SECT. I.

ALl Law , saith Iustinian in his Imperiall institutions , belongeth to persons , to things , or to actions : which division I acknowledge to bee good : and so in his method of the Civil Law , doth a Doctor and very learned man , Conradus Lagus , yet the same Lagus saith , it is too strait for his purpose , and therefore not féeling himselfe at ease in so narrow a distribution , to drive the formes of Civill Law to certaine heads , according to their materiall varieties , hée confesseth hée i● compelled to constitute a pluralitie of Law members more then the very Law setteth down as appeareth in the 2. Part of his Method the 2. Chapter , yet a curious Caviler ( I perceive ) might find in Iustinians partition a very great red●●dance rather then any defect , for Res is a transcendente , comprehending actions , persons , and what not . And actions in the widest signification séeme alone to bée the theame and right subject matter of Lawes and all Humane Constitutions : as for persons they are so many , and so differing , that I thinke there is no use , Custome , Injunction or decrée , but it appertaineth to some person , and that in some peculiarity of difference , either in state , age , sex , function , profession , merit , or some other like severall regard , so that in mine opinion , Law might bée dispersed into apt titles of this personall difference , in such sort as both Students , might come to the easier knowledge : the one of their learning generall , and the other of their particular duty . I though I bée farre unable to produce a perfect method of the Lawes of England , as Lagus following his owne artificial project hath framed an excellent Deliniation of the Lawes of Rome , and though I bée unworthy to have the Marshalling of the titles of Lawe to bring all matter cohering under them , yet I will make a little assay what I am able to doe if I were put to it in a popular kind of instruction : following a frame by distinction of persons , chasing the primary distribution of them made before the World was seven daies old , Masculum & Foeminam fecit eo● , of which division because the part that wée say hath least judgement and discretion to bée a Law unto it selfe , ( Women onely ▪ Women ) they have nothing to do in constituting Lawes , or consenting to them , in interpreting of Lawes , or in hearing them interpreted at lectures , leets or charges , and yet they stand strictly tyed to mens establishments ; little or nothing excused by ignorance , mée thinkes it were pitty and impiety any longer to hold from them such Customes , Lawes , and Statutes , as are in a maner , proper , or principally belonging unto them : Laying aside therefore these titles which include onely the masculine , as Bishop , Abbot , Prior , Monke , Deane and Chapter , Viscount , Coroner , together with those which bée common to both kinds , as Hereticke , Traitour , Homicide , Felon , Laron , Paricide , Cutpurse , Rogue , with Feoffor , Feoffée , Donor , Donée , Vendor , Vendée , Recognisor , Recognisée , &c. I will in this Treaty with as little tediousnesse as I can , handle that part of the English Lawe , which containeth the immunities , advantages , interests , and duties of women , not regarding so much to satisfie the déep learned or searchers for subtility , as woman kind , to whom I am a thankfull debter by nature .

SECT. II. The Creation of Man and Woman .

GOd the first day when hée created the World made the matter of it , separating light from darkenesse : the second day hée placed the Firmament which hée called Heaven , betwixt the waters above the Firmament and the waters under the Firmament : the third day hée segregated the waters under the Firmament into one place , calling the waters Seas , and the dry land Earth , which hée commanded to bring forth ●ructifying herbes , plants and trees : the fourth day hée made the Sun , the Moone and the Stares in the Firmament , to bée for Signes , Seasons , Daies and Yeres , and to give light upon the earth : the fift day he made by his Word the Fishes of the Sea , Whales and every fethered foule of the ayre , commanding them to increase : the sixt day he made Cattle , créeping things , the beasts of the Earth : and now having made all things that should be néedfull for them , hée created Man , Male and Female made he them , Bidding them multiply and replenish the Earth , & take the joynt soveraigntie over the Fishes of the Sea , the Foules of the Ayre , and over all Beasts moving upon the Earth , Genesis 1.

In the second Chapter Moses declareth and expresseth the Creation of Women , which word in good sense , signifieth not the woe of Man as some affirme , but with Man : For so in our hasty pronouncing wée turne the preposition with to woe , or wée , oftentimes : and so shée was ordained to bée with man as a helpe , & a companion , because God saw it was not good that Man should bée alone . Then when God brought Woman to Man to bée named by him , hée found straight way that shée was bone of his bones , flesh of his flesh , giving her a name , testifying shée was taken out of Man , and he pronounced that for her sake man should leave Father and Mother and adhere to his Wife which should be with him one .

