technical expression of peculiar signification. Before the Norman Conquest a widow had no power to marry again, until the expiration of one year after the death of her husband.' Coke says it was certainly the law of England before the Conquest that a widow should continue a whole year in her husband's house, within which time her dower was to be assigned her.2 A similar restriction as to marriage is said to have prevailed in Denmark and Sweden, and anciently in Germany. By the civil law widows were forbidden to marry within ten months after their husbands' decease. But when it was declared by the Great Charter that "a widow, after the death of her husband, shall immediately, and without difficulty, have her marriage and her inheritance," the then existing restriction upon marriage. in England was at once and forever removed." The widow was permitted to tarry forty days in the principal messuage of her husband, and this was called her quarantine; although she was privileged to marry again within that period, yet if she did so, her widowhood was past and she lost her quarantine. The fine which, under the feudal system, was exacted from the widow by the lord, for the assignment of her dower, was also abrogated by Magna Carta."

20. If, as has been supposed by some writers, the rule among the Saxons entitled the widow to a moiety of her husband's lands for her dower, it was greatly modified in England at some period prior to the reign of Henry II. We have already observed that during that reign the dower in common use, as stated by Glanville, was ad ostium ecclesiæ. By that mode of endowment the widow was not permitted to take more than onethird the lands held by the husband at the time of the espousals. He might endow her with less. If he attempted to bestow more, the law reduced the endowment to one-third. If he endowed. her generally of all his lands, without naming the specific lands or proportion assigned her, she was then entitled to one-third 2 Co. Litt. 32, b.

1 Thomson's Char. 172.

Thomson's Char. 172; Barrington's Obs. Anc. Stat. 8-10, 5th edition.

4 L. 2 Cod. de Sec. Nuptiis; Taylor's Elem. Civil Law, 348, et seq.; Cooper's Justinian, 427, notes; Adams' Roman Antiq. 335, 7 N. Y. ed.

5 2 Inst. 18; Thomson's Char. 172.

6 Co. Litt. 32, b., 34, b.; 9 Vin. Abr. 272, tit. Dower, (I. a.) pl. 2. Mr. Thomson says she thereby forfeited her dower, Char. 172. In this he is evidently mistaken. 7 Cap. 7; 2 Bl. Com. 135.

8 See ante, 6, 9; 1 Greenl. Cruise, 164, (*152,) sec. 2, and p. 167, (*154,) sec. 8. 9 Ante, 14; Glanville, Lib. 6, c. 1.

of the freehold of which he was seised at the time of the marriage. This was termed her dos rationabilis, or reasonable dower. If a man had but a small freehold at the time of the espousals, he might afterwards augment the dower to a third part out of purchases subsequently made; but this required a special engagement before the priest to endow her of his future acquisitions, and if no such engagement were made, although the husband had then but a small portion of freehold, and afterwards made large acquisitions, the widow received no benefit from the latter. And if a husband had no lands, an endowment in goods, chattels, or money, at the time of the espousals, was a bar of any dower in lands which he afterwards acquired; for it was a general rule that where dower was specially assigned ad ostium ecclesiæ, the widow could demand no more than what was then and there assigned.3

21. The second charter of Henry III. provided that the

widow should be endowed of one-third of all the lands of her husband, which were his during his life, except she were endowed with less at the church door. The consequence of this exception was, that if the husband endowed his wife ad ostium ecclesia, she was limited to such lands as were specifically assigned to her, not exceeding one-third of his entire freehold, or if the endowment were general, then to the third part of the freehold which the husband held in demesne on the day of the espousals. It was only where there was no endowment at the time. of the marriage that the widow could claim her dower in all the lands held by the husband during the coverture. Indeed Bracton, whose De Legibus et Consuetudinibus Angliæ is supposed to have been written after the forty-sixth year of Henry III., notwithstanding the provision of Magna Carta, before referred to, in his definition of the right of dower, says it must be "the third part of all the lands and tenements which a man had in

11 Reeves' Hist. Eng. Law, 100-2; 2 Black. Com. 133-4; Glanville, Lib. 6, c. 1; Bract. Lib. 2, c. 30, 6; 4 Kent, 36; 1 Greenl. Cruise, 164, (*152,) sec. 3; Co. Litt. 33, b.

