Post-classical history

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13

The Revival of the Charter, 1216–1225

Prince Louis had landed at Thanet in Kent on 21 May 1216, with a large French force. John felt unable to resist him and beat a hasty retreat.1 He thus avoided risking everything in a single battle, as King Harold had done so fatally in 1066, but signalled his weakness in humiliating fashion. With Louis receiving a triumphant welcome in London, many of John’s leading men deserted. Of the sixteen lay counsellors whom he had named at the start of Magna Carta, Alan of Galloway and Robert of Ropsley had already done so. They were followed, after Louis’ arrival, by Hugh de Neville, John fitzHugh, and the earls of Salisbury, Warenne and Arundel. Of the earls that the king had named, only William Marshal remained loyal. At some point, at least seventeen of John’s household knights joined the rebels, including such trusted figures as John of Bassingbourn. Some of these men harboured material grievances and personal grudges against the king. Some were under pressure locally with powerful neighbours in the rebel camp.2Above all, especially after Louis’ arrival, they calculated that John was finished.

King Alexander made the same calculation. Back in October 1215, with John occupied investing Rochester castle, he had laid siege to Norham castle on the Anglo-Scottish border. His alliance with the rebels had been sealed by ‘the barons of England’, which probably meant the twenty-five, conceding his claims to the three northern counties. Eustace de Vesci came to Norham and personally invested Alexander with Northumberland. Having taken the castle at Rochester at the end of November, however, John gained revenge. He marched north, reached Berwick in mid-January 1216, and then sent troops to ravage the country as far north as the Forth. ‘We will chase the red Scottish fox from his lair,’ he allegedly remarked, alluding to the colour of Alexander’s hair. With Louis’arrival Alexander took fresh courage. In August 1216 he seized Carlisle and then came south himself to meet Louis at Dover, and do homage for the northern counties.3 Meanwhile Llywelyn, at the head of a confederation of Welsh rulers, had conquered Cardigan and Carmarthen and driven Gwenwynwyn (lured back to John’s side) from southern Powys. John, however, was defiant. Having spent much of the summer gathering his forces at Corfe castle, in July he set off on a ravaging campaign that took him to the Welsh marches and then across to the eastern counties.

By the end of September 1216, John was at Lincoln. He broke up the baronial siege of the castle, and then headed south to King’s Lynn. On 12 October part of his baggage train was lost, including the relics of his chapel, when it was sucked into the sands of the Wellstream while attempting a short cut across this inlet of the Wash before the tide had properly receded.4 The loss of the relics was the more grievous because John was now desperately sick with dysentery. On 15 October, in a moving letter from Sleaford, he informed the pope that his life was wholly despaired of, and begged for spiritual aid:

Since grace is not denied those asking for mercy, we beg you father that you will stretch out to us the hands of absolution in remission of our sins, that supported by the work of your mercy, He who punishes beyond deserts and rewards beyond deserts, will look on us with the eye of his mercy, and deem us worthy to be placed in the number of the elect.5

Some hope, one might think, but at least John had already taken steps to expiate his greatest crime. On 10 October, at King’s Lynn, the king had granted land for the site of a religious house to be founded at Aconbury in Herefordshire – for the souls of the murdered Matilda de Briouze and her son.6 John was also thinking of how to secure what he called the ‘perpetual hereditary succession’ of his dynasty. In his letter of 15 October, he thus placed the kingdom and Henry, his heir, under papal protection. He also begged his entourage to ensure that William Marshal became regent. Yet still John was on the move. On 15 or 16 October he was carried on a litter the twenty miles from Sleaford to Newark. There in the castle, in the middle of the night of 17–18 October, he died, as a great storm howled around the town and made the citizens fear for the safety of their houses. When John de Savigny (Ralph of Coggeshall’s informant from whom this comes) entered Newark early next morning, he found the king’s servants unwilling to tell him what had happened. Indeed, so Savigny alleged, they had fled, leaving the king’s body naked, until the constable of the castle found something to cover it. Savigny himself, allowed in to see the corpse, remained with it for about an hour and celebrated Mass for the king’s soul.7

John had originally intended to lie in the Cistercian abbey that he had founded at Beaulieu, but this was in an area controlled by the rebels. In his will, drawn up in his last days, John thus asked instead to be buried in Worcester cathedral, ‘in the church of Saint Mary and Saint Wulfstan’. There was also a spiritual reason for this. Beaulieu abbey had no saint. Worcester, on the other hand, had Wulfstan, bishop of Worcester from 1062 to 1095. Wulfstan’s canonization had taken place in 1203, after numerous miracles at his tomb: in 1201 more than a dozen people had been cured in one day. In 1207 John himself prayed ‘for some time’ beside the tomb, and conferred benefits on Worcester cathedral. In a reign full of spiritual darkness, Wulfstan’s canonization was one bright light. Surely he would now intercede, and secure John’s inclusion among the number of the elect.8 At Worcester, accordingly, John was buried. When his tomb was opened in 1797, he was found to be wearing on his head what was taken at the time to be a monk’s cowl. Much more likely, it was John’s cap of unction, the cap that was placed on the king’s head at the coronation in order to absorb and retain for a period the holy oil of the anointing.9 John had evidently kept this most holy object with him. It had not done him much good in this life. Perhaps now it would help him in the life hereafter.

MAGNA CARTA 121610

With John’s death, would his remaining supporters go over to Louis and bring the war to an end? After all, John’s son Henry was only nine and Louis controlled well over half the kingdom. Nothing like that happened. Instead John’s supporters proceeded at once to Henry’s coronation (at Gloucester, for Louis controlled London and Westminster abbey), and pressed the Marshal to assume the regency. After some hesitation, for he was around seventy, he accepted.

Not to be underestimated in explaining this conduct are ideas of loyalty and honour. They run through the account in the History of William Marshal and the papal and royal letters of the time. ‘Let your fidelity and constancy be commended for all time to the praise and glory of your name’, ran one missive to the garrisons of Bedford and Northampton.11 There were also hard material reasons. Many of John’s captains and castellans could hope for no equivalent employment on the other side. Some of his great baronial supporters had private disputes with Louis’ partisans. Thus the earl of Chester’s claims to the earldom of Lincoln and the castle of Mountsorrel put him at odds with Gilbert de Gant and Saer de Quincy.

