If now we pass over the first century after the Norman Conquest and inquire what the property rights of women were in the reign of Henry II. (1154-89), we shall find that a great change has come about. We are fortunately able to determine exactly the legal position of women at the later time. We have a description of the laws and customs of England (Tractatus de legibus et consuetudinibus regni Anglia) which is ascribed to Ranulf Glanvill, the great lawyer and justiciar of the latter part of Henry the Second's reign. Ve will first ascertain the property rights of married women according to Glanvill, and then look back into the years between Glanvill and the Conquest with a view to tracing the origin of the vast change we shall find. If we succeed in any degree in accounting for the state of things described in Glanvill, we shall also account for the origin of the disabilities of women in the later Common Law of England, for the rules laid down by Glanvill continued in force, with few modifications, until our own day. The community of property known to the Anglo-Saxons has disappeared in Glanvill's day and the morning-gift or dos ad ostium ecclesia, the dower of common law, has taken its place. It is now only a third of the husband's real property at the time of the marriage and cannot be increased even by agreement,* but may be less if so agreed. The power of testamentary disposition of real property has disappeared, † but a man could dispose of one-third of his personal property by will, one-third going to his wife and one-third to the heir. If he had no wife he could dispose of one-half; if there were no children, he could dispose of one-half. The main dwelling-house could not be given as dower, but belonged to the heir. The widow's share, then, was the dower of one-third the real estate of which her husband was seized at the time of the marriage and one-third of his personal property in addition. The dower interest was only for life, and was restricted to a third of what her husband possessed when she married him, no matter how much he had acquired afterward.* * Glanvill, VI., I. Dos duobus modis, etc. † Digby, "Real Property." Glanvill VII., 5. ‡ Glanvill VII., 5, 4. During the marriage she had no rights over her dower.† He manages all her property and can give away or sell her dower, because she must obey her husband in this as in all things not contrary to Divine law. Moreover, she must not interfere with him in his management of her dower. he wishes to sell it and she remonstrates, and nevertheless it is sold and bought, on her husband's death she cannot claim it of the buyer if she confesses, or it is proved against her that she had opposed her husband at the time of the sale.§ If she did not oppose she had a certain claim on her husband's death to whatever part of her property he might have alienated.|| If Even after her husband's death she had to go through a troublesome legal process to obtain possession of her dower, unless it was vacant. If the heirs disputed her claim she had to find a champion who would uphold her rights in a duel.** Laboulaye remarks that this was the method of the Alemanni in the sixth century strangely surviving in England in the twelfth.* * Glanvill VI, 2. † Glanvill VI., 3. Scientum est quod mulier nihil potest disponere circa dotem suam tempore vitæ mariti; quia cum mulier ipsa plane in potestate viri sui de jure sit, non est mirum si tam dos, quam mulier ipsa et cæteræ omnes res ipsius mulieris plene intelliguntur esse in dispositione viri ipsius. ↑ Glanvill VI., c. 3, 2. Potest autem quilibet uxorem habens dotem uxoris suae donare vel vendere vel alio quo voluerit modo alienare in vita sua, ita quod tenetur uxor sua in hoc, sicut in aliis rebus omnibus quae contra Deum non sunt, ei assentire. Adeo autem tenetur mulier obedire viro suo, quod si vir ejus dotem suam vendere voluerit et ipsa contradixerit, si postea ita fuerit vendita dos et empta, mortuo viro suo non poterit mulier dotem ipsam versus emptorem petere si confessa fuerit in curia vel super hoc convicta quod ea contradicente viro suo fuerit dos a viro suo vendita. ¿See last note. | Glanvill VI., 13. Glanvill VI., 45, etc. Littleton says: "Because there was no penalty affixed to Magna Charta 7, the heir might drive the wife to sue for her dower and so a man was later allowed to assign certainty of dower and she could enter at once. ** Glanvill VI., 11. Mulier enim efficaciter nullum placitum movere poterit versus aliquem sine warranto de Dote sua. Si itaque ipse hæres totum jus ipsius mulieris negaverit. poterit inter eos ad duellum perveniri. A married woman could not make a will disposing of her husband's property† without the consent of her husband. ‡ "Nevertheless," says Glanvill, "it would be kind and very honorable in a husband to allow his wife her rational part, up to the third part of his property which she would have received if she had outlived him, that she might dispose thereof, which many husbands are accustomed to do. Husband and wife were one person, and that person was the husband." He might represent her before the courts, § and she was bound by his management even after his death. "While she was in the power of her husband, she was not able to contradict his will in anything and so was not able against his will to look out for her own rights. Nevertheless, what had once been decided in the court of the lord ought to be firm and lasting," so she could not bring up a matter which had been wrongly settled in her husband's