Rewriting marriage in late medieval Douai.

Late medieval Douai, one of the premier cities of the old Low Countries, is known to historians not only for its luxury cloth, its grain staple, and the wealth these industries produced, for its role in the tumultuous political history of the period, or even for its position in the early history of the Catholic Counter Reformation.(2) It is also known as the home of an unusual marital property regime, a system of rules which regulated property relations during marriage and governed succession.

In Douai, all property brought to a marriage or acquired thereafter was deposited in a conjugal fund; if a child was born of the marriage, either surviving spouse became the full heir of this property. In the terminology of Douai, such a marriage had created a ravestissement par sang. If no ravestissement existed, the surviving spouse and the nearest heirs of the deceased divided the conjugal fund. The ravestissement thus positioned the conjugal pair or the surviving spouse as the absolute manager and owner of conjugal goods. The husband represented this unit during his life -- he alone could use, manage, alienate and even destroy the property -- and his widow assumed these powers, unaltered, at his death.

A city of perhaps 15,000 to 20,000 people, located in what is now French Flanders, just south of Lille, Douai had grown to prominence in the twelfth century as one of the southern Low Countries' leading manufacturers of luxury woolens made of English wool, and it survived throughout the Middle Ages as an important center of manufacture and trade, a treasured possession of its successive medieval sovereigns -- Flemish counts, French monarchs, and then Burgundian dukes. Customs followed by citydwellers throughout the region to which it belonged, labeled by legal historians as the "Picard-Walloon," generally shared Douai's tendency to privilege the conjugal pair, but only in very few places was the rule as vigorously enforced or as loyally preserved as it was in Douai.3 In this city, the conjugal fund included all property, whether immovable or movable, whether carried into the marriage by husband or wife, whether inherited or earned thereafter by either spouse. Here, almost alone in the region, the effects of the ravestissement were compounded by the refusal to guarantee children inheritance rights to the estate of their parents (rights of devolution). Other provisions worked to intensify still further the relative power of the man or the woman who ran the typical Douaisien household. One set of rules allowed parents to make arbitrary distinctions among children when dividing up their estates: husbands or their widows could make wills which gave one child significantly more than another. Even if no will had been made, children could effectively be denied their equal share of the conjugal estate which custom would otherwise grant them, for parents could make gifts to a child at marriage or some other time before their death, and the gifts did not have to be returned to the estate before it was divided equally among all living children (no requirement of what the French call the rapport). Another rule specifically required that all children of the deceased, of whatever marriage, be included as equal heirs in intestate successions, so that the property of one spouse of the deceased could be used as legacies for the children of another spouse. Other provisions made parents the heirs of their children and, in general, made conjugality dominant over lineality or collaterality. Still other provisions assured that only the nearest kin inherited and blocked all property flows to more distant relations, so that children, for example, could not stand in for their parents in distribution of estates (no principle of representation).(4)

Elsewhere in Europe, customary laws of marital property and succession, whether restricted to the nobility or to commoners, were, in broad outline, very different. The South, for example, employed a "dotal" system reminiscent of the Roman. The property given a bride by her parents, which was treated as an advance on her inheritance, was contributed to the marriage only temporarily; she usually was considered to have retained ownership of it during the marriage, and it was returned to her (or her kin) at widowhood. In addition, the widow could receive an increase on her dot, or a life income for use during her widowhood.5 If the wife predeceased the husband, her properties usually passed to their children or were returned to her kin, although the widower was often provided usufruct on her dot. In effect, dowry systems made a clear division between the property of each spouse, a division maintained throughout the marriage until the properties passed to the couple's offspring.

The Picard-Walloon custom also differed in significant ways from that of its closer neighbors. In Flemish-speaking Flanders and much of the rest of the Low Countries, some form of 'community property law" was followed.(6) By this term, legal historians mean not just that a common fund was established by marriage, but that a community of equal heirs was created. In these systems, the surviving spouse split community goods with the heirs of the deceased: if the community included all property, the split was usually 50-50; if the community included only movables and after-acquired assets, the surviving spouse usually took all of these goods, but the immovables themselves were passed to heirs. In this system, devolution was the rule, the rights of the family of the deceased spouse superseded those of the surviving spouse, and heirs of the same degree inherited equally. Representation and rapport, both foreign to the Picard-Walloon custom, were central to the Flemish. Moreover, property could not ascend to the previous generation, as it did in Picardy-Wallonia, so that in Flanders proper, parents did not supersede siblings in inheritance.