V. EARLY HISTORY OF DIVORCE…

V. EARLY HISTORY OF DIVORCE

[BIBLIOGRAPHICAL NOTE V.--For the law and custom of divorce among uncivilized peoples the best analysis and the most painstaking classifications are given by Post in his Entwicklungsgeschichte des Familienrechts and the first volume of his Afrikanische Jurisprudenz, supplemented by the more general notices contained in his various other writings. The subject is also well treated, with the usual minute citation of authorities, in the twenty-third chapter of Westermarck's Human Marriage. The fourteenth chapter of Letourneau's L'évolution du mariage et de la famille is interesting and suggestive, but his analysis is defective; and in this connection, as elsewhere, the author is inclined to take too pessimistic a view of the juridical character of early society. Further general or special discussion may also be found in many of the works already described in previous Bibliographical Notes, especially in those of Wake, Starcke, Spencer, Mason, Unger, Bastian, Friedrichs, Smith, Krauss, Wilken, Riedel, Henrici, Bernhöft, Rehme, Hellwald, Klemm, Ratzel, Waitz, Fritsch, Munzinger, Sarasin, and the numerous papers of Kohler. For the Chinese, in connection with the books enumerated in Bibliographical Note IV, read Legge, Life and Teachings of Confucius (3d ed., London, 1872); Doolittle, Social Life of the Chinese (New York, 1867); and Alabaster, Chinese Criminal Law (London, 1899). The literature relating to the Eskimo and the red Indians of America, mentioned in Bibliographical Note IV, yields many important notices of divorce usage. In addition read Thwaite's valuable paper on the Winnebagoes, Wisconsin Hist. Collections, XII (Madison, 1892). For reference to the divorce institutions among Greeks, Romans, Hebrews, and Early Germans see Bibliographical Note XI.]

I. THE RIGHT OF DIVORCE

Few of the results of recent research are more surprising than the revelation of the existence among low races of elaborate systems of unwritten law covering, often in a very orderly and comprehensive way, most of the divisions which one ordinarily associates with "civilized" jurisprudence.[724] This is especially true of the law of divorce. The investigations of various scholars, notably those of Kohler, Letourneau, Westermarck, and Post, have disclosed among the barbarous or even savage races of mankind a careful attention to detail, a stability, and often a respect for equity, in the customary rules relating to the dissolution of marriage, which western prejudice is scarcely prepared to find; while other peoples commonly looked upon as civilized, but relatively non-progressive, such as the Chinese, are sometimes quite capable of teaching us valuable lessons in this regard.

[724] For the proof, see, for instance, the numerous writings of Riedel, Wilken, Bastian, Friedrichs, Bernhöft, Post, and Kohler.

According to the generalization of Post, who has given the most careful groupings,[725] "the laws of divorce found among the different peoples of the earth vary within the widest limits conceivable." So confusing, indeed, is the mass of custom relating to the subject that in the very outset a word of warning must be given. For in the present state of inquiry, often dependent upon superficial observation and conflicting reports, any analysis or classification, however careful, must perforce be accepted as really tentative and only in broad outline approaching the truth. Nevertheless, with regard to the liberty of divorce, following the suggestion of Post, five classes of peoples may be differentiated:

1. Very often among rude races, particularly where the "genealogical organization is little developed or in process of decay," the marriage bond is lax, and it is readily dissolved at the pleasure of either party.[726] Such is the case with many African, Asiatic, American, and Oceanic peoples. Among the African Damaras, for instance, the wife may change her husband every week if she likes.[727] Similarly among the Shekiani, another negro tribe, the woman may abandon her spouse for mistreatment or for any other cause, returning to her native village, where her friends make it a point of honor not to give her back; and in this way wars sometimes arise.[728] Like freedom exists on the Gold Coast and among the Felups of Fogni; and very commonly in Africa the wife may leave the husband if the purchase price is returned.[729] Among the Makassars and Buginese, without assigning any cause whatever, either party may divorce the other, dividing the children between them.[730] The same is true of the endogamic Alfurese of Minahasa, with whom the cognatic system of relationship prevails.[731] Even in Burma divorce appears to be a one-sided matter, though the person dissolving the marriage suffers severe disadvantages with respect to property rights.[732] In ancient Arabia marriages were formed without ceremony, and they were ended by either spouse with equal ease.[733] But the law of the Amaxosa, constituting with the Amazulu the division of the Bantu stock commonly called "Kafirs," affords a particularly interesting example of early custom with regard to divorce and its legal consequences. Both parties enjoy the greatest freedom in dissolving the marriage; and this is all the more striking because of the prevalence of wife-purchase, which usually restricts the privileges of the woman in this regard. If the marriage is childless, however long it may have endured, the husband who proves the alleged ground of divorce is entitled to receive back the purchase price; and this is true also, in case of such a marriage, when the separation takes place on the part of the wife, unless she establishes very grave cause for her action. The divorced woman is permitted to marry again, provided the purchase price is restored to the first husband; and this in such case he is entitled to receive even when she has borne him children: for here "in all cases the children belong to the father."[734]

[725] POST, Familienrecht, 75-79, 249-65; idem, Anfänge, 20, 21; idem, Afrikanische Jurisprudenz, I, 320 ff., 434 ff.; idem, Grundlagen des Rechts, 267 ff.

[726] POST, Familienrecht, 250-58, enumerates six classes of peoples according to the freedom of divorce: (1) the marriage relation loose and dissoluble at the pleasure of either party; (2) marriage indissoluble; (3) divorce only by mutual consent; (4) divorce the right of the husband only; (5) divorce the right of the wife; (6) divorce only on definite grounds, these grounds either being the same for either spouse or different for the man and the woman respectively. In the text examples of the fifth group are given in connection with the cases of divorce at the pleasure of either party; for where the wife has the right to put away or leave the husband when she likes, the husband, unless in very exceptional cases (POST, Grundlagen, 271), appears to have the same privilege with respect to the wife; hence Post's first and fifth groups are practically the same.

In general on the first phase, see POST, _Afrikanische Jurisprudenz_, I, 433-38; idem, Grundlagen, 267 ff.; idem, Familienrecht, 249-51; LETOURNEAU, _L'évolution du mariage_, 284 ff., 289, 290; BERNHÖFT, "Das Gesetz von Gortyn," ZVR., VI, 430 ff., 434; WESTERMARCK, _Human Marriage_, 518 ff.

[727] POST, Afrikanische Jurisprudenz, I, 436, 437. The husband seems also to have absolute right of divorce: LETOURNEAU, op. cit., 285.

[728] POST, op. cit., I, 437.

[729] Among the Mundingos the wife has an action against the husband for abuse; in Soulimana she may leave him, if the bride-presents are restored; while among the Krus in such cases her relatives must repay double the purchase price; WAITZ, Anthropologie, II, 119, 120. Among the Charruas, where polygyny exists, the wife abandons the husband if an unmarried man will take her: KLEMM, Kulturgeschichte, II, 75.

