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Title: A History of Matrimonial Institutions, Volume 1 (of 3)
Author: Howard, George Elliott
Language: English
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* * * * *
A HISTORY OF
MATRIMONIAL INSTITUTIONS
CHIEFLY IN ENGLAND AND THE UNITED STATES WITH AN INTRODUCTORY
ANALYSIS OF THE LITERATURE AND THE
THEORIES OF PRIMITIVE MARRIAGE
AND THE FAMILY
BY
GEORGE ELLIOTT HOWARD PH.D.
PROFESSORIAL LECTURER IN THE UNIVERSITY OF CHICAGO AUTHOR OF "LOCAL
CONSTITUTIONAL HISTORY OF THE UNITED STATES"
VOLUME ONE
CHICAGO
THE UNIVERSITY OF CHICAGO PRESS
CALLAGHAN & COMPANY
LONDON
T. FISHER UNWIN, PATERNOSTER SQUARE
1904
COPYRIGHT 1904
THE UNIVERSITY OF CHICAGO
Entered at Stationers' Hall
MAY, 1904
TO
Alice Frost Howard
HER HUSBAND DEDICATES THIS BOOK IN
GRATEFUL RECOGNITION OF HER
AID IN MAKING IT
PREFACE
It is an encouraging sign of advancing culture that history is
gaining a deeper and broader meaning. We are really becoming
interested, not merely in our political, but also in our entire
biological, psychological, and social evolution. Although such
phrase-making is nearly always misleading, there would perhaps
be more truth in saying that "history is past sociology and
sociology present history" than in Freeman's well-known epigram. In
particular, the human family, with all that the word connotes, is
commanding greater attention. Yet there is urgent need that its rise
and social function should have far more earnest study than they
now receive. The family and its cognate institutions ought to enter
more fully into popular thought; and they should have much larger
relative space in the educational program. From the home circle
to the university seminar they are worthy to become a vital part
of systematic social training. In the hope of aiding somewhat in
winning for them due scientific recognition, this book is written.
It seems not impossible that a sustained history of the matrimonial
institutions of the English race in its "three homes" may prove
a positive advantage, especially in gathering the materials and
planning the work for more detailed investigations. Moreover, a
thorough understanding of the social evolution of any people must
rest upon the broader experience of mankind. Accordingly, in Part
I the attempt is made to present a comprehensive and systematic
analysis of the literature and the theories of primitive matrimonial
institutions.
Preliminary reference to another portion of the book may perhaps
be permitted. The anxious attention of the legal and social
reformer is being especially directed to the character of our state
legislation regarding marriage and divorce. To him, therefore, it
is hoped, the last three chapters may prove helpful. Summaries of
the statutes as they stood at particular dates have indeed appeared.
The digest contained in the government _Report_ is of great value
for the time of its compilation; but no attempt seems ever to have
been made to provide a systematic historical record. In these
chapters--the result of several years' labor--the laws of all the
states and territories enacted since the Revolution have been
analyzed with some regard for details. No pains have been spared to
gain accuracy; yet it would be rash to expect that the discussion is
entirely free from error or oversight.
During the years devoted to this investigation I have profited by
the generous assistance of many friends. They have aided me through
references, information, copying, verifying, and in other ways. To
all these I desire to convey my grateful thanks. In a few instances
it is fitting that individual acknowledgment should be made. To
Professor William Henry Hudson, of London, I am indebted for the
examination of several rare books in the library of the British
Museum. Bibliographical help has also been given by Professor
Charles Richmond Henderson, of the University of Chicago. Special
researches on my behalf have been conducted by Mr. Royall C.
Victor and by Miss Lucile Eaves, head resident of the South Park
Settlement, San Francisco. I have had the advantage of the expert
aid of Mr. David M. Matteson in examining the manuscript records
of the colonial and provincial courts of Suffolk and Middlesex
counties, Massachusetts. To Professor Nathan Abbott, of Stanford
University, Mr. James H. Deering, of the San Francisco Law Library,
and Rev. Samuel W. Dike, secretary of the National League for the
Protection of the Family, I am under obligations for information
and suggestions. Special thanks are due to Professor Charles Gross,
of Harvard, for encouragement in the work and various kind offices;
as also to Mr. W. C. Lane and Mr. T. J. Kiernan, of the Harvard
Library, for granting the most liberal use of the materials in their
charge.
Finally I can but poorly express the gratitude which I owe to my
wife, whose patient hand, faithful criticism, and wise counsel have
never failed.
CHICAGO, March 19, 1904.
ANALYTICAL TABLE OF CONTENTS
VOLUME ONE
PART I
ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE
MATRIMONIAL INSTITUTIONS
PAGES
CHAPTER I. THE PATRIARCHAL THEORY 3-32
I. Statement of the Theory 9-13
II. Criticism of the Theory by Spencer and McLennan 14-17
III. The Theory in the Light of Recent Research 18-32
CHAPTER II. THEORY OF THE HORDE AND MOTHER-RIGHT 33-89
I. Bachofen and His Disciples 39-65
II. Morgan's Constructive Theory 65-76
III. McLennan's Constructive Theory 77-89
CHAPTER III. THEORY OF THE ORIGINAL PAIRING OR
MONOGAMOUS FAMILY 89-151
I. The Problem of Promiscuity 90-110
II. The Problem of Mother-Right 110-117
III. The Problem of Exogamy 117-132
IV. The Problem of the Successive Forms of the Family 132-151
CHAPTER IV. RISE OF THE MARRIAGE CONTRACT 152-223
I. Wife-Capture and the Symbol of Rape 156-179
II. Wife-Purchase and Its Survival in the Marriage
Ceremony 179-201
III. The Antiquity of Self-Betrothal or Free Marriage 201-210
IV. Primitive Free Marriage Surviving with Purchase,
and the Decay of the Purchase-Contract 210-223
CHAPTER V. EARLY HISTORY OF DIVORCE 224-250
I. The Right of Divorce 224-240
II. The Form of Divorce 240-241
III. The Legal Effects of Divorce 241-247
IV. Frequency of Divorce 247-250
PART II
MATRIMONIAL INSTITUTIONS IN ENGLAND
CHAPTER VI. OLD ENGLISH WIFE-PURCHASE YIELDS TO
FREE MARRIAGE 253-286
I. The Primitive Real Contract of Sale and Its
Modifications 258-276
II. Rise of Free Marriage: Self-_Beweddung_ and
Self-_Gifta_ 276-286
CHAPTER VII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL 287-320
I. The Primitive Christian Benediction, the Bride-Mass,
and the Celebration _ad Ostium Ecclesiae_ 291-308
II. The Priest Supersedes the Chosen Guardian, and
_Sponsalia per Verba de Praesenti_ Are Valid 308-320
CHAPTER VIII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL
LAW 321-363
I. The Early Christian Doctrine and the Rise of the
Canonical Theory 324-340
II. Clandestine Marriages the Fruit of the Canonical
Theory 340-349
III. The Evils of the Spiritual Jurisdiction 351-359
IV. Publicity Sought through Banns and Registration 359-363
CHAPTER IX. THE PROTESTANT CONCEPTION OF MARRIAGE 364-403
I. As to the Form of Marriage 370-386
II. As to the Nature of Marriage 386-399
III. Child-Marriages in the Age of Elizabeth 399-403
CHAPTER X. RISE OF CIVIL MARRIAGE 404-473
I. Cromwell's Civil Marriage Act, 1653 408-435
II. Fleet Marriages and the Hardwicke Act, 1753 435-460
III. The Present English Law 460-473
VOLUME TWO
PART II--_Continued_
CHAPTER XI. HISTORY OF SEPARATION AND DIVORCE UNDER
ENGLISH AND ECCLESIASTICAL LAW 3-117
I. The Early Christian Doctrine and the Theory of
the Canon Law 11-60
_a_) Historical Elements of the Christian Teaching 11-23
_b_) Views of the Early Fathers 23-28
_c_) The Legislation of the Christian Emperors 28-33
_d_) The Compromise with German Custom 33-46
_e_) Final Settlement of the Christian Doctrine in
the Canon Law 47-60
II. The Protestant Doctrine of Divorce 60-85
_a_) Opinions of Luther and the Continental Reformers 60-71
_b_) Opinions of the English Reformers 71-85
III. Law and Theory during Three Centuries 85-117
_a_) The Views of Milton 85-92
_b_) Void and Voidable Contracts 92-102
_c_) Parliamentary Divorce 102-109
_d_) The Present English Law 109-117
PART III
MATRIMONIAL INSTITUTIONS IN THE UNITED STATES
CHAPTER XII. OBLIGATORY CIVIL MARRIAGE IN THE NEW
ENGLAND COLONIES 121-226
I. The Magistrate Supersedes the Priest at the
Nuptials 125-143
II. Banns, Consent, and Registration 143-151
III. Courtship, Proposals, and Government of Single
Persons 152-169
IV. Pre-contracts, Bundling, and Sexual Immorality 169-200
V. Breach of Promise and Marriage Portions 200-209
VI. Self-_Gifta_, Clandestine Contracts, and Forbidden
Degrees 209-215
VII. Slave-Marriages 215-226
CHAPTER XIII. ECCLESIASTICAL RITES AND THE RISE OF
CIVIL MARRIAGE IN THE SOUTHERN COLONIES 227-263
I. The Religious Ceremony and Lay Administration
in Virginia 228-239
II. Optional Civil Marriage and the Rise of Obligatory
Religious Celebration in Maryland 239-247
III. The Struggle for Civil Marriage and Free
Religious Celebration in North Carolina 247-259
IV. Episcopal Rites by Law and Free Civil or Religious
Celebration by Custom in South Carolina and
Georgia 260-263
CHAPTER XIV. OPTIONAL CIVIL OR ECCLESIASTICAL MARRIAGE
IN THE MIDDLE COLONIES 264-327
I. New York 266-308
_a_) Law and Custom in New Netherland 267-284
_b_) Law and Custom under the Duke of York 284-296
_c_) Law and Custom in the Royal Province 296-308
II. New Jersey, Pennsylvania, and Delaware 308-327
_a_) Law and Custom in New Jersey 308-315
_b_) Law and Custom in Pennsylvania and Delaware 315-327
CHAPTER XV. DIVORCE IN THE AMERICAN COLONIES 328-387
I. In New England 330-366
_a_) Massachusetts 330-348
_b_) New Hampshire, Plymouth, and New Haven 348-353
_c_) Connecticut 353-360
_d_) Rhode Island 360-366
II. English Divorce Laws in Abeyance in the Southern
Colonies 366-376
Arbitration and Divorce in the Middle Colonies 376-387
CHAPTER XVI. A CENTURY AND A QUARTER OF MARRIAGE
LEGISLATION IN THE UNITED STATES, 1776-1903 388-497
I. The New England States 388-408
_a_) Solemnization 389-395
_b_) Forbidden Degrees: Void and Voidable Marriages 395-401
_c_) Certificate and Record 401-408
II. The Southern and Southwestern States 408-452
_a_) Solemnization 409-427
_b_) Forbidden Degrees: Void and Voidable Marriages 427-441
_c_) Certificate and Record 441-452
III. The Middle and the Western States 452-497
_a_) Solemnization 452-470
_b_) Forbidden Degrees: Void and Voidable Marriages 470-481
_c_) Certificate and Record 481-497
VOLUME THREE
PART III--_Continued_
CHAPTER XVII. A CENTURY AND A QUARTER OF DIVORCE
LEGISLATION IN THE UNITED STATES 3-160
I. The New England States 3-30
_a_) Jurisdiction: Causes and Kinds of Divorce 4-18
_b_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 18-28
_c_) Alimony, Property, and Custody of Children 28-30
II. The Southern and Southwestern States 31-95
_a_) Legislative Divorce 31-50
_b_) Judicial Divorce: Jurisdiction, Kinds, and Causes 50-79
_c_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 79-90
_d_) Alimony, Property, and Custody of Children 90-95
III. The Middle and the Western States 96-160
_a_) Legislative Divorce 96-101
_b_) Judicial Divorce: Jurisdiction, Kinds, and Causes 101-144
_c_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 145-160
CHAPTER XVIII. PROBLEMS OF MARRIAGE AND THE FAMILY 161-259
I. The Function of Legislation 167-223
_a_) The Statutes and the Common-Law Marriage 170-185
_b_) Resulting Character of Matrimonial Legislation 185-203
_c_) Resulting Character of Divorce Legislation 203-223
II. The Function of Education 223-259
BIBLIOGRAPHICAL INDEX 263-402
I. Early History of Matrimonial Institutions 264-291
II. Matrimonial Institutions in England and under
Germanic and Canon Law 291-339
III. Matrimonial Institutions in the United States 339-355
_a_) Manuscripts 339-340
_b_) Books and Articles 340-355
IV. Problems of Marriage and the Family 355-396
V. Session Laws and Collected Statutes Used in Chapters
XVI-XVIII 396-402
CASE INDEX 405-411
SUBJECT INDEX 413-449
PART I
ANALYSIS OF THE LITERATURE AND THE THEORIES
OF PRIMITIVE MATRIMONIAL INSTITUTIONS
CHAPTER I
THE PATRIARCHAL THEORY
[BIBLIOGRAPHICAL NOTE I.--The modern history
of the patriarchal theory begins with Filmer's _Patriarchia_
(London, 1680), in which the author finds in the Hebrew family
a justification of the "divine prerogative" of kings; and
the trenchant reply of Locke in _The Two Treatises on Civil
Government_ (London, 1690), reprinted with Filmer's work in
the ninth volume of Morley's _Universal Library_. But the
theory is especially associated with the name of Sir Henry
Maine. His _Ancient Law_ (New York, 1861), aside from its
leading hypothesis, is one of the most suggestive books of the
century. It was followed by the _Early History of Institutions_
(New York, 1875); the _Village Communities_ (New York, 1876);
and _Early Law and Custom_ (New York, 1883). In this last
work he contributes supplementary chapters on such topics as
"Ancestor-Worship" and "East European House Communities," and
he replies to his critics. Maine is criticised by Spencer,
_Principles of Sociology_ (New York, 1879), Vol. I, Part III,
chap. ix; and by McLennan, _Patriarchal Theory_ (London, 1885),
who, on the negative side, is fairly successful in confuting
his adversary. Hearn's _Aryan Household_ (London, 1879) and
the _Ancient City_ (Boston, 1877) of Fustel de Coulanges take
practically the same view of primitive society as Maine, while
particularly emphasizing ancestor-worship and the genealogical
organization.
For the early Aryans and the Hindus see Zimmer's
_Alt-indisches Leben_ (Berlin, 1879); Delbrück's _Die
indogermanischen Verwandtschaftsnamen_ (Leipzig, 1885);
Schrader's _Sprachvergleichung und Urgeschichte_ (Jena,
1883), or the English translation by Jevons (London, 1890);
Zmigrodski's _Die Mutter bei den Völkern des arischen Stammes_
(Munich, 1886); and especially Leist's epoch-making works,
_Graeco-italische Rechtsgeschichte_ (Jena, 1884) and the
_Alt-arisches Jus Gentium_ (Jena, 1889). Of first-rate value
also are the _Rechtshistorische und rechtsvergleichende
Forschungen_ (Part III, on _Indisches Ehe- und Familienrecht_)
and the other papers of the indefatigable Kohler. Of
these the following are particularly interesting in this
connection, all found in the _Zeitschrift für vergleichende
Rechtswissenschaft_: "Rechtsverhältnisse auf dem ostind.
Archipel u. den westl. Karolinen," _ZVR._, VI, 344-50;
"Gewohnheitsrechte des Pendschabs," _ibid._, VII, 161-239;
"Indische Gewohnheitsrechte," _ibid._, VIII, 89-147, 262-73;
"Gewohnheitsrechte von Bengalen," _ibid._, IX, 321-60;
"Gewohnheitsrechte der Provinz Bombay," _ibid._, X, 64-142,
161-88; "Gewohnheitsrechte der ind. Nordwestprovinzen," _ibid._,
XI, 161-95; and, for comparison, "Die Ionsage und Vaterrecht,"
_ibid._, V, 407-14; "Studien über künstliche Verwandtschaft,"
_ibid._, V, 415-40; and "Das Recht der Armenier," _ibid._, VII,
385-436. As in the last-named paper, the influence of Roman law
may be traced in Mégavorian, _Étude ethnographique et juridique
sur la famille et le mariage arméniens_ (Paris, 1894). Hass,
"Die Heirathsgebrāuche der alten Inder nach den Grihyasûtra,"
in Weber's _Indische Studien_, V, 267-412 (Berlin, 1862),
reveals in an admirable way the religious spirit pervading
the ancient Hindu matrimonial life. This study suggested the
excellent monograph of Weber, "Vedische Hochzeitssprüche,"
_ibid._, V, 177-266; while the conclusions of both Haas and
Weber are ably supported, with the aid of additional sources,
by the more elaborate paper of Winternitz, "Das altindische
Hochzeitsrituell," in _Denkschriften der kais. Akad. d.
Wiss., phil.-hist. Klasse_, XL, 1-113 (Vienna, 1892). In this
connection, for comparison, may be read Mackenzie, "An Account
of the Marriage Ceremonies of the Hindus and Mahommedans as
Practised in the Southern Peninsula of India," in _Transactions
of the Royal Asiatic Society_, III (London, 1835); and
Lushington, "On the Marriage Rites and Usages of the Jâts of
Bharatpur," in _Journal of the Asiatic Society of Bengal_, II,
273-97 (Calcutta, 1833). Especially important are Bernhöft's
"Die Grundlagen der Rechtsentwicklung bei den indogermanischen
Völkern," in _ZVR._, II, 253-328; his "Altindisches
Familienorganisation," _ibid._, IX, 1-45; and his "Das Gesetz
von Gortyn," _ibid._, VI, 281-304, 430-40. A popular, but in the
main uncritical, book is Clarisse Bader's _La femme dans l'Inde
antique_ (2d ed., Paris, 1867). Similar in plan and treatment
are her _La femme biblique_ (new ed., Paris, 1873); _La femme
grecque_ (2d ed., Paris, 1873); and _La femme romaine_ (2d
ed., Paris, 1877). A strong defense of the dignified position
of the ancient Indic woman, based on the sources, may be found
in Jacolliot's _La femme dans l'Inde_ (Paris, 1877); and Mary
Frances Billington is a vigorous champion of the social status
of modern _Woman in India_ (London, 1895). See also Pizzi,
"Les coutumes nuptiales aux temps héroïques de l'Iran," in _La
Muséon_, II, 3 (1883); Vidyasagar, _On Widow-Marriages among the
Hindus_ (Calcutta, 1855); and Schlagintweit, "Die Hindu-Wittwe
in Indien," in _Globus_, XLIII (1883). Among the best technical
writings are Mayne's _Hindu Law and Usage_ (Madras and London,
1888); Jolly's _Hindu Law of Partition_ (Calcutta, 1885); his
_Rechtliche Stellung der Frauen bei den alten Indern_ (Munich,
1876); Tupper's _Punjab Customary Law_ (Calcutta, 1881); and
Gooroodass's "The Hindu Law of Marriage and Stridahn," in
_Tagore Law Lectures, 1878_ (Calcutta, 1879). Max Müller's
series of Sacred Books contains Apastamba, Gautama, Visnu,
and the other Sūtras, as well as the later versified law-books
of Manu and Yājñavalkya, with other sources of ancient Indic
custom. Burnell and Hopkins's _Manu_ (London, 1891) is an
excellent edition; and Jolly has a German translation of Books
VIII and IX in _ZVR._, III, 232-83; IV, 321-61. For each
important point these sources are thoroughly collated in the
writings of Kohler, Leist, and Jolly, above referred to.
For the Slavs, Krauss's _Sitte und Brauch der Südslaven_
(Vienna, 1885) is the most valuable treatise. See also Turner,
_Slavisches Familienrecht_ (Strassburg, 1874); and Kovalevsky's
_Modern Customs and Ancient Laws of Russia_ (London, 1891), in
which the author criticises and corrects Sir Henry Maine on
important points. For Greece, in addition to Leist's works above
mentioned, see the paper of Campaux, _Du mariage à Athènes_
(Paris, 1867); that of Moy, "La famille dans Homère," in _Revue
des cours littéraires_, 8 mars 1869; Stegeren, _De conditione
civili feminarum atheniensium_ (Zwallae, 1839); Ouvré,
_Observations sur le régime matrimonial au temps d'Homère_
(Paris, 1886); Lasaulx, _Zur Geschichte und Philosophie der
Ehe bei den Griechen_ (Munich, 1852); especially Hruza's _Die
Ehebegründung nach attischem Rechte_ (Erlangen and Leipzig,
1892); and his _Polygamie und Pellikat nach griechischem Rechte_
(Erlangen and Leipzig, 1894).
On the matrimonial institutions of the Romans consult
Marquardt's _Privatleben_; Lange's _Römische Alterthümer_;
Smith's _Dictionary of Greek and Roman Antiquities_; Müller's
_Handbuch_; Bernhöft's _Staat und Recht der rom. Königszeit_
(Stuttgart, 1882); Karlowa's _Die Formen der röm. Ehe und
Manus_ (Bonn, 1868); Rossbach's _Die röm. Ehe_ (Stuttgart,
1853); his _Römische Hochzeits- und Ehedenkmäler_ (Leipzig,
1871); Laband's "Rechtliche Stellung der Frauen im altröm. und
germanischen Recht," in _Zeitschrift für Völkerpsychologie_,
III (Berlin, 1865); and Bouchez-Leclercq's _Manuel des inst.
romaines_ (Paris, 1886). From the mass of writings which are
of service for this and the four subsequent chapters may also
be mentioned Brissonius, _De ritu nuptiarum_ (Paris, 1564);
his _De jure connubiorum_ (Paris, 1564); Hotman, _De veteri
ritu nuptiarum observatio_; his _De sponsalibus_; his _De ritu
nuptiarum et jure matrimoniorum_--all published and bound
with the two works of Brissonius (Leyden, 1641); Grupen, _De
uxore romana_ (Hannover, 1727); Ayrer, _De jure connubiorum
apud romanos_ (Göttingen, 1736); the anonymous _Dei riti delle
antiche nozze romane_ (Perugia, 1791); Maanen, _De muliere
in manu et in tutela_ (Lugd. Bat., 1823); Schultz, _De jure
succedendi feminarum apud romanos_ (Trajecti ad Rhenum, 1826);
Chamblain, _De la puissance paternelle chez les romains_ (Paris,
1829); Eggers, _Wesen und Eigenthümlichkeiten der altröm. Ehe
mit Manus_ (Altona, 1833); Mahlmann, _De matrimonii veterum
romanorum ineundi_ (Halle, 1845); Hase, _De manu juris romani_
(Halle, 1847); Gerlach, _De romanorum connubio_ (Halle, 1851);
Dubief, _Qualis fuerit familia romana tempore Plauti_ (Molini,
1859); Pagés, _La famille romaine_ (Toulouse, 1892); Louïse, _Du
sénatus-consulte velléien et de l'incapacité de la femme mariée_
(Chateau-Thierry, 1873); Bourdin, _De la condition de la mère
en droit romain et en droit français_ (Paris, 1881); Salomon,
_Du mariage du droit des gens et en général des mariages sans
connubium_ (Paris, 1889); Desminis, _Die Eheschenkung nach röm.
und insbesondere nach byzantinischem Recht_ (Athens, 1897); and
Ciccotti, _Donne e politica negli ultimi anni della republica
romana_ (Milan, 1895). The criticisms of Kuntze, _Excurse über
röm. Recht_ (2d ed., Leipzig, 1880), and Esmein, _Mélanges
d'histoire du droit et de critique_ (Paris, 1886), are of great
value on various important questions. Compare also Couch, "Woman
in Early Roman Law," in _Harvard Law Review_, VIII (Cambridge,
1895); Picot, _Du mariage romain, chrétien, et français_
(Paris, 1849); Monlezun, _Condition civile de la femme mariée
à Rome et en France_ (Paris, 1878); Tardieu, _De la puissance
paternelle en droit romain et en droit français_ (Paris, 1875);
and Cornil, "Contribution à l'étude de la patria potestas," in
_Nouv. rev. hist. de droit_, XXI, 416-85 (Paris, 1897). Gide's
excellent _Étude sur la condition privée de la femme_ (2d ed.,
Paris, 1885) deals with the laws of Greece, Rome, and other
nations. Poste's edition of Gaius's _Institutionum juris civilis
commentarii quatuor_ (Oxford, 1875) is an indispensable source;
and among legal treatises are particularly to be commended
Muirhead's _Introduction to the Private Law of Rome_ (Edinburgh,
1886); Puchta's _Institutionen_; Moyle's _Institutionum Libri_
(Oxford, 1890); Rein, _Privatrecht_ (Leipzig, 1836); and
especially Sohm's _Institutes_ (Oxford, 1892), by far the best
work on the subject for historical purposes, showing the rare
insight, clearness of analysis, and vigorous style peculiar to
the author. Most readers will find the short _Introduction_
of Hadley and the excellent _Outlines_ of Professor Morey
sufficient. For the general subject of marriage and the
family the _Zeitschrift für vergleichende Rechtswissenchaft_
(Stuttgart, 1878-96) is indispensable; while the _Kritische
Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft_
and the _Zeitschrift für Ethnologie_ are also of constant
service.
For the literature of Arabian and Hebrew matrimonial
institutions, respectively, see Bibliographical Notes II and IV.
The student who has not yet seriously attacked the literature
of the subject will do well to begin with the following:
Tylor, "On a Method of Investigating the Development of
Institutions, Applied to Laws of Marriage and Descent," in
_Journal of Anth. Inst._, XVIII, No. 3; Bernhöft's "Zur
Geschichte des europäischen Familienrechts," in _ZVR._, VIII,
1-27, 161-221, 384-405; in connection with his "Principien des
europäischen Familienrechts," _ibid._, IX, 392-444; Friedrichs,
"Familien-Stufen und Eheformen," _ibid._, X, 189-281; the
first two chapters of Posada's _Théories modernes_ (Paris,
1896); and the first three chapters of Botsford's _Athenian
Constitution_ (Boston, 1893), one of the ablest contributions
to comparative institutions. This is supplemented by H. E.
Seebohm's _Structure of Greek Tribal Society_ (London and New
York, 1895). For summaries of the results of investigations,
from different points of view, Delbrück's "Das Mutterrecht bei
den Indogermanen," in _Preussische Jahrbücher_, XCVII, 14-27
(Berlin, 1895), may be compared with Dargun's _Mutterrecht und
Vaterrecht_ (Leipzig, 1892), containing a criticism of the views
of many recent writers.]
It is the primary purpose of this book to trace the development of
the family and marriage in the "three homes" of the English race.
An attempt is made to describe the mechanism provided by the state
for the administration of matrimonial law; and to appreciate the
importance of some of the many problems centering in the family
as a social institution. Necessarily a theme so broad may here be
treated only in outline. Yet in the outset it is the limitations
of the subject which require to be most carefully noted. It is but
a part of the wide field of family history which receives special
attention. We are closely concerned with the forms of celebration
and divorce as they existed among our Teutonic ancestors, and as
they have since been molded by custom and legislation in England and
the United States. Only in a secondary degree are we interested in
the intricate law of the domestic relations. Except incidentally, we
are not now called upon to consider the property rights of husband
and wife, the laws of guardian and ward, or the rules of kinship and
succession.
More pertinent is the general question of the genesis of human
marriage and the human family.[1] It will be impossible, of
course, to examine independently the many difficult problems which
have arisen in this connection. Even the specialist may find it
hard to trace a clear way through the bewildering maze of existing
theory and sub-theory. It seems desirable, therefore, by way of
introduction, to present as clearly and briefly as may be the more
salient results of recent investigation. Marriage is a product of
social experience. Hence to understand its modern aspects it is
needful to appeal to the general sociological facts surrounding
its origin and its early history among the races of mankind. It is
necessary to get our bearings. At the dawn of history the Teutonic
family was essentially monogamic, originating in a contractual
relation. What, then, do we know as to the origin of the monogamic
family and regarding the conditions under which marriage by contract
arose? Part I will concern itself with the solution of this question.
[1] "The expression 'human marriage' will probably be regarded
by most people as an improper tautology. But, as we shall
see, marriage, in the natural-history sense of the term,
does not belong exclusively to our own species. No more
fundamental difference between man and other animals should be
implied in sociological than in biological and psychological
terminology. Arbitrary classifications do science much
injury."--WESTERMARCK, _History of Human Marriage_,
6. In like spirit, HELLWALD entitles his book _Die
menschliche Familie_.
The literature[2] of primitive marriage and the family is already
formidable; and, however contradictory and discouraging, on first
examination, its conclusions may appear, there can be little doubt
that they demonstrate the possibilities of the comparative method[3]
in the domain of social institutions. It is in this field, indeed,
that evolutional science bids fair to achieve its most signal
triumph. At last, in the laboratory of science, there is some
prospect that man may come really to know himself. On the other
hand, it is precisely in the study of primitive marriage that the
"perils of historical narrative" are most clearly revealed.[4]
Nowhere, perhaps, can there be found rasher inference[5] and more
sweeping generalization from inadequate data. Too often economic
and psychological laws have been slighted; and, in a field where
their careful observance is so vitally important, the fundamental
principles of organic evolution--such, for instance, as natural
selection--have frequently been ignored.[6] A vast mass of
interesting facts relating to man's social development, highly
important for him to know, has been disclosed. But, with a few
notable exceptions, the signal failure of investigators thus far has
been the attempt to sustain theories of uniform social progress. The
criticism, especially, to which the writings of Bachofen, Maine,
Morgan, and McLennan have given rise has greatly weakened the faith
of scholars in the doctrine of universal stages of evolution through
which all mankind has run.[7]
[2] A brief and clear account of some of the more important works
is given by BERNHÖFT, "Zur Geschichte des europäischen
Familienrechts," _ZVR._, VIII, 4 ff., 384 ff. Compare the
criticisms of Spencer, Starcke, and Westermarck contained
throughout their respective treatises.
[3] For a proof of the efficiency with which the "statistical
method" may be applied to anthropological and sociological
questions, see the paper of DR. TYLOR, "On a Method
of Investigating the Development of Institutions, Applied to
Laws of Marriage and Descent," _Journal of the Anthropolog.
Institute_, Feb., 1889, 245-69. _Cf._ WESTERMARCK,
_Human Marriage_, 1-7; STARCKE, _Primitive Family_,
1-16; BERNHÖFT, _op. cit._, 1-4.
[4] See the suggestive paper of WINSOR, "The Perils of
Historical Narrative," _Atlantic Monthly_ (Sept., 1890), LXVI,
289-97.
[5] BERNHÖFT, _op. cit._, 1-4, has noted the danger of
inference, especially from written laws, where there has been a
mixture of races and institutions: "Denn die Rechtsinstitute sind
eben nicht aus einem einheitlichen Prinzip erwachsen, sondern aus
einem Kompromiss verschiedener Prinzipien entstanden, welche sich
gegenseitig einschränken und durchbrechen."
[6] It is a merit of Westermarck's book that he has "put
particular stress upon psychological causes which have often
been deplorably overlooked."--_Op. cit._, 5. _Cf._ also
STARCKE, _op. cit._, 4.
[7] "Yet nothing has been more fatal to the Science of Society
than the habit of inferring, without sufficient reasons,
from the prevalence of a custom or institution among some
savage peoples, that this custom, this institution, is a
relic of a stage of development that the whole human race
once went through."--WESTERMARCK, _op. cit._, 2.
_Cf._ POST, _Studien zur Entwicklungsgeschichte des
Familienrechts_, 1-3, 58.
I. STATEMENT OF THE THEORY
Students of comparative institutions have generally regarded the
family as the unit or germ from which the higher forms of social
organism have been evolved. A German scholar declares that among
all the races of antiquity "the constitution of the family was
the basis and prototype of the constitution of the state."[8]
The same theory is clearly set forth and the process of political
expansion carefully described by Plato and also by Aristotle,[9]
who base it upon their own observation both among "Hellenes and
barbarians," and each illustrates it by reference to the Cyclops of
Homer.[10] It is not wholly improbable, as will presently appear,
that the family in some form must be accepted as the initial
society, possibly among all the races of mankind. At a very early
ethnical period the family, so far as it implies great authority,
perhaps even the despotic power of the house-father over his wife
and children, may often have been "patriarchal." To admit this,
however, is very different from accepting as the primordial cell
of social development the strictly defined patriarchal family of
Sir Henry Maine's _Ancient Law_. In this book, which made its
appearance in 1861, we are told that the "effect of the evidence
derived from comparative jurisprudence is to establish that view
of the primeval condition of the human race which is known as the
Patriarchal Theory."[11] The primitive family as thus conceived is
substantially the Roman family, not in all respects as it actually
appears in the historical period, but as it is thought that it
must have been before the process of transformation and decay
began. It is a much more extended group than the modern family,
embracing under the headship of the eldest valid male parent all
agnatic descendants and all persons united to it by adoption, as
well as slaves, clients, and other dependents.[12] The power of
the house-father is most despotic, though exercised during his
entire lifetime over the unmarried daughters and over even the
married sons and their wives and children. Thus originally, it
is said, the Roman _pater familias_ has power of life and death,
_vita necisque_, over his children. He may sell them into slavery,
and sons, even those who hold the highest offices of state, can
originally own no property.[13] The patriarch is king and priest
of the household. As a sort of "corporation sole," he is likewise
its representative and administrator; for the property is regarded
as a part of the family, and on the death of the house-father the
family devolves upon the universal successor.[14] A characteristic
feature of the patriarchal family is agnation, or the system of
tracing kinship through males only.[15] Agnatic relationship "is in
truth the connection between members of the family, conceived as
it was in the most ancient times."[16] Its foundation is "not the
marriage of father and mother, but the authority of the father....
In truth, in the primitive view, relationship is exactly limited
by _patria potestas_. Where the _potestas_ begins, kinship begins;
and therefore adoptive relatives are among the kindred. Where
the _potestas_ ends, kinship ends; so that a son emancipated by
his father loses all rights of agnation. And here we have the
reason why the descendants of females are outside the limits of
archaic kinship." Indeed "it is obvious that the organization of
primitive societies would have been confounded, if men had called
themselves relatives of their mother's relatives."[17] The basis
of the patriarchal family is the _patria potestas_, but in its
"normal shape" it has not been and could not be "generally a durable
institution."[18] Yet its former universality may be inferred from
certain derivative institutions, such as the perpetual tutelage of
women, the guardianship of minors, the relation of master and slave,
and especially from agnation which is found "almost everywhere"
and is "as it were a mould" retaining the imprint of the paternal
powers after they have ceased to exist.[19] Applying this test
chiefly, Maine finds evidence of the existence of the _potestas_
among the Hebrews as well as all the peoples of the Aryan stock; and
he believes that it would be hard to say "of what races of men it
is _not_ allowable to lay down that the society in which they are
united was originally organized on the patriarchal model."[20]
[8] MARQUARDT, _Das Privatleben der Römer_, I, 1.
The theory is also held by BLUNTSCHLI, _Theory of
the State_, 182-89; SCHRADER, _Sprachvergleichung
und Urgeschichte_, 391-95; LEIST, _Alt-arisches
Jus Gentium_, 113; MÜLLER, _Handbuch der klass.
Alterthumswissenschaft_, IV, 18-20; GILBERT, _Handbuch
der griech. Staatsalterthümer_, II, 302; MAINE, _Village
Communities_, 15 ff.; _Ancient Law_, 118 ff.; _Early Law and
Custom_, chap. iii; FUSTEL DE COULANGES, _Ancient
City_, 111 ff.; GROTE, _History of Greece_, I, 561;
THÜMSER, _Die griech. Staatsalterthümer_, 28 ff.
[9] PLATO, _Laws_, Book III, 680, 681: JOWETT,
_Dialogues_, IV, 209; ARISTOTLE, _Politics_, Book
I, 2 ff.: JOWETT, I, 2 ff. These are followed by
CICERO, _De Officiis_, I, 17.
[10] "They (the Cyclops) have neither assemblies for consultation
nor _themistes_, but everyone exercises jurisdiction over
his wives and his children, and they pay no regard to one
another."--_Odyssey_, Book IX, 106 ff., as rendered by
MAINE, _Ancient Law_, 120. _Cf. Odyssey_, Book VI,
5 ff.; BRYANT'S Trans., I, 144, 215, 216. On the
_themistes_, as inspired commands of the hero-king, handed down
to him from Zeus by Themis, see MAINE, chap. i; and
on the import of the passage in Homer compare _ibid._, 120,
with FREEMAN, _Comparative Politics_, 379 n. 20, and
BOTSFORD, _Athenian Constitution_, 3, 4.
[11] _Ancient Law_, 118.
[12] Clients, servants, and even those admitted to the hearth
as guests, by observance of the proper rites, were regarded
as members of the family group and sharers in the _sacra_.
HEARN, _Aryan Household_, 73, 107 f.; FUSTEL DE
COULANGES, _Ancient City_, 150; MAINE, _op. cit._,
156 ff., 185 ff. (_sacra_).
[13] For the Roman _patria potestas_ see POSTE, _Gaius_,
61 ff.; LEIST, _Graeco-italische Rechtsgeschichte_,
57-102; SOHM, _Institutes_, 120 ff., 356 ff.,
385-95; BERNHÖFT, _Römische Königszeit_, 175 ff.;
PUCHTA, _Institutionen_, II, 384 ff.; MOREY,
_Outlines of Roman Law_, 23, 24; SCHEURL,
_Institutionen_, 271, 272; KUNTZE, _Excurse_, 570
ff.; MAINE, _Ancient Law_, 123 ff., 130 ff., 227,
228; HADLEY, _Roman Law_, 119 ff.; CLARK,
_Early Roman Law_, 25; MUIRHEAD, _Hist. Int. to
the Private Law of Rome_, 27 ff., 118, 222; LANGE,
_Römische Alterthümer_, I, 112 ff.; GRUPEN, _Uxore
romana_, 19 ff., 37 ff.; BADER, _La femme romaine_,
75 ff.; TARDIEU, _Puissance paternelle_, 5 ff.;
BOURDIN, _Condition de la mère_, 9 ff. On the power of
the father to expose female infants during the early empire see
CAPES, _Age of the Antonines_, 19 f.
[14] MAINE, _Ancient Law_, 122, and chap. vi.
[15] On the Roman agnation see POSTE, _Gaius_, 113 ff.;
LEIST, _Graeco-italische Rechtsgeschichte_, 64 ff.;
SOHM, _Institutes_, 124, 355 ff.; PUCHTA,
_Institutionen_, II, 17 ff.; MOYLE, _Institutiones_, I,
155, 156; MOREY, _op. cit._, 6, 34; KUNTZE,
_Excurse_, 435-37 (_Agnationsverband_); LANGE, _Römische
Alterthümer_, I, 211 ff.; MUIRHEAD, _Hist. Int. to the
Private Law of Rome_, 43 ff., 122 ff.; HADLEY, _Roman
Law_, 130 ff.; MAINE, _op. cit._, 56, 141 ff.
[16] MAINE, _op. cit._, 142.
[17] _Ibid._, 144.
[18] _Ibid._, 141.
[19] _Ibid._, 141 ff., 145 ff.
[20] _Ibid._, 118 ff., _passim_.
The patriarchal family as thus constituted is the "type of an
archaic society in all the modifications which it was capable of
assuming." From it as in concentric circles have been successively
evolved all the higher forms of political organization. Everywhere,
as at Rome, "the aggregation of families forms the gens or house.
The aggregation of houses makes the tribe. The aggregation of tribes
constitutes the commonwealth."[21] The state is therefore the result
of the expansion of its primordial cell;[22] and the genealogical
organization of society precedes and overlaps the territorial. All
these groups, lower and higher, regard themselves as united by the
bond of kinship. But, as a matter of fact, the kinship is often
assumed; and the heterogeneity of blood is explained as the result
of the fiction of adoption by which relationship is artificially
extended and strangers are admitted to the _sacra_. Without this
fiction, says Maine, "I do not see how any one of the primitive
groups, whatever were their nature, could have absorbed another,
or on what terms any two of them could have combined, except those
of absolute superiority on one side and absolute subjection on
the other." Society could hardly have escaped from its "swaddling
clothes."[23] Furthermore, a strong motive for the artificial
extension of the family is derived from the worship of ancestors.
The earnest desire of the ancients for male issue to perpetuate the
family rites has tended to foster adoption, and it probably accounts
for the levirate and other similar expedients to provide an heir.[24]
[21] _Ibid._, 123, 124, 128. See the table of comparative groups
in SCHRADER, _Sprachvergleichung und Urgeschichte_, 394.
For the Ionic groups _cf._ SCHÖMANN, _Antiquities_,
317, 364; _Athenian Constitution_, 3-10; WACHSMUTH,
_Hist. Ant._, I, 342 f.; MÜLLER, _Handbuch_, IV, 17-22;
GROTE, _Hist. of Greece_, III, 52, 53. In general,
_cf._ FUSTEL DE COULANGES, _Ancient City_, 141 ff.;
HEARN, _Aryan Household_, 63 ff., 112 ff., _passim_;
LEIST, _Graeco-italische Rechtsgeschichte_ and
_Alt-arisches Jus Gentium_.
[22] For FREEMAN'S well-known theory of political
expansion see _Comparative Politics_, chap. iii.
[23] MAINE, _Ancient Law_, 125 ff., 26. On the new
mode of adoption in India see MAYNE, _Hindu Law and
Usage_, 88 ff.; LYALL, _Asiatic Studies_, chap. vii;
_Fortnightly Review_, Jan., 1877; JOLLY, _Hindu Law
of Partition_, 144-66. On the formation of non-genealogical
clans see HEARN, _Aryan Household_, 296 ff. _Cf._
POST'S discussion of "Künstliche Verwandtschaft" in
_Studien zur Entwicklungsgeschichte des Familienrechts_, 25-42:
KOHLER, _ZVR._, V, 415-40.
[24] MAINE, _Early Law and Custom_, chaps. iii,
iv, viii. For ancestor-worship see especially FUSTEL
DE COULANGES, _Ancient City_, 9-52; HEARN,
_Aryan Household_, 15 ff., 45, 46, 59, 60; TAYLOR,
_Primitive Culture_, II ("Animism"); MAYNE, _Hindu
Law and Usage_, 55, 438; LYALL, _Asiatic Studies_,
chap. ii; DURUY, _Hist. of Rome_, I, 206;
ZIMMER, _Altindisches Leben_, 413; BOTSFORD,
_Athenian Constitution_, 24, 25, _passim_, who holds against
SCHRADER, _Sprachvergleichung_ (2d ed.), 613-15, that
ancestor-worship arose before the separation of the Aryan
races. FUSTEL DE COULANGES, _Ancient City_, 49-51, and
HEARN regard the religious tie as of more importance
than the blood-bond in the formation of the gentile groups,
_Aryan Household_, 66; and LEIST, _Graeco-italische
Rechtsgeschichte_, 7 ff., 11 ff., also makes the formation of the
first recognized groups of relationship depend on the _sacra_.
_Cf._ KOHLER, in _ZVR._, VI, 409-17, for animism; and
for additional references, a subsequent note.
II. CRITICISM OF THE THEORY BY SPENCER AND McLENNAN
The patriarchal family of the _Ancient Law_, whose leading features
have now been presented, reappears with slight modification in the
later writings of Sir Henry Maine.[25] It has been widely accepted.
Yet it was inevitable that a theory which on its face appears to
neglect many of the most remarkable facts everywhere observable in
the social life of primitive men[26] should arouse most serious
doubt. Nor will it do, with Starcke,[27] to excuse the author on the
ground that his conclusions are intended to be true only for the
domain of the law-books, of comparative jurisprudence; for obviously
his language will not bear that construction.
[25] _Early Hist. of Institutions_, 64 ff., 115 ff., 217 ff.,
306-41; _Village Communities_, 15, 16, _passim_; _Early Law
and Custom_, chaps. iii, iv, and especially chaps. vii, viii,
where adverse criticism is considered. _Cf._ MCLENNAN,
_Patriarchal Theory_, 1-23, for a collation of the more important
passages of Maine's writings.
[26] "The rudiments of the social state, so far as they are
known to us at all, are known through testimony of three
sorts--accounts by contemporary observers of civilization less
advanced than their own, the records which particular races
have preserved concerning their primitive history, and ancient
law." Of these three sources of information, Maine regards
ancient law as the best. He fails entirely to appreciate the
true importance of the first source, from which, obviously, are
derived most of the data of recent ethnical, anthropological,
and sociological investigation, including much that Maine
himself has presented. _Cf._ the criticisms by SPENCER,
_Principles of Sociology_, I, 713, 714; LUBBOCK, _Origin
of Civilization_, 6 ff.; MCLENNAN, _Patriarchal Theory_,
29, 30.
[27] _Primitive Family_, 94, 95.
Herbert Spencer was the first writer to subject Maine's hypothesis
to a luminous criticism.[28] First he points out that Maine has
not been entirely guiltless of "the lofty contempt" entertained by
civilized peoples for their barbarous neighbors, which he himself
censures as a serious error. For he "has practically disregarded
the great mass of the uncivilized" peoples, and "ignored the vast
array of facts they present at variance with his theory." Nor, in
favor of a primitive patriarchal state, is it safe to assume that
"the implicit obedience of rude men to their parents is doubtless a
primary fact." For, "though among lower races, sons, while young,
may be subordinate, from lack of ability to resist; yet that they
remain subordinate when they become men cannot be assumed as a
uniform, and therefore as a primary, fact." This objection is
sustained by reference to many savage and barbarous tribes among
which parents exercise little or no control over the children.
Again, it is by no means established that "the history of political
ideas begins, in fact, with the assumption that kinship in blood
is the sole possible ground of community in political functions."
On the contrary, "political co-operation arises from the conflicts
of social groups with one another;"[29] and though it may be
facilitated by a feeling of common descent, examples of political
combination may be produced in which relationship is not considered.
Furthermore, it is hard to conceive how so advanced a conception of
government as is implied by the _patria potestas_ could exist in
the "infancy of society;" nor has it yet been proved that in the
primitive state the individual is entirely lost in the family group,
which holds all property in common. Instances of "personal monopoly"
of property among low races are not wanting. Finally the assumption
that in the primordial state women remained in perpetual tutelage is
without foundation; how far it is from the truth will be made clear
in future chapters.[30]
[28] _Principles of Sociology_, I, 713-37.
[29] _Ibid._, 716, 717, 540-53.
[30] See below, chap. iv. MR. SPENCER also points out
that Maine does not take into account "stages in human progress
earlier than the pastoral or agricultural."--_Op. cit._, I, 724
ff.
But the patriarchal theory has been vigorously attacked in its very
strongholds, the laws of the Hebrews and the primitive customs of
the Indo-Germanic peoples. The well-known polemic of the late J.
F. McLennan is of special interest in this connection.[31] Among
none of the Aryan races, the Romans only excepted, does he find
the _patria potestas_ or the strict rule of agnation; while among
them all, he believes, abundant evidence of original promiscuity
and of the maternal system of kinship is disclosed. Even the
Hebrew Scriptures, where Maine perceives "the chief lineaments"
of the patriarchal society,[32] so far from revealing the _patria
potestas_ and agnation, bear witness to "beena"[33] marriage and the
recognition of kinship in the female line.[34] Sir Henry Maine in
this connection refers incidentally to Sir Robert Filmer in whose
_Patriarchia_ the existence of the _patria potestas_ among the
ancient Hebrews is alleged. But, as McLennan justly observes, "to
those who have studied the controversy between Locke and Filmer[35]
it may seem wonderful that the truth of Filmer's main position
could be thus lightly assumed by anyone, and especially by any
lawyer, who had read Locke's masterly reply to the pleadings of his
opponent."[36] The principal conclusions of McLennan are sustained
in a striking way, for a sister-branch of the Semitic race, by the
researches of Wilken and Robertson Smith into the marriage customs
of early Arabia.[37] The ancient Hebrews did not have agnation; yet
they "traced descent from the father for the purposes of what we
may call rank, or a feeling of _caste_," and this was the source
of paternal power.[38] The house-father exercised a high degree
of authority over his wives and children, but he can scarcely be
regarded as a patriarch in the strict sense of the term.[39]
[31] _The Patriarchal Theory_, edited and completed by DONALD
MCLENNAN (London, 1885).
[32] _Ancient Law_, 118-20, 123.
[33] The marriage of Jacob with Laban's daughters is the case in
point. In "beena" marriage--the name given to the institution in
Ceylon--"the young husband leaves the family of his birth and
passes into the family of his wife, and to that he belongs as
long as the marriage subsists. The children born to him belong,
not to him, but to the family of their mother. Living with, he
works for, the family of his wife; and he commonly gains his
footing in it by service. His marriage involves usually a change
of village; nearly always (where the tribal system is in force)
a change of tribe--so that, as used to happen in New Zealand,
he may be bound even to take part in war against those of his
father's house; but always a change of family. The man leaves
father and mother as completely as, with the patriarchal family
prevailing, a bride would do; and he leaves them to live with
his wife and her family. That this accords with the passage in
Genesis will not be disputed." _Patriarchal Theory_, 42, 43.
Nevertheless, in this case McLennan is certainly mistaken. We
have here to do with that form of wife-purchase called "marriage
by service;" see LICHTSCHEIN, _Die Ehe_, 10, 11; the
argument of WAKE, _Marriage and Kinship_, 239-44; and
FRIEDRICHS, _Familienstufen und Eheformen, ZVR._, X,
207, 208. "Beena" marriage existed, however, among other Semitic
peoples and possibly also among the Hebrews: SMITH,
_Kinship and Marriage_, 108, 175-78, 146. It is found also in
Africa and in many other places: WAKE, _op. cit._, 149,
299-301; MCLENNAN, _op. cit._, 43; WESTERMARCK,
_Human Marriage_, 109, 389-90; TYLOR, _On a Method of
Investigating Institutions_, 246 ff.; STARCKE, _op.
cit._, 78; HELLWALD, _Die mensch. Familie_, 255, 266.
[34] On the Hebrew family see _Patriarchal Theory_, 35-50, 132,
133, 243-47, 273, 274 note, 289, 306, 307, 315, _passim_.
[35] FILMER'S _Patriarchia, or the Natural Power of
Kings_ appeared in 1680; LOCKE'S _Two Treatises on
Government_, in 1690. Both works are reprinted in the ninth
number of MORLEY'S _Universal Library_.
[36] See _Patriarchal Theory_, 36 ff., 243 ff., 273 note, where a
summary of Locke's argument, with additional evidence against the
existence of agnation and _patria potestas_ and in favor of an
original maternal system among the Hebrews, will be found.
[37] ROBERTSON SMITH, _Kinship and Marriage_;
WILKEN, _Das Matriarchat bei den alten Arabern_, a
work suggested by SMITH'S "Animal Worship and Animal
Tribes," _Journal of Philology_, IX, 75-100. These writers have
found among these Semitic tribes the system of kinship through
the mother in actual use, with traces of polyandry, exogamy, and
the totem _gens_; and Wilken believes that he finds evidences
of early promiscuity. See especially KOHLER, _Ueber
das vorislamitische Recht der Araber_, _ZVR._, VIII, 238-61;
and FRIEDRICHS, _Das Eherecht des Islam_, _ibid._,
VII, 240-84, especially 255 ff., who shows that the Mohammedan
house-father exercises great authority over his wife, yet she has
her own property and receives a dower. At present, relationship
in Arabia is generally counted in the male line; and therefore,
WESTERMARCK, _Human Marriage_, 102, note 4, regards the
conclusion of Smith that originally the system of female kinship
exclusively prevailed as "a mere hypothesis."
[38] WAKE, _Marriage and Kinship_, 244.
[39] According to EWALD the ancient Hebrew father might
"sell his child to relieve his own distress, or offer it to a
creditor as a pledge."--_The Antiquities of Israel_ (London,
1876), 190; WESTERMARCK, _op. cit._, 228; and the
Levitical law prescribes death as the penalty for striking a
parent (Leviticus 20:9; Exodus 21:15, 17); but the penalty could
only be administered through appeal to the whole community,
WESTERMARCK, _op. cit._, 228. _Cf._ MICHAELIS,
_Commentaries on the Laws of Moses_, I, 444, who shows that the
mother, as well as the father, might sometimes choose wives for
the sons; while McLennan and Locke prove that the position of
the mother in Israel was higher than is consistent with Roman
patriarchalism.
III. THE THEORY IN THE LIGHT OF RECENT RESEARCH
Let us now see somewhat more in detail what light is thrown by
recent investigation on the controversy between Maine and McLennan.
Westermarck has taken great pains to enumerate the uncivilized
peoples, chiefly non-Aryan, among whom descent and usually
inheritance follow the paternal side;[40] and he finds that the
number is "scarcely less" than the number of those among whom
the female line is exclusively recognized. But in many of these
cases it seems probable that the parental rather than the agnatic
system prevails, though the male line may take precedence. In some
instances rank or authority descends from father to son, while
in other respects the female line predominates. Doubtless more
frequently than is usually imagined a mixed system rather than a
strictly paternal or a strictly maternal system would be found
to exist.[41] As the result of his inquiry, Westermarck rejects
the hypothesis that kinship through the mother is a primitive and
universal stage, though he does not substitute the agnatic theory in
its place. Starcke, on the other hand, after an extended examination
of the customs of rude races, especially in America and Australia,
suggests that the paternal as a general rule probably preceded the
maternal system which arose only with the development of the gentile
organization.[42] But Starcke's evidence can scarcely be accepted as
convincing.
[40] _Human Marriage_, 97-104, notes. _Cf._ FRIEDRICHS,
"Ueber den Ursprung des Matriarchats," _ZVR._, VIII, 371-73;
KOHLER, _ibid._, VI, 403 (Korea); VII, 373 (Papuas).
[41] Compare WAKE, _Marriage and Kinship_, 267
ff., 362 ff., 382, 396 ff.; especially FRIEDRICHS,
"Familienstufen und Eheformen," _ZVR._, X, 209-12; and
DARGUN, _Mutterrecht und Vaterrecht_, 3, 28, 118, who
believes the so-called "mixed systems" are merely a consistent
union of two entirely different principles--the principle of
relationship with the principle of power or protection.
[42] STARCKE, _op. cit._, 26, 27 (Australia),
30 (America), 58 ff., 101 ff. Compare the criticism of
HELLWALD, _Die mensch. Familie_, 456 ff.; and on the
development of the patriarchal family, see LIPPERT,
_Kulturgeschichte_, II, 505-54.
Similar difficulties are presented by the question of the prevalence
of the so-called patriarchal power among non-Aryan races. Many
apparent examples of despotic authority can be enumerated;[43] but
it is often hard to determine whether, as in the cases of the Arabs
and Hebrews, we have to do merely with a high degree of power on
the part of the house-father or with a genuine _patria potestas_ of
the Roman type. Naturally, as Westermarck suggests, the father's
authority among savages "depends exclusively, or chiefly, upon his
superior strength;"[44] while anything like a patriarchal "system"
can only arise later under the influence of ancestor-worship and
more developed social and industrial conditions. Where authority
depends solely or mainly upon brute force, it is evident that a very
protracted patriarchal despotism over the sons is hard to conceive.
Moreover, much error has doubtless arisen through falsely assuming
that paternal authority and mother-right are incompatible; whereas
they may well coexist, as will presently appear.
[43] WESTERMARCK, _op. cit._, 224-35, gives an
enumeration. Noteworthy examples of patriarchal power are
afforded by the ancient Peruvians and Mexicans, and by the
modern Chinese and Japanese. On the Nahua and Maya natives see
BANCROFT, _Native Races_, II, 247-53, 663-68. _Cf._
KOHLER, "Das Recht der Azteken," _ZVR._, XI, 54, 55;
also _ibid._, VI, 374 (Chinese), 333, 334; VII, 373 (Papuas).
[44] _Op. cit._, 225.
For the Indo-Germanic or Aryan peoples the investigations of Zimmer,
Schrader, Delbrück, Kohler, and especially the researches of Leist,
enable us to speak with a higher degree of confidence, though only
for the period covered by positive linguistic and legal evidence.
Bachofen, McLennan, and after them many other writers,[45] as will
later be shown, have maintained that among all branches of the Aryan
stock conclusive proofs exist of a former matriarchate, or, at any
rate, of exclusive succession in the female line. But this view is
decidedly rejected, if not entirely overthrown, by the philologists,
and depends for its support on the presence in later institutions
of alleged survivals. The judgment of Delbrück must probably be
accepted as decisive for the present state of linguistic, if not
of all scientific, inquiry. He declares that "no sure traces of a
former maternal family among the Indo-Germanic peoples have been
produced."[46] Similar conclusions are reached by Schrader, Max
Müller, and Leist.[47] Also, among the institutional writers, Wake
declares that "primitively among the peoples belonging to the
wide-spread Aryan or Indo-European stock, while relationship was
acknowledged through both parents, descent was traced preferably
in the male line;"[48] and Bernhöft, constrained through the
evidence presented by Schrader and Delbrück, believes that it is
now placed "beyond question that the primitive Aryans did not
live according to mother-right," but were united in family groups
resembling the south Slavonian house communities.[49] On the other
hand, Dargun, the foremost defender of the theory of mother-right,
thinks that Bernhöft has "capitulated" too easily.[50] In his last
monograph, entitled _Mutterrecht und Vaterrecht_, he maintains
essentially the conclusion of his _Mutterrecht und Raubehe_,
that before their separation the Aryan people had developed the
system of kinship "through the mother as the only or chief basis
of blood-relationship" and had "subordinated their entire family
law to this principle."[51] But the later treatise contains a very
important modification, or perhaps, more justly speaking, extension,
of the author's theory. Setting aside as still an open question the
general prevalence of promiscuity or sexual communism at the very
dawn of distinctively human life, Dargun conceives that, before
any system of kinship, maternal or agnatic, became recognized
as a principle of customary family law, there must have existed
a family, or rather parent-group (_Elterngruppe_), in which the
father was protector and master of the mother and her children.
This parent-group is the "hypothetical primordial cell of the
family," brought together by sexual requirements and the need of
sustenance and protection. It is "structureless, devoid of any firm
bond, since it rests neither upon the principle of relationship
nor that of legalized power." Its resemblance to the patriarchal
family, though misleading, "is not without significance." For it
"forms the necessary stage of an evolution which in analogous
manner is also passed through by property. Inductively it is still
demonstrable that individualism and atomism, not communism, as is
usually assumed, are the starting point of evolution."[52] As a
general rule, according to Dargun, the structureless parent-group is
superseded by the maternal family, whose basis is mother-right, or
the exclusive legal recognition of blood-relationship in the female
line. Only in rare cases does the patriarchal agnatic family follow
immediately upon the primitive group, without prior development of
mother-right;[53] and hence, under exceptional conditions hindering
the rise of the maternal system, do we find a form of the family in
which, from a very early period, the house-father is the source of
authority, practical or legalized.
[45] BACHOFEN, _Das Mutterrecht_; MCLENNAN,
_Studies_, I, 121 ff., 195 ff.; _idem_, _Patriarchal
Theory_, 50 ff., 71 ff., 96 ff., 120 ff., 250 ff.;
DARGUN, _Mutterrecht und Raubehe_, 8, 13, _passim_;
GIRAUD-TEULON, _Les orignes du mariage_, 130 ff.,
286 ff., 329 ff.; _idem_, _La mère chez certaines peuples de
l'antiquité_; LIPPERT, _Geschichte der Familie_, 4
ff.; LUBBOCK, _Origin of Civilization_, 153, 154.
KOHLER, "Indisches Ehe- und Familienrecht," _ZVR._, III,
393 ff., holds that the primitive Aryans must necessarily have
recognized relationship through the mother. For the literature of
this subject see the next chapter.
[46] DELBRÜCK, "Das Mutterrecht bei den Indogermanen,"
_Preussiche Jahrbücher_, XCVI, 14-27, a clear summary of the
results of recent research. _Cf._ his _Die Indogermanischen
Verwandtschaftsnamen_ (Leipzig, 1889). According to
HELLWALD, _Die mensch. Familie_, 453-80, especially 459,
460, patriarchalism was fully established at the earliest dawn
of Indic history; but there are nevertheless traces of earlier
mother-right.
[47] SCHRADER, _Sprachvergleichung und Urgeschichte_
(2d ed.), 536 ff.; JEVONS'S Translation, 369 ff.;
LEIST, _Alt-arisches Jus Gentium_, 51-58. MAX
MÜLLER declares that "whether in unknown times the Aryas
ever passed through that metrocratic stage in which the children
and all family property belong to the mother, and fathers have no
recognized position whatever in the family, we can neither assert
nor deny."--_Biographies of Words_, xvii.
[48] WAKE, _Marriage and Kinship_, 359 ff., especially
382, where a thorough and detailed criticism of McLennan's theory
is given.
[49] BERNHÖFT, "Die Principien des eur. Familienrechts,"
_ZVR._, IX, 418, 419, 437 ff. See also his _Römische Königszeit_,
202 ff.; and his articles in _ZVR._, VIII, 11; IV., 227 ff.; and
compare DARGUN, _Mutterrecht und Vaterrecht_, 91-94,
108. STARCKE, _op. cit._, 101-18, also gives a searching
examination of the theory of McLennan and the earlier views of
Dargun, rejecting their conclusions.
[50] _Mutterrecht und Vaterrecht_, 108.
[51] DARGUN, _Mutterrecht und Raubehe_, 13. _Cf._ the
_Mutterrecht und Vaterrecht_, 95, 117 ff., _passim_.
[52] DARGUN, _Mutterrecht und Vaterrecht_, 41, 42, 4
ff., 28, 29-42, 118, _passim_.
[53] DARGUN, _op. cit._, 41.
Aside from his theory of evolution, in his principal thesis,
which he fairly sustains by powerful argument, Dargun has
rendered to science a distinct service. It is, he insists,
highly necessary carefully to distinguish between _power_ and
_relationship_. "Mother-right" does not involve "maternal power"
or the matriarchate, though sometimes actually united with it; nor
does the headship of the house-father as provider, protector, and
master imply agnation, the so-called "father-right." There is no
contrast between power and relationship. "Mother-right in the sense
of exclusive maternal kinship is compatible with a patriarchate
just as exclusive." They may, and often do, coexist. It follows
that the presence of the maternal system of kinship does not imply
the existence of maternal power; just as it does not imply the
non-existence of paternal authority. The distinction between power
and kinship is justly declared to be an "indispensable key" for the
solution of the greatest difficulties arising in this branch of
sociological science, the disregard of which has often vitiated or
confused the argument even of the foremost investigators.[54] With
the aid of his key Dargun examines the linguistic evidence, which he
finds favorable to the existence of mother-right among all the Aryan
peoples after the separation, though united with a real supremacy
of the house-father;[55] and he protests vigorously against the
tendency, even on the part of Leist, to confound old Indic with
old Aryan law; for the "Indians of the Vedas are in many respects
more advanced than the Germans a thousand or the Slavs two thousand
years later."[56] Valuable as the criticism of Dargun undoubtedly
is, notably his distinction between power and relationship, it can
scarcely be admitted that he has done more than reopen the question
of the existence at any time of mother-right among the Aryans. His
results are negative. He has not shifted the burden of proof; while
his argument tends to confirm the view of the philologists that from
the primitive stage the Aryan father was head of the household.[57]
[54] _Ibid._, 3 ff., 28, 36, 86 ff., 155, _passim_. As remarked
in the text, the whole work is concerned with the thesis in
question. The distinction is also made in the _Mutterrecht und
Raubehe_, 18.
[55] See _Mutterrecht und Vaterrecht_, 86-116, for his criticism
of the linguistic argument.
[56] _Ibid._, 91, 92. _Cf._ a similar protest against conclusions
as to the primitive Aryans derived from Greek and Roman sources,
_ibid._, 116; and _Mutterrecht und Raubehe_, 14.
[57] _Mutterrecht und Vaterrecht_, 69, denies that women have
ever attained political headship; but (113, 114) declares,
though the researches of the philologists make it probable that
the Aryans lived under the rule of house-fathers, that neither
this fact nor any other circumstance tells against the view that
mother-right coexisted from antiquity; while, in a still more
remote period, this may have implied matriarchal power in the
family; but of such a matriarchate no proofs are presented.
But the patriarchal theory, strictly considered, fares little better
than the maternal at the hands of recent investigators. Leist,
who has been able with wonderful completeness to reconstruct the
juridical life of the early household, though largely on the basis
of old Indic sources, declares positively that "the Aryan people
has not within itself a single element of patriarchalism."[58] This
statement, as Bernhöft observes,[59] is perhaps too sweeping, even
when tested by the results of Leist's own researches; but the
patriarchal family of Sir Henry Maine does not appear. The evolution
of juridical conceptions among the old Aryans, according to Leist,
presents two general phases. First is the _rita_ stage, or period
of fixed, divinely appointed order, of natural law, corresponding
to the Greek _cosmos_ or _phusis_ and the Latin _ratum_ or _ratio
naturalis_. In this "natural _history_" or pantheistic stage there
is at first little idea of law as something to be separately
contemplated. Under _rita_ is comprehended the unchangeable order
observable in the material world as well as in the physical and
social life of man; but the universe and the creative energy, the
All and Varuna, are identified or blended in thought.[60] Only
slowly are these concepts differentiated and the immutable order
of nature becomes looked upon as _dhama_, or a holy ordinance
established by Varuna, who now appears as a protecting and creative
spirit.
[58] LEIST, _Graeco-italische Rechtsgeschichte_, 64.
This work is continued in the _Alt-arisches Jus Gentium_, the
two books really constituting a single treatise. Compare the
more conservative view of JOLLY, _Ueber die rechtliche
Stellung der Frau_, 4 ff., 20-22, and _Hindu Law of Partition_,
76 ff., who, however, denies the existence of an authority on the
part of the Hindu husband equal to that of the Roman _pater_.
[59] BERNHÖFT, "Zur Geschichte des eur. Familienrechts,"
_ZVR._, VIII, 12, 15, who also regards the view of
DARGUN, _Mutterrecht und Raubehe_, 8, 13, as extreme.
_Cf._ his "Principien des eur. Familienrechts," _ZVR._, IX, 416,
n. 39. KOHLER favors the patriarchal system and agnation
for the Indic peoples, in _ZVR._, VII, 201, 210, 216; X, 85.
HEARN, _Aryan Household_, chaps. iii-vi, _passim_, takes
practically the same view as Maine regarding the patriarchal
theory, rejecting entirely for the Aryans the matriarchal
hypothesis.
[60] The _rita_-conception is well expressed by DR.
BOTSFORD: "This mankind learned from the revolution of
sun and stars, from the succession of the seasons, from the
unchanging movements of nature. The conception thus gained was
transferred to human modes of activity. The sexes in marriage
were subject to the _naturalis ratio_, as well as the continuance
of the race through successive generations. The relation of
parents to children with their reciprocal obligations and
privileges--the protection and support which the father, as
the stronger, offered, the kind care of the mother for her
infants, the reverence and affection with which the children
requited their services, the love of youth and maiden, leading
to marriage--all these rested, in the _rita_ period, on the one
foundation of natural law."--_Athenian Constitution_, 29, 30.
_Dhama_ thus forms a means of transition to the second juridical
phase, that of _dharma_, or divine law, corresponding to the Greek
_themis_ and the Latin _fas_.[61] In the _dharma_ period, law is
regarded as inspired by the gods, whose earthly agent, the priest or
hero-king, is intrusted with its application; and in it the rules
governing civil and public conduct, according to modern conceptions,
are not distinguished from those relating to manners, morality, or
religion. When history dawns, our early Aryan ancestors had already
entered the _dharma_ phase of evolution; and even now the Hindus
have scarcely gained the third phase, prevailing in the civilized
West, in which the element of "civil law" is separate from all other
ingredients.[62]
[61] The discussion of the two general phases of _rita_ and
_dharma_, with their transitional stages, constitutes one of
the most valuable parts of LEIST'S contribution to
comparative jurisprudence: _Alt-arisches Jus Gentium_, 3, 111
ff., 132, 133, 174 ff., 606; _Graeco-italische Rechtsgeschichte_,
175-285. _Cf._ BOTSFORD, _op. cit._, 24, 25, 26 ff., for
an excellent account; on the Roman stages see MUIRHEAD,
_Private Law of Rome_, 14-23; and for the Greek _themis_ and the
_themistes_ of the hero-kings consult MAINE, _Ancient
Law_, chap. i.
[62] For a definition of _dharma_ see BERNHÖFT, "Ueber
die Grundlagen der Rechtsentwicklung bei den indogermanischen
Völkern," _ZVR._, II, 266 ff., 261 ff.
Of the family relations of our primitive ancestors in the _rita_
period we know little, except through inference or analogy. The
so-called "natural forms" of marriage by purchase and capture were
doubtless practiced, but probably not exclusively; and these customs
were handed down to the second period, though they were modified to
bring them into harmony with the higher ethical and social ideas
which had then gained predominance.[63] Whether or not the absolute
power of the father and the strict rule of agnation prevailed it
would be as difficult to affirm as to deny.[64] In the _dharma_
period the ancient _rita_ conception of marriage as an ordinance
of nature, whose real purpose is to provide posterity, is still
retained; but it gains a social character.[65] The central principle
of the Aryan household is the Hestia-Vesta cult, or the worship of
the sacred hearth. To gain the protection of the ancestral gods
the hearth-fire must be kept always burning; and the care of the
family _sacra_ is the special function of the house-father, who is
lord and priest of the family. But the house-mother holds a worthy
position in the domestic worship. From the first kindling of the
hearth-fire at the nuptials, she appears as co-priestess and helper
of her husband in the sacred rites. The whole life-partnership of
the wedded pair is shaped and dominated by lofty religious motives.
The Aryan housewife is not the chattel of her husband; she is a
free woman and shares in his highest sacred functions. The primary
purpose of the union is the birth of a legitimate son to perpetuate
the paternal line and to foster the ancestral cult.[66] So paramount
is this motive that, in case no son is born in wedlock, resort may
be had to adoption, or to analogous expedients for the fictitious
extension of fatherhood. For among the Aryans, as Maine suggests,
the fiction of adoption is of the highest legal importance; and,
indeed, very widely among the races of mankind it has served a
useful purpose in social progress.[67] Here also the Aryan wife
appears as co-priestess with her husband. Each is regarded as having
a share in the begetting of the child, and they unite in giving
the son in adoption to another household.[68] Accordingly the wife
is not the mere chattel of her husband, who owns the children by
virtue of his proprietorship in the mother.[69] The house-father
appears in the sacred books as lord of the wife, who owes him
reverence and obedience; yet she is not reduced to patriarchal
slavery. With the husband she exercises joint control over the sons;
and these are released entirely from parental authority when they
marry and establish new households.[70] The male line takes legal
precedence; but the maternal kindred are clearly recognized in a
way wholly inconsistent with strict agnation.[71] According to the
primitive Indic conception the wife is regarded as incapable of
property. Neither the widow nor the daughters could inherit, the
estate passing to the sons as in theory a means of providing for
the _sacra_ of the deceased house-father. Still the bride possessed
her personal belongings--her couch, clothing, and ornaments; and
from this germ gradually arose, beginning even in remote antiquity,
her existing rights of property and inheritance.[72] In short, the
old Aryan household reveals but the elements of agnation and the
_potestas_ as they appear in the Roman law.[73]
[63] LEIST, _Alt-arisches Jus Gentium_, 122 ff., 125-33.
[64] BOTSFORD, _Athenian Constitution_, 10 ff., 21
ff., 25 ff., divides the _rita_ period into two stages: that of
the "primitive Aryan household," and that of the "early Ayran
household," and thinks that the latter stage is represented by
the house-communities of the southern Slavs; but this may be
doubted. Dr. Botsford favors the existence of agnation and the
absolute power of the father in the _rita_ period; and believes
that the liberal tendencies, presently to be pointed out, are
a development of the _dharma_ period, beginning before the
separation (24-26). On agnation and the power of the early Aryan
house-fathers see SCHRADER, _Sprachvergleichung und
Urgeschichte_, 386 ff.; ZIMMER, _Altindisches Leben_,
319 ff., 326 ff.; DELBRÜCK, _Die indogermanischen
Verwandtschaftsnamen_, 382, 586-88, 543, 544; JOLLY,
_Ueber die rechtliche Stellung_, etc., 4 ff., 20-22; _Hindu Law
of Partition_, 76 ff.
[65] LEIST, _op. cit._, 80.
[66] On ancestor-worship, in connection with the literature
already cited, p. 13, note 4, see LEIST,
_Graeco-italische Rechtsgeschichte_, 7 ff., 121 ff.;
_Alt-arisches Jus Gentium_, 59-118; ZIMMER,
_Altindisches Leben_, 318; SCHNEIDER, _Die Naturvölker_,
I, 202 ff., II, 64 f., 75, 76, 108, 126 f., 255 ff., 369;
KOHLER, "Indisches Ehe- und Familienrecht," _ZVR._, III,
408 ff.; "Studien über künstliche Verwandtschaft," _ibid._, V,
423-25; also for the Papuas, _ibid._, VII, 373. For the influence
of ancestor-worship among the Slavs see KOVALEVSKY,
_Mod. Customs and Anc. Laws of Russia_, 33 ff.; among the
American aborigines, PEET, "Ethnographic Religions and
Ancestor-Worship," _Am. Antiquarian_, XV, 230-45, and "Personal
Divinities and Culture Heroes," _ibid._, 348-72.
[67] MCLENNAN, _Patriarchal Theory_, 10-14, 275 ff.,
282, 284, 294, criticises Maine's theory of adoption. Kohler's
investigations show that adoption, artificial brotherhood,
milk-kinship, and like institutions have widely prevailed and
rendered important service. Adoption, he holds, may arise in
different motives; sometimes being due to sexual communism, when
it is a means of assigning the children to particular fathers;
but very generally arising in the desire for descendants to
perpetuate the family-worship: "Studien über die künstliche
Verwandtschaft," _ZVR._, V, 415-40; see also for much important
matter his various other writings in _ZVR._, III, 408-24, 393
ff. (India); VI, 190 (Chins), 345 (Indian Archipelago), 377-79
(China), 403 (Korea); VII, 218 ff. (Punjab); VIII, 100 (Rajputs),
109-12 (Dekkan), 243, 244 (Arabia). See also POST,
_Familienrecht_, 25-42, for an interesting account; also
MAYNE, _Hindu Law and Usage_, 60 ff., 77, 99-207;
LEIST, _Alt-arisches Jus Gentium_, 103 ff., 115, 606;
TORNAUW, "Das Erbrecht nach den Verordnungen des
Islams," _ZVR._, V, 151; FRIEDRICHS, "Familienstufen
und Eheformen," _ibid._, X, 237-45; STARCKE, _Primitive
Family_, 146, 233; HUC, _Chinese Empire_, II, 226.
[68] LEIST, _op. cit._, 103, 115, 504 ff. On the
position of the house-mother _cf._ HEARN, _Aryan
Household_, 86-91.
[69] LEIST, _op. cit._, 122, 123, 126 ff., successfully
combats the theory of KOHLER ("Indisches Ehe- und
Familienrecht," _ZVR._, III, 394), who declares that it is
a cardinal principle of Indo-Germanic legal evolution that
"die Vaterschaft beruht auf dem Rechte des Mannes am Weibe,
kraft dessen dem Hausvater das Kind des Weibes zukomme, ebenso
wie dem Eigenthümer des Feldes die Frucht." The same view is
expressed by KOHLER in _Krit. Vjschr_, N. F., IV, 17,
18; and in "Vorislamitisches Recht," _ZVR._, VIII, 242. _Cf._
UNGER, _Die Ehe_, 11, 77; LIPPERT, _Geschichte
der Familie_, 95 ff., 99, 158.
[70] Although the married son possessed a hearth and was a free
member of the _gens_, "his house did not become fully independent
in religious and property matters till the death of the father
and the final division of the property."--BOTSFORD,
_Athenian Constitution_, 27, and the sources there cited. _Cf._
ZIMMER, _Altindisches Leben_, 326 ff.; LEIST,
_Alt-arisches Jus Gentium_, 124.
[71] MCLENNAN, _Patriarchal Theory_, chaps. xvi, xvii;
LEIST, _op. cit._, 124, 504 ff.
[72] LEIST, _op. cit._, 496-508; KOHLER,
"Indisches Ehe- und Familienrecht," _ZVR._, III, 424 ff.
[73] LEIST, _Graeco-italische Rechtsgeschichte_, 95,
96. Lack of space prevents any attempt at a detailed discussion
of the old Aryan or Indic family and matrimonial law; a general
reference must suffice: LEIST, _Alt-arisches Jus
Gentium_, 59 ff., 496 ff.; _Graeco-italische Rechtsgeschichte_,
7 ff., 57 ff., _passim_; SCHRADER, _Sprachvergleichung
und Urgeschichte_, 379-95; ZIMMER, _Altindisches
Leben_, 305-36; JOLLY, _Rechtliche Stellung_, 1 ff.;
_idem_, _Hindu Law of Partition_, 70 ff.; KOHLER,
"Indisches Ehe- und Familienrecht," _ZVR._, III, 342-442; and
his various articles, _ibid._, VI, 344-46 (Indian Archipelago
and Caroline Islands); VII, 201-39 (Punjab); VIII, 89-147,
262-73 (Indian customary law); IX, 323-36 (Bengal); X,
66-134 (Bombay); XI, 163-74 (Indian North-west Provinces);
BOTSFORD, _Athenian Constitution_, 2-67 (excellent);
WAKE, _Marriage and Kinship_, 159 ff., 355 ff., index;
BERNHÖFT, "Altindisches Familienorganisation," _ZVR._,
IX, 1-45; MCLENNAN, _Patriarchal Theory_, 50 ff., 96
ff., especially the chapters on "sonship among the Hindoos,"
266-339, combating the view of MAINE, _Early Law and
Custom_, 78-121, 232 ff.; _Early Hist. of Inst._, 116-18,
310 ff.; and MAYNE, _Hindu Law and Usage_, 50 ff.,
60 ff., _passim_; STARCKE, _Primitive Family_, 100
ff.; LETOURNEAU, _L'évolution du mariage_, index;
HEARN, _Aryan Household_; UNGER, _Die Ehe_,
21-27; BADER, _La femme dans l'Inde antique_, 39 ff.;
JACOLLIOT, _La femme dans l'Inde_, 7 ff.
This conclusion is confirmed by the customs of the Aryan peoples
after the separation. Among the Hellenes at the first dawn of
history the family appears as a member of the _gens_, which is held
together usually by the ties of blood-relationship. The house-father
is lord or monarch of the family. But his authority is tempered in
various ways. Originally, as among the primitive Aryans, he may
have exercised the power of life and death over his children; but
in no case could he "put a child to death without the consent of
the collective ancestors," or near kindred.[74] By the Aryans the
_jus vitae necisque_ was never looked upon as an arbitrary right
of destruction, but merely as a means of domestic discipline.[75]
The Greek father might sell his minor sons and unmarried daughters;
but "it appears that, even here, merely the labor of the youth and
not the person itself was disposed of by sale," and the custom was
controlled by the usage of the _gens_.[76] The wife, as among the
Hindus, holds a dignified position in the household. She is her
husband's partner in the domestic economy and the sacred rites.
Equally with him she is "the cause of the son's existence," and in
consequence exercises over him conjointly with the father the powers
of sale and life and death.[77] Thus Hellenic custom preserves the
essential element of the Aryan paternal authority, which signifies
a protecting, not an arbitrary or ruthlessly destructive, power.
Among the historic Greeks the agnatic principle finds expression
especially in the right of guardianship, which is transmitted in
the paternal line. Such is the judgment of Leist, whose masterly
account of the development of the Aryan agnatic conception proves
that here as elsewhere the Roman and the Greek stood upon common
ground.[78] The point of divergence is the lifelong continuance of
the Roman _potestas_; whereas in Hellas the son was emancipated at
maturity.[79]
[74] BOTSFORD, _Athenian Constitution_, 50;
LEIST, _Graeco-italische Rechtsgeschichte_, 59 ff.
WESTERMARCK, _Human Marriage_, 230, justly observes that
the power of the father among the Greeks, Germans, and Celts,
"to expose his children when they were very young and to sell
his marriageable daughters, does not imply the possession of a
sovereignty like that which the Roman house-father exercised over
his descendants at all ages."
[75] LEIST, _op. cit._, 60, and 59 ff., for his
discussion of the Aryan custom of exposing new-born children.
[76] BOTSFORD, _op. cit._, 51; FUSTEL
DE COULANGES, _Ancient City_, 118, 120, notes;
PLUTARCH, _Solon_, 13.
[77] BOTSFORD, _op. cit._, 52; LEIST, _op.
cit._, 57, 58, 64, 11 ff.
[78] _Ibid._, 57-102.
[79] In the post-Homeric age agnation did not exist; see
BOTSFORD, _op. cit._, 73. In general on the Greek family
see HRUZA, _Ehebegründung nach attischem Rechte_,
8 ff.; MCLENNAN, _Studies_, I, 121-23, especially
the essay on "Kinship in Ancient Greece," _ibid._, 195-246
(favoring the maternal system); BOTSFORD, _op. cit._,
chaps. i, ii, iii, supporting the patriarchal theory; but Dr.
Botsford's patriarchal family is not that of Sir Henry Maine;
LASAULX, _Zur Gesch. u. Philos. der Ehe bei den
Griechen_, 3 ff.; DARGUN, _Mutterrecht und Raubehe_, 2,
3, 14; GIRAUD-TEULON, _Les origines, etc._, 286-301;
WAKE, _Marriage and Kinship_, 24 ff., 355 ff., 366 ff.,
who criticises McLennan's view in detail for the Aryan peoples;
KOVALEVSKY, _Tableau_, 35, 36; BERNHÖFT, "Das
Gesetz von Gortyn," _ZVR._, VI, 281-304, 430-40; and his "Ehe-
und Erbrecht der griechischen Heroenzeit," _ibid._, XI, 326-64,
both articles being of great value; KOHLER, "Die Ionsage
und Vaterrecht," _ibid._, V, 407-14, who proves the existence of
"judicial" fatherhood; WESTERMARCK, _Human Marriage_,
232, 233; UNGER, _Die Ehe_, 52-65; BADER, _La
femme grecque_, I, 41 ff.; II, 1 ff. See also HEARN,
_Aryan Household_, and FUSTEL DE COULANGES, _Ancient
City_, for much valuable matter.
Examination of the customs of the Celts,[80] the Slavonians,[81]
and ancient Germans[82] leads to a like result. Accordingly we are
forced to admit the accuracy of Gaius's conclusion. Writing in the
time of the Antonines, he declares his belief that the _patria
potestas_ is peculiarly a Roman institution. Only among the Asiatic
Galatæ had he observed a similar authority exercised by the father
over his children.[83] Instead of existing "almost everywhere,"
often preserving as in a mold the imprint of the paternal power
which it has outlived and upon which it is thought always to depend,
among Aryan peoples agnation is found together with the _potestas_
only in one instance, that of the Roman law; and even in this case
it was virtually the first to expire.[84] For, as is well known to
the student of Roman jurisprudence, strict agnation, as determining
right of succession, disappeared under the influence of the edict
and imperial statutes long before the last vestige of the real
_patria potestas_ was swept away by the legislation of Justinian.[85]
[80] MCLENNAN, _Patriarchal Theory_, 120-31; _Studies_,
I, 68 ff., 118; GIRAUD-TEULON, _Les origines, etc._,
329-32; KOVALEVSKY, _Tableau_, 31, 32; MAINE,
_Early Hist. of Inst._, 216 ff., _passim_.
[81] The South Slavonian house community is an early
institution; see KRAUSS, _Sitte und Brauch der
Südslaven_, 2 ff., 64-128; BOTSFORD, _op. cit._, 12-21;
GIRAUD-TEULON, _op. cit._, 340, 341; MCLENNAN,
_op. cit._, 71-119; MAINE, _Ancient Law_, 118;
_Early Law and Custom_, 232-82. But it is not primitive.
KOVALEVSKY, _Mod. Customs and Anc. Laws of Russia_,
chaps. i, ii, finds many survivals, as he believes, of an earlier
maternal system of kinship and succession.
[82] The question for the Germans will be again referred to; see
chap. vi, below.
[83] GAIUS, I, 55, Poste, 61.
[84] Such is the view of MCLENNAN, _Patriarchal Theory_,
136-40, 181 ff., 205 ff., 214, 260-62, where Maine's theory of
agnation is criticised.
[85] "The last vestiges of the two disappeared from the law
together. But, in fact, agnation went first. The paternal powers
were susceptible of abridgment and restriction in various ways
short of extinction. The wife might become free from them;
the children also; and yet they might remain for the slaves.
And it was thus gradually that they perished. But agnation is
perfect, or it ceases to be agnation. And the moment the ties
of blood through women received civil effects agnation was no
more."--_Patriarchal Theory_, 182. On the decay of agnation and
_patria potestas_ see SOHM, _Institutes_, 357, 358,
389-93, 438-47; PUCHTA, _Institutionen_, II, 18, 384
ff., 431 ff., 457 ff.; MUIRHEAD, _Introduction to the
Private Law of Rome_, 422 ff., 343-49; MAINE, _Ancient
Law_, chap. v; MOREY, _Roman Law_, 78, 129, 150, 240-43,
248.
Furthermore, in addition to the historical difficulty, there is
another strong reason for doubting the dependence of agnation
upon _patria potestas_: the inconsistency of the latter in its
effects upon kinship. If the descendants of married women are
excluded from relationship, solely on the ground that they belong
to another _potestas_, why, for the same reason, should not the
children of men, say of brothers _sui juris_,[86] be likewise
mutually excluded? Plainly some more satisfactory explanation of
this remarkable discrimination between the sexes must exist. Such
an explanation McLennan finds in exogamy, or the custom which
forbids marriage between persons of the same group of acknowledged
kindred.[87] It seems probable that in early times the patrician
family was coextensive with the _gens_. _Agnatio_ and _gentilitas_
were equivalent expressions.[88] During the historical period, at
any rate, _gentilitas_ is traced through the male line; and it is
not impossible that originally inter-marriage was forbidden between
those bearing the same gentile name.[89] In that case, agnation
appears as the natural result of the gentile rule of exogamy,
retained, after the weakening of the _gens_, for the regulation of
succession within the family. Exogamy, however, does not necessarily
imply the _patria potestas_, but is found more frequently perhaps
with the maternal than with the paternal system of kinship.[90]
In fact, for the Romans and kindred Italic tribes, considerable
evidence has been collected by various writers pointing, as they
believe, to an early transition from the maternal to the cognatic
or the agnatic system.[91] While this conclusion may be rejected,
it must nevertheless be admitted that criticism of the patriarchal
theory has been very successful in its general results. It appears
to have established beyond question the complex and highly
artificial character of the Roman family.[92] So far from being
the type of early social organization, it is seen to be relatively
modern and ill fitted to the condition of primitive men.
[86] MCLENNAN, _Patriarchal Theory_, 190.
[87] _Ibid._, 194, 195.
[88] _Ibid._, 204-14. _Cf._ MUIRHEAD, _Introduction to
the Private Law of Rome_, 43.
[89] PLUTARCH, _Roman Questions_, VI, tells us that "in
early times the prohibition of marriage extended as far as the
tie of blood; and, if this be received, it involves--since the
gentiles considered themselves to be of the same blood--that
there could not be marriage between persons of the same
gens."--MCLENNAN, _op. cit._, 206, 207.
[90] LEIST, _Graeco-italische Rechtsgeschichte_, 95,
96, also denies (against MARQUARDT, _Privatleben_,
I, 22, 29) that the distinctive feature of the Roman family
is dependent on the patriarchal authority, since the elements
of agnation and paternal power are Aryan. BERNHÖFT,
"Germanische und moderne Rechtsideen im rezipirten röm. Recht,"
_ZVR._, IV, 234, holds that Roman agnation does not depend
upon blood-relationship, but upon power; and this was an Aryan
characteristic; _idem_, _Röm. Königszeit_, 69 ff., 94, 201.
McLennan's hypothesis is plausible, though not strongly supported
by proof. _Cf._ STARCKE, _Primitive Family_, 101;
WAKE, _Marriage and Kinship_, 384, 385.
[91] Such are the isolated facts comprised in the early annals
which seem to imply acknowledged kinship in the female line,
even precedence of the latter; the fact that the status of
slaves, illegitimate children, and the children of concubines
was determined by the condition of the mother; the effects
of marriage by _usus_; the supposed evidences of former
wife-capture and wife-purchase, marking the transition to the
agnatic system; the instances of wife-lending as by the elder
Cato; and especially the plebeian element; for cognation, not
agnation, prevailed among the plebeians, and possibly among
them kinship was at first counted only through the mother;
see DARGUN, _Mutterrecht und Raubehe_, 9-13, 14;
_Mutterrecht und Vaterrecht_, 115; BERNHÖFT, "Zur
Geschichte des europäischen Familienrechts," _ZVR._, VIII,
197-201; "Germanische und moderne Rechtsideen im rezipirten
röm. Recht," _ibid._, IV, 227 ff.; _Staat und Recht der röm.
Königszeit_, 192, 202-7; GIRAUD-TEULON, _Les origines
du mariage_, 408-26; SOHM, _Institutes_, 360, 361,
notes; KARLOWA, _Die Formen der röm. Ehe_, 1 ff.;
MCLENNAN, _Patriarchal Theory_, 194 ff., 205 ff., 259 ff.
[92] "Die Ehe des römischen Civilrechts (justum matrimonium)
war eine formgebundene, durch und durch künstliche
Institution."--DARGUN, _Mutterrecht und Raubehe_, 10.
_Cf._ BERNHÖFT, _Staat und Recht der röm. Königszeit_,
196 ff.
In the meantime, the patriarchal theory has had to reckon with a
totally different view of the genesis and development of social
institutions. To this view let us now turn.
CHAPTER II
THEORY OF THE HORDE AND MOTHER-RIGHT
[BIBLIOGRAPHICAL NOTE II.--A pioneer in the
comparative history of marriage and the family is Unger, _Die
Ehe in ihrer welthistorischen Entwicklung_ (Vienna, 1850), who
notices many of the leading phenomena connected with these
institutions in different parts of the world; but his book
is essentially a _Tendenzschrift_, to prove the elevating
influence of Christianity and Teutonism. The literature of the
Horde and Mother-Right opens, however, with Bachofen's singular
but learned treatise, _Das Mutterrecht: Eine Untersuchung
über die Gynaikokratie der alten Welt nach ihrer religiösen
und rechtlichen Natur_ (Stuttgart, 1861), of which the
original edition is now exceedingly scarce, although there
is an exact reprint (Basel, 1897). This work is supplemented
by Bachofen's _Die Sage von Tanaquil_ (Heidelberg, 1870),
and his _Antiquärische Briefe_ (Strassburg, 1886). Upon the
_Mutterrecht_ was based Giraud-Teulon's _La mère chez certains
peuples de l'antiquité_ (Paris and Leipzig, 1867); followed by
_Les origines de la famille_ (Geneva, 1874), and _Les origines
du mariage et de la famille_ (Geneva and Paris, 1884), in both
of which Bachofen's principal conclusions are supported with
much new material. A thoroughgoing disciple of the same school
is Lippert, _Die Geschichte der Familie_ (Stuttgart, 1884);
and _Kulturgeschichte der Menschheit_ (Stuttgart, 1886-87).
Very important also in this connection are the _Mutterrecht und
Raubehe_ of Dargun (Breslau, 1883), and his later treatise,
_Mutterrecht und Vaterrecht_ (Leipzig, 1892), a very able
defense of the theory of mother-right for the Aryan peoples
after the separation, though conceding that the maternal system
was not developed in the primitive stage.
A scholar, who in the main belongs to the same group and who
is one of the foremost students of the laws and usages of
savage and barbarous peoples, is Post, whose more important
writings are _Die Geschlechtsgenossenschaft der Urzeit_
(Oldenburg, 1875); _Der Ursprung des Rechts_ (Oldenburg, 1876);
_Die Anfänge des Staats- und Rechtsleben_ (Oldenburg, 1878);
_Die Grundlagen des Rechts_ (Oldenburg, 1884); _Einleitung
in das Studium der ethnologischen Jurisprudenz_ (Oldenburg,
1886); _Afrikanische Jurisprudenz_ (Oldenburg and Leipzig,
1887); _Studien zur Entwicklungsgeschichte des Familienrechts_
(Oldenburg and Leipzig, 1889); and "Die Kodifikation des
Rechts der Amaxosa von 1891," in _ZVR._, XI. The last-named
paper may be read in connection with Rehme's "Ueber das Recht
der Amaxosa," in _ZVR._, X; Kohler's "Ueber das Negerrecht,
namentlich in Kamerun," _ibid._, XI; Bertholon, "Les formes de
la famille," in _Arch. de l'anth. crim._, VIII (1893); Zöller,
_Forschungsreisen in der Kolonie Kamerun_ (Berlin and Stuttgart,
1886); the _Kamerun_ of Buchner (Leipzig, 1887); Munzinger's
_Ostafrikanische Studien_ (Schaffhausen, 1864); the important
work of Fritsch, _Die Eingeborenen Süd-Afrikas_ (Breslau, 1872),
treating of the family customs of various aboriginal tribes;
Kranz, _Natur- und Kulturleben der Zulus_ (Wiesbaden, 1880);
Kingsley, _Travels in West Africa_ (London, 1897); Tillinghast,
_The Negro in Africa and America_ (New York, 1902).
By entirely different routes the theories of universal communism
and mother-right were reached by Lewis H. Morgan, beginning
with the _League of the Iroquois_ (Rochester, 1851); followed
by his great work on _Systems of Consanguinity and Affinity_
(Washington, 1871); the systematic treatise entitled _Ancient
Society_ (New York, 1878); and the _Houses and House-Life of the
American Aborigines_ (Washington, 1881); and by J. F. McLennan,
_Primitive Marriage_ (1865); reprinted with other papers as
_Studies in Ancient History_ (London, 1876). After the author's
death appeared the _Patriarchal Theory_ (London, 1885), edited
and completed by his brother Donald McLennan; and the second
series of _Studies_ (London and New York, 1896), edited by his
widow and Arthur Platt.
Sir John Lubbock, _Origin of Civilization_ (New York, 1889),
maintains the theory and introduces the name of "communal
marriage." McLennan is in the main supported by Robertson Smith,
_Kinship and Marriage in Early Arabia_ (Cambridge, 1885). This
book may be read in connection with Wilken, _Das Matriarchat bei
den alten Arabern_ (Leipzig, 1884); Kohler, "Vorislamitisches
Recht der Araber," in _ZVR._, VIII; Friedrichs, "Das Eherecht
des Islams," _ibid._, VII; Vincenti, _Die Ehe im Islam_ (Vienna,
1876); Pischon, _Der Einfluss des Islams auf das häusliche,
soziale, und politische Leben seiner Bekenner_ (Leipzig,
1881); Perron, _Femme arabe_ (Paris and Alger, 1858); Kremer,
_Kulturgeschichte des Orients unter den Kalifen_ (Vienna, 1875);
Vámbéry, _Der Islam im neunzehnten Jahrhundert_ (Leipzig, 1875);
his _Türkenvolk_ (Leipzig, 1885); Hanoteau and Letourneux, _La
kabylie et les coutumes kabyles_ (Paris, 1893); and Baway,
"The Marriage Customs of the Moors of Ceylon," in _Journal
of the Royal Asiatic Society_, Ceylon Branch, 1887-88, X,
219-33 (Colombo, 1888). Read also Redhouse, _Notes on Tylor's
'Arabian Matriarchate,'_ propounded by Tylor before the British
Association, Montreal, 1884.
For the matrimonial institutions of the Australian aborigines,
whose so-called "group-marriage" has played so great a part
in speculation, see especially Fison and Howitt, _Kamilaroi
and Kurnai_ (Melbourne, 1880), supplemented by their "Deme
and the Horde," in _Journal of the Anth. Inst._, XIV, 142-68
(London, 1885), comparing Attic and Australian classes and
local divisions; Fison's article on "Primitive Marriage,"
in _Pop. Sci. Monthly_, XVII (New York, 1880); his paper on
"Classificatory Systems of Relationship," in _Brit. Assoc. Adv.
Sci._ (Oxford, 1894); Howitt's "Remarks on the Class Systems
Collected by Mr. Palmer," in _Journal of the Anth. Inst._,
XIII, 335-46 (London, 1884); his "Dieri and Other Kindred
Tribes of Central Australia," _ibid._, XX; "Further Notes on
the Australian Class Systems," _ibid._, XVIII, 31-36 (London,
1889); "Organization of Australian Tribes," in _Trans. Roy.
Soc. of Victoria_, I, Part II (1889); and his "Australian Group
Relations," in _Rep. Smith. Inst._, 1883 (Washington, 1885).
Important also are Cunow, _Die Verwandtschafts-Organisationen
der Australneger_ (Stuttgart, 1894), supplementing Morgan's
_Ancient Society_, while rejecting some of Morgan's and Fison's
conclusions; Kohler, "Das Recht der Australneger," in _ZVR._,
VII; his later _Zur Urgeschichte der Ehe_ below named; McLennan,
_Studies_, II, 278-310; Curr, _The Australian Race_ (Melbourne,
1886), rejecting the theory of "group-marriage" and promiscuity;
especially Roth's _North-West-Central Queensland Aborigines_
(Brisbane and London, 1899); and Spencer and Gillen's very
able and detailed account of the _Native Tribes of Central
Australia_ (New York and London, 1899), both of which works,
like those of Kohler, tend to sustain the general, though not
all the incidental, conclusions of Fison and Howitt. Among the
many papers and books useful for studying the social life of
the Australians are Palmer, "Notes on Some Australian Tribes,"
in _Journal of the Anth. Inst._, XIII (London, 1884); Mathew,
"The Australian Aborigines," in _Journal of the Royal Society
of New South Wales_, XXIII (Sydney, 1889); Mathews, "Australian
Class Systems," in _The Am. Anthropologist_, IX, X (Washington,
1896-97); and his "The Victorian Aborigines," _ibid._, XI
(Washington, 1898). Supplementary materials may likewise be
found in Dawson, _Australian Aborigines_ (Melbourne, Sydney,
and Adelaide, 1881); Jung, _Das Welttheil Australien_ (Leipzig,
1882); Smyth, _Aborigines of Victoria_ (London, 1878); Smith and
Stewart's _The Booandik Tribe_ (1880); Lang, _Social Origins_;
Atkinson, _Primal Law_ (published together, London, New York,
and Bombay, 1903); and especially Crawley, _Mystic Rose_ (London
and New York, 1902).
McLennan was first systematically and luminously criticised
by Spencer, in Part III of his _Principles of Sociology_
(published, in parts, 1874-77; complete, New York, 1879).
McLennan replied in two articles in the _Fortnightly Review_,
XXVII (London, 1877); and in turn Spencer has a "Rejoinder,"
reprinted in his _Various Fragments_ (New York, 1898). Gomme
supplements McLennan's evidences for his "Theory of the
Primitive Horde," in _Journal of Anth. Inst._, XVII (London,
1888); and this article is criticised by Wake, _Primitive
Human Horde_, reprinted from _ibid._, February, 1888. Morgan
is supported by Engels, _Ursprung der Familie_ (Stuttgart,
1892). His researches are appreciatively reviewed and
supplemented by Bernhöft, _Verwandtschaftsnamen und Eheformen
der nord-amerikanischen Volksstämme_ (Rostock, 1888); and
they are criticised by Lubbock, "On the Development of
Relationships," in _Journal of Anth. Inst._, I (London, 1872).
