II.: The Crown and Feudal Obligations.

Among the 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 refusal 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 its solicitude to define the exact extent of feudal services and dues, and so to prevent these from being arbitrarily increased. A detailed knowledge of feudal obligations forms a necessary preliminary to the 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 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 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, 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 services 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. Sir William Blackstone, 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.

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. Of these, seven at least may be distinguished in the thirteenth century, all of which have now come to be represented by the modern freehold or socage. These seven are 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 tenure was known as knight’s service, or tenure in chivalry—the conditions of which must be constantly kept in view, since by them 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.

(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 here unravelled. The services 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 of the Crown or of a mesne lord, were henceforward to hold in free socage, which thus came to be the normal holding throughout England after the Restoration.

(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. Some authorities 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.

(4) Frankalmoin was a favourite tenure with founders of religious houses. It was also the tenure on which much of the glebe lands of England was held by the village priests. The grant was made in liberam eleemosinam or “free alms” (that is, no temporal services were to be rendered). In Scots charters the return formally stipulated was preces et lacrymae.

(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 service, such as carrying the King’s banner or lance, or filled some important office at the coronation. 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 William IV., ready to defend the Monarch’s title to the throne by battle in the ancient form.

Grand serjeanties were liable to wardship and marriage, as well as to relief, but not to payment of scutage. William Aguilon, we are told by Madox, “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.”

(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.” The grant of lands on such privileged tenures was frequently made in early days on account of some great service rendered at a critical juncture to the King’s person or interests. Serjeanties, 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.”

The line between grand and petty serjeanties, like that between the greater and smaller baronies of chapter 14 of Magna Carta, was at first vaguely drawn. The distinction, which Dr. Horace Round considers an illustration of “nontechnical classification,” may possibly have originated in the Great Charter. At a later date, however, petty serjeanties, while liable for “relief,” escaped the onerous incidents of wardship and marriage which grand serjeanties shared with lands held in chivalry. The way was thus prepared for the ultimate amalgamation of petty serjeanty with ordinary socage.

(7) Burgage, confined to lands within free boroughs, is mentioned as a separate tenure by Littleton, and his authority receives support from chapter 37 of Magna Carta. Our highest modern authorities, however, treat it rather as a variety of socage. In Scotland, where several of the English tenures have failed to obtain recognition, burgage has established itself beyond a doubt. Even the levelling process consummated by the Act of 1874 has not abolished its separate existence.

Of these tenures, originally six or seven, frankalmoin and grand serjeanty still exist, but rather as ghosts than realities; the others have been swallowed up in socage, which has thus become identical with “freehold.” This triumph of socage is the result of a long process: fee–farm, burgage, and petty serjeanty, always with 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.

The interest of historians centres in 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 military services due by a tenant to his lord were vague and undetermined. Each Crown tenant (except favoured foundations like Battle Abbey) held his lands on condition of furnishing a certain number of fully armed and mounted soldiers 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 Professor Freeman) attributes the allocation of specific service to Ranulf Flambard, the unscrupulous tool of Rufus. Mr. J. H. Round urges convincing reasons in support of the older view which attributes the innovation 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 service; and that no written record of the amount was made at the time of granting: there were, as yet, no written charters, and thus disputes arose. Probably, such grants were made in full Curia, and the only record of the conditions would lie in the memory of the Court.

Long before Magna Carta, the various obligations had been grouped into three classes, which may be arranged in order of importance, as services, incidents, and aids. Under each of these three heads, disputes continually arose. The essence of the feudal tie consisted in the liability to render “suit and service,” that is, to follow the lord’s banner in time of war, and 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: reliefs, escheats, wardships, marriages, primer seisins, and fines for alienation.

(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 for one lifetime), and that again from the older precarium (or estate held during the lord’s will). Grants originally subject to revocation, gradually attained fixity of tenure for the life of the original grantee, and, later on, became transmissible to descendants: the Capitulary of Kiersey (a.d. 877) is said to be the first authoritative recognition of the heir’s absolute right to succeed. It would seem that even after the Norman Conquest, this rule of hereditary descent was not established beyond possibility of dispute. The heir’s right to succeed remained subject to one condition, namely, the payment of a sum known as a “relief.” This was 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. The amount remained long undefined, and the lord frequently asked exorbitant sums.

