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 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.
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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.
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Footnote 416:
Pollock and Maitland, II. 419.
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(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]
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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.
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Public-domain text, read in full here on John Shaqi.
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