garde at the age of 14. yeares THe principall reason that mooved our law founders so soone to set women out of ward is none other then hath béene already declared she is quickly able domui preesse viro subesse and her husband for her shall doe Knights service or some other for him and in his stead the cases are therefore 26 H. 8. fo 2 If the Kings tenant in chiefe having feoffees to his use marry his daughter vnder age to a man of full age and dye this daughter being heire is out of ward for her body though not for her land for that shal be in ward in this case an the Kings possession must bee voided by suite and livery But had she béene of full age of 14. yeares at her fathers death no such thing had néeded neither should she have bin in ward nor the King have any primer seisin For that was not as yet seene into by the Statutes of H. 7. which had given ward reliefe and herriots upon the death of him which died intestate and seised of onely a bare use againe if the King have a woman ward which he marrieth before she be 14 she shal be be to all intents out of ward at 14. and may immediatly sue her livery 28. H. 8. for as a ward masculine married by his Lord vnder 21. shal be sui luris at 21. so shall a ward feminine being maried before 14. bee out of ward at 14. altogether In the old Natura brevium in the writ de electione custodiae it is said that where the tenant marieth his daughter being under age to a man of ful age dieth the daughter shal be out of ward But if he mary his daughter being of full age to a man under age and die she shall be in ward This Mr. Brooke taketh to be no law even so doe I his reason is that no Lord can have the marriage of her that is already married or compell any heire to be twice married For if a tenant marry his son and die and then the sonnes wife dieth holden the Lord shall not have his body in ward to marry him Which is cleare specially if the sonne were infra annos nubiles at the time of his fathers death But certainely if the Lord couple his ward to a wife which dieth the ward is at full liberty for his body and shall not be married by his Lord. The reason why an heire female of full age married by her father to a man under age should not be out of ward must be because the supposition of law faileth her husband is not able arma portare officiis fungi militaribus vel pro iisdem faciendis cum alio pacisci But this notwithstanding me thinketh a woman married should bee out of ward for all her husbands nonage thought the woman bee but twelve yeares old a boy knight shall be out of ward for his body shall a woman innupta matura viro be in kéeping of any but her husband shall shee at 14. yeares age bee ward because she hath a husband but 19. yeare olds who should not have béene in ward had she had no husband at al non videtur The husbands ability to doe souldiers service is neither the onely nor the principall cause in mine opinion why a woman is by law out of ward at 14. yeares age But law going with the trace or tide of nature that hath made women as Bracton saith fit to carry cey and key cloge betimes suffereth them to mary very early And it should be a mischievous inconvenient unjust and unnatural law that should hold a woman from her husband or from her inheritance which is without offence of law maried fully able to bring forth children because her husband is not fully fit for all mannor of horsemanship Be not therefore good woman absterred from a young husband by old natura brevium SECT XII How a woman that hath beene in ward shall come by her land A Woman past 14. yeares of age at her ancestors death shall not be in ward And where she is in ward till 16. she may have action at 16. against her Lord for her inheritance according to the Statute By Littleton she may enter which standeth with reason for the Statute giving action to her affirmatiuely doth not disaffirme the entrie which she might have had by the auncient catholicke Common law if shee cannot or dare not enter she may have alone if she be alone or with her fellowes if she be a coheire a writ of mortdancester as well against her Lord as against any other abator Marlbridg ca. 16. But if shee be ward to the King against whom a mortdancestor writ of Aile Besaile or Cosinage then it melts into petition and she must sue for livery And where the King hath a woman in ward with some lands holden of other Lords in socage such a ward shall not so soone as shee is 14. yeare old have livery of that socage lands but she must arry unlesse she be married in the meane while till she be 16. because livery must be at once parcell not by percels Yet if 3. copartners be in ward to the King she which first commeth to age shall sue her livery and have partition vpon it SECT XIII Of Parceners FOr it must not be omitted there where a man dieth seised of any manner of inheritance having issue none but daughters to whom such inheritance descendeth when they have entered by Litt. they are parceners one heire to their common ancestor so are the heires of females parceners and they ought to come in by descent for if by purchase they are jointenants they are called partners saith he because they are compellable by a writ de partitione facienda to divide the inheritance amongst them Like or the same law is where a man dying seised having no issue his land goeth to his sisters or aunts that are partners if one of them dye before partition made her part shall descend to her issue and for want of issue to her coheires which shal be déemed and adjudged in by discent and not by survivour SECT XIII Difference betweene partners and jointenants FOr although partners have a conjoyned estate yet law maketh a great diversity betwixt them and jointenants Partners by the cōmon law are onely females or the heirs of females which also must be in by descents for if sisters makeajoint purchase they are jointnants and not partners Betwixt whom observe here the germaine apparent difference If two coparceners be of lands in fee simple wherof one before partition made chargeth her part with a rent dieth without issue her coparcener taking as heire and by discent shall hold the land charged But it is otherwise betwixt jointenants Also partners may devise and give away their part by testament so cannot jointenants SECT XV. Difference betweene partners and tenants in common ANd as in the cases precedent parteners are like tenants in
seised 20. Hâ—â— â— The Statute oâ— Moâ—â—on cap. 1. ordeineth concernâ—ng widdowes qâ—â— post moâ—tem vâ—â—oâ—â—â— expeâ—luntur de dotibus suis dores sâ—os vel quaâ—â—â—â—enam habere non possâ—nâ—â—iâ—e placito That whosoeuer shall dâ—force them of Dower â—r â—â—arâ—ntino in any tenemâ—nts whereof their husbands dyed seised if they bee conuiâ—ted de iniâ—â—â—o dâ—forciâ—meâ—to they shall râ—nder dammages to the widdowes so much as the Dower should haue bâ—â—ne worth to them from the time of the husbands death till the day where the widdowes recouer seisen of Dower pâ—r â—udicium Curâ—e And the Deâ—orcers shall â—eâ— in â—iseâ—icordia Regâ—s neuer awâ—it the lesse It is plaine now that the Baron dying sâ—ised if the wife be deforced sâ—e shall recouer dammages which are sometime comprised in the iudgement oâ—seisin and sometime awarded 〈◊〉 iudgemâ—nt â—â—â—â—â—uerâ—â—nt or sâ—râ—â—â—se vt sâ—pâ—â— But for all this Statute of Mâ—â—toâ— de iniusâ—â— deforciamento a widdow shall not in all cases recouer dammages by this dying seiâ—â—d for if the Tenant plead touts temps prist c. and it be confessed or found to haue béene so there iâ— now no fault in him â—â—â— Câ—â—yâ— Hill â—â— Hâ—â— 4. fol. 40. 41â— foreuery hâ—â—re hath right to all the parts of hiâ— since storâ— iâ—heritaâ—â—e â—till the widdow will â—â— indowed The case they say obiected viz. that in a Writ of Coâ—sâ—â—â—â—â— touts â—emps prist will not excuse the Tenant of dâ—â—â—ages is no thing â—like for the Oâ—cuâ—iour there hath not iust â—itlâ— c. Doctor and Student tels vs fol. 82. 8â— that though the husband dieth seised if hiâ— widdow â—oth not deâ—â—â—d Dower sâ—â— shall recouer no daâ—â—ages for it is a gâ—â—â— plea in a Writ of Dower â—â—â—â— the Tenants appeare the first day to say touts tempâ— pâ—ist a yeeldâ—â— Dower if it be deâ—â—â—ded and that plea â—â—all â—xcuse him of dâ—mmages but iâ— he had made refusâ—â—â— he shall bée chargeable as well for dammages before the request as after But in Sir Edward Cokes 4. Rep. 30. b. in Shawes Case a woman recouered Dower by plaint in a Court Baron and shee recouered dammages from the death of her husband because he died seised and it doth not appeare that there was any request and refusall I dare not say that it is Idemius whether the heire or his feoffée plead his plea though I cannot findâ— any presâ—â—ent of dammages giuen vpon it being true but often sur plea de touâ—s temps prâ—st the iudgement ended thus niâ—ilde materia quiâ— venit primo edis vide â—â— Ed. 4. fol. 7. I doe referre the Reader for his better instruction touching this matter where hee shall finde variety of store Sir Edward Cokes Comment vpon Litleton fol. â—2 b. The second Chapter of Merton giues power to all widdowes to make wils as well of Corne growing vpon their dowry lands as vpon their inheritance saluis sâ—ruâ—â—s dominorum de â—eodis quae de doâ—ibâ— aliis tenementis suis debentur Britton séemeth to be taken with a Chancâ—â—y spirit vpon â—ight of this Statute cap. 10â— fol. â—â—0 where he saith that in euery iudgement of seisâ—â— awarded of reasonable Dower there ought to be a â—oreprisâ— or exception de bleâ—â— câ—â—ssaunâ—s femes â—auches I will subioyne Bracton as an Adiutor perhaps more orthâ—doâ— Dower saith he lib. 2 cap. 40 shall â—â— assigned by the heire if he â—e of full age or by the Lord in the heires name if he be vnderage And this within forty dayes after the husbands death for otherwise occurâ—iâ— tempus sequantur damna nisi rationâ—bilis causa excuset This assignation must be made of the land as it was by the husband tilled or vntilled with the fruits growing vpon it allowing nothing to the heire or Executor for manuring husbanding or culture of it for of old time it was obserued that in what â—â—sâ— or plight a woman had receiued her Dower whether it â—â—â—â— tilled or vntilled shee must restore in like plight to the heire c. she might not make her Will of any corne groâ—ing or fruit not sâ—parated from the francktenement Sed nouâ— superueniente gratia sicut pâ—â—et de prouisionibus apud Merton A woman may now ordeine her Testament of corne or fruit growing on her dowry or seuered growing all is one If the husband alien all his lands and the Tenants need not yéeld dower to the widdow as soone as shée demandeth it if there bee iust cause of calling to warranty one or more successiuely till the heire bee vouched And all that time the Tenants are not charged with dammages or cosâ—s But when the heire entreth into warranty if he doe not presently yeeld Dower but stand out â—bstinately hee shall pay dammages as much as dower mâ—ght haue béene worth to the woman from the time of the husbands death to the day wherein shee hath iudgement and the heire shall be amercered In like manner is it if a widdow without any assignation enter into her Dower that was certainly nominated to her ad ostium Ecclesiae and which shee findeth empty at her husbands death if she be eiected or put to suit and delayes she shall recouer dammages So shall shee if shee be eiected the tenement assigned for quarentine during the forty dayes or before dower assigned after the forty dayes So likewise is it if shée haue no place at all assigned to dwell in vbi recliâ—et caput suum c. Thus Bracton and thus long wee haue béene in the Writ de dote nihil vnde habet which though it bee aptliest brought in the common place for the reason aboue declared yet it may bee sued in the County before the Sheriffe per Iusticies as saith Fitzherbert in his na bre 148. But then it séemes it must bée remoued by recordari facias if the Tenant plead ne vnque accouple c. so the booke of Entries 223 224. for in the base Court that issue cannot be tryed SECT XVIII The Writ de recto de dote THere is another Writ called the Writ of right of Dower not because the former Writ hath any â—orciousnesse in it or claimeth vpon wrong title but because this second Writ hath fewest ambages in pleading and the forme of it is vpon pure right Britton saith there are cases wherein a woman is driuen to a Writ of right of dower pleadable in Court One is where a woman hath lost seism of her dower as if shee were disseised and after long peacable seism of the desseisor shee reentred with force if the desseisor recouer against her by assise she hath no remedy but onely by Writ de recto de doâ—e counting of her owne seism Aâ—other is where a woman demands lands or tenements which were her husbands as part of her dower when shee is seised of a surplus or greater part already And the third is when shee demands something as appertenant â—â— hâ—r dower Fitzherbeâ—â— séemes not to allow Bractonâ— relation of vnde nihil
