multiply and replenish the Earth take the joynt soveraigntie over the Fishes of the Sea the Foules of the Ayre and over all Beasts moving upon the Earth Genesis 1. In the second Chapter Moses declareth and expresseth the Creation of Women which word in good sense signifieth not the woe of Man as some affirme but with Man For so in our hasty pronouncing wée turne the preposition with to woe or wée oftentimes and so shée was ordained to bée with man as a helpe a companion because God saw it was not good that Man should bée alone Then when God brought Woman to Man to bée named by him hée found straight way that shée was bone of his bones flesh of his flesh giving her a name testifying shée was taken out of Man and he pronounced that for her sake man should leave Father and Mother and adhere to his Wife which should be with him one Now Man and Woman are one NOw because Adam hath so pronounced that man and wife shall be but one flesh and our Law is that if a feofment bée made joyntly to Iohn at Stile and to Thom. Noke and his wife of thrée acres of land that Tho and his wife get no more but one acre and a halfe quia una persona and a writ of conspiracy doth not lye against one onely and that is the reason Nat. br â—o 116. a writ of conspiracy doth not lie against baron feme for they are but one person by this a married Woman perhaps may either doubt whether shée bée either none or no more then halfe a person But let her bée of good cheare though for the néere conjunction which is betwéene man and wife and to tye them to a perfect love agreement and adherence they bée by intent and wise fiction of Law one person yet in nature in some other cases by the Law of God and man they remaine divers for as Adams punishment was severall from Eves so in criminall and other speciall causes our Law argues them severall persons you shall finde that persona is an Individuum spoken of any thing which hath reason and therefore of nothing but Vel de Angelo vel de homme fol. 154. in Dyer who citeth no worse authority for it then Callepinus owne selfe séeing therefore I list not to doubt with Plato whether Women bée reasonable or unreasonable creatures I may not doubt but every woman is a temporall person though no woman can be a spirituall Vicar Of Hermaphrodites OF Hermaphrodites I have some kind of doubts not whether they bée persons but what persons they bée If a man die seised leaving 3. children which bee all Hermaphrodites whether the eldest shall have all his land or that it bée partable as among coheires Also if the eldest bée a Hermaphrodite and the other 2. faire young Virgins which way jetteth the discent Bracton in his first Booke Cap. 7. saith Hermaphroditus comparatur masculo tantum vel feminae tantum secundum praevalescentiam sexus iâ—calescentis that is it must bée déemed male or female according to the predominance of the sex most inciting And as I remember I have read the like division Vâ— Britt Cont. sol 1678. Bracton in his first book the 30. Chapter fol. 438. where hee sheweth that a man shall not be tenant by the courtisie Si partus declinaverit ad monstruÌ„ cum clamore emitteret deberet emisit rugituÌ„ saith it is not partus monstrosus licet natura membra mâ—nuerit vel ampliaverit ut si quis habeat digitos aut articulos sex vel plures Now then if these creatures bee no Monsters but are in conjunction to take on theÌ„ the kind which is most ruling in theÌ„ this must néeds be understood in matrimony and consequently they may have heires which being granted why may they not be heires according to the prevalescence which Bracton speaketh of if I were to furnish my selfe a house I would place no picture or Image in any parlour dining or bed-chamber but it should be of good séemely and natural proportion Satyres and Centaures should come no nearer then the post at my doore And at the threshold of this my treatise or as it were a little behind the doore I will leave these deformed Children of Mercury or Venus suffering them to enter no further SECT III. The punishment of Adams sinne REturne a little to Genesis in the 3. Chap. whereof is declared our first parents transgression in eating the forbidden fruit for which Adam Eve the serpent first and lastly the earth it selfe is cursed and besides the participation of Adams punishment which was subjection to mortality exiled from the garden of Eden injoyned to labor Eve because shée had helped to seduce her husband hath inflicted on her an especiall bane In sorrow shalt thou bring forth thy children thy desires shall bee subject to thy husband and he shall rule over thee Sée here the reason of that which I touched before that Women have no voyse in Parliament They make no Lawes they consent to none they abrogate none All of them are understood either married or to bée married and their desires or subject to their husband I know