Post-classical history

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4

Magna Carta and Society: Women, Peasants, Jews, the Towns and the Church

At the start of Magna Carta, John greeted his clerical and lay magnates, his ministers and ‘his faithful men’ – ‘Fidelibus Suis’ – and informed them of what he was doing. He was thereby announcing the Charter to all the men of the kingdom, since each adult male was expected to take an oath of fealty to the king, thus becoming his ‘faithful man’ – ‘fidelis’. Likewise at the end of the Charter, in the security clause, it was ‘everyone’ – ‘omnes’ – or all men who were to swear the oath to support the twenty-five barons in their work of maintaining the Charter. All adult males were thus potentially part of the ‘commune of all the land’ (‘commune’ meaning sworn association), which the oath created.1

Contemporaries could regard the Charter in the same way. The annals of Dunstable described it as being about ‘the liberties of the kingdom of England’. Later it was often called a charter of ‘common liberties’.2 This meant it was ‘common’ in the geographical sense in that it applied to all the country (whereas the later Forest Charter was only relevant to forest areas), but the Charter also carried at least a tinge of being common in the sense of everyone sharing in its benefits. Nor on the face of it was that untrue. Some of the chapters seemed to have a universal reach. ‘To no one will we sell, to no one will we deny or delay, right or justice’, ran chapter 40.

THE ECONOMIC FRAMEWORK

The people of Magna Carta’s England lived in an age of economic expansion.3 All historians would agree that the population of England rose very considerably in the hundred or so years either side of the Charter, before it was slashed by the Black Death. There would be much less agreement over precise figures, especially for the 1200s, which are situated in a statistical vacuum between the data that come from Domesday Book in 1086 and the ‘Hundred Roll’ survey of 1279. A high estimate for the early thirteenth century would be 4.5 million people, a low one 3 million. Perhaps around 3.5 million might be the safest bet. The rising population was accompanied by urban and commercial expansion. Many new towns were founded, and old ones grew in size. The town population maywell have increased faster than that in the countryside, reaching by 1300 at least 10 per cent of the whole.4 There was a gigantic increase in the money supply, and a new network of markets and fairs was introduced.5

Just where the reign of John fits into this picture of general expansion is, however, far from clear. Indeed, it could be argued that the economy in his time suffered a series of shocks, some being the results of his policies, some not. There were certainly at the start of John’s reign some years of very rapid inflation, in which prices tripled or more than tripled. Although they then fell back, prices never returned to their old levels. The most important price of all, that of wheat, fluctuated, after 1207, at something more than twice its level before 1200.6 The causes of the inflation have been much debated, but the most immediate factor was probably a series of bad harvests that pushed up the price of corn. Ralph of Coggeshall specifically blamed the high prices of 1205, which he contrasted with those in the reign of Henry II, on the freezing weather that had destroyed the crops.7 Chroniclers also commented on the bad weather of 1201 and the famine of 1203.8 Another factor, purely monetary, was arguably the release of large numbers of coins because hoarders had decided to spend their money, having lost confidence in a much clipped currency and being fearful of losing out in a recoinage, which indeed was introduced in 1205.9 Over the longer term, the failure of prices to return to their old levels was probably due to the flow of silver into the country from Flanders in order to pay for English wool. This inflation took place, moreover, despite the deflationary pressures resulting from the money sent overseas for the defence and then recovery of the Angevin empire. A large amount of money was also taken out of circulation as John, after 1204, built up the treasure needed to finance his continental schemes.10 Trading patterns, meanwhile, must have been disrupted both by the loss of Normandy and Anjou in 1203–4, and the conflict with France that continued thereafter. This indeed is reflected in Magna Carta’s chapter 41 with its concern, if war broke out, for the treatment of foreign merchants in England and English merchants abroad, the implication being that hitherto they had been arrested and their goods seized.

John’s reign in this perspective might seem then to combine bad harvests, inflation, shortage of coin, disruption of trade and a general decline in productivity, all making his exactions the more grievous. Magna Carta becomes the result of an economic crisis. P. D. A. Harvey indeed remarked that ‘no landmark in English constitutional history was more clearly brought about by economic change than Magna Carta’.11 Yet it is impossible to be sure of this interpretation. The harvests in 1213 and 1214 were actually good, and prices tumbled from the high levels of some earlier years.12 The year 1215 was thus very different from 1258, when a great political revolution, stripping John’s son, Henry III, of power, took place at a time of dearth and starvation, following a harvest failure. The sums John was able to raise from barons even late in his reign hardly suggest that they were strapped for cash. With surplus corn to sell on the rising market for agricultural produce, lords might anyway be shielded from the inflation. Many towns in John’s reign were prosperous enough to offer him money for exemption from tolls and the right to answer directly for their revenues at the exchequer.

It is anyway impossible to generalize across society, since economic developments affected different groups in different ways. The economy might expand, for example, without bringing any benefit to the peasants who formed the bulk of the population. The Charter itself reflected deep divisions in England society, divisions between men and women, free and unfree, lords and towns, lords and tenants, Christians and Jews, and church and state. It was, moreover, far from being a mere passive reflection of the status quo. On the contrary, the Charter was, in places, an aggressive document, which sections of society sought to use against each other. It is usual, when looking at that society, to focus on the earls, barons and knights. This is understandable, given that it was this elite which forced the Charter on the king. John himself and the contemporary writers often described the rebels simply as ‘the barons’. But such concentration also conceals what the Charter tells us, sometimes by its silence, about everyone else. Earls and barons formed a tiny elite one hundred or so strong. Of knights there were several thousand. The population was several million. This chapter, therefore, concentrates on those whom the Charter more or less left out, namely women, peasants, Jews and towns, before concluding with the church. Earls, barons and knights appear in the chapter that follows.

