If the Charters were to make a difference, it was vital that they should be well known, both in their general principles and in their detail.1 Here they were helped by the confirmation of the 1225 Charters at intervals throughout the century. In 1237, in return for a grant of taxation, Henry III confirmed the liberties ‘both in our magna carta and in our charter of the forest, notwithstanding that the foresaid charters were made when we were of minor age’.2 This removed any last doubt about the Charters, because Henry had granted them in 1225 while he was still under twenty-one. The witnesses in 1237 included three of John’s advisers in the 1215 Charter, Peter des Roches, William, earl of Warenne, and Hubert de Burgh, as well as the sons of William Marshal, William Longespee and Alan Basset. There were three survivors of the twenty-five barons, John de Lacy, Richard de Percy and Richard de Munfichet, together with the sons of Eustace de Vesci and Robert de Ros. As Holt remarked, ‘Magna Carta was secured within a generation but only just’.3 After 1237, Henry III confirmed the Charters, with great solemnity, in 1253 and 1265, as did Edward I in 1297 and 1300.
PROCLAMATION AND COPYING
Both the new versions of the Charter and the subsequent confirmations were linked to proclamations of the contents and distributions of the texts.4 A start here had been made in 1218, when the sheriffs were sent engrossments of the Charters of 1217, and told to read them in their county courts, ‘having gathered together the barons, knights and all free tenants of the county’. Then, in 1225, the Charters were again sent to the counties, where the sheriffs were ordered to read and proclaim them.5 In 1255, following his confirmation of two years before, Henry III ordered further proclamations in ‘full county court’. Ten years later, the short-lived Montfortian government sent the 1225 Charters to the counties, where they were to be kept by ‘trustworthy men elected for the purpose’ and read twice a year in the county court.6 In 1297, echoing what had happened in 1215, the 1225 Charters were sent to every cathedral, with orders that they be read twice a year ‘before the people’. They were also sent to judges, sheriffs and town officials, with orders for their publication. In 1300 the sheriffs were to read the Charters four times a year ‘before the people in full county court’.7 We do not know the language of these readings, but they were probably in French as well as Latin. The 1215 Charter had been translated at once into French, and later in the century it was translated again. Equally translated were the Charters of 1217 and 1225.8 There was also some move to put the Charter across in English. The 1253 sentence of excommunication against violators of the Charter, as confirmed by the pope, was ordered to be published in French and English. In 1300 Edward I, according to a St Albans chronicle, ordered ‘Magna Carta’ itself to be declaimed in Westminster Hall, both ‘literally’, so presumably in Latin, and then ‘in the language of the country [lingua patria]’.9
Of course, whatever the language, these readings can only have gone so far. They were probably one-off rather than regular events, since the schemes of 1265, 1297 and 1300 for several readings a year almost certainly came to nothing. Simon de Montfort’s regime collapsed within five months of confirming Magna Carta and Edward I went back on his promises. The proclamations helped raise awareness of the Charters, but can scarcely have got across their complex details. It took me thirty-nine minutes to read out the 1225 Charters, so if they were proclaimed in more than one language, the exercise took well over an hour. Some in the county court may have listened with rapt attention. Others probably went out to the ale house. For getting the detail across, the important things were the actual texts. These were available in cathedrals and elsewhere in the engrossments of 1215, 1216, 1217 and 1225, and in the confirmations of 1265, 1297 and 1300, all of which contained the full 1225 texts. Judging from what survives, these texts were not circulated in equal measure. There is only one known engrossment of the 1216 Charter, that at Durham cathedral. No original confirmations from 1265 survive and one suspects they were not widely distributed, given the political situation. By contrast, there are four engrossments surviving from 1215, 1217 and 1225, together with four of the 1297 confirmation and five or six of the 1300 confirmation.10
Alongside these governmental efforts to publicize the Charters, there were also the unofficial efforts of the church. In 1254 each diocese was sent transcripts of the 1225 Charters so that they could be copied out. In 1279 Archbishop Pecham ordered copies of Magna Carta to be put up in cathedral and collegiate churches ‘so that everyone entering the church can plainly see it with their eyes’. As a safeguard against wear and tear, he even laid down that the texts were to be renewed each year. In fact, the copies were soon taken down from the church doors, Edward I objecting to this independent initiative, but people now knew where to find them.11
From these various texts numerous copies of the Charters were made, and these in turn spawned further copies. The search is ongoing but I have, at present, records of well over a hundred copies of the John or Henry III Magna Carta made in the century after Runnymede.12 Over thirty of these are of the 1215 Charter. Of the remainder, four come from the 1216 Charter (including the two in the French royal archives), ten from the 1217 Charter, thirty from the Charter of 1225, twenty from various conflations of 1217 and 1225 (of which more shortly) and over thirty from the confirmations of Edward I.13 This shows the success of Edward I’s proclamations, but also that the Charter was well known in some form before then. The greatest repositories were the unofficial legal collections called by modern historians ‘statute books’, followed by monastic cartularies and chronicles. That knights made their own records is shown by both the 1217 Forest Charter and the 1225 Magna Carta appearing in the cartulary of the Northamptonshire Hotot family.14
This plethora of material created some confusion. Many copies of the 1215 Charter, even in statute books, were not of the final, authorized text. Here lay the origin of the belief that the baronial relief was only 100 marks, a sum that was eventually made official when it featured in the 1225 text issued in 1297.15 There was even more confusion over Henry III’s Charters, for frequently copied texts were ones that conflated the versions of 1217 and 1225. The conflations took various forms, but often had the Charter beingissued on the advice of Guala and the Marshal, as in 1217, while including Henry acting spontaneously and of his good will in return for a tax, as in 1225. Many conflations also have the Charter being given by the hand of the chancellor, Richard Marsh, thus containing material apparently from drafts.16 In origin, these conflations, arising from misguided attempts to combine the texts of 1217 and 1225 into a single Charter, were the product of considerable editorial work. They show interest in Magna Carta’s detail and actually became better known than straight copies of the 1217 Charter. Interest in the detail is also shown in the way the chapters were numbered and occasionally annotated with marginal comments indicating the subject matter. At Cerne abbey in Dorset interest was shown in another way. A clerk, writing out the 1225 Magna Carta and Forest Charter, had the clever idea of combining them into one. The text was then doctored further by a colleague adding in passages found in the 1217 Charter omitted in 1225.17 At St Albans, when Matthew Paris finally obtained an authentic copy of the 1215 Charter, he made determined efforts to correct Roger of Wendover’s version, which was a wondrous conflation of the texts of 1215, 1217 and 1225.18 There were also attempts to bring the Charter up to date, the most conspicuous being a single-sheet copy that combined the Charters of 1217 and 1225, and then supplied the date of 11 February 1252, as opposed to 1225, together with a first witness to suit, namely the archbishop of Canterbury, Boniface of Savoy.19
Many contemporaries, however, were quite aware, as Paris came to be, that the Charters of John and Henry III were different animals. Thus, in statute books and cartularies, John’s Charter sometimes preceded Henry’s, and was called the charter, provisions or statute of Runnymede, as against Henry’s Magna Carta. Copyists give no sign that the 1215 Charter might be invalid, and superseded by the Charter of Henry III. Pope Innocent III’s condemnation of John’s Charter was rarely copied.20 There are likewise few copies of the Charter of 1216, with its observation that some parts of the earlier Charter had been omitted as ‘doubtful’. Contemporaries clearly thought the 1215 Charter was still operative. At the parliament of October 1255, the magnates complained that they had not been summoned according to the terms of Magna Carta. This must have been a reference to the Charter of 1215, since the chapter on the form of summons was dropped from the later versions.21 On a more detailed point, a defendant in a legal action under Edward I claimed that his case should be decided by the ‘law of the March’ in accordance with the ‘statute of Runnymede’. This chapter had been present in the Charter of 1216, but was omitted thereafter.22