There were also reasons to hope that Louis’ supporters might think again, now that they were faced not by the hated John but by his young innocent son. ‘The candle of the child called back the stars which had been scared by the father’s thunder,’ wrote one poet.12 Louis’ English followers also found themselves in conflict with his French entourage over place and patronage. Their cause was further damaged by the arrogant and brutal conduct of the French soldiery. Thus a war being fought, so Louis said, to save the English from a tyrannical king, could now be portrayed by his opponents as one fought ‘to deliver England from the French’.13 There was one other cardinal factor sapping Louis’ strength, namely the attitude of the pope. On his orders, Louis and his followers had all been excommunicated. As a result, they could have no overt support from the English bishops, nor any other high ecclesiastic. Louis could not be crowned, for all his possession of Westminster abbey. There was no one to crown him. In giving papal support to John and his son, one person stood out. This was the papal legate, Guala Bicchieri, who had arrived in England in the spring of 1216. He displayed stupendous energy in the royal cause and eventually turned it into a crusade. Thus, as the Crowland chronicler shrewdly observed, ‘those who once called themselves the army of God and boasted that they fought for the liberties of the church and the kingdom, were reputed to be the sons of Belial and compared to infidels’.14

The situation of the minority government was thus not hopeless, yet it remained bleak. Henry’s very coronation banquet at Gloucester was disturbed by news that the Marshal’s castle at nearby Goodrich was under attack. Total defeat was a very real prospect. The result was a momentous decision, which changed the course of history. The minority government now accepted what John had rejected: it accepted Magna Carta, thus laying the foundations for its survival. The aim, of course, was to tempt rebels back into the young king’s camp, by conceding what they had initially been fighting for. Clearly the Charter, although rejected by John and sidelined by Louis, was still thought to retain its attractive power.

For the great barons on Henry’s side the decision to accept the Charter was easy. They, just as much as any rebel, would benefit from its ‘baronial’ clauses. For Guala, who with the Marshal authorized and sealed the document, the decision required courage and imagination. After all, papal policy was now stood on its head, and without any opportunity of consulting Honorius III, who had been elected pope on Innocent III’s death earlier in 1216. But the pope was always good at adjusting to new realities, and Guala doubtless saw and explained the political imperatives, which justified his action. He would also have explained that Henry’s Charter was different from John’s in omitting its most obnoxious inroads into royal power. In effecting that omission, Guala was doubtless at one with some of John’s most ruthless administrators, notably Peter des Roches and William Brewer, who were among the advisers mentioned by the king at the start of the new Charter. But probably everyone agreed that some of the most radical demands were impractical, especially in a war situation. None of the omissions were reversed and so the decisions taken now were of fundamental importance for the shape of the final, definitive Charter of 1225.

The new Charter was written in Henry’s name, and was authorized by, that is ‘given by the hands’ of, Guala and William Marshal (the latter with his title as regent) at Bristol on 12 November in the first year of the reign, so 12 November 1216. Guala and the Marshal also sealed the Charter, since, as it explained, the king had no seal. The Charter provided a new list of counsellors on whose advice the king had acted, in part of course because some of the old ones had joined the rebels. After Guala, there were eleven bishops, headed by Peter des Roches of Winchester, although those of St David’s and Bangor were so obscure that one of the clerks, writing out an engrossment, did not know their names. The twenty-four laymen were headed by William Marshal and only six names were part of the 1215 list.15 The earls, apart from the Marshal himself, were those of Chester, Derby and Aumale, the last a former rebel and indeed member of the twenty-five. The list was supposed to impress the rebels with the scale of the young king’s support, and it certainly included, as the 1215 Charter did not, a powerful group of Welsh marcher barons. In a war-torn situation, they could leave their lordships briefly to come to Bristol. Runnymede had been a different matter.

The first conspicuous change to the 1215 Charter came right at the start. Chapter 1 still gave freedom to the church, but omitted 1215’s confirmation of John’s charter guaranteeing free elections. Archbishop Langton would have hated that but he was an absentee. After his departure for the papal court in October 1215, he did not return to England until 1218. The decision now was Guala’s. He must have judged, not unreasonably, that freedom of elections during the war might mean freedom to elect supporters of Louis. The only compensation was that vacant bishoprics and abbeys were now given the same protection from exploitation as secular wardships. The Charter also omitted 1215’s chapter on wills (27), perhaps because they were considered entirely a matter for church regulation.

The most important change in the Charter came, however, at the end. There the security clause with its twenty-five barons, and the oath taken by the community of all the land, disappeared altogether. Also omitted was the chapter that had sought to remedy John’s unjust disseisins, if necessary after judgements by the twenty-five, the chapter, that is, which had forced him to make so many restorations in the period after Runnymede. The chapter on remedying unjust fines went too, as did that on the grievances of King Alexander. Doubtless he was considered a hopeless case. The only chapter redressing the wrongs of the past which remained was that on the Welshmen disseised by John, probably because some were on the king’s side, or were hoped to be.

In the field of local government, the 1216 Charter also excised another chapter of the 1215 Charter which had stripped John of so much power and caused so much disruption, namely that which set up the twelve elected knights in each county with authority to investigate and abolish the malpractices of the king’s local officials. Out too went the stipulation that royal officials needed to know the law of the kingdom, and the chapter dismissing the kinsmen of Gerard d’Athée. They indeed were now performing sterling service in the war, with Engelard de Cigogné as castellan of Windsor. A person of comparable status, soon to rise to almost comital power, the Norman, Falkes de Bréauté, actually featured as one of the advisers of the 1216 Charter.

Alongside these changes, there were some others made, in part at least, to defend the rights and revenues of the crown. Thus the 1216 Charter omitted the stipulation that information about marriages proposed for heirs needed to be given to the next of kin; this itself was a retreat from the Articles of the Barons, which had asked for such marriages to take place with the kin’s ‘counsel’. The 1216 Charter also omitted altogether chapters in the 1215 Charter on scutages and aids, debts owed to the Jews, and the increments and (by implication) profits exacted from the counties. So there was nothing on taxation needing the common consent of the kingdom, and nothing correspondingly on the constitution of the assembly that might give it. Out as well went 1215’s chapter 42, giving free entry to and exit from the kingdom, not surprisingly in this time of war. The Charter was quite open about some of these omissions. At the end, it observed that, since some of the chapters ‘in the earlier charter’ seemed ‘weighty and doubtful’, they had been put in abeyance until the king could have further counsel about them. He would then do whatever was for ‘the common utility of all’. The security clause and the twenty-five were not mentioned here. Nor were the missing chapters, the source of so much contention, on the redress of past fines and disseisins. Evidently their removal was non-negotiable. But flagged up were the issues of scutages and aids, debts to the Jews, and, referring here to the investigation of the twelve knights, the issues of forests and foresters, and the customs of the counties. In part the new Charter was thus an offer to the rebels and an attempt to draw them into negotiation. It also rewarded the men of the Cinque Ports, ‘the barons’ as they were called, who were giving vital support to the crown. They were nowincluded in the chapter that confirmed the liberties of London and other (unnamed) towns and ports.

