PART II.

FEUDAL GRIEVANCES AND MAGNA CARTA.

I. The Immediate Causes of the Crisis.

Many attempts have been made to explain why the storm, long brewing, broke at last in 1214, and culminated precisely in June of the following year. Sir William Blackstone[60] shows how carefully historians have sought for some one specific feature or event, occurring in these years, of such moment as by itself to account for the rebellion crowned for the moment with success at Runnymede. Thus Matthew Paris, he tells us, attributes the whole movement to the sudden discovery of Henry I.’s charter, long forgotten as he supposes, while other chroniclers agree in assigning John’s inordinate debauchery as the cause of the civil dissensions, dwelling on his personal misdeeds, real and imaginary. “Sordida foedatur foedante Johanne, gehenna.”[61] Blackstone himself suggests a third event, the appointment as Regent in John’s absence of the hated alien and upstart, Peter des Roches, and his misconduct in that office.

Footnote 60:

_The Great Charter_, p. vii.

There is absolutely no necessity to seek in such trivial causes the explanation of a great movement, really inevitable, the antecedents of which were deeply rooted in the past. The very success of Henry Plantagenet in performing the great task of restoring order in England, for effecting which special powers had been allowed to him, made the continuance of these powers to his successors unnecessary. From the day of Henry’s death, if not earlier, forces were at work which only required to be combined in order to control the licence of the Crown. When the battle of order had been finally won—the complete overthrow of the rebellion of 1173 may be taken as a crucial date in this connection—the battle of liberty had, almost necessarily, to be begun. The clamant problem of the hour was no longer how to prop up the weakness of the Crown; but rather how to place restrictions on its unbridled strength.

Footnote 61:

Several of the most often-repeated charges of personal wrongs inflicted by King John upon the wives and daughters of his barons have been in recent years refuted. See Miss Norgate, _John Lackland_, p. 289.

We need not wonder that the crisis came at last, but rather why it was so long delayed. Events, however, were not ripe for rebellion before John’s accession, and a favourable occasion did not occur previous to 1215. The doctrine of momentum accounts in politics for the long continuance of old institutions in a condition even of unstable equilibrium; an entirely rotten system of government may remain for ages until at the destined moment comes the final shock. John conferred a great boon on future generations, when by his arrogance and by his misfortunes he combined against him all classes and interests in the community.

The chief factor in the coalition which ultimately triumphed over John was undoubtedly the baronial party led by those strenuous nobles of the north, who were, beyond doubt, goaded into active opposition by their own personal and class wrongs, not by any altruistic promptings to sacrifice themselves for the common good. Their complaints, too, as they appear reflected in the imperishable record of Magna Carta, are mainly grounded on breaches of the technical rules of feudal usage, not upon the broad basis of constitutional principle.

The feudal grievances most bitterly resented may be ranged under one or other of two heads—increase in the weight of feudal obligations and infringement, of feudal jurisdictions. The Crown, while it exacted from its tenants the fullest measure of services legally exigible, interfered persistently at the same time with those rights and privileges which had originally balanced the obligations. The barons were compelled to give more, while they received less.

With the first group of baronial grievances posterity can sympathize in a whole-hearted way, since the increase of feudal obligations inflicted undoubted hardships on the Crown tenants, while the redress of these involved no real danger to constitutional progress. One and all of the grievances included in this first group could be condemned (as they were condemned by various chapters of Magna Carta) without unduly reducing the efficiency of the monarchy which still formed under John, as it had done under William I., the sole source of security against the dangers of feudal anarchy. Posterity, however, cannot equally sympathize with the efforts of the barons to redress their second class of wrongs. However great may have been the immediate hardships inflicted on members of the aristocracy by the suppression of their feudal courts, lovers of constitutional progress can only rejoice that all efforts to restore them failed. Those clauses of Magna Carta which aimed at reversing the great currents flowing towards royal justice, and away from private baronial justice, produced no permanent effect, and posterity has had reason to rejoice in their failure.

Each group of feudal grievances—those connected with the increase of feudal obligations, and those connected with the curtailment of feudal immunities—requires special and detailed treatment.[62] To each class a double interest attaches, since the resentment aroused by both formed so vital an element in the spread of that spirit of determined resistance to King John, which led to the winning of Magna Carta, and since, further, an intimate knowledge of the exact nature of these grievances throws a flood of light on many otherwise obscure clauses of the Great Charter, and enables us to estimate how far the promised remedies were ultimately carried into practice in later reigns.

