NOTE 18.

MARRIAGE.

Or the nature and legal effect of the marriage contract a few words will here be said.

The Athenians were monogamists, and drew a distinction between wedlock and concubinage. Regular espousals were necessary to constitute wedlock, and give the rights of legitimacy to the children. Cohabitation without espousals was nothing better than concubinage.

The contract was made not (as with us) between the man and his intended wife, but between him and her guardian or prochein amy1. Women were incapable of entering into a contract, and therefore (whatever their age) they were required to be given away by such person as the law considered to be their guardian, as for instance, their father, brother, or other nearest relation.

It appears, that a husband might direct by will, that his widow should marry this or that person; as the father of Demosthenes did. Here we must understand, not that such direction was

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compulsory on the widow, but only that it superseded the necessity of further espousals.

No ceremony was necessary to bind the contract; the parties might proceed to live together immediately; but it was customary to give a marriage feast on the occasion, and to invite the friends and relations, not so much for the purpose of feasting, as to bear witness to the legality of the union.

If a woman had no property of her own by inheritance, (and she could have none, if she had a brother,) a marriage portion was usually given to her by the next of kin, by whom she was betrothed. To be married without a portion, if the relations had the means of giving one, was a disgrace either to her or to them; and might cause a doubt to be raised as to the nature of the connexion. The Athenians were liberal in these matters, and many a person would advance money out of his own purse, rather than suffer a friend's daughter to marry portionless.

The money thus given to a woman upon her marriage was paid to her husband, but was intended as a provision for her, and was usually secured to her by a mortgage of the husband's real estate, or (if he had no real estate) of his personal. The husband had the use and sole management of his wife's property, while they lived together; but, on a separation, he was bound to restore it to her guardian, and to pay eighteen

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per cent interest, so long as he kept it in his own hands. The interest so paid was called alimony or maintenance, as being the interest of that fund out of which the woman had a right to be maintained. The next of kin, to whom the money was restored, became the legal owner thereof, but was bound in honour to apply it to the woman's benefit, and to give it to her again upon a subsequent marriage. Such was the custom of the country; and custom had the force of an obligation.

After the death of the husband, if the wife had no son by him, she returned to the guardianship of her next of kin; if she had a son, the choice was given her, either to stay with him and live under his protection, or to return to her original family. In case she stayed with her son, he became her guardian and the owner of her property, (that is) he, if he was of full age, and his guardian in the mean time.

If the wife died before the husband, her property returned to her next of kin, unless she had children, in which case they took it according to the rules of inheritance.

Thus might property be settled upon a wife at Athens, much in the same sort of way as it may now in England. We however do more than the Athenians. We not only secure to her a provision after the husband's death, but give her a separate property during her husband's life

time, by vesting it in trustees for her use. The intervention of trustees is necessary, because by the common law of England the legal existence of the wife' is merged in that of the husband, she being under the same kind of incapacity as all women (married or single) were at Athens. Her personal estate goes to him, and of her real estate he has the management during her life. To prevent this marital right attaching upon her property, it is conveyed to trustees, who (though the legal owners) are obliged to pay the income into her hands; or, if they neglect, a court of equity will compel them. In other countries the same object is effected without the aid of trustees. By the civil law husband and wife are considered as distinct persons, and may have separate estates. In Scotland, though the husband becomes by marriage the curator of his wife, he may by the marriage contract renounce his jus mariti over her estate, and any person may convey an estate to the wife so that it shall not be subject to the husband's administration.

The marriage gift of the Athenians and the settlement made upon the wife in England must not be confounded with the dower of the English

1 Hence she is called feme covert, because she is under the husband's cover, guardianship, and protection; and her condition during marriage is termed coverture.

2 The word is derived from the old verb dow, to give; and is used in a more general sense by the poets; as by Shakspeare in the last scene of Henry 6, 1st part; and in the first scene of Lear,

law, which, like the terce (tertia) of the Scotch, signifies the widow's life estate in a third part of her husband's land. For this she was indebted to the gallantry of our ancestors, either Danes or Normans, who, at a time when personal estate was inconsiderable, thought it just that provision should be made for her out of the real or heritable estate. The widow thus endowed was called a dowager. Analogous to dower is the share in the personal estate, which our law gives to the widow when the husband dies intestate; a third part, if he has children; a moiety, if he has none. The practice now is, to make a special provision in the marriage settlement, that what is thereby given to the wife shall be taken in lieu of dower or thirds. In older times, in order that lands might not be encumbered with the charge of dower, which impeded their alienation, they used to bar the right of the wife by settling a jointure upon her; that is, by conveying an estate to her and her husband jointly, which became hers if she survived him. She was then called jointress.

If a woman at Athens inherited property, which might happen if she had no brothers, it was the business of the archon to see that she was duly married. The next of kin had a right to claim her hand, and, if there was any dispute as to the

"truth then be thy dower." The more popular form of the word, when used as synonymous with portion, or fortune brought by the wife to the husband, is dowry (dowery.)