[730] POST, Familienrecht, 251.

[731] ibid.

[732] This is the conclusion of KOHLER, "Aus der Praxis des buddhistischen Rechts in Birma," ZVR., VI, 389-91, following the interesting decisions in JARDINE, Circulars (Civil and Criminal) of the Court of the Judicial Commissioner of British Burma, 1883 (Rangoon, 1884). Cf. also KOHLER, in ZVR., VI, 172; POST, Familienrecht, 251; and WESTERMARCK, op. cit., 528.

[733] Among the early Arabians the woman as well as the man had entire freedom of divorce. The nikâh al-mot'a, or temporary contract-marriage, amounted merely to a restriction of the woman's power of divorce during the short term of agreement: SMITH, Kinship and Marriage, 59 ff., 65 ff.; KREMER, Kulturgeschichte des Orients, I. 538; WILKEN, Das Matriarchat, 18, 9 ff.: ap. Ammianus Marcellinus, Book XIV, sec. iv, 4, YONGE'S trans. (London, 1887), 11. By the later Arabian law, after the rise of wife-capture and wife-purchase, divorce became the sole privilege of the husband; and the same is true under the still later law. Cf. in general, HELLWALD, Die mensch. Familie, chaps. xxii, xxiii; KOHLER, "Ueber das vorislamitische Recht der Araber," ZVR., VIII, 244, 248, 257; FRIEDRICHS, "Das Eherecht des Islam," ibid., VII, 263-69.

[734] REHME, "Ueber das Recht der Amaxosa," ZVR., X, 38, 39; cf. POST, Afrikanische Jurisprudenz, I, 436. FRITSCH, Die Eingeborenen Süd-Afrikas, 113, says that in cases of very cruel treatment the wife may abandon the husband and return to her family; to get her back the husband has to make an after-payment.

Divorce is a simple matter among the Point Barrow Eskimo. "As well as we could judge," writes Murdoch, "the marriage bond was regarded simply as a contract ...; and, without any formal ceremony of divorce, easily dissolved in the same way on account of incompatibility of temper or even on account of temporary disagreements."[735] Among the Santee Dakotas, where mother-right is said to prevail, "a wife's mother can take her from the husband and give her to another man." With "the Cegiha, if the husband is kind, the mother-in-law never interferes." But when he is "unkind the wife takes herself back, saying to him, 'I have had you for my husband long enough; depart.'" When the man has beaten the woman several times or been otherwise cruel, sometimes her father or elder brother says to him: "You have made her suffer; you shall not have her for a wife any longer." When a woman who has been warned against a man by her relatives repents and wishes to dissolve the marriage, her male kindred as a punishment say to her: "Not so; still have him for your husband; remain with him always."[736]

[735] In two cases wives left their husbands for bad treatment. Occasionally the man repudiates his wife; and sometimes there are several changes or exchanges before a permanent choice is made. When, however, a union is once settled, it is not easily dissolved: MURDOCH, in IX. Rep. of Bureau of Eth., 411, 412. Similar freedom for both sexes prevails among the Eskimo about Bering Strait: NELSON, ibid., XVIII, Part I, 292.

[736] DORSEY, "Omaha Sociology," _III. Rep. of Bureau of Eth._, 261,262. For further examples of easy divorce among the Indians see TURNER, "Ethnology of the Ungava District," ibid., XI, 270 (Nenenot); Report Smith. Inst., 1885, 71 (Pawnees marry and unmarry at pleasure); ANCHIETA, "Informação," Revist. Trim. Hist., VIII, 254-62 (the woman leaves the man at pleasure in Brazil).

2. Passing to the opposite extreme, there are peoples with whom marriage is a relation absolutely indissoluble. Sometimes this is the case on sacramental grounds, implying usually considerable progress in religious ideas;[737] but it is also true of peoples standing on a very low plane of culture, such as certain of the Papuas of New Guinea, the Veddahs[738] of Ceylon, or the Niassers of Batu, where death alone is sufficient to dissolve the marriage bond.[739]

[737] The old Indie law does not recognize a proper divorce, though the husband may "supersede" his wife; but sometimes by the existing custom of Indian peoples it is allowed: KOHLER, in ZVR., III, 384, 386 ff.; VII, 236; XI, 169. Cf. FRIEDRICHS, ibid., X, 251; WESTERMARCK, op. cit., 525; LETOURNEAU, op. cit., 301, 302.

[738] SARASIN, Die Weddas von Ceylon, I, 459.

[739] POST, Familienrecht, 251, 252, following the researches of Wilken and Riedel. This rule applies, apparently, only to the Papuas of Geelvinkbai in New Guinea; elsewhere in that island the man may put away the woman at pleasure: KOHLER, "Ueber das Recht der Papuas auf Neu-Guinea," in ZVR., VII, 373. In general cf. WESTERMARCK, op. cit., 517.

3. Between these extremes of one-sided freedom and entire prohibition of divorce various intermediate phases appear. Sometimes the only method is mutual agreement of the parties. So, for instance, according to Post, among the Karo-Karo, a Batak tribe on the east coast of Sumatra, neither harsh mistreatment, wicked desertion, nor even adultery gives either the wife or the husband singly the right to demand a separation. Only in case of life-assault is one-sided divorce permitted; and this rule is perhaps a mitigation of the older and severer law.[740] In West-Victoria "a man can divorce his wife for serious misconduct, and even put her to death; but in every case the charge against her must first be laid before the chiefs of his own and his wife's tribes, and their consent to her punishment obtained. If the wife has children, however, she cannot be divorced. Should a betrothed woman be found after marriage to have been unfaithful, her husband must divorce her. Her relations then remove her and her child to her own tribe, and compel the father of the child to marry her, unless he be a relative. In that case she must remain unmarried. If a husband is unfaithful, his wife cannot divorce him. She may make a complaint to the chief, who can punish the man by sending him away for two or three moons; and the guilty woman is very severely punished by her relatives." But there are other ways of dissolving a marriage; and under some conditions the woman has a chance. Exchange of wives, when both are childless, is "permitted only after the death of their parents, and, of course, with the consent of the chiefs." A couple without children may separate by mutual consent; and "when a woman is treated with cruelty by her husband, she may put herself under the protection of another man, with the intention of becoming his wife. If he take upon himself the duty of protecting her, he must challenge her husband and defeat him in single combat in presence of the chiefs and friends of both parties." When a "husband knows that his wife is in love with another man, and if he has no objection to part with her, he takes her basket to the man's wuurn and leaves it. But as no marriage or exchange of wives can take place without the consent of the chief, the wife remains with her husband till the final great meeting, when the bargain is confirmed. This amicable separation does not create any ill feeling between the parties, as the woman is always kind to her first husband without causing any jealousy on the part of the second. Such transactions, although lawful, may not be approved of by the woman's relatives, and she is liable to be speared by her brother."[741]

[740] POST, op. cit., 252. In some instances, however, mutual agreement is only one of several grounds on which dissolution of the marriage is allowed. "So ist z. B. auf Mukuhiva, auf den Marianen, bei den Koluschen eine Trennung der Ehe durch gegenseitige Uebereinkunft gestattet. Ebenso in Birma."--POST, loc. cit., 252, 253.

