was assigned her; in others one-half, and in others again, the one-fourth.'

28. Dower ex assensu patris was where the father, being seised of lands in fee, permitted his son and heir apparent, at the time of the marriage of the son, to endow his wife at the church. door, of a portion thereof. This species of dower resembled dower ad ostium ecclesiæ, and as was the rule in that mode of endowment, no further assignment was necessary. The widow might enter upon the dower thus assigned her, immediately upon the death of her husband, even though the father were still living. It is said, however, and with apparent reason, that it was important to the widow that she should have a deed. from the father showing his consent to the endowment.*

29. Dower de la pluis beale was where the husband held a portion of his lands by knight service, and a portion in socage, and died leaving a widow and a son within the age of fourteen years, and the lord of whom the land was held in knight's service entered upon that portion as guardian in chivalry during the nonage of the infant, and the widow entered upon and occupied the residue as guardian in socage. If, in such case, she brought a writ to be endowed of the whole premises, she was compelled to endow herself de la pluis beale; that is to say, of the fairest portion of the tenements held by her as guardian in socage.

30. Dower by the common law is the only one of these several kinds of dower that prevails in the United States. The first, fourth, and fifth were long since abolished in England, the fifth, particularly, sharing the fate of the military tenures of which it was an appendage. 6

31. While, as we have seen, some writers, including Lord Coke, confidently assert that dower in lands formed one of the institutions of the Saxons, there are others who, on the contrary, maintain that it was not known in England until after the Norman Conquest. Chancellor Kent appears to be of this number. Sir Martin Wright supposes it to have been brought

Litt.

37; 1 Greenl. Cruise, 167, (*154,) 28 7-10. Litt. 40.

See Glanville, b. 6, ch. 17.

5 Litt.

48.

'Co. Litt. 35, b. In the time of Glanville this was an unsettled question; b. 6, ch. 17. 4 Litt. 240. See Crabb's Hist. Eng. Law, 80, 81. Thomson's Charters, 173; Lambert on Dower, 14.

Dower ad ostium ecclesiæ and

er assensu patris are abolished by 3 and 4 Will. IV. c. 105, 13. 94 Com. 36, note a. See ante ? 5.

See Appendix.

to England by the Normans as a branch of their doctrine of fiefs or tenures. Spelman deduces the word dos from the French douaire. And in Bacon's Abridgment it is said, that among the feudists the rule was non uxor marito, sed uxori maritus affert, and the reason given is that the husband and eldest son of the family being brought up in military exercise, the wife and youngest sons tilled and improved the land, and in the expeditions of the former, the latter found provisions for the army, and having the third part in labor, the wife had the third part of the feud for the maintenance of herself and the younger children during her life.3

32. But whatever question there may be as to the nation or people with whom this institution originated, no doubt can exist as to the motive which led to its adoption into the common law of England. It is a provision intended for the sustenance of the wife and younger children at a time when the husband and father can no longer minister to their wants.* The dependent condition of the widow, and the helplessness of the orphan, have ever been proverbial, and many centuries ago it was written of them that they should be constantly held in remembrance by the Great Father of all. A feeling of tenderness and pity for their forlorn and destitute condition is a common sentiment with mankind, and the instincts of humanity have declared that a fund sacred to that purpose alone should be set apart for their maintenance and support. "The relation of husband and wife," says Sir Joseph Jekyll, “as it is the nearest, so it is the earliest; and therefore the wife is the proper object of the kindness and care of the husband. The husband is bound by the law of God and man to provide for her during his life; and after his death the moral obligation is not at an end; but he ought to take care of her provision during his own life. This is the more reasonable, as during the coverture, the wife can acquire no property of her own. If, before her marriage she had a real estate, this, by the coverture, ceases to be hers. Her personal property becomes his absolutely, or at least is subject to his control; so that, unless she has a real

1 Wright on Tenures, 192; 4 Kent, 36, note; Stearns' Real Act, (274,) 2d ed. 2 Spelm. tit. Doarium, 175.

32 Bac. Abr. 356, note, citing Spelman, tit. Doarium, 175.

The real objects of dower are sustenance for the wife, and nurture and education for the children. Fleta, L. 5, cap. 23.

estate of her own, (which is the case of but few,) she may, by his death, be destitute of the necessaries of life, unless provided for out of his estate, either by jointure or by dower. As to the husband's personal estate, unless restrained by special custom, which very rarely takes place, he may give it all away from her, so that his real estate, if he has any, is the only plank she can lay hold of to prevent her sinking under her distress. Thus the wife is said to have a moral right to dower."

