June 2012 – Downfall and punishment of Robert de Ros

The downfall and punishment of Robert de Ros

David Carpenter, Co-Investigator

In the course of 1254-1255, some very disturbing news began to reach King Henry III. It was about the treatment of his daughter, Margaret. In 1251, at the age of eleven, she had married the ten-year-old King Alexander of Scotland. King Henry had appointed as their guardians two Anglo-Scottish nobles. One of these was John de Balliol, lord of both Barnard Castle in Northumberland and part of Galloway. The other was Robert de Ros, a grandson of King William the Lion, who was lord of Wark on the Anglo-Scottish border and of Sanquhar in Nithsdale. Margaret was unhappy. She was being kept in the gloomy castle of Edinburgh and prevented from sleeping in the same bed as her husband. Henry, and his queen, Eleanor of Provence, were doting parents. Eleanor, according to Matthew Paris, ‘desired most ardently the safety and prosperity of her daughter, as she did that of [Alexander] her husband, whom she loved as an adopted son.’[1] Henry felt exactly the same way. Nothing was more calculated to cause alarm than news of Margaret’s mistreatment. The result was Henry’s only visit to Scotland, the complete remodelling of Alexander’s minority government, and the savage punishment of Balliol and Ros. The case of Balliol has been well discussed by Amanda Beam in her recent book on the Balliol dynasty.[2] Ros’s fall, by contrast, has not been examined in detail, although it was he who bore the brunt of Henry’s fury. His treatment raises interesting questions about the legality of royal conduct. On the face of it, Henry seems convicted of the kind of lawless act of force and will (vis et voluntas), of which his Angevin predecessors often stood accused, and which Magna Carta was designed to stop.[3] This naturally has relevance to the political situation as the great revolution of 1258 approached. It also raises questions of contrast and comparison with Scotland. Could kings of Scotland bring their nobles down as effectively as Henry did Ros and Balliol or was their vis et voluntas of a much more limited kind? And how was the treatment of the pair regarded north of the border? Was it seen as a normal act of royal power or as an awful warning of what might happen if ever Scotland joined the English state?

There appears to be no record evidence bearing on the appointment of Ros and Balliol, following Alexander and Margaret’s marriage in December 1251. When Matthew Paris first wrote about the wedding (probably not long afterwards), for his Chronica Majora, he did not mention them. Indeed, he named as guardians of the queen two household knights, Stephen Bauzan and Robert Norensis, while adding that Henry also promised to send ‘a faithful and wise counsellor who might provide for the affairs of the king and queen with the chief men of the kingdom’. It was in a later emendation to this chapter, made quite probably in the light of the events of 1255, that he identified Robert de Ros as the person given custody of the queen.[4] It was likewise only in 1255 itself that he stated specifically that the guardianship (tutela) of king and queen had been committed to Ros and Balliol.[5] Paris, however, was not wrong in his statements, for record evidence, as we will see, shows that Ros and Balliol had some special responsibility for the welfare of the queen, and were also members of the king of Scotland’s council.

The first sign that Henry was becoming disturbed about events in Scotland comes in August 1254 when he was out in Gascony. In that month he suddenly despatched orders to Ros and Balliol commanding them, ‘in the faith in which they are held to the king’, and on pain of severe punishment, to withdraw entirely ‘from the council of the king of Scotland’.[6] There can be little doubt that Henry was acting here on the information or misinformation of Alan Durward. Durward had been ousted by his Comyn enemies from the justiciarship of Scocia at the time of the 1251 marriage, and was to recover the office after Henry’s intervention in 1255. Durward had travelled out to Gascony with Queen Eleanor in the summer of 1254, and around the time of the letters to Balliol and Ros, was given an annual fee of £50 a year by the king.[7] Since Henry’s letter said nothing specific about the king and queen, it may be that Durward’s accusations related to Ros and Balliol’s general role as councillors, although one cannot be sure. Whatever the case, Henry, as so often, changed his mind since Ros and Balliol, for the time being, remained in place.

