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 small 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.

In these provisions the Charter reverts to the subject of wardship, laying down three rules, which will be better understood when their sequence is altered, the second being taken first. (1) Ordinary wardship. The reason for claiming wardship from lands held in chivalry, namely, that a boy could not perform military service, did not apply to fee–farm, socage, or burgage. There was much looseness of usage, however; and of this John took advantage. The Charter stated the law explicitly; wardship was not due from any such holdings, except in the anomalous case where lands in fee–farm expressly owed military service. 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, as over great serjeanties. By Littleton’s time, the law had changed: petty serjeanties were then exempt.

(2) Prerogative wardship. When the heir of a tenant–in–chivalry held military fiefs of different mesne lords, each of these lords enjoyed wardship over his own fief. This was 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. 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 tenure. It was outrageous to claim prerogative wardship in respect of fee–farm, socage, or burgage lands, which were exempt even from ordinary wardship. John was made to promise amendment. (b) Small Serjeanties were in a different position. Magna Carta did not abolish the Crown’s rights of ordinary wardship over these, but forbade that this should form an excuse for prerogative wardship over the wider fiefs of other lords.

Prerogative wardship (even in the limited form admitted by Magna Carta) might involve a double hardship on the mesne lord. Suppose that the common tenant held lands from a mesne lord on condition of say, five knights’ service, as well as 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.