THE DECAY OF MARRIAGE BY PURCHASE. THE MARRIAGE PORTION
It has often been said that the position of women is the surest gauge
of a people’s civilization. This assertion, though not absolutely,
is approximately true. The evolution of altruism is one of the chief
elements in human progress, and consideration for the weaker sex is one
of the chief elements in the evolution of altruism.
According as more elevated ideas regarding women grew up among the
so-called civilized peoples, the practice of purchasing wives was
gradually abandoned, and came to be looked upon as infamous. The
wealthier classes took the first step, and poorer and ruder persons
followed their example. It is of no little interest to follow the
course of this process.
In India, in ancient times, the Âsura form, or marriage by purchase,
was lawful for all the four castes. Afterwards it fell into disrepute,
and was prohibited among the Brahmans and Kshatriyas, but it was
approved of in the case of a Vaiśya and of a Śudra. Manu forbade it
altogether.[2428] “No father who knows the law,” he says, “must take
even the smallest gratuity for his daughter; for a man who, through
avarice, takes a gratuity, is a seller of his offspring.”[2429]
Purchase survived as a symbol only in the Ârsha form, according to
which the bridegroom sent a cow and a bull or two pairs to the
bride’s father.[2430] Manu expressly condemns those who call this
gift a gratuity;[2431] hence the Ârsha form was counted by Manu and
other lawgivers as one of the legitimate modes of marriage.[2432]
The Greeks of the historical age had ceased to buy their wives; and
in Rome, _confarreatio_, which suggested no idea of purchase, was in
the very earliest known time the form of marriage in force among the
patricians. Among clients and plebeians also, the purchase of wives
came to an end in remote antiquity, surviving as a mere symbol in their
_coemptio_.[2433] Among the Germans, according to Grimm, it was only
Christianity that abolished marriage by purchase.[2434] Laferrière
and Koenigswarter think it prevailed among the Saxons as late as the
reign of Charles the Great, and that in England it was prohibited by
Cnut.[2435] In _Lex Alamannorum_, _Lex Ripuariorum_, ‘Grâgâs,’ and
the Norwegian laws, real purchase money is not spoken of; and there is
reason to believe that the “mundr,” mentioned in the elder ‘Gula-lag’
had gradually lost its original meaning of price for a bride.[2436]
In the Talmudic law, the purchase of wives appears as merely symbolic,
the bride-price being fixed at a nominal amount.[2437] The Mohammedan
“mahr” is also frequently merely nominal.[2438] Among the Finns,
the purchase of wives had disappeared in the remote times when their
popular songs originated.[2439] Though it still was usual for a
bridegroom to give presents to his bride and her parents, passages
in the songs indicate that not even the memory of a real purchase
survived.[2440] In China, although marriage presents correspond
exactly to purchase-money in a contract of sale, the people will not
hear of their being called a “price”;[2441] which shows that, among
them also, some feeling of shame is attached to the idea of selling a
daughter.
We may discern two different ways in which this gradual disappearance
of marriage by purchase has taken place. It has been suggested that the
sum with which the bridegroom bought the bride became a payment for
the guardianship of her.[2442] However this may be, the purchase-money
became in time smaller and smaller, and took in many cases the form of
more or less arbitrary presents. Only a relic of the ancient custom, as
we have seen, was left, often appearing as a sham sale in the marriage
ceremonies. Another mode of preserving the symbol of sale was the
receipt of a gift of real value, which was immediately returned to the
giver. This arrangement is said by Âpastamba to have been prescribed
by the Vedas “in order to fulfil the law”—that is, the ancient law
by which the binding form of marriage was a sale.[2443] Generally,
however, not the same but another gift is presented in return. Thus,
at Athens, at some time which cannot be determined, but which was
undoubtedly earlier than the age of Solon, the dower in the modern
sense arose; and, as has been suggested,[2444] this portioning of the
bride by her father or guardian very probably implied originally a
return of the price paid. Again, in China, exchange of presents takes
place between the guardians of the bridegroom and the guardians of the
bride; and this exchange forms the subject of a long section in the
penal code, for, “the marriage articles and betrothal presents once
exchanged, the parties are considered irrevocably engaged.”[2445] In
Japan, the bride gives certain conventional presents to her future
husband and his parents and relatives, and, as to the value of these
presents, she should always be guided by the value of those brought by
the bridegroom.[2446] Among the ancient Germans, according to Tacitus,
the wife in her turn presented the husband with some kind of arms,
and this mutual exchange of gifts formed the principal bond of their
union.[2447] Grimm also suggests that the meaning of the Teutonic dowry
was partly that of a return gift.[2448]
On the other hand, the purchase-sum was transformed into the morning
gift and the dotal portion. A part—afterwards the whole—was given
to the bride either directly by the bridegroom or by her father.
