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
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
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
mothers side yea and before a sonne of the second uncle on the part of the father and this by the worthinesse of blood I will not examine the crainkes of discent but turne to the case where possession of the brother excludeth a brother and taketh in a sister If a man hath issue a sonne and daughter by one venter and a sonne by another and give land to the eldest sonne in taile now if the father die and the reversion in fée discend to the eldest sonne who likewise dies without issue of his body the second sonne shall have this land For here was no possession but an expectance of fée simple in the eldest Per omnes Iusticiarios de Communi Banco 24 E. 3. fol. 13. For it is possessio fratris non reversio fratris c. Yet Thorpe Iustice of the Kings Bench thought the land should goe to the daughter Brooke con Brooke discent 13. Againe afine was levied to I. and A. his wife in taile the remainder in fée to A. they had issue a sonne and the husband died the wife tooke another husband by whom shee had issue another sonne and died the eldest sonne entered and died without issue the collaterall heire to him entered as into the remainder in fée and the youngest sonne of the halfe blood to execute the fée brought a Scire facias which was holden good for though the eldest might have charged forâ—ited or given the fée simple by atteinder yet it was not actually in him and therefore the demi sanke none impediment but the younger sonne might have it as heire to his mother 24. E. 3. fol. 30. Which cases prove that the possession of a brother to convey the fee to a collaterall heire if it be not apprehendeth actively the generall heire to the common ancestor may enter Therefore where there is a son or daughter by one venter and a puisne sonne by an other venter if the father die seised of an advouson or a rent and the eldest son died before he present or receive the rent the daughter shall not inherit and if the father die seised of an use in fee possessio fratris facit sororem esse haeredem by taking the profits of the ground 5. E. 4. 7. Where it is said that if the father by testameÌ„t bequeath the profits for tearme of yeares this letteth not the possession of the eldest brother otherwise it is if it had beene for tearme of life and the like difference is by this booke if a lease be made for yeares or for life of lands not in use c. SECT VIII Where the manner of gift altereth the discent BRactons first exception to his general rule that a Woman shall not inherit when there is an heire male is Nisi contrarium faciat modus donationis His example is A man giveth land to one in mariage with his daughter to them two and to the heires of their bodies they have issue a daughter and the husband dying the wife taking another husband hath by him a sonne and dieth the daughter shall inherit per modum donationis the case is plaine But Littleton hath a limitation where modus donationis doth cleane exclude Women from inheriting That is where lands are given to a man the heires male of his body now if he die having issue a sonne and a daughter by one wife and a second sonne by a second wife the daughter can never inherit nay if he die having issue a daughter onely which daughter hath a sonne neither daughter nor son shall inherit for whosoeuer shall inherit by force of an intaile made to heires males must per modum donationis be males coÌ„vey his disceÌ„t to it per heirs males which because the sonne cannot doe here the donor may reenter But Littleton saith also lest women should take the matter unkindly at his hand that where land is given to a man to the heires females of his body his issue female shal inherit per formaÌ„ doni not the issue male for the will of the giver must be observed He hath another case which I may not omit When lands are given a man to the heires males of his body which have issue 2. sonnes the eldest dyes having issue a daughter if hée lease the land for tearme of yeares the reversion descendeth to the sonne but if the lease bée for tearme of life of the lessée the reversion and the fée simple descendeth to the daughter the discontinuance is the cause here the daughter is in not in the per but contra modum donationis by violating the will of the giver SECT IX Where a woman comming to lands shall retaine them c. NOw I will shew you where a female having gotten inheritance per modum donationis or otherwise shall retaine it and where not Marke well this case Iohn died seised of fée leaving issue Robert the eldest sonne and Richard the puisne Robert entred tooke a wife and had issue Alice which Alice died hée tooke another and leaving her great with childe hée died the Lord seized the land and ward of Alice and granted the custody to one which indowed the wife of Robert she