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husband and wife, is always a partnership in fact, a partnership which is the more absolute as the consorts are more united. In presence of this reciprocal love, in presence of this oneness of life (the greatest happiness which God has given to man on this earth), of what avail are the artificial barriers of the law ? and how, when individualities are merged, could properties remain distinct ? Death, by brusquely changing this state of things, smites the widow in her affections and in her fortune at the same time, and it is then that a well-conceived legislation espouses the cause of her, who, in her sad position, is unable to defend herself, and, while conserving the interest of the husband's family, shields his widow from those sudden revolutions of fortune, the after-effects of which always fall upon society. By the attention paid by any code to vidows, you may judge of its spirit; and it is an invariable rule, that the more civilisation progresses, the more the rights of women increase. And, in fact, apart from the interest of society, it would seem that in the family circle there can be no claim paramount to that of the wife, and that it is only exact justice to divide the patrimony between the mother and the children.
In this difficult problem of settling two conflicting interests, the Roman law signally failed: the wife was sacrificed to the family. To give to the widow who had been in manu, a mere child's share, was often to rob her of a portion of what she brought to the common stock, to the prejudice of her agnates, and, on the other hand, to exclude the wife from the husband's family, as was done under the separate estate system, and only to allow the widow what she brought, was to give the lie to the fine definition of marriage which the Roman Jurists have given us, it was to sacrifice the happiness of a community of existence by creating within the household distinct interests. There is nothing to be added to the noble and often quoted words of Columella, which paint in such lively colours how much they suffered at Rome from the operation of that system which made it the wife's duty to hold herself aloof from that house, in which she had no stake, and by a singular paradox, seemed, in marriage, only to keep in view a separation. He says
“Formerly there was the greatest respect, mingled with concord and zeal, and the most beauteous of women studied with an ardent emulation how to make her husband's affairs prosper.
Nothing of a divided allegiance was seen in the housenothing that either the husband and wife could say belonged to their family exclusively—but both worked together in harmony, so that the indoor industry of the wife was of as much account as the outdoor occupations of the husband.”
The barbarian customs were far superior to the Roman laws in this respect, and breathed a kindly and liberal spirit.
Independently of the morgengabe and the dower, they guarantee to the widow a share in the property acquired by the joint industry. In the law of the Ripuarian Franks it is the third part of all they have co-operated in earning." That the Salic law had similar provisions may be inferred from a form given by Marculfus, and from some deeds which have come down to us.
The code of the Bavarians gives to the widow a child's share. If there are no children the wife has half the acquired property, but for life only.
The Capitularies which give to the wife the third of the joint earnings, as did the Frankish laws, seem to resemble the code of the Bavarians, in giving a single child's share in the other estates of her husband.
The code of the Visigoths likewise gives a child's share to the widow, for life only; and, besides, lets her take, in the acquired property, a share proportioned to her marriage portion—a singular provision, which does not reappear in any other code subsequent to the barbarian invasion.
The laws of the Thuringians, the Alemanns, and the Frisians do not speak of this share of the wife in the acquired property, but we must not conclude from this silence that she was excluded ; on the contrary, I think we may argue, from the Frankish codes to the codes of the Thuringians, and from the code of the Bavarians to that of the Alemanns, as each brace of customs belongs to the same family, and the one constantly supplements the other. The Lombard code acknowledges the metha and morgengabe only; but an ordinance of Astulphus gives permission to the husband to leave to his wife a half for life, subject to revocation if the widow marries again. This estate for life is not obligatory like "the thirds” of the Frankish codes; it is only a voluntary donation on the part of the husband - it is the exception, not the rule. In the Lombard laws you can always trace the influence of Roman principles.
The Anglo-Saxon customs are highly favourable to the widow, and allow her, when she has children, half of her fortune. This proportion of a half crops out in the continental) Saxon code, whose provisions deserve to arrest our attention.
“1. The principle of dower is of two kinds; the Eastphalians and Angrarians have it, that if a woman has brought forth children, she shall have the dower which she received at her marriage, so long as she live, and she shall leave it to her children.
“2. With the Westphalians, when a woman has given birth to children, she loses her dower; if otherwise, she enjoys her dower to the end of her days; aster her death let her dower revert to the donor, or if he is dead, to his heirs."
CONCERNING ACQUIRED PROPERTY. "1. Or that which the husband and wife have obtained by their joint labour, let the wise have half; this is the Westphalian rule. The Eastphalians and Angrarii give her nothing, but lay it down that she must be satished with her dower."
