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
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
setting it abroach but the curious learning w. is that of spirituall kindred caused either by holy Baptisme or by the blessed Chrisme and this had power impediendi Matrimonium contrahendum dirimendâ— matrimonium contractum yea this was such a matter that 39. Ed. 3. fo 32. Bastardie is pleaded against the Plaintiffe in assise and the cause was that the father married a woman before which Marriage he had christned â—â—â— which was his Wiues cousin and for this cause after and of them was dead Diuorce was sued and Iudgement thereof giuen in the spirituall Court though indéed by Iustice Thorpe and the greatest opinion in the temporall Court the Issue could not be bastardized vnlesse the Parents had beene called and the Nuptials destroyed by sentence which was now impossible to doe for death had determined them Out of question therefore if the parties had liued a little or no Kindred had marred great good acquaintance But howsoeuer by those dayes secular Marriage was forbidden in spirituall men and secular men were straightly prohibited by spirituall Spirituall Kindred the Statutes afore-going haue now welcommâ—â— Wedlocke cleane out of the Popes stockes And the 18. of Leuiticus alone doth in a manner sufficiently demonstrate with what persons Women are restricted to marry SECT XXX With what persons Women may not marry SUch are her Grand-father her Father her Sonnes Sonne c. her Brother though it be but the one part her Fathers or Mothers Brother her Brothers or Sisters Sonne or her Sonnes Sonne Brothers or Sisters Children saith Ramus in his Commentaries of Christian Religion lib. 2. ca. 9. are forbiden to inter-marry ed more non lege Diuina vel Romanâ— Christians he saith further which haue abrogated the Law 25. of Deuteronomy whereby a Brother might bee challenged to raise vp the house of his deceased brother haue also constituted a prohibition within certaine degrées of affinity and therefore a man may not marry with the widdow of his Grandfather or of his Father or with the widdow of his owne Sonne or of his Sonnes Sonne or with the widdow of his Brother or of his Brothers Son or of his Brothers Sonnes Sonne c. Nor with the Grand-mother Mother Daughter Neece great Aunt Aunt or Sister of his deceased wife SECT XXXII Of Wooing I Am affraid my feminine acquaintance will say I writ as I liue I talke much of Marriage but I came not forward stay a while yet I pray you I know many an honest woman more repenting her hastie Marriage ere she was wâ—oed then all the other sinnes that euer she committed It were good reason we speake a little of wooing but to handle that matter per genus species would take vp as much roome as the Indian figge-tree euery thrid whereof when it falleth to the ground groweth to a body I will slip by it onely obseruing that the giuing of gloues rings bracelets chains or any thing that is ex sponsalioruÌ„ largitate as a man would say of loues liberality or as a pledge of future Marriage betwixt them that are promised haue a condition silent for the most part annexed vnto them that if Matrimony doe not insue the things may be demanded backe and recouered yet there is a distinction of like for I haue authoritie in it Si sponsus dedit aliquid aliquo casu impediuntur nuptiae donatio penitus rescinditur nisi osculum intervenerit marry if he had a kisse for his money then the one halfe of that which was giuen is the womans owne good And she hath yet more fauor in the case for whatsoeuer shee gaue were there kissing or no kissing betwixt them she may aske all and haue all againe Quaere of this in the Consistorie SECT XXXII The Condiments of Loue. THere are with vs as wel as with the Ciuilians many kinds of Donations propter nuptias and some ex sponsaliorum largitate Good meats are the better for good sauce venison craueth wine and Wedlocke hath certaine Condiments which come best in season in the wooing time and serue as Breton saith pour doner fees come melier talent d'aymer Matrimonie A husband per se is a desirable thing but Donements or Feoffements c. better the stomacke though of it selfe it be good and eager And because the first Marriage made in Paradice if you marke it well had a Iointure I cannot but allow the circumspection which is had SECT XXXIII Of Franke