to make void the Obligation or Statute if there be cause with a seuere penalty of 300. li to bee forfeited by the Sheriffe if hee did not execute she same Writ duly according to the tenure thereof This Statute was too méeke and gentle something like him that made it H. 6. SECT XXVII 3. H. 7. c. 2. BVt 3. Hen 7. cap. 2. beginning with a better complaint against takers for lucre of maids widdowes or wiues hauing substance of lands or goods or being heires apparant which takers sometimes married them and sometime desâ—owred them to the breach of Gods Law and the Kings the disparagement of such women and vtter heauinesse and discomfort of their friends ordaineth that whosoeuer taketh against her will vnlawfully any maid widdow or wife shall together with the procurors abbetters and receiuers of any such women knowing her to bee so taken against her will bee felous and euery of them béene reputed and iudged as felons principall But this extendeth not to taking where a woman is claimed as a ward or bondwoman And Mr. Lambard noteth that anno 3. 4. Phil. Mar. this Statute was construed to make no felony vnlesse the woman married were either taken or deslowred SECT XXVIII 4. 5. Phi. Mar. cap. 8. THerefore to supply what hitherto was wanting against takers and also intisers rauishing by allurements and flatterers 4. 5. Phil. Mar. cap. 8. saith that for want of sufficient Law it remained still a famlâ—ar and common mischiefe in the Realme That maidens and women children of Noble men Gentlemen and others which were heires apparant or had lands in great substance left by their Ancestors or friends by flattery trifling gifts or faire promises of light persons and also by subtility of such as bought and sold them for reward were many times allured to contract matrimony with vnthrifty persons and thereupon oftentimes with sleight or force were taken from their parents friends or kinsâ—olke to the high displeasure of God the disparagement of the children and perpetuall condolence of their friends Therefore it is ordained that it shall not bee lawfull to conuey any maid or woman child vnmarried or vnder the age of sixteene yéeres out of the possession and against the will of her father or of such person to whom by his will or otherwise in his life time he shall haue appointed the kéeping education and gouernance of her except such taking as shall bee without fraud by the Master or Mistris or Gardian in Soâ—age or in Chiualry of or to such maid or woman child And if any person that is aboue the age of fourtéene yéeres shall conuey or cause to bee conueyed any such maid being within the age of sixtéene yéeres out of the possession and against the will of the father or mother or any other person which then shall haue by lawfull meanes the order keeping education or gouernance of her the offender duly attainted or conuicted other than such of whom shee shall hold by knights seruice shall suffer two yéeres imprisonment without baile or mainprise or par such fine as shall bee assesed by the Quéenes Councell in the Starchamber And if any shall take away and deflowre any such maid or woman child or shall against the will of her father or he not knowing if the father be in life or without the assent or knowledge of the mother hauing â—ustody â—nd gouernance of the child the father being dead by letters messages or otherwise contract matrimony with any such mard except it bee by the consent of the person or persons by interest of wardship intituled to haue the marriage he shall suffer being lawfully conâ—â—ted fiue yéeres imprisonment without baile or maineprise and pay such fine as shall bee assessed in the Starrechamber c. the one moity of all which fines shall bee to the Quâ—â—e and her successors and the other to the grieued And the Councell in Starrechamber by Bill of complaint or information and Instices of assise by inquisition or indictment in which processe shall be awarded as inditements of trespasse at tâ—e Common law haue authority to heare and determine the offen â—s Moreouer if any woman child or maidâ—n being aboue the age of twelue yéeres and vnder sixteene doe at any time consent to such person as shall make contract of matrimony contrary to the forme of this Statute the next of kin to whom the inheritance should come after her death shall from time of such assent haue and enâ—oy all such lands tenements and her editaments as shee had in possession reuersion or reâ—â—â—nder at the time of assent during the lâ—te of such peâ—son so contracting matrimâ—ny and after her â—â—cease so contracting c. then the said lands shalldescen reâ—eâ—â— remaine and â—ome to such person or persons other than tâ— him that shall so contract matrimony as they should haue done in case this Statute had neuer beenâ—mâ—deâ— But thâ—s At extenâ—eth not â—o diâ—â—â—sh any libeâ—ty custome or authorite in London or like corporations as touching Orphancs their lands goods or chattels Sée Ratcliffs Case in Sir Edward Cokes 3. Rep. fol. 38. vpon this Statute of 4. and 5. of Phil. and Mar. In an Eiectione firme vpon speciall pleading a speciall verdiâ—t was thus in effect that William Wilcokes married the daughter and heâ—re apparant of Iohn Edols and Alice his wife and hath issue by her Iohn Elizabeth and Martha William Wilcokes afterwards by his will in wrighting appoints the order custody education and gouernment of his said three children to their said grandfather and grandmother during the grandfather and grandmothers liues and then dyes the widdow of Wilcokeâ— marrieth Raphe Radcliffe Iohn Edois dyes and his widdow being Tenant in â—ee simple of the lands in question holden in soccage by her will deniseth them to her grandchild Iohn Wilcokes in taile the remainder to Elizabeth and Mortha and the heircs of their two bodies equally to bee diuided the remainder in fee to her said daughter and heire apparant the mother of these thrée deuisées and dieth Iohn Wilcoke dieth without issue his sister Elizabeth married one Andrewes and he his wife and her sister Marthâ— enter the lands and were seised accordingly and Marâ—ha abiding with Raph Râ—tclâ—ffe and his wife being aboue fourtéene and vnder sixtéene yéeres of age with Raph Râ—tâ—lâ—ffe his consent and of her owne accord departs eight miles off from them where six houres after shee was married to Edward Raâ—cliffâ— who enters and made the Plaintisâ—e his lease And the issue being whether Elizabeth Ratcliffe the wife of Raph Ratcliffe had the custody of Martha the wife of Edward Râ—tcliffe the lessor at the time of their contract and marriage all the Iudges and Coâ—rt of Kings Bench resolued that Elizâ—beth had the gouernance of her daughter Martha at the time of her contract and marriage within the intent and meaning of the Statute It was resolued in that case that those words father mother within the
his subiection betwixt a Senator and a fréed bond-woman betwixt a Senators Daughter and a fréed bondman betwixt a woman Comedian or one whose parents vsed some lasciuious or light Art and a Senator lastly betwixt frée and seruile are all either by long publike Custome or by Common Law taken away SECT XVII Of Polygamie THere are examples in Scripture of Poligamy viz. where men had more wiues then one at once as Abraham Iacob Dauid and Salomon had And it seemeth 21. of Deuteromie 15. that it was sufferable by Moyses his law But it was said at the first man and wife shall be one flesh and the examples were rather permitted then lawfull The Ciuill Law Canons and all Christian Common wealths doe vtterly condemne Polygamie and so much did the wise Emperors of Rome detest all petulancie of Marriage that they made and ordained Lawes that Women which within the yeare of mourning for their husbands betake them to wedlocke againe should be reputed infamous and defamed But this also the Canons haue taken away Contracts of Matrimony ought to be publike Nuptials de presenâ—i ought alwaies to be made publike at the Church or at the least in presence Congregation del bon gâ—nâ—s yet is it not of necessity that they which marry stipulate by theÌ„selues or be present in person at the contract making but it may be well enough by Proctor so that the Contractors themselues be willing and witting or that they ratifie it when it is done SECT XVIII What words are requisite THere néeds no stipulation or curious forme of Contract in Wedlocke making but such words as proue a mutuall consent are sufficient and it may be made by Letters If question rise about words recurrendum est ad communem intellectum vsum loquendi indubio pro matrimonio iudicandum for there is more doubtfulnesse in construing of words vt res magis valeat quam pereat c. SECT XIX The Accidents of Marriage THose things which are of solemnitie or beneuolence as prouision of Dower earnest giuing pledges nuptiall benediction c. are not of the essence of Matrimony which is made by consent for though Dower cannot consist without Marriage yet Marriage may very well stand without dower And so it is of all Donations propter nuptias In onely one case written instruments are required in making of Marriage and that is where a man marrieth her whom he hath holden a long time as Concubine here instrumenta dotalia are behouefull that the children had before Marriage may be estéemed Legitimate But this holdeth not in England SECT XX. Wherefore Marriage ought to be made THe causes of Matrimony principally are two The first is susceptio sobolis increase of Children for euen by Plato euery good man ought to desire that he may leaue behind him worshippers of God and propagators of piety The second cause is the euiting of fornication and vncleannesse 1. ad Corinth ca. 7 Saint Paul biddeth that to auoid fornication euery man haue his owne wife and euery woman her own husband and whosoeuer marryeth for beautie age order splendour of birth or for riches rather then for these two causes doth very peruersly though it be not expressly disallowed but Marriage may be for the other things also and the Consent may be giuen for them SECT XXI The Consummation and indiuiduitie of Marriage WHen to the Consent of minde there is added Copulation of body Matrimonie is consummate the principall end whereof is propagation or procreation But where the course after going is not obserued there riseth no lawfull Off-spring the Children which are had are not in power and commandement of them which beget or beare them neither are they taken by Law for any other then vulgo queâ—iâ—i Otherwise it is in lawfull Wedlocke the knot whereof is so straight and indissoluble that they which are yoked therein cannot the one without the consent of the other neither was it euer permitted abdicate themselues or enter into Religion for Saint Paul in the aboue titled Epistle and Chapter saith plainely that the husband hath not power of his owne body c. And there cannot chance any fedity or vncleannesse of body so great as that for it a man and wife ought perpetually to be segregated yea so vnpartible be they that law saith they may not vtterly leaue coniugalem consuetudinem though one of them haue the very leprosie it selfe And here is moued a question not impertinent That is whether a woman be bound to follow her husband whersoeuer he goeth if he require it wherevnto it is answered by Bartall and by some other That if the wife before shee married knew the negotiations and occasions of her husband would be such that he must of necessity euer be trauelling she is bounden and iâ— the Contract seemeth to haue consented to go with him at commandement but if after the bargaine made he take vp a new tricke of circumâ—â—garâ— she may let him goe when he list and tarry at home when shée will SECT XXII Of Diuorce PActis poenarum cogi potest nemo ad Matrimonium contrahendum And as no man can be compelled by any conuention of paine or penaltie to contract Matrimony so is it impossible when it is once lawfully and euidently contracted to distract it by any partition couenant or humane traction Quos Deus coniunxit homo non separet yet there are Causes for which diuers are permitted But Diuorce that onely separateth a consuetudine coniugali taketh not away the bond of Matrimony and therefore Diuorces are sometimes perpetuall as long as the parties liue sometimes for a season limited and sometime till reconcilement be had and he that maketh Diuorce with his wife being only separated a Toro is forbidden to take another wife SECT XXIII Causes of Diuorce THe Ciuill Law hath many causes of Diuorce but by Diuine and Common Law the onely sufficient cause is adultery and fornication which by the Canons is carnall and spirituall the spirituall is heresie and Idolatry They dissolue Matrimony for spirituall fornication onely where one of the parties is conuerted to Christian faith and the other for hatred of his religion will not cohabit c. And this is taken also from Saint Paul 1. ad Corinth 7. where he saith If the vnbeléeuing depart let him depart a Brother or Sister is not in subiection SECT XXIV Impotencie or Disabilitie of Procreation THere is admitted also in dissolution of Marriage the complaint of impotencie And Iustinian very discréetly willed that in that exploration or proofe of the defect there should be expected thrée yeares but the Canons ordeine that Matrimony is dissolued by probation of impotencie without mention or limits of time And this is more then a bare diuorce or separation a Toro for it dissolueth Marriage auoyding it as it had neuer béene so that he or shee whose fellow is conuicted of impotencie may choose a new friend and presently marry againe But this is to be
setting it abroach but the curious learning w. is that of spirituall kindred caused either by holy Baptisme or by the blessed Chrisme and this had power impediendi Matrimonium contrahendum dirimendâ— matrimonium contractum yea this was such a matter that 39. Ed. 3. fo 32. Bastardie is pleaded against the Plaintiffe in assise and the cause was that the father married a woman before which Marriage he had christned â—â—â— which was his Wiues cousin and for this cause after and of them was dead Diuorce was sued and Iudgement thereof giuen in the spirituall Court though indéed by Iustice Thorpe and the greatest opinion in the temporall Court the Issue could not be bastardized vnlesse the Parents had beene called and the Nuptials destroyed by sentence which was now impossible to doe for death had determined them Out of question therefore if the parties had liued a little or no Kindred had marred great good acquaintance But howsoeuer by those dayes secular Marriage was forbidden in spirituall men and secular men were straightly prohibited by spirituall Spirituall Kindred the Statutes afore-going haue now welcommâ—â— Wedlocke cleane out of the Popes stockes And the 18. of Leuiticus alone doth in a manner sufficiently demonstrate with what persons Women are restricted to marry SECT XXX With what persons Women may not marry SUch are her Grand-father her Father her Sonnes Sonne c. her Brother though it be but the one part her Fathers or Mothers Brother her Brothers or Sisters Sonne or her Sonnes Sonne Brothers or Sisters Children saith Ramus in his Commentaries of Christian Religion lib. 2. ca. 9. are forbiden to inter-marry ed more non lege Diuina vel Romanâ— Christians he saith further which haue abrogated the Law 25. of Deuteronomy whereby a Brother might bee challenged to raise vp the house of his deceased brother haue also constituted a prohibition within certaine degrées of affinity and therefore a man may not marry with the widdow of his Grandfather or of his Father or with the widdow of his owne Sonne or of his Sonnes Sonne or with the widdow of his Brother or of his Brothers Son or of his Brothers Sonnes Sonne c. Nor with the Grand-mother Mother Daughter Neece great Aunt Aunt or Sister of his deceased wife SECT XXXII Of Wooing I Am affraid my feminine acquaintance will say I writ as I liue I talke much of Marriage but I came not forward stay a while yet I pray you I know many an honest woman more repenting her hastie Marriage ere she was wâ—oed then all the other sinnes that euer she committed It were good reason we speake a little of wooing but to handle that matter per genus species would take vp as much roome as the Indian figge-tree euery thrid whereof when it falleth to the ground groweth to a body I will slip by it onely obseruing that the giuing of gloues rings bracelets chains or any thing that is ex sponsalioruÌ„ largitate as a man would say of loues liberality or as a pledge of future Marriage