(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.” 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 always remained his property, subject only to a burden, which was now removed. In theory, the feudal grant of lands was always conditional: when the condition was broken, the grant fell, and the lord found himself, automatically as it were, once more the absolute 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 reverted. In warlike times the right was valuable, for whole families might become rapidly extinct. Further, 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 escheated to his lord. A complication arose when treason was the crime of which the tenant had been convicted; for 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 over the lands of ordinary felons the king had rights during a period which was defined by Magna Carta.

Felony and failure of issue were 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, namely, female wards guilty of unchastity (an offence which spoiled the king’s market). Failure to obey the royal summons in time of war or to pay scutage in lieu thereof might also be a ground of forfeiture.

Escheat was thus a valuable right both to the Crown and to mesne lords. Its effect was simply this: one link in the 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 took over the entire complexus of legal rights previously enjoyed by the defaulter: rents, crops, timber, casual profits, and advowsons of churches falling vacant; jurisdictions and their profits; 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 Magna Carta provides. The rights and status of innocent sub–tenants must not be prejudiced by the misdeeds of defaulting lords.

(c) Wardships are described in the Dialogus de Scaccario as “escheats along with the heir” (escaeta cum herede). 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, during his minority, without an effective owner: the lord treated them as temporarily escheated, entered into possession, drew the revenues, and applied them to his own purposes, subject only to the obligation of maintaining the heir in a manner suited to his station in life. Considerable sums might thus be 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. 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.” 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.” An heiress who did not succeed to the estate until she was fourteen thus escaped wardship altogether, but if she became a ward at a younger age, the wardship continued till she attained sixteen years unless she married earlier.

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 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 son when he came of age, in as good condition as when his father died.

One important aspect ought to be emphasized: 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. It was to the king’s interest to keep sees vacant, while his Exchequer drew the revenues and casual profits. This right was carefully reserved, even in the comprehensive charter in which John granted freedom of election.

(d) Marriage as a feudal incident is difficult to define; for its meaning changed. Originally it seems to have implied little more than the right of a lord to forbid an heiress to marry his personal enemy. Such veto was reasonable, since the husband of the heiress would become the tenant of the lord. The claim to concur in the choice of a husband gradually expanded into an absolute right to dispose of the lands and person of the female ward: the prize might be a bribe to any unscrupulous gentleman of fortune who placed his sword at the King’s disposal, or it might go to the highest bidder. The lady passed as a mere adjunct to her own estates. At fourteen she might be sent to market, and the only way in which she could protect herself against an obnoxious husband was by out–bidding her various suitors.

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,” 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. This extension to male heirs is usually explained as founded on a strained construction of chapter 6 of Magna Carta; but the beginnings of the practice can be traced before 1215. The lords’ right to sell their wards was recognized and defined by the Statute of Merton, chapter 6. The attempts made to remedy some of the most serious abuses may be read in Magna Carta. Hallam considers that “the rights, or feudal incidents, of wardship and marriage were nearly peculiar to England and Normandy,” and that the French kings never “turned this attribute of sovereignty into a means of revenue.”

(e) Primer Seisin, which is usually regarded as a separate incident, and figures as such in Blackstone’s list, is perhaps better understood, not as an incident at all, but as a special procedure—effective and summary—whereby the Crown could enforce the four incidents already described. It was an exclusive prerogative of the Crown, denied to mesne lords. When a Crown tenant died, the King’s officers had the right to enter into immediate possession, and to exclude the heir, who could not touch his father’s lands without permission from the Crown: he had first to prove his title by inquest, give security for any balance of relief or other debts, and perform homage. It will be readily seen what a strong strategic position all this assured to the King in any disputes with the heir of a dead vassal. If the Exchequer had doubtful claims against the deceased, its officials could satisfy themselves before admitting the heir to possession. If the heir showed any tendency to evade payment of feudal incidents, the Crown could checkmate his moves. If the succession was disputed, the King might favour the claimant who pleased or paid him most; or, under colour of the dispute, refuse to disgorge the estate—holding it in custody analogous to wardship, and meanwhile drawing the profits. If the son happened to be abroad when his father died, he would experience difficulty in forcing the Crown to restore the estates. Such was the experience of William Fitz–Odo on returning from Scotland in 1201 to claim his father’s carucate of land in Bamborough. Primer seisin was thus not so much a separate incident, as a right peculiar to the Crown to take summary measures for the satisfaction of all claims against a deceased tenant or his heir. Magna Carta contains no direct reference to it, but chapters 37 and 53, providing against the abuse of prerogative wardship, have a bearing on the subject.

