Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
(_d_) _Marriage_ as a feudal incident belonging to the lord is difficult
to define generally, since its meaning changed. Originally it seems to
have implied little more than the right of a lord to forbid an heiress,
holding a fief under him, to marry a personal enemy, or some one
otherwise unsuitable. Such veto was only reasonable, since the husband
of the heiress would become the owner of the fee and the tenant of the
lord. This negative right had almost necessarily a positive side; the
claim to concur in the choice of a husband gradually expanded into an
absolute right of the lord to dispose by sale or otherwise of the lands
and person of his female ward. The prize might go as a bribe to any
unscrupulous gentleman of fortune who placed his sword at the King’s
disposal, or it might be made the subject of auction to the highest
bidder. The lady passed as a mere adjunct to her own estates, and
ceased, strictly speaking, to have any voice in choosing a partner for
life. She might protect herself indeed against an obnoxious husband by
out-bidding her various suitors. Large sums were frequently paid for
leave to marry a specified individual or to remain single.
This right seems, at some uncertain date, to have been extended from
females to males, and instances of sums thus paid occur in the _Pipe
Rolls_. It is difficult at first sight to imagine how the Crown found a
market for such wares as male wards; but probably wealthy fathers were
ready to purchase desirable husbands for their daughters. Thus in 1206 a
certain Henry of Redeman paid forty marks for the hand and lands of the
heir of Roger of Hedon, “_ad opus filiae suae_,”[99] while Thomas Basset
secured a prize in the person of the young heir of Walerand, Earl of
Warwick, to the use of any one of his daughters.[100] This extension to
male heirs is usually explained to have been founded on a strained
construction of chapter 6 of Magna Carta, but the beginnings of the
practice can be traced much earlier than 1215.[101] The lords’ right to
sell their wards was recognized and defined by the Statute of Merton,
chapter 6. The attempts made to remedy some of the most serious abuses
of the practice may be read in Magna Carta.[102]
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Footnote 99:
_Rotuli de oblatis et finibus_, p. 354.
Footnote 100:
_Rot. Claus._, pp. 37, 55.
Footnote 101:
Pollock and Maitland, I. 305.
Footnote 102:
See _infra_, under chapters 6, 7, and 8.
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Mr. Hallam[103] considers that “the rights, or feudal incidents, of
wardship and marriage were nearly peculiar to England and Normandy,” and
that the French kings[104] never “turned this attribute of sovereignty
into a means of revenue.”
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Footnote 103:
_Middle Ages_, II. 429.
Footnote 104:
p. 437.
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Public-domain text, read in full here on John Shaqi.
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