OLD ENGLISH WIFE-PURCHASE YIELDS TO FREE MARRIAGE
[BIBLIOGRAPHICAL NOTE VI.--The leading sources for this chapter
are, of course, the ancient folk-laws, drawn up after the
wandering and settlement of the Teutonic peoples. Of these
the most complete and the most primitive are the old English
"codes," in Schmid's _Die Gesetze der Angelsachsen_ (Leipzig,
1858), until recently the best edition available; or in Thorpe's
_Ancient Laws and Institutes of England_ (8vo, 2 vols.; folio,
1 vol.; Record Commission, London, 1840), which, though not
so well edited, has the advantage of an English version of
the Anglo-Saxon texts. But Liebermann, in _Die Gesetze der
Angelsachsen_ (Halle, 1898-), is placing in the hands of
scholars a more complete and a thoroughly critical edition
which must supersede that of Schmid. For Germany the _Leges
barbarorum_ are contained in Walter's _Corpus juris germanici
antiqui_ (3 vols.; Berlin, 1824); and in the later and better
editions of the _Monumenta germaniae historica_, particularly
the _Leges burgundionum_, edited by L. R. De Salis (4to;
Hanover, 1892); the _Leges alamannorum_, edited by Karl Lehmann
(4to; Hanover, 1888); and the general collection of _Leges_,
edited by G. N. Pertz, H. Brunner, R. Sohm, and Karl Zeumer (5
vols., folio; Hanover, 1835-89). These laws are conveniently
grouped according to subject by Davoud-Oghlou, _Histoire de la
législation des anciens Germains_ (Berlin, 1845). Behrend, _Lex
salica_ (Berlin, 1874), has a good edition of the laws of the
Salian Franks. There are some passages of fundamental interest,
notably the celebrated c. 18, in Tacitus's _Germania_; and an
interesting proof of the surviving symbols of wife-purchase may
be found in Fredegarius, _Gregorii Turon. historia francorum
epitomata_ (Vol. IV of Guadet and Taranne's version of Gregory,
171-73, Paris, 1838; or in Vol. II of Giesebrecht's translation,
273-75, Leipzig, n. d.). An old English betrothal (_beweddung_)
ritual of surpassing interest is preserved in the collections
of Liebermann, Schmid, and Thorpe referred to; and the later
development of the German betrothal ceremony is illustrated
by the curious Swabian ritual of the twelfth century, first
published by Massmann in _Rheinisches Museum für Jurisprudenz_,
III (281 f.), as also in his _Fluchformularen_ (179); and later
in Friedberg's "Zur Geschichte der Eheschliessung," _ZKR._, I,
369, 370; in the same author's _Eheschliessung_ (26, 27); and in
Sohm's _Eheschliessung_ (319, 320).
The modern literature of early German and old English marriage
is already very large. Among the more important writings of
the eighteenth and early nineteenth centuries are Gundling,
_De emptione uxorum, dote et morgengaba_ (Leipzig, 1731);
Ayrer, _Dissertatio de jure connubiorum apud veteres germanos_
(Göttingen, 1738); Hofmann, _Handbuch des deutschen Eherechts_
(Jena, 1789); Böhmer, _Ueber die Ehegesetze im Zeitalter
Karl des Grossen und seiner nächsten Regierungsnachfolger_
(Göttingen, 1826-27); Liebetrut, _Die Ehe nach ihrer
geschichtlichen Entwickelung_ (Berlin, 1834); Bosse, _Das
Familienwesen, oder Forschungen über seine Natur, Geschichte und
Rechtsverhältnisse_ (1835); Richecour, _Essai sur l'histoire et
la législation des formes requises pour la validité du mariage_
(Paris, 1856); Smith, "De la famille chez les Burgondes,"
in _Mémoires lus à la Sorbonne_ (1864); and Eckhardt, "Das
Witthum oder Dotalitium und Vidualitium in ihrer historischen
Entwickelung," in _Zeitschrift für deutsches Recht_, X (437
ff.). But in the literature of recent years of first-rate
importance is Sohm's _Das Recht der Eheschliessung_ (Weimar,
1875), perhaps the most acute and able monograph ever written
on the subject; supplemented by his _Trauung und Verlobung_
(Weimar, 1876). The best extended treatise on the history of
the marriage form or contract is Friedberg's _Das Recht der
Eheschliessung_ (Leipzig, 1865). This was preceded by his "Zur
Geschichte der Eheschliessung," in _ZKR._, I, 362-91; III,
147-86 (Berlin and Tübingen, 1861-63); and followed, in his
controversy with Sohm on the character of the betrothal, by his
_Verlobung und Trauung_ (Leipzig, 1876). The Theories of Sohm
and others are examined by Habicht, _Altdeutsche Verlobung_
(Jena, 1879); and, from the standpoint of northern custom, by
Lehmann, _Verlobung und Hochzeit_ (Munich, 1882); and Beauchet,
_Mariage dans le droit islandais du moyen age_ (Paris, 1887).
In this connection may be read Schroeder, _Geschichte des
ehelichen Güterrechts in Deutschland_ (Stettin, 1863-74);
his _Rechtsgeschichte_ (2d ed., Leipzig, 1894); as also
Brunner's very able _Rechtsgeschichte_ (Leipzig, 1887); Ficker,
_Untersuchungen zur Rechtsgeschichte_ (Innsbruck, 1891-99);
Heusler, _Institutionen des deutschen Privatrechts_ (Leipzig,
1885-86); Zoepfl, _Deutsche Rechtsgeschichte_ (Braunschweig,
1871-72); Siegel, _Rechtsgeschichte_ (3d ed., Leipzig, 1895);
Lamprecht, _Deutsche Geschichte_ (Vol. I, Berlin, 1891); Klein,
_Das Eheverlöbniss_ (Strassburg, 1881); and Galy, _La famille
à l'époque mérovingienne_ (Paris, 1901). For many illustrative
particulars should be consulted Grimm's _Rechtsalterthümer_
(Göttingen, 1854); the great work of Weinhold, _Die deutschen
Frauen_ (Vienna, 1882); which may be read in connection with his
_Altnordisches Leben_ (Berlin, 1856). To supplement Weinhold's
works for the more general culture-history of woman in the
German family may be consulted Dahn, "Das Weib in altgerm. Recht
und Leben," in his _Bausteine_, VI (Berlin, 1884); Rullkoetter,
_Legal Position of Women among the Ancient Germans_ (Chicago,
1900); Strack, _Aus dem deutschen Frauenleben_ (Leipzig,
1873-74); Scherr, _Geschichte der deutschen Frauenwelt_ (3d ed.,
Leipzig, 1873); Bernhöft's lively _Frauenleben in der Vorzeit_
(Wismar, 1893); Backer, _Le droit de la femme dans l'antiquité:
son devoir au moyen âge_ (Paris, 1880); the quaint treatise of
Grupen, _De uxore theotisca_ (Göttingen, 1748); the paper of
Schmitt, _Die Schlüsselgewalt der Ehefrau nach deutschem Recht_
(Munich, 1893); and that of Reinsch, _Stellung und Leben der
deutschen Frau im Mittelalter_ (Berlin, 1882).
Further illustrations of domestic and social life are afforded
by the literature of "left-hand" marriages. Thus Klein's
short dissertation, entitled _Beiträge zur Lehre von der
morganatischen Ehe_ (Erlangen, 1897), traces the practice back
to ancient Frankish law. See also Culmann, _Morganatische Ehe
und Ursprung des Feudalismus_ (Strassburg, 1880); Zetzkius, _De
matrimonio ad morganaticam contracto, vulgo: von Vermählung
zur linken Hand_ (Regiomonti, 1692); the anonymous _Geschichte
morganatischer und legitimirter Fürsten- und Grafen-Ehen in
Deutschland_ (Halle, 1874), which gives a chronological account,
century by century, of particular "left-hand" marriages; and the
dissertations of Linckens, Riccius, and Höltzl von Sternstein.
Besides the controversial literature relating to the
so-called _droit de seigneur_ in feudal times, already cited
in Bibliographical Note II, there has been collected a mass
of custom and folk-lore concerning the alleged traces of
wife-purchase and wife-capture, and similar matters, much
of which will carry the reader beyond the period of the
present chapter, but which may serve to complete the picture
of mediæval private life. In this connection may be noted
Wackernagel, "Familienrecht und Familienleben der alten
Germanen," in _Süd-deutsches Taschenbuch_, 1846 (257 ff.);
Schincke, "Hochzeitsgebräuche der Germanen," in Ersch und
Gruber's _Encyklopädie_, II. Sect., T. 9 (166 ff.); Leber,
"Des coutumes et usages anciens relatifs aux mariages," in
his _Collection des meilleurs dissertations_, II (Paris,
1838); Freybe, _Altdeutsches Frauenlob_ (Leipzig, 1873);
Schütz, _Lobschrift auf die Weiber der alten Deutschen_
(Hamburg, 1776); Schulenburg, _Die Spuren des Brautraubes,
Brautkaufes und ähnlicher Verhältnisse in den französischen
Epen des Mittelalters_ (Rostock, 1894); Spirgatis, "Verlobung
und Vermählung im altfranzösischen volkstümlichen Epos,"
in _Wissenschaftliche Beiträge zum Jahresberichte des
Leibniz-Gymnasiums zu Berlin_, Ostern, 1894 (Berlin, 1894);
Krabbes, _Die Frau im altfranzösischen Karlsepos_ (Marburg,
1884); Bücher, _Die Frauenfrage im Mittelalter_ (Tübingen,
1882); Homeyer, _Ueber die Heimath nach altdeutschem Recht,
insbesondere über das Hantgemal_ (Berlin, 1852); Méril,
"Des formes du mariage et des usages populaires qui s'y
rattachaient surtout en France pendant le moyen age," in _Étude
sur quelques points d'archéologie_ (Paris and Leipzig,
1862); Bérenger-Ferraud, "Mariage et progéniture," in his
_Superstitions et survivances_, II (Paris, 1896); and especially
Beauchet's able monograph, _Étude historique sur les formes de
la célébration du mariage dans l'ancien droit français_ (Paris,
1883); Gengler, _De morgengaba secundum leges antiquissimas
germanorum_ (Bamberg, 1843); Spangenberg, _Exercitatio antiqua
doni germanorum matutini, quod vulgo morgengabam appellant_
(Göttingen, 1767); Napiersky, _Die Morgengabe des rigischen
Rechts_ (Dorpat, 1842); Golz, _De morgengaba germanorum_ (Halle,
_ca._ 1860); Fischel, _De conjugum jure germanico debitis_
(Berlin, n. d.). Similar observations have been made for other
parts of Europe. See, for example, Poggi, _Usi nuziali nel
centio della Sardegna_ (Sassari, 1894); Murra, _Usi e costumi
nuziali de Sardegna_: for the _Nozze de Cian-Sappa-Flandinet_
(Bergamo, 1894); Salmone-Marino, _Come se prepari la sposa; uso
nuziale dei contadini di Sicilia_ (Palermo, 1890); Pitre, _Usi
nuziali del popolo Siciliano_ (Palermo, 1878); _idem_, _Usi
natalizi, nuziali e funebri del popolo Siciliano_ (Palermo,
1879); Frati, _Costumanze e pompe nuziali bolognesi nel medio
evo_: for the _Nozze Cian-Sappa-Flandinet_ (Bergamo, 1894);
Reinsberg-Düringsfeld, "Lieben und Freien in Piemont," in
_Illustrirte Frauenzeitung_, June 7, 1875 (Berlin, 1875);
Sakellarios, _Die Sitten und Gebräuche der Hochzeit bei den
Neugriechen verglichen mit denen der alten Griechen_ (Halle,
1880); Gubernatis, _Storia comparata degli usi nuziali in Italia
e presso gli altri popoli Indo-Europei_ (2d ed., Milan, 1878);
and Gennari, _Degli usi de Padovani de' tempi di mezzo ne' loro
matrimonj_ (Venice, 1800).
