CHAPTER FORTY-THREE.

Si quis tenuerit de aliqua eskaeta, sicut de honore Wallingfordie, Notingeham, Bolonie, Lancastrie vel de aliis eskaetis, que sunt in manu nostra, et sunt baronie, et obierit, heres ejus non det aliud relevium, nec faciat nobis aliud servicium quam faceret baroni si baronia illa esset in manu baronis; et nos eodem modo eam tenebimus quo baro eam tenuit.

If one who holds of some escheat (such as the honour of Wallingford, of Nottingham, of Boulogne, of Lancaster, or of other escheats which are in our hands and are baronies) shall die, his heir shall give no other relief, and perform no other service to us than he would have done to the baron, if that barony had been in the baron’s hand; and we shall hold it in the same manner in which the baron held it.

This chapter reaffirms a distinction which had been recognized by Henry II. but ignored by John. Crown tenants were divided into two classes, according as their holdings had been originally granted by the Crown, or by some mesne lord whose barony had subsequently escheated. The latter class received preferential treatment from Henry II. for reasons to be immediately explained. The older law of escheats was too vague to prove an effective restraint on royal prerogative; the king, when a fief had escheated to the Crown, might reckon grants made by its former owner as void, refusing to acknowledge as binding upon him the titles of the sub-tenants, treating all sub-tenancies as wiped out by the mere fact that their lord’s fief had escheated to the Crown. A mesne lord, on the contrary, had no similar rights over the sub-tenants of his tenant who had suffered escheat.

The king usually mitigated in practice the full severity of this theory, confirming as of grace, or from motives of policy, or in return for money, claims which he refused to admit as matter of right. The tenants of escheated baronies were accepted as tenants _in capite_ of the Crown.[890] Not only so; but Henry II. did not allow them to be prejudicially affected by the change. The king would only take from them those services and feudal dues which they had been wont to render to the lord of the barony previous to its escheat. This just and lenient policy explains the origin of the division of royal tenants into two classes; tenants who held of Henry _ut de corona_, and tenants who held of him _ut de escaeta_, _ut de honore_, or _ut de baronia_ (phrases used synonymously).[891] In respect of such obligations as were heavier for ordinary Crown tenants than for tenants of mesne lords, holders of Crown fiefs _ut de escaeta_ were placed on the more favoured footing. Two illustrations may be given. While tenants _ut de corona_ under Henry II. had to pay large and arbitrary reliefs, those _ut de escaeta_ paid no more than 100s. per knight’s fee.[892] Nor was their obligation of “suit” (or attendance at the feudal court of the lord of the fief) to be increased. “The tenants of any honour or manor which had come by escheat to the Crown, were not suitors of the Curia Regis, but of the court of the honour or manor which had so escheated.”[893]

Footnote 890:

Royal clemency in this respect could not be relied on by the sub-tenants of _small_ escheated fiefs (not reckoned as honours or baronies). This seems to be the opinion of Madox, _Baronia Anglica_, 199: “If a fee holden of the Crown _in capite_ escheated to the king and was not an Honour or Barony, then such fee did not (that is to say, I think it did not) vest in the Crown in the same plight in which it was vested in the said tenant _in capite_.” Cf. also _Ibid._, 203.

Footnote 891:

See Madox, _Baronia Anglica_, 169–171; also Pollock and Maitland, I. 261, and authorities there cited.

Footnote 892:

See _Dialogus_, II. x. F, and _Ibid._, II. xxiv. The same rule applied to sub-tenants of baronies in wardship (which was analogous to temporary escheat). For example, when the see of Lincoln was vacant, and therefore in ward to the Crown in 1168, the heirs of sub-tenants paid to Henry only what they would have paid to the bishop; one giving £30 for six fees, and another 30 marks for four. See _Pipe Roll_, 14 Henry II., and cf. _supra_, c. 2. In the matter of scutage, also, a distinction was recognized: while tenants _ut de corona_ might be compelled to serve in person without an option, crown tenants _ut de honore_ (and a _fortiore_ sub-tenants also) might claim exemption on tendering scutage. See case of Thomas of Inglethorpe in 12 Edward II., cited by Madox, _Baronia Anglica_, 169–171.

Footnote 893:

_Report on the Dignity of a Peer_, I. 60.

John ignored this distinction, extending to tenants _ut de escaeta_ the more stringent rules applicable to tenants _ut de corona_. Magna Carta reaffirmed the distinction; and, not content with enunciating a general principle, made two particular applications of it: neither reliefs nor services of former tenants of baronies were to be augmented by reason of the fact that such baronies had escheated to the Crown.[894] Henry III.’s Charter of 1217 emphasized a third application of the general rule, declaring that he would not, by reason of an escheated barony, claim escheat or custody over the sub-tenants of that barony.[895] To understand this concession, it must be remembered that under Henry III., as under Henry II., sub-tenants of baronies were still liable to have their titles reduced through the reduction by escheat of the title of their lord; while sub-tenants of those who were themselves sub-tenants were not exposed to a similar mischance by the escheat of their immediate lord. Here also the position of Crown fiefs _ut de escaeta_ was to be assimilated to that of fiefs of mesne lords, and differentiated from that of Crown fiefs _ut de corona_. Sub-tenancies of escheated baronies were not to be wiped out, but to subsist, and the Crown (or its grantee) would take the escheat subject to all liabilities to, and rights of, sub-tenants.

Footnote 894:

The need for this special reference to relief is not, at first sight, obvious, since c. 2 of Magna Carta, by forbidding John to exact from Crown tenants of either class the arbitrary sums taken by his father, would seem to have already secured them from abuse. Probably, however,