WOMEN

If the population in John’s reign was 3.5 million, then there were around 1.75 million females, of whom perhaps half would have been under fifteen, so 875,000 adult women, and around the same number of adult males.13 No women are mentioned by name in Magna Carta. The queen appears in the security clause but is left anonymous. Also anonymous are the sisters of the king of Scots, Alexander II, who feature in chapter 59, although they are named in John’s letter announcing the 1209 Treaty of Norham; it was under this treaty that they came into his hands.14 By contrast, the Charter names John and thirty-eight other men. The words ‘man’ and ‘men’ – ‘homo’ and ‘homines’ – appear nineteen times in the Charter. ‘Woman’ – ‘femina’ – appears once, and in a chapter (54) that reduces the power of women over men. There are two references to the ‘widow’ – ‘vidua’ – and two to the widowed ‘wife’ – ‘uxor’ (chapters 7, 8, 11 and 26). To be sure, the word ‘homo’ could certainly be used at this time to mean simply a human being. Women, therefore, were protected by many of Magna Carta’s chapters. Indeed, it may be that the murder of Matilda de Briouze, alongside her eldest son, was one strand behind chapter 39’s insistence that no free man be ‘destroyed’ save by the lawful judgement of his peers or by the law of the land. Yet chapter 39, if it embraced women, also ignored them. When it said that there should be no outlawry save by judgement or by law, it was dealing exclusively with men. A woman was not outlawed, she was ‘waived’, which meant she was abandoned as a ‘waif’. This had the same consequences (a waived woman like an outlawed man could be killed on sight) but also reflected a fundamental difference between men and women. Whereas women did have rights over property (although less than those of men), they had hardly any public functions. Thus whereas all adult males, as we have seen, swore fealty to the king, women in general did not. There was no need for them to do so since, in theory, every woman was under the protection of, and could be answered for by, a man, be it father, husband or lord. Since, therefore, there was no oath of fealty making women generally ‘in law’, they could not be ‘outlawed’, and hence they were ‘waived’. The only women who took an oath of fealty to the king were those who did so as part of an act of homage performed to the king (an act discussed more fully in the next chapter). The number of women in this category was small, since it was confined to heiresses who held their land directly from the king and did homage when they entered their inheritances – did homage, that is, if they were unmarried (usually being widows). If they were married, their husbands perfomed homage for their lands. Only when the husband died was the heiress called on to do so. Since, therefore, the great majority of women did not swear fealty to the king, they were technically not even among the king’s ‘fideles’ to whom the Charter was addressed.

This imbalance corresponded to the position of women in male-crafted law, custom and wider thought.15 ‘Women differ from men in many respects, for their position is inferior to that of men’, opined the great book on the laws of England known as Bracton, much of which was written in the couple of decades after John’s death.16 The subordination of women was partly justified biblically, going back to Eve’s role as Adam’s serpentine temptress. Other female failings (in the view of the mid-thirteenth-century Oxford friar John of Wales) were garrulity, sloth and ostentation in dress and makeup.17 Walter Map, writing in the 1180s, equated women with one thing, namely ‘malicia’ – ‘malice’.18 How necessary then the injunction in Ephesians 5:22–3: ‘Wives should be subject to their husbands as to the Lord, since the husband is the head of the wife as Christ is the head of the Church …’! Women were also frail. When, in 1249, Ughtred Smith, of Buteland in Northumberland, pulled an arrow out of his head before going home, it was ‘so that my wife may not see it, for she would perhaps grieve over much’.19 Strong man, weak woman.

Women then had a very limited public role. They did not sit on juries, and only very exceptionally held any kind of office. If, under chapter 39 of the Charter, free women were entitled to judgement by their peers, that judgement would have been given exclusively by men. When Magna Carta was redrafted in 1216, it was made clear that a woman could not remain in the house of her late husband if it was a castle. The 1216 Charter was issued in the middle of a civil war, but the clause remained in place in the later versions issued in time of peace. Evidently castles were not for single women. The Charter, however, shows that women did have rights over property. Chapter 7 laid down that, on the death of their husbands, widows should have free entry into their inheritances, marriage portions and dowers. The Charter was thinking pre-eminently here of those at the top of the social scale, namely the daughters and widows of the king’s baronial and knightly tenants-in-chief; but its stipulations also applied downwards, that is, to the daughters and widows of the knights who held from the tenants-in-chief themselves.20 This was why, if a widow wanted to remarry, she needed, under chapter 8, to get the consent of whomever she held her land from, whether it was the king or a lord. Under King John, widows had certainly not entered their dowers, marriage portions and inheritances free of charge; but that they were entitled to them, under existing law and custom, was not disputed. The Charter was concerned to secure free entry into those properties, not establish the principle of entry itself. When it came to inheritances, a woman’s rights were inferior to a man’s. She only inherited her parents’ property in default of a brother. And whereas, by the operation of primogeniture, an eldest brother would inherit everything, with women there was no primogeniture and sisters divided the inheritance. This is why chapter 2 of the Charter spoke of the ‘heir or heirs’ of earls, barons and knights, the heirs here being women. It was also why the chapter implied that baronies and knights’ fees might not be ‘whole’, which would be the result of their division between heiresses. When they were not heiresses, women might still have land in the form of a marriage portion given by their natal families. And, on the death of their husbands, they were entitled to a dower, carved out of his estates. The 1217 version of the Charter defined this as a third of the estates held by the husband in his lifetime, unless a smaller amount had been agreed.21

A woman, therefore, might have property, but her chances of actually controlling it were limited. For much of the time it was controlled by men. In the law as stated by Glanvill, a female heiress could not enter her inheritance unless she was married. If unmarried at the time of her father’s death, then, even when of full age, she remained in the wardship of her lord, until he married her off.22 A male heir, by contrast, escaped from wardship and gained his inheritance as soon as he attained his majority. The 1216 Charter gave the age for that as twenty-one. In practice, most heiresses were married off either by their fathers or, if they came into wardship, by their lords, long before they reached that age. In the case of daughters of tenants-in-chief, the lord was the king. When Magna Carta laid down that ‘heirs’ (of both sexes) were to be married ‘without disparagement’, it was designed to stop lords, and above all the king, from marrying off heiresses in their wardship to those of lower social rank. In marriage a husband had control of his wife’s inheritance and could alienate it as he wished. The Charter acknowledged as much. The inheritance it allowed a widow to recover was the inheritance as held at the time of her husband’s death.

It was only after a husband’s death that this picture changed. As widows, women could themselves control their inheritances, marriage portions and dowers. The Charter, in saying that these properties should be entered without difficulty and without charge, was designed to make it all the easier for widows to obtain them. When it came to widows obtaining their dowers, the Charter was also putting them in a stronger position than some translations have indicated. In Holt’s, for example, it is said that the widow ‘may stay in her husband’s house for forty days after his death, within which period her dower shall be assigned to her’. The ‘may stay’ here could be taken to imply that staying is just a possibility open to the widow. But there is very little in the Latin to justify the ‘may’. Rather, the present subjunctive is jussive, as it is in the other verbs in the chapter, and is much better translated as ‘is to stay’. In other words, the widow is absolutely not going to be disturbed, until the forty days are up, by king, lord, family or whomever.23 The Charter also offered two further protections for widows. In chapter 11, if a husband died owing money to the Jews, or anyone else, the widow was both to get her dower and pay nothing of the debt. Under chapter 26, although this only applied to widows of tenants-in-chief, widows were guaranteed a reasonable share of their late husband’s chattels as against the demands of the executors of his will.