On the controversy as to the meaning of _mund_ and its place in
the purchase contract, in connection with the views of Sohm,
Dahn, Brunner, Lehmann, Schroeder, and others, see Waitz,
"Ueber die Bedeutung des Mundium im deutschen Recht," in
_Sitzungsberichte der preuss. Akad._, 1886; and Kohler, "Die Ehe
mit und ohne Mundium," in _ZVR._, VI. This question, as well
as other matters, is also treated by Dargun, _Mutterrecht und
Raubehe_ (Breslau, 1883); Kraut, _Vormundschaft_ (Göttingen,
1835-59); and by Rive in his excellent _Vormundschaft im
Rechte der Germanen_ (Braunschweig, 1862). Scheurl's _Das
gemeine deutsche Eherecht_ (Erlangen, 1882), though relating
mainly to a later period, is of use for this chapter; as are
also Königswarter, _Histoire de l'organisation de la famille
en France_ (Paris, 1851); and Laboulaye's very rare book,
_Condition civile et politique des femmes_ (1843); Hofmann's
interesting monograph, _Ueber den Verlobungs- und Trauring_
(Vienna, 1870); Junius, _De annulo romanorum sponsalitio_
(Leipzig); and Müller, _De annulo pronubo, vulgo vom Jaworts-
oder Trauring, de modo computationis graduum, de osculo sancto_
(Jena, 1734).
The strong tendency of Roman legislation of the lower
(Christian) empire to re-establish the family authority and
place the wife in subjection is ably discussed by Meynial, "Le
mariage après les invasions," in _Nouv. rev. hist. de droit_,
XX, 514-31, 737-62; XXI, 117-48 (Paris, 1896-97); with this may
be read Zoepfl, _De tutela mulierum germanic_. (Heidelberg,
1828); and Stobbe, "Die Aufhebung der väterlichen Gewalt nach
dem Recht des Mittelalters," in his _Beiträge_ (Braunschweig,
1865). Koehne has investigated "Die geschlechtsverbindung der
Unfreien im französischen Recht," in Gierke's _Untersuchungen_,
XXII (Breslau, 1888); and the matrimonial relations of
the servile classes are also treated by Jastrow, _Zur
strafrechtlichen Stellung der Sklaven bei Deutschen und
Angelsachsen_, _ibid._, II (Breslau, 1878); Luchaire, _Manuel
des institutions françaises_, 203, 295, 301-3 (Paris, 1892);
Rambaud, _Histoire de la civilisation française_, I, 102,
154, 125, _passim_ (Paris, 1898); Mone, Bader, and Dambacker,
"Eherecht der Hörigen im 13.-16. Jahrhunderte," _Zeitschrift für
Geschichte des Oberrheins_, VII, 2 (1856); and in a paper "Von
Loslassung der unterthänigen Weibspersonen in der Oberlausitz
zum Verheurathen," in _Arbeiten einer Gesellschaft in der
Oberlausitz_, II, 118 ff. (1750).
For Anglo-Saxon marriage the best monograph is Young's
"Anglo-Saxon Family Law," in _Essays_ (Boston, 1876).
Very good papers also are Amira's _Erbenfolge und
Verwandtschafts-Gliederung nach den altniederdeutschen
Rechten_ (Munich, 1874); and Ashworth, _Das Witthum (Dower) im
englischen Recht_ (Frankfort, 1898). Opet, "Die erbrechtliche
Stellung der Weiber in der Zeit der Volksrechte," in Gierke's
_Untersuchungen_, XXV (Breslau, 1888), strongly combats the
commonly accepted theory that the Anglo-Saxon woman was
neglected in the law of inheritance; in this agreeing with
Turner, _History of the Manners, Landed Property, &c., of
the Anglo-Saxons_ (1805); and criticising Glasson, _Droit de
succession_ (Paris, 1886), which may be read with his _La
famille et la propriété chez les Germains_ (Orleans, 1885).
Henry Adams in _Historical Essays_ (New York, 1891) likewise
takes a very favorable view of the legal condition of the early
German married woman. Roeder, _Die Familie bei den Angelsachsen_
(Halle, 1899), has made good use of literary sources. Pollock
and Maitland, _History of English Law_ (Cambridge, 1895), give
a clear and concise sketch of old English matrimonial custom;
and there is an excellent article by Florence Buckstaff in
the _Annals of the American Academy_, IV, on "Married Woman's
Property in Anglo-Saxon and Anglo-Norman Law" (Philadelphia,
1894). Of service also are Wright, _History of Domestic Manners
and Sentiments in England during the Middle Ages_ (London,
1862); Thrupp, _The Anglo-Saxon Home_ (London, 1862); Esmein's
edition of Gide, _Étude sur la condition privée de la femme_
(Paris, 1885); Lingard, _History and Antiquities of the
Anglo-Saxon Church_ (London, 1845; 2d ed., London, n. d.);
Phillips, _Geschichte des angelsächsischen Rechts_ (Göttingen,
1825); _idem_, _Reichs- und Rechtsgeschichte seit der Ankunft
der Normannen_ (Berlin, 1827-28); Hodgetts, _Older England_
(London, 1884); Jeaffreson, _Brides and Bridals_ (London, 1872);
and Glasson, "La famille," in his _Histoire du droit et des
institutions de l'Angleterre_, I. For further illustration of
matrimonial law and custom read Dezert, _Les unions irrégulières
en Navarre_ (Caen, 1892); and Hanauer, "Coutumes matrimoniales
au moyen age," in _Mémoires de l'académie de Stanislas_ (Nancy,
1892).]
I. THE PRIMITIVE REAL CONTRACT OF SALE AND ITS MODIFICATIONS
It is not improbable, as already explained, that wife-capture may
have existed among our ancestors,[837] though some of the evidence
for its survival collected from the folk-laws by Dargun and others
may perhaps more rationally be regarded merely as proof of the
brutality and lawlessness incident to the transitional period of the
"barbarian invasion."[838] The testimony of the law-books, however,
points more clearly to the former existence of wife-purchase. With
the Old English, as well as among the other Teutonic peoples, at
the dawn of history marriage was a private transaction, taking the
form of a sale of the bride by the father or other legal guardian
to the bridegroom. The procedure consisted of two parts. First was
the _beweddung_, or betrothal; and second, the _gifta_, or actual
tradition of the bride at the nuptials.[839] The _beweddung_ was
a "real contract of sale,"[840] essential to which was one-sided
performance; that is, payment by the bridegroom of the _weotuma_
or _Witthum_, the price of the bride.[841] In ancient times the
person of the woman was doubtless the object of purchase; and
within the historical period woman, among most Teutonic peoples,
remained in perpetual tutelage.[842] When the guardianship of the
father or other male relative, as representative of the clan-group
or _Sippe_, ended, that of the husband began. But, however hard may
have been the lot of the married woman, manifestly her condition
was very different from that of a chattel. This fact is not wholly
inconsistent with wife-purchase; for, as already seen, a certain
liberty, even of choice, may be enjoyed by the woman where she is
legally the object of sale. It has given rise to a theory of the
betrothal which it is thought the records sustain. The _weotuma_,
it is contended, must be looked upon as the price of the _mund_, or
protectorship over the woman, which is transferred from the father
or legal guardian to the husband. This is the view now perhaps most
generally accepted, but it has by no means gone unchallenged.[843]
Ethically and historically, as suggested in the preceding chapter,
the rise of a legal distinction between the purchase of property
in the wife and the acquirement of authority over her is highly
important. But, practically, when the powers of the husband are
so great as they were among our ancestors, there can be little
difference in popular conception between possession of the _mund_
and ownership of the woman.[844] As a matter of fact, the old
English laws speak bluntly of "buying a maid;"[845] and in Germany
"to buy a wife" was a familiar phrase for marriage throughout the
Middle Ages.[846]
[837] BRUNNER, _Rechtsgeschichte_, I, 72, 73, and
the sources there cited. The former existence of wife-capture
among the Germans is also held by SIEGEL,
_Rechtsgeschichte_, 450; HEUSLER, _Institutionen_, II,
280; SCHULENBURG, _Die Spuren des Brautraubes_, 10 ff.:
BERNHÖFT, _Frauenleben_, 8 ff.; LAMPRECHT,
_Deutsche Geschichte_, 97 ff., 107 ff.; SEHLING
_Unterscheidung der Verlöbnisse_, 29; OPET, _Die
erbrechtliche Stellung der Weiber_, 16 ff.; COLBERG,
_Ueber das Ehehinderniss der Entführung_ (Leipzig, 1869), 25.
[838] DARGUN, _Mutterrecht und Raubehe_, 111-25,
critically examines these passages. The fact that a marriage
effected by rape or abduction is often treated as valid, even
when the purchase price is not paid, is especially urged as
evidence of the survival of customary wife-capture. Thus in
ÆTHELBERHT, 82, 83; ÆLF., 8; ÆTHELRED,
VI, 26, 39: SCHMID, _Gesetze_, 9, 75, 231, 301, a
penalty is exacted in such cases, though the marriage appears
to be valid. But is it not simpler to explain this on grounds
still familiar to all? The suggestion of the text seems to be
sustained by the materials collected by WEINHOLD,
_Deutsche Frauen_, I, 308-15. _Cf._ JEAFFRESON, _Brides
and Bridals_, I, 12-31.
[839] _Beweddunge_ is the Anglo-Saxon term, and it is so used in
the old English formulary of the tenth century: SCHMID,
_Gesetze_, Anhang, VI, 390. It means the act of "contracting" or
"pledging," associated with the verb _beweddian_, "to contract":
SCHMID, 535, 536. It has the same origin as the modern
"wed," "wedding," etc. On the _beweddung_ see SIEGEL,
_Deutsche Rechtsgeschichte_, 450 ff.
[840] In early German law the "real contract" is the only
contract recognized. There is no contract by mere convention,
no "consensual" contract. Originally two-sided fulfilment was
required. Thus, according to SOHM, _Eheschliessung_, 24
ff., in case of betrothal, payment of the price and tradition
of the bride went hand in hand. Later one-sided performance,
or even a formal act, was deemed sufficient, and through it
the _title_ was actually transferred; the purchaser thus
acquiring the "negative" as opposed to the "positive" rights of
property--the power to use and enjoy. _Cf._ HABICHT,
_Altdeutsche Verlobung_, 6, 7; LOENING, _Geschichte
des deutschen Kirchenrechts_, II, 577-79; YOUNG, in
_Essays_, 167; LEHMANN, _Verlobung und Hochzeit_,
77; FRIEDBERG, _Verlobung und Trauung_, 7, 8;
STOBBE, _Reuerecht und Vertragschluss nach älterem
deutschem Recht_ (Leipzig, 1876).
[841] Anglo-Saxon _weotuma_: ÆLFRED, _Ecc. Laws_, 12,
29: SCHMID, _Gesetze_, 58, 62. SCHROEDER uses
the term _Muntschatz_, which, however, is only found in Friesic
law: SOHM, _Eheschliessung_, 33, note. Some form of
_weotuma_ appears in many dialects: Old German _widemo_, giving
rise to _Witthum_; Longobardian _meta_; Burgundian _wittemon_;
Friesic _wetma_ (_wethma_, _weetma_); Alamannian _widem_:
SCHROEDER _Güterrecht_, I, 46, 47, 24; SCHMID,
_op. cit._, 675; GRIMM, _Rechtsalterthümer_, 422-24;
YOUNG, in _Essays_, 165; WEINHOLD, _Deutsche
Frauen_, I, 320, note, 336, _passim_; SCHROEDER,
_Rechtsgeschichte_, 291, note, 161. _Cf._ ECKHARDT,
"Das Witthum," in _Zeitsch. für deutsches Recht_, X, 437
ff.; HELLWALD, _Die mensch. Familie_, 315, 316;
SMITH, _La famille chez les Burgondes_, 5 ff.