Thus, the legislation of the two Saxon tribes had this in common, that the wife who is childless keeps her dower and holds it for life. But when there are children born in wedlock, the dower, according to the Eastphalian rule, becomes the wife's property, so absolutely, that not only her children, but if her sons (sic) die before her, her relations inherit from her in preference to the husband's line. On the contrary, the Westphalians deprive the wife who has children of her dower ; but, by way of compensation, she gains half of the after-acquired property; the partnership commences when the birth of a child has given to the . consorts a common interest.
Considerable interest attaches to these provisions of a barbarian law, says the learned Herr Gaupp, * because they contain the germs of the two systems of law which divided Germany between them during the
The rule adopted by the Eastphalian code is that which the Sachsenspiegel has preserved ; and, on the other hand, the share of the acquired property given by the Westphalian law, is the partnership system such as still prevails in Westphalia. Lubeck, which borrowed its legislation from the little town of Soest, is the most perfect expression of the Westphalian law, as Magdeburg is the most complete model of the Eastphalian law, and these two Mother Customs spring originally from the Saxon law.
This is a clear proof that the laws of the middle ages were neither the product of chance nor violence, but the natural development of the new germs which the barbarians introduced.
$ 7.—THE CONSORTS' POWER OF INHERITING FROM EACH OTHER.
The third or the half of the husband's property was the share given by the barbarian laws to the wife when she competed with the children or the relatives of the husband ; but what were her rights when the husband left no heirs ; did she take precedence of the State Treasury ? I do not see any provision to this effect in the Teutonic customs, except in the Bavarian code, the interpretation of which is doubtful.
In the subsequent Feudal period, the lord became the heir, in preference to the widow, rather, however, as a logical result of feudal sovereignty than of Teutonic principles, which I think by no means required this exclusion.
In the twelfth and thirteenth centuries, the system of co-partnery having become general in the town and country, brought about as a necessary consequence the reciprocal right of succession between husband and wife. The Roman law achieved this triumph in those systems of
* The author of “The Laws and Constitution of the Old Saxons," written in German.-TRANSLATOR.
law which had not admitted so equitable a
With us, for instance, it was judicial decisions which, when the Customary law was mute, caused the reciprocal right of inheritance between man and wife to be adopted, in the case foreseen by the Imperial edict (Unde vir et uror).
This reciprocal right of inheritance was maintained in the Visigothic codes which remained faithful to the benignity of Roman legislation in its latest phase.
The Visigothic law, which is borrowed from the Theodosian code, says
“Let the husband and wife inherit from each other, when no agnates can be found within the seventh degree of propinquity.”
( To be continued.)
THE FISHERMAN'S DAUGHTER;
THE SHIPWRECK. LEAVING Donald and Mary to their fate for a while, we must now change the scene to the narrow strait, to the south of St. George's Channel, which separates Ireland from Scotland. For twenty-four hours a gale of the autumnal equinox had prevailed here, to such a degree of violence, as to prevent a small merchantman which was endeavouring to enter a harbour on the Scottish side from effecting her purpose.
The moonless night closed in amidst a darkness so profound as might seem palpable-a very wall of blackness, as it were-environing him who stood amidst it, and advancing ever closer upon him. There was for a short while a lull in the storm, only to rage again with increased fury, which appeared to dissipate the blackness, but threatened the voyagers only the more in another form of the elements. The direction, too, of the wind changed as the day broke, and the gale, increased to a hurricane, forced the little craft far from her haven, towards the rocky shore of Arran. For miles she had thus drifted before the storm, when, towards evening, a person hurrying along the beach of the island reported to those he encountered at the hamlet whither he was bound, that a vessel in great distress was off the coast, and fast drifting, it was to be feared, towards the shore. Such disasters were no uncommon sights here, for even then the trade between the largest western city of Scotland, and the West Indies and America, as well as other quarters, was considerable, while it often happened that vessels bound for England or Ireland were driven out of their course and fain to seek such shelter as this part of the island afforded, or were, like the one in question, impelled upon it to their destruction. And, alas ! little was in the power of the inhabitants wherewith to help them; they had neither coast-guard, nor Manby's apparatus, far less life-boat, and the few seamen amongst them were seldom at home. Still they were no wreckers, though the poverty of some might have afforded excuse for being such, and their kindly sympathies were qụickly excited by spectacles like this, though they rather injured than aided them in arranging the few ropes and getting ready one of the cobles that lay about. The number of lookers-on rapidly multiplied, whose impetuosity of movement and loudness of vociferation increased with every fresh addition, including both women and children, though it seemed marvellous how they could keep their