DOS
DOS (
προίξ,
φερνή), dowry.
Greek
In proof of the barbaric simplicity of ancient Greek custom, Aristotle
instances the facts that they went armed and bought their wives
(
Pol. 2.8.19=p. 1268 b, 39). The
presents made to the bride's father, or, to speak plainly, the price
paid for her, was called
ἕδνα or
ἔεδνα: according to the generally
accepted etymology of Curtius, who refers it to the root
ἁδ (
σϜαδ）
found in
ἁνδάνω, ἡδύς,
suavis, this would mean literally a
douceur or “sweetener.” This was,
no doubt, originally a compensation for the loss of the daughter as a
domestic servant; and the English law still recognises, in cases of
seduction, an action by the father for “loss of service.”
As Grote has pointed out, the customs of the early Jews were in this
respect completely Homeric (Gen. 34.12; Ex. 22.16, &c.); but
among the ancient Germans they were modified; the husband gave presents,
not to his wife's father, but to herself (Tac.
Germ. 18).
Grote further shows, in an excellent note, the exact correspondence
between the old Greek
ἕδνα and the
mundium of the Lombard and Alemannic laws; a
term found also in the laws of England under Ethelbert, of Denmark, and
of Sweden (pt. i., ch. 20, 1.475 n.). This custom of the heroic times is
illustrated by many passages in Homer: the bridegroom gives
ἀπερείσια ἕδνα (
Il. 16.178;
Od. 19.529);
μυρία ἕδνα (
Il. 16.190,
22.472;
Od. 11.282). The
amount is reckoned in oxen and other cattle (
Il. 11.243), whence
παρθένοι
ἀλφεσίβοιαι of girls whose attractions command a high
price in the matrimonial market (
Il.
18.593;
H. Ven. 119). On the other hand, to grant
a daughter without
ἕδνα was a high
compliment to the intended son-in-law; Agamemnon offers it to Achilles
(
Il. 9.141 ff.), Alcinous to Ulysses
(
Od. 7.311 ff.). Sometimes the
ἕδνα appear to come from the
bride's family (
Od. 1.277; repeated
2.196); these must be either really a marriage portion, the Homeric
δῶρα, later
φερνή (Nitzsch,
ad loc.; L. and
S. s.v. Schömann,
Antiq. 1.49, E. T.), or more
probably “the
ἕδνα were applied
by the bride's friends, wholly or in part, to furnish her outfit and
provide the wedding feast; and thus they were, so far at least,
indirectly returned to the bridegroom's side” (Merry and
Riddell,
ad loc.). In two other passages,
however, referred to by the same editors and by Schömann (
l.c.),
ἕδνα
may very well bear the usual sense:
ὡς κ᾽ αὐτὸς
ἐεδνώσαιτο θύγατρα (
Od.
2.53) may mean simply “that he may give his daughter in
marriage” (in exchange for
ἕδνα); and
ἐεδνωταὶ
κακοὶ (
Il. 13.382) may be
“drivers of hard bargains” (cf.
συνώμεθα,
“agree,” in the preceding line), not “niggardly in
giving back the
ἕδνα.”
We must hold with Aristotle that in the heroic age the purchase of wives
was a reality, not, as Schömann thinks, a mere ceremonial
survival. It does not follow that it was not usual for the family to
give a woman a portion when she married; especially in the richer, i. e.
mostly the royal and noble, classes. Andromache and Penelope are spoken
of as
ἄλοχοι πολύδωροι (
Il. 6.394;
Od.
