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he rises, the more claims will he feel binding him to the dispensers of court-favour. He becomes more and more involved in a vor. tex, which irresistibly whirls him round with the general current. It is the custom to elevate our great lawyers to the peerage.
As they seldom possess an ample patrimony, their perquisites of office must go to the support of this rank; and they must look for an adequate provision for sons, now become noble, chiefly to posts at the disposal of Government. They cannot, if they would, again descend to the level of common citizens. Here is an additional cause of dependence, acting upon those of the judicial body who might otherwise be supposed to be the most favourably situated for asserting their freedom. Indigent nobility are in all coun. tries the most subservient class of society; and it is perhaps one of the greatest defects in our constitution that there is no limita. tion to the prerogative of the crown in multiplying the number. It might have been better in this instance to have made the ho. nours of the law, like those of the church, only personal.
The purpose of the preceding observations is not to excite a prejudice against those to whom the administration of the laws among us is entrusted, and who probably compose at least as pure and estimable a body as the judicatory of any other country can exhibit; but to cbviate deception in the application of a word which is liable to convey a meaning much beyond the truth,—to point out the natural tendencies of circumstances and situations, and above all, strongly to impress the expediency of preserving every check the constitution has provided against possible par. tialities in judicial decisions, especially that only efficacious one, of putting in the hands of Juries, and not of Judges, the finall award. But this trust is rendered nugatory if Juries come to conceive that they have nothing to do but to listen to the charge from the bench, and bring in their verdict accordingly. That in certain cases a particular influence will be operating on the Judge's mind, may, I think, be reasonably concluded. Of this bias the Jury should be aware; and without blaming him for summing up the evidence, and declaring the law, conformably to his own feelings, they should reflect that it is their business to de. cide conformably to theirs. To them is committed the superior trust, and theirs is the most sacred obligation.
Art. IV.-On the Right of Dower out of Personalty.
The philosophical historian of the Decline and Fall of the Roman Empire, thus prefaces his summary of its laws respecting the re
lation of husband and wife:--.“ Experience has proved, that savages are the tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life.” His following pages point out the successive relaxations of the bonds originally imposed by the stronger sex upon the weaker, through which the Roman wife found herself elevated from the purchased slave and adopted daughter of her master and husband, who ac. quired and inherited for his sole emolument,---who might be claimed as a moveable by the use and prescription of a year,--whose life was subject to his jurisdiction, and might legally be taken away by him for offences against his honour or his autho. rity,---to the equal associate of a partner who, no longer pretend. ing to exercise controul over her person or property, sought no re. medy against her misconduct but in the power of divorce, which was also extended to herself. But the progress of manners far outstrips that of legislation ; and it ought to be remarked, though the observation appears to have escaped the sagacity of the histo. rian, that it was much less by amendments of the laws of ancient Rome, than by partial evasions of them, principally among the higher classes, that the situation of women was rendered less de. pendent under the empire than under the republic, so that it may be doubted whether the mass of females, in low life, were much, if at all, benefited by the change. It was by certain modes of eluding the Voconian law and others which excluded married wo. men from their father's inheritance, that they became possessed of lands and personalty, of which, by their marriage settlements, they communicated to their husbands the income, but reserved the property ;---it was by a preconcerted absence of three days that they defeated the prescription of a year; and it was, in short, by waiving the ceremony of marriage, that they escaped the jurisdiction of a fully-authorised husband, and secured to themselves such large liberty of divorce (if that term be applicable where no nuptial rites have preceded), as soon degenerated into the most frightful licentiousness. In fact, the tenderness of fathers for their daughters has operated in many countries to obtain for particular women, or classes of women, peculiar favours or exemptions; but the pride of man in general, and the jealousy of husbands in par. ticular, has every where, in the most refined states of society, rendered female subjection the rule, and any allowance to the sex of equal rights, only the exception. Judge Blackstone, aptly styled by Gibbon, " the orthodox," has indeed thought proper to close his summary of the legal effects of marriage, with the observa. tion, “ that 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 with the law of England.” But “ if lions were painters," if women were law-makers, it would
probably soon be seen that these “ disabilities” are considered in a very different light by those against whom they operate ; I have even known men of a more liberal and impartial way of thinking, so much impressed with the hardship of many of these very laws towards women, as strenuously to maintain that Blackstone could only have intended this remark for a fine stroke of irony. It is true, that in the paragraph immediately preceding, he mentions the privilege of inflicting corporal punishment upon a wife, as still claimed and exerted by husbands of the lower class, in spite of some provisions made against it " in the polite reign of Charles II.;" he also there affirms that “ the courts of law will still allow a husband to restrain a wife of her liberty in case of gross misbehaviour;" but notwithstanding all this, I dare not be. lieve that so warm panegyrist of the establishments of his coun. try was here indulging himself in sarcasm. Our criminal law is so far favourable to females, that it does not punish a married wo. man for some felonies and smaller crimes committed through con. straint of her husband ; and since the punishment of burning has been commuted for that of hanging, in cases of high and petty treason, I am not aware that it is in any case more severe against the weaker sex than the stronger. Since women have no longer been considered as in a state of perpetual pupilage, one who is single and of age also enjoys the same liberty as a man in the disposal of her person and property; but from a married woman, our law requires such a total surrender of herself, and all that she is worth, to the absolute controul and possession of her husband, as is unknown, I believe, in all the countries of Europe where the code of Justinian has been made the basis of legislation. By the civil law, a man and his wife are regarded as two persons, conse. quently the wife may perform many independent acts, and sue and be sued separately; a privilege of which the French women have availed themselves so largely, that soliciting judges, and at. tending to the other business of a proces, appears to be with them one of the regular occupations of life. Accordingly, Madame de Genlis, in her Adele and Theodore, prescribes a course of law lectures as a very important part of the education of a young wo. man of fortune. With us the case is otherwise ; English women, generally speaking, "have nothing to do with the laws but to obey them;" consequently, they are both indifferent to their provisions, and, for the most part, profoundly ignorant of them, ---an ignorance and an indifference dear to the indolent and flat. tering to the weak, but disgraceful to cultivated understandings, and dangerous to all the civil rights of the sex,
While women have slept, artful and interested men have watched; and silently, furtively, by steps of which the sages of the law themselves find it difficult to trace back the vestiges, they have torn away from be
fore the widow and the orphan, the effectual barrier which for: merly stood between them and beggary, through the posthumous ca. price of a jealous husband or an unnatural father,---a monument of the mercy and the wisdom of ages! This barrier was the legal title of a widow and children to their reusonuble portions (partes rationabiles) of the personal property of their deceased protector, which no testament of his could in any wise defeat,founded on the plainest principles of nature and equity, and still secured to them, in cases of intestacy, by explicit statutes.
