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
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]
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Footnote 419:
_Second Institute_, p. 16.
Footnote 420:
See _supra_, p. 253.
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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]
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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.
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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]
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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.
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(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.
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