Front Page Titles (by Subject) PART IX.: WILLS, DESCENT, MARRIAGE - Select Essays in Anglo-American Legal History, vol. 3
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PART IX.: WILLS, DESCENT, MARRIAGE - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3.
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WILLS, DESCENT, MARRIAGE
[Other References on the Subjects of this Part are as Follows:
The Testamentary Executor in England and Elsewhere, by R. J. R. Goffin (Yorke Prize Essay, 1899), London, 1891.
Outline of the Development of Probate Law and Probate Jurisdiction in New Hampshire, 1623-1775 (New Hampshire State Papers, 1907, vol. XXXI, Wills and Probates).
Two Essays on Primogeniture, by C. S. Kenny and P. M. Lawrence, London, 1878.
The Origin of Cy Pres, by Joseph Willard (Harvard Law Review, VIII, 69), 1894.
Changes in the Law of Wills and Descent in the United States, by L. M. Daggett (c. VIII, in Two Centuries’ Growth of American Law, Yale Bi-Centenary Studies), 1901.]
THE MEDIÆVAL LAW OF INTESTACY1
DURING the middle ages the last will was usually the epilogue of the last confession.3 The intestate was regarded with horror as an infamous person who had died unconfessed. For if he had made confession on his deathbed, the priest before granting absolution would have persuaded the dying man to make a will by which he would bestow a part of his movables on the church and the poor for the repose of his soul.4 The intestate, therefore, must have died without providing for his salvation; he could not be buried in consecrated soil, and in some parts of Europe his personal property was forfeited to his feudal lords.5 In England during the first half of the thirteenth century the prelates secured the right to distribute such property, but a statute of 1357 required the ordinary to commit the work of administration “to the next and most lawful friends of the dead,” who were to make provision for the welfare of his soul and were accountable to the ordinary. The rule was after payment of debts to give a third of his movables to the wife and a third to the children (the bairns’ part), while the other third (the dead’s part) was expended for pious works; if he left a wife but no children, or children but no wife, the dead’s part was a half.1
It has recently been asserted that intestacy was rare in England because it was easy to make a will and because the chroniclers treat intestacy as a scandal.2 While the paucity of references to intestates in the records tends to confirm this view, most of the cases referred to by the chroniclers seem to relate to men who had fair warning that death was approaching, not to those who died suddenly; and the coroners’ rolls show that such sudden deaths were very common. Therefore, since a man usually made his will on his deathbed,3 intestacy could not have been rare; and the records which we shall soon examine show clearly that intestates who died suddenly were regarded with less horror than those who died under normal conditions.
Much obscurity overhangs the English law of intestacy before the thirteenth century. Blackstone, adopting the opinion of Coke,4 says that “by the old law the king was entitled to seize upon his [the intestate’s] goods, as the parens patriae and general trustee of the kingdom.”5 On the other hand, Selden and Pollock and Maitland deny that this was ever a prerogative of the crown. Though Coke’s contention appears to be untenable, it would not have been strange if the strong English monarchy, adopting the principle of the Norman law, had insisted that the movables of intestates should be dealt with in the same way as those of deceased usurers. The Grand Coutumier of Normandy says that all the chattels of those who, after an illness of nine days or more, die unconfessed, belong to the duke, though some lords possess this right by charter or prescription;1 and, according to an inquest made by order of Philip Augustus in 1205 regarding the laws which Henry II. and Richard I. had observed in Normandy, all the movables of an intestate who lay ill in bed three or four days before his death were forfeited to the king or to the lord.2 In 1190 the clergy of Normandy claimed, however, that if any one dies suddenly without leaving a will his personal estate should be distributed by the church.3 This was evidently a mooted question in Normandy regarding which there were disputes between the lay and ecclesiastical authorities.
Certain passages may be found in the records which at first view seem to lend some support to the theory of Coke and Blackstone, but when carefully scrutinized they fail to carry conviction. For example, in 1255 Henry III. grants to the burgesses of St. Omer that if any of them shall die in the king’s dominions testate or intestate, he will not confiscate their goods, but will allow their heirs to have them;4 probably Henry III. is here merely safeguarding the men of St. Omer against reprisals.5 In 1268 the citizens of Dublin contended that the movable property of intestates belonged to the crown, but for this and other misdemeanors they were excommunicated.6 Moreover, various passages in the rolls of the twelfth and thirteenth centuries show that the chattels of intestates were sometimes seized by the king,1 but in these cases he was probably exercising this right because he was the feudal lord. In 1284 Edward I. craved a grant of the goods of intestates from Pope Martin IV., to help pay the expenses of his proposed crusade, and met with a refusal,2 though a grant of this sort had been made in 1256.3 These negotiations with the papacy imply that Henry III. and Edward I. did not regard such goods as the property of the crown.
The evidence at our disposal indicates that, according to the older law of England, the personal property of the intestate was forfeited to the feudal lord. Cnut’s doom seems to imply that already before the Norman Conquest the lords were trying to obtain this right: “If anyone dies intestate, be it through his neglect or through sudden death, then let not the lord draw more from his property than his lawful heriot; and according to his direction let the property be distributed very justly to the wife and children and relations.”4 Domesday Book tells us that in the time of Edward the Confessor the king could seize all the goods of his citizens of Hereford dying without a will.1 The rule set forth in Leis Willelme, ch. 34, that the children of an intestate shall divide the inheritance among them equally,2 may be construed as an assertion against the claims of the lords. The coronation charter of Henry I. says that if any royal vassal meets a sudden death by arms or sickness and makes no disposition of his effects (pecunia), his wife, children, kinsmen, or liege men shall distribute them for the good of his soul.3 This regulation applies only to royal vassals, and it seems to imply that, except in cases of sudden death, the king as lord might exercise the power of confiscation.4 Glanvill clearly states that when any one dies intestate all his chattels are understood to belong to his lord,5 and this seems to be confirmed by some entries in the Pipe Rolls of Henry II.6 The chapter of John’s Great Charter enacting that the chattels of a free man who dies intestate should be distributed by the hands of his near kinsmen or friends under the supervision of the church,7 seems to have transferred power from the king and other lords to the prelates; and, though this chapter was omitted in the confirmations of the charter, probably because it collided with the interests of the lay lords, the church exercised the right to distribute the personal property of intestates since the second quarter of the thirteenth century1 and perhaps since the early part of Henry III.’s reign. The constitutions of Walter of Cantilupe, bishop of Worcester (1240), assert that the distribution should be made under the supervision of the lord and him whom the bishop shall have deputed for that purpose.2 This arrangement looks like a compromise in a struggle between the barons and the prelates or between the principles set forth in Cnut’s doom and in John’s charter. Bracton’s statement of the law of his time is also reminiscent of the older law: “If a free man dies intestate and suddenly, his lord should in no wise meddle with his goods, save in so far as this is necessary in order that he may get what is his, namely, his heriot, but the administration of the dead man’s goods belongs to the church and to his friends, for a man does not deserve punishment although he has died intestate.”3
There are, moreover, indications that in Bracton’s day and later the lords remembered their old right, and sometimes tried to assert it in defiance of the church. In the articles presented to Henry III. by the bishops in 1257, it is stated that the king and other feudal lords seize the goods of intestates, and do not permit their debts to be paid or the residue to be applied by the ordinary to the use of the children or kinsmen and to other pious uses.4 Lords who do this were threatened with excommunication at the Council of Merton in 1258, and at the Council of Lambeth in 1261.5 In 1279 Archbishop Peckham rebukes Llewellyn, prince of Wales, for confiscating “bona intestatorum vestrorum”;6 and in 1305 the bishop of Llandaff complains to Edward I. that the magnates will not allow him to administer the goods of intestates.1 The lords also continued, in some parts of England at least, to confiscate the chattels of their villeins dying intestate.2
In the marches of Wales the old law in favor of the lords seems to have been maintained long after the reign of Edward I. In 1278 the lord of Kemes agreed to waive his claim to the property of intestates.3 In 1352 Edward III. ordered three commissioners to inquire whether Sir Henry Hastings, a tenant-in-chief, and others died intestate, and whether, according to the custom of the marches of Wales, all the chattels of tenants dying intestate belonged to their lords. A jury sworn before two of the commissioners in 1354 declare that from time immemorial it has been customary for the lords to have all such chattels.4 They say that Sir Henry left a will, but that Grono ap Ievan died intestate during the present reign; his chattels are worth 40s.5 An attempt was made to enforce the old custom as late as the reign of Edward VI.6
Attention must finally be called to the town charters, which, though they contain many references to intestacy, have been passed over in silence by all writers on this subject. Their examination will confirm the view that long after Bracton wrote his law-book the king and other lay lords still remembered their old right, and that their tenants, in the boroughs at least, regarded exemption from its exercise as a privilege. The following list of references to the evidence on this subject does not profess to be exhaustive.1
The same formula is used in the royal charters with few exceptions:7 the king promises that if any burgesses should die within his dominions testate or intestate, he will not cause their chattels to be confiscated, but the heirs shall have them intact, in so far as it can be shown that they belonged to the deceased, provided that sufficient knowledge or proof of the heirs can be had.8 Perhaps the demand for this privilege was stimulated in 1256-57 and 1284 by the negotiations between the crown and the papacy.1 The charters of baronial towns which state that the chattels of burgesses who die suddenly or “by any sort of death” shall go to their heirs, doubtless refer to cases of intestacy. A grant of Henry II. to La Rochelle tells us that a burgher who breaks his neck or is drowned has not an opportunity to confess and make his will; therefore his property is to be distributed by his kinsmen and friends for the good of his soul.2
The town records of England give little information concerning the disposition of the goods of the intestate. The rule laid down in the Preston customal seems to mean that out of his estate provision was to be made for the benefit of his soul by the parish priest and the dead man’s friends or kinsmen.3 According to the customal of Sandwich, which probably records the usages of the fourteenth and fifteenth centuries, the mayor and jurats have the administration of the bona intestatorum in the following manner. The mayor takes with him the jurats and sometimes the rector or vicar of the dead man’s parish, and they ascertain what he possessed in money, goods, and debts at the time of his death. Then they appoint two executors, who are sworn to make an inventory. After payment of debts and funeral expenses, the residue is divided into three equal parts, if there is a wife and children; into two equal parts, if there is a wife but no children. Then the dead man’s part (the third or half) is distributed for the benefit of his soul; and finally the executors render an account before the mayor and jurats, the friends or kinsmen, and the rector or vicar, if they desire to be present. The record adds that this practice has been in use from ancient times without any contradiction on the part of the archdeacon of Canterbury or any other ordinary.1 The dead man’s part was probably expended for pious uses in other towns, like London, York, Chester, Bristol, Dublin, and Newcastle-upon-Tyne, where the tripartite division of the chattels of a man with wife and children existed.2 But Bracton, after speaking of the law of intestacy and the tripartite division of chattels, vaguely intimates that other rules prevailed in some boroughs and cities.1 Most of the records say that the personal property of the intestate shall go to his heirs or to his wife and children, without specifying any limitation or legitim. The heirs would, however, probably regard it as a religious duty to do something for the repose of the intestate’s soul; and, as at Preston, this would naturally be done with the help or advice of the parish priest. But we hear nothing of the intervention of the ordinary, except at Dublin in 1268, when the citizens resented it;2 and the Sandwich customal expressly excludes any intervention of this sort. Such opposition to the assertion of episcopal authority was to be expected in towns the magistrates of which had the probate of wills. In many boroughs during the thirteenth and fourteenth centuries the municipal magistrates pronounced on the validity of wills3 and administered justice on behalf of the legatee whose legacy was withheld,1 though this jurisdiction was evidently regarded with disfavor by the prelates.2 The municipal authorities before whom wills were proved would naturally claim the right to administer the intestate’s property. “The right to regulate the administration of intestates was too closely connected with the testamentary jurisdiction to be conveniently sevarated from it.”3
While we have tried to show that there are indications of a struggle of the feudal lords to obtain or maintain their right to confiscate the chattels of intestates—a struggle which lasted from the time of Cnut to the time of Edward I., and of which we still find reminiscences in the records of the fourteenth century,—the main object of this paper has been to call attention to the fact that throughout the thirteenth century many boroughs were purchasing from their lords a favor or privilege which, according to Bracton, was the right of every free man. In the very decade when Bracton was asserting that the lord shall not meddle with the intestate’s goods, the lords were selling a burghal franchise which implied that they had the right to seize such goods. The importance of personal property in boroughs, which was due to the predominance of mercantile over agricultural interests, would naturally make both the lords and the burgesses inclined eagerly to assert their claims against the pretensions of the prelates. The old law of intestacy, as set forth by Glanvill, pressed more heavily upon the tradesmen, whose wealth was made up mainly of chattels, than upon rural freeholders and villeins. It is not strange, therefore, that the town law since the thirteenth century strove to reject the pretensions of both lords and prelates, and to establish the rule that the chattels of the intestate should go to his kinsmen, who would, however, be expected to devote a portion of his property to pious works for the atonement of his sins and the benefit of his soul.
EXECUTORS IN EARLIER ENGLISH LAW1
AT the present day executors and administrators hold the assets of the estate in a fiduciary capacity. Their rights and liabilities in respect of the fund in their hands, are very like those of trustees. But this way of regarding them is somewhat modern. I wish to call attention to several changes in the law which have taken place at different times and without reference to each other, for the purpose of suggesting that they are witnesses of an older condition of things in which the executor received his testator’s assets in his own right. As usually is the case with regard to a collection of doctrines of which one seeks to show that they point to a more general but forgotten principle, there can be found a plausible separate explanation for each or for most of them, which some, no doubt, will regard as the last word to be said upon the matter.
I have shown elsewhere that originally the only person liable to be sued for the debts of the deceased, if they were disputed and had not passed to judgment in the debtor’s lifetime, was the heir.3 In Glanville’s time, if the effects of the ancestor were not sufficient for the payment of his debts the heir was bound to make up the deficiency out of his own property.1 In the case of debts to the king, this liability continued as late as Edward III,2 royalty like religion being a conservator of archaisms. The unlimited liability was not peculiar to England.3 While it continued we may conjecture with some confidence that a judgment against the heir was not confined to the property which came to him from his ancestor, and that such property belonged to him outright. At a later date, M. Viollet tells us, the French customary law borrowed the benefit of inventory from the Roman law of Justinian. The same process had taken place in England before Bracton wrote. But in the earliest sources it looks as if the limitation of liability was worked out by a limitation of the amount of the judgment, not by confining the judgment to a particular fund.4
As was shown in the article above referred to, the executor took the place of the heir as universal successor within the limits which still are familiar, shortly after Bracton wrote. His right to sue and the right of others to sue him in debt seemed to have been worked out at common law.5 It hardly needs argument to prove that the new rights and burdens were arrived at by treating the executor as standing in the place of the heir. The analogy relied on is apparent on the face of the authorities, and in books of a later but still early date we find the express statement, executores universales loco hæredis sunt,1 or as it is put in Doctor and Student, “the heir, which in the laws of England is called an Executor.”
Now when executors thus had displaced heirs partially in the courts, the question is what was their position with regard to the property in their hands. Presumably it was like that of heirs at about the beginning of the fourteenth century, but I have had to leave that somewhat conjectural. The first mode of getting at an answer is to find out, if we can, what was the form of judgment against them. For if the judgment ran against them personally, and was not limited to the goods of the deceased in their hands, it is a more than probable corollary that they held those assets in their own right. The best evidence known to me is a case of the year 1292, (21 Ed. I.) in the Rolls of Parliament.2 Margery Moygne recovered two judgments against Roger Bertelmeu as executor of William the goldsmith. In the first case he admitted the debt and set up matter in discharge. This was found against him except as to £60, as to which the finding was in his favor, and the judgment went against him personally for the residue. In the second case the claim was for 200 marks, of which the plaintiff’s husband had endowed her ad ostium ecclesiæ. The defendant pleaded that the testator did not leave assets sufficient to satisfy his creditors. The plaintiff replied that her claim was preferred, which the defendant denied. The custom of boroughs was reported by four burgesses to be as the plaintiff alleged, and the plaintiff had a judgment against the defendant generally. The defendant complained of these judgments in Parliament, and assigned as error that there came to his hands only £27 at most, and that the two judgments amounted to £40 and more. The matter was compromised at this stage, but enough appears for my purposes. If the defendant was right in his contention, it would follow in our time that the judgment should be de bonis testatoris, yet it does not seem to have occurred to him to make that suggestion. He assumed, as the court below assumed, that the judgment was to go against him personally. The limitation for which he contended was in the amount of the judgment, not in the fund against which it should be directed.
There is some other evidence that at this time, and later, the judgment ran against the executor personally, and that the only limitation of liability expressed by it was in the amount. In the first case known to me in which executors were defeated on a plea of plene administravit it was decided that the plaintiff should recover of the defendants “without having regard to whether they had to the value of the demand.”1 Afterwards it was settled that in such cases the judgment for the debt should be of the goods of the deceased, and that the judgment for the damages should be general.2 But whether the first case was right in its day or not, the material point is the way in which the question is stated. The alternatives are not a judgment de bonis testatoris and a general judgment against the defendants, but a judgment against the defendants limited to the amount in their hands, and an unlimited judgment against them.
But if it be assumed that a trace of absolute ownership still was shown in the form of the judgment, when we come to the execution we find a distinction between the goods of the testator and those of the executor already established. In 12 Edward III. a judgment had been recovered against a parson, who had died. His executors were summoned, and did not appear. Thereupon the plaintiff had fieri facias to levy on the chattels of the deceased in the executors’ hands (de lever ses chateux qil avoient entre mayns des biens la mort), and on the sheriff returning that he had taken 20s. and that there were no more, execution was granted of the goods of the deceased which the executors had in their hands on the day of their summons, or to the value out of the executors’ own goods if the former had been eloigned.1
I now pass to two other rules of law for each of which there is a plausible and accepted explanation, but which I connect with each other and with my theme. In former days, I was surprised to read in Williams on Executors, that the property in the ready money left by the testator “must of necessity be altered; for when it is intermixed with the executor’s own money, it is incapable of being distinguished from it, although he shall be accountable for its value.”2 What right, one asked oneself, has an executor to deal in that way with trust funds? In this Commonwealth at least the executor would be guilty of a breach of duty if he mingled money of his testator with his own. Another passage in Williams shows that we must not press his meaning too far. It is stated that money of the testator which can be distinguished does not pass to a bankrupt executor’s assignee.3 The principal passage merely was repeated from the earlier textbooks of Wentworth and Toller. In Wentworth the notion appears to be stated as a consequence of the difficulty of distinguishing pieces of money of the same denomination from each other,—a most impotent reason.4 There is no doubt that similar arguments were used in other cases of a later date than Wentworth.5 But I prefer to regard the rule as a survival, especially when I connect it with that next to be mentioned.
As late as Lord Ellenborough’s time it was the unquestioned doctrine of the common law that the executor was answerable absolutely for goods which had come into his possession, and that he was not excused if he lost them without fault, for instance, by robbery.1 Now it is possible to regard this as merely one offshoot of the early liability of bailees which still lingered alive, although the main root had rotted and had been cut a century before by Chief Justice Pemberton, and by the mock learning of Lord Holt.2 It is explained in that way by Wentworth,3 who wrote before the early law of bailment had been changed, but with some suggestions of difference and mitigation. If this explanation were adopted we only should throw the discussion a little further back, upon the vexed question whether possession was title in primitive law. But it is undeniable that down to the beginning of this century the greatest common-law judges held to the notion that the executor’s liability stood on stronger grounds than that of an ordinary bailee, and this notion is easiest explained as an echo of a time when he was owner of the goods, and therefore absolutely accountable for their value. In the Chancery, the forum of trusts, it is not surprising to find a milder rule laid down at an earlier date, and no doubt the doctrine of equity now has supplanted that of the common law.4
There is no dispute, of course, that in some sense executors and administrators have the property in the goods of the deceased.5 I take it as evidence how hard the early way of thinking died that as late as 1792, the King’s Bench were divided on the question whether a sheriff could apply the goods of a testator in the hands of his executor in execution of a judgment against the executor in his own right, if the sheriff was notified after seizure that the goods were effects of the testator. As might have been expected the judgment was that the sheriff had not the right, but Mr. Justice Buller delivered a powerful dissent.6 A little earlier the same court decided that a sale of the testator’s goods in execution of such a judgment passed the title, and Lord Mansfield laid it down as clear that an executor might alien such goods to one who knew them to be assets for the payment of debts, and that he might alien them for a debt of his own. He added, “If the debts had been paid the goods are the property of the executor.”1
Another singular thing is the form of an executor’s right of retainer. “If an executor has as much goods in his hands as his own debt amounts to, the property of those goods is altered and rests in himself; that is, he has them as his own proper goods in satisfaction of his debt, and not as executor.”2 This proposition is qualified by Wentworth, so far as to require an election where the goods are more than the debt.3 But the right is clear, and if not exercised by the executor in his lifetime passes to his executor.4 So when an executor or administrator pays a debt of the deceased with his own money he may appropriate chattels to the value of the debt.5 A right to take money would not have seemed strange, but this right to take chattels at a valuation in pais without judgment is singular. It may be a survival of archaic modes of satisfaction when money was scarce and valuations in the country common.6 But it may be a relic of a more extensive title.
The last fact to be considered is the late date at which equity fully carried out the notion that executors hold the assets in trust. In 1750, in a case where one Richard Watkins had died, leaving his property to his nephew and nieces, Lord Hardwicke, speaking of a subsequently deceased nephew, William Watkins, said that he “had no right to any specific part of the personal estate of Richard whatever; only a right to have that personal estate accounted for, and debts and legacies paid out of it, and so much as should be his share on the whole account paid to him; which is only a debt, or in the nature of a chose in action due to the estate of William.”1 In M’Leod v. Drummond2 Lord Eldon says that Lord Hardwicke “frequently considered it as doubtful, whether even in the excepted cases any one except a creditor, or a specific legatee, could follow” the assets in equity. On the same page, Hill v. Simpson, 7 Ves. 152 (1802), is said to have been the first case which gave that right to a general pecuniary legatee.3 Hill v. Simpson lays it down that executors in equity are mere trustees for the performance of the will,4 but it adds that in many respects and for many purposes third persons are entitled to consider them absolute owners. Toward the end of the last century their fiduciary position began to be insisted on more than had been the case, and the common-law decisions which have been cited helped this tendency of the Chancery.5
The final step taken was taken in M’Leod v. Drummond,6 when Lord Eldon established the rights of residuary legatees. “It is said in Farr v. Newman that the residuary legatee is to take the money, when made up: but I say, he has in a sense a lien upon the fund, as it is; and may come here for the specific fund.”7
THE EXECUTOR IN ENGLAND AND ON THE CONTINENT1
THE European systems of legislation present to-day many differences in the matter of testamentary executorship; yet during the Middle Ages this institution offered throughout Christian Europe nearly the same aspect. The point of departure has been one, though the paths have diverged widely. In Italy, France, Spain, England and Germany the testamentary executorship played during the Mediæval epoch a pretty uniform part; its legal structure reveals everywhere the same legal traits. Born of the same creeds, it assumed everywhere the same forms.
The part it has played is considerable. The testamentary executor has been the intermediary of numberless pious gifts; the cartularies of the convents are full of acts drawn up by executors for the good of the souls of the deceased. We cannot realize to-day the social importance of the functions of these almoners. It is due to them and to the bounty they are going to bestow upon the convent by the request of the deceased, that the body of the latter is allowed to receive an honorable burial in consecrated ground; due to them that the soul of the dead can be happy in the other world; for alms redeem sin. Happy he who has left behind him an almoner to watch over his soul, and make gifts pro anima.
This is not all. Beside the religious part, the testamentary executor played after the 12th century another which is essential in the law of succession. He is the liquidator of the estate of the deceased. He receives his assets, goods and demands; to him also pass the debts. To third parties he continues the person of the deceased, like the heir of the Roman law. He must settle and adjust the varied interests arising in connection with the succession; he interprets the will; he allays controversies; he delivers the bequests to the legatees, and if after the settlement of the estate, something is left over, he disposes of it in his discretion as he may judge most beneficial for the soul of the deceased. Often the testator has given only the briefest hints, relying upon the executor for the disposal of the surplus.
