eldest dye having issue a sonne though this issue be heire to B the other sonne after the death of Alice shall have the land as néerest of blood and by Greene and Seaton if there had béene severall issues of divers sonnes and daughters to the devisor when the remainder vested it should have gone to them all But here because the daughter of him had issue a daughter when the tenant for life died and there was not issue of any sonne at the instant to take from her or with her this Daughters Daughter shall have all and though there came an after borne sonne of any of the brethren she may detaine all c. for a remainder vested is not like to fée simple discended to a daughter where a sonne Posthumus may enter And if lands be letten for life the remainder to the right heires of I. if I. dye having issue a son which entereth after the death of the tenaÌ„t for life then dieth his son shal have nothing because he was not capax at the fal of the remainder likewise where there is a brother sister lands are let for life to an estranger the remainder to the right heires of the brother if he and the tenant for life die the sister may enter and retaine the possession and fée though the brothers wife bee afterward delivered of a sonne in like sort did the remainder rest in the child of Maâ—d in Eliz. viz. which recovered by award 30. Assi p. 47. But where there is father and sonne which sonne purchaseth and dieth without issue and an uncle entereth if two yeares after the father hath a sonne by the mother of the purchasor this sonne may enter and put out the uncle and the reason of Law is that hée that comes in by purchase must be capax at the time when the purchase vest in him but in case of discent it is not so requisite Perk. in his Chapter of devises saith that if a devise bée made to a colledge which is not a colledge at the time of the devise it is a void devise although afterward it be made a colledge upon the same reason is Dier 13 Eliz. 303. of a devise to an infant in ventre sa mere And where a man dieth seised and his daughter entereth c. a son borne afterward may enter but it is not so in case of purchase c. for if a woman consent to a ravishor her daughter and heire enter by the statute 6. R. 2. ca. 6. the son Posthumus shall not put her out no more shall he where a daughter and heire entereth for condition broken and where a daughter hath a villain by discent which purchaseth she entereth into the perquisits an after borne sonne her brother shall have that which discended viz. the villien but not the land these cases hath Brook Discents 58. out of the Doct. and Student 5. Ed. 4. fo 58. in the case of Elizabeth Venor agreeth concerning entry made by 6. Ri. 2. And so doth Hales and Mountague in the case of Wimbish and Talbois yet Mountague Chiefe Iustice taketh there a learned difference if a man devise land for life the remainder to the right heire male of the devisor the heires of his body c. now if the devisée for life die and a woman which is heire generall to the devisor entereth and hath afterward a sonne the sonne shall never out the mother in whom is vested the inheritance for want of other persons to take the falling remainder per le melior opinion 9. H. 6 yet he saith the cases of ravishment possession of a brother abatement of a bastard c are all to bee understood of fée simple for where the entry gaineth but estate taile one may beate the bush and another take the bird so if a man seised by discent from his mother make a feofment with condition c. and die without issue if a woman heire on the father side enter for condition broken an heire male or female on the mothers side may oust her Plow c. fo 56. a. b. 57. a. West 1. ca. 22. THen West goeth on with heire females that so soone as they come to the age of fourtéene yeares if the Lord for covetousnes will not marry them yet he shall not kéepe their land above two yeares after they have accomplished 14 within which two yeares if they be not married by their Lord they may take action against him for their inheritance to recover it without paying any thing for the custody or for marriage If so be that of their proper malice or through the mischievous counsell of others such women refuse convenable marriage offered by their Lord he may in this case retaine their land untill they be of 21. yeares and longer untill he shall receive the value of their marriage Littletons words upon this statute in his 2. booke cap. 4. BY Littleton if tennant by service of Chivalry die his here female being 14. yeares old or more the Lord shall have custody neither of the land nor body for at that age a woman may have a husband able to doe knights service but if such an heire be under 14. and unmaried at the time of her auncestors death the Lord shall have ward in her land untill she be of 16. yeares age West 1. cap. 22. which getteth the Lord 2. yeares to tender marriage without disparagement and if during these two yeares the Lord tender no such marriage shee may enter and oust the Lord. If such an heire female be married under the age of 14. in the life of her ancestor which ancestor dieth before she accomplisheth 14. yeares the Lord shall have no more but the wardship of her land till shee be 14. yeares old and then her husband with her may enter into her land and put the Lord out for this is out of the Statute because the Lord may not tender marriage to her that is already married for before the Statute of West such an heire female that was under the age of 14. at the death of her ancestor and had atteined afterward to the age of 14. yeares without any tender of marriage by her Lord made unto her might well enter into her land and put out the Lord as appeareth by the rehearsall and very words of the Statute which as it séemeth so saith Littleton was made altogether for the advantage of the Lord. A suspition of Littletons error NOw saving Mr. Littletons inspiration I am greatly afraid that ye shal not finde by the text of the Statute That an heire female being under 14. at the death of her ancestor might by the common law before this Statute enter and oust her Lord as soone as she had accomplished 14. yeare of age without tender of marriage The law perhaps was so but this Statute proves it not Againe I doubt Littleton was deceived in taking this Statute to be all for the advantage of Lords yet it is
else to haue brought seuerall Appeales whereunto was answered that it two or twenty goe and come together to commit any felâ—ny as robbery or murder though one of them onely commit the Act yet all the rest are principals A third exception against the Declaration was that the Plaintiffe had not shewed how his wife assented after the rauishment and the Appeale was giuen by Wâ—st 2. to the Baron and Feme and not to the Baron alone by the Statute of Rich. 1. But this exception also was disallowed because the Count had recited the whole purueyance of the Act and the rauishment was contra formam c. Last of all the Appellées pleaded that long time before the espousals betwixt the Appellour the woman supposed to be rauished one of the Appellées had affianced the same woman after which affiance the Appellour married her at a certaine Church against her will after which marriage whereunto she neuer agréed she came of her owne accord to the Defendant who had now married her so that the Appellour and she were neuer coupled in loyall matrimony This manner of pleading was said to be a conâ—ession both of the first marriage and of the rauishment which the Councell would haue taken by protestation But â—â—â—scoigne told them they might not haue protestation to proue them guiltie of felony Therefore the Defendant pleaded generally Ne vnques accouple c. which the Plaintiffe accepted of his owne accord and a Writ was awarded to the Bishop But all mens opinions seemed to be that this was no good plea because the Statute is that the husband shall haue the Appeale though they agréed that when the Action is by Common Law as an Appeale De morte viri ne vnques accouple is a good plea for no woman shall reuenge her husbands death by Appeale vnlesse shee were wife as well in right as in possession The Statute of Richard giueth the Appeale where the woman rauished hath no husband to her father or next of bloud c. which is vnderstood vt supra where the woman consenteth to the rauisher for otherwise the woman her selfe must pursue the Appeale vpon West 2. cap. 34. for the father cannot haue by the Common Law either Appeale of rape of his daughter or of death either of son or Daughter But it séemeth that by this Statute if a woman be next heire to her which is rauished and consenteth she may haue an Appeale of rape against the rauisher as well as any procheuie heire male may And learne If a woman which is rauished dye and her husband takes another wife whether hée may now haue an Appeale or no. It is said that if a Lord rauish his Nief she cannot haue an Appeale of rape against him but the King may punish it by way of Indictment SECT XXX Within what time Appeales of Rape must be commenced BY Bracton Si virgo sit corrupta oppressa conâ—â—â— pacem Domini Regis she ought to goe straight way Dâ—â— idem factum recens est and with â—ue and Cry complaine to the good men of the next towne shewing her wrong her garments torne 〈◊〉 and then she ought to goe to the chiefe Consâ—â—ble to the Coroner and to the Viscount and at the next Countie to en er her Appeale and haue it enroâ—led in the Coroners â—oll and then day was to bee giuen her till the comming of the Kings Iustices before whom she was againe to re-intreat her Appeale and if she varied from the Coroners roll she lost her suit Briâ—ton