A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
respect to the liberty of divorce is remarkable. This may be due in part to the fact that primarily marriage does not rest so much upon the sexual instinct as upon family needs.[827] In some instances, where dissolution of the marriage is free to either party, or where it is the peculiar right of the man, divorce is exceedingly rare.[828] The American Indian tribes are conspicuous in this regard.[829] Sometimes there is a strong social sentiment against it. Such is the case in China. Formerly among the Japanese, like the ancient Aztecs, divorces were infrequent;[830] and among many less advanced peoples, such as the Afghans, the Veddahs, or even the Zulus, the sentiment of love is doubtless a stronger check upon instability of the family than is commonly supposed.[831]
The rules governing the division of property are important in this connection; for, as Westermarck suggests, the selfish interests of the husband "prevent him from recklessly repudiating his wife. In many instances divorce implies for the man a loss of fortune."[832] In rare cases he is obliged to provide for the wife's support even after the separation.[833] Often, as already seen, the woman receives back her dotal gift and whatever she brought with her at the marriage; while frequently the husband is obliged to surrender a portion or all of the common property. Thus "among the Karens, if a man leaves his wife, the rule is that the house and all the property belong to her, nothing being his but what he takes with him. Among the Manipuris, according to Colonel Dalton, a wife who is put away without fault on her part, takes all the personal property of the husband, except one drinking cup and the cloth round his loins;" and "similar rules prevail among the Galela, and in the Marianne Group."[834]
The conservative influence of property is even more marked in connection with wife-purchase—a powerful deterrent of hasty divorce. In the case of a sale-marriage, even in the weakened form of dower to the woman, the guilty or responsible party usually suffers a decided disadvantage from the separation. The man who repudiates his wife without just cause, as already shown, may not only forfeit his right to reclaim the bride-money, and incur other losses on the division of the property; but often, particularly where the maternal system of kinship prevails, he may have to surrender his children as well; and the woman who unjustly leaves her husband may lose all that she brought with her into the home or compel her kindred to restore the purchase price.[835]
Here also the results of the genealogical organization must be considered. The blood-feud, paradoxical as it may seem, often acts as a conservative power among primitive men. The wife's kindred may protect her from the vengeance of a brutal husband whom she has deserted; or they may send her back when she has acted indiscreetly or when they dread the wrath of the husband's clan. The organization of society on the basis of kinship has another important bearing upon the effects of divorce. It appears to be practically a universal rule among uncivilized races that the repudiated wife or the woman who legally puts away 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]
PART II
MATRIMONIAL INSTITUTIONS IN ENGLAND
CHAPTER 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