Imágenes de páginas

and so necessary were they that they constituted a legal Gifts.
marriage, while the children of the undowered woman were
illegitimate. With the religious ceremony came the church-
door gift and the Morning gift made to the bride.2
In the above pas-

a marriage portion, or dowry--the Scottish tocher.
sage from the Regiam Majestatem it means the English dower. Dos
acquired this meaning at an early date. See post, § 113. In the For-
mulae 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



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 England1 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 ;* 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 “unun corpus unaque vita.”

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.


husband and wife are known as baron and femme, and a Disabilities of married woman as coverte de baron.1 Marriage by that law

is an absolute gift to the husband of nearly all the property

of the wife.

because she is

He cannot grant or give anything to her

himself; 2 and if there are any compacts

Her earnings

between them before marriage they are dissolved on
marriage by the union of persons it creates.
belong to him at common law. She cannot sue for them;
and if the employer paid the amount to the wife, her
receipt was void, and the husband could recover payment a
second time.3 He may dispose of all her chattels personal,
by deed or otherwise in his lifetime, or by his will. They
are subject to his debts, and, in case of his intestacy, they
form part of his general personal estate out of which his
widow would merely be entitled to a distributive share, as
she would be out of property which had originally been her

modified by

§ 3. The harshness of the common law was somewhat Common law mitigated by the courts of equity. Equity long ago rejected equity. the doctrine of a married woman having no personality,

See e.g. Balfour, Practicks, p. 93; Edmonstone v. Edmonstone, 1570,
M. 5997.

1" Madam, we will have a trick for his trick; say you are my wife, and plead covert-bearn." Crowne, The Country Wit (1675), Works, iii. p. 102 (ed. 1874).

2" A feme covert cannot take anything of the gift of her husband," Co. Litt. 3. a. So too he cannot covenant with her: she cannot in law be convicted of stealing his property. While a husband could not at common law make a direct gift to his wife, he could do so through a trustee or otherwise. See note to Coke upon Littleton supra. The result was the same under early Roman law, when the wife was in manu of her husband.

3 Offley v. Clay, 2 Man. and Gr. 172. The common law of Scotland is pretty much the same, Henderson v. M'Callum, 1794; Hume, 202.

Division of the subject.

recognized that a married woman might possess separate property, that having property she might dispose of it at her own pleasure, that she might make contracts regarding it, and as a necessary consequence that she might be sued upon such contracts.

It was seen, however, that what was required was not an ingenious device for avoiding the consequences of the law, but a modification of the law itself, and this has recently been effected by statute, as will be hereafter explained.

§ 4. Turning now to the law of Scotland we shall con


(a) The effect of marriage upon the property of the spouses according to the common law.

(b) The disposition of that property which the common law makes upon the dissolution of the marriage by the death of either spouse.

(c) The modifications which have been made upon the common law by statute.

(d) The conventional arrangements by which the property of married persons is protected, and the interests of themselves and of their children therein are regulated.

(e) The effect of bankruptcy upon the property of married persons, and upon conventional provisions for married persons and their children.




5. Immediately upon marriage the husband is by the Jus mariti and right of admincommon law of Scotland invested with what are known as istration. his jus mariti and right of administration-his headship and gubernative administration as Fountainhall calls it and is constituted his wife's curator or guardian. In virtue of the jus mariti the husband becomes absolute owner, with a few trifling exceptions, of all the moveable property then belonging to the wife or subsequently accruing to her, capital as well as income, and, in virtue of his right of administration, of the income, but not of the fee of her heritable estate.2 The assignation is complete-contrary to the rule in nearly every other case-without intimation, and operates all the world over.3 While the marriage subsists the wife has no say in the disposal of anything that falls under the jus 1 Fountainhall, Decisions, ii. p. 220.


2 Distinguish between jus mariti and right of administration. Brodie's Stair, i. p. 30 n.; Fraser, Treatise on Husband and Wife, i. 676, 796; and Lord Gifford in Bryce's Trustee, 2 March, 1878, 5 R. 722. Cf. Dick v. Lady Pinkhill, 1709, M. 5999, and the Married Women's Property (Scotland) Act, 1881, § 1., sub-sec. 1, and § 2.

3 Per Lord Meadowbank in Royal Bank v. Stein & Co's Assignees, 20 Jan. 1813, F.C.; S.C., Buchanan's Cases, p. 320, and 1 Rose Bank. Ca. App. 481; See also Selkrig v. Davies, 2 Dow, 230; S.C. 2 Rose Bank. Ca. 99. As to the present law, see infra, pp. 66, 79.

« AnteriorContinuar »