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 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.)
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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]
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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.
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CHAPTER EIGHT.
Nulla vidua distringatur ad se maritandum dum voluerit vivere sine
marito; ita tamen quod securitatem faciat quod se non maritabit sine
assensu nostro, si de nobis tenuerit, vel sine assensu domini sui de quo
tenuerit, si de alio tenuerit.
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