what is due unto them, and also that upon Conference and Account with their Agents returning from other Countries, they may be made acquainted with the Increase of their Adventures or Commodities, it is necessary they should have Places of Meeting, which will not be so convenient in a close Prison, the same being no Place of Assembly or free Access, (especially it being no common Duty in the Gaoler to permit any Person to come among his Prisoners for any such Occasion) and if the Gaoler were bound to endure and suffer such common and voluntary Repair upon his Prisoners, yet will it be no fit Place for Merchants to treat and negotiate their Causes, which cannot be well determined without their Books of Accounts, and Witnesses of their Contracts, and oft must the same be decided before the Masters of their Trades or Companies. So that this Custom made in Furtherance of mutual Accounts, do very much enable the Prisoner to procure his Liberty and pay his Debt. Also if the Prisoner be poor, and of himself unable to pay, this Toleration of their going Abroad with the Keeper, is a good Mean for him to procure the Alms and Relief of other charitable People, thereby the sooner to purchase his Liberty. Whereby is appeareth what Reckoning the Law maketh of them, in Consideration of their great Hazard by Sea (thro' Danger of Shipwreck or Piracy) and Adventure in strange Countries, (by Falshood and Negligence of Factors) or by Wars between Princes, the Inconveniences and Mischiefs whereof are not so offensive or prejudicial to any, as to Merchants, whose Condition, as it may by a fortunate Voyage be much enriched, so may it, by any of the Mischances aforesaid, be so impaired and overthrown, that it may turn himself, his Wife and Family to utter Calamity and Distress.

Vide 4 E. como. 36.

Therefore, as the Hope and Comfort of the (Wife, having commonly no Assurance of Jointure in the City, nor Expectation of Dower as other Women have) and also of the Children (being for the most part born to no great Patrimony, other than that which their Fathers shall by their vertuous Industry acquire) doth only depend upon the Fortune of their Husband's or Father's Travail, it hath laudably and conscionably been observed for a Custom, and is yet, by the wiser and better Sort, religiously regarded, that when any Citizen of London dieth, his Wife shall have the third Part of his Goods, and the Children another third Part, equally to be divided among them, according to the Proportion of his Goods, and himself another third Part to dispose by his last Will and Testament at his Pleasure. A Partition so reasonable, and grounded upon so good Consideration, (the Quality and State of the Londoners considered) that if it were not approved by Custom, but to be proposed in the wisest and highest Court of Parliament, whether it were fit to have the Force of a Law, I think no Man, (unless he were a Timon by Nature, or a Diogenes by Disposition) no Man, I say, possessed with common Humanity, would gainsay or impugn it. Doth not the Common Law now in Force give the Husband presently by the Intermarriage, all the Goods and Chattels of his Wife, tho' the same be of the Value of ten thousand Pounds; so that when she is once his Wife, the Law disableth her to give or dispose any Thing that was hers before? And shall not the Husband be bound by semblable Obligation of Reason to leave his Wife the third Part of his Goods? And if the Law be in that Respect defective, (as what Law in the World, except the Law of God, is without his Imperfections?) shall not the Custom supply it in such Sort, that no barbarous and uncharitable, or cautelous and unkind Practices by Deed of Gift, or otherwise, shall disappoint or defraud the same? Especially here in London, where the good Estate of Men, for the most Part consisteth in Movables, by Reason of their continual Trades and Exchanges: so that their Wives cannot assure themselves of their Dowry, commonly called Thirds, as they might, if their Husbands were seised of Lands in Fee-simple. Also, the comfortable Society between Husband and Wife, is of that pretious Estimate and honourable Reputation before God and Man, that there may not possibly a more sacred and strait Conjunction be imagined among the Children of Men. Charondas the Philosopher calleth them Homositios, which signifieth, fed with the self same Food. And Epimenides, another Philosopher, calleth them Homocapnos, which is as much to say, as using the self-same Smoke, and the self-same Manger, as it were drawing the self-same Breath. Finally, the Scripture giveth express Charge to each Man to tender his Wife with extraordinary good Offices, by saying, Thou shalt leave thy Father and Mother, and cleave to thy Wife. If the Force of Custom did not enforce the Matter, these only Considerations were sufficient to prove, that there should be nothing private, nothing peculiar, nothing proper, but every Thing in common, every Thing equally interested between the Husband and the Wife. The like, tho' not equal Affection, is commanded by the Apostle to the Col. 3. by the Fathers towards their Children: You Fathers be tender and loving to your Children, and discourage them not.

Customs of London for Wife and Children.

The Partition.



Matth. ca. 19.

Mark cap. 10.

1 Cor. cap. 7.

Ephes. cap. 5.

But let us see what Account our common Law hath made of the like Customs, founded upon the Love and Affection between Man and Wife. It was used of ancient Time in Gavelkinde Land, and hath received the Allowance and Judgment of a good and lawful Custom, that if the Husband be attainted and executed for a Felony by him committed, yet shall his Wife, for the Solace of her Loss and Desolation, have her Dowry of his Land, and also the Heir shall inherit the same according to that old Saying; The Father to the Bough, and the Son to the Plough: Altho' the Common Law, by rigorous Imputation, to make Man more fearful to offend in Crimes of such Quality, extendeth the Punishment, tho' not to the Persons of the Wife and Children, yet to their Fortune, so far as it may turn to their utter Impoverishment and Discomfort.

8 H. M. 3. Pres. 60.

8 E. 2. It in Can. Prescr. 50.

P. 35. H. 6. 58.

In the City of York, there is a Custom, that the Husband may enfeoffe his Wife of such Land as he shall purchase, which, tho' it be against the Rule of Common Law (which disableth the Husband to convey any Land to his Wife) by Feoffement or Deed, yet by Force of the Custom it was adjudged to be lawful and effectual. Also the Custom of many Places in England is, that the Wife shall enjoy the whole Land of her Husband in Name of her Dowry, as it appeareth by M. Litt. himself, and the Husband cannot by any Cautel or Devise defeat her thereof. And in some other Countries they have the Moiety or tone Part, and generally by the Common Law the third Part. In North Wales the Custom is so beneficial for Wives, (that altho' they be sure of their Thirds of such Land as their Husbands shall chance to be seised of at any time during the Marriage) yet are they to have the Moiety or tone Part, not only of his Goods and Moveables, but also of his Leases, be the Terms thereof never so long. Not many Years ago, the Custom of Taundean was alledged, and allowed by the Court of King's Bench, that the Husband and Wife, whethersoever of them

A Custom in York.

12 H. 3. Prescr. 6. 1.

Litt. ti. Dower.

In North Wales.

14 Eliz.