The Magna Carta Project

Clause 37 was concerned with wardship, and with the ways in which a king could exploit his particular rights in it.  All lords had the right to wardship – the custody of the heir, and property, of a free tenant, when that heir was a minor – and the king was no exception.  But his rights were more extensive, since what was known as his `prerogative wardship’ gave him the right to the custody during a minority not only of the land which a tenant-in-chief had held land directly from the crown, but also of all the property which such a tenant had held of other lords.  The fact that by the early thirteenth century there was a variety of tenures under which men could hold land freely, that they were often confused with one another, and that they could be unstable and liable to change, created opportunities for the exercise of prerogative wardship which Magna Carta aimed to restrict.  (That the drafters of Magna Carta clearly found it difficult to produce a satisfactory text of this Clause is a pointer to the complexity of the basic issues.)  Although a passage in Clause 53 suggests that there were opponents of King John hostile to prerogative wardship as such, Clause 37 did not attempt to abolish it, only to limit its application.  Actual evidence for its exploitation is limited, and cases can be more often suspected than demonstrated.  But the abbot of Bury St Edmunds was recorded as expressing anxiety about its impact under Richard I, and King John was sufficiently aware of its effects to be willing to remit them when he wanted to grant a favour.  The  widespread inquests into tenures which he ordered in 1212 may have been partly organised with an extension of prerogative wardship in mind, and have aroused fear for the same reason. The resentment provoked by John’s pursuit of this right is shown by Clause 37 itself, in which the king was compelled to renounce his claims to the wardship of lands which sub-tenants had held by knight service from other lords, if he had no other justification than that they had also held land from himself by non-military services.

The drafters of Magna Carta had a good deal of difficulty with Clause 37, which dealt with the issue of wardship, and especially with the crown’s pre-eminent right known as `prerogative wardship’.  Land tenures had become highly complicated by the early thirteenth century, with properties being frequently sub-divided and held on a variety of terms.  As well as knight service, there was also burgage tenure, found in towns, socage and fee-farm tenures, under which lands were essentially held for rent, and serjeanty tenure, which gave men lands in return for a variety of specified services – in some cases military, and close to knight service, in others administrative, and in yet others eccentric or even absurd.  But whatever the nature of the service, and however large or small the estate for which it was done, if the latter was held directly from the crown, then its holder was a tenant-in-chief, and if he died leaving an underage heir, then the custody not only of that land, but also of any other lands he had held of any other lords, became the king’s for as long as the heir’s minority lasted.  The king’s claims could thus be wide, and the fact that tenures were often ill-defined, and liable both to change and to confusion with one another, gave him many opportunities to make them wider still.

Evidence for the king’s abuse of his rights is in fact hard to pin down, though there are a number of cases in which it can be suspected.  In around 1190 the abbot of Bury St Edmunds expressed anxiety that land which was the subject of an inheritance dispute might come under royal control if the tenant `should marry a free woman with a holding of as much as one acre directly from the king’ – a neat encapsulation of the dangers which prerogative wardship posed to other lords.  In 1208 King John granted remission of its effects as a favour to William Marshal, while the widespread inquests held into tenures in 1212 may well have been intended, at least in part, to enable him to make the most of his rights in this respect.  The investigations were particularly concerned with knight service and serjeanties, but in some counties inquired about socage and fee-farm tenures as well.  Clause 37 itself doubtless reflected the fears such inquiries provoked, as well as the resentments aroused by the king’s exploitation of prerogative wardship.  It did not abolish the latter right (though there are signs in Clause 53 that there were barons who wanted to do this), but brought it under control, by compelling the king to abandon his claims to the wardship of lands held by knight service of other lords, in cases where those claims were based solely upon a non-military tenancy – in future they could only be valid when the deceased tenant-in-chief had held his land from the crown by knight service.

Citation

Prerogative wardship

Clause 37 occurs in a sequence of clauses with few obvious connections between them, and was, indeed, so placed in Magna Carta as to separate two clauses which were linked.  For although both 36 and 38 were concerned with the administration of justice, Clause 37 was intended to remedy grievances arising from the king’s exploitation of aspects of his feudal supremacy. The complexity of the tenures whereby land was held in England had become a matter of remark by the early twelfth century,1 and certainly nothing had happened to disentangle them by 1215.  It is hardly an exaggeration to say that all land, free or unfree, was held in return for services of some kind, whether spiritual – the prayers required following a grant in frankalmoin, under which most ecclesiastical land was held – or unambiguously secular.  But although knight service was certainly the most important, and prestigious, of the tenures of free men, it was not the only one, and the relationship between them all was apt to become confused.  Clause 37 dealt with four other tenures, and attempted to prevent the king from taking undue advantage of the intricacies of feudal landholding through the exercise of what has come to be known as prerogative wardship. 