Footnote 62:

See _infra_ the two sections (II. and III.) immediately following.

The grievances of the barons, many and varied as they were, were not, however, the only wrongs calling for redress. It is probable that the baronial party, if they had acted in isolation from the other estates of the realm, would have failed in 1215 as they had already failed in 1173. If the Crown had retained the active sympathy of Church and common people, John might have successfully defied the baronage as his father had done before him. He had, on the contrary, alienated from the monarchy all estates and interests, and had broadened the basis of opposition to the throne by ill-treating the mercantile classes and the peasantry who, from the reign of William I. to that of Henry II., had remained the fast, if humble, friends of the Crown. The order-loving tradesmen of the towns had been previously willing to purchase protection from Henry at the price of heavy, even crushing taxation; but when John continued to exact the price, and yet failed to furnish good government in return, his hold on the nation was completely lost. So far from protecting the humble from oppression, he was himself the chief central oppressor, and he let loose, besides, his foreign officers and favourites as petty local oppressors in all the numerous offices of sheriff, castellan, and bailiff. Far from using the perfected machinery of Exchequer, Curia, and local administration in the interests of good government, John valued them merely as instruments of extortion and outrage—as ministers to his lust and greed.

The lower orders were by no means exempt from the increased taxation which proved so galling to the feudal tenants. When John, during his quarrel with Rome, repaid each new anathema of the Pope by fresh acts of spoliation against the national Church, the sufferings of the clergy were shared by the poor. In confiscating the goods of the monasteries, he destroyed the chief provision for poor-relief known to the thirteenth century. The alienation of the affections of the great masses of lower-class Englishmen thus effected was never wholly undone, even by the reconciliation of John with the Pope. Notwithstanding the completeness and even abjectness of John’s surrender to Rome, he took no special pains to reinstate himself in the good graces of the Church at home. Innocent, secure at the Lateran, had issued his thunderbolts; and John’s counter-strokes had fallen, not on him, but on the English clergy—from the prelate to the parish priest, from the abbot to the humblest monk. The measures taken, in 1213 and afterwards, to make good to these victims some part of the heavy losses sustained, were quite inadequate. The interests of the Church universal were often widely different from those of the national Church, and such diversity was never more clearly marked than in the last years of the reign of John.

After 1213, John’s alliance with Rome brought new dangers in its train. The united action of two tyrants, each claiming supreme powers, lay and spiritual respectively, threatened to exterminate the freedom of the English nation and the English Church. “The country saw that the submission of John to Innocent placed its liberty, temporally and spiritually, at his mercy; and immediately demanded safeguards.”[63]

Footnote 63:

Stubbs, _Select Charters_, 270.

This union of tyrants naturally led to another union which checkmated it, for the baronial opposition allied itself with the ecclesiastical opposition. The urgency of their common need thus brought prelates and barons into line—for the moment. The necessary leader was found in Stephen Langton, who succeeded in preventing the somewhat divergent interests of the two estates from leading them in opposite directions.

All things were thus ripe for rebellion, and even for _united_ rebellion; an opportunity only was required. Such an opportunity came in a tempting form in 1214; for the King had then lost prestige and power by his failure in the wars with France. He had lost the confidence of his subjects by his quarrel with Rome, and he failed to regain it by his reconciliation. He had lost the friendship of the national Church. His unpopularity and vacillating nature had been thoroughly demonstrated. Finally he had himself, in 1191, when plotting against his absent brother Richard, successfully attacked and ousted the Regent Longchamp from office, thus furnishing an example of rebellion, and of successfully concerted action against the central government.

The result was that, when the barons—the wildest spirits of the northern counties taking always the lead—began active operations at a juncture of John’s fortunes most favourable to their aspirations, not only had they no opposition to dread from churchman or merchant, from yeoman or peasant, but they might count on the sympathy of all and the active co-operation of many. Further, John’s policy of misrule had combined against him two interests usually opposed to each other, the party of progress and the party of reaction. The influence of each of these may be clearly read in the various chapters of Magna Carta.

