German Customs — A Source of Common Law. was rare, and punished in the most severe and public manner. A second wedlock was forbidden. The wife looked upon her hus band as upon herself, without the desire or expectation of another marriage. And thus by good morals were sown the seeds of good laws. From this institution of marriage among the Germans, so pure and excellent for so barbarous a people, is plainly derived that union of husband and wife at common law, upon which depend almost all the legal rights, duties, and disabilities which either of them acquire by marriage. In the civil law, husband and wife were separate persons; at the common law, they are one and the same. The difficulty of procuring a divorce, the tenderness of the parental power, the severe punishment of adultery and other crimes against the married state (in which points the English law differs from the Roman), may readily be traced to the same source. Again, different as these two systems are in their regulations relating to landed property, in none are they more so than in those re lating to dower. In the civil law, dower sig nified the marriage portion which the wife brought to the husband; in the common law, the estate to which the wife is entitled on the death of the husband, out of such lands and tenements as he was seized of at any time during the coverture, and of which any of her children might by possibility have been heirs. Some have ascribed the intro duction of dower as it stands with us to the Normans; but Blackstone thinks that it is a Danish custom, being introduced into Den mark by Swein, the father of Canute the Great, out of gratitude td the Danish ladies, who ransomed him with their jewels when taken prisoner by the Vandals. We think, however, that its source can be traced still higher up in point of time. For with the Germans, the husband brought dower to the wife, not the wife to the husband. At firstit consisted of oxen, horses, helmets, and other articles of personal property in chief esteem and use among them. The manner
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of endowing was very similar to those two species still known in the English law, ad ostium ecclesia and ex assensu patris. Among wild and roving tribes personal property is always the subject of ownership before real; but as the country peoples, the lands are parcelled out and occupied, and thus very naturally dower, which was at first confined to the one, was afterwards extended to the other. No point in the antiquities of the law has been so learnedly searched or warmly dis puted, as the original constitution of par liament. As usual, parties have arrayed themselves against each other on the subject. It is, however, sufficiently agreed on all hands, that the English parliament sprung from the Saxon wittenagemote. But whence was the wittenagemote itself derived? Evi dently from German assemblies. The con stitution, the powers, and the methods of the two are so nearly identical as to leave no reasonable doubt upon the subject. It is well known that King Alfred, when he revised and remodelled the Saxon laws, divided England into counties, hundreds, and tithings. The division into tithings, Alfred may be said to have invented, but that into hundreds, and which naturally sug gested the other, he doubtless borrowed from Germany. The German States were divided into cantons and hundreds, and the only difference between the German and the English hundred is that the one was a mili tary and the other a civil establishment. Anciently, and even until after the time of Blackstone, wager of battle was a species of trial at common law. The origin of this mode of trial has been ascribed to the combat between David and Goliath. But we think we need not go back so far; for it is plainly de rived from a custom which prevailed among the Germans and other northern nations, and which sprang from their military spirit and ambitious turn of mind. The Germans were particular in their observance of auspices and lots, the flight of birds, and the neighing of horses. When they were at war with any
