h

issue, the husband fhall be entitled to do homage to the lord, for the wife's lands, alone: whereas, before iffue had, they must both have done it together. It is likewife used in Ireland, by virtue of an ordinance of king Henry III. It also appears to have obtained in Normandy; and was likewife. ufed among the antient Almains or Germans'. And yet it is not generally apprehended to have been a confequence of feodal tenure, though I think some fubftantial feodal reasons may be given for it's introduction. For, if a woman feised of lands hath iffue by her husband, and dies, the husband is the natural guardian of the child, and as fuch is in reafon entitled to the profits of the lands in order to maintain it (5); for which reason the heir apparent of a tenant by the curtesy could [127] not be inward to the lord of the fee, during the life of such tenant'. As foon therefore as any child was born, the father began to have a permanent intereft in the lands, he became one of the pares curtis, did homage to the lord, and was called tenant by the curtesy initiate; and this eftate being once vested in him by the birth of the child, was not suffered to determine by the fubfequent death or coming of age of the

infant.

THERE are four requifites neceffary to make a tenancy by the curtefy; marriage, feifin of the wife, iffue, and death of the wife". 1. The marriage must be canonical and legal.

g Pat. 11 H. III. m. 30. in 2 Bac. Abr. 659.

Grand Couftum. c. 119.

1 Lindenbrog. LL. Alman. t. 92.

* Wright. 294.

IF. N. B. 143.

m Co. Litt. 30.

afterwards introduced into Scotland and Ireland. 2 Woodd. 18. Tenant by the curtesy of England, perhaps originally fignified nothing more than tenant by the courts of England; as in Latin he is called tenens per legem Anglia. See ftat. pro tenentibus per legem Anglie. App. to Ruff. 29.

(5) And this eftate feems founded upon the natural and rational principle, that it is fitter that the fon should be in a state of dependence upon the father, than the father upon the fon.

VOL. II.

Ꮮ

2. The

BOOK II. 2. The feifin of the wife must be an actual seifin, or poffeffion of the lands; not a bare right to poffefs, which is a feifin in law, but an actual poffeffion, which is a feifin in deed. And therefore a man fhall not be tenant by the curtesy of a remainder or reverfion. But of fome incorporeal hereditaments a man may be tenant by the curtefy, though there have been no actual feifin of the wife as in cafe of an advowfon, where the church has not become void in the life-time of the wife; which a man may hold by the curtesy, because it is impoffible ever to have actual feifin of it, and impotentia excufat legem". If the wife be an idiot, the husband shall not be tenant by the curtesy of her lands; for the king by prerogative is entitled to them, the instant she herself has any title: and fince fhe could never be rightfully feifed of the lands, and the hufband's title depends entirely upon her feifin, the husband can have no title as tenant by the curtefy (6). 3. The iffue must be born alive. Some have had a notion that it must be heard to cry; but that is a miftake. Crying indeed is the frongest evidence of it's being born alive; but it is not the only evidence P. The iffue alfo must be born during the life of the mother; for, if the mother dies in labour, and the Caefarean operation is per[128] formed, the husband in this cafe fhall not be tenant by the curtefy because, at the inftant of the mother's death, he was clearly not entitled, as having had no issue born, but the land defcended to the child, while he was yet in his mother's womb; and the estate being once fo vested, shall not afterwards be taken from him. In gavelkind lands, a husband may be tenant by the curtefy without having any iffue' (7). But in general there must be iffue born; and such

(6) See this doubted in Harg. Co. Litt. 30.

(7) But a tenant by curtefy of gavelkind lands has only a moiety of the wife's eftate, which he lofes by a fecond marriage. Robin. Gavelk. b. 2. c. 1.

iffue as is also capable of inheriting the mother's estate. Therefore if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtefy; because fuch iffue female can never inherit the estate in tail male. And this feems to be the prin cipal reason, why the husband cannot be tenant by the cur tesy of any lands of which the wife was not actually seised; because, in order to entitle himself to such eftate, he must have begotten iffue that may be heir to the wife; but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually feifed; and therefore as the husband hath never begotten any iffue that can be heir to those lands (8), he shall not be tenant of them by the curtefy". And hence we may obferve, with how much nicety and confideration the old rules of law were framed ; and how closely they are connected and interwoven together, fupporting, illuftrating, and demonftrating one another. The time when the iffue was born is immaterial, provided it were during the coverture: for, whether it were born before or after the wife's feifin of the lands, whether it be living or dead at the time of the feifin, or at the time of the wife's decease, the husband shall be tenant by the curtesy ". The husband by the birth of the child becomes (as was before obferved) tenant by the curtefy initiate, and may do many acts to charge the lands: but his eftate is not confummate till the death of the wife; which is the fourth and laft requifite to make a complete tenant by the curtesy Y.