betwixt them that are promised haue a condition silent for the most part annexed vnto them that if Matrimony doe not insue the things may be demanded backe and recouered yet there is a distinction of like for I haue authoritie in it Si sponsus dedit aliquid aliquo casu impediuntur nuptiae donatio penitus rescinditur nisi osculum intervenerit marry if he had a kisse for his money then the one halfe of that which was giuen is the womans owne good And she hath yet more fauor in the case for whatsoeuer shee gaue were there kissing or no kissing betwixt them she may aske all and haue all againe Quaere of this in the Consistorie SECT XXXII The Condiments of Loue. THere are with vs as wel as with the Ciuilians many kinds of Donations propter nuptias and some ex sponsaliorum largitate Good meats are the better for good sauce venison craueth wine and Wedlocke hath certaine Condiments which come best in season in the wooing time and serue as Breton saith pour doner fees come melier talent d'aymer Matrimonie A husband per se is a desirable thing but Donements or Feoffements c. better the stomacke though of it selfe it be good and eager And because the first Marriage made in Paradice if you marke it well had a Iointure I cannot but allow the circumspection which is had SECT XXXIII Of Franke Marriage IT was as I suppose more frequent in the old time that men gaue Lands with their Daughters in Marriage then it was at this day But now as then if a man liberally and freely without money or other considerations saue onely loue and naturall affection giue Lands of Tenements to another man with a woman which is Daughter Sister or Cousin to the Donor in Franke Marriage whether it bee tempore Matrimonij vel ante vel post this word Franke Marriage maketh an estate of Inheritance viz. to the Donees and the heyres of their two bodies and they shall hold quite of all manner of seruices except the pure fealtie till the fourth degree bee past But the Issue in the fift degree and his Descendant shall hold of the Donor and his Heyres as they hold ouer SECT XXXIV The Gift must bee Franke. PEr Rich. 16. assi p. 66. if a man giue land in Franke Marriage rendring a rent the reseruation is voyde till the fourth degree be past per Martine Iustice 4. H 6. 22. such a reseruation is méerely voyde for it is contrary to the nature of Franke Marriage By the old tenures such a reseruation is good and the Donée shall hold in Common estate taile by Brooke in his Abridgement it cannot be any estate taile for want of the parol heyres And where such a gift is made to a woman not cousin to the Donor there passeth but estate for life for it is by a maxime or ground that Franke Marriage maketh inheritance and this case is out of the principall By Bracton fo 28. 29. Si terra detur in maritagium viro cum vxore eorum haeredibus pro homagio seruitio viri licet detur in liberum maritagium qua sunt sibi ad inuicem aduersantia c. tunc prefe 〈…〉 um erit ac si donatio fieret taiâ— viro quam vxori he deliuereth the like learning before fo 22. and this rule withall â—x tacita conditione pacta incontinenti opposita insunt contractibus legem dant eis illos infirmant SECT XXXII The gift must be to a Woman c. IT was deliuered for a Law in tempore H. 8. that Lands cannot be giuen to a man in Frank Marriage though he be Cousin to the Donor SECT XXXVI It may be tempore Matrimonij ante vel post WHat if after the gift made the man refuse to marry the Cousin of the Donor marry else-where If two Donées in taile after the Common forme be diuorced vpon a pre-contract made by
an issue of ne vnques accople in loyall Matrimonie and that must be tried by the Bishop Therefore for the better direction of Brides take the case verbatim as it is propounded with the solution 22. Eliz. Dyer 369. A woman of full age contracts Matrimonie by words of the present instant with a young man of twelue yeares age and this being solemnized in face of the Church with consummation after a sort the young man being put to bed to her died vnder age quaere if the Ordinarie ought to certifie an accomplement in loyall Matrimonie Solutio doctorum quindecem We be all of opinion that she is to be taken for a loyall wife coupled in loyall Matrimony and in question of Dower that the Bishop ought so to certifie for albeit that in other regards these were but Sponsalia de futuro yet in case of Dower and the priuiledge thereof they are extended to Matrimony consummate Et iudicium datum pro dote heere ye say was the Law as cleere as Christall on your side when supper is done dance a while leaue out the long measures till you be in bed get you there quickly and pay the Minstrels tomorrow SECT II. Baron and Feme one person NOw that Matrimony is celebrated and consummate here is so strait a fellowship or rather identitie of person that if a feoffement bee made to a man and his wife iointly with I. S. the Baron Feme take but a moity and in a feoffement to Baron and Feme and I. S. and T. K. they take but a third part and where a feoffement is made to a man and his wife ioyntly they take not seuerall moities as other ioynt Feoffees doe but the Baron and feme take intirely together and in Law they are said to be seised by intierties and there is no halfing betwixt them For if the Baron charge the whole land or part of it with a rent the wife shall hold it discharged after his death and if he sell all or part and die the wife shall recouer all by Writt of cui in vita See 40. assi pla 7. If a Villeine and his Wife purchase land ioyntly the Lord enter and the Villeine die the Feme or her Heyre shall haue the whole Land Eadem lex videtur where the Husband ioynt-purchaser is an Alien borne or attaint in premunire or of fellonie But the booke of Assises goeth not so farre The videtur is Parliament 43. in Brooke where likewise ye shall see it was holden 5. H 7. fo 31. that if T. infeoffe W. and A. his wife afterward it is by Parliament enacted that all estates made by T. to W. shall bée voyde that the feoffement shall be voyd as well towards the wife as towards the Husband because they are but one person in Law and the Feme taketh nothing but by agréement of the husband And vpon the like reason is the case Dyer 3. Eliz. fo 196. Sir Rob. Catline purchase land held in capite to him and his wife and his heyres without licence and the Queene pardons all offences pro quacunque alienatione sibi facta and doth not speake of the wife in the pardon and yet it was allowed in the Exchequer But if the feoffement had beene to W. and I. S. this I. S. should haue held his moity notwithstanding the Parliaments decrée and this seemeth to bee the better opinion though there were in manner equall number to maintaine That if the feoffement were before couerture the Parliament should voyd it for a moity but if it were after couerture it should voyde for no part against the Feme when shee was discouerte leauing to Parliaments their omnipotencie it is cléere the husband cannot seuer the Ioynture betwixt him and his wife as an other Ioynt-tenant may if the Ioynture were made during Couerture because there is then no moity Otherwise it is if the Ioynture were made before the Marriage And if lands be giuen to a man and his wife habendum one moity to the husband and habendum the other moity to the wife now they bee seised of moities as Tenants in Commom But for this I finde no other authority then the opinion of Knightly in Dyer 28. H. 8. 10. b. SECT III. Baron feme cannot infeoffe one another MOreouer this Conglutination of persons in Baron and feme forbiddeth all manner of feoffing or giuing by the one vnto the other for a man cannot giue any thing vnto himselfe therefore 27. H. 8. fo 27. In action of debt vpon an obligation to performe couenants where it passed for the Plaintiffe because the Defendant had not paid annually seauen pound to his wife it is alleaged in arest of Iudgement that the Couenant was impossible in it selfe c. But Chomeley Shelley and Fitzherbert moued the husband to agrée with the Plaintiffe Car le exception sert de riens for although in strict intelligence of Law money and Chattels paid deliuered or giuen to the wife by the husband are still his owne yet a man may giue his wife a paire of hose saith the booke as a man is bound by honesty so he may be bound by red waxe and parchment to finde his wife sustenance and to bee bound to giue her money for her securitie is all one from this Lanthorne I thinke he tooke his light which bound a gentleman of mine acquaintance to giue his Wife the Obligée his Daughter yearely such and so many gâ—wnes Hertles c. And the meaning must bee taken and obserued in the booke of 4. H. 7. fo 4. is another memorable Cause A man was bound to I. S. by obligation to make a sure estate to a woman in certaine tenements within three moneths after his fathers death The Obligor marrieth the woman in his fathers life time and the Matrimony continueth till the three moneths be expired the obligation is forfeited Vauisor said the husband might well haue performed the condition by fine leuied vpon a writt of Couenant brought by a stranger against the Baron and feme Fisher said he might haue performed it by making a Lease vnto a stranger the remainder to the wife quaere of that Vauisors performance had beene good I thinke if there had beene in the beginning a full purpose and intent of intermarriage betwixt the woman and the Obligor But that appeares not and therefore being that hee hath brought himselfe to an impossibility of performance either of words or meaning the Obligée must néeds be allowed the aduantage If the obligation had béene to the woman her selfe the condition by inter-marriage had béene dispensed with for where the Obligee is a cause that the condition cannot be performed the not performing is without penalitie to the Obligor as if in the old dayes I had béene bound to an Abbot that A. should infeoffe him c. before Christmas if A. had presently entred into Religion my bond had presently beene forfeited not so If A. had béene professed vnder the obedience
de peccatis for the heire could not be bastardized when the parents both or one of them were dead and therefore not citable to appeare c. And it is holden strongly by Thorpe 39. Edw. 3. and in the Parliament 24. H. 8. see Brooke titulo Bastardie 23. 37. 44. 47. And a diuorce cannot bee had but of a marriage consisting and not yet by death dissolued for there cannot wel be a reuersing of any diuorce when the parties diuorced be dead as Brooke vnderstandeth Connings by 12. H. 7. 22. for saith he it was adiudged in Coâ—bers case where the baron and feme had issue and afterward were diuorced the baron taking another wife by whom he had issue and died that when the first issue sued in spirituall Court to reuerse the diuorce and bastardize the second issue after his fathers death a prohibition lay But it was said that the title and discent were comprised in the libell or else the prohibition could not haue beene granted Thus saith Brooke titulo Deraignment But titulo Bastardy 47. hee setteth downe the same case that a man may be bastardized after the espousals wherein he was begotten and borne or by death determined Sée Sir Edw Cokes 7. report Kennes case that some diuorces dissolue the matrimony scilicet à vinculo matrimonei and bastardize the issue and â—arâ—â— the woman of her Dower and some à mensa Thoro which dissolueth not the marriage nor barre the wife of her Dower nor bastardize the issue And therefore if any action be brought and diuorce pleaded the cause of diuorce ought to bée shewed And there it is said that a diuorce may be repealed in the spirituall Court after the death of the parties but a suit after the death of the parties to diuorce them and to bastardize their issue may not be for that the triall of bastardy or not belongeth to the temporall Court originally if sentence doe not hinder And sée Sir Edw. Cokes Institut ca. Dower f. 33. ca. Estates upon condition fol. 181. the deriuation of the word diuorce à diuertendo or dinoâ—â—â—ndo quia vir diuertitur ab vxore and sée there the seuerall causes of diuorces and how for any of them respectiuely doe extend in power and effect and in Littletons tune many diuorces were of force which the Statute of 32. H. 8 cap. 8. take away and there sée that a man may marry the sister of his first wife since that Statute By Na. br â—â—l 44. in the writ of prohibition and Na. br 1â—9 and Dyer 28. H. â— 1â— agrée if the woman shall haue the goods not spent and that detinue lyes for them If goods be giuen in marriage with a woman shée shall recouer them in the spirituall Court after diuorce and there lyeth no prohibition â—6 Hen. 8. fol. 7. is that if the husband before diuorce had haue giuen or sold without collusion such goods as were the wiues before marriage she is without remedy for them being diuorced But if he aliened them by collusion and bring a writ of detinue for so much of them as the property may bée decerned of and for the residue money and such like shee shall sue in spirituall Court If a man which is bound to a woman by obligation marry her and they be diuorced she hath her action againe which was suspended ibid by Fitzh and Norwich But see the booke of 11. Hen. 7. 4. p Cur. contrary where the diuorce is causa praecontract ' and it is so cited Dyer 4. Mar. fol. 140. If the woman diuorced were an Inheritrix c. and the husband before diuorcement hath done waste felled her woods receiued her rents granted her wards presented to her Churches giuen away her goods none of these things past in possession executed can be reuersed or recalled But if the Inheritance it selfe were discontinued or charged or a release made of it or hir villaines manuâ—â—itted shée shall haue remedy for these things by common Law If baron and feme Iointpurchasers de disseised and the baron release c. the wife shall haue a moiety if they bee diuorced although before there were no moieties betwixt them for the diuorce conuert that into moieties which sée Brooke title Deraignement and diuorce 32. H. 8. In Sir Edward Cokes 5. Rep. in Olands case it was holden that if a Lease bée made to baron and feme during the Couerture and the baron soweth the land and after there is a diuorce causa praecontract the baron shall haâ—e the Corne and not the lessor for although the baron prefecuted the suit yet the sentence which dissolues the marriage is the iudgment-in Law and Iudicium redditur in â—â—ultum And as by diuorce that which was intire may bée conuerted or diuided into moeties so by it inheritance may bee made francktenement And if baron and feme donées in taile haue issue and be diuorced now they haue but francktenement and the issue shall not inherit for it is not like here as where lands are giuen to two men or â—o a man and his mother or to a man and his daughter and to the heires of their bodies where seuerall heires shall seuerally inherit for it was neuer lawfull for them to marry 7. Hen. 4. 16. Brooâ— 9. in titulo Taile sée also 13. Edw. 3. titulo Deraignment If land be giuen to baron and feme in taile which be diuorced causa praecontract c. they shall hold ioyntly for terme of their liues and the land goe to the Suruiuor But by the Reporter if the gift were in franckmarriage the party which did not cause the diuorce shall haue all and agreeing to that difference is Perk. Chap. feoffement Sect. 238. and also agréeing is Sir Edw. Cokes 9. Rep. in Beamonts case 12. Assisar p. 22. Dorees in franckmarriage were diuorced at the womans suit the baron continued possession till he died and afterward the womandied the possession was adiudged to haue remained alwayes to the woman because shee neuer made any debate for it so that the man neuer had it by disseisin and agréeing to that is Plowden Wymbysses case fol. 58. Dyet 3. M. fol. 126. 19. Assisar plac 2. The Doâ—â—e in franckmarriage wedded infra annus nubiâ—es sued diuorce by the barons motiue and the wiues agréement at their full age and the woman recouered all the land against her quondam husband by assise And Titulo Assise in Fitzh pla 413. 44â— is this case A man of certaine tenements infeoffed his feoffor his wife in tayle the remainder to the right heires of the baron they were diuorced at the suit of her husband which kept the woman out of the lands and she brought an Assise whereby she recouered a moyty of the tenemen's by iudgement presently And propter difficultatem it was adiâ—rned for the other mâ—ity to the Commonpleas where shee had â—udgement of that also because diuorce was at the husbands sâ—â—t As a woman may haue an Assise against her