When a free landholder died leaving an underage heir, the custody of the latter’s person and inheritance, his wardship, became the responsibility of his lord, who could exercise it himself or grant it to a third party, usually at a price.  If the lord in question was the king, and the property one held `in chief’, that is, directly from the crown, then naturally the king claimed the wardship.  When, as often happened, a landowner held estates of more than one lord, it was customary, according to the legal treatise Glanvill, written late in the reign of Henry II, for the wardship of his heir to be given to his chief lord, that is, the lord from whom the dead man’s ancestors had held land first.2  But by 1215 Glanvill was becoming out of date, for by then it was increasingly usual for each lord of whom a deceased landowner had held an estate to receive the wardship of it during the minority of the heir, with only the custody of the heir’s person being entrusted to the chief lord.  There was one exception to this developing rule, however, namely the king, who as the pre-eminent lord (`the lord king can have no equal, much less a superior’, in Glanvill’s words) continued to enjoy the rights once possessed by all such superior lords.3 Under Henry II and his sons, neither the size of a property, nor the terms under which it had been held, were allowed to have any relevance to the king’s overriding right to this, his `prerogative wardship’, which as Clause 37 itself makes clear, was exploited to the utmost.  If a dead man had held any land at all directly from the crown, then not only it, but also any other lands he had held, became subject to royal control for as long as his heir’s minority lasted – all were treated as if they had been held in chief.  

Prerogative wardship thus entailed an intrusion of royal power into the lordships of others which resulted in their holders losing control of properties, and of opportunities for patronage, which they could otherwise have expected to enjoy.  Clause 37 did not attempt to abolish it entirely, but rather to curb its application and impose restraints upon the king’s exploitation of it.  However, this limited aim, together with the innate complexity of the issue, created problems for the drafters of Magna Carta, who seem to have found it hard to achieve a clear and succinct statement of their intentions, and it is evident that a fair amount of revision, and probably debate, was needed before a satisfactory text could be produced.  Clause 37 was the equivalent of Number 27 among the Articles of the Barons, and as it now stands, and has long been conventionally printed, both it and that article consist of a single consecutive piece of text.  But there are in fact some significant differences between them, in terms of both arrangement and content. 

Defining the issues

Both Article and Clause dealt with four types of free tenure – fee-farm, socage, burgage and serjeanty – as well as knight service.  Fee-farm, which entailed the straightforward payment of a monetary render, was not dissimilar to socage, which involved rents or payments in kind, both usually on a modest scale, while burgage was the characteristic tenure of the townsman, who similarly held his property for a monetary rent.  Serjeanty, however, involved tenure in return for particular services,4 which could be military, in an army or castle (this could bring it close to knight service), or administrative – the king’s hawking and hunting were largely managed by serjeants.  A number of curial offices were held by serjeanty, some of them largely ceremonial, for instance involving duties performed only at coronations, but others distinctly mundane, like the oversight of the court prostitutes, and the same was true of a whole range of relatively trivial tasks linked only by their involving a specified service to the king.  But despite the insignificance of some of the duties entailed upon serjeanty tenure, some of the greatest men in the realm held lands in this way, and it was probably the status which it could confer (and perhaps also the value of some of the estates involved), together with the barons’ acceptance that the king’s right to the wardship of serjeanty lands, unlike those of the other tenures concerned, could only be qualified, not annulled altogether, which was largely responsible for its being set apart from the other tenures.  In the surviving engrossments of the 1215 Charter,5 and also in the contemporary French vernacular translation,6 the sentence dealing with it was dealt with by itself, in a discrete clause dealing with serjeanty alone.

