tute i Edw. VI. c. 12. abated the rigour of the common law in this particular, and allowed the wife her dower. But a fub[131] fequent ftatute P revived this severity against the widows of traitors, who are now barred of their dower, (except in the case of certain modern treasons relating to the coin ¶) but not the widows of felons. An alien alfo cannot be endowed, unlefs the be queen confort; for no alien is capable of holding lands. The wife must be above nine years old at her hufband's death, otherwife fhe fhall not be endowed: though in Bracton's time the age was indefinite, and dower was then only due "fi uxor poffit dotem promereri, et virum fuftinere1 (10).” P 5 & 6 Edw. VI. c. 11. q Stat. Eliz. c. 11. 18 Eliz. c. 1, r Co. Litt. 31. s Litt. § 36. (10) Lord Coke informs us, that "if the wife be past the age "of nine years at the time of her husband's death, she shall be en"dowed, of what age foever her husband be, albeit he were but "four years old. Quia junior non poteft dotem promereri, et virum fuftincre." This we are told by that grave and reverend judge without any remark of furprize, or reprobation. But it confirms the obfervation of Montefquieu in the Spirit of Laws, b. 26. c. 3. "There has been (fays he) much talk of a law in England, which "permitted girls seven years old to chufe a husband. This law was fhocking two ways; it had no regard to the time when "nature gives maturity to the understanding; nor to the time when the gives maturity to the body." It is abundantly clear, both from our law and hiftory, that formerly fuch early marriages were contracted as in the prefent times are neither attempted nor thought of. This was probably owing to the right which the lord poffeffed of putting up to fale the marriage of his infant tenant. He, no doubt, took the first opportunity of proftituting the infant to his own interest, without any regard to age or inclinations. And thus what was fo frequently practifed and permitted by the law, would ceafe even in other inftances to be confidered with abhorrence. If the marriage of a female was delayed till fhe was fixteen, this benefit was entirely loft to the lord her guardian.. 2. WE are next to inquire, of what a wife may be endowed. And she is now by law entitled to be endowed of al lands and tenements, of which her husband was seised in feefimple or fee-tail at any time during the coverture; and of which any iffue, which fhe might have had, might by poffbility have been heir ". Therefore if a man, feised in feefimple, hath a fon by his first wife, and after marries a second wife, fhe fhall be endowed of his lands; for her iffue might by poffibility have been heir, on the death of the fon by the former wife. But, if there be a donee in fpecial tail, who holds lands to him and the heirs of his body begotten on Jane his wife; though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that fecond wife fhall never be endowed of the lands entailed; for no iffue, that fhe could have, could by any poffibility inherit them v. A feifin in law of the hufband will be as effectual as a seisin in deed, in order to render the wife dowable; for it is not in the wife's power to bring the husband's title to an actual feifin, as it is in the husband's power to do with regard to the wife's lands: which is one reason why he shall not be tenant by the curtefy, but of fuch lands whereof the wife, or he himself in her right, was actually seised in deed. The feifin of the husband, for a tranfitory instant only, when the fame act which gives him the estate conveys [132] it alfo out of him again, (as where by a fine, land is granted to a man, and he immediately renders it back by the fame fine) such a seifin will not entitle the wife to dower *: for * Cro. Jac. 615. 2 Rep. 67. Co. Litt. 31. u Litt. § 36. 53. ▾ Ibid. § 53. w Co. Litt. 31. Even the 18 Eliz. c. 7. which makes it a capital crime to abuse a confenting female child under the age of ten years, feems to leave an exception for these marriages, by declaring only the carnal and unlawful knowlege of fuch woman-child to be a felony. Hence the abolition of the feudal wardships and marriage at the reftoration may perhaps have contributed not lefs to the improvement of the morals than of the liberty of the people. Book II. the land was merely in tranfitu, and never rested in the hufband; the grant and render being one continued act. But, if the land abides in him for the interval of but a single mowent, it seems that the wife fhall be endowed thereof. And, in short, a widow may be endowed of all her husband's lands, tenements, and hereditaments, corporeal or incorporeal, under the restrictions before-mentioned; unless there be fome special reason to the contrary. Thus, a woman fhall not be endowed of a caftle, built for defence of the realm 2: nor of a common without ftint; for, as the heir would then have one portion of this common, and the widow another, and both without ftint, the common would be doubly stocked. Copyhold estates are also not liable to dower, being only estates at the lord's will; unless by the fpecial custom of the manor, in which cafe it is ufually called the widow's free-bench. But, where dower is allowable, it matters not though the husband aliene the lands during the coverture; for he alienes them liable to dower (11). 