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The lord's rights of marriage, of wardship, of relief, were fostered by Rufus, for the purpose of raising money. The charter of Henry I. promises reform.* The childless widow shall have her dower and maritagium, and shall not be given in marriage against her will. If she has children, she shall keep her dower and maritagium "dum corpus suum legitime servaverit." And either the wife or some relative who more justly should be, shall be the guardian of the children. In practice the widow probably lost the right of guardianship very often.†
Wives have separate property at least as late as 1127. A charter of about that date‡ gives notice that Richard Fitz Pons had conceded Aston to his wife Maud in fee. The purport of the deed, says Round, is to place Richard's wife in his own shoes as a tenant of the Bishop of Worcester. A charter of about 1114-30 concedes to a certain Ralph land at Brunham "sicut Helewisa uxor sua eam tenuit."S
"The queens of William the Conqueror, Henry I. and Stephen," says Bishop Stubbs, || "play a considerable part in the history of their husbands' reigns. The wives of the first two of these kings received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and which were frequently composed of escheated honors: they had their own chancellors; they acted occasionally as regents or guardians of the kingdom in the absence of the king, and with authority, which if it did not supersede that of the justiciar, had at least an honorary preference."
We cannot tell precisely when the old customs came to an end and the new ones took their place. The modification must have been a gradual one, extending over all the years
* Charter of Liberties I., 3, 4.
† Pipe Roll, H. I., p. 88. Roger de Capuilla, etc.
↑ Round. "Ancient Charters," 13.
Hist. Rames, No. 269.
"Constitutional History of England," I, 342.
from William the Conqueror to Glanvill. There were struggles on the part of the Anglo-Saxons to keep their ancient ways; and they met with a promise of success from Henry I.; but as the military tenure of land increased, the powers and rights of women diminished. They could not perform military service. The feudal lord derived great profits from his wards and it was to his interest that the children should have a larger share of a man's property than a widow. Again, the husband often had to perform feudal services for maritagium of his wife ; * hence he had certain rights in the maritagium. In such ways the feudal system tended to curtail the property rights of married women and widows. Whether the same results would have come about as a result of indigenous feudal tendencies had the Norman Conquest never taken place, may be doubted. That some of the provisions found in Glanvill were of Norman origin seems to me extremely probable.
Mr. Freeman, indeed, claims that except in a few cases there was no derivation of English law from the Normans.† But in the case of dower ‡ a comparison of the Norman and Anglo-Norman customs shows an unmistakable agreement and at the same time a radical divergence from the AngloSaxon customs.
Let us see what were the traditions and customs of Normandy. The earliest of the Barbaric Codes is that of the Salic Franks, who occupied that part of France in which Normandy was afterward situated. According to its provisions women were entitled to one-third of the joint acquisitions of the family.§ The Ripuarian law which also influenced the Norman customs, gave a widow fifty shillings and one-third of the joint acquisitions. These customs endured
Glanvill, VII., 18.
+ This view of the Norman influence as very slight in England is well criticised by Mr. Round, in the articles before referred to.
And also, I think, of the capacity in women to inherit, although I have not made an especial study of this question.
Vide supra, p. 36. Schroeder, op. cit., p. 90, etc.
in Normandy through the centuries* and were practically the same in the twelfth century. They were reduced to writing in their later form at the close of that century † or the beginning of the thirteenth, very shortly after the date commonly assigned to Glanvill's work, and are known as the Tres-ancien Coutumier of Normandy.
The chapter on dower provides that the widow shall have her dower up to a third part of the inheritance of the donor excepting the main dwelling-house, which shall remain to the heir. The widow is not the guardian of the "orphan heir," but the lord of the land is. This Tres-ancien Coutumier, says Tardif, "deserves to draw the attention of historians of the English law, who will find in this text, about twelve years later than Glanvill's, a statement of the Norman customs free from any Anglo-Saxon elements.”
When we compare the provisions in Glanvill on dower and so forth with the Tres-ancien Coutumier, we find them sufficiently similar § to warrant the inference that it was largely Norman influence which brought about the change from the Anglo-Saxon law of community of property to the common law of dower.||
That this Norman influence was actually at work before Glanvill's time is shown in the so-called laws of Henry I. This compilation, although a private and unauthorized
* Glasson "Histoire du droit etc. de l'Angleterre" II., p. 286 et seq., says the customs of Normandy go back in general to the German laws, especially that of the Salic Franks and the Ripuarian.
Tardif "Coutumiers de Normandie," Introduction, p. IX. et seq. 1881.
III., I Vidua dotem suam habebit usque ad terciam partem hereditatis donatoris excepte capitali masnagio. (Cf. Glanvill, capitale mesnagium) quod heredi remanebit. Si vero aliud masnagium datum fuerit vidue in dotem illud habebit preter turrem vel castellum. Cf. Magna Charta addition to c. 7 in 1216; nisi domus illa sit castrum.
Glasson, V., 2, 286
"These principles of the Anglo-Normau jurists are also those of the Ancient Custom of Normandy."
