354. Glanvill’s words (IX. c. 4) are unfortunately ambiguous. He distinguishes three cases: (a) the normal knight’s fee, from which 100s. was due as relief (whether this extends to fees of crown tenants does not appear); (b) socage lands, from which one year’s rent might be taken; and (c) “capitales baroniae,” which were left subject to reliefs at the king’s discretion. Now “barony” was a loose word: baronies, like barons, might be small or great (cf. infra, c. 14); all crown fiefs being “baronies” in one sense, but only certain larger “honours” being so reckoned in another. Glanvill leaves this vital point undetermined, but evidence from other sources makes it probable that even smaller crown holdings should for this purpose be classed under his capitales baroniae, and not with knights’ fees held from mesne lords. Two passages from the Dialogus de Scaccario (II. x. E. p. 135 and II. xxiv. p. 155) clearly support the distinction between all crown tenants (small as well as great) on the one hand, and tenants of mesne lords on the other: only the latter had their reliefs fixed, while the former were at the king’s discretion. (The second passage shows how the exchequer officials held the onus of proof to lie on the heir to a crown fief to show that he was worthy to succeed his father, and suggests rich gifts to the king as the best form of proof.) Madox (I. 315-6) cites from the Pipe Rolls large sums exacted by the crown. Usually the number of knights’ fees paid for is not specified, but in one case a relief of £300 was paid for six fees—that is, at the rate of £50 per fee, or exactly ten times what a mesne lord could have exacted. (See Pipe Roll, 24 Henry II., cited by Madox, ibid.) There is further evidence to the same effect: where a barony had escheated to the crown, reliefs of the former under-tenants would in future be payable directly to the crown; but it was the practice of Henry II. (confirmed by c. 43 of Magna Carta, q. v.) to charge, in such cases, only the lower rates exigible prior to the escheat. A similar rule applied to under-tenants of baronies in wardship; see the case of the knights of the see of Lincoln in the hands of a royal warden in Pipe Roll, 14 Henry II. (cited by Madox, ibid.). It would thus appear that all holders of crown fiefs (not merely barones majores) were in Glanvill’s day still liable to arbitrary extortions in name of reliefs. The editors of the Dialogus (p. 223) are also of this opinion. Pollock and Maitland (I. 289), however, maintain the opposite view—namely, that the limitation to 100s. per knight’s fee was binding on the crown as well as on mesne lords.
355. Madox, I. 316.
356. Madox, I. 317.
357. Ibid., I. 318.
358. Ibid., I. 321.
359. The first of the long series of charters and confirmations which contains it seems to be the Inspeximus of 10th October, 1297, which in all probability merely recognized officially a rule long demanded as simple justice by the barons and public opinion. (See Madox, I. 318, Pollock and Maitland, I. 289, and Bémont, Chartes, p. 47.)
360. See note by editors of Dialogus, p. 238. The Petition of the Barons in 1258 (Sel. Charters, 382) protested against this, and the practice was discontinued.
362. It is possible to argue that the custom as to socage was already too well settled to require any confirmation. Glanvill (IX. c. 4) stated the relief for socage at one year’s annual value. It is not absolutely clear, however, whether this restriction applied to the crown. Further, no custom, however well established, was sufficiently safe against John’s greed, to make confirmation unnecessary.
363. See Littleton, Tenures, II. viii., s. 154, and Madox, I. 321, who cites the case of a certain Henry, son of William le Moigne, who was fined in £18 for the relief of lands worth £18 a year held "by the serjeanty of the King’s Lardinary."
365. C. Pearson, Hist. of Engl., I. 375, note 2.
366. J. H. Round, Feudal England, 295.
367. E.g. Gloucester and Battle Abbeys: see Round, ibid., 299.
368. See Round, Feudal England, 294, and Pollock and Maitland, I. 235.
369. See Pollock and Maitland, I. 262, and authorities there cited. “An honour or barony is thus regarded as a mass of lands which from of old have been held by a single title.” An exact definition is, perhaps, impossible: the term was first applied in early days without any technical meaning; in later days each “honour” had separately established its position by prescriptive usage. See also Pike, House of Lords, pp. 88-9, on the difficulty of defining “an entire barony.”
370. This change was not complete in 1215, but Magna Carta, when it uses “barones” alone, seems to refer to “barones majores” only (see cc. 2, 21, 61). In c. 14, “barones majores” are contrasted with “barones minores.”
