Richard & John: Kings at War

by McLynn, Frank

  The towering reputation of Magna Carta seems at first sight puzzling, since the sixty-three clauses of the Charter overwhelmingly deal with medieval and feudal matters. Much predictable mirth has been expended by the cynics and sceptics on clauses like number 33: ‘Henceforth all fish-weirs shall be completely removed from the Thames and the Medway, and throughout all England, except on the sea coast.’ For convenience Magna Carta may be considered under four headings: purely baronial grievances; wider issues touching on the law; clauses benefiting the rebels’ allies; and those aspects which really do bear upon the common good and ‘liberty’ as it would be understood today. Reliefs, wardships, marriage, the position of widows of tenants-in-chief, and the payment of debts to the Crown were the most vexatious matters oppressing the barons, and the sought-for protections were assured in clauses 2-9. Clauses 10-11 covered debts due to the Jews. There was an important concession about scutage in clauses 12 and 14, where it was declared that this would be taken ‘only by the common counsel of our kingdom’. This meant, in future, not just rubber-stamping by handpicked royal advisers but the actual consent of the tenants-in-chief, who would be summoned to give it either individually, if they were great lords, or collectively, in the case of lesser barons. John promised to abolish the ‘evil customs’ of the Forest once a commission of enquiry had reported, and to disafforest all the land he had afforested in his reign (clauses 44, 47, 48 and 53). He furthermore promised to restore immediately all lands, castles and other property he had taken from anyone without proper judgement and to have similar acts by his father or brother investigated and rectified once he himself had returned from crusade (clause 52). He also pledged himself to return all hostages that he had taken ‘as security for peace or faithful service’ (clause 49) and to expel from his kingdom all mercenary troops and foreign knights and crossbowmen (clause 51). The most startling concession wrung from John by the barons was a written promise to clamp down on the activities of Gérard d’Athée and his kinsfolk, explicitly named in clause 50 as follows: ‘Engelard de Cigogne, Peter and Guy and Andrew de Chanceaux, Guy de Cigogne, Geoffrey de Martigny with his brothers, Philip Mark with his brothers and his nephew Geoffrey, and all their followers.’

  The legal reforms of Magna Carta were momentous. The barons did not attack those aspects of John’s reforms which had benefited litigants, even though they were primarily designed to swell his coffers, but they did object to the king’s manipulation of legal processes for his own advantage. In future he was not to deny a man justice, to take money from anyone for helping to get him a favourable verdict or for delaying a suit, to sell writs or to try to make a profit out of the sale of writs that initiated legal actions or to try to use writs to bring into the royal court matters that could be perfectly well dealt with in the barons’ own feudal courts. It was stipulated that no action against an offender should deprive a man of his liberty, rights at law or property ‘except by the lawful judgement of his peers or by the law of the land’. The limitation of the power of sheriffs was another prime aim of the Charter (clauses 4, 24, 26, 30, 48). John’s foreign henchmen were specifically targeted in the requirement that the king could not simply appoint anyone he wished as sheriff and that no one could be appointed sheriff or justice who did not know the law of the land (clause 45). Moreover, in a significant new development, common pleas could be held in a fixed place and those who entered them did not have to follow the king’s court around the country to secure a hearing (clause 17). Clause 18 stated that judges were to hear the assizes of novel disseisin, mort d’ancestor and darrein presentment - exactly the sort of jargon that makes the past seem a foreign country to all but scholars. In plain English, it offered safeguards to anyone who felt he had been wrongly dispossessed of property, who claimed to be the lawful heir to a deceased person’s property or who disputed patronage of churches. Whereas, previously, writs had to be prepared and presented by the plaintiff, with all the attendant expense and risk, under the new system the sheriff had the duty to prepare such writs and to convene a jury to hear the case when the king’s judges next visited the county. As has been pointed out more than once, clause 18 was an anomaly in that it was the only clause in the Charter that asked for more government rather than less. The demand that royal judges should hold county court sessions four times a year proved beyond the administrative capability of the governments that succeeded John’s.