tieth the commencement of this Appeale to fortie dayes after the fact agreeing with West 1. â—ap 13. But by this Statute saith Sâ—aâ—ford rape was but trespasse insomuch therefore as it is since made felony by another Statute and no time limitted within whiâ—h the suit shall be begâ—n it séemeth a woman is at choyse to bring it when shée listeth so that shee exceed not time reasonable SECT XXXI Wiâ—hin what Countie Appeale of Rape shall be brought APpeale of rape must be brought within the Countie where the rauishment was committed and if a man take a woman against her will in one Countie and leading or carrying her into another Countie he there rauisheth her the Appeale must bée where the rauishment was committed and though the Declaration be of taking in another Countie yet the triall shall be onely where the Writ was brough Titulo vâ—sâ—e in Fiâ—zherbert 28. And it séemeth that to speake of the taking in another Countie in a Declaration of Rape is but surplussage and more than needeth for it abates not the Count if it be left out But perhaps such a leauing out in Action of trespasse would abate the Writ because the Plaintiffe is to recouer dammages for the taking in another Countie and they of the Countie where the Writ is brought cannot assesse dammages for the taking But in this Appeale there is nothing to be recouered but onely that the offâ—nder sâ—ffer death for his offence SECT XXXII The Declaration in Appeale of Rape 47. E. 3. fol. 14. IS a good forme of Declaration in this Appeale where in a Writ of Appeale of rape the plaintiffe counted how she was in Gods peace and the Kings such a day such a yeare and in such a place and the Defendant came feloniously and as a Feion againâ—â— the Kings Crowne and dignitie then and there did râ—â—iâ—â—â—er and carnally know her and that shée did pursue him from Towne to Towne and from Countie to Countie till he was taken at her suit and that A and B. were at the same time and place in force and aid of the same Felon c. And if the Defâ—ndant will this deny she is ready to proue it as the Court shall award that a woman ought But know that the seuerall Statutes haue made two seuerall formes of Appeales of rape one vpon the Statute of West 2. and in that there needs â—â— mention of any Statute But in the other which is vpon the Statute of Richard the vse is alwayes to recitâ— the Statute in the Declaration and that the words Contra formam statuti implyeth sufficiently that the woman hath consented to the rauisher SECT XXXIII Pleas to the wâ—it PLeas to the Writ may be many as false â—atine or want of â—orâ—â— or that the Plaintisse hath another Writ hanging of the same feâ—ony as is sâ—ewed you before â—â— the other Appeale And 5. H. 6. Fol. 1. Exception was taken against the Writ â—â— Appeale of â—apâ— because it was ad respoâ—dendum the Plaintiffe seâ—undâ—m formam staâ—â—ti c. Whereas it ought to haue béene Vnde eum appellat secundum formam statuti Whereunto it was anâ—â—dred that the Statute of 6. â— 1. giueth not the Appeale for that is by the Common Law but he must answer according to the Statute which outeâ—h â—attaile for the Statute saith Ad duellum vadiandum non recipiatur issint le briefe bone Another exception was taken against the
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
45. Edw. 3. is contra But severall tenancy or non-tenure is no plea in a Nuper obiit for the priuity of blood But a sister may claime by purchase and disclaime in the blood and this is a good plea. If one coparcener die leauing issue a sonne which sonne infeoffeth a woman in all the land c. then marrieth her now cannot the other percener haue a Nuper obiit against the baron feme But she may haue a mordancestor in her owne name and in the name of the seisure which the father had the day of his death for that amounteth to a dying seised see Novel nat br 197. c. SECT XVII Of the writ of right de rationabili parte THere is also another Writ called a writ de recto de rationabili parte that neuer lieth but betwixt priuies in bléed as betwixt brothers in gavell kinde or betwixt sisters nephewes nieces c. It is also for lands in fée simple as where the ancestor leaseth land for tearme of life and dieth having two daughters and after the death of tenant for life one of the daughters entreth into the whole inheritance and deforceth her sister the deforced may haue this Writ it is maintenable by two or thrée sisters against the fourth or by an aunt or niece against a sister that deforceth and this writ lieth as wel where the ancestor dyed seised as where he died not seised It is in nature a writ of droit patent must be directed to the Lord of whom the land is holden from before whoÌ„ it is remoueable by a Tolt as the Haught writ is where the ancestor dieth seised and one coheire deforceth another whether it be in gauell kinde or amongst partners at the common law the deforced hath election of this writ or of the nuper obiit But when he died not seised and a coparcener afterward deforceth the Nuper obiit lieth not The forme of this writ is Precipimuâ— to the Lord ut sine dilatione plenum rectum teneas A. de decem acris cum pertinentiiâ— quas clamat esse rationabilem parteÌ„ de libero tenemento quod fuit I. patris vel c. tenere per liberum servititum tertiae partis c. for it must be séene what rent and seruice the whole land yéeldeth to the Lord according there to shall the plaintiffe be rated in his or her writ If after the death of their ancestor two coparceners enter and the one doe then deforce the other of something appendant or appertenent to that which is holden in coparcenery she may haue a writ de rationabili parâ—e of this appendant or appertenent which shall say quod clamat tenere ad liberum tenementum If a man dying seised of lands intailed haue two daughters whereof the one entereth and deforceth the other the remedy is by formedon and neither by Nuper obiit or Rationabili parte If a sister aunt niece or cousin claime from her ancestor by feofment in fée one which should haue bin coparcener had the feofment not bin deforceth her she may haue a writ of Droit patent and joine the mise by battaile or graund assise come semble saith Fitzherbert because shée claimeth not as heire But where there is no impediment intaile feoffement or such thing all the partners deforced bring a rationabili parte against all the copartners terre-tenants for so it must bée and the heire of an heire may sue for part of the seisin of the coÌ„mon ancestor there battail or grand assise voucher or view lie not neither is noÌ„tenure any plea for the writ lieth only betwéen privies in blood finally the demand in this writ must bée of a portion certaine as of x. acres if xx discend to two sisters and the demandant if she recouer shall haue iudgement of so many to hold in seueralty SECT XVIII Of Partition NOw of Partition it may be made in diuers maners as first for example by agréement amongst two copartners or more which accord to diuide the inheritance into certaine parts of equall valew to bee holden in severalty and alwaies the part which the elder hath is called Ini ia pars though in this kinde of partition there bee no prerogatiue of primer election giuen to the eldest Another manner of partition is where they cause certaine friends to make the parts or diuision here the eldest shall first chuse then the next eldest and so succéedingly If by their whole agréement the eldest make the diuision it is said saith M. Littleton that she shall last make election which is as much to say say I as she shall haue none election at all Littleton hath another maner of alotment wherein after partition made of the lands euery part being written in a seroule and lapped vp in a bale of wax is put into a bonnet which must be holden by some indifferent body and then as wee use to choose Valintines euery partner pulleth out a part the first borne first the rest after her in degrée of ancientry and euery one shal hold her to her chance Also partition may be made in Chancery as when one copartner of full age and another remaineth in ward to the King c. in such case if she which resteth in ward at full age haue not her full part she may sue a writ of partition or Scire facias vpon the record returnable in Chancery to shew why a new partition shall not be made and partition may be of a reversion or of an aduowson Of a reuersion thus that A. shall haue reuersion of such such lands B. the reuersion of such other laÌ„ds of an aduowson that A. shall haue euery 2. 3. or 4. auoidance c. this is good without deed where partition is made of a mannor without mention of the aduowson it remaineth in common sée that case of aduowson and partition of aduowson 2. Hen. 7. 5. a. Partition by agréement of parceners is good in law aswell by paroll as by writing and if vnto two copartners there doe descend two houses whereof the one is worth xx s. and the other x. s. annually the best house may bee allotted to one copartner and she and her heires to pay to the other and her heires for owelty or equalities sake v. s. rent issuing out of her house and all this is good without writing so that the partner that shall haue this rent and her heires may distraine for the same when it shal be arere of common right in whose hands soeuer the house charged shall come and this shall be a rent charge of Common right had and receiued for equality of partition Fitzherb fol. 252. Plow 134. Partition of lands that one partner and her heires shall haue and hold them from Easter to the gule of August alone and by her selfe and the other and her heyres from August till Easter in the like manner was awarded a good partition in the time of Ed. 2.