Bishop Stubbs argues (Cons. Hist. I., 437) that in general we have no proof that the institutions of Normandy are any more ancient than the similar institutions and customs of England; but in the case of dower we know that the Frankish tertia prevailed in Normandy from the earliest period. Consequently the conclusion is forced upon us that, finding the Anglo-Saxon widow's share of one-half reduced under Norman rule to one-third, the latter amount is of Norman origin. See Young.
work, composed in the time of Henry I.* is nevertheless useful as showing the foreign influence. The chapter on dower and morning-gift, although corrupt, is taken from the Ripuarian law and thus shows the foreign influence affecting the position of women.‡
The Norman customs of dower probably became somewhat general in England in the middle of the twelfth century, but, as Digby § says, in the county courts and courts of the lords of manors the variety of customs was so great that Glanvill declined to attempt a statement of them. The tendency of the Curia Regis was to adopt a uniform system (such as we have in Glanvill) and override local customs. Kent, London and York were strong enough to keep their ancient ways. Sir Frederick Pollock || says: "It was the general and uniform jurisdiction of the King's Courts... that achieved the work of breaking up the diversity of local customs and fixing the new pattern of English institutions." So to Glanvill, as chief justiciar of the King's Court, we may attribute a large influence in determining which of the varying customs should prevail.
Such a provision as that of Glanvill¶ that a woman shall forfeit her dower if she opposes her husband's management of her property, shows a very exceptional state of things; the Ancient Norman custom says: "She shall not be bound by the action of her husband whether she has consented to
* Liebermann in Forschungen zur D. Gesch., vol. 16.
+ See Thorpe, note to law of Henry I. Laws of Henry I., 22. Si sponse virum suum supervixerit, dotem et maritacionem suam, cartarum instrumentis vel testium exhibicionibus ei traditam perpetualiter habeat et morgangivam suam et terciam partem de omni collaboracione sua praeter vestes et lectum suum and compare the Lex Ripuaria quoted on p. 35.
↑ Sir Fred. Pollock in his lecture on Sir Henry Maine gives us the following condition to satisfy in arguments like the present: "We have to beware of being satisfied with our explanation of any effect until we have traced it, not merely to a possible cause, but to a cause of which we can prove the existence and watch the operation."
"History of Law of Real Property," p. 57.
"Land Laws," p. 51.
1 Glanvill VI., 3, 2.
the invasion of her dower and maritagium or not.
"'* And the severity of Glanvill's provision that dower shall be onethird of what the husband possesses at the time of the marriage, no matter how much the husband and wife might afterward acquire, was soon found to be more than the English people would bear, for in the amendments made by Henry III. to Magna Charta in 1217 it is provided that the widow shall be endowed of one-third of all the land which the husband possessed in his life. By the time of Littletona husband was allowed to endow his wife with more than one-third, even with the whole of his land if he chose. S
* Tres-ancien Coutumier, IV., I. Si vero sponsus vidue maritagium vel dotem invadiaverit uxoris suae, ipsa volente vel forjurante, precepto mariti sui non tenebitur sed mulier illa habebit et integra sicut ei data fuerunt ante ostium ecclesie. † Stubbs "Select Charters," p. 345. Assignetur autem ei pro dote sua tertia pars totius terrae mariti sui quae sua fuit in vita sua nisi de minori dotata fuerit ad ostium ecclesiae.
In Edward IV.'s reign.
To show the fully developed Common Law of England in its relation to married women's property I quote from Schouler, on "Husband and Wife," (p. 87). "The husband yields to his wife no participation whatever in his own property, whether acquired before or during the continuance of the marriage relation, except a certain right of inheritance of his goods and chattels, of which he can generally deprive her by his will and testament, and also dower in his real estate, which is her only substantial privilege. In return for this she parts with all control, for the time being, over her own property, whensoever and howsoever obtained, by gift, grant, purchase, devise or inheritance; gives him outright her personal property in possession and allows him to appropriate to himself those outstanding rights which are known as her choses in action, or all the rest of her personal property: parts with the usufruct of her real estate, creating likewise a possible encumbrance upon it in the shape of tenancy by the curtesy, and finally takes, if she survives him, only her real estate, such of her personal property as remains undisposed of and unappropriated, with a few articles of wearing apparel and trinkets, called paraphernalia. Some recompense is afforded to the wife for the loss of her fortune in the rule that her husband shall pay her debts contracted while femme sole . . . and while coverture lasts he is liable for all the just debts incurred in her support. He has even been held guilty of murder in the second degree when he has suffered her to die for want of proper supplies. . . . In respect to her disability to contract, the wife may be considered worse off at the common law than infants. It is held in Massachusetts that a town may supply a wife who is in need of relief through the neglect of her husband and then sue him for necessaries suitable to the condition of a pauper and no more." It was recently held in Connecticut (42 Conn., 546, that when a man was sent to jail for four months for an assault upon his wife by which she was disabled from work and he took with him all his money, she was justified in selling in her extremity for a reasonable price, a cooking stove belonging to her husband for the strict purpose of procuring the means for the purchase of necessaries.