If widows remarried, however, their property became again subject to their husband’s control, but at least the Charter, in chapter 8, prevented them from being forced into a second union. As unmarried widows, women could also litigate, and indeed many did so both over their dowers and over property alienated by their husbands from their inheritances. Unmarried widows were thus very much public figures in the king’s courts. Indeed, they had all the more opportunity in this area under the demands of 1215. The protection offered widows, when it came to the free entry into their dowers, marriage portions and inheritances, was not merely for the future. There was also the intention of redressing the grievances of the past. Under chapter 37 of the Articles of the Barons, all fines made for dowers, marriage portions and inheritances, unjustly and against the law of the land, were to be remitted.24 If there was any dispute (as was quite likely), it was to be judged by the twenty-five barons of the security clause and Archbishop Langton. There were numerous widows with grievances over just such fines. If they secured redress by authority of the twenty-five barons, they were exploiting the most revolutionary feature of the Charter.

It is natural to think that the chapters in favour of widows in the Charter owed a good deal to the demands of their male relatives, and there must be truth in that. No son wanted to see his mother, with all her lands, taken off by some second husband. It was far better that she remained single, in which case the son himself might hope to profit from her lands. Women, however, were far from being mere pawns in the hands of men. Before 1215 they had been active in securing, in return for money, precisely the kinds of concessions that they were to gain in Magna Carta. Government records show no fewer than 149 widows in John’s reign offering money to the king for the right to stay single or marry whom they wished, offers that were sometimes also for entry into their lands and the wardship of their children.25 Holt has called such proffers ‘one of the first great stages in the emancipation of women’.26 It seems inconceivable that all the women in question were being manipulated by men. John, of course, could not care less one way or the other. All he wanted was his money, and the offers show that women had plenty of it. In 1214 Margaret, widow of Robert fitzRoger, promised the queenly sum of £1,000 for the right to stay single and other concessions. Her offer was clearly at her intitiative, for it was actually aimed in part at her son: she was to have her dower, even if he did not wish to give it to her. This pointed to a common cause of friction. Since a widow’s dower had to be carved out of her late husband’s lands, it diminished, until her death, the amount to be inherited by the heir, whether her son or anyone else. The offer also shows how determined Margaret was to litigate in order to right perceived injustices. Thus John agreed to give her justice in his court over her claims to her inheritance, part of it alienated, she believed, by her two former husbands.27 Women might also hope to benefit from the famous chapters about justice in the Charter. Chapter 39 might not refer to ‘waiving’, but free women could still be protected from unjust disseise under its terms. Indeed, Isabella, countess of Arundel, later upbraided Henry III for the way, in his dealings with her, he had breached this very clause.28 This was also a society which accepted that noblewomen could hold public office at least in the few cases where they had inherited a title to it. John himself accepted the claim of Nicola de Hay, as her father’s heir, to be castellan of Lincoln, and she was determined to do the job in person. The History of the Marshal shows her in command there during the great siege in 1217 that helped determine the outcome of the civil war. By this time she had wider authority, for John, on the day of his death, made her joint sheriff of Lincolnshire.29

At the lowest level of society, the Charter had nothing to say about the property of the unfree, male or female, since, as we will see, that was entirely a matter for the lord. Women as a whole, however, did feature in the Charter, which brings us to the one chapter, chapter 54, where the word ‘woman’ – ‘femina’ – appears. This was a chapter introduced, for reasons we will see, at Runnymede itself.30 The background to the chapter was the way in which women, whatever their status, were permitted in courts of law to appeal, that is accuse, individuals of crime. Whereas a man could bring appeals for a whole range of crimes, a woman, in the legal theory as set out in Glanvill, was limited to accusations of two kinds.31 The first was for the killing of her husband, where she had personally witnessed the deed – with the husband, in the conventional phraseology, dying in her arms. The second was for rape and injury to her body. One factor underlying these restrictions, quite apart from the usual prejudices, was the view that women had an unfair ‘procedural advantage’. They could not be challenged to back up their accusations in a trial by battle, and so, with less to lose, might bring their charges irresponsibly, either on their own account or because they were being manipulated by men.32Chapter 54 did not deal with these restrictions directly, but limited the power of women in a related area. Thus it directed that no one was to be arrested or imprisoned on the appeal of a woman for the death of anyone other than her husband. In other words, if a woman did make an appeal for the killing of someone other than her husband, the accused was not to be imprisoned prior to trial, as would have been the case if the accuser was a man. Instead, as was probably the practice for crimes other than homicide, whatever the gender of the accuser, he could give sureties for coming to court and answering the charge. Women, as accusers, therefore, were being put on a lower plane than men.

Chapter 54 could, however, have been worse. It clearly implied that women were making appeals for homicides other than those of their husbands. It limited the pre-trial consequences of such accusations but did nothing to stop them, or other appeals, by enforcing Glanvill’s rule. Indeed, plea roll evidence, both before and after 1215, shows that the restrictions on women’s appeals were far from routinely enforced by the king’s judges. What is equally clear is that appeals brought by women formed a large part of the business of judges when they toured the counties. There were over seventy such appeals brought before the judges in Lincolnshire in 1202. The great majority of the appeals, moreover, seem to have come from women of peasant background. Here there was no distinction between the free and the unfree. That was certainly not the case elsewhere in the Charter.33

THE PEASANTRY: UNFREE AND FREE

In the 1200s, on a very rough estimate, about 90 per cent of England’s population were peasants, so approaching some 3.15 million souls – men, women and children – if the total population was around 3.5 million. Within this group the balance between peasants who were free and unfree varied both as between neighbouring manors and as between different parts of the country, and there is simply not the evidence to be precise about it. A classic study by the Russian historian E. A. Kosminsky (who survived the purges by putting in dutiful references to the works of J. Stalin) showed that in six Midlands counties for which there was evidence in the 1279 Hundred Roll survey, the ratio between the unfree and free peasantry was 62 per cent to 38 per cent in terms of land held, and 58 per cent to 42 per cent in terms of number of households. In other parts of the country, however, notably in East Anglia and the north, there was certainly a much higher proportion, indeed a preponderance of free peasants.34

The Latin texts that mostly describe their condition had a whole variety of words for peasant, including ‘villanus’, ‘servus’, ‘rusticus’, ‘nativus’, ‘custumarius’ and ‘bondus’. Although some of these words could be used in a looser sense, they usually carried the implication that the individual was unfree. A sokeman, on the other hand, was a free or freer peasant. Fortunately, there is no need to spend time agonizing over definitions. We know from numerous surveys of manors, not least the 1279 Hundred Roll survey, the type of person whom contemporaries described as peasants, using one of the above terms.

