Clause 39 of Magna Carta 1215 is perhaps the most famous of
the Charter’s 60-odd clauses: ‘No free man is to be arrested, or imprisoned, or
disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against
him or send against him, except by the lawful judgment of his peers or by the
law of the land.’
Setting out the principle that the government should be
bound by the law – that the ruler could not simply attack his subjects as and
when he pleased – it has long been held up as a shield against arbitrary government
in those countries where the Charter’s principles have informed the
relationship between ruler and ruled.
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| Injustices committed under King John, as depicted by Matthew Paris |
But what was the context for this demand in 1215? Anyone
with a passing familiarity with the period might cite the tyrannical government of ‘Bad King John’. Famous
examples easily come to mind: John’s harrying of the Briouze family, and his imprisonment
and starvation of Matilda de Briouze and her eldest son, being one of the most
notorious.
But the reality of John’s rule was, in fact, more brutal
than even cases such as this would suggest. In preparing his commentary on clause 39 for the Magna Carta Project, Henry Summerson has undertaken a
thorough investigation of how John ruled on a day-to-day basis. The result is a
picture of a government that was systematically aggressive, violent and arbitrary.
The ability and willingness to provide justice to those who
sought it was, as far as the king was concerned, a tool for exercising his
power:
‘What mattered... was his ability to variously advance the men he
trusted, fend off those he did not, and play upon the hopes and fears of both
in such a way as enabled him to retain their loyalty, or at any rate frustrate
their disloyalty.’
The king’s court might follow sound procedure and provide justice
to those who sought it, although not if it was the king himself who had inflicted an injustice upon one of his subjects – which was all too often the
case. But Angevin kingship was as much personal as it was
procedural. The king’s good will (benevolentia) and his ill will (malevolentia)
were fundamental to the operation of royal rule:
‘The world of the Angevin
court and government was one of violent, almost black-and-white, antitheses, in
which benevolence and malevolence were polar opposites, with little neutral
ground between them – anybody who lost the one stood in immediate danger of
incurring the other, and of seeing his affairs go to ruin in consequence,
exposed to the caprices of an administration which was always heavy-handed and
often downright violent as well.’
The effects of the king’s anger could be devastating. Henry
II and Richard I demanded vast sums of money from their greater subjects to buy
back the king’s good will, often for unspecified offences or in the pursuit of
their grudges. But King John pushed
these arbitrary methods of government much further.
One of John’s favoured tools was dissesin – the repossession
of a subject’s lands. This was a severe blow to the subject’s prestige and
social status but the financial consequences were also severe:
‘anyone disseised on
the king’s orders faced the loss of all his or her movable assets... [and potentially] the
complete devastation of the property. Thus in 1215 the houses on the land
of Henry of Braybrooke were to be completely demolished, while a year later
order was given that all the lands of William of Hastings were to be wasted,
his demesnes destroyed and his castle pulled down.’
It was not only earls and barons who suffered at John’s hands:
‘What sets John’s kingship
apart from that of his two predecessors is the number of lesser men who were
similarly targeted... almost any offence, whether real or not, could result in dispossession,
carried out on orders whose arbitrariness was if anything underlined by the
frequency with which they were said either to have originated in the king’s
malevolence’
Henry has uncovered a catalogue of examples that reveal how
‘disseisin had become a well-nigh automatic reaction on the part of the king
and his agents to any misdeed or suspicious act which came to their attention.’
Imprisonment and physical violence, and the threat thereof,
were also tools readily used by the king. When the kingdom was placed under an
interdict, in 1208, John
'encouraged, or at least countenanced, assaults on the
clergy (the Barnwell Chronicle referred to clerks suffering through swords and
gibbets), and then he forbade such attacks, with the hardly less intemperate
declaration that if he could lay hands on anyone responsible, "we will have him
hanged on the nearest oak".'
In 1215, John was able to capture Belvoir Castle 'by threatening to have
its lord (and his prisoner), William d’Aubigné, starved to death if his men did
not surrender.’
But the king’s threat of violence had also become a normal tool
of administration, threatened as punishment for relatively trivial offences
that merely inconvenienced the kings’ household:
‘In 1201 the men of Gloucester
had to pay forty marks to recover the king’s good will, lost because they did
not provide him with the lampreys he had ordered for his visit in late October.’
In 1205, the king ordered Reginald of Cornhill to buy wine for him and send it
to Nottingham, warning him to "know that if the wines are not good we will betake ourselves
against you for it". Clearly 'John’s government seems to have expected, or even
wanted, to arouse fear.’
The extent to which the government deployed violent and
aggressive methods actually led to confusion, as the king and his officials
struggled to keep track of whom they had attacked and why. In fact John seems to have encouraged a
policy of ‘disseise first and ask questions later’ in his officials, as when
‘he
ordered Falkes de Bréauté to restore his wife’s inheritance to Roger Corbet,
apparently a Gloucestershire landowner, but concluded by commending Falkes’s
prudence "in that you disseised him and notified us of it".’
Although chroniclers decried John’s rule in general terms,
‘it
is in the records of that government that the evidence for its activities... is mostly
to be found. Those records are full of gaps, and in any case the personal
character of John’s government means that many of its actions were not formally
recorded. But despite these difficulties, which make quantification
impossible, it seems likely that the level of demands and penalties, reinforced
by threats, rose markedly in the later years of John’s reign.’
Henry’s commentary reveals, perhaps for the first time, not
only the sheer scale of John’s arbitrary treatment of his subjects but also its
routinisation. For this reason clause 39 was of fundamental importance, for it
‘aimed
to subject intrusions of policy and personality to the constraints of due
process. By doing so it proclaimed, and helped to install, regularity,
routine and impartiality as qualities fundamental to the administration of
justice, while in the longer term it set in motion developments which resulted
in law ceasing to be no more than an agency of government.’
