A Translation of Glanville | Project Gutenberg

[99] Recreantisæ. “Now the ancient law was, that the victory should be proclaimed, that he that was vanquished should acknowledge his fault in the audience of the people, or pronounce the horrible word of cravent, in the name of recreantise &c. and presently judgment was to be given, and the recreant should amittere legem &c.” (2 Inst. 247) “And the vanquished is to acknowledge his offence, in the hearing of the people, or speak the horrible word of cravent, in the name of cowardice, or his left foot to be disarmed and uncovered, in sign of Cowardice.” (Mirror, 162 Ed. 1768.) “If he become recreant, that is a crying coward, or craven, he shall for his perjury lose liberam legem. Craven is derived from the Greek word κραυην, a vociferatione: others nearer home of crying and craving forgiveness. And recreantisa is devised of the French recreance, or giving back or cowardice; and sometimes it is called creantia, per antiphrasen, because he that useth it is not faithful but breaketh his oath.” (3 Inst. 221.)

[100] Dominus autem pro quo Duellum subierat amittet penitus quicquid per illud intendebat obtinere. Nec aliquid ulterius ipse vel Heredes sui in querelâ contentionis de cetero poterunt reclamare. (Le Grand Custum. de Normand. c. 127.)

[101] In taking leave of the trial by Duel, the Reader will recall to mind Judge Blackstone’s observation—that, though this species of Trial is much disused, it is still in force, if the parties chuse to abide by it. (3 Comm. 337.)

[102] Coram Justiciis in Banco sedentibus is the much controverted passage of the Text. Mr. Reeves conceives it to mean, before the Justices in open court, observing, that this phrase has been quoted by some persons to shew, that in the time of Glanville, there were Justices de banco, in the modern sense of those words, a construction, he proceeds to remark, which this passage will certainly not warrant. (Hist. Eng. Law, 1. 125. in note.) On the same side with Mr. Reeves we find Mr. Madox, who is, undoubtedly, a very respectable authority, did he not indicate rather too strong an inclination to interpret the passage, in favor of his own hypothesis. (Madox’s Excheq. c. 19.) Lord Hale follows on the same side. “Neither,” says he, “do I find any distinct mention of the court of common Pleas in the time of this king,”—speaking of Henry the second. (Hist. Com. Law, p. 142.) This, it must be confessed, is but negative authority; for though it may possibly be contended, that his Lordship viewed the doctrine of the Text in the same light as Mr. Madox and Mr. Reeves view it, yet, it is more probable, that he had forgotten it, or he otherwise would have noticed, if merely to refute, it. As a strong supporter of a contrary doctrine, we find Lord Coke. (2. Inst. 22. See also pref. to 8 Rep. and Co. Litt. 71. b. and Mr. Hargrave’s note.) The reasons adduced by Mr. Reeves and those who concur with him, appear by no means conclusive; and I think it would be far from difficult to give a complete answer to them, from considering the style and manner of expression peculiar to our author. But as this is purely a speculative point, at least in the present day, I am not anxious to balance it in pulvere scholastico, as Mr. Madox professes to do it, but follow the high authority of Lord Coke, without pretending to assert, that even his opinion may not here be liable to question, so very doubtful is any conclusion which we may come to upon the subject!!

[103] Vide Bracton 130. s. 19, 20.—Fleta 43. s. 4. and Britton c. 5. s. 7. and Infra, L. 7. c. 17. &c.

[104] But the Cottonian and Dr. Milles’s MSS. concur in stating it to be, to the Vicinage. That the printed text of Glanville is correct, seems unquestionable, as he mentions a reference to the Vicinage, after that to the kindred had failed. All this is clear: but according to the MS. alluded to, a reference must be made to the Vicinage, after the Vicinage, which is assuredly absurd. To this may be added, that the printed text corresponds with another part of Glanville, where an object, not altogether dissimilar, is in view. Vide L. 5. c. 4.

[105] Mr. Reeves thinks the term magna in the present passage an interpolation, because the Cottonian, Bodleian, and Harleian MSS. omit the word. It is with reluctance I differ from a writer, to whom the profession is under such very considerable obligations—but I submit, 1st, That the word magna had occurred in the preceding chapter, and all these MSS. had concurred in admitting it. 2ndly, That the connection of the subject shews the Assise spoken of in the two places, to be one and the same proceeding. 3rdly, That in numberless other passages our author characterises this Assise by the term magna, and most, if not all, of the MSS. admit it in such passages. 4thly, That the Regiam Majestatem, the Mirror, the Diversity of Courts, Bracton, Fleta, Lord Coke, Judge Blackstone, Cowell, Spelman, Madox, and many others, always speak of this proceeding under the term Grand Assise; and lastly, that as the word assisa had a variety of meanings, it seems no less consistent with clearness of expression, than compatible with the dignity of a proceeding, intended in its object to effect so remarkable a revolution in our judicial polity, as the abolishing of the Duel, to attach some honorable term of distinction to it.