matter but the other conclusion puts it to the Law and Courts consideration Yee sée now of what possession of Law a woman is dowable per Brian 4. H. 7. â—o 17. if the Kings ward die vnder age and the neâ—t heyre being married die before â—â—uâ—nâ—runt sued his wife shall not haue Dower But by Dâ—uers and Hussey if the Kings Tenants Heyre haue a wife and after office found the Heyre doth not enter but dieth the wife shall be endowed of the possession in Law before office for the Statute of prerogatiue cap. 13 is intended onely where the Heyre taketh a wife after office and intrudeth SECT LIX There must be in the Husband an Inheritance not cut from the Franke Tenant A Woman shalll haue no Dower in Lands whereof the Frankement and Inheritance was neuer conioyned in her husband during Couerture therefore where the Husband had but a reuersion after estate for life the wife is not dowable vnder this rule commeth one other dos de dote peti non debet And if a man seised c. take a wife and alien with warrantie and then both the feoffor and feoffée die if the wife of the feoffée bring a Writt of Dower against the heyre of the feoffor which voucheth to warrant the heyre of the feoffor and hanging the voucher the wife of the feoffée demands Dower against the heyre of the feoffée if shée bring her Writt not for a third of two paâ—ts but for a third of all that whereof her husband dyes seised she shall not haâ—e iudgement fill the first plea be determined Littleton If there be father and sonne both married and the Father seised of one acre c. dieth and the sonne entreth and dieth if now the sonnes sonne enter and endow his Grandmother which dieth his mother is not Dowable of that which the Grandmother held in Dower for of that his Father had no more in méere right but a reuersion vpon or after a Franke tenement and the Grandmother endowed was in of her Husbands possession yet if the father had in his life time iâ—feoffed the Sonne c. the sonnes wife might well haue Dower after the Grandmothers death of that very Land which the Grandmother held And if the sonnes sonne voluntarily or compulsarily â—â— Writ of Dower had endowed his mother against whom the Grandmother had then receiued her Dower and died after execution the mother might well haue entred into the land which the ailesse recouered against her Parkins 63. The Franke tenement and Inheritance may be both in a sort in the Husband and yet not sufficiently knit and vnited together to giue Dower for example the Lands bee giuen to two and to the heyres of the body of one of them if hee which hath the inheritance die first his Wife is not dowable no not after the death of the suruiuor for the state taile was not executed in her husband to all intents though the Issue in a Formedone against an abater might alleage seisin and esplees as we call them in his father Likewise if by fine sur graunt render estate be made to a husband for terme of life the remainder to I. S. his sonne in taile the reuersion to the right heyrâ—s of the husband and the fine is executed if now the Baron die liuing I. S. or any of his Issue the wife of the Cognusée is not dowable But if a Lease be made for yeares the remainder to I. S for life the remainder to his right heyres c. the wife of I. S. shall haue Dower of this estate though erecution of Dower cannot be â—asting the terme And if a Lease be to the Husband for life with a remainder to a stranger for â—eares the remainder to the Husband in â—ée the inheritance and Franke Tenement are sufficiently connexed to giue the wife Dower bâ—t execution shall cease during the terme for when an estate for yeares is more ancient or as ancient as the Inheritance which the Husband had during Couerture there the execution of Dower to the Wife must néeds tarrie the termes expiration And so it is if a man grant me a rent in fée by Indenture with Condition that the rent shall cease during the non-age of mine heyres my Wife shall not bee endowed during mine heyres minoritie What if a man that is seised in Fée-simple make a lease for life rendring rent c. and then taking a Wife he dieth the heyre shall haue this rent incident to the reuersion and it shall be aâ—ets to him in a Formedone in Descender but the wife gets here no Dower aâ—d saith Parkins a woman shall not be endowed of a rent reserued by her Husband to himselfe and his Heyres vpon a Lease for yeares 1. Ed. 6. titulo Dower in Brooke accordeth If the Law be so Dower hath lesse fauour in this case then the estate per Courâ—â—siâ— d'Angleterre But Cléere if a man take a wife first lease his Lands for yeares or for life and die now the Wife may recouer Dower of the Land it selfe and by Breton if the woman recouer the third part of Lands leased for yeares de office de iustice il serra a gard que el tertiâ— remnant les deux parties que demorent de terre iesques aâ—â—nt que il eâ—t receiue al value de le tierrâ— partie que il auera perduâ— c. But if she recouer all the Land leased from the termer he shall haue recouerie per plâ—â— de garranti either of such other Lands as the Lessor had or if he had no other of the Lands seised when the widdow is dead by sâ—irâ— facias out of the Court where the Iudgement was inrolled Note That though the Law be as is abouesaid where Lands are giuen to two and to the Heyres of one of them yet if the Husband purchase to himselfe and his wife and to the heyres of the Husband the wife may relinquish the purchase and disagree by bringing her Writ of Dower Like Law séemeth to be where the purchase is to the Baron and feme during the life of the Baron the remainder to his right heyres SECT LX. Of what things Dower is granted LIttletons ground is of Lands or tenements But a woman is Dowable also of all manner of rents which are rents of Inheritance Also of Offices as for example of a Bayly-wicke in fée a woman may haue the third part of the profit in Dower and be contributary to the charge Also at this day where the Baron hath but an vse in fée-simple or fée-taile generall vnlesse it be in case where the Husband may and doth disagrée the wife shall haue Dower and if a bargaine and sale be made of Lands to the Husband which dieth before inrolement the wife notwithstanding shall haue Dower and by the inrolement einsement it shall be indefeisable against the Vendor and the Heyre of the Vendée Also a woman is Dowable of Villaines regardant to a Mannor and if a villanie in gros a
vnques seisi que Dower c. THere are other pleas that goe to the action and verie right of Dower as Ne vnques seisi que Dower c. id est The husband had neuer any seisin or state of Inheritance where of the wife can claime Dower sée 45. E. 3. fol. 13. The tenant in Dower leased her whole estate to the heire rendring rent for terme of her life the heire died and this was adiudged a seisin whereof the heires wife might demand Dower though the first tenant in Dower were still aliue for the lease was a Surrender and if a stranger had entred immediately after the heires death his heire must haue had a Mordancester Ergo said one the wiâ—e dowable Yet marke this case â—bid a man seised c. in fée simple dies his sonne entreth and he dies the sons sonne enters and endowes his Aylâ—sâ—e she dies a stranger abateth In this case it is cleere the sons wiâ—e shall haue no Dower of the portion assigned to the Aylesse though the sonnes sonne may haue a Mordancester per Kirton Finch and Mowbray But betwiâ—t this casâ— and the other they say is great oddes for here the Grandmother endowed was in from her husâ—â—â—â— and she sonnes possession and estate howsoeuer to his â—â—ire in whom the fée rested it were not destroyed but hee might bring a Mordancester yet to his wiâ—e it was cleane adnihilate whereas in the first case the Fée and Francktenâ—ment not a whit impeached by the life of her which surrendred were perfectly conâ—â—â—ned in the Baron to whom the Surrender was made And if a râ—uersion be granted to I. S. of certaine lands per faiâ— in pais in which lands I. T. and his wiâ—e haue â—state for life which doe atturne and afterward surrender there is no doubt but I S. his wife if hee die shall hauâ— Dower though it bee indéed defeasible after death of T. K. if his wiâ—e suruiue and will vndâ—â— the Surrendâ—r whereas in our first case the Surrender is no way auoydable but the heires wife shall pay rent according to her portion per Finch â—bâ—â— 14. Ed. 4. fol. 6. Tenant by the courtesâ—e granted his estate to him in reuersion rendring rent with clause of re-entrie for non payment the Grantée married the rent was arréere tenant per le curteâ—â—e re-entred hee in the reuersion died his wife waâ—â—arred of Dower for the Surrâ—nder might well bee vpon candition 2. H. 4. fol. 22. In action of Dower it was pleaded that the Demandants husband had nothing in the land â—ut by 〈◊〉 done to the tenant Iudgement si action c. The woman shewed how her husbands father hauing two sonnes leased his land to the eldest sonne and to hiâ— wife for 〈◊〉 of theâ—r liues and that shee her selfe married with the youngest sonne the eldest died and his wife married with the tenant the father died the reuersion descended to the second sonne being her husband the tonants wife died and he kept possession the Demandants husband did put him out he re-entred she prayed seifin c. Brooke thinketh she ought to haue trauersed the Disseisin And if the Baron had not entred after the death of the eldest sonnes wife she should not haue béene endowed yet saith he 〈◊〉 if without entrie there had not beene a seising in Law and whether the Francktenement which the tenant had once in right of his wife â—e determined in puncto by her death 11. H. 4. 