Similar coalitions had been formed against Plantagenet kings in the past. The greatest such rebellion, mustered in 1173–4, in the aftermath of Becket’s murder, had threatened to deprive John’s father, Henry II, of his lands and authority. In the end Henry had made his peace with Becket’s shrine and thereby been restored to God’s favour, capturing the King of Scots in battle and decisively defeating his enemies. It was in the aftermath of this great rebellion that the full extent of Plantagenet predatory kingship had been displayed. The King had confiscated large numbers of baronial castles, for the first time since 1066 holding a balance of power in terms of the number of castles in royal rather than baronial hands. There had been a massive extension of the authority of the King’s courts both in respect to civil and criminal law. The King’s Assize of Northampton of 1176 required that all suspected criminals and wrongdoers be denounced by their local communities to the King’s justices to be sent to the ordeal, either forced to carry hot irons or plunged in water. Should they fail this test of God’s judgment, they were to have a foot cut off and then to be banished as outlaws. Lists of such criminals, county by county, suggest that the assize was enforced with brutal efficiency.
The King’s laws, like the Assize of Northampton, have been only haphazardly preserved. This itself speaks of a society in which not even a written statement of law could be relied upon: a society that, if not exactly lawless, was accustomed to kings who made or broke laws as they saw fit. Kings claimed to rule in the interest of their people, and yet kingship itself was so predatory, and the King so dependent upon arbitrary taxes and exactions for the financing of his wars and his courtly magnificence, that public and private interest were never fully distinguishable. Royal justice itself was as often about the profits that could be extracted for the King as ever it was about the delivery of abstract ideas of what was ‘just’. The delaying of justice, in order that both parties might attempt to buy the King’s favour at the highest price, was a favoured technique of Plantagenet government, according to one chronicler specifically recommended to Henry II by his mother, Empress Matilda, as the best means of emphasizing royal power.
Perhaps the most obvious contrast between medieval and modern approaches to the public good comes in the virtual absence of policing, at least in the sense that we would understand it as a public duty for which the state takes responsibility. Policing today can sometimes be seen as an infringement of ‘civil liberties’. Only by the surrender to the state of individual freedom of action, however, has the state been raised to a position from which it is capable of defending or impinging upon the liberties of individual citizens. In the thirteenth century this surrender of liberties was so embryonic and unregulated that the whole idea of a ‘state’ in twelfth- or thirteenth-century England is best avoided as an anachronism. ‘Liberty’ itself was a word more often understood to mean the right to independence from state control, as in the great ‘liberties’ held by barons such as the archbishop’s ‘liberty’ of Canterbury, or the ‘liberty’ of the earls of Chester, rather than some abstract freedom possessed by the individual confronted with the demands of the many. To this extent, the machinery of government in the twelfth and thirteenth centuries depended upon a delicate and frequently disputed balance between the local and the central, between communal responsibility and anything approaching state control.
Crime and the Frankpledge
The prosecution of crime in medieval England worked according to the so-called ‘frankpledge system’, according to which every freeman belonged to a tithing responsible for reporting crimes or suspicious deaths to the local court of the hundred or the vill. It was within the tithing that the ‘hue and cry’ would be raised to arrest criminals suspected of malfeasance. Rather as today, when those who exercise a restaurant franchise are supposed to deliver up a standard meal but are themselves ultimately responsible for the profits and complaints that their franchise may generate, so, in the Middle Ages, large parts of England were ‘franchised’ out to lords and barons who themselves took the profits of justice and bore responsibility for trial and punishment, up to and including the erection of gallows for the execution of felons. Certain pleas, the pleas of the crown such as homicide, rape or arson, were in theory tried only in the King’s courts. Nonetheless, cases in which the criminal was caught red-handed might be tried and punished by any local franchise-holder with right of gallows.
From 1194, local coroners appointed within each county were responsible for the investigation of sudden or suspicious deaths, and the county community of the knights also discharged public duties, serving on juries within the county court, and turning out, supposedly in large numbers, when the county ‘posse’, a term later exported from England to the United States, was required for national defence or to arrest and apprehend particularly notorious felons. Offences that directly concerned the King could be transferred to the royal courts of the county or of the crown itself, these latter ‘crown courts’ at this stage including the infrequent visitations of the country by the King’s justices (the ‘eyre’), the more regular sessions held before royal justices at Westminster (the Court of Common Pleas, or the ‘Bench’) and special sessions held before the King in person, the so-called court ‘Coram Rege’. At virtually every stage in criminal prosecution, it was nonetheless the local community which bore chief responsibility for defence against crime. Since large numbers of tithings answered not to the King’s jurisdiction but to hundred courts in the hands of barons, or to town courts with their own oligarchic system of communal government, the King’s court processed only a small part of the criminal justice system.