The progressive party consisted mainly of the heads of the more recently created baronial houses, men trained in the administrative methods of Henry II., who desired merely that the system of government they knew should be properly enforced and carried out to its logical conclusions. They demanded chiefly that the King should conduct the business of the Exchequer and Curia according to the rules laid down by Henry II. Routine and order under the new system were what this party desired, and not a return to the unruly days of Stephen. Many of the innovations of the great Angevin had now been loyally and finally accepted by all classes of the nation; and these accordingly found a permanent resting-place in the provisions of the Great Charter. In temporary co-operation with this party, the usually rival party of reaction was willing to act for the moment against the common enemy. There still existed in John’s reign magnates of the old feudal school, who hoped to wrest from the weakened hand of the King some measure of feudal independence. They had indeed accepted such reforms as suited them, but still bitterly opposed many others. In particular, they resisted the encroachments of the royal courts of law which were gradually superseding their private jurisdictions. For the moment, John’s crafty policy, so well devised to gain immediate ends, and so unwise in the light of subsequent history, combined these two streams, usually ready to thwart each other, into a united opposition to his throne. Attacked at the same moment by the votaries of traditional usage and by the votaries of reform, by the barons, the trading classes, and the clergy, no course was left him but to surrender at discretion. The movement which culminated at Runnymede may thus best be understood as the resultant of a number of different but converging forces, some of which were progressive and some reactionary.

II. The Crown and Feudal Obligations.

Among the many evils calling loudly for redress in England at the commencement of the thirteenth century, none spoke with more insistent voice than those connected with feudal abuses. The objection of the northern barons to pay the scutage demanded on 26th May, 1214, was the spark that fired the mine. The most prominent feature of the Charter is the solicitude everywhere displayed to define the exact extent of feudal services and dues, and to prevent these from being arbitrarily increased. A somewhat detailed knowledge of feudalism and feudal obligations forms a necessary preliminary to any exact study of Magna Carta.

The precise relations of the Norman Conquest to the growth of feudalism in England are complicated, and have formed the subject of much controversy. The view now generally accepted, and with reason, is that the policy of William the Conqueror accelerated the process in one direction, but retarded it in another. Feudalism, regarded as a system of government, had its worst tendencies checked, if not eradicated, by the great upheaval that followed the coming of Duke William; feudalism, considered as a system of land tenure, and as a social system, was, on the contrary, formulated and developed. It is mainly as a system of land tenure that it falls here to be considered. Originally, the relationship between lord and tenant, dependent upon the double ownership of land (of which each was, in a different sense, the proprietor), implied obligations on both sides. The lord gave protection, while the tenant owed services of various sorts. It so happened, however, that, with the changes wrought by time, the legal obligations of the lord ceased to be of much importance, while those of the vassal became more and more burdensome. The tenant’s obligations varied in kind and in extent with the nature of the tenure. It is difficult to frame an exact list of the various tenures formerly recognized as distinct in English law: partly because the classical authors of different epochs, from Bracton to Blackstone, contradict each other; and partly because of the obscurity of the process by which these tenures were gradually differentiated. The word “tenure” originally meant “a holding” of any sort. Sir William Blackstone,[64] after explaining the dependent nature of all real property in England, thus proceeds: “The thing holden is therefore styled a _tenement_, the possessors thereof _tenants_, and the manner of their possession a _tenure_.” Tenure thus comes to mean the conditions on which a tenant holds real estate under his lord, and the number of tenures varies with the number of accepted types.

Footnote 64:

_Commentaries_, II. 59.

The ancient classification differs materially from that in use at the present day. The modern English lawyer (unless of an antiquarian turn of mind) concerns himself only with three tenures: freehold (now practically identical with socage), copyhold and leasehold. The two last-mentioned may be rapidly dismissed, as they were of little importance in the eyes of Littleton, or of Coke: leasehold embraces only temporary interests, such as those of a tenant-at-will or for a limited term of years; while copyhold is the modern form of tenure into which the old unfree villeinage has slowly ripened. The ancient writers were, on the contrary, chiefly concerned with holdings both permanent and free (as opposed to leaseholds on the one hand and villeinage on the other). Of such free tenures seven at least may be distinguished in the thirteenth century, all of which have now come to be represented by the same one of the three recognized modern tenures, namely, freehold or socage. The free holdings existing in medieval England may be ranged under the following heads, viz.: knight’s service, free socage, fee-farm, frankalmoin, grand serjeanty, petty serjeanty, and burgage.