73. In action of Dower the Tenant saith That N. gaue the land to the Baron and his first wife for terme of their liues the remainder in taile to the tenant remainder in Fée to the right heires of the Baron his first wife diâ—d he married this demandant and then hée died and the tenant entred c. he demands Iudgement if of this estate she shall haue Dower This amounted plaine to ne vnques seisi que Dower la puit but per Hanke Thirn that plea might not serue by reason of the Fée simple in remainder which might ingender doubtâ—ulnesse a layes gentes But where a lease was made to Baron for life the reuersâ—on to the Lessor or remainder to a stranger there in action of Dower ne vnques â—eiâ—â— â—ec iâ— good for no manner of Inheritance was in the husband 11. H. 4. 83. Dower was demanded of twentie pounds rent respondetur the Baron had nothing but â—oyntly with â— N. who is yet aliue â—udgement si Dower c. and he was not compelled to shew whether he pleaded as â—ertenant or as Pernor of the rent the Demandant replyed that I. N. had released all his right in the rent â—â— her husband But becauss she shewed not the Déed of â—â—â—ease shee pleaded by aduisement of the Câ—urt seisie que Dower la puit Quaere of the generall â—ssue against the â—â—eciall matter 11. H. 4. 88. A woman shall haue Dower of rent 〈◊〉 chased by her husband in fée though hee die before dâ—â— of payment And if it be pleaded against her Ne vnques fâ—â—â—â— que Dower c. she shall not shew the speciall matter but say seisi que Dower la puit and shew the matter iâ—â—â—â—dence 22. H. 6. 4â— per Newton In action of Dower the â—â—nant plead Ioynt estate to the Baron and I. N. in plein vy whose estate he hath the demandant shall not say â—â—â—â—â— que dower c. vnlesse shee shew how or trauerse that I. N. tooke nothing by she Feoâ—ment â—9 H. 6. fol. 9. Against Dower the Tenant pleadeâ— that I. S. seised in Fée infeoffed him and hee leased to the Baron to hold at will which estate hee continued all his life time sâ—ns câ—o that he was seised of any such estate que Dower la puit the Iudges orderad that for the long continuance of the possession and dought deslais gâ—â—â— all should be entred 10. H. 6. 17. It is not a good plea against Dower â—o say the Baron had nothing but for terme of his life for this amounts to the generall 〈◊〉 Ne vnques seisi que Dower la puit But to say the Baron had nothing but 〈◊〉 ment with A. in fée and that A. suruiued c. This by â—â—â— Fée simple confessed makes a good plea. 14. H. 6. 5 6. In action of Dower the tenant said â—e was seised till by the Baron disseised vpon whom he re-entred Iudgement c. the Demandant said that before this tenant had any thing in the land W. being seised in Fée infeoffed her husband issâ—â—t seisi c. and she prâ—â—â—â— to be endowed per Martiâ— the replication is not good â—â—â— this might â—e before the Disseisin and before couerture too and if so then the Baron Ne vnques seisi que Dower la puâ—â— That yée may yet perceiue further how 〈◊〉 a point it is to take or relinquish this plea rightly marâ—â— well the case 30. H. 8. Dyer fol. 41. In a Writ of Dower the issue was Ne vnques
it is great pâ—â—ulancie in any widdow that slippeth to second wedlocke wâ—ilst she yet nourisheth in her wombe the pledge of vnâ—â—n and loue betwixt her and her late husband I thanke God I cannot say that I haue knowen in my life time any widdow so wantâ—n In old time women vsed now and then to saine themselues left with childe and to bring forth borrowed brats to depriue the Deceaseds right heire of his inheritance sometimes of their owne mischieuous malice and deceitfulnesse and sometime by consent and combining with the Lords of whom the lands were holden Bracton in his second Booke cap. 32. hath a large discourse De partu supposito and there is a Writ to the Sheriffe to call before him and the Kéeper of Pleas of the Crowne the woman that pretendeth to be enseint to haue her examined by tractation and search of good and lawfull women per vbera per ventrem whether she be pregnant or no and if the matter he found doubtfull to commit her to a Castle and warie custodie without accesse of any suspected woman Quâ—usque de partu suo corstare possit But this is a péece of learning so obsolete and worâ—e out that I thinke since I was borne and a long time before there neuer was any such Writ put in â—re I conclude therefore that our widdâ—wes now adayes are honester than they were in Henry the thirds time in the fifth yeare of whose reigne Mariell widdow of William Constable de Mauton in Comitat. N. rff practised this cousenage widdowes of this age are nothing so deceitfull though deceiued sometimes by bad husbands THE WOMANS LAWYER The fifth BOOKE THe widdow married againe to her owne great liking though not with applause of most friends and acquaintance But alas what would they haue her to haue done she was faire young rich gracious in her carriage and so well became her mourning apparrell that when shee went to Church on Sundayes the casements opened of their owne accord on both sides the stréets that bachelours and widdowers might behold her Hic trahebatur â—lle erâ—â— cunctis amor vnus habendi Her man at home kissed her pantables and serued diligently Her late husbands Physitian came and visited her often The Lawyer to whom shee went for councell tooke opportunity to aduise for himselfe If shée went to any feast there was euer one guesâ— sometimes two or thrée the more for her sake If she were at home suitors ouertooke one another and sometimes the first commer would answer the next that she was not within All day she was troubled with answering ê‘etitions And at night when she would go to rest her maid Marion was become a Mistris of requeâ—â—s and humâ—le supplications This kinde of life the widdow liked not I aske againe what she should haue done he to whom she gaue a denâ—all would not take it if shee denied him twise hee said two negations made an affirmation and hée challenged promise therefore to set mens haâ—ts and her owne at rest shee chuse amongst them one not of the long robe not a man macerate and dryed vp with study but a gallant gulburd lad that might well be worthy of her had hee béene as thrifty as kind hearted or halfe so wise as hardy and aduâ—nturous This youth within lesse than a yeere had set the Nuncios which his predecessor kept in prison at liberty round about the Countrey the bags were all empty the plate was all at pawne all to keep the square bones in their amble and to relieue Companions One of which notwithstanding that had cost hâ—m many a pound for none other quarrell but vous meâ—tes challenged him one day into the field which was appointed and there my new married man was slaine Now his wife will bring her Appeale SECT I. Appeale of the husbands death BY Bracton li. 3. cap. 29. A woman can haue an Appeale but only in two cases per quod alicui lex debeat apparens adiudicari As in case where iniury and force is committed against her person by rauishment or when her husband is killed imer Brachia iua This forme of appeale therefore is A. late wife of B. appeales â— that whereas B. her husband was at such a place such an houre such a day and such a yéere C. came with force â—equiter in felonia contra pacem regis and killed him betwixt her armes and that he did this against the Kings peace and fellonioâ—sly shee will proue and maintaine as the Court shall thinke good Againe the same A. appeales E. of this that at the same place the same yéere day and hâ—wer E. â—ame with C. felloniously and against the Kings peace and held B. till C. killed him c. If hée which is appealed de facto were taken vpon the fact with his knife or sword all bloudy and this veryâ—â—ed by Testimony of good and lawfull men non erit vâ—terius â—â—quirenâ—â—â— Thus Bracton Now let vs â—â—â— how shee shall be vnderstood there is no doubt but a woman may haue other Appeales besides thâ—se twâ— of rape or death of her husband 11. Hen. 4. fol. 9â— An Appeale of Robbery was brought by a woman the defendant said the Appealant was his 〈◊〉 iudgement si el â—erra respondue and to the robbery non culpaâ—le So that hee pleaded to the fellonie and the â—â—â—fty admitted a good plea And a woman may haue an appeale of may hem 13. Hen. 7. 