1. THE origin of the custom conferring upon the widow a right to enjoy, for the term of her natural life, a certain portion of the lands and tenements whereof her husband was seized during the coverture, (when consummate, known in legal parlance as an estate in dower,) is involved in so much doubt and obscurity, that an attempt to investigate its source, and trace its history with any great degree of accuracy, would be attended with but little success. The most learned among those who have "The introduction of dower into England is of such antiquity that its origin cannot be traced with any degree of certainty." Per Nott, J., in Wright v. Jennings, 1 Bai VOL. I.-1 devoted time and attention to the consideration of this subject, and favored us with the result of their researches, differ widely in their conclusions as to the real source from which the custom is derived. When we consider, in connection with this fact, that the solution of this question is of but little practical importance, inasmuch as the right of dower has long been recog nised, and firmly established in the law, and the general rules and principles defining, regulating, and enforcing it, are, in a measure, well understood in practice, an effort to present, in an extended form, the conflicting views of the different authors who have discussed the question as to its origin and early history, might justly be deemed an unprofitable consumption of time. A brief notice of the subject, however, with an occasional reference to some of the writers-ancient and modern-who have treated it more at length, may be regarded as not wholly inappropriate by way of introduction to the more practical and important objects and purposes of our work. 2. The terms of entreaty in which Shechem solicited Jacob for his daughter Dinah in marriage are sometimes referred to as furnishing evidence of the great antiquity of dower: "Ask me never so much dowry and gift, and I will give according as ye shall say unto me; but give me the damsel to wife." But the "dowry" here referred to bore no resemblance to the dower of the common law, nor the dowry of the civil law, but was a gift made by the suitor to the father, or other near relative of the intended bride. A similar custom was observed among the Grecians, until by a refinement of manners they began to look upon it as disgraceful. The existence of this custom was regarded by Aristotle as one proof that the manners of the ancient Greeks were barbarous, because they became the purchasers of their wives.1 ley's S. C. Law Rep. 277, 278. "It is difficult to trace the origin of dower, but all writers admit it to be of great antiquity." Per Lacy, J., in Hill v. Mitchell, 5 Ark. 608, 610. "So ancient that neither Coke nor Blackstone can trace it to its origin." Per Catron, C. J., in Combs v. Young, 4 Yerg. 218. Gen. xxxiv. 12; Beames' Glanville, 111, note; Crabb's Hist. Eng. Law, 79; 19 Amer. Jurist (July 1838), 292, 294. 2 See post, ? 4. Kitto's Cyclop. of Bib. Lit., vol. ii. p. 307, title "Marriage ;" Calmet's Dict. of the Bible, by Robinson, 352, title "Dowry." Other scriptural allusions to this custom are referred to in the works here cited. 4 Polit. I. 2, c. 8; Crabb's Hist. Eng. Law, 79, 80. 3. It appears quite certain that dower in any form was unknown among the ancient Britons. The Welsh were unacquainted with it before the statute of Rutland;' nor was it established among the Irish until they adopted the English laws. We are naturally led, therefore, to regard the custom as having had its origin in England at a date subsequent to the invasion of that country, and as having been introduced there by one of the nations whose iron-clad legions or rude hordes successively overrun and established themselves upon its shores. 4. It is very questionable whether our jurisprudence is, in any degree, indebted to the Roman invasion, or to Roman laws, for the establishment of the right of dower.3 Dower is called, in Latin, by Bracton and other early English writers, dos. In the civil law this term imported the marriage portion which the wife brought to the husband, either in land or in money, and corresponded, to some extent, with the maritagium of the common law. The Latin term dos, therefore, is properly translated not by the word dower, but by dowry, things entirely different in their nature. By the civil law the husband acquired only the usus fructus in the portion brought by his wife, during the existence of the marriage relation. Upon the dissolution of the marriage by the death of the husband, or by divorce, the entire property reverted to the wife. He could not alien the lands, but was permitted to dispose of the personalty. It was required of him, however, that upon the determination of the marriage. he should restore the full value of any property disposed of by him. The civil law, in its original state, had nothing that bore any resemblance to the English law of dower. Yet the ancient mode of endowment at the church door, by the husband, Enacted May 24, A. D. 1282, 10 Edw. I.; Barrington's Obs. Anc. Stat. 80; see also, pp. 70, 71; Hale's Hist. Com. Law, ch. 9, p. 189; Crabb's Hist. Eng. Law, 160, 162; Wright's Tenures, 192, note. Dav. Rep. 136; 1 Thomas' Coke, 442, (*567,) note, (A.). Crabb's Hist. Eng. Law, 79; Beames' Glanville, 111, note. 2 Bac. Abr. 356, note; 2 Bl. Com. 129; 1 Reeves' Hist. Eng. Law, 103; 1 Thom as Coke 442, (*567,) note (A.); Burrill's Law Dict., Dos, citing Heinecc. El. Juris, Civ. lib. 2, tit. 8, 465; see Glanville, Book 7, ch. 1. 51 Reeves' Hist. Eng. Law, 103; Co. Litt. 31, a.; Beames' Glanville, Book 7, ch. 1, and note, p. 138. Macq. H. & W. 151, note; Crabb's Hist. Eng. Law, 79. 72 Bac. Abr. 356, note, citing Vin. 249; Corvin, lib. 23, tit. 3; Honorius, 114, 115; I Thomas' Coke, 442, (*567,) note (A.). 2 Black. Com. 129. |