1 By a remarkable coincidence, the institution developed at the same time and assumed a great importance in two other legal systems, the Byzantine and the Mahometan. The testamentary executorship which appears in its germs in the law of Justinian, grows in strength in the Byzantine law of the 9th and 10th centuries. The ἐπίτροπος resembles in many points the executor of the Western law: he too temporarily continues the person of the deceased, he too is placed under the close supervision of the public authorities, lay and religious, which can remove him and appoint in his stead an official administrator.
Perhaps under the influence of the Byzantine law, but with very original peculiarities, the testamentary executorship had also come to hold a place of great importance in the Mahometan system of succession. Of considerable consequence in the Shafite and Shiite laws, it attains its maximum development in the Hanefite law. An authority of the 12th century of our era, the Hedaya, gives us precise and detailed information concerning it, and we are somewhat surprised to meet with rules mentioned by Beaumanoir, and with principles established by English custom.1 Here too the executor appears as continuing temporarily the person of the deceased, as his active and passive representative. Moreover, in the Musulman law, as in the law of Southern France and of the German cities, the testamentary executor performs important functions in the guardianship of the minor children of the deceased. Finally like the Roman-German and the Byzantine law, so the law of Islam knows an ex-officio executor of testaments, the judge, who can name official administrators, in case the executors chosen by the testator do not perform their functions or happen to die.
The testamentary executorship thus played in the Middle Ages an essential part in the legal life of the civilized world. A complete history of testamentary executorship during the Middle Ages ought not merely to set forth the development of the institution in parts of the world apparently so dissimilar, but should also suggest the reasons which have given rise to it everywhere at the same time, and explain the striking resemblances which it presents under different conditions. Perhaps the cause of this parallel movement may be found in the universal spread of the idea of charity in the Frankish epoch and at the beginning of the Middle Ages, in the impulse then given to the relief of the poor, to pious gifts, and eleemosynary foundations. The world of Islam and the world of Christianity share in this movement. The Christian wants his goods distributed to the poor and to monasteries, the Musulman desires that his fortune may serve to organize pilgrimages to Mecca or establish philanthropic works. Both have taken upon themselves the duty of charity during life, and they do not want its accomplishment put an end to by their death. Their care is to find for the continuation of the task some person other than the heres institutus of the Roman law, a person who however like the heir will succeed to the rights and actions of the deceased, who will collect his goods and claims, to whom the estate of the deceased will not pass as to an heir or legatee, but who will deal with it as a master, so that it shall not become res nullius.
1 There is no indication of such an institution in the customs from which the law of the Frankish period sprang. Neither in the Roman law of the lower Empire, nor in the usages which ruled the Teutonic nations, are there testamentary executors. But the study of these customs reveals certain elements, the combination of which contains the germ of the institution.
In the 8th century, the executorship is found everywhere on the continent, and from that time we can trace its history easily. In the first centuries of the Middle Ages, this history is independent of that of the testament. The latter is unknown in Germany, and in the greater portion of France has disappeared under the influence of Germanic ideas, which are hostile to acts mortis causa, and require for the transfer of rights public acts inter vivos showing a surrender of seisin on the part of the alienor. The testament proper, as an unilateral and revocable act, is found hardly anywhere except in Languedoc and Italy. Everywhere else the executor is appointed by an act of delivery: the grantor transfers by act inter vivos a specific portion of his property (usually land) to the executor (eleemosynarius, wadiator), charging him to transfer in his turn upon his death the property to some other person or to the Church.
In the 12th century, under the influence of different causes, especially of the revival of the Roman law, the testament reappears throughout Occidental Europe, and the old executorship gains entrance into this new institution. From now on the executor is appointed by a will, and carries out its dispositions. At the same time the Canon law develops a system of supervision by public authority over the carrying out of wills. This is the era in which the executorship attains its highest development. And it is precisely the time when the executorship, together with the will, makes its appearance and becomes organized in the English law.
In the last centuries of the Middle Ages, finally, the institution enters upon a crisis, due to the renascence of the Roman law and its influence upon the customs. The Romanists revive the institutio heredis, and since the 13th century, in Italy and in Southern France, the heir gradually resumes the first place in the testamentary succession. Every advance of the heirship marks a step backward of the executorship. The executor ceases to be a channel of devolution; he loses all title to the goods of the deceased; he becomes a simple supervisor of the heir.
In Northern France the crisis came with less rapidity and intensity. During the entire Middle Ages, the executor’s seisin remained almost intact, exclusive of the seisin of the heir; the executor remains, down to the 16th century, the active and passive representative of the person of the deceased. True, since the 13th century the premonitions of decay are discernible in the possibility that the heir may under certain conditions exclude the executor from the seisin of the goods of the succession, in the increasing limitations upon the extent and duration of the executor’s seisin, in the appearance of residuary legatees distinct from the executors. But only since the codification of the customary law, especially in the 17th and 18th centuries, does this decay become pronounced, owing to the progress of the universal (legs universel) and the attacks of the Romanists. In the Civil Code of 1804, the executor has no real power; he is no longer the representative of the deceased, and his rights do not materially limit the right or the seisin of the heirs.
In Germany, the same crisis occurred only after the reception of the Roman law; until that time the executor retains his entire autonomy. But, since the 16th century, the Romanists and writers of the German common law, in order to define the position of the executor, put forward various theories, all tending to narrow his functions: some consider him as a mere agent of the heir. The first draft of the German civil code confirmed this effacement, and it required the efforts of the Germanic jurists to restore him to a portion of his ancient dignity.
In England the crisis came likewise, but it took another direction. It resulted in the aggrandizement of the powers of the executor: he assumes in the English law of succession a preponderance which the ends of the institution by no means required. In the 13th and 14th centuries the English executor had only limited powers and was the object of active supervision. In the 16th century he has become the almost uncontrolled master of the succession to the personalty, he pays himself in preference to other creditors, his debt to the deceased becomes extinguished, he retains the residue of the estate, the concurrent rights of widow and children of the testator to parts of the personal property have disappeared. The executor becomes like an appointed heir, or rather, in numerous points, he has more rights than an heir. Only in comparatively recent times has there been a reversion to a more appropriate measure of powers, and the most exorbitant of the powers, the right to retain the residue, has disappeared.
1 As we have seen above, the history of testamentary executorship begins in England only with the 12th century. In the law of the Anglo Saxon period, the right to dispose by a last will had been a privilege reserved to certain preferred persons, in derogation of the common law. It had been necessary to surround this testament with special guaranties. Hence the nomination of a guardian (mund) of the will (cwide). The intervention of a great person in the execution of a will might, to be sure, have more special objects than mere general protection; it might for instance be a means of bringing about a testamentary disposition of Folkland, not specially granted by charter, and hence subject to the common law of Germanic custom excluding wills. But even where the will disposes of Bocland, the charter of which gives the owner the right to leave it by will to a successor of his own choice, the testator will endeavor to obtain for his will the consent and protection of the King, for which purpose we find in some documents a gift to the King of the heriot. The mund is very different from the testamentary executor as we shall find him later on in the English law, and if we want to find some analogous institution on the Continent, we must think, not of executors, but of the adjutores and the defensores, who in the charters of the Middle Ages, guarantee and protect legal acts.
After the Norman Conquest the cwide disappeared, and with it the mund charged with its protection. When subsequently the testament developed in England, it presented, like the continental testament, executors to carry out its provisions. In order to trace the development of the institution in the English law, we shall study the growth of the following three rules, which characterize the position of the testamentary executor in the common law, and which have appeared successively in the order named: first, the executor receives the chattels of the testator; second, he is the representative of the testator, both for claims and liabilities; third, he has a right to the residue.
1 I. In England, during the Middle Ages, the seisin of the executors never embraced, as it did on the Continent, the entirety of the succession. One domain eluded them: that which was afterward called real property. The executors had their rights limited to personal property. At the very period when in England during the 12th century the testament developed, the English customs became strongly attached to the principle that no one can alien an immovable without entirely divesting himself of it during his lifetime, and they even required for the validity of gifts of immovables that the donor should be in sound bodily condition. This virtually amounted to a prohibition of testamentary disposition of immovables. Consequently the sphere of action of testamentary executors became restricted to movables.2
On the other hand, the executor became exclusively entitled to chattels: excluded from real property, he in his turn excluded any share of the heir in the personal property. This produced a complete separation within the English law; real and personal property became two independent spheres of law. After the Norman Conquest, the English system of succession took for its foundation the strict application of the parentelic system, with primogeniture and preference of males. This system was inapplicable to movables; and thus, as to them, the testamentary executorship had a chance to develop itself.
It is certain that this system of devolution of personal property did not spring into existence ready made. On the contrary, we have positive evidence of the end of the 12th century to the effect that at first the catalla, like the immovables, passed to the heir; and that the heir, with the catalla, paid the debts and performed the last will. This fact is clearly indicated in 1176 in the assize of Northampton.1 In the course of the 13th century, a modification took place. Gradually the heir ceased to meddle with the catalla, which became the exclusive domain of the executor. In 1215, the Petition of the Barons to King John, article 15, and the Great Charter, article 26, decide that the catallum of the deceased, shall be left to his executors, as soon as the debt due to the king, is paid, and we find the same rule in a great number of later texts, in the Great Charter of Henry III, article 18, in Bracton, and above all in the numerous documents of the rolls of Gascony relative to England from 1242 to 1254. The king commands his officers not to disturb the executors in the possession and administration of the catalla, and to cause to be restored to them such as may have been taken from them.2
The statement that the entire personal property soon came to fall into the hands of the executor is liable to be questioned on the ground that numerous documents of the 13th and 14th centuries show that the testator cannot dispose freely of all his movables. If he leaves both wife and children, he may dispose only of a third; if only a wife, or only children, then of one half of the catalla.1 Must we then not say that the executor is seised only of a third or one half of the movables, of the dead’s part?
The documents which inform us concerning this tripartite division of the decedent’s movables show at the same time that all movables are delivered to the executors. Thus in Bracton the two rules are stated side by side, and the rolls of Gascony always mention the delivery to the executors of all bona and catalla. These two rules, while apparently in conflict, are not so in reality. The personal property is handed over entirely to the executor; but he can perform the will of the deceased only with regard to the third or the half of the goods; he must return the other parts to the widow or children. So the Year Books show the widow and the children of the testator suing the executor to recover their parts. The doctrine of the pars rationabilis therefore does not limit the extent of the executor’s seisin, but merely his power of disposition. Strange to say, this relation between the executor’s seisin and the widow’s and children’s rights is not peculiar to England; we find it clearly in another country in which the tripartite division of the testator’s goods has been developed, to wit, in Catalonia: the executors there are seised of the entirety of the movables, but have to give one third to the widow, one third to the children, and distribute the residue according to the will of the testator. Moreover, we shall see presently that this right of the widow and children to the chattels has gradually disappeared.
Thus, as early as the 13th century, the executors have become the successors of the testator for the chattels, just as the heir receives the real property. They are in fact temporary owners of the chattels. The legatees, for the time being have only an imperfect and inchoate right to the legacy, and their right becomes perfect only through the assent of the executor. As long as this assent has not been given, the executor is sole master of the chattels; he alone can validly dispose of them. While many customs of the Continent limit the executor’s seisin to one year, the English common law provides, on the contrary, that during the first year the legatees cannot sue the executor to compel him to deliver the chattels.
This right of the executor to the chattels springs directly from the testament. It does not seem that the English law ever required a traditio inter vivos of the catalla, and the instances that can be adduced of such a delivery inter vivos are very rare. As early as the year 1100, the charter of Henry I (article 7) admits that simple words spoken on the deathbed can have the effect of passing the pecunia; a will without delivery may therefore give to the executors a right to the movables.1
The right of the executor, like every other right to personal property, is transmissible to his own representatives, to his executors.2 The requirement of words of inheritance to make property descendible to the successors of the donee, applies to real property only. However, when there are several executors, and one of them dies, his right passes, not to his own representatives, but to the other executors. This is no exception to the principle of transmissibility, but simply means, that, the executors being joint tenants, the rules of joint tenancy are applied to them; the survivor takes all the rights of the predeceased, and transmits them to his own representatives. From this results a chain of representation, a chain of executorship, which closes only when the last executor dies intestate.1
2 II. The representation of the deceased by the executor developed in England later than on the Continent. Only since the 12th century is the testamentary executorship known to the English customs, only from the 13th century on did the representation of the testator by his executors gradually establish itself. Certain obstacles stood in the way of the transfer of the claims and debts of the deceased to the executor.
In the first place, any assignment of a claim by the testator to the executor was almost impracticable. Obligations to the bearer, the use of which had in Italy rendered the transfer of claims from the testator to the executor possible, were almost unknown in England at the beginning of the 13th Century.3 Again, representation in court by an attorney is admitted, at the same period, in exceptional cases only.4 In Glanvil’s time, it is permitted, on principle, only in the Curia Regis; outside of that, the person who desires himself to be represented must produce a royal writ stating that the attornatio took place coram rege vel justitiis suis. Moreover the attornatio, where it is permitted, is terminated by the death of the person represented. Hence it was impossible to make the English executor either an assignee of a claim or an attorney.
Moreover, after the English law, in consequence of a concession which will be traced presently, has permitted the claims of the deceased to pass to the executor, it emphasizes in a striking manner the difference between a testamentary executor and an attorney. When the testator in his lifetime appoints an attorney, the attorney’s powers are revoked by the death of the principal, and in order that the attorney may after the death of the principal retain the benefit of the assignments and prosecute the debtor, he must apply to the executors, to whom the law has transferred the claim.
As for the payment of his debts, the testator may undoubtedly charge his executor therewith, but we know how imperfect this arrangement is, since it does not exclude the personal liability of the heir. At the end of the 12th century, it is still the heir who succeeds alone to the claims and debts of the testator, just as he receives the catalla. Such is the law as laid down by the Dialogus de Scaccario (II, 18), about 1177—1179, and, ten years later, by the treatise attributed to Glanvil (VII, 5).
A rapid development altered this condition completely. Since the debts become a charge on the chattels, and the entirety of the chattels must be handed over to the executors, why not give to the executors directly the duty of paying the debts? Why not, on the other hand, concede to them directly the recovery of claims, since the amount recovered will come to them ultimately? The active and passive representation of the deceased by the executor was thus the necessary consequence of his having become the sole successor to the catalla of the deceased. But this representation did not come about all at once: admitted by the ecclesiastical courts at first to a limited degree, then somewhat more liberally, it was finally, at the end of the 13th century, fully established by the royal justices.
Bracton’s Notebook reveals to us the first stage of this evolution.
On principle, the payment of the debts still devolves upon the heir, and the creditors of the deceased sue him in the lay courts (n° 1543, 1693). But as early as 1219 an heir demands a continuance in order to ascertain whether the deceased has not in his will mentioned the debt sued for; for in that event it ought to be paid, not by him, the heir, but by the executors (n° 52). Again, in 1222, the executors are sued in a court christian, and the action against them encounters a writ of prohibition, because the debt is not mentioned in the will (n° 162). It appears from these two decisions that debts named in the will are payable by the executors and not by the heirs.
As for the recovery of claims, it is again the heir who on principle represents the deceased. Twice, in 1231 and 1233, executors bring suit in the ecclesiastical court against the debtors of the deceased, and both times they are met by a writ of prohibition (n° 550, 810). But this prohibition relies no longer upon an absolute intransmissibility of the claims to the executor; this intransmissibility is only relative. The executors are barred from their action, because the claim has not been judicially established or acknowledged during the testator’s lifetime, and therefore was incapable of being bequeathed. This view is confirmed by a note to a judgment of 1231. “Nota quod in extremis non potest quis legare actiones suas, et maxime de debitis que petita non fuerunt nec recognita in vita debitoris.” Bracton thus seems to concede that the claim of the deceased might be transmitted to his executors, if it had been acknowledged during the lifetime of the testator, and he gives as a reason that the claim so acknowledged constitutes part of the goods of the testator and is transmitted with them.1 In fact the Notebook shows on two occasions executors recovering, without any question being raised, claims of the deceased. So, in 1231, we find testamentary executors vested with a claim secured by a mortgage, and granting to third parties some rights in the land thus pledged.2
Bracton, embodying in his treatise (written between 1250 and 1258) the decisions referred to in his Notebook, as yet considers the heir as the true representative of the deceased.1 Yet we must ask whether at that time the development has not considerably advanced beyond that stage. The rolls of Gascony of 1242 and 1252 seem to regard the testamentary executors as the active and passive representative of the testator. True, in a compromise between the King and one of his debtors (No. 347, 367), it is agreed, that the heirs of the debtor shall pay his debt, and that the executors shall dispose of his goods; but we have here a covenant, a specialty binding the heir, which later on becomes necessary in order to hold the heir for the debts of the deceased. In all the other cases, action for the debt of the deceased is brought against the executors (77, 457, 1386). Moreover the executors bind themselves to pay to the King the debts of the testator that might hereafter be discovered (1820, 2750, 3487, 3534); their responsibility is thus no longer limited to the debts mentioned in the will and acknowledged by the deceased. On the other hand the King directs his bailiff to pay to the executors, and not to the heirs, the sums which he owes to the testator (1672, 3114, 3137).
The wills of the same period show that the clause binding the testamentary executors to pay all the debts of the deceased has become a common form. It is found regularly in the wills registered since 1259 in the Hustings Court of London, and it is generally accompanied by particular directions as to the goods chargeable with the payment of debts.2 On the other hand, in 1248, an Archdeacon of York, by his will, places at the disposal of his executors “omnia sua, tam debita, quam ubique locorum inventa sint;” which implies a transfer, without distinction, of all claims of the deceased in favor of the executor.3
These illustrations show that as early as the middle of the 13th century, the executor was according to the English view the true successor to the claims and debts of the deceased; and the English common law would have adopted this solution very quickly, had not the question of principle been complicated by a conflict of jurisdictions.
It was through their connection with the will, as testamentary causes, that the “actions of debt” by or against the executors had been allowed by the courts christian;1 but this method of procedure threatened to derange and alter the theory of contracts. The courts of the church, under pretence of restraining every breach of promise (fidei laesio), indirectly came to validate obligations that were not binding in the eyes of the lay courts. Moreover, they proved to be much less strict than the lay courts about the proof of obligations; and so the death of the debtor or creditor, by changing the jurisdictions admissible for the action of debt, had its effect upon the contracts themselves.
This is the reason why the lay justices were led to contend against the justices of the Church, with a view to retain or recover, not a general jurisdiction in matters testamentary, but a special jurisdiction in the matter of actions of debt by or against the executors. In order to prevail over the ecclesiastical courts on this point, the lay courts in their turn consented to treat the executor as the active and passive representative of the deceased.
A rapid development transferred from the courts of the Church to the lay courts the actions of debt to which testamentary executors were parties. A register of writs of the first years of Edward I shows that there are some who allow to the executor a breve de compoto reddendo, and that this action, being testamentary, belongs to the church. But some time afterward, between 1279 and 1285, the Articuli cleri show the English clergy complaining of the prohibitions encountered in the actions brought against the debtors of the deceased by testamentary executors in the ecclesiastical courts. The advisers of the King answer that the executor must not occupy, as against the debtors of the estate, a better position than the testator himself; in the courts of the church, the executor might prove the debt “per duos testesminus idoneos,” while the defendant could not defend by the oath and the other methods of defence admitted by the temporal courts, and would thus find his position impaired by the death of his creditor.1
It is certain that even before 1285 the temporal courts assumed cognizance of actions of debt brought by or against executors; for at that date the Statute of Westminster Second gives executors in the temporal courts the breve de compoto reddendo (13 Ed. I, c. 23); at the same time, it requires the ecclesiastical Ordinary, successor to the goods of an intestate, to pay the debts of the deceased “in the same manner as testamentary executors (c. 19).” Thus the executor becomes in the temporal courts the active and passive representative of the deceased. No doubt, in 1287, the synod of Exeter (c. 50) excommunicates debtors of the estate who prevent testamentary executors from prosecuting their claims before the courts of the Church. But these protests are of no avail. About 1290, while Fleta, under Bracton’s influence, seems wavering,2 Britton is quite positive: though testamentary causes belong to the courts of the Church, nevertheless the actions of debt belong to the temporal courts exclusively.3 From about the same time, the Year Books4 and the Rolls of Parliament5 leave no further doubt. The debts and claims devolve upon the executor; and the actions to which they give rise belong to the temporal courts.
Thus the English temporal jurisdictions, following the example of the courts christian, established the active and passive representation of the testator by his executors. The heir is no longer held for the debts of the ancestor, unless the latter has covenanted for himself and his heir, later on called a specialty binding the heir.6
We must not however exaggerate the practical importance of the development thus far traced. The actions which are transmitted from the debtor or creditor are not yet numerous. It was in connection with the action of debt, that in the course of the 13th century the struggle was fought out, first between the heirs and executors, then between courts christian and courts temporal. The breve de compoto reddendo, which the courts christian had endeavored to secure to the executors, was given them by the lay courts after 1285. But the actions founded on injury to the person or property of the testator or on injury done by him remained absolutely intransmissible. The English law applied rigorously the rule: actio personalis moritur cum persona. A series of reforms, leaving the principle intact, restricted the scope of its application. The first step in that direction affected the executor’s active representation, and was taken in 1330 by the famous statute of Edward III “de bonis asportatis in vita testatoris,” which gave to the executors the action of trespass that had accrued to the testator by reason of damage done to his personal property (bona et catalla; 4 Ed. III, c. 7). This statute was later on interpreted most liberally; but it extended neither to injuries done to the person of the testator, nor to damage done to his real property. On the other hand, as regards the executor’s passive representation, actions founded in tort became extinguished (according to the doctrine of the Middle Ages) with the death of the wrong doer; it was only conceded that the executor might be held for the benefit (in money or goods) received by the wrong doer. Only in the 19th century was an action given against the testamentary executors for the damage done by the testator within six months prior to his death, to the property (real or personal) of a third person; and on the other hand, an action on behalf of the executors for damage done to the real property of the testator within six months prior to his death. As regards actions founded on personal injuries, they have remained practically intransmissible, both in favor of and against executors. Even in contractual matters, the transmission of claims and debts to the executors had not in the 13th century the importance which it subsequently assumed; for it must be remembered that in the English law the system of contracts at the end of the 13th century was very imperfectly developed.
Thus the English law gradually came to make the executor the active and passive representative of the testator. Claims and debts of the deceased devolve on him, as they did on the heir in Rome,—a resemblance noticed by English writers.1
But what happens, if the debtor of the deceased or the creditor of the deceased is the executor himself? What will result from the concurrence in the same person of the two capacities of creditor and debtor? The English common law has not hesitated to accept the extreme consequence involved in the idea of representation: the claim of the executor against the deceased, his debt to the deceased, becomes extinct by merger. The English writers while not using the word, state the fact. If the testator appoints his debtor as executor, he thereby releases the debt. For a claim, the English writers say, is nothing but a right to recover a sum of money by action. Since the executor cannot sue himself, the appointment of a debtor to the office of testamentary executor of his creditor suspends the right of action arising from the claim. But when an action is suspended voluntarily by the person who might have brought it, it is regarded as permanently extinguished. If the testator appoints his creditor as executor, the doctrine of the common law is more complex: as soon as the executor gets possession of the assets of the estate, his claim becomes extinct; and if there are co-debtors, the creditor can no longer sue them. But the English law gives to the executor a right of retainer; he may pay himself out of the assets, in preference to other creditors of the same rank.
Such is the doctrine of the common law. When was it introduced? We cannot tell. English custom has conferred upon the executor exorbitant rights, without it being possible to follow the stages of the evolution.
1 III. The bestowal of the residue upon the executor has likewise assumed in the English law a much more pronounced character than that given to it by the customs of the Continent. On the one hand, while on the Continent a formal clause of the will is required in order that the residue may belong to the executor, at common law the residue of the catalla belongs to him as of right. On the other hand, while in the continental customs the residue is handed to the executor merely for the purpose of distribution, at common law, the residue belongs to him, and he retains it for himself.