Marriage IT was as I suppose more frequent in the old time that men gaue Lands with their Daughters in Marriage then it was at this day But now as then if a man liberally and freely without money or other considerations saue onely loue and naturall affection giue Lands of Tenements to another man with a woman which is Daughter Sister or Cousin to the Donor in Franke Marriage whether it bee tempore Matrimonij vel ante vel post this word Franke Marriage maketh an estate of Inheritance viz. to the Donees and the heyres of their two bodies and they shall hold quite of all manner of seruices except the pure fealtie till the fourth degree bee past But the Issue in the fift degree and his Descendant shall hold of the Donor and his Heyres as they hold ouer SECT XXXIV The Gift must bee Franke. PEr Rich. 16. assi p. 66. if a man giue land in Franke Marriage rendring a rent the reseruation is voyde till the fourth degree be past per Martine Iustice 4. H 6. 22. such a reseruation is méerely voyde for it is contrary to the nature of Franke Marriage By the old tenures such a reseruation is good and the Donée shall hold in Common estate taile by Brooke in his Abridgement it cannot be any estate taile for want of the parol heyres And where such a gift is made to a woman not cousin to the Donor there passeth but estate for life for it is by a maxime or ground that Franke Marriage maketh inheritance and this case is out of the principall By Bracton fo 28. 29. Si terra detur in maritagium viro cum vxore eorum haeredibus pro homagio seruitio viri licet detur in liberum maritagium qua sunt sibi ad inuicem aduersantia c. tunc prefe 〈…〉 um erit ac si donatio fieret taiâ— viro quam vxori he deliuereth the like learning before fo 22. and this rule withall â—x tacita conditione pacta incontinenti opposita insunt contractibus legem dant eis illos infirmant SECT XXXII The gift must be to a Woman c. IT was deliuered for a Law in tempore H. 8. that Lands cannot be giuen to a man in Frank Marriage though he be Cousin to the Donor SECT XXXVI It may be tempore Matrimonij ante vel post WHat if after the gift made the man refuse to marry the Cousin of the Donor marry else-where If two Donées in taile after the Common forme be diuorced vpon a pre-contract made by
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
the woman they shal remaine ioyn-tenants of the Franke Tenement and the Inheritance is gone Tailâ— 9. But per Dyer fo 147. and 12. assi p. 22. and 19. assi p. 2. If Tenants in Franke Marriage be diuorced the Woman shall haue all the Land for the Land was giuen for the womans sake and for her aduancement and by Iohn Bracton her husband hath no more in it but Custodiam as he is the wiues tutor and Guardian By the same reason therefore that the wife shall haue the land if she be diuorced by the same I should thinke she should haue it if her Sponsus refuse to marry her But where I giue Land to one to marry my Daughter or if hee marry my Daughter there if hee marry another woman I may enter SECT XXXVI The word Franke Marriage maketh Inheritance IF a man giue lands with his Sister to I. S. in Franke Marriage habendum â—is haeredibus suis in perpetuum By Kniueâ— Mowbray and Finchden 45. Ed. 3. fo 19. this maketh neither Frank Marriage nor estate taile with an expectance of fée as in Case where Lands are giuen expresly in taile habendum eis haeredibus but the fee-simple passeth presently by the gift for Frank Marriage must be holden of the Donor which here hath nothing left in him but all is holden of the Lord Parainount and the words doe not make any other estate taile yet 13. Ed. 1. lands were giuen to one with the Cousin of the Donor in Franke Marriage habendum eis haeredibus and it was taken for good Frank Marriage This saith Brooke was in the yeare that estates taile were made in But for all that if yee look the case in Fitzherbert Formedone 63. whither Brooke sendeth you you shall perceiue that at the time of the gift it was Franke Marriage in fée-simple for by those dayes the Donee had potestatem alienandi post prolem suscitatâ—m But in a gift made after the Statute of quia emptoreâ— on such a fashion I take it the Law will be as before in the case 45. Ed. 3. According as it was also holden in the yeares of H. 8. that if a gift bee made in Franke Marriage the remainder to I. S. in fée this is no good