CHAPTER XVIII

THE DECAY OF MARRIAGE BY PURCHASE. THE MARRIAGE PORTION

IT has often been said that the position of women is the surest gauge of a people's civilization. This assertion, though not absolutely, is approximately true. The evolution of altruism is one of the chief elements in human progress, and consideration for the weaker sex is one of the chief elements in the evolution of altruism.

According as more elevated ideas regarding women grew up among the so-called civilized peoples, the practice of purchasing wives was gradually abandoned, and came to be looked upon as infamous. The wealthier classes took the first step, and poorer and ruder persons followed their example. It is of no little interest to follow the course of this process.

In India, in ancient times, the Âsura form, or marriage by purchase, was lawful for all the four castes. Afterwards it fell into disrepute, and was prohibited among the Brahmans and Kshatriyas, but it was approved of in the case of a Vaisya and of a Śudra. Manu forbade it altogether. "No father who knows the law," he says, "must take even the smallest gratuity for his daughter; for a man who, through avarice, takes a gratuity, is a seller of his offspring."2 Purchase survived as a symbol only in the Ârsha form, according to which the bridegroom sent a cow and a bull or two pairs to

the bride's father. Manu expressly condemns those who call this gift a gratuity; hence the Ârsha form was counted by Manu and other lawgivers as one of the legitimate modes of marriage. The Greeks of the historical age had ceased to buy their wives; and in Rome, confarreatio, which suggested no idea of purchase, was in the very earliest known time the form of marriage in force among the patricians. Among clients and plebeians also, the purchase of wives came to an end in remote antiquity, surviving as a mere symbol in their coemptio.* Among the Germans, according to Grimm, it was only Christianity that abolished marriage by purchase. Laferrière and Koenigswarter think it prevailed among the Saxons as late as the reign of Charles the Great, and that in England it was prohibited by Cnut. In Lex Alamannorum, Lex Ripuariorum, Grâgâs,' and the Norwegian laws, real purchase money is not spoken of; and there is reason to believe that the mundr," mentioned in the elder 'Gula-lag' had gradually lost its original meaning of price for a bride.

In the Talmudic law, the purchase of wives appears as merely symbolic, the bride-price being fixed at a nominal amount. The Mohammedan " mahr " is also frequently merely nominal. Among the Finns, the purchase of wives had disappeared in the remote times when their popular songs originated.10 Though it still was usual for a bridegroom to give presents to his bride and her parents, passages in the songs indicate that not even the memory of a real purchase survived." In China, although marriage presents

1 'The Laws of Manu,' ch. iii. v. 29.

2 Ibid., ch. iii. v. 53.

3 Cf. Jolly, 'Die rechtliche Stellung der Frauen bei den alten Indern,' in 'Sitzungsberichte der philosophisch-philologischen und historischen Classe der Akademie der Wissenschaften zu München,' 1876, p. 433. 4 Rossbach, loc. cit. pp. 92, 146, 248, 250, &c.

5 Grimm, loc. cit. p. 424.

6 Laferrière, 'Histoire du droit civil de Rome et du droit français,' vol. iii. p. 156. Koenigswarter, 'Études historiques,' p. 33.

7 Olivecrona, loc. cit. pp. 57, 152, 158. 8 Gans, loc. cit. vol. i.

9 Kohler, in 'Zeitschr. f. vgl. Rechtswiss.,' vol. v. p. 359.

10 Cf. Topelius, in 'Litterära Soiréer,' 1850, p. 326.

11

p. 138.

Kalevala,' runo xviii. vv. 643, et seq. 'Kanteletar,' book iii. song viii. vv. 20-25.

correspond exactly to purchase-money in a contract of sale, the people will not hear of their being called a "price";1 which shows that, among them also, some feeling of shame is attached to the idea of selling a daughter.

We may discern two different ways in which this gradual disappearance of marriage by purchase has taken place. It has been suggested that the sum with which the bridegroom bought the bride became a payment for the guardianship of her. However this may be, the purchase-money became in time smaller and smaller, and took in many cases the form of more or less arbitrary presents. Only a relic of the ancient custom, as we have seen, was left, often appearing as a sham sale in the marriage ceremonies. Another mode of preserving the symbol of sale was the receipt of a gift of real value, which was immediately returned to the giver. This arrangement is said by Âpastamba to have been prescribed by the Vedas “in order to fulfil the law"-that is, the ancient law by which the binding form of marriage was a sale. Generally, however, not the same but another gift is presented in return. Thus, at Athens, at some time which cannot be determined, but which was undoubtedly earlier than the age of Solon, the dower in the modern sense arose; and, as has been suggested, this portioning of the bride by her father or guardian very probably implied originally a return of the price paid. Again, in China, exchange of presents takes place between the guardians of the bridegroom and the guardians of the bride; and this exchange forms the subject of a long section in the penal code, for, "the marriage articles and betrothal presents once exchanged, the parties are considered irrevocably engaged.' In Japan, the bride gives certain conventional presents to her future husband and his parents and relatives,

1

5

Jamieson, in 'The China Review,' vol. x. p. 78, note*.

