The Charter gives no information about the relations between lords and their villeins. By contrast, it provides a great deal of information about the relations between the king and his leading men, namely the earls, barons and others holding their land directly from him, holding, that is, from him ‘in chief’ – ‘in capite’ – as it was put in chapters 2 and 14 of the Charter. These ‘tenants-in-chief’, as historians call them, formed an elite group, above the many others who held their land not from the king, but from the tenants-in-chief themselves. To regulate relations between the king and his tenants-in-chief was a central thrust of Magna Carta. The tenants-in-chief were thus at the heart of the Charter. They were also, as the Charter saw it, at the heart of the kingdom. They alone, under chapter 14 of the Charter, were to give the common consent of the kingdom to taxation. The most important of the tenants-in-chief, the earls and greater barons, were to receive individual letters of summons; the rest were to be summoned generally by the sheriffs. At the end of the Charter, it was twenty-five barons, chosen by the barons themselves, who were to enforce its terms.
The land held by a tenant-in-chief from the king was often called a ‘feodum’, a word, translated as ‘fief’ or ‘fee’, which appears thirteen times in the Charter. And it is from ‘feodum’ that historians have often labelled the tenurial structure based on the fee as ‘feudalism’. Chapter 2 of the Charter highlights a major division within the tenants-in-chief, between, that is, the earls and barons on the one hand and knights on the other. Chapter 14 makes a different division between earls and greater barons, and the rest of the tenants-in-chief. Included among the greater barons were the ecclesiastical magnates, the archbishops, bishops and abbots, for they too held land direct from the king on comparable terms to their lay colleagues.
It was assumed in the Charter that fees were hereditary, as indeed they generally were. When the Articles of the Barons, in its chapter 1, stated that ‘heirs shall have their inheritance after the death of their ancestors …’, the issue was not the succession itself but the amount to be paid for it. At the start of the relationship between the king and a tenant-in-chief was the act of homage. This is not mentioned in the Charter, although it does feature in chapter 3 of the Charter of 1216 and its successors. Homage took place when a new tenant succeeded. The tenant would kneel down, place his two hands between the hands of the king and declare ‘I become your man for the tenement which I hold of you, and I will bear you fealty in life, limb and earthly honour.’1 This act established a much stronger and more intimate bond than that involved in a simple oath of fealty, for it was directly related to loyalty in return for land, as fealty was not. It also created a mutual bond, so that the ceremony of the hands symbolized the king’s protection of his man and the man’s subjection to his king. The ceremony was supposed to take place in a public space, so in a church, chapel or hall, and have a numinous quality. It meant every tenant-in-chief began his career with a very personal encounter with his king, and was thereafter bound into a mutual relationship with him.
While the 1215 Magna Carta said nothing about homage, it was very clear about the other ingredients in the relationship. One was the counsel the king could and should receive from his tenants, as the Charter testified when it came to taxation in chapters 12 and 14. Another was military. Chapter 2 mentioned that the tenants-in-chief held ‘by knight service’. The same chapter also referred to ‘the whole fee [feodum] of a knight’. This meant a fee for which the service of one knight was owed when the king summoned out his army. A knightly tenant-in-chief might indeed owe the king the service of one knight. The returns to an inquiry from 1166, on the other hand, show many earls and barons owing the king anything between twenty knights and a hundred.2 An alternative form of military service was that of garrisoning a royal castle. Chapter 29 was concerned to prevent John demanding a double ration – both garrisoning a castle and appearing in his army. An addition in the 1217 version of the Charter (chapter 29) made it explicit that the army service in question was ‘for the fee’ for which it was owed.
Chapter 29 also demonstrated the way in which military service could be commuted to money, when directing that if a knight wanted to serve personally or through a deputy, rather than give money in lieu, he should be allowed to do so. Giving money in lieu had long been common. For each of his many campaigns, John raised a tax called ‘scutage’. This is referred to in chapters 12 and 14, which tried to ensure that it was levied only by common consent. ‘Scutage’ was paid at a fixed rate according to the number of fees held by the tenant-in-chief, and thus the number of knights he owed. (Scutage itself – ‘scutagium’ in Latin – means shield.) If the scutage was £2 a fee, a baron with eighty fees would owe £160. Whether a tenant-in-chief led a contingent of knights, or gave scutage instead, depended on a personal agreement with the king, as did, in practice, the precise numbers actually brought to the host. The nominal service based on fees determined scutage but not any longer, if it ever had, the actual size of the contingents. These could be much smaller, which was a reflection of the costs involved.3
Other features of the relationship between the king and his tenants-in-chief likewise stand out in the early chapters of the Charter. There was the payment made when the new tenant entered his estate. The Charter stipulated this should be a fixed sum, called a ‘relief’, and not some arbitrary fine. There were the ‘aids’ (essentially taxes) of chapters 12 and 14, which the king could raise for ransoming his body (as King Richard had done), knighting his eldest son and the marrying on one occasion of his eldest daughter. And then in chapters 3, 4 and 5 there were the king’s rights of wardship over an heir who was underage. (The Charter of 1216 added to chapter 3 that the age of majority was to be twenty-one.) These rights meant the king held the fee of the heir (male or female) and received all its revenues during the minority. Alternatively (as chapter 4 said), he could give or sell the custody to someone else. The Charter went on, in the next chapter, namely chapter 6, to state that ‘heirs’ were to be ‘married without disparagement’, that is not to those below them in social rank. The king also had power over the widows of tenants-in-chief, hence the statement, in chapters 7 and 8, that widows should not have to pay to get their lands after the death of their husbands, and should not be forced into remarriage. Another chapter, 26, shows the special vulnerability of the widow and children of a tenant-in-chief when he died (the ‘children’ here implies there was no heir of age), for it tried to stop the king’s agents arbitrarily seizing chattels on the excuse that the deceased tenant-in-chief had owed money to the crown.
