CHAPTER THIRTY-SEVEN.
Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per burgagium, et de alio terram teneat per servicium militare, nos non habebimus custodiam heredis nec terre sue que est de feodo alterius, occasione illius feodifirme, vel sokagii, vel burgagii; nec habebimus custodiam illius feodifirme, vel sokagii, vel burgagii, nisi ipsa feodifirma debeat servicium militare. Nos non habebimus custodiam heredis vel terre alicujus, quam tenet de alio per servicium militare, occasione alicujus parve serjanterie quam tenet de nobis per servicium reddendi nobis cultellos, vel sagittas, vel hujusmodi.
If anyone holds of us by fee-farm, by socage, or by burgage, and holds also land of another lord by knight’s service, we will not (by reason of that fee-farm, socage, or burgage,) have the wardship of the heir, or of such land of his as is of the fief of that other; nor shall we have wardship of that fee-farm, socage, or burgage, unless such fee-farm owes knight’s service. We will not by reason of any petty serjeanty which anyone may hold of us by the service of rendering to us knives, arrows, or the like, have wardship of his heir or of the land which he holds of another lord by knight’s service.
By these provisions the Charter reverts once more to the subject of wardship, laying down three rules which will be better understood when their sequence is somewhat altered, the second being taken first.
(1) Ordinary wardship. The reason for claiming wardship from lands held in chivalry, namely, that a boy tenant could not perform military service, did not apply to fee-farm, to socage, or to burgage. There was much looseness of usage, however; and of this John took full advantage. The Charter stated the law explicitly; wardship was not due from any such holdings, except in the somewhat anomalous cases where lands in fee-farm expressly owed military service.[[776]] As petty serjeanties (although mentioned in the present chapter in a different connection) are not expressly said to share this exemption, it may be inferred that the barons admitted John’s wardship over them, just as in the case of great serjeanties. In Littleton’s time, the law had been changed. Petty serjeanties were then exempt.[[777]]
(2) Prerogative wardship. When a tenant-in-chivalry died leaving two separate military fiefs held of different mesne lords, each of these lords enjoyed, during the minority, wardship over his own fief. This was perfectly fair to all parties; but if the ward held one estate of the Crown, and another of a mesne lord, the king claimed wardship over both; and that, too, even when the Crown fief was of small value.[[778]] Such rights were known as “prerogative wardship,” and thus limited, were in 1215 perfectly legal, however inequitable they may now seem.
(a) Fee-farm, socage, and burgage. John, however, pushed this right further, and exercised prerogative wardship over fiefs of mesne lords, not merely by occasion of Crown fiefs held in chivalry, but also by occasion of Crown fiefs held by any other free tenure. It was outrageous thus to claim prerogative wardship in respect of fee-farm, socage, or burgage lands, which were themselves exempt from ordinary wardship. John accordingly was made to promise amendment.[[779]]
(b) Petty Serjeanties[[780]] were in a slightly different position. Although Magna Carta did not abolish the Crown’s rights of ordinary wardship over these, it forbade that that should form an occasion of prerogative wardship. The king might enjoy the custody of his own fief if he pleased, but not of the wider fiefs of others on that pretext.[[781]]
Prerogative wardship (even in the limited form admitted by Magna Carta) might involve a double hardship on the mesne lord deprived by it of the custody of his fief. Suppose that the common tenant held lands from a mesne lord on condition of, say, five knights’ service, in addition to his Crown fief. The king seized both fiefs on his death, nominally as a compensation for the loss of military service, which the minor heir could not render. Yet when a scutage ran the king demanded from the mesne lord payments in proportion to his full quota without allowing for the fees of five knights taken from him by prerogative wardship. This is no imaginary case. The barons in 1258 complained of the practice and demanded redress.[[782]]
[776]. Cf. supra, pp. 66-70, and 75-7.
[777]. II. viii. s. 158.
[778]. Cf. Glanvill, VII. c. 10. “When any one holds of the king in capite the wardship over him belongs exclusively to the king, whether the heir has any other lords or not; because the king can have no equal, much less a superior.”
[779]. Glanvill, VII. c. 10, had laid it down that burgage tenure could not give rise to prerogative wardship.
[781]. See Bracton, folio 87 b. The Note Book, case 743, contains a good illustration. The motive for these restrictions was clearly to prevent injustice to mesne lords. It was probably, however, an indirect consequence of Magna Carta that a similar rule came to be applied where no mesne lord was injuriously affected. In 1231 a certain Ralf of Bradeley died who had held two separate freeholds of the Crown, (i) a small fee by petty serjeanty for which he rendered twenty arrows a year, and (ii) land of considerable value held in socage. The Crown took possession of both estates, on the assumption that the admitted right of wardship over the petty serjeanty brought with it a right of wardship over the socage lands also (although these would have been exempt if they had stood alone). The king sold his rights for 300 marks. Ralf’s widow claimed the wardship of the socage lands, on the ground that these were of much greater value than those held by serjeanty. Her argument was upheld, and the 300 marks were refunded by the exchequer to the disappointed purchaser. See Pipe Roll, 5 Henry III., cited Madox, I. 325-6.
[782]. See Petition of the Barons, article 2 (Select Charters, 383). C. 53 of Magna Carta reverts to prerogative wardship, granting redress, although not summary redress, where John, or his father or brother, had illegally extended it by occasion of socage, etc. See also supra, p. [241].