no remedy though some women can shift it well enough The common Law here shaketh hand with Divinitie but because I am come too soone to the title of Baron and feme and Adam and Eve were the first and last that were maried so young it is best that I runne backe againe to consider of the things which I might seeme to have lost by the way that are fit to be knowne concerning women before they be fit for marriage SECT IV. The Ages of a Woman THe learning is 35. Hen. 6. fol. 40. that a Woman hath divers speciall ages at the 7. yeare of her age her father shall have aide of his tenants to marry her At 9. yeares age shee is able to deserve and have dowre At 12. yeares to consent to marriage At 14. to bee hors du guard at 16. to be past the Lords tender of a husband At 21. to be able to make a feoffement And per Ingelton there in the end of the case a woman married at 12. cannot disagrée afterward but if she be married younger shee may dissent till shee be 14. The age of 7. yeares when Bracton wrote this aide for making the sonne a Knight or marrying the daughter was due de gratia non de Iure and pro necessitate indigentia domini capitalis measured by the indigence of the Lord and opulence of the tenants But West 1. Cap. 35. in the third yeare of Edward 1. the Law was made certaine the Lord shall have aide of his tenants as soone as his daughter accomplished 7. yeares age-for the marriage of her Viz. xx s. of a whole knights fée and xx s. of xx I. â—and in soccage and so forth according to the rate more or lesse The King shall have this aide according to
likewise said by Davers 13. H. 7. 11. that this Statute was made for advantage of the Lords Glanvill ibro 7. cap. 12. HEare what Glanvill saith women shal be in ward vntill they be of ful age the Lord shal mary them being of ful age euery one of theÌ„ with their reasonable portion thoughthey be of ful age they shal remaine notwithstanding in their Lords custody vntil they bée married by his aduise for by the law of the land no woman heire can be married but by her Lords disposing and assent In so much that whosoever having a daughter or daughters heire or heires shall in his life time without grée of his Lord marry any of them he suffereth by the right and generall custome of the Realme perpetuall disinherison without ever recovering any thing but by the grace méere mercy of his Lord. If it be prooved that any woman holden in ward do forfit with her body she shal be deprived of her heritage her portion shall goe and accrue to her parceners And if they all offend the whole heritage shall fall as escheate to the Lord. But after such heires be once lawfully maried though they become widdow afterwards they shall no more be holden in ward nor then by their incontinency can they forfit any inheritance But yet they may not remarry without their Lords assent Thus far Glanvill Bracton his 2. Booke cap. 37. BRacton who as it may very well be gathered wrote one halfe hundred yeares after Glanvil and but very little before the making of West 1. In his 2. Booke and 37. Chap. finding it a question at what time an heire female should bee out of ward whether at 14. or 15. or at 21. acknowledgeth a greater capacity of deceipt and maturity of desire to be in women then in men And that therefore a woman might be out of ward at 14 and marry because at that age she is able disponere domui suae et habere cone et key et virum sustinere that is to order and dispose a to have the key clog at her girdle and to be a jolly stay vnto a man But this early emancipation of women heires he taketh to be onely of such as inherit laÌ„d of socage tenure for drawing toward the end of the Chapter he falleth in with Glanvil And saith of heires coparceners in Chivalry si ab initio omnes maiores extiterunt nihil ominus in custodia dominorum â—rint donec per consilium et dispositionem eorum maritentur quia sine ipsorum coÌ„silio et assensu mulier haereditateÌ„ habens maritari non potest non etiam in vita antecessorum quod si olim fecissent hereditatem amitterent sine spe recuperanâ—i nisi solum per gratiam Hodie tamen aliam paenam incurrent And presently hee sheweth the reason why they might not marry without their Lords assent viz. lest the Lord might be constrained to take homage of his capitall enemy or of a man altogether vnfit or vnworthy SECT X. How the law came to a certainty in the point of a womans being out of ward CHoose now whether ye will learne of Glanvil and Bracton what the law was in their time or of Mr. Littleton that wrote many score yeares after the making of Westm 1. In mine opinion neither did this law bring any advantage to Lords neither doth it shew that heires females oftenants in Chivalry might enter at 14. yeares neither is there any cléere proofe that the law was cléerely so taken The letter of the Statute doth not expresly give 