The annihilation in modern times of such a right, as far as it concerns widows, forms a striking exception to the position of Gibbon above cited, and on this account, as well as others, a fur. ther investigation of the subject may prove not uninteresting. The legal appropriation of a part of the property of the husband for the support of his relict, was a provision quite unknown to the civil law, but established from time immemorial among our Ger. man ancestors. The Anglo-Saxon bridegroom, though he had purchased the consent of his wife's father os guardian, receiving only a present from him in return, was yet obliged to settle upon her a dowry, of which she was to enjoy, in case of widowhood, sometimes the use, sometimes the property; and also a sum called the morning-gift, by way of pin-money, which immediately came into her separate disposal. By the laws of King Edmond, the wi. dow was directed to be supported entirely out of the personal property of her husband; which makes it probable that the right of dower ort of land was never acknowledged by the Saxons, but first introduced into England' by the Normans, or rather by the Danes, after Swein, the father of Canute, had granted that privi. Jege to his countrywomen, in return for their sacrifice of all their jewels to redeem him from captivity among the Vandals. In the reign of Henry II, if a man dying left a wife and children, one-third of his goods went to the wise, another third to the children, and the remaining third only could be disposed of by his will. If he left only a wife, or only children, half went to her, or them, and the other half he might bequeath. This was acknowledged to be the law of the land at the time of Magna Charta, and was laid down as such under Charles I. 6 But this law,” says Blackstone, “is at present altered by imperceptible degrees, and the deceased inay now by will bequeath the whole of his goods and chattels; though we cannot trace out when first this alteration began.”
66 What. ever,” adds he,“ may have been the custom of later years in ma. ny parts of the kingdom, or hoivever it was introduced in dero. gation of the old law, the ancient method continued in use in the province of York, the principality of Wales, and the City of Lon. don, till very modern times : when, in order to favour the power of bequeathing, and to reduce the whole kingdom to the same
standard, three statutes have been provided; the one, 4 and 5 William and Mary, c. 2. explained by 2 and 3 Anne, c. 5. for the province of York; another, 7 and 8 William III. c. 38. for Wales; and a third, 11 Geo. I. c. 18. for London : whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estates by will; and the claims of the widow, children, and other relations, to the contrary, are totally barred.” It
here be proper to observe, as one of the many anomalies of our English system, that though a widow may thus be deprived, by the will of her husband, of all share in his personalty, even where he posa sesses no other property, and she had no kind of independent provision, yet that the claim of dower upon land remains in full force, and can only be barred by a public and voluntary act of the wife's during coverture, or by the acceptance of a settlement or jointure, in lieu of dower, at the time of marriage,---a practice become so frequent, by reason of the many conveniences to fami. lies attending it, that widows' thirds can at present seldom be claimed upon estates of any considerable value, The causes of this change in our laws, so important to the female world, it is not difficult to assign. In a rude and simple state of society, personal property, being of little value compared with real, would naturally attract but a small share of the notice of legislators; and accordingly, our laws respecting it are mostly of a later date than those which regulate the possession and inheritance of land: cone sequently they have been framed, not upon the narrow views of the feudal system, but upon more liberal principles, and such as allow a greater latitude to the particular disposing will of indivi. duals. The ancient regulation respecting the reasonable portions of the widow and children, militating against these freer priuci. ples, would soon be exposed to the attacks of innovators; and when we consider that the particular interest of men of the law in making speeific marriage articles necessary, would coincide with the general tendency of things, there is more room to wonder that. this venerable institution should have stood its ground so long, than that it should have given way at last. Upon an impartial consideration of the subject, however, it may, I think, be made to appear, that the change, as far as it respects widows, was both air extremely harsh and an inexpedient one; inasmuch as no equally eligible mode of providing for the satisfaction of their just claims either has been, or in many cases, perhaps, can be, substituted.
There would be less injury to women in the abolition of dower upon land; because a real estate, especially if entailed, is a sta. ble security for jointure, and one that can be given by the hus. band without imposing upon himself any inconvenient restrictions...therefore of him a settlement might always be properly de