[106] Status integritati tam salubriter. Our Author alludes to the consequences that befel the conquered champion: he lost his life, or his law &c. But, in losing his law, his condition or state in society, as a civil character, was affected, being no longer capable of waging the Duel for another &c. The Assise, says he, is so regardful of the lives of men—of their condition, as civil Beings, that it exposes neither the one nor the other to any danger.

The whole chapter is sufficiently crabbed and quaint: indeed, the most difficult parts of the whole work are those in which the author has aimed at being elegant.

This observation applies with particular force to our Author’s Preface.

[107] See Note page 40.

[108] Sextarii. Vide Spelm. Gloss. ad vocem.

[109] Stikis. A stike seems to be 25, sic dicta quod trajecto vimine, (quod stic dicimus) connectebantur. (Spelm. Gloss. ad voc. stica.)

[110] Vide F.N.B. 9.

[111] A Constitution, an Institution, an Assise, were promiscuously employed to designate a Statute or Law.

[112] “All the persons suspect to either of the party,” says the Regiam Majestatem, “shall be repelled.” (Vide Reg. Majestatem, L. 1. c. 10.) See also Bracton 185. a.

[113] “The absence of either of the Parties shall not stay the Assise to proceed, seeing they did consent that the matter should pass to the knowledge of an Assise.” (Regiam Majestatem, L. 1. c. 12.)

[114] Concerning this mode of supplying the Jurors, termed in our old Law Books afforciament, the Reader may consult the Mirror, c. 4. s. 24.—Bracton L. 4. c. 19.—Britton p. 136.—Fleta 4. c. 9. s. 9. and Mr. Kelham’s Translation of Britton’s Pleas of the Crown. Note 22. p. 35.

[115] The Reader will remark the singular coincidence, in many respects, between the two proceedings, the Duel and the Grand Assise. This was no doubt intentional, and indicated a wise and political tenderness towards the prejudices of the age, still strongly inclining towards the trial by Battle.

[116] “Because,” says the Regiam Majestatem, “the fruits extant and dependant upon the ground are part of the Land and ground.” (L. 1. c. 12.)

[117] It may be here noticed, that the present chapter is one of the authorities to which Lord Coke appeals, in support of his position, that an attaint lay at common Law, both in Pleas real and personal. (2 Inst. 129, 236.)

[118] In commenting upon the Statute de finibus levatis, 27. Ed. 1. Mr. Barrington observes, “the Statute consists of four chapters, and the first states, the great perjury which prevailed among Jurors at this time, which offence in a witness was not now punishable by any Act of Parliament; it may be perhaps thought a reflection on the common Law to assert, that this crime was totally disregarded, but yet we do not hear of any such prosecution, except the attaint of a Jury be considered as such.” (Observ. on Anc. Stat. 176.) It will not, I trust, be considered as a want of respect for the high authority in question, to observe, that the general position intended to be supported, seems to be refuted by the latter part of the passage, if, as I conceive, the Juror was, in those times, of necessity a witness: it was part of his qualification that he was a witness, the two characters being then blended. This is, I submit, evident from the 17th chapter of the present book. A separation of character seems to have been the gradual effect of posterior times. Nor is this all. The punishment of a Juror, when guilty of perjury, appears from the present chapter of Glanville to have been imposed by an Act of Parliament. If this Act, like most, if not all, of those mentioned in the following pages, be not now extant, it is assuredly no small part of the merit of Glanville, that he has preserved the substance of those public Records, of which no other trace can be found.

[119] Our author seems to allude to the punishment inflicted on the conquered Champion—such Champion’s cowardice being esteemed a species of perjury, as Lord Coke informs us, with which the perjury of the Jurors in the assise was commensurate. The same principle pervades the Norman Code—Omnes autem illi, qui perjurio vel læsione fidei sunt infames, ab hoc etiam sunt repellendi; et omnes illi qui in bello succubuerunt. (Le Grand Custum. de Normand. c. 62.)

[120] This R. should be N.

[121] Commodatam, locatam, &c. The Reader will recognise these Terms as borrowed from the Roman Law.