2. yeares to tender mariage but rest raineth covetous Lords that they shall not hold the land above 2. yeres after the 14. which séemech plainly to import as it is reasonably taken both by Needh Billing 35. H. 6 that before the making of this law the age of male and female in this point tooke no difference I may be asked how it commeth then to passe that the law is so cléere in that which Littleton concludeth withall viêªt That the Lord shall not have two yeres to tender his woman ward marriage save onely where she is under 14. and unmaried at the death of her ancestor before the Statute it was either out of doubt that a daughter and heire should not be cleane out of ward at 14. or at the least it was doubted whether she should or no and the words of the Statute whatsoever Mr. Littleton saith maketh not the matter plaine enough But we have the helpe of Reverend Prisot in the Booke above mentioned 3. 5. Henrici 6. Westm 1. saith he was made in the time of Edward the first who purposing to put all the law into certainty and in writing begun to makes Bookes thereof by helpe of the most sage men of the law in this Realme Iudges and others And he made a Booke two yeares after the making of this Statute in which all the Statute is rehersed which booke goeth on and saith by expresse words that no woman shal be said to be vnder age thereby to be in ward after she is past the age of 14. Thus saith Prisot By him therefore and by other Iustices in the Eschequer chamber it was ruled cleere that where the Kings tenant in Chivalry died leaving his daughter and heire of the age of 15. yeare she should not be in ward And Billing saith for law that if betwéene the 14. and 16. yere when an heire female is in ward another ward falleth which holdeth in Chivalry of the first the Lord shall not have gard per cause de garde for the first ward is out of his power to all intents excepting onely tender of mariage And another Iustice saith if a tenant hold ofone lord bypriority of another by posteriority the daughter heir vnder 14. shal be in custody of the anteriour Lord till she be 16. but shée may enter vpon the land by posteriority as soone as shee commeth to 14. likewise if the Lord hath once maried this woman-ward after the age of 14. she may presently enter into her land for now the Lord hath had all that which to him belongeth the marriage And the course of the Chancery is to make livery before 14. cum exitibus but after 14. livery tantum vid. 4. Eliz. 213. Dyer Dyer 20. Eliz. 362. 1. Hen. 720. on livery for then such an heire is to have the profits by the law To come to an end of this matter I will not forget that even in Mr. Littletons daies very néere two hundred yeares after the making of West 1. by the last Statute that ever Hen. 6. made in the yeare of his reigne 39. ca. 2. it was established by Parliament that women being of the age of 14 yeares at the death of their ancestors without question or difficulty shall have delivery of their lands and tenements discended to them for so the Law of the land wils SECT XI A search for the true reason why a woman is hors du
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
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
by the better opinion 3. Ed. 4. â— 9. 10. such a partition is good enough if it be vpon the ground but see the bookes of 2. Eliz. Dyer 179. 18. Eliz. Dyer 350. There is also a prety case of a mill parted betwéen two brethren ioynt-tenants by an award of a third that one should repaire the mill on the one side of a certaine poste and the other on the other side imperpetuum c. which was awarded a good partition without any writing 47. Ed. 3. 24. â—9 Assi p. 1. It hath béene also much doubted whether iudgement may be giuen to hold in seuerall when in assise of nouell disseisin brought by one ioynt-tenant or tenant in common against another it is found for the plaintiffe as it is cleare it may be if the action were betwixt partners 7. assi p. 10. Herle would not haue giuen iudgement to hold in seueraltie had the parties beéne ioynt-tenants But 10. Assi p. 17. such a iudgement is giuen and no bones made of it yet 28. assi p. 35. R. Thorp in like case would giue no iudgement but generally to hold a moity per my per tont though he were besought in the Country at the assises at West again and again for Iudgement to hold seuerally 7. H. 6. fo 4. Weston glanceth on such a iudgement and Strange denyeth that it may be for it destroyeth the suruiuor But Chine saith that it may be and hath béen often the reason why the Law was more scrupulous in those points betwéene tenants in Common and ioynt-tenants then betwéen partners was as I guesse because coheyres haue their estate by course of law and the other are in either by the act of some body which made the estate or by their own doing so that though for necessity they may alien that which belongeth to them or charge it yet otherwise the Contract made by consent may not without manifest assent be vndone Bract. saith fo 206. sufficit femel voluisse nec dissoluitur mutua voluntas nisi mutua voluntare contraria It is perceiued how the law was before the Statutes 31. 