Post-classical history

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8

Standards of Judgement

In general terms, John’s government was considered extortionate and unjust. But what were the contemporary standards that informed and validated this judgement? When I first lectured on Magna Carta, I used to say that it was bereft of political ideas. I was right in that it has no long prologue justifying the restrictions it was placing on the king. Yet, in other respects, I was quite wrong, since ideas of law, justice, judgement, custom, counsel, consent and reasonable conduct run through the Charter like the shells in a shaft of Purbeck marble.

THE IDEAS IN THE CHARTER

At first sight, it was individuals, alone and defenceless, who benefited from the Charter. Its concessions, after all, were granted to individuals, ‘to all … free men’. Yet these men were part of and protected by a wider entity: the kingdom.1 The word ‘kingdom’ – ‘regnum’ – appears twenty-one times in the Charter and is fundamental to it. The kingdom was a physical, geographical entity that one could enter, exit and travel within. If the king left it, the chief justiciar took over its government. Within it there was to be one measure for cloth, food and drink.2 The kingdom was also a living entity that possessed its own law – the ‘lex regni’ – and could give its common consent to taxation.3 Things could be done for its harm and also for its ‘reform’ and ‘utility’.4 The kingdom possessed its own people. The free men to whom the Charter was granted were not so isolated after all; they were the free men of ‘our kingdom’, just as the barons were the barons of the kingdom.5

At the end of the Charter, in chapter 60, John declared that his concessions were to be held ‘in our kingdom’. This avoided saying that they were to be held ‘by’ the kingdom but came close to it. In fact, that was very quickly how the Charter was regarded. The Dunstable annalist called it a Charter ‘concerning the liberties of the kingdom of England’.6 On the back of the Lincoln original, it is described in a contemporary hand as a ‘Concord between King John and the Barons’ achieved by ‘the concession of the liberties of the church and the kingdom of England’. Henry III himself in 1255 wrote of ‘Magna Carta’ as being ‘about the liberties conceded to the generality [universitas] of England’.7

John claimed throughout the Charter that the kingdom was ‘his’ kingdom. Indeed that seemed inherent in the very word ‘kingdom’. Yet the Charter testified powerfully to the view that the kingdom had been harmed by the king and was now extracting the much needed ‘reform’ – ‘emendatio’ – from him. Some translations of the Charter seem to capture this sense of the kingdom apart from the king by rendering ‘regnum’ not as ‘kingdom’ but as ‘realm’.8 This foreshadows the universal translation of the ‘communitas regni’, which ranged itself against John’s son, Henry III, as ‘community of the realm’ rather than ‘community of the kingdom’. ‘Realm’ has some contemporary warrant. When the Coronation Charter of Henry I was translated into French in John’s reign, ‘regnum’ appears as ‘reaume’, the word from which the English ‘realm’ derives.9 ‘Reaume’ is also found in French translations of the 1225 Charter.10 There are, however, problems. There is no indication in John’s reign that ‘reaume’ – ‘realm’ – carried the nuances with which it is invested in ‘the community of the realm’. Rather it seems synonymous with another French word, ‘regne’, the English equivalent of kingdom. It is ‘regne’ not ‘reaume’ that appears throughout the French translation of Magna Carta probably made in 1215 itself. Apart from one appearance of ‘reaume’, ‘regne’ is also found throughout a later French translation.11 ‘Kingdom’ has, therefore, been preferred in the translation given in this book.

The Charter, however, certainly had a word that indicated a political entity, similar to the kingdom but separate from the king. The word was ‘land’. ‘Land’ appears ten times in the Charter. In chapter 41 it is innocuous. It speaks of the treatment of merchants ‘in our land’, rather than kingdom, so as to balance merchants from lands that might be at war with the king, the point being that not all such merchants necessarily belonged to kingdoms. Elsewhere, however, the use of ‘land’ in the Charter carries a high political charge. It comes in the most aggressive clauses in the Charter where the king is being coerced and his arbitrary conduct challenged. It is thus the ‘commune of all the land’, formed by a universal oath, that is to aid the twenty-five barons of the security clause in keeping John to his promises, not the ‘commune of the kingdom’. John is to proceed against free men only by lawful judgement of their peers or ‘the law of the land’. He is to forgive all fines made unjustly ‘and against the law of the land’.12 Moreover his officials, under chapter 42 of the Articles of the Barons, are to know ‘the law of the land’ and mean to observe it. John managed to get ‘land’ here changed in Magna Carta (chapter 45) to ‘kingdom’, but in the contemporary French translation this is the one place where ‘regnum’ does not become ‘regne’. Instead it appears as ‘land’ – ‘la terre’. Either the translator sensed the intention of the Articles or he was working from an engrossment where the change had not been made.13 The point in all these cases was to assert that there was an entity coterminous with the kingdom but separate and in a way older than it. There is no indication that the land is the king’s. The implication is rather that the land, the elemental land, with its own law and people, had been there before kings and kingdoms. It was to this that everyone belonged when they formed the community of the land to enforce the Charter against the king.

The Charter also asserted something else, something so obvious that it is easy to forget its significance. The kingdom, the land, was England. This Englishness of the Charter is another of its chief characteristics. The Charter has fourteen references to England and three to the ‘English church’ – ‘Anglicana ecclesia’. Merchants are to be allowed to go ‘from England’, ‘into England’, ‘through England’. Fish weirs are to be removed from the rivers ‘through all England’. The kinsmen of Gerard d’Athée are no longer to hold office ‘in England’.14 England also possesses its own law, and its own barons, ‘our … barons of England’ as John puts it.15 It was but a small step to see the Charter as being granted, as Henry III later put it, to the ‘universitas of England’.

In the Charter, the choice of ‘England’, as opposed to ‘kingdom’ or ‘land’, is not pointed in the same way as is the choice between ‘kingdom’ and ‘land’. We hear of ‘the law of England’ in chapter 56 so as to distinguish it from ‘the law of Wales’. Yet the Englishness of the charter still reflected something of great importance against which John and his government were tested. By the early thirteenth century there remained an elite group of barons who had land in both England and Normandy.16 They are found both among John’s counsellors at the start of the Charter and among the twenty-five barons who were to enforce it. The earls of Pembroke, Warenne, Arundel, Clare and Hereford, and William de Mowbray and Robert de Ros, all fall into this category. Such men, before 1204, had travelled constantly back and forth across the Channel, much like the king. They were just as likely to have been born in Normandy as in England. In terms of their nationality, if and when they thought about it, this elite probably regarded themselves as Anglo-Norman. John himself had been born in England, but whether he felt English is doubtful. His brother Richard, like-wise born in England, certainly did not. ‘You English are too scrupulous,’ he once exclaimed, before threatening to send his mercenary captain, Mercadier, to sort someone out.17

