Chapter FORTY-THREE

Si quis tenuerit de aliqua eskaeta, sicut de honore Wallingfordie, Notingeham, Bolonie, Lancastrie vel de aliis eskaetis, que sunt in manu nostra, et sunt baronie, et obierit, heres ejus non det aliud relevium, nec faciat nobis aliud servicium quam faceret baroni si baronia illa esset in manu baronis; et nos eodem modo eam tenebimus quo baro eam tenuit.

If one who holds of some escheat (such as the honour of Wallingford,
of Nottingham, of Boulogne, of Lancaster, or of other escheats which
are in our hands and are baronies) shall die, his heir shall give no
other relief, and perform no other service to us than he would have
done to the baron, if that barony had been in the baron’s hand; and we
shall hold it in the same manner in which the baron held it.

This chapter reaffirms a distinction which had been recognized by Henry II. but ignored by John. Crown tenants were divided into two classes, according as their holdings had been originally granted by the Crown, or by some mesne lord whose barony had subsequently escheated. The latter class received preferential treatment from Henry II. for reasons to be immediately explained. The older law of escheats was too vague to prove an effective restraint on royal prerogative; the king, when a fief had escheated to the Crown, might reckon grants made by its former owner as void, refusing to acknowledge as binding upon him the titles of the sub-tenants, treating all sub-tenancies as wiped out by the mere fact that their lord’s fief had escheated to the Crown. A mesne lord, on the contrary, had no similar rights over the sub-tenants of his tenant who had suffered escheat.

The king usually mitigated in practice the full severity of this theory, confirming as of grace, or from motives of policy, or in return for money, claims which he refused to admit as matter of right. The tenants of escheated baronies were accepted as tenants _in capite_ of the Crown.[890] Not only so; but Henry II. did not allow them to be prejudicially affected by the change. The king would only take from them those services and feudal dues which they had been wont to render to the lord of the barony previous to its escheat. This just and lenient policy explains the origin of the division of royal tenants into two classes; tenants who held of Henry _ut de corona_, and tenants who held of him _ut de escaeta_, _ut de honore_, or _ut de baronia_ (phrases used synonymously).[891] In respect of such obligations as were heavier for ordinary Crown tenants than for tenants of mesne lords, holders of Crown fiefs _ut de escaeta_ were placed on the more favoured footing. Two illustrations may be given. While tenants _ut de corona_ under Henry II. had to pay large and arbitrary reliefs, those _ut de escaeta_ paid no more than 100s. per knight’s fee.[892] Nor was their obligation of “suit” (or attendance at the feudal court of the lord of the fief) to be increased. “The tenants of any honour or manor which had come by escheat to the Crown, were not suitors of the Curia Regis, but of the court of the honour or manor which had so escheated.”[893]

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Footnote 890:

Royal clemency in this respect could not be relied on by the
sub-tenants of _small_ escheated fiefs (not reckoned as honours or
baronies). This seems to be the opinion of Madox, _Baronia Anglica_,
199: “If a fee holden of the Crown _in capite_ escheated to the king
and was not an Honour or Barony, then such fee did not (that is to
say, I think it did not) vest in the Crown in the same plight in which
it was vested in the said tenant _in capite_.” Cf. also _Ibid._, 203.

Footnote 891:

See Madox, _Baronia Anglica_, 169–171; also Pollock and Maitland, I.
261, and authorities there cited.

Footnote 892:

See _Dialogus_, II. x. F, and _Ibid._, II. xxiv. The same rule applied
to sub-tenants of baronies in wardship (which was analogous to
temporary escheat). For example, when the see of Lincoln was vacant,
and therefore in ward to the Crown in 1168, the heirs of sub-tenants
paid to Henry only what they would have paid to the bishop; one giving
£30 for six fees, and another 30 marks for four. See _Pipe Roll_, 14
Henry II., and cf. _supra_, c. 2. In the matter of scutage, also, a
distinction was recognized: while tenants _ut de corona_ might be
compelled to serve in person without an option, crown tenants _ut de
honore_ (and a _fortiore_ sub-tenants also) might claim exemption on
tendering scutage. See case of Thomas of Inglethorpe in 12 Edward II.,
cited by Madox, _Baronia Anglica_, 169–171.

Footnote 893:

_Report on the Dignity of a Peer_, I. 60.

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John ignored this distinction, extending to tenants _ut de escaeta_ the more stringent rules applicable to tenants _ut de corona_. Magna Carta reaffirmed the distinction; and, not content with enunciating a general principle, made two particular applications of it: neither reliefs nor services of former tenants of baronies were to be augmented by reason of the fact that such baronies had escheated to the Crown.[894] Henry III.’s Charter of 1217 emphasized a third application of the general rule, declaring that he would not, by reason of an escheated barony, claim escheat or custody over the sub-tenants of that barony.[895] To understand this concession, it must be remembered that under Henry III., as under Henry II., sub-tenants of baronies were still liable to have their titles reduced through the reduction by escheat of the title of their lord; while sub-tenants of those who were themselves sub-tenants were not exposed to a similar mischance by the escheat of their immediate lord. Here also the position of Crown fiefs _ut de escaeta_ was to be assimilated to that of fiefs of mesne lords, and differentiated from that of Crown fiefs _ut de corona_. Sub-tenancies of escheated baronies were not to be wiped out, but to subsist, and the Crown (or its grantee) would take the escheat subject to all liabilities to, and rights of, sub-tenants.

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Footnote 894:

The need for this special reference to relief is not, at first sight,
obvious, since c. 2 of Magna Carta, by forbidding John to exact from
Crown tenants of either class the arbitrary sums taken by his father,
would seem to have already secured them from abuse. Probably, however,
c. 43 sought to prevent John from treating each of the former tenants
of the escheated barony as holder of a new barony of his own, and
therefore liable to a baron’s relief of £100 instead of the £25 he
ought to pay for his five fees, or £50 for his ten fees, or as the
case might be. The case of William Pantol (see _Pipe Roll_, 9 Henry
III., cited Madox, I. 318) seems to illustrate this. He was debited
with £100 of relief for his father’s land, but protested that he held
nothing of the Crown save five knights’ fees of the land which was of
Robert of Belesme. This plea was upheld, and £75 of the amount debited
was written off.

Footnote 895:

See c. 38 of 1217, and cf. the gloss given by Bracton (II. folio 87,
b.) which makes the meaning somewhat less obscure. The Charter of 1217
contained a saving Clause: “unless the holder of the escheated barony
held directly of us elsewhere.” Bracton added a second proviso,
namely, unless the said sub-tenants (now Crown tenants _ut de
escaeta_) had been enfeoffed by the king himself.

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The Crown seems not to have strictly observed this rule in practice. Article 12 of the Petition of the Barons in 1258[896] complained that Henry had granted charters conferring rights which were not his to give (_aliena jura_), but which he had claimed as escheats. An act of the first year of Edward III. narrated how the Crown had confiscated from purchasers tenements held of the Crown “as of honours,” thus treating them “as though they had been holden in chief of the king, as of the Crown.” Redress was promised by the statute:[897] but irregularities continued throughout the earlier Tudor reigns; and the first Parliament of Edward VI. passed an act to protect purchasers of lands appertaining to honours escheated to the Crown.[898]

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Footnote 896:

See _Sel. Charters_, 384.

Footnote 897:

See 1 Edward III., _stat._ 2, c. 13, _Statutes of Realm_, I. 256.

Footnote 898:

See 1 Edward VI. c. 4, _Statutes of Realm_, III. 9.

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