The status and military mien of the great tenants-in-chief are displayed in the effigies on their tombs and the images on their seals. The Purbeck marble effigies of William Marshal, earl of Pembroke, and William Longespee, earl of Salisbury (King John’s half-brother), both survive, the one in London’s Temple Church, the other in Salisbury cathedral. Longespee’s effigy shows him with his hand on his sword, his body encased in chain mail protected by a great shield on which dance the six lions of his coat of arms. The might of these men stands out in the castles sited at the centre of their fees. At his seat at Framlingham, Roger Bigod, earl of Norfolk, one of the twenty-five barons of the security clause, rebuilt the castle with no fewer than thirteen towers around its curtain wall.4
What kind of numbers then are we dealing with when it comes to earls and barons? Earls are easiest to count because they are always given their title, and had probably received it at a formal ceremony. In the Latin of the Charter, this made the lord a ‘comes’, while, in the French translation, he is a ‘conte’ – a ‘count’. It was only in English that he would have been called an ‘earl’, but that is how conventionally all historians describe these men. Thanks to the formal ceremony needed to enter the honour, one either was an earl or one wasn’t. In John’s reign they usually numbered around a dozen. There were seven earls among the twenty-five barons elected under the Charter’s security clause, while John was able to name four at the start of the Charter among his advisers. He might have added Ranulf, earl of Chester, and his ally, William de Ferrers, earl of Derby, had they not been absent from Runnymede.5 Barons are harder to count, because, although a baron did homage for his barony, he did not actually use ‘baron’ as a title. In addition, the estates constituting the ‘whole’ baronies of chapter 2 of the Charter were never clearly defined before 1215. Afterwards, they had to be, in order to decide who owed the £100 relief stipulated by the Charter. Often using this later evidence, I. J. Sanders in his study of English baronies between 1087 and 1327 was able to list 102 of them, although he then added another forty-eight ‘probable baronies’. Nearly all of these baronies were in existence before 1215, although far from all were in being at any one time. As for the knightly tenants-in-chief who held not baronies but knights’ fees, there were perhaps between three to four hundred of them.6
The average baronial income, drawn from a sample group taken from between 1160 and 1220, was about £200 a year and the median was £115, but seven barons had incomes of over £400. In one year between 1211 and 1212 the king’s officials were able to raise, after necessary expenses, around £1,000 from the lands of the underage John de Lacy. Probably that was the kind of income enjoyed by many of the earls, although later in the century, when we have more figures, some earls had incomes of several thousand pounds a year. By way of comparison, King John’s annual income from England at the start of his reign was about £22,000. The wage of a labourer working on one of the king’s buildings was one and a half or two pennies a day. A woman labourer received one penny, so 240th of a pound.7
Both earls and barons presided over the same kind of estate. That point emerges from the phraseology of the Charter where earls succeeded not to an earldom but to the ‘barony of an earl’, which in terms of its structure was no different from the barony of a baron. Although nearly all the earls were earls of a county, or the chief city of a county, this entitled them to no more than a fairly modest annual payment from the county’s revenues. The only exception was Chester, where the earl had all the king’s rights in Cheshire itself. The earldom was thus an honorary position, although one coveted, for the honour was great. Between the earls and greater barons, and the other tenants-in-chief, there was, however, a fundamental difference in the structure of their fees. True, all of them derived the bulk of their income from land, from the demesne manors that they kept in hand. But the earls and greater barons also had manors, parts of manors and other properties, held from them by their own knightly tenants, whereas minor barons and knights holding in chief did not, or did not on anything like the same scale. In 1166 William de Ferrers, earl of Derby, listed forty-seven such tenants.8 It was the total package, demesne manors and tenanted lands, that made up the hereditary fee of the earl or baron. Sometimes, as in chapter 43, which dealt with some fees in the king’s hands, this was called not the baron’s fee but his ‘honour’ (his estate).
Within the baronial fees or honours, the great majority of significant tenants in the early thirteenth century were knights, and their relationship with their baronial lord replicated that between the baron and the king. This was made very clear in respect of homage in chapter 3 of the Charter of 1216, which directed that, in the case of an underage heir, the lord (so not just the king) was to take his homage before receiving the wardship. The relationship is also illuminated in chapter 43 of the 1215 Charter, dealing with baronies in the king’s hands. This stipulated that the king should receive relief and other services from the tenants as if the barony was still held by the baron. The other services would have included aids and knight service, as chapters 15 and 16 of the Charter showed. They would also have included scutage, so that, when levied by the king, the baron recouped it from his knightly tenants. In addition, lords controlled wardships and marriages of underage heirs, and had rights over the remarriage of widows. Thus, under chapter 8, a widow had to give security that she would not remarry without the king’s assent, if she held her land from him, or ‘without the assent of her lord from whom she holds, if she holds from another’, a perfect laying out of the tenurial hierarchy. Lords also held a court (sometimes called by historians ‘the honorial court’) for their tenants by military service, and defended its authority in chapter 34 of the Charter. Such courts had jurisdiction over disputes around both possession of the fees and the services owed the lord. The courts might become a focus of loyalty and community. They were also a way for the lord to make money from amercements.
Knights were absolutely central to key features of the Charter. True, they were only named directly as the beneficiaries of two chapters, and these were limited to knightly tenants-in-chief. Chapter 2 regulated relief due from the heir or heirs of a knight, and chapter 29 allowed knights to garrison castles in person, and protected them from having to do both garrison and army duty. Chapter 43, too, benefited knights, although again only those holding their land from the king, when it regulated the relief and other services within honours that had come into the king’s hands. It was in the chapters on justice and local government that the general body of knights, not just those holding from the king, came into their own. Under chapter 18, the king was to ‘send two justices through each county four times a year’ to hear the common-law legal actions, called assizes, which determined disputes over property. These judges were not to act alone. They were to hear the cases with four knights of the county, elected by the county court. This was a striking recognition of the legal expertise and self-confidence of the knights. Evidently, they felt quite able to sit alongside the king’s judges. In addition, in what Blackstone wrongly made a new chapter (19), it was laid down that sufficient knights and free tenants were to stay behind for judgements to be made, if the business could not be finished on the day of the meeting of the county court. The role of knights was revealed even more remarkably in chapter 48 of the Charter. Under its terms, twelve knights in each county, elected by ‘upright men of the same county’, were to investigate the abuses of the king’s local officials and then, within forty days, abolish them. The knights thus had virtually a free hand in the reform of local government. Just how central this chapter was to the whole settlement was shown on 19 June 1215, when, as a condition of the peace, John had at once to set the work of the knights in motion.9 According to the calculations of Kathryn Faulkner, there were around 4,500 men accepted as knights in early thirteenth-century England, accepted that is for the purpose of sitting on juries and performing various administrative and judicial tasks. A large county such as Yorkshire had an estimated total of 238 knights; a small one such as Surrey, 90 knights.10 A few hundred of these knights would have been tenants-in-chief of the king, and direct beneficiaries of chapters 2 and 29. The rest would, for the most part, have been tenants of the earls, barons, bishops and abbots. As we have seen, the terms on which they held from their lords replicated those on which those lords held from the king. In respect of landed wealth, a survey of fifty-seven Oxfordshire knights from the 1220s shows that five had four or more manors, and thus incomes approaching baronial proportions. Some of these knights had their own tenants by knight service for whom they held courts.11 Many of the knights who star in Holt’s study of northerners come from this upper band of the class.12 Their influence helps to explain why chapter 34, protecting private jurisdiction, was drawn widely and spoke of the courts of free men, not just of the courts of barons. Below this upper level there were, in the Oxfordshire survey, twenty knights with two or three manors; twenty-five with one manor of reasonable size; and seven with smaller properties. A Bedfordshire survey from a few years earlier suggests a much higher proportion of knights in the last category, with over 50 per cent having less than a whole fee, although fees are an uncertain guide to actual property.13 Later in the thirteenth century, when the level was put at the bare minimum required, an income of £15 a year was deemed sufficient to render one liable to take up knighthood.14 Probably, in John’s reign, most knights with two reasonably sized manors or equivalent properties would have been above that level; those with one manor of reasonable size might have been at that level; those with less, below it.
The knights in John’s reign thus covered a very broad social spectrum. From a core of knights with one or two manors, the group reached up to those of baronial wealth, and down to those not much different from the free tenants sitting above the peasantry. In the upper levels of society, both kings and barons had long become knights through a formal ceremony in which they were girded with the sword of knighthood. Increasingly, aping their superiors, this was also true of the wealthier county knights. Whether, however, the general run of those described as knights in John’s reign had gone through a ceremony may be doubted. Probably men were accepted as knights on juries and in other local government roles because they in some way looked the part. This could cause arguments as to who exactly was a knight. The abbot of Crowland in the 1190s complained that four ‘knights’ who had testified against him were actually ‘low fellows’ (‘viles’), ‘not of the knightly order nor girt with sword’. Indeed they did not hold their lands by knight service. One of them could not even speak French.15 That the king sometimes ordered inquiries to be made by belted knights shows that not all knights were belted.
