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
villenage 35. And if a woman Heyre haue issue by her husband commit felonie and be attainted it hath béen mostly holden that the husband shall be Tenant by the Courtesie notwithstanding and that after Issue had the Lord may auow for homage vpon the husband without the wife 21. Ed. 3. 49. By Parkins 91. 475. Likewise if the Wiues Inheritance be recouered against Baron and feme by false oath or erronious Processe and execution is had and sued of this recouerie if they haue Issue afterwards and then the wife dieth the Baron now reducing the Land by attaint or error shall hold per le Courtesie SECT LII What if the Childe die IF a man haue Issue by his wife that is here in possession the death of the Issue is no losse of Courtesie and by Parkins if a Daughter and Heyre apparant take a Husband haue Issue by him and the Issue dieth if now the Father die and the Baron and feme enter he may be Tenant by the Courtesie without hauing other Issue Brooke makes it questionable Also by Brooke if a man die his wife being priuement enseient a Daughter entreth as heyre taketh a Husband and hath Issue if a Sonne post-humus enter vpon the Baron and feme and the Issue of the Daughter dieth and the posthumus dieth without Issue the Baron cléerely shall not be Tenant by the Courtesie vnlesse hee re-enter in his wiues time and he doubteth though the Baron enter sans other Issue bility his wife may beare him may by possibilitie be heyre of that estate Si le possession le Baron ne soit loyalment anient As addeth Parkins the Wife shall be endowed SECT LVI The Husband must be seised DOwer is of the possession of a Husband the ground of it therefore is Marriage a Concubine then shall haue no Dower no more shall shee which is but onely contracted and it was holden by some 10. H. 3. that she which was married in a Parlor or Chamber should haue no Dower but it is now taken otherwise Also where Marriage is cleerely voyde and vnlawfull there groweth no title of Dower But if a woman first contracted to E. I. intermarry afterwards with T. K. this Marriage is voydable but not cléerely voyde and if it be not frustrated otherwise then by death of T. K. the Wife shall haue Dower of his Land Here yee may perceiue that which destroyeth an absolute true Marriage destroyeth Dower also for though by Bracton there may be by speciall Constitution a Dower appointed that shall stand good against the tempest of diuers assaults yet by ground of the Common Law Matrimonium est fulcimentum doâ—is And Bracton saith in his second booke and 39. Chapter Vbi nullum omnino Matrimonium ibi nulla dost igitur vbi Matrimonium ibi dos quod verum est si Matrimonium in facie ecclesiae contrahatur SECT LVII Matrimony may be and yet no Dower THough Matrimony doe alwayes precede Dower yet doth not Dower alwayes follow Matrimony for first where the husband had no Land the Wife can haue no Dower by the Common Law Bracton and Breton which giue a woman Dower in a certaine somme of money or in other Chattels speake rather as Ciuill Lawyers then méere English Also Dower is not granted vnlesse the Husband is aboue 7. yeers old and the wife aboue nine 13. Ed. 1. Fitzherbert Feme perdera Dower si son Baron morust deuant 9. ans d'age Dyer 14. Eliz. fo 313. Also if a man marry his bond-woman in grosse and die she shall not recouer Dower against the Heyre for shee is his bond-woman but against the Feoffée of her husband she shall recouer Dower vnlesse she be regardant to the Mannor whereof the Feoffement was made SECT LVIII What Seisin is requisite in a Husband WHere the Huband hath neither possession in fact nor possession in Law during the Couerture nor any thing saue onely a right or title the wife shall not haue Dower as also if the Baron suffer a Disseisin an abatement a Condition broken an alienation in Mortmaine or cesser of his rent or seruices by two yeares space c. and then he take a wife dieth before reduction of his Land or if iudgement be giuen for him in a plea of Lands and hee marryeth afterward and die before entry or suing of execution the wife shall not haue Dower of these Lands So is it if I. S. exchange Lands with T. K. and I. S. entreth but T. K. taketh a wife and dieth before entrie his wife shall not haue Dower in any of the Lands exchanged but where a husband is once actually seised the wife shall bee endowed notwithstanding any disseisin afterward done to him or feoffement made by him either absolute or conditionall And if before or after Marriage celebrated and not dissolued a possession in Law be cast vpon a Husband by descent escheate or fall of some remainder the wife shall be endowed though the Baron die before entrie as if the Kings Tenant die seised and his Heyre being married dieth before office or entrie the wife of the heyre is dowable so if rent desâ—end to a husband which dyeth before day of payment c. for there is not requisite in the husband such a seisâ—n as whereof an assise lyeth but if a precipe quod reddat might lie against him it sufficeth 4. He. 7. fo 1. Brooke 66. in Dower A husband may haue possession in law by descent of a villaine in gros or possession in law of a rent charge by excepting the déede of grant and hereof the wife shall be endowed although the Baron doe afterwards refuse receit and seisin of the rent But iudgement in a Writ of annuity for the Baron taketh away Dower of a rent charge from the wife and a woman may haue Dower of an estate that was suspended as if the Lord married with his Tenant now is the Seignorie suspended but if he die the wife shall haue Dower a third part of the rent per retâ—igneâ— for the Seigniorie though it slept yet there was still a possession in Law of it in the husband Here it must not be forgotten that it â—éemeth doubtfull whether an abatement of a stranger which is a possession in fact destroyeâ—h a Possession in Law it appeares by Park â—o 72. sect 371. 372 4. H. 7. 1. per meux that it doth not But 21. Ed. 4. â—o 60. which is accorded for good Law 4. H. 7. fo 1. where in a Writt of Dower the Tenant pleadeth ne vnques seisie in dower c. the demandament sheweth that Lands descended to her husband she being then his wife and that he dyed before entry made either by him or by other person issuit est donable per le lâ—y and shee was inforced by the Court to plead that none entred for if a stranger had entred she had not béene dowable And if she had pleaded 〈◊〉 〈◊〉 que Dowâ—e la Poet this had wayned the speciall
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
else to haue brought seuerall Appeales whereunto was answered that it two or twenty goe and come together to commit any felâ—ny as robbery or murder though one of them onely commit the Act yet all the rest are principals A third exception against the Declaration was that the Plaintiffe had not shewed how his wife assented after the rauishment and the Appeale was giuen by Wâ—st 2. to the Baron and Feme and not to the Baron alone by the Statute of Rich. 1. But this exception also was disallowed because the Count had recited the whole purueyance of the Act and the rauishment was contra formam c. Last of all the Appellées pleaded that long time before the espousals betwixt the Appellour the woman supposed to be rauished one of the Appellées had affianced the same woman after which affiance the Appellour married her at a certaine Church against her will after which marriage whereunto she neuer agréed she came of her owne accord to the Defendant who had now married her so that the Appellour and she were neuer coupled in loyall matrimony This manner of pleading was said to be a conâ—ession both of the first marriage and of the rauishment which the Councell would haue taken by protestation But â—â—â—scoigne told them they might not haue protestation to proue them guiltie of felony Therefore the Defendant pleaded generally Ne vnques accouple c. which the Plaintiffe accepted of his owne accord and a Writ was awarded to the Bishop But all mens opinions seemed to be that this was no good plea because the Statute is that the husband shall haue the Appeale though they agréed that when the Action is by Common Law as an Appeale De morte viri ne vnques accouple is a good plea for no woman shall reuenge her husbands death by Appeale vnlesse shee were wife as well in right as in possession The Statute of Richard giueth the Appeale where the woman rauished hath no husband to her father or next of bloud c. which is vnderstood vt supra where the woman consenteth to the rauisher for otherwise the woman her selfe must pursue the Appeale vpon West 2. cap. 34. for the father cannot haue by the Common Law either Appeale of rape of his daughter or of death either of son or Daughter But it séemeth that by this Statute if a woman be next heire to her which is rauished and consenteth she may haue an Appeale of rape against the rauisher as well as any procheuie heire male may And learne If a woman which is rauished dye and her husband takes another wife whether hée may now haue an Appeale or no. It is said that if a Lord rauish his Nief she cannot haue an Appeale of rape against him but the King may punish it by way of Indictment SECT XXX Within what time Appeales of Rape must be commenced BY Bracton Si virgo sit corrupta oppressa conâ—â—â— pacem Domini Regis she ought to goe straight way Dâ—â— idem factum recens est and with â—ue and Cry complaine to the good men of the next towne shewing her wrong her garments torne 〈◊〉 and then she ought to goe to the chiefe Consâ—â—ble to the Coroner and to the Viscount and at the next Countie to en er her Appeale and haue it enroâ—led in the Coroners â—oll and then day was to bee giuen her till the comming of the Kings Iustices before whom she was againe to re-intreat her Appeale and if she varied from the Coroners roll she lost her suit Briâ—ton tieth the commencement of this Appeale to fortie dayes after the fact agreeing with West 1. â—ap 13. But by this Statute saith Sâ—aâ—ford rape was but trespasse insomuch therefore as it is since made felony by another Statute and no time limitted within whiâ—h the suit shall be begâ—n it séemeth a woman is at choyse to bring it when shée listeth so that shee exceed not time reasonable SECT XXXI Wiâ—hin what Countie Appeale of Rape shall be brought APpeale of rape must be brought within the Countie where the rauishment was committed and if a man take a woman against her will in one Countie and leading or carrying her into another Countie he there rauisheth her the Appeale must bée where the rauishment was committed and though the Declaration be of taking in another Countie yet the triall shall be onely where the Writ was brough Titulo vâ—sâ—e in Fiâ—zherbert 28. And it séemeth that to speake of the taking in another Countie in a Declaration of Rape is but surplussage and more than needeth for it abates not the Count if it be left out But perhaps such a leauing out in Action of trespasse would abate the Writ because the Plaintiffe is to recouer dammages for the taking in another Countie and they of the Countie where the Writ is brought cannot assesse dammages for the taking But in this Appeale there is nothing to be recouered but onely that the offâ—nder sâ—ffer death for his offence SECT XXXII The Declaration in Appeale of Rape 47. E. 3. fol. 14. IS a good forme of Declaration in this Appeale where in a Writ of Appeale of rape the plaintiffe counted how she was in Gods peace and the Kings such a day such a yeare and in such a place and the Defendant came feloniously and as a Feion againâ—â— the Kings Crowne and dignitie then and there did râ—â—iâ—â—â—er and carnally know her and that shée did pursue him from Towne to Towne and from Countie to Countie till he was taken at her suit and that A and B. were at the same time and place in force and aid of the same Felon c. And if the Defâ—ndant will this deny she is ready to proue it as the Court shall award that a woman ought But know that the seuerall Statutes haue made two seuerall formes of Appeales of rape one vpon the Statute of West 2. and in that there needs â—â— mention of any Statute But in the other which is vpon the Statute of Richard the vse is alwayes to recitâ— the Statute in the Declaration and that the words Contra formam statuti implyeth sufficiently that the woman hath consented to the rauisher SECT XXXIII Pleas to the wâ—it PLeas to the Writ may be many as false â—atine or want of â—orâ—â— or that the Plaintisse hath another Writ hanging of the same feâ—ony as is sâ—ewed you before â—â— the other Appeale And 5. H. 6. Fol. 1. Exception was taken against the Writ â—â— Appeale of â—apâ— because it was ad respoâ—dendum the Plaintiffe seâ—undâ—m formam staâ—â—ti c. Whereas it ought to haue béene Vnde eum appellat secundum formam statuti Whereunto it was anâ—â—dred that the Statute of 6. â— 1. giueth not the Appeale for that is by the Common Law but he must answer according to the Statute which outeâ—h â—attaile for the Statute saith Ad duellum vadiandum non recipiatur issint le briefe bone Another exception was taken against the
