(Vol. vi., pp. 485. 561.)
The popular error on the legal effect of marriage _en chemise_ is, I think,
noticed among other vulgar errors in law in a little book published some
twenty years ago under the name of _Westminster Hall_, to which a deceased
lawyer of eminence, then young at the bar, was a contributor. I believe the
opinion to be still extensively prevalent, and to be probably founded, not
exactly in total ignorance, but in a misconception, of the law. The text
writers inform us that "the husband is liable for the wife's debts,
_because_ he acquires an absolute interest in the personal estate of the
wife," &c. (Bacon's _Abridgment_, tit. "Baron and Feme.") Now an unlearned
person, who hears this doctrine, might reasonably conclude, that if his
bride has no estate at all, he will incur no liability; and the future
husband, more prudent than refined, might think it as well to notify to his
neighbours, by an unequivocal symbol, that he took no pecuniary benefit
with his wife, and therefore expected to be free from her pecuniary
burdens. In this, as in most other popular errors, there is found a
_substratum_ of reason.
With regard to the other vulgar error, noticed at the foot of MR. BROOKS'
communication (p. 561.), that "all children under the girdle at the time of
marriage are legitimate," the origin of it is more obvious. Every one knows
of the "legitimatio per subsequens matrimonium" of the canonists, and how
the barons assembled in parliament at Merton refused to engraft this law of
the Church on the jurisprudence of England. But it is not perhaps so well
known that, upon such a marriage the premature offspring of the bride and
bridegroom sometimes used to perform a part in the ceremony, and received
the nuptial benediction under the veil or mantle of the bride or the
pallium of the altar. Hence the children so legitimated are said to have
been called by the Germans _Mantelkinder_. The learning on this head is to
be found in Hommel's _Jurisprudentia Numismatibus Illustrata_ (Lipsiæ,
1763), pp. 214-218., where the reader will also find a pictorial
illustration of the ceremony from a codex of the _Novellæ_ in the library
of Christian Schwarz. The practice seems to have been borrowed from the
form of adopting children, noticed in the same work and in Ducange, verb.
"Pallium, _Pallio cooperire_;" and in Grimm's _Deut. Rechts Alterth._, p.
465.
Let me add a word on the famous negative given to the demand of the clergy
at Merton. No reason was assigned, or, at least, has been recorded, but a
general unwillingness to change the laws of England. As the same barons did
in fact consent to change them in other particulars, this can hardly have
been the reason. Sir W. Blackstone speaks of the consequent uncertainty of
heirship and discouragement of matrimony as among the causes of
rejection,--arguments of very questionable weight. Others (as Bishop Hurd,
in his _Dialogues_) have attributed the rejection to the constitutional
repugnance of the barons to the general principles of the canon and
imperial law, which the proposed change might have tended to introduce,--a
degree of forethought and a range of political vision for which I can
hardly give them credit, especially as the great legal authority of that
day, Bracton, has borrowed the best part of his celebrated Treatise from
the Corpus Juris. The most plausible motive which I have yet heard assigned
for this famous parliamentary negative on the bishops' bill at Merton, is
suggested (quod minimè reris!) in an Assistant Poor-Law Commissioner's
Report (vol. vi. of the 8vo. printed series), viz. that bastardy multiplied
the escheats which accrued to medieval lords of manors.