The Dictum of Kenilworth, Part 2

Gilbert de Clare, 7th Earl of Gloucester, was originally on the side of the rebels during the Second Barons' War. He changed over to the royalist side when Simon de Montfort made an alliance with Llywelyn ap Gruffudd, Prince of Gwynedd (considered an enemy of the English).

During the drafting of the Dictum of Kenilworth, Gloucester had forced a change in the details. Originally the landowners whose lands was confiscated had to pay a fine before getting them back. Gloucester (helping out his friends and former conspirators) arranged it so that the men could get their land back first and then would be able to generate the income needed to pay the fines to the king.

The Dictum was publicly announced on 31 October 1266. The rebels in Kenilworth Castle held out until their supplies ran out in December. Gloucester still felt sympathetic to those who had been disinherited and had to repay the king. He decided that he would become the champion of the oppressed (although they'd brought it on themselves), and in April 1267 he changed loyalty again from King Henry to himself.

He brought an army to London and occupied it, as a prelude to acting as king. Prince Edward and the papal legate Ottobuono de' Fieschi (later Pope Adrian V) entered into negotiations and resolved by June that Gloucester should stay in his lane.

Gloucester was so reviled by some for his shifting alliances that in the Douce Apocalypse (see illustration), an illuminated manuscript made before 1275, Gloucester's arms are seen supporting the forces of Satan.

The Second Barons' War was concluded after a few more small events. Prince Edward rounded up the last of the rebels who were at the Isle of Ely. The barons got some of their wishes after all when Parliament met in November 1267 and produced the Statute of Marlborough in which (among other things) several of the Provisions of Oxford were implemented. This seemed to satisfy all sides; the remainder of King Henry III's reign was free of civil dissent.

There was one more casualty of the Second Barons' War—at least that is the story—which I will share with you tomorrow.

The Dictum of Kenilworth, Part 1

The end of the Second Barons' War required closure and reconciliation, and it came in the Dictum of Kenilworth, named for the castle in which the last rebels held out against royalist assault until Henry took a more diplomatic approach to ending the hostility.

The Dictum was put together by a commission, created by Parliament, comprising three bishops and three barons. Those six selected an additional bishop, two earls, and three additional barons. Participants included a few names we've run into before: Gilbert de Clare, 7th Earl of Gloucester, and John Balliol. They were told to come up with a plan by All Saints' Day (1 November). They announced their solution on 31 October 1266.

The chief aim of the Dictum was for Henry to regain his authority in defiance of the Provisions of Oxford that had been forced on him in exchange for raising the funds he wanted. It asserted his right to appoint his own ministers. He did re-affirm Magna Carta.

The rebels were all land-owning men, and their lands had been confiscated by the Crown. The Dictum offered a pardon for their rebellion and offered to restore their properties to them, but they had to buy them back. The price of purchase would depend on how deeply they were involved in the rebellion.

Was there a fair way to decide what a property was worth? The traditional method was to value it at ten times the value of its annual yield. The king offered them their lands back at only five times the annual yield. Not for everyone, though.

Robert Ferrers, Earl of Derby, who had been vicious in his murder of Jews (considered by the king in England to all be under Crown protection), was charged seven times the value of his lands' annual yields. The commander of Kenilworth Castle, Henry de Hastings, was also charged seven times.

If you had not taken up arms against the king but had been outspoken on the side of the rebels, you were fined at two times the value of the land. If you had been forced to fight by your liege lord you were fined just one year's worth.

This did not go smoothly, however. One of there king's supporters even tried to change his allegiance not long after. I'll explain tomorrow.

Second Baron's War Ends

Simon de Montfort was in control of London in April 1264. Northampton was under siege by supporters of King Henry, and Simon assembled his army to go stop the royalists, but he was too late. Simon then went to Kent to besiege Rochester Castle, held in support of Henry by constable Sir Roger de Leybourne (1215–1271), whose father, also called Roger, was on the side of rebels in the First Barons' War.

Roger was originally on the side of Simon, but changed his mind when he heard of an alliance Simon had made.

Simon decided to make an ally of Llywelyn ap Gruffudd, the Prince of Gwynedd. Wales was England's enemy, and the followers of Simon started to turn on him when he and Llywelyn made peace. The Welsh Marcher Lords, English nobles guarding castles along the Welsh border, were friendly with Henry's eldest son Edward, and rallied around Edward and the royalist cause.