was delivered of a sonne William The Lord seized William his ward which lived ten yeares and died without issue Henry the sonne of Richard the second sonne of Iohn entereth Alice entereth upon Henry and hée brings an assise now because the possession of the Lord was seisin and possession of William to whom Alice was but of the halfe blood it was awarded that Henry should recover But by the opinion of the Court the land which the wife held in dowre should goe to Alice for therein William had Broke dispent pl. 19. no more but a reversion 8. Assisa pl. 6. Againe Henry seised of tenements deviseable in Winchester where the Custome is that hée which is seised by devise may not with warranty or without warranty make alienation to barre the reversion or remainder deviseth them to his wife Alice for tearme of life the remainder to Th. his sonne for life so that Th. should make no alienation quo minus tenementa devenirent propinquioribus haeredibus de sanguine puerorum post mortem predicti Thom. Henry died having issue Steven an elder sonne and Maud a daughter which had issue Eliz. Steven died without issue Alice the wife entered and died seised Tho. entereth and alieneth in fée with warranty Maâ—d dieth Elizabeth maketh claime by taking the haspe of the doore in her hand Tho. dieth without issue Eliz. entereth upon the alienee he puteth her out shée bringeth an assise It was holden that the heires of Henry had nothing in the fée simple by the limitation which went not to his children but to the next of blood to his children excluding ses infants demesne And by Wilby if B. make a lease to Alice for life the remainder to the néerest of blood if he die having issue 2. sonnes and the
of the Obligée And if I bee bound to C. that A. shall marry B. before Easter If I marry B. and our Espousals continue till Easter my bond is forfeited Similiter If C. marry B. or if A. and B. cannot marrie because one of them dieth or wareth mad before the day I finde none other cause in our Yéere-bookes alleaged why things may not passe by gift betwéene Baron and feme saue only vnitie of person But vndoubtedly the restraint springeth from a politique consideration rather to bréed cherish and maintaine the vnity then in iudging of an impossibility because of the vnitie But the Ciuill Law vir non potest dare vxori ne foeminae amorem coniugalcm in quaestu habeant prohibenter inter coniuges donationes quia silicerct coniugibus inuicem donare matrimonia fierint venalia saepe distraherentur c. And because it would amount to arguing inter coniuges there is a restraint by that law Ne priuignus dare queat nouercae vel nouerca priuigno What if the Matrimonie be inualidum legibus non consistens yet non valet inter coniuges putatiuos facta donatio ne melioris sint conditionis quam illi qui recte faciont But a gift to a plaine Concubine is good enough vnlesse the giuer be a Soldier By old Iohn Bracton lib. 2. ca 5. Non valent donationes inter virum vxorem non enim poterit vir dare vxori nec e conuerso constante Matrimonio quia huiusmodi donationes prohibitae sunt inter tales personas nec infraudem facere possint constitutioni veluti si Maritus donet extraneae personae ea mente vt redonet in vita viri vel post mortem hee maketh his reason in the 14. Chapter Si tales donationes fieri possint ob amorem inter virum foeminam posset alter eorum egestare inopia premi But at this day though lands cannot passe betwixt Baron and Feme right out by plaine liuery or bargaine yet in the obliquitie of fines recoueries and vses there is an Expedite transporting of Inheritance betwixt them to the vndoing perhaps of the partie whose Lands are transferred and auferred with not so much as coniugall loue alwayes in recompence SECT IIII. In what sort things may passe betwixt Baron and Feme LAnds cannot passe from the Baron by feoffement to put the state from him immediately to the wife though he were infeoffed to that intent and vpon such a condition But one man may infeoffe another vpon condition to infeoffe the wife of the Feoffor whatsoeuer Bracton say and the condition good Also a feoffement fine or recouery may be made knowledged or suffered to the vse of her and her heyres which is wife to the Feoffor Conusor or sufferer c. And as I may make another man the instrument to conuey lands to my wife so may I be the meanes to conuey Lands to my wife from another man for by Letters of Atturney-ship I may deliuer seisen of Lands to my Wife for another and the feoffement shall be good by Parkins 41. And a man may deuise in his last Will and Testament either by the custome or by the Statute 32. H. 8. Lands to his Wife in fée fée-taile for life or for yeares because this taketh none effect till the Couerture be dissolued It is said in Scolasticus case If I deuise that he shall haue greene acre after the death of my wife my wife shall haue estate for life by the intent c. And although a wife