Manu says, “When the relatives do not appropriate for their use the
gratuity given, it is not a sale; in that case the gift is only a token
of respect and of kindness towards the maidens.”[2449] This gift was
called “çulka,” or her fee; but its close connection with a previous
purchase appears from the fact that it passed in a course of devolution
to the woman’s brothers, and one rendering of the text of Gautama
which regulates this succession, even allowed the fee to go to her
brothers during her life.[2450] In modern India, according to Dubois,
men of distinction do not appropriate the money acquired by giving a
daughter in marriage, but lay it out in jewels, which they present to
the lady on the wedding-day.[2451] Among the Greeks of the Homeric age,
the father did not always keep the wedding-presents for his own use,
but bestowed them, wholly or in part, on the daughter as her marriage
portion. At a later period, the bridegroom himself gave the presents
to his wife, when he saw her unveiled for the first time, or after the
νὺξ μυστική.[2452] Among the Teutons the same process of development
took place. Originally, the purchase-sum went to the guardian of the
bride, partly, perhaps, to her whole family; but by-and-by it came
to be considered her own property,[2453] as Tacitus says, “Dotem non
uxor marito sed uxori maritus offert.”[2454] This was the case among
the Scandinavians at the date of the inditing of their laws, and among
the Langobardi from the seventh century.[2455] “La dot,” says M.
Ginoulhiac, “n’est autre chose que le prix de la coemption en usage
dans la loi salique; elle fut donnée à la femme au lieu de l’être à
ses parents, qui ne reçurent plus que le _solidum_ et _denarium_,
ou le prix fictif, et après la mort de l’épouse, une partie de la
dot.”[2456] In _Lex Alamannorum_ and _Lex Ripuariorum_, only a _dos_
which the wife receives directly from her husband is spoken of.[2457]
And it seems probable that the morning gift, which has survived very
long in Europe,[2458] originated in the purchase-sum, or formed a
part of it,[2459] though it has often been considered a _pretium
virginitatis_.[2460] According to ancient Irish law, a part of the
“coibche,” or bridal gift, went to the bride’s father, or, if he was
dead, to the head of her tribe;[2461] but another part was given by the
bridegroom to the bride herself after marriage. The same was the case
with the Welsh “cowyll”;[2462] and the Slavonic word for bride-price,
“vĕno,” came to be frequently used for _dos_.[2463]
Speaking of the ancient Babylonians, Herodotus says that “the
marriage portions were furnished by the money paid for the beautiful
damsels.”[2464] Among the Hebrews, as it seems the “mohar,” or a
part of it, was given to the bride herself.[2465] We read in the
Book of Genesis that Abraham’s servant “brought forth jewels of
silver, and jewels of gold, and raiment, and gave them to Rebecca: he
gave also to her brother and to her mother precious things.”[2466]
Professor Robertson Smith is inclined to believe that, in Arabia,
before Mohammed, a custom had established itself by which the husband
ordinarily made a gift—under the name of “sadâc”—to his wife upon
marriage, or by which a part of the “mahr” was customarily set aside
for her use.[2467] But under Islam the difference between “mahr”
and “sadâc” disappeared, the price paid to the father becoming the
property of the woman.[2468]
But it is not only in the history of the great civilized nations that
we find marriage by purchase falling into decay. Among several peoples
who are still in a savage or semi-civilized state, the custom of
purchasing the wife has been modified, and of a few it is expressly
stated that they consider such a traffic disgraceful.[2469] The change
has taken place in exactly the same way as we have seen to be the case
with higher races.