The views of Morgan and McLennan are examined by Wake in his
"Classificatory Systems of Relationship," _ibid._, VIII (London,
1879); and his "Primitive Human Family," _ibid._, IX (London,
1880). See also his "Nature and Origin of Group Marriage,"
_ibid._, XIII (London, 1884); and his _Le mariage communal_
(Paris, 1875), replying to Barbier. An able conservative
writer, vigorously and learnedly attacking the fundamental
conclusions of recent sociological and ethnological science, is
Schneider, _Die Naturvölker: Missverständnisse, Missdeutungen
und Misshandlungen_ (Paderborn and Münster, 1885-86). He is
severely criticised by Hellwald, whose _Menschliche Familie_
(Leipzig, 1889) is one of the most original contributions
to our subject. This was preceded by the same writer's
_Kulturgeschichte_ (3d ed., Augsburg, 1883). Important
monographs are Bobbio, _Sulle origine e sul fondamento della
famiglia_ (Turin, 1891); and the clear summary of Th. Achelis,
_Die Entwicklung der Ehe_ (Berlin, 1893); which may be read in
connection with Dr. A. Achelis's "Geschlechtsgenossenschaft," in
_Zeitschrift der Gesellschaft für Erdkunde_, No. 148 (Berlin,
1890). Of service also in connection with various topics are
Cunow, "Die ökonomischen Grundlagen der Mutterherrschaft," in
_Neue Zeit_, No. 4, XVI. Jahrg., I. Band (Stuttgart, 1897);
Ploss, "Ueber das Heirathsalter der Frauen bei verschiedenen
Völkern," in _Mittheilungen der Ver. für Erdkunde_, 1872
(Leipzig, 1873); Redslob, _Levirats-Ehe bei den Hebräern_
(Leipzig, 1836); Danks, "Marriage Customs of the New Britain
Group," in _Journal of Anth. Inst._, XVIII, No. 3; Roth,
"Significance of the Couvade," _ibid._, XXII (London, 1893);
Peal, "On the 'Morong,' as Possibly a Relic of Pre-Marriage
Communism," _ibid._, XXII; Ellis, "On Polyandry," in _Pop.
Sci. Monthly_, October, 1891; _idem_, _Tschi-Speaking Peoples_
(London, 1887); _idem_, _Ewe-Speaking Peoples_ (London, 1890);
Brouardel, _L'infanticide_ (Paris, 1897); Frazer, _Totemism_
(Edinburgh, 1887); Peet, "Tribal Records in the Effigies," in
_Am. Antiquarian_, XV (Chicago, 1893); Lubbock, "Social and
Religious Condition of the Lower Races of Man," _Rep. Smith.
Inst._, 1869 (Washington, 1872); Stricker, "Untersuchungen über
die kriegerischen Weiber," in _Archiv für Anthropologie_, V;
his _Amazonen in Sage und Geschichte_ (Berlin, 1868); Avery,
"Races of the Indo-Pacific Oceans," in _Am. Antiquarian_, VI
(Chicago, 1884); Greenwood, _The Wild Man at Home_ (London,
n. d.); Peschel, _Races of Man_ (London, 1889); Zmigrodski's
interesting _Die Mutter bei den Völkern des arischen Stammes_
(Munich, 1886); Peet, "Houses and House-Life among the
Pre-Historic Races," in _Am. Antiquarian_, X (Chicago, 1888),
taking the same general view as Morgan; and his "Earliest
Abodes of Men," _ibid._, XV (Chicago, 1893). To bring criticism
down to date read Tillier's able and suggestive book _Le
mariage: sa genèse, son évolution_ (Paris, 1898); Tylor, "The
Matriarchal Family," in _Nineteenth Century_, XL, 81 (July,
1896); Kohler, _Zur Urgeschichte der Ehe_ (Stuttgart, 1897);
Giddings, _Principles of Sociology_ (New York and London, 1896);
and especially the discussions of the matriarchate, the forms
of marriage, and similar topics by Abrikossoff, Westermarck,
Letourneau, Kovalevski, and others in _Annales de l'institut
international_ (Paris, 1896).
A mass of materials relating to every phase of the subject
for many peoples may be found in the large general works of
Klemm, _Cultur-Geschichte der Menschheit_ (Leipzig, 1843-52);
Waitz-Gerland, _Anthropologie der Naturvölker_ (Leipzig,
1860-72; 2d ed., begun 1877); Featherman, _Social History of
the Races of Mankind_ (London, 1881-91); and Ratzel, _History
of Mankind_ (London and New York, 1896-98). General summaries
are given by Adams, "Primitive Rights of Women," in _Historical
Essays_ (New York, 1891); McGee, "The Beginnings of Marriage,"
in _Am. Anthropologist_, IX (Washington, 1896); Solotaroff,
"Origin of the Family," _ibid._, XI (Washington, 1898);
Nadaillac, _L'évolution du mariage_ (Paris, 1893); Brinton,
"Religions of Primitive Peoples," in his _American Lectures_,
2d series (New York and London, 1897); Devas, _Studies in
Family Life_ (London and New York, 1886); Lang, "Early History
of the Family," in his _Custom and Myth_ (London, 1884); Miln,
_Wooings and Weddings_ (Chicago, 1900); and Hutchinson's
popular _Marriage Customs in Many Lands_ (London, 1897). An
earlier book, inferior though similar in scope to the one last
named, is Hamilton's _Marriage Rites, Customs, and Ceremonies_
(London, 1822). Of little value, except as marking the beginning
of attempts to write general histories, are Moore, _Marriage
Customs_ (London, 1814; 2d ed., 1820); Laumier, _Cérémonies
nuptiales_ (Paris, 1829); the anonymous _Hochzeitsgebräuche
aller Nationen_ (Swabach, 1783); and Hurtaut's _Coup d'œil
anglois sur les cérémonies du mariage_ (Geneva, 1750), compiled
from Louis de Gaya's _Cérémonies nuptiales_ (original ed.,
Paris, 1680). The subject is also treated by Schroeder, _Das
Recht in der geschlechtlichen Ordnung_ (Berlin, 1893); Gage,
_Woman, Church, and State_ (Chicago, 1893); and Mason, _Woman's
Share in Primitive Culture_ (New York, 1894). Mucke, _Horde und
Familie_ (Stuttgart, 1895), traces the classificatory systems
of kinship to original "space-relationships" in the horde
camping-place, and the work is a remarkable example of ingenious
though fantastic speculation on a large scale.
For the matrimonial customs of low races, especially valuable
are Krause, _Die Tlinkit-Indianer_ (Jena, 1885); Marshall,
_A Phrenologist amongst the Todas_ (London, 1873); and the
magnificent volumes of Paul and Fritz Sarasin, _Die Weddas von
Ceylon_ (Wiesbaden, 1892-93). For examples of sexual practices,
commonly regarded as survivals of original promiscuity, see
Buch, _Die Wotjäken_ (Helsingfors, 1882); Kohler, "Studien über
Frauengemeinschaft," in _ZVR._, V; Bastian, _Rechtsverhältnisse_
(Berlin, 1872); his "Eheverhältnisse," in _ZFE._, VI; and his
"Matriarchat und Patriarchat," _ibid._, _Verhandlungen_ (Berlin,
1886); Ploss, _Das Weib_ (Leipzig, 1895); his _Das Kind_
(Leipzig, 1884); and Mantegazza's _Geschlechtsverhältnisse des
Menschen_, constituting with the earlier _Physiologie der Liebe_
and _Hygiene der Liebe_ his so-called "trilogy of love." For
the bearings of phallicism on the subject read Howard's _Sex
Worship_ (2d ed., Washington, 1898), containing a bibliography.
In this connection are also of service the works on "seignorial
right," the most elaborate monograph being Schmidt's _Jus primae
noctis_ (Freiburg, 1881), containing a full bibliography. See
also his _Slavische Geschichtsquellen zur Streitfrage über das
Jus Primae Noctis_ (Posen, 1886); his paper in _ZFE._, XVI; and
Kohler's criticism, _ZVR._, IV, V. Against its existence as a
right of the mediæval lord are Veuillot, _Droit du seigneur_
(1st ed., Paris, 1854; 3d ed., 1878); Raepsaet, _Recherches_
(Gand, 1817); Barthélemy, "Droit du seigneur," in _Revue des
questions historiques_, I (Paris, 1866), a critical paper
of value; and Labessade, _Droit du seigneur et la rosière
de Salency_ (Paris, 1878). In his _Réponse_ (Paris, 1857)
Delpit makes a vigorous and detailed reply to the arguments of
Veuillot (early edition). See also Foras, _Droit du seigneur_
(Chambéry, 1886); and, for comparison, read "Bibliophile's"
_Les nuits d'épreuve des villageoises allemandes avant le
mariage_ (Brussels, 1877); Grupen's quaint _De uxore theotisca_
(Göttingen, 1748); and Fischer's remarkably valuable and
interesting _Probenächte der teutschen Bauernmädchen_ (Berlin
and Leipzig, 1780; reprinted, Leipzig, 1898).
To "break ground" for the study of the subject it may be well
in the outset to read chaps. iii and iv of Posada's _Théories
modernes_; Kautsky's "Entstehung der Ehe und Familie," in
_Kosmos_, XII; Friedrichs, "Ursprung des Matriarchats," in
_ZVR._, VIII, in connection with his "Zur Matriarchatsfrage," in
_ZFE._, XX; and especially his "Familienstufen und Eheformen,"
in _ZVR._, X. The literature and the theories are also reviewed
by Bernhöft, "Zur Gesch. des eur. Familienrechts," _ibid._,
VIII; and Schurman gives an interesting summary and criticism in
_Ethical Import of Darwinism_ (New York, 1888).
For the works of Wake, Letourneau, Starcke, Westermarck, and
other antagonists of the horde theory, see BIBLIOGRAPHICAL
NOTE III.]
I. BACHOFEN AND HIS DISCIPLES
In the same year with the _Ancient Law_ appeared a book which
was destined to have an extraordinary influence in giving a new
direction to speculation and research. This was the _Mutterrecht_ of
the Swiss scholar Johann Jacob Bachofen, whose memory is revered by
many followers.[93] The author shows a wide and minute acquaintance
with classic literature and the early myths; but his work is
fantastic and almost wholly devoid of scientific method.[94] The
material is drawn mainly from two sources: the fragmentary notices
of the rules of kinship and the matrimonial customs of various
peoples handed down from ancient writers, supplemented slightly
through similar accounts by modern travelers; and an interpretation
of the supposed symbolism of religious myths, particularly those of
the Greeks.[95] The inferences derived from this second source are
often far-fetched and fanciful in the extreme. Though the general
results of the investigation are summarized in a short introduction,
the argument is so loose, the arrangement so confusing, and the
style so obscure that it is with the utmost difficulty the author's
meaning can be gathered. Nevertheless it is undeniable that he has
created the terminology and developed the essential elements of the
communistic and gynocratic theories even in their leading details.
[93] See, for example, LIPPERT, _Geschichte der
Familie_, 4, 5; KOHLER, in _ZVR._, IV, 266 ff.,
who regards Bachofen as the "Altmeister der ethnologischen
Jurisprudenz;" and GIRAUD-TEULON, _Mariage et la
famille_, 146 ff., _passim_. _Cf._ KAUTSKY, in _Kosmos_,
XII, 348.
[94] DELBRÜCK, "Das Mutterrecht bei den Indogermanen,"
in _Preussische Jahrbücher_, XCVII, 15, characterizes the
work as "fantastic," though resting upon "einer äusserst
ausgebreiteten Gelehrsamkeit." DR. STARCKE'S criticism
is too severe: "We should rather call his 'Mutterrecht' the
rhapsody of a well-informed poet than the work of a calm and
clear-sighted man of science."--_Primitive Family_, 243. For
the best analysis of Bachofen, see _ibid._, 241-51. _Cf._ also
BERNHÖFT, "Zur Geschichte des eur. Familienrechts," in
_ZVR._, VIII, 4, 5; LUBBOCK, _Origin of Civilization_,
98 ff.; MCLENNAN, _Studies in Ancient History_, I,
319-25; GIRAUD-TEULON, _La mère chez certains peuples
de l'antiquité_, 6 ff.; ZMIGRODSKI, _Die Mutter_, 178
ff., 196 ff., 311 ff., _passim_; SCHMIDT, _Jus primae
noctis_, 31, 36-38, 178, 190; WAKE, _Marriage and
Kinship_, 14 ff., 257, 258; KAUTSKY, "Die Entstehung der
Ehe und Familie," _Kosmos_, XII, 256, 257, 348; ACHELIS,
_Die Entwicklung der Ehe_, 6 ff.; POSADA, _Théories
modernes_, 47 ff., 148; CHAMBERLAIN, _The Child and
Childhood in Folk-Thought_, 12 ff.
[95] The author first discusses the account given by Herodotus
and others of Lycian customs, which account, he declares,
contains the clearest and most valuable evidence of the
existence and character of _Mutterrecht_ (v). Then follows a
similar treatment of the evidence derived from Crete, Athens,
Lemnos, Egypt, India and central Asia, Orchomenos and the Minyœ,
Epizephyrian Locris, Elis, Lesbos, Mantinea, the Cantabrians, and
from the Pythagorean system.
According to Bachofen, there are three general phases in the
evolution of human sexual relations. The first is the period of
aphrodistic hetairism, in which men and women have each other in
common; the second is the period of demetrian mother-right or
gynocracy, in which kinship and succession are in the maternal line
and woman gains religious and political supremacy; and the third,
the period of the patriarchate or apollonistic father-right, in
which the more spiritual principle of paternity is triumphant.[96]
Each of these periods is regarded as a universal culture-stage.[97]
[96] _Das Mutterrecht_, vi, xviii-xix, xxi, _passim_.
[97] _Ibid._, vi. "Wie auf die Periode des Mutterrechts die
Herrschaft der Paternität folgt, so geht jener eine Zeit
des regellosen Hetärismus voran."--_Ibid._, xviii. For many
illustrations, see the Index at "Aphrodite," "Demeter," and
"Apollo," the names of the divinities presiding respectively over
the three phases.
In the first phase, or that of the unregulated communism, material
motherhood is the essential fact. Fatherhood is necessarily
uncertain. There is no conception of kinship between father and
child. Woman, it is assumed, is exposed to the lust or sexual
tyranny of man; and it is through her successful revolt against the
bondage of unbridled hetairism that she attains the second stage
of progress.[98] The period of demetrian gynocracy is therefore
represented as a turning-point, a transitional phase, through which
humanity passes from its lowest to its highest status. With it the
rudiments of marriage appear, but combined with hetairism surviving
in various forms or gradations. It is the woman and not the man who
obeys the marriage law.[99] Indeed, strict marriage, the exclusive
appropriation of a woman by one man, is looked upon as an abridgment
of a natural or religious right for which expiation must be rendered
to the goddess whose law is violated;[100] and only thus, as a
penalty or composition for the privilege of restricted intercourse,
can be rationally explained those lascivious customs, such as
temporary prostitution, so often found in connection with legal
marriage.[101]
[98] "Es kann nicht verkannt werden: die Gynaikokratie hat
sich überall in bewusstem und fortgesetztem Widerstande der
Frau, gegen den sie erniedrigenden Hetärismus hervorgebildet,
befestigt, erhalten."--_Ibid._, xix; _cf._ xviii, 17-18.
[99] _Ibid._, 18, _passim_. _Cf._ STARCKE, 245.
[100] "Das demetrische Prinzip erscheint als die Beeinträchtigung
eines entgegengesetzten ursprünglichern, die Ehe selbst als
Verletzung eines Religionsgebots.... Nur aus ihm erläutert sich
der Gedanke, dass die Ehe eine Sühne jener Gottheit verlangt,
deren Gesetz sie durch Ausschliesslichkeit verletzt. Nicht um in
den Armen eines Einzelnen zu verwelken, wird das Weib von der
Natur mit allen Reizen, über welche sie gebietet, ausgestattet;
das Gesetz des Stoffes verwirft alle Beschränkung, hasst alle
Fesseln, und betrachtet jede Ausschliesslichkeit als Versündung
an ihrer Göttlichkeit."--_Das Mutterrecht_, xix. In general, on
the antagonism of Aphrodite to marriage, see _ibid._, 13, 71,
134, 137, 310, 320, 325.
[101] "Die Prostitution wird selbst eine Bürgschaft der ehelichen
Keuschheit, deren Heilighaltung eine vorausgegangene Erfüllung
des natürlichen Berufes von Seite der Frau erfordert."--_Ibid._,
xix.
A difficulty, however, presents itself. The theory of Bachofen
assumes, as a general fact in social evolution, that a period of
promiscuity and oppression of the female sex is followed, not merely
by an age of mother-right, involving as a necessary consequence of
the continued uncertainty of fatherhood the recognition of kinship
only in the maternal line; but by an age of gynocracy, involving the
social leadership of women and eventually the political and even the
military subordination of men. Woman emancipates herself and then
she becomes an Amazon. "Weary of the lust of man, she first feels a
longing for a securer position and a purer existence. The feeling of
shame and the rage of despair inflame her to armed resistance."[102]
As "a rival to man, the Amazon became hostile to him, and began
to withdraw from marriage and from motherhood. This set limits to
the rule of women, and provoked the punishment of heaven and men.
Thus Jason put an end to the rule of the Amazons in Lemnos; thus
Dionysos and Bellerophon strove together, passionately, yet without
obtaining any decisive victory, until Apollo with calm superiority
finally became the conqueror;"[103] and so the purer principle of
fatherhood prevailed and the era of father-right appeared. But, says
Bachofen, that woman should gain supremacy over man arouses our
astonishment, because the fact is contrary to what we should expect
from their relative physical powers. "The law of nature delivers
the scepter of power to the stronger." The paradox, however, is
easily explained. "At all times woman has exerted the most powerful
influence upon man, upon the culture and morals (_Gesellung_) of
peoples," through the direction of her mind toward the supernatural,
the wonderful, and the divine. Through her possession of the
mysteries of religion she deprived man of the superior position
which nature had given him. "Religion is the only efficient lever
of all civilization. Each elevation and depression of human
life has its origin in a movement which begins in this supreme
department."[104] "Just as the child receives its first discipline
from the mother, so do peoples receive it from woman. The man must
serve before he can attain supremacy. To the wife alone it is given
to tame the unbridled power of man and to guide him in the path of
well-doing."[105] But amazonism was a shock to the religious feeling
in the stage of mother-right, just as gross hetairism was an offense
in the former period. Hence arose a striving for the realization
of a higher conception of social relations. "It was the assertion
of fatherhood which delivered the mind from natural appearances,
and when this was successfully achieved, human existence was raised
above the laws of material life. The principle of motherhood is
common to all the species of animal life, but man goes beyond this
tie in giving the pre-eminence to the power of procreation, and
thus becomes conscious of his higher vocation.... In the paternal
and spiritual principle he breaks through the bonds of tellurism
and looks upward to the higher regions of the cosmos. Victorious
fatherhood thus becomes as distinctly connected with the heavenly
light as prolific motherhood is with the teeming earth."[106]
"All the stages of sexual life, from aphrodistic hetairism to the
apollonistic purity of fatherhood, have their corresponding type
in the stages of natural life, from the wild vegetation of the
morass, the prototype of conjugal motherhood, to the harmonic law
of the Uranian world, to the heavenly light which, as the _flamma
non urens_, corresponds to the eternal youth of fatherhood. The
connection is so completely in accordance with law, that the form
taken by the sexual relations of life may be inferred from the
predominance of one or the other of these universal substances in
worship."[107]
[102] _Ibid._, xxiv.
[103] STARCKE, _Primitive Family_, 246. On the Amazon
myth see BACHOFEN, _Das Mutterrecht_, xxiv ff., 85.
For many examples of amazonism noticed in the work see Index at
"Amazonen;" and compare GIRAUD-TEULON, _Mariage et la
famille_, 302-28, who accepts the view of Bachofen and gives an
elaborate discussion. According to KOVALEVSKY, _Mod.
Customs and Ancient Laws of Russia_, 16 ff., there are evidences
of amazonism found among the Slavs. Compare STRICKER,
"Untersuchungen über die kriegerischen Weiber," _Archiv für
Anthropologie_, V; and his _Amazonen in Sage und Geschichte_.
[104] _Das Mutterrecht_, xiii, xiv. See STARCKE'S fine
translation of these passages, _op. cit._, 243-45.
[105] _Das Mutterrecht_, 19; _cf._ STARCKE, 245.
[106] STARCKE'S summary, _op. cit._, 244;
BACHOFEN, xxvii.
[107] STARCKE'S summary, _op. cit._, 244, 245;
BACHOFEN, xxix.
The theories of Bachofen have given rise to luxurious speculation.
With slight modification his conclusions have been accepted by a
host of faithful disciples. By others they have been criticised or
abandoned. Various schemes have been constructed in the attempt to
explain the sequence in which the forms of marriage and the phases
of the family have historically appeared. With the literature of
this speculation, so far as primitive communism is assumed, the
present chapter is concerned. As a rule, only the incidental or
negative results of criticism will be noticed, leaving for the
following two chapters the criticism originating in a wholly
different view of social evolution.
It is convenient in the outset to note the importance of carefully
distinguishing between the conception of mother-right, implying
kinship in the female line, and that of gynocracy, denoting the
supremacy of the female sex.[108] Bachofen, as already seen,
uses _Mutterrecht_ as comprehending gynocracy; while some of his
followers likewise speak confidently of a time when women took
social precedence of men, or even held them in political subjection.
Such is the view of Giraud-Teulon, who, with Bachofen, interprets
the Amazon myth as implying an age in which women exercised a
decided social and political domination.[109] Lippert and Unger take
a similar position.[110] On the other hand, it is maintained by a
number of writers, who reject the idea of a political or military
gynocracy, that the inheritance of name and family rights through
the mother usually gives woman a decided precedence in the sphere
of social life and private law. This is the opinion of Kautsky,
who declares that mother-right involves the headship of woman in
the family.[111] Peschel,[112] Tylor,[113] Letourneau,[114] and
Hellwald[115] hold a similar view; and with them Grosse,[116]
Kohler,[117] and Friedrichs,[118] though more reserved, appear in
the main to coincide. Dargun likewise rejects the idea of woman's
political supremacy, while holding that mother-right sometimes grows
into a real matriarchate so far as private law is concerned.[119]
The weight of evidence, however, shows that even this modified view
exaggerates the advantages gained by woman under mother-right. It
may be admitted that here and there--as for instance among the
Sioux, the Wyandots, and some other American peoples[120]--the
determination of the child's social and legal rights through the
mother has somewhat ameliorated the condition of woman. Yet often,
as Dargun[121] has so well shown, the same custom has not enabled
her to escape social degradation or marital bondage.[122] She is
rather the medium through which rights are conveyed and relations
established. "Thus, for instance, among the Australians, with whom
the clan of the children is, as a rule, determined by that of the
mother, the husband is, to quote Mr. Curr, almost an autocrat in
his family, and the children always belong to his tribe."[123] Dr.
Starcke reaches a similar conclusion. Referring to the "important
place" taken by the wife among various African peoples, he declares
that all which "has been said only shows that women in some
instances enjoy privileges which are always enjoyed by men."[124] In
short, if among many peoples at some stage of progress research has
clearly demonstrated the existence of mother-right, it has just as
clearly shown that the notion of a gynocracy, of a period of female
supremacy, is without historical foundation.
[108] FRIEDRICHS, "Familienstufen und Eheformen,"
_ZVR._, X, 190, 191, rejects the use of _Mutterrecht_ as being
practically of "no significance," preferring _Matriarchat_
(from ἄρχειν = "to lead") to denote the uterine system of
relationship; and _Gynaikokratie_, "gynocracy" (from κρατεĩν =
"to rule") to express the idea of the domination of women over
men. "Gynocracy" is used to express this idea by the Jesuit
LAFITAU (_Mœurs des sauvages_, 1724), borrowed from
STRABO (_Geogr._, lib. iii); PESCHEL, _Races of
Man_, 234; PLOSS, _Das Kind_, II, 393. MUCKE,
_Horde und Familie_, 108 ff., 114 ff., 174 ff., _passim_,
rejects the use of _Mutterrecht_ and _Vaterrecht_, and adopts
the terms "gynocratic" and "androcratic" family; but these
designations had already been employed by other writers, _e. g._,
by PLOSS, _op. cit._, II, 393-96. "Metrocracy" also
appears: WESTERMARCK, _Human Marriage_, 98.
But Dargun's use of _Mutterrecht_ and _Vaterrecht_ to express
maternal or paternal kinship, and _Matriarchat_ and _Patriarchat_
to express maternal or paternal power, seems preferable, in
order to avoid confusing the two conceptions; see above,
chap. i, p. 21. Compare further GROSSE, _Die Formen
der Familie_, 11, who uses _Mutterfolge_ and _Vaterfolge_
respectively as opposed to _Matriarchat_ and _Patriarchat_; also
HELLWALD, _Die mensch. Familie_, 122-24, who gives
definitions of "marriage" and "family;" and WESTERMARCK,
"Le matriarcat," _Annales_, 115 ff., who shows that in practice
writers have used "matriarchate" in three senses.
[109] _Les origines du mariage_, 302-28.
[110] LIPPERT, _Geschichte der Familie_, 17;
UNGER, _Die Ehe_, 9. See also GUMPLOWICZ,
_Grundriss der Sociologie_, Abschnitt III, who holds that
a period of gynocracy preceded the androcratic stage;
BARAZETTI, in _ZVR._, IX, 304-7. See also GAGE,
_Woman, Church, and State_, 13 ff.
[111] KAUTSKY, "Die Entstehung der Ehe und Familie,"
_Kosmos_, XII, 343, 344.
[112] PESCHEL, _Races of Man_, 233, 234.
[113] TYLOR, _Method of Investigating Institutions_, 252.
[114] LETOURNEAU, in _Annales de l'institut
international_, 155: "Le mot [matriarcat] doit disparaître,
parceque la chose n'a jamais existé."
[115] HELLWALD, _Die mensch. Familie_, 213 ff. But this
author (112 ff., 116) shows that among primitive men the sexes
were not fully differentiated; so that women often possessed
"amazonian" characteristics.
[116] GROSSE, _Die Formen der Familie_, 48, 161 ff., 176
ff., 183. According to Grosse, among the lowest existing races
patriarchalism prevails. Examples of women exercising political
authority in the clan (_Sippe_) are exceedingly rare, although
such may be found occasionally, as among the Huron and Iroquois,
and some other peoples.
[117] KOHLER, "Die Ehe mit und ohne Mundium," _ZVR._,
VI, 328, 329. _Cf._ POWELL, "Wyandot Government," _I.
Rep. of Bureau of Eth._, 59-69.
[118] FRIEDRICHS, "Ueber den Ursprung des Matriarchats,"
_ZVR._, VIII, 381, 382, though he shows elsewhere that paternal
authority may coexist with mother-right: "Familienstufen und
Eheformen," _ibid._, X, 206. _Cf._ MUCKE, _Horde und
Familie_, 108 ff., 114 ff., _passim_, who maintains that the
family, androcratic or gynocratic, originates in slavery through
rape or purchase. In the gynocratic family the woman is owner
and mistress of the man, as the man is lord of the woman in the
androcratic family.
[119] DARGUN, _Mutterrecht und Vaterrecht_, 67-85.
[120] For an example see POWELL, _op. cit._, and his
"Wyandotte Society," _A. A. A. S._, XXIX, 675-88.
[121] For his theory see the _Mutterrecht und Vaterrecht_; and
compare chap. i, pp. 20-23, above.
[122] See POST, _Ursprung des Rechts_, 52-56; _Die
Geschlechtsgenossenschaft_, 94, denying the existence of a period
of gynocracy; also SPENCER, _Principles of Sociology_,
I, 748; PLOSS, _Das Kind_, II, 393; WAKE,
_Marriage and Kinship_, 216-19; LETOURNEAU, _L'évolution
du mariage_, 131.
[123] WESTERMARCK, _Human Marriage_, 41; CURR,
_The Australian Race_, I, 60, 62, 69. DARGUN,
_Mutterrecht und Vaterrecht_, 2 ff., insists that _Mutterrecht_
denotes merely exclusive kinship through the mother and
is entirely consistent with paternal authority. _Cf._
MUCKE, 173 ff.
[124] STARCKE, _op. cit._, 65; _cf. ibid._, 229. Fear
of the blood-feud through the wife's relatives, as among the
Amaxosa, may sometimes act as a check upon the power or brutality
of the husband: REHME, "Das Recht der Amaxosa," _ZVR._,
X, 39, 40.
The theory of original communism has been accepted by many
writers,[125] though examples of absolute promiscuity have not been
produced.[126] Its former existence is inferred from certain customs
and institutions which are believed to be its survivals. Even the
promiscuity which is thus assumed is not "perfectly indiscriminate,"
but restricted to the members of the unorganized horde or tribe
occupying a particular locality or roaming about together. Hence,
significantly, it has sometimes been described as communal or group
"marriage."[127] Accordingly the horde[128] or band becomes the unit
or starting-point of social development.
[125] For example, by GIRAUD-TEULON, _Les origines du
mariage_, 70 ff., _passim_; LIPPERT, _Kulturgeschichte
der Menschheit_, II, 7; BERNHÖFT, "Zur Gesch. des
eur. Familienrechts," _ZVR._, VIII, 161 ff.; ENGELS,
_Ursprung der Familie_, 17; KULISCHER, "Die
geschlechtliche Zuchtwahl," _ZFE._, VIII, 140; "Intercommunale
Ehe," _ibid._, X, 193; MORGAN, _Systems of
Consanguinity_, 480, 487 ff.; _Ancient Society_, 418, 500-502,
384 ff.; BASTIAN, _Rechtsverhältnisse_, xviii,
lix; MCLENNAN, _Studies_, I, 92, 95, _passim_;
LUBBOCK, _Origin of Civilization_, 86 ff., 98 ff.;
POST, _Anfänge des Staats- und Rechtsleben_, 19;
_Geschlechtsgenossenschaft_, 16 ff.; _Grundlagen des Rechts_,
182 ff.; _Familienrecht_, 54 ff.; _Ursprung des Rechts_, 46 ff.;
WILKEN, _Das Matriarchat_, 7; GUMPLOWICZ,
_Outlines of Sociology_, 110 ff.; and especially KOHLER,
in _ZVR._, IV, 266, 267; V, 334 ff., and elsewhere throughout his
numerous papers.
[126] Thus GIRAUD-TEULON (_op. cit._, 70), a zealous
advocate of the theory of promiscuity, declares: "Avant
d'accepter une semblable hypothèse, il convient cependant de
reconnaitre que l'on n'a pas encore trouvé de peuplade vivant
actuellement en état de complète promiscuité." But, he adds,
the facts observed among living tribes "sont en tel nombre, en
telle concordance, et confinent de si près à la promiscuité
absolue, que ce n'est pas sortir du champ des _hypothèses
scientifiquement permises_ que de supposer dans l'enfance de
l'humanité un état de pur communisme." On the lack of positive
proof _cf._ also KAUTSKY, "Die Entstehung der Ehe und
Familie," _Kosmos_, XII, 198 ff.; WESTERMARCK, _Human
Marriage_, 41; MORGAN, _Ancient Society_, 500 ff.;
MCLENNAN, _Studies in Ancient History_, I, 85 ff., 93
ff.; SPENCER, _Principles of Sociology_, I, 662, 664;
HELLWALD, _Die mensch. Familie_, 130, 131.
[127] "Communal marriage" is the name introduced by SIR JOHN
LUBBOCK, _Origin of Civilization_, 86, 98, 103, 104-9, whose
theory is criticised by MCLENNAN, _Studies_, I, 329 ff.
"Gruppen- oder Hordenchen" is the term employed by POST,
_Familienrecht_, 57, 58; _Grundlagen des Rechts_, 200, 201;
_Anfänge_, 10 ff. For the so-called Australian group-marriage
see FISON AND HOWITT, _Kamilaroi and Kurnai_, 50 ff.,
99 ff., 159 ff.; the criticism of CURR, _The Australian
Race_, I, 106-42, which should be compared with KOHLER,
"Das Recht der Australneger," _ZVR._, VII, 326 ff., 329 ff.,
337 ff.; his _Zur Geschichte der Ehe_, 64 ff.; CUNOW,
_Australneger_; SPENCER AND GILLEN, _Native Tribes of
Central Australia_; and CRAWLEY, _Mystic Rose_, 475
ff. In general, on group-marriage see KULISCHER, in
_ZFE._, VIII, 140; X, 193; BERNHÖFT, "Altindisches
Familienorganisation," _ibid._, IX, 5 ff.; SCHROEDER,
_Das Recht in der geschlechtlichen Ordnung_, 19 ff.
[128] On the horde see BERNHÖFT, "Zur Gesch. des eur.
Familienrechts," _ZVR._, VIII, 167; WESTERMARCK,
_Human Marriage_, 41, 52; FRIEDRICHS, "Familienstufen
und Eheformen," _ZVR._, X, 194, 197, 198; _idem_, _ibid._,
VIII, 378, 379; KAUTSKY, "Die Entstehung der Ehe und
Familie," _Kosmos_, XII, 193 ff. (the _Stamm_); POST,
_Geschlechtsgenossenschaft_, 4 ff.; _Familienrecht_, 57, 58;
KOHLER, in _ZVR._, VII, 381; MUCKE, _Horde
und Familie_; GROSSE, _Die Formen der Ehe_, 59, 62;
FRERICHS, _Zur Naturgeschichte des Menschen_, 106,
107; HELLWALD, _Die mensch. Familie_, 121 ff., 153;
GUMPLOWICZ, _Outlines of Sociology_, 110 ff.; and the
literature cited below on the Australian class-systems, and on
the works of MORGAN and SPENCER.
Many evidences of the former universality of promiscuity are
brought forward. This evidence--to adopt Westermarck's convenient
analysis--"flows from two sources. First, there are, in the
books of ancient writers and modern travelers, notices of some
savage nations said to live promiscuously; secondly, there are
some remarkable customs which are assumed to be social survivals,
pointing to an earlier stage of civilization when marriage did
not exist."[129] The mass of facts collected to illustrate the
licentiousness of savage and barbarous tribes cannot here be
dwelt upon.[130] It must suffice for the present to note that,
according to recent investigation, every instance of alleged
indiscriminate sexual relations appears to stop far short of
absolute promiscuity.[131] So also several of the more interesting
customs, regarded as direct survivals of communism, require only to
be briefly mentioned. The principal argument, of course, as will
presently appear, is grounded upon the existence of polyandry,
and especially upon the proofs adduced of the wide prevalence of
kinship reckoned through the mother's line. For it is generally
assumed that this system can arise only when paternity is uncertain.
Legalized hetairism or prostitution,[132] practiced under various
forms and restrictions among many peoples, savage, barbarous, and
civilized, is thought to be a proof of original communism.[133]
The same is true of "proof-marriages,"[134] existing among the
Wotjäken, Burmese, the Germans, in Loango, and elsewhere; of
"temporary" marriages,[135] as among the Parthians and American
Indians; and of "wife-lending," examples of which are afforded by
the Spartans, Romans, Hindus, Arabs, Eskimo, Germans, Wotjäken,
and many other peoples.[136] In this connection, likewise, belong
those "scandalous nuptial rites" which Bachofen, Lubbock, and
Giraud-Teulon regard as acts of "expiation" for marriage. According
to this theory, marriage, the individual possession of a woman,
was originally regarded as a violation of communal right, for
which some compensation or expiation must be rendered.[137] The
customs referred to fall for the most part in two general classes.
The first group comprises the lascivious religious rites, the
so-called sacred or temple prostitution, found in connection with
the worship of various deities of love and procreation, such as
the Babylonian Mylitta, the Hellenic Aphrodite, the Italian Venus
and the Carthaginian Moloch.[138] In the second class fall the
revolting nuptial privileges, accorded in many parts of the world to
priest, chieftain, or king, or to the friends of the bridegroom and
sometimes to those of the bride. To these privileges in general the
name of _jus primae noctis_ has been given.[139] A curious example
of this practice among the American aborigines is communicated by
Castañeda.[140]
[129] WESTERMARCK, _op. cit._, 52.
[130] For this class of evidence, see GIRAUD-TEULON,
_Les origines du mariage_, 1 ff.: POST, _Familienrecht_,
57, 58; _Anfänge_, 17 ff.; LUBBOCK, _Origin of
Civilization_, 69 ff., 104 ff.; BERNHÖFT, "Zur
Geschichte des eur. Familienrechts," _ZVR._, VIII, 161 ff.;
MCLENNAN, _Studies_, I, 83 ff.; MORGAN,
_Ancient Society_, 500 ff., _passim_; LIPPERT,
_Geschichte der Familie_, 168-80; PLOSS, _Das Weib_,
I, 331, 360 ff., 370 ff., 383 ff.; KULISCHER,
"Die geschlechtliche Zuchtwahl," _ZFE._, VIII, 140, 141;
FRIEDRICHS, "Ursprung des Matriarchats," _ZVR._,
VIII, 370 ff.; MUCKE, _Horde und Familie_, 65, 138
ff., who deny that these customs are evidences of promiscuity;
as also does SCHMIDT, _Jus primae noctis_, 36 ff.;
KOHLER, "Ueber das Negerrecht, namentlich in Kamerun,"
_ZVR._, XI, 419, 422; "Studien über Frauengemeinschaft," _ibid._,
V, 334 ff.; _Zur Urgeschichte der Ehe_, 14, 64 ff., 146; and
elsewhere in his various monographs; HELLWALD, _Die
mensch. Familie_, 187, 326-29; KOVALEVSKY, _Mod.
Customs and Anc. Laws of Russia_, 6 ff.; SCHNEIDER,
_Die Naturvölker_, I, 267 ff.; II, 413 ff., who, rejecting the
doctrines of evolution and survival, holds to the biblical legend
of the "fall of man."
[131] The result of the recent researches of Spencer, Starcke,
Westermarck, Letourneau, and others will be discussed in the next
chapter.
[132] Read especially the section of BERNHÖFT, "Zur
Geschichte des eur. Familienrechts," 161-221, on "Askese
und Hetärismus," who is criticised by MUCKE,
_Horde und Familie_, 122; GUYOT, _Prostitution_,
12 ff.; MANTEGAZZA, _Geschlechtsverhältnisse des
Menschen_, 366 ff.; and the detailed and learned monograph of
ROSENBAUM, _Geschichte der Lustseuche im Alterthume_
(Halle, 1893). An examination of the whole subject is given by
WESTERMARCK, _Human Marriage_, chap. iv.
[133] In this connection are adduced the cases in which
courtesans have been held in high esteem, sometimes in
higher regard than married women, as in Athens and India:
GIRAUD-TEULON, _Les origines du mariage_, 43-45;
LUBBOCK, _Origin of Civilization_, 132, 133, 537, 538;
POST, _Geschlechtsgenoss._, 31; SCHROEDER,
_Das Recht in der geschlechtlichen Ordnung_, 244 ff.;
BERNHÖFT, "Zur Gesch. des eur. Familienrechts,"
_ZVR._, VIII, 172-74; KOHLER, "Ueber das Negerrecht,"
_ibid._, XI, 419; WESTERMARCK, _op. cit._, 61 ff.,
80, 81, who denies the inference of promiscuity from this
custom and mentions many low tribes among whom chastity is
observed. _Cf._ FRIEDRICHS, in _ZVR._, VIII, 374 ff.;
SCHNEIDER, _Die Naturvölker_, II, 473, 474, who ascribes
the custom to religious impulse--the consecration of virgins to
the cult of Aphrodite.
The custom, found among Egyptians, Tibetans, Wotjäken, American
Indians, and other peoples, permitting girls freely to prostitute
themselves before marriage is similarly put in evidence:
HERODOTUS, II, 121, 124, 125, 126; IV, 176; V, 6;
POST, _Grundlagen_, 187; _Geschlechtsgenoss._, 29-31;
_Familienrecht_, 346; BUCH, _Die Wotjäken_, 45 ff.;
KOHLER, in _ZVR._, V, 335 (Wotjäken); BERNHÖFT,
_op. cit._, 165, 166; GIRAUD-TEULON, _op. cit._, 52,
53; UNGER, _Die Ehe_, 12, 13; HELLWALD, _Die
mensch. Familie_, 220 ff., 343; WAITZ, _Anthropologie_,
II, 112, 113 (Africa); RATZEL, _Hist. of Mankind_, II,
128 (Brazil and ancient Peru); PRATZ, _Hist. de la
Louisiane_, II, 386 (Natches Indians); STEVENSON, in
_XI. Rep. of Bureau of Eth._, 19, 20 (the Sia); TURNER,
_ibid._ XI, 189 (the Innuit).
[134] On the so-called "Probeehen" or "Probenächte," see
BUCH, _Die Wotjäken_, 50, 51, 53, 57; KOHLER,
in _ZVR._, V, 346, 351, 338, 339; POST, _Anfänge_, 21;
DÜRINGSFELD, _Hochzeitsbuch_, 9; SCHMIDT,
_Jus primae noctis_, 40; WEINHOLD, _Deutsche Frauen_,
I, 261 ff.; FRIEDBERG, _Eheschliessung_, 84; and
especially FISCHER, _Ueber die Probenächte der teutschen
Bauernmädchen_, who gives a detailed historical investigation
from the early Middle Ages onward, with interesting examples.
_Cf._ KOVALEVSKY, _Mod. Customs and Anc. Laws of
Russia_, 12, 13 (the _Kirchgang_ or _Dorfgehen_ of Switzerland,
Baden, and Würtemberg).
Among the Todas, after a marriage is arranged, the bride has a
proof-time of a night and a day. On the "expiry of this brief
honeymoon," the damsel is required to make up her mind "either to
accept or reject her suitor."--MARSHALL, _A Phrenologist
amongst the Todas_, 212.
[135] STRABO, II, 515; LUBBOCK, _op. cit._,
131; GIRAUD-TEULON, _op. cit._, 3; POST,
_Geschlechtsgenoss._, 29, 43 ff; _Anfänge_, 21; especially
HELLWALD'S chapter entitled "Zeitehen und wilde
Ehen," _Die mensch. Familie_, 438 ff.; and KULISCHER,
"Communale Zeitehen," _Archiv für Anthropologie_, XI, 228 ff.;
WAITZ, _Anthropologie_, III, 105 (proof and temporary
marriages among American Indians); II, 114 (same in Africa);
KLEMM, _Kulturgeschichte_, II, 78 (N. A. Indians);
TURNER, in XI. _Rep. of Bureau of Eth._, 189 (Innuit);
MCGEE, _The Seri Indians_, in _XVII. Rep. of Bureau of
Eth._, Part I, 280.
[136] PLUTARCH, _Lycurgus_, c. 15 (Sparta);
FRIEDRICHS, "Ursprung des Matriarchats," _ZVR._, VIII,
372, 373; POST, _Anfänge_, 25; _Geschlechtsg._, 34
ff.; NADAILLAC, _L'évolution du mariage_, 17 ff.;
LUBBOCK, _Origin of Civilization_, 131, 132, who
mentions the well-known case of Cato's lending his wife Marcia
to his friend Hortensius; BUCH, _Die Wotjäken_,
48; KOHLER, in _ZVR._, III, 398, note (India), 399
(Germans); V, 336 (Wotjäken), 342 (Alaska), 353 (Creeks);
VII, 326 (Australia); VIII, 84 (Birma); XI, 422 (Kamerun);
JOLLY, in _ZVR._, IV, 331, 332 (Hindus); SMITH,
_Kinship and Marriage_, 116; WAITZ, _Anthropologie_,
II, 114 (Africa); NELSON, "The Eskimo about Bering
Strait," in _XVIII. Rep. of Bureau of Eth._, Part I, 292;
MCGEE, in _XV. Rep. of Bureau of Eth._, 178 (Sioux);
WESTERMARCK, _op. cit._, 74 n. 1, mentions, with the
sources of information, many tribes among whom wife-lending
prevails.
"Exchange of wives" is common among the Eskimo. "For instance,
one man of our acquaintance planned to go to the rivers deer
hunting in the summer of 1882, and borrowed his cousin's wife
for the expedition, as she was a good shot and a good hand at
deer hunting, while his own wife went with his cousin on the
trading expedition to the eastward. On their return the wives
went back to their respective husbands." Sometimes in such cases
the women are better pleased with their new mates and remain with
them. "According to GILDER (_Schwatka's Search_, 197)
it is a usual thing among friends in that region to exchange
wives for a week or two almost every two months." EGEDE
(_Greenland_, 139) says such temporary exchanges take place at
festivals. So also at Repulse Bay, at certain times there is said
to be a "general exchange of wives throughout the village, each
woman passing from man to man till she has been through the hands
of all, and finally returned to her husband."--MURDOCH,
"Point Barrow Expedition," _IX. Rep. of Bureau of Eth._, 413.
_Cf._ TURNER, "Ethnology of Ungava Dist.," _ibid._, 189.
The loaning of wife or daughter to a guest, or the prostitution
of the wife for hire, appears among some South American
tribes: MARTIUS, _Ethnographie_, I, 118; _idem_,
_Rechtszustande_, 65.
[137] LUBBOCK, _Origin of Civilization_, 130-32, 536
ff.; GIRAUD-TEULON, _Les origines du mariage_, 5 ff.,
who says: "Le mariage (en prenant ce mot dans son sense étroit)
apparaît chez les races inférieures comme une infraction aux
droits de la communauté, et partant, comme la violation d'une
loi naturelle: de là, à le considérer comme la violation d'une
loi religieuse, il n'y avait qu'un pas." See the criticism by
MCLENNAN, _Studies_, I, 335 ff., who rejects the theory
of expiation for violation of communal right; because usually
the woman does not belong to the husband's tribe, and because
often the privileges are exercised by friends of both bridegroom
and bride. _Cf._ FISON AND HOWITT, _Kamilaroi and
Kurnai_, 149-56; WAKE, _Marriage and Kinship_, 17, 34,
65, 245 ff.; LIPPERT, _Geschichte der Familie_, 169;
KOHLER, in _ZVR._, VII, 327 (Australia); MUCKE,
_Horde und Familie_, 138-40, who rejects the theory; and
KOVALEVSKY, _Mod. Customs and Anc. Laws of Russia_,
10, 11, who refers to the promiscuous intercourse practiced at
various festivals, resembling the assemblies on the Roumanian
Gainaberg which Kohler has discussed in _ZVR._, VI, 398 ff. These
may be compared with the license practiced at certain gatherings
among the Arunta and several other Australian tribes: SPENCER
AND GILLEN, _Native Tribes of Central Australia_, 96 ff.
[138] "Thus Herodotus states, in Babylonia, every woman
was obliged once in her life to give herself up, in the
temple of Mylitta, to strangers, for the satisfaction of the
goddess; and in some parts of Cyprus, he tells us, the same
custom prevailed. In Armenia, according to Strabo, there
was a very similar law. The daughters of good families were
consecrated to Anaitis, a phallic divinity like Mylitta, giving
themselves, as it appears, to the worship of the goddess
indiscriminately."--WESTERMARCK, _Human Marriage_,
72; HERODOTUS, I, c. 199; STRABO, XI, 532.
As to Babylon Herodotus may have been mistaken; _cf._ chap.
iv, below. See further illustrations in BERNHÖFT,
_op. cit._, 169 ff.; GIRAUD-TEULON, _op. cit._, 7
ff.; PLOSS, _Das Weib_, I, 383 ff.; LIPPERT,
_Geschichte der Familie_, 171; FRIEDRICHS, in _ZVR._,
VIII, 373, who enumerates the peoples where the custom has
existed; _idem_, _ibid._, X, 215, 216; HELLWALD, _Die
mensch. Familie_, 356 ff.; and HOWARD, _Sex Worship_,
103-16, 201, _passim_, who holds that sacred prostitution, and
many of the other sexual practices usually assigned as survivals
of promiscuity, are evidences of phallicism.
[139] The monograph of DR. KARL SCHMIDT, _Jus primae
noctis_, is the most elaborate work on the subject. The author
denies (41 ff., 365 ff., 379) that the custom existed in
feudal Europe or elsewhere as a _right_; and he holds that
the practices so called are not evidences of promiscuity.
His views are sharply criticised by HELLWALD, _Die
mensch. Familie_, 349 n. 4; and especially by KOHLER,
in _ZVR._, IV, 279-87. SCHMIDT has a supplementary
discussion in _ZFE._, XVI, 44 ff.; and is reviewed unfavorably by
KOHLER, _ZVR._, V, 397-406. See also SCHMIDT'S
_Slavische Geschichtsquellen zur Streitfrage über das Jus
Primae Noctis_; KOHLER, _Urgeschichte der Ehe_, 140;
_idem_, in _ZVR._, VII, 350, 351; VIII, 85; SCHNEIDER,
_Die Naturvölker_, II, 471-73; GIRAUD-TEULON, _op.
cit._, 32-41; WEINHOLD, _Die deutschen Frauen_, I,
300, 301; LETOURNEAU, _L'évolution du mariage_,
56-62; SUGGENHEIM, _Geschichte der Aufhebung der
Leibeigenschaft_, 104, who believes the "right of the
lord" existed in France far down into the Middle Ages;
BACHOFEN, _Mutterrecht_, 12, 13, 17, 18, _passim_;
POST, _Anfänge_, 17, 18; _idem_, _Geschlechtsgenoss._,
37; KULISCHER, "Die communale Zeitehe," in _Archiv für
Anthropologie_, XI, 228 ff., who refers to the recent existence
of the alleged custom in Russia; FRIEDRICHS, in _ZVR._,
X, 214, 215; STARCKE, _op. cit._, 124-26. There is a
learned discussion in the quaint _De uxore theotisca_, cap. i,
of GRUPEN; the literature cited in Bibliographical
Note II should be consulted; and Schmidt has appended a very
full bibliography to his book. The term _jus primae noctis_ is
especially applied to the alleged "right of the lord" in feudal
times; but the existence of even this custom as a legal privilege
is still an unsettled question.
[140] The custom is for the men "to buy the women whom they
marry of their fathers and relatives at a high price, and then
to take them to a chief, who is considered to be a priest, to
deflower them and see if she is a virgin; and if she is not,
they have to return the whole price, and he can keep her for
his wife or not, or let her be consecrated, as he chooses."
In the same connection, Castañeda says, "among them are men
dressed like women who marry other men and serve as their wives;"
and he describes also a curious kind of legal or consecrated
prostitution existing among the same people: see the translation
of Castañeda's account in WINSHIP'S "Coronado
Expedition, 1540-2," _XIV. Rep. of Bureau of Eth._, 513, 514.
_Cf._ FAWCETT, "On Basivis: Women, Who, through
Dedication to a Deity, Assume Masculine Privileges," _Jour. Anth.
Soc._ (Bombay), II (1891), 322-54.
The argument for original promiscuity based on the various practices
just mentioned is not conclusive. Most, if not all, of them are
perhaps capable of other and simpler explanations. The wife-lending,
as suggested by Westermarck, may be "due merely to savage ideas of
hospitality;"[141] while the custom of sacred prostitution evidently
belongs "to phallic-worship, and occurred, as Mr. McLennan justly
remarks, among peoples who had advanced far beyond the primitive
state. The farther back we go, the less we find of such customs
in India; 'the germ only of phallic-worship shows itself in the
Vedas, and the gross luxuriance of licentiousness, of which the
cases referred to are examples, is of later growth.'"[142] So
likewise the _jus primae noctis_, instead of being an expiation for
an encroachment on communal right, may be more naturally explained
either as an abuse of power,[143] in some cases as an evidence of
hospitality,[144] or in others as a "common war-right, exercised
whenever, under any circumstances, capture of a woman is made
by a war-party."[145] The toleration of the custom, like that of
wife-lending, may sometimes be due to the "juridical" nature of
fatherhood as conceived by primitive men.[146]
[141] WESTERMARCK, _Human Marriage_, 73, 74;
WAKE, _Marriage and Kinship_, 81, 82. The custom may
possibly be accounted for by the slow growth of the sentiment
upon which "conjugal attachment depends:" MCLENNAN,
_Studies_, I, 341. For an alleged "survival" see
SCHMIDT, _Hochzeiten in Thüringen_, 31. For the strictly
regulated form of wife-lending among certain Australian tribes
see the reference to the work of Spencer and Gillen below.
[142] WESTERMARCK, _op. cit._, 72; MCLENNAN,
_Studies_, I, 341, 342. This is also the view of CLIFFORD
HOWARD in his _Sex Worship_, chaps. v, ix, x.
[143] WESTERMARCK, _op. cit._, 78; SCHMIDT,
_Jus primae noctis_, 41.
[144] WESTERMARCK, _op. cit._, 73.
[145] MCLENNAN, _op. cit._, I, 337;
WESTERMARCK, _op. cit._, 76.
[146] The well-known theory of STARCKE, _op. cit._,
121-27. It is not essential, according to this view, in early
stages of development, that a child should be actually begotten
by the father. It is enough that it should be borne by his
legal wife and be accepted by him. Hence the _jus primae
noctis_, exercised by a priest, king, or other distinguished
person, is sometimes regarded as an honor: _ibid._, 125, 126;
WESTERMARCK, _op. cit._, 79.
On the other hand, the theory that these customs are evidences
of original sexual communism has gained support from the recent
researches of Spencer and Gillen in their very able and detailed
book on the _Native Tribes of Central Australia_. Among these
aborigines, the authors declare, "so far as marital relations ...
are concerned, we find that whilst there is individual marriage,
there are, in actual practice, occasions on which the relations are
of a much wider nature. We have, indeed, in this respect three very
distinct series of relationships." First we find the present "normal
condition of individual marriage with the occasional existence of
marital relations between the individual wife and other men of the
same group as that to which her husband belongs, and the occasional
existence also of still wider marital relations;" secondly "we have
evidence of the existence at a prior time of actual group marriage;"
and in the third place "we have evidence of the existence at a still
earlier time of still wider marital relations."[147]
[147] The first series of relationships is seen in the Arunta
tribe, where "no man will lend his wife to anyone who does not
belong to the particular group with which it is lawful for her to
have marital relations--she is, in fact, only lent to a man whom
she calls _Unwana_, just as she calls her own husband, and though
this may undoubtedly be spoken of as an act of hospitality, it
may with equal justice be regarded as evidence of the very clear
recognition of group relationship, and as evidence also in favor
of the former existence of group marriage." A native, it is true,
will sometimes lend his wife "as an act of hospitality to a white
man; but this has nothing to do with the lending of wives which
has just been dealt with." It "does not imply the infringement
of any custom." The second relationship in the series named is
of a public nature, and it is strictly regulated by custom. It
consists in the defloration of a girl just before her marriage by
certain men who have access to her in a definite order. These men
belong to forbidden groups; that is, groups into which the woman
may not marry. "The ceremonies in question are of the nature
of those which Sir John Lubbock has described as indicative of
expiation for marriage;" and they may be regarded as "rudimentary
customs" pointing back to a stage of wider marital rights than
those which now exist in these tribes. The third relationship is
the license allowed on "occasions when a large number of men and
women are gathered together to perform certain corrobborees,"
the more important gatherings lasting perhaps "ten days or a
fortnight." Every day "two or three women are told off to attend
at the corrobboree ground, and, with the exception of men who
stand in the relation to them of actual father, brother, or son,
they are, for the time being, common property to all the men
present." The explanations of similar usages advanced by McLennan
and Westermarck, such as phallicism, are deemed inapplicable
to these cases: SPENCER AND GILLEN, _Native Tribes of
Central Australia_, 92-111. Compare especially KOHLER,
_Zur Urgeschichte der Ehe_, 64 ff., _passim_, who finds in
the totem groups and classificatory systems of relationship,
existing in Australia, America, and elsewhere, evidence of former
group-marriage.
But these usages are capable of a very different explanation. That
they imply a primitive state of promiscuity is emphatically denied
by Crawley. Like sacred prostitution, the customs of avoidance, the
couvade, and marriage rites in general, according to his theory,
they take their rise in the religious or superstitious ideas upon
which sexual taboo rests.[148]
[148] _Mystic Rose_, 236-66, 294-317, 347 ff., 468-85, _passim_.
_Cf._ LANG, _Social Origins_, 87-111, _passim_.
Adherents of the communistic theory are not entirely at one as to
the phases in the development of marriage and the family. Very
generally the family, regarded from the standpoint of authority
and kinship, is said to pass from the unregulated horde through
the maternal and the paternal to the parental or two-sided
stage.[149] Thus Dargun declares that there is a tendency for
the uterine system of kinship to give place to the paternal, but
never the reverse.[150] Kohler takes the same position.[151]
Lippert regards the history of social culture as beginning with
the natural relation of mother and child, producing in course of
evolution, long before "marriage" arose, the "primitive family"
whose principle is mother-right, and which, in turn, under various
influences, generally yields to the "old family" (_Altfamilie_) in
its origin based, not on relationship, but on patriarchal power
and possession.[152] Bernhöft denies the invariable sequence of
mother-right and father-right;[153] and Kautsky maintains that the
two systems are parallel, not successive, developments from the
hetairism of the primitive horde.[154]
[149] According to FRIEDRICHS, "Familienstufen und
Eheformen," _ZVR._, X, 190 ff., the forms of the family are the
following: (1) "die lose Familie;" (2) "die matriarchale, uterine
Familie;" (3) "die patriarchale, agnatische Familie;" (4) "die
moderne, zweiseitige Familie."
[150] DARGUN, _Mutterrecht und Raubehe_, 12, 13. For
exceptions, however, see his _Mutterrecht und Vaterrecht_, 29
ff., 35, 41, 46.
[151] KOHLER, in _ZVR._, III, 393; IV, 266 ff.
[152] LIPPERT, _Geschichte der Familie_, 4 ff., 218 ff.;
_idem_, _Kulturgeschichte_, I, 76 ff., 90.
[153] BERNHÖFT, "Zur Geschichte des eur.
Familienrechts," _ZVR._, VIII, 401, 402.
[154] KAUTSKY, "Die Entstehung der Ehe und Familie,"
_Kosmos_, XII, 338-48, especially 347; _cf._ MUCKE,
_Horde und Familie_, 172 ff.
Marriage also, like the family, is said to pass through several
distinct phases of development. Thus, with respect to the number
of persons joining in a household, Friedrichs distinguishes four
"forms" of marriage which, with equal propriety, may be called
forms of the family. These are group-marriage, polyandry, polygyny,
and monogamy, the first three forms having several varieties.[155]
But, as will hereafter appear,[156] it would be rash to infer that
these forms necessarily arise in the order named. Again, with
regard to the way in which it originates, marriage presents a
number of successive stages. According to Kohler,[157] these are
marriage by capture, marriage by purchase, religious marriage,
and civil marriage. That wife-capture generally gives place to
wife-purchase, and this in turn to marriage by gift, and then to
the modern contract between the parents, or later between the
parties themselves, is especially insisted upon. Hildebrand,[158]
however, reverses this order. A measure of progress he finds in what
he regards as the three great industrial stages of human culture:
those of the chase, pastoral life, and agriculture. In the first
stage, not communism, but a tendency toward monogamy prevails.
There is little notion of private property; hence covetousness is
not a motive of social action. Marriages are freely formed through
presents given to the parents, or even without them by simple
agreement of the parties. Later, with the rise of private property,
marriage by purchase and marriage by capture come into existence;
though capture is always exceptional and of comparatively little
importance in the history of marriage.
[155] FRIEDRICHS, "Familienstufen und Eheformen,"
_ZVR._, X, 256-58.
[156] See below, chaps. iii, iv.
[157] "Wie die Ehe aus der Ueberwältigung der Frau durch den
Mann hervorging, und wie sie sich von da aus zum Frauenkaufe
gestaltete; wie sie zur religiösen Heilanstalt wurde und wie
sie von da aus zum geläuterten Rechtsinstitute umbildete, indem
die religiöse Feier nicht mehr obligat blieb, ... lehrt uns das
indische Recht klarer, als jedes andere."--"Indisches Ehe- und
Familienrecht," _ZVR._, III, 342, 343.
[158] HILDEBRAND, _Ueber das Problem einer algemeinen
Entwicklungsgeschichte_, 14 ff., 17 ff.; _idem_, _Recht und Sitte
auf den versch_. _Kulturstufen_, 9 ff.
Similar to the view of Hildebrand, in respect to the initial
stage, is the theory of Kautsky.[159] The starting-point is the
horde. In this absolute equality of the sexes prevails; and the
only divisions are the different generations. Neither the maternal
nor the paternal line is recognized, for the children belong
to the group. Not promiscuity, but "hetairism,"[160] or rather
"hetairistic monogamy," exists. Incessant feuds, however, lead to
wife-capture; and wife-capture tends directly to communism, for
the captured woman belongs as a slave to the band. But the rights
of the band may pass to the individual. The free native woman is
"wooed;" the war-captive is "fought-for;" and so she becomes the
slave-wife of the strongest, who may win other wives in the same
way. Marriage by capture thus conquers the original monogamy,
in whose place polygyny appears, either at once, or after a
transition-period of community in women. Moreover, in this process
may be discerned the genesis of modern individual marriage under
the sanction of the law. But the consequences of wife-capture are
not yet exhausted. The presence in the horde of women taken from
several neighboring bands leads at once to the formation of clans
and to the matriarchate; for the connection of children with the
clan is naturally determined by the mother. The development of
private property produces still further results. The individual
may buy his wife. She becomes his chattel; and the offspring also
belong to him. Thus marriage by purchase gains the victory over
wife-capture; and the patriarchate triumphs over mother-right.
This is the order of development in the more war-like hordes. But
wife-capture does not always precede wife-purchase as a general
phase. In the more peaceful and industrious groups wife-capture
does not appear at all. Here hetairistic monogamy runs its natural
course. Partly under the external influence of tribes where
mother-right existed as the result of wife-capture, but mainly under
the powerful influence of private property, the matriarchate arose.
In the earlier stage kinship with the father was disregarded or
unknown. Naturally, therefore, under the new condition, name and
also property were transmitted to the children through the mother,
with whom their physical connection was always manifest. So it
appears that the conception of private property is the basis of
"hetairistic mother-right" as it is of father-right; and hetairistic
mother-right, as distinguished from the mother-right which owes
its origin to wife-capture, implies the precedence of woman in the
family.[161] "Gynocracy and patriarchalism are therefore parallel
branches of the same stem," the original hetairism of the horde: the
one cannot be a further development of the other. Gynocracy, and
with it polyandry, which is its result,[162] is the highest stage
in the evolution of hetairistic mother-right; just as polygyny and
the patriarchal family are the highest stage in the evolution of
father-right or the agnatic system of kinship.[163]
[159] KAUTSKY, "Entstehung der Ehe und Familie,"
_Kosmos_, XII, 190-207, 256-72, 329-48.
[160] KAUTSKY's use of "hetairism" for "defective"
monogamy is apt to become misleading.
[161] KAUTSKY, 339.
[162] According to KAUTSKY, just as polygyny arises
in a _Herrschaftsverhältniss_--the lordship of the man over
the captured or purchased woman--so polyandry originates in an
analogous relation of the woman to the man. Under gynocracy the
woman chooses her husband, hence polyandry; 344-46.
[163] KAUTSKY, 347.
To the theory of Kautsky that of Dargun, already explained, bears
some resemblance in important details. But Dargun rejects Kautsky's
idea of original monogamy; and he does not regard wife-purchase as
the necessary source of the patriarchate, though the rise of the
latter was greatly favored by it; while mother-right is especially
due to the uncertainty of fatherhood.[164]
[164] DARGUN, _Mutterrecht und Vaterrecht_, 60, 61, 127,
43-52.
Hellwald--who in the general development of his subject and in many
essential particulars agrees closely with Lippert[165]--seeks the
elements of human sexual relations in those of the lower animals.
Absolute promiscuity has never existed among men. The hetairism
which prevailed was restricted to the immediate band or horde of
kindred, which was probably never large. Thus in the horde there was
"unregulated polygyny." To the earliest sexual relations[166] of men
neither "marriage" nor "family" may properly be applied; and for
them no suitable name is forthcoming. In the horde the first social
institution evolved was the "mother-group" or rudimentary primitive
family (_Urfamilie_). "Mother and child," as Lippert suggests,
"these were the simplest elements of the oldest organization." For
the "relation of mother and child alone is given by nature."[167]
In the form of the mother-group the family, however imperfectly
constituted, precedes the state in the order of growth; although
it is not until society, the state, has gained permanent form that
from it the historical "family" is developed.[168] Indeed, the
mother-group is "lacking in everything" which distinguishes the
family according to our modern conceptions.[169] The history of the
"primitive family," so far as mother-right is concerned, shows two
stages of evolution. The first stage is that of the mother-group
strictly so called, through which, as Bachofen and Dargun declare,
every race passes and in which all relationship is traced through
the mother's blood.[170] Absolute unity or identity of blood
is the basis of the earliest human conception of relationship.
Generations or stages of seniority alone (_Altersstufen_), not
degrees of kinship, are recognized. Members of the group are of
equal blood, "consanguine."[171] Relationship with the father is as
yet unknown; and there is in the outset no conception of property.
Gradually, however, in the endogamous mother-group a horror of
incest, of inbreeding, arises, thus leading to exogamy, which is
often facilitated by the stealing of women from surrounding groups.
The obtaining of foreign women next produces the clan system.
Private property in land and movables arises, especially among
those peoples which have attained to settled life and a knowledge
of agriculture. In this way the "primitive family" enters upon its
second stage--that of the matriarchate. Here we find for the first
time forms of marriage and the family properly so called, although
rudimentary as compared with the modern institutions. The mother
ceases to be merely the center of the common life; she is now the
social axis around which everything revolves. Mother-right, implying
kinship as well as succession to name and property exclusively in
the maternal line, becomes fully established. The matriarchate,
unlike the simple mother-group, is not a universal phase through
which all mankind has run. In some cases the agnatic system or
father-right may have followed immediately upon the earlier stage
of mother-right. Incident to the matriarchate are the polygynous
and polyandrous forms of the family. With these the institution of
property grew apace; and so we reach the paternal system, whose
triumph is powerfully aided by wife-capture. In this stage, whatever
be the form of social union--whether it be called _gens_, _sippe_,
or joint-family--it rests upon the authority of the father or
patriarchal lord. Following Lippert,[172] the author prefers for
this patriarchal group the name "old family" (_Altfamilie_); and he
finds its most famous examples in Hellas and Rome. Here monogamy
gained the victory; and so, under the influence mainly of Stoicism
and Christianity, the foundations of modern marriage and the
individual family were laid.[173]
[165] For LIPPERT's development of the family see
his _Geschichte der Familie_, and especially his excellent
_Kulturgeschichte_, I, 71-90; II, 1-165, 505-54.
[166] HELLWALD, _Die mensch. Familie_, 121, 122, 126.
"Was Platz griff, war wohl ungeregelte Polygamie, welche aber
ziemlich naturgemäss Polyandrie nach sich zieht, und aus dieser
Vermischung jenen ehelosen Geschlechtsverkehr schuf, für welchen
noch die richtige Benennung fehlt."--_Ibid._, 129.
[167] _Ibid._, 146, 150; LIPPERT, _Kulturgeschichte_, I,
76; _idem_, _Geschichte der Familie_, 20.
[168] HELLWALD, _op. cit._, 150; FRERICHS, _Zur
Naturgeschichte des Menschen_, 103, 104; _cf._ LIPPERT,
_op. cit._, I, 76.
[169] HELLWALD, _op. cit._, 151.
[170] _Ibid._, 151; DARGUN, _Mutterrecht und Raubehe_,
3; BACHOFEN, _Mutterrecht_, as above quoted.
[171] HELLWALD, _op. cit._, 158 ff., accepting
MORGAN'S main conclusions in his _Systems of
Consanguinity_; and opposing SCHNEIDER, _Die
Naturvölker_, II, 474-77.
[172] LIPPERT, _Geschichte der Familie_, 218, 219, who
distinguishes between the "Alt- und Gesamtfamilie" and the modern
"Sonderfamilie."
[173] Of course, only a bare outline of the author's
able treatise is here given. See especially _Die mensch.
Familie_, 176 ff. ("Exogamie und Clanbildung"), 197 ff.
("Entwicklungsbedingungen und Wesen des Matriarchats"), 227 ff.
("Die Bündnissformen im Matriarchat"), 274 ff. ("Der Frauenraub
und seine Folgen"), 347 ff. ("Ausbildung des Patriarchats"), 529
ff. ("Die Altfamilie").
The influence of economic forces on the evolution of matrimonial and
family institutions is especially emphasized by Grosse. Restricting
his examination to the conditions which lie within actual
"historical or ethnological experience," he seeks to demonstrate
that the "various forms of the family correspond to the various
forms of economy (_Wirthschaft_);" that "in its essential features
the character of each particular form of the family may be explained
by the form of economy in which it is rooted." For the sake of
clearer analysis the peoples known to history or ethnology are
arranged, not in three, but in five groups according to the leading
types of industrial life. These are the lower and upper hunters,
the pastoral peoples, and the lower and upper cultivators of the
soil.[174] But, like Kohler, Lippert, and Hellwald,[175] the author
rejects the popular theory adhered to by Hildebrand, that the chase,
herding, and agriculture are three successive stages of progress
through which all the races of mankind have necessarily passed. For,
as a matter of fact, some pastoral peoples, and even some hunters,
like the Eskimo, are more advanced in culture than various peoples
who are chiefly dependent upon agriculture; and some tillers of the
soil, as Hildebrand concedes, may never have passed through the
pastoral stage.[176] On the other hand, Grosse distinguishes two
forms of the family: the individual family (_Sonderfamilie_), or the
community of parents and children living in a lasting and exclusive
marriage relation, and the great-family (_Grossfamilie_), which
comprises, not merely parents and children, but all descendants
with their families, so far as they are not separated from it by
marriage or otherwise. Examples of the "great-family" are afforded
by the Romans and the Chinese; while the "individual family" is
practically the only form known wherever western European culture
prevails. In each form of the family either the maternal or the
paternal succession (_Mutterfolge_ or _Vaterfolge_) may exist; but
succession must not be confused with the matriarchate or with
the patriarchate, each involving the idea of authority; although
paternal succession usually implies paternal power, while succession
in the female line does not necessarily carry with it the supremacy
of the mother.
[174] "Niedere und Höhere Jäger, Viehzüchter, Niedere und Höhere
Ackerbauer."--GROSSE, _Die Formen der Familie_, 25, 26.
[175] LIPPERT, _op. cit._, 30 ff.; KOHLER, _Zur
Urgeschichte der Ehe_, 4, 5, where Hildebrand is criticised;
HELLWALD, _op. cit._, 197 ff., who declares that in
the history of civilization it is "undoubtedly more correct to
regard, not pastoral life and agriculture, but nomadic life and
settled life as the marks of two diverse culture-phases."
[176] GROSSE, _op. cit._, 29 ff.
Among the peoples classed as "lower hunters," even the most
backward, exists the individual family; and in the majority of
cases it is founded on monogamic marriage, for promiscuity nowhere
appears. The authority of the husband is patriarchal. "He procures
his wife by exchange or service; and in consequence he is her owner
and lord." The "great-family" and the _gens_ (_sippe_) are also
found among these peoples; but they are relatively little developed.
_Gentes_ which have become unions for protection and control of
territory are father-_gentes_; while those in which the kinship is
traced through the mother are not unions for the purposes of the
common life, but for maintenance of the common name.[177] The case
is practically the same for the "upper hunters." Wife-purchase,
however, is more pronounced. The individual monogamic family still
predominates. Kinship through the mother is not so much a "motive
for union as it is for separation of those related by blood."[178]
Here as among the lower hunters it is the paternal _gens_ which
forms an actual union for the common life; and there is "not the
least ground for assuming" that a patriarchal gentile constitution
has replaced an earlier matriarchal form. Among peoples leading a
pastoral life, even more than with those devoted to the chase, the
chief economic production lies in the hands of the man. Accordingly
he has the place of power and honor. Through him descent and kinship
are usually traced. Nowhere is the paternal system so one-sided
and so stringently carried out as among pastoral tribes. Woman
is oppressed and degraded. She is bought or stolen by her lord.
Polygyny, with all its attendant evils, flourishes. The individual
family has a thoroughly patriarchal stamp; but it is still the most
conspicuous social fact, surpassing in practical significance for
the needs of the pastoral life the great-family, and far more the
_gens_. On the contrary, among the lower cultivators woman holds
an economic position at least equal in social importance to that
of man. As a rule, therefore, she is no longer his slave, but his
companion, sometimes even his superior. She gains a corresponding
share in the control of the children. The great-family is in like
manner affected by the new economic conditions. Communal agriculture
gives a mighty impulse to the growth of the gentile constitution;
and now among many peoples, under influence of the new and higher
position of woman, the maternal _gens_, perhaps existing side by
side with the paternal _gens_, is developed into a firm social,
economic, and political union. In the life of the lower cultivators,
if the _gens_ thus becomes the mightiest social organization, the
fact is due essentially to its economic function. With the change
from communal to individual agriculture the gentile constitution
is dissolved; and so among the higher cultivators the individual
monogamic family has more than regained its former sway. "Thus it
appears," the author summarizes, "that under every form of culture
that form of family organization prevails which is best suited to
economic needs and conditions;" although, he wisely warns us, a
perfect explanation of the various types of the human family can
never be given until every part and function of culture which has
had an influence upon the functions or the organisms of the family
has been separately examined for each case.[179]
[177] "Im Uebrigen aber bildet die Muttersippe auf
dieser Culturstufe noch keine Lebens- sondern nur eine
Namensgemeinschaft."--GROSSE, _op. cit._, 64.
[178] _Ibid._, 84.
[179] _Ibid._, 244, 245.
The views of Dargun, Hildebrand, and Grosse may be compared with the
remarkable, but scarcely well-grounded, speculation of Mucke.[180]
According to his ingenious theory, men originally lived in the
horde, which, so far from being a fortuitous unorganized band, in
which "animal promiscuity" prevailed, was so strictly ordered as
to be worthy the name of the "society of the primeval age."[181]
In the horde all are free and equal. There is no subordination
of the wife, monogamy prevails; for, since every male or female
has his predestined mate, there is no room for communism. The
author's treatise rests upon the fundamental assumption that
primitive relationships are merely "space-relationships."[182]
They do not arise in notions of descent. They are determined by
the fixed spaces occupied by each sex, generation, and individual
in the _Hordenlager_ or camping-place.[183] Every male finds his
predestined wife in the corresponding room or division on the
opposite side of the sleeping-space; each brother thus marrying the
sister nearest to himself in the order of birth. This ideal life of
the horde is brought to an end through the rise of the family. The
family (from _famel_, a "servant") is the very opposite of the horde
of free and equal members, originating as it does in subjection and
servitude. Almost simultaneously the family develops two forms, the
androcratic and the gynocratic. Each originates in capture[184]
which, under the influence of the conception of private property,
yields to purchase. In the androcratic family, the woman becomes a
slave-wife; in the gynocratic, the man becomes a slave-husband.[185]
Polyandry is the natural product of the gynocratic, as is polygyny
of the androcratic family. Originally each of these forms of the
family is part "maternal" and part "paternal," in the ordinary
sense. But gradually, under the influence of adoption, aided by
purchase, the horde is broken up and modern forms of the family
arise.[186]
[180] MUCKE, _Horde und Familie in ihrer
urgeschichtlichen Entwickelung_. _Eine neue Theorie auf
statistischer Grundlage_ (Stuttgart, 1895). Mucke is harshly
reviewed by KOHLER, _Urgeschichte der Ehe_, 17-27.
[181] "Genossenschaft der Urzeit." He derives horde from _orta_,
_orda_ = "local community," "Ortsgemeinschaft," hence "order":
MUCKE, viii, 40, 41, 43 ff., _passim_.
[182] "Raumverwandtschaften," MUCKE, 1 ff., 20-43,
_passim_.
[183] The details of the author's argument cannot here be given.
First (_erster Abschnitt_) he appeals to the mental processes
of the child. The spaces, and consequently the relationship,
arise in the child's sense-perception, the impression obtained
by the infant soul of the relative distance or remoteness of
persons belonging to the different ages and generations. The very
inadequate evidence adduced for the former universality of such
_Lager_ arrangement (_sechster Abschnitt_) consists (1) of the
alleged customs of modern Asiatic hordes; and (2) the remains
of ship-shaped graves and dwelling-places discovered in various
parts of the world. With wonderful ingenuity the author is able
to explain by his theory nearly every problem connected with
marriage and the family. Aside from the constructive part of his
work, his criticism of other writers, though often unjust and
intolerant, is sometimes acute and instructive.
[184] The brothers capture men for their sisters by way of
reprisal and retaliation for stealing the latter: MUCKE,
_Horde und Familie_, 125, 126, 111, 113 ff.
[185] But at first the man and the woman are merely slaves--there
is no sexual or marriage relation whatever: _ibid._, 117.
[186] _Ibid._, 178-82. In the fourth and fifth _Abschnitte_
(155-247) the author discusses the dissolution of the horde
through the influence of the two forms of the family. The
argument is involved and almost entirely _a priori_. It is nearly
impossible to discover his conclusion as to whether a purely
patriarchal or matriarchal family is differentiated in the
process.
II. MORGAN'S CONSTRUCTIVE THEORY
The doctrine of the primitive horde as the starting-point of social
evolution has a special interest in connection with the researches
of Lewis H. Morgan and J. F. McLennan. Though their principal works
appeared subsequently to that of Bachofen,[187] each has reached
his conclusions independently; and each, rejecting the patriarchal
family as the primordial unit, has set forth what may be called a
"constructive" theory of uniform social progress. In the hands of
each marriage and the family are made to pass through an ascending
series of phases for all mankind. Unquestionably valuable as are
their contributions to the material of sociological science, seldom
have there been seen more striking examples of hasty generalization
than appear in the theoretical parts of their work.
[187] MCLENNAN'S _Studies in Ancient History_ appeared
in 1876, being mainly a reprint of his _Primitive Marriage_,
published January, 1865, four years later than Bachofen's book;
but "it was in the spring of 1866," he says, "that I first heard
of _Das Mutterrecht_."--_Studies_, I, 319.
MORGAN'S _League of the Iroquois_ was published in 1851,
and in this he describes some of the essential facts connected
with his theory. In 1857, he re-examined the subject and
enlarged his views (_Proceedings of the Am. Association for the
Advancement of Science_, Part II). But it was not until 1871 that
his great work on _Systems of Consanguinity_ appeared, though
accepted for publication, January, 1868. This was followed by the
_Ancient Society_, 1877, in which his theory is fully elaborated.
The _Houses and House-Life of the American Aborigines_, 1881, was
originally intended as Part V of the _Ancient Society_.
This is particularly true of the theories of Morgan;[188] although
in his _Systems of Consanguinity_ he has with prodigious labor
erected a monument of scientific research whose vast importance
for the early history of human social relations is by no means
yet definitively settled; and whose _Ancient Society_, aside from
its speculative features, has the distinction of first clearly
identifying the gentile organization of the Greeks and Romans with
that of the red race of the western continents. Starting with the
organization of society "on the basis of sex," as illustrated by the
so-called class or group-marriages of the Australian Kamilaroi, he
proceeds to discuss at length the gentile systems of the American
Indians and the classic nations.[189] Originally relationship is
traced in the female line, and intermarriage is prohibited within
the _gens_. The _gens_ is older than the monogamic family. It cannot
have the family as its constituent unit, because it is composed, not
of entire families, but of parts of families.[190]
[188] Referring to Lubbock's favorable view of Morgan's
contributions to ethnological science, DR. STARCKE
declares: "With all respect for Morgan's diligence as a collector
of facts, I am more disposed to agree with McLennan that his
work is altogether unscientific, and that his hypotheses are
a wild dream, if not the delirium of fever."--_Primitive
Family_, 207, 208. _Cf._ MCLENNAN, _Studies_, I,
269; LUBBOCK, _Origin of Civilization_, 162; and
GROSSE, _Die Formen der Familie_, 3 ff. This criticism
is far too severe; see KOHLER, _Zur Urgeschichte der
Ehe_, 1 ff.; CUNOW, _Australneger_, chaps. v-vii, 11
ff.; HELLWALD, _Die mensch. Familie_, 158 ff.
[189] _Ancient Society_, 49-379; _Houses and House-Life_, 1 ff.
[190] _Ancient Society_, 227, 433 ff., 469. It is easy to see
that this argument is fallacious, even when the rule of exogamy
prevails. _Cf._ the criticism of STARCKE, _op. cit._,
275-77; BOTSFORD, _Athenian Constitution_, 4-7.
The earliest phase of sexual relations among primitive men is
promiscuity. Following this are five successive stages or forms of
marriage and the family, shading into each other, and each running
a "long course in the tribes of mankind, with a period of infancy,
of maturity, and of decadence."[191] Of these forms the first,
second, and fifth are "radical," that is, each developing a distinct
system of consanguinity. These systems of consanguinity "resolve
themselves into two ultimate forms, fundamentally distinct." One
is the _classificatory_ and the other the _descriptive_. "Under
the first, consanguinei are never described, but are classified
into categories, irrespective of their nearness or remoteness in
degree to _Ego_; and the same term of relationship is applied to
all the persons in the same category." Under the second, which
came in with monogamy and prevails among the Aryan, Semitic, and
Uralian peoples, "consanguinei are described either by the primary
terms of relationship or a combination of these terms, thus making
the relationship of each person specific."[192] The classificatory
systems of consanguinity, it should be carefully noted, are more
tenacious than the forms of marriage, their nomenclatures often
surviving long after the actual relationships they denote have
ceased to exist.
[191] _Ancient Society_, 389, and on the whole subject, 382-508.
In his earlier work, _Systems of Consanguinity_, 480 ff., MR.
MORGAN gives fifteen normal stages or institutions in the
evolution of marriage and the family. See also the summary in
MCLENNAN, _Studies_, I, 251, 252; and LUBBOCK'S
elaborate discussion of Morgan, _Origin of Civilization_, 162 ff.
[192] _Ancient Society_, 394; _Systems of Consanguinity_, 10-15;
LUBBOCK, _op. cit._, 165.
The first form of the family in Morgan's series is the
consanguine,[193] based on the intermarriage of brothers and
sisters, own and collateral, in a group. Though now extinct, this
form is thought once to have been universal, rude survivals being
found even in the present century among the Hawaiians. But the
evidence of its former existence upon which Mr. Morgan relies as
conclusive is the Malayan system of consanguinity, which he assumes
could only have been produced by it. This system is found among
the Maoris, the Hawaiians, and other Polynesians. Anciently it
may have prevailed generally in Asia; and it lies at the basis of
the Chinese relationships. The Malayan system is classificatory.
"The only blood-relationships are the primary," being comprised in
five categories. These are parent, child, grandparent, grandchild,
brother and sister. Thus consanguine marriage "found mankind at the
bottom of the scale" of social progress.
[193] _Ancient Society_, 383 ff., 401-23; _Systems of
Consanguinity_, 480 ff., 488 ff., where the term "communal
family" is used.
In course of time, however, its evils were perceived and the second
form of the family arose. This is the Punaluan,[194] resting on
the intermarriage of several sisters in a group with each other's
husbands; or on that of several brothers in a group with each
other's wives; marriage between brothers and sisters not being
permitted. "The Punaluan family has existed in Europe, Asia, and
America[195] within the historical period, and in Polynesia within
the present century," the most interesting example being afforded by
the Hawaiians. It is an outgrowth of the consanguine family "through
the gradual exclusion of own brothers and sisters from the marriage
relation."[196] With it arose the organization into _gentes_, whose
"fundamental rules" in the archaic form are exogamy and relationship
in the female line. The Punaluan family co-operating with the
gentile organization,[197] produced the Turanian or Ganowánian
system of consanguinity, which is also classificatory.[198] This
is described by Morgan as "simply stupendous," recognizing "all the
relationships known under the Aryan system, besides an additional
number unnoticed by the latter."[199]
[194] _Systems of Consanguinity_, 131 ff., 489, 490; _Ancient
Society_, 424-52. The Hawaiian word _Pŭnalŭa_ means "dear
friend," "intimate companion": _ibid._, 427.
[195] In forty North American tribes the former existence of the
Punaluan family is thought to be proved by the Turanian system
of consanguinity and by the right of the husband of the eldest
sister to the younger sisters also: _Ancient Society_, 432, 436.
[196] _Ibid._, 424.
[197] Since the rule of exogamy as respecting the _gens_ would
permit the intermarriage of brothers and sisters. For convenience
McLennan's term "exogamy" is here used to indicate prohibition of
marriage within the _gens_.
[198] _Systems of Consanguinity_, 131-382. But, curiously enough,
among the peoples with the Punaluan family the Malayan system of
consanguinity survived: _Ancient Society_, 426, 427, _passim_.
_Ganowánians_ are the American Indians, the word meaning
"bow-and-arrow people": _Systems of Consanguinity_, 131. _Cf._
MCLENNAN, _Studies_, I, 253, n. 1.
[199] _Ancient Society_, 387, 435 ff. In all more than two
hundred relationships of the same person are recognized: _ibid._,
436.
But forces were now operating within the Punaluan family which
were destined to transform it. "From the necessities of the social
state," there was more or less pairing from the first, "each man
having a principal wife among a number of wives, and each woman
a principal husband among a number of husbands." Moreover, the
fuller development of the gentile organism, with its rule of
exogamy, tended to foster a sentiment hostile to the intermarriage
of near kindred and, in other ways, to produce a scarcity of women
available for marriage within the Punaluan groups, thus leading to
wife-capture and wife-purchase. Under these influences arose the
Syndiasmian, or third general type of the family, based upon the
marriage of single pairs, often temporary and without exclusive
cohabitation. It is found among the Senaca-Iroquois and many other
American tribes, among the Tamils of South India, and some other
races of Asia.[200] This family did not produce a distinct system of
consanguinity, the peoples having it still retaining the Turanian
system.[201] The next, or Patriarchal, family, like the Syndiasmian,
is "intermediate," not being "sufficiently influential upon human
affairs to create a new, or modify essentially the then existing
system of consanguinity."[202] It is found particularly among the
Semites and Romans, and is characterized by the "organization of
a number of persons, bond and free, into a family under paternal
power, for the purpose of holding lands, and for the care of flocks
and herds." The Syndiasmian, and in a less degree the Patriarchal,
constitute the transitional stage in the development of the
Monogamic family. Its rise was especially fostered by the influence
of property and the increase of the paternal power, leading to the
change from the female to the male line of descent. It produced the
system of consanguinity prevailing among the Uralian, Semitic, and
Aryan peoples.[203]
[200] _Ibid._, 384 ff., 453-65. Called the "barbarian" family in
_Systems of Consanguinity_, 490, 491.
[201] _Ancient Society_, 461.
[202] _Ibid._, 384, 465, 466; _Systems of Consanguinity_, 480,
491.
[203] _Ancient Society_, 468-97; _Systems of Consanguinity_, 492,
493, 3-127.
Such, sketched in hasty outline, is the symmetrical structure which
the author of the _Ancient Society_ has erected. But it has not
been able wholly to withstand the shock of adverse criticism. The
argument rests on too narrow a basis of investigation, and it is
sometimes contradictory in its details. Its real foundation is the
assumption that the nomenclatures of the classificatory systems of
relationship must necessarily denote actual relationships. The truth
of this assumption, however, is not self-evident. Other explanations
of their meaning, some of them simpler and far more probable, have
been offered. In the first place, it is evident that Morgan was
misled by Fison's account of the Kamilaroi class-marriages.[204]
Only in Australia was he able to find in existence, as he believed,
a social organization upon the basis of sex. Yet it is by no
means established that communal or even group-marriage has ever
prevailed among the Australian aborigines. The criticism of Mr.
Curr has raised doubt as to the trustworthiness of Fison's theory,
although it may not have entirely shattered it.[205] According to
Curr, the class-system is an ingenious arrangement to prevent
close intermarriages. Even first cousins may not marry.[206] The
Australian is very jealous of his wife, who may be betrothed to
him in childhood. Wife-lending occurs, but it is not sanctioned
by custom. The use of a single word for different relationships,
as for father and father's brother, is not an evidence of former
group-marriage, but of "poverty of language."[207] Nevertheless the
Australian nomenclature is richer in terms of relationship than has
been assumed by Mr. Fison. "There is hardly an Australian vocabulary
in print" in which distinct translation of terms for "uncle, aunt,
nephew, niece, sister-in-law, and son-in-law" do not occur.[208]
[204] Published by MORGAN in _Proceedings of the
Am. Academy of Arts and Science_, for 1872; and subsequently
presented in full by FISON in _Kamilaroi and Kurnai_,
50 ff., 99 ff., 159 ff., _passim_; MORGAN, _Ancient
Society_, 49-61. Compare MCLENNAN'S account of
Australian kinship in _Studies_, II, 278-310, especially 304 ff.
[205] CURR, _The Australian Race_, I, 106-42. _Cf._
also KEANE, _Man: Past and Present_, 154, 155; and
CRAWLEY, _Mystic Rose_, 348, 476 ff.
[206] CURR, _op. cit._, I, 111, 112.
[207] _Ibid._, 116.
[208] _Ibid._, 140. Compare the criticism of
WESTERMARCK, _Human Marriage_, 56, 57.
Mucke, as we have already seen, explains the classificatory system
as being a survival of the primitive "space-relationships" of the
primitive horde.[209] By Kautsky also its origin is traced to the
horde in which "hetairistic monogamy" prevailed, and in which
blood-relationship with the parents was not regarded. The classes,
therefore, have nothing to do with descent, but each embraces all
the individuals of a single generation under a common name.[210]
[209] MUCKE, _Horde und Familie_, 31 ff., _passim_.
[210] KAUTSKY, "Entstehung der Ehe und Familie,"
_Kosmos_, XII, 194-98, 256.
On the other hand, McLennan, in his well-known controversy with
Morgan,[211] insists that the system of nomenclature is merely
a "system of mutual salutations," urging the fact that most of
the peoples having it possess also "some well-defined system of
blood-ties."[212] Yet he believes that the Malayan nomenclature,
which lies at the basis of Morgan's classificatory system, "had its
origin in some early marriage-law."[213] Starcke criticises this
inconsistency,[214] and comes to the conclusion, after examination
of the whole question, that the "nomenclature was in every respect
the faithful reflection of the juridical relations which arose
between the nearest kinsfolk of each tribe. Individuals who were,
according to the legal point of view, on the same level with the
speaker, received the same designation."[215] In substantial harmony
with this opinion are the results of Westermarck's researches.[216]
According to his view the classificatory nomenclatures are merely
terms of address, used to denote the sex, relative age, or the
"external, or social relationship in which the speaker stands to the
person whom he addresses."[217]
[211] See _Studies_, I, 249-315; II, 304 ff.; and the reply of
MORGAN, _Ancient Society_, 509 ff.
[212] _Studies_, I, 270, 271, 273.
[213] _Studies_, I, 277. The form of marriage referred to is
Nair polyandry. So the Turanian system is referable to Thibetan
polyandry. _Cf._ MORGAN, _op. cit._, 517 ff.
[214] _Primitive Family_, 181.
[215] _Ibid._, 207, 171-208. STARCKE is criticised by
CUNOW, _Australneger_, 165, for lack of thoroughness and
consistency in his examination of the classificatory systems.
[216] _History of Human Marriage_, chap. v, 82 ff.
[217] _Ibid._, 90. LUBBOCK, _Origin of Civilization_,
162-203, criticises Morgan's views as to the classificatory
systems and concludes that the "terms for what we shall call
relationships are, among the lower races of men, mere expressions
for the results of marriage customs, and do not comprise the
idea of relationship as we understand it; that, in fact, the
connection of individuals _inter se_, their duties to one
another, their rights, and the descent of their property, are
all regulated more by the relation to the tribe than by that to
the family; that, when the two conflict, the latter must give
way" (202). TYLOR, _On a Method of Investigating the
Development of Institutions_, 261-65, discovers a close relation
between exogamy and the classificatory system. Thus out of
fifty-three tribes with that system thirty-three observe the rule
of exogamy (264).
These criticisms have not gone unchallenged. More recent and more
detailed examination of the classificatory nomenclatures has thrown
new light on their meaning; although their origin in promiscuity or
"group-marriage" has not been conclusively established. Thus Cunow,
who in general accepts the former existence of group-marriage among
various peoples, and even finds traces of it in Australia,[218]
denies that the Australian class-nomenclatures are derived from
original group-relations;[219] nor are they, as Westermarck
believes, ever employed as mere empty terms of polite or respectful
address.[220] The class-systems arose in a very early recognition
of three generations or stages of seniority, in order to hinder
sexual relations between relatives in the ascending and descending
line.[221] For this reason, and because of the existence among
some backward tribes of significant terms of kinship, individual
marriage must as a general rule have existed among the Australian
natives from the "earliest times."[222] Thus, "in its original
form," the author concludes, "the division into classes is a
striking confirmation of Morgan's theory, that the first step in the
development of systems of relationship consists in the prevention of
sexual union between parents and children in the wide sense."[223]
For the same reason it follows that intermarriage between the
nearest collateral relatives may not have been excluded.
[218] The so-called "Pirauru marriage" of the Dieri tribe
(HOWITT, in _Trans. R. S. Victoria_, I, Part II, 1899,
96) and the "Dilpamali marriage" of the Kunandaburi tribe
(CUNOW, _Australneger_, 163). Practically the same is
the Piraungaru custom of the Urabunna tribe which SPENCER AND
GILLEN, _Native Tribes of Central Australia_, 61 ff., regard
as a "modified form of group-marriage."
[219] CUNOW, _op. cit._, 161, 163-65.
[220] _Idem_, _Australneger_, 176.
[221] On the three _Altersclassen_ or _Altersschichtungen_,
see _ibid._, 25 ff. The present class-system of the Kamilaroi,
the author believes, is not older than the rise of the gentile
organization. "Originally the division into classes by no
means served, as Morgan and Fison assume, to exclude sexual
intercourse between near collateral kindred, but to prevent
cohabitation between relatives in the ascending and descending
line, between parents and children, uncles and nieces, aunts
and nephews, etc." _Cf._ as to the main point the somewhat
similar views of HELLWALD, _Die mensch. Familie_,
158 ff.; LIPPERT, _Kulturgeschichte_, I, 81-83; and
KAUTSKY, _Kosmos_, XII, 196-98.
[222] CUNOW, _op. cit._, 161, 162: Among backward tribes
parents are distinguished from parents' brothers and sisters; and
own children from the children of own brothers and sisters.
[223] _Ibid._, 25. See the somewhat similar conclusion of
ATKINSON, _The Primal Law_, 280-94; and compare the
criticism of CUNOW by LANG, _Social Origins_,
37, 112-18.
Much more radical are the conclusions reached by Kohler in the
monograph in which, by a minute examination of Morgan's tables
and other materials, he seeks to establish the genetic relations
subsisting between "totemism, group-marriage, and mother-right," as
they appear among the Dravidians, the Australians, and the American
aborigines. The researches of Curr and Westermarck are criticised
as being too general and as lacking in rigid scientific method.[224]
Abundant "survivals," such as the levirate, wife-lending, and,
above all, the class-system, seem to demonstrate the former
existence of group-marriage in Australia; and in the same way the
same result is reached for the other peoples considered. The "key"
to the problem is found in totemism, one of the most "formative
and vitalizing impulses of mankind. In totemism lies the germ
of the future family and state."[225] It is the characteristic
feature of the social and religious life of the American Indians.
From its very nature totemism favors the rise of mother-right and
group-marriage. No person can belong to more than one totem, which
is therefore of necessity exogamous. Choice must be made between
the maternal and the paternal line--for totemism implies the
blood-bond. This choice naturally leads directly to mother-right;
since the relation of mother and child is the central fact in the
genesis of social experience. The maternal system precedes the
paternal, and no trustworthy examples of the opposite evolution
have been discovered.[226] Furthermore, totemism leads straight
to group-marriage. For if two totem-groups may intermarry, it
follows that the "men of one totem may marry women of the other
and _vice versa_." With kinship counted in the maternal line,
this fact implies that a man may mate with his own daughter;
while the union of mother and son or brother and sister would be
excluded because of the identity of their totem.[227] Totemism
is thus a means of differentiating matrimonial classes. "The
whole history of group-marriage," the author concludes, "is a
history of the restriction of marriage from totem to totem by the
separation of under-totems through which marriage is subjected to
definite conditions." Totemistic group-marriage appears to be the
"starting-point" of social culture for all the races of mankind.
Whether a more primitive stage of promiscuity may have preceded it,
the author in this paper does not undertake to establish.[228]
[224] KOHLER, _Zur Urgeschichte der Ehe_, 3, 14 ff.,
151 ff. This paper supplements the author's earlier _Recht der
Australneger_, _ZVR._, VII, 321 ff., 329 ff., 337 ff., where
Fison's general conclusions are accepted and the literature cited.
[225] "Der Totemglaube gehört zu den bildensten,
lebensvollsten, religiösen Trieben der Menschheit. In dem
Totemismus liegt die künftige Familien- und Staatenbildung im
Keime."--KOHLER, _op. cit._, 27.
[226] _Ibid._, 62.
[227] _Ibid._, 39 ff., 41, 53 ff., 64, 65.
[228] _Ibid._, 65, 163, 164.
Similar results are reached by Spencer and Gillen, who have given
a remarkably clear and minute account of matrimonial, tribal,
and totemistic institutions in central Australia. So far as the
Australians are concerned, the theory that the classificatory
nomenclatures are merely terms of address is positively
rejected.[229] "When, in various tribes, we find series of terms of
relationship all dependent upon classificatory systems such as those
now to be described, and referring entirely to a mutual relationship
such as would be brought about by their existence, we cannot do
otherwise than come to the conclusion that the terms do actually
indicate various degrees of relationship based primarily upon the
existence of inter-marrying groups.... Whatever else they may be,
the relationship terms are certainly not terms of address, the
object of which is to prevent the native having to employ a personal
name. In the Arunta tribe, for example, every man and woman has a
personal name by which he or she is freely addressed by others--that
is, by any, except a member of the opposite sex who stands in the
relationship of '_Mura_' to them, for such may only on very rare
occasions speak to one another."[230] The fundamental idea of the
Australian classes is "that the women of certain groups may marry
the men of others." It is a device for limiting and defining the
inter-marriage of persons supposed to be of common blood.[231]
[229] SPENCER AND GILLEN, _Native Tribes of Central
Australia_, 56.
[230] _Ibid._, 56, 57. "A man can only marry women 'who stand in
the relationship of _nupa_, that is, are children of his mother's
elder brother's blood or tribal, or, what is the same thing, of
his father's elder sister.'" The mother of a man's _nupa_ is
"_mura_ to him and he to her, and they must not speak to one
another." This applies to a possible mother, _i. e._, the sister
of the father: _ibid._, 61, 62.
[231] _Op. cit._, 58.
Crawley likewise holds that the terms of the classificatory systems
"are terms of kinship and not terms of address;" although being
"in origin terms of _relation_," so far they are "terms of address
also." For "all of the terms can be used as terms of address, just
as our terms of relationship can be so used." The classificatory
system, in some cases, appears clearly as a device to assist nature
in confining marriage within the same generation.[232]
[232] _Mystic Rose_, 473, 474.
The results of the most recent research, therefore, seem to have
advanced our knowledge of the early social condition of mankind; but
not to have definitively settled the problem of the former existence
of communistic marriage. One rises from an examination of the
literature relating to totemism and to the classificatory systems of
relationship with a feeling that much more material must be gathered
and exploited before we shall escape entirely from the domain of
speculation as to their full meaning.[233]
[233] In general on the Australian class-systems see further,
TYLOR, _Early History of Mankind_, 288; WAKE,
_Marriage and Kinship_, chap. iv; KOVALEVSKY, _Tableau_,
13 ff.; LUBBOCK, _Origin of Civilization_, 104 ff.,
BERNHÖFT, in _ZVR._, IX, 6 ff.; MCLENNAN,
_Studies_, II, 304 ff., where the reports of Grey, Ridley, and
other observers are summarized; GROSSE, _Die Formen
der Familie_, 49 ff., 58 ff., who, in the main, accepts Curr's
conclusions; DAWSON, _Australian Aborigines_, 1, 2,
26-40; FOREST, "Marriage Laws of N. W. Australia,"
_Report 2d Meeting of Aust. Association Adv. Sci._ (1890), 653,
654; FISON, "Group-Marriage and Relationships," _ibid._,
_4th Meeting_ (Tasmania, 1893), 688-97, criticising Westermarck,
717-20, criticising McLennan; MATHEW, "Australian
Aborigines," _Jour. R. S. N. S. Wales_, XXIII, 335-49,
criticising Morgan and McLennan. Consult also the references in
the Bibliographical Note at the head of the chapter.
For further discussion of Morgan's researches see
BERNHÖFT, _Verwandtschaftsnamen und Eheformen_;
POSADA, _Théories modernes_, 52-57; SCHROEDER,
_Das Recht in der geschlechtl. Ordnung_, 18 ff.; CUNOW,
_Australneger_, v-vii, 11 ff.; GROSSE, _op. cit._,
3 ff.; HELLWALD, _Die mensch. Familie_, 158 ff.;
BEAUCHAMP, "Aboriginal Communal Life in America," _Am.