The Charter was drawn up in a spirit of surprising confidence, given the general situation. That is seen in the beautiful writing of the only surviving original, preserved at Durham cathedral. It can be seen too in the trouble taken to make a whole series of small changes. Thus widows were not to remain in castles; sureties were to answer if the debtor could pay but refused to do so; constables could take corn from the vills in which their castles were situated but must pay for it in three weeks; the sheriffs and bailiffs, if they took horses and other chattels, were to pay for them at stipulated rates. The provision in 1215 that a guardian was to return land stocked ‘according to … the time of the wainage’, which meant the agricultural season, was altered to ‘at least according to how he received it’.16 Evidently the drafters thought the Charter was worth the effort of these detailed changes and might last.

The 1216 Charter certainly reached the north, for the one original is in the Durham cathedral archives, while copies are found in later York Minster cartularies.17 Two single sheet copies in the French royal archives probably came from material that Louis took with him from England.18 Although seriously weakened when it came to enforcement, redress of past grievances and the reform of local government, the essence of the 1215 Charter and much of its detail remained intact. The 1216 Charter might be measured against what Louis had to offer. There is no evidence that he responded by issuing a charter of his own. That failure may have seemed the more important as his French entourage and soldiery became increasingly unpopular. The fact of the new Charter, together with John’s death, may well explain why the English rebel barons did not fight harder when the decisive confrontation came at the battle of Lincoln on 20 May 1217. In that conflict Louis’ Anglo-French forces were shattered by William Marshal. Not a single English rebel of any status was killed, while forty-six were captured along with three hundred unnamed knights. The captives included the earls of Winchester and Hereford (Saer de Quincy and Henry de Bohun), Robert fitzWalter, Gilbert de Clare (the eldest son of Earl Richard, who died later in the year), William de Mowbray, Gilbert de Gant, Robert de Ros, Nicholas de Stuteville, Roger de Cressy and Henry, son of Earl David.19 Geoffrey de Mandeville and Eustace de Vesci had both died the previous year, the one killed in a tournament, the other shot through the head by an arrow during a siege of Barnard castle. The heart had been ripped from the baronial party. Louis himself missed the battle of Lincoln since he was besieging Dover castle. Its long and gallant defence by Hubert de Burgh had been a major reason for his difficulties. His last hope resided in a great fleet bringing him reinforcements from France. The hope evaporated when, on 24 August 1217, the fleet was destroyed by de Burgh in a sea battle off Sandwich in Kent.

MAGNA CARTA 1217 AND THE CHARTER OF THE FOREST

Louis now realized he must give up. In September 1217, under the Treaty of Kingston/Lambeth, he resigned his claims to the English throne, but loyally obtained the best terms that he could for his followers. Everyone was to recover freely the lands that they had held at the start of the war. The rebels thus did far better than their Montfortian successors in 1266, who had to buy back their lands. Magna Carta was also part of the settlement. Louis’ supporters certainly needed it now that he was not to be their king. Accordingly, in November 1217, Henry III issued a new version of the Charter, this time accompanied by a quite separate Charter regulating the running of the royal forest.

I say November 1217 but, in fact, the four surviving engrossments of the 1217 Charter completely lack the ‘given by the hand’ clause normal at the end of royal charters, and thus provide no indication of their place and date of issue. Instead they simply end with the statement that, since the king has no seal, they are being sealed by Guala and the Marshal.20 One of the two surviving engrossments of the Forest Charter, that at Lincoln, ends in the same way.21 The most likely explanation for the absence of the ‘giving’ clause and thus of the date is that all five of these engrossments were drawn up for distributions of the Charters arranged in 1218, and it was thought confusing to include the earlier date of the original issue. The November date is derived first and foremost from the other surviving engrossment of the Forest Charter, which has always been in the episcopal archives at Durham. Although now damaged, enough remains to deduce that it was ‘given by the hands’ – ‘data per manus’ – of the Marshal and Guala at St Paul’s, London, on a day in November in the second year of the king’s reign, so November 1217.22 The new Magna Carta was clearly drafted with the Forest Charter in mind, for the two forest chapters remaining in 1216 were moved across to it. The preambles to the two Charters also have identical wording. One can be fairly sure, therefore, that they share the same date and that Henry’s second Magna Carta belongs to November 1217.

Just what the date was in November is more problematic. Virtually all modern authorities give it as 6 November. Yet the Durham Forest Charter, the only engrossment to have a date at all, while it certainly indicates November, equally certainly does not mention the sixth. Instead, the first letter of the date seems, if anything, to be a ‘Q’. The rest of the number is then lost but, judging from the space it occupied, it was most likely ‘Quartodecimo’ or ‘Quintodecimo’.23 This, however, is an impossible date for a document given at St Paul’s, since, by 14–15 November, the Marshal had left London and was on his way to Gloucester. One explanation might be that 14 or 15 November was the day on which the clerk actually wrote out the Durham Charter, although that was not chancery practice for the Charters of 1215. Whatever the case, the chancellor, Richard Marsh (of whom more shortly), must have been satisfied, since he presumably received this engrossment as bishop of Durham. Where then does the 6 November date come from? The answer is not from engrossments but from copies of Magna Carta and the Charter of the Forest, which end with the statement that they have been ‘given’ at St Paul’s on 6 November.24 This provides a believable date for the Charters since the government certainly was in London on the sixth. These copies, however, are all given not by the legate and the regent but by the chancellor, Richard Marsh, bishop of Durham.25 No copyist could have made up this giving clause, and it must be contemporary. What is going on? Marsh had a high opinion of his status as chancellor, and once upbraided his deputy, Ralph de Neville, with forgetting his title.26 He would surely have wished to ‘give’ the 1217 Charters. The copies in which his name appears may possibly derive from engrossments in which he did so. More likely, however, is that they descend from rejected drafts. Just as Marsh was passed over in 1215 as ‘giver’, in favour of the king, so, in 1217, he was passed over in favour of the legate and the regent. They had already given the Charter of 1216, thus imbuing it with the maximum possible authority. They decided to do the same with the Charters of 1217. That is a measure of their importance.27

