Bracton: Thorne Edition: English. Volume 2, Page 77

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Volume 2, Page 77

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[001] land may be given in maritagium. It is clear that land sometimes is given before
[002] espousals and because of marriage, by the father or other relative of the woman
[003] to the husband with such woman, or, which has the same effect, to them both
[004] together, that is, to such a man and his wife and their heirs, or to a woman to
[005] facilitate her marriage, or simply and without mention of marriage, a gift such as may
[006] be made to anyone.¹ If marriage is mentioned the land so given may be called a maritagium.
[007] A gift of this kind is made before marriage, sometimes at the marriage,
[008] sometimes after it. There is a gift of another kind made on the marriage day by a
[009] husband to his wife at the church door, which is not properly called a donatio but the
[010] constitution or nomination of dower, as will be explained below in the tractate on
[011] dower.² It is land given propter nuptias that is called a maritagium.

[Some maritagia are free].

[013] ³A maritagium sometimes is free, that is, quit of all service, sometimes burdened
[014] by service. It is called free marriage when the donor wishes the land so given to
[015] be quit and free of every secular service belonging to the lord of the fee, that he to
[016] whom it has so been given do no service at all until the third heir,⁴ and, since the
[017] third heir is included, until the fourth degree. The degrees are to be computed
[018] from the first donee to and including the third heir,⁵ so that the donee is the first,
[019] his heir the second, the heir of the heir the third, and the heir of the second heir the
[020] fourth, who shall be held to service. Computing by heirs, the son or daughter of the
[021] donee will be the first heir, his or her son or daughter the second, and the son or
[022] daughter of the second heir the third, who is bound to do homage and service;
[023] thus the donee and two successive heirs may enjoy such freedom. The reason why
[024] homage ought not be done seems to be because of the reversion to the donor if heirs
[025] fail.⁶ But what if homage is done therefrom by⁷ the third heir and he or his heirs
[026] die without heirs? We must see whether there are other heirs, and if such exist
[027] (they rarely fail within the fourth degree)⁸ the maritagium will revert to them for
[028] failure of heirs descending in the right line. If no such may be found, or if there are
[029] such and they fail, then for failure of all heirs the maritagium will revert to the
[030] donor and for failure of heirs the homage is extinguished.⁹ Now suppose homage is
[031] done before the third heir, quaere whether he is thenceforward held to service.
[032] And in truth he is, as is proved [in the roll] of Michaelmas term in the fifteenth

Notes

1. The portion infra 79, nn. 5-12, belongs here

2. Infra 265 ff.

3-4. Glanvill vii, 18: ‘Maritagium autem aliud nominatur liberum aliud servitio obnoxium. Liberum dicitur maritagium quando aliquis liber homo aliquam partem terrae suae dat cum aliqua muliere alicui in maritagium ita quod ab omni servitio terra illa sit quieta et a se et heredibus suis versus capitales dominos acquietanda. Et in hac quidem libertate ita stabit terra illa usque ad tertium heredem ...’

5. B.N.B., no. 441 (margin); no. 811 (margin)

6. Glanvill, vii, 18: ‘... post mortem uxoris ad donatorem vel ad eius heredes revertitur maritagium. Et haec est quaedam causa quare de maritagio tali non solet recipi homagium. Si enim sic donata esset terra aliqua in maritagium vel alio modo quod inde reciperetur homagium, tunc numquam de cetero ad donatorem vel ad eius heredes licite posset reverti ut supra dictum est.’; infra 226

7. ‘inde a’

8. Infra 226

9. Supra 75, infra 188