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udicial sentence, she ought to have her dower after her husband's death, however guilty she may have been at a previous period, provided that she had done her duty in tending and serving him."
The Sachsenspiegel preserves to the separated wife the morgengabe, the dower, and the nuptial perquisites ; but only where there was good ground for the separation, which I take to mean legal cause, such as the entry into holy orders, impotence, or sterility; for adultery the law is inexorable. It condemns the guilty one and her paramour to have their heads cut off.
For England, Camden has preserved from the rolls of Parliament, tempore Edward I., a very curious case. In his “ Britannia” he, under the head of Sussex, says
“Thence, near the sea, lies Broadwater, the barony of the Lords de Camois, who flourished from the time of Edward I. till our grandfather's remembrance, * when, by female heirs, the estate came to the Lewkenors and Radnields. Of this family John Camois, son of Lord Ralph Camois, (a precedent not to be paralleled in that or our own age) Out of his own free will,' (I speak from the Parliament-rolls them. selves) 'gave and demised his own wise, Margaret, daughter and heir of John de Gaidesden, to Sir William Painel, knight; and to the same William voluntarily gave, granted, released, and quit-claimed all the goods and chattels which she had, or otherwise hereafter might have, and also whatever was in his hands of the aforesaid Mar. garet's goods and chattels with their appurtenances; so as neither himself, nor any other in his name, might nor for ever ought to claim or challenge any interest in the aforesaid Margaret from henceforth, or in the goods and chattels of the said Margaret. By occasion of which grant, when she demanded her dower in the manor of Torpull, an estate of John Camois, her first husband, there commenced a memorable suit ; but she was cast in it, and sentence passed “That she ought to have no dower from
The right of divorce was introduced into England and Germany at the time of the Reformation, but this change did not sweep away the pecuniary penalties of the middle ages, and the wife divorced for adultery has remained bereft of her dower and her nuptial gains.
§ 6.-OF A SECOND MARRIAGE. The barbarian codes, under the influence of Christian principles, regarded a second marriage with an unfavourable eye ; this disfavour is not however very apparent in the German customs of the middle ages. The Sachsenspiegel, for instance, thus expresses itself“When a man cannot or will not remain a widower, he may contract a legitimate
a union, and that three or four times in succession. Similarly a woman may have several husbands in succession, and the children of the last marriage are as legitimate as those of the first, and she transmits to them both her rights and her property.”
Whereupon the commentator, the precursor of Protestant ideas, intones a hymn in honour of matrimony, and attacks the celibacy of monks and nuns with a zeal worthy of a Luther. I regret that its length prohibits me from inserting it here. What a gulf there is between these gross ideas and the Catholic doctrine, which stigmatises as bigamy the marriage of a bachelor with a widow; for, in that religion, the union is eternal, and death does not interrupt the harmony of a love which is meant to be continued in heaven. It is of this sentiment that Dante, in his “Purgatory,” makes himself the interpreter.
* So said anno 1607.
“Quando sarai di là dalle larghe onde
Com' avria fatto il gallo di Gallura." [I append Mr. J. C. Wright's translation of this passage, accompanied by his explanatory notes.
“When you have crossed again the swelling main,
As would Gallura's bird have granted her. ll” The ancient French laws are as indulgent as those of Germany, and generally allow to the remarrying widow her dower and the nuptial advantages; but in France as in Germany, the spirit of the legislation is more severe than the letter of the custom, and in the marriage contract, a stipulation, revoking these benefits in case of a second marriage, is inserted.
* When you have returned to earth, bid my daughter Giovanna offer up prayers for me.
+ After Nino's death, his widow, Beatrice, married Galeozzo Visconti, son of Maffeo, the ruler of Milan.
# The crest of Galeozzo, her new husband; the ensign also of the Milanese.
|| The cock was the ensign of Gallura where Nino ruled. “She will not," says Nino, “die with such fair fame as if she had preserved her faith and love to me."
In the sixteenth century, the introduction of the Roman law limited, in the case of a second union, the nuptial benefits which the re-marrying woman could bring to her second husband. In France, for instance, the celebrated edict concerning second marriages was adopted in the reign of Francis II. The Chancellor L'Hôpital introduced it into the legislation in 1560, on the occasion of the second marriage of Madame d'Aligre with M. de Clerment; a marriage in which the lady had stripped her children for the benefit of her new husband.
The following were the provisions of the edict concerning second marriages; provisions which were reproduced in Art. 279 of the Custom of Paris, from which I quote the following passage :
“A woman entering into a second or later marriage, if she has children of the first marriage, cannot benefit her second or other subsequent husband from her inherited or purchased estates to a greater extent than one of her children. And as to acquisi. tions made with preceding husbands, she cannot dispose of any portion of them to the prejudice of the portions of the children of those former marriages."
Thus it was only when there were children, and in reference to acquired property only the nuptial gains of the widow received any limitation; the dower was not affected by the second marriage. The only punishment inflicted was the loss of the wardship of her children, an idea which was also borrowed from Roman jurisprudence, and which only appeared in our legislation at the time of the reform of our customs. Until that period the mother preserved the wardship, usage having taken this privilege from the lord to vest it in her in whom Nature had vested it in spite of all laws.
The prohibition against enriching the second husband to an excessive degree was greeted with great favour by our jurists, who were passionate admirers of the Roman law, and since that period it has remained in our modern codes.
