Dower

Dower

(Lat. doarium; Fr. douaire)

A provision for support during life accorded by law to a wife surviving her hustand. Being for the widow and being accorded by law, dower differs essentially from a conventional marriage portion such as the dos of the old Roman law, the French dot, or the English dowry. Dower is thought to have been suggested by the marriage gift which Tacitus found to be usual among the Germans. This gift he terms dos, but contrasts it with the dos of the Roman law, which was a gift on the part of the wife to the husband, while in Germany the gift was made by the husband to the wife (Larousse, Grand dictionnaire universel, Paris, 1870, s. v. Douaire). There was indeed in the Roman law what was termed donatio propter nuptias, a gift from the family of the husband, but this was only required if the dos were brought on the part of the wife. So too in the special instance of a widow (herself poor and undotated) of a husband rich at the time of his death, an ordinance of the Christian Emperor Justinian secured her the right to a part of her husband's property, of which no disposition of his could deprive her.

But the general establishment of the principle of dower in the customary law of Western Europe, according to Maine (Ancient Law, 3rd Amer. ed., New York, 1887, 218), is to be traced to the influence of the Church, and to be included perhaps among its most arduous triumphs. Dower is an outcome of the ecclesiastical practice of exacting from the husband at marriage a promise to endow his wife, a promise retained in form even now in the marriage ritual of the Established Church in England. (See Blackstone, "Commentaries on the Laws of England", II, 134, note p.) In an ordinance of King Philip Augustus of France (1214), and in the almost contemporaneous Magna Charta (1215), dower is referred to. But it seems to have already become customary law in Normandy, Sicily, and Naples, as well as in England. The object of both ordinance and charter was to regulate the amount of the dower where this was not the subject of voluntary arrangement, dower by English law consisting of a wife's life estate in one-third of the lands of the husband "of which any issue which she might have had might by possibility have been heir" (Blackstone, op. cit., 131).

During the pre-Reformation period, a man who became a monk and made his religious profession in England was deemed civilly dead, "dead in law" (Blackstone, op. cit., Bk. II, 121); consequently his heirs inherited his land forthwith as though he had died a natural, instead of a legal, death. Assignment of dower in his hand would nevertheless be postponed until the natural death of such a religious. For only by his wife's consent could a married man be legally professed in religion. And she was not allowed by her consent to exchange her husband for dower. After the Reformation and the enactment of the English statute of 11 and 12 William III, prohibiting "papists" from inheriting or purchasing lands, a Roman Catholic widow was not held to be debarred of dower, for dower accruing by operation of law was deemed to be not within the prohibitions of the statute. By a curious disability of old English law a Jewess born in England would be debarred of dower in land which her husband, he having been an Englishman of the same faith and becoming converted after marriage, should purchase, if she herself remained unconverted.

There is judicial authority of the year 1310 for the proposition that dower was favoured by law (Year Books of Edward II, London, 1905, Vol. III, 189), and at a less remote period it was said to be with life and liberty one of three things which "the law favoreth". But an English statute of the year 1833 has impaired the inviolability of dower by empowering husbands to cut off by deed or will their wives from dower. It was the law of dower unimpaired by statute, which according to the American commentator, Chancellor Kent, has been "with some modifications everywhere adopted as part of the municipal jurisprudence of the United States" (Commentaries on American Law, IV, 36). But while the marriage portion, dot, is, yet dower is not, known to the law of Louisiana, and it has now been expressly abolished in some other States and in some territories. The instances of legislative modifications are numerous and important.

Of dower (douaire) as it existed in the old French law no trace is to be found in the existing law of France. But brought to Canada from the mother country in pre-Revolutionary times, customary dower accruing by operation of law is yet recognized in the law of the former French Province of Quebec. The civil death which by English law seems to have applied to men only, might be by the French law incurred by women taking perpetual religious vows. A widow, therefore, thus entering into religion, would lose her dower, although in some regions she was allowed to retain a moderate income. (See Larousse, op. cit.) And now by the law of Quebec a widow joining certain religious orders of the province is deemed civilly dead and undoubtedly would suffer loss of dower.

Maine, Lectures on the Early History of Institutions (6th ed., London, 1893), 219, 336, 337; Mackeldy, Handbook of the Roman Law, tr. Dropsie (Philadelphia, 1883), §§ 572, 679; Glosson, in La Grande Encycl., s. v. Douaire; Stephen, New Commentaires on the Laws of England (14th ed., London, 1903), 153, 155, 157, 159; Howard, Several special cases on the laws against the further growth of 'Popery' in Ireland (some cases on the English statute, etc.) (Dublin, 1775), 303; Park, A Treatise on the Law of Dower (Philadelphia, 1836), 149; Crabbe, Treatise on the Law of Dower (2nd ed., Philadelphia, 1883), 14-58; Beauchamp, The Civil Code of the fProvince of Quebec (Montreal, 1905), §§ 1431, 1434, 1462, note to §34.

Charles W. Sloane