By the early thirteenth century, this Anglo-Norman baronial elite were in a tiny minority. The great bulk of the political community of barons and knights were born and held their lands exclusively in England. England was their ‘land’. The strength of the English tide can be seen in the way the History of William Marshal tried to stress the Englishness of its hero.18 William was born in England, but he made his career on the continent and became a great Anglo-Norman baron. His son, the patron of the History, was born in Normandy, and for that reason led the Norman contingent at the battle of Lincoln in 1217. Yet a major theme of the History is how the Marshal, as a loyal ‘Englishman’ – ‘uns Engleis’ – saved England from the French invasion of 1216–17. When he becomes regent there is no better man ‘in England’. Before the battle of Lincoln he exhorts the army to defend ‘our land’ from the French. His ultimate demise is ‘bad for England’. The History also gloats at the hundred Frenchmen eaten by dogs, whom the English had killed between Winchester and Romsey during the 1215–17 civil war.19 To be sure, English national feeling, as revealed in the History, a work of the mid-1220s, was accentuated by civil war and the politics of Henry III’s minority.20 Such tensions were there, however, before 1215. As far back as 1189, the appointment of the Norman, William Longchamp, as Richard’s chancellor had been criticized on the grounds that he was an obscure foreigner.21 The Melrose chronicle’s accusation that John oppressed his subjects with foreign soldiers and gave patronage to aliens was made in or soon after 1218, and thus before the crises of Henry’s minority.22 The complaint that John was generous to foreigners and trusted more in aliens than his own people was made by the well-balanced Crowland chronicler.23 One may well believe Ralph of Coggeshall when he says that in 1214 the nobles of the kingdom grumbled when the alien, Peter des Roches, was appointed over them as justiciar. Under chapter 50 of the Charter John was to remove from office Peter’s countrymen, the Tourangeau relations of Gerard d’Athée. As the chapter said, heaving with emotion, ‘henceforth they shall hold no bailiwick in England’. In some of the engrossments of the Charter, there is no division between this chapter and the next, which removed from the country all ‘alien’ soldiers who had come ‘to the harm of the kingdom’. In the mind of the Charter, Gerard’s kin were equally aliens who had harmed the kingdom. The whole Englishness of the Charter set a standard by which John was found wanting.

The kingdom, the land, England, then, had possessions and could suffer harm. Of the possessions, by far the most important were law and custom. More than anything else it was these that should protect the people from harm. The ‘law of the kingdom’, the ‘law of the land’, and ‘the law of England’ appear six times in the Charter. No one was to be proceeded against save by judgement of their peers or the law of the land; those imprisoned and outlawed according to the law of the kingdom were not to be allowed back into the kingdom; officials were to know the law of the kingdom and mean to observe it; fines and amercements made unjustly and against the law of the land were to be quashed; disseisins suffered by the Welsh in England were to be judged by ‘the law of England’.24

The law of England was not a law laid down in legislation. As Glanvill declared, ‘the laws of England are not written’. Rather, they were the legal rules that governed the conduct of justice in the courts. When it came to the local courts of shire and hundred, these rules were so many and various that they could not, Glanvill thought, be written down. Other rules, however, worked out by the king’s judges or promulgated by the king in council, were ‘in frequent and general use throughout the kingdom’. It was these that formed the principal subject of Glanvill, and lay at the heart of the common law.25

Defined like this, there was not much distinction between law and custom. Indeed Glanvill was described as a treatise ‘on the laws and customs of the kingdom of England’. ‘Custom’ itself appears five times in the Charter, and on three occasions it is affirmed as ‘ancient’. Clearly the antiquity of the custom was thought to give it a special strength. Tenants-in-chief were thus to succeed on payment of ‘the ancient relief’, and be treated according to ‘the ancient custom of fees’. London was to have its ‘ancient liberties and free customs’, as were all other cities, boroughs, vills and ports. Merchants were to be allowed to buy and sell ‘according to ancient and right customs’. In addition, vills and men were not to build bridges save when obliged to do so ‘from ancient times and by law’. The counties were to be held at their ‘ancient farms’. Where lords were the patrons of abbeys through ‘ancient tenure’, they were to have custody of them during vacancies.26

Under the shelter of law and custom, men could expect above all ‘justice’. John thus promised not to deny, delay or sell justice, and to give ‘full justice’ on several issues when he returned from or abandoned his prospective crusade.27 Justice was itself closely linked to ‘judgement’, which makes twelve appearances in the Charter, on seven occasions as judgement by peers.28 It was by something closely akin to judgement, ‘arbitrium’, that the twenty-five barons of the security clause were to decide whether John had put right his transgressions and breaches of the Charter.

There was another key idea that informed much of the Charter: the idea that exactions should be ‘reasonable’. In the case of wardships, in chapter 4, custodians were only to exact ‘reasonable issues and reasonable customs and reasonable services’. In chapters 12 and 15, aids imposed on the kingdom and on under-tenants were to be ‘reasonable’. Knights, in chapter 29, were to be allowed to send substitutes to perform castle guard if they could show ‘a reasonable cause’. Although the word itself was not used, when chapter 20 laid down that amercements should match the means of the offender and the nature of the offence, it was in effect calling for them to be ‘reasonable’. If all this was obeyed, what individuals above all should enjoy were their ‘rights’. At the start of the Charter, the church was to have its ‘rights in whole’. Later chapters (52, 53 and 59) addressed the grievances of those, including the king of Scotland, whom John had deprived of their rights. In chapter 40 John promised to deny no one ‘right or justice’.

Magna Carta, therefore, was full of ideas about the standards that John should meet. Those standards, however, did not apply to the king’s subjects in the same way and in the same measure. At its broadest, the king promised justice to everyone. Some of his concessions in the areas of local government would indeed have lightened the burdens on all his subjects. Yet there was a fundamental difference between what was available to the free and the unfree. The king offered his justice to the former in their disputes over rights and property, but not to the latter. There was also a fundamental difference when it came to the king’s tenants-in-chief. With these men, the king had a unique relationship. It was founded on the mutual bond between lord and tenant, in which, asGlanvill put it, ‘the lord owes as much to the man on account of lordship as the man owes to the lord on account of homage, save only reverence’.29 The Charter applied ideas of ancient custom and reasonable practice to the ingredients of the relationship, so to relief, wardships and marriages. It also testified, in its chapter on taxation, to the counsel that was owed by tenants to their lord. The Charter, therefore, set standards for John as both king and lord. It was because he had failed as both that Magna Carta was necessary.

THE ORIGINS OF THE IDEAS

Many of the basic concepts in Magna Carta were very old, and part of a general European inheritance. In the Bible, where Saul was only one example of a tyrannical king, judgement and justice were frequently linked together:

Behold the days come, saith the Lord, that I will raise unto David a just branch, and a king shall reign and will be wise, and shall execute judgement and justice in the land.

So ran Jeremiah 23:5. Such ideas were elaborated in a long tradition of thought stretching back to Augustine and to Gregory the Great. The maxim, ‘the king is so named from acting justly’ – ‘rex a recte agendo vocatur’ – often quoted in the twelfth and thirteenth centuries, came from Isidore of Seville (560–636). To read Janet Nelson’s study of ‘bad kingship’ in the early Middle Ages is to enter an ideological world very similar to that of England in the early thirteenth century.30 Thus the later Carolingian kings were accused, like King John, of being arbitrary, wilful and tyrannical. They had deprived men of their property ‘against the law’ and had aggressively and inventively extorted their wealth; all this instead of acting justly and reasonably, for the ‘utility’ of their subjects, by the ‘common counsel’ of their ‘faithful men’. In the eleventh century King Conrad II of Germany protected knights from arbitrary disseisin by laying down that they were not to be deprived of their lands ‘save according to the constitution of our ancestors and the judgement of their peers’.31 The principle of judgement by peers, when it appeared in chapter 39 of the Charter, was, therefore, centuries old.