infeofed with warranty hee shall not pray that she 〈…〉 ow her selfe for he may vouch the heire which Gardin 〈…〉 Chiualry cannot doe It is no good plea for Gardine in Chiualry to say the Demandant was gardian in soccage c. but hee must shew that she is gardian in soccage â—our del brief purchase and this is good till shée haue shewed by replication the land deuested from her possession If a widdow gardian in facto of some lands that were her husbands and holden in Chiualry purchase her Writ of Dower against another Gardian in Chiualry hée shall not plead the speciall matter and plead vt supra for the wardship is here to the widdowes owne vse and profit SECT VII Assignement of Dower by the King Statutum prerogatiue ca 4 fact 17. Ed. 2. THe Statute is that after the deathes of husbands which held of the King in Cap 〈…〉 the King shall assigne Dower yea although the heire be of full age Vidue si voluâ—runt And such widdowes before assignation of Dower whether the heire bee of full age or vnder shall sweare not to marry without the Kings licence If they doe marry â—aâ—â— licence the King shall take into his hands as a 〈…〉 esse all the Lâ—â—â—s and Tenements holden of him in Dower so that the woman shall take no profit of it till shee or her husband haue satisfied the Kings will by fine which was wont to be tempore regis Henrici patris regis Ed. â— â—aith the Statute at full yéerely value of the whole Dower nisi vberiorem gâ—â—â—iam habuâ—â—â—nt â—ulieres And women which bee themselues Tenants in Capite of inheritance what age soeuer they be of shall sweare likewise not to marry without the Kings licence Si fecerint terrae capâ—â—â—tur eodem modo in manus Regis c. This Statute is proued to bee but confirmation of the common Law â—4 H. 3. Prâ—rogatiue 27. iâ— Fitzheâ—â—â—rt and by â—â— Char c. 7. ul a vidua distringatur ad se â—â—â—â—tandum dummodo voluerit viuere â—â—â—e marito Ita tamen quod secuâ—itatem faciat quod se non maritabit â—ine assensu nostro si de nobis tenuerit vel sine assensu domini sui si de alio â—â—nnerit Fitzb. in natu br 263. shewes the manner of indowment by the King The widdow must come into Chancery and make oath not to marry sans licence whereupon the King may make the Assignement in the Chancery and direct his Writ to the Escheator certifying him that hee hath assigned a third part of such lands with a third part of the liberty of Court view of franckpledge c. commanding him to make liuery of the same to haue in Dower or the woman may after she hath sworne haue a writ reciting her oath and commanding the Escheator to make assignement But the most vsuall course is vt antea And the King though hee hath committed custody of lands to another person may assigne Dower to the widdow in Chancery notwithstanding and shee shall haue a Writ to the Escheator yâ—â— and the King may grant a Writ to the Escheator commanding him to take surety of the widdow not to marry sans licence and then to assigne her Dower as praecipiâ—us tibi â—â— capâ—o sacramento c. assignari libâ—â—i â—â—ciaâ— c. If the Tenant which is dead held by Chiâ—â—â—ry of some Bishopricke or such like which is in the Kings hands by vacancie the widdow must demand her Dower in Chancery and she shall haue a Writ for her Assignement to the Escheator but in this case shee sweares not to marry sans licence So is it also when Dower is demanded of laâ—â—â— holden of a common person in Chiâ—â—â—ry where the heire is in the Kings ward pâ—r â—â—nage And the King may assigne Dower in Chancery rendring rent to him because the lands assigned doe excéed a iust third part of the Tenements whereof Dower is assignable If the widdow be so weake â—â— impotent that shée cannot trauell to the Chancery to take her oath and demand Dower she may sue a speciall Writ to some person both to take her oath and to receiue Attâ—rney whom she will constitute to sue in her stead If liuery bee made to the heire being of full age with a reseruation of Dower to be assigned to the King and then the widdow commeth into the Chancery for Dower as shee must doe there shall goe a speciall Writ to the Escheator to warne the heire that he be in Chancery at a certaine day and the widdow shall bée appointed the same day to receiue her Assignement But if the Writ of Liuery directed to the Escheator bée generall without clause of salua doâ—a per nos assigâ—anda the widdow must now â—â—â— for her Dower by Writ of Dower against the heire If the King when he makes liuery reserues Assignement of Dower to himselfe in his Writ to the Escheator now whether the widdow come and demand dower in Chancery or demand no dower yet the reuersion is in the heire after assignement for after the death of Tenant in Dower the heire shall not 〈◊〉 any neâ— liuery Because the first writ commandâ— all the landâ— to be deliuered and so the Escheator doth deliuer all nothing being reserued to the King but onely Assignement of Dower If after this Assignement iâ—â—e â—â—râ—isâ—â— by the heire or other body that the land which the woman hath is of far greater value than it was made by the extent c. if the excesse â—e 〈◊〉 and returned â— sâ—iâ—e facias shall goe forth â—â— cause the woman to come and shew cause why she should not take a nâ—w Indowment If she appeare and cannot gaineâ—ay the matter or if she were warned and make default it séemeth in both cases she shall be endowed a new So that parcell of the lands which she hath shall be taken from her â—â— the King may if hee will make assignment altogether new by a new Writ to the Viscount If the widow after she is sworne and indowed doe marrie sans licence the King sends to the Escheator to seise those lands which she holdeth in Dower by a Writ reciting the oath the indowment and marriage with this in it Nos contemptum huâ—â—â—modi nolentes transiâ—â— impunituÌ„ necnon indeâ—â—â—â—tati nostrae volentes prospleere tibi praecipimus si ita est â—nc omnia terrâ—â— â—â—â—â—ment quae tenâ—t in Dote c. capias in man nosâ—â— Ita quod de 〈◊〉 prouenientibus nobis respondâ—â—â— ad scaccarâ—â—◠〈◊〉 quousque nobis dâ— Forisfacâ—uâ—â— ad nos inde pertinenâ— satisfactur â—uâ—rit Thus far 〈◊〉 Stamford argueth whether Fitzherbert deliuer the Law rightly or no in this that he saith the King may assigne Dower in Chancerie though hee haue committed oâ—â—â— the wardship of land to some other body for many writs are in the yeare bookes brought against the Committée in such a case And in some bookes the woman recouers Dower the King neuer being made priuie As titulo â—â—â—
impedit the Plaintiffe may haue one writ to the Bishop and another to the Sheriffe to enquire of dammages Likewise 14. H. 8. fol. 25. in a plea of dower vpon confession the demandant recouered Iudgement and after Iudgement auerring that her husband died seised shee prayed a writ to enquire of dammages habuit for if the demandant in dower will recouer dammages shee must euer surmize that her husband died seised though the Tenant confesse the Action or plead but onely to the Writ and in the end of her Demise shee may maintaine the Writ for sur plee briefe the dying seised appeares not without surmise c. 22. H. 6. fol. 44. SECT X. Deteiner of Euidence BY Perkins none may deteine Dower for deteining of euidence but only the heire to whom the euidence belongeth and the heire when he pleads must shew what the euidence is c. And they must concerne the lands discended vnto him whereof Dower is demanded for hée may not deteine Dower of land which the Charters concerne not or for Charters concerning his purchased lands or those whereof he hath no seisin Aliter if they concerne some reuersion descended But if the heire come in vouched to warranty by the Barons feofée hée cannot plead this Deteiner of Euidence because in verity the land is another mans to whom most rightly the Charters belong But one copercener may haue this plea after partition against her mother or other Demandant in Dower though the euidence concerne the other parceners and her all alike see 41. Titulo Dower in Brooke If a widdow that is with child deteine euidence against her husbands daughter and heire or other heire collaterall it shall bée no sufficient plea to delay Dower 1. Perkins 70. 71. 18. Hen. 8. fol. 1. The heire said the Demandant deteined a bagge ensealed with the euidence concerning the land which if hée would deliuer hee was ready to render Dower bone plee per Curiam 33. Hen. 6. fol. 51. The Tenant pleaded for part of the land whereof Dower was demanded non tenure for another part detinue of Charters for another part Ioyntenancie which his father for a fourth part demanded view but it might not be granted because he tooke notice to himselfe of that part by pleading to the rest And the Plaintiffe to his plea of suruiuor pleaded his release made to the father her husband in his life time Issiâ—â— seisi que Dowre c. The plea of Euidence detained as Littleton said went to the whole action quod fuit negatum vâ—de Brooke â—y Dower 4 but he was forced to shew what euidence he deteineth viz. a speciall Charter 4â— Ed. 3. The Tenant pleaded a withholding of Euidence certaine conceâ—ning his inheritance and shewes what Et qâ—e il aâ— estre toures temps prist si c. the woman made title to two deeds by gift to her husband and her selfe and for the other Euidence shee said whereas the Defendant claimed as brother and heire to her husband shee kept it to the vse of her child si ouâ—sqÌ„ soit inseint qÌ„ serra â—eure si dien luy done nostre and issue was taken whether she were insâ—int die obitus mariti not whether shee were inseint per son baron die obitâ—s And that booke of 41. Edw. â— is cited for law in Sir Edw. Cokes 7. Rep. fol. 9 that a woman may deteine Charters for the heire in ventre â—a mere And 22. Hen. 6. fol. 16. It was agréed that deteiner of Euidence is no plea in an Action of Dower vnlesse it concerne Inheritance discended Et siâ— videtur ibidem saith Brooke that if it concerne inheritance though it be not the very land whereof Dower is demanded the plea is good 9. Edw. 4. to plea of Charters deteined the Demandant answered veies cyâ—le fait prâ—â— dower the Court reading and perceiuing it to bee the déed c. gaue iudgement for Dower 14. Hen. 6. fol. 4 The Tenant pleaded detinue of a chest with two fines and other Charters ê‘ Martin Iustice if the Chest were open he ought to declare euery déed specially by it selfe and so it is likewise in action of detinue for a Chest open with euidence quod curia concessit 2. Hen. 7. fol. 6. Is set downe the reason why the certainty of euidence deteined must bee showne viz. That the Iury may be more able to make their verdict and the Court to iugde to whom they appertaine for if they belong to the Defendants purchase he is put to a Writ of detinue And 6. Eliz. Dyer 230. sée a man seised of foure acres soccage land and of one déed or Charter concerning those lands by his last will in writing deuised thrée of his acres to his youngest sonne in fée the fourth acre to his wife for life the remainder to a stranger in fee hâ— died his wife got the déed entred into her acre and the sonne into the three acres deuised to him the woman brings a Writ of Dower for a third of these thrée acres The sonne pleads detinue of the Charter which if she would deâ—â—uer he is and alwayes had beene ready to render Dower shee shewed the whole cause by way of replication vpon that the other side demurred It seemeth saith Dyer that this plea serueth for none saue only the Barons heire and for no land but that which is descended And not for the heire himselfe if he come in by voucher or â—s Tenant by receipt in default of Tenant for life Where hee is no more but tenant per admittance for such a one cannot say that he hath béene toutes temps prist a render Dower si c. Neither can gardian in chiualry haue this plea for he cannot haue a writ of detinue of the heires euidence And this plea is a bar for no lands but those which the Charters deteined do concerne 22. H. 6. Where Newton saith the reason of this barre is because the euidence being séene and looked into may yéeld matter to barre the Demandant of her Dower for such lands therefore as the Charters doe not touch Dower shall be granted of them this plea notwithstanding Also certainty must euer bee alleaged in this case if the euidence bee not in some bag boâ— or chest sealed or locked vp And note the Defendant supra was not named heire by the demandant neither had he inabled himselfe to this plea as heire therefore the Court might take it indifferently As in a quare impedit if the incumbent bee named Clericus the Court takes him for a Disturber if hee inable not himselfe as incumbent or person impersonée Another fault was found in this Tenants conclusion of his plea because hee said vncoâ—e prist a render Dower but in very déed hee relied not againe on the condition if the Demandant would deliuer the Charter according to the ancient booke of entries And at the last iudgement was giuen pro dote Sée Sir Edw. Cokes 9. Rep. in Anna Beddingfelds case 1.