Now Man and Woman are one .

NOw because Adam hath so pronounced that man and wife shall be but one flesh , and our Law is that if a feofment bée made joyntly to Iohn at Stile and to Thom. Noke ▪ and his wife , of thrée acres of land , that Tho ▪ and his wife get no more but one acre and a halfe , quia una persona , and a writ of conspiracy doth not lye against one onely , and that is the reason , Nat. br. ●o. 116. a writ of conspiracy doth not lie against baron & feme , for they are but one person , & by this a married Woman perhaps may either doubt whether shée bée either none or no more then halfe a person . But let her bée of good cheare , though for the néere conjunction which is betwéene man and wife , and to tye them to a perfect love , agreement and adherence , they bée by intent and wise fiction of Law , one person , yet in nature & in some other cases by the Law of God and man , they remaine divers , for as Adams punishment was severall from Eves , so in criminall and other speciall causes our Law argues them severall persons , you shall finde that persona is an Individuum spoken of any thing which hath reason , and therefore of nothing but Vel de Angelo , vel de homme , fol. 154. in Dyer , who citeth no worse authority for it then Callepinus owne selfe , séeing therefore I list not to doubt with Plato , whether Women bée reasonable or unreasonable creatures , I may not doubt but every woman is a temporall person , though no woman can be a spirituall Vicar .

Of Hermaphrodites .

OF Hermaphrodites I have some kind of doubts , not whether they bée persons , but what persons they bée , If a man die seised , leaving 3. children which bee all Hermaphrodites , whether the eldest shall have all his land , or that it bée partable as among coheires . Also if the eldest bée a Hermaphrodite , and the other 2. faire young Virgins which way jetteth the discent . Bracton in his first Booke , Cap. 7. saith , Hermaphroditus comparatur masculo tantum , vel feminae tantum , secundum praevalescentiam sexus i●calescentis , that is , it must bée déemed male or female , according to the predominance of the sex most inciting .

And as I remember I have read the like division , V● . Britt . Cont. sol. 1678. Bracton in his first book the 30. Chapter fol. 438. where hee sheweth that a man shall not be tenant by the courtisie Si partus declinaverit ad monstrum , & cum clamore emitteret deberet , emisit rugitum , saith , it is not partus monstrosus , licet natura membra m●nuerit , vel ampliaverit , ut si quis habeat digitos , aut articulos sex vel plures . Now then if these creatures bee no Monsters , but are in conjunction to take on them the kind which is most ruling in them , this must néeds be understood in matrimony , and consequently they may have heires , which being granted , why may they not be heires according to the prevalescence which Bracton speaketh of : if I were to furnish my selfe a house , I would place no picture or Image in any parlour , dining or bed-chamber , but it should be of good séemely and natural proportion , Satyres and Centaures should come no nearer then the post at my doore . And at the threshold of this my treatise , or as it were a little behind the doore : I will leave these deformed Children of Mercury , or Venus , suffering them to enter no further .

SECT. III. The punishment of Adams sinne .

REturne a little to Genesis , in the 3. Chap. whereof is declared our first parents transgression in eating the forbidden fruit : for which Adam , Eve , the serpent first , and lastly , the earth it selfe is cursed : and besides , the participation of Adams punishment , which was subjection to mortality , exiled from the garden of Eden , injoyned to labor , Eve because shée had helped to seduce her husband hath inflicted on her , an especiall bane . In sorrow shalt thou bring forth thy children , thy desires shall bee subject to thy husband , and he shall rule over thee .

Sée here the reason of that which I touched before , that Women have no voyse in Parliament , They make no Lawes , they consent to none , they abrogate none . All of them are understood either married or to bée married and their desires or subject to their husband , I know no remedy though some women can shift it well enough . The common Law here shaketh hand with Divinitie , but because I am come too soone to the title of Baron and feme , and Adam and Eve were the first and last that were maried so young , it is best that I runne backe againe to consider of the things ( which I might seeme to have lost by the way ) that are fit to be knowne concerning women before they be fit for marriage .