On the one hand, the purchase has become more or less a symbol. In some
cases the gift no longer represents the actual value of the girl, in
others it is followed by a return gift. Thus, in Oregon, “the wife’s
relations always raise as many horses (or other property) for her
dower, as the bridegroom has sent the parents, but scrupulously take
care not to turn over the same horses or the same articles.”[2470] The
Ahts consider it a point of honour that the purchase-money given for
a woman of rank shall, some time or other, be returned in a present
of equal value.[2471] Similar statements are made with reference
to the Patagonians,[2472] Mishmis,[2473] and certain tribes in the
Indian Archipelago.[2474] Among the Bagobos of the Philippines, if the
newly-married couple are satisfied with each other, the father of the
wife gives the half of the purchase-sum back to the husband;[2475]
whilst, in Saraë, the girl’s father, at the wedding, has to return even
five times the price which he received from the bridegroom’s father at
the espousals, the return gift, however, becoming the common property
of the married couple.[2476] Among the Badagas of the Neilgherries
also, the return gift is generally greater in value than the sum which
has been paid for her.[2477] Several other peoples contract marriages
by an exchange of presents.[2478]
On the other hand there are peoples among whom the purchase-sum, or
a part of it, is given to the bride either by her father or by the
bridegroom himself. But, as this may be an indirect way of compensating
the bridegroom for the price he has paid, it is in many cases almost
impossible to distinguish between this custom and the one last
mentioned. It is equally hard to distinguish between the cases in which
the bride receives a part of the price from her father, and those in
which she receives a gift from the bridegroom directly. But perhaps the
greatest difficulty of all is to make out whether the presents obtained
from the bridegroom formed originally a part of the bride-price or were
only a means of gaining her own consent. Among the Eskimo, the lover
presents clothes to the lady, who puts them on, and is thenceforth
his wife.[2479] Among the Dacotahs, men ask for consent to marriage
by sending the price of the girl, and in addition often give presents
to the object of their esteem.[2480] Speaking of the South American
Guanas, Azary says, “Toutes les cérémonies du mariage se réduisent à
un petit présent que le mari fait à sa prétendue.”[2481] Again, among
the Javanese,[2482] Kalmucks,[2483] and Ahl el Shemál, a Bedouin tribe
of Syria,[2484] the money or articles which the father receives for
his daughter are generally looked upon as a settlement or provision
for the wife; and among the Pelew Islanders,[2485] Mishmis,[2486]
Bashkirs,[2487] Votyaks,[2488] &c.,[2489] she receives a larger or
smaller part of the bride-price.
* * * * *
From marriage by purchase we have thus reached the practice of dower,
which is apparently the very reverse of it. But, as we have seen, the
marriage portion derives its origin partly from the purchase of wives.
Where, as among the Marea,[2490] the endowment becomes the exclusive
property of the husband, it is, no doubt, intended to be a compensation
for the bride-price; whilst, among other peoples, money or goods for
which the man has bought his wife are handed over to her by the father
as a marriage portion which, in a certain way, belongs to her. Yet, as
we shall see directly, the dowry does not in every case spring from a
previous purchase.
The marriage portion serves different ends, often indissolubly mixed
up together. It may have the meaning of a return gift. It may imply
that the wife as well as the husband is expected to contribute to the
expenses of the joint household. It is also very often intended to be a
settlement for the wife in case the marriage be dissolved through the
husband’s death or otherwise. But as, in such instances, the husband
generally has the usufruct of the portion, as long as the union lasts,
it is in many cases impossible to discern whether the original meaning
was that of a return gift to the man or of a settlement for the woman.
We read in the ‘Laws of Manu,’ “What was given before the nuptial
fire, what was given on the bridal procession, what was given in token
of love, and what was received from her brother, mother, or father,
that is called the sixfold property of a woman. Such property, as well
as a gift subsequent and what was given to her by her affectionate
husband, shall go to her offspring, even if she dies in the lifetime of
her husband.”[2491] The Hindu law recognizes the dominion of a married
woman over this property (her “strîdhan”),[2492] but the husband has
nevertheless power to use and consume it in case of distress.[2493]
At Athens, the administration of the dower certainly belonged to the
husband, who might defray with it the expenses of the marriage, and
even had a right to alienate the movable objects forming a part of the
marriage portion.[2494] But it did not become his property. If the
marriage tie was dissolved through divorce or through the husband’s
death, the dower had to be restored to the woman, who, as a security
for this restitution, had a mortgage, consisting generally of a piece
of real property;[2495] or if, in case of divorce, the husband did not
restore the dower, he paid, whilst it was retained, nine oboli every
month as interest.[2496] The Roman _dos_ was intended to be the wife’s
contribution towards the expenses of the marriage state.[2497] It
became the husband’s property, as if it were a patrimony which he had
a right not only to administer, but even to dispose of independently
of the will of his wife.[2498] This confusion of the dower with the
patrimony was tolerable as long as marriage was contracted for life,
but became very disastrous during the period when divorces were
frequent. At the end of the Republican era, therefore, the husband’s
right to dispose of his wife’s marriage portion was limited. It had to
be restored in case of divorce, as also in case of the marriage being
dissolved through the husband’s death. The _Lex Julia de adulteriis_
prevented him from alienating dotal land without the wife’s consent, or
mortgaging it even with her consent; and the legislation of Justinian
prevented alienation with the wife’s consent, and declared the law on
the subject applicable to provincial land.[2499] The general tradition
