LECTURE XIII.

Wardship in Socage—The nature and history of the incident of marriage.

Having, in the last lecture, given some account of wardship and guardianship in chivalry, it will be necessary to mention what provision the law made, now lands were become hereditary, for the benefit of a minor, when lands, held in socage, descended to him. In the former case, where war was the consideration, whose times and exigences were uncertain, the law was obliged, on account of the public safety, to consider the interest of the lord, who was to answer the duties to the state, in the first place, and the interest of the minor only in a secondary light. But in socage lands, which the lord had parted with for certain fixed stipulated services, to be paid at particular times, the lord had no claim to any more than them. Neither did the public interest demand a military person for the guardian of one who was not to be bred a soldier. A near relation, therefore, was the properest person to take the wardship.

But in fixing who that person should be, the feudal and the Roman civil law proceeded on different principles; the latter fixed upon the nearest relation that was inheritable to the estate, but the former entirely excluded all relations that might inherit. Thus, if the land descended on the side of the father, all relations of the father were incapable, and the mother, or the next of kin of her blood, was the guardian. And this is a difference wherein the English lawyers greatly triumph over the civilians. For to give the care of a minor to one who might be his heir, is, they say, quasi agnum lupo committere ad devorandum. But this very reason strongly proves the general wickedness and barbarity of the people, who were obliged to establish this rule at that time. Both laws were equally wise, because adapted each to the circumstances of the nations that made them. The Romans, who were a polished civilized people, among whom murders were infrequent, were not afraid to trust the person of the minor to the care of one who might be his heir; and such an one they preferred on account of the preservation of the estate, which they presumed would be taken best care of by him to whom it might descend. The northern nations, on the contrary, who were barbarians, and murderers, were obliged to sacrifice the consideration of preserving the estate, to the personal safety of the infant, and therefore committed both to one who could have no interest in the succession.

The guardian in socage differed from guardian in chivalry in this, that he was but in the nature of a bailiff, or trustee, for the minor, to whom, at the expiration of his guardianship, he was obliged to account, upon an allowance of all his reasonable costs and charges. Another difference was, as to the term of the guardianship. For this guardianship expired at the ward’s full age of fourteen; at which time, if he pleased, he might enter and occupy the lands himself, or choose another guardian; for as at that age he had discretion enough to consent to marriage, so did the law suppose he had sufficient perhaps to manage his own affairs, at least to choose the properest person for that purpose[182].

But put the case, Suppose that the minor doth not enter, or choose another guardian, but that the old one continues to receive the profits, what remedy shall the minor have for those received after his age of fourteen? Certain it is, he cannot bring an action of account against him as guardian; for guardianship is expired; and yet the infant’s discretion cannot be presumed so great, as to be perfectly acquainted with all his legal rights, and therefore his negligence shall not be imputed to him. The law in this case remedieth him by a reasonable fiction, and supposeth, though the fact hath not been so, that the minor had appointed him to receive the profits of the estate, and therefore gives an action of accounts against him, not as guardian, but as bailiff or receiver.

But suppose the next of kin neglects the guardianship, and any other person of his own head enters, and takes the profits, what remedy shall the minor have? In this case the law will not suppose him that enters to be a wrong doer, an abator, as the law would call him, if the heir was of full age; but will rather presume his act proceeded from humanity and kindness, to supply the neglect of the proper guardian; and therefore, though he is not appointed guardian, either by the act of law or otherwise, he shall be considered as such, and the heir, after fourteen, shall have an action of account against him, and charge him as guardian. So strictly was the guardian in socage accountable to his ward for the profits, that, if he married him within the age of fourteen, he was not only accountable for the money he received in consideration thereof (as it was the practice in those days to sell the marriage of wards) but if he received none, he was accountable out of his own fortune for what he might have received on that account, unless the match itself was equally, or more beneficial.

The next consequence of fiefs becoming hereditary, and which followed from the wardship, is the marriage of the ward by military service, which belonged to his lord, and was one of his beneficial fruits of tenure; and although this part of our law is now antiquated by the abolishing of knight-service, it is necessary, for the understanding our books, to have at least a general notion of it.

