Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
The Crown is here forbidden to exact relief where it had already enjoyed
wardship. It was hard on the youth, escaping from leading-strings, to be
met, when he “sued out his livery,” with the demand for a large relief
by the exchequer which had already appropriated all his available
revenue. The same event, namely, the ancestor’s death, was thus made the
excuse for two distinct feudal incidents.[378]
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Footnote 378:
Where there had already been a wardship, the relief was thus the price
paid by the heir in order to escape from the heavy hand of the king,
and was therefore known as “_ousterlemain_.” Mr. Taswell-Langmead
(_Engl. Const. Hist._, p. 51, n.) states the amount at half a year’s
profits. He cites no authorities for this, and is probably in error.
The _Dialogus_, II. x. E., p. 135, forbids relief to be taken, when
wardship had been exercised _per aliquot annos_.
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Such double extortion had long been forbidden to mesne lords; Magna
Carta was merely extending similar limitations to the king. The
grievance complained of had been intensified by an unfair expedient
which John sometimes adopted. In cases of disputed succession he
favoured the claims of a minor, enjoyed the wardship, and thereafter
repudiated his title altogether, or confirmed it only in return for an
exorbitant fine. The only safeguard was to provide that the king should
not enjoy wardship until he had allowed the heir to perform homage,
which constituted the binding tie of lord and vassal between them,
prevented the king from challenging the vassal’s right, and bound him to
“warrant” the title against all rival claimants. This expedient was
actually adopted in the revised Charter of 1216.[379]
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Footnote 379:
See chapter 3 of 1216, which stipulates that no lord shall have
wardship of an heir “_antequam homagium ejus ceperit_.” Cf. Coke,
_Second Institute_, p. 10.
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The alterations in that reissue were not altogether in the vassal’s
favour. Another addition made a reasonable stipulation in favour of the
lord, which incidentally illustrates the theory underlying wardship. The
essence of tenure in chivalry was the grant of land in return for
military services. Only a knight was capable of bearing arms; hence it
was that the lord held the lands in ward until the minor should reach
man’s estate. Ingenious attempts had apparently been made to defeat
these legitimate rights of feudal lords by making the infant heir a
“knight,” thus cutting away the basis on which wardship rested. The
reissue of 1216 prevented this, providing that the lands of a minor
should remain in wardship, although he was made a knight.[380]
Incidentally, the same Charter of Henry declared twenty-one years to be
the period at which a military tenant came of age, a point on which
John’s Charter had been silent.
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Footnote 380:
Public-domain text, read in full here on John Shaqi.
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