In such surveys lists of unfree peasants (most often described as villeins) frequently show them holding either a whole or a half virgate of land from their lord. A virgate varied in size; it could be thirty acres, twenty-four acres, or less. Land, of course, varied in productivity. Half a virgate in one place might be worth as much or more than a virgate somewhere else, but probably most peasants with half a virgate and upwards could support their families largely from their land. Beneath the villeins, another group often listed (still clearly unfree) were the ‘cottarii’ – ‘cottagers’. These were smallholders with at best a few acres of land (the amount is rarely stated). In return for their land, both these groups of peasants owed the lord a combination of money rents and agriculturallabour services; for villein virgaters, the latter might involve supplying two men, who would work for the lord a couple of days a week for most of the year, and every day in harvest time.

The peasants described as sokemen can be found in surveys holding as few as five acres of land and, more typically, as much as half a virgate or a virgate. They answered for money rents, and if they owed labour services, these were usually light compared to those of villeins. Manorial surveys also often have lists of ‘free tenants’. These were men who answered exclusively for money rents. Some had substantial holdings that placed them above the general run of the peasantry, but many others had land of equivalent size to that held by villeins and cottars. Apart from being legally free, and answering exclusively for rents, they must often have been in a very similar economic condition.

The framework governing the life of the peasant, especially the unfree peasant, was very often that of the manor, although these came in many forms, shapes and sizes. Sometimes they were coterminous with another unit of local society, the ‘villa’, mentioned in chapter 23 of the Charter, which is conventionally translated ‘vill’ but in many cases equated to a village. Many villages, on the other hand, had more than one manor. In the thirteenth century, lords retained most of their manors in hand – ‘in demesne’ – rather thanrenting them out. Chapter 25 of the Charter mentioned the king’s own ‘demesne manors’, while a new chapter (26) in the Charter of 1217 safeguarded the demesne carts of lords from seizure, which meant the carts that they had on their demesne manors. With an in-hand manor, lords cultivated for their own profit a large part of the land within what were usually two or three big fields around the village centre. This area was also called the ‘demesne’, being the in-hand part of a demesne manor. The labour services owed by the unfree could be used to work the demesne, although paid labour was often employed as well. In Kosminsky’s analysis of the 1279 survey, 32 per cent of the land was demesne, as against 40 per cent villein land and 24 per cent peasant freeholdings.35 This just shows the inequalities that existed, for of course the number of lords ran into thousands, and the number of peasants (who anyway had to work for the lords) into millions. Even a large peasant holding of thirty acres was small compared to the 250 acres that might typically be held in demesne in a medium-sized manor, and great lords had many manors.

By 1215 the king’s judges had developed a very clear test to decide who was unfree, and used the words ‘villein’ and ‘servus’ – ‘serf’ – in a technical legal sense to describe someone in that condition. The test had several components, but the most vital was whether the peasant (or his ancestor) had performed agricultural labour services of any significance to the lord in return for his land. The king’s judges were very clear about the consequences of unfreedom. Villeins could not leave the manor without the lord’s consent. They had to pay the tax called ‘merchet’ to marry off their daughters. Villeins could be sold with the land ‘like oxen and cows’. They had no recourse at all to the king’s courts in any matter concerning their land and services. These were entirely matters for the lord to determine. As the law book Bracton put it, a villein ‘cannot know in the evening the service to be rendered in the morning. [He] is bound to do whatever he is bid.’36

The economic position of the peasantry in the thirteenth century has been much debated in the so-called ‘standard of living controversy’.37 According to one view, the rising population was outrunning the ability of the land to support it, and creating a proliferation of peasant smallholders living on the edge of subsistence. A key calculation here is that, in average conditions, a peasant family needed at least ten arable acres to subsist simply from its land. Kosminsky’s figures chillingly suggest that over 40 per cent of the peasantry were smallholders who fell below that level. Indeed, it has been estimated that around 1300 this was true of 60 per cent of peasant households.38 To survive at all, smallholders had to find other sources of income, most notably from wage labour. That might provide enough to get by in normal times, but not when prices went up with bad harvests. Then there might be widespread starvation. Some historians, however, have sought to qualify this bleak picture, which in any case relates more to the later thirteenth century than it does to the reign of John. In some parts of the country, peasants could exploit resources of forest and meadow, outside the arable fields. The ten-acre calculation is itself based on figures from the productivity of lordly demesnes, whereas productivity on peasant land, which was literally a matter of life and death, might have been much higher. Where peasants lacked access to ploughs, they could, with plenty of family labour, prepare their lands for sowing all the more fruitfully by spade.39 Yet, whatever the truth in this debate, no one would dispute that the English peasantry were poor and disadvantaged. They needed all the protection in Magna Carta they could get.

There was no reason, in theory, why the free peasantry should not benefit directly from the Charter. As free men, under chapter 20, they were protected from excessive amercements (fines in modern parlance), whether imposed by the king or their lords; in chapter 39, they were protected from unjust dispossession. They might also gain from chapters 17 to 19, which aimed to expedite civil litigation in the king’s courts. This was more than mere form, for the plea rolls recording such business show many of apparently peasant status litigating over small amounts of land. The Charter turned a much more negative face to the unfree, indeed it was deliberately designed to do so. The unfree were among the king’s fideles to whom the Charter was announced, but the concessions were not actually given to them. John, at the start, made his grant to ‘all the free men of our kingdom’, so not to the unfree at all. The bishops, in their letters testifying to the Charter’s authorized text, described it as being granted to ‘the earls, barons and free men of England’. True, in chapter 63, it was ‘the men in our kingdom’ who were to enjoy the concessions, but it went without saying that these men were free. The point was clear in chapter 60’s stipulation that ‘all the men of our kingdom’ should observe the concessions to their own men. The unfree had no men.

