Wardship and property right in the British Isles, 1485-1747

Research Project

Beginning with the accession of Henry VII (r. 1485-1509), the monarchy and its administrators instigated a prolonged drive to revive and monetise the English Crown’s traditional feudal rights. Chief among these was ‘prerogative wardship’, the right of the Crown to manage estates held under feudal tenures which had descended to a legal minor (the ward), and to take physical custody of the ward as well. Part of the project is concerned with examining the fiscal-legal development of wardship in England, starting in 1485, through to the erection of a ‘Court of Wards’ in 1540, and finishing with the abolition of the Court in 1660 – an event described by William Blackstone as ‘a greater acquisition to the civil property of this kingdom than even Magna Carta’. The project is especially concerned with determining the incidence of wardship, how wardship was administered, and whether the Court enabled the Crown and its officers to act arbitrarily or whether it was restrained at all by the common law and/or other institutions.

The project though, is also concerned with examining the transfusion of the law and institutions of wardship into Ireland and Scotland. In both instances, this began in around the twelfth-century, although whereas in Ireland it was imposed by the incoming English, in Scotland it was imported. Consequently, it appears that wardship had its own pattern of development in both countries. In Ireland, it became an agent of English dominance, chiefly used as a tool of forcible religious conversion: the custody of Catholic wards was sold on to Protestant guardians ‘chiefly for the[ir] education … in the Protestant religion’. In Scotland, by contrast, wardship appears to have been a more socially pervasive institution; ‘mesne wardship’, that is wardship of tenants to feudal lords other than the King, survived into the eighteenth-century, only being abolished in 1747. We know vanishingly little, though, about the legal-social structures by which wardship existed in Scotland and the project is partly intended to fill this gap.

Finally, the project will also incorporate India. Beginning in the 1790s, the East India Company started to erect and maintain its own Court of Wards in areas under its direct jurisdiction. Ostensibly, its function was very similar to that of the original court, although we know very little about how it operated in practice. For example, did the legal standards that had prevailed in England need to be re-worked for what was a very different context from the one where they had first been developed? Was the court perceived to be ‘legitimate’, or was it perceived as an instrument of subjugation, as had occurred in Ireland?