by the generall rule hath no will but her Husbands and all Testaments of a feme-couert to deuise any Mannors Lands Tenements and Hereditaments are ineffectuall by expresse declaration of 34. Henrici 8. capite 5. soeuer be the courtesie among Dames of honor a womans name of dignitie changeth with the degree of her husband and of such women as haue not their honor by birth but acquire that by Marriage the rule of Law taketh order Si mulier nobilis nupserit ignoblem desinet esse nobilis when she taketh a second husband But what though the scrupulositie of the Common pleas were obserued throughout the Realme that Esquires Ladies should be no Ladies in Court and Country wherevnto I will neuer giue voyce what inequality were in this depressing shall not likewise a Knights widdow marrying with a Baron or Earle as be much exalted verament yet you see the dignitie hangeth meerely on the male side carrying the scepter of Wedlocke SECT VI. Touching seruitude NOw touching the state of fréedome or bondage Littleton saith that if a free-man marry a bond-woman the Lord cannot seise her but there is remedie by action for taking her sans gree or licence Fitzherbert in his liberâ—are probanda agreeth 78. G. that she should be fréed perpetually But the Law seemeth to be otherwise And so you may find the opinion of Doct. Stud. fo 139 b. And that indeed it is no more but a Temporarie priuiledge and exemption from seisure of her Lord during time of couerture for if the Seigniour of a Mannor marrie his Niefe regardant the best authority that I can finde is that this Niefe is no more but shrined in the honour of her Lord if he die she shall haue no Dower but remaine still in her niefitie regardant to the Mannor And to say truth I perceiue not how a womans being married can in any sort be an infranchisement no not for a time it is no more but a sconsing or hiding of the seruitude Bracton saith elegantly manumission is a detection or laying open of the freedome which is a natura A womans liberty is free licence to doe what she list vnlesse shee be letted by force or by Law it is not restored to Niefe when she marrieth Marriage rather pulleth it from her which before was free When a Seignieur therefore marrieth with his bond-woman she must not turne her bumme to him and say heretofore my Lord I lay in your bed and now I lye in mine owne as the French Concubine said being married newly to her French Lord but let her bee burome and mindfull of her subiection for if this louing Seignior of hers die she may right well be an apparant Niefe againe to her owne sonne for ought that I know why not as well as causes may happen that the father to sonne or one sonne to another may be a villeine the case did happen 3. Ed. 3. that the villaine married his Lords mother and so the father in Law and the brother de demisank were villeines If a free woman marry a villeine her naturall freedome is not otherwise infringed then by subiection to her husband If the villeine purchase Lands and die before seisure made by the Lord the wife shall haue Dower But if a frée-woman seised in fee or fee-tails take a husband which is a villeine and die the Lord may enter vpon the husbands possession per le Courtesie or vpon the Issue being Tenants
the Statute of 21. H. 8. hath béene taken A sonne of Charles Duke of Suffolke by a second venter hauing certaine goods by his fathers Will dyed intestate and without wife or issue his mother who was daughter to the Lord Willough by tooke Administration which was afterward reuoked after great argument in the spirituall Court as well by common Lawyers as Ciuilians in the behalfes of the said mother Dutchesse of Suffolke and Lady Francis wife to the Marquis Dorset sister of the halfe â—loud to Henry the Intestate which sued to reuerse the Administration and obteined it her selfe though shee were but sister de demy sanke for the mother is not next of kin to her awâ—e sonne in thiâ—â—aâ—ter but must descend and not ascend either by one Law or the other and children be â—â— sanguine patris matris â—â—â— pater mater non sunt de saâ—gâ—ine puerorum Contrary it is of brethren and sisters 5. Edw. 6. 47 in Brooke titulo Administraton There is also this Case William Rawliâ—s Clericus died inteâ—â—ate administration was committed to Sir Humphrey Browne who had married Rawlins his sister William Shelton and Iohn Shelton sonnes to the Lady Browne by her first husband reuersed the administration and obteined â— for themselues But sée in Sir Edward Cokes 3. Rep. in Ratcliffs ca. fol. 40. it is said that the booke of 5. Edw. 6. haue beene often times resolued to bée no Law and that the goods of the sonne or daughter ought to be granted to the father or mother as the next of bloud and there is Littleton â—ited who saith that although the sonnes lands goe to the vncle yet the father is next of bloud SECT II. Areâ—sonâ—ble part of the goods IF there bée a will