[842] On the tutelage of woman in early Germanic law see
GRIMM, _Rechtsalterthümer_, 447 ff., 465; SOHM,
_Eheschliessung_, 22, 50 ff.; WEINHOLD, _Deutsche
Frauen_, I, 193 ff.; II, 27; GIDE, _Étude sur la
cond. privée de la femme_, 280 ff., 339; RIVE,
_Vormundschaft_, I, 218 ff.; KRAUT, _Vormundschaft_, I,
171-86; LEBER, _Des coutumes_, 22 ff.; REINSCH,
_Stellung und Leben der deutschen Frau_, 4 ff.; HABICHT,
_Altd. Verlobung_, 8 ff., 68; FRIEDBERG,
_Eheschliessung_, 17 ff., _passim_; SCHROEDER,
_Güterrecht_, I, 1 ff.; _idem_, _Rechtsgeschichte_, 64 ff.,
_passim_; BRUNNER, _Rechtsgeschichte_, I,75,89
ff.; DARGUN, _Mutterrecht und Raubehe_, 23 ff.;
KOHLER, "Die Ehe mit und ohne Mundium," _ZVR._, VI, 321
ff.; WAITZ, in _Sitzungsberichte der preuss. Akademie_,
1886, 375 ff.; BUCKSTAFF, in _Annals of Am. Acad._, IV,
233 ff.; STOBBE, "Die Aufhebung der väterlichen Gewalt
nach dem Recht des Mittelalters;" in _Beiträge_, 1-24, reviewing
and criticising KRAUT; ZOEPFL, (R.), _De tutela
mulierum germanic_. (Heidelberg, 1828); EMMINGHAUS,
_De praecipuis germ. fem._ (Jena, 1756); and ZOEPFL
(H.), _Deutsche Rechtsgeschichte_, III, 1-4. YOUNG,
"Anglo-Saxon Family Law," _Essays_, 148 ff., denies that _patria
potestas_ existed in German law; and a similar view is taken by
ADAMS, _Political Essays_, 31 ff.; but HEUSLER,
_Institutionen_, II, 275, takes the opposite view. _Cf._
SMITH, _La famille chez les Burgondes_, 13 ff.
FICKER, _Untersuchungen zur Rechtsgeschichte_, III, 401
ff., insists that the sex-tutelage (_Geschlechtsvormundschaft_)
did not exist under Frank law.
[843] That the betrothal is a contract relative to the _mund_
is stoutly maintained by DAHN, _Das Weib in altgerm.
Recht und Leben_, 4 ff., who absolutely rejects wife-purchase,
declaring such an idea to be "abominable and impossible"
("abscheulich und unmöglich"). This theory is also held by
KRAUT, _Vormundschaft_ I, 171; SCHROEDER,
_Güterrecht_, I, 27 ff., 38, 79; yet SCHROEDER,
_Rechtsgeschichte_, 68, 291 ff., regards the German marriage as
in form a purchase of the bride. RIVE, _Vormundschaft_,
I, 258 ff., _passim_, denies that the betrothal has any
relation to the _mund_, and rejects entirely the view that the
sale-marriage ever existed among the Germans. HABICHT,
_Altdeutsche Verlobung_, 8 ff., 12, admits that originally the
_mund_ was a "property right" and the wife a "thing," though in
the earliest written sources she appears as _Rechtssubject_.
SOHM, _Eheschliessung_, 22, regards the _Witthum_ as
the price of the _mund_; but in his _Trauung und Verlobung_,
15, 16, he drops this view and declares the betrothal to be a
contract to "give the bride in marriage," or, more directly, a
"Kauf der Jungfrau." FRIEDBERG, _Eheschliessung_, 17,
18, appears to hold that it was the _mund_ which was conveyed;
but elsewhere he seems to favor the opposite view for the early
period. See his _Verlobung und Trauung_, 7 ff.; _Lehrbuch_, 339;
and _Zur Geschichte_, 362 ff. Pollock and Maitland, _Hist. of
Eng. Law_, II, 362, declare that "whatever guesses we may make
about a remoter age, the 'bride-sale,' of which Tacitus had
heard, was evidently no sale of a chattel. It was very different
from the sale of a slave girl; it was a sale of the _mund_, the
protectorship over the woman." GIDE, _Étude sur la cond.
privée de la femme_, 196-215, 335 ff.; and HENRY ADAMS,
_Historical Essays_, 31, are decidedly of the same opinion.
BUCKSTAFF, in _Annals of Am. Acad._, IV, 234, doubts
whether the German woman was ever looked upon as a chattel; and
OPET, "Die erbrechtliche Stellung der Weiber in der Zeit
des Volksrechts," in GIERKE'S _Untersuchungen_, XXV,
takes a very favorable view of woman's right of inheritance.
On the other hand, the betrothal is regarded as originally an
actual sale of the bride by GLASSON, _Hist. du droit
et des inst. de l'Angleterre_, I, 116, 117; GROSSE,
_Die Formen der Familie_, 223, 234; SIEGEL,
_Rechtsgeschichte_, 450-52; WEINHOLD, _Deutsche_
_Frauen_, I, 320; HEUSLER, _Institutionen_, II, 279 ff.;
LOENING, _Geschichte des deutschen Kirchenrechts_, II,
578; HOFMANN, _Ueber den Verlobungs- und Trauring_, 849,
850; LEBER, _Des coutumes_, 22 ff.; LAMPRECHT,
_Deutsche Geschichte_, I, 104, 105; SEHLING,
_Unterscheidung der Verlöbnisse_, 32, 33; GRIMM,
_Rechtsalterthümer_, 420 ff.; DAVOUD-OGHLOU,
_Législation des anciens Germains_, I, xl-xli; HELLWALD,
_Die mensch. Familie_ (apparently), 315-18; DARGUN,
_Mutterrecht und Raubehe_, 24 ff.; and especially
BRUNNER, _Rechtsgeschichte_, I, 74 ff. LEHMANN,
_Verlobung und Hochzeit_, 7 ff., 78, 79, finds fainter traces of
the sale-marriage among the Scandinavians than among the North
Germans. _Kohler_, "Die Ehe mit und ohne Mundium," _ZVR._, VI,
321 ff., holds that marriage without _mund_ on the part of the
husband is the marriage of mother-right as opposed to the later
_Paternitätsrecht_. See also KOHLER, in _ZVR._, III,
354; and _Waitz_, "Ueber die Bedeutung des Mundium im deutschen
Recht," _Sitzungsberichte der preuss. Akad._, 1886, 375 ff., for
a discussion of the meaning and content of _mund_. In general,
_cf._ KÖNIGSWARTER, _Hist. de l'organisation de la
famille_, 121 ff.; LABOULAYE, _Condition des femmes_,
112 ff.; STRACK, _Aus dem deutschen Familienleben_, I,
17 ff.; BEAUCHET, _Mariage dans le droit islandais_, 3
ff., 12 ff.
[844] HABICHT, _Altdeutsche Verlobung_, 9, note, 68,
insists that there is no practical difference between the sale of
the _Vormundschaft_, or protection, and the sale of the bride.
See FICKER, _Untersuchungen zur Rechtsgeschichte_, III,
393-419, who rejects the view that marriage has the same origin
and character among all the German peoples.
[845] ÆTHELB., 77: SCHMID, _Gesetze_, 8, 9.
LIEBERMANN, 7, translates: "Wenn jemand eine Jungfrau
zur Ehe kauft." Another provision of this code reads: "If a
free man lies with a free man's wife, let him buy her with her
wergeld, and procure with his own property another woman and
bring her home to him (the wronged husband)": ÆTHELRED,
31: SCHMID, 4, 5. _Cf._ LIEBERMANN'S ed., 5.
See ROEDER, _Die Familie bei den Angelsachsen_, 15 ff.,
24 ff.
[846] BRUNNER, _Rechtsgeschichte_, I, 74: "Wife-purchase
is yet known to the earlier East Frisian sources, and it was
still practiced in Denmark in the fifteenth century. "Und wie im
Mittelalter die Redensart eine Frau zu kaufen vielfach verbreitet
war, so bezeichnet in Holland der Volksmund noch jetzt die Braut
als 'verkocht' (verkauft)."
Whatever its essential character, there is abundant evidence of the
widespread existence of sale-marriage among the Teutonic nations.
Tacitus, who was struck by a custom so much at variance with the
Roman practice of his day, has given in the eighteenth chapter of
the _Germania_ the earliest description of a _beweddung_. "The
wife," he says, "does not offer a _dos_ to the husband, but the
husband offers one to the wife. Parents and relatives are present;
they approve the gifts, not seeking those trifles which are pleasing
to women, nor those with which a newly wedded bride is adorned; but
oxen, a bridled horse, and a shield with sword and spear. For these
gifts the wife is obtained, and she, in turn, brings something of
arms to her husband. These they regard as the highest bond, the most
mysterious sacra, the gods of marriage."[847] In this passage the
essential character of the _weotuma_, that is the gifts, is clearly
recognized; and though the historian represents it as being paid to
the bride, it is probable that in this particular he is mistaken,
and that, in accordance with the early practice, it was really paid
to the guardian,[848] for it is very unlikely that the stage of the
dower had already been reached.
[847] "Dotem non uxor marito, sed uxori maritus offert. Intersunt
parentes ac propinqui; probant munera, non ad delicias muliebres
quaesita, nec quibus nova nupta comatur, sed boves et frenatum
equum et scutum cum framea gladioque. In haec munera uxor
accipitur, atque invicem ipsa armorum aliquid viro affert.
Hoc maximum vinculum, haec arcana sacra, hos conjugales deos
arbitrantur."--TACITUS, _Germania_, c. 18.
[848] SCHROEDER, _Güterrecht_, I, 24 ff., 82, 83,
has shown that this is probable; and such is the view of
GRIMM, _Rechtsalt._, 423, 424. ZOEPFL,
_Deutsche Rechtsgeschichte_, III, 4, believes Tacitus,
"vermengt unverkennbar die verschiedenen Gaben, welche nach den
Volksrechten des folgenden Zeitraumes unter der Bezeichnung
als _pretium_ und Morgengabe hervortreten, wovon die eine dem
Vater oder Vormund der Frau, und die andere dieser selbst
gebührte;" and the arms given by the bride to the bridegroom
he identifies with the later well-known ceremony of "girding"
the youth on reaching majority. _Cf._ on this passage also
HEUSLER, _Institutionen_, II, 277; THUDICUM,
_Der altdeutsche Staat_, 148, 186; LABOULAYE, _Cond.
des femmes_, 113; SIEGEL, _Deutsche Rechtsgeschichte_,
452; GIDE, _Étude sur la cond. privée de la femme_, 205
ff.; FICKER, _Untersuchungen zur Rechtsgeschichte_,
III, 416-19, 394, believes Tacitus here describes correctly the
_Vidumsehe_, the marriage in which the _Vidum_ or price came to
the woman herself.
In the earliest English codes the contract is found in its rudest
form. Besides _weotuma_, various other terms appear for the
bride-money. Such are _gyft_, _feoh_, _pretium_, and _pecunia pro
puella data_.[849] According to a provision of Æthelberht, already
referred to, "If a man buy a maiden with cattle (_ceapi_) let the
bargain stand, if it be without guile; but if there be guile, let
him bring her home again, and let his property be restored to
him."[850] Another law of the same king declares: "If a man carry
off a maiden by force, let him pay fifty shillings to the owner, and
afterwards buy of the owner the latter's consent [to the marriage].
If she be betrothed to another man in money (sceat), let him make
bot [to this bridegroom] with twenty shillings."[851]
[849] SCHROEDER, _Güterrecht_, I, 50; _idem_,
_Rechtsgeschichte_, 292; SOHM, _Trauung und Verlobung_,
15; LABOULAYE, _op. cit._, 113.
[850] ÆTHELB., 77; THORPE, _Ancient
Laws_, 22, 23, and n. 3; SCHMID, _Gesetze_, 8,
9. LIEBERMANN, 7, renders the first part of this
passage: "Wenn jemand eine Jungfrau [zur Ehe] kauft,
sei sie durch [Braut] Kaufgeld [giltig] erkauft, falls das
[Rechtsgeschäft] untrügerisch ist." _Cf. Poeniten. Theod._,
XVI, 29; THORPE, II, 11, or _Poeniten. Theod._, II, xii,
§ 34, in WASSERSCHLEBEN'S _Bussordnungen_, 216; with
_Confess. Ecgb._, § 20: THORPE, II, 147; or the same
in WASSERSCHLEBEN, 309. See also SCHROEDER,
_Güterrecht_, I, 51 n. 9.
[851] ÆTHELB., 82, 83; THORPE, I, 24, 25;
LIEBERMANN, 8; _cf._ SCHROEDER, _op. cit._, 51
n. 10.
Still, it will not be wise to accept too literally the apparent
statements of the early codes relative to the marriage relation,
for they are often brief and obscure, devoid of qualifying terms,
and must be construed in the light of other facts. Thus Opet's
researches seem to show clearly that in the historical period women
were not so much neglected in the ancient law of inheritance as has
usually been supposed.[852]
[852] OPET, _Die erbrechtliche Stellung der Weiber
in der Zeit der Volksrechte_, 82 ff. This monograph may
be compared with that of AMIRA, _Erbenfolge und
Verwandtschaftsgliederung nach dem altniederdeutschen Rechte_,
83, 84. ROEDER, _Die Familie bei den Angelsachsen_,
15 ff., takes a conservative position. In general on old
English marriage see PHILLIPS, _Geschichte des
angelsächs. Rechts_, 129-33; DAVOUD-OGHLOU, II, 355-60;
YOUNG, in _Essays_, 163 ff.; FRIEDBERG,
_Eheschliessung_, 33 ff.; LINGARD, _Anglo-Saxon Church_
(2d ed.), I, 6 ff.; TRAILL, _Social England_, I, 215,
216; GIDE, _Étude sur la cond. privée de la femme_,
237, 196 ff.; POLLOCK AND MAITLAND, _Hist. of Eng.