The abundance of material, whatever its accuracy and validity, all made the detail of the Charter known. It became far more than a vague symbol of good government. In 1219 the whole county court of Lincoln, defending ‘the common liberty of all the kingdom conceded and sworn’, backed the former rebel Gilbert de Gant when he complained of disseisin ‘without judgement’. This seems a clear reference to what had been chapter 39 in the 1215 Charter.23 Next year, the stewards of the ‘magnates’ of Yorkshire refused to pay a tax on grounds that echoed the chapters on consent to taxation in the 1215 Charter.24 As early as 1221, a defendant in an Essex case over the succession to a mere twenty-seven acres of land, one Thomas Crowe, was able to move the litigation from the bench to the justices in eyre on the grounds that ‘the king by his charter has conceded that assizes of this kind should be taken in the counties and not outside’, a reference to chapter 13 of the 1217 Charter.25 This appears to be the first successful appeal to Magna Carta in the courts. In 1226 knights in Lincolnshire stoutly defended their interpretation of the chapter on the holding of the county and hundred courts against the activity of the sheriff. It was probably contentions over this chapter that led the king, in the same year, to summon before him four knights from eight counties to settle disputes with the sheriffs over articles in the Charter. Next year, four knights from each county, elected in full county court, were ordered to bring forward complaints against the sheriff ‘on articles contained in the charter of liberties’.26
These individual examples can be put in a wider context. In pioneering work, Faith Thompson found specific references to twenty-four of the thirty-seven chapters of the 1225 Charter in thirty different years between 1221 and 1306. The social range of those appealing was broad. It included earls, barons, county knights, free tenants, townsmen and churchmen. Thompson compiled this list in the 1920s from the very limited material then in print. A comprehensive trawl through all the sources (especially the plea rolls) would probably increase the references many times over.27 The Charter was known and valued from top to bottom of society. When the king’s council and ‘the magnates of England’ in 1237 had to decide an unprecedented case about the succession to the earldom of Chester, they turned to ‘the charter of liberties’ for guidance.28 The knights of Wiltshire deposited the 1225 engrossment of the Charter sent to their county for safekeeping in Lacock abbey. (It is now in the British Library.) Around 1300 the peasants of Bocking in Essex appealed to Magna Carta in their complaints against the malpractices of their lord’s bailiff in the manorial court.29
THE IRRELEVANCE OF THE CHARTER
It was one thing for the Charters to be known, another for them actually to impact on the operations of government. On the extent of the impact, contemporaries gave a depressing verdict. They complained over and over again that the Charters were not being enforced. Yet rather than find effective ways to enforce them, they turned to more radical and detailed schemes of reform which suggested that the Charters were at best in need of fundamental strengthening, at worst were becoming out of date. Indeed, the politics of England in the hundred years after 1215 could be seen as a commentary on the inadequacy of Magna Carta.30
One immediate problem was that the new versions of the Charter provided no mechanism for reversing the unjust disseisins of King John, something made worse by the fact that the restorations made in 1215 had no validity. The 1225 Charter, by a small addition, indicated that the chapter forbidding unjust disseisin was in no way retrospective: no free man was to be disseised ‘henceforth’.31 The best those with grievances could do was to bring legal actions against the current incumbents, alleging arbitrary disseisin by King John. In this way Humphrey de Bohun, earl of Hereford (son of the Henry de Bohun of John’s reign), eventually forced the earl of Salisbury’s widow into a compromise over Trowbridge.32 Such actions, however, were rare. Nothing more was heard of the Quincy claim to Mountsorrel or the fitzWalter claim to Hertford. The new Charters equally provided no mechanism for overthrowing John’s unjust fines and amercements. These all remained on the pipe rolls. Few had imitated John de Lacy’s nimble footwork in 1215 when he secured a pardon and then two months later joined the rebellion. The abbot of St Albans, in return for four palfreys worth 20 marks, did manage to get the 300-mark forest amercement imposed under John ‘by will rather than reason’ pardoned.33 On the other hand, the unpaid Stuteville fine of 10,000 marks provided the means by which Hubert de Burgh secured hold of Knaresborough and Boroughbridge. The Mandevilles and their Bohun heirs remained saddled with Geoffrey de Mandeville’s fine to marry the countess of Gloucester, although they had reaped absolutely no benefit from it. At least the king was less energetic in exacting his half of the fine than were Archbishop Langton and his successors when it came to the half granted to Canterbury.34 Widows likewise were left owing the sums they had promised to remain single and secure their dowers, marriage portions and inheritances. Under John, Margaret, widow of Robert fitzRoger, had not begun to pay off her fine of £1000 to have her inheritance and be allowed to stay single. In the minority of Henry III she was made to pay it off at 100 marks a year.35
For immediate political reasons, Henry III entered full power in January 1227, when still only nineteen, but it was not until 1234 that he finally rid himself of Hubert de Burgh and Peter des Roches, the overweening ministers whom he had inherited from his father. Henry’s personal rule thereafter, down to its collapse in 1258, seemed in some ways very different from John’s. Henry was uxorious and pious. He rebuilt Westminster abbey in honour of his patron saint, Edward the Confessor. He was physically lazy and liked to linger and luxuriate at his favourite palaces in the south. If he had to go north, he hurried back to ‘the delight and rest’ of Westminster.36 At heart, Henry wished to be a just and consensual king, giving peace to his people, in the supposed mould of the Confessor. In this respect he was perfectly fitted to a post-Magna Carta age. Yet Henry’s rule also raised problems with which the Charter did not deal. Henry was, as contemporaries said again and again, ‘simplex’, meaning essentially naive, not something that could ever have been said about King John – as Holt once remarked to me with a laugh! This would have mattered less had Henry, here departing from his Confessorian model, not also been ambitious, if in an armchair kind of way. The result was a series of ill-conceived policy initiatives, decided often in private, which culminated in the 1250s in an absurd scheme, concocted by the pope, to place Henry’s second son on the throne of Sicily. This project totally alienated the church, which had to find the funds. There was nothing at all in the Charter that prevented the king signing up to such enterprises or pursuing whatever foreign policies he liked.
The Charter also placed no restrictions on the king’s ability to appoint counsellors and give patronage. This too became a major issue as Henry, warm hearted, open handed and family orientated, established in England both the Savoyard uncles of his wife, Eleanor of Provence, and his own Poitevin half-brothers, the offspring of his mother’s second marriage after she returned to Angoulême in 1218. The results were factional struggles at court between the two groups, in which native magnates became involved.37Since the Charter afforded no help in any of these areas, new schemes of reform emerged that sought to give to parliaments (as great assemblies of the kingdom were increasingly being called) the right to choose the king’s ministers; these ministers would then exercise a proper control over patronage, expenditure and the dispensation of justice. Such a programme was already apparent in the ‘Paper Constitution’ of 1244. It was finally realized in the great political revolution of 1258 when the Provisions of Oxford reduced the king to a cipher and placed government in the hands of a magnate council of fifteen, responsible to three annual parliaments. The Charter seemed left far behind.38
It seemed left behind too when it came to the growing nationalism of the period between 1258 and 1265, in which hostility to the king’s foreign relatives played a major part. The 1215 Charter certainly expelled the foreign mercenaries, who had ‘harmed the kingdom’, and dismissed some of John’s foreign servants from office. But it was the reformers of 1258 who demanded that the king’s castles be entrusted to men ‘born of the kingdom of England’, and defined ‘disparagement’ as marriage ‘to men who are not of the nation of England’. In 1263 Simon de Montfort added to the Provisions of Oxford a new ‘statute’ which confined office to Englishmen, and, with certain qualifications, expelled foreigners from the kingdom ‘never to return’.39
Churchmen had their own reasons to deem the Charter inadequate. True, they appealed to chapter 1, which set the church free. They made great efforts to enforce the Charter generally. But they also drew up long schedules of complaint about issues on which the Charter was silent. In two of these schedules from the 1250s, the Charter only appears in six of the sixty-seven clauses.40 It was no specific help when, for example, the government challenged the jurisdiction of church courts, the immunity of clerks from criminal prosecution, and the claims of various bishops and monastic houses to have the amercements that were imposed on their men by the king’s judges.
