The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Second Edition.
• From Preface to First Edition.
• Historical Introduction
• Part I.: Events Leading to Magna Carta.
• Part II.: Feudal Grievances and Magna Carta.
• Part III.: Magna Carta: Its Form and Contents.
• Part IV.: Historical Sequel to Magna Carta.
• Part V.: Magna Carta: Original Versions, Printed Editions and Commentaries.
• Text, Translation, and Commentary
• Preamble.1
• Chapter One.
• Chapter Two.
• Chapter Three.
• Chapter Four.
• Chapter Five.
• Chapter Six.
• Chapter Seven.
• Chapter Eight.
• Chapter Nine.
• Chapter Ten.
• Chapter Eleven.
• Chapter Twelve.
• Chapter Thirteen.
• Chapter Fourteen.
• Chapter Fifteen.
• Chapter Sixteen.
• Chapter Seventeen.
• Chapter Eighteen.
• Chapter Nineteen.
• Chapter Twenty.
• Chapter Twenty–one.
• Chapter Twenty–two.
• Chapter Twenty–three.
• Chapter Twenty–four.
• Chapter Twenty–five.
• Chapter Twenty–six.
• Chapter Twenty–seven.
• Chapter Twenty–eight.
• Chapter Twenty–nine.
• Chapter Thirty.
• Chapter Thirty–one.
• Chapter Thirty–two.
• Chapter Thirty–three.
• Chapter Thirty–four.
• Chapter Thirty–five.
• Chapter Thirty–six.
• Chapter Thirty–seven.
• Chapter Thirty–eight.
• Chapter Thirty–nine.
• Chapter Forty.
• Chapter Forty–one.
• Chapter Forty–two.
• Chapter Forty–three.
• Chapter Forty–four.
• Chapter Forty–five.
• Chapter Forty–six.
• Chapter Forty–seven.
• Chapter Forty–eight.
• Chapter Forty–nine.
• Chapter Fifty.
• Chapter Fifty–one.
• Chapter Fifty–two.
• Chapter Fifty–three.
• Chapter Fifty–four.
• Chapter Fifty–five.
• Chapter Fifty–six.
• Chapter Fifty–seven.
• Chapter Fifty–eight.
• Chapter Fifty–nine.
• Chapter Sixty.
• Chapter Sixty–one.
• Chapter Sixty–two.
• Chapter Sixty–three.
• Appendix. Documents Relative To, Or Illustrative Of, Magna Carta.
• I.: The Charter of Liberties of Henry I.1 (1100.)
• II.: The Second Or Oxford Charter of Stephen.1 (1136.)
• III.: Charter of Henry II.1 (circa 1154.)
• IV.: The So–called “unknown Charter of Liberties” of John.2 (circa 1214–1215.)
• V.: The Articles of the Barons.1 (1215.)
• VI.: Writs Supplementary of John’s Great Charter.
• VII.: The Great Charter of Henry III.2 (third Reissue, 11th February, 1225.)
• VIII.: Carta De Foresta.1 (6 November, 1217.)

CHAPTER SIX.

Heredes maritentur absque disparagacione, ita tamen quod, antequam contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius heredis.

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.4 John made a regular traffic in the sale of wards—maids of fourteen and widows alike. The Pipe Roll of John’s first year5 records how the chattels of Alice Bertram were sold because she refused “to come to marry herself” at the King’s summons. Only two expedients were open to those who objected to mate 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; or they might outbid objectionable suitors. Brief entries in John’s Exchequer Rolls condense many a tragedy. In his first year, 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, if she could show no reason to the contrary. It is satisfactory to learn that the lady escaped.1

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.2

Great stress was placed on “disparagement”—that is, forced marriage with one not an equal. William of Scotland, by the treaty of 7th February, 1212, conferred on John the right to marry prince Alexander to whom he would, “but always without disparagement.”3 Such proviso was understood where not expressed. It is not surprising, then, to find it confirmed in Magna Carta. The Articles of the Barons had, indeed, demanded that a royal ward should only be married with consent of the next of kin. In our text, this is softened down to the mere intimation of an intended marriage: the opportunity was still afforded of protesting against an unsuitable match. Insufficient as the provision was, it was 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 Merton4 gave two examples,—marriage to a villein or a burgess. This was not an exhaustive list. Littleton1 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 childbearing.” Plenty of room was left for forcing on a ward an objectionable spouse, who yet did not come within the law’s definition of “disparagement.” The barons argued in 1258 that an English heiress was disparaged if married to anyone not English born.2

Was it in the power of the far–seeing father of a prospective heiress, by bestowing her in marriage during his own life–time, to render nugatory the Crown’s right to nominate a husband? Not entirely: the Charter of Henry I. 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. Bracton3 thus explains the 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 reason 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 a mesne lord.4

[4 ]See supra, 26–3.

[5 ]Cited Madox, I. 565.

[1 ]See Rotuli de Oblatis et Finibus, p. 37, and Pipe Roll, 2 John, cited by Madox, I. 515.

[2 ]Pipe Roll, 4 John, cited by Madox, I. 324.

[3 ]See infra, c. 59.

[4 ]20 Henry III. c. 6.

[1 ]Tenures, II. iv. s. 109.

[2 ]See Petition of the Barons (Sel. Charters, 383). Gradually the conception of disparagement expanded, partly from the natural development of legal principles and partly from the increased power of the nobility. Coke commenting on Littleton (Section 107) mentions four kinds of disparagements: (1) propter vitium animi, e.g. lunatics; (2) propter vitium sanguinis, villeins, burgesses, sons of attainted persons, bastards, aliens; (3) propter vitium corporis, as those who had lost a limb or were diseased or impotent; and (4) propter jacturam privilegii, or such a marriage as would involve loss of “benefit of clergy.” The last clause had no connection with the law as it stood in 1215. Marriage with a widow or widower was deemed by the Church in later days an act of bigamy, and involved loss of benefit of clergy, until this was remedied by the Statute 1 Edward VI. c. 12 (sect. 16).

[3 ]II. folio 88.

[4 ]For further information on the age at which marriage could be tendered to a ward, and the penalties for refusing, see Thomson Magna Carta, pp. 170–171.