The laws of divorce among backward races, it is thus perceived, are full of interest for the student of social institutions. One comes from the study with a clearer perception of the fact that such institutions are but the outward expression of human life—of slow experience and experimentation; and one gains a deeper respect for the concrete results of primitive culture. Especially important is the relation of divorce to the stability of society. The conservatism prevailing even among rude peoples with respect to the liberty of divorce is remarkable. This may be due in part to the fact that primarily marriage does not rest so much upon the sexual instinct as upon family needs.[827]In some instances, where dissolution of the marriage is free to either party, or where it is the peculiar right of the man, divorce is exceedingly rare.[828]The American Indian tribes are conspicuous in this regard.[829]Sometimes there is a strong social sentiment against it. Such is the case in China. Formerly among the Japanese, like the ancient Aztecs, divorces were infrequent;[830]and among many less advanced peoples, such as the Afghans, the Veddahs, or even the Zulus, the sentiment of love is doubtless a stronger check upon instability of the family than is commonly supposed.[831]
The rules governing the division of property are important in this connection; for, as Westermarck suggests, the selfish interests of the husband "prevent him from recklessly repudiating his wife. In many instances divorce implies for the man a loss of fortune."[832]In rare cases he is obliged to provide for the wife's support even after the separation.[833]Often, as already seen, the woman receives back her dotal gift and whatever she brought with her at the marriage; while frequently the husband is obliged to surrender a portion or all of the common property. Thus "among the Karens, if a man leaves his wife, the rule is that the house and all the property belong to her, nothing being his but what he takes with him. Among the Manipuris, according to Colonel Dalton, a wife who is put away without fault on her part, takes all the personal property of the husband, except one drinking cup and the cloth round his loins;" and "similar rules prevail among the Galela, and in the Marianne Group."[834]
The conservative influence of property is even more marked in connection with wife-purchase—a powerful deterrent of hasty divorce. In the case of a sale-marriage, even in the weakened form of dower to the woman, the guilty or responsible party usually suffers a decided disadvantage from the separation. The man who repudiates his wife without just cause, as already shown, may not only forfeit his right to reclaim the bride-money, and incur other losses on the division of the property; but often, particularly where the maternal system of kinship prevails, he may have to surrender his children as well; and the woman who unjustly leaves her husband may lose all that she brought with her into the home or compel her kindred to restore the purchase price.[835]
Here also the results of the genealogical organization must be considered. The blood-feud, paradoxical as it may seem, often acts as a conservative power among primitive men. The wife's kindred may protect her from the vengeance of a brutal husband whom she has deserted; or they may send her back when she has acted indiscreetly or when they dread the wrath of the husband's clan. The organization of society on the basis of kinship has another important bearing upon the effects of divorce. It appears to be practically a universal rule among uncivilized races that the repudiated wife or the woman who legally puts away herhusband shall return to her own family or clan, whose duty it is to receive her. Accordingly, the lot even of the savage woman has mitigating conditions not always accorded by the laws of civilized society. "In savages," observes Mason, "where every man and woman and child is billeted somewhere, there is no such thing as thrusting man or woman out into nowhere.... Should the man wish to repudiate his wife, she cannot be sent out into the jungle or forest; she must be returned to somebody."[836]