14. Hussey saith it was demanded of him for a doubtfull question where parish Clarke â—ell out with another man and threw the Church â—â—re keyâ—s at him with such force that they â—â—ang out at the Chamber window and put out a womans eye whether it were may hâ—â— or no And for the euill intent of the Clarke it was déemed may hâ—â— but consideratiâ—n ought to be had in aâ—â—eâ—â—â—ng â—aâ—â—ages But true it is a woman shall not haue appeale of any mans death saue only of her husbands therefore if a man bee killed that hath neither wiâ—â— nor sonne but his next heire is either daughter sister or female Cosâ—â— albeit he hath many other â—â—â—red Eâ—siâ—s or Vâ—eâ—es the proâ—â—â—ity of a female heâ—â—e â—â—â—es away the Appeale quite and cleane for of â—â—â— Ancestors death if he had no wife the Appeale belongs ouer to the heire who here cannot haue it because it is a female for Mag. Char. doth directly dâ—ny it â—ap 34. Nâ—llus câ—pictuâ— aâ—â— imprisonetâ—â— propter apellum â—eminae de moâ—â—e aâ—â—â—â—â—uâ— quam viri sui And vpon such an Appeale brought by an heire female the Defendants cannot bee arraigned at the Kings suit because the Appeale was neuer good Neither shall the Defendants recouer dammages because as Shard maketh the reasoâ— hee may bee arraigned and condemned otherwise ad Sectam regis for any thing yet done to the Contrary 27 Aâ—â— p. 25. A daughter or sister c. can haue none Appeales of a fathers or brothers death no more can a mother haue Appeale
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—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
the woman they shal remaine ioyn-tenants of the Franke Tenement and the Inheritance is gone Tailâ— 9. But per Dyer fo 147. and 12. assi p. 22. and 19. assi p. 2. If Tenants in Franke Marriage be diuorced the Woman shall haue all the Land for the Land was giuen for the womans sake and for her aduancement and by Iohn Bracton her husband hath no more in it but Custodiam as he is the wiues tutor and Guardian By the same reason therefore that the wife shall haue the land if she be diuorced by the same I should thinke she should haue it if her Sponsus refuse to marry her But where I giue Land to one to marry my Daughter or if hee marry my Daughter there if hee marry another woman I may enter SECT XXXVI The word Franke Marriage maketh Inheritance IF a man giue lands with his Sister to I. S. in Franke Marriage habendum â—is haeredibus suis in perpetuum By Kniueâ— Mowbray and Finchden 45. Ed. 3. fo 19. this maketh neither Frank Marriage nor estate taile with an expectance of fée as in Case where Lands are giuen expresly in taile habendum eis haeredibus but the fee-simple passeth presently by the gift for Frank Marriage must be holden of the Donor which here hath nothing left in him but all is holden of the Lord Parainount and the words doe not make any other estate taile yet 13. Ed. 1. lands were giuen to one with the Cousin of the Donor in Franke Marriage habendum eis haeredibus and it was taken for good Frank Marriage This saith Brooke was in the yeare that estates taile were made in But for all that if yee look the case in Fitzherbert Formedone 63. whither Brooke sendeth you you shall perceiue that at the time of the gift it was Franke Marriage in fée-simple for by those dayes the Donee had potestatem alienandi post prolem suscitatâ—m But in a gift made after the Statute of quia emptoreâ— on such a fashion I take it the Law will be as before in the case 45. Ed. 3. According as it was also holden in the yeares of H. 8. that if a gift bee made in Franke Marriage the remainder to I. S. in fée this is no good Franke Marriage for warrantie and acquitall that are incident c. bee only in regard of the reuersion to the Donor and they cannot be had when the fée-simple is presently conueyed to a stranger SECT XXXVIII The Accompt of the Degrees LIttl accounts the Degrees from the Donor to the Donees the first Degrée from the Donées to their Issue the second from the Donées Issue to his Issue the third c. and the Issue in the fift Degrée shall doe seruice And this saith he because the Issue of the Donor and the Issue of the Donée after the fourth Degrée past may inter-marrie by holy Churches Law Bracton accompts thus donatarius facit primum gradum haeres suus facit secundum haeres haeredis facit tertium haeres secundi haeredis facit quartum qui tenebitur ad seruitium yea hee maketh it an expresse rule that onely the Donée and two heyres succéeding lineally shall enioy the immunitie of being acquitted And hee seemeth to vnderstand no other reason of the acquitall so long but onely an abstenancie from homage lest the taking of it should hinder a reuerting if it betided the Donée or the Issue to die without Issue Fitzherbert titulo droit 55. and 60. citeth 6 H. 3. and 15. H. 3. in warrant of Bractons Computation which I thinke he fetched not any further then out of the Author himselfe in whom fo 21. I find it And fo 22. hee answereth a doubt of his owne asking that is Whether all other seruice shall follow and continue if homage be done ante terâ—ium haeredem wherein he concludeth that the seruice euer followeth homage quamuis ad damnum soluentium And I conclude whether it be the third heyre or the fourth that shall doe seruice he may still vouch haue a Writ of me ne as if the fourth Degrée were not past and if he bring a Formedone the Writt shall be Dedit in liberum Maritagium SECT XXXIX A Woman giues Lands to one to marry her AS Franke Marriage maketh Inheritance without the words Heyres and is alwayes made to a woman and for her sake so there is another Donatio propâ—er nuptias that is conditionall without words of Condition made euer by a woman to a man That is where a woman giues Land to a man in fee-simple or for tearme of his life to the intent that hee marry her who if hee afterwards when hee is thereto within conuenient time required refuse c. there is now an ordinary Writt for remedy granted in this case to reduce the Land which Writt may be sued in the per cui or post after one or more alienations either by the woman sole or by her and her husband married against such a one as should haue married her after the refusall or after her death by her Heyre whether it bee Sonne or Daughter or Daughters with the child of another and there needs no scripture or writing to proue that the feoffement was for intent of Marriage nay if a woman infeoffe a stranger to the intent to infeoffe her and one which she intendeth to marrie if now the espousals take not effect she may haue Writt causa Matrimonij prelocuti against the stranger though the déed of feoffement were simple and sans Condition an 34. Ed. 3. li. assi and 40. Ed. 3. li. assi a woman enfeoffed one which had a wife and entred for non-performance of the Condition heritance of woman and in this part because it resembleth the Donations that are propter nuptias the Doctrine of it being something like that of Dower SECT XLI Marriage THis Courtesie is in the Inheritance of a Wife therefore a consequent of lawfull Marriage and exceptions of Concubinage or such like which are impediments of Dower must needs be good exceptions here SECT XLII Seisin THere must be in the wife a seisin and possession for if she were but heyre in appearance die before her Ancestor this auaileth her husband nothing Similie If the Father being seised of Lands dye and soone after his Daughter and Heyre dyeth before actuall seisin had by entrie either by the husband wife or other person for them so that no possession and a naked possession in law here is all one yea the law is taken that if a man dwell in Essex with his wife and lands descend to her in Yorkeshire if she die the next day after before entrie the husband shall not bee Tenant by the Courtesie for euen in this case is found a default in him that he did not constitute one to make entrie for him maintenant after the Auncestors death yet if rent descend to a woman Couert c. which dieth before day of payment or after the day and no