33. In the earlier ages it was considered of paramount importance to guard and protect the dower interest of the widow; for by the old law lands could not be devised, unless it were in some particular places, by the custom, until the statute of Henry VIII. And in those early days the personal estates of the wealthiest were inconsiderable, and before trusts were invented, which was at a comparatively recent period, the husband could give his wife nothing during his own life." Hence, without her dower, the widow, in most instances, would have been left without any provision whatever. Hence, too, we find the sturdy and chivalrous barons of more than six centuries ago, incorporating into the Great Charter of their liberties a provision intended to endure for all time, securing to the widow her right of dower. It would seem also that the Church, ever vigilant and active, untiringly exerted its commanding influence to establish upon a firm foundation this all-important right. "The provision for the widow," says Mr. Maine, "was attributable to the exertions of the Church, which never relaxed its solicitude for the interest of wives surviving their husbands -winning, perhaps, one of the most arduous of its triumphs, when after exacting for two or three centuries an express promise from the husband at marriage to endow his wife, it at length succeeded in engrafting the principle of dower on the customary law of all Western Europe. Curiously enough, the dower of lands proved a more stable institution than the analogous and more ancient reservation of certain shares of the personal property to the widow and children." According to Lord Bacon, "the tenant in dower is so much favored as that it is the common by-word in the law that the law favoreth three things:

12 P. Wms. 702, in Banks v. Sutton.

21 Inst. by Harg. & B. 13 ed. 30, b. note 8; 1 Thomas' Coke, 442, (*567,) 30, b.

note.

Maine's Anc. Law, 224.

1. Life; 2. Liberty; 3. Dower." Favorabilia in lege sunt, vita, fiscus, dos, libertas, was indeed a maxim of the law, and the Year Books and early reports contain ample proofs of the liberal spirit manifested by the courts in its application."

34. It must be admitted, however, that some of the causes which led to this extreme jealousy of the law, and watchful care of the courts on behalf of the dowress, have, in a measure, disappeared. The rigor of the ancient common law has been greatly softened. The right of separate property in the wife is now liberally accorded her; and the same humane and chivalrous spirit which first led to the establishment of the estate in dower has, in the progress of time, and with beneficent hand, sundered many of the fetters with which her property interests were formerly bound. In some of the American States the right of dower has been greatly extended. In others, in default of issue, and where the husband dies intestate, she succeeds to the entire estate remaining after payment of his debts. Possibly there is a tendency in modern legislation to proceed to the opposite extreme; for while, at all times, ample provision should be made for the widow, it should not be forgotten that there may be others besides lineal descendants, who, by the ties of blood, and the laws of nature, have likewise claims upon the estate of the deceased.

1 Bacon's Reading on the Stat. of Uses, ed. 1642, pp. 31, 32.

2 Park, Dower, 2; Cro. Car. 301; Cro. Jac.111; 9 Co. 17, b.; 3 Atk. 37; 1 Dall. Rep. 417.

1. A BRIEF account of the introduction of dower, and its early history in this country, seems a proper accompaniment to the preceding chapter, and may prove not altogether without profit to the practitioner, nor entirely devoid of interest to the student of the law.

2. Virginia. The first charter to Sir Thomas Gates and others, for the settlement of Virginia, bears date April 10, 1606, and was granted by James I. in the fourth year of his reign.' By that instrument it is declared that the colonists and their descendants "shall have and enjoy all liberties, franchises, and immunities within any of our other dominions, to all intents and purposes as if they had been abiding and born within this our realm of England, or any other of our said dominions." Among the "Articles, Instructions, and Orders, made sett down and established" by the king "for the good order and government of the two several colonies and plantations to be made by

1 Smith's App. No. 1, p. 1.

2 Sec. 15; 1 Hen. Stat. at Large, p. 64.