  Although most of the Charter was designed to satisfy the demands and aspirations of the barons, either explicitly or implicitly, the fact that they claimed to be campaigning for justice, not to mention the prudential requirements of simple politics, meant that they had to include some sops or inducements for their actual or potential allies. Wales and Scotland were placated in clauses 56-59, while London was specifically favoured by the provisions of clauses 12 and 13, which effectively gave the capital the status of ‘most favoured city’. The barons realised the growing importance of the merchant classes, and sought protection for the privileges of towns, freedom of trade, liberty of movement for merchants, including the right to pass freely to and from national borders; foreign merchants were given the same rights except in wartime (clauses 41-43). There is something almost pettifogging about the barons’ concern for commerce in clause 35: ‘Let there be one measure of wine throughout our kingdom and one measure of ale and one measure of corn, namely the London quarter, and one width of cloth, whether dyed, russet or halberjet, namely two ells within the selvedges. Let it be the same with weights as with measures.’ Even infrastructure got a mention, with clause 23 emphasising the importance of bridge-building. But for a modern reader perhaps the most interesting provisions of the Charter are the ‘universal’ ones, real or alleged. All classes, even the peasantry, benefited from the mitigation of ‘amercements’ - those notoriously draconian punishments ordained for misdemeanours - such as neglect of public duties, failing to bring a criminal to justice, mumbling or pleading falteringly in court or minor offences against public order. Clause 20 of Magna Carta tried to make the fine fit the crime and declared that no fine should make a peasant economically unviable; moreover, only local men, not royal officials, were to decide the amercement. Hitherto it had been a simple matter for the king’s officials to declare almost anyone in default on this score and at the king’s mercy - a plight only to be relieved on payment of a fine. Amercements rarely came to less than half a mark (six shillings and eight pence) in an era when the average wage of a day labourer was thirty shillings a year and the total value of a peasant’s goods and chattels seldom exceeded ten shillings. On other aspects of the ‘General Good’, some critics have attempted to read clauses 12 and 14 as adumbrating an embryonic parliament. The one incontestable breakthrough came in clause 39 in the famous nullus homo liber provision: ‘No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land.’ The original wording was to have been ‘any baron’; by changing it to ‘any free man’ the drafters of Magna Carta turned a medieval document into something that has often been hailed as a charter of freedom that belongs to the ages.55

  Since many have asserted that the only significant thing about John’s reign was Magna Carta, any student of John must pause to consider the Great Charter in slightly more depth. Sceptics have claimed that, far from being a beacon on the road to freedom, it is a reactionary document drawn up by a set of benighted barons concerned only for their own selfish interests. 56 The leaders of the ‘Army of God’ cared little for God and even less for liberty, but only for their own estates, wealth and aristocratic exemptions; in this regard it is often remarked that ‘liberty’ originally meant ‘privilege’ rather than ‘freedom’ and that any freedoms in the Charter were concerned with the freedom of the Church or freedom from taxation. As one historian with little time for the barons puts it: ‘There is in it no high-sounding statement of principle and no clearly defined political th
eory. It is in fact a Charter of Liberties not a Charter of Liberty, concerned to secure practical reforms which would protect the upper classes against an overmighty ruler in current matters of grievance, not to enunciate abstract ‘rights of man’.57 Others argue that Magna Carta had little to do with the history of the freedom of the individual in England and was not even important in the development of modern law. Proponents of the ‘myth of Magna Carta’ claim that the document was moribund and neglected for three centuries and, when revived, was misinterpreted, possibly wilfully, by the jurist Sir Edward Coke in the seventeenth century and then taken up by the even more influential Sir Edward Blackstone in the eighteenth. From these misinterpretations come the notion of Magna Carta as a document legitimating the resistance of Parliament to Charles I in the English Civil War and of the American colonists to the mother country in the American War of Independence. The great academic battlefield, unsurprisingly, is clause 39, which sceptics deny gives any support to the modern notions of trial by jury.58

