other hand, the price was not the subject of bargain as in ordinary sales, but, like the wer, was fixed by law, according to the rank of the woman. Again, an ordinary contract of sale gave a right of action against the vendor to compel him to deliver the thing sold. The guardian who had contracted to give the girl to the bridegroom could not be compelled to this by an action. He could only be sued for breach of contract. The ethical nature of marriage was already recognized in the earliest historic times, and the history of marriage in early German law is the history of its gradual enfranchisement from the forms of a sale, and the substitution of other forms more consistent with its ethical character.4

The price paid by the bridegroom to the guardian was called the weotuma.5 This word is connected with the Gothic root vidan, to bind. The weotuma was the payment which bound the contract; it was also that which gave the marriage its character of legality. Without payment of the weotuma there could be no legal marriage. All marriages without such payment and all violations of the woman's person were violations of the rights of the guardian, and were punished by a fine called mund-bryce. Schroeder1 has shown that this fine had the closest connection with the legal weotuma, and was generally in amount either equal to the weotuma, or some multiple of it.

The reason of this connection between the two is obvious. As the rights over the woman were something for which a price was regularly paid, to seize upon these rights without the consent of the owner and without paying for them was to steal; and the fine was proportioned to the value of the thing stolen, the value, in this case, being the amount of the legal weotuma. The amount of the weotuma in Æthelbirht's laws appears from the following passages, - Æthelb. 75: "For the mund of a widow of the best class of the eorl's degree, let the bot be L shillings; of the second class xx shillings; of the third XII shillings; of the fourth VI shillings." Æthelb. 82: "If a man carry off a maiden by force let him pay L shillings to the owner," &c. The fine of fifty shillings, in the latter passage, must be regarded as a single mund-bryce, equal to the weotuma. For the forcible abduction of a widow the mund-bryce was equal to double the value of the weotuma. Æthelb. 76: "If a man carry off a widow not belonging to him, let the mund be twofold." In Alfred's time the amount of the weotuma was apparently sixty shillings for a woman of the lowest rank. For if, in Alf. 18, § 1, the woman untrue to her betrothal pays a fine of sixty shillings, while in Poen. Theod. XVI. § 29 (Thorpe, II. p. 11) it is said in like case, "reddatur ei pecunia quam pro illa dedit," it is probable that the two are identical.2 So in Alf. 11, § 2, the violation of a maiden of the lowest rank is punished by a mund-bryce of sense. Vide Ine, 31, with Schmid's note. Weotuma is kindred to the Burgundian, wittemon; Frisian, wetma; Alamannian, widem; Mod. Ger. witthum. Sohm, p. 23; Schmid, Gloss. s. v. weotuma.

the same amount. For women above the rank of ceorl, the weotuma increased according to the wer.1 Sometimes the mund-bryce, proportioned to the weotuma, was replaced by the wer of the guilty party, and, later, when the weotuma was no longer a price to the guardian, but a gift to the bride of no fixed value, this became the rule.3

For the full completion of marriage in all its effects, two acts were necessary, - the beweddung, or betrothal; and the gifta (plur. of gift), the delivery of the woman, or nuptials. Schmid, Anh. II. § 61: "And we prohibit with God's prohibition that any one have more wives than one, and let her be lawfully betrothed and given (beweddod and forgifen)."

The betrothal was the promise, on the one hand, to give in marriage, - on the other, to take in marriage, and to pay the purchase price. But the mere promise was not enough. As marriage was a sale, so betrothal was a contract of sale. To understand the nature of the betrothal, it will therefore be necessary to speak of the early German law of contract.4 In the earliest German law, there was no consensual, but only a real or a formal, contract. In other words, a mere convention was not binding: it must be accompanied by some formal act, or by performance on one side. But when this act had been performed, or payment had been made on one side, the contract was not binding merely as giving a claim for damages against the debtor: it effected an actual transfer of title. It transferred the negative effects of property, - the jus vindicandi and the jus abutendi of the Romans. The positive effects of property - the power to use and enjoy the jus utendi fruendi - were transferred when the actual delivery took place. The contract not the delivery of actual possession - was the ground of the title of the purchaser, donee, &c. Hence, in a contract of sale, the purchaser who had paid the price had an action to obtain the thing from the vendor; and, in a contract for the sale of immovables, he could recover even from third parties to whom the vendor had alienated the property. The delivery was only the accomplishment, in fact, of what was already effected in law by the contract.

In the earliest Anglo-Saxon laws, the betrothal appears as a real contract of sale, binding when the weotuma was paid by the bridegroom to the guardian. That the weotuma was regularly prepaid, appears from Poen. Theod. XVI. § 29 (Thorpe, II. p. 11): "Illa autem desponsata si non vult habitare cum eo viro cui est desponsata, reddatur ei pecunia quam pro ipsa dedit, et tertia pars addatur. Si autem ipse noluerit, perdat pecuniam quam pro illa dedit." When the weotuma was paid, the contract was binding, and, like other real contracts, gave the purchaser the rights of a legal owner, so far as this could be done consistently with the ethical character of marriage. Sohm divides the effects of marriage, like the effects of property, into positive and negative effects. The negative effect of marriage was to establish between husband and wife the pledge of fidelity. The positive effect of marriage was to transfer the wife into the actual power of her husband, -to give him control of her person and property. The former was the effect of betrothal; the latter, the effect of the delivery of the woman, - the gifta or nuptials. The gift of the woman was only the completion, in fact, of what was already accomplished in law by the betrothal. The betrothal, not the gift of the woman, was the ground of the husband's title. The man and woman were therefore married when they were betrothed.1 Hence any violation of the betrothal by a third person was a violation of the rights of the bridegroom, and was punished by a fine paid to him.

Thus far, Sohm's view is entirely in accordance with evidence, and presents no difficulty. The betrothal was the transaction which gave marriage its effect in law; and it conferred the rights of a husband on the bridegroom, so far as third parties were concerned. But was the case the same as between the wife or her guardian and the bridegroom? It has been shown above that the contract of betrothal, unlike other real contracts of sale, did not give the bridegroom an action to compel the delivery of the bride, as this would be contrary to the ethical character of marriage.1 If the guardian refused to deliver the woman, or she refused to be delivered, the bridegroom had only a suit for damages, to recover the weotuma previously paid, and an additional fine of onethird. On the other hand, a breach of betrothal by the man was punished by loss of the weotuma. That he also had to pay an additional fine appears from Ine, 31: "If a man buy a wife, and do not pay the purchase price, let him give the money and pay compensation, and make bot, to the sureties, according to his infraction of his pledge." The bridegroom, like any purchaser, could be sued for the price; but the guardian, unlike other parties to a contract, could not be compelled to delivery, but could only be sued for damages. From the point of view of the legality of the marriage, of the violation of betrothal by third parties, even of its violation by the bridegroom, the contract of betrothal was still, like other real contracts, a ground of acquiring the title. But, from the point of view of the breach of betrothal by the woman or her guardian, the contract created only a relation of obligation, and in no way differed from the Roman contract. It was not conveyance, but contract, in the modern sense.4 Sohm has shown that the ethical character of marriage was the means of the first introduction into German law of a contract in favor of a third party. If the view here taken be correct, it was also the means of the first introduc

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