Antiquarian_, IX, 343-50, attacking Morgan's views, holding
that proper communism is not found among the red Indians;
GIRAUD-TEULON, _Les origines du mariage_, 92-101, 169
ff.; FISON AND HOWITT, _Kamilaroi and Kurnai_, 99,
101, 149, 316 ff., who, for the Australian groups, sustain
Morgan as opposed to McLennan; WAKE, _op. cit._, 15,
19, 112, 266 ff., 297 ff.; LETOURNEAU, _L'évolution
du mariage_, 432, 433, who accepts Morgan's five forms of the
family; KOVALEVSKY, _op. cit._, 9, 10; MAINE,
_Early Law and Custom_, 195 ff., _passim_; PESCHEL,
_Races of Man_, 224, 228 ff., who rejects Morgan's conclusions;
LUBBOCK, "Development of Relationships," _Jour. Anth.
Inst._, Feb., 1871.
III. McLENNAN'S CONSTRUCTIVE THEORY
McLennan's theory[234] starts also with man in a condition, as he
conceives it, resembling that of other gregarious animals. The
unions of the sexes are "probably, in the earliest times, loose,
transitory, and in some degree promiscuous."[235] There is no idea
of consanguinity, though men may always have been held together by
that "feeling of kindred" which arises in "filial and fraternal
affection."[236] Everywhere when society emerges from this condition
kinship is traced in the female line. Originally paternity is
uncertain,[237] hence the recognition of relationship through the
mother must of necessity have preceded the parental and the agnatic
systems;[238] and this order of development is never reversed.
[234] _Studies in Ancient History_, I, viii, 83-146. McLennan's
views are somewhat modified and further developed in his
_Patriarchal Theory_, notably in chaps. xii and xiii, 181-242;
and a mass of new material is presented in his _Studies_, 2d ser.
(1896).
[235] In his two earlier works McLennan is vague as to the exact
meaning of "promiscuity" and "polyandry;" but in his letter to
Darwin (1874), _Studies_, II, 50-56, he defines these terms, so
that, in effect, he makes important concessions to the adherents
of early monogamy and polygyny and to those critics who have
questioned his theory of universal phases of progress. He says,
referring to the first series of _Studies_: "The import of my
reasoning is that more or less of it [promiscuity] and of
_indifference_ must appear in the hordes or their sections or
some of them." It is used to "denote the general conduct as to
sexual matters of men without wives.... Now I agree with you
that from what we know of human nature we may be sure that each
man would aim at having one or more women to himself, and cases
would occur wherein for a longer or shorter time the aim would
be realized, and there would be instances of what we may call
polygyny and monogamy--your first stage.... I take it, polygyny,
monogamy, and polyandry (or its equivalents) must have occurred
in every district from the first;" but the cases of polyandry
would be much more numerous. "Polyandry, in my view, is an
advance _from_, and _contraction_ of, promiscuity. It gives men
wives. Till men have wives they may have tastes, but they have
no obligations in matters of sex. You may be sure polygyny in
the early stage never had the sanction of _group opinion_." This
late explanation does not, however, relieve the author from
responsibility for the misleading statements or obscurities of
his earlier works. _Cf._ the rather too appreciative review of
the second series of _Studies_ by PROFESSOR GIDDINGS, in
_Annals of the Am. Academy_, IV, 97-100.
[236] _Studies_, I, 83, 88-90.
[237] _Ibid._, chap. viii.
[238] On the three systems of kinship see POST,
_Familienrecht_, 6 ff.
Though the "filial and fraternal affections may be instinctive,"
they are "obviously independent of any theory of kinship, its origin
or consequences; they are distinct from the perception of the unity
of blood upon which kinship depends; and they may have existed long
before kinship became an object of thought." Such a group may have
been held together chiefly "by the feeling of kindred;" but the
"apparent bond of fellowship ... would be that they and theirs had
always been companions in war or the chase--joint-tenants of the
same cave or grove."[239] Slowly the idea of blood-relationship
arose; and eventually observation led to a recognition of the
system of kinship through the mother. Further than this, so long
as paternity remained uncertain, primitive men could not go. For
the theory in question, therefore, the maternal system of kinship
existing in the homogeneous "group-stock" is the social fact of
fundamental importance. But primitive man was rude, ignorant,
relatively helpless. "Before the invention of the arts, and the
formation of provident habits, the struggle for existence must
often have become very serious. The instincts of self-preservation,
therefore, must have frequently predominated." Society would tend
toward one common type in which there was little place for the
"unselfish affections." In this "struggle for food and security"
the balance of the sexes would be disturbed. "As braves and hunters
were required and valued, it would be to the interest of every horde
to rear, when possible, its healthy male children." The weaker sex
must obey the cruel law requiring the "survival of the fittest."
Hence arose the common, perhaps general, practice of female
infanticide.[240] The result of this disturbance of the balance of
the sexes, caused by female infanticide, was a series of customs or
phenomena of great sociological interest, requiring notice in the
order in which they are supposed to have arisen.
[239] MCLENNAN, _op. cit._, I, 83, 84.
[240] _Ibid._, 90, 91, 75-77; II, 77-80. After the appearance of
totem groups, infanticide would be checked by the blood-feud:
_ibid._, I, 145.
1. The natural consequence of the diminution in the number of women
was to enhance their relative importance. Every woman would now have
several wooers. Rivalry was fierce and "unrestrained by any sense
of delicacy from a copartnery in sexual enjoyments." Quarrels and
divisions within the horde would be of frequent occurrence. "These
were the first wars for women, and they went to form the habits
which established exogamy." But, if complete social disintegration
would be avoided, self-preservation required a compromise. A
rearrangement in smaller hordes took place; and so "we arrive
at last at groups within which harmony was maintained through
indifference and promiscuity;" where women, "like other goods,"
were held in common; and "children, while attached to mothers,"
belonged to the horde.[241] We have reached in fact, as the first
result of female infanticide, the "totem _gens_" or group of totem
kindred, having a common name, taken from some plant, heavenly body,
or animal, whose image is sometimes tattooed upon their bodies, and
which is sometimes revered as an ancestor, sometimes as an ancestral
god.[242]
[241] _Ibid._, 91-93.
[242] On totemism see MCLENNAN, _Patriarchal Theory_,
206, 207, 227-29, 230-36; _Studies_, II, 368 ff., _passim_;
MORGAN, _Ancient Society_, 49 ff., who gives many
facts relating to totem _gentes_ among the American Indians
and elsewhere; WAKE, _Marriage and Kinship_,
Index; FISON AND HOWITT, _Kamilaroi and Kurnai_,
40-49, 165-71, who criticise LUBBOCK, _Origin of
Civilization_, 210, 338 ff., 263; STARCKE, _Primitive
Family_, 20 ff., 29 ff., _passim_; TYLOR, _Primitive
Culture_, I, 42, 213, 215. WESTERMARCK, _Human
Marriage_, chap, ix, denies that tattooing is fundamentally
connected with totemism, and holds that it is a form of
ornamentation to serve as a means of sexual attraction. _Cf._
MUCKE, _Horde und Familie_, 77; PLOSS, _Das
Weib_, I, 94 ff.; 196 ff.; BACHOFEN, _Mutterrecht_,
335; FRASER, _Totemism_; _idem_, _Golden Bough_,
III, 416 ff.; CRAWLEY, _Mystic Rose_, 249, 398,
457, 470; HELLWALD, _Die mensch. Familie_, 190 ff.;
FLETCHER, "A Study from the Omaha Tribe," _Procds.
A. A. A. S._, XLVI, 325-34; _idem_, "Emblematic Use of the
Tree in the Dakotan Group," _ibid._, XLV, 191-209; especially
KOHLER, _Zur Urgeschichte der Ehe_, 27 ff.; and
SPENCER AND GILLEN, _Native Tribes of Central
Australia_, containing the best and fullest account of the
Australian forms of the institution.
2. The next institution originating in scarcity of women is
polyandry, a form of sexual relations which, by the adherents of
the horde-theory, is regarded as the earliest type of the family,
properly so called: a family resting upon marriage, that is, upon a
courtship "of men and women, protected by public opinion."[243] It
is of special interest, because in its progressive phases it is held
to be the medium of transition from the maternal to the parental
and agnatic systems of kinship; and, therefore, through the aid of
contract in the form of wife-purchase, to modern conceptions of the
marriage relation. Polyandry is represented as a universal phase
of social evolution, constituting the first general modification
of promiscuity.[244] Of this there are two principal forms with
intermediate stages. In Nair[245] polyandry, the lowest type, we
find a condition of sexual relations closely bordering upon the
grossest communism. The "wife lives not with her husbands, but
with her mother or brothers;" and, under certain "restrictions as
to tribe and caste," she is free to choose her husbands or lovers,
these not being necessarily related to each other. Here kinship
and inheritance are, of course, in the female line. "No Nair knows
his father, and every man looks upon his sister's children as his
heirs."[246] In a transitional stage the wife has a home of her own,
cohabiting with her husbands according to fixed rules. The highest
type of polyandry is found in Tibet; and in this case there is a
close approach to the essential elements of the modern family. The
wife lives in the home of her husbands, who are near relatives,
usually brothers. It is the prerogative of the eldest brother to
choose the wife. All the children are assumed to belong to him, and,
as a matter of fact, the first-born is usually known to be his.
Paternity therefore is not entirely uncertain, while the father's
blood is always known.[247] The same type of polyandry, somewhat
more advanced, appears among the Dravidian Todas of India. Here
monogamy and polyandry exist side by side. One man, for example,
may have a wife exclusively his own, while his brothers may choose
one in common. Usually when one brother has taken a woman to wife,
and paid the dower to her parents, the other brothers or very near
relatives, all living together, may gain the rights of husbands,
"if both he and she consent," by simply providing their respective
shares of the dower, which almost invariably consists of from one
to four buffaloes.[248] According to Marshall, "no females, whether
married or single, possess property; but, under all circumstances
of life, are supported by their male relations, being fed from
the common stock." When "a father dies, his personal property is
divided equally among all his sons. If the deceased, being an
elder brother, should have no sons, his next brother inherits all
the property. All children of both sexes belong to the father's
family; and inheritance runs through the male line only. Thus (1)
if a widow should re-marry, her sons by both marriages have claims
on their respective father's property. (2) If one or more women
are in common to several men, _each_ husband considers _all_ the
children as his--though each woman is mother only to her own--and
each male child is an heir to the property of all of the fathers."
Moreover, there exists a kind of levirate. "In order to avoid the
complications that would arise, in the matter of food and the
guardianship of property, from the re-marriage of widows, if they
entered other families taking their children with them, either a
brother or other near relation of her deceased husband takes her to
wife." She "remained in the family" is the Toda expression.[249]
"Now if we consider that one or more brothers may each become the
husband of separate wives by virtue of having each paid a dower, and
that younger brothers as they grow to age of maturity, and other
brothers as they become widowed, may each either take separate
wives or purchase shares in those already in the family, we can at
once understand that any degree of complication in perfectly lawful
wedded life may be met with, from the sample of the single man
living with a single wife to that of the group of relatives married
to a group of wives. We begin to see also why tribes following
polyandrous habits endeavor to prevent further complications by
making widows 'remain in the family.'" It follows that economic
motives even here are influential in molding matrimonial
institutions. The same motives, the scarcity of subsistence, are
likewise the main cause of the very extended female infanticide
which widely prevailed previous to 1822, when the Madras government
"put a pressure on the Todas, in order to impel them to forsake
their murderous practice." It was formerly the habitual custom to
smother "all daughters in every family, except one or sometimes
two."[250] The Todas are an in-and-in breeding people. "Although
there _are_ degrees of kinship, within whose limits the union of the
sexes is held in actual abhorrence, yet half brothers and sisters
are not included amongst the objectionables."[251]
[243] For MCLENNAN'S best statement as to the nature and
prevalence of polyandry see his interesting letter to Darwin,
_Studies_, II, 50-56, already mentioned.
[244] _Ibid._, I, 93 ff., 97, 133 ff.; II, 47-56; _Patriarchal
Theory_, 267 ff. In general, on polyandry, see MARSHALL,
_A Phrenologist amongst the Todas_, 190-232; STARCKE,
_op. cit._, 128-40, 77 ff., _passim_; SMITH, _Kinship
and Marriage_, 121 ff., 277-79; FISON AND HOWITT,
_op. cit._, 144 ff.; WAKE, _op. cit._, 134-78, Index;
GIRAUD-TEULON, _Origines du mariage_, 150 ff., 434
ff.; WESTERMARCK, _op. cit._, chaps, xx-xxii, 3,
115-17, 547-49; MAYNE, _Hindu Law and Usage_, 60
ff.; SPENCER, _Principles of Sociology_, I, 672-81,
641 ff.; LUBBOCK, _Origin of Civilization_, 79,
143 ff.; SCHMIDT, _Jus primae noctis_, 35, 36,
319, 320; POST, _Familienrecht_, 54-63; _idem_,
_Afrikanische Jurisprudenz_, I, 40, 303; _idem_, _Die
Geschlechtsgenossenschaft_, 16 ff.; LETOURNEAU,
_L'évolution du mariage_, 40, 49, 90-109; MASON,
_Woman's Share in Primitive Culture_, 221, 222; MAINE,
_Early Law and Custom_, 106, 123, 200; FRIEDRICHS,
"Ursprung des Matriarchats," _ZVR._, VIII, 371 ff.; _idem_,
"Familienstufen und Eheformen," _ibid._, X, 257, 258;
MUCKE, _op. cit._, 181-38; KAUTSKY, "Entstehung
der Ehe und Familie," _Kosmos_, XII, 258, 264, 344-48;
BERNHÖFT, in _ZVR._, IX, 12 ff.; KOHLER, _op.
cit._, 143; GROSSE, _Die Formen der Familie_, 117 ff.;
HELLWALD, _op. cit._, 241-61; SCHNEIDER, _Die
Naturvölker_, II, 459 ff.; ACHELIS, _Entwicklung der
Ehe_, 28 ff.; ELLIS, in _Pop. Sci. Monthly_, Oct., 1891.
[245] MCLENNAN believes this form to be wide-spread. It
is found in Ceylon, among the Kasias and Saporogian Cossacks, and
elsewhere. The higher and lower forms often appear together among
the same people: _Studies_, I, 99 ff. "Beena" marriage of Ceylon
is believed to be a modification of their polyandry.
[246] BUCHANAN, _Journey_, II, 594; MCLENNAN,
_op. cit._, I, 102. _Cf._ on the Nairs, GIRAUD-TEULON,
_op. cit._, 150-64; STARCKE, _op. cit._, 83-87, 133 ff.;
SMITH, _Kinship and Marriage_, 122; LETOURNEAU,
_op. cit._, 99-101.
[247] _Cf._ SPENCER, _Principles of Sociology_, I, 676,
677.
[248] MARSHALL, _op. cit._, 210. According to FRAU
JANSSEN (_Globus_, XLIII, 371), it is the custom for
the "young wife to become the spouse of _all_ the brothers
of her husband; her first child counts as that of the eldest
brother, the second as that of the second, and so forth." _Cf._
HELLWALD, _op. cit._, 246.
[249] MARSHALL, _op. cit._, 206, 207. To be a _barudi_
or widow or a _baruda_ or widower is a term of reproach: _ibid._,
208.
[250] _Ibid._, 111, 196, 213.
[251] _Ibid._, 221. In this regard as in many others the Todas
resemble the Veddahs: SARASIN, _Die Weddas von Ceylon_,
I, 465-67. For a good account of polyandry among the Todas and
other peoples see HELLWALD, _op. cit._, 241 ff., 246 ff.
Accordingly, through polyandry, it is held, the transition to the
parental or paternal system of kinship becomes possible, and sooner
or later it usually takes place. Among the Todas father-right is
fully established. In Tibet the inheritance goes to the brothers in
the order of birth; and, failing these, to their eldest son, who, as
already seen, is often known to be the eldest brother's child. This
rule, it is maintained, may readily lead to agnation. Nevertheless
the primitive custom of mother-right was very tenacious. Resisted by
the gentile organization and the blood-feud, the transition was slow
and painful. It was facilitated by contract and initiation.[252]
A woman might be bought with the understanding that the children
should belong, not to her own clan, but to that of her husband. Or,
when contract alone was not sufficient to overcome the resistance
of religion and the blood-feud, the same result might be obtained
by purchase, followed by initiation into the sacred rites of the
husband's kindred.[253] Moreover, as in Tibet and among the Todas,
wife-purchase or its survival is sometimes found in connection with
polyandry.[254]
[252] On wife-purchase and initiation, as a means of transition
to the paternal system, see MCLENNAN, _Patriarchal
Theory_, 232-38.
[253] Thus, in Guinea, according to Bosman, in ordinary
marriages, even when the wives were purchased, the children
belonged to the mother. "It was customary, however, for a man
to buy and take to wife a slave, a friendless person ... and
consecrate her to his Bossum or god." In this case the "children
would be born of his kindred and worship."--BOSMAN,
_Description of Guinea_, 161; MCLENNAN, _op. cit._, 235,
236.
[254] MASON, _Woman's Share in Primitive Culture_,
222; ROCKHILL, _Land of the Lamas_, 213, 339;
MARSHALL, _op. cit._, 210 ff., 217, 219.
McLennan believes that Tibetan polyandry has been nearly, if not
quite, universal, and that it is an "advance upon the Nair type."
Many evidences of its alleged actual existence in present and former
times are adduced; and where the institution is not found reliance
is placed upon the presence of certain customs, such as the Niyoga,
or the "appointed daughter," of the Hindus, the Hebrew levirate, and
the inheritance by brothers, which are held to be its survivals.[255]
3. The disparity in the number of women would next produce the
custom of wife-capture. The normal condition of primitive men is
assumed to be that of strife.[256] Women would naturally be sought
as the most valuable of the spoils of war. This would lead to
polygyny. Since there can be no certainty as to fatherhood where
the practice of seizing the women from hostile tribes obtains,
wife-capture is the means of maintaining the system of counting
kinship through the women only; and the existence of that system, at
some time, must be inferred wherever wife-capture or its form in the
marriage ceremony is discovered.
[255] An "appointed daughter" is one assigned by contract in
marriage to bear an heir to her father who has no son. In the
Niyoga a son is begotten upon the wife, in the lifetime of the
husband, by a person appointed for that purpose. The levirate
and other like expedients existed also among the Hindus:
_Ordinances of Manu_, IX, 53, 57-69, 97, 143 ff.; BURNELL
AND HOPKINS, 253 ff.; "Gautama," _Sacred Books of the
East_, II, 267 ff.; MAYNE, _Hindu Law and Usage_,
chap. iv; MCLENNAN, _Patriarchal Theory_, 268, 286
ff.; LEIST, _Alt-arisches Jus Gentium_, 122, 123;
JOLLY, _The Hindu Law of Partition_, 144-66; _idem_,
_Rechtliche Stellung der Frauen bei den alten Indern_, 36-38
(levirate). For the Hebrew form of the levirate, see Deuteronomy
25:5-11, where the brother is required to "perform the duty of
an husband's brother to the widow." The book of Ruth contains
many illustrations of primitive family custom. SIR HENRY
MAINE, _Early Law and Custom_, chap. iv, regards the
Niyoga, the levirate, and similar expedients for supplying a
male heir, as fictions, under the influence of the worship of
male ancestors, for maintaining the agnatic family. J. D. Mayne
explains the Niyoga on the theory that the lord and owner of
the wife is the lord of the child, physical paternity not being
essential; and the levirate is an extension of the Niyoga.
MCLENNAN, _op. cit._, 266-339, criticises the theories
of the two last-named writers. See also KOHLER, _Zur
Urgeschichte der Ehe_, 153; HELLWALD, _Die mensch.
Familie_, 262, 274, 470; SCHNEIDER, _Die Naturvölker_,
I, 25; II, 461; ACHELIS, _Entwicklung der Ehe_, 36 ff.;
REDSLOB, _Die Levirats-Ehe bei den Hebräern_, 1 ff.;
STARCKE, _Primitive Family_, 141-58, 159-70 (inheritance
by brothers); SPENCER, _Principles of Sociology_, I,
679-81; LETOURNEAU, _L'évolution du mariage_, chaps.
xii, xv; FISON AND HOWITT, _Kamilaroi and Kurnai_, 146,
147; WAKE, _Marriage and Kinship_, 171-78, 436 ff.;
especially WESTERMARCK, _Human Marriage_, 3, 510-14, who
cites the literature. Various examples are mentioned in _ZVR._,
III, 394-407, 419, 420; VI, 280 (Germany); VIII, 242; X, 81; XI,
237.
[256] MCLENNAN, _Studies_, I, 23, 72, 73, _passim_.
4. Wife-capture leads directly to exogamy, or the rule of not
marrying within the group of recognized kindred; that is, at first,
among those having the same totem. Exogamy is therefore not regarded
as the result of a prejudice against intermarriage of those related
by blood. For a time, doubtless, marriage within and without the
group was practiced indifferently, as pleasure or opportunity
favored. But eventually the possession of a foreign woman was
looked upon as the more honorable or respectable; and so at last
marriage within the kindred was entirely forbidden. With the rise
of wife-capture the original homogeneity of the group gave place to
a growing heterogeneity. Soon many alien stocks were represented
in the horde. Where polygyny existed, or where several wives were
taken in succession, the same family might comprise children
representing several totems. These children like their mothers were
counted as foreigners. Thus a modified form of exogamy arose. "So
far as the system of infanticide allowed, the hordes contained young
men and women accounted of different stocks, who might intermarry
consistently" with the original rule of exogamy. "Hence grew up a
system of betrothals, and of marriage by sale and purchase." But the
effect of the system of kinship through males, when it superseded
the maternal system, was to "arrest the progress of heterogeneity,"
and to "restore the original condition of affairs among exogamous
races, as regards both the practice of capturing wives and the
evolution of the forms of capture."[257]
[257] _Ibid._, I, 127-40, 50-71.
It would be ungrateful not to acknowledge freely the service which
McLennan and his adherents have rendered to the social history of
mankind. They have brought to light a mass of very important facts
which it is highly beneficial for us to know. It cannot be denied
that wife-capture, exogamy, and the custom of taking kinship from
the mother have very widely prevailed among primitive races. It
is not so certain, however, that the right explanation of their
origin or of their relation to one another has been given. In the
first place, criticism, notably that of Herbert Spencer,[258]
has detected fatal weakness and inconsistency in the argument
by which Mr. McLennan has sought to establish his theory. It is
doubtful, for instance, whether female infanticide has been so
important a factor in social evolution.[259] But, granting that
it has generally prevailed, it is hard to see how this would
greatly disturb the "balance of the sexes." For "tribes in a state
of chronic hostility are constantly losing their adult males, and
the male mortality so caused is usually considerable. Hence the
killing many female infants does not necessitate lack of women:
it may merely prevent excess." McLennan's fundamental "assumption
is therefore inadmissible."[260] Again it is held that female
infanticide, "rendering women scarce, led at once to polyandry
within the tribe, and the capturing of women from without." But
"where wife-stealing is now practiced it is commonly associated with
polygyny;"[261] while conversely, polyandry does not "distinguish
wife-stealing tribes," such as the Tasmanians, Australians,
Dakotas, and Brazilians. "Contrariwise, though it is not a trait
of peoples who rob one another of their women, it is a trait of
certain rude peoples who are habitually peaceful;" for instance,
the Eskimo, "who do not even know what war is." Furthermore, if
wife-capture and exogamy are at once practiced by a cluster of
adjacent tribes, the scarcity of women would not be relieved.
Inevitably the weaker tribes would "tend toward extinction;" and in
the meantime, if a part only of their female infants were killed,
they must deliberately "rear the remainder for the benefit" of their
enemies.[262] Nor, as Starcke has pointed out, is there anything
in a "scarcity of women which could lead a community accustomed to
promiscuous intercourse to adopt polyandry; on the contrary, such a
scarcity would make it more difficult to set limits" to promiscuity.
"Marriage, or the exclusive possession of one woman by one or more
men, would become more easy in proportion to the increase in the
number of women, since the conflict between the lusts of the men
would necessarily become less intense."[263] McLennan believes that
exogamy has "been practiced at a certain stage among every race
of mankind;" and that endogamy, or the custom of marrying within
the kindred, is a "form reached through a long series of social
developments."[264] Yet, inconsistently with this, he admits that
"the separate endogamous tribes are nearly as numerous, and they are
in some respects as rude, as the separate exogamous tribes." He goes
even farther, declaring that among a variety of tribes, belonging to
"one and the same original stock," endogamy and exogamy are found
existing side by side.[265]
[258] _Principles of Sociology_, I, 641 ff. In general for
criticism and summary of McLennan's views see MORGAN,
_Ancient Society_, 509-21; MAINE, _Early Law and
Custom_, 106 ff., 123, 124, 150, 192-228; GIRAUD-TEULON,
_Origines du mariage_, 102 ff., _passim_; SMITH,
_Kinship and Marriage_, 80, 118, 121, 129 ff., 230; FISON
AND HOWITT, _Kamilaroi and Kurnai_, 23 ff., 67, 101 ff.,
130 ff.; LUBBOCK, _Origin of Civilization_, 102,
109, 130, 143 ff., _passim_; SCHURMAN, _The Ethical
Import of Darwinism_, chap, vi; MASON, _Woman's Share
in Primitive Culture_, chap, x; STARCKE, _Primitive
Family_, 94 ff., 128 ff., 141 ff., _passim_; WAKE,
_Marriage and Kinship_, 14 ff., 58 ff., 134 ff., 253 ff.,
297 ff., _passim_; _idem_, "Primitive Family," _Jour. Anth.
Inst._, August, 1879; KAUTSKY, in _Kosmos_, XII, 258
ff.; WESTERMARCK, Index; SPENCER, _Various
Fragments_, 70 ff.; GOMME, "Primitive Human Horde,"
_Jour. Anth. Inst._, XVII, 118-33; who is criticised by
WAKE, "Primitive Human Horde," _ibid._, November, 1887,
276 ff.
[259] Such is the view of LUBBOCK, _Origin of
Civilization_, 103, 129, 134, 135; WESTERMARCK, _Human
Marriage_, 466, 472, 473, 547; FISON AND HOWITT, _op.
cit._, 133 ff., 171 ff., 190, 357; WAKE, _Marriage
and Kinship_, 75 ff. "It is not proved that the tribes which
practice child-murder put to death the female infants by
preference."--STARCKE, _op. cit._, 131 ff. Such is
also the opinion of FISON AND HOWITT, _loc. cit._;
LUBBOCK, _op. cit._, 103; DARWIN, _Descent of
Man_, II, 364, 591-93; and GIRAUD-TEULON, _op. cit._,
110-16. See also SMITH, _Kinship and Marriage in Early
Arabia_, 129, 130, 279-85; FRIEDRICHS, "Familienstufen,"
_ZVR._, X, 219-37; PLOSS, _Das Kind_, II, 243-64;
_idem_, _Das Weib_, I, 250, 251; GROSSE, _Die Formen
der Familie_, 36; SCHNEIDER, _Die Naturvölker_, I, 297
ff.; MARTIN, _Hist. de la femme_, 3 ff.; and various
examples in _ZVR._, VII, 355, 374; IX, 14 ff. (Todas); X, 122;
XI, 427 (Kamerun); BROUARDEL, _L'infanticide_ (Paris,
1897); MARSHALL, _A Phrenologist amongst the Todas_,
108 ff., 190 ff.; NELSON, "The Eskimo about Bering
Strait," in _XVIII. Rep. of Bureau of Eth._, Part I, 289;
CHAMBERLAIN, _The Child_, etc., 110 ff.
In his second series of _Studies_, 74, 111, MCLENNAN
defends his view as to the prevalence of female infanticide and
presents a mass of facts relating to it among many peoples.
FARRER, _Early Wedding Customs_, 224, denies that
infanticide is the cause of exogamy.
[260] SPENCER, _op. cit._, I, 646.
[261] _Ibid._, 646, 647. But McLennan meets this difficulty by
insisting that wife-stealing, among polyandrous peoples would
lead to polygyny on the part of the most successful. This would
also explain the inconsistency alleged by SPENCER
(648) that polygyny and polyandry sometimes coexist, as among
Fuegians, Caribo, Eskimo, Warrens, Hottentots, and the ancient
Britons. See MCLENNAN, _Studies_, I, 145, 146; and _cf._
POST, _Familienrecht_, 62.
[262] SPENCER, _op. cit._, I, 649.
[263] _Primitive Family_, 132. Other objections are brought
forward by this able writer. "It has been suggested that the
motive for the murder of female infants is the fear of becoming
the object of the predatory instincts of other tribes; whence
we must conclude that the tribe which keeps its women alive
is tolerably strong; those tribes which lack women cannot,
therefore, obtain them by violence to any great extent. It also
seems to be a strange thing to kill the female infants from a
dread of being exposed to attack, and at the same time to seek
to increase the number of women by carrying them off by violence
from other tribes."--_Ibid._, 132.
[264] SPENCER, _op. cit._, I, 644.
[265] MCLENNAN, _Studies_, I, 78-80, 124, 142-45, 147
ff.; II, 57 ff. _Cf._ his article on "Exogamy and Endogamy,"
_Fortnightly Review_, XXI, 884 ff., where he seems to waver
somewhat in his conclusions on this point.
Such are some of the results gained simply from an examination of
the reasoning of McLennan. They have been here enumerated, not
only because they afford an excellent illustration of the extreme
complexity of social problems, but also because they may warn us
against the perils of hasty speculation. It is not merely in matters
of detail that the doctrine of the horde and promiscuity has met
with resistance. Its very foundations have recently been powerfully
assaulted by the adherents of a totally different view of the origin
and development of the human family. How the phenomena of marriage
and kinship will appear when seen in a new light, we shall next try
to discover.
CHAPTER III
THEORY OF THE ORIGINAL PAIRING OR MONOGAMOUS FAMILY
[BIBLIOGRAPHICAL NOTE III.--The theory of the pairing family
is not so much the result of a reaction against the theory
of promiscuity as it is a consequence of the perception that
the problems of society can only be solved by appealing to
the laws of human life and organic evolution. Hence Starcke's
highly original _Primitive Family_ (New York, 1889), and
Westermarck's more elaborate and very able treatise on _Human
Marriage_ (London and New York, 1891), showing the influence
in some passages of Starcke's acute reasoning, may fairly be
regarded as epoch-making. Important also are Wake's _Marriage
and Kinship_ (London, 1889) and Letourneau's _L'évolution du
mariage_ (Paris, 1888), which is supplemented by his _Sociology
Based upon Ethnology_ (London, 1893). These writers have carried
farther the suggestions of Darwin, _Descent of Man_ and _Animals
and Plants under Domestication_; and Spencer, _Principles of
Sociology_ (New York, 1879), who had already thrown doubt upon
the communistic theory. A similar general conclusion is reached
in the valuable monograph of Kautsky, "Entstehung der Ehe und
Familie," in _Kosmos_, XII (Stuttgart, 1882), whose original
"hetairism" is but "defective monogamy;" and Peschel's _Races
of Man_ (London, 1889) tends in the same direction. Hildebrand
likewise rejects the communistic theory in his inaugural address
on _Das Problem einer allgemeinen Entwicklungsgeschichte des
Rechts und der Sitte_ (Graz, 1894); and this work should be read
in connection with his _Recht und Sitte auf den verschiedenen
wirthschaftlichen Kulturstufen_ (Jena, 1896). On the other hand,
Kulischer, in "Die geschlechtliche Zuchtwahl bei den Menschen in
der Urzeit," in _ZFE._, VIII, defends original communal marriage
against the views of Darwin. Of special value, likewise, for
this chapter are _Grosse, Die Formen der Familie_ (Freiburg
and Leipzig, 1896); which is favorably examined by Cunow, "Die
ökonomischen Grundlagen der Mutterherrschaft," in _Neue Zeit_,
XVI; Keane, _Ethnology_ (2d ed., Cambridge, 1896); _idem_, _Man:
Past and Present_ (Cambridge, 1899); Frerichs, _Naturgeschichte
des Menschen_ (2d ed., Norden, 1891); Bagehot, _Physics and
Politics_ (London, 1872); as are also the works of Posada,
Crawley, Lang, and Hellwald elsewhere mentioned.
For the family among the lower animals in addition to
Letourneau, Hellwald, and Westermarck, consult Brehm,
_Tierleben_ (Leipzig and Vienna, 1891); his _Bird-Life_
(London, 1874); Herman Müller, _Am Neste_ (Berlin, 1881);
Schäffle, _Bau und Leben des socialen Körpers_ (Tübingen, 1881);
Espinas, _Des sociétés animales_ (2d ed., 1878); Groos, _Die
Spiele der Thiere_ (Jena, 1896), or the English translation
(New York, 1898); and Wagner, "Die Kulturzüchtung des Menschen
gegenüber der Naturzüchtung im Tierreich," in _Kosmos_, 1886,
I. In this connection read also Houzeau, _Études sur les
facultés mentales des animaux_ (Mons, 1872); Vignoli, _Ueber
das Fundamentalgesetz des Intelligenz im Tierreiche_ (Leipzig,
1879); and Salt, _Animals' Rights_ (New York, 1894).
On the problems of sex and kinship mentioned in the text see
Geddes and Thompson, _Evolution of Sex_ (New York, n. d.);
Ellis, _Man and Woman_ (London, 1896); Finck, _Primitive Love_
(New York, 1899), vigorously attacking some of Westermarck's
theories; his _Romantic Love and Personal Beauty_ (London,
1887); Duboc, _Psychologie der Liebe_ (Hannover, 1874);
Mantegazza, _Physiologie der Liebe_ (30th ed., Berlin, 1897);
Klebs, _Verhältniss des männ. und weibl. Geschlechts in der
Natur_ (Jena, 1894); Schroeder, _Das Recht in der geschlechtl.
Ordnung_ (Berlin, 1893); Thomas, "Relations of Sex to Primitive
Social Control," and his "Difference in the Metabolism of
the Sexes," both in _Am. Journal of Sociology_, III (1898);
Sadler, _The Law of Population_ (London, 1830); Starkweather,
_The Law of Sex_ (London, 1883); Hofacker and Notter,
_Uber die Eigenschaften ... welche sich auf die Nachkommen
vererben_ (Tübingen, 1827); Ploss, _Das Weib_ (Leipzig, 1895);
also his _Ueber die das Geschlechtsverhältniss der Kinder
bedingenden Ursachen_ (Berlin, 1859); Schenk, _Einfluss auf
das Geschlechtsverhältniss_ (3d ed., Magdeburg and Vienna,
1898); the brilliant monograph of Düsing, _Die Regulierung
des Geschlechtsverhältnisses_ (Jena, 1884); Huth, _Marriage
of Near Kin_ (2d ed., 1887); Lewkowitsch, "Die Ehen zwischen
Geschwisterkindern and ihre Folgen," in _ZFE._, VIII; and
Mitchell, "Blood-Relationship in Marriage," in _Mem. of London
Anth. Society_, 1865, II, 402 ff.
Several important points are treated in Tylor's _Early
History of Mankind_ (New York, 1878); and in his _Method of
Investigating Institutions_. See also Kovalevsky, _Tableau
des origines et de l'évolution de la famille_ (Stockholm,
1890); Swinderen, _De Polygynia_ (Groningae, 1795); and for a
curiosity, read Premontval, _La monogamie_ (1751). In general,
the literature cited in Bibliographical Note II has been used,
and so need not here be described.]
I. THE PROBLEM OF PROMISCUITY
The researches of several recent writers, notably those of Starcke
and Westermarck, confirming in part and further developing the
earlier conclusions of Darwin and Spencer, have established a
probability that marriage or pairing between one man and one woman,
though the union be often transitory and the rule frequently
violated, is the typical form of sexual union from the infancy of
the human race. The problem is not yet fully worked out; but if in
the end the theory of original promiscuity must be abandoned, and
the pairing or monogamous family accepted as the primitive social
unit, it is not because of the spiritual and moral superiority of
man, as compared with other animals, but because sexual communism
as a primitive and general phase of life appears to be inconsistent
with the biological, economic, and psychological laws which have
determined the general course of organic evolution. Strongly
supported and highly probable as is the pairing or monogamic theory,
it must be clearly understood in the outset that it is still only a
theory and has not yet reached the stage of demonstration. It will
hardly do, however, to set aside the researches of its adherents
as being superficial and devoid of real scientific method; for
the champions of the opposite doctrine of primitive communism are
nothing if not daring, and their sweeping generalizations often rest
solely on comparatively few "survivals" of alleged conditions which
are absolutely "prehistoric."[266]
[266] Among the great living investigators in this field no
one, perhaps, has sinned more frequently in making hazardous
generalizations than KOHLER, who is particularly harsh
in his criticism of Westermarck, Curr, and other adversaries.
See, for example, his _Zur Urgeschichte der Ehe_, 2 ff., 150 ff.
It may be impossible to prove that there ever was a uniform
primitive state. "So long as we are within the sphere of
experience," says Starcke, "we cannot begin by assuming that there
was at any time only a single human community. Experience begins
with a plurality of communities, and the single community of which
we are in search must be found on the indeterminate boundary
between man and animals."[267] Indeed, it seems certain that if
we are ever to understand the character of the earliest forms of
human marriage and the human family, we must begin by studying the
family and marriage as they exist among other and less advanced
members of the animal world.[268] Biology, declares Letourneau,
is the starting-point of sociology.[269] In this view Starcke
coincides. "We have no reason to regard the social life of man as a
recent form. Not only do the same psychical forces which influence
gregarious man also influence the gregarious animal; probability
also leads us to infer that the primitive communities of mankind are
derived from those of animals. Since man in so many respects only
goes on to develop the previous achievements of animal experience,
it may be supposed that he made use of the social experience of
animals as the firm foundation of his higher advancement." Besides,
"there are human communities which are far less firmly established
than those of animals;" and "it may even be asserted that the
social faculty is positive in animals and negative in man," for
man is "less subservient to instinct."[270] "If we want to find
out the origin of marriage," says Westermarck, "we have to strike
into another path, the only one which can lead to the truth, but a
path which is open to him alone who regards organic nature as one
continued chain, the last and most perfect link of which is man.
For we can no more stop within the limits of our own species, when
trying to find the root of our psychical and social life, than we
can understand the physical condition of the human race without
taking into consideration that of the lower animals."[271]
[267] _Primitive Family_, 7, 8.
[268] See LETOURNEAU, _L'évolution du mariage_, chap.
ii, on "Le mariage et la famille chez les animaux;" and his
_Sociology_, 327-30, 380-82.
[269] _L'évolution du mariage_, chap. i.
[270] STARCKE, _op. cit._, 8, 9.
[271] _Human Marriage_, 9. See also _ibid._, chap. iii, on the
"Antiquity of Human Marriage."
Accordingly three principal arguments against the existence at any
time of a general state of promiscuity have been advanced:
First is the so-called zoölogical argument, based on a comparison
of the sexual habits and institutions of animals with those of
the lowest races of men. In the outset it is important to observe
that the physical differentiation of the sexes is itself a product
of the struggle for existence. This important fact is made the
starting-point of the argument by which Hellwald[272] finds the
elements of the human mother-group and of mother-right in earlier
animal experiences. Among the lowest members of the animal kingdom
there is no individual distinction of sex. That first makes its
appearance when the "artistically constructed organism, in order
to sustain itself in the process of evolution, is called upon to
perform a wider series of functions." Thus "when an animal is
forced to greater exertion, when it must work in order to exist,
when unresistingly it can no longer suffer the stream of events to
press upon it, but withstands it and seeks in it to follow its own
course, then the separation of the sexes appears, and, indeed, as a
division of labor created by nature for the purpose of developing
species." With further evolution, male and female characteristics
become more pronounced, in response to the special functions which
each sex is called upon to perform. The same process continues in
the case of man. To see in him anything other than the "highest and
foremost representative of the animal world, one must be drunk with
metaphysical nectar, and nothing is better fitted than comparative
physiology to humble one's pride in this regard." For man's entire
physical organization is "homologous to that of the higher species
of animals." Accordingly, the lower a group of men stands on the
ladder of culture, the less marked is the "bodily differentiation
of the sexes." Among various backward peoples there is relatively
slight difference in outward appearance between the men and the
women.[273] The growth of sexual variation in physical structure
keeps pace exactly with progress in civilization. This progress
depends mainly on two original forces. Of these "without doubt
the mightiest is hunger," the need of nourishment. For everywhere
on earth the "first thought and striving" of living beings is the
"stilling of hunger." Next to the struggle for food, the sexual and
pairing impulse is the most potent factor in the genesis of society.
The former influence, it is important to observe, is the more
constant and the more imperative. The latter grows and becomes more
acute with increase in refinement and the consequent development of
the nervous system.[274] It follows that in the origin of social
institutions the erotic or pairing impulse, however important, is
a less cogent genetic force than the economic necessity of a food
supply.
[272] _Die mensch. Familie_, 4 ff.
[273] Among the aborigines of New Britain, according to
POWELL, _Unter den Kannibalen von Neubritannien_, 123;
and among the Lacondou Indians of Central America, according to
CHARNAY, _Les anciennes villes du nouveau monde_, 399.
"Negro women of unmixed blood seldom have voluptuous figures, and
in anatomical structure they resemble the men in a remarkable
way, so that seen from a distance they are scarcely to be
distinguished from them. The same is true for a whole series of
low races."--HELLWALD, _op. cit._, 6.
[274] "Bedenken wir die vielen Mittel, die gerade die
Civilisation hierzu bietet, so dürfte dem befremdenden
Urteile nicht mehr zu widersprechen sein, dass bei wirklichen
Naturvölkern und unter normalen sozialen Verhältnissen der
erotische Antrieb ein beschränkterer sei, als auf höheren
Stufen der Civilisation."--LIPPERT, _Geschichte der
Familie_, 29, 30. Among the highly civilized of our own times
the nervous system is very greatly developed, and therewith the
capacity for sexual pleasure is proportionately increased; see
HELLWALD, _op. cit._, 11 ff., 128, and the literature
there cited.
The lives of the lower animals reveal a great variety of sexual
relations. The lowest form, and perhaps the most frequent, is
that of unlimited promiscuity.[275] Among the invertebrates the
preservation of the young is left almost wholly to chance. The
duties of the parents are limited mainly to the functions of
reproduction. "In the lowest classes of vertebrata, parental
care is likewise almost unheard of." It "rarely happens that both
parents jointly take care of their progeny."[276] But the chelonia,
or tortoise group, are "known to live in pairs;" and here we
reach, among animals, the first trace of the family, properly so
called. "The chelonia form, with regard to their domestic habits,
a transition to the birds, as they do also from a zoölogical and,
particularly, from an embryological point of view." Who that has
experienced the keen delight afforded by watching the domestic
habits of birds, from the building of the nest to the teaching of
the young to make the first wavering trial of its wings, cannot
bear witness to the high development of marriage and the family
among them? The great work of Brehm supplies abundant evidence of
their human-like social life.[277] "Parental affection," summarizes
Westermarck, "has reached a very high degree of development, not
only on the mother's side, but also on the father's. Male and female
help each other to build the nest, the former generally bringing the
materials, the latter doing the work. In fulfilling the numberless
duties of the breeding season both birds take a share. Incubation
rests principally with the mother, but the father, as a rule, helps
his companion, taking her place when she wants to leave the nest
for a moment, or providing her with food and protecting her from
every danger. Finally, when the duties of the breeding season are
over, and the result desired is obtained, a period with new duties
commences. During the first few days after hatching, most birds
rarely leave their young for long, and then only to procure food
for themselves and their family. In cases of great danger, both
parents bravely defend their offspring. As soon as the first period
of helplessness is over, and the young have grown somewhat, they
are carefully taught to shift for themselves; and it is only when
they are perfectly capable of so doing that they leave the nest and
the parents."[278] The bird family is usually monogamic, and the
marriage is lasting. Birds are generally faithful to the marriage
vow; and this is particularly true of the females.[279] "With the
exception of those belonging to the gallinaceous family, when
pairing," they do so "once for all till either one or the other
dies.[280] And Dr. Brehm is so filled with admiration for their
exemplary family life that he enthusiastically declares that 'real
genuine marriage can only be found among the birds.'"[281]
[275] _Ibid._, 22.
[276] WESTERMARCK, _op. cit._, 9 ff.
[277] BREHM, _Tierleben: Allgemeine Kunde des
Tierreichs_ (10 vols., Leipzig and Vienna, 1891). Vols. IV-VI are
devoted to birds. See also his _Bird-Life_ (London, 1874).
[278] WESTERMARCK, _op. cit._, 11; _cf._ BREHM,
_op. cit._, IV, 19 ff., _passim_; and HERMAN MÜLLER'S
_Am Neste_, which Brehm has used.
[279] DARWIN, _Animals and Plants under Domestication_,
II, 81, speaks of pigeons as being "true to their wedding-vow."
On polygyny and monogamy among animals see _idem_, _Descent of
Man_, 216 ff. "Many mammals and some few birds are polygamous,
but with animals belonging to the lower classes I have found no
evidence of this habit. The intellectual powers of such animals
are, perhaps, not sufficient to lead them to collect and guard a
harem of females" (216, 217). Birds sometimes lose the pairing
"instinct" under domestication (220). Regarding the "marital
virtue" of birds, see HELLWALD, _op. cit._, 30.
[280] "Abweichend von anderen Tieren leben die meisten Vögel
in geschlossener Ehe auf Lebenszeit und nur wenige von ihnen,
gleich den Säugetieren, in Vielweiberei oder richtiger
Vielehigkeit, da eine Vielweiberei einzig und allein bei den
Straussen stattzufinden scheint. Das Pärchen, welches sich einmal
vereinigte, hält während des ganzen Lebens treuinnig zusammen,
und nur ausnahmsweise geschiet es, dass einer der Gatten die
Gesetze einer geschlossenen Ehe missachtet." But since there
are more males than females, the husband often has to fight
for the retention of his wife, though in exceptional cases she
aids him in repelling the aggressor. The wife is sometimes too
ready to follow the victor, and in some cases the widow is very
easily consoled. "Vögel, deren Männchen getötet wurde, waren
schon eine halbe Stunde später wieder verehelicht; der zweite
Gespons wurde ebenfalls ein Opfer seiner Feinde: und dieselben
Weibchen nahmen ohne Bedenken flugs einen dritten Gatten an.
Die Männchen legen gewöhnlich viel tiefere Trauer um den
Verlust ihrer Gattin an den Tag, wahrscheinlich aber nur weil
es ihnen ungleich schwerer wird als den Weibchen, wieder einen
Ehegenossen zu erwerben."--BREHM, _op. cit._, IV, 20,
21. For very interesting examples of marriage and the family
among birds, see HELLWALD, _op. cit._, 26 ff., 38; and
compare WUNDT, _Menschen und Thierseele_, 448 ff.; and
ESPINAS, _Des sociétés animales_, 417 ff., 439.
[281] BREHM, _Bird-Life_, 324; WESTERMARCK,
_op. cit._, 11, 482, 502.
With the lower mammals the union of the sexes is generally of short
duration, often only for a single birth, though in several species
the parents remain together even after the arrival of the young.
But among the higher members examples of monogamic marriage are
not infrequent, such being the case with animals of prey.[282] As
a rule, the quadrumana live in pairs. Gorillas, however, are said
sometimes to be polygynous. "According to Dr. Savage, they live in
bands, and all his informants agree in the assertion that but one
adult male is seen in every band."[283] But monogamy is perhaps
most common. M. du Chaillu declares that he found "almost always
one male with one female, though sometimes the old male wanders
companionless."[284] The orang-utan and the chimpanzee, like the
gorilla, also live in families.[285] Of a truth, promiscuity is far
from universal in the pre-human stage.
[282] HELLWALD, _op. cit._, 25, 26.
[283] _Description of Troglodytes Gorilla_, 9 ff.;
WESTERMARCK, _op. cit._, 13.
[284] DU CHAILLU, _Explorations and Adventures in
Equatorial Africa_, 349; WESTERMARCK, _op. cit._, 14.
But see HELLWALD, _op. cit._, 23.
[285] _Cf._ DARWIN, _Descent of Man_, 108, 217 ff., 590,
591, who is cautious in his statement as to the rule among the
quadrumana. KAUTSKY, "Entstehung der Ehe und Familie,"
_Kosmos_, XII, 198 ff., gives some interesting illustrations of
marriage among animals; and see ESPINAS, _op. cit._, 444
ff.; ATKINSON, _Primal Law_, 219-25.
Yet it would be easy to overestimate the value of the argument based
upon the sexual relations of the lower animals. But it will not do
with Kohler and Lippert to set it aside as entirely irrelevant.[286]
Upon the precedents afforded by "anthropomorphic" species in
particular, as Hellwald justly insists, no "slight weight should be
placed;" for these are "not merely the highest organized animals,
but they must also be regarded as the nearest animal relatives of
man."[287] Indeed, the transition from the family as it exists
among the quadrumana to that of the least-developed races of man is
not abrupt, although the lowest examples of mankind yet observed
are advanced beyond the supposed primitive human stage. The broad
characteristics of the one are the characteristics of the other.
The "relations of the sexes are, as a rule, of a more or less
durable character." There is conjugal affection. The immediate care
of the children belongs to the mother. "Among mammals as well as
birds," declares Espinas, "maternal love is the corner-stone of the
family."[288] The father is the protector and provider, although
paternal love is more slowly developed. Like the male among the
lower animals, savage or barbarous man may be "rather indifferent to
the welfare of his wife and children, ... but the simplest paternal
duties are, nevertheless, universally recognized. If he does nothing
else, the father builds the habitation, and employs himself in the
chase and in war."[289]
[286] KOHLER, _Zur Urgeschichte der Ehe_, 6, 7;
LIPPERT, _Kulturgeschichte_, I, 72, 73.
[287] HELLWALD, _op. cit._, 26, 27.
[288] _Op. cit._, 444; _cf._ HELLWALD, _op. cit._, 40-42.
[289] WESTERMARCK, _op. cit._, 14-19.
HILDEBRAND, _Ueber das Problem einer allgemeinen
Entwicklungsgeschichte_, 23 ff., maintains the existence of
monogamy in what he holds to be the first culture-stage, that of
the chase. A similar result is reached by MUCKE, _Horde
und Familie_, 59 ff., _passim_: KAUTSKY, _op. cit._,
190 ff.; GROSSE, _Die Formen der Familie_, as above
summarized.
But the argument for the pre-human origin of the elements of
marriage and the family does not rest merely upon precedents of
sexual habits. It is based rather upon the entire experience of
animals in the hard struggle for existence. That struggle, as
Hellwald suggests, forced upon them primarily the problem of
food-supply, the need of a sort of economic co-operation, more
lasting in its results than the pairing instinct. It is the entire
social, mental, and moral product of animal experience, of living
together, so well described among others by Espinas, Schäffle,
Groos, and Wundt, which man in some measure inherited as a rich
legacy from his humbler predecessor.[290] Accordingly Westermarck
believes that marriage was probably "transmitted to man from some
ape-like ancestor, and that there never was a time when it did
not occur in the human race."[291] With Starcke, and in harmony
with the view of Hellwald already quoted, he holds that marriage
and the family cannot rest upon the sexual impulse alone. This
is too transitory. Among animals it is obvious that "it cannot
be the sexual instinct that keeps male and female together for
months and years," for the "generative power is restricted to a
certain season;" and it seems highly probable that among men a
pairing season prevailed in ancient times. Thus the "wild Indians
of California, belonging to the lowest races on earth," are said
to "have their rutting seasons as regularly as have the deer, the
elk, the antelope, or any other animals."[292] According to Powers,
the California Kabinapek "are extremely sensual. In the spring when
the wild clover is lush and full of blossoms and they are eating
it to a satiety after the famine of winter, they become amorous.
This season, therefore, is a literal Saint Valentine's Day with
them, as with the natural beasts and birds of the forest."[293] The
Tasmanians, the Australian Watch-an-dies, and various other peoples
appear to show evidences of the same habit.[294] Vignoli reaches a
similar conclusion. "The family union in which man originally finds
himself is not an essentially human but likewise an animal fact,
since that mode of common social life is found with the greater
part of animals and always among the higher. It is the necessity
of rearing the young which unites the parents and gives them a
common life for a shorter or longer period; indeed in some species
this marriage of love and care continues throughout their whole
existence. Hence the fact of family sociality is not an exclusive
product of humanity, but of the universal laws of the whole animal
life upon the earth. Let it not be asserted that in man affection
between the sexes and toward their offspring ... is more active,
more intense, and more lasting; for it manifests itself with equal
strength and sometime with equal duration between animals and toward
their young. Thus man loves, cohabits, and lives socially in a
primitive family community only because he is an animal and moreover
an animal higher in the organic series. So the fact of the family
is consummated according to the necessity of cosmic laws governing
a great part of the reproductive and social activity of the animal
kingdom."[295]
[290] For the social systems among animals, even insects, see
SCHÄFFLE, _Bau und Leben des socialen Körpers_, 20
ff.; WUNDT, _Menschen und Tierseele_, 369 ff., 447
ff.; GROOS, _Spiele der Thiere_, 147 ff., 162 ff., 230
ff.; and especially ESPINAS, _op. cit._, 207 ff., 274
ff., 458 ff., 543 ff. Compare HOUZEAU, _Étude sur les
facultés mentales des animaux_; and the other authors on this
subject cited in Bibliographical Note III.
[291] _Op. cit._, 20; _cf._ KEANE, _Ethnology_, 9,
taking the same view.
[292] SCHOOLCRAFT, _Indian Tribes_, IV, 224.
[293] POWERS, _Tribes of California_, 206. Similar
evidence is furnished by Corbusier: "For two years in succession
I observed that in August and September the women solicited the
attentions of the men, and an unusual number of couples were
seen with their heads hidden in a blanket caressing each other.
The majority of the children were born in the spring."--"The
Apache-Yumas and Apache-Mojaves," _Am. Antiquarian_, VIII, 330.
[294] WESTERMARCK, _op. cit._, 20, 24-38, cites the
literature. On the pairing seasons among men and animals, see
also HELLWALD, _op. cit._, 127 ff.; KULISCHER,
in _ZFE._, VIII, 149 ff.; and MUCKE, _op. cit._, 67 ff.
The pairing season appears to be the result of natural selection,
a device of nature to make sure that the young shall be born at a
time most favorable to their sustenance and survival.
[295] VIGNOLI, _Ueber das Fundamentalgesetz des
Intelligenz im Thierreiche_: translated from HELLWALD,
_Die mensch. Familie_, 42.
According to Starcke, "we are in some respects disposed to
underestimate the great influence which sexual matters exert on all
the concerns of social life, and the attempt is sometimes made to
sever it from moral life, as a matter of which we are constrained
to admit the practical existence, although, from the ideal point
of view, it ought not to be. On the other hand, its influence on
primitive communities has been greatly overrated." The sexual
instinct, however powerful, is "devoid of the conditions which form
the basis of the leading tendencies in which man's struggle for
existence must be fought out." Hence primitive marriage does not
rest upon the tender sentiment which we call love,[296] but "as
hard and dry as private life itself," it has its "origin in the
most concrete and prosaic requirements." The "common household,"
he continues, "in which each had a given work to do, and the common
interest of obtaining and rearing children were the foundations upon
which marriage was originally built."[297] Therefore, according to
this view, marriage appears to be a kind of contractual relation
from the beginning.[298] The conclusions of Westermarck on this
point are in substantial harmony with those of Starcke: "The
prolonged union of the sexes is, in some way or other, connected
with parental duties.... The tie which joins male and female is
an instinct developed through the powerful influence of natural
selection." This instinct as well as parental affection are "thus
useful mental dispositions which, in all probability, have been
acquired through the survival of the fittest." So he concludes that
"it is for the benefit of the young that male and female continue to
live together. Marriage is therefore rooted in family, rather than
family in marriage."[299] Hence it is that among many peoples "true
conjugal life does not begin before a child is born;" and there are
other races who "consider that the birth of a child out of wedlock
makes it obligatory for the parents to marry."[300]
[296] Compare the interesting chapter of HELLWALD, "Kuss
und Liebe," _op. cit._, 97-120.
[297] _Primitive Family_, 241, 242, 268, and the whole of chap.
vii, of the second division of the work, in which he gives the
results of the researches comprised in the preceding chapters.
_Cf._ DARGUN, _Mutterrecht und Vaterrecht_, 17, 18, who
favors Starcke's view as against HELLWALD, _op. cit._,
457; also LIPPERT, _Geschichte der Familie_, 118, who
takes a similar position.
[298] "The family is therefore distinguished from the family
group and the clan as a group of kinsfolk established by
contract, and only in a subsidiary sense by the tie of blood
between parents and children."--_Op. cit._, 13. With Starcke's
view compare that of Posada, who uses the suggestive word
_symbiose_ (_convivencia_) to express the totality of influences
concerned in the origin of society. He says: "En somme, d'après
tout ce qui vient d'être dit, la société humaine ne peut pas
être considérée comme ayant eu la familie pour origine. A la
force _instinctive_ du sang, au fait nécessaire et primitif de
l'union sexuelle, il faut ajouter et combiner la _symbiose_, qui
tend à devenir territoriale, et résulte du besoin fondamental de
la conservation: elle implique la coopération universelle et la
vie de relation, déterminée par le plaisir, par la sympathie,
par la nécessité de faire face aux exigences d'autres hommes;
elle implique aussi la coopération universelle, non plus de mari
à femme, ni de père à fils, mais d'homme à homme."--_Théories
modernes_, 99, 100, 96, 81 ff., _passim_.
[299] WESTERMARCK, _op. cit._, 20-22.
[300] _Ibid._, 22 ff., 379, 535. On these customs, often taken
as evidences of former promiscuity, compare LIPPERT,
_Geschichte der Familie_, 6, 7; and the examples in _ZVR._, V,
353; XI, 135, 136.
As a result of the first argument, then, marriage appears as a
fundamental institution, whose beginnings are anterior to the
dawn of human history. But there is need of a new definition,
one broad enough to satisfy the demands of science. For most
existing definitions are of a "merely juridical or ethical nature,
comprehending either what is required to make the union legal, or
what, in the eye of an idealist, the union ought to be." Hence
Westermarck defines marriage, from a scientific point of view,
as a "more or less durable connection between male and female,
lasting beyond the mere act of propagation till after the birth of
offspring;" and Starcke, in like spirit, declares that marriage in
the widest sense is "only a connection between man and woman which
is of more than momentary duration, and as long as it endures they
seek for subsistence in common."[301]
[301] WESTERMARCK, _op. cit._, 19, 20; STARCKE,
_op. cit._, 13. FRIEDRICHS, "Familienstufen und
Eheformen," _ZVR._, X, 253-56, accepts Starcke's conception
of marriage, but finds his definition inadequate. He offers
the following: "Eine von der Rechtsordnung anerkannte und
privilegirte Vereinigung geschlechtsdifferenter Personen,
entweder zur Führung eines gemeinsamen Hausstandes und
zum Geschlechtsverkehr, oder zum ausschliesslichen
Geschlechtsverkehr." _Cf._ HEUSLER, _Institutionen_,
II, 271-76, on the distinction between _Familie_ and _Sippe_.
"Die Familie des Rechtes," he says, "ist nicht ein Verband von
Blutsverwandten sondern eine Gemeinschaft der Hausgenossen;"
but the _Sippe_ (_gens_) is based on blood-relationship (271).
He combats the view of ROSIN, _Der Begriff der
Schwertmagen_, §5. Hellwald, as already seen, prefers the term
"mother-group" for the so-called primitive family; and does
not find marriage proper until the stage of property and full
"mother-right" is reached; see chap. ii.
The second or physiological argument may be very briefly stated.
It rests upon the evidence, referred to by Sir Henry Maine,
that promiscuous intercourse between the sexes "tends nowadays
to a pathological condition very unfavorable to fecundity; and
infecundity, amid perpetually belligerent savages, implies weakness
and ultimate destruction."[302] Thus Dr. Carpenter, "who visited
the West Indies before the abolition of slavery, well remembers
the efforts of the planters to form the negroes into families,
as the promiscuity into which they were liable to fall produced
infertility, and fertility had become important to the slave-owner
through the prohibition of the slave-trade."[303] Again "it is a
well-known fact that prostitutes very seldom have children, while,
according to Dr. Roubaud, those of them who marry young easily
become mothers."[304] Furthermore, as Westermarck urges, "in a
community where all the women equally belonged to all the men, the
younger and prettier ones would of course be most sought after,
and take up a position somewhat akin to that of the prostitutes of
modern society."[305] Nor is the objection, that "the practice of
polyandry prevails among several peoples without any evil results
as regards fecundity being heard of," insuperable. For "polyandry
scarcely ever implies continued promiscuous intercourse of many men
with one woman;" and where it exists the relations of the woman with
her husbands is often so regulated as to make the union practically
monogamous.[306] In this connection also should be considered the
infertility and other evils resulting from the intermarriage of near
kindred.[307] For in a state of promiscuity such unions must have
been very frequent; and at one stage of social development, if the
theory of Morgan were to be accepted, they must have constituted the
general rule.
[302] _Early Law and Custom_, 204, 205; _cf._ also
WESTERMARCK, _op. cit._, 115-17.
[303] _Early Law and Custom_, 204, 205, note.
[304] WESTERMARCK, _op. cit._, 115; MANTEGAZZA,
_Die Hygiene der Liebe_, 405; _cf._ MAINE, _op. cit._,
204.
[305] _Op. cit._, 115.
[306] _Ibid._, 115-17. Thus in Tibet but one of the husbands was
usually at home; and among the Todas betrothals are made with the
condition that each of the husbands should live with the wife a
month by turns: _ibid._, 116.
[307] See the elaborate investigation of WESTERMARCK,
_op. cit._, chaps, xiv, xv, especially 334 ff.
According to Westermarck, the strongest objection to ancient
promiscuity "is derived from the psychical nature of man and other
animals."[308] The third or psychological argument therefore
alleges the universal prevalence of sexual jealousy among the
races of men.[309] Darwin declares that this passion is found
among all male quadrupeds with which he is acquainted; and comes
to the conclusion, therefore, that "looking far enough back in the
stream of time, and judging from the social habits of man as he
now exists, the most probable view is that he aboriginally lived
in small communities, each with a single wife, or if powerful with
several, whom he jealously guarded against all other men."[310]
That jealousy is unknown among "almost all uncivilized peoples" is,
indeed, asserted by many adherents of the horde theory.[311] But a
mass of evidence relating to savage and barbarous races in all parts
of the world shows that such assertions are without foundation. In
many tribes the suspected wife is exposed to the vengeful fury of
the jealous husband. For example, among the California Indians,
according to Powers, "if a married woman is seen even walking in
the forest with another man than her husband she is chastised by
him;" and "a repetition of the offense is generally punished with
speedy death."[312] So "among the Creek 'it was formerly reckoned
adultery, if a man took a pitcher of water off a married woman's
head and drank of it.'"[313] Women, we are told, are held in little
esteem among the Innuit on the coast of Labrador; yet "the men are
very jealous," and death is often the penalty for adultery on the
part of either spouse.[314] Magalhães, who visited "more than a
hundred villages" among "thirty tribes" of Brazilian natives, some
of them "already half civilized and others still entirely free from
any participation in our institutions, ideas, and pre-conceived
notions," records as a result of his observations that "there exists
in the Indian family all grades from institutions strict to a degree
exceeding anything history tells us about down to the community of
women.... Thus I know tribes where there is no marriage, and I know
others in which a woman committing adultery is punished by being
burned."[315] Moreover, he emphatically warns us that he is speaking
here of the "uncatechised" native, not yet demoralized by missionary
influence.[316] According to Dobrizhoffer, the Abipones of Paraguay
are conspicuous for "conjugal fidelity;" and they are very jealous,
taking swift vengeance when infidelity is suspected.[317] Souza,
who "lived in Brazil, in what is now the state of Bahia, from 1570
to 1587,"[318] says that "there are always jealousies among" the
wives of the polygamous Tupinambás, especially on the part of the
first wife, because usually she is "older than the others and less
gentle."[319] On the other hand, the Jesuit Anchieta, who was in
the same country "from 1553 until his death in 1597," declares that
women frequently abandon their consorts to take other men "without
any feeling upon the part of the husbands; and I never saw and
never heard of any Indian killing any of his wives on account of
any feeling about adultery;" but his narrative reveals unmistakable
evidence of the existence of sexual jealousies.[320]
[308] _Ibid._, 117-33, 495, 551. With this passage should be read
his extremely interesting chapters on the "Courtship of Man," the
"Means of Attraction," "Liberty of Choice," "Sexual Selection
among Animals," "Sexual Selection of Man; Typical Beauty," and
the "Law of Similarity."
[309] FINCK, _Primitive Love_, 87 ff., criticises
Westermarck's view, presenting a mass of facts to prove the
absence of true jealousy among low races.
[310] _Descent of Man_, 591; _cf._ WESTERMARCK, 117;
and KAUTSKY, 194 ff. On jealousy among animals, see
HELLWALD, _Die mensch. Familie_, 23, 37.
[311] LE BON, _L'homme et les sociétés_, II,
293; WESTERMARCK, _op. cit._, 117; _cf._
GIRAUD-TEULON, _Origines du mariage_, 71.
[312] _Tribes of California_, 412.
[313] ADAIR, _History of the American Indians_, 143;
WESTERMARCK, _op. cit._, 119. _Cf._ KLEMM,
_Kulturgeschichte_, II, 80, who finds evidence in both Americas
of male jealousy among the natives.
[314] "Although the men are very jealous of the favors of their
wives, and incontinence on the part of the latter is certain
to be more or less severely punished, the male offender, if
notoriously persistent in his efforts to obtain forbidden favors,
is usually killed by the injured lover or husband." Separations
are often caused by jealousy.--TURNER, "Ethnology of
the Ungava District," _XI. Rep. Bureau of Eth._, 178, 188, 189.
_Cf._ KRAUSE, _Die Tlinkit Indianer_, 221, who says the
"betrayer of a woman, if he escapes the dagger of the offended
husband, must pay for his offense with presents. If, however, he
is a relative, he takes the position of a subordinate husband
(_Nebenmann_) and must help contribute to the support of the
woman."
[315] JOSÉ VIEIRA DE MAGALHÃES, "Familia e religião
Selvagem," in his "Ensais de Anthropologia, Região e Raças
Selvagens," published in _Revista Trimensal do Instituto
... do Brasil_, XXXVI, 108 ff. The passages quoted here and
elsewhere from Magalhães are given in the translation made
for the author by Professor J. C. Branner. The reports of
MARTIUS, _Ethnographie_, I, 112, 115, 116, 119, 120;
_idem_, _Rechtszustande_, 59, 63, 64, 66-68, seem to confirm that
of Magalhães.
[316] "I refer," he says, "to the uncatechised Indian, for the
catechised one is, as a rule, a degraded being. Whether the
system of catechising is bad, or whether in the efforts directed
especially toward making a religious man, the development of the
eminently social ideas of free labor is forgotten, or whether it
is something else, the fact is this: the catechised Indian is a
degraded man, without original customs, indifferent to everything
and consequently to his wife and almost to his family."
[317] "Of the Weddings and Marriages of the Abipones," in his
_Account of the Abipones_, II, 213. Dobrizhoffer was eight years
among this people during his stay in South America, 1749-67.
[318] I am indebted to Professor J. C. Branner for a translation
of the passages here and elsewhere quoted from Souza and
Anchieta, as also for the dates.
[319] SOUZA, "chap. clii, which treats of the manner
of marriages of the Tupinambas," in his "Tratado descriptivo do
Brazil em 1587," _Revista Inst. Hist._, XIV, 311 ff.
[320] JOSÉ D'ANCHIETA, "Informação dos Casamentos dos
Indios do Brazil," _Revista Trimensal de Hist. e Geog._, VIII,
254-62. "At most," he continues, "they beat the one guilty of
adultery if they can, and he bears it patiently, knowing what he
has done, except in case he is some great chief, and the woman
has no father or strong brothers of whom he is afraid." Then the
author relates how a "great chief," Ambirem, cruelly put a wife
to death for adultery; but this act and others of the same sort
he ascribes to the influence of the French, whom the good priest
evidently does not like.
In fact, among primitive peoples, as suggested by the preceding
examples, death or other severe punishment is often the penalty for
adultery. It is so in Polynesia, although the fault of the man is
usually "condoned;"[321] as also in Micronesia, where the husband
does not escape so easily.[322] Extraordinary precautions are
sometimes taken to prevent marriage with an impure bride. Frequently
the husband requires that the "woman he chooses for his wife shall
belong to him, not during his life-time only, but after his death."
Hence the widespread practice of sacrificing the wife at the death
of the husband; and the frequent restraint upon the remarriage of
widows is ascribed to the same cause.[323]
[321] AVERY, "Races of the Indo-Pacific Oceans," _Am.
Antiquarian_, VI, 366. The death penalty also appears in New
Zealand: RUSDEN, I, 21.
[322] WAITZ, _Anthropologie_, V, 106, 107. "When the
wife has broken the marriage vow, the husband may put her away,
returning her property; but when the man is guilty of this crime,
or has even made himself suspected of it, his fate is worse;
for then all the women of the neighborhood troop together and
fall upon the offender with his possessions, who is lucky if he
gets off with a whole skin. His landed property, his house, and
everything he has are completely destroyed. If the husband does
not bear himself humbly or friendly enough towards his wife, or
if otherwise she is no longer pleased with him, she abandons him
and goes to her parents, who then undertake the same work of
destruction. Therefore many men are not willing to marry, and
they live with paid women."
[323] For examples of all these customs read
WESTERMARCK, _op. cit._, 124 ff. On the sacrifice of
widows in India and elsewhere, explained usually as an evidence
of _patria potestas_ under influence of ancestor-worship,
consult ZIMMER, _Altindisches Leben_, 328 ff.;
KOHLER, "Indisches Ehe- und Familienrecht," _ZVR._,
III, 376 ff.; LETOURNEAU, _L'évolution du mariage_,
chap. xv; WAKE, _Marriage and Kinship_, 437 ff.;
HELLWALD, _Die mensch. Familie_, 478-80 (India), 381
(China).
As a final result of his minute examination, Westermarck concludes
that there is "not a shred of genuine evidence for the notion
that promiscuity ever formed a general stage in the social
history of mankind." The hypothesis, he declares, is "essentially
unscientific." How, then, it may be asked, can the series of
phenomena adduced by McLennan and others to support that hypothesis
be otherwise explained?
In the first place, it is believed, the direct evidence as to the
existence of races living promiscuously in ancient and modern times
will not stand the test of criticism.[324] Often the statements
of writers and travelers prove on examination to be erroneous.
Thus, for instance, Sir Edward Belcher's assertion, that among the
Andaman Islanders "the custom is for the man and woman to remain
together until the child is weaned, when they separate, and each
seeks a new partner,"[325] has been "disproved by Mr. Man, who,
after a very careful investigation of this people, says not only
that they are strictly monogamous, but that divorce is unknown, and
conjugal fidelity till death not the exception but the rule among
them."[326] Sometimes the "facts adduced are not really instances
of promiscuity." This appears to be true, as already seen, of
the alleged Australian group-marriages. So also the "communism"
practiced among the Cahyapós, "who seem to be the most numerous
tribe of the central plateaux of Brazil," turns out on examination
to be something very different from promiscuity, resembling more
the "temporary" marriages already mentioned, though combined with
polygyny. "The communism of wives among them," says Magalhães,[327]
"is as follows: The woman as soon as she reaches the age at which
she is permitted to have relations with a man, conceives by the
one who pleases her. During the period of gestation and nursing
she is maintained by the father of the child, who may have others
in similar charge and these others during similar periods live in
the same cabin. As soon as the woman begins to work she is free to
conceive by the same man or she may procure another, the charge of
supporting the earlier offspring passing to the latter."[328] This
institution, it is clear, involves considerable social regulation.
Indeed we are particularly warned that "by communism of women is not
to be understood anything like prostitution.... This distinction
is the more important for the proper comprehension of the savage
family, since it is certain that in those same tribes where this
communism exists, prostitutes are held in great displeasure." The
custom "is a mode of family existence that they judge best according
to their ideas and means of living." With it Magalhães contrasts the
"exclusiveness" of the neighboring Guatos of the river Plate, in
"Brazilian Paraguay," who are not monogamous, each man having "one,
two, or three wives according to his ability in hunting, fishing,
and the gathering of the different fruits which make up the base of
their food." The women are exceedingly modest. "If a Guato woman
brought us a fish, some game, wild fruit," or in any way sought
"something of ours that she wanted, she did it always with her eyes
fixed on the ground or turned toward her husband." The related
Chambioás of the Amazon valley are even more severe. Among them
women are burned for adultery; and in their "widows' men" they have
a curious device for the preservation of domestic peace.[329] All
these tribes "guard with great caution against, and some even punish
with death, the union of the two sexes before the complete puberty
of the woman.... Friar Francisco assured me that the virginity of
the man was strictly maintained until the epoch of his marriage,
and this was not allowed before he was twenty-five years of age,
without even this being the ordinary thing: marriage is commonly
after thirty." As a principal reason for this usage are assigned the
"force and energy of the offspring."[330]
[324] For general criticism of the hypothesis of promiscuity
compare with WESTERMARCK, _op. cit._, chaps. iv-vi,
51-133; WAKE, _op. cit._, 14-53; LETOURNEAU,
_op. cit._, 46 ff.; STARCKE, _op. cit._, 121 ff., 241
ff., _passim_; SPENCER, _Principles of Sociology_, I,
661-71, 641 ff., _passim_; GROSSE, _Die Formen der
Familie_, 41 ff.
[325] WESTERMARCK, _op. cit._, 52, 53; BELCHER,
"Notes on the Andaman Islands," _Trans. Eth. Soc._, N. S., V, 45.
[326] _Journal Anth. Inst._, XII, 135; WESTERMARCK, _op.
cit._, 57.
[327] MAGALHÃES, _op. cit._, 108 ff.
[328] Compare the somewhat analogous "communism" of the Sia:
STEVENSON, "The Sia," _XI. Rep. of Bureau of Eth._,
19-26.
[329] There are in the villages "men destined to be _viri
viduarum_. These individuals have no other duty; they are
supported by the tribe and do not, like the others, engage in the
exercises of long trips which they all make annually, each in
his turn." This indulgence was justified on the ground that "the
peace which the families enjoyed, and which they would not enjoy
without these individuals, or rather without this institution,
compensated largely for the work that fell upon the others in
supporting them."--MAGALHÃES, _loc. cit._
[330] MAGALHÃES, _loc. cit._
Savage tribes are often extremely licentious; but it is significant
that the most immoral are not always lowest in the scale of
development. Besides, it is well known that "contact with a
higher culture, or more properly, the dregs of it, is pernicious
to the morality of peoples living in a more or less primitive
condition."[331] Nor can promiscuity as a general social stage be
assumed from the existence of some tribes whose sexual relations are
but slightly restrained, since, as just seen, there are others, not
otherwise more advanced, remarkable for the chastity of the wedded
as well as the unwedded life.[332]
[331] WESTERMARCK, _op. cit._, 66 ff., where examples
are given. See the quotation from Magalhães above.
[332] _Ibid._, 61 ff.
The indirect evidence of a former stage of unrestricted sexual
relations, based on the existence of certain customs assumed
to be its survival, particularly female kinship, exogamy, and
polyandry, turns out on examination to be even less convincing than
that obtained from direct observation. Primitive man is usually
influenced by extremely simple motives; and the great fault of
speculation has been the assignment of remote and complex causes for
phenomena which are often capable of easier explanation. "The most
important features of the life of a community," Starcke observes,
"are due to forces at once simple and universal."[333]
[333] _Primitive Family_, 9; _ibid._, 30. STARCKE is
conspicuous for the simple causes which he assigns for the
various phenomena connected with marriage and the family. See
examples, _op. cit._, 43, 49, 50, 106.
II. THE PROBLEM OF MOTHER-RIGHT
Such is the case with attempts to account for kinship in the female
line. McLennan thinks it "inconceivable" that it can be due to any
cause other than uncertainty of fatherhood; and he holds therefore
that it must have preceded the paternal system.[334] Careful
research, however, has shown that these assumptions are far from
axiomatic. In the first place, the acute criticism of Friedrichs
is deserving of special attention. Among a number of low races
where relationship with the begetter is not recognized he finds
that certainty of fatherhood through securing the fidelity of the
wife nevertheless exists. The number is small, but a single certain
example, he insists, is sufficient to refute McLennan's hypothesis.
Such an example is provided by Semper[335] in the case of the people
of the Palau Islands; and it is all the more convincing because
here it is only the wife who is prohibited from general sexual
intercourse, while young girls may give free play to their desires,
and in a measure this is not merely suffered, but even enjoined by
social custom.[336] Indeed, savages know well how to secure chastity
on the part of their women by such "naïve arts" as infibulation,
so realistically described by Ploss in his well-known book on
woman.[337]
[334] _Studies_, I, 88, 83-146; _Patriarchal Theory_, chap.
xiii. In general, on kinship in the female line, compare
HELLWALD, _Die mensch. Familie_, 124, 150 ff., 239,
456-58; LIPPERT, _Die Geschichte der Familie_, 4 ff., 8
ff.; _Kulturgeschichte_, II, 90 ff., _passim_; DARGUN,
Mutterrecht und Raubehe, 1 ff., 13, 17; _Mutterrecht und
Vaterrecht_, 1 ff., 43 ff.; GIRAUD-TEULON, _Origines_,
131 ff.; POST, _Geschlechtsg._, 88 ff., 94 ff.;
_Familienrecht_, 7 ff.; _Ursprung_, 37 ff.; _Anfänge_, 10
ff.; _Afrikanische Jurisprudenz_, I, 13 ff.; KOHLER,
_Zur Urgeschichte der Ehe_, 53 ff.; KOVALEVSKY,
_Tableau_, 7 ff.; TYLOR, _On a Method_, 252 ff.;
WILKEN, _Das Matriarchat_, 3 ff.; SMITH,
_Kinship and Marriage_, 131 ff., 151 ff.; LUBBOCK,
_Origin of Civilization_, 149 ff.; MORGAN, _Ancient
Society_, 63 ff., 153-83, 344 ff. All the foregoing writers
sustain in the main McLennan's and Bachofen's principal
assumptions. On the other hand, they are rejected or criticised
by SPENCER, _Principles of Sociology_, I, 665 ff.;
WAKE, _Marriage and Kinship_, chaps. viii, ix, x;
BERNHÖFT, in _ZVR._, VIII, 4 ff.; MAINE,
_Early Law and Custom_, chap, vii; FRIEDRICHS, in
_ZVR._, VIII, 370-83; X, 189 ff.; SCHURMAN, _Ethical
Import of Darwinism_, 223; STARCKE, _Primitive
Family_, 1-120; WESTERMARCK, _Human Marriage_, 96-113.
HILDEBRAND, _Ueber das Problem_, 28-31, holds that
the earlier mother-right gave place to the paternal system
under influence of property. See also LETOURNEAU,
_L'évolution_, 424, 377 ff., who believes that the maternal
system is more archaic, but does not imply promiscuity;
MUCKE, _Horde und Familie_, 114 ff., _passim_; and
KAUTSKY, _Entstehung der Ehe_, 256 ff., 338 ff.,
who holds that the systems were independently developed;
GROSSE, _Die Formen der Familie_, 48 ff., 61, who
believes it possible that the two systems may have been worked
out side by side and that they are not necessarily successive
phases of development.
[335] _Palauinseln_ (1873), 320, 119, 181; KOHLER, in
_ZVR._, VI, 327.
[336] FRIEDRICHS, "Ueber den Ursprung des Matriarchats,"
_ZVR._, VIII, 374, 375.
[337] _Das Weib_, I, 172 ff., 179 ff. See also his _Das Kind_, I,
383 ff.; and compare FRIEDRICHS, _op. cit._, 375, 376;
HELLWALD, _op. cit._, 343.
While not denying that uncertainty of fatherhood may have been
influential in some cases, Spencer argues that without this
assumption it is perfectly natural that the child should be named
from the mother with whom it spends its early life; and where
exogamy prevails the custom would become a convenient rule for
determining who are marriageable women within the group; for the
"requirement that a wife shall be taken from a foreign tribe readily
becomes confounded with the requirement that a wife shall be of
foreign blood."[338]
[338] _Principles of Sociology_, I, 665, 666.
Westermarck seeks a simple explanation of female kinship in the
necessary relations of a child with its mother. "Especially among
savages, the tie between a mother and a child is much stronger than
that which binds a child to the father. Not only has she given birth
to it, but she has also for years been seen carrying it about at
her breast. Moreover, in cases of separation, occurring frequently
at lower stages of civilization, the infant children always follow
the mother, and so, very often, do the children more advanced in
years."[339] Polygyny has doubtless favored the choice of the
female line of descent;[340] and the odd custom of the couvade,
found here and there among rude peoples, instead of being a mark
of transition to the paternal system, only implies some connection
or "some idea of relationship" between father and child;[341] and
accordingly simpler and more probable reasons for its origin have
been assigned.[342] Thus it may take its rise in the notion of a
mysterious physical connection between the father and the child.
"The well-being of the child is its object." The father occupies the
so-called lying-in bed, not as a bed of sickness "affording rest
and strength after travail," but he abstains from certain foods
lest they should injure the child, and he fasts in order that his
powers of endurance may be assured to it.[343] This view is strongly
supported by the fact that among many primitive peoples, in various
stages of advancement, the belief is found that the child springs
from the father alone, the mother merely performing the function
of nourishment.[344] Finally Westermarck's generalization as to
the real import of kinship through females only may be noted. The
"facts adduced as examples" of this system, he declares, "imply
chiefly that children are named after their mothers, not after their
fathers, and that property and rank succeed exclusively in the
female line."[345]
[339] WESTERMARCK, _op. cit._, 107-13; _cf._
LUBBOCK, _Origin of Civilization_, 149 ff.
[340] WESTERMARCK, _op. cit._, 108; STARCKE,
_op. cit._, 27, 28, 35, 36, 40, 41, 69 n. 4, citing
WINTERBOTTOM, _An Account of the Native Africans in the
Neighborhood of Sierra Leone_. _Cf._, however, DARGUN,
_Mutterrecht und Vaterrecht_, 59 ff.
[341] WESTERMARCK, _op. cit._, 106, 107, 17.
[342] In the couvade the father occupies the erroneously
so-called lying-in bed; is nursed and otherwise cared for as
if he were the mother: while he rigidly fasts or abstains
from certain kinds of food. GIRAUD-TEULON, _Origines
du mariage_, 138; BACHOFEN, _Mutterrecht_, 17, 255,
419; LETOURNEAU, _L'évolution du mariage_, 394-98;
BERNHÖFT, in _ZVR._, IX, 417; and LUBBOCK,
_Origin of Civilization_, 14 ff., 159, regard the couvade as
a mark of transition. Such, in effect, is also the view of
LIPPERT, _Kulturgeschichte_, II, 312; _Geschichte
der Familie_, 213 ff., who believes the custom is a form of
redemption-sacrifice rendered by the father instead of the
actual sacrifice of the first-born child, a sacrifice exacted
in the stage of earlier mother-right. HELLWALD, _Die
mensch. Familie_, 361 ff., accepts the theory of Lippert. On the
other hand, TYLOR, _Early History of Mankind_, chap,
x, 297 ff.; STARCKE, _Primitive Family_, 51, 52, 283,
284; and DARGUN, _Mutterrecht und Vaterrecht_, 18-26,
hold that it takes its rise in a supposed physical connection
between father and child, and therefore that it exists for the
welfare of the child alone. LUBBOCK, _op. cit._, 14 ff.,
emphasizes this fact, while regarding the practice as an evidence
of transition. TYLOR, however, in his _Method of
Investigating Institutions_, 254-56, accepts the view of Bachofen
and Giraud-Teulon, relegating the explanation first assigned by
him to a secondary place. ROTH, "On the Significance
of the Couvade," _Jour. Anth. Inst._, XXII, 204-44, holds the
custom to be a form of magic or witchcraft, resting on the belief
in a physical connection between the father and child, and so
implying power over the child. According to CRAWLEY,
_Mystic Rose_, 416-28, the custom has its origin in sexual taboo.
It is a case of "substitution." The father simulates the mother
so that by exposing himself to the same danger he may help her
and the child against the magical or evil influences which are
especially harmful in the great sexual crises of human life.
_Cf._ KOHLER, "Das Recht der Azteken," _ZVR._, XI, 49;
MÜLLER, _Chips from a German Workshop_, II, 281, 278;
PLOSS, _Das Kind_, I, 143-53; MUCKE, _Horde
und Familie_, 219 ff.; FRIEDRICHS, in _Ausland_ (1890),
801, 837, 856, 877, 895; CHAMBERLAIN, _The Child and
Childhood in Folk-Thought_, 124, 125.
[343] STARCKE, _op. cit._, 52. See the preceding note;
also LIPPERT, _Geschichte der Familie_, 213 ff., who
criticises the use of the term "lying-in bed."
[344] FUSTEL DE COULANGES, _Ancient City_, 47, 70,
_passim_; see further, WESTERMARCK, _op. cit._,
107, 108; HOWITT, _Smithsonian Report_ (1883), 813;
MAINE, _Early Law and Custom_, 203; WILKINSON,
_Ancient Egyptians_, I, 320.
[345] _Human Marriage_, 97. He insists on the powerful influence
of names on the roles of succession: _ibid._, 111.
Starcke has devoted the first half of his book to a detailed
investigation of the problem of female descent, and comes to the
conclusion that it depends mainly on local and economic causes.
He first shows that the clan is of later origin than the family;
and holds that these are by nature very different institutions.
The family is juridical, established by contract, and only "in a
subsidiary sense" founded on the "tie of blood between parents
and children;" but the clan is a natural and homogeneous group of
kindred among whom degrees of relationship are not counted. It is an
exclusive group into which the child is born; and "it is absolutely
impossible for one person to belong to two distinct clans."[346]
In the primitive stage, before the formation of clans, the family
must always be a more or less isolated group. The man usually
chooses the place of abode, and hence paternal kinship may be easily
recognized. A considerable number of rude peoples exist who take
kinship from the father;[347] and Starcke is inclined to believe,
though he presents rather slender evidence, that as a general rule
the paternal precedes the maternal system. With the rise of the clan
organization, it became absolutely necessary for the local groups to
take one system or the other. So the "definition of kinship results
from the conflict between clans, and teaches us nothing further with
respect to the child's relation to its parent. The choice between
the two possible lines is decided by the economic organization of
the community and by the local grouping of individuals, but there is
not the slightest trace of the fact that considerations with respect
to the sexual relations had any influence in the matter."[348]
[346] STARCKE, _op. cit._, 10-16, 25.
[347] _Ibid._, 26, 27, 30, 58 ff., 101; WESTERMARCK,
_op. cit._, 98 ff.
[348] STARCKE, _op. cit._, 118; _cf. ibid._, 54.
FRIEDRICHS agrees with Starcke on the essential point.
The uterine system arises with the formation of families and
_gentes_. In a very primitive state, the natural means of
subsistence sufficing, the children leave the parents and look
out for themselves; as it becomes more and more difficult
to find food and shelter, family groups are formed, and the
children remain a longer time with the mother. Hence naturally
the name and kinship are taken from her: "Ueber den Ursprung
des Matriarchats," _ZVR._, VIII, 378 ff. Compare _idem_,
"Familienstufen und Eheformen," _ibid._, X, 197 ff., 201.
DARGUN, _Mutterrecht und Vaterrecht_, 43-66, discusses
the original mother-right, but rejects Starcke's theory of
local causes, accepting uncertainty of fatherhood as a primary
influence. Starcke is also criticised by HELLWALD, _Die
mensch. Familie_, 456-58, 465, 484 ff.
Starcke's opinion that such rules of succession depend on local
connections, those persons being each other's heirs "who dwell
together in one place,"[349] seems to gain some support from the
result of Dr. Tylor's examination of the so-called "beena"[350]
marriage form, which requires the man to live in the family of his
wife, usually serving for her as did Jacob for Laban's daughters.
It is remarkable that this custom and the maternal system of kinship
are commonly found together. "Thus the number of coincidences
between peoples where the husband lives with the wife's family
and where the maternal system prevails, is naturally large in
proportion, while the full maternal system as naturally never
appears among peoples whose exclusive custom is for the husband to
take his wife to his own home."[351] Furthermore, adds Westermarck,
"where both customs--the woman receiving her husband in her own
hut, and the man taking his wife to his--occur side by side among
the same people, descent in the former cases is traced through the
mother, in the latter through the father."[352]
[349] _Op. cit._, 36, _passim_; summarized by
WESTERMARCK, _op. cit._, 110.
[350] See above, p. 16, on "beena" marriage.
[351] TYLOR, _On a Method of Investigating the
Development of Institutions_, 258. _Cf._ WESTERMARCK,
_op. cit._, 109; also STARCKE, _op. cit._, 79, 80, who
regards serving as a form of wife-purchase, and the migration
of the husband as "due to the great cohesive power of the
several families, which causes them to refuse to part with any
of their members." Among various American peoples it is the
custom for the husband to take up his abode permanently in the
wife's family: SOUZA, "Tratado descriptivo do Brazil,"
_Revista Inst. Hist._, XIV, 311 ff.; STEVENSON, "The
Sia," _XI. Rep. of Bureau of Eth._, 20, 22; or temporarily:
DOBRIZHOFFER, _Account of Abipones_, II, 208, 209;
POWELL, "Wyandotte Society," in _A. A. A. S._, XXIX,
681; MACCAULEY, "Seminole Indians," _V. Rep. of Bureau
of Eth._, 496; MCGEE, "The Seri Indians," _XVII. Rep. of
Bureau of Eth._, 280.
[352] WESTERMARCK, _op. cit._, 110. Compare
SMITH, _Kinship and Marriage_, 74 ff.;
MCLENNAN, _Studies_, I, 101 ff.; and MARSDEN,
_History of Sumatra_, 225.
It seems certain that the whole truth regarding the problems of
kinship, as well as regarding the rise and sequence of the forms
of the family, can be reached only through a thorough historical
investigation of the industrial habits of mankind. In fact, the
position of Starcke, that the rise of rules of descent and kinship
depends mainly on economic and local causes, is strengthened in
a remarkable way by the researches of Grosse, which have already
been presented in outline. Nowhere does promiscuity appear among
the peoples known to history or ethnology; and everywhere, even
among the "lower hunters," comprising the most backward members
of the human kind, appears the single family in which the man
holds the place of power, which is often despotic. There is no
definite sequence between the maternal and the paternal systems.
The existence of either depends upon favorable economic conditions;
and they may both appear side by side. In fact, according to
Cunow, among the lower hunters, with the single exception of
the Australians, the custom of female descent has not yet been
discovered; and even in Australia it is precisely the most advanced
tribes among which the maternal system appears. It first arises when
women are sought outside of the original horde, in order to prevent
intermarriage of maternal kindred.[353]
[353] See CUNOW, "Die ökonomischen Grundlagen der
Mutterherrschaft," _Neue Zeit_ (1897-98), XVI, 115, 113, 14,
reviewing and supplementing GROSSE'S _Die Formen der
Familie_, summarized above. The investigations of Hildebrand,
elsewhere mentioned, tend in the same direction.
In the light of present research, therefore, the most that can
safely be admitted concerning the system of kinship through females
only is that it has widely existed among the races of mankind;[354]
although, as elsewhere shown, its prevalence has been greatly
exaggerated. Partially under the influence of monogamy and the rise
of modern forms of property, it has often been superseded by the
parental and sometimes by the agnatic system, although this sequence
is by no means invariable. It is very archaic, yet not necessarily
primitive. There is no satisfactory evidence that it implies an
original stage of promiscuity. It is not impossible, in view of the
facts disclosed by Starcke, that sometimes it may be preceded by a
custom in which the child is named from the father, and rank and
property descend in the male line; while there is evidence that in
the lower hunting stage, before rules of descent were yet subjects
of reflection, a kind of patriarchate or androcracy generally
prevailed.[355]
[354] LETOURNEAU, _L'évolution du mariage_, 424, thus
concludes his investigation of the question of kinship: "Ce
qui est vraisemblable, c'est que, dans la majorité des cas, la
filiation paternelle a succédé à la filiation maternelle et à
des formes familiales plus ou moins confuses." _Cf. ibid._,
399, 400. MAX MÜLLER, _Biographies of Words_, p. xvii,
thinks that "we can neither assert nor deny that in unknown
times the Aryans ever passed through a metrocratic stage." _Cf._
WESTERMARCK, _op. cit._, 104, 113.
[355] "Among the lower hunters there is no matriarchate, but--if
indeed one may make the distinction--only a patriarchate or
rather an androcracy (_Mannesherrschaft_). Even in those
Australian tribes where the custom of maternal succession
exists, the woman follows the man into his horde and becomes
his property. Their children remain in his horde, and not she
but he has the disposition of the offspring.... This primitive
patriarchate, of course, has nothing to do with that of the later
patriarchal family. It is not based on any reflection regarding
descent or the man's share in procreation; it rests simply on the
right of the stronger, on the rude physical superiority of man,
his position as winner of the greater share of the food and as
protector" of the family community.--CUNOW, _op. cit._,
115, 116.
III. THE PROBLEM OF EXOGAMY
The case is much the same with the problem of exogamy, which is
closely connected with the question of kinship. According to
McLennan, as already seen, exogamy, or the prohibition of marriage
within the clan, owes its rise to wife-capture occasioned by
scarcity of women through female infanticide; and it is contrasted
with the opposite custom of endogamy, which, it is alleged, usually
implies a higher stage of civilization. This account of its
origin, he thinks, is, on the whole, the "only one which will bear
examination."
How far it really falls short of the truth was first pointed out
by Herbert Spencer. "In all times and places, among savage and
civilized," he says, "victory is followed by pillage. Whatever
portable things of worth the conquerors find, they take.... The
taking of women is manifestly but a part of this process of spoiling
the vanquished. Women are prized as wives, as concubines, as
drudges; and, the men having been killed, the women are carried
off along with the other moveables." Thus "women-stealing" is an
"incident of successful war." But a woman so taken has a double
value. "Beyond her intrinsic value she has an extrinsic value. Like
a native wife, she serves as a slave: but unlike a native wife,
she serves also as a trophy." A warrior possessing such a token
of prowess gains social distinction. "In a tribe not habitually
at war, or not habitually successful in war, no decided effect is
likely to be produced on the marriage customs." But in warlike and
successful tribes an "increasing ambition to get foreign wives"
will arise. Among savages, proofs of courage are often required as
qualifications for marriage. Hence it is not surprising that the
abduction of a foreign woman should be accepted as the best proof of
all. "What more natural than that where many warriors of the tribe
are distinguished by stolen wives, the stealing of a wife should
become the required proof of fitness to have one? Hence would follow
a peremptory law of exogamy." Spencer's interpretation, therefore,
agrees with that of McLennan in finding the origin of exogamy in
wife-capture and in implying that usage grows into law. But it
does not, "like his, assume either that this usage originated in a
primordial instinct, or that it resulted from a scarcity of women
caused by infanticide.[356] Moreover, unlike Mr. McLennan's, the
explanation so reached is consistent with the fact that exogamy and
endogamy in many cases co-exist; and with the fact that exogamy
often co-exists with polygyny;" nor does it "involve us in the
difficulty raised by supposing a peremptory law of exogamy to be
obeyed throughout a cluster of tribes." For if exogamy would be
likely to arise in tribes usually successful in war, peaceful tribes
and those usually worsted in war, though living side by side with
the successful and warlike, would be naturally led to adopt the rule
of endogamy. Furthermore, among tribes not differing much from one
another in strength, endogamy and exogamy may coexist. "Stealing of
wives will not be reprobated, because the tribes robbed are not too
strong to be defied; and it will not be insisted on, because the men
who have stolen wives will not be numerous enough to determine the
average opinion." Spencer also maintains that the symbol of rape
in the marriage ceremony does not necessarily imply the previous
existence either of foreign wife-stealing or of exogamy, assigning
three other reasons which singly or together may account for it.
First, it may result from a struggle for women within the tribe.
"There still exist rude tribes in which men fight for possession
of women, the taking possession of a woman naturally comes as a
sequence to an act of capture. That monopoly which constitutes her
a wife in the only sense known by the primitive man is a result of
successful violence."[357] Secondly, contrary to the view of Sir
John Lubbock,[358] the symbol of rape may be due to the struggle
of the bride and her female friends, many manifestations of which
are found in the marriage customs of primitive races; though the
dread of harsh treatment is thought to be an additional motive. But
Starcke, doubting whether among savages there is much to choose
between the brutality of the husband and that of the father, thinks
the weeping of the woman merely symbolizes her sorrow "on leaving
her former home; her close dependence on her family is expressed by
her lamentation." The existence of such symbols is not surprising in
"communities of which the family bond is the alpha and omega."[359]
The ceremony of capture, finally, may be due to the resistance of
the father and other male friends of the bride. A woman has an
economic value, "not only as a wife but also as a daughter; and all
through, from the lowest to the highest stages of social progress,
we find a tacit or avowed claim to her service by her father."
Her service is an object of purchase; and in English law "we have
evidence that it was originally so among ourselves: in an action for
seduction the deprivation of a daughter's services is the injury
alleged."[360]
[356] SPENCER, _Principles of Sociology_, I, 649-52.
It should be noted that McLennan really ascribes the origin of
exogamy to wife-capture, though, inadvertently seemingly, in one
passage he refers it to a "primitive instinct."
[357] See STARCKE, _op. cit._, 217, who thinks Spencer
inconsistent with his own theory; for "if the rape of women can
be practised within the tribe, it need no longer be assumed that
a young man's ambition impels him to take a wife from another
tribe."
[358] _Origin of Civilization_, 111, 130.
[359] STARCKE, _op. cit._, 217, 218.
[360] SPENCER, _op. cit._, I, 652-60. Spencer is
criticised by WESTERMARCK, _op. cit._, 311 ff.;
STARCKE, _op. cit._, 215 ff.
Sir John Lubbock is likewise an adherent of the view that exogamy
originates in wife-capture; but he connects his explanation with
his peculiar theory of the communistic family, and it cannot
therefore be accepted, if that theory is to be rejected.[361] He
holds that originally all the men and women of a tribe lived in
sexual communism and individual marriage was looked upon "as an
infringement of communal right." But "if a man captured a woman
belonging to another tribe he thereby acquired an individual and
peculiar right to her, and she became his exclusively." In this
way, the practice of capturing foreign wives led to individual
marriage, and its evident advantages eventually produced the rule of
exogamy. Accordingly, the "symbol of rape became such an important
part of the wedding ceremonies, because it was the symbol of giving
up the woman to become the exclusive possession of one man."[362]
McLennan, however, criticises this view on the ground that "in
almost all cases the form of capture is the symbol of a group
act--of a siege, or a pitched battle, or an invasion of a house by
an armed band." Seldom does it represent a capture by an individual.
"On the one side are the kindred of the husband; on the other the
kindred of the wife." Furthermore, if women were commonly captured
by the men of a group or parties of them, as he justly observes,
it is hard to see how an individual who had captured a woman could
appropriate her more easily than he could appropriate any woman of
his own group for whom he had a fancy.[363] Very different is the
explanation offered by Tylor, who regards exogamy as the primitive
mode of alliance and "political self-preservation." "Among tribes
of low culture there is but one means known of keeping up permanent
alliance, and that means is intermarriage." Often the alternative
has been "marrying out" or "being killed out." Endogamy, on the
other hand, "is a policy of isolation, cutting off a horde or
village, even from the parent stock whence it separated."[364] That
exogamy has often, perhaps generally, served the political purpose
suggested by Tylor is not improbable, and his view is sustained by
that of Post and Kohler;[365] but this will not account for its
origin.
[361] LUBBOCK, _op. cit._, 86, 98, 103, 104-43. _Cf._
the criticism of STARCKE, _op. cit._, 220, 221;
WESTERMARCK, _op. cit._, 316; MCLENNAN,
_Studies_, I, 329-47.
[362] STARCKE, _op. cit._, 220; LUBBOCK, _op.
cit._, 109 ff.
[363] MCLENNAN, _op. cit._, I, 344, 345, 329 ff.
[364] _On a Method of Investigating the Development of
Institutions_, 267, 268; _cf._ WESTERMARCK, _op. cit._,
316, 317.
[365] KOHLER, "Indisches Ehe- und Familienrecht,"
_ZVR._, III, 360-62; POST, _Familienrecht_, 79, 83.
TYLOR, _op. cit._, 365, 366, denies that capture and
exogamy are related as cause and effect.