Clause 37 did more than separate its provision for serjeanty from that made for other tenures, however, for in both its parts it also amplified and clarified an article whose contents were often over-condensed and obscurely expressed. In its first sentence Clause 37 replaced the Article’s vague `wardship of the knights’ (custodiam militum) with a longer phrase spelling out that what was at issue was the wardship of the heir to land which its previous holder had held of another lord by knight service, and which had now become liable to seizure by the king because that holder had also held property directly from the crown by fee-farm, socage or burgage.  The Clause then went on to set out explicitly, as the Article had failed to do, that the king could only claim wardship of land held by fee-farm, socage or burgage if the property in question owed knight service as well.  (In its final statement this second restriction was seemingly restricted to fee-farm, but although it was not unknown for land to be held by fee-farm and knight service, it seems likely that socage and burgage were also understood as being comprehended within it.) 

Where serjeanty was concerned, the Clause again made it clear that the wardship of an heir, and of land held by knight service, was the issue involved, this time inhibiting the king’s use of his prerogative to occupy a dead man’s estate on the grounds that he had also held lands directly from the crown in return for some unimportant service.  Article 27 had made the beneficiary the `free man’, who was not to lose his militia `by reason of petty serjeanties’.  The implied association of personal freedom with knighthood can have served only to confuse, and was dropped in Magna Carta.  Instead it was spelt out that the provision was intended to benefit lords, while the generalised militia was replaced by the more precise servicium militare.  The two terms could be used as synonyms, as they were, for instance, in a lawsuit heard in the bench early in John’s reign.  Earl William de Warenne, suing for a wardship against the abbot of Bury St Edmunds in Easter term 1200, claimed that the youth’s father had held lands of himself per servicium militare; when the case was decided in Michaelmas term 1201, Warenne employed almost identical terms to describe the tenure, except that it was now said to have been per militiam.7   The employment of militia in the Article may well have been coloured by the word’s associations with knighthood, in the early thirteenth century increasingly a rank with aristocratic overtones rather than an essentially military occupation.  But when pleaders in the royal courts could use militia and servicium militare to mean the same thing, it seems reasonable to believe that the men who negotiated, and then drafted, Magna Carta also saw them in the same narrowly-focused light. 

Clause 37 served the interests of the tenants-in-chief by compelling the king to renounce the exercise of prerogative wardship over lands held from themselves, on the strength of their tenants’ having also held land from the crown by fee-farm, socage or burgage.  And it went on to deny the king the wardship of lands held from him by fee-farm (and, by extension, by socage and burgage as well), unless the terms of tenure specifically included knight-service, which thus became the basic criterion for the exercise of the king’s rights where this issue was concerned.   In imposing this last prohibition, the barons were in fact demanding that the king should observe what, in some cases at least, appears to have been already regarded as customary practice. In a lawsuit in which Henry III was a party, concluded in 1228 but referring back to the very end of John’s reign, William FitzRobert’s widow Lucy resisted the king’s claim to the wardship of her son on the grounds that the lands from which that claim derived, part of the Wiltshire manor of Upavon, had held been held by her husband in socage, and the king’s attorney accepted her arguments, acknowledging that until the heir came of age both he and the land should be in Lucy’s custody.8  The author of Glanvill had probably thought in much the same way –`The heirs of sokemen, on the death of their ancestors, will be in ward to their nearest blood relatives ...’.9    

Nor was this so only where socage tenure was concerned, for Glanvill stated unequivocally that burgage tenure did not provide grounds for the exercise of prerogative wardship – `only in the case of burgage tenure is the king not preferred to others in the matter of wardship.’10  However, there does not appear to have been an accepted convention on this issue, rather practice varied from borough to borough.11  In 1188 John himself, as count of Mortain, granted a charter to the men of Bristol which (among other privileges) prevented the lords of external fees from claiming the wardship of properties within the walls on the grounds that the tenants of the latter also held lands of them outside the town.12  The very fact of its being so explicitly granted suggests that this franchise was not in fact universally enjoyed, and although it was several times copied in Ireland,13 it appears to have been rarely granted in England (though the Cinque Ports may have been an exception to this rule).  Possibly the extension of Clause 37 to burgage tenure was a measure intended to win urban support, especially in London, in which case John’s charter for Dunwich, issued less than a month after Magna Carta, in which he granted that no-one should have the wardship of the children or lands of `our burgesses’ except such kinsmen or friends as they had appointed themselves, may have represented a royal counter-stroke.14

