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in respect of

estate.

§ 26. If the jus mariti and right of administration are 3. Obligations excluded a married woman can contract or incur debt in separate respect of her property as if she were unmarried. The only difference is that she does not oblige herself personally. Whenever, therefore, a married woman can contract debt so as to bind her separate estate it follows that she can be made bankrupt and her estate sequestrated, and it does not matter whether she is engaged in trade or not, or whether the debt has been incurred during marriage or was ante-nuptial.'

ad factum

§ 27. If a married woman grants an obligation ad factum 4. Obligations praestandum, e.g. to enter vassals, to deliver articles in her praestandum. possession, to exhibit titles, to dispone heritage, and generally to perform facts which are in her own power, and cannot validly be performed but by herself, she will be compelled to implement it. In such cases personal diligence may be used against her, and she is liable to imprisonment in the event of non-implement.2

12 Bell, Com. 167 (5th ed.), 157 (7th ed.). Formerly there was a difficulty in rendering a married woman notour bankrupt, but this was removed by the Bankruptcy Act of 1856, § 13, and by the same Act the distinction between traders and non-traders was abolished.

Sequestration of the estates of married women frequently takes place, as may be seen by an examination of the files of the Edinburgh Gazette.

Cessio is now likewise competent. Davidson v. Rae, March, 1885, 1 Sh. Co. Rep. 147; Mackenzie, Law of Cessio, p. 10. There must be intimation of the proceedings to the husband.

2 Stair, 1. 4. 14; Ersk. 1. 6. 19. Tait. Wilson, 4 June, 1831, 9 S. 680. Here a married woman was imprisoned for 30 days for refusing to sign a receipt for legitim; but the Court indicated that it was incompetent as the husband's receipt was all that was required.

CHAPTER III.

Usus under
Roman law.

House Com.

munity in

of France.

THE DISPOSITION OF THE PROPERTY OF MARRIED PERSONS

WHICH THE COMMON LAW MAKES UPON THE DISSOLU-
TION OF THE MARRIAGE BY THE DEATH OF EITHER
SPOUSE.

§ 28. According to the Roman custom of usus a woman passed under the manus of her husband if she lived continuously with him as his wife for a year. She was, says Gaius,1 usucapted, as it were, by a year's possession, and so passed into her husband's family and acquired in it the position of a daughter. This usus was thus simply the ordinary prescription. When a Roman citizen had possession of anything, except land, for a year, he attained the full rights of ownership.

Something similar to this prescription existed down certain parts to a very recent date, as an incident of certain base tenures, in some districts in France in which traces of the House Community prevailed. Under that arrangement community was produced between two or more persons by their merely living together "a un pain et a un pot" for a year and a day. If any one was allowed to become an inmate of a household and continued therein for that period, the whole moveable property of the persons thus brought together was merged in one fund. Thus, a son-in-law or daughter-in-law who came to dwell with their father-in-law

1 Gaius, Institutes, i. 111.

or mother-in-law acquired community of goods with them at the end of a year and day, if there was not an agreement to the contrary.1

communio bonorum

§ 29. It has been suggested that the communio bonorum Origin of between husband and wife had an origin similar to that of between huscommunity of goods under this local custom. This, how-band and wife. ever, is a subject that would require further investigation. Whatever may have been the foundation of communio bonorum inter virum et uxorem, it is the case that in certain provinces of France and in some parts of Germany it did not become effectual until a year and day after the marriage.2 Such, too, was the law of Scotland. While this may have originated in a rule requiring a certain period to produce community, it would rather appear that it arose out of the ancient forms of contracting marriage.

between the

marriage.

§ 30. When in old times marriage consisted of two parts, Lapse of year the wedding and the giving away, the practice was that the two parts of latter took place within year and day of the former. The intervening time was a period of probation, and until the giving away the contract was not complete and either party could withdraw on forfeiting whatever gifts he or she had received. This bears a close resemblance to the Roman usus, and a common custom may underlie both. If the woman became a mother in the interim her child was legitimate. The betrothal was known amongst the Scandinavians as Laboulaye, Recherches, p. 333; Maine, Early Law and Custom,

p. 237.

2 Laboulaye, Recherches, pp. 335, 373; Pothier, Traité de la Communauté, § 5, Œuvres, t. vii. p. 58. Both refer to the Coutumes of Bretagne, 421, 446, 448; of Anjou, 511; of Maine, 508; and of Grande-Perche, 102; Grand Coutumier, ii. c. 40.

3 Something similar prevailed in the old Burgh Laws of Scotland. Possession of land in a burgh for a year and day gave a good title. Leges Burgorum, c. 10, ed. Innes.

