Heirs shall be married without disparagement, yet so that before the marriage takes place the nearest in blood to that heir shall have notice.
The Crown’s right to regulate the marriages of wards had become an intolerable grievance. The origin of this feudal incident and its extension to male as well as female minors have been elsewhere explained.[[404]] John made a regular traffic in the sale of wards—young maids of fourteen and aged widows alike. No excuse would be accepted. The Pipe Roll of John’s first year[[405]] records how the chattels of a certain Alice Bertram were taken from her and sold because she refused “to come to marry herself” at the summons of the king. Only two expedients were open to those who objected to mate for life with the men to whom John sold them. They might take the veil, become dead in law, and forfeit their fiefs to escape the burdens inherent in them. Only the cloister could afford them shelter; nowhere in the outer world were they safe. The other way of escape was to outbid objectionable suitors. This was not always possible, for John was predisposed to favour the suit of his foreign gentlemen of fortune, thus befriending his creatures while adding to the slender number of personally loyal tenants-in-capite. John’s greed was insatiable, and brief entries in his Exchequer Rolls condense the story of many a tragedy. In the first year of his reign the widow of Ralph of Cornhill offered 200 marks, with three palfreys and two hawks, that she might not be espoused by Godfrey of Louvain, but remain free to marry whom she chose, and yet keep her lands. This was a case of desperate urgency, since Godfrey, for love of the lady or of her lands, had offered 400 marks for her, if she could show no reason to the contrary. It is satisfactory to learn that in this case the higher bribe was refused, and the lady escaped.[[406]]
Sometimes John varied his practice by selling, not the woman herself, but the right to sell her. In 1203 Bartholomew de Muleton bought for 400 marks the wardship of the lands and heir of a certain Lambert, along with the widow, to be married to whom he would, yet so that she should not be disparaged.[[407]]
Great stress was naturally placed on exemption from "disparagement"—that is, from forced marriage with one who was not an equal. When William of Scotland, by the treaty of 7th February, 1212, conferred on John the right to marry Prince Alexander to whom he would, the qualification was expressly stated, “but always without disparagement.”[[408]] Such a proviso was understood where not expressed, and formed apparently the only restriction admitted by the Crown upon this prerogative. It is not surprising, then, to find it specially confirmed in Magna Carta. The Articles of the Barons had, indeed, demanded a further protection—namely, that a royal ward should only be married with the consent of the next of kin. In our text this is softened down to the mere intimation of an intended marriage. The opportunity was thus afforded of protesting against an unsuitable match. Insufficient as the provision was, it was entirely omitted from the reissues of Henry’s reign. The sale of heiresses went on unchecked.
Magna Carta made no attempt to define disparagement, but the Statute of Merton[[409]] gave two examples,—marriage to a villein or to a burgess. This was not an exhaustive list. Littleton, commenting on this statute,[[410]] adds other illustrations:—“as if the heir that is in ward be married to one who hath but one foot, or but one hand, or who is deformed, decrepit, or having an horrible disease, or else great and continual infirmity, and, if he be an heir male, married to a woman past the age of child-bearing.” Plenty of room was left for forcing on a ward an objectionable husband or wife, who yet could not be proved to come within the law’s definition of “disparagement.” The barons argued in 1258 that an English heiress was disparaged if married to anyone not an Englishman by birth.[[411]]
Was it in the power of the far-seeing father of a prospective heiress by marrying her during his own life-time to render nugatory the Crown’s right to nominate a husband? Not entirely; for the Charter of Henry I. (even when renouncing the more oppressive practice of Rufus) reserved the king’s right to be consulted by the barons before they bestowed the hand of female relations in marriage. Magna Carta is silent on the point, and the presumption is that the existing law was to be maintained.
Bracton[[412]] explains that law:—No woman with an inheritance could marry without the chief lord’s consent, under pain of losing such inheritance; yet the lord when asked was bound to grant consent, if he failed to show good reasons to the contrary; he could not, however, be compelled to accept homage from an enemy or other unsuitable tenant. The Crown’s rights in such matters were apparently the same as those of any mesne lord.[[413]]
[405]. Cited Madox, I. 565.