[741] DAWSON, Australian Aborigines, 33-36. Divorce by mutual consent is lawful in Polynesia, but it rarely occurs if there are children: AVERY, "The Indo-Pacific Oceans," Am. Ant., VI, 366; the same is true of some American peoples: WAITZ, Anthropologie, III, 328.

Among the Marea, when husband and wife can no longer tolerate each other, they are given a year's probation by the "family council;" and only after the expiration of this period does the formal divorce take place. A discontented Marea dame of noble (patriarchal) rank may not of her own will leave her husband; for this would offend social usage. But a Tigrait, or woman of the servile class, may under such circumstances abandon her spouse, provided thenceforth she live abroad.[742]

[742] MUNZINGER, Ostaf. Studien, 241.

4. Again it is very common among uncivilized as well as more advanced races for a man to have absolute right of divorce, putting away his wife when he likes, without the assignment of any reason, or on the most frivolous grounds.[743] Sometimes, even among the same peoples, the woman has a reciprocal right, as will presently appear; but very often divorce is the sole prerogative of the man, or else the woman is grudgingly allowed the privilege only for the most serious cause. The unfavorable position in which she is thus placed is no doubt largely due to wife-capture, and especially to wife-purchase, through which she too often sinks to the level of a mere chattel or beast of burden. Still even wife-purchase, as hereafter shown, may have its compensations; for the husband cannot act too harshly without danger of the blood-feud; and he may suffer a decided disadvantage with respect to property by summarily dismissing his wife. Unlimited right of divorce belongs to the man in some parts of China,[744] and with many African[745] and American[746] tribes. "The Aleuts used to exchange their wives for food and clothes. In Tonga a husband divorces his wife by simply telling her to go." In "Yucatan a man might divorce his wife for the merest trifle, even though he had children by her."[747] Among the California Yurok "divorce is very easily accomplished at the will of the husband, the only indispensable formality being that he must receive back from his father-in-law the money which he paid for his spouse."[748] If dissatisfied with his wife, the young Gallinomero of the same region may "strike a bargain with another man" and sell her "for a few strings of shell-money."[749] In the so-called "straw dance" the Dakota husband may "throw away" the wife whom he no longer desires. He may even take several wives in order to dispose of them in this way; thus adding to his importance and giving evidence of his "strong heart."[750] Among the Abipones divorces are as frequent "as changing of the dress in Europe." If "their wives displease them, it is sufficient; they are ordered to decamp." The husband's right is unrestrained by the law; but, "appointing a drinking-party, wherein the memory of injuries is refreshed in the minds of the intoxicated guests, the relations fiercely avenge the dishonor done to the repudiated wife."[751] The Tasmanian husband, when dissatisfied or when a liberal offer is made, may "transfer" his spouse like a slave; but in Luzon a divorce is more difficult, for the wedding gifts must be redistributed among the donors.[752] With "the ancient Hebrews, Greeks, Romans, and Germans, dislike was regarded as a sufficient reason for divorce."[753] Such is also the case on the island of Nias;[754] while among the Galela and Tobelorese the man may put away his wife on account of laziness; and elsewhere he may do the same because she is tiresome or because she lacks skill for household service.[755]

[743] For these cases see WESTERMARCK, op. cit., 520-23; POST, Familienrecht, 253, 254; idem, Afrikanische Jurisprudenz, I, 433-36; idem, Grundlagen, 268, 269; FRIEDRICHS, "Familienstufen und Eheformen," ZVR., X, 251, 252; KOHLER, "Studien," ibid., V, 340, 341 (Mongols and Tunguse); idem, "Ueber das Recht der Koreaner," ibid., VI, 403; and LETOURNEAU, L'évolution du mariage, 286 ff., 289 ff.

[744] MCLENNAN, Studies, I, 141, 142, note; POST, Familienrecht, 253. But this is not the general rule, as below shown.

[745] POST, Afrikanische Jurisprudenz, I, 433 ff.; WAITZ, Anthropologie, II, 109, 115 (only the woman legally capable of adultery), 120; MUNZINGER, Ostaf. Studien, 320 (Beni Amer).

[746] POST, Familienrecht, 253.

[747] WESTERMARCK, op. cit., 520, 521.

[748] POWERS, Tribes of Cal., 56.

[749] Ibid., 178.

[750] After the wife is "thrown away" the husband becomes a "young man" again, and seeks new partners: BECKWITH, "Customs of the Dakotahs," Rep. Smith. Inst., 1886, Part I, 256. Cf. also on the man's absolute right of divorce, DORSEY, "Siouan Sociology," _XV. Rep. of Bureau of Eth._, 225.

[751] DOBRIZHOFFER, Account, II, 210-12, 96, 138; cf. GUIMARÃES, "Memoria," Revist. Trim. Hist., VI, 307.

[752] BONWICK, Daily Life and Origin of the Tasmanians, 73, 74. The Tasmanian woman, he adds, even when divorced "was by no means free, as the tribe exercised jurisdiction" in her "affairs and the disposal of her person. She soon came under bondage again to another man, though perhaps to a younger than her first affianced one; as the young fellows were in most instances supplied with their first partners from the overflowing establishments of their seniors, or by the grant of a cast-off bit of property."

[753] WESTERMARCK, op. cit., 520, 521, citing Deut. 24:1; MEIER AND SCHÖMANN, Der attische Process, 511; MCKENZIE, Studies in Roman Law, 123 ff.; GRIMM, Rechtsalterthümer, 454. On the Hebrews see also LETOURNEAU, op. cit., 302, 303; GLASSON, _Le mariage civil et le divorce_, 145 ff.

[754] POST, Familienrecht, 253, 254; RIEDEL, in ZFE., XVII, 78.

[755] "In den Gallareichen kann der Mann die Frau verstossen, weil sie ihm langweilig geworden oder zu den häuslichen Geschäften nicht tauglich ist. Will er dagegen keine Scheidung, sondern nur Trennung, so ergiebt sich die Frau der Prostitution und kann vom Gatten für sich und ihre illegitimen Kinder Wohnung und die nöthigen Nahrungsmittel beanspruchen."--POST, Familienrecht, 253, 254. In New Caledonia, likewise, the wife may be put away because she bores her husband: LETOURNEAU, op. cit., 285.