As for the mutual obligations involved in lordship, these were set out very fully in the early eleventh century by Fulbert of Chartres in a letter to the duke of Aquitaine. The ‘faithful man’ – ‘fidelis’ – to be worthy of what he held from his lord, had to display loyalty in a whole series of ways, ‘and the lord in all these matters should behave in the same way towards his fidelis’. Both would be equally ‘perfidious and perjured’ if they failed in their obligations.32 Fulbert’s ideas too had deep roots, being influenced by the writings of Isidore of Seville, Archbishop Hincmar of Rheims (806–82) and Carolingian capitularies.33 The ideas also had a long future. Around 1200 Fulbert’s letter was inserted into a mid-twelfth-century Lombard compilation known as ‘The Book of Fees’, which in turn was incorporated, in the thirteenth century, into the fundamental statement of Roman law known as the ‘Corpus Iuris Civilis’.34

England had long been part of these wider European developments. A key standard by which kings could be judged was the oath they swore at their coronations. This had appeared for the first time in West Frankia in 877, and was introduced a century later in England for the coronation of Edgar in c. 960 or 973.35 In essence the oath bound the king to protect the church, maintain the peace and give justice, and it was easy to think that John had not done that. Indeed, when he was reconciled to the church and his excommunication was lifted in 1213, John had to renew his oath.36 There were also the standards that kings set themselves in charters which they issued at the time of their coronations. It has been plausibly argued that the Coronation Charter of King Cnut is preserved in one of his law codes. It covers the malpractices of local officials, the rates of heriot (different from but in some ways akin to relief) and the right of ‘widows and maidens’ not to be forced into marriage. ‘The journey towards Runnymede’ had already begun.37

The journey had gone a lot further by the time of the 1100 Coronation Charter of Henry I. Henry’s Charter became very well known, and, as we will see, was paraded before King John in 1214–15. Indeed, so as to be more accessible to the secular aristocracy, around that time it was translated into French.38 The charter showed how old ideas about lordship had become channelled into the new tenurial structures created by the Norman Conquest. The Conquest had created a society in which all land was held from the king by his tenants-in-chief with attendant rights and obligations.39 Thus the Coronation Charter, after a first chapter, like Magna Carta, on the church, went on to regulate the relationship between the king and the barons, earls and others ‘who held’ from him, thus dealing with the levying of relief, and the treatment of wardships, marriages and widows. In all this it anticipated Magna Carta.

The political unit governed by the 1100 Coronation Charter is the ‘regnum’ – ‘the kingdom’ – just as it is in Magna Carta. The word appears six times in what is a short Charter of only fourteen clauses. Sometimes it is the king’s kingdom, ‘my kingdom’, but twice it is ‘the kingdom of England’, in a sense separate from the king. It is thus ‘the kingdom of England’ that has been oppressed by the unjust exactions of Henry I’s predecessor, William Rufus. The 1100 Charter was equally clear about the standards that should obtain in the kingdom. It makes three references to ‘right’ – ‘rectum’ – and seven to ‘justice’ – ‘justicia’. Things ‘unjust’ and done ‘unjustly’ in the past were to be ‘just’ and done ‘justly’ in the future. The Coronation Charter does not refer to ‘judgement’, unlike Magna Carta, but ‘judgement by peers’ was as well known in England as it was in Germany. It appeared both in Henry I’s treaty with the count of Flanders in 1101 and in a legal work from his reign, known as ‘The Laws of Henry I’. The latter added that the peers were to be from ‘the same province’ as the person judged, thus anticipating Magna Carta’s demand that amercements should be imposed by ‘upright men of the neighbourhood’.40 The Coronation Charter makes no reference to ‘reasonable’ exactions, but the idea underlay the stipulation that penalties should be ‘according to the nature of the offence’. Most striking of all was the emphasis in the 1100 Charter on the king ruling with counsel. Henry thus promised to give heiresses in marriage and retain forests in his hands with ‘the counsel’ or ‘common counsel’ of his barons. Indeed, he had come to the throne, ‘by the common counsel of the barons of all the kingdom of England’. There was, therefore, no conceptual step involved when Magna Carta demanded that taxation should only be levied ‘by the common counsel of the kingdom’.41 Indeed, had not John’s resistance been stronger, the Charter might well have demanded such counsel across a broader range of issues.

In the final promise of his Coronation Charter, Henry I said that he would maintain the laws of Edward the Confessor along with the changes made by William the Conqueror ‘by the counsel of his barons’. In fact, there were no written laws of Edward, and the promise, if it had any reality, meant simply that Henry would maintain the laws and customs which were thought to have operated in Edward’s time. Around the middle of the twelfth century, however, someone decided to make up for this lack, and produced a work of thirty-five chapters entitled the Leges Edwardi Confessoris (The Laws of Edward the Confessor). This was quickly accepted as the real thing, and the work became popular. Alongside the Coronation Charter of Henry I, it was flourished in John’s face and became therefore another standard by which his kingship was judged.

The importance of the Leges Edwardi was not in the precise and sometimes archaic procedures that they described for maintaining the king’s peace. Rather, it lay in reinforcing the picture, however apocryphal in the case of William the Conqueror, of a king ruling with the counsel and consent of his people, and indeed accepting the law as they defined it. Thus at the start of the Leges Edwardi we hear how King William ‘by the counsel of his barons’ summoned ‘from all the counties of the country English nobles’ so that he could learn their customs. These he finally accepted ‘by the counsel and at the request of the barons’. William seems here to be taking the advice of a baronial assembly, but actually the Leges Edwardi also showed something else of relevance to 1215, namely that the political community, by which the king should be guided, was not simply a baronial one. Having described the convening of the English nobles on the advice of his barons, the Leges Edwardi set out a second stage in the procedure. Twelve men were to be ‘chosen from each county of the entire country, to declare on oath their laws and customs’.42 The parallel is obvious with chapter 48 of Magna Carta, in which twelve sworn knights are to be elected in each county to investigate and abolish ‘all evil customs’. There is also a link here with the 1100 Charter, for that taught the same lesson about the breadth of the political community. Henry thus made direct concessions to the ‘knights’ when it came to the payment of the geld, and twice insisted that the barons pass on what they were getting from him to their own men.43

KING ARTHUR AND HIS KNIGHTS

In the second half of the twelfth century these ideas about good kingship were to be supported, invigorated and elaborated by momentous developments in European literature and learning. Around 1140 Geoffrey of Monmouth published his History of the Kings of Britain. The work virtually invented King Arthur and was a phenomenal success. It was translated by the poet Wace from the original Latin into French verse, and thus made more accessible to the secular nobility. It inspired the romances of Chrétien de Troyes. Its impact at the highest level is shown by the way John’s nephew was named Arthur. In England, knowledge of Arthur also reached down to the level of knightly society. One of the most remarkable works produced in John’s reign, or soon after, is a translation of Wace into English by the poet Lawman. One manuscript says that Lawman lived at Areley in Worcestershire ‘with the good knight’, which gives the best indication of the audience for which the work was produced.44