Even gaols, which were maintained by the King and his officers in royal castles and the great county towns, were elsewhere where often in baronial rather than royal custody, albeit with the King claiming the right to fine lords who permitted prisoners to escape. The greater private liberties, such as the bishopric of Ely, maintained their own prisons and their own courts for the exercise of jurisdiction, even over criminal cases detected within their private liberties. The bishop of Ely’s prison survived until 1836. The privately controlled soke of Peterborough, relic of the liberty of Peterborough Abbey dissolved in the 1530s, maintained its own prison until 1877 and had the theoretical right, last exercised in 1812, to impose capital punishment as late as 1971. Instead of a nationwide police force, the King’s capacity to maintain the law depended upon local officers, often no more than the gangs of serjeants who gathered around his sheriffs and constables and who just as often caused as quelled disorder.
When the courtier William Brewer attempted to transfer large quantities of silver coin from Cumberland southwards in 1204, for example, to pay a fine owed at the royal Exchequer, it was the men of the local sheriff who ambushed and robbed the baggage train, stealing more than £60 in silver pennies as well as the helmets, hauberks and horses with which Brewer’s servants had been travelling. The depredations caused by King John’s sheriff of Nottingham are still a byword for royal tyranny. A man named Baldwin Tyrel was heard in 1212 spreading rumours in Cornwall about the supposed murder of King John. His words were reported to the local sheriff, but Baldwin himself would have walked free had it not been for two of the King’s household knights who, claiming that they were sworn to report all such rumours, took it upon themselves to arrest Baldwin so that he might be brought before the King for trial and sentencing. Most notoriously, it was the rallying cry of the royal household, ‘Reaux, Reaux!’, that had rung out at Canterbury in December 1170, bellowed by the four murderers of Thomas Becket as they fled from the scene of their crime.
As this implies, whatever kings themselves might claim about their public responsibilities as the chosen instruments of God’s justice, it was force, or the threat of force, that underpinned all royal authority. No king could rule, however velvet his gloves, unless there was a fist of iron to back up his claims to authority. By 1200, indeed almost certainly by the 1130s, there was already a major force of knights and sergeants
attached to the King’s household, augmented in time of war by mercenaries and paid muscle, the forerunners of the sergeants-at-arms, by the fourteenth century the chief enforcers of royal authority in the English localities. In ordinary circumstances, the King held so great a balance of military power within the realm that no one could resist his will for long. Even in the reigns of Stephen or King John, when relations between King and barons dissolved into acrimony and civil war, the sheer military might of the royal household and its attendant army of Flemish, Welsh or southern French mercenaries, was sufficient to maintain an unpopular ruler on his throne, in the case of Stephen for a decade or more. Set against the King, however, was a tradition of local baronial or municipal rights to the exercise of power, of knights accustomed to public service, and of communities scattered from one end of England to another, already conscious of their own responsibilities not just in the preservation of public peace but in the interests of a public good often easily distinguishable from the interests of a predatory royal administration.
Rule by Custom and the Law?
How could the public good best be served? How could a bad king be made to reform his administration? The first possibility was that the King himself might be persuaded that it was in his own best interest to govern in accordance with custom and the law. Some such idea was already present in the oaths sworn by Aethelred in 1016, or by Edward the Confessor in 1042, to uphold the good laws of the past. A similar idea emerges from the written promises of Henry I and Stephen, their so-called coronation charters, promising better government than that offered by their predecessors, as a means of buying baronial support in the midst of the succession crises of 1100 and 1135. On several occasions, force or rebellion was employed in the hope that this might compel the King to observe his promises of good government, from the great rebellion of 1075 against William the Conqueror onwards. However, since the Church was convinced that anything extorted under duress was invalid, just as a woman compelled into marriage might seek annulment from her marriage vows, so a king forced into concessions by his barons could always seek to wriggle free from his promises once circumstances changed. The chief risk with rebellion, as shown in 1075 or again in the 1170s, was that the King would simply defeat the rebels and in the aftermath behave with even greater disregard for law. From the great crisis of 1173–4, Henry II had emerged with his authority not weakened but greatly strengthened.
An alternative possibility, far more drastic even than rebellion, was simply to kill the King. The killing of tyrants, ‘tyrannicide’, had a great deal to recommend it. It had been common in Roman antiquity and had served to justify the killing of Harold at Hastings. The surprise is that it was so rarely attempted in the twelfth or thirteenth centuries. Readers of the classics or indeed of the Bible, most famously John of Salisbury in his treatise on government, the Policraticus, were fully aware of the possibilities of assassination. John of Salisbury, indeed, was prepared to allow that, in certain circumstances, where God had agreed that it might be done, a bad king not only could be but should be killed: ‘it is right to kill a tyrant’. The problem lay in deciding whether a king was or was not truly tyrannical, and thereafter in determining what God’s wishes in the matter might be. Here, like all other medieval commentators, John of Salisbury urged caution. The mind of God was unfathomable, and in the end God himself would make all things straight. Better therefore to be patient, to endure bad government, like Job in the Old Testament, who had endured far worse, and to await events. There were assassinations in the twelfth century, most famously of Charles, Count of Flanders in 1127, and later, during Richard I’s crusade, of Conrad of Montferrat, claimant to the throne of Jerusalem, murdered, so it was whispered, with Richard’s tacit approval. As we have seen, the fear of assassination explains the number of occasions when the death of the powerful, of Rufus or of Eustace, the son of King Stephen, was blamed upon poisoning rather than natural causes. In a notorious dispute, King Stephen’s candidate for the archbishopric of York, William fitz Herbert, was reputed to have been murdered in the very act of taking communion, by a priest who had placed poison in the chalice. Yet the severity of the punishments meted out to assassins, and the posthumous elevation of their victims to the status of martyrs – Charles of Flanders and William of York were both recognized as saints, and even the unloved Harold Godwinson was promoted in some quarters as a martyr – was itself a deterrent against the killing of kings.