This is one of the best established rules of the common law; yet its origin is obscure. The English wills of the 13th century rarely contain a residuary disposition; as a rule they are made up of a number of particular bequests. What, then, becomes of the residue? In the silence of the authorities, a positive reply is impossible. Yet the thought occurs that the same reasons that have kept the heir of the real property from any administration of the catalla must also have rendered difficult any claim of the heir concerning the residue. The heir of the real property must have very rapidly lost all relation to the catalla, from the point of view of the residue as well as from any other.
It is true that wife and children have a right to a part of the catalla; but just because this part is fixed by custom, it is difficult for them to raise claims to the “dead’s part,” i. e. the residue, and it is very probable that this part, even in the absence of a formal clause in the will, was expected to be applied entirely for the good of the soul of the deceased.
It is also possible that the rules relating to the assignment of the “dead’s part” to the executors have been influenced by rules relating to its assignment to the administrators (who also, at that time, were called executors). The administrator may dispose of the dead’s part of the deceased: why should the executor, chosen by the deceased and enjoying his confidence, not have the same right? As soon as the executor has distributed the legacies expressly given by the deceased, he finds himself, as to the residue of the “dead’s part,” in the same position as the administrator. We therefore believe that in the 13th or 14th century (beginning at a time which it is impossible to fix now) the executor had the power, in the absence of any testamentary clause, to distribute for the benefit of the soul of the deceased the residue of the “dead’s part,” without having to restore it to the heirs of the deceased.
But we are here as yet far from the final result reached by the common law, for: 1. The executors cannot dispose of the residue of all the catalla, but only of the residue of the “dead’s part.” 2. They may not keep that residue for themselves, but must distribute it for the benefit of the soul of the deceased.
And first, as we have seen above, the testator cannot dispose freely of all his chattels. If he leaves a wife and children, he can dispose only of one third; if he leaves a wife or children, he can dispose only of one half. Hence the executor’s right can extend only to the residue of the third or half, the “dead’s part.” The other parts he must restore to the widow and children. But the rights of the widow and children have gradually disappeared from English custom, without it being possible to say at what time the transformation took place. As early as the 16th century the division of the catalla into two or three parts ceased to exist in a great portion of England, while it survived until the 17th century in London, Yorkshire, and Wales: only at the end of the 17th and the beginning of the 18th century several statutes brought uniformity to the English law on this point.
Moreover, even with the limitation mentioned, the residue was not absolutely free in the hands of the executor; he was not allowed to keep it for himself. He had to distribute it for the benefit of the soul of the testator. His large powers over the residue were like those of an executor in the continental law to whom a formal clause has given the right to distribute the residue; he was a distributor, and not a beneficiary. This resulted at first from the very nature of the “dead’s part,” the third or half reserved to the deceased. The division of the succession did not contemplate the enrichment of the executors, but the benefit of the soul of the deceased, and that third part, in the absence of a contrary clause, must be devoted to pious works. This appears from numerous wills of the 13th century; whenever these instruments speak of the residue, it is to charge the executors to distribute it.1 The same is still true in the 14th Century: the executors receive the residue to distribute, not to keep it; they must distribute it “in periculo animarum suarum”; and they will answer for it before God “in tremendo judicio.”2 At this time also, the English councils and synods prohibit the executor from keeping, on whatever pretence, the goods of the succession. The synod of Worcester (1240), c. 49, the council of Lambeth (1261), the synod of Exeter (1287), c. 50, and the council of London (1342), c. 7, declare that the executor has no right to retain any part of the goods of the deceased, save as creditor or legatee. At most the bishop is permitted, when the succession is considerable, to allow the executor a small remuneration pro ipsius labore.
We find, however, in the 14th century, in several wills which increase in number as we approach the end of the century, legacies of the residue by which the testator transmits this residue, not to be distributed, but to definite beneficiaries. One fact is to be noticed: while in France these dispositions were made for the benefit of third parties other than the executors, in England, in the great majority of cases they are made to the executors themselves, or to some of them. By virtue of such clauses the executors take the residue, not to distribute but to keep it.3 Moreover in some instruments the legacy of the residue is expressly given to the executor as such, and the testator takes care to declare formally that if the executor, who is also residuary legatee, will not take upon himself the execution of the will, he shall not be allowed to claim his legacy. So in 1395 a widow has appointed her son as “chief executor” and has bequeathed to him the residue of her goods; but she adds that if her son should refuse execution, the residue shall be distributed among the other executors.1
As these instruments prove, the English custom, at the end of the 14th century tended to regard the two capacities of testamentary executor and of residuary legatee as tied up with each other. At what moment did this usage become a rule of law? We cannot say. We can only state the point of departure of this development, and its final outcome.
This final outcome is clear. If the deceased has not named in his will a residuary legatee, then according to the common law the executors must collect the residue of the personal property, and they may apply it to their own use. Their position is in this respect exactly like that of the Roman heir, whose right may be limited in fact by particular legacies, but who has a contingent claim to the entirety of the succession. In English law, all disposable goods not charged by the testator with a fixed application go to the executor and belong to him as his own. This rule is clearly formulated by Blackstone: “If there be none (residuary legatee),” he says, “it was a long settled notion that it developed to the executor’s own use, by virtue of his executorship,”2 and in Blackstone’s time this rule is set aside in equity only when it conflicts with the clear intention of the testator, as e. g. where the testator has given the executor a fixed legacy.
It may even happen that the executor receives not merely the residue, but all the chattels. In England, as on the Continent, in the Middle Ages, a custom grew up for those who, surprised by death, had not the time to regulate in detail the disposition of their goods, to name simply a distributor, a commissarius, leaving it to him to distribute at his discretion the goods of the decedent. This practice, quite opposed to the principles of the Roman law, is found everywhere in the 13th century. In 1216 King John, attacked by a sudden illness, entrusts the ordinatio and dispositio of his property to thirteen faithful friends, leaving to them the care of distribution. In vain did Innocent IV, about 1246, declare such testaments void, and wanted to treat those, who were content to name an expressor et executor, as intestate. The Fleta and Britton declare that one may leave “simplement sauntz aucune especialté . . . sa dreyne volunté en la distribucioun de touz ses biens moebles en la ordinounce de acun ami.” So the mere appointment of an executor is enough to constitute a will.1
These executors, appointed without any directions, were, in the 13th century, certainly required to distribute the chattels, at least the dead’s part, for the profit of the soul of the deceased. But gradually they are allowed to retain the dead’s part, then the entire personal property, and thus the mere appointment of an executor has become in the common law the equivalent of a bequest of all the personal property for the benefit of the executor.
Not until 1830 is it provided by statute that the executors shall be regarded by the courts of equity as trustees for the benefit of the persons named in the statute of distributions as takers in case of intestate administration, namely, the next of kin. Only in our days therefore has the English law come back to the rule which never ceased to be observed on the Continent: the residue belongs to the executor only if expressly so provided by the testator. The Scotch law, as early as the 17th Century, had done away with the extraordinary common law power of disposal, by putting again into force the tripartite division of the chattels and by limiting to the “dead’s part” the right of the executor to keep the residue.
But it is not our task to trace through modern times the history of testamentary executorship. We have even omitted in this study many features of the institution in the Middle Ages. We have said nothing of the essential duties of the executor on entering upon his office (burial of the deceased, probate of the will, inventory); nor of the rules established by the English councils with regard to the supervision and control of the executors by the public authorities; nor of the creation of judicially appointed executors, the administrators cum testamento annexo. We merely wished to sketch the fundamental features which the institution presents on the common law, and to trace their development. We wished at the same time to indicate the importance of the executorship in the English law. It is there, what the institutio heredis is in Rome, caput atque fundamentum totius testamenti. In the 17th century, Swinburne and Godolphin declare that “the naming or appointment of an executor is said to be the foundation, the substance, the head, and is indeed the true formal cause of the testament, without which a will is no proper testament,” but only a codicil. There are even some decrees that say that, without an executor, a will is “null and void.”
Certainly, the evolution of the institution is not closed. The Land Transfer Act of 1897 has given the executor a new function in committing to him not merely the personalty but the realty, in making of him a representative of the deceased for the entire succession. The future, which alone can tell what the consequences of such a reform will be, may perhaps yet give a new lease of life to the old mediæval institution, which, when it declined on the continent, retained such vitality in the English law.
THE RISE OF THE ENGLISH WILL1
AS the first step to any stable theory of the post-mortem disposition of property, whether by testacy or by intestacy, it must be observed that the idea of absolute property forever in any particular owner, as in the case of an estate to a man and his heirs forever, is a fiction,—a useful fiction probably, but still a fiction. A grant to a man and his heirs forever is a grant to each grantee forever; the “heirs” have nothing in the estate granted. The grant therefore is to the grantee as if he might live forever, which manifestly is impossible, so far as this present life is concerned; and it is certain that no man can take his property with him after death. There can be no such thing then as absolute property forever, in the true sense of the term.
It is no answer to say that a man may be considered to live in his posterity, or even, to put the case still stronger, that a man holds posterity in his loins; for either form of statement is as much a fiction as the one first mentioned. The childless man is conclusive of the point. Nor is it an answer to say that the owner of property may sell or exchange it for things consumable (if it be not consumable itself), and then consume the substitute; for in the case in hand the property, whether consumable or not, has not been consumed. Though it or some substitute might have been used up, as a matter of fact it has been left, and it is now to be disposed of at death. The answer supposed confuses the notion of “absolute” property, or one’s power over things, with the duration of such power. As a mere matter of power, a man may certainly own property “absolutely.”
Considered, however, as a theory, as it must be, how is the theory of ownership forever to be worked out? With cases of testacy there would be no difficulty; the testator is dealing with his own, and acting in person. In cases of intestacy the theory can only be worked out upon the idea of an implied agency in the State; the State acting for the owner in case of his failure to dispose of the property. But it is plain that such an agency can only stand upon a footing wholly unique and unlike any other. In the first place the supposed agency would be confined, as a matter of fact at least, to giving; it would not extend to selling or otherwise contracting. In the second place the supposed agency would go into operation where recognized agency ends, with the death of the principal. And in the third place the agency would be irrevocable. Agency cannot be stretched to such a point. And the same will be found true of any other term that may be used to do duty for the idea of acting for one who is defunct.
On what support then can a stable theory of post-mortem disposition be placed? Discordant answers have been suggested.
One answer is, that the title to property, subject to life ownership in a grantee, is in the State, and, but for the fact that the State has thought best to allow such grantee to designate the course of the property after his death, it would always revert to the State upon the death of the grantee. This view of the case, it may be noticed, has nothing to do with original ownership in the State, except inferentially: it proceeds upon the notion that the State has some sort of reversionary right upon the death of its grantee in fee and of each of his successors in ownership, because in the nature of things no man can hold property forever. The theory of perpetual ownership collapses the moment it is put to the test, according to this view. I hold to myself and my heirs forever, the grant declares; but after my death the property becomes the State’s, though the State allows me, by some sort of agency, to dispose of it. That fact, however, has no bearing upon the soundness of the theory of State ownership.
What then are the facts upon which this last named theory rests or derives support? And how does the theory work out its result? These questions in order.
Intestate laws strike one first. The State regulates the disposition of property at the death of the owner if the owner fails to dispose of it. And it may be noticed that the owner may so fail, not merely by making no attempt, but by making an attempt that does not conform to law. How, it might be urged, can the State interfere in such a way except upon the footing of ownership? The act of disposition is an act of dominion. If the State does not become owner at the time of the State’s action, then the State cannot give the property, except by an exercise of arbitrary power, which means robbery. Again, if the State does not acquire ownership at the death of the grantee, who does? Not ordinarily the next of kin, in the case of personalty; in most cases1 the State hands the property over to the executor or administrator. Not the heir, it might be said, even in the case of realty; the State hands the property over to him.2 The State so hands the property over even against specific legatees or devisees, though there is no reason in the nature of things why the legatees or devisees might not take directly subject to the claims of creditors.
Another fact which may be deemed to support the idea of State ownership is connected with what is called title by occupancy. The taking of really vacant property would seem to give to the taker ownership by natural right. But we are told that “this right of occupancy, so far as it concerns real property . . . hath been confined by the laws of England within a very narrow compass.”1 It seems to have been allowed, in real property, even at the first in but a single case, namely, in an estate for the life of another (“pur autre vie”), the tenant dying during the lifetime of that other person (“cestui que vie”). In such an event any one might enter upon the land and hold it during the unexpired period of the estate, that is, until the death of “cestui que vie.” But this right was reduced almost to nothing in the seventeenth century by statute. That is, according to the view of State ownership, the State acted upon the principle or belief that the ownership had never been vacant; the entry of the new occupant was by mere permission, which the State now withdrew.
A more particular case, looking it may be thought towards State ownership, may be brought forward. Statutes exist touching any right of adopted children to inherit property of their parents by blood. Whether such children can so inherit is determined by statute; the State, it may accordingly be supposed, gives or withholds. To the suggestion that adopted children have no “natural” right to the property of a deceased parent by blood, the answer has been given from the bench that the suggestion is idle “for the reason that the statutory right is perfect and complete”; heirship being “not a natural, but a statutory right.” Hence the State may increase the number of a man’s heirs and cut down the shares of the others accordingly.2
These are a few out of many like instances that might be mentioned; but all may be comprehended in the statement that both intestate and testate disposition of property is a matter of statute; in other words, of regulation by the State. The State, it may therefore be thought, must be the owner; and besides, the State lives or may live forever, or at any rate it is expected to outlive the life of individuals, and therefore fulfils by possibility the requisite duration. And the State’s grantee and his successors have permission or appointment, so the argument would run, to act instead of or for the State in disposing of property to pass at their death. We have, then, according to this theory, State ownership, with agency in the holder as a supplementary theory by which disposition post-mortem is worked out. Can this doctrine be put aside?
The question may be answered indirectly in the course of propounding another, and what appears to be the true, theory of law; which may be put thus: In the case of intestacy the State acts as an intermediary, in behalf of the public welfare. If no provision for the disposition of the property were made, the property at the death of the owner would become vacant, and a scramble would be apt to follow, the result of which would be as likely to be undesirable as the contrary. To prevent the property becoming vacant, the intestate, accepting a virtual offer by the State to act upon certain established terms, to wit, the intestacy statutes,—for in effect these are only an offer,—commits or leaves the property to the State, to distribute it upon those terms.1 In this view the intestate has a well founded belief that the disposition which the State proposes is just and may save trouble, and possibly embarrassment and failure; and experience shows that in point of fact this is true in most cases, where attention has been called to the matter at all.
In the case of testacy it would seem at first that a theory actually prevails that the testator, in disposing of property owned by him absolutely, is disposing of his own, as much as when he gives or sells to take effect in his lifetime. But looking below the surface, this may after all be considered as merely concealing a distinction between ownership and title. The idea of testate disposition, when closely examined, appears to be no more than this, that, whatever may be true of ownership in the sense of holding and enjoying, a person’s title may run on after the death of the person having it, wherever the grant or devise is to him and his heirs. Title accordingly means authority to dispose of; in that sense, obviously title may be served from ownership, and indeed have no connection with it.
It may be objected that this is using the word title in a sense out of the ordinary, and making it do duty for an idea foreign to it. But that is not true, as appears from the legal phrase “right and title to convey”; at any rate, the word is easily capable of the meaning given to it; and when understood accordingly, it is consistent with the fact that ownership, in the sense of having and controlling in the name of ownership, comes to an end with the owner’s death, even though he holds “to himself and his heirs forever.”
That fact should be emphasized; one’s ownership or having necessarily comes to an end with death. What would then happen but for a power of disposition resting somewhere, where it could and ordinarily would be exercised so as to preserve and help on the social instinct which seeks to draw men together in the State,—that has already been suggested. The property would become vacant, and, according to its value, a thing to be scrambled for. Society, the very purpose and product of the social instinct, would be pulled apart upon the death of the first man having property enough to excite a scramble. To prevent such a catastrophe the absolute owner has “title” or authority to make a will, as the one most likely to act in accord with the social instinct; and in event of his failure to act, the State exercises the authority.
Thus disposition by testacy and disposition by intestacy stand upon the same footing and are expressions of the same deep purpose, to wit, the prevention of a vacancy and the failure of what is the very foundation of society and order, the social instinct. They do not express any theory of State or individual ownership of property forever. The individual in the case of testacy, the State in the case of intestacy, is an intermediary.
If still the question is raised, from what source emanates the authority which confers ownership upon devisee, legatee, or distributee, the answer is, the social instinct.1 The power of disposition is conferred upon the owner or upon the State; it does not emanate from either. Nor does it emanate from the social instinct as fictitious owner of the property; the power is the expression of the social instinct as a social and political necessity. Ownership is not a necessary condition to conferring ownership.2 To maintain the social order, power or authority, without being synonymous with robbery or injustice, may act and confer ownership. So it does act, it is conceived, in the matter of post-mortem disposal of property.
It does not make against this theory that in early times, among our Germanic ancestors, property always fell to heirs after the tenant’s death; that is, that a property owner could not make a will having any force or effect in regard to the descent of the property. For, to put the case in the usual way, the property belonged to the family, as a sort of corporation; while the family continued, the community had nothing in the property. It is a different way of putting it, but it is probably true, also, to say that the property fell from father to child rather than, through a vacancy, to the man who could first lay his hands upon it. It was better that the late tenant’s kin should have it; and the only interest the community had in the matter was to see that the kin did have it. That interest on the part of the community was, however, the interest of self-preservation; not to regard it would be to invite anarchy to tear society to pieces.
It is obvious that the same was true in feudal England, when the right to make wills, admitted and practised of goods and chattels, was cut off in respect of land.1 Except as original source of right, with right of escheat on failure of heirs, the State was not deemed owner, resuming its own upon the death of the tenant, and then making a gift of the property to the next taker. It acted then as before, and as at the present time, as an intermediary, to see that the social fabric should not perish. The transfer made was a transfer by rightful authority or power, not the gift of an owner.
Such appears to be the actual theory of the law. Still it is probably true, as has already been observed, that in the earlier period of the races which later became English, wills were not in use. The appearance of wills in the Germanic codes (the Leges Barbarorum) of a later time, was due to contact with Roman jurisprudence, and was borrowed from that source of civilization.2 In the earlier period A’s cattle, upon A’s death, regularly passed to A’s heirs, if he had any; A could not prevent it.3 This fact directly raises another sort of question which the theory above presented naturally suggests, namely: Intestate disposition being the rule, how did disposition by will come about? Whence it came has already been noticed; it was the gift of Rome’s expiring civilization to Rome’s rude conquerors, awakened at last, by closer contact with that civilization, to a better life.4 But how did the making of wills come to be allowed? Equality, at least among male children, and indeed among daughters in the absence of sons, was the inveterate principle of the Germans in their original abodes north and east of the then conquering eagles of Rome.1 Wills necessarily implied inequality.
The process by which wills came to be recognized appears to have been as follows.2 The earliest lawful wills of our Germanic ancestors were based, it seems, (1) upon failure of kindred near enough, that is, within the family, to take by the regular method, intestacy; or they were (2) gifts of property to which such kindred had no direct claim. To find the evidence for the first of these cases would take us too far afield into early Germanic usage; for evidence of the second, it is not necessary to go back to the earlier home of the English people. It is still true, many centuries after the migration, in Norman England. Lands acquired by inheritance as family domain were considered more or less like entailed property, that is, property in which the “heir” had a legal interest in the lifetime of the tenant, so that the heir’s consent was necessary to any transfer even inter vivos.3
The words of inheritance in our modern deeds, “to A and his heirs,”4 were, in their Latin form, “et suis hæredibus,” first brought into use in England in the twelfth or late in the eleventh century, following upon the establishment, effected towards the close of the eleventh century, of the (English) feudal tenures, in the case of feoffments or gifts of fiefs or feuds by lord to tenant. At the same time, it may be noticed, in immediate connection with these words of inheritance, reciprocal words declaring that the fief or feud was to be held of the feoffor “and his heirs” were introduced into the (oral or written) conveyance. The feoffment contemplated a relation forever between the donor and descendants and the donee and descendants.
In the times referred to, the “heir,” as we have said, deemed himself in some sort included in the original gift of the lord, either as quasi tenant in tail, or as having some other interest of which he ought not to be deprived without his consent. In other words, the heir considered that he took, in modern phrase, by purchase. But the case was different in regard to lands which the ancestor had himself added to his estates by acquisition of his own.1 With property so acquired the right of will-making, in regard to land, practically begins.
Testamentary disposition of personalty was everywhere much earlier, though not in western Europe, without important limitations. In the latter part of the thirteenth century Glanvill tells us that a man’s goods were to be divided into three equal parts, one for his heir, another for his widow, the third to be at his own disposal.1 If he died without a wife, he might dispose of one half, the other half going to his children if any; if he had no children, his wife, if he had a wife, was to have half; and if he died without wife or children, he might dispose of the whole. Subject to differences of local custom, this continued to be true until the time of Charles the Second.2 By this time personalty might be disposed of by will freely in the greater part of England,3 the claims of the widow having continued, however, after those of the children had disappeared.4
The rise of primogeniture under feudalism in the Middle Ages appears to have created the occasion and demand for testamentary disposition. Originally, that is, before the fall of the Roman Empire, children among the German races, as we have seen, took equally; primogeniture, which of course destroyed all equality, was a thing of slow and gradual growth, beginning here and there with the feudal tie among the conquerors of Rome, and finally spreading over Europe; though not without admitting in various places some different custom, such as borough English, the converse of primogeniture, but equally fatal to the idea of equality among the children. And now, “as the feudal law of land practically disinherited all the children in favor of one, the equal distribution even of those sorts of property which [still] might have been equally divided ceased to be viewed as a duty.”5 And the way to carry out the owner’s wishes, as a practical matter of method, was pointed out by Roman jurisprudence and usage. The clergy produced the Roman will, and used it as a model for the purpose in hand. The will has accordingly been called “an accidental fruit of feudalism.”1
It should be added that primogeniture did not come into full operation in England until after the Norman conquest. On the Continent, however, it had gained full sway much earlier; hence we must turn to the Continent, as we have done, to find the statement true that testamentary disposition was due to primogeniture.2
MARRIAGE AND DIVORCE UNDER ROMAN AND ENGLISH LAW1
IN all communities that have risen out of the savage state, no legal institution is at once so universal, and also so fundamental, a part of their social system as is Marriage. None affects the inner life of a nation so profoundly, or in so many ways, ethical, social, and economic. None has appeared under more various forms, or been more often modified by law, when sentiment or religion prescribed a change. In a famous passage which has been constantly quoted, and often misunderstood, Ulpian takes marriage as the type of those legal relations which are prescribed by the Law of Nature, and extends that Law so far as to make it govern the irrational creatures as well as mankind. If then the relation be so eminently natural, one might expect it to be also uniform. Yet it so happens that there is no relation with which custom and legislation have, in different peoples and at different times, dealt so differently. Nature must surely have spoken with a very uncertain voice when, as the jurist says, she ‘taught this law to all animals.’ Nor does this infinite diversity show signs of disappearing. While in most branches of law the progress of parallel development in various civilized states is a progress towards uniformity, so that the commercial law, for instance, of the chief European countries and of the United States is, as respects nineteen-twentieths of its substance, practically identical, the laws of these same countries are, in what relates to the forms of contracting marriage, the effect of marriage upon property rights, the grounds for dissolving and modes of dissolving marriage, extremely different, and apparently likely to remain different. Even within the narrow limits of the United Kingdom, England and Scotland have each its own system. Ireland has a different law from England in respect of the mode of solemnization; while, as respects divorce, the divergence goes so far that grounds are recognized as sufficient for divorce in Scotland which are not admitted in England, while in Ireland a divorce, except by private Act of Parliament, cannot be obtained at all. And the efforts to assimilate these three diverse systems made by reformers during two or three generations have been followed by so little practical result that they have been of late years altogether dropped.
Out of the long and obscure and intricate history of the subject, and out of the many still unsolved problems it presents, I propose to select one subject for discussion, viz. the history of the Roman law of the marriage relation, as compared with the English law, and particularly with some of the later developments of English law in the United States. On the antiquities of the matter, and in particular on the interesting and difficult questions relating to primitive forms of marriage, and to the polyandry which is supposed to have marked the earlier life of many peoples, I shall not attempt to touch. Neither can I do more than glance at the ecclesiastical history of the institution, important as the church has been in influencing civil enactments and moulding social sentiment.