Under the existing law of Islâm the woman has gained a limited right of divorce. By the form called chol she may buy her release; and in this case "a restoration of the marriage bond is impossible." Again, for certain specified faults of the husband, she is granted a separation through fasch, or judicial decree.[756] On the other hand, by li'an, or solemn oath before the cadi, a husband is able to put away the spouse whom he believes to be unfaithful;[757] but in general the right of the man to reject the woman without assigning any cause whatever is absolutely unrestrained. The great majority of divorces among Moslem peoples take the form of talâq, or repudiation. It is only necessary for the husband who is tired of his wife to say to her "mutállaka," "Thou art dismissed."[758] In harmony with the old Arabian custom the procedure by talâq may consist of a "triple declaration" or three successive divorces. After the first pronouncement of the formula the repudiated woman remains three months in her harem at the man's cost, and he is at liberty to take her back if he will. Indeed, a single tender glance or word of concession is sufficient to restore the marriage. Should he not reclaim her until the specified term is passed, he may then do so only in case she has not already taken a new husband, and by paying her a "second time the full amount of the morning-gift as stipulated at their marriage." A second or even a third separation from the same wife may be had by repetition of this process; but the third declaration, unlike the other two, is irrevocable, definitively dissolving the marriage bond.[759]

[756] The wife is entitled to a divorce in this way when the husband (1) leaves her without support; (2) accuses her falsely of unfaithfulness; (3) refuses to acknowledge the child which she has borne him; (4) when he abandons the faith; or (5) fails in "marital duty": HELLWALD, Die mensch. Familie, 409. But in practice little use is made of this form, the woman preferring instead to declare before the judge that she is in a condition of matrimonial "insurrection," by which means the husband is usually led to "repudiate" her: idem, loc. cit.

[757] The procedure by oath is allowed when the husband is persuaded, but cannot prove, that the wife is pregnant by another man; and the action must precede the accouchement. The wife may take a similar oath that the husband's belief is unfounded: HELLWALD, op. cit., 409.

[758] But other phrases, such as "Cover thee with thy veil," or "Seek another man," may be employed: HELLWALD, op. cit., 409. Compare the three formulæ used in Algiers: LETOURNEAU, op. cit., 297.

[759] HELLWALD, op. cit., 410, 411; following especially VINCENTI, Die Ehe im Islâm, 22, 23. After the third divorce or declaration there is still a way in which the man can get his wife back when she, in due legal form, has married another man, and has been repudiated by him. This procedure is usually collusive by means of a "straw husband": HELLWALD, loc. cit., citing EFENDI, Türkische Skizzen, II, 15. In general see UNGER, Die Ehe, 48-50; LETOURNEAU, op. cit., 289-99, on the triple declaration among Mohammedan peoples of Africa.

Among a great many peoples, even those comparatively little advanced in general culture, the husband is permitted to divorce his wife only for definite reasons.[760] The causes of legal divorce most constantly recurring are adultery and sterility. In a great many cases divorce is absolutely forbidden after a child, usually a son, is born. It should be carefully noted that many of the alleged examples of divorce on the ground of sterility are, strictly speaking, not divorces at all; but rather illustrations of the so-called "proof-marriages" so often met with in all parts of the world. Not until the term of probation is "blessed" by the arrival of offspring is the "marriage" in such cases regarded as complete, though this may not always be the implied condition. With the proof-marriages are sometimes described as identical in character the "time-marriages" found among many peoples; but this form of union is, properly speaking, usually a real marriage not dependent for its consummation upon the birth of a child, being stipulated in advance for a certain term.[761] Besides the two leading grounds of divorce already mentioned, many others, some of them trivial, are prescribed by the laws of various peoples. Such are mistreatment, deformity, laziness, desertion, and incompatibility of temper. Sometimes the consent of the chief or other public authority is requisite. So, among the Hottentots, a man may divorce his wife only "upon shewing such cause as shall be satisfactory to the men of the kraal where they live;"[762] and among the aborigines of Victoria, as already seen, a childless wife may be dismissed for serious misconduct only when the sanction of the tribal chief is obtained.[763] By Chinese law divorce must be granted in case of any of the numerous impediments[764] to marriage; or when the wife is guilty of adultery. For that offense the aggrieved husband may kill the offending wife and her paramour, if he catch them in flagrante delicto. But should the woman not be slain, she is punished, and the husband may drive her away or even sell her as a concubine, provided he has not pandered to the crime or does not sell her to the guilty man.[765] Furthermore, a marriage may be dissolved by mutual agreement;[766] and the husband is entitled to a divorce when the wife strikes him, is addicted to drunkenness or opium smoking, has been defiled before marriage, or when she leaves his house against his will.[767] Besides all these grounds, established by statute or recent usage, Confucius allows the husband a divorce for any of seven faults of the wife: barrenness, wantonness, inattention to parents-in-law, talkativeness, theft, jealousy, and inveterate disease such as leprosy.[768] But these grounds will not always warrant a separation. "They may be outweighed by particular merits of the woman or by special circumstances. If the wife has mourned three years for the husband's parents; if the family has grown rich during the marriage; or if the wife has no longer relatives to receive her, then the seven assigned grounds fail, the divorce is not only forbidden but void, and the husband must retain his wife."[769] This is not the only wise and righteous provision of the Chinese law, however despotic as a rule may be the husband's power. Normally the wife cannot sue for divorce; still practically she enjoys the right of separation in several important contingencies. Under judicial approval, for instance, she may release herself from the marriage bond in case of three[770] years' desertion without word from her husband. So likewise, when she suffers grave insult from the husband's parents, she may return to her own family, reclaim her dotal gift, and demand a contribution for her support.[771]

[760] These cases are discussed by POST, Familienrecht, 253-55; idem, Grundlagen, 269; idem, Afrikanische Jurisprudenz, I, 439-41; LETOURNEAU, op. cit., 286 ff.; WESTERMARCK, op. cit., 523, 524; FRIEDRICHS, "Familienstufen und Eheformen," ZVR., X, 251.

[761] On these so-called "Zeitehen" and "Ehen auf Proben," in addition to the references, chap. ii, p. 49, note 2, see POST, Familienrecht, 75-79; idem, Afrikanische Jurisprudenz, I, 321-23; STARCKE, Primitive Family, 258-60; WESTERMARCK, op. cit., 523, 524, who apparently includes these cases under the head of divorce for sterility. "Proof-marriages" are said even now to be customary in Yorkshire: BUNSEN, in ZFE., XIX, 376; POST, op. cit., 77; and a good example is afforded by the Scotch "hand-fasting" prevalent in the eighteenth century: "Two chiefs agreed that the heir of the one should live with the daughter of the other as her husband for a year and a day; if at the end of that time the woman had become a mother, or, at any rate, if she was pregnant, the marriage was regarded as valid, even if unblest by a priest;" otherwise the connection was dissolved: STARCKE, op. cit., 260; SKENE, The Highlanders of Scotland (London, 1837), 166. Cf. TEGG, The Knot Tied, 222, 223; BRAND, Popular Antiquities, II, 87, 88; BULLINGER, The Christen State of Matrimonye (1541), 48, 49; WOOD, The Wedding Day, 113, 184, 185; STILES, Bundling, 17, 19. For examples of temporary unions among the American Indians see WESTERMARCK, op. cit., 518, 519. Such marriages are found among the Winnebagoes: THWAITES, in Wis. Hist. Coll., XII, 427.