That the Charters ought to concerne the land whereof Dower is demanded and not other lands descended to the heire 2. He that pleads that plea ought to shew the certainty whereof a certaine issue may be ioyned or that they are in a chest or box sealed which import sufficient certainty whereof certaine issue may be taken and in both cases action of detinue may be brought by the heire 3. No stranger although that he bée Tenant of the land and hath the euidences conueyed vnto him may plead in a Writ of Dower deteiner of Charters but that plea is only in prinity for the heire of the husband Also the heire shall be in the degrée of a stranger in fiue cases First if the heire hath the land by purchase Secondly if the heire hath deliâ—eâ—ed the Charters to the wife Thirdly so the heire be not immediate vouchee namely by the Tenant in the Writ of Dower but by his vouchée Fourthly if the heire comes in as vouchée hauing no lands in the County where the land is demanded Fifthly if he comes in as Tenant by receit And Gardian in Chiualry may not plead deteinement of Charters for hée may not conclude his plea if the Demandant will deliuer to him the Charters c. for the Charters which concerne the heritage of the heire shall not be deliuered to the Gardian as it is adiudged in 10. Edw. 3. 49. SECT XI Deteining of the heire AS the heire only may deteine Dower for deteining of euidence so the Gardian in Chiualry onely may deteâ—â—â— Dower for deteining the heire and that he may plead and conclude qÌ„ il ad en touts temps prist for the ward belongeth to him If a widow eloigne the infant or heire of her husband though some other body haue him by her deliuery yet the Gardian in Chiualry may detaine Dower except shee can redeliuer him to the Gardian in as good plight as hée was at the time of the eloigâ—ment that is vnmarried if he were eloigned vnmarried But a woman nourishing her owne Infant the sonne or heire which her husband left her if a stranger clauning as Gardian fake him from her the right Lord shall not detaine dower for this cause But if a woman take and remoue the heire from the place where hee was nourished at time of the Barons death Now if a stranger wrongfully take him from her the true and right Gardian may detaine dower And this matter is pleadable by Gardian in Chiualrie though hée come into Court by reason that the heire is vouched to be in his ward for by right the custodie of the Infant can appertaine to none but to him vnlesse it be by his grant or agréement Certaintie is required in pleading of this detainer aswell as in the other viz. that she which demandeth dower hath eloigned or detained I. S by name son or daughter W. c. 22. H. 6. fol. 16. 2. H. 7. fol. 6. SECT XII Possession in the Demandant 39. Ed. 3. 17. DOwer was demanded a third part of a carue of land the tenant said the demandant her selfe was seised of a third part of it already Iudgement de briefe per Knyuet it was no good plea without shewing who assigned it or that she recouered it For if shee were in by disseisen shee must haue dower of the other two parts remaining neuerthelesse by which the tenant was chased to answer for the two parts 7. oâ— H. 6. 33. 34. In action of dower against tâ—â— one said he had assigned rent out of the land six shillings and eight pence annuall to the demandant for terme of her life which she accepted c. The other pleaded touâ—s tâ—mps prist c. The assignment was holden a good plea c. the demandant said she neuer agreed Now per Strange she was to recouer a moytie maintenant though the other plea were not yet tried for this was a confession of one and pleader in bar of the other 2. H. 4. fol. 7. A Lady sued in Chancerie to be endowed of diuers Mannors which were her husbands where the heire was in gard of the King as was found by the Diem clausit extremum there returned and because it appeared that King Richard had committed wardship of the lands and body of the heire till full age of the said heire to her by patent without foreprise or mention of dower shée was ousted of dower per agard de toutes les Iustices till full age of the heire simile 11. of H. 4. in case of the Lady Arrundell Fitzherbert saith likewise If a woman take a lease for yeares of land whereof she is dowable she shall not sue for Dower during these yeares Nat. br 149. c. Bracton propoundeth to be considered what shall be done when the widdow brings her Writ of Dower vnde nihil habet and yet it is so that she hath part of her Dower already If saith he it be proued or she cannot deny it cadit breue and she shall not recouer the residue but by Writ de recto de dote Therefore let her accept no part of her Dower before she purchase her Writ and let it containe all the Deforcers be they in one Countie or in many When they are so put together if now she accept any thing of her Dower without Iudgement the acceptation of part shall be no exception against her for she may confesse satisfaction for that part If peraduenture shee haue already taken part of her Dower from some one person before the obtaining or purchase of her Writ let his name and the summons for him be in the Writ notwithstanding and then if it be obiected she hath accepted part shee may acknowledge that hee hath satisfied her for his part and whether before or after suit is not greatly to be stood vpon But if he of whom she receiued part be not named in the Writ she cannot against the obiection of acceptance reply that the land which she accepted is not in the same Towne but in another For vnde nihil habet in the Writ non debet referri ad villas sed ad dotem It is nothing worth therefore to say she hath nothing in tali villa if she hath any thing nomine dotis wheresoeuer it be it is not then materiall And when a woman replyeth nihil habet her defence shall not be per legem that is wager of Law but per patriam Likewise if a woman plead that she hath nothing nomine dotis but by some other title as ratione custodiae huiusmodi Inquisition may be in the Countie where it is supposed shee receiued Dower to finde whether shée haue any thing in Dower of the tenements which were her husbands and if shée had and now hath not to enquire what is become of it this was a Norâ—â— case of Holda the late wife of W. in Trinitie Terme 4. H. 4. as Bracton in his fourth Booke 13. Chapter and fol. 312. relates vnto me SECT XIII Ne
to be recouered after the first day of December next comming in the forme aforesaid should appertaine to enter into all and euery of the Premisses and peaceably to possesse and enioy the same in such manner and forme as he or they should haue done if no such discontinuance warranty or recouery had beene had or made And if any of the said husbands and women or any other seised or that shall be seised to the vse oâ— them of the estate afore specified after the said first of December doe make or cause to be made or suffer any such discontinuance alienations warranties or recoueries in forme aforesaid that then it shall be lawfull to the person or persons to whom the said manors lands and tenements should or ought to belong after the decease of the woman to enter into the same and to possesse and enioy them according to such title and interest as they should haue had in the same if the woman had béene dead no discontinuance warranty nor recoueries had as against the said husband during his life if the discontinuance alienation warranties and recoueries he hereafter had by or against the same husband and woman during Couerture and espousals betwixt them â—â—â—uided that the said women after the decease of their said husbands may reenter and enioy c. according to their first estate And ouer this it is enacted that if the woman at the tune of such discontinuance alienation recouery warranty c. besole that then shee shall bee barred and excluded of her title and interest in the same from thenceforth and the person or persons to whom the title interest and possession of the same should belong after the womans decease shall immediately after the discontinuance alienation warranty and recouery enter possesse and enioy the same Manors Lands c. according to his or their title Prouided that this Act extend not to auoid any recouery discontinuance or warranty after the forme aforesaid heretofore had made or suffered but only where the husband and wife or either of them now being aliue or any other to their vse now haue title and Interest to the said Manors c. or take the issues and profits to their vseâ— Prouided also that this Act extend not to any recouery or discontinuance where the heire next inheritable to the woman or â—e or they that next after â—er deatâ— should haue estate of inheritance c. 〈◊〉 〈◊〉 or agréeing to the reâ—â—uerieâ— where â—he same assâ—ent and agréement is of record or inrowled Prouided also that it shall bee lawfull to euery woman being â—olâ— or married after the death of her first husband to giue sâ—ll discontinue c. for terme of her life only after the course of the common Law SECT XXXIV The Expâ—sition BEfore this Statute if Tenant in Dower had aliened in fée with warranty and dyed the warranty discending vpon him in reuersion had barred him for against collaterall warranty of Tenant in Dower or for life the Statute of Gloucester cap. 3. determined nothing Lâ—â—â—â—eton fol. 164. He addeth that if the heire were vnder age both at time of alienation and also when the warranty discended hée should hee at no preiudice by this collaterall warranty But if he wore vnder age at time of the alienation and came afterward to full age during the womans life and neuer entered then perchance hee should be barred This was Law when Littleton wrote and had continued so aboue two hundred yéeres and during the raigne of nine Kings after the making of Glocester cap. 3. which Statute Dyer comparing with the later he reputes the last cruell against women for by this Aâ—t of 11. Hen. 7. all alienations recoueries releases and warranties of Tenant in Dower or â—oynture of the husbands lands are of no strength And where Glocester alloweth Tenant by the curtesie to alien with warranty and assets this from women is cleane taken away this he saith is vn case fort dure That if a woman â—oyntresse in taile whose warranty is lincall to her heires doe aliâ—n and leaue assets yet the heire may enter Therefore hee is of the minde that this Statute being rigoroâ—s of it selfe ought to receiue a streâ—t and litterall interpretation fol. 148. But Stamford Browne Brook eâ—poâ—â—ded these words giuen by the Ancestors to bée intendible of all manner of assurances for money or otherwise There are two Cases in Plowden that inâ—ued great Argraments vpon this Statute The first is betwixt Winibishe and Falboâ—es a man enfâ—offed diuers persons to the vse of himselfe and his wise in speciall taile before the Statute of 27. Heâ— 8. of vses and after the Statute the husband died a stranger recouered in a formedone per ment deduc the first day by couin and vpon false tiâ—le he to whom the title appertained after the womans death entred and the entry waâ— adiudged lawfull though hee could not haue Iudgement for a default in the pleading and that was want of certainty in his replication and not shewing how he was heire or the party to whom the entry was giuen by the Statute The greatest matter vpon the Statute obiected to inforce a proofe that the widdow which suffered the recouery was not bound by this Act was that she held not ioyntly with her husband any lands or tenements but only shée was seised of an vse in taile for they tooke it cleare on all paâ—ts that the case came into consideration as if the Act of 27. had not béene made and that seemes to bee directly within the letter of the Lawes But Montague chiefe Iustice shewing how greatly the marriage of women and their aduancement by it is respected in Law as appeareth by the Writ of â—aâ—â—a matrâ—moâ—iâ— proloâ—â—â—i and the â—â—i ante diuâ—rtium taken by equity of West 2. cap. â— and also by that that where donées in frankemarriage are diuorced the woman shall haue all the lands aâ—â—irmeth it to bee reason against such women thus fauored and who abuse such fauors as the Law bestowes vpon them and will be of Couin and Faâ—â—ity to impaire their deceased husbands inheritance and disinhe it their heires to construe this Law for their coâ—â—â—â—tion for the Law-makers of the statute were bent extremely against them though it be penall in some sort oâ—it selâ—e And so it was agreed that if the widdow were not within the words yet she was within the intent and meaning of this Statute The other case was this betwixt Eiston and Stud. Baron and Feme leâ—ied a fine of lâ—nds of the wiues inheritance taking backe an estate in taâ—le the remainder to the right heires of the wife the question was whether the woman after her husbands death might alien without danger of this Statute adiudged that she might because shée was cleare without the intent and meaning of the Act For whatsoeuer the words import the matter that this Statute aimed was and is to restraine women which haue Ioyntures procéeding originally from their husbands or