For the next stage in the story, in which Margaret for the first time features, we are indebted to Matthew Paris. Under the year 1255, he tells how Queen Eleanor had sent her physician, Master Reginald of Bath, to look after her daughter’s welfare. He found her in Edinburgh castle, pale and depressed, and blamed her (unnamed) custodians for her plight. Soon after this, Reginald fell terminally ill (poisoned he believed by the Scots), but on his death bed he wrote to the king and queen about their daughter’s appalling treatment. There is no reason to disbelieve at least the gist of this story, and there is indeed record evidence for Reginald’s death which had taken place by 21 March 1255.[8] Two months later, in May 1255, Henry probably received further disturbing news, for both Alan Durward and his ally David Lindsay (almost certainly ousted as justiciar of Lothian in 1251) seem to have been at court.[9] It was around this time that Henry cancelled his plans to visit his new house at Gillingham in Dorset, and began to think he would have to go north instead.[10]

Initially, Henry moved slowly, probably unclear of the situation, perhaps hoping Margaret might be brought south. For most of June he was at Woodstock before progressing to his little-visited houses in Northamptonshire where, at Geddington, he and Eleanor ‘took venison as they wished’ in the park, a rare glimpse of them hunting.[11] The couple then moved to Nottingham where they stayed from 17 July to 2 August before travelling on northwards. It was at Nottingham, according to Matthew Paris, that Henry received the accusations against Ros and Balliol.[12] Probably this was the result of a dramatic and daring mission carried out by the earl of Gloucester and John Mansel. Paris tells how the two of them went to Scotland and managed to enter Edinburgh castle, disguised as menial servants of Robert de Ros. [13] That shows, of course, that Ros was in command of the fortress and thus the persons of the king and queen. Having made their entry, Gloucester and Mansel let in men-at-arms supplied by Patrick, earl of Dunbar.[14] With the fortress secured, Margaret now poured out her tearful story. She felt incarcerated in the castle, a sad and solitary place by the sea, out of sight of green fields and lacking healthy air. Queen Eleanor herself worried about the quality of air and this must have struck an especial chord.[15] Margaret added that she could not choose her own handmaidens and was denied sexual relations with her husband. This Mansel and Gloucester remedied at once by placing the couple together in the same bed.

We now turn from the general course of the events to Henry’s moves against Robert de Ros. The first of these was on 4 August 1255. On that day, in a letter to Ros sent from Warsop in Nottinghamshire, Henry declared that he was coming north to see Alexander and Margaret.[16] Consequently, Ros was ordered to surrender his castle of Wark to the sheriff of Northumberland so that the king’s wines could be stored there. The implication was that Henry intended to stay at Wark himself, which indeed he did. Henry added that, while he was challenging Ros’s legal title to the castle, its surrender would be without prejudice, and it would be returned when the king had finished his business ‘in those parts’. The letter was curiously balanced, presumably intentionally so. On the one hand, it made no criticism of Ros, and indeed indicated that the king was coming to see Alexander and Margaret simply because he had not seen them for a long time, and longed to do so. On the other hand, there was a threat both in the intention of seeing the king and queen (for what, might they say?) and in the lawsuit for possession of Wark. This is the first heard of such a plea, and it had surely been got up as a way of attacking Ros. The basis of the claim appears unknown, but it probably related to the division of the family patrimony which had seen Robert, a younger son, get Wark, while his elder brother, William inherited Helmsley in Yorkshire. Back in 1227 Henry had actually confirmed the charter which had given Ros Wark, but this was while (as he would have said), he was under the control of the justiciar, Hubert de Burgh.[17] There were good reasons to regret what had happened. Under the arrangements, Robert de Ros held Wark not direct from the king but from his family’s senior line. Consequently, it was the senior line, not the king, which would control Wark during any minority. It was just this kind of thing, ‘bringing grievous loss and unendurable damage to the crown and royal dignity’, that Henry III sought to prevent by legislation in 1256.[18] In 1255, the combination of tact and pressure did the trick and Ros surrendered Wark without fuss. Henry acknowledged its receipt in a letter on 28 August, sent from Newcastle-on-Tyne, and once again stated that Ros would suffer no prejudice as a result.[19] That, however, a heavy cloud hung over Ros is clear from the letter of 4 September which gave him a safe conduct to come to court. No one in ordinary circumstances would have needed that.[20] Meanwhile, the king was also moving against Balliol. On 18 August he was summoned to court and told to surrender his custody of Carlisle castle.[21] His situation was aggravated by another transgression, as revealed by Amanda Beam.[22] This was his outrageous attack in August 1255 on the men of the bishop of Durham in the course of a dispute over an advowson.

