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earliest law on the subject, that of Ethelbert, bears a striking resemblance to the Lex Saxonum.*
78. If she bear a live child let her have half the property if the husband die first.
79. If she wish to go away with her children let her have half the property.
So. If her husband wish to have them, let her portion be one child. 81. If she bear no child, let her paternal kindred have the "fioh "t and the morning-gift.
The wife became co-possessor of the family property with the husband. This is the case also under Athelstan, ‡ Edmund, and even under William I. It is proved by charters and wills made jointly by husband and wife as early as 805-810¶ and at least as late as 1060.** A charter of the latter date is a deed of gift by Thurkil and Aethelgith, his wife, to the church "as full and free as we two possess it after the day of us." In another (1050-1060) "Vir quidam nomine Aednothus-pariter et uxor ejus" (a man and his wife equally) give land to the monastery.
This kind of community of property has survived to this day in England in socage, gavelkind and copyhold lands.‡‡ The county of Kent held fast to its ancient customs through all the vicissitudes of the country, and in the Consuetudines Cantiaes the custom is described as follows:
"Let the goods (personal) of Gavelkind persons be parted into three parts after the Funerals and the debts paid, if there be lawful issue on live. So that the dead have one part and his lawful Sons and Daughters one part and the Wife the third part, and if there be no lawful issue on live let the Dead have the one-half and the Wife on live the other half. And if any such tenant in Gavelkind die and have a Wife that outliveth
* See page 36.
Her property by inheritance or otherwise. Schroeder.
Thorpe, "Ancient Laws," p. 97.
Ibid, p. 108.
Ibid, Laws of William I., p. 27.
¶ Cartularium Anglosaxonicum (Birch) No. 339. This is in Kent.
**Thorpe Dip., p. 591 and others.
Hist Rames, p. 106.
II Scrutton," Influence of Roman Law on the Law of England," p. 64.
him, let that Wife be by-and-by endowed of the one-half of the Tenements whereof the Husband died vested and sized.
"And they claim that if a Man take a Wife which hath inheritance of Gavelkind-let him have half so long as he holdeth him a widower.* "These be the Usages of Gavelkind and of Gavelkind Men in Kent, which were before the Conquest and at the Conquest and ever since until now."
In connection with the custom of Borough English is found "the distinct custom that the widow shall take as dower the whole and not merely one-third of her husband's lands."†
IV. Gift and Inheritance.-Besides the Weotuma and the morning-gift, or the equal share of the property, an AngloSaxon wife owned whatever came to her by ordinary gift or inheritance. Gifts between husband and wife were common. As to inheritances, it has been claimed that a preference for the male sex existed in England, as in some of the other barbarian codes, but the conclusion of Opet, the latest writer on the subject, is that "there is no document showing any incapacity in women to inherit. Not only the Westgoths have equality of sexes, but also the Eastgoths and Anglo-Saxons."
There is no trace of Gerade in England until the so-called laws of Henry I.; and the custom of giving dowries or marriage portions (dot) to daughters is only occasionally met with before the Conquest.§
B. THE WIFE'S POWERS.-The power of the husband over the wife probably corresponded to that of the Germans. In Ine, 57, we read, "If a ceorl steal a chattel and bear it into his dwelling and it be attached therein, then shall he be guilty for his part, without his wife, for she * A unique provision, matching the common one that a woman shall remain a widow
+"Encyclopedia Britannica," Article "Borough English." "Erbrechtliche Stellung der Weiber," pp 79 and 83.
It is held by Young and others that this custom did not exist at all in AngloSaxon times, but in Thorpe, Dip (A. D. 1050), is a will in which a man gives to his wife "all the chapland and the other which I took with her." And Cartularium Anglosaxonicum, No. 640, is a sale by Wiohston of land which his wife's father, Goda, gave him “quia ejus filiam in conjugio habebat." This is about 918-925.
must obey her lord. If she dare to declare by oath that she tasted not of the stolen property, let her take her third part." And in Cnut II., 76, it is said: "If a man bring stolen things home to his cot, it is right that he (the owner) have what he went after. And if it was not brought under the wife's custody, she shall be innocent. But she shall guard the keys, that is, of her storeroom and her chest and her press. If it is brought into one of these places then is she guilty. And no wife can forbid her husband to lay in his cot what he will."