(f) Fines for alienation occupy a place by themselves. Unlike the incidents already discussed, they became exigible not on the tenant’s death, but on his parting with his estate during his lifetime, either as a gift or in return for a price. How far could he effect this without consent of his lord? This was, for many centuries, a subject of heated disputes, often settled by compromises, under which the new tenant paid a fine to the lord for recognition of his title. Such fines are payable at the present day in Scotland (under the name of “compositions”) from feus granted prior to 1874; and, where no sum has been mentioned in the Feu Charter, the law of Scotland defines the amount exigible as one year’s rent. Magna Carta contains no provisions on this subject. Disputes, long and bitter, took place in the thirteenth century; but their history is irrelevant to the present inquiry.

II. Feudal Aids. The feudal tenant was expected to come to the aid of his lord in any special crisis or emergency. At first, the occasions on which these “aids” might be demanded were varied and undefined. Gradually they were limited to three. Glanvill, indeed, mentions only two: the knighting of the overlord’s eldest son, and the marriage of his eldest daughter; but he intends these, perhaps, as illustrations rather than as an exhaustive list. Before the beginning of the thirteenth century the recognized aids were the ransoming of the King and the two already mentioned. This understanding was embodied in Magna Carta.

A tradition has been handed down from an early date, that these aids were voluntary offerings made as a mark of affection. Long before John’s reign, however, the obligation had become fixed by law; the tenant dared not refuse to pay the recognized three. But, when the Crown exacted contributions for any other reason, it required consent of the commune concilium.

The Great Charter, while confirming this tacit compromise, left the amount of aids undefined, merely stipulating that they should be “reasonable.” Examples of such payments, both before and after the Charter, are readily found in the Exchequer Rolls. Thus, in his fourteenth year Henry II. took one mark per knight’s fee for his daughter’s marriage; Henry III. took 20s., and Edward I. 40s. for a similar purpose. For Richard’s ransom, 20s. had been exacted from each knight’s fee (save those owned by men actually serving in the field); and Henry III. took 40s. in his thirty–eighth year at the knighting of his son. The Statute of Westminster I. fixed the “reasonable” aid payable to mesne lords at 20s. per knight’s fee, and 20s. for every estate in socage of £20 annual value. This rate, it will be observed, is one–fifth of the knight’s relief. The Crown, in thus enforcing “reason” on mesne lords, seems never to have intended that the same limit should hamper its own dealings with Crown tenants, but continued to exact larger sums whenever it thought fit. Thus £2 per fee was taken in 1346 at the knighting of the Black Prince.

A statute of Edward III. at last extended to the Crown the same measure of “reasonableness” as had been applied three–quarters of a century earlier to mesne lords. The last instances of the exaction of aids in England occur as late as the reign of James I., who, in 1609, demanded one for the knighting of the ill–fated Prince Henry, and in 1613 another for the marriage of his daughter Elizabeth.

III. Suit and Service. This phrase expresses the essential obligations inherent in the very nature of the feudal tie. It may be expanded (as regards tenure in chivalry) into the duty of attendance at the lord’s court, whether met for administrative or judicial purposes, or for reasons of mere display, and the further duty of military service under that lord’s banner in the field. Suit had ceased to be an urgent question before the reign of John. Indeed, the barons were gradually approaching the modern conception, which regards it as a privilege rather than a burden to attend the commune concilium—the embryo Parliament—of the King.

It was otherwise with the duties of military service, which were rendered every year more unwillingly, partly because of the increased frequency of warlike expeditions, partly because of the greater cost of campaigning in distant lands like Poitou, partly because the English barons were completely out of sympathy with John’s foreign policy and with him. We have seen that the want of definition in the Conqueror’s reign left to future ages a legacy of strife. William and his barons lived in the present; and the present did not urgently call for definition. Therefore, the duration of the military service, and the conditions on which exemption could be claimed, were originally vague; but the return due (servitium debitum) for each knight’s fee was gradually fixed by custom at the service of one fully armed horseman during forty days. There were still, however, innumerable minor points on which disputes might arise, and these remained even in 1215. Indeed, although several chapters of the Charter attempted to settle certain of these disputed points, others were left as bones of contention to subsequent reigns: for example, the exact equipment of a knight; the liability to serve for more than forty days on receiving pay for the extra time; what exemption might be claimed by churchmen; how far a tenant might compromise for actual service by tendering money; whether attendance and money might not both be withheld, if the King did not lead his forces in person; and whether service was due for foreign wars equally as for home ones.