These measures against Ros and Balliol, taken in August and September 1255, are the last record evidence of the king’s actions until well into the following year. The Dunstable annals say that the king impleaded both Ros and Balliol in London, and accused them of many transgressions.[23] That some legal action was brought against Balliol is clear from the conclusion of the affair. In August 1257, he fined in £500 for admission into the king’s grace and for remission of any actions against him ‘by occasion of his trespasses against Alexander king of Scotland or also (aut etiam) Margaret, daughter of the king his consort, concerning which the king caused him to be impleaded in his court’.[24] Paris opined that one reason for Henry moving against Balliol was to get hold of his fabled wealth.[25] The fine of £500 was certainly large, and the great bulk of it was paid. Balliol made an immediate cash down contribution of £100 into the wardrobe. Then in March 1258, he paid in another £266, both towards the fine and a 100 marks (£66 13s. 4d.) amercement (fine in modern parlance) imposed on him for convictions for disseisins and a false claim on the 1256 eyre in Northumberland.[26] The £200 balance of the two debts was then pardoned. The king had, therefore, in three years extracted £366 from Balliol, a striking indication of his power when he chose to exercise it.

If Balliol’s treatment was severe, Ros’s, on the face of it, was far worse. The Dunstable annals, as we have seen, says that both Ros and Balliol were impleaded by the king in London and accused of many transgressions. Paris states that Ros was ‘strictly’ summoned to come prepared to answer the complaints against him in ‘the court of the king of England’. At first, ‘fearful’, he withdrew, only afterwards ‘humbly’ (humiliter) to appear. In a second version of the same episode, Paris has Ros promising ‘under a certain form’ to come to the king’s court ‘to answer concerning everything’. ‘However’, he added, ‘the king, by the counsel of his fair-weather (fortunalium) friends caused Robert’s lands to be seized and placed in the harshest custody’.[27] It may be that Ros’s first misdemeanor was failing to come to court under the safe conduct issued him in September 1255. Perhaps he also failed to turn up at the parliament held at Westminster in that October. There, according to another strand from Paris, Henry had a furious exchange with Roger Bigod, earl of Norfolk, when the latter spoke up for Ros.[28] In the event, it was not till May 1256 that Ros did appear at court. On 6 May, Henry forgave his having being absent at the start of the Northumberland eyre on 24 April since he had then been on his way to the king ‘to answer to those things the king has against him’.[29]

This itself was a conciliatory gesture, and in fact, despite Paris’s implication to the contrary, at this stage there seems to have been no seizure of Ros’s lands. So much emerges from proceedings at the 1256 Northumberland eyre. On the other hand, one also wonders whether the cases which went against Ros on the eyre, and perhaps also his treatment by the judges, owed something to his disfavoured state. Perhaps his position was somewhat akin to that of the Cistercians in May 1256, following their refusal to contribute to the taxation for the Sicilian enterprise. The sheriffs were to give them ‘common justice which the king wishes to deny to no one’, but were to do them ‘no grace’ without the king’s special order.[30] The Northumberland eyre from which Ros suffered opened at Newcastle-upon-Tyne on 24 April 1256. It was headed by the distinguished and reputable professional judge, Roger of Thirkleby.[31] Two cases were brought against Ros by the prior of Kirkham. One reached no conclusion through Ros’s failure to appear, and the sheriff was ordered to produce him at Carlisle later in the circuit.[32] In the other, the jurors, chosen by consent of the parties, were charged with deciding whether Ros, back in May 1254, had caused two oxen and two horses of the prior to be taken to his castle of Wark, where they were kept until delivered by order of the king. Since Ros was not present at the eyre, his agreement to the jury must have been given either by an attorney or at some prior hearing of the case. It was an agreement which did him no good, for the jurors said that the seizure had indeed been made by Ros’s men on his orders. Accordingly, he was placed in mercy (which meant he was liable to be amerced), and the judges ordered the prior’s damages, which they assessed at £20, to be raised by the sheriff without delay from Ros’s lands and chattels.[33] This procedure with regard to damages was quite normal, but damages of £20 for the detention of two oxen and two horses do seem on the large side.