[762] WESTERMARCK, op. cit., 524: ap. KOLBEN, The Present State of the Cape of Good-Hope (London, 1731), I, 157. However, this rule may in practice have little meaning: see POST, Afrikanische Jurisprudenz, I, 435, who also cites Kolben.

[763] DAWSON, Australian Aborigines, 33.

[764] For the impediments to matrimony, all of which are diriment, see MÖLLENDORFF, Das chin. Familienrecht, 9-20.

[765] MÖLLENDORFF, Das chin. Familienrecht, 32. In China a man is legally incapable of adultery. If the husband slay either the man or the woman taken in flagrante delicto, he must do so on the instant; "though it is also allowable for the husband to kill the adulterer outside the house, if it be in chase. But if the husband first ties up the adulterer, and then kills him, he will be guilty of a transportable offence.... If the husband kills the wife afterwards, he will be liable to three years' transportation and 100 blows."--ALABASTER, Chinese Criminal Law, 187, 188. If the paramour kills the husband, the wife is strangled, whether she knew of the crime or not, provided the husband has not consented to the adultery. Grace is shown the woman only "when the murder was sudden and unpremeditated;" but then only in case that she "fly to the rescue, and give the alarm, and do her best to bring the murderer to justice by denouncing him to the authorities."--ALABASTER, op. cit., 194. The price of the guilty wife sold as a concubine falls to the state: MÖLLENDORFF, 32.

[766] The agreement, however, must be in good faith. Should the wife plan the divorce so as to form a punishable relation with another man, it is void, and the husband may retain the woman or sell her to another as in the case of unfaithfulness: KOHLER, "Aus dem chin. Civilrecht," ZVR., VI, 376.

[767] MÖLLENDORFF, op. cit., 32; HELLWALD, op. cit., 380, 381; ALABASTER, op. cit., 182 ff.; GROSSE, Die Formen der Familie, 225 ff.; KATSCHER, Bilder aus dem chin. Leben, 90 ff., passim.

[768] If he puts away his wife without just cause, he is to receive eighty blows with the bamboo and take her back: WAKE, Marriage and Kinship, 232; KOHLER, loc. cit., 375; WESTERMARCK, op. cit., 523; LETOURNEAU, op. cit., 300, 301; DOOLITTLE, Social Life of the Chinese, I, 106, 107.

According to TSCHENG-KI-TONG, China und die Chinesen, 55, barrenness is the only serious ground of divorce in China, and even of this little use is made, particularly by the aristocracy; but this view is not sustained by other evidence, divorce being frequent among the lower classes: HELLWALD, op. cit., 380, 381.

[769] KOHLER, loc. cit. On the other hand, the interpretation of these rules may often be "too elastic" in favor of the man. In one of the old Chinese books, according to WESTERMARCK, op. cit., 524, 525, "when a woman has any quality that is not good, it is but just and reasonable to turn her out of doors.... Among the ancients a wife was turned away if she allowed the house to be full of smoke, or if she frightened the dog with her disagreeable noise": citing NAVARETTE, An Account of the Empire of China (London, 1704), 73.

[770] According to ALABASTER, op. cit., 190, "it would seem that the husband can claim no marital rights, if he has been for five years in exile, without writing to his family, and his wife has in the meantime married again, although the law is not clear."

[771] KOHLER, loc. cit., 375, 376. The woman has also the right of divorce when the husband is a leper or becomes such after marriage; when he is impotent; and either party may claim the right when deceived by a false allegation in the marriage contract: MÖLLENDORFF, op. cit., 32, 33; ALABASTER, op. cit., 182.

See further on Chinese divorce and marriage, LEGGE, Life and Teachings of Confucius, 106, passim; HUC, Chinese Empire, II, 218-20, 262, 263; WAKE, Marriage and Kinship, 229-35.

In modern Japan divorce is regulated according to the principles of western law; but formerly the husband's power was governed, as in China, by the rules of Confucius.[772] Furthermore, in spirit the Aztec law of divorce bears a striking resemblance to that of China. Only in special cases, not now understood, had the woman a right of separation; and the husband could put away his wife only for definite reasons, such as sterility and certain defects of character, as when she proved herself careless, impatient, lazy, or quarrelsome. Divorce, however, was discouraged; and even when a legal reason was alleged, it could not be effected without a judicial decree. The decree did not declare the separation; it merely allowed the plaintiff in the matter "to do what he should find good." Thus permission was given for divorce; but the judge avoided pronouncing the separation in direct words.[773]

[772] KOHLER, "Studien aus dem japanischen Recht," ZVR., X, 449. Cf. WAKE, op. cit., 233, note; WESTERMARCK, op. cit., 525; HELLWALD, _Die mensch. Familie_, 383-86; GROSSE, _Die Formen der Familie_, 228-31.

[773] KOHLER, "Das Recht der Azteken," ZVR., XI, 60; KLEMM, Kulturgeschichte, V, 35. Among the Aztec Otomis the parties could separate after the first night; but, possibly, this is a case of proof-marriage; and in Michoacan the same rule prevailed, if they swore that they had not "seen one another": KOHLER, loc. cit., 61. The divorce laws of the Chins or Khyengs, in farther India, are particularly interesting; and in some respects they are similar in principle to those of the Chinese and Aztecs: KOHLER, "Das Recht der Chins," ZVR., VI, 186 ff., 191 ff.

5. Finally, in further illustration of the endless variety of popular customs, it must be noted that among many peoples the wife also has the right of divorce. Often, as already seen, she may leave her husband at pleasure or on the slightest pretext. It needs but a glance at the usages of the American Indians in this regard to perceive that the lot of the married woman among barbarous or even savage tribes is not always so dark as it is frequently painted;[774] and many similar proofs elsewhere exist.[775] Among the inland Columbians, according to Bancroft, "either party may dissolve the marriage at will."[776] A similar rule prevails with the Moxos of South America, the tribes of California, as well as among the Iroquois and their neighbors.[777] "If a Bonak wife gets up and leaves the man, he has no claim ever after on her;"[778] and, according to Schoolcraft, when the Navajo woman marries, "she becomes free, and may leave her husband for sufficient cause."[779] The Guanan[780] and Guatemalan[781] wife is equally privileged; and the Sioux and other Dakota women are often notoriously independent, even beating their husbands for unfaithfulness, and for this or other just cause returning to their own kindred.[782] Sometimes the wife has the right of divorce only on definite grounds, which may differ from or be the same as those permitted to the husband.[783] Often the reasons which satisfy the moral sense of the community are very slight; at other times they are grave and few in number. Among the Shans, "should the husband take to drinking or otherwise misconducting himself, the woman has the right to turn him adrift, and to retain all the goods and money of the partnership."[784] In "Eastern Central Africa divorce may be effected if the husband neglects to sew his wife's clothes, or if the partners do not please each other."[785] Theoretically among the Athenians the woman could demand a divorce for mistreatment, "in which case she had merely to announce her wish to the archons;"[786] while the Kafir wife "who is beaten or not provided with sufficient food and clothes is entitled to return to her parents."[787] In fact, the right of the woman to repudiate her husband for mistreatment is alleged to be the general rule according to negro custom.[788] Even by modern Mohammedan legislation "divorce may, in certain cases, take place at the instance of the wife, and, if cruelly treated or neglected by her husband, she has the right of demanding divorce by authority of justice."[789]

[774] Cf. SPENCER, Principles of Sociology, I, 722, 723; MASON, Woman's Share in Primitive Culture, 229, for suggestive remarks in this connection. WESTERMARCK, op. cit., 526-29, discusses this topic with characteristic minuteness, giving in a note a list of peoples, with authorities, among whom the wife has the right of divorce absolutely or on conditions.

