IV. Women and the Law; Rules of Law

IV.A. Women and the Law: Dower

We have already mentioned women in several contexts above. It happens that the examination of what women can or cannot do is an excellent index for evaluating late twelfth century law as such. For dower, think about the appropriateness of the various jurisdictions and the demands of loyalty.

Glanvill 6.1. In common English law usage [dower] means that which a free man gives to his wife at the church door at the time of his marriage. For every man is bound both by ecclesiastical and by secular law to endow his wife at the time of his marriage. When a man endows his wife either he nominates certain property as dower or he does not. If he does not nominate dower, then one third of the whole of his free tenement is deemed to be her dower, and the reasonable dower of any woman is one third of the whole of the free tenement of which her husband was seised in demesne at the time of the marriage. If, however, the husband nominates dower and it amounts to more than one third, it cannot stand at such a level, but will be measured up to one third; for a man can give less but not more than one third of his tenement in dower.

Why? If a man promised his wife more than a third of his land in case she survived him, he would be endangering the heir's ability to perform the services due from the land.

6.2. It sometimes happens that a husband who has a little land can increase the dower by adding one third or less of his later acquisitions. However, if nothing was said about acquisitions when the dower was originally assigned, then, even if the husband had little land at the time of the marriage and afterwards acquired much land, no more can be claimed in dower than one third of the land which he had at the time of the marriage. I state the same rule when a man who has no land endows his wife with money or other chattels and afterwards acquires many lands and tenements, for nothing can in future lawfully be claimed as dower from these acquisitions. For it is generally true that however much dower and of whatever kind is assigned to a woman, if she consents to this assignment of dower at the church door, she cannot in future lawfully claim any more as dower.

6.3. It should be known that a woman cannot alienate any of her dower during the life of her husband. For since legally a woman is completely in the power of her husband, it is not surprising that her dower and all her other property are clearly deemed to be at his disposal. Therefore any married man may give or sell or alienate in whatever way he pleases his wife's dower during her life, and his wife is bound to consent to this as to all other acts of his which do not offend against God. Indeed, to such an extent is a woman bound to obey her husband that if he wishes to sell her dower and she opposes him, and afterwards the dower is in fact sold and purchased, she cannot when her husband is dead claim the dower from the purchaser if she confesses, or it is proved against her, in court that it was sold by her husband against her will.

1. What sense does this make? Does this not say that the woman will get her dower if she submits to the husband in selling the very land that she will be claiming as her dower? That is, if she gives her consent, she can get that land back from the purchaser. But if she objects to the sale, she cannot have it back. Does this not look like rewarding deception of the purchaser? (see Glanvill 6.13 below) The fundamental matter here, however, is exactly analogous to the homage relationship between lord and man: she should not oppose him; opposition to him dishonors him and forfeits her claim.

2. What does this say about the relationship between husband and wife?

[Traditionally, the marriage relationship was viewed solely in the terms of church doctrine (then already in currency) that husband and wife were "one flesh", although it was admitted that the male was completely dominant. No assumption was made about power relationships in society tending to be exercised in similar fashion, so no attention was given to the possibility of a particular "feudal family" form demanding wifely loyalty and subordination in a fashion analogous to lord/man relationships.]

3. There are three dower writs, and the multiplicity raises questions.

For each of the following writs retailed in Glanvill, determine first the venue, and then explain why that is the appropriate venue.

6.4. When a woman's husband dies and dower has been nominated, either it lies vacant or it does not. If it is vacant, the woman may enter on the dower and remain in seisin with the consent of the heir. If, however, it is not vacant, then either none is vacant, or else some part is vacant and some is not; in the latter case she may enter on the vacant part in the manner stated above, and in respect of the rest she shall have a writ of right to her warrantor, directing him to hold full right to her concerning certain land which she claims as belonging to her reasonable dower. The writ will be as follows:

The writ of right for land belonging to dower [for when the widow has some of her dower already]

6.5. The king to W.,[83] greeting. I command you to hold full right without delay to M. the widow of Robert, in respect of one hide of land in such-and-such a vill, which she claims as belonging to the reasonable dower which she holds of you in that vill by the free service of ten shillings a year for all service, and which N. is withholding from her. If you do not do it, the sheriff will, that she need no longer complain for default of right in this matter. Witness etc.

. . .