The Charter seemed equally inadequate when it came to Henry’s rule in the shires. Here changes at the centre of government had a malign impact locally. After 1234, as he could perfectly well do under the Charter, Henry left the office of chief justiciar unfilled.After 1238 he no longer had a chancellor in day-to-day charge of the seal. The suspension of these offices impacted locally because there were no longer great, identifiable ministers at the centre to whom those suffering from local officials could go with their complaints. Indeed, it was often unclear who actually held the seal. This did not matter to great men, native and foreign, within the circle of the court. It mattered a lot to the magnates, knights, free tenants, and churchmen and townsmen outside it. The ‘Paper Constitution’ in 1244 was aware of this problem. The four counsellors it imposed on the king were to hear complaints and help those suffering injustices. In 1258 the Provisions of Oxford restored the office of justiciar with a specific brief ‘to uphold right to all persons’.
These changes at the centre became all the more serious as Henry’s government began to press down harder on local society. With his income reduced by Magna Carta, and failing to get general taxation from parliament after 1237 (for who would give money to such a king?), Henry had no alternative but to make money in other ways. While his total revenues were far smaller than those of his father, he hit hard at certain targets. He thus exploited the dropping of chapter 25 of the 1215 Charter. This had banned the exaction of increments by name and profits by implication from the counties, thus gravely restricting the money which could be made from the revenues that went towards the county farm.41 In the process, it had hoped to make the sheriffs, who had to raise the extra sums, less oppressive. Unrestricted by this chapter, between 1241 and 1258 the increments imposed on the counties steadily rose in size. Again it was left to the reformers of 1258 to deal with the issue. Their plan was to get the sheriffs to account for all their revenues, and to give them salaries, which was to attempt the same result as chapter 25 but in another way.42
Magna Carta was equally no specific help when it came to the kind of people who were sheriffs. Even the stipulation that officials should know the law of the kingdom had been left out of the post-1215 Charters. Henry took advantage. His sheriffs, according to one schedule of complaint, were ‘men coming from far away and utter strangers in their counties’.43 The reforms of 1258–9, therefore, laid down that the sheriffs should be senior local knights, partly elected in the county court.44 Henry’s government also became more oppressive through the amercements imposed by the justices in eyre. Magna Carta, if obeyed, regulated the level of amercements and said their amounts must be determined by men of the neighbourhood, but it was silent about the range of offences for which amercements might be imposed. Henry’s judges, therefore, dreamed up new offences, amercing vills, for example, because not all over the age of twelve had come to coroner’s inquests. This was a practice that had to be banned by the reforming legislation of 1259.45
There was another great area where Magna Carta’s inadequacy was apparent, as indeed it had been from the start. This was its failure to protect men from oppression by their lords.46 One area of particular concern in Henry’s reign was the running of private courts, of both the hundred and the honour.47 With the growth of the common law, magnates could not compel tenants to litigate in their courts, but they could try to enforce a duty to attend, imposing heavy amercements on tenants when they failed to turn up.48In 1234 Henry had tried to make the Charter more relevant to private courts, but it was left to the legislation of 1259 really to tackle the issue of attendance. The Provisions of Westminster, in three lengthy chapters at the start, thus limited the obligation to attend ‘the courts of magnates’ and provided a remedy for those forced to attend them contrary to its terms. It also abolished in royal courts and ‘courts of barons’ the fine ‘beaupleder’, a fine offered before proceedings started, by those attending the court, to escape being penalized for omissions and mistakes in giving evidence. The contrast with the 1217/1225 Magna Carta’s regulations on the frequency of courts, which made no specific reference to those of magnates, is striking.49
The 1259 legislation also did more than Magna Carta in protecting tenants at the critical moment of succession, when there was always the danger that a lord might seek to deny a new tenant entry into his inheritance. The 1216 Charter had done something about this issue, laying down that a lord must receive a tenant’s homage before taking him and his lands into wardship. Now the legislation of 1259 made it possible for tenants to gain damages from their lords if they recovered their inheritances only after litigation.50
The contrast between the 1215 Magna Carta and the reforms of 1258–9 in how relations between lords and men were treated was strikingly apparent in the inquiries they both commissioned into local abuses. The inquiry by the knights commissioned by chapter 48 of the 1215 Charter had been entirely into the abuses of the king’s local officials. In 1258 the equivalent inquiry, by four knights in each county, was into the malpractices of ‘all persons whatsoever’. It was linked to a visitation of the justiciar and other judges, who were to hear complaints against both royal and magnate officials. Many complaints against the latter were indeed brought forward on these eyres. Both royal and magnate officials were also to take the same oath to act justly. The leading reformers even issued a special charter promising to submit themselves and their bailiffs to investigation and correction.51
There were several reasons why the grievances of knights and under-tenants bulked larger in 1258–9 than in 1215, thus moving the agenda on beyond Magna Carta. Such grievances had always been there but they were sharpened by the conditions of Henry III’s personal rule. His laxness and indulgence had made it possible for both his foreign relatives and English magnates to expand their local rule. The growing army of professional administrators gave them the means to do so.52 At the same time, the gradual weakening of the tenurial bond, the opportunities offered by the common law, and the increasing role they played in the running of local government gave knights and free tenants more independence and a louder voice.53 If knights in 1215 protested, as they may well have done, against narrowly baronial schemes of reform like the Unknown Charter, thus helping to move the agenda onto the Articles of the Barons, they protested far more visibly in 1259. At the October parliament a body of knights, described as ‘the community of the bachelry of England’, protested that ‘the barons’ had got all they wanted and had done nothing for ‘the utility of the republic’. The protest had a result, for it pushed through the Provisions of Westminster with its chapters about attendance at magnate courts and the succession of under-tenants.54
There were also ideological developments. The friars, who arrived in England in the 1220s, taught concern for the oppressed. Very much in that spirit, Simon de Montfort, in his will drawn up in 1259, sought to compensate ‘the poor people of my land … namely the cultivators’, whom he might have oppressed.55 Such sentiments help to explain another respect in which the reforms of 1258–9 contrasted with Magna Carta, namely the way they seemed to reach out to peasants, free and unfree. There was none of the blatant discrimination against the unfree found in Magna Carta. Investigations after the fall of the Montfortian regime show peasants in the armies, raiding bands and garrisons of the period. In 1265 itself, in a famous incident just after the battle of Evesham, the peasants of Peatling Magna in Leicestershire obstructed royalists going through the village, on the grounds that they were acting ‘against the welfare of the community of the realm and the barons’. Evidently, the peasants felt part of the community of the realm, and believed that the barons were acting in its interests.56 The rhetoric of the period was far more inclusive than it had been in 1215.57 The leading reformers in 1259 swore that their officials would take nothing unjustly from ‘free man or villein’. Likewise the justiciar set up by the reforms swore to give justice to ‘rich and poor, serf and free’.58 There was also some reality behind these sentiments. The legislation of 1258–9 benefited peasants, free and unfree alike, by limiting the numbers who had to come to coroners’ inquests, restricting the incidence of the ‘murdrum’ fine and abolishing the beaupleder fine in private courts.59 It was to the legislation of beaupleder, in a later form, that the peasants of Swaffham Prior in Cambridgeshire appealed when resisting the exactions of the prior of Ely.60 In striking contrast to what seems to have happened in 1215, key reforms in 1258 were proclaimed in English as well as French and Latin.61
Another contrast between 1215 and 1258–65 lay in the quality of leadership. There was no equivalent in the earlier period to Simon de Montfort.62 At the start in 1258 he was the most passionate and committed of the reformers. He upbraided backsliders and harped again and again on the oath everyone had taken to support the Provisions of Oxford. He was the only magnate who refused to accept the king’s recovery of power in 1261, instead retiring to France. He returned to England in 1263 to place himself at the head of a movement calling for the revival of the Provisions of Oxford. He was now the sole leader of the opposition. Between his victory at Lewes in May 1264 and his death at the battle of Evesham in August 1265, he was the effective ruler of England. No one had achieved such prominence in 1215. Equally no one was driven, as far as we know, by such a sense of idealistic purpose. At first sight, Montfort should have been the last person to lead a movement against the king, especially one with hostility to foreigners at its heart. He was a younger son of the great French noble, also called Simon de Montfort (of Montfort l’Amaury just outside Paris), who had led the Albigensian crusade and been canvassed as John’s successor during the plot of 1212. Montfort junior had come to England in 1230. He had made good the family claim to the earldom of Leicester and married Eleanor, Henry III’s sister.63 Surely he would now be a mainstay of the king’s regime. Not a bit of it. Montfort was driven into opposition by material grievances and personal slights. Surrounded by idealistic churchmen, and remembering the heroism of his father, he also came to see the cause of reform as a crusade. He believed that ‘the common enterprise’ must be about more than the selfish interests of the great barons. Had there been a leader like that in 1215, Magna Carta might have looked rather different.
