[157] On the subject of the present Book in general, see Bracton fol. 92 et seq. and Fleta L. 5. c. 23. et seq.
[158] Dos, dower. “Dos is derived,” says Sir Edward Coke, “ex donatione, et est quasi donarium.” (Co. Litt. 30. b.) Cowell and Spelman, however, both deduce it from the French douaire. (Cowell and Spelman’s Gloss. ad voc.) The real objects of Dower are sustenance for the wife, and nurture and education for the children. (Fleta L. 5. Cap. 23.) The Romans were not in the habit of endowing their wives. When, therefore, Tacitus met with this peculiarity among the Germans, he was struck with it. Dotem non Uxor marito sed uxori maritus affert. (Tacit. de mor. German. 18.) Though Dower was unknown to the Romans, it seems to have been in use amongst the ancient Hebrews, (Gen. 34. 12. Exodus 22. 16. et al.) Nor was it unknown to the Grecians, if we may judge from that part of the Odyssey where Vulcan reclaims the Dower he had given to his frail wife. It seems to have been known to the ancient Gauls, (Cæsar, de bello Gallico L. 6. c. 18.) And to the Cantabri, (Strabo L. 3.) Craig, however, doubts whether there was any such thing as dower amongst the ancient Northern Nations. (Jus Feud. L. 2. Dieg. 14.) The Goths did not allow Dower to exceed a tenth. (Wisegoth. L. 3. t. 1. l. 4.)
The Assises of Jerusalem gave a half, (c. 187.)—the same portion as the Laws of the Ancient Duchy of Burgundy—(Chass. consuet. ducat. Burg. rub. 4. s. 6. col. 580.) The Saxons (LL. tit. 8.) præter dotem quam in nuptiis adepta est, allowed the half of what the Husband and Wife subsequently acquired. A Law of Edmund gave the half. (LL. Edm.) The Longobardi allowed Dower to extend to the fourth part. (L. 2. tit. 4.) The English, the Scotch, and the Normans, following in this respect the Sicilians and Neapolitans, have allowed Dower to extend to a third. (Vide LL. Hen. 1. 70. Ed. Wilkins.—Le Grand Custum. de Norm. c. 102.—the Regiam Majm. L. 2. c. 16.)
[159] Tempore desponsationis. Affiance and Marriage seem to be perfectly distinct things in the Civil and Canon Laws. (Vide Lyndw. Provinc. 271.) but our law books, it is said, use the terms promiscuously, as being synonymous. (See Co. Litt. 34. a. and Mr. Hargrave’s note.)
[160] Or at the Door of the Monastery, say the Mirror and Lord Coke. (Mirror. c. 1. s. 3. Co. Litt. 34. a.) The reason for requiring the endowment to be made at the door of these places was to give publicity to the transaction. (Bracton 92. a. Fleta L. 5. c. 23.)
[161] Tempore matrimonii is the expression of the Grand Norman Custumary, (c. 102.) and of the Regiam Majestatem (L. 2. c. 16.) and die quo eam desponsavit is the language of Bracton (92. a.) and Fleta (L. 5. c. 24.) notwithstanding that the 7th chapter of Magna Carta enlarged the widow’s claim to a third part of all such lands as the Husband is seised of in vita sua or, as it has been translated, during the coverture; and thus it has stood ever since, though not without having been materially encroached upon, by the comparatively modern doctrine of Trusts.
[162] For this purpose our Author gives us the form of a Writ, [Chapter 18th of the present Book].
[163] “Lest, by such liberal endowments, the Lord should be defrauded of his wardships and other feudal profits.” (2 Bl. Com. 133. See also Grand Cust. de Norm. c. 18.) It is a remarkable peculiarity of Legislation, that the same Law is frequently the result of principles the most different—thus, the modern French code tells us, that it will not allow the Dowry to be augmented during the marriage. (Code Napoleon s. 1543.)
[164] Questus, more properly, says Spelman, quæstus from quæro, purchased Lands, contradistinguished to Lands acquired by inheritance. (Vide Spelm. Gloss. ad voc. and Co. Litt. 18. a.) Purchased Lands were designated under the feudal Law by the feudum novum. (Craig Jus feud. L. 1. Dieg. 10. s. 13.)
[165] It is curious to observe the fluctuations of Law. Though Glanville in the text expressly lays it down, that a Woman may be endowed of chattels, or money, which, indeed, could have been the only mode of endowing in the still more distant ages of Antiquity, yet this was denied to be law in the Reign of Henry the fourth, (7. H. 4. 13. b.) The Doctrine of the Courts of Equity in the present day, in admitting equitable bars, seems, in point of substance, to revive the law as laid down by Glanville. The doctrine of the text is confirmed by the Regiam Majestatem, and Fleta: but the latter informs us, that Dowers, of the kind now under discussion, were only so far to be recovered, as the chattels of the deceased extended. (L. 5. c. 23.) Hence probably they fell into disuse.