kéepership newly granted and sans fée which is a charge without gaine or vtility SECT XXXIII Estates Taile ALl estates tayle are within the equitie or compasse of this branch of 27. and the formes or species within the â—etter are but as patternes or examples of Ioyntures And therefore where an estate is limited to Baron and feme and to the Heyres Males of their bodies or to them and the heyres Males or Females of the body of one of them although this be an abridgement or amputation of one sexe from the examples within the very Statute yet it is a good Ioynture There is a Case in proofe thereof Dyer 97. 1 Marie the Duchesse of Somerset was ioynt-purchaser with her husband of estate to them two and to the heyres Males of her Husbands body betweene them begotten which is none of the fiue estates expressed in the Statute but the Iustices held cleare vnlesse it were refused it excluded Dower So is it if estate be made to Baron and Feme to them and the heyres Males which the Baron shall haue of the body of his wife vel e conuerso Or if the gift be to Baron and Feme and thrée heyres of their two Bodies which is an estate determinable vpon death of the third Issue or if it be to them and to the heyres de corpore the sonne of both of them or of one of them all these estates limited for Ioynture are good enough SECT XXXV Estate for Life c. THese words Or for life of the Wife are intendable as well for an estate made to the Wife onely during her life as of an estate made ioyntly to Baron and Feme during the life of the Wife Therefore an estate made onely to the Wife for her life or to the Baron for his life with a remainder to the Wife for her life is a good Ioynture within meaning of the Statute yet it seemeth not to agrée with the nature of a Ioynture by the etimology of the word and the Statute speaketh not of any remainder Dyer 14. 15. Eliz. fol. 387. agréeth and saith that Ioyntures may bee conditionall which if the Wife accept after the husbands death she shall be barred of Dower as where the condition is that shee shall kéepe her selfe vnmarried and saith he a Conueyance to a wife during her life in remainder after the immediate death of her Husband vpon condition reasonable may well bee intended pro iunctura yet he himselfe afterwards fo 340. thinketh that such a remainder to the wife for her life after the death of her Husband cannot bee termed a Ioynture because the Etimologie serueth not and 11. H. 7. ca. 20. 27. H. 8. demonstrateth no such Ioynture for women in possession or in vse of any estate in remainder after the Husbands death c. quaere If an estate bee conueyed to a mans Wife and to a stranger for their two liues for the Wiues Ioynture it is good enough yet the Statute mentioneth onely estates betwixt Baron and Feme And although the estate be not conueyed to the Feme by precise termes for her life yet words that amount to as much shall be of as great effect As if Lands be giuen to a wife vntill I. S. hath leuied an hundred pound or till he be promoted to a Benefice This maketh an estate for life within the branch of 27. c. SECT XXXVI Estate to the vse of Baron and Feme IF estate be conueyed to Baron and Feme to the vse of a Stranger this is no Ioynture but if it be to Baron and Feme or to one of them or to a Stranger to the vse of the Feme it is a good Ioynture and in euery limitation of vse to the Baron and Feme it is requisite that he or they that shall take the possession may be seised to an vse for if Lands be giuen to the King or a Corporation or to an alien borne to the vse of Baron and Feme this is no good Ioynture for these persons cannot stand seised to another bodies vse no more can a Rector or Parson of a Church or a Bishop vnlesse it be in respect of their naturall capacitie but a man attainted may take for another bodies vse and therefore a Feoffement to him to the vse of Baron and Feme may be a Ioynture SECT XXXVII How a Woman may haue a Ioynture and Dower and how neither Ioynture nor Dower A Woman may haue Dower notwithstanding her Iointure by the kind ouersight of her Husband or of his heyre As if a Ioynture assigned the Baron himselfe will endow his Wife ad ostium Ecclesiae or ex assensu patris Or if after the husbands death his heyre or Feoffée will assigne other Lands in Dower to her which hath a Ioynture already Or if the heyre plead to her in a Writt of Dower ne vnque seisique Dower c. or nient accouple in loyall matrimonie or any other plea saue Ioynture c. in barre of Dower for in such Case if it be found against him the woman shall recouer Dower and retaine her Iointure neuerthelesse quia volenti non fuit iniuria On the other side a Woman shall haue neither Ioynture nor Dower if by her owne folly or wrong done she haue forfeited her Ioynture As by breach of a condition annexed to her estate or doing of wast or making a Feoffement And if her Ioynture by lawfull title and without any folly in her be euicted from her yet where the heyre is remitted to another estate then that which her husband was seised of during Couerture she getteth no Dower So is it if the estate whereof Dower is demanded were conueyed to the Baron and his heyres during the life of I. S. But if it were to the Baron and his heyres for so long time as I. S. had heyres of his body lawfully begotten this estate may yéeld Dower SECT XXXVII The first Prouiso for Dower vpon euiction of Ioynture THis Prouiso is to be construed fauorably for women as the premises be in fauour of the Heire And therefore as well tayled Lands as Fée-simple are bound to render value and recompence if therefore the Ioynture euicted were to the value of twenty pound per annum and the heyre haue twenty pound per annum of Land tayled to his Father the woman shall recouer euery whit of it in recompence of her lost Ioynture for this latter and new Statute controlleth the ancient Statute de donis conditionalibus SECT XXXVIII In what case a Woman may refuse her Ioynture to demand Dower THe Statute is plaine that a woman may refuse a Ioynture made during Couerture and take her Dower or waiue Dower and rest on her Ioynture vnlesse the Ioynture were by act of Parliament c. And M. Brograues opinion was that if the Ioynture were made by other assurance and afterward confirmed by Parliament that such ratification tooke away a womans election as well as if the originall assurance had béen
greatest and most difficult part of Law peculiarly belonging to a widdow and come now to consider whether she shall marrie againe or no. If Iohn Boccace de Câ—rtaldo in his Booke De duris mulieribus may be beleeued When the sister of couetous King Pigma â—â—â— and widdow of Sycheus Hercules his Priest had built the Wals Temple Market Towne house and priuate dwellings of Carthage giuing lawes and rules of life to the inhabitants amongst the rest that were filled with loue of her great vertues and singular beautie the King of Malaca was one he grew so vehement in his desires that he threatned the Citizens of Carthage with warres and vtter subuersion of their new Citie vnlesse he might haue the Foundresse of it to be his wife They knowing how highly their Quéen would remaine displeased by any direâ—â— sollicitation to a second marriage not knowing how otherwise to saue themselues determined to win her assent without asking The chiefe of them went therefore to Dido and told her how the King of Malaca required Masters and Instructers of humaâ—â—tis to be sent him out of Carthage from whom he and his people might learne to doe off their naturall â—â—â—â—atousnesse and inciuilitie and further how hée had menaced fire sword and extreme dissolution vnlesse his request were accomplished But they knew not they said whom to send or who would be willing to goe and leaue his owne habitation to dwell with a King of such sauage nature and wilde behauiour as was this King of Malaca Dido when she heard them answered that she was ashamed there should be found in any Carthaginian such 〈◊〉 and cowardly feare affirming plainly that men were not borne onely for themselues and whosoeuer he were that would not aduenture losse perill yea and death though it were certaine for safegard of his Countrey hée was she said vnworthy to dwell in Carthage or that either he or his posteritie should euer be receiued to any honour or reputation amongst them The Carthaginians thought they had obtained their desire and vncouered their counsell to the Quéene telling her plainly the Kings demand Dido not knowing how to reply against her owne râ—darâ—utions replenished with sorrow and aâ—xietiâ— was enforced to yeeld her assent to wedlocke and craued a day before which she said she would goe vnto her husband but before thâ— terme was expired she caused a great fire to be made in the most eminent place of the Citie and there in view and concourse of all other people after many ceremonies and offering of sacrifice as it were to appease the ghost of â—câ—â—us she suddenly with a knife strake her