In the decades after Magna Carta, there was a rapid decline in the number of knights. In response to attitudes such as the abbot of Crowland’s, the view became established that only those who had gone through the ceremony could be regarded as holding the honour.16 Since the ceremony was expensive (the aspiring knight needed to have the necessary equipment), only the upper levels of the old knightly class took up the honour. The expense is shown in Magna Carta itself where the knighting of an eldest son was one of the occasions on which both king and lords could levy an aid. In 1216 John gave someone ten marks or a horse worth the same amount ‘in aid of his knighting’.17 In John’s reign, however, we still have the ‘old’ knightly class, and that did nothing to diminish its power. In a sense, it had the best of both worlds, the new and the old. On the one hand, there were belted knights very conscious of their status and importance. Yet, on the other hand, on juries and in other local roles, these men, without any formal distinction of status, worked alongside knights of much lesser estate. Indeed, just where knights stopped and free tenants began was not at all clear. Society was less stratified and arguably more cohesive than it became later. The Charter itself did not stipulate that the knights in chapters 18 and 48 needed to be belted, and thus did nothing to accelerate the development of a knightly elite. It also envisaged an easy cooperation and interchange between knights and free men, thus reflecting the lack of any clear division between those who were and were not knights. The Charter had two men running wardships where the Unknown Charter had four knights. Under chapter 19, it is knights and free tenants together who are to stay behind to assist judgements in the county court.
The knights of John’s reign were certainly militarily active, hence their importance in the rebellion of 1215. They could all have performed the army service and castle guard expected of the knightly tenants-in-chief in chapter 29. The same men were equally busy in local affairs. Many knights in John’s Irish army of 1210 can be found sitting on grand-assize juries. The knights were well qualified for the roles assigned them in Magna Carta. Under the procedures of the grand assize, which determined the right to land, twelve knightly jurors, chosen by four knights, gave the verdicts. Panels of four knights were regularly appointed to investigate the excuses of those who did not turn up in lawsuits, and also to ‘bear the record’ of proceedings in the county court either before the king or before his judges at Westminster. The king was employing knights in a whole raft of roles across local government: as sheriffs, coroners, keepers of manors and forest officials. Lords were employing them too, notably as their stewards. Matthew Paris described the knight Laurence de Tybridge, steward of St Albans abbey, as ‘a man most handsome in body, eloquent, wise and knowledgeable about civil pleas’. The vigour with which he stood up for St Albans in one dispute earned him the hatred of the great baron Robert fitzWalter.18
The roles assigned to the knights in chapters 18 and 48 of the Charter were part of a wider campaign, well under way by 1215, for local men to control local offices.19 The strength of feeling is brilliantly highlighted by a case in the Somerset county court in 1204 recorded by twelve knights of the county. Here Richard Revel upbraided the sheriff for being an outsider while he and his father were ‘native men and gentlemen of the country’ – ‘naturales homines et gentiles de patria’.20 In Lincolnshire, no fewer than twenty-nine local men stood surety for the 500 marks offered for the sheriffdom by the major county knight Thomas of Moulton.21 The men of Cornwall, and of Somerset-Dorset (a joint sheriffdom), both offered John over 1,000 marks to have sheriffs chosen from their number, who would be resident in their counties.22 The men of the counties who made such offers could include bishops and barons as well as knights, but knights were at the heart of such groups. Indeed, bishops and barons, thinking they could look after themselves, sometimes refused to be involved.23 It was knights who led the resistance in Devon when the sheriff seemed to be breaking the county’s charter. In December 1214 twelve knights apiece from Cornwall, Devon and Somerset came to the king to negotiate about the concession of further ‘liberties’.24
The stipulation that the knights in chapters 18 and 48 be locally elected thus responded to local society’s desire to control the personnel of the king’s government in the shires – ‘self-government at the king’s command’, as the historian A. B. White put it.25 In chapter 18 it is clear from the context that the county court is to be the body electing the four knights sitting with the judges. (In Latin, the word ‘comitatus’ can mean both ‘county’ and ‘county court’.) Chapter 48, where the twelve knights reforming abuses are to be elected by ‘probos homines eiusdem comitatus’, is more ambiguous, and the words are usually translated as simply ‘upright men of the same county’.26 However, John’s letter of 19 June 1215, setting chapter 48 in motion, shows that the county court was again to be the forum.27 A newly discovered letter also shows the elections were to take place in each county before four knights appointed by the twenty-five barons of the security clause.28
The county courts usually met once a month, but little survives from this period to show exactly how they worked.29 That, however, knights were central to their procedures, there can be no doubt. It is panels of knights who routinely bear the record of cases in the county court before the king or the judges at Westminster; in 1212 it is knights who are arrested for making false judgements in the Gloucestershire county court; in the Herefordshire court, a year before, a case is postponed because the knights are in disagreement and too few are present; in Suffolk, in 1213, money is to be paid over at the county court ‘before the knights’; in Oxfordshire, in 1222, ‘nearly all the knights’ of the county court ‘rise up’ in protest against a particular judgement.30 Just how many knights routinely attended the court we cannot know. There was probably a smallish core at the forefront of its business, as there was when it came to sitting on grand-assize juries. The Gloucestershire case suggests that it was a clique of knights who were managing the judgements. On the other hand, important business may well have brought in larger numbers. The framers of chapter 48 cannot have known precisely who would constitute the ‘upright men’ of each county, charged with elections. There cannot have been any doubt, however, that they would be largely synonymous with the county knights.
None of this means that earls and barons lacked influence in the county court. The knights were their tenants, and many were also their stewards. Indeed, those who attended the court are sometimes described as ‘stewards and knights’ or ‘knights and stewards’. In a case in the Lincolnshire court, in 1226, knights of the county, rallying in defence of a chapter in Henry III’s Magna Carta, threatened a steward who had stepped out of line with telling his lord about his behaviour.31 Barons could also appear in the county court in person. Yet it would be equally wrong to think that the county court was simply dominated by great lords. In 1220 the baron Roger de Montbegon, who was also one of Magna Carta’s twenty-five barons, swept furiously out of the Nottinghamshire court when he found the majority opinion against him.32 The Oxfordshire knights who rose up against a court judgement in 1222 were not acting for a great baron or barons; there were none in the county. Instead, the knights were standing together against the over-mighty sheriff, Falkes de Bréauté, and his agents.33 Clearly, the balance of power varied between counties, depending on the local political geography. That the twenty-five barons in 1215 ordered the elections to take place before four nominated knights was partly to protect the process from the sheriffs, who presided over the county courts. It also meant that indirectly they hoped to have some influence over the elections themselves. But the twenty-five only went so far. They did not say the four knights, as in the grand assize, shouldactually make the election. That would have been contrary to the terms of the Charter.
FREE MEN AND FREE TENANTS
Magna Carta reached out to a much broader section of society than that composed of earls, barons and knights. John granted the Charter, as we have seen, to ‘all the free men of our kingdom’. Indeed, free men were apparently a far more privileged group than earls and barons, having seven chapters in the Charter devoted specifically to their interests, whereas the latter (like knights) only had two.34 In some cases, it is true, ‘free men’ meant essentially earls, barons and knights. There can have been few outside that number who held the courts belonging to free men whose jurisdiction was protected in chapter 34. Indeed, a later gloss on the clause described it as dealing with the courts of ‘magnates’.35 On the other hand, free men are sometimes manifestly distinct from the earls and barons, notably in the chapters on amercements (20 and 21) where the two groups are given separate treatment. In other cases, ‘free man’ would seem, in theory at least, to embrace all sections of society above the unfree peasantry. This was true of chapter 27, which directed that ‘if any free man’ died intestate, his chattels were to be distributed by his ‘closest kin and friends’. It was also true of chapter 30, under which no official was to take the horses and carts of ‘any free man’, save ‘with the consent of the free man himself’; the consent of the free man was an empowering concept. And, of course, under chapter 39 it was ‘no free man’, not just no earl, baron or knight, who was not to be proceeded against save by the lawful judgement of his peers or by the law of the land.