proued the widow must take such goods as were bequeathed her by deliuery from the Executors but whether here were a will or none in some places she shall haue a third part of all her late husbands goods For this there is an ordinary writ to the Sheriffe where she cannot haue a third part of that which remaines after funerals discharged and legacies payd and performed to summoâ— the Executors to appeare and make answer why she should not haue as the custome of the Court is that women ought to haue rationabilem partem de bonis caâ—alâ—â—s virâ—rum The like writ is for children whether they be sonnes or daughterâ— or both And this writ speaketh of a custome in the County that children which are not heires nor promoted in the fathers life time shall haue their reasonable part 3. Edw. 3. A Writ of debt was brought by a man Alice his wife against the Executors of his wiues father declaration was vpon custome of the Shire that children not aduanced should haue their reasonable part of their fathers goods the Executors said that Alice was married by her father in his life time iudgement si action c. It is no answer said one to say that she was married by her father except you say also by or with her fathers goods and to her conueniable aduancement and here the husband at time of the marriage or after had neuer any land The Executors said still shée was conueniently married by her fathers procurement c. And in the end the Baron and Feme offered to auerre not married by the father on which point the issue was ioyned Fiâ—zh Dett 156. 40. Edw. 3. In a rationabili parte bonorum brought by a daughter counting on the custome of the Towne that euery son and daughter should haue a reasonable part the defendant pleaded a reuersion discended to her which she might sell for her aduancement in marriage iudgement si action c. Mowbray said the Lords in Parliament would not agrée that this action is maintenable by any common custome or Law of the Realme Doctor and St. fol. 132. a. by the custome of some Country the children the dâ—bts and legacies payd shall haue a reasonable part of the goods of the dead 39. Edw. 3. fol. 9. 10. One brought a Writ of Detinue for certaine goods shewing the custome of Sussex That where the father dyed intestate his heire should haue a reasonable part of his Chattels and vpon this custome hee demanded goods come to the Defendants hands It was argued whether the custome were good or no. Morris such a custome hath béene allowed in Eyre 21. Hen. 6. fol. 1. 2. In fine â—asus a woman brought a Writ of detinew against her husbands Executors for a â—â—ity of his goods as for her reasonable part by custome and the Defendant was compelled to answer 7. Edw. 4. fol. 20. 21. Iâ— a raâ—ioâ—abili parte boâ—â—rum iudgement was asked of the declaration because the custome was that where the Baron dyed sans issue the wife should haue a moity of his goods after debts and â—uâ—erals discharged but if there were issue shee should haue but a third part and here the Plaintiffe had a demanded moity without alleaging that the baron died sans issue c. The Plea was amended by permittance of the Iustices for Daâ—by said the widow had as good title to the goods as to lands at the common Law But Cat. by spied another fault in the Count viz. Continuance of the custome not alleaged 18. Hen. 6. fo â— in a rationabili parte bonorum one Executor appearing confessed the action and the others made default whereupon the Plaintiffe recouered presently by equity of the Statute 9 Edw. 3. cap. 3. by which the Executor comming first must answer Like or the same learning is in the former Booke 7. Ed. 4. where Choke said that alwayes if ne vnques executor ne vnques administrat coÌ„e executor be a good plea vt hic the Executor first appearing must answer I see that many tunes in stead of this writ de rationabili parte bonorum a writ of debt sometimes and many times of detinue hath serued and you may finde further 52. and 56. titulo Detinue in Fitzâ— And the great variance is in this that the action is founded on a custome sometime of the Towne sometime of the County and sometime of the Realme for indéed many haue holden that it is generall like an action of the Case against an Hostler or an action deâ—igne custodiendo So teacheth Glanuil and so Fitzh who relieth vpon magna Charta cap. 18. which prescribiâ—g how the Kings debts shall bée leuied of his goods that is dead willeth the surplussage to remaine for the Executors ad testamentum defuncti pimplend saluis vxori pueris eius partibus rationabilibuâ— which being of a reasonable part may be restrained to places where custome yéeldeth it for ought that I perceiue Bracton in this passage is like a péece of Romane ancient coyne that time hath rusted and defaced If a man saith he make a Testament he ought to remember his Lord of whom hée holdeth his land with the best thing he hath and the Church with the next