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 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 small3 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.1 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

(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.3 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.4 (b) Small Serjeanties5 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.1

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.2

[3 ]Pollock and Maitland, I. 304, read “parva” as an untechnical word. Round, Serjeanties, 35–6, finds in this chapter the origin of the distinction between “grand” and “petty” serjeanties, and compares the distinction made in c. 14 between greater and lesser barons.

[1 ]Cf. supra, pp. 55–7 and 61–2.

[2 ]II. viii. s. 158.

[3 ]Cf. Glanvill, VII. c. 10. “When any one holds of the King in capite the wardship over him belongs exclusively to the King, whether the heir has any other lords or not; because the King can have no equal, much less a superior.” Yet the King is not to have such wardship “because of burgage.”

[4 ]Cf. Petition of Barons (1258), c. 2; Prov. of West. (1259), c. 12. Glanvill, VII. c. 10, had laid it down that burgage tenure could not give rise to prerogative wardship.

[5 ]See supra, p. 56.

[1 ]See Bracton, folio 87b. The Note–book, case 743, contains a good illustration. The motive for these restrictions was to prevent injustice to mesne lords. It was probably, however, an indirect consequence of Magna Carta that a similar rule came to be applied where no mesne lord was injuriously affected. In 1231 a certain Ralf of Bradeley died, who had held two separate freeholds of the Crown, (i) a small fee by petty serjeanty of twenty arrows a year, and (ii) land of considerable value held in socage. The Crown took possession of both estates, on the assumption that wardship over the petty serjeanty brought with it a right of wardship over the socage lands also (although these would have been exempt if they had stood alone). The King sold his rights for 300 marks. Ralf’s widow claimed the wardship of the socage lands, on the ground that these were of much greater value than those held by serjeanty. Her argument was upheld, and the 300 marks refunded to the disappointed purchaser. See Pipe Roll, 5 Henry III., cited Madox, I. 325–6.

[2 ]See Petition of the Barons, Article 2 (Select Charters, 383). C. 53 of Magna Carta reverts to prerogative wardship, granting redress, although not summary redress, where John, or his father or brother, had illegally extended it by occasion of socage, etc. See also supra, p. 368. Round, Eng. Hist. Rev., XXVIII. 156, cites from Cal. Inq. post mortem, III. 406–7, an interesting case of prerogative wardship decided against the Crown in 1301. Orpen, Ireland, II. 234, cites two Charters in which John renounces prerogative wardship. C. 43 infra (amended by c. 38 of 1217) guards against another abuse of prerogative wardship.