3. NEXT, as to the manner in which a woman is to be endowed. There are now fubfifting four fpecies of dower; the fifth, mentioned by Littleton, de la plus belle, having y This doctrine was extended very far by a jury in Wales, where the father and fon were both hanged in one cart, but the fon was fuppofed to have furvived the father, by appearing to struggle Jongeit; whereby he became feifed of an cftate in fee by furvivorship, in confe quence of which feifin his widow had a b 4 Rep. 22. e Co. Litt. 32. (11) It is now fettled, that, although the hufband may be tenant by the curtesy of a trust estate of inheritance, the wife is not entitled to dower out of fuch an estate. 3 P. Wms. 229. The reafon affigned why the wife has not dower out of a truft eftate is, that fhe was not endowed of a ufe at common law. And from analogy to trufts it has been determined, that a wife fhall not be endowed of an equity of redemption, where the estate was mortgaged in fee by the husband previous to the marriage. Bro. 326. been been abolished together with the military tenures, of which it was a confequence. 1. Dower by the common law; or that which is before defcribed. 2. Dower by particular cuftom; as that the wife fhould have half the husband's lands, or in fome places the whole, and in fome only a quarter. 3. Dower ad oftium ecclefiae: which is where tenant in feefimple of full age, openly at the church door, where all marriages were formerly celebrated, after affiance made and (fir Edward Coke in his tranflation of Littleton adds) troth plighted between them, doth endow his wife with the whole, or fuch quantity as he shall please, of his lands; at the fame time specifying and ascertaining the same; on which the wife, after her husband's death, may enter without farther ceremony. 4. Dower ex affenfu patris; which is only a species of dower ad oftium ecclefiae, made when the husband's father is alive, and the fon by his confent, exprefsly given, endows his wife with parcel of his father's lands. In either of these cafes, they muft (to prevent frauds) he made in facie ecclefiae et ad oftium ecclefiae; non enim valent facta in lecto mortali, nec in camera, aut alibi ubi clandeftina fuere conjugia. [ 133 ] It is curious to observe the feveral revolutions which the doctrine of dower has undergone, fince it's introduction into England. It seems first to have been of the nature of the dower in gavelkind, before-mentioned; viz. a moiety of the husband's lands, but forfeitable by incontinency or a fecond marriage. By the famous charter of Henry I, this condition, of widowhood and chastity, was only required in cafe the husband left any iffue: and afterwards we hear no more of it. Under Henry the fecond, according to Glanvil*, the dower ad oftium ecclefiae was the most usual species of dower; and here, as well as in Normandy', it was bind tem quidem habebit, dum corpus fuum le- kl. 6. c. 1. & 2. ing upon the wife, if by her confented to at the time of marriage. Neither, in thofe days of feodal rigor, was the hufband allowed to endow her ad oftium ecclefiae with more than the third part of the lands whereof he then was feised, though he might endow her with lefs; teft by fuch liberal endowments the lord fhould be defrauded of his wardships and other feodal profits ". But if no specific dotation was made [134]at the church porch, then she was endowed by the common law of the third part (which was called her dos rationabilis) of fuch lands and tenements, as the hufband was feised of at the time of the espousals, and no other; unless he specially engaged before the priest to endow her of his future acquifitions" and, if the husband had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dowero in lands which he afterwards acquired ". In king John's magna carta, and the first charter of Henry III, no mention is made of any alteration of the common law, in refpect of the lands fubject to dower: but in those of 1217, and 1224, it is particularly provided, that a widow fhall be entitled for her dower to the third part of all fuch lands as the husband had held in his life-time: yet, in cafe m Bract. 1. 2. c. 39. § 6. Da queftu fuo. (Glanv. ib. )-de terris acquiftis et acquirendis. (Bract. ib.} o Glanv. c. 2. P When special endowments were made ad oftium ecclefiae, the husband, after affiance made, and troth plighted, used to declare with what specific lands he meant to endow his wife, (quod dotat eam de tali manerio cum pertinentiis, &c. Bract. ibid.) and therefore in the old York ritual (Seld. Ux. Hebr. 1. 2. c. 27.) there is, at this part of the matrimonial fervice, the following rubric; "facerdos interroget dotem mulieris ; et fi "terra ei in dotem detur, tunc dicatur pfalmus ifte, &c." When the wife was endowed generally (ubi quis uxcrem fuam dotaverit in generali, de omnibus terris et tenementis; Bract. ibid.) the hufband feems to have faid, "with all my "lands and tenements I thee endow ;" and then they all became liable to her dower. When he endowed her with perfonalty only, he used to fay "with "all my wordly goods (or, as the Sa❝lisbury ritual has it, with all my "wordly chattel) I thee endow;" which intitled the wife to her thirds, or pars rationabilis, of his perfonal estate, which is provided for by magna carta, cap. 26. and will be farther treated of in the concluding chapter of this book; though the retaining this laft expreffion in our modern liturgy, if of any meaning at all, can now refer only to the right of maintenance, which the acquires during coverture, out of her husband's perfonalty. 9 A. D. 1216. c. 7. edit. Oxon. Afignetur autem ei pro dote fua tertia pars totius terrae mariti fui quae fua fuit in vita fua, nifi de minori dotata fuerit ad oftium ecclefiae. c. 7. (Ibid.) of |