32. H. 8. a summarie of which is set downe already now that it may the better in part be vnderstood how the law hath béene taken since those Statutes obserue the causes following out of my Lord Dyers Reports The puisne of thrée Coparceners of a reuersion vpon estate for life gauel-kind alieneth by a fine the lessée dieth the eldest parcener entreth into all his Inheritance the middlemost and the Alienée bring a ioynt Writt of partition vpon the Statute the eldest pleadeth the generall issue non tenent insimul pro indiviso the case appearing by the euidence it was holden vpon a demurrer cleere that the action was not maintainable for the one ought to haue her Writt by the Common Law and the other by the statute but ioyne they could not Quaere saith Dier if the entry of the eldest giue seisin to the rest that it should giue it to the stranger were hard 2. 3. Phi. Ma. fol. 12. 8. One of three Coparceners alieneth that which to her belongeth one of the other two bringeth a Writt of partition against her fellow parcener and the alienée vpon the statute because in this case she might haue had a Writ by the Common Law this Writ vpon the statute abated But if the two Coparceners had ioyned against the alienée and the one had beene at non-suite she should haue been summoned and seuered and her part beene diuided as well as the others quaere by the Register when the husband vnto one of thrée partners purchaseth one part c. he and his wife may haue a speciall Writt against the third euen so it séemeth if one of thrée Coparceners purchase a fellowes part the purchaser may haue a speciall writt against the third parcener 7. ct 8. Eliz. 243. in Dyer by Anthony Browne and Dyer ioint-tenants cannot at this day make partition by paroll out of the countie where the land lieth for 31. and 32. c. change not the law in this point But the partition must bee by Writt out of Chancery Humfrey Browne and Weston 2. Eliza. Dier 179. a man deuised socage lands to his two daughters and to the heyres of their two bodies loyally engendred and died the two daughters tooke husbands and at full age c. partition was made by paroll one husband had issue by his Wife and shée dyed By the opinion of the whole Court the other Husband and his wife shall haue the whole Land by suruiuor for partition by word onely betwixt ioint-tenants or tenants in Common of estate of Inheritance is voyd yet of a tearme peraduenture saith Dier such a partition is good enough fo 350. in Dier If ye doubt now of any thing somthing more then you did before yée are the better learned and warned to worke surely The manner of partition by Writ c. THe Iudgment vpon a writ de partit faciend if that diuision be made betwéene the parties and that the Viscount in proper person going to the lands and tenements by the oath of 12. loyall men of his Countie make the partition deliuering one part to the plaintiffe or to one of the plaintiffes and another part to another parcener c. making no mention in the iudgement more of the eldest then the youngest Sister The Sheriffe must giue notice to the Iustices of the partition which he hath made aswell vnder the seale of the 12. men as vnder his owne seale And in this partition there is no primer election giuen to any but the second may haue liuery before the eldest or the younger before either of them euen as it pleaseth the Sheriffe And this difference is betweene partition by Writ here and the other partition which is by agreement In the first the Viscount shall make to euery partner her distinct share but in the other they may agrée that one shall hold in seueraltie and the rest shall occupie that which remaineth in common Thus farre Littleton Bractons partition THere is in Bracton a large discourse of partition which I sée not why for the forme at this day should not be good if not of all other the best And this partition is by commission to men either chosen by the parties or appointed by the King as Iustices or extenders with commandement to the Sheriffe to make them come before those Commissioners or extenders tam milites quam alios legales homines nulla affinitate attingentes per quos negotium melius expedire poterit He hath also a precept to the Coroners where the Sheriffe is negligent Tepidus remissus in executione preceptorum domini Regis with a rule for valuation of an aduowsan viz. that a marke annuall to the parson shall be rated a shilling to the parcener to whom the aduowsan shall be alotted And when the extent and diuision is made euery part being written by