life. As Laboulaye remarks: || "The English laws have kept the harshness of the primitive barbaric codes. The marital power has even singular exaggerations, the husband has the right to alienate the real property of his wife without her consent." The Frenchman contrasts the English system most unfavorably with the French and German systems* which never attained quite the same degree of harshness toward women, and which mitigated these feudal disabilities after a comparatively short time, whereas the English law was scarcely modified until the present generation. * Laboulaye, p. 276. † Which included her own. ‡ Glanvill VII., 5. Mulier etiam sui juris testamentum facere potest; si vero fuerit in potestate viri constituta nihil sine viri sui autoritate facere potest etiam in ultima voluntate de rebus viri sui. Uxor quoque Potest autem pater ita loco suo filium pro se ponere et vice versa. maritum. Cum quis itaque maritus positus loco uxoris suae in placito de maritagio vel de dote ipsius uxoris aliquid amiserit vel remiserit de jure ipsius uxoris...num quid poterit mulier in tali casa aliquid juris ipsa inde iterum placitum movere an tenebitur omnino factum viri sui post mortem ipsius tueri? Non videtur autem quod per factum viri sui debeat mulier in tali casu aliquid juris amittere, quia dum fuit in potestate viri sui in nullo potuit contradicere ejus voluntate, et ita non potuit contra voluntatem viri sui in jure suo prospicere, sed dicitur contra; ea quae in curia Domini regis gesta sunt rata et firma esse convenit. In Bracton (under Henry III.) we find some of the famous expressions of the English law regarding women: "Vir et uxor sunt quasi unica persona, quasi caro una et sanguis unus." (V. 5, C 25). "Omnia quae sunt uxoris sunt ipsius viri." (II., 15.) Bracton has often been quoted in courts in this country. P. 276. ... Even in regard to inheritance, we find the Anglo-Saxon system supplanted in Glanvill by a new one which excludes women: "If any one has a son and heir, and besides him a daughter or daughters, the son succeeds to the whole; because in general it is true that a woman never takes part in an inheritance with a male, unless a special exception to this exist in some particular city by the ancient custom of that city."† We find in Glanvill the custom of dowry or dos in the Roman sense "that which is given to a man with his wife, which is commonly called maritagium" ("frank-marriage"). This belonged to the husband during the marriage, and he had a life interest in it at his wife's death, if a live child had been born to them§ (tenure by the curtesy of England"). If the husband died first, the widow received the maritagium. This, as well as her dower, was afterward expressly confirmed to her in Magna Charta|| as it had been in the charter of Henry I. The widow was no longer the guardian of her own children. The nation had evidently struggled to preserve this right, as appears by the charter of Henry I., in which it is confirmed. She was not under guardianship herself, except that she needed the consent of her lord to a second marriage, otherwise she forfeited her dower. * See also Phillips, "Rechtsgeschichte," 179, and Schmid, "Gesetze der Anglosachsen," who says the English law is more German than the German iwelf. † Glanvill VII., 3. Glanvill VII., 1. Glanvill VII., 18, "filium vel filiam clamantem et auditum infra quatuor parietes." Magna Charta 7, also see addition in 1217. Stubbs, "Select Charters," p. 101. ORIGIN OF THE COMMON LAW DOWER. William the Conqueror made no sudden changes in the customs and laws of England as he found them in 1066. In Domesday Book we find women holding lands,* not only as widows, but holding separate estates during the life of their husbands, as they had done in Anglo-Saxon times. certain Asa,† for example, "held her land separate and free from the dominion and power of her husband Bernulf, even when they were together, so that he could neither make a gift nor a sale of it or alienate it at all. After their separation, she retired with all her land and possessed it as mistress (domina)." We find the case of a widow who holds her husband's whole estate as an under-tenant. In case of a theft, the wife of the thief receives half his property and the lord half. In fact, William seems not only to have promised to uphold the laws of Edward the Conqueror, but to have actually done so, at least in the case of women's property rights. But, as Mr. Freeman says, || 'William, I. did not sweep away our laws, our customs or our language, but the presence of the stranger king and his stranger followers modified law, customs and language in a way which has left its traces to this day." Mr. Freeman's well-known view is that the reign of William Rufus was most prolific of general change. The Chronicler says: "The Red King would be ilk man's heir, ordered and lewd." Whether "under the malignant genius of Ranulf Flambard" or not, an oppressive system arose, which derived iall holdings from the consent of the king on condition of service, and made the king the guardian of women and children. Wilts., 74, and many others. † Domesday, Linc., 373. Quoted by Freeman, "Norman Conquest," V., 801, VI. "Norman Conquest," V., 338. For discussions of this period, Mr. Freeman's views of which are severely criticised, see Freeman, "History of William Rufus," Vol. I., 332, etc. Stubbs, "Const. Hist." L., 290, and especially Round in "The Introduction of Knight Service into England," in English Hist. Review, July and August, 1891. |
