Bracton: Thorne Edition: English. Volume 2, Page 79

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Volume 2, Page 79

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[001] as where the donor gives it reserving to himself and his heirs the service due.
[002] The service due will then be done without homage until the third heir enters, and
[003] thenceforward he and succeeding heirs will do homage and service.¹ But in both
[004] cases² before homage is done and prior to the third heir's entry the husband and
[005] his heirs, or the widow of the donee while she is unmarried, will do fealty.³ A
[006] maritagium may not be called free so long as service of any kind and in any amount
[007] is done therefrom, but it may nonetheless be called such if the common payments
[008] that belong not to the lord of a fee but to the king are made [and] if reasonable
[009] aids are furnished, as for marrying daughters and making [sons] knights, which
[010] fall upon persons because they hold freely, not on the tenement that is held freely.⁴
[011] ⁵Land may be [so] given, before marriage or after, by the father or mother or other
[012] relative of the wife, not only to the husband alone⁶ and his heirs, but to the wife
[013] alone⁶ and her heirs, and to both and their common heirs, and thus if partition⁷ must
[014] be made of the common inheritance among the wife and her sister parceners or their
[015] heirs she is not bound to contribute.⁸ In making the partition land given the husband
[016] alone does not fall into the distribution, because he was enfeoffed as any stranger
[017] might be, but that given the husband and wife [together],⁹ or the wife by herself,
[018] some say ought to be contributed, without distinguishing further, a view I do
[019] not approve since no mention is made of marriage, and because what is commonly
[020] said [is] that a maritagium falls into the pot, and thus, as is evident, nothing other
[021] than that given because of marriage and affection, and one could as easily¹⁰ say
[022] that a simple and absolute gift falls into the pot, but that is not said. Thus, it is
[023] submitted, further questions must be asked, whether the land so given, at least
[024] that given to the wife before marriage, was given for that reason, namely, to
[025] facilitate her marriage, or given simply, [to her] as to any other person,¹¹ and
[026] accordingly the gift will or will not fall into the pot.¹² ¹³Land is given in marriage
[027] with a wife in many different ways, as where the donor says, ‘I give to such a one,
[028] my daughter, so much land for her marriage.’ It is apparent, since no mention is
[029] made of heirs, that the gift is only a free tenement, not a fee, and does not extend to
[030] heirs. Hence whether she has children or not, immediately

Notes

1. Glanvill vii, 18: ‘Solet autem quandoque terra aliqua dari in maritagium salvo et retento debito servitio ipsi domini. Et tunc quidem tenebuntur maritus ipsius mulieris et heredes sui servitium illud facere sed sine homagio usque ad tertium heredem. Tertius vero heres primo inde faciet homagium et omnes heredes sui postmodum.’

2. Free and unfree maritagia

3. Glanvill, vii, 18: ‘Alia tamen fidelitas sub fidei vel sacramenti interpositione a mulieribus vel earum heredibus interim fere sub eadem forma et eisdem verbis quibus homagium fieri solet praestari debet.’

4. Infra 116

5-12. Belongs supra 77, at n. 1

6. ‘per se,’ as below; supra 76 line 20, infra 96 n. 14

7. ‘partitionem,’ all MSS.

8. ‘contribuere non tenetur’ from line 18; om: ‘et ideo’

9. Reading: ‘tam viro quam uxori simul’

10. ‘adeo de facili,’ as infra 224

11. Om: ‘et quod ... maritagii’

12. Infra 224, 266

13. New section: ‘How a gift in maritagium is made,’ as rubric supra 76