SECT. IV. The Ages of a Woman .

THe learning is 35. Hen. 6. fol. 40. that a Woman hath divers speciall ages , at the 7. yeare of her age , her father shall have aide of his tenants to marry her . At 9. yeares age , shee is able to deserve and have dowre . At 12. yeares to consent to marriage . At 14. to bee hors du guard : at 16. to be past the Lords tender of a husband . At 21. to be able to make a feoffement : And per Ingelton there in the end of the case , a woman married at 12. cannot disagrée afterward , but if she be married younger , shee may dissent till shee be 14.

The age of 7. yeares , when Bracton wrote this aide , for making the sonne a Knight , or marrying the daughter , was due de gratia & non de Iure , and pro necessitate & indigentia domini capitalis : measured by the indigence of the Lord , and opulence of the tenants : But West . 1. Cap. 35. in the third yeare of Edward 1. the Law was made certaine , the Lord shall have aide of his tenants , as soone as his daughter accomplished 7. yeares age-for the marriage of her . Viz. xx . s. of a whole knights fée , and xx . s. of xx . I. ●and in soccage , and so forth , according to the rate more or lesse .

The King shall have this aide according to this proportion , by a Statute made 25. Ed. 3. and for this aide every Lord may either distraine or bring his writ de auxilio habendo at his election , but tenant by grand serjeanty , or petit , shall not pay this aide . Mich. 21. He. 4. fol. 32. no more shall coppy-holders , as séemeth by the writ , both in Fitzherbert and Bracton , for it is , Precipimus ut habere facias rationabile auxilium de Militibus , et liberetenentibus . Now if the Kings writ runne for it before the Statute , how is it that Bracton saith it was due , but de gratis , That perhaps he meant but for the quantity , ipse videri● , if the father dye , the daughter being unmarried , shee shall recover so much as was gathered and not paied her at the hands of the executor or heire , but this aide is onely for the marriage of the eldest daughter , and not for no daughter , where many make but one heire : But sée Bracton fol. 36. b. Where he saith , primae genitae filiae non dabitur auxilium tale , quia istud auxilium pertinet ad Cap. dom. sicut pertineret si non esset nisi unus haeres cum omnes sunt quasi unus h●eres .

SECT. V. A Woman compellable to serve .

THe next age of a Woman is 9. yeares when shee is dowable , but wee will stay a while with the virgins , concerning whom , if they be in the power and governance of parents , masters , or prochein amies , or if they bee poore , the Law differeth little or not much from the common forme apperteyning unto males , unlesse it been in cases of rape , which I reserve to the end of my discourse , where the poore have least need of subsidie , onely this I observe here , By a Statute made 5. Eliz. ca. 4. Two Iustices of peace in the Countrie , or the head officer and 2. Burgesses in Cities , &c. may appoint any woman of the age of twelue yeares , and under 40. being unmaried , and out of service , to serve and bee retained by yeare , weeke , or day , in such sort and for such wages as they shall thinke méet , and if she refuse , they may commit her to prison , till she shall be bound to serve .

SECT. VI. Of Heires .

BVt leaving this sort to the title of day laborers , come we to women wards in the custody of their lords . And take for the foundation here the Statute it selfe West . 1. Cap. 22. This Statute expresly reciting the materiall point of the Statute of Merton , willeth it in every of them to be observed , Merton Cap. 6. and the Statute of Merton is this , Whosoever lay person shall bee convicted bee hee parent or other , to have detained , abduced or married puerum aliquem , he shall yéeld the value of the marriage and be imprisoned untill yee have both made amends to the partie damnified , if the ward bee married , and satisfaction to the King for the transgression hoc de haerede infra 14. &c. but if any heire of 14. yeares age , or upward till 21. shall marry himselfe without gréeing with his Lord to defraud him of the marriage , where the Lord offered him a convenient marriage , and without disparagement , there it shall be lawfull to hold the inheritance untill and after the full age of 21. yeares , by so long time as shall suffice to reape and receive the double value of the marriage , secundum est inationem legalium hominum et secundum quod p●oeodem maritagio prius fuerit oblatum , sine fraude & malitia , et secundum quod probare poterit in Curia Dm. Regis . Let us speake of heires , and see a litle in what cases a woman shall inherit , It is knowne to all , that because women lose the name of their ancestors , and by marriage usually they are transferred in alienam familiam , they participate seldome in heireship with males , and therefore Bracton is bold to say , Nunquam ad successionem vocatur femina quandiu haeres superfuerit ex masculis , but to this rule he subjoyneth exception and examples , the very same which are in Littleton , To wit exception of right line , right bloud and maner of giving .