In the tenth Book, our author resumes the discussion of them.

[122] Warrantum. Sir Henry Spelman is inclined to derive this Term from the Saxon Primitive War, arma, telum, defensio, &c. Dr. Sullivan tells us, it was derived from War, because, in real Actions, the Trial was of old by Combat. Dr. Cowell, however, prefers deriving warrantia from the French garantie or garant. The Doctor notices the stipulatio of the Civilians, but, as he observes, “this reacheth not so far as our warranty.” The term, it seems, is of great antiquity, and is said not to have been unknown to the Longobardi in their original settlements. (Spelm. Gloss. ad voc. and Cowell’s Interpreter, ad voc. and Sullivan’s Lectures, 119.) It does not fall within the scope of these notes, to bring the Law down to the present day.—The translator would otherwise have availed himself largely of Bracton’s 5th book. Fleta L. 5. c. 4. Britton 197, &c. Co. Litt. 364. b. et seq. and Mr. Butler’s admirable annotations.

[123] Escambium, a term used in Domesday. Sir Edward Coke, in speaking of a warranty, observes, that it is a covenant real, annexed to Lands, whereby a man and his heirs are bound to warrant the same “and to yield other Lands and Tenements (which in old books is called in Excambio) to the value of those that shall be evicted by a former title.” (See Co. Litt. 365. a. and 51 b.) It should seem from Bracton, that if the warrantor had not sufficient property to make a full restitution, he was to do so as far as his property extended, and the Tenant was to wait, until better times, for the deficiency. If the Warrantor had no property, he was not, from that circumstance, to be entirely absolved from making restitution, whilst there was any probability of his inheriting property from that person, on account of whom he was called to warrant.

On the other hand, he was not bound to warrant the deed of his ancestor, at the expense of any purchase made by himself.—Nor was the recompense to be estimated, beyond the value of the property at the time it was originally warranted.—Nor was one of many warrantors, required to bear the burthen solely, the others being obliged to contribute, (Bracton 394. b. 395. a. See also le Grand Custum. de Norm. c. 50.)

[124] “At the day assigned to the warrantor for appearance, he may essoin himself, or not essoin himself.

“If he neither appears, nor sends an Essoin, the power and benefit of the Law shall be denied to him which is granted to others: for it is an unseemly thing and an iniquity (that he being summoned, appears not by himself nor by another.)” (Reg. Maj. L. 1, c. 21.)

[125] Having laid down the same doctrine, the Regiam Majestatem adds, “it is so to be understood of all other things debateable, whereof the Warrantor is not called in lawful time.” (L. 1. c. 32.)

[126] Knowledge, according to the Harl. and Bodl. MSS.

[127] Attachiabitur. Attachiare is said to be derived from the French attacher. It differed from arrestere in many respects. An Arrest, say the old Books, proceeds out of the inferior courts by precept; an attachment, out of the superior courts by precept, or writ. (Lamb. Eiren. L. 1. c. 16.) An Arrest lies only against the body of a Man; an Attachment, sometimes against the goods only. Thus Kitch. (fol. 279. b.) says, a man may attach a cow; and, in another case, that a man may be attached by a hundred sheep; and it is sometimes awarded against the body and goods together. An Attachment is said to differ from a capias, because the former is more general and extends to the taking of the goods, a capias extending to the body only. An Attachment is laid down as differing from a Distress, inasmuch as it is a Process enumerated to issue, previous to a distress. Thus far our old law Books, (vide Termes de la ley ad voc. attach. Cowell’s Interpreter and Spelman’s Glossary.)

[128] Advocationibus. “Advocatio,” says Sir Wm. Blackstone, “signifies in Clientelam recipere, the taking into protection, and therefore is synonymous with Patronage, Patronatus.” (2 Comm. 21.) With this concurs Lord Coke—“Advocatio signifying an advowing, or taking into protection, is as much as jus patronatûs.” Again “In Britton Cap. 92. The Patron is called avow, and the Patrons advocati, for that they be either founders or maintainers, or Benefactors of the church, either by building, donation, or increasing of it, in which respect they were also called patroni, and the advowson jus patronatûs.” His Lordship cites Bracton L. 4. fol. 240. Fleta L. 5. c. 14. (see Co. Litt. 17. b. and 119. b. Cowell ad voc. and Spelm. Gloss. ad voc.)

[129] Personam, a Parson. (Vide Co. Litt. 300. a. b. Bl. Comm. 1. 383.) Cowell derives the word from the French personne.

[130] L. 13. C. 18. et seq.