the husbands Ancestors that they should doe nothing preiudiciall to the heires But in this case there came no Ioynture from the husband but contrariwise the wife had made a Ioynture to her husband and after his decease to bridle the woman to doe what shée listed with her owne inheritance were against all reason and as farre from any affinitie with 11. H. 7. as it should be when a woman seised in Fée simple giues lands to the father of him whom she intends to marrie to the intent that he regrant this land to his sonne and her after marriage with a remainder in taile c. to restraine her when after marriage regranting and death of the husband she should leuie a fine to other vses or suffer a recouerie which case though it be cleane out of the Statute yet it is within the words for the â—oynture was made by the Barons Ancestor though not originally c. And so note those two cases of Plowd one is taken to be within the intent though out of the letter and the other though within the letter yet out of the intent and yet both constructions most reasonable and iust And see Sir George Brownes case Sir Edw. Cokes â— Râ—p that a lease made by a woinaâ— tâ—nant in taâ—le of the gift of her husband c. make a lease for thrée liâ—sâ— that is not warranted by the Statute of 32. H. 8 and although the lease be without clause of Warrantie yet it is within the Statute of 11. H. 7. for those words in the act with warrantie refer to releases and confirmations which makes no discontinuance without warrantie for the inteâ—t of the Act is to proâ—ibit not onely euerie barre but â—ueriâ— manner of discontinuance which puts the heire to his reall action And in that case it was resolued that if the issue in taile had before the womans for feiture granted his remainder onely in that case hee by the exâ—resse letter of the Act shall enter vpon the discontinuance of the woman for his act doth not biâ—de his estate But when the issue in taile leuie a fine with praclamation in the life of the woman tenant in taile c. that shall binde the taile and therefore there the Conusée shall enter for hée which hath the immediate title interest or inheritance at the time of the for feiture shall enter by that Statute And it was said by Anderson Chiefe Iustice of the Common Pleas that where it was inâ—ented for to makâ— euaâ—â—â—ne out of the Statute that if such a woman tenant in taile accepts a fine sur conusans de droit come câ—o c. and by grant and renders the land for a thâ—usand yeares that is an alienâ—tion within the intention of the Act although the words of the Act are discontinuance aliâ—nation c. and of that opinion was Wâ—ay Chiefe Iustice and Dyer and all the Court of Commoâ— Pleas was of the same opinion 18. Eliz. And in Sir Edw. â—okes 3. Rep. Lincolne College case It was resolued that if the heire in taile conuey the lands to others and the woman tenant in taile release or maks conâ—â—râ—nation with waâ—rantie which is not but to perfect and corroborate the estate which the heire in taile hath made such a warrantie is not restrained by the said Act for that which the woman hath done is for the benefit of the heire and not for his preiudice and by his aâ—â—ent And she and the heirâ—â—â—ight haue iâ—yned a fine and so barre the estate taile not with standing the Statute of 11. H. 7. therefore such Acts by the woman shall not be void to grant the hâ—ire or any else any aduantage by the Statute of 11. H. 7. And note the opinion of Sir Edw. Coke in the said case of Lincolne College that the sonne borne after shall by this Statute out the daughter who entred for forfeiture and â—â—ewâ—â— other opinions concurring yâ—â— in Dyer 21. Eliz. 362. the heire in such a case is said to be in by purchass And note Reader that it hath â—â—â—ne adiudged that although the Déed of conueyance and assurance of the womans Ioynture or estate dâ—therpresse her marriage portion as well as her marriage to â—e the cause and consideration of such Ioynâ—urâ— or â—statâ— yet if the estate prâ—â—éds from the husband or his Ancestors she is within the said â—tatute of 11. H. 7. and sâ—e Villers and Beauâ—â—â—ritâ— case 4. Mar. 146. But â—â—â—uâ—râ— if the portion money appeare to be the full price of the land if that differ not the case Sée Sir Edw. Cokes Comment vpon Littleton 365. These â—ases put a man seised in Fee leuie a fine to the vse of himselfe for life and after to the vse of his wife and of the heires males of her body by him begotten and had issue male and after he and his wife leuied a fine and suffered a common recouerie the husband and the wife died and the issue male entred by the Statute of 11. H. 7. and the entrie was â—olden lawfull and yet this caâ—e is out of the letter of the Statute for she neither leuied the fine c. being sale or with any other saue her husband who made the Ioâ—â—ture Sed qui â—aeret iâ— littera â—aeret in cortice and therefore this case being within the 〈◊〉 of the Statute is within the remedy But 〈◊〉 〈◊〉 that this case was deâ—yed for Law by the Râ—â—â—rder oâ— London in his argument in the case hereunder 〈◊〉 betweene Copland and Pyat Another case in Sir 〈◊〉 Cokes Commentaries vpon Littleton which agrée with Eiston and Studs case in Plowd is A man seised of land â—ure vâ—oris and they two leuie a fine and the 〈◊〉 grant and render the land to the hâ—sband and wife in speciall taile the remainder to the right heires of the wiâ—â— they haue issue the husband dieth the wife taketh another husband and they two leuie a â—â—ne in Fée the issue entreth this is within the letter of the Statute and yet is out of the meaning because the state of the land 〈◊〉 from the wife so as it was the purchase of the husband in letter and not in meaning But where the woman in â—â—nant for life by the gift or conueyance of any other â—â—â— alienation with Warrantie shall binde the heire at this day The case of Copland and Pyaâ— adiudged Hillar 7. Car. in Banâ—â— Regis in effect was thus I. S. his sonne was to marrie to the daughter â—â— I. N. And the Deed 〈◊〉 that I. N. for thâ— consideration of foure hundred 〈◊〉 paid by I. S. and of a marriage c and for the 〈◊〉 of the bloâ—â— of I. N. coâ—enants to stand seised to the vse of the sonne â—â— I. S. and his daughter whom the 〈◊〉 of I. S. should marrie â—â—taile the remainder to another 〈◊〉 of I. N. thâ— remainder to the hâ—ires of I. N. 〈◊〉 dieth hauing issue and the wife alieneth by 〈◊〉 〈◊〉 〈◊〉 was resolued that it was not within
the Statute of 〈◊〉 7. notwithstanding the foure hundred pounds paid by â—â—â— husbands father for the â—â—nd â—rst moued from 〈◊〉 〈◊〉 father and the presermenâ— of the bloâ—â—â—â— I. N. 〈◊〉 〈◊〉 intent that the husbands heires should not 〈◊〉 〈◊〉 but the wiues And the Bishop of Exâ—â—tors case 〈◊〉 that case cited which was that in consideraâ—ion 〈◊〉 〈◊〉 to the woman and seruice done by the man 〈◊〉 〈◊〉 gaue the land to them 〈◊〉 â—â—◠〈◊〉 to 〈◊〉 of the Bishop it was â—â—â—â— to be 〈◊〉 that the 〈◊〉 〈◊〉 after her husbandâ—â—â—â—th had no 〈◊〉 within 〈◊〉 said Statute of â—â— H. 7. but that she might self it 〈◊〉 â—â—nger of the Statutâ— SECT XXXV What Actions concerning chattells doe suruiâ—e a widdow I Hâ—ld it good wisdome for a widdow and for all persons to haue greatest care of matters of greatest moment and not to contemne the lesser Now that â—â—â— haue doâ—e with matters of Francktenement we will see a little in what Actions concerning Chattels reaâ—â— or personall duties a widdow may be Plaintiffe or Defendant to make an end of reckonings begin before or whilst she was a wife Iâ— Feme couert deliuer Déed to I. S. she may haue Action of Detinue for the Déed after her husbands decease for though the deliuerie were voyd betwixt I. S. and the Baron yet it is good betwixt I. S. and the wife if the Baron dye 3. H. 6. 50. If a lease be made to Baron and Feme for yeares and the Baron die the wife shall haue the terme and if the Lessor out her she may haue Action of câ—uenant 47. Ed. 3. 12. If a man be bound to Baron and Feme in Statute Merchant the Baron alone may make de 〈◊〉 〈◊〉 e and by some opinion the Auâ—â—â—â— quert la must bée against â—â—â— alone but if he doe not release c. the Statute suruâ—â—â—th to thâ— wife and she may sue execution executor â—â— my And per Finch the Law is all one of an Obligation and a Statute Likewise in a plea of land if Baron and Feme recouer the land with dammages and the Baron â—â—â— his wife shall sâ—e for dammages and not his Executors So likewise by Bâ—lknap If an Obligation be made to Alice the wife of Robert this is a good Obligation and Alice and Robert may ioyne in an action vpon it and if Robert die before he haue released for â—e may 〈◊〉 release it Alice alone shall haue the Action 48. Ed. â— 12. simile 7. H. 6. fo 2. Sée the Commentaries of Sir Coke vpon Littleton fol. 350. It is said that Chattels reals of a mixt nature namely part y in possession and partly in action happening during couerture if the wife haue her husband she shall haue them by the Common Law as if the husband be seised of a rent charge rent seruice or Secke iure vxoris the rent incurreth during couerture if the husband dye the wife shall haue the arrerages and â—â— of an Aduowson of the Church during couerture sic de 〈◊〉 And in those cases the husbands shall gainâ— them by suruiuership but for arrerages or auoydance of the Church before marriage the husband could haue â—â— help by suruiuership and so of releases But now by the Statâ—te of 32. H. 8. cap. 37. By suruiuership the husband shall haue the arrerages as well incurred before the marriage as after If an Estray happen within the Mannor of the wife if the husband dye before seisure the wife shall haue it fâ—r that the propertie was not in the wife before seisure But as to personall goods there is a diuersitie 〈◊〉 a propertie and a bare possession for if personall goods be deliuered to a woman or if she finde goods or if goods come to her hands as Executrix to a Baylâ—ffe and taketh aâ— husband this bare possession is not giuen to the husband but the Action of Dâ—tâ—â—ue must be brought against the husband and the wife If Baron and Feme make a lease for yeares and the Baron die the wife may bring an Action of waste 22. H. 6. 24. If an Obligation be made to Baron and Feme and the Baron die the widdow may haue the Obligation 4. H. 6. 5. Quaere for the booke is not so cleare as Brooke makes it the woman was Obligée with her husband 〈◊〉 sued as Executrix Generally where title or cause of Action is giuen 〈◊〉 woman before marriage or during marriage and the husband releaseth not c. the Action suruiueth when â—â—â— dye But there may be a release in land as well as in fact iâ—plied as well as expressed And therefore the case is 8 Ed. â— Br. Dâ—â—â— 156. and cite Plowâ— 184. in Woodward and Darcy his Case If a man be bound to a woman and to another and the Obligor marry the woman all the obligation is extinct although the wife ouer liue her husband or although shee dyes â—wing the other obligee for either of the obligées hath power to release and that inter marriage is a release And gifts in Law of the chattels of the wife as well reall as personall are outlawry or attainder of the husband If a man marry with a woman executrix and then release to Creditors all manner of Actions generaly this extendeth to his proper accords and to those which his wife hath either in her owne right or as executrix Baron and feâ—e â—0 in Brooke Sée Brooke coueâ—onâ— 6. Action of couenant was brought against Baron and Feme lessées of a Manor for terme of life rendring 20. â—i per annum and they were bound to the Plaintiffe that hée should haue such surety for his rent as his Councell deuised the Counsellers deuised the Assurance and the Defendants refused to make it it was ruled for Law that if the Baron died nothing should bind his widdow saue onely the lease and reseruation if shee agréed to the lease post mortem viri And shée shall bee charged with payment of the rent or double it or pay fine â—◠〈◊〉 paenae or hold it subieâ—t to reentry according as the lease was made But a collaterall couenant as that the lessor shall distraine in other lands for his rent or a couenant to charge the lessées persons in twenty pound for non payment c such like agréements binde not the widdow when the Baron is dead and the Writ abilted Note that widdow is a good Addition to bee put to the Defendants name many originall Writ of Action personall appeale or inditement wherein exigent â—eth c. According to the Statute â— Hen. 5. cap. 5. And 14. Edw. 4. fol. â— Bâ—arkey demanded of the Iustices in the 〈◊〉 chamber if an Action were brought against a 〈◊〉 〈◊〉 was neither maid wife nor widdow what addition should be giuen her some say she should be called single woman and there it is doubted whether seruant â—ee a good addition or not for it was no addition by the Common Law as some said Wée are past the