SECT. VII . Of the right Line .

A Female may be preferred in succession before a male by the time wherein she commeth : as a daughter or daughters daughter in the right line is preferred before a brother in the transversall line , and that aswell in the common generall taile , as in fee simple , for example , land is given to a man , and to the heires of his body , who dyeth having issue two sonnes , of which the eldest dieth , leaving issue a daughter , this daughter shall inherit by the right of blood , also a woman shall bee preferred propter jus sanguinis : Example , a man hath issue a sonne and a daughter by one venter , and a sonne by another venter , the first sonne purchaseth in fee , and dieth without issue , the sister shall inherit . So it is where a man seised in fee hath issue , ut supra , and dieth , his eldest sonne entereth and dieth without issue , &c. Bracton who hath both these cases , disputeth here as if he were seeking a knot in a bulrush , and he findeth a difference where the inheritance is Discendens and Perquisita . But Littleton is plaine though the second sonne bee heire to the father in the last case , and therfore should have had the land , had the eldest sonne neuer entered , yet the case being as it is : possessio fratris de feodo simplici facit sororem de integro sanguine esse heredem . & whether the fee was descended , or perquisit what skils it , here it must needs be , if the brother was heire of the blood of the first purchasor , that the sister of the whole blood is so too , yet there is a great difference betweene land purchased by him that died seised , and land discended unto him , for the first may goe to the heire on the fathers side , & for default of such to the heire of the mothers side , but land discended must alwaies goe to heires of the blood of the first purchaser , and the case may bee such that a female shall cary away inheritance from a male , though there be no difference of right line , or in the integrity of blood , which Bracton calleth jus sanguinis duplicatum : as where Iohn Stile purchaseth in fee , & dieth without issue , an ant or ants , or uncles daughter on the father side , shal inherite before an uncle , or uncles sonne on the mothers side , where they be both collaterall and the integrity or neernes of blood is alike . Put case , that the purchasor died leaving issue only Iohn the younger , and this Iohn married or unmarried dieth without issue , now cannot the land goe to the heires on the part only of the mother of young Iohn , and therefore ye must ascend a step higher to the marriage of the father and mother of the first purchasor , if ye will finde who shall inherit , where if there be neither brother nor sister to the purchasor , a daughter to the eldest uncle on the fathers side may inherite before any of the mothers side , yea and before a sonne of the second uncle on the part of the father , and this by the worthinesse of blood . I will not examine the crainkes of discent , but turne to the case , where possession of the brother excludeth a brother and taketh in a sister : If a man hath issue a sonne and daughter by one venter , and a sonne by another , and give land to the eldest sonne in taile , now if the father die and the reversion in fée discend to the eldest sonne , who likewise dies without issue of his body , the second sonne shall have this land : For here was no possession , but an expectance of fée simple in the eldest . Per omnes Iusticiarios de Communi Banco . 24 ▪ E. 3. fol. 13. For it is possessio fratris & non reversio fratris , &c. Yet Thorpe Iustice of the Kings Bench thought the land should goe to the daughter , Brooke con . Brooke discent . 13. Againe , afine was levied to I. and A. his wife in taile , the remainder in fée to A. they had issue a sonne , and the husband died , the wife tooke another husband , by whom shee had issue another sonne and died : the eldest sonne entered and died without issue , the collaterall heire to him entered as into the remainder in fée , and the youngest sonne of the halfe blood , to execute the fée , brought a Scire facias , which was holden good , for though the eldest might have charged , for●ited or given the fée simple by atteinder , yet it was not actually in him , and therefore the demi sanke none impediment but the younger sonne might have it , as heire to his mother , 24. E. 3. fol. 30. Which cases prove , that the possession of a brother to convey the fee to a collaterall heire , if it be not apprehendeth actively , the generall heire to the common ancestor may enter , Therefore where there is a son or daughter by one venter , and a puisne sonne by an other venter , if the father die seised of an advouson or a rent , and the eldest son died before he present or receive the rent , the daughter shall not inherit , and if the father die seised of an use in fee , possessio fratris facit sororem esse haeredem : by taking the profits of the ground . 5. E. 4. 7. Where it is said that if the father by testament bequeath the profits for tearme of yeares , this letteth not the possession of the eldest brother : otherwise it is , if it had beene for tearme of life , and the like difference is ( by this booke ) if a lease be made for yeares or for life of lands not in use , &c.