[775] So in Tahiti, the Sandwich Islands, the Marianne and Caroline groups, the Indian Archipelago, in Africa, and elsewhere; see the examples of free divorce at the option of either party and the authorities already mentioned above. Cf. LETOURNEAU, op. cit., 287.

[776] BANCROFT, Native Races, I, 277.

[777] Ibid., 412; MORGAN, Ancient Society, 454 (Iroquois); LETOURNEAU, op. cit., 288.

[778] WESTERMARCK, op. cit., 527: ap. SCHOOLCRAFT, Indian Tribes, IV, 223 ff.

[779] WESTERMARCK, op. cit., 527: ap. SCHOOLCRAFT, Indian Tribes, IV, 214. But it appears to be a point of honor for the abandoned husband to avenge himself by killing someone: BANCROFT, op. cit., I, 512; LETOURNEAU, op. cit., 288.

[780] WESTERMARCK, op. cit., 527.

[781] BANCROFT, op. cit., II, 672; LETOURNEAU, op. cit., 288.

[782] So among the Santals (Dakotas): LETOURNEAU, loc. cit.

[783] For this class of peoples see POST, Familienrecht, 250, 254-58; idem, _Afrikanische Jurisprudenz_, I, 436-39; WESTERMARCK, op. cit., 526-29.

[784] WESTERMARCK, op. cit., 527, 528: ap. COLQUHOUN, Amongst the Shans, 295.

[785] WESTERMARCK, op. cit., 528: ap. MACDONALD, Africana, I, 140.

[786] WESTERMARCK, op. cit., 528, 529; GLASSON, Le mariage civil et le divorce, 152 ff.; UNGER, Die Ehe, 60; PLUTARCH'S Lives (London, 1890), Solon, 68. Primitively the Grecian wife had little liberty in this regard; even later it was always difficult to enforce her right of divorce; and repudiation was regarded as a disgrace: LECKY, History of European Morals, II, 287, 289; LETOURNEAU, op. cit., 304.

[787] WESTERMARCK, op. cit., 528, 529; WAITZ, Anthropologie, II, 389; POST, Afrikanische Jurisprudenz, I, 436. But in case of the Kafirs, the chief decides whether the woman has just cause: POST, op. cit., 438.

[788] "Wird die Frau misshandelt oder vernachlässigt, so kann sie die Lösung der Ehe verlangen; dies ist allgemeines Negerrecht."--KOHLER, "Ueber das Negerrecht, namentlich in Kamerun," ZVR., XI, 441, 442. See also HENRICI, "Das Recht der Epheneger," ibid., 135; BASTIAN, Rechtsverhältnisse, 179 (Gold Coast).

[789] WESTERMARCK, op. cit., 528, 529: ap. AMÍR' ALÍ, Personal Law of the Mahommedans (London, 1880), chaps. xii ff.

"According to the Talmudic Law, the wife is authorized to demand a divorce if the husband refuses to perform his conjugal duty, if he continues to lead a disorderly life after marriage, if he proves impotent during ten years, if he suffers from an insupportable disease, or if he leaves the country forever."--WESTERMARCK, 528; GLASSON, op. cit., 149 ff. Consult also AMRAM, The Jewish Law of Divorce, 63-77, who gives an interesting discussion of the woman's power of divorce; and, besides the causes just named, mentions also "refusal to support," "apostasy," "wife-beating," when the wife is not at fault, and "false charge of ante-nuptial incontinence." Cf. LETOURNEAU, op. cit., 303.

II. THE FORM OF DIVORCE

The form of divorce, like the rules relating to the right and its conditions, varies greatly among the races of mankind. Very frequently, usually among the lowest peoples, it takes place without any ceremony.[790] Sometimes, however, the procedure is fixed by law or custom. A symbolical act is occasionally sufficient, as with the east African Wazaramo, where the husband by way of divorce hands the wife a piece of holcus reed, on receiving which she must at once leave the house or be driven out.[791] The Unyoro husband observes a similar rite.[792] It is likewise a private transaction in Morocco, where the man rejects the woman by a bill of divorce. The same procedure may be employed in China; and a three-fold proclamation before witnesses is adequate among the Somali.[793] In Dawan (west Timor) it takes place in a council composed of the relations of the man and wife, where the cause is weighed and determined; but in this assembly neither the chiefs nor the eldest have any voice.[794] Similar councils are common among African tribes.[795] In many instances, however, exactly the opposite rule prevails, the decision of the "eldest," the "chiefs," or of some other magisterial, priestly, or judicial authority being requisite for a legal separation.[796]

[790] For examples see POST, Familienrecht, 258; idem, Afrikanische Jurisprudenz, I, 452.

[791] Ibid., I, 452.

[792] Here the man divorces his wife by cutting in two a piece of "Rindenstoff, von dem er eine Hälfte behält und eine Hälfte dem Vater der Frau zuschickt."--POST, loc. cit.

[793] MÖLLENDORFF, Das chin. Familienrecht, 33; POST, op. cit., I, 452.

[794] POST, Familienrecht, 259.

[795] POST, Afrikanische Jurisprudenz, I, 453.

[796] In the Indian Archipelago a priest is necessary, for instance, on the islands of Gorong and Seranglao; among the Buginese; as also with the Makassars, where he receives 3 gulden for his trouble: POST, Familienrecht, 259, 260.

