Chapter VIII: Book VI: 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.]