A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
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]
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]
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]
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.
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]
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