[Footnote 597: MIELZINER, _The Jewish Law of Marriage and Divorce_, 75.]
[Footnote 599: MIELZINER, _op. cit._, 75.]
[Footnote 600: _Ibid._, 78. "As the formality of contracting marriage by money had in the Rabbinical Law merely a symbolical character, a coin of the least value (the _peruta_, the smallest used in Palestine), and even any other object representing such a value, could be used."--_Ibid._, 79. The practice may have been derived from the Roman _coemptio_. "The rabbinical formality differs, however, from the Roman in this, that the act is done by the man only; _he_ gives the money or its value, and _he_ speaks the formula, while her consent is expressed by her silent acceptance of both. This passivity on her side is in consequence of the Talmudic principle based on the expression used in the Mosaic law: 'If A Man Taketh A Wife;' he takes and she _is_ taken; he is the active and she the passive party."--_Talm. Kiddushin_, 2_b_ and 3_b_; MIELZINER, _op. cit._, 78 n. 2. During the Middle Ages it became customary to use a plain ring instead of the piece of money: _ibid._, 79, 80.]
[Footnote 601: MIELZINER, _The Jewish Law of Marriage and Divorce_, 76.]
Among the Jews it was quite customary for the betrothal to be preceded by an "engagement," but it was not legally required.[602] The Puritan went farther in this regard, regulating proposal and courtship, as well as the pre-contract and nuptials, by statute.
[Footnote 602: _Ibid._, 77. "Since the third century it was regarded as improper to effect a betrothment without a previous engagement."--_Ibid._, 77.]
V. BREACH OF PROMISE AND MARRIAGE PORTIONS
The New England contraction or public betrothal, when its social and legal consequences are considered, is thus seen to be an institution of far more historical interest than the scanty attention it has hitherto received would lead one to infer. This is all the more apparent when the accompanying practice of legal courtship is kept in view. Never, perhaps, in any modern society has parental control been so pronounced. But if consent were once given and sealed by a contract in due form, it could not be lightly withdrawn. The early records abound in notices of suits for breach of promise. The colonists were a litigious people; and members even of some of the best families do not hesitate to drag their matrimonial difficulties into court. Sometimes a jilted lover sues his fickle sweetheart; or a forlorn maiden seeks satisfaction from her betrothed spouse. Thus the Massachusetts court "orders that Joyce Bradwicke shall giue unto Alex: Becke the so[=m]e of xx^s, for promiseing him marriage w^{ th}out her ffrends consent, & nowe refuseing to [p=]forme the same."[603] Likewise in the Plymouth jurisdiction we find John Sutton complaining "against Mary Russell, in an action of the case, to the damage of two hundred pounds, for engageing herselfe to another by promise of marriage, whenas shee had engaged herselfe by promise of marriage vnto the said John before. The jury find for the plaintiffe fifteen pounds damage, and the cost of the suite which came to 1^{ lb} 10^s 6^d."[604] But this did not entirely end the matter. In 1662-63 the case was taken up for review, Mary having in the meantime become the wife of John Jacob. After a careful rehearing, the court reaches the curious decision that Mary's "actinges haue bine such ... as may not reflect vpon her disparagement, wee apprehending that what wrong hath bine vnto John Sutton heerin hath bine rather occationed by her father than by ... herselfe, shee haueing heard such thinges concerning the said Sutton as might justly discurrage her, although the truth of these reports wee see not cause to determine." Whereupon, oddly enough, it is decreed "that the abouesaid John Sutton doe pay vnto John Jacob ... the su[=m]e of fifty shillings."[605]