XXXVII
Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per burgagium, et de alio terram teneat per servitium militare, nos non habebimus custodiam haeredis nec terrae suae quae est de feodo alterius, occasione illius feodifirmae, vel sokagii, vel burgagii; nec habebimus custodiam illius feodifirmae, vel sokagii, vel burgagii, nisi ipsa feodifirma debeat servitium militare. Nos non habebimus custodiam haeredis vel terrae alicujus, quam tenet de alio per servitium militare, occasione alicujus parvae sergenteriae quam tenet de nobis per servitium reddendi nobis cultellos, per sagittas, vel hujusmodi.
37
If anyone holds of us by fee-farm, socage or burgage, and holds of someone else by knight service, we will not have the wardship of his heir, or of the land which forms part of the other man’s fee, by reason of that fee-farm, socage or burgage; nor will we have the wardship of that fee-farm, socage or burgage, unless the fee-farm owes knight service. We will not have the wardship of the heir, or of anyone’s land which he holds of someone else by knight service, by reason of some petty serjeanty which he holds of us by the service of rendering us knives or arrows and the like.
Referenced in
John moves toward the March (The Itinerary of King John)
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- Reflections
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.