The prior of Kirkham was a powerful opponent, but Ros also lost two cases to men seemingly of much less consequence. One of these may have been a disaffected servant, Ralph de Pratis, since he claimed he should be paid £2 a year from Ros’s chamber. The jurors agreed that he should be. The judgement, therefore, was that Ralph should recover the payment, plus £8 10s. worth of arrears. Ros himself was ‘in mercy’ for ‘unjust detention’.[34] In the other case, Simon son of Roger of Horsley, accused Ros of disseising him of two bovates in Pressen just south of Wark. Robert of course did not come, but since this was an assize of novel disseisin his absence could not delay the case. Perhaps for that reason, he was represented by his bailiff, Robert of Cargo (probably Cargo north of Carlise). Cargo, however, was able to say nothing to prevent the jurors convicting Robert of disseisin. The judgement accordingly was that Simon son Roger should recover possession, plus damages of £2, while Robert again was ‘in mercy’.[35]

All these cases came under the civil pleas business of the eyre. There was also a case under the pleas of the crown, in which Robert of Cargo again featured. A local jury testified that, as Ros’s constable of Wark castle, he had arrested one William de Hilderescalf on the royal road between Pressen and Learmouth, and then imprisoned him in the castle for two days until released by William de Latimer, a local landholder and at this time sheriff of Yorkshire. Afterwards, the record continues, the jurors said on oath that Robert de Ros, although informed of the arrest, did not wish to make emends for it. The judgement, therefore, was that Robert was once again ‘in mercy’ and ‘the constable’ (Robert of Cargo) ‘is to be arrested’. [36]

The pipe rolls (recording the annual audit of money owed the crown), and Ros’s eventual pardon, reveal that his convictions for unjust detention and imprisonment, landed him with an amercement of 100 marks, so the same size as Balliol’s.[37] One would like to know more about how both amercements were imposed. Magna Carta laid down that earls and barons were to be amerced by their peers and only according to the nature of the offence (‘secundum modum delicti’).[38] In practice, this was interpreted as meaning amercement either in the court held in the king’s presence (where peers of earls and barons might be in attendance) or by the exchequer, where the chief officials were called barons and were regarded as having baronial status.[39] Technically, Ros (unlike Balliol) was not a baron since he did not hold Wark direct from the crown, but it is likely that he was treated as one.[40] The actual size of the amercements seems large, but it was actually quite common for great men to be saddled with sums of that size, even for quite trivial offences, although often pardons were ultimately forthcoming.[41] It may be, therefore, that while the number of cases going against Ros on the 1256 eyre owed something to his disgrace, there was nothing exceptional in the way he was punished. It may be, but one cannot be sure. The king, as we will see, was quite capable of ignoring judgement by peers and imposing amercements himself. After the revolution of 1258, Ros was pardoned all but £5 of the amercement.[42] Does this represent what Ros’s peers, in the new circumstances, felt was the amount commensurate with his offences?

Whatever the truth here, the amercement Ros suffered for his convictions on the Northumberland eyre pales into insignificance against his punishment for his Scottish offences. We have seen that Ros appeared before the court coram rege in May 1256 to answer the charges against him. Unfortunately the rolls of the court coram rege, like those of the bench at Westminster, are lost between 1255 and 1258, so we have no record of the case. At first, however, things seem to have gone well. Ros, as we have seen, was let off any penalty for failing to appear at the start of the Northumbrian eyre on 24 April on the grounds that he was then on his way to court, where he was due on 30 April. Since the writ explaining this to the judges was issued at Windsor on 6 May, it is clear Ros had turned up and was sufficiently persona grata to secure the concession.[43] Better was to follow. On 12 May, the king, at Ros’s request, ordered the sheriff of Northumberland, William Heron, to restore him to Wark, although this was to be without prejudice to the king’s claims for it.[44]

So far so good, but disaster now followed. Although perhaps not on the scale later suggested. The story, as given in Ros’s eventual pardon, issued by the reform council in November 1259, was as follows. Ros ‘was accused before the king and his council on the charge of causing trouble and vexation to Margaret queen of Scotland, the king’s daughter, while the said Robert was of the council of Alexander, king of Scotland, and being called on that charge was amerced in the sum of 100,000 marks (£66,666) for such trespasses’.[45]

This is a statement as curious as it is extraordinary. It does not claim that the amercement was a product of the king’s will. On the contrary, in saying that Ros was summoned and accused before the king’s council, it implies that it was the council which imposed the amercement. Given the composition of Henry’s council (to which we will return), the amercement could have been imposed by Ros’s peers. Yet its size seems utterly extraordinary and way beyond anything related to Magna Carta’s ‘according to the nature of the offence’. Indeed, there seems to be no precedent for it. Balliol’s fine, as we have seen, was only £500. Under John, the fine made by Matilda de Braose for the lives and limbs of herself, her husband and her family was 50,000 marks, half the size of Ros’s amercement.[46] Otherwise, even the highest amercements and fines for grace which John demanded seem to have been around 1000 marks.[47] Under King Richard, Ros’s father, Robert de Ros, had to pay 1200 marks to recover his lands seized into the king’s hands for allowing a French prisoner to escape.[48]

