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 FORTY–THREE.

Si quis tenuerit de aliqua eskaeta, sicut de honore Wallingfordie, Notingeham, Bolonie, Lancastrie vel de aliis eskaetis, que sunt in manu nostra, et sunt baronie, et obierit, heres ejus non det aliud relevium, nec faciat nobis aliud servicium quam faceret baroni si baronia illa esset in manu baronis; et nos eodem modo eam tenebimus quo baro eam tenuit.

If anyone holding of some escheat (such as the honour of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats which are in our hands and are baronies) shall die, his heir shall give no other relief, and perform no other service to us than he would have done to the baron, if that barony had been in the baron’s hand; and we shall hold it in the same manner in which the baron held it.

This chapter reaffirms a distinction recognized by Henry II. but ignored by John. Crown–tenants were divided into two classes, according as their holdings had been originally granted by the Crown, or by some mesne lord whose barony had subsequently escheated. The latter class received preferential treatment from Henry II. for reasons to be immediately explained. A mesne lord had no right to appropriate the holdings of sub–tenants of a tenant who had incurred escheat; but the Crown did not submit to this just restriction. The King treated all sub–tenancies as wiped out by the mere fact that their lord’s fief had escheated to the Crown.

Henry II. mitigated in practice the full severity of this theory, confirming as of grace, or from motives of policy, or in return for money, claims which he refused to admit as matter of right. The tenants of escheated baronies were accepted as tenants in capite of the Crown.1 Not only so; but Henry did not allow them to be prejudicially affected by the change. The King would only take from them those services and feudal dues which they had been wont to render to the lord of the barony previous to its escheat. This just and lenient policy explains the origin of the division of royal tenants into two classes; tenants who held of Henry ut de corona, and tenants who held of him ut de escaeta, ut de honore, or ut de baronia (phrases used synonymously).2 In respect of such obligations as were heavier for ordinary Crown tenants than for tenants of mesne lords, holders of Crown fiefs ut de escaeta were placed on the more favoured footing. Two illustrations may be given. While tenants ut de corona under Henry had to pay large and arbitrary reliefs, those ut de escaeta paid no more than 100s. per knight’s fee.3 Nor was their obligation of “suit” to be increased: “the tenants of any honour or manor which had come by escheat to the Crown, were not suitors of the Curia Regis, but of the court of the honour or manor which had so escheated.”1

John ignored this distinction, extending to tenants ut de escaeta the more stringent rules applicable to tenants ut de corona. Magna Carta reaffirmed the distinction; and, not content with enunciating a general principle, made two particular applications of it: neither reliefs nor services of former tenants of baronies were to be augmented by reason of the fact that such baronies had escheated to the Crown.2 Henry III.’s Charter of 1217 emphasized a third application of the general rule, declaring that he would not, by reason of an escheated barony, claim escheat or custody over the sub–tenants of that barony.3 To understand this concession, it must be remembered that under Henry III. sub–tenants of baronies were still liable to have their titles reduced through the escheat of their lord; while sub–tenants of those who were themselves sub–tenants were not exposed to a similar mischance. Here also, the position of Crown fiefs ut de escaeta was to be assimilated to that of fiefs of mesne lords, and differentiated from that of Crown fiefs ut de corona. Sub–tenancies of escheated baronies were not to be wiped out, but to subsist, and the Crown (or its grantee) would take the escheat, subject to all liabilities to, and rights of, sub–tenants.

The Crown seems not to have strictly observed this rule in practice. Article 12 of the Petition of the Barons in 12581 complained that Henry had granted charters conferring rights not his to give (aliena jura), but which he claimed as escheats. An act of the first year of Edward III. narrated how the Crown had confiscated, from purchasers, tenements held of the Crown “as of honours,” thus treating them “as though they had been holden in chief of the King, as of the Crown.” Redress was promised by the statute:2 but irregularities continued throughout the earlier Tudor reigns; and the first Parliament of Edward VI. passed an act to protect purchasers of lands appertaining to honours escheated to the Crown.3

[1 ]Royal clemency in this respect could not be relied on by the sub–tenants of small escheated fiefs (not reckoned as honours or baronies). This seems to be the opinion of Madox, Baronia Anglica, 199: “If a fee holden of the Crown in capite escheated to the King and was not an Honour or Barony, then such fee did not (that is to say, I think it did not) vest in the Crown in the same plight in which it was vested in the said tenant in capite.” Cf. also ibid., 203.

[2 ]See Madox, Baronia Anglica, 169–171; also Pollock and Maitland, I. 261, and authorities there cited.

[3 ]See Dialogus, II. x. F, and ibid., II. xxiv. The same rule applied to subtenants of baronies in wardship (which was analogous to temporary escheat): when the see of Lincoln was vacant in 1168, the heirs of sub–tenants paid to Henry only what they would have paid to the bishop; one giving £30 for six fees, and another 30 marks for four. See Pipe Roll, 14 Henry II., and cf. supra, c. 2. In the matter of scutage, also, a distinction was recognized: while tenants ut de corona might be compelled to serve in person without an option, Crown–tenants ut de honore (and, a fortiori, sub–tenants also) might claim exemption on tendering scutage. See case of Thomas of Inglethorpe in 12 Edward II., cited by Madox, Baronia Anglica, 169–171.

[1 ]Report on the Dignity of a Peer, I. 60.

[2 ]The need for this reference to relief is not, at first sight, obvious, since c. 2 of Magna Carta, by forbidding John to exact from Crown–tenants of either class the arbitrary sums taken by his father, would seem to have already secured them from abuse. Probably, however, c. 43 sought to prevent John from treating each tenant of the escheated barony as holder of a new barony of his own, and therefore liable to a baron’s relief of £100 instead of the £25 he ought to pay for his five fees, or £50 for his ten fees, or as the case might be. The case of William Pantol (see Pipe Roll, 9 Henry III., cited Madox, I. 318) seems to illustrate this. He was debited with £100 of relief, but protested that he held nothing of the Crown save five knights’ fees of the land which was of Robert of Belesme. This plea was upheld, and £75 of the amount debited was written off.

[3 ]See c. 38 of 1217, and cf. the gloss given by Bracton (II. folio 87b) which makes the meaning somewhat less obscure. The Charter of 1217 contained a saving clause: “unless the holder of the escheated barony held directly of us elsewhere.” Bracton added a second proviso, namely, unless the said sub–tenants (now Crown–tenants ut de escaeta) had been enfeoffed by the King himself.

[1 ]See Sel. Charters, 384; but see Adams, Origin, 344 n.

[2 ]See 1 Edward III., stat. 2, c. 13, Statutes of Realm, I. 256.

[3 ]See 1 Edward VI., c. 4, Statutes of Realm, III. 9.