[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'sDie Gesetze der Angelsachsen(Leipzig, 1858), until recently the best edition available; or in Thorpe'sAncient 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, inDie 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 theLeges barbarorumare contained in Walter'sCorpus juris germanici antiqui(3 vols.; Berlin, 1824); and in the later and better editions of theMonumenta germaniae historica, particularly theLeges burgundionum, edited by L. R. De Salis (4to; Hanover, 1892); theLeges alamannorum, edited by Karl Lehmann (4to; Hanover, 1888); and the general collection ofLeges, 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'sGermania; 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 inRheinisches Museum für Jurisprudenz, III (281 f.), as also in hisFluchformularen(179); and later in Friedberg's "Zur Geschichte der Eheschliessung,"ZKR., I, 369, 370; in the same author'sEheschliessung(26, 27); and in Sohm'sEheschliessung(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," inMémoires lus à la Sorbonne(1864); and Eckhardt, "Das Witthum oder Dotalitium und Vidualitium in ihrer historischen Entwickelung," inZeitschrift für deutsches Recht, X (437 ff.). But in the literature of recent years of first-rate importance is Sohm'sDas Recht der Eheschliessung(Weimar, 1875), perhaps the most acute and able monograph ever written on the subject; supplemented by hisTrauung und Verlobung(Weimar, 1876). The best extended treatise on the history of the marriage form or contract is Friedberg'sDas Recht der Eheschliessung(Leipzig, 1865). This was preceded by his "Zur Geschichte der Eheschliessung," inZKR., 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 hisVerlobung 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); hisRechtsgeschichte(2d ed., Leipzig, 1894); as also Brunner's very ableRechtsgeschichte(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'sRechtsalterthümer(Göttingen, 1854); the great work of Weinhold,Die deutschen Frauen(Vienna, 1882); which may be read in connection with hisAltnordisches 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 hisBausteine, 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 livelyFrauenleben 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, entitledBeiträge 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 anonymousGeschichte 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-calleddroit de seigneurin 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," inSüd-deutsches Taschenbuch, 1846 (257 ff.); Schincke, "Hochzeitsgebräuche der Germanen," in Ersch und Gruber'sEncyklopädie, II. Sect., T. 9 (166 ff.); Leber, "Des coutumes et usages anciens relatifs aux mariages," in hisCollection 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," inWissenschaftliche 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," inÉtude surquelques points d'archéologie(Paris and Leipzig, 1862); Bérenger-Ferraud, "Mariage et progéniture," in hisSuperstitions 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 theNozze 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 theNozze Cian-Sappa-Flandinet(Bergamo, 1894); Reinsberg-Düringsfeld, "Lieben und Freien in Piemont," inIllustrirte 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 ofmundand 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," inSitzungsberichte der preuss. Akad., 1886; and Kohler, "Die Ehe mit und ohne Mundium," inZVR., 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 excellentVormundschaft im Rechte der Germanen(Braunschweig, 1862). Scheurl'sDas 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," inNouv. 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 hisBeiträge(Braunschweig, 1865). Koehne has investigated "Die geschlechtsverbindung der Unfreien im französischen Recht," in Gierke'sUntersuchungen, 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," inArbeiten einer Gesellschaft in der Oberlausitz, II, 118 ff. (1750).For Anglo-Saxon marriage the best monograph is Young's "Anglo-Saxon Family Law," inEssays(Boston, 1876). Very good papers also are Amira'sErbenfolge 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'sUntersuchungen, 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 hisLa famille et la propriété chez les Germains(Orleans, 1885). Henry Adams inHistorical 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 theAnnals 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 hisHistoire 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," inMémoires de l'académie de Stanislas(Nancy, 1892).]