ordinance hath cum de communi consilio prouiso c. reciting the Statute This Statute reacheth not to the King at whose Court all the copartners shall giue their seuerall attendance suite and seruice And if any of the lands partable be holden in Capite euery Coheyre shall and must haue a part of that in her alotment for the Kings profit The statute of Ireland which is a receipt of Hâ—n 3 14 of his reigne to Gerrard Fiâ—zmorrice Iustice sheweth that by those dayes the first borne partner did alwayes homage for her selfe and her fellowes to euery common Lord of the fée who tooke all his seruice per manâ—s primogeniâ—ae which primogenita had in recompence saith the Statute no homage ward-ship or subiection of Copartners nor any thing but the Capitall Messuage ratione eineciae Glanuil which writ before the Statute saith that homage and all other seruices were done to the chiefe Lord by the hand of the eldest parcener for all the rest without guerdon from them or their heyres in the first or second degrée But by him their heyres in the third degrée were bound to doe homage and pay reliefe to the heyres of the eldest daughter c. Because forsooth as Bracton maketh the reason issue being had and continued to the third and fourth degrée the heyre of the eldest might now take homage without feare of being excluded from inheriting that which was altogether vnlike to descend vnto them But by Bracton the youngest Sister should presently doe fealtie to the eldest and by Britton who wrote after Marlbridge the matter rested méerely in the Lords election for thus saith he Election le Seignior aprendre tiels seruices per vn mayne ou per les mains de toutes les parceners Car autrement per droit les gardes marriages des auters parceners pur les parols in le briefe de gard oâ— le plaintiffe dit que launcester l'infant soit son tenant lui fist seruice de chiualer eac 68. fo 175. Now séeing that Glanuile the Statute of Ireland Bract. Britton and al do agrée that euery Lord might take his seruices by the hands of the eldest partner the reason whereof was a desire which the Law had to conserue Seignories in their intierties that Lords should not take or diuide them into mynnomes and Crotchets what was it that caused the making of this ninth Chapter of Marlebridge It should séeme that Lords in those dayes played vpon the aduantage And though they were scrupulous in taking of homage by which they were shut from succession and yet willing enough to take intirely all other emoluments incident or annext to the tenure from one paire of hands yet suite of Court which is burdenous or inconuenient to none but to the tenants they would be and were content to dissipate and it should séeme also that in puisne Sisters and Coheyres though they were easily intreated that the eldest should do all suit and seruice yet they could be well content to giue them nothing for their paines and therefore a Statute was needfull for other things I will not accuse old writers of error they erred not perhaps if they take it as it was taken by Lawyers then though that taking staggered from Lawes conformitie This I say to me the statute of Ireland is sufficient to proue that the eldest Sister shall haue no gard marriage or subiection of the yongest and neither homage nor fealty by Littl. can be taken otherwise then a seruice incident to a tenure for which it is lawfull to distraine As therefore when a Mannor descendeth to two partners each one may haue parcell of the demesne and parcell of the seruices and so of one there may step vp two Mannors And if the diuision be that one shall haue the demesnes and another the seruices the suite is now in a very haut suspention and the Mannor for a time broken in pieces but it shal be a Mannor againe if she which had the seruices die without Issue per Thiru 12. H. 4. fo 34. 35 So I doubt not but when a tenement holden by seruice military descendeth vnto two coparceners and division is euenly made each of them may pay rents and do seruice for her part to the Lord who may take fealty and homage of either of them if he will And may be compellable to take homage of one of them at the least which for the warrantie shall be auailable to both SECT XXV What seruice belongeth only to the eldest parcener to doe THere is some thing besides suite of Court that shall lie only vpon the part which by an Alcumized tearme we call einitia Fitzherbert titulo partition 18. hath this note If the Earledome of Chester descend vnto two parceners it shall be diuided betwixt them As other lands vse to be and the eldest shall not haue the Seigniory or Earledome whole to her selfe quod nota adiudged percotam curiam 23. H. 3. But this notwithstanding if law should haue the course which she had in her state of innocencie I thinke the capitall Messuage of a Knights fee and the head of an Earldome or Baronie in partition ought euer to goe to the