Law_, II, 362 ff.; BUCKSTAFF, in _Annals_, IV, 233;
LUDLOW, in _Dict. of Christ. Ant._, I, 203, 143. There
is also a good discussion by GLASSON, _Hist. du droit
et des inst. de l'Angleterre_, I, 104-33; an account of the
Anglo-Saxon bride in GRUPEN, _De uxore theotisca_,
221-55; interesting details in THRUPP, _The Anglo-Saxon
Home_, 19-76; WRIGHT, _Hist. of Doms. Manners and
Sentiments_, 53-56; TURNER, _Hist. of Manners and Landed
Property of Anglo-Saxons_, 108, 113-15; and JEAFFRESON,
_Brides and Bridals_, I, 32-45, who gives an interesting
discussion regarding the Anglo-Saxon woman, as a chattel subject
to sale, even in the historical period. "To these ancient
arrangements for the transference of women from their fathers
to their matrimonial suitors, and for protecting the property
in them against nefarious aggressors," he declares, "must be
referred the barbarous spirit in which the law still persists in
regarding a certain class of atrocious outrages on morality as
mere infringements of private right. We reflect with astonishment
on the conduct of our distant progenitors, who legalized traffic
in womankind, but we persevere, so far as law is concerned, in
dealing with the seducer as though his offence were nothing
graver than a violation of personal privileges, for which a
payment of money to one of the injured persons is the appropriate
penalty" (I, 42, 43).
Similar evidences of the sale-marriage are afforded by the South
German folk-laws.[853] Among the Salian Franks the bride-price
appears in form of the _arrha_, to be described presently, through
the payment to the guardian by the bridegroom of the "golden
shilling and the silver penny." In this form the _arrha_ was paid
by the representatives of Chlodwig, the Frankish king, at his
betrothal with Chlotilde, sister and ward of Gundobad, king of
the Burgundians.[854] Faint traces of wife-purchase survive in
the Bavarian[855] and Alamannian codes;[856] while in the _lex
saxonum_ marriage is simply described as _uxorem emere_, or "buying
a wife."[857] The sale-contract retains much of its primitive
character, in spite of ecclesiastical influences, in the West
Gothic, Burgundian, and Lombard codes. Among the West Goths the
betrothal was almost as binding as a marriage. The father or other
legal protector might contract his daughter or ward against her
will. If she disregards such a contract and marries another man,
both bride and bridegroom are "handed over to the power" of him
to whom she was betrothed by her father or guardian, "and any
relatives abetting the marriage shall pay a penalty of gold."[858]
The provisions of the other two codes last mentioned are conceived
in a similar spirit.[859] Moreover, even in the customs of the
Scandinavian North forms and phrases have survived which seem to
point unmistakably to the former existence of wife-purchase.[860]
[853] An exhaustive study of these laws is, of course, not
attempted. They are thoroughly exploited in the works of Sohm,
Brunner, Schroeder, Friedberg, Dargun, and others.
[854] "Legati offerentes solidum et denarium, ut mos erat
Francorum, eam partibus Chlodovei sponsant: placitum
ad praesens petentes, ut ipsam ad conjugium traderet
Chlodoveo."--FREDEGARIUS, _Greg. Turon. hist. epit._, c.
xviii: in GUADET AND TARANNE'S ed., IV, 172, 173; or in
GIESEBRECHT'S trans., II, 273-75. Compare SOHM,
_Eheschliessung_, 32 n. 21; SCHROEDER, _Güterrecht_, I,
55 n. 3, and authorities cited; MERIL, _Des formes_,
30; LEBER, _Des Coutumes_, 24; WEINHOLD,
_Deutsche Frauen_, I, 323; FRIEDBERG, _Eheschliessung_,
19 n. 7. The price of a maid is not fixed in the _lex salica_;
but in c. 44 the price of a widow is given (BEHREND,
58); and elsewhere the woman's _mund_ is fixed at 62-1/2 solidi.
FICKER, _Untersuchungen zur Rechtsgeschichte_, III, 400,
401, regards the _arrha_, not as a survival of the bride-price,
but as a symbol of mutual troth.
[855] SOHM, _op. cit._, 29 n. 15; FRIEDBERG,
_Eheschliessung_, 19. _Cf._, however, WEINHOLD, _op.
cit._, I, 323, who says that wife-purchase has disappeared
from the Bavarian and Alamannian laws. See PERTZ AND
BRUNNER'S ed., _Mon. germ. hist.: legum_, III, 183-496
(_Leges baiuwariorum_), 1-182 (_Leges alamannorum_).
[856] _Puella empta_ appears in the _Pactus alamannorum_,
3, 29. _Cf._ SCHROEDER, _Güterrecht_, I, 17 ff.;
WEINHOLD, _op. cit._, I, 323; FRIEDBERG, _op.
cit._, 19.
[857] "Lito regis liceat uxorem emere, ubicunqui voluerit. Sed
non liceat ullam foeminam vendere."--_Lex saxonum_, tit. 18:
WALTER, _Corpus juris germ._, I, 389. Tit. 6 fixes the
price at 300 solidi: WALTER, I, 386.
[858] _Lex wisigoth._, lib. iii, tit. i, 2: WALTER,
_Corpus juris germ._, I, 466; LUDLOW, in _Dict. Christ.
Ant._, I, 203. The bride-money is here called _pretium_,
elsewhere the betrothal is styled _mercatio_: BRUNNER,
_Rechtsgeschichte_, I, 74 n. 23. The whole of liber iii,
WALTER, I, 465-91, relates to marriage and allied
matters.
[859] _Lex burgundionum_, tits. 12, 34, 51, 52, 66, 69:
WALTER, I, 311, 320, 329, 330, 335, 336; for the
Lombards, _Edictum Rotharis_, c. 178 ff.: WALTER,
I, 710 ff., especially c. 182, which contains the form of
betrothal. Compare this with the later ritual given by
CANCIANI, II, 476, summarized by WEINHOLD, I,
341; LUDLOW, in _Dict. Christ. Ant._, I, 203. See also
_Liutprandi leges_, lib. ii, c. 7 ff., 88, 93, 99, 102, 106, 112,
115, 119, etc.: WALTER, I, 759 ff.
[860] LEHMANN, _Verlobung und Hochzeit_, 1 ff., 78, 79;
WEINHOLD, _Altdeutsches Leben_, 240. SCHROEDER,
_Rechtsgeschichte_, 287, denies that there are any sure traces of
wife-purchase in northern law.
During the period of the law-books, both in England and on the
continent, the amount of the bride-money was generally fixed by
custom or by statute. The price established seems usually to have
equaled the value of the _mund_ or that of the _wergeld_, which
depended upon the rank of the woman.[861] While the law thus fixed
the amount of the bride-money, doubtless to facilitate an easy
settlement of those cases in which marriages were illegally formed
without payment of the _weotuma_, it by no means follows, as
sometimes assumed, that its value was not ordinarily arranged by
private agreement, as in the early period.
[861] SCHROEDER, _op. cit._, 292; BRUNNER,
_Rechtsgeschichte_, 75; WEINHOLD, _Deutsche Frauen_,
I, 321 ff.; SOHM, _Eheschliessung_, 23, 24, who thinks
the fixing of a legal price of great importance, the purchase
of a maid being thus distinguished from that of a thing. The
bride-money is thus the nominal price of an _unschätzbares_
object; it admits no bargaining; but the explanation of
HABICHT, _Altdeutsche Verlobung_, 12, 13, given in
the text, is simpler and more probable. SCHROEDER,
_Güterrecht_, I, 11 ff., in connection with each code, gives
a mass of details relative to the violation of the _mund_ by
illegal marriage and the amount of the composition in each
case. _Cf._ LABOULAYE, _Cond. des femmes_, 113;
YOUNG, in _Essays_, 166; and ÆTHELBERHT, 31;
THORPE, I, 11, where the _wergeld_ is mentioned.
At a very early day it became customary--instead of the _weotuma_ to
pay to the guardian a small sum at the betrothal, called in general
_arrha_[862]--the _Hand-geld_ of the German writers--accompanied by
promises and sureties for the payment of the price of the bride at
the _gifta_, or nuptials. Strictly speaking, the _arrha_ was neither
a part payment nor even a symbolical payment of the _weotuma_; it
was an act by which the real obligation implied by the contract of
sale was engendered.[863] The practice of paying the _arrha_ instead
of the bride-money at the betrothal led to a change in the character
of the marriage contract. "In the time of the folk-laws--from the
sixth to the ninth century--we see among all the German tribes a
change take place: the witthum, that is the purchase price, is
no longer paid to the guardian, that is the seller, but to the
bride herself; so that the right of the guardian was practically
limited to the receipt of the handgeld, that is to a merely formal
fulfilment."[864] Thus, since the property of the wife was subject
to the husband's control during his lifetime, the _weotuma_ was
really transformed into a provision for the widow, payable only
after death from the husband's goods.[865] The _beweddung_ was still
a "real contract," but not a "contract of sale."[866]
[862] Latin _arrha_, _arra_, or _arrhabo_; Greek ἀρῥᾰβων;
Lombard _launichild_, _launegild_, perhaps the same as the
German _Lohngeld_. It means "earnest money," and was used
by the Romans in connection with bargains; also in general
with other real contracts. _Cf._ SMITH, _Dict.
Greek and Roman Ant._, I, 193; BINGHAM, _Orig.
Ecc._, VII, 311; SCHROEDER, _Rechtsgeschichte_, 290,
295; _idem_, _Güterrecht_, I, 39, 55 ff.; HEUSLER,
_Institutionen_, I, 80 ff.; SOHM, _Eheschliessung_, 28;
ZOEPFL, _Deutsche Rechtsgeschichte_, III, 8 ff., 12-14;
DAVOUD-OGHLOU, II, 59 n. 3; LUDLOW, in _Dict.
Christ. Ant._, I, 142-44. "Subarrare" is used in the ritual of
the Greek church for disposing in marriage: see the ritual in
BURN, _Parish Registers_, 141, 142.
[863] SOHM, _Eheschliessung_, 28-32, maintains
this view against SCHROEDER, _Güterrecht_, I, 39,
40, 55, and others, who regard the _arrha_ as a symbolical
payment--a _Scheinpreis_ or _symbolischer Muntschatz_. _Cf._
FRIEDBERG, _Eheschliessung_, 19; "Zur Gesch. der
Eheschliessung," _ZKR._, I, 364 ff.
[864] SOHM, _op. cit._, 33.
[865] _Ibid._
[866] _Ibid._, 34. But FRIEDBERG, _Verlobung und
Trauung_, 8-10, insists on the long survival of the sale-contract.
In this second stage, it has been thought, was the form of betrothal
among the old English in the days of Ine and Ælfred; but the
evidence is not entirely conclusive. Indeed, a provision of Ine,
relied upon by Schroeder to prove that the price had not been
paid at the betrothal, appears to show the opposite, according
to the reading of Liebermann. "If a man buy a woman (as a wife)
and the gifta or tradition take not place, let him (the woman's
guardian) give the money back (to the bridegroom), pay as much
more as penalty, and recompense the betrothal sureties (byrgean)
in as much as the breach of their pledge is worth."[867] Even with
this reading it is just possible that the money restored was the
_arrha_; and that betrothal sureties were required mainly to secure
damage in case the bride were not actually transferred. A law of
Ælfred likewise shows the practice of taking surety; but in this
case also it seems uncertain whether the pledges were given for
the payment of the bride-money; for damage on failure to surrender
the bride as a maid; or for both bride-price and damage combined,
though the last hypothesis seems the most probable. "If a betrothed
woman commit adultery, if she be of ceorlish degree, let a penalty
of sixty shillings be paid to the betrothal sureties, and let it
be in live-stock, things of value; and in it let no (unfree) man
be given." If the woman be worth six hundred or twelve hundred
shillings _wergeld_, the penalty is fixed at one hundred or one
hundred and twenty shillings respectively.[868] But another law of
Ælfred seems to reveal more clearly the second or transitional phase
in the history of the wedding contract; for the bride-price is paid
to the woman. It provides that in case a man sell his daughter into
servitude, and the purchaser "allow his son to cohabit with her, let
him (the son) marry her: and let him see that she have raiment, and
that which is the worth of her maidhood, that is the weotuma; let
him give her that."[869]
[867] INE, 31: LIEBERMANN, _Gesetze_, 103. The
phrase "and sio (seo) gyft (gift) forth ne cume" was rendered
by SCHROEDER, _Güterrecht_, I, 51 n. 8, followed by
SCHMID, _Gesetze_, 34, 35, note, "if the purchase price
be not paid"--a manifest error. _Cf._ THORPE, _Ancient
Laws_, I, 123.
