CHAPTER FIVE.

Custos autem, quamdiu custodiam terre habuerit, sustentet domos, parcos, vivaria, stagna, molendina, et cetera ad terram illam pertinencia, de exitibus terre ejusdem; et reddat heredi, cum ad plenam etatem pervenerit, terram suam totam instauratam de carrucis et waynagiis, secundum quod tempus waynagii exiget et exitus terre racionabiliter poterunt sustinere.

The guardian, moreover, so long as he has the wardship of the land, shall keep up the houses, parks, places for live-stock,[397] fishponds, mills, and other things pertaining to the land, out of the issues of the same land; and he shall restore to the heir, when he has come to full age, all his land, stocked with ploughs and implements of husbandry, according as the season of husbandry shall require, and the issues of the land can reasonably bear.

Footnote 397:

_Vivarium_ in strictness means a place for keeping live-stock, but probably included the animals also. By Coke, in the _Statutes at large_, and elsewhere, it is translated “warren”; but that word has its Latin form in _warrena_. Stubbs’ Glossary to _Select Charters_ (p. 551) renders it as “a fish pond,” but _stagnum_ has that meaning. The Statute Westminster II. (c. 47) speaks of _stagnum molendinæ_ (a mill-pond). The Statute of Merton (c. 11) refers to poachers taken _in parcis et vivariis_; while Westminster I. (c. 1) forbids _ne courge en autri parks, ne pesche en autri vivers_, which suggests a change of connotation. Cf. _ibid._, c. 20.

These stipulations form the complement, on the positive side, of the purely negative provisions of chapter 4. It was not sufficient to prohibit acts of waste; the guardian must see that the estates were kept in good repair.

I. _The Obligations of the Warden of a Lay-fief._ It was the duty of every custodian to preserve the lands from neglect, together with all houses, “parks” (a term explained under chapter 47), fishponds, mills, and the other usual items of the equipment of a medieval manor. All outlays required for these purposes formed, in modern language, a first charge on the revenues of the estate, to be deducted before the balance was appropriated by the “grantee,” or paid to the exchequer by the “committee.” It was the guardian’s duty, moreover, to restore the whole to the heir in as good condition as the produce of the land might reasonably permit. Henry’s Charters directed that the guardian should redeliver the land stocked with ploughs “and with all other appointments in at least as good condition as he received it.”[398]

Footnote 398:

Blackstone, _Great Charter_, lxxviii. considers this “an indulgence to guardians, by only directing them to deliver up the land ... in as good condition as they found it, not in as good as it would bear.” Sometimes, the heir after coming of age, could not recover his lands at all. The Statute of Marlborough (c. 16) gave such a ward a right to a _mort d’ancestor_ (cf. _infra_, p. 325) against a mesne lord, but apparently not against the Crown. The Statute of Westminster I. (c. 48) narrates that heirs were often carried off bodily to prevent them raising actions against their guardians.

Magna Carta did not attempt to abolish wardship, which continued in full force for many centuries, with only a few of its worst abuses somewhat curtailed. The whole subject was regulated in 1549 by the Statute 32 Henry VIII. c. 46, which instituted the Court of Wards and Liveries, the expensive and dilatory procedure of which caused increasing discontent, until an order of both Houses of Parliament, dated 24th February, 1646, abolished it along with “all wardships, liveries, _primer seisins_, and _ouster les mains_.”[399] This ordinance was confirmed at the Restoration by the Statute 12 Charles II. c. 24.

Footnote 399:

See S. R. Gardiner, _Documents_, p. 207.

II. _Wardships over Vacant Sees._ The church had its own grievances, although these took a different form. The Constitutions of Clarendon[400] had stipulated that each great prelate should hold his Crown lands _sicut baroniam_; and this view ultimately prevailed. It followed that all appropriate feudal burdens affected church fiefs equally with lay fiefs. The lands which formed the temporalities of a see were, however, in a peculiar position, being the property, not of an individual, but of an undying corporation (to use the definite language of a later age). When one bishop or abbot died, a successor of suitable age and worth had at once to be appointed. A minority was thus impossible, and therefore, so it might be argued, wardships could never arise. Rufus objected to what he thought an unfair exemption from a recognized feudal incident. Flambard devised an ingenious substitute for ordinary wardships by keeping sees long vacant, and meantime taking the lands under the guardianship of the Crown. Such practices formed the original ground of quarrel between Anselm and Rufus. Henry I., while renouncing by his Charter all pretensions to exact reliefs, retained his right of wardship, promising merely that vacant sees should neither be sold nor farmed out. Stephen went further, renouncing expressly all wardships over church lands; but Henry II. ignored this concession, and reverted to the practice of his grandfather. In his reign the wardship of the rich properties of vacant sees formed a valuable asset of the exchequer. During a vacancy the Crown drew not only the rents and issues of the soil, but also the various feudal payments which the under-tenants would otherwise have paid to the bishop. The Pipe Roll of 14 Henry II.[401] records sums of £30 and £20 paid into the exchequer by two tenants of the vacant see of Lincoln for six and four knight’s fees respectively.[402]

Footnote 400:

Article 11: see _Select Charters_, 139.

Footnote 401:

Cited by the editors of the _Dialogus_, p. 223.

Footnote 402:

Cf. under c. 43 _infra_.

The practice of Henry of Anjou was followed by his sons. John was careful specially to reserve wardships over vacant sees even in that very accommodating charter, dated 21st November, 1214, which surrendered the right of canonical election to the national church. Stephen Langton had either failed to force John to relinquish wardships or else considered such a concession unnecessary now that the king renounced his right to veto church appointments, since wardships over church lands would become unprofitable if elections were never unduly delayed. Whatever the reason, the charter of 1214 did nothing to guard against the abuse of wardships over church lands, and John’s Great Charter was equally silent.[403] The omission was supplied in 1216, when it was directed that the provisions already made applicable to lay fiefs should extend also to vacant sees, with the added proviso that church wardships should never be sold. The charter of Henry III. thus reverted to the exact position defined by the charter of Henry I. The lands of vacant sees might be placed under a “committee,” but never given to a “grantee,” to use Coke’s terms.

Footnote 403:

C. 46 (see _infra_) confirmed _barons_, who had founded abbeys, in their rights of wardship over them during vacancies.

These provisions were further supplemented by later acts. An Act of 14 Edward III. (stat. 4, cc. 4 and 5) gave to the dean and chapter of a vacant see a right to the pre-emption of the wardship at a fair price. If they failed to exercise this, the king’s right to appoint escheators or other keepers was confirmed, but under strict rules as to waste. This is a distinct confirmation of the king’s right to “commit” church lands, although the prohibitions against selling them or farming them out remained still in force.