IV. TENANT in dower is where the husband of a woman is feised of an estate of inheritance, and dies; in this cafe, the wife fhall have the third part of all the lands and tene

(8) The iffue in this cafe must be heir to the lands, though he is not heir to his mother; but he will inherit them by an immediate defcent from the person last seised.

[ 129

[130]

ments whereof he was feifed at any time during the coverture, to hold to herself for the term of her natural life.

DOWER is called in Latin by the foreign jurifts doarium, but by Bracton and our English writers dos: which among the Romans fignified the marriage portion, which the wife brought to her husband; but with us is applied to fignify this kind of estate, to which the civil law, in it's original state, had nothing that bore a resemblance: nor indeed is there any thing in general more different, than the regulation of landed property according to the English and Roman laws. Dower out of lands feems also to have been unknown in the early part of our Saxon conftitution; for, in the laws of king Edmond 2, the wife is directed to be fupported wholly out of the personal estate. Afterwards, as may be seen in gavelkind tenure, the widow became entitled to a conditional eftate in one half of the lands; with a provifo that the remained chafte and unmarried; as is ufual alfo in copyhold dowers, or free bench. Yet fome have afcribed the introduction of dower to the Normans, as a branch of their local tenures; though we cannot expect any feodal reason for it's invention, fince it was not a part of the pure, primitive, fimple law of feuds, but was first of all introduced into that fyftem (wherein it was called triens, tertia, and dotalitium) by the emperor Frederick the second; who was contemporary with our king Henry III. It is poffible, therefore, that it might be with us the relic of a Danish custom: fince, according to the hiftorians of that country, dower was introduced into Denmark by Swein, the father of our Canute the great, out of gratitude to the Danish ladies, who fold all their jewels to ransom him when taken prisoner by the Vandals. However this be, the reafon, which our law gives for adopting it, is a very plain and fenfible one; for the fuftenance of the wife, and the nurture and education of the younger children.

z Litt. §36.

a Wilk. 75.

b Somner. Gavelk. 51. Co. Litt.

33. Bro. Deer. 70.

C Wright. 192.

d. Crag. l. 2. t. 22. § 9.

e Ibid.

f Mod. Un. Hift. xxxii. 91.

8 Bract. 1. 2. c. 39. Co. Litt. 30.

IN treating of this eftate, let us, firft, confider, who may be endowed; fecondly, of what she may be endowed; thirdly, the manner how fhe fhall be endowed; and fourthly, how dower may be barred or prevented.

1. WHO may be endowed. She must be the actual wife of the party at the time of his decease. If fhe be divorced a vinculo matrimonii, fhe fhall not be endowed; for ubi nullum matrimonium, ibi nulla dosh. But a divorce a menfa et thoro only doth not destroy the dower ; no, not even for adultery itself by the common law *. Yet now by the ftatute Westm. 2. if a woman voluntarily leaves (which the law calls eloping from) her husband, and lives with an adulterer, she shall lofe her dower, unless her husband be voluntarily reconciled to her (9). It was formerly held, that the wife of an idiot might be endowed, though the husband of an idiot could not be tenant by the curtesym: but as it seems to be at prefent agreed, upon principles of sound sense and reason, that an idiot cannot marry, being incapable of confenting to any contract, this doctrine cannot now take place. By the antient law the wife of a perfon attainted of treafon or felony could not be endowed; to the intent, fays Staunforde", that if the love of a man's own life cannot reftrain him from fuch atrocious acts, the love of his wife and children may though Britton gives it another turn: viz. that it is presumed the wife was privy to her husband's crime. However, the fta

(9) And in a cafe where John de Camoys had affigned his wife, by deed, to fir William Paynel knight, which lord Coke calls conceffio mirabilis et inaudita, it was decided in parliament, a few years after the ftatute was enacted, notwithstanding the purgation of the adultery in the spiritual court, that the wife was not entitled to dower. 2 Inft. 435.

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