[868] ÆLFRED, 18: LIEBERMANN, _Gesetze_, 58-61.
_Cf._ THORPE, _op. cit._, I,73; SCHMID, _op.
cit._, 81, 83; YOUNG, in _Essays_, 170.
[869] ÆLFRED, _Ecc. Laws_, 12: THORPE, _op.
cit._, I, 47. But ÆLFRED, _op. cit._, 29, seems to show
that the older practice of payment to the father also existed:
THORPE, I, 52.
The transition from this last-named form of contract to a third and
still more liberal one was easy and natural. Already in the tenth
century the _beweddung_ had become a merely "formal contract,"
the _wed_, _wette_, _Treugelöbniss_, _wadium_, or _fides facta_
of the early laws.[870] In this case there was not even one-sided
fulfilment through payment of the _arrha_, which in the form of
wine-money was merely _promised_ to the guardian;[871] but instead
the agreement or convention was accompanied by sureties to pay
the _weotuma_ to the bride, and by a solemn act which created the
obligation, and was therefore essential to the contract. Originally
this solemn act consisted in giving and taking the straw (_festuca_)
on the part of the bride and bridegroom. Instead of the straw,
other objects were sometimes employed, such as a piece of cloth,
an arrow, a number of gloves, and the like.[872] The oath or vow
was also substituted for the solemn act; and, particularly in the
later Middle Ages, the most popular symbol by which the contract
was closed was a "weakened" form of the oath, the _Handschlag_,
or hand-fasting, so famous in connection with the history of
English "secret" or "irregular" marriages.[873] It should be
noted that after the betrothal assumes the form of the _wed_, the
_weotuma_ ceases to be of real importance and becomes a gift to
the bride of little value; whereas now the object of real concern
in the convention is the _morgengifu_, or _morning-gift_.[874]
This was originally a small voluntary gift to the bride on the
morning following the nuptials; but as the _weotuma_ decreased the
morning-gift increased in importance. It became customary to grant
them both in the same instrument at the betrothal; so, at length,
they were merged and became a regular legal provision for the widow.
Such was the Lombard _quarta_[875] and the Frankish _tertia_;[876]
the Norman _douaire_, and the _dos ad ostium ecclesiae_ of
Glanville, the predecessors of the modern English dower.[877]
[870] The German _wette_ and Anglo-Saxon _wed_ are from the same
root as _beweddung_.
[871] SOHM, _Eheschliessung_, 30, 31, 317, note.
[872] _Ibid._, 34, 35; SCHROEDER, _Rechtsgeschichte_,
293, 294.
[873] On the oath and _Handschlag_, see SOHM,
_op. cit._, 47-50; on hand-fasting, FRIEDBERG,
_Eheschliessung_, 39 ff.
[874] On the morning-gift and dower see HEUSLER,
_Institutionen_, II, 374-79; THRUPP, _The Anglo-Saxon
Home_, 60; GUNDLING, _De emptione uxorum, dote et
morgengaba_ (Helmstedt, 1821); GENGLER, _Die Morgengaba_
(Bamberg, 1843); ECKHARDT, "Das Witthum," _Zeitschrift
für deutsches Recht_, X, 437 ff.; GRUPEN, _De uxore
theotisca_, 49-140; BRUNNER, "Die frankisch-romanische
Dos," _Berliner Sitzungsber._, XXIV, 545 ff.; SIEGEL,
_Deutsche Rechtsgeschichte_, 455-57; FRIEDBERG, "Zur
Geschichte," _ZKR._, I, 365, 366; SPIRGATIS, _Verlobung
und Vermählung_, 14; SCHROEDER, _Güterrecht_, I, 84-94
ZOEPFL, _Deutsche Rechtsgeschichte_, III, 19-21.
[875] SCHROEDER, _Güterrecht_, I, 84-89.
[876] _Ibid._, 89-94.
[877] GLANVILLE, Lib. VI, cap. 1; PHILLIPS,
_Englische Reichs- und Rechtsgeschichte_, II, 381. Compare
SCHROEDER, _op. cit._, I, 89; II, 24-67, _passim_;
YOUNG, in _Essays_, 174; LABOULAYE, _Cond. des
femmes_, 117 ff., 124 ff.; GRIMM, _Rechtsalt._, 441;
and especially the monograph of ASHWORTH, _Das Witthum
(Dower) im eng. Recht_, 9 ff., 18 ff.
This third phase of the _beweddung_ may be clearly discerned in
the English laws of the pre-Norman period, and seems to have been
the prevailing form after the beginning of the tenth century. The
following formulary, dating perhaps from the reign of Eadmund or
Æthelstan, besides its peculiar interest as being the earliest
English betrothal ritual extant, is an excellent example of the
formal contract, though some of its provisions are not clear:
"1. If a man desire to betroth a maiden or a widow, and it so
be agreeable to her and her friends, then it is right that the
bridegroom, according to the law of God, and according to the
customs of the world, first promise and give a 'wed' to those who
are her 'foresprecas,' that he desire her in such wise that he will
keep her, according to God's law, as a husband shall his wife: and
let his friends guarantee that.
"2. After that, it is to be known to whom the 'foster-laen'[878]
belongs: let the bridegroom again give a 'wed' for this: and let his
friends guarantee it.
"3. Then, after that, let the bridegroom declare what he will grant
her, in case she choose his will, and what he will grant her, if she
live longer than he.
"4. If it be so agreed, then it is right that she be entitled to
half the property, and to all, if they have children in common,
except she again choose a husband.[879]
"5. Let him confirm all that which he has promised with a 'wed;' and
let his friends guarantee that.
"6. If they then are agreed in everything, then let the kinsmen take
it in hand, and betroth their kinswoman to wife, and to a righteous
life, to him who desired her, and let him take possession of the
'bohr'[880] who has control of the 'wed.'
"7. But if a man desire to lead her out of the land, into another
thane's land, then it will be advisable for her that her friends
have an agreement that no wrong shall be done to her; and if she
commit a fault, that they may be nearest in the 'bot,' if she have
not whereof she can make 'bot.'"[881]
[878] The meaning of "foster-laen" is uncertain. SCHMID
wrongly identifies it with the _gyft_ of INE, 31, and
thinks it is the purchase price of the bride, that is, the
_weotuma_: _Gesetze_, 34, 35, note. THORPE regards it
also as the purchase price paid to the family of the bride:
_Anc. Laws_, I, 254, note. SCHROEDER, _Güterrecht_, I,
51 n. 13, believes it to be a provision for maintenance of the
children. But SOHM renders it _Weinkauf_, "drink-money,"
and this is probably right. It is a form or application of the
_arrha_, which is not now paid down, but, the contract being
formal, is promised to the guardian. The _arrha_ had customarily
been spent in treating the guests: _Eheschliessung_, 30, 31, 317,
note.
[879] "The language of this law seems to indicate that the
_legal_ endowment of the woman was one-third of the chattels, as
in INE, c. 57. By contract, however, before marriage,
the husband might increase this to one-half."--THORPE,
I, 255, note.
[880] The _bohr_ was the surety for fulfilment of the pledges.
[881] THORPE, _Anc. Laws_, I, 255, 257, who classes this
formulary with the laws of Eadmund. SCHMID leaves the
date undetermined, but thinks it may with as much probability be
ascribed to Eadmund or Æthelstan as any other king: _Gesetze_,
lxv, find _Anhang_, VI, 391, 393. _Cf._ POLLOCK AND
MAITLAND, _Hist. Eng. Law_, II, 367; and DIECKHOFF,
_Kirchliche Trauung_, 68 ff., who gives the text of this ritual.
The form of betrothal here described is that of the _wed_. The
_foster-laen_, or wine-money, a substitute for the _arrha_, is not
paid down, but it is merely promised to the guardian; while the
morning-gift--"in case she choose his will"--and the _weotuma_--"if
she live longer than he"--are the important elements, and these
belong to the bride.[882]
[882] SOHM, _Eheschliessung_, 155, 100 n. 60, 317.
SCHROEDER, _Güterrecht_, I, 53, 54, 96, reverses the
meaning of these passages; and holds that the phrase "in case she
choose his will" refers to the _weotuma_; and the phrase "if she
live longer than he," to the morning-gift. But see POLLOCK
AND MAITLAND, II, 363, who render the last clause by
"dower," and the first by "morning-gift."
Such was the form of _beweddung_ generally prevailing among the
Germanic nations about the time of the Norman Conquest. It had been
reached, as we have seen, only through several successive phases of
development, not sharply defined, but overlapping each other. In
the first stage, falling mainly or wholly within the prehistoric
era, the betrothal is a real contract, according to which there is
two-sided fulfilment. The payment of the price and the delivery
of the bride go hand in hand.[883] In the second stage, existing
at any rate from the time of Tacitus onward, the transaction is
still in form a real contract of sale, but there is only one-sided
fulfilment. The purchase price is paid to the guardian, but the
tradition of the bride is postponed. Next a solemn act through
payment of a nominal sum, or _arrha_, is deemed sufficient, the
payment of the actual price, or _weotuma_, being reserved for the
nuptials, when, often, it is paid, not to the guardian, but to the
bride, disclosing to us the genesis of the dower. The _beweddung_
is still a real contract, but not a contract of sale. Finally,
even one-sided fulfilment is no longer required. Nothing is paid
and nothing is transferred at the betrothal, which now consists of
promises and sureties, accompanied by a solemn act which engendered
the obligation. The real contract of sale has been transformed into
a merely formal contract, which provides for future fulfilment on
the part of both guardian and bridegroom.
Let us now turn to the second act in marriage, the _gifta_, or
actual "giving" of the bride to the husband. Here there is no lack
of ceremony and solemn phrases. Legally the _gifta_ is a distinct
transaction subsequent to the betrothal in the order of time.[884]
Very generally in German lands late autumn or early winter was the
favorite season for the celebration of marriages. So also, during
the waxing moon, a Tuesday or a Thursday was preferred for the
wedding day.[885] As among the Greeks, Romans, and Hindus,[886]
the nuptial ceremony appears to have consisted of three parts:
the solemn tradition, the joyous home-bringing of the bride, and
the festal initiation into the wedded life in the bridegroom's
house.[887] Of these the _gifta_, or tradition, is most important,
and it takes place in the home of the bride.[888] The father or
guardian by blood takes the lead in the proceedings, and is thus
the prototype of the modern priest or magistrate. The first act is
the solemn surrender of the bride together with the symbols of the
husband's power and protection: the sword, the hat, and mantle, or
other objects of similar significance. Then, on reception of the
bride, the bridegroom pays the _weotuma_, or delivers the charter
providing for the morning-gift or other allowance for the widow;
and, at the same time, makes symbolical assertion of the power which
he thus acquires over the wife: for example, by treading upon her
foot--a custom, says Sohm, which at later time finds a more refined
expression in the delivery of a shoe or slipper.[889] From this
arose the belief, still existing in some parts of Germany, that the
bride will rule the family, if before the altar, after the blessing
is pronounced by the priest, she places her foot upon that of the
bridegroom. "Who carries the slipper rules."[890]
[883] BRUNNER, _Rechtsgeschichte_, I, 74.
[884] This is the view of SOHM, _Trauung und
Verlobung_, 38-57; _Eheschliessung_, 89, 90, 100, 59 ff.; as
opposed to FRIEDBERG, _Verlobung and Trauung_, 21
ff.; _Eheschliessung_, 21, 22, who thinks that the _Trauung_
and _Verlobung_ usually coincided. _Cf._ SCHROEDER,
_Rechtsgeschichte_, 293; and DIECKHOFF, _Kirchliche
Trauung_, 67, who agrees with Sohm.