To elucidate the Roman system, some few technical details must be given, but I shall confine myself to those which are needed in order to facilitate a comparison between it and that of England, and to show how essentially the later Roman conception of the relation differed from that which Christianity created in mediaeval Europe.
Character of Marriage in Early Law
When clear light first breaks upon the ancient world round the Mediterranean Sea we find that the relation of the sexes exists in three forms. The most savage tribes, such as those which Herodotus saw or heard of in Libya and Scythia, have no regular marriage at all. Some lived in a kind of promiscuity; some were probably polyandrous. The Eastern peoples—Persians, Lydians, Babylonians, and so forth—are polygamous, as was Israel in the days of Moses and Solomon, though in a much lesser degree after the Captivity, and as was the Trojan Priam of the Homeric poems. The Western peoples, and especially the Greeks and the Italians, were, broadly speaking, monogamous, although concubinage superadded to lawful marriage, especially among the Greeks, was not unknown. The contrast of the East and the West was marked; and this particular difference was not only characteristic but momentous, since it presaged a different course for the social development of the two regions.1 So when the Teutonic and Celtic peoples came later on the stage, they too were generally monogamous, though among the heathen Celts the tie seems to have been somewhat looser than among the Teutons, and a plurality of wives may have been not uncommon in heathen times. Tacitus, while dwelling on the sanctity of German marriages, observes that occasionally the chieftains had more than one wife, owing to the wish of other families for alliance with them.2 Polygamy slowly died out of the East under Roman rule, though possibly never quite extinguished, for we find prohibitions of it renewed by the Emperors down to Diocletian, before whose time all subjects had become citizens. It maintained itself in the Oriental court of the Sassanid kings of Persia, and was indeed one of the features of Persian life which most shocked the philosophers of the later Roman Empire. As there is no trace of it in the Roman law,1 it need not concern us further, since it has never, except in the singular instance of the Mormons, reappeared in any of the communities which have been regulated either by Roman or by Teutonic law.2
Before describing the Roman system, let us note three general features which belong to the marriage customs, not indeed of all, but certainly of most peoples in the earlier stages of civilization. They are worth noting, because they constitute the central threads of the history of the relation during civilized times.
(1) The marriage tie has more or less of a religious or sacred character, being generally entered into with rites or ceremonies which place it under supernatural sanctions. This is, of course, more distinctly the case where monogamy prevails.
(2) In the marriage relation the husband has a predominant position both as regards control over the person and conduct of the wife, and as regards property, whether that which was hers or that which was brought into common stock by her and by him.
(3) The tie is comparatively easy of dissolution by the husband, less easily dissoluble by the wife. This is a natural consequence of the inferior position which she holds in early society.
Although these three features are generally characteristic of the earlier stages of family law, they are not universally present; and their presence or absence in any given community does not necessarily coincide with a lower or higher scale of civilization in that community. The temptation to generalize in these matters is natural, but it is dangerous. True as may seem the general proposition, that the higher or lower position of women in any society is a pretty good index to the progress that society has made, there are too many exceptions to the rule for us to take it as a point of departure for inquiry. Nor can these exceptions be always accounted for by any one cause, such as race or religion.
The Earlier Form of Roman Marriage Law
Now let us come to the Romans, of whom we may say that it is they who have built up the marriage law of the civilized world, partly by their action as secular rulers in pagan times, partly by their action as priests in Christian times. The other modifying elements, and particularly the Hebrew and Teutonic influences, which have worked upon the marriage laws of Christendom, are of quite inferior moment.
Roman law begins with two phenomena which seem at first sight inconsistent. One is the complete subjection of the wife to the husband on the legal side, as regards both person and property. The other is her complete equality on the social and moral side, as regards her status and the respect paid to her.
In describing the nature of this subjection, one must make it clearly understood that, strictly speaking, it was not by the mere fact of marriage, that is to say, by the legal act necessary to constitute marriage, that a woman entered that position of absolute absorption into the legal personality of her husband which is so remarkable a feature of the old law. Whatever may have been the case in prehistoric times, we find that at the time when the Twelve Tables were enacted (bc 449) a marriage could be contracted without any forms or ceremonies whatever, by the sole consent of the parties; and that, where this was the case, the husband did not acquire any power over the wife, and the latter retained whatever property she previously possessed. It was therefore not marriage per se that created the power of the husband, for a woman might be legally married and not be under the marital power. But although this ‘free marriage,’ as we may call it (the term is not Roman, but invented by modern jurists), was legally possible, the custom, and in old days the almost invariable custom, of the people was to add to the marriage a ceremony not essential to its validity as a marriage, but one which had important legal consequences. We may safely assume that there was originally no true marriage without the ceremony, but at the time of the Twelve Tables this was no longer the case. The ceremony created a relation which the Romans called Hand (manus), and brought the wife into her husband’s power, putting her, so far as legal rights went, in the position of a daughter (filiae loco). It gave the husband all the property she had when she married. It entitled him to all she might acquire afterwards, whether by gift or by her own labour. It enabled him to command her labour, and even to sell her, though the sale neither extinguished the marriage nor made her a slave, but merely enabled the purchaser to make her work, while still requiring him to respect her personal rights.1 In compensation for these disadvantages the wife became entitled to be supported by her husband, and to receive a share of his property at his death, as one of the ‘family heirs’ (sui heredes), whom he could disinherit only in a formal way. She had by coming under his Hand passed out of her original family, and lost all right by the strict civil law to share in the inheritance of her father.
There were two forms of ceremony by which this power of the Hand could be created. One, probably the older, had a religious character. It took place in the presence of the chief pontiff, and its main feature was a sacrifice to Jupiter, with the eating by the bride and bridegroom of a cake of a particular kind of corn (far), whence it was called confarreatio. It was originally confined to members of the patrician houses. The other was a purely civil act, and consisted in the sale by the bride of herself, with the approval of her father or her guardian (as the case might be), to the bridegroom, apparently accompanied (though there is a controversy on this point) by a contemporaneous sale by the bridegroom of himself to the bride. The transaction was carried out with certain formal words and in the presence of five witnesses (being citizens),1 besides the man who held the scales with which the money constituting the price was supposed to be weighed. The price was of course nominal, though it had in very early times been real.
These two forms have been frequently spoken of as if they were indispensable forms of marriage, so that marriage had always the Hand power as its consequence. But this, though it may probably have been the case in very early days, was not so in those historical times to which I must confine myself. And the proof of this may be found in the fact that if a woman was married without either of the above forms, she did not pass into the Hand of her husband unless or until she had lived with him for a year, and not even then if she had absented herself from his house for three continuous nights during that year.2 And where the Hand power had not been created, the property rights of the wife, whatever they were,3 remained unaffected by the marriage. The period of three nights is fixed in the Twelve Tables, possibly as a precise definition of a custom previously more uncertain.
This was the old Roman system, and a very singular system it was, because it placed side by side the extreme of marital control as the normal state of things and the complete absence of that control as a possible state of things. Doubtless the marriages with Hand were in early days practically universal, resting upon a sentiment and a social usage so strong that women themselves did not desire the free marriage, which would put them in an exceptional position, outside the legal family of the husband. Nor can we doubt that the wide power which the law gave to the husband was in point of fact restrained within narrow limits, not only by affection, but also by the vigilant public opinion of a comparatively small community.
Change from the Earlier to the Later System at Rome
Before the close of the republican period the rite of confarreatio practically died out, or was referred to as an old-world curiosity, much as a modern English lawyer might refer to the power of excommunication possessed by ecclesiastical authorities. The patrician houses had become comparatively few, and the daughters of those that remained evidently did not wish to come under the Hand power.1 The form of coemptio, which all citizens might use, lasted longer, and seems to have been not infrequently applied in Cicero’s time. Two centuries later it also was vanishing, and Gaius tells us that the rule under which uninterrupted residence created the husband’s power of Hand, and might be stopped by the wife’s three nights’ absence, had completely disappeared (Gai Inst. i. 111). So we may say broadly that from the time of Julius Caesar onwards the marriage without Hand had become the rule, while from the time of Hadrian onwards the legal acts that had usually accompanied marriage, which placed the wife under the husband’s control, were almost obsolete.
This was a remarkable change. The Roman wife in the time of the Punic Wars had, with rare exceptions, been absolutely subject to her husband. She passed out of her original family, losing her rights of inheritance in it. Her husband acquired all her property. He could control her actions. He sat as judge over her, if she was accused of any offence, although custom required that a sort of council of his and her relatives should be summoned to advise him and to see fair play. He could put her to death if found guilty. He could (apparently) sell her into a condition practically equivalent to slavery, and could surrender her to a plaintiff who sued him in respect of any civil wrong she had committed, thereby ridding himself of liability. One can hardly imagine a more absolute subjection to one person of another person who was nevertheless not only free but respected and influential, as we know that the wife in old Rome was. It would be difficult to understand how such a system worked did we not know that manners and public opinion restrain the exercise of legal rights.
Such was the old practice. Under the new one, universal in the time of Domitian and Trajan, which is also the time of Tacitus, Juvenal and Martial, the Roman wife was absolutely independent of her husband, just as if she had remained unmarried. He had little or no legal power of constraint over her actions. Her property, that which came to her by gift or bequest as well as that which she earned, remained her own to all intents and for all purposes. She did not enter her husband’s family, and acquired only a very limited right of intestate succession to his property.
This striking contrast may be explained by the fact that the disabilities which attached to the wife under the old system were not in legal strictness the consequence of marriage itself, but of legal acts which an almost universal sentiment and custom had attached to marriage, though in themselves acts distinct from it. A perfectly valid marriage could exist without these legal acts, and so far back as our authorities carry us, we find that a few, though probably originally only a very few, marriages did take place without them. Accordingly when sentiment changed, and custom no longer prescribed the use of confarreation or coemption, the power of Hand vanished of itself and vanished utterly. Had it been an essential part of the marriage ceremony, it would doubtless have been by degrees weakened in force and accommodated to the ideas of a new society. But no legislation was needed to emancipate the wife. The mere omission to apply one or other of the old concomitants gave the marriage relation all the freedom the parties could desire and perhaps more than was expedient for them.
We may now dismiss these ancient forms and address ourselves to the position of the wife under the normal marriage of later times—the so-called ‘free marriage,’ since this is the form in which the Roman institution descended to and has affected modern law.1
Later Marriage Law: Personal Relation of the Consorts
The following points deserve to be noted as characterizing the Roman view.
The act whereby marriage was contracted was a purely private act. No intervention of any State official, no registration or other public record of any sort was required. The two parties, and the two parties only, were deemed to be concerned.2
The act was a purely civil act, to which no religious or ecclesiastical rite was essential either in heathen or in Christian times. There were indeed what may be called decorative ceremonies, some of which we find mentioned in poems like the famous Epithalamium of Catullus, but they had no more to do with the legal nature and effect of the matter than has the throwing of old shoes or rice at a modern English wedding.
The act required no prescribed form. It consisted solely in the reciprocally expressed consent of the parties, which might be given in any words, or be subsequently presumed from facts. ‘Marriage is contracted by consent only’ (nuptiae solo consensu contrahuntur) is the invariable Roman maxim. Even the conducting of the bride to the bridegroom’s house, which has sometimes been represented as necessary,3 seems to have been regarded rather as evidence needed in certain cases than as essential to the validity of the act.1 A generally prevalent usage made a formal betrothal (sponsalia) precede the actual wedding. But the betrothal promise created no legal right. No action lay upon it, such as that which English and Anglo-American law unfortunately allows to be brought for breach of promise of marriage. In early times formal and binding stipulations seem to have been often made on each side between the bridegroom and the father (or other male relative) of the bride for the giving and receiving of the bride; and if the promise were broken without sufficient cause, an action lay against the party in fault for the worth of the marriage.2 This, however, disappeared. Under the influence of a more refined sentiment, not only could no promise of marriage be enforced, but if the parties made a contract whereby each bound him or herself to the other in a penal sum to become payable in case of breach, such a provision was held to be disgraceful (pactum turpe) as well as invalid. This was the law of later republican and imperial times. Betrothal had, however, some legal effects. It entitled either of the betrothed parties to bring an action for an injury (of an insulting nature) offered to the other. It rendered any one infamous who being betrothed to one person contracted betrothal to another. It entitled either party, if the espousal was broken off before marriage, to reclaim whatever gifts he or she might have bestowed upon the other.
As regards personal status, the wife acquired that of her husband (unless either had been formerly a slave), and his domicil became hers. In the old days of Hand power she had taken the name of his gens, but now she retained her own, besides her personal ‘first name’ (praenomen) (e. g. Tertia).1 Each spouse being interested in the character and reputation of the other, he could sue for damages if any insult was offered to her, she for insult to him. He is bound to support her in a manner suitable to their rank, whatever her private means may be. Though each can bring an action against the other, the action must not be one which affects personal credit and honour (actio infamans), and hence, though each has his and her own property, neither can proceed against the other by a civil action of theft, even if the property seized was seized in contemplation of a divorce.2 It need hardly be added that if the wife’s father, or grandfather, were living, she would remain, unless she had been emancipated, subject to the paternal power, being for all legal purposes a member of her original family and not of her husband’s. But the person in whose power she is cannot (at least in imperial days) take her away from her husband. Antoninus Pius forbade a happy marriage to be disturbed by a father; and in the third century (perhaps earlier) the husband could proceed by way of interdict to compel a father to restore his wife to him.3
Later Law. Pecuniary Relations of the Consorts
This curiously detached position of the two consorts expressed itself in their pecuniary relations. Each had complete disposal of his or her property by will as well as during life, though the wife needed, down to a comparatively late time, the authority of her guardian.4 Neither had originally any right of succession to the other in case of intestacy, nor had the wife any right of intestate succession to her children nor they to her, except that which the Praetor gave them among the blood relatives (cognati) generally, after the agnates (persons related through males). A state of things so inconsistent with natural feeling could not however always continue, so the Praetor created a rule of practice whereby each consort had a reciprocal right of succession to the other. But even in doing so, he placed this succession after that of other blood relations, as far as the children of second cousins. This postponement of a consort to blood relatives was carried even further by Justinian’s legislation, for that emperor extended the category of relatives who could succeed in case of intestacy, and made no provision for the wife (beyond that which the Praetor had made), except to some small degree in case of a necessitous widow. The relationship of mother and child received a somewhat fuller recognition, for laws (Senatus Consultum Tertullianum, Sc. Orphitianum) of the time of Hadrian and Marcus Aurelius gave the mother and the children reciprocal rights of inheritance,1 which, finding a place in the general scheme of succession based on consanguinity which Justinian established, have passed into modern law.
Distinct as were the personalities of the two consorts in respect of property, the practical needs of a joint life recommended some plan under which a provision might be made for the expenses of a joint household. This sprang up as soon as marriages without the concomitant creation of the Hand power had grown common. It became usual for the wife to bring with her land or goods, either her own, if she were independent, or bestowed by her father or other relative. This property, which was destined for the support of the married pair and their children, was called the Dos, a term which, since it denotes the wife’s contribution to the matrimonial fund, must not be translated by our English word Dower, for that term describes the right of a wife who survives her husband to have a share in his landed estate. Many rules sprang up regarding the Dos, rules probably due in the first instance to custom, for as the instruments of marriage contracts were usually drawn on pretty uniform lines, these lines ultimately became settled law.1 The general principle came to be that property given from the wife’s side, whether by her father, or by herself, or by some of her relatives, became subject to the husband’s right of user while the marriage lasted, as enabling him to fulfil his obligation to support wife and children, but at the expiry of the marriage by the death (natural or civil) of either party, or by divorce, reverted to the wife or her heirs.2 If, however, the property had been given by the wife’s father, he might, if still living, reclaim it.3 The Dos is said by the Romans to be given for the purpose of supporting the burden of married housekeeping, and therefore the administration and usufruct of it pertain to the husband, while the ultimate ownership remains in the wife, or in the father who constituted it, as the case may be. In the later imperial period a sort of second form of matrimonial property was introduced, called the gift for the sake of marriage (donatio propter nuptias). It was made by the husband, and remained his property both during and after the marriage. So far, as it was only theoretically separated from other parts of the husband’s estate, it might seem to have no importance. But if he became insolvent, it did not, like the rest of his property, pass to his creditors, but went over to the wife, just as the Dos, although administered by the husband, remained unaffected by his insolvency. And just as the husband was entitled, where a divorce was caused by the wife’s fault, to retain a part of the Dos, so if a divorce was caused by the husband’s fault, the donatio propter nuptias, or a part of it, might be claimed by the injured wife. The similarity of some of these arrangements to the practice of English marriage settlements will occur to every one’s mind, though in England settlements are always created and governed by the provisions of the deeds which create them, whereas in Rome, although special provisions were frequently resorted to, there arose a general legal doctrine whose provisions were applicable to gifts made upon or in contemplation of marriage.
One further point needs to be mentioned. It was a very old customary (or, as we should say, common law) rule of Roman law that neither of the wedded pair could during the marriage bestow gifts upon the other, the reason assigned being the risk that one or other might by the exercise of the influence arising from their relation be deprived of his or her property to his or her permanent damage (ne mutuato amore invicem spoliarentur). This principle, which protects the wife from being either wheedled or bullied out of her separate property, and may be compared with the English restraint on alienation or anticipation applied to a wife’s settled property, was also held to be occasionally needed to protect the husband’s interests, and those of the children, from suffering at the hands of a grasping wife. It issues from the view which the Roman jurists enounce that affection must not be abused so as to obtain pecuniary gain: and one jurist adds that if either party were permitted to make gifts the omission to make them might lead to the dissolution of the marriage, and so the continuance of marriages would be purchasable.1 Such gifts were accordingly held null and void, the only exception being that where property actually given had been left in the donee’s hands until the donor’s death, the heir of the donor could not reclaim it from the surviving donee. Needless to say that the rule only covered serious transfers of property, and did not apply to gifts of dress or ornaments or such other tokens of affection as may from time to time pass between happy consorts.
General Character of the Roman Conception of Marriage
Reviewing the rules which regulated marriage without the Hand Power, the sole marriage of the classical times of Roman law, we are struck by three things.
The conception of the marriage relation is an altogether high and worthy one. A great jurist defines it as a partnership in the whole of life, a sharing of rights both sacred and secular.1 The wife is the husband’s equal.2 She has full control of her daily life and her property. She is not shut up, like the Greek wife, especially among the lonians, in a sort of Oriental seclusion, but moves freely about the city, not only mistress of her home, but also claiming and receiving public respect, though so far placed on a different footing from men, and judged by a standard more rigid than ours, that it was deemed unbecoming for her to dance and shocking for her to drink wine.
The marriage relation is deemed to be wholly a matter of private concern with which neither the State nor (in Christian times) the Church has to concern itself. This was so far modified under the Emperors, that the State, from the time of Augustus, began to try to discourage celibacy and childlessness in the interests of the maintenance of an upper class Roman population, as opposed to one recruited from freed men and strangers. But these efforts were not, as we shall see, incompatible with adherence to the general principle that the formation and dissolution of the tie required no State intervention, nor even any form prescribed by State authority.
The marriage relation rests entirely on the free will of the two parties.3 If either having promised to enter it refuses to do so, no liability is incurred. If either desires to quit it, he or she can do so. Within it, each retains his or her absolute freedom of action, absolute disposal of his or her property.
Compulsion in any form or guise is utterly opposed to a connection which springs from free choice and is sustained by affection only.
These principles have a special interest as being the latest word of ancient civilization before Christianity began to influence legislation. They have in them much that is elevated, much that is attractive. They embody the doctrines which, after an interval of many centuries, have again begun to be preached with the fervour of conviction to the modern world, especially in England and the United States, by many zealous friends of progress, and especially by those who think that the greatest step towards progress is to be found in what is called the emancipation of woman.
Divorce in Roman Law
Let us now see how the Roman principles aforesaid worked out in practice as regards domestic morality and the structure of society, that structure depending for its health and its strength upon the purity of home life at least as much as it does upon any other factor.
The last of the above-stated three principles is the derivation of all the attributes of the marriage relation from the uncontrolled free will of the parties. This principle is applied to the continuance of the relation itself. With us moderns the tie is a permanent tie, which, though freely formed, cannot be freely dissolved, whether by one of the parties or by both. Very different was the Roman view. To them it is even less binding than an ordinary business contract. Take for instance a bargain made between A and B for the sale and purchase of a house. Such a bargain creates what the Romans call an obligation, a bond of law (vinculum iuris) which enables either of the contracting parties to require the other to fulfil his promise, or to pay damages in case of default. In Roman law the act of entering into marriage creates no such bond. The business contract can be rescinded only by the consent of both the parties to it. The marriage relation can be terminated by the will of one only. Each party in forming it promised only that he, or she, would remain united to the other so long as he, or she, desired so to remain united. This is the logical consequence of the principle that marriages should be free; this was how the Romans understood that principle.
Accordingly divorce can be effected by either party at his or her pleasure, the doctrine of equality between the sexes being impartially applied, so that the wife may just as freely and easily divorce her husband as the husband may divorce his wife.
The early history of the matter is somewhat obscure, and need not detain us. It would seem probable that in the old days when marriage was accompanied by the Hand power, a husband might put away his wife if she had been convicted before the domestic council of certain grave offences;1 and we gather that in such cases she was entitled to demand her emancipation, i. e. the extinction of the Hand power, by the proper legal method thereto appointed. Such cases were, however, extremely rare. When marriage unaccompanied by Hand power became frequent, we do not at first hear of any divorces. Our authorities declare that the first instance of divorce at Rome (they probably mean the first where no crime was alleged) was furnished by a certain Spurius Carvilius Ruga, who in bc 231 got rid of his wife, although warmly attached to her, on account of her sterility. Universal displeasure fell upon him for his conduct: and when L. Antonius put away his wife without summoning a council of friends and laying the matter before them, the Censors removed him from his tribe. But before long other husbands were found to imitate Spurius Carvilius. In the second century bc divorce was no longer rare. In the days of Julius Caesar it had become common, and continued to be so for many generations. The fragrance of religious sentiment had ceased to hallow marriage, and in the general decline of morals and manners it was one of the first institutions to suffer degradation. Not only Cn. Pompey, but such austere moralists as Cato the younger and the philosophic Cicero put away their wives: Cato his after thirty years of wedded life, Cicero two in rapid succession.
How far this decline had gone, even before the days of Cato and Cicero, appears from the singular speech delivered by Q. Caecilius Metellus, Censor in bc 131, in which he recommended a law for compelling everybody to marry, observing that if it were possible to have no wives at all, everybody would gladly escape that annoyance, but since nature had so ordained that it was not possible to live agreeably with them, nor to live at all without them, regard must be had rather to permanent welfare than to transitory pleasure.1 We are told that both men and women, especially rich women, were constantly changing their consorts, on the most frivolous pretexts, or perhaps not caring to allege any pretext beyond their own caprice. Nothing more than a declaration of the will of the divorcing party was needed: and this was usually given by the husband in the set form of words, ‘keep thy property to thyself’ (tuas res tibi habeto). Little or no social stigma seems to have attached to the divorcing partner, even to the wife, for public opinion, in older days a rigid guardian of hearth and home, had now, in a rich, luxurious, and corrupt society, a society which treated amusement as the main business of life, come to be callously tolerant. There were still pure and happy marriages, like that of Cn. Julius Agricola (the conqueror of Britain) and Flavia Domitilla; nor is it necessary to suppose that conjugal infidelity was the chief cause why unions were so lightly contracted and dissolved, for the mere whims of self-indulgent sybarites account for a great deal.2 Still the main facts—the prevalence of divorce, the absence of social penalties, and the general profligacy of the wealthier classes—admit of no doubt.
The Emperor Augustus, though by no means himself a pattern of morality, was so much alarmed at a laxity of manners which threatened the well-being of the community, as to try to restrict divorces by requiring the party desiring to separate to declare his or her intent in the presence of seven witnesses, being all full Roman citizens. This rule, enacted by the lex Iulia de adulteriis, and continued down till Justinian’s time, does not seem to have reduced the frequency of divorces, though it would tend to render the fact more certain in each case by providing indubitable evidence. Martial and Juvenal present a highly coloured yet perhaps not greatly exaggerated picture of the license of their time; and Seneca truly observes that when vice has become embodied in manners, remedies avail nothing (Desinit esse remedio locus ubi quae fuerant vitia mores sunt).
