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CHAPTER SEVEN. - 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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Vidua post mortem mariti sui statim et sine difficultate habeat maritagium et hereditatem suam, nec aliquid det pro dote sua, vel pro maritagio suo, vel hereditate sua quam hereditatem maritus suus et ipsa tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per quadraginta dies post mortem ipsius, infra quos assignetur ei dos sua.
A widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband; and she may remain in the house of her husband for forty days after his death, within which time her dower shall be assigned to her.
No forethought of a Crown tenant, setting his house in order, could rescue his widow from the unfortunate position into which his death would plunge her. He must leave her without adequate protection against the tyranny of the King, who might inflict terrible hardships by harsh use of rights vested in him for the safeguard of his feudal incidents. She might, if deprived of her “estovers,” find herself in actual destitution, until she had made her bargain with the Crown. She had a right, indeed, to one–third of the lands of her husband (her dos rationalis) in addition to any lands she might have brought as a marriage portion; but she could only enter into possession by permission of the King, who had prior claims and could seize everything by his prerogative of primer seisin.1 This chapter provides a remedy. Widows shall have their rights without delay, without difficulty, and without payment.
The Widow’s Share of Real Estate.
Three words are used:—dos, maritagium, and hereditas.
A wife’s dower is here the portion of her husband’s lands set aside to support her in her widowhood. It was customary from an early date for a bridegroom to make provision for his bride on the day he married her. The ceremony formed a picturesque feature of the marriage rejoicings, taking place literally at the church door, as man and wife returned from the altar. The share thus set apart for the young wife was known as her dos (or dowry), and would support her if her husband died. In theory, the transaction between the spouses partook of the nature of a contract. The wife’s rôle, however, was a passive one: her concurrence was assumed. Yet, if no provision was made at all, the law stepped in, on the presumption that the omission had been unintentional, and fixed the dower at one–third of all his lands.1
John’s Magna Carta contents itself with the brief enactment “that a widow shall have her dower.” The Charter of 1217 goes farther, containing an exact statement of the law as it then stood:—“The widow shall have assigned to her for her dower the third part of all her husband’s land which he had in his lifetime unless a smaller share had been given her at the door of the church.” Lawyers of a later age have, by a strained construction of the words in vita sua, made them an absolute protection to a wife against all attempts to lessen her dower by alienations granted without her consent during the marriage.2 Magna Carta contains no warrant for such a proposition, although a later clause (chapter 11) secures dower lands from attachment by the husband’s creditors, Jews or others.
It was customary for a land–owner to bestow marriage portions on his daughters. Land so granted was usually relieved from burdens of service and homage. It was hence known as “frank–marriage” (liberum maritagium), which almost came to be recognized as a separate form of feudal tenure. Such grants could be made without the consent of the tenant’s expectant heirs. Maritagium was thus “a provision for a daughter—or perhaps some other near kinswoman—and her issue.”1 The husband was, during the marriage, treated as virtual owner; but, on his death, the widow had an indisputable title.
The obvious meaning, however, has not always been appreciated. Coke2 reads the clause as allowing to widows of under–tenants a right denied (by chapter 8) to widows of Crown tenants—namely “freedom to marry where they will without any licence or assent of their lords.” This interpretation is inherently improbable, since the barons at Runnymede desired to place restrictions on the King, not upon themselves; and it is opposed to the law as expounded by Bracton.3
Daines Barrington4 invents an imaginary rule of law in order to explain a supposed exception. An ordinary widow, he declares, could not marry again within a year of her husband’s death, but widows of landowners were privileged to cut short this period of mourning. “Maritagium” is thus interpreted as a landowning widow’s right of speedily entering on second nuptials. This is a complete inversion of the truth; the possession of land really restricted freedom of marriage. Yet several later authorities follow Barrington’s mistake.5 This is the more inexcusable in view of the clear explanation given a century ago by John Reeves,6 who distinguished between two kinds of marriage portion: liberum maritagium, whence no service whatever was exigible for three generations, and maritagium servitio obnoxium, liable to the usual services from the first, although exempt from homage until after the death of the third heir.1
Is the third item here mentioned simply another name for either dos or maritagium? Or, is it something different? It is possible that “the inheritance which her husband and she held on the day of the death of that husband” denotes lands that had come to the lady as heiress on the decease of relations, not as a gift at her marriage. Such lands might be described as held by both spouses; for a husband might even attend Parliament as a baron on the strength of his wife’s barony.
The Widow’s Share of Personal Estate.
The present chapter says nothing of the widow’s “peculiar” or share of her deceased husband’s money and chattels; but chapter 26 secured to her the portion of one third allowed her by the existing law.
Provision for the Widow’s immediate Needs.
