MARRIAGES EN CHEMISE.—MANTELKINDER.—LEGITIMATION.
(Vol. vi., pp. 485. 561.)
The popular error on the legal effect of marriage en chemise is, I think, noticed among other vulgar errors in law in a little book published some twenty years ago under the name of Westminster Hall, to which a deceased lawyer of eminence, then young at the bar, was a contributor. I believe the opinion to be still extensively prevalent, and to be probably founded, not exactly in total ignorance, but in a misconception, of the law. The text writers inform us that "the husband is liable for the wife's debts, because he acquires an absolute interest in the personal estate of the wife," &c. (Bacon's Abridgment, tit. "Baron and Feme.") Now an unlearned person, who hears this doctrine, might reasonably conclude, that if his bride has no estate at all, he will incur no liability; and the future husband, more prudent than refined, might think it as well to notify to his neighbours, by an unequivocal symbol, that he took no pecuniary benefit with his wife, and therefore expected to be free from her pecuniary burdens. In this, as in most other popular errors, there is found a substratum of reason.
With regard to the other vulgar error, noticed at the foot of Mr. Brooks' communication (p. 561.), that "all children under the girdle at the time of marriage are legitimate," the origin of it is more obvious. Every one knows of the "legitimatio per subsequens matrimonium" of the canonists, and how the barons assembled in parliament at Merton refused to engraft this law of the Church on the jurisprudence of England. But it is not perhaps so well known that, upon such a marriage the premature offspring of the bride and bridegroom sometimes used to perform a part in the ceremony, and received the nuptial benediction under the veil or mantle of the bride or the pallium of the altar. Hence the children so legitimated are said to have been called by the Germans Mantelkinder. The learning on this head is to be found in Hommel's Jurisprudentia Numismatibus Illustrata (Lipsiæ, 1763), pp. 214-218., where the reader will also find a pictorial illustration of the ceremony from a codex of the Novellæ in the library of Christian Schwarz. The practice seems to have been borrowed from the form of adopting children, noticed in the same work and in Ducange, verb. "Pallium, Pallio cooperire;" and in Grimm's Deut. Rechts Alterth., p. 465.
Let me add a word on the famous negative given to the demand of the clergy at Merton. No reason was assigned, or, at least, has been recorded, but a general unwillingness to change the laws of England. As the same barons did in fact consent to change them in other particulars, this can hardly have been the reason. Sir W. Blackstone speaks of the consequent uncertainty of heirship and discouragement of matrimony as among the causes of rejection,—arguments of very questionable weight. Others (as Bishop Hurd, in his Dialogues) have attributed the rejection to the constitutional repugnance of the barons to the general principles of the canon and imperial law, which the proposed change might have tended to introduce,—a degree of forethought and a range of political vision for which I can hardly give them credit, especially as the great legal authority of that day, Bracton, has borrowed the best part of his celebrated Treatise from the Corpus Juris. The most plausible motive which I have yet heard assigned for this famous parliamentary negative on the bishops' bill at Merton, is suggested (quod minimè reris!) in an Assistant Poor-Law Commissioner's Report (vol. vi. of the 8vo. printed series), viz. that bastardy multiplied the escheats which accrued to medieval lords of manors.
E. Smirke.
A venerable person whose mind is richly stored with "shreds and patches" of folk-lore and local antiquities, on seeing the "curious marriage entry" (p. 485.), has furnished me with the following explanation.
It is the popular belief at Kirton in Lindsey that if a woman, who has contracted debts previous to her marriage, leave her residence in a state of nudity, and go to that of her future husband, he the husband will not be liable for any such debts.
A case of this kind actually occurred in that highly civilised town within my informant's memory; the woman leaving her house from a bedroom window, and putting on some clothes as she stood on the top of the ladder by which she accomplished her descent.
K. P. D. E.
In that amusing work, Burn's History of the Fleet Marriages, p. 77., occurs the following entry:—"The woman ran across Ludgate Hill in her shift;" to which the editor has added this note:—"The Daily Journal of 8th November, 1725, mentions a similar exhibition at Ulcomb in
Kent. It was a vulgar error that a man was not liable to the bride's debts, if he took her in no other apparel than her shift."
J. Y.
Saffron Walden.