A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
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]
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.
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]
Still, it will not be wise to accept too literally the apparent statements of the early codes relative to the marriage relation, for they are often brief and obscure, devoid of qualifying terms, and must be construed in the light of other facts. Thus Opet's researches seem to show clearly that in the historical period women were not so much neglected in the ancient law of inheritance as has usually been supposed.[852]
Similar evidences of the sale-marriage are afforded by the South German folk-laws.[853] Among the Salian Franks the bride-price appears in form of 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]
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.
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]
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