The Charter did nothing at all to challenge the basic restrictions of unfreedom. On the contrary, it reinforced them, making it very clear that the unfree were indeed subject to the will of their lords. The only chapter in which villeins appeared by name, and where they gained protection, was not what it seemed. This was chapter 20 on amercements. It laid down that amercements imposed on free men and merchants should fit the crime. They should not be so large as to affect a free man’s ‘contenementum’, which meant his means of livelihood, and a merchant’s merchandise, which came to the same thing. The chapter then continued:

and a villein is to be amerced in the same way saving his wainage, if they fall into our mercy. And none of the aforesaid amercements are to be imposed, save by the oath of upright men of the neighbourhood.

‘Wainage’ here means the things necessary for the villein to be able to make a living, in other words his crops under cultivation, seed corn, ploughs and plough teams.40 It was thus the equivalent of ‘contenementum’ and merchandise. On the face it, therefore, villeins here are being treated like everyone else. Indeed, the plural in the passage quoted above, ‘if they fall into our mercy’, might seem to imply that the ‘if’ qualification applies to the free men and merchants in the early part of the chapter just as much as to villeins at the end. In other words, all three groups are only protected from amercements imposed by the king.41 Indeed, the chapter has sometimes been translated to make this all the clearer with ‘If they fall into our mercy’ being placed at its start to govern all that follows. But it is plain that the qualification ‘if they fall into our mercy’ was meant to apply only to the villein. Had the Charter meant to lump free men, merchants and villeins together here, it would have made that clear, as it did in the immediately following passage, which said that ‘none of the aforesaid amercements’ were to be imposed save by the oath of upright men of the neighbourhood. The confusion that could arise from the ‘if they fall into our mercy’ being plural rather than singular was eliminated in the Charter of 1216, and its successors. There the ‘they’ was changed to ‘he’, so the passage now read ‘if he falls into our mercy’, thus clearly referring only to the villein. In the engrossments of the later Charters, moreover, the section ‘and a villein … if he falls into our mercy’ is often punctuated as a separate and discrete clause. This change was anticipated in the very early French translation of the 1215 Charter, where again ‘if they fall’ appears as ‘if he falls’.42 Either the translator had sensed the correct meaning or he was working from an engrossment where the singular in fact occurred. The point of all this is that the lords wished to protect their villeins from amercements imposed by the king, while remaining free to impose whatever amercements they liked themselves.

There is one other striking feature about this clause on villeins. The qualification ‘if he falls into our mercy’ (as it should have read) does not appear in the equivalent chapter in the Articles of the Barons (9). It was thus inserted into the Charter at Runnymede itself. Evidently lords had realized that, left as it was, the chapter gave blanket protection to villeins. That would not do, hence the change. The doing down of villeins in the chapter and the separation of them from everyone else was thus highly deliberate. Even at Runnymede, in the midst of tense negotiations with the king, lords were thinking of how to entrench their authority over the unfree peasantry. That is a measure of how important the issue seemed to be.

Just how aware the drafters of the Charter were of chapter 20’s implications for the peasantry is shown in a change made to it in the new version of the Charter which was issued in 1217. The 1215 Charter, probably inadvertently, had left the king in a worse position than his lords. They could impose whatever amercements they liked on their own villeins. The king, on the other hand, could not, for there was nothing to indicate that his own villeins were not protected by the chapter if they fell into his mercy. In 1217 this was put right through the introduction of another qualification to the chapter.43 The villeins who were to be protected from excessive amercements imposed by the king were to be ‘other than our own’. In other words, the king now gained the same let-out as lords and could do what he liked, as far as the Charter was concerned, when amercing his own villeins. In the 1215 Charter itself, the king had already gone some way to asserting his authority over his own peasants. Chapter 25 had exempted the king’s demesne manors from the limitations on the money that could be taken from the counties. The king was thus free to impose heavier burdens on his manors, which meant of course heavier burdens on his peasant tenants.

After the section on amercements, chapter 23 went on to protect men and vills from being distrained to work on bridges, other than when such work was customary, the protection of ‘men’ rather than just of vills being added at Runnymede itself. This certainly offered something to unfree peasants. That the chapter spoke of ‘men’ rather than ‘freemen’ shows that the lowest sections of society were involved. The chapter was there, however, because lords were acting in their own interests. Their aim was to prevent their peasants being dragged away from their proper duties by work on the king’s bridges. Failure to carry out such work also rendered men and vills liable to amercement, and it was on the issue of amercements that the chapter in the Articles of the Barons had focused, which is why it appears after the section on amercements, a place it kept in the Charter itself. To enforce bridge work was an ancient royal right.44 It was, however, one which John had exploited in a new way for the bridges needed for his hawking.45

What then of the clutch of chapters about justice between 38 and 40? Chapter 38, in insisting that no bailiff (and not just a bailiff of the king) should put ‘anyone’ ‘to law’, and thus on trial, on his own unsupported accusation, seemed in theory to benefit everyone. This made the contrast with 39, the Charter’s most famous chapter, all the starker. Here it was ‘no free man’ not ‘no man’ who was to be protected from unjust imprisonment, disseisin and outlawry. The implication here was not that lords could outlaw their villeins as they liked. Outlawry was a public process for the county courts. Nor really could lords imprison their villeins. But what they could do was to disseise them of their land. That was a vital power, and to reserve it was the reason why the chapter protected the free man but not the man who was unfree. Lords, as far as the Charter was concerned, could disseize the latter as they liked. This was made even clearer in a slight revision to the chapter in the Charter of 1217, where it now stated that no free man was to be disseised of his ‘free tenement’. This gave lords even more scope because it meant a free man could be disseised of land he held in villeinage, which meant land to which villein customs, such as labour services, were attached. For free men to take on such land was risky because it could involve being dragged down into personal unfreedom, but with land in short supply, many took the risk.

And so to chapter 40. ‘To no one [nulli] will we sell, to no one will we deny or delay, right or justice.’ Surely, here at last, the Charter was offering justice equally to free and unfree alike. Unfortunately not. If a villein accused his lord of felony and sedition (not a very likely occurrence), it is true the king was bound to hear him. But it was the law itself that denied villeins any rights against their lords, and thus any justice from the king, in matters concerning land and services.