Franke Marriage for warrantie and acquitall that are incident c. bee only in regard of the reuersion to the Donor and they cannot be had when the fée-simple is presently conueyed to a stranger SECT XXXVIII The Accompt of the Degrees LIttl accounts the Degrees from the Donor to the Donees the first Degrée from the Donées to their Issue the second from the Donées Issue to his Issue the third c. and the Issue in the fift Degrée shall doe seruice And this saith he because the Issue of the Donor and the Issue of the Donée after the fourth Degrée past may inter-marrie by holy Churches Law Bracton accompts thus donatarius facit primum gradum haeres suus facit secundum haeres haeredis facit tertium haeres secundi haeredis facit quartum qui tenebitur ad seruitium yea hee maketh it an expresse rule that onely the Donée and two heyres succéeding lineally shall enioy the immunitie of being acquitted And hee seemeth to vnderstand no other reason of the acquitall so long but onely an abstenancie from homage lest the taking of it should hinder a reuerting if it betided the Donée or the Issue to die without Issue Fitzherbert titulo droit 55. and 60. citeth 6 H. 3. and 15. H. 3. in warrant of Bractons Computation which I thinke he fetched not any further then out of the Author himselfe in whom fo 21. I find it And fo 22. hee answereth a doubt of his owne asking that is Whether all other seruice shall follow and continue if homage be done ante terâ—ium haeredem wherein he concludeth that the seruice euer followeth homage quamuis ad damnum soluentium And I conclude whether it be the third heyre or the fourth that shall doe seruice he may still vouch haue a Writ of me ne as if the fourth Degrée were not past and if he bring a Formedone the Writt shall be Dedit in liberum Maritagium SECT XXXIX A Woman giues Lands to one to marry her AS Franke Marriage maketh Inheritance without the words Heyres and is alwayes made to a woman and for her sake so there is another Donatio propâ—er nuptias that is conditionall without words of Condition made euer by a woman to a man That is where a woman giues Land to a man in fee-simple or for tearme of his life to the intent that hee marry her who if hee afterwards when hee is thereto within conuenient time required refuse c. there is now an ordinary Writt for remedy granted in this case to reduce the Land which Writt may be sued in the per cui or post after one or more alienations either by the woman sole or by her and her husband married against such a one as should haue married her after the refusall or after her death by her Heyre whether it bee Sonne or Daughter or Daughters with the child of another and there needs no scripture or writing to proue that the feoffement was for intent of Marriage nay if a woman infeoffe a stranger to the intent to infeoffe her and one which she intendeth to marrie if now the espousals take not effect she may haue Writt causa Matrimonij prelocuti against the stranger though the déed of feoffement were simple and sans Condition an 34. Ed. 3. li. assi and 40. Ed. 3. li. assi a woman enfeoffed one which had a wife and entred for non-performance of the Condition heritance of woman and in this part because it resembleth the Donations that are propter nuptias the Doctrine of it being something like that of Dower SECT XLI Marriage THis Courtesie is in the Inheritance of a Wife therefore a consequent of lawfull Marriage and exceptions of Concubinage or such like which are impediments of Dower must needs be good exceptions here SECT XLII Seisin THere must be in the wife a seisin and possession for if she were but heyre in appearance die before her Ancestor this auaileth her husband nothing Similie If the Father being seised of Lands dye and soone after his Daughter and Heyre dyeth before actuall seisin had by entrie either by the husband wife or other person for them so that no possession and a naked possession in law here is all one yea the law is taken that if a man dwell in Essex with his wife and lands descend to her in Yorkeshire if she die the next day after before entrie the husband shall not bee Tenant by the Courtesie for euen in this case is found a default in him that he did not constitute one to make entrie for him maintenant after the Auncestors death yet if rent descend to a woman Couert c. which dieth before day of payment or after the day and no