The 1217 Charter differed in significant ways from its predecessor, largely in making further concessions to the kingdom. There was every need to do so. The minority government, headed by the Marshal, had won the war but still needed to affirm the peace. Former rebels, having recovered their estates, could very well make trouble if they were dissatisfied with the new conditions. The fragile political situation is reflected in the prologue to the Charter, which, in contrast to those of both 1215 and 1216, had no lengthy list of royal counsellors. The only people mentioned by name were Guala, the archbishop of York, the bishop of London and William Marshal. Evidently, the drafters shied away from simply listing, as before, the king’s own supporters. That would have seemed all too partisan. Equally, it was not yet possible for loyalists and former rebels to join together as counsellors or witnesses. The unstable situation was also shown at the end of the Charter, where a new chapter said that, by ‘the common counsel of all our kingdom’, the unauthorized castles built during the war were to be destroyed.

The 1217 Charter also did something about one of the issues flagged up in 1216, namely scutages and aids. It was not much, but at least chapter 44 directed that scutages should be taken henceforth as under Henry II, which implied less frequently and at lower rates than under John. More important was a new concession in the area of local government, one that fulfilled the offer in the Charter of 1216 to look again at the ‘customs of the counties’. Quite probably the concession was also responding to an issue raised by the twelve knights during their investigations and abolitions in 1215. Thus chapter 42 in the Charter of 1217 laid down that county courts were only to be held once a month, or at longer intervals if those were customary. The sheriffs were only to hold their tourns, the especially well-attended sessions of the hundred courts, twice a year, at Easter and Michaelmas. The view of frankpledge was only to be held at Michaelmas, and no more was to be taken by the sheriff than had been customary under Henry II.28 The chapter was a great victory for local society, burdened as it was by frequent attendance at courts and by amercements for failing to turn up. Indeed, chapter 42 covered the same issues as the charter purchased by the men of Devon in 1204.29

These victories paled before the triumph of the entirely new Charter governing the royal forest, a charter with which Magna Carta would thereafter always be linked. The king most blamed for the vast extension to the royal forest was Henry II. John and Richard had, if anything, reduced its area – of course in return for money. In 1215 the Unknown Charter had called for Henry’s afforestations to be reversed. The Articles of the Barons had backed down on the issue and had only targeted the minimal afforesations of John. Magna Carta had reintroduced the issue of Henry’s and Richard’s afforestations, but only as matters for attention once John ended his prospective crusade. The 1216 Charter left out the afforestations of Henry and Richard altogether and kept in just those of John, although raising at the end the issue of ‘forests and foresters’ as a matter for later discussion. Now, the Forest Charter of 1217 came back to Henry II with seeming vengeance. ‘First of all’, it declared, all the forests that Henry II had afforested were to be surveyed by good and law-worthy men, and then deforested. Also to go, although here no investigations were necessary, were the afforestations of John and Richard.

These stipulations were part of a Charter – running to seventeen chapters, so smaller than Magna Carta, but still a substantial document – that must have required a great deal of work. The Forest Charter of 1217 brought back (as chapter 2) the 1215 chapter from Magna Carta, omitted in 1216, which exempted men living outside the forest from coming before the forest justices. Chapter 10 of the Forest Charter also averred that ‘no one’ was to lose life or limb for an offence against the protected beasts of the forest, thus meeting a demand of the Unknown Charter, one indeed which the Anonymous thought had featured in the Charter of King John. The range of forest offences was also reduced by allowing free men, having woods within the forest, to erect mills, make ponds and ditches, and create new arable land. The Charter limited the number of forest officials, and regulated their activities, as far as stipulating how much should be charged for carts going through the forest, and how many claws should be cut from the paws of dogs so as to render them harmless to the beasts of the forest.

This attention to detail was seen in changes to the 1217 Magna Carta. What was largely a new chapter, preventing riverbanks being enclosed other than they were in the time of Henry II, was brought in very logically after that on the building of bridges over rivers. In some of the changes one can sense the hand of the king’s judges who were gathering for the reopening of the bench at Westminster. Thus a widow’s dower was defined as a third of the land her husband had held in his lifetime unless less had been agreed at the time of the marriage. The burdens on the judges themselves were reduced, and their authority was increased, in the chapters about the common-law legal actions. The judges had now to visit each county only once a year. They no longer had to hold the assizes on the day of the county court and with four knights of the county, elected by the court. They were simply to act ‘with the knights of the county’. If they could not finish the business, they were to hear the cases later on their eyre, instead of remaining on to hear them with sufficient knights and free tenants; more convenient for the judges, less convenient for jurors and litigants or at least those of the county concerned. Difficult cases were to be referred to the justices of the bench. All this applied to the assizes of novel disseisin and mort d’ancestor. Those of darrein presentment (about appointments to church livings) were to be heard exclusively at the bench, so not locally at all.

THE SETTLEMENT WITH WALES AND THE INDEPENDENCE OF SCOTLAND

The 1217 Charter omitted the 1216 chapter about the Welsh, so Magna Carta ended up with no reference to the law of Wales. This was because the minority government realized it would have to make a separate peace with Llywelyn, which it did, much to Llywelyn’s advantage, at Worcester in March 1218. There was also a separate peace with King Alexander, so, unlike the Charter of 1215, the 1217 Charter and its successor in 1225 had nothing on Scotland. Alexander vacated Carlisle (his one concrete gain from the war) and came south to King Henry’s 1217 Christmas court at Northampton. There, according to the chronicle of Melrose (the only source), he did homage for the earldom of Huntingdon (held from him by Earl David) and for the other lands that his predecessors had held from the king of England.30 Doubtless Henry reserved his rights over the kingdom, while Alexander reserved his to the northern counties, but the key point of settlement was this: Alexander had not done homage as he had to John in 1209, homage, that is, ‘as William, king of Scotland, did homage’ to Henry II. In other words, Alexander had not done homage for the kingdom of Scotland. He had escaped the noose that John had prepared for him. The civil war of 1215–17 and the consequent collapse of English royal authority thus had momentous consequences for the political shape of Britain. It had ensured the continuation of Scottish independence.