Montfort certainly believed Magna Carta was important. Indeed, during the great parliament which he held between January and March 1265, he made Henry III confirm it, and ordered that its violators be severely punished.64 When, moreover, Montfort devised a writ allowing legal actions against the levying of the beaupleder fine in private courts, he cloaked it in the authority of the Charter, rather than in that of the 1259 legislation where in fact it appears.65 Yet Montfort’s regime depended, of course, not on Magna Carta but on the far more radical Provisions of Oxford. To them he added in 1263 the ‘statute’ against the aliens. The extent to which he had gone beyond the Charter was clear when it came to the composition of his parliaments. Parliament, as envisaged in the Charter of 1215, was an assembly composed entirely of tenants-in-chief. Although there was a move to include knights from the shires in 1254, this had only been for the purposes of getting a tax and in unusual circumstances. There were no county representatives called for in parliament as envisaged in the reforms of 1258. All this changed in the revolutionary period that followed, in large part thanks to Montfort’s drive and vision.66 With his allies, he summoned three knights from each county to a baronial assembly in 1261. In June 1264, after his victory at Lewes, he summoned from each shire four elected knights to parliament to discuss the affairs of the realm. And then, for his parliament of 1265 he summoned two knights from each county and two burgesses from each of the towns. This was the first time that knights and burgesses had been summoned together to parliament, the House of Commons in embryo.67 Here too Montfort had left the Charter far behind.
The inadequacy of the Charter was, therefore, very apparent by the end of Henry’s reign in 1272. The reign of his son, Edward I (r. 1272–1307), posed a set of new problems for which once again the Charter was of limited help. From 1294, Edward placed burdens on his kingdom as heavy as King John’s in order to support his wars in France, Wales and Scotland. He was made to confirm the Charters but he also, in 1297 and 1300, made a series of new concessions that brought them up to date. One key issue concerned the king’s right of prise or compulsory purchase. The Charter had something on this, insisting on prompt payment for the taking of corn and other chattels, and horses and carts.68 But it said nothing about the scale of such takings, and these Edward expanded way beyond what was customary. One of the new articles in 1300, therefore, regulated prise in detail, trying to make sure goods were only taken by authorized officials to support the king’s household.69
BREACHES OF MAGNA CARTA
If one problem with the Charter was its irrelevance, another was that even when it was relevant, it was not obeyed. A lengthy schedule from 1264, criticizing Henry III’s rule, thus started with all the ways in which he had breached the Charter.70 First up was Henry’s ruthless exploitation of ecclesiastical vacancies and his manipulation of elections, grievous breaches of his promise in the Charter to set the church free.71 A great deal of space was also devoted to Henry’s denial of justice, thus breaching chapter 40 of the 1215 Charter, which became part of chapter 29 in 1225. Such abuse did not affect the general run of people in their litigation against each other according to the forms of the common law. It very much affected them when up against Henry’s favourites and their followers. The latter were protected from legal actions and placed, so it seemed, above the law. As a result, their local officials felt they had a free rein. ‘If I do you wrong, who is there to do you right?’, asked William de Bussey, steward of the king’s half-brothers.72 The beneficiaries were not just the king’s foreign relatives. They also included great English nobles such as the king’s brother, Richard, earl of Cornwall, and Richard de Clare, earl of Gloucester. The victims were magnates outside the charmed circle of the court, together with knights, free tenants and local communities, many of whom finally made their complaints in 1258–9.73
The complaint that the Charters were not being enforced locally was put to Henry himself very clearly in 1254 in a letter from the regents, the king then being in Gascony. ‘Many complain that the Charters are not kept by the sheriffs and your other bailiffs.’ If, therefore, Henry wanted a tax, he must order the Charters to be upheld by the sheriffs and have this publicly proclaimed.74 Contemporaries were quite able to allege violations of specific chapters. In defiance of chapter 4 of the 1225 Magna Carta, wardships were being pillaged – there is no evidence in that case of their being entrusted to two men of the fee, as the Charter required. In defiance of chapter 18, chattels were being seized on the death of tenants-in-chief on the pretext of debts owed the crown – there is no evidence of the procedure being used by which letters patent were first to prove the existence of a debt. The king’s power over wardships was increased by the development of the office of escheator, unmentioned in the Charter, whose brief was to deal with land coming into the hands of the crown.75 Other alleged breaches of the Charter included amercements being imposed by justices, sheriffs, bailiffs and stewards at their will and pleasure, this instead of being assessed by local men according to the nature of the offence. According to a legal tract, called The Mirror of Justices, written in London in the late thirteenth century, if assessors were employed, then they sometimes had to act in the houses of magnates rather than in a public place.76 As the complaint here shows, this was another grievance against private as well as royal courts. Indeed, when in the 1260s, probably during the Montfortian regime, a writ was drawn up making possible legal actions against breaches of the amercements chapter in the Charter, it was directed against the lords of private courts. In the 1270s the bishop of Worcester was accused directly of breaching the Charter when imposing amercements in his hundred court of Henbury in Gloucestershire.77
Another area of local discontent concerned the forest. In 1225 the government at last accepted the counties’ interpretation of chapter 1 of the Forest Charter, and the result was extensive deforestation. Then, however, when Henry III assumed full power in 1227, some of the deforestations were reversed, on the grounds that chapter 1 only meant to deforest what Henry II had added to the forest, having restored the losses in Stephen’s reign. This was another grievance raised in 1258. It was raised again under Edward I. Between 1301 and 1305 he was forced to accept extensive deforestations under the Charter’s terms, only then in 1306, like Henry III, to reverse them.78
There was also debate and discontent over the government’s treatment of the new chapter introduced in 1217 (chapter 35 in 1225) on the running of the local courts. In 1234 the king had seemed to accept that, under its terms, the hundred and wapentake courts should be held by the sheriff only twice a year. This view lay behind the protests of the Lincolnshire knights in 1226 against the activities of their sheriff. Then, however, a couple of months later in 1234, the king changed his mind. He had some reason for doing so, because the chapter actually said that it was the tourn, the especially well-attended session of the hundred and wapentake courts, which was to be held twice a year. On other sessions the chapter was silent. The king now explained that the relevant chapter of the Charter had been read before the great and good of the kingdom. They had decided that just two tourns a year were insufficient for keeping the peace. Between such sessions, the courts of hundred and wapentake and the courts of magnates should meet once every three weeks. This was presented as a concession, since under Henry II, so the king said, fortnightly meetings had been customary.79 Local opinion was hardly appeased. In Lincolnshire, in 1237, the Charter was read again, this time in the hundred and wapentake courts, and it was asserted that they should only meet twice a year.80 Lincolnshire was not alone in straining the meaning of the Charter. In Northumberland, in 1269, ‘the community of the county’ complained that whereas, ‘according to the tenor of Magna Carta’, they had been free of the sheriff’s tourn, the sheriff, William Heron, had held two tourns a year, and amerced those who did not turn up ‘at his will’. Yet the Charter actually said nothing to justify such freedom from the tourn, and Heron could have said he was merely enforcing the two yearly tourns that it allowed.81