6.14. When no part of a woman's dower is vacant, so that she has none of it, then the plea is dealt with from the beginning in the lord king's court, and he who is holding the dower shall be summoned by the following writ.[84]

The writ for making a summons for dower where none is yet had

6.15. The king to the sheriff,[85] greeting. Command [Precipe] N. justly and without delay to cause M. who was the wife of R. to have her reasonable dower in such-and-such a vill, which she claims to have as the gift of the said R. her husband and of which she has none, as she says, and which she alleges he is unjustly withholding from her. If he will not do this, summon him by good summoners to be before me or my justices on a certain day, to show why he has not done it. And have there the summoners and this writ. Witness etc.

. . .

If a woman has more as dower than properly belongs to her, the sheriff shall be commanded by the following writ to have it measured:

The writ for measuring dower

6.18. The king to the sheriff,[86] greeting. B. has complained to me that M. his mother has more of his inheritance as dower than she ought to have and pertains to her to have as reasonable dower.[87] Therefore I command you justly and without delay to have it measured, and justly and without delay to cause the said M. to have what she ought to have and belongs to her as her reasonable dower; that he need no longer complain for default of justice in this matter. Witness etc.

1. The text of 6.4 above mentions the doweress's warrantor. Who is he?

2. Is there a different tenurial situation in these writs? The writ in 6.15 is for a decisively different tenurial situation than 6.5 and 6.18. But if 6.5 and 6.18 are similar tenurially, why are they in different courts? And why is a writ necessary in 6.18? What policy (for there is one) is evidenced in 6.18 both in requiring the writ and in mandating that venue?

6.13. It should be known, moreover, that if any woman's husband sells his wife's dower to another after he has endowed her with it, his heir must, if he can, deliver that dower to the woman, and must give to the purchaser reasonable lands in exchange [escambium] for what was sold or given by his ancestor; if he cannot deliver to the woman, he must give her reasonable lands in exchange.

1. In what situations will the heir be the warrantor; in what situations will the decedent's lord be warrantor?

2. Who is the purchaser's warrantor (assuming subinfeudation)? If the doweress claimant in the king's court vouches to warranty and the purchaser likewise does, does that produce the triangular situation that one envisages in a writ of right in feudal court, with both tenant and claimant claiming to hold of the same person for the same land: that is, is this really a "vertical" plea and not a "horizontal" one?

IV.B. Rules of Law, Part One

Let's distinguish four types of determinations. A random determination would be one completely without explanation. An arbitrary determination would be one based on a completely inappropriate factor (in an ordinary buying and selling situation, deciding on the basis of the plaintiff's hair color). A discretionary determination would be one in which all relevant factors are weighed to arrive at a "just" decision: pure balancing. A determination by rules of law does not aim at a just, or moral, decision in this case, but on adherence to rules; by their nature, rules of law are related to justice and in the broad view yield justice most of the time, but on the margins will yield injustice. A rule about recording title, for instance, is good for society, but will result in regrettable consequences for certain people. Rules of law, then, will result in anomalies: consequences that no one would want.

Marriage Portions

7.1. . . . Every free man who has land can give a certain part of his land with his daughter, or with any other woman, as a marriage-portion, whether he has an heir or not, and whether the heir if has one or not is willing or not, and even if he is opposed to it and protests. For he can give a certain part of his free tenement to whom he pleases in recompense for his service, or to a religious place as alms. If seisin follows the gift, the land will remain for ever with the donee and his heirs, if it was given to them heritably; however, if no seisin follows such a gift, then after the donor's death nothing can be claimed in reliance on such a gift against the will of the heir, because, according to the interpretation customary in the realm it is deemed to be a naked promise rather than a true gift.

Now although generally it is thus that any person is allowed to give freely in his lifetime a reasonable part of his land to whom he pleases, this has not hitherto been extended to those about to die, because there might be an extravagant distribution of the inheritance if it were permitted to one who loses both memory and reason in the turmoil of his present suffering, a common enough happening. Therefore if anyone mortally sick begins to distribute his land, which he had not in the least wished to do while he was well, this would be presumed to result rather from turmoil of the spirit than from deliberation of the mind. However, a gift of this kind made to another in a last will can hold good if made and confirmed with the heir's consent.[88]

When anyone gives part of his land as a marriage portion or in some other way, either he has only inherited land or only acquired land or both inherited and acquired land.[89] If he has only inherited land, he can, as has been said, give a certain part of that inheritance to any stranger he chooses. However, if he has several legitimate sons, he can hardly give any part of the inheritance to a younger son without the heir's consent; for, if this were allowed, the disinheritance of eldest sons would often occur, because of the greater affection which fathers tend to have for younger sons. Can a man who has a son and heir give part of his inheritance to his bastard son? If he can, then the bastard son will be better off in this matter than the legitimate sons; notwithstanding this, he can do so.