Complexities of tenure 

Considered as a unity, Clause 37 treated fee-farm, socage and burgage tenures separately from serjeanties, and set them all in contrast to knight service.  But in practice these tenures were not always easily distinguished from one another, for there were sometimes points at which they overlapped or even clashed, thereby creating opportunities for the king to enforce, and extend, what he regarded as his rights at the expense of tenants-in chief.  Examples of multiple tenure include the action between William de Warenne and the abbot of Bury St Edmunds cited above, over the wardship of a boy whose father was a sokeman of the abbot’s, but whose mother was the daughter and heir of a knight – proceedings ended with the earl being awarded `the custody of the boy and of the land which descends to him by knight service on his mother’s side.’15   A similar solution to the same problem was reached some twenty years later – in 1224 Thomas of Arundel, a Somerset landowner, successfully claimed the wardship of John son of Nicholas of Arundel, who may have been his nephew, on the grounds that Nicholas had held a knight’s fee of himself, but did not obtain that of the socage which the latter had also held, which had come to him through his wife and whose custody now reverted to the king.16 

But there were severer problems than that of deciding upon a wardship when more than one tenure was involved, because the tenures themselves could prove either uncertain or unstable.  In 1205 King John granted, or more likely confirmed, eleven and one third bovates in Bradley, Lincolnshire, to Denis the fletcher `our servant’, the lands to be held in return for a yearly farm of four marks (£2. 13s. 4d.).17  Either Denis then disposed of some lands and acquired others, or the terms on which he held some of them were altered, for by 1212 he was holding one and a third bovates `by service of arrows’, later defined as a yearly render of eleven arrows, while still paying four marks per annum for the remaining eleven, and was thus the tenant both by serjeanty and by fee-farm of different parts of the same property.18  Those parts, and the terms on which they were held, would appear to have remained separate thereafter, for in the early 1240s a Ralph of Bradley who was probably Denis’s grandson was recorded as holding a quarter both of Bradley and of nearby Laceby for a yearly payment of 38s. 8d., while one John of Cockerington held a third of Bradley as the tenant in serjeanty, rendering twenty arrows and four marks each year at the exchequer.   In 1232 Henry III had accepted a proffer of £20 marks for the wardship of Ralph’s father’s lands, describing them as both held at farm and as held `by the serjeanty of rendering arrows yearly’, but had to cancel the agreement when Ralph’s widow (who may have been Denis’s daughter) established her own right to the property, as her husband’s next heir.  By this time it was probably becoming hard to tell who held which lands and on what terms.  

Alterations to tenure were sometimes explicitly made.  In 1201 Roger la Veile, who held lands at Fishley and elsewhere in Norfolk (and also in Normandy) as one of the king’s falconers, obtained a royal charter changing the terms of his tenure from serjeanty into a quarter of a knight’s fee.19  Five years later, angered by Roger’s failure to obey an order concerning the custody of a minor, John reversed his own charter, `because we do not want that service to be abandoned, notwithstanding any charter which he has of us concerning knight service’20 (this command does not appear to have taken effect, however, since in 1212 Roger was recorded as still holding all his lands by knight service).21  Tenure by knight service could confer status, which may explain the payment of £40 which William de Moreston, a Kentish landowner, was willing to make in 1199 for holding his lands for one knight’s fee instead of for a yearly fee-farm of 50s. (thereafter he contributed to every scutage of John’s reign – the fact that this would have cost him less than his original fee-farm suggests a further explanation for his initial proffer, especially as he cannot have foreseen how many scutages John would subsequently demand),22 and the proffer of fifty marks (£26. 13s. 4d.) which Ralph FitzPeter, a Northumberland man, made a year later `for having his land by the service of one knight’s fee which he is accustomed to hold by a forest serjeanty’.23  But changes could also be made in the opposite direction, for in 1212 it was recorded that Robert le Napier, who had held a fee at Pishill, Oxfordshire, by right of his wife, had been pardoned his knight service by King John, and was instead required to present a table-cloth (or its value, estimated at 3s.) at the exchequer every Michaelmas.24  The change, which was probably made early in John’s reign, seems to have caused some confusion, for Robert not only performed the new service (in 1219 specifically defined as a serjeanty),25 but he was also charged with paying scutage on his former one, and at least once did so.26

