ceased in Glanvill's time1. By the law as stated by Glanvill the man was bound to endow the woman tempore desponsationis ad ostium ecclesiae2. The dower might be specified or not. If not specified, it was the third part of the freehold which the husband possessed at the time of betrothal. If more than a third part was named, the dower was after the husband's death cut down to a third. A gift of less would however be a satisfaction of dower. It was sometimes permitted to increase the dower when the freehold available at the time of betrothal was small, by giving the wife a third part or less of subsequent acquisitions. This however must have been expressly granted at the time of betrothal. A woman could never claim more than had been granted ad ostium ecclesiae. Dower too might be granted to a woman out of chattels personal, and in this case she would be entitled to a third part3. In process of time however this species of dower ceased to be regarded as legal, and was expressly denied to be law in the time of Henry IV. A trace of it still remains in the expression in the marriage service, 'With all my worldly goods I thee endow.'

The proper remedy from the time of Glanvill, if the widow was wrongfully kept out of her dower, was by the real actions called the writ of right of dower, writ of dower, and of dower unde nihil habet; the last was only applicable when the widow was kept out of the whole of her dower. The first was applicable when she was deprived of part, and the second in all other cases. These forms of real actions were reserved in the statute by which most kinds of real actions were abolished, but have long fallen into disuse ".

vided that the morgen-gifu should devolve on the wife's paternal kindred if there were no issue of the marriage.

1 Lib. vi. c. 3.

2 Tenetur quisque tam jure ecclesiastico quam jure seculari sponsam suam dotare tempore desponsationis.' Glanvill, lib. vi. c. 1.

. Ib. c. 2.

4 Blackstone, ii. p. 134.

MAGNA CARTA (ed. 1215), c. vii. Vidua post mortem mariti sui statim et sine difficultate aliqua habeat maritagium1, et haereditatem suam, nec aliquid det pro dote sua, vel pro maritagio suo, vel haereditate sua quam haereditatem maritus suus et ipsa tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per quadraginta dies 2 post mortem ipsius infra quos assignetur ei dos sua.

In the charter of 1216 are added the words,-nisi prius ei dos fuerit assignata, vel nisi domus illa sit castrum, et si de castro recesserit, statim provideatur ei domus competens in qua possit honeste morari quousque dos sua ei assignetur secundum quod praedictum est.

And in the edition of 1217 there is the further addition,— Assignetur autem ei pro dote sua tertia pars totius terrae mariti sui quae sua fuit in vita sua, nisi de minori dotata fuerit ad ostium ecclesiae.

3

c. viii. 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.

TRANSLATION.

c. vii. A widow, after the death of her husband, incontinent, and without any difficulty, shall have her marriage, and her inheritance, and shall give nothing for her dower, her marriage, or her inheritance, which her husband and she held the day of the death of her husband; and she shall tarry in the chief house of her husband by forty days after the death of her husband, within which days her dower shall be assigned her, if it were not assigned her before; or that the house be a castle, and if she depart from the castle, then a competent house shall be provided

1 i.e. her estate in frank-marriage (see above, p. 90, n. 4). 2 Called the widow's quarantine.' Blackstone, ii. p. 135.

It seems to have been the practice for the lord to exact a fine on his female tenant's marriage, and sometimes to compel or distrain a widow to marry again in order to get the fine. See above, pp. 42, n. 4, 84.

4 See note I.

for her in the which she may honestly dwell, until her dower be to her assigned, as it is aforesaid; and she shall have in the meantime her reasonable estovers of the common; and for her dower shall be assigned unto her the third part of all the lands of her husband which were his during coverture, except she were endowed of less at the church door.

c. viii. No widow shall be distrained to marry herself, nevertheless she shall find surety that she shall not marry without our licence and assent, if she hold of us, nor without the assent of the lord, if she hold of another.

$5. Scutage and Aids.