Custom of handfasting.

1

festar or fastening; and in Scotland the name hand-
fasting 2 was given to a somewhat similar ceremony which
Under
was in use until a comparatively recent date.
this custom the engagement lasted for a year, and if
each party continued constant the hand-fasting was
renewed for life, but if either dissented the engagement
was void, and both were at full liberty to make a new
choice, with this proviso, that the inconstant was to take
charge of the offspring of the year of probation. The
old term was long used to describe the betrothal as dis-
tinguished from the subsequent marriage. Thus, says a
chronicler of the year 1571-John Lord Maxwell who
"was contractit in marriage with ane sister of Archibald Erle
of Angus and Mortoune, had maid provisioun for a bancat
to be maid in Dalkeyth, for the feasting of sum nobles and
gentilmen to that hand-fasting."4 In 1568 the Kirk Session
of Aberdeen ordained that "nether the minister nor reader
be present at contractis of marriage-making, as thai call
thair hand-fastinis, nor mak na sic band."5 Mr. Andrew

1 Du Chaillu, The Viking Age, vol. ii. p. 5 et seqq.

2 It was known in England in Shakespeare's day: "the remembrancer of her to hold the hand-fast to her lord,” Cymbeline, i. 6. “She is fast my wife, save that we do the denunciation lack of outward order,” Measure for Measure, i. 3. It was an old Anglo-Saxon custom. See Thrupp, The Anglo-Saxon Home, pp. 47, 50 (London, 1862).

3 Pennant describes the custom as it existed in Eskdale in the seven

teenth century. Tour in Scotland, ii. p. 91. See Robertson, Scotland under her Early Kings, ii. 98. The French Ambassador in Scotland wrote to King Charles IX. in 1567:-"Ilz ont coustume estrange en Angleterre, mais plus prattiquée en Escosse, de pouvoir se répudier l'un l'aultre quant ilz ne se trouvent bièn ensamble." Teulet, Papiers d'Etat relatifs à l Histoire de l'Ecosse, t. ii. p. 157, quoted Robertson, Statuta Ecclesiae Scoticanae, vol. ii. p. 297.

* Historie of King James the Sext, p. 98 (Edinburgh, 1825, 4to). Selections from he Records of the Kirk Session of Aberdeen, p. 14 (Spalding Club).

Cant in a sermon at Glasgow, in 1638, pressing the people to take the Covenant, said, "that he was sent to them with a commission from Christ, to bid them subscribe the Covenant, which is Christ's contract, and that he himself was come a wooer to them from the bridegroom, and called upon them to come and be hand-fasted unto Christ by subscribing the contract."1 "Every soul," says the Rev. James Fergusson of Kilwinning, "is, when the Father draweth it to Christ, contracted and hand-fasted with him."2

bonorum

§31. Hand-fasting ceased to be a custom binding in law Communio prior to the sixteenth century, but even so late as that time emerged when it was of considerable force. If then marriage only became fected."

1 The Spirit of Popery speaking out of the Mouths of Phanatical-Protestants; or, the Last Speeches of Mr. John Kid and Mr. John King, two Presbyterian Ministers. by an Orthodox Protestant, p. 7 (London, 1680, fol.). Dalyell (Darker Superstitions of Scotland, p. 291) gives a similar passage from John Kid's speech, but there is no such passage either in the above edition or in the quarto edition of 1680. Neither is it in Wodrow's version. On a copy of the quarto edition, which I have, a contemporary has written, "The Fanatick teachers in London can easily make Scotch speeches, with never a Scotch word in them." The suggestion evidently is that the speeches were written in London.

2 Exposition of the Epistles to the Galatians and Ephesians. (Edinburgh, 1659).

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3 Handfasting seems gradually to have extended to a longer period than a year, and to have become merely a promise to marry. In 1562 the kirk session of Aberdeen ordained "Becaus syndrie and many within this toun ar handfast, as thai call it, and maid promeis of mariage a lang space bygane, sum seven yeir, sum sex yeir, sum langer, sum schorter, and as yit vill nocht mary and compleit that honorable band nother for fear of God nor luff of thair party that all sic personis as hes promeist mariage faythfully to compleit the samen betuix this and Fasteranis Evin nixt cummis." Selections from the Records of the Kirk Session of Aberdeen, p. 11 (Spalding Club). By the "Statutes of Icolmkill" made by the Bishop of the Isles in 1609, under a special commission from the King and Privy Council of Scotland, "marriageis contract it for certeine yeiris" are "simpliciter dischargeit." Collectanea de Rebus Albanicis, p. 119 (Iona Club, 1847).

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marriage per

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