of the Roman _dos_ was carried on by the Church, the practical object
being to secure for the wife a provision of which the husband could
not wantonly deprive her, and which would remain to her after his
death.[2500] The Roman dotal right, more or less modified in the laws
of the different countries, underlies modern European legislation; the
husband generally administers and has the use of his wife’s dotation,
but it remains _her_ property.[2501]
Among the Germans of early times, the bride-price which was handed
over to the woman as her marriage portion became her exclusive
property, of which the husband could not dispose.[2502] Besides this
_dos_, she received from her parents an endowment, as a sort of
compensation for her inheritance, or as an advance on it. This also
was her private property, at least so far that it went to her if
the marriage was dissolved.[2503] Among the Slavs, the dower seems
originally to have been given to the wife as a security in the event of
her needing independent support; and, among the Poles and Bohemians,
the husband could make no use of it, unless he left his own goods as
a deposit.[2504] In Wales, a woman received not only a part of the
bride-price, “cowyll,” but also a marriage portion from her father,
called “agweddi” (representing the “tincur” of the Irish), which,
during cohabitation, belonged to husband and wife jointly. In case
they separated before the end of seven years, the wife was to receive
this portion back; and in any case, even if she left her husband for
no reason before the seventh year, she had her “cowyll.” If the
separation took place after this period, the property which the wife
brought with her was divided.[2505]
The Hebrews, in early times, generally gave daughters as a dowry only a
part of the “mohar.” Afterwards a woman who married was endowed with
a portion called “nedunia,” of which the husband had the usufruct as
long as the marriage lasted.[2506] The Mohammedans, as a rule, settle
very large dowers on their wives; and it is generally stipulated that
two-thirds of the dowry shall be paid immediately before the marriage
contract is made, whilst the remaining third is held in reserve, to be
paid to the wife in case of her being divorced against her own consent,
or in case of the husband’s death.[2507] And whatever property the
wife receives from her parents or any other person on the occasion of
her marriage, or otherwise, is entirely at her own disposal, and not
subject to any claim of her husband or his creditors.[2508] Speaking
of newly-married people among the Mexicans, Acosta says, “When
they went to house they made an inventory of all the man and wife
brought together, of provisions for the house, of land, of iewells
and ornaments, which inventories every father kept, for if it chanced
they made any devorce (as it was common amongest them when they agree
not), they divided their goods according to the portion that every one
brought.”[2509]
Among races at a lower stage of civilization[2510] the dowry commonly
subserves a similar end—that is, in case of separation or divorce, the
wife gets back her marriage portion, though the husband, as it seems in
most cases, has the usufruct of it as long as marriage lasts. But, in
savage life, the dowry plays no important part. Often nothing of the
kind exists,[2511] and, where it does, the portion generally consists
of some food, clothes, household goods, or other trifles,[2512] and
occasionally of cattle.[2513] Ultimately, as we have seen, the dowry is
due to a feeling of respect and sympathy for the weaker sex, which, on
the whole, is characteristic of a higher civilization.[2514] And, as
we have spoken of a stage of marriage by capture and another stage of
marriage by purchase, we may now speak of a third, where fathers are
bound by law or custom to portion their daughters.
Thus the Hebrews[2515] and Mahommedans[2516] consider it a religious
duty for a man to give a dower to his daughter. In Greece the dowry
came to be thought almost necessary to make the distinction between
a wife and a concubine παλλακή;[2517] and Isaeus says that no decent
man would give his legitimate daughter less than a tenth of his
property.[2518] Indeed, so great were the dowers given that, in
the time of Aristotle, nearly two-fifths of the whole territory of
Sparta were supposed to belong to women.[2519] In Rome, even more
than in Greece, the marriage portion became a mark of distinction
for a legitimate wife.[2520] It was the duty of the wife to
provide her husband with _dos_, and a woman herself had a legal
claim to be provided with a dower by her father or other paternal
ascendants.[2521] And, though later on, Justinian in several of his
constitutions declares that _dos_ is obligatory for persons of high
rank only,[2522] the old custom did not fall into desuetude.[2523] The
Prussian ‘Landrecht’ still prescribes that the father, or eventually
the mother, shall arrange about the wedding and fit up the house of
the newly-married couple.[2524] According to the ‘Code Napoléon,’
on the other hand, parents are not bound to give a dower to their
daughters,[2525] and the same principle is generally adopted by modern
legislation. Yet there is still a strong feeling, especially in the
so-called Latin countries, in favour of dotation. This feeling, as
Sir Henry Maine remarks, is the principal source of those habits of
saving and hoarding, which characterize the French people, and is
probably descended, by a long chain of succession, from the obligatory
provisions of the marriage law of the Emperor Augustus.[2526]
In this course of development, the marriage portion has often become
something quite different from what it was originally. It has in many
cases become a purchase-sum by means of which a father buys a husband
for his daughter, as formerly a man bought a wife from her father.
Euripides, transferring to the heroic age the practice of his own time,
makes Medea complain that her sex had to purchase husbands with great
sums of money.[2527] “Pars minima est ipsa puella sui,” the Latin poet
sings. And, in our days, a woman without a marriage portion, unless she
has some great natural attractions, runs the risk of being a spinster
for ever. This state of things naturally grows up in a society where
monogamy is prescribed by law, where the adult women outnumber the
adult men, where many men never marry, and where married women too
often lead an indolent life.