Free men were a wider group than the free tenants, who in chapter 19 were to stay behind with the knights to hear the assizes. A free tenant by definition held land, a free man might not, for he could be a merchant, a professional soldier or a craftsman. All free tenants were free men, but not all free men were free tenants. Free tenants themselves were divided according to the terms on which they held land, as the Charter made clear in chapter 16. They could owe service for the fee of a knight or ‘for another [kind of] free tenement’. Chapter 37 revealed that the latter might include tenements held in fee farm, or in socage, which meant essentially tenements held in return for different kinds of rent.36
Free tenants holding land for rent included a very large slice of the peasantry. They also included a far more significant group, governmentally and politically, one whose importance helps to explain why the chapters in the Charter on free men and free tenants appeared at all. This is a group hard to define, and very little studied by historians, but one recognized by contemporaries when they spoke, as in chapter 19, of free tenants separate from knights but nonetheless cooperating with them. These free tenants formed a hinge between the general run of the peasantry free and unfree, on the one hand, and the knights on the other. They are best seen in the groups of twelve men called on to staff the juries representing the local government division of the hundred. Such juries were vital institutions, for they gave evidence about events in the hundred to the king’s judges on their visitations to the counties. In terms of personnel, the juries probably overlapped with the men who took a leading part in the business of the hundred court, attended the county court and staffed the numerous common-law juries. (It was only the juries of the grand assize that were confined to knights.) When the personnel of these hundred juries can be studied for later years of the thirteenth century, at the bottom of the scale they comprise men who in terms of the size of their landed holdings seem of peasant status. At the top of the scale there can be some knights. In between these two groups, and forming the social core of the juries, were men who held between thirty and a hundred or so acres. Their land might be in a contiguous block or scattered between several holdings. It might be all in hand, or party held by tenants. In the Hundred Rolls, jurors from Blackbourn hundred in Suffolk include those with 32, 56, 64, 86, 110, 129, 145, 180 and 320 acres. The average holding was 79 acres.37 In such groups, some members were rising socially from the ranks of the peasants, others descending (often as younger sons with small provision) from the ranks of the knights.38 In the early thirteenth century, the number of those on such juries passing for knights would have been larger, given the later decline in knightly numbers. But many of the jurors, even in the 1200s, would have been below the knightly level, and have just been regarded as free tenants. It was through these juries, indeed, that the jagged and uncertain line between knights and non-knights ran, as did too the divide between those who could speak both French and English and those who were only English speakers. The abbot of Crowland complained, as we have seen, that one of the knights who swore against him had no French, and that must increasingly have been the situation as one went down the social scale.
The role in local affairs of the kind of ‘hinge’ men on the juries, above the general run of peasants but beneath the knights, can be sensed in various provisions in the Charter. Thus if a wardship is pillaged, it is to be entrusted to ‘two law-worthy and prudent men of that fee’ (chapter 4). If common-plea business cannot be finished on the day of the county court, then sufficient free tenants as well as knights are to remain so that judgements can be made (chapter 19). When amercements are imposed on free men, villeins and merchants, their amount is to be determined by ‘the oath of upright men of the neighbourhood’ (chapter 20); and when the sheriffs or bailiffs make lists of the chattels of deceased tenants-in-chief, they are to do so ‘by view of law-worthy men’ (chapter 26).
King John himself was very aware of the importance of the kind of men found on the hundred juries, and they were probably the main target of resounding ceremonies in 1209. In great meetings throughout the country, climaxing at one before John himself at Marlborough, mass acts of homage to the king were performed by free men. These men were not swearing loyalty to him in return for land that they held from him, as in a normal act of homage. The great majority, after all, held no land from the crown. But John knew what he was doing, for the one person to whom homage could be done, where land was not involved, was the king. Of course, these men cannot all have knelt down before the king and placed their hands in his. Probably, while taking their oaths, they raised their hands rather like the salutes at some fascist rally. The ceremony symbolized John’s protection of the men and their subjection and obedience to him. It was the reciprocity of the bond thus created, absent in a mere oath of fealty, that explained how the ceremony could be regarded as one of homage. John had recognized the military power of this group in his ordinance for the defence of the realm in 1205. It enlisted knights and also ‘serjeants’ and ‘others holding land’, ‘serjeant’ here probably describing free tenants just beneath the rank of knight.39
FAMILY, FRIENDSHIP AND NEIGHBOURHOOD
The vision of England in chapter 14 of the Charter was of a kingdom divided up into, and dominated by, the fees of the earls, greater barons and ecclesiastical tenants-in-chief. These were the men who were personally summoned to the assembly giving the kingdom’s common consent to taxation. They can answer for the kingdom, the implication seems to be, because by commanding the loyalty of the tenants in their fees, collectively they answer for everyone in the kingdom. There was some truth in this vision, but not the whole truth. Magna Carta’s England is England, but only because other chapters hint at a more nuanced and complex picture from that found in chapter 14. In the first place, there were other ties beyond those in the vertical relationship running down between king, barons and their tenants.
The Charter is very clear about the importance of the family. The chapters protecting widows, wards, children and heirs were very much there at the behest of the family groups to which they belonged. That was made plain in chapter 6, which said that before heirs could be married, their closest kin were to be informed of the proposed union. Chapter 3 of the Articles of the Barons had gone further and demanded that the marriages should take place with the closest kin’s ‘counsel’.40 Likewise, under chapter 27 of the Charter, if a free man died intestate, his chattels were to be distributed by his nearest relations and friends. Families could be united in their actions, and the brothers Thomas and Alan Basset, and Peter and Matthew fitzHerbert, stood shoulder to shoulder at the start of the Charter among John’s counsellors. They could also be divided, although the divisions were not always what they seemed. It was surely to keep a foot in both camps that William Marshal, earl of Pembroke, remained loyal to King John, being named first among John’s lay counsellors in the Charter, while his eldest son was one of the twenty-five barons of the security clause. The twenty-five included two Bigods and two Clares (in both cases father and son), among many other ties of kinship.
The chapter on wills also mentioned ‘friends’ as well as family. Ties of friendship could be given visual expression. On his dashing seal, Robert fitzWalter displayed the coat of arms of Saer de Quincy, earl of Winchester, thus proclaiming their military, political and personal alliance. Saer on his seal repaid the compliment. Nor did this just apply to the men, for Saer’s wife, Margaret, likewise featured fitzWalter’s coat on her seal.41 Friendships might develop from meetings at court or on campaign. They could also grow from ties of neighbourhood. There was a crucial neighbourhood dimension to the 1215 rebellion in the role played by men from the north, ‘the northerners’ of Holt’s classic book. Particularly in the early stages of the revolt, that was the name often given by contemporary writers to the rebels as a whole. Later, the uprising became much wider, and the twenty-five barons of the security clause were balanced in favour of those from the eastern and home counties. But still eight of its number had large interests in the north.42 It was doubtless the northerners who secured at Runnymede the inclusion of the ridings of Yorkshire and Lincolnshire among the local government units from which the king was not to take more than the fixed annual payments of their ‘ancient’ farms.