371. See Coke on Littleton, II. iv. s. 112, and ibid. Second Institute, p. 7. Founding on the later practice of the exchequer, which exacted one hundred marks of relief from a barony, and one hundred shillings from a knight’s fee, he assumed the false equation "1 barony = 13⅓ knight’s fees." If he had known of the earlier practice, which followed the rule of John’s Charter, he might have jumped to another equation, equally false, namely that "1 barony = 20 knight’s fees." There is, in reality, no fixed proportion between the two, either as to extent or value.
372. In the Inspeximus of Edward I., however, the word comitatus (earldom) displaces the baronia comitis of the text. See Statutes of Realm, I. 114.
373. See Pike, House of Lords, 57.
374. See Pike, House of Lords, 63. This term comitatus was a word of many meanings. Originally designating the “county” or “the county court,” it came to mean also the office of the earl who ruled the county, and later on it might indicate, according to context, either his titular connection with the shire, his estates, his share of the profits of justice, or his rank in the peerage.
375. This was specially affirmed in 1164 by article 11 of the Constitutions of Clarendon, which stipulated that each prelate should hold his lands sicut baroniam, merely a restatement of existing law.
376. Sicut per barones meos disposui. The writ is given in Heming’s Cartulary, I. 79-80, and reprinted by Round, Feudal England, 309.
377. See Appendix.
CHAPTER THREE.
Si autem heres alicujus talium fuerit infra etatem et fuerit in custodia, cum ad etatem pervenerit, habeat hereditatem suam sine relevio et sine fine.
If, however, the heir of any one of the aforesaid has been under age and in wardship, let him have his inheritance without relief and without fine when he comes of age.
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]
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]
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.
In one case, exceptionally, wardship and relief might both be exacted on account of the same death, though not by the same lord. Where the dead man had formerly held two estates, one of the Crown and one of a mesne lord, the Crown might claim the wardship of both, and then the disappointed mesne lord was allowed to exact relief as a solatium for his loss.[381]
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.
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.
380. Coke, ibid., p. 12, makes a subtle, and apparently unwarranted, distinction to depend on whether the minor was made a knight before or after his ancestor’s death. The proviso, he argues, does not apply to the former case, because the word used is “remaneat,” and lands cannot “remain” in wardship if they were not in it before. Such reasoning is puerile.
381. See Coke on Littleton, Book II. c. iv. s. 112; and cf. infra, cc. 37 and 43 for the “prerogative wardship” of the Crown.
CHAPTER FOUR.
Custos terre hujusmodi heredis qui infra etatem fuerit, non capiat de terra heredis nisi racionabiles exitus, et racionabiles consuetudines, et racionabilia servicia, et hoc sine destructione et vasto hominum vel rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti vel alicui alii qui de exitibus illius nobis respondere debeat, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committatur duobus legalibus et discretis hominibus de feodo illo, qui de exitibus respondeant nobis vel ei cui eos assignaverimus; et si dederimus vel vendiderimus alicui custodiam alicujus talis terre, et ille destructionem inde fecerit vel vastum, amittat ipsam custodiam, et tradatur duobus legalibus et discretis hominibus de feodo illo qui similiter nobis respondeant sicut predictum est.
The guardian of the land of an heir who is thus under age, shall take from the land of the heir nothing but reasonable produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods; and if we have committed the wardship of the lands of any such minor to the sheriff, or to any other who is responsible to us for its issues, and he has made destruction or waste of what he holds in wardship, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall be responsible to us for the issues, or to him to whom we shall assign them; and if we have given or sold the wardship of any such land to someone and he has therein made destruction or waste, he shall lose that wardship, and it shall be transferred to two lawful and discreet men of that fief, who shall be responsible to us in like manner as aforesaid.
This chapter and the next treat of wardship,[382] a much hated feudal incident, which undoubtedly afforded openings for grave abuses. It is a mistake, however, to regard its mere existence as an abuse: it seems to have been perfectly legal in England from the date of the Norman Conquest, although some writers[383] consider it an innovation devised by William Rufus and Flambard, without precedent in the Conqueror’s reign. The chief argument for this mistaken view is that Henry I., in promising redress of several admitted inventions of Rufus, promised also to reform wardship. This may show that wardship was abused, but does not prove it an innovation.