Both Lubbock and Spencer, it will be observed, agree with McLennan
in assigning the origin of exogamy to wife-capture. On the other
hand, a group of writers, differing widely on ancillary questions,
unite in identifying the causes which have produced exogamy with
those which, in general, have led to the establishment of forbidden
degrees of consanguinity in marriage. In other words, tribal or
clan exogamy is but one of many rules for the prevention of close
intermarriage between kindred. It must be admitted that a profound
horror of incest is now "an almost universal characteristic of
mankind, the cases which seem to indicate a perfect absence of
this feeling being so exceedingly rare that they must be regarded
merely as anomalous aberrations from a general rule."[366] But,
from the beginning, has there been an innate aversion to the sexual
union of persons closely related by blood? Is that aversion derived
from experience of the injurious results of such unions? Did it
originally extend only to marriage and not to irregular sexual
connections? Or, finally, is it the indirect result of a custom,
such as wife-capture, hardening into a rule of forbidden degrees?
These are questions to which very different answers have been given.
[366] WESTERMARCK, _op. cit._, 290.
Adherents of the horde theory, of course, deny that horror of
incest is a primitive instinct. Such is the view also of Spencer,
who thinks that "regular relations of the sexes are results of
evolution, and that the sentiments upholding them have been
gradually established,"[367] though--somewhat inconsistently, as
we have seen--he agrees with McLennan in regarding exogamy as
the result of custom growing into law. Lubbock takes a similar
position, denying that we can "attribute to savages any such
farsighted ideas" as the recognition of the injurious effects
of close intermarriage.[368] On the other hand, Morgan, whose
consanguine family implies the absence of any primitive abhorrence
of incest, considers exogamy "explainable, and only explainable
as a reformatory movement to break up the intermarriage of blood
relations," thus implying that the aversion to such a union is
derived from experience.[369] But knowledge which "can only
be gained by lengthened observation," Dr. Peschel believes,
"is 'unattainable by unsettled and childishly heedless races,'
among whom, nevertheless, a horror of incest is developed most
strongly."[370] Sir Henry Maine, on the contrary, "cannot see
why the men who discovered the use of fire and selected the wild
forms of certain animals for domestication and of vegetables
for cultivation should not find out that children of unsound
constitution were born of nearly related parents."[371] The
researches of Starcke, and still more those of Westermarck, render
it almost certain, however, that Morgan and Maine are mistaken in
their view, though it may point the way to the truth.[372]
[367] SPENCER, _op. cit._, I, 636 ff.
[368] LUBBOCK, _op. cit._, 133.
[369] MORGAN, _Proceedings of the American Academy of
Arts and Sciences_, VII, 469; _Ancient Society_, 69, 424 ff.;
_cf._ STARCKE, _op. cit._, 323; WESTERMARCK,
_op. cit._, 317.
[370] PESCHEL, _Races of Man_, 224;
WESTERMARCK, _op. cit._, 317, 318; also
DARWIN, _Animals and Plants under Domestication_, II,
124; LUBBOCK, "Customs of Marriage and Systems of
Relationship among the Australians," _Jour. Anth. Inst._, XIV,
300.
[371] MAINE, _Early Law and Custom_, 228.
[372] DARWIN, _op. cit._, II, 103, 104, accepts
HUTH'S view (_Marriage of Near Kin_), that there is
no "instinctive feeling in man against incest any more than in
gregarious animals."
Starcke's argument leads up to the conclusion that the basis of
exogamy is to be sought in the causes which produced the clan;
for between the clans of a tribe exogamy almost always prevails,
and, without exception, clanless tribes are "endogamous or at
least not exogamous." Furthermore, tribes divided into clans are
usually endogamous as to the tribe.[373] Now, prohibitions are
found which cannot be due to "exogamy as a definition of the clan;"
such is the prohibition of marriage between mother and son where
agnation is in force, and "between father and daughter where the
uterine line prevails." Since, therefore, "exogamy as a definition
of the clan cannot directly produce these prohibitions, which
are found wherever exogamy occurs, and in some instances where
it is absent," the inference follows that exogamy must have its
origin in the abhorrence of close intermarriage and the ideas to
which that is due. But these ideas are not necessarily the same
as those underlying "the various prohibited degrees of marriage
which are now in force;" nor do they imply that the injuriousness
of such unions is the ground of the aversion. "In a community in
which marriage takes place between consumptive and syphilitic
persons, and those affected by hereditary disease, without being
condemned by public opinion, and still less by the law, it cannot
be said that the condemnation of incest is founded on our regard
for posterity."[374] In harmony with his view that marriage is
juridical, not founded on sexual relations, he finds the origin of
the horror of marriage between near kindred in the legal incongruity
of such unions and in their danger to the peculiar constitution of
the ancient family itself. Marriage between a brother and sister
or between a mother and son would usually be impossible because
the "son possesses nothing which he could offer to the father as
purchase-money." To accomplish the purpose by force would be an
"unheard-of crime among savages." A connection between a father
and daughter would seldom occur, "since a father is unwilling to
renounce the advantages of bestowing his daughter in marriage."[375]
"If in this way an impression arises that there is something unusual
and incompatible with other ideas in marriage between such persons,
an occasional calamity which befalls any of them will be enough to
excite the imaginative faculty in the highest degree; and if no
prohibition previously existed, the absolute condemnation of such
marriages would then be pronounced." In a word, "the intermarriage
of individuals of the same family implies that persons who have no
legal right to dispose of themselves and their property nevertheless
agree upon such legal disposition, an encroachment which would
certainly be violently opposed by primitive men." In the same
way, exogamy will arise between clans; and the co-existence of
endogamy and exogamy seems to be consistently explained by this
theory. "Exogamy prohibits marriage between persons who are so
nearly related that they have no legal independence of each other;
endogamy prohibits the marriage of persons whose legal status is
too remote from each other."[376] In corroboration of his view,
Starcke finds evidence that, here and there, a distinction is
made between regular marriage and sexual intercourse, the former
being forbidden, unless for special reasons, while the latter is
allowed.[377]
[373] This is the view of MORGAN, _Ancient Society_,
512-14; also of MAINE, _op. cit._, 221 ff.; FISON
AND HOWITT, _Kamilaroi and Kurnai_, 117, 138 ff.;
WESTERMARCK, _op. cit._, 363.
[374] STARCKE, _op. cit._, 212, 223, 224.
[375] In this part of his argument Starcke's generalizations
are scarcely sustained by the evidence. See the criticism of
CUNOW, _Australneger_, 180-84, who urges the well-known
fact that many of the lowest peoples are not acquainted with
wife-purchase at all; and even where wife-purchase exists, it
might seem to be of as much advantage to a father to marry his
daughter to her brother as, for instance, to allow the son to
obtain a wife by offering his sister in exchange.
[376] STARCKE, _op. cit._, 233, 229, 230.
[377] _Ibid._, 227, 228.
If Starcke's explanation of the origin of the dread of close
intermarriage between kindred is too vague and ill supported by
definite proof, his original suggestion that exogamy must take its
rise in that horror is sustained and placed on a broader foundation
by the singularly interesting researches of Westermarck[378]--a
scholar who has rendered to social science a very important service
by carrying the principles of organic evolution into the sphere of
domestic institutions. He starts with the assertion that horror of
incest is universal. Writers have, indeed, collected evidence which
they believe points to a time when such an aversion did not exist.
Thus marriage with a sister is permitted in Ceylon and Annam; in
the royal families of Siam, Burma, and the Sandwich Islands; while
the same custom prevailed, as is well known, among the Ptolemies of
Egypt, and among the kings of ancient Persia.[379] But these unions
are either "anomalous aberrations" from the general rule; or else
they are allowed in order to preserve the purity of caste or the
royal blood; or, in case of half-sisters, because relationship is
traced in one line only;[380] while occasionally they may result
from "extreme isolation" or from "vitiated instincts."[381]
Everywhere prohibitions exist, though they vary greatly in the
"degrees of kinship within which union is forbidden." As a rule,
"among peoples unaffected by modern civilization the prohibited
degrees are more numerous than in advanced communities, the
prohibitions in a great many cases referring even to all the members
of the tribe or clan."
[378] WESTERMARCK, _op. cit._, chaps. xiv, xv, xvi,
290-382. These chapters should be read in the light of the
results obtained in those on "Law of Similarity," the "Means of
Attraction," "Sexual Selection," and the "Liberty of Choice."
[379] For the evidence of incestuous marriages, see
WESTERMARCK, _op. cit._, 292 ff., 331 ff.;
STARCKE, _op. cit._, 44, 209 ff.; SPENCER,
_Principles of Sociology_, I, 636; GIRAUD-TEULON,
_Origines_, 60 ff.
[380] This may perhaps explain why half-sisters and half-brothers
may marry among the Todas where relationship is in the male line:
MARSHALL, _A Phrenologist amongst the Todas_, 206, 221.
For instance, to select a few examples from the wealth of
illustration provided by Westermarck, the "Californian Gualala
account it 'poison,' as they say, for a person to marry a cousin
or an avuncular relation, and strictly observe in marriage the
Mosaic table of prohibited affinities."[382] Among the "Bogos of
Eastern Africa, persons related within the seventh degree may not
intermarry, whether the relationship be on the paternal or maternal
side;" and a similar rule exists among the Pipiles of San Salvador.
"Among the Kalmucks, no man can marry a relation on the father's
side; and so deeply rooted is this custom among them, that a Kalmuck
proverb says, 'The great folk and dogs know no relationship,'
alluding to the fact that only a prince may marry a relative." Often
clan exogamy is enforced by the severest penalties. "The Algonquins
tell of cases where men, for breaking this rule, have been put to
death by their nearest kinsfolk."[383]
[381] Here and there among low races one finds examples of
alleged incest recorded. Thus among the New England Indians
marriages between brothers and sisters are said to have existed:
WAITZ, _Anthropologie_, III, 106. "Among these people
only," says Turner of the Innuit on the Labrador coast, "have
I heard of a son who took his mother as a wife, and when the
sentiment of the community compelled him to discard her he took
two other women, who were so persecuted by the mother that they
believed themselves to be wholly under her influence." "Ethnology
of the Ungava District," _XI. Rep. of Bureau of Eth._, 180. So
also D'EVREUX suspects incest, not marriage, between
brothers and sisters among the Brazilian Indians: _Voyage
dans le Nord du Brésil, 1613-14_, 85-95. On the other hand,
DOBRIZHOFFER says the Abipones abhor marriage with near
kindred: _Relation_, II, 212; and the same appears to be true of
the Kafirs: RATZEL, _History of Mankind_, II, 435. See
also the examples mentioned by GROSSE, _Die Formen der
Familie_, 129, 130.
[382] WESTERMARCK, _op. cit._, 297; POWERS,
_Tribes of California_, 192.
[383] WESTERMARCK, _op. cit._, 297, 305, 306.
Westermarck next takes up the origin of prohibited degrees; and
after a critical examination of the various theories to explain
it, he comes to the conclusion that in no case observed is the
prohibition of incest founded on conscious experience of its
injurious effects. It has not come into existence as the result of
observation or calculation or through education on the part of the
savage. Law and custom might thus arise; and these may "prevent
passion from passing into action, they cannot wholly destroy its
inward power." The home is kept pure "neither by laws, nor by
customs, nor by education, but by an _instinct_ which under normal
circumstances makes sexual love between the nearest kin a psychical
impossibility." But this instinct is not an "_innate_ aversion to
marriage with _near relations_." It is rather an "innate aversion to
sexual intercourse between persons living very closely together from
early youth;" and "as such persons are in most cases related, this
feeling displays itself chiefly as a horror of intercourse between
near kin." It is not "by the degrees of consanguinity, but by the
close living together that prohibitory laws against intermarriage
are determined."[384]
[384] _Ibid._, 318, 320, 321. WAKE, _Marriage and
Kinship_, 55, 56, expresses a similar view.
This theory, it will be noticed, coincides with that of Starcke in
selecting local contiguity or the intimate association of family
life as the fundamental fact. It differs, however, in several
important particulars. The economic or legal motives are not
emphasized; and Westermarck's explanation is broader than Starcke's,
for he holds that the aversion extends to sexual connections outside
of regular marriage.
It is impossible here to do more than indicate the character of the
evidence by which Westermarck powerfully supports his conclusion.
Among the Greenlanders, for instance, "it would be reckoned uncouth
and blamable, if a lad and a girl, who had served and been
educated in one family, desired to be married to one another."
It is even "preferred that the contracting parties should belong
to different settlements."[385] Among the Kandhs, according to
Colonel Macpherson, "marriage cannot take place even with strangers
who have been long adopted into, or domesticated with, a tribe;"
and the Cis-Natalian Kafirs are reputed to "dislike marriage
between persons who live very closely together, whether related or
not."[386] Further proof is derived from the fact that "many peoples
have a rule of exogamy, which does not depend on kinship at all."
Piedrahita, in the seventeenth century, "relates of the Panches of
Bogota that the men and women of one town did not intermarry, as
they held themselves to be brothers and sisters, and the impediment
of kinship was sacred to them; but such was their ignorance that, if
a sister were born in a different town from her brother, he was not
prevented from marrying her."[387] So also the "Yaméos, on the river
Amazon, will not suffer an intermarriage between members of the
same community 'as being friends in blood, though no real affinity
between them can be proved;'" and the Uaupés, of the same region,
"do not often marry with relations, or even neighbours, preferring
those from a distance, or even from other tribes."[388]
[385] WESTERMARCK, _op. cit._, 321, citing
EGEDE, _Description of Greenland_, 141; NANSEN,
_The First Crossing of Greenland_, II, 330.
[386] WESTERMARCK, _op. cit._, 321, citing
MACPHERSON, _Memorials of Service in India_, 69.
[387] TYLOR, _On a Method of Investigating the
Development of Institutions_, 268; PIEDRAHITA, _Historia
general_ (1688), 11; WESTERMARCK, _op. cit._, 321.
[388] _Ibid._, 322; WALLACE, _Travels on the Amazon_,
497.
The great variation in the extent of prohibited degrees found among
nations is "nearly connected with their close living together."
Savage and barbarous peoples, "if they have not remained in the
most primitive social condition of man, live, not in separate
families, but in large households or communities, all the members
of which dwell in very close contact with each other." Such are
the house-communities of the American aborigines, found everywhere,
from the "long houses" of the Iroquois to the vast pueblos or
"cities" of Mexico and Yucatan;[389] the "joint undivided families"
of the Hindus and Southern Slavs;[390] and the _trevs_ or clan
households of ancient Wales, comprising four generations living in
one inclosure, whose members are forbidden to intermarry.[391] It is
significant that in all such cases we find extended prohibitions of
close intermarriage, which do not exist "where the family lives more
separately." In fact, there is a marked tendency, amounting almost
to a law, that the larger the family or clan group, the wider is the
circle of forbidden degrees; and, on the contrary, the more isolated
and dispersed the manner of life, the greater is the liberty of
matrimonial choice.[392]
[389] MORGAN, _Houses and House-Life of the American
Aborigines_; FISKE, _Discovery of America_, I, 64 ff.;
WESTERMARCK, _op. cit._, 324.
[390] MAINE, _Early History of Institutions_, 7, 78,
106, 195, 200, _passim_; _Early Law and Custom_, chap, viii;
KRAUSS, _Sitte und Brauch der Südslaven_, 14, 64,
72, 79 ff., 84, etc.; KOHLER, "Indisches Ehe- und
Familienrecht," _ZVR._, III, 362; _cf._ LYALL, _Asiatic
Studies_, chap. vii.
[391] LEWIS, _Ancient Laws of Wales_, 56, 57, 196.
[392] _Westermarck_, _op. cit._, 323-28.
In the same way prohibition of marriage on the ground of "affinity"
or "spiritual relationship" may take place. "By association of
ideas" the "feeling that two persons are intimately connected in
some way" may "give rise to the notion that marriage or intercourse
between them is incestuous." A strong argument is also derived from
the "classificatory system of consanguinity." Tylor has shown that
this system and the system of exogamy are, in most cases, found
together. They are the "two sides of one institution."[393]
[393] TYLOR, _On a Method of Investigating
the Development of Institutions_, 261 ff.; _cf._
WESTERMARCK, _op. cit._, 328, 329.
But a deeper and still more interesting question remains: "How
has this instinctive aversion to marriage between persons living
closely together originated?" We cannot help feeling that through
his masterly solution of this difficult problem Westermarck has at
last brought us very near to the truth. He finds the key to it in
the biological law of similarity.[394] It is demonstrated that a
"certain degree of similarity as regards the reproductive system
of two individuals is required to make their union fertile and the
progeny resulting from this union fully capable of propagation."
But the similarity must not be _too_ close. A certain amount
of differentiation is requisite; but the differentiation must
not be too great.[395] There must be homogeneity combined with
heterogeneity. Among domestic animals close interbreeding, it is
well known, leads to infertility and degeneration; and Darwin's
researches prove that self-fertilization in the vegetable kingdom
produces the same results.[396] There is abundant evidence tending
to show that what is true of plants and the lower animals is true
also of man. "Taking all these facts into consideration," says
Westermarck, in closing his argument, "I cannot but believe that
consanguineous marriages, in some way or other, are more or less
detrimental to the species. And here, I think, we may find a quite
sufficient explanation of the horror of incest; not because man
at an early stage recognized the injurious influence of close
intermarriage, but because the law of natural selection must
inevitably have operated. Among the ancestors of man, as among other
animals, there was no doubt a time when blood-relationship was no
bar to sexual intercourse. But variations, here as elsewhere, would
naturally present themselves; and those of our ancestors who avoided
in-and-in breeding would survive, while the others would gradually
decay and ultimately perish. Thus an instinct would be developed
which would be powerful enough, as a rule, to prevent injurious
unions. Of course it would display itself simply as an aversion
on the part of individuals to union with others with whom they
lived; but these, as a matter of fact, would be blood-relations, so
that the result would be the survival of the fittest. Whether man
inherited the feeling from the predecessors from whom he sprang, or
whether it was developed after the evolution of distinctly human
qualities, we do not know."[397]
[394] WESTERMARCK, _op. cit._, chap, xiii, and compare
chap, xv, 334 ff.
[395] On sterility as the result of crossing in species, see
WALLACE, _Darwinism_, 152-86; DARWIN, _Animals
and Plants under Domestication_, II, 78 ff.; and on the good
effects of crossing and the evil effects of close interbreeding,
_ibid._, II, 92-126, 104. _Cf._ QUATERFAGES, _The
Human Species_, 85-88 (crossing species), 276-86 (effects of
crossing in mixed races); MITCHELL, "Blood-Relationship
in Marriage," in _Memoirs of London Anth. Society_, 1865, II,
402-56; and WITHINGTON, _Consanguineous Marriages_, 2
ff., who believes the injurious effects of such unions on the
offspring have been overestimated. On the other hand, it has
been maintained that under primitive conditions the advantages
of close intermarriage may have outweighed all disadvantages:
_Mucke_, _Horde und Familie_, 245-47, combating Westermarck's
view.
[396] DARWIN, _Effects of Cross and Self-Fertilization
in the Vegetable Kingdom_, 436.
[397] CUNOW, _Australneger_, 184 ff., rejects
Westermarck's theory, first, on the ground that the prohibition
of intermarriage in the cases cited often extends far beyond the
local group; and secondly, because where the members of a _gens_
do not at the same time form a local community, marriage is not
forbidden in the group of persons actually living together. But
Westermarck is dealing with origins; and he does not mean to
say that all the existing complex systems of kinship which have
gradually been developed through association of ideas or other
influences actually now conform to the principle for which he
contends. On the other hand HELLWALD, _Die mensch.
Familie_, 178 ff., following WAGNER, in _Kosmos_, 1886,
I, 21, 24-34, reaches a conclusion essentially like that obtained
by Westermarck. He finds the origin of exogamy in a dread of
close intermarriage producing a horror of incest. During the
period of the endogamous mother-group such marriages were the
rule. With the rise of fixed habitations for the group, beginning
in the glacial age and carried farther in the diluvial period,
came more permanent sexual relations, the prototype of real
marriage. This close living together, because of its deadening
effect on sexual attraction, produced a dislike of unions in the
group, leading to exogamy, often accompanied by wife-capture;
although neither rape nor exogamy must be regarded as a universal
stage of social evolution. CRAWLEY, _Mystic Rose_, 222,
223, 443 ff., rejects Westermarck's theory of a general human
"instinct" against inbreeding. He insists that neither incest
nor promiscuity was "ever anything but the rarest exception
in any stage of human culture, even the earliest; the former
being prevented by the psychological difficulty with which
love comes into play between persons either closely associated
or strictly separated before the age of puberty, a difficulty
enhanced by the ideas of sexual taboo, which are intensified in
the closeness of the family circle, where practical as well as
religious considerations cause parents to prevent any dangerous
connections." Westermarck's theory, he holds, does not account
for all the facts; for example, "that to no little extent
brothers and sisters, mothers and sons, fathers and daughters,
do _not_ live together. This is a result of sexual taboo, and
is originally a part of the cause why such marriage is avoided,
and not a result of avoidance of incest." In short, it "is
the application of sexual taboo to brothers and sisters, who,
because they are of opposite sexes, of the same generation, and
are in close contact, and for no other reasons, are regarded as
potentially marriageable, that is the foundation of exogamy and
the marriage system." _Cf._ LANG, _Social Origins_,
10-34, 238-40 note, whose criticism of Westermarck and McLennan
follows similar lines; and ATKINSON, _Primal Law_,
209-40, who believes that jealousy may have set up a bar to
sexual unions within the "fire-circle" before totems or the idea
of incest arose.
Exogamy appears, then, to be the result of natural selection,
arising "when single families united in small hordes. It could
not but grow up if the idea of union between persons intimately
associated with one another was an object of innate repugnance."
Conversely, the law of similarity enables us to understand the
coexistence of clan-exogamy and tribal endogamy. The one springs
from a horror of sexual union between persons who are too near; the
other arises in a dislike of connection between those who are too
remote. Among primitive men, and sometimes even among those well
advanced in civilization, there exists a shrinking from physical
contact with strange races only less violent than the aversion
which the dread of incest excites. But this prejudice yields to
the sympathy produced by the growing similarity of interests,
ideas, sentiments, and general culture among men. Sympathy, upon
which affection mainly depends, has widened the sphere of sexual
selection.[398]
[398] Consult the very interesting chapter of
WESTERMARCK on "Selection as Influenced by Affection and
Sympathy, and by Calculation," _op. cit._, 356 ff. "Affection
depends in a very high degree upon sympathy. Though distinct
aptitudes, these two classes of emotions are most intimately
connected: affection is strengthened by sympathy, and sympathy
is strengthened by affection.... If love is excited by contrast,
it is so only within certain limits. The contrast must not be so
great as to exclude sympathy."--_Ibid._, 362. "Civilization,"
he adds, "has narrowed the inner limit, within which a man or
woman must not marry;" while "it has widened the outer limit
within which a man or woman _may_ marry and generally marries.
The latter of these processes has been one of vast importance in
man's history."--_Ibid._, 376.
IV. THE PROBLEM OF THE SUCCESSIVE FORMS OF THE FAMILY
From the preceding analysis it will appear, we trust, that
scientific examination of the problems of kinship and exogamy has
disclosed something of the real origin of the laws which govern
human sexual relations. The searching criticism to which the theory
of polyandry has been subjected, in connection with the opposite
custom of polygyny, carries us still nearer the truth. For, in
the light of recent research, it does not seem entirely hopeless
to discover a trace of the actual sequence in which, according to
natural law, the general forms of marriage and the family have been
evolved.
According to McLennan, it will be remembered, polyandry originates
in a scarcity of women due to female infanticide; and it is a
universal phase of social progress through which transition is made
from promiscuity and the system of kinship in the female line to
the paternal system and higher types of family life. Furthermore,
he seems to think, though on this point he is not very clear,[399]
that polygyny may grow out of polyandry through the practice of
capturing wives. This theory has by no means gone unchallenged.[400]
It has been shown, in the first place, that the extent to which the
custom of polyandry has prevailed is greatly exaggerated. Though
it is found among various peoples in different parts of the world,
its occurrence is on the whole comparatively rare; and the practice
is much less extended than that of polygyny. Its former existence
cannot be inferred from such customs as the niyoga and the levirate;
for these are capable of simpler explanation.[401] It is highly
probable, as Starcke urges, that they are merely expedients for
procuring an heir or for conveniently regulating the succession
to property and authority,[402] particularly in the joint family;
but there is no good reason to doubt that Spencer's explanation is
adequate in some cases. "Under early social systems," he declares,
"wives, being regarded as property," are inherited like other
possessions.[403] The procuring of an heir through a brother or
some other third person harmonizes with the "juridical character of
fatherhood among primitive men."[404]
[399] MCLENNAN, _Studies_, I, 116, _passim_; _cf._
SPENCER, _Principles of Sociology_, I, 679.
[400] See, especially, WESTERMARCK, _op. cit._,
chaps. xx-xxiii; STARCKE, _Primitive Family_, 128-70;
WAKE, _Marriage and Kinship_, chaps. v, vi, vii; and
compare HELLWALD, _Die mensch. Familie_, 241 ff. For the
literature of polyandry, see p. 80, n. 2, above.
[401] For the literature relating to the levirate and similar
customs, see above p. 84, n. 2.
[402] This may be the explanation of the levirate among the
Todas: MARSHALL, _A Phrenologist amongst the Todas_,
206-9, 213. Similar practical motives influenced the rise of
the levirate elsewhere: DORSEY, "Omaha Sociology,"
_III. Rep. of Bureau of Eth._, 258; _cf._ MARTIUS,
_Ethnographie_, 117, notes; _idem_, _Rechtszustande_, 64.
[403] SPENCER, _Principles of Sociology_, I, 679-81,
748 ff., 750. See, however, the criticism of STARCKE,
_op. cit._, 151-53, 159 ff.; and compare WESTERMARCK,
_op. cit._, 510 ff.; MCLENNAN, _Studies_, I, 108
ff.; _Fortnightly Review_ (1877), 701; and SPENCER'S
"Short Rejoinder," _ibid._, 897. But elsewhere Spencer thinks
the levirate may arise in the duty of caring for the brother's
children--a general cause of polygyny: _op. cit._, 691, 692. For
examples of inheritance of widows, see KOHLER, "Das
Recht der Azteken," _ZVR._, XI, 54; "Das Negerrecht, namentlich
in Kamerun," _ibid._, XI, 416, 423; and for widower inheritance
among the Chins, _idem_, _ibid._, 186 ff.
[404] STARCKE, _op. cit._, 141 ff. For his theory of
juridical fatherhood see _ibid._, 121-27, 135, 139; and compare
the similar view of WAKE, _Marriage and Kinship_, 78
ff. This author gives an interesting discussion of the case of
Boaz and Ruth, _op. cit._, 172-78, which may be compared with
MCLENNAN, _Studies_, I, 109 n. 3. On the evidence for
juridical fatherhood among the Arabs, consult SMITH,
_Kinship and Marriage_, 119, 120.
Again, not only is the general extent of polyandry limited, but even
where it exists it is confined in almost every case "to a very small
part of the population."[405] It is sometimes restricted to the
poorer classes, sometimes to the rich; and nearly always it is found
side by side with polygyny or monogamy. There is another limitation,
already noticed, which tells very strongly against the theory of its
origin in promiscuity. Polyandry usually shows a tendency in the
direction of monogamy. Sometimes each of the husbands lives with
the wife during a certain period, while the others are absent; or
frequently, "as one, usually the first married, wife in polygynous
families is the chief wife;" so also, "one, usually the first,
husband in polyandrous families is the chief husband." In him
authority and the property are vested, and all the children, even,
are feigned to be his.[406]
[405] WESTERMARCK, _op. cit._, 455-57.
[406] _Ibid._, 457-59, 113-17; _cf._ especially STARCKE,
_op. cit._, 135. HELLWALD, _Die mensch. Familie_, 264
ff., gives many interesting details.
In opposition to the theory of McLennan various explanations
of the origin of polyandry have been advanced. Spencer regards
both polygyny and polyandry as mere limitations of promiscuity.
"Promiscuity may be called indefinite polyandry joined with
indefinite polygyny; and one mode of advance is by diminution of
the indefiniteness." Polyandry, therefore, does not originate in
scarcity of women; nor can it be due to poverty; "though poverty
may, in some cases, be the cause of its continuance and spread." It
is rather one of several independent "types of marital relations
emerging from the primitive unregulated state; and one which has
survived where competing forms, not favored by the conditions, have
failed to extinguish it."[407] Hellwald holds a similar view.[408]
Robertson Smith traces its origin to the practice of capturing or
of purchasing wives in common by a group of kinsmen; and in the
case of purchase, poverty or the high price of women must have
exerted a favorable influence.[409] Not entirely dissimilar is the
view of Wake who, rejecting the hypothesis of McLennan, believes
that polyandry can be satisfactorily explained "only as being
established, under the pressure of poverty, either independently
or as an offshoot from the phase of punaluan group marriage in
which several brothers have their wives in common."[410] Starcke
in like manner finds that it "is adapted in every respect to this
organization of the joint family group." In its highest forms "it
is only the eldest brother who is married," and "the younger ones
are not husbands, but merely specially authorized lovers. There
is nothing to indicate that the band of brothers, as such, take a
wife in common; that is, that the marriage is the act of the whole
community." Hence "polyandry belongs to the category of facts which
have to do with the ordinary family communism;" and it does not
forfeit its character of a marriage in which the individual does not
quite lose his personality in the group.[411]
[407] SPENCER, _Principles of Sociology_, I, 673-75,
678, 679. Insufficient food-supply may cause polygynic and
monogamic families to die out; and it is favorable to the
survival of the polyandrous family. But the infertility of
polyandrous families is unfavorable to their survival, for there
are fewer members available for defense.--_Ibid._, 681.
[408] Polyandry is favored by poverty and scarcity of women;
but it is essentially the outgrowth of ancient sexual
relations: HELLWALD, _op. cit._, 258-61; agreeing with
LIPPERT, _Kulturgeschichte_, II, 10. MARSHALL,
_A Phrenologist amongst the Todas_, 223 ff., follows Lubbock and
McLennan in regarding polyandry as a survival of communism. On
the other hand, FRITSCH, _Die Eingeborenen Süd-Afrikas_,
227, is decidedly of the opinion that polyandry among the
Kafir Herero is the direct result of poverty and low condition
(_niedrige Gesinnung_); it is, he says, "keine Sitte, sondern
eine Unsitte," harmonizing with the laxity of their moral ideas.
[409] SMITH, _Kinship and Marriage_, 125 ff., 128.
[410] WAKE, _Marriage and Kinship_, 172, 134-78.
[411] STARCKE, _op. cit._, 135, 139, 128-70.
More satisfactory, from a scientific point of view, is the result
of Westermarck's inquiry. This is so, not only because we feel that
he is probably right in his conclusion, but because his argument
affords an excellent illustration of the success with which the
statistical method may be applied to social questions. The way for
a solution of the problem had been prepared by McLennan and his
critics. They had established a strong probability that poverty and
scarcity of women are in some intimate way connected with polyandry.
Westermarck shows that there is, in fact, a close relation, but that
relation is a consequence of natural selection. The ultimate causes
of polyandry, he demonstrates, are identical with the forces which
have produced a numerical disparity between the sexes.[412] First
of all the assumption[413] that "monogamy is the natural form of
human marriage because there is an almost equal number of men and
women," is proved to be untenable by an appeal to the statistics of
population, which reveal a considerable variation in the numerical
proportion of the sexes. Among many peoples the men are greatly
in majority; among others there is a corresponding surplus of
women. This disparity is in part easily explainable by referring
to the varying conditions of life among different peoples. The
"preponderance of women," for instance, "depends to a great extent
upon the higher mortality of men" due chiefly to the "destructive
influence of war" and the other dangers and hardships to which
primitive men are exposed. On the other hand, the surplus of men
may, in some degree, be ascribed to female infanticide and, still
more, to the severe labor and harsh treatment which usually fall to
the lot of women among low races.[414]
[412] WESTERMARCK, _op. cit._, chap. xxi, in connection
with chaps. xx and xxii.
[413] Thus LORD KAMES, _Sketches of the History of
Man_, I, 277 ff., declares "polygyny to be an infringement of
the law of nature, basing his opinion on the false assumption
that, 'in all countries and at all times,' males and females are
equal in number, and supporting it by the consideration that the
'God of nature has enforced conjugal society, not only by making
it agreeable, but by the principle of chastity inherent in our
nature.'"--WAKE, _op. cit._, 198 ff., who shows this
assumption to be unfounded.
[414] The facts are collected by WESTERMARCK, with
elaborate reference to authorities: _op. cit._, 460-66.
But such causes are by no means entirely adequate to account for
the numerical inequality of the sexes. For, in the second place,
statistics show a considerable disparity between them at birth.
"Among some peoples more boys are born, among others more girls; and
the surplus is often considerable." With the Todas, for instance,
are found about 100 boys to 80 girls under fourteen years of
age;[415] while in Mesopotamia, Armenia, Syria, the Arabias, the
Holy Land, and in various other portions of Asia, two, three, or
even four women to one man are born.[416] "In Europe, the average
male births outnumber the female by about five per cent.... But the
rate varies in different countries. Thus, in Russian Poland, only
101 boys are born to 100 girls; whilst, in Roumania and Greece, the
proportion is 111 to 100."[417]
[415] MARSHALL, _A Phrenologist amongst the Todas_, 100;
WESTERMARCK, _op. cit._, 467.
[416] BRUCE, _Travels to Discover the Sources of the
Nile_, I, 284 ff.; WESTERMARCK, _op. cit._, 467, 468.
[417] OETTINGEN, _Moralstatistik in ihrer Bedeutung für
eine Socialethik_, 55; WESTERMARCK, _op. cit._, 469.
DARWIN, _Descent of Man_, chap, viii, discusses the
numerical proportion of the sexes, showing their inequality.
_Cf._ PLOSS, _Das Weib_, I, 244-46, giving a table of
the number of male and female births for European countries and
for several of the commonwealths of the United States, the male
predominating.
At this point Westermarck finds it necessary to consider the
problem of the "causes which determine the sex of the offspring."
The view that sex is influenced either by the relative or by
the absolute age of the parents is untenable;[418] nor can the
theory be accepted that "polygyny leads to the birth of a greater
proportion of female infants."[419] The theory of Düsing, however,
must be regarded as the most probable explanation which has yet
been advanced.[420] According to him, "the characters of animals
and plants which influence the formation of sex are due to natural
selection. In every species the proportion between the sexes has a
tendency to keep constant, but the organisms are so well adapted to
the conditions of life that, under anomalous circumstances, they
produce more individuals of that sex of which there is the greatest
need. When nourishment is abundant, strengthened reproduction is
an advantage to the species, whereas the reverse is the case when
nourishment is scarce. Hence--the power of multiplication depending
chiefly upon the number of females--organisms, when unusually well
nourished, produce comparatively more female offspring; in the
opposite case, more male."[421] The observations of Ploss[422]
and others[423] appear to sustain Düsing's hypothesis. Wherever
nourishment is scarce there seems to be a surplus of male births.
Such is the case in highlands as compared with lowlands; among the
poor as compared with the rich; in sterile regions as compared with
those that are more fertile. Furthermore, Düsing has suggested
a second cause due also to natural selection, which influences
the numerical proportion of the sexes born; and his conclusion
is confirmed by the researches of Westermarck. Mixture of race
among animals and plants appears to cause a surplus of female
births;[424] while, on the contrary, incestuous unions, being
injurious to the species, "have a tendency to produce an excess of
male offspring."[425] So, among half-breeds, the number of girls
usually predominates;[426] while among in-and-in bred plants,
animals, or men the reverse is the case. Hence it seems probable
"that the degree of differentiation in the sexual elements of the
parents exercises some influence upon the sex of the offspring,
so that, when the differentiation is unusually great, the births
are in favour of females; when it is unusually small, in favour of
males."[427]
[418] Thus, according to SADLER, _The Law of
Population_, II, 333 ff., and HOFACKER AND NOTTER,
_Ueber die Eigenschaften welche sich bei Menschen und Thieren
von den Eltern auf die Nachkommen vererben_, "more boys are born
if the husband is older than the wife, more girls if the wife
is older than the husband." But Noirot and Breslau have reached
the opposite result; and Berner, from Norwegian statistics, has
shown that "the law is untenable." From the registers of births
in Alsace-Lorraine, STIEDA, _Das Sexualverhältniss der
Geborenen_, proves "that neither the relative nor the absolute
ages of the parents exercise this sort of influence." Platter
"concludes from the examination of thirty million births that the
less the difference in the age of the parents the greater is the
probability of boys being born." For these authorities and others
see WESTERMARCK, _op. cit._, 469, 470; and compare
THOMPSON AND GEDDES, _Evolution of Sex_, 32 ff., for a
review of theories, particularly the comparative table, p. 35,
and the bibliography, p. 40.
[419] The authorities are compared by WESTERMARCK,
_op. cit._, 470; and there is an interesting discussion of
this point by WAKE, _Marriage and Kinship_, 223 ff.
_Cf._ DARWIN, _Descent of Man_, chap. viii, 215 ff.
PLOSS, _Das Weib_, I, 239-44, gives a comparative view
of the notions of various peoples as to the knowledge of sex
before the birth of the child.
[420] DÜSING, _Die Regulierung des
Geschlechtsverhältnisses bei der Vermehrung der Menschen, Tiere,
und Pflanzen_ (Jena, 1884), 121-237.
[421] As summarized by WESTERMARCK, _op. cit._, 470, 471.
[422] PLOSS, _Ueber die das Geschlechtsverhältniss der
Kinder bedingenden Ursachen_, 21 ff., 30, _passim_.
[423] Compare GEDDES AND THOMPSON, _Evolution of Sex_,
32-54, who discuss the literature relating to sex-determination;
and GEDDES, article "Sex" in _Encycl. Brit._ See the
bibliographies of the subject in GEDDES AND THOMPSON,
_op. cit._, 40, 53, 54. MARSHALL, _A Phrenologist
amongst the Todas_, 110, 111, regards the tendency to produce
more males than females as due to natural selection, practiced by
an in-and-in breeding people, made necessary originally by female
infanticide. Thus a "male-producing variety of man is formed."
[424] Consistent with the rule is the fact that the majority of
illegitimate births are female.
[425] DÜSING, _op. cit._, 237.
[426] POWERS, _Tribes of California_, 403,
149; STARCKWEATHER, _The Law of Sex_, 159 ff.;
WESTERMARCK, _op. cit._, 476-80, who cites many other
authorities.
[427] _Ibid._, 481, 482.
Now, it is a significant fact that polyandrous peoples show a
tendency to close intermarriage among kindred; while polyandrous
countries are notoriously poor. "The Todas of the Neilgherry Hills,"
for instance, "are probably the most in-and-in bred people of whom
anything is known," and among them "the disproportion between male
and female births is strikingly in favour of the males." But the
"coincidence of polyandry with poverty of material resources" cannot
depend, as often asserted, "upon the intention of the people to
check an increase of population, or upon the fact that the men are
not rich enough to support or buy wives for themselves." For only
in Tibet, with her nunneries, among such peoples, is there found
a class of unmarried women, and polyandry is often seen in rich
families; while in Ceylon "it prevails chiefly among the wealthier
classes." With pastoral and agricultural peoples poverty would be
no reason for the avoidance of individual marriage, since women are
valuable for their labor and "fully earn their own subsistence." In
some districts of the Himalayas, we are told, "it is the poor who
prefer polygamy, on account of the value of the women as household
drudges."[428]
[428] WESTERMARCK, _op. cit._, 475, 476, citing
STULPNAGEL, in _Indian Antiquary_, VII, 135. _Cf._
SPENCER, _Principles of Sociology_, I, 688.
Accordingly as a general result of his argument, Westermarck
concludes that there is some reason to believe that polyandry
originates in a surplus of men "due, on the one hand, to poor
conditions of life, on the other, to close inter-marrying. As a
matter of fact, the chief polyandrous peoples either live in sterile
mountain regions, or are endogamous in a very high degree."[429]
It does not follow, however, that a surplus of men will always
produce polyandry, any more than a plurality of women will always
lead to polygyny. Other conditions must be favorable. "This practice
presupposes," for instance, "an abnormally feeble disposition to
jealousy;" and this is actually a "peculiarity of all peoples among
whom polyandry occurs."[430]
[429] WESTERMARCK, _op. cit._, 482, 483. _Cf._
MARSHALL, _A Phrenologist amongst the Todas_, 110, 111,
221, _passim_, for illustrations.
[430] WESTERMARCK, _op. cit._, 515.
The evidence adduced seems conclusive that polyandry holds a
relatively unimportant place in the sociological history of mankind.
It is not of frequent occurrence; it is usually modified in the
direction of monogamy; and it always implies a considerable progress
in civilization. The case is much the same with polygyny.[431] It is
not a mere limitation of promiscuity, as some writers believe,[432]
but usually makes its appearance comparatively late in social
history. It is found side by side with polyandry and does not grow
out of it, as McLennan supposes. Finally, like polyandry, its
importance as a form of sexual relations has been greatly magnified.
True, polygyny is much more widely dispersed than polyandry, being
found perhaps among the majority of races both in ancient and modern
times.[433] Its rise is particularly favored by the economic and
social forces which produce the patriarchal system.[434] But, on
the other hand, among many barbarous peoples it is "almost unknown
or even prohibited." Monogamy appears to be the _prevailing_
form of the family precisely among peoples least advanced in
general culture and particularly in the economic arts.[435] It
is highly significant, to take a single example, that among the
Dravidian Veddahs of Ceylon, commonly regarded as anatomically and
intellectually among the most backward races of mankind, monogamous
unions last until death dissolves them. To those still untouched
by foreign influences polyandry and polygyny are entirely unknown.
There is no prostitution. Conjugal fidelity is remarkable. Free
courtship exists. Children are treated with kindness; and in general
the Sarasin brothers present a picture of pleasing domestic life
among this singular people.[436]
[431] On polygyny see SWINDEREN, _Disputatio
de polygynia_ (1795); WEINHOLD, _Die deutschen
Frauen_, II, 13 ff.; POST, _Familienrecht_, 63 ff.;
_Geschlechtsgenossenschaft_, 17 ff., 26 ff.; KOVALEVSKY,
_Tableau_, 101 ff.; HELLWALD, _Die mensch. Familie_,
367-437; MASON, _Woman's Share in Primitive
Culture_, 222 ff.; DARWIN, _Descent of Man_, chaps.
viii, xx; LUBBOCK, _Origin of Civilization_, 143;
LETOURNEAU, _L'évolution du mariage_, chaps. viii,
ix, x, xi; WAKE, _Marriage and Kinship_, chap. vi;
SPENCER, _Principles of Sociology_, I, 682-97;
STARCKE, _Primitive Family_, 261 ff., _passim_;
WESTERMARCK, _Human Marriage_, 431 ff., and Index.
For examples of polygyny see KOHLER, in _ZVR._, VII,
370, 379 (Papuas); VIII, 114 (Dekkan); IX, 324 (Bengal);
X, 55 (Azteks); 97-99 (Bombay); XI, 432, 433 (Kamerun);
HENRICI, "Das Recht der Epheneger," _ZVR._, XI, 134;
POST, "Die Kodification des Rechts der Amaxosa,"
_ibid._, XI, 232, 233; REHME, "Das Recht der Amaxosa,"
_ibid._, X, 36.
[432] For instance, SPENCER, _Principles of Sociology_,
I, 672, 688.
[433] See the enumeration of polygynous peoples in
WESTERMARCK, _op. cit._, 431-35; SPENCER, _op.
cit._, I, 682, 683; WAKE, _Marriage and Kinship_, 181
ff.; MASON, _Woman's Place in Primitive Culture_, 222 ff.
[434] HELLWALD, _Die mensch. Familie_, 366 ff.;
GROSSE, _Die Formen der Familie_, 104 ff.
[435] See the lists of monogamous peoples in
WESTERMARCK, _op. cit._, 435-38; and compare
DARWIN, _Descent of Man_, 591; POST,
_Familienrecht_, 73; LETOURNEAU, _L'évolution du
mariage_, chap. xi; and especially GROSSE, _Die Formen
der Familie_, as above summarized, chap. ii.
[436] SARASIN, _Die Weddas von Ceylon_, I, 457-75. These
investigators, sustaining Westermarck's view of social evolution,
regard the monogamy of the Veddahs as a typical primitive
institution. Of course, as KOHLER, _Zur Urgeschichte
der Ehe_, 10 ff., 14 ff., urges against Westermarck and the
Sarasin brothers, the accumulation of a great number of examples
of peoples among whom monogamy prevails does not necessarily
constitute proof of the original condition of man. It is
possible, for example, that the Veddahs are far advanced beyond
their former condition, or, conversely, that they are a degraded
race. Still the existence of these examples of the single pairing
family among barbarous and savage men, as well as those found
among the anthropoid mammals, puts the burden of proof on the
other side. At any rate, it must not be lightly assumed that this
kind of evidence has been used more critically by the adherents
of the theory of promiscuity than by those who take the opposite
view.
Where polygyny exists it is sometimes the chiefs alone who are
"permitted to have a plurality of wives." Besides, just as in the
case of polyandry, "almost everywhere it is confined to a very small
part of the people, the majority being monogamous." It is so "among
all Mohammedan peoples, in Asia and Europe, as well as in Africa."
Ninety-five per cent. of the Mohammedans of India, for instance, are
said to be monogamists; and in Persia, it is reported, only "two per
cent. of the population enjoy the questionable luxury of a plurality
of wives." Among the American aborigines monogamy is the rule.
Although polygyny widely exists among them, seldom are more than
two wives found.[437] Indeed the numerical proportion of the sexes
throughout the world renders it impossible for polygyny to become
the general practice.[438]
[437] Polygyny is found, for example, among the Innuit, but
monogamy is the rule, though marriages are often of very short
duration. Occasionally there are two, three, four, or in very
rare cases even five wives: TURNER, "Ethnology of the
Ungava District," _XI. Rep. of Bureau of Eth._, 182, 188, 189.
Among the Point Barrow Eskimo Murdoch found usually one wife, and
never heard of more than two: "Point Barrow Expedition," _ibid._,
411. "Rich men" among the Thlinkets often have two wives:
NIBLACK, "Coast Indians," _Rep. Smith. Inst., 1888_,
367, 368; KRAUSE, _Die Tlinkit Indianer_, 220. The Pima
Indian has more than one wife when he can support them, for "the
wife is the slave of the husband": GROSSMANN, "The
Pima Indians of Arizona," _Rep. Smith. Inst., 1871_, 415, 416.
A Ponca chief married four wives at one time, took them at once
to his wigwam, and all got on well: _Rep. Smith. Inst., 1885_,
64. The Wyandottes allow polygyny if the wives are taken from
different _gentes_, but polyandry is prohibited: POWELL,
"Wyandotte Society," _A. A. A. S._, XXIX, 681. Sometimes
"duogamy" is found among the Seminoles: MACCAULEY, in
_V. Rep. of Bureau of Eth._, 495. Among the Sioux "a plurality
of wives is required of a good hunter, since in the labors of
the chase women are of great service": DORSEY, "Siouan
Sociology," _XV. Rep. of Bureau of Eth._, 225; but the "maximum
number of wives that one man (an Omaha Sioux) can have is three,
_e. g._, the first wife, her aunt, and her sister or niece, if
all be consanguinities. Sometimes the three are not kindred":
_idem_, "Omaha Sociology," _III. Rep. of Bureau of Eth._, 261;
and compare KOHLER, _Zur Urgeschichte der Ehe_, 65 ff.,
82, who finds here an evidence of group-marriage. One wife is the
rule among the South American Abipones: DOBRIZHOFFER,
_Account_, II, 209, 210; and Appiacás: GUIMARÃES,
"Memoria," _Revist. Trimens. Hist._, VI, 307; and in general
it is the prevalent form in South America: MARTIUS,
_Ethnographie_, II, 104; _idem_, _Rechtszustande_, 53. Two wives
is the average number among the _Seri_: MCGEE, in _XVII.
Rep. of Bureau of Eth._, Part I, 279.
[438] For a collation of the facts as to the ratio of
polygynists to the whole population among polygynous peoples,
consult WESTERMARCK, _op. cit._, 438-42; _cf._
HELLWALD, _Die mensch. Familie_, 413, 414.
Polygyny, like polyandry, is modified in several ways in the
direction of monogamy. Often, as in Africa[439] and among many
American peoples, a "higher position is given to one of the wives,
generally the first married." She possesses superior authority and
becomes the real mistress of the household. Thus, according to
Waitz, among the Eskimo a second wife is seldom taken unless the
first is childless; but in polygynous families the first wife has
domestic precedence. The same is true generally of the red Indians
of the north-west coast.[440] Among the Siouan tribes the bride's
sisters sometimes become subordinate wives;[441] and usually where
there are several, according to Dorsey, the first wife and the last
are "the favorites, all others being regarded as servants."[442] The
principal Indians among the Brazilian Tupinambás, says Souza, "have
more than one wife, and he who has most wives is the most honored
and esteemed; but they all yield obedience to the eldest wife and
all serve her." She "has her hammock tied up next to that of her
husband, and between the two there is always a fire burning."[443]
Among various peoples it is required "that the first wife shall
be of the husband's rank, whilst the succeeding wives may be of
lower birth." Sometimes, as among the Chinese, the ancient Hebrews,
and the kings of early Egypt, the secondary wives really hold the
position of concubines.[444] Frequently the husband has a favorite
whom he treats especially as his wife; or conversely, as among the
Abipones,[445] he is "bound by custom or law to cohabit with his
wives in turn." Finally, it is important to note that everywhere
bigamy, or rather duogamy, is the "most common form of polygyny, and
a multitude of wives is the luxury of a few despotic rulers or very
wealthy men."[446]
[439] WAITZ, _Anthropologie_, II, 109; but here the
subordinate women are not always legitimate wives. _Cf._
GROSSE, _Die Formen der Familie_, 109; FRITSCH,
_Die Eingeborenen Süd-Afrikas_, 114, 192, 193, 227, 363.
[440] WAITZ, _op. cit._, III, 308, 328. In the Ungava
District the children of the first wife take precedence:
TURNER, _op. cit._, 190; _cf._ NIBLACK, "Coast
Indians," _Rep. Smith. Inst., 1888_, 367.
[441] MCGEE, "The Siouan Indians," _XV. Rep. of Bureau
of Eth._, 178.
[442] DORSEY, "Siouan Sociology," _ibid._, 225. Among
the Siouan Omahas, "when a man wishes to take a second wife he
always consults his first wife, reasoning thus with her: 'I
wish you to have less work to do, so I think of taking your
sister, your aunt, or your brother's daughter for my wife. You
can then have her to aid you with your work.' Should the first
wife refuse, the man cannot marry the other woman. Generally no
objection is offered, especially if the second woman be one of
the kindred of the first wife. Sometimes the first wife will
make the proposition to her husband.... The first wife is never
deposed."--_Idem_, "Omaha Sociology," _III. Rep. of Bureau of
Eth._, 261.
[443] SOUZA, "Tratado Descriptivo do Brazil," _Revist.
Inst. Hist._, XIV (1851), 311 ff. Compare MARTIUS,
_Ethnographie_, 104-06, 108, 109, notes; _idem_,
_Rechtszustande_, 53, 54, 57, 58.
[444] On these modifications see SPENCER, _Principles
of Sociology_, I, 694-96; WAKE, _Marriage and Kinship_,
196, 197, 186 ff., 210. "The phases of this custom [wives of
different grades] may be practically divided into (_a_) those
in which all a man's wives have equal rights, (_b_) and those
where there is a superior wife (or wives) and inferior ones, the
latter being sometimes legal wives, and at others slave wives
or concubines."--WAKE, 197. "The Siamese occupy the
almost unique position of having four classes of wives, of which,
however, the slave wife answers to the concubines of other forms
of polygyny."--_Ibid._, 197. _Cf._ further, GROSSE,
_Die Formen der Familie_, 109; WAITZ, _Anthropologie_,
III, 328; HELLWALD, _Die mensch. Familie_, 368, 382
(China), 414; AVERY, "The Indo-Pacific Oceans," _Am.
Antiquarian_, VI, 366.
[445] "I have known many who kept the same wife all their
lives. But if any Abipon marries several women, he settles them
in separate hordes, many leagues distant from one another,
and visits first one, then the other, at intervals of a
year."--DOBRIZHOFFER, _Account_, II, 210.
[446] WESTERMARCK, _Human Marriage_, 442-50; _cf._
STARCKE, _Primitive Family_, 261, 262.
Let us next consider the causes which favor the rise of polygyny.
It is highly probable, in countries "unaffected by European
civilization," that a surplus of women has exerted an influence in
its favor.[447] Thus in India polygyny is found among peoples where
there is a plurality of women, and polyandry where the reverse is
the case.[448] Among the Kafirs and the aboriginal tribes of North
America polygyny usually appears only where the women outnumber
the men.[449] This disparity of the sexes may sometimes be due to
the ravages of war;[450] but it is more likely, as in the case of
polyandry, that it owes its origin to natural selection, abundance
of nourishment tending to produce an excess of female births.
Polygyny also arises from calculation. According to Wake, "abundance
may be said to be the chief inducement to the practice;" and, as a
matter of fact, it is usually the wealthier persons among polygynous
peoples who indulge in the luxury of many wives.[451] Poverty
and the approximate equality of the sexes, Spencer holds, are the
natural restrictions of polygyny.[452] Again, "superior strength of
body and energy of mind, which gained certain men predominance as
warriors and chiefs, also gave them more power of securing women;
either by stealing them from other tribes or by wresting them from
men of their own tribe."[453] In this way the possession of a number
of wives would become a mark of distinction. Consequently polygyny
sometimes appears as the special privilege of the ruler or of a
class; and, as Spencer suggests, from its association with greatness
it may gain popular approbation, just as monogamy may be thought
"mean" from its association with poverty. "Even the religious
sanction is sometimes joined with the ethical sanction," as among
the Chippewayans.[454]
[447] This is the view of WESTERMARCK, _op. cit._,
482, as opposed to that of CHERVIN, _Recherches
médico-philosophiques sur les causes physiques de la polygamie
dans les pays chauds_ (Paris, 1812), 38; and he is sustained by
GOEHLERT, "Die Geschlechtsverschiedenheit der Kinder
in den Ehen," _ZFE._, XIII, 127. See also SPENCER,
_Principles of Sociology_, I, 689, 690; WAKE, _Marriage
and Kinship_, 204, 205.
[448] WAKE, _op. cit._, 205; WESTERMARCK, _op.
cit._, 482; GOEHLERT, _loc. cit._
[449] SPENCER, _op. cit._, I, 684, 689, 690;
WAKE, _op. cit._, 205; CATLIN, _North American
Indians_, I, 118.
[450] SPENCER, _op. cit._, I, 689, 690.
[451] WAKE, _op. cit._, 179-81; SPENCER,
_op. cit._, 685. So the African has as many wives as he can
buy; and only the rich in ancient Mexico indulged in polygyny:
WAITZ, _Anthropologie_, II, 108; IV, 130. Among the
American Indians the cost and difficulty of feeding them make
several wives the privilege of the opulent. Increased labor
gives the California Wintun woman increased rights; "for then
she extorts monogamy": RATZEL, _History of Mankind_,
II, 124, 494 (China and Japan). Compare AVERY, "The
Indo-Pacific Oceans," _Am. Antiquarian_, VI, 366.
[452] SPENCER, _op. cit._, I, 683, 684. _Cf._
STARCKE, _op. cit._, 261, who says: "It follows from the
nature of things ... that polygamy can never have been the normal
condition of a tribe, since it would have involved the existence
of twice as many women as men. Polygamy must necessarily have
been restricted to the noblest, richest, and bravest members of
the tribe." Spencer holds that polygyny is connected especially
with the "militant" stage of society, as opposed to the
industrial: _op. cit._, 706.
[453] SPENCER, _op. cit._, I, 685, 686.
[454] _Ibid._, 685-88; _cf._ STARCKE, _op. cit._, 261.
Various other reasons for the rise and spread of polygyny have been
advanced. Among these are the motives arising in passion, such as
man's love of beauty[455] and variety, and his unwillingness to
practice abstinence in certain seasons.[456] More powerful than
these is the "desire for offspring, wealth, and authority." In
certain stages of advancement the more children a man has, the
greater are his power and distinction. His "fortune is increased by
a multitude of wives not only through their children, but through
their labour."[457] For this reason, in some cases where jealousy
is weak, women cling to polygyny; since by sharing the toil with
others they hope that its burden may be lessened.[458] Spencer
assigns another cause of the rise of polygyny which has enabled
it to hold its ground even against the superior type, monogamy.
For "under rude conditions," he believes that "it conduces in a
higher degree to social self-preservation." The loss of population
sustained by the ravages of war are thus repaired. A bias in favor
of polygyny may be founded which will even come to be sustained by
natural selection. "In a barbarous community formed of some wifeless
men, others who have one wife each, and others who have more than
one, it must on the average happen that this last class will be
relatively superior--the stronger and more courageous among savages,
and among semi-civilized peoples the wealthier also, who are mostly
the more capable. Hence, ordinarily, a greater number of offspring
will be left by men having natures of the kind needed. The society
will be rendered ... not only numerically stronger, but more of
its units will be efficient warriors." Furthermore, there will be
a "structural advance" as compared with lower types of the family.
Paternity is certain; and, where descent is traced in the male
line, "inheritance of power by sons becomes possible; and, where
it arises, government is better maintained." The family cohesion
is greater; and "this definite descent in the male line aids the
development of ancestor-worship; and so serves in another way to
consolidate society."[459] For these reasons chiefly he regards
polygyny as a type of marriage higher than polyandry; though he
remarks that, "were it not for the ideas of sacredness associated
with that Hebrew history which in childhood familiarized us with
examples of polygyny, we should probably feel as much surprise and
repugnance on first reading about it as we do on first reading
about polyandry."[460] But this is too favorable an estimate of the
relative social value of polygyny. It is doubtful, to say the least,
whether morally and physically it is more favorable to the offspring
than polyandry; and it is almost certain that it is far worse in its
effects upon the home and condition of women.[461] This fact alone,
when considered in all its consequences, far outweighs the alleged
relative structural advantages of polygyny, which besides have not
been conclusively established.
[455] Owing to the hard conditions of life, female beauty fades
early among savage and barbarous peoples, sometimes even among
those reckoned as civilized. A fresh wife is demanded when
the first grows old. In some cases the husband is forbidden
by custom to cohabit with his wife until the child is weaned,
though suckling may continue two, three, or four years:
WESTERMARCK, _op. cit._, 483-88; PLOSS, _Das
Weib_, I, 58, 59 (fading beauty).
[456] WAKE, _Marriage and Kinship_, 202 ff., thus
summarizes the causes of polygyny: "_First_, the sterility of the
first wife," as in the case of Rachel; "_secondly_, the length
of time during which a woman suckles her child; _thirdly_, the
sexual requirements of man while leading a hunting or pastoral
mode of life; _fourthly_, the accidental scarcity of men; and,
_fifthly_, the luxury or sensuality of man, or the desire for
influence and power."
[457] WESTERMARCK, _op. cit._, 489-91; _cf._
STARCKE, _op. cit._, 261.
[458] WESTERMARCK, _op. cit._, 495,496;
SPENCER, _op. cit._, I, 688.
[459] SPENCER, _op. cit._, I, 688, 689, 690 ff., 697.
_Cf._ on causes of polygyny, LUBBOCK, _Origin of
Civilization_, 112.
[460] SPENCER, _op. cit._, I, 682. _Cf._ the similar
view of WAKE, _Marriage and Kinship_, 219.
[461] This evil effect Spencer himself emphasizes, though
he thinks polygyny favorable to women where the habitat is
unfavorable to their self-support and men are scarce: _op.
cit._, I, 692-94. See WAKE, _op. cit._, 219 ff., for
the relatively advanced condition of women under polyandry;
and compare HELLWALD, _Die mensch. Familie_, 256 ff.,
who summarizes opinions as to the influence of polyandry; and
GROSSE, _Die Formen der Familie_, 110, who emphasizes
the degradation of woman among pastoral polygynists.
But, as a rule, neither polygyny nor polyandry is favored by
woman, in whom the passion of jealousy is very strongly developed.
"Polygyny is an offence against the feelings of women, not only
among highly civilized peoples, but even among the rudest savages."
It is a noteworthy fact that "among monogamous savage or barbarous
races the position of women is comparatively good;"[462] while,
on the other hand, polygyny is in almost every way degrading to
the female sex.[463] Accordingly, under influence of ideas and
sentiments favoring the freedom and dignity of woman, both polygyny
and polyandry must yield to individual marriage. With woman in
its favor monogamy could never be entirely superseded as the type
of human marriage. "Polygamy must disappear as soon as a growing
development brings into play permanent motives and fundamental
forces."[464] Among these forces is the "idea of procreative
conditions" entering into the conception of fatherhood. From this
follow chastity on the part of the wife, and consequently a limit
to the sexual liberty of the husband. Out of this also sprang
ancestor-worship, a powerful force in differentiating the monogamic
household. "Even in primitive times, the character, or soul--the
inward, mysterious being--of the father was supposed to decide
the character of the child.... The joy excited by the excellent
qualities of a child was first aroused in the breast of a primitive
man when that child owed its being to himself, and its excellence
was a proof of the excellence of its begetter, that is, of himself.
I venture to assert that even now this idea plays the strongest part
in what we call the voice of blood.... Vanity, a sentiment which is
often condemned, yet not always blameworthy, finds sustenance in the
most trivial occurrences of everyday life from the thought, 'Here I
trace myself; the child has inherited that tendency from me.'"[465]
With advancing culture and the growth of altruism it is inevitable
that monogamy should assert its right to prevail over all other
forms of the family which have yet appeared among mankind.
[462] WESTERMARCK, _op. cit._, 496-504.
[463] The facts are collected by WAKE, _op. cit._, 210
ff., 198 ff.; _cf._ SPENCER, _op. cit._, I, 693.
[464] STARCKE, _Primitive Family_, 264.
[465] _Ibid._, 264-66. On the influence of ancestor-worship and
the sense of propriety, see WAKE, _op. cit._, chaps.
vii and xii, 227 ff., 234, 435 ff. _Cf._ SPENCER,
_op. cit._, I, 691, 697; and on monogamy, LETOURNEAU,
_L'évolution du mariage_, chaps. xix, ii; POST,
_Familienrecht_, 72 ff.
So we come back to the starting-point. The complex phenomena of
human sexual relations have been examined in the light of scientific
criticism and recent research. The result seems unmistakably to show
that pairing has always been the typical form of human marriage.
Early monogamy takes its rise beyond the border-line separating
man from the lower animals. But, considering the aberrations from
the type, development has been in a circle.[466] At the dawn of
human history individual marriage prevails, though the union is not
always lasting. In later stages of advancement, under the influence
of property, social organization, social distinctions, and the
motives to which they gave rise, various forms of polyandry and
polygyny make their appearance, though monogamy as the type is never
superseded. "Nothing, indeed, is more favourable to polygyny," says
Westermarck, "than social differentiation."[467] In its "highest and
regulated form," declares Morgan, "it presupposes a considerable
advance of society, together with the development of superior and
inferior classes, and of some kinds of wealth."[468] Furthermore
there is direct evidence in some cases that a transition from
monogamy has actually occurred.[469] At a still more advanced stage
of culture, under pressure of those influences which have led to
the social elevation of woman, polygyny yields in turn to monogamy.
"When the feelings of women are held in due respect, monogamy will
necessarily be the only recognized form of marriage. In no way
does the progress of mankind show itself more clearly than in the
increased acknowledgment of women's rights, and the causes which,
at lower stages of development, may make polygyny desired by women
themselves, do not exist in highly civilized societies. The refined
feeling of love, depending chiefly upon mutual sympathy and upon
appreciation of mental qualities, is scarcely compatible with
polygynous habits; and the passion for one has gradually become more
absorbing."[470] But the later monogamy differs from the earlier in
one important characteristic. The primitive monogamy "is not a form
of marriage which can be regarded as the expression of a marriage
law; that is, it is not a form of marriage which is striving for
the mastery, and which cannot tolerate other co-existent forms of
marriage. On the other hand the later monogamy, which arises from a
distinct condemnation of polygamy, or from a secret aversion to it,
is characterized by self-assertion, and seeks to exclude other forms
of marriage."[471]
[466] See STARCKE'S masterly summary in chapter vii,
"Marriage and its Development," who reaches the conclusion
presented in the text. WESTERMARCK, chaps. xxi,
xxii, xxiv, obtains practically the same result. Compare
also WAKE, _op. cit._, chap. xii, who holds that
group-marriage in the Australian and Punaluan forms is the
original type of marriage. Then follow polyandry and polygyny;
and these are in turn superseded by monogamy. HELLWALD,
_Die mensch. Familie_, 389, declares that polyandry and polygyny
are the rule, and in this sense more "natural" than monogamy.
[467] WESTERMARCK, _op. cit._, 505, 506.
[468] MORGAN, _Systems of Consanguinity_, 477.
[469] WESTERMARCK, _op. cit._, 507, 508.
[470] _Ibid._, 509.
[471] STARCKE, _op. cit._, 264, 265, 255, 258, 259.
For a full understanding of the evolution, which has here been
sketched in outline, there remains, however, a fact of primary
importance to which but casual reference has thus far been made: the
element of contract in the marriage relation. This fact will receive
some consideration in the next chapter.
CHAPTER IV
RISE OF THE MARRIAGE CONTRACT
[BIBLIOGRAPHICAL NOTE IV.--The literature for this chapter may
be more briefly indicated, since it is largely identical with
the authorities mentioned in Bibliographical notes I, II, and
III. The researches of Starcke, Westermarck, Darwin, Letourneau,
and Wake are of primary importance, and marriage by capture and
purchase are of course essential parts of McLennan's _Studies_
I and II, and the _Patriarchal Theory_. Particularly valuable
are the monographs of Dargun, _Mutterrecht und Raubehe_ and his
_Mutterrecht und Vaterrecht_; Kulischer, "Intercommunale Ehe
durch Raub und Kauf," in _ZFE._, VIII; Kohler, "Studien über
Frauengemeinschaft, Frauenraub, und Frauenkauf," _ibid._, V;
Kautsky, "Entstehung der Ehe und der Familie," in _Kosmos_, XII;
and Schroeder, _Hochzeitsbräuche der Esten_ (Berlin, 1888),
containing a description of many curious "survivals." A mass of
miscellaneous information relating to marriage customs may also
be found in Schmidt, _Hochzeiten in Thüringen_ (Weimar, 1863);
Wood, _The Wedding Day_ (New York, 1869); and especially in the
_Hochzeitsbuch_ of Düringsfeld (Leipzig, 1871).
For a full and systematic treatment of the matrimonial law
and usage of many low races see the various books by Post,
especially his _Entwicklungsgeschichte des Familienrechts_,
_Anfänge des Staats- und Rechtsleben_, and the _Afrikanische
Jurisprudenz_.
Illustrations of matrimonial law and usage may be found in
Henrici, "Das Volksrecht der Epheneger," in _ZVR._, XI;
Kohler, "Das Recht der Papuas auf Neu-Guinea," _ibid._, VII;
his "Das Recht der Birmanen," and "Das Recht der Chins," both
_ibid._, VI; Farrer, "Early Wedding Customs," in his _Primitive
Manners_ (London, 1879); Volkov, "Rites et usages nuptiaux
en Ukräine," in _L'anthropologie_, II, III (Paris, 1891-92);
Ellis, "Survivals from Marriage by Capture," in _Pop. Sci.
Monthly_, June, 1891 (New York, 1891); Loring, "Marriage,"
in his _A Confederate Soldier in Egypt_ (New York, 1884);
Blumentritt, _Ethnographie der Philippinen_ (Gotha, 1882); and
Wessely, "Ein griechischer Heiratscontract vom Jahre 136 n.
Ch.," in _Xenia Austriaca_, I (Vienna, 1893). Useful material
will likewise be found in Weinhold, _Deutsche Frauen_ (Vienna,
1882); Harrison, "Religion and Family among the Haidas" (Queen
Charlotte Islands), in _Jour. Anth. Inst._, XXI (London, 1891);
Crawley, "Sexual Taboo," _ibid._, XXIV (London, 1894-95); his
_Mystic Rose_ (London and New York, 1902); and Floessel, _Die
Schwiegermutter_ (Dresden, 1890).
For the question of sexual selection with Darwin compare
Wallace, _Darwinism_ (London, 1891); Poulton, _Colours of
Animals_ (New York, 1890); and Weismann, _Studies in the Theory
of Descent_ (London, 1880-82).
Hebrew marriage is treated by Michaelis, _Abhandlung von den
Ehegesetzen Mosis_ (Göttingen, 1768); his _Commentaries on
the Laws of Moses_ (London, 1814); Lichtschein, _Die Ehe nach
mosaisch-talmudischer Auffassung_ (Leipzig, 1879); Mielziner,
_The Jewish Law of Marriage and Divorce_ (Cincinnati, 1884);
Weill, _La femme juive_ (1874); Kurtz, _Die Ehe der Söhne
Gottes mit den Töchtern der Menschen_ (Berlin, New York, and
Adelaide, 1857); his _Die Ehe des Propheten Hosea_ (Dorpat,
1859); Stubbe, _Die Ehe im Alten Testament_ (Jena, 1886); Ellis,
"Marriage and Kinship among the ancient Israelites," in _Pop.
Sci. Monthly_, XLII (New York, 1892-93), 325-37; Bergel, _Die
Eheverhältnisse der alten Juden_ (Leipzig, 1881); Duschak,
_Das mosaisch-talmudische Eherecht_ (Vienna, 1864); especially
Döllinger's rare book, _Heidenthum und Judenthum_ (Regensburg,
1857), containing a comparison of Grecian, Roman, and Hebrew
laws and social customs. For Babylon see the works of Simcox,
Sayce, Kohler, and Haupt mentioned in the Bibliographical Index,
I.
For the matrimonial institutions of China, see Parker,
"Comparative Chinese Law," in _China Review_, VIII (Hong-Kong,
1879-80); Möllendorff, _Das chinesische Familienrecht_
(Shanghai, 1895); Katscher, _Bilder aus dem chinesischen Leben_
(Leipzig and Heidelberg, 1881); _idem_, _Aus China_ (Leipzig,
1887); Tscheng-ki-Tong, _Chinese Painted by Themselves_ (London,
1885); Arène, _La Chine familière_ (Paris, 1883); Huc, _Chinese
Empire_ (London, 1855); Gray, _China_ (London, 1878); Fielde,
"Chinese Marriage Customs," in _Pop. Sci. Monthly_, XXXIV (New
York, Dec. 1888); Kohler, "Aus dem chinesischen Civilrecht,"
_ZVR._, VI; Giles, _Chinese Sketches_ (London, 1876); Grosier,
_De la Chine_, Tome V (1819); and Smith's valuable _Village Life
in China_ (New York, Chicago, and Toronto, 1899), especially
Part II. For the usages of allied races see Rockhill, "Notes
on the Ethnology of Tibet," in _Report of Smith. Inst._,
1893, Nat. Museum (Washington, 1895); Kohler, "Studien aus
dem japanischen Recht," in _ZVR._, X; Koehne, "Das Recht der
Kalmücken," _ibid._, IX; Dalmas, _Les Japonais_ (Paris, 1885);
Daigoro, "Family Relations in Japan," in _Transactions of the
Japan Society_, II; Rein, _Japan nach Reisen und Studien_
(Leipzig, 1881); Hitchcock, "The Ainos of Yezo, Japan," in
_Report of Smith. Inst._, 1890, Nat. Museum (Washington, 1891);
Araki, _Japanisches Eheschliessungsrecht_ (Göttingen, 1893);
Loti, "Woman in Japan," in _Harper's Monthly_ (New York, 1890),
LXXXII, 119-31; and Titsingh, _Cérémonies usitées au Japon_
(Paris, 1822), the first volume containing very curious and
valuable matter concerning wedding customs.
By far the most thorough and comprehensive researches regarding
the culture and social life of the American aborigines have
been made by American scholars in the _Contributions to
American Ethnology_, the _Reports of the Bureau of Ethnology_,
the _Reports of the Smithsonian Institution_, including those
of the National Museum, and in various periodicals, notably
the _American Antiquarian_ and the _American Anthropologist_.
The most important of these papers for Indian marriage and
family customs are Dorsey, "Omaha Sociology," in _III. Rep.
of Bureau of Eth._, 205-370 (Washington, 1884), supplemented
by his "Siouan Sociology," _ibid._, XV, 205-44 (Washington,
1897); McGee, "Siouan Indians," _ibid._, XV, 153-204; _idem_,
"The Seri Indians," _ibid._, XVII, Part I (Washington, 1898);
Mooney, "Siouan Tribes of the East," in _XVII. Rep. of Bureau
of Eth._ (Washington, 1894); Riggs, "Dakota Grammar, Texts,
and Ethnography," in _Contributions to N.A. Ethnology_, IX
(Washington, 1893); and the elaborate work of Powers, "Tribes
of California" (Washington, 1877), constituting the third
volume of the same series. Some important illustrations of the
matrimonial usages of the Eskimo may be found in Murdoch, "Eth.
Results of Point Barrow Expedition," in _IX. Rep. of Bureau
of Eth._ (Washington, 1892); Nelson, "The Eskimo about Bering
Strait," _ibid._, XVIII, Part I (Washington, 1899); and Turner,
"Ethnology of the Ungava District," _ibid._, XI (Washington,
1894). See also MacCauley, "The Seminole Indians," _ibid._, V
(Washington, 1887); Stevenson, "The Sia," _ibid._, XI, 3-157
(Washington, 1894); Hoffman, "Menomini Indians," _ibid._, XIV
(Washington, 1896); Grossmann, "The Pima Indians of Arizona,"
in _Report Smith. Inst._, 1871 (Washington, 1873); Beckwith,
"Notes on Customs of the Dakotahs," _ibid._, 1886, Part I
(Washington, 1889); Willoughby, "Indians of the Quinaielt
Agency," _ibid._, Part I; Eells, "Twana, Chemakum, and Klallam
Indians," _ibid._, 1887 (Washington, 1889); Niblack, "Coast
Indians of Southern Alaska and Northern Brit. Col.," _ibid._,
1888, Nat. Museum (Washington, 1890); Boaz, "Social Organization
and Secret Societies of the Kwakiutl Indians," _ibid._, 1895,
Nat. Museum (Washington, 1897); Stephen, "The Navajo," in _Am.
Anthropologist_, VI (Washington, 1893); Grinnell, "Marriage
among the Pawnees," _ibid._, IV (Washington, 1891); Corbusier,
"Apache-Yumas and Apache-Mojaves," in _Am. Antiquarian_, VIII
(Chicago, 1886); Beauchamp, "Aboriginal Communal Life," _ibid._,
IX (Chicago, 1887), attacking Morgan's views; Peet, "Village
Life and Clan Residences among the Emblematic Mounds," _ibid._,
IX; his "Ethnographic Religions and Ancestor Worship," and his
"Personal Divinities and Culture Heroes," both _ibid._, XV
(Chicago, 1893); Powell, "Wyandotte Society," in _Proc. Am.
Assoc. Adv. Sci._, XXIX (Salem, 1880); Beauchamp, "Permanence of
Early Iroquois Clans and Sachemships," _ibid._, XXXIV (Salem,
1886); Mallery, "Israelite and Indian," _ibid._, XXXVIII (Salem,
1890); Fletcher's papers on totemism and animism in "Emblematic
Use of the Tree in the Dakotan Group," and her "Study from the
Omaha Tribe," both _ibid._, XLV, XLVI (Salem, 1897-98); Halbert,
"Courtship and Marriage among the Choctaws of Mississippi," in
_Amer. Naturalist_, March, 1832; Carr, "The Social and Political
Position of Women among the Huron-Iroquois Tribes," _XVI. Rep.
of Peabody Museum_ (Cambridge, 1883).
Very valuable early notices of the social customs of the
Brazilian Indians may be found in Stade, _Captivity among
the wild Tribes of eastern Brasil, 1547-55_ (London, 1874);
Anchieta, "Informação dos Casamentos dos Indios do Brasil,"
in _Revista Trimensal_, VIII (Rio de Janeiro, 1867); Souza,
"Tratado descriptivo do Brazil em 1587," _Revista do Instituto
Hist. e Geog._, XIV (Rio de Janeiro, 1851); Léry, _Du mariage,
polygamie, et degrez de consanguinité_ (3d ed., Geneva, 1585);
D'Evreux, _Voyage dans le nord du Brésil, 1613-14_ (Leipzig and
Paris, 1864); Moure, "Les Indiens de la province de Matto-Grosso
(Brésil)," in _Nouvelles annales des voyages_, 1862, II
(Paris); Guimarães, "Costumes e Linguagem dos Appiaacás ...
de Matto-Grosso," in _Revista Trimensal_, VI (2d ed., Rio de
Janeiro, 1865); and Magalhães, "Familia e Religião Selvagem,"
_Revista Trimensal do Instituto_, etc., XXXVI (Rio de Janeiro,
1873, 1876). With these may be read the important accounts of
Lafitau, _Mœurs des sauvages_ (Paris, 1724); Pratz, "Des mœurs
et coutumes des peuples de la Louisiane (Natchez)," in his
_Hist. de la Louisiane_, II (Paris, 1758); and Dobrizhoffer's
description of "weddings" and "marriages" in his _Account of the
Abipones, an Equestrian People of Paraguay_ (London, 1822; Latin
ed., 1784), among whom he lived as missionary for eight years
after his arrival in 1749. There is also a very interesting
passage in Humbolt, _Vues de Cordillères_ (Paris, 1810). See
further Von den Steinen's _Unter den Naturvölkern Brasiliens,
1887-8_ (Berlin, 1894); Martius, _Von dem Rechtszustande
unter den Ureinwohnern Brasiliens_ (Munich, 1832); which is
reprinted with other matter in his _Beiträge zur Ethnographie
und Sprachenkunde Amerikas zumal Brasiliens_ (Leipzig, 1867);
and Adam, _Du parler des hommes et du parler des femmes dans
la langue Caraïbe_ (Paris, 1879). Much material is also
contained in Rink, _Eskimo Tribes_ (Copenhagen and London,
1887); his _Tales and Traditions of the Eskimo_ (Edinburgh
and London, 1875); Catlin, _North American Indians_ (London,
1841); Schoolcraft, _Indian Tribes_ (Philadelphia, 1853-56);
Bancroft, _Native Races_ (New York, 1875-76); Kohler, "Das
Recht der Azteken," in _ZVR._, XI; Vols. III and IV of Waitz,
_Anthropologie_; Krause, _Die Tlinkit-Indianer_ (Jena, 1885);
and Bandelier "Social Organization and Mode of Government of
the Ancient Mexicans," in _Rep. Peabody Museum_, II, 557-699.
Among the many works cited in this chapter which have already
been enumerated in preceding Bibliographical Notes especially
important are those of Jolly, Leist, Krause, Rossbach, Morgan,
Bernhöft, Friedrichs, Spencer, Lubbock, Ploss, Lippert,
Robertson Smith, Finck, Grosse, Hellwald, and various writings
of Kohler.]
Everywhere among our ancestors, when authentic history dawns upon
the institutions of the Germanic race, marriage is effected by
means of a contract. The transaction is a contract of sale through
which for a price the bride is conveyed by the father or guardian
into the bridegroom's hand. But, as will appear later, the element
of sale is rapidly taking on a symbolical character. The question
arises in the outset as to the antiquity of contract in marriage.
Is it of comparatively late origin, as is often assumed? Or can the
element of agreement, of consent of the parties, be traced from the
very beginning of the human family? Again, what is the character
and what the historical significance of marriage by purchase? Is it
the earliest form of matrimonial contract, and does it constitute a
universal phase of development subsequent to that of capturing women?
I. WIFE-CAPTURE AND THE SYMBOL OF RAPE[472]
[472] For wife-capture see MCLENNAN, _Studies_, I,
31 ff.; II, 57 ff., 268 ff., _passim_; _Patriarchial Theory_,
chap, xiii; POST, _Familienrecht_, 97 ff., 137-57;
_Geschlechtsgenossenschaft_, 54 ff.; _Ursprung des Rechts_, 47,
57; _Anfänge_, 209; _Grundlagen_, 229 ff.; 240; _Afrikanische
Jurisprudenz_, I, 323 ff.; HELLWALD, _Die mensch.
Familie_, 275-86; GROSSE, _Die Formen der Familie_,
105 ff.; ACHELIS, _Entwicklung der Ehe_, 79 ff.;
KULISCHER, "Intercommunale Ehe durch Raub und Kauf,"
_ZFE._, X, 192 ff.; LETOURNEAU, _L'évolution du
mariage_, 110-29; DARGUN, _Mutterrecht und Raubehe_;
SCHROEDER, _Hochzeitsbräuche der Esten_, 14 ff.;
WESTERMARCK, _Human Marriage_, 383-90; STARCKE,
_Primitive Family_, 209 ff., _passim_; LUBBOCK, _Origin
of Civilization_, 104-33; GIRAUD-TEULON, _Les origines_,
117 ff.; LIPPERT, _Geschichte der Familie_, 42 ff., 100
ff., 95-118, 148 ff.; _idem_, _Kulturgeschichte_, II, 93 ff.,
103, 129; WAKE, _Marriage and Kinship_, 402-34, 246
ff., 305, 350; KOHLER, "Studien," _ZVR._, V, 334-68;
FRIEDRICHS, "Familienstufen und Eheformen," _ibid._,
X, 212, 213; BERNHÖFT, "Principien des europäischen
Familienrechts," _ibid._, IX, 392-406; LEIST,
_Alt-arisches Jus Gentium_, 126 ff.; ZMIGRODSKI, _Die
Mutter_, 249 ff.; KAUTSKY, in _Kosmos_, XII, 256 ff.,
338 ff.; HILDEBRAND, _Ueber das Problem_, 17 ff.;
HEUSLER, _Institutionen_, II, 277-86; MUCKE,
_Horde und Familie_, 108 ff., _passim_; SPENCER, in
_Various Fragments_, 74 ff., replying to McLennan.
According to McLennan, as we have already seen, capture as a means
of getting wives is a universal practice among primitive men. It
is due to polyandry occasioned by a scarcity of women; it leads to
exogamy; and it is generally superseded by contract in the form
of wife-purchase.[473] The evidence of the former universality of
the custom is derived from two sources: first, the existence of
actual wife-capture among many peoples in all parts of the world;
second, the symbol of rape in the marriage ceremony or in the
preliminary act of taking the woman. The symbol, it is held, can
be accounted for only as a survival of real capture. Other writers
agree with McLennan in regarding the evidence as conclusive. Such,
in effect, is the view of Dargun, though he admits that it cannot
with absolute certainty be assumed that capture was ever the only
form of marriage recognized.[474] Post, on the other hand, declares
that the universality of wife-stealing is beyond question; and he
holds that it is a natural incident of the genealogical organization
of society. It is connected in the closest manner with the exogamous
system peculiar to that organization, appearing as one of the means
by which marriage can be brought about between members of different
gentile groups. It was, in short, the legal means of procuring a
wife.[475]
[473] MCLENNAN, _Studies_, I, chaps. ii-vi, _passim_;
_Patriarchal Theory_, chap. xiii.
[474] "Ein zweites, bemerkenswertes Factum ist, dass es
vergeblich wäre ein Volk finden zu wollen, von welchem direkt
erwiesen werden könnte, es schliesse gegenwärtig sämmtliche Ehen
auf dem Wege des Raubes, oder habe sie jemals nur auf diesem Wege
geschlossen. Daher kann nicht mit voller Sicherheit behauptet
werden, der Frauenraub sei je einzige Eheschliessungsform
gewesen. Um so wahrscheinlicher ist es, dass er gewöhnliche,
vorherrschende Eheschliessungsform war, da sich nur unter dieser
Voraussetzung die allgemeine Anwendung der Entführungssymbolik
bei den einzelnen Völkern erklären lässt."--DARGUN,
_Mutterrecht und Raubehe_, 79, 80.
[475] POST, _Familienrecht_, 137, 138. KOHLER
also regards capture as a general stage preceding that of
wife-purchase: "Studien," _ZVR._, V, 336; _idem_, "Indisches Ehe-
und Familienrecht," _ibid._, _ZVR._, III, 342 ff.; and such also
is the view of LIPPERT, _Geschichte der Familie_, 42
ff., 44, 95-118.
Nevertheless, a careful study of the facts makes it almost certain
that the significance of wife-stealing as a sociological element
has been greatly exaggerated, and its true relation to marriage
strangely misunderstood.[476] It is perfectly natural that savage
or barbarous races should seize women as a part of the ordinary
spoils of war. Everything portable becomes the prey of the victor.
"The taking of women," to repeat the forcible words of Spencer, "is
manifestly but a part of this process of spoiling the vanquished."
They are "prized as wives, as concubines, as drudges."[477]
[476] Such is the view of LETOURNEAU in his
able discussion of this subject: "Si pourtant l'on ne
peut se dispenser d'étudier spécialement le mariage par
capture, c'est qu'on lui a fait jouer en sociologie un rôle
capital."--_L'évolution du mariage_, 110 ff.
[477] SPENCER, _Principles of Sociology_, I, 650.
Accordingly, it is not difficult to collect examples of the actual
capture of women to serve as slaves, mistresses, or wives at the
pleasure of the captor. Among the aboriginal American tribes,
we are told, the practice is originally found in its "greatest
perfection."[478] From Cape Horn to Hudson's Bay women are regarded
as legitimate booty. The Horse Indians of Patagonia fight with
each other, tribe against tribe, the issues of victory in every
case being the "capture of women and the slaughter of men." The
Patagonian Oens, or Coin-men, make systematic excursions every
year at the time of the "red-leaf" to "plunder Fuegians of their
women, dogs, and arms."[479] It is even reported of the Caribs that
they depend so much upon the securing of foreign wives in war that
nowhere do the women speak the same language as the men,[480] and a
similar statement is made concerning the Brazilian Guaycurûs[481]
and some other peoples.[482] But in North America the capturing of
women for wives has nearly disappeared.
[478] MCLENNAN, _Studies_, I, 31 ff.
[479] _Ibid._, 32; LETOURNEAU, _op. cit._, 114; _Voyages
of the Adventure and Beagle_, II, 205.
[480] ADAM, _Du parler des hommes_, 2 ff.;
MARTIUS, _Rechtszustande_, 55; LETOURNEAU,
_op. cit._, 114; MCLENNAN, _op. cit._, I, 33, 34;
WESTERMARCK, _Human Marriage_, 383; WAITZ,
_Anthropologie_, III, 355; DARGUN, _Mutterrecht und
Raubehe_, 82. But see CRAWLEY, _Mystic Rose_, 46-48, who
believes the difference of language is one of the results of the
fear of evil which causes sex-segregation and sexual taboo.
[481] MARTIUS, _Ethnologie_, I, 106, 107; _idem,
Rechtszustande_, 55, 62.
[482] HELLWALD, _Die mensch. Familie_, 188.
The practice of capturing or forcibly abducting women, though
rare, exists among the Hottentots and elsewhere in Africa.[483] It
prevails throughout all Melanesia, where abduction is described
as the "primitive means of procuring wives or rather slaves,
absolutely at the pleasure of the ravisher."[484] It has existed in
Tasmania, New Zealand, Samoa, New Guinea, among the Fiji Islanders,
throughout the Indian Archipelago, and to a very limited extent in
Australia.[485] For the Finnish-Ugrian and Turco-Tartaric peoples
proofs of the present or former existence of the practice have been
collected.[486]
[483] LETOURNEAU, _op. cit._, 113, 114;
WESTERMARCK, op. cit., 384; POST, Afrikanische
Jurisprudenz, I, 324 ff.
[484] LETOURNEAU, _op. cit._, 111.
[485] DARGUN, _op. cit._, 81; WESTERMARCK, _op.
cit._, 385; FISON AND HOWITT, _Kamilaroi and Kurnai_,
343 ff.; MATHEWS, "Australian Aborigines," _Jour. Roy.
Soc., N. S. Wales_, XXIII, 407; SMYTH, _Aborigines of
Victoria_, II, 316; SPENCER AND GILLEN, _Native Tribes
of Cent. Australia_, 102-5, 554-56.
[486] See especially SCHROEDER, _Hochzeitsbräuche_;
BUCH, _Die Wotjäken_, 49 ff.; KOHLER,
"Studien," _ZVR_., V, 334 ff.; and his "Frauenwerbung und
Frauenraub im finnischen Heldenepos," _ibid._, VI, 277 ff.
There are abundant evidences of woman-capture _de facto_ among
peoples of the Aryan stock. It existed among the ancient
Germans;[487] and according to Olaus Magnus, the Scandinavian
nations were continuously at war with one another "propter raptas
virgines aut arripiendas."[488] The same writer says that it
"prevailed in Muscovy, Lithuania, and Livonia;" while among the
South Slavonians actual capture "was in full force no longer ago
than the beginning of the present century."[489] Such was the case
in Servia, where it was the custom either to lie in wait for a
girl of a neighboring village to bear her away as she went out for
water or to tend the flocks; or else an armed assault was made upon
her home. Murders were thus often committed; for the attacking
party were resolved to suffer themselves to be killed rather than
give up the girl, and all the inhabitants of the girl's village
took part in the fray.[490] According to Dargun, the Slavs are as
conspicuous among the Aryans for wife-capture and its survivals
as are the Aryans, for the same reason, among the great divisions
of mankind.[491] It is not at all unlikely that the custom of
wife-stealing existed among the early Romans, even if the story
of the Sabine rape be dismissed as merely an ætological myth to
explain the symbol of capture in the marriage ceremony.[492] Without
doubt it was also common among the primitive Greeks; and "even now,
according to Sakellarios, capture of wives occasionally occurs in
Greece."[493] It is found "among the aborigines of the Deccan, and
in Afghanistan;"[494] while it was known to the ancient Hindus. The
code of Manu mentions capture as one of the eight legal forms of
marriage. "The forcible abduction from home of a maiden crying out
and weeping, after slaying and wounding her relatives and breaking
in, is called the Rāksasa form;" but this is only for the military
class.[495]
[487] DARGUN, _op. cit._, 111-40; WEINHOLD,
_Deutsche Frauen_, I, 308-10; GRIMM, _Deutsche
Rechtsalterthümer_, 440; WESTERMARCK, _op. cit._, 387.
[488] WESTERMARCK, _op. cit._, 387, citing OLAUS
MAGNUS, _Historia de gentibus septentrionalibus_, Book X,
chap, ii, 328. _Cf._ also MCLENNAN, _op. cit._, I, 37;
and DARGUN, _op. cit._, 95-97, who gives the passage
from Olaus.
[489] WESTERMARCK, _op. cit._, 387. Compare
KOVALEVSKY, _Mod. Customs and Ancient Laws of Russia_,
23, 24.
[490] DARGUN, _op. cit._, 93, 94; SCHROEDER,
_Hochzeitsbräuche_, 18; KULISCHER, "Intercommunale Ehe
durch Raub und Kauf," _ZFE._, X, 197; DÜRINGSFELD,
_Hochzeitsbuch_, 73, 77.
[491] DARGUN, _op. cit._, 92.
[492] _Ibid._, 100-102; ROSSBACH, _Die römische Ehe_,
214, 215, 328 ff.; LUBBOCK, _Origin of Civilization_,
124; SCHROEDER, _op. cit._, 16.
[493] WESTERMARCK, _op. cit._, 386, citing
ZMIGRODSKI, _Die Mutter bei den Völkern des arischen
Stammes_, 250. For the ancient Greeks see MCLENNAN,
_op. cit._, I, 44-46; DARGUN, _op. cit._, 99;
SCHROEDER, _op. cit._, 15, 16; ROSSBACH, _op.
cit._, 213. According to HRUZA, _Ehebegründung_, 5;
_idem_, _Polygamie und Pellikat_, 79, 94, 95, capture of women
for wives existed only in isolated cases among the ancient
Hellenes.
[494] MCLENNAN, _op. cit._, I, 35, citing
CAMPBELL'S _Indian Journal_ (1864), 400, and
LATHAM'S _Descriptive Ethnology_, II, 215.
[495] BURNELL AND HOPKINS, _Ordinances of Manu_, III,
vss. 33, 26, pp. 48, 49, 189-91. _Cf._ MCLENNAN,
_op. cit._, I, 42, 43; DARGUN, _op. cit._, 93;
WESTERMARCK, _op. cit._, 386; LETOURNEAU,
_L'évolution du mariage_, 115; LEIST, _Alt-arisches
Jus Gentium_, 126 ff.; KOHLER, "Indisches Ehe- und
Familienrecht," _ZVR._, III, 344 ff.; MAYNE, _Hindu
Law and Usage_, 76, 77, 80; SCHROEDER, _op. cit._, 15;
JOLLY, _Rechtliche Stellung der Frauen bei den ältern
Indern_, 19; _idem_, _Hindu Law of Partition_, 73 ff.
The capture of women for wives is very prominent with savage or
barbarous peoples of the Semitic race. "At the time of Mohammed,"
says Robertson Smith, "the practice was universal" among the Arabs.
"The immunity of women in time of war which prevails in Arabia now
is a modern thing; in old warfare the procuring of captives both
male and female was a main object of every expedition, and the Dîwân
of the Hodhail poets shews us that there was a regular slave trade
in Mecca, supplied by the wars that went on among the surrounding
tribes.... Very commonly these captives at once became the wives or
mistresses of their captors--a practice which Mohammed expressly
recognized, though he sought to modify some of its more offensive
features. Such a connection does not appear to have been, properly
speaking, concubinage." The sons of a captive woman suffered no
legal disability. "According to Arab tradition the best and stoutest
sons are born of reluctant wives. And so Hâtim, the Taite, says:
'They did not give us Taites their daughters in marriage:
but we wooed them against their will with our swords.
'And with us captivity brought no abasement to them: and
they neither toiled in making bread nor boiled the pot.
'But we commingled them with our noblest women: and they
bare us fair sons white of face [_i. e._, of pure descent].
'How often shalt thou see among us the son of a captive
bride: who staunchly thrusts through heroes when he
meets them in the fight!'"[496]
[496] ROBERTSON SMITH, _Kinship and Marriage_, 72-74;
_cf._ LETOURNEAU, _op. cit._, 115, 116; KOHLER,
"Das vorislamitische Recht der Araber," _ZVR._, VIII, 240, 241,
247.
But nothing can exceed the brutal ferocity with which sometimes the
people of Israel supplied themselves with women. The Hebrew Bible
contains various striking illustrations of the practice. Contrary
to law, which forbade intermarriage with the gentiles, members of
the military class were allowed to marry foreign women taken in
war.[497] On one occasion the tribe of Benjamin, or rather the
remnant of it which had escaped the sword of Israel, stood in sore
need of wives; but their brethren had sworn not to give them their
daughters in marriage, nor could they legally marry gentile women.
"The difficulty of procuring wives for Benjamin--which Israel made
its _own_ difficulty--was solved by the wholesale slaughter of the
inhabitants of Jabez-Gilead, whose population yielded 400 virgins;
and next by the men of Benjamin enacting a rape of the Sabines for
themselves, each man seizing and carrying off one of the daughters
of Shiloh to be his wife, on an occasion when the women met for a
festival in certain vineyards near Bethel."[498] In this case the
spoils of treachery and war were Jewish women. At another time the
alien Midianites were conquered; and at the command of Moses the
women and even the male infants which the soldiers had spared were
deliberately slaughtered. The virgins alone, thirty-two thousand in
number, were kept alive; and these were divided among the people
precisely as was the other booty, even the priests, apparently,
receiving a share.[499]
[497] Deut. 21: 10-14. _Cf._ MCLENNAN, _op. cit._, I,
43, 44, who calls attention to SELDEN'S treatise on the
rules regulating such marriages: _De jure naturali et gentium
juxta disciplinam Ebraeorum_, lib. v, cap. xiii, fol. 617.
[498] MCLENNAN, _op. cit._, I, 46, 47;
LETOURNEAU, _op. cit._, 115; _cf._ Judg., chaps. 20, 21.
[499] Numb., chap. 31; _cf._ LETOURNEAU, _op. cit._,
115, 116; HELLWALD, _Die mensch. Familie_, 183.
It would be a very easy matter to produce further examples of
a custom which appears as a simple incident of war and rapine
at certain stages of human progress. Everywhere among rude men
we find lust and physical force triumphing over the weakness of
woman. In the successful foray or in the sack of a town she is
treated merely as a part of the prey, becoming the slave, the
concubine, or even the wife of the spoiler. "But in these brutal
practices," it is patent, "there is nothing which bears even a
distant resemblance to marriage."[500] It is highly necessary, as
Letourneau rightly insists, to distinguish sharply between rape
and the marriage institution. So-called marriage by capture, he
declares, is not a form of marriage at all; "it is merely a manner
of procuring one or several wives, whatever the matrimonal system
in use."[501] As a matter of fact, actual wife-capture usually,
perhaps always, coexists with regular forms of marriage. Thus, as we
shall presently see, it frequently makes its appearance side by side
with wife-purchase; and sometimes the transition from capture to
purchase, as a means of procuring wives, may be clearly perceived.
[500] LETOURNEAU, _op. cit._, 116.
[501] _Ibid._, 110. _Cf._ the similar conclusion of
BERNHÖFT, "Principien des eur. Familienrechts," _ZVR._,
IX, 392, 393, 394; and GROSSE, _Die Formen der Familie_,
105 ff.
Accordingly Letourneau is of the opinion that the name "marriage by
capture" should be reserved for legal and pacific marriages in whose
ceremony the symbol of rape appears.[502] But even this is too broad
a use of the term, which at most can strictly be applied only to the
comparatively small number of cases in which the form of capture
is an essential part of the legal ceremony. For the symbol occurs
in every shape and in every grade of significance, from the brutal
combat of the Australian savage to the harmless prank of casting
the old shoe with which among ourselves the wedding festivities are
enlivened. It exists in connection with every phase of development,
from the rudest savagery to the most advanced type of Aryan culture;
and it is found among the same people, sometimes in various forms,
side by side with actual capture or associated with the most
refined conception of the marriage relation.[503]
[502] LETOURNEAU, _op. cit._, 116, 117 ff.
[503] DARGUN'S classification of peoples, among whom
occurs so-called marriage by capture in its various forms, will
be found useful (_Mutterrecht und Raubehe_, 78 ff., 92, 138,
139). They are divided into two major classes:
I. Peoples among whom wife-capture is an essential part of
marriage. This class comprehends three grades according to the
consent of the guardian (_Gewalthaber_) of the woman:
1. In the first grade fall peoples among whom wife-capture is
customary without any regard to the guardian: East Indians,
Slavs, Germans, and various non-Aryan peoples.
2. In the second grade fall peoples among whom it is the custom,
after the capture is effected, to compound with the guardian by
paying a penalty for the abduction or a price for the woman:
including Slavs, Lithuanians, modern Greeks of the Ionian Isles,
the Ossetes of the Caucasus, the Germans, and certain non-Aryan
peoples.
3. In the third grade are peoples among whom the abduction of
the bride, no longer accompanied by actual violence, is a legal
requirement, though preceded by consent of the guardian. Besides
non-Aryan examples, here are found the Romans, ancient Greeks,
Slavs, possibly the Germans.
II. Peoples among whom wife-capture exists as a survival in
merely symbolical form and without legal significance. Examples
among nearly all peoples in every stage of advancement.
_Cf._ the similar classification of POST,
_Familienrecht_, 139, 140.
