The History of English Law before the Time of Edward I. Frederic William Maitland

of the knight’s fee.This may be illustrated by the case of lands held in frankalmoin of a mesne lord, who himself holds by military service. In this case something like an exception was occasionally admitted. The canons of Wroxton held land in frankalmoin of John Montacute; the land was distrained for scutage; but on the petition of the canons, the sheriff was bidden to cease from distraining, “because the frankalmoin should not be distrained for scutages so long as John or his heirs have other lands in the county whence the scutages may be levied.” This is an exception, and a carefully guarded exception; if the tenant has given land in frankalmoin, the king will leave that land free from distress, provided that there be other land whence he can get his service.⁹³ Thus, let us say that a baron holds twenty knights’ fees, and has twenty knights each enfeoffed of a single fee; the boundaries between these fees in no way concern the king; the whole tract of land must answer for twenty knights. An early example of this may be given:—at some time before 1115 the Bishop of Hereford gave Little Hereford and Ullingswick to Walter of Gloucester for the service of two knights; Walter gave Ullingswick as a marriage portion for his daughter Maud free from all knight’s service, and thus, as between all persons claiming under him, the whole service of two knights was thrown on to Little Here ford. Thus really “a knight’s fee” is a relative term; what is two knights’ [p.241] fees as between C and B, is but part of two as between B and A.⁹⁴ In the time of Henry II. when the king was beginning to take stock of the amount of military service due to him, it was common for a tenant in chief to answer that he confessed the service of, for example, ten knights, that he had five knights enfeoffed each of a knight’s fee, and that the other five he provided from his demesne.⁹⁵ In one case, even at the end of the thirteenth century, a lord had not carved out his land into geographically distinct knights’ fees. Somehow or another the Abbot of Ramsey held his broad lands by the service of only four knights, and we may therefore say that he had four knights’ fees. But those fees were not separated areas; he had a number of tenants owing him military service; they chose the four who on any particular occasion should go to the war, and the others contributed to defray the expense by an assessment on the hide.⁹⁶ Thus the statement that a man holds a barony, or a parcel of knights’ fees, of the king, tells us nothing as to the relationship between him and his tenants, and does not even tell us that he has any tenants at all.

Duty of the military tenant in chief.The military tenant in chief of the crown was as a general rule bound to go to the war in person. If he held by the service of fifty knights, he was bound to appear in person with forty-nine. If he was too ill or too old to fight, he had to send not only a substitute but also an excuse.⁹⁷ Women might send substitutes and so might [p.242] ecclesiastics.⁹⁸ The monks of St. Edmunds thought it a dangerous precedent when in 1193 Abbot Samson in person led his knights to the siege of Windsor.⁹⁹ How the nature of this obligation was affected by the imposition of scutage is a question that we are not as yet prepared to discuss.

Position of the military subtenant.We must first examine the position of a tenant who holds by knight’s service of a mesne lord, and we will begin with a simple case. One A holds a mass of lands, it may be a barony or no, of the king in chief by the service of twenty knights, and B holds a particular portion of these lands of A by the service of one knight. Now in the first place, B’ s tenement, being part of A’ s tenement, owes to the king the service of twenty knights; it can be distrained by the king for the whole of that service. But, as between A and B, it owes only the service of one knight, and if the king distrains it for more, then A is bound to acquit B of this surplus service; this obligation can be enforced by an action of “mesne.”¹⁰⁰ On the other hand, B has undertaken to do for A the service of one knight. The nature of this obligation demands a careful statement:— B is bound to A to do for A a certain quantum of service in the king’s army. We say that B is bound to A; B is not bound to the king; the king it is true can distrain B’ s tenement; but between B and the king there is no personal obligation.¹⁰¹ The king cannot by reason of tenure call upon B to fight; if somehow or other A provides his twenty knights, it is not for the king to complain that B is not among them.¹⁰² None the less, the service that B is bound to do, is service in the king’s army. Here we come upon a principle of great importance. According to the law of the king’s court, no tenant is bound to fight in any army but the king’s army, or in any quarrel but the king’s quarrel. It might well have been otherwise; we may see that it nearly was otherwise; we may be fairly certain that in this respect the law was no adequate expression of the current morality; still we cannot say [p.243] that the law of England ever demanded private warfare.¹⁰³ Indubitably the military tenant often conceived himself bound to fight for his lord in his lord’s quarrel; but the law enforced no such obligation. True, the obligation which it sanctioned was one that bound the man to the lord, and in a certain sense bound him to fight for his lord. It was at the lord’s summons that the man came armed to the host, and if the lord had many knights, the man fought under the lord’s banner; still he was only bound to fight in the king’s army and the king’s quarrel; his service was due to his lord, still in a very real sense it was done for the king and only for the king:—in short, all military service is regale servitium. It is the more necessary to lay stress upon this principle, for it had not prevailed in Normandy. The Norman baron had knights who were bound to serve him, and the service due from them to him had to be distinguished from the service that he was bound to find for the duke. The Bishop of Coutances owed the duke the service of five knights, but eighteen knights were bound to serve the bishop. The honour of Montfort contained twenty-one knights’ fees and a half for the lord’s service; how many for the duke’s service the jurors could not say. The Bishop of Bayeux had a hundred and nineteen knights’ fees and a half; he was bound to send his ten best knights to serve the king of the French for forty days, and, for their equipment, he took twenty Rouen shillings from every fee; he was bound to find forty knights to serve the duke of Normandy for forty days, and for their equipment he took forty Rouen shillings from every fee; but all the hundred and nineteen knights were bound to serve the bishop with arms and horses.¹⁰⁴

Knight’s service due to a lord who owes none.As a matter of fact, however, we sometimes find, even in England, that knight’s service is due, at least that what is called knight’s service is due, to a lord who owes no knight’s service to the king or that more knight’s service is due to the lord than he owes to the king. One cause of this phenomenon may be that the lord is an ecclesiastic who has once held by military service, but has succeeded in getting his tenure changed to frankalmoin by the piety [p.244] of the king or the negligence of the king’s officers. The chronicler of the Abbey of Meaux tells us how the abbot proved that he held all his lands in Yorkshire by frankalmoin and owed no military service, and then how he insisted that lands were held of him by military tenure and sold the wardships and marriages of his tenants.¹⁰⁵ Since he was not bound to find fighting men, his tenants were not bound to fight; still their tenure was not changed; he was entitled to the profitable casualties incident to knight’s service. A similar result might be obtained by other means. The Abbot of St. Edmunds held his barony of the king by the service of forty knights; such at least was the abbot’s view of the matter; but he had military tenants who, according to his contention, owed him altogether the service of fifty-two knights: or, to put it another way, fifty-two knights’ fees were held of him, though as between him and the king his barony consisted of but forty.¹⁰⁶ The view taken by the knights was that the abbot was entitled to the service of forty knights and no more; the fifty-two fees had to provide but forty warriors or the money equivalent for forty. But in Richard I.’s day Abbot Samson, according to the admiring Jocelin, gained his point by suing each of his military tenants in the king’s court. Each of the fees that they held owed the full contribution to every scutage and aid, so that when a scutage of 20 shillings was imposed on the knight’s fee, the abbot made a clear profit of £12.¹⁰⁷ Bracton says distinctly that the tenant