It should be noticed how skilfully the queries were framed in the inquest of 1166, to entrap the unwary tenant, and make him commit himself to the facts. If his enfeoffed knights were short of the required number, he was caught under the third query; if, on the other hand, he had an excess, he was caught under the others. Now, did the 'barons', when they made their returns, anticipate this sweeping and unwelcome reform? Presumably not. They appear to have drawn up their cartae carefully and willingly, few of those who had an excess of knights taking even the precaution of mentioning their servitium debitum.[54] The church, moreover, from the terms in which her payments are thenceforth entered (vide infra), must have uniformly and systematically adopted an attitude of protest. Yet there is no trace of such protest in her returns. May we then infer that the crown sought to deliberately entrap its tenants? Two circumstances might favour that view. In the first place the tenants had to make their returns extra sigillum pendentes, thereby solemnly committing themselves;[55] in the second, the tenants would, of course, have been tempted to conceal or understate their excess of knights, had they foreseen the use that the crown would make of their returns.
The question may very fairly be asked, 'What check had the crown upon a tenant in the event of the latter omitting some of his "excess" fees?' The answer is supplied, I think, by a clause in the invaluable return of the northern primate. He there requests that his return may be accepted 'without prejudice', as a lawyer would say, in case of his omitting some small fees. That is to say, these formal returns might be brought up as evidence against tenants-in-chief who had omitted some of their fees, proving that they had thereby themselves disowned their right to the fees in question.[56]
Two points strike one strongly in the preparation of these returns. The first of these is the difficulty experienced in compiling a correct list of under-tenants and their holdings; the second is the employment of the 'Inquest' as a means of ascertaining the particulars.
Taking the former of these, we find Hugh Wac writing, 'si amplius inquirere possim, notificabo vobis'; and Guarine 'de Aula', 'si plus possim inquirere, faciam vobis scire'; so too the Bishop of Ely, 'de hiis vero certi sumus, et si amplius inquirere poterimus libenter vobis significabimus'; and the Bishop of Bath, 'si certiorem inquirere poterimus veritatem, nos illam vobis significabimus'; and Alfred of Lincoln, 'si plus inquiri potest, inquirere faciemus'. The Bishop of Exeter makes his return, 'sicut eam diligentius inquirere potui'; the Abbot of Tavistock, 'quantum inde sollicitius inquirendo scire potuit'. Hugh de Lacy, in a postscript to his return, adds a fee 'quod oblitus sum'; while the Earl of Clare has to send in a subsequent rider, containing an entry, 'quod ego postquam misi cartam ... recordatus sum'.
From this difficulty it is a short step to the inquests which it seems in some cases to have necessitated. The Abbot of Ramsey heads his return, 'Haec est inquisitio'; the Earl of Warwick similarly commences, 'Hoc est quod inquisivi per homines'. Earl Patrick makes his return, 'secundum quod de probis et antiquis hominibus meis inquirere potui'. 'Fecimus inquirere,' writes the Bishop of Bath, 'per legales homines meos.... Haec autem per eos inquisivimus.'
This brings us directly to the very important inquest referred to in the carta of the Earl of Arundel:
Dominus noster Rex Henricus quadam contentione quae surrexit inter milites de honore de Arundel de exercitu quodam de Walliis, elegit iiij. milites de honore, de melioribus et legalioribus, et antiquioribus ... et fecit eos recognoscere servitia militum de honore, et super legalitatem et sacramenta eorum inde neminem audire voluit.
Mr Eyton argued elaborately on genealogical grounds that this inquest must have taken place under Henry I, but indeed it is quite obvious from the language of the carta itself that this was so. It is, consequently, worthy of notice for its bearing on 'the sworn inquest'. While on this subject, attention may be called to the unique entry in the Pipe-Roll of 12 Henry II (1166): 'Alanus de Munbi debet xl. s. quia non interfuit Jurat' feodorum militum' (p. 8). Investigation proves (through what is known as the Lindsey Survey) that Alan was an under-tenant of the honour of Brittany, the successor of that Eudo who held in Mumby temp. Domesday. This fact throws light on the entry, by suggesting that the inquest referred to concerned the honour of Brittany, the number of fees in which was then and subsequently doubtful.
But to return. It is infinitely easier to trace the change brought about by the inquest of 1166 in the case of the church fiefs than of the lay ones. For on the former it was uniform and glaring. Previously to 1166 the church tenants had paid on their servitium debitum alone; after 1166 they paid, as a rule, on all the fees actually created upon the fief. Thus the assessment of the Bishop of Durham was raised at a blow from ten fees to more than seventy.[57] There were several equally striking cases among the prelates. Now, whether or not the church tenants feared something of the kind, they had generally been careful in their returns to set forth their servitium debitum, and when, in 1168, they were uniformly assessed on their total of fees, their uniform protest is expressed in the formula 'quos non recognoscit' applied to the payment on their excess knights. Such is the meaning of this puzzling formula which is peculiar to the church fiefs.[58] In these cases it wholly replaces the de veteri and de novo assessment which, from 1166, was applied to the lay fiefs.