[131] That is, according to the Cottonian and Dr. Milles’s MSS. the person who has deforced the advowson of the church.

[132] The Advowson, Bodl. and Cotton. MSS.

[133] During the 15 days, Cotton, and Dr. Milles’s MSS.

[134] “Replegiare is compounded of re and plegiare, as much as to say, to redeliver upon pledges or Sureties.” (Co. Litt. 145. b.).

[135] Mr. Madox informs us, when speaking of the King’s Debtor, “If he was a Clergyman, and had no lay Fee, whereby he might be distrained, writs were wont to issue to the Bishop of the Diocese, commanding him to distrain such Debtor, by his Ecclesiastical Benefices. Many of these writs had in them a clause importing, that if the Bishop failed to make due Execution, the King would cause the Debt to be levied on the Bishop’s Barony.” (Madox’s Excheq. c. 23.)

[136] He should not lose his church, according to the Regiam Majestatem, (L. 3. c. 33.)

[137] The unsuccessful party.

[138] The Harl., Bodl. and Cotton. MSS. concur in introducing not into this passage.

[139] Vide F.N.B. 89.

[140] Villenagium. “Villein is from the French word Villaine, and that, à villâ, quia villæ adscriptus est.”—“Villenagium, (as in like cases hath been said where the termination is in age) is the service of a Bondman. And yet, a freeman may do the service of him that is bond.” (Co. Litt. 116. a. See also Cowell ad voc. and Mirror, c. 2. s. 28.)

[141] Nativum. In the 6th chapter of the present Book our Author explains the sense in which he uses the term—nativi à primâ nativitate suâ. “In Glanville,” says Lord Littleton, “the nativi are comprehended under the Term Villenagium, which is used by that Author synonymously with Servitude, and in opposition to freedom, as a state, not a tenure.” (3 Hist. Hen. 2. 189.) Upon the Term nativus, Sir Edward Coke observes, “in the common Law he is called nativus, quia pro majore parte natus est servus.” (Co. Litt. sed vide Craig L. 1. Dieg. 4. s. 6.)

[142] In this the Mirror, (c. 2. s. 28.) concurs.

[143] Vide F.N.B. 171, 172.

[144] Proclamat, according to the Bodl. MS., which I follow, proclamo, appello, provoco, &c. (Spelm. Gloss. ad voc.)

[145] “Yet,” says the Mirror, “if the Defendant can shew a free stock of his Ancestors, either in the conception, or in the birth, the Defendant hath always been accounted for a freeman, although his Father, Mother, Brother, and Cousins, and all his Parentage, acknowledge themselves to be the Plaintiff’s Villeins, and do testify the Defendant to be a Villein.” (Mirror, c. 3. s. 23.)

We must suppose that this was an improvement posterior to the time of Glanville, since though some part of the Mirror was probably written before the conquest, the other part was written subsequently to the Reign of Henry the 2nd. Few ancient law books would perhaps stand higher than the Mirror, could we clearly ascertain what was original, what was superadded. At present, one part of the work is often a direct refutation of another part.

[146] “It shall be tried by an Assise,” says the Reg. Majestatem, (L. 2. c. 11.)

[147] “Acknowledge him to be related to them, whilst those produced by the other party should”—Added by Cotton., Bodl. and Dr. Milles’s MSS.

[148] “Or to disprove it.” Bodl. and Dr. Milles’s MSS. The Regiam Majestatem is yet more unrestrained—“But, it is to be noted, that single combat shall not have place in any plea, to prove or disprove the liberty or Estate of any man.” (L. 2. c. 11.)

[149] The Mirror enumerates many other modes by which a Villein was enfranchised, besides those stated by Glanville, which appear rather to be put for examples, than as comprising all the instances of emancipation; and the Mirror confirms most, if not all, of the Examples in the text. (c. 2. s. 28.) The Regiam Majestatem informs us, that Holy Orders enfranchised, if taken with the consent of the Lord. The Villein was also enfranchised, if the Lord seduced his wife, for the Law permitted the Villein to receive no other amends. The Villein was likewise emancipated, if the Lord drew blood of him, or, if the Lord refused to bail him, either in a civil or criminal action in which he was afterwards cleared by Trial. (Regiam Majestatem, L. 2. c. 12.) The act of enfranchisement, when not arising by implication of Law, of which description many of the instances appear to be, was, in ancient times and before writing was common, accompanied by much publicity and ceremony. Qui servum suum liberum facit in Ecclesiâ, vel Mercato, vel Comitatu, vel Hundredo, coram testibus et palam faciat, et liberas ei vias et portas conscribit apertas, et lanceam et gladium vel quæ liberorum arma in manibus ei ponat. (Anglo-Sax. LL. Ed. Wilkins.) When writing became common, the method was, by the Lord’s Deed expressly enfranchising the Villein. Upon the subject of Villenage, Fortescue’s words are no less remarkable for the truth and beauty of the sentiment they express, than singular, when it is considered that they were addressed to a Prince. Ab homine et pro vitio introducta est servitus: sed Libertas à Deo hominis est insita naturæ. Quare ipsi ab homine sublata semper redire gliscit, ut facit omne quod libertate naturali privatur. (de laudibus legum Angliæ, c. 42.)

