Chap. XVIII
Of Marriage-hood—the one kind is free, the other, liable to the performance of services.289 Marriage-hood is called free, when any freeman gives a certain part of his Land with a Woman in Marriage to another, so that such Land be exempt from every kind of service, and acquitted on the part of him and his Heirs, as against the Chief Lord. The Land in question shall enjoy this immunity, even to the third Heir;290 nor, during the interval, are the Heirs bound to do any Homage for it; but, after the third Heir,291 the Land again becomes subject to its original services, and Homage shall be received for it, and, if it be part of a Military Fee, the Tenant shall perform the service of the Fee, with reference to the quantity of the Land. But sometimes Land is given in Marriage-hood, saving and reserving the services due to the Chief292 Lord; and then indeed, the Husband of the Woman and his Heirs must perform the services, with the Exception of Homage, even to the third Heir.293
But the third Heir shall do Homage for the first time, and all his Heirs afterwards. But another Fealty,294 with the interposition of a solemn promise or oath, shall, in the intervening period, be performed by the Women and their Heirs, almost in the same form and in the same words in which Homage is commonly performed.
When, therefore, any one has received Lands with his Wife in Marriage-hood, and has by her an Heir, Male or Female, heard to cry within the four Walls, then, if the man survive his wife, whether the Heir live or not, the Marriage-hood shall notwithstanding remain to the Husband, during his life; but, after his death, it shall revert to the original Donor, or his Heirs.295 But if he never had an Heir from his Wife, then, immediately after her death, the Marriage-hood shall revert to the Donor or his Heirs.296
And this is some reason why Homage is not usually received for Lands in Marriage-hood.
For if Land were so given in Marriage-hood, or in any other way, that Homage was received for it, then, it would never afterwards revert to the Donor, or his Heirs, as we have explained. If, however, such Woman take a second Husband, the same Rule prevails, as to the second, as we have stated concerning the first, whether the first should have left an Heir or not. But when any one sues for Land as the Marriage-hood of his Wife, or when the Woman or her Heir does so, then, a distinction must be made, whether the Land is demanded as against the Donor, or his Heir, or against a stranger. If the Suit be against the Donor, or his Heir, then, it is at the Election of the Demandant, whether he would proceed in the Court Christian, or in the Secular Court.
For if the Demandant chuses to resort to such Tribunal, it belongs to the Ecclesiastical Judge to hold pleas of Marriage-hood; a Jurisdiction he acquires from the mutual Troth usually plighted, when any one promises to marry a Woman, and she in her turn promises marriage to him. Nor, indeed, is the Ecclesiastical Judge prohibited by the King’s Court from holding such plea, although it concern a Lay-fee, if it be clear that the demand relate to Marriage. But if the Suit be brought against a Stranger, then, indeed, it shall be determined in the Lay Court, and that, in the same manner and order in which Pleas concerning other Lay Fees are generally conducted.
Yet, should it be observed, that the Suit ought not to be proceeded in, without the Warrantor, as we formerly mentioned when treating of Dower. The Suit, indeed, must be proceeded in, as far as respects the Warrantor, in the same manner as a Plea in Dower. What we, therefore, said on the former occasion with respect to this point, is applicable to the present. It remains to add, that the third Heir, after he has once done Homage, can297 proceed in the suit without the authority of the Warrantor.