The distinction between knight service and both socage and serjeanty tenure could be unclear, and indeed, in one case seems to have been deliberately blurred, when in 1204 Roger de Sumerville gave sixty marks and two palfreys (in effect £46. 13s. 4d.) to hold the Staffordshire manor of Alrewas by fee-farm for a total of £15 per annum, and also by the service of a quarter of a knight’s fee.27  Perhaps John imposed the extra service to enable him to make additional demands upon Roger and his descendants in future – the addition would have deprived them of the protection which Clause 37 was designed to provide for those who held lands of the crown by fee-farm but not by knight service.  The sort of complications which could result from a double tenure are shown by the action of dower which William Curnes and his wife Christian, formerly the wife of William FitzHervey, brought in 1206 against Thomas of Bircham, his wife and the latter’s sister for half of 180 acres of land in Bircham and other places in Norfolk.  The defendants argued that the claim to half the property should be barred because it was held as knight’s fee, for which a third constituted the appropriate proportion, but since the court was unable to say whether the land was knight’s fee or socage, the sheriff had to be instructed to find out.  In due course he reported that William FitzHervey had held his land by both tenures, with the result that William Curnes and his wife were granted the latter’s dower in different proportions, a half from the land held in socage, and a third from that held by knight service.28  The permeability of the line between knight service and serjeanty tenure, especially (though not only) when the latter involved military service, was demonstrated by the numerous occasions on which scutage was levied on holdings by serjeanty, particularly in the early years of John’s reign.  At least one man objected.  In 1204 Walter of Marden, the holder of two virgates in Herefordshire, for which he was required to pay one mark in scutage, gave 20s. for an inquest `whether he holds his land by serjeanty or by knight service’.  Investigations under the direction of the justiciar found that Walter was one of several men who held their land by the serjeanty of taking the king’s treasure twice each year to London, and he received quittance of scutage accordingly.29

Despite, or perhaps because of, such opportunities for confusion, Clause 37 was careful to distinguish between the various free tenures.  In what in modern editions has become its second section it also distinguished between serjeanties, to make it clear that some were of greater consequence than others, and that the restrictions placed on prerogative wardship were only to apply to the less important ones.  To derive later distinctions between `grand’ and `petty’ serjeanties from Clause 37 is anachronistic, for in 1215 (and long afterwards) it was the value of the property which mattered, rather than the eminence of the service, as later became the case.30  But it is significant that any distinction was made at all, as did not happen with fee-farm, socage and burgage.  Where those tenures were concerned, Clause 37 laid down that prerogative wardship was not to apply unless the man who held the relevant tenements also held lands owing knight service directly from the crown (like Roger de Sumerville after 1204).  The separation of `small’ serjeanties from the rest reflected the acceptance by the barons of the king’s right to prerogative wardship in this tenurial area, and thus their own reluctance to do more than prevent its inordinate exploitation.  By the time the legal treatise Bracton was composed in the late 1220s, a serjeanty was reckoned, `according to some’, to be large if the lands for which it was held were worth more than 100s.,31 a relatively low figure which must have exposed at least as many serjeanties to royal claims as it excluded from them, and one considerably less than many holdings by fee-farm, in particular.

Exploitation

The nature, and deficiencies, of the sources are such that clear evidence for abuse, or even exercise, of prerogative wardship is very hard to find.  But there are certainly cases where it may be suspected.  Inquests held into wards and widows in 1185 included one in Hertfordshire into the lands of Robert of Abinger.  He had held estates at Wallington and Clothall, near Baldock, probably as a sub-tenant of the count of Brittany, but he was also said to have held a single acre from the king at Mitcham, Surrey – `and because of that acre his entire holding was taken into the hand of the lord king together with his heir, who is a leper ...’.32  Robert’s acre in Mitcham cannot be identified with certainty, but it may well have been one of the twelve acres which William of Walton was described as holding there in 1219 in return for a farm of 12d. per annum.33  The age of Robert’s heir is not given, and it is possible that his land was taken into the king’s hand because of his sickness rather than his minority.  But since the disabilities of lepers were such as to give them a status in law closely resembling that of minors, the king’s interest was much the same whatever the details of the case, demonstrating how the alertness of the king’s agents to their master’s interests, their readiness to take action on the basis of even the smallest holding, made prerogative wardship something to be feared.  Abbot Samson of Bury St Edmunds was well aware of the danger.  In c. 1190, when disputing Adam of Cockfield’s right to inherit the abbey’s half-hundred of Cosford, he told Adam roundly that `If you, who claim a hereditary interest in this hundred, should marry a free woman with a holding of as much as one acre directly from the king, then after your death the king would take all your estate and the guardianship of your son, if he should be under age, and so the king’s bailiffs would enter St Edmund’s hundred, which would be injurious to the abbot’s rights ...’.34