[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'sDie Gesetze der Angelsachsen(Leipzig, 1858), until recently the best edition available; or in Thorpe'sAncient 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, inDie 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 theLeges barbarorumare contained in Walter'sCorpus juris germanici antiqui(3 vols.; Berlin, 1824); and in the later and better editions of theMonumenta germaniae historica, particularly theLeges burgundionum, edited by L. R. De Salis (4to; Hanover, 1892); theLeges alamannorum, edited by Karl Lehmann (4to; Hanover, 1888); and the general collection ofLeges, 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'sGermania; 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 inRheinisches Museum für Jurisprudenz, III (281 f.), as also in hisFluchformularen(179); and later in Friedberg's "Zur Geschichte der Eheschliessung,"ZKR., I, 369, 370; in the same author'sEheschliessung(26, 27); and in Sohm'sEheschliessung(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," inMémoires lus à la Sorbonne(1864); and Eckhardt, "Das Witthum oder Dotalitium und Vidualitium in ihrer historischen Entwickelung," inZeitschrift für deutsches Recht, X (437 ff.). But in the literature of recent years of first-rate importance is Sohm'sDas Recht der Eheschliessung(Weimar, 1875), perhaps the most acute and able monograph ever written on the subject; supplemented by hisTrauung und Verlobung(Weimar, 1876). The best extended treatise on the history of the marriage form or contract is Friedberg'sDas Recht der Eheschliessung(Leipzig, 1865). This was preceded by his "Zur Geschichte der Eheschliessung," inZKR., 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 hisVerlobung 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); hisRechtsgeschichte(2d ed., Leipzig, 1894); as also Brunner's very ableRechtsgeschichte(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'sRechtsalterthümer(Göttingen, 1854); the great work of Weinhold,Die deutschen Frauen(Vienna, 1882); which may be read in connection with hisAltnordisches 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 hisBausteine, 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 livelyFrauenleben 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, entitledBeiträge 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 anonymousGeschichte 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-calleddroit de seigneurin 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," inSüd-deutsches Taschenbuch, 1846 (257 ff.); Schincke, "Hochzeitsgebräuche der Germanen," in Ersch und Gruber'sEncyklopädie, II. Sect., T. 9 (166 ff.); Leber, "Des coutumes et usages anciens relatifs aux mariages," in hisCollection 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," inWissenschaftliche 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," inÉtude surquelques points d'archéologie(Paris and Leipzig, 1862); Bérenger-Ferraud, "Mariage et progéniture," in hisSuperstitions 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 theNozze 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 theNozze Cian-Sappa-Flandinet(Bergamo, 1894); Reinsberg-Düringsfeld, "Lieben und Freien in Piemont," inIllustrirte 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 ofmundand 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," inSitzungsberichte der preuss. Akad., 1886; and Kohler, "Die Ehe mit und ohne Mundium," inZVR., 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 excellentVormundschaft im Rechte der Germanen(Braunschweig, 1862). Scheurl'sDas 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," inNouv. 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 hisBeiträge(Braunschweig, 1865). Koehne has investigated "Die geschlechtsverbindung der Unfreien im französischen Recht," in Gierke'sUntersuchungen, 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," inArbeiten einer Gesellschaft in der Oberlausitz, II, 118 ff. (1750).
For Anglo-Saxon marriage the best monograph is Young's "Anglo-Saxon Family Law," inEssays(Boston, 1876). Very good papers also are Amira'sErbenfolge 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'sUntersuchungen, 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 hisLa famille et la propriété chez les Germains(Orleans, 1885). Henry Adams inHistorical 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 theAnnals 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 hisHistoire 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," inMémoires de l'académie de Stanislas(Nancy, 1892).]
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 thebeweddung, or betrothal; andsecond, thegifta, or actual tradition of the bride at the nuptials.[839]Thebeweddungwas a "real contract of sale,"[840]essential to which was one-sided performance; that is, payment by the bridegroom of theweotumaorWitthum, 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 orSippe, ended, that of the husband began. But, however hard may have been the lot of the married woman, manifestly hercondition 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. Theweotuma, it is contended, must be looked upon as the price of themund, 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 themundand 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]
Whatever its essential character, there is abundant evidence of the widespread existence of sale-marriage amongthe 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 theGermaniathe earliest description of abeweddung. "The wife," he says, "does not offer adosto 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 theweotuma, 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.
In the earliest English codes the contract is found in its rudest form. Besidesweotuma, various other terms appear for the bride-money. Such aregyft,feoh,pretium, andpecunia 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]
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]
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 thearrha, to be described presently, through the payment to the guardian by the bridegroom of the "golden shilling and the silver penny." In this form thearrhawas 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 thelex saxonummarriage is simply described asuxorem emere, or "buying a wife."[857]The sale-contract retains much of its primitive character, in spiteof 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]
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 themundor that of thewergeld, 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 theweotuma, it by no means follows, as sometimes assumed, that its value was not ordinarily arranged by private agreement, as in the early period.