A very few illustrations of these curious practices, selected from
the mass of material available, must here suffice.[504] Sometimes
there is a pretended abduction of the bride by the bridegroom. Among
the Eskimo of Cape York, for instance, the marriage is arranged
amicably by the parents in the infancy of the parties. Nevertheless
the wedding ceremony simulates an abduction. The bride "is obliged
by the inexorable law of custom to free herself, if possible, by
kicking and screaming with might and main, until she is safely
landed in the hut of her future lord, when she gives up the combat
very cheerfully, and takes possession of her new abode."[505]
In the Ungava District the "sanction of the parents is sometimes
obtained by favor or else bought by making certain presents of
skins, furs, and other valuables." If no parents are living, the
brothers and sisters must be favorable to the union. "When all
obstacles are removed and only the girl refuses, it is not long
before she disappears mysteriously, to remain out for two or three
nights with her best female friend, who thoroughly sympathizes with
her. They return, and before long she is abducted by her lover,
and they remain away until she proves to be thoroughly subjected
to his will."[506] In Greenland a similar practice is found.[507]
It appears in some Siouan tribes.[508] Among the Canadian Indians,
after a kind of civil marriage is solemnized before the tribal
chief, "the groom turns around, makes an obeisance, takes his wife
upon his back, and carries her to his tent amid the acclamations of
the spectators."[509] Sometimes the affair takes on a more earnest
character. Among the Bedouins of Sinai the bridegroom seizes the
woman whom he has legally purchased, drags her into her father's
tent, lifts her violently struggling upon his camel, holds her
fast while he bears her away, and finally pulls her forcibly into
his house, though her powerful resistance may be the occasion
of serious wounds.[510] Especially interesting is the form which
symbolical abduction assumes among the Kamtchadales. There the
wooer, like Jacob of old, is expected to earn his wife by serving
her parents. He takes upon himself a good part of the domestic
labor, and the term of service sometimes lasts for a number of
years. "This is surely a singular prelude to a forcible marriage by
capture; nevertheless, when the period of novitiate has expired,
the future spouse must violently and publicly triumph over the
resistance of his betrothed. She is cuirassed with garments, thick
and superimposed, with straps and with strings. Moreover, she is
guarded and defended by the women of her yourt. The marriage is
not definitely concluded until the bridegroom, surmounting all
these obstacles, succeeds in perpetrating upon his intended, so
well protected, a sort of outrage upon her modesty, which she ought
to confess by crying out _ni ni_ in a plaintive voice. But the
women and the maidens of the guard fall upon the assailant with
loud cries and heavy blows, pulling his hair, scratching his face,
and sometimes throwing him over. Victory often requires repeated
assaults, sometimes days of combat. Only when at last it is won
and the bride yields herself is the marriage concluded. The night
is then passed in the yourt of the wife, who is conducted to the
husband's house only on the following day."[511] The sham contest
takes a somewhat different form, according to Bancroft, among
the Mosquito Indians of Central America. "At noon the villagers
proceed to the home of the bridegroom," whom they accompany to the
"house of the bride where the young man seats himself before the
closed entrance on a bundle of presents intended for the bride.
The father raps at the door which is partly opened by an old woman
who asks his business, but the reply does not seem satisfactory,
for the door is slammed in his face." With great difficulty, and
only after entreaties, music, and presents have been tried, is the
door opened, "revealing the bride arrayed in her prettiest, seated
on a crickery, in the remotest corner. While all are absorbed in
examining the presents, the bridegroom dashes in, shoulders the girl
like a sack, and trots off for the mystic circle," within which a
hut has already been erected. This hut he reaches, urged on by the
frantic cries of the women, before the crowd can rescue her. "The
females, who cannot pass the ring, stand outside giving vent to
their despairing shrieks, while the men squat within the circle in
rows, facing outward.... After dark the crowd proceeds with lighted
torches to the hut, which is torn down, disclosing the married pair
sitting demurely side by side. The husband shoulders his new baggage
and is escorted to his home."[512] On the other hand, instead
of abduction, the simulated flight of the woman is of frequent
occurrence. Sometimes she seeks refuge in the house of a relative,
or conceals herself in the woods, whence she can only be brought
back with more or less violence.[513] Thus in southern California,
according to Bancroft, "where an Oleepa lover wishes to marry, he
first obtains permission from the parents. The damsel then flies
and conceals herself; the lover searches for her, and should he
succeed in finding her twice out of three times she belongs to him.
Should he be unsuccessful he waits a few weeks, and then repeats the
performance. If she again elude his search, the matter is decided
against him."[514] By the Siouan peoples elopement is "considered
undignified, and different terms are applied to a marriage by
elopement and one by parental consent."[515] Nevertheless, as
among the Omahas, the custom is sanctioned. Sometimes, according
to Dawson, "a man elopes with a woman. Her kindred have no cause
for anger" if he takes her as his wife. "Should a man get angry
because his single daughter, sister, or niece had eloped, the other
Omahas would talk about him, saying, 'that man is angry on account
of the elopement of his daughter!' They would ridicule him for his
behavior. La Flèche knew of but one case, and that a recent one,
in which a man showed anger on such an occasion. But if the woman
had been taken from her husband by another man, her kindred had a
right to be angry. Whether the woman belongs to the same tribe or
to another the man can elope with her if she consents. The Omahas
cannot understand how marriage by capture could take place, as the
woman would be sure to alarm her people by her cries."[516]
[504] On the form of capture, see DARGUN, _op.
cit._, 86-92, 102 ff., 111 ff.; HELLWALD, _op.
cit._, 286-305; GROSSE, _Die Formen der Familie_,
105 ff.; SCHROEDER, _Hochzeitsbräuche_, 14 ff.;
KOHLER, "Studien," _ZVR._, V, 334 ff.; and for examples,
KOHLER'S papers in _ZVR._, VII, 371 (New Guinea); VI,
333, 339, 399 (Roumania); IX, 325 (Bengal); XI, 57 (Azteks), 436
(Kamerun); REHME, "Das Recht der Amaxosa," _ZVR._, X,
38; LETOURNEAU, _op. cit._, 117-29; MCLENNAN,
_op. cit._, I, 9-21; WESTERMARCK, _op. cit._,
382-90; POST, _Geschlechtsgenossenschaft_, 54 ff.;
_Familienrecht_, 137-57; STARCKE, _Primitive Family_,
212 ff., 262; and illustrations in SCHMIDT, _Hochzeiten
in Thüringen_, 33, 36, 40; WOOD, _Wedding Day_, 35, 46,
59, 68, 118 ff., 121-44, _passim_; and DÜRINGSFELD,
_Hochzeitsbuch_, _passim_.
[505] HAYES, _The Open Polar Sea_, 432; quoted by
LUBBOCK, _Origin of Civilization_, 118, 119. _Cf._ also,
LETOURNEAU, _op. cit._, 117.
[506] TURNER, "Ethnology of the Ungava District," in
_XI. Rep. of Bureau of Eth._, 188. "I knew of one instance,"
he adds, "when a girl was tied to a snow house for a period of
two weeks, and not allowed to go out." Forcible abduction is
referred to by MURDOCH, "Point Barrow Expedition,"
_ibid._, IX, 412, 413. The practice also exists at Smith
Sound: BESSELS, in _Naturalist_, XVIII, Part IX;
MURDOCH, _op. cit._, 411.
[507] MURDOCH, _op. cit._, 411, citing EGEDE'S
_Greenland_.
[508] BECKWITH, "Customs of the Dakotahs," _Rep. Smith.
Inst._, 1886, Part I, 256 (abduction with purchase). Among the
Siouan Indians, according to MCGEE, there is no marriage
by capture; but captive women are sometimes espoused and girls
are occasionally abducted: _XV. Rep. of Bureau of Eth._, 178.
[509] CARVER, _Travels_, 374; LETOURNEAU,
_L'évolution du mariage_, 118; LUBBOCK, _Origin of
Civilization_, 85. A similar custom exists among the Khands of
Orissa: LUBBOCK, _op. cit._, 114; MCLENNAN,
_Studies_, I, 13-15; POST, _Familienrecht_, 144.
[510] DARGUN, _Mutterrecht und Raubehe_, 88, who names
many other peoples among whom the like custom prevails. _Cf._
LUBBOCK, _op. cit._, 123, 113 ff.; BURCKHARDT,
_Notes on the Beduins and Wahabys_, I, 263, 108, 234. _Cf._
KOHLER, "Das vorislamitische Recht der Araber," _ZVR._,
VIII, 247, 248.
[511] LETOURNEAU, _op. cit._, 118, 119; _cf._
LUBBOCK, _op. cit._, 117, 118. In Kamchatka, according
to MÜLLER, _Description de toutes les nations de
l'empire de Russie_, II, 89, "attraper une fille est leur
expression pour dire marier."--LUBBOCK, 118.
[512] BANCROFT, _Native Races_, I, 732, 733. For
further examples of "ceremonial" capture or abduction, see
PEAL, "On the 'Morong,'" _Jour. Anth. Inst._, XXII, 255;
KLEMM, _Kulturgeschichte_, IV, 27 (Tscherkessen).
[513] DARGUN, _Mutterrecht und Raubehe_, 88, 89, 108
ff.; LUBBOCK, _op. cit._, 118-20.
[514] BANCROFT, _op. cit._, I, 389.
[515] DORSEY, "Siouan Sociology," _XV. Rep. of Bureau of
Eth._, 242. Compare MCGEE, "Siouan Indians," _ibid._,
178, who says elopements are sometimes sanctioned.
[516] DORSEY, "Omaha Sociology," _III. Rep. of Bureau of
Eth._, 260, 261.
Among the Kalmucks both abduction and pretended flight are found.
According to De Hell, among the noble or princely class, after the
bridegroom has arranged with the father for the price of the girl,
he "sets out on horseback, accompanied by the chief nobles of the
horde to which he belongs, to carry her off." A "sham resistance
is always made by the people of her camp, in spite of which she
fails not to be borne away on a richly caparisoned horse, with loud
shouts and _feux de joie_."[517] A different custom is described
by Dr. Clarke. After stipulation of the price the "ceremony of
marriage among the Kalmucks is performed on horseback. A girl is
first mounted, who rides off in full speed. Her lover pursues: if he
overtakes her, she becomes his wife, and the marriage is consummated
on the spot." But the race sometimes has a different ending. "We
were assured," continues Clarke, "that no instance occurs of a
Kalmuck girl being thus caught, unless she have a partiality to
the pursuer. If she dislikes him she rides, to use the language
of English sportsmen, 'neck or nought,' until she has completely
effected her escape, or until her pursuer's horse becomes exhausted,
leaving her at liberty to return, and to be afterwards chased by
some more favored admirer."[518]
[517] XAVIER HOMMAIRE DE HELL, _Travels in the
Steppes of the Caspian Sea_ (London, 1847), 259; cited by
MCLENNAN, _Studies_, I, 15. _Cf._ LETOURNEAU,
_op. cit._, 119.
[518] CLARKE, _Travels_, I, 433; MCLENNAN,
_op. cit._, I, 15, 16. _Cf._ KOEHNE, "Das Recht der
Kalmücken," _ZVR._, IX, 462; DARGUN, _op. cit._, 89;
LUBBOCK, _op. cit._, 116, 117.
With the Kalmuck case may be compared the following, communicated
by Dawson: "One day in 1872, when the writer was on the Ponka
Reservation in Dakota, he noticed several young men on horseback,
who were waiting for a young girl to leave the mission house.
He learned that they were her suitors, and that they intended
to run a race with her after they dismounted. Whoever could
catch her would marry her; but she would take care not to let
the wrong one catch her. La Flèche and Two Crows maintain that
this is not a regular Ponka custom, and they are sure that
the girl (a widow) must have been a 'mickeda,' or 'dissolute
woman.'"--DAWSON, "Omaha Sociology," in _III. Rep. of
Bureau of Eth._, 260.
Not less interesting than the forms of flight and abduction is the
custom of elopement, implying the connivance or consent of the
woman. In Tasmania[519] and in Australia, especially among the
Kurnai, etiquette requires that the lover should run away with his
betrothed. Contrary to the common opinion, capture of women seldom
occurs in Australia, and then only as the result of war between
hostile tribes.[520] "The young Kurnai," however, "could acquire a
wife in one way only. He must run away with her. Native marriages
might be brought about in various ways. If the young man was so
fortunate as to have an unmarried sister, and to have a friend who
also had an unmarried sister, they might arrange with the girls
to run off together; or he might make his arrangements with some
eligible girl whom he fancied and who fancied him; or a girl, if
she fancied a young man, might send him a secret message asking,
'Will you find me some food?' And this was understood to be a
proposal. But in every such case it was essential to success that
the parents of the bride should be utterly ignorant of what was
about to take place. It was no use his asking for a wife excepting
under most exceptional circumstances, for he could only acquire one
in the usual manner, and that was by running off with her."[521]
According to Mr. Howitt, marriage by elopement exists among many
other Australian tribes. It seems to be the favorite method when the
parents of the girl are opposed to the match. In that case, the girl
is sometimes severely punished; or the man is supposed to retain her
only as the result of a successful combat with her friends, which
may prove to be something more than a sham combat.[522]
[519] BONWICK, _Daily Life and Origin of the
Tasmanians_, 65, 66.
[520] MCLENNAN, _op. cit._, I, 38 ff., maintains the
prevalence of capture _de facto_, especially in the form of
violent abduction; and he is followed by LUBBOCK, _op.
cit._, 111-13. According to FISON AND HOWITT, _Kamilaroi
and Kurnai_, 343 ff., women are sometimes (1) stolen from kindred
groups; (2) seized in war between related clans; or (3) captured
from alien tribes, elopement being of more frequent, and marriage
by exchange or gift of less frequent, occurrence. But it should
be remembered that elopement and purchase often go together.
MR. CURR, _The Australian Race_, I, 108, states that
women are very seldom captured from other tribes, the practice
being discouraged for fear of stirring up incessant attacks.
_Cf._ WESTERMARCK, _Human Marriage_, 384, 385; and
KOHLER, "Das Recht der Australneger," _ZVR._, VII, 350
ff.
SPENCER AND GILLEN, _Native Tribes of Cent. Australia_,
104, 105, 554-60, name four methods of obtaining wives among
these aborigines: (1) charming by means of magic; (2) capture,
being of "much rarer occurrence;" (3) elopement, a form
"intermediate" between the method of charming and that of
capture, often leading to bloody fights; (4) the custom "in
accordance with which every woman in the tribe is made _Tualcha
mura_ [prospective mother-in-law] with some man. This relation
is entered into while the male and female are in tender years;
so that the boy is thus betrothed to the prospective, unborn
daughter of his _Tualcha mura_. This is the usual method of
obtaining a wife in the Arunta and Ilpirra tribes.
[521] FISON AND HOWITT, _op. cit._, 200.
[522] _Ibid._, 348-55. _Cf._ DAWSON, _Australian
Aborigines_, 34.
The examples thus far presented have all been selected from the
matrimonial customs of non-Aryan peoples; but the symbol of capture,
in a great variety of forms and combinations, may also be found in
every subdivision of the Aryan race. It appears in the marriage
ceremonies of Sparta, Crete, and among other Hellenes.[523] The
nuptial celebration of the Romans was characterized throughout by
the show of force. For this reason they hesitated to hold weddings
on religious days, lest these should be desecrated by the seeming
violence done to the bride.[524] With the rising of the evening
star took place the _domum deductio_, or carrying home, of the
woman.[525] The girl fled to the lap of her mother, whence she was
dragged forcibly away by the bridegroom and his friends who rushed
noisily in.[526] On the way she held back, weeping and struggling,
while her attendants sang hymeneal songs, not always the most
refined in character. Thus in his nuptial hymn Catullus has the
choir of maidens exclaim:
"Say, Hesper, say, what fire of all that shine
In Heaven's great vault more cruel is than thine?
Who from the mother's arms her child can tear--
The child that clasps her mother in despair;
And to the youth, whose blood is all aflame,
Consigns the virgin sinking in her shame!
When towns are sacked, what cruelty more drear."[527]
At the door the bride makes a last effort to resist; but she is
lifted forcibly over the threshold, and even in the house she is
held fast by the arms, until at last she is fully initiated into
the sacred rites of the bridegroom's house.[528] It is noteworthy
that the custom of dragging the bride into the husband's house, or
of lifting her over the threshold, exists even now in many places.
It appears in Africa; among the Ests, Kalmucks, and Bedouins; the
Indians of southern California, and elsewhere in North America.[529]
In "China, when the bridal procession reaches the bridegroom's
house, the bride is carried into the house by a matron, and lifted
over a pan of charcoal at the door."[530]
[523] DIONYSIUS, II, 30; PLUTARCH, _Lives_,
I, 133, 134 (Lycurgus); HERODOTUS, Book VI, 65;
RAWLINSON, III, 377; MÜLLER, _Doric Races_,
II, 278; SMITH, _Dict. of Ant._, II, 130-38;
DARGUN, _op. cit._, 99, 100; MCLENNAN, _op.
cit._, I, 44 ff., 12 ff.; LUBBOCK, _op. cit._, 81.
[524] "Feriis autem vim cuiquam fleri piaculare est, ideo
tunc vitantur nuptiae, in quibus vis fieri virginibus
videtur."--MACROBIUS, _Sat._, 1, 15; _cf._
DARGUN, _op. cit._, 100.
[525] The _domum deductio_ was the second act in the patrician
marriage ceremony of _confarreatio_, and in this case it appears
to have been a necessary form. But it was probably also observed,
as a nuptial custom, in connection with plebeian free marriages
as well as in the _coemptio_: ROSSBACH, _Die römische
Ehe_, 92 ff., 116, 145, 155, 328 ff.; _idem_, _Hochzeits- und
Ehedenkmäler_, 39-118. _Cf._ MARQUARDT, _Privat-Leben_,
I, 38; SMITH, _Dict. of Ant._, II, 142; FUSTEL DE
COULANGES, _Ancient City_, 55 ff.; DARGUN, _op.
cit._, 100 ff.
[526] "Rapi simulatur virgo exgremio matris aut si ea non est, ex
proxima necessitudine, cum ad virum trahitur, quod videlicet ea
res feliciter Romulo cessit."--FESTUS, _De verb. sig.,
s. v. Rapi_.
[527] CATULLUS, _Carmina_, LXII, 20-24;
MARTIN'S translation, 89. See also CATULLUS,
LVI and LXI, for other allusions to Roman wedding customs;
and compare OVID, _Metamorphoses_, IV, 75-78;
VIRGIL, _Eclogues_, VIII, 30, and SERVIUS,
_Commentaria, ad hoc loc_. In general, ROSSBACH,
_op. cit._, 328 ff., 359; MARQUARDT, _op. cit._, I,
37-55; FRIEDLÄNDER, _Sittengeschichte_, I, 463-66;
BOUCHÉ-LECLERCQ, _Institutions romaines_, 468 ff.;
BECKER, _Gallus_, 160, 161, 153-81; PLUTARCH,
_Lives_, I, 69-73 (Romulus); SMITH, _op. cit._, II,
138 ff., 142 ff.; LETOURNEAU, _op. cit._, 124, 125;
WESTERMARCK, _op. cit._, 386; DARGUN, _op.
cit._, 100 ff.; MCLENNAN, _op. cit._, I, 13.
The symbol of capture is especially prominent in Celtic song and
custom. As in the German epics, it was not thought unseemly for the
daughter to marry the hero who had slain her father.[531] "According
to tradition the Picts robbed the Gaels of their women, so that
the latter were compelled to intermarry with aboriginal inhabitants
of the land."[532] Near the beginning of last century the following
marriage ceremony was customary in Wales: "On the morning of the
wedding day the bridegroom, accompanied by his friends on horseback,
demands the bride. Her friends, who are likewise on horseback, give
a positive refusal, upon which a mock scuffle ensues. The bride,
mounted behind her nearest kinsman, is carried off and is pursued
by the bridegroom and his friends, with loud shouts. It is not
uncommon on such an occasion to see two or three hundred sturdy
Cambro-Britons riding at full speed, crossing and jostling, to
the no small amusement of the spectators. When they have fatigued
themselves and their horses, the bridegroom is supposed to overtake
his bride. He leads her away in triumph, and the scene is concluded
with feasting and festivity."[533] Still more real is the sham
contest in Ireland. As late as the middle of last century, in
mountain districts, the bridegroom "was compelled in honor, to run
off with his betrothed, even when there was not the least need of
it."[534] On the day of home-bringing, after the purchase-contract
had been concluded, "the bridegroom and his friends rode out to meet
the bride and her friends, at the place where the contract was made.
Being come near each other the custom was of old to cast short darts
at the company that attended the bride, but at such distance that
seldom any hurt ensued. Yet it is not out of memory of man that the
Lord of Hoath on such an occasion lost an eye."[535]
[528] DARGUN, _op. cit._, 101; FUSTEL DE
COULANGES, _op. cit._, 56; ROSSBACH, _op. cit._,
359.
[529] DARGUN, _op. cit._, 88; SCHROEDER,
_Hochzeitsbräuche_, 88 ff.; LUBBOCK, _Origin
of Civilization_, 85, 86, 122, 123; POST,
_Geschlechtsgenossenschaft_, 60; MCLENNAN, _op. cit._,
I, 19. BANCROFT gives an interesting description of the
custom among the California Indians: "On the appointed day the
girl, decked in all her finery, and accompanied by her family
and relations, was carried in the arms of one of her kinsfolk
toward the house of her lover.... The party was met half-way
by a deputation from the bridegroom, one of whom now took the
young woman in his arms and carried her to the house of her
husband."--_Native Races_, I, 411.
[530] LUBBOCK, _op. cit._, 86; DAVIS, _The
Chinese_, I, 285; LETOURNEAU, _op. cit._, 144, 145;
POST, _op. cit._, 57.
DARGUN, _op. cit._, 88, 91, says, besides the custom
just mentioned, there is but one other survival of wife-capture
among the Chinese--the forbidding of friendly intercourse between
the newly wedded husband and the mother-in-law. JAMESON,
_China Review_, X, 95, thinks that in China there is no trace
of capture; but KOHLER, in _ZVR._, VI, 405, 406, gives
an example of the alleged symbol of rape among the Chinese.
_Cf._ NEUMANN, _Asiatische Studien_, I, 112; and
WESTERMARCK, _Human Marriage_, 387.
ARAKI, _Japanisches Eheschliessungsrecht_, 9, 10, denies
the former existence in Japan of purchase or capture of wives.
[531] DARGUN, _op. cit._, 102, who refers to the
legend of Launcelot and the song of Laudine and Iwein:
GERVINUS, _Geschichte der deutschen Dichtung_, 5th ed.,
I, 447, 449. For the same practice in German songs and epics see
DARGUN, _op. cit._, 119.
[532] MCLENNAN, _op. cit._, I, 68; DARGUN, _op.
cit._, 102.
[533] LORD KAMES, _History of Man_ (Edinburgh, 1807), I,
449: MCLENNAN, _op. cit._, I, 18; LUBBOCK, _op.
cit._, 125; DARGUN, _Mutterrecht und Raubehe_, 103.
[534] DARGUN, _op. cit._, 102, 103.
[535] PIERS, _Description of Westmeath_, quoted by
LUBBOCK, 26, 27; see also DARGUN, _op. cit._,
103.
A custom, almost identical with that last mentioned, prevails in
the Punjab;[536] and in many parts of India the sham contest and
the pretended abduction appear.[537] But nowhere are the symbols of
capture found in such wonderful variety and profusion as in Germany
and Slavonic lands. The mass of illustration presented by Dargun is
almost bewildering for its richness.[538] Every form and type of
ceremonial capture is there represented. Elopement, the sham combat,
abduction by an armed band, is the regular order of the wedding day
in every country of the Slavonic race. In Germany, besides these
practices, reminiscences of capture are found in a great variety
of pranks and fantastic sports. The bride is concealed from her
lover before the wedding; or, after it takes place, she is stolen
and concealed by the young people of the village. The bridegroom is
hindered from entering the home of his intended on the wedding day;
or he finds his way barred to or from the church, and is permitted
to proceed only after paying a fine or treating the crowd.[539]
Sometimes, as in Sweden, the bride is stolen by her lover and hidden
away.[540] In upper Bavaria, on the day of the wedding, she clothes
herself in mourning, black or violet;[541] and the practice of
covering or veiling her head is as familiar in Germany as it was
in ancient Rome.[542] "To veil the woman," _quên liugan_, is the
Gothic name for marriage; in Lorraine it is called _Brautjagd_, or
"bride-hunt;" while _Brautlauf_, or "bride-race," for the entire
nuptial celebration is a common designation in German lands.[543]
The original meaning of _Brautlauf_ is probably revealed in the
existing custom of chasing the bride. Thus, in Altmark, after the
wedding feast, followed by a dance, a runaway match takes place
between the newly married pair. "Two lusty young fellows take the
girl between them, the bridegroom gives her a 'start,' and the race
begins. If the lover does not succeed in overtaking her, he must
look out for the gibes of the crowd."[544]
[536] LUBBOCK, _op. cit._, 115, 116.
[537] POST, _Geschlechtsgenossenschaft_, 58;
LUBBOCK, _op. cit._, 114-16; MCLENNAN,
_op. cit._, I, 13-15. For symbols of rape in India see
KOHLER, in _ZVR._, VIII, 91, 114 (Dekkan); IX, 325
(Bengal); X, 74-77 (Bombay).
[538] For the Slavs see DARGUN, _op. cit._, 103 ff.;
and for the Germans, _ibid._, 111-40; DÜRINGSFELD,
_Hochzeitsbuch_, 22 ff., 65 ff., 113 ff., _passim_.
[539] This custom, in some form, prevails throughout Europe:
DARGUN, _op. cit._, 107 ff., 135 ff. On all these
practices compare SCHROEDER, _Hochzeitsbräuche_, 57 ff.
[540] "In Schweden wird die Braut an manchen Orten vom
Bräutigam und seinen Gehilfen tief im Heu versteckt
gefunden."--DARGUN, _op. cit._, 132;
DÜRINGSFELD, _Hochzeitsbuch_, 9.
[541] WEINHOLD, _Deutsche Frauen_, I, 389; _cf._
DARGUN, _op. cit._, 130.
[542] DARGUN, _op. cit._, 130, 131; _cf._
SCHROEDER, _op. cit._, 72-78.
[543] In the _Brautlauf_ "eine Beziehung auf den Frauenraub ist
anzunehmen, ebenso wie beim analogen Ausdruck 'Brautjagd' in
Lothringen, beim altnordischen 'qvânfang, konfang, verfang,'
d. h. Frauenfang für Ehe und beim gothischen 'quên liugan' das
Weib verhüllen, verschleiern, binden für Heiraten, sowie beim
gleichbedeutenden mittelhochdeutschen: 'der briute binden.'"
DARGUN, _op. cit._, 130; _cf._ SCHMIDT,
_Hochzeiten in Thüringen_, 40; DÜRINGSFELD, _op. cit._,
155 ff.
[544] DARGUN, _op. cit._, 130, 131. WEINHOLD,
_op. cit._, I, 384 ff., gives many examples of similar wedding
customs, and SCHMIDT, _Jus primae noctis_, 126-46,
discusses the _Brautlauf_ and like practices, citing the sources
in detail. _Cf._ GRIMM, _Rechtsalterthümer_, 419;
_idem_, _Wörterbuch_, II, 336 ff.
As illustration of social custom and mental attitude the
extraordinary prevalence of the so-called symbol of capture is
undoubtedly a fact of unusual interest; and it constitutes an
important chapter in the history of marriage. But it does not
follow, as a matter of course, that the symbol must necessarily be
regarded as a survival of actual capture. It is scarcely credible
that its origin can be traced to a single source. On the contrary,
it is far more likely that in different places, or even in the
same place, it takes its rise in a variety of causes, though these
may be less simple in character. Thus, in spite of the protest of
McLennan,[545] who asserts that "no case can be cited of a primitive
people among whom the seizing of brides is rendered necessary
by maidenly coyness," it is highly probable that the real or
assumed modesty of the woman has exerted a strong influence, here
and there, in producing the form of capture.[546] Sometimes the
simpler explanation of Starcke may suffice. Ceremonial capture, he
declares, merely represents the "sorrow of the bride on leaving her
former home; her close dependance on her family is expressed by her
lamentation."[547] Again the symbol may appear as the sign of the
subjection or subordination of the wife; for many of the so-called
minor survivals seem to have this end in view. In a society where
woman, on occasion, is seized in the bloody foray; where, often,
she is bought like a beast of burden; and where, generally, she
is exposed to the cruelty and brutality of her master, it is not
surprising that the token of the wife's humility should find its way
into the ceremony of marriage.[548] Furthermore the suggestion of
Letourneau is worthy of special consideration. The symbol of rape,
he holds, is first of all a "mental survival;" a "tradition" of an
epoch more or less remote when violence was held in high esteem and
when it was glorious to procure slaves by force of arms. The period
of rapine may have passed away, but its spirit lingers. Men love to
figure in the ceremonial of marriage the abductions of old, which
they cannot or dare not any longer commit.[549]
[545] MCLENNAN, _op. cit._, I, 10, criticises
MÜLLER, _Doric Races_, Book IV, chap, iv, sec. 2, who
accounts for the sign of rape in the Spartan ceremony on the
ground of coyness. See also ROSSBACH, _Die römische
Ehe_, 328, who holds the same view; and RAWLINSON'S
notes, _Herodotus_, Book VI, 65; FINCK, _Primitive
Love_, 123 ff., who rejects Spencer's theory.
[546] Of course, SPENCER'S reply to McLennan, already
mentioned, is most important; and his argument has not been
overthrown: _Principles of Sociology_, I, 652-56. _Cf._
WESTERMARCK, _Human Marriage_, 388, who favors Spencer's
view; and GROSSE, _Die Formen der Familie_, 107, 108,
who accepts coyness as a partial explanation, though he believes
that the symbol of capture may also be due in some cases to
the honor of having wives taken in war, while frequently it
may represent in a realistic way the release of the woman from
paternal authority and her subjection to the husband's power.
HELLWALD, _Die mensch. Familie_, 287 ff., rejects
Spencer's explanation, regarding the forms of ceremonial
rape as survivals of real capture, marking the transition to
wife-purchase and the paternal system; and LIPPERT,
_Kulturgeschichte_, II, 86 ff., 92 ff., holds a similar position.
[547] STARCKE, _Primitive Family_, 218, 262. He refers
especially to the joint or communal family--the "alpha and the
omega" of the community. But his explanation can hardly be
accepted as sufficient in all cases.
[548] _Cf._ LETOURNEAU, _L'évolution du mariage_,
117, 128, who holds that the ceremonial of capture especially
symbolizes the subjection of woman "achetée ou cédée par les
parents; il sanctionnait les droits, presque toujours excessifs,
que l'époux acquérait sur l'épousée."
[549] _Ibid._, 117. Compare the suggestions of Abercromby,
that "marriage _with_ capture--by which he understands capture
of a bride, associated with some other form of marriage, such
as that by purchase--may be regarded rather as a result of
the innate universal desire to display courage, than as a
survival of a still older practice of taking women captive in
time of war."--WESTERMARCK, _op. cit._, 388, citing
ABERCROMBY'S "Marriage Customs of the Mordvins," _Folk
Lore_, I, 454. _Cf._ LETOURNEAU, _op. cit._, 128.
"Connubial and formal capture," according to Crawley, "are very
widely spread, but are never survivals of real capture." "In
fact, formal capture, far from being itself a survival, either of
connubial or of actual hostile capture, is the ceremonial mode of
which connubial capture is the non-ceremonial; each is a living
reality, the one being material and the other ideal."[550]
[550] _Mystic Rose_, 368, 370. In harmony with his theory of
sexual taboo, he declares that it is "not the tribe from which
the bride is abducted, nor, primarily, her family and kindred,
but her sex."
Nevertheless, after all is said, it seems hard to believe that
ceremonial capture does not sometimes have a more real significance.
Often it may symbolize the coyness or mark the subjection of woman.
More frequently it may stand as a mere general reminiscence of
the good old times of force and lawlessness. Still it would be
strange, indeed, if it did not also appear as a direct survival of
actual wife-capture.[551] Granting this, however, the significance
of capture _de facto_ remains the same. We perceive more clearly
that it has very widely prevailed; yet it must still be regarded
as a mere incident of war and pillage. It has nothing whatever to
do with the institution of marriage. It could never on any wide
scale have been the normal manner of procuring wives. To assume
that wife-stealing has been a universal phase in the evolution of
marriage is not one whit more reasonable than to hold that robbery
has been a normal stage in the evolution of property.[552] In
spite of Hobbes or McLennan, it remains to be proved that a state
of chronic hostility was ever a general phase in the history of
mankind. Such a state is inconsistent with the prevalence of the
blood-feud.[553] Even the rule of exogamy among primitive peoples
does not harmonize with general wife capture. For the coexistence
of clan-exogamy and tribal endogamy means, under normal conditions,
a tendency toward peace within the tribe.[554] There is strong
reason to believe that in every period of social development consent
and contract, in some form, have been the cardinal elements of
marriage. Captured or stolen women have usually become slaves or
concubines; and, except in rare instances, the relatively small
number of them made wives must always have been insignificant as
compared with the number of wives obtained in other ways. Thus the
solution of the problem of so-called marriage by capture appears to
be similar to that of polygyny. The practice of taking several wives
is exceedingly common; but on close examination we discover that
polygyny is relatively unimportant, and that it has never been able
to displace monogamy as the normal type. So it is with the practice
of capturing women for wives. However prevalent the custom, it
does not seem ever to have greatly influenced the natural laws or
modified the fundamental motives upon which marriage and the family
rest. But the value of the evidence upon which this conclusion is
based can be thoroughly appreciated only after we have traced the
origin of contract in marriage. Let us begin with wife-purchase,
especially in its relation to the custom of capturing women.
[551] This is in effect conceded by Spencer. While rightly
rejecting the theory of systematic foreign wife-capture, as a
general phase in the development of marriage, he holds that the
symbol of rape may sometimes result from struggles for women
within the tribe, or from the resistance of the father and male
relatives of the bride.
[552] "Der Raub begründet die Ehe nur insofern, als er zugleich
jenes Zusammenleben herbeiführt; er ist Eheschliessungsform
in demselben Sinne, wie er noch nach heutigem Recht als
Besitzerwerbsform bezeichnet werden kann." It is only
a matter of _Kulturgeschichte_ and has no juridical
significance.--BERNHÖFT, "Principien des eur.
Familienrechts," _ZVR._, IX, 393.
[553] This is contrary to the common opinion, as expressed,
for instance, by DARGUN, _op. cit._, 84, but it
appears to be sustained both by reason and the facts. For an
example of the restraint of wife-capture through dread of
the feud, see CURR, _The Australian Race_, I, 108.
REHME, "Das Recht der Amaxosa," _ZVR._, X, 40, shows
that the harshness of the husband is mitigated by fear of the
vengeance of the wife's relatives; and the same fact is noted by
FISON AND HOWITT, _Kamilaroi and Kurnai_, 206. _Cf._
KOHLER, "Das Recht der Australneger," _ZVR._, VII, 349;
HELLWALD, _Die mensch. Familie_, 280 ff., 288, 289,
298; LIPPERT, _Geschichte der Familie_, 42; and his
_Kulturgeschichte_, II, 86, 87, for the restraining effects of
the blood-feud.
[554] This fact is overlooked by McLennan, who, though
maintaining that exogamy originates in wife-capture, still
believes that the reduction of capture to a system is due to the
influence of exogamy. WESTERMARCK, _op. cit._, 389,
makes the same oversight; though, of course, the horror of close
intermarriage, in case of inability to purchase, might lead to
the occasional breach of custom in the form of wife-stealing.
II. WIFE-PURCHASE AND ITS SURVIVAL IN THE MARRIAGE CEREMONY
It is a common opinion that marriage by purchase supersedes
wife-capture as a later and higher stage of development.
Such apparently is the view of McLennan, who regards the
purchase-contract as of late origin and as the principal means by
which the transition from the maternal to the paternal system of
kinship and to the individual family was brought about.[555] Post
declares that bride-purchase is a universal phase of development,
more advanced than that of wife-capture;[556] and he agrees with
McLennan in regarding it as a mark of transition.[557] A similar
position is taken by Heusler, Lippert, Kulischer, and also by
Kohler;[558] while Spencer, without asserting that either is a
stage through which marriage among all peoples has passed, thinks
that purchase is the usual substitute for violence as civilization
progresses. "We may suspect," he says, "that abduction, spite of
parents, was the primary form; that there came next the making of
compensation to escape vengeance; that this grew into the making of
presents beforehand; and that so resulted eventually the system of
purchase."[559]
[555] MCLENNAN, _Patriarchal Theory_, 45, 234, 289, 315,
320, 327, 328, 291; _cf._ WAKE, _Marriage and Kinship_,
388 ff.
[556] POST, _Geschlechtsgenossenschaft_, 63 ff.;
_Familienrecht_, 175; _Afrikanische Jurisprudenz_, I, 329 ff.;
_Ursprung des Rechts_, 56 ff.
[557] POST, _Familienrecht_, 92, 93, 96, 97. Such also
is the opinion of WAKE, _op. cit._, 390 ff.
[558] HEUSLER, _Institutionen_, II, 280; and
LIPPERT, _Geschichte der Familie_, 42, 44 ff., 95-118,
agree with McLennan in regarding purchase, at first as an
alternative for capture, as a general form of marriage through
which transition is made to the paternal system of kinship and
the modern family; KULISCHER, in _ZFE._, X, 193, 218,
and KOHLER, "Studien," _ZVR._, V, 336; "Die Ehe mit und
ohne Mundium," _ibid._, VI, 333 ff., take a like position.
[559] SPENCER, _Principles of Sociology_, I, 655.
HELLWALD, _Die mensch. Familie_, 287 ff., takes a
similar position.
It requires little argument, of course, to show that robbery
_per se_ is a less civilized method of acquiring property than
contract. That is as true among ourselves now as it has ever been
among savages. For particular individuals, even for particular
tribes, a transition from rape to contract, as the result of moral
development, will of course take place. It by no means follows,
however, that the one method has succeeded the other as a general
stage for all mankind, or indeed for a single community. Even if we
admit that "barter and commerce are comparatively late inventions
of man"[560]--an assumption which, though probable, still requires
proof--rape is not the necessary alternative in getting property,
much less in getting a wife.
[560] WESTERMARCK, _Human Marriage_, 400, 389, in
opposition to PESCHEL, _The Races of Man_, 209 ff., who
"contends that barter existed in those ages in which we find the
earliest signs of our race."
It is highly significant that wife-capture, real or pretended, is
usually found side by side with wife-purchase. They appear together
among peoples exceedingly low in the scale of progress; while
marriage by purchase very frequently occurs among rude races where
capture, unless as a mere symbol, is not found at all. Thus in
Africa purchase is very common, and it is occasionally accompanied
by actual or pretended rape.[561] So likewise real capture and
wife-purchase coexist in various parts of Europe, Asia, and America;
and wherever ceremonial capture occurs among races not far advanced
in civilization it is almost invariably combined with marriage
by purchase, or its allied forms, marriage by serving, gift, or
exchange.[562]
[561] KOHLER, "Das Negerrecht," _ZVR._, XI. 432 ff.,
436; "Studien," _ibid._, V, 350; WESTERMARCK, _op.
cit._, 384; REHME, "Das Recht der Amaxosa," _ZVR._, X,
38.
[562] For additional examples of the coexistence of real or
pretended capture with purchase or its allied forms, see
especially KOHLER, "Studien," _ZVR._, V, 334-68; _idem_,
"Indische Gewohnheitsrechte," _ibid._, VIII, 264 (Orissa);
_idem_, "Ueber das Recht der Papuas," _ibid._, VII, 378, 379
(actual purchase and capture _de facto_); also POST,
_Familienrecht_, 138 ff., 142 ff., 147 ff.; WESTERMARCK,
_op. cit._, 383, 384, 386-88, 399, 401; MCLENNAN,
_Studies_, I, 38, 39; LETOURNEAU, _op. cit._, 120, 126,
144.
If, now, the cases in which capture and purchase appear together be
carefully examined, decisive evidence is disclosed that the purchase
contract is really the normal form of marriage, while capture is
usually, if not always, merely an exceptional, even illegal, means
of procuring a wife. It is not surprising, for instance, that
uncivilized races, with well-established marital institutions,
should occasionally steal women from hostile tribes. Thus the Macas
Indians of Ecuador "acquire wives by purchase, if the woman belongs
to the same tribe, but otherwise by force."[563] In Australia wives
are often, perhaps usually, procured by exchange or purchase; and
a girl is generally betrothed when a child, sometimes as soon as
she is born.[564] Actual woman-capture exists. But, as shown by
Mr. Howitt's researches and those of Spencer and Gillen, marriage
with a captured woman is only permitted when the captor and the
captive belong to groups which may legally intermarry. Death is
sometimes the penalty for violation of the class rules in this
regard. The result is that in Australia woman-stealing "amounts
merely to a violent extension of the marital rights over a class in
one tribe to captured members of the corresponding class in another
tribe." Furthermore, if the native songs prove the existence of
wife-stealing, they also bear witness in the most decisive manner
to love and choice in Australian marriage.[565]
[563] WESTERMARCK, _op. cit._, 383.
[564] FISON AND HOWITT, _Kamilaroi and Kurnai_, 276,
285, 343 ff., 347, 348, 352-56; KOHLER, "Das Recht
der Australneger," _ZVR._, VII, 351, 352; CURR, _The
Australian Race_, I, 107; POST, _Familienrecht_, 205,
206; WESTERMARCK, _op. cit._, 390; MCLENNAN,
_op. cit._, I, 40. By the _Tualcha mura_ custom, above referred
to, a daughter is promised _before_ she is born: SPENCER AND
GILLEN, _Native Tribes of Cent. Australia_, 554-60.
Very often capture and purchase are found united in such a way
that they seem almost to be contending with each other for the
mastery.[566] This union occurs in two general forms: either the
woman elopes or is carried off without the guardian's consent,
and a reconciliation is subsequently effected through payment of
the bride-price or the rendering of a composition; or else the
stipulation of the price is made before the abduction. In the
latter case it is plain that we are dealing merely with ceremonial
capture; in the former case the significant fact is that we have to
do with a breach of the law.[567] A price is paid for the stolen
woman because, like other property, she has an economic value; or a
penalty is rendered in order to escape the blood-feud. Frequently,
however, even when abduction occurs without the consent or knowledge
of the girl's friends, the subsequent procedure in arranging the
price or the penalty is strictly regulated by custom; and this fact
may perhaps be regarded as a further proof that the forms under
consideration, in special instances, represent a transition from
capture to contract. Among the Galela and Tobelorese,[568] for
example, when a man wishes a woman of a hostile tribe or family, he
causes her to be abducted, as she goes out for water or wood, by
twenty or more of his female friends, who bind her, if she resists,
and bear her away to his house. Should the relatives of the girl
attempt a rescue by force, the villagers assemble and try to effect
a reconciliation. Pending the stipulation of the bride-money, the
girl is allowed to escape to her home, where she is carefully
watched. On the third day the friends assemble to discuss the price.
If the woman has not lived with the man, she may then refuse him;
otherwise the payment of the price is finally arranged.[569] In
case of elopement it is the custom among the same people for the
lovers to fly to the forest or to take refuge in a "prahu" on the
sea, where they remain a month. On their return they are received in
the house of the girl's parents. If the lover pays the bride-money,
the woman follows him to his house; otherwise he must remain with
his wife, and the children legally belong to the mother.[570] With
the Bataks of Sumatra good form requires that the bridegroom should
leave behind a weapon, a piece of clothing, or some similar article
as a token that he has abducted the bride. Thereupon, when the
bride-money is paid the marriage is regarded as legally complete.
Should no token be left, however, the rape is illegal and the
culprit may receive punishment.[571]
[565] MCLENNAN, _op. cit._, I, 41, 42, as evidence
of wife-capture, gives the following stanzas, taken from
GREY'S _Travels_, II, 313:
"Wherefore came you, Weerang,
In my beauty's pride,
Stealing cautiously,
Like the tawny boreang,
On an unwilling bride?
'Twas thus you stole me
From one who loved me tenderly.
A better man he was than thee,
Who having forced me thus to wed,
Now so oft deserts my bed.
Yang, yang, yang, yoh.
"Oh, where is he who won
My youthful heart;
Who oft used to bless
And called me loved one?
You, Wearang, tore apart
From his fond caress
Her whom you desert and shun;
Out upon the faithless one!
Oh, may the Boyl-yas bite and tear
Her, whom you take your bed to share.
Yang, yang, yang, yoh."
[566] DARGUN, _Mutterrecht und Raubehe_, 85-87, thinks
we have in these forms a transition from actual to formal
wife-capture. Possibly they may represent in particular instances
transition from capture to purchase. _Cf._ POST,
_Familienrecht_, 142 ff., 147 ff. for numerous examples; and
KOHLER, "Studien," _ZVR._, V, 337 ff.
[567] Compare BERNHÖFT, "Principien des eur.
Familienrechts," _ZVR._, IX, 394, 395, who believes that in
Europe rape was never a "legal form" of marriage. It was merely
a "preliminary act." Among primitive men no difference is made
between fact and law; and only in this sense can wife-capture be
regarded as the foundation of a marriage; _ibid._, 392, 393.
[568] Inhabitants of the Malay island of Djilolo. _Cf._
RIEDESEL, "Galela und Tobeloresen," _ZFE._, XVII (1885).
[569] POST, _op. cit._, 148.
[570] _Ibid._, 151, 152.
[571] _Ibid._, 148, 149. For other examples of leaving a token
see _ibid._, 149, 150.
Very naturally elopement or abduction most frequently takes place
when it is difficult or impossible to bring about the marriage in
the legal or customary way. Either the parties belong to groups
between which _jus connubii_ does not exist; or the lover is too
poor to pay the price demanded for the bride; or else the parents
refuse their consent. Here we have an example of the operation of
simple motives with which society, at all times and in all places,
has been familiar. Such marriages, it has been pointed out, are
usually marriages of inclination at least on the side of the lover,
as opposed to the conventional marriage by purchase.[572]
[572] _Ibid._, 138, 154 ff. An excellent illustration is afforded
by Kalmuck custom: KOEHNE, "Das Recht der Kalmücken,"
_ZVR._, IX, 462.
It appears, then, so far as present investigation enables us to
determine, that there is not sufficient evidence for assuming that
wife-capture, except in isolated cases, has generally grown into
marriage by purchase. As a rule, even among the lowest races,
foreign or warlike capture is an exceptional method of procuring
wives; while bride-stealing at home, though the symbol may
sometimes be sanctioned, is merely looked upon as illegal or even
immoral;[573] and, therefore, with advancing civilization it yields
to contract as the highest means of effecting a marriage.[574]
[573] Among the Nez-Percés Indians, for example, runaway matches
are not unknown, but "the woman is in such cases considered a
prostitute, and the bride's parents may seize upon the man's
property."--BANCROFT, _Native Races_, I, 277.
[574] The view presented in the text should be compared with
BERNHÖFT'S judgment. Granting that capture was crowded
out by purchase, he does not think, with DARGUN,
that it was effected through abduction by prior or subsequent
payment of the composition or price; but rather that it
gradually disappeared in consequence of the severe penalties
imposed for breach of the law and other disadvantages; so
that "in Folge dessen der schon früher durchaus übliche Kauf
zur alleinigen Eheschliessungsform wurde."--"Principien des
eur. Familienrechts," _ZVR._, IX, 401. _Cf._ the theory of
HILDEBRAND, _Ueber das Problem_, 17-22, who thinks rape
follows purchase, at least in the form of gifts, but that it is
of comparatively little importance; and MUCKE, _Horde
und Familie_, 111 ff., 139 ff., who reaches the same result in
a different way. See also DARGUN, _Mutterrecht und
Vaterrecht_. 120-22, 127, where the "illegal" nature of capture
is admitted.
Having now considered its relation to capture, let us next notice
the significance of wife-purchase as a social institution.
The custom of giving a compensation for a bride, though not
universal, exists or has existed among a vast number of peoples
in various stages of progress; and it often survives as a mere
symbol in the marriage ceremony. Kulischer, indeed, declares that
actual wife-purchase can now be discovered only among a few savage
races.[575] But this assertion seems to be wholly inconsistent
with the facts. Recent researches, notably those of Post, Kohler,
Westermarck, and various American scholars, place it beyond
question that taking a wife, as the prosaic result of an ordinary
bargain, is a familiar institution in many parts of the world.[576]
Husband-purchase also appears, but examples of it are exceedingly
rare.[577] Several methods of buying a wife are in use. The simplest
way, says Westermarck, is "to give a kinswoman in exchange for
her." This method is found in Sumatra;[578] and the Australian male
"almost invariably obtains his wife or wives, either as the survivor
of a married brother, or in exchange for his sisters, or later on
in life for his daughters."[579] Much more general is the custom,
sometimes distinguished with the name of "marriage by service," in
which the bridegroom earns his bride by serving her father. "This
practice, with which Hebrew tradition[580] has familiarized us, is
widely diffused among the uncivilized races of America, Africa,
Asia, and the Indian Archipelago."[581] In America, as elsewhere,
the custom takes a variety of forms. Among the Mayas the young
husband is required to build a house opposite the home of his bride
and live in it five or six years while he works for her father. If
the service is not faithfully performed, he is dismissed, and the
father-in-law gives his daughter to another.[582] In Yucatan the
term of service is three or four years; and so stringent is the
requirement that it is regarded as highly unseemly to shirk the
duty.[583] According to Martius, with whom Souza mainly agrees,[584]
the Brazilian native usually gains his first wife by serving her
father. For him he goes hunting and fishing. He helps him build his
hut, clear the forest, bring wood, and make canoes, weapons, and
nets. During this period the lover continues to dwell with his own
relatives, but tarries the whole day at the house of his wished-for
bride.[585] If his suit is successful, either he may take up his
abode for a while with his wife's family, or he may at once set
up a separate hut for himself. Among the Guaycurûs the son-in-law
dwells permanently with the woman's parents, but from the moment
of the marriage they avoid speaking with him; and this custom of
"bashfulness," often regarded as a survival of wife-capture and so
indirectly of mother-right, prevails very widely in America and in
other lands.[586] Service, though merely as proof of manly worth,
appears also among the Seri, "probably the most primitive tribe in
North America." The "would-be groom is required to enter the family
of the girl and demonstrate (1) his capacity as a provider and (2)
his strength of character as a man, by a year's probation."[587]
Among the Kenai of the far north the lover must perform a year's
service for his bride. "The wooing is in this wise: early some
morning he enters the abode of the fair one's father, and without
speaking a word proceeds to bring water, prepare food, and to heat
the bath-room." When asked why he performs these services, "he
answers that he desires the daughter for a wife. At the expiration
of a year, without further ceremony, he takes her home, with a
gift; but if she is not well treated by her husband, she may return
to her father, and take with her the dowry."[588] In some places
the service must all be rendered in advance; in others, the girl
is received on credit and the man serves the required term after
the marriage--a familiar example of each of these methods being
afforded by the case of Jacob and Laban's daughters.[589] Moreover,
as already seen, sometimes it is only the first or chief wife who
is earned by service, the later ones being bought in exchange for
property in the more usual way.
[575] KULISCHER, "Intercommunale Ehe durch Raub und
Kauf," _ZFE._, X, 219; _cf._ WESTERMARCK, _op. cit._,
390.
[576] In general on wife-purchase and its survivals
see POST, _Familienrecht_, 173-220; _idem_,
_Geschlechtsgenossenschaft_, 63-88; _idem_, _Afrikanische
Jurisprudenz_, I, 329 ff.; WESTERMARCK, _Human
Marriage_, 390-416; STARCKE, _Primitive Family_,
146, 232, 39, _passim_; LETOURNEAU, _L'évolution du
mariage_, 130-50; SPENCER, _Principles of Sociology_,
I, 655, 754, 755; HELLWALD, _Die mensch. Familie_,
306 ff., 323 ff.; GROSSE, _Die Formen der Familie_,
111 ff., 169 ff.; HILDEBRAND, _Recht und Sitte_, 19
ff., 31 ff.; BANCROFT, _Native Races_, as below cited;
FRIEDRICHS, "Familienstufen und Eheformen," _ZVR._, X,
213, 218, 245, 246; _idem_, "Ehe und Eherecht der griechischen
Heroenzeit," _ibid._, XI, 327 ff.; BERNHÖFT, "Principien
des eur. Familienrechts," _ibid._, IX, 400; KOHLER,
"Studien," _ibid._, V, 334-68; _idem_, "Indisches Ehe- und
Familienrecht," _ibid._, III, 345 ff.; _idem_, "Die Ehe mit und
ohne Mundium," _ibid._, VI, 333 ff.; and his other monographs,
_ibid._, VI, 167 (Burma), 365 and 405 (China); VII, 351 ff.
(Australia), 371, 372, 378 (Papuas), 382 (India), 395 (Armenia);
VIII, 85 (Gypsies), 86 (Eskimos), 87, 113 (Dekkan), 266 (Orissa),
241 ff. (Islam); IX, 326, 327 (Bengal), 334 (Chittagong), 334
(Burma); XI, 57 (Azteks), 167 (India), 419-21, 432 ff. (Kamerun);
REHME, "Das Recht der Amaxosa," _ZVR._, X, 37, 38;
POST, "Kodifikation des Rechts der Amaxosa," _ibid._,
XI, 232 ff.; HENRICI, "Das Recht der Epheneger,"
_ibid._, XI, 134; KOEHNE, "Das Recht der Kalmücken,"
_ibid._, IX, 461 ff.; LIPPERT, _Geschichte der Familie_,
42 ff., 95-118; UNGER, _Die Ehe_, 11, 17, 33, 46, 47,
77; LEIST, _Alt-arisches Jus Gentium_, 115, 116, 122
ff.; KRAUSS, _Sitte und Brauch der Südslaven_, 272 ff.,
451; JOLLY, _Ueber die rechtl. Stellung der Frauen_, 16
ff.; KAUTSKY, _Kosmos_, XII, 329 ff.; DARGUN,
_Mutterrecht und Vaterrecht_, 122-28, 149-54; HEUSLER,
_Institutionen_, II, 277-86; TILLINGHAST, "The Negro in
Africa and America," _Pub. Am. Ec. Ass._ (New York, 1902), III,
chap. v; ELLIS, _Ewe-Speaking Peoples_, 153 ff., 199 ff.
[577] This occurs, occasionally, where it is the custom for
the husband to pass into the wife's family at marriage:
POST, _Familienrecht_, 174; _cf._ SPENCER,
_Principles of Sociology_, I, 788; WESTERMARCK, _Human
Marriage_, 382, 416.
[578] WESTERMARCK, _op. cit._, 390; MARSDEN,
_History of Sumatra_, 259.
[579] WESTERMARCK, _op. cit._, 390. Compare
CURR, _The Australian Race_, I, 107; FISON AND
HOWITT, _Kamilaroi and Kurnai_, 276, 285, 343. On exchange
see KOHLER, in _ZVR._, III, 345 (India); VIII, 242
(Islam), 112 (India).
[580] LICHTSCHEIN, _Die Ehe nach mosaisch-talmud.
Auffassung_, 10, 11.
[581] WESTERMARCK, _op. cit._, 390, 391. He enumerates
the tribes in each continent among whom the custom is found. The
subject is also discussed by POST, _Familienrecht_,
197, 217-20; _idem_, _Geschlechtsgenossenschaft_, 75;
LETOURNEAU, _op. cit._, 135-37; BERNHÖFT,
"Ehe und Eherecht der griech. Heroenzeit," _ZVR._, XI, 321 ff.
For examples see KOHLER, in _ZVR._, V, 356, 357 (Malay
tribes); VI, 333, 334, 338 n. 49, 167; VIII, 113; IX, 334; XI,
420.
[582] BANCROFT, _Native Races_, I, 662.
[583] LETOURNEAU, _op. cit._, 136.
[584] The "youths serve the parents of the dames two or three
years before they are given them for wives; and they do not give
them except to those who serve them best, the men in love doing
the planting, fishing, and hunting for their fathers-in-law who
wish them to, and fetch them firewood from the forest; and when
the fathers-in-law give over to them the dames, they go and
lodge with the fathers-in-law with their wives," leaving their
own kindred: SOUZA, _Tratado Descriptivo do Brazil_
(1570-87): _Revist. Inst. Hist._, XIV, 311 ff.; _cf._ also
KOHLER, in _ZVR._, V, 352.
[585] During this courting season, among the small tribes on
the Amazon, the lover enjoys the so-called "bosom-right;" and
this custom, which appears to be identical in character with
that of "bundling" and the "proof-night," appears elsewhere
in America and in other parts of the world: MARTIUS,
_Rechtszustande_, 56; _ibid._, _Ethnographie_, I, 108; _cf._
HELLWALD, _Die mensch. Familie_, 321, 322.
[586] Among the Siouan peoples "the mother-in-law never speaks
to her son-in-law, unless on his return from war he bring her
the scalp and gun of a slain foe, in which event she is at
liberty from that moment to converse with him."--DORSEY,
"Siouan Sociology," _XV. Rep. of Bureau of Eth._, 241, 242.
Read especially DORSEY'S very interesting account
of this custom in his "Omaha Sociology," _ibid._, III, 262,
263; and compare BECKWITH, "Customs of the Dakotahs,"
_Rep. Smith. Inst._, 1886, Part I, 256, 257; and LONG,
_Expedition_, I, 253, 254.
It exists likewise in Australia: MATHEW, "Aust.
Aborigines," _Jour. R. S. N. S. Wales_, 408, 409;
DAWSON, _Aust. Aborigines_, 29; among the Kafirs and
Bushmans: FRITSCH, _Die Eingeborenen Süd-Afrikas_, 114,
445; in China: SMITH, _Village Life in China_, chap.
xxiii; in general, HELLWALD, _Die mensch. Familie_,
289, 290; LIPPERT, _Kulturgeschichte_, II, 93; and
CRAWLEY, _Mystic Rose_, 391-414, _passim_.
[587] MCGEE, "Siouan Indians," _XV. Rep. of Bureau of
Eth._, 202; and especially his "Seri Indians," _ibid._, XVII,
Part I, 279-87; _cf._ RATZEL, _Hist. of Mankind_, II,
125, who says the marriage ceremonies often mean ability to
support a family. The Point Barrow Eskimo takes his wife for
"reasons of interest." He wants her for household duties; and
conversely she desires a good hunter. The mother usually chooses
for her son the prospective bride, who is expected to serve a
probation as "kivgak" (servant) in the future mother-in-law's
kitchen; but sometimes the man goes to the woman's house to
become a member: MURDOCH, _IX. Rep. of Bureau of Eth._,
401.
[588] BANCROFT, _Native Races_, I, 134.
[589] So in New Guinea: KOHLER, in _ZVR._, VII, 371.
In some cases the "man goes over to the woman's family or
tribe to live there forever; but Dr. Starcke suggests that
this custom has a different origin from the other, being an
expression of the strong clan sentiment, and not a question
of gain."--WESTERMARCK, _Human Marriage_, 391;
STARCKE, _Primitive Family_, 39. For McLennan's view of
so-called "Beena" marriage, see above, p. 16.
According to Spencer, the "obtaining of wives by services rendered,
instead of by property paid," is a "cause of improvement in the
treatment of women," and constitutes therefore a "higher form of
marriage," developing "along with the industrial type" of society.
"Obviously, a wife long labored for is likely to be more valued than
one stolen or bought;" and the long association of the lovers during
the time of service is likely to foster more refined sentiments
than the "merely instinctive;" to imitate "something approaching
to the courtship and engagement of civilized peoples."[590] But,
on the other hand, without denying that these results may follow,
Westermarck forcibly objects that "industrial work promotes
accumulation of property, and consequently makes it easier for
the man to acquire his wife by real purchase." Serving for wives
is prevalent among such rude races as the Bushmans and Fuegians.
Hence it seems "almost probable that marriage by services is a more
archaic form than marriage by purchase; but generally they occur
simultaneously."[591]
[590] SPENCER, _Principles of Sociology_, I, 754,
755. On the modification of the servitude of the wife through
the service-contract see LETOURNEAU, _L'évolution du
mariage_, 137; BANCROFT, _Native Races_, I, 134 (Kenai).
[591] WESTERMARCK, _op. cit._, 391, 392.
By far the most common way of purchasing a wife is by giving
property in exchange.[592] Usually the amount of the price is
arranged, like any other bargain, by agreement between the
interested parties; but sometimes it is established by custom.[593]
Always where the contract is merely a commercial transaction the
price is in theory an equivalent for the economic loss sustained
by the family or _gens_ of the bride.[594] But the amount varies
in every possible way. Often it depends upon the rank or beauty of
the woman; or it may be determined by her strength and capacity for
bearing children. It varies also with the economic condition of the
times, the wife-market depending largely upon the law of supply and
demand. In hard times, or where there is an excess of women, wives
are cheap; when times are good or women scarce, the price rises in
proportion. Among peoples somewhat advanced in culture sentiment
must, of course, be taken into account. Where it is regarded as a
disgrace to accept a small compensation for a daughter, high prices
may lead to celibacy. Such, at the beginning of the past century,
was the case in Servia, where the bridegroom, in addition to the
purchase price, was expected to bestow liberal presents, not only
upon the bride and her mother, but also upon all her near relatives.
The presents were so expensive that many a "poor fellow was unable
to marry at all;" and so Black George in 1849 had a sumptuary law
enacted restricting the price of a girl to one ducat, and this must
be paid before the wedding.[595] But the bride-price "varies most
according to the circumstances of the parties, and according to the
value set on female labour."[596]
[592] On the bride-price in various countries see POST,
_Familienrecht_, 181-201; WESTERMARCK, _op. cit._,
392-94; KRAUSS, _Sitte und Brauch der Südslaven_,
273 ff.; KOHLER, "Studien," _ZVR._, V, 338 ff.;
WAKE, _Marriage and Kinship_, 191, 199 ff., 239 ff.,
215, 218, 235; BUCH, _Die Wotjäken_, 49 ff.
[593] POST, _op. cit._, 181, 183.
[594] _Ibid._, 181.
[595] KRAUSS, _Sitte und Brauch der Südslaven_, 275 ff.
But see especially TURNER, _Slavisches Familienrecht_,
22, 24, who declares that the law of Black George was purely
sumptuary, not dealing at all with the price of the bride, but
with mere presents from the man's friends. The mistake, he
says, originates in a wrong translation by Talvy, _Serbische
Volkslieder_, II, Einleit., 2. Turner in general denies the
former existence of wife-purchase among the Slavs, rejecting
SCHLÖZER'S translation of _Nestor_, I, chap. 12, 124
ff., which passage is an important source usually cited in
favor of former purchase. KOVALEVSKY, _Mod. Customs
and Anc. Laws of Russia_, 26 ff., however, follows the usual
interpretation of Nestor and the law of Black George, giving
examples of alleged wife-purchase and its survivals. _Cf._
POST, _op. cit._, 182, 183; and WESTERMARCK'S
chapter on "Marriage and Celibacy," especially, 145.
[596] WESTERMARCK, _op. cit._, 392; POST, _op.
cit._, 180 ff., 188.
Custom differs as to the time of payment. Sometimes the full price
must be given before the nuptials; often the bride is received on
credit, and the price subsequently paid in instalments. In case of
credit the wife with the children usually remains with her father,
and the husband does not gain absolute ownership or control until
the debt is paid in full.[597]
[597] _Ibid._, 193-99; KOHLER, "Studien," _ZVR._,
V, 338, 350, 351; WESTERMARCK, _op. cit._, 394;
KOHLER, in _ZVR._, VII, 371.
Among the aborigines of America, North and South, actual
wife-purchase, both by service and by property rendered, is
exceedingly common; though in some tribes, as in other parts of
the world, the transaction takes the form of a simple exchange of
gifts or of a bestowal of presents upon the bride's parents. The
price is usually paid in horses, but many other forms of property
are employed. Among the Kwakiutl, says Boaz, marriage "must be
considered a purchase, which is conducted on the same principles
as the purchase of a copper. But the object bought is not only the
woman, but also the right of membership in her clan for the future
children of the couple." For "many privileges of the clan descend
only through marriage upon the son-in-law of the possessor, who,
however, does not use them himself, but acquires them for the use
of his successor. These privileges are, of course, not given as a
present to the son-in-law, but he becomes entitled to them by paying
a certain amount of property for his wife. The wife is given to him
as a first instalment of the return payment. The crest of the clan,
its privileges, and a considerable amount of other property besides,
are given later on, when the couple have children, and the rate of
interest is the higher the greater the number of children. For one
child 200 per cent. of interest is paid; for two or more children
300 per cent. After this payment the marriage is annulled, because
the wife's father has redeemed his daughter. If she continues to
stay with her husband, she does so of her own free will.... In
order to avoid this state of affairs, the husband often makes a new
payment to his father-in-law" so that he "may have a claim to his
wife."[598]
[598] BOAZ, "Kwakiutl Indians," _Rep. Smith. Inst._,
1895, _Nat. Mus._, 358, 359.
According to Dakota usage, either "bundles" of presents are
exchanged by the interested families, or else the young man who
wooes the maiden ties "a horse at her parents' door." On returning,
if he finds the horse still there, he adds "another, keeping this
up until" his "limit is reached." If the horses are taken away,
he then enters "the lodge and takes his bride home." In case too
high a price is demanded the lover tries elsewhere with his horses,
unless, indeed, he entices the girl to elope with him; for "this
is also recognized as a marriage."[599] In "choosing a helpmate
or helpmates for his bed and board, the inland native" of the
Columbian region "makes capacity for work the standard of female
excellence, and having made an election buys a wife from her parents
by the payment of an amount of property, generally horses, which
among the southern nations must be equaled by the girl's parents....
To give away a wife without a price is in the highest degree
disgraceful to her family."[600] Among the Indians of northern
California likewise "marriage is sometimes essentially a matter of
business. The young brave must not hope to win his bride by feats
of arms or softer wooing, but must buy her of her father, like any
other chattel, and pay the price at once, or resign in favor of a
richer man. The inclinations of the girl are in nowise consulted;
no matter where her affections are placed, she goes to the highest
bidder." The social position of the bride depends upon the price she
brings; and, as a natural result of the system, the "rich old men
almost absorb the female youth and beauty of the tribe, while the
younger and poorer men must content themselves with old and ugly
wives. Hence their eagerness for that wealth which will enable them
to throw away their old wives and buy new ones."[601] Among the
California Karok, according to Powers, "a wife is seldom purchased
for less than half a string" of dentalium shell, but "when she
belongs to an aristocratic family, is pretty, and skilful in making
acorn-bread and weaving baskets, she sometimes costs as high as two
strings."[602] According to the same authority, among the Shastika
in California a girl is bought "of her father for shell-money or
horses, ten or twelve cayuse ponies being paid for a maid of great
attractions;"[603] and the Navajo bridegroom of New Mexico will pay
so exhorbitant a price as twelve horses only for a bride "possessing
unusual qualifications, such as beauty, industry and skill" in her
necessary employments.[604]
[599] BECKWITH, "Customs of the Dakotahs," _Rep. Smith.
Inst._, 1886, Part I, 255-57. Compare RIGGS, "Dakota
Grammar," _Cont. to N. A. Eth._, IX, 205, 206. "Dowries" are
exchanged among the Coast Indians: NIBLACK, _Rep. Smith.
Inst._, 1888, _Nat. Mus._, 367, 368. Bundles of presents are used
by the Abipones: KLEMM, _Kulturgeschichte_, II, 75, 76.
[600] BANCROFT, _op. cit._, I, 276, 277. According
to WAKE, _Marriage and Kinship_, 183, the Indians of
northern California are "so essentially wife purchasers that the
children of a wife who has cost her husband nothing are looked
upon as bastards and treated with contempt."
[601] BANCROFT, _op. cit._, I, 349, 350. The old men
have a similar monopoly among the Zulus: KOHLER, in
_ZVR._, V, 350.
[602] POWERS, _Tribes of California_, 22. A string of
dentalium is worth $40 or $50, _ibid._, 21.
[603] _Ibid._, 247.
[604] WESTERMARCK, _op. cit._, 292, 293;
SCHOOLCRAFT, _Indian Tribes_, IV, 214;
LETHERMAN, "Sketch of the Navajo Tribe of Indians,"
_Rep. Smith. Inst._, 1855, 294.
On wife-purchase, exchange of presents, and wedding ceremonial
among American aborigines see further MARTIUS,
_Rechtszustande_, 57, 58; _idem_, _Ethnographie_, I, 108-10;
EELLS, "Indians of Wash. Ter.," _Rep. Smith. Inst._,
1887, 665 (price of woman $100 to $400); MCGEE, "Siouan
Indians," _XV. Rep. of Bureau of Eth._, 178; DORSEY,
"Siouan Sociology," _ibid._, XV, 242; TURNER, "Ethnology
of the Ungava District," _ibid._, XI, 188; MACCAULEY,
"Seminole Indians of Florida," _ibid._, V, 495, 496
(ceremonies); KOHLER, "Studien," _ZVR._, V, 342, 352
ff.; POST, _Familienrecht_, 183; SCHOOLCRAFT,
_Indian Tribes_, II, 48.
Marriage by purchase appears also among various African
peoples.[605] The bride-price is usually rendered in cattle or
goats, the amount varying greatly even in the same tribe. From two
to thirty cows will buy a wife among the Kafirs. But, as sometimes
happens, if a youth through his friends reveals to the father a
liking for his daughter, he must in consequence pay more oxen for
his bride.[606] By the Zulu a newly bought wife is regarded as an
investment of capital from which is expected a return of interest
through her labor and the children which she bears. Should he be
disappointed in his bargain, the woman becoming sick, weak, or
remaining childless, he sends her back to her father and demands
a return of the cattle.[607] The Damara are so poor "that they
are often glad to take one cow for a daughter." The rate is much
higher among the Banyai. "In Uganda, the ordinary price of a wife is
either three or four bullocks, six sewing needles, or a small box of
percussion caps, but Mr. Wilson was often offered one in exchange
for a coat or a pair of shoes."[608] Very commonly in Africa wives
are pawned or even mortgaged, and they are devolved upon the
husband's heirs as a part of the inheritance.[609]
[605] LETOURNEAU, _L'évolution du mariage_, 137 ff.;
KOHLER, in _ZVR._, V, 350 ff.; _idem_, "Das Negerrecht,"
_ibid._, XI, 419 ff., 433, 434, 435-41; REHME, "Das
Recht der Amaxosa," _ibid._, X, 37, 38; HENRICI,
"Das Recht der Epheneger", _ibid._, XI, 134; POST,
_ibid._, XI, 232 (Amaxosa); _idem_, _Familienrecht_, 183, 184;
BUCHNER, _Kamerun_, 31 ff.; especially FRITSCH,
_Die Eingeborenen Süd-Afrikas_, 112 ff. (Kafirs), 141-44 (Zulus),
192-94 (Bechuanas), 365 (Namaquas), 444, 445 (Bushmans); and
MUNZINGER, _Ostafrikanische Studien_, 146 ff., 240, 241,
319 ff., 387; ELLIS, _Ewe-Speaking Peoples_, 153 ff.,
199 ff.
[606] WESTERMARCK, _op. cit._, 393. Compare
FRITSCH, _op. cit._, 112, 113, who says the "price
varies from some six or seven oxen to thirty or more, if the
daughter of a respectable chief is concerned." The price is
usually paid in instalments; and, according to Fritsch, among the
Kafirs the only thing which distinguishes a woman from cattle is
the fact that her lord and master may not wantonly kill her or
do her severe bodily hurt; for then the chief would demand the
composition or blood-money.
[607] In such case the father may return the woman to the husband
with a part of the cattle; and thus the higgling will proceed
till an agreement is reached: FRITSCH, _op. cit._, 143,
144; _cf._ RATZEL, _Hist. of Mankind_, II, 434 (Zulus),
370 (Bechuanas).
[608] WESTERMARCK, _op. cit._, 393; RATZEL,
_op. cit._, III, 16; WILSON AND FELKIN, _Uganda and the
Egyptian Soudan_, I, 187. Purchase or exchange of gifts exists
widely among the peoples on the northern borders of Abyssinia:
MUNZINGER, _Ostaf. Studien_, 146 ff., 240, 241, 319
ff., 387. _Cf._ also POST, _op. cit._, 183, 184;
LETOURNEAU, _op. cit._, 137 ff.; WAKE, _op.
cit._, 213-15; WAITZ, _Anthropologie_, II, 108-17 (many
examples).
[609] WAITZ, _op. cit._, II, 118, 119; KOHLER,
"Das Negerrecht," _ZVR._, XI, 422-24. In case of the death of a
husband who has made part payment for his wife, the son or other
heir pays the balance due and takes the woman: _ibid._, 423, 424.
For cases of wife-pawning among the Siamese see BASTIAN,
_Rechtsverhältnisse_, 407 ff.
Throughout the rude tribes of Asia and northern Europe, more
especially among those of the Turco-Tartaric race, wife-purchase
exists in its crudest form.[610] The _kalym_, or bride-price,
is usually rendered in horses or cattle. The young Kirgese, for
instance, has to pay from three hundred to one thousand head of
cattle or one hundred mares for a wife, five mares being reckoned
as the equivalent of a camel.[611] Ordinarily a widow depreciates
in market value as compared with a maiden;[612] but the Turcoman
is more practical, knowing the advantage of experienced service.
Though generally a young girl may be had for five camels, he is
quite willing to give fifty or even a hundred for a well-preserved
widow.[613] The Tartar maiden of northern Asia is sold by her
parents for such goods as pass current in exchange. She brings
usually a variable number of sheep, horses, or cattle; but the price
is also rendered in other commodities, such as brandy, beer, or
linen. The contract is arranged with the utmost exactness between
the parents. The future husband and wife are not even informed. In
theory, at least, "their sentiments, their desires and antipathies,
are not taken into consideration." When all is carefully specified,
the contract of sale is legally completed before witnesses; but the
bride is not delivered to the bridegroom until after the ceremony
of marriage, which takes the form of symbolical capture.[614] In
China the harsher features of this custom are somewhat softened. A
"present is given by the father of the suitor, the amount of which
is not left to the good will of the parties ... but is exactly
stipulated for by the negotiators of the marriage," the transaction
thus differing but little in form from an ordinary bargain, although
it must not always be regarded as an actual contract of sale, but
rather as a means of providing the wife's dower.[615]
[610] See particularly KOHLER, in _ZVR._, V, 334 ff.,
who gives much interesting matter relating to these peoples;
also POST, _op. cit._, 184 ff.; LETOURNEAU,
_op. cit._, 143 ff.; WESTERMARCK, _op. cit._, 393, 395;
SCHROEDER, _Hochzeitsbräuche_, _passim_; BUCH,
_Die Wotjäken_, _loc. cit._
[611] POST, _op. cit._, 185, 186. Among the Kirgese of
Semipalatinsk cattle are the unit of exchange in which other
property is reckoned: _ibid._, 186. Post gives many interesting
details as to prices of women among the Asiatic and European
peoples.
[612] POST, _ibid._, 190 ff., gives examples. "Bei
den Osseten im Kaukasus zahlt man für Wittwen die Hälfte
des Brautpreises der Jungfrau, bei den Arabern am Sinai
die Hälfte oder ein Drittel."--_Ibid._, 191. _Cf._ also
WESTERMARCK, _op. cit._, 392.
[613] LETOURNEAU, _L'évolution du mariage_, 144. Women
who have shown themselves fruitful sometimes bring more than
girls: POST, _op. cit._, 190, 191; _Die Anfänge des
Staats- und Rechtsleben_, 41 ff.; _Afrikanische Jurisprudenz_, I,
340, 341.
[614] LETOURNEAU, _op. cit._, 143, 144. _Cf._
KOEHNE, "Das Recht der Kalmücken," _ZVR._, IX, 461
ff., who shows that the Kalmuck wife is in a relatively worthy
position.
[615] WESTERMARCK, _op. cit._, 394, 395;
JAMIESON, _China Review_, X, 78. But compare
MÖLLENDORFF, _Das chinesische Familienrecht_, 21, 23,
_passim_; and SMITH, _Village Life in China_, chap.
xxiii. According to HUC, _Chinese Empire_, II, 225 ff.,
the price is paid in two instalments, one part at the signing
of the contract, another a few days before the wedding. Gifts
are also made by the bridegroom's parents; while the bride's
parents provide her with a trousseau. _Cf._ KOHLER,
"Aus dem chinesischen Civilrecht," _ZVR._, VI, 365 ff., 405,
406; LETOURNEAU, _op. cit._, 144, 145; RATZEL,
_Hist. of Mankind_, III, 493-508; KLEMM,
_Kulturgeschichte_, VI, 102-24.
In all branches of the Semitic race marriage, at some time, has
been a matter of simple sale and purchase. The married woman, in
early Arabia, was looked upon as merely a bond servant. "I charge
you with your women," says the prophet, "for they are with you
as captives." Accordingly, Robertson Smith informs us, in Arabic
lexicons _áwânî_, or "captives," is "actually used in the sense of
married women generally."[616] The _mahr_, or bride-price, was paid
to the woman's kindred. But under Islam it has become identical
with the _sadâc_, or present to the bride, the two terms being
synonymous.[617] The Arabic _mahr_ is the same as the Syriac _mahrâ_
and the Hebrew _móhar_; and in each case it is paid to the damsel's
father.[618] In the early days of Israel, apparently, the amount
of the bride-price established was fifty shekels of silver;[619]
and Boaz actually declares that he has purchased Ruth the Moabitess
to be his wife.[620] At this time, however, the context shows that
marriage among the Jews was something more than a mere bargain,
though there can be little doubt that actual wife-purchase
originally existed. "At a later date, a girl was, until puberty, at
the disposal of her father, who could either sell her or marry her
to whom he pleased, being a Hebrew. There were, however, certain
conditions, one of which was that the purchaser could not sell the
girl to another person, and if he did not espouse her, or marry
her to his son, he was bound, when she reached the age of puberty,
or at the end of six years, to aid her in obtaining freedom by
reclaiming from her father the price paid for her services."[621]
"In the betrothal by _kasaph_, of the later Talmudic law, purchase
appears as a mere survival. The man gives to his chosen bride, in
the presence of two witnesses, a piece of money or some other gift
of equal value, with the words: 'Be thou consecrated to me.' Even
the _peruta_ or smallest coin used in Palestine or some unimportant
friendly service was legally sufficient;[622] and this sham purchase
has been perpetuated in the modern Jewish ceremony of 'marrying by
the penny.'"[623]
[616] SMITH, _Kinship and Marriage_, 77 ff. He quotes
the following lines from the _Kâmil_, 270 ff.:
"Never let sister praise brother of hers: never let daughter
bewail a father's death;
"For _they_ have brought her where she is no longer a free woman,
and _they_ have banished her to the farthest ends of the
earth."
[617] SMITH, _op. cit._, 78, 79. _Cf._ on the Arabs,
LETOURNEAU, _op. cit._, 117; WESTERMARCK,
_op. cit._, 395; POST, _op. cit._, 191-93, _passim_;
especially KOHLER, "Studien," _ZVR._, V, 357 ff., and
the literature there cited; _idem_, "Ueber das vorislamitische
Recht," _ibid._, VIII, 241, 248, 259; and TORNAUW, "Das
Erbrecht nach den Verordnungen des Islams," _ibid._, V, 129-37;
FRIEDRICHS, "Das Eherecht des Islam," _ibid._, VII,
259-61, 243, 252, 272.
[618] SMITH, _op. cit._, 79.
[619] Deut. 27:29; _cf._ LICHTSCHEIN, _Die Ehe nach
mosaisch-talmudischer Auffassung_, 10.
[620] Ruth 4:10; Hosea 3:2. _Cf._ SMITH, _op. cit._, 79;
WESTERMARCK, _op. cit._, 395; and in general on Hebrew
matrimonial customs see BADER, _La femme biblique_,
1-225, 114, 115 (móhar).
[621] WAKE, _op. cit._, 237; WEILL, _La femme
juive_ (1874), 11, 12, 117 ff.
[622] LICHTSCHEIN, _Die Ehe_, 11, 12;
MIELZINER, _Jewish Law of Marriage and Divorce_, 77 ff.
This author's surmise that the symbolical marriage with money was
adopted under influence of the Roman _coemptio_ is, of course,
not well founded: _ibid._, 78 n. 2.
[623] WESTERMARCK, _op. cit._, 395. Even in the days of
Abraham the purchase price is beginning to be transformed into
a dower: "And the servant brought forth jewels of silver, and
jewels of gold, and raiment and gave them to Rebekah; he gave
also to her brother and to her mother precious things."--Gen.
24:53. _Cf._ WESTERMARCK, 408, and the authorities there
cited.
Traces of marriage by purchase, real and pretended, are also widely
diffused throughout the nations of the Aryan stock. Among the
Afghans the price of a bride is paid to the father, but he returns a
part of it as a dower.[624] In upper Albania the price is equivalent
to 600 marks; and there the symbols of rape appear in the marriage
ceremony.[625] According to Leist and Zimmer, the Hindu maiden in
Vedic times was sought of her father, not by the suitor himself, but
by a friend called the bride-wooer;[626] but, as a legal form, the
bride must be paid for by rich presents,[627] which were, however,
returned to her as a dower.[628] Here we have to do with a survival;
but originally actual wife-purchase, side by side with wife-capture,
must have existed. One of the eight forms of marriage mentioned in
the _Ordinances of Manu_ as having been proper for the two lower
castes, but here condemned as immoral,[629] is the _Âsura_ rite. It
is described as "the gift of a maiden voluntarily after presenting
to the kinsmen and the maiden wealth as much as the suitor
can."[630] Disapproval of real wife-purchase thus early produced two
very important results: the institution of dower, already mentioned,
and the _Ārsha_ rite, or ceremonial purchase, still the most common
form of marriage in India.[631] But the victory was by no means
complete. "According to Dubois, to marry and to buy a wife are in
India synonymous terms, as almost every parent makes his daughter an
article of traffic."[632]
[624] KOHLER, in _ZVR._, V, 361. _Cf._
LETOURNEAU, _op. cit._, 147, who says that so much do
they regard wives as property that in case of remarriage the
second husband has to indemnify the family of the first for the
bride-price.
[625] KOHLER, _loc. cit._, 361, 362. Even in recent
times the chieftains in middle Albania were accustomed to steal
their wives from Turkish families and to compel them to receive
Christian baptism: _ibid._, 362.
[626] The "bride-wooer" appears in many places:
SCHROEDER, _Hochzeitsbräuche_, 32-45, 200 ff.;
KOHLER, "Indische Gewohnheitsrechte," _ZVR._, VIII, 90.
[627] ZIMMER, _Altindisches Leben_, 309-11, 314.
LEIST, _Alt-arisches Jus Gentium_, 125-75, gives
a masterly discussion of marriage among the early Aryans,
with particular reference to the Hindus. With this should be
compared the able paper of KOHLER, "Indisches Ehe-
und Familienrecht," _ZVR._, III, 342-442, who differs on some
important points; and SCHRADER, _Sprachvergleichung
und Urgeschichte_, 381 ff. The "rich presents" referred to
consisted, in case of actual purchase, of one hundred cows; and
LEIST, _op. cit._, 128, notes the coincidence of this
number with one hundred beeves mentioned by HOMER,
_Iliad_, xi, l. 244.
[628] See _Apastamba_, II, 6, 13, 12.
[629] But Manu is not always consistent regarding the legality
of the actual bride-money; see _Ordinances_, IX, 93: BURNELL
AND HOPKINS, 260 n. 7; and _cf._ KOHLER, "Indisches
Ehe- und Familienrecht," _ZVR._, III, 345 n. 8.
[630] BURNELL AND HOPKINS, _Ordinances of Manu_, Lect.
III, 20, 21, 24, 31, 41 ff., 47-50. "This form is also practiced
at the present day by people claiming to be Brahmans, _e. g._,
the Caiva Brahmans, called 'Gurukkal,' in southern India, who
seldom can get wives for less than a thousand rupees. It often
happens that low-caste girls are palmed off on them."--_Ibid._,
49 n. 2. _Cf._ JOLLY, _Hindu Law of Partition_, 73-76,
for a discussion of the marriage forms; _idem_, _Ueber die
rechtliche Stellung der Frauen_, 15-18.
[631] One of the eight marriage forms mentioned by Manu with
approval: The "gift in due form of a maiden is called the
_Ārsha_ rite, when a pair or two of cattle have been legally
received from the bridegroom."--BURNELL AND HOPKINS,
_op. cit._, III, 29, 48, 49. _Cf._ JOLLY, _op. cit._,
16; LEIST, _Alt-arisches Jus Gentium_, 130-33, for
the consequences of disapproval of capture; and for the
transformation of the purchase-price into the _Çulka_ institution
or dower, _ibid._, 501 ff.
[632] WESTERMARCK, _op. cit._, 396; DUBOIS,
_A Description of the Character, Manners, and Customs of the
People of India_ (Madras, 1862), 102; _cf._ BURNELL AND
HOPKINS, _op. cit._, 49 n. 2.
The custom of rendering a compensation for a wife, Aristotle tells
us, was prevalent in ancient Greece.[633] The bride-price consisted
of "countless gifts;"[634] and in the Homeric age a maid was called
"one who yields to her parents many oxen as presents from her
suitor."[635] The Roman marriage by _coemptio_ was a conveyance
of the bride to the bridegroom through the mancipatory process
in essentially the same way as a slave or an ox was sold. Gaius
calls it an "imaginary sale;"[636] and it is usually regarded as a
reminiscence of actual wife-purchase among the primitive Romans or
their ancestors.[637] Moreover, in marriage by _usus_ the husband
gained full control of the wife by a year's prescription, exactly as
in the case of any property.[638]
[633] ARISTOTLE, _Politics_, II, viii. Compare
HRUZA, _Ehebegründung_, 8 ff.
[634] ἥδνα ἀπερείσια: _Iliad_, xvi, l. 178; _Odyssey_, xix, l.
529. _Iliad_, xi, ll. 244 f., mentions one hundred oxen as the
price. _Cf._ LEIST, _op. cit._, 128; SCHRADER,
_Sprachvergleichung und Urgeschichte_, 381, 382.
[635] "Alphesiboia": _Iliad_, xviii, l. 593; _cf._
WESTERMARCK, _op. cit._, 396; and SCHRADER,
_op. cit._, 381.
[636] POSTE, _Gaius_, I, 113, 88, and the editor's
notes, 89 ff.
[637] It is so regarded by SOHM, _Institutes of Roman
Law_, 361 n. 3; by WESTERMARCK, _op. cit._, 397;
SCHRADER, _op. cit._, 382. ROSSBACH, _Die
römische Ehe_, 65 ff., 93, 145, 245 ff., holds that there was one
original form from which both _coemptio_ and _confarreatio_ were
derived, and that it combined purchase with religious elements.
KARLOWA, _Die Formen der röm. Ehe_, 1 ff., 45.,
criticises Rossbach and holds that it remains to be proved that
_coemptio_ is a survival of real purchase, it being more likely
a particular use of _mancipatio_ arising perhaps under Servius
Tullius; but LEIST, _op. cit._, 128 ff., rejects this
view and favors the theory of survival. LANGE, _Römische
Alterthümer_, I, 105, 106; and BERNHÖFT, _Römische
Königszeit_, 186, are in practical agreement with Karlowa. _Cf._
POSTE, _Gaius_, 89 ff.; MUIRHEAD, _Private
Law of Rome_, 441-43, who rejects the theory of survival;
LETOURNEAU, _L'évolution du mariage_, 149, 150;
MONLEZUN, _Femme mariée_, 28-30.
[638] See LUBBOCK, _Origin of Civilization_, 74, who
compares _usus_ and _coemptio_. _Cf._ POSTE, _Gaius_, I,
§ 111, p. 88; LETOURNEAU, _op. cit._, 150.
Herodotus mentions wife-purchase as a Thracian custom;[639] and
until very recently it was also practiced by the Slavs.[640] The
bazar of Babylon,[641] where, according to Herodotus, girls were
publicly sold in marriage, found its counterpart not long since
in the maiden-market of the Roumanian Gainaberg.[642] The ancient
laws of Ireland reveal it in curious relation to wife-capture. The
legitimate wife is the wife who is bought. At the first marriage
the full _coibche_, or bride-price, is paid to the father; at
the second, the bride receives one-third; and at each succeeding
marriage a gradually increasing portion falls to her share.[643]
Marriage by abduction is illegal. In that case children begotten
during the first month belong to the wife's family, though they
may be conveyed to their father for a composition; and to such
conveyance he is legally entitled, when the abduction takes place
with the woman's consent. After the first month the relation
between husband and wife is partially legalized. The children
begotten thereafter belong to their father, though they are really
illegitimate and hence not entitled to full rights of inheritance.
Furthermore, a gift from the wife to the husband is void. But every
defect in the marriage is at once cured by payment and acceptance of
the _coibche_. In case the price cannot be arranged the family of
the wife are entitled to damage. They may demand that another woman
be placed at their disposal for an equal term; or they may exact a
partnership share in the earnings of the abductor.[644]
[639] HERODOTUS, v, 6: RAWLINSON, III, 180.
[640] KRAUSS, _Sitte und Brauch der Südslaven_, 272,
275; KOVALEVSKY, _Mod. Customs and Anc. Laws of Russia_,
26 ff. It existed among the Russians, Bohemians, and Pomeranians:
WESTERMARCK, _op. cit._, 397 n. 6, and the authorities
there cited; but TURNER, _Slavisches Familienrecht_, 16
ff., 22, denies the former existence of purchase.
[641] HERODOTUS, i, 196: RAWLINSON, I, 262, 263.
[642] KOHLER, "Der Mädchenmarkt auf dem Gainaberg,"
_ZVR._, VI, 398-400. The bride-price was represented by the
presents tendered by the wooer. "Einst brachten die Eltern ihre
heirathsfähigen Töchter (fetele) sammt der Mitgift auf den Berg,
wo die Männer, die petitori, um sie warben; die Mädchen sassen
dabei auf ihrer Mitgift oder standen hinter derselben. Der
Kauflustige bot Geschenke und wurde mit den Eltern einig; der
Frauenkauf war bereits ins donatorische Stadium getreten." Kohler
finds, in certain customs connected with the market, relics of
promiscuity and wife-capture.
[643] "Der Vater erhielt das volle Coibche bei der ersten Ehe
der Tochter, bei der zweiten 2/3, bei der dritten 1/2, und so
fort bis zu 1/21; der Rest scheint der Tochter zugefallen zu
sein; eine weitere verhältnissmässige Gabe, welche ebenfalls nach
Anzahl der Ehen sich verkleinerte, kam dem Haupte der Familie
zu."--KOHLER, in _ZVR._, V, 363; O'CURRY,
_Manners and Customs of the Ancient Irish_; SULLIVAN,
_Int._, I, clxxiii ff.; _Ancient Laws of Ireland_, III, 315.
[644] KOHLER, in _ZVR._, V, 363, 364; _Ancient Laws of
Ireland_, III, 401, 405, 541-45. In the early laws of Wales the
_cowyll_ corresponds to the Irish _coibche_, but it is already
transformed into a dotal portion: KOHLER, _op. cit._,
365, 366.
Finally, it may be noted, that traces of wife-purchase are found
in every branch of the Germanic race. Nowhere, perhaps, can the
evolution of the marriage contract in all its phases be studied with
more satisfaction than in the history of our own ancestors. The
subject will, therefore, be further considered in a later chapter.
III. THE ANTIQUITY OF SELF-BETROTHAL OR FREE MARRIAGE
We have now traced in broad outline the extent of wife-purchase, and
studied its general character and its principal forms. It appears
essentially as a real contract of sale between third parties.
Technically, at least, the bride and sometimes the bridegroom have
nothing to do with the transaction. We have seen incidentally that
the purchase-contract tends to become a ceremonial conveyance, and
the bride-price to disappear in the dower. This transition is a
fact of great social and legal import, and must therefore receive
further attention. But, first, another question of interest arises:
What is the place of wife-purchase in the evolution of human sexual
relations? If it was not preceded by wife-capture as a general
phase, is it the primitive method of contracting marriage? Or,
to resolve the question into a more convenient form, what is the
antiquity of mutual agreement as the basis of matrimonial union
between a man and a woman?
On its face, marriage by purchase appears as an institution which
could arise only after considerable sociological and mental progress
had been made. It implies relatively advanced ideas of property and
social organization. Precisely the same is true, in a less degree,
of wife-stealing, particularly of the systematic capture of women.
It implies for one thing an appreciation of the economic value of
woman's services which is wholly inconsistent with most primitive
conditions. There are strong indications that in the beginning
of distinctly human history marriage arose in the mutual consent
of the parties. Nay, to discover the prototype of the primitive
matrimonial contract it may be necessary to cross the boundary-line
which separates man from the lower animals. This fact seems to have
been too much neglected by writers on the history of marriage.
Post, indeed, throws out a significant suggestion. Among very low
races, he says, betrothal is a compact between the bride and the
bridegroom. As soon, however, as the genealogical organization is
further developed, marriage is changed from an individual relation
to a relation between families, and the betrothal becomes a
compact between the kindred groups. With the decay of the gentile
constitution marriage and betrothal gradually become again an
individual matter; so that in this regard the lowest and the highest
stages of culture present the same phenomena.[645]
[645] POST, _Familienrecht_, 158; _Afrikanische
Jurisprudenz_, I, 377, 378, where will be found examples of
peoples among whom free betrothal exists.
Here we have the general phases of evolution correctly indicated,
though the author lays too much stress on the influence of the
gentile system. But the view we have expressed is sustained in a
remarkable way by the elaborate researches of Westermarck. In a
series of chapters he has put it almost beyond question that a
wide liberty of sexual choice on the part of the female is the
rule among primitive men as it is among the lower animals.[646]
Everywhere, with few exceptions, the male appears as the wooer.
In the female passion is less eager.[647] She therefore requires
courting, and thus in effect she secures the chief place in the
function of sexual selection. Even in the case of the reproductive
cells of plants, where any external difference has been observed,
"the male cell behaves actively in the union, the female passively;"
and the same law prevails among lowly organized animals.[648] In
general, animals contend in some sort of rivalry for their mates.
Even the most timid during the season of love "engage in desperate
combats with each other for the possession of the female, and she,
although comparatively passive, nevertheless often exercises a
choice, selecting one of the rivals." Fighting for mates "occurs
even among insects, and is of universal prevalence in the order
of the vertebrata."[649] This method of courtship, not to be
confused with capture, may also have prevailed among "our primeval
human ancestors," and it still exists in many forms. Sometimes a
fist-fight, a battle with clubs, a duel with bows and arrows, or a
"pulling-match" settles the claims of rival suitors; and often, as
among the North American aborigines, the contest takes the form of
"wrestling for wives."[650]
[646] WESTERMARCK, _Human Marriage_, chaps. vii-xiii,
inclusive.
[647] DARWIN, _Descent of Man_, chap. viii, 222 ff.;
ESPINAS, _Des sociétés animales_, 323 ff. _Cf._
GROOS, _Die Spiele der Thiere_, 129 ff.
[648] WESTERMARCK, _op. cit._, 157; SACHS,
_Text-Book of Botany_, 897; DARWIN, _op. cit._, chap.
viii; KULISCHER, _Die geschlechtliche Zuchtwahl_, in
_ZFE._, VIII, 140 ff., who regards the dance as originally a form
of wooing. Such is also the view of ESPINAS, _op. cit._,
305 ff.; and GROOS, _op. cit._, 257 ff., 263 ff.
[649] WESTERMARCK, _op. cit._, 159, 253;
DARWIN, _op. cit._, chap. xiii; WALLACE,
_Darwinism_, 282 ff.
[650] MARTIUS, _Rechtszustande_, 589; _idem_,
_Ethnographie_, I, 111; WAITZ, _Anthropologie_,
III, 101; DARWIN, _op. cit._, chap. xix, 561 ff.;
LUBBOCK, _Origin of Civilization_, 101 ff.; and
especially WESTERMARCK, _op. cit._, 159-63, who gives
many examples.
But animals have other means of wooing their mates. To this end
the male in a much higher degree than the female is provided with
certain notes or calls, strong odors, beautiful top-knots, fine
plumes, brilliant colors, or similar ornaments. Even with the most
pugnacious species of birds, says Darwin, "it is probable that the
pairing does not depend exclusively on the mere strength and courage
of the male; for such males are generally decorated with various
ornaments, which often become more brilliant during the breeding
season, and which are sedulously displayed before the females. The
males also endeavor to charm their mates by love-notes, songs,
and antics; and the courtship is, in many instances, a prolonged
affair. Hence it is not probable that the females are indifferent
to the charms of the opposite sex, or that they are invariably
compelled to yield to the victorious males. It is more probable
that the females are excited, either before or after the conflict,
by certain males, and thus unconsciously prefer them."[651] Such
colors, love-songs, and ornaments belong to what Darwin calls the
"secondary sexual characters." For, in the sexual selection, the
"struggle is of two kinds; in the one it is between the individuals
of the same sex, generally the males, in order to drive away or kill
their rivals, the females remaining passive; whilst in the other,
the struggle is likewise between the individuals of the same sex,
in order to excite or charm those of the opposite sex, generally
the females, which no longer remain passive, but select the more
agreeable partners."[652] These characters, he thinks, depend upon
the æsthetic sense of the females. "Just as a man can give beauty,
according to his standard of taste, to his male poultry, or more
strictly can modify the beauty originally acquired by the parent
species, ... so it appears that female birds in a state of nature,
have by a long selection of the more attractive males, added to
their beauty or other attractive qualities."[653] Brilliant colors,
for instance, have thus been acquired by birds and insects because
they are "beautiful or otherwise agreeable, whereas the characters
resulting from natural selection have been acquired because they
are useful." Hence "far from co-operating with the process of
natural selection, sexual selection, as described by Mr. Darwin,
produces effects disadvantageous to the species;"[654] for many of
the secondary characters are a source of danger.[655] But Wallace,
in his well-known criticism of Darwin,[656] has established
a probability that their primary purpose is not æsthetic, but
utilitarian. "The fundamental or ground colors of animals," he
says, "are very largely protective;" and these are extended in the
line of the greatest structural and nervous development.[657] They
are therefore an evidence of a surplus of nervous energy, which
is especially active at the excitable period of courtship. So far
as the female exercises a choice, it is not because the males are
beautiful, but because they are "the most vigorous, defiant, and
mettlesome." The view of Wallace is supported in the main by that
of Westermarck, who especially emphasizes the fact that colors and
the other secondary characters are "upon the whole advantageous,
inasmuch as they make it easier for the sexes to find each other."
They exist to be _seen_. By association of ideas it is natural
that the females should find them pleasing, for to them they are
the "symbols of the most exciting period of their lives."[658]
Furthermore, "the greatest advantage is won with the least possible
peril;" for "usually they occur in males only, because of the
females' greater need of protection. They are not developed till
the age of reproduction, and they appear, in a great many species,
only during the pairing season."[659] It follows, therefore, that
sexual selection is but another aspect of natural selection, and the
secondary sexual characters are perpetuated in harmony with the law
of survival of the fittest. Whichever view is accepted, the fact
with which we are especially concerned remains: the female exercises
the function of choice.
[651] DARWIN, _op. cit._, chap. xiii, 367; chap. viii,
214 (prolonged courtship of animals). _Cf._ WESTERMARCK,
_op. cit._, 159.
[652] DARWIN, _op. cit._, chap. xxi, 614.
[653] _Ibid._, chap. viii, 211; _cf. ibid._, 496, 554.
[654] WESTERMARCK, _op. cit._, 241.
[655] DARWIN, _op. cit._, chap. xvi, 496.
[656] WALLACE, _Darwinism_, 268-300; also his _Tropical
Nature_, 221-48.
[657] Accepting TYLOR'S results in _Coloration of
Animals and Plants_ (London, 1886).
[658] WESTERMARCK, _op. cit._, 252, 249.
WALLACE has also noted the use of colors as a means of
recognition: _Darwinism_, 217 ff.; and admits that the sexual
colors may become _pleasing_ to the females, though they may
be devoid of an æsthetic sense. This alleged inconsistency is
criticised by POULTON, _Colours of Animals_, 286.
[659] WESTERMARCK, _op. cit._, 240-52, especially 241,
244, 251, 252.
For a comparison of the different theories of sexual selection
see GEDDES AND THOMPSON, _Evolution of Sex_, 3-30,
who think the truth lies between the views of Darwin and
Wallace; POULTON, _op. cit._, 284-335, who sustains
Darwin's view; and FINCK, _Primitive Love_, 229 ff.,
who attempts "to demolish the theory of sexual selection in
reference to the lower races of man as Wallace demolished it in
reference to animals." _Cf._ ESPINAS, _Des sociétés
animales_, 290 ff.; BROOKS, _Law of Heredity_ (1883),
166-241; GROOS, _Die Spiele der Thiere_, 230 ff., 267
ff., who takes a medial position between Darwin and Wallace;
WEISMANN, _Studies in the Theory of Descent_ (London,
1882), I, 161 ff.; EIMER, _Die Entstehung der Arten_
(1888); and GEDDES, articles "Reproduction," "Sex,"
"Variation and Selection," in _Encycl. Brit._
Turning now to the human race, we find that the same law prevails.