III. THE LEGAL EFFECTS OF DIVORCE

Not less diversified are the customs governing the effects of divorce; and here, as in the case of its varying forms and conditions, one is almost as often surprised by the reasonableness and stability of early institutions as he is shocked at their harshness or injustice when regarded from the civilized standpoint. In the disposal of the children the existing system of kinship is very widely determinative. Among a great many peoples, in case of separation, the children follow the father or the mother according as mother-right or father-right prevails;[797] and where a mixed system, or rather a coincidence of mother-right and paternal authority,[798] is found, or else relationship is cognatic, they are divided between the parents or their kindred.[799] The division is determined by a variety of rules among different peoples. Often they are equally divided, regardless of sex.[800] Sometimes, as in Bulgaria,[801] Burma,[802] and among the Natchez Indians,[803] the daughters follow the mother and the sons remain with the father. In still other cases, as in certain South Slavonian districts, the father takes the adult children, while those of tender years are left in the mother's hands. Such is the rule in Zara and in Bosnia.[804] In Lika, according to Krauss, when all the children are males, the mother receives the minors, if the father consents; but when they are of both sexes, the sons follow the father and the daughters the mother. In this last case, however, the man is required to pay the divorced woman whatever is needed to supply the bridal outfit of the daughters when they reach marriageable age. When it happens at the time of separation that all the children are grown-up daughters, they are allowed a free choice between the parents. Should none remain with the father, the mother and daughters are entitled to all the property gained during marriage.[805] Often in case of divorce the children belong to the innocent party;[806] unless children are regarded as a burden, when the opposite rule prevails;[807] or unless the system of kinship determines the disposition of the offspring, when an equitable adjustment is otherwise made. Thus among the African Fantis of the Gold Coast--where by law the children belong to the mother's family--in case of divorce through fault of the woman, the man is entitled to a sum equal to 22s. 6d. for each child; and when by stipulation the sons remain with the father, he is nevertheless not permitted to sell them or put them in pawn. If the divorced wife cannot restore to the husband the price paid for her, the children are left with him as a pledge for the debt until by their service they have paid it with 50 per cent. interest. In this way, we are told, children often become slaves for life to their own father and as such are even transmitted to his heirs.[808]

[797] So in case of divorce among the Omahas, where, as DORSEY believes, "father-right has succeeded mother-right," the woman cannot take the children with her if the man is unwilling; although in practice they "are sometimes taken by their mother, and sometimes by her mother or their father's mother."--"Omaha Sociology," III. Rep. of Bureau of Eth., 225, 262.

In China a divorce completely dissolves the marriage; the woman returns to her family, if it will receive her; the children remain with the father; and the purchase price is returned to him, unless his conduct has caused the divorce. When her family declines to receive the woman she becomes sui juris: MÖLLENDORFF, Das chin. Familienrecht, 34.

[798] See chap. i, 21 ff., above.

[799] POST, Familienrecht, 260-62; idem, Afrikanische Jurisprudenz, I, 447, 448; idem, Grundlagen, 276, 277.

[800] So in the Malay Rawas, where kinship is cognatic. Here, in case of an odd number, the undivided child is left temporarily with the mother, but the father has the right on the payment of the equivalent of 8 reichsthaler to claim the child when it no longer needs the mother's care: POST, Familienrecht, 261, 262.

[801] KRAUSS, Sitte und Brauch der Südslaven, 297.

[802] When the divorce is by common consent: KOHLER, in ZVR., VI, 172; POST, Familienrecht, 262. For African examples see POST, Afrikanische Jurisprudenz, I, 449.

[803] PRATZ, Hist. de la Louisiane, II, 387.

[804] KRAUSS, Sitte und Brauch der Südslaven, 295, 296.

[805] Ibid., 295. Sometimes all the children go to the father or to the house-community, the mother receiving back the dotal gift: ibid., 296, 297.

[806] POST, Grundlagen, 277; idem, Afrikanische Jurisprudenz, I, 448 ff.; idem, Familienrecht, 262, 263.

[807] Thus in Morocco the husband who puts away his wife must keep the children; POST, Afrikanische Jurisprudenz, I, 449.

[808] Ibid., I, 448. Cf. LETOURNEAU, L'évolution du mariage, 286.

Very similar in variety and character are the rules governing the disposition of the property when a marriage is dissolved. These are mainly dependent in each case upon the general principles of the family law relating to property rights.[809] Sometimes, as among the South Slavonians,[810] each receives back the property which he had at the time of the marriage, while the common earnings are divided, though not always in equal portions.[811] But as the most general rule responsibility for the divorce is of vital importance in determining the course to be pursued. The man or the woman who arbitrarily dissolves the marriage, or whose guilty conduct is the cause of separation, usually suffers a decided disadvantage. Thus the woman must restore the dotal gift or the presents received from her husband; and the purchase price must be repaid by herself or by her kindred. On the other hand, the man who puts away his wife without just cause must often forfeit all claim to restitution of the bride-money, perhaps lose his children, and even suffer other penalties besides, such as the payment of alimony.[812]

[809] POST, Grundlagen, 276.

[810] So in Lika. In Stara Pazva the woman receives back her dotal portion; and in Stro[vs]inci common gains are divided: KRAUSS, op. cit., 295, 296; POST, Familienrecht, 316.

[811] In the archipelago of Seranglao and Gorong the lands and houses which each party had before the marriage are retained by each, and the winnings are divided, the man receiving two-thirds and the woman one-third: POST, loc. cit.

[812] HENRICI, "Das Recht der Epheneger," ZVR., XI, 135 (alimony). For many examples of these rules see POST, Familienrecht, 316-20; idem, Afrikanische Jurisprudenz, I, 441-47. Thus in Morocco, should the husband put away his wife without cause, he must give her in presence of the judge a present (etwas Beliebiges) in value to suit himself; and a similar present is adequate for either party divorcing the other among the Moorish Braknas. In the East African city of Harar the husband responsible for the separation loses the purchase price, pays the woman a sum equal to it in value, and besides is obliged to support her outside of his dwelling during a term to be fixed by the cadi: POST, Familienrecht, 320; idem, Afrikanische Jurisprudenz, I, 443, 445. In the South Slavonian Bocca, Crnagora, and Herzegovina the husband who puts away his wife because she is affected by a disease is usually required to give her a lifelong support; and ordinarily, when he is accountable for the separation, he must pay a fine of from 50 to 100 thaler: KRAUSS, op. cit., 567. For various illustrations see LETOURNEAU, op. cit., 289 ff.

Especially interesting among uncivilized or backward races are the effects of divorce with respect to second marriage or the remarriage of the parties to one another. Everywhere, apparently, the man who puts away his wife or has been divorced by her is allowed to contract a second marriage immediately, or, at any rate, after a very short interval.[813] This follows almost as a matter of course where wife-capture or wife-purchase exists, or where polygyny prevails.[814] But with regard to the second marriage of a divorced woman usage greatly varies. Among a number of peoples she is free to marry again, if she likes, even when she is responsible for the separation.[815] Generally, however, her freedom is restricted in this regard; and this is especially apt to be the case where wife-purchase exists; for then the legal rights of the husband in the woman are by no means extinguished by the dissolution of marriage. Her status as a wife must thus be distinguished from her position as property or as the object of contract. Accordingly for this or some other reason the woman who puts away her husband is sometimes absolutely forbidden to form a second marriage. Such is the case among peoples so little advanced as the Ashantees and Hottentots; while the Banjun wife who divorces her husband may not marry again in the same village where she found her first spouse.[816] Still more rigorous is the rule in Samoa, where the divorced woman is forbidden to remarry even after her husband's death.[817] Between the extremes of entire freedom and entire prohibition the remarriage of a woman is hampered by a variety of conditions, some simple and others severe. The Kafir woman may be married again by her father when she has divorced her husband with consent of the tribal chief. Sometimes the second marriage depends on the return of the marriage-gift or the purchase price; or the woman must wait a certain period, as three months or a year, before contracting it.[818] In several instances, doubtless as the result of purchase, after returning to her father's house she remains at her husband's disposal until he formally sets her free; while in yet other cases she may be reclaimed by him within a certain definite time. So with the old Arabians the purchased wife was looked upon as the husband's property, and hence divorce did not release her from his claims.[819] In Islam, as already explained, where the ancient Arabian rule of triple declaration of divorce still survives, a man who has divorced his wife by a single or even a second declaration of the formula "can take her again within three months without asking her consent."[820] Among the Bedouins, in like spirit, when the divorce takes place at the instance of the woman, the man may refuse to repeat the formula of separation without which she cannot contract a second marriage.[821] Very frequently the second marriage, whether of a widow or a divorced woman, is not looked upon as so important as the first. The wedding ceremonial and festivities are less marked; the customary time of seclusion after the nuptials is shorter; the bride-price is much smaller; or the wife has a less advantageous position with respect to property.[822] On the other hand, the widow or divorced woman who will remarry has sometimes an important compensation for the loss of social prestige, since she may freely bestow her hand in choosing a second mate.[823]

