CHAPTER SEVEN.

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 amount of forethought on the part of a Crown tenant, setting his house in order against his decease, could rescue his widow from the extremely unfortunate position into which his death would necessarily plunge her. He must leave her without adequate protection against the tyranny of the king, who might inflict terrible hardships by a harsh use of rights vested in him for the safeguard of the feudal incidents due to the Crown as overlord. Newly deprived of her natural protector, she was under the immediate necessity of conducting a series of delicate negotiations with a powerful opponent fortified by prerogatives wide and vague. She might indeed, if deprived of her “estovers,” find herself for the moment in actual destitution, until she had made her bargain with the Crown; she had a right, indeed (under normal circumstances) to one-third of the lands of her late 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 to hers, and could seize everything by his prerogative of primer seisin.[414] This chapter provides a remedy. Widows shall have their rights without delay, without difficulty, and without payment.

Footnote 414:

Cf. _supra_, 78–9.

I. _The Widow’s Share of Real Estate._ Three words are used:—_dos_, _maritagium_, and _hereditas_.

(1) _Dower._ A wife’s dower is 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 adequate provision for his bride on the day he married her. Such a ceremony, indeed, formed a picturesque feature of the marriage rejoicings, taking place literally at the door of the church, as man and wife returned from the altar. The share of her husband’s land 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 by which they arranged the extent of the provision to be given and accepted. 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 on the husband’s part, and fixed the dower at one-third of all his lands.[415]

Footnote 415:

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.

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 (_in vita sua_) 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 of her husband to defeat or lessen her dower by alienations granted without her consent during the subsistence of the marriage.[416] Magna Carta contains no warrant for such a proposition, although a later clause (chapter 11) secures the dower lands from attachment by the husband’s creditors, whether Jews or others.

Footnote 416:

Pollock and Maitland, II. 419.

(2) _Maritagium._ It was customary for a land-owner to bestow some share of his property as a marriage portion upon his daughters, that they might not come to their husbands as empty-handed brides. The land so granted was usually relieved from all burdens of service and homage. It was hence known as _liberum maritagium_, which almost came to be recognized as a separate form of feudal tenure. Grants for this purpose could be made without the consent of the tenant’s expectant heirs, although early English law absolutely prohibited alienation of lands for any other purpose without their consent. _Maritagium_ was thus “a provision for a daughter—or perhaps some other near kinswoman—and her issue.”[417] The husband of the lady was, during the marriage, treated as virtual owner for all practical purposes; but on his death the widow had an indisputable title to lands brought with her “in free marriage.”[418]

Footnote 417:

See Pollock and Maitland, II. 15-16.

Footnote 418:

_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 specially “free”; the peculiar tenure came to an end; and the new owner was subject to all the usual burdens of an ordinary tenant.

The obvious meaning, however, has not always been appreciated. Coke[419] 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 their enemy, the king, not upon themselves; and it is opposed to the law of an earlier reign, as expounded by Bracton.[420]

Footnote 419:

_Second Institute_, p. 16.

Footnote 420:

See _supra_, p. 253.

Daines Barrington[421] invents an imaginary rule of law in order to explain a supposed exception. An ordinary widow, he declares, could not in the normal case marry again before the expiry of a year after her first husband’s death. Some widows, however, were specially privileged. _Maritagium_ was a right conferred on widows of land-owners to cut short the period of mourning imposed on others. This is a complete inversion of the truth; the possession of land always restricted, instead of extending, freedom of marriage. Several later authorities follow Barrington’s mistake.[422]

Footnote 421:

_Observations_, pp. 8-10.

Footnote 422:

_E.g._ Thomson, _Magna Charta_, 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.

Such mistakes when made by recent writers are the more inexcusable in view of the clear explanation given a century ago by John Reeves,[423] 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.[424]

Footnote 423:

See his _History of English Law_, I. 121 (3rd ed.).

Footnote 424:

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.

(3) _Hereditas._ The first two words are thus readily understood: but what is _hereditas_? Is it simply another name for one of these, or is it something different? It is possibly used to denote estates acquired by the wife, not as a marriage portion, but in any other way, for example by the opening of a succession on the death of someone, her father or other relative, of whom she is the heir.

II. _The Widow’s Share of Personal Estate._ The chapter of the Charter at present under discussion says nothing as to the widow’s right to any portion of her deceased husband’s goods and chattels. Chapter 26, however, confirms the existing law which secured to her, in the normal case, one third of her husband’s personal estate, as will be more fully explained hereafter.

III. _Provision for the Widow’s immediate Needs._ Many intricate questions might arise before it was possible to divide the land into aliquot portions and so “assign” the exact one-third due to her. Meanwhile, temporary provision must be made for her support. This was of two kinds: (1) _Quarantine._ Magna Carta confirmed her right to remain in the family home for a space of forty days. This was known to later lawyers as the widow’s quarantine.[425] The Charter of 1216 notes an exception to the general rule, on which John’s Charter is silent: if the deceased husband’s chief place of residence had been a castle, the widow could not stay there; feudal strongholds were not for women. In such cases, however, so the reissue of 1216 carefully provided, another residence must be immediately substituted. In later days, widows unlawfully deprived of their quarantine were provided with a remedy by means of a writ, known as “_de quarentina habenda_,” directing the sheriff to take summary procedure to do her right.[426]

Footnote 425:

The “unknown charter” (see Appendix) specified sixty days, but Magna Carta fixed the period at forty.

Footnote 426:

See Coke, _Second Institute_, p. 16.

(2) _Estovers of Common._ The widow required something more than the protection of a roof; for, until her dower lands had been delivered to her, no portion of the produce of her late husband’s manors could be strictly called her own. The estate was held “in common” between her and her husband’s heir (or between her and the “guardian” of that heir’s estates). 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 the widow of a Crown tenant in the right to _rationabile estoverium suum interim de communi_. Many explanations of the word _estovers_ (generally used in the plural) might be cited: from Dr. Johnson, who defines it broadly as “necessaries allowed by law,” to Dr. Stubbs, who narrows it to “firewood.”[427] It was the right to use certain parts of the natural produce of land or other property for the supply of one’s personal or domestic wants. Such rights varied in extent, however; from the general right to a full supply of all things necessary for the maintenance of life, down to the restricted right to take one kind of produce for one specific purpose only.[428]

Footnote 427:

See Glossary to _Select Charters_, p. 539: “firewood; originally provision or stuff generally.”

Footnote 428:

Several instances of the wider use of the word 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 until it was determined whether they were to become the king’s property by the conviction of the accused; meanwhile the imprisoned man and his family out of the revenue 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., to take the grantee bound to provide the grantor in estovers of meat or clothes. (“_A trouver estovers en vivre ou en vesture_”). Blackstone again (_Commentaries_, I. 441) applies the name _estovers_ to the alimony or allowance made to a divorced woman "for her support out of the husband’s estate." Sometimes, however, the word was used in a more restricted sense. Coke (_Second Institute_, p. 17) says, "when _estovers_ are restrained to woods, it signifieth housebote, hedgebote, and ploughbote,"—that is, such timber as was required 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 forests, viz., to take dead timber as firewood. (Cf. _infra_, c. 44.)

It seems natural to infer that in this passage of Magna Carta the word bears its wider signification. Such was Coke’s view,[429] 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.[430]

Footnote 429:

_Second Institute_, p. 17.

Footnote 430:

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.