CHAPTER THREE.
Si autem heres alicujus talium fuerit infra etatem et fuerit in custodia, cum ad etatem pervenerit, habeat hereditatem suam sine relevio et sine fine.
If, however, the heir of any one of the aforesaid has been under age and in wardship, let him have his inheritance without relief and without fine when he comes of age.
The Crown is here forbidden to exact relief where it had already enjoyed wardship. It was hard on the youth, escaping from leading-strings, to be met, when he “sued out his livery,” with the demand for a large relief by the exchequer which had already appropriated all his available revenue. The same event, namely, the ancestor’s death, was thus made the excuse for two distinct feudal incidents.[[378]]
Such double extortion had long been forbidden to mesne lords; Magna Carta was merely extending similar limitations to the king. The grievance complained of had been intensified by an unfair expedient which John sometimes adopted. In cases of disputed succession he favoured the claims of a minor, enjoyed the wardship, and thereafter repudiated his title altogether, or confirmed it only in return for an exorbitant fine. The only safeguard was to provide that the king should not enjoy wardship until he had allowed the heir to perform homage, which constituted the binding tie of lord and vassal between them, prevented the king from challenging the vassal’s right, and bound him to “warrant” the title against all rival claimants. This expedient was actually adopted in the revised Charter of 1216.[[379]]
The alterations in that reissue were not altogether in the vassal’s favour. Another addition made a reasonable stipulation in favour of the lord, which incidentally illustrates the theory underlying wardship. The essence of tenure in chivalry was the grant of land in return for military services. Only a knight was capable of bearing arms; hence it was that the lord held the lands in ward until the minor should reach man’s estate. Ingenious attempts had apparently been made to defeat these legitimate rights of feudal lords by making the infant heir a “knight,” thus cutting away the basis on which wardship rested. The reissue of 1216 prevented this, providing that the lands of a minor should remain in wardship, although he was made a knight.[[380]] Incidentally, the same Charter of Henry declared twenty-one years to be the period at which a military tenant came of age, a point on which John’s Charter had been silent.
In one case, exceptionally, wardship and relief might both be exacted on account of the same death, though not by the same lord. Where the dead man had formerly held two estates, one of the Crown and one of a mesne lord, the Crown might claim the wardship of both, and then the disappointed mesne lord was allowed to exact relief as a solatium for his loss.[[381]]
[378]. Where there had already been a wardship, the relief was thus the price paid by the heir in order to escape from the heavy hand of the king, and was therefore known as “ousterlemain.” Mr. Taswell-Langmead (Engl. Const. Hist., p. 51, n.) states the amount at half a year’s profits. He cites no authorities for this, and is probably in error. The Dialogus, II. x. E., p. 135, forbids relief to be taken, when wardship had been exercised per aliquot annos.
[379]. See chapter 3 of 1216, which stipulates that no lord shall have wardship of an heir “antequam homagium ejus ceperit.” Cf. Coke, Second Institute, p. 10.
[380]. Coke, ibid., p. 12, makes a subtle, and apparently unwarranted, distinction to depend on whether the minor was made a knight before or after his ancestor’s death. The proviso, he argues, does not apply to the former case, because the word used is “remaneat,” and lands cannot “remain” in wardship if they were not in it before. Such reasoning is puerile.
[381]. See Coke on Littleton, Book II. c. iv. s. 112; and cf. infra, cc. 37 and 43 for the “prerogative wardship” of the Crown.