SECT. VIII . Where the manner of gift altereth the discent .

BRactons first exception to his general rule , that a Woman shall not inherit , when there is an heire male , is , Nisi contrarium faciat modus donationis . His example is , A man giveth land to one in mariage with his daughter , to them two and to the heires of their bodies , they have issue a daughter , and the husband dying , the wife taking another husband , hath by him a sonne and dieth , the daughter shall inherit per modum donationis , the case is plaine .

But Littleton hath a limitation , where modus donationis , doth cleane exclude Women from inheriting , That is , where lands are given to a man & the heires male of his body : now if he die having issue a sonne and a daughter by one wife , and a second sonne by a second wife , the daughter can never inherit , nay , if he die having issue a daughter onely , which daughter hath a sonne , neither daughter nor son shall inherit , for whosoeuer shall inherit by force of an intaile made to heires males , must ( per modum donationis ) be males & convey his discent to it per heirs males , which because the sonne cannot doe here , the donor may reenter . But Littleton saith also ( lest women should take the matter unkindly at his hand ) that where land is given to a man , & to the heires females of his body , his issue female shal inherit per formam doni & not the issue male : for the will of the giver must be observed . He hath another case which I may not omit : When lands are given a man , & to the heires males of his body , which have issue 2. sonnes , & the eldest dyes having issue a daughter , if hée lease the land for tearme of yeares , the reversion descendeth to the sonne : but if the lease bée for tearme of life of the lessée , the reversion and the fée simple descendeth to the daughter , the discontinuance is the cause , & here the daughter is in not in the per , but contra modum donationis by violating the will of the giver .

SECT. IX . Where a woman comming to lands shall retaine them , &c.

NOw I will shew you where a female having gotten inheritance : per modum donationis , or otherwise , shall retaine it , and where not . Marke well this case , Iohn died seised of fée , leaving issue Robert the eldest sonne , and Richard the puisne : Robert entred , tooke a wife and had issue Alice , which Alice died , hée tooke another , and leaving her great with childe hée died , the Lord seized the land and ward of Alice , and granted the custody to one which indowed the wife of Robert , she was delivered of a sonne William , The Lord seized William his ward which lived ten yeares , and died without issue , Henry the sonne of Richard the second sonne of Iohn entereth , Alice entereth upon Henry , and hée brings an assise : now because the possession of the Lord was seisin and possession of William , to whom Alice was but of the halfe blood , it was awarded that Henry should recover . But by the opinion of the Court , the land which the wife held in dowre should goe to Alice : for therein William had Broke dispent . pl. 19. no more but a reversion 8. Assisa pl. 6. Againe , Henry seised of tenements deviseable in Winchester ( where the Custome is , that hée which is seised by devise may not with warranty or without warranty make alienation to barre the reversion or remainder ( deviseth them to his wife Alice for tearme of life , the remainder to Th. his sonne for life , so that Th. should make no alienation : quo minus tenementa devenirent propinquioribus haeredibus de sanguine puerorum post mortem predicti Thom. Henry died having issue Steven an elder sonne , and Maud a daughter , which had issue Eliz. Steven died without issue Alice , the wife entered and died seised , Tho. entereth and alieneth in fée with warranty : Ma●d dieth , Elizabeth maketh claime by taking the haspe of the doore in her hand : Tho. dieth without issue , Eliz. entereth upon the alienee , he puteth her out shée , bringeth an assise .

