§ 2. OF THE HUSBAND'S AUTHORITY AND THE ADMINISTRATION OF THE PROPERTY DURING COVERTURE.

I have not much to say on the husband's authority. The husband's mund was mitigated by the progress of Christian ideas, the wife's individuality was emphatically recognised by the law; yet the wife was always considered as a minor, who, during coverture, ought to remain under the protection and subject to the authority of the husband.

The English laws preserved the rigour of the primitive barbarian laws; husband and wife were considered as a single person in the eye of the law, but, as an American author (Timothy Walker) has justly observed, that person was the husband.

The husband's omnipotence led to singular exaggerations; for instance, the husband had the right to dispose of his wife's real estate without her consent; the wife, it is true, had the right to cancel this alienation after her husband's death, by means of the writ cui in vitâ ; but how much wiser were the French and German customs, which exacted the wife's consent, and thus avoided perils and needless circuitousness.

As a logical consequence of her subjection, the wife could not make a will without the consent of her husband, and this rigour of the common law, confirmed by a statute of Henry VIII., still subsists in the English laws, almost as in the time of Glanville.

[The present state of the law relating to the right of married women in England and Ireland to make a will, is thus stated in Wharton's "Law Lexicon," second edition, 1860, under the title of "Separate Estate":"While the common law does not allow a married woman to possess any property independently of her husband, yet, when property is settled to her separate use and benefit, equity treats her in respect to that property as a feme sole, or unmarried woman. With regard to personalty, whether in possession or expectancy, a mere limitation of it to her separate use will enable her in equity to dispose of it to the full extent of her interest, either by deed or will, unless she be restrained from doing so by the instrument giving it to her. As to the rents and profits of realty, a gift of them to, or in trust for the wife, to her separate use, enables her to dispose of them also as a feme sole. But a limitation of realty to her in fee for her sole and separate use, without expressing more, will not enable her to dispose of it during the marriage, otherwise than under the 3 & 4 Will. IV., c. 74, because no power of disposition having been given to her, she can only dispose of it by the mode prescribed by the general law. And she cannot make a will of such realty. But a power is frequently given to the wife to dispose of her own or her husband's real or personal property, notwith.

standing her coverture." A will made in pursuance of such a power, and subject to its limitations, if any, is valid without the husband's consent.-TRANSLATOR.]

But as an abuse, by its very exaggeration, brings about its own rectification, marital despotism has brought about in England, as formerly in Italy, a system where the wife's property is put under shelter; I allude to the jointures and marriage settlements, protected by trustees who administer them in the wife's interest, and only render an account to her or her children.

It is particularly in reference to the wife's fief that it is worth while to examine into the husband's power. When the wife passed under the husband's authority, who was alone charged with exercising all her rights, there was a change of vassal, for it was the husband's duty to serve the fief; the husband, therefore, was bound to pay the redemption fee to the suzerain; but, as the former was seised as bailee, and not as proprietor, it followed that on her husband's death the widow was only liable for fealty and homage, but had no redemption fee to pay, for there was no change of vassal in that case.

§3.-OF DONATIONS BETWEEN HUSBAND AND WIFE.

The barbarian codes did not prohibit donations between husband and wife, their spirit was not that of the Roman law; on the contrary, they tended to identify the persons and property of the spouses. No reason, then, existed for forbidding the donations which the couple might make to each other, and the deeds of the period afford us several examples of such donations.

Yet it seems that the wife's donations to the husband were contrary to the position that the law wished to make for her; since the wife was a minor, why should an exception to the general principles applicable to minors be made in favour of the husband who was in a position to abuse his authority in order to compel his wife to a forced gift?

Accordingly, in the customs of the thirteenth century, this donation is prohibited, and this is the reason given therefor by the Sachsenspiegel.

"When a man marries he becomes seised of all his wife's estate, as her legitimate guardian; this is why the wife can make a gift of no personalty or realty to her husband, to the prejudice of her lawful heirs. The reason is that the husband can have no other seisin of his wife's property but that which he began by taking in his quality of guardian."

Britton, the English legist, reasons as the Sachsenspiegel does, and gives as an additional reason that such donations tended to impoverish

* Which prohibited all such donations except the wedding present (donatio propter nuptias).

one or other of the donors. Donations to take effect in the lifetime of the twain being thus forbidden, the law at any rate sanctioned testamentary dispositions, excepting the law of England, which, pushing its fiction of the unity of the couple to an absurd point, considered the wife's will as an act of the husband's, and did not allow him to be his own legatee. The queen was the only woman in England who had the right to make a will without her husband's consent; the woman disappeared in the sovereign. Says Coke on Littleton, "But the queene, the consort of the king of England, is an exempt person from the king, by the common law, and is of ability and capacity to purchase and grant without the king."

But there was one kind of donation which the barbarian codes, and, after them, the customs, surrounded with a remarkable favour; and that was the reciprocal gift. The code of the Ripuarians devotes a special chapter to these donations, under the name of adfatimus, but it only allows spouses who are without children to make presents to each other; and even then it is only of the rents and revenues; but these benefactions had often a wider scope, as may be seen from the numerous forms and deeds that are still extant.

Moreover, it seems that the "reciprocal gift," was an institution borrowed from a "Novella" of Theodosius and Valentinian, and that, therefore, its origin was quite as much Roman as German; what is certain is, that the forms give us a double model of this donation, according as it was effected in Teutonic or in Roman fashion, and therefore we may infer that both conquerors and conquered adopted the institution with an equal favour.

This favour remained in the Customs of France and Germany, and several even went so far as to prohibit no other sort of profit between the couple.