The abbot’s response to Adam of Cockfield constitutes a reminder that Clause 37 was intended to protect the interests of lords, and that the exploitation of tenants through prerogative wardship was a secondary matter, although barons who were also the mesne tenants of other magnates would doubtless have been glad to be spared the king’s attentions when he contrived to exercise his rights in this way.  King John himself was clearly well aware of the advantages which prerogative wardship gave him, as he showed when he decided to forego them.  On 18 March 1208 he not only confirmed Earl William Marshal in the lordship of Leinster, but also granted him the wardship of his own fees, even when their lords were also tenants-in-chief of the crown, a circumstance which would usually have placed at his own disposal all the lands of any who died leaving minors as their heirs.35  Two days later he provided a clear illustration of the possible consequences of prerogative wardship for those who held lands by serjeanty, when in another charter for William Marshal he promised that the marriage of the earl’s tenant Michael de Columbariis to the daughter (probably named Avice) of Elias Croc, `who holds of us in serjeanty’, would not be to his detriment with regard to either the wardship or the marriage of any heir born to Michael and his wife.36  Michael himself paid 200 marks (£133. 6s. 8d.) for the marriage,37 a sum explicable by the fact that although in 1212 Elias was said to hold only one virgate in Andover by serjeanty (one involving service in the royal forest), evidence from that and later years shows that his estates in Hampshire and Wiltshire also included three fees held of the abbot of Hyde in Collingbourne, Winterbourne and Chute, together with fractions of fees at Barford St Martin and Zeals held of William Marshal.38  But for John’s charter, all would have been seized in the king’s name had Michael de Columbariis died leaving an under-age heir.  Such a child might well have been the loser as a result, while William Marshal would certainly have been.  

By the early thirteenth century once-unified estates had so regularly become fragmented that it is practically impossible to be sure that men who held lands by serjeanty or some other free tenure were not also tenants-in-chief, and therefore exposed to the consequences of prerogative wardship, by virtue of their having held what might have been only a minute fraction of a knight’s fee.  But Clause 37 stands as evidence that the king exploited his right on occasions when no such tenancy existed, and a case from 1206 provides an imperfect example of the possibilities it afforded.  In 1206 Richard le Fleming (a follower of John before 1199 who served as sheriff of Cornwall from 1200 to 1202) proffered 600 marks and six palfreys (in effect £420) for the wardship of the lands and heir of Richard de Grenville, and for the marriages of the heir (another Richard) and his mother.39  A marginal note records that the Grenville lands were situated in nine counties, but in only one of them, Oxfordshire, can Richard be said with confidence to have been a tenant-in-chief, and that was because he held two hides by the service of bringing the king his dinner when he hunted in Wychwood Forest.40  As lords of Bideford the Grenvilles were powerful figures in Devon, but they held their lands there, and seemingly also in Suffolk, from the honour of Gloucester,41 as they held other estates in the south west from barons of that region.  It must be possible that Richard de Grenville held some other small estate in chief which made all his lands liable to seizure at his death, but to outward appearances he was an example of a man whose wealth and importance derived from his having been a mesne tenant on a large scale, holding his estates of other lords.42  The example is imperfect because between 1199 and 1214 the honour of Gloucester was in the hands of King John, in the right of his first wife Isabella, and so all who held land of it were tenants-in-chief during those years.  But it can at least be suggested that the price which John was able to demand for the custody of the Grenville lands gives some idea of how valuable prerogative wardship could be to him, just as the nature of the serjeanty which apparently enabled him to take possession of them helps to explain why the barons resented its exercise through such means and sought to control it.