  The defence of Magna Carta as a document for the ages rests on a twofold counter-attack: the denial that so-called offending clauses really are reactionary; and the assertion that the either/or dichotomy of reactionary medieval document versus epochal charter of freedom is methodologically unsound and depends on a secret and unjustifiable ‘law of excluded middle’ - as if a proposition in logic rather than a matter of historical interpretation was at stake. Clause 34, which appears to disallow the use of the writ in proprietary actions, is often cited as a manifestly reactionary provision, but compelling arguments have established that the barons were merely ensuring that they did not lose the right to hear certain cases in their feudal courts because of some legal technicality.59 Most of the clauses, such as those on amercements, are clearly progressive on any reading of the evidence. Because the wording of Magna Carta is sometimes opaque, the phrasing loose, and the provisions without any precise meaning, a kind of biblical exegesis has grown up, with all the notorious orthodoxies and heresies connected with the Bible reappearing in the Charter. Some have therefore argued that there is no necessary collision between benighted reactionary document on the one hand and charter of modern freedom on the other, since the very act of interpreting Magna Carta in ways the men of 1215 did not intend is an intrinsic consequence of the document itself. On this point two modern authorities may be cited: ‘There is no inherent reason why an assertion of law originally conceived in aristocratic interests should not be applied on a wider scale’;60 and: ‘It is not at all anachronistic to see in Magna Carta the animating principles of consent to taxation, due process and the rule of law.’61 Lovers of paradox will relish the fact that this written document is supposed to be the foundation of the British Constitution, yet the British have always made a fetish of having an unwritten constitution, governed by conventions that increasingly presidential prime ministers increasingly ignore. The real influence of Magna Carta is on the written constitution of the United States.

  More relevant for a biographer of King John are the many criticisms that have been made about the wisdom and practicability of Magna Carta from the barons’ own viewpoint. It would, however, be naive to take the old, discredited view that Magna Carta’s detailed clauses were really the work of churchmen, with the barons relegated to the sidelines as intellectual boneheads; for one thing it was Saer de Quincy, earl of Winchester, the barons’ best administrator, who conducted the final negotiations.62 But whether barons or clerics made the greater contribution to a document that was the work of many hands and many different interests, homogenised and streamlined by Chancery clerks to give the appearance of unity and coherence, it is clear that in many ways the Charter was severely deficient. Stephen Langton and the more intelligent of the barons were determined to prevent any royal fudge or obfuscation; they knew what they were dealing with in John. They were determined to stop him using key matters of high politics and foreign policy as a smokescreen behind which he could meddle with routine and everyday issues of justice and lordship. But the result was that Magna Carta was a farrago, an olio, a gallimaufry: some clauses were just, reasonable and excellent; some were vindictive and designed to humiliate John; some were ill-thought-out, impracticable, quixotic and chimerical. Clauses 12 and 13 left it vague what the future basis for taxation should be; it was a classic case of all rights and no duties. Clause 14, it has been pointed out, for some an embryonic parliament, would have entailed an impossibly large and unwieldy assembly of more than 800 people. Clause 11 dealt with the Jews, and simply tapped antisemitism in an obvious or facile way; nothing was said about the acquisition of Jewish bonds at very high interests by the monasteries. Throughout the Charter it is unclear who are the ‘peers’ who are supposed to judge matters, particularly if an issue affecting all the barons arose: who, then, could conceivably be their peers?63

  Yet the worst political miscalculations occurred over clauses 52 and 61. Clause 52 stated: ‘If, without lawful judgement of his peers, we have deprived anyone of lands, castles, liberties or rights, we will restore them to him at once. And if any disagreement arises on this let it be settled by the judgement of the twenty-five barons.’ Clause 61 declared: ‘The barons shall choose any twenty-five barons of the realm they wish . . . so that if we or any of our servants offend in any way . . . then those twenty-five barons together with the community of the whole land shall distrain and distress us in every way they can, namely by seizing castles, lands and possessions . . . until in their judgement amends have been made.’ Hitherto kings had kept their promises only through fear of God or rebellion, but the barons, rightly, knew that neither of these factors weighed much with John. It was entirely possible that the whole structure of Magna Carta would topple the second John was back in Winchester, that he would instantly try to wriggle out of his commitments, as was his habitual practice. In logic, they had therefore to put in place some kind of enforcement procedure, so that their labours on the Charter did not turn out in vain. They proposed a system whereby all the barons would take an oath to obey the instructions of their 25-strong executive committee, or a majority if they could not all agree. But the barons sharpened the edge of conflict by insisting that only ‘northerners’ or rebel barons could serve on the Committee of Twenty-Five; there was to be no place for the William Marshals or any of the moderate lords.64 John was therefore faced by a committee of his sworn enemies. It did not take a genius to see that if all real decision-making was henceforth to be the prerogative of this committee, and that they could strip the monarch of castles and all the sinews of war without any possibility of appeal against their judgement, then the king had in effect been dethroned. Everyone who knew John also knew that he was negotiating in the first place only to buy time, that he would repudiate the Charter once he felt strong enough. But the formation of the Committee of Twenty-Five meant that the differences between him and the barons had now become irreconcilable, and that civil war would break out again sooner rather than later. The barons had created a kind of Frankenstein’s Monster in Magna Carta, for its provisions placed the unfolding of events beyond their control.65