selfe tâ— the heart and told her subiects that now she went to her husband her Sicheus her deare Sichâ—us on whose name still inuocating she sunke to the ground haning chosen rather to shed her dearest lifes bloud as she said than to violate the vowes of chaste widdowhood Boccace mine Author here may haue some colour of reason to extoll the resolution of Dido but not to condemne so bitterly as he doth all women that marrie a second husband Some of them are destitute of friends their parents brethren and kindred dwell farre off sutors câ—me euerie day who can obsist them Another widdow hath lands rents store of goods some suits at Law and no body that she can trust in help to gouerne that which shee hath or to inherit it when she is gone Another is tolled to marrie by mightie perswasions of her dearest friends and kindred Another hath 〈◊〉 youth on her side 〈◊〉 Indians leape into the dead mans fire if they will she hath learned that it is better to marrie than to burne SECT XXXVI A 〈◊〉 to marriâ— so 〈◊〉 it be not vncertaine who shall 〈◊〉 her to theâ—â—â—◠〈◊〉 I For my part that am like neuâ—r to be feared vnlesse some widdow be moued with compassion towards mée will not speake villanie of Bigamie or Octogamie let euerie woman marrie when she seeth her time but 〈◊〉 〈◊〉 〈◊〉 a slow speed perhaps will be best and let her examine well whether the pannier be emptie or no. If saith Sir Thomâ—s Smith in his Treatise De Repub. Angliae â—ol 104. I marrie the widdow of one lately dead which at the time of her husbands death was with childe and the childe is bâ—â—ne after marriage solomnized with me this childe shall be mine 〈◊〉 and lawfull sonne so precisely doe we take the letter Peterest quem 〈◊〉 demonstranâ— Littleton â—aith 18. E. 4. fol. 30. If a man marrie a woman which is groâ—â—ment ensâ—â—nt by another and within foure dayes after marriage she is deliuered this childe shall be his that hath newly married the woman and inherit his land for it is no bastard It 〈◊〉 〈◊〉 would haue it vnderstood of a woman enseint by â—â—p â—â—zard and in such cases it is reason that hee which takes the Dame should haue the Fole So â—s it also when â—â—â—man elopes with a stranger in 〈◊〉 and 〈◊〉 her husband Iohn at Noke being betwéene 〈◊〉 foure 〈◊〉 must father the â—hilde and it shall be his heire it he die for the Law will not â—â—ing into triall directly wh◠〈◊〉 the childe 44 Edw. 3. fol. 10. and â— Hâ—â— 4. 〈◊〉 â—â—â— though issue may 〈◊〉 â—â— taken whether a woman 〈◊〉 ensâ—mâ— by her 〈◊〉 â—â—â—hâ— time of his deathâ— deaâ—ing out the question by whom as appeareth by the forâ—â—â— Bookes and 1. H. 6. fol. 3. Then if it may be found by Enguâ—st that a woman was with childe at her husbands death the Law which permits not to enquire by whom affirmes it to be the husbands and that husbands which might lawfully begâ—t it I thinke â—urely â—ir Thomas Smith mistooke the Law for by Thorpe and Willowby 24. E. 2. fol. â—9 If a man dye seised of land in Fee simple and the wife which is 〈◊〉 〈◊〉 with a soâ—ne marrie againe and after is deliuered â—â—is sonne shall bée adiâ—dged sonne and herro to the first Barâ—n and not to the second Though Iustice Beâ— there were of opinion that the Infant might â—huâ—e his father It were better reason perhaps that the second husband might 〈◊〉 whether hée should be his soâ—ne or no and by allowance make him hiâ— heire Sir Ed. Coke in his Comment vpon Littleton fol. 8. a. saith Iâ— a man hath a wife and dieth within a â—erie short time after the wife marrieth againe and within nine monethâ— hath a childe so as it may be the childe of the one or the other some haue said in this case the childe may chuse his father Quia in hoâ— casâ— filiatio non potest probari and so is the Booke to be intended For auoyding of which question and other inconcemences this was the Law before the Conquest Sit omnis vidua â—ine marito 12. mensibus si marita verit perdat dorem But if women had all béene of such sobrietie as many are many of these questions had neuer risen and I must confesse
of the death of her sonne If a woman haue issue a sonne which is murdred and there is no heire to him on the fathers side by Billing chiefe Iustice Needham and Choke none vncle nor other kinsman which must coâ—â—â—y as heire by the mother can haue the Appeale because the Statute before remembred excludeth her from whâ—m they must deriue Briaâ— Littleton Nâ—ale and the chiefe Baron are contra For said they the Vâ—cle on the â—â—ther side may haue Appeale of the Nephewes death which the father from whom the Vncle must conueigh 〈◊〉 haue any more than the mother But Billing tels them the Cases are nothing like for a father may haue an Aâ—peale of his Ancestors death but so cannot another iâ— any case the bridge therefore being once broken â—d eâ—â— the meane of conueyance stopped and disabled the Appeale is altogether and for euer taken away â—7 Eâ—â— 4 fol. 1. And so is it adiudged likewise â—0 Hen. 6. fol. â—â— where there was grandfather mother and sonne the mother died the grandfather was murthered the sâ—nnâ— might not haue Appeale because hee conueyed by a woman scilicet by his mother and there it was stood â—â—â— that an Appeale shall neuer discend but hee to whom it first falleth shall haue it and if he dye the Aâ—tion dâ—â—â—â— It is a good case well argued in the booke at large Sée the booke of 11. Hen. 4. 1â— It appeares that in Appeale oâ— Rape by the husband ne vnques accouple c. nest pâ—â—â— for the husband in Act or possession shall haue that wâ—erâ— the marriage is not void and yet that plea is good in Appeale by the wife of the death of her husband for there shée shall not râ—uenge his death to whom she was not lawfully married and see 50. E. 3. 15. Brâ—â—â—on agrées with Bracton qui null â—ee puisseare appeller de felonie de mort â—orsque de mort son baron â—uâ— deins â—â—â— lâ—â—our enter ses braâ— And it is true that by the ancient Law neither woman or other person might haue appeale of death vnlesse the appellant â—â—â—â— prâ—sâ—nâ— or did sée the dead man at the tiâ—â— when hee was slaine But the Law is changed by â—loâ— cap. 9. which willeth that no Writ henceforth shall goe out of Chaâ—â—â—ry for the dâ—â—â—â— of man to enquire whether a man killed another by â—â—â—aduenture or in his owne defence or â—therwiâ—e â—eâ—â—niouâ—â—y but he shall remaine in prison till the comming of Iustices errants or gaiâ—â— deliuery and before them put himsâ—lfe to the country for triall of good and euill And if it â—e â—ound by the couâ—try that what he did was â—â— his owne defence or by â—â—sadâ—enture the Iâ—â—â—â—â—es â—â—â—ll dâ—e the King to wit and thâ— King doe the party grace â—â—luy pleiâ—â— Also it is prouided that no Appeale shall be â—â—â—ted si le gâ—â—r menâ— come 〈◊〉 aâ—â—eâ— â—uâ— if the Appeal ouâ— shew tâ—â— dâ—â—d the yâ—â—re the day and â—oâ—â—â— â—â—â—â—mps lâ—â—â—y the Towne where and the weapon wherewith the sâ—aughter was committed â—he appeale shall stand goâ—d and â—â—â—â—e appeale shall bee abated for want of â—resh â—uâ—â— iâ— it bee perâ—â—ed within a yâ—â—re and a day after the â—â—â—t coâ—â—iâ—â—â—d Before this Statute the Appellâ—nt alwayes 〈◊〉 oâ—â—â—s proper view â—ow â—â— nâ—â—ds not The 〈◊〉 â—hat â—â—â—ll â—â—ing â—his appeale 〈◊〉 be wiâ—e to thâ—â—aâ—â—◠〈◊〉 â—◠〈◊〉 〈◊〉 â—or â—â—enâ— accouple in loyall matrimony is a good plea in barre oâ— her appeale as before is said But this plea is not so perâ—mptory but that after the Bishop hath â—â—◠〈◊〉 â—â—yâ—â—ment â—ccoâ—â—â—e c. the Defendant may afterward â—â—â—ad non culpable and this in 〈◊〉 in vitâ—â— but he cannot â—â—â—ad on to the fellony immediately vpon the â—â—rst plea. Therefore here is requisâ—te two trials as it séemeth 50. â—â— â—â—â— Idem 27. 〈◊〉 p. â— Furthermore it is requistâ—e that she be sole and vnmarried married that made this Appeale for if she marrie again 〈…〉 her Appeale is gone though the new married husband be dead within the yeare and day after his death that was slaine Yea and not onely a widdow which hath an Appeale hanging abateth her Appeale and loseth it for euer by new marriage but also if after Iudgement and before execution she take an husband she loseth execution of the Iudgement 11. H. 4. fol. 48 By Brian and Hussey 2â— F. 4 fol. 72 72. If a woman pursue her Appeale till the Defendant be outlawed and then marrie she may sue execution And so did Skrâ—â—nâ— hold the Law to be in the 〈…〉 â— â— â— â—ut Gaseoâ—gâ—e Chiefe Iustice denyes it And â— or 2. Mariae Brooke Appeale 100 the Iustice of the Kings Bench did all agrée that a widdow loseth her Appeale by taking of a second husband Et idem videtuâ— saith Brooke de executione for the reason wherefoâ—â— this Action is giuen to a widdow is not as Glanuell makes it Quia vna caro est v 〈…〉 vxor For then the Baron might haue an Appeale Dâ— morte vâ—oris which is neuer granted but her heire shall haue it And if the wiâ—â— kill the husband his heire shall haue the Appeale And I hearâ— saith Stanford Pleeâ— de Coron fol. 5â— it hath been adiudged If she King pardon the woman all manner of treasons the heires Appeale is gone But the true reason why a woman hath the Appeale De morte viâ—i is because by his death shee is thought lesse able to liue and maintaine her selfe so said the Iudges in Q 〈…〉 ne Maâ—â—â—s dayes and that therefore when she taketh another husband ccâ—â—ante causa ceâ—â—at effectus and her Appeale is gone like as a widdowes Quarentine is determined when she is once remarried But where a woman continueth sole she 〈…〉 d â—â—ne other shall haue this Action either in her life or after though she dye within the yeare and before Appealâ— commenced 20. H. 6. 