(1) _Knight’s Service._ Medieval feudalism had many aspects; it was almost as essentially an engine of war as it was a system of land-holding. The normal return for which an estate was granted consisted of the service in the field of a specific number of knights. Thus the normal feudal holding was known as knight’s service, or tenure in chivalry—the conditions of which must be constantly kept in view, since by these rules the relations between John and his recalcitrant vassals fell to be determined. When finally abolished at the Restoration, there fell with knight’s service, it is not too much to say, the feudal system of land tenure in England. “Tenure by barony” is sometimes spoken of as a separate species, but may be more correctly viewed as a variety of tenure in chivalry.[65]

Footnote 65:

See Pollock and Maitland, _History of English Law_, I. 218.

(2) _Free Socage._ The early history of socage, with its division into ordinary and privileged, is involved in obscurities which do not require to be unravelled for the purpose at present on hand. The services which had to be returned for both varieties were not military but agricultural, and their exact nature, and amount varied considerably. Although not so honourable as chivalry, free socage was less burdensome in respect that two of the most irksome of the feudal incidents, wardship and marriage, did not apply. When knight’s service was abolished those who had previously held their lands by it, whether under the Crown or under a mesne lord, were henceforward to hold in free socage, which thus came to be the normal holding throughout England after the Restoration.[66]

Footnote 66:

See Statute 12 Charles II. c. 24.

(3) _Fee-farm_ was the name applied to lands held in return for services which were neither military nor agricultural, but consisted only of an annual payment in money. The “farm” thus indicates the rent paid, which apparently might vary without limit, although it was long maintained that a fee-farm rent must amount at least to one quarter of the annual value. This error seems to have been founded on a misconstruction of the Statute of Gloucester.[67] Some authorities[68] reject the claims of fee-farm to rank as a tenure separate from socage; although chapter 37 of Magna Carta seems to recognize the distinction.

Footnote 67:

See Pollock and Maitland, I. 274, n.

Footnote 68:

Pollock and Maitland, I. 218.

(4) _Frankalmoin_ is the tenure by which pious founders granted lands to the uses of a religious house. It was also the tenure on which the great majority of glebe lands throughout England were held by the village priests, the parsons of parish churches. The grant was usually declared to have been made _in liberam eleemosinam_ or “free alms” (that is, as a free gift for which no _temporal_ services were to be rendered).[69] In Scots charters the return formally stipulated was _preces et lacrymae_ (the prayers and tears of the holy men of the foundation for the soul of the founder).

Footnote 69:

Littleton, II. viii. s. 133.

(5) _Grand serjeanty_ was a highly honourable tenure sharing the distinctions and the burdensome incidents of knight’s service, but distinct in this, that the tenant, in place of ordinary military duties, performed some specific office in the field, such as carrying the King’s banner or lance, or else acted as his constable or marshal or other household officer in the palace, or performed some important service at the coronation.[70]

Footnote 70:

Littleton, II. viii. s. 153.

An often-quoted example of a serjeanty is that of Sir John Dymoke and his family, who have acted as the Sovereign’s champions at successive coronations from Richard II. to Queen Victoria, ready to defend the Monarch’s title to the throne, if questioned, by battle in the ancient form.

Grand serjeanties were liable to wardship and marriage, as well as to relief, but not, as a rule, to payment of scutage.[71] William Aguilon, we are told by Madox,[72] "was charged at the Exchequer with several escuages. But when it was found by Inquest of twelve Knights of Surrey that he did not hold his lands in that county by military tenure, but by serjeanty of finding a Cook at the King’s coronation to dress victuals in the King’s kitchen, he was acquitted of the escuages."

Footnote 71:

Littleton, II. viii. s. 158.

Footnote 72:

_History of Exchequer_, I. 650, citing _Pipe Roll_ of 18 Henry III.

(6) _Petty serjeanty_ may be described in the words of Littleton as “where a man holds his lands of our lord the king to yield to him yearly a bow or sword, or a dagger or a knife ... or to yield such other small things belonging to war.”[73]

Footnote 73:

See Littleton, II. ix. s. 159. With this may be compared the definition given in chapter 37 of Magna Carta, where John speaks of land thus held by a vassal as “quam tenet de nobis per servitium reddendi nobis cultellos, vel sagittas vel hujusmodi.”