In the examples mentioned above at least the Charter was appealed to. Yet there are many cases where it was breached in silence, either because it was unknown or because it was thought to be irrelevant. When the justiciar, Hugh Bigod, visited Kent and Surrey in 1258–9, he heard complaints about the forest, the tourn, amercements, imprisonment and wardships, all of which could be seen as breaches of the Charter, yet the Charter was not once mentioned. While in the hands of one of the king’s Poitevin half-brothers, the woods and fish ponds of Geoffrey de Lucy had been destroyed and the buildings allowed to go to ruin – clear breaches of the Charter, but Lucy did not say so.82
If Magna Carta was being breached, what could one do about it? The answer was not nothing, but still not enough. By far the most striking attempts at enforcement lay in the ecclesiastical sentences of excommunication. These had begun in 1225 with that of Archbishop Langton. They continued in 1237, when Henry’s confirmation of the Charters was linked to a sentence promulgated by the archbishop of Canterbury, Edmund of Abingdon, one of Langton’s former pupils. Thereafter excommunications were pronounced at the time of all the confirmations. Easily the best known was that fulminated in 1253 by Archbishop Boniface of Savoy and thirteen bishops before a great audience in Westminster Hall. This sentence was given massive publicity by the church, and was copied into numerous cartularies and statute books, often alongside the Charters.83 Unfortunately, complaints that the sentences were ignored went hand in hand with complaints about breaches of the Charter.84 The sentences were supposed first and foremost to have a deterrent effect. The king and everyone else, it was hoped, would live in their fear, and act accordingly. Those who had incurred the sentence should seek absolution, and, of course, behave better in the future. In 1237 Henry III and his barons, ‘fearful’ that they had indeed fallen under the sentence, asked for absolution from Archbishop Edmund. They were given it with the warning not to violate the Charter again or they would relapse into their previous excommunicated state.85 The episode highlighted the value of excommunication, as opposed to the old security clause, in that it applied to everyone breaching the Charter, not just the king and his ministers. The trouble was that all this depended on the transgressors recognizing their faults and acting accordingly. If, on the other hand, they denied any misconduct, nothing happened. In 1253 there was an attempt to make the procedure more pointed. Anyone who did not acknowledge the violation was to incur the sentence of excommunication if, once warned, matters were not put right within fifteen days, this by the judgement of the ordinary, that is the bishop or the archdeacon. The king, however, refused to accept this entirely ecclesiastical procedure and said the cases were to be referred to the judgement of his court. Either way, these schemes seem to have had no practical effect.86
There were also various secular avenues for enforcing the Charter. An appeal to it was very likely to be upheld in the courts, as we see from Thomas Crowe’s case as early as 1221.87 When Edward I, in 1297, enjoined his judges to allow the Charters in all their points in the cases before them, he was affirming what had long been practice.88 In Crowe’s case, the violation of the Charter came up in the course of the proceedings, and was not the actual origin of the action. But it was also possible to begin a legal action by writ in cases where the Charter had been breached. One of the most significant and popular of such writs was that available to a widow seeking her ‘reasonable dower’. The writ did not mention Magna Carta’s provisions on dower, but in effect the litigation was a way of enforcing them.89 Other writs made specific mention of the Charter, most notably the one founded on the chapter about the levying of amercements. This, however, only appears in the 1260s, and hardly led to a flow of litigation, important though the issue was.90 TheMirror of Justices, trying to solve the problem of enforcement, suggested that those deprived of liberties in the Charter should recover them with damages by an action of novel disseisin. That may have been impractical, but it suggests something more was required.91
Another avenue for those seeking redress was through the evidence given by the twelve jurors representing each hundred during visitations of the justices in eyre. Several of the questions put to the juries by the judges, without mentioning the Charter, coveredissues it dealt with, as for example prises and the holding of pleas of the crown. Breaches of the Charter could also be raised under questions about the introduction of new customs and the excesses of the sheriffs.92 Given the personnel of the juries on hundreds, this was a way in which free tenants, including those from the peasantry, could ventilate their grievances. They could do so, moreover, without the time and expense involved in litigation by writ.93 There is, however, very little evidence that this was a route much followed. General eyres were only held once every seven years or so. The judges hardly encouraged appeals to the Charter, for, in their articles of inquiry, there was no question explicitly on the subject of Magna Carta. The only time a question relating to the Charter appeared was during the reforming eyre of 1259. It was not until 1280 that questions were introduced relevant to Magna Carta’s chapters on amercements and the tourn.94 It must also have been difficult to complain about sitting sheriffs and powerful magnates. The complaints against the sheriff William Heron only emerged after he had left office. In Heron’s case, moreover, the men of Northumberland went not direct to the eyre but to the king. Henry III then ordered the justices in eyre to stage an inquiry.95 A complaint to the king was thus another way of initiating an action about the Charter, but again this does not seem to have been a popular procedure, perhaps because it was not advertised and encouraged; and because it was not a regular procedure, the king’s response remained a matter of grace.
In all this, one obvious way of enforcing Magna Carta in the localities was not adopted, namely that of setting up permanent panels of judges in each county with commissions to hear complaints about breaches of the Charter. This would have made it much easier for lower sections of society to secure speedy redress. The need for such a procedure was perfectly appreciated. When William of Horton, a monk of St Albans and its legal expert, explained in the 1250s why the Charters were not observed, he said it was because ‘specific keepers are not appointed to hear the complaints of the community’. In fact, it was not until 1300 that three knights were appointed in each county to hear such cases.96 They did not last long, since Edward I soon reneged on his concessions. Anyway, the reform came seventy-five years too late. Had such panels been introduced in 1225, they might have had a real effect. The truth is that, while the king was very ready to proclaim the Charters, and say that everyone must obey them, he was never willing to set up proper procedures to see that that actually happened. To have done so would have risked creating rival centres of authority in the shires, a bit like those threatened by the twelve knights of 1215. Not surprisingly, the only occasion before 1300 when such of panels of knights were envisaged was during the short-lived reforms of 1259, and even here there was concern about how their work might affect the sheriffs in the performance of their duties.97 King John’s vision of the Charter as a vague symbol of good government with limited practical consequences seems to have been exactly that of his successors. Both Henry III and Edward I could actually have done more to distribute their actual texts. Apart from the Montfortian confirmation of 1265, there was no official distribution of the texts between 1225 and 1297; hence the need felt to concoct up-to-date versions such as that of 1252, and the importance of the church’s independent distributions. To these, as we have noted, King Edward actually objected and in 1279 ordered copies of the Charter to be taken down from the church doors.98
In dragging their feet over enforcing the Charter, the kings were, to some extent, at one with the great magnates. The latter might appeal to the Charter if they felt they were being denied justice, but as for having it enforced against themselves, that was quite a different matter. The last thing they wanted to see was a panel of knights in each county who might, like those envisaged in 1259, ‘inquire about the bailiffs of the great men in the land, and about the great men themselves’.99 Henry III repeatedly demanded that magnates themselves observe the Charter, but it was largely talk, in part designed to deflect the accusation that he was not obeying it himself. In reality, he was not prepared to upset his own officials or the great men of the land by any rigorous policy of enforcement. King and magnates seemed engaged in a conspiracy against everyone else.