of the Obligée And if I bee bound to C. that A. shall marry B. before Easter If I marry B. and our Espousals continue till Easter my bond is forfeited Similiter If C. marry B. or if A. and B. cannot marrie because one of them dieth or wareth mad before the day I finde none other cause in our Yéere-bookes alleaged why things may not passe by gift betwéene Baron and feme saue only vnitie of person But vndoubtedly the restraint springeth from a politique consideration rather to bréed cherish and maintaine the vnity then in iudging of an impossibility because of the vnitie But the Ciuill Law vir non potest dare vxori ne foeminae amorem coniugalcm in quaestu habeant prohibenter inter coniuges donationes quia silicerct coniugibus inuicem donare matrimonia fierint venalia saepe distraherentur c. And because it would amount to arguing inter coniuges there is a restraint by that law Ne priuignus dare queat nouercae vel nouerca priuigno What if the Matrimonie be inualidum legibus non consistens yet non valet inter coniuges putatiuos facta donatio ne melioris sint conditionis quam illi qui recte faciont But a gift to a plaine Concubine is good enough vnlesse the giuer be a Soldier By old Iohn Bracton lib. 2. ca 5. Non valent donationes inter virum vxorem non enim poterit vir dare vxori nec e conuerso constante Matrimonio quia huiusmodi donationes prohibitae sunt inter tales personas nec infraudem facere possint constitutioni veluti si Maritus donet extraneae personae ea mente vt redonet in vita viri vel post mortem hee maketh his reason in the 14. Chapter Si tales donationes fieri possint ob amorem inter virum foeminam posset alter eorum egestare inopia premi But at this day though lands cannot passe betwixt Baron and Feme right out by plaine liuery or bargaine yet in the obliquitie of fines recoueries and vses there is an Expedite transporting of Inheritance betwixt them to the vndoing perhaps of the partie whose Lands are transferred and auferred with not so much as coniugall loue alwayes in recompence SECT IIII. In what sort things may passe betwixt Baron and Feme LAnds cannot passe from the Baron by feoffement to put the state from him immediately to the wife though he were infeoffed to that intent and vpon such a condition But one man may infeoffe another vpon condition to infeoffe the wife of the Feoffor whatsoeuer Bracton say and the condition good Also a feoffement fine or recouery may be made knowledged or suffered to the vse of her and her heyres which is wife to the Feoffor Conusor or sufferer c. And as I may make another man the instrument to conuey lands to my wife so may I be the meanes to conuey Lands to my wife from another man for by Letters of Atturney-ship I may deliuer seisen of Lands to my Wife for another and the feoffement shall be good by Parkins 41. And a man may deuise in his last Will and Testament either by the custome or by the Statute 32. H. 8. Lands to his Wife in fée fée-taile for life or for yeares because this taketh none effect till the Couerture be dissolued It is said in Scolasticus case If I deuise that he shall haue greene acre after the death of my wife my wife shall haue estate for life by the intent c. And although a wife by the generall rule hath no will but her Husbands and all Testaments of a feme-couert to deuise any Mannors Lands Tenements and Hereditaments are ineffectuall by expresse declaration of 34. Henrici 8. capite 5. soeuer be the courtesie among Dames of honor a womans name of dignitie changeth with the degree of her husband and of such women as haue not their honor by birth but acquire that by Marriage the rule of Law taketh order Si mulier nobilis nupserit ignoblem desinet esse nobilis when she taketh a second husband But what though the scrupulositie of the Common pleas were obserued throughout the Realme that Esquires Ladies should be no Ladies in Court and Country wherevnto I will neuer giue voyce what inequality were in this depressing shall not likewise a Knights widdow marrying with a Baron or Earle as be much exalted verament yet you see the dignitie hangeth meerely on the male side carrying the scepter of Wedlocke SECT VI. Touching seruitude NOw touching the state of fréedome or bondage Littleton saith that if a free-man marry a bond-woman the Lord cannot seise her but there is remedie by action for taking her