2 Koenigswarter, 'Études historiques,' p. 33. Idem, 'Histoire de l'organisation de la famille,' p. 123. Weinhold, Deutsche Frauen,'

vol. i. p. 320.

3 Mayne,' Hindu Law and Usage,' p. 82.

4 Smith, Wayte, and Marindin, 'Dictionary of Greek and Roman Antiquities,' vol. i. p. 691.

5 Medhurst, in 'Trans. Roy. As. Soc. China Branch,' vol. iv. pp. 11, et seq.

and, as to the value of these presents, she should always be guided by the value of those brought by the bridegroom.1 Among the ancient Germans, according to Tacitus, the wife in her turn presented the husband with some kind of arms, and this mutual exchange of gifts formed the principal bond of their union.2 Grimm also suggests that the meaning of the Teutonic dowry was partly that of a return gift.3

On the other hand, the purchase-sum was transformed into the morning gift and the dotal portion. A part—afterwards the whole-was given to the bride either directly by the bridegroom or by her father. Manu says, "When the relatives do not appropriate for their use the gratuity given, it is not a sale; in that case the gift is only a token of respect and of kindness towards the maidens."4 This gift was called "çulka," or her fee; but its close connection with a previous purchase appears from the fact that it passed in a course of devolution to the woman's brothers, and one rendering of the text of Gautama which regulates this succession, even allowed the fee to go to her brothers during her life.5 In modern India, according to Dubois, men of distinction do not appropriate the money acquired by giving a daughter in marriage, but lay it out in jewels, which they present to the lady on the wedding day. Among the Greeks of the Homeric age, the father did not always keep the wedding presents for his own use, but bestowed them, wholly or in part, on the daughter as her marriage portion. At a later period, the bridegroom himself gave the presents to his wife, when he saw her unveiled for the first time, or after the vi μVOTIKÝ Among the Teutons the same process of development took place. Originally, the purchase-sum went to the guardian of the bride, partly, perhaps, to her whole family;

1 Küchler, in 'Trans. As. Soc. Japan,' vol. xiii. p. 123.

2 Tacitus, loc. cit. ch. xviii.

3 Grimm, loc. cit. p. 429.

4 The Laws of Manu,' ch. iii. v. 54.

5 Mayr, 'Das indische Erbrecht,' p. 170. Mayne, Hindu Law and Usage,' p. 82.

6 Dubois, loc. cit. p. 103.

7 Rossbach, loc. cit. p. 220. Becker, loc. cit. vol. ii. p. 471.

Hermann-Blümner, loc. cit. pp. 262, 266.

but by-and-by it came to be considered her own property,1 as Tacitus says, "Dotem non uxor marito sed uxori maritus offert." 2 This was the case among the Scandinavians at the date of the inditing of their laws, and among the Langobardi from the seventh century.3 "La dot," says M. Ginoulhiac, "n'est autre chose que le prix de la coemption en usage dans la loi salique; elle fut donée à la femme au lieu de l'être à ses parents, qui ne reçurent plus que le solidum et denarium, ou le prix fictif, et après la mort de l'épouse, une partie de la dot." In Lex Alamannorum and Lex Ripuariorum, only a dos which the wife receives directly from her husband is spoken. of.5 And it seems probable that the morning gift, which has survived very long in Europe, originated in the purchasesum, or formed a part of it, though it has often been considered a pretium virginitatis.8 According to ancient Irish law, a part of the "coibche," or bridal gift, went to the bride's father, or, if he was dead, to the head of her tribe; but another part was given by the bridegroom to the bride herself after marriage. The same was the case with the Welsh

1 Ginoulhiac, 'Histoire du régime dotal,' pp. 187, et seq. Laboulaye, 'Histoire du droit de propriété foncière en Occident,' pp. 403, et seq. 2 Tacitus, loc. cit. ch. xviii.

3 Olivecrona, loc. cit. p. 152. Weinhold, 'Deutsche Frauen,' vol. i. p. 325.

4 Ginoulhiac, pp. 198, et seq.

5 Olivecrona, p. 57.

In Germany and Switzerland, the practice of presenting a morning. gift has been kept up till the present time (Eichhorn, 'Einleitung in das deutsche Privatrecht,' p. 726. Bluntschli, 'Staats- und Rechtsgeschichte der Stadt und Landschaft Zürich,' vol. ii. pp. 164, et seq.).

7 Schlyter, Juridiska afhandlingar,' vol. i. p. 201. Schlegel, 'Om Morgongavens Oprindelse,' in ‘Astraca,' vol. ii. pp. 189, et seq. Koenigswarter, 'Histoire de l'organisation de la famille,' p. 123. The old purchase-money which the husband was obliged to give to the bride, was also represented by the fictitious dowry preserved in the rituals of the Church till the sixteenth century. M. Martene mentions a ritual of the church of Reims, of 1585, in which the bridegroom, at the moment of putting the nuptial ring on the finger of the bride, placed three deniers in her hand (Koenigswarter, p. 174, note 4).

8 Ginoulhiac, p. 202. Warnkoenig and Stein, Französische Staatsund Rechtsgeschichte,' vol. ii. p. 257.

9 Ancient Laws of Ireland,' vol. i. p. 155; vol. iv. p. 63.