24.294), or wives who brought many gifts to their husbands;
other relatives and friends no doubt contributing presents in addition
to the bride's portion from her father. These are called by the general
name of
δῶρα or gifts: there is no
sufficient proof that the dowry so bestowed was also described by the
same name of
ἕδνα, as
Schömann maintains; and the terms
φερνὴ and
προὶξ are
undoubtedly post-Homeric. The
μείλια
offered by Agamemnon to Achilles are not specially “wedding
presents,” as often incorrectly explained (
Hesych. sub voce
ἕδνα, and many moderns); but, as the
etymology implies, “soothing gifts,” designed to propitiate
the wrathful hero. If, on the death of the husband, the widow was not
permitted by the heirs to remain in the house, the money she brought
with her had to be refunded (
Od. 2.132):
On the other hand, it is reasonable to suppose that proved adultery on
the part of the wife involved the return of the
ἕδνα or purchase-money to her husband, though curiously
enough the only authority for this is the mythical case of Hephaestos
and Aphrodite (
Od. 8.318). As was
observed in ancient times, there is no direct mention of divorce in the
Homeric poems.
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
the bride was portioned by her father or guardian (
κύριος). In its origin this custom must have implied a
return of the price paid; and conversely, during the period of
transition from one system to the other, the father would doubtless
regulate his demands with the view of indemnifying himself for the dowry
to be expected when the marriage came off. Hence in lyric and tragic
poetry we find
ἕδνα used in the latter
sense (
Pind. O. 9.16;
Eur. Andr. 2,
153,
942). When Euripides (
Eur. Med. 236) makes Medea complain, among
the disadvantages of her sex, that they had to purchase husbands with
great sums of money (
χρημάτων
ὑπερβολῇ), the Scholiast points out the anachronism; the
[p. 1.692]poet is transferring to the heroic age the
practice of his own time.
The Doric term for a portion was
δωτίνη,
and Müller (
Dor. 3.10) observes
that we know for certain that daughters in Sparta had originally no
dower, but were married with a gift of clothes only; afterwards they
were at least provided with money and other personal property (
Plut. Lys. 30). But in the time of
Aristotle (
Aristot. Pol.
2.9.15=p. 1270, 23), so great were the dowers given and so large
the number of
ἐπίκληροι, or female
representatives of families (
οἶκοι),
that nearly two-fifths of the whole territory of Sparta had come into
the possession of females. At Athens the terms (
φερνὴ and
προὶξ were
probably (according to K. F. Hermann and his editor Blümner) at
first distinguished;
φερνὴ being the
outfit or
trousseau and the wedding presents
which the bride brought to her husband;
προὶξ the sum in money or realty which her father
“settled” upon her (to use the modern expression), of
which the husband had the usufruct, but for which, as we shall see, he
had to give security. In aftertimes the words (
φερνὴ and
προὶξ were
used indiscriminately; the Roman
dos is
usually rendered in Greek by (
φερνή,
whence
parapherna, paraphernalia [
DOS Roman]. The statement in
Plutarch (
Plut. Sol. 20) that the
Athenian legislator did not allow a woman, unless she were an
ἐπίκληρος, to have any (
φερνὴ or dower except a few clothes and
articles of furniture, must therefore be understood in the earlier sense
of (
φερνή, not as excluding any
settlement of money upon her; though Plutarch no doubt took it in the
later sense, and attributed to Athenian institutions a more Spartan
simplicity than really belonged to them. In the orators we find that the
dowers of women formed a considerable part of the taxable capital of the
state (Boeckh,
P. E. p. 514=
Sthh.3 1.598); even with poor people they varied from ten
to a hundred and twenty minae, and Isaeus says that no decent man would
give his legitimate daughter less than a tenth of his property
(
Or. 3 [
Pyrrh.], § 51).
Hipparete, as the daughter of Hipponicus the richest man in Athens,
brought Alcibiades ten talents on her marriage, with the promise of ten
more on the birth of a child. Yet, according to Demosthenes, even five
talents were more than was usually given even by wealthy men (
c.
Steph. i. p. 1112.35; p. 1124.74). Dowries of five or ten
talents in Lucian (
Dial. Meretr. 7, p. 298, Reitz) and
the comic poets must be ascribed, as Boeckh puts it, to the liberal
donations of comedy. The daughters of Aristides received from the state,
as a portion, only thirty minae each (
Plut.
Arist. 27 ; Aeschin.
c. Ctes. § 258).