Working for royal government on local juries and inquiries itself solidified groups of neighbours. The Charter directed, in chapter 20, that amercements were to be assessed ‘by the oath of upright men of the neighbourhood’. Groups of kinsmen, friends and neighbours were equally solidified by the pressures of royal government. One way in which that happened is shown in chapter 9 of the Charter. This sought to prevent the sureties of a crown debtor from being distrained to pay his debt, when the debtor could still pay himself. If the sureties were forced to pay, they could have the debtor’s lands and rents in compensation. It was routine for King John to demand sureties from a debtor. When he finally turned on the great northern baron William de Mowbray, and demanded that he pay an astronomical debt of 1,740 marks, his sureties included seven great barons, six of them from the north, all of whom had to go surety for specified amounts.43 As chapter 9 in Magna Carta shows, this system could create tension between the debtor and his sureties, but it might also generate a community of interest and incipient action. Four of Mowbray’s pledges and the son of another appear with him among the twenty-five barons of Magna Carta’s security clause.
Ties of family, friendship and neighbourhood existed alongside ties of tenure and could indeed support them. But the tenurial hierarchy itself was far less clear-cut than the simple division into earls, barons, knights and free tenants might seem to imply, as indeed the Charter again hinted. At the very top, there was uncertainty about the position of earl, for John and his predecessors were very far from admitting that the honour was always hereditary. Indeed, even in Magna Carta the earl was to owe relief for the ‘barony of an earl’, so not actually for an earldom at all. As we will see, this may well have been a contentious issue at Runnymede itself.44
There was also ambivalence over the position of baron. Chapter 2 of the Charter, in fixing the relief of tenants-in-chief, made a division between barons succeeding to baronies and knights succeeding to knights’ fees. There was nothing novel in that. The distinction is found in both the Dialogus de Scaccario and in a list of the tenants-in-chief in Shropshire made by its sheriff in 1212.45 Yet John could also describe someone who only held one knight’s fee as his ‘baron’, which suggests that the term could still be used for any tenant-in-chief of the crown.46 It was equally employed by great lords to describe their own knightly tenants. ‘I now wish to consult my barons,’ said William Marshal.47
Even if one did try to draw a line between tenants-in-chief holding baronies and tenants-in-chief holding knights’ fees, how logical in terms of wealth would it always be? That some barons might be men of no very great importance is clear from chapter 14 of the Charter, in which only greater barons were to receive personal summonses to its national assembly.48 There was equally a problem the other way round, created by the wealth and importance of those who held only one or two fees from the crown and so could scarcely qualify as barons at all, let alone greater barons. A case in point is William of Huntingfield. He was one of the twenty-five ‘barons’ of Magna Carta’s security clause, yet he only held one fee (at Mendham in Suffolk near Huntingfield) from the crown. Much of his wealth came from other properties, including seven fees held from the honour of Eye.49 Men such as Huntingfield were rising in society from knightly backgrounds, often through royal service, and augmenting their inheritances through purchases, and giftsfrom great lords and from the king. Alan Basset, one of the counsellors John named in the prologue to Magna Carta, was a self-made man, a younger son, who put together an estate of baronial proportions, including the manors of High Wycombe and Woking, which he received from the king.50 Thomas Basset, Alan’s elder brother (although both were younger sons), illustrates another point, namely how quickly families could rise and fall. By the time of his death in 1220, he too had built up a great estate, including, as a gift from King John, the manor of Headington outside Oxford, but leaving no son, the estate was split between his three daughters. Thomas’s branch of the Bassets had come and gone in a generation. It would have been a moot point whether Huntingfield and the Bassets were entitled to the personal summonses to the national assembly envisaged in Magna Carta’s chapter 14.51 The same would have been true in the case of Simon of Kyme. He was a leading figure in Lincolnshire from the 1190s. He had his own following, including the Lincolnshire knight Peter of Beckering, yet of his thirty or so fees, only two were held in chief.52 At least Huntingfield, Kyme and the Bassets did hold in chief, and would have been summoned under the terms of chapter 14. Yet there were many of equivalent or near equivalent status who would have been ignored altogether since they held nothing from the king.53
In this fluid situation, the Charter attempted a piece of social cementing. Chapter 2 fixed for the first time the size of a baronial and knightly relief. For the first time, therefore, it became necessary to decide who held by barony and who held by knight’s fee, for the two groups were to owe reliefs of different sizes. From one point of view, those who fell on the baronial side lost out, for they had to pay a larger relief. But the gain was that they would now be part of a group very clearly separated, in terms of status, from those below them. They were to form a new elite, as David Crouch puts it, the ‘king’s barons, the nobles closest to the crown’.54 The Charter also confirmed and improved the privileges that went with baronial status. Chapter 21 of the Charter thus laid down that earls and barons were to be amerced by their peers, which meant their social equals. This separated earls and barons from everyone else, free men, merchants, villeins and clerks, who were to be amerced by men of the neighbourhood. This privilege in the Charter built on existing practice, for prior to 1215, if an earl or a baron was convicted of an offence before the king’s judges in the localities, the amercement was assessed not before the judges but at Westminster by the exchequer.55 The aim of the Charter, therefore, was to prevent this happening and ensure that earls and barons were amerced by themselves, in the process making them all the more of an exclusive group.56
Another privilege affirmed by the Charter was that relating to national assemblies. Under chapter 14, as we have seen, it was only earls and greater barons who were to receive personal summonses to the councils empowered to give the kingdom’s consent to taxation. The other tenants-in-chief were to be summoned generally, through the sheriffs. Here then the great men of the realm were not even content with a division between the baronage and the rest. They set the bar for personal summonses higher, so that only greater barons would get them. Those who were not tenants-in-chief, of course, would not be summoned at all. Probably chapter 14 reflected what had long been existing practice. It responded to the idea that the duty to give counsel was an obligation involved in tenure, and thus especially something which fell on the king’s own tenants.57 Yet, given the changing nature of society, might not the Charter have included ‘magnates’ within the assembly, thus ensuring the presence of great men who were not tenants-in-chief? The answer was a resounding no! Instead, the Charter pulled up the drawbridge and sought to wall in the status quo. By enshrining the existing system, its aim was to ensure that national assemblies remained exclusive and exclusionary bodies.
In this area, however, Magna Carta was becoming out of date at the very time that it was promulgated. There were simply too many men around who were not technically barons, but whose wealth and status justified a personal summons. While, in the course of the thirteenth century, it was indeed a personal summons to parliament that created a parliamentary peerage, it was not a peerage defined by those who held baronies. It was defined by those whose wealth and status seemed to necessitate a summons.58 The problem with chapter 14’s vision of the realm was revealed near the end of the Charter, in the very provision where it seemed again to be recognized. Under chapter 60, all the liberties that John had conceded to be held in the kingdom:
as much as it pertains to us towards our men [nostros], all the men [omnes] of our kingdom … are to observe, as much as it pertains to them, to their men [suos].
As is usual in translations of the Charter, I have inserted here ‘men’ after ‘our’, ‘all’ and ‘their’, since this is how the chapter was certainly understood. The king’s men were his tenants-in-chief and pre-eminently his earls and barons. At first sight, then, we have here the traditional ‘feudal’ hierarchy, with the king making concessions to his tenants-in-chief, which they then pass down to their own men. But this is not what the chapter says. Instead of John stating that ‘our men [nostros]’ are to observe the concessions in the Charter, he says that ‘all the men [omnes]’ of the kingdom are to do so. The tenurial hierarchy has, therefore, been invaded by a body completely un-tenurial in its structure. When Henry III referred to this chapter in 1234, he said it was his archbishops, bishops, earls, barons and ‘other magnates’ who were to obey the Charter.59 The king thus recognized that there were ‘magnates’ quite on a par with his comital and baronial tenants-in-chief. No such recognition was made when it came to deciding who should be summoned to the national assembly in 1215. In that sense Magna Carta was a deeply conservative document.