THE TRIUMPH OF MAGNA CARTA
We have painted a pretty dismal picture of the Charter in the first years of its history. It is fortunately but a partial one. The Charter’s impact in the thirteenth century was actually very great. Its arrival does mark a ‘before’ and ‘after’ in English history. For a start, theefforts at publication and enforcement meant that the fact of the Charter was enormously well known. Even for those who knew merely the fact and not the details, the fact was massive, for it embodied the basic principle of the Charter. The king was now subject to the law. This idea had, of course, a long pedigree, but now its truth was proved in a document of unimpeachable authority and overwhelming fame. Many, moreover, did know the detail of the Charter. The ‘assertiveness and self-confidence’ of local communities ‘grew directly from its provisions’.100 Magna Carta was empowering. Although, moreover, many of the reforms of 1258–9 and the later legislation of Edward I went far beyond Magna Carta, in a real sense they were building on its foundations. One can see that in the way a great schedule of complaint against the rule of Henry III, drawn up in 1264, made its starting point the breaches of the Charter before going on to other abuses.101
In some areas, the Charter was arguably at least a little more effective than the complaints made out. Henry himself would have denied that he was in breach of the Charter when it came to the church. He was certainly guiltless of keeping bishoprics empty so that he could take their revenues, in the manner of the twelfth-century kings. The long vacancies in his time arose when he objected to the person elected, as King John’s charter acknowledged he could if the grounds were ‘reasonable’, and Henry would certainly have said they were that. If his officials breached the Charter in their ruthless exploitation of vacancies, Henry did sometimes try to restrain them.102 Under Edward I, there were no major disputes over episcopal elections. Indeed, in 1279, Edward accepted the papal appointment of the Franciscan scholar John Pecham as archbishop of Canterbury, despite having lobbied hard for his chancellor, Robert Burnel. The king’s conduct here contrasted sharply with that of John over Archbishop Langton.103
Some of the Charter’s most important chapters were obeyed. Nothing for earls and barons was more important than the £100 relief, and by and large that was the sum charged after 1216 for those inheriting when they were of full age.104 Since John had charged reliefs of hundreds, sometimes thousands of pounds, this was a remarkable change, one that hit both royal revenue and royal power.
The Charter also made a real difference to the widows of tenants-in-chief. The stipulation here, as in 1215, was that no widow should be forced to remarry if she wished to live without a husband, provided she gave security that she would not remarry without the king’s consent. The implication was that the marriages of widows were no longer in the king’s gift.105 At first sight, this seems to have had little effect since post-1215 government records frequently talk of such marriages as belonging to the king. In the fine rolls between 1216 and 1234, moreover, fourteen men offered the king money to marry widows. These offers are not, however, all that they seem. In three cases the need for the widow’s consent was mentioned, in one it had to be in writing.106 In others, what was probably being bought was the king’s consent to a marriage which had already been agreed by both parties, a consent which remained necessary under the Charter. In others again, the king probably accepted that the widow might refuse the marriage, and he was simply granting any fine she might make to marry whom she wished. In 1243 these were the terms under which Henry III granted the marriage of Margery, countess of Warwick, to his favourite, John de Plessis.107 Since the Charter acknowledged the need for the king’s consent, he was within his rights in demanding money to waive the right. What was no longer allowed was King John’s practice of charging money for permission to stay single, and here a real change is apparent. In his sixteen-year reign, there were fifty-nine fines made by widows for, among other things, such permission. In the twenty-six years between 1216 and 1242, the fine rolls reveal only five.108 The thirteenth century was distinguished by many famous noble women who, profiting from the terms of the Charter, elected to remain single, and enjoyed long years of widowhood. One such widow, Isabella, countess of Arundel, upbraided Henry III to his face about breaches of the Charter.109 The king was also less than stringent in enforcing his right to consent. As far as can be seen, there was no routine system for taking security from widows.110 Henry’s order in 1243 that Warwick castle be seized as security from Margery, countess of Warwick, was altogether exceptional, as were the pressures that made her in the end marry John de Plessis. Indeed, Henry plaintively observed, in issuing the order over Warwick castle, that ‘very many ladies of the kingdom have got themselves married obscurely to whomsoever they wished, without asking our permission, and spurning the security they ought to give’.111
Another area in which widows profited was that of entry into their inheritances, dowers and marriage portions. Magna Carta directed that this should be free, and there are few examples of such payments in Henry III’s fine rolls. When Alice, widow of Henry de Neville, offered 100 marks in 1227 to marry freely, her marriage portion and dower were given her without charge.112 Widows, when litigating under the writ of dower we have mentioned, likewise gained from the new section in the 1217 Charter stipulating that the dower should be a third of the land held by a husband during his (married) lifetime, unless a smaller portion had been agreed at the time of the wedding. This helped lay to rest the lingering idea that a dower was only due from the land the husband held on the day of the marriage. The widow was thus entitled to a dower in her husband’s acquisitions. The Charter also played a part in making it possible for widows to turn down any nominated dower and have instead the third as defined by Magna Carta.113
Magna Carta had acted against women in general by stating that no one was to be arrested or imprisoned on the accusation of a woman for the death of anyone other than her husband. This restriction was not, however, designed to limit the actual occasions on which women could bring appeals. Indeed, in so far as it lessened the pre-trial consequences for a man accused of killing someone other than a husband, it may have helped appeals in such cases to continue. Certainly, a sample of over 1,200 female appeals found in plea rolls between 1194 and 1294, with most of the evidence coming post-1215, shows that the legal rule restricting female appeals to the killing of husbands, rape and other bodily injury was not automatically enforced. Female appeals were also made in large numbers, constituting 36 per cent of the whole. Of the 126 rape accusations, only nineteen resulted in a conviction, but another thirty-five ended in a settlement. In general, the outcomes in female-prosecuted cases were not very different from those prosecuted by men. The women seem to have appeared personally. Women, therefore, mostly of peasant status, were very much public figures in the courts. Their presence, however, diminished in the course of the century as the number of appeals both by men and by women declined, leaving prosecution much more exclusively in the hands of local juries. Women, of course, did not sit on juries. But at least this change was the by-product of the general decline in the appeal rather than the result of any particular animus against women.114
