Bracton: Thorne Edition: English. Volume 2, Page 266

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Volume 2, Page 266

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[001] dies within age, his wife will have her dower whether she is within age or not. On
[002] this matter may be found [in the roll] of Easter term in the ninth year of king
[003] Henry in the county of Devon, [the case] of Sarah wife of William Burnel.¹

When and where.

[005] When? Before the marriage, at the beginning of the marriage.² Where? In the
[006] face of the church and at the church door. A constitution of dower made on the
[007] death bed³ or in a private chamber is invalid,⁴ [or elsewhere when the marriage is
[008] clandestine, for if secret nuptials are sufficient⁵ for heirs with respect to succession,⁶
[009] they will never suffice to provide dower for wives,]⁷ and it therefore must be made
[010] publicly and with a ceremony at the church door.⁸ Where there is no marriage at
[011] all there is no dower, and thus it appears conversely that wherever there is a
[012] marriage there is dower,⁹ which is true if the marriage is contracted in the face of
[013] the church. A [valid] constitution of dower may be made at the church door between
[014] any persons whatever, those related by blood or affinity as well as strangers,
[015] provided the marriage is not challenged or dissolved in the lifetime of the parties;
[016] if it is challenged and dissolved, for whatever reason, dower ceases to exist, since
[017] the marriage comes to an end, and any claim for dower fails:¹⁰ one need [never]
[018] answer in an action of dower to two wives claiming through one husband.¹¹

Of the two kinds of dos.

[020] ¹²<Dos is of two kinds, profectitious and adventitious: profectitious is that given by
[021] a father¹³ or mother or other parent¹⁴ when the agreement for marrying a daughter
[022] is made; [The land so given, [which] may be called her maritagium or patrimony,¹⁵
[023] sometimes falls into the pot among female co-heirs, if the daughter so provided for
[024] wishes to have a share of the inheritance, as above.¹⁶ An absolute gift made without
[025] a matrimonial causa is not called [a maritagium],]¹⁷ adventitious, given by a person
[026] other than the father¹⁸ or mother [or parent], whether a relative or a stranger.
[027] Parapherna is the same as dos, made besides or in addition to dos.¹⁹ [even if it is made
[028] before marriage or during marriage, whether to the husband and wife together²⁰ or to
[029] the wife alone,²¹ [and] it does not fall into the pot, though made by parents, because
[030] the gift is absolute and not made for a matrimonial causa, as above.]²² There is also
[031] a gift propter nuptias made [by the husband to the wife] on the marriage day, what
[032] the bridegroom gives the bride at the church door. That is properly called the wife's
[033] dos according to English custom,²³ and it is that with which we deal here. The
[034] husband gains it if his wife predeceases him and it remains to the wife for life if her
[035] husband predeceases her.²⁴ He sometimes gains it by law in his wife's lifetime, when
[036] a divorce is solemnized between them for some

Notes

1. B.N.B., no. 1098; see C.R.R., xii, v

2. Supra 77: ‘in ipso contractu’

3. Infra iii, 377; B.N.B., no. 891; cf. Kantorowicz, 42-3; Woodbine in Yale L. Jour., lii, 433-7

4. Infra iii, 374, 377, B.N.B., no. 1875

5. Om: ‘non’

6. Infra iii, 372, 373-4, 377, iv, 305

7. Infra iii, 374

8. Infra 273, iii, 372, 376-7

9. Infra iii, 362, 372, 373

10. Infra iii, 362, 372, 377

11. Infra iii, 362, 363, 381

12. Supra i, 384; Richardson in E.H.R., lix, 382; Bracton, 46-8, 104-8

12-13. Raymund de Pe±afort, Summa de casibus, iv, 25.1; Tancred, Summa de matrimonio, 109; D. 23.3.5.1: ‘Profecticia dos est quae a patre vel parente profecta est de bonis vel facto eius.’

14. ‘ab avo pro nepote,’ Raymund; Tancred, 110; Fleta, v. ca. 23

15. ‘et ipsa dos est quasi patrimonium mulieris,’ Raymund; Tancred, 108

16. Supra, 79, 223, 224

17. ‘causa matrimonii [maritagium]’; continued in brackets below

18. Raymund, iv, 25.1; Tancred, 109

19. ‘Idem est dos parapherna’

20. Supra 96, 224

21. Supra 77, 79

22. Ibid., 224

23. Glanvill, vi, 1: ‘Dos duobis modis dicitur. Dos enim dicitur vulgariter id quod aliquis liber homo dat sponsae suae ad ostium ecclesiae tempore desponsationis suae.’; vii, 1: ‘In alia acceptione accipitur dos secundum leges romanas, secundum quas proprie appellantur dos id quod cum muliere datur viro, quod vulgariter dicitur maritagium.’; supra 77, G’terbock, 135

24. Raymund, iv, 25.2; Tancred, 110