THREATS TO THE BARONIAL FEES
Earls and barons faced another problem, namely that of maintaining authority within the landed estates which made up their ‘fees’ or ‘honours’. Here we should think of the fees not as a neat set of ‘feudal pyramids’, but as a range of hills such as that around Wastwater in Cumberland, all of different shapes and sizes, with one merging into another, and with rocks and boulders frequently slipping off the sides into gullies and the lake. The vastly different size of baronies is revealed in the returns to the inquiry of 1166, where some owed the service of sixty or more knights, and some fewer than ten.60 The fees of barons, moreover, did not exist in some steady state, for they were liable to come into the king’s hands either through forfeiture or through failure of heirs. That had happened to the honours of Wallingford, Nottingham, Boulogne and Lancaster, as chapter 43 of the Charter shows. Fees were also liable to division. The statement in chapter 2 about relief being due for a ‘whole barony’ reflected the fact that baronies were sometimes no longer ‘whole’. Division could especially come about through the marriage of heiresses, which the Charter sought to regulate in chapter 6. If there was a single female heir, the honour remained whole. Both William Marshal and William Longespee had been set up by marriages to such coveted women. But if there was more than one female heir, then the barony would be split between them, as happened to the honour of Leicester in John’s reign. This was why chapter 2 of the Charter spoke of the heir ‘or heirs’ of baronies, the latter being heiresses or the descendants of heiresses. As chapter 6 also indicated, another dynamic was the king marrying an heiress to someone of lower social status, the ‘disparagement’ that the chapter tried to prevent.61
In maintaining the loyalty or at least the obedience of their knightly tenants, a great deal then depended on the history of the fee and whether it had remained whole or been split apart. Much depended too on its geographical contours. Manifestly, a lord would have more control over his tenants if they lived close to one of his main residences. The success of the Ferrers earls of Derby in retaining the service and loyalty of their tenants owed a great deal to the compactness of their honour and the proximity of the fee to its centre at Tutbury in Staffordshire.62 The loyalty between lord and tenant could be very real, as is clear from chapter 4 of the Charter. There a wardship, pillaged by the agents of the king, was to be handed over to ‘two law-worthy and prudent men of that fee’. The ‘men of the fee’ had their own interest in preventing the wardship being exploited, but the implication was also that they could be trusted to look after the interests of their future lord. The mutual bond established by homage and tenure set standards of conduct. The knight Richard de Vernon justified his rebellion in the 1260s by saying that ‘in the whole time of the war he followed his lord, Robert de Ferrers, earl of Derby, from whom he held his land and to whom he had done homage’. Many knights in the 1215–17 civil war would have justified their conduct in similar terms.63 It was likewise how the Marshal expected his tenants in Ireland to behave, when he called upon them to show loyalty in return for the fees that they had been given.64
There were, however, forces working to unravel the tenurial bond. One, of course, was that knights played a major role in the running of local government for the king. A lord might welcome it when one of his knights was thus employed, but he had also to reckonwith the independence they obtained. The development of the common law also meant that under-tenants could easily litigate in the courts of the king, rather than in those of their lords, a threat that chapter 34 of the Charter tried to do something about.65Another destabilizing factor was the way knights might hold from more than one lord. That was less true of the middle-ranking knights who held only one manor, but it was increasingly common further up the knightly scale. The Charter itself bears witness to the tensions produced when this other lord was the king. Thus chapter 37 shows that the king was usurping wardships which belonged to ‘the fee of another’ by knight service, on the grounds that the tenants also held from him by rent or some other form of service. The equivalent chapter in the Articles of the Barons (27) made it even clearer that this was a case of usurping the wardships of knightly tenants, for it spoke of John taking ‘the custody of the knights of the fee of another’. Chapter 53 in the Charter also put on the agenda the whole question of how the king took the wardship of lands ‘which are of the fee of another’, when the tenants also held from him by knight service. In the king’s view this was a prerogative right, but that it was raised in the Charter, if only as a matter to be dealt with at the end of John’s prospective crusade, shows how irritating it was thought to be.66 At Runnymede itself two of the great baronial leaders, Eustace de Vescy and Gilbert de Gant, complained about John usurping wardships that, they claimed, belonged to their fees.67 Equally damaging were the conflicts when service and wardships were claimed by rival lords. In 1211 Vescy himself was involved in one such case, and it was the subject of much later litigation.68
In these difficult circumstances, the attitude of great lords was itself ambivalent. On the one hand, they wanted to employ whomever they liked in their service. The king had the right to do that, as the Dialogus de Scaccario affirmed.69 It was vital for lords to do the same. If they became stuck in some honorial straitjacket, they might end up with a very inferior entourage. Thus William Marshal’s following contained very few tenants, and was rarely rewarded with grants of land.70 The search for good service was a dynamic and disruptive force in society. Great lords were also far from dependent on tenants and honorial courts for their local power. As we will see in the next chapter, many had control of the local government division of the hundred and claimed the right to hang thieves on their own gallows. Yet, for all this, lords remained very much in the business of preserving the integrity of their fees, and the service of their tenants. Quite apart from the military service they could expect, their rights when it came to aids, scutages, reliefs, wardships, and the marriages of heirs and widows were valuable as sources of both money and patronage. When it came to controlling the fee, however, lords faced problems from the tenants themselves. No ambitious knight wished to be stuck with a lord who could do him no good, whatever the bond of homage. Knights in Oxfordshire therefore deserted their ineffectual baronial lord, Henry d’Oilly, and entered the service of the coming man, Thomas Basset of Headington, sheriff of the county from 1202 to 1214. They also entered the service of the king and litigated in his courts, despite d’Oilly’s attempts to preserve the jurisdiction of his own.71 The competition for good lordship was just as disruptive a force as the competition for good service.
There were also tensions within the fees arising from the demands that lords made of their tenants. Barons and knights had much in common. They could all agree about keeping the unfree peasantry in its place. They could all agree about the chapters in the Charter limiting the king’s financial exactions and insisting that he acted justly. When, in 1219, the great baron Gilbert de Gant argued, in the Lincolnshire county court, that he had suffered unlawful disseisin, the whole court rallied behind him and Magna Carta. They ‘cried out with him and for him, and for themselves and for the common liberty of all the kingdom conceded and sworn’.72 There remained, however, a clear difference of interest between the great majority of knights, holding up to one or two manors, and with few or any tenants holding by knight service, and the greater barons who had many manors and many knightly tenants. The Charter shows how ruthlessly the king exploited his tenurial rights, and there were surely ‘bad lords’ who did the same. That such men disparaged heirs in marriage and laid waste to wardships is clear from later legislation.73 Evidence for the lord–tenant relationship in John’s reign is limited, but there are two remarkable documents that shed light on the matter. One is a charter, issued sometime between 1207 and 1209, by the great northern baron Peter de Brus, making a series of concessions to the knights and free tenants of his wapentake of Langbargh in the north Yorkshire moors. Knights and free tenants are, of course, precisely the group we find in chapter 19 of the Charter, staying behind to attend judgements in the county court. Under the Brus charter, no one was to be put on trial at the wapentake court save in ‘reasonable’ fashion and ‘by consideration of the wapentake’, which anticipated chapter 38 of the Charter. Brus also conceded that any penalties were to be assessed according to the means of those convicted and the nature of the offence; so chapter 20 of Magna Carta. Indeed, both charters used the same word for the offence: ‘delictum’. And finally, Brus put his concessions into a charter, and described them as ‘liberties’, which were to be held ‘in perpetuity’, all like Magna Carta. Brus had just bought the wapentake of Langbargh from King John for 400 marks. He still owed 1,300 marks of his finemade in 1200 to acquire the nearby lordship of Danby. The knights and free tenants had every reason to expect, and probably were already experiencing, his oppressive rule.74 The Brus charter does not stand alone as testimony to tensions between lords and men. After Magna Carta, Ranulf, earl of Chester, was faced perhaps by a revolt, certainly by a series of demands from his ‘barons of Cheshire’, baron here meaning his major tenants in the county. Ranulf refused some of what was asked, but conceded much in what became known as the Cheshire Magna Carta. The issues between Ranulf and his barons replicated in part those between the barons of England and the king. So the eighteen chapters of the Cheshire Charter included provisions about amercements, widows, marriages (to be without disparagement), military service and the inheritance tax called ‘relief’.75
SOCIAL DIVISION IN THE CHARTER
Did any of these tensions between lords and tenants surface in Magna Carta? They were certainly not the Charter’s major theme. It is usually viewed, pretty well exclusively, as a document aimed at the king. Indeed, when it came to the treatment of tenants, the baron seemed to set the standard for the king to follow. Thus chapter 43 of the Charter directed that if an honour came into the king’s hands, the king should hold it as the baron had held it. He should demand no other services from the tenants than those given to the baron if the barony ‘was in the hand of a baron’. Good baron, bad king.
