Bracton: Thorne Edition: English. Volume 3, Page 363

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Volume 3, Page 363

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[001] when the marriage is dissolved it is extinguished, because it cannot exist without
[002] it,¹ but divorce must be distinguished from a separation from
[003] bed and board.>²
[004] ³<One may not have two lawful wives at the same time,⁴ since ⁵marriage is the joining
[005] together of a man and a woman holding to a single tenor of life;⁶ it does not say of
[006] men and a woman, nor of a man and women, because one man cannot have several
[007] wives nor one woman several husbands⁷ de jure, though he may have several de
[008] facto,⁸ so that sometimes none of those who claim⁹ may be lawful, because she who
[009] is lawful is not present, or dead, and [the husband being dead], she who was once
[010] unlawful can never be made lawful, and thus no one of those who claim will obtain
[011] dower.> And the same, so it seems, may be said if an unfree woman is joined to a
[012] freeman and taken to a free tenement, that their child, born in a free bed,¹⁰ will
[013] have the inheritance and the woman no dower, unless the heir provides dower for
[014] her as a matter of grace, because with the death of her free husband she returns to
[015] her original state of servitude.¹¹

Of two women contending for dower.

[017] The tenant will answer to neither one of two women claiming dower by reason of one
[018] husband until the ecclesiastical court has decided which of them ought to be called
[019] the lawful wife, and which ought to prevail in the claim of dower, as will be explained
[020] more fully below, at the end.¹² When the tenant says that he ought not to answer two
[021] women or several, we must first see whether there is a dispute as to the inheritance
[022] between two or several who claim to be lawful heirs, [for] when the question of
[023] succession and of dower are both raised at the same time, the action for the inheritance
[024] will always be preliminary and must be determined first, lest, if the women are
[025] sent to court christian to determine which of them is the lawful wife, and one of
[026] them proves herself lawful in the ecclesiastical court and the heir of the other proves
[027] himself the lawful heir in the secular court, he would be the warrantor of the other
[028] woman's dower, which ought not to be. Thus when each of them alleges at the outset
[029] that her son is the warrantor of her dower, in order to avoid that embarrassment it is
[030] necessary first to ascertain who the lawful heir is, and the dower of which woman he
[031] ought to warrant, and in that way the question of dower will be determined. When
[032] one heir is in possession of the inheritance (rightfully or wrongfully) and his mother
[033] in possession of dower, if a woman who has nothing alleges that she is the lawful
[034] wife and claims dower, let her first show the warrantor of her dower. If she names a
[035] son or daughter, her claim of dower is suspended and let the son or daughter claim
[036] the whole

Notes

1. Tancred, Summa de matrimonio, 108: ‘Dos quaedam donatio . . . Eius natura est ut durante matrimonio durat, soluto vero solvatur, quia sine eo esse non poterit’

2. Supra ii, 267

3. Om: ‘quia’

4. Om: ‘licet aliquando . . . unam, quia,’ redundant

5-7. Raymond de Penafort, iv, 2, 1; Decretum: C. 27, qu.2, c.1; Inst. 1.9.1; Tancred, Summa de matrimonio, 11

6. Infra iv, 305

8. Om: ‘et unam . . . iure,’ redundant

9. ‘petunt’

10. Supra ii, 30, 31, iii, 92, 94, infra 383

11. Supra 92

12. Infra 384