The grant of lands on such privileged tenures was frequently made in early days on account of the special favour entertained by the King for the original grantee, due, it might be, to the memory of some great service rendered at a critical juncture to the King’s person or interests. A few illustrative examples may be cited from the spirited description of a scholar whose accuracy can be relied upon. Serjeanties, as Miss Bateson tells us, "were neither always military nor always agricultural, but might approach very closely the service of knights or the service of farmers.... The serjeanty of holding the King’s head when he made a rough passage across the Channel, of pulling a rope when his vessel landed, of counting his chessmen on Christmas Day, of bringing fuel to his castle, of doing his carpentry, of finding his potherbs, of forging his irons for his ploughs, of tending his garden, of nursing the hounds gored and injured in the hunt, of serving as veterinary to his sick falcons, such and many other might be the ceremonial or menial services due from a given serjeanty."[74]

Footnote 74:

_Mediaeval England_, pp. 249-250. A similar tenure still exists in Scotland under the name of "blench"—a tenure wherein the reddendo is elusory, viz., the annual rendering of such small things as an arrow or a penny or a peppercorn, “if asked only” (_si petatur tantum_).

In the days before legal definition had done its work, it must often have been difficult to say on which side of the line separating Petty Serjeanties from Grand Serjeanties any particular holding fell. Gradually, however, important and practical distinctions were established, making it necessary that the boundary should be defined with accuracy. In particular, the rule was established that Petty Serjeanties, while liable for relief, were exempt altogether from the burdensome incidents of wardship and marriage, which Grand Serjeanties shared with lands held by ordinary Barony or Knight’s service.[75] Thus the way was prepared for the practical identification of the Petty Serjeanties with ordinary socage at a later date.

Footnote 75:

Littleton, II. viii. s. 158.

(7) _Burgage_, confined exclusively to lands within free boroughs, is mentioned as a separate tenure by Littleton,[76] and his authority receives support from the words of chapter 37 of Magna Carta. Our highest modern authorities,[77] however, consider that it never acquired sufficiently distinct characteristics to warrant its acknowledgment as such. They treat it rather as a special variety of socage, used where the tenants were the members of a corporation. If their opinion must be accepted for England, it follows that, from common antecedents, entirely different results have developed in Scotland and in England respectively. While, north of the Tweed, several of the well-established English tenures have failed to make good their right to separate recognition, burgage has established itself beyond a doubt. Even the levelling process consummated by the Conveyancing (Scotland) Act of 1874 has not entirely abolished its separate existence.

Footnote 76:

_Ibid._, II. x. s. 162.

Footnote 77:

Pollock and Maitland, I. 218.

The explanation of such differences between English and Scottish usage easily suggests itself. When feudalism first took root, the various shades of distinction in the conditions of holding were exceedingly numerous, and merged into one another by imperceptible degrees. The work of definition came later, was essentially artificial in its nature, and assumed different forms in different lands.[78]

Footnote 78:

Littleton and Coke seem almost to countenance two additional tenures, viz., tenure by scutage or escuage, and tenure by Castle-guard. Pollock and Maitland consider both as alternative names for knight’s service. (See I. 251 and I. 257.) The latter is discussed _infra_ under c. 29 of Magna Carta.

These tenures, originally six or seven (according as we exclude or include burgage), have yielded to the unifying pressure of many centuries. Frankalmoin and Grand Serjeanty still exist, but rather as ghosts than realities; the others have all been swallowed up in socage, which has thus become practically identical with “free-hold.”[79] This triumph of socage is the result of a long process. Fee-farm, burgage, and petty serjeanty, always possessing many features in common, were gradually assimilated in almost all respects, while a statute (12 Charles II. c. 24) transformed tenure in chivalry also into socage. The once humble socage has thus risen high, and now embraces most of the land of England.[80]

Footnote 79:

Jenks, _Modern Land Law_, p. 14.

Footnote 80:

It has been well described by Pollock and Maitland (I. 294) as “the great residuary tenure.” In Scotland the “residuary tenure” is not socage but “feu” (resembling the English fee-farm). Holdings in feu are still familiar to Scots lawyers. They are originated by a formal charter, followed by registration (the modern equivalent of infeftment or feudal investiture), thus preserving an unbroken connection with the feudal conveyancing of the Middle Ages.