THE FINAL AND DEFINITIVE MAGNA CARTA OF 1225

Struggling to restore peace and order to the kingdom, the minority government gave wide publicity to the 1217 Charters. In February 1218 it thus sent engrossments to all the sheriffs with orders that they be read in the county court, ‘having gathered together the barons, knights and all the free tenants of the county’. This was the letter in which the first reference to ‘magna carta’ itself appeared.31 The sheriffs were also to see that the chapters of the Charter were ‘in all things sworn to and observed’. This echoed the oath taken by ‘the community of all the land’ to support the Charter of 1215. But whereas then the oath had been to fight with the twenty-five against the king, now it was linked to a second oath in which the assembled barons, knights and free tenants were to swear fealty to him. That there was to be a new monarchy whereby allegiance to the king was inextricably linked with allegiance to the Charter could not have been more clearly demonstrated.

Not surprisingly, the 1217 Charter became far better known than its 1216 precursor. There are four surviving engrossments, probably all from the circulation of 1218, as opposed to only one engrossment surviving from 1216. There are also a good number of copies, although often in a form in which the 1217 charter is conflated with that of 1225. The Forest Charter was itself circulated again in April 1218.32 This did not mean that either Charter would be enforced. There was an immediate struggle over the Forest Charter. This, as we have seen, laid down that the afforestations of Henry II were to be abolished, once they had been established by ‘good and law-worthy men’. Sensing danger here, the government did nothing to set the work of the men in motion. The result was that some counties pressed ahead on their own, until (in July 1218) the government at last sanctioned official surveys of Henry II’s afforestations by ‘twelve law-worthy and prudent knights’. When, however, the surveys indicated the vast extent of Henry’s afforestations, so that if removed the king would be left with little more than his demesne woods, the minority government refused to implement them. Instead, it developed the argument that the afforestations of Henry II meant only those which he had made afterhaving restored the losses under King Stephen. The result was a stalemate, although one that gave the Forest Charter all the more publicity.

There could also be anxiety over the validity of the Charters themselves. The young king’s seal had been inaugurated in 1218, which left a question mark over Charters authenticated merely with the seals of the regent and the papal legate. The fact that theCharters had their origins in the coercion of King John also cast a shadow. A dramatic exchange during a great council in January 1223 shows that this had not been forgotten. On that occasion, in response to a proposed inquiry into royal rights, Archbishop Langton and other magnates demanded that the king confirm Magna Carta. At this, William Brewer, doyen of John’s exchequer, barked out ‘the liberties which you seek, since they were violently extorted, ought not rightfully to be observed’. Langton rebuked him: ‘William, if you loved the king, you would not disturb the peace of the kingdom.’ Henry himself, now fifteen, then stood forward and declared that he would indeed observe ‘all the liberties to which we have sworn’.33 Brewer, however, had made a powerful point.

The king’s oral confirmation of the Charters in 1223 set the stage and also showed the need for the final and definitive Charters that he issued two years later. In bringing that about, a central role was played by two men, Langton himself and the justiciar, Hubert de Burgh. De Burgh had taken over the government just before the Marshal’s death in 1219, gradually sidelining his deadly rival, the king’s tutor, Peter des Roches. A man on the make, de Burgh was eager to ascend into the ranks of the high nobility. He also believed in doing his job as justiciar, which was to dispense justice and restore and maintain the rights of the crown. Such a restoration, he recognized, must take place within the context of Magna Carta. This was not just because of the fear of renewed rebellion. De Burgh also needed the support of former rebels to stabilize his regime and restore royal authority. Here, through a remarkable turn-around, his enemies were the very loyalists who had helped win the war. John’s old sheriffs and castellans now claimed that they could not be removed until the king came of age, which, if that meant twenty-one, would not be until 1228. They also aspired to retain all the revenues from their local offices and govern them almost as they wished. Some of the chief culprits came from the ranks of John’s foreign agents, and were closely allied to Peter des Roches. Hence the way the politics of the minority came to be portrayed as a struggle between the English and the aliens, giving a great boost to English national feeling. Most conspicuous among the ‘evil’ foreigners was Falkes de Bréauté, the illegitimate son of a Norman knight. (The name Falkes, according to one tale, derived from the scythe – ‘faux’ in French – with which he had killed someone in his father’s meadow in Normandy.) He had begun his career, called simply ‘Falkes’, as a ‘poor serjeant’ of King John. From there, articulate and clever, ‘small of body but most valiant’, as the Anonymous put it, he had risen fast. He now controlled the earldom of Devon and was sheriff of six counties across the Midlands.34 If royal authority was to be restored, and de Burgh was to be secure, it was vital to break the power of such men.

Having spent the years 1216–17 in northern Italy, France and Flanders, in May 1218, with his suspension from office lifted by the pope, Langton had returned to England to take up his duties as archbishop of Canterbury. He was passionately committed to the Charter, and wished to place it on a firm and unimpeachable footing, free from Brewer’s imputations. Yet he also saw the need to recover royal power. Without that, the king could never maintain peace and protect church and people. Langton agreed with de Burgh in seeing the foreign sheriffs and castellans as the source of much of the trouble. At the end of 1223, he helped de Burgh bring about their dismissal as part of a general redistribution of local offices. Next year, he and his episcopal allies stood shoulder to shoulder with de Burgh in putting down the revolt of Falkes de Bréauté. While that was happening, however, disaster took place abroad. King Philip Augustus, scourge of the Angevin dynasty, had died in 1223. His successor was his son Louis, the very person who had tried to make himself king of England. Louis now took revenge for his defeat by invading what remained of Henry III’s continental dominions. He conquered Poitou with ease, and went on to threaten Gascony. Only a major effort from England could save the situation, and to finance that a great tax was a necessity. This was the catalyst behind the final and definitive version of Magna Carta, which King Henry issued, along with a new Charter of the Forest, at Westminster on 11 February 1225. Just as the financial demands of the continental empire generated the grievances that produced the first Magna Carta of 1215, so those demands necessitated the tax that produced the final Magna Carta of 1225. Without England’s involvement on the continent, there would have been no Magna Carta.