this proportion by a Statute made 25. Ed. 3. and for this aide every Lord may either distraine or bring his writ de auxilio habendo at his election but tenant by grand serjeanty or petit shall not pay this aide Mich. 21. He. 4. fol. 32. no more shall coppy-holders as séemeth by the writ both in Fitzherbert and Bracton for it is Precipimus ut habere facias rationabile auxilium de Militibus et liberetenentibus Now if the Kings writ runne for it before the Statute how is it that Bracton saith it was due but de gratis That perhaps he meant but for the quantity ipse videriâ— if the father dye the daughter being unmarried shee shall recover so much as was gathered and not paied her at the hands of the executor or heire but this aide is onely for the marriage of the eldest daughter and not for no daughter where many make but one heire But sée Bracton fol. 36. b. Where he saith primae genitae filiae non dabitur auxilium tale quia istud auxilium pertinet ad Cap. dom sicut pertineret si non esset nisi unus haeres cum omnes sunt quasi unus hâ—eres SECT V. A Woman compellable to serve THe next age of a Woman is 9. yeares when shee is dowable but wee will stay a while with the virgins concerning whom if they be in the power and governance of parents masters or prochein amies or if they bee poore the Law differeth little or not much from the common forme apperteyning unto males unlesse it been in cases of rape which I reserve to the end of my discourse where the poore have least need of subsidie onely this I observe here By a Statute made 5. Eliz. ca. 4. Two Iustices of peace in the Countrie or the head officer and 2. Burgesses in Cities c. may appoint any woman of the age of twelue yeares and under 40. being unmaried and out of service to serve and bee retained by yeare weeke or day in such sort and for such wages as they shall thinke méet and if she refuse they may commit her to prison till she shall be bound to serve SECT VI. Of Heires BVt leaving this sort to the title of day laborers come we to women wards in the custody of their lords And take for the foundation here the Statute it selfe West 1. Cap. 22. This Statute expresly reciting the materiall point of the Statute of Merton willeth it in every of them to be observed Merton Cap. 6. and the Statute of Merton is this Whosoever lay person shall bee convicted bee hee parent or other to have detained abduced or married puerum aliquem he shall yéeld the value of the marriage and be imprisoned untill yee have both made amends to the partie damnified if the ward bee married and satisfaction to the King for the transgression hoc de haerede infra 14. c. but if any heire of 14. yeares age or upward till 21. shall marry himselfe without gréeing with his Lord to defraud him of the marriage where the Lord offered him a convenient marriage and without disparagement there it shall be lawfull to hold the inheritance untill and after the full age of 21. yeares by so long time as shall suffice to reape and receive the double value of the marriage secundum est inationem legalium hominum et secundum quod pâ—oeodem maritagio prius fuerit oblatum sine fraude malitia et secundum quod probare poterit in Curia Dm. Regis Let us speake of heires and see a litle in what cases a woman shall inherit It is knowne to all that because women lose the name of their ancestors and by marriage usually they are transferred in alienam familiam they participate seldome in heireship with males and therefore Bracton is bold to say Nunquam ad successionem vocatur femina quaÌ„diu haeres superfuerit ex masculis but to this rule he subjoyneth exception and examples the very same which are in Littleton To wit exception of right line right bloud and maner of giving SECT VII Of the right Line A Female may be preferred in succession before a male by the time wherein she commeth as a daughter or daughters daughter in the right line is preferred before a brother in the transversall line and that aswell in the common generall taile as in fee simple for example land is given to a man and to the heires of his body who dyeth having issue two sonnes of which the eldest dieth leaving issue a daughter this daughter shall inherit by the right of blood also a woman shall bee preferred propter jus sanguinis Example a man hath issue a sonne and a daughter by one venter and a sonne by another venter the first sonne purchaseth in fee and dieth without issue the sister shall inherit So it is where a man seised in fee hath issue ut supra and dieth his eldest sonne entereth and dieth without issue c. Bracton who hath both these cases disputeth here as if he were seeking a knot in a bulrush and he findeth a difference where the inheritance is Discendens and Perquisita But Littleton is plaine though the second sonne bee heire to the father in the last case and therfore should have had the land had the eldest sonne neuer entered yet the case being as it is possessio fratris de feodo simplici facit sororem de integro sanguine esse heredem whether the fee was descended or perquisit what skils it here it must needs be if the brother was heire of the blood of the first purchasor that the sister of the whole blood is so too yet there is a great difference betweene land purchased by him that died seised and land discended unto him for the first may goe to the heire on the fathers side for default of such to the heire of the mothers side but land discended must alwaies goe to heires of the blood of the first purchaser and the case may bee such that a female shall cary away inheritance from a male though there be no difference of right line or in the integrity of blood which Bracton calleth jus sanguinis duplicatum as where Iohn Stile purchaseth in fee dieth without issue an ant or ants or uncles daughter on the father side shal inherite before an uncle or uncles sonne on the mothers side where they be both collaterall and the integrity or neernes of blood is alike Put case that the purchasor died leaving issue only Iohn the younger and this Iohn married or unmarried dieth without issue now cannot the land goe to the heires on the part only of the mother of young Iohn and therefore ye must ascend a step higher to the marriage of the father and mother of the first purchasor if ye will finde who shall inherit where if there be neither brother nor sister to the purchasor a daughter to the eldest uncle on the fathers side may inherite before any of the
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
the acres to be of equall value it must needs bee against law also for one acre of three equally vallued or of euery acre one third part is a iust Dower But if the acre vnsold were inferior in value there is both conscience and law for the woman to claime Dower of the two acres or of the rent for a woman must be endowed of the best possession and not according to the number of acres but according to the value of the Inheritance whilst it was the Husbands Therefore if I make a feoffement of my lands and dye and the feoffée builds a house vpon it or otherwise improoues it my wife shall be endowed no otherwise then according to the value of my possession yet if a disseisor or a feoffée sur condition doe edifie the disseisie or feoffor re-entring shall haue the building If being married I make a feoffement and the feoffee ruinateth a house which was vpon the Lands before the feoffement and that was worth foure or fiue pound annually my wife shall be endowed according to the value that the land was of at time of my death because a woman hath no right to possession of Dower before the death of her husband But Parkins dares not let this Case goe without a quaere SECT LXIX Of Dower at the Church doore THe old kind of endowment at the Church Doore commeth now a dayes seldome in vse But for all that I would haue women better learned then to be ignorant of it it is when a man seised in fee-simple being of full age comming to the Church doore to be married doth there affirme affiance and endowe his spouse of all his lands or of part as of halfe or a lesse quantity openly and with certainty the woman thus endowed may enter into her Dower after the husbands death without assignement and this Dower may be at the Church doore in one County of Lands in another County and without déed Parkins sect 217. Vide Plowd in Sharington ca. fo 304. b. it is good without liuery of seisin Et per Shelly 28. H. 8 Dyer fo it may be done within view and the puisne sonne of Land in borow English may not make such a Dower Also a sonne and heyre apparant when he is espoused by consent of his father may endow his wife at the Church doore in part of such lands and tenements as are the Fathers in fee-simple and the sonnes wife after his death the father liuing may enter presently without further assignement into the parcels thus certainly appointed But if shee enter after her husbands death and agrée to any of these endowments ad ostium ecclesiae she is concluded from claiming any other Dower Thus farre Littleton By Bracton none can endowe his wife in this manner vnlesse hee bee Liber homo for in his time if I bee not much deceiued the greatest number of bond-men held in manurance Lands of their Lords which they occupied to the Lords vse and profit in pure villeinage These hauing none other lands could not endow c. Also by Bracton Quis posset dotem constituere sciendum quod tam minor quam maior masculus Cui vxori tam Church doore to be married deliuer the Deed to her shewing her the lands saying his will is she haue them according to the déede if the Baron neuer claime otherwise then in right of his wife that is a good feoftement But he may endow her of his owne lands ad ostium Ecclesiae without déede though the Land be in a forraigne Countie marry when the Dower is of the fathers Land ex assensu there must bee a deed for assent lieth not in auerment 40. Ed. 3. 43. yet this is contrary to Bracton and in old Bookes the consent hath beene tried by proofes Dowment may be good ex consensu matris but as they say now not ex consensu fratris sororis vel consanguinei The assent ought to be at the Church or Church doore yet 2. H. 3. the sonne married against the will of his parents and eight weekes after indowed his wife of his fathers lands ex assensu patris per curiam it was holden good Fitzherbert 199. Of the head of a Baronie or the Capitall Messuage of a Knights fée Dowmente ad ostium c. is not good but it may be of a moity of all such Lands as the Baron shall hereafter purchace in fee or of all such Lands as the Barons mother holdeth in Dower But if the Father lease his Lands for life and the Sonne and Heyre apparant endow his wife ex assensu c. of the reuersion now if the Lessée die the Lessor enter and the sonne die the wife shall not haue Dower because she was not Dowable of the reuersion at the Common Law though it had beene in her husband during couerture so is it if the Father were seised for life or iointly with another in fee But if the father had beene Tenant in taile the endowment by consent had beene good during his life though no conclusion after his death to his Issue or his wife claiming Dower euen as by Election if tenant in taile being himselfe in actuall seisin endow his wife ad ostium Ecclesiae die if his wife enter the Issue may out her and so may hee in the reuersion if issue faile If the Father at time of endowment ex assensu bee seised none otherwise then in his wiues right Yet Parkins argueth hee shall bee bound during his life quaere I haue held young Maides now indeed somewhat long in the old endowments and I would proceed to instruct them in the dower of the new learning iointures I meane for my desire is that they should be able to haue when they are Widdowes a coach or at the least an ambler and some money in their purses But they are of the minde for themselues I perceiue that Themistocles was in for his daughter He desired a man rather without money then money without a man here is a wise adoe yee say I tell you of Dower of the Widdowes estate and God knowes whether ye shall euer haue the grace to be widdowes or no yee would know what belongeth to wiues on then in a good way I haue brought you to the Church doore if ye be not shortly well married I pray God I may FINIS with her Husbands protection and supereminency Now the Law that giueth Dower to her that is able to deserue it and enableth at so greene yeares knoweth well enough that women are at their Husbands commandement If Titus being dead haue left his wife her maidenhead immunis a culpa a poena immunis erit This I might dilate as in probabilitie or likelinesse of reason at Common Law but it seemeth the matter resteth otherwise determinable For in action of Dower the Tenant shall not plead nunquam carnaliter cognouit nor the demandant be driuen to auerre a knowledge c. But the case may perchance bee drawne to