There is, therefore, room for scepticism as to whether Ros’s amercement was really 100,000 marks. Unfortunately, there is no documentary evidence either to confirm or contradict the statement in the pardon. The debt is not on the pipe rolls and evidently the exchequer was never informed about it, presumably because Henry intended to deal with it himself, and have the money paid direct into the wardrobe. There is, however, evidence from a different source which seems at odds with the astronomical 100,000 marks. The contemporary chronicle of the St Albans monk, John of Wallingford, states under 1256 that ‘Robert de Ros gave the king 1000 marks that the grace of the king might be restored to him’.[49] A fine for the king’s grace is not technically the same thing as an amercement but it seems highly probable that the same impost is being referred to here. Wallingford was a colleague of Matthew Paris, and based his chronicle on Paris’s work, although, as here, he included information not found within it. He belonged, of course, to a school of history at St Albans where the exactions of Henry III were never knowingly understated. In normal circumstances, of course, one would always prefer record to chronicle evidence, but the circumstances in which Ros’s pardon of November 1259 was issued were not normal. The council imposed on Henry III by the reforms of 1258 was governing the realm and very much in the business of deriding Henry’s government.[50] Perhaps, for that reason, it just accepted Ros’s angry claim that he had been amerced 100,000 marks without bothering whether it was actually true. Having said that, it seems unlikely that the statement could have been made without some basis in fact. What happened I would suggest is this: Henry, at Ros’s trial, sought to impose an amercement of 100,000 marks. He was, however, prevented by the council who instead assessed the penalty at the 1000 marks mentioned by John of Wallingford.

This version of events gains some colour from two parallel episodes. In 1241, in a case in the court coram rege, Henry sought judgement on his claim that through the conduct of Gilbert Marshal, earl of Pembroke, he had suffered damage to the tune of 10,000 marks. This claim was dismissed outright by the twenty named magnates and ministers (headed by the archbishop of York, two bishops, and two earls) who were sitting in judgement on the case.[51] The king, they said, had failed to provide any details of his losses. Here, then, it is clear that Henry had wished to impose a huge penalty, and been prevented by his court. The record indeed rather hints that he was acting in an emotional way. ‘The king says that he has been so damaged that he would not wish to have the damage nor the shame for 10,000 marks’. We know of the second case from a writ issued in June 1256, which was enrolled on the fine rolls. It referred to an amercement which the bishop of Bath had lately incurred in the court coram rege for seizing the beasts of the abbot of Glastonbury and unjustly detaining them ‘whereupon the king sent a certain estreat of £100 to the exchequer’. This meant that the king had informed the exchequer of the size of the amercement which it was to collect, namely £100. However, then things changed. ‘Afterwards’, the writ continued, ‘by consideration of the peers of the bishop in the king’s presence (coram rege), the amercement was assessed at 50 marks’. This was now to be paid into the wardrobe, and the exchequer was to quit the bishop of the £100.[52] In this case, therefore, it looks as though the king by an act of will had actually imposed an amercement of £100 and only then been reigned in, so that the amercement was assessed, in accordance with Magna Carta, by the bishop’s peers and at a sum (50 marks) commensurate to the offence.

It may be, therefore, that what happened with Ros is that Henry, even more emotional than with Gilbert Marshal, demanded an amercement of 100,000 marks, only for it to be reduced by his court to 1000 marks. Why though did Henry demand this gigantic sum? One thing which may have aggravated Ros’s offence was his demand to defend himself in a trial by battle rather than suffer the judgement of his enemies, ‘an unwise reply’, as Paris acknowledged.[53] Perhaps this was a reason why things shifted against him after their promising start. But the central offence was clearly his treatment of Queen Margaret. This alone was mentioned in the pardon as the reason for his trial. In preventing the royal couple sleeping together, Ros (again according to Paris’s testimony) justified himself: he was obeying orders and waiting till ‘a certain term which was not yet proved to have come’.[54] Quite probably, this meant he was waiting till Alexander’s fourteenth birthday which fell on 4 September 1255. Beyond that, there may have been conduct which was harder to justify, conduct which while perhaps just insensitive, seemed to Margaret downright cruel. Quite probably she had given her father a long list of complaints. Being confined to Edinburgh castle and being denied her own handmaidens clearly figured in the list.[55] Did Henry regard Ros’s conduct as amounting to treason? Paris says that both he and Balliol were accused of behaving ‘unfaithfully and dishonourably’ (infideliter et inhoneste). Paris also says Ros was accused of a crime for which his life was threatened.[56] If so, the huge penalty which Henry wished to impose becomes more understandable, although still (even on the Braose analogy) wildly excessive.