[885] For very interesting details relating to the German
_Trauung_ see WEINHOLD, _Deutsche Frauen_, II, 362-413.
The old English betrothal ceremonies are best described by
ROEDER, _Die Familie bei den Angelsachsen_, 15 ff.
[886] HAAS, in WEBER'S _Indische Studien_,
V, 327-29, 391-99. LEIST, _Alt-arisches Jus Gentium_,
133-71, gives a full discussion. _Cf._ above, chap. iv, pp. 171
ff.
[887] For the North Germans, LEHMANN, _Verlobung
und Hochzeit_, 80-88; WEINHOLD, _Altnordisches
Leben_, 243-52; and in general, _idem_, _Deutsche Frauen_,
368 ff., 406 ff., 399. The third part of the ceremony is the
_Bettbeschreitung_, or bedding of the newly married pair.
Normally this takes place in the bridegroom's house, as
according to northern custom: LEHMANN, 85-87; but
sometimes it appears to have taken place in the bride's home
before the home-bringing: WEINHOLD, I, 399 ff. _Cf._
FRIEDBERG, _Eheschliessung_, 22, 45, 64.
[888] The nuptials of widows, according to Salic law, were an
exception. These were, nominally, solemnized in the _mallum_,
or open court; but in practice this requirement may not always
have been observed. The exception seems to be an outgrowth of
the original restriction on second marriage: TACITUS,
_Germania_, c. 19; _Lex salica_, 44, _de reipus_:
BEHREND, 57, 58. _Cf._ SOHM, _Eheschliessung_,
62-64 nn. 16, 17, 18; SCHROEDER, _Güterrecht_, I,
56. FRIEDBERG, _op. cit._, 21; "Zur Geschichte,"
_ZKR._, I, 366, led astray by the statement of GRIMM,
_Rechtsalt._, 433, that _Gemahl_, "husband," is derived from
_mallum_, thinks the nuptials were usually celebrated in open
court. On the derivation see SOHM, _op. cit._, 62. In
general on the marriage of widows see also HABICHT,
_Altd. Verlobung_, 16-23; WEINHOLD, _Deutsche Frauen_,
II, 40 ff.; SCHROEDER, _Rechtsgeschichte_, 293, 296;
RIVE, _Vormundschaft_, I, 241; ZOEPFL,
_Deutsche Rechtsgeschichte_, III, 3, 10, 11; WEINHOLD,
"Reipus und Achasius," in HAUPT'S _Zeitschrift_, VII,
539 ff.; MÜLLENHOFF, "Glossary," in WAITZ, _Das
alte Recht_.
[889] SOHM, _op. cit._, 59-74.
[890] GRIMM, _op. cit._, 142, 155, 156;
WEINHOLD, _Deutsche Frauen_, I, 372. On the _gifta_
_cf._ SCHMID, _Gesetze_, 630; FRIEDBERG,
_Eheschliessung_, 21; WEINHOLD, _Altnordisches Leben_,
243 ff.
A point which requires special notice is the relative legal
importance of the _beweddung_ and the _gifta_. "Whether the marriage
begins with the betrothal, or with the delivery of the bride to
the bridegroom, or with their physical union, is one of the many
doubtful questions."[891] According to the view of Sohm, which is
defended with his usual acuteness, the betrothal of the early laws
is not, as commonly held, a _pactum de contrahendo_, a contract
for the future giving in marriage,[892] but the essential part of
the marriage itself. It is the only declaration of will, the only
ground of legitimate marriage, which is not created, but merely
consummated at the _gifta_.[893] Those who are bound by contract
are in respect to third parties practically husband and wife.[894]
The ground of the husband's title is the betrothal and not the
nuptials. Either party can bring action in the courts for breach
of the contract. The bridegroom cannot compel the delivery of the
bride, but he may sue for the recovery of the _weotuma_ and an
additional fine.[895] On the other hand, a breach of the contract
by the bridegroom is punished by forfeiture of the _weotuma_, and
possibly also by a fine.[896] The betrothal created the negative
effects of marriage--the obligation of connubial fidelity. The
bridegroom could maintain his title as a husband against all third
parties. The _gifta_ conveyed the positive rights, such as the power
of the husband over the person and property of the wife. It is the
completion of that which has gained its legal significance from the
betrothal.[897]
[891] POLLOCK AND MAITLAND, _Hist. of Eng._ Law, II,
363. Thus FRIEDBERG, _op. cit._, 21, 22, regards
"Verlobung, Trauung, und Beilager" as acts each of which is an
element in the "joining in marriage"--all three "eheschliessende
Vorgänge." _Cf._ SOHM, _Eheschliessung_, 88,
89; ZOEPFL, _Deutsche Rechtsgeschichte_, III,
5; SIEGEL, _Deutsche Rechtsgeschichte_, 455-57;
KLEIN, Das _Eheverlöbniss_, 130 ff., who reviews
the whole subject, citing authorities; and HANAUER,
_Coutumes matrimoniales_, 255 ff.
[892] The views as to the legal "content" of the betrothal are
summarized by HABICHT, _Altdeutsche Verlobung_, 30.
RIVE, _Vormundschaft_, I, 243, holds that betrothal was
not essential to a legal marriage; while PARDESSUS, _Loi
salique_ (Paris, 1843), regards it as legally requisite for a
marriage, which, however, actually began only with the tradition
of the bride.
[893] SOHM, _Trauung und Verlobung_, 139-47, _passim_;
_idem_, _Eheschliessung_, 75-106.
[894] This is illustrated by the survival of names originally
connected with the betrothal, but now with marriage itself:
the English _wed_, _wedding_, _wedded wife_, etc.; the German
_Gemahl_ and _Gemählin_; the French _époux_ and _épouse_, etc.
SOHM, _Eheschliessung_, 78 n. 6, 56 nn. 74 and 75;
_idem_, _Trauung und Verlobung_, 82, 83. But HABICHT,
_Altdeutsche Verlobung_, 65-67, believes this argument not
conclusive.
[895] _Poen. Theod._, XVI: THORPE, II, 11: "reddatur
ei pecunia quam pro ipsa dedit, et tertia pars addatur;" also
in HADDAN AND STUBBS, _Councils_, III, 201; and
WASSERSCHLEBEN, _Bussordnungen_, 216. The reading in
_Conf. Ecgb._ is, "reddatur ei pecunia, quam pro illa dederat,
et praeteria tertia pars hereditatis."--THORPE, II,
149; WASSERSCHLEBEN, 309. _Cf._ ÆLF., 18:
THORPE, I, 73; YOUNG, in _Essays_, 169.
[896] INE, 31: THORPE, I, 123. Compare
YOUNG, _loc. cit._, 168, 169.
[897] SOHM, _Eheschliessung_, 75-106; _idem_, _Trauung
und Verlobung_, 1-37, _passim_; YOUNG, _loc. cit._,
167-69.
The theory of Sohm has elicited much controversy.[898] It is clear
that the ancient betrothal was of greater legal significance than
the modern; but "on the other hand," to quote the judgment of
Pollock and Maitland, "it seems too much to say that the betrothal
was the marriage;" for the fulfilment of the contract could not be
enforced. Moreover, they justly urge, we cannot be certain that
betrothal by the "woman's father or other protector was essential
to a valid marriage; we have to reckon with the possibility--and
it is somewhat more than a possibility--of marriage by capture. If
the woman consented to the abduction, then, according to the theory
which the Christian church was gradually formulating, there would
be all the essentials of a valid marriage, the consent to be husband
and wife and the sexual union."[899]
[898] His _Eheschliessung_ (1875) called forth the _Verlobung
und Trauung_ (1876) of FRIEDBERG; also a critique
by MEYER, in the _Jenaer Lit. Ztg._, Jan., 1876,
501 ff. SOHM defends his position in _Trauung und
Verlobung_ (1876), 15 ff.; in his _Zur Trauungsfrage_, 11 ff.;
and in the _Strassburger Festgabe für Thöl_, 84, 98 n. 27. The
views of Sohm and others are examined by HABICHT,
_Altdeutsche Verlobung_ (1879), who concludes (75) that "Die
Verlobung ist nicht Beginn der Ehe, aber die rechtliche
Grundlage und nothwendige Voraussetzung derselben." The
_Trauung_ is "fulfilment of the betrothal" and "constitutes
the beginning of the marriage." LEHMANN, _Verlobung
und Hochzeit_ (1882), examines the problem from the standpoint
of northern law, and reaches the analogous result (124, 125)
that the "betrothal is a primary and independent, the nuptials
(_Hochzeit_) a secondary and dependent, act for joining in
marriage (_Eheschliessungsact_); the betrothal is the real
_Eheschliessungsact_, the nuptials an _Ehevollziehungsact_."
Sohm's view is adopted by SPIRGATIS, _Verlobung
und Vermählung_, 4 f.; it is attacked by SCHEURL,
_Kirchliches Eheschliessungsrecht_, 35 ff.; it is regarded
as extreme (_übertrieben_), though in spirit right, by
SCHUBERT, _Die evangelische Trauung_, 15 n. 2;
LOENING, _Gesch. d. deut. Kirchenrechts_, II, 581,
600 n. 1; both betrothal and tradition are essential to a
German marriage according to SEHLING, _Unterscheidung
der Verlöbnisse_, 30; while HEUSLER holds that
neither betrothal nor tradition, but the _copula carnalis_,
is the essential point: _Institutionen_, II, 284. _Cf._
KLEIN, _Das Eheverlöbniss_, 130-34; SCHROEDER,
_Rechtsgeschichte_, 296, 297, and authorities there cited; and
DIECKHOFF, _Kirchliche Trauung_, 66, 67, note, 97, who
favors and summarizes Sohm's view.
[899] POLLOCK AND MAITLAND, II, 368. _Cf._
DARGUN, _Mutterrecht und Raubehe_, 23 ff.
Besides the normal or full marriage of free men and women,
just described, the law-books recognize concubinage, so-called
"marriages" between the unfree, and unions between the free and
the unfree. The church, by giving them a sacramental sanction,
constantly strove to raise these irregular connections to the
rank of genuine wedlock. See especially KOEHNE, "Die
Geschlechtsverbindungen der Unfreien," in GIERKE'S
_Untersuchungen_, XXII, 1-23; and the literature on the subject
mentioned in the Bibliographical Note at the head of this chapter.
II. RISE OF FREE MARRIAGE: SELF-BEWEDDUNG AND SELF-GIFTA
Already in the eleventh century the forms of marriage were entering
upon another stage. It is possible, in the historical period, as
already seen, that a valid marriage could arise in abduction,
through subsequent payment of a fine; and it is not impossible
that side by side with wife-purchase the custom of free marriage
by simple agreement of the parties may have existed, as we have
found it existing among other peoples. But the practice could not
have been widely extended, and it may imply merely the indulgence
or silent consent of the legal protector.[900] Hitherto, so
far as the positive provisions of the law-books are concerned,
betrothal by the natural guardian or his representative[901] had
been essential to a valid contract. Originally the father could
betroth his daughter even against her will.[902] But, just as
the guardianship of the husband as respects the wife's property
gradually becomes transformed into a merely formal guardianship or
judicial control,[903] so the power of the father is first weakened
by granting the daughter a veto on the choice of a bridegroom; that
is, by making her consent necessary to a binding contract; and
then, presently, the relations of guardian and ward are entirely
transposed: self-betrothal by the daughter constitutes a valid
contract, while the father is allowed only a veto power. Naturally
it was the widow, in the case of a second marriage, who first
succeeded in emancipating herself from tutorial control. Among the
Germans in the time of Tacitus it was against popular usage, if
not illegal, for a widow to marry again.[904] But in the folk-laws
she appears on practically the same footing as a girl in this
regard;[905] and placed as she was "between two families," with
the "possibility of recourse to her own kindred" in case her first
husband's relatives as possessors of the _mund_ over her refused
their assent to a second marriage, she soon succeeded in freeing
herself entirely from such restraints.[906]
[900] That free marriage sometimes occurred is, of course, a
conjecture. But see DARGUN, _Mutterrecht und Raubehe_,
24 ff.; and KOHLER, in _ZVR._, VI, 321, for the alleged
survival of marriage _ohne Mundium_, which they assume to be
a survival of _Mutterrecht_. This assumption, of course, is
doubtful. _Cf._ UNGER, _Die Ehe_, 105, 106. See chap.
iv, above.