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
vnques seisi que Dower c. THere are other pleas that goe to the action and verie right of Dower as Ne vnques seisi que Dower c. id est The husband had neuer any seisin or state of Inheritance where of the wife can claime Dower sée 45. E. 3. fol. 13. The tenant in Dower leased her whole estate to the heire rendring rent for terme of her life the heire died and this was adiudged a seisin whereof the heires wife might demand Dower though the first tenant in Dower were still aliue for the lease was a Surrender and if a stranger had entred immediately after the heires death his heire must haue had a Mordancester Ergo said one the wiâ—e dowable Yet marke this case â—bid a man seised c. in fée simple dies his sonne entreth and he dies the sons sonne enters and endowes his Aylâ—sâ—e she dies a stranger abateth In this case it is cleere the sons wiâ—e shall haue no Dower of the portion assigned to the Aylesse though the sonnes sonne may haue a Mordancester per Kirton Finch and Mowbray But betwiâ—t this casâ— and the other they say is great oddes for here the Grandmother endowed was in from her husâ—â—â—â— and she sonnes possession and estate howsoeuer to his â—â—ire in whom the fée rested it were not destroyed but hee might bring a Mordancester yet to his wiâ—e it was cleane adnihilate whereas in the first case the Fée and Francktenâ—ment not a whit impeached by the life of her which surrendred were perfectly conâ—â—â—ned in the Baron to whom the Surrender was made And if a râ—uersion be granted to I. S. of certaine lands per faiâ— in pais in which lands I. T. and his wiâ—e haue â—state for life which doe atturne and afterward surrender there is no doubt but I S. his wife if hee die shall hauâ— Dower though it bee indéed defeasible after death of T. K. if his wiâ—e suruiue and will vndâ—â— the Surrendâ—r whereas in our first case the Surrender is no way auoydable but the heires wife shall pay rent according to her portion per Finch â—bâ—â— 14. Ed. 4. fol. 6. Tenant by the courtesâ—e granted his estate to him in reuersion rendring rent with clause of re-entrie for non payment the Grantée married the rent was arréere tenant per le curteâ—â—e re-entred hee in the reuersion died his wife waâ—â—arred of Dower for the Surrâ—nder might well bee vpon candition 2. H. 4. fol. 22. In action of Dower it was pleaded that the Demandants husband had nothing in the land â—ut by 〈◊〉 done to the tenant Iudgement si action c. The woman shewed how her husbands father hauing two sonnes leased his land to the eldest sonne and to hiâ— wife for 〈◊〉 of theâ—r liues and that shee her selfe married with the youngest sonne the eldest died and his wife married with the tenant the father died the reuersion descended to the second sonne being her husband the tonants wife died and he kept possession the Demandants husband did put him out he re-entred she prayed seifin c. Brooke thinketh she ought to haue trauersed the Disseisin And if the Baron had not entred after the death of the eldest sonnes wife she should not haue béene endowed yet saith he 〈◊〉 if without entrie there had not beene a seising in Law and whether the Francktenement which the tenant had once in right of his wife â—e determined in puncto by her death 11. H. 4. 73. In action of Dower the Tenant saith That N. gaue the land to the Baron and his first wife for terme of their liues the remainder in taile to the tenant remainder in Fée to the right heires of the Baron his first wife diâ—d he married this demandant and then hée died and the tenant entred c. he demands Iudgement if of this estate she shall haue Dower This amounted plaine to ne vnques seisi que Dower la puit but per Hanke Thirn that plea might not serue by reason of the Fée simple in remainder which might ingender doubtâ—ulnesse a layes gentes But where a lease was made to Baron for life the reuersâ—on to the Lessor or remainder to a stranger there in action of Dower ne vnques â—eiâ—â— â—ec iâ— good for no manner of Inheritance was in the husband 11. H. 4. 83. Dower was demanded of twentie pounds rent respondetur the Baron had nothing but â—oyntly with â— N. who is yet aliue â—udgement si Dower c. and he was not compelled to shew whether he pleaded as â—ertenant or as Pernor of the rent the Demandant replyed that I. N. had released all his right in the rent â—â— her husband But becauss she shewed not the Déed of â—â—â—ease shee pleaded by aduisement of the Câ—urt seisie que Dower la puit Quaere of the generall â—ssue against the â—â—eciall matter 11. H. 4. 88. A woman shall haue Dower of rent 〈◊〉 chased by her husband in fée though hee die before dâ—â— of payment And if it be pleaded against her Ne vnques fâ—â—â—â— que Dower c. she shall not shew the speciall matter but say seisi que Dower la puit and shew the matter iâ—â—â—â—dence 22. H. 6. 4â— per Newton In action of Dower the â—â—nant plead Ioynt estate to the Baron and I. N. in plein vy whose estate he hath the demandant shall not say â—â—â—â—â— que dower c. vnlesse shee shew how or trauerse that I. N. tooke nothing by she Feoâ—ment â—9 H. 6. fol. 9. Against Dower the Tenant pleadeâ— that I. S. seised in Fée infeoffed him and hee leased to the Baron to hold at will which estate hee continued all his life time sâ—ns câ—o that he was seised of any such estate que Dower la puit the Iudges orderad that for the long continuance of the possession and dought deslais gâ—â—â— all should be entred 10. H. 6. 17. It is not a good plea against Dower â—o say the Baron had nothing but for terme of his life for this amounts to the generall 〈◊〉 Ne vnques seisi que Dower la puit But to say the Baron had nothing but 〈◊〉 ment with A. in fée and that A. suruiued c. This by â—â—â— Fée simple confessed makes a good plea. 14. H. 6. 5 6. In action of Dower the tenant said â—e was seised till by the Baron disseised vpon whom he re-entred Iudgement c. the Demandant said that before this tenant had any thing in the land W. being seised in Fée infeoffed her husband issâ—â—t seisi c. and she prâ—â—â—â— to be endowed per Martiâ— the replication is not good â—â—â— this might â—e before the Disseisin and before couerture too and if so then the Baron Ne vnques seisi que Dower la puâ—â— That yée may yet perceiue further how 〈◊〉 a point it is to take or relinquish this plea rightly marâ—â— well the case 30. H. 8. Dyer fol. 41. In a Writ of Dower the issue was Ne vnques
greatest and most difficult part of Law peculiarly belonging to a widdow and come now to consider whether she shall marrie againe or no. If Iohn Boccace de Câ—rtaldo in his Booke De duris mulieribus may be beleeued When the sister of couetous King Pigma â—â—â— and widdow of Sycheus Hercules his Priest had built the Wals Temple Market Towne house and priuate dwellings of Carthage giuing lawes and rules of life to the inhabitants amongst the rest that were filled with loue of her great vertues and singular beautie the King of Malaca was one he grew so vehement in his desires that he threatned the Citizens of Carthage with warres and vtter subuersion of their new Citie vnlesse he might haue the Foundresse of it to be his wife They knowing how highly their Quéen would remaine displeased by any direâ—â— sollicitation to a second marriage not knowing how otherwise to saue themselues determined to win her assent without asking The chiefe of them went therefore to Dido and told her how the King of Malaca required Masters and Instructers of humaâ—â—tis to be sent him out of Carthage from whom he and his people might learne to doe off their naturall â—â—â—â—atousnesse and inciuilitie and further how hée had menaced fire sword and extreme dissolution vnlesse his request were accomplished But they knew not they said whom to send or who would be willing to goe and leaue his owne habitation to dwell with a King of such sauage nature and wilde behauiour as was this King of Malaca Dido when she heard them answered that she was ashamed there should be found in any Carthaginian such 〈◊〉 and cowardly feare affirming plainly that men were not borne onely for themselues and whosoeuer he were that would not aduenture losse perill yea and death though it were certaine for safegard of his Countrey hée was she said vnworthy to dwell in Carthage or that either he or his posteritie should euer be receiued to any honour or reputation amongst them The Carthaginians thought they had obtained their desire and vncouered their counsell to the Quéene telling her plainly the Kings demand Dido not knowing how to reply against her owne râ—darâ—utions replenished with sorrow and aâ—xietiâ— was enforced to yeeld her assent to wedlocke and craued a day before which she said she would goe vnto her husband but before thâ— terme was expired she caused a great fire to be made in the most eminent place of the Citie and there in view and concourse of all other people after many ceremonies and offering of sacrifice as it were to appease the ghost of â—câ—â—us she suddenly with a knife strake her selfe tâ— the heart and told her subiects that now she went to her husband her Sicheus her deare Sichâ—us on whose name still inuocating she sunke to the ground haning chosen rather to shed her dearest lifes bloud as she said than to violate the vowes of chaste widdowhood Boccace mine Author here may haue some colour of reason to extoll the resolution of Dido but not to condemne so bitterly as he doth all women that marrie a second husband Some of them are destitute of friends their parents brethren and kindred dwell farre off sutors câ—me euerie day who can obsist them Another widdow hath lands rents store of goods some suits at Law and no body that she can trust in help to gouerne that which shee hath or to inherit it when she is gone Another is tolled to marrie by mightie perswasions of her dearest friends and kindred Another hath 〈◊〉 youth on her side 〈◊〉 Indians leape into the dead mans fire if they will she hath learned that it is better to marrie than to burne SECT XXXVI A 〈◊〉 to marriâ— so 〈◊〉 it be not vncertaine who shall 〈◊〉 her to theâ—â—â—◠〈◊〉 I For my part that am like neuâ—r to be feared vnlesse some widdow be moued with compassion towards mée will not speake villanie of Bigamie or Octogamie let euerie woman marrie when she seeth her time but 〈◊〉 〈◊〉 〈◊〉 a slow speed perhaps will be best and let her examine well whether the pannier be emptie or no. If saith Sir Thomâ—s Smith in his Treatise De Repub. Angliae â—ol 104. I marrie the widdow of one lately dead which at the time of her husbands death was with childe and the childe is bâ—â—ne after marriage solomnized with me this childe shall be mine 〈◊〉 and lawfull sonne so precisely doe we take the letter Peterest quem 〈◊〉 demonstranâ— Littleton â—aith 18. E. 4. fol. 30. If a man marrie a woman which is groâ—â—ment ensâ—â—nt by another and within foure dayes after marriage she is deliuered this childe shall be his that hath newly married the woman and inherit his land for it is no bastard It 〈◊〉 〈◊〉 would haue it vnderstood of a woman enseint by â—â—p â—â—zard and in such cases it is reason that hee which takes the Dame should haue the Fole So â—s it also when â—â—â—man elopes with a stranger in 〈◊〉 and 〈◊〉 her husband Iohn at Noke being betwéene 〈◊〉 foure 〈◊〉 must father the â—hilde and it shall be his heire it he die for the Law will not â—â—ing into triall directly wh◠〈◊〉 the childe 44 Edw. 3. fol. 10. and â— Hâ—â— 4. 〈◊〉 â—â—â— though issue may 〈◊〉 â—â— taken whether a woman 〈◊〉 ensâ—mâ— by her 〈◊〉 â—â—â—hâ— time of his deathâ— deaâ—ing out the question by whom as appeareth by the forâ—â—â— Bookes and 1. H. 6. fol. 3. Then if it may be found by Enguâ—st that a woman was with childe at her husbands death the Law which permits not to enquire by whom affirmes it to be the husbands and that husbands which might lawfully begâ—t it I thinke â—urely â—ir Thomas Smith mistooke the Law for by Thorpe and Willowby 24. E. 2. fol. â—9 If a man dye seised of land in Fee simple and the wife which is 〈◊〉 〈◊〉 with a soâ—ne marrie againe and after is deliuered â—â—is sonne shall bée adiâ—dged sonne and herro to the first Barâ—n and not to the second Though Iustice Beâ— there were of opinion that the Infant might â—huâ—e his father It were better reason perhaps that the second husband might 〈◊〉 whether hée should be his soâ—ne or no and by allowance make him hiâ— heire Sir Ed. Coke in his Comment vpon Littleton fol. 8. a. saith Iâ— a man hath a wife and dieth within a â—erie short time after the wife marrieth againe and within nine monethâ— hath a childe so as it may be the childe of the one or the other some haue said in this case the childe may chuse his father Quia in hoâ— casâ— filiatio non potest probari and so is the Booke to be intended For auoyding of which question and other inconcemences this was the Law before the Conquest Sit omnis vidua â—ine marito 12. mensibus si marita verit perdat dorem But if women had all béene of such sobrietie as many are many of these questions had neuer risen and I must confesse
