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.