Savage and barbarous men are passionately fond of self-decoration
and display. "There are peoples," says Westermarck, "destitute
of almost everything which we regard as necessaries of life, but
there is no people so rude as not to take pleasure in ornaments;"
and he quotes Spencer's remark that, great as is the vanity of the
civilized, it is exceeded by the vanity of the uncivilized.[660]
Every sort of decoration is in use. Attention is paid especially to
the arrangement of the hair. The body is disfigured or transformed
in a variety of ways. The ears, nose, or cheeks are pierced or
bored, and rings or other ornaments inserted. The teeth are colored
or otherwise mutilated; and the body is scarred, painted, or
tattooed.[661] Now it is demonstrated by wide observation that the
primary purpose of self-decoration is the stimulation of sexual
passion. In all parts of the world the desire for it "is strongest
at the beginning of the age of puberty," all such customs "being
practiced most zealously at that period of life."[662] The "common
notion that women are by nature vainer and more addicted to dressing
and decorating themselves than men" does not hold good, at any
rate for savage and barbarous peoples. The females are, of course,
often fond of adornment, in this way trying to please or attract
their lovers. In some cases tattooing is practiced "exclusively
or predominately" by the women, and "the men sometimes wear fewer
ornaments;" but as a general rule it is the man who shows the
greater desire to beautify himself as a means of gaining the favor
of the opposite sex.[663] The woman requires to be wooed, for she is
more fastidious than man in the choice of a mate. "A Maori proverb
says, 'Let a man be ever so good-looking, he will not be much sought
after; but let a woman be ever so plain, men will still eagerly seek
after her.'"[664] Besides, it is remarked that "very generally among
the lower races, the females are even more unattractive in aspect
than the males."[665] But both sexes co-operate in the process of
selection; and as social institutions are developed man shares in it
more and more. In this way are transmitted the distinctive mental
and physical characteristics of each race which are necessary to its
survival, and upon which its standard of beauty depends.[666]
[660] WESTERMARCK, _op. cit._, 165; SPENCER,
_Principles of Sociology_, I, 71, 72. _Cf._ DARWIN, _op.
cit._, I, chap. xix, 573 ff., 556-85, for a general discussion of
the "secondary sexual characters of man."
[661] WESTERMARCK, _op. cit._, 168-82, holds that
tattooing is primarily a means of sexual attraction. The same
is true of circumcision, 201-6; and of clothing, 186-212. The
facts "appear to prove that the feeling of shame, far from
being the original cause of man's covering his body, is, on the
contrary, a result of this custom." When not due to climate,
it "owes its origin, at least in a great many cases, to the
desire of men and women to make themselves mutually attractive,"
211. But see HELLWALD, _Die mensch. Familie_, 60-96,
who ascribes clothing, not to shame, but the love of ornament;
and FINCK, _Primitive Love_, 247 ff., who entirely
rejects Westermarck's view, alleging, as a matter of fact, that
tattooing "has had from the earliest recorded times more than a
dozen practical purposes, and that its use as a stimulant of the
passion of the opposite sex probably never occurred to a savage
until it was suggested to him by a philosophizing visitor."
On circumcision see KOHLER, in _ZVR._, XI, 429, 430;
VI, 417-19, reviewing WILKEN, _De besnijdenis bij de
volken van den Indischen Archipel_ (1885); PLOSS, _Das
Kind_, I, 342 ff., 367 ff.; HELLWALD, _op. cit._, 362;
LIPPERT, _Kulturgeschichte_, II, 317, who believes
circumcision originated as a form of expiation. CRAWLEY,
_Mystic Rose_, 135 ff., regards tattooing, circumcision, and
other mutilations, not as ornaments, but as "practically" amulets
or charms to secure the safety of organs and functions.
[662] This conclusion of Westermarck is disputed by
FINCK, _op. cit._, 261 ff.
[663] WESTERMARCK, _op. cit._, 173 ff., 182 ff. _Cf._
DARWIN, _op. cit._, 577 ff., 597 ff., who thinks women
among savages are fonder of ornament than men; but the context
shows that he does not refer to our "progenitors."
[664] WESTERMARCK, _op. cit._, 253. DARWIN,
_op. cit._, chap. xx, 596 ff., holds this view, in the case of
the "secondary sexual characters," for our "progenitors."
[665] SPENCER, _op. cit._, I, 747; _cf._
WESTERMARCK, _op. cit._, 273, 277, 278.
[666] That standards of beauty depend upon racial difference
is urged by WESTERMARCK, chap. xii, especially 273
ff., against DARWIN, _op. cit._, chap. xx, 595-99, who
holds that racial differences are due to different standards of
beauty. On female beauty and ideals of beauty among all races see
PLOSS'S full and interesting discussion: _Das Weib_, I,
59-124.
If the law of sexual selection has been rightly stated, it would,
indeed, be strange if women among low races should not preserve some
liberty of choice in marriage. In the savage state, says Darwin, man
keeps woman in a far more abject position "than does the male of any
other animal;" and hence it is not surprising that "he should have
gained the power of selection."[667] But it must not be forgotten
that even the lowest races of which we have any knowledge have
advanced far beyond the primordial state of man. Darwin himself
comes to the conclusion, after examining the evidence, that savage
"women are not in quite so abject" a condition as is commonly
supposed;[668] and the facts show that in a vast number of cases
they have a decisive, though not always a legal, voice in the choice
of a husband.
[667] DARWIN, _op. cit._, chap. xx, 597.
[668] _Ibid._, chap. xx, 597-99.
According to Post, the right of assent is subject to the following
principal variations:[669] (1) Among a large number of peoples
the contract or betrothal is made by the parents or relatives,
no regard at all being had to the will either of the bride or
bridegroom.[670] Infant-marriage or betrothal, in particular, is of
frequent occurrence; and sometimes children are promised even before
they are born. Naturally such engagements are often merely contracts
of sale; but usually they have a deeper social significance as a
means of extending and more firmly knitting the bonds of family
or gentile union. This custom implies something more than mere
brutal indifference to the wishes of the children; and, besides, it
serves the ethical purpose of restricting the sexual liberty of
the bride.[671] Such a contract is not always legally binding upon
the children, especially the bridegroom; and when it is binding,
the betrothed often disregard it, or the bride runs away with
another man.[672] (2) In some cases the consent of the bride alone
is ignored;[673] (3) in others her approval is asked _pro forma_,
but refusal never occurs and would not be tolerated;[674] (4) or
the choice may, in fact, be left to the young man and woman, while
the right of betrothal belongs to the guardian. With the Bataks
of Sumatra, for instance, vows and pledges are exchanged by the
lovers; and in case the girl is betrothed by her parents against her
will, she may run away to the giver of the love-pledge, who is then
compelled to receive her. A similar rule prevails in Timor and among
the Tscherkese of Asia Minor.[675] Sometimes (5) the young people
are legally bound to submit to the choice of the guardian only in
case of the first marriage, which, accordingly, is often dissolved
after a few years or even a few months; while the second marriage,
being usually a marriage of inclination, may long endure.[676]
Again (6), even among such rude peoples as the Timorlaut islanders,
the consent of the betrothed is sometimes essential to a valid
marriage;[677] and still more striking are those cases (7) in which
the bride and bridegroom themselves appear as the contracting
parties, the right of assent now belonging to the parent or
guardian. The legal conditions are thus reversed.
[669] POST, _Familienrecht_, 166-71, 163, 157 ff.
[670] In such cases the right of betrothal belongs either to
the parents, to the families, or to particular relatives, as,
for instance, to the mother, eldest brother, or maternal uncle
of the bride: POST, _Familienrecht_, 162-64, 166, 167;
_idem_, _Anfänge des Staats- und Rechtslebens_, 32, 33. See
WESTERMARCK, _op. cit._, 213-15, notes, for examples. In
West-Australia the consent of the whole tribe is necessary to a
girl's marriage: WESTERMARCK, 215; KOHLER, in
_ZVR._, III, 357 ff.; VI, 398.
[671] According to POST, _Familienrecht_, 205, the
purpose is always _Familienverbindungen anzuknüpfen_; and
usually the betrothed bride is held strictly to a life of
chastity, even among peoples where such is not the custom for
girls: POST, _op. cit._, 212, 213; LIPPERT,
_Geschichte der Familie_, 149, 150. Of this, good examples are
found in the South Sea: KOHLER, "Studien," _ZVR._, V,
356; see also STARCKE, _Primitive Family_, 212, 256,
257; WAKE, _Marriage and Kinship_, 78-80; POST,
_Geschlechtsgenossenschaft_, 80; _Ursprung_, 57; _Anfänge des
Staats- und Rechtslebens_, 35; _Afrikanische Jurisprudenz_,
I, 365-71; WESTERMARCK, _op. cit._, 213, 214. On
early betrothals see further KOHLER, in _ZVR._, V,
342, (Aleuts); VI, 166 (Burma); VII, 352 (Australia), 372 (New
Guinea); X, 99-103, 116 (Bombay); XI, 164 (India); SPENCER
AND GILLEN, _Native Tribes of Cent. Australia_, 558.
[672] POST, _Familienrecht_, 213. Of course, in case of
breach, the parents or other contracting parties are subject to
fine, damage, or restitution, in a variety of ways: _ibid._, 214;
WESTERMARCK, _op. cit._, 224.
[673] POST, _Afrikanische Jurisprudenz_, I, 362, 363,
gives many examples. _Cf. idem_, _Familienrecht_, 167.
[674] This is the rule among Jackuts, the Sarts of Turkestan,
and the southern Slavs: POST, _op. cit._, 167, 168;
KRAUSS, _Sitte und Brauch der Südslaven_, 320.
[675] POST, _op. cit._, 168, 169.
[676] Such is the case among the Menangkabaw Malays of Sumatra;
and, according to Burmese law, the woman who has once been
married has no guardian: POST, _op. cit._, 169.
[677] POST, _op. cit._, 169.
Free marriage in one or the other of these forms is very widely
diffused, though it may not always be possible to determine the
exact legal relation of the guardian and the betrothed.[678]
Sometimes self-betrothal and contract by the guardian are found side
by side. Such is the case in Rotuma; and among the Turks of middle
Asia the conventional marriage, in which the couple are contracted
by their fathers in childhood, is found in connection with natural
marriage which rests upon the vows of the betrothed.[679]
[678] For many examples in America, Africa, Asia, and the
island groups, see WESTERMARCK, _op. cit._, 215-21;
DARWIN, _op. cit._, chap. xx, 597-99.
[679] POST, _op. cit._, 158; VÁMBÉRY, _Das
Türkenvolk_ (1885), 229, 230.
IV. PRIMITIVE FREE MARRIAGE SURVIVING WITH PURCHASE, AND THE DECAY
OF THE PURCHASE-CONTRACT
It is commonly assumed that where marriage by purchase exists woman
must necessarily be in an abject condition. The "average facts,"
says Spencer, "show that at first women are regarded by men simply
as property, and continue to be so regarded through several later
stages: they are valued as domestic cattle."[680] Such also is
the opinion of Letourneau, who takes a very pessimistic view of
the early condition of woman. During a long period her wishes in
marriage were utterly ignored. The sale of women and children for
slaves or wives is the result of brute force and the primitive
despotism of man. Marriage by purchase, he says, "implies a profound
disdain of woman, her complete assimilation to movables, to cattle,
to things in general."[681] Doubtless among low races the lot of
woman is often extremely harsh and degraded. The examples already
given demonstrate that she is sometimes treated merely as an object
of sale or exchange; and where polygyny exists wife-purchase
may have a strong tendency to reduce her to slavery.[682] But a
more careful examination of the evidence proves that marriage by
purchase is not inconsistent with a high degree of matrimonial
choice on the part of the woman. As already suggested, purchase is
far from being the original method of contracting marriage. Like
the patriarchal authority in general,[683] by which the liberty of
the son as well as that of the daughter is sometimes destroyed,
it is of comparatively late origin, arising with the institution
of property and an appreciation of the economic value of labor.
"It may be said generally that in a state of nature every grown-up
individual earns his own living. Hence there is no slavery, as there
is, properly speaking, no labour." A man then had no reason "to
retain his full-grown daughter; she might go away, and marry at her
pleasure."[684]
[680] SPENCER, _Principles of Sociology_, I, 748, 750.
Elsewhere he says: "The only limit to the brutality women are
subjected to by men of the lowest races is the inability to
live and propagate under greater;" but, he adds, savage women
are just as selfish and just as cruel as men, they only lack
the _power_. A captured or purchased woman is an "absolute
possession."--_Ibid._, I, 746-49.
[681] LETOURNEAU, _L'évolution du mariage_, 150, 130
ff. KOHLER, in _ZVR._, V, 338 ff.; VI, 342, 343; VIII,
242; XI, 416, 423, appears to take the same position. _Cf._
also his "Indisches Ehe- und Familienrecht," _ZVR._, III, 357
ff.; and LUBBOCK, _Origin of Civilization_, 99 ff.;
POST, _Familienrecht_, 201-5; FRIEDRICHS, in
_ZVR._, VIII, 377, notes; BERNHÖFT, in _ZVR._, IV, 234;
_idem_, _Staat und Recht der röm. Königszeit_, 196 ff.
[682] WAKE, _Marriage and Kinship_, 180, 183, 198 ff.,
holds, against Kames, that even in the case of polygyny the evil
effects of purchase may be exaggerated, though they are often bad.
[683] WESTERMARCK, _op. cit._, 223-35, gives a detailed
discussion of the paternal power as to the liberty of the son.
Very often, though not so generally as the daughter, he is denied
freedom of choice in marriage.
[684] _Ibid._, 222. STARCKE, _Primitive Family_, 256,
257, emphasizes the importance of female labor in early marriage;
and this fact is well established by Grosse in the book already
analyzed.
In marriage by purchase there is still a chance for the wooer;
and the unwilling maiden has many an opportunity to avoid a
husband whom she does not fancy.[685] Elopement has its chief
significance in this connection. Instead of being necessarily a
relic of wife-capture, it is rather the means by which the lovers,
particularly the bride, maintain the actual right to dispose of
themselves in marriage.[686] Many illustrations of this fact might
be presented. Among the aborigines of North and South America,
where, as we have seen, wife-purchase and even wife-capture are
common, woman possesses a wide liberty of choice. In arctic regions
the wife sometimes runs away from the husband forced upon her and
joins her lover;[687] and in general the maiden often thus escapes
a detested suitor. Such is the case, for instance, among the
Greenlanders, Dakotas, Caribs, and Patagonians;[688] while among
the Abipones, according to Dobrizhoffer, when a man thinks fit to
choose a wife, he must bargain with the parents of the girl about
the price. But "it frequently happens that the girl rescinds what
had been settled and agreed upon ... obstinately rejecting the very
mention of marriage. Many girls, through fear of being compelled
to marry, have concealed themselves in the recesses of the woods
or lakes; seeming to dread the assaults of tigers less than the
untried nuptials. Some of them, just before they are to be brought
to the bridegroom's house, fly to the chapel, and there, hidden
behind the altar, elude the threats and the expectation of the
unwelcome" suitor.[689] In exactly the same way she gains her will
in Tierra del Fuego, where the lover serves for his bride;[690]
and among the same people "the eagerness with which the women
seek for young husbands is surprising, but even more surprising
is the fact that they nearly always attain their ends."[691] The
Comanche suitor must buy his bride of her parents; but unless she
manifests her willingness by leading his pony into the stall, the
bargain is void.[692] A similar freedom in choosing her mate is
asserted by the woman of the Pueblos, Creeks, Chippewas, and various
other tribes;[693] while the existence of real affection and true
courtship is shown by the fact that suicide sometimes happens on
account of disappointed love.[694]
[685] On the place of the wooer in wife-purchase see
LEIST, _Alt-arisches Jus Gentium_, 130 ff. What Spencer
says of marriage by service is true in a high degree of marriage
by purchase in general: SPENCER, _op. cit._, I, 754, 755.
[686] On the radical difference between elopement and capture
see FISON AND HOWITT, _Kamilaroi and Kurnai_, 354,
343, 348-51; and compare PLOSS, _Das Weib_, I, 53, 54;
WESTERMARCK, _op. cit._, 223.
[687] DARWIN, _op. cit._, chap. xx, 597, 598.
Among the Point Barrow Eskimo marriages are formed for "reasons
of interest." Sometimes a wife is taken against her will. Yet
"women appear to stand on a footing of perfect equality with the
men both in the family and in the community." The "wife is the
constant and trusted companion of the man in everything except
the hunt, and her opinion is sought in every bargain or other
important undertaking."--MURDOCH, in _IX. Rep. of Bureau
of Eth._, 410, 413, 414. _Cf._ EGEDE, _Greenland_, 144.
[688] WESTERMARCK, _op. cit._, 216, 9. CAPTAIN
MUSTERS, _At Home with the Patagonians_ (1872), affirms
that the finest trait of the Patagonian "Tehuelches character
is 'their love for their wives and children; matrimonial
disputes are rare, and wife-beating unknown; and the intense
grief with which the loss of a wife is mourned is certainly not
'civilized,' for the widower will destroy all his stock and burn
all his possessions,' and possibly become careless of his life."
A similar affection is shown among the Eskimo, who are also
polygynous: WAKE, _Marriage and Kinship_, 184, 185.
Free courtship exists among the Omahas: DORSEY, "Omaha
Sociology," _III. Rep. of Bureau of Eth._, 259, 260; and in
general there is sometimes individual choice among the Siouan
peoples: _idem_, "Siouan Sociology," _ibid._, XV, 178.
[689] DOBRIZHOFFER, _Account_, II, 207; _cf._
DARWIN, _op. cit._, chap. xx, 598; and PLOSS,
_Das Weib_, I, 53, 54; KLEMM, _Kulturgeschichte_, II, 75.
[690] DARWIN, _op. cit._, chap. xx, 598;
WESTERMARCK, _op. cit._, 216.
[691] WESTERMARCK, _op. cit._, 216, and authorities
there cited.
[692] PLOSS, _op. cit._, I, 53.
[693] Among the Kaniagmuts, Thlinkets, Nutkas, and the
South American Guanás: WESTERMARCK, _op. cit._,
215, 216. Divorce is free among the South American Charuas:
DARWIN, _op. cit._, 598. For evidence of courtship and
consent among the California Indians see BANCROFT,
_Native Races_, I, 398, 411, 412. SPENCER, _op. cit._,
I, 722, 723, 754, 755, discusses the favorable position of
women among the American aborigines and elsewhere, due in part
to "likeness of occupations between the sexes." For further
illustrations of freedom of choice or of liberty in the family
see PRATZ, _Hist. de la Louisiane_, II, 385, 389;
WAITZ, _Anthropologie_, III, 101, 103; RATZEL,
_Hist. of Mankind_, II, 125, 128.
[694] RIGGS, "Dakota Grammar," _Cont. N. A. Eth._,
IX, 206, gives an example. _Cf._ also the cases mentioned by
WESTERMARCK, _op. cit._, 215.
Free marriage, very often in connection with wife-purchase,
prevails widely throughout the African peoples. Accounts differ as
to the Kafirs. According to Fritsch, a woman is bought like any
chattel.[695] But Leslie declares that generally the man first tries
to win her consent; for it is "a mistake to imagine that a girl is
sold by her father in the same manner, and with the same authority,
with which he would dispose of a cow."[696] On the other hand,
Fritsch shows that the heart of the Bechuana, and especially that
of the despised Bushman, "is not so full of his oxen," the woman
having some liberty of choice.[697] Winwood Reade informed Darwin,
with respect to the negroes of western Africa, that "the women, at
least among the more intelligent pagan tribes, have no difficulty in
getting the husbands whom they may desire, although it is considered
unwomanly to ask a man to marry them. They are quite capable of
falling in love, and of forming tender, passionate, and faithful
attachments."[698]
[695] FRITSCH, _Die Eingeborenen Süd-Afrikas_, 112, 113;
with whom WAKE, _op. cit._, 213, 215, agrees.
[696] WESTERMARCK, _op. cit._, 220; LESLIE,
_Among the Zulus and Amatongas_, 194; _cf._ also PLOSS,
_Das Weib_, I, 54; DARWIN, _op. cit._, 598. The despotic
power of the husband is modified in practice through influence of
the wife's friends: REHME, in _ZVR._, X, 39, 40, 41, 42;
RATZEL, _Hist. of Mankind_, II, 434.
[697] FRITSCH, _Die Eingeborenen Süd-Afrikas_, 192, 444,
445.
[698] DARWIN, _op. cit._, 599. Freedom of choice in
varying degrees, often with wife-purchase, prevails among the
Ashantees, Loangos, Sognos, Shulis, Mádis, Marutses, Hottentots,
and Gold Coast negroes: WESTERMARCK, _op. cit._, 220,
221; PLOSS, _op. cit._, I, 54. _Cf._ WAKE, _op.
cit._, 214, 215; MUNZINGER, _Ostaf. Studien_, 146, 207,
324; WAITZ, _Anthropologie_, II, 116, 117.
Throughout all Micronesia and in many parts of Melanesia marriage
implies the consent of the betrothed. The New Caledonian girl is
thus always consulted; and, if forced to obey her parents, she takes
the first opportunity to elope with the man of her choice.[699]
In the New Britain group "after the man has worked for years to
pay for his wife, and is finally in a position to take her to his
house, she may refuse to go, and he cannot claim back from the
parents the large sums he has paid them in yams, cocoanuts, and
sugar-canes."[700] Betrothal by the guardian and self-marriage
appear together in Burma. In the first case the daughter is given
by her father in return for service and gifts. Her consent is not
essential; but if she runs away from her husband more than three
times, she is free, and her parents retain the gifts. In the second
case the girl elopes without the guardian's consent, a recognized
marriage relation being thus established, though the guardian
may reclaim the bride. Should she, however, return thrice to her
husband, she remains his legal wife.[701] "Among the Minahassers
of Celebes courtship or love-making 'is always strictly an affair
of the heart and not in any way dependent upon the consent or even
wish of the parents.'"[702] The Rejang suitor of Sumatra elopes with
the girl and pays the price afterwards; and such is often the case
in Australia, among the uncivilized tribes of India, and throughout
the Indian Archipelago. In all these cases, as well as among some of
the Turanian peoples of central and northern Asia, the choice of the
woman, even without elopement, is usually decisive, though often the
arrangement of the marriage belongs legally to the parents.[703]
[699] For these examples see WESTERMARCK, _op. cit._,
218, notes.
[700] WESTERMARCK, _op. cit._, 218. According to
KOHLER, "Studien," _ZVR._, V, 385, actual wife-capture
still exists in the New Britain islands. "Es kommt vor,
dass die Frau dem ersten Mann weggenommen wird und dass
die Leiche des getödteten ersten Mannes das Hochzeitsmahl
bildet."--POWELL, "Unter den Cannibalen," _Globus_
(1884), 328.
[701] KOHLER, "Das Recht der Birmannen," _ZVR._, VI,
166, 168.
[702] WESTERMARCK, _op. cit._, 219.
[703] See WESTERMARCK, _op. cit._, 218-20, and the
many examples there mentioned, with citation of the sources;
and compare POST, _Familienrecht_, 166, 168, 169,
_passim_; KOHLER, in _ZVR._, V, 354 ff.; WAKE,
_op. cit._, 215, 216; PRJÉVALSKI, _Mongolie et pays
des Tangoutes_ (1880), 47, 207; HUC, _Travels in
Tartary_, I, 52, 185. For female choice in Australia: FISON
AND HOWITT, _Kamilaroi and Kurnai_, 234, 242, 326, 327
(Kurnai); 276, 280, 289, 348-54 (elopement). The Kalmuck wife is
a free woman: KOEHNE, "Das Recht der Kalmücken," _ZVR._,
IX, 463; and WAKE gives interesting proofs of the
coexistence of real affection with polygyny and purchase: _op.
cit._, 218.
It is very easy to exaggerate the bright as well as the dark
features of primitive social life. The reports of travelers, often
untrained in the interpretation of the facts which they observe, are
notoriously untrustworthy. It is extremely difficult to discern the
motives which actuate men in a stage of culture remote from our own.
Nevertheless it seems certain that the position of uncivilized woman
with respect to marriage is not quite so hopeless as is generally
imagined. The facts appear to demonstrate that woman's original
liberty of selection has never been entirely lost. It is evident
that wife-purchase, though sometimes the means of degradation, even
of marital bondage, is compatible with a high degree of matrimonial
choice. The ideas which influence the "uncivilized" man in selling
his daughter are probably often very similar to those which govern
the thrifty father in modern society when he insists on securing
a good "match" for his child. The price is regarded as a fair
equivalent for the services to which the parent is justly entitled
in return for rearing the girl.[704] The Kafir maiden who brings a
good price from her suitor is not therefore necessarily a "chattel"
any more than is the daughter whose labor the civilized parent lets
out for hire.[705] A high price may be looked upon also as a proper
recognition of the rank or of the mental and physical attractions
of the bride.[706] Furthermore, it is significant that actual
bride-purchase may coexist with advanced ethical and religious
conceptions of the marriage state. Such, according to Kohler, is
the case in the Punjab, where the courts under British rule have
decided that the sale of a woman to be a wife is not punishable
as a crime under the statute forbidding the sale of a human being
into slavery;[707] and Leist has shown that in the _dharma_ period
of early Aryan history the purchased wife was not regarded as a
"thing," but in the fullest sense as a free wife entitled to share
the _sacra_ of the husband's house. Nay, the actual payment of
the legal bride-money in certain cases was the only means through
which marriage by purchase could reach the proper ethical end of
legitimate marriage: the birth of a son to perpetuate the ancestral
worship.[708]
[704] So among the Kafirs: SHOOTER, _The Kafirs of Natal
and the Zulu Country_ (London, 1857), 49: WESTERMARCK,
_op. cit._, 402; and among other tribes: _ibid._, 402, note.
[705] Compare the remark of WAKE, _op. cit._, 199, who,
in speaking of purchase in its relations to polygyny, says: "It
may be doubted whether the ideas which govern such a transaction
(wife-purchase) are very different from those which guide persons
under similar circumstances in monogamatic societies. When the
savage buys a girl to be his wife, it is for the purpose of
having, if not a companion, a helpmate, and a mother of his
children, and her father parts with her for those objects."
[706] Accordingly, it is sometimes regarded as a disgrace to
marry without payment of the bride-price; and the girl takes
pride in the amount she brings to her father. For examples
see WAKE, _op. cit._, 183, 191; BANCROFT,
_Native Races_, I, 277, 349, 350; POWERS, _Tribes of
California_, 22, 56.
[707] KOHLER, "Die Gewohnheitsrechte des Pendschabs,"
_ZVR._, VII, 227. _Cf._ TUPPER, _Punjab Customary Law_,
III, 9, who gives the decision referred to; and LEIST,
_Alt-arisches Jus Gentium_, 46, 47.
[708] We have here the case of an "appointed daughter." The son
of a "brotherless maiden" was sometimes reserved to be the heir
of her father, not of her husband. How could a man marry such
a brotherless girl and secure himself in the possession of his
child, to continue his own hearth-worship? This might be effected
by payment of the "official" price of one hundred cows and one
wagon (_Wagen_), and this was so even in the later period when
the law-books frowned upon wife-purchase: LEIST, _op.
cit._, 110 n. 10, 127 n. 3, 130, 131, and the references to the
ancient law-books there given.
Another fact, sometimes misinterpreted, seems to point clearly to
the persistence of original free marriage. It is highly significant
that wife-purchase appears never to have existed at all among a
certain number of very low races, with which nevertheless marriage
rests on the free consent of the parties. Such is the case among
the California Wintun, the Alaskan Yukonikhotana, the Andamanese,
the Chittagong hill tribes, and certain African peoples. Among the
"Pádams, one of the lowest peoples of India, it is customary for a
lover to show his inclinations whilst courting by presenting his
sweetheart and her parents with small delicacies, such as field mice
and squirrels, though the parents seldom interfere with the young
couple's designs, and it would be regarded as an indelible disgrace
to barter a child's happiness for money."[709] So likewise with the
Veddahs[710] either no presents are given on either side, or else
the ceremony consists simply in offering some food to the parents
of the bride; and elsewhere the proffer of similar "wooing-gifts,"
without previous stipulation, must be looked upon either as a token
of good-will or as an indication of the ability of the bridegroom
to provide for a wife, rather than as a means of purchase.[711]
The probational marriages of the Seri Indians appear to have a
like significance.[712] May we not go a step farther? Is it not
probable that the widely diffused custom of bestowing presents of
greater value, even where the amount is established by usage or
previous agreement, may sometimes be due to like motives? Though,
as a rule, the presentation of such gifts represents a "weakened"
form of wife-purchase, it does not seem necessary to assign the
origin of the practice to a single cause. The same is true of the
custom of exchanging presents between the two families. Usually
it is rightly explained as a stage in the decay of purchase and
in the rise of the dower; but when we find the return of gifts in
use among such rude peoples, for instance, as the Bechuanas, the
Kalmucks, the Makassars, and the American Indians,[713] it seems
reasonable to suppose that the custom, in some cases at least, may
represent a ceremonial development of free marriage, taking its rise
in various motives. Thus among the Todas, it has been suggested,
the transaction appears as an exchange of dowers to serve as a
security for the mutual good behavior of the future couple.[714]
Similarly with the American Indians the gift to the bride's parents
may sometimes be designed to purchase clan privileges[715] or to
procure the "alliance of the wife's cabin;" while the exchange of
presents, which is found where it is usual for the husband to take
up his abode in the wife's home, ought perhaps to be regarded as a
matrimonial compact of alliance between the two families.[716]
[709] WESTERMARCK, _op. cit._, 397.
[710] Compare SARASIN, _Die Weddas von Ceylon_, I, 460,
461. Sometimes girdles (_Lendenschnuren_) are exchanged by bride
and groom. Free courtship exists; and this primitive people
presents a notable example of the pairing-family. The English
author DEBUTTS naïvely remarks, "The savage Veddahs live
in pairs like the beasts of the forest": SARASIN, _op.
cit._, I, 549.
[711] Such is the case among the Ainos of Yesso and the Brazilian
Puris, Coroados, and Coropos: WESTERMARCK, _op. cit._,
397, 398. Among the Polynesians the present seems to be designed
to gain the good-will of the wife's parents, but when the wife's
family is the inferior in rank, the husband, though rendering
the wooing-gift, receives a dower with his bride: WAKE,
_op. cit._, 390. On the "wooing-gift" see POST,
_Familienrecht_, 173, 175; _idem_, _Afrikanische Jurisprudenz_,
I, 342 ff.; KOHLER, in _ZVR._, V, 356; KOEHNE,
_ibid._, IX, 461 (Kalmucks); HILDEBRAND, _Ueber das
Problem_, 17 ff., who, as already noted, regards gift as
preceding purchase; and CRAWLEY, _Mystic Rose_, 386
ff., who holds that "the so-called bride-price was originally of
the same class as the _kalduke_, a pledge, a part of one's self,
given to another and received from him."
[712] Among the Seri the woman has much liberty of choice:
"certainly she holds the power of veto, ostensible if not
actual." During the preliminary courtship she occupies a position
of great dignity. "When all parties concerned are eventually
satisfied a probationary marriage is arranged, and the groom
leaves his clan and attaches himself to that of his bride. Two
essential conditions--one of material character and the other
moral--are involved in this probationary union; in the first
place the groom must become the provider for, and the protector
of, the entire family of the bride." For a year he thus shows his
"skill in turtle-fishing, strength in chase, subtlety in warfare,
and all other physical qualities of competent manhood.... During
the same period the groom shares the jacal and sleeping robe
provided for the prospective matron by her kinswomen, not as a
privileged spouse, but merely as a protecting companion; and
throughout this probationary term he is compelled to maintain
continence--_i. e._, he must display the most indubitable
proofs of moral force." To this kind of service the character
of wife-purchase is denied: MCGEE, "The Seri Indians,"
_XVII. Rep. of Bureau of Eth._, Part I, 279 ff.
[713] For these and other examples see KOHLER,
"Studien," _ZVR._, V, 342, 351, 353; POST,
_Familienrecht_, 176-79; _idem_, _Ursprung des Rechts_,
65; _idem_, _Anfänge des Staats- und Rechtslebens_, 55;
BANCROFT, _Native Races_, I.
[714] Among the Todas, on betrothal, "dowers" consisting of
buffaloes are exchanged. If the husband discards his wife, her
father demands a return of her dower; if the wife abandons the
husband, his father may take back his gift. In case the marriage
be canceled because the husband has not fulfilled his part of the
contract he may be "fined a buffalo or two": MARSHALL,
_A Phrenologist amongst the Todas_, 210-13, 217-19. Compare
WAKE, _op. cit._, 451.
[715] See the passage quoted from BOAZ, p. 191, above.
The "ceremonies" may sometimes be intended to prove the man's
ability to support a family: RATZEL, _Hist. of Mankind_,
II, 125.
[716] WAKE, _op. cit._, 390; LAFITAU, _Mœurs
des sauvages amériquains_, I, 565, 568. _Cf._ MORGAN,
_Ancient Society_, 454, on the presents to the wife's relatives
among the Syndiasmians (American Indians).
Nevertheless, after every allowance is made, the custom of
purchasing wives bears the indelible stamp of barbarism. Like
polygyny, which it so often accompanies, it is an offense against
the feelings and the dignity of woman. Therefore, often at a
relatively early period of social progress, it falls into disrepute;
but while it is gradually abandoned as a thing unseemly or
disgraceful, traces of it may long survive. On the one hand, as in
the case of the Roman _coemptio_, the Hindu _ārsha_, the Anglo-Saxon
_beweddung_, or the Jewish contract with the penny, the form of
sale is present in the wedding ceremony; or, on the other hand, the
bride-money, though still rendered, comes in time to be regarded
as simply a compensation for the guardianship of the woman;[717]
or else, passing through several intermediate stages, it is slowly
transformed into a dower.[718]
[717] SOHM, _Eheschliessung_, 22 ff.;
KÖNIGSWARTER, _Histoire de l'organisation de la
famille_, 123; and WEINHOLD, _Deutsche Frauen_, I, 320,
hold this view. But the point is disputed and will be recurred to
in another chapter.
[718] In general, on the decay of wife-purchase, see
WESTERMARCK, _op. cit._, 402-16, who gives the fullest
and most detailed account; POST, _Familienrecht_,
173-81, who discusses the stages of decline.
In the first stage of decline the bride-price appears as a nominal
compensation, out of proportion to the real value of the girl. It
usually consists of presents to the wife's parents or relatives, and
sometimes these are scarcely distinguishable from the "wooing-gifts"
already mentioned; while later it may degenerate into a mere symbol
or become a sportive social observance whose meaning is entirely
forgotten.[719] Again, among a large number of peoples, custom
requires that a part, sometimes all, of the gifts constituting the
price, or their equivalent, shall be returned to the bridegroom or
his family; and it is significant that special care is sometimes
taken, as among the Indians of Oregon, "not to turn over the same
horses or the same articles."[720] With other peoples a part or
the whole of the purchase price comes to the bride herself. Either
the father turns it over as a marriage portion, or it is paid to
her directly by the bridegroom. In the latter case, as Westermarck
observes, it is often difficult "to make out whether the presents
obtained from the bridegroom formed originally a part of the
bride-price or were only a means of gaining her own consent."[721]
One step more, and we reach the stage of development in which the
father provides his daughters with a dotal portion out of his own
substance.[722]
[719] Thus in Lovrec, Dalmatia, where the bride-price is no
longer customary, when the _Brautführer_, on the day before
the nuptials, comes to the bride's home for the _Brautkiste_
containing her trousseau, he finds a child sitting upon it,
who must be bought off through payment of a piece of gold:
POST, _op. cit._, 177. Sometimes the symbolical purchase
coexists for a time with real purchase: _ibid._, 177; _idem_,
_Geschlechtsgenossenschaft_, 73; _idem_, _Grundlagen des Rechts_,
235.
[720] WESTERMARCK, _op. cit._, 409 ff. For many examples
of exchange of gifts see KOHLER, "Studien," _ZVR._,
V, 340, 341, 347-49, 351, 353, 365; POST, _op. cit._,
177-79.
[721] WESTERMARCK, _op. cit._, 409, 410, giving examples.
[722] The marriage contract had already reached this last
stage among the ancient Babylonians and Assyrians. They had a
remarkably high ideal of family life. The facts disclosed by the
records are wholly inconsistent with Herodotus's story regarding
the sacred prostitution of the unmarried women. At the nuptials
it was customary to state that the bride was "pure" or "without
stain." Polygyny existed only as the rare luxury of the rich. As
a rule, the formation of a second marriage was equivalent to a
divorce from the first. Two principles, declares SAYCE,
the maternal and the paternal, "were struggling for recognition."
Perhaps "they were due to a duality of race; perhaps they were
merely a result of the circumstances under which the Babylonians
lived. At times it would seem as if we must pronounce the
Babylonian family to have been patriarchal in character; at
other times the wife and mother occupies an independent and even
commanding position. It may be noted that whereas in the old
Sumerian hymns the woman takes precedence of the man, Semitic
translation invariably reverses the order: the one has 'female
and male,' the other 'male and female.'"--_Babylonians and
Assyrians_, 13. The practical result was that the sexes were
nearly equal in marriage. The individual and not the family was
the social unit; and the individuality of the woman was fully
recognized. She controlled her own property. She could buy and
sell, borrow and lend, sue and be sued, and inherit equally with
her brother. She might become a priestess, the head of a city, or
the queen of the state. The wife was her husband's equal in the
business world. The possession of property "brought with it the
enjoyment of considerable authority." She "could act apart from
her husband, could enter into partnership, could trade with her
money, and conduct law-suits in her own name."--_Idem_, _Social
Life among the Assyrians and Babylonians_, 50, 51. The bride's
dower was paid by her father to the bridegroom; but it was her
property. Sometimes the husband enjoyed the use of it for life;
sometimes the wife disposed of it as her private capital. It
was always a means of securing her economic independence, and
thus of promoting the happiness of her married life. "In this
way she was protected from tyrannical conduct upon his part, as
well as from the fear of divorce on insufficient grounds. If
a divorce took place the husband was required to hand over to
the wife all the property she had brought with her as dowry,
and she then either returned to her father's home or set up an
independent establishment of her own." The divorced woman might
marry again if she chose. "Marriage was partly a religious and
partly a civil function. The contracting parties frequently
invoked the gods, and signed the contract in the presence of
the priest. At the same time it was a contract, and in order
to be legally valid it had to be drawn up in legal form and
attested by a number of witnesses. Like all other legal documents
it was carefully dated and registered."--_Idem_, _ibid._, 46,
47, 49, 50. _Cf._ for the forms of contract and ceremony his
_Babylonians and Assyrians_, 13-43; also the interesting account
of SIMCOX, _Primitive Civilizations_, I, 360-79; her
discussion of the similarly advanced domestic relations of the
ancient Egyptians, _ibid._, I, 198-225; KOHLER, "Ueber
zwei babylonische Rechtsurkunden aus der Zeit Nabonids," _ZVR._,
V; and HAUPT, _Die sumerischen Familiengesetze_.
Thus, to summarize, it appears in general that the institution
of dower takes its rise in two principal sources: either it is
derived through the return gift from its exact opposite, the ancient
purchase price of the bride; or, as a means of providing in some
way for the wife as a member of the new household, it has developed
along with free marriage, and stands as an expression of the natural
motives and desires upon which the human family rests. Strangely
enough, in our own society the marriage portion "has become a
purchase sum by means of which a father buys a husband for his
daughter."[723] It may be doubted whether the ideas which actuate
the modern plutocrat in such a transaction differ essentially from
those of the rich savage or barbarian who succeeds in procuring a
beautiful or high-born maiden in exchange for his flocks.
[723] In "our days, a woman without a marriage portion, unless
she has some great natural attractions, runs the risk of being
a spinster forever. This state of things naturally grows up
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."--WESTERMARCK, _op. cit._, 416.
We have now traced the evolution of the marriage contract throughout
its entire course, and are able to perceive in a measure its true
place in the general history of the human family. Again the movement
has been in a circle. As in the case of monogamy, the genesis of
contract must be sought beyond the border-line between man and the
lower animals. In the "natural history" stage of human existence
marriage rested on the free consent of the man and the woman. It
was an informal agreement. The man was the wooer, and to the
woman belonged the first place in sexual choice. In obedience to
the unvarying requirements of organic law, the best attributes of
each race have thus been differentiated: through natural selection
they represent the survival of the fittest. At a later stage of
development the element of mutual consent falls somewhat into
abeyance. With the rise of property, industry, and a more complex
social organization, giving birth to new desires and ambitions,
contract by the guardian in part supersedes self-betrothal. Purchase
and its occasional alternative, capture, depriving woman of her
natural right of assent, tend to reduce the wife to concubinage
and domestic slavery. But fortunately the victory is not complete.
Just as monogamy is never displaced by polygyny as the natural
type of marriage, so the consent of woman as the normal condition
of matrimonial union is never entirely destroyed by wife-purchase.
With the evolution of altruism, the increase of culture, producing
sympathy upon which connubial love largely depends, and the gradual
recognition of the spiritual equality of the sexes, self-betrothal,
like monogamy, again predominates. In short, whether regarded
historically or biologically, monogamy and self-betrothal appear
simply as two aspects of the same institution; they are connected
by a psychic bond, and together they constitute the highest type of
marriage and the family.
CHAPTER V
EARLY HISTORY OF DIVORCE
[BIBLIOGRAPHICAL NOTE V.--For the law and custom of divorce
among uncivilized peoples the best analysis and the most
painstaking classifications are given by Post in his
_Entwicklungsgeschichte des Familienrechts_ and the first volume
of his _Afrikanische Jurisprudenz_, supplemented by the more
general notices contained in his various other writings. The
subject is also well treated, with the usual minute citation of
authorities, in the twenty-third chapter of Westermarck's _Human
Marriage_. The fourteenth chapter of Letourneau's _L'évolution
du mariage et de la famille_ is interesting and suggestive, but
his analysis is defective; and in this connection, as elsewhere,
the author is inclined to take too pessimistic a view of the
juridical character of early society. Further general or special
discussion may also be found in many of the works already
described in previous Bibliographical Notes, especially in those
of Wake, Starcke, Spencer, Mason, Unger, Bastian, Friedrichs,
Smith, Krauss, Wilken, Riedel, Henrici, Bernhöft, Rehme,
Hellwald, Klemm, Ratzel, Waitz, Fritsch, Munzinger, Sarasin, and
the numerous papers of Kohler. For the Chinese, in connection
with the books enumerated in Bibliographical Note IV, read
Legge, _Life and Teachings of Confucius_ (3d ed., London, 1872);
Doolittle, _Social Life of the Chinese_ (New York, 1867); and
Alabaster, _Chinese Criminal Law_ (London, 1899). The literature
relating to the Eskimo and the red Indians of America, mentioned
in Bibliographical Note IV, yields many important notices of
divorce usage. In addition read Thwaite's valuable paper on the
Winnebagoes, _Wisconsin Hist. Collections_, XII (Madison, 1892).
For reference to the divorce institutions among Greeks, Romans,
Hebrews, and Early Germans see Bibliographical Note XI.]
I. THE RIGHT OF DIVORCE
Few of the results of recent research are more surprising than the
revelation of the existence among low races of elaborate systems of
unwritten law covering, often in a very orderly and comprehensive
way, most of the divisions which one ordinarily associates with
"civilized" jurisprudence.[724] This is especially true of the law
of divorce. The investigations of various scholars, notably those
of Kohler, Letourneau, Westermarck, and Post, have disclosed among
the barbarous or even savage races of mankind a careful attention
to detail, a stability, and often a respect for equity, in the
customary rules relating to the dissolution of marriage, which
western prejudice is scarcely prepared to find; while other peoples
commonly looked upon as civilized, but relatively non-progressive,
such as the Chinese, are sometimes quite capable of teaching us
valuable lessons in this regard.
[724] For the proof, see, for instance, the numerous writings of
Riedel, Wilken, Bastian, Friedrichs, Bernhöft, Post, and Kohler.
According to the generalization of Post, who has given the most
careful groupings,[725] "the laws of divorce found among the
different peoples of the earth vary within the widest limits
conceivable." So confusing, indeed, is the mass of custom relating
to the subject that in the very outset a word of warning must be
given. For in the present state of inquiry, often dependent upon
superficial observation and conflicting reports, any analysis or
classification, however careful, must perforce be accepted as
really tentative and only in broad outline approaching the truth.
Nevertheless, with regard to the liberty of divorce, following the
suggestion of Post, five classes of peoples may be differentiated:
1. Very often among rude races, particularly where the "genealogical
organization is little developed or in process of decay," the
marriage bond is lax, and it is readily dissolved at the pleasure
of either party.[726] Such is the case with many African,
Asiatic, American, and Oceanic peoples. Among the African Damaras,
for instance, the wife may change her husband every week if she
likes.[727] Similarly among the Shekiani, another negro tribe, the
woman may abandon her spouse for mistreatment or for any other
cause, returning to her native village, where her friends make
it a point of honor not to give her back; and in this way wars
sometimes arise.[728] Like freedom exists on the Gold Coast and
among the Felups of Fogni; and very commonly in Africa the wife may
leave the husband if the purchase price is returned.[729] Among
the Makassars and Buginese, without assigning any cause whatever,
either party may divorce the other, dividing the children between
them.[730] The same is true of the endogamic Alfurese of Minahasa,
with whom the cognatic system of relationship prevails.[731] Even
in Burma divorce appears to be a one-sided matter, though the
person dissolving the marriage suffers severe disadvantages with
respect to property rights.[732] In ancient Arabia marriages were
formed without ceremony, and they were ended by either spouse with
equal ease.[733] But the law of the Amaxosa, constituting with the
Amazulu the division of the Bantu stock commonly called "Kafirs,"
affords a particularly interesting example of early custom with
regard to divorce and its legal consequences. Both parties enjoy
the greatest freedom in dissolving the marriage; and this is all
the more striking because of the prevalence of wife-purchase, which
usually restricts the privileges of the woman in this regard. If the
marriage is childless, however long it may have endured, the husband
who proves the alleged ground of divorce is entitled to receive
back the purchase price; and this is true also, in case of such a
marriage, when the separation takes place on the part of the wife,
unless she establishes very grave cause for her action. The divorced
woman is permitted to marry again, provided the purchase price is
restored to the first husband; and this in such case he is entitled
to receive even when she has borne him children: for here "in all
cases the children belong to the father."[734]
[725] POST, _Familienrecht_, 75-79, 249-65; _idem_,
_Anfänge_, 20, 21; _idem_, _Afrikanische Jurisprudenz_, I, 320
ff., 434 ff.; _idem_, _Grundlagen des Rechts_, 267 ff.
[726] POST, _Familienrecht_, 250-58, enumerates six
classes of peoples according to the freedom of divorce: (1)
the marriage relation loose and dissoluble at the pleasure of
either party; (2) marriage indissoluble; (3) divorce only by
mutual consent; (4) divorce the right of the husband only; (5)
divorce the right of the wife; (6) divorce only on definite
grounds, these grounds either being the same for either spouse
or different for the man and the woman respectively. In the
text examples of the fifth group are given in connection with
the cases of divorce at the pleasure of either party; for
where the wife has the right to put away or leave the husband
when she likes, the husband, unless in very exceptional cases
(POST, _Grundlagen_, 271), appears to have the same
privilege with respect to the wife; hence Post's first and fifth
groups are practically the same.
In general on the first phase, see POST, _Afrikanische
Jurisprudenz_, I, 433-38; _idem_, _Grundlagen_, 267 ff.; _idem_,
_Familienrecht_, 249-51; LETOURNEAU, _L'évolution du
mariage_, 284 ff., 289, 290; BERNHÖFT, "Das Gesetz von
Gortyn," _ZVR._, VI, 430 ff., 434; WESTERMARCK, _Human
Marriage_, 518 ff.
[727] POST, _Afrikanische Jurisprudenz_, I, 436, 437.
The husband seems also to have absolute right of divorce:
LETOURNEAU, _op. cit._, 285.
[728] POST, _op. cit._, I, 437.
[729] Among the Mundingos the wife has an action against
the husband for abuse; in Soulimana she may leave him, if
the bride-presents are restored; while among the Krus in
such cases her relatives must repay double the purchase
price; WAITZ, _Anthropologie_, II, 119, 120. Among
the Charruas, where polygyny exists, the wife abandons the
husband if an unmarried man will take her: KLEMM,
_Kulturgeschichte_, II, 75.
[730] POST, _Familienrecht_, 251.
[731] _ibid._
[732] This is the conclusion of KOHLER, "Aus der
Praxis des buddhistischen Rechts in Birma," _ZVR._, VI, 389-91,
following the interesting decisions in JARDINE,
_Circulars (Civil and Criminal) of the Court of the Judicial
Commissioner of British Burma_, 1883 (Rangoon, 1884). _Cf._
also KOHLER, in _ZVR._, VI, 172; POST,
_Familienrecht_, 251; and WESTERMARCK, _op. cit._, 528.
[733] Among the early Arabians the woman as well as the man
had entire freedom of divorce. The _nikâh al-mot'a_, or
temporary contract-marriage, amounted merely to a restriction
of the woman's power of divorce during the short term of
agreement: SMITH, _Kinship and Marriage_, 59 ff., 65
ff.; KREMER, _Kulturgeschichte des Orients_, I. 538;
WILKEN, _Das Matriarchat_, 18, 9 ff.: _ap. Ammianus
Marcellinus_, Book XIV, sec. iv, 4, YONGE'S trans.
(London, 1887), 11. By the later Arabian law, after the rise
of wife-capture and wife-purchase, divorce became the sole
privilege of the husband; and the same is true under the still
later law. _Cf._ in general, HELLWALD, _Die mensch.
Familie_, chaps. xxii, xxiii; KOHLER, "Ueber das
vorislamitische Recht der Araber," _ZVR._, VIII, 244, 248, 257;
FRIEDRICHS, "Das Eherecht des Islam," _ibid._, VII,
263-69.
[734] REHME, "Ueber das Recht der Amaxosa," _ZVR._, X,
38, 39; _cf._ POST, _Afrikanische Jurisprudenz_, I, 436.
FRITSCH, _Die Eingeborenen Süd-Afrikas_, 113, says that
in cases of very cruel treatment the wife may abandon the husband
and return to her family; to get her back the husband has to make
an after-payment.
Divorce is a simple matter among the Point Barrow Eskimo. "As
well as we could judge," writes Murdoch, "the marriage bond
was regarded simply as a contract ...; and, without any formal
ceremony of divorce, easily dissolved in the same way on account
of incompatibility of temper or even on account of temporary
disagreements."[735] Among the Santee Dakotas, where mother-right is
said to prevail, "a wife's mother can take her from the husband and
give her to another man." With "the Cegiha, if the husband is kind,
the mother-in-law never interferes." But when he is "unkind the wife
takes herself back, saying to him, 'I have had you for my husband
long enough; depart.'" When the man has beaten the woman several
times or been otherwise cruel, sometimes her father or elder brother
says to him: "You have made her suffer; you shall not have her for a
wife any longer." When a woman who has been warned against a man by
her relatives repents and wishes to dissolve the marriage, her male
kindred as a punishment say to her: "Not so; still have him for your
husband; remain with him always."[736]
[735] In two cases wives left their husbands for bad treatment.
Occasionally the man repudiates his wife; and sometimes there
are several changes or exchanges before a permanent choice is
made. When, however, a union is once settled, it is not easily
dissolved: MURDOCH, in _IX. Rep. of Bureau of Eth._,
411, 412. Similar freedom for both sexes prevails among the
Eskimo about Bering Strait: NELSON, _ibid._, XVIII, Part
I, 292.
[736] DORSEY, "Omaha Sociology," _III. Rep. of Bureau of
Eth._, 261,262. For further examples of easy divorce among the
Indians see TURNER, "Ethnology of the Ungava District,"
_ibid._, XI, 270 (Nenenot); _Report Smith. Inst._, 1885, 71
(Pawnees marry and unmarry at pleasure); ANCHIETA,
"Informação," _Revist. Trim. Hist._, VIII, 254-62 (the woman
leaves the man at pleasure in Brazil).
2. Passing to the opposite extreme, there are peoples with whom
marriage is a relation absolutely indissoluble. Sometimes this is
the case on sacramental grounds, implying usually considerable
progress in religious ideas;[737] but it is also true of peoples
standing on a very low plane of culture, such as certain of the
Papuas of New Guinea, the Veddahs[738] of Ceylon, or the Niassers
of Batu, where death alone is sufficient to dissolve the marriage
bond.[739]
[737] The old Indie law does not recognize a proper divorce,
though the husband may "supersede" his wife; but sometimes by the
existing custom of Indian peoples it is allowed: KOHLER,
in _ZVR._, III, 384, 386 ff.; VII, 236; XI, 169. _Cf._
FRIEDRICHS, _ibid._, X, 251; WESTERMARCK, _op.
cit._, 525; LETOURNEAU, _op. cit._, 301, 302.
[738] SARASIN, _Die Weddas von Ceylon_, I, 459.
[739] POST, _Familienrecht_, 251, 252, following the
researches of Wilken and Riedel. This rule applies, apparently,
only to the Papuas of Geelvinkbai in New Guinea; elsewhere
in that island the man may put away the woman at pleasure:
KOHLER, "Ueber das Recht der Papuas auf Neu-Guinea," in
_ZVR._, VII, 373. In general _cf._ WESTERMARCK, _op.
cit._, 517.
3. Between these extremes of one-sided freedom and entire
prohibition of divorce various intermediate phases appear.
Sometimes the only method is mutual agreement of the parties. So,
for instance, according to Post, among the Karo-Karo, a Batak
tribe on the east coast of Sumatra, neither harsh mistreatment,
wicked desertion, nor even adultery gives either the wife or the
husband singly the right to demand a separation. Only in case
of life-assault is one-sided divorce permitted; and this rule
is perhaps a mitigation of the older and severer law.[740] In
West-Victoria "a man can divorce his wife for serious misconduct,
and even put her to death; but in every case the charge against
her must first be laid before the chiefs of his own and his wife's
tribes, and their consent to her punishment obtained. If the wife
has children, however, she cannot be divorced. Should a betrothed
woman be found after marriage to have been unfaithful, her husband
must divorce her. Her relations then remove her and her child to
her own tribe, and compel the father of the child to marry her,
unless he be a relative. In that case she must remain unmarried. If
a husband is unfaithful, his wife cannot divorce him. She may make
a complaint to the chief, who can punish the man by sending him
away for two or three moons; and the guilty woman is very severely
punished by her relatives." But there are other ways of dissolving a
marriage; and under some conditions the woman has a chance. Exchange
of wives, when both are childless, is "permitted only after the
death of their parents, and, of course, with the consent of the
chiefs." A couple without children may separate by mutual consent;
and "when a woman is treated with cruelty by her husband, she may
put herself under the protection of another man, with the intention
of becoming his wife. If he take upon himself the duty of protecting
her, he must challenge her husband and defeat him in single combat
in presence of the chiefs and friends of both parties." When a
"husband knows that his wife is in love with another man, and if
he has no objection to part with her, he takes her basket to the
man's wuurn and leaves it. But as no marriage or exchange of wives
can take place without the consent of the chief, the wife remains
with her husband till the final great meeting, when the bargain is
confirmed. This amicable separation does not create any ill feeling
between the parties, as the woman is always kind to her first
husband without causing any jealousy on the part of the second. Such
transactions, although lawful, may not be approved of by the woman's
relatives, and she is liable to be speared by her brother."[741]
[740] POST, _op. cit._, 252. In some instances,
however, mutual agreement is only one of several grounds on
which dissolution of the marriage is allowed. "So ist z. B. auf
Mukuhiva, auf den Marianen, bei den Koluschen eine Trennung
der Ehe durch gegenseitige Uebereinkunft gestattet. Ebenso in
Birma."--POST, _loc. cit._, 252, 253.
[741] DAWSON, _Australian Aborigines_, 33-36. Divorce by
mutual consent is lawful in Polynesia, but it rarely occurs if
there are children: AVERY, "The Indo-Pacific Oceans,"
_Am. Ant._, VI, 366; the same is true of some American peoples:
WAITZ, _Anthropologie_, III, 328.
Among the Marea, when husband and wife can no longer tolerate each
other, they are given a year's probation by the "family council;"
and only after the expiration of this period does the formal divorce
take place. A discontented Marea dame of noble (patriarchal) rank
may not of her own will leave her husband; for this would offend
social usage. But a Tigrait, or woman of the servile class, may
under such circumstances abandon her spouse, provided thenceforth
she live abroad.[742]
[742] MUNZINGER, _Ostaf. Studien_, 241.
4. Again it is very common among uncivilized as well as more
advanced races for a man to have absolute right of divorce, putting
away his wife when he likes, without the assignment of any reason,
or on the most frivolous grounds.[743] Sometimes, even among the
same peoples, the woman has a reciprocal right, as will presently
appear; but very often divorce is the sole prerogative of the man,
or else the woman is grudgingly allowed the privilege only for the
most serious cause. The unfavorable position in which she is thus
placed is no doubt largely due to wife-capture, and especially
to wife-purchase, through which she too often sinks to the level
of a mere chattel or beast of burden. Still even wife-purchase,
as hereafter shown, may have its compensations; for the husband
cannot act too harshly without danger of the blood-feud; and he may
suffer a decided disadvantage with respect to property by summarily
dismissing his wife. Unlimited right of divorce belongs to the
man in some parts of China,[744] and with many African[745] and
American[746] tribes. "The Aleuts used to exchange their wives for
food and clothes. In Tonga a husband divorces his wife by simply
telling her to go." In "Yucatan a man might divorce his wife for the
merest trifle, even though he had children by her."[747] Among the
California Yurok "divorce is very easily accomplished at the will
of the husband, the only indispensable formality being that he must
receive back from his father-in-law the money which he paid for his
spouse."[748] If dissatisfied with his wife, the young Gallinomero
of the same region may "strike a bargain with another man" and sell
her "for a few strings of shell-money."[749] In the so-called "straw
dance" the Dakota husband may "throw away" the wife whom he no
longer desires. He may even take several wives in order to dispose
of them in this way; thus adding to his importance and giving
evidence of his "strong heart."[750] Among the Abipones divorces
are as frequent "as changing of the dress in Europe." If "their
wives displease them, it is sufficient; they are ordered to decamp."
The husband's right is unrestrained by the law; but, "appointing a
drinking-party, wherein the memory of injuries is refreshed in the
minds of the intoxicated guests, the relations fiercely avenge the
dishonor done to the repudiated wife."[751] The Tasmanian husband,
when dissatisfied or when a liberal offer is made, may "transfer"
his spouse like a slave; but in Luzon a divorce is more difficult,
for the wedding gifts must be redistributed among the donors.[752]
With "the ancient Hebrews, Greeks, Romans, and Germans, dislike was
regarded as a sufficient reason for divorce."[753] Such is also
the case on the island of Nias;[754] while among the Galela and
Tobelorese the man may put away his wife on account of laziness; and
elsewhere he may do the same because she is tiresome or because she
lacks skill for household service.[755]
[743] For these cases see WESTERMARCK, _op. cit._,
520-23; POST, _Familienrecht_, 253, 254; _idem_,
_Afrikanische Jurisprudenz_, I, 433-36; _idem_, _Grundlagen_,
268, 269; FRIEDRICHS, "Familienstufen und Eheformen,"
_ZVR._, X, 251, 252; KOHLER, "Studien," _ibid._,
V, 340, 341 (Mongols and Tunguse); _idem_, "Ueber das Recht
der Koreaner," _ibid._, VI, 403; and LETOURNEAU,
_L'évolution du mariage_, 286 ff., 289 ff.
[744] MCLENNAN, _Studies_, I, 141, 142, note;
POST, _Familienrecht_, 253. But this is not the general
rule, as below shown.
[745] POST, _Afrikanische Jurisprudenz_, I, 433 ff.;
WAITZ, _Anthropologie_, II, 109, 115 (only the woman
legally capable of adultery), 120; MUNZINGER, _Ostaf.
Studien_, 320 (Beni Amer).
[746] POST, _Familienrecht_, 253.
[747] WESTERMARCK, _op. cit._, 520, 521.
[748] POWERS, _Tribes of Cal._, 56.
[749] _Ibid._, 178.
[750] After the wife is "thrown away" the husband becomes a
"young man" again, and seeks new partners: BECKWITH,
"Customs of the Dakotahs," _Rep. Smith. Inst._, 1886, Part
I, 256. _Cf._ also on the man's absolute right of divorce,
DORSEY, "Siouan Sociology," _XV. Rep. of Bureau of
Eth._, 225.
[751] DOBRIZHOFFER, _Account_, II, 210-12, 96, 138;
_cf._ GUIMARÃES, "Memoria," _Revist. Trim. Hist._, VI,
307.
[752] BONWICK, _Daily Life and Origin of the
Tasmanians_, 73, 74. The Tasmanian woman, he adds, even
when divorced "was by no means free, as the tribe exercised
jurisdiction" in her "affairs and the disposal of her person. She
soon came under bondage again to another man, though perhaps to a
younger than her first affianced one; as the young fellows were
in most instances supplied with their first partners from the
overflowing establishments of their seniors, or by the grant of a
cast-off bit of property."
[753] WESTERMARCK, _op. cit._, 520, 521, citing Deut.
24:1; MEIER AND SCHÖMANN, _Der attische Process_,
511; MCKENZIE, _Studies in Roman Law_, 123 ff.;
GRIMM, _Rechtsalterthümer_, 454. On the Hebrews see also
LETOURNEAU, _op. cit._, 302, 303; GLASSON, _Le
mariage civil et le divorce_, 145 ff.
[754] POST, _Familienrecht_, 253, 254; RIEDEL,
in _ZFE._, XVII, 78.
[755] "In den Gallareichen kann der Mann die Frau verstossen,
weil sie ihm langweilig geworden oder zu den häuslichen
Geschäften nicht tauglich ist. Will er dagegen keine Scheidung,
sondern nur Trennung, so ergiebt sich die Frau der Prostitution
und kann vom Gatten für sich und ihre illegitimen Kinder Wohnung
und die nöthigen Nahrungsmittel beanspruchen."--POST,
_Familienrecht_, 253, 254. In New Caledonia, likewise,
the wife may be put away because she bores her husband:
LETOURNEAU, _op. cit._, 285.
Under the existing law of Islâm the woman has gained a limited right
of divorce. By the form called _chol_ she may buy her release; and
in this case "a restoration of the marriage bond is impossible."
Again, for certain specified faults of the husband, she is granted
a separation through _fasch_, or judicial decree.[756] On the other
hand, by _li'an_, or solemn oath before the _cadi_, a husband is
able to put away the spouse whom he believes to be unfaithful;[757]
but in general the right of the man to reject the woman without
assigning any cause whatever is absolutely unrestrained. The great
majority of divorces among Moslem peoples take the form of _talâq_,
or repudiation. It is only necessary for the husband who is tired
of his wife to say to her "_mutállaka_," "Thou art dismissed."[758]
In harmony with the old Arabian custom the procedure by _talâq_ may
consist of a "triple declaration" or three successive divorces.
After the first pronouncement of the formula the repudiated woman
remains three months in her harem at the man's cost, and he is at
liberty to take her back if he will. Indeed, a single tender glance
or word of concession is sufficient to restore the marriage. Should
he not reclaim her until the specified term is passed, he may then
do so only in case she has not already taken a new husband, and by
paying her a "second time the full amount of the morning-gift as
stipulated at their marriage." A second or even a third separation
from the same wife may be had by repetition of this process; but
the third declaration, unlike the other two, is irrevocable,
definitively dissolving the marriage bond.[759]
[756] The wife is entitled to a divorce in this way when the
husband (1) leaves her without support; (2) accuses her falsely
of unfaithfulness; (3) refuses to acknowledge the child which
she has borne him; (4) when he abandons the faith; or (5) fails
in "marital duty": HELLWALD, _Die mensch. Familie_,
409. But in practice little use is made of this form, the woman
preferring instead to declare before the judge that she is in
a condition of matrimonial "insurrection," by which means the
husband is usually led to "repudiate" her: _idem_, _loc. cit._
[757] The procedure by oath is allowed when the husband is
persuaded, but cannot prove, that the wife is pregnant by another
man; and the action must precede the _accouchement_. The wife
may take a similar oath that the husband's belief is unfounded:
HELLWALD, _op. cit._, 409.
[758] But other phrases, such as "Cover thee with thy veil,"
or "Seek another man," may be employed: HELLWALD,
_op. cit._, 409. Compare the three formulæ used in Algiers:
LETOURNEAU, _op. cit._, 297.
[759] HELLWALD, _op. cit._, 410, 411; following
especially VINCENTI, _Die Ehe im Islâm_, 22, 23. After
the third divorce or declaration there is still a way in which
the man can get his wife back when she, in due legal form,
has married another man, and has been repudiated by him. This
procedure is usually collusive by means of a "straw husband":
HELLWALD, _loc. cit._, citing EFENDI,
_Türkische Skizzen_, II, 15. In general see UNGER, _Die
Ehe_, 48-50; LETOURNEAU, _op. cit._, 289-99, on the
triple declaration among Mohammedan peoples of Africa.
Among a great many peoples, even those comparatively little advanced
in general culture, the husband is permitted to divorce his wife
only for definite reasons.[760] The causes of legal divorce most
constantly recurring are adultery and sterility. In a great many
cases divorce is absolutely forbidden after a child, usually a son,
is born. It should be carefully noted that many of the alleged
examples of divorce on the ground of sterility are, strictly
speaking, not divorces at all; but rather illustrations of the
so-called "proof-marriages" so often met with in all parts of the
world. Not until the term of probation is "blessed" by the arrival
of offspring is the "marriage" in such cases regarded as complete,
though this may not always be the implied condition. With the
proof-marriages are sometimes described as identical in character
the "time-marriages" found among many peoples; but this form of
union is, properly speaking, usually a real marriage not dependent
for its consummation upon the birth of a child, being stipulated in
advance for a certain term.[761] Besides the two leading grounds of
divorce already mentioned, many others, some of them trivial, are
prescribed by the laws of various peoples. Such are mistreatment,
deformity, laziness, desertion, and incompatibility of temper.
Sometimes the consent of the chief or other public authority is
requisite. So, among the Hottentots, a man may divorce his wife
only "upon shewing such cause as shall be satisfactory to the men
of the kraal where they live;"[762] and among the aborigines of
Victoria, as already seen, a childless wife may be dismissed for
serious misconduct only when the sanction of the tribal chief is
obtained.[763] By Chinese law divorce _must_ be granted in case
of any of the numerous impediments[764] to marriage; or when the
wife is guilty of adultery. For that offense the aggrieved husband
may kill the offending wife and her paramour, if he catch them
_in flagrante delicto_. But should the woman not be slain, she is
punished, and the husband may drive her away or even sell her as a
concubine, provided he has not pandered to the crime or does not
sell her to the guilty man.[765] Furthermore, a marriage may be
dissolved by mutual agreement;[766] and the husband is entitled to
a divorce when the wife strikes him, is addicted to drunkenness
or opium smoking, has been defiled before marriage, or when she
leaves his house against his will.[767] Besides all these grounds,
established by statute or recent usage, Confucius allows the
husband a divorce for any of seven faults of the wife: barrenness,
wantonness, inattention to parents-in-law, talkativeness, theft,
jealousy, and inveterate disease such as leprosy.[768] But
these grounds will not always warrant a separation. "They may
be outweighed by particular merits of the woman or by special
circumstances. If the wife has mourned three years for the husband's
parents; if the family has grown rich during the marriage; or if
the wife has no longer relatives to receive her, then the seven
assigned grounds fail, the divorce is not only forbidden but void,
and the husband must retain his wife."[769] This is not the only
wise and righteous provision of the Chinese law, however despotic
as a rule may be the husband's power. Normally the wife cannot sue
for divorce; still practically she enjoys the right of separation
in several important contingencies. Under judicial approval, for
instance, she may release herself from the marriage bond in case
of three[770] years' desertion without word from her husband. So
likewise, when she suffers grave insult from the husband's parents,
she may return to her own family, reclaim her dotal gift, and demand
a contribution for her support.[771]
[760] These cases are discussed by POST,
_Familienrecht_, 253-55; _idem_, _Grundlagen_, 269; _idem_,
_Afrikanische Jurisprudenz_, I, 439-41; LETOURNEAU,
_op. cit._, 286 ff.; WESTERMARCK, _op. cit._, 523, 524;
FRIEDRICHS, "Familienstufen und Eheformen," _ZVR._, X,
251.
[761] On these so-called "Zeitehen" and "Ehen auf Proben,"
in addition to the references, chap. ii, p. 49, note 2, see
POST, _Familienrecht_, 75-79; _idem_, _Afrikanische
Jurisprudenz_, I, 321-23; STARCKE, _Primitive Family_,
258-60; WESTERMARCK, _op. cit._, 523, 524, who
apparently includes these cases under the head of divorce for
sterility. "Proof-marriages" are said even now to be customary in
Yorkshire: BUNSEN, in _ZFE._, XIX, 376; POST,
_op. cit._, 77; and a good example is afforded by the Scotch
"hand-fasting" prevalent in the eighteenth century: "Two chiefs
agreed that the heir of the one should live with the daughter
of the other as her husband for a year and a day; if at the
end of that time the woman had become a mother, or, at any
rate, if she was pregnant, the marriage was regarded as valid,
even if unblest by a priest;" otherwise the connection was
dissolved: STARCKE, _op. cit._, 260; SKENE,
_The Highlanders of Scotland_ (London, 1837), 166. _Cf._
TEGG, _The Knot Tied_, 222, 223; BRAND,
_Popular Antiquities_, II, 87, 88; BULLINGER, _The
Christen State of Matrimonye_ (1541), 48, 49; WOOD, _The
Wedding Day_, 113, 184, 185; STILES, _Bundling_, 17, 19.
For examples of temporary unions among the American Indians see
WESTERMARCK, _op. cit._, 518, 519. Such marriages are
found among the Winnebagoes: THWAITES, in _Wis. Hist.
Coll._, XII, 427.
[762] WESTERMARCK, _op. cit._, 524: _ap._
KOLBEN, _The Present State of the Cape of Good-Hope_
(London, 1731), I, 157. However, this rule may in practice have
little meaning: see POST, _Afrikanische Jurisprudenz_,
I, 435, who also cites Kolben.
[763] DAWSON, _Australian Aborigines_, 33.
[764] For the impediments to matrimony, all of which are
diriment, see MÖLLENDORFF, _Das chin. Familienrecht_,
9-20.
[765] MÖLLENDORFF, _Das chin. Familienrecht_, 32. In
China a man is legally incapable of adultery. If the husband
slay either the man or the woman taken _in flagrante delicto_,
he must do so on the instant; "though it is also allowable for
the husband to kill the adulterer outside the house, if it be
in chase. But if the husband first ties up the adulterer, and
then kills him, he will be guilty of a transportable offence....
If the husband kills the wife afterwards, he will be liable to
three years' transportation and 100 blows."--ALABASTER,
_Chinese Criminal Law_, 187, 188. If the paramour kills the
husband, the wife is strangled, whether she knew of the
crime or not, provided the husband has not consented to the
adultery. Grace is shown the woman only "when the murder
was sudden and unpremeditated;" but then only in case that
she "fly to the rescue, and give the alarm, and do her best
to bring the murderer to justice by denouncing him to the
authorities."--ALABASTER, _op. cit._, 194. The price
of the guilty wife sold as a concubine falls to the state:
MÖLLENDORFF, 32.
[766] The agreement, however, must be in good faith. Should
the wife plan the divorce so as to form a punishable relation
with another man, it is void, and the husband may retain the
woman or sell her to another as in the case of unfaithfulness:
KOHLER, "Aus dem chin. Civilrecht," _ZVR._, VI, 376.
[767] MÖLLENDORFF, _op. cit._, 32; HELLWALD,
_op. cit._, 380, 381; ALABASTER, _op. cit._, 182
ff.; GROSSE, _Die Formen der Familie_, 225 ff.;
KATSCHER, _Bilder aus dem chin. Leben_, 90 ff., _passim_.
[768] If he puts away his wife without just cause, he is
to receive eighty blows with the bamboo and take her back:
WAKE, _Marriage and Kinship_, 232; KOHLER,
_loc. cit._, 375; WESTERMARCK, _op. cit._, 523;
LETOURNEAU, _op. cit._, 300, 301; DOOLITTLE,
_Social Life of the Chinese_, I, 106, 107.
According to TSCHENG-KI-TONG, _China und die Chinesen_,
55, barrenness is the only serious ground of divorce in
China, and even of this little use is made, particularly by
the aristocracy; but this view is not sustained by other
evidence, divorce being frequent among the lower classes:
HELLWALD, _op. cit._, 380, 381.
[769] KOHLER, _loc. cit._ On the other hand, the
interpretation of these rules may often be "too elastic" in
favor of the man. In one of the old Chinese books, according to
WESTERMARCK, _op. cit._, 524, 525, "when a woman has any
quality that is not good, it is but just and reasonable to turn
her out of doors.... Among the ancients a wife was turned away if
she allowed the house to be full of smoke, or if she frightened
the dog with her disagreeable noise": citing NAVARETTE,
_An Account of the Empire of China_ (London, 1704), 73.
[770] According to ALABASTER, _op. cit._, 190, "it would
seem that the husband can claim no marital rights, if he has been
for five years in exile, without writing to his family, and his
wife has in the meantime married again, although the law is not
clear."
[771] KOHLER, _loc. cit._, 375, 376. The woman has also
the right of divorce when the husband is a leper or becomes
such after marriage; when he is impotent; and either party may
claim the right when deceived by a false allegation in the
marriage contract: MÖLLENDORFF, _op. cit._, 32, 33;
ALABASTER, _op. cit._, 182.
See further on Chinese divorce and marriage, LEGGE,
_Life and Teachings of Confucius_, 106, _passim_; HUC,
_Chinese Empire_, II, 218-20, 262, 263; WAKE, _Marriage
and Kinship_, 229-35.
In modern Japan divorce is regulated according to the principles
of western law; but formerly the husband's power was governed, as
in China, by the rules of Confucius.[772] Furthermore, in spirit
the Aztec law of divorce bears a striking resemblance to that of
China. Only in special cases, not now understood, had the woman a
right of separation; and the husband could put away his wife only
for definite reasons, such as sterility and certain defects of
character, as when she proved herself careless, impatient, lazy,
or quarrelsome. Divorce, however, was discouraged; and even when
a legal reason was alleged, it could not be effected without a
judicial decree. The decree did not declare the separation; it
merely allowed the plaintiff in the matter "to do what he should
find good." Thus permission was given for divorce; but the judge
avoided pronouncing the separation in direct words.[773]
[772] KOHLER, "Studien aus dem japanischen Recht,"
_ZVR._, X, 449. _Cf._ WAKE, _op. cit._, 233, note;
WESTERMARCK, _op. cit._, 525; HELLWALD, _Die
mensch. Familie_, 383-86; GROSSE, _Die Formen der
Familie_, 228-31.
[773] KOHLER, "Das Recht der Azteken," _ZVR._, XI, 60;
KLEMM, _Kulturgeschichte_, V, 35. Among the Aztec Otomis
the parties could separate after the first night; but, possibly,
this is a case of proof-marriage; and in Michoacan the same rule
prevailed, if they swore that they had not "seen one another":
KOHLER, _loc. cit._, 61. The divorce laws of the Chins
or Khyengs, in farther India, are particularly interesting; and
in some respects they are similar in principle to those of the
Chinese and Aztecs: KOHLER, "Das Recht der Chins,"
_ZVR._, VI, 186 ff., 191 ff.
5. Finally, in further illustration of the endless variety of
popular customs, it must be noted that among many peoples the wife
also has the right of divorce. Often, as already seen, she may
leave her husband at pleasure or on the slightest pretext. It needs
but a glance at the usages of the American Indians in this regard
to perceive that the lot of the married woman among barbarous
or even savage tribes is not always so dark as it is frequently
painted;[774] and many similar proofs elsewhere exist.[775] Among
the inland Columbians, according to Bancroft, "either party may
dissolve the marriage at will."[776] A similar rule prevails with
the Moxos of South America, the tribes of California, as well as
among the Iroquois and their neighbors.[777] "If a Bonak wife gets
up and leaves the man, he has no claim ever after on her;"[778]
and, according to Schoolcraft, when the Navajo woman marries, "she
becomes free, and may leave her husband for sufficient cause."[779]
The Guanan[780] and Guatemalan[781] wife is equally privileged; and
the Sioux and other Dakota women are often notoriously independent,
even beating their husbands for unfaithfulness, and for this or
other just cause returning to their own kindred.[782] Sometimes the
wife has the right of divorce only on definite grounds, which may
differ from or be the same as those permitted to the husband.[783]
Often the reasons which satisfy the moral sense of the community
are very slight; at other times they are grave and few in number.
Among the Shans, "should the husband take to drinking or otherwise
misconducting himself, the woman has the right to turn him adrift,
and to retain all the goods and money of the partnership."[784]
In "Eastern Central Africa divorce may be effected if the husband
neglects to sew his wife's clothes, or if the partners do not please
each other."[785] Theoretically among the Athenians the woman could
demand a divorce for mistreatment, "in which case she had merely
to announce her wish to the archons;"[786] while the Kafir wife
"who is beaten or not provided with sufficient food and clothes
is entitled to return to her parents."[787] In fact, the right of
the woman to repudiate her husband for mistreatment is alleged to
be the general rule according to negro custom.[788] Even by modern
Mohammedan legislation "divorce may, in certain cases, take place at
the instance of the wife, and, if cruelly treated or neglected by
her husband, she has the right of demanding divorce by authority of
justice."[789]
[774] _Cf._ SPENCER, _Principles of Sociology_, I, 722,
723; MASON, _Woman's Share in Primitive Culture_, 229,
for suggestive remarks in this connection. WESTERMARCK,
_op. cit._, 526-29, discusses this topic with characteristic
minuteness, giving in a note a list of peoples, with authorities,
among whom the wife has the right of divorce absolutely or on
conditions.
[775] So in Tahiti, the Sandwich Islands, the Marianne and
Caroline groups, the Indian Archipelago, in Africa, and
elsewhere; see the examples of free divorce at the option of
either party and the authorities already mentioned above. _Cf._
LETOURNEAU, _op. cit._, 287.
[776] BANCROFT, _Native Races_, I, 277.
[777] _Ibid._, 412; MORGAN, _Ancient Society_, 454
(Iroquois); LETOURNEAU, _op. cit._, 288.
[778] WESTERMARCK, _op. cit._, 527: _ap._
SCHOOLCRAFT, _Indian Tribes_, IV, 223 ff.
[779] WESTERMARCK, _op. cit._, 527: _ap._
SCHOOLCRAFT, _Indian Tribes_, IV, 214. But it appears to
be a point of honor for the abandoned husband to avenge himself
by killing someone: BANCROFT, _op. cit._, I, 512;
LETOURNEAU, _op. cit._, 288.
[780] WESTERMARCK, _op. cit._, 527.
[781] BANCROFT, _op. cit._, II, 672;
LETOURNEAU, _op. cit._, 288.
[782] So among the Santals (Dakotas): LETOURNEAU, _loc.
cit._
[783] For this class of peoples see POST,
_Familienrecht_, 250, 254-58; _idem_, _Afrikanische
Jurisprudenz_, I, 436-39; WESTERMARCK, _op. cit._,
526-29.
[784] WESTERMARCK, _op. cit._, 527, 528: _ap._
COLQUHOUN, _Amongst the Shans_, 295.
[785] WESTERMARCK, _op. cit._, 528: _ap._
MACDONALD, _Africana_, I, 140.
[786] WESTERMARCK, _op. cit._, 528, 529;
GLASSON, _Le mariage civil et le divorce_, 152 ff.;
UNGER, _Die Ehe_, 60; PLUTARCH'S _Lives_
(London, 1890), Solon, 68. Primitively the Grecian wife had
little liberty in this regard; even later it was always difficult
to enforce her right of divorce; and repudiation was regarded as
a disgrace: LECKY, _History of European Morals_, II,
287, 289; LETOURNEAU, _op. cit._, 304.
[787] WESTERMARCK, _op. cit._, 528, 529; WAITZ,
_Anthropologie_, II, 389; POST, _Afrikanische
Jurisprudenz_, I, 436. But in case of the Kafirs, the chief
decides whether the woman has just cause: POST, _op.
cit._, 438.
[788] "Wird die Frau misshandelt oder vernachlässigt, so
kann sie die Lösung der Ehe verlangen; dies ist allgemeines
Negerrecht."--KOHLER, "Ueber das Negerrecht, namentlich
in Kamerun," _ZVR._, XI, 441, 442. See also HENRICI,
"Das Recht der Epheneger," _ibid._, 135; BASTIAN,
_Rechtsverhältnisse_, 179 (Gold Coast).
[789] WESTERMARCK, _op. cit._, 528, 529: _ap._ AMÍR'
ALÍ, _Personal Law of the Mahommedans_ (London, 1880),
chaps. xii ff.
"According to the Talmudic Law, the wife is authorized to
demand a divorce if the husband refuses to perform his
conjugal duty, if he continues to lead a disorderly life after
marriage, if he proves impotent during ten years, if he suffers
from an insupportable disease, or if he leaves the country
forever."--WESTERMARCK, 528; GLASSON, _op.
cit._, 149 ff. Consult also AMRAM, _The Jewish Law of
Divorce_, 63-77, who gives an interesting discussion of the
woman's power of divorce; and, besides the causes just named,
mentions also "refusal to support," "apostasy," "wife-beating,"
when the wife is not at fault, and "false charge of ante-nuptial
incontinence." _Cf._ LETOURNEAU, _op. cit._, 303.
II. THE FORM OF DIVORCE
The form of divorce, like the rules relating to the right and
its conditions, varies greatly among the races of mankind. Very
frequently, usually among the lowest peoples, it takes place without
any ceremony.[790] Sometimes, however, the procedure is fixed by
law or custom. A symbolical act is occasionally sufficient, as with
the east African Wazaramo, where the husband by way of divorce
hands the wife a piece of holcus reed, on receiving which she must
at once leave the house or be driven out.[791] The Unyoro husband
observes a similar rite.[792] It is likewise a private transaction
in Morocco, where the man rejects the woman by a bill of divorce.
The same procedure may be employed in China; and a three-fold
proclamation before witnesses is adequate among the Somali.[793]
In Dawan (west Timor) it takes place in a council composed of the
relations of the man and wife, where the cause is weighed and
determined; but in this assembly neither the chiefs nor the eldest
have any voice.[794] Similar councils are common among African
tribes.[795] In many instances, however, exactly the opposite rule
prevails, the decision of the "eldest," the "chiefs," or of some
other magisterial, priestly, or judicial authority being requisite
for a legal separation.[796]
[790] For examples see POST, _Familienrecht_, 258;
_idem_, _Afrikanische Jurisprudenz_, I, 452.
[791] _Ibid._, I, 452.
[792] Here the man divorces his wife by cutting in two a piece of
"Rindenstoff, von dem er eine Hälfte behält und eine Hälfte dem
Vater der Frau zuschickt."--POST, _loc. cit._
[793] MÖLLENDORFF, _Das chin. Familienrecht_, 33;
POST, _op. cit._, I, 452.
[794] POST, _Familienrecht_, 259.
[795] POST, _Afrikanische Jurisprudenz_, I, 453.
[796] In the Indian Archipelago a priest is necessary, for
instance, on the islands of Gorong and Seranglao; among the
Buginese; as also with the Makassars, where he receives 3 gulden
for his trouble: POST, _Familienrecht_, 259, 260.
III. THE LEGAL EFFECTS OF DIVORCE
Not less diversified are the customs governing the effects of
divorce; and here, as in the case of its varying forms and
conditions, one is almost as often surprised by the reasonableness
and stability of early institutions as he is shocked at their
harshness or injustice when regarded from the civilized standpoint.
In the disposal of the children the existing system of kinship is
very widely determinative. Among a great many peoples, in case of
separation, the children follow the father or the mother according
as mother-right or father-right prevails;[797] and where a mixed
system, or rather a coincidence of mother-right and paternal
authority,[798] is found, or else relationship is cognatic, they
are divided between the parents or their kindred.[799] The division
is determined by a variety of rules among different peoples. Often
they are equally divided, regardless of sex.[800] Sometimes, as in
Bulgaria,[801] Burma,[802] and among the Natchez Indians,[803] the
daughters follow the mother and the sons remain with the father.
In still other cases, as in certain South Slavonian districts,
the father takes the adult children, while those of tender years
are left in the mother's hands. Such is the rule in Zara and in
Bosnia.[804] In Lika, according to Krauss, when all the children
are males, the mother receives the minors, if the father consents;
but when they are of both sexes, the sons follow the father and
the daughters the mother. In this last case, however, the man is
required to pay the divorced woman whatever is needed to supply
the bridal outfit of the daughters when they reach marriageable
age. When it happens at the time of separation that all the
children are grown-up daughters, they are allowed a free choice
between the parents. Should none remain with the father, the mother
and daughters are entitled to all the property gained during
marriage.[805] Often in case of divorce the children belong to the
innocent party;[806] unless children are regarded as a burden, when
the opposite rule prevails;[807] or unless the system of kinship
determines the disposition of the offspring, when an equitable
adjustment is otherwise made. Thus among the African Fantis of
the Gold Coast--where by law the children belong to the mother's
family--in case of divorce through fault of the woman, the man is
entitled to a sum equal to 22s. 6d. for each child; and when by
stipulation the sons remain with the father, he is nevertheless not
permitted to sell them or put them in pawn. If the divorced wife
cannot restore to the husband the price paid for her, the children
are left with him as a pledge for the debt until by their service
they have paid it with 50 per cent. interest. In this way, we are
told, children often become slaves for life to their own father and
as such are even transmitted to his heirs.[808]
[797] So in case of divorce among the Omahas, where, as
DORSEY believes, "father-right has succeeded
mother-right," the woman cannot take the children with her if the
man is unwilling; although in practice they "are sometimes taken
by their mother, and sometimes by her mother or their father's
mother."--"Omaha Sociology," _III. Rep. of Bureau of Eth._, 225,
262.
In China a divorce completely dissolves the marriage; the woman
returns to her family, if it will receive her; the children
remain with the father; and the purchase price is returned
to him, unless his conduct has caused the divorce. When her
family declines to receive the woman she becomes _sui juris_:
MÖLLENDORFF, _Das chin. Familienrecht_, 34.
[798] See chap. i, 21 ff., above.
[799] POST, _Familienrecht_, 260-62; _idem_,
_Afrikanische Jurisprudenz_, I, 447, 448; _idem_, _Grundlagen_,
276, 277.
[800] So in the Malay Rawas, where kinship is cognatic. Here, in
case of an odd number, the undivided child is left temporarily
with the mother, but the father has the right on the payment of
the equivalent of 8 reichsthaler to claim the child when it no
longer needs the mother's care: POST, _Familienrecht_,
261, 262.
[801] KRAUSS, _Sitte und Brauch der Südslaven_, 297.
[802] When the divorce is by common consent: KOHLER, in
_ZVR._, VI, 172; POST, _Familienrecht_, 262. For African
examples see POST, _Afrikanische Jurisprudenz_, I, 449.
[803] PRATZ, _Hist. de la Louisiane_, II, 387.
[804] KRAUSS, _Sitte und Brauch der Südslaven_, 295, 296.
[805] _Ibid._, 295. Sometimes all the children go to the father
or to the house-community, the mother receiving back the dotal
gift: _ibid._, 296, 297.
[806] POST, _Grundlagen_, 277; _idem_, _Afrikanische
Jurisprudenz_, I, 448 ff.; _idem_, _Familienrecht_, 262, 263.
[807] Thus in Morocco the husband who puts away his wife must
keep the children; POST, _Afrikanische Jurisprudenz_, I,
449.
[808] _Ibid._, I, 448. _Cf._ LETOURNEAU, _L'évolution du
mariage_, 286.
Very similar in variety and character are the rules governing the
disposition of the property when a marriage is dissolved. These are
mainly dependent in each case upon the general principles of the
family law relating to property rights.[809] Sometimes, as among
the South Slavonians,[810] each receives back the property which
he had at the time of the marriage, while the common earnings are
divided, though not always in equal portions.[811] But as the most
general rule responsibility for the divorce is of vital importance
in determining the course to be pursued. The man or the woman who
arbitrarily dissolves the marriage, or whose guilty conduct is the
cause of separation, usually suffers a decided disadvantage. Thus
the woman must restore the dotal gift or the presents received from
her husband; and the purchase price must be repaid by herself or
by her kindred. On the other hand, the man who puts away his wife
without just cause must often forfeit all claim to restitution of
the bride-money, perhaps lose his children, and even suffer other
penalties besides, such as the payment of alimony.[812]
[809] POST, _Grundlagen_, 276.
[810] So in Lika. In Stara Pazva the woman receives back
her dotal portion; and in Stro[vs]inci common gains are
divided: KRAUSS, _op. cit._, 295, 296; POST,
_Familienrecht_, 316.
[811] In the archipelago of Seranglao and Gorong the lands and
houses which each party had before the marriage are retained by
each, and the winnings are divided, the man receiving two-thirds
and the woman one-third: POST, _loc. cit._
[812] HENRICI, "Das Recht der Epheneger," _ZVR._,
XI, 135 (alimony). For many examples of these rules see
POST, _Familienrecht_, 316-20; _idem_, _Afrikanische
Jurisprudenz_, I, 441-47. Thus in Morocco, should the husband put
away his wife without cause, he must give her in presence of the
judge a present (_etwas Beliebiges_) in value to suit himself;
and a similar present is adequate for either party divorcing
the other among the Moorish Braknas. In the East African city
of Harar the husband responsible for the separation loses the
purchase price, pays the woman a sum equal to it in value, and
besides is obliged to support her outside of his dwelling during
a term to be fixed by the _cadi_: POST, _Familienrecht_,
320; _idem_, _Afrikanische Jurisprudenz_, I, 443, 445. In the
South Slavonian Bocca, Crnagora, and Herzegovina the husband
who puts away his wife because she is affected by a disease is
usually required to give her a lifelong support; and ordinarily,
when he is accountable for the separation, he must pay a fine
of from 50 to 100 thaler: KRAUSS, _op. cit._, 567. For
various illustrations see LETOURNEAU, _op. cit._, 289 ff.
Especially interesting among uncivilized or backward races are the
effects of divorce with respect to second marriage or the remarriage
of the parties to one another. Everywhere, apparently, the man
who puts away his wife or has been divorced by her is allowed to
contract a second marriage immediately, or, at any rate, after a
very short interval.[813] This follows almost as a matter of course
where wife-capture or wife-purchase exists, or where polygyny
prevails.[814] But with regard to the second marriage of a divorced
woman usage greatly varies. Among a number of peoples she is free
to marry again, if she likes, even when she is responsible for the
separation.[815] Generally, however, her freedom is restricted
in this regard; and this is especially apt to be the case where
wife-purchase exists; for then the legal rights of the husband
in the woman are by no means extinguished by the dissolution of
marriage. Her status as a wife must thus be distinguished from her
position as property or as the object of contract. Accordingly
for this or some other reason the woman who puts away her husband
is sometimes absolutely forbidden to form a second marriage. Such
is the case among peoples so little advanced as the Ashantees and
Hottentots; while the Banjun wife who divorces her husband may
not marry again in the same village where she found her first
spouse.[816] Still more rigorous is the rule in Samoa, where the
divorced woman is forbidden to remarry even after her husband's
death.[817] Between the extremes of entire freedom and entire
prohibition the remarriage of a woman is hampered by a variety of
conditions, some simple and others severe. The Kafir woman may be
married again by her father when she has divorced her husband with
consent of the tribal chief. Sometimes the second marriage depends
on the return of the marriage-gift or the purchase price; or the
woman must wait a certain period, as three months or a year, before
contracting it.[818] In several instances, doubtless as the result
of purchase, after returning to her father's house she remains at
her husband's disposal until he formally sets her free; while in yet
other cases she may be reclaimed by him within a certain definite
time. So with the old Arabians the purchased wife was looked upon as
the husband's property, and hence divorce did not release her from
his claims.[819] In Islam, as already explained, where the ancient
Arabian rule of triple declaration of divorce still survives, a man
who has divorced his wife by a single or even a second declaration
of the formula "can take her again within three months without
asking her consent."[820] Among the Bedouins, in like spirit, when
the divorce takes place at the instance of the woman, the man
may refuse to repeat the formula of separation without which she
cannot contract a second marriage.[821] Very frequently the second
marriage, whether of a widow or a divorced woman, is not looked upon
as so important as the first. The wedding ceremonial and festivities
are less marked; the customary time of seclusion after the nuptials
is shorter; the bride-price is much smaller; or the wife has a less
advantageous position with respect to property.[822] On the other
hand, the widow or divorced woman who will remarry has sometimes an
important compensation for the loss of social prestige, since she
may freely bestow her hand in choosing a second mate.[823]
[813] Thus, among the Moors of Morocco, who almost all practice
monogamy, the man who rejects his wife is not permitted to
marry again within four months: POST, _Afrikanische
Jurisprudenz_, I, 450.
[814] _Cf._ the suggestion of POST, _loc. cit._
[815] See the examples enumerated in POST,
_Familienrecht_, 264; _idem_, _Afrikanische Jurisprudenz_, I,
453; among them are the people of Tonga, Tahiti, and Unyoro; also
Dawan (West Timor) when the divorce is through the fault of the
husband.
[816] POST, _Afrikanische Jurisprudenz_, I, 450.
[817] WAITZ-GERLAND, _Anthropologie_, VI, 129;
POST, _Familienrecht_, 263.
[818] Thus in the African Sarae the divorced woman must wait two
months before remarriage: MUNZINGER, _Ostaf. Studien_,
387; among the Beni Amer, three months; while the Marea woman is
obliged to refrain for a year: _ibid._, 241, 321.
[819] See especially on Arabian divorce, SMITH,
_Kinship and Marriage_, 91 ff., who emphasizes the effect of
wife-purchase. Compare POST, _Familienrecht_, 263.
Among the Kabyles of Algiers for mistreatment the woman has the
right of "insurrection;" she may return to her father's house;
but without the consent of her husband she cannot remarry:
LETOURNEAU, _L'évolution du mariage_, 295. _Cf._
HANOTEAU ET LETOURNEUX, _Kabylie_, II, 159, 164, 177
ff. The custom of insurrection appears to be general in Islam:
HELLWALD, _Die mensch. Familie_, 409.
[820] SMITH, _op. cit._, 93.
[821] KLEMM, _Kulturgeschichte_, IV, 151; POST,
_Familienrecht_, 263, 264.
[822] See the interesting proofs for various African tribes in
POST, _Afrikanische Jurisprudenz_, I, 454-57.
[823] _Ibid._, 455. Sometimes, as among the equatorial tribes of
West Africa, the widow shows a repugnance to second marriage:
returning to her family, she never marries again: _ibid._, 456.
Perhaps as a general rule the divorced man and woman are as free to
remarry each other as they are to contract a second marriage with
other persons;[824] but sometimes the reunion is dependent upon
the observance of special legal formalities, or it can take place
only after a fixed interval.[825] In rare instances, as among the
ancient Aztecs, the remarriage of a divorced couple is absolutely
forbidden.[826]
[824] POST, _Familienrecht_, 265; _idem_, _Afrikanische
Jurisprudenz_, I, 453, 454.
[825] Thus in Dawan (West Timor), when peace is made between
the divorced couple, the party who caused the separation must
pay the parents of the other five swine and five pieces of
linen. A year's interval must elapse with the African Peulhs
of Futa-Jallon. In Unyoro (Africa) the reunion is celebrated
by slaughtering a beef; and among the Berbers of Dongola the
divorced man gives the woman two pieces of cotton stuff:
POST, _Familienrecht_, 265; _idem_, _Afrikanische
Jurisprudenz_, I, 453.
[826] KOHLER, "Das Recht der Azteken," _ZVR._, XI,
61; _Cf._ also KLEMM, _Kulturgeschichte_, V, 35;
POST, _Familienrecht_, 265.
IV. FREQUENCY OF DIVORCE
The laws of divorce among backward races, it is thus perceived,
are full of interest for the student of social institutions. One
comes from the study with a clearer perception of the fact that
such institutions are but the outward expression of human life--of
slow experience and experimentation; and one gains a deeper
respect for the concrete results of primitive culture. Especially
important is the relation of divorce to the stability of society.
The conservatism prevailing even among rude peoples with respect
to the liberty of divorce is remarkable. This may be due in part
to the fact that primarily marriage does not rest so much upon the
sexual instinct as upon family needs.[827] In some instances, where
dissolution of the marriage is free to either party, or where it is
the peculiar right of the man, divorce is exceedingly rare.[828]
The American Indian tribes are conspicuous in this regard.[829]
Sometimes there is a strong social sentiment against it. Such is the
case in China. Formerly among the Japanese, like the ancient Aztecs,
divorces were infrequent;[830] and among many less advanced peoples,
such as the Afghans, the Veddahs, or even the Zulus, the sentiment
of love is doubtless a stronger check upon instability of the family
than is commonly supposed.[831]
[827] STARCKE, _Primitive Family_, 258, 259.
[828] For examples see FRIEDRICHS, "Familienstufen und
Eheformen," _ZVR._, X, 251, 252.
[829] Divorce is rare among the Muskogi and Natchez
(Florida-Dakota), the Caribs, the aborigines of Paraguay
and Nicaragua, and the Eskimo: _Friedrichs_, _loc. cit._;
WESTERMARCK, _Human Marriage_, 524. _Cf._
POWERS, _Tribes of Cal._, 239 (Wintun); DORSEY,
_Siouan Sociology_, 243 (rare in the better class).
[830] For China see HELLWALD, _Die mensch.
Familie_, 380, 381; TSCHENG-KI-TONG, _China und die
Chinesen_, 55; WAKE, _Marriage and Kinship_, 232;
DOOLITTLE, _Social Life of the Chinese_, I, 106, 107;
MEDHURST, in _Trans. Royal As. Soc., China Branch_,
IV, 27: WESTERMARCK, _op. cit._, 525. For Japan see
WAKE, _op. cit._, 233; WESTERMARCK, _op. cit._,
525; and for the Aztecs, BANCROFT, _Native Races_, II,
263-65; WAITZ, _Anthropologie_, IV, 132.
[831] _Cf._ the remarks of WAKE, _op. cit._, 218; and
compare RATZEL, _Hist. of Mankind_, II, 434 (Zulus); and
SARASIN, _Die Weddas von Ceylon_, I, 458, 468, 469.
The rules governing the division of property are important in this
connection; for, as Westermarck suggests, the selfish interests of
the husband "prevent him from recklessly repudiating his wife. In
many instances divorce implies for the man a loss of fortune."[832]
In rare cases he is obliged to provide for the wife's support
even after the separation.[833] Often, as already seen, the woman
receives back her dotal gift and whatever she brought with her at
the marriage; while frequently the husband is obliged to surrender a
portion or all of the common property. Thus "among the Karens, if a
man leaves his wife, the rule is that the house and all the property
belong to her, nothing being his but what he takes with him. Among
the Manipuris, according to Colonel Dalton, a wife who is put away
without fault on her part, takes all the personal property of the
husband, except one drinking cup and the cloth round his loins;"
and "similar rules prevail among the Galela, and in the Marianne
Group."[834]
[832] WESTERMARCK, _op. cit._, 531.
[833] WESTERMARCK, _op. cit._, 19, gives examples.
[834] WESTERMARCK, _op. cit._, 531, and the authorities
cited in the notes. The same influence was a check upon divorce
in Athens: LETOURNEAU, _op. cit._, 304.
The conservative influence of property is even more marked in
connection with wife-purchase--a powerful deterrent of hasty
divorce. In the case of a sale-marriage, even in the weakened form
of dower to the woman, the guilty or responsible party usually
suffers a decided disadvantage from the separation. The man who
repudiates his wife without just cause, as already shown, may not
only forfeit his right to reclaim the bride-money, and incur other
losses on the division of the property; but often, particularly
where the maternal system of kinship prevails, he may have to
surrender his children as well; and the woman who unjustly leaves
her husband may lose all that she brought with her into the home or
compel her kindred to restore the purchase price.[835]
[835] On the conservative influence of wife-purchase see
WESTERMARCK, _op. cit._, 532, 535, 536; and for curious
and instructive illustrations of the effects of purchase read
especially the detailed account of the law of divorce among the
Kabyles of Algiers in LETOURNEAU, _op. cit._, 292-96.
The man has the sole right of divorce. As a condition of setting
the woman free he may demand the _lefdi_, or price of redemption,
and fix such other terms as he pleases; as that the _lefdi_ shall
be double or triple, if she marry such or such a man. The sum
may thus be so large as to amount to a prohibition of marriage.
On the other hand, a liberal price may be an inducement to free
the woman. Among some of these tribes the amount of the _lefdi_
is fixed by law, usually at a sum higher than the _thâmanth_, or
purchase price of a virgin or a widow, so as by working upon the
cupidity of the husband to induce him to pronounce the triple
formula and thus suffer the woman to contract a new marriage. The
children under all circumstances follow the father.