sans gree or licence Fitzherbert in his liberâ—are probanda agreeth 78. G. that she should be fréed perpetually But the Law seemeth to be otherwise And so you may find the opinion of Doct. Stud. fo 139 b. And that indeed it is no more but a Temporarie priuiledge and exemption from seisure of her Lord during time of couerture for if the Seigniour of a Mannor marrie his Niefe regardant the best authority that I can finde is that this Niefe is no more but shrined in the honour of her Lord if he die she shall haue no Dower but remaine still in her niefitie regardant to the Mannor And to say truth I perceiue not how a womans being married can in any sort be an infranchisement no not for a time it is no more but a sconsing or hiding of the seruitude Bracton saith elegantly manumission is a detection or laying open of the freedome which is a natura A womans liberty is free licence to doe what she list vnlesse shee be letted by force or by Law it is not restored to Niefe when she marrieth Marriage rather pulleth it from her which before was free When a Seignieur therefore marrieth with his bond-woman she must not turne her bumme to him and say heretofore my Lord I lay in your bed and now I lye in mine owne as the French Concubine said being married newly to her French Lord but let her bee burome and mindfull of her subiection for if this louing Seignior of hers die she may right well be an apparant Niefe againe to her owne sonne for ought that I know why not as well as causes may happen that the father to sonne or one sonne to another may be a villeine the case did happen 3. Ed. 3. that the villaine married his Lords mother and so the father in Law and the brother de demisank were villeines If a free woman marry a villeine her naturall freedome is not otherwise infringed then by subiection to her husband If the villeine purchase Lands and die before seisure made by the Lord the wife shall haue Dower But if a frée-woman seised in fee or fee-tails take a husband which is a villeine and die the Lord may enter vpon the husbands possession per le Courtesie or vpon the Issue being Tenants
vpon the first maineprise or a new scire facias by new maineprise neither of them might be allowed without his wife yet it was agréed that if two men were outlawed one might sue pardon and scire facies without the other for in that case the one may plead alone vpon the first originall without his fellow against whom the processe is determined but the Baron cannot plead here without his wife sée the booke 11. H. 4. fo 89. Baron and Feme being outlawed the wife appeared and brought a Charter of pardon shee was suffered to goe at large but the pardon might not bee allowed because the baron appeared not and the wife could not plead without him 14. â— 6. fo 14. Iune said that one kinde of diuorce betwixt baron and feme is when an action of trespasse is brought against them and the baron only appearing processe goes out against the wife till she be waiue c. Shee can neuer purchase her pardon vnlesse her husband appeare so that if he will he is diuorced The like subtilty hath M. Littleton 13. Ed. 4. fo 4. where he affirmes that if a woman be outlawed by erronious processe if the husband will not bring a writ of error hee may so be rid of a shrew for that counteruailes a diuorce 11. H. 4. Sheweth that a woman may be suffered to goe at large though her pardon bée not allowed till her husband appeare with her c. And sée Dyer 10. Eliz. 271. In debt against baron and feme processe was continued till the baron was outlawed and the wife waiue afterward the wife came in ward by processe brought the queenes pardon for her waiuery Though the pardon could not bée allowed because the wife without the husband could not sue scire facias against the platntiffe to make him declare vpon the first originall for the pardon had a condition in law ita quod ipsa staret recta in curia which shée could not doe alone yet by the opinion of the Court shée was to bee discharged of the imprisonment I thinke the shrew went home But that a woman outlawed by her selfe alone for an offence touching her in an action brought against her husband and her and the husband appeared before outlagary was discharged of her imprisonment vpon sight of her pardon I find not here nor no where else and therefore it may be M. Iunes way will serue sometime to bee rid