1. What is the role of the heir? Is this a rule of conveyancing, or by approving does the heir makes the grant his own, so that he is responsible for it? Obviously the latter.

[Traditionally, the heir's right to assent was conceived as a conveyancing rule solely, to protect the heir's right. The granting form "to x and his heirs" was thought actually to convey a right also to the heir, so that, instead of a promise made to a dead man, the heir even during the life of his father had a future interest in the land protected by the need to get his assent to certain conveyances.]

2. I put the following question. Father gives inherited land to his third son, who does homage. First son consents. First son dies; father dies. Is second son, now heir, obligated to respect the grant? He never consented. We do not know the answer to this question. In social fact, one suspects it would be normally prudent for him to do so, but not necessary. Would this encourage people to get the approval of all possible heirs; historians have been surprised about the long listing of relatives who approve grants. Are you surprised? Would you be surprised if the land was held as property?

3. Once again, why is it that the law treats bastards and daughters better than younger sons? And why can one give to strangers more easily than to younger sons? The answer is far from exhausted by the favoritism for younger sons: think about the central acts of feudal tenures. The whole ethos of feudal tenures assumed and required the ability to subinfeudate to strangers to secure knight service.

Now, because of the generosity which fathers often display to their sons or to others in making gifts of this kind, certain legal problems frequently arise. Suppose that a knight or any other free man has four or more legitimate sons all born of the same mother, and gives heritably to one of them -- for example, his second-born son -- a reasonable part of his inherited land with the consent of the heir (to avoid argument on this part); this second son gets seisin of the land, takes the fruits and profits during his life, and, while seised in this way, dies leaving his father and all his brothers still living; an important legal problem and discussion among those learned in the law of the realm sometimes arises, or may arise, from this case in the lord king's court, namely who can and ought by law to succeed the second son?

The dead man's father seeks to keep his son's seisin for himself, claiming that the land which was given by his gift should revert to him. When a dispute arises about this in court, the eldest son will answer his father, who is claiming the right in that land, by saying that his father ought not to be heard, because generally it is true according to the law of the realm that no man can be both heir and lord of the same tenement.[90] Yet, by the same reasoning, the middle son seeks to repel the eldest son from the succession, for, since the eldest is now heir to the whole inheritance, he cannot be both lord of that part of the inheritance and heir; moreover, if the father were already dead, the eldest son would be lord of the whole inheritance and then that land could not lawfully remain with him for the reason given above; if, then, he cannot keep it permanently, how can he claim it by hereditary right? By the same reasoning it seems that the youngest son can exclude all the others.

A similar problem arises when anyone grants and gives a part of his land heritably to his younger brother who dies without any heir of his body; the brother of the dead man takes the land into his own hand as being vacant and belonging to his fee; and his own two sons seek an assize against him on the death of their uncle. When the case is heard the elder son can plead against the father, and the younger son against his elder brother, in the manner set out above. It should be known, however, that by the law of the realm the father can in no way keep that land, because he cannot be both heir and lord; nor does land given to anyone lawfully revert to the donor if homage has followed the gift and if the donee of the gift has an heir, whether born of his body or even more remote; moreover, land given in the way stated naturally descends heritably to the heirs as does any inheritance, and never normally ascends. This, then, settles the plea as between the father and the elder son; but as between the elder and the younger son, it proceeds in the manner set out above.

In this last case, however, it is sometimes decided in the court of the lord king by the equitable discretion of the court that the land given in this way should remain to the elder son, especially if he has no other fee, until the inheritance is delivered to him, because until then, since he is not lord of the paternal inheritance, he is not caught by this which is said: that no man can be both heir and lord. Yet since by succeeding to the land he becomes lord of that part of the inheritance, is he not also deemed to be heir of that part since he is heir of the whole inheritance? To this we reply that it is still uncertain and in doubt whether the elder son is heir or not. If the elder son predeceases his father, then it is clear that he was not the future heir of his father, and that therefore the two rights of inheritance and lordship never co-existed in him.