It was holden that the heires of Henry had nothing in the fée simple by the limitation , which went not to his children , but to the next of blood to his children , excluding ses infants demesne , And by Wilby , if B. make a lease to Alice for life , the remainder to the néerest of blood , if he die having issue 2. sonnes , and the eldest dye having issue a sonne ( though this issue be heire to B , ) the other sonne after the death of Alice shall have the land as néerest of blood , and ( by Greene and Seaton ) if there had béene severall issues , of divers sonnes and daughters to the devisor , when the remainder vested it should have gone to them all . But here because the daughter of him had issue a daughter when the tenant for life died , and there was not issue of any sonne , at the instant to take from her , or with her , this Daughters Daughter shall have all , and though there came an after borne sonne of any of the brethren , she may detaine all , &c. for a remainder vested is not like to fée simple discended to a daughter , where a sonne Posthumus may enter . And if lands be letten for life , the remainder to the right heires of I. & if I. dye having issue a son , which entereth after the death of the tenant for life , & then dieth , his son shal have nothing , because he was not capax at the fal of the remainder , likewise where there is a brother & sister , & lands are let for life to an estranger the remainder to the right heires of the brother , if he and the tenant for life die , the sister may enter , and retaine the possession and fée , though the brothers wife bee afterward delivered of a sonne : in like sort did the remainder rest in the child of Ma●d in Eliz. viz. which recovered by award , 30. Assi . p. 47. But where there is father and sonne , which sonne purchaseth and dieth without issue , and an uncle entereth , if two yeares after the father hath a sonne by the mother of the purchasor , this sonne may enter and put out the uncle , and the reason of Law is that hée that comes in by purchase must be capax , at the time when the purchase vest in him , but in case of discent it is not so requisite . Perk. in his Chapter of devises saith , that if a devise bée made to a colledge , which is not a colledge at the time of the devise it is a void devise , although afterward it be made a colledge : & upon the same reason , is Dier 13 : Eliz. 303. of a devise to an infant in ventre sa mere : And where a man dieth seised and his daughter entereth , &c. a son borne afterward may enter , but it is not so in case of purchase , &c. for if a woman consent to a ravishor , & her daughter and heire enter by the statute , 6. R. 2. ca. 6. the son Posthumus shall not put her out , no more shall he , where a daughter and heire entereth for condition broken , and where a daughter hath a villain by discent , which purchaseth & she entereth into the perquisits an after borne sonne her brother shall have that which discended , viz. the villien but not the land : these cases hath Brook Discents , 58. out of the Doct. and Student , 5. Ed. 4. fo. 58. in the case of Elizabeth Venor , agreeth concerning entry made by 6. Ri. 2. And so doth Hales and Mountague , in the case of Wimbish and Talbois , yet Mountague Chiefe Iustice taketh there a learned difference if a man devise land for life , the remainder to the right heire male of the devisor , & the heires of his body , &c. now if the devisée for life die , and a woman which is heire generall to the devisor entereth , and hath afterward a sonne , the sonne shall never out the mother in whom is vested the inheritance for want of other persons to take the falling remainder : per le melior opinion 9. H. 6 : yet ( he saith ) the cases of ravishment possession of a brother , abatement of a bastard , &c , are all to bee understood of fée simple : for where the entry gaineth but estate taile , one may beate the bush and another take the bird , so if a man seised by discent from his mother make a feofment with condition , &c. and die without issue , if a woman heire on the father side enter for condition broken , an heire male or female on the mothers side may oust her . Plow . &c. fo. 56. a. b. & 57. a.

West . 1. ca. 22.

THen West goeth on with heire females , that so soone as they come to the age of fourtéene yeares if the Lord for covetousnes will not marry them , yet he shall not kéepe their land above two yeares after they have accomplished 14 ▪ within which two yeares if they be not married by their Lord , they may take action against him for their inheritance , to recover it without paying any thing for the custody or for marriage . If so be that of their proper malice or through the mischievous counsell of others , such women refuse convenable marriage offered by their Lord , he may in this case retaine their land untill they be of 21. yeares , and longer untill he shall receive the value of their marriage .

Littletons words upon this statute in his 2. booke cap. 4.

