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 DOWER

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DOWER

quired 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 Justin- ian 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, ac- cording to Maine (Ancient Law, 3rd Amer. ed., New York, 1SS7, 21S), 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 Black- stone, ''Commentaries on the Laws of England", II, 134, note p.) In an ordinance of King Philip Augustus of France (1214), and in the almost contem- poraneous 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 Eng- land. 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 be- came 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 mherited his land forthwith as though he had died a natural, instead of a legal, death. Assignment of dower in his land 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 Eng- lish 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 stat- ute. By a curious disability of old English law a Jewess born in England would be debarred of dower in land which her husband, he ha\'ing been an Eng- lishman of the same faith and becoming converted after marriage, should purchase, if she herself re- mained 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. Ill, 189), and at a less remote period it was said to be with life and liberty one of three things which "the law fav- oreth". 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 stat- ute, which according to the American commentator, Chancellor Kent, has been "with some modifications everj'where adopted as part of the municipal juris- prudence of the United States" (Commentaries on American Law, IV, 36). But while the marriage por- tion, dot, is. yet dower is not, known to the law of Louis- iana, and it has now been expressly abolished in some other States and in some territories. The instances of legislative modifications are numerous and im- portant.

Of dower {douaire) as it existed in the old French law no trace is to be found in the existing law of France. But lirought 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 in- curred 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 Institutiorts (6th ed., London, 1S93). 319, 336, 337; Mackeldey, Handbook of the Roman Law, tr. Dropsie (Philadelphia, 1883), §§ 572, 679; Glasson in La Grande Encycl., s. v. Douaire; Stephen, New Commentaries on the Laws of England (14th ed., London, 1903). 153. 155, 157, 159; Howard, Several special cases rm the laws against the further growth of ' Popery ' in Ireland {some cases on the English statute, etc.) (Dublin, 1775), 303; Park, A Trea- tise on the Law of Dower (Philadelphia, 1836), 249; Chabbe, Law of Real Property (Philadelphia, 1846), H, 85; Scribneh, A Treatise on the Law of Dower (2nd ed., Philadelphia, 1883), 14-58; Beauchamp, The Civil Code of the Province of Quebec (Montreal, 1905), §§ 1431, 1434, 1462, note to § 34.

Charles W. Sloane.

Dower, Religious (Lat. dos religiosa). — Because of its analogy with the dower that a woman brings to her husband when she marries, the name "religious dower" has been given to the simi of money or the

Eroperty that a religious woman, or nun (religwsa), rings, for her maintenance, into the convent where she desires to make her profession. It is not a question here of the more or less generous donations made by the young woman or her family either to the convent or to some of the good works that it carries on, nor of the amount paid in for the support of the postulant or novice until the time of her profession, but of a sum (usually a fixed one) set apart for the support of a religious who, by her profession, has become a member of the corammiity.

The custom of religious dower was not in vogue in the ancient Church. Introduced occasionally for nuns under solemn vows (the only vows that existed in an- cient times), it became gradually the rule in all commu- nities, particularly in congregations imder simple vows, these being now the most numerous. According to common ecclesiastical law, every convent had formerly to be provided, at the time of its foundation, with the resources necessary for the maintenance of a fixed nimiber of nuns, not less than twehe. These were re- ceived gratuitously and without dower and, although in no wise prohibited from presenting the monastery with a portion of their propertj^ were supported out of the revenue assigned to the monastery for this pur- pose. That is why the Council of Trent (Sess. XXV, c. iii, De regul.) established in this regard the following rule: " Let only such a number [of religious] be deter- mined, and henceforth maintained, as can be fittingly supported, either by the proper revenue [of each house] or by the customary alms" [in the case of men- dicant orders]. The determination of this nmnber belongs to the bishop, who, if there be occasion, will act together with the regular superior (Gregory XIII, Constitution, Deo sacris, 15 Dec, 1572). The Council of Trent does not speak of religious dower. However, from the end of the si.\teenth century the prescription relative to the fixed mmiber of religious had fallen into desuetude, and the dower came into use; and this for two reasons. The first was the acceptance of "super- numerary" religious, that is of a larger number than the resources of the convent warranted ; hence it was but just that the amount required for their nuiinte- nance should be demanded of them. The second rea- .son lay in the decrease of the resources of the ancient convents and in the absence of property for the many new houses foimded towards the end of the sixteenth century. An evidence of the simultaneous existence of these two causes is found in the general decree of the Sacred Congregation of Bishops and Regulars, 6