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

seems to mean that a feoffor may, if he chooses, stipulate for the payment of scutage, even though the tenement owes none to the king. In such case the scutage may seem to us but a rent capriciously assessed, but apparently Bracton would call the tenure military, and it would [p.245] serve to give the lord the profitable rights of wardship and marriage.¹⁰⁸ The extraordinary licence which men enjoyed of creating new tenures gave birth to some wonderful complications. If B holds a knight’s fee of A, then A can put X between himself and B, so that B will hold of X and X of A; but further, the service by which X will hold of A need not be the service by which B has hitherto been holding of A and will now hold of X. In Richard’s reign Henry de la Pomerai places William Briwere between himself and a number of tenants of his who altogether owe the service of 5⁵⁄24 knights or thereabouts; but William is to hold of Henry by the service of one knight.¹⁰⁹ To “work out the equities” arising between these various persons would be for us a difficult task: still no good would come of our representing our subject-matter as simpler than really it is. Lastly, as already hinted, we must not suppose that the barons or even the prelates of the Norman reigns were always thinking merely of the king’s rights when they surrounded themselves with enfeoffed knights. They also had their enemies, and among those enemies might be the king. Still the only military service demanded by anything that we dare call English law was service in the king’s host. It would further seem, that Henry II., not without some success, endeavoured to deduce from this principle the conclusion that if a tenant in chief enfeoffed more knights than he owed to the king, he thereby increased the amount of the service that the king could demand from him. Such a tenant in chief had, we may say, been making evidence against himself: this was the opinion of his royal lord.¹¹⁰

Scutage.The practice of taking scutages must have introduced into the system a new element of precision and have occasioned a downward spread of the tenure that was called military. The extent of the obligation could now be expressed in terms of pounds, shillings and pence; and tenants who were not really expected to fight might be bound to pay scutage. On the other hand, the history of scutage is full of the most perplexing difficulties. Before approaching these we will once more call to mind the fact that scutage is an impost of an occasional kind, that there never were more than forty scutages or thereabouts.

      [p.246]Nature of scutage. We are wont to think of scutage as of a tax introduced by Henry II. in the year 1159, a tax imposed in the first instance on the military tenants in chief by way of commutation for personal service, a tax which they in their turn might collect from their subtenants. But it seems extremely probable that at a much earlier date payments in lieu of military service were making their appearance, at all events in what we may call the outer circles of the feudal system.¹¹¹ In no other way can we explain the existence, within a very few years after 1159, of small aliquot parts of knights’ fees. When it is said that a man holds the twentieth part of a fee, this cannot mean that he is bound to serve for two days in the army; it must mean that he and others are bound to find a warrior who will serve for forty days, and that some or all of them will really discharge their duty by money payments. We read too in very ancient documents of payments for the provision of knights¹¹² and of an auxilium exercitus, the aid for a military expedition.¹¹³ In Normandy the equivalent for our scutage is generally known as the auxilium exercitus.¹¹⁴ In England the two terms seem in course of time to have acquired different meanings; the lord exacted a scutage from his military, his nominally military tenants, while he took an “army aid” from such of his tenants as were not military even in name.¹¹⁵ But what we may call the natural development of a system of commutation and subscription between tenants in the outer circles of feudalism, was at once hastened and perplexed by a movement having its origin in the centre of the system, which thence spread outwards. The king began to take scutages. At this point we must face some difficult questions.

[p.247]Scutage between the king and the tenant in chief. In what, if any, sense is it true that the military service of the tenants in chief was commuted into scutage? The king’s ban goes forth summoning the host to a campaign. It says no word of scutage. Can the baron who owes twenty knights sit at home and say, “I will not go to the war; and if I do not go, no worse can befall me than that I shall have to pay scutage for my twenty fees, and this indeed will be no heavy burden, for I shall be entitled to take a scutage from the knights whom I have enfeoffed”—can the baron say this? Even if he can, we must notice that his self-interested calculations involve one unknown quantity. It may be that on some occasions the king really did give the baron an option between leading his knights to battle and paying some fixed sum. But such was not the ordinary course, at all events in the thirteenth century. The rate at which the scutage was to be levied was not determined until after the defaulters had committed their defaults and the campaign was over; the baron therefore who stayed at home did not know whether he would have to pay twenty marks, or twenty pounds, or forty pounds. But as a matter of fact, we find that in Henry III.’s day and Edward I.’s the tenant in chief who does not obey the summons must pay far more than the scutage; he must pay a heavy fine. No option has been given him; he has been disobedient; in strictness of law he has probably forfeited his land; he must make the best terms that he can with the king. Thus in respect of the campaign of 1230, a scutage of three marks (£2) was imposed upon the knight’s fee; but the Abbot of Evesham had to pay for his 4½ fees, not £9, but £20; the Abbot of Pershore for his 2 fees, not £4, but £10; the Abbot of Westminster for his 15 fees, not 45 marks, but 100 marks.¹¹⁶ In Edward I.’s day the fine for default is an utterly different thing from the scutage; in 1304 he announces that he will take but moderate fines from ecclesiastics and women, if they prefer to pay money rather than send [p.248] warriors.¹¹⁷ We hear of such fines as £20 on the fee when the scutage is but £2 on the fee.¹¹⁸ Furthermore it seems evident that if an option had been given between personal service and scutage, every one would have preferred the latter and the king would have been a sad loser. Perhaps it is not absolutely impossible that Henry II. when he took two marks by way of scutage from each fee, took a sum which would pay a knight for forty days; in other words, that he could hire knights for eightpence a day.¹¹⁹ But while the rate of scutage never exceeded £2 on the fee, the price of knights seems to have risen very rapidly as the standard of military equipment was raised and the value of money fell. In 1198 the Abbot of St. Edmunds hired knights for Normandy at the rate of three shillings a day.¹²⁰ In 1257 the Abbot of St. Albans put into the field an equivalent for his due contingent of six knights, by hiring two knights and eight esquires, and this cost him hard upon a hundred marks, while, as between his various tenants, the rule seems to have been that a knight, who was bound to serve, required two shillings a day for his expenses.¹²¹ At about the same date the knights of Ramsey received four shillings a day from their fellow tenants.¹²² We may be sure that the king did not take from the defaulting baron less than the market value of his military service.

The tenant in chief’s service cannot be discharged by scutage.Thus, so soon as our records become abundant, it seems plain that the tenant in chief has no option between providing his proper contingent of armed men and paying a scutage. The only choice that is left to him is that between obeying the king’s call and bearing whatever fine the barons of the exchequer may inflict upon him for his disobedience. Therefore it seems untrue to say that as between him and the king there is any “commutation of military service,” and indeed for a moment we may fail to see that the king has any interest in a scutage. If he holds himself strictly bound by principles that are purely feudal, the scutage should be nothing to him. From his immediate tenant he will get either military service or a heavy fine, and we may think that the rate of scutage will only determine the amount that can be extracted from the undertenants by lords who have done their service or paid their fines. But this is [p.249] not so.

      The scutage of undertenants.We must speak with great diffidence about this matter, for it has never yet been thoroughly examined, and we are by no means sure that all scutages