The trouble with Arthur was that he set impossible standards for kings.45 He conquers much of Europe and performs many individual deeds of derring-do. He is open handed in gifts of land, gold and silver to his knights. He is also, especially in Lawman, a consensual ruler with a real concern for law, justice and the welfare of his people. Far more than in Geoffrey of Monmouth or in Wace, Lawman’s Arthur reaches out to the men of the shires, summoning to his great assembly at Caerleon earls, bishops, knights and ‘all the free men who were in the land at all’. Indeed, in protecting ‘God’s people’, Arthur orders ‘all the knights to give just decisions’, although being very clear that the tillers of the soil must stick to their work! Arthur is also distinguished for his humanity: he blushes red and white with emotion when hearing of the death of his father. And though a fierce punisher of traitors and criminals, he is also merciful, summoning back those, ‘whether great or mean’, who have forfeited their lands, so that they can ‘have their own again’.46

How could John, of all people, measure up to this standard? Of course, everyone knew that the chivalric ideal was an impossible dream. There was no ‘world of limitless kingly wealth’, where treasuries emptied by giving could quickly be replenished by the riches from further conquests, so that generosity and bravery chimed together.47 The History of William Marshal wrestled with the problem in the case of Henry the ‘Young King’, the eldest son of Henry II. In imitation of Capetian practice, the Young King had been crowned king in 1170 during his father’s lifetime, but this hardly moderated his irresponsibility. His open-handed generosity left behind a trail of debts that the more prudent William Marshal, as his leading knight, had to settle. Yet in the end the Young King still seemed to epitomize all the virtues of ‘chivalry’. Recording his death (in 1183), the History lamented the end of the ‘courtesy, prowess, debonaireté, and largesse’ that had dwelt in his heart.48 John did try. He could be courteous. He could give. But there was always something false and calculating about it. And no one could say John had much ‘debonaireté’ about him, that calm, charm and good cheer which was the opposite of anger.49

What made this worse was the example of King Richard. He had been everything a king should be when it came to prowess. John certainly could act in war with both dash and determination. He showed the former at Mirebeau in 1202, the latter during the long siege of Rochester in 1215. But he was never credited with feats of personal gallantry. To describe him as ‘softsword’ after the Peace of Le Goulet in 1200 was unfair, for there was much to be said for the settlement, but the description had an element of truth.50In both 1203, faced with the loss of Normandy, and in 1216, faced with Prince Louis’s invasion, he seems to have lost his nerve. Richard, when he wanted, could also be the epitome of courtesy and debonaireté. When the garrison of Nottingham surrendered to him in 1194, it feared punishment in life or limb. Instead Richard, ‘compassionate, gentle and full of mercy’, set a fair ransom on their heads. The Marshal History commented:

the more a worthy man [prusdom] has the advantage,

the more he should show his worth by desisting

from doing harm and from acts of cruelty.

That was Richard. On the other hand:

… when a bad man has the advantage,

cruelty and outrage are the consequences.

That obviously was John. He was a ‘malveis home’ (bad man), not a ‘prusdom’ (worthy man).51

There was here a wider context. The garrison at Nottingham feared for their lives. Everyone accepted that the penalty for breaking faith with one’s lord could be corporal, the loss of life or limb. Yet, whatever the theory, nobles were rarely killed in battle or, if captured, executed for treason. Warfare and politics from the corporal point of view were fail-safe. Armour prevented nobles being killed in the normal course of fighting. When unable to fight on, the convention was to offer to surrender, and surrenders were nearly always accepted. One reason for that was the prospect of ransom; a captured lord was worthless dead, but worth a great deal alive. Another reason was that nobles simply were not killed for political crimes. They were imprisoned or disinherited, although often only temporarily. But they were very rarely executed. Here the reasons were partly chivalric – the ‘courtesy’ due to a conquered opponent – and partly pragmatic, growing from the conditions of the Anglo-Norman realm.52 There was little point executing a great noble in England when that might stir up revolt among his kin in Normandy or elsewhere on the continent. Henry I, after capturing his elder brother Robert in 1106, kept him thereafter in comfortable confinement. The Dialogus de Scaccario noted with admiration how few of those who rebelled against Henry II in 1173–4 suffered loss of possessions, and none lost their rank or life. It was much the same in 1194.53 John’s cruelty to prisoners, and his murders of Arthur and Matilda and William de Briouze junior, thus seemed completely outside the conventions of the age.

ACADEMIC THOUGHT: THE ‘IUS COMMUNE’ AND THE STUDY OF THE BIBLE

Alongside the flourishing of chivalric literature, there were the momentous developments in academic learning. At their centre was the systematic study of canon and Roman law: the blend of the two was called the ‘ius commune’. The foundation for study of the canon law was Gratian’s Decretum, or Concordance of Discordant Canons, which was published in Bologna around 1140. The foundations of Roman law were the great legal collections of the Emperor Justininian, his Digest, Code and Institutes. In pursuit of the new learning, many Englishmen went abroad to the emerging universities of Bologna and Paris. The new learning could also, by the end of the century, be found at schools in England, at Oxford, Lincoln, Northampton and elsewhere. One of the most popular works of Roman law, a cheap summary of the Digest and Code for poor students, hence its title, The Book of Poor Men (Liber Pauperum), was written by Vacarius, who had come from Bologna to teach in England in the 1140s.54 Virtually all the mantras about law and custom, justice and judgement, counsel and consent, reason and rationality, could be supported from texts in both canon and Roman law.

Within this context one work was particularly influential, the Policraticus, written by John of Salisbury, who was a friend and counsellor of Thomas Becket and who finished his career as bishop of Chartres. John portrayed the state as an organism, indeed as a human body, governed by reason. The prince was a ruler who upheld the laws and liberty of the people. The tyrant was a ruler who trampled on the law and oppressed the people.55 None of these ideas were new, but the Policraticus gave them wide publicity. Their influence can be seen in the allegation of the Waverley abbey chronicle that under John ‘instead of law there was tyrannical will’. The accusation of tyranny and lawlessness is equally found in the chronicles of Crowland, Margam and Melrose.56

In the hierarchy of academic life, at the very summit stood the study of theology, which meant above all the study of the Bible. Central to this work was the circle of the great Paris theologian Peter the Chanter, of which John’s archbishop of Canterbury, Stephen Langton, was part. Langton’s own views are revealed in his sermons, and his commentaries on the Bible.57 Like those of the circle in general, they frequently touched on day to day questions of social and political life. When, therefore, Langton’s diocesan statutes in 1213–14 prohibited the receiving of bribes for the deferral or acceleration of justice, he was doing more than merely reiterating what was found in earlier ecclesiastical legislation. He would have had in mind the discussion in Peter’s circle, which condemned thetaking of bribes but acknowledged that judges needed to be properly paid, the kind of sensible balance typical of the school, and of Langton himself.58

We will question later whether Langton played a direct part in the evolution of the opposition programme in 1214–15, but he certainly believed in the Charter, and, once it was promulgated, did all he could to support it. Langton believed in royal power. It was necessary to protect the church and give peace to the people.59 In origin, however, royal power was not divinely ordained. Unless exercised within prescribed limits it could be oppressive. God, Langton noted in his commentaries on Deuteronomy, had warned the people of Israel against having a king. ‘Tyrannical exactions’ lay in store if they insisted. Langton also stigmatized ‘modern kings, who collect treasure not in order that they may sustain necessity, but to satiate their cupidity’. Demands that went ‘beyond necessity’ were ‘evil’.60 Langton had given thought about how to keep kings in check. In his commentaries, again on Deuteronomy, he commended the injunction that kings should secure an exemplar of the law from the priests and read it assiduously.61 Another gloss, from a commentator in Langton’s circle, explained that the prophet Samuel:

announced the law of the kingdom, that is to say what [the king] ought to exact from his people, and what the latter ought to give him, and he laid down this charter [ipsam scripturam] before the lord, that is to say in a holy place, in order that if the king came to demand more from his subjects, he would be condemned by this charter.62

The parallels with Magna Carta seem very clear.