In 1212, rumours circulated that King John had been murdered, his wife raped and his youngest son dashed to pieces at Marlborough, yet these remained precisely that, rumours which were very swiftly quashed. Even in the 1230s, when a plot against the life of Henry III was unearthed, masterminded by an exiled gang of criminals working from Lundy Island in the Bristol Channel, the reaction was universal revulsion. It was to take a full 250 years after the Conquest of 1066 for the English to dare actually to kill a king, and even then the killing was to be a hole in the corner affair, hushed up, spoken of only in whispers and so concealed that many remained uncertain whether the King, Edward II, King John’s great-grandson, was dead or alive.
Rebellion and Magna Carta
It is against this background that we need to view the outbreak of rebellion against King John in the spring of 1215. A sworn coalition of barons, commanding the sympathy if not the active support of leading figures within the Church, seized London in May 1215 with the cooperation of the city’s men, forcing the King into negotiations at Runnymede, a location halfway between London and the royal castle at Windsor. On 15 June, John agreed the issue of a document, under negotiation for at least the previous six months, which was intended to impose restrictions upon the future exercise of arbitrary royal rule. The document itself is known as Magna Carta (‘The Big Charter’) and, broken down into its individual chapters, runs to more than sixty clauses. It is undoubtedly the most famous document in English history. Yet what did it signify?
It was most certainly not the first written statement intended to limit the King’s authority or freedom of action, an accolade that perhaps belongs to the coronation charter of Henry I issued more than a century earlier. It was not even the first such written statement issued by King John. Throughout his reign, John had offered charters of liberties to individual franchise-holders, to the men of London, for example, to many of the great cities and towns of England or Aquitaine, or to communities, such as the royal charters awarding privileges within the King’s forests to the men of Devon or the tenantry of the honour of Lancaster. An assize for the men of the Channel Islands, supposedly issued by King John after 1204, attempted to regulate several aspects of Channel Islands law from the appointment of twelve ‘jurats’ to hear the pleas of the crown, a system still in operation today, to the restriction of the period during which conger eels might be salted. In April 1215, before the issue of Magna Carta, John issued a charter establishing communal self-government for the men of Bayonne, guaranteeing widespread liberties and privileges to the most important city of Aquitaine south of Bordeaux including detailed provisions for the city’s governance by a mayor and a council of 100 citizens, the city already having acquired its own naval council set to monitor such matters as the price of freight between Spain and Flanders or the whaling fleets of the Bay of Biscay. Such documents can be linked not only to the discipline of law, and to the demands by churchmen, by Stephen Langton for example, that kings be bound by a Leviticus just as the kings of the Old Testament were bound. They also reveal the twelfth century’s growing fascination with categories and definitions. The sixty or more clauses of Magna Carta not only imposed definitions and categories of this sort but resembled the division into clauses of the Old Testament books of law, a system attributed to Stephen Langton, or the law codes of the pre-Conquest Anglo-Saxon kings.
Many of the clauses of Magna Carta are concerned with the King’s financial regime: the limitation of the fines that he could charge his barons when they inherited their father’s estates, the protection of wards
and widows, the restriction of the King’s ability to charge arbitrary taxes, known as ‘aids’, without the consent of his barons and the Church. At the same time, a surprising number of clauses were targeted at particular interest groups whose demands the King sought to satisfy. The Church was to have its ancient liberties. The barons were to be free from arbitrary royal demands. The merchants of London might trade without unreasonable hindrance. Certain clauses might seem especially ephemeral: clause 33, for example, demanding the removal of all fish weirs on the rivers Thames or Medway. Why these two rivers in particular? To the men of London and the Archbishop of Canterbury, with his estate at Maidstone, it was essential that these rivers remain navigable, and the building of mills or weirs threatened such navigation. Special interests were at stake. Clause 50 of the 1215 charter included a long list of names of foreigners, Girard d’Athée and his associates, who were to be dismissed from office, and under clause 51 banished from England. These were in fact the most important of the King’s French constables, recruited from the region of the Loire valley, essential to John’s military control over England and as links to his lost continental domain. One of them, Philip Mark, is still a familiar figure in English history, albeit known by his title rather than his name, as King John’s sheriff of Nottingham, adversary of the mythical Robin Hood.
Only a very few of the charter’s clauses can be read as general statements of principle, the most important being clause 39:
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 judgment of his peers or by the law of the land.
A Brief History of Britain 1066-1485 Page 26
