Bracton: Thorne Edition: English. Volume 3, Page 372

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Volume 3, Page 372

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[001] of king Henry in the county of Derby, [the case] of Agnes the wife of Nicholas.¹
[002] And that in this exception, if the parties do not have their suit on the first day, a
[003] reasonable day ought to be given for the production of suit, is proved [in the roll]
[004] of Easter term in the fifteenth year of king Henry in the county of Surrey, [the case]
[005] of Juetta de la Strode.²

The exception that she was never married to such man.

[007] The writ says, ‘such a one who was the wife of such a one.’ To which the tenant may
[008] except that she was never his wife because she was never married to him, nor did
[009] he ever have relations with her. [Or] if he did have relations with her, he had her
[010] only as his concubine; [or] if she was married, it was not in lawful matrimony,
[011] because he had earlier married another, de jure, the present claimant being de
[012] facto; or if he had no earlier wife de jure, she still may not claim dower because a
[013] divorce was solemnized between them on the ground of consanguinity, compaternity,
[014] or other affinity.³ [Or] if the marriage was lawful, the woman at that time was of such
[015] tender age that she could not receive a husband, so as to deserve dower.⁴ [Or] if a
[016] marriage once existed, it ceased to exist because of divorce. [Where there is no
[017] marriage at the outset, there will be no dower; where there is a marriage at the outset,
[018] there will be dower, as long as the marriage lasts, but if there is a divorce, for
[019] whatever reason, dower and the claim of dower cease.]⁵ [Or] if the marriage was
[020] lawful with respect to the heir and succession to the inheritance,⁶ nevertheless it will
[021] be unlawful as to the exaction of dower, since dower was constituted elsewhere than
[022] at the church door,⁷ because of the words in her intentio, ‘and of which she was
[023] endowed at the church door.’ When this exception is pleaded, that she ought not
[024] to have dower because she was never matrimonially espoused or [joined] in lawful
[025] matrimony to such a one, the man through whom she claims, the inquest cannot and
[026] must not be held in the secular court, since the matter is spiritual. Let the holding of
[027] the inquest therefore be entrusted to the ordinary of the place, the archbishop
[028] or bishop, or to other authorized persons to whom the pope has granted the cognisance
[029] of such matters. But the king will direct a writ only to the archbishop or the
[030] bishop. The form of the writ is this.

The writ for sending an inquest to court christian.

[032] ‘The king to such an archbishop or bishop, greeting. Know that when A. who was
[033] the wife of B. in our court etc. claimed against C. so much land (or ‘the third part of
[034] so much land’) with the appurtenances in such a vill as her dower, of which the said
[035] B. her former husband endowed her at the church door, the same C. came into the
[036] same court and objected that she ought not to have dower because she was never
[037] matrimonially espoused or joined in lawful matrimony to the aforesaid B. And
[038] since cognisance of such matter

Notes

1. B.N.B., no. 502; C.R.R., xiv, no. 1120

2. B.N.B., no. 545; C.R.R., xiv, no. 1368

3. Supra 362, infra 377

4. Supra ii, 265

5. Supra ii, 266, iii, 362, infra 373

6. Infra 373-4, 377

7. Supra ii, 266, infra 373-4, 376-7