The Charter of Henry committed him undoubtedly to drastic remedies, which would have amounted to the virtual abolition of wardship altogether. Chapter 4 of that document removed from the lord’s custody both the land and the person of the heir, and gave them to the widow of the deceased tenant (or to one of the kinsmen, if such kinsman had, by ancient custom, rights prior to those of the widow).[384] This was only one of the many insincere promises which the “lion of justice” never kept, and probably never meant to keep. Wardship continued to be exacted from lay fiefs throughout the reigns of Henry I. and Stephen. Article 4 of the Assize of Northampton (1176) merely confirmed the existing practice when it allowed wardship to the lord of the fee.[385] The barons in 1215 made no attempt to alter this, or to revert to the drastic remedies of the Charter of Henry I., although the evils complained of had become worse under John’s misgovernment.
It must be remembered that “wardship” placed the property and person of the heir at the mercy of the Crown. Even if the popular belief as to the fate met by Prince Arthur at his uncle’s hands was unfounded, John was by no means the guardian to inspire confidence in the widowed mother of a young Crown tenant whose estates the king might covet for himself. Further, the king might confer the office, with the delicate issues involved, upon whomsoever he would. When such a trust was abused it was difficult to obtain redress. In 1133 a guardian, accused de puella quam dicitur violasse in custodia sua, paid a fine to the crown, if not as hush money, at least in order to obtain protection from being sued elsewhere than in the Curia Regis.[386] It is easy to understand how thoroughly this feudal incident must have been detested in England and Normandy, all the more so if, as Hallam contends, it was not recognized as a feudal due in other parts of Europe.[387]
Guardians were of two kinds. The king might entrust the lands to the sheriff of the county where they lay (or to one of his bailiffs), such sheriff drawing the revenues on the Crown’s behalf, and accounting in due season at the exchequer. Alternatively, the king might make an out-and-out grant of the office, together with all profit to be derived from it, to a private individual, either some royal favourite or the bidder of the highest price. Commentators of a later date[388] apply the word “committee” to the former type of guardian, reserving “grantee” for the latter. This distinction, which is mentioned by Glanvill,[389] obtains recognition in this passage of the Charter. Neither was likely to have the interests of the minor at heart. Both would extort the maximum of revenue, the one for the king, the other for himself. They had always strong inducements to exhaust the soil, stock, and timber, uprooting and cutting down whatever would fetch a price, and replacing nothing. The heir found too often a wilderness of impoverished lands and empty barns.
The remedies proposed by Magna Carta were too timid and half-hearted; yet something was effected. It was unnecessary to repeat the recognized rule that the minor must receive, out of the revenues of the land, maintenance and education suited to his station; but the Crown was restrained by chapter 3 from exacting relief where wardship had already been enjoyed; chapter 37 forbade John to exact wardship in certain cases where it was not legally due; while here in chapter 4 an attempt was made to protect the estate from waste.
The promised reforms included a definition of “waste”; punishment of the wasteful guardian; and protection against repetition of the abuse. Each of these calls for comment. (1) The definition of waste. The Charter uses the words “vastum hominum vel rerum” (a phrase which occurs also in Bracton).[390] It is easy to understand waste of goods; but what is "waste of men"? An answer may be found in the words of the so-called “unknown Charter of Liberties,”[391] which binds guardians to hand over the land to the heir “sine venditione nemorum et sine redemptione hominum.” Clearly, to enfranchise villeins was one method of “wasting men.” The young heir, when he came to the enjoyment of his estates, must not find his praedial serfs emancipated.[392] The words of the “unknown Charter” may be used to illustrate the text, even if it be a forgery, since a consensus of opinion holds it to be either contemporary or of slightly later date.[393]
(2) The punishment of wasteful guardians. The Charter provides a distinct but appropriate form of punishment for each of the two types of guardian. John promises to take “amends,” doubtless of the nature of a fine, from the “committee” who had no personal interest in the property; while the “grantee” is to forfeit the guardianship, thus losing a valuable asset for which he had probably paid a high price, sufficient punishment, perhaps, without the exaction of damages.