eldest dye having issue a sonne though this issue be heire to B the other sonne after the death of Alice shall have the land as néerest of blood and by Greene and Seaton if there had béene severall issues of divers sonnes and daughters to the devisor when the remainder vested it should have gone to them all But here because the daughter of him had issue a daughter when the tenant for life died and there was not issue of any sonne at the instant to take from her or with her this Daughters Daughter shall have all and though there came an after borne sonne of any of the brethren she may detaine all c. for a remainder vested is not like to fée simple discended to a daughter where a sonne Posthumus may enter And if lands be letten for life the remainder to the right heires of I. if I. dye having issue a son which entereth after the death of the tenaÌ„t for life then dieth his son shal have nothing because he was not capax at the fal of the remainder likewise where there is a brother sister lands are let for life to an estranger the remainder to the right heires of the brother if he and the tenant for life die the sister may enter and retaine the possession and fée though the brothers wife bee afterward delivered of a sonne in like sort did the remainder rest in the child of Maâ—d in Eliz. viz. which recovered by award 30. Assi p. 47. But where there is father and sonne which sonne purchaseth and dieth without issue and an uncle entereth if two yeares after the father hath a sonne by the mother of the purchasor this sonne may enter and put out the uncle and the reason of Law is that hée that comes in by purchase must be capax at the time when the purchase vest in him but in case of discent it is not so requisite Perk. in his Chapter of devises saith that if a devise bée made to a colledge which is not a colledge at the time of the devise it is a void devise although afterward it be made a colledge upon the same reason is Dier 13 Eliz. 303. of a devise to an infant in ventre sa mere And where a man dieth seised and his daughter entereth c. a son borne afterward may enter but it is not so in case of purchase c. for if a woman consent to a ravishor her daughter and heire enter by the statute 6. R. 2. ca. 6. the son Posthumus shall not put her out no more shall he where a daughter and heire entereth for condition broken and where a daughter hath a villain by discent which purchaseth she entereth into the perquisits an after borne sonne her brother shall have that which discended viz. the villien but not the land these cases hath Brook Discents 58. out of the Doct. and Student 5. Ed. 4. fo 58. in the case of Elizabeth Venor agreeth concerning entry made by 6. Ri. 2. And so doth Hales and Mountague in the case of Wimbish and Talbois yet Mountague Chiefe Iustice taketh there a learned difference if a man devise land for life the remainder to the right heire male of the devisor the heires of his body c. now if the devisée for life die and a woman which is heire generall to the devisor entereth and hath afterward a sonne the sonne shall never out the mother in whom is vested the inheritance for want of other persons to take the falling remainder per le melior opinion 9. H. 6 yet he saith the cases of ravishment possession of a brother abatement of a bastard c are all to bee understood of fée simple for where the entry gaineth but estate taile one may beate the bush and another take the bird so if a man seised by discent from his mother make a feofment with condition c. and die without issue if a woman heire on the father side enter for condition broken an heire male or female on the mothers side may oust her Plow c. fo 56. a. b. 57. a. West 1. ca. 22. THen West goeth on with heire females that so soone as they come to the age of fourtéene yeares if the Lord for covetousnes will not marry them yet he shall not kéepe their land above two yeares after they have accomplished 14 within which two yeares if they be not married by their Lord they may take action against him for their inheritance to recover it without paying any thing for the custody or for marriage If so be that of their proper malice or through the mischievous counsell of others such women refuse convenable marriage offered by their Lord he may in this case retaine their land untill they be of 21. yeares and longer untill he shall receive the value of their marriage Littletons words upon this statute in his 2. booke cap. 4. BY Littleton if tennant by service of Chivalry die his here female being 14. yeares old or more the Lord shall have custody neither of the land nor body for at that age a woman may have a husband able to doe knights service but if such an heire be under 14. and unmaried at the time of her auncestors death the Lord shall have ward in her land untill she be of 16. yeares age West 1. cap. 22. which getteth the Lord 2. yeares to tender marriage without disparagement and if during these two yeares the Lord tender no such marriage shee may enter and oust the Lord. If such an heire female be married under the age of 14. in the life of her ancestor which ancestor dieth before she accomplisheth 14. yeares the Lord shall have no more but the wardship of her land till shee be 14. yeares old and then her husband with her may enter into her land and put the Lord out for this is out of the Statute because the Lord may not tender marriage to her that is already married for before the Statute of West such an heire female that was under the age of 14. at the death of her ancestor and had atteined afterward to the age of 14. yeares without any tender of marriage by her Lord made unto her might well enter into her land and put out the Lord as appeareth by the rehearsall and very words of the Statute which as it séemeth so saith Littleton was made altogether for the advantage of the Lord. A suspition of Littletons error NOw saving Mr. Littletons inspiration I am greatly afraid that ye shal not finde by the text of the Statute That an heire female being under 14. at the death of her ancestor might by the common law before this Statute enter and oust her Lord as soone as she had accomplished 14. yeare of age without tender of marriage The law perhaps was so but this Statute proves it not Againe I doubt Littleton was deceived in taking this Statute to be all for the advantage of Lords yet it is
other causes for which the bond of desponsation may be taken away as devulgation of kindred vnknowne and opportunity of nuptialls sought by detestable meanes for which cause not only Spousals but Marriage it selfe when it is contracted may be dissolued SECT IX By what authoritie Spousals are to bee vndone TO all these causes of vndoing the first vowes of marriage there must be added the authority of the Bish which hath power to absolue yet the Canons doe without the authority of any Bishops make frée from the Obligation of onely promised marriage all those which abdicate themselues to Religion And Hostiensis contendeth that without authority of any Iudge Spousals are vndone ipso iure by a post-marriage made by words of the present time sed nemo sibi ipsi ius dicere debet no man may bee his owne Iudge And it is certaine that espousals ought neuer to be vndone but by publike authority vnlesse the cause for which wee will haue them vndone be so well knowne that it néedeth neither proofe nor sentence such as is fornication when it is notorious and publike to all the world SECT X. Of Matrimony contracted in the present time and who may contract THose which the Latines call puberes that is they which are come once to such state habit and disposition of body that they may be deemed able to procreate may contract Matrimony by words of the time present for in contract of Wedlocke pubertas is not strictly estéemed by number of yeares as it is in wardship but rather by the maturity ripenesse and disposition of body There is further required in them which contract Matrimonie a sound and whole minde to consent for hee that is mad without intermission of â—ury cannot marry But hee that is deafe and dumbe may contract Matrimony quia non verbis tantum sed nutu signis sensa mentis exprimuntur and as they which are impuberes cannot for infirmity of age make any firme knot of Wedlocke so likewise they which by coldnesse of nature or by inchantment are impotent be forbidden to contract The impediments Ecclesiasticall as vowes Compaternitie and spirituall kindred I will not meddle with But come to kindred of bloud which containeth a principall let and prohibition of Marriage SECT XI Impediment of Marriage by Kindred and Consanguinitie IN the worlds infancie men were inforced by necessity to marry with owne kindred propter hominum pauciâ—atem But that necessity is taken away and long since by the very voice of God they which are in certaine degrées of bloud are forbidden to marry Leuiticus 18. And because Marriage is an aboundant seminarie of charitie and loue it is wisely and profitably ordeyned that it should be dispersed into many families Therefore by Naturall Ciuill and Common Law Marriage is cleane forbidden betwixt all those which are as Parents or Children one towards another in infinitum and betwixt those persons which are of kindred in the transuerse line Marriage is forbidden till the fourth degrée bee past SECT XII The impediment of Marriage by Affinitie THere is further a certaine nigh alliance called affinity quasi fines duarum cognationum coniungens this riseth betwixt them which are married and the kindred of one of them as betwixt the husband and the kindred of his wife now affinity prohibiteth Marriage onely to the persons contracted c. for the Cosins or Consanguinity to my wife are of affinitie onely to me and not to my brothers or children by a former Wife and my bloud and consanguinity are kindred of affinitie onely to my Wife and not to her brothers or former children here is it that the Father and the Sonne may marry the Mother and the Daughter and two Brethren may marry two Sisters in another Family for the Consanguinity of which one is of bloud to the husband and another to the wife are betwixt themselues in no bond of affinity And obserue that in what degree a man or woman is to one of them that are married by Consanguinity they are accompted in the same degree to the other in affinity As the wiues brother who is in primo gradu to his Sister is in the same degree to her husband and their children in the second c. And so forth their Childrens Children which after the fourth degrée are againe by all lawes permitted to marrie contrahiâ—â—â— affinitas per illicitum coâ—â—um SECT XIII Diuersitie of Religion AMongst the hinderances of marriage