Influence of Christianity on the Roman Divorce Law
But a force had come into existence which was to prove itself far more powerful than the legislation of Augustus and his successors. The last thing that these monarchs looked for was a reformation emanating from a sect which they were persecuting, and from doctrines which their philosophers regarded with contempt. Christianity from the first recognized the sanctity of marriage, and when it became dominant (though for a long time by no means omnipotent) in the empire a new era began. The heathen emperors might probably have been glad to check the power of capriciously terminating a marriage, but public opinion, which clung to the principle of freedom, would have been too strong for them. All they did was to impose pecuniary penalties on the culpable party by entitling the husband to retain one-sixth of the Dos in case of the wife’s infidelity, one-eighth if her faults had been slighter, to which, if there were children, one-sixth was added in respect of each child, but so as not to exceed one-half in all. (The custody of the children belonged to the father in respect of his paternal power.) If the husband was the guilty party, he was obliged to restore the Dos at once, instead of being allowed a year’s grace.
Constantine and his successors had a somewhat easier task, because the Church had during several generations given to marriage a religious character, surrounded its celebration with many rites, and pronounced her benediction upon those who entered into it. A new sentiment, which looked on it as a union permanent because hallowed was growing up, and must have to some extent affected even heathen society, which remained for a century after Constantine both large and influential. Nevertheless, even the Christian emperors did not venture to forbid divorce. They heightened the pecuniary penalties on the party to blame for a separation by providing that where the misconduct of the wife gave the husband good grounds for divorcing her, she should lose the whole of the Dos, and where it was the husband’s transgressions that justified the wife in leaving him, he should forfeit to her the property he had settled, the donatio propter nuptias. In both these cases the ultimate ownership of these two pieces of marriage property was reserved to the children, if any, the husband or wife, as the case might be, taking the usufruct or life interest. If there was no Dos or Donatio, then the culpable party forfeited to the innocent one a fourth part of his or her private property. The definition of misconduct included a frivolous divorce, so that capricious dissolutions were in this way discouraged.
If there were no fault on either side, but one or other partner desired to put an end to the marriage for the sake of entering a convent, or because the husband had been for five years in foreign captivity,1 or because there had never been any prospect of offspring, such a divorce was allowed, and carried no pecuniary penalty with it. It was called divortium bona gratia.
Finally, if both the parties agreed of their own free wills to separate—the divortium communi consensu—they might do so without assigning any cause or incurring any liability. This rule, which prevailed from first to last, and is recognized even in the Digest and Code of Justinian, was only once broken in upon. In an ordinance issued by Justinian in his later years (Novella Constitutio cxxxiv) the pious austerity of the reformer broke out so vehemently as to enact that where husband and wife agreed to divorce one another without sufficient ground, both should be incapable of remarriage and be immured for life in a convent, two-thirds of their property going to their children. Even then, however, the emperor did not venture to pronounce the divorce legally invalid. The will of the parties prevails, and they die unmarried, though they die in prison. This violation of the established doctrine was, however, too gross to stand. It excited general displeasure, and was repealed by Justin the Second, the nephew and successor of Justinian. So the divorce by consent lasted for some centuries longer, till in an age which had forgotten the ancient Roman ideas and was pervaded by the conception of the marriage relation which religion had instilled, the Emperor Leo the Philosopher declared this form of separation to be invalid.
Through the whole of this legislation on the subject of divorce, which is far more minute and intricate than the briefness of the outline here presented can convey, it is to be noted that the Romans held fast to two principles. One was the wholly private, the other the wholly secular, character of wedlock. There is no legal method prescribed for entering into a marriage, nor any public record kept of marriages. There is no suit for divorce, no public registration of divorce. The State is not invoked in any way. Neither is the Church. Powerful as she had grown before Justinian’s time, even that sovereign does not think of requiring her sanction to the extinction of the marriage which in most cases she had blessed. Either party has an absolute right to shake off the bond which has become a fetter. He or she may suffer pecuniarily by doing so, but the act itself is valid, valid against an innocent no less than against a guilty partner, and valid to the extent of permitting remarriage, except (as observed in the last paragraph) for a few years at the end of Justinian’s reign.
Religion had consecrated the patrician marriage with the sacred cake in early days, and there had been a public character in the so-called plebian marriage with the scales and five witnesses. But the marriage of the Christian Empire was (so far as law went) absolutely secular and absolutely private.
Some other Features of Roman Marriage Law
Before leaving this part of the subject, a few minor curiosities of the Roman marriage law deserve to be mentioned. From the time of Augustus there were in force, during some centuries, various provisions1 designed to promote marriage and the bearing of children by attaching certain burdens or disabilities to the unmarried and childless. Most of these, being opposed to the new sentiment which Christianity fostered, were swept away by the Emperor Constantine and his successors. Others fell into desuetude, so that before Justinian’s time few and slight traces were left of statutes that had exerted a great influence in earlier days, though it may be doubted whether they did much to promote morality. The tendency of Christian teaching rather was in favour of celibacy, when adhered to from ascetic motives; and the passion for a monastic life which marked the end of the fourth century told powerfully in this direction, especially in the eastern half of the empire.
Similar sentiments worked to discourage second marriages, which earlier legislation had favoured, though the widow who remarried within the year of mourning (originally of ten, ultimately of twelve months) suffered infamy, by a very ancient custom, as did the person who wedded her. The marriage was, however, valid. The Christian emperors punished the consort who married again by debarring him or her from the full ownership of any property which came to him or her through the first marriage (lucra nuptialia), while leaving him (or her) the usufruct in it. But this applied only where there were children of the first marriage living, and was mainly prompted by a desire to protect their interests against a step-parent. The ancient world was singularly suspicious of step-mothers.
The rules with regard to prohibited degrees of matrimony varied widely from age to age. In early Rome even second cousins were forbidden to intermarry. There was in those days a usage permitting near relatives, as far as second cousins, to kiss one another without incurring censure (ius osculi). Plutarch oddly explains the permission as grounded upon the right of the male relatives to satisfy themselves in this way that the ladies of the family had not tasted wine. But obviously the wholesome habits of a simple society allowed a familiar intercourse among kinsfolk just as far, and no farther, as the prohibition of marriage between them extended.1 Towards the end of the republican period, however, we find that even first cousins might marry, probably by custom, for we hear of no specific enactments. Tacitus (Ann. xii. 6) refers to the practice as well established. This freedom lasted till the Emperor Theodosius the First, who forbade their marriage under pain of death by burning. Though the penalty was subsequently reduced, marriages of first cousins continued to be forbidden and punishable in the western half of the empire, while in the eastern they were made permissible, and remained so in the system of Justinian. The marriage of uncle or aunt with niece or nephew had been prohibited, though apparently by no statute, until the Emperor Claudius, desiring to marry his brother’s daughter Agrippina, obtained a decree of the Senate declaring such a marriage legal.2 So it remained for a time, though the marriage of an uncle with a sister’s daughter, or of an aunt with a nephew, was still deemed incestuous. Christianity brought a change, and the law of Claudius was annulled by the sons of the Emperor Constantine. It was also by these sovereigns that marriage with a deceased wife’s sister, or a deceased husband’s brother, which had previously been lawful, though apparently regarded with social disapproval, was expressly forbidden.1 This rule was adopted by Justinian, in whose Codex it finds a place.2
Besides the full lawful marriage of Roman citizens, to which alone the previous remarks have referred, there were two other recognized relations of the sexes under the Roman law.3 One of these was the marriage of a citizen, whether male or female, with a non-citizen, i. e. a person who did not enjoy that part of citizenship which covered family rights and was called connubium. This was called a natural marriage (matrimonium naturale, matrimonium iuris gentium) as existing under the Law of Nature or Law of the Nations (ius gentium), as contradistinguished from the peculiar law of Rome (ius civile).4 It was a perfectly legal union, and the children were legitimate: as of course were the children of two non-citizens who married according to their own law. When Roman citizenship became extended to all the subjects of the empire, the importance of this kind of marriage vanished, for it could thereafter have been applicable (with some few exceptions) only to persons outside the Empire, and marriages with such persons, who were prima facie enemies, were forbidden.
The other relation was that called concubinage (concubinatus). It was something to which we have no precise analogue in modern law, for, so far from being prohibited by the law, it was regulated thereby, being treated as a lawful connexion. It is almost a sort of unequal marriage (and is practically so described by some of the jurists) existing between persons of different station—the man of superior rank, the woman of a rank so much inferior that it is not to be presumed that his union with her was intended to be a marriage. It leaves the woman in the same station in which it found her, not raising her, as marriage normally does, to the husband’s level. The children born in such a union are not legitimate; but they may require their father to support them, and are even allowed by Justinian, in one of his later enactments (Novella lxxxix), a qualified right of intestate succession to him. They of course follow their mother’s condition, and they have a right of inheriting her property. Even here the monogamic principle holds good. A man who is married cannot have a concubine, nor can any man have more than one concubine at a time. Though regarded with less indulgence by the Christian emperors than it had been by their predecessors, it held its ground in the Eastern Empire, even under Justinian, who calls it a ‘permitted connexion’ (licita consuetudo), and was not abolished till long after his time by the Emperor Leo the Philosopher in ad 887. In the West it became by degrees discredited, yet doubtless had some influence on the practice of the clergy, the less strict of whom continued to maintain irregular matrimonial relations for a great while after celibacy had begun to be enforced by ecclesiastical authority.
Children born in concubinage may be legitimated by the subsequent marriage of their parents, according to a rule first introduced by Constantine, and subsequently enlarged and made permanent by Justinian (Cod. v. 27, 5 and 6; Nov. xii. 4; Nov. lxxxix. 8); a rule of great importance, which was long afterwards introduced into the Canon Law by Pope Alexander III in ad 1160, and has held its ground in the modern Roman law of continental Europe, as it does in the law of Scotland to this day. The bishops, prompted by the canonists, tried to introduce it in England, but were defeated by the opposition of the barons, who at the great council held at Merton in 20 Henry III (ad 1235-6) refused their consent in the famous words, ‘We will not change the laws of England which hitherto have been used and approved.’1 Nevertheless such power of legitimating the children of a couple born before their legal marriage seems to have been part of the ancient customs of England before the Conquest. The children were at the wedding placed under a cloak which was spread over the parents, and were from this called in Germany, France, and Normandy, ‘mantle children.’2
I have already dwelt upon the most striking feature of the branch of legal history we have been tracing, the comparatively sudden passage from a system of extreme strictness—under which the wife’s personality, with her whole right of property, became absolutely merged in that of her husband—to a system in which the two personalities remained quite distinct, united only by the rights which each had in matrimonial property, rights which were however not rights of joint-management, but exercisable (subject to limitations) by the husband alone so long as the marriage lasted, while the reversion was secured to the wife or her relatives. It is hardly less noteworthy that these two contrasted systems did for a considerable time exist side by side; and for a century, or perhaps more, must both have been in full vigour, though the freer system was obviously gaining ground upon the older and more stringent one.
Another fact, though more easily explicable, is also worth noting. In its earlier stages the Roman marriage bore a religious character, for we can hardly doubt that in primitive times Confarreation, the old patrician form with the sacrifice and the holy cake, was practically universal among the original citizens, before the plebs came into a separate and legally recognized existence. Hence perhaps it is that marriage is described, even when that description had ceased to have the old meaning, as a ‘sharing of all rights, both religious and secular.’ In its middle period, which covers some five centuries, it was a purely civil relation, not affected, in its legal aspects, by any rules attributable to a theological or superstitious source. But when Christianity became the dominant faith of the Empire, the view which the Gospel and the usages as well as the teaching of the Church had instilled began thenceforward to influence legislation. These usages did not indeed, down till the eighth century, transform the fundamental conception of marriage as a tie formed solely by consent, and needing the intervention neither of State nor of Church. But they worked themselves into the doctrines of the Church in such wise that, in later days, they succeeded in making matrimony so far a sacred relation as to give it an indissoluble character, and not only restricted the circle of persons between whom it could lawfully be contracted, but abolished the power of terminating it by the mere will of the parties.
Marriage under the Canon Law
When direct legislation by the State came to an end in Western Europe with the disappearance of the effective power of the Emperors in the fifth and sixth centuries, the control of marriage began to fall into the hands of the Church and remained there for many generations. To pass from the civil law of Rome to the ecclesiastical law of the Dark and Middle Ages is like quitting an open country, intersected by good roads, for a tract of mountain and forest where rough and tortuous paths furnish the only means of transit. It would be impossible within the limits of this Essay to describe that law, which is copious, and embarrassed by not a few controverted points. All that it seems necessary to say here is that the Canon Law, which was collected and codified in the thirteenth and fourteenth centuries, so far adhered to the established Roman doctrine as to recognize, down till the Council of Trent, the main principle that marriage requires nothing more than the free consent of the parties, expressed in any way sufficient to show that the union which they contemplate is to be a permanent and lawful union. Marriage no doubt became, in the view of the mediaeval Church, as of the Roman Church to-day, a sacrament, but it is a sacrament which the parties can enter into without the aid of a priest. Their consent ought, no doubt, in the view of the Church and of Canon law, to be declared before the priest and to receive his benediction. It is only marriages ‘in the face of the Church’ that are deemed ‘regular’ marriages,1 and the Fourth Lateran Council under Innocent the Third directed the publication of banns. But the irregular marriage is nevertheless perfectly valid. It is indissoluble (subject as hereinafter mentioned), and the children born in it are legitimate. A good ground for this indulgence may be found not only in Roman traditions, but also in the fact that the Church was anxious to keep people out of sin and to make children legitimate, so that it always presumed everything it could in favour of lawful matrimony.
This view prevailed, and may be said to have been the common law of Christendom, as it had been of the old Roman Empire, down till the Council of Trent.2 That assembly, against the strong protests of some of its members, passed a decree (Sessio XXIV, cap. i, De Reformatione Matrimonii) which, after reciting that clandestine marriages had been held valid, though blameworthy, declared that for the future all should be deemed invalid unless they took place in the presence of a priest and of two or three witnesses. Apparently it was not so much for the sake of securing the blessing of the Church upon every marriage as in order to prevent scandals which had arisen from the breach of a tie contracted in secret that the change, a grave and memorable change, was made. This great Council, which was intended to secure the union of Christendom under the See of Rome, really contributed to intensify the separatist forces then at work: and from it onwards one can no longer speak of a general marriage law even for Western Europe. Custom and legislation took thenceforward different courses, not only as between Protestant and Roman Catholic nations, but even as between different Protestant nations, there being no common ecclesiastical authority which Protestant States recognized. Thus the era of the Reformation is an era as marked in the history of marriage law as was the era of Constantine, when Christianity began to be dominant in the Roman Empire. And we shall see, when we return to the subject of divorce, that this is even more strikingly the case as regards the dissolubility of marriage than as regards the mode of contracting it.
Before passing on to sketch the legal history of the institution in England—since it is impossible to find space here for an account of its treatment in the laws of other European States—it is well to note what had been the general tendency of the customary law of the Middle Ages upon the character of the marriage relation.
One may sum up that tendency by saying that it had virtually expunged the free and simple marriage of the Romans under the later Republic and the Empire, and had substituted for it a system more closely resembling that of the religious marriage with Hand power of early Rome. The ceremony had practically become a religious one, though till the Council of Trent a religious service was not absolutely essential to its validity. The relation had become indissoluble, except by the decree of the Pope, who in this, as in some other respects, practically filled the place of the old Roman Pontifex, though of course both confarreation and the pontiff had been long forgotten.1 It carried with it an absorption of the personality of the English wife into that of the husband, whereby all her property passed to him and she became subject to his authority and control. These conditions were the result partly of Teutonic custom, partly of the rudeness of life and manners; and such check as was imposed on them came from the traditions of the Roman law, and from the favour which the Canon law, much to its credit, showed to the wife. Of this favour some have found a trace in the phrase that occurs in the ‘Form for the Solemnization of Matrimony’ in the liturgy of the Church of England, where the bridegroom is required to say to the bride, ‘with all my worldly goods I thee endow’; although, in point of fact, the law of England gives to the bride only a very limited (and now easily avoidable) right to one-third of the husband’s real estate after his death.1
The English Law of Marriage
The influence of the Roman system was, of course, less in England than in countries where, as in France and Italy, the Roman law had maintained itself in force, either as written law or as the basis of customary law. But now that we come to consider the course which the English law of marriage has taken, let us note that this law has flowed in two distinct channels down till our own time. So much of it as pertained to the marriage relation itself, that is to say, to the capacity for contracting marriage (including prohibited degrees), to the mode of contracting it, and to its dissolution, complete or partial, belonged to the canon or ecclesiastical law and was administered in the spiritual courts. So much of it as affected the property rights of the two parties (and especially rights to land) belonged to the common law and was administered in the temporal courts. This division, to which there is nothing parallel in the classical Roman law, was of course due to the fact that mediaeval Christianity, regarding marriage as a sacrament, placed it under the control of the Church and her tribunals in those aspects which were deemed to affect the spiritual well-being of the parties to it. Nevertheless the line of demarcation between the two sides was not always, and indeed could hardly be, sharply or consistently drawn. The ecclesiastical courts had a certain jurisdiction as regards property. The civil courts were obliged, for the purposes of determining the right of a woman to dower and the rights of intestate succession, to decide whether or no a proper and valid marriage had been contracted. Their regular course apparently was to send the matter to the bishop’s court, and act upon the judgment which it pronounced. But this was not always done. They often had to settle the question for themselves, applying, no doubt, as a rule the principles which the bishop’s court would have followed, and (as has been explained by the latest and best of our English legal historians1 ) they often evaded the question of whether there had been a canonically valid marriage by finding that, as a matter of fact, the parties had been generally taken to have been duly wedded, and by proceeding to give effect to this finding.
The ecclesiastical lawyers were not successful in their treatment of such questions as fell within their sphere. The effort to base legal rules on moral and religious principles leads naturally to casuistry, and away from that commonsense view of human transactions and recognition of practical convenience which ought to be the basis of law. They multiplied canonical disabilities arising whether from pre-contract, a matter to which they gave a far greater importance than had previously belonged to it, or from relationship, either of consanguinity or of affinity; and they indeed multiplied these impediments to such an extent as to make the capacity of any two parties to enter into matrimony matter of doubt and uncertainty, giving wide opportunities for chicane, and an almost boundless scope for the interposition of the Roman Curia, whose sale of dispensations became a fertile and discreditable source of revenue. Their treatment of divorce will be presently examined. In their zeal to keep Christian people out of sin they recognized many clandestine unions as valid, though irregular, marriages, while at the same time applying strict rules of evidence which practically withdrew much of the liberty that had been granted by the lax theory of what constituted a marriage. These tangled subtleties regarding pre-contracts and prohibited degrees were at the time of the Reformation swept away by a statute of 1540 (32 Henry VIII, c. 38), which declared that all marriages should be lawful which were ‘not prohibited by Goddis lawe,’ and that ‘no reservation or prohibition, Goddis lawe except, shall trouble or impeche any marriage without the Levitical degrees.’
Two principles, however, remained unaffected by the legislation of this period in England. The one was the indissolubility of marriage, a topic to which I shall presently return. The other was the freedom of entering into it, consent, and consent alone, being still all that was necessary to make a marriage valid.1 England, of course, did not recognize the decrees of Trent, so the old law continued in force after that Council, though motives like those which had guided the Council induced the ecclesiastical courts to lean strongly in favour of the almost universal practice of marrying before a clergyman, and to require in all other cases very strict evidence that a true consent, directed to the creation of lawful matrimony, had in fact been given. Moreover, where the marriage had been irregular, the spiritual courts might compel its celebration in the face of the Church. So things went on, with much uncertainty and some confusion between the act needed to constitute marriage and the evidence of that act, till the middle of the eighteenth century, when a statute was passed in ad 1753 (26 Geo. II, c. 33) which required all marriages to be celebrated by a clergyman and in a church (unless by dispensation from the Archbishop of Canterbury), and prescribed other formalities.2 These provisions remained in force (except as to Jews and Quakers) until 1836, when a purely civil marriage before a Registrar was permitted as an alternative to the ecclesiastical ceremony.1 During the Commonwealth marriages had been contracted before justices of the peace, but the Restoration legislation, while validating the marriages so formed, abolished the practice. The old law remained in Ireland, and that was how the question what kind of marriage ceremony was required by the common law came before the House of Lords in the famous case of Reg. v. Millis, which was an Irish appeal, and the decision in which, declaring that by the common law the presence of a clergyman was required to make a marriage valid, seems to have been erroneous.
Property Relations of the Consorts under English Law
Now let us turn to the effect of marriage in the law of England upon the property and the personal rights of the wife.
That effect has generally been described as making the two consorts one person in the law. Such they certainly were for some purposes under the older Common Law of England. The husband has the sole management of all the property which the wife had when married, or which she subsequently received or earned by her exertions. In acquiring all her property he becomes also liable for the debts which she owed before marriage, but after marriage he has not to answer for any contract of hers, because her agreements do not bind him except for necessaries. He is, moreover, liable for wrongs done by her. He cannot grant anything to her, or covenant with her; and if there was any contract between him and her before marriage, it disappears by her absorption into his personality. She can bring no action without joining him as plaintiff, nor can she be sued without joining him as defendant. She cannot give evidence for or against him (save where the offence is against herself); and if she commit a crime (other than treason or murder) along with him, she goes unpunished (though for crimes committed apart from him she may be prosecuted), on the hypothesis that she did it under his compulsion. So in a case, in the thirteenth century, where husband and wife had produced a forged charter, the husband was hanged and the wife went free, ‘because she was under the rod of her husband’ (quia fuit sub virga viri sui1 ).
But this theory of unity is not so consistently maintained as was the similar theory of the Romans regarding the marriage with Hand power. For the wife’s consent to legal acts may be effectively given where she has been separately examined by the Court to ascertain that her consent is free; and even the fact that she must be joined in legal proceedings taken by or against her shows that she has a personality of her own, whereas under the Roman manus she was wholly sunk in that of her husband. Thus it is better not to attempt to explain the wife’s position as the result of any one principle, but rather to regard it as a compromise between the three notions of absorption, of a sort of guardianship, and of a kind of partnership of property in which the husband’s voice normally prevails.
As respects her personal safety, she was better off than the Roman wife of early days, for the husband could punish the latter apparently even with death, after holding a domestic council, whereas the English husband could do no more than administer chastisement, and that only to a moderate extent. The marital right of chastisement seems to have been an incident to marriage in many rude societies. A traveller among the native tribes of Siberia relates that he found a leather whip usually hung to the head of the conjugal bed, almost as a sort of sacred symbol of matrimony; and he was told that the wife complained if her husband did not from time to time use the implement, regarding his neglect to do so as a sign of declining affection. And it would seem that this notion remains among the peasantry of European Russia to this day.1
Everybody has heard of the odd habit of selling a wife which still occasionally recurs among the humbler classes in England; and most people suppose that it descends from a time when the Teutonic husband could sell his consort, as a Roman one apparently could in the days of Hand power. There is, however, no trace at all in our law of any such right,2 though a case is reported to have arisen in ad 1302, when a husband granted his wife by deed to another man, with whom she thereafter lived in adultery.3
The compensation given to the English wife for the loss (or suspension during the marriage) of her control over her property is to be found in her right of Dower, that is, of taking on her husband’s death one-third of such lands as he was seised of, not merely at his death, but at any time during the marriage, and which any issue of the marriage might have inherited. As this right interfered with the husband’s power of freely disposing of his own land, the lawyers set about to find means of evading it, and found these partly in legal processes by which the wife, her consent being ascertained by the courts, parted with her right, partly by an ingenious device whereby lands could be conveyed to a husband without the right of dower attaching to them, partly by giving the wife a so-called jointure which barred her claim. The wife has also a right, which of course the husband can by will exclude, of succeeding in case of intestacy to one-third of his personal property, or, if he leave no issue, to one-half.