Lords, judging from the Charter, were thus very concerned to single out their unfree peasants and keep them in their place. But why so? After all, in practice lords did not make regular use of the full range of their powers; they did not usually dispossess their peasants, or make them work ‘at their bidding’. Sometimes lords were ready to convert labour services into money rents, even to grant villeins outright freedom. They also allowed (as later records show) peasants themselves to assess the amercements imposed in manorial courts, much in line with the stipulation in the Charter that they should be assessed by local men.46

It is, however, very clear why the powers affirmed in the Charter were so important. The early thirteenth century was a period when the rural economy was being transformed. Lords, aware that there was more profit to be made from land in the expanding economy, were reducing the areas that they had out at rent, and increasing the size of their demesnes, with the aim of cultivating them directly and having large grain surpluses to sell. But at the very time when lords wished to assert more control over their manors, there were forces making it more difficult to do so. The rising population was creating pressure to subdivide peasant holdings. Along with an increasing money supply, it was also generating a peasant land market.47 Lords, in the face of entrenched manorial customs, might find it more difficult to increase the burdens on their peasants than legal theory implied. Failing the testing of the issue in court, there could be considerable uncertainty as to where the line between free and unfree should be drawn. A peasant might appear as a sokeman in one survey and a villein in another. There were sokemen free sokemen ‘gersumarii’ sokemen, bond sokemen, villein sokemen and serf sokemen, a variety of names that suggests the struggle of sokemen to assert their freedom on the one hand, and of lords to deny it on the other.48 In addition, free men, as we have said, might take land to which villein services were attached. In these challenging circumstances, lords felt it was absolutely necessary to hold the line and retain their package of powers over the unfree. Those powers seemed vital for disciplining their peasant workforce and keeping control of what was going on in the manor. The Charter thus became an instrument of lordship that asserted the fundamental division between the free and unfree. It protected the unfree from the king, only to place them all the more firmly under their lords.

What made this lordly victory all the more significant was that it cut across a current which suggested it might have been otherwise. Unfree peasants could certainly be regarded as very much part of the realm. John enlisted everyone, free and unfree alike, in his scheme of national defence in 1205, just as everyone was enlisted to enforce the Charter.49 Peasants, free and unfree, were involved in the running of local government, having to give evidence at coroners’ inquests and at local courts. There was also the idea that the king should indeed protect unfree peasants from their lords. This emerges in the discussion, found in the Dialogus de Scaccario, as to why the king could take possession of the chattels of villeins when they were convicted of an offence. Was this not surprising, theDialogus asked, given that such chattels were the property of the lord? The answer was that if lords got the chattels in such circumstances, they might be encouraged to trump up charges against their villeins. So the king, ‘entrusted by God with the care of all his subjects’, had protected villeins from the ‘greed’ of their lords, by laying down that the chattels should belong to him.50 The unfree gained no protection from the greed of their lords in Magna Carta.

THE JEWS51

Chapter 10 laid down that if anyone died owing money to the Jews, the debt should not gather interest during the minority of the heir. In addition, if a debt owed the Jews came into the hands of the king, then he would only take the principal of the debt (the ‘catallum’), in other words he would not exact the accumulated interest. Chapter 11 went further, protecting both a debtor’s widow, as we have seen, and underage children. The latter were to have the necessary requirements for their support, and only then was the debt to be paid from what remained.

In John’s reign there were probably not many more than five thousand Jews in England, and they were confined to the major towns. That there were chapters about them in Magna Carta, nonetheless, shows the central part they played in the economic life of the country. The reason, as the Charter showed, was that Jews were moneylenders; indeed, given the church’s ban on Christian usury, they were the main source of credit. The borrowers ranged across society: free tenants, even of peasant status, knights, barons, earls, bishops and monastic houses. The debts of great men could run into hundreds, even thousands of pounds, with this business being in the hands of a small number of Jewish plutocrats, whose town houses excited awe and envy. The interest rate could run at one or two pence in the pound per week, so 22 per cent or 44 per cent a year. The Jews were not only resented because of their moneylending. They were also persecuted for their religion. A combination of both factors led to an appalling massacre of the Jews in York in 1189.

Given such powerful enemies, why was the Charter not more radical? Why did it not seek to ban interest on debts altogether, or even expel the Jews from the country as finally happened in 1290? The answer lay partly in an acknowledgement that the Jews were indeed useful as sources of credit, and partly in the way they were protected by the king. This was not an issue on which John would give way. The fact was that the Jews were a vital source of profit for the crown. There were a whole variety of ways in which debts owed the Jews could come into royal hands, whereupon the king could then exact them for himself. In addition, the king could tax the Jews at will. The reason was that the king regarded them as his own property. As a legal work of the mid-twelfth century, known as the Leges Edwardi Confessoris (The Laws of Edward the Confessor), put it, ‘the Jews themselves and all their possessions are the king’s’.52 John, like his predecessors, thus put the Jews under his ‘special protection’, and gave them a series of privileges. He was furious when they were maltreated in London. His resulting letter to the mayor and sheriffs, saying that his peace should be observed even if given to a dog, showed his contempt for the Jews, but also his determination to protect them.53

LONDON, TOWNS AND MERCHANTS54

London is the only town mentioned by name in Magna Carta. The Charter stipulated that the aids (that is, taxes) levied on London by the king were to be taken in the same way as those imposed on the rest of the kingdom, which meant that they were to be ‘reasonable’ in size and agreed by the ‘common counsel of the kingdom’. London was also to have all its ancient liberties and free customs by both land and water. In modern printings of the Charter, the first of these provisions is tacked onto the end of chapter 12, the second made to start chapter 13. Looking at the original engrossments, there would be a case for joining them together in an exclusive chapter on London itself, and that is how they appear in one early copy of the Charter.55 Chapter 33 of the Charter, following again the Articles, also met one of London’s major demands (one already conceded in royal charters), namely that fish weirs should be completely removed from the Thames and Medway. In chapter 35 ‘the quarter’ of London was to be adopted as the standard for measures.

