna Carta, in chapter27, laid down that if a free man died in intestate, his nearest relatives and friends were to distribute his chattels ‘under the supervision of the church’, the Unknown Charter, in its equivalent chapter (5), says nothing about the church’s role. An omission of far more moment occurred in the Articles of the Barons. In their initial order and content, the Articles followed the 1100 Charter, save that they completely left out its first chapter on the church. It was not even as though the Articles said that the church would be introduced in the eventual Charter, as it did about some other matters. Evidently, the barons had no expectation that there would be a chapter on the church, yet they must have been very keen to include one. After all, defence of the church featured in their oath of association, and Robert fitzWalter styled himself ‘marshal of the army of God and holy church’. That the church did not appear was almost certainly because Langton would not allow it.
Further evidence that Langton distanced himself from the Articles lies in the very evidence that features, at first sight, to show exactly the reverse. Langton appears in no fewer than five chapters of the Articles, surely proof that his hand lay heavy upon them.65Nearly all the roles assigned him were in response to difficulties that John was making or was expected to make. Thus if the king was to have the delay enjoyed by other crusaders on the disseisins committed by his father Henry and brother Richard, then Langton and the bishops were to take over and give judgement on the cases.66 If there were disputes over pardoning fines, then the archbishop was to join the twenty-five in judging them (chapter 37). And again, Langton was called in to give judgement on whether John’s charters would enable him to avoid the concessions demanded by the Welsh and the king of Scots. Finally, in the security clause, John was to get charters from Langton, Pandulf and the bishops guaranteeing that he would seek nothing from the pope by which the Charter might be overturned.
All this seems to show Langton deep in baronial counsels, and helping directly in the stand against the king. Yet the fact is that every single one of the references to Langton in the Articles was altered in the Charter. The reason, it may be suggested, was that the barons were asking Langton to do things which, once he engaged with the Articles at Runnymede, he either refused to do or agreed to do in a more qualified fashion. The most striking instance of this, one which has devastating consequences for the view that Langton was involved with the Articles, comes at the end of the security clause. There Langton and his fellow ecclesiastics were supposed to issue charters guaranteeing that John would seek nothing from the pope to overturn the Charter. Langton could not possibly have done anything of the kind. He would thus have been placing a barrier between John and the pope, a pope who was the king’s temporal overlord as well as his spiritual father. Langton would have known that there was no quicker way to destroy the eventual Charter and himself, in some great explosion of papal anger, than to assent to that. Had he been involved with the Articles, he would have said at once that the demand was impossible. When he did engage at Runnymede, the demand was scrapped. How the other clauses were also altered at Runnymede we will see in the next chapter.
Langton had several reasons for acting at arm’s length. One was practical. If he threw in his lot with the rebels, he would destroy his role as peacemaker. Another was ideological. Langton, at the start of the Interdict, had urged the kingdom’s knights to protect the church with their swords. But the situation in 1215 was quite different, for John was now reconciled to the pope. While, in his biblical exegesis, Langton argued that disobedience to an unjust command might sometimes be legitimate, he never thought in terms of outright rebellion. He averred that if people knew that the ruler was trying to execute someone unjustly and without judgement, then they were bound to liberate him, but such an obligation could hardly stretch to justifying the rebellion of 1215.67 Indeed, the pope pointed out that it was the barons who were trying to deprive John of his rights ‘without judgement’.68
Once, therefore, the barons took up arms against John, which they did from the start of 1215, there was no way Langton could help develop their demands. When the king began serious negotiations after 25 May, the situation changed, but Langton still held aloof. It was only after John had made his position completely clear by sealing the Articles that the archbishop became involved. None of this means that Langton’s attitude was unimportant for the growing insurgency. He was close to Eustace de Vescy; indeed, his steward, Elyas of Dereham, appears as Vescy’s agent.69 Through such channels, Langton’s sympathy for the barons must have been clear, hence the role they hoped he would play in the Articles. His attitude also made it easier for his tenants to join the rebels. Three out of the four knights appointed by the baronial leaders to enforce the Charter in Kent were Canterbury tenants and close to the archbishop. All three witnessed an important agreement he made over Rochester castle in 1213.70 Most vital of all was Langton’s refusal to launch sentences of excommunication. The rebellion would have had far less impetus had he succumbed to the pressure to do so.
THE COMMUNITY OF THE REALM71
Even without the first chapter on the church, the Articles of the Barons seemed far more than a mere baronial document. The chapters on amercements covered free men, merchants, villeins and clerks. The position of the knights in local government was fully recognized. All sections of society benefited from the limitations on taxation and the exactions of the sheriffs. All, in theory, were enlisted by the oath in the security clause to defend the Charter. How had this come about? One view is that it was the result of various interest groups getting their agendas into the Charter, as far as their power allowed, as well as lower sections of society benefiting when their interests happened to coincide with those of their superiors. Another view is that the baronial leaders felt a sense of responsibility for the realm as a whole. Thus Susan Reynolds has written:
The barons of Magna Carta spoke – and presumably spoke more or less sincerely – on behalf of the community of the realm, not because they thought most of its members were their equals but because they did not. It was the accepted duty of the great men of any kingdom to represent the rest.
These different views about the role of idealism and self-interest in 1215 are not mutually exclusive, and weighing the balance between them is difficult, since we cannot see into the minds of the baronial leaders. There is a contrast here with the revolution of 1258 when we have abundant evidence for the uneasy relationship between principle and profit in the career of Simon de Montfort. How one wishes one could say the same for Saer de Quincy and Robert fitzWalter!