When it came to legal actions being brought against his favourites, Henry was certainly prepared to deny justice, as we have said. But he did not sell it. His fine and pipe rolls are quite innocent of the offers of money for ‘justice’ that feature on those of King John. To that extent, Henry did obey chapter 40 of the 1215 Charter. Henry also, perhaps most important of all, obeyed chapter 39. Unlike his predecessors, he did not disseise men of property without judgement, by acts of will.115 By the same token, he did not demand large sums of money for the return of such properties and the recovery of his grace. There was just one period of his reign when Henry sought to emulate the actions of his father. This was between 1232 and 1234 when, having dismissed Hubert de Burgh, he came under the spell of Peter des Roches. The result was a civil war, des Roches’s dismissal and the solemn reversal of the disseisins that Henry committed. The basic principles of the Charter in this vital area had been vindicated.116 Henry never attempted such actions again.117 Hence the total contrast between the revolutions of 1215 and 1258. In 1215 the disseisins committed by John, as indeed by Richard and Henry II, were major issues. Many of John’s were reversed in the weeks after Magna Carta. In 1258 the office of justiciar was revived with a brief to give justice to everyone. But his chief business was to deal with local grievances. He heard only one major case in which a disseisin by the king was alleged, and on that he gave no judgement, in part because the claim (Roger de Mortimer’s to Lechlade) was far from clear-cut.118
Earls and barons also gained from the chapter on amercements, which, the Charter said, were to be assessed by their peers in accordance with the scale of the offence. This was designed to prevent amercements being imposed arbitrarily either by the exchequer or by will of the king. It has been said the chapter was a failure, but that is far from the case.119 Bracton, it is true, said that judgement by peers could mean either judgement by the barons of the exchequer or judgement before the king himself.120 There is good evidence, however, that in Henry’s reign the latter was the norm. There survives from the 1250s a record sent to the exchequer of amercements imposed on barons and others of equivalent status ‘before the king’ – ‘coram rege’. The amercements in question had arisen from convictions before the justices in eyre, so it looks as though it was routine for such cases to go to the court coram rege for the amercements to be imposed.121 Likewise, in 1241, it was stated that barons who had committed forest offences were amerced ‘before the lord king’. In the majority of cases we have no information as to what amercement coram rege involved, but it is very unlikely that it was simply by will of the king. Instead, the armercements were probably assessed by the court coram rege, which was presided over by professional judges and could be strengthened by the attendance of a baron’s peers if necessary. In routine cases, this may or may not have happened, but there are some very clear examples of a baron’s peers intervening and restraining the king in cases of great moment. In 1241 a court composed of twenty earls, barons, magnates and ministers dismissed out of hand Henry’s claim that he had suffered damage to the tune of 10,000 marks at the hands of Gilbert Marshal, earl of Pembroke (the former regent’s son). Again, in 1256, when Henry by his own will slapped a £100 amercement on the bishop of Bath, it was then reduced to 50 marks ‘by consideration of the peers of the bishop in the presence of the king’.122 There are also reasons for thinking that, in the same year, the astronomical amercement of 100,000 marks, which an emotional Henry in a wholly exceptional case wished to impose on Robert de Ros, was reduced by a court, including Ros’s peers, to 1,000 marks. (Ros was a son of the baron of 1215. His offence was mistreating the king’s young daughter, wife of Alexander III of Scotland, while the pair were in his care in Edinburgh castle.)
Apart from saying that amercements of earls and barons should be assessed by their peers, the Charter also stipulated that their size should match the offence. Under Henry III, it was not uncommon for lay and ecclesiastical barons to be amerced £100 for offences that came under the broad heading of contempt of court. These sums seem large, but they were probably considered commensurate with baronial status. The amounts were often left unpaid or pardoned.123 The scale of amercements imposed coram rege, found on the record mentioned above, were far more modest. In the twenty-three cases recorded, they ranged from 5 marks to £20. The amercement of earls and barons in 1258 was a dog that did not bark. Evidently it was no longer an issue. Magna Carta had done its work. That had another important consequence and one intended by the framers of the Charter. Because earls and barons were confident that amercements would be reasonable in size, they no longer felt the need to offer large sums of money for the king’s benevolence.124
Earls and barons, then, profited from the Charter. So did the king’s knightly tenants-in-chief, since the £5 relief for a knight’s fee was observed just as much as the £100 relief. The lack of protest on the issues suggests that lords themselves obeyed the Charter when it came to assessing the reliefs and treating the widows of their under-tenants. Knights and under-tenants also gained from continued expansion of the common law, which the Charter sought to facilitate. The stipulation that common pleas were to be held in a fixed place, which meant either the eyres or the bench at Westminster, was completely obeyed. Indeed, the expansion over the century of litigation at the bench was absolutely phenomenal.125 As for the common pleas in the localities, the watered-down chapter in the 1217 Charter by which judges were to travel once a year through the counties to hear the assizes, with knights of the county, was never implemented. Instead, groups of four local knights, and later individual judges who probably co-opted knights to sit with them, were commissioned, on demand, to hear individual assizes. These commissions usually cost half a mark or so, and were thus not as cheap as the 6d writs ‘of course’, which could begin actions at the general eyre. Essentially they were for speeding up the judicial process, at a cost that seemed reasonable and was not regarded as the selling of justice. The commissions were bought in increasing numbers. In the fine roll for the regnal year 1256–7, some 270 were purchased. Henry was making the common law available in a way that John had failed to do. Indeed, the fine roll of 1256–7, in total, had around 500 offers of money to buy writs that would initiate or further common-law legal actions. In the fine roll of 1207–8, there were seventy of them.126 The rolls, moreover, do not recordat all the purchase of the 6d writs ‘of course’, which were still perfectly available and were bought in large numbers when eyres were imminent. Magnates certainly got their way in respect of the writ ‘precipe’. Here the chapter (24 in the 1225 Charter) banning its issue if it undermined private courts was obeyed. Indeed the writ disappeared, but it was a victory of little significance. As The Mirror of Justices observed, there were many other writs by which ‘lords lose the cognizance of matters concerning their fees and the profits of their courts’.127
In the area of the forest, Henry had been less dismissive of the Forest Charter than his critics claimed. Although some of the deforestations implemented in 1225 were reversed, others stood, and the result was a substantial reduction in the area of the royal forest. In effect a working compromise was achieved with the counties, which was not altered, despite the grumbles, in 1258. Equally, given all the controversy over chapter 35 (in the 1225 Charter) on the running of the county and hundred courts, it is difficult to believe that the sheriffs did not tread more carefully. Conceivably more research into their financial returns may provide some detail here. Much more significant was the victory of local society when it came to the type of person who should be sheriff. The desire of the counties to have a local man in the office had been behind the stipulation in chapter 45 of the 1215 Charter that sheriffs and other officials should know and wish to obey ‘the law of the kingdom’ or, as the Articles of the Barons put it, ‘the law of the land’. The chapter had been omitted after 1215, as we have seen. The reforms of 1258–9, insisting that the sheriff should be a local knight, had not outlasted the king’s recovery of power. But then in 1278, Edward I, in an act of conciliation, removed all the sheriffs and replaced them with knights from their own counties. It was county knights who were the usual sheriffs thereafter.128 With the introduction in the next century of the justice of the peace, local society had won its struggle to provide local government with its personnel. The 1215 Charter, in its chapter 45, and in the role it assigned to elected knights in each county as judges and as reformers of abuse, had pointed the way to that victory.