This right rose originally, on the continent, from fiefs becoming descendible to female heirs, and was grounded upon the same principle as the rule which forbad vassals to alien without their lords consent. As every feudal kingdom, at this time, consisted of a number of principalities, under their respective lords, who were often at war with each other, the tenant could not alien without his lord, lest he might introduce an enemy into the feudal society. The like danger was there if a female heiress was permitted to marry at her own pleasure, or could be disposed of by her relations without the lord’s consent. And at first, it seems, that this rule was general to a woman heiress during her whole life; but if so it was, it soon abated, and was confined to the marriage of females in wardship, and to the first marriage only. The law of Normandy says, if a woman be in wardship, when she shall be of an age to marry, she ought to marry by the counsel and licence of her lord, and by the counsel and assent of her relations and friends, according to what the nobleness of her lineage and the value of her fief shall require. So that antiently the lord had not the absolute disposal of her, nor had he any thing to say to the marriage of males; for though he should marry an enemy, the fief was not thereby put into subjection to her, but she into the subjection of the vassal. And this rule, that the lord’s consent should be had, was not intended for him to make an advantage of, but was a mere political institution, for the safety of the community. Such was the law introduced into England at the conquest. However, it was but natural to expect that avaricious lords would take advantage of their negative voice, to extort money for licence, and by that, and their influence over their vassals, to arrogate the sole power to themselves. That William Ruffus acted thus, we may well learn from the remedial laws of his brother and successor Henry the First; Si quis baronum, vel hominum meorum, filiam suam nuptum tradere voluerit, sive sororem, sive neptem, sive cognatam, mecum inde loquatur; sed neque ego aliquid de suo pro hac licentia accipiam, neque ei defendam quin eam det, excepto si eam jungere velit inimico meo. Another is, Si mortuo barone, vel alio homine meo, filio hæres remanserit, illam dabo consilio baronum meorum [183].

Notwithstanding these laws, the mischief still gained ground, and the lords extended their encroachments, until they not only got the absolute disposal of female, but of male heirs also. When this happened, is hard to determine precisely. That it was after Glanville, who wrote in Henry the Second’s time, and before Bracton, who wrote in Henry the Third’s, is plain: Mr Wright’s conjecture seems probable, that it grew up in Henry the Third’s time, when the barons were very powerful, from a strained construction of Magna Charta, which says, Hæredes maritentur absque disparagatione; where the general word hæredes should have been construed to extend only to such heirs as by the former law were marriageable by their lords, namely, female ones; but both king and lords, taking advantage of the generality of the expression, claimed and usurped that of the son’s also[184].

However, it is rather to be presumed that this incroachment began earlier; since in the statute of Merton, the twentieth of Henry the Third, we find these words: Quia maritagium ejus qui infra ætatem est (speaking of a male) mero jure pertinet ad dominum feudi. From whence I rather gather the practice was earlier than Magna Charta, which was not above thirty years before, and confirmed by its interpretation. But if, in this respect, the vassals were encroached on by their lords, in another, they met with a mitigation in their favour. For the consent during the father’s life, went into disuse, and every man was allowed to marry his son or daughter at his pleasure; and this with very good reason. For as the prohibition was for fear of introducing an enemy, of this there was no danger where the marriage was by the father, a vassal, bound by homage and fealty to do nothing to the prejudice of his lord. Thus was right of consent to marriage, introduced first for political reasons, turned into a beneficial perquisite, and fruit of tenure, for the advantage of the lord; and notwithstanding all the laws made to regulate it, as constantly abused; so that the evils thence arising were not among the least causes for abolishing military tenures[185].

The penalty for marrying without consent was originally, as all breaches of fealty were, absolute forfeiture. But the rigour of the feudal law subsiding, lighter penalties were introduced. By the sixth chapter of Merton remedy is given to the lord, whose ward, under fourteen, has been taken away by any layman (and a later act extends it to the clergy) and married, by an action against the raptor or ravisher, as he is called, for the value of the marriage, besides imprisonment and a fine to the king. If the ward himself, after the age of consent, or fourteen, should, to defraud his lord, marry himself, he, as guilty of a breach of fealty, is more grievously punished than a stranger. For this act provides, that the lord, in that case, shall retain the lands after the full age of twenty-one, for so long a time as, out of the profits, he might receive double the value of the marriage[186].

The next, the seventh chapter, is in favour of the ward, and an inforcement of that chapter of Magna Charta which forbids disparagements without inflicting any penalty. It enacts, that if the minor under fourteen is married by his Lord to his disparagement, upon the plaint of his relations, the lord shall lose the wardship; and the profits of the lands, till full age, shall be received by the relations so complaining, and laid out for the benefit of the heir. But if the marriage was after fourteen, the age of consent, it was no forfeiture, on the maxim, Volenti non fit injuria. This act goes farther in favour of the minor; for it gives him a liberty of refusing any match the lord should offer him. But to prevent the lord’s entirely losing the benefit of the marriage by the refractoriness of the ward, it enacts, in this case, that if he refuses a convenable marriage, the lord shall hold the lands after twenty-one to his own use, until such time as his late ward shall pay him the single value thereof.