[150] “Except he received his liberty and was made free with the Licence, good-will, and special command of the King.” (Reg. Maj. L. 2. c. 12.) Lord Littleton ascribes the rule in the text, to a jealousy of judicial proceedings. (3 Hist. Hen. 2. p. 192.) It more probably originated from the chivalric pride of the times. As the great Lords often personally engaged in the combat, their own importance was increased by keeping up the dignity of this mode of Trial.

[151] Bracton L. 1. fol. 6. b. 7. a. But even this period would not operate as a bar to the Lord, if within the year clameum suum qualitercunque apposuerit.—“If he remained quietly” are the words of the Regiam Majestatem, during a year and a day in a privileged Town he became free—but out of a privileged town seven years was the period—but this latter prescription held not good against the King. (L. 2. c. 12.)

[152] Villa privilegiata. Item, says a Law of the Conqueror, si servi permanserint sine calumniâ per annum et diem in civitatibus nostris vel in burgis in muro vallatis, vel in castris nostris, à die illâ liberi efficiuntur, et liberi à jugo servitutis suæ sint in perpetuum. (LL. Gul. Conq. 66. Ed. Wilkins, p. 229.) “By privileged Town is meant a Town that had Franchises by prescription or charter—and this communication of liberty from thence to a Villein residing among them so short a time, shews the high regard to the Law of such corporations, and likewise a desire to favor enfranchisement, as much as the settled rules of property would admit.” (3 Hist. Hen. 2. p. 191. Litt.) This part of our Author’s text is considerably elucidated by Fleta, L. 4. c. 11. s. 11. and Co. Litt. 137. b.

[153] Gyldam, from the Saxon geldan and gildan. Gildare occurs in Domesday frequently pro solvere, reddere. (Vide Spelman Gloss.)

[154] “Those are Villeins who are begot of Villeins and Niefs in servitude, whether born in matrimony or out of matrimony; those also are Villeins who are begotten of Villeins and born of free-women in matrimony, and those are Villeins who are begotten of a freeman and a Nief and born out of matrimony.” (Mirror, c. 2. s. 28. See also Bracton fols. 4. 5. and Fleta L. 1. c. 3.)

[155] From the extreme brevity and quaintness of the original, it is a matter of some doubt, what the true meaning of the passage is. Lord Littleton gives the passage thus. “We are told by Glanville, that in his time, if a freeman married a woman born in Villenage and who actually lived in that state, he lost thereby the benefit of the Law (that is all the legal rights of a freeman,) and was considered as a Villein by birth, during the lifetime of his wife, on account of her Villenage.” This, however, is at best but a loose paraphrase of Glanville. His Lordship was aware of it, and to confirm his representation of what is said, as he terms it, so indistinctly by Glanville, he refers to Bracton, fol. 5. Mr. Reeves makes this severe penalty upon the Husband to arise, not from the wife living in a state of Villenage, but her holding property in Villenage. The fact is, the text expresses neither Lord Littleton’s Explanation, nor that given by Mr. Reeves. I do not flatter myself to have succeeded better. In Britton’s time, the wife was enfranchised during the coverture. (78. b.) Vide Co. Litt. 123. a. and 137. b. and Mr. Hargrave’s notes thereon.

[156] “This,” exclaims Lord Littleton, “was absolutely putting children upon the same foot as cattle, or other stock on a farm, without the regard that is due to the inherent freedom and dignity of human nature.” (3 Hist. Hen. 2. p. 191.)

[157] On the subject of the present Book in general, see Bracton fol. 92 et seq. and Fleta L. 5. c. 23. et seq.

[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.)

[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.)

[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.)

[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.

[162] For this purpose our Author gives us the form of a Writ, Chapter 18th of the present Book.

[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.)

[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.)

[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.

[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.)

[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.)

[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.)

[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.)