London’s exclusive place in the Charter is absolutely understandable. It had played a central part in the rebellion against King John. Indeed its mayor was one of the twenty-five barons of the security clause. Already in the 1150s, London could be described as ‘the queen of the whole kingdom’.56 One reasonable estimate of its population in the early thirteenth century is around 40,000, having doubled in the previous hundred years. It was many times larger than its nearest rivals Bristol, Winchester, Norwich and York.57

Situated in a low river basin, sheltered by the friendly protecting hills around Blackheath, Brockley and Hampstead, London owed its pre-eminence to its location. Its place on the eastern side of the country opened it to merchants from the continent who, sailing up the Thames, could unload their wares, not in some channel port but well inland. The bridge, the most seaward over the river, meant that from London one could travel both north and south. Vessels could also navigate upstream as far as Lechlade in Gloucestershire. In the second half of the twelfth century, the exchequer moved from Winchester to Westminster, confirming London as the country’s governmental capital. With the might of the Tower controlling the city, and with William Rufus’s gigantic hall at Westminster providing a magnificent setting for feasts and assemblies, London was the chief seat of England’s monarchy.

The power and aspirations of the Londoners had long been recognized in concessions made to them by the king. These were the ‘ancient’ liberties that Magna Carta confirmed. They facilitated trade by freeing the citizens from tolls, and also allowed them to elect their own sheriffs. In the crisis of 1191, during King Richard’s absence on crusade, the Londoners had gained from John and the magnates of the kingdom the right to form a ‘commune’, which meant a sworn, self-governing association, headed by its own elected mayor.58 Neither Richard on his return, nor John on his accession, actually confirmed the commune, but they probably acquiesced in its existence. In 1206, during an episode that reveals the social tensions in the city, John complained that ‘the superiors’ of Londonwere exploiting ‘the common people’ at his expense. Nonetheless, he still accepted the city’s self-government, for he ordered the leading citizens, ‘the barons’, to elect twenty-four of their fellows to put matters right. In 1215 itself, little more than a month before he conceded Magna Carta, John granted the ‘barons’ of the city the right to choose their own mayor.59

The Charter also recognized the importance, albeit nameless, of ‘all other cities and boroughs, and vills and ports’, when it confirmed ‘their liberties and free customs’. Indeed, the original engrossments all have a new chapter beginning with this clause, rather than joining it onto chapter 13 on London. The most important of these towns did indeed have liberties to defend, since between 1100 and 1215 over seventy had acquired royal charters granting various privileges, sometimes similar to those enjoyed by London. In the charters, the towns were described as cities, boroughs or vills, so corresponding to the terminology in Magna Carta. Sandwich, Dover, Hythe, Romney and Hastings formed the Cinque Ports, with Rye and Winchelsea associated towns. The recipients of the grants were called citizens, burgesses or simply men. They held their property by burgage tenure, referred to in chapter 37 of the Charter, which meant in return for rent and with freedom of alienation.60 The wealth of the towns came from both trade and manufacture. The Charter, in one of its few non-partisan chapters (35), tried to facilitate both by standardizing measures of wine, ale, corn and cloth. It also, in chapter 41, gave merchants safe transit to, from and within England, free from all ‘evil exactions’. The importance of the merchants was seen equally in chapter 20, which treated them as a separate class alongside free men and villeins, when laying down that they should only be amerced saving their ‘merchandise’. That the merchants in England might be foreign, as, equally, English merchants might be in foreign parts, was clear in chapter 41, in which John established regulations about what should happen to both groups in the event of a ‘land at war with us’. The use of ‘land’ here, rather than kingdom, reflected that merchants, such as those from Flanders, might not come from a kingdom at all.

Much trade was, of course, internal to England, including that in corn, which was only imported in times of dearth. Ale was even more local, for it had to be consumed soon after it was brewed. The different cloths mentioned in the Charter – the dyed cloths, russets and halbergets in chapter 35 – were manufactured at many centres in England. A thirteenth-century doggerel mentioned the scarlets of Lincoln, the halbergets of Stamford, the russets of Colchester and so on.61 High-quality cloth was also imported, above allfrom Flanders, the centre of the European cloth industry. England’s chief import, however, was wine. With the loss of Anjou, in 1204, this came more and more from Gascony, routed through its great port of Bordeaux. England’s chief export was wool, above all to Flanders to supply its cloth industry. The duty on exported sacks of wool was to be the foundation of the English customs, and just why it was not introduced before 1275 is one of the mysteries of English royal finance.62 Since the cloth Flanders sent to England did not balance the value of the wool it imported, it paid for much of the wool in cash, in silver, which was a major factor in the stunning increase in England’s money supply in the thirteenth century.

At first sight, London and other privileged towns seem to be very much getting their due in the Charter, even against other sections of society. Thus the removal of fish weirs (as an obstacle to trade passing up and down rivers) impacted on the lords who had weirs on their own sections of river. Later, in compliance with this chapter of Magna Carta, among the weirs destroyed were those of Richard, earl of Cornwall.63 In other ways, however, towns got much less than they had hoped for, indeed less than they had solicited in the Articles of the Barons. There tallages and aids imposed both on London and on other cities with liberties were to require the common consent of the kingdom. Here, in terms of principle, the real prize was control over tallage. The king might acknowledge that taxes in the form of aids required some form of consent, however nebulous that consent might be in practice, hence the way the Charter, as we will see, tried to define the assembly which should give it. Tallages, on the other hand, the king claimed to levy on his towns at will. That they should henceforth require consent would thus have been a major gain. But in Magna Carta the reference to tallage was dropped. Instead just aids required common consent and only those imposed on London, not the other towns. There was another chapter where more might have been done for towns. Chapter 25 prevented the king increasing the fixed payments (called ‘farms’) due from his counties and hundreds, but no similar restrictions were imposed on town farms. The towns would certainly have welcome that for John was very much in the business of increasing their farms.64

John himself must surely have fought hard to keep tallage and town farms out of his concessions, arguing that his opponents had no business to interfere with his rights over his own property. That the barons did not make a stand on the issues was, however, also because of self-interest and self-regard. If Magna Carta prevented the king tallaging his towns and increasing their farms, then the barons also might be subject to the same restrictions in towns subject to their lordship. The earl of Chester, for example, was accustomed to take regular taxes from his burgesses of Coventry.65 There was a related danger. When the king tallaged his towns and manors, lords too could profit because they were usually allowed to tallage any of their properties that had once been the king’s. When, therefore, Alan Basset, one of John’s counsellors named at the start of the Charter, reached an agreement with his burgesses of High Wycombe, he reserved the sums he might levy ‘when the king and his heirs tallage their demesnes through England’.66 In keeping tallage out of the Charter, therefore, the magnates and king were making common cause against the towns. There was also a degree of social prejudice against towns, townspeople and trading. The baronial leaders would have agreed with the Dialogus de Scaccario when it criticized knights who had so far ‘degenerated from the dignity of their status’ as to make money from trade.67 In 1236 the Statute of Merton thought heirs might be disparaged if they were married either to burgesses or to villeins.68Significantly, although the mayor of London was one of the twenty-five ‘barons’ in the security clause, in none of the lists of the membership is he given a name.