This state of things hardly justifies the sleek optimism of Blackstone, who closes his account of the wife’s position by observing, ‘even the disabilities which the wife lies under are, for the most part, intended for her protection and benefit. So great a favourite is the female sex of the laws of England.’ The Romans, although they allowed to women a fuller independence, were more candid when they said: ‘In many points of our law the condition of the female sex is worse than that of the male.’
Gradual Amendment of the English Matrimonial Law
However, the Courts of Equity ultimately set themselves in England to improve the wife’s condition. They recognized some contracts and grants between husband and wife. They allowed property to be given to trustees for the sole and separate use of a wife; and if it was given to her with an obvious intent that it should be for her exclusive benefit, they held the husband, in whom by operation of the general law it would vest, to be a trustee for the wife. When during marriage there came to a wife by will or descent any property of which the husband could obtain possession only by the help of a Court of Equity, they required him to settle a reasonable part of it upon the wife for her separate use. And in respect of her separate property, they furthermore permitted the wife to sue her husband, or to be sued by him. While these changes were in progress, there had grown up among the wealthier classes the habit of making settlements on marriage which secured to the wife, through the instrumentality of trustees, separate property for her sole use, and wherever a woman was a ward of Court, the Court insisted, in giving its consent to the marriage, that such a settlement should be made for her benefit.
By these steps a change had been effected in the legal position of women as regards property similar to, though far more gradual, and in its results falling far short of, the change made at Rome when the marriage without Hand power became general. But in England a recourse to the Courts has always been the luxury of the rich; and as the middle and poorer classes were not wont to go to the Courts, or to make settlements, it was only among the richer classes that the wife’s separate estate can be said to have existed. At last, however, the gross injustice of allowing a selfish or wasteful husband to seize his wife’s earnings and neglect her was so far felt that several Acts were passed (the first in 1857), under which a woman deserted by her husband may obtain from a magistrate a judicial order, protecting from him any property she may acquire after desertion. By this time an agitation had begun to secure wider rights for married women. It had great difficulties to overcome in the conservative sentiment of lawyers, and of those who are led by lawyers, and more especially of members of the House of Lords. Not till 1870 did the British Parliament take the step which the Romans had taken long before the Christian era, and which many American States had taken in the first half of the nineteenth century. A statute of that year, amended and extended by others of 1874 and 1882, swept away the old rule which carried all the wife’s property over to the husband by the mere fact of marriage; so that now whatever a woman possesses at her marriage, or receives after it, or earns for herself, remains her own as if she were unmarried, while of course the husband no longer becomes liable by marriage to her ante-nuptial debts. By these slow degrees has the English wife risen at last to the level of the Roman. The practice of making settlements on marriage still remains, especially where the wife’s property is large, or where there is any reason to distrust the bridegroom; for though the interposition of trustees is no longer needed to keep the property from falling by operation of law into the husband’s grasp, he may still press or persuade her to part with it, since she now enjoys full disposing power, and if she does part with it, she and the children may suffer. Thus custom sustains in England, and perhaps will long sustain, a system resembling that of the Roman Dos. Yet the number of persons possessing some property who marry without a settlement increases, as does the number of women whose strength of will and knowledge of business enables them to hold their own against marital coaxing or coercion.
It need hardly be said that the personal liberty of the wife was established long before her right to separate property. Says Blackstone (writing in 1763):—
‘The husband by the old law might give his wife moderate correction. For as he is to answer for her misbehaviour, the law thought it reasonable to entrust him with his power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children, for whom the parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds, and the husband was prohibited from using any violence to his wife aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet. But in the politer reign of Charles the Second this power of correction began to be doubted, and a wife may now have security of the peace against her husband, or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege; and the Courts of Law will still permit a husband to restrain a wife of her liberty in case of any gross misbehaviour.’1
This touching attachment to their old common law still survives among ‘the lower rank of people’ in the form of wife beating. But among the politer classes the right to restrain a consort’s liberty (except under very special circumstances) may be deemed to have become exploded since the case of Reg. v. Jackson in 1891.2 So that now the English wife, like the Roman, may quit her husband’s house when she pleases, and the suit for restitution of conjugal rights, whereby either could compel the other to live in the common household, is falling into disuse, if indeed it can still be described as in any sense effective since the Act, passed in 1884, which took away the remedy by attachment.
The interest which belongs to these changes in the law, changes generally similar in their result in the English and in the Roman systems, though far more gradually made in the former than in the latter, is the interest of observing the methods whereby custom and legislation have sought to work out different possible theories of the marriage relation. There are usually said to be two theories, that of Mastery, and that of Equality. On the former the husband is lord of the wife’s property as well as of her person. The law puts her at his mercy, trusting that affection, public opinion, and a regard for domestic comfort will restrain the exercise of his rights. On the other theory, each consort is a law to him- or herself, each can dispose of his or her property, time, and local presence without the assent of the other. The law allows this freedom in the hope that affection, respect, and the opinion of society will prevent its abuse. Yet these two theories, that with which both Rome and England began, that with which both Rome and England have ended, do not exhaust the possibilities of the relation. For there is a third theory which, more or less consciously felt to be present, has influenced both the one and the other, creating a sort of compromise between them. It is the theory of a partnership in social life and in property similar to the partnership which necessarily exists as regards the children of a marriage. This idea is expressed by the form which the Mastery theory took when it declared husband and wife to be ‘one person in the law,’ and in the Anglican marriage service where the wife’s promise to obey1 is met by the husband’s declaration that he endows her with all his worldly goods. It also qualifies the theory of Equality and Independence by the practice of creating a settlement in England, and a Dos (and Donatio propter nuptias) at Rome, in which each of the married pair has an interest.
Any one can see that the Mastery theory, against which modern sentiment revolts, was more defensible in a time of violence, when protection for life and property had to be secured by physical force as well as by recourse to the law, than it is to-day. Any one can also see that there are even to-day households for which the Mastery theory may be well suited, as there also are, and always have been, even in days of rudeness and in Musulman countries, other households where the wife was, and rightly was, the real head of the family. Those moreover who, judging of other times by their own, think that the position of the wife and of women generally must have been, under the Mastery theory, an intolerable one, need to be reminded not only that the practical working of family life depends very largely on the respective characters of the persons within the family, and on the amount of affection they entertain for one another, but also that it is profoundly modified by the conception of their relations which rules the minds of these persons. Law, itself the product and the index of public opinion, moulds and solidifies that conception, and the wife of the old stern days of marital tyranny saw no indignity or hardship in that position of humble obedience which the independent spirit of our own time resents.
Divorce under the Canon Law
There is one more point in which opposite theories of marriage have to be contrasted, and in which the contrast appears most strikingly. This is the point which touches the permanence of the relation.
We have already seen what were the provisions of the Roman law upon the subject of Divorce. Those provisions continued to prevail in Western Europe after the fall of the Empire, until, apparently in the eighth, ninth, and tenth centuries, new rules enforced by the Church superseded them in the regions where the imperial law had been observed. A similar change occurred later in other countries such as England and Germany, where the ancient customs of the barbarian tribes had allowed the husband, and apparently in some cases the wife also, to dissolve the marriage and depart. From the twelfth century onwards the ecclesiastical rules and courts had undoubted control of this branch of law all over Christian Europe. Now the Church held marriage to be a sacrament and to be indissoluble. Divorce, therefore, in the proper sense of the term, as a complete severance of a duly constituted matrimonial tie, was held by the Church inadmissible. This view was based on the teaching of our Lord as given in the Gospels,1 and was enforced on every bridal pair in the liturgical form employed at marriage, as indeed it is in the English liturgy to-day. Nevertheless, the Church recognized two legal processes which were popularly, though incorrectly, called divorces.
One of these, called the divorce from the bond of marriage (a vinculo matrimonii), was in reality a declaration by ecclesiastical authority—that of the Pope, or a deputy acting under him—that the marriage had been null from the beginning on the ground of some canonical impediment, such as relationship or pre-contract. As already observed, the rules regarding impediments were so numerous and so intricate that it was easy, given a sufficient motive, whether political or pecuniary, to discover some ground for declaring almost any marriage invalid. The practice of granting divorces of this class, which was constantly made a means of obliging the great ones of the earth and augmenting papal revenues, may sometimes have been really useful for the purpose of dissolving the ill-assorted unions of those who could secure a decree from the ecclesiastical authorities. Technically, however, it was not a dissolution of marriage, but a declaration that no marriage had ever existed, and therefore it rendered children born in the relation illegitimate.2
The other kind of divorce was that called ‘from board and bed’ (a mensa et thoro). It was a regular part of the jurisdiction of the Church Courts, and effected a legal separation of the two parties from their joint life in one household, while leaving them still man and wife, and therefore unable to marry any other person. The status of the children was of course not affected.
The Later Law of Divorce in England and Scotland
This law prevailed over all Europe till the Reformation, and continued to prevail in all Roman Catholic countries till a very recent time. In some it still prevails, at least so far as Roman Catholics are concerned. But in most Protestant countries it received a fatal shock from the denial, in which all Protestants agreed, of the sacramental character of marriage, and from the revival, in some of such countries, of the view of marriage as a purely civil contract. Thus in Scotland the courts began, very soon after the Roman connexion had been repudiated, to grant divorces; and in ad 1573 a statute added desertion to adultery as a ground for divorce. In England, however, where the revulsion against the doctrines of mediaeval Christianity was less pronounced, and where the Ecclesiastical Courts retained their jurisdiction in matrimonial causes, the old law went on unchanged, save that after the abolition of many of the canonical impediments, mentioned above, divorces a vinculo, declaring marriages to have been originally invalid, became far more rare. Nevertheless, attempts had been made by some of the more energetic English Reformers to assert the dissolubility of marriage. A draft ecclesiastical code (called the Reformatio legum ecclesiasticarum) was prepared, but never enacted; and Milton argued strongly on the same side in his well-known but little read book. About his time cases begin to occur in which marriages were dissolved by Acts of Parliament; a practice which became more frequent under the Whig régime of the early Hanoverian kings, and ultimately ripened into a regular procedure by which those who could afford the expense might secure divorces. The party seeking divorce was required to first obtain from the Ecclesiastical Court a divorce a mensa et thoro, which obtained, he introduced his private Bill for a complete divorce. It was heard by the House of Lords as a practically judicial matter, in which evidence was given, and counsel argued the case for and (if the other party resisted) against the divorce. It was usually by the husband that these divorce Bills were promoted, and indeed no wife so obtained a divorce till ad 1801.1
This characteristically English evasion of that principle of indissolubility for which such immense respect was professed lasted till 1857, long before which time the existence of a law which gave to the rich what it refused to the poor had become a scandal.1 In that year an Act was passed, not without strenuous opposition from those who clung to the older ecclesiastical theory, which established a new Court for Divorce and Matrimonial causes, empowered to grant either a complete dissolution of marriage (divorce a vinculo matrimonii) or a ‘judicial separation’ (divorce a mensa et thoro). This statute adhered to the rule which the practice of the House of Lords had established, and under it a husband may obtain a divorce on proof of the wife’s infidelity, whereas the wife can obtain it only by proving, in addition to the fact of infidelity on the husband’s part, either that it was aggravated by bigamy or incest, or that it was accompanied by cruelty or by two years’ desertion. To prevent collusion a public functionary called the Queen’s Proctor is permitted to intervene where he sees grounds for doing so. Misconduct by the husband operates as a bar to his obtaining a divorce. Thus the law of England stands to-day. Attempts have been made to alter it on the basis of equality, so that whatever misconduct on the wife’s part entitles a husband to divorce shall, if committed by the husband, entitle her likewise to have the marriage dissolved. But these attempts have not so far succeeded.2
The law of Scotland is more indulgent, and not only permits a wife to obtain divorce for a husband’s infidelity alone, but also recognizes wilful desertion for four years as a ground for divorce. In other respects its provisions are generally similar to those of the English law. Ireland, however, remains under the old pre-Reformation system. There is no Divorce Court, and no marriage can be dissolved save by Act of Parliament. The bulk of the people are Roman Catholics, and among Protestants as well as Roman Catholics the level of public sentiment and of conjugal morality has apparently been higher than in England, nor have attempts been made, at any rate in recent years, to obtain the freedom which England and Scotland possess. The United Kingdom thus shows within its narrow limits the curious phenomenon of three dissimilar systems of law regulating a matter on which it is eminently desirable that the law should be uniform. England has a comparatively strict rule, and one which is unequal as between the two parties. Scotland is somewhat laxer, but treats both parties alike. Ireland has no divorce at all. So little do theoretical considerations prevail against the attachment of a nation to its own sentiments and usages.
I reserve comments on these systems till we have followed out the history of the English matrimonial law in the widest and most remarkable field of its development, the United States of America.
The Divorce Laws of the United States
When the thirteen Colonies proclaimed their separation from Great Britain in 1776, they started with the Common Law and all such statute law as had in fact been in force at the date of the separation. Accordingly they had no provision for dissolving marriages, nor any Ecclesiastical Courts to grant dissolutions, seeing that such tribunals had never existed in America, where there had been no bishops. Presently, however, they began to legislate on the subject, and the legislation which they, and the newer States added to the Union since 1789, have produced presents the largest and the strangest, and perhaps the saddest, body of legislative experiments in the sphere of family law which free, self-governing communities have ever tried. Both marriage and divorce belong, under the American Constitution, to the several States, Congress having no right to pass any laws upon the subject, except of course for the District of Columbia and the Territories. Thus every one of the (now) forty-five States has been free to deal with this incomparably difficult and delicate matter at its own sweet will, and the variety of provisions is endless. As it would require a great deal of space to present these in detail, I shall touch on only some salient points.
Originally, the few divorces that were granted were obtained, following the example of England, by means of Acts of the State legislature. The evils of this plan were perceived, and now nearly all the States have by their Constitutions forbidden the legislature to pass such Acts, since Courts have been provided to which application may be made. These are usually either the ordinary inferior Courts of the State, or the Chancery Courts (where such survive). No State seems to have, like England, erected a special Court for the purpose. One State only, South Carolina, does not recognize divorce at all. In 1872, under the so-called ‘carpet-bagger government,’ set up after the War of Secession, a statute was passed in that State authorizing divorces for infidelity or desertion, but in 1878, when the native whites had regained control, this statute was repealed, so that now, if a divorce is obtained at all, it must be obtained from the legislature outside the regular law. South Carolina has the distinction of being to-day probably the only Protestant community in the world which continues to hold marriage indissoluble. No State has fewer Roman Catholic citizens: Presbyterians and Methodists are the strongest religious bodies.
The causes for which divorce may be granted range downwards from the strictness of such a conservative State as New York, where conjugal infidelity is the sole cause recognized for an absolute dissolution of the marriage, to the laxity of Washington, where the Court may grant divorce ‘for any cause deemed by it sufficient, and when it shall be satisfied that the parties can no longer live together.’ Desertion is in nearly all States recognized as a ground for dissolution. So is cruelty by either party, or the reasonable apprehension of it by either. So in many States the neglect of the husband to provide for the wife, habitual intemperance, indignities or insulting treatment, violent temper, and (in a smaller number) the persistent neglect of her domestic duties by the wife, grave misconduct before marriage unknown to the other party, insanity, an indictment for felony followed by flight, vagrancy, are, or have been, prescribed as among the sufficient grounds for divorce. In some States a sentence of imprisonment for life ipso iure annuls the marriage of the prisoner, permitting the other partner to remarry, and, in most, conviction for felony or infamous crime is a ground on which the Court may decree, and presumably will decree, the extinction of the marriage. Moreover, there are still a few States where over and above the judicial process open to a discontented consort, the State legislature continues to grant divorces by special statutes. Delaware is, or very recently was, such a State; and in the twenty years preceding 1887 it would seem that four-fifths of its divorces, not indeed very numerous (289 for twenty years), were so obtained. The laws of most States also provide for what the Americans call a ‘limited divorce,’ and the English a ‘judicial separation,’ equivalent to the old divorce a mensa et thoro. It leaves the marriage still valid, but relieves the parties from any obligation to live together; and in some States the Court in pronouncing a decree of divorce may change the name of the wife (in Texas and Arizona the name of either party), while in Vermont it may also change the names of the children who are minors.
Not less remarkable than the multiplication of grounds for divorce in the American States is the extreme laxity of procedure which has grown up. The Courts having jurisdiction are usually the Courts of the county, tribunals of no great weight, whose ill-paid judges are seldom men of professional eminence. The terms of residence within a State which are required before a petitioner can apply for a divorce are generally very short. The provisions for serving notice on the respondent or defendant to the divorce suit are loose and seem to be carelessly enforced. Some States allow service to be effected by publication in the newspapers, if the other party be not found within the State, and this of course often happens when the applicant has recently come to the State, most likely a distant one, from that in which he or she lived with the other consort. Frequently he comes for the express purpose of getting his marriage dissolved. Although most States declare collusion or connivance by the other party to be a bar to the granting of a divorce, and some few States provide that a public official shall appear to defend in undefended petitions, the provisions made for detecting these devices are inadequate; and in not a few cases the proceedings do little more than set a judicial seal upon that voluntary dissolution by the agreement of the two consorts, which was so common at Rome. It is doubtless a point of difference between the Roman law and that of modern American States that in the former the parties could by their own will and act terminate the marriage: in the latter the Courts must be invoked to do so. But where the Courts out of good-nature or carelessness made a practice of complying with the application of one party, unresisted or feebly resisted by the other, this difference almost disappears. The facilities which some of the more lax States hold out to those who come to live in them for the requisite period, and who then procure from the complaisant Court a divorce without the knowledge of the other consort, constitute a grave blot on the administration of justice in the Union generally, for a marriage dissolved in one State (where jurisdiction over the parties has been duly created) is prima facie dissolved everywhere;1 and although the decree might conceivably be reversed if evidence could be given that it had been improperly obtained, it is usually so difficult to obtain that evidence that the injured party, especially an injured wife, must perforce submit.
Some General Reflections: Changes in Theory and in Sentiment regarding Marriage
A few words more to sum up the general result of our survey. We have seen that the relations of the wife to the husband have been regulated sometimes by one, sometimes by the other of two systems, which have been called those of Subordination and Equality.1 In all countries custom and law begin with the system of Subordination. In some, the wife is little better than a slave. Even at Rome, though she was not only free but respected, her legal capacity was merged in her husband’s.
This system vanishes from Rome during the last two centuries of the Republic, and when the law of Rome comes to prevail over the whole civilized world, the system of Equality (except so far as varied by local custom) prevails over that world till the Empire itself perishes.
In the Dark Ages the principle of the subordination of the wife is again the rule everywhere, though the forms it takes vary, and it is more complete in some countries than in others. It was the rule among the Celtic and Teutonic peoples before they were Christianized. It finds its way, through customs conformable to the rudeness of the times, into the law of those countries which, like Italy, Spain, and France, were only partially Teutonized, and retained forms of Latin speech. It holds its ground in England till our own time, though latterly much modified by the process which we call the emancipation of women, a process which, under the influence of democratic ideas, has moved most swiftly and has gone furthest among the English race in North America. But in our own time the principle of equality has, in most civilized countries, triumphed all along the line, and so far as we can foresee, has definitely triumphed. One must imagine a complete revolution in ideas and in social habits in order to imagine a return to the system of Subordination as it stood two centuries ago.
As there have been two systems determining the relations of husband and wife in respect of property and of personal control, so also have there been throughout all history two aspects of the institution of marriage, one in which the sensual and material element has predominated, the other in which the spiritual and religious element has come in to give a higher and refining character to the relation. In this case, however, it is not possible to make the relative importance of these two aspects synchronize with the general progress of civilization, nor even with the elevation of the position of women. It is true that among barbarous and some semi-civilized races the physical side of the institution is almost solely regarded, and that we may suppose a remote age when primitive man was in this respect not much above the level of other animals. But there have been epochs when civilization was advancing while the moral conception of marriage, or at any rate the popular view of marriage as a social relation, was declining. The tie between husband and wife in the earlier days of Rome was not only closer but more worthy and wholesome in its influence on the lives of both than it had become in the age of Augustus. Christianity not only restored to the tie its religious colour, but in dignifying the individual soul by proclaiming its immortality and its possibility of union with God through Christ gave a new and higher significance to life as a whole, and to the duties which spring from marriage. The greatest advance which the Christian world made upon the pagan world was in the view of personal purity for both sexes which the New Testament inculcated, a view absent from the Greek and Italian religions and from Greek and Latin literature, though there had been germs of it in the East, where habits of sensual indulgence more degrading than those of the West were opposed by theories of asceticism, which passed into and tinged primitive and mediaeval Christianity.
The more ennobling view of love and of the marriage relation held its ground through the Middle Ages. There was plenty of profligacy—as indeed the ideal and the actual have never been more disjoined than in the Middle Ages. But in spite of profligacy on the one hand, and the glorification of celibacy on the other, and notwithstanding the subjection of women in the matter of property and even of personal freedom, the conception of wedded life as recognized by the law of the Church and enshrined in poetry remained pure and lofty. That the Reformation took away part of the religious halo which had surrounded matrimony may be admitted. Whether this involved a practical loss is a difficult question. It may be that, in their anxiety to be rid of what they deemed superstition, and in their disgust at the tricky and mercenary way in which ecclesiastical lawyers had played fast and loose with the intricate rules of canonical impediment, the Reformers of Germany, Scandinavia, and Scotland forgot to dwell sufficiently on the fact that though marriage is a civil relation in point of form and legal effect, it ought to be, to Christians, essentially also a religious relation, the true consecration of which lies not in the ceremonial blessing of the Church, but in the solemnity of the responsibilities it involves. Yet it is not clear that, in point of domestic happiness or domestic purity, the nations which have clung to the mediaeval doctrine stood a century ago, or stand now, above those which had renounced it. General theories regarding the influence of particular forms of religion, like theories regarding the influence of race, are apt to be misleading, because many other conditions have to be regarded as well as those on which the theorist is inclined to dwell.
Whoever regards the doctrines of the Roman Catholic Church respecting marriage and realizes her power over her members will expect to find a higher level of sexual morality in Roman Catholic countries than he will in fact find. So on the other hand will he be disappointed who accepts that view of the superiority in social virtues of peoples of Teutonic stock which finds so much favour among those peoples, for dissolutions of the marriage tie have latterly grown more frequent than they formerly were among Protestant and Teutonic nations, and are apparently less condemned by public opinion than was the case in older days.
The material progress of the world, the mastery of man over nature through a knowledge of her laws, the diffusion of knowledge and of the opportunities for acquiring it, are themes which ceaselessly employ the tongues of speakers and the pens of journalists, while they swell with pride the heart of the ordinary citizen. But they are not the things upon which the moral advancement of mankind or the happiness of individuals chiefly turns. They co-exist, as the statistics of recent years show, with an increase, over all or nearly all civilized countries, of lunacy, of suicide, and of divorce.
LIST OF AUTHORS CONTRIBUTING
[1 ]This Essay was first published in the Harvard Law Review, 1904, XVIII, pp. 120-131.
[2 ]Professor of History in Harvard University. Williams College, A. B. 1878, LL. D. 1904; Göttingen University, Ph. D., 1883.
[3 ]Auffroy, Évolution du Testament en France, 555; cf. ibid., 376-84. “Very often a man makes no will until he feels that death is near”: Pollock and Maitland, English Law, 2nd ed., ii. 340.
[4 ]The prelates order that when a man makes a will he should dispose of part of his property for the good of his soul; also that a priest should be present when a will is made: Wilkins, Concilia, i. 583, 638, ii. 155, 156.
[5 ]Du Cange, Glossarium, s. v. intestatio; Établissements de Saint Louis, ed. Viollet, iv. 42-49; Caillemer, Confiscation et Administration des Successions par les Pouvoirs Publics, 43-54; Pollock and Maitland, bk. ii. ch. vi. § 4. Caillemer believes that in some parts of France the confiscation of the intestate’s goods by the lord was not a punishment for a religious offense, but a stage in the development by which serfs obtained the right to dispose of their property.