In her own domain she was independent. She probably had some control of her morning-gift* (see p. 44) and of what came to her by gift or inheritance. Certainly she is spoken of as having separate property during the marriage and as disposing of it.†
In a will dated about 958,‡ Aelfgar makes the following bequest: "And I give the land at Illey to my younger daughter, for her day; and after her day to Berthnoth (her husband) for his day if he live longer than she. If they have children then I give it to them. . And I give the land at Cotham to Berthnoth and my younger daughter for their day."
Here we have a gift to husband and wife jointly, and also one to the wife alone, which was hers only as long as she lived, and then became her husband's. See also the will referred to below, in which husband and wife make separate bequests. As late as 1114-30§ land is granted to a man "just as his wife Helewisa held it." In Hist. Rames (63) the monastery conceded land to Robert of Girton and his wife Beatrice, and in addition three acres to Beatrice alone, on condition that she build a house in which the abbot may be entertained when he goes there. (1114-30.)
Kemble even says it appears to have been strictly in the wife's power," p.
+ Thorpe, Dip., p. 202. Kemble, CIX., "We have other cases where lands are divided even during the husband's life."
Thorpe, Dip., p. 507. Illey (Kent).
Hist. Rames, 269.
The husband could not alienate the wife's property without her consent* Sometimes they act together,† sometimes her consent is mentioned‡ and oftener her name appears as the chief actor, his as the consenting party.§ In general the husband had free disposal of his own property so far as concerned the wife. But where a specific morning-gift had not been granted the wife, she had, in law, a right to an undivided portion of her husband's property and regularly appears as a consenting party to all alienations made by him.|| The wife's property was not answerable for the debts of her husband nor his for hers. T
C. THE WIDOW. -The widow was entitled to all her property by gift and inheritance, and to her morning-gift or where this had been superseded by community of property, to one-half the estate, real and personal.
An agreement was often made as to the widow's share (Kentish Betrothal, "what he will give her if she live longer than he"). The most common method, however, of providing for the widow was by will. We have many of these early wills, and are brought very close to the spirit of the times in reading them. Often the husband and wife make the will together, as in one** dated between 805 and 810 the will of Osuulf Alderman and Bearnthryth his wife, in the county of Kent. In another†† (804-829) a reeve and his wife agree that "whichever of them live the longer succeed to the land and all the property." Sometimes the husband leaves all the property to his wife, either for her life‡‡ or absolutely.
In a will dated about 1066§§ a man gives certain lands to his kinsman, and in the same document the wife gives other land
* Young, p. 177.
† Codex dip, 177. Codex dip, 76. Codex dip, 298.
Young, p. 177.
¶ Ibid; Schroeder, 142.
**Cartularium Anglosaxonicum No. 330 and see Thorpe Dip., p. 459.
#Thorpe, p. 462; p. 500.
It Ibid., p. 871, etc.
Ibid. Dip., p. 594.
to her kinsman. The wife and children generally lived together after the husband's death with no division of the property,* in the homestead
"Where the husband dwelt without claim or contest . . . and if the husband, before he was dead, had been cited, then let the heirs answer, as himself should have done if he had lived. And let every widow continue husbandless a twelvemonth, let her then choose what she herself will, and if she, within the space of a year, choose a husband, then let her forfeit her morning-gift and all the possessions which she had through the first husband. . . . And let not a widow take the veil too precipitately. ... And let no one compel either woman or maiden to whom she herself mislikes, nor for money sell her, unless he is willing to give anything voluntarily.†
In these laws of Cnut we see the independent position of the Anglo-Saxon widow. In the earliest law, says Young, widows were under guardianship. But by the time of Aethelred§ they were practically independent. They had the management of their own property and regularly appear alienating it or bequeathing it, sometimes, but only in the case of an undivided estate|| needing the consent of their sons. They could appear before the courts and plead their own cases. In 995 Wynflaed** brought her witnesses before King Ethelred and adduced her own claims with the support of many a good thane and good woman.
We have seen the general position of Anglo-Saxon women; that they were equal partners in marriage, and as widows were independent citizens.
*This is probably what is meant in the Kentish Bethrothal when it is said she is entitled to all if they have children in common.
† Cnut, 73, 74, 75. (A. D. 1017-1035.)
P. 181, Ethelbert 76. If a man carry off a widow not belonging to him, let the mund be twofold.
Thorpe Dip., p. 336. Kemble speaks of this case as follows: "The devisor was a widow and under no protection but her own. Her son was living and claimed some of her property, but it was defeated, and she made a will disinheriting him." ¶ Cartularium Anglosaxonicum, No. 661.
**Thorpe Dip., p. 271.