Subsequent statutes did not, however, take so lenient a view. While the Statute of Westminster[394] merely repeated the words of Magna Carta, the Statute of Gloucester[395] enacted that the grantee who had committed waste should not only lose the custody, but should, in addition, pay to the heir any balance between the value of the wardship thus forfeited and the total damage. More severe penalties were found necessary. Statute 36 Edward III. chapter 13 enacted that the king’s Escheators (officers who first became prominent towards the close of the reign of Henry III., and who acted in the normal case as guardians of Crown wards), when guilty of waste, should “yield to the heir treble damages.” If the boy was still a minor, his friends might bring a suit on his behalf; or after he was of full age he might bring it on his own account.[396]
(3) Provision against a recurrence of the waste. It was only fair that reasonable precautions should be taken to prevent the heir who had already suffered hurt, from being similarly abused a second time. John, accordingly, promised to supersede the keeper guilty of waste by appointing as guardians two of the most trustworthy of the free-holders on the heir’s estate. These men, from their local and personal ties to the young heir, might be expected to deal tenderly with his property. The “unknown Charter,” already referred to, proposed a more drastic remedy. Whenever the Crown’s right to a wardship opened, the lands were to be entrusted to four knights of the fief without waiting until damage had been done. This suggestion, if carried out, would have protected the king’s wards, without injury to the legitimate pecuniary interests of the Crown.
383. E.g. Mr. Taswell-Langmead, Engl. Const. History, p. 51, n.
384. “This, it would seem, was the old English rule”; see Ramsay, Foundations of England, II. 230.
385. It is a common error to suppose that this Assize restores wardship to the lord.
386. See Pipe Roll, 29 Henry II., cited Madox, I. 483.
388. E.g. Coke, Second Institute, p. 13.
389. VII. c. 10.
390. II. folio 87.
391. See Appendix.
392. Another way of “wasting” villeins was by tallaging them excessively. (For meaning of tallage cf. infra c. 12.) Thus Bracton’s Note Book reveals how one guardian destruxit villanos per tallagia (v. case 485); how another exiled or destroyed villeins to the value of 300 marks (case 574); how a third destroyed two rich villeins so that they became poor and beggars and exiles (case 632). Cf. also case 691. Daines Barrington, writing towards the middle of the eighteenth century, went too far when he inferred from this passage “that the villeins who held by servile tenure were considered as so many negroes on a sugar plantation” (Observations, p. 7.). For a definition of “villein” see infra c. 20.
394. 3 Edward I. c. 21.
395. 6 Edward I. c. 5.
396. Coke, Second Institute, p. 13, enunciates a doctrine at variance with this statute, holding that the heir who suffered damage could not, on coming of age, obtain such triple damages, or indeed any damages at all, if the king had previously taken amends himself. Coke further maintains that even after waste had been committed, the person of the heir was left in the power of the unjust guardian, explaining that when the Charter took away the office “this is understood of the land, and not of the body.” There seems, however, to be no authority for such statements.
CHAPTER FIVE.
Custos autem, quamdiu custodiam terre habuerit, sustentet domos, parcos, vivaria, stagna, molendina, et cetera ad terram illam pertinencia, de exitibus terre ejusdem; et reddat heredi, cum ad plenam etatem pervenerit, terram suam totam instauratam de carrucis et waynagiis, secundum quod tempus waynagii exiget et exitus terre racionabiliter poterunt sustinere.
The guardian, moreover, so long as he has the wardship of the land, shall keep up the houses, parks, places for live-stock,[397] fishponds, mills, and other things pertaining to the land, out of the issues of the same land; and he shall restore to the heir, when he has come to full age, all his land, stocked with ploughs and implements of husbandry, according as the season of husbandry shall require, and the issues of the land can reasonably bear.
These stipulations form the complement, on the positive side, of the purely negative provisions of chapter 4. It was not sufficient to prohibit acts of waste; the guardian must see that the estates were kept in good repair.
I. The Obligations of the Warden of a Lay-fief. It was the duty of every custodian to preserve the lands from neglect, together with all houses, “parks” (a term explained under chapter 47), fishponds, mills, and the other usual items of the equipment of a medieval manor. All outlays required for these purposes formed, in modern language, a first charge on the revenues of the estate, to be deducted before the balance was appropriated by the “grantee,” or paid to the exchequer by the “committee.” It was the guardian’s duty, moreover, to restore the whole to the heir in as good condition as the produce of the land might reasonably permit. Henry’s Charters directed that the guardian should redeliver the land stocked with ploughs “and with all other appointments in at least as good condition as he received it.”[398]
Magna Carta did not attempt to abolish wardship, which continued in full force for many centuries, with only a few of its worst abuses somewhat curtailed. The whole subject was regulated in 1549 by the Statute 32 Henry VIII. c. 46, which instituted the Court of Wards and Liveries, the expensive and dilatory procedure of which caused increasing discontent, until an order of both Houses of Parliament, dated 24th February, 1646, abolished it along with “all wardships, liveries, primer seisins, and ouster les mains.”[399] This ordinance was confirmed at the Restoration by the Statute 12 Charles II. c. 24.