The Magna Carta of 1225 had a status from the start far above that enjoyed by its predecessors, one which placed it on a secure and inviolable footing. This Charter had not been forced upon the king, as the Charter itself made very clear. Thus, in the preamble, Henry stated that he was making the concessions by his ‘spontaneous and good will’. The king could say that, as he could not in 1216 and 1217, because he was now seventeen. Already at the end of 1223 he had started to witness royal letters, and thus take responsibility for government orders. As early as 1218, his seal had been inaugurated and it was this that authenticated the Charter of 1225, as can be seen from the splendid example which hangs beneath the engrossment preserved at Durham. Yet it was not simply the king’s age that made the difference to the 1225 Charter. Indeed, there remained a view that Henry would not attain his majority until he was twenty-one in 1228. In 1225 he was still prevented from issuing his own charters and making grants in perpetuity.35 The 1225 Magna Carta was thus an exception to this continuing restriction of the minority. The key factor that elevated the 1225 Charter, removed the taint of coercion and proved Henry’s spontaneity was different. It was that the Charter was purchased from the king in return for a grant of taxation, the taxation, of course, which was needed to rescue Gascony from the French. The Charter itself made the point explicitly. As Henry declared in the final chapter:

For the concession and gift of these liberties and the other liberties contained in our charter of liberties of the forest, the archbishops, bishops, abbots, priors, earls, barons, knights, free tenants, and all of our kingdom, have given us a fifteenth part of all their movables.

This link between the Charter and the tax was always remembered.36 It meant Magna Carta had escaped its doubtful origins in the wars of 1215–17. The Charter of 1225 was new and pure, produced not by coercion but by a freely struck bargain between king and kingdom.

Archbishop Langton was the first witness to the new Charter. Judging from a later remark, he had hoped in 1225 to secure more liberties for the church. These might have included a confirmation of John’s charter granting free elections.37 Here the archbishop was unsuccessful. Langton, nonetheless, gave every possible support to the 1225 Magna Carta. It was he, one suspects, who ensured that the bargain from which it sprung was described in the Charter, so that it carried for all time the proof of its consensual origins. Precisely because of those origins, Langton was able to do something else, namely bring church and realm together in the Charter, instead of keeping them separate, as they had been in 1215. In the 1215 Charter, the freedom of the church had been granted to God, and was made quite distinct from the concessions made to the kingdom. The point was to avoid any suggestion that the church’s freedom was the product of coercion, whatever might be the case with the liberties granted to everyone else. Indeed, it was only in respect of the liberties of the church that the Charter mentioned John’s ‘free and spontaneous will’.38 In Henry III’s Charters, the division between church and kingdom remained, but, in 1225, Langton nullified the effect by introducing a new preamble that brought churchmen and laymen together as beneficiaries of the king’s concessions.

As Henry said:

By our spontaneous and good will, we have given and conceded to archbishops, bishops, abbots, priors, earls, barons, and all of our kingdom, these below written liberties to be held in our kingdom of England in perpetuity.

So churchmen and laymen, separate when it came to the concessions in 1215, were now together. The king’s free will, only proclaimed when granting the church’s liberties in 1215, was now proclaimed for the liberties of everyone. The new preamble and conclusion to the Charter showed something else as well in which we may detect Langton’s ideology and influence. This was a new inclusivity. The 1215 Charter had been granted just to the free men of the kingdom. The 1225 Charter was granted to ‘everyone’ – ‘omnes’ – which meant to everyone, free and unfree alike. By the same token, it was ‘everyone’ who was said to have granted the tax that secured the concessions. That unfree peasants had consented to the tax was, of course, a fiction, but they certainly had to pay it and thus could feel a stake in the Charter.

The Charter of 1225 was also validated in a new way at its end. With any suggestion of coercion removed, it was possible to restore the king’s promise, omitted in 1216, not to seek anything to invalidate the Charter. If he did, it was to be held ‘as nothing’. The Charter was also witnessed by all the kingdom’s great and good, whatever side they had taken in the war. The Charters of 1215 and 1216 had merely listed the king’s partisans as his advisers. The Charter of 1217 had hardly listed any advisers at all. None of these Charters had witness lists. The 1225 Charter was quite different. It made no reference to the king’s advisers at the start, but had a great list of witnesses at the end. Sensing the importance and novelty of this, the copy of the Charter made soon afterwards at Cerne abbey in Dorset set out the witness list in beautifully elaborate fashion, and then wrote out the place and date of issue in capital letters.39 The witness list was headed by Langton, eleven bishops and twenty abbots. Hubert de Burgh, as justiciar, headed the laymen, followed by nine earls and twenty-three other magnates. Eight members of the twenty-five barons from the Charter of 1215 – including Robert fitzWalter, John de Lacy and Robert de Ros – together with many other former rebels, including Reginald de Briouze, brother of the murdered William – now rubbed shoulders with such loyalists as the earls of Chester and Derby, William Brewer, Peter and Matthew fitzHerbert, Brian de Lisle and Peter de Maulay. Doubtless Saer de Quincy would have been there too, but he had died on crusade in 1219. The Charter was no longer a party document.

The church’s support for the Charter was very clearly seen in the large number of ecclesiastical witnesses. It was also seen in something else of vital importance for the Charter’s future. In 1215 Langton had felt unable to support John’s Charter by launching sentences of excommunication against those who transgressed it. There had been no sentences in either 1216 or 1217. But 1225 was different. Because of its new validity, Langton and his fellow bishops now pronounced a sentence against all who contravened the Charter.40 This became the precursor of further sentences promulgated in 1237 and 1253, the second with great passion and publicity. The church was fully mobilized behind Magna Carta. That was an important reason for the central place it obtained in public life.

There is just one curious addendum to all this. The 1215 Charter had been given by the hand of the king. Those of 1216 and 1217 had been given by the hands of the papal legate and the regent. The 1225 Charter was given by no one at all. It just ends by saying it has been ‘given at Westminster’. Why was it not given by Richard Marsh as chancellor? After all, there was no legate or regent any more, and no tradition of charters being given by the justiciar. Why, even more, was it not given, like the Charter of 1215, by the king? Surely that would have befitted its new status. I have no ready explanation for this. It is possible that Marsh was absent, for he does not appear among the episcopal witnesses of the Charter. Perhaps the failure to name the giver was connected in some way to his claims and sensitivities.