note this also that by Constitution of holy Church marriage is forbidden betwixt persons of divers Religions as Iewes and Christians SECT XIV Of feare and constraint ALso Matrimonie holdeth not when it is extorted by force or by such a feare as may cadere in constantem virum quia matrimonia debent esse libera SECT XV. Of Marriage detestable made ALso Marriage holdeth not when it is sought or made with wickednes And if a man promise to a woman which he hath adulterously polluted that he will marry her when his wife dyeth c. Or if a man haue sought to abridge the dayes of his lawfull wife to marry another These villanies are such perpetuall cankers in marriage that they doe not onely hinder it to be made but also rend it in sunder when it is made There are other crimes quae distrahunt Matrimonia contracta as Incest cum cognata and rauishment yet if any man rauish a Maide or other vnmarried Woman the Canons doe admit him to marry with her if she consent But otherwise shee shall be rendered to her Father vpon whose suite and accusation the rauisher is put to Capitall punishment There are by the Ciuill and Common Lawes many other impediments of Marriage as susceptio propriae sobolis publica poenitentia caedes Sacerdotis interdictum Ecclesiasticum c. which I will not trouble Women withall SECT XVI Marriage forbidden by publique Constitution BY Ciuill ordinance also Marriage is sometime restrained and forbidden as betwixt him which adopteth and her which is adopted for séeing that they which are adopted are in the place and stead of Children there resteth a League as of kindred betwixt them and the bloud of him which adopteth by the Ciuill Law and Canons both But this Ciuill kindred lasteth no longer then the adopted are in potestate adoptantis Neither is it any obstacle to a Marriage saue onely betwixt the adopted and adoptant and those which are in his power And as adoption hindereth Marriage by the Ciuill Law so by the same lawe a man may not marry her whom hee tooke exposed as a cast-away or a foundling and brought her vp as a Daughter Marriage is also forbidden sometime ratione publicae honestatis as if a Man be diuorced from his wife and afterwards shée hath a Daughter by another man this is no Daughter in Law to the husband yet hée should doe impudently to marry her Those prohibitions of Marriage that were sometime betwixt a Tutor and Pupill betwixt a President and a Woman in
these reasons grounded vpon the Law of nature and giuen by Iustice Stamford in his booke fo 194. saith he to this effect men will now eschew those Capitall crimes when they shall sée those persons who in nature and affection are néerest and dearest vnto them and most to bee beloued shall be punished with themselues so that if themselues will not refraine such crimes for themselues yet they should the rather refraine for the loue of their wife children vpon whom they bring so perpetuall losse and punishment and staine of so infamous a note as that their stocke blood and Lineage shall be corrupted and attainted their children disinherited and the wiues of their bosomes because the wiues of such impious and foolish Husbands by their defaults depriued of all their meanes and liuelihood And Breton fo 258. makes another reason why a wife of a man attainted c. shall lose her Dower est pur ceo que est a supposer que el scauoit del felony son mary and by him a woman lost no Dower in case the felony were committed before Couerture King Edward the sixt in the first yeare of his Reigne abrogating some Statutes concerning treasons or felonie for their austerity and making some new decrees concerning treason preserued Dower against all perpetrations of an euill husband But 5. 6. eiusdem regis ca. 11. by the last prouiso It was againe enacted that no Wife of any person attainted of treason should bee receiued to demand or haue Dower c. Yet for felonie 1. Ed. 6. is still in force And treasons by Act 5. Eliz. ca. 1. for assurance of her Maiesties royall power or by the Act eodem anno cap. 11. against clipping washing rounding or filing of Coynes or by the Act 18. Eliz. ca. 1. against diminishing or impayring the Quéenes Coyne or other coyne currant here doe none of them make any corruption of blood or forfeiture of Dower Note if after attainder the Baron purchase his pardon this is so farre forth a new birth vnto him that his Wife shall haue Dower of the Lands which come to him after pardon if his Issue by her may per possibilitie inherite Par. 75. And remember this Case 3. 4. Phi. Marie Dyer 140. b. Marie the wife of Sir Iohn Gate attainted of treason brought a Writt of Dower against Wiseman the attainder of Sir Iohn was certainly pleaded in barre she replyed that long time before the attainder and before the treason committed after the Espousals the said Sir Iohn Gate was seised in fee of the Land whererof she demands Dower and thereof enfeoffed A. B. whose estate the tenant hath vpon a demurrer without argument at barre or bench the Councell of the parties being heard in Iustice Brookes Chamber the demandant was barred of Dower by opinion of all the Iustices because the Statute is The Wife of a man attainted of any manner of treason whatsoeuer shall in no wise bee receiued to aske challenge demand or haue dower of any her Husbands Lands during the force of that attainder And by Stamford 195. this extendeth to petty treason But nota saith Dyer the Lands here sold and gone before treason committed were neuer subiect to forfeiture or escheate vt in causa Vauisor M. Littleton in the Chapter of Dower And therefore Antho Browne Serieant was angrie at the heart for this Iudgement See Littleton fo 11. per Vauisor If a man commit felonie aliene his land and then be attainted the Wife shall haue action of Dower against the Feoffée but not against the King or Lord if it be escheated SECT XVIII The Husbands power in his wiues inheritance and of discontinuance A Womans Inheritance is Lands of Inheritance which she hath by descent or purchase and her Marriage such as was giuen her in Franke Marriage by learned M. Littleton But take heere all fée-simple or fée-taile which she hath sole by her selfe or ioyntly with some other to be her Inheritance Then know that at Common Law a man seised in the right of his Wife of greene acre may make a feoffement of it to a stranger and this is such an interruption called a discontinuance of the wiues estate that not onely the Baron is bound whilest he liueth but the Wife also when he is dead is by common Law forbidden entry into her owne land and put to her action of cui in vita but if a man seised in the right of his wife be disseised and release to the disseisor though it bee with warrantie this is no Discontinuance If a man seised in fée in the right of his Wife haue Issue by her a sonne and die and then a second Husband makes a Lease of the Land for terme of his life and the Wife dyeth if now the Lessée surrender to the second Baron it is a question whether the sonne can enter during the life of lease for life But cleere saith Littleton when he is dead the son may enter for the discontinuance which was but forthe life was determined If Tenant in the right of his Wife make a Lease for his owne life the reuersion in fée is in the Baron If hee die in the life time of his Wife and of the Lessee and his heyre grant the reuersion with atturnament now though the grantee enter after the death of the Lessee yet the wife may re-enter for as an estate taile cannot be discontinued but by one which is seised by force of the intaile so the estate of a Wife is not discontinuable but by him which is seised in the wiues right SECT XIX Of a Remitter YOu must vnderstand somewhat also of a Remitter And because women learne faster by example then by precept I will not stay to define a Remitter Baron and Feme seised together in speciall taile haue Issue a daughter the wife dyeth the Baron catcheth another wife hath Issue by her another daughter discontinueth the taile disseiseth the discontinuee and dieth now is the Land descended to the two daughters the eldest daughter is remitted that is remaunded and setled in the ancient estate for a moitie and driuen to a Formedone against her Sister for the other moity for here the Sisters are by seuerall titles tenants in common not parceners If Tenant in taile infeoffe a Feme sole and die and then his sonne being vnder age intermarrieth with the Feme Feoffée this is a remitter to the Sonne and his wife which before had fée-simple hath now nothing at all in the land But if the sonne had beene of full age at the time of espousals hee had not regained the ancient estate but stood seised onely in droit sa feme If a Woman seised c. take a husband which alieneth in fee and then takes backe an estate to him and his wife for life this reprisall though it were by Indenture or by fine is meerely the act of the Husband and the woman sans folly is adiudged in her Remitter the reuersion of the
Iudge ought to command execution presently for this benefit shall bee claimed but once If the Iudge inquire further of it it must be but to set a fine on the Marshall or Sheriffe for looking no better to her Stanford lib. 3. ca. vlâ—imo And by the bookes which he citeth the obiection must be not priuiment ensoint but enâ—â—int de viue enfant SECT XLIV Of Treasons ANd this obiection of enseintment is aswell to delay execution for treason as for felony A woman for committing either grand or petty treason shall be burned The latter part of the Statute 25. of Ed. 3. ca. 2 is That if any seruant kill his Master any woman kill her husband or any man secular or religious person kill his Prelate to whom he owes obedience this is treason and euery Lord shall haue the Escheates for such treasons of his owne proper fée the Statute is but declaration of the common law titulo Coronae in Fitzh A woman compasseth with her Adulterer the death of her husband they assailed him riding on the high way beating wounding leauing him for dead and then they fled The husband got vp leuied hue and cry came before the Iustices they sent after the offendors which were gotten arraigned and the matter found by verdict the adulterer was hanged the woman burned to death the husband liuing voluntas reputabitur per facto 15. E. 2. A woman seruant conspired to rob her Mistris and brought a stranger to the bed-side where the Mistris lay asleepe the stranger killed her the seruant silent nothing doing but holding the Candle the two chiefe Iustices and Hâ—re thought the seruant a Traytresse and a principall 2. 3. Eliz. Dyer 128. yet Mistris is not verbatim in the Statute Stanford was one of them against the chiefe Iustices opinion in this case yet in his owne booke he teacheth that abettors procurers are within the meaning and intent of the Law The seruant and the wife conspire the husbands death he is killed by the seruant in absence of the wife this is petty treason in them both by opinion of diuers Iustices otherwise it is if the murtherer be no seruant Dyer 16. Eliz 332. for Saunders wife which procured Browne to kill her husband but barely hanged as accessarie because the principall was but a murtherer 8. Eliz. Dyer 254. SECT XLV Actions by Baron and Feme together THe baron and feme may ioyne in a writ of trespasse quare vi armis clausuÌ„ fregit c. for trespasse done in the wiues land either before couerture or during couerture Sée 21. H. 6. fol. 30. such a Writ brought of trespasse in the Close of Baron and Feme and féeding vp blada sua Iudgement is asked of the Writ because a Feme couert hath no propertie in goods and chattels during the couerture The Declaration saith Markham is blada sua dum sola fuit depastus fuit That saith Newton is not possible but it ought to be blada ipsius Katherinae c. Yeluerton saith that both the Writ and Declaration ought to haue béene Dum sola fuit which Newton denies and saith that the Count ought only to be so and affirmeth that as the matter is brought forth there is an intendment of depasturing before couerture and of breaking the Close after couerture of which the Baron and Feme may haue a Writ Clausum suum fregit c. So the Action seemeth to be by two seuerall titles But in the end the record was viewed which was Quod clausum ipsius Katherinae fregit blada eiusdem Katherinae depastus fuit and the Declaration Dum sola fuit which made the Writ to be awarded good And there it is said that by the Register the Writ is not Dum sola fuit but generall and the Declaration speciall Yet 7. H. 7. fol. 2. vpon the like Writ of Quare clausum fregit bonâ— catella sua cepit which Declaration of trespasse to the Feme Dum sola fuit iudgement being giuen was afterwards found erroneous for fault in the Writ which should haue béene not bona sua but bona ipsius le Feme and therefore a Repleader awarded The baron feme may haue a Writ of trespasse of assault made to the Feme and imprisonment of her vntill the Baron compounded and paid a fine and the briefe and count shall be ad damna ipsorum quod nota 46. Ed. â— 3. Nota per Cuâ—iam saith Brooke Baron and Feme may ioyne in appeale De â—â—pe le feme for the husband alone cannot haue it without his wife 8. H. 4. fol. 21 The case there is A woman prisoner in the Marshalsey makes a suggestion to the Court that the Marshals man had rauished her in prison Gâ—scoigne commanded the Marshall to take his man to his custody and his staffe from him and the Court told the woman that she alone could not bring appeale sans son Baron but if her husband would come and they two together would proue the rape the rauisher should be hanged By this case it is plaine that the wife alone cannot haue the appeale but the Baron and Feme may haue it But neither by this case or any other statute can I finde that the baron may not haue it alone Whether ne vnque a couple in loyall matrimony be a sufficient plea in this appeale and whether he which is but Baron in possession only that is that husband which is at the time of the rape may haue it quaere and see 11. H. 4. 