The interest of historians naturally centres round tenure by knight’s service, which is the very kernel of the feudal system. Lack of definition in the middle ages was a fruitful source of quarrel. For a century and more after the Norman Conquest, the exact amount and nature of the military services due by a tenant to his lord were left vague and undetermined. The early Norman Kings had gradually superseded the old Anglo-Saxon Crown tenants by new ones of Norman or French extraction, without formulating any code of regulations for the future. The whole of England had thus been carved into a number of estates—the larger known as honours or baronies, and the smaller as manors. Each Crown tenant (with two exceptions, of which the Conqueror’s favourite foundation of Battle Abbey was one) held his lands on condition of furnishing a certain number of fully armed and mounted soldiers, always ready to obey the King’s summons in the event of war. High authorities differ as to when and by whom the amount of each vassal’s service was fixed. The common view (promulgated by Prof. Freeman[81] with his usual vehemence), attributes the allocation of specific service to Ranulf Flambard, the unscrupulous tool of William Rufus. Mr. J. H. Round[82] has recently urged convincing reasons in support of the older view which attributes it to William I. Two facts, apparently, are certain: that within half a century from the Conquest each military tenant was burdened with a definite amount of knight’s service; and, further, that no formal record of the amount of such service was made at the time. There were, as yet, no written charters, and thus the possibility of disputes remained. Probably such grants would be made in full _Curia_, and the only record of the conditions would lie in the memory of the Court itself.

Footnote 81:

_Norman Conquest_, V. 377; _Hist. of William Rufus_, 335–7.

Footnote 82:

_Feudal England_, p. 228 _et seq._

Long before the date of Magna Carta, the various obligations had been grouped into three classes, which may be arranged according to their relative importance, as _services_, _incidents_, and _aids_. Under each of these three heads, disputes continually arose between the lord who exacted and the vassal who rendered them.[83]

Footnote 83:

All three forms of feudal obligation—service, incidents, and aids—have long been obsolete in England. The statute 12 Charles II. c. 24 swept away the feudal _incidents_ along with the feudal system; centuries before, _scutages_ in lieu of military _service_ had become obsolete in the transition from the system of feudal finance to that of national finance, effected by the Crown in the thirteenth and fourteenth centuries. Feudal _aids_ were also long obsolete, although James I., in desperate straits for money, had attempted to revive two of them. In France the feudal system, with all its burdensome obligations, remained in full vigour until it was abolished in one night by the famous decree of the National Assembly of 4th August, 1790. In Scotland, the feudal system of land tenure still exists, and certain of its incidents (_e.g._ reliefs and compositions or fines for alienation) are exacted at the present day.

The very essence of the feudal relation between the King as overlord and the Crown tenant as vassal consisted in the liability of the latter to render “suit and service,” that is, to follow his lord’s banner in time of war, and to attend his court in time of peace. It will be more convenient, however, to reserve full consideration of these services until the comparatively uncomplicated obligations known as incidents and aids have been first discussed.

I. _Feudal Incidents._ In addition to “suit and service,” the lord reaped, at the expense of his tenants, a number of casual profits, which thus formed irregular supplements to his revenue. These profits, accruing, not annually, but on the occurrence of exceptional events, came to be known as “feudal incidents.” They were gradually defined with more or less accuracy, and their number may be given as six, viz.:

Reliefs, Escheats, Wardships, Marriages, Primer seisins, and Fines for Alienation.[84]

Footnote 84:

Blackstone, _Commentaries_, II. 63, however arranges these in a different order, and mentions as a seventh incident “aids,” which are here reserved for separate treatment.

(_a_) _Relief_ is easily explained. The fee, or _feudum_, or hereditary feudal estate, seems to have been the result of a gradual evolution from the old _beneficium_ (or estate held merely for one lifetime), and that again from the older _precarium_ (or estate held only during the will of the overlord). Grants of land, originally subject to revocation by the lord, had gradually attained fixity of tenure throughout the life of the original grantee; and, later on, they became transmissible to his descendants. The hereditary principle at last completely triumphed; the Capitulary of Kiersey (A.D. 877) is said to be the first authoritative recognition of the heir’s absolute right to succeed. The process was a gradual one, and it would seem that even after the Norman Conquest, this rule of hereditary descent was not established beyond possibility of dispute.[85] This right of the heir to succeed always remained subject to one condition, namely, the payment of a sum of money known as “relief.” This was theoretically an acknowledgment that the new tenant’s right to ownership was incomplete, until recognized by his superior—a reminiscence of the earlier _precarium_ from which the _feudum_ had developed.

