A History of Matrimonial Institutions, Vol. 1 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 1 of 3
Howard, George Elliott
Families; Marriage -- History
[843] That the betrothal is a contract relative to the _mund_
is stoutly maintained by DAHN, _Das Weib in altgerm.
Recht und Leben_, 4 ff., who absolutely rejects wife-purchase,
declaring such an idea to be "abominable and impossible"
("abscheulich und unmöglich"). This theory is also held by
KRAUT, _Vormundschaft_ I, 171; SCHROEDER,
_Güterrecht_, I, 27 ff., 38, 79; yet SCHROEDER,
_Rechtsgeschichte_, 68, 291 ff., regards the German marriage as
in form a purchase of the bride. RIVE, _Vormundschaft_,
I, 258 ff., _passim_, denies that the betrothal has any
relation to the _mund_, and rejects entirely the view that the
sale-marriage ever existed among the Germans. HABICHT,
_Altdeutsche Verlobung_, 8 ff., 12, admits that originally the
_mund_ was a "property right" and the wife a "thing," though in
the earliest written sources she appears as _Rechtssubject_.
SOHM, _Eheschliessung_, 22, regards the _Witthum_ as
the price of the _mund_; but in his _Trauung und Verlobung_,
15, 16, he drops this view and declares the betrothal to be a
contract to "give the bride in marriage," or, more directly, a
"Kauf der Jungfrau." FRIEDBERG, _Eheschliessung_, 17,
18, appears to hold that it was the _mund_ which was conveyed;
but elsewhere he seems to favor the opposite view for the early
period. See his _Verlobung und Trauung_, 7 ff.; _Lehrbuch_, 339;
and _Zur Geschichte_, 362 ff. Pollock and Maitland, _Hist. of
Eng. Law_, II, 362, declare that "whatever guesses we may make
about a remoter age, the 'bride-sale,' of which Tacitus had
heard, was evidently no sale of a chattel. It was very different
from the sale of a slave girl; it was a sale of the _mund_, the
protectorship over the woman." GIDE, _Étude sur la cond.
privée de la femme_, 196-215, 335 ff.; and HENRY ADAMS,
_Historical Essays_, 31, are decidedly of the same opinion.
BUCKSTAFF, in _Annals of Am. Acad._, IV, 234, doubts
whether the German woman was ever looked upon as a chattel; and
OPET, "Die erbrechtliche Stellung der Weiber in der Zeit
des Volksrechts," in GIERKE'S _Untersuchungen_, XXV,
takes a very favorable view of woman's right of inheritance.
Public-domain text, read in full here on John Shaqi.
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