eldest And if because there is not else perhaps wherewith to make purparte to the youngest coheyre or not any other thing holden in Capite to be distributed for the Kings aduantage and so for necessity quae nullis vinculis legum contineâ—ur the head of a Barony be diuided yet the indiuisible seruice by which it is holden is scutage and grand-serjeantie I meane the very actuall seruice falleth by right vpon the eldest parcener Et vbi est commodum ibi debet esse onus and so vbi est onus debet esse commodum whether the case following proue mine assertion or no I will set it downe out of my Lord Dyer and then prepare me to speake of another partnership Humfrey Bohune sometime Earle of Hereford and Essex held the Mannors of Harefield Newman and Whitenhurst by seruice of Constableship of England which is grandserjantie and dyed seised hauing issue onely two daughters they entred tooke husbands and the husband of the youngest became King then partition was made in which the King and his wife did choose Whitenhurst and Harefield and Newman fell to the other partner By the opinion of all the Iustices of England the reseruation of the tenure at the first was good the two daughters before marriage erercise this office by sufficient deputie and after marriage the husband of the eldest might execute alone And per omnes iusticiarios as when there are two daughters and the Father dyeth seised of lands holden of one of them the whole seruice if it be entire as homage is reviued after partition so here vnitie of parcell of the tenansie in the King did not determine the office but it continued in the other parcener so that the King might exact the seruice or refuse it at his pleasure as euery Lord may
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
by Parliament But if the Ioynture were made before Marriage the woman must néeds hold her to her Ioynture sans election And this is by implication vpon the third prouiso as appeareth by the report of Anderson c Sée Commentaries Plowden 390. The Case 6. Eliz. Dyer 228. is That Richard Ashton Esquire in accomplishment of certaine Indentures dentures betwixt him and Sir William Barenport concerning Marriage to be had betwixt Richard Ashton the sonne and Elizabeth the daughter of Sir William which gaue seuen hundred Markes with her in marriage infeoffed certaine persons before Marriage of Land to the annuall rent of twenty pound to the vse of the said Elizabeth for terme of her life The Marriage being consummate first Richard the Father and then Richard the Sonne died then it was found by office that Richard the sonne died seised in Fée if these Lands whereof the Feoffement was made and of other Lands holden by Chiualry as of the Dutchie of Laâ—caster his heyre being vnder age the first question was whether shee might retaine the twenty pound Lands â—â—d haue Dower of the rest because she was not Richard Aâ—â—â—ons wife at the time of the Feoffement first made neither was it made of the barons lands or by the baron resolued by Councell of the Court that shée was barred of Dower And it was so likewise resolued in Vernons Case Sir Ed. Cokes 4. Report wherein is much learning touching Ioynture The second question in Eliz. Astons ca. was whether she were Dowable from the Quéene because the feoffement was not found by the Office The third question whether it might be aâ—â—râ—ed for the Quéene in stay of petition of Dower that the Feoffement was made pro iunctura no such matter being expressed neither in the déed of Feoffement or Indenture of Coâ—â—â—ants The fourth question whether the Widdow Elizabeth might be receiued to auerre and proue by Commissi 〈…〉 the Court of Wards that the Feoffement was not meant for a Ioynture Here is enough to make Women be wâ—â—e how they take Ioyntures before Marriage Take 〈…〉 ther to admonish you beware of fines after Marriâ—â—â— Ioynture was made to a Feme Couert by her Baron shée and her baron aliened the land by fine sur connusance de droit by the opinion of Iustices Wray Bell Manhood and Dyer she shall not demand Dower of the residue of her husbands Land after his death for she aliened her Ioynture before time of election was giuen her by the Statute quaere But if the fine had bene sur connusance de droit come ceo que le connuseead de done le Baron tantum this had béene a better forme for the wife and lesse dangerous 19. Eliz. Dyer 358. SECT XXXIX What is a sufficient refusall or agreement of or to a Iointure made after Couerture See Sir Edw. Cokes 3. Rep. in Butlers and Bakers Case THe refusing or agreement c. because they are peremptory must not bee clouded darke doubtfull or implicatiue but plaine and expresse a bare word or saying by a woman that she will refuse her Ioynture or accept it is not materiall as diuers Iustices doe hold it But if shee come vpon the Land whereof she is Dowable and there refusing