13. Baron and Feme may ioyne in a Writ of Debt and 16. Edw 4. fol. 8. such a Writ brought for arrerages of account with Declaration that the defendant was the wiues receiuer Dum sola fuit puraccount render and that the Baron and Feme after espousals assigned Auditors which found the defendant in arrerages c. Insomuch as the ground of the Action begun by the wise and the assignment of the Auditors was pursuing And likewise by the wife they might ioyne So if an Obligation be made to Baron Feme they may ioyne in a Writ of Debt and if the Baron die his wife and not the Executors shall haue the Action 3. H. 6. fol. 37. Per curiam Baron and Feme may ioyne in a Writ of Debt vpon an Obligation made to them during couerture And Babington affirmes that the Baron may haue the Action alone if he will 43. Ed. 3. fol. 10. such a Writ was brought and exception taken that it ought to haue been by the husband alone sed non allocatur Though for chattels vested as goods that are giuen to a man and his wife the Baron alone must pursue his Action for taking them out of his possession Otherwise it is of matters consisting onely in Action c. for they suruiue to the Feme like to a Lease granted to Baron and Feme for yeares So is it of rauishment or eiectment of Guard for these are Chattles reall But if
That the Charters ought to concerne the land whereof Dower is demanded and not other lands descended to the heire 2. He that pleads that plea ought to shew the certainty whereof a certaine issue may be ioyned or that they are in a chest or box sealed which import sufficient certainty whereof certaine issue may be taken and in both cases action of detinue may be brought by the heire 3. No stranger although that he bée Tenant of the land and hath the euidences conueyed vnto him may plead in a Writ of Dower deteiner of Charters but that plea is only in prinity for the heire of the husband Also the heire shall be in the degrée of a stranger in fiue cases First if the heire hath the land by purchase Secondly if the heire hath deliâ—eâ—ed the Charters to the wife Thirdly so the heire be not immediate vouchee namely by the Tenant in the Writ of Dower but by his vouchée Fourthly if the heire comes in as vouchée hauing no lands in the County where the land is demanded Fifthly if he comes in as Tenant by receit And Gardian in Chiualry may not plead deteinement of Charters for hée may not conclude his plea if the Demandant will deliuer to him the Charters c. for the Charters which concerne the heritage of the heire shall not be deliuered to the Gardian as it is adiudged in 10. Edw. 3. 49. SECT XI Deteining of the heire AS the heire only may deteine Dower for deteining of euidence so the Gardian in Chiualry onely may deteâ—â—â— Dower for deteining the heire and that he may plead and conclude qÌ„ il ad en touts temps prist for the ward belongeth to him If a widow eloigne the infant or heire of her husband though some other body haue him by her deliuery yet the Gardian in Chiualry may detaine Dower except shee can redeliuer him to the Gardian in as good plight as hée was at the time of the eloigâ—ment that is vnmarried if he were eloigned vnmarried But a woman nourishing her owne Infant the sonne or heire which her husband left her if a stranger clauning as Gardian fake him from her the right Lord shall not detaine dower for this cause But if a woman take and remoue the heire from the place where hee was nourished at time of the Barons death Now if a stranger wrongfully take him from her the true and right Gardian may detaine dower And this matter is pleadable by Gardian in Chiualrie though hée come into Court by reason that the heire is vouched to be in his ward for by right the custodie of the Infant can appertaine to none but to him vnlesse it be by his grant or agréement Certaintie is required in pleading of this detainer aswell as in the other viz. that she which demandeth dower hath eloigned or detained I. S by name son or daughter W. c. 22. H. 6. fol. 16. 2. H. 7. fol. 6. SECT XII Possession in the Demandant 39. Ed. 3. 17. DOwer was demanded a third part of a carue of land the tenant said the demandant her selfe was seised of a third part of it already Iudgement de briefe per Knyuet it was no good plea without shewing who assigned it or that she recouered it For if shee were in by disseisen shee must haue dower of the other two parts remaining neuerthelesse by which the tenant was chased to answer for the two parts 7. oâ— H. 6. 33. 34. In action of dower against tâ—â— one said he had assigned rent out of the land six shillings and eight pence annuall to the demandant for terme of her life which she accepted c. The other pleaded touâ—s tâ—mps prist c. The assignment was holden a good plea c. the demandant said she neuer agreed Now per Strange she was to recouer a moytie maintenant though the other plea were not yet tried for this was a confession of one and pleader in bar of the other 2. H. 4. fol. 7. A Lady sued in Chancerie to be endowed of diuers Mannors which were her husbands where the heire was in gard of the King as was found by the Diem clausit extremum there returned and because it appeared that King Richard had committed wardship of the lands and body of the heire till full age of the said heire to her by patent without foreprise or mention of dower shée was ousted of dower per agard de toutes les Iustices till full age of the heire simile 11. of H. 4. in case of the Lady Arrundell Fitzherbert saith likewise If a woman take a lease for yeares of land whereof she is dowable she shall not sue for Dower during these yeares Nat. br 149. c. Bracton propoundeth to be considered what shall be done when the widdow brings her Writ of Dower vnde nihil habet and yet it is so that she hath part of her Dower already If saith he it be proued or she cannot deny it cadit breue and she shall not recouer the residue but by Writ de recto de dote Therefore let her accept no part of her Dower before she purchase her Writ and let it containe all the Deforcers be they in one Countie or in many When they are so put together if now she accept any thing of her Dower without Iudgement the acceptation of part shall be no exception against her for she may confesse satisfaction for that part If peraduenture shee haue already taken part of her Dower from some one person before the obtaining or purchase of her Writ let his name and the summons for him be in the Writ notwithstanding and then if it be obiected she hath accepted part shee may acknowledge that hee hath satisfied her for his part and whether before or after suit is not greatly to be stood vpon But if he of whom she receiued part be not named in the Writ she cannot against the obiection of acceptance reply that the land which she accepted is not in the same Towne but in another For vnde nihil habet in the Writ non debet referri ad villas sed ad dotem It is nothing worth therefore to say she hath nothing in tali villa if she hath any thing nomine dotis wheresoeuer it be it is not then materiall And when a woman replyeth nihil habet her defence shall not be per legem that is wager of Law but per patriam Likewise if a woman plead that she hath nothing nomine dotis but by some other title as ratione custodiae huiusmodi Inquisition may be in the Countie where it is supposed shee receiued Dower to finde whether shée haue any thing in Dower of the tenements which were her husbands and if shée had and now hath not to enquire what is become of it this was a Norâ—â— case of Holda the late wife of W. in Trinitie Terme 4. H. 4. as Bracton in his fourth Booke 13. Chapter and fol. 312. relates vnto me SECT XIII Ne
the husbands Ancestors that they should doe nothing preiudiciall to the heires But in this case there came no Ioynture from the husband but contrariwise the wife had made a Ioynture to her husband and after his decease to bridle the woman to doe what shée listed with her owne inheritance were against all reason and as farre from any affinitie with 11. H. 7. as it should be when a woman seised in Fée simple giues lands to the father of him whom she intends to marrie to the intent that he regrant this land to his sonne and her after marriage with a remainder in taile c. to restraine her when after marriage regranting and death of the husband she should leuie a fine to other vses or suffer a recouerie which case though it be cleane out of the Statute yet it is within the words for the â—oynture was made by the Barons Ancestor though not originally c. And so note those two cases of Plowd one is taken to be within the intent though out of the letter and the other though within the letter yet out of the intent and yet both constructions most reasonable and iust And see Sir George Brownes case Sir Edw. Cokes â— Râ—p that a lease made by a woinaâ— tâ—nant in taâ—le of the gift of her husband c. make a lease for thrée liâ—sâ— that is not warranted by the Statute of 32. H. 8 and although the lease be without clause of Warrantie yet it is within the Statute of 11. H. 7. for those words in the act with warrantie refer to releases and confirmations which makes no discontinuance without warrantie for the inteâ—t of the Act is to proâ—ibit not onely euerie barre but â—ueriâ— manner of discontinuance which puts the heire to his reall action And in that case it was resolued that if the issue in taile had before the womans for feiture granted his remainder onely in that case hee by the exâ—resse letter of the Act shall enter vpon the discontinuance of the woman for his act doth not biâ—de his estate But when the issue in taile leuie a fine with praclamation in the life of the woman tenant in taile c. that shall binde the taile and therefore there the Conusée shall enter for hée which hath the immediate title interest or inheritance at the time of the for feiture shall enter by that Statute And it was said by Anderson Chiefe Iustice of the Common Pleas that where it was inâ—ented for to makâ— euaâ—â—â—ne out of the Statute that if such a woman tenant in taile accepts a fine sur conusans de droit come câ—o c. and by grant and renders the land for a thâ—usand yeares that is an alienâ—tion within the intention of the Act although the words of the Act are discontinuance aliâ—nation c. and of that opinion was Wâ—ay Chiefe Iustice and Dyer and all the Court of Commoâ— Pleas was of the same opinion 18. Eliz. And in Sir Edw. â—okes 3. Rep. Lincolne College case It was resolued that if the heire in taile conuey the lands to others and the woman tenant in taile release or maks conâ—â—râ—nation with waâ—rantie which is not but to perfect and corroborate the estate which the heire in taile hath made such a warrantie is not restrained by the said Act for that which the woman hath done is for the benefit of the heire and not for his preiudice and by his aâ—â—ent And she