Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
See Petition of Barons (_Sel. Charters_, 383). Gradually the
conception of disparagement was expanded, partly from the natural
development of legal principles and partly from the increased power
the nobility obtained of enforcing their own definitions upon the
king. Coke commenting on Littleton (Section 107) mentions four kinds
of disparagements: (1) _propter vitium animi_, _e.g._ lunatics and
others of unsound mind; (2) _propter vitium sanguinis_, villeins,
burgesses, sons of attainted persons, bastards, aliens, or children of
aliens; (3) _propter vitium corporis_, as those who had lost a limb or
were diseased or impotent; and (4) _propter jacturam privilegii_, or
such a marriage as would involve loss of “benefit of clergy.” The last
clause had no possible connection with the law as it stood in the
thirteenth century, but was founded on the fact that marriage with a
widow or widower was deemed by the Church in later days an act of
bigamy, and therefore involved loss of the benefit of clergy, until
this was remedied by the Statute 1 Edward VI. c. 12 (sect. 16).
Was it in the power of the far-seeing father of a prospective heiress by
marrying her during his own life-time to render nugatory the Crown’s
right to nominate a husband? Not entirely; for the Charter of Henry I.
(even when renouncing the more oppressive practice of Rufus) reserved
the king’s right to be consulted by the barons before they bestowed the
hand of female relations in marriage. Magna Carta is silent on the
point, and the presumption is that the existing law was to be
maintained.
Bracton[412] explains that law:—No woman with an inheritance could marry
without the chief lord’s consent, under pain of losing such inheritance;
yet the lord when asked was bound to grant consent, if he failed to show
good reasons to the contrary; he could not, however, be compelled to
accept homage from an enemy or other unsuitable tenant. The Crown’s
rights in such matters were apparently the same as those of any mesne
lord.[413]
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Footnote 412:
II. _folio_ 88.
Footnote 413:
For further information on the age at which marriage could be tendered
to a ward, and the penalties for refusing, see Thomson, _Magna
Charta_, pp. 170-1.
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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.
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