second branch of the Statute shall bee expounded father or mother after the death of the father And it was resolued in that Case that there bee two manners of custodies or wardships the one by the Common Law the other by the Statute And that also at the Common Law there are foure manners of Gardians namely Gardian in Chiualry Gardian in Soâ—age Gardian in nature and Gardina for nurture and now the Statute makes a new Gardian namely by assignation but the mother in that case cannot be Gardian for nurture because her daughter was past 14. yéeres of age But she had the custody of her within the prouisâ—on of the Act â—ure naturae and the assent of Raph Ratcliffe the mothers husband was not materiall for the custody of a child is an inseparable incident to the parent and marriage may not transferre that to a husband And that was resolued that although the issue was whether Elizabeth had the custody of Martha at the time of the contract and that did appeare that shee departed from her mothers house six houres before the contract yet in iudgement of Law her mother had the custody of her at the time of the contract And that was resolued that in that Case Edward Ratcliffe and Martha his wife had good title to the land against Andrewes and his wife for the one daughter as that Case is shall not take benefit of forfeiture of the other for the statute giues the forfeiture to the next of kin to whom the inheritance should descend or come after her decease during the life of such person that so shall contract matrimony so that first hee ought to be of the bloud and secondly to whom the inheritance should descend or come c. and although the wife of Andrewes bee of the bloud yet in that Case by the death of Martha the land if shee hath issue shall deseend to her issue and if shee hath not issue that shall reuert to her mother c. but iudgement was against the Plaintiffe for that the issue was found against him These are the Lawes whereby rapes and rauishments of women are repressed which if they bee well looked vnto will proue that there is now no cause why lying Lâ—onicus Chalcondilus should be beleeued who writing of Englishmen affirmeth that we haue no care what becomes of our wiues and children That in our peregrinations and trauels wee interchange and vse one the others wiues mutually That we count it no reproch by whom soeuer our wiues or daughters bee got with â—hild That with vs if a man come to his friends house hee must lye with his wife the first thing that he doth vt deinde benigue hospitio accipâ—arur And though some of the last recited Lawes were vnmade when Chalcondilus did write aboue one hundred yéeres since yet there were then Lawes enough to proue him a déepe lyer and had hée â—éene in England to haue trussed him vp too perhaps for lechery had his learning steaded him no better than his honesty this is no lesse cause why I should be thus bitter against Chalcondilus a dead man for that it may séeme he wrote by hearesay nullo odio gentis and in other matters hee reporteth honourably of vs. But it is strange that a man writing not a great while since but euen the other day not at Athens neither at Rome or Reams where they vse to belie vs head and foot but here at London should be bold to wrâ—te and put in print matter to this effect That beggers and the poorest sort of our women we doe vse to punish and to whip them when they are taken for leachers and dishonest liuers But Gentlewomen and Ladies of honour and worship they are neuer pâ—nished for incontinency but rather for their amorous wantonnesse and lubricity the more estéemed and magnified This follow deserueth plainly better to bee hanged than to bee beléeued For neither is it true that any womâ—n with vs can better her reputation by dissolute life and manners Neither can any woman learne a more deuillish lesson than so to be perswaded And seeing the Lawrs themselues declare what detestation they haue of bruitish concupiscence by punishing consent with lâ—sse of inherâ—tance I would I could perswad all women to eschew not only these gulfes but also the ecclesiasticall Censures which I meddle not with together with the â—â—â—â—my which they purchase sometime with outward laâ—â—â—â—iousnesse from the report of them which iudge a careâ—â—ssâ— liberty in behauiour an infallible argument of sensuality whereby some men haue béene imboldened to offer â—orâ—â— because they thought it was expected SECT XXIX Appealâ— of rape NOw let vs consider a little how these Lawes 〈◊〉 to bee put in practice if any virgin widdow or â—â—gle woman be rauished shee her selfe may sue an Appeale of rape prosecute the feâ—on to death and the Kingâ—â—â—â—don as it séemeth cannot helpe him If a Feme coâ—â—â—â— be rauished shee cannot haue an Appeale without her husband as appeares 8 Hen. 4. fol. 21. But if a Feme â—ouert be rauished and confent to the rauisher the husband alone may haue an Appeale and this by the Statute 6. Rich. 2. cap. 6. The husband that this Statute speaketh of which may sue the Appeale must be a lawfull husband in right and possession for ne vnques accouple in loyall matrimony is a good plea against â—im 11. Hen. 4. fol. 13. So doth Iustice Stanford affirme the booke to proue without question and that the Law is so too where Appeale is brought by Baron and Feme Brooke abridging the case 11. Hen. 4. séemeth to incline to the contrary opinion The case at length is thus Thomas Hausegle sâ—â—th Appeale de rauishment sa feme against Thomas V. and others according to the Statute 6. Rich. 2. reheaâ—â—â—â—â— in his Declaration the order of the Statute and that they had rauished her against the forme of the said 〈◊〉 The Appellâ—â—â— said the Plaintiffe had another Writ hanging returnable the same tearme of the same rape and because the Writ was not serued he had obtained a sicut alias Ergo this Writ of the same nature should abate Haâ—â—said he might pursue which Writ â—e would And by their writ a Praecipe quod reddat or an Assise for the like cause shall abate for of one land a man cannot haue two recoueries But in this case it may bee there were two rapes at seuerall times c. and also the first Writ was not entred in the roll nor the â—â—cut alias in the Record then the Declaration was challenged as insufficient because it was â—elonice rapuit and not carnaliter cognouit but to that it was answered that felonious rape implied carnall knowledge for rape without such knowledge is buttrespasse Another exception to the Declaration was that two had rauished as principall c. which Rolfe said could not be therefore the Plaintiffe ought to haue declared against one as principall and against the other as accessary or
father of Elizabeth William Venor dyed without issue and Elizabeth being sole seized was afterward rauished by Iohn Worth which after that hâ—â— had married her was indited of rape and tooke â—anctuarie at Westminster Elizabeth his wife being there with him was aduised to disassent and to part from him to saue her inheritance which she refused to doe and was afterward brought before the Councell in the Star-Chamber being there demanded if she assented or not and shée answered that Iohn Worth was her husband and she would not forsake him whereupon the issue of Robert Babbington Robert being dead entred vpon her land by the Statute of 6. R. 2. which willeth saith â—rookâ— if any woman assent to the rauisher that he to whom the land should descend reuert remaine or escheat may enter And though it were contessed that there was another person more neere in bloud to Elizabeth than was this issue of Robert Babbington yet because he was next in remainder his entrie was lawfull But Elizâ—beth did â—ust him and hâ—â— brought an Assise Then to proue the assent it was giâ—en in â—uidence that she had married him assenting to him as well in Sanctuarie as before the Councell And for Elizabeth it was alleaged that the espoâ—saâ— and all the assentings were by dures and force and for feare of the rauisher which might not be called assenting for none consenteth but frankly voluntarily and sans féare Quod videtur Lexibidem But in the end because shée might haue disagréed before the Councell and did not her assent was holden voluntarie and the Assise passed for the Plaintiffe And it was agreed for Law that if title of entrie into lands be giuen to a daughter by force of this Statute and she entreth that she shall retaine and enioy them notwithstanding the birth of any sonne Posthumus comming afterward though he be more néere or worthy of bloud And so it is generally where the entrie is giuen by Statute but if by Common Law adiscent bée cast vpon a daughter which entreth shee must giue place to a sonne borne afterward It was remembred in this case that in former time a woman being rauished after she had continued seuen yéeres with the rauisher and had borne him a childe escaped from him and sued in Parliament in the time of H. 6. against him till he was attainted And being demanded how she could now say that she neuer assented hauing conceiued c. shee answered that her flesh consented to him but her soule and conscience did euer abhorre him 5. E. 4. fol. 58. SECT XXXVIII The Statute 18. Eliz. cap. 7. I Am at the end of my voyage but before I take shore I will â—hew you how our late most excellent Law-giuer renowned Quéene Elizabeth whose vigilant care hath alwayes béene that all her people might liue vnder her in peace and without oppression hath giuen strength and perfection to the former functions of other Princes to make them a firme bulwarke against all manner of iniurers that possibly might oppresse women and I can but maruell that when so daâ—â—ablâ— a crime â—â— rape had giuen so often to the whole Realme such cause of bitter complaint and men in sundry ages had beaten their braines so carefully in finding out remedy against it how it was possible so long space together to leaâ—e such a priuilege to him that could read the blessed Psalmâ— of Miâ—erere c. that though hée had rauished the fairest Lady in the Land hée might almost goe away without touch of breast for it Therfore the eightéenth of Quéene Elizabeth for repressing of felonâ—ous rapes and rauishments of women and of felonious Burglaries it was enacted that they which were found guiltie by verdict or by confession or outlawed of or for such felonious Rapes or Burglarie they should suffer death and forfeit as in cases of Felony had béene vsed by the Lawes of the Realme without allowance of priuilege or beneâ—â—t of Clergie Further that they which were in other cases to haue benefit of Clergie should immediately after burning in the hand according to the Statute in that case prouided be forthwith enlarged by the Iustices and not be deliuered to the Ordinarie But yet that the Iustices before whom the Clergie shall be allowed may detaine such persons in prison for correction as long as they shall think conuenient so it be not aboue a yéere Then because in the fourtéenth yéere of her Maiesties reigne as you may perceiue in Dieâ— fol. 304. in the case of a Scot which had rauished a girlâ— being not past seuen yeeres old the Iustices were in doubt whether rape could be of a childe of such tender yéeres not yet nine yeeres old and therefore they went not to iudgement of the Scot though by euidence of diuers Matrons he seemed guiltie this Statute ordaineth that if any person vnlawfully and carnally know and abuse any woman childe vnder age of ten yeeres euerie such vnlawfull and carnall knowledge shall be felonie and the offender being duly conuicted shall suffer as a Felon without allowance of Clergie And as M. Lambard and M. Crompton doe both of them note it is not materiall whether she consent or no for the Law adâ—udgeth her vnable to consent at so tender age The last prouiso of this Statute is that they which are admitted to their Clergie shall answer to all other manner of felonies whereof they haue not formerly béene acquited conuicted attainted or pardoned as they should haue done if as Clerkes conuicted they had béene deliuered to the Ordinarie and made their purgation SECT XXXIX The Statute 39. Eliz. cap. 9. LAstly because this exemption of Clergie was leuelled onely against Burglaries and felomous rapes by violence and of the antique Faulkoners fashion leauing vnto couetous rautshers by abduction and I might say by insinuation the benefit of their Booke by reason whereof diuers maids widdowes and wiues had of veriâ— laâ—â— dayes béene first carried away and then defiled married c. It was enacted at the first Parliament begun Ann. 39. of the late Quéene Elizabeth That whosâ—euet shall be conuicted or attainted of or for any offence made felony by the Act aboue specified 3. H. 7. or which being indited or arraigned of or for any such offence shall stand mute or make no direct answer or shall challenge peremptorily aboue the number of twelue shall in euerâ—â— such case suffer death without benefit of Clergie prouided that nothing in this Act contained shall extend to take Clergie from any person or persons which â—â—â— not either principals or procurors or accessaries before the offence committed SECT XL. The Conclusion THus haue I sailed betwixt the capes of Magna Charta and Quadragesima of Queene Elizabeth collected the statutes principally belonging to women conioyning customes cases opinions sayings argumeuts iudgements and points of learning of like sort and subiect dispersed in our Law books now comming to take hauen God grant I may fall in at port Grace and good acceptance of all that shall read what I haue gathered they which are lesse learned than my selfe in this studie which I accompt to be those that haue but newly taken acquaintance of Littleton may spend some tâ—me here not without some fruit and profit They that are better learned than I into which company some may crowd that perhaps might bee challenged of intrusion will giue mee no thankes for my paines Rather I must thanke them if they vouchsafe to read them without open scorne and bitter censuring but they to whom my trauels are chiefly addressed are women so many as beare the title of honest women how good and vertuous soeuer they be I sâ—e not how they can scape the taint of ingratitude if they giue not a reasonable fauour and applause to my good intention and labour whereby things behoouefull for thâ—m to know are laid plaine together and in some orderly connexion which heretofore were smoothered or scattered in corners of an vncouth language cleane abstruded from their sex Which concealement because it seemed to me neither iust nor conscionable I haue framed this worke admonishing them not to take it for so strong and substantiall a péeâ—e as London bridge is whereon you may boldly set vp great builâ—ings but I willsay to you as Littleton said in his Tenures to his sonne There â—ée some things in these Bookes which are not Law yet euen those may enable you the better to vnderstand the reasons and arguments of Law and to conferre and enquire what the Law is amongst the sage Masters thereof FINIS