Difficulties increased as time went on. The Conqueror’s followers had estates on both sides of the Channel: his wars were theirs. Before John’s reign, these simple relations had become complicated by two considerations. By forfeitures and the division of inheritances, holders of English and of Norman fiefs had become distinct. On the other hand, the expansion of the dominions of the English kings increased the number of their wars, and the expense of each expedition. The small wars with Wales and Scotland formed sufficient drain on the resources of English magnates without their being summoned to fight in Maine or Gascony.

Were the barons bound to follow John in a forlorn attempt, of which they disapproved, to recover his lost fiefs from the French Crown? Or were they bound to support him only in his legitimate schemes as King of England? Or were they, by way of compromise, liable for services in the identical possessions held by William the Conqueror at the date when their ancestors first got their fiefs—that is, for wars in England and Normandy alone? So early as 1198 the Knights of St. Edmunds refused to serve in Normandy, while offering to pay scutage. The northern barons in 1213 declared that they owed no service whatsoever out of England. This extreme claim put them clearly in the wrong, since John could produce precedents to the contrary. When, on his return from the unfortunate expedition of 1214, he demanded a scutage from all who had not followed him to Poitou, the malcontents declared that they had no obligation either to follow him out of the kingdom, or to pay a scutage in lieu thereof. Pope Innocent was probably correct in condemning this contention as founded neither on English law nor on feudal custom. There is some ground for believing that a compromise was mooted on the basis that the barons should agree to serve in Normandy and Brittany, as well as in England, on being exempted from fighting elsewhere abroad.

A definite understanding was never arrived at: chapter 16 of Magna Carta provided that existing services were not to be increased, without defining what these were. This was to shelve the difficulty: the dispute went on under varying forms and led to an unseemly wrangle between Edward I. and his Constable and Marshal, dramatized in a classic passage by Walter of Hemingburgh. Strangely enough, the Confirmatio Cartarum of 1297, which was, in part, the outcome of this later quarrel, omits (like Magna Carta itself) all reference to foreign service. The omission from both charters of all mention of the chief cause of dispute is noteworthy. It must be remembered, however, that the question of liability to serve abroad had practically resolved itself into that of liability to scutage, and that chapters 12 and 14 of the Charter of 1215 provided an adequate check on the levy of all scutages; but this is a subject that requires separate and detailed treatment.

IV. Scutage. The Crown did not always insist on personal service, but was frequently willing to accept a commutation in the form of a money payment. The subject of scutage is one of the most vexed of questions, all received opinions of yesterday having to–day been thrown into the melting pot. The theories of Stubbs and Freeman, once universally accepted, require substantial modifications. Four propositions may be stated with some confidence: (1) that scutage is an ambiguous term with a vague general meaning as well as a narrow technical meaning; (2) that the importance of the changes introduced by Henry II. in 1156 and 1159 has been much exaggerated; (3) that scutage was always in the option of the King, never of the barons, his tenants; and (4) that at a later time, probably during John’s reign, scutage changed its character, and became, partly through altered circumstances and partly by the King’s deliberate policy, a much more burdensome exaction. Each of these propositions requires explanations:

(1) The proper technical meaning of scutagium or “shield–money” is a money payment of so much per “shield” (that is, per knight’s fee) by a tenant in lieu of actual attendance in the army of his feudal lord: it is, as Dr. Stubbs explains, “an honourable commutation for personal service.” The word, however, is also more loosely used for any exaction assessed on a feudal basis, irrespective of the occasion of its levy; and, in this wider sense, includes feudal aids and other payments as well.

(2) Professor Freeman, Dr. Stubbs, and their adherents held that one of Henry’s most important reforms was the invention of scutage; that he allowed his Crown tenants at their discretion to substitute payments in money for the old obligation of personal service in the field—this option being granted to ecclesiastics in 1156, and to lay barons in 1159. Such a theory had a priori much to recommend it. A measure of this nature, while giving volume and elasticity to the resources of the Crown, was calculated subtly to undermine the basis of the feudal tie; but Henry, far–seeing statesman as he was, could not discard the ideals of his own generation: no evidence that he made any sweeping change is forthcoming. On the contrary, his grandfather, Henry I., is shown by the evidence of extant charters to have accepted money in place of the services of knights when it suited him (notably from church fiefs in 1109), and there is no evidence (direct or indirect) to show that the grandson accepted such commutation when it did not suit him. Scutage was thus known in England half a century before 1156—the traditional date of its introduction.