Although, if we are right, the king’s council reduced Ros’s penalty to 1000 marks, this was still a very large sum, £166 more than the fine made by Balliol. Perhaps the aspersions Ros had cast on his likely judges had won him no friends. Those judges could easily have included men who were Ros’s peers for in May 1256 (beside the king’s Poitevin half brothers), the earls of Cornwall and Gloucester and the curial magnate John fitz Geoffrey were at court, as quite probably were the earls of Norfolk and Surrey, Norfolk’s brother Hugh Bigod and the great marcher baron, Roger Mortimer.[57]

Ros’s amercement brings us on to the final stage of his punishment. There is no evidence that he was deprived again of Wark. It was not till March 1258, with fresh trouble brewing in Scotland, the king demanded its renewed surrender, again promising that no prejudice to Robert should arise from it.[58] Ros’s lands were another matter. Before his trial, as we have seen, these were not apparently in the king’s hands. Afterwards they certainly were. There is every sign, moreover, that Paris and John of Wallingford were right in saying that the lands were ruthlessly exploited, with the chattels and woods found upon them being sold off for the king’s benefit.[59] On 8 July 1256, the sheriff of Northumberland, William Heron, paid into the wardrobe £108 10s. from Ros’s chattels.[60] In September, he was ordered pay all the money arising from Ros’s lands into the wardrobe without delay.[61] At the end of December he was credited with raising £53 6s. 8d., and another £10 soon followed.[62] Later, in 1259, the king pardoned an amercement imposed on Ros’s serjeant, Robert of Cargo, because of ‘the utmost damages and losses of livestock and other property’ he suffered from the king’s bailiffs in Northumberland by reason of the dispute with Robert de Ros.[63] It was not till November 1258 that the king, acting on the instructions of his new counsel, respited all demands made against Ros ‘for the affair of Scotland’ and allowed him to cultivate and profit from his lands without any hindrance from royal officials.[64]

The whole question of seizure of lands into the king’s hands was of course acutely sensitive. Magna Carta, in its most famous clause, had laid down that no free man was to be disseised of his free tenement ‘save by the lawful judgment of his peers or the law of the land’. Henry frequently acknowledged the principal, although sometimes he had to be restrained from acting contrary to it. On the fall of William de Lisle in 1256, his lands were seized. Then, however, writs, authorised by the council and the senior judge Henry of Bath, were issued restoring them to Lisle ‘since it is unjust that he should be deprived of his goods and possessions before he is convicted of the trespass of which he is accused and on which he is prepared to stand to right in the court of the king’.[65] This was not, however, Ros’s situation. He had been convicted in the king’s court. On the other hand, his punishment had been an amercement not forfeiture. Yet it is easy to see how his lands might have come into the king’s hands. Doubtless harsh terms were set for the repayment of the 1000 marks, if any terms were set at all. When Ros failed to meet them, then the sheriff could distrain on his chattels; if that failed, it was lawful to take land into the king’s hands. So much had been acknowledged by Magna Carta. The Charter stipulated that the king and his bailiffs were not to seize land or rent provided the chattels of the debtor sufficed to pay the debt and the debtor was ready to do so.[66] The implication, therefore, was that, if this was not the case, land and rent could be seized.[67] Doubtless Ros was deemed both unwilling and unable to raise the 1000 marks, and so Heron entered his lands and staged the great sell off so graphically described by Matthew Paris and John of Wallingford. The lawfulness of such a procedure would have been reinforced, if Ros had pledged his lands and chattels as security for payment of the debt, as often happened under John.[68] Even Paris acknowledged the seizure was not simply an act of royal will. It had been made ‘by the counsel of [the king’s] fair-weather friends’. None of this happened by accident for Henry was well aware of the power he had through distraint of debts. When Roger Bigod, having spoken up at the October 1255 parliament, asked Henry what could lawfully be done to harm him, Henry had replied that he could seize his corn and cause it to be threshed and sold. He was referring here to Bigod’s large debts for which indeed he then ordered distraints to be made.[69]