Intricate questions might arise before the land was divided into aliquot portions. Meanwhile, temporary provision must be made for her support. This was of two kinds:
Magna Carta confirmed her right to the family home for forty days, known to later lawyers as the widow’s quarantine. The charter of 1216 notes an exception, on which John’s Charter is silent: if the husband’s place of residence had been a castle, the widow could not stay there; feudal strongholds were not for women. In such cases another residence must be substituted. In later days, widows were provided with a writ, “de quarentina habenda,” directing the sheriff to do her right.2
Estovers of Common.
The widow required more than the protection of a roof; until her dower lands had been assigned to her, no portion of the produce of her husband’s manors could be strictly called her own. The estate was held “in common” between her and her husband’s heir. It was only fair that, until her rights were ascertained, she should be allowed a reasonable share of the produce. Neither John’s Charter nor the first issue of Henry III. said anything on this head. The reissue of 1217 supplied the omission, expressly confirming her right to rationabile estoverium suum interim de communi. Many explanations of the word estovers might be cited: from Dr. Johnson, who defines it broadly as “necessaries allowed by law,” to Dr. Stubbs, who narrows it to ”firewood.”1 It was the right to supply one’s personal or domestic wants: this varied in extent from full supply of all things necessary for the maintenance of life, down to a right to take one kind of produce for one specific purpose only.2
In this passage the word bears its wider signification. Such was Coke’s view,3 who held that it implied the widow’s right to “sustenance” of every kind, including the right to kill such oxen on the manor as she required for food. Estovers “of common” should thus be read as extending the widow’s right of consumption for her own and her household’s use over every form of produce held “in common” by her and the heir’s guardian prior to a final division.4 She could not, however, cut down trees.
[1 ]Cf. supra, 63–5.
[1 ]See Pollock and Maitland, II. 422–3. The ceremony at the church door, when resorted to, was no longer an opportunity of giving material proof of affection to a bride, but a means of cheating her out of what the law considered her legitimate provision, by substituting something of less value.
[2 ]Pollock and Maitland, II. 419.
[1 ]See Pollock and Maitland, II. 15, 16. Liberum maritagium, considered as a tenure, has various peculiarities. The lady’s husband became the feudal tenant of her father. The issue of the marriage were heirs to the lands and would hold them as tenants of the heir of the donor. For three generations, however, neither service nor homage was due. After the third transmission, the land ceased to be “free”; the peculiar tenure came to an end; the new owner was subject to all the usual burdens.
[2 ]Second Institute, p. 16.
[3 ]See supra, p. 214.
[4 ]Observations, pp. 8–10.
[5 ]E.g. Thomson, Magna Carta, p. 172. Dr. Stubbs has his own reading of maritagium, namely, “the right of bestowing in marriage a feudal dependant.” See Glossary to Sel. Charters, p. 545. The word may sometimes bear this meaning, but not in Magna Carta.
[6 ]See his History of English Law, I. 121 (3rd ed.).
[1 ]Cf. Ibid., I. 242, where Reeves rightly points out that Coke is mistaken, although he fails to notice the distinction drawn, in the passage criticized, between the Crown and mesne lords.
[2 ]See Coke, Second Institute, p. 16.
[1 ]See Glossary to Select Charters, p. 539: “firewood; originally provision or stuff generally.”
[2 ]Several instances of the wider use may be given. Bracton (III. folio 137) explains that, pending the trial of a man accused of felony, his lands and chattels were set aside by the sheriff; meanwhile the imprisoned man and his family received “reasonable estovers.” (Cf. infra, c. 32.) The Statute of Gloucester (6 Edward I. c. 4) mentions incidentally one method of stipulating for a return from property alienated, viz., estovers of meat or clothes. Blackstone, again (Commentaries, I. 441), applies the name estovers to the alimony made to a divorced woman “for her support out of the husband’s estate.” Sometimes the word was more restricted. Coke (Second Institute, p. 17) says, “when estovers are restrained to woods, it signifieth housebote, hedgebote, and ploughbote,”—that is, timber for repairing houses, hedges, and ploughs. Apparently it had an even more restricted scope when used to describe the right of those who dwelt in the King’s forest, viz., to take dead timber as firewood. (Cf. infra, c. 44.)
[3 ]Second Institute, p. 17.
[4 ]There seems no reason to restrict her estovers to a right over “commons,” in the sense of pastures and woods held “in common” by her late husband and the villeins of his manor. Some such meaning, indeed, attaches to the phrase “dower of estovers” met with in later reigns, e.g. in Year Book of 2 Edward II. (Selden Society), p. 58, where it was held that such a right (claimed as a permanent part of dower) did not belong to a widow.