of a shrew and that by a like manner a woman may be voided of a slouin or vncumbred of a Churle An action of trespasse is brought against baron and feme and the baron outlawed the wife appearing at the exigent goeth sanâ—iour if a capias vtlagatum lay hold of the husband I perceiue not well how he can get loose without his dames fauour SECT L. Of Diuorce BVt it is time to make an end of marriage since wee are come to matter of diuorcement of which I reckon this of outlary for none 47. Ed. 3. in the very end of the yéere setteth downe flue wayes Causa professionis Causa pcontractus Causa consanguinitatis causa affinitatis and Causa frigiditatis with an obseruation that when diuorce is Causa professionâ—â— the wife shall be indowed and the heire inherit contra in al the residue â—mmaturiâ—iâ— also or miâ—oritie of age at the time of espoâ—sals may be one cause of diuorce As â—9 Ed. 3. fo 32. Iohn Alice his wife brought an assise the Tenant said that Alice had sued diuorce in the Archbishoprick of Barwicke because she was vnder age of consent tempore sponsaliuÌ„ neuer consenting afterward and diuorce was had iudgement del briefe And Broke titulo garde 124. remembreth that 5. Ph. Mar. the Doctors of Law declared for diuorces vpon this case That if an heire or other body be married infra annos nubiles and doe disassent at the age of discretion or after before assent to marriage it is sufficient and the party may be wedded to some other body without either diuorce or testimony of the disagréement before the ordinary who though hee may punish ê‘ arbitrium Iudicis here yet the second espousals are good by Law of both Realme and Church But when diuorce is had for kindred praecontract frigiditie or such like case the Law is cleane contrary for tryall of diuorce when it is pleaded in a temporall Court must bee by certificate of the Bishop and not ê‘ pais 5. Hen. 4. fol. 2 and sentence of diuorce belongeth to the Bishop in his spirituall Court Of which there is authority 2. Eliz. 179. in Dyer This yéere he saith sentence of diuorce was giuen Causa frigiditatis naturalis in the Archbishops Court of Audience and the woman was actrix querulans de impotentia proâ—râ—andiâ—â— viâ—o who was adiudged impotent by the Physitians The same yéere or next yéere another case and iudgement hapned like and the woman which complained married to a second husband of better stuffe by whom she had children and gaue him all her land by fine c. her first husband also was married to another woman and had children by his second wife vt asserebatur in which case the Doctors held that the parties diuorced were compellable to liue againe together vt vir vxor quia sancta Ecclesia decepta fuit in Iudicio priori Therefore much adoe was made to stay the ingrossing of the fine yet the Iustices made it be ingrossed contra mandaâ— domÌ„ Custodis c. But sée Sir Edw. Cokes 5. Report fo 98. in Buryes case that the Doctors were deceiued for the parties diuorced causa frigiditatis cannot liue together againe and the issue by the second wife is legitimate for a man may bee habilis inhabilis diuersis temporibus Againe 13. and 14. of Eliz. Dyer fol. 305. teacheth that right and lawfulnesse of marriage is euer to be iudged not by the temporall but by the spirituall Iudge And therefore in an issue of ne vnques accouple in loyall matrimonie if the Bishop certifie not the lawfulnesse of wedlocke but the circumstances hée shall be amerced and a melius certiorando awarded Séeing therefore right of marriage is to be discussed by the spirituall Iudge they which are married ought in no case to seuer themselues and remarry without the spirituall Iudge if they doe the second marriage is no marriage the children had in it are illegitimate and the woman not dowable except in the case first specified And generally where espousals are not méerely void but defiesable if they bee not auoided by diuorcement the issue which is had without defeiting that shall inherit as if a man marry his cosin or his sister saith the booke and haue issue by her and die before diuorce had now nothing can bastardize the issue for though the Commissary was wont in his visitation to make a kinde of diuorce in such cases after death of one of the parties it was neuer any more than an Inquisition of office Ad inquirendum
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