Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

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].