. . .

7.2. The heirs of donors are bound to warrant to the donees and their heirs reasonable gifts and the things given thereby.

1. You can see how the application of this law could make a grant originally made to promote a second son, on his death and the death of the father, make the land leave the nuclear family completely in favor of a cousin, a result none of the parties (except the cousin) would have wanted. Is this related to the Assize of Northampton c. 4? Can you see how securing the inheritance of the heir requires binding the lord's heir also to the heir of the tenant, so that that would be equivalent to saying that the relationship would not be allowed to perish. The situation had not proceeded so far yet. Still, mort d'ancestor dictated that the heir of one who had done homage would receive protection from lord or lord's heir without having given homage himself. Is the lord and heir statement a rule of law? If it is a rule of law, what does this say about law as such in 1188? Rules of law are applied without regard to fairness in the individual case and thus require a certain bureaucratic mentality. The appearance of rules of law means that English law is no longer competely discretionary, that it no longer is congruent with social mores.

2. In regard to 7.2, what are reasonable gifts? Certainly a father's grant, taking homage, to a second son without the eldest son's assent was intrinsically unreasonable and could be revoked. Worse still, in all that discussion, why are there limits on what grantors can give? Who enforces? The lord's interest is still paramount and enforced with the disciplinary jurisdiction in his court. What consequences on the lord/man relationship if the tenant alienates so much of his tenement that the services are endangered? The tenant, as well as the recipient of the unreasonable grant, could lose the whole of the fee. What about a son who succeeds to a tenement after his father has alienated too much? Is be bound? Who would bind him? What is the role of the feudal court? What about the assize of novel disseisin? It would seem that if all the statements in Glanvill are true at this time, the lord's heir could still revoke an unreasonable grant without worrying about royal intervention. More likely, the standard writ of the assize of novel disseisin had only just begun and would rapidly eliminate that lordly power. Surely, we only see remnants of the discretion implied in the reasonability standard in the warranty obligation. By the time of the first plea rolls, in 1194, the warranty obligation seems not reasonable but rigid, although a few cases have people protesting.

[Traditionally, the lapse of the reasonability standard was seen as only a legal change that was one part of a supposed bias on the part of the justices in favor of freedom of alienation.]

IV.C. Rules of Law: Part Two

12.2. When anyone claims any free tenement or service to be held from another by free service, he will not be able to draw the tenant into the plea without a writ from the lord king or his justice.[91] Therefore he shall have a writ of right, directed to the lord of whom he claims to hold. . .

12.8. The writ [of right] must be directed to him of whom the demandant claims to hold, not to anyone else, not even to the chief lord. . .

12.23. I omit discussion of the manner and legal process of trying or determining in different county courts the foregoing pleas or others, partly because of the different customs observed from county to county, and partly because the brevity of my plan does not require it, for I am considering only the custom and law of the chief court of the lord king.

. . .

It should be known, moreover, that according to the custom of the realm, no one is bound to answer concerning any free tenement of his in the court of his lord, unless there is a writ from the lord king or his chief justice.[92] I assume here that the fee claimed is lay fee; . . . .

1. There are two rules asserted in this passage. Can you distinguish between them in terms of quality? One is merely scribal, although it embodies social substance. The rule that the writ of right must always be directed to the lord of whom claimant claims to hold is absolutely rigid and causes anomalies; moreover, it embodies the contractual nature of the writ: "hold full right," which could not be addressed to the lord on behalf of himself ("Lord, hold full right to yourself"?) This could be a rule of law. The writ rule looks even more like a rule of law. It talked, as a rule and not by its origin in a social statement about the lord's obligation to his tenant vis-a-vis outsiders, about tenant protection.