  The month after Magna Carta was superficially peaceful. At first John seemed to have turned over a new leaf. Commencing 19 June, his Chancery issued a shoal of writs to correct the most notorious individual baronial grievances and began by implementing the provisions of clause 25. Saer de Quincy, who claimed that John had unjustly barred him from his inheritance in Leicestershire, was given possession of Mountsorrel Castle; Richard Fitzallan retrieved the keepership of Richmond Castle; Robert Fitzwalter was given Hertford Castle; the earl of Clare received the town of Buckingham to be held in wardship for his grandson, one of the hated (by John) Braose brood; the earl of Huntingdon got back Fotheringhay Castle, which had been wrested from him by John in 1212 in the most brutal manner. 66 Even the sacrosanct Forest Laws were bent to accommodate the barons. Sheriffs were instructed to choose twelve knights in each county, charged with the task of investigating all legal abuses,
especially the evil customs of the Forest. Some changes in Forest provisions were immediate. Eustace de Vesci was conceded his ancient hunting rights - hitherto in conflict with the Forest Laws - and Richard Montfichet was allowed the office of forester in Essex, held by his forefathers but abruptly taken from him by John.67 There were many similar concessions. All sheriffs were notified that the king was now at peace with his barons, that the Charter be publicly read and that all men should swear allegiance to the Committee of Twenty-Five. Orders were issued for the repatriation of all foreign troops stationed at Dover.68 Feeling humiliated and plagued by gout, John nonetheless summoned up the energy to attend a council meeting at Oxford in July, where his favourite officials were due to be dismissed or demoted.69 But although he was prepared to conciliate the barons in ad hoc ways, John had no intention of honouring the more radical and extreme clauses of the Charter that would reduce him to a cipher. His duplicity was manifest when, the day after granting the Charter, he wrote a one-sided and tendentious account of the events at Runnymede to Innocent III, asking the Pope to declare the concessions granted there illegal. Here was breathtaking hypocrisy and sidewinding double-dealing: on the one hand instructions to the sheriffs to accept the sovereignty of the Twenty-Five; on the other a plea to the Pope to declare the Twenty-Five outlaw.70 It was pure John, the youngest of the Devil’s Brood at his most diabolical.

  John was pinning very great hopes on papal intervention and, pending receipt of the news from Rome, he stalled as much and as far as he dared. He accepted the proposal at Oxford in July that the Tower of London be handed over to Stephen Langton as honest broker, to be returned to the king provided a formal peace was signed by 15 August.71 But signs of royal resistance can be discerned even at Oxford. He had Peter des Roches issue two letters that breathed an implicit defiance. One tried to clarify clause 28, to ensure that the royal prerogatives concerning the Forest in general were not outlawed, and the other registered the barons’ refusal to acknowledge in writing their legal obligations to the Crown.72 For those capable of reading the runes, this was obviously not a king who intended abdicating meekly to the Committee of Twenty-Five. Moreover, John dragged his feet over the aliens he was supposed to expel. He did remove four of the alien castellans mentioned in Magna Carta but he kept Philip Mark on in the crucial royal castle at Nottingham and did not expel his other foreign favourites but kept them on ice, ready to use if (he clearly expected it to be when) the civil war reopened.73 On 9 August John tried to jump the gun by asking Stephen Langton to surrender Rochester Castle to des Roches. Langton correctly read this as the sign of a king who had no intention whatever of submitting peacefully to the Twenty-Five. Not only did he refuse John’s request but he pointedly made no attempt whatsoever to return the Tower of London to him after 15 August.74 Langton was finding the position of supposedly neutral arbiter difficult. Despite his contribution to the Charter and his drafting skills, and the formal nod of obeisance to the Church in clause 1, the more extreme barons were clearly in the ascendant by the time of the Runnymede meeting. Clause 61 - which in effect transferred sovereignty from the king to the Committee of Twenty-Five - virtually brushed the Church aside by forbidding any appeal to Rome against the decisions of the Twenty-Five. 75