Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per burgagium, et de alio terram teneat per servitium militare, nos non habebimus custodiam haeredis nec terrae suae quae est de feodo alterius, occasione illius feodifirmae, vel sokagii, vel burgagii; nec habebimus custodiam illius feodifirmae, vel sokagii, vel burgagii, nisi ipsa feodifirma debeat servitium militare. Nos non habebimus custodiam haeredis vel terrae alicujus, quam tenet de alio per servitium militare, occasione alicujus parvae sergenteriae quam tenet de nobis per servitium reddendi nobis cultellos, per sagittas, vel hujusmodi.
If anyone holds of us by fee-farm, socage or burgage, and holds of someone else by knight service, we will not have the wardship of his heir, or of the land which forms part of the other man’s fee, by reason of that fee-farm, socage or burgage; nor will we have the wardship of that fee-farm, socage or burgage, unless the fee-farm owes knight service. We will not have the wardship of the heir, or of anyone’s land which he holds of someone else by knight service, by reason of some petty serjeanty which he holds of us by the service of rendering us knives or arrows and the like.
Clause 37 was concerned with wardship, and with the ways in which a king could exploit his particular rights in it. All lords had the right to wardship – the custody of the heir, and property, of a free tenant, when that heir was a minor – and the king was no exception. But his rights were more extensive, since what was known as his `prerogative wardship’ gave him the right to the custody during a minority not only of the land which a tenant-in-chief had held land directly from the crown, but also of all the property which such a tenant had held of other lords. The fact that by the early thirteenth century there was a variety of tenures under which men could hold land freely, that they were often confused with one another, and that they could be unstable and liable to change, created opportunities for the exercise of prerogative wardship which Magna Carta aimed to restrict. (That the drafters of Magna Carta clearly found it difficult to produce a satisfactory text of this Clause is a pointer to the complexity of the basic issues.) Although a passage in Clause 53 suggests that there were opponents of King John hostile to prerogative wardship as such, Clause 37 did not attempt to abolish it, only to limit its application. Actual evidence for its exploitation is limited, and cases can be more often suspected than demonstrated. But the abbot of Bury St Edmunds was recorded as expressing anxiety about its impact under Richard I, and King John was sufficiently aware of its effects to be willing to remit them when he wanted to grant a favour. The widespread inquests into tenures which he ordered in 1212 may have been partly organised with an extension of prerogative wardship in mind, and have aroused fear for the same reason. The resentment provoked by John’s pursuit of this right is shown by Clause 37 itself, in which the king was compelled to renounce his claims to the wardship of lands which sub-tenants had held by knight service from other lords, if he had no other justification than that they had also held land from himself by non-military services.
John moves toward the March (The Itinerary of King John)
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