Читать книгу A History of Matrimonial Institutions (Vol. 1-3) - George Elliott Howard - Страница 32

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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 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]

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]

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]

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]

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]

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]

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]