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THE PROPERTY OF MARRIED PERSONS.

CHAPTER I.

INTRODUCTORY.

The

partnership.

§ 1. According to Professor Erskine marriage creates a Marriage as a society or partnership between the married pair. If marriage is, in any sense, a partnership, it can only be of that description which was known, amongst Roman jurists, as leonine. lion in the fable divided the prey into four shares, but devoured all four himself; so the law of Scotland speaks of a communio bonorum between husband and wife, but gives everything to the husband. Marriage was, however, a true partnership according to the old laws of the Norsemen and the customs of the ancient Germans. A community of property, une communauté des biens, between husband and wife in which fact was not altogether at variance with language formed part of the law of Holland, of Spain, and of France in those provinces which were governed by their own coutumes. Originally it applied only to the bourgeois and peasantry, but on the revision of the customs in the sixteenth century it was extended to the nobles of Northern France. The code civil, when these coutumes were abolished, retained la régime de la communauté, and made it, jointly

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Betrothal wedding.

with another arrangement, the modern law of France;1 and now, says M. Laboulaye, "Je ne sache point de jurisconsulte qui l'ait sérieusement attaquée.”

2

§ 2. Marriage in old times consisted of two distinct parts, the betrothal (desponsatio et dotatio), which was a civil contract, and the giving away (traditio et sanctificatio), which took place at the end of a year, when a priest was present and sanctified the union by his blessing. The former was the "wedding," so called from the weds or pledges between the bridegroom and the parents or guardians of the bride;3

The two systems are la régime de la communauté, which represents that of the old German or native law; and la régime dotal, which represents that of the Roman law. "Under the régime de communauté the arrangement is that, subject to special stipulations, the husband and wife shall form a partnership, the husband to be the managing partner, and to account to the wife, in person if necessary, or by his representatives if she survives him, to their children, or her heirs, if he survives her. Under the régime dotal, the bargain is, that, in order to assist the husband to pay the expenses of the marriage, the wife or her family will pay the husband a sum of money, which he is to manage during the marriage, and for which he or his representatives are liable to her representatives after the marriage. If the dower [more properly dowry] is in danger,' he is liable at any time to be called to account as to his proceedings. Under either system the parents may, during their life-time, advance their children, but the interest of the children on the death of the parents is provided for, not as with us by clauses in the settlement, but by the general law as to inheritances."—The Cornhill Magazine (1863), vol. viii. p. 673.

2 Recherches sur la Condition des Femmes, p. 380 (Paris, 1843); see also p. 396.

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3 See The Laws of King Edmund, Ancient Laws and Institutes of England, i. p. 255; Thrupp, The Anglo-Saxon Home, p. 46 (London, 1862). The Regiam Majestatem (ii. c. 13, ed. Innes, c. 16, ed. Skene) provides thus "Tenetur autem unusquisque tam de jure canonico quam jure seculari, sponsam suam dotare, tempore desponsationis." (Cf. Glanvil, xi. 1.) The concluding words refer to the ceremony at the church, but evidently relate back to the time when desponsatio et dotatio was an independent and anterior proceeding.

The use of the word dos is misleading. In Roman law it meant

and so necessary were they that they constituted a legal Gifts. marriage, while the children of the undowered woman were illegitimate.1 With the religious ceremony came the churchdoor gift and the Morning gift made to the bride.2

a marriage portion, or dowry--the Scottish tocher. In the above passage from the Regiam Majestatem it means the English dower. Dos acquired this meaning at an early date. See post, § 113. In the Formulae of Marculfus it always refers to the property settled by the husband upon the bride. See also the very interesting Formula sollemnis de dote in the Formulae Andegavenses, Walter, Corpus Iuris Germanici Antiqui, vol. iii. p. 498. The husband after reciting the espousals grants to his espoused wife "tam pro sponsalitia quam pro largitate tude" to be vested as at the wedding day.

Originally dower was only part of the bride-price paid to her father and settled on the daughter. The portion was the sum paid by the father to persuade a suitor to take a daughter off his hands. Dasent, The Story of the Burnt Njal, i. p. 27; Laboulaye, Recherches, pp. 84, 117; Maine, Early History of Institutions, p. 324.