This is not, however, the whole story. In other parts of the Charter, both in what is put in and in what is left out, there are clear signs of conflict. Earls and barons were taking shots at knights and under-tenants, knights and under-tenants were shooting back at earls and barons. Earls and barons, therefore, made quite sure that chapters 2–5 on relief and wardship were exclusively for themselves and other tenants-in-chief. While chapter 8, forbidding the enforced remarriage of widows, did apply to under-tenants, here lords inserted a safeguard, on the same lines as the safeguard inserted by the king: widows needed the consent of their lord if they wanted to remarry, just as widows of tenants-in-chief needed the consent of the king.
The tensions thus suggested reached a head in chapter 15. There the king promised that he would not grant ‘anyone’ permission to levy an aid from his free men save for the ransom of his body, the knighting of his eldest son and the marrying on one occasion of his eldest daughter. The aid was also to be ‘reasonable’. The chapter referred to ‘anyone’ probably out of recognition that some major knights might seek aids from their tenants, but the main target was undoubtedly the baron. Indeed, in the Articles of the Barons, the equivalent chapter (6) simply stated that ‘the king will not allow any baron to take an aid from his free men’ save on the three specified occasions. The chapter in Magna Carta promised major gains for under-tenants.76 John had frequently ordered them to give aids to their lords on other than the Charter’s specified occasions, notably to help pay their lord’s debts to the crown.77 There is some evidence of the ill feeling thus created. When William de Mowbray sought to levy an aid to pay his debts, the religious houses holding from him protested.78 In 1206 or 1207 the tenants of Robert de Mortimer refused to pay an aid to sustain him ‘in the king’s service in Poitou’. Aids, they said, had only been customary for themselves and their ancestors on three occasions.79 Since these were the very occasions later permitted in the Charter, under-tenants were evidently well aware of their rights.
Chapter 15 in the Charter did not merely restrict the instances on which aids could be levied. It also implied that, without permission from the king, lords could not impose aids even on the three customary occasions. This was very different from the situation inGlanvill, where lords were allowed to levy aids without royal sanction, even for making war, provided they had the consent of their courts. Lords, under John, often secured writs from the king in order to facilitate the levying of an aid. Now, without such writs, they were not to levy aids at all.80 At the behest of under-tenants, the Charter seemed to be weakening the lord’s authority over his fee.
Chapter 16 was also designed to benefit under-tenants. It laid down that ‘no one’ was to be distrained to do more than the service due either ‘for the fee of a knight, or for another free tenement’. The position of this chapter, right after chapter 15, and its phraseology – ‘fee of a knight’, ‘free tenement’ – suggest that its main beneficiaries were intended to be knights and free tenants who were being forced to perform other than customary services by their lords or the king.81 The scope of the chapter, moreover, was widened during the negotiations at Runnymede, since ‘another free tenement’ does not appear in the Articles of the Barons. Its inclusion meant that the large numbers of free tenants who held by rent rather than by knight service were now included among the beneficiaries. The Charter does not specify the kinds of extra services that lords might demand, but they probably included military service and scutage, about which there is considerable evidence of dispute over what was due.82 An issue that became important in the reign of Henry III was that of attendance at private courts. It was the subject of major legislation in 1259 and may already have been a grievance in 1215.83 That chapter 38 of Magna Carta prevented bailiffs in general (they were nor specified as those of the king) from putting people on trial on their own unsupported allegations suggests tensions over the running of private courts. A related grievance was that of the amercements levied in private courts, often for non-attendance. Here chapter 20 of the Charter was relevant, for it dealt with amercements in general and thus protected free men (although not villeins) from unjust amercements levied in the courts of lords as well as those of the king. When a writ was introduced in the 1260s enabling legal actions to be brought under the terms of the chapter, private courts were the target.84
Between chapter 16 on the service due from fees and other free tenements, and chapter 20 on amercements, came chapters 17 to 19 on the common pleas. More than any other chapters of the Charter, they reveal a society far from dominated by great lords. Were modern historians to have a go at drafting the Charter without knowledge of its contents, they might well conceive a clause preventing the common-law actions encroaching on the courts of lords. The chapter would thus have paralleled chapter 34, which restricted the issue of the writ ‘precipe’ if it had that effect. That barons would have liked such a chapter is suggested by a striking passage in the Anonymous of Béthune. This has John agreeing in 1215 that the barons could have ‘all high jurisdiction [hautes justices] in their lands’. The king, in fact, had agreed no such thing. The point is that the Anonymous, so close to baronial feeling, thought that he had or should. It is unlikely that the barons in 1215 were hoping for ‘high jurisdiction’ in the sense of establishing control over all criminal justice. That was never on the agenda. What they hoped to do was to protect their courts and jurisdictions from the challenges of the common law.85
The detail of the common-law procedures which generated this ambition will be explained in the next chapter. Here it is enough to say that they were hugely popular with knights and free tenants, who were their chief users and beneficiaries, and who, sitting on the juries, actually decided the cases. Much of the litigation was between social equals, often over small properties, but the procedures had the potential to take cases from the court of the lord into the court of the king, as well as weakening the lord’s power over his tenants more generally. Yet the Charter, instead of trying to restrict their use, made the procedures more available. Chapter 17 thus did not allow such pleas to ‘follow’ the king’s court, and insisted they be heard in a fixed place. Chapter 18 laid down that the king’s judges were to come to each county four times a year to hear the most popular of the assizes. The procedures were also, as we have seen, made subject to local control, by stipulating that the judges were to sit with four knights elected in the county court.
