land, and he make destruction or waste of those things that he hath in custody, we will take of him amends and recompense thereof, and the land shall be committed to two lawful and discreet men of that fee, which shall answer unto us for the issues of the same land, or unto him whom we will assign. And if we give or sell to any man the custody of any such land, and he therein do make destruction or waste, he shall lose the same custody; and it shall be assigned to two lawful and discreet men of that fee, which also in like manner shall be answerable to us as afore is said.

C. v. The keeper, so long as he hath the custody of the land of such an heir, shall keep up the houses, parks, warrens, ponds, mills, and other things pertaining to the said land, with the issues of the said land; and he shall deliver to the heir, when he cometh to his full age, all his lands stored with ploughs, and all other things, at the least as he received it. All these things shall be observed in the custodies of Archbishopricks, Bishopricks, Abbeys, Priories, Churches, and Dignities vacant, which appertain to us, except this that such custody shall not be sold.

c. xxxvii. If any do hold of us by fee-ferm, or by socage, or burgage, and he holdeth lands of another by knight's service, we will not have the custody of his heir, nor of his land, which is holden of the fee of another, by reason of that fee-ferm, socage or burgage; neither will we have the custody of such fee-ferm, or socage, or burgage, except knight's service be due to us out of the same fee-ferm. We will not have the custody of the heir, or of any land, by occasion of any petit serjeanty, that any man holdeth of us by service to pay a knife, an arrow, or the like.

§ 3. Marriage.

It has already been seen that in the time of Henry II the right of the lord to dispose of his tenant in marriage applied only to female tenants. Glanvill does not speak of this right as a source of profit to the lord, but merely as a security against the lord being obliged to receive the homage of a hostile or unfriendly tenant1. That this was the origin of the practice

1 See above, Chap. II. § 3 (4).

appears clearly from the charter of Henry I1; nor could the lord arbitrarily refuse his consent, much less force his female tenant to marry against her will. In course of time, rights which were formerly based on purely feudal principles were retained in an exaggerated form merely because they became a source of profit to the lord. In this case the right to give consent to the marriage of a female tenant developed into the right to tender a suitable match, not only to the female tenant, but also to the male tenant if under age, a claim for which no feudal justification existed, and which was based simply on a strained construction of the general word 'haeredes' in the following section of Magna Carta 2. It was held that this expression applied to male as well as female heirs, and gave the lord the right to the marriage of the one as well as the other. The penalty by which the lord's rights were enforced was finally fixed by the subjoined provision of the Statute of Merton.

3

MAGNA CARTA (1215), c. vi. Haeredes maritentur absque disparagatione, ita tamen quod, antequam contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius haeredis.

STATUTE OF MERTON, 20 Hen. III, c. vi. De haeredibus per parentes vel per alios vi abductis vel detentis, ita provisum est; quod quicunque laicus inde convictus fuerit quod puerum sic maritaverit, reddat perdenti valorem maritagii, et pro delicto corpus ejus capiatur et imprisonetur, donec perdenti emendaverit delictum, si puer maritetur, et praeterea donec domino regi satisfecerit pro transgressione; et hoc fiat de haerede infra quatuordecim annos existente. De haerede autem cum sit quatuordecim annorum vel ultra, usque ad plenam aetatem, si se maritaverit sine licentia domini sui, ut ei auferat maritagium suum, et dominus offerat ei rationabile maritagium ubi non disparagetur, dominus suus tunc teneat terram ejus ultra terminum

1 See above, p. 42, note 4.

2 See Blackstone, ii. p. 71.

* This proviso is somewhat significantly omitted in the Charter of 1216 and subsequent editions.

Notice the extension to males.

aetatis suae, scilicet viginti et unius anni, per tantum tempus quod possit inde duplicem valorem maritagii recipere secundum aestimationem legalium hominum, vel secundum quod ei pro eodem maritagio prius fuerit oblatum sine fraude et malitia, et secundum quod probari poterit in curia domini regis.

De dominis qui maritaverint illos quos habent in custodia villanis vel aliis sicut burgensibus ubi disparagentur; si talis haeres fuerit infra quatuordecim annos, et talis aetatis quod consentire non possit, tunc si parentes conquerantur, dominus ille amittat custodiam usque ad legitimam aetatem haeredis ; et omne commodum, quod inde perceptum fuerit, convertatur in commodum ipsius qui infra aetatem est, secundum dispositionem et provisionem parentum, contra dedecus ei factum. Si autem fuerit quatuordecim annorum et ultra, quod consentire poterit, et tali maritagio consenserit, nulla sequatur poena.

c. vii. Si quis haeres cujuscunque fuerit aetatis pro domino suo se noluerit maritare, non compellatur hoc facere, sed cum ad aetatem pervenerit, det domino suo et satisfaciat ei de tanto, quantum percipere posset ab aliquo pro maritagio, antequam terram suam recipiat, et hoc sive voluerit se maritare sive non; quia maritagium ejus qui infra aetatem est mero jure pertinet ad dominum feodi1.