1E. W. Robertson, Historical Essays, p. 173 (Edinburgh, 1872); Scotland under her Early Kings, ii. p. 326. See Marriage in the German Middle Ages, by Dr. E. Friedberg, The Journal of Jurisprudence, 1888, vol. xxxii. pp. 16, 67.

There is a form (No. 52) in the Appendix to Marculfus providing for succession in such a case. It recites, "Ideoque ego, ille, dum non est incognitum ut femina aliqua, nomine illa, bene ingenua, ad conjugium mihi sociavi uxore, sed qualis causas vel tempora me oppresserunt ut chartolam libelli dotis ad eam, sicut lex declarat, minime excessit facere, unde ipsi filii mei, secundum legem, naturales appellantur." Walter, Corpus Iuris Germanici Antiqui, vol. iii. pp. 369, 430; Rozière, Recueil Général des Formules, No. 130, t. i. p. 166.

2 Traces of this lingered on in Scotland until a comparatively recent date. An Act of Parliament in 1503 ratifies "the donation and gift of oure souerane Lady [Margaret of England] the qwenis drowry and morwyngift." Acts of the Parliaments of Scotland, ii. p. 240. In 1542 David Howeson of Anstruther was ordained by the Official Principal of St. Andrews to deliver to Agnes Anstrothir or Betoun a rose noble given by him as dowry" to his wife, Marjorie Anstrothir, and 7 stones of lint or to pay her 7s. per stone as its value which he had promised at the church door to his wife as mornyng gift," all of which she had bequeathed to the pursuer. Liber Officialis S. Andree, p. 143 (Abbotsford Club). When James VI. married Anne of Den

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person.

Unity of The shadow of the old custom still lingers but the substance is gone. "With all my goods I thee endow" is the promise required of the man by "The form of solemnization of Matrimony," but he gives nothing and takes all. The theory of the common law of England is that husband and wife are caro una et sanguis unus,2 but no new persona is created, as in the Scotch law of partnership. Husband and wife are one person, and, as it has been pithily put, the husband is that person. The persona of the wife is entirely eclipsed by that of the husband, which alone is recognized; " or at least," says Blackstone," it is incorporated and consolidated into that of the husband, under whose wing, protection, and cover she performs everything."3 Hence in English law the married state of the woman is technically referred to as coverture ;a mark, he gave her "in forme of morrowing gift" the Lordship of Dumfermline. Acts of the Parliament of Scotland, vol. iv. p. 24. See also Skene, De Verborum significatione, s.v. Dos.

It was only in 1833 that dower ad ostium Ecclesiae was abolished in England by 3 and 4 Wm. IV. c. 105, § 13.

1 Glanvil, De Legibus et Consuetudinibus Angliae, xiv. c. 3; Regiam Majestatem, iv. c. 4 (ed. Innes, c. 5, ed. Skene); Bracton, De Legibus Angliae, 5. 5. 25, § 10 (Rolls Series, vi. p. 392); Dialogus de Scaccario, ii. c. 18; (Stubbs, Select Charters) p. 239 (ed. 1884). Tacitus, De Germania, c. 19, speaking of the German husband and wife, says they were unum corpus unaque vita."

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2 This is not altered as regards third persons by the Married Women's Property Acts. A gift to a husband and wife and a third person is still to be construed as giving a quarter each to husband and wife and a half to the third person. In such a case husband and wife are still caro una. Jupp v. Buckwell, L.R. 39 Ch. D. 148. But see Byram v. Tull, L.R. 42 Ch. D. 306. Where "unity" does not prevail the result is, of course, different. Dias v. De Livera, L.R. 5 App. Ca. 123.

3 In Scotland the expression was that the person of the wife is quodammodo sunk in that of her husband. Ersk. 1. 6. 25; Bell's 8vo Cases, p. 256.

4 This term is not unknown in Scotland. Fountainhall (Decisions, ii. p. 220) speaks of femme coverte. The old Scots expression for a married woman is "cled with a husband," the native rendering of vestita viro.

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