Under King Stephen the barons had fought for themselves and extracted individual charters of concession, dealing with their own particular grievances. In 1215, by contrast, the barons certainly thought of themselves as representing the kingdom, a kingdom whose existence and interests are evoked so often throughout Magna Carta. It is thus the baronial tenants-in-chief who answer for the kingdom when it comes to taxation. It is likewise twenty-five barons, leading the ‘commune of all the land’, who are to enforce the Charter. That the king should have a ‘care’ for all his subjects, even those who were unfree, had long been accepted. The idea is found in the Dialogus de Scaccario, in William of Newburgh and in the picture of the realm in Lawman’s Brut.72 Might not the baronial leaders have felt in the same way? At the start of Magna Carta, John said that he was acting for ‘the reform of our kingdom’. Was that not really the barons speaking? Archbishop Langton might not have influenced the detailed development of opposition demands, but his ideas could still have informed baronial thinking. One of his fundamental concepts was that secular authority derived from the church broadly defined as the congregation of the faithful, both clerks and laymen. Might there then, John Baldwin asks, be a connection between that idea and the baronial view of their programme as ‘representing the community of the realm’?73
Baronial leadership was accepted at the time by contemporary commentators. On the back of the Lincoln engrossment of the Charter, it was described as ‘the Concord between King John and the Barons in return for the concession of the liberties of the church and the kingdom of England’. In 1205 Gervase of Canterbury could write of the ‘magnates of England’ demanding that John preserve the rights of the kingdom ‘with their counsel’. There must be some truth in all this. After all, barons, knights, free tenants, churchmen and townsmen had all suffered from John’s oppressive rule. They surely felt a solidarity in standing against it under baronial leadership. It was this ‘equality of oppression’ that made Magna Carta ‘the classic statement of regnal solidarity against a king’.74
Yet this perspective, if pushed too far, is hard to square with the cold detail of the Articles and the Charter. The barons’ claim to represent the realm can there seem merely a cover and support for their own interests. Magna Carta certainly stipulated that ‘even an unfree man should be punished only in proportion to his offence’. Yet, as we have seen, this clause was specially drawn so as to exclude the unfree from any protection against their lords.75 There was not much care for the unfree peasant there, although they made up a large proportion of the population. The barons believed certainly in justice and judgement, but most strongly when it came to themselves. One can hardly agree with the premise that they had ‘relatively little seigniorial jurisdiction to protect’. Throughout, the Charter tries to preserve the interests of ‘the lord of the fee’.76 Self-interest too, at the expense of the wider realm, is clear in what the Articles of the Barons and the Charter left out. So, in contrast to the inquiries of 1170 and 1258, the twelve knights had no brief to deal with the malpractices of lords. And although the Charter was to be obeyed by everyone, not just the king, it was only against the king, under the terms of the security clause, that it was to be enforced.
The most immediate beneficiaries from the work of the twenty-five would clearly be the barons themselves. When the clause spoke of the barons choosing twenty-five of their number to do all they could to preserve ‘the peace and liberties which the king has conceded to them’ (my italics), it gave the game away. As events were to show, many of the baronial leaders were ready with their grievances; hence the way in which chapter 37 of the Articles stipulated that a member of the twenty-five must stand down if his own fine or amercement was being considered. Although the twenty-five made great efforts to see that the oath of allegiance to them was taken, this was in good measure to ensure that the Charter was enforced for their own benefit. Even against the king and his ministers, no real thought had gone into enabling lower sections of society to complain about breaches of the Charter. It was always going to be easier for barons and major knights to find four of the twenty-five than for those further down the social scale. To have made the Charter enforceable for the general body of free tenants, suffering the abuses of the sheriffs and foresters would have required a permanent group of knights in each county, with the brief of hearing and redressing all complaints. Something like that, however, had to wait until 1300.77 This job could, in 1215, have been given to the twelve knights elected in each county to investigate and abolish local abuses. Instead, they had but a temporary commission, and not one that included judging breaches of the Charter. The fact was that the twenty-five were determined to stand alone as enforcers of Magna Carta, in the process ensuring it was not in any way enforced against themselves. Here they would not resign power to the knights. This was the same thinking that led to the assembly conceived at Runnymede for giving common consent to taxation being one entirely of tenants-in-chief.
When it came to the church, the baronial leaders in 1215 certainly wished to include it in their programme, and eventually succeeded in doing so. But one doubts whether they felt much solidarity with the church’s demands over freedom of election and the length of vacancies, the subject of John’s November 1214 charter, confirmed in Magna Carta. Indeed, the Articles, in chapter 43, actually protected the rights of barons to have the custody of vacant abbeys of their foundation. Here the Charter was preserving for barons rights that it was reducing for the king. Robert fitzWalter, one is reminded, had taken violent action to assert his prerogatives as patron of Binham priory.78
Fundamentally, the opposition programme developed from the narrowly baronial schemes, like that in the Unknown Charter, to one with much a wider scope for hard material reasons. As Holt put it, ‘the society in which the battle for Magna Carta was fought and won was not one in which the great tenants-in-chief dominated the political scene completely’. The concern in the Charter for other sections of society was ‘an act recognizing social facts’.79 The baronial leaders needed support. They included the demands of the knights and under-tenants, London and the towns, the Welsh rulers and the king of Scots, in order to get it, as those groups joined up. At the same time, however, the great barons sought to limit such demands where they encroached on their own interests.
Although John, in the negotiations, had modified some of the opposition demands, he was still having to swallow a very bitter pill. He had been brought to this pass by the fall of London in May 1215 and the rapidly deteriorating situation in the country. He would now see what the negotiations at Runnymede would bring.