her Ioynture pray the heyre to assigne her Dower this is such a refusall that the heyre by this shall be charged in damages from this time forth in a writt of Dower and this refusall must be to the heyre himselfe and not to a Stranger If a Widow waiue the possession of a house or tenement assigned in Ioynture by her husband and get her to another place this is no refusall But if she haue any medling with the land assigned in Ioynture or doe any other act amounting to assent or dissenting as for example If she bring a writt of Dower and declare vpon it this is peremptory although she bee vnder age Couert or not Couert of a second Husband for the Law saith that they which haue discretion to acquire and get things haue sufficient discretion to giue and preserue those things gotten Therefore if an Infant cdme to any thing by purchase hee shall not in that haue any aduantage or bee in better plight then a parson of full age As where estate is made to an Infant of two acres to haue and hold the one for life the other in fée c. a Feoffement made of one whilest he is yet vnder age is a sufficient election And if a rent charge bee granted to an Infant whereupon he bringeth a Writt of annuity he shall neuer auow for it as a vent when he commeth to full age So if an Infant recouer debt and sue execution by elegit c. he shall neuer haue a scire facias And an Infant is subiect to an action of waste or entry for condition broken as well as any other person These collections gathered as I thinke by some well learned and industrious Student out of M. Brograues reading though they want of the fulnesse and perfection which the owne pen of so great a Lawyer might haue giuen them yet are they pertinent and important And I not a little beholding to him from whose hands I obtaine them SECT XL. Of Actions brought by Baron and Feme or by one of them NOw because the common sayings are found by common experience true Qui capit vxorâ—m capit lites and qui habet terras habet guerras A Wife brings iarres and wealth brings warres quarrels suits and controuersies at Law sans câ—o that it hath any other intendment it will not be amisse a little to declare how and in what manner actions at law must be commenced and pursued by baâ—on and Feme or against them or by or against one of them according to prescription of Law and their seuerall and ioynt Interests c. SECT XLI Where the Baron shall sue onely in his owne name A Man shall sue for his Wiues Marriage money onely in his owne name but how or where that is a matter of some obscurity by Bracton lib. 5. ca. 10. 407. money that is promised causa Matrimonij is as a sequell of Marriage and so being annexed to a thing spirituall requires a spirituall suite yet he confesseth that it is otherwise for Land promised or couenanted c. Fitzherbert in his Writ of Debt citeth 31. Ed. 3. that if a man promise one twenty pound to marry his Daughter which marrieth her accordingly he may haue a Writ of debt vpon his promise but he forgets not the â—éere difference in the Booke of assizes for in the Writt of prohibition he tels vs if a man promise one twenty pounds if he marry his Daughter after marriage if the promiser will not pay the money the husband may not sue in Court Christian if hee doe a prohibition lyeth marry if I promise one twenty pounds with my Daughter in Marriage c. now vpon non-payment he may sue in Court Christian for this concerneth Matrimony The same
her Lands aliened by her husband quod vide cui in vita Fitz. 3. Likewise 1. H. 4. fo 1. The Kings writt of Ward against Sybill Belknap is awarded good though it were brought by the King but iudgement was asked of it because Sybill was a Feme Couert iour del briefe purchase and the husband not named whereunto was answered that for offence against the King and his Péeres Belknap was banished to Gascoigne there to remaine till he obtained the Kings Grace c. Iustice Gascoigne by the assent of his fellowes commands the Defendants to answer and she pleads in barre Againe 2. H. 4. fo 7. all the Iustices testifie that the wife of Sir Robert Belknap who was banished sued a writt alone without naming her husband and by their common award it was holden good for that as some said the said Sibyl was the Kings Ferâ—er But howsoeuer it were Markham exclaimes Ecce modo mirum quod foemina fert breue regis Non nominando virum coniunctum robore legis Some say it should be conuictum c. It is like a miracle that a wife should commence any suit without her husband 18. Ed. 4. fo 4. If a feme Couert be impleaded without her husband and outlawed the baron and feme may ioyne in a writt of error to reuerse the outlary for the wife cannot sue without the Husband If a fine be leuied to a feme Couert yet she and her husband must ioyne in the quid juris clamat as the book of 11. H. 4. 