ENGLAND: THE LESSONS TO BE LEARNT FROM ROYAL GOVERNMENT

Ideas about good rule did not merely come from chivalric literature and academic thought. In England they were also inculcated by the king himself. Henry II and his sons proclaimed their concern for the welfare of the kingdom. They said they had acted with counsel and consent. They demanded that their subjects, in their disputes with one another, should act justly and with judgement. They insisted, in all kinds of contexts, that things should accord with ‘reason’ and ‘the custom of the kingdom’. At the very start of his reign, John abolished the fees that Richard’s chancery had demanded ‘more by will rather than by reason’.63

Both Glanvill and the Dialogus de Scaccario make many statements about law and custom that anticipate chapters in Magna Carta. This is true of the £5 relief for a knight’s fee;64 the forbidding of relief when land had been in wardship;65 the stipulation that land in wardship should be returned ‘stocked’;66 the protection offered to widows over obtaining their dowers and share of their husband’s chattels;67 the regulations on distraint and sureties;68 the injunction that aids should be ‘reasonable’;69 and the ideas about amercements matching the offence (‘delictum’), and not destroying the transgressor’s ‘contenementum’.70 A proclamation by King Richard in 1190, meanwhile, foreshadowed the Charter’s provision about Jewish debts not gathering interest during minorities. A concession by John foreshadowed its limitation of the king to the principal sum when Jewish debts came into his hands.71 The theory and sometimes the practice of summoning national assemblies before 1215 laid the foundations for the Charter’s chapter on the subject.72 Many government measures and pronouncements envisaged a kingdom of England with its own people and laws, whose safety and ‘common utility’ needed to be considered.73

In all this, one powerful instructor was the assize of novel disseisin, which developed in the years after 1166. The key question for the jury was whether the complainant had been disseised of property ‘unjustly and without judgement’. Large numbers of knights and free tenants were using the assize. They also staffed the juries deciding the cases. The idea that the king himself should act up to the principles of the assize and disseize no one without judgement was inescapable. Essentially, what happened in 1215 was that the kingdom turned around and told the king to obey his own rules.

IMPACT

There is plenty of evidence that the ideas just discussed influenced attitudes and actions. While the substance of the law set out by Glanvill was indigenous, the way it was categorized and described was influenced by Roman examples, for example in the division between criminal and civil pleas and the discussion of the different types of dower.74 The author of the Dialogus, Richard fitzNigel, eventually bishop of London, scoffed at the schoolmen who made their learning all the more exclusive by wrapping it up in complex and obscure language. He, by contrast, would write not about ‘subtilia’ but ‘utilia’. Yet fitzNigel framed the Dialogus in the form of a university debate between a master and a pupil, and made sixty-two references to the Bible, and thirty-seven to classical and patristic texts, including several to Roman law.75

The impact of the ‘ius commune’, and more directly the canon-law element within it, was resoundingly clear in chapter 1 of Magna Carta. The chapter set the church free and proclaimed the papal confirmation of John’s charter of November 1214 promising freedom of elections, freedom that is for the church itself to elect its bishops and abbots. The 1100 Coronation Charter had equally promised freedom to the church, but had said nothing about elections. That was a measure of how far the church’s power and its law had advanced in the intervening hundred years. Magna Carta also reflected canon law in other ways. Thus, in chapter 22, clerks were to be amerced according to the value not of their ecclesiastical benefices but of their lay property, which recognized the canon-law principle that clerics did not hold benefices as personal possessions. Likewise, in chapter 27, the goods of those who died intestate were to be distributed ‘under the supervision’ of the church, which recognized the growing claims of the church in testamentary matters. Here Magna Carta was advancing beyond both the 1100 Charter and the Unknown Charter, which said nothing about the church’s supervision. The law, as it was being defined by the church, also impacted very much to John’s benefit when it was decided in chapters 52, 53 and 57 that he should enjoy the ‘crusader’s respite’. He could, therefore, delay dealing with the abuses of his father and brother until the end of his prospective crusade.

As for the other chapters of the Charter, Professor Helmholz has worked through no fewer than twenty-three of them, demonstrating parallels with the ius commune.76 Sometimes this is a case of the ius commune confirming long standing principles. Magna Carta prevented widows being forced into re-marriage. So did the putative Coronation Charter of King Cnut. But the idea was reinforced by the stress placed on free consent by both Gratian and Pope Alexander III (1159–81). If Langton’s diocescan statutes strengthened the view that there should be a chapter forbidding the sale and deferral of justice in Magna Carta, that justice should not be sold was acknowledged in the Dialogus. That it should be expeditious was a central aim of the common law. Indeed, Ranulf de Glanvill himself, as Henry II’s chief justiciar, boasted that justice in royal courts was far quicker than in those of the church.77 In other cases, the ius commune seems to have influenced the English law set out in Glanvill, which then found its way into Magna Carta. An example is the protection offered to sureties found in chapter 9 of the Charter.78 In a few cases, the ius commune arguably helped the drafters of Magna Carta actually extend English law and practice. Glanvill averred that amercements should not damage the victim’s means of livelihood, his ‘contenementum’, which was precisely how Magna Carta put it in chapter 20 when dealing with free men.79 But neither Glanvill nor any other source before 1215 extended, as Magna Carta does, the principle to protecting a villein’s ‘wainagium’, that is his means of cultivation, so his crops under cultivation, seed corn, ploughs and plough teams. Is there, however, a link here with a chapter in Justinian’s Codex? There, slaves who do ploughing, ploughs and plough oxen are all protected from seizure for debt, if that would delay the payment of taxes.80 In the Codex, the point is to protect agricultural labourers so that their lords can pay taxes to the state. In Magna Carta, it is to protect them, and thus their lords, from amercements imposed by the state. But the one stipulation may have helped shape the other.81