We may observe, too, that a dowry was thought necessary to mark the
distinction between a wife and a
παλλακή: hence, persons who took portionless girls appear to
have given their guardians a
ὁμολογία
προικός (Isae.
l.c. § 35),
or acknowledgment in writing by which the receipt of a portion was
admitted, in proof of the legitimacy of the marriage. Compare the
proverb
νύμφη δ᾽ἄπροικος οὐκ ἔχει
παρρησίαν (Menand.
Monost. 371, Meineke). On
gifts to
παλλακαὶ themselves, see
CONCUBINA (Greek).
Moreover, poor heiresses (
τῶν ἐπικλήρων ὅσαι
θητικὸν τελοῦσιν were either married or portioned by
their next of kin, according to a law which fixed the amount of portion
to be given at five minae by a Pentacosiomedimnus, three by a Horseman,
and one and a half by a Zeugites (Dem.
c. Macart. p.
1068.54: cf. Ter.
Phorm. 2.1, 75, 2.2, 62; EPICLEROS).
Some interesting light is afforded by inscriptions as to the practice in
other less-known states. A long inscription of the Macedonian period
recently discovered in Myconos gives a sort of marriage register of the
island (
Ἀθήναιον 2.235 ff. (1873);
Hermes, 8.191 ff.;
Bull. de
Corr. hellén. 6.590). In one case we find that
out of a dowry of 1300 drachmas 200 are to be in clothes (1. 4-7); in
another, 300
εἰς ἐσθὴν (
sic) out of 700 (50.17); in a third, 1000
drachmas equally divided between outfit and money; the highest figure
given is 3500 and two female slaves (50.32). Another, from Tenos, is in
the British Museum (printed in
C. I. G. 2338). Land and
houses form part of a dower in
C. I. G. (add.) 2347 c;
Ross,
Inscr. Ined, p. 126; cf. Dittenberger in
Hermes, 16.200 (1881). At Massilia in Strabo's
time (iv. p. 181) no higher dowry was allowed than 100
aurei in money, 5 in clothes and 5 in gold
trinkets (Hermann-Blümner,
Privatalterth. p. 262
f. ; Fränkel on Boeckh, n. 187).
The security exacted from the husband consisted generally of a piece of
real property (
ἔγγειος οὐσία), and
was called
ἀποτίμημα, the usual word
for a mortgage (cf. L. and S.
s. vv.
ἀποτιμᾶν, ἀποτίμημα). Demosthenes,
proceeding to levy execution on the house and lands of Aphobus, finds
them mortgaged to Onetor, whose sister Aphobus had married and divorced,
and who now, as her
κύριος, holds them
as security for her dowry: the young orator's case is, that mortgage and
divorce are both fictitious, and that Aphobus and Onetor are really in
collusion to keep him out of his estate (
c. Onet. i.
passim). The dowry would have to be
accounted for in other cases besides those noticed under
DIVORTIUM Thus, if a
husband died, and the wife left the family (
ἀπέλιπε τὸν οἶκον), she might claim her portion even
though children had been born (Dem.
c. Boeot. de Dot. p.
1010.6); and in the event of the wife dying without issue, her portion
reverted to her
κύριοι (Isae.
Or. 8 [
Ciron.], § 8;
Or. 3 [
Pyrrh.], § 36). After
the death of the wife, her portion belonged to her children, if she had
left any; and if they were minors, the interest was set apart for their
education and maintenance (Dem.
op. cit. p. 1023
§ 50; p. 1026.59). When the husband died before the wife, and
she remained in the family (
μενούσης ἐν τῷ
οἴκῳ), the law appears to have given her portion to her
sons, if of age; subject, however, to an allowance for her support (Id.
c. Phaenipp. p. 1047.27). The actions for dowry and
alimony (
προικὸς καὶ σίτου),
discussed elsewhere as they affected the husband [
DIVORTIUM], lay also
against the heirs (
οἱ τὸν κλῆρον
ἔχοντες) who wrongfully withheld her rights from the widow;
and such actions would be brought by her guardians (Isae.