7. testifieth If Baron and Feme be beaten c. they must Ioyne in action for battery of the Feme but for his owne stripes the Baron shall bring his owne action by himselfe or else his writt abates for that part 9. Ed. 4. fo 52. Because a feme Couert hath nothing to doe to participate in the suites of her husband nor in the priuiledges of her husband Therefore a suite against the Wife of an atturney shall not be in the Court where hee serueth by bill but by originall writt and none essoine de seruitio Regis or other essoine cast for the Husband shall serue for the wife for if in a praecipe quod reddat against baron feme at the grand Cape the Baron be essoyned de seruitio regis and the wife make default shee shall lose her Land So likewise if the Baron be a seruant of the Chancellor c. no writt of priuiledge shall serue for him and his wife but actions against them both must be sued at the Common Law But a protection cast by the Baron dismisseth the plea sans iour for both because the Feme cannot answer without her husband 35. H. 6. f. 3 4. a feme couert shal not be receiued to disauow the atturney of her husband but he shal make an atturney for them both 33. H. 6. f. 31. And cod â—n fo 43. If the wife will come into the Court offer to plead any other plea then that which her husband hath pleaded or to confesse the action she shal not be receiued to it but the husband may not forcher per essoin And if baron feme wage the law c. If the wife appeare not at the day giuen the baron shall be condemned But a wife shal neuer be receiued to disauow the suite of her husband and her selfe quod vide 39. Assisarum pla 1. a good Case SECT XLIII Of Felonies IN matters criminall and capitall causes a Feme couert shall answere without her husband 15. Ed. 4. fo 1. And note if a Feme Couert steale any thing by cohersion of her Husband this is not felonie in her 27. lib. Assisarum 40. It was found that a woman had stollen bread to the worth of two shillings by compulsion of her husband and awarded that she should goe quite It seemeth to be all one if a woman steale by commandement of her husband quaere If a man and his wife commit felonie ioyntly it séemeth the wife is no felon but it shall be wholly iudged the Husbands fact saith Stamford Seuen men and a woman were arraigned of felonie found guilty and because thâ— woman cryed out she was wife to one of the seuen the Iudges sent to the Bishop to be certified of the Marriage But a woman by her selfe without the priuitie of her husband may commit felonie to become either principall or accessary As if shee steale goods or receiue théeues to her house c. and if the husband so soone as hee perceiue it waiue and forsake their company and his owne house in this case the Womans offence makes not felonie in the baron But if the baron commit felonie his wife not ignorant of it may kéepe his company still notwithstanding and not be deemed accessary for a woman cannot bee accessary to her husband insomuch as shee is forbidden by the Law of God to bewray him note also that a woman cannot be thiefe of her husbands goods if shee take and giue them away the receiuer is no felon Stanford lib. 1. cap. 19. Briton allowes that the wife shall keep her husbands counsell but yet so that if she acquit her selfe per pais del fait consent for felons wiues hee saith haue often held men whiles the husband killed them and in that case it is reason and Law that they hang together fo 47. By Bracton non debet virum accusare vxor nec deâ—egere â—urâ—um suum neque feloniam conâ—enâ—ire tamen non debet nec coâ—diutrix esse sed feloniam nequiâ—iam viri quantum potest impedire And by him if goods stollen be found sub claâ—ibus vxoris she shal be culpable with her husband of his felonie Item si vxor cum viro coniuncta fuerit vel confessa fuerit quod viro consilium vel auxilium praestiterit â—â—nâ—bunâ—â—â— ambo nam licet obedire debeat vxor viro in aâ—â—ocioribuâ— tamen laâ—â—oâ—inijs nec est ei obediendum Poterit vir ligare tenere atque vxor sponte non coacta occidere ita â—eneâ—ur de maleficio vterque libro 3. ca. 32. In the end he sheweth how execution of iudgement shall bee deferred when the woman condemned is with child siue ante delictum conceperiâ— siue post Hee coteth ciuill Law for it But Stanford hath it perfecter If a woman bee arraigned of felonie it is no plea to say she is with child but she must plead to the felonie and if she bee found guilty shee may then claime the benefit of her wombe wherevpon the Marshall or Vicount shall bee commanded to put her in a chamber and cause some women to examine and try her whether she be ensoint de vn infant which if she be not she shall be hanged maintenant And though she be quicke with child yet Iudgement shall not be delayed but onely execution deferred If after such respite when she is once deliuered she become great againe and obiect to prolong her life the