42. It is not requisite that the Appellant here â—e dowable of his possessions which is slaine for though a woman â—lope from her husband and neuer be reconciled yet 〈…〉 may haue Appeale of his death per Iâ—glibie 50. â— â— 15. Sir Edw. Cokes Comment vpâ—n Littleton fol. 3â— saith That if the Baron be attainted of treason c. his wife shall not be indowed and yet if any doe kill him the wife shall haue an Appeale So likewise agrées the Booke of 35. H. 6 58. where in an Appeale de morâ—â— viri the Defendant said the Baron wâ—s indicted arraigned forâ—d culpable and iudgement to be hanged c. and to the felonie nient culpable It was agréed that there is no such corruption betwixt a man and his wife by Attainder as is the corruption of bloud betwixt a man and his heire for the heire of a man attainted shall not haue an Appe 〈…〉 e and she is his wife notwithstanding the Attainder but the other is not heire And per Markham If an Appeale bee not good the Defendant shall not bee arraigned
the Law so méeke in Edward the first his time that the first Statute against Rape speaketh of it so mildly as if it had béene at Common Law a verie small trespasse SECT XXIII West 1. cap. 14. anno 3. E. 1. THe King commands that no man rauish or take by force any damsell within age either with her consent or without Nor any dame or damsell of sull age or other mans wife against her will If any doe the King will doe iustice and common right at his or her suit that shall sue within 40. dayes if none commence suit within 40. dayes the King shall haue the suit they which are culpable shall bee imprisoned two yéeres and bee ransomed at the Kings pleasure And if they haue not to satisfie the ransome they shall suffer a longer imprisonment as the trespasse shall require a man may well suspect that there was something which had allayed the rigour of former Law before this Statute was made It may bée the importation of Clergy men vrging satisfaction according to Moises Law if the woman rauished were vnmarried and otherwise the bashfulnesse of those which are betrothed and espoused kept in the truculent Law of King William Howsoeuer it were this Statute of West 1. in my poore opinion being rather affirmatiue than otherwise runneth not in fauour of rauishers to abrogate their old punishment but inflicteth a greater punishment vpon them than that which had lately béene put in practice Or it may bee very well that the common right which King Edward promised here to doe for them that would pursue within forty dayes was according to the seuerity which Bâ—acâ—on speaketh of SECT XXIV West 2. cap. â—5 THe mitigation of the old Law one way or other in a few yéeres brought forth so many enormities That at the next Parliament which King Edw. held ten yéeres after it was ordeined as followeth It is ordeined that if any man rauish any woman espoused or damsell or other woman which consenteth not afore nor after that hee shall haue iudgement of life and member And whosoeuer rauisheth any woman by force though she consent afterward shall haue iudgement as afore is said if he be attainteâ— at the Kings suit And if any woman bee carried away with the goods of their husband the King shall haue the suit for goods so carried away This Chapter conteineth also the ordinance against Elopement and another for Nunnes qui monachialem a domo suo aâ—â—ucat liâ—et monachâ—â—liâ— consentiat puniatur perpriâ—onam trium annorum c. satisfaciat domâ—i a qua abducta fuerit nihâ—lominus redimatur ad volâ—â—ratem regâ—â— SECT XXV 6. Richard 2. cap. 6. A Man would haue thought that this Statute should haue repressed for euer all violence towards the persons of women but quantos motos scies reclamante ratione Priape In the sixt yéere of King Richards reigne and about the 16th of his age this villany of rape was so encreased and women so little offended with the iniury or so ashamed to confesse the outrage that a new Law was made to punish women which consented to their rauishors vt sequitur Against rauishers of Ladies and daughters of Noble men and other women in euery part of the Realme now a dayes more violently offending and oftener than was wont It is ordained that wheresoeuer and whensoeuer such Ladies daughters or other women bee rauished and after rape doe consent â—o such reuishers that as well the rauishers as they which be rauished bee from henceforth disabled to haue or challenge Heritage Dower or Iointfeoffement after the death of their husbands and ancestors And that incontinently the neâ—t of the bloud of those rauishers or of tâ—em that bée so rauished to whom such Heritage Dower or Iointfeoffement ought to reuert remaine or fall after the death of the rauisher or of her that is so rauished shall haue title mâ—â—ntinently after the rape to enter vpon the rauisher or her that is rauished and their Assignes and lands tenements in the same heritage Dower or Iointfeoffement and the same to hold in state of Heritage And that the husbands of such women if they haue husbands or if they haue no husband liuing the father or other next of the bloud haue from henceforth the suit to pursue against the Offenders and Rauishers in this behalfe and to haue them thereof conuict of life and member though the woman after such rape doe consent to the rauisher And the Defendant in this Case shall not bee receiued to wage battaile but that the truth of the matter shall bee tried by the Country Sauing alwayes to the King and other Lords of the Realme their escheats of the Rauishers if they be conuict This is a shrewd Statute Till this time he that had rauished a woman might hope for a clemencie at the least at her hands because he had ventured his life for her sake but what shall lusty leachers now doe the more a woman is worthy to bee won because shee hath or shall haue wherewith to kéepe a man the more danger it is to medle with her She that perhaps might haue bâ—ene perswaded had this Statute not 〈◊〉 to 〈◊〉 a matter of greater astonishment then 〈◊〉 bares not now be mercifull lest shâ—e bâ—e cruell to herselfe Therefore now men looke on faire Gentlewomen heires and widdowes as the eaâ—â— looketh at a fish in the water she would 〈◊〉 â—e dealing but is lâ—th to go 〈◊〉 And now comes in the second rape by aâ—duction wherein auarice is as great an agâ—â—t as caâ—â—â—lity aâ—d something wiser in auoâ—ding of danger now men turned themselues for loues sake into Centaures first and tooke on them the shape of Buls afterward SECT XXVI 31. Hâ—â— â— cap. 9. THerefore in the 31. yâ—ere of Hen. 6. was a Statute made beginning with complaint that in all parts of the Realme diuers people of power moued by 〈◊〉 〈◊〉 cousnesse against all right and gentlenesse had 〈◊〉 new 〈◊〉 to the danger trouble 〈◊〉 〈◊〉 〈◊〉 of Ladies Gentlewomen and other women sole hauing substance of â—â—nd tenements or moueable goods 〈◊〉 then great innocency and simplicity wishing to take them by force or otherwise come to them seeming to be their great friends promising them theâ—r faithfull loues and to by great 〈◊〉 they caught them into their possession coâ—â—â—ying them into places where the Offenders were of power not suffering them once gotten into their gouernance to gâ—â— aâ— liberty till they hâ—d bound them by Obligation or Statute merchant and enforced them to marry against their owne liking otherwise they would leuy the said summe in the said Obligation or Statutes to preuent danger of forfeiture of the same Obligation or Statute or further perill to their persons The purueyance of this Statute is but a Grant of a Writ whereby to call before the Chancellor or before the Iustices of Assises in the County or before some other noble persons assigned by the Chancellor of England the persons offending
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