The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Second Edition.
• From Preface to First Edition.
• Historical Introduction
• Part I.: Events Leading to Magna Carta.
• Part II.: Feudal Grievances and Magna Carta.
• Part III.: Magna Carta: Its Form and Contents.
• Part IV.: Historical Sequel to Magna Carta.
• Part V.: Magna Carta: Original Versions, Printed Editions and Commentaries.
• Text, Translation, and Commentary
• Preamble.1
• Chapter One.
• Chapter Two.
• Chapter Three.
• Chapter Four.
• Chapter Five.
• Chapter Six.
• Chapter Seven.
• Chapter Eight.
• Chapter Nine.
• Chapter Ten.
• Chapter Eleven.
• Chapter Twelve.
• Chapter Thirteen.
• Chapter Fourteen.
• Chapter Fifteen.
• Chapter Sixteen.
• Chapter Seventeen.
• Chapter Eighteen.
• Chapter Nineteen.
• Chapter Twenty.
• Chapter Twenty–one.
• Chapter Twenty–two.
• Chapter Twenty–three.
• Chapter Twenty–four.
• Chapter Twenty–five.
• Chapter Twenty–six.
• Chapter Twenty–seven.
• Chapter Twenty–eight.
• Chapter Twenty–nine.
• Chapter Thirty.
• Chapter Thirty–one.
• Chapter Thirty–two.
• Chapter Thirty–three.
• Chapter Thirty–four.
• Chapter Thirty–five.
• Chapter Thirty–six.
• Chapter Thirty–seven.
• Chapter Thirty–eight.
• Chapter Thirty–nine.
• Chapter Forty.
• Chapter Forty–one.
• Chapter Forty–two.
• Chapter Forty–three.
• Chapter Forty–four.
• Chapter Forty–five.
• Chapter Forty–six.
• Chapter Forty–seven.
• Chapter Forty–eight.
• Chapter Forty–nine.
• Chapter Fifty.
• Chapter Fifty–one.
• Chapter Fifty–two.
• Chapter Fifty–three.
• Chapter Fifty–four.
• Chapter Fifty–five.
• Chapter Fifty–six.
• Chapter Fifty–seven.
• Chapter Fifty–eight.
• Chapter Fifty–nine.
• Chapter Sixty.
• Chapter Sixty–one.
• Chapter Sixty–two.
• Chapter Sixty–three.
• Appendix. Documents Relative To, Or Illustrative Of, Magna Carta.
• I.: The Charter of Liberties of Henry I.1 (1100.)
• II.: The Second Or Oxford Charter of Stephen.1 (1136.)
• III.: Charter of Henry II.1 (circa 1154.)
• IV.: The So–called “unknown Charter of Liberties” of John.2 (circa 1214–1215.)
• V.: The Articles of the Barons.1 (1215.)
• VI.: Writs Supplementary of John’s Great Charter.
• VII.: The Great Charter of Henry III.2 (third Reissue, 11th February, 1225.)
• VIII.: Carta De Foresta.1 (6 November, 1217.)

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 appropriated all his revenues.1

Such double extortion had long been forbidden to mesne lords; Magna Carta was 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 pledged the King to “warrant” the title against all rival claimants. This expedient was actually adopted in the revised Charter of 1216.2

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 illustrates the theory underlying wardship. Only a knight was capable of bearing arms; hence, 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 provided that the lands of a minor should remain in wardship, although he was made a knight.3 Incidentally, the same Charter declared twenty–one years to be the period at which a military tenant came of age, a point on which John’s Charter is 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.1

[1 ]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.” Taswell–Langmead (Engl. Const. Hist., 51 n.) states the amount at half a year’s profits. He cites no authorities, and is probably in error. Dialogus, II. x. E. p. 135, forbids relief to be taken, when wardship had been exercised per aliquot annos.

[2 ]See chapter 3 of 1216, which stipulates that no lord shall have wardship “antequam homagium ejus ceperit.” See Coke, Second Institute, 10. Cf. Adams, Origin, 204, on “homage as a recognition of title.”

[3 ]Coke, Ibid., p. 12, makes a subtle and unwarranted distinction 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 lands cannot “remain” in wardship if they were not in it before.

[1 ]See Coke on Littleton, Book II. c. iv. s. 112; and cf. infra, cc. 37 and 43 for the “prerogative wardship” of the Crown.