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

seems to have asserted his right to collect a scutage from the “tenant in demesne” who holds his land by knight’s service. There are two conflicting elements in the impost; it is in part the equivalent for a feudal, a tenurial service; it is in part a royal tax. The king will regard it now as the one, and now as the other, as suits him best. He refuses to be a mere lord of lords; he is also a king of subjects. The undertenant of a mesne lord, if he owes military service, owes a service that is to be done for the king; the king will, if this seems profitable, deal directly with him and excuse him from service on his paying money. And so in the thirteenth century the king, while he is exacting military service or fines from his tenants in chief, will also collect scutage from their military tenants. Theoretically he is not entitled to be paid for the same thing twice over. If a baron has either produced the requisite number of knights or compounded for his breach of contract, it is he and not the king who ought to receive scutage; in the one case he ought to get a scutage from any military tenants of his who have disobeyed his call to arms, in the other all his military tenants may have to pay, though he has not given them a chance of going to the war in person. That this ought to be so, seems to be admitted. Such a baron, having proved that he fulfilled his contract or paid his fine, will have a royal writ de scutagio habendo, whereby the sheriff will be ordered to cause him to have the scutage due from his tenants. Still, before he can get his scutage, he has to obtain something that the king is apt to treat as a favour. Meanwhile the sheriffs will be taking scutage for the king’s use from those who are in occupation of lands on which military service is incumbent, and leaving the various persons who are interested in those lands to settle the incidence of the burden as best they may. What comes into the king’s hands generally stays there. But further, in Henry III.’s time, the [p.250] barons, assuming to act on behalf of the whole community, will on occasion grant to the king a scutage in respect of some military expedition that has taken place, and the meaning of this, at least in some instances, seems to be that in response to the king’s demands, they make over to him the right to collect and to keep the scutages due from their undertenants, scutages which the feudal principle would have brought into their own coffers.¹²³ A national tax is imposed which the undertenants pay to the king. Much will remain obscure until the exchequer rolls have been carefully analyzed; but this at least seems clear, that the tenant in chief’s duty of providing an armed force is not commuted into a duty of paying scutage. Indeed the demand conceded by the Charter of 1215, namely, that no scutage be imposed without the common counsel of the realm, would be barely intelligible, if John had merely been giving his tenants in chief an option between furnishing the due tale of warriors and paying two marks for every fee.¹²⁴

The military subtenants.We must now turn to a simple case and ask a simple question. What was the duty of a man who held by knight’s service of a mesne lord? We will suppose him to hold a single knight’s fee. In the days before scutage his duty probably was to serve in person if summoned by his lord to the king’s host; only with a good excuse might he send a substitute;¹²⁵ but women and ecclesiastics would do their service by able-bodied representatives. Failure to perform this duty would be punished by a forfeiture of the tenement.¹²⁶ But the practice of taking scutages seems to have set up a change, and how far that change went it is hard to decide. The knights began to allege that they were not bound to serve, but were only bound to pay a scutage, and only to pay a scutage when their lords had obtained from the king permission to levy it.¹²⁷ It would further seem [p.251]that many of them made good this assertion by steady perseverance. The lords were often compelled to hire soldiers because their knights—their knights so called, for many a tenant by knight’s service was in habit but a yeoman—would not fight. It would even seem that the tenants as a body got the better in the struggle, and established the rule that if they did not choose to serve, no worse could happen to them, than to be compelled to pay a scutage at the rate fixed by royal decree, a sum much less than they would have spent had they hired substitutes to fill their places. In short, “tenure by knight’s service” of a mesne lord, becomes first in fact, and then in law, “tenure by escuage.”¹²⁸

Tenure by escuage.The stages of this process we cannot trace distinctly, but it was closely connected with the gradual decline and fall of the feudal courts. The lord who kept an efficient court of and for his military tenants might in early days enforce a forfeiture of the tenement for default of service; but the king’s court seems to have given him little or no assistance, and by degrees the remedies afforded by the royal tribunal became the standard of English law.¹²⁹ The process must have been hastened by the subdivision of knights’ fees. [p.252] We come across persons who hold no more than aliquot parts of fees; we find them even in what we may call the primary circle of feudalism, the circle of tenants in chief; they are common in the secondary circle. Sometimes a fee preserves a notional integrity though it has become divided into aliquot parts by subinfeudation or by partition among co-heiresses. The Abbot of St. Albans confessed to holding six scuta or knights’ fees. Each of these scuta was divided among several tenants holding of the abbot. When the king summoned his host, the various tenants of each scutum had to meet and provide a knight; sometimes they did this by hiring a knight, or two serjeants; sometimes they elected one of their number to serve and contributed towards his expenses.¹³⁰ But we soon come upon small fractional parts, the twentieth part or the fortieth part, of fees, which fees have no longer any existence as integral wholes. Such fractions could hardly have come into being but for the practice of taking a scutage in lieu of personal service, and the tenant’s obligation is often expressed in merely pecuniary terms; the charter of feoffment says, not that he is to hold the fortieth part of a knight’s fee, but that when scutage is levied at the rate of 40 shillings on the fee he is to pay a shilling.¹³¹ When the holder of a knight’s fee has cut up a great part of it into little tenements each owing him some small amount of scutage, the understanding probably is that he is to do, or to provide, the requisite military [p.253] service, and is then to take scutage from his tenants. All this must have tended to change the true nature of the obligation even of those tenants who held integral fees. If to hold the fortieth part of a fee merely meant that the tenant had to pay one shilling when a scutage of two pounds per fee was exacted, the tenant of a whole fee would easily come to the conclusion that a payment of forty shillings would discharge his obligation. Thus a permanent commutation into money of the personal service due from the subvassals seems to have taken place.¹³²

The lord’s right to scutage.What is more, the right of a mesne lord to take scutage seems hardly to have been regarded, at least in the thirteenth century, as a right given by the common law. A lord who had done his service, or made fine for not doing it, could with some trouble to himself obtain a writ de scutagio habendo, which ordered the sheriff to collect for him the scutage from his knights’ fees.¹³³ The king is said to grant to the lords their scutage; until the king has fixed the amount there is nothing that they can collect, and few if any of them attempted to collect it without obtaining the king’s writs. Indeed it would seem that, at least in Henry III.’s day, they had no right to collect it. If they did not obtain a grant of scutage from the king, then the king himself took the scutage from their tenants for his own [p.254] use.¹³⁴ As already said, there is in scutage an element of royal and national taxation which is incompatible with purely feudal principles.

      Service instead of scutage.Whether the tenant of a mesne lord could insist upon his right to do service in the army instead of paying scutage is a question that we are absolved from discussing, for perhaps it was never raised.¹³⁵ But as regards that duty of “castle-guard” which was a common incident of military tenure, the Great Charter lays down the rule that, if the tenant is willing to do the service in person, he cannot be compelled to pay money instead of doing it.¹³⁶ However, in the course of the thirteenth century this duty also seems to have been very generally commuted for money payments.

Reduction in the number of knights’ fees.One more exceedingly obscure