BY Littleton if tennant by service of Chivalry die , his here female being 14. yeares old or more ▪ the Lord shall have custody neither of the land nor body , for at that age a woman may have a husband able to doe knights service , but if such an heire be under 14. and unmaried at the time of her auncestors death , the Lord shall have ward in her land untill she be of 16. yeares age , West . 1. cap. 22. which getteth the Lord 2. yeares to tender marriage without disparagement , and if during these two yeares the Lord tender no such marriage shee may enter and oust the Lord . If such an heire female be married under the age of 14. in the life of her ancestor , which ancestor dieth before she accomplisheth 14. yeares , the Lord shall have no more but the wardship of her land till shee be 14. yeares old , and then her husband with her may enter into her land and put the Lord out , for this is out of the Statute , because the Lord may not tender marriage to her that is already married , for before the Statute of West . such an heire female that was under the age of 14. at the death of her ancestor , and had atteined afterward to the age of 14. yeares , without any tender of marriage by her Lord made unto her , might well enter into her land , and put out the Lord , as appeareth by the rehearsall and very words of the Statute , which as it séemeth ( so saith Littleton ) was made altogether for the advantage of the Lord .

A suspition of Littletons error .

NOw saving Mr. Littletons inspiration , I am greatly afraid that ye shal not finde by the text of the Statute , That an heire female , being under 14. at the death of her ancestor , might by the common law before this Statute , enter and oust her Lord , as soone as she had accomplished 14. yeare of age without tender of marriage . The law perhaps was so , but this Statute proves it not : Againe , I doubt , Littleton was deceived , in taking this Statute to be all for the advantage of Lords , yet it is likewise said by Davers 13. H. 7. 11. that this Statute was made for advantage of the Lords .

Glanvill ibro . 7. cap. 12.

HEare what Glanvill saith , women shal be in ward vntill they be of ful age & the Lord shal mary them being of ful age , euery one of them , with their reasonable portion , & thoughthey be of ful age they shal remaine notwithstanding in their Lords custody vntil they bée married by his aduise , for by the law of the land , no woman heire can be married , but by her Lords disposing and assent . In so much , that whosoever having a daughter or daughters heire or heires , shall in his life time without grée of his Lord marry any of them , he suffereth by the right and generall custome of the Realme perpetuall disinherison , without ever recovering any thing , but by the grace & méere mercy of his Lord . If it be prooved that any woman holden in ward do forfit with her body , she shal be deprived of her heritage , & her portion shall goe and accrue to her parceners . And if they all offend , the whole heritage shall fall as escheate to the Lord . But after such heires be once lawfully maried , though they become widdow afterwards they shall no more be holden in ward , nor then by their incontinency can they forfit any inheritance . But yet they may not remarry without their Lords assent . Thus far Glanvill .

Bracton his 2. Booke cap. 37.

BRacton , who ( as it may very well be gathered ) wrote one halfe hundred yeares after Glanvil , and but very little before the making of West . 1. In his 2. Booke and 37. Chap. finding it a question , at what time an heire female should bee out of ward , whether at 14. or 15. or at 21. acknowledgeth a greater capacity of deceipt , and maturity of desire , to be in women then in men .

And that therefore , a woman might be out of ward at 14 , and marry , because , at that age she is able disponere domui suae et habere cone et key , et virum sustinere , that is to order and dispose , a to have , the key clog at her girdle , and to be a jolly stay vnto a man . But this early emancipation of women heires he taketh to be onely of such as inherit land of socage tenure : for drawing toward the end of the Chapter he falleth in with Glanvil , And saith of heires coparceners in Chivalry , si ab initio omnes maiores extiterunt nihil ominus in custodia dominorum ●rint donec per consilium et dispositionem eorum maritentur : quia sine ipsorum consilio et assensu , mulier haereditatem habens maritari non potest non etiam in vita antecessorum , &c. quod si olim fecissent , hereditatem amitterent : sine spe recuperan●i nisi solum per gratiam . Hodie tamen aliam paenam incurrent . And presently hee sheweth the reason why they might not marry without their Lords assent viz. lest the Lord might be constrained to take homage of his capitall enemy , or of a man altogether vnfit or vnworthy .