Footnote 85:

See Pollock and Maitland, I. 296.

_Relief_, then, is the sum payable to a feudal overlord by an heir for recognition of his title to succeed the last tenant in possession. The amount remained long undefined, and the lord frequently asked exorbitant sums.[86]

Footnote 86:

See _infra_, under c.2, for the steps in the gradual process whereby this evil was redressed.

(_b_) _Escheat_, it has been said, "signifies the return of an estate to a lord, either on failure of issue from the tenant or upon account of such tenant’s felony."[87] This lucid description conveys a good general conception of escheat; but it is inaccurate in at least two respects. It does not exhaust the occasions on which escheat occurs, and it errs in speaking of “the return” of an estate to a lord, when, more accurately, that estate had never left him, but always remained his property, subject only to a burden, which was now removed. In theory, the feudal grant of lands was always conditional; and when the condition was broken, the grant fell, and the lord found himself, automatically as it were, once more the absolute unburdened proprietor, as he had been before the grant was made. Thereafter, he held the land in demesne, unless he chose to make a new grant to another tenant. The word “escheat” was applied indifferently to the lord’s right to such reversions, and to the actual lands which had thus reverted. In warlike and unsettled times the right was a valuable one, for whole families might become rapidly extinct. When the last tenant left no heir, it was obvious that the original grant had exhausted itself. Similarly, when a landholder was convicted of felony, his blood became, in the phrase of a later day, attainted, and no one could succeed to any estate through him. If a man failed in the ordeal of water provided by the Assize of Clarendon in 1166 for those accused of heinous crimes, his estates also escheated to his lord. It is true that a complication arose when it was of treason that the tenant had been convicted. In that case the king, as the injured party, had prior rights which excluded those of the lord. The lands of traitors were forfeited to the Crown. Even in the case of felony the king had a limited right to the lands during a period which was strictly defined by Magna Carta.[88]

Footnote 87:

R. Thomson, _Magna Charta_, p. 236.

Footnote 88:

_Infra_, c. 32.

The tenant’s felony and failure of issue were the two main grounds of escheat, but not the only ones; the goods of fugitives from justice and of those who had been formally outlawed also escheated, and Glanvill adds another case,[89] namely, female wards guilty of unchastity (an offence which spoiled the king’s market). Failure to obey a summons to the feudal levy in time of war might also be made a ground of forfeiture.[90]

Footnote 89:

VII. 17.

Footnote 90:

Madox, I. 663.

Escheat was thus a peculiarly valuable right both to the Crown and to mesne lords. Its effect was simply this: one link in the feudal chain was struck out, and the links on either side were fitted together. If the defaulter was a Crown tenant, all his former sub-tenants, whether freeholders or villeins, moved up one rung in the feudal ladder and held henceforward directly of the king, who enjoyed the entire complexus of legal rights previously enjoyed by the defaulter in addition to those previously enjoyed by himself: rents, crops, timber, casual profits, and advowsons of churches falling vacant; jurisdictions and the profits of jurisdictions; services of villeins; reliefs, wardships, and marriages of freeholders as these became exigible.

The Crown, however, while taking everything the defaulter might have taken before default, must take nothing more—so at least Magna Carta[91] provides. The rights and status of innocent sub-tenants must not be prejudiced by the misdeeds of their defaulting mesne lord.

Footnote 91:

See _infra_, c. 43.

(_c_) _Wardships_ are described in the _Dialogus de Scaccario_ as “escheats along with the heir” (_escaeta cum herede_).[92] This expression does not occur elsewhere, but it would be impossible to find any description of wardship which throws more light on its nature and consequences. When the heir of a deceased tenant was unfitted to bear arms by reason of his tender years, the lands were practically, during his minority, without an effective owner. The lord accordingly treated them as temporarily escheated. During the interval of nonage, the lord entered into possession, drew the revenues, and applied them to his own purposes, subject only to the obligation of maintaining and training the heir in a manner suited to his station in life. Frequently, considerable sums were thus spent. The _Pipe Roll_ of the seventeenth year of Henry II. shows how out of a total revenue of £50 6s. 8d. from the Honour of “Belveeir,” £18 5s. had been expended on the children of the late tenant.[93] Wardship came to an end with the full age of the ward, that is, in the case of a military tenant, on the completion of his twenty-first year, “in that of a holder in socage on the completion of the fifteenth, and in the case of a burgess when the boy can count money, measure cloth, and so forth.”[94] Wardship of females normally ended at the age of fourteen, "because that a woman of such age may have a husband able to do knight’s service."[95]

Footnote 92:

See Hughes’ edition, p. 133.

