previous next

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]

hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: