OF DOWER.[157]
[Footnote 157: On the subject of the present Book in general, see
Bracton fol. 92 et seq. and Fleta L. 5. c. 23. et seq.]
CHAP. I.
The term Dower is used in two senses. Dower,[158] in the sense in which
it is commonly used, means that which any free man at the time of
his being affianced,[159] gives to his Bride at the Church Door.[160]
For every Man is bound as well by the Ecclesiastical Law, as by the
secular, to endow his Bride, at the time of his being affianced to
her. When a man endows his Bride, he either names the Dower, or not.
In the latter case, the third part of all the Husband’s freehold Land
is understood to be the Wife’s Dower; and the third part of all such
freehold Lands as her Husband held, at the time of affiancing,[161] and
of which he was seised in his Demesne, is termed a Woman’s reasonable
Dower. If, however, the Man name the Dower, and mention more than a
third part, such designation shall not avail, as far as it applies
to the quantity. It shall be reduced by admeasurement to the third
part;[162] because a Man may endow a Woman of less, but cannot of more,
than a third part of his Land.[163]
[Footnote 158: _Dos_, dower. “_Dos_ is derived,” says Sir Edward Coke,
“_ex donatione, et est quasi donarium_.” (Co. Litt. 30. b.) Cowell and
Spelman, however, both deduce it from the French _douaire_. (Cowell and
Spelman’s Gloss. ad voc.) The real objects of Dower are sustenance for
the wife, and nurture and education for the children. (Fleta L. 5. Cap.
23.) The _Romans_ were not in the habit of endowing their wives. When,
therefore, _Tacitus_ met with this peculiarity among the _Germans_, he
was struck with it. _Dotem non Uxor marito sed uxori maritus affert._
(Tacit. de mor. German. 18.) Though Dower was unknown to the Romans, it
seems to have been in use amongst the ancient _Hebrews_, (Gen. 34. 12.
Exodus 22. 16. et al.) Nor was it unknown to the _Grecians_, if we may
judge from that part of the Odyssey where Vulcan reclaims the Dower he
had given to his frail wife. It seems to have been known to the ancient
_Gauls_, (Cæsar, de bello Gallico L. 6. c. 18.) And to the _Cantabri_,
(Strabo L. 3.) _Craig_, however, doubts whether there was any such
thing as dower amongst the ancient Northern Nations. (Jus Feud. L.
2. Dieg. 14.) The _Goths_ did not allow Dower to exceed a _tenth_.
(Wisegoth. L. 3. t. 1. l. 4.)
The _Assises of Jerusalem_ gave a _half_, (c. 187.)—the same portion
as the Laws of the Ancient Duchy of _Burgundy_—(Chass. consuet. ducat.
Burg. rub. 4. s. 6. col. 580.) The _Saxons_ (LL. tit. 8.) _præter dotem
quam in nuptiis adepta est_, allowed the _half_ of what the Husband and
Wife subsequently acquired. A Law of Edmund gave the _half_. (LL. Edm.)
The _Longobardi_ allowed Dower to extend to the _fourth_ part. (L. 2.
tit. 4.) The _English_, the _Scotch_, and the _Normans_, following in
this respect the _Sicilians_ and _Neapolitans_, have allowed Dower
to extend to a _third_. (Vide LL. Hen. 1. 70. Ed. Wilkins.—Le Grand
Custum. de Norm. c. 102.—the Regiam Majm. L. 2. c. 16.)]
[Footnote 159: _Tempore desponsationis._ _Affiance_ and _Marriage_ seem
to be perfectly distinct things in the Civil and Canon Laws. (Vide
Lyndw. Provinc. 271.) but our law books, it is said, use the terms
promiscuously, as being synonymous. (See Co. Litt. 34. a. and Mr.
Hargrave’s note.)]
[Footnote 160: _Or at the Door of the Monastery_, say the Mirror and
Lord Coke. (Mirror. c. 1. s. 3. Co. Litt. 34. a.) The reason for
requiring the endowment to be made at the door of these places was to
give publicity to the transaction. (Bracton 92. a. Fleta L. 5. c. 23.)]
[Footnote 161: _Tempore matrimonii_ is the expression of the Grand
Norman Custumary, (c. 102.) and of the Regiam Majestatem (L. 2. c.
16.) and _die quo eam desponsavit_ is the language of Bracton (92. a.)
and Fleta (L. 5. c. 24.) notwithstanding that the 7th chapter of Magna
Carta enlarged the widow’s claim to a third part of all such lands as
the Husband is seised of _in vita sua_ or, as it has been translated,
_during the coverture_; and thus it has stood ever since, though not
without having been materially encroached upon, by the comparatively
modern doctrine of _Trusts_.]
[Footnote 162: For this purpose our Author gives us the form of a Writ,
Chapter 18th of the present Book.]
[Footnote 163: “Lest, by such liberal endowments, the Lord should be
defrauded of his wardships and other feudal profits.” (2 Bl. Com. 133.
See also Grand Cust. de Norm. c. 18.) It is a remarkable peculiarity of
Legislation, that the same Law is frequently the result of principles
the most different—thus, the modern French code tells us, that it will
not allow the Dowry to be augmented during the marriage. (Code Napoleon
s. 1543.)]
CHAP. II.
Should it happen, as it sometimes does, that a man endows a Woman,
having but a small freehold at the time of his being affianced, he may
afterwards enlarge her Dower to the third part or less of the Lands, he
may have[164] purchased.
[Footnote 164: _Questus_, more properly, says Spelman, _quæstus_
from _quæro_, purchased Lands, contradistinguished to Lands acquired
by inheritance. (Vide Spelm. Gloss. ad voc. and Co. Litt. 18. a.)
Purchased Lands were designated under the feudal Law by the _feudum
novum_. (Craig Jus feud. L. 1. Dieg. 10. s. 13.)]
But if upon the Assignment of Dower, no mention was made concerning
purchases, even admitting that at the time of affiance he possessed
but a small Estate, and that he afterwards much increased it, the
Wife cannot claim as Dower more than a third part of such Land as her
Husband held, at the time of being affianced, and when he endowed her.
The same Rule prevails if a Man, not being possessed of any Land,
should endow his Wife with his Chattels,[165] and other things, or
even with Money. Should he afterwards make considerable purchases in
Land and Tenements, the Wife cannot claim any part of such property so
acquired by purchase; it being, with respect to the quantity or quality
of the Dower assigned to any Woman, a general principle, that if she is
satisfied to the extent of her endowment at the door of the Church, she
can never afterwards claim as Dower anything beyond it.[166]
[Footnote 165: It is curious to observe the fluctuations of Law.
Though Glanville in the text expressly lays it down, that a Woman may
be endowed of chattels, or money, which, indeed, could have been the
only mode of endowing in the still more distant ages of Antiquity, yet
this was denied to be law in the Reign of Henry the fourth, (7. H. 4.
13. b.) The Doctrine of the Courts of Equity in the present day, in
admitting equitable bars, seems, in point of substance, to revive the
law as laid down by Glanville. The doctrine of the text is confirmed
by the Regiam Majestatem, and Fleta: but the latter informs us, that
Dowers, of the kind now under discussion, were only so far to be
recovered, as the chattels of the deceased extended. (L. 5. c. 23.)
Hence probably they fell into disuse.]
[Footnote 166: “_Si enim mulier, quando ducta fuerit in uxorem,
concessit et consensit se dotari del mobili vel de terra specificata,
illud ei debet post decessum mariti sui sufficere, quod in contractu
matrimonii concessit se pro dote recipere et consensit._” (Le Grand
Custum. de Normand. c. 102.) “Because she was first content therewith,”
is the reason the Reg. Maj. gives why she should afterwards be confined
strictly to the original designation. (L. 2. c. 16.)]
CHAP. III.
It should be understood, that a Woman[167] cannot, during the life of
her Husband, make any disposition of her Dower.[168] For since the Wife
herself is in a legal sense under the absolute power of her Husband,
it is not singular, if the Dower, as well as the Woman herself and all
other things belonging to her, should be considered to be fully at the
disposal of the Husband. But any one, having a Wife, may either give or
sell her Dower, or, by any other mode he pleases, may alienate it in
his lifetime; so that the Wife shall be bound to conform to his will
in this as in all other respects which are not contrary to the Law of
God. And so far is the Woman bound to obey her Husband, that if her
Husband chuses to sell her Dower, and she refuses her consent, and the
Dower be afterwards sold and bought under these circumstances, the Wife
cannot[169] after the death of her Husband claim her Dower as against
the Purchaser, if she confess in Court or is convicted upon the fact
that, although she opposed her Husband, the Dower was sold by him.
[Footnote 167: _Mulier_ is the expression which our Author generally
uses, to designate the Wife: but, as Lord Coke informs us, this Term
was anciently taken for a wife. (2. Inst. 434.)]
[Footnote 168: For which Rule Bracton gives two reasons: _1st._ Because
the woman has no freehold in her Dower, previously to its being
assigned. _2ly._ Because she cannot gainsay her Husband. (Bracton 95.
b.)]
[Footnote 169: I have followed all the MSS. and the Edition of
Glanville published in 1604, in admitting _not_ into the text. I
submit, that this Reading is sanctioned not merely by the previous part
of this present chapter, but also by the 13th chapter of the present
Book. Yet the Regiam Majestatem makes the validity of such a sale to
depend upon the wife’s consent—but, if she made no opposition to it, it
seems to have been tantamount to a positive consent. (L. 2. c. 15. 16.)
From considering the 13th Chapter of the present Book, one thing seems
clear—that in case the Husband disposed of his Wife’s dower, the Heir
was bound to render an equivalent to the Purchaser, if the Land was
recovered from him, or to the Wife, if it was not so. As to the Heir,
therefore, it was immaterial; and so it perhaps might be considered
with respect to the Wife and the Purchaser, in case the Heir, as Heir,
were solvent; but if otherwise, it was highly material to ascertain,
whose right, that of the Wife or that of the Purchaser, was paramount.
Bracton is more explicit than our Author; and from him we collect, that
a distinction should be made, whether the Dower was originally _named_,
or not. In the _former_ case, the woman could pursue the identical
Dower, and wrest it from the hands even of a Purchaser. In the _latter_
she was obliged to resort to the Heir for an Equivalent. In the first
case, from the moment the dower was named, the woman acquired a certain
_jus et dominium_ as Bracton expresses it, in the property, which
accompanied it into whatever hands it afterwards went, and gave her
the right of following and reclaiming it. But, if the endowment were
general, and no particular land specified, the Wife did not acquire any
immediate right, on account of the uncertainty; it being questionable,
what identical allotment would fall to her share, until the assignment
took place. (Bracton 300. b.)]
CHAP. IV.
Upon the death of the Husband of a Woman, her Dower, if it has been
named, will either be vacant or not.
In the former case, the woman may, with the consent of the Heir, enter
upon her Dower,[170] and retain the possession of it. If, however,
the Dower be not vacant, either the whole will be so circumstanced, or
some part will be vacant, and some not. If a certain part be vacant,
and a certain part not, she may pursue the course we have described,
and enter into the part which is vacant; and for the residue, she shall
have a Writ of Right, directed to her Warrantor[171] in order to compel
him to do complete Justice concerning the Land, which she claims as
appertaining to her reasonable Dower, which Writ shall be as follows:——
[Footnote 170: It seems, that the Widow took possession of the property
in the same state in which it existed at the death of her Husband,
whether in cultivation, or otherwise, with the fruits, returns, and all
other things appertaining to it. (Bracton 98. a. Fleta L. 5. c. 24. s.
2.)]
[Footnote 171: Namely, the Heir of her Husband. (Vide Reg. Maj. L. 2.
c. 16.)]
CHAP. V.
“The King to _M._ Health.[172] I command you that, without delay, you
hold full right to _A._ who was the Wife of _E._ of one Hyde of Land,
in such a Vill, which she claims to belong to her reasonable Dower,
which she holds of you in the same Vill by the free service of ten
shillings, by the year, for every service, of which _N._ has deforced
her: and unless you do so, the Sheriff shall,[173] least she should
anymore complain, for want of Justice. Witness &c.”
[Footnote 172: Vide F.N.B. 18.]
[Footnote 173: Among the Constitutions of the Ancient kings, the Mirror
informs us, “it was ordained, that after a Plaint of wrong be sued,
that no other have Jurisdiction in the same place, before the first
Plaint be determined: and from thence came this clause in a Writ of
Right, _Et nisi feceris vicecomes faciat_.” (Mirror c. 1. s. 3.)]
CHAP. VI.
The Plea shall be discussed in the Court of the Warrantor by virtue
of this Writ, until it be proved that such Court has failed in doing
Justice, concerning the nature of which, we shall speak in another
place.[174] Upon proof of this, the Suit shall be removed into the
County Court, through the medium of which, the Suit may, at the
pleasure of the King or his Chief Justiciary, be lawfully transferred
to the King’s Court by the following Writ:[175]——
[Footnote 174: V. Infra L. 12. c. 7.]
[Footnote 175: “The Feme, who is Demandant, may remove the same by a
_Tolt_ into the County; and also may remove the same out of the County
into the Common Pleas by a _Pone_, _&c._ without shewing any cause in
the Writ, as the Demandant shall do in a Writ of Right Patent.” (F.N.B.
15.)]
CHAP. VII.
“The King to the Sheriff, Health. Put before me or my Justices, on such
a day, the suit which is in your County Court, between _A._ and _N._
concerning one Hyde of Land in such a Vill, which the said _A._ claims
against the aforesaid _N._ as her reasonable Dower. And Summon, by good
Summoners, the aforesaid _N._ who holds that Land, that he be then
there with his Plea. And have there,” &c.
CHAP. VIII.
Pleas of this description, as, indeed, some others, may be transferred
from the County Court to the supreme Court of the King for a variety
of Causes: as, on account of any doubt which may arise in the County
Court concerning the plea itself, and which that court is unable to
decide; (and when any suit is thus transferred to the Court, then both
parties, as well the Tenant as the Demandant, shall be summoned.) But,
when it has been removed upon the Petition of one of the parties, it
will then suffice, if that party be summoned who did not require the
removal: but, if the suit should be transferred to Court by the consent
and prayer of both parties, being present in Court together, then,
neither party ought to be summoned, because the day appointed in Court
is known to both of them. Upon the day appointed in Court, either both
parties will be absent, or only one will be so, or both will appear. We
have already sufficiently treated concerning the absence of both, or of
one only of the parties. If both be present in Court, the Woman shall
set forth her claim against her Adversary in the following words. “I
demand such Land, as appertaining to such Land, which was named to me
in Dower, and of which my Husband endowed me at the door of the Church,
the day he espoused me, as that of which he was invested and seised at
the time when he endowed me.”[176]
[Footnote 176: It is thus as literally set down in the Translation of
the Regiam Majestatem.—“I claim sic Land, as are part and pertinents
of that Land named by my umquhill Husband for my Dourie, quherewith he
indowed me at the kirk dore, the samine day when he married me, wherein
he was vest and saised at the time he indowed me therewith.” (L. 2. c.
16.)]
Various are the Answers which the Adverse party usually gives to a
claim of this kind; in substance, however, he will either deny that she
was so endowed, or concede it.
But, whatever he may allege, the Suit ought not to proceed, without the
Heir of the Woman’s Husband. He shall, therefore, be summoned to appear
in Court to hear the Suit, by the following Writ:——
CHAP. IX.
“The King to the Sheriff, Health. Summon, by good Summoners, _N._ the
Son and Heir of _E._ that he be before me, or my Justices, on such a
day, to warrant to _A._ who was the Wife of the said _E._ his Father,
one Hyde of Land in such a Vill, which she claims to belong to her
reasonable Dower of the Gift of the said _E._ her Husband, against
_N._ and of which there is a Suit between them in my Court, if he will
warrant that Land; or to shew to her why he ought not to do so. And
have there &c. Witness &c.”
CHAP. X.
Should the Heir, after having been summoned, neither appear, nor essoin
himself, on the first, second, nor third day; or if, after having cast
the usual Essoins, he should on the fourth day, neither appear nor
send his Attorney, it may be a question, by what means he ought or can
be distrained, consistently with the Law and Custom of the Realm. In
the opinion of some, his appearance in Court, shall be compelled, by
distraining his Fee.[177]
[Footnote 177: He may, according to the Regiam Majestatem, be
distrained, or attached by Pledges. (L. 2. c. 16.)]
And that, therefore, by the direction of the Court so much of his
Fee[178] shall be taken into the King’s hands as may be necessary to
distrain him to appear in Court to shew, whether he ought to warrant
the Land in question or not. Whilst others[179] think, that his
appearance in Court for such purpose may be effected, by attaching him
by Pledges.
[Footnote 178: _Feodum._ This word, which has frequently occurred
in our progress through Glanville, has given the name to a system.
The reader has no doubt perused Mr. Justice Blackstone’s account of
it, (2 Comm. 44.) and the luminous Annotation which Mr. Butler has
subjoined to Co. Litt. (Note to 199. a.) It may not be amiss briefly
to mention the leading divisions of Feuds, as the Reader in the course
of these pages will find some of these divisions mentioned, and others
alluded to. 1. _In proprium et Improprium._ 2. _In francum et non
francum._ 3. _In masculinum et femininum._ 4. _In reale et personale._
5. _In laicum et ecclesiasticum._ 6. _In antiquum et novum._ 7. _In
nobile et ignobile._ 8. _In ligium et non ligium._ 9. _In simplex et
conditionatum._ 10. _In divisibile et Indivisibile._ (Craig de Jur.
Feud. _sparsim_.)]
[Footnote 179: Namely, says Dr. Milles’s MS. Hugh Bardolph.]
CHAP. XI.
When, at last, the Heir of the Husband of the Woman, the complainant,
appear in Court, either he will affirm the fact, and concede that the
Land in question appertains to the Dower of the Woman, and that she was
endowed of it, and that his Ancestor at the time he endowed her was
seised of it as an appurtenant to the Land which he named in chief, as
her Dower, or, he will deny it. If the Heir admit this in Court, he
shall then be bound to recover the Land against the Tenant, if he be
disposed to dispute the matter, and then deliver it to the woman; and
thus the contest will be changed into one between the Tenant and the
Heir.
If, however, the Heir be unwilling to contest the point, he shall
be bound to give to the Woman a competent equivalent; because, the
Woman herself shall not afterwards sustain any loss. But, if the Heir
himself neither admit nor concede to the Woman that which she alleges
against the Tenant, then, the suit may proceed between the Woman and
the Heir. For a Woman cannot with Effect bring an Action against any
one, without the Warrantor of her Dower.[180] If, therefore, the Heir
should absolutely deny the Right of the Woman, alleging in Court, that
she never was endowed by his Ancestor, the matter may be decided by the
Duel, provided the Woman produce in Court those who heard and saw the
Endowment, or any proper Witness who may have heard and seen the fact
of her being endowed by the Ancestor of the Heir at the Church door,
at the time of the Espousals, and be ready to prove such fact against
him.
[Footnote 180: For, as the Regiam Majestatem adds, “the king’s writ
is of no force, unless the warrantor be summoned.” (L. 2. c. 16.) The
Bodleian, Harleian, and Cottonian MSS. add, _that the woman is not
bound to answer, without her warrantor_.]
Should the Woman prevail against the Heir in the Duel, then the Heir
shall be bound to deliver the Land in question to the Woman,[181] or to
give her an adequate recompense.
[Footnote 181: The Dower being assigned, says Bracton, it shall, in
every sense of the word, be enjoyed freely; and the wife shall not be
compelled to contribute any portion of it, towards discharging the
Debts of her Husband, which entirely devolve upon the Heir. The Heir
shall warrant and defend the Dower, and perform the judicial services
that may be due in respect of it, to the County, the Hundred, or the
Lord’s Court; whilst the widow, exempt from every other care, devotes
her attention solely to the management of her domestic affairs, and to
the education of her children.—She shall, however, have her own court.
(fo. 98. a.) So effectually were the convenience, the interest, the
dignity, of the widow attended to when Bracton wrote!!]
CHAP. XII.
It should be observed, that when any one endow his Wife in these
words, “I give to thee this Land, or Vill, by name, with all its
appurtenances”—if, at that period, he held not any thing appurtenant
to it in his Demesne, nor of which he was seised at the time of his
Espousals, and he in his lifetime recover it, or by any other lawful
means acquire it, the Wife, after the death of her Husband, may, by the
Law of Dower, justly demand such appurtenant, together with the other
property of which she was endowed.
CHAP. XIII.
It must also be understood, that if the Husband of any Woman, after
having endowed her as his Wife, should sell her Dower to any one,
his Heir shall be obliged to deliver the Dower to the Woman, if he
possibly can; at the same time he shall be bound to render a reasonable
equivalent to the Purchaser, on account of the Sale, or Gift of his
Ancestor.[182] If, however, the Heir be unable so to do, he shall be
bound to make to the woman a reasonable compensation.
[Footnote 182: An Assignment of Dower carries with it an obligation of
warranty under the modern French code. (Code Napoleon, 1547. 1564.)]
CHAP. XIV.
When the Dower of a Woman happen to be so circumstanced, that she is
prevented from obtaining any part of it, then, the suit shall from
the beginning be carried on in the King’s Court, and the person in
possession of the Dower shall be summoned, by the following Writ:——
CHAP. XV.
“The King to the Sheriff, Health.[183] Command _N._ that, justly and
without delay, he cause _A._ who was the Wife of _E._, to have her
reasonable Dower in such a Vill, which she claims to have of the Gift
of the said _E._, her Husband, and of which she has no part, as she
says; and of which she complains that he has unjustly deforced her;
and, unless he does so, summon him, by good Summoners, that he be, on
such a day, before us, or our Justices, to shew wherefore he has not
done it; and have there, &c. Witness, &c.”
[Footnote 183: Vide F.N.B. 329.]
CHAP. XVI.
Whoever happens to be in possession of the Dower, whether the Heir
or another person, the Heir ought always to be present to answer the
Woman claiming her Dower. If, therefore, a stranger, and not the Heir,
deforce the Woman of her Dower, he shall be summoned by this Writ; but
the Heir shall be summoned by the former Writ.
CHAP. XVII.
The suit between the Heir and the Widow, may be infinitely varied. For
the Woman will either claim her Dower, as named, or her reasonable
Dower as not named. The Heir also may admit that her Dower was named,
but that it differs from that she demands; or he may allege, that no
Dower was specified.
