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.
[382]. The nature of wardship is more fully explained supra, pp. [75-7].
[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.