The History of English Law before the Time of Edward I. Frederic William Maitland
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hardly have had the means of compelling a guardian to render accounts, even had it wished so to do.354
Wardship and the serjeanties.One small point remains to be mentioned. It is the law about wardships and marriages that gradually divides the serjeanties into [p.304] two classes, known as “grand” and “petty.” In the Great Charter, John was forced to say that he would claim no prerogative wardship in respect of “any small serjeanty such as that of supplying us with knives or arrows or the like.”355 The term “small serjeanty” seems one which is not yet technical, and the nature of those serjeanties which are too trivial to justify the royal claim is indicated in the rudest manner. In Bracton’s day one opinion would have applied a merely pecuniary test; a great serjeanty is one that is worth 100 shillings;356 but gradually a different line seems to have been drawn: the tenant by grand serjeanty must do his service in person, and his service must not consist of a mere render.357 Another question was whether tenure by serjeanty of a mesne lord would give the lord wardship and marriage. Here also a line had to be drawn, but where it should be drawn was a question between Raleigh and Segrave. The “rodknight’s” serjeanty of riding with his lord, will this give wardship and marriage? Raleigh decided that it would; Segrave dissented. Bracton seems inclined to hold that the lord’s rights only arise when the serjeanty is one which concerns the defence of the realm.358
The law in Glanvill.Looking back from Bracton to Glanvill we see but little change. In his treatment of these matters Bracton has but revised and expanded his forerunner’s text.359 The Statute of Merton has at a few points given a sharper edge to the lord’s rights; the Great Charter has suppressed some abuses which had grown up under Richard and John, in the main abuses of the prerogatival rights. To speak of the English lords as groaning under the burdens of wardship and marriage is hardly permissible;360 we do not hear their groans. In the days of their power, in 1215 and in 1258, they had little to suggest; it was enough that the heir’s land should not be wasted, that wards [p.305] should not be married below their station.361 Certainly there was at one time a tradition that in or about the year 1222 “the magnates of England granted to King Henry the wardship of their heirs and of their lands, which was the beginning of many evils in England.”362 This story, however, has not been traced beyond chronicles which in this context must be styled modern, and as it is absolutely certain that the king’s right to wardship was much older than Henry III.’s day, we may well doubt whether there is even a grain of truth in the tale.363 More important is it for us to notice with many recent writers that Glanvill says nothing about the lord’s right to the marriage of a male ward; he speaks only of the marriages of women. This is remarkable, but we cannot adopt the popular opinion that this new right, if new we must call it, “was based simply on a strained construction of the general word heredes in a section of Magna Carta.”364 We can trace the sale of the marriages of boys back to a very few years after Glanvill’s death; in 1193 the Bishop of Ely, William Longchamp, for 220 marks buys from the king the wardship of Stephen Beauchamp and the right to marry him wherever he may please.365 Such transactions are common enough throughout the reigns of Richard and John. Archbishop Hubert gives 4,000 marks for the wardship and marriage of Robert Stuteville, though the king reserves a certain veto on the choice of a bride.366 If two men who have filled the office of chief justiciar invest their money thus, the security is fairly good. We must suspect that under Henry II. the sale of the male ward’s marriage was a growing practice. As to earlier days, the one extant Pipe Roll of Henry I.’s reign shows us the king selling wardships,367 and selling the marriages of women;368 it [p.306] seems to show that even the male ward could not lawfully marry without his lord’s consent.369
Earlier law.Then however in our backward progress we come to the declaration of Henry I. in his coronation charter:—“If any of my barons or other men wishes to give his daughter, or sister, or niece, or cousin in marriage, let him speak with me; but I will neither take anything of his for the licence, nor will I forbid him to give her away, unless it be to an enemy of mine. And if on the death of one of my barons or other men he leaves a daughter as heir, I will give her with her land by the counsel of my barons. If he leaves a widow, who is without children, she shall have her dower and marriage portion, and I will not give her in marriage against her will. If she has children, she shall have her dower and marriage portion while she remains chaste, and I will not give her unless with her consent. And the wife or some other relative who has the best claim shall be guardian of the land and of the children. And I bid my barons keep within the same bounds as regards the sons, daughters and wives of their men.”370 That Henry made these promises is certain, that he broke them is equally certain; but here again, as in the matter of reliefs, the question arises whether his promises represent the old law as it stood before the tyranny of Rufus and Flambard, or whether he is buying support by relaxations of ancient rules. The question is difficult, for of the Conqueror’s practice we know little, and of the Norman law of the eleventh century we know, if that be possible, less.
Norman law.In later days, Norman law and English law agree; they agree even in some of the minuter details of prerogative wardship, for as in England no lord can compete with the king, so in Normandy none can compete with the duke. Perhaps under French dominion [p.307] some of the worst characteristics of the Anglo-Norman law were mitigated. In Glanvill’s day the rule that a ward might not lawfully marry without the lord’s consent was applied in Normandy to male as well as to female wards; in later statements of the rule we hear only of female wards.371 From a Norman lawyer, a contemporary of Glanvill, we have, what no English lawyer gives us, namely, a defence of the law, and a curious defence it is:—“A fatherless heir must be in ward to some one. Who shall be his guardian? His mother? No. Why not? She will take another husband and have sons by him, and they, greedy of the heritage, will slay their firstborn brother, or the step-father will slay his step-son. Who then shall be the guardian? The child’s blood kinsmen? No. Why not? Lest, thirsting for his heritage, they destroy him. For the prevention of such faithless cruelty, it is established that the boy be in ward to one who was bound to his father by the tie of homage. And who is such an one? The lord of the land who never can inherit that land in demesne; for heirs of a noble race always have many heirs. Besides they should be brought up in good houses and honourably educated. Those who are brought up in their lords’ houses are the apter to serve their lords faithfully and love them in truth; and the lords cannot look with hatred on those whom they have reared, but will love them and faithfully guard their woods and tenements and apply the profits of their land to their advancement.” As to prerogative wardship, the duke, who is bound to rule all his people, is more especially bound to have a care for the orphan.372
The Norman apology.That this quaint apology is mere nonsense we are not entitled to say. There was a strong feeling that to commit the care of a child to the custody of his expectant heir was to set the wolf to guard the lamb. Fortescue, when he sang the lauds of the laws of England, made boast of the wisdom of our rules about socage guardianship. Some French customs managed the matter yet more prudently, giving the custody of the lands to those who might inherit, the custody of the child’s person to those who could not inherit from him. Still we cannot regard the rights of English and Norman lords as instituted for the protection of infant life, or for the advancement [p.308] of the ward by education in a “good house,” though here we may see some set-off for what we are wont to regard as tyrannous exactions. The real question is whether we are entitled to find the explanation of the English and Norman, and (it should be added) the Scottish, law of wardship in the ancient history of the precarious beneficium.
Origin of these rights.The history of the law has been pictured thus:—Gradually the “benefice” lost its