and the heirâ—â—â—ight haue iâ—yned a fine and so barre the estate taile not with standing the Statute of 11. H. 7. therefore such Acts by the woman shall not be void to grant the hâ—ire or any else any aduantage by the Statute of 11. H. 7. And note the opinion of Sir Edw. Coke in the said case of Lincolne College that the sonne borne after shall by this Statute out the daughter who entred for forfeiture and â—â—ewâ—â— other opinions concurring yâ—â— in Dyer 21. Eliz. 362. the heire in such a case is said to be in by purchass And note Reader that it hath â—â—â—ne adiudged that although the Déed of conueyance and assurance of the womans Ioynture or estate dâ—therpresse her marriage portion as well as her marriage to â—e the cause and consideration of such Ioynâ—urâ— or â—statâ— yet if the estate prâ—â—éds from the husband or his Ancestors she is within the said â—tatute of 11. H. 7. and sâ—e Villers and Beauâ—â—â—ritâ— case 4. Mar. 146. But â—â—â—uâ—râ— if the portion money appeare to be the full price of the land if that differ not the case Sée Sir Edw. Cokes Comment vpon Littleton 365. These â—ases put a man seised in Fee leuie a fine to the vse of himselfe for life and after to the vse of his wife and of the heires males of her body by him begotten and had issue male and after he and his wife leuied a fine and suffered a common recouerie the husband and the wife died and the issue male entred by the Statute of 11. H. 7. and the entrie was â—olden lawfull and yet this caâ—e is out of the letter of the Statute for she neither leuied the fine c. being sale or with any other saue her husband who made the Ioâ—â—ture Sed qui â—aeret iâ— littera â—aeret in cortice and therefore this case being within the 〈◊〉 of the Statute is within the remedy But 〈◊〉 〈◊〉 that this case was deâ—yed for Law by the Râ—â—â—rder oâ— London in his argument in the case hereunder 〈◊〉 betweene Copland and Pyat Another case in Sir 〈◊〉 Cokes Commentaries vpon Littleton which agrée with Eiston and Studs case in Plowd is A man seised of land â—ure vâ—oris and they two leuie a fine and the 〈◊〉 grant and render the land to the hâ—sband and wife in speciall taile the remainder to the right heires of the wiâ—â— they haue issue the husband dieth the wife taketh another husband and they two leuie a â—â—ne in Fée the issue entreth this is within the letter of the Statute and yet is out of the meaning because the state of the land 〈◊〉 from the wife so as it was the purchase of the husband in letter and not in meaning But where the woman in â—â—nant for life by the gift or conueyance of any other â—â—â— alienation with Warrantie shall binde the heire at this day The case of Copland and Pyaâ— adiudged Hillar 7. Car. in Banâ—â— Regis in effect was thus I. S. his sonne was to marrie to the daughter â—â— I. N. And the Deed 〈◊〉 that I. N. for thâ— consideration of foure hundred 〈◊〉 paid by I. S. and of a marriage c and for the 〈◊〉 of the bloâ—â— of I. N. coâ—enants to stand seised to the vse of the sonne â—â— I. S. and his daughter whom the 〈◊〉 of I. S. should marrie â—â—taile the remainder to another 〈◊〉 of I. N. thâ— remainder to the hâ—ires of I. N. 〈◊〉 dieth hauing issue and the wife alieneth by 〈◊〉 〈◊〉 〈◊〉 was resolued that it was not within
it is great pâ—â—ulancie in any widdow that slippeth to second wedlocke wâ—ilst she yet nourisheth in her wombe the pledge of vnâ—â—n and loue betwixt her and her late husband I thanke God I cannot say that I haue knowen in my life time any widdow so wantâ—n In old time women vsed now and then to saine themselues left with childe and to bring forth borrowed brats to depriue the Deceaseds right heire of his inheritance sometimes of their owne mischieuous malice and deceitfulnesse and sometime by consent and combining with the Lords of whom the lands were holden Bracton in his second Booke cap. 32. hath a large discourse De partu supposito and there is a Writ to the Sheriffe to call before him and the Kéeper of Pleas of the Crowne the woman that pretendeth to be enseint to haue her examined by tractation and search of good and lawfull women per vbera per ventrem whether she be pregnant or no and if the matter he found doubtfull to commit her to a Castle and warie custodie without accesse of any suspected woman Quâ—usque de partu suo corstare possit But this is a péece of learning so obsolete and worâ—e out that I thinke since I was borne and a long time before there neuer was any such Writ put in â—re I conclude therefore that our widdâ—wes now adayes are honester than they were in Henry the thirds time in the fifth yeare of whose reigne Mariell widdow of William Constable de Mauton in Comitat. N. rff practised this cousenage widdowes of this age are nothing so deceitfull though deceiued sometimes by bad husbands THE WOMANS LAWYER The fifth BOOKE THe widdow married againe to her owne great liking though not with applause of most friends and acquaintance But alas what would they haue her to haue done she was faire young rich gracious in her carriage and so well became her mourning apparrell that when shee went to Church on Sundayes the casements opened of their owne accord on both sides the stréets that bachelours and widdowers might behold her Hic trahebatur â—lle erâ—â— cunctis amor vnus habendi Her man at home kissed her pantables and serued diligently Her late husbands Physitian came and visited her often The Lawyer to whom shee went for councell tooke opportunity to aduise for himselfe If shée went to any feast there was euer one guesâ— sometimes two or thrée the more for her sake If she were at home suitors ouertooke one another and sometimes the first commer would answer the next that she was not within All day she was troubled with answering ê‘etitions And at night when she would go to rest her maid Marion was become a Mistris of requeâ—â—s and humâ—le supplications This kinde of life the widdow liked not I aske againe what she should haue done he to whom she gaue a denâ—all would not take it if shee denied him twise hee said two negations made an affirmation and hée challenged promise therefore to set mens haâ—ts and her owne at rest shee chuse amongst them one not of the long robe not a man macerate and dryed vp with study but a gallant gulburd lad that might well be worthy of her had hee béene as thrifty as kind hearted or halfe so wise as hardy and aduâ—nturous This youth within lesse than a yeere had set the Nuncios which his predecessor kept in prison at liberty round about the Countrey the bags were all empty the plate was all at pawne all to keep the square bones in their amble and to relieue Companions One of which notwithstanding that had cost hâ—m many a pound for none other quarrell but vous meâ—tes challenged him one day into the field which was appointed and there my new married man was slaine Now his wife will bring her Appeale SECT I. Appeale of the husbands death BY Bracton li. 3. cap. 29. A woman can haue an Appeale but only in two cases per quod alicui lex debeat apparens adiudicari As in case where iniury and force is committed against her person by rauishment or when her husband is killed imer Brachia iua This forme of appeale therefore is A. late wife of B. appeales â— that whereas B. her husband was at such a place such an houre such a day and such a yéere C. came with force â—equiter in felonia contra pacem regis and killed him betwixt her armes and that he did this against the Kings peace and fellonioâ—sly shee will proue and maintaine as the Court shall thinke good Againe the same A. appeales E. of this that at the same place the same yéere day and hâ—wer E. â—ame with C. felloniously and against the Kings peace and held B. till C. killed him c. If hée which is appealed de facto were taken vpon the fact with his knife or sword all bloudy and this veryâ—â—ed by Testimony of good and lawfull men non erit vâ—terius â—â—quirenâ—â—â— Thus Bracton Now let vs â—â—â— how shee shall be vnderstood there is no doubt but a woman may haue other Appeales besides thâ—se twâ— of rape or death of her husband 11. Hen. 4. fol. 9â— An Appeale of Robbery was brought by a woman the defendant said the Appealant was his 〈◊〉 iudgement si el â—erra respondue and to the robbery non culpaâ—le So that hee pleaded to the fellonie and the â—â—â—fty admitted a good plea And a woman may haue an appeale of may hem 13. Hen. 7. 14. Hussey saith it was demanded of him for a doubtfull question where parish Clarke â—ell out with another man and threw the Church â—â—re keyâ—s at him with such force that they â—â—ang out at the Chamber window and put out a womans eye whether it were may hâ—â— or no And for the euill intent of the Clarke it was déemed may hâ—â— but consideratiâ—n ought to be had in aâ—â—eâ—â—â—ng â—aâ—â—ages But true it is a woman shall not haue appeale of any mans death saue only of her husbands therefore if a man bee killed that hath neither wiâ—â— nor sonne but his next heire is either daughter sister or female Cosâ—â— albeit he hath many other â—â—â—red Eâ—siâ—s or Vâ—eâ—es the proâ—â—â—ity of a female heâ—â—e â—â—â—es away the Appeale quite and cleane for of â—â—â— Ancestors death if he had no wife the Appeale belongs ouer to the heire who here cannot haue it because it is a female for Mag. Char. doth directly dâ—ny it â—ap 34. Nâ—llus câ—pictuâ— aâ—â— imprisonetâ—â— propter apellum â—eminae de moâ—â—e aâ—â—â—â—â—uâ— quam viri sui And vpon such an Appeale brought by an heire female the Defendants cannot bee arraigned at the Kings suit because the Appeale was neuer good Neither shall the Defendants recouer dammages because as Shard maketh the reasoâ— hee may bee arraigned and condemned otherwise ad Sectam regis for any thing yet done to the Contrary 27 Aâ—â— p. 25. A daughter or sister c. can haue none Appeales of a fathers or brothers death no more can a mother haue Appeale
of the death of her sonne If a woman haue issue a sonne which is murdred and there is no heire to him on the fathers side by Billing chiefe Iustice Needham and Choke none vncle nor other kinsman which must coâ—â—â—y as heire by the mother can haue the Appeale because the Statute before remembred excludeth her from whâ—m they must deriue Briaâ— Littleton Nâ—ale and the chiefe Baron are contra For said they the Vâ—cle on the â—â—ther side may haue Appeale of the Nephewes death which the father from whom the Vncle must conueigh 〈◊〉 haue any more than the mother But Billing tels them the Cases are nothing like for a father may haue an Aâ—peale of his Ancestors death but so cannot another iâ— any case the bridge therefore being once broken â—d eâ—â— the meane of conueyance stopped and disabled the Appeale is altogether and for euer taken away â—7 Eâ—â— 4 fol. 1. And so is it adiudged likewise â—0 Hen. 6. fol. â—â— where there was grandfather mother and sonne the mother died the grandfather was murthered the sâ—nnâ— might not haue Appeale because hee conueyed by a woman scilicet by his mother and there it was stood â—â—â— that an Appeale shall neuer discend but hee to whom it first falleth shall haue it and if he dye the Aâ—tion dâ—â—â—â— It is a good case well argued in the booke at large Sée the booke of 11. Hen. 4. 1â— It appeares that in Appeale oâ— Rape by the husband ne vnques accouple c. nest pâ—â—â— for the husband in Act or possession shall haue that wâ—erâ— the marriage is not void and yet that plea is good in Appeale by the wife of the death of her husband for there shée shall not râ—uenge his death to whom she was not lawfully married and see 50. E. 3. 