the Statute as also what lands are subiect to the Statute as also what lands are subiect to seisure aswell of the husbands lands as of the wiues If that were reason saith Fitzherbert a womans inheritance might be seised too Et semble a moy the King cannot grant marriage of his widdowes as he may of his wards for a widdow may remaine sole without penalite or paying for it by Mag. Chart. cap. 7. But Stamford includeth that a widdow endowed oâ— lands holden in capite by the Kings Committee or husbands heire though vnsworne is not freed from marriage sans licence for she is presently as soone as she is endowed tenant to the King and not to the heire which is in reuersion yet only the heire is he which shall haue action of waste against her but if trespasse bee done vpon the ground she may haue a writ out of Chancerie supposing entrie vpon the Kings possession And Auowrie to bee made by the King resteth onely vpon her as holdeth Wood 1. H. 7. fol. 17. and 4. H. 7. 1. Now note that Endowment in Chancerie is of such strength that be it by wrong or by right it cannot be auoyded by plea without suit in Chancerie And if it bee too little the woman must stand in her owne harmes that hath once attempted it in Chancerie bee shee within aâ—e or of full age as appeares 18. Ed. 3. fol. 29. If any office bee trauersed because the land is holden not of the King but of some other Lord who therefore hath an Ouster le maine vna cum exitibus yet Dower which is already assigned remaineth vndefeated till another suit be made in Chancerie to auoid it Yet in this case because Admeasurement is no preiudice to the King of whom the land is not holden the Lord that tendreth trauerse may haue a Writ of Admeasurement at yâ— Common Law And the heire may haue Admeasurement of Dower assigned by his Ancestor But an Abator cannot haue Admeasurement neither can Gardian in fait haue Admeasurement vpon assignment by Gardian in droit nor if the heire were at full age at his Ancestors death and died his heire being within age can the Gardian haue Admeasurement but where a woman is endowed in Chancerie and afterward the heire or some other for the King surmiseth eâ—cesse of value it may bée admeasured beginning with Scire facias as Fitzherbert hath taught supra and fol. 249. â— If the husband had l 〈…〉 in diuers Counties by reason whereof diuers writs of diem clausit extremum were awarded after his death into euerie of those Counties the widdow cannot be endowed till such time as all the writs be returned into Chancery If after she is once endowed in Chancerie her Dower be recouered from her by any title she hath no remedie but to remoue the record of this recouerie into Chancerie and then vpon the first record which sheweth that she was endowed and vpon this other of recouerie she shall haue Scire facias reciting both the records against him which is tenant of the two parts to reseise them into the Kings hands and so to bee newly endowed but not to recouer any dammages though dammages were recouered against her Lib. 43. Assisar Pl. 32. for by the latter part of the Statute Prerogatiue cap. 4. It séemeth the King hath lost his prerogatiue and that he is bound by West 1. cap. 22. Note that woman Ioynt purchaser with her husband is not within this Law to fine for her marriage when she becomes a widdow say I therefore well fare a Ioynture SECT VIII Suit for Dower at the Common Law THus we haue séene how and when a widdow muâ—â— fâ—â— for Dower in the Châ—â—â—erâ—â— viz. when either her husband died the 〈…〉 tenant in capâ—te or by â—nights seruice his heire vnder age or otherwise tenant to some other â—hole lands are in the Kings hands by vacancie or nonage of the heire But if the husband which held in Socage or by â—nights seruice not of the King did giue or alien any manâ—â—r of way his lands or were disseised of them or died sâ—isâ—â— of them The widdow if by simple demand she cannot obtaine her Dower to bee assigned her may haue a wâ—â—t of Dower Vnde nihil habet at the Common Law against him which is tenant of the Franktenement by the old Nat. breuium this writ is maintainable against him which hath possession of the land by what manner soeuer or against the Gardian in Chiualrie in this or like forme Rex Vâ—cecomiti c. command A. to render to B. which was the wise of C. â—er reasonable Dower quae ad cam contingit de libero â—enemento quoâ— fuit praedict C. sometime her late husband in D. vnde niâ—iâ—â—abet vnde queritur quod A. ei defortiat c. nisi fecerit B. fecerit tâ— securum de clamore prosequendo c. summoneas A. vt sit apud WestmÌ„ ostensurus If the Dower were ad ostium Ecclesiae or ex assensu patris or otherwise there is mention made of it in the writ In London there may be a writ from the King to the Maior and Sheriffes in these words Quod Iusticietis A. quod iuste â—â—ne delatione secundum consuetudinem ciuitatis nostrae London redd ' B. quae fuit vxor C. rationabilem dotem c. Et Iusticietis D. quod iuste c. whereby appeares that a widdow in London may haue a writ of Dower against seuerall tenents by seuerall Iusticies as well as at the Common Law seuerall Precipes against seuerall tenants all in one writ the Processe in the Common Place is summons Grand cape pettie cape in the Common Place this writ of Dower vnde nihil habet must be returned into the Kings Court Et per grand reason saith Britton cap. 10. 4. For if two or more women should striue euerie of them affirming her selfe to be the lawfull wife of him which is dead not minding to be buried with him as is the corse in India but to get a third of his lands This must be tried by Certificate from the Bishop vnto whom if any but the King should write for the deciding of debate it might fall out to be all in vaine because none hath power but the King to compell the Bishop to make Certificate In the next Chapter Britton sheweth that if the Tenant vouch to warranty one which appeareth according to summons the Plea shall proceed betwixt the Plaintiffe the Warrantor or Vouchée the Tenant keeping seisen till the Warrantie be determined Then if the Garrantie cannot be denied nor the womans right disproued if that which she demandeth were certainly assigned to her for Dower from her husband shee shall recouer against the Tenant Et le renant le value But if the demand bee of no other than reasonable Dower the woman shall recouer in value against the Warrantor and the Tenant shall hold his land in peace If so be
this Warrantor be vnder age yet the Law fauoureth widdowes so much that the plaint shal not attend his full age Therefore if the Tenant shew forth any Charter Déed or speciall cause whereby the Court may perceiue that the Infant is bound to Warrantie by the Ancestors act he shall answer presently what age soeuer he be of And though the Infant in ward be aliened by his Gardian or Gardians from hand to hand this shall not preiudice the Voucher for alwayes he shall vouch to warrantie the Heire and not the Gardian who is bound to present his ward so vouched in Court without difference whether it be one or many parceners Thus saith Britton and 48. Ed. 3. fol. 5. agreeth that he which voucheth an heire vnder age must vouch him in ward de vntiel If he be a ward it is said there also that hee which voucheth an heire at full age must shew a Déed quaere But when the lands are in the Gardians owne possession to his owne profit and vse the writ of Dower must â—ée brought against the Gardian and not against the Infant 46. Ed. 3. fol. 19. Where Mowbray saith where an Infant is vouched in ward of the King the woman shall recouer Dower maintenant 3. H. 6. fol. 17. It was agréed per curiam that in Action of Dower if the tenant vouch the heire in the Kings ward within the same Countie where the writ is brought the Demandant shall not recouer before the warrantie be determined but the Law is contra if the Voucher had prayed summons in another Countie for then the Demandant should recouer maintenant yet by the Register fol. 7. if in a writ of Dower the tenant vouch in Durham the Demandant shall abide triall of the warrantie and not recouer presently But by Fitzherbert for a rule in titulo Voucher if the tenant vouch in a forraine Countie shee shall recouer maintenant and neuer attend triall of the warrantie but when Voucher is in mesme lâ— countie If the heire vouched to warrantie aftâ—r â—hee hath appeared and countâ—â— pleaded the warrantie or before appearance being lawfully summoned do 〈…〉 ke default the Defendant shall haue execution against him maintenant if hee haue lanâ—s within the Countie Brooke Dower 5. And also Dower the 6â— when the heire is vouched in the same Countie the woman shall recouer against the heire Dyer 3. Eliz. â—â—â— In Dower the tenant vouch the heire in the same Countie who co 〈…〉 as one that hath nothing by descent in â—ée and renders Dower the tenant auers that he hath assâ—â—â— by descent qu 〈…〉 if he should not say in fée for by Weston and Browne if the lands be in taile it doth not 〈…〉 the tenants lanâ—s And the opinion of the Court was that the Demandant shall haue Iudgement presently aga 〈…〉 the heire if he hath lands c. and if not against the tenant and that before the issue of the assâ—â—s tried 1 Ed. â— fol. 24 In a writ of Dower against Tenant for life if he vouch his Lessor which is heire to the husband the woman shall recouer against the Tenant and he ouer against the Vouchee But when the heire iâ— vouched by Charter of his Ancestor the Demandant shall 〈…〉 couer against the Vouchee and the Tenant shall hold 〈…〉 peace Yet in a Writ of Dower against Lessée for 〈…〉 e of the Barons demise if the heire bee vouched to Warrantie though here the reuersion which is the cause of the Warrantie were made by the Baron the Demand 〈…〉 shall recouer against the Tenant and he against the heire If the tenant vouch in a writ of Dower and the Vouch 〈…〉 counter plead the Warrantie the woman shall recouer maintenant though in other actions it bée otherwise 46. Ed. 3. fol. 25. and 49. Ed. 3. fol. 23. In a Writ of Dower the Tenant vouched himselfe to sâ—â—e the 〈…〉 taile 2. H. 4. fol. 18. in Dower the Tenant vouched the heire Processe went on to sequatur sub suo periculo sicut alias the Vouchée came not it was awarded the Demandant should recouer against the Vouchée if hee had lands in the same Countie If not that shee shall recouer against the Tenant and hee ouer in value But first it was examined if the Vouchee were heire to the Baron 21. Ed. 3. fol. 30. In Dower the tenant voucheth the Barons heire in ward of the demandant per cause de nurture shewing the Ancestors Déed he was compelled to plead in barre because now the woman might be endowed De la plus beale for Gardeine pur nurture hath alwayes intendment to Soccage tenure Vide Brooke Dower 42. 5. Ed. 3. The fathers wife was endowed the Grandmother brought a writ of Dower against her â—he vouched the heire in reuerston the Demandant recouered against the tenant and shee against the heire a third part of two parts remaining but not in value Sée Brooke Dower 79. If the Grandmother die the mother may enter into the first dower and the heire into the second SECT IX Plees in a writ of Dower ADmitting there were no Voucher let vs run ouer other matters vsually pleaded 14. H. 4. 33. in Dower was demanded a third part of two mils of other lands yâ— tenant asked Iudgement of the plaintiffe for they were during the whole time of couerture but the â—â—te of two mills viz. toâ—ts 38. Ed. 3. fol. 13. In a writ of dower against one as Gardian of land and heire of K. de R. the defendant answered that the Infants father was â— de R. Iudgement del briefe and if the writ were good hee was ready to render dower You cannot said Knyuet plead to the writ render dower both at one day so the demandant praying Iudgement seisen was awarded her And because she auerred that the defendant was not touts temps prist to render dower an Inquest of dammages was awarded and that execution should cease till the Inquest were past 13. Ed. 4. fol. 7. In action of dower the tenant pleaded touts temps prist de render Dower vncore est The demandant said that I. S. her husband died seised and that such a day and yeere she required the tenant to indow her at Dale which refused c. he replyed that at the same day he offered to goe with her to the lands and to assigne her dower but she refused sans ceo that he refused The Court held the Issue well taken by this speciall pleading But if hee had said generally and barely hee refused not some thought it had not beene sufficient insomuch as it denies not the request Bryan said the demandant here might not haue seuerall Iudgements of one thing for note shee was to recouer dower vpon the first plea but all the other Iustices were of opinion cleere that shee should haue Iudgement of Dower maintenant and 18. Ed. 3. In action of Dower Iudgement was to recouer dower with an inquest for dammages As in a Quare