Prince Edward's forces defeated several of Montfort's allies at the Warwickshire market town of Kenilworth, even though the rebels had been bolstered by Welsh forces. Simon was moving across the Severn to join his son's army, and saw an army approaching flying his son's banners. Edward had seized the banners at Kenilworth and was using them to fool the rebels.

They encountered each other at the Battle of Evesham when Simon—who was hemmed on three sides by the River Avon—realized too late that he had been fooled and attempted a foolish uphill charge against a superior force. Edward had appointed a dozen men to avoid direct fighting in the encounter and search specifically for Simon. Having been located, Simon was stabbed in the neck by Roger Mortimer, 1st Baron Mortimer. The royalists attacked the corpse, cutting off his head, ripping out his intestines, cutting off his testicles and hanging them on his nose, etc. His hands and feet were cut off and sent to various parts of England as a sign of the consequences of treason. (The illustration is of Simon's body being mutilated on the battlefield.)

Fighting continued, but eventually the royalists won. There are two follow-ups to offer: the Dictum of Kenilworth between Henry and the rebels, and the story of Simon's niece by marriage who was Henry's daughter, Margaret of England. We'll cover Kenilworth tom arrow and Margaret the next day.

The Battle of Evesham

Evesham Abbey had existed for about five and a half centuries by the time Henry III was captured by Simon de Montfort at the Battle of Lewes in 1264. Montfort was at the head of a group of barons who felt Henry was too irresponsible as a monarch, but as Montfort introduced reforms that gave Parliamentary representation to the lower classes, the nobles started to turn on him. Evesham would be the setting for Montfort's defeat and Henry's return to power.

In 1265, Henry's son Edward was released from captivity "on parole." Those loyal to Henry began to focus on helping Edward as Montfort's popularity continued to wane after the powerful Earl of Gloucester, Gilbert de Clare, stopped supporting him. Also, de Montfort made an alliance of convenience with Llywelyn ap Gruffyd, Prince of Wales—mentioned here as "Llewelyn the Last"—which proved an unpopular move with his remaining English supporters.

Clare joined forces with Prince Edward, and together they moved to occupy Worcester. Montfort gathered his army and marched to Wales to add Llewelyn's troops. Unfortunately, while Montfort was in Wales, Edward and Clare expanded the territory over which they had control. In early August, the two armies met near Evesham Abbey, with Edward's larger force trapping Montfort's in a loop of the River Avon and blocking his only chance of escape.

Montfort was, in fact, keeping Henry with him for security. Henry came close to being killed in the cross-fighting, but the battle ended quickly once Simon de Montfort was killed and mutilated by Edward's forces. His troops were chased and cut down without mercy. Henry was restored to the throne and held a Parliament the following month in which those who turned on him were disinherited. Ultimately, after some more military engagements between the two sides, Henry's Dictum of Kenilworth  offered the nobles a chance to regain their former estates via payments to the Crown. Years later, Edward would become King Edward I.

Criminal Intent

When Henry I (1068-1135) was king of England, the rule of the law was simple: someone had to pay for a crime. The philosophy was "who sins unwittingly shall knowingly make amends." This was a few decades into Norman rule in England, but it mirrored the previous Anglo-Saxon law as well: someone had to be responsible if a wrong had been committed. In fact, the law under King Cnut (985-1035) demanded that even an infant who broke a cup was guilty as if he were an adult acting deliberately. (Remember the importance of the wergild to pre-Norman England.) At least Henry's law allowed the very young and the insane to be considered innocent, being not in their right minds. Accidental injury was still injury, however, until a legal expert came forward who tried to change that.

Henry Bracton (1210-1268) was a jurist who worked hard to codify and update English law, using the well-developed Roman legal system as his guide. His four-volume De Legibus et Consuetudinibus Angliæ (On the Laws and Customs of England) informed much of English law afterward, even though he didn't finish it (I'll explain why shortly). He had a lot to say about the practice of seeking Sanctuary in a church, about "writs of appeal," and murder fines and dying intestate. But what we are looking at today is the concept of mens rea.

