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CHAPTER FOUR. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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Custos terre hujusmodi heredis qui infra etatem fuerit, non capiat de terra heredis nisi racionabiles exitus, et racionabiles consuetudines, et racionabilia servicia, et hoc sine destructione et vasto hominum vel rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti vel alicui alii qui de exitibus illius nobis respondere debeat, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committatur duobus legalibus et discretis hominibus de feodo illo, qui de exitibus respondeant nobis vel ei cui eos assignaverimus; et si dederimus vel vendiderimus alicui custodiam alicujus talis terre, et ille destructionem inde fecerit vel vastum, amittat ipsam custodiam, et tradatur duobus legalibus et discretis hominibus de feodo illo qui similiter nobis respondeant sicut predictum est.
The guardian of the land of an heir who is thus under age, shall take from the land of the heir nothing but reasonable produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods; and if we have committed the wardship of the lands of any such minor to the sheriff, or to any other who is responsible to us for its issues, and he has made destruction or waste of what he holds in wardship, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall be responsible for the issues to us or to him to whom we shall assign them; and if we have given or sold the wardship of any such land to anyone and he has therein made destruction or waste, he shall lose that wardship, and it shall be transferred to two lawful and discreet men of that fief, who shall be responsible to us in like manner as aforesaid.
This chapter and the next treat of wardship,1 a muchhated feudal incident, which afforded opening for grave abuses. It is a mistake, however, to regard its mere existence as an abuse: it seems to have been perfectly legal in England from the date of the Norman Conquest, although some writers2 consider it an innovation devised by William Rufus and Flambard. Their chief argument is that Henry I., in promising redress of several inventions of Rufus, promised also to reform wardship. This shows that wardship was abused, but does not prove it an innovation.
The Charter of Henry committed him to drastic remedies, which would have altered the character of wardship altogether. Clause 4 of that document removed from the lord’s custody both the land and the person of the heir, and gave them to the widow of the deceased tenant (or to one of the kinsmen, if such kinsman had, by ancient custom, rights prior to those of the widow).3 This was one of the many promises which the “lion of justice” never kept. Wardship continued to be exercised as before, over lay fiefs, throughout the reigns of Henry I. and Stephen. Article 4 of the Assize of Northampton (1176) merely confirmed the existing practice when it allowed wardship to the lord of the fee.4 The barons in 1215 made no attempt to revert to the drastic remedies of the Charter of Henry I., although the evils complained of had become worse under John’s misgovernment.
It must be remembered that “wardship” placed the property and person of the heir at the mercy of the Crown. Even if the popular belief as to the fate met by prince Arthur at his uncle’s hands was unfounded, John was not the guardian to inspire confidence in the widowed mother of a Crown tenant whose estates the King might covet. Further, the King might confer the office, with the delicate issues involved, upon whomsoever he would. When such a trust was abused, it was difficult to obtain redress. In 1133, a guardian, accused de puella quam dicitur violasse in custodia sua, paid a fine to the Crown, if not as hush money, at least in order to obtain protection from being sued elsewhere than in the Curia Regis.1
Guardians were of two kinds. The King might entrust the lands to the sheriff of the county where they lay (or to one of his bailiffs), such sheriff drawing the revenues on the Crown’s behalf, and accounting in due season at the exchequer. Alternatively, the King might make an out–and–out grant of the office, with all its profits, to a royal favourite or the highest bidder. Commentators of a later date2 apply the word “committee” to the former type of guardian, reserving “grantee” for the latter. This distinction, mentioned by Glanvill,3 obtains recognition in this passage of the Charter. Neither type was likely to have the interests of the minor at heart. They had always strong inducements to exhaust the soil, stock, and timber, uprooting and cutting down whatever would fetch a price, and replacing nothing. The heir too often found impoverished lands and empty barns.
William Marshal’s experience affords apt illustration. Early in Richard’s reign, he married Isabel of Clare, but John, Dominus Hiberniae, refused seisin of the bride’s Irish lands. When Richard was appealed to, John tried to make conditions: “provided the grants of lands I have made to my men hold good and be confirmed,” to which the King aptly replied: “That cannot be: for what would then remain to him, seeing that you have given all to your people?”4
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, 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).1 It is easy to understand waste of goods; but what is “waste of men”? An answer may be found in the “unknown Charter of Liberties,”2 which binds guardians to hand over the land to the heir “sine venditione nemorum et sine redemptione hominum.” To enfranchise villeins was one method of “wasting men.” The young heir, when he came to his estates, must not find his praedial serfs emancipated.3 In 1259, the Provisions of Westminster (c. 20) forbade “farmers” to make waste, or sale, or exile, of woods, or houses, or men. The statute of Marlborough placed such defaulters at the King’s mercy.
(2) Punishment of wasteful guardians. The Charter provides appropriate 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. While the Statute of Westminster1 merely repeated the words of Magna Carta, the Statute of Gloucester2 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 (c. 13) enacted that King’s escheators, 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.3
(3) Provision against 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 promised to supersede the keeper guilty of waste, by two trustworthy 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” proposed a more drastic remedy: the lands were to be entrusted at once to four knights of the fief, without waiting until damage had been done. Even the milder provision of Magna Carta was an innovation, and there is no evidence that it was ever put in force.
[1 ]The nature of wardship is more fully explained supra, pp. 61–2.
[2 ]E.g. Taswell–Langmead, Eng. Const. Hist., p. 51 n.
[3 ]“This, it would seem, was the old English rule;” see Ramsay, Foundations of England, II. 230.
[4 ]It is a common error to suppose that this Assize restores wardship to the lord.
[1 ]See Pipe Roll, 29 Henry II., cited Madox, I. 483.
[2 ]E.g. Coke, Second Institute, p. 13.
[3 ]VII. c. 10.
[4 ]Orpen, Ireland, II. 203.
[1 ]II. folio 87.
[2 ]See Appendix.
[3 ]Another way of “wasting” villeins was by tallaging them excessively. (For meaning of tallage cf. infra, c. 12.) Thus Bracton’s Note Book reveals how one guardian destruxit villanos per tallagia (v. case 485); how another exiled or destroyed villeins to the value of 300 marks (case 574); how a third destroyed two rich villeins so that they became poor and beggars and exiles (case 632). Cf. also case 691. Daines Barrington, writing towards the middle of the eighteenth century, went too far when he inferred from this passage “that the villeins who held by servile tenure were considered as so many negroes on a sugar plantation” (Observations, p. 7).
[1 ]Edward I. c. 21.
[2 ]Edward I. c. 5.
[3 ]Coke, Second Institute, p. 13, enunciates a doctrine at variance with this statute, holding that the heir who suffered damage could not, on coming of age, obtain triple damages, or indeed any damages at all, if the King had previously taken amends himself. Coke further maintains that even after waste, the person of the heir was left in the power of the unjust guardian, explaining that when the Charter took away the office “this is understood of the land, and not of the body.”