Here also the results of the genealogical organization must be
considered. The blood-feud, paradoxical as it may seem, often acts
as a conservative power among primitive men. The wife's kindred may
protect her from the vengeance of a brutal husband whom she has
deserted; or they may send her back when she has acted indiscreetly
or when they dread the wrath of the husband's clan. The organization
of society on the basis of kinship has another important bearing
upon the effects of divorce. It appears to be practically a
universal rule among uncivilized races that the repudiated wife or
the woman who legally puts away her husband shall return to her
own family or clan, whose duty it is to receive her. Accordingly,
the lot even of the savage woman has mitigating conditions not
always accorded by the laws of civilized society. "In savages,"
observes Mason, "where every man and woman and child is billeted
somewhere, there is no such thing as thrusting man or woman out into
nowhere.... Should the man wish to repudiate his wife, she cannot
be sent out into the jungle or forest; she must be returned to
somebody."[836]
[836] MASON, _Woman's Share in Primitive Culture_, 229,
230.
PART II
MATRIMONIAL INSTITUTIONS IN ENGLAND
CHAPTER VI
OLD ENGLISH WIFE-PURCHASE YIELDS TO FREE MARRIAGE
[BIBLIOGRAPHICAL NOTE VI.--The leading sources for this chapter
are, of course, the ancient folk-laws, drawn up after the
wandering and settlement of the Teutonic peoples. Of these
the most complete and the most primitive are the old English
"codes," in Schmid's _Die Gesetze der Angelsachsen_ (Leipzig,
1858), until recently the best edition available; or in Thorpe's
_Ancient Laws and Institutes of England_ (8vo, 2 vols.; folio,
1 vol.; Record Commission, London, 1840), which, though not
so well edited, has the advantage of an English version of
the Anglo-Saxon texts. But Liebermann, in _Die Gesetze der
Angelsachsen_ (Halle, 1898-), is placing in the hands of
scholars a more complete and a thoroughly critical edition
which must supersede that of Schmid. For Germany the _Leges
barbarorum_ are contained in Walter's _Corpus juris germanici
antiqui_ (3 vols.; Berlin, 1824); and in the later and better
editions of the _Monumenta germaniae historica_, particularly
the _Leges burgundionum_, edited by L. R. De Salis (4to;
Hanover, 1892); the _Leges alamannorum_, edited by Karl Lehmann
(4to; Hanover, 1888); and the general collection of _Leges_,
edited by G. N. Pertz, H. Brunner, R. Sohm, and Karl Zeumer (5
vols., folio; Hanover, 1835-89). These laws are conveniently
grouped according to subject by Davoud-Oghlou, _Histoire de la
législation des anciens Germains_ (Berlin, 1845). Behrend, _Lex
salica_ (Berlin, 1874), has a good edition of the laws of the
Salian Franks. There are some passages of fundamental interest,
notably the celebrated c. 18, in Tacitus's _Germania_; and an
interesting proof of the surviving symbols of wife-purchase may
be found in Fredegarius, _Gregorii Turon. historia francorum
epitomata_ (Vol. IV of Guadet and Taranne's version of Gregory,
171-73, Paris, 1838; or in Vol. II of Giesebrecht's translation,
273-75, Leipzig, n. d.). An old English betrothal (_beweddung_)
ritual of surpassing interest is preserved in the collections
of Liebermann, Schmid, and Thorpe referred to; and the later
development of the German betrothal ceremony is illustrated
by the curious Swabian ritual of the twelfth century, first
published by Massmann in _Rheinisches Museum für Jurisprudenz_,
III (281 f.), as also in his _Fluchformularen_ (179); and later
in Friedberg's "Zur Geschichte der Eheschliessung," _ZKR._, I,
369, 370; in the same author's _Eheschliessung_ (26, 27); and in
Sohm's _Eheschliessung_ (319, 320).
The modern literature of early German and old English marriage
is already very large. Among the more important writings of
the eighteenth and early nineteenth centuries are Gundling,
_De emptione uxorum, dote et morgengaba_ (Leipzig, 1731);
Ayrer, _Dissertatio de jure connubiorum apud veteres germanos_
(Göttingen, 1738); Hofmann, _Handbuch des deutschen Eherechts_
(Jena, 1789); Böhmer, _Ueber die Ehegesetze im Zeitalter
Karl des Grossen und seiner nächsten Regierungsnachfolger_
(Göttingen, 1826-27); Liebetrut, _Die Ehe nach ihrer
geschichtlichen Entwickelung_ (Berlin, 1834); Bosse, _Das
Familienwesen, oder Forschungen über seine Natur, Geschichte und
Rechtsverhältnisse_ (1835); Richecour, _Essai sur l'histoire et
la législation des formes requises pour la validité du mariage_
(Paris, 1856); Smith, "De la famille chez les Burgondes,"
in _Mémoires lus à la Sorbonne_ (1864); and Eckhardt, "Das
Witthum oder Dotalitium und Vidualitium in ihrer historischen
Entwickelung," in _Zeitschrift für deutsches Recht_, X (437
ff.). But in the literature of recent years of first-rate
importance is Sohm's _Das Recht der Eheschliessung_ (Weimar,
1875), perhaps the most acute and able monograph ever written
on the subject; supplemented by his _Trauung und Verlobung_
(Weimar, 1876). The best extended treatise on the history of
the marriage form or contract is Friedberg's _Das Recht der
Eheschliessung_ (Leipzig, 1865). This was preceded by his "Zur
Geschichte der Eheschliessung," in _ZKR._, I, 362-91; III,
147-86 (Berlin and Tübingen, 1861-63); and followed, in his
controversy with Sohm on the character of the betrothal, by his
_Verlobung und Trauung_ (Leipzig, 1876). The Theories of Sohm
and others are examined by Habicht, _Altdeutsche Verlobung_
(Jena, 1879); and, from the standpoint of northern custom, by
Lehmann, _Verlobung und Hochzeit_ (Munich, 1882); and Beauchet,
_Mariage dans le droit islandais du moyen age_ (Paris, 1887).
In this connection may be read Schroeder, _Geschichte des
ehelichen Güterrechts in Deutschland_ (Stettin, 1863-74);
his _Rechtsgeschichte_ (2d ed., Leipzig, 1894); as also
Brunner's very able _Rechtsgeschichte_ (Leipzig, 1887); Ficker,
_Untersuchungen zur Rechtsgeschichte_ (Innsbruck, 1891-99);
Heusler, _Institutionen des deutschen Privatrechts_ (Leipzig,
1885-86); Zoepfl, _Deutsche Rechtsgeschichte_ (Braunschweig,
1871-72); Siegel, _Rechtsgeschichte_ (3d ed., Leipzig, 1895);
Lamprecht, _Deutsche Geschichte_ (Vol. I, Berlin, 1891); Klein,
_Das Eheverlöbniss_ (Strassburg, 1881); and Galy, _La famille
à l'époque mérovingienne_ (Paris, 1901). For many illustrative
particulars should be consulted Grimm's _Rechtsalterthümer_
(Göttingen, 1854); the great work of Weinhold, _Die deutschen
Frauen_ (Vienna, 1882); which may be read in connection with his
_Altnordisches Leben_ (Berlin, 1856). To supplement Weinhold's
works for the more general culture-history of woman in the
German family may be consulted Dahn, "Das Weib in altgerm. Recht
und Leben," in his _Bausteine_, VI (Berlin, 1884); Rullkoetter,
_Legal Position of Women among the Ancient Germans_ (Chicago,
1900); Strack, _Aus dem deutschen Frauenleben_ (Leipzig,
1873-74); Scherr, _Geschichte der deutschen Frauenwelt_ (3d ed.,
Leipzig, 1873); Bernhöft's lively _Frauenleben in der Vorzeit_
(Wismar, 1893); Backer, _Le droit de la femme dans l'antiquité:
son devoir au moyen âge_ (Paris, 1880); the quaint treatise of
Grupen, _De uxore theotisca_ (Göttingen, 1748); the paper of
Schmitt, _Die Schlüsselgewalt der Ehefrau nach deutschem Recht_
(Munich, 1893); and that of Reinsch, _Stellung und Leben der
deutschen Frau im Mittelalter_ (Berlin, 1882).
Further illustrations of domestic and social life are afforded
by the literature of "left-hand" marriages. Thus Klein's
short dissertation, entitled _Beiträge zur Lehre von der
morganatischen Ehe_ (Erlangen, 1897), traces the practice back
to ancient Frankish law. See also Culmann, _Morganatische Ehe
und Ursprung des Feudalismus_ (Strassburg, 1880); Zetzkius, _De
matrimonio ad morganaticam contracto, vulgo: von Vermählung
zur linken Hand_ (Regiomonti, 1692); the anonymous _Geschichte
morganatischer und legitimirter Fürsten- und Grafen-Ehen in
Deutschland_ (Halle, 1874), which gives a chronological account,
century by century, of particular "left-hand" marriages; and the
dissertations of Linckens, Riccius, and Höltzl von Sternstein.
Besides the controversial literature relating to the
so-called _droit de seigneur_ in feudal times, already cited
in Bibliographical Note II, there has been collected a mass
of custom and folk-lore concerning the alleged traces of
wife-purchase and wife-capture, and similar matters, much
of which will carry the reader beyond the period of the
present chapter, but which may serve to complete the picture
of mediæval private life. In this connection may be noted
Wackernagel, "Familienrecht und Familienleben der alten
Germanen," in _Süd-deutsches Taschenbuch_, 1846 (257 ff.);
Schincke, "Hochzeitsgebräuche der Germanen," in Ersch und
Gruber's _Encyklopädie_, II. Sect., T. 9 (166 ff.); Leber,
"Des coutumes et usages anciens relatifs aux mariages," in
his _Collection des meilleurs dissertations_, II (Paris,
1838); Freybe, _Altdeutsches Frauenlob_ (Leipzig, 1873);
Schütz, _Lobschrift auf die Weiber der alten Deutschen_
(Hamburg, 1776); Schulenburg, _Die Spuren des Brautraubes,
Brautkaufes und ähnlicher Verhältnisse in den französischen
Epen des Mittelalters_ (Rostock, 1894); Spirgatis, "Verlobung
und Vermählung im altfranzösischen volkstümlichen Epos,"
in _Wissenschaftliche Beiträge zum Jahresberichte des
Leibniz-Gymnasiums zu Berlin_, Ostern, 1894 (Berlin, 1894);
Krabbes, _Die Frau im altfranzösischen Karlsepos_ (Marburg,
1884); Bücher, _Die Frauenfrage im Mittelalter_ (Tübingen,
1882); Homeyer, _Ueber die Heimath nach altdeutschem Recht,
insbesondere über das Hantgemal_ (Berlin, 1852); Méril,
"Des formes du mariage et des usages populaires qui s'y
rattachaient surtout en France pendant le moyen age," in _Étude
sur quelques points d'archéologie_ (Paris and Leipzig,
1862); Bérenger-Ferraud, "Mariage et progéniture," in his
_Superstitions et survivances_, II (Paris, 1896); and especially
Beauchet's able monograph, _Étude historique sur les formes de
la célébration du mariage dans l'ancien droit français_ (Paris,
1883); Gengler, _De morgengaba secundum leges antiquissimas
germanorum_ (Bamberg, 1843); Spangenberg, _Exercitatio antiqua
doni germanorum matutini, quod vulgo morgengabam appellant_
(Göttingen, 1767); Napiersky, _Die Morgengabe des rigischen
Rechts_ (Dorpat, 1842); Golz, _De morgengaba germanorum_ (Halle,
_ca._ 1860); Fischel, _De conjugum jure germanico debitis_
(Berlin, n. d.). Similar observations have been made for other
parts of Europe. See, for example, Poggi, _Usi nuziali nel
centio della Sardegna_ (Sassari, 1894); Murra, _Usi e costumi
nuziali de Sardegna_: for the _Nozze de Cian-Sappa-Flandinet_
(Bergamo, 1894); Salmone-Marino, _Come se prepari la sposa; uso
nuziale dei contadini di Sicilia_ (Palermo, 1890); Pitre, _Usi
nuziali del popolo Siciliano_ (Palermo, 1878); _idem_, _Usi
natalizi, nuziali e funebri del popolo Siciliano_ (Palermo,
1879); Frati, _Costumanze e pompe nuziali bolognesi nel medio
evo_: for the _Nozze Cian-Sappa-Flandinet_ (Bergamo, 1894);
Reinsberg-Düringsfeld, "Lieben und Freien in Piemont," in
_Illustrirte Frauenzeitung_, June 7, 1875 (Berlin, 1875);
Sakellarios, _Die Sitten und Gebräuche der Hochzeit bei den
Neugriechen verglichen mit denen der alten Griechen_ (Halle,
1880); Gubernatis, _Storia comparata degli usi nuziali in Italia
e presso gli altri popoli Indo-Europei_ (2d ed., Milan, 1878);
and Gennari, _Degli usi de Padovani de' tempi di mezzo ne' loro
matrimonj_ (Venice, 1800).
On the controversy as to the meaning of _mund_ and its place in
the purchase contract, in connection with the views of Sohm,
Dahn, Brunner, Lehmann, Schroeder, and others, see Waitz,
"Ueber die Bedeutung des Mundium im deutschen Recht," in
_Sitzungsberichte der preuss. Akad._, 1886; and Kohler, "Die Ehe
mit und ohne Mundium," in _ZVR._, VI. This question, as well
as other matters, is also treated by Dargun, _Mutterrecht und
Raubehe_ (Breslau, 1883); Kraut, _Vormundschaft_ (Göttingen,
1835-59); and by Rive in his excellent _Vormundschaft im
Rechte der Germanen_ (Braunschweig, 1862). Scheurl's _Das
gemeine deutsche Eherecht_ (Erlangen, 1882), though relating
mainly to a later period, is of use for this chapter; as are
also Königswarter, _Histoire de l'organisation de la famille
en France_ (Paris, 1851); and Laboulaye's very rare book,
_Condition civile et politique des femmes_ (1843); Hofmann's
interesting monograph, _Ueber den Verlobungs- und Trauring_
(Vienna, 1870); Junius, _De annulo romanorum sponsalitio_
(Leipzig); and Müller, _De annulo pronubo, vulgo vom Jaworts-
oder Trauring, de modo computationis graduum, de osculo sancto_
(Jena, 1734).
The strong tendency of Roman legislation of the lower
(Christian) empire to re-establish the family authority and
place the wife in subjection is ably discussed by Meynial, "Le
mariage après les invasions," in _Nouv. rev. hist. de droit_,
XX, 514-31, 737-62; XXI, 117-48 (Paris, 1896-97); with this may
be read Zoepfl, _De tutela mulierum germanic_. (Heidelberg,
1828); and Stobbe, "Die Aufhebung der väterlichen Gewalt nach
dem Recht des Mittelalters," in his _Beiträge_ (Braunschweig,
1865). Koehne has investigated "Die geschlechtsverbindung der
Unfreien im französischen Recht," in Gierke's _Untersuchungen_,
XXII (Breslau, 1888); and the matrimonial relations of
the servile classes are also treated by Jastrow, _Zur
strafrechtlichen Stellung der Sklaven bei Deutschen und
Angelsachsen_, _ibid._, II (Breslau, 1878); Luchaire, _Manuel
des institutions françaises_, 203, 295, 301-3 (Paris, 1892);
Rambaud, _Histoire de la civilisation française_, I, 102,
154, 125, _passim_ (Paris, 1898); Mone, Bader, and Dambacker,
"Eherecht der Hörigen im 13.-16. Jahrhunderte," _Zeitschrift für
Geschichte des Oberrheins_, VII, 2 (1856); and in a paper "Von
Loslassung der unterthänigen Weibspersonen in der Oberlausitz
zum Verheurathen," in _Arbeiten einer Gesellschaft in der
Oberlausitz_, II, 118 ff. (1750).
For Anglo-Saxon marriage the best monograph is Young's
"Anglo-Saxon Family Law," in _Essays_ (Boston, 1876).
Very good papers also are Amira's _Erbenfolge und
Verwandtschafts-Gliederung nach den altniederdeutschen
Rechten_ (Munich, 1874); and Ashworth, _Das Witthum (Dower) im
englischen Recht_ (Frankfort, 1898). Opet, "Die erbrechtliche
Stellung der Weiber in der Zeit der Volksrechte," in Gierke's
_Untersuchungen_, XXV (Breslau, 1888), strongly combats the
commonly accepted theory that the Anglo-Saxon woman was
neglected in the law of inheritance; in this agreeing with
Turner, _History of the Manners, Landed Property, &c., of
the Anglo-Saxons_ (1805); and criticising Glasson, _Droit de
succession_ (Paris, 1886), which may be read with his _La
famille et la propriété chez les Germains_ (Orleans, 1885).
Henry Adams in _Historical Essays_ (New York, 1891) likewise
takes a very favorable view of the legal condition of the early
German married woman. Roeder, _Die Familie bei den Angelsachsen_
(Halle, 1899), has made good use of literary sources. Pollock
and Maitland, _History of English Law_ (Cambridge, 1895), give
a clear and concise sketch of old English matrimonial custom;
and there is an excellent article by Florence Buckstaff in
the _Annals of the American Academy_, IV, on "Married Woman's
Property in Anglo-Saxon and Anglo-Norman Law" (Philadelphia,
1894). Of service also are Wright, _History of Domestic Manners
and Sentiments in England during the Middle Ages_ (London,
1862); Thrupp, _The Anglo-Saxon Home_ (London, 1862); Esmein's
edition of Gide, _Étude sur la condition privée de la femme_
(Paris, 1885); Lingard, _History and Antiquities of the
Anglo-Saxon Church_ (London, 1845; 2d ed., London, n. d.);
Phillips, _Geschichte des angelsächsischen Rechts_ (Göttingen,
1825); _idem_, _Reichs- und Rechtsgeschichte seit der Ankunft
der Normannen_ (Berlin, 1827-28); Hodgetts, _Older England_
(London, 1884); Jeaffreson, _Brides and Bridals_ (London, 1872);
and Glasson, "La famille," in his _Histoire du droit et des
institutions de l'Angleterre_, I. For further illustration of
matrimonial law and custom read Dezert, _Les unions irrégulières
en Navarre_ (Caen, 1892); and Hanauer, "Coutumes matrimoniales
au moyen age," in _Mémoires de l'académie de Stanislas_ (Nancy,
1892).]
I. THE PRIMITIVE REAL CONTRACT OF SALE AND ITS MODIFICATIONS
It is not improbable, as already explained, that wife-capture may
have existed among our ancestors,[837] though some of the evidence
for its survival collected from the folk-laws by Dargun and others
may perhaps more rationally be regarded merely as proof of the
brutality and lawlessness incident to the transitional period of the
"barbarian invasion."[838] The testimony of the law-books, however,
points more clearly to the former existence of wife-purchase. With
the Old English, as well as among the other Teutonic peoples, at
the dawn of history marriage was a private transaction, taking the
form of a sale of the bride by the father or other legal guardian
to the bridegroom. The procedure consisted of two parts. First was
the _beweddung_, or betrothal; and second, the _gifta_, or actual
tradition of the bride at the nuptials.[839] The _beweddung_ was
a "real contract of sale,"[840] essential to which was one-sided
performance; that is, payment by the bridegroom of the _weotuma_
or _Witthum_, the price of the bride.[841] In ancient times the
person of the woman was doubtless the object of purchase; and
within the historical period woman, among most Teutonic peoples,
remained in perpetual tutelage.[842] When the guardianship of the
father or other male relative, as representative of the clan-group
or _Sippe_, ended, that of the husband began. But, however hard may
have been the lot of the married woman, manifestly her condition
was very different from that of a chattel. This fact is not wholly
inconsistent with wife-purchase; for, as already seen, a certain
liberty, even of choice, may be enjoyed by the woman where she is
legally the object of sale. It has given rise to a theory of the
betrothal which it is thought the records sustain. The _weotuma_,
it is contended, must be looked upon as the price of the _mund_, or
protectorship over the woman, which is transferred from the father
or legal guardian to the husband. This is the view now perhaps most
generally accepted, but it has by no means gone unchallenged.[843]
Ethically and historically, as suggested in the preceding chapter,
the rise of a legal distinction between the purchase of property
in the wife and the acquirement of authority over her is highly
important. But, practically, when the powers of the husband are
so great as they were among our ancestors, there can be little
difference in popular conception between possession of the _mund_
and ownership of the woman.[844] As a matter of fact, the old
English laws speak bluntly of "buying a maid;"[845] and in Germany
"to buy a wife" was a familiar phrase for marriage throughout the
Middle Ages.[846]
[837] BRUNNER, _Rechtsgeschichte_, I, 72, 73, and
the sources there cited. The former existence of wife-capture
among the Germans is also held by SIEGEL,
_Rechtsgeschichte_, 450; HEUSLER, _Institutionen_, II,
280; SCHULENBURG, _Die Spuren des Brautraubes_, 10 ff.:
BERNHÖFT, _Frauenleben_, 8 ff.; LAMPRECHT,
_Deutsche Geschichte_, 97 ff., 107 ff.; SEHLING
_Unterscheidung der Verlöbnisse_, 29; OPET, _Die
erbrechtliche Stellung der Weiber_, 16 ff.; COLBERG,
_Ueber das Ehehinderniss der Entführung_ (Leipzig, 1869), 25.
[838] DARGUN, _Mutterrecht und Raubehe_, 111-25,
critically examines these passages. The fact that a marriage
effected by rape or abduction is often treated as valid, even
when the purchase price is not paid, is especially urged as
evidence of the survival of customary wife-capture. Thus in
ÆTHELBERHT, 82, 83; ÆLF., 8; ÆTHELRED,
VI, 26, 39: SCHMID, _Gesetze_, 9, 75, 231, 301, a
penalty is exacted in such cases, though the marriage appears
to be valid. But is it not simpler to explain this on grounds
still familiar to all? The suggestion of the text seems to be
sustained by the materials collected by WEINHOLD,
_Deutsche Frauen_, I, 308-15. _Cf._ JEAFFRESON, _Brides
and Bridals_, I, 12-31.
[839] _Beweddunge_ is the Anglo-Saxon term, and it is so used in
the old English formulary of the tenth century: SCHMID,
_Gesetze_, Anhang, VI, 390. It means the act of "contracting" or
"pledging," associated with the verb _beweddian_, "to contract":
SCHMID, 535, 536. It has the same origin as the modern
"wed," "wedding," etc. On the _beweddung_ see SIEGEL,
_Deutsche Rechtsgeschichte_, 450 ff.
[840] In early German law the "real contract" is the only
contract recognized. There is no contract by mere convention,
no "consensual" contract. Originally two-sided fulfilment was
required. Thus, according to SOHM, _Eheschliessung_, 24
ff., in case of betrothal, payment of the price and tradition
of the bride went hand in hand. Later one-sided performance,
or even a formal act, was deemed sufficient, and through it
the _title_ was actually transferred; the purchaser thus
acquiring the "negative" as opposed to the "positive" rights of
property--the power to use and enjoy. _Cf._ HABICHT,
_Altdeutsche Verlobung_, 6, 7; LOENING, _Geschichte
des deutschen Kirchenrechts_, II, 577-79; YOUNG, in
_Essays_, 167; LEHMANN, _Verlobung und Hochzeit_,
77; FRIEDBERG, _Verlobung und Trauung_, 7, 8;
STOBBE, _Reuerecht und Vertragschluss nach älterem
deutschem Recht_ (Leipzig, 1876).
[841] Anglo-Saxon _weotuma_: ÆLFRED, _Ecc. Laws_, 12,
29: SCHMID, _Gesetze_, 58, 62. SCHROEDER uses
the term _Muntschatz_, which, however, is only found in Friesic
law: SOHM, _Eheschliessung_, 33, note. Some form of
_weotuma_ appears in many dialects: Old German _widemo_, giving
rise to _Witthum_; Longobardian _meta_; Burgundian _wittemon_;
Friesic _wetma_ (_wethma_, _weetma_); Alamannian _widem_:
SCHROEDER _Güterrecht_, I, 46, 47, 24; SCHMID,
_op. cit._, 675; GRIMM, _Rechtsalterthümer_, 422-24;
YOUNG, in _Essays_, 165; WEINHOLD, _Deutsche
Frauen_, I, 320, note, 336, _passim_; SCHROEDER,
_Rechtsgeschichte_, 291, note, 161. _Cf._ ECKHARDT,
"Das Witthum," in _Zeitsch. für deutsches Recht_, X, 437
ff.; HELLWALD, _Die mensch. Familie_, 315, 316;
SMITH, _La famille chez les Burgondes_, 5 ff.
[842] On the tutelage of woman in early Germanic law see
GRIMM, _Rechtsalterthümer_, 447 ff., 465; SOHM,
_Eheschliessung_, 22, 50 ff.; WEINHOLD, _Deutsche
Frauen_, I, 193 ff.; II, 27; GIDE, _Étude sur la
cond. privée de la femme_, 280 ff., 339; RIVE,
_Vormundschaft_, I, 218 ff.; KRAUT, _Vormundschaft_, I,
171-86; LEBER, _Des coutumes_, 22 ff.; REINSCH,
_Stellung und Leben der deutschen Frau_, 4 ff.; HABICHT,
_Altd. Verlobung_, 8 ff., 68; FRIEDBERG,
_Eheschliessung_, 17 ff., _passim_; SCHROEDER,
_Güterrecht_, I, 1 ff.; _idem_, _Rechtsgeschichte_, 64 ff.,
_passim_; BRUNNER, _Rechtsgeschichte_, I,75,89
ff.; DARGUN, _Mutterrecht und Raubehe_, 23 ff.;
KOHLER, "Die Ehe mit und ohne Mundium," _ZVR._, VI, 321
ff.; WAITZ, in _Sitzungsberichte der preuss. Akademie_,
1886, 375 ff.; BUCKSTAFF, in _Annals of Am. Acad._, IV,
233 ff.; STOBBE, "Die Aufhebung der väterlichen Gewalt
nach dem Recht des Mittelalters;" in _Beiträge_, 1-24, reviewing
and criticising KRAUT; ZOEPFL, (R.), _De tutela
mulierum germanic_. (Heidelberg, 1828); EMMINGHAUS,
_De praecipuis germ. fem._ (Jena, 1756); and ZOEPFL
(H.), _Deutsche Rechtsgeschichte_, III, 1-4. YOUNG,
"Anglo-Saxon Family Law," _Essays_, 148 ff., denies that _patria
potestas_ existed in German law; and a similar view is taken by
ADAMS, _Political Essays_, 31 ff.; but HEUSLER,
_Institutionen_, II, 275, takes the opposite view. _Cf._
SMITH, _La famille chez les Burgondes_, 13 ff.
FICKER, _Untersuchungen zur Rechtsgeschichte_, III, 401
ff., insists that the sex-tutelage (_Geschlechtsvormundschaft_)
did not exist under Frank law.
[843] That the betrothal is a contract relative to the _mund_
is stoutly maintained by DAHN, _Das Weib in altgerm.
Recht und Leben_, 4 ff., who absolutely rejects wife-purchase,
declaring such an idea to be "abominable and impossible"
("abscheulich und unmöglich"). This theory is also held by
KRAUT, _Vormundschaft_ I, 171; SCHROEDER,
_Güterrecht_, I, 27 ff., 38, 79; yet SCHROEDER,
_Rechtsgeschichte_, 68, 291 ff., regards the German marriage as
in form a purchase of the bride. RIVE, _Vormundschaft_,
I, 258 ff., _passim_, denies that the betrothal has any
relation to the _mund_, and rejects entirely the view that the
sale-marriage ever existed among the Germans. HABICHT,
_Altdeutsche Verlobung_, 8 ff., 12, admits that originally the
_mund_ was a "property right" and the wife a "thing," though in
the earliest written sources she appears as _Rechtssubject_.
SOHM, _Eheschliessung_, 22, regards the _Witthum_ as
the price of the _mund_; but in his _Trauung und Verlobung_,
15, 16, he drops this view and declares the betrothal to be a
contract to "give the bride in marriage," or, more directly, a
"Kauf der Jungfrau." FRIEDBERG, _Eheschliessung_, 17,
18, appears to hold that it was the _mund_ which was conveyed;
but elsewhere he seems to favor the opposite view for the early
period. See his _Verlobung und Trauung_, 7 ff.; _Lehrbuch_, 339;
and _Zur Geschichte_, 362 ff. Pollock and Maitland, _Hist. of
Eng. Law_, II, 362, declare that "whatever guesses we may make
about a remoter age, the 'bride-sale,' of which Tacitus had
heard, was evidently no sale of a chattel. It was very different
from the sale of a slave girl; it was a sale of the _mund_, the
protectorship over the woman." GIDE, _Étude sur la cond.
privée de la femme_, 196-215, 335 ff.; and HENRY ADAMS,
_Historical Essays_, 31, are decidedly of the same opinion.
BUCKSTAFF, in _Annals of Am. Acad._, IV, 234, doubts
whether the German woman was ever looked upon as a chattel; and
OPET, "Die erbrechtliche Stellung der Weiber in der Zeit
des Volksrechts," in GIERKE'S _Untersuchungen_, XXV,
takes a very favorable view of woman's right of inheritance.
On the other hand, the betrothal is regarded as originally an
actual sale of the bride by GLASSON, _Hist. du droit
et des inst. de l'Angleterre_, I, 116, 117; GROSSE,
_Die Formen der Familie_, 223, 234; SIEGEL,
_Rechtsgeschichte_, 450-52; WEINHOLD, _Deutsche_
_Frauen_, I, 320; HEUSLER, _Institutionen_, II, 279 ff.;
LOENING, _Geschichte des deutschen Kirchenrechts_, II,
578; HOFMANN, _Ueber den Verlobungs- und Trauring_, 849,
850; LEBER, _Des coutumes_, 22 ff.; LAMPRECHT,
_Deutsche Geschichte_, I, 104, 105; SEHLING,
_Unterscheidung der Verlöbnisse_, 32, 33; GRIMM,
_Rechtsalterthümer_, 420 ff.; DAVOUD-OGHLOU,
_Législation des anciens Germains_, I, xl-xli; HELLWALD,
_Die mensch. Familie_ (apparently), 315-18; DARGUN,
_Mutterrecht und Raubehe_, 24 ff.; and especially
BRUNNER, _Rechtsgeschichte_, I, 74 ff. LEHMANN,
_Verlobung und Hochzeit_, 7 ff., 78, 79, finds fainter traces of
the sale-marriage among the Scandinavians than among the North
Germans. _Kohler_, "Die Ehe mit und ohne Mundium," _ZVR._, VI,
321 ff., holds that marriage without _mund_ on the part of the
husband is the marriage of mother-right as opposed to the later
_Paternitätsrecht_. See also KOHLER, in _ZVR._, III,
354; and _Waitz_, "Ueber die Bedeutung des Mundium im deutschen
Recht," _Sitzungsberichte der preuss. Akad._, 1886, 375 ff., for
a discussion of the meaning and content of _mund_. In general,
_cf._ KÖNIGSWARTER, _Hist. de l'organisation de la
famille_, 121 ff.; LABOULAYE, _Condition des femmes_,
112 ff.; STRACK, _Aus dem deutschen Familienleben_, I,
17 ff.; BEAUCHET, _Mariage dans le droit islandais_, 3
ff., 12 ff.
[844] HABICHT, _Altdeutsche Verlobung_, 9, note, 68,
insists that there is no practical difference between the sale of
the _Vormundschaft_, or protection, and the sale of the bride.
See FICKER, _Untersuchungen zur Rechtsgeschichte_, III,
393-419, who rejects the view that marriage has the same origin
and character among all the German peoples.
[845] ÆTHELB., 77: SCHMID, _Gesetze_, 8, 9.
LIEBERMANN, 7, translates: "Wenn jemand eine Jungfrau
zur Ehe kauft." Another provision of this code reads: "If a
free man lies with a free man's wife, let him buy her with her
wergeld, and procure with his own property another woman and
bring her home to him (the wronged husband)": ÆTHELRED,
31: SCHMID, 4, 5. _Cf._ LIEBERMANN'S ed., 5.
See ROEDER, _Die Familie bei den Angelsachsen_, 15 ff.,
24 ff.
[846] BRUNNER, _Rechtsgeschichte_, I, 74: "Wife-purchase
is yet known to the earlier East Frisian sources, and it was
still practiced in Denmark in the fifteenth century. "Und wie im
Mittelalter die Redensart eine Frau zu kaufen vielfach verbreitet
war, so bezeichnet in Holland der Volksmund noch jetzt die Braut
als 'verkocht' (verkauft)."
Whatever its essential character, there is abundant evidence of the
widespread existence of sale-marriage among the Teutonic nations.
Tacitus, who was struck by a custom so much at variance with the
Roman practice of his day, has given in the eighteenth chapter of
the _Germania_ the earliest description of a _beweddung_. "The
wife," he says, "does not offer a _dos_ to the husband, but the
husband offers one to the wife. Parents and relatives are present;
they approve the gifts, not seeking those trifles which are pleasing
to women, nor those with which a newly wedded bride is adorned; but
oxen, a bridled horse, and a shield with sword and spear. For these
gifts the wife is obtained, and she, in turn, brings something of
arms to her husband. These they regard as the highest bond, the most
mysterious sacra, the gods of marriage."[847] In this passage the
essential character of the _weotuma_, that is the gifts, is clearly
recognized; and though the historian represents it as being paid to
the bride, it is probable that in this particular he is mistaken,
and that, in accordance with the early practice, it was really paid
to the guardian,[848] for it is very unlikely that the stage of the
dower had already been reached.
[847] "Dotem non uxor marito, sed uxori maritus offert. Intersunt
parentes ac propinqui; probant munera, non ad delicias muliebres
quaesita, nec quibus nova nupta comatur, sed boves et frenatum
equum et scutum cum framea gladioque. In haec munera uxor
accipitur, atque invicem ipsa armorum aliquid viro affert.
Hoc maximum vinculum, haec arcana sacra, hos conjugales deos
arbitrantur."--TACITUS, _Germania_, c. 18.
[848] SCHROEDER, _Güterrecht_, I, 24 ff., 82, 83,
has shown that this is probable; and such is the view of
GRIMM, _Rechtsalt._, 423, 424. ZOEPFL,
_Deutsche Rechtsgeschichte_, III, 4, believes Tacitus,
"vermengt unverkennbar die verschiedenen Gaben, welche nach den
Volksrechten des folgenden Zeitraumes unter der Bezeichnung
als _pretium_ und Morgengabe hervortreten, wovon die eine dem
Vater oder Vormund der Frau, und die andere dieser selbst
gebührte;" and the arms given by the bride to the bridegroom
he identifies with the later well-known ceremony of "girding"
the youth on reaching majority. _Cf._ on this passage also
HEUSLER, _Institutionen_, II, 277; THUDICUM,
_Der altdeutsche Staat_, 148, 186; LABOULAYE, _Cond.
des femmes_, 113; SIEGEL, _Deutsche Rechtsgeschichte_,
452; GIDE, _Étude sur la cond. privée de la femme_, 205
ff.; FICKER, _Untersuchungen zur Rechtsgeschichte_,
III, 416-19, 394, believes Tacitus here describes correctly the
_Vidumsehe_, the marriage in which the _Vidum_ or price came to
the woman herself.
In the earliest English codes the contract is found in its rudest
form. Besides _weotuma_, various other terms appear for the
bride-money. Such are _gyft_, _feoh_, _pretium_, and _pecunia pro
puella data_.[849] According to a provision of Æthelberht, already
referred to, "If a man buy a maiden with cattle (_ceapi_) let the
bargain stand, if it be without guile; but if there be guile, let
him bring her home again, and let his property be restored to
him."[850] Another law of the same king declares: "If a man carry
off a maiden by force, let him pay fifty shillings to the owner, and
afterwards buy of the owner the latter's consent [to the marriage].
If she be betrothed to another man in money (sceat), let him make
bot [to this bridegroom] with twenty shillings."[851]
[849] SCHROEDER, _Güterrecht_, I, 50; _idem_,
_Rechtsgeschichte_, 292; SOHM, _Trauung und Verlobung_,
15; LABOULAYE, _op. cit._, 113.
[850] ÆTHELB., 77; THORPE, _Ancient
Laws_, 22, 23, and n. 3; SCHMID, _Gesetze_, 8,
9. LIEBERMANN, 7, renders the first part of this
passage: "Wenn jemand eine Jungfrau [zur Ehe] kauft,
sei sie durch [Braut] Kaufgeld [giltig] erkauft, falls das
[Rechtsgeschäft] untrügerisch ist." _Cf. Poeniten. Theod._,
XVI, 29; THORPE, II, 11, or _Poeniten. Theod._, II, xii,
§ 34, in WASSERSCHLEBEN'S _Bussordnungen_, 216; with
_Confess. Ecgb._, § 20: THORPE, II, 147; or the same
in WASSERSCHLEBEN, 309. See also SCHROEDER,
_Güterrecht_, I, 51 n. 9.
[851] ÆTHELB., 82, 83; THORPE, I, 24, 25;
LIEBERMANN, 8; _cf._ SCHROEDER, _op. cit._, 51
n. 10.
Still, it will not be wise to accept too literally the apparent
statements of the early codes relative to the marriage relation,
for they are often brief and obscure, devoid of qualifying terms,
and must be construed in the light of other facts. Thus Opet's
researches seem to show clearly that in the historical period women
were not so much neglected in the ancient law of inheritance as has
usually been supposed.[852]
[852] OPET, _Die erbrechtliche Stellung der Weiber
in der Zeit der Volksrechte_, 82 ff. This monograph may
be compared with that of AMIRA, _Erbenfolge und
Verwandtschaftsgliederung nach dem altniederdeutschen Rechte_,
83, 84. ROEDER, _Die Familie bei den Angelsachsen_,
15 ff., takes a conservative position. In general on old
English marriage see PHILLIPS, _Geschichte des
angelsächs. Rechts_, 129-33; DAVOUD-OGHLOU, II, 355-60;
YOUNG, in _Essays_, 163 ff.; FRIEDBERG,
_Eheschliessung_, 33 ff.; LINGARD, _Anglo-Saxon Church_
(2d ed.), I, 6 ff.; TRAILL, _Social England_, I, 215,
216; GIDE, _Étude sur la cond. privée de la femme_,
237, 196 ff.; POLLOCK AND MAITLAND, _Hist. of Eng.
Law_, II, 362 ff.; BUCKSTAFF, in _Annals_, IV, 233;
LUDLOW, in _Dict. of Christ. Ant._, I, 203, 143. There
is also a good discussion by GLASSON, _Hist. du droit
et des inst. de l'Angleterre_, I, 104-33; an account of the
Anglo-Saxon bride in GRUPEN, _De uxore theotisca_,
221-55; interesting details in THRUPP, _The Anglo-Saxon
Home_, 19-76; WRIGHT, _Hist. of Doms. Manners and
Sentiments_, 53-56; TURNER, _Hist. of Manners and Landed
Property of Anglo-Saxons_, 108, 113-15; and JEAFFRESON,
_Brides and Bridals_, I, 32-45, who gives an interesting
discussion regarding the Anglo-Saxon woman, as a chattel subject
to sale, even in the historical period. "To these ancient
arrangements for the transference of women from their fathers
to their matrimonial suitors, and for protecting the property
in them against nefarious aggressors," he declares, "must be
referred the barbarous spirit in which the law still persists in
regarding a certain class of atrocious outrages on morality as
mere infringements of private right. We reflect with astonishment
on the conduct of our distant progenitors, who legalized traffic
in womankind, but we persevere, so far as law is concerned, in
dealing with the seducer as though his offence were nothing
graver than a violation of personal privileges, for which a
payment of money to one of the injured persons is the appropriate
penalty" (I, 42, 43).
Similar evidences of the sale-marriage are afforded by the South
German folk-laws.[853] Among the Salian Franks the bride-price
appears in form of the _arrha_, to be described presently, through
the payment to the guardian by the bridegroom of the "golden
shilling and the silver penny." In this form the _arrha_ was paid
by the representatives of Chlodwig, the Frankish king, at his
betrothal with Chlotilde, sister and ward of Gundobad, king of
the Burgundians.[854] Faint traces of wife-purchase survive in
the Bavarian[855] and Alamannian codes;[856] while in the _lex
saxonum_ marriage is simply described as _uxorem emere_, or "buying
a wife."[857] The sale-contract retains much of its primitive
character, in spite of ecclesiastical influences, in the West
Gothic, Burgundian, and Lombard codes. Among the West Goths the
betrothal was almost as binding as a marriage. The father or other
legal protector might contract his daughter or ward against her
will. If she disregards such a contract and marries another man,
both bride and bridegroom are "handed over to the power" of him
to whom she was betrothed by her father or guardian, "and any
relatives abetting the marriage shall pay a penalty of gold."[858]
The provisions of the other two codes last mentioned are conceived
in a similar spirit.[859] Moreover, even in the customs of the
Scandinavian North forms and phrases have survived which seem to
point unmistakably to the former existence of wife-purchase.[860]
[853] An exhaustive study of these laws is, of course, not
attempted. They are thoroughly exploited in the works of Sohm,
Brunner, Schroeder, Friedberg, Dargun, and others.
[854] "Legati offerentes solidum et denarium, ut mos erat
Francorum, eam partibus Chlodovei sponsant: placitum
ad praesens petentes, ut ipsam ad conjugium traderet
Chlodoveo."--FREDEGARIUS, _Greg. Turon. hist. epit._, c.
xviii: in GUADET AND TARANNE'S ed., IV, 172, 173; or in
GIESEBRECHT'S trans., II, 273-75. Compare SOHM,
_Eheschliessung_, 32 n. 21; SCHROEDER, _Güterrecht_, I,
55 n. 3, and authorities cited; MERIL, _Des formes_,
30; LEBER, _Des Coutumes_, 24; WEINHOLD,
_Deutsche Frauen_, I, 323; FRIEDBERG, _Eheschliessung_,
19 n. 7. The price of a maid is not fixed in the _lex salica_;
but in c. 44 the price of a widow is given (BEHREND,
58); and elsewhere the woman's _mund_ is fixed at 62-1/2 solidi.
FICKER, _Untersuchungen zur Rechtsgeschichte_, III, 400,
401, regards the _arrha_, not as a survival of the bride-price,
but as a symbol of mutual troth.
[855] SOHM, _op. cit._, 29 n. 15; FRIEDBERG,
_Eheschliessung_, 19. _Cf._, however, WEINHOLD, _op.
cit._, I, 323, who says that wife-purchase has disappeared
from the Bavarian and Alamannian laws. See PERTZ AND
BRUNNER'S ed., _Mon. germ. hist.: legum_, III, 183-496
(_Leges baiuwariorum_), 1-182 (_Leges alamannorum_).
[856] _Puella empta_ appears in the _Pactus alamannorum_,
3, 29. _Cf._ SCHROEDER, _Güterrecht_, I, 17 ff.;
WEINHOLD, _op. cit._, I, 323; FRIEDBERG, _op.
cit._, 19.
[857] "Lito regis liceat uxorem emere, ubicunqui voluerit. Sed
non liceat ullam foeminam vendere."--_Lex saxonum_, tit. 18:
WALTER, _Corpus juris germ._, I, 389. Tit. 6 fixes the
price at 300 solidi: WALTER, I, 386.
[858] _Lex wisigoth._, lib. iii, tit. i, 2: WALTER,
_Corpus juris germ._, I, 466; LUDLOW, in _Dict. Christ.
Ant._, I, 203. The bride-money is here called _pretium_,
elsewhere the betrothal is styled _mercatio_: BRUNNER,
_Rechtsgeschichte_, I, 74 n. 23. The whole of liber iii,
WALTER, I, 465-91, relates to marriage and allied
matters.
[859] _Lex burgundionum_, tits. 12, 34, 51, 52, 66, 69:
WALTER, I, 311, 320, 329, 330, 335, 336; for the
Lombards, _Edictum Rotharis_, c. 178 ff.: WALTER,
I, 710 ff., especially c. 182, which contains the form of
betrothal. Compare this with the later ritual given by
CANCIANI, II, 476, summarized by WEINHOLD, I,
341; LUDLOW, in _Dict. Christ. Ant._, I, 203. See also
_Liutprandi leges_, lib. ii, c. 7 ff., 88, 93, 99, 102, 106, 112,
115, 119, etc.: WALTER, I, 759 ff.
[860] LEHMANN, _Verlobung und Hochzeit_, 1 ff., 78, 79;
WEINHOLD, _Altdeutsches Leben_, 240. SCHROEDER,
_Rechtsgeschichte_, 287, denies that there are any sure traces of
wife-purchase in northern law.
During the period of the law-books, both in England and on the
continent, the amount of the bride-money was generally fixed by
custom or by statute. The price established seems usually to have
equaled the value of the _mund_ or that of the _wergeld_, which
depended upon the rank of the woman.[861] While the law thus fixed
the amount of the bride-money, doubtless to facilitate an easy
settlement of those cases in which marriages were illegally formed
without payment of the _weotuma_, it by no means follows, as
sometimes assumed, that its value was not ordinarily arranged by
private agreement, as in the early period.
[861] SCHROEDER, _op. cit._, 292; BRUNNER,
_Rechtsgeschichte_, 75; WEINHOLD, _Deutsche Frauen_,
I, 321 ff.; SOHM, _Eheschliessung_, 23, 24, who thinks
the fixing of a legal price of great importance, the purchase
of a maid being thus distinguished from that of a thing. The
bride-money is thus the nominal price of an _unschätzbares_
object; it admits no bargaining; but the explanation of
HABICHT, _Altdeutsche Verlobung_, 12, 13, given in
the text, is simpler and more probable. SCHROEDER,
_Güterrecht_, I, 11 ff., in connection with each code, gives
a mass of details relative to the violation of the _mund_ by
illegal marriage and the amount of the composition in each
case. _Cf._ LABOULAYE, _Cond. des femmes_, 113;
YOUNG, in _Essays_, 166; and ÆTHELBERHT, 31;
THORPE, I, 11, where the _wergeld_ is mentioned.
At a very early day it became customary--instead of the _weotuma_ to
pay to the guardian a small sum at the betrothal, called in general
_arrha_[862]--the _Hand-geld_ of the German writers--accompanied by
promises and sureties for the payment of the price of the bride at
the _gifta_, or nuptials. Strictly speaking, the _arrha_ was neither
a part payment nor even a symbolical payment of the _weotuma_; it
was an act by which the real obligation implied by the contract of
sale was engendered.[863] The practice of paying the _arrha_ instead
of the bride-money at the betrothal led to a change in the character
of the marriage contract. "In the time of the folk-laws--from the
sixth to the ninth century--we see among all the German tribes a
change take place: the witthum, that is the purchase price, is
no longer paid to the guardian, that is the seller, but to the
bride herself; so that the right of the guardian was practically
limited to the receipt of the handgeld, that is to a merely formal
fulfilment."[864] Thus, since the property of the wife was subject
to the husband's control during his lifetime, the _weotuma_ was
really transformed into a provision for the widow, payable only
after death from the husband's goods.[865] The _beweddung_ was still
a "real contract," but not a "contract of sale."[866]
[862] Latin _arrha_, _arra_, or _arrhabo_; Greek ἀρῥᾰβων;
Lombard _launichild_, _launegild_, perhaps the same as the
German _Lohngeld_. It means "earnest money," and was used
by the Romans in connection with bargains; also in general
with other real contracts. _Cf._ SMITH, _Dict.
Greek and Roman Ant._, I, 193; BINGHAM, _Orig.
Ecc._, VII, 311; SCHROEDER, _Rechtsgeschichte_, 290,
295; _idem_, _Güterrecht_, I, 39, 55 ff.; HEUSLER,
_Institutionen_, I, 80 ff.; SOHM, _Eheschliessung_, 28;
ZOEPFL, _Deutsche Rechtsgeschichte_, III, 8 ff., 12-14;
DAVOUD-OGHLOU, II, 59 n. 3; LUDLOW, in _Dict.
Christ. Ant._, I, 142-44. "Subarrare" is used in the ritual of
the Greek church for disposing in marriage: see the ritual in
BURN, _Parish Registers_, 141, 142.
[863] SOHM, _Eheschliessung_, 28-32, maintains
this view against SCHROEDER, _Güterrecht_, I, 39,
40, 55, and others, who regard the _arrha_ as a symbolical
payment--a _Scheinpreis_ or _symbolischer Muntschatz_. _Cf._
FRIEDBERG, _Eheschliessung_, 19; "Zur Gesch. der
Eheschliessung," _ZKR._, I, 364 ff.
[864] SOHM, _op. cit._, 33.
[865] _Ibid._
[866] _Ibid._, 34. But FRIEDBERG, _Verlobung und
Trauung_, 8-10, insists on the long survival of the sale-contract.
In this second stage, it has been thought, was the form of betrothal
among the old English in the days of Ine and Ælfred; but the
evidence is not entirely conclusive. Indeed, a provision of Ine,
relied upon by Schroeder to prove that the price had not been
paid at the betrothal, appears to show the opposite, according
to the reading of Liebermann. "If a man buy a woman (as a wife)
and the gifta or tradition take not place, let him (the woman's
guardian) give the money back (to the bridegroom), pay as much
more as penalty, and recompense the betrothal sureties (byrgean)
in as much as the breach of their pledge is worth."[867] Even with
this reading it is just possible that the money restored was the
_arrha_; and that betrothal sureties were required mainly to secure
damage in case the bride were not actually transferred. A law of
Ælfred likewise shows the practice of taking surety; but in this
case also it seems uncertain whether the pledges were given for
the payment of the bride-money; for damage on failure to surrender
the bride as a maid; or for both bride-price and damage combined,
though the last hypothesis seems the most probable. "If a betrothed
woman commit adultery, if she be of ceorlish degree, let a penalty
of sixty shillings be paid to the betrothal sureties, and let it
be in live-stock, things of value; and in it let no (unfree) man
be given." If the woman be worth six hundred or twelve hundred
shillings _wergeld_, the penalty is fixed at one hundred or one
hundred and twenty shillings respectively.[868] But another law of
Ælfred seems to reveal more clearly the second or transitional phase
in the history of the wedding contract; for the bride-price is paid
to the woman. It provides that in case a man sell his daughter into
servitude, and the purchaser "allow his son to cohabit with her, let
him (the son) marry her: and let him see that she have raiment, and
that which is the worth of her maidhood, that is the weotuma; let
him give her that."[869]
[867] INE, 31: LIEBERMANN, _Gesetze_, 103. The
phrase "and sio (seo) gyft (gift) forth ne cume" was rendered
by SCHROEDER, _Güterrecht_, I, 51 n. 8, followed by
SCHMID, _Gesetze_, 34, 35, note, "if the purchase price
be not paid"--a manifest error. _Cf._ THORPE, _Ancient
Laws_, I, 123.
[868] ÆLFRED, 18: LIEBERMANN, _Gesetze_, 58-61.
_Cf._ THORPE, _op. cit._, I,73; SCHMID, _op.
cit._, 81, 83; YOUNG, in _Essays_, 170.
[869] ÆLFRED, _Ecc. Laws_, 12: THORPE, _op.
cit._, I, 47. But ÆLFRED, _op. cit._, 29, seems to show
that the older practice of payment to the father also existed:
THORPE, I, 52.
The transition from this last-named form of contract to a third and
still more liberal one was easy and natural. Already in the tenth
century the _beweddung_ had become a merely "formal contract,"
the _wed_, _wette_, _Treugelöbniss_, _wadium_, or _fides facta_
of the early laws.[870] In this case there was not even one-sided
fulfilment through payment of the _arrha_, which in the form of
wine-money was merely _promised_ to the guardian;[871] but instead
the agreement or convention was accompanied by sureties to pay
the _weotuma_ to the bride, and by a solemn act which created the
obligation, and was therefore essential to the contract. Originally
this solemn act consisted in giving and taking the straw (_festuca_)
on the part of the bride and bridegroom. Instead of the straw,
other objects were sometimes employed, such as a piece of cloth,
an arrow, a number of gloves, and the like.[872] The oath or vow
was also substituted for the solemn act; and, particularly in the
later Middle Ages, the most popular symbol by which the contract
was closed was a "weakened" form of the oath, the _Handschlag_,
or hand-fasting, so famous in connection with the history of
English "secret" or "irregular" marriages.[873] It should be
noted that after the betrothal assumes the form of the _wed_, the
_weotuma_ ceases to be of real importance and becomes a gift to
the bride of little value; whereas now the object of real concern
in the convention is the _morgengifu_, or _morning-gift_.[874]
This was originally a small voluntary gift to the bride on the
morning following the nuptials; but as the _weotuma_ decreased the
morning-gift increased in importance. It became customary to grant
them both in the same instrument at the betrothal; so, at length,
they were merged and became a regular legal provision for the widow.
Such was the Lombard _quarta_[875] and the Frankish _tertia_;[876]
the Norman _douaire_, and the _dos ad ostium ecclesiae_ of
Glanville, the predecessors of the modern English dower.[877]
[870] The German _wette_ and Anglo-Saxon _wed_ are from the same
root as _beweddung_.
[871] SOHM, _Eheschliessung_, 30, 31, 317, note.
[872] _Ibid._, 34, 35; SCHROEDER, _Rechtsgeschichte_,
293, 294.
[873] On the oath and _Handschlag_, see SOHM,
_op. cit._, 47-50; on hand-fasting, FRIEDBERG,
_Eheschliessung_, 39 ff.
[874] On the morning-gift and dower see HEUSLER,
_Institutionen_, II, 374-79; THRUPP, _The Anglo-Saxon
Home_, 60; GUNDLING, _De emptione uxorum, dote et
morgengaba_ (Helmstedt, 1821); GENGLER, _Die Morgengaba_
(Bamberg, 1843); ECKHARDT, "Das Witthum," _Zeitschrift
für deutsches Recht_, X, 437 ff.; GRUPEN, _De uxore
theotisca_, 49-140; BRUNNER, "Die frankisch-romanische
Dos," _Berliner Sitzungsber._, XXIV, 545 ff.; SIEGEL,
_Deutsche Rechtsgeschichte_, 455-57; FRIEDBERG, "Zur
Geschichte," _ZKR._, I, 365, 366; SPIRGATIS, _Verlobung
und Vermählung_, 14; SCHROEDER, _Güterrecht_, I, 84-94
ZOEPFL, _Deutsche Rechtsgeschichte_, III, 19-21.
[875] SCHROEDER, _Güterrecht_, I, 84-89.
[876] _Ibid._, 89-94.
[877] GLANVILLE, Lib. VI, cap. 1; PHILLIPS,
_Englische Reichs- und Rechtsgeschichte_, II, 381. Compare
SCHROEDER, _op. cit._, I, 89; II, 24-67, _passim_;
YOUNG, in _Essays_, 174; LABOULAYE, _Cond. des
femmes_, 117 ff., 124 ff.; GRIMM, _Rechtsalt._, 441;
and especially the monograph of ASHWORTH, _Das Witthum
(Dower) im eng. Recht_, 9 ff., 18 ff.
This third phase of the _beweddung_ may be clearly discerned in
the English laws of the pre-Norman period, and seems to have been
the prevailing form after the beginning of the tenth century. The
following formulary, dating perhaps from the reign of Eadmund or
Æthelstan, besides its peculiar interest as being the earliest
English betrothal ritual extant, is an excellent example of the
formal contract, though some of its provisions are not clear:
"1. If a man desire to betroth a maiden or a widow, and it so
be agreeable to her and her friends, then it is right that the
bridegroom, according to the law of God, and according to the
customs of the world, first promise and give a 'wed' to those who
are her 'foresprecas,' that he desire her in such wise that he will
keep her, according to God's law, as a husband shall his wife: and
let his friends guarantee that.
"2. After that, it is to be known to whom the 'foster-laen'[878]
belongs: let the bridegroom again give a 'wed' for this: and let his
friends guarantee it.
"3. Then, after that, let the bridegroom declare what he will grant
her, in case she choose his will, and what he will grant her, if she
live longer than he.
"4. If it be so agreed, then it is right that she be entitled to
half the property, and to all, if they have children in common,
except she again choose a husband.[879]
"5. Let him confirm all that which he has promised with a 'wed;' and
let his friends guarantee that.
"6. If they then are agreed in everything, then let the kinsmen take
it in hand, and betroth their kinswoman to wife, and to a righteous
life, to him who desired her, and let him take possession of the
'bohr'[880] who has control of the 'wed.'
"7. But if a man desire to lead her out of the land, into another
thane's land, then it will be advisable for her that her friends
have an agreement that no wrong shall be done to her; and if she
commit a fault, that they may be nearest in the 'bot,' if she have
not whereof she can make 'bot.'"[881]
[878] The meaning of "foster-laen" is uncertain. SCHMID
wrongly identifies it with the _gyft_ of INE, 31, and
thinks it is the purchase price of the bride, that is, the
_weotuma_: _Gesetze_, 34, 35, note. THORPE regards it
also as the purchase price paid to the family of the bride:
_Anc. Laws_, I, 254, note. SCHROEDER, _Güterrecht_, I,
51 n. 13, believes it to be a provision for maintenance of the
children. But SOHM renders it _Weinkauf_, "drink-money,"
and this is probably right. It is a form or application of the
_arrha_, which is not now paid down, but, the contract being
formal, is promised to the guardian. The _arrha_ had customarily
been spent in treating the guests: _Eheschliessung_, 30, 31, 317,
note.
[879] "The language of this law seems to indicate that the
_legal_ endowment of the woman was one-third of the chattels, as
in INE, c. 57. By contract, however, before marriage,
the husband might increase this to one-half."--THORPE,
I, 255, note.
[880] The _bohr_ was the surety for fulfilment of the pledges.
[881] THORPE, _Anc. Laws_, I, 255, 257, who classes this
formulary with the laws of Eadmund. SCHMID leaves the
date undetermined, but thinks it may with as much probability be
ascribed to Eadmund or Æthelstan as any other king: _Gesetze_,
lxv, find _Anhang_, VI, 391, 393. _Cf._ POLLOCK AND
MAITLAND, _Hist. Eng. Law_, II, 367; and DIECKHOFF,
_Kirchliche Trauung_, 68 ff., who gives the text of this ritual.
The form of betrothal here described is that of the _wed_. The
_foster-laen_, or wine-money, a substitute for the _arrha_, is not
paid down, but it is merely promised to the guardian; while the
morning-gift--"in case she choose his will"--and the _weotuma_--"if
she live longer than he"--are the important elements, and these
belong to the bride.[882]
[882] SOHM, _Eheschliessung_, 155, 100 n. 60, 317.
SCHROEDER, _Güterrecht_, I, 53, 54, 96, reverses the
meaning of these passages; and holds that the phrase "in case she
choose his will" refers to the _weotuma_; and the phrase "if she
live longer than he," to the morning-gift. But see POLLOCK
AND MAITLAND, II, 363, who render the last clause by
"dower," and the first by "morning-gift."
Such was the form of _beweddung_ generally prevailing among the
Germanic nations about the time of the Norman Conquest. It had been
reached, as we have seen, only through several successive phases of
development, not sharply defined, but overlapping each other. In
the first stage, falling mainly or wholly within the prehistoric
era, the betrothal is a real contract, according to which there is
two-sided fulfilment. The payment of the price and the delivery
of the bride go hand in hand.[883] In the second stage, existing
at any rate from the time of Tacitus onward, the transaction is
still in form a real contract of sale, but there is only one-sided
fulfilment. The purchase price is paid to the guardian, but the
tradition of the bride is postponed. Next a solemn act through
payment of a nominal sum, or _arrha_, is deemed sufficient, the
payment of the actual price, or _weotuma_, being reserved for the
nuptials, when, often, it is paid, not to the guardian, but to the
bride, disclosing to us the genesis of the dower. The _beweddung_
is still a real contract, but not a contract of sale. Finally,
even one-sided fulfilment is no longer required. Nothing is paid
and nothing is transferred at the betrothal, which now consists of
promises and sureties, accompanied by a solemn act which engendered
the obligation. The real contract of sale has been transformed into
a merely formal contract, which provides for future fulfilment on
the part of both guardian and bridegroom.
Let us now turn to the second act in marriage, the _gifta_, or
actual "giving" of the bride to the husband. Here there is no lack
of ceremony and solemn phrases. Legally the _gifta_ is a distinct
transaction subsequent to the betrothal in the order of time.[884]
Very generally in German lands late autumn or early winter was the
favorite season for the celebration of marriages. So also, during
the waxing moon, a Tuesday or a Thursday was preferred for the
wedding day.[885] As among the Greeks, Romans, and Hindus,[886]
the nuptial ceremony appears to have consisted of three parts:
the solemn tradition, the joyous home-bringing of the bride, and
the festal initiation into the wedded life in the bridegroom's
house.[887] Of these the _gifta_, or tradition, is most important,
and it takes place in the home of the bride.[888] The father or
guardian by blood takes the lead in the proceedings, and is thus
the prototype of the modern priest or magistrate. The first act is
the solemn surrender of the bride together with the symbols of the
husband's power and protection: the sword, the hat, and mantle, or
other objects of similar significance. Then, on reception of the
bride, the bridegroom pays the _weotuma_, or delivers the charter
providing for the morning-gift or other allowance for the widow;
and, at the same time, makes symbolical assertion of the power which
he thus acquires over the wife: for example, by treading upon her
foot--a custom, says Sohm, which at later time finds a more refined
expression in the delivery of a shoe or slipper.[889] From this
arose the belief, still existing in some parts of Germany, that the
bride will rule the family, if before the altar, after the blessing
is pronounced by the priest, she places her foot upon that of the
bridegroom. "Who carries the slipper rules."[890]
[883] BRUNNER, _Rechtsgeschichte_, I, 74.
[884] This is the view of SOHM, _Trauung und
Verlobung_, 38-57; _Eheschliessung_, 89, 90, 100, 59 ff.; as
opposed to FRIEDBERG, _Verlobung and Trauung_, 21
ff.; _Eheschliessung_, 21, 22, who thinks that the _Trauung_
and _Verlobung_ usually coincided. _Cf._ SCHROEDER,
_Rechtsgeschichte_, 293; and DIECKHOFF, _Kirchliche
Trauung_, 67, who agrees with Sohm.
[885] For very interesting details relating to the German
_Trauung_ see WEINHOLD, _Deutsche Frauen_, II, 362-413.
The old English betrothal ceremonies are best described by
ROEDER, _Die Familie bei den Angelsachsen_, 15 ff.
[886] HAAS, in WEBER'S _Indische Studien_,
V, 327-29, 391-99. LEIST, _Alt-arisches Jus Gentium_,
133-71, gives a full discussion. _Cf._ above, chap. iv, pp. 171
ff.
[887] For the North Germans, LEHMANN, _Verlobung
und Hochzeit_, 80-88; WEINHOLD, _Altnordisches
Leben_, 243-52; and in general, _idem_, _Deutsche Frauen_,
368 ff., 406 ff., 399. The third part of the ceremony is the
_Bettbeschreitung_, or bedding of the newly married pair.
Normally this takes place in the bridegroom's house, as
according to northern custom: LEHMANN, 85-87; but
sometimes it appears to have taken place in the bride's home
before the home-bringing: WEINHOLD, I, 399 ff. _Cf._
FRIEDBERG, _Eheschliessung_, 22, 45, 64.
[888] The nuptials of widows, according to Salic law, were an
exception. These were, nominally, solemnized in the _mallum_,
or open court; but in practice this requirement may not always
have been observed. The exception seems to be an outgrowth of
the original restriction on second marriage: TACITUS,
_Germania_, c. 19; _Lex salica_, 44, _de reipus_:
BEHREND, 57, 58. _Cf._ SOHM, _Eheschliessung_,
62-64 nn. 16, 17, 18; SCHROEDER, _Güterrecht_, I,
56. FRIEDBERG, _op. cit._, 21; "Zur Geschichte,"
_ZKR._, I, 366, led astray by the statement of GRIMM,
_Rechtsalt._, 433, that _Gemahl_, "husband," is derived from
_mallum_, thinks the nuptials were usually celebrated in open
court. On the derivation see SOHM, _op. cit._, 62. In
general on the marriage of widows see also HABICHT,
_Altd. Verlobung_, 16-23; WEINHOLD, _Deutsche Frauen_,
II, 40 ff.; SCHROEDER, _Rechtsgeschichte_, 293, 296;
RIVE, _Vormundschaft_, I, 241; ZOEPFL,
_Deutsche Rechtsgeschichte_, III, 3, 10, 11; WEINHOLD,
"Reipus und Achasius," in HAUPT'S _Zeitschrift_, VII,
539 ff.; MÜLLENHOFF, "Glossary," in WAITZ, _Das
alte Recht_.
[889] SOHM, _op. cit._, 59-74.
[890] GRIMM, _op. cit._, 142, 155, 156;
WEINHOLD, _Deutsche Frauen_, I, 372. On the _gifta_
_cf._ SCHMID, _Gesetze_, 630; FRIEDBERG,
_Eheschliessung_, 21; WEINHOLD, _Altnordisches Leben_,
243 ff.
A point which requires special notice is the relative legal
importance of the _beweddung_ and the _gifta_. "Whether the marriage
begins with the betrothal, or with the delivery of the bride to
the bridegroom, or with their physical union, is one of the many
doubtful questions."[891] According to the view of Sohm, which is
defended with his usual acuteness, the betrothal of the early laws
is not, as commonly held, a _pactum de contrahendo_, a contract
for the future giving in marriage,[892] but the essential part of
the marriage itself. It is the only declaration of will, the only
ground of legitimate marriage, which is not created, but merely
consummated at the _gifta_.[893] Those who are bound by contract
are in respect to third parties practically husband and wife.[894]
The ground of the husband's title is the betrothal and not the
nuptials. Either party can bring action in the courts for breach
of the contract. The bridegroom cannot compel the delivery of the
bride, but he may sue for the recovery of the _weotuma_ and an
additional fine.[895] On the other hand, a breach of the contract
by the bridegroom is punished by forfeiture of the _weotuma_, and
possibly also by a fine.[896] The betrothal created the negative
effects of marriage--the obligation of connubial fidelity. The
bridegroom could maintain his title as a husband against all third
parties. The _gifta_ conveyed the positive rights, such as the power
of the husband over the person and property of the wife. It is the
completion of that which has gained its legal significance from the
betrothal.[897]
[891] POLLOCK AND MAITLAND, _Hist. of Eng._ Law, II,
363. Thus FRIEDBERG, _op. cit._, 21, 22, regards
"Verlobung, Trauung, und Beilager" as acts each of which is an
element in the "joining in marriage"--all three "eheschliessende
Vorgänge." _Cf._ SOHM, _Eheschliessung_, 88,
89; ZOEPFL, _Deutsche Rechtsgeschichte_, III,
5; SIEGEL, _Deutsche Rechtsgeschichte_, 455-57;
KLEIN, Das _Eheverlöbniss_, 130 ff., who reviews
the whole subject, citing authorities; and HANAUER,
_Coutumes matrimoniales_, 255 ff.
[892] The views as to the legal "content" of the betrothal are
summarized by HABICHT, _Altdeutsche Verlobung_, 30.
RIVE, _Vormundschaft_, I, 243, holds that betrothal was
not essential to a legal marriage; while PARDESSUS, _Loi
salique_ (Paris, 1843), regards it as legally requisite for a
marriage, which, however, actually began only with the tradition
of the bride.
[893] SOHM, _Trauung und Verlobung_, 139-47, _passim_;
_idem_, _Eheschliessung_, 75-106.
[894] This is illustrated by the survival of names originally
connected with the betrothal, but now with marriage itself:
the English _wed_, _wedding_, _wedded wife_, etc.; the German
_Gemahl_ and _Gemählin_; the French _époux_ and _épouse_, etc.
SOHM, _Eheschliessung_, 78 n. 6, 56 nn. 74 and 75;
_idem_, _Trauung und Verlobung_, 82, 83. But HABICHT,
_Altdeutsche Verlobung_, 65-67, believes this argument not
conclusive.
[895] _Poen. Theod._, XVI: THORPE, II, 11: "reddatur
ei pecunia quam pro ipsa dedit, et tertia pars addatur;" also
in HADDAN AND STUBBS, _Councils_, III, 201; and
WASSERSCHLEBEN, _Bussordnungen_, 216. The reading in
_Conf. Ecgb._ is, "reddatur ei pecunia, quam pro illa dederat,
et praeteria tertia pars hereditatis."--THORPE, II,
149; WASSERSCHLEBEN, 309. _Cf._ ÆLF., 18:
THORPE, I, 73; YOUNG, in _Essays_, 169.
[896] INE, 31: THORPE, I, 123. Compare
YOUNG, _loc. cit._, 168, 169.
[897] SOHM, _Eheschliessung_, 75-106; _idem_, _Trauung
und Verlobung_, 1-37, _passim_; YOUNG, _loc. cit._,
167-69.
The theory of Sohm has elicited much controversy.[898] It is clear
that the ancient betrothal was of greater legal significance than
the modern; but "on the other hand," to quote the judgment of
Pollock and Maitland, "it seems too much to say that the betrothal
was the marriage;" for the fulfilment of the contract could not be
enforced. Moreover, they justly urge, we cannot be certain that
betrothal by the "woman's father or other protector was essential
to a valid marriage; we have to reckon with the possibility--and
it is somewhat more than a possibility--of marriage by capture. If
the woman consented to the abduction, then, according to the theory
which the Christian church was gradually formulating, there would
be all the essentials of a valid marriage, the consent to be husband
and wife and the sexual union."[899]
[898] His _Eheschliessung_ (1875) called forth the _Verlobung
und Trauung_ (1876) of FRIEDBERG; also a critique
by MEYER, in the _Jenaer Lit. Ztg._, Jan., 1876,
501 ff. SOHM defends his position in _Trauung und
Verlobung_ (1876), 15 ff.; in his _Zur Trauungsfrage_, 11 ff.;
and in the _Strassburger Festgabe für Thöl_, 84, 98 n. 27. The
views of Sohm and others are examined by HABICHT,
_Altdeutsche Verlobung_ (1879), who concludes (75) that "Die
Verlobung ist nicht Beginn der Ehe, aber die rechtliche
Grundlage und nothwendige Voraussetzung derselben." The
_Trauung_ is "fulfilment of the betrothal" and "constitutes
the beginning of the marriage." LEHMANN, _Verlobung
und Hochzeit_ (1882), examines the problem from the standpoint
of northern law, and reaches the analogous result (124, 125)
that the "betrothal is a primary and independent, the nuptials
(_Hochzeit_) a secondary and dependent, act for joining in
marriage (_Eheschliessungsact_); the betrothal is the real
_Eheschliessungsact_, the nuptials an _Ehevollziehungsact_."
Sohm's view is adopted by SPIRGATIS, _Verlobung
und Vermählung_, 4 f.; it is attacked by SCHEURL,
_Kirchliches Eheschliessungsrecht_, 35 ff.; it is regarded
as extreme (_übertrieben_), though in spirit right, by
SCHUBERT, _Die evangelische Trauung_, 15 n. 2;
LOENING, _Gesch. d. deut. Kirchenrechts_, II, 581,
600 n. 1; both betrothal and tradition are essential to a
German marriage according to SEHLING, _Unterscheidung
der Verlöbnisse_, 30; while HEUSLER holds that
neither betrothal nor tradition, but the _copula carnalis_,
is the essential point: _Institutionen_, II, 284. _Cf._
KLEIN, _Das Eheverlöbniss_, 130-34; SCHROEDER,
_Rechtsgeschichte_, 296, 297, and authorities there cited; and
DIECKHOFF, _Kirchliche Trauung_, 66, 67, note, 97, who
favors and summarizes Sohm's view.
[899] POLLOCK AND MAITLAND, II, 368. _Cf._
DARGUN, _Mutterrecht und Raubehe_, 23 ff.
Besides the normal or full marriage of free men and women,
just described, the law-books recognize concubinage, so-called
"marriages" between the unfree, and unions between the free and
the unfree. The church, by giving them a sacramental sanction,
constantly strove to raise these irregular connections to the
rank of genuine wedlock. See especially KOEHNE, "Die
Geschlechtsverbindungen der Unfreien," in GIERKE'S
_Untersuchungen_, XXII, 1-23; and the literature on the subject
mentioned in the Bibliographical Note at the head of this chapter.
II. RISE OF FREE MARRIAGE: SELF-BEWEDDUNG AND SELF-GIFTA
Already in the eleventh century the forms of marriage were entering
upon another stage. It is possible, in the historical period, as
already seen, that a valid marriage could arise in abduction,
through subsequent payment of a fine; and it is not impossible
that side by side with wife-purchase the custom of free marriage
by simple agreement of the parties may have existed, as we have
found it existing among other peoples. But the practice could not
have been widely extended, and it may imply merely the indulgence
or silent consent of the legal protector.[900] Hitherto, so
far as the positive provisions of the law-books are concerned,
betrothal by the natural guardian or his representative[901] had
been essential to a valid contract. Originally the father could
betroth his daughter even against her will.[902] But, just as
the guardianship of the husband as respects the wife's property
gradually becomes transformed into a merely formal guardianship or
judicial control,[903] so the power of the father is first weakened
by granting the daughter a veto on the choice of a bridegroom; that
is, by making her consent necessary to a binding contract; and
then, presently, the relations of guardian and ward are entirely
transposed: self-betrothal by the daughter constitutes a valid
contract, while the father is allowed only a veto power. Naturally
it was the widow, in the case of a second marriage, who first
succeeded in emancipating herself from tutorial control. Among the
Germans in the time of Tacitus it was against popular usage, if
not illegal, for a widow to marry again.[904] But in the folk-laws
she appears on practically the same footing as a girl in this
regard;[905] and placed as she was "between two families," with
the "possibility of recourse to her own kindred" in case her first
husband's relatives as possessors of the _mund_ over her refused
their assent to a second marriage, she soon succeeded in freeing
herself entirely from such restraints.[906]
[900] That free marriage sometimes occurred is, of course, a
conjecture. But see DARGUN, _Mutterrecht und Raubehe_,
24 ff.; and KOHLER, in _ZVR._, VI, 321, for the alleged
survival of marriage _ohne Mundium_, which they assume to be
a survival of _Mutterrecht_. This assumption, of course, is
doubtful. _Cf._ UNGER, _Die Ehe_, 105, 106. See chap.
iv, above.
[901] "So long as marriage was a strictly civil [lay] ceremony,
as well as a purely civil engagement, the bride's father or
guardian performed the rite. It was he who took her by the neck
and shoulders, and gave her to the bridegroom. He gave the
symbolic shoe. In the Danish matrimonial rite of a subsequent
period the father's part was even more impressive. In language,
never in later times permitted to our English clergy, he declared
himself the actual maker of the marriage, when, on hand-fasting
the bride and groom, he said to the latter, 'I join this woman
to you in honour to be your wife, with a right to half of your
bed and keys, and to a third of your goods acquired or to
be acquired, according to the law of the land and St. Eric.
In the name of the Father, and of the Son, and of the Holy
Ghost.'"--JEAFFRESON, _Brides and Bridals_, I, 53.
_Cf._ on the Danish "hand-fasting" BRAND, _Popular
Antiquities_, II, 87, 88; BULLINGER, _Christen State of
Matrimonye_, 43.
[902] SOHM, _Eheschliessung_, 50; _cf._
LEHMANN, 13.
[903] "Processvormundschaft": SOHM, _op. cit._, 52.
[904] TACITUS, _Germania_, cc. 18, 19.
[905] These codes sometimes fixed a term within which a widow
may not marry, but a second marriage is treated as entirely
legal: _Lex salica_, c. 44: BEHREND, 57-59; _Lex
saxonum_, tit. vii, 3, 6: WALTER, _Corp. juris
germ._, I, 387; _Lex wisigothorum_, lib. iii, tit. 2, c. 1,
tit. 4, c. 2, 7: WALTER, I, 470, 471, 477, 478; _Lex
burgund._, tit. 24, c. 1, tit. 52: WALTER, I, 316,
330; _Edictum Rotharis_, cc. 178, 182, 188: WALTER,
I, 710, 711, 714; ÆTHELBERHT, 76; ÆTHELRED,
V, 21; CANUTE, 73, 74: SCHMID, _Gesetze_,
8, 224, 310, 312. _Cf._ HABICHT, _Altd. Verlobung_,
16 ff.; SOHM, _Eheschliessung_, 63, who differ as to
the interpretation of the much-disputed c. 44, _lex sal. de
reipus_; GRIMM, _Rechtsalt._, 452; SCHROEDER,
_Güterrecht_, I, 56, 57.
[906] HABICHT, _Altdeutsche Verlobung_, 26, 27. The
Saxon and Lombard laws allow the widow to appeal to her own
family in case her legal tutor--that is, her deceased husband's
family--will not consent: HABICHT, 17, 18. On the
freedom of the English widow see ROEDER, _Die Familie
bei den Angelsachsen_, 26 ff.
Canute forbids the marriage of a maiden against her will.[907]
If consent of father or guardian be not obtained, the betrothal
is still binding, but the daughter may be punished by loss of
inheritance. Thus early do we find the beginning of the private
marriages, which subsequently, under the names of "irregular" or
"clandestine," played so great a rôle in the history of matrimonial
law.
[907] CANUTE, II, 75: "and let no one compel either
woman or maiden to him whom she herself mislikes, nor for
money sell her; unless he is willing to give anything
voluntarily."--THORPE, I, 417. For the similar
provisions of Gothic and Lombard law see HABICHT, 23 ff.
The form of contract observed in self-betrothal is usually the
_wed_, sealed by the _Handschlag_ or hand-fasting. The "real
contract" through payment of the _arrha_ is, however, also retained;
but the _arrha_ is paid, not to the guardian, but to the bride, and
appears most frequently in the form of the ring, so well known to us
as the betrothal or "engagement" ring.[908] The ring had been used
by the Romans as _arrha_; and, like the bridal wreath and the bridal
veil, it seems to have been borrowed from them by the Germans.[909]
On the other hand, though there can be little doubt of the
historical connection of the betrothal ring and its duplicate,
the wedding ring, with the _arrha_,[910] whether or not it may be
regarded as a surviving symbol of the former servitude of the wife
must depend upon the acceptance or rejection of the view that the
actual sale-marriage, as opposed to the transfer of the _mund_, ever
existed among the Teutonic peoples. "A favorite theory," says Henry
Adams, "has insisted upon regarding the wedding ring as a badge of
servitude or a symbol of purchase. This idea cannot be maintained.
The wedding ring appears in its origin to have been merely the
earnest money which bound the contract of marriage between the
father and the husband, and was not the only symbol of the kind in
early custom, although no other survives in modern use. The ring
proved, not that marriage was a sale, but that marriage was a civil
contract executed according to the strict formalities of contracts
in the primitive law; it proved, not that women were deprived of
rights, but that their rights were secured to them in marriage by
the most careful provisions known to early society."[911] This is,
of course, a very emphatic statement of one side of the case; and
it should not be overlooked that the ring may stand as a symbol of
equitable contract; and yet the _arrha_, which the ring is, may mark
but the intermediate stage in the evolution of the betrothal from
the ancient process of actual sale. Nor does the connection of the
betrothal ring with the Roman and German _arrha_ necessarily exclude
other historical associations. Kulischer,[912] for instance, traces
its origin to wife-capture. Like the betrothal band or thread, which
sometimes appears with it or in its place, he believes that the
ring symbolizes the fetters with which the captive maid was bound.
But the evidence to support this theory is not conclusive.[913] The
practice of exchanging rings, of giving a ring to the bridegroom
as well as to the bride, did not arise until the later Middle
Ages.[914] In England the drinking of a cup of wine and the breaking
of a gold piece between the bride and bridegroom appear as forms
of the _arrha_.[915] Naturally after the _arrha_ is paid to the
bride it becomes confused with the _wed_, and soon all distinction
between the two forms of contract is lost. "Indeed at an early day
the arrha was called a wed, and it was legally indifferent whether
the oath, hand-fasting or other wed, or the ring or penny[916] were
used. Therefore the ring and penny are found in conjunction with the
glove; that is, with a real wed. And it is especially of interest
that the English language still calls marriage a wedding, and that
in England the ring (that is the arrha) is still used to wed the
bride."[917]
[908] SOHM, _Eheschliessung_, 54. Sohm's theory
of self-betrothal and self-_Trauung_ is criticised by
FRIEDBERG, _Verlobung und Trauung_, 9, 11 ff. In
general see SPIRGATIS, _Verlobung und Vermählung_,
6 ff.; HEUSLER, _Institutionen_, II, 286; and with
SOHM'S _Eheschliessung_, as below cited, compare his
_Zur Trauungsfrage_, 12 ff.
[909] The ring is mentioned as _arrha_ in _Dig._, xiv, tit.
iii, 5, § 15; xix, tit. i, 11, § 6: _Corpus juris civ._, I,
189, 244. _Arra_ appears in connection with _sponsalia_,
_Dig._, xxiii, tit. ii, 38: _Corpus juris civ._, I, 297.
_Cf._ SMITH, _Dict. Greek and Roman Ant._, I,
193; LUDLOW, in _Dict. Christ. Ant._, I, 142 ff.;
BABINGTON, _ibid._, II, 1807-9; MEYRICK,
_ibid._, 1105. Originally, we are told, the Roman lover presented
his betrothed a plain ring of iron, in later days of gold,
but did not receive one in exchange: FRIEDLÄNDER,
_Sittengeschichte_, I, 456; KULISCHER, in _ZFE._, X,
210. On the _annulus pronubus_ and its acceptance by the Germans
see JUNIUS, _De annulo romanorum_; MÜLLER, _De
annulo pronubo_; HOFMANN, _Verlobungs- und Trauring_,
829 ff.; SIEGEL, _Deutsche Rechtsgeschichte_, 451;
WEINHOLD, _Deutsche Frauen_, I, 343; BINGHAM,
_Orig. Ecc._, VII, 311, 313-16, 337, 339; HOWLETT,
in ANDREWS'S _Curious Church Customs_, 105, 107-9;
FRIEDBERG, _Eheschliessung_, 26 n. 3; SOHM,
_Eheschliessung_, 54, 55.
In the marriage ceremony of the Greek church two rings are used,
one of silver and one of gold; see ritual for espousals in the
eastern church in BURN, _Parish Registers_, 141, 142;
and in BINGHAM, _The Christian Marriage Ceremony_,
214 ff., 219; and _cf._ ZHISHMAN, _Das Eherecht der
orientalischen Kirche_, 691; and MEYRICK, in _Dict.
Christ. Ant._, II, 1105. The betrothal ring appears among the
Slavs: POST, _Familienrecht_, 236. In mediæval England
"a rush ring was supposed to possess some peculiar charm. Richard
Poore, bishop of Salisbury, in his _Constitutions_, anni 1217,
forbids the putting of _rush rings_, or any the like matter, on
women's fingers, in order to the debauching them more readily,"
and he insists that some people thought that "what was thus done
in jest was a real marriage": BURN, _op. cit._, 143.
_Cf._ DOUCE, _Illustrations of Shakespeare_, I, 315-19;
WOOD, _The Wedding Day_, 232, 233, 241. On the various
uses and symbolism of the ring among the Teutonic peoples read
the lecture of HODGETTS, _Older England_, 125-57; and
a valuable general treatise on the ring is JONES'S
_Finger Ring Lore_ (London, 1890). TEGG, _The Knot
Tied_, 309-37, has two chapters on the marriage ring; throughout
WOOD'S _The Wedding Day in all Ages and Countries_
much information on the subject will be found; and there is an
interesting passage in SWINBURNE, _Of Spousals_, 207-9,
quoted below, with other references, chap. vii, sec. 1.
The kiss at betrothal appears to have been borrowed by the
Christians from older pagan custom, and it was first given
legal importance by Constantine. If the kiss were given, he
provided that, in case one of the parties died before the
nuptials, the other party was entitled to inherit half the
espousal donations: _Cod. Theod._, lib. iii, tit. 5, leg. 5;
_Cod. Just._, lib. v, tit. 3, leg. 16: _Corpus juris civ._, II,
194. TERTULLIAN, _On the Veiling of Virgins_, chap. 11:
_Ante-Nicene Faths._, IV, 34, mentions the betrothal kiss as a
heathen custom. _Cf._ VENABLES, in _Dict. Christ. Ant._,
II, 905, 906; BINGHAM, _Orig. Ecc._, VII, 316; V, 75;
WEINHOLD, _Deutsche Frauen_, I, 343, 344. In England
the priest joined in the ceremony of kissing at the nuptials.
"In the Articles of Visitation in the diocese of London in 1554
is the following, 'Item, whether there be any that refuseth
to kysse the Prieste at the solempnization of matrimony, or
use any such lyke ceremonies heretofore used & observed in the
Churche'": BURN, _op. cit._, 143; _cf._ DOUCE,
_Illustrations of Shakespeare_, I, 112, 403; WOOD, _The
Wedding Day_, Index.
[910] See especially the careful monograph of HOFMANN,
_Ueber den Verlobungs- und Trauring_ (Vienna, 1870); and compare
FRIEDBERG, "Zur Geschichte der Eheschliessung,"
_ZKR._, I, 370 n. 34, 372 n. 41; SPIRGATIS, _Verlobung
und Vermählung_, 16, 17; THRUPP, _The Anglo-Saxon
Home_, 48 n. 50. Dogmatic writers, of course, see in the ring
an alleged Christian symbolism: _cf._ BRISSONIUS,
_De ritu nuptiarum_, 3 ff.; KLEE, _Die Ehe_, 127-29;
GÖSCHL, _Darstellung der kirchlich-christlichen
Ehegesetze_, 183 ff.; DIECKHOFF, _Die kirch. Trauung_,
28, 29.
[911] ADAMS, "Primitive Rights of Women," _Hist.
Essays_, 35.
[912] KULISCHER, "Intercommunale Ehe durch Raub und
Kauf," _ZFE._, X, 208-10.
[913] The proof consists in the interpretation of the supposed
symbolism. Thus the German lover, in early times, placed upon the
bride's finger a ring made of a twig plucked from a tree upon his
own land, the bride thus being "symbolically bound to the new
locality": UNGER, _Die Ehe_, 106. The thread or band is
interpreted as the bond of the captive; and Kulischer gives the
following illustration from northern custom:
"Komm, komm Maria lieb, und reich mir deine Hand,
Hier hast du das Ringelein und um den Arm das Band,"
runs a Swedish rhyme. In an Upland dance, the maiden sings:
"Und willst mich schliessen an's Herz dein,
Sollst mir zuvor geben ein Ringelein."
To which the young man replies:
"Hier hast du Ring und Verlobungsband,
Du sollst mich nicht betrügen."
Sometimes these symbols are brought into connection with the
sword--also, it is assumed, a survival of violence. Thus in an
Anglo-Saxon picture of the eighth century the bridegroom reaches
to the bride the ring upon a sword or staff: KULISCHER, 209; _cf._
WEINHOLD, _Deutsche Frauen_, I, 241, 242.
[914] WEINHOLD, _op. cit._, 343; SCHROEDER,
_Rechtsgeschichte_, 700, note; SIEGEL, _Deutsche
Rechtsgeschichte_, 453, who ascribes the practice to the
imitation of the court manners. Even now in the English
ceremonial only the bride receives a ring, consistently with its
origin in the _arrha_. _Cf._ FRIEDBERG, _op. cit._, 38,
notes.
[915] FRIEDBERG, _op. cit._, 42, 43; SOHM,
_Eheschliessung_, 54; _cf._ ROEDER, _Die Familie bei den
Angelsachsen_, 30 ff.
[916] That is, forms of the _arrha_.
[917] SOHM, _Eheschliessung_, 56; _cf._ MAX
MÜLLER, _Essays_, II, 251.
Simultaneously with the rise of self-betrothal, the bride gained
also the right of self-_gifta_. The parties might conduct the
ceremony themselves.[918] But in place of the natural guardian,
who originally possessed the sole legal right to officiate at the
tradition of the bride, appears often a "chosen guardian," selected
by the bride or by the betrothed couple. The person thus selected
may be the father or other relative of the bride, or any third
person whatever.[919] Moreover, in the marriage rituals of the
eleventh century[920] an _orator_ or _Fürsprecher_ appears, who acts
as an "assistant" to the natural guardian, dictating the solemn
phrases of the ritual and guiding the whole proceeding. Friedberg
regards the orator as the predecessor of the priest, and thus,
of course, of the civil magistrate as conductor of the nuptial
ceremony.[921] But Sohm has shown that the functions of the priest
or magistrate grew out of those of the "chosen guardian," and that
the "_Trauung_ by a _Fürsprecher_ is in itself a contradiction." The
latter is "never an actor, but always an aid to the actor. He has in
truth only to speak, nothing to do."[922] While thus theoretically
there is a great difference between the orator and the chosen
guardian, and both could, and probably did, for a time participate
in the same ceremony, still the practical result is in accordance
with the view of Friedberg. For if, as Sohm has shown, the motive
for the creation of the institution of orator was the fact that the
elaborate phrases of the old rituals were rapidly passing from the
memories of the people, and it was necessary to call in a lawyer
or other person skilled therein to assist the parties,[923] it is
certain that the chosen guardian, whether layman or priest, soon
satisfied this necessity, and ultimately inherited the functions of
the orator.[924]
[918] FRIEDBERG, _op. cit._, 25.
[919] SOHM, _op. cit._, 67 ff.
[920] _Ibid._, 67, and the Italian ritual of the eleventh century
in _Anhang_, II, 318, 319.
[921] FRIEDBERG, _op. cit._, 25 ff., 93 ff., 62.
[922] SOHM, _op. cit._, 71 ff., 166 n. 31. The
_Fürsprecher_ or _orator_ here mentioned, in accordance with the
view of Sohm, must not be confused with the _forespreca_ of the
old English formulary above quoted; the latter was the guardian
himself or a representative--a _Processvormund_: SOHM,
72.
[923] SOHM, _op. cit._, 67.
[924] SOHM, _ibid._, 166 n. 31, concedes this.
From about the beginning of the thirteenth century self-_gifta_ was
the only form of nuptials; and an important result of the custom
was the gradual omission of the solemn symbols, such as the giving
of the sword, hat, or mantle, indicative of the transfer of the
powers of guardianship. The tradition of the bride was no longer a
real tradition. The _gifta_ had become a simple oral declaration of
union.[925] Besides this modification of the ceremony is another,
both of which have been retained to our own times. "We often find
that the chosen guardian not only gives the bride to the bridegroom,
but likewise the bridegroom to the bride; because, in reality, he
occupies the same position in regard to each, that is a position
implying no power."[926] Thus the marriage is no longer a surrender
of the power of the guardian and a transfer of the same to the
bridegroom, but only the expression of a mutual gift.[927]
[925] A _Zusammensprechen_: SOHM, _op. cit._, 73.
[926] _Ibid._
[927] A _Zusammengeben_: _ibid._
Self-_gifta_ and the practice of choosing a third party to assist
the bride has an important bearing, as already intimated, on
the development of the functions of the clergy in the marriage
celebration. But before discussing this point it is desirable to
notice another fact essential for a proper understanding of the
present forms of solemnization. From the eleventh century onward it
became customary in Europe to repeat the ceremony of betrothal, or
"spousals," at the nuptials. The rituals which have been preserved
are divided into two parts. "The first part contains a formal
contract of betrothal with the guardian (_Vogt_) of the bride in the
form of a wed. The second part contains the _Trauung_ through the
solemn surrender of the bride by the guardian."[928] This remarkable
dualism is the most striking feature of the present marriage service
of the English church,[929] which is derived through the liturgies
of Elizabeth and Edward VI.[930] from the most ancient manuals,
particularly those of Hereford, Durham, Sarum, and York. The
betrothal comes first, and it is always a contract in words of the
future tense, corresponding to the _sponsalia per verba de futuro_
of the canonists, which will again be referred to. In the York
service, for example, the priest says to the man: "Wylt thou have
this woman to thy wyfe?" and to the woman: "Wylt thou have this man
to thy husbande?" Each party answers: "I wyll." Then takes place
the solemn tradition, or giving of the bride to the bridegroom, who
says, in words of the present tense: "Here I take thee N. to my
wedded wyfe;" and the woman responds in the same formula: "Here I
take thee N. to my wedded husbande."[931]
[928] _Ibid._, 100 ff.
[929] See the ritual in BINGHAM, _The Christian Marriage
Ceremony_, 163, 164; TEGG, _The Knot Tied_, 10 ff.;
MOORE, _How to Be Married_, 27 ff.
"This first part of the office was anciently termed the
espousals, which took place some time before the actual
celebration of marriage. The espousals consisted in a mutual
promise of marriage which was made by the man and woman
before the bishop or presbyter and several witnesses; after
which articles of agreement of marriage (called _tabulae
matrimoniales_), which are mentioned by Augustine, were signed
by both persons. After this the man delivered to the woman the
ring and other gifts, an action which was called _subarrhation_.
In the later ages the espousals have always been performed
at the same time as the office of matrimony, both in the
western and eastern churches; and it has long been customary
for the ring to be delivered to the woman after the contract
has been made, which has always been in the actual office of
matrimony."--PALMER, _Origines liturgicae_ (1839);
quoted also by JEAFFRESON, _Brides and Bridals_, I, 68,
who in his chapter on "Espousals" (_op. cit._, I, 60-87) gives
much information relating to ancient betrothal customs. _Cf._
BRAND, _Popular Antiquities_, II, 87-98 (betrothal
customs).
[930] _Liturgies of Edward VI._, 128, 129; _Liturgies of
Elizabeth_, 218, 219.
But the repetition of the betrothal is of no legal significance,
save as a guaranty of the existence of a contract before the actual
union. It is a "declaratory" act, a mere confession of betrothal.
As a result of the repetition there soon arises an entire confusion
in the symbols. In a Suabian ritual of the twelfth century the
guardian delivers to the bridegroom "not only the sword, hat, and
mantle, that is, symbols of the _gifta_, but also the _wette_ or
wed, the ring and penny, that is, symbols of the betrothal. Thus
the bridegroom in the ring and penny, instead of paying, actually
received the remnants of the old purchase price of the wife."[932]
[931] See the "Ordo ad facienda sponsalia," in the _Manuale et
processionale ad usum insignis ecclesiae eboracensis_: Surtees
Society _Publications_, LXIII, 26, 27. The double ceremony also
appears in the Sarum or Salisbury manual: MASKELL,
_Monumenta ritualia_, I, 56, 57: Surtees Society _Publications_,
LXIII, Appendix, 18, 19; in the ritual of Hereford; that of the
twelfth century contained in a Pontifical of the library of
Magdalen College, Oxford; in that of the missal of Hanley Castle,
Worcestershire, dating from the thirteenth century; and in that
of the fifteenth century in the Harleian MS., No. 2860, British
Museum; that of a Welsh manual of the same century, in the
library of the dean and chapter of Hereford; while it is plainly
discernible in the ritual of the twelfth century contained in
the Ely Pontifical of Cambridge University library; and that
of the Pontifical of Anianus, bishop of Bangor, 1268-1304: all
printed in Surtees Society _Publications_, LXIII, Appendix,
116, 155-69. _Cf._ the rituals printed by DIECKHOFF,
_Kirchliche Trauung_, 73, 77, 89 ff.; and the Roman marriage
service in BINGHAM, 177, 178, where the dualism appears;
but in the ritual of Paul V. it is not retained, unless the
subsequent giving of the ring may be regarded as the second part.
The priest says: "M. vis accipere N. hic praesentem in tuam
legitimam uxorem?" or "tuum legitimum maritum?" and on receiving
the answer, "Volo," proceeds: "Ego conjungo vos in matrimonio":
_Rituali romanum Pauli Quinti_ (Rome, 1816), 199 f. See the
discussion of the contents of the early rituals in chap, vii,
below.
[932] SOHM, _Eheschliessung_, 101 ff. The text
of this extremely interesting marriage ritual is printed
in FRIEDBERG, _Eheschliessung_, 26, 27; and in
SOHM, _Anhang_, III, 319, 320. For a description of
these early rituals see WEINHOLD, _Deutsche Frauen_, I,
340-48.
In our own civil-marriage ceremonies, where the dualism does not
usually appear, the responses of the parties, the "Yes," "I do," or
"I will," are nothing more than the survival of the ancient private
betrothal, now recognized by law as the only essential parts of
the nuptial ceremony; while the wedding ring is merely a duplicate
of the betrothal or engagement ring, both being the survival of
the _arrha_ and, therefore, of the ancient purchase price of the
bride.[933]
[933] SOHM, _op. cit._, 105 n. 70. On the ring in
English rituals see FRIEDBERG, _op. cit._, 38, note, 46,
47.
The primitive and mediæval marriage whose development has thus
been traced to the thirteenth century was not "civil" marriage in
the strict sense of the word; that is, a marriage contracted under
sanction of the civil authority, as opposed to one solemnized by
authority of the church and according to ecclesiastical forms.[934]
It was a civil marriage only as being a lay marriage. There is
no trace of any such thing as public license or registration; no
authoritative intervention of priest or other public functionary.
It is purely a private business transaction. Either the guardian
gives away the bride and conducts the ceremony; or else the solemn
sentences of the ritual are recited independently by the betrothed
couple themselves. These formalities and the presence of the friends
and relatives[935] are the only means of publicity, the only
substitute for the modern cognizance of the state.[936] Rights and
obligations growing out of the marriage contract are enforced in the
local or national courts just as other civil rights and obligations
are enforced. Only gradually was the ancient usage in this regard
superseded. Slowly but firmly was the exclusive jurisdiction of
the church in matrimonial causes established. Spiritual courts and
the canon law came into existence. In England after the Norman
Conquest the removal of ecclesiastical suits from the temporal to
the new church tribunals led eventually to serious evils. With the
Reformation the way was open for the intervention of the civil
power. Beginning in Holland and America, the state has claimed her
right to control the marriage celebration and the administration of
matrimonial law as being of vital interest to society. How this came
to pass will be explained in the following chapters.
[934] _Ibid._, 30.
[935] TACITUS, _Germania_, 18: "intersunt parentes
ac propinque." It was customary in the Middle Ages for the
assembled friends to form a circle--_Ring_--about the betrothed
couple during the ceremony. Publicity was made a legal
requirement by Pippin: WALTER, _Corpus juris_, II, 42.
FRIEDBERG, _op. cit._, 24 n. 4, gives also references
to mediæval poems. He regards the practice of inviting a large
number of friends as originating in the desire to secure
publicity. Particular cities passed laws requiring the presence
of witnesses; for example, Prague.
[936] Except the publication of banns hereafter mentioned.
CHAPTER VII
RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH ACCEPTS THE LAY CONTRACT
AND CEREMONIAL
[BIBLIOGRAPHICAL NOTE VII.--For the original Christian usage
the writings of the early Fathers are of primary interest, and
an English version of them is available in _The Ante-Nicene
Fathers_ (Buffalo, 1885-87), edited by Roberts and Donaldson
and revised by A. C. Coxe. An indispensable handbook and
bibliographical guide for the study of this subject, as well
as for a multitude of questions connected with the first
eight centuries of Christian history, is Smith and Cheetham's
_Dictionary of Christian Antiquities_ (London, 1875-80),
particularly Meyrick's article, "Marriage," and Ludlow's clear
and thoroughly critical discussions of the "Benediction,"
"Betrothal," and "Arrhae." Important sources for this chapter
are also the _Corpus juris civilis_ (Berlin, 1872), edited
by Krüger and Mommsen; Richter and Friedberg's _Corpus juris
canonici_ (Leipzig, 1881-); Haddan and Stubbs's _Councils
and Ecclesiastical Documents_ (Oxford, 1869-78); Wilkins's
_Concilia_ (London, 1736-37); Gee and Hardy's _Documents_
(London 1896); Glanville's _Tractatus_, in Vol. II of Phillips's
_Reichs- und Rechtsgeschichte_ (Berlin, 1827-28); and with
these may be used to advantage Johnson's _Collection of the
Laws and Canons of the Church of England_ (London, 1850). On
marriage at the church door, _The Old English Homilies_ (London,
1868); Gregory's _Pastoral Care_ (London, 1871); Hengham's
_Summa parva_ (London, 1737); Home's _Mirror of Justices_ (ed.
Whittaker, London, 1895); Fitzherbert's _New Natura Brevium_
(Dublin, 1793); as well as Fleta, Britton, and Bracton, have
furnished illustrative passages.