The inquests of 1212

In stoking that resentment, and inculcating a widespread fear of prerogative wardship among free landowners, the wide-ranging inquests of 1212 probably had a crucial impact.43  They were not entirely without precedent, notably in the investigations of serjeanties carried out in 1198, intended to ensure that serjeants, like knights, made an appropriate contribution to Richard I’s campaigns in Normandy.44  But although these led to the articles of the eyre including one `De sergentariis domini regis’, they were limited in their scope compared with the inquests of 1212.  The latter were conducted under a writ issued on 1 June, demanding from each sheriff information `concerning all knights’ fees and all kinds of tenements inside or outside boroughs which are held of us in chief in your bailiwick by knight service or by any kind of serjeanty, and who holds them, and by what service ...’.45  The inquests were never completed, and their overall results were both more and less than the writ demanded.  The latter, despite its stress on property inside, as well as outside, boroughs, did not specifically mention burgage holdings, and such information as was provided about urban tenures was usually supplied in a very generalised form – of Southampton, for instance, it was presented simply that the whole town was royal demesne, and everyone living in it had been enfeoffed by the king’s ancestors.46  Only for Wallingford (a royal lordship) were full details given, with a whole roll being devoted to `the inquest held into the tenements and lands of the borough of Wallingford and what services the kings of England are wont to have from it and now have nothing’.47  Probably much depended on local initiatives, on the understanding of their task by the commissioners conducting the inquests, and on the conditions prevailing in individual cities and towns.  But even if the inquests had been intended to obtain information concerning burgage tenements, the unconstrained disposal of their properties which the inhabitants of English boroughs were by now accustomed to enjoy probably made it impossible for officials to keep track of them, helping to explain why little was returned concerning them.

The inquests of 1212 were much more informative about other free tenures, however, in some cases more so than the king’s instructions required.  This is particularly apparent in the returns for Staffordshire, whose sheriff, Thomas of Erdington, was a trusted royal agent.  These were set out under four headings, dealing successively with those who held by knight service, then serjeants, thirdly the holders of the king’s demesnes, in effect fee-farm tenants, and finally sokemen.48  The king’s writ had made no more mention of fee-farm and socage tenants than it did of holders by burgage, but quite as much as the knights and serjeants they were men of local or even national standing – as well as members of a number of important midlands families, they included the abbot of Bordesley and even the king’s half-brother, the earl of Salisbury, who held three demesne manors which had previously contributed to the county farm.  Burgage tenants apart, the Staffordshire inquests covered every kind of free landholder, and thus a large proportion of the free men to whom Magna Carta was granted three years later.  The inquests in other shires were less wide-ranging, but still yielded much information about lands held by knight service and by serjeanty, which were investigated, and recorded, in equal detail. 

In the present context the details of serjeanties were of particular significance.  The importance of serjeanties to the drafters of Magna Carta is shown by their having had what was originally a separate clause devoted to them, a fact which in itself makes it likely that John often manipulated them to his own advantage.  From the king’s point of view, indeed, the more he knew about serjeanties and their holders, the greater was likely to be his ability to exploit them, not only through direct control and oversight of their holders and the services they gave, but also through the opportunities which increased knowledge was likely to bring him for making use of his prerogative wardship at the expense of other lords who had serjeanty-holders among their tenants.  It should be observed, however, that although the 1212 inquests were also intended to investigate alienations of lands, whether held by knight service or serjeanty, `whereby less may be held of us in chief’, their findings were relatively unimportant in the present context.  As long as a serjeanty existed, the property attached to it could become only a fraction of what it had once been, but the king could still claim the wardship of all the lands of its holder at his death, no matter whose lordships he had held them from.

The range and number of serjeanties was wide.  Many were military, and so close to knight service, while forestry serjeanties were numerous, especially in counties like Hampshire and Wiltshire, where the forests themselves proliferated.  Some were ceremonial, while many can only be described as miscellaneous, whether it was Richard Robbe holding Steart in Somerset in return for a crane (the bird was later recorded as being delivered every year at Michaelmas),49 or Ralph of East Carlton and William FitzJohn, who together held thirty acres of land in East Carlton, Norfolk, `by the service of carrying pasties of the first herring to the lord king wherever he shall be found in England’,50 or Reginald of Colwick, Nottinghamshire, holding one carucate of land in Colwick itself by the service of providing the king with twelve arrows once a year when he came to Nottingham, and a third of a carucate in Willoughby on the Wolds for which he must supply a riding horse and a sack when the king invaded Wales,51 or Richard of Eldersfield, Worcestershire, who in return for a hide of land there was required to serve in red boots on Christmas Day.52  All these tenures, and perhaps above all that of Seled the smith of Derby, recorded as holding a messuage in that town `of the gift of the lord King John while he was count, and for it he renders to the king two knives yearly’,53 could have been in the minds of the drafters of Clause 37, and with good reason, for however trifling the services, all who performed them held the lands which went with them as tenants-in-chief of the crown, which in turn meant that any other lands they held, along with the rights of their immediate lords in them, were exposed to the demands implicit in the king’s prerogative wardship. 