II. Wardships over Vacant Sees. The church had its own grievances, although these took a different form. The Constitutions of Clarendon[400] had stipulated that each great prelate should hold his Crown lands sicut baroniam; and this view ultimately prevailed. It followed that all appropriate feudal burdens affected church fiefs equally with lay fiefs. The lands which formed the temporalities of a see were, however, in a peculiar position, being the property, not of an individual, but of an undying corporation (to use the definite language of a later age). When one bishop or abbot died, a successor of suitable age and worth had at once to be appointed. A minority was thus impossible, and therefore, so it might be argued, wardships could never arise. Rufus objected to what he thought an unfair exemption from a recognized feudal incident. Flambard devised an ingenious substitute for ordinary wardships by keeping sees long vacant, and meantime taking the lands under the guardianship of the Crown. Such practices formed the original ground of quarrel between Anselm and Rufus. Henry I., while renouncing by his Charter all pretensions to exact reliefs, retained his right of wardship, promising merely that vacant sees should neither be sold nor farmed out. Stephen went further, renouncing expressly all wardships over church lands; but Henry II. ignored this concession, and reverted to the practice of his grandfather. In his reign the wardship of the rich properties of vacant sees formed a valuable asset of the exchequer. During a vacancy the Crown drew not only the rents and issues of the soil, but also the various feudal payments which the under-tenants would otherwise have paid to the bishop. The Pipe Roll of 14 Henry II.[401] records sums of £30 and £20 paid into the exchequer by two tenants of the vacant see of Lincoln for six and four knight’s fees respectively.[402]
The practice of Henry of Anjou was followed by his sons. John was careful specially to reserve wardships over vacant sees even in that very accommodating charter, dated 21st November, 1214, which surrendered the right of canonical election to the national church. Stephen Langton had either failed to force John to relinquish wardships or else considered such a concession unnecessary now that the king renounced his right to veto church appointments, since wardships over church lands would become unprofitable if elections were never unduly delayed. Whatever the reason, the charter of 1214 did nothing to guard against the abuse of wardships over church lands, and John’s Great Charter was equally silent.[403] The omission was supplied in 1216, when it was directed that the provisions already made applicable to lay fiefs should extend also to vacant sees, with the added proviso that church wardships should never be sold. The charter of Henry III. thus reverted to the exact position defined by the charter of Henry I. The lands of vacant sees might be placed under a “committee,” but never given to a “grantee,” to use Coke’s terms.
These provisions were further supplemented by later acts. An Act of 14 Edward III. (stat. 4, cc. 4 and 5) gave to the dean and chapter of a vacant see a right to the pre-emption of the wardship at a fair price. If they failed to exercise this, the king’s right to appoint escheators or other keepers was confirmed, but under strict rules as to waste. This is a distinct confirmation of the king’s right to “commit” church lands, although the prohibitions against selling them or farming them out remained still in force.
397. Vivarium in strictness means a place for keeping live-stock, but probably included the animals also. By Coke, in the Statutes at large, and elsewhere, it is translated “warren”; but that word has its Latin form in warrena. Stubbs’ Glossary to Select Charters (p. 551) renders it as “a fish pond,” but stagnum has that meaning. The Statute Westminster II. (c. 47) speaks of stagnum molendinæ (a mill-pond). The Statute of Merton (c. 11) refers to poachers taken in parcis et vivariis; while Westminster I. (c. 1) forbids ne courge en autri parks, ne pesche en autri vivers, which suggests a change of connotation. Cf. ibid., c. 20.
398. Blackstone, Great Charter, lxxviii. considers this “an indulgence to guardians, by only directing them to deliver up the land ... in as good condition as they found it, not in as good as it would bear.” Sometimes, the heir after coming of age, could not recover his lands at all. The Statute of Marlborough (c. 16) gave such a ward a right to a mort d’ancestor (cf. infra, p. 325) against a mesne lord, but apparently not against the Crown. The Statute of Westminster I. (c. 48) narrates that heirs were often carried off bodily to prevent them raising actions against their guardians.