At a very early day it became customary—instead of theweotumato pay to the guardian a small sum at the betrothal, called in generalarrha[862]—theHand-geldof the German writers—accompanied by promises and sureties for the payment of the price of the bride at thegifta, or nuptials. Strictly speaking, thearrhawas neither a part payment nor even a symbolical payment of theweotuma; it was an act by which the real obligation implied by the contract of sale was engendered.[863]The practice of paying thearrhainstead 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, theweotumawas really transformed into a provision for the widow, payable only after death from the husband's goods.[865]Thebeweddungwas still a "real contract," but not a "contract of sale."[866]
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 thearrha; 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 shillingswergeld, thepenalty 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]
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 thebeweddunghad become a merely "formal contract," thewed,wette,Treugelöbniss,wadium, orfides factaof the early laws.[870]In this case there was not even one-sided fulfilment through payment of thearrha, which in the form of wine-money was merelypromisedto the guardian;[871]but instead the agreement or convention was accompanied by sureties to pay theweotumato 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 mostpopular symbol by which the contract was closed was a "weakened" form of the oath, theHandschlag, 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 thewed, theweotumaceases 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 themorgengifu, ormorning-gift.[874]This was originally a small voluntary gift to the bride on the morning following the nuptials; but as theweotumadecreased 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 Lombardquarta[875]and the Frankishtertia;[876]the Normandouaire, and thedos ad ostium ecclesiaeof Glanville, the predecessors of the modern English dower.[877]
This third phase of thebeweddungmay 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 betrothalritual 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]
The form of betrothal here described is that of thewed. Thefoster-laen, or wine-money, a substitute for thearrha, is not paid down, but it is merely promised to the guardian; while the morning-gift—"in case she choose his will"—and theweotuma—"if she live longer than he"—are the important elements, and these belong to the bride.[882]
Such was the form ofbeweddunggenerally 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, orarrha, is deemed sufficient, the payment of the actual price, orweotuma, beingreserved for the nuptials, when, often, it is paid, not to the guardian, but to the bride, disclosing to us the genesis of the dower. Thebeweddungis 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, thegifta, or actual "giving" of the bride to the husband. Here there is no lack of ceremony and solemn phrases. Legally thegiftais 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 thegifta, 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 theweotuma, 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]
A point which requires special notice is the relative legal importance of thebeweddungand thegifta. "Whether the marriage begins with the betrothal, or with the delivery ofthe 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, apactum 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 thegifta.[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 theweotumaand an additional fine.[895]On the other hand, a breach of the contract by the bridegroom is punished by forfeiture of theweotuma, and possibly also by a fine.[896]The betrothal created the negative effects of marriage—theobligation of connubial fidelity. The bridegroom could maintain his title as a husband against all third parties. Thegiftaconveyed 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]
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 wasgradually formulating, there would be all the essentials of a valid marriage, the consent to be husband and wife and the sexual union."[899]
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 essentialto 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 themundover her refused their assent to a second marriage, she soon succeeded in freeing herself entirely from such restraints.[906]
Canute forbids the marriage of a maiden against herwill.[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.
The form of contract observed in self-betrothal is usually thewed, sealed by theHandschlagor hand-fasting. The "real contract" through payment of thearrhais, however, also retained; but thearrhais 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 asarrha; 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 thearrha,[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 themund, 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 thearrha, 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 Germanarrhanecessarily 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 laterMiddle 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 thearrha.[915]Naturally after thearrhais paid to the bride it becomes confused with thewed, 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]
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]anoratororFürsprecherappears, 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, ofthe 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 "Trauungby aFürsprecheris 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]
From about the beginning of the thirteenth century self-giftawas 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. Thegiftahad 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]
Self-giftaand 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 theTrauungthrough 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 thesponsalia per verba de futuroof 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]
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 thegifta, but also thewetteor wed, the ring and penny, that is, symbols of the betrothal. Thus thebridegroom in the ring and penny, instead of paying, actually received the remnants of the old purchase price of the wife."[932]
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 thearrhaand, therefore, of the ancient purchase price of the bride.[933]
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 ofpublicity, 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.