[901] "So long as marriage was a strictly civil [lay] ceremony,
as well as a purely civil engagement, the bride's father or
guardian performed the rite. It was he who took her by the neck
and shoulders, and gave her to the bridegroom. He gave the
symbolic shoe. In the Danish matrimonial rite of a subsequent
period the father's part was even more impressive. In language,
never in later times permitted to our English clergy, he declared
himself the actual maker of the marriage, when, on hand-fasting
the bride and groom, he said to the latter, 'I join this woman
to you in honour to be your wife, with a right to half of your
bed and keys, and to a third of your goods acquired or to
be acquired, according to the law of the land and St. Eric.
In the name of the Father, and of the Son, and of the Holy
Ghost.'"--JEAFFRESON, _Brides and Bridals_, I, 53.
_Cf._ on the Danish "hand-fasting" BRAND, _Popular
Antiquities_, II, 87, 88; BULLINGER, _Christen State of
Matrimonye_, 43.
[902] SOHM, _Eheschliessung_, 50; _cf._
LEHMANN, 13.
[903] "Processvormundschaft": SOHM, _op. cit._, 52.
[904] TACITUS, _Germania_, cc. 18, 19.
[905] These codes sometimes fixed a term within which a widow
may not marry, but a second marriage is treated as entirely
legal: _Lex salica_, c. 44: BEHREND, 57-59; _Lex
saxonum_, tit. vii, 3, 6: WALTER, _Corp. juris
germ._, I, 387; _Lex wisigothorum_, lib. iii, tit. 2, c. 1,
tit. 4, c. 2, 7: WALTER, I, 470, 471, 477, 478; _Lex
burgund._, tit. 24, c. 1, tit. 52: WALTER, I, 316,
330; _Edictum Rotharis_, cc. 178, 182, 188: WALTER,
I, 710, 711, 714; ÆTHELBERHT, 76; ÆTHELRED,
V, 21; CANUTE, 73, 74: SCHMID, _Gesetze_,
8, 224, 310, 312. _Cf._ HABICHT, _Altd. Verlobung_,
16 ff.; SOHM, _Eheschliessung_, 63, who differ as to
the interpretation of the much-disputed c. 44, _lex sal. de
reipus_; GRIMM, _Rechtsalt._, 452; SCHROEDER,
_Güterrecht_, I, 56, 57.
[906] HABICHT, _Altdeutsche Verlobung_, 26, 27. The
Saxon and Lombard laws allow the widow to appeal to her own
family in case her legal tutor--that is, her deceased husband's
family--will not consent: HABICHT, 17, 18. On the
freedom of the English widow see ROEDER, _Die Familie
bei den Angelsachsen_, 26 ff.
Canute forbids the marriage of a maiden against her will.[907]
If consent of father or guardian be not obtained, the betrothal
is still binding, but the daughter may be punished by loss of
inheritance. Thus early do we find the beginning of the private
marriages, which subsequently, under the names of "irregular" or
"clandestine," played so great a rôle in the history of matrimonial
law.
[907] CANUTE, II, 75: "and let no one compel either
woman or maiden to him whom she herself mislikes, nor for
money sell her; unless he is willing to give anything
voluntarily."--THORPE, I, 417. For the similar
provisions of Gothic and Lombard law see HABICHT, 23 ff.
The form of contract observed in self-betrothal is usually the
_wed_, sealed by the _Handschlag_ or hand-fasting. The "real
contract" through payment of the _arrha_ is, however, also retained;
but the _arrha_ is paid, not to the guardian, but to the bride, and
appears most frequently in the form of the ring, so well known to us
as the betrothal or "engagement" ring.[908] The ring had been used
by the Romans as _arrha_; and, like the bridal wreath and the bridal
veil, it seems to have been borrowed from them by the Germans.[909]
On the other hand, though there can be little doubt of the
historical connection of the betrothal ring and its duplicate,
the wedding ring, with the _arrha_,[910] whether or not it may be
regarded as a surviving symbol of the former servitude of the wife
must depend upon the acceptance or rejection of the view that the
actual sale-marriage, as opposed to the transfer of the _mund_, ever
existed among the Teutonic peoples. "A favorite theory," says Henry
Adams, "has insisted upon regarding the wedding ring as a badge of
servitude or a symbol of purchase. This idea cannot be maintained.
The wedding ring appears in its origin to have been merely the
earnest money which bound the contract of marriage between the
father and the husband, and was not the only symbol of the kind in
early custom, although no other survives in modern use. The ring
proved, not that marriage was a sale, but that marriage was a civil
contract executed according to the strict formalities of contracts
in the primitive law; it proved, not that women were deprived of
rights, but that their rights were secured to them in marriage by
the most careful provisions known to early society."[911] This is,
of course, a very emphatic statement of one side of the case; and
it should not be overlooked that the ring may stand as a symbol of
equitable contract; and yet the _arrha_, which the ring is, may mark
but the intermediate stage in the evolution of the betrothal from
the ancient process of actual sale. Nor does the connection of the
betrothal ring with the Roman and German _arrha_ necessarily exclude
other historical associations. Kulischer,[912] for instance, traces
its origin to wife-capture. Like the betrothal band or thread, which
sometimes appears with it or in its place, he believes that the
ring symbolizes the fetters with which the captive maid was bound.
But the evidence to support this theory is not conclusive.[913] The
practice of exchanging rings, of giving a ring to the bridegroom
as well as to the bride, did not arise until the later Middle
Ages.[914] In England the drinking of a cup of wine and the breaking
of a gold piece between the bride and bridegroom appear as forms
of the _arrha_.[915] Naturally after the _arrha_ is paid to the
bride it becomes confused with the _wed_, and soon all distinction
between the two forms of contract is lost. "Indeed at an early day
the arrha was called a wed, and it was legally indifferent whether
the oath, hand-fasting or other wed, or the ring or penny[916] were
used. Therefore the ring and penny are found in conjunction with the
glove; that is, with a real wed. And it is especially of interest
that the English language still calls marriage a wedding, and that
in England the ring (that is the arrha) is still used to wed the
bride."[917]
[908] SOHM, _Eheschliessung_, 54. Sohm's theory
of self-betrothal and self-_Trauung_ is criticised by
FRIEDBERG, _Verlobung und Trauung_, 9, 11 ff. In
general see SPIRGATIS, _Verlobung und Vermählung_,
6 ff.; HEUSLER, _Institutionen_, II, 286; and with
SOHM'S _Eheschliessung_, as below cited, compare his
_Zur Trauungsfrage_, 12 ff.
[909] The ring is mentioned as _arrha_ in _Dig._, xiv, tit.
iii, 5, § 15; xix, tit. i, 11, § 6: _Corpus juris civ._, I,
189, 244. _Arra_ appears in connection with _sponsalia_,
_Dig._, xxiii, tit. ii, 38: _Corpus juris civ._, I, 297.
_Cf._ SMITH, _Dict. Greek and Roman Ant._, I,
193; LUDLOW, in _Dict. Christ. Ant._, I, 142 ff.;
BABINGTON, _ibid._, II, 1807-9; MEYRICK,
_ibid._, 1105. Originally, we are told, the Roman lover presented
his betrothed a plain ring of iron, in later days of gold,
but did not receive one in exchange: FRIEDLÄNDER,
_Sittengeschichte_, I, 456; KULISCHER, in _ZFE._, X,
210. On the _annulus pronubus_ and its acceptance by the Germans
see JUNIUS, _De annulo romanorum_; MÜLLER, _De
annulo pronubo_; HOFMANN, _Verlobungs- und Trauring_,
829 ff.; SIEGEL, _Deutsche Rechtsgeschichte_, 451;
WEINHOLD, _Deutsche Frauen_, I, 343; BINGHAM,
_Orig. Ecc._, VII, 311, 313-16, 337, 339; HOWLETT,
in ANDREWS'S _Curious Church Customs_, 105, 107-9;
FRIEDBERG, _Eheschliessung_, 26 n. 3; SOHM,
_Eheschliessung_, 54, 55.
In the marriage ceremony of the Greek church two rings are used,
one of silver and one of gold; see ritual for espousals in the
eastern church in BURN, _Parish Registers_, 141, 142;
and in BINGHAM, _The Christian Marriage Ceremony_,
214 ff., 219; and _cf._ ZHISHMAN, _Das Eherecht der
orientalischen Kirche_, 691; and MEYRICK, in _Dict.
Christ. Ant._, II, 1105. The betrothal ring appears among the
Slavs: POST, _Familienrecht_, 236. In mediæval England
"a rush ring was supposed to possess some peculiar charm. Richard
Poore, bishop of Salisbury, in his _Constitutions_, anni 1217,
forbids the putting of _rush rings_, or any the like matter, on
women's fingers, in order to the debauching them more readily,"
and he insists that some people thought that "what was thus done
in jest was a real marriage": BURN, _op. cit._, 143.
_Cf._ DOUCE, _Illustrations of Shakespeare_, I, 315-19;
WOOD, _The Wedding Day_, 232, 233, 241. On the various
uses and symbolism of the ring among the Teutonic peoples read
the lecture of HODGETTS, _Older England_, 125-57; and
a valuable general treatise on the ring is JONES'S
_Finger Ring Lore_ (London, 1890). TEGG, _The Knot
Tied_, 309-37, has two chapters on the marriage ring; throughout
WOOD'S _The Wedding Day in all Ages and Countries_
much information on the subject will be found; and there is an
interesting passage in SWINBURNE, _Of Spousals_, 207-9,
quoted below, with other references, chap. vii, sec. 1.
The kiss at betrothal appears to have been borrowed by the
Christians from older pagan custom, and it was first given
legal importance by Constantine. If the kiss were given, he
provided that, in case one of the parties died before the
nuptials, the other party was entitled to inherit half the
espousal donations: _Cod. Theod._, lib. iii, tit. 5, leg. 5;
_Cod. Just._, lib. v, tit. 3, leg. 16: _Corpus juris civ._, II,
194. TERTULLIAN, _On the Veiling of Virgins_, chap. 11:
_Ante-Nicene Faths._, IV, 34, mentions the betrothal kiss as a
heathen custom. _Cf._ VENABLES, in _Dict. Christ. Ant._,
II, 905, 906; BINGHAM, _Orig. Ecc._, VII, 316; V, 75;
WEINHOLD, _Deutsche Frauen_, I, 343, 344. In England
the priest joined in the ceremony of kissing at the nuptials.
"In the Articles of Visitation in the diocese of London in 1554
is the following, 'Item, whether there be any that refuseth
to kysse the Prieste at the solempnization of matrimony, or
use any such lyke ceremonies heretofore used & observed in the
Churche'": BURN, _op. cit._, 143; _cf._ DOUCE,
_Illustrations of Shakespeare_, I, 112, 403; WOOD, _The
Wedding Day_, Index.
[910] See especially the careful monograph of HOFMANN,
_Ueber den Verlobungs- und Trauring_ (Vienna, 1870); and compare
FRIEDBERG, "Zur Geschichte der Eheschliessung,"
_ZKR._, I, 370 n. 34, 372 n. 41; SPIRGATIS, _Verlobung
und Vermählung_, 16, 17; THRUPP, _The Anglo-Saxon
Home_, 48 n. 50. Dogmatic writers, of course, see in the ring
an alleged Christian symbolism: _cf._ BRISSONIUS,
_De ritu nuptiarum_, 3 ff.; KLEE, _Die Ehe_, 127-29;
GÖSCHL, _Darstellung der kirchlich-christlichen
Ehegesetze_, 183 ff.; DIECKHOFF, _Die kirch. Trauung_,
28, 29.
[911] ADAMS, "Primitive Rights of Women," _Hist.
Essays_, 35.
[912] KULISCHER, "Intercommunale Ehe durch Raub und
Kauf," _ZFE._, X, 208-10.
[913] The proof consists in the interpretation of the supposed
symbolism. Thus the German lover, in early times, placed upon the
bride's finger a ring made of a twig plucked from a tree upon his
own land, the bride thus being "symbolically bound to the new
locality": UNGER, _Die Ehe_, 106. The thread or band is
interpreted as the bond of the captive; and Kulischer gives the
following illustration from northern custom:
"Komm, komm Maria lieb, und reich mir deine Hand,
Hier hast du das Ringelein und um den Arm das Band,"
runs a Swedish rhyme. In an Upland dance, the maiden sings:
"Und willst mich schliessen an's Herz dein,
Sollst mir zuvor geben ein Ringelein."
