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

half of the thirteenth century the tenants in chief succeeded in effecting a very large reduction in the number of fees for which they answered to the king.¹³⁷ When, for example, Edward I. called out the feudal host in 1277, his ecclesiastical barons, who, according to the reckoning of the twelfth century, were holding about 784 fees, would account, and were suffered to account, for but little more than 100, while some 13 knights and 35 serjeants—two serjeants being an equivalent for one knight— were all the warriors that the king could obtain from the lands held by the churches. The Archbishop of York had reduced his debt from twenty knights to five, the Bishop of Ely from forty to six, the Abbot of Peterborough from sixty to five. The lay barons seem to have done much the same. Humphry de Bohun offers three knights as due from his earldom of Essex; Gilbert of Clare, Earl of Gloucester and Hertford, offers ten knights, with a promise that he will send [p.255] more if it be found that more are due. While, however, the lay barons will generally send as many men as they professedly owe, the prelates do not even produce the very small contingents which they acknowledge to be due. Now these magnates were not cheating the king, nor endeavouring to cheat him. It was well known in the exchequer, notorious throughout Cambridgeshire,¹³⁸ that the Bishop of Ely, who would confess to but six fees, had forty at the least. The king was not deceived. The bishop, having sent no knights at all, had to pay a fine of 240 marks, that is, 40 marks for each of the six fees. Some of the prelates, we are told, had to pay as much as 50 marks for every fee,¹³⁹ and yet the scutage for this war was but two pounds, that is, three marks, on the fee. The reduction in the nominal amount of fees for which the baron is compelled to answer is accompanied by an at least proportional increase of the amount that he pays in respect of every fee.

Meaning of the change.This change seems to tell us three things. In the first place, it was impossible for the prelate to get military service out of his military tenants. The practice of subinfeudation, fostered by the king’s court, had ruined the old system. His fees were now split up into small fractions, and they were in the hands of yeomen and small squires. Secondly, he was willing to pay a large sum rather than hire knights. The knight with his elaborate panoply had become a costly article. In the third place, the king by this time wanted money more than he wanted knights; if he had money, he could get soldiers of all sorts and kinds as pleased him best. And so he seems to have winked at the introduction of a new terminology, for really there was little else that was new. Provided that the Bishop of Ely paid him £160 for his Welsh campaign, he did not care whether this was called a fine of six marks for each of forty fees, or a fine of forty marks for each of six fees; while the bishop, who would hardly find six tenants willing to fight, prefers the new set of phrases. But then, our already confused system is further confounded, for the bishop, [p.256] who has but six fees for the king’s service when the call is for warriors or a fine, will assuredly assert that he has, as of old, forty fees when the time comes for him to take a scutage from his tenants, and in this way he may, at the rate of three marks per fee, recover, if he is lucky and persistent, about half the sum that he has had to pay to the king. But in truth, the whole system is becoming obsolete. If tenure by knight’s service had been abolished in 1300, the kings of the subsequent ages would have been deprived of the large revenue that they drew from wardships, marriages and so forth; really they would have lost little else.¹⁴⁰

Military service combined with other services.We have next to observe that a lord when enfeoffing a tenant was free to impose other services in addition to that military service which was incumbent on the land. Suppose that B holds a knight’s fee of A; B may enfeoff C of the fee, stipulating that C shall do the military service and also pay him a rent. Perhaps it was usual that a tenant who held a whole knight’s fee should have no serious service to perform in addition to the military service, though, in such a case as we have put, B would often stipulate for some honorary rent, a pair of spurs, a falcon, or the like. But when we get among the holders of small plots, we constantly find that they must pay scutage while they also owe substantial rents.¹⁴¹ A few entries on the Oxfordshire Hundred Roll will illustrate this. At Rycote, Adam Stanford holds the whole vill of the Earl of Oxford for half a knight’s fee; he has a number of freeholders holding small plots; they pay substantial rents and “owe scutage”; one has a virgate, pays 7 s. 6 d. a year and owes scutage; another holds three acres [p.257] for the rent of a penny and owes scutage.¹⁴² Often it is said of the small freeholders that beside their rent they owe royal or forinsec service (debent regale, debent forinsecum)¹⁴³ and, at least in general, this seems to mean that they pay scutage and are nominally tenants by knight’s service; for Bracton’s rule is clear, namely, that if the tenant owes but one hap’orth of scutage (licet ad unum obolum), his tenure is military, and this rule is fully borne out by pleadings and decisions.¹⁴⁴ This point is important:—the division between tenants in socage and tenants by knight’s service does not correspond, save in the roughest manner, to any political, social or economic division. The small yeoman often holds his little tenement by a tenure which is nominally and legally the same tenure as that by which the knight holds his manor.¹⁴⁵

Castle-guard.With the duty of attending the king in his wars was often coupled the duty of helping to garrison his castles; more rarely the latter duty appears without the former. The knights of the Abbey of Abingdon were bound to guard the king’s castle of Windsor,¹⁴⁶ the knights of the Abbey of Peterborough his castle of Rockingham,¹⁴⁷ the knights of the Abbey of St. Edmund his castle of Norwich. In Henry I.’s day the Bishop of Ely purchased for his knights the privilege of doing ward within the isle instead of at Norwich.¹⁴⁸ Such service was well known in Normandy¹⁴⁹ and France,¹⁵⁰ and is mentioned in Domesday Book.¹⁵¹ The forty or fifty knights of St. Edmunds [p.258] were divided into four or five troops (constabiliae), each of which had to guard Norwich castle for three months in the year.¹⁵² Often a tenement owed “ward” to a far-off castle; thus in Cambridgeshire were lands held of the Count of Aumâle which owed ward to his castle of Craven,¹⁵³ and lands held of the Count of Britanny which owed ward to his castle of Richmond.¹⁵⁴ We speak as though these castles belonged to their tenants in chief; but the kings were wont to regard all castles as in a sense their own, and the duty of castle-guard, like the duty of service in the host, though due to the lord, was to be done for the king. Before the end of the thirteenth century, however, payments in money had usually taken the place of garrison duty.¹⁵⁵

Thegnage and drengage.While the military system of feudalism is thus falling into decay there still may be found in the north of England scattered traces of an older military system. The Norman milites are already refusing to do the service to which their tenure binds them, but there are still in the ancient kingdom of Northumbria thegns holding in thegnage, drengs holding in drengage, thegns who are nominally bound to do the king’s “útware.” Were these tenures military or were they not? That was a puzzle for the lawyers. They had some features akin to tenure by knight’s service, for thegns and drengs had been summoned to fight John’s battles in Normandy; in other respects they were not unlike the serjeanties; they were sometimes burdened with services which elsewhere were considered as marks of villeinage; finally, as it would seem, they were brought under the heading of free socage. In truth they were older than the lawyers’ classification, older than the Norman Conquest.¹⁵⁶

Tenure by barony.Above we have made mention of tenure by barony and passed it by with few words; and few seem needed. True, we may find it said of a man, not only that he holds a barony (tenet baroniam), but also that he holds by barony (tenet per baroniam), and this may look as [p.259] though tenure by barony should be accounted as one of the modes of tenure.¹⁵⁷ But so far as the land law is concerned there seems no difference between tenure by barony and tenure by knight’s service, save in one point, namely, the amount of the relief, about which we shall speak below. So far