The twenty-second chapter of Westminster the first confirms and repeats the sixth of Merton, and farther obviates a fraudulent practice of the guardians of female heirs. I observed that their wardship by law ceased at the age of fourteen, by which time they might have husbands capable of the service: but some lords, for covetousness of the lands, as the act expresses it, would not offer any match at all to their female wards, under the pretence of their being incapable of the services, in order to hold on the lands for an unlimited time. This act so far alters the old law, that if the heiress arrives unmarried at the age of fourteen, the lord should hold two years longer, that he may have time to look out for a proper match to tender her, within which time, if he neglects it, he loses all right to her marriage. On the other hand, if the heiress will refuse a suitable offer, the lord is impowered to retain the lands until twenty-one, and so much longer, until he has received out of the profits satisfaction for the value.

The ravishment of wards from their lords continuing, notwithstanding the statute of Merton, the thirty-fifth of Westminster the second gave the writ called Of ravishment of ward, and assigned a more speedy and beneficial method of proceeding, and added to the punishments by the former act of Merton inflicted on offenders[187].

But notwithstanding all these regulations concerning marriages, and the other many acts made to prevent misbehaviour of lords to the lands of their wards, the source of the evil remained in the wardship itself; and the evils constantly followed, insomuch that for hundreds of years, it was one of the heaviest grievances the subject suffered. Many were the wastes done to estates; many the heirs married contrary to their inclinations, and frequently unsuitably. The grievances fell heaviest on the wards of the crown. There were always a set of needy or greedy courtiers ready, if they had favour enough to beg, or otherwise to buy at an under rate, the wardships of minor tenants, of which they were sure to make the most advantage; marrying the most opulent heirs to their own children, or relations, or extorting extravagant sums for their consent. A remarkable instance of this happened so lately as Charles the First’s time, in the case of the earl, afterwards first duke of Ormond. A long suit had subsisted between the lady Preston, grand-daughter and heiress at law of Thomas earl of Ormond, and her cousin, the heir male of the family, for that part of the estate her grandfather had entailed to go with the title. At length the relations on both sides thought the best expedient to end this intricate dispute, was by uniting the young relations, who likewise had conceived a strong affection for each other; yet, although the king approved highly thereof, did the earl of Warwick, who was grantee of the young lady’s wardship, extort ten thousand pounds before he would consent to a marriage on every account so desirable.

King Henry the Eighth, finding how grievously the subject was oppressed, and how much the crown was defrauded, erected, by act of parliament, a court called the Court of Wards, to take proper care of minors, and to answer in a moderate manner for the profits to the king. This for some time was a considerable alleviation of the load; but in the weak reign of James the First, who was governed by his favourites Somerset and Buckingham, this court was converted into an engine for raising their families, by providing their numerous and indigent relations with the greatest heiresses, to the great discontent of the antient nobility, who saw the most opulent fortunes suddenly raised by private gentlemen, dignified by titles for the purpose. And great were the extortions likewise for the licenses that were granted to some to marry at their pleasure. The only advantage the public reaped at this time from this right of disposal in marriage was, and it must be allowed to be a considerable one, the opportunity it gave the crown of breeding the heirs of many families in the reformed religion; and in justice, it must be owned, this was not neglected.

In the eighteenth year of this last reign, it was moved in parliament to purchase off these heavy burthens of ward and marriage, by settling an handsome yearly revenue in lieu thereof on the crown. But the attempt did not succeed at that time, probably owing to the courtiers opposition to it, from their own interested views. In Charles the First’s reign, this court was one of the great objects of complaint. At length, on the restoration, the king consented to turn all the military tenures, except grand serjeanty, into socage, in consideration of an hereditary revenue settled on him, and so all the fruits thereof ceased, and the feudal system, which had for ages, from time to time, undermined the constitution, fell to the ground, though very many of the rules of our law, founded on its principles, still retain their force[188]. In this kingdom the equivalent given for this abolition was the tax of hearth-money, in which, it must be owned, the king, and those who had been his military tenants, were a little too sharp for the rest of the people; for by the improvements of the kingdom, that revenue is every day increasing to the crown, and almost the whole burthen is thrown on the lower class, who before felt none of the oppression, or weight of wardship and marriage.