TRANSLATION.

MAGNA CARTA, c. vi. Heirs shall be married without disparagement.

STATUTE OF MERTON, c. vi. Of heirs that be led away, and withholden, or married by their parents, or by other, with force, against our peace, thus it is provided; That whatsoever layman be convict thereof that he hath so withholden any child, led away, or married; he shall yield to the loser the value of the marriage; and for the offence his body shall be taken and imprisoned until he hath recompensed the loser, if the child be married; and further until he hath satisfied the king for the trespass; and this must be done of an heir being within the age of fourteen years. And touching an heir being fourteen years old or above, unto

1 See the Statute 3 Ed. I, cap. 22, by which these provisions of the Statute of Merton are re-enacted and extended.

his full age, if he marry without licence of his lord to defraud him of the marriage, and his lord offer him reasonable and convenient marriage, without disparagement, then his lord shall hold his land beyond the term of his age, that is to say, of one and twenty years, so long that he may receive the double value of the marriage, after the estimation of lawful men, or after as it hath been offered him for the said marriage before, without fraud or collusion, and after as it may be proved in the King's Court. And as touching lords which marry those that they have in ward to villains, or other, as burgesses, where they be disparaged, if any such an heir be within the age of fourteen years, and of such age that he cannot consent to marriage, then if his friends complain of the same lord, the lord shall lose the wardship unto the age of the heir, and all the profit that thereof shall be taken shall be converted to the use of the heir being within age, after the disposition and provision of his friends, for the shame done to him; but if he be fourteen years and above, so that he may consent, and do consent to such marriage, no pain shall follow.

c. vii. If an heir, of what age soever he be, will not marry at the request of his lord, he shall not be compelled thereunto; but when he cometh to full age, he shall give to his lord and pay him as much as any would have given him for the marriage, before the receipt of his land, and that whether he will marry himself, or not; for the marriage of him that is within age of mere right pertaineth to the lord of the fee.

§4. Widow's Dower.

The additional provision made in the edition of 1217 to the provisions of the earlier issues of the Charter in respect of widows' rights fixed the law of dower on the basis on which it still rests. The general rule of law still is that the widow is entitled for her life to a third part of the lands of which her husband was seised for an estate of inheritance at any time during the marriage. At the present day there are means provided1 which are almost universally adopted, of barring or defeating the

1 See 3 and 4 Will. IV, c. 105.

widow's claim. The general rule of law however remains the

same.

3

The history of the law of dower deserves a short notice, which may conveniently find a place here. It seems to be in outline as follows. Tacitus noticed the contrast of Teutonic custom and Roman law, in that it was not the wife who conferred a dowry on the husband, but the husband on the wife1. By early Teutonic custom, besides the bride-price, or price paid by the intending husband to the family of the bride 2, it seems to have been usual for the husband to make gifts of land or chattels to the bride herself. These appear to have taken two forms. In some cases the husband or his father 3 executed before marriage an instrument called 'libellum dotis,' specifying the nature and extent of the property to be given to the wife. Many forms of this instrument are preserved. The gift is sometimes made to the wife upon condition that if there is no issue of the marriage the property is to return to the heirs of the husband, sometimes the full property is vested in the wife. Another and apparently among the AngloSaxons a commoner form of dower is the 'morning-gift.' This was the gift which on the morning following the wedding the husband gave to the wife, and might consist either of land or chattels 5. It seems probable that in early times, if there was nothing in the form of gift to the contrary, the wife might, notwithstanding the marriage, alienate the property so given to her. This power of disposing of the dower, if it existed, had

1 Dotem non uxor marito, sed maritus uxori offert.' Tac. Germ. c. 18. Dos in the Roman sense was represented by the 'fader-fioh,' or gift by the father of the bride to the intending husband-the maritagium of the later law. See above, p. 90, note 4.

2 See Laws of Ethelbert, 77; Ine, 31; Edmund, 1-4; Thorpe, Anc. Laws and Inst., fol. ed., pp. 9, 53, 108.

3 Hence probably the species of dower called in later times ex assensu

patris.'

See Ducange, s. v. Dos.

5 Morgen-gifu-pretium virginitatis.

Kemble, Cod. Dipl. i. cx. By the Laws of Ethelbert (c. 81) it was pro

I