Bracton: Thorne Edition: English. Volume 2, Page 269

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 269

Next

Go to Volume: Page:

[001] constituted. ¹Dower may from the beginning be constituted in property that is
[002] certain and specified or uncertain and unspecified: certain and specified, as of some
[003] certain manor, no matter of whose fee it is, for, as said above,² when the husband
[004] holds several tenements of different fees and different chief lords he may choose
[005] of whose fee he wishes to endow his wife specifically, [provided it is not the caput
[006] of a barony,³ for a manor which is the head of a barony will remain entire to the
[007] heir, the warrantor of her dower, since she must not be endowed therewith if she
[008] can obtain her dower of other lands, [that is], if there are other manors which are
[009] not the heads of baronies.⁴ If the several manors in an inheritance are heads of
[010] baronies, what was said of one such manor applies to the several, provided the wife
[011] can obtain her dower elsewhere. If she cannot, something else will have to be done,
[012] for necessity knows no law, because what is not otherwise lawful necessity makes
[013] lawful.⁵ On this matter may be found [in the roll] of Trinity term in the fourth
[014] year of king Henry in the county of Northampton, [the case] of Theobald de
[015] Lascelles.⁶ But what is said of a barony need not be followed in a vavassory, or in
[016] other fees smaller than a barony, for it does not have⁷ a caput as a barony has. And
[017] what is said of a barony and a baron ought to be observed in the case of a county
[018] and an earl,⁸ whether there is a castle there or not. If the wife can obtain her
[019] specified dower in land other than the manor which is the head of the barony, and
[020] when she seeks her dower of such manor it is objected that she ought not to have
[021] dower there for that reason, and she replies to the contrary that [in the past] an
[022] ancestor of the heir endowed his wife of such manor,⁹ a triplicatio may be made on
[023] behalf of the heir that this was not done de jure but rather out of the heir's ignorance
[024] or by his free consent, which ought not to be drawn into a precedent for the
[025] future.¹⁰ But if all the manors are heads of baronies and held in chief of the king,
[026] and there is no other land that suffices for dower, she may be endowed out of such
[027] manor,¹¹ saving the castle, if there is one, or the chief messuage if there is no
[028] castle, to the heir. But since the custody of the castle or chief messuage without the
[029] tenement¹² is sometimes burdensome to the heir, when the wife is endowed of the
[030] manor without any exception [this rule] is sometimes ignored and seisin of the
[031] castle [given] to the wife, because of the burden, subject to the condition that it
[032] be restored to the king in time of war or other necessity, if he wishes and when he
[033] wishes, as was done in the case of the countess of Lincoln, the wife of Walter the
[034] earl marshall,¹³ with respect to a certain

Notes

1. New paragraph

2. Supra 267

3. Supra 222; Cal. Cl. Rolls, 1234-37, 226

4. Infra iii, 403

5. Infra iii, 231, iv, 44; X. 5.41.4

6. B.N.B., no. 96 (Hilary and Easter); C.R.R., viii, 240 (Hilary); not on roll of Trin. 4

7. ‘habet’

8. Supra 222

9. As in the Lascelles case supra n. 6

10. Supra 222

11. Infra 270

12. ‘sine tenemento’

13. Cal. Pat. Rolls, 1247-58, 41 (30 Apr. 1249)