In the decades before Magna Carta, many of the ideas behind it can be seen in action. The turmoil that followed King Richard’s absence naturally enhanced the need for counsel and consent. The new form of government in 1191 was agreed by bishops, earls, barons and indeed the citizens of London. The gigantic tax for Richard’s ransom, paid by everyone in the kingdom, was likewise levied ‘by common assent’, although being for ransoming the king’s body, such consent was not strictly necessary. As Maddicott observes, the principle that national taxation needed general consent, established by the grant of the crusading tax (‘the Saladin tithe’) of 1188, was thus confirmed.82 Protection was also sought against arbitrary dispossession. In the peace treaty of 1191 lay and ecclesiastical magnates, knights and free tenants were to be deprived of their lands and chattels only ‘by judgement of the court of the king according to legitimate customs and assizes’. They were not to be disseised simply by ‘will’ of the king’s ministers.83Around the same time, Roger Bigod was offering his fine not to lose his inheritance ‘save by a judgement of the court of the king made by his peers’. Bigod’s fine is just one of many where people offer money for concessions that they would later get free of charge in Magna Carta. Such fines show the political mind of the king’s subjects. They were very aware of the standards they wished to regulate their relations with the king. They were also aware that, for money, they could have them applied. What was obtained individually before 1215, and for money, was obtained generally and by the pressure of rebellion in Magna Carta. The pipe rolls and fine rolls are thus full of offers of money for justice and judgement, ‘reasonable’ shares of inheritances, ‘reasonable’ dowers and freedom for widows to marry or stay single. One baron defined a ‘reasonable’ relief as one of £100, just as in the Charter, although since he had to pay 100 marks in order to secure it, what he ended up with was hardly ‘reasonable’.84

Equally telling are the concessions obtained by communities. The men of various counties gave large sums of money to remove the royal forest, get rid of increments and have sheriffs who were local men.85 Numerous towns secured charters that conceded them liberties and confirmed ancient customs, or customs they liked to think were ancient. John himself granted at least seventy charters to over fifty towns. These were the urban liberties and free customs that Magna Carta confirmed in chapter 13. The town charters anticipated Magna Carta in having amercements assessed by local men, and giving freedom of trade ‘through all England’. They conceded that officials could be elected by ‘the common counsel’ of the town, and laid down that such officials should monitor the provost (also elected) and ensure that he treated rich and poor alike rightly and justly. King Richard’s charter to London abolished the fish weirs on the Medway and the Thames, just as did chapter 33 of the Charter.86

There also striking examples of under-tenants anticipating the demands of Magna Carta. The tenants of Robert de Mortimer were clear they owed aids only on the three occasions that the Charter was to specify.87 Peter de Brus’s knights and free tenants in hiswapentake of Langbargh in north Yorkshire secured concessions that foreshadowed the Charter’s regulations about both bringing men to trial and penalties matching the offence. Indeed, the word for offence – ‘delictum’ – is the same as in the Charter. Brus’s concessions were embodied in a charter and described as ‘liberties’ to be held ‘in perpetuity’.88 Here one can see under-tenants developing an agenda of demands both against the king and against their lords.

The way ideas were moving against the Angevin kings is seen in a series of early thirteenth-century additions made to a London legal collection containing copies of the Leges Edwardi Confessoris and related texts. ‘Right and justice ought to reign in the kingdom rather than perverse will; law is always what does right; for will and force and violence are not right’, ran one such passage.89 Another interpolation in the same collection showed how the same principles might apply at the local level. Thus in the hundred court nothing was to be taken ‘save by law and reason, by the law of the land and justice, and by judgement of the court, without deceit’.90 There was a close connection between London and the rebels. One of the baronial leaders, Robert fitzWalter, was lord of Baynard’s castle in the city. These ideas, therefore, were almost certainly circulating in baronial circles.91 There was nothing original about them. They could have been written under the Carolingians. What is striking is that someone in London, in the early thirteenth century, thought such assertions were sufficiently important and timely to deserve interpolation into a legal collection. He had a very good reason, for while the Leges Edwardi, in their original form, showed that the king should accept the law as revealed by his people, they said nothing about the conflict between law and will. It was with a sharp appreciation of how John actually operated that the interpolator dealt with that issue, giving the Leges and its associated texts teeth and bringing them up to date. That is a measure of what John was up against.

JOHN’S DEFENCE

By 1215, therefore, the basic ideas of how the king should rule, as found in the Charter, were the reverse of novelties. They were part of the very fabric of English society. John in the 1200s was judged by far more exact and exacting standards than Henry I had been a hundred years before. Old ideas about good and bad kingship had been strengthened by the literature and learning of the twelfth century and by the precepts and procedures of royal government. These standards challenged old abuses, like punitive fines, arbitrary disseisins and the taking of hostages, which John was now practising on a new scale. They challenged financial exactions which, after the loss of Normandy, were being carried to altogether unprecedented heights. John’s rule was becoming very different from that of his father and brother. What he desperately needed was to provide it with an ideological rationale, which could justify what was in effect a new monarchy. One reason for Magna Carta was his failure to do so.

Neither John nor his predecessors ever really tackled a central criticism of their rule, namely the way that their acts of will seemed contrary to law. When the 1191 agreement said that men must be deprived of land by judgement and not by will, it then, in deference to the absent Richard, added that they could also be disseised ‘by the order of the king’. This admitted the king’s reserve of power, but did nothing to justify it. It stood there brazen, undefended and indeed undermined by the immediately preceding appeal to judgement. There were weapons to hand, both in the Bible and in Roman law, from which a new theory of monarchy might have been constructed. Yet the agents of royal government did no more than pull them from their scabbards only to hastily resheathe them.Glanvill itself quoted the famous maxim found at the start of Justinian’s Institutes, ‘the will of the prince has the force of law’. But instead of elaborating and glorying in the principle, Glanvill hurried on to say that the laws of England were those things ‘settled in council on the advice of the magnates and with the supporting authority of the prince’. John himself could invoke the ‘common utility of our kingdom’, but he never, like Edward I, observed that ‘for the common utility by his prerogative, the king is in many cases above the laws and customs used in his kingdom’.92 John could also speak of his ‘necessity’, but unlike Henry III’s queen, he never declared that ‘all things belong to the prince in cases of urgent necessity’.93

In all this, John got little help from his professional judges. Some of them might well be venal. Ralph of Coggeshall gives a vivid picture of the judge Osbert fitzHervey in Hell, being forced to swallow and then regurgitate burning coins. Yet these were men steeped in the principles and practices found in Glanvill. They would all have ascribed to the declaration made by the justices visiting Lincolnshire in 1218: ‘we are bound to give justice to all, rich and poor alike, without exception of persons’. Another of John’s judges, the knight, and later rebel, John of Guestling, was a tenant of the archbishop of Canterbury, and became close, having left John’s service, to Archbishop Langton. In a charter that he issued to local men about the mutual exploitation of marshland, he limited the amercements which could be imposed by his court to two shillings, very much in the spirit of Magna Carta.94 If there was going to be a tract justifying, indeed celebrating, absolutism, it would surely be the Dialogus, written by the king’s own treasurer. But not a bit of it, or at least not much of it. The Dialogus certainly got off to a good start. With a smattering of quotations from the Gospels, it declared that:

with all due reverence, we must subject ourselves and give obedience to the powers ordained by God, for all power comes from God. Therefore it is proper to serve kings who surpass all others … It is not for the king’s subjects to question or condemn his actions. For princes, whose hearts and consciences are in God’s hand, and to whose sole care God himself has entrusted his subjects, stand or fall by divine, not human, judgement.95

