[194] This is put as a question in the printed text, although the Cottonian and Dr. Milles’s MSS. assert it absolutely, that the wife cannot claim any more in Dower than that of which she has been so endowed. That the printed text is correct seems probable: for we can scarcely suppose the doctrine in question was settled when that contained in the next following passage was unsettled.
[195] The Regiam Majestatem lays it down, that the Father of the Husband shall be compelled to warrant the same to her. (L. 2. c. 16.) Vide Co. Litt. 35. a.
[196] Vide F.N.B. 331.
[197] Maritagium. This Term is explained by our Author more fully in the [18th chapter of the present Book]. Lord Coke translates the word, marriage: but, to avoid a confusion of ideas, I have rendered it, marriage-hood. The term maritagium appears to have been employed by our ancient writers in three senses. 1. To designate marriage, in the modern sense of the Term. 2. To import Land given with a Woman in marriage; such maritagium being either liberum, or servitio obnoxium, as we shall presently see. 3. To mean the right which a Lord had of disposing of his ward in marriage. (Bracton 21. a. Spelm. Gloss. ad voc. 2 Bl. Comm. 69. Co. Litt. 21. b. 76. a. and Mag. Car. c. 7.)
[198] The Assises of Jerusalem permitted a Fief to be dismembered, if it consisted of more Knight’s Fees than one, but not otherwise. (c. 265.)
[199] Poterit etiam Donatio in liberam eleemosinam, sicut, ecclesiis, cathedralibus, conventualibus, parochialibus, viris religiosis. (Vide Bracton 27. b.) “Originally when Lands were given to the church, they were burdened with military service; this service the Bishop or Abbot performed in some ages by himself, and in others by a delegate: but, when the necessity for it became less, people, in giving Lands to the church, exacted no other return than Prayers and such religious Exercises.” (Dalrymple’s Essay on Feuds, p. 30.)
[200] It does not appear from Glanville what was considered as this reasonable part. In speaking of the Constitutions of the ancient kings, the Mirror tells us, that “none might alien but the fourth part of his Inheritance, without the consent of his Heirs.” (c. 1. s. 3.) Whether this removes the difficulty, is for the Reader to decide. The 32nd chapter of Mag. Car. intended to provide a remedy for the abuse of the indulgence stated in the text—which was again affected by the Statute of quia Emptores. The modern French code restrains a gift to the moiety of a man’s property, if he leaves one child—to a third of it, if he leaves two—and to a fourth if he leaves three children. Nor does it seem that a man is free from restraint, though he have no child, provided he has Relatives, either Ascendants or Descendants. But, in default of all these, the restraint ceases, and a man may dispose of the whole of his property. (Code Napoleon, s. 913. 914. 915.)
[201] “And some have questioned,” says Justice Blackstone, “whether this restraint, which we may trace even from the ancient Germans, was not founded upon truer principles of policy, than the power of wantonly disinheriting the Heir by will, and transferring the Estate, through the dotage or caprice of the Ancestor, from those of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and prevented one man growing too big or powerful for his neighbours.” (2 Bl. Comm. 373.)
[202] A liberty that he was not indulged in by the Laws of Alfred, unless under particular circumstances: (LL. Alfred, c. 37.) nor by the Laws of Henry the 1st was this indulgence conceded a Man. Si Bockland habeat, quam ei parentes dederint, non mittat eam extra cognationem suam. (LL. Hen. 1. cap. 70.)
[203] Filios mulieratos. “When a Man has a Bastard Son, and afterwards marries the Mother, and by her has a legitimate Son, such latter Son, in the language of the Law, is called a mulier, or, as Glanville expresses it in his Latin, filius mulieratus.” (2 Bl. Comm. 247.) With this interpretation Skene agrees. (Reg. Maj. L. 2. c. 19.)