The Londoners knew Magna Carta well, and made copies of both John’s and Henry’s Charter. They may have gained little from its confirmation of their liberties, which were suspended many times in the thirteenth century.129 At least, however, the chapter removing fish weirs from the rivers had some effect, in part through their own efforts.130
What of the unfree? Was the change in 1225 that saw the king granting the Charter to ‘all men’, as opposed to ‘all free men’, just Langtonian rhetoric? Perhaps not quite. Death and mutilation seem to have been abolished as penalties for forest offences, so peasants gained there. If exactions at the view of frankpledge were modified, then they gained there too. They may also have profited from the chapter (14 in 1225) on amercements, which said that for villeins, as for everyone else, these should be assessed by men of the neighbourhood. On the visitations of the king’s judges, or eyres, amercements were generally assessed by knights and leading men of the hundreds, so by good men of the neighbourhood in accordance with the Charter.131 This was probably the usual procedure before 1215, but the Charter at least made it harder to breach. The villeins were, of course, under the terms of the Charter, only protected from excessive amercements imposed by the king, not by their lords (and the king’s villeins, from 1217, not at all).132But both the principle and practice of the chapter spilled over into manorial courts. It was in the spirit of the Charter that Walter of Henley’s book on the running of manors, written in the second half of the thirteenth century, urged lords to see that those ‘falling into danger of their courts’ were amerced by their peers. This was not just a pious aspiration. In 1229, on the manors of the bishopric of Durham, amercements were assessed by local men, according to the scale of the offence (‘delictum’), and saving a free man his means of livelihood (‘contenementum’), a merchant his merchandise, and a rustic his wainage, which was almost a direct quote from Magna Carta. Perhaps a growth in such procedures helps explain the evidence that amercements in manorial courts declined in size in the later thirteenth century.133
There was also an idea that villeins might have some redress against their lords if Magna Carta’s chapter on amercements was breached. Bracton, in a passage not found in Glanvill or other sources, opined that villeins had an action against their lords ‘if the wrong is an insufferable one, as where their lords so strip them that their wainage cannot be saved them’.134 In the 1260s the writ that enabled legal actions to be taken against amercements in private courts in breach of Magna Carta stated that villeins were to be amerced saving their ‘wainage’. The implication was that the action was available to them, although under the strict terms of the Charter it should not have been.135 It was this very chapter in Magna Carta that the peasants of Bocking in Essex appealed to around 1300. Whereas previously their amercements had been assessed by their peers, and in accordance with the offence, now the lord’s bailiff was amercing them at will, two or three times as much, ‘against the Great Charter which holy church ought to uphold’.136
How far the unfree were able to take concrete advantage of these opportunities is another matter. There appear to be no examples of villeins bringing actions against their lords on the issue of amercements. The fact that the peasants of Bocking appealed to the church to uphold the Charter speaks volumes. Nor did Bracton’s view on the issue go unchallenged. A later interpolation into the text said that ‘whenever the lord pleases he can take away from his villein his wainage and all his goods’.137 In the Charter, it was only the free tenements that were protected from demands for more than due service. The author of The Mirror of Justices observed that if this chapter (10 in 1225) had covered land held in villeinage (as he thought it should), then there would ‘hardly be a man in the realm who has tenants and who does not trespass against it by himself or his ministers’.138
The benefits of Magna Carta, therefore, were far from spread evenly across society, yet all sections of society (apart from the Jews) had some stake in it. Everyone, moreover, was affected in some way by the momentous change in kingship that the Charter’s letter and spirit helped bring about. The kind of arbitrary, indeed tyrannical rule seen under King John had disappeared. In the fine roll of 1207–8 there were twelve offers of money, totalling some £5,580, to escape the king’s rancour and recover his benevolence. In Henry III’s fine roll for 1256–7, there is only one (of £500), and it was quite untypical. In all the rolls of Henry’s personal rule between 1236 and 1258 there are only four more such fines with a total value of £1,673. There was equally no equivalent in the rolls between 1236 and 1258 of the fines so common under John to recover land seized into the king’s hands. There are thirteen of these in the fine roll of 1207–8 alone. This was all part of a gigantic decline in royal revenue generally from fines offering money to the king for concessions and favours. In 1207–8 John was offered some £22,000. In 1256–7 the amount offered Henry III was around £4,000. The average promised John in the rolls of 1199–1200, 1204–5, 1207–8 and 1213–4 was £26,500. Under Henry, between 1234 and 1242, it was £4,000.139 Although these figures are subject to all kinds of qualifications and distortions (in 1241–2 there was one fine for a wardship of £6,666), taken as a whole they illustrate, in graphic fashion, the collapse of the king’s ability to extract money by arbitrary means. Of course, as Henry was well aware, there remained ways, within the law of the land, in which he could seize property in order to enforce the payment of debts, but, when it came to his leading magnates, he rarely resorted to them. He was much more likely to set reasonable terms for repayment. Henry’s indulgent personality was a factor in this extraordinary contrast with the reign of his father, but there was more to it than that. Fine income did not recover under the hard-driving Edward I. In the roll of 1304–5 the total offered him was £1,121 with thirty-eight ‘reasonable reliefs’, which were presumably levied according to the terms of Magna Carta. Kingship seemed totally different from what it had been one hundred years before.140 It seemed different in another way. During his personal rule, Henry took not a single hostage.
There was one other consequence of the Charter that was felt by all sections of society. This was the emergence of the tax-based parliamentary state. Because the letter and spirit of the Charter, coming on top of the decline in easy money from royal lands, stopped up so many sources of royal income, the post-1215 kings desperately needed general taxation to fill the gap. Yet here the Charter kicked in again, because it laid down that taxation could only be levied with the common consent of the kingdom, which came to mean the consent of parliament. True, the chapter on consent was left out of the post-1215 Charters, but the magnates still believed it was valid. The engrossments of the 1215 Charter, and the numerous copies of it that circulated, helped to confirm this belief. Henry III found it impossible to raise taxation without consent. The episode in 1220, when the stewards of the Yorkshire magnates claimed that their lords had not been consulted over a tax, made the point. The lack of consultation was probably true, although more by the incompetence of the minority government than by design.141 Henry, in line with the 1215 Charter, later sought consent for scutages, and even for the customary aids that the Charter permitted.142 The only time that Edward I tried to levy a tax without consent (in 1297) he faced a near revolt. He was forced to agree that he would levy taxation only ‘with the common assent of all the kingdom’.143 In general, Edward gained consent by timely concessions and reform of the realm. He could let the counties have their knightly sheriffs, and accept a minimal income from fines, because this made the granting of taxation by parliament all the more likely. The concession Edward made in 1290, in order to secure the most lucrative tax of the reign, was the expulsion of the Jews from England. Indirectly, therefore, in reinforcing the need for consent, and the consequent need for concessions, Magna Carta contributed to the fate of the one section of society that had gained nothing from its terms.144
The parliament of 1290 was attended by knights representing the counties and burgesses the towns. Montfort’s parliament of 1265 had set a pattern increasingly followed thereafter. By the end of Edward’s reign in 1307 the knights and burgesses were close to being a fixture. Magna Carta in 1215 had envisaged consent to taxation being given by an assembly merely of tenants-in-cheif. Here it looked to the past but gave a pointer to the future since many of the lesser tenants-in-chief summoned generally by the sheriffs would have been of knightly status. The Charter also protected the privileges of London and other towns, and recognized the role of the knights in dispensing justice and reforming abuses in the localities. In 1215 itself Magna Carta hardly seemed to have a future. It was supposed to last for ever, ‘in perpetuity’, but within little more than a month of the meeting at Runnymede, John had decided to abandon it. His baronial opponents effectively did the same when, later in the year, they offered the throne to Prince Louis, eldest son of the king of France.
Magna Carta, however, survived. It did so because it asserted one fundamental and treasured principle, that of the rule of law. It also, in its individual chapters, responded to real grievances and offered, at least in some cases, what seemed effective solutions. In the thirteenth century the Charter was hardly of equal benefit to all sections of society. Yet society changed while Magna Carta remained, so that in the end the principle of the rule of law shielded everybody. Already by 1300 those from top to bottom of English society saw the Charter as a protection against arbitrary rule. Magna Carta was set on the long journey that would take it around the world. It would indeed last ‘in perpetuity’.