Royal persistence, baronial resentment

It is impossible to say for certain whether the inquests of 1212 did in fact lead to an intensification of John’s claims to the wardships of tenants by serjeanty and other free landowners.  The same difficulties as before apply, compounded by the disappearance of the 1213 pipe roll.  But it can at least be suggested that John continued to exploit his right to prerogative wardship where he could.  In July 1213 Emma Luvel proffered sixty marks and a palfrey to have the custody of the lands of her two deceased husbands, William and Angerus, and the wardship of her son.54  A marginal note indicates that the lands in question lay in Berkshire and Northamptonshire, but although Emma was subsequently recorded as holding property worth 50s. from the king at Benham Lovell in the former county,55 there is no evidence that she was a tenant-in-chief in the latter shire, where any lands she held must therefore have come to be at the king’s disposal because both her husbands had been royal huntsmen, performing their duties at Freemantle in the north of Hampshire.  The inheritance of Andrew Moberd in Hampshire and Wiltshire may have been treated similarly.  On 28 July 1213 his son Walter proffered thirty marks and a palfrey for the lands held by his father, consisting of estates at Langford in Wiltshire and at Ropley and Avon in Hampshire.56  All, as recorded, were held by serjeanty (it is unclear if there were two serjeanties or one, but the latter seems likeliest – it was a military one, involving the provision of a serjeant with a hauberk for forty days in England).57  Andrew was a man of local standing, who served as a knight of the grand assize in both of the counties in which he held lands58 and was employed to oversee works on Clarendon Palace,59 and was wealthy enough to be charged with twenty marks for scutage in 1210 and to pay it within a year.60  It seems unlikely that the lands attached to his serjeanty were all that he held, or that his son paid to inherit (Walter had cleared his debt by Michaelmas 1214), and therefore more probable that, as with Emma Luvel, other properties, not held in chief, had also fallen into the hands of the king, whose prerogative wardship was thus exercised at the expense of the lords from whom Andrew and Emma held their other estates.

Such cases help to explain why prerogative wardship aroused sufficient resentment to bring it within the purview of Magna Carta.  The evidence is too meagre and imprecise for it to be possible to quantify the king’s fiscal gains from it, though the case of Richard de Grenville suggests that they could have been considerable.  However, financial profit was probably only part of its importance.  The inquests of 1212, and the precise information they provided, no doubt raised the prospect of more and heavier demands arising from the exercise of prerogative wardship.  But the barons who resisted it in 1215 must also have been aware of, and resistant to, the opportunities which it gave the king for an invasive use of patronage, whereby he could weaken the authority of lords he distrusted by inserting his own men into crevices which the wardships of under-tenants could open up within baronial power-structures – lands which magnates had hitherto treated as held of themselves, and at their own disposal, might suddenly come to be held, for anything up to twenty-one years, by men nominated by King John. 

Both financial and political considerations help to account both for John’s evident determination to preserve his right to prerogative wardship and for the hostility of the barons towards it.  Even more than in Clause 37 that hostility comes out in Clause 53, which was agreed upon at Runnymede in a late stage in the negotiations, and suggests a determination on the part of at least some of the barons to re-open the whole issue, and, indeed, to do so on much broader terms than those of Clause 37. Because there was no corresponding clause among the Articles of the Barons, and nothing else in Magna Carta besides Clause 37 dealt with this issue, it is impossible to be sure exactly what this late addition, which was referred to only in passing, was intended to achieve, and how it would have stood in relation to Clause 37.  But it can at least be said that it contained no refinement of detail concerning feefarms, socages, burgages and the smallness of sergeanties. Rather, since its terms of reference were `wardships of lands which are part of another’s fee, wardships which up till now we have had by reason of a fee which someone held of us by knight service ...’, its target seems to have been the whole practice of prerogative wardship, and the way it could affect relations between lords and men in the upper echelons of society.  Clause 37 accepted the king’s right to prerogative wardship, but the relevant sentences in Clause 53 would have made it almost meaningless.  This was too much for the king, and perhaps also for some of the more traditionally-minded barons, and John was able to have the implementation of the whole of Clause 53 delayed on the strength of his promise to go on crusade.  Taken on 4 March 1215, in accordance with usual practice this gave him the crusader’s privilege of three years’ secure possession of whatever he held when he took his vow.  It is a sign of the issue’s importance, and of the feelings it raised, however, that Clause 37 was allowed no such indulgence.