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

of knights’ fees. There is no amount of military service that is due from a tenant by barony as such; but his barony consists of knights’ fees; if it consists of twenty knights’ fees he is answerable for the service of twenty knights, if it consists of fifty knights’ fees, then he must produce fifty. And so, again, with the various incidents of tenure, aids, wardship, marriage, escheat, all save relief; there seem to be no special rules for tenure by barony or for the tenure of a barony; it is but tenure by knight’s service of a certain number of knights’ fees, unless indeed it be—and in some cases it is—tenure by grand serjeanty. The fact that a certain mass of lands is deemed a barony has some few legal consequences of a subordinate kind. Always or generally some castle or some manor is regarded as the head of the barony, and it would seem that for some fiscal and administrative purposes the whole barony was treated as lying in the county that contained its head. Then, again, a widow is not to be endowed with the caput baroniae, and the caput baroniae is not to be partitioned among co-heiresses.¹⁵⁸ Such rules as these may necessitate an inquiry whether a certain manor is the head of a barony or a single knight’s fee held by a separate title;¹⁵⁹ but they will not justify us in co-ordinating tenure by barony with the other tenures, such as knight’s service and serjeanty.

The baronage.Of course, however, “barony” cannot be treated as a mere matter of land tenure. The barons, together with the earls, have become an estate of the realm, and to make a man a member of this estate it is not sufficient that he should be a military tenant in chief of the crown. A line has been drawn which cuts the body of such tenants into two classes. The question by what means and in accordance with what principle that line was drawn has been much debated. We shall probably be near the truth if, in accordance with [p.260] recent writers, we regard the distinction as one that is gradually introduced by practice and has no precise theory behind it.¹⁶⁰ The heterogeneous mass of military tenants in chief could not hold together as an estate of the realm. The greater men dealt directly with the king, paid their dues directly to the exchequer, brought their retainers to the host under their own banners, were summoned to do suit in the king’s court by writs directed to them by name; the smaller men dealt with the sheriff, paid their dues to him, fought under his banner, were summoned through him and by general writs. Then two rules emphasized the distinction:—the knight’s fee paid a fixed relief of 100 shillings, the baron made the best bargain he could for his barony; the practice of summoning the greater people by name, the smaller by general writs was consecrated by the charter of 1215. The greater people are maiores barones, or simply barones, the lesser are for a while barones secundae dignitatis, and then lose the title altogether; the estates of the greater people are baronies, those of the smaller are not; but the line between great and small has been drawn in a rough empirical way and is not the outcome of any precise principle. The summons to court, the political status of the baron, we have not here to consider, while, as regards the land law, it is to all appearance the relief, and the relief only, that distinguishes the barony from an aggregate of knights’ fees, or makes it necessary for us to speak of tenure by barony.

Escheated honours.When, however, a certain territory had been recognized as a barony or an honour, this name stuck to it through all its fortunes. Honours and baronies were very apt to fall into the hands of the king by way of forfeiture or escheat owing to the tenant’s treason. [p.261] When this happened they still kept their names the honour of Wallingford might have escheated to the king, but it was still the honour of Wallingford and did not lose its identity in the general mass of royal rights. Nor was this a mere matter of words. In the first place, the escheated honour would probably come out of the king’s hands; the general expectation was that the king would not long keep it to himself, but would restore it to the heir of its old tenant, or use it for the endowment of some new family, or make it an appanage for a cadet of the royal house.¹⁶¹ But the continued existence of the honour had a more definite, and a legal meaning. Normally, as we shall see hereafter, the military tenant in chief of the king was subject to certain exceptional burdens from which the tenants of mesne lords were free. A tenant holds of the lord of the honour of Boulogne: that honour escheats to the king; the tenant will now hold immediately of the king; but is he to be subject to the peculiar burdens which are generally incident to tenancy in chief? No, that would be unfair, it would be changing the terms of his tenure. This was recognized by the practice of the exchequer under Henry II.,¹⁶² and the rule was confirmed by the Great Charter.¹⁶³ Thus it becomes necessary to distinguish between those tenants in chief who are conceived as having always held immediately of the king, and those who hold of the king merely because a mesne lordship has escheated: in other words, between those who hold of the king as of his crown (ut de corona) and those who hold of him as of an escheated honour (ut de escaeta, ut de honore, ut de baronia).¹⁶⁴ On the other hand, the relief for a barony having been fixed, two baronies do not become one merely because they are held by one person; the honour of Clare, the honour of Gloucester, the honour of St. Hilary and a moiety of Earl Giffard’s honour meet in the hands of Earl Gilbert; he has to pay for his three and a half honours a relief of £350.¹⁶⁵ [p.262] An honour or barony is thus regarded as a mass of lands which from of old have been held by a single title.¹⁶⁶

§ 4. Serjeanty

Difficulty of defining serjeanty.The idea of a serjeanty as conceived in the thirteenth century is not easily defined. Here as elsewhere we find several different classes of men grouped together under one heading so that the bond that connects them is slight; also we find it difficult to mark off serjeanty from knight’s service on the one hand and socage on the other. The tests suggested by Littleton are inapplicable to the documents of this age.¹⁶⁷ We cannot say that the duty of serjeanty must be performed by the tenant in his proper person, we cannot say that “petty serjeanty” has necessarily any connexion with war, or that one cannot hold by serjeanty of a mesne lord, or that petty serjeanty is “but socage in effect.”¹⁶⁸ Even the remark that “ serjeantia in Latin is the same as servitium ”¹⁶⁹ is not strictly true.

Serjeanty and service.Here indeed lies the difficulty:—while every tenure implies a service (servitium), it is not every tenure that is a serjeanty (seriantia, serianteria): every tenant owes service, but not every tenant is a servant or serjeant (serviens), still less of course is every tenant a servus. A single Latin stock has thrown out various branches; the whole of medieval society seems held together by the twigs of those branches. Here we have to deal with one special group of derivative words, not forgetting that it is connected with other groups.¹⁷⁰

Types of serjeanty owed by the king’s tenants in chief.We may begin by casting our eye over the various “serjeanties” known in the thirteenth century. First we see those forms of service which are the typical “grand serjeanties” of later days, “as to carry the banner of the king or his lance, or to lead his army, or to be his marshal, or to carry his sword before him at his coronation, or to be his sewer at his coronation, or his carver, or his butler, or to be one of the chamberlains of the receipt of his exchequer.”¹⁷¹ Some of [p.263] the highest offices of the realm have become hereditary; the great officers are conceived to hold their lands by the service or serjeanty of filling those offices. It is so with the offices of the king’s steward or seneschal, marshal, constable, chamberlain; and, though the real work of governing the realm has fallen to another set of ministers whose offices are not hereditary, to the king’s justiciar, chancellor and treasurer, still the marshal and constable have serious duties to perform.¹⁷² Many of the less exalted offices of the king’s household have become hereditary serjeanties; there are many men holding by serjeanties to be done in the kitchen, the larder and the pantry.¹⁷³ Even some of the offices which have to do with national business,