[813] Thus, among the Moors of Morocco, who almost all practice monogamy, the man who rejects his wife is not permitted to marry again within four months: POST, Afrikanische Jurisprudenz, I, 450.

[814] Cf. the suggestion of POST, loc. cit.

[815] See the examples enumerated in POST, Familienrecht, 264; idem, Afrikanische Jurisprudenz, I, 453; among them are the people of Tonga, Tahiti, and Unyoro; also Dawan (West Timor) when the divorce is through the fault of the husband.

[816] POST, Afrikanische Jurisprudenz, I, 450.

[817] WAITZ-GERLAND, Anthropologie, VI, 129; POST, Familienrecht, 263.

[818] Thus in the African Sarae the divorced woman must wait two months before remarriage: MUNZINGER, Ostaf. Studien, 387; among the Beni Amer, three months; while the Marea woman is obliged to refrain for a year: ibid., 241, 321.

[819] See especially on Arabian divorce, SMITH, Kinship and Marriage, 91 ff., who emphasizes the effect of wife-purchase. Compare POST, Familienrecht, 263. Among the Kabyles of Algiers for mistreatment the woman has the right of "insurrection;" she may return to her father's house; but without the consent of her husband she cannot remarry: LETOURNEAU, L'évolution du mariage, 295. Cf. HANOTEAU ET LETOURNEUX, Kabylie, II, 159, 164, 177 ff. The custom of insurrection appears to be general in Islam: HELLWALD, Die mensch. Familie, 409.

[820] SMITH, op. cit., 93.

[821] KLEMM, Kulturgeschichte, IV, 151; POST, Familienrecht, 263, 264.

[822] See the interesting proofs for various African tribes in POST, Afrikanische Jurisprudenz, I, 454-57.

[823] Ibid., 455. Sometimes, as among the equatorial tribes of West Africa, the widow shows a repugnance to second marriage: returning to her family, she never marries again: ibid., 456.

Perhaps as a general rule the divorced man and woman are as free to remarry each other as they are to contract a second marriage with other persons;[824] but sometimes the reunion is dependent upon the observance of special legal formalities, or it can take place only after a fixed interval.[825] In rare instances, as among the ancient Aztecs, the remarriage of a divorced couple is absolutely forbidden.[826]

[824] POST, Familienrecht, 265; idem, Afrikanische Jurisprudenz, I, 453, 454.

[825] Thus in Dawan (West Timor), when peace is made between the divorced couple, the party who caused the separation must pay the parents of the other five swine and five pieces of linen. A year's interval must elapse with the African Peulhs of Futa-Jallon. In Unyoro (Africa) the reunion is celebrated by slaughtering a beef; and among the Berbers of Dongola the divorced man gives the woman two pieces of cotton stuff: POST, Familienrecht, 265; idem, Afrikanische Jurisprudenz, I, 453.

[826] KOHLER, "Das Recht der Azteken," ZVR., XI, 61; Cf. also KLEMM, Kulturgeschichte, V, 35; POST, Familienrecht, 265.

IV. FREQUENCY OF DIVORCE

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]

[827] STARCKE, Primitive Family, 258, 259.

[828] For examples see FRIEDRICHS, "Familienstufen und Eheformen," ZVR., X, 251, 252.

[829] Divorce is rare among the Muskogi and Natchez (Florida-Dakota), the Caribs, the aborigines of Paraguay and Nicaragua, and the Eskimo: Friedrichs, loc. cit.; WESTERMARCK, Human Marriage, 524. Cf. POWERS, Tribes of Cal., 239 (Wintun); DORSEY, Siouan Sociology, 243 (rare in the better class).

[830] For China see HELLWALD, _Die mensch. Familie_, 380, 381; TSCHENG-KI-TONG, _China und die Chinesen_, 55; WAKE, Marriage and Kinship, 232; DOOLITTLE, Social Life of the Chinese, I, 106, 107; MEDHURST, in Trans. Royal As. Soc., China Branch, IV, 27: WESTERMARCK, op. cit., 525. For Japan see WAKE, op. cit., 233; WESTERMARCK, op. cit., 525; and for the Aztecs, BANCROFT, Native Races, II, 263-65; WAITZ, Anthropologie, IV, 132.

[831] Cf. the remarks of WAKE, op. cit., 218; and compare RATZEL, Hist. of Mankind, II, 434 (Zulus); and SARASIN, Die Weddas von Ceylon, I, 458, 468, 469.

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]

[832] WESTERMARCK, op. cit., 531.

[833] WESTERMARCK, op. cit., 19, gives examples.

[834] WESTERMARCK, op. cit., 531, and the authorities cited in the notes. The same influence was a check upon divorce in Athens: LETOURNEAU, op. cit., 304.

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]

[835] On the conservative influence of wife-purchase see WESTERMARCK, op. cit., 532, 535, 536; and for curious and instructive illustrations of the effects of purchase read especially the detailed account of the law of divorce among the Kabyles of Algiers in LETOURNEAU, op. cit., 292-96. The man has the sole right of divorce. As a condition of setting the woman free he may demand the lefdi, or price of redemption, and fix such other terms as he pleases; as that the lefdi shall be double or triple, if she marry such or such a man. The sum may thus be so large as to amount to a prohibition of marriage. On the other hand, a liberal price may be an inducement to free the woman. Among some of these tribes the amount of the lefdi is fixed by law, usually at a sum higher than the thâmanth, or purchase price of a virgin or a widow, so as by working upon the cupidity of the husband to induce him to pronounce the triple formula and thus suffer the woman to contract a new marriage. The children under all circumstances follow the father.

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 her husband 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]

[836] MASON, Woman's Share in Primitive Culture, 229, 230.

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VI. 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.

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