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have the whole property or a definite part.* Gide† quotes an agreement made on setting out for Rome, by Manfredus and his wife, Adalaiz, (anno 966) which says: "All the above-named property we will hold and possess equally as long as we live and if my wife shall survive me she shall hold and possess it all."'‡ Sometimes the condition is made that the woman shall not re-marry. The wife was not, however, considered the heir of the husband, nor the husband of the wife.§
A. THE WIFE'S PROPERTY.-The period of English history from the earliest Saxon laws recorded in the reign of Ethelbert (after the coming of Augustine into England) to the Norman Conquest, may be treated as a whole in its relation to our subject. The Danish Conquest made no change that we can discover in the laws. I shall therefore cite the laws and charters of Cnut as well as those of the Saxon kings. I. Weotuma. Marriage here, too, kept the form of a sale. The laws of Ethelbert (77) say: "If a man buy a maiden with cattle let the bargain stand, if it be without guile, etc.," and also (31) “If a free man lie with a freeman's wife let him pay for it with his wergeld and provide another wife with his own money and bring her to the other." Grimm considers that the wife was actually regarded as property. But she is not inherited as a ward by the heirs of her husband as in the Saxon¶ laws, but on the contrary herself had a right to one-half the property if the husband died first.** It is related†† that as late as 1864
Marc. II., 7, and many others.
Op. cit., p. 388.
1 See note*, p. 40.
2 Schroeder, p. 166.
| Laws of Ine., 31. If a man buy a wife and the marriage take not place, etc. In Thorpe's "Ancient Laws and Institutes of England," from which I quote all the Anglo-Saxon laws cited.
Lex Saxonum VII. 2. Lex Rotharis, 182.
** Ethelbert, 78.
# Stamwiler," Stelling der Frauen," p. 33. There have been similar instances in this country.
in England a man took his wife to market with a halter around her neck and sold her to another man for a shilling. But this case, if authentic, is more easily traceable to the common-law doctrine of a man's lordship over his wife than to any survival of a possible Anglo-Saxon sale. The more probable opinion seems to be that payment was made for the transfer of the guardianship of the woman and not for the woman herself. It was called weotuma (the German mundschatz) and was correlated with the mund-bryce or compensation due to the guardian for any violation of his rights of guardianship.
In the laws of Alfred † the weotuma was paid to the bride herself. "Let him see that she have raiment, and that which is the value of her maidenhood, namely, the weotuma." The bride-price has become a bride-gift. In the Kentish Betrothal it is called "what he will grant her in case she choose his will;" and in the contract of Godwin and Byrhtric it is "one pound's weight of gold for that she should choose his will," a merely nominal price. The weotuma continued distinct from the morning-gift during the AngloSaxon period, but was later merged with it.‡
II. Morning-gift.-The discussion of married women's property among the Anglo-Saxons, although treated by many learned writers, is a snarl of confused and contradictory statements. The best treatment of the subject in English is that of Professor Young, § but even that is not entirely clear. The principal reason for the conflict of statements is the variety of customs that existed; another reason, in foreign writers particularly, is the lack of distinction between the Anglo-Saxon and Norman periods. Nevertheless, the records are measurably full and clear, and I hope it will be * Schroeder, p. 50. “Ein wirkliches Abkaufen der Vormundschaft." Thorpe, note to Eth. 75. See also Young, quoted on page 35.
† Ecc. Laws 12.
In "Essays in Anglo-Saxon Law," edited by Henry Adams. Professor Young relies largely on Schroeder, "Geschichte des ehelichen Güterrechts," which is perhaps the most thorough discussion of the subject.
possible to bring out the main features of women's position as property holders with some certainty.
It was usual in the Anglo-Saxon period to fix the wife's share of the property by an agreement at betrothal or after marriage, which set apart a certain amount of property as the wife's morning-gift. Perhaps this can be made more clear by quoting contemporary documents. First, then, let us take the laws of Edmund, generally known as the Kentish Betrothal.*
Of betrothing a woman.—If a man desire to betroth a maiden or a woman and it so be agreeable to herself and her friends, then it is right that the bridegroom, according to the law of God and according to the customs of the world, first promise, and give a wed† to those who are her foresprecast that he desire her in such wise that he will keep her according to God's law, as a husband shall his wife, and let his friends guarantee that.
2. After that, it is to be known to whom the foster-lean? belongs; and let the bridegroom give a "wed" for this: and let his friends guarantee it.
3. Then, after that, let the bridegroom declare what he will grant her in case she choose his will, and what he will grant if she lives longer than he.
4. If it is so agreed, then it is right that she be entitled to half the property and to all if they have children in common, except she again choose a husband.
5 and 6 are unimportant.
7. But if a man desire to lead her out of the land, then it will be advisable for her that her friends have an agreement that no wrong shall be done to her, and if she commit a fault that they may be nearest in the indemnification, if she have not whereof she can make indemnification.