[1 ]On the history of the English law of intestacy, see Selden, The Disposition of Intestates’ Goods (Collected Works, iii. 1677); Moore, Reports of Cases heard by the Judicial Committee of the Privy Council, v. 434-98; Makower, Const. Hist. of the Church of England, 428-31; Pollock and Maitland, bk. ii. ch. vi. § 4 (the best account of the subject); on the history of legitim, ibid., bk. ii. ch. vi. § 3.
[2 ]Pollock and Maitland, ii. 360, rejecting Selden’s opinion that intestacy was common.
[3 ]Ibid., ii. 340.
[4 ]Reports, ix. 38 b.
[5 ]Commentaries, bk. ii. ch. 32.
[1 ]Coutumiers de Normandie, ed. Tardif, ii. 56, ch. 20.
[2 ]“Omnia mobilia ipsius domini regis debent esse aut illius in cujus terra est”: Teulet, Layettes du Trésor des Chartes, i. no. 785; Duchesne, Hist. Norm. Scriptores, 1060 cf. Tardif, Coutumiers de Normandie, i. pt. ii. 93; Delisle, Cat. des Actes de Philippe-Auguste, no. 961.
[3 ]“Distributio bonorum ejus ecclesiastica auctoritate fiet”: Ralph of Diceto, Imagines Historiarum (Rolls Series), ii. 88.
[4 ]Cal. of Charter Rolls, i. 441.
[5 ]Cf. Rot. Lit. Claus., i. 620.
[6 ]“Nullus praelatus vel judex ecclesiasticus . . . de bonis eorum qui intestati decedunt se aliquatenus intromittat, sed fisco bona hujusmodi applicentur”: Gilbert, Historic Documents (Rolls Series), 181; Chartae Hiberniae, 32.
[1 ]“Aldredus de Muchelegate debet lx. marcas de catallis Reginaldi qui obiit in domum suam (sic) sine divisa”: Pipe Roll, 16 Hen. II. p. 46. “Rogerus [de Floketorp] cepit de Emma quae fuit uxor Hugonis Flaxenebert de Kyneburl’ per manum Eustacii Noth de eadem, executoris dicti Hugonis, eo quod imposuit eis quod dictus Hugo decessit intestatus et quod medietas bonorum suorum fuit domino regi, et ideo cepit xx. s. ad opus suum proprium”: 3 Edw. I., Rotuli Hundredorum, i. 447. This was wrongfully exacted, for a jury found that Hugh had died testate. Roger was the bailiff of a manor that had escheated to the king. See ibid., i. 445, 449. See also Rot. Lit. Claus., i. 537 (writ, 7 Hen. III., stating that Richard Fitzdune did not die intestate, and therefore his chattels seized on behalf of the king are to be given to his executors); Close Roll, 17 Hen. III., cited by Selden, Works, iii. 1682 (writ ordering that a parson is to have his mortuary out of the chattels of Robert de Weston, who died intestate). It is difficult to accept Selden’s contention that the writ of 7 Hen. III. refers to seizure for a debt due to the king.
[2 ]Cal. of Papal Registers, i. 474.
[3 ]“Omnia bona mobilia ab intestato decedentium sive de regno Angliae sive de aliis terris [regis Angliae] . . . pro illa portione quae juxta patriae consuetudinem decedentes contingit . . . ad opus . . . regis Angliae ut votum suum efficacius exequi valeat”: Rymer’s Foedera (Rec. Com.), i. 345. In 1248 Innocent IV. decreed that the goods of intestates should be set aside by the bishops for the needs of the Holy Land: Fournier, Les Officialités, 89. At the parliament of Carlisle, in 1307, complaint was made that officers of the pope demand for his use all the goods of intestates: Rotuli Parl., i. 220.
[4 ]Cnut’s Laws, ii. ch. 70: Liebermann, Gesetze, i. 356.
[1 ]Below, p. 126, n. 5.
[2 ]Liebermann, Gesetze, i. 514.
[3 ]Ibid., i. 522. According to King Stephen’s charter, the goods of intestate clerics were to be distributed for the benefit of the soul by the counsel of the church: Stubbs, Select Charters, 120; cf. Pollock and Maitland, English Law, 2nd ed., i. 519. In 1190 the clergy of Normandy claimed that such goods do not belong to the secular power, but should be distributed by episcopal authority for pious uses: Ralph of Diceto, Imagines Hist., ii. 87.
[4 ]According to the Grand Coutumier of Normandy and the Établissements de Saint Louis, desperati or inconfessi do not forfeit their movables in case of sudden death, but only after a fatal illness of eight or nine days: Auffroy, Évolution du Testament, 556; Du Cange, s. v. intestatio. See also the rule laid down by the clergy of Normandy in 1190 and the inquest made in 1205, above, p. 121.
[5 ]Bk. vii. ch. 16: “Cum quis vero intestatus decesserit omnia catalla sua sui domini esse intelliguntur; si vero plures habuerit dominos, quilibet eorum catalla sua recuperabit quae in feodo suo reperiet.”
[6 ]18 Hen. II., pp. 98, 133.
[7 ]Stubbs, Select Charters, 300, ch. 27.
[1 ]In 1239 a rule is made regarding the administration of the goods of intestates in the absence of the bishop: Wilkins, Concilia, i. 664.
[2 ]Ibid., i. 675.
[3 ]Bracton, f. 60 b, ed. Twiss, i. 480. Bracton’s text is open to the interpretation that if intestacy is not occasioned by sudden death it may be a cause of forfeiture.
[4 ]Matthew Paris, Chronica Majora, ed. Luard, vi. 358; Wilkins, Concilia, i. 728; cf. ibid., i. 724.
[5 ]Ibid., i. 740, 754; cf. ibid., ii. 705.
[6 ]Registrum J. Peckham, i. 77.
[1 ]Memoranda de Parliamento, 1305, ed. Maitland, 73. The king answered that he would not interfere with the custom of the country, meaning perhaps the custom of Wales. For conflicts arising from the claims of the prelates in France, see Auffroy, Évolution du Testament, 558-60.
[2 ]Court Rolls of the manor of Wakefield, ed. Baildon, i. 256, 260; Rotuli Hundredorum, ii. 758; Pollock and Maitland, 2nd ed., i. 417. Some lords did not permit their serfs to make wills or impeded their execution: Letters from Northern Registers, 73; Wilkins, Concilia, i. 724, 740, 754, ii. 155, 553, 705.
[3 ]“Item si aliquis liber homo de Kemeis decedat intestatus praedictus dominus nihil habebit de bonis intestati”: Baronia de Kemeys (Cambrian Archaeol. Assoc.), 59.
[4 ]“Consuetudo est in marchia Walliae optata [? obtenta] et usitata quod domini partium illarum omnia bona et catalla tenentium suorum in partibus illis intestatorum decedentium ratione dominii sui praedicti habent et habere consueverunt a tempore quo non extat memoria.”
[5 ]Baronia de Kemeys, 14, 71.
[6 ]Ibid., 15. In 1485 we hear of the office of selling goods of intestates in the county of Flint,—an office which seems to have been in the gift of the king: Rotuli Parl., vi. 353.
[1 ]The references are to town charters, excepting those concerning Cardiff, Hereford, Preston, and Tewkesbury, which are to customals or to Domesday Book. The asterisk indicates that the privilege was granted by a baron. Where there is no asterisk the reference is to a royal charter, except in the cases of Hereford and Preston.
[2 ]“Item quacunque morte burgensis praeoccupatus fuerit, nisi per nequitiam dampnatus, uxor ejus et liberi sui habebunt catalla mortui vel proximi parentes ipsius tanquam heredes si non habuerit uxorem vel liberos.” From a customal of the twelfth century.
[3 ]“Et si aliquis civis de praedicta civitate in servitio meo occisus fuerit, de catallis suis fiat ac si ipse rationabile testamentum fecisset.”
[4 ]Whether they die testate or intestate, the goods of the citizens are not to be confiscated by the king but are to go to their heirs.
[5 ]“Heres burgensis quacumque morte praeoccupati habeat hereditatem et catallum patris sui.”
[6 ]“Si quis morte praeventus non divisisset quae sua erant, rex habebat omnem ejus pecuniam.”
[7 ]“Quicumque praedictorum burgensium de K. sive in terra sive in mari testatus vel intestatus obierit, heres ipsius duodecim denarios in relevium pacabit et hereditatem suam quiete possidebit.”
[8 ]Henry, duke of Lancaster, grants, 2 Edw. [III.], that if any burgher should die intestate his son and heir shall have his property “without challenge of us or our heirs.”
[1 ]“Item si burgensis moritur de quacunque morte morietur, nisi per judicium pro felonia vitam suam amittat, ego nihil habebo de catallo nisi relevium scilicet xii. d.”
[2 ]“Et [si] burgensis ejusdem villae quacumque morte et quocumque loco sive in terra sive in mari sive cum testamento sive sine testamento moriatur, heres suus omnes res suas habeat per donandum xii. d. de relevio.”
[3 ]“Si burgensis de villa morte subitanea obierit, uxor ejus et heredes sui omnia catalla sua et terras suas quiete habebunt. Ita quod dominus suus nec justiciarii manum ponant in domibus vel in catallis defuncti nisi publice excommunicatus fuerit, sed consilio sacerdotis et vicinorum in elemosinis expenduntur.”
[4 ]Reginald de Valle Torta grants to his burgesses: “et quisquis illorum obierit de quacunque morte fuerit, heres ejus catalla ipsius in pace habebit et terram suam per triginta denarios releviabit ad plus.”
[5 ]“Concedimus quod si quis burgensium praedictorum morte subita, quod absit, moriatur, omnia catalla sua sibi fore salva et heredem suum in hereditatem suam per relevium xii. d. libere introire.”
[6 ]Customal of Cardiff and Tewksbury. See above, under Cardiff.
[7 ]The exceptions are Chester, Cork, and Pembroke. In the charters of Chester and Cork the formula is merely abbreviated.
[8 ]“Si dicti burgenses aut eorum aliqui infra terram et potestatem nostram testati decesserint vel intestati, nos vel heredes nostri bona ipsorum confiscari non faciemus, quin eorum heredes ea integre habeant, quatenus dicta catalla dictorum defunctorum fuisse constiterit, dum tamen de dictis heredibus notitia aut fides sufficienter habeatur.” This formula is also used in the baronial charters of Laugharne and Oswestry, and in a grant made by Henry III. to the burgesses of St. Omer (Cal. of Charter Rolls, i. 441); instead of “heirs” the charter of Oswestry (1407) has “heirs and executors.” The formula, as set forth above, should be compared with that of a charter granted during the reign of Henry II. by his son Richard to the men of La Rochelle: “Quicumque ex illis sive testatus sive intestatus sive confessus sive non morietur, omnes res ejus et possessiones integre et quiete remaneant heredibus suis et genero suo” (Ordonnances des Rois, xi. 318, from the inspeximus of Louis VIII., 1224). An inspeximus of Alphonse of Poitiers, 1241, adds the words “id est” after “intestatus”: Besly, Histoire des Comtes de Poitou, 500. For other grants of this privilege to French towns, see Ordonnances des Rois, xi. 319, 321, 337, 495; Auffroy, Évolution du Testament, 557.
[1 ]Above, p. 122.
[2 ]“Si vero aliquis eorum colli fractione vel submersione vel aliquo casu subita morte praeventus fuerit et spatium confitendi non habuerit, concedo ut secundum rationabilem dispositionem et considerationem parentum et amicorum suorum res suae distribuantur et eleemosynae fiant pro anima ipsius”: Ordonnances des Rois, xi. 319. See also the claim of the clergy of Normandy in 1190, in Ralph of Diceto, Imagines Hist., ii. 88: “Si quis vero subitanea morte vel quolibet alio fortuito casu praeoccupatus fuerit, ut de rebus suis disponere non possit, distributio bonorum ejus ecclesiastica auctoritate fiet.”
[3 ]Above, p. 127, n. 2.
[1 ]“Ita semper quod de bonis ipsi defuncto pro portione accidentibus fiat testamentum per visum et auxilium amicorum suorum, si interesse voluerint, et distributio [sit] per manus ipsorum executorum debita et fidelis [secundum quod] credunt quod voluntas sua fuerit dum vixerit, et ad elemosinam et vias emendendas pro anima sua juxta bonorum quantitatem. . . . Et haec solent fieri ab antiquo usque ad nunc sine aliqua contradictione domini archidiaconi Cantuariensis vel alicujus alterius ordinarii”: Boys, Hist. of Sandwich, 524-5. In some parts of France the priest or the kinsmen might make a will on behalf of the intestate: Auffroy, Évolution du Testament, 557; Recueil des Monuments Inédits, ed. Thierry, iv. 408. Many bequests were made by the citizens of Bristol for the repair of highways: Wadley, Abstracts of Wills, passim. Another chapter of the Sandwich customal says that the movables of orphans are at the disposition of the mayor and jurats, “quia apud nos catalla et bona mobilia non accidunt hereditarie heredibus defuncti prout accidunt tenementa, redditus et possessiones,” but a portion of such chattels is set aside for masses, the repair of roads, and similar works of charity; thus in 1351 two-thirds were distributed in this way, and only one-third went to the heirs: Boys, 514.
[2 ]For London, York, and Chester, see Sharpe, Cal. of Wills, i. p. xxxiii.; Pollock and Maitland, English Law, 2nd ed., ii. 350; Widdrington, Analecta Eboracensia, 68, 300; Statutes of the Realm (Rec. Com.), vi. 372. The rule laid down in the Chester charter (c. 1200, above, p. 126) seems to imply that there was a definite division of the chattels in that city. The Bristol wills often make a threefold division of movables: Wadley, Abstracts of Wills, p. 104, “tertia vero pars sit mihi hoc modo”; cf. ibid., pp. 49, 75-77, 81, 90, 91, 100, 103, etc. For “the dead’s portion” (a third) at Dublin, see Gilbert, Cal. of Records, i. 129, 131. The custom of Newcastle-upon-Tyne, that the third part of all the goods of a burgher should be inherited by his children, was adopted by the Scotch burghs: Ancient Laws of the Burghs of Scotland, ed. Innes, 55, 172. Pollock and Maitland, ii. 362, believe that the eldest son or heir could claim no bairn’s part; but, according to the Newcastle custom, he was to have the same portion of the goods as any of the other children. The Leges Burgorum, ch. 116, also give a long list of heirlooms or principalia which he inherits: Ancient Laws, 56, cf. ibid., 171.
[1 ]Bracton, f. 61; Fleta, bk. ii. ch. 57, § 10; cf. Pollock and Maitland, ii. 350, for a criticism of Bracton’s statement regarding London.
[2 ]Above, p. 122. In the same year the citizens of London were excommunicated for admitting wills to probate in the hustings: Liber de Antiquis Legibus, 106.
[3 ]For probate in the hustings of London from 1256 onward, see Sharpe, Cal. of Wills, i. pp. xlii-xlvi; Liber Albus, 180, 403, 407; Ricart’s Kalendar, 97-99; Pollock and Maitland, ii. 331. See also Domesday of Ipswich, ed. Twiss, 70-86; Bacon, Annals of Ipswich, 10, 16, 25-27, 41-46, 50-55, 59-61, 68-73, etc. (wills proved from 1269 onward); Placitorum Abbreviatio, 211, 216, 235 (Canterbury, Oxford, and London, temp. Edw. I.); Little Red Book of Bristol, ed. Bickley, i. 32, 52-54 (ordinance concerning probate, 1344, etc.); Hist. MSS. Com. xi. pt. iii. 188 (grant by Edw. II. that wills touching tenements in King’s Lynn shall be proved and enrolled before the mayor); Owen and Blakeway, Hist. of Shrewsbury, i. 382; Oliver, Hist. of Exeter, 222; Widdrington, Analecta Eboracensia, 71. These references suffice to modify or confute the opinion of Bracton and the decision of the royal judges, 19 Edw. I. (Pollock and Maitland, ii. 330), that the jurisdiction over bequests of burgage tenements belonged to the ecclesiastical courts. In some boroughs a will was proved first before a representative of the bishop, and afterwards before a town magistrate in the gildhall: Wadley, Abstracts of Bristol Wills, 3, 5, 7, etc.; Manship, Hist. of Yarmouth, 405; Bacon, Annals of Ipswich, 41; Tighe and Davis, Annals of Windsor, i. 324; Registers of Walter Bronescombe, etc., ed. Hingeston-Randolph, 436 (Exeter); Hist. MSS. Com., xi. pt. iii. 233-4 (King’s Lynn). Perhaps a canon of Boniface’s Constitutions (1261, Wilkins, Concilia, i. 754; cf. ibid., i. 550, ii. 705) may be directed against this practice: “Item testamentis coram ordinariis locorum probatis et approbatis eorundem probatio seu approbatio testamentorum a laicis nullatenus exigatur.” Though the records emphasize the claim of the burgesses that wills devising burgage tenements should be proved in the borough court, many of the wills thus proved (for example, at London, Bristol, and King’s Lynn) bequeathed chattels only, or both chattels and land.
[1 ]Since the first half of the fourteenth century we hear of actions in the borough courts by the writ ex gravi querela to recover bequests of burgage tenements: Little Red Book of Bristol, ed. Bickley, i. 33; Liber Assisarum, f. 232, 250; Law Quarterly Review, i. 265. As early as 1291 the legatee had a remedy in the borough court of Ipswich against the executors who would not give him seisin: Domesday of Ipswich, ed. Twiss, 72, 82.
[2 ]Liber de Antiquis Legibus, 106; Letters from Northern Registers, 71.
[3 ]Stubbs, in Report of Eccles. Courts Commission, 1883, p. xxiii. He makes this statement in speaking of the jurisdiction of the church tribunals.
[1 ]This Essay was first published in the Harvard Law Review, 1895, vol. IX, pp. 42-48.
[2 ]A biographical note of this author is prefixed to Essay No. 41, in Volume II of this Collection.
[3 ]Early English Equity, 1 Law Quart Rev. 165. The Common Law, 348. Bracton 407 b. 61, 98 a, 101 a, 113 b. The article referred to in the Law Quarterly Review shows the origin and early functions of the executor. It is not necessary to go into them here.
[1 ]“Si vero non sufficiunt res defuncti ad debita persolvenda, tunc quidem hæres ejus defectum ipsum de suo tenetur adimplere: ita dico si habuerit ætatem hæres ipse.” Glanville, Lib. 7, c. 8. Regiam Majestatem, Book 2, c. 39, § 3.
[2 ]2 Rot. Parl. 240, pl. 35. St. 3 Ed. I., c. 19.
[3 ]Ass. Jerus., Bourgeois, ch. cxciii. 2 Beugnot, 130. Paul Viollet, Hist. du Droit Franç., 2d ed. 829.
[4 ]Viollet, op. cit. The Common Law, 347, 348. “Hæres autem defuncti tenebitur ad debita predecessoris sui acquietanda eatenus quatenus ad ipsum pervenerit, sci. de hæreditate defuncti, et non ultra,” &c. Bracton, 61 a.
[5 ]Y. B. 20 & 21 Ed. I. 374, 30 Ed. I. 238. II. Ed. III. 142. Id. 186. (Rolls ed.)
[1 ]Lyndwood, Provinciale. Lib. 3, Tit. 13. c. 5. (Statutum bonæ memoriæ), note at word, Intestatis. Dr. & Stud. Dial. 1, c. 19.
[2 ]1 Rot. Parl. 107, 108. It may be remarked, by the way, that an excellent example of trustee process will be found in this case.
[1 ]Y. B. 17 Ed. III. 66, pl. 83.
[2 ]Y. B. 11 Hen. IV. 5, pl. 11. Skrene in 7 Hen. IV. 12, 13, pl. 8. Martin in 9 Hen. VI. 44, pl. 26. Danby in 11 Hen. VI. 7, 8 pl. 12. Dyer, 32 a, pl. 2. 1 Roll. Abr. 931, D. pl. 3. 1 Wms. Saund. 336, n. 10.
[1 ]Y. B. 13 Ed. III. 398-401 (ad 1338), acc. 2 Rot. Parl. 397, No. 110 (Ed. III.). See also the intimation of Wychingham, J., in 40 Ed. III. 15, pl. 1. Fleta, Lib. 2, c. 57, § 6.
[2 ]1 Wms. Exors. (7th ed.) 646. In the ninth edition this is qualified slightly by the editor in a note. (9th ed.) 566, 567 and n. (p).
[3 ]1 Wms. Exors. 9th ed. 559. Howard v. Jemmett, 2 Burr. 1368, 1369, note; Farr v. Newman, 4 T. R. 621, 648.
[4 ]Wentworth, Executors (14th ed. Philadelphia, 1832), 198.
[5 ]Whitecomb v. Jacob, 1 Salk. 160; Ford v. Hopkins, 1 Salk. 283, 284; Ryall v. Rolle, 1 Atk. 165, 172; Scott v. Surman, Willes, 400, 403, 404. Rightly condemned quoad hoc in Re Hallett’s Estate, 13 Ch. D. 696, 714, 715. See also Miller v. Race, 1 Burr. 452, 457, S. C. 1 Sm. L. C.
[1 ]Crosse v. Smith, 7 East, 246, 258.
[2 ]King v. Viscount Hertford, 2 Shower, 172; Coggs v. Bernard, 2 Ld. Raym. 909. The Common Law, Lect. 5, esp. p. 195. Morley v. Morley, 2 Cas. in Ch. 2.
[3 ]Executors (14th ed.), 234.
[4 ]Lord Hardwicke in Jones v. Lewis, 2 Ves. Sen. 240, 241 (1751); Job v. Job, 6 Ch. D. 562; Stevens v. Gage, 55 N. H. 175. See Morley v. Morley, 2 Cas. in Ch. 2 (1678).
[5 ]Com. Dig. Administration (B. 10). Cf., Wms. Exors. (9th ed.) 558.
[6 ]Farr v. Newman, 4 T. R. 621.
[1 ]Whale v. Booth, 4 Doug. 36, 46. See 1 Wms. Exors. (9th ed.) 561, note.
[2 ]Woodward v. Lord Darcy, Plowden, 184, 185.
[3 ]Executors, (14th ed.) 77, 198, 199.
[4 ]Hopton v. Dryden, Prec. Ch. 179. Wentw. Exors. (14th ed.) 77, note, citing 11 Vin. Abr. 261, 263; Croft v. Pyke, 3 P. Wms. 179, 183; Burdet v. Pix, 2 Brownl. 50.
[5 ]Dyer, 2a. Elliott v. Kemp, 7 M. & W. 306, 313.
[6 ]See, e. g., the application of the trusteed wool to the judgment in 1 Rot. Parl. 108. Assignment of dower de la pluis beale, Litt. § 49. Delivery of debtor’s chattels by sheriff, St. Westm. II. c. 18. Kearns v. Cunniff, 138 Mass. 434, 436.
[1 ]Thorne v. Watkins, 2 Ves. Sen. 35, 36.
[2 ]17 Ves. 152, 169 (1810).
[3 ]See also M’Leod v. Drummond, 14 Ves. 353, 354.
[4 ]P. 166. Note the recurrence with a difference to their original position in the early Frankish law. 1 Law Quart. Rev. 164.
[5 ]See also Scott v. Tyler, 2 Dickens, 712, 725, 726.
[6 ]17 Ves. 152, 169.
[7 ]See Marvel v. Babbitt, 143 Mass. 226; Pierce v. Gould, 143 Mass. 234, 235; Mechanics’ Savings Bank v. Waite, 150 Mass. 234, 235.
[1 ]This Essay consists of extracts from a treatise entitled “Origines et développement de l’exécution testamentaire; époque franque et moyen âge” (Lyon, Rey; 1901). In extracting the parts needed to give some continuity in the account of English law, some transposition was necessary. The pages of the original, at the beginning of the respective passages, are shown in a bracketed footnote; they are chiefly pp. 3, 682, 679, 95, 406, 453, 503. The author has revised and added to these passages for the purpose of this Collection.
[2 ]Professor of the History of French Law, in the University of Grenoble, France, since 1906. Graduate of the University of Lyon, Faculty of Law; chargé de cours in French legal history, at the same, 1901-1903; agrégé in legal history at the University of Aix-en-Provence, 1903-1906.
[1 ][P. 682.]
[1 ]Hedaya, LII, 7: the executor having accepted his office is definitely bound to perform the will; the rights of the deceased executor pass to his own executors.