(3) Further, neither before nor after the reign of Henry II. had the individual baron any option of tendering at his discretion money in place of personal service. The conclusions on this subject formulated by Dr. Horace Round lie implicitly in the examples from the Pipe Rolls stored in the famous work of Madox. From these it would appear that the procedure of the Exchequer of the great Angevin and his two sons might be explained in some such propositions as these:

(a) The option to convert service into scutage lay with the Crown; not with the tenants, either individually or as a body. When the King summoned his army, no baron could (as Professor Freeman would have us believe) simply stay away under obligation of paying a small fixed sum to the Exchequer. On the contrary, Henry and his sons jealously preserved the right to insist on personal service whenever it suited them; efficient substitutes were not always accepted, much less money payments.

(b) If the individual wished to stay at home he required to make a special bargain with the King, paying such sum as the King thought fit to demand and sometimes having to find a substitute in addition. Exorbitant sums (not properly “scutages” at all) might thus be extorted from stay–at–homes ne transfretent or pro remanendo ab exercitu—phrases which appear in the Pipe Rolls of Richard. A Crown vassal in John’s twelfth year made fine “that he might send two knights to serve for him in the army of Ireland.” In such cases, each baron made his own bargain with the Crown: a scutage, on the contrary, “when it ran in the land” was at a uniform rate.

(c) The tenant–in–chivalry who stayed at home without first making his bargain was in much worse plight. He had broken faith, and in strict feudal theory had forfeited his fief by failing to perform the service for which he held it. He was “in mercy,” and might be glad to accept such terms of pardon as a gracious king might offer him. Sometimes, quite small amercements were inflicted: the Abbot of Pershore in 1196 escaped with 40s: But the Crown sometimes insisted on total forfeiture.

It was the duty of the Barons of Exchequer to determine whether lands had thus escheated by default, and also to determine the amount of “forfeit” to be taken where confiscation was not justified or insisted on. The barons wished to refer such questions to the judicium parium.

(4) Scutage tended continually to become more burdensome:

(a) With new inventions and more complicated fashions in arms and armour for man and horse, and increased rates payable for the hire of mercenaries, the expenses of a campaign steadily increased. It was not unnatural that the normal rate of scutage should increase in sympathy. Under Henry the recognized maximum had been two marks, the exact equivalent of 40 days’ wages at the normal rate of 8d. per diem. Usually he was content with a smaller sum per knight’s fee: 20s., 13s. 4d. or even 10s. being sometimes taken.

(b) A second method of increasing the yield of scutage was to readjust the assessment on which it was based, by increasing the number of contributory knights’ fees. Henry II. in 1166 had invited his unsuspecting barons to furnish him with details of the number of knights actually enfeoffed on their lands both before and after the death of his grandfather; and then treated the latter as a sort of unearned increment, the benefit of which should be shared by the Crown. The amount of servitium debitum as previously reckoned was increased by the addition of the number of knights of the novum feoffamentum, that is, of those created subsequent to the death of Henry I. The basis of assessment thus fixed in 1166 remained unaltered at John’s accession.

(c) The third respect in which scutages tended to become more burdensome was in their increased frequency. This was, in part, a consequence of the growth of the Empire of the Kings of England, bringing with it a widening of interests and ambitions, and an increase in the number and expense of wars. Much depended, however, on the spirit in which this feudal prerogative was used, on the amount of consideration given to the needs and interests of the barons. Neither Henry nor Richard seems to have regarded it as other than an expedient to be reserved for special emergencies, not as a permanent source of revenue in normal times.

Henry II. seems to have levied money in name of scutage only when actually at war—on seven occasions in all during a reign of thirty–five years; and only once at a rate exceeding 20s., if we may trust Mr. Round, and that when he was putting forth a special effort against Toulouse. Richard I., rapacious as he was, levied, apparently, only four scutages during ten years, and the rate of 20s. was never exceeded even in the King’s hour of urgent need,—in 1194, when the arrears of his ransom had to be paid and preparations simultaneously made for war in Normandy.