To which the young man replies:
"Hier hast du Ring und Verlobungsband,
Du sollst mich nicht betrügen."
Sometimes these symbols are brought into connection with the
sword--also, it is assumed, a survival of violence. Thus in an
Anglo-Saxon picture of the eighth century the bridegroom reaches
to the bride the ring upon a sword or staff: KULISCHER, 209; _cf._
WEINHOLD, _Deutsche Frauen_, I, 241, 242.
[914] WEINHOLD, _op. cit._, 343; SCHROEDER,
_Rechtsgeschichte_, 700, note; SIEGEL, _Deutsche
Rechtsgeschichte_, 453, who ascribes the practice to the
imitation of the court manners. Even now in the English
ceremonial only the bride receives a ring, consistently with its
origin in the _arrha_. _Cf._ FRIEDBERG, _op. cit._, 38,
notes.
[915] FRIEDBERG, _op. cit._, 42, 43; SOHM,
_Eheschliessung_, 54; _cf._ ROEDER, _Die Familie bei den
Angelsachsen_, 30 ff.
[916] That is, forms of the _arrha_.
[917] SOHM, _Eheschliessung_, 56; _cf._ MAX
MÜLLER, _Essays_, II, 251.
Simultaneously with the rise of self-betrothal, the bride gained
also the right of self-_gifta_. The parties might conduct the
ceremony themselves.[918] But in place of the natural guardian,
who originally possessed the sole legal right to officiate at the
tradition of the bride, appears often a "chosen guardian," selected
by the bride or by the betrothed couple. The person thus selected
may be the father or other relative of the bride, or any third
person whatever.[919] Moreover, in the marriage rituals of the
eleventh century[920] an _orator_ or _Fürsprecher_ appears, who acts
as an "assistant" to the natural guardian, dictating the solemn
phrases of the ritual and guiding the whole proceeding. Friedberg
regards the orator as the predecessor of the priest, and thus,
of course, of the civil magistrate as conductor of the nuptial
ceremony.[921] But Sohm has shown that the functions of the priest
or magistrate grew out of those of the "chosen guardian," and that
the "_Trauung_ by a _Fürsprecher_ is in itself a contradiction." The
latter is "never an actor, but always an aid to the actor. He has in
truth only to speak, nothing to do."[922] While thus theoretically
there is a great difference between the orator and the chosen
guardian, and both could, and probably did, for a time participate
in the same ceremony, still the practical result is in accordance
with the view of Friedberg. For if, as Sohm has shown, the motive
for the creation of the institution of orator was the fact that the
elaborate phrases of the old rituals were rapidly passing from the
memories of the people, and it was necessary to call in a lawyer
or other person skilled therein to assist the parties,[923] it is
certain that the chosen guardian, whether layman or priest, soon
satisfied this necessity, and ultimately inherited the functions of
the orator.[924]
[918] FRIEDBERG, _op. cit._, 25.
[919] SOHM, _op. cit._, 67 ff.
[920] _Ibid._, 67, and the Italian ritual of the eleventh century
in _Anhang_, II, 318, 319.
[921] FRIEDBERG, _op. cit._, 25 ff., 93 ff., 62.
[922] SOHM, _op. cit._, 71 ff., 166 n. 31. The
_Fürsprecher_ or _orator_ here mentioned, in accordance with the
view of Sohm, must not be confused with the _forespreca_ of the
old English formulary above quoted; the latter was the guardian
himself or a representative--a _Processvormund_: SOHM,
72.
[923] SOHM, _op. cit._, 67.
[924] SOHM, _ibid._, 166 n. 31, concedes this.
From about the beginning of the thirteenth century self-_gifta_ was
the only form of nuptials; and an important result of the custom
was the gradual omission of the solemn symbols, such as the giving
of the sword, hat, or mantle, indicative of the transfer of the
powers of guardianship. The tradition of the bride was no longer a
real tradition. The _gifta_ had become a simple oral declaration of
union.[925] Besides this modification of the ceremony is another,
both of which have been retained to our own times. "We often find
that the chosen guardian not only gives the bride to the bridegroom,
but likewise the bridegroom to the bride; because, in reality, he
occupies the same position in regard to each, that is a position
implying no power."[926] Thus the marriage is no longer a surrender
of the power of the guardian and a transfer of the same to the
bridegroom, but only the expression of a mutual gift.[927]
[925] A _Zusammensprechen_: SOHM, _op. cit._, 73.
[926] _Ibid._
[927] A _Zusammengeben_: _ibid._
Self-_gifta_ and the practice of choosing a third party to assist
the bride has an important bearing, as already intimated, on
the development of the functions of the clergy in the marriage
celebration. But before discussing this point it is desirable to
notice another fact essential for a proper understanding of the
present forms of solemnization. From the eleventh century onward it
became customary in Europe to repeat the ceremony of betrothal, or
"spousals," at the nuptials. The rituals which have been preserved
are divided into two parts. "The first part contains a formal
contract of betrothal with the guardian (_Vogt_) of the bride in the
form of a wed. The second part contains the _Trauung_ through the
solemn surrender of the bride by the guardian."[928] This remarkable
dualism is the most striking feature of the present marriage service
of the English church,[929] which is derived through the liturgies
of Elizabeth and Edward VI.[930] from the most ancient manuals,
particularly those of Hereford, Durham, Sarum, and York. The
betrothal comes first, and it is always a contract in words of the
future tense, corresponding to the _sponsalia per verba de futuro_
of the canonists, which will again be referred to. In the York
service, for example, the priest says to the man: "Wylt thou have
this woman to thy wyfe?" and to the woman: "Wylt thou have this man
to thy husbande?" Each party answers: "I wyll." Then takes place
the solemn tradition, or giving of the bride to the bridegroom, who
says, in words of the present tense: "Here I take thee N. to my
wedded wyfe;" and the woman responds in the same formula: "Here I
take thee N. to my wedded husbande."[931]
[928] _Ibid._, 100 ff.
[929] See the ritual in BINGHAM, _The Christian Marriage
Ceremony_, 163, 164; TEGG, _The Knot Tied_, 10 ff.;
MOORE, _How to Be Married_, 27 ff.
"This first part of the office was anciently termed the
espousals, which took place some time before the actual
celebration of marriage. The espousals consisted in a mutual
promise of marriage which was made by the man and woman
before the bishop or presbyter and several witnesses; after
which articles of agreement of marriage (called _tabulae
matrimoniales_), which are mentioned by Augustine, were signed
by both persons. After this the man delivered to the woman the
ring and other gifts, an action which was called _subarrhation_.
In the later ages the espousals have always been performed
at the same time as the office of matrimony, both in the
western and eastern churches; and it has long been customary
for the ring to be delivered to the woman after the contract
has been made, which has always been in the actual office of
matrimony."--PALMER, _Origines liturgicae_ (1839);
quoted also by JEAFFRESON, _Brides and Bridals_, I, 68,
who in his chapter on "Espousals" (_op. cit._, I, 60-87) gives
much information relating to ancient betrothal customs. _Cf._
BRAND, _Popular Antiquities_, II, 87-98 (betrothal
customs).
[930] _Liturgies of Edward VI._, 128, 129; _Liturgies of
Elizabeth_, 218, 219.
But the repetition of the betrothal is of no legal significance,
save as a guaranty of the existence of a contract before the actual
union. It is a "declaratory" act, a mere confession of betrothal.
As a result of the repetition there soon arises an entire confusion
in the symbols. In a Suabian ritual of the twelfth century the
guardian delivers to the bridegroom "not only the sword, hat, and
mantle, that is, symbols of the _gifta_, but also the _wette_ or
wed, the ring and penny, that is, symbols of the betrothal. Thus
the bridegroom in the ring and penny, instead of paying, actually
received the remnants of the old purchase price of the wife."[932]
[931] See the "Ordo ad facienda sponsalia," in the _Manuale et
processionale ad usum insignis ecclesiae eboracensis_: Surtees
Society _Publications_, LXIII, 26, 27. The double ceremony also
appears in the Sarum or Salisbury manual: MASKELL,
_Monumenta ritualia_, I, 56, 57: Surtees Society _Publications_,
LXIII, Appendix, 18, 19; in the ritual of Hereford; that of the
twelfth century contained in a Pontifical of the library of
Magdalen College, Oxford; in that of the missal of Hanley Castle,
Worcestershire, dating from the thirteenth century; and in that
of the fifteenth century in the Harleian MS., No. 2860, British
Museum; that of a Welsh manual of the same century, in the
library of the dean and chapter of Hereford; while it is plainly
discernible in the ritual of the twelfth century contained in
the Ely Pontifical of Cambridge University library; and that
of the Pontifical of Anianus, bishop of Bangor, 1268-1304: all
printed in Surtees Society _Publications_, LXIII, Appendix,
116, 155-69. _Cf._ the rituals printed by DIECKHOFF,
_Kirchliche Trauung_, 73, 77, 89 ff.; and the Roman marriage
service in BINGHAM, 177, 178, where the dualism appears;
but in the ritual of Paul V. it is not retained, unless the
subsequent giving of the ring may be regarded as the second part.
The priest says: "M. vis accipere N. hic praesentem in tuam
legitimam uxorem?" or "tuum legitimum maritum?" and on receiving
the answer, "Volo," proceeds: "Ego conjungo vos in matrimonio":
_Rituali romanum Pauli Quinti_ (Rome, 1816), 199 f. See the
discussion of the contents of the early rituals in chap, vii,
below.
[932] SOHM, _Eheschliessung_, 101 ff. The text
of this extremely interesting marriage ritual is printed
in FRIEDBERG, _Eheschliessung_, 26, 27; and in
SOHM, _Anhang_, III, 319, 320. For a description of
these early rituals see WEINHOLD, _Deutsche Frauen_, I,
340-48.
In our own civil-marriage ceremonies, where the dualism does not
usually appear, the responses of the parties, the "Yes," "I do," or
"I will," are nothing more than the survival of the ancient private
betrothal, now recognized by law as the only essential parts of
the nuptial ceremony; while the wedding ring is merely a duplicate
of the betrothal or engagement ring, both being the survival of
the _arrha_ and, therefore, of the ancient purchase price of the
bride.[933]
[933] SOHM, _op. cit._, 105 n. 70. On the ring in
English rituals see FRIEDBERG, _op. cit._, 38, note, 46,
47.
The primitive and mediæval marriage whose development has thus
been traced to the thirteenth century was not "civil" marriage in
the strict sense of the word; that is, a marriage contracted under
sanction of the civil authority, as opposed to one solemnized by
authority of the church and according to ecclesiastical forms.[934]
It was a civil marriage only as being a lay marriage. There is
no trace of any such thing as public license or registration; no
authoritative intervention of priest or other public functionary.
It is purely a private business transaction. Either the guardian
gives away the bride and conducts the ceremony; or else the solemn
sentences of the ritual are recited independently by the betrothed
couple themselves. These formalities and the presence of the friends
and relatives[935] are the only means of publicity, the only
substitute for the modern cognizance of the state.[936] Rights and
obligations growing out of the marriage contract are enforced in the
local or national courts just as other civil rights and obligations
are enforced. Only gradually was the ancient usage in this regard
superseded. Slowly but firmly was the exclusive jurisdiction of
the church in matrimonial causes established. Spiritual courts and
the canon law came into existence. In England after the Norman
Conquest the removal of ecclesiastical suits from the temporal to
the new church tribunals led eventually to serious evils. With the
Reformation the way was open for the intervention of the civil
power. Beginning in Holland and America, the state has claimed her
right to control the marriage celebration and the administration of
matrimonial law as being of vital interest to society. How this came
to pass will be explained in the following chapters.
[934] _Ibid._, 30.
[935] TACITUS, _Germania_, 18: "intersunt parentes
ac propinque." It was customary in the Middle Ages for the
assembled friends to form a circle--_Ring_--about the betrothed
couple during the ceremony. Publicity was made a legal
requirement by Pippin: WALTER, _Corpus juris_, II, 42.
FRIEDBERG, _op. cit._, 24 n. 4, gives also references
to mediæval poems. He regards the practice of inviting a large
number of friends as originating in the desire to secure
publicity. Particular cities passed laws requiring the presence
of witnesses; for example, Prague.
[936] Except the publication of banns hereafter mentioned.