Mens rea, Latin for "guilty mind," was considered by Bracton to be a necessary element of a crime, as opposed to just an actus reus (guilty act). Just as Bracton insisted that stealing required an intent to steal, so the attitude of the law to killing must reflect the agent's intent to kill:

the crime of homicide, be it either accidental or voluntary, does not permit of suffering the same penalty, because on one case the full penalty must be exacted and in the other there should have been mercy. [De Legibus]

This was a significant change, and made a harsh law more reasonable. The fact that a felony in modern jurisprudence requires intent starts with Bracton's move away from a strictly "mathematical," eye-for-an-eye approach to punishment.

A page from De Legibus

So why didn't he finish it? Bracton rose far in his career: from being a justice at the age of 35 to being a member of what became the King's Court. But by 1257, something prompted him to quit his position not long before the summoning of the Mad Parliament by Henry III and the unrest that led to the Provisions of Oxford. By quitting, he had to turn in all of his papers, court cases, notes and copies of the law that he had been drawing on to write De Legibus. The timing is suspicious, especially considering the personal cost to him and his life's work. One wonders if he wanted to avoid taking sides, or, if he already had taken a side, who he was afraid of angering most: the king or the Barons.

Whatever the case, he walked away from law and courts for years, becoming a rector in a couple places, then an archdeacon, and finally the chancellor of Exeter Cathedral, in the nave of which he is buried. But in the last year of his life he was drawn into one more court case which, depending upon his reasons for leaving the law just before the second great conflict between a king of England and the Barons, might have been awkward for him. At the end of yesterday's post, the Dictum of Kenilworth  was mentioned, allowing the rebels to make a case to reclaim their estates from their king. Henry Bracton was appointed to the committee that heard their cases and decided the outcome, giving him one last chance to practice law—on behalf of people who had been his colleagues on the King's Court.

Provisions of Oxford

Henry III (1207-1272) spent much of his reign of 56 years dealing with fallout from the reign of his father, King John. For one thing, the Barons who pushed the Magna Carta on John were always looking for ways to increase their power. In 1258, they got their chance.

Henry had fought a military action against Sicily on behalf of Pope Alexander IV, and subsequently was out of money. So he summoned Parliament in the spring of 1258 to discuss a grant of revenue. The Barons agreed, with the provision that Henry would, in exchange, submit to a list of reforms. This Parliament is alternately called the Easter Parliament and the Mad Parliament. Henry (reluctantly) agreed, and on June 10th the 24-man commission created to develop the reforms (half appointed by the king and half by the Barons) submitted its report. The changes within were called the Provisions of Oxford.

Although considered by some to be the first written constitution in England (and the first published in English: copies were circulated to all of England in French, Latin, and Middle English), the Provisions were actually very short-lived, being superseded by the Provisions of Westminster in 1259. (In fact, they were only supposed to exist for 12 years, as a temporary measure while further reforms were being studied and put in place.) As a consequence, we are not sure that we have a complete record of the Provisions, relying instead on references to them found in contemporary and later documents. Still, we know enough to know that they attempted a series of regulations and "checks and balances" in government.

For instance, Parliament was to meet three times a year, not just when the King wanted them. All high officers were to swear loyalty to the king. Many positions (such as the chancellor, the chief justice, the treasurer) were appointments of only one year—helping to prevent the amassing of power and the temptation to long-term corruption—at the end of which the officer was to give an accounting of his actions while in office. A system was put in place for addressing grievances against sheriffs. Sheriffs were to be loyal landholders who would receive no fees for their work, but be subsidized by the exchequer for their expenses.

Ruins of Kenilworth, where it ended

Attempt to curtail royal power persisted, and the conflict see-sawed. Pope Urban IV annulled the Provisions in 1261 and 1262. The Barons restored and reinforced them in 1263, then modified them in 1264. Finally, the Barons took over England in 1264, Henry defeated them at the Battle of Evesham in 1265 and killed their leader, Simon de Montfort; some Barons held out at Kenilworth, and the siege that started by Henry was curtailed by the intervention of the pope, who suggested reconciliation. The resulting Dictum of Kenilworth allowed the rebels to have their estates back (at prices dependent on how rebellious they had been!), and many of the statutes in the earlier Provisions were overturned. Henry agreed to reconfirm Magna Carta, but the appointment of royal officers was re-recognized as a royal prerogative. The reconciliation between the levels of power lasted through Henry's reign and into that of his son, Edward I (1239-1307).