If it can be shown that John altered established usages under every one of these heads, breaking away from all restraints, and that too in the teeth of the keen opposition of a high–spirited baronage whose members felt that their pride and prestige as well as their money–bags were attacked, a distinct step is taken towards understanding the crisis of 1215. Such knowledge would explain why a storm, long brewing, burst in John’s reign, neither sooner nor later; and even why some of the disreputable stories told by the chroniclers and accepted by Blackstone and others, found inventors and believers.

It is here maintained that John did make changes in all of these directions; and, further, that the incidence of this increase in feudal burdens was rendered even more unendurable by two considerations:—because at his accession there remained unpaid (particularly from the fiefs of the northern knights) large arrears of the scutages imposed in his brother’s reign, and because in June, 1212, he drew the feudal chain tight by a drastic and galling measure.

That John elevated scutage from a weapon reserved for emergencies into a regular source of revenue, and that he raised the rate demanded beyond the recognized maximum of two marks, becomes apparent from a glance at the table of scutages extorted during his reign:

It will be seen that, in his very first year, John took a scutage at two marks per scutum. Next year he wisely allowed a breathing space; then without a break in each of the third, fourth, fifth, sixth and seventh years of his reign, scutages were extorted in quick succession at the same high rate. Fines, in addition to this scutage of two marks, were exacted from those who had not made the necessary compromise for personal service in due time.

These scutages were collected with increasing difficulty, and arrears accumulated; but the spirit of opposition increased even more rapidly. In 1206, apparently, the breaking point was almost reached. Accordingly, in that year, some slight relaxation was allowed—the annual scutage was reduced from two marks to 20s. John’s needs, however, were as great as ever, and would prevent further concessions, unless something untoward happened. Something untoward did happen in the summer of 1207, when John quarrelled with the Pope. This postponed his quarrel with the baronage. John had, for the time being, the whole of the confiscated property of the clergy in his clutches. The day of reckoning for this luxury was still far distant, and the King could meanwhile enjoy a full exchequer without goading his Crown tenants to rebellion. For three years no scutage was imposed. In 1209, however, financial needs again closed in on John, and a new scutage of two marks was levied; followed in the next year actually by two scutages, the first of two marks against Wales, and the second of 20s. against Scotland. John had no sense of moderation. These three levies, amounting to a total of five–and–a–half marks per fee within two years, strained the tension almost to breaking point.

During the two years following (Michaelmas, 1211, to Michaelmas, 1213) no scutage was imposed. John, however, although he thus a second time relaxed the tension, had no intention to do so for long. On the contrary, he determined to ascertain if scutages could not be made to yield more in the future. By writs, dated 1st June, 1212, he instituted a strict Inquest into the amount of service exigible from every estate in England. Commissioners were appointed to take the sworn verdicts of local juries as to the amount of liability due by each Crown vassal. Mr. Round considers that previous writers have unaccountably ignored the importance of this measure, “an Inquest worthy to be named in future by historians in conjunction with those of 1086 and 1166,” and describes it as an effort “to revive rights of the Crown alleged to have lapsed.” John intended by this Inquest, the returns to which were due on the 25th June, to prepare the necessary machinery for wringing the uttermost penny out of the next scutage when occasion for one again arose. That occasion came in 1214.

Up to this date, even John had not dared to exact a rate of more than two marks per knight’s fee; but the weight of his constant scutages had been increased by the fact that he sometimes exacted personal services in addition, and that he inflicted crushing fines upon those who neither went nor arranged beforehand terms of composition with the King.

Thus insidiously throughout the entire reign, the stream of feudal obligations steadily rose until the barons feared that nothing of their property would be saved from the torrent. The normal rate of scutage had been raised, the frequency of its imposition had been increased, the conditions of foreign service had become more burdensome, and the objects of foreign expeditions more unpopular; while attempts were sometimes made to exact both service and scutage in the same year. The limit of the barons’ endurance was reached when, under circumstances peculiarly inauspicious, John, in May, 1214, demanded a new scutage at the unprecedented rate of three marks on every fee, grounded doubtless on the searching inquest of 1212.

This outline of the history of scutage makes plain that grievances connected with its abuse formed one of the chief incentives to the insurrection that resulted in the winning of the Great Charter.