[1 ][P. 679.]
[1 ][P. 95.]
[1 ][P. 406.]
[2 ]This restriction was not absolute. Certain species of property, such as houses in cities, were assimilated to chattels, and regarded as devisable; they could therefore pass under the seisin of the executor. Bracton (ed. Travers Twiss) VI, 24, says that these houses are quasi catalla. But the executor very soon loses their seisin. In the 15th century the legatees of these houses may take possession of them without requiring the assent of the executors; and even where the testament directs the executors to sell such property and to distribute the proceeds, the seisin belongs, not to the executors but to the heirs at law. Littleton 167, 169.—On the other hand, the executors have always had the seisin of chattels real, rights in lands of fixed duration, and hence not included in the term real property: term of years, wardship in chivalry, and the right of mortgage, when it is created, not by a feoffment, but by a lease for years. Vice versa, heirlooms, though movable, go to the heir.
[1 ]§ 4: “Si quis obierit francus-tenens, haeredes ipsius . . . catalla sua habeant, unde faciant divisam defuncti.”
[2 ]Michel, Rôles gascons, I Nos. 109, 347, 367, 671, 1458, 1463, 1557, 1820, 2750, 3204, 3487.
[1 ]As Brunner has shown (Zeitschrift der Savigny Stiftung, Germ. Abt. 1898, p. 107 seqq.), this division of the succession into two or three parts is a widespread institution in the customs of the middle ages.
[1 ]It might happen that the testator wanted to confer upon his executors a right to his immovables: for this purpose, a transfer inter vivos was required, a feoffment of the immovables to the executors; and we have here one of the oldest and most remarkable application of uses, strongly reminding of the old form of executorship on the Continent (See Holmes, vol. II., of these Essays, No. 41). But these are in our opinion very different things. From the 13th Century on, the English law separates sharply the feoffee to uses, whose right relates to real property and arises from a feoffment, from the executor, whose right relates to personal property and arises from a will, the two capacities remain distinct, even while united in the same person.
[2 ]St. 25 Ed. III c. 5.
[1 ]Blackstone II c. 25, 32. Cf. Littleton 280, 281. The administrator of an executor dying intestate does not succeed to his office.
[2 ][P. 453.]
[3 ][See Essay No. 50, in this Volume, “The Early History of Negotiable Instruments.”—Eds.]
[4 ][See Professor Brunner’s article, “The Early History of the Attorney in English Law,” Illinois Law Review, 1908, III, 257.—Eds.]
[1 ]Bracton, De legibus, ed. Travers Twiss VI p. 212; and Cases No. 162, 325, 550, 684, in his Notebook. This distinction between claims which have been the subject of judgment or acknowledgment, and others, is not peculiar to the English law. It is also found on the Continent; but it is noteworthy, that the English law which in principle has rejected without distinction any assignment of claims, admits the distinction in question only in the matter of testamentary executorship. This can be explained only on the theory that English custom regards the executor not as an assignee, but as the representative of the deceased.
[2 ]Bracton’s Notebook No. 381, 559. The mortgage here seems to pass like a chattel into the hands of the executors; which is surprising, since at this time the creditor is ordinarily a feoffee of the mortgaged land, whose estate, upon his death, passes to his heir. Only in equity, the heir is regarded as trustee for the executor or administrator of the mortgagee: Williams, Real Property, 512. Perhaps this is the case of a mortgage created by a term of years, for the term of years is a chattel which passes to the executors or administrators of the termor.
[1 ]Ed. Travers Twiss I p. 482; II 122; 220; VI p. 212.
[2 ]Sharpe, Calendar of Wills I, pp. 3, 4, 11, 12, 13; Rymer, Foedera I, p. 495, will of Edward, son of the King of England (1272): “as queus (i.e. the executors) nus donoms e grauntoms plener poer, ke ils pusint ordiner, pur nostre alme, de tuz nos beyns moebles e noun moebles, cum en rendre nos dettes e redrecher les tort ke nus avons fet par nus ou par nos Baliz.”
[3 ]Historians of York III p. 165 (1248).
[1 ]See above, on this matter, vol. II, p. 301.
[1 ]Raine, Historical papers and letters from the Northern registers, No. 43, p. 71 (1279-1285), §3.
[2 ]II 57, §13 seqq.; II 62, §8 seqq.
[3 ]Britton c. 29, §35.
[4 ]Y. B. 20 and 21 Ed. I, p. 375 (1293); 21 and 22 Ed. I, p. 259 (1293), p. 519 (1294), p. 599 (1294); 33 and 35 Ed. I, p. 63, 69 (1305); 30 and 31 Ed. I, p. 238 (1302)
[5 ]Rolls of Parliament I, 43, 47a, 107, 164, 197 s.
[6 ]Already the Fleta clearly indicates this principle: Fleta II 62, §10. But see Stat. Westm. I. c. 36; Stat. Westm. II. c. 35, which admit subsidiarily an action against the heir, si executores non sufficiant.
[1 ]Doctor and Student, I, c. 19: “the heir, who in the English law is called executor.”
[1 ][P. 503.]
[1 ]Bracton’s Notebook, No. 550 (1231); Historians of York, III p. 165 (1248); Madox, Formulare No. 771 (1295); Sharpe, Calendar of Wills, p. 1, 3, 5, 48.
[2 ]Wills and Inventories, I No. 16 (1313), No. 25 (1335), No. 29 (1372); No. 31 (1378); No. 33 (1388); Madox, Formulare No. 774; Testamenta Eboracensia, I No. 1 (1316), No. 5 (1342), No. 70 (1375), No. 142 (1393); Historians of York III p. 271 (1349).
[3 ]Madox, Formulare, No. 773 (1326); Wills and Inventories, I, No. 21 (1334); No. 26; No. 30 (1372); Testamenta Eboracensia, I No. 3 (1341); No. 4 (1342); No. 6 (1342); No. 7 (1344); No. 13 (1346); No. 144 (1392); No. 8; No. 12.
[1 ]Furnivall, Fifty Earliest English Wills, p. 4, p. 9.
[2 ]II, p. 514.
[1 ]Rymer, Foedera I p. 144; Matth. Paris; Chron. maj. IV p. 604 et s.; Fleta II, 62, 13; Britton c. 29, § 35.
[1 ]This Essay was first published in the Harvard Law Review, 1897, vol. XI, pp. 69-79, under the title “The Theory of Post-Mortem Disposition; The Rise of the English Will,” and subsequently formed part of a treatise on Wills.
[2 ]Professor of law and dean of the faculty of law in Boston University Law School. Harvard University, Ph.D. 1879; Northwestern University, LL. D., 1896.
[1 ]Where, in the absence of debts against the estate, the property is found, after the late owner’s death, in the hands of one who would be entitled to it, one need not take out letters of administration in order to acquire title. That is probably the effect of English statutes.
[2 ]The State, however, hands the property over to the executor, administrator, or heir as representing the deceased; hence the State cannot be said to act as owner in the transaction except in so far as interfering may be considered an act of dominion, and so of ownership; with which point compare the law of trover. The suggestion as to the heir is of course pure assumption.
[1 ]Blackstone, II. 257.
[2 ]Wagner v. Wagner, 50 Iowa, 532; Abbott’s Cases, p. 123.
[1 ]“Occupancy,” says Blackstone, II. 257, “is the taking possession of those things which before belonged to nobody. This . . . is the true ground . . . of all property. . . . But when once it was agreed that everything capable of ownership should have an owner, natural reason suggested that he who could first declare his intention of appropriating anything to his own use, and . . . actually took it into possession, should thereby gain the absolute property of it; . . . quod nullius est, id ratione naturali occupanti conceditur.”
[1 ]There lies the very source of law; law is only the drawing and keeping men together in society,—the fulfilling of the social instinct.
[2 ]That was a “marvellous thing” in the fifteenth century, when it was first seen that a mere direction to an executor to sell lands, which belonged by descent to the heir, could when acted upon by sale confer ownership. It was drawing “fire from a flint when there was no fire in the flint.” Year Book, 9 Hen. VI. 24 b. But it is no marvel now.
[1 ]Wills of land were lawful and in constant use in England before the Norman conquest (1066).
[2 ]See Maine, Ancient Law, c. 6, p. 189; Abbott, p. 19.
[3 ]“When the phenomena of primitive societies emerge into light, it seems impossible to dispute a proposition which the jurists of the seventeenth century considered doubtful, that intestate inheritance is a more ancient institution than testamentary succession.” Maine, Ancient Law, c. 6, p. 189; Abbott, p. 19.
[4 ]As to the wills in the Germanic codes, “they are almost certainly Roman. The most penetrating German criticism has recently been directed to these Leges Barbarorum, the great object of investigation being to detach those portions of each system which formed the customs of the tribe in its original home from the adventitious ingredients which were borrowed from the laws of the Romans. In the course of this process one result has invariably disclosed itself, that the ancient nucleus of the code contains no trace of a will. Whatever testamentary law exists has been taken from Roman jurisprudence.” Maine, ut supra.
[1 ]Preserved in Kent in Gavelkind, well called the common law of Kent.
[2 ]See Sir H. S. Maine, in the sixth chapter of his Ancient Law; also, Abbott’s Cases, pp. 19 et seq., where Maine is quoted at length.
[3 ]It is possible, though but barely possible, that there still survived a notion of the family as a corporation.
[4 ]The author is now using a note of his own to the fifth American edition by him of Jarman on Wills, II. 332.
[1 ]In the Custumal, known as the Laws of Henry the First, a book of the first half of the twelfth century, it is said that one who has bookland (land of inheritance conveyed by writing) from his “parentes” should not convey it away from his family. Henry I. c. 70, § 21; Placita Anglo-Normannica, Introd., 44, 45, note. In the reign of the same king (1100-1135) a son confirms, or rather makes anew, a gift of land made by his father to the Church, which had been adjudged good against the son. Placita Anglo-Norm., 128, 129. See also Hist. Mon. Abingdon, II 136, anno 1104. About the year 1160 the Abbot of Abingdon sues a tenant named Pain “cum filio quem hæredem habuit” to recover fiefs forfeited, as alleged, by the father. Pain “et filius suus” entered into a concord with the abbot, and so terminated the suit. These were cases of gifts to the donee and his heirs.
[1 ]Glanvill, Lib. 7, c. 5. See Magna Charta of John (ad 1216), c. 26, of Henry III., 1216, c. 21, 1217, c. 22, 1224, c. 18; Bracton, 60 b; Fleta, Lib. 2, c. 57, § 10. So some fifteen years before Glanvill, in the Constitutions of Cashel, c. 6 (ad 1172), introducing English law into Ireland; but saying “children” where Glanvill says “heir.” Giraldus Cambrensis, Conquest of Ireland, Lib. 1, c. xxxiv. Magna Charta, Bracton and Fleta, ut supra, and Regiam Maj., Lib. 2, c. 37, also say “children” instead of “heir.” This casts a doubt upon the text of Glanvill; is it likely that primogeniture made such a great advance as that indicated by Glanvill, within a few years, and then, within another short time, fell back to its old position?
[2 ]See Blackstone, II. 491.
[3 ]The older usage of the common law, in favor of the widow and children, prevailed longer in Wales, in the province of York, and in London. Ibid.
[4 ]Maine, Ancient Law, c. 7, p. 217; Abbott, p. 26.
[5 ]Maine, c. 7, p. 217.
[1 ]Ibid. On the various stages of the English will, see Pollock and Maitland’s History of the English Law, II, 312-353. That subject is beyond the present purpose.
[2 ]Wills still appear to have a close connection in England with the position of the eldest son. It is stated that wills are frequently used there to aid or imitate that preference for the eldest son and his line which is a general feature in marriage settlements of land. Maine, ut supra. For the process and stages by which primogeniture came about, the reader is referred to the passages in the chapter in Maine’s Ancient Law, above cited, and to the extracts from the same in Abbott’s Cases, pp. 26-28.
[1 ]This Essay was published in “Studies in History and Jurisprudence,” 1901 (London and New York: Oxford University Press), pp. 782-833, 856-859, being part of Essay XVI in that work.
[2 ]A biographical note of this author is prefixed to Essay No. 10, in Volume I of this Collection.
[1 ]Euripides (Androm. vv. 173-180) contrasts the marriage usages of barbarians and Greeks, and dilates (cf. v. 465 sqq.) on the evils of polygamy.
[2 ]Tac. Germ. c. xvii.
[1 ]Although Julius Caesar, if we may credit Suetonius, caused a measure to be drafted for enabling him to marry as many wives as he liked for the sake of having legitimate issue (Suet. Julius. c. 52).
[2 ]Among the Jews it was (though forbidden by Roman law) not formally abolished till the tenth century.
[1 ]Some writers doubt whether this power of sale existed, and refer to a supposed ‘law of Romulus’ mentioned by Plutarch which devoted to the infernal gods whoever sold his wife. But the balance seems to incline in favour of the existence of the power.
[1 ]There has been much dispute as to this ceremony: I give what seems the most probable view. It may descend from a more ancient sale of the wife by her relatives to the husband, similar to that which we find in some primitive peoples.
[2 ]This was in pursuance of the general rule that rights over a movable were acquired by a year’s continuous holding: ‘usus auctoritas fundi biennium, caeterarum rerum annuus esto.’
[3 ]If she was in the power (potestas) of her father, she had no property of her own. If she was sui iuris, she was under guardianship.
[1 ]Nevertheless it was retained in a few families for the purpose of providing persons who could hold four great priestly offices, since by ancient usage none save those born from a marriage with confarreation were able to serve these priesthoods. But its operation seems to have been restricted by a decree of the senate so as to apply only so far as religious rites were concerned (quoad sacra) (Gai Inst. i. 136).
[1 ]I pass by the distinction between iustae nuptiae, which could be contracted only between Roman citizens, and the so-called ‘natural’ marriage, or matrimonium iuris gentium, which was created by the marriage of a full citizen to a half citizen or an alien (peregrinus), because the latter is of no consequence for our purpose, and practically disappeared when all Roman subjects became citizens. It was a perfectly valid marriage, and the children were legitimate. As to their status, see Gaius, Inst. i. 78, 79.
[2 ]Where either party was subject to the paternal power of his or her father (or grandfather), the consent of the father (or grandfather) (or both) was required, though in a few specified cases it might be either dispensed with or compelled. This was a consequence of the Roman family system. It was irrespective of the age of bride or bridegroom.
[3 ]The Emperor Majorian (ad 455-461) is said to have issued a constitution for the Western Empire, making the creation of a dos essential to the validity of a marriage; but this provision, which can hardly have been intended to be general, seems to have never taken effect. The Western Empire was then in the throes of dissolution.
[1 ]See Paul., Sent. Recept. xix. 8; Dig. xxii. 2. 5. The suggestion which may be found in some modern writers that Marriage fell within the class of the contracts created by the delivery of an object (the so-called Real Contracts), has no Roman authority in its favour, and is indeed based on a misconception of the nature of those four contracts, in all of which the obligation created is for the restoring of the object delivered Marriage is assuredly not a bailment.
[2 ]This was at any rate a usage among the Latins; but how far in Rome seems doubtful.
[1 ]Under the Empire we usually find women using two names, from their father’s gens and family (e. g. Caecilia Metella). Sometimes, it would seem, the name of the father’s gens was followed by one taken from the mother (e. g. Iunia Lepida, Annaea Faustina). The subject is fully discussed by Mommsen, in his Romisches Staatsrecht.
[2 ]A special action (rerum amotarum) was given in this case. Some jurists held that the joint enjoyment of household goods made the conception of Theft inapplicable to a wife’s dealings, however unauthorized, with her husband’s property. Dig. xxv. 2. 1.
[3 ]Dig. xliii. 30. 2.
[4 ]The guardianship of women of full age seems to have died out after women received power to select a guardian for themselves, a change which of course made his action purely formal.
[1 ]The mother’s succession was originally granted only where she had borne three children (if a freed-woman, four).
[1 ]The ‘custom of conveyancers’ has worked itself into English law in a somewhat similar way.
[2 ]This was the rule as settled by Justinian. Before his time, the husband took the Dos at the wife’s death unless it had been given by her father.
[3 ]There are many less important rules regarding the extent of the husband’s interest and the form in which the property is to be restored at the end of the marriage, which it is not necessary to set forth, as they do not affect the general principle. Indeed generally through these pages I am forced, for the sake of clearness and brevity, to omit a number of minor provisions.
[1 ]‘Sextus Caecilius et illam causam adiciebat, quia saepe futurum esset ut discuterentur matrimonia si non donaret is qui posset atque ea ratione eventurum ut venalicia essent matrimonia.’ This view was sanctioned by the Emperor Caracalla in his speech to the senate, which introduced the exception next mentioned in the text; Dig. xxiv. 1. 2.
[1 ]‘Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris communicatio;’ Modestinus in Dig. xxiii. 2. 1.
[2 ]This was expressed in the phrase which the bride anciently used when brought to the husband’s house: ‘Ubi tu Gaius, ego Gaia.’
[3 ]‘Libera matrimonia esse antiquitus placuit,’ says the Emperor Severus Alexander in the third century. Cod. viii. 38. 2.
[1 ]A so-called ‘law of Romulus’ is said to have enumerated poisoning the children, adultery, and the use of false keys as grounds justifying the husband in divorcing his wife, no parallel right being granted to her. And there seems to have been a provision regarding divorce in the Twelve Tables.
[1 ]‘Si sine uxore, Quirites, possemus esse, omnes ea molestia careremus, sed quoniam ita natura tradidit ut neque cum illis commode nec sine illis ullo modo vivi possit, saluti perpetuae potius quam brevi voluptati consulendum.’ Aul. Gell. Noct. Att. i. 6: cf. Liv. Epit. Book lix, and Sueton. Vit. Aug. Augustus, according to Gellius and Suetonius, caused this speech, delivered a century before, to be read aloud in the Senate in support of his bill De Maritandis Ordinibus, as being one which might fitly have been made for their own times.
[1 ]The older doctrine had been that foreign captivity destroyed marriage ipso facto.
[1 ]Especially those contained in the lex Iulia et Papia Poppaea.
[1 ]It is a curious instance of the variance of custom in this respect, that after it had in England become unusual for cousins of different sexes to kiss one another, the practice remained common in the simpler society of Scotland and still more in that of Ireland.
[2 ]Tac. Ann. xii. 5-7.
[1 ]Many other prohibitions of marriages applying to persons holding official relations, or to persons of widely different rank, or to cases where adoptive relationships come in, need not be mentioned, as they have no longer any great interest.
[2 ]Cod. Theod. iii. 12, 2 sqq.; Cod. Iustin. v. 5. 5 and 8.
[3 ]The connexion of two slaves, called contubernium, was not deemed a legal relation at all, and children born from it were not legitimate. So also a free person could not legally intermarry with a slave.
[4 ]See Essay XI, p. 570, in the Studies from which this chapter is taken.
[1 ]‘Ad breve Regis de bastardia utrum aliquis natus ante matrimonium habere poterit hereditatem sicut ille qui natus est post. Responderunt omnes Episcopi quod nolunt nec possunt ad istud respondere, quia hoc esset contra communem formam Ecclesie. Ac rogaverunt omnes Episcopi Magnates ut consentirent quod nati ante matrimonium essunt legitimi sicut illi qui nati sunt post matrimonium quantum ad successionem hereditariam quia Ecclesia tales habet pro legitimis; et omnes comites et barones una voce responderunt quod nolunt leges Anglie mutare que usitatate sunt et approbate.’ 20 Henr. III, Stat. Mert.
[2 ]Pollock and Maitland, vol. ii. p. 397. I have heard of the cloak custom as existing in Scotland down almost to our own time.
[1 ]See Lord Stowell’s famous judgment in Lindo v. Belisario (Consist. Cases, p. 230), where he examines in an interesting way the requisites of marriage under the ‘law of nature.’
[2 ]Canon VII of Session XXIV anathematizes those who deny the teaching of the Church that the adultery of one spouse does not dissolve the vinculum matrimonii, and Canon X those who deny that it is better and happier to remain in a state of virginity or celibacy.
[1 ]The pontifices had a certain oversight over the sacred marriage by confarreatio, and their action was needed to effect a diffarreatio, when it was desired to extinguish the manus of the husband over a divorced wife.
[1 ]Others think that this expression, which would seem to refer not to real property but to chattels, is a relic of ancient Teutonic custom. As is observed by Messrs Pollock and Maitland (History of English Law, vol. ii. p. 401), we must not assume that, from the days of savagery down to our own, all changes have been in favour of women. They had apparently more power over their own property in Anglo-Saxon times than in the thirteenth century.
[1 ]Messrs. Pollock and Maitland, in their admirable History of English Law, to which the reader curious in these matters may be referred.
[1 ]The House of Lords was equally divided upon this point in the case of Reg. v. Millis, in 1843: but historical inquiry tends to confirm the view of Lord Stowell, that the presence of a clergyman was not essential (see Dalrymple v. Dalrymple, 2 Haggard, p. 54).
[2 ]The English Dissenters soon began to complain of this Act, as they were thenceforth (until 1836) obliged to be married in church. Charles James Fox used to denounce the Act as ‘contrary to the Law of Nature.’
[1 ]A civil marriage is not, however, compulsory in England as it is in France and some other continental countries. In Scotland it has now become fashionable for Presbyterians to be wedded in church, but the Scottish law, as every one knows, does not prescribe either a clergyman or a registrar.
[1 ]Pollock and Maitland, vol. ii. ch. vii. p. 404 (quoting Bracton, 429 b).
[1 ]Kovalevsky, Modern Customs and Ancient Laws of Russia, p. 44.
[2 ]My friend Mr. F. W. Maitland, whose authority on these matters is unsurpassed, informs me that he knows of no such trace. The practice, however, seems to have been not uncommon. Several instances of the sale of a wife by auction, sometimes along with a child, are reported from Kent between 1811 and 1820.
[3 ]See Pollock and Maitland, vol. ii. p. 395.
[1 ]Blackstone, Commentaries, vol. i. bk. i. chap. 15.
[2 ]1 Q. B. p. 671 (in the Court of Appeal). The judgments are instructive. The Master of the Rolls goes so far as to doubt whether the husband ever had a legal power of correction, a curious instance of the way in which the sentiment of a later time sometimes tries to force upon the language of an older time a non-natural meaning, the new sentiment being one which the older time would have failed to understand. It would have been simpler to admit that what may well have been law in the seventeenth century is not to be taken to be law now, manners and ideas having so completely changed as to render the old rules obsolete.
[1 ]This promise does not appear in the forms of marriage service commonly used by the unestablished churches of England, or most of them.
[1 ]Messrs. Pollock and Maitland refer to the dooms of Aethelbert as showing the permissibility of divorce in early English law (History of English Law, vol. ii. p. 390).
[2 ]But canonical ingenuity discovered methods by which in some cases the legitimacy of the children might be saved though the marriage was declared void.
[1 ]There had also sprung up the practice of effecting private separations between a husband and a wife by means of a deed executed by each of them, and such a deed presently came to be recognized as a defence to a suit by either party for the restitution of conjugal rights.
[1 ]Probably the English Jews were permitted to exercise in the seventeenth and eighteenth centuries the right of divorce which their own law gave them. But in those days the Jews were so cut off from the general English society that the phenomenon passed almost unnoticed. They were a very small community, living practically under their personal law, as the Parsis do in Western India to-day.
[2 ]The Act of 1857 (amended in some points by subsequent statutes) contains provisions intended to prevent collusion between the parties, and empowers the Court to regulate the property rights of the divorced persons and the custody of the children (if any) of the marriage.
[1 ]In two or three States the law provides that when an inhabitant goes into some other State for the purpose of getting a divorce for a cause arising within the State, or for a cause which the law of the State would not authorize, a divorce granted to him shall have no effect within the State.
[1 ]By Equality I do not mean any recognition of Identity or even Similarity as respects capacity and practical work (though the tendency is in that direction), but the equal possession of private civil rights and the admission of an individuality entitled to equal respect and an equally free play of action. Such Equality is perfectly compatible, given sufficient affection, with a complete identification of the consorts in the harmony which comes of the union of diverse but complementary elements.