As to the conditions attaching to these benefactions, there was on this point an infinite diversity in the customs. Some remaining faithful to the Teutonic spirit, like that of Lübeck and Paris, only authorised the reciprocal gift when there was no issue; others, like that of Chartreux, sanctioned it even when there was issue. A small number of customs tolerated no other advantage than that of dower.

Coquille, staying himself on the Roman law, argues in justification of this limitation of the right of giving; but his reasoning, though historically accurate, is false from a moral point of view. There are no sufficient reasons why, especially where there are no children, husbands and wives should be prevented from bestowing benefactions on each other; these benefactions, which have no effect until after death has sundered the union, only impoverish heirs, who, in the order of the affections, are far from holding the rank which the wife occupies in her husband's heart. Coquille, however, argues—

"The theory of the Roman law is worthy of all honour, for it is not right that friendship, concord, and gracious treatment, should be matters of bargain and sale ; and it lets it be seen that true love depends on the heart, and not on material advantages."

§ 4-OF THE RIGHTS OF THE WELL-BORN WIDOW.

Between the husband who was the occupier of the fief, and the wife who was not seised thereof, there could be no real tenancy in common ; the fief is not a patrimony, and, in default of direct heirs of the first possessor, the land escheats to the suzerain grantor; the wife can lay no claim to aught therein but to her dower. Of the allodial estates the law is the same as that of the fiefs; they are the patrimony of the husband's family; and the husband cannot dispose of them to the prejudice of his own family, but the revenues of the fiefs and allodial estates, the personal property and the property by purchase, all these constitute a common fund, which, on the death of the husband, belongs in part to the wife.

At the outset, the personal property was divided; to the wife went the chattels suitable to her sex, the gerade of the German codes; to the husband's heirs went the arms and the war horse, the herwede of the Sachsenspiegel. This share belongs to the widow by law, and so absolutely, that, according to certain customs, even when the wife had renounced her right to the whole of the personal property, she nevertheless preserved "her bed, her chest, two pairs of dresses, and two pairs of ornaments, whichever she might choose." As to the rest of the personal property, and the property by purchase, it was divided into two equal parts. This is according to the majority of the customs.

But this was only a tontine, a right in the event of survivorship. She could renounce this right, if the charges on the succession made it more onerous than it was worth. The grand coutumier says :—

"The gentlewoman has the choice of taking all the personal estate, and paying all the debts, or of renouncing the personal estate in order to be rid of the debts. But the gentleman has not this right. The reason of the difference is this:-It is the business of men of gentle blood to go to the wars and journey abroad, and for this purpose they incur debts, and sometimes they die abroad, and their wives cannot easily ascertain their liabilities made on account of their travels, ransoms, and pledges, and on this account they are allowed to renounce, and are wont, when the body of their husband is buried, to cast their purse upon the grave (fosse), and not to return to the mansion where the furniture, &c., is; but they go and lodge elsewhere, and may only take with them their ordinary attire and nothing more; and in this way they and their heirs are quit of the debts for ever; but if there is any fraud committed, however small, the renunciation is good for nothing."

The period of the tenancy in common (communauté), such as we understand it, was close at hand when the custom secured to the children the share of their mother when she predeceased her husband; but yet it may be said with truth that in France the communauté was only

established among the noble class when the development of the commoner classes, who were alone acquainted with the tenancy in common between husband and wife, became so powerful that feudal statutes were forced to bow to the usages of these so long disdained villeins. This victory, which began in the thirteenth century, was only completed at the time of the reformation of the customs-a revolution in the civil law which was not less grand than the code itself, for it paved the way for social equality by commencing the era of a uniformity in the laws relating to classes, and by attaching privileges, thenceforth not to the individual, but to the soil. It was to this last lurking-place that the civil code limited an expiring feudalism, prostrated as it had been by the terrible blows struck at it by Dumoulin-a man whose name is hardly known outside our law courts, but who was, for all that, the true legislator of France, and the greatest civil genius of modern times.

In Germany the communauté did not penetrate among noble families; and, at the time of the reformation of the customs, when the communauté was adopted almost everywhere, noble estates (rittersitze), both allodial and feudal were always excepted from this system. Even now the tenancy in common is unknown in the great families; the dower is the most important of the advantages secured to the widow. The same observation holds good of the English laws, which have remained faithful to the usages of the middle ages. The tenancy in common between husband and wife is, therefore, not a Teutonic institution, and its origin must be looked for elsewhere than in the barbarian codes.

§ 5. OF SEPARATION AND DIVORCE

In the tenth century the Church had made its doctrine prevail; there was no longer any divorce, there was simply a separation à mensa et thoro, and this separation was not perpetual, according to the wishes of the Church, which always hoped for a reconciliation. Says Bouteiller

"Divorce is also granted in case of adultery, but know that there is no perpetual divorce, for the law always hopes that they will return from sin, for when they have returned into each other's favour, then the marriage tie is resumed. If such a divorce takes place, the woman ought to have a suitable provision according to her rank, but if the wife voluntarily left her husband, without her husband's constraint, or if the husband found her in fornication, and expelled her on this account, then the wife shall have no alimony; and if she was dowered, she shall lose her dower."

The grand coutumier observes that the adulterous woman only loses her dower when she has been separated by the sentence of an ecclesiastical court. The ancient Custom of Brittany is more severe in this respect :

another, and is not with her And if she quitted for for

"The woman who leaves her husband and elopes with husband at the time of his death, has no right to dower. nication's sake, the husband is not bound to reclaim her, or receive her back, if not heposed thereto. But if he receives her back of his own accord, or reclaims her by