[90] Grimm, Deutsche Rechtsalterthümer, p. 424.
[91] Gans, Erbrecht, i. 138.
[92] Jamieson, ‘Marriage Laws,’ in China Review, x. 78 n.*
We may discern two different ways in which this gradual disappearance of marriage by purchase has taken place. On the one hand, the purchase became a symbol, appearing as a sham sale in the marriage ceremonies or as an exchange of presents; on the other hand, the purchase sum was transformed into the morning gift and the dotal portion, a part—afterwards the whole—being given to the bride either directly by the bridegroom or by her father. These transformations of marriage by purchase have taken place not only in the history of the civilised nations, but among several peoples who are still in a savage or semi-civilised state; and of a few of them it is expressly stated that they consider marriage by purchase a disgraceful practice.[93]
[93] Westermarck, op. cit. p. 405 sqq.
From marriage by purchase we have thus come to the practice of dower, which is apparently the very reverse of it. But whilst the marriage portion partly derives its origin from the purchase of wives, it does not do so in every case. It serves different ends, often indissolubly mixed up together. It may have the meaning of a return gift. It may imply that the wife as well as the husband is expected to contribute to the expenses of the joint household. It is also very often intended to be a settlement for the wife in case the marriage be dissolved through the husband’s death or otherwise.[94] In the social history of the civilised races the marriage portion has played so prominent a part, that, as we have spoken of a stage of marriage by purchase, we may speak of another and later stage where fathers are bound by custom or law to portion their daughters. The Jews[95] and Muhammedans[96] consider it a religious duty for a man to give a dower to his daughter. In Greece the dowry came to be thought almost necessary to make the distinction between a wife and a concubine.[97] Isaeus says that no decent man would give his legitimate daughter less than a tenth of his property;[98] indeed, so great were the dowers given that in the time of Aristotle nearly two fifths of the whole territory of Sparta were supposed to belong to women.[99] In Rome, even more than in Greece, the marriage portion became a mark of distinction for a legitimate wife;[100] and though later on Justinian in several of his constitutions declares that dos is obligatory for persons of high rank only,[101] the old custom did not fall into desuetude.[102] The Prussian ‘Landrecht’ still prescribes that the father, or eventually the mother, shall arrange about the wedding and fit up the house of the newly-married couple.[103] According to the ‘Code Napoléon,’ on the other hand, parents are not bound to give a dower to their daughters,[104] and the same principle is generally adopted by modern legislation. It is true that especially in the so-called Latin countries there is still a strong tendency to dotation,[105] but another feeling, in some measure opposed to it, is gaining ground everywhere. In a society where monogamy is prescribed by law, where the adult women outnumber the adult men, where many men never marry, and where married women too often lead an indolent life—in such a society the marriage portion in many cases becomes a purchase-sum by means of which a father buys a husband for his daughter, as formerly a man bought a wife from her father. But, as Mr. Sutherland observes, “that pecuniary interests, either on one side or on the other, should conspicuously enter into the motives which lead to marriage, becomes repulsive to the increasing delicacy of feeling; and so we find that in cultured communities the dowry dies out, just as the purchase-money declined in the civilised stages.”[106]
[94] Ibid. p. 411 sqq.
[95] Mayer, Rechte der Israeliten, ii. 344.
[96] Koran, iv. 3.
[97] Cauvet, ‘L’organisation de la famille à Athènes,’ in Revue de législation et de jurisprudence, xxiv. 152. Potter, Archæologia Græca, ii. 268. Cf. Meier and Schömann, Der attische Process, p. 513 sq.