If the contest between them be concerning Dower which was named, or
concerning different nominations of it, then, the Plea may proceed
in the manner we have above described. But if a reasonable Dower be
demanded, no specific nomination having been made, the Law is perfectly
clear, that the Heir is bound to assign to the Woman as her Dower, a
third part of all the freehold Tenements that his Ancestor held in his
Demesne, on the day of the Espousals, and this unreservedly, in every
thing, as in Lands, and Tenements, and Ecclesiastical Advowsons,[184]
so that if there should be but one Church in the whole Inheritance,
and such happen to fall vacant in the life of the woman, and after the
death of her Husband, the Heir shall not, without the Assent of the
woman, present a Parson to such Church. From the generality of this
Rule we must except the Capital Messuage, which cannot be given in
Dower, nor can it be divided, but shall remain entire.[185] Nor shall
a division be made of those things which other women, who have been
previously endowed, still hold in Dower.[186] Besides, if there should
be two or more Manors to be divided, the Chief Manor shall not be
divided, but, together with the capital Messuage, shall remain entire
to the Heir, so that the Widow shall be fully satisfied from the other
Manor or Manors. It should also be remarked, that the Assignment of the
Dower shall not be postponed, on account of the Infancy of the Heir.
In addition, should any Land have been given by name to a Woman, in
Dower, and should a Church have been founded in that Fee, the Woman,
after the death of her Husband, shall have the free Presentation; so
as to have it in her power, in case such Church should become vacant,
to bestow it upon any proper Clerk.[187] But she cannot confer it upon
a College,[188] because, by so doing, she would for ever destroy the
Right of the Heir.
[Footnote 184: Vide Bracton 97. a. where the doctrines of the text are
corroborated, and the additional improvements laid down.]
[Footnote 185: Yet, from the form of the writ, book 12. c. 20. as given
by our author, we may collect, that the Land assigned to the Widow, as
her Dower, was to have a messuage upon it, unless, as the Writ says,
land had been, in the first place, specifically nominated, on which
there was no messuage. This inference is corroborated by Bracton. (97.
b.) It was certainly a qualification of the severity of the Rule,
which would turn the Widow out of that House she might possibly long
have occupied with her Husband as its mistress. The Widow had further
advantages under the 7th chap. of Mag. Car. These different regulations
in favor of the Widow, tended to restore the common Law as it stood
in the Reign of Canute. _Ubi Maritus habitavit absque lite et absque
controversia, habitent uxor et infans ubique absque lite._ (LL. Canuti,
70. Ed. Wilkins.)]
[Footnote 186: “The great Third,” says Skene, “shall not be computed,
in the division of a second third.” (Reg. Maj. L. 2. c. 16.)]
[Footnote 187: “Qualified Clerk, in life and literature.” (Reg. Maj. L.
2. c. 16.)]
[Footnote 188: “Seeing,” adds Skene, “a College never dies.” (Reg. Maj.
L. 2. c. 16.)]
But if the Husband of the woman happen in his lifetime to bestow the
Church upon the Clerk, the latter shall, during the whole of his
life, retain such Church; although he were presented subsequently
to the period when the woman was endowed of that Land. If, however,
the Husband should, in the interval, bestow the Church upon any
religious House, the Church ought, after the death of the Husband, to
be delivered to his Widow, so that in the course of her life she may
have a free Presentation.[189] But, after the death of the woman, and
of the Clerk instituted Parson upon her Presentation, the Church shall
revert to the religious House, and shall for ever after so remain. It
may also be observed, that if the wife should, in the lifetime of her
Husband, be separated from him on account of incontinence, the Woman
shall not be heard upon a claim of Dower.[190] The same rule prevails,
if she be separated from him on account of Relationship[191]—she
shall be debarred from claiming her Dower. And yet her children may
inherit, and, by the Law of the Realm, shall succeed to their Father
by hereditary Right.[192] Observe also, that when the Son and Heir of
any one marries, with the consent of his Father, and, by the Assignment
of his Father, endow his Wife with a certain part of the Land of his
Father,[193] it may be questioned whether the Wife can demand any more
as dower?[194] If her Husband die previously to his Father, it may be
doubted, whether she can retain the Land in question, as her Dower,
and whether the Father of her Husband be bound to warrant such Land to
her?[195] If a woman have more Land in Dower than she ought, that is,
more than belongs to her, let the Sheriff be commanded to admeasure it,
and for this purpose the following Writ shall issue——
[Footnote 189: “If the Husband gave the Church to any Religious House,
after his decease his Heir shall deliver the church to the Wife,
so that during all the days of her life she may have the right of
Presentation thereof.” (Reg. Majest. L. 2. c. 16.)]