It was only with the revolution of 1258 that Ros secured redress. In November 1258 the king’s new council, as we have seen, respited all demands against him and conceded that he could now profit from his lands. Very unusually, the chancery clerk noted on whose authority the resulting letter to the sheriff of Northumberland was enrolled, namely the senior minister Walter of Merton. Evidently he wanted to cover against future recriminations from the king.[70] At the same time, Ros was pardoned all but £5 of the 100 mark amercement for the various offences of which he had been convicted on the 1256 Northumberland eyre.[71] A year later, Ros at last secured a full pardon embodied in royal charter. He was declared to be wholly guiltless of the trespasses alleged against him. The king, accordingly, pardoned him the 100,000 mark amercement, and all the rancour and indignation conceived against him. Finally, the king also released Robert, and his elder brother William, from all action and claim for the castle of Wark ‘considering that the king has no just cause against the said brothers’. The solemnity of the charter was emphasised by its witnesses, namely the justiciar, Hugh Bigod, and nearly all the members of the ruling council of fifteen, some of whom may well have been involved in the original judgement in the first place.[72]

Ros’s treatment was, therefore, much harsher than Balliol’s. His amercement, whatever its precise size, was larger. His lands were seized where Balliol’s apparently were not. The contrast may partly have been because Balliol avoided Ros’s ‘unwise answer’ and was generally more submissive. He was anyway closer to the king. He was in Gascony for the first phase of Henry’s campaign in 1253-1254. He attested a royal charter at court as late as April 1255.[73] That his eventual fine was made at Chester in August 1257, suggests that he had rallied to Henry’s campaign in Wales. That the writ recording the fine was authorised by Fulk Basset, bishop of London, shows he had friends at court. [74] It is also clear that Balliol had been less directly involved with Margaret. Whereas his fine mentions his trespasses against Alexander ‘or also’ Margaret, Ros’s pardon was for his offences against Margaret alone. It was Ros who was in command of Edinburgh castle, not Balliol. Perhaps Balliol’s sins were rather those of omission rather than commission.

Whatever the differences in degree, Henry had certainly demonstrated his power. He had laid low two great Anglo-Scottish barons with little resistance. In the process, in a time of great financial need, he had raised £537, £366 from Balliol’s fine and £171 from Ros’s chattels. Quite probably, for we have no comprehensive records, the amount coming from Ros was much larger.[75] In all this, Henry had certainly shown himself worthy of his father. Indeed, Paris precisely drew the parallel with John’s own treatment of the Northerners.[76] Yet there is also another parallel. ‘Voluntas, meant little except in contrast to lex’, wrote J.C. Holt in a typical aphorism.[77] In other words, an act of will, of ‘voluntas’, was only really opprobrious and challengeable when it broke the law. In fact, as Holt argued, many of John’s oppressive measures did not fall into that category; either there was no law for him to break or he had acted with some colour of due process.[78] Henry, of course, was in a different situation. Thanks to Magna Carta, the law, once vague, was now, in some areas explicit. The relief of an earl and baron was fixed at £100. This was a rule Henry was careful to obey. Yet when it came to the treatment of Ros and Balliol, Henry was not blatantly in breach of the Charter either, at least if we accept that the former’s amercement was indeed 1000 marks. Both men were brought to trial, and Ros may have received judgement by his peers. When it came to the seizure of Ros’s lands, the Charter hardly offered adequate protection. It tried to prevent seizure of lands and rents if the debtor’s chattels sufficed and he was willing to pay, but who was to be the judge of that? Even worse, while the Charter said that the amercements should match the offence, it said nothing at all about the terms on which they should be paid. Conceivably the appropriateness of the amercement could be thought to include the terms, but that was not stated.[79] Henry could certainly claim that, as far as the Charter went, he could demand Ros pay his 1000 marks all at once.