8. At the nuptials there shall be a mass-priest by the law, who shall with God's blessing, bind their union to all prosperity.
9. Prohibits too near kinship.
* Thorpe, "Ancient Laws," p. 108.
There is much dispute over the meaning of this. It evidently is payment for nourishment, but whether, as Thorpe thinks, it was made to the parents for the nurture of the girl or is a pledge of support by the bridegroom, as Schroeder suggests, is a matter largely of conjecture.
We take from Kemble * an actual marriage contract made about 1016-20.
"The agreement that Godwin made with Byrhtric when he wooed his daughter that is, first, he gave her one pound's weight of gold for that she should choose his will. And he gave to her the land at Street, with all that belonged to it, and at Burwaramesc another halfhundred hides: and therewith thirty oxen and twenty cows and ten horses and ten theowmen. This was promised at Kingston before King Cnut. And whichever of these two lives longer shall have all the property, as well that land that I gave to her as everything.” We see in these documents (1) the German mundschatz or Anglo-Saxon weotuma represented by "what he will give her if she choose his will" and (2) the morning-gift. The latter, like the Saxon morning-gift, was of uncertain amount it, too, belonged only to the childless woman.† In a marriage with children, as Schroeder says, it was superseded by the higher principle of community of property."
The morning-gift is sometimes considered to have been among the Anglo-Saxons mainly, if not exclusively, a provision for the wife in the event of her surviving her husband.§ That the morning-gift should be purely a Witthum or widow's share would be contrary to the analogy with the continental customs || and indeed is not supported by the sources. The morning-gift belonged to the wife during marriage, just as the Saxon morning-gift did, and of course at her husband's death it remained her property. the marriage contract we have quoted notice the provision "and whichever of these two lives longer shall have all the property as well that land that I gave to her as everything."
* Quoted by Young. Codex diplomaticus No. 732. Thorpe "Diplomatarium Aevi Saxonici," p. 312, translates differently, but no mention is made of land given by Byrhtric.
† Schroeder, I., p. 97. Kemble, Codex dip. No. 1288. "Edric had a widow and no child. Then Aelfeh gave her her morning-gift at Cray, etc." "Hist. Rames," 75; Cui cum natura liberos invidisset, sine herede mortis legem subiens conjugi suae superstiti eam reliquit dotis nomine possidendam.
See page 45.
Schroeder. p. 96: "The main purpose of the morning-gift is, however, to furnish a suitable provision for the widow." Also p 128 n. 12, and Laboulaye, 125. Young, 174I See page 35.
It is plain that if at his death the wife was to have all the property, there was no need of this extensive morning-gift unless she could enjoy it during his life. The expressions in reference to morning-gift "it was hers when she first came to Athulf."*"And when we first came together"† would also seem to indicate that it was considered her property before she became a widow. In the compact of Wulfric and the archbishop when he got him the latter's sister to wife (1023) he promised her the land at A and at R for her day, at K for three men's day and at E “ to give or sell to whom to her might be most desirable, for her day and after her day," besides men, gold and horses. No condition of her surviving him is mentioned. In Hist. Rames, No. 75, Dacus and his wife together made a sale of the wife's morning-gift (from a previous husband), and her consent seems to have been the main feature. §
III. Community of Property.-When there were children of a marriagell the morning-gift was superseded, as in Westphalia, by an equal share of the family property.
*Thorpe, Dip. p. 169.
† Kemble, Codex dip. IV., No. 967.
Thorpe, Dip. p. 271.
This is a very interesting document and might well be quoted entire. The owner of Athelintone, dying without children, left his land to his wife "dotis nomine possidendam." The widow, by King Cnut's permission was married a second time, to Dacus, who “prædictæ villæ dominium jure conjugis adeptus." Bishop Aetheric visits them and drives a hard bargain for the land with Dacus when the latter is drunk. The Bishop says: "Si tamen uxorem tuam in eandem tecum sententia feceris convenire." Conjugis," inquit “meæ consensus non deerit." The wife's consent was not lacking. Aetheric sent by night to the king and got the money, but in the morning Dacus, sobered, tried to get out of the bargain The Bishop pleaded the wife's consent: "Etsi te ebrietas præcipitavit in culpam uxor tamen tua, ad quam hereditatis specialiter spectat origo, parcius bibens minus dispendii familiaribus visa est doliis intulisse." The king confirmed the bargain.
And possibly (see Young p. 175) in the later time, even when there were no children, if an express morning-gift had not been granted.
¶ I prefer not to use the word dower in treating the Anglo-Saxon periods because it creates confusion. The Dower of the English Common Law amounting to a life-interest in one-third of the husband's real estate, is probably of later growth. Using dower in its general sense of the widow's share, Young (p. 134, etc.,) says: "The legal dower of Anglo-Saxon law included half the husband's property, real and personal." But as he later says, dos in the Latin sources of the Anglo-Saxon period means always morning-gift, the amount of which was fixed by agreement.