Academic journal article The William and Mary Bill of Rights Journal

Interpretation and Re-Interpretation of a Clause: Magna Carta and the Widow's Quarantine

Academic journal article The William and Mary Bill of Rights Journal

Interpretation and Re-Interpretation of a Clause: Magna Carta and the Widow's Quarantine

Article excerpt

Looking in pre-modern English legal records for examples of the widow's quarantine and the writ de quarantina habenda1 that protected it is a little like looking for the abominable snowman; many people swear it exists, although no one has seen it for certain. But in the case of the elusive action, there are just enough sightings to enable one to say positively that it was there. Over the centuries, quarantine did leave a trail. This Paper follows it on two sides of an ocean, because quarantine provides a rather good example of how a provision of Magna Carta was understood or interpreted by courts-and societies-with differing attitudes to land, heirs, and women.

The widow's quarantine of course has nothing to do with disease; it was designed for the protection of the woman who had just lost her husband and who faced imminent eviction from her home by an unsympathetic heir or lord. The author of the treatise called Britton described the situation with brutal reality: "[I]t is improper that such wives should be thrust out of doors with their husbands' bodies, without having a place to lodge in . . . ."2 The remedy for that had its inception in Magna Carta and, unlike the provisions in the same chapter guaranteeing dower and maritagium and inheritance, here a new right is set out; the Charter of 1225 Chapter 7 reads:

[A]nd let her remain in the chief messuage of her said husband for forty days after the death of her said husband, within which [time] her dower shall be assigned to her, unless it shall have been first assigned, or unless that house is a castle; and if she shall leave the castle, immediately let there be provided for her a suitable house in which she is able to live properly until her dower is assigned to her according to what has been said; and in the meantime let her have her reasonable estovers of common [de communi].3

That is her right of quarantine. The penalty for its violation was set out in 1236, in the first chapter of the Statute of Merton: a widow who could not have dower or quarantine without plea and who succeeded in her suit was to have damages to the value of her dower from the time of the husband's death to the date she recovered it.4 The language is obviously primarily concerned with dower and somewhat less useful to the woman who just wanted to get back into a house.

The suit to achieve that was eventually the action brought by the writ de quarantina habenda. It is not in the earliest Registers of Writs and in only one of those I have seen from the earlier fourteenth century, but it appears in some, not all, in the fifteenth century and it is in the printed Registers.5 Its wording recites the language of Magna Carta although there is no mention of a substitute house and, significantly, the phrase on estovers reads not "de communi" but "de bonis eorundem" of their goods, as if to dispel any misunderstanding of "common."6 It goes on to recite that immediately after the husband's death the defendant forcibly ejected the plaintiff woman from the chief messuage which was not a castle, nor was her dower assigned, nor did he allow her to take possession [percipere] of estovers, to her serious and not small damage and against the tenor of the aforesaid charter. The sheriff to whom the writ is addressed is ordered to call the parties before him, hear their accounts [rationibus] there and then, and do the said widow full and swift justice according to the tenets of the said charter.7

The statute seems quite clear, but the implementation of it was not. The wording of the writ is open to interpretation: What conditions had to be met before a woman could claim quarantine? What might she do to lose it? What is a chief messuage? What is a castle? What is a house in which the widow can live decently?8 What does estovers cover? Some of the questions had definite answers. First, since quarantine is based on dower, the basic requirements for dower had to be met: a woman had to have been lawfully married to the deceased and he, in turn, had to have been seised of property with which to endow her. …

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