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

into possession of his temporalities.³²⁵

§ 8. Wardship and Marriage

      Wardship and marriage.Of great and increasing importance as men grow wealthier and begin to traffic in all manner of rights, are the rights of the lord to wardship (custodia, warda) and marriage (maritagium), and these have been among the chief causes of that classification of tenures which has come before us.

Bracton’s rules.In Bracton’s day they had reached their full stature. Their nature may be illustrated by a simple case. A tenant, who has but one tenement, and who holds it by knight’s service or military serjeanty³²⁶ of a mesne lord, dies leaving as heir a son who is under the age of twenty-one years. The lord will have the wardship of the land until the heir attains that age or dies without having attained it. He will take the rents and profits of the tenement for his own use, but ought thereout to provide for the youth’s maintenance and pay the dead [p.300] man’s debts;³²⁷ he must not commit waste; if he does so, he forfeits the wardship.³²⁸ But, besides the wardship of the land, he will be entitled to the wardship of the body of the heir; if the heir escapes from his custody, if another takes the heir from his custody, this is a wrong to him; by legal process he can compel the restoration of the heir’s body.³²⁹ But further, as guardian of the heir’s body he is entitled to the boy’s “marriage”; he can sell him in marriage;³³⁰ but the marriage must not be of a disparaging kind.³³¹ The law does not go so far as actively to constrain the ward to marry the mate provided by the guardian, nor does it declare null a marriage solemnized without the lord’s consent, though we have a hint that early in Henry III.’s reign such an union might not have all those legal results that a marriage usually has.³³² The maxim was admitted, strange as this may seem to us, that “marriages should be free,”³³³ and the church would neither have solemnized nor annulled a sacrament at the bidding of the lay tribunals. Still if the ward married without the lord’s consent, he wronged the lord, and so did any one who took part in procuring such a marriage.³³⁴ Without making any great change in the substantive law, the Statute of Merton (1236) defined the lord’s right by giving him new and efficient remedies:— the current of legislation had in this instance set in his favour.

Wardship of female heirs.If the heir was a woman, the lord’s right of wardship was much the same; but whether the wardship of a woman was to endure until she attained the age of twenty-one, or was to cease when she attained the age of fourteen, seems to have been a moot point. [p.301]³³⁵ Marriage with her lord’s consent put an end to the wardship of a woman. But according to old law, which Bracton regarded as still in force, no woman holding by military service could lawfully marry without her lord’s consent, and even a father holding by military service could not in his lifetime lawfully give his daughter in marriage without his lord’s consent.³³⁶ This right the king rigorously enforces over widows who hold of him in chief; to marry such a widow without the king’s licence is a grave offence.³³⁷ The lord’s rights, it will be understood, were proof against any claim on the part of even the nearest of kin; the heir fell into the lord’s hands even though his mother were alive. An apparent exception existed when the heir inherited from his mother while his father was living; but this was hardly an exception, for in this case the father, according to an opinion that was gradually prevailing, continued in possession of his late wife’s land, not as guardian of the heir, but in his own right.³³⁸

Priority among lords.If the dead man held by knight’s service or military serjeanty of several mesne lords, each of them got the wardship of the tenement that was holden of him. As to which of them should have the wardship of the heir’s body and with it the right of marriage, there was intricate law; the general rule traced back the titles under which the dead man held the various tenements and preferred that lord from whom, or from whose ancestors, the most ancient title was derived; that lord would usually have been, not merely the dead man’s lord, but his liege lord.³³⁹

What tenures give wardship.If the dead man held his one tenement in socage, burgage, or fee farm, or by a non-military serjeanty, his lord had no right to wardship or marriage: such was the general rule. As a matter of fact, however, we find socage tenure subjected to these burdens. This seems to have been the case throughout the Bishop of Winchester’s barony;³⁴⁰ the dean and chapter of Hereford claimed wardship of the heirs of all their freehold tenants;³⁴¹ the Archbishop of Canterbury, [p.302] the prior of Christ Church, the monks of Dover claimed the same right over the heirs of their gavelkinders.³⁴² This Bracton regarded as an abuse, though one that might be sanctioned by prescription.³⁴³ The ordinary rule was that the guardianship both of the land and of the child should go to the nearest of those relations who could have no hope of inheriting the land. Thus, in the common case, when the dead tenant in socage left a son and a widow, the widow would have the wardship of her son and of his land; she would be “guardian in socage,” for she never could be his heir. To state the main upshot of the rule—maternal kinsfolk have the wardship of a paternal inheritance, paternal kinsfolk of a maternal inheritance.³⁴⁴ When the heir attained his fifteenth year, guardianship in socage came to an end.³⁴⁵ If the dead man held one tenement by knight’s service, another by socage, the wardship of the one would belong to its lord, that of the other to a kinsman of the heir; as to the wardship of the heir’s body, this and his marriage would belong to the lord of whom he held by military tenure.³⁴⁶

Prerogative wardship.Once more we see the king above the common rules.³⁴⁷ If the dead man held in chief of the crown by knight’s service or by grand serjeanty, the king was entitled to the wardship of the heir’s body and to his marriage, no matter how many other lords there might be, and no regard being had to the relative antiquity of the various titles by which the tenements were holden: no one can compete with the king. But further, the king was entitled to the wardship of all the lands which this dead man held, no matter of whom he held them. Such was the right of “prerogative wardship,” and a clause in the Great Charter had been necessary to keep it within these spacious bounds.³⁴⁸ The king was thereby excluded from a prerogative wardship when the tenement holden in chief of the crown was holden in socage, burgage, fee farm or by a petty serjeanty. He was also excluded when the dead man, though a tenant in chief of the [p.303] king, held not “as of the crown” but “as of an honour” which was temporarily or permanently in the king’s hands. It is this last rule that chiefly serves to establish a difference between tenure ut de corona and tenure ut de honore.³⁴⁹

The lord’s rights vendible.The guardian’s rights in the person, in the marriage, in the lands of the heir are regarded as property; they are saleable, assignable rights; large sums are paid for the wardships and marriages of wealthy heirs;³⁵⁰ indeed so thoroughly proprietary and pecuniary are these rights that they can be disposed of by will; they pass like chattels to the guardian’s executors.³⁵¹ In Bracton’s day no distinction in this respect seems drawn between the guardian in chivalry and the guardian in socage. Neither one nor the other need account to the heir for the profits of the land; the one like the other can sell the ward’s marriage.³⁵² This was so until the eve of the Barons’ War, when one of the Provisions of Westminster, afterwards confirmed by the Statute of Marlborough, laid down the rule that the guardian in socage must, when the heir has attained majority, account to him or her for the profits of the land, and is not to give or sell the ward in marriage save to the profit of the ward.³⁵³ This should be had in mind if we are to understand the rights of the guardian in chivalry. The morality of the twelfth century saw nothing shameful in the sale of