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boroughs, aristocratic control, and multiple representation. † The system of a double legislature had an origin and development in America which separates it entirely from the analogous system in England, springing as it did from the very structure of the colonial assemblies, and excluding from its organization every form of feudal privilege which was the principle upon which the division of the two houses in the mother country was ultimately based. The very idea of a written constitution itself, which recognizes the government as the legally established organ of the sovereign power, grew out of those peculiar circumstances in which thirteen dependent colonies, deriving their political powers from expressed grants of the sovereign crown, were transformed into thirteen independent governments, deriving their powers from the expressed will of the sovereign people. The sovereignty of the people was substituted for the sovereignty of the crown; and a written constitution took the place of a written charter as the instrument which determined the powers of the government and secured the rights of the subject.
To claim that the American political system has a distinctive history and character of its own does not involve any disparagement of the British constitution. Having a common origin in the instincts and institutions of the Teutonic race, having a common basis in the principles of Magna Charta, they have, since the seventeenth century, presented two distinct phases in the evolution of democratic ideas. In the one case we see republicanism adjusting itself to the existing forms of an aristocratic and monarchical government. In the other case we see republicanism casting aside these forms and substituting those which are believed to be more in harmony with the republican spirit. It is one thing to regard the American colonists as devoted to those chartered
*The first constitution of Virginia provided that a city should cease to send delegates when its population became less than one-half of that of any county. (Charters and Constitutions, II., 1910.)
The first constitution of North Carolina provided that no person should be entitled to vote for both town and county representatives. (Ibid, II., 1511.)
rights which many centuries before had been extorted from King John. It is quite another thing to regard them as reproducing, either consciously or unconsciously, the governmental forms under which those rights were for a time ignored and trampled under foot. The right to a share in their own government, the right of trial by jury, the right to say how far their property should be given to public uses, they still clung to while building up their own primitive States. The elements of the British constitution, which the American people claimed as their inheritance, were not so much the customary forms which entered into the structure of the British government as those chartered privileges which might serve to protect them from the supervision and interference of autocratic power. What they most desired was to be let alone and to work out their own political salvation. And it was precisely when and where they were least hampered by foreign control, and least influenced by foreign models, that they developed those political features which have become the most distinctive characteristics of the American constitutional system.
University of Rochester.
WILLIAM C. MOREY.
MARRIED WOMEN'S PROPERTY
ANGLO-SAXON AND ANGLO-NORMAN LAW AND THE ORIGIN OF THE COMMON-LAW DOWER.
As the Anglo-Saxons were Germans on the continent. before they were Germans in England, we shall need to preface our inquiries into Anglo-Saxon laws and customs by a brief survey of the laws and customs of their most nearly allied continental kinsfolk.
In the first recorded laws of the German tribes, we find that married women had a legal right to property of their own. Whether in the earliest times the German family was so purely patriarchal that the husband and father had absolute power over the lives and property of all members of his family, as in early Rome, or whether German women held a more exalted position than they have ever held since, and not only enjoyed the honors and perquisites of mother-right" but transmitted them solely in the female line, is a much-mooted question* not in my purpose to discuss. It is certain that the earliest recorded German laws, written down at different periods from the fifth to the eighth century, though varying greatly in their provisions, show married women in the possession of definite property rights, greater indeed, and more widely extended than women were to know again for centuries. In some limited customs, to be sure, the early régime of community of
* See L. Dargun, "Mutterrecht und Raubehe," etc. J. Bachofen, " Das Mutterrecht." Starcke, "Primitive Family."
+ Glasson (Nouvelle revue historique, 1885, p. 590) gives dates as follows: The Salic law the oldest, then the Ripuarian law in the middle of the fifth century, the Burgundian in the sixth, Visigoth and Alemannian in seventh, and, under Charlemagne in the eighth and ninth, the Saxon and Thuringian.
property lasted through all vicissitudes, but in general the middle ages show a retrograde movement until the tide again turned, and with the decay of feudalism, the rise of Protestantism, and the new spirit of the time, the continental nations resumed the liberal treatment of women in regard to property which characterized the early days. We shall see how different was the course of events in England.
Of these early German laws the most nearly related to the Anglo-Saxon are the Frisian and Saxon, and among the latter, those of Westphalia. I will undertake a brief description of the laws relating to women, especially in the Lex Saxonum, which, as was said before, was probably reduced to writing at the close of the eighth century. I
A. FORM OF MARRIAGE.-Marriage still kept its ancient form of a sale,§ by which the husband paid a price for his wife to her father or guardian. Grimm|| and others consider that a real sale took place in which the woman was considered as property. There are examples of the use of the expression "buy a wife" as late as the fourteenth and fifteenth centuries. In these later times the price which the groom paid to the wife's father was paid for the transfer of his mundium or guardianship over his daughter, and not for her person. It is considered by many that this was the case even in the earliest times. Professor Young** says: "Whether marriage was ever an actual sale of the woman's person, treated as a chattel, may be doubted." "It is certain that in historic times the thing transferred was not the person of the woman, but the right of guardianship."
* Schroeder, "Geschichte des ehelichen Güterrechts," II., 3 Vorrede X.
† Maine, "Essay on Married Women's Property," and H. Adams, Historical Essays," p. 36.
The editor of the Lex Saxonum, in Monumenta Germaniae Historica, assigns A. D. 777 as the most probable date.
In the Lex Saxonum to marry is to buy a wife-" uxorem emere ; to betroth, to sell a wife-" uxorem vendere."
"Deutsche Rechtsalterthümer," p. 420. Schroeder op. cit., II., p. 325, but in his
first volume Schroeder speaks only of selling the guardianship.
Grimm op. cit., 421.
林: Family Law" (in "Essays in Anglo-Saxon Law," edited by H. Adams) p. 164.
The price to be paid for the woman, as fixed by the Lex Saxonum, was 300 shillings,* an amount equal to the compensation paid her guardian for violating her person or in any way disturbing his rights over her. This bride-price, or mundschatz, soon came to be looked on as a present to the bride herself, and was handed over to her by her father. It is uncertain whether this was the case as early as the Lex Saxonum or not. According to Schroeder,† who has made the most extended study of the subject, the Saxon wife had no claim on the mundschatz. In the Burgundian law the wife had full control of a certain part of it.‡
B. THE DIFFERENT PARTS OF A MARRIED WOMAN'S PROPERTY.-Mundschatz and Morning-gift.-The mundschatz, or bride-price, was the first of a wife's possessions among some of the Germans; but in the Saxon law, if we follow Schroeder in denying that she had a share in the mundschatz, the first part of a wife's property was the morning-gift made to her by her husband on the morning of the nuptials. Originally this was entirely distinct from the mundschatz, but the two soon became confused, and finally merged into one. Opinion is divided on the subject of the identity of the various provisions made for the wife at different times and places, and it is extremely hard to distinguish between bride-price and morning-gift, or even to tell to which of the two the Latin word dos in the laws applies.
The dos of the Lex Saxonum was probably the morninggift, but we do not know its amount. In the Salic and Ripuarian laws it was one-third of the joint acquisitions of the family, unless otherwise agreed on, and in the latter law, in addition, fifty shillings.§ The morning-gift was usually agreed upon at the time of the marriage, and we have many examples of the dotis libellum, or formula, in * Uxorem ducturus 300 solidi det parentibus ejus.
+ Op. cit., 48.
Ibid I., 46.
Lex Ripuaria, 372; Si virum supervixerit, 50 solidos in dotem recipiat et tertiam partem de omne re quam simul conlaboraverint, sibi studeat evindicare vel quicquid ei in morgengeba traditum fuerat, similiter faciat.