2 Glanv. Lib. 6, c. 1; Brac. Lib. 2, c. 39, 6; 1 Reeves' Hist. Eng. Law, 101; 2 Black. Com. 134.

3 Glanv. Lib. 6, c. 2; 2 Bl. Com. 134; 1 Reeves' Hist. Eng. Law, 101; 1 Greenl. Cruise, 164, (*152,) sec. 3.

Cap. 7; ante, & 17.

2 Bl. Com. 134; Glanville, Lib. 6, ch. 2.

61 Reeves' Hist. Eng. Law, 90.

his demense and in fee, of which he could endow his wife on the day of his espousals." A similar rule is said to be contained in the 101st chapter of the Grand Constumier of Normandy, a work supposed to have been produced a short time after the publication of the treatise of Bracton. But Littleton expressly lays it down as the common-law rule in the time of Edward IV. that the wife should have for her dower one-third of the lands. which were her husband's during the espousals; also that she should have her election after her husband's death to accept the dower assigned her at the church door, or refuse it, and claim her dower at common law." He further says that a man might endow his wife ad ostium ecclesiæ, of the whole, the half, or any lesser part of his lands, which is manifestly a change in the law as it existed in the time of Glanville.7

22. It is to be observed that in enlarging the right of dower, Magna Carta, as altered and confirmed by Henry III., extends it to lands held by the husband during his lifetime. This expression appears never to have been taken literally, but has always been understood to mean the lands held by the husband during the coverture. Any other construction would have involved titles to real estate in singular uncertainty and confusion. Formerly, also, the capital messuage was exempt from dower, and was to remain whole and undivided.10

23. Although a woman had no power, during the life of her husband, to dispose of her inchoate interest in the lands of which she had been endowed ad ostium ecclesiæ, yet the husband might alien his wife's dower interest in any manner he saw proper. If, however, the wife declared her dissent therefrom, she might claim her dower after her husband's death, and upon proof of such dissent could recover it against the purchaser. In such case, also, the heir was bound to deliver to the widow the specific dower assigned her, if he could; if he could not procure the identical land, he was to make her a recompense equal in value; and if he delivered to her the land which had

1 Fol. 92; 1 Reeves' Hist. Eng. Law, 312.

2 2 Bl. Com. 133; 1 Greenl. Cruise, 165, (*152,) sec. 3.

31 Reeves' Hist. Eng. Law, 224.

4 Inst. sec. 37.

61 Inst. sec. 39.

51 Inst. sec. 41; 2 Bl. Com. 134.

7 Co. Litt. 36, a.

8 Cap. 7; 2 Bl. Com. 134; 1 Greenl. Cruise, 165, (*152,) sec. 4.

92 Inst. sec. 37; 1 Reeves' Hist. Eng. Law, 242; Beames' Glanville, 113, note; 4 Kent, 36.

101 Reeves' Hist. Eng. Law, 102.

been sold, he was in like manner bound to recompense the purchaser.1

24. Where dower was specifically assigned ad ostium ecclesiæ, the wife, after the death of her husband, might enter upon the lands of which she had thus been endowed without any further assignment. And this was greatly to her advantage, for thereby she was relieved of the burdens and delays incident to a suit to

