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Edited on Tue Nov-27-07 01:27 AM by happyslug
First, during the Middle Ages, the Church as more important to more people then the State. For this reason the church did and could revived up to four times the income as the State. The state only interest in "Marriage" was who owned Real Property (land) and thus who owned Military duty (Land Ownership and Military duty where tied together). The STATE courts thus determined who owned what land, and the military obligations that went with that ownership. For Example if a Woman married, her land came under the control of her Husband, for the simple reason HE HAD TO DO ANY MILITARY DUTY TIED IN WITH THE LAND. Furthermore, given that men needed someone to take care of their property while away on military duty, the wife had the right to 1/3 life estate (i.e. till her death) of his land. This was to balance the duties of land owners and their spouses (This is based on inheritance of Property, which generally went to only the spouse who was the heir to the previous owner. On the other hand, purchase of property was generally by BOTH spouses and it went to the surviving spouse by operation of law, as it does today in most cases).
All other property, Weapons, Armor, Tools, Farm Animals, Horses, Pets, Clothing, etc was given to one's heirs by the Church NOT the State during the Middle Ages. This tradition seems to last quite a long time, for example, Daniel Boone lived with his son in his old age, with his son getting all of Daniel Boone's surviving property (Daniel owned NO real property at that time). This was viewed as operation of law, Daniel Boone's son just ended up with the property and no one disputed it. By the time of Daniel Boone's death the Church had been relegated to a mediator in such disputes, and this ended most disputes.
It is only about the time of the US Civil War that disputes as to non-Real property inheritance started to be resolved by the Courts. It was about this time that the Courts found out that with adoption of the Concept of Freedom of Religion, someone had to step in a perform the functions of the old English Church Courts. With the Separation of Church and State, the Church could no longer decide cases, the Church could mediate if both members were of its religion, but even mediation as not possible if the dispute was between two people of different religions. Two factors push this adoption of the old English Church Court Jurisdiction by the Courts, first was the care of neglected children. This had long been a problem that old Church Courts handled in England, as long as you had a State Church OF a Church most people belonged to, such cases of Child Neglect could still be handled by the Church. As you started to have people who did NOT belong to any Church, the Churches could no longer perform this function, and the State Courts had to adopt the jurisdiction. Thus only about 1860 the State Courts started to rule on cases of Child neglect and mis-treatment. This moved the State Courts to decide even more matters (Through the movement started in the time of Queen Elizabeth I when Elizabeth had her Courts ORDER father's of illegitimate children to pay the mother's of such children money for the cost of care of such children, these were Common Pleas actions, but Criminal in Nature, i.e. the Attorney General brought against the father the CRIME of fathering a illegitimate child and if convicted forced to pay the mother support, through It was possible for men to compromise out of such action by denying paternity but paying the woman, George Washington did this to a woman in Bedford County Pa right after the Whiskey Rebellion).
The second push, was the raise of non-real property as a source of wealth. This again stared during the Renaissance, but gain great speed after 1800 with the growth of Corporations. Who inherited the Stock? The Stock was NOT real property so technically the NOT subject to Common Law Courts Jurisdiction, but it was often the main source of the wealth of a Deceased person. Thus this became more and more under the Jurisdiction of the Common Law Courts from 1500 onward (and increase after 1800). The Church Courts had always been viewed as a poor man's court, which kept a result of what was the decision, but rarely if ever kept a record of WHY that decision was made. The Common Law Courts took this weakness to say they was no record of WHY the decision was made and then made its own. This was complicated by the fact the Common Law Courts would require the NON-real property of the deceased by sold off to pay off any mortgage on the real property, even if the non-real property was to go to another heir than the real property (The real property generally went to the eldest son, the non-real property tended to be divided among all the children, a major difference between the common law and Church Courts).
Notice, the concern of the State changed over time. During the Middle Ages it was Military service. As England went from the Middle ages to the Renaissance, the Military Service was transferred to taxes and women's rights declined. At the same time the rights of the church's courts declined as England preferred to raise revenue then who received what non-real property. As non-real property started to equal and exceed Real property value, the State Courts took notice and started to decide such cases. The Church Courts never technically cross the Ocean, but till the 1800s the State courts did NOT want to take over what had been the Jurisdiction of the Church Courts so the Churches did most of what the old English Church Courts did but in the form of Mediation than litigation. Sooner or later you had a dispute that had to be decided, it could NOT be mediated and the property involved was enough to pay for lawyers to bring the case to court. This was when the state started to look into inheritance and who received what when.
Basically prior to about 1860, family disputes was a Church Matter NOT a State Court Matter (Through any attack within the family could raise to Criminal matter if it was an act if done to a non-family member could be a criminal matter, for example when a husband hit a wife, but fights among family members were viewed as belonging to the Church Courts, and where they was NO Church Court, a "Private Family Matter").
The only concern of the State Courts prior to 1860 was what duties a spouse had to a spouse. IF no valid marriage existed, no duty. If a valid marriage existed then a duty existed. This meant that if a jury count a marriage, all of the rights of a married couple kicked in (and the all male juries were noted for finding the marriage existed when the couple had lived together and she had used his last name). This more often then not affected men, but could affect women. The classic case was how Richard III was crowned King of England. His brother had married the mother of his children after she refused to go to bed with him without a wedding ring, but he had previously promised another women marriage if she slept with him. Thus the question, which had been his wife? Common Law Marriage did NOT mean Common law Divorce. Once Married you were married. Under the common law they was two types of common law Marriages (Three if you count Formal marriages). The First was when two people, single, announce to each other they were Married (Notice Sex was NOT needed for this type of marriage), the Second was a promise to marry in the future followed by Sexual intercourse. Given thant Richard III's Brother had made such a promise and had sex, he was married to that woman NOT the mother of his children for as a married man he could NOT marry again. This made his children illegitimate and Richard III his nearest legal heir. Thus Richard III had himself crown King of England at his brother's death (I will NOT go into what happened to his brother's two sons, that is NOT relevant to this discussion).
As England became more and more ruled by the Raising Middle Class (Even while over 90% of the population were working class or peasants) the above rule as to inheritance came to be more and more important. People wanted to know what someone was bringing into the family when their married into the family. Thus as to neared 1900 you see, more and more formality needed to have a valid Marriage. More so in Middle Class families then working class or peasants (Both of which as least till about the time of WWI had over 1/3 of their relationships in "informal" matters i.e. people lived together without formally getting married).
If you look at marriages since 1215, you will see Marriage is more concerned about who owns what, then how two people view each other. If you read the Story of Hitler's Family you will see that his father was born in Austria and even in highly Catholic Austria, Children were routinely recorded born by parish Priest. This is true even if the Couple had never been married (Most of this had to do with the Church performing a State function of recording births, but the church did it readily). A similar observation was made during the French Commune of 1871, most of the working class Couples were NOT married. As working class people income and property increased during the 20th Century, marriage rates increased, then dropped starting around the 1960s as income dropped. This again shows the state's greater concern for property issues then relationship issues. The state is concern about who owners what, not how two people are interacting EXCEPT if that interaction reflects property. Property is the main concern in how the State view Marriage and why the state have slowly made in more formal to get married.
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