After this ringing passage, however, the Dialogus then continued in a more cautionary vein. ‘Let no one flatter themselves they can misbehave with impunity.’ God, here quoting the Book of Wisdom, would ‘punish the powerful with powerful torments’. And of course, the Last Judgement portals, like that shown to King John at Fontevrault by Bishop Hugh, often featured kings among those being dragged down by gruesome devils into the jaws of Hell. The Dialogus might preach non-resistance, but it did not justify arbitrary rule. Historians often scoff at contemporary references to the law of the exchequer, suggesting it was more or less the same as the will of the king. In John’s exchequer, under Peter des Roches and William Brewer, it may well have been. Yet it is quite clear that the Dialogus did not look at it in that way. While acknowledging that the king’s wealth might come by ‘his arbitrary will’ – ‘voluntatis arbitrio’ – as well as by law, it hardly seemed comfortable with the fact. The procedures or ‘laws’ of the exchequer, it explained, were for the king’s ‘utility’, but ‘saving equity’. They would ensure that the king got his dues and everyone their ‘right’. No one should be offended by the procedures of the exchequer, provided ‘they do not stray from the path of what is established by law’. The Dialogus also averred that the king ought not to revoke his gifts and pardons, a principle which constituted a vital barrier against tyranny since it meant that the lands and rights granted by royal charter were safe. The king could not just regret his concessions and overturn them.96

The problem for the king was partly that the biblical and Roman law texts did not give any consistent message. The Bible might show the king as the lord’s annointed, but it also gave plenty of examples of kings who had gone to the bad, and indeed (as in the case of Saul) had been removed. Roman law asserted both that the ruler was above the law, and that he was bound by it. It stressed both the prince’s role in making law and also the people’s. The tendency of legal teaching in England, as revealed in Vacarius’sLiber Pauperum and related texts, was to play down the absolutist elements in Roman law. Thus a gloss on the maxim that one should not dispute the ruler’s acts read ‘This is not true when the prince does anything by himself without the suggestion of anyone, for in that case it is permissible to dispute his act.’ ‘The vigour of the law comes from custom and the will of the people’, ran another gloss.97

Rhetoric under John and his predecessors certainly emphasized the king’s elevated status. Glanvill wrote of ‘your highness’, the Dialogus of ‘your excellency’.98 Actions could be stigmatized as against ‘the royal dignity and excellency’, or as offences ‘against the royal majesty’.99 John also enhanced the dignity of his kingship through his lavish hospitality and burnished its image through his expenditure on crowns, swords, jewels, clothes and buildings. One of the swords in his treasury was called ‘Tristan’ after that ‘swashbuckling hero’ of chivalric romance. We have seen the extraordinary apartments he built for himself at Corfe castle.100 Yet John failed, in any decisive way, to improve the image of monarchy on the silver penny, although it was far more familiar than any other. In the recoinage of 1205, he neither placed his own name on the coins (the king was still ‘Henry’) nor gave the king’s head a proper crown. It was left to John’s son, in his recoinage of 1247, to assume a crown and stamp his own name, ‘Henricus III’ or ‘Henricus tercius’, on the coins.101

At the heart of John’s defence were very traditional ideas. He challenged his opponents on their own ground, by arguing that his demands were ancient and customary, while it was they who were acting wilfully and unjustly. Thus the pope, back on John’s side in 1215, opined that the king’s ‘ancient’ right to scutage was being denied ‘without judgement’ by a baronial act of ‘will’. In the same year, John summoned Wallingford honour knights to garrison its castle, as they were ‘anciently accustomed’.102 In some cases, John had every right to deny the existence of the ‘ancient customs’ that were being appealed to. Chapter 2 of the Charter made out that the ‘ancient’ relief of an earl or a baron was £100, but both Glanvill and the Dialogus agreed that the sum was determined by the king’s pleasure and was subject to whatever could be negotiated. The exchequer’s pipe rolls show that that was indeed the actual practice.103 A different point could be made about chapter 25, which said that the counties should be held at their ancient farms, without any increment. Certainly the farms were ‘ancient’, but it was surely perfectly ‘reasonable’ for the king to try to exact sums above them, given the increasing population and wealth of the country. And what of the forest? That it should extend no further than at the start of the reign of Henry II was the demand, but was that ‘reasonable’ given all the losses of royal forest under Stephen? In all these things, it was surely John’s critics who were the innovators. Magna Carta might be trying to subject the king to law, yet in many cases it was not ancient law but the law that the Charter itself was making.

John also sought to exploit one of the most basic strands of royal authority, namely the loyalty and service due from men who had done him homage and sworn him fealty. Again and again, John harped on these bonds and tried to strengthen them. He did so in 1205 when facing invasion, in 1209 in the great oath of Marlborough, and, on several occasions, in 1215.104 It was his natural reaction in any moment of crisis. As Thomas Bisson has remarked, ‘John lived by oaths.’105 John saw the crises he faced as crises of lordship, caused by the failure of his men to live up to their obligations. They were solvable by insisting that the obligations be fulfilled. Thus John demanded that William Marshal and Walter and Hugh de Lacy should surrender William de Briouze ‘in the faith they are held to us, as they are our liegemen’. The consequences of breaching faith were made very clear by John’s threats against the Marshal in 1206, uttered for him by John of Bassingbourn. ‘I cannot see or understand why or how anyone should hold land if he fails his lord in his hour of need.’106 John was here exploiting powerful ideas. True, those who remained loyal usually had strong material reasons for doing so. John’s unpopular castellans and sheriffs had nowhere else to go. The alliance between the Welsh rulers and the rebels gave the marcher barons, including Ranulf, earl of Chester, and William Marshal, strong grounds for remaining on the royal side. The Marshal had also to consider his position in Ireland, where he had many enemies and the rebellion had no footing. Yet the duty of loyalty to one’s lord, which runs throughout the History of William Marshal, was far more than poetic rhetoric. The Marshal himself saw his career in those terms. In a letter of 1216 the young Henry III described how the Marshal ‘had always stood faithfully and devotedly by our father when living, and now adheres constantly to us … having proved himself as gold in the furnace’.107 Likewise, Reginald of Cornhill, as sheriff of Kent, acknowledged that he should make an annual payment in alms for ‘the glorious king of England’:

as I am a faithful man [fidelis] of the lord king and have done him homage nor ought I to want his honour or utility ever to suffer, particularly in those things which especially belong to the preservation of his body and soul.108

Rebellion could seem dishonourable. The History of William Marshal makes no reference to that of William Marshal junior. The Anonymous of Béthune likewise passed over his patron’s desertion of John.109 Some of John’s enemies may well have wrestled with their consciences before taking the final step into rebellion. But the trouble was they did take the step. There was a whole array of arguments to justify rebellion and indeed deposition, as we will see.110 And John provided so many material reasons to embrace them. Reginald of Cornhill’s son, another Reginald, who followed his father as sheriff of Kent, himself rebelled in 1215. He had been made to offer 10,000 marks to have his father’s lands and be forgiven his debts.111