2. Can you see any social basis to the writ rule? Was the king here trying to license all pleas, that is, requiring people to purchase writs before allowing property cases to go forward? If there were no king's court, what chance would an outside claimant have against a tenant who had already been accepted by the lord? Would the tenant have to answer for his free tenement unless some additional outside force compelled the lord? Certainly not, if the lord stood by his obligation in protecting the tenant in the land granted him at the time he had received the tenant's homage. Is the writ an outside force? Is this related to the Treaty of Winchester of 1153? The king's intervention in a standard way with writs of right in a certain category of situations began at that point, and at that point the insertion of "without a royal writ" would make sense. What if the lord wanted to proceed against his own man? Would that be within the ambit of social custom? -- only for disciplinary reasons. Even at this time it was still possible to do that without a royal writ: that was not considered answering for his free tenement. The rule at this point limited only the proprietary jurisdictiona nd proprietary questions, not the disciplinary jurisdiction and disciplinary questions. What would happen, though, if this statement became a rule applied blindly in protection of the tenant, and not just a statement of ordinary fact: might the lord then have to have a writ to discipline his tenant? Is there any relationship between this question, even in its proprietary application, and the venue for admeasurement of dower? (above, the writ in Glanvill 6.18.)

4. What is happening to the law? Compare the nature of the law you saw in the first assignment, with what you see happening here. But: is this kind of law far removed from social patterns? Is it yet the kind of law you are used to? Note: these two rules of law (or things close to rules of law) are still unique, not examples of a frequent phenomenon in 1188, and they lie close to the heart of the two major political events that we have marked as essential in the origins of the law: the Treaty of Winchester and the Assize of Northampton.

IV.D. Miscellany

Note that Glanvill has numerous other standard writs, enough to boggle the mind of a beginner. The ones you must know and understand are the ones we have discussed; do not assume, however, without looking that other writs are not as old as Glanvill. The law came to be arranged, and the author of Glanvill was coming to see the law relating to land as arranged in a proprietary/possessory hierarchy,[93] that is, those actions that determined ultimate right or property, and those which merely yielded possession. Traditionally[94] historians have distinguished the grand assize as a proprietary remedy, and have set it off against what they called the "petty assizes." Of these, we have discussed mort d'ancestor and novel disseisin. There are two other "petty assizes" normally cited.

The writ utrum[95] (meaning "whether")

13.24. The king to the sheriff, greeting. Summon by good summoners twelve free and lawful men from the neighbourhood of such-and-such a vill to be before me or my justices on a certain day, ready to declare on oath whether one hide of land, which N. parson of the church in that vill claims as free alms of his church against R. in that vill, is the lay fee of R. or ecclesiastical fee. And meanwhile let them view the land; and you are to see that their names are endorsed on this writ. And summon by good summoners R., who holds the land, to be there then to hear the recognition. And have there the summoners and this writ. Witness etc.

1. Note that this writ was provided in 1164, the first of the recognitions, as part of the deal cut with Becket at the Constitutions of Clarendon.

2. What does this writ do?

The writ of darrein presentment

13.19. The king to the sheriff, greeting. Summon by good summoners twelve free and lawful men from the neighbourhood of such-and-such a vill to be before me or my justices on a certain day, ready to declare on oath which patron presented the last parson who is now dead to the church in that vill, which is alleged to be vacant and of which N. claims the advowson. And you are to see that their names are endorsed on this writ. And summon by good summoners R., who withholds the presentation, to be there then to hear the recognition. And have there the summoners and this writ. Witness etc.

1. An advowson is the right to nominate to the bishop or other empowered ecclesiastical official the person who will be appointed to an income-producing ecclesiastical post, such as the parish priest of the church on the manor. It was a valuable right, both for continuing local control and for providing for relatives or adherents.

2. This writ seems to have been provided in 1179, at the same time as the grand assize. The church had just legislated that any church that had remained vacant for 6 months could simply be filled by the bishop at his discretion without any nomination. There was thus no time for litigation; some interim determination had to be made. Darrein presentment was fast enough and determined that he who had presented last (nominated last) would nominate now, without prejudicing who would nominate rightfully in the future. It could obviously be barred by a court judgment in the right.

3. This is probably the origin to the possessory/proprietary distinction that later seems to inform the whole law relating to property.

4. Note that advowsons are incorporeal hereditaments, for those thrilled by such things. Incorporeal hereditaments are no less easy to protect than land interests.

[83] Since this is not addressed to the sheriff, you can quickly ascertain that it is addressed to the lord from whom the widow claims to hold her dower, that is, her son or son-in-law. Of course, if the heir is a minor, this will effectively put the case before her husband's lord who would manage all matters pertaining to his ward. The venue for this case is thus a feudal court, and appropriately so, since the woman already has some of her dower and is thus acknowledged as an appropriate holder as the acknowledged legitimate widow of the dead tenant.