[Footnote 190: From a Law of Edmund, which is in every sense of the
word a most singular specimen of legislation, the translator makes
the following extract:—_Si eam_ (the wife) _ex terra illa ducere
velit in alterius Thani regionem, tunc sponsio ipsius sit quam Amici
paciscantur, ut Maritus ejus nullam illi injuriam inferat, et si illa
delictum commiserit, ut possint esse propinquiores emendationi, si illa
non habeat unde compenset._ (LL. Edm. Ed. Wilkins.) This was certainly
a more polite mode of proceeding than Canute allowed. Under his Law,
the wife, if guilty of the offence in the lifetime of her Husband,
became infamous, forfeited every thing she possessed to her Husband,
and lost both her nose and ears. (LL. Canuti—Ibid.)]
[Footnote 191: _Parentelam_, (vide Spelm. Gloss. ad voc. _parentes_.)
“Parentage and sibness of blude (within degrees defended and
forbidden,”) (Reg. Majest. L. 2. c. 16.)
Divorce, generally, is a bar to Dower under the Norman code. (Le Grand
Custum. de Norm. c. 102.)]
[Footnote 192: Upon this Rule of Law, Lord Littleton observes, “as
the Canonical prohibitions extended so far, that divorces frequently
happened, after a cohabitation of many years in a state of wedlock
supposed lawful, there was much humanity and equity in this Law,”
especially as his Lordship had just observed “such a separation
supposed a nullity in the marriage, and the children must in strictness
have been bastardised by it,” had it not thus have been tempered and
relaxed. (3 Litt. Hist. Hen. 2. p. 126.)
A similar Law forms part of the Modern French code, though clearly the
result of different principles—“Dissolution of marriage by Divorce,
allowed at Law, shall not deprive the children born of the marriage of
any of the advantages which were assured to them by the Laws, or by
the marriage contracts of their Father and Mother.” (Code Napoleon, s.
304.)]
[Footnote 193: According to the Norman Code, if the Husband, at the
time of the marriage, had no Fee, but his father or Grandfather had
been present and consented to the marriage, the wife might be endowed
out of the Land of the Father or Grandfather, provided there were
no other Heirs: if, however, such Father or Grandfather had other
Heirs, then, she was to be endowed out of the portion descending to
her Husband. But, if the Father or Grandfather did not consent to the
marriage, she was entitled to no Dower out of their Lands. (Le Grand
Cust. de Normand. c. 102.)]
[Footnote 194: This is put as a question in the printed text, although
the Cottonian and Dr. Milles’s MSS. assert it absolutely, that the
wife cannot claim any more in Dower than that of which she has been
so endowed. That the printed text is correct seems probable: for we
can scarcely suppose the doctrine in question was settled when that
contained in the next following passage was unsettled.]
[Footnote 195: The Regiam Majestatem lays it down, that the Father of
the Husband shall be compelled to warrant the same to her. (L. 2. c.
16.) Vide Co. Litt. 35. a.]
CHAP. XVIII.
“The King to the Sheriff, Health.[196] _N._ complains to us, that _A._
his Mother, has more in Dower of his Inheritance, than she ought to
have, and than belongs to her to have, to wit, her reasonable Dower.
Therefore, I command you, that justly and without delay, you cause it
to be admeasured; and that, justly and without delay, you cause the
said _N._ to have what he ought of right to have of his inheritance;
and, justly and without delay, cause the said _A._ to have what she
ought to have, and what belongs to her to have, to wit, her reasonable
Dower, least he should again complain for want of Justice. Witness, &c.”
[Footnote 196: Vide F.N.B. 331.]