At the end of the Charter, its benefits seemed finally spread over all society. Chapter 60, as we have seen, stated that all men were to pass down to their own men the concessions which they had received from the king. The ‘all men’, of course, as the king made clear in 1234, were essentially the lay and ecclesiastical magnates of the kingdom. Under the terms of the Charter, they had thus to obey, within their fees, the chapters on relief, wardships, the marriages of heirs and the rights of widows. It was with a sure political eye that the government of Henry III constantly reminded his magnates of this chapter. It was the one that gave the Charter value to under-tenants.86
Knights and under-tenants, therefore, were able to make gains from the Charter, sometimes to the disadvantage of their lords. Yet the Charter was also very much shaped by lords, anxious to affirm their authority over their tenants. Chapter 60 itself implied that under-tenants were less subject to royal authority than the men of the king, and were dependent on their lords for the full enjoyment of the Charter. Chapter 26 also testified to the control that lords expected to have over their fees. Here, if a tenant-in-chief died, leaving a widow and children, the sheriff was prevented from seizing his chattels on the pretext of debts owed the crown. No similar protection was offered on the death of an under-tenant. This was because, when an under-tenant died, it was the lord, not the sheriff, who had entry into the estate. Chapter after chapter in the Charter was designed to protect the interest of what it called ‘the lord of the fee’. Thus chapter 8 stipulated that a widow could not marry without ‘the assent of her lord from whom she holds’, if she held from other than the king. Chapter 11 laid down that during minorities, debts were to be paid to Jews ‘saving the service of the lords’. Chapter 32 ensured the ‘lords of the fees’ should recover the lands of their tenants convicted of felony after the king had held them ‘for one year and one day’. Chapter 34 prevented the king, at the request of litigants, from removing cases from the courts of ‘magnates’ (as a later description of the clause put it) through the issue of the writ of ‘precipe’. In chapter 53 John also promised to give justice, when he returned from or abandoned his prospective crusade, where ‘the lord of the fee’ was claiming rights over an abbey founded on his fee. This was linked to chapter 46, which ensured that all barons should have custody of the abbeys of their foundation when they were vacant.87 Chapters 37 and 53 tried to deal with the issue of encroachments by the king on the rights of wardship, while chapter 10 helped lords exploit more freely estates so held. Under this chapter, debts owed the Jews were no longer to gather interest during minorities, whether the heir held from the king or anyone else. Lords wanted the provision because, if they had an heir in wardship, they were bound pay his debts. Thus, in 1213, Roger Bigod, earl of Norfolk, one of the twenty-five barons, had to pay £20 towards the Jewish debts of the heirs of William de Pirnhow.88 The chapter only benefited the heir himself if the lord did fail to pay. Then, under its terms, the heir would no longer be hit, on coming of age, by all the interest. The chapter thus againsuggests tension between lord and tenant. Just as the Charter was an instrument of lordship to discipline the unfree peasantry, so equally it was an instrument of lordship to control the fee. That continued to be the case in later versions of the Charter, as we will see.89
Lords thus protected themselves and their fees by what they put into the Charter. They also did so by what they left out. It is often said, and rightly, that Magna Carta owed a great deal to the 1100 Coronation Charter of Henry I. Yet the contrast between the way the two charters deal with the interests of under-tenants is striking. In his regulations on relief, wardships and the marriage of heirs and widows, Henry I insisted twice over that his barons should make equivalent concessions to their men.90 There was nothing of that kind in Magna Carta, the tenants of barons having to rely on the blanket provision on passing down the concessions in chapter 60. The £5 relief for a knight’s fee in chapter 2 was simply for tenants-in-chief. Although there is some indication that a £5 relief for a knight’s fee was the accepted figure for under-tenants before 1215, enshrining it in Magna Carta would have made the custom all the stronger. The fact that the £5 relief appears in the Cheshire Magna Carta shows that under-tenants felt the need for such protection.91They would also have valued the Charter making clear that its provisions on wardships applied to lords as well as the king. It was left to the 1275 Statute of Westminster to do that.92
There is an equally extraordinary contrast between Magna Carta and Henry II’s 1176 Assize of Northampton. This gave protection to the free tenant by laying down that on his death, his heirs should remain in possession of his fee, and have his chattels to carry out his will. If the heir was underage, he was to do homage to the lord, thus safeguarding his eventual entry into the inheritance.93 None of these provisions surfaced in Magna Carta. Indeed, chapter 26, which did something to preserve the chattels of a deceased lord for the execution of his will, was quite specifically limited to tenants-in-chief. We can be pretty sure that there were demands for the Charter to give more to under-tenants in these areas, for the version of 1216 did just that.94 There were other omissions in Magna Carta. In chapter 29, knights were only protected when the king, not when their lords, sought to impose a double dose of castle guard and army service. In chapter 31, it was only the king who was prevented from seizing wood for a castle or for other business. Likewise, in chapter 37 it was only those who held by socage and other rents from the king who were protected from claims to wardship, not those who held in the same way from tenants-in-chief. In 1221 Henry, earl of Warwick, found himself sued for trying to assert rights of wardship over an heir who held from him in socage. He lost the case, but no thanks to Magna Carta.95 There was also a telling change made to the end of chapter 37 as between the Articles of the Barons and Magna Carta. In the former the equivalent chapter (27) had protected free men from losing the privileges of knighthood because they held any land from the crown by non-knightly service. In Magna Carta this clause was scrapped in favour of protecting not the tenants but the lords. They were not to lose their rights of wardship over such men.
The omissions are equally striking when it comes to the inquiry into local government by the twelve knights in each county, commissioned in chapter 48. There were precedents for such inquiries. In 1170 Henry II had mounted one, called by historians the ‘Inquest of Sheriffs’. Despite its name, it inquired not merely into illicit exactions of the sheriffs but also into those of the earls, barons and knights. Did Magna Carta follow this precedent? No, it did not. Its inquiry in chapter 48 was simply into the ‘evil customs’ of the ministers of the king. The security clause was similarly limited. It dealt with breaches of the Charter by the king. No procedure was laid down for dealing with breaches by the barons themselves, although they too, of course, under chapter 60, were supposed to obey the Charter. In much the same way, when we get to the Charter of 1217, chapter 42 sought to prevent shrieval extortion at the hundred court. Nothing was said about the extortions of the bailiffs when such courts were controlled by lords, as was often the case.96
Again this background, it hardly comes as a surprise that, under chapters 12 and 14 of the Charter, the assembly called on to give the kingdom’s consent to taxation, in the form of scutages and aids, was one composed entirely of tenants-in-chief. The earls, greater barons, bishops and abbots, as we have seen, were to receive individual summonses. The rest of the tenants-in-chief were to be summoned generally through the sheriffs. It is true that the control over scutage met a particular grievance of under-tenants, since it was from them that great lords recouped, or tried to recoup, what they owed the king. Knights also had a potential voice in the tax granting assemblies themselves since they would have featured among the few hundred lesser tenants-in-chief summoned through the sheriffs. Although there was a long precedent for the summoning of such tenants, the confirmation of their presence in the Charter constituted a knightly victory.97 It was a precursor to the formal summons to parliament of knights representing the counties. Yet precursor was all it was. Those summoned under Magna Carta were solely the lesser tenants-in-chief of the crown. They came for themselves. They had no representative function. The thousands of other knights and free tenants in the counties, just like the burgesses in the towns and the magnates who did not hold from the crown, were completely unrepresented in the assembly envisaged in 1215. It could have been different. Indeed, knights may well have demanded that it should be different. After all, an early thirteenth-century account of King Arthur, written by the poet Lawman in English for a knightly audience, has him summoning to his assembly at Caerleon in south Wales ‘the knights and all the free men who were in the land at all’ as well, of course, as the bishops, earls and barons.98 In 1213 John himself summoned four knights from every county to come before him at Oxford ‘to discuss with us the affairs of our kingdom’.99 He had already summoned to the Oxford council both his barons and groups of knights from each county. Almost certainly the latter were his knightly tenants-in-chief. He was now reaching out to a wider constituency and creating a more representative assembly. It was an example the barons in 1215 conspicuously failed to follow. In the Charter itself, the counties were to elect knights to sit with the king’s judges and hold the inquiry into local government. Why not also have the counties elect knights as representatives at national assemblies? But if these were blocks from which knightly attendance at such meetings might have been constructed, they were left in the builder’s yard. It was to be different in the next great crisis that shook England. In 1258 the knights inquired into the malpractices of both king and lords. In 1259 the legislation dealt first of all with the way lords had forced men to attend their courts. In 1265 Simon de Montfort summoned both knights from the counties and burgesses from the towns to his parliament.