Or. 3 [
Pyrrh.] § 78; Hudtwalcker,
Ueber die Diäteten, n. 84). We may add that
a
δίκη προικὸς was one of the
ἔμμηνοι δίκαι or suits that might be tried
every month (Pollux, 8.63, 101). Compare Schömann,
Antiq. 1.516, E. T., and especially
Att.
Process, pp. 416-427 (=513-527 Lips.). [
R.W] [
W.W]
[p. 1.693]
2. Roman
Dos (
res
uxoria) is everything brought to the husband, or to the
husband's father (if the husband was in his father's power), on the part
of the wife, as her contribution towards supporting the expenses of the
marriage state (
onera matrimonii).
The whole property of a married woman might be made
dos, or only a part of it: that which was not made
dos continued to be her own separate
property, and was termed
parapherna; over
this the husband had no control.
The
dos belonged during the marriage solely
to the husband, although the wife had an interest in it. It might
consist of property of any kind, i. e. of anything by which the
substance of the husband could be increased; so rights
in personam as well as rights
in rem might belong to the dotal estate. The husband did
not succeed to
dos by way of universal
succession, and consequently the transfer of
dos had no effect on the relations of the wife to her
creditors. It is a disputed point whether there could be
dos properly so called, under the early system
of marriage, by which the husband acquired
manus over the wife; but the institution of
dos in a distinct legal form belongs to the
later marriage, in which the wife is capable of holding separate
property.
It was the duty of the wife to provide her husband with
dos, but this duty was only a natural one, i. e.
she could not be legally compelled to fulfil it. A woman herself had a
legal claim against certain persons, that they should provide her with a
dos, viz. against her father and other
paternal ascendants, and under exceptional circumstances against her
mother.
Dos was divided into two kinds,
dos profectitia and
adventicia, a division which had reference to the source
from which the
dos was derived, and to the
demand for its restitution after the purposes were satisfied for which
it was given. That
dos is
profectitia which was given by the father or
other paternal ascendant of the wife, whether she was in the power of
such ascendant or not. All other
dos is
adventicia. The
dos
recepticia was a species of
dos
adventicia, and was given by some one other than a paternal
ascendant, on condition that it should be restored to him on ;the death
of the wife.
Dos is created (
constituta) when the agreement to give it is entered
into: the actual performance of the dotal agreement may take place
immediately on the agreement being made (
dotis
datio), or after an interval.
Dotis dictio was an old form by which
certain persons bound themselves to be answerable for
dos (Ulp. 6.1); it became obsolete.
The ordinary mode of promising
dos was by
means of a stipulation (
dotis promissio),
but from the time of the Emperor Theodosius II. an informal promise of
dos was legally binding, even though it
were a mere
pollicitatio or promise without
an acceptance. (Cod. Theod. 3.13, 4; Cod. 3.11, 6.)
The husband was owner of the
dos, and so had
a right to the sole management of it, and to the
fructus derived from it; but his power of alienation was
to some extent limited. He could dispose freely of such parts of the
dos as consisted of things movable; but
the Lex Julia (de adulteriis) prevented him from alienating dotal land
(
fundus dotalis, dotalia praedia,
Cic. Att. 15.2. 0;
dotales agri,
Hor. Ep. 1.6-
21) without the wife's consent, or mortgaging it even with her
consent (Gaius, 2.63
Inst. 2.8, pr.). The legislation of
Justinian prevented alienation with the wife's consent, and it declared
the law on the subject applicable to provincial land. A further legal
protection of
fundus dotalis consisted in
the fact that it was incapable of being acquired by usucapion.
Dos is put an end to by the termination of
the marriage for which it was created: whereupon the question arises as
to the devolution of the property. If the marriage was dissolved by the
death of the wife, her father or other paternal ascendant was entitled,
before Justinian's change in the law, to recover the
dos profectitia, unless it had been agreed in such case that
the
dos should belong to the husband; but
if there were children of the marriage, the husband might deduct a
portion on account of each child. (Ulp.