The evolution and character of the celebration are best seen in
the marriage rituals themselves. For the European practice in
general, including the English rites, consult the second book
of Selden, _Uxor ebraica_ (Frankfort on the Oder, 1673); or the
same in Vol. II (III, as bound) of his _Opera omnia_ (London,
1726); and the first book of Martene, _De antiquis ecclesiae
ritibus_ (Antwerp, 1763-64), in both of which works a large
number of rituals, with a mass of other useful materials, will
be found. Some portions of Martene are extracted by Michelet
in chap. ii of his _Origines du droit français_ (Paris,
1857); and many rituals, both of the East, and the West, are
epitomized in Palmer, _Origines liturgicae_ (3d ed., Oxford,
1839), the use of which is facilitated by Beal, _Analysis of
Palmer's Orig. Lit._ (Cambridge, 1856). Some of the earliest
Christian _sacramentaria_, the eleventh-century ritual of
Rennes, and various other mediæval _ordines_ are republished
by Dieckhoff, _Die kirchliche Trauung_ (Rostock, 1878). Sohm,
_Eheschliessung_, gives the Rennes service above named, as well
as those mentioned in Bibliographical Note VI; and the principal
parts of the twelfth century "Pontifical ou rituel de lire" are
quoted by Léon Gautier in his fascinating book _La chevalerie_
(Paris, 1884), where may be found the best and most detailed
account existing of the rites and social usages connected with a
mediæval French marriage. Most important of all for the present
purpose, however, are the ancient English liturgies. That of
Sarum (Salisbury) is published by Maskell, _Monumenta ritualia
ecclesiae anglicanae_ (Oxford, 1882), with the essential
clauses of the York service in the margin; while the rituals of
Salisbury, York, and Hereford, together with extracts from ten
other marriage services, ranging all the way from the eighth
to the fifteenth century, are contained in Vol. LXIII of the
Surtees Society _Publications_ (London, 1875). With these may
be compared the Catholic forms in the _Rituale romanorum Pauli
Quinti_ (Rome, 1816); and those of the Reformation in the
_Liturgies of Edward VI._ (Cambridge, 1844); and the _Liturgies
of Elizabeth_ (Cambridge, 1847), both in the publications of
the Parker Society. The earlier of these may also be found
in the "First" _Book of Common Prayer_, 1549 (exact reprint,
black letter, London, 1844); or in the "Second" _Book of Common
Prayer_, reprinted in the same style at London in the same year.
With these collections will be found useful Lathbury, _History
of the Book of Common Prayer_ (2d ed., Oxford and London, 1859);
and Daniel, _The Prayer Book_ (London, 1877). The marriage
rituals of the modern Greek, Roman, and English churches are
given in Bingham (J. F.), _The Christian Marriage Ceremony_ (New
York, 1871); and the English service, with discussion, may also
be found in Tegg, _The Knot Tied_ (London, 1877); and Moore,
_How to Be Married_ (London, 1890).
The principal sources for the study of the Council of Trent
are Richter-Schulte, _Canones et decreti concilii tridentini_
(Leipzig, 1853); Theiner, _Acta genuina concilii tridentini_
(Zagrabrae, Croatiae, 1874); Father Sarpi (Pietro Soave Polano),
_Historie of the Council of Trent_ (London, 1620), opposing the
action of the Council; and his antagonist Pallavicino, _Istoria
del Concilio di Trento_ (Rome, 1833); or the Latin version of
the same by Giattino (Antwerp, 1670). A convenient collection on
this subject is Waterworth, _Canons and Decrees of the Council
of Trent_ (New York, 1848); while valuable monographs are Salis,
_Die Publikation des tridentinischen Rechts der Eheschliessung_
(Basel, 1888); Leinz, _Die Ehevorschrift des Concils von Trient_
(Freiburg, 1888); Fleiner, _Die tridentinische Ehevorschrift_
(Leipzig, 1892); and Meurer, "Die rechtliche Natur des trid.
Matrimonial-Decrets," in _ZKR._, XXII (Freiburg, 1889). The
action of the Council is treated in Esmein, _Le mariage en
droit canonique_ (Paris, 1891); Madan, _Thelyphthora_ (London,
1781); Bohn, _Political Cyclopædia_ (London, 1860); as also by
Sohm and Friedberg. Froude's _Lectures on the Council of Trent_
(New York, 1896) are too general to be of value for the present
subject.
For the great case of Regina _v._ Millis, historically so
surprising, the _Report of the Cases of Regina v. Millis et
Regina v. Carroll in the Queen's Bench, Ireland_ (Dublin, 1842);
and 10 Clark and Finnelly, _Reports of Cases Decided in the
House of Lords_, are indispensable. In connection therewith read
Sir John Stoddart, _Observations on the Opinion_ (London, 1844);
his _Letter to Lord Brougham_ (London, 1844); and Elphinstone's
paper in the _Law Quarterly Review_, V (London, 1889). To
supplement these may be consulted the Jesuit Sanchez's treatise,
_Disputationum de matrimonii sacramento_ (Venice, 1625); the
older handbook of Lyndwood, _Provinciale_ (n. p., 1505; or
Oxford, 1779); and, in general, Bishop, _Marriage, Divorce, and
Separation_ (Chicago, 1891); Stephens, _Laws of the Clergy_
(London, 1848); Reeves, _History of the English Common Law_, IV;
Bright, _Husband and Wife_ (New York, 1850); the concise and
accurate discussion of Pollock and Maitland, _History of the
English Law_, II; and the masterly investigation of Friedberg
in his _Eheschliessung_. For the more celebrated earlier cases
with which the judgments in the Queen _v._ Millis are not
in harmony see 1 Roll, _Abridgement_, 353 (Foxcroft's case,
_ca._ 1282); Year Book 34 Edward I. (Delheith's case, 1305); 2
Haggard, _Consistory Reports_, 54-137 (Dalrymple v. Dalrymple,
1811); 2 Coke's _Reports_, 355-59 (Bunting _v._ Lepingwell);
especially the numerous decisions in Hale's unique _Precedents
and Proceedings in Criminal Causes, 1475-1640_ (London, 1847);
and compare the later case of Beamish _v._ Beamish, 1859-61,
in Clark, 9 _House of Lords Cases_ (Boston, 1871), which
follows the precedent in Queen _v._ Millis, giving a history
of matrimonial laws from Anglo-Saxon times. On this decision
there is a very instructive passage in Pollock, _First Book
of Jurisprudence_ (London, 1896). On Dalrymple _v._ Dalrymple
consult Dodson's _Report of the Judgment of Sir William Scott_
(London, 1811). See further the note at the close of this
chapter.
At the head of all scientific historical writers on the rise
of ecclesiastical marriage is Sohm whose main thesis, that
the early canon law of the marriage contract rests on the
principles of German custom, has fairly withstood the test of
criticism. His principal work on this subject, _Eheschliessung_,
elsewhere mentioned, is supplemented by the _Zur Trauungsfrage_
(Heilbronn, 1879), and the _Obligatorische Civilehe_ (Weimar,
1880); and in these he has proved beyond reasonable doubt
that the _legal_ participation of the church in the nuptial
celebration is of late origin. Agreeing with Sohm in his main
conclusion, but differing on some questions, is Schubert,
_Die evangelische Trauung_ (Berlin, 1890); and he is in part
anticipated by Biener in the much earlier "Beiträge zu der
Geschichte der Civilehe," in _Zeitschrift für deutsches Recht
und Rechtswissenschaft_, XX, 119-44 (Tübingen, 1861). He is
stoutly opposed on all the main points in Sehling's able
monograph, _Die Unterscheidung der Verlöbnisse im kanonischen
Recht_ (Leipzig, 1887); and also, especially regarding the late
origin of the legal ecclesiastical celebration, by Dieckhoff
in the work already mentioned, as also in his _Civilehe und
kirchliche Trauung_ (Rostock, 1880); Moy, _Eherecht der
Christen_ (Regensburg, 1833), had already taken the same view;
Scheurl holds a medial position in "Consensus facit nuptias,"
_ZKR._, XXII, 269-86 (Freiburg, 1889); which paper was preceded
by his _Entwicklung des kirchlichen Eheschliessungsrechts_
(Erlangen, 1877), and the "Zur Geschichte des kirch.
Eheschliessungsrechts," _ZKR._, XV (Freiburg and Tübingen,
1880). The last-named article is criticised by Bierling, "Kleine
Beiträge," _ibid._, XVI, 288-316 (1881). In this connection
read also Hasse, _Das Güterrecht der Ehegattin_ (Berlin,
1824), who anticipates Sohm on the nature of the Roman nuptial
celebration; Cremer, _Die kirchliche Trauung_ (Berlin, 1875);
_idem_, "Bürgerliche Eheschliessung und kirchliche Trauung,"
in _Evangel. Kirchenzeitung_ (1876), Nos. 32-35; Lindner, "Die
Heiligung der Ehe und die Trauung," _ibid._, Nos. 18-23; Buchka,
"Die Bedeutung der kirch. Trauung," _ZKR._, XVII (Freiburg and
Tübingen, 1882); Kahl, "Civilehe und kirch. Gewissen," _ibid._,
XVIII, 295-367 (1883); Freisen, _Geschichte des canonischen
Eherechts_ (Tübingen, 1888).
Friedberg's _Eheschliessung_, supplemented by the _Zur
Geschichte der Eheschliessung_, the _Lehrbuch des katholischen
und evangelischen Kirchenrechts_ (2d ed. Leipzig, 1884), and
the _Geschichte der Civilehe_ (Berlin, 1877), is a mine of
information at every point; and his conclusions as to the
validity of clandestine contracts _de praesenti_ have been
accepted by Pollock and Maitland in their _History of English
Law_ (Cambridge, 1895). Makower's _Constitutional History and
Constitution of the Church of England_ (London, 1895) is by far
the best work on his subject, the extracts from the sources
and the full bibliographical apparatus being of the greatest
assistance to the investigator.
In spite of its notorious inaccuracy, Bingham's _Origines
ecclesiasticae_ (London, n. d.) is still of service.
Conservative discussions may also be found in Göschl,
_Darstellung der kirch.-christ. Ehegesetze_ (Aschaffenburg,
1832); Hildebrand, _De nuptiis veterum christianorum_
(Helmstadt, 1701); Moy, _Eherecht der Christen_ mentioned above;
and Phillips, _Lehrbuch des Kirchenrechts_ (3d ed., Regensburg,
1881). Zhishman's _Das Eherecht der orientalischen Kirche_
(Vienna, 1864) is the standard treatise on the subject.
In general, besides the works of Beauchet, Loening, Spirgatis,
Méril, Lingard, Schmid, Thorpe, Liebermann, and others
already mentioned in Bibliographical Note VI, some useful
matter for the present chapter may be found in Parker, _De
antiquitate britannicae ecclesiae_ (London, 1729); Klein,
_Das Eheverlöbniss_ (Strassburg, 1881); Riedler, _Bedingte
Eheschliessung_ (Kempten, 1892); Freisen, _Geschichte des
canonischen Eherechts_ (Tübingen, 1888); _idem_, in _Archiv für
katholisches Kirchenrecht_, LIII, 369 ff.]
I. THE PRIMITIVE CHRISTIAN BENEDICTION, THE BRIDE-MASS, AND THE
CELEBRATION _AD OSTIUM ECCLESIAE_
It is a noteworthy fact that the early church accepted and
sanctioned the existing temporal forms of marriage. Her energy was
directed mainly to the task of enforcing her own rules relating to
marriage disabilities, such as those arising in affinity or nearness
of kin; to devising restraints upon the freedom of divorce and
second marriage; and to administering matrimonial judicature.[937]
But the existing legal character and the popular forms of betrothal
and nuptials were not disturbed. During the period preceding the
Teutonic invasion, speaking broadly, the church adhered to the
Roman law and custom; thereafter those of the Germans, even when
the marriage consisted in the formal sale and tradition of the
bride, were accepted.[938] The betrothal of the early canon law is,
therefore, the Roman betrothal. It is a _consensus sponsalitius_,
or free agreement between the man and the woman. Legally it is a
_pactum de contrahendo_, or promise for future joining in marriage,
which may be dissolved at the pleasure of either party.[939] It
creates no obligation which can give rise to action for damage or
fulfilment.[940] It does not constitute even the initiation of
marriage. The marriage begins with the nuptials or actual wedded
life, which gives expression to the _consensus nuptialis_, or mutual
will of the parties to be husband and wife;[941] though, doubtless,
the church demands parental consent, without making it absolutely
essential.[942] On the other hand, it has been demonstrated by Sohm,
contrary to the view previously accepted, that the two betrothals
of the mediæval canon law are based on the German betrothal.[943] If
not the marriage itself, it is nevertheless, as already seen, an act
for joining in marriage which is not easily dissolved.
[937] LINGARD, _Hist. of Anglo-Saxon Church_, II,
5-7; FRIEDBERG, _Eheschliessung_, 7; SOHM,
_Eheschliessung_, 107, and chap. iv; SCHEURL, _Das
gemeine deutsche Eherecht_, 14, 15.
[938] SOHM, _op. cit._, 108 ff. That the church
adopted the Roman marriage forms is the generally accepted
view: see SEHLING, _Unterscheidung der Verlöbnisse_,
24 ff.; SCHUBERT, _Die evangel. Trauung_, 4 ff.;
SCHEURL, _Entwicklung des kirch. Eheschliessungsrechts_,
8 ff.; _idem_, "Consensus facit nuptias," _ZKR._, XXII,
269 ff.; BIENER, "Beiträge," _ibid._, XX, 119,
120; RICHTER-DOVE-KAHL, _Lehrbuch_, 1029, 1030;
LOENING, _Gesch. des deutsch. Kirchenrechts_, II,
569 ff.; DIECKHOFF, _Kirchliche Trauung_, 12 ff.;
MOY, _Eherecht der Christen_, 94 ff., 215 ff., 372 ff.
On the other hand, FREISEN, in _Archiv für kath.
Kirchenrecht_, LIII, 369 ff., holds that the early Christians
followed mainly Jewish custom. _Cf. idem_, _Geschichte des
canon. Eherechts_, 120 ff.
[939] _Dig._, xxiii, tit. i, 1: "Sponsalia sunt mentio et
repromissio nuptiarum futurarum."--_Corpus juris civ._, I, 294.
_Cf._ SOHM, _Eheschliessung_, 109, 110; KLEIN,
_Das Eheverlöbniss_, 122 ff.
[940] By the older Roman law the betrothal was in form a contract
by _stipulatio_, and there was an action for damage in case
of nonfulfilment: GELLIUS, _Noctes atticae_, iv, 4;
SMITH, _Dict. of Greek and Roman Antiquities_, II,
139, 140. The later law gave no such action: _Dig._, xxiii,
tit. i, 10: _Corpus juris civ._, I, 291; _Codex_, V, 5; though
to enter into two betrothals at once was held to constitute
_infamia_, the same as two marriages: _Dig._, iii, tit. ii, 1:
_Corpus juris civ._, I, 36. _Cf._ LUDLOW, in _Dict.
Christ. Antiq._, I, 203; KLEIN, _Das Eheverlöbniss_,
22 ff., 125, 126; RIEDLER, _Bedingte Eheschliessung_,
11, 12; SCHEURL, _Entwicklung_, 9-11; LOENING,
_Geschichte des deutsch. Kirchenrechts_, II, 569, 570, who
shows that after the third century the betrothal became more
important in Roman law; SEHLING, _Unterscheidung_, 20,
21, notes; REIN, _Das röm. Privatrecht_, 188, 189;
BRISSONIUS, _De ritu nuptiarum_ (Paris, 1654), 1 ff.;
BEAUCHET, _Étude_, 11 ff.; SCHUBERT, _Die
evangel. Trauung_, 11, notes.
[941] But SOHM, _Eheschliessung_, 110, who was preceded
by GLÜCK, _Güterrecht_, 1, 97 ff., contends, against the
common interpretation of the maxim _consensus facit nuptias_,
that a merely "formless" _consensus_ not followed by actual
wedded life is not sufficient to constitute a Roman marriage.
That would be practically a _consensus sponsalitius_ or Roman
betrothal. On the other hand, SEHLING, _Unterscheidung
der Verlöbnisse_, 7 ff., 138 ff., 157 ff., insists that by
the Roman law a formless nuptial contract, whether followed
by cohabitation or not, constitutes a binding marriage. Such
also is the view of DIECKHOFF, _Kirch. Trauung_, 15;
SCHUBERT, _Die evangel. Trauung_, 4 ff., 11; and
SCHEURL, _Entwicklung_, 11. But SCHEURL,
"Consensus facit nuptias," _ZKR._, XXII, 269 ff., agrees with
Sohm, in effect, though not avowedly. For, while he says that
marriage by _confarreatio_, for example, would be a valid
marriage, even if the parties never lived together, yet the Roman
law, he points out, does not reveal the evils of clandestine
unions, because the formless nuptial promise implied the common
wedded life. _Cf._ also BIERLING, "Kleine Beiträge,"
_ZKR._, XVI, 288 ff., who criticises Scheurl; FREISEN,
_Geschichte des can. Eherechts_, 101 ff.; and REIN, _Das
röm. Privatrecht_ (1836), 188, 189.
[942] "For even on earth children do not rightfully and lawfully
wed without their father's consent."--TERTULLIAN,
_To His Wife_, Book II, c. viii: _Ante-Nicene Fathers_, IV,
48. According to ULPIAN, in _Dig._, 1, tit. xvii,
1. 30, "Nuptias non concubitus, sed consensus facit." But
PAULUS, _ibid._, xxiii, tit. ii, 1. 2, shows that the
consensus "must be at once that of the parties themselves, and of
those in whose potestas they are." See the excellent article of
LUDLOW, in _Dict. Christ. Antiq._, I, 433-36.
[943] SOHM, _Eheschliessung_, 107-52; _idem_,
_Trauung und Verlobung_, 58-109. In opposition to Sohm's view,
SEHLING, _Unterscheidung der Verlöbnisse_, 138 ff.,
165 ff., contends that the _sponsalia_ (betrothal and nuptial
promises) of the mediæval canon law are derived from the law of
Rome. Such also is the position of ZOEPFL, _Deutsche
Rechtsgeschichte_ (4th ed.), III, §§ 81 ff.; SCHULTE,
_Handbuch des kath. Eherechts_ (1855), 37, 278; WALTER,
_Kirchenrecht_ (14th ed.), § 298; and LOENING, _Gesch.
des deutsch. Kirchenrechts_, II, 601, following Sohm in the main.
SCHUBERT, _Die evangel. Trauung_, 37, takes a medial
position: "die Kirche bildete ihr eigenes Recht in Anlehnung an
das deutsche Recht aus." SCHEURL, _Entwicklung_, 93,
94, 95 ff., _passim_; _idem_, _Das gemeine deutsche Eherecht_,
14, 15, reviews and criticises Sohm on various points.
FRIEDBERG, _Verlobung und Trauung_, 25, contrary to the
position taken in _Eheschliessung_, 6, 202, accepts Sohm's view,
but with reservations. See also his _Lehrbuch_, 339 ff.
The only innovation effected by the primitive church was of a purely
religious character. Though she might content herself with the
Roman or the Germanic forms of marriage, there remained an "ethical
mission" peculiarly her own. "In order at the very outset to fill
the wedded life with the blessing and spirit of the Christian life,
the church, without reference to the matrimonial law in force,
demanded of her members that the very beginning of marriage should
be placed under the word of God and be hallowed by its power."[944]
Hence, from the first century onward, we find evidence of a priestly
benediction usually in connection with the betrothal and probably
with the nuptials.[945] Thus Ignatius declares that it "becomes
both men and women who marry, to form their union with the approval
of the bishop," that it may be according to God.[946] Tertullian
speaks of marriage being "requested" of bishops, presbyters,
or deacons;[947] and he shows in another place that publicity
was an important motive for encouraging unions "in presence of
the church."[948] In a somewhat obscure passage of the treatise
addressed to his wife, which is much relied upon by sacerdotal
writers, he exclaims: "How should we be sufficient to set forth
the bliss of that marriage which the church brings about, and the
oblation confirms, and the benediction seals, angels proclaim,
the Father ratifies?"[949] But here a legal importance is given
to the benediction which it does not seem to have gained until
centuries later.[950] A similar doubt attaches to the words of
Ambrose, who, writing against mixed marriages, says: "For since
marriage itself should be sanctified by the priestly veil and by
benediction, how can that be called a marriage where there is no
agreement of faith?"[951] But, "as Selden has observed, the like
benedictions were often claimed in behalf of many other kinds of
contract besides that of marriage--a sale, for instance."[952] In
the eastern church likewise the letters of Gregory Nazienzen and
the silence of Chrysostom show that the benediction was without
legal significance.[953] By the Roman law no betrothal or nuptial
ceremonial is prescribed. The solemnities were determined by local
custom; and these the early Christians were willing to accept.
For centuries a marriage liturgy was not adopted either in the
East or in the West.[954] According to Tertullian, no "breath of
idolatry" attaches even to the heathen ceremonies connected with
espousals,[955] among which he mentions the ring, the kiss, the
veil, and the joining of hands.[956] The ring came more and more
under German influence to be used as an _arrha_.[957] Witnesses were
required; and in connection with the nuptials we hear also of the
"pomp" or procession to the bridegroom's home, and the "crowning" of
the bride or the wedded pair, usually with flowers.[958]
[944] SOHM, _Eheschliessung_, 107, 108. _Cf. idem_, _Ob.
Civilehe_, 25; and SCHUBERT, _Die evangel. Trauung_,
5 ff., who agrees with Sohm. The conservative view of the
religious character of early Christian marriage is represented by
KLEIN, _Eheverlöbniss_, 95 ff.; DIECKHOFF, _Die
kirch. Trauung_, 20 ff., _passim_.
[945] The custom of benediction may have been influenced
by Jewish practice. The Hebrew benediction was given "not
necessarily by a priest, but by the eldest friend or relative
present": MEYRICK, in _Dict. Christ. Antiq._, II,
1107, who gives the benediction in abridged form. _Cf._
SELDEN, _Uxor ebraica_, II, 12.
On the teachings of the Christian fathers as to the form of
marriage see MARTENE, _De ritibus_, II, lib. I, c.
ix, 120-44; SELDEN, _Uxor ebraica_, 179-84, 665-69,
_passim_; SCHUBERT, _Die evangel. Trauung_, 4 ff.;
LOENING, _Gesch. des deutsch. Kirchenrechts_, II,
573 ff.; DIECKHOFF, _Die kirch. Trauung_, 20 ff.;
FRIEDBERG, _Lehrbuch_, 337 ff.; PHILLIPS,
_Lehrbuch_, 612 ff.; BIENER, "Beiträge," _ZKR._, XX,
119-27.
[946] IGNATIUS, _Epistle to Polycarp_, IV: _Ante-Nicene
Fathers_, I, 95.
[947] TERTULLIAN, _On Monogamy_, xi: _Ante-Nicene
Fathers_, IV, 67.
[948] TERTULLIAN, _On Modesty_, v: _Ante-Nicene
Fathers_, IV, 77. _Cf._ MEYRICK, art. "Marriage," in
_Dict. Christ. Antiq._, II, 1106, who thinks, aside from the
religious motive, members might thus avoid the violation of laws
of the state with which they were unacquainted.
[949] LUDLOW, on "Benediction," in _Dict. Christ.
Antiq._, I, 193; _cf._ the reading in _Ante-Nicene Fathers_, IV,
48.
[950] LUDLOW, _loc. cit._
[951] AMBROSE, Book IX, ep. 70; LUDLOW, _loc.
cit._
[952] LUDLOW, _ibid._; SELDEN, _Uxor ebraica_,
Lib. II, cc. xxiv, xxv.
[953] LUDLOW, _op. cit._, I, 194.
[954] In both East and West, between the sixth and seventh
centuries: LUDLOW, _ibid._
[955] TERTULLIAN, _On Idolatry_, xvi: _Ante-Nicene
Fathers_, III, 71. _Cf._ LUDLOW, on "Betrothal," _op.
cit._, I, 203.
[956] TERTULLIAN, _loc. cit._; _idem_, _On the Veiling
of Virgins_, xi: _Ante-Nicene Fathers_, III, 71; IV, 34. On
the ring see _Dict. Christ. Antiq._, I, 248, 249, 202; II,
1105, 1807, 1808; for the kiss see _ibid._, II, 905, 906. By
the Theodosian Code, lib. v, tit. 3, leg. 16, one-half of
the bridegroom's gifts, after his death, were delivered to
his betrothed in case the betrothal were sealed by a kiss;
otherwise all was given to his relatives: _ibid._, II, 1110. In
England, and elsewhere, the kiss was a characteristic of public
spousals; and when these were recognized by the church the kiss
was sanctified by the priest: JEAFFRESON, _Brides and
Bridals_, I, 65-67; BRAND, _Pop. Antiq._, II, 139-41.
_Cf._ also MÉRIL, _Des formes et des usages_, 37, 38;
SPIRGATIS, _Verlobung und Vermählung_, 16, 17. The veil
was originally used at the betrothal, from the time of which
ceremony onward in early days it was worn habitually by the
betrothed as well as by the married woman: MEYRICK, in
_Dict. Christ. Antiq._, II, 1108, 1109.
[957] LUDLOW, on "Arrhae," in _Dict. Christ. Antiq._, I,
142-44: MEYRICK, _ibid._, II, 1105.
[958] For the crowning in the eastern church see
ZHISHMAN, _Das Eherecht der orient. Kirche_, 135, 156,
692 ff.; _cf._ MARTENE, _De ritibus_, I, 125. The crown
was made of flowers, often of olive or myrtle, and sometimes of
silver or gold. The custom appears in the West, but it became
at length so important in the East that the "whole marriage was
called the crowning, as in the West it was called the veiling":
MEYRICK, in _Dict. Christ. Antiq._, II, 1108, 1109;
_cf. ibid._, I, 511. The pomp is, of course, the Greek _pompa_:
FUSTEL DE COULANGES, _Ancient City_ (Boston, 1896),
55 ff., corresponding to the Roman _traductio_ and the German
_Brautlauf_.
It seems probable, then, that during the first three or four
centuries Christian marriages were not as a rule celebrated in
church.[959] The betrothal or nuptial benediction was not essential
to a valid marriage, however important it may have been regarded
from a religious point of view.[960] Gradually it became an
established custom for the newly wedded pair, after solemnization
of the nuptials, to attend religious services in the church and
partake of the sacrament, at the close of which the priest invoked
a blessing upon the future married life. But at first the church
service was the ordinary service; only after a considerable interval
were phrases introduced into the prayers especially applicable to
the wedded pair.[961]
[959] Pope Nicholas (A. D. 860), in his replies to the
Bulgarians, who had asked his counsel concerning marriage rites,
says concerning the nuptials: "First of all they are placed in
the church with oblations, which they have to make to God by the
hands of the priest, and so at last they receive the benediction
and the heavenly veil." On this letter see SELDEN,
_Uxor ebraica_, Lib. II, c. xxv, 179; MARTENE, _De
ritibus_, I, 124, 125; DIECKHOFF, _Die kirch. Trauung_,
47 ff.; BEAUCHET, _Étude_, 34. From this letter and the
statements of the Fathers concerning the benediction, already
mentioned, MEYRICK, in _Dict. Christ. Antiq._, II,
1106, 1107, concludes, "There is no reasonable doubt that the
place in which Christians were ordinarily married was a church,
so soon as it became safe and customary for them to meet in
churches for religious purposes, and that the way in which they
were ordinarily married was by a religious ceremony," though
especially in the East (CHRYSOSTOM, _Hom. xlviii, in
Gen._, c. 24) the religious ceremony often took place in houses.
But so far as western Christendom is concerned, the sources show
that marriage in church was of slow growth. JEAFFRESON,
_Brides and Bridals_, I, 48, 49, doubts whether the Anglo-Saxons
always celebrated marriage in their homes.
[960] SOHM, _Eheschliessung_, 153 ff., insists that the
priestly benediction, unless here and there by local custom,
was connected with the nuptials (_Trauung_) and not with the
betrothal, which he regards as the essential element in marriage.
But DIECKHOFF, _Die kirch. Trauung_, 20 ff., 30 ff.,
47 ff., 65 ff., claims that from the earliest period among
the Christians it was customary for the priest to bless the
betrothal; and that at least from the fourth century the same
is true of the nuptials. In his _Zur Trauungsfrage_, 17, note,
SOHM seems to accept Dieckhoff's view, while denying
anything but religious meaning to the benediction in either case.
SIRICIUS, _Epist. ad Himer._, § 4, mentions a
"benediction of the priest at betrothal, of so solemn a nature
as to make it sacrilege in the betrothed woman to marry another
man;" but this epistle may be spurious: MEYRICK, in
_Dict. Christ. Antiq._, II, 1106. _Cf._ SCHEURL,
_Entwicklung_, 24, 25; SEHLING, _Unterscheidung_, 25,
notes, 110; LOENING, _op. cit._, II, 573; and, for the
eastern church, ZHISHMAN, _Das Eherecht der orient.
Kirche_, 126, 135, 156, 672, 289 ff., _passim_.
[961] SOHM, _Eheschliessung_, 157. This stage of the
bride-mass is disclosed by the oldest _sacramentaria_, of about
the fifth century; and the same ritual was in use in the Frankish
church in the ninth century.
Thus stood the custom in the period immediately following the
conversion of the Teutonic nations. The nuptials consisted of two
distinct acts. The first was the _gifta_, or traditional ceremony in
the usual form. Thereafter, often on the day following the bridal
night,[962] the newly wedded couple celebrated the bride-mass
(_Brautmesse_) and received the benediction of the priest. But this
religious act had no legal significance. No doubt it was performed
by all good Christians as a religious duty. The benediction was
invoked on the married life, a fact of such immense ethical
importance, just as it was invoked on all important undertakings. It
was observed as a fitting solemnity for a believer and not as a part
of the marriage. Therefore in the case of second marriages it was
omitted.[963] Broadly stated, the canon law maintained the validity
of all proper marriages solemnized without the priestly benediction,
though spiritual punishment might be imposed for neglect of
religious duty. Such is the view of Sohm, and it has been generally
accepted.[964] Dieckhoff,[965] however, contests it at every point.
He holds that from early days the priestly benediction, whether of
betrothal or of nuptials, was an essential part of the Christian
marriage celebration. In support of the theory, that originally the
church really undertook to join persons in wedlock, he presents
three services from Roman _sacramentaria_ of the age of Charles the
Great.[966] But it is by no means certain that the words of the text
relied upon for proof are not of too recent origin to be convincing
as to early usage; and if they really belong to the time assigned,
they cannot, in face of other evidence, be accepted as showing
the general custom of the West, but rather, like the often-cited
Capitulary,[967] of 802, as merely revealing the aim and desire of
the church.
[962] FRIEDBERG, _Eheschliessung_, 78-93, where numerous
proofs from the mediæval poets and other sources are given; but
sometimes marriage in church appears. _Cf._ SOHM, _op.
cit._, 159 n. 16.
[963] In all the early rituals the benediction is not allowed
in case of a second marriage, at any rate unless the first
marriage of one or both of the parties had not been blessed by
the priest; and long paragraphs of the service are devoted to
explaining the alleged reasons for this, and to the still harder
task of showing how a second marriage can be a sacrament and yet
less holy than a first marriage. This dilemma led to curious
compromises, as in the service used at the marriage of King
Ethelwulf with Judith, his father's widow, in the year 856; see
the service in PERTZ, _Monumenta, leg._, I, 420; and
DIECKHOFF, _Die kirch. Trauung_, 73, 74. On this topic
compare the York, Sarum, and Hereford rituals in Surtees Society
_Publications_, LXIII, 35-37, Appendix, 23, 24, 117, 118; and
the Sarum (Salisbury) ritual in MASKELL, _Monumenta
ritualia_, I, 71-74; also _Rituale romanum Pauli Quinti_,
198; MARTENE, _De ritibus_, II, 121, 122; _Excerp.
Ecgberti_, 91: in Thorpe, II, 110; AELFRIC'S _Canons_,
9; _ibid._, II, 347; FRIEDBERG, _Eheschliessung_, 36;
SCHMID, _Gesetze_, 562; BOHN, _Pol. Cyc._, III,
319. SELDEN, _Uxor ebraica_, II, c. 30, maintains that
the practice of celebrating nuptials before a priest was not
general among primitive Christians. This is declared an error by
BINGHAM, _Origines_, VII, 328 ff., who, like Dieckhoff
and most ecclesiastical writers, holds that the custom was
general and obligatory.
[964] SOHM, _Eheschliessung_, 107 ff., 153 ff.;
_idem_, _Zur Trauungsfrage_, 10 ff.; _idem_, _Obligat.
Civilehe_, 25 ff. In substantial agreement with Sohm are
LOENING, _Gesch. des deutsch. Kirchenrechts_, II,
569-606: FRIEDBERG, "Zur Geschichte," _ZKR._, I,
374 ff.; BIENER, "Beiträge," _ibid._, XX, 119-47;
SCHEURL, _Entwicklung_, 110 ff. _Cf._ BEAUCHET,
_Étude_, 30 ff.; SPIRGATIS, _Verlobung und Trauung_,
4 ff.; SCHUBERT, _Die evangel. Trauung_, 14 ff.;
KLIEFOTH, _Liturgische Abhandlungen_ (2d ed., 1869), I,
136 ff.
[965] DIECKHOFF, _Die kirch. Trauung_, 29 ff., 45, 46
ff., 65 ff.; _idem_, _Civilehe und kirch. Trauung_, 14 ff. Much
earlier, MOY, _Eherecht der Christen_, 216, 217, had
taken the same view.
[966] DIECKHOFF, _Die kirch. Trauung_, 35 ff.:
_sacramentaria_ of Popes Leo, Gelasius, and Gregory I. These,
he thinks, show not merely a "divine benediction of the
marriage already concluded, but essentially a divine joining in
marriage." These services are also contained in DANIEL,
_Codex liturgicus_, I, 257 ff.; and that of Gelasius in
MARTENE, _De ritibus_, II, 127.
[967] Charles the Great in the Capitulary of 802, c. 35,
WALTER, _Corpus juris germ._, II, 167, prescribes the
benediction of the nuptials by a priest; but this is thought
to have had little effect. The benediction is also required by
several false capitularies: FRIEDBERG, _Eheschliessung_,
58, 59. On this decree of 802 see also SCHUBERT, _Die
evangel. Trauung_, 19; BEAUCHET, _Étude_, 30, 31.
The introduction of the bride-mass constitutes the second stage
in the history of clerical marriage. In English history it is
represented by several spousal services which have been published
by the Surtees Society.[968] They cover the period from the
eighth to the eleventh century, beginning with the Pontifical of
Egbert, archbishop of York (732-66) and ending with the _Rede
Boke_ of Darbye (_ca._ 1050), now in the library of Corpus Christi
College, Cambridge. These services consist wholly of prayers and
benedictions. There is no mention of the mass, though doubtless the
husband and wife have already partaken of the communion before the
service. Apparently the function of the priest is purely religious.
It is merely an invocation of the divine blessing upon the life of
the newly wedded pair, and has no legal significance. The nuptials
have already been solemnized, whether in the presence of the priest
or not the formularies do not explain.
[968] Surtees Society _Publications_, LXIII, Appendix, 157 ff.
In the _Ordo_ of Archbishop Egbert, for instance, a blessing is
invoked upon the parties, the bridal chamber, and the marriage
bed; and the other _Ordines_ there printed are of the same
general character.
But already in the tenth century we reach the beginning of a third
stage in the rise of the ecclesiastical ceremony.[969] The nuptials
still consist of two distinct acts. The first is the _gifta_
proper, according to the usual temporal forms. It is no longer a
strictly private transaction,[970] but it takes place before the
church door--_ante ostium ecclesiae_[971]--in the presence of
the priest, who participates in the ceremony and closes it with
his blessing. The second act consists in the entrance into the
church and the celebration of the bride-mass, followed by a second
benediction. But the _gifta_, even in this stage, is temporal and
not ecclesiastical. It occurs "before and not within the church,"
the motive usually assigned being to induce an immediate attendance
upon communion on the very day of the nuptials instead of after
an interval. In reality, however, the custom is but a recognition
of the temporal nature of wedlock, which ought therefore to be
celebrated before and not within the consecrated building.[972]
That such was the prevailing custom throughout the western church
during the Middle Ages is established by a mass of evidence of the
most convincing character. Besides the testimony of chroniclers,
historians, and literary men, we have that of the law-books and
legal writers, lay and ecclesiastical, which make frequent mention
of the assignment of the wife's dower at the church door during the
nuptial celebration.[973] Moreover, many of the ancient rituals
themselves have been preserved. All these "are unanimous," says Léon
Gautier, following Martene, "in placing the principal act of the
marriage celebration, that is to say the consent of the parties,
at the entrance or in the porch of the church;"[974] and what is
thus affirmed for the rituals of France is equally true for those
of Germany[975] and England. "In the first place," runs the opening
rubric of the Sarum _Ordo ad faciendum sponsalia_, "let the man
and the woman stand before the church door in the presence of God,
the priest, and the people, the man on the right of the woman, and
the woman on the left of the man." Here the bride and groom remain
during the nuptial celebration, the assignment of the dower, and the
closing benediction. Thereupon, as the rubric directs, "let them
enter the church as far as the steps of the altar," where, after a
psalm, they are to prostrate themselves while a prayer is said in
their behalf.[976] The usage of Sarum in this regard is typical,
differing only in words and arrangement from that of York, Hereford,
or the other churches. Indeed, marriage continues to be celebrated
at the church door until the sixteenth century, the liturgies of
Edward VI. and Elizabeth first requiring as a general observance the
ceremony to be performed in the body of the church.[977]
[969] It need not surprise us that these phases of evolution
chronologically overlap each other; for social development is
seldom uniform.
[970] _Haustrauung_: SOHM, _Eheschliessung_, 158.
[971] Also _ad valvas ecclesiae, in facie ecclesiae, in conspectu
ecclesiae, ad fores ecclesiae_, etc.
[972] "By performing the civil rite outside the walls of the
church they declared the fundamental nature of the matrimonial
contract, and asserted the doctrine of the common law of the
land respecting its meaning and purpose."--JEAFFRESON,
_Brides and Bridals_, I, 53. This view is of course rejected by
DIECKHOFF, _Die kirch. Trauung_, 76, note, 79 ff., who
regards the ecclesiastical transaction as a real ecclesiastical
celebration necessary to the marriage in the eyes of the church.
_Cf._ BIERLING, "Kleine Beiträge," _ZKR._, XVI, 288
ff., who criticises DIECKHOFF (_Civilehe und kirch.
Trauung_), and agrees with SOHM (_Zur Trauungsfrage_,
10) that the ecclesiastical transaction must not be confused with
ecclesiastical marriage.
[973] GLANVILLE, _Tractatus_, lib. vi, c. 1:
PHILLIPS, II, 381. "The term dower is used in two
senses. Dower in the sense in which it is commonly used means
that which any free man at the time of his being affianced
(tempore desponsationis) gives to his bride at the church
door": GLANVILLE, vi, c. 1, as translated by JOHN
BEAMES (London, 1812). _Cf._ also SELDEN, _Fleta_,
lib. v, c. 23, pp. 340, 341; BRACTON, _De legibus_,
lib. ii, c. 39 (fol. 92), Vol. II, 48; HORNE, _The
Mirror of Justices_ (ed. WHITTAKER, London, 1895), 11;
FITZHERBERT, _New Natura Brevium_ (Dublin, 1793), 352
(150); HENGHAM, _Summa parva_, c. ii: "Brevia de dote ad
ostium ecclesiae;" SELDEN, _Uxor ebraica_, 198, or in
_Opera_, III, 680.
That the _gifta_, or celebration as a temporal act, should take
place before the church door is thoroughly in harmony with the
early view that there purification or preparation should be made
for the rites or service within the sanctuary. The _atrium_
sometimes seems to be regarded as the medial ground between
the world on the one hand and the sacred temple of God on the
other; see, for example, _Old Eng. Homilies_, I, 72, 73: children
are to be baptized in holy church, "and their godfathers and
godmothers are to answer for them at the church-door, and enter
into pledges (covenants) at the font-stone, that they should
be believing (faithful) men." This passage is referred to in
MÄTZNER, _Altenglisch. Sprachproben_ (Berlin, 1878),
II, 578, at "chirchedure." GREGORY, in his _Pastoral
Care_, 104, 105, referring to the brazen basins before the Temple
supported by twelve oxen, says the bishops when they "descend
to wash the sins of their neighbors, when they confess, they
support, as it were, the basin before the church-door." According
to the _Capitula et fragmenta Theodori_, THORPE,
_Ancient Laws_ (folio), 313, "Si in atrio ecclesiae quislibet
injuriaverit aliquem presbyterum, vel ibidem aliquod sacrilegium
perpetraverit, altari et Domino componatur." With this
compare ÆTHELRED, _Laws_, VII, 13: THORPE,
_Ancient Laws_ (folio), 142; GRIMM, _Wörterbuch_,
_s. v._ "Kirchthor;" MURRAY, _New Eng. Dict._, Part
V, 406, at "church-door;" _Ormulum_, I, 43, ll. 1326, 1327;
CHAUCER, _Prolog._, 460: "Housbondes at chirche dore she
hadde fyve." See also WARNKÖNIG AND STEIN, _Französische
Verfassungsgeschichte_, II, 257; WEINHOLD, _Deutsche
Frauen_, I, 377, 378; WHITGIFT, _Works_, II, 461-64;
BRAND, _Pop. Ant._, II, 133-35; JEAFFRESON,
_Brides and Bridals_, I, 46-59; SPIRGATIS, _Verlobung
und Trauung_, 20, 21; SCHUBERT, _Die evangel. Trauung_,
20.
[974] LÉON GAUTIER, _La chevalerie_, 424 n. 3: _ap._
MARTENE, _De ritibus_, who says: "Nuptiae communiter
solent celebrari _ad valvas ecclesiae_;" and places before us
abundant proof in the sixteen _ordines_ which he publishes,
_ibid._, II, 127-44. Gautier cites also ÉTIENNE DE
BOURBON, ed. of LECOY DE LA MARCHE, 366: "Cum
duceretur ... ad parrochiam ... _et esset sub porticu ecclesiae
ut sponsa sua ei consentiret_ et matrimonium ratificaretur per
verba de praesenti, ut moris est, et sic in ecclesia matrimonium
solempnizaretur in misse celebratione et aliis." The same writer
makes a thorough examination of the "Pontifical ou rituel de
lire" (published by MARTENE, II, coll. 356-59, who
assigns it to the twelfth century), comparing it with other
rituals, with illustrations and proofs from many sources. In
chaps. ix to xi inclusive, entitled "Le mariage du chevalier"
(_op. cit._, 341-450), Gautier gives a learned and most
interesting discussion of mediæval marriage rites and customs.
Compare DANIEL, _Codex liturgicus_; and the summaries in
PALMER, _Origines liturgicae_, I, 106 ff.
[975] See SOHM, _Eheschliessung_, 153-63; and
FRIEDBERG, _Eheschliessung_, 37, 38, who reach
this conclusion from an examination of the various English
and continental rituals; especially the ritual of Rennes,
_ca._ eleventh century, in MARTENE, II, 127; also
SOHM, _op. cit._, 159, 160; DIECKHOFF, _Die
kirch. Trauung_, 77, 78.
[976] "Manual ad usum Sarum," in Surtees Society _Publications_,
LXIII, Appendix, 17-20; also in MASKELL, _Monumenta
ritualia_, I, 50-77. Compare the rituals of York, Hereford, and
the others contained in Surtees Society _Publications_, LXIII,
24 ff., 115 ff., 160 ff.; also the "Rituel de lire" in LÉON
GAUTIER, _La chevalerie_, 424-31, as summarized in capitals
in the margin; and the ritual of Rennes in MARTENE, _De
ritibus_, II, 127; or in SOHM, _Eheschliessung_, 159,
160: "In primis veniat sacerdos ante ostium ecclesiae indutus
alba atque stola cum benedicta aqua; qua aspersa, interroget eos
sapienter, utrum legaliter copulari velint, et quaerat quomodo
parentes non sint, et doceat quomodo simul in lege Domini vivere
debeant. Deinde _faciat parentes secuti mos est dare eam_, atque
sponsum dotalitium dividere, cunctisque audientibus legere,
ipsumque suae sponsae libenter dare.... Qua finita, _intrando in
ecclesiam, missam incipiat_," etc.
[977] _Liturgy of Edward VI._ (Parker Society), 127; _Liturgy
of Elizabeth_ (Parker Society), 217. Compare WHITGIFT,
_Defence of the Answer_, II, 462, where he defends the
requirement of the "book," that "persons to be married shall come
into the body of the church, with their friends and neighbours,
there to be married," against THOMAS CARTWRIGHT in his
_Reply to the Answer_, 105, sec. 2, who ridicules the prescribed
ceremonial. "Likewise for marriage," says Cartwright, "he (the
priest) cometh back again into the body of the church, and for
baptism unto the church-door: what comeliness, what decency, what
edifying in this? Decency (I say) in running and trudging from
place to place: edifying in standing in that place, and after
that sort, where he can worst be heard and understanded."
One of the very earliest references to the presence of the priest
at the nuptials is contained in the last two sections of the old
English ritual of the tenth century already quoted in part,[978] and
this ritual may be regarded as marking the transition to the period
under consideration.
[978] This is next to the oldest mention, after the Germanic
conquest, of the priestly benediction; the first is the marriage
of Judith to the Saxon king Æthelwulf, 856, elsewhere mentioned.
"8. At the nuptials there shall be a mass-priest by law; who shall
with God's blessing bind their union to all prosperity.
"9. Well is it also to be looked to, that it be known, that they,
through kinship, be not too nearly allied; lest that be afterwards
divided, which before was wrongly joined."[979]
[979] SCHMID, Anhang VI, 392, 393: THORPE, I,
255, 257.
It is evident, as Friedberg has remarked, that the office of
mass-priest in this ritual is of no legal significance. The
invocation of a divine blessing is merely a religious act after the
marriage is complete.[980] It is no more a part of the _gifta_ than
is the caution, in the last section, against marriage within the
degrees of relationship forbidden by the canons. It is plain that in
this formulary the betrothal and not the nuptials absorbs well-nigh
the whole attention of the lawgiver. It is manifestly the thing of
deepest concern; and in this the priest has no part.[981]
[980] FRIEDBERG, _Eheschliessung_, 35; compare
LINGARD, _History and Antiquities of the Anglo-Saxon
Church_, II, 7-11, who gives the form of benediction.
[981] SOHM, _Eheschliessung_, 100 n. 60. This view is of
course opposed by DIECKHOFF, _Die kirch. Trauung_, 69 ff.
According to Lingard, "there is no trace of any form of marriage
contract in ancient English sacramentaries previously to the close
of the twelfth century; and the earliest mention of it appears in
the constitutions of two English prelates, Richard Poere, bishop of
Sarum, and Richard de Marisco, bishop of Durham, who ordered the
parish priests to teach the bridegroom this form, 'I take thee N.
for my wife,' and the bride a similar form, 'I take thee N. for
my husband.'"[982] This statement, however, may now require some
modification. Judging from its brevity and its condensed, almost
crude, diction, the ritual published by the Surtees Society from
a pontifical in the library of Magdalen College, Oxford, may have
originated at an earlier date in the twelfth century;[983] and
this seems all the more probable, for French rituals, in which the
priest takes a leading part in directing the spousal contract, are
preserved from a still earlier period.[984] However this may be, the
rituals of Sarum, York, and Hereford are among the most ancient, the
most elaborate, and the most instructive which have anywhere been
preserved, those of Sarum and York having been in force from about
the end of the twelfth century until 1549. They contain a rich store
of material for the student of the marriage contract, carrying him
back to the cradle of the English race in the Saxon forests. Beneath
the ecclesiastical covering, the adventitious mass of prayers,
psalms, and benedictions, is a kernel of primitive Teutonic custom
which he will at once recognize.
[982] LINGARD, _op. cit._, II, 10, note; _ap._
WILKINS, _Conc._, I, 582.
[983] Surtees Society _Publications_, LXIII, Appendix, 160, 161.
See also the "Benedictio annuli, sponsi et sponsae" from the Ely
Pontifical, Cambridge University library, of the twelfth century,
_ibid._, 161, 162, in which the priest leads in blessing the
ring, assigning the dower, and directing the "giving" of the
woman. It is probably a part of a very early ritual.
[984] See the rituals of Rennes, _ca._ eleventh century, and _de
lire_, twelfth century, already referred to.
The York service may be taken as a type, for it does not differ in
any important particular from the other two. In it the advance of
the clergy is very marked. The priest directs or participates in the
whole procedure. The ceremony takes place before the church door,
as the rubric directs, the man standing "on the right of the woman
and the woman on the left of the man."[985] Then the priest is to
ask the banns in the mother-tongue, following the Latin formula
prescribed in the ritual, first addressing the people:
"Lo, bretheren, we are comen here before God and his angels and all
his halowes, in the face and presence of our moder holy Chyrche, for
to couple and to knyt these two bodyes togyder, that is to saye,
of this man and of this woman, that they be from this tyme forthe,
but one body and two soules in the fayth and lawe of God and holy
Chyrche, for to deserue everlastynge lyfe what someuer that they
have done here before."
[985] "Statuantur vir et mulier ante ostium ecclesiae coram
Deo et sacerdote et populo, vir a dextris mulieris et mulier a
sinistris viri": York manual, in Surtees Society _Publications_,
LXIII, 24. _Cf._ the Sarum, Hereford, and Welsh rituals,
_ibid._, Appendix, 17, 115, 167; also the Sarum ritual in
MASKELL, I, 50. All these place the man on the right
of the woman; but in "one MS. Manual of Sarum Use (early XVth
century)," the woman "stands on the _right_ hand of the man":
HENDERSON, in preface to Surtees Society _Publications_,
LXIII, xviii, xix.
"I charge you on Goddes behalfe and holy Chirche, that if there be
any of you that can say any thynge why these two may not lawfully be
wedded togyder at this tyme, say it nowe outher pryuely or appertly,
in helpynge of your soules and theirs bothe."
Secondly, addressing the man and the woman:
"Also I charge you both and eyther be your selfe, as ye wyll answer
before God at the day of dome, that yf there be thynge done pryuely
or openly, betwene yourselfe, or that ye knowe any lawfull lettyng
why that ye may nat be wedded togyder at thys tyme, say it nowe or
we do any more to this mater."[986]
[986] Compare the similar provisions, in more archaic words, in
the Salisbury manual in the British Museum: MASKELL,
_Monumenta ritualia_, I, 52-54, margin; and the Latin form there
given in the text.
If no objection to the marriage is made, the priest, in several
long paragraphs of the service, explains the canons relating to
publication of banns, the times when the ecclesiastical celebration
is forbidden, and the evils growing out of clandestine unions, with
the penalty of three years' suspension from office for the priest
who fails to prohibit such marriages in his parish. Then follows
the essential act, the celebration of the _sponsalia_. This, as
already mentioned, is in two distinct parts. The first part is
the repetition of the betrothal _per verba de futuro_, the priest
putting the vows in the form of a question to each party. He says to
the man:
"_N._, wylt thou haue this woman to thy wyfe and loue her [and
wirschipe hir[987]] and keep her, in sykenes and in helthe, and in
all other degrese be to her as a husbande sholde be to his wyfe, and
all other forsake for her, and holde the only to her to thy lyues
ende."
[987] The words in the brackets in the formulæ for both parties
are added in the Cambridge MS. of the York ritual.
The man is to answer: "I wyll." The priest then says to the woman:
"_N._, wylt thou haue this man to thy husbande, and to be buxum to
hym [luf hym, obeye to him, and wirschipe[988] hym], serue hym and
kepe hym in sykenes and in helthe: and in all other degrese be unto
him as a wyfe shulde be to her husbande, and all other to forsake
for hym, and holde the only to hym to thy lyues ende."
[988] It will be noted that in the Cambridge MS. both the
man and the woman promise to "worship." The same is true
of the manuscript Salisbury ritual in the British Museum:
MASKELL, _op. cit._, I, 53.
The woman is to say: "I wyll."
This closes the first part. The second part is the _gifta_, or
marriage properly so called, _per verba de praesenti_. The priest
says: "Who gyues me this wyfe?" "Then," runs the Latin rubric,
"shall the woman be given away by her father or by a friend; if a
maid, she shall have her hand bare; if a widow, she shall have it
covered."[989] The man shall receive her to keep in God's faith and
his own, as he has vowed before the priest; and holding her by the
right hand with his right hand, he shall plight the woman his troth
in words of the present tense, saying after the priest:
"Here I take thee _N._ to my wedded wyfe, to haue and to holde, at
bedde and at borde, for fayrer for fouler, for better for warse, in
sekeness and in hele, tyl dethe us departe, and thereto I plyght the
my trouthe;" and the woman makes the same vow in the same words.
[989] This provision is found in all these early rituals. _Cf._
LÉON GAUTIER, _La chevalerie_, 427, note.
"Then shall the man place gold, silver, and a ring upon a shield or
a book. And the priest shall enquire whether the ring has already
been blessed." If not, the priest is to bless it in prescribed form,
and sprinkle it with holy water. Then follows a curious ceremony.
The bridegroom "takes the ring with his three principal fingers, and
says after the priest, beginning with the thumb of the bride, '_In
nomine Patris_;' at the second finger, '_et Filii_;' at the third
finger, '_et Spiritus Sancti_;' at the fourth or middle finger,
'_Amen_;'[990] and there he leaves the ring, because according
to the Decree ... 'in the middle finger there is a certain vein
extending to the heart.'"[991]
[990] This formula is common to the early rituals. It is omitted
in the modern service of the English church, but retained in the
present Roman ritual: BINGHAM _The Christian Marriage
Ceremony_, 180.
[991] "Et ibi dimittat annulum secundum decretum xxx. quaestione
v. Feminae, ad finem: quia in medico est quaedam vena procedens
usque ad cor": p. 27. _Cf._ GRATIAN'S _Decretum_, in
RICHTER-FRIEDBERG, _Corpus jur. can._, I. The "vein
extending to the heart" is likewise mentioned in the rituals of
Hereford and Sarum, and in the Welsh ritual of the fifteenth
century. The Sarum ritual adds: "et in sonoritate argenti
designatur interna dilectio, quae semper inter eos debet esse
recens": Surtees Society _Publications_, LXIII, Appendix, 20.
After this delicious bit of popular superstition, handed down to our
own days from remote antiquity, the bridegroom, holding his bride by
the hand, says after the priest: "With this rynge I wedde the, and
with this golde and siluer I honoure the, and with this gyft I dowe
thee."
The priest next "asks the dower of the woman." If "land is given
her in the dower," the bride "prostrates herself at the feet of
the bridegroom;" but the York ritual does not go so far as one
manuscript of the Sarum manual, in requiring that the woman shall
"kiss the right foot" of her spouse.[992]
[992] Thus a "MS. Manual of Sarum Use" provides, "whether
there is land in the doury or not": "Tunc procidat sponsa ante
pedes ejus, et deosculetur pedem ejus dextrum; tunc erigat eam
sponsus": Surtees Society _Publications_, LXIII, 20, note; and
HENDERSON, _ibid._, xix. On the York and Sarum rituals
see SELDEN, _Uxor ebraica_, 193 ff.; and the points
discussed are all illustrated in the _Ordines_ published in
MARTENE.
The ceremony ends with prayer and benediction, followed by the
entrance into the church for celebration of the bridal mass.[993]
[993] This ritual also provides a form for the priestly blessing
of the bridal chamber (_benedictio thalami_) and the nuptial
couch: "Nocte vero sequenti cum sponsus et sponsa ad lectum
pervenerint, accedat Sacerdos et benedicat thalamum;" the
blessing concluding with the direction: "Tunc secundum morem
antiquum thurificentur torus et thalamus": 39, 40. Similar
forms are given in the Hereford, Sarum, and Bangor rituals:
Surtees Society _Publications_, LXIII, Appendix, 25, 26, 120;
MASKELL, I, 76, 77 n. 47.
The historical significance of the ritual just analyzed is
readily perceived.[994] In the ring, the gold, and the silver
there is a plain recognition of the _arrha_, though it was coming
to be regarded as a kind of symbolical assignment of the wife's
dower.[995] It is noticeable that the tradition is still conducted
by the "father or a friend." It is a private lay transaction in
which the priest has no legal part. He is still a mere orator,
rather than a necessary actor, though there is a manifest effort
to gain the recognition of the priestly office as essential to a
Christian marriage. Martene has pointed out that in all the early
rituals the words _vos conjungo_[996] are unknown. It is the
"parties who marry themselves." The matrimonial contract arises
solely in their consent.[997]
[994] For a good summary of the Sarum and other rituals see
FRIEDBERG, _Eheschliessung_, 36 ff.; and see the
ceremonies of 1502 and 1554, in the "Gentlemen's Magazine
Library," _Manners and Customs_, 57.
[995] Thus a manuscript manual of Salisbury use has this "curious
addition;" the priest says: "Loo this gold and this siluer is
leyd doun in signifyinge that the woman schal haue hure dower,
thi goodes, zif heo abide aftur thy disces": fol. 17; _ap._
MASKELL, _Monumenta ritualia_, I, 58 n. 14. LÉON
GAUTIER finds in the similar French custom a "reminiscence"
of the marriage _per solidum et denarium_ of the Salic law. "When
the bridegroom pronounces these words: '_De mon bien je vous
doue_,' he delicately places in the little purse of the bride
three pretty pieces of money, three new _deniers_. Not being able
to put into her hands the fields, woods, and manors constituting
the dower, he gives her its symbol. They went so far on account
of this usage as to coin special _deniers_, 'deniers pour
espouser'": _La chevalerie_, 428.
[996] "I pronounce that they be man and wife together, in the
name of the Father," etc.: Ritual of the English church, in
BINGHAM, _Christian Marriage Ceremony_, 166. "I join
you together in marriage," etc.: Roman ritual, _ibid._, 178. The
presence of similar phrases in all our modern ceremonies, civil
or religious, is a striking proof of the essential difference
between the function of the magistrate or priest now and that of
his mediæval predecessor.
[997] LÉON GAUTIER, _La chevalerie_, 426 n. 1; _ap._
MARTENE, _De ritibus_.
II. THE PRIEST SUPERSEDES THE CHOSEN GUARDIAN, AND _SPONSALIA PER
VERBA DE PRAESENTI_ ARE VALID
Thus it appears that between the first and twelfth centuries the
religious element in the marriage ceremony runs through three
phases, not sharply defined by dates, but overlapping and blending;
and for the sake of clearness it may be well to summarize the
history of this development before proceeding farther. (1) During
about four centuries no liturgy was prescribed; the ancient
popular forms of contract were accepted; the nuptials were usually
celebrated in the home of the bride, less often in church; and the
priestly benediction, though doubtless commended as a religious
duty, was not exacted by the church as essential to a legal or a
canonical marriage. (2) Between about the end of the fourth century
and the middle of the tenth the custom became well established for
the newly wedded pair to attend religious service in the church
to partake of the sacrament and receive the priestly benediction
on their future married life; and this practice soon led to the
institution of the regular bride-mass, containing phrases directly
applicable to the nuptials. In the bride-mass may be found the
genesis of the ecclesiastical marriage liturgy; but it is a purely
religious office and adds nothing to the validity of the private
contract. (3) In the next phase, falling between the tenth and the
twelfth centuries, the clergy makes rapid progress. An elaborate and
imposing ritual is developed; the priest, inheriting the functions
of the ancient orator, directs the entire celebration; the nuptial
ceremony takes place before the church door, and is followed by the
bridal mass in the church itself; but even now the priest is a mere
helper, and the religious service adds nothing to, nor its omission
takes nothing from, the validity of the nuptial contract.
The next and final step is comparatively easy and already assured.
By the beginning of the thirteenth century the western church
had entered upon a fourth phase in respect to the solemnization
of marriage. This was facilitated, according to Sohm,[998] by
the custom, already mentioned, of choosing any third person as
guardian to officiate at the nuptials, marking the transition from
the ancient tradition through the natural guardian to the stage
of self-_gifta_ or tradition by the bride herself--a stage which
is fairly being entered upon at the beginning of the thirteenth
century. This new and more liberal form of lay tradition led
directly to the _gifta_ by the priest, or to ecclesiastical marriage
properly so called.[999] In the third stage of development the
priest could not venture to interfere with the prerogative of the
natural guardian to give his ward in marriage. He could at most
assist as orator and bestow his benediction. But from the moment
that custom sanctioned the choice of any third person in place of
the father or other natural protector, the clergy appropriated
this function as their exclusive right. While the church "bestowed
her blessing upon the tradition through the natural guardian, she
directed against the lay chosen guardian her excommunication."[1000]
So at this point arose the antagonism between private and
ecclesiastical marriage.[1001] The motive of the church was clearly
twofold. While she very naturally strove to gain control of the
nuptial celebration, to give more and more a religious form to the
institution already declared by her to be a sacrament, she doubtless
foresaw something of the evils which would ensue from clandestine
or private unions, now that the consent of the parent or natural
guardian was no longer necessary, as in early days, for a valid
marriage, and therefore began to legislate in the interest of
publicity.
[998] SOHM, _Eheschliessung_, 164 ff., 67 ff.; _cf._
FRIEDBERG, _Eheschliessung_, 94 ff.
[999] SOHM, _op. cit._, 164.
[1000] _Ibid._, 164 ff., 179 ff.
[1001] The ecclesiastical act, _Handlung_, was old; the
ecclesiastical nuptials, _geistliche Trauung_, was new. This is
SOHM'S view, _op. cit._, 179 ff., 183, as opposed to
FRIEDBERG, _Eheschliessung_, 85.
Henceforth the rituals of the continent show plainly that marriage
was usually celebrated by the priest and not merely in his presence;
though the ceremony still takes place at the church door. The
parties no longer simply "marry themselves," repeating after the
priest the solemn words of the nuptial vow; but in addition the
priest "gives the woman to the man, saying in Latin words: I
join you in the name of the Father, the Son, and the Holy Ghost.
Amen;" and this formula, taken from a typical French ritual of the
fourteenth century,[1002] is never found, as already explained, in
the liturgies of the preceding period. It is highly important to
note that these words of power on the part of the priest do not
appear in the English service before the period of the Reformation.
In the earlier as well as in the later rituals the parties are the
real actors, although the priest is leader and teacher in the whole
ceremony. At most, so far as the form of tradition is concerned,
evidence of a mere transition[1003] from the third phase in the
rise of ecclesiastical marriage may be discerned. The priest does
not step quite into the place of the father or other relative. He
is not quite a "chosen guardian;" for he receives his power to
"give" the bride to the bridegroom from the natural guardian or his
representative, and not from the woman herself. Thus, according to
the ancient liturgy of York, the priest says, "who gyues me this
wyfe? Then the woman is given by her father or by a friend;"[1004]
and this transitional form in substance is still preserved in the
modern service of the English church.[1005] But, apparently, the
function of the priest in the _gifta_ is more pronounced in the York
manual than in any of the other mediæval rituals which have been
preserved. In some of them, as a matter of fact, it receives no
mention at all.[1006]
[1002] "Tunc sacerdos det eam viro dicens verbis latinis: Et
ego conjungo vos in nomine Patris et Filii et Spiritus Sancti.
Amen": quoted in SOHM, _op. cit._, 165, 166, from a
Rouen ritual of the fourteenth century in Martene's collection.
DIECKHOFF, _Die kirch. Trauung_, 82 ff., takes a
different view. The Rouen ritual, he holds, is not a typical
service. The priest does not now gain an essentially new function
at the nuptials. His office has always been necessary to a
Christian marriage. In addition to his original power of joining
in wedlock, he merely adds the function exercised by the father
or guardian in the formal tradition. Moreover, Dieckhoff's
position is supported by some rituals, which seem to show that
development on the continent was not uniform in this regard.
_Cf._ SCHEURL, _Entwicklung_, 110 ff., who discusses the
divergent views of Sohm and Friedberg.
The last stage of evolution has not yet been reached in the
eastern church. In the presence of the priest the bride and
groom betroth and give themselves in marriage. The priest merely
prays and blesses: SOHM, _Zur Trauungsfrage_, 19 ff.;
ZHISHMAN, _Das Eherecht_, 128, 135, 692 n. 1, 694 n. 1.
For the marriage ritual of the Greek church see MARTENE,
_De ritibus_, II, 140-44.
[1003] Pointed out by SOHM, _Eheschliessung_, 164, 165.
[1004] Surtees Society _Publications_, LXIII, 26.
[1005] "Who giveth this woman to be married to this man? Then
shall they give their troth to each other in this manner. The
minister receiving the woman at her father's or friend's hands,"
etc.: BINGHAM, _The Christian Marriage Ceremony_, 164.
[1006] Thus the Hereford ritual simply says, after declaration
of the dower, "et pater vel propinquus mulieris accipiat
eam, et tradat homini per manum dexteram" (Surtees Society
_Publications_, LXIII, Appendix, 116). Similarly the Pontifical
of Anianus, bishop of Bangor, of the thirteenth century declares,
"Primo dicatur (dos) feminae, deinde detur" (_ibid._, 162); and
this form agrees substantially with that of the Hanley Castle
Missal of the same period (_ibid._, 163). In the ritual of the
fifteenth-century Harleian MS., in the British Museum, after
asking the banns, "the woman shall be given in this manner:
Sacerdos utriusque manu dextera apprehensa, jungat eos similiter,
sicut faciunt qui fide se obligant" (_ibid._, 166); but here,
of course, the words "jungat eos" are not words of power, for
they precede the marriage vow of the parties. According to the
Welsh ritual of the fifteenth century, "the woman is given by her
father or by another friend" (_ibid._, 167); and this form is
observed in the Sarum liturgy published both by MASKELL
(_Monumenta_, I, 56), and the Surtees Society (LXIII, Appendix,
19), while in one MS. of the same service the words "deinde detur
[Ecclesiae] femina a patre suo, vel ab amicis ejus" (_ibid._,
_loc. cit._, 19) appear, thus in effect agreeing with the form
of the York manual. An interesting variation occurs in the
Pontifical of Magdalen College, Oxford, of the twelfth century,
where the priest does not _receive_ the woman from her guardian,
but _joins with him_ in giving her to the husband: "Sacerdos
et patronus sponsae dent ipsam sponso per dexteram" (_ibid._,
160). A ritual of Arles (_ca._ 1300) affords evidence of a
similar transition in the form of tradition: see the extract
in SOHM, _Eheschliessung_, 165 n. 27; and compare on
this subject FRIEDBERG, _Eheschliessung_, 38, 62. On
the English celebration _cf._ JEAFFRESON, _Brides and
Bridals_, I, 88-98.
It appears, then, as regards the form of celebration, that previous
to the Reformation the church had not made so great progress in
England as in many places on the continent. The _gifta_ is still
essentially the ancient private tradition, in which the priest has
at most a subordinate place; and the words of power following, and
as it were sealing, the nuptial vow do not appear. Still there is a
decided gain; for the whole procedure is given a religious character
through the solemn prayers and benedictions, the authoritative
definitions of the nature of marriage, and the stately ceremonial of
the bridal mass, in all of which the priest is the central figure.
If now, turning from the evidence afforded by the content of the
prescribed rituals, we examine the legislation of the church for
enforcing the acceptance of these rituals, we shall reach a similar
result. Stated broadly in advance, the English canons created a
sharp distinction between legality and validity. Lay marriages--that
is, marriages solemnized without the intervention of the church,
including clandestine unions as well as those privately contracted
before witnesses with parental consent--were opposed to canonical
marriages: and lay marriages were declared illegal under severe
penalties, even excommunication; while at the same time, if once
contracted in words of the present tense, they were maintained
as equally valid and equally sacramental in their nature with
those celebrated according to the authorized liturgy before the
priest.[1007]
[1007] In general, for the canons relating to the priestly
benediction and the ecclesiastical celebration see
JOHNSON, _Collection of the Laws and Canons of the
Church of England_, I, 202; II, 19, 27, 64, 89, 91, 340, 395,
410; PEMBERTON'S historical summary in 10 CLARK AND
FINNELLY, 616 ff.; and the summaries of MASKELL,
_Monumenta ritualia_, I, cclxiv-ix; and MAKOWER,
_Const. Hist. of Church of England_, 213, 214 n. 5. For the
early period see the collections of Thorpe, Schmid, Haddan and
Stubbs, and Wilkins. An excellent discussion of the subject is
given by POLLOCK AND MAITLAND, _Hist. Eng. Law_, II,
364 ff.; and a very detailed treatment in FRIEDBERG'S
_Eheschliessung_, 33 ff., 309 ff.
During the Anglo-Saxon period various orders and regulations
commanding the benediction were passed. Theodore thus requires the
priest, in the case of a first marriage, to celebrate the mass,
doubtless the ordinary service, and to ask a benediction upon both
parties;[1008] while by the ritual of the tenth century, already
quoted, the nuptials are to be celebrated before a mass-priest "who
shall with God's blessing bind their union to all prosperity."[1009]
But after the Conquest more stringent measures were taken to secure
publicity and enforce the observance of religious rites. Especially
important is the celebrated constitution of Archbishop Lanfranc,
alleged to have been enacted at the Council of Winchester in 1076,
ordaining "that no man give his daughter or kinswoman in marriage
without the priest's benediction," and declaring that otherwise "the
marriage shall not be deemed legitimate but as fornication."[1010]
Twenty-six years later, at the Council of London, an attempt was
made by Anselm to put a check upon clandestine contracts, in a
provision which really defines the principle governing the decisions
of the ecclesiastical courts throughout the west. "Promises of
marriage made between man and woman without witnesses" are declared
to be "null if either party deny them."[1011] In 1175 these acts
were reinforced by a canon of Archbishop Richard, taken from the
decrees of Pope Ormisdas (Hormisdas) of the year 514, ordering
that "no faithful man, of what degree soever, marry in private, but
in public, by receiving the priest's benediction. If any priest be
discovered to have married any in private let him be suspended from
his office for three years."[1012] By a constitution of Archbishop
Walter, in the year 1200, it was further ordained that "no marriage
be contracted without banns thrice published in church, nor between
persons unknown;" and no marriage not publicly solemnized in face of
the church is "to be allowed of, except by the special authority of
the bishop."[1013]
[1008] _Poenit. Theod._, Book I, c. 14, §1: HADDAN AND
STUBBS, _Councils_, III, 187; MAKOWER, _Const.
Hist. Church of Eng._, 213, 214 n. 5.
[1009] SCHMID, _Gesetze_, Anhang VI, 392, 393;
THORPE, _Ancient Laws_, I, 255-57; MAKOWER,
_loc. cit. Cf._ also the _Excerptiones Ecgberti_, c. 90 (or
88), THORPE, II, 110, reproducing a canon of the
Council of Carthage requiring that "the bridegroom and bride
be offered by the parents, and bridefolk, to receive the
priest's benediction": JOHNSON'S _Canons_, I, 202,
and the so-called _Canones Ælfrici_ (A. D. 992-1001), sec.
9, in THORPE, II, 347, declaring that "the layman
may, however, with the apostle's leave take a wife a second
time; if his wife falls away from him; but the canons forbid
blessing thereto and have ordered such men to do penance":
MAKOWER, _loc. cit._
[1010] "Praeterea statutum est, ut nullus filiam suam, vel
cognatam, det alicui, absque benedictione sacerdotali. Si aliter
feceret, non ut legitimum conjugium, sed ut fornicatorium,
judicabitur."--PARKER, _De antiquitate britannicae
ecclesiae_ (London, 1729), 173; also WILKINS,
_Concilia_, I, 367; MAKOWER, _loc. cit._; and translated
in JOHNSON'S _Canons_, II, 19. _Cf._ POLLOCK AND
MAITLAND, _Hist. Eng. Law_, II, 368 n. 2.
[1011] "Ut fides inter virum et mulierem, occulte et sine
testibus, de conjugio data, si ab alterutro negata fuerit,
irrata habeatur."--WILKINS, _Concilia_, I, 382;
JOHNSON, _Canons_, II, 27; MAKOWER, _loc. cit._
[1012] JOHNSON, _Canons_, II, 64.
[1013] _Ibid._, 91.
These measures, and others later enacted in a similar spirit,[1014]
have led to a serious misapprehension of the real doctrine of
the canon law. From them it has been zealously argued that the
prescribed religious celebration was essential to a valid contract;
and this view was strengthened by the decree of Innocent III. at the
fourth Lateran council, 1215, requiring the publication of banns
as a general law of the western church, which by a similar error
was understood to have ordained ecclesiastical marriage.[1015]
But in the light of history it seems clear that all which was
intended by this decree, or by the constitution of Lanfranc and
its successors, was to declare the unblessed marriage illegal,
involving certain penalties or disadvantages, without touching
its validity.[1016] The lay courts, as will appear in the next
chapter, might deny full rights of dower and inheritance to the
issue of such unions; but after the thirteenth century, as well as
before, marriages celebrated without the intervention of priest
or magistrate were sustained by the church as binding. As already
emphasized at the outset of this discussion, the private, even
secret, agreement of the parties, without consent of parent or
guardian, if expressed in words of the present tense, _sponsalia
per verba de praesenti_,[1017] though not followed by cohabitation,
was held to constitute a valid marriage; and it could be sustained
against a subsequent contract publicly celebrated according to
ecclesiastical forms and followed by years of wedded life. This is
unquestionably the doctrine of the canon law of western Christendom,
as emphatically expressed in the decretal epistle of Alexander III.
to the bishop of Norwich presently to be noticed;[1018] and that
it was accepted by the English courts as a part of the law of the
land is established by conclusive evidence. Not until the Council
of Trent, in the middle of the sixteenth century, was there any
general legislation of the church to enforce ecclesiastical rites.
This council, after anathematizing those who deny that clandestine
marriages theretofore contracted by the sole agreement of the
parties and without parental consent are "true and valid," decreed,
contrary to the opinion of fifty-six prelates, that thenceforward
all marriages not contracted in the presence of a priest and two or
three witnesses shall be void.[1019] This decree was not accepted in
England, and "clandestine" marriages continued to be valid until the
middle of the eighteenth century; and until 1856, in Scotland, as
is well known, the mere consent of the parties, however expressed,
constituted a binding marriage.[1020]
[1014] Especially the constitution of Reynolds, 1322; that of
Stratford, 1343; and that of Zouche, 1347: _ibid._, 340, 341,
395, 410, 411.
[1015] FRIEDBERG, _Eheschliessung_, 39, note, gives
a list of the authors making this mistake. "This belief is
stated by Blackstone, _Comment._, I, 439, and was in his time
traditional among English lawyers. Apparently it can be traced
to Dr. Goldingham, a canonist who was consulted in the case of
Bunting _v._ Lepingwell (Moore's _Reports_, 169)": POLLOCK
AND MAITLAND, _Hist. of Eng. Law_, II, 368, 369, note;
FRIEDBERG, _op. cit._, 314.
[1016] Even the words of Lanfranc, strong as they are, do not
invalidate an unblessed marriage. "He does not say that the union
will be mere fornication; he says that it will be _coniugium
fornicatorium_, an unlawful and fornicatory marriage. Lanfranc's
words recall those of the Pseudo-Isidorian Evaristus which appear
in c. 1, C. 30, q. 5"; POLLOCK AND MAITLAND, _op. cit._,
II, 368 n. 2; FREISEN, _Geschichte des can. Eherechts_,
139.
[1017] For some account of the distinction between _sponsalia de
praesenti_ and _de futuro_, with references, see the next chapter.
[1018] This epistle sustained a marriage by private consent
as against one subsequently contracted and consummated. The
opposing view is thus set forth by Pemberton in The Queen _v._
Millis: "In 1160 Pope Alexander issued edicts in which marriages
without the presence of a priest were declared good; but almost
immediately afterwards came the canons already cited [those of
1175 and 1200 mentioned in the text], to guard against the abuse
of the permission thus given by the pope. But from what follows
it is clear that the law which admitted the canon law in other
countries, as part of the law of the land, was never adopted in
England. In 1253 the attempt was made to introduce the canon law
of marriage recognized by the popes, against the ecclesiastical
law of England and the answer was the well-known answer that the
barons would not consent to have the laws of England changed": 10
CLARK AND FINNELLY, 617. This is a strange perversion of
the truth: see POLLOCK AND MAITLAND, _op. cit._, II, 370
n. 1.
[1019] BOHN, _Pol. Cyc._, III, 319, 320.
FRIEDBERG, _Eheschliessung_, 123, 124, gives the
text of the decree; and his second book, 101-50, contains an
interesting history of the proceedings of the council on the
subject of marriage. An English version of the text of the decree
may be found in WATERWORTH, _Canons and Decrees of the
Council of Trent_, 196-99, who also describes the proceedings
(ccxxi-xxxvi). _Cf._ SALIS, _Die Publikation des trid.
Rechts der Eheschliessung_, 2 ff.; FLEINER, _Die
trident. Ehevorschrift_, 1 ff.; ESMEIN, _Le mariage en
droit canonique_, II, 119-37; MADAN, _Thelyphthora_,
III, 238 ff. SOHM, _Eheschliessung_, 187-96, shows
that the Tridentinum still maintains the Germanic principle of
_consensus_ as the valid marriage.
For the sources see the collections of Theiner and
Richter-Schulte and the works of Sarpi and Pallavicino mentioned
in Bibliographical Note VII.
[1020] On Scotch marriages see EDGAR, _Marriages
in Olden Times_, 134-203; WALTON, _Scotch
Marriages_; GEARY, _Marriage and Family Relations_,
534 ff.; HAMMICK, _The Marriage Law_, 221 ff.;
FRIEDBERG, _Eheschliessung_, 57, 58, 426, 427, 437-59;
BOHN, _Pol. Cyc._, III, 326; STEPHENS, _Laws
of the Clergy_, I, 672, 688; ROBERTSON, _Encyc.
Britannica_, XV, 567; KENT, _Commentaries_, II, 90.
_Cf._ especially the case of Dalrymple _v._ Dalrymple, in 2
HAGGARD'S _Consistory Reports_, 54-137.
It follows that the unanimous opinion of the English judges in the
great case of the Queen _v._ Millis, 1844, against the validity
of a marriage not celebrated before an ordained priest of the
established church, is not supported by the evidence of history as
revealed in the doctrines of the canon law and in the action of the
ecclesiastical courts during six centuries.[1021] The following
are the main facts in the history of this famous suit: In January,
1829, at Banbridge, county of Down, Ireland, George Millis and
Hester Graham "entered into a contract of present marriage" in
the presence of John Johnstone, the "placed and regular minister
of the congregation of Protestant dissenters commonly called
Presbyterians, at Tullylish, near Banbridge," who performed a solemn
religious ceremony according to the usual rites of his sect. Thus
there was a perfect and binding contract _de praesenti_ according
to ecclesiastical law. Later, while Hester was still living, Millis
married Jane Kenedy in England, using the forms of the established
church, of which he was a member. At the spring assizes of 1842, for
the county of Antrim, Ireland, Millis was indicted for bigamy. The
case was removed by _certiorari_ into the Irish court of Queen's
Bench, where the four judges were evenly divided; but Justice
Perrin, who favored the validity of the first marriage, withdrew
his opinion _pro forma_, that the case might go to the House of
Lords for definite settlement.[1022] The Lords submitted the case
to the English judges for advice; and they unanimously decided
against the validity of the first marriage on the ground that it
had not been celebrated before a regular clergyman of the English
church. That the decision was hasty and in direct opposition to
history, as revealed in all the great cases, there can now be small
doubt. "We have here," says Bishop, "a question of almost pure
ecclesiastical law, submitted to a tribunal composed of common-law
and equity lawyers, who necessarily possessed little or no knowledge
of the subject. So they ask advice, not from the ecclesiastical
judges, whose functions had qualified them to give it, but from the
uninstructed common-law judges. The latter were competent to learn,
but they were not allowed the necessary time. Lord Chief-Justice
Tindal, who delivered their opinion, complained of the want of time
for investigation; and the opinion throughout shows the complaint to
have been well founded."[1023]
[1021] See the cases mentioned in the Bibliographical Note at the
head of this chapter. Of course, most of the decisions are cited
and elaborately discussed by the counsel and judges in Queen
_v._ Millis and Beamish _v._ Beamish. An important case is given
in _Harvard Law Review_, VI, 11. _Cf._ SWINBURNE, _Of
Spousals_, 13, 104, 193, _passim_; and especially HALE'S
_Precedents and Proceedings in Criminal Laws, 1475-1640_, taken
from the act-books of ecclesiastical courts in the diocese of
London, and containing a mass of most interesting and convincing
evidence relating to the subject (see the Index at "Matrimonial
Causes").
[1022] For the record of the proceedings in Ireland see _Report
of the Cases of Regina v. Millis, et Regina v. Carroll in the
Queen's Bench in Ireland_ (Dublin, 1842).
[1023] BISHOP, _Mar., Div., and Sep._, I, §§ 400, 401.
This view is strongly supported by the action of the Lords. In
spite of the united opinion of the judges, the final deliberation
of the six law peers resulted in a tie: Lords Cottenham, Abinger,
and Chancellor Lyndhurst holding the first marriage to be void; and
Lords Brougham, Denman, and Campbell maintaining its validity. But
since the case was on appeal from the decision of another court,
the result of the tie was to declare the invalidity of unblessed
wedlock.[1024]
[1024] The case is given in 10 CLARK AND FINNELLY,
_Reports of Cases Decided in the House of Lords_, 534-907. The
text of the opinion of the English judges may also be found in
STEPHENS, _Laws of the Clergy_, I, 675-94. It was ably
refuted by SIR JOHN STODDART in his _Observations on the
Opinion_ and his _Letter to Lord Brougham_ (both London, 1844).
Thus by a remarkable sequence of circumstances and accidents was
established the judicial interpretation of the English law governing
the marriage celebration.[1025] The decision was therefore followed
in another celebrated case, that of Beamish _v._ Beamish, which came
before the House of Lords in 1861. This was a case of "clandestine"
marriage, the bridegroom himself performing the ceremony in a
private house according to the ritual of the established church. In
the record we are told that the "Rev. S. S. Beamish, in the year
1831, became attached to a young lady named Isabella Frazer (both
being members of the United Church of England and Ireland), and as
he did not obtain his father's consent to his marriage with her, he
persuaded her into a clandestine marriage, which, according to the
special verdict found in the case, was performed in the following
manner: 'On the 27th November, 1831, the Rev. Samuel Swayne Beamish,
being then a clergyman in holy orders, went to the house of one
Anne Lewis, in the city of Cork, and there performed a ceremony of
marriage between himself and Izabella Frazer, by reading between
them ... the form of solemnization of matrimony used in said United
Church of England and Ireland, as set forth in the Book of Common
Prayer, ... by declaring' in words of the present tense that he took
the bride 'to his wedded wife,' she making a similar avowal; by
placing a ring on her finger; and by pronouncing the blessing in the
appointed form." The court held the contract void, declaring that,
since it was "settled by the decision in the Queen _v._ Millis,
that to constitute a valid marriage by the common law of England,
it must have been celebrated in the presence of a clergyman in holy
orders, the fact that the bridegroom is himself a clergyman in holy
orders, there being no other clergyman present, will not make the
marriage valid." For "as to the manner in which a marriage is to be
celebrated, the law does not admit of any difference between the
marriage of a clergyman and of a layman."[1026]
[1025] In 1844, by the act of 7 and 8 Victoria, c. 81, the
essential features of 6 and 7 Will. IV, c. 85, which had made the
public observance of ecclesiastical or civil forms necessary to a
valid marriage in England, were extended to Ireland; and this was
the result of the excitement caused by the case of the Queen _v._
Millis of the same year.
[1026] Case of Beamish _v._ Beamish in 9 _House of Lords Cases_,
274-358. The report in this case, like that in Queen _v._ Millis,
constitutes an extended history of English matrimonial law.
The singular motives underlying this decision have been recently
discussed in an instructive way by Sir Frederick Pollock. It
appears that a former judgment of the Lords must be maintained,
however absurd or however inconsistent with history or justice it
is felt to be. Already in 1852 and again in 1860 Lord Chancellor
Campbell had committed himself to the dogma that the House of Lords
is bound by its own decisions. At the former date, answering Lord
St. Leonards, who holds the opposite view, he says: "I consider
it the constitutional mode in which the law is declared, and that
after such a judgment has been pronounced it can only be altered
by an Act of the Legislature."[1027] When the case of Beamish _v._
Beamish came "before the House of Lords, the late Mr. Justice Willes
virtually, though not professedly, demonstrated, in a full and most
learned opinion, that the supposed difference between the law of
England and that of the rest of western Christendom was imaginary.
His reasons convinced Lord Campbell and Lord Wensleydale, but Lord
Campbell declared himself not at liberty to act on his conviction;"
though, for sound reasons which he admits, he confessed that if
competent for him he would ask their Lordships to reconsider their
judgment in the Queen _v._ Millis. "But it is my duty," he adds, "to
say that your Lordships are bound by this decision as much as if
it had been pronounced _nemine dissentiente_." A "rule of law thus
judicially expressed must be taken as for law till altered by an act
of Parliament." The "law laid down as your _ratio decidendi_, being
clearly binding on all inferior tribunals, and all the rest of the
Queen's subjects, if it were not considered as equally binding upon
your Lordships, this house would be arrogating to itself the right
of altering the law, and legislating by its own separate authority."
It "may seem startling," comments Pollock, "that questions of
legitimacy and property should be treated as irrevocably settled by
the result of an equal division of the House of Lords, on argument
and information admittedly imperfect with regard to the history of
the law; that result, moreover depending on the accident of the
form in which the appeal was presented: but so they were." Thus
in Beamish _v._ Beamish an opinion of seventeen years earlier was
accepted as binding, "which in 1861 was believed by a majority
of the House of Lords and the judges who advised them, and is
now believed by most competent scholars, to be without any real
historical foundation."[1028]
[1027] In Bright _v._ Hutton, 3 _H. L. C._, 391, 392. For his
opinion in 1860 see A.-G. _v._ Dean and Canons of Windsor, 8 _H.
L. C._, 391-93.
[1028] Following POLLOCK, _First Book of Jurisprudence_
(London, 1896), 311-17.
In general, on these decisions and those preceding see the
masterly discussion of FRIEDBERG, _Eheschliessung_,
39-57, 427, 464 ff. His conclusions are supported by
SOHM, _Eheschliessung_, 125 ff.; POLLOCK AND
MAITLAND, _Hist. of Eng. Law_, II, 367 ff.; and by the
article of ELPHINSTONE, in _Law Quarterly Review_, V,
49 ff. Compare REEVES, _Hist. of the Common Law_, IV,
52 ff.; BISHOP, _Marriage, Divorce, and Separation_,
II, 171, 172; KENT, _Commentaries_, II, 87 ff., notes;
BRIGHT, _Husband and Wife_, II, 398. These judgments are
regarded as historically just by DIECKHOFF, _Die kirch.
Trauung_, 70, note; and COOK, "The Marriage Ceremony in
Europe," _Atlantic_, LXI.
CHAPTER VIII
RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH DEVELOPS AND ADMINISTERS
MATRIMONIAL LAW
[BIBLIOGRAPHICAL NOTE VIII.--For the evolution of the canonical
theory of marriage the Richter-Friedberg _Corpus juris
canonici_ (Leipzig, 1881 ff.), Peter Lombard's _Sententiae_
(Incunabula, _Textus sententiarum_, 1488, Sutro Library), and
the _Ante-Nicene Fathers_ (Buffalo, 1885-87) are of the first
importance. The collections of Haddan and Stubbs, Thorpe,
Schmid, Hale, and Johnson, mentioned in Bibliographical Note
VII, are available for this chapter; as are also the collections
of Richter-Schulte, Theiner, and Waterworth, the works of Sarpi
and Pallavicino, the monographs of Salis, Fleiner, Riedler,
and Leinz, the papers of Meurer and Schulte, with the other
authorities already cited for the Council of Trent. Well-known
treatises on the canon law are Lyndwood, _Provinciale_
(ed. of 1505 and Oxford, 1679); Sanchez, _Disputationum de
s^{to} matrimonii sacramento_ (Venice, 1625); and Godolphin,
_Repartorium canonicum_ (3d ed., London, 1687). With these may
be used Smith, _Elements of Ecclesiastical Law_ (New York,
1882); Phillimore, _Ecclesiastical Law_ (London, 1873-76);
Stephens, _Laws Relating to the Clergy_ (London, 1848); Burn,
_Ecclesiastical Law_ (London, 1842); and the excellent summary
of Geary, _Marriage and Family Relations_ (London, 1892),
chap, xvi, where the principal sources are mentioned. Dodd's
_History of the Canon Law_ (London, 1884) is too general to be
of much service. A good handbook of Catholic doctrine, with
full citation of authorities, is Gury's _Compendium of Moral
Theology_; and in this connection may also be consulted Amat's
convenient _Treatise on Matrimony_ (San Francisco, 1864); the
works of Cigoi, Didon, Roskovány, Perrone, and Scheicher-Binder
described in Bibliographical Note XI.
The rise of the system of enforced celibacy of the clergy, with
the consequent evils, is most fully treated by the brothers
Theiner, _Die Einführung der erzwungenen Ehelosigkeit_ (3d ed.,
Barmen, 1891-98), whose book, first published in 1828, has been
fiercely attacked by Catholic critics; and Lea, _Sacerdotal
Celibacy_ (2d ed., Boston, 1884); supplemented by his _History
of Auricular Confession and Indulgences in the Latin Church_
(Philadelphia, 1896). The immorality of the mediæval clergy
is also described by Bouvet, _De la confession et du célibat
des prêtres_ (Paris, 1845); Gage, _Woman, Church, and State_
(Chicago, 1893); _idem_, an article under the same title in
_History of Woman Suffrage_ (New York, 1881); Lecky, _History of
European Morals_ (3d ed., New York, 1881); and Huth in the third
chapter of _Marriage of Near Kin_ (2d ed., London, 1887). For a
later period the subject is dealt with by Michelet, _Le prêtre,
la femme, et la familie_ (new ed., Paris, 1889); and "A. F. R.,"
_Betrachtungen über den Klerikal- und Mönchsgeist im neunzehnten
Jahrhundert_ (1805). In this connection see also Bucksisch, _De
apostolis uxoratis_ (new ed., Wittenberg, 1734); Essich, _De
clericis maritis dissertatio historica_ (Augusta Vindelicorum,
1747); Feyerabend, _De privilegiis mulierum_ (Jena, 1667);
_Recherches philosophiques et historiques sur le célibat_
(Geneva, 1781); _De l'institution du célibat_ (Paris, 1808);
Klitsche, _Geschichte des Cölibats ... zum Tode Gregor's VII_.
(Augsburg, 1830); Lind, _De coelibatu christianorum per tria
priora secula_ (Havniae, 1839); the anonymous _Letters on the
Constrained Celibacy of the Clergy_ (London, 1816); Zimmermann,
_Der Priester-Cölibat_ (Kempten, 1899), presenting the loyal
Catholic point of view; and the monograph of Schulte, _Der
Cölibatszwang und dessen Aufhebung_ (Bonn, 1876). A favorable
view of the conventual life is taken by Eckenstein, _Woman
under Monasticism_ (Cambridge, 1896); and curious monuments of
the contempt for woman produced by asceticism are the books of
Valens Acidalius and his adversary Simon Geddicus, mentioned in
a footnote below. For the controversy in France regarding the
validity of the marriage of a priest under the temporal law see
Nachet, _Liberté du mariage des prêtres: Mémoire produit à la
Cour de Cassation pour M. Dumonteil_ (Paris, 1833); and Horoy,
_Du mariage civil du prêtre en France_ (Paris, 1890).
The manifold evils arising from the canonical distinction
between _sponsalia de praesenti vel futuro_ are best described
in the vigorous words of Martin Luther. In particular should
be read the thirty-sixth chapter of the _Tischreden_ (folio,
Frankfort, 1571), and the _Von Ehesachen: Werke_, XXIII
(Erlangen ed.) or Vol. V in _Bücher und Schriften_ (Jena,
1555-80). The quaint and learned book of Swinburne, _Of
Spousals_ (London, 1686), contains a striking passage bearing
on the subject; while for the mediæval English law should be
consulted Glanville's _Tractatus_; Bracton's _De Legibus_ (ed.
Twiss, London, 1878-83); _idem_, _Note Book_ (ed. Maitland,
London, 1887); and Maitland's _Select Pleas of the Crown_.
With Sohm's view as to the essential identity in form of
the two kinds of _sponsalia_ compare the various works of
Biener, Bierling, Sehling, Scheurl, and Dieckhoff mentioned in
Bibliographical Note VII. The text of Master Vacarius's _Summa
de matrimonio_ is edited by Maitland in _Law Quarterly Review_,
XIII (London, 1897); and in the same volume he discusses
Vacarius's theory of marriage, differing essentially from that
of Gratian or Lombard. Assistance may also be had from Weber,
_De vera inter sponsalia de praesenti et nuptias differentia_
(Parchimi, 1825); Hoffmann, _De aetate juvenili contrahendis
sponsalibus_ (Regiomonti et Lipsiae, 1743); Lipold, _Arbor
consanguinitatis et affinitatis_ (n. p., n. d.); Niemeier, _De
conjugiis prohibitis dissertationes_ (Helmstadt, 1705); Born,
_De bannis nuptialibus_ (Leipzig, 1716); and the dissertations
on parental consent and clandestine marriage mentioned in
Bibliographical Note IX.
Remarkable testimony as to the existence of clandestine marriage
in England during the first half of the sixteenth century is
given by Richard Whitforde, _A Werke for householders_ (1530; 2d
ed., 1537); and in Miles Coverdale's translation of Bullinger's
_Christen State of Matrimonye_ (1st ed., 1541, in British
Museum).
Indispensable guides for the study of the entire subject are
still the works of Sohm, Friedberg, and Pollock and Maitland;
but by far the best systematic histories of canon-law marriage
are Freisen's _Geschichte des canonischen Eherechts_ (Tübingen,
1888; Paderborn, 1893); and Esmein's masterly _Le mariage en
droit canonique_ (Paris, 1891). A similar work for the eastern
church is Zhishman's _Das Eherecht der orientalischen Kirche_
(Vienna, 1864). Illustrative decisions are communicated by
Frensdorff, "Ein Urtheilsbuch des geistlichen Gerichts zu
Augsburg aus dem 14. Jahrhundert," in _ZKR._, X (Tübingen,
1871); and Loersch, "Ein eherechtliches Urtheil von 1448,"
_ibid._, XV (Freiburg and Tübingen, 1880). There is an article
on the beginnings of ecclesiastical jurisdiction by Sohm, "Die
geistliche Gerichtsbarkeit im frankischen Reich," _ibid._,
IX (Tübingen, 1870). Wunderlich has a serviceable edition of
Tancred's _Summa de matrimonio_ (Göttingen, 1841); and among the
works relating to special questions are Sehling, _Die Wirkungen
der Geschlechtsgemeinschaft auf die Ehe_ (Leipzig, 1885);
Heinlein, _Die bedingte Eheschliessung_ (Vienna, 1892); Andreae,
_Einfluss des Irrthums auf die Gültigkeit der Ehe_ (Göttingen,
1893); Eichborn, _Ehehinderniss der Blutsverwandtschaft_
(Breslau, 1872); Gerigk, _Irrtum und Betrug als Ehehinderniss_
(Breslau, 1898); Benemann, _De natura matrimonii_ (Halle,
1708); Baier, _Die Naturehe in ihrem Verhältniss zur ...
christlich-sakramentalen Ehe_ (Regensburg, 1886); Hahn, _Die
Lehre von den Sakramenten_ (Berlin, 1864); and the standard
Catholic treatise of Oswald, _Die dogmatische Lehre von den
heiligen Sakramenten_ (5th ed., Münster, 1894).
In general, besides the works of Gide, Loening, Combier, Tissot,
Burn, Thwing, Blackstone, Jeaffreson, Lingard, Makower, Madan,
and Morgan, elsewhere described, the following have been drawn
upon in various connections: Wasserschleben, _Bussordnungen_
(Halle, 1851); Schmitz, _Bussbücher_ (Mainz, 1883); Lobethan,
_Einleitung zur theoretischen Ehe-Rechts-Gelahrtheit_ (Halle,
1785); Schott, _Einleitung in das Eherecht_ (new ed., Nuremberg,
1802); Goeschl, _Ehegesetze_ (Aschaffenburg, 1832); Stäudlin,
_Geschichte der Vorstellungen und Lehren von der Ehe_
(Göttingen, 1826); Palgrave, _English Commonwealth_ (London,
1832); Kemble, _Saxons in England_ (London, 1876); Ellis,
_Introduction to Domesday Book_ (Record Commission, 1833);
Bigelow, _Placita anglo-normannica_ (Boston, 1881); Stubbs,
_Select Charters_ (Oxford, 1881); _idem_, _Constitutional
History_ (Oxford, 1875-78); _idem_, _Seventeen Lectures_
(Oxford, 1886); Denton, _England in the Fifteenth Century_
(London, 1888); Traill, _Social England_ (New York, 1898);
Nisbet, _Marriage and Heredity_ (London, 1888); Smith, _The
Parish_ (London, 1857); Kent, _Commentaries_ (Boston, 1873);
Gibbon, _Decline and Fall_ (London, 1830); and some of the
Reformation writers referred to in Bibliographical Notes IX and
XI.]
I. THE EARLY CHRISTIAN DOCTRINE AND THE RISE OF THE CANONICAL THEORY
It was most unfortunate for civilization that the Christian
conception of the nature of marriage should have sprung from
asceticism, and that the verbal subtlety of the schoolmen should
have produced the cardinal definitions upon which the validity of
marriage contracts, and therefore the practical administration
of matrimonial law, were made to depend. The mediæval teaching
regarding forbidden degrees, the sacramental nature of matrimony,
and the difference between contracts _de futuro_ and _de praesenti_
are mainly responsible for the shameful abuses which disgrace the
record of ecclesiastical judicature previous to the Council of
Trent. With regard to an institution upon which in so high a degree
the welfare of society depends, anarchy was practically sanctioned
by the canon law. Where the utmost clearness and simplicity were
needed, obscurity and complexity prevailed; and where publicity
was urgently required by the plainest rule of common-sense, there
secrecy was in effect invited and rewarded.
The early church was only too ready to take in hand the supervision
of marriage and the development of matrimonial law. With regard to
the _form_, as already shown, her progress was cautious and slow.
Not until the thirteenth century, as a general rule, does the
priest appear with authority as one especially qualified by his
religious office to solemnize the nuptials. But long before this,
in nearly every other respect save only the betrothal, the church
was taking sole possession of the field of matrimonial law and
jurisdiction.[1029] Yet the institution of marriage was accepted, as
it were, under protest. Here and there, of course, the early Fathers
admit the purity of the marriage state,[1030] but usually with a
tone of apology or depreciation which is itself very suggestive
of the pervading trend of the ascetic mind. If wedlock be holy,
celibacy is much more holy. "It is better to marry than to burn,"
is a dictum which sounds the keynote of ecclesiastical dogma. "Few
texts," declare Pollock and Maitland, "have done more harm than
this. In the eyes of the mediæval church marriage was a sacrament;
still it was but a remedy for fornication. The generality of men
and women must marry or they will do worse; therefore marriage
must be made easy; but the very pure hold aloof from it as from a
defilement. The law that springs from this source is not pleasant to
read."[1031]
[1029] ESMEIN, _Le mariage en droit canonique_, I, 3, 4,
distinguishes the three phases in the growth of the canon law:
"D'abord, elle s'est développée à côté du droit séculier, celuici
restant indépendant et souverain dans son domaine, et n'a exercé
qu'une action parallèle. Dans une seconde phase, elle a supplanté
et éliminé le droit séculier, elle seule régissant le mariage
dans l'Europe chrétienne. Enfin, devant un reflux puissant de la
législation civile, elle a dû, dans le temps moderne, abandonner
le terrain qu'elle avait ainsi occupé, pour garder seulement son
autorité première, et reprendre son ancienne position."
[1030] For examples see IGNATIUS, _Epis. to Philadel._,
c. iv; _Epis. to Polycarp_, c. v, in _Ante-Nicene Fathers_,
I, 81, 95; JUSTIN, _First Apol._, cxv, _ibid._, 167;
ATHENAGORAS, _Plea for Christians_, c. xxxiii, _ibid._,
II, 147; CLEMENT OF ALEX., _ibid._, 259-63, 377-79. In
this last passage Clement is less coarse than usual. "Marriage,
then, as a sacred image," he concludes, "must be kept pure from
those things which defile it." _Cf._ also TERTULLIAN,
_ibid._, III, 293-95, 443; ORIGEN, _To His Wife_,
_ibid._, IV, 40-44. Compare BUCKSISCH, _De apostolis
uxoratis_, 9 ff., who holds that, with the exception of John and
Paul, all the apostles had wives. In general, on the