There is one other feature of the 1225 Charter that owes more to later editors than to anything in the contemporary record. This is its division into chapters and numbering. The Charters of 1217 and 1225 are for the most part identical apart from their prefaces and conclusions. Yet the former is conventionally given forty-seven chapters and the latter only thirty-seven. The reason is that several chapters that appear on their own in 1217 are amalgamated in 1225. Thus the famous chapters 39 and 40 in the 1215 Charter appear as chapters 35 and 36 in 1217 and as chapter 29 in 1225. The conventional numbering of the 1216 and 1217 Charters is actually that of Blackstone’s of 1759. He was guided by the numbering that he had already given to the Charter of 1215. When he came to the Charter of 1225, however, he was presented with a difficulty, for this had been printed with numbered chapters in the early sixteenth century. The number of chapters was thirty-seven, which went back to the numeration found in copies of the Charter made in the late thirteenth and early fourteenth centuries. Other copies of that date, however, have numbers both higher and lower. Such variations were hardly surprising. Since the engrossments had now lost touch with any chapter-by-chapter negotiations, the capitals that began new chapters no longer had the same emphasis as found in 1215. This allowed copyists to make their own judgements about the divisions. Thus sometimes ‘29’ is a single chapter, sometimes it consists of two chapters. Blackstone, however, when numbering the 1225 Charter, decided to stick with the first printed edition and its thirty-seven chapters. It has been thirty-seven ever since, thus bringing about the disjunction with the numbering of the charter of 1217.41

THE NATURE OF THE 1225 CHARTER

The Charter of 1225, apart from its new preamble and conclusion, was virtually identical to the Charter of 1217. Roger of Wendover went further and declared that it was identical to the Charter of King John in 1215. Here he was wrong. There were many differences between the 1215 and 1225 Charters. Did these differences end up by making the final Charter, assuming it was obeyed, more or less restrictive on kingship? The question cannot be answered in any clear-cut fashion.

The greatest difference between the 1215 and 1225 Charters was the absence of the security clause in the latter, which meant the 1225 Charter itself contained no constitutional means for its enforcement. In that sense it was far weaker than its 1215 counterpart. Since, however, such a clause, if implemented, might have destroyed the 1225 Charter altogether in a new civil war, it was arguably better off without it. Something, moreover, had been introduced in its place – the threat of excommunication. The same change was made to Hungary’s Golden Bull in 1231.42 It remained to be seen, however, whether excommunication would be in any way effective. If it was, it had one significant advantage over the arrangements in the security clause of 1215. They had been directed simply at the king and his ministers. The penalty of excommunication, on the other hand, would be incurred by any violators of the 1225 Charter, and so equally threatened magnates and their officials. Out with the security clause also went the chapters from the 1215 Charter dealing with John’s unjust fines and disseisins. Had some means to redress these been provided, they would certainly have been exploited by barons and baronial widows under Henry III. The reason nothing was done was almost certainly due to the government’s fear of stirring up dispute. Those with grievances were thus left to pursue them, without help and encouragement from the Charter, through a petition to the king or legal actions in the courts.

For the localities, the omission in the 1225 Charter of chapter 25 from 1215, banning the increments and profits that John had demanded from the counties, was a major loss, and one the government was to exploit. On the other hand, the Charter’s new chapter on the running of the county and hundred courts (chapter 35 in 1225 and chapter 42 in 1217) offered some compensation, and was vigorously defended and exploited by county knights.43 Despite the offer in the Charter of 1216, nothing had come back in on debts to the Jews. Consequently the king could still demand the interest as well as capital when they came into his hands. He did, however, later reaffirm the 1215 Charter’s ban on interest accruing during minorities.44 On the face of it, there was also a very serious omission in the field of taxation for it no longer required the kingdom’s common consent. The 1225 Magna Carta said that everyone had given the tax in return for the Charter, but failed to lay down such consent as a pattern for the future. As far as the Charter was concerned, the king could levy taxation at will. Against these omissions, contemporaries might weigh the introduction of the Forest Charter. Of this, too, Henry III provided a new version in 1225, now embellished with a preamble and conclusion the same as Magna Carta’s. If the Forest Charter could be enforced, especially in the area of Henry II’s afforestations, it promised a very major diminution of royal power.

In terms of the social balance within the Charter, the changes since 1215 had, in some ways, strengthened the authority of lords over their tenants. That is not surprising. The great men of the realm, during the minority of Henry III, were essentially in control of government. The earl of Chester had already been obliged to issue a charter passing down to his tenants concessions such as those in the 1215 Charter. He and his fellows now wished to safeguard their positions. The new Charters thus continued the work of Magna Carta in protecting the interests of ‘the lord of the fee’.45 In two chapters introduced in 1217, no free man was to alienate land if it prevented him performing the service that he owed to the lord of the fee; and, if anyone gave land to a religious house in such a way as to deprive the lord of his due service, the lord of the fee could take possession of it.46 The general run of free tenants was discriminated against when only the demesne carts of knights (which would here include barons), ladies and ecclesiastical persons were protected from seizure by sheriffs and bailiffs.47 At the end of the 1217 Charter, the stipulation in 1215 that everyone should pass the concessions down to their own men was retained, but now seemed qualified by a new passage, which immediately followed: ‘saving archbishops, bishops, abbots, priors, Templars, Hospitallers, earls, barons, and all other persons, ecclesiastical and secular, the liberties and free customs which they had before’. One wonders whether there was any debate about this, because in the Forest Charter the saving clause comes before rather than after the passage about the passing down of the concessions, so no longer qualifying it. In 1225, moreover, the Charter itself adopted the Forest Charter’s order. Does one detect here Langton’s influence?

Magnates also gained by what was left out of the 1225 Charter. Nothing specific in the new regulations about the hundred courts showed that they applied to the hundreds, rapidly increasing in number, which were in private hands.48 It was the sheriff or his bailiff who was to hold the tourn only twice a year.49 It was the sheriff who was to be content with what had been taken at the view of frankpledge during the reign of Henry II. This was no innocent and unnoticed omission, for, in 1234, Henry III sought to correct it. In August of that year he drew attention to the clause at the end of Magna Carta, and went on to say that, as a consequence, ‘archbishops, bishops, earls, barons and our other magnates’, should observe the Charter towards their own men. The king then got to the point, which was that the chapter in Magna Carta limiting meetings of the hundred court to two a year should be observed in private hundreds as well as in royal ones. Although the king soon issued another proclamation, explaining that it was only the tourn which was to be twice a year, and that routine meetings of the hundred should be every three weeks, he again made clear that this was to apply in ‘the courts of magnates’ as well as those of the king.50