John, like his predecessors, also stressed his absolute, overarching duty to preserve and defend his own rights, the rights of ‘my’ crown, or the rights of ‘my’ kingdom.112 This was a constant theme in his dispute with the monks of Bury St Edmunds between 1213 and 1215 over the appointment of their new abbot. ‘Welcome my lord abbot elect, saving the rights of my kingdom’ was his greeting on one occasion. ‘What do you want me to say to you?’ he angrily asked on another. ‘I have to consider myself and my crown before you and your honour.’113 Linked to the idea of the crown was the argument that the king could do as he liked with certain possessions which were peculiarly ‘his own’. John evidently deployed the argument to some effect in 1215, for the king’s demesne manors were exempted from the Charter’s restrictions, in chapter 25, on the raising of revenue from the counties and hundreds. He would also have deployed it to defend his right to tallage both the Jews and royal towns as he pleased.114

Such ideas, however, were not without danger. Was there any connection between the rights of the king and the welfare of his subjects? John did not suggest so when he demanded support for the recovery of Normandy simply ‘as you love us and our honour’ ‘in our most urgent need’. All John offered in return was to give a good hearing to his subjects when they brought ‘their affairs’ before him. He could not have shown more clearly that his ‘affairs’ were quite separate from theirs.115 Sometimes John did strike a more inclusive note. In 1205, facing invasion, he summoned his magnates to discuss ‘our great and laborious affairs and the common utility of our kingdom’. Likewise, the tax of 1207 was for ‘the defence of our kingdom and the recovery of our right’.116 In 1213, with another invasion threatening, the king summoned barons, knights and all free men to Dover to defend ‘our head, their heads and the land of England’.117 John could also indicate how his interests and those of the kingdom were connected. ‘You should defend our rights because we are bound to defend yours,’ he opined in one proclamation.118 Such rhetoric had an impact. Interpolations in the Leges Edwardi collection included one about the obligation to serve the king ‘for the protection of the kingdom’. On the other hand, another interpolation stressed the duty to muster in defence of ‘the honour and utility of the crown of the kingdom’, which almost suggested the kingdom had wrested the crown from the king, and had its own interests separate from his.119

Even at its best, John was doing nothing to justify the arbitrary features of his rule. Indeed, his basic line was simply to pretend that they did not exist. His government was consensual and congruent with the law:

We do not wish that you should be treated henceforth save by law and judgement, nor that anyone shall take anything from you by will, nor that you be disseised of your free tenements unjustly and without judgement.

So ran one proclamation to Ireland.120 Thus John’s letters, like the legal rulings and decisions of his judges, frequently stressed that he was acting reasonably, according to the law and custom of the kingdom.121 When John acted against the monks of St Augustine’s, Canterbury, he claimed that they were challenging the dignity of the crown, and violating the law of the kingdom, while he, in ejecting them from Faversham church, was acting ‘on the advice of our nobles according to the custom of the kingdom’.122 John’s long and detailed account of his proceedings against William and Matilda de Briouze was in exactly the same vein.

John’s arguments have convinced the greatest Magna Carta historian of the validity of his case. Holt has declared that John and his predecessors ‘were normally able to take action against the recalcitrant by lawful and accepted procedure’. ‘John’s conduct of affairs was not in the main unlawful or contrary to custom.’123 In Holt’s perspective, John’s rule was thus broadly congruent with Magna Carta chapter 39, the more especially since the chapter offered treatment according to ‘the law of land’ as an alternative to judgement by peers.124 The immediate precursor of the clause was an offer of John himself in the days before Magna Carta. In a letter issued on 10 May 1215, he promised the barons that he would not arrest, disseize or go against them by force or by arms ‘save by the law of our kingdom or by the judgement of their peers in our court’.125 There was certainly much in the law of the kingdom that John could exploit. The Charter itself accepted, in chapter 9, that chattels and land might be seized to compel the payment of a debt. In law suits, property could likewise be seized and people arrested in order to compel attendance at court. The law also permitted pre-trial arrest in criminal cases, as the Charter acknowledged in chapter 54 when it said that no one was to be arrested and imprisoned on the accusation of a woman for the death of anyone other than her husband. In a criminal cases before the justices in eyre, guilt or innocence, was usually determined not by judgement of a jury but by the ordeal. Yet it is very unlikely that in 1215 ‘the law of the kingdom’ was seen as weakening the force of judgement by peers and giving the king some kind of leeway. John made the offer to conciliate his enemies, and probably in answer to their demands. The barons altered ‘the law of our kingdom’ to ‘the law of the land’, the latter both more independent of the king and more respectful of local custom, and then incorporated ‘by judgement of their peers or by the law of land’ into the Articles of the Barons and thence into Magna Carta. The law of the land was seen as tightening not loosening the bonds around the king. It meant he should rule in concert with his nobles, for Glanvill, as we have seen, insisted that the laws of England were made by the magnates and the prince together. The law of the land might represent no more than a general sense of what was right and customary, but that made it all the easier to accuse John of contraventions. It could also be seen as offering quite specific protections. It allowed an individual to defend himself by trial by battle, as the Marshal wished to do in 1206.126 It meant the process of outlawry must follow proper customary procedures (a major issue given the outlawries of William de Briouze and later Robert fitzWalter and Eustace de Vescy.) And it meant, unless there were other local customs, that pre-trial arrest should take place after accusation by a private individual or a jury, here overlapping with chapter 38 which insisted that a bailiff was not to put anyone ‘to law’ and so on trial on his own unsupported accusation. John’s problem was that however much he said his conduct was lawful, no one at the time believed him. His subjects were far less persuadable than Holt. With his arbitrary conduct and financial exactions, John was creating a new type of kingship, but a kingship new in its actions, not in its justifications, a kingship of great physical power without any kind of ideological support. John was reduced to telling everyone that it was just kingship as of old. The whole political community knew this was untrue. It had plenty of standards by which to judge John, and in essence, like the annals of Waverley abbey, it judged him a tyrant. The question for John’s enemies became what to do about it, and how to justify what they wished to do.

THE EUROPEAN CONTEXT

Some answers to that question were being given elsewhere in Europe, where ideas similar to those in England were being elaborated in legislation, embodied in concessions made by rulers and appealed to by those in opposition to the king. Magna Carta certainly did not stand alone.127 In the Spanish kingdom of León and Castile, legislation covered the rights of widows, royal courts meeting in fixed places, due legal process, judgement of peers and the levying of taxation, all issues found in Magna Carta.128 Rulers were also making detailed concessions. In 1205 King Pedro II of Aragon drew up for his subjects in Catalonia a charter (probably never promulgated) that granted privileges in the areas of ‘taxation, administrative practices, justice and coinage’. In the process he promised that local officials should be knights of the land, chosen by ‘the counsel of the magnates and wise men of that land’.129 How English local society would have liked that in Magna Carta! Then, in December 1212, Simon de Montfort issued the Statute of Pamiers for the state which he was founding in Béziers and Carcassone after victory in his crusade against the Albigensians. The Statute ran to over forty chapters. Many of these dealt with relations with the heretics. But the Statute, having begun like Magna Carta, by protecting the rights and liberties of the church, also made justice free, limited the obligation to perform military service, gave safeguards against imprisonment, allowed French widows, magnates and heiresses to marry among themselves without permission, and upheld French customs of inheritance for barons, knights and burgesses. There was even some protection for men against the ‘malice’ of their lords.130 Given that Simon de Montfort, as we will see, was canvassed in 1212 as king of England, if John was deposed, it is highly likely that this example was known to English barons.131 What then could they do to resist John in England?

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