[84] When a widow has none of her dower, then it is likely that the heir or his guardian is challenging her right as widow: that she was not married to the late tenant or that she was living in adultery when he died and thus forfeited her claims to dower or that she had opposed his grant of her dower land and thus forfeited her claim (as mentioned in Glanvill above). In the simple cases, however, this would require resort to the ecclesiastical authorities, who had different ideas of marriage (the king's court required a marriage in church; ecclesiastical law [perhaps perplexinly to a modern] would treat a marriage by words of present consent as binding and valid). The king's court thus wanted to control this matter. The dower writs probably began as standardized remedies with the Assize of Northampton.

[85] This writ is addressed to the sheriff; the whole of the writ indicates that it is returnable into the king's court. This original writ is thus returnable and initiates a case in the king's court.

[86] This writ is directed to the sheriff, but it is clear from the writ that the sheriff himself is supposed to take care of the matter, and in the county court over which he presides. County courts remain communal courts. This original writ is not returnable. As a writ that begins a case in county court, it is called a viscontiel writ.

[87] How would a widow have more dower than she ought? The most likely way is that the guardian of the heir had allocated to her too much. The heir, now of age, disagrees and wants to measure the dower down to appropriate level. It is entirely appropriate that he be allowed to do so. He as lord could still initiate disciplinary actions in his own court, but this widow has done nothing wrong: he is not disputing her right as widow to dower as such. His suit is thus proprietary, not disciplinary. Like any other proprietary suit this will require a royal writ. Royal writs never brought the case into the court in which the plaintiff presided as feudal lord (writs of right were always addressed to the lord of whom the claimant claimed to hold). Since the remedy contemplated here, however, involved eventually measuring off a third of the land in value, the jurisdiction went to county court.

[88] This makes the most sense when one realizes that Glanvill speaks on the assumption that grants are made by subinfeudation. In that context, when the heir consents to his father's grant, he makes it his own and enters into the relationship with the grantee. It is not then a grant by one in great distraction.

[89] A tenant apparently has greater leeway in granted away acquired land than inherited land to a second son. Why should this be? Why should lords have allowed it? Acquired land would often have been acquired from a different lord than the lord of the inherited land, so that the tenant would have complicated homage obligations. Much better for the lords if those convergences get separated, so that each son has but one lord. The process suspected here is a grant by substitution by the process of surrender and regrant.

[90] No man can be both lord and heir of the same tenement. The way in which the courts actually handled this to mean, no man can be both lord and heir of the same tenement at the same time. Thus the eldest son can be heir to the second son, because he is not yet the lord as long as his father is alive. When the second son become heir to the lordship of his father and thus lord as his father had been, then he would be heir to the tenement from his brother and heir to the lordship from his father. The lordship will push the tenement away from him, so that he will become lord to his next younger brother, who will be tenant of the land. This musical chairs will continue (as long as none of them have children) until the fourth son inherits the lordship and the land itself will pass to an uncle or cousin. The key here is that the eldest son cannot be heir to the lordship until his father dies (in strict construction, no living person can have an heir, because an heir becomes an heir only at the death of a person). If he dies before his father, it is clear that he was not heir to the lordship, because he never inherited.

[91] This is the first statement in Glanvill of the writ rule, that otherwise came into legal maxims as "No man need answer for his free tenement without a royal writ" (that is, unless the challenger has a royal writ that would make him answer.)

[92] "Chief justice" here refers to the justiciar, the king's alter ego who controlled the government when the king was abroad outside of England. This does not mean that the king's court could issue original writs.

[93] Do not confuse this hierarchy of questions in the king's court with the division of the lord's jurisdiction into proprietary and disciplinary questions.

[94] Certainly the proprietary/possessory division becomes true rapidly and might well be true in 1188, but the question we have been putting is whether the remedies were designed in that way.

[95] Utrum was provided in 1164 and was thus the first standard remedy to utilize a sworn panel to determine questions of fact. That utrum was provided as a standard remedy seemingly 12 years prior to 1176 is not a problem for the overall perception here, because utrum did not have the institutional and conceptual consequences of mort d'ancestor.