15. Brâ—â—â—on agrées with Bracton qui null â—ee puisseare appeller de felonie de mort â—orsque de mort son baron â—uâ— deins â—â—â— lâ—â—our enter ses braâ— And it is true that by the ancient Law neither woman or other person might haue appeale of death vnlesse the appellant â—â—â—â— prâ—sâ—nâ— or did sée the dead man at the tiâ—â— when hee was slaine But the Law is changed by â—loâ— cap. 9. which willeth that no Writ henceforth shall goe out of Chaâ—â—â—ry for the dâ—â—â—â— of man to enquire whether a man killed another by â—â—â—aduenture or in his owne defence or â—therwiâ—e â—eâ—â—niouâ—â—y but he shall remaine in prison till the comming of Iustices errants or gaiâ—â— deliuery and before them put himsâ—lfe to the country for triall of good and euill And if it â—e â—ound by the couâ—try that what he did was â—â— his owne defence or by â—â—sadâ—enture the Iâ—â—â—â—â—es â—â—â—ll dâ—e the King to wit and thâ— King doe the party grace â—â—luy pleiâ—â— Also it is prouided that no Appeale shall be â—â—â—ted si le gâ—â—r menâ— come 〈◊〉 aâ—â—eâ— â—uâ— if the Appeal ouâ— shew tâ—â— dâ—â—d the yâ—â—re the day and â—oâ—â—â— â—â—â—â—mps lâ—â—â—y the Towne where and the weapon wherewith the sâ—aughter was committed â—he appeale shall stand goâ—d and â—â—â—â—e appeale shall bee abated for want of â—resh â—uâ—â— iâ— it bee perâ—â—ed within a yâ—â—re and a day after the â—â—â—t coâ—â—iâ—â—â—d Before this Statute the Appellâ—nt alwayes 〈◊〉 oâ—â—â—s proper view â—ow â—â— nâ—â—ds not The 〈◊〉 â—hat â—â—â—ll â—â—ing â—his appeale 〈◊〉 be wiâ—e to thâ—â—aâ—â—◠〈◊〉 â—◠〈◊〉 〈◊〉 â—or â—â—enâ— accouple in loyall matrimony is a good plea in barre oâ— her appeale as before is said But this plea is not so perâ—mptory but that after the Bishop hath â—â—◠〈◊〉 â—â—yâ—â—ment â—ccoâ—â—â—e c. the Defendant may afterward â—â—â—ad non culpable and this in 〈◊〉 in vitâ—â— but he cannot â—â—â—ad on to the fellony immediately vpon the â—â—rst plea. Therefore here is requisâ—te two trials as it séemeth 50. â—â— â—â—â— Idem 27. 〈◊〉 p. â— Furthermore it is requistâ—e that she be sole and vnmarried married that made this Appeale for if she marrie again 〈…〉 her Appeale is gone though the new married husband be dead within the yeare and day after his death that was slaine Yea and not onely a widdow which hath an Appeale hanging abateth her Appeale and loseth it for euer by new marriage but also if after Iudgement and before execution she take an husband she loseth execution of the Iudgement 11. H. 4. fol. 48 By Brian and Hussey 2â— F. 4 fol. 72 72. If a woman pursue her Appeale till the Defendant be outlawed and then marrie she may sue execution And so did Skrâ—â—nâ— hold the Law to be in the 〈…〉 â— â— â— â—ut Gaseoâ—gâ—e Chiefe Iustice denyes it And â— or 2. Mariae Brooke Appeale 100 the Iustice of the Kings Bench did all agrée that a widdow loseth her Appeale by taking of a second husband Et idem videtuâ— saith Brooke de executione for the reason wherefoâ—â— this Action is giuen to a widdow is not as Glanuell makes it Quia vna caro est v 〈…〉 vxor For then the Baron might haue an Appeale Dâ— morte vâ—oris which is neuer granted but her heire shall haue it And if the wiâ—â— kill the husband his heire shall haue the Appeale And I hearâ— saith Stanford Pleeâ— de Coron fol. 5â— it hath been adiudged If she King pardon the woman all manner of treasons the heires Appeale is gone But the true reason why a woman hath the Appeale De morte viâ—i is because by his death shee is thought lesse able to liue and maintaine her selfe so said the Iudges in Q 〈…〉 ne Maâ—â—â—s dayes and that therefore when she taketh another husband ccâ—â—ante causa ceâ—â—at effectus and her Appeale is gone like as a widdowes Quarentine is determined when she is once remarried But where a woman continueth sole she 〈…〉 d â—â—ne other shall haue this Action either in her life or after though she dye within the yeare and before Appealâ— commenced 20. H. 6. 42. It is not requisite that the Appellant here â—e dowable of his possessions which is slaine for though a woman â—lope from her husband and neuer be reconciled yet 〈…〉 may haue Appeale of his death per Iâ—glibie 50. â— â— 15. Sir Edw. Cokes Comment vpâ—n Littleton fol. 3â— saith That if the Baron be attainted of treason c. his wife shall not be indowed and yet if any doe kill him the wife shall haue an Appeale So likewise agrées the Booke of 35. H. 6 58. where in an Appeale de morâ—â— viri the Defendant said the Baron wâ—s indicted arraigned forâ—d culpable and iudgement to be hanged c. and to the felonie nient culpable It was agréed that there is no such corruption betwixt a man and his wife by Attainder as is the corruption of bloud betwixt a man and his heire for the heire of a man attainted shall not haue an Appe 〈…〉 e and she is his wife notwithstanding the Attainder but the other is not heire And per Markham If an Appeale bee not good the Defendant shall not bee arraigned
father of Elizabeth William Venor dyed without issue and Elizabeth being sole seized was afterward rauished by Iohn Worth which after that hâ—â— had married her was indited of rape and tooke â—anctuarie at Westminster Elizabeth his wife being there with him was aduised to disassent and to part from him to saue her inheritance which she refused to doe and was afterward brought before the Councell in the Star-Chamber being there demanded if she assented or not and shée answered that Iohn Worth was her husband and she would not forsake him whereupon the issue of Robert Babbington Robert being dead entred vpon her land by the Statute of 6. R. 2. which willeth saith â—rookâ— if any woman assent to the rauisher that he to whom the land should descend reuert remaine or escheat may enter And though it were contessed that there was another person more neere in bloud to Elizabeth than was this issue of Robert Babbington yet because he was next in remainder his entrie was lawfull But Elizâ—beth did â—ust him and hâ—â— brought an Assise Then to proue the assent it was giâ—en in â—uidence that she had married him assenting to him as well in Sanctuarie as before the Councell And for Elizabeth it was alleaged that the espoâ—saâ— and all the assentings were by dures and force and for feare of the rauisher which might not be called assenting for none consenteth but frankly voluntarily and sans féare Quod videtur Lexibidem But in the end because shée might haue disagréed before the Councell and did not her assent was holden voluntarie and the Assise passed for the Plaintiffe And it was agreed for Law that if title of entrie into lands be giuen to a daughter by force of this Statute and she entreth that she shall retaine and enioy them notwithstanding the birth of any sonne Posthumus comming afterward though he be more néere or worthy of bloud And so it is generally where the entrie is giuen by Statute but if by Common Law adiscent bée cast vpon a daughter which entreth shee must giue place to a sonne borne afterward It was remembred in this case that in former time a woman being rauished after she had continued seuen yéeres with the rauisher and had borne him a childe escaped from him and sued in Parliament in the time of H. 6. against him till he was attainted And being demanded how she could now say that she neuer assented hauing conceiued c. shee answered that her flesh consented to him but her soule and conscience did euer abhorre him 5. E. 4. fol. 58. SECT XXXVIII The Statute 18. Eliz. cap. 7. I Am at the end of my voyage but before I take shore I will â—hew you how our late most excellent Law-giuer renowned Quéene Elizabeth whose vigilant care hath alwayes béene that all her people might liue vnder her in peace and without oppression hath giuen strength and perfection to the former functions of other Princes to make them a firme bulwarke against all manner of iniurers that possibly might oppresse women and I can but maruell that when so daâ—â—ablâ— a crime â—â— rape had giuen so often to the whole Realme such cause of bitter complaint and men in sundry ages had beaten their braines so carefully in finding out remedy against it how it was possible so long space together to leaâ—e such a priuilege to him that could read the blessed Psalmâ— of Miâ—erere c. that though hée had rauished the fairest Lady in the Land hée might almost goe away without touch of breast for it Therfore the eightéenth of Quéene Elizabeth for repressing of felonâ—ous rapes and rauishments of women and of felonious Burglaries it was enacted that they which were found guiltie by verdict or by confession or outlawed of or for such felonious Rapes or Burglarie they should suffer death and forfeit as in cases of Felony had béene vsed by the Lawes of the Realme without allowance of priuilege or beneâ—â—t of Clergie Further that they which were in other cases to haue benefit of Clergie should immediately after burning in the hand according to the Statute in that case prouided be forthwith enlarged by the Iustices and not be deliuered to the Ordinarie But yet that the Iustices before whom the Clergie shall be allowed may detaine such persons in prison for correction as long as they shall think conuenient so it be not aboue a yéere Then because in the fourtéenth yéere of her Maiesties reigne as you may perceiue in Dieâ— fol. 304. in the case of a Scot which had rauished a girlâ— being not past seuen yeeres old the Iustices were in doubt whether rape could be of a childe of such tender yéeres not yet nine yeeres old and therefore they went not to iudgement of the Scot though by euidence of diuers Matrons he seemed guiltie this Statute ordaineth that if any person vnlawfully and carnally know and abuse any woman childe vnder age of ten yeeres euerie such vnlawfull and carnall knowledge shall be felonie and the offender being duly conuicted shall suffer as a Felon without allowance of Clergie And as M. Lambard and M. Crompton doe both of them note it is not materiall whether she consent or no for the Law adâ—udgeth her vnable to consent at so tender age The last prouiso of this Statute is that they which are admitted to their Clergie shall answer to all other manner of felonies whereof they haue not formerly béene acquited conuicted attainted or pardoned as they should haue done if as Clerkes conuicted they had béene deliuered to the Ordinarie and made their purgation SECT XXXIX The Statute 39. Eliz. cap. 9. LAstly because this exemption of Clergie was leuelled onely against Burglaries and felomous rapes by violence and of the antique Faulkoners fashion leauing vnto couetous rautshers by abduction and I might say by insinuation the benefit of their Booke by reason whereof diuers maids widdowes and wiues had of veriâ— laâ—â— dayes béene first carried away and then defiled married c. It was enacted at the first Parliament begun Ann. 39. of the late Quéene Elizabeth That whosâ—euet shall be conuicted or attainted of or for any offence made felony by the Act aboue specified 3. H. 7. or which being indited or arraigned of or for any such offence shall stand mute or make no direct answer or shall challenge peremptorily aboue the number of twelue shall in euerâ—â— such case suffer death without benefit of Clergie prouided that nothing in this Act contained shall extend to take Clergie from any person or persons which â—â—â— not either principals or procurors or accessaries before the offence committed SECT XL. The Conclusion THus haue I sailed betwixt the capes of Magna Charta and Quadragesima of Queene Elizabeth collected the statutes principally belonging to women conioyning customes cases opinions sayings argumeuts iudgements and points of learning of like sort and subiect dispersed in our Law books now comming to take hauen God grant I may fall in at port Grace and good acceptance of all that shall read what I haue gathered they which are lesse learned than my selfe in this studie which I accompt to be those that haue but newly taken acquaintance of Littleton may spend some tâ—me here not without some fruit and profit They that are better learned than I into which company some may crowd that perhaps might bee challenged of intrusion will giue mee no thankes for my paines Rather I must thanke them if they vouchsafe to read them without open scorne and bitter censuring but they to whom my trauels are chiefly addressed are women so many as beare the title of honest women how good and vertuous soeuer they be I sâ—e not how they can scape the taint of ingratitude if they giue not a reasonable fauour and applause to my good intention and labour whereby things behoouefull for thâ—m to know are laid plaine together and in some orderly connexion which heretofore were smoothered or scattered in corners of an vncouth language cleane abstruded from their sex Which concealement because it seemed to me neither iust nor conscionable I haue framed this worke admonishing them not to take it for so strong and substantiall a péeâ—e as London bridge is whereon you may boldly set vp great builâ—ings but I willsay to you as Littleton said in his Tenures to his sonne There â—ée some things in these Bookes which are not Law yet euen those may enable you the better to vnderstand the reasons and arguments of Law and to conferre and enquire what the Law is amongst the sage Masters thereof FINIS