During the Norman period a practice arose of making a composition in money for actual military service. This was called scutage or escuage1. Madox2 finds traces of this practice as early as the reign of Henry I. It became very common in the reigns of Henry II, Richard I, and John. In the Dialogus de Scaccario (Henry II) scutagium is thus described: Fit interdum, ut imminente vel insurgente in regnum hostium machinatione decernat rex de singulis feodis militum summam aliquam solvi, marcam scilicet vel libram unam, unde militibus stipendia vel donativa succedant. Mavult enim princeps stipendiarios quam domesticos bellicis opponere casibus. Haec itaque summa, quia nomine scutorum solvitur, scutagium nuncupatur

Every tenant in capite or immediate tenant of the Crown was bound either to supply the king with as many knights as he held knights' fees of the Crown, or to render an equivalent in money, the assessment of which must have been more or less arbitrary before this provision of Magna Carta. The fact of the tenant in capite doing personal service in the king's army, or

1 The definite origin of scutage is assigned to the occasion of the expedition of Henry II to Toulouse in 1159. See Stubbs, Const. Hist. i. p. 456. 2 Hist. Exch, ch. 16.

8 Stubbs, Select Charters, p. 192.

paying or being duly charged with his escuage to the king, entitled him in his turn to escuage from his under-tenants by knight-service. Sometimes the amount so payable was fixed or ascertained in the charter of feoffment. But in many cases the uncertainty of the amount must have been felt as a great grievance, and hence the importance of this provision of Magna Carta. The significance of this chapter in its bearing on Constitutional History does not concern us here.

In the reissues of the Charter in the reign of Henry III the following articles were omitted. They were however revived by the Statute called 'Confirmatio Cartarum' (25 Edward I). The Statute of Westminster I (3 Edward I, c. 36) ascertained the amount of aids to be taken by mesne lords, and the Statute 25 Edward III, ch. 5, c. 11, fixed those to be taken by the king1.

3

MAGNA CARTA (ed. 1215), c. xii. Nullum scutagium 2 vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum militem faciendum, et ad filiam nostram primogenitam semel maritandam, et ad haec non fiat nisi rationabile auxilium: simili modo fiat de auxiliis de civitate Londoniarum.

C. XV. Nos non concedemus de cetero alicui quod capiat auxilium de liberis hominibus suis, nisi ad corpus suum redimendum, et ad faciendum primogenitum filium suum militem, et ad primogenitam filiam suam semel maritandam, et ad haec non fiat nisi rationabile auxilium.

The text and translation of the statute 25 Ed. I. c. 64 is as follows:

1 Blackstone, ii. p. 65. See further as to scutage, below, § II.

2 Scutagium is properly distinguished from auxilium: sometimes however the word is used in a large sense, as equivalent to any payment assessed on a knight's fee, and so including aids.

3 See above, pp. 41, 80.

This is printed as a Statute in 'Statutes at Large.' In Statutes of the

E. ausi avums graunte pur nous e pur nos heyrs as Arcevesques, Evesques, Abbes, e Priours, e as autre gentz de seint eglise, e as Countes e Barouns, e a toute la communaute de la terre, qe mes pur nule busoigne tieu manere des aydes, mises, ne prises, de nostre Roiaume ne prendrums, fors ke par commun assent de tout le Roiaume, e a commun profist de meisme le Roiaume, sauve les auncienes aydes e prises, dues e acoustumees.

Moreover we have granted for us and our heirs, as well to Archbishops, Bishops, Abbots, Priors, and other folk of holy church, as also to Earls, Barons, and to all the communalty of the land, that for no business from henceforth we shall take such manner of aids, tasks, nor prises, but by the common assent of the Realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed.

§ 6. Forfeiture1.

MAGNA CARTA (1215), c. xxxii. Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi per unum annum et unum diem, et tunc reddantur terrae dominis feodorum.

TRANSLATION.

c. xxxii. We will not hold the lands of them that be convict of felony but one year and one day, and then those lands shall be delivered to the lord of the fee.

§ 7. Alienation a.

MAGNA CARTA (1217), c. xxxix. Nullus liber homo de cetero det amplius alicui vel vendat de terra sua quam ut de residuo terrae suae possit sufficienter fieri domino feodi servitium ei debitum quod pertinet ad feodum illud.

Realm it is included in the collection of Charters, vol. i. p. 37. The text is taken from the former, the translation from the latter; and see Coke's 2nd Inst. 529.

1 See above, p. 85.

2 For the meaning of this enactment and the history of the law of alienation, see below, § 14, and Chap. IV. § 5.