Great lords were also behind the omission from the Henry III Charters of anything about the common consent to taxation. The 1215 Charter, of course, had said that consent was necessary for the levying of both scutages and aids (other than aids due on the three customary occasions). The king had good reason to object to this when it came to scutages, since he could see the duty to pay them, in place of military service, as integral to the tenurial obligations of his tenants-in-chief. But the removal of the demand for consent to scutages, in favour of just saying that they should be levied as under Henry II, made it all the more possible to retain something on consent to aids. One can see why great lords might think that was both unnecessary and objectionable; unnecessary because, especially in current conditions, they knew that it was simply impossible for a king to raise a tax without consent; objectionable, because if aids levied by the king were restricted and needed consent, so might the aids that magnates sought to levy on their owntenants. A change to the 1216 Charter shows just that thinking, and reveals the baronial reason for leaving out the chapter on consent. For out with it, as a natural corollary, went the chapter that prevented lords taking more than the three customary aids from their free men. Magna Carta thus came to lack the chapter that had most explicitly favoured under-tenants in the Charter of 1215.

Offsetting this balance tipping against them, under-tenants made one significant gain. In its chapter 3, the 1215 Charter had been concerned with the ‘heir of any such one’, referring here to the heir of the tenant-in-chief whose relief was regulated in chapter 2. It had laid down that such heirs, when coming of age, having been in wardship, should succeed to their estates without payment of a relief or fine. To this chapter the Charter of 1216 made a significant addition, widening the chapter’s scope in such a way as to protect under-tenants from their lords. Thus it now laid down that the ‘lord’ of ‘any such one’ was not to have his wardship before taking his homage. The use of ‘lord’ here instead of ‘we’, that is the king, was deliberate and showed that the chapter, despite the retention of‘any such one’, was meant to apply to lord—tenant relations as well as relations between the king and his tenants-in-chief. In insisting that heirs should do homage before being taken into wardship, the aim was to protect their rights and ensure that they did indeed succeed when they came of age. That this was done in 1216, in the middle of the war, shows how important the issue was for knightly under-tenants. It was an issue of long standing, for the Assize of Northampton of 1176 had asserted that the lords should take the homage of underage heirs. That lords were uneasy about the new provision in 1216 is shown by the way they inserted a saving clause. They were not to lose the wardship if the heir, while still underage, became a knight. This again suggests the knightly audience to which the new clause was meant to appeal.51

When it came to local affairs, it was panels of knights who acted as the ‘good men’ in each county empowered by the Forest Charter to establish the afforestations of Henry II. Here the knights gained great local power, which they used with a will.52 The knights, however, bulked less large in the 1225 Charter than in that of 1215. The stipulation that the king’s judges should hear the assizes with four knights of the county was a poor substitute for the judges having to sit with four knights elected in the county court. There were also no longer the twelve knights elected in each county to abolish the malpractices of the king’s officials. Nothing was done to revive these groups in a different form by giving them a standing commission to hear complaints about breaches of the Charter.

In Henry III’s Charters, improvements were made to the benefit of widows. If the Charter of 1216 prevented them staying in castles while their dowers were assigned, they were to have a suitable house in its place and (by an addition in 1217) a reasonable share of the common goods for their maintenance. The 1217 Charter also defined dower itself in terms very much to their benefit (and also, of course, to the benefit of any second husband). It was to be a third of ‘all the land’ that the husband had held in his lifetime (which meant during the lifetime of his marriage), unless less had been agreed at the time of the wedding. This meant that widows were entitled to a third of the property that their husbands had taken into the marriage and also a third of any subsequent acquisitions. Although this may have recognized the law as increasingly practised before 1215, it was still valuable to have it defined in the 1225 Charter, for both Glanvill and Bracton confined dower to what the husband held at the point of marriage.53 This was some compensation for widows no longer able to complain about the unjust fines exacted from them by King John. So was the inclusion of ‘ladies’ in the chapter (21 in 1225) protecting the demesne carts of knights and ecclesiastics from seizure.

Small but significant alterations in the new Charters were made to do down the unfree peasants.54 Chapter 15 of the 1216 Charter made it clear that villeins were only protected from excessive amercements when imposed by the king, so not, therefore, when imposed by their lords. The 1217 Charter, in a further change to the same chapter, deprived the king’s own villeins of any protection under its terms. As far as the Charter was concerned, the king was thus able, just like any lord, to amerce his villeins as he wished. There was also a telling change to chapter 39 of the 1215 Charter. That had protected free men from unjust disseisin without specifying the nature of the property involved. It could thus be argued that it protected a free man who held land in villeinage. The 1217 Charter made clear this was not the case by now stating that a free man was not to be disseised of his ‘free tenement’.55 In other words, he could be disseised of any land owing villein customs and services. More positively, unfree peasants might certainly hope to gain from the new chapter which limited the sheriff’s exactions at the view of frankpledge when he inspected the tithing groups (chapter 42 in 1217, chapter 35 in 1225). However, the chapter failed, as we have seen, to make clear that it applied to private hundreds. The Forest Charter itself did something for the unfree in directing that ‘no one’ was to suffer death or mutilation as punishments for offences against the beasts of the forest. That this was deliberately designed to include the unfree is shown by its use of ‘no one’, for elsewhere, with one exception, the beneficiaries of the Forest Charter were free men. The fact that the chapter went on to specify imprisonment as the punishment, when the offenders had not the resources to pay amercements, shows how poor they were expected to be. The Forest Charter had one other chapter of broad social appeal, when it took over from the 1215 Charter the stipulation that ‘men’ outside the forest need not come before the forest justices. For the rest, the beneficiaries in chapter after chapter of the Forest Charter went no lower than free tenants or free men. It was thus archbishops, bishops, abbots, priors, earls, barons, knights and free tenants who were to enjoy their woods as they had existed at the time of Henry II’s coronation. It was, however, a more exclusive group, just archbishops, bishops, earls and barons, who had the privilege of taking one or two beasts as they rode through the royal forest, provided they blew their horns first lest they ‘seem to be doing it furtively’.

The texts of the 1225 Magna Carta and Charter of the Forest became definitive. Henry III, Edward I and their successors never issued new versions of the Charters. They simply confirmed those of 1225. It is thus the 1225 Charters, or what is left of them after various repeals, which are on the statute book today.56 The mere existence of the Charters did not, however, ensure either their enforcement or their continued relevance. Did they make a difference? The final chapter addresses that question.

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