399. See S. R. Gardiner, Documents, p. 207.
400. Article 11: see Select Charters, 139.
401. Cited by the editors of the Dialogus, p. 223.
402. Cf. under c. 43 infra.
403. C. 46 (see infra) confirmed barons, who had founded abbeys, in their rights of wardship over them during vacancies.
CHAPTER SIX.
Heredes maritentur absque disparagacione, ita tamen quod, antequam contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius heredis.
Heirs shall be married without disparagement, yet so that before the marriage takes place the nearest in blood to that heir shall have notice.
The Crown’s right to regulate the marriages of wards had become an intolerable grievance. The origin of this feudal incident and its extension to male as well as female minors have been elsewhere explained.[404] John made a regular traffic in the sale of wards—young maids of fourteen and aged widows alike. No excuse would be accepted. The Pipe Roll of John’s first year[405] records how the chattels of a certain Alice Bertram were taken from her and sold because she refused “to come to marry herself” at the summons of the king. Only two expedients were open to those who objected to mate for life with the men to whom John sold them. They might take the veil, become dead in law, and forfeit their fiefs to escape the burdens inherent in them. Only the cloister could afford them shelter; nowhere in the outer world were they safe. The other way of escape was to outbid objectionable suitors. This was not always possible, for John was predisposed to favour the suit of his foreign gentlemen of fortune, thus befriending his creatures while adding to the slender number of personally loyal tenants-in-capite. John’s greed was insatiable, and brief entries in his Exchequer Rolls condense the story of many a tragedy. In the first year of his reign the widow of Ralph of Cornhill offered 200 marks, with three palfreys and two hawks, that she might not be espoused by Godfrey of Louvain, but remain free to marry whom she chose, and yet keep her lands. This was a case of desperate urgency, since Godfrey, for love of the lady or of her lands, had offered 400 marks for her, if she could show no reason to the contrary. It is satisfactory to learn that in this case the higher bribe was refused, and the lady escaped.[406]
Sometimes John varied his practice by selling, not the woman herself, but the right to sell her. In 1203 Bartholomew de Muleton bought for 400 marks the wardship of the lands and heir of a certain Lambert, along with the widow, to be married to whom he would, yet so that she should not be disparaged.[407]
Great stress was naturally placed on exemption from "disparagement"—that is, from forced marriage with one who was not an equal. When William of Scotland, by the treaty of 7th February, 1212, conferred on John the right to marry Prince Alexander to whom he would, the qualification was expressly stated, “but always without disparagement.”[408] Such a proviso was understood where not expressed, and formed apparently the only restriction admitted by the Crown upon this prerogative. It is not surprising, then, to find it specially confirmed in Magna Carta. The Articles of the Barons had, indeed, demanded a further protection—namely, that a royal ward should only be married with the consent of the next of kin. In our text this is softened down to the mere intimation of an intended marriage. The opportunity was thus afforded of protesting against an unsuitable match. Insufficient as the provision was, it was entirely omitted from the reissues of Henry’s reign. The sale of heiresses went on unchecked.
Magna Carta made no attempt to define disparagement, but the Statute of Merton[409] gave two examples,—marriage to a villein or to a burgess. This was not an exhaustive list. Littleton, commenting on this statute,[410] adds other illustrations:—“as if the heir that is in ward be married to one who hath but one foot, or but one hand, or who is deformed, decrepit, or having an horrible disease, or else great and continual infirmity, and, if he be an heir male, married to a woman past the age of child-bearing.” Plenty of room was left for forcing on a ward an objectionable husband or wife, who yet could not be proved to come within the law’s definition of “disparagement.” The barons argued in 1258 that an English heiress was disparaged if married to anyone not an Englishman by birth.[411]
Was it in the power of the far-seeing father of a prospective heiress by marrying her during his own life-time to render nugatory the Crown’s right to nominate a husband? Not entirely; for the Charter of Henry I. (even when renouncing the more oppressive practice of Rufus) reserved the king’s right to be consulted by the barons before they bestowed the hand of female relations in marriage. Magna Carta is silent on the point, and the presumption is that the existing law was to be maintained.
Bracton[412] explains that law:—No woman with an inheritance could marry without the chief lord’s consent, under pain of losing such inheritance; yet the lord when asked was bound to grant consent, if he failed to show good reasons to the contrary; he could not, however, be compelled to accept homage from an enemy or other unsuitable tenant. The Crown’s rights in such matters were apparently the same as those of any mesne lord.[413]