Frag. 6.4:
Frag. Vat. 108.) The
dos
adventicia, in case of the wife's death, became the
absolute property of the husband, unless the person who gave it had
stipulated that it should be returned to him (
dos
recepticia), but Justinian also changed the law on this point.
According to his legislation the wife was as a rule entitled both to
dos profectitia and
adventicia in case the marriage was dissolved by the
death of the husband; and if the marriage terminated by her own death,
her claim to the
dos devolved on her
heredes. A paterfamilias who had
endowed a filiafamilias was, however, allowed to recover what he had
given, and the claim of the wife to the
dos
might be excluded by the express terms of the dotal agreement (Cod.
5.13, 1). In case of divorce the wife forfeited her claim to
dos if the divorce was due to her misconduct;
otherwise her rights were the same as when the marriage was terminated
by death.
The
dos could not as a rule be claimed
during the marriage; but if the husband were insolvent or if he wasted
the
dos, it could be recovered by the wife.
The husband could not restore the
dos of
his own accord during the marriage, since the wife was incapable of
giving him a good discharge; but there were some exceptions to this
rule, e. g. the
dos might be given up for
the purpose of paying the wife's debts, or in order to maintain or
ransom from captivity near kinsfolk. The husband was bound to restore
immovable things belonging to the
dos,
immediately on the dissolution of the marriage; movable and incorporeal
things within a year. (Cod. 5.13, 1.7.)
What should be returned as
dos depended on
the fact of what was given as
dos. If the
things given were ready money (
dos
numerata, Cic.
pro Caecina,
100.4), or other things of an exchangeable kind, the husband was bound
to restore the like sum or quantity. If they were not of an exchangeable
kind, he was bound to restore the same specific things. If the things
cannot be restored, or cannot be restored uninjured, he must make good
all loss or deterioration which has happened on account of his wilful
acts or on account of such negligence as he is not in the habit of
showing in his own affairs. The husband was entitled to be reimbursed
for all necessary expenses (
impensae
necessariae): as, for instance, for necessary repairs of
houses incurred by him in respect of the dotal property, and also
[p. 1.694]for outlays which had improved the value of
the property (
impensae utiles). If things,
whether immovable or movable, were valued when they were given to the
husband, this was a species of sale, and the husband was looked on as
holding the price of the things, and not the things themselves, as
dos (
dos
aestimata).
The husband, or his heirs if he were dead, were liable to an
actio ex stipulatu de dote reddenda, which was
an action
stricti juris, if there was an
express agreement to restore, and by an
actio rei
uxoriae or
dotis, which was
an action
bonae fidei, if there was no
agreement. Justinian made the
actoi ex stipulatu
applicable in all cases, and did away with the
actio
rei uxoriae; at the same time he converted the
actio ex stipulatu when brought on account of
dos into a
bonae
fidei actio.
The wife might by agreement have a special security for
dos, and in case of necessity she might compel
the husband to give such security (
Dig. 24,
3,
22.8),
otherwise, previous to Justinian's change in the law, she was unsecured
except in respect of
fundus dotalis; but
she had some privileges over her husband's other unsecured creditors.
Justinian provided that on the dissolution of the marriage the ownership
of dotal property should pass to the wife, with all the legal remedies
for securing such parts of the
dos as still
existed; that all the husband's property should be under an implied
pledge (
tacita hypotheca) as a security for
the
dos; and that the wife, but she alone,
should have a priority of claim on such property over all other
creditors to whom the same might be pledged (Cod. 5.12, 30 ; Nov. 91,
1).
The allusions to
dos and its restitution are
numerous in Roman classical literature. The name by which the Greek
writers designate the Roman
dos is
(
φερνή. (Ulp.
Fraq.
vi.
De Dotibus; Frag. Jur. Rom. Vatic. 94-122;
Dig. 23,
3; Cod. 5.12;
Hasse,
Das Güterrecht, &100.1824;
Tigerström,
Das römische Dotalrecht,
1831, 1832; Bechmann,
Das römische Dotalrecht,
1863; Czyhlarz,
Das römische Dotalrecht, 1870.)
[
G.L] [
E.A.W]