All this helps to explain the very striking way in which London was excluded from any role in the assembly that was to give the common consent of the kingdom to taxation. This was true whether the assembly was to consent to aids levied on the kingdom as a whole or aids levied on London. The same assembly was to deal with both and, as defined in chapter 14, it was to be composed entirely of tenants-in-chief. The archbishops, bishops, abbots, earls and greater barons were to be summoned individually and the other tenants-in-chief generally, through the sheriffs. As noted, the mayor of London was one of the twenty-five ‘barons’ of the security clause. The king called the leading citizens his ‘barons’, but there is no suggestion that they would have been summoned either personally or generally under Magna Carta’s arrangements. What makes this all the more pointed is that London had been involved in great political decisions in the past. Londoners had played a key role in the accession of Stephen in 1135, claiming that it was their right and privilege to choose the king.69 In 1191, during King Richard’s absence on crusade, they had joined with John and the bishops and barons in deposing William Longchamp, as governor of the kingdom, putting the archbishop of Rouen in his place. This was the moment when the Londoners were granted their commune.70 There was also a feeling among Londoners that their consent should be sought, along with that of the kingdom, when it came to taxation. Thus a schedule of city demands from John’s reign includes one stating that tallages are to be abolished save when authorized ‘by common consent of the kingdom and the city’.71 The implication was clearly that if a tallage was to be levied on the city, then the Londoners would need to be part of the national assembly which consented to it. The Londoners probably also thought that they should be present when such an assembly consented to an aid, whether one paid just by London or by London as part of a general aid levied on the kingdom. Such representation, however, was not something that the barons of 1215 were prepared to contemplate. It was only in 1265, when the government was controlled by Simon de Montfort, that representatives of the towns were summoned to parliament.

THE CHURCH AND CHURCHMEN

Churchmen seem, in the Charter, to play a far larger part in the life of the realm than do townsmen. The archbishops, bishops and abbots were to receive personal summonses to chapter 14’s national assembly. Stephen Langton, archbishop of Canterbury, together with seven other English bishops, were all mentioned by name at the start of the Charter as those on whose advice John had acted. It was the same men, in chapter 62, who were to issue letters testifying to the Charter’s authentic text. Magna Carta, in its very first chapter, guaranteed the freedom of the church, and confirmed John’s previous concession over free elections. Chapter 22 preserved clerks from unjust amercements. Magna Carta also revealed the position of the pope both as head of the church and as overlord (thanks to John’s concession in 1213) of the kingdom. Thus the preamble listed Master Pandulf, a ‘familiaris of the lord pope’ – meaning a member of Pope Innocent III’s household – as one of John’s counsellors, while chapter 1 mentioned Innocent’s confirmation of John’s charter granting free elections. The Articles of the Barons, in their turn, had tried to prevent John seeking anything from the pope that might undermine the Charter.

This place accorded to churchmen was absolutely natural. It stemmed in part from the deep-rooted idea that the bishops in general, and the archbishop of Canterbury in particular, should be the king’s counsellors in both spiritual and temporal affairs. Innocent III himself opined that bishops should be ‘loyal to the king, profitable to the kingdom, and capable of giving counsel and help’.72 The place of the church in the Charter also stemmed from its great wealth. Some of the bishops of the seventeen English dioceses had incomes that equalled or exceeded those of the greatest earls. The same was true of the greater abbots (of St Albans or Westminster, for example). At the time of Domesday Book in 1086 over a quarter of the land in England was in the hands of the church, and the share had increased considerably since then with the foundation of new monasteries, especially those of the Cistercian order. Much of this land, moreover, was held directly from the king in return for the same military and other services (described more fully in the next chapter) as were owed by earls and barons. The church, as a landholder, therefore, benefited like everyone else from the chapters in the Charter which sought to restrain the abuses of the king’s local officials, and reduce the area of the royal forest.

There was also, however, a vast range of ecclesiastical activity governed by the church’s own procedures and canon law, the latter the sum of pronouncements by the pope and church councils down the ages. One of the most remarkable narratives from John’s reign is an account of Evesham abbey’s struggle against its lecherous abbot and the jurisdictional claims of the bishop of Worcester. Written by the monk Thomas of Marlborough, who played a leading part in the affair, it runs to over 130 printed pages in a modern edition and gives graphic accounts of journeys to Rome and decisions by the pope and his delegated judges.73 King John hardly appears once. This separation between church and state is seen in the very first chapter of the Charter where the concession to God of the freedom of the church is made quite distinct from the concessions to the realm. The precise boundary between ecclesiastical and secular jurisdiction had long been contentious, and Magna Carta illustrates something of the uneasy divide. The secular court had jurisdiction when the right to appoint a parish priest to a living (one claimed by many lords) was disputed. Indeed, the relevant legal action, that of ‘darrein presentment’, was one of those made more available under chapter 18 of the Charter. Ecclesiastical courts, on the other hand, had jurisdiction over Church revenues to which no secular services were attached, so tithes and land held ‘in free alms’. Thus, in chapter 22, the amount of an amercement imposed on a clerk was to be determined according to the value of his ‘lay tenement’, not his ecclesiastical benefice. Over the latter the king had no authority. The Charter also made a nod towards the Church’s claim to oversee the administration of a dead person’s property, the point being so that it could then ensure the fulfilment of charitable bequests. Chapter 27 thus said that the goods of someone who died intestate should be distributed by his nearest relations and friends ‘under the supervision of the church’.74 The church did not, however, use the Charter to strengthen the division between secular and ecclesiastical jurisdiction, although it often complained of its breach. The Charter thus did not try to reaffirm the concession made by Henry II after the dispute with Thomas Becket, which freed clerks accused of crime from trial and punishment in secular courts. Just why the Charter was not more of an ecclesiastical document will emerge when we look at the role of Archbishop Langton in the events of 1215.75

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