“This law,” said Coquille, who was contemporary with the second marriage edict, " is based on a very good reason, because women of middle age who are widows, are more eager for marriage than younger women, as Ovid has remarked before me.”
§ 7.-OF THE MOTHER. I have nothing particular to say concerning the succession of children to their mother; this heritage was distributed like that of the father ; to the sons, the fiefs; to the daughters, the gerade or some portion of the personal estate and the acquired property ; this was almost the same as the succession of the barbarian codes. I observe only in the establishments of St. Louis and the grand coutumier a singular provision which is a relic of Teutonic usages; namely, that the gentlewoman could not dispose of her heritage to the prejudice of her male children; she could not even confer on her daughters the third, fourth, or fifth which was ordinarily disposable for the advantage of the daughters. According VOL. VI,
to the energetic expression of the law, when the woman had male heirs, she had only a life estate in her heritage.
In the countries which remained faithful to Teutonic customs-in Switzerland, for instance—the mother was not the guardian of her children; for she was herself in perpetual tutelage, and her eldest son is generally the “next friend " which the law gives ber. In feudal countries, the wardship belonged to the lord, as I said above; but at a later period, and as a consequence of the triumph of natural sentiments over feudal prerogatives, the wardship, with all its privileges, belonged to the mother. This was a flagrant violation of feudal principles, as is well set forth by Philip of Navarre :
“ No one ought to have the administration of the fief if it cannot revert to him, except in one case, namely, when the heir, being a minor, has a father or mother ; either of these are preferred by the court to any of the other relatives to administer the estate. And this is evidently judge-made law, for strict law never allows him who has no connection with the purchaser of the fief to have the administration and profit thereof, to the exclusion of those who have some connection with him, and to whom the fief may revert. This administrative right of the father or mother is explained by their being the guardians of their child, for the fief cannot in any case revert to them."
The mother, as the guardian, took the personalty, subject to the debts, if this policy suited her, and appropriated all the income of the minor.
In the succession of the mother to the children, leaving fiefs out of the question, the law preferred the father to the mother. This preference flowed from that general principle of mediæval legislation which, in equal degrees, always preferred the male to the female ; but it preferred the mother to the brothers of the deceased; a disposition which disappeared from our legislation according as the law came to apply feudal principles to allodial estates.
As to the fiefs, the mother, like the father, was excluded from the succession by virtue of the principle that the "fief never ascends," and this maxim was early applied to allodial estates, the legislation respecting which was constantly borrowed from feudal principles.
“ Anno 1382. Notorious Customs. Art. 90.-If a child dying leaves father or mother living, and brothers and sisters, all his personal property and purchases belong to his father or mother. But the allodium descends on the brothers and sisters of the said deceased, without the father or mother having any right to succeed thereto."
The exclusion of mothers suited the aristocratic proclivities of the fifteenth and sixteenth centuries too well, so that no one thought of making feudal usages bend to the sacred rights of nature and blood. On the contrary, the authorities sought to make those usages prevail in the South of France, whose customs had remained faithful to the equality of the Roman law, for what they particularly cultivated was, great families to be intermediary between the king and the people,
and to surround the throne with splendour. All the laws of the Valois have this aim in view, and although this dynasty did not long occupy the throne, none did more to found an absolute monarchy by laws and
The greatness of Louis XIV. and his court was prepared by the laws of Charles IX. and his predecessors, not less than by the genius of Richelieu. The Cardinal made the greatness of the king; the Valois had previously made the greatness of the nobility, without which the monarchy of Louis XIV. would not have been possible.
That in the legislation of the sixteenth century a new spirit, the “great family” spirit, had supplanted feudal ideas is proved clearly, (not to travel beyond the scope of our subject) by the Edict of St. Maur, in which Charles IX. openly declares that he only acts "for the preservation of the welfare and repose of the nobility, the principal member of the state, the pillar and strength of the Crown.”
Calling to mind that he had dealt with the law of wills and trusteeships in the interest of the nobility, Charles IX, adds, and these words are significant
“But, as we have been lately informed, we have not yet touched on the principal points which are the most necessary for the preservation of the name, the arms, and the families of our nobility. For in our countries and duchies of Guienne, Languedoc, Provence, Dauphiné, and others, a law and constitution formerly made by the Roman emperors has hitherto been in force, according to which the surviving mother inherits from her children not only their chattels and acquired property, but their inherited estates, which came to them from the paternal line, depriving, in this way, the true heirs of their ancient patrimonies. The which law (beside that it is directly contrary to what is observed in the other countries of our realm, where the rule has always been observed that patrimonial estates never ascend or are taken away from the stock and line whence they are derived) is the cause of great litigation ; and, what is worse, of the loss and destruction of many good houses and ancient families."
In the interest of the nobility of the South of France, the said Edict of St. Maur forbade mothers to succeed to their children's patrimonial heritages, except to the extent of a life estate in half of the same; they had, besides, the personal estate and the purchased or acquired estates.
The Edict of St. Maur was an infringement on the principles of the written or Roman law, in the name of customary and feudal legislation; but the South of France unanimously rejected this violent innovation, which upset a legal system which had had the sanction of several centuries' operation--an innovation, too, which introduced the distinction between inherited and purchased estates in a country which was so happy as to be acquainted with only one kind of patrimony. The parlements of Toulouse and Bourdeaux, for whose jurisdictions the edict had been principally framed, refused to register it. It was the same in Dauphiny; only the parlements of Paris and Provence consented to verify it, and that with extreme repugnance. In the eighteenth