Footnote 93:

See _Dialogus_, p. 222 (citing _Pipe Roll_, p. 27).

Footnote 94:

Glanvill, VII. c. 9. In socage and burgage tenures no incident of wardship was recognized; the guardianship went to the relations of the ward, and not to his feudal lord. Somewhat complicated, but exceedingly equitable, rules applied to socage. The maternal kindred had the custody, if the lands came from the father’s side; the paternal kindred, if from the mother’s side (Glanvill, VII. c. 11). In plain language, the boy and his property were entrusted to those who had no interest in his death.

Footnote 95:

Littleton, II. iv. s. 103.

All the remunerative consequences flowing from escheat flowed also from wardship—rents, casual profits, advowsons, services of villeins, and reliefs. Unlike escheats, however, the right of the Crown here was only temporary, and Magna Carta sought[96] to provide that the implied conditions should be respected by the Crown’s bailiffs or nominees. The lands must not be wasted or exhausted, but restored to the young owner when he came of age in as good condition as they had been at the commencement of the wardship.

Footnote 96:

See under c. 5.

One important aspect of this right ought to be specially emphasized. The Crown’s wardship affected bishoprics as well as lay baronies, extending over the temporalities of a See between the death of one prelate and the instalment of his successor. Thus, it was to the king’s interest to place obstacles in the way of all appointments to vacant sees, since the longer the delay, the longer the Exchequer drew the revenues and casual profits.[97]

Footnote 97:

What these were may be read in the _Pipe Rolls_, _e.g._, in that of 14 Henry II., when the Bishopric of Lincoln was vacant.

This right was carefully reserved to the Crown, even in the very comprehensive charter in which John granted freedom of election, dated 21st November, 1214.[98]

Footnote 98:

See _Statutes of the Realm, Ch. of Liberties_, p. 5, and _Sel. Charters_, p. 288: “Salva nobis et haeredibus nostris custodia ecclesiarum et monasteriorum vacantium quae ad nos pertinent.” Contrast the terms of Stephen’s Oxford Charter; _Sel. Charters_, pp. 120-1.

(_d_) _Marriage_ as a feudal incident belonging to the lord is difficult to define generally, since its meaning changed. Originally it seems to have implied little more than the right of a lord to forbid an heiress, holding a fief under him, to marry a personal enemy, or some one otherwise unsuitable. Such veto was only reasonable, since the husband of the heiress would become the owner of the fee and the tenant of the lord. This negative right had almost necessarily a positive side; the claim to concur in the choice of a husband gradually expanded into an absolute right of the lord to dispose by sale or otherwise of the lands and person of his female ward. The prize might go as a bribe to any unscrupulous gentleman of fortune who placed his sword at the King’s disposal, or it might be made the subject of auction to the highest bidder. The lady passed as a mere adjunct to her own estates, and ceased, strictly speaking, to have any voice in choosing a partner for life. She might protect herself indeed against an obnoxious husband by out-bidding her various suitors. Large sums were frequently paid for leave to marry a specified individual or to remain single.

This right seems, at some uncertain date, to have been extended from females to males, and instances of sums thus paid occur in the _Pipe Rolls_. It is difficult at first sight to imagine how the Crown found a market for such wares as male wards; but probably wealthy fathers were ready to purchase desirable husbands for their daughters. Thus in 1206 a certain Henry of Redeman paid forty marks for the hand and lands of the heir of Roger of Hedon, “_ad opus filiae suae_,”[99] while Thomas Basset secured a prize in the person of the young heir of Walerand, Earl of Warwick, to the use of any one of his daughters.[100] This extension to male heirs is usually explained to have been founded on a strained construction of chapter 6 of Magna Carta, but the beginnings of the practice can be traced much earlier than 1215.[101] The lords’ right to sell their wards was recognized and defined by the Statute of Merton,