It is difficult to be sure what bearing the treatment of Ros and Balliol had on the revolution of 1258. By then Balliol had already made his peace. He remained conspicuously loyal during the ensuing civil war.[80] Ros’s case was different. He seems to have played no part in the civil war (he was by this time quite elderly), but his complaints in 1258-1259 clearly struck a chord. The reforming council, standing together, was making a point against Henry’s government in proclaiming that the amercement had been an outrageous 100,000 marks. On the other hand, as we have seen, it did not hold the king directly to blame. The pardon, moreover, seems tardy, coming after the new government had been in power for well over a year. Nor was Ros offered any compensation for his losses. One wonders just how much sympathy there was either for him or Balliol, which may explain why no one had lifted a finger in their support, for all Bigod’s bluster. As Marc Morris has pointed out, Bigod’s own relations with Henry III soon straightened out.[81] Indeed, he may well have been present at Ros’s trial. In all this there is also an important contrast with the situation under King John. Under John the kind of treatment meted out to Ros and Balliol was common. Under Henry it was exceptional. In the fine rolls of 1207-1208, there were twelve fines to escape the rancour or regain the benevolence of the king. The total owed was £5580.[82] In the whole of the fine rolls between 1236 and 1257, there appear to be only four comparable fines. Balliol’s, as we have seen, of £500; the clerk Walter de Burgh’s of 400 marks for various transgressions as keeper of the king’s demesnes; Henry of Bath’s fine of 2000 marks for malpractices as a judge; and Peter de Mauley’s of 60 marks for failing to send knights to the 1257 campaign in Wales.[83] When it came to his great men, the revolution was caused much more by Henry III’s incompetence than his oppression.

We began by asking how the treatment of Ros and Balliol played in Scotland and how it compared with how great men might fare there. Unfortunately, the Melrose chronicle narrates the events of 1255 without mentioning either Ros or Balliol.[84] Yet their fate must have been well-known to the Scottish magnates. It certainly did not deter the Comyn faction from seizing hold of the king at the end of October 1257. Early in December, Henry was planning to set out for Scotland all over again.[85] Earlier in the year, while he was campaigning in Wales, Queen Eleanor had already made a nervous journey to Nottingham, from where, if needed, she could go further north.[86] Did kings of Scotland bring down men in the same way as King Henry, with the same use of power but also with the same vestige of due process? This is not an easy question to answer given the state of the evidence. The surviving abstracts of the Scottish financial accounts for the 1260s show fines, quite probably for the king’s benevolence, being paid by the earls of Sutherland, Caithness and Ross. Unfortunately the total amounts are not given. Those of the Sutherland and Caithness were attermed at what seem to be reasonable rates of payment, respectively £20 and 50 marks a year.[87] Another entry shows that the land of Covington was in the king’s hands for a fine of 100 marks, which presumably means for failing to pay the fine.[88]

There are also some fascinating parallels between Ros’s downfall and that of Walter Bisset in 1242, although, of course, Bisset had incurred the anger not of the king but of his fellow nobles. Bisset, like Ros, initially offered trial by battle rather than suffer the judgement of his enemies. Whereas, however, the judgement Ros feared was that of his enemies at court, Bisset was asked by the earls to entrust himself to ‘the oaths of his fellow countrymen and the judgement of the neighbourhood (vicinia)’.[89] This, so he thought, would amount to handing himself over to ‘the malice of rustics’. Had there been a Scottish Magna Carta, he might have appealed to its chapter on judgement by peers. Perhaps, he did appeal to the principle because, in the end, it was by his peers that he seems to have been judged. It was ‘by the judgement and advice of all the nobles’ that he and his associates suffered forfeiture and outlawry.[90] Of course, the key question in all this is whether kings of Scotland broke men with the frequency of King John or the infrequency of King Henry. One’s impression is that the latter is nearer the case. In that sense both monarchies were equally restrained. The difference is that no Magna Carta was needed in Scotland to bring that restraint about.

Another point of comparison or contrast concerns the experiences of Ros and Balliol before the justices in eyre in Northumberland in 1256. We have seen the cases which went against Ros. Balliol, too, was in similar difficulties and was convicted of two disseisins, hence his 100 mark amercement. In both cases the complainants were people of much lower social status. In one case, a group of four people, including a Thomas the Serjeant, accused Balliol of disseising them of common pasture at Shildon belonging to their free tenement in Corbridge. Common pasture in Shildon was also at issue in the second case, where the complainants were John fitz John, his brother Richard and Alice his wife, who shared a knight’s fee in Thornbrough. In this case, having been convicted, Balliol’s fellow defendants (who were probably his men), brought an action of attaint against the trial jury, only for twenty-four fresh jurors to uphold the original verdict, hence the reason why Balliol’s amercement also covered a false claim.[91] Was there any way that the great men of Scotland could be harried in similar fashion by cases going against them (sometimes cases brought by men of small account) on the eyres of the justiciar in Scotland? Or had they taken care, when the procedures of the common law were introduced in Scotland, to make quite sure that would not happen?[92] These are some of the questions which may be worth taking forward in the Breaking of Britain Project.