11 Reeves' Hist. Eng. Law, 101-2; Crabb's Hist. Eng. Law, 81; Glanv. Lib. 6, c. 3, 13. Mr. Beames maintains that, according to the true rendering of the text of Glanville, the widow was not permitted to recover her dower as against a purchaser from her husband. The following is his translation of the passage in question: "And so far is the woman bound to obey her husband, that if her husband chooses to sell her dower, and she refuses her consent, and the dower be afterwards sold and bought under these circumstances, the wife can not, after the death of her husband, claim her dower as against the purchaser, if she confess in court, or is convicted upon the fact that, although she opposed her husband, the dower was sold by him." To this he subjoins the following note: "I have followed all the MS. and the edition of Glanville published in 1604, in admitting not into the text. I submit that this reading is sanctioned, not merely by the previous part of this present chapter, but also by the 13th chapter of the present book. Yet the Regiam Majestatem makes the validity of such a sale to depend upon the wife's consent-but if she made no opposition to it, it seems to have been tantamount to a positive consent (L. 2, c. 15, 16.) From considering the 13th chapter of the present book, one thing seems clear-that in case the husband disposed of his wife's dower, the heir was bound to render an equivalent to the purchaser, if the land was recovered from him, or to the wife, if it was not so. As to the heir, therefore, it was immaterial; and so, perhaps, it might be considered with respect to the wife and purchaser in case the heir, as heir, was solvent; but if otherwise, it was highly material to ascertain whose right, that of the wife, or that of the purchaser, was paramount. Bracton is more explicit than our author; and from him we collect that a distinction should be made whether the dower was originally named or not. In the former case the woman could pursue the identieal dower, and wrest it from the hands even of a purchaser. In the latter she was obliged to resort to the heir for an equivalent. In the first case, from the momen the dower was named, the woman acquired a certain jus et dominium, as Bracton expresses it, in the property, which accompanied it into whatever hands it afterwards went, and gave her the right of following and reclaiming it. But, if the endowment were general, and no particular land specified, the wife did not acquire any imme. diate right, on account of the uncertainty, it being questionable what identical allotment would fall to her share until the assignment took place, (Bracton, 300,b.)" Beames' Glanville. 117, note. In this connection, and as reflecting some light upon this controverted point, I also reproduce chapter 13 of the sixth book of Glanville, as translated by the same writer: "It must also be understood, that if the husband of after having endowed her as his wife, should sell her dower to any one, his heir shall be obliged to deliver the dower to the woman, if he possibly can; at the same time he shall be bound to render a reasonable equivalent to the purchaser on account of the sale or gift of his ancestor. If, however, the heir be unable so to do, he shall be bound to make to the woman a reasonable compensation."

any woman,

recover her dower, in the prosecution of which, as Coke says, "her life might be spent, together with her money also;" for although it was provided by Magna Charta that dower should be assigned her within forty days after her husband's death, yet until the passage of the statute of Merton there was no penalty inflicted nor damages awarded for withholding the dower, and consequently the widow was frequently subjected by the tenant to unjust delays and oppressive litigation.2

25. The statute of Merton was passed in the 20th of Henry III.3 Chapter I. was expressly designed to remedy the injustice noticed in the preceding section. By Bracton it is called Nova Constitutio. It was therein provided that the wife should recover damages in her writ of dower from the time of the death of her husband; and moreover that persons convicted of deforcing widows of their dower should be in misericordia to the king. Before the making of this statute, it had been an open question whether the tenant in dower might lawfully bequeath the grain which he had sown, or whether it should go to the reversioner with the lands. Chapter II. removed this doubt, and declared in favor of the widow that she might bequeath the growing crop upon the lands held in dower. And this provision extended to all descriptions of dower. Although the statute of Merton gave to the widow damages for the detention of her dower, yet it did not permit her to recover costs; but by the statute of Gloucester, passed in the sixth of Edward I., costs were given her also.

26. Littleton tells us that formerly there were five kinds of dower, namely, dower ad ostium ecclesiæ, dower by the common law, dower by the custom, dower ex assensu patris, and dower de la pluis beale. Dower ad ostium ecclesiæ, and dower by the common law we have already noticed.

27. Dower by the custom was where, by the custom of any particular locality, the widow was entitled to a peculiar and unusual allotment of dower. In some places the whole land

1 Co. Litt. 34, b.

3 2 Inst. 79, 80.

2 Ibid. and 32, b.; Reeves' Hist. Eng. Law, 261.

4 Lib. 4, 312, and lib. 2, 96; Co. Litt. 32, b.

5 Co. Litt. 32, b.; 1 Reeves' Hist. Eng. Law,261; Stat. of Merton, cap. 1; 2 Inst. 80. 62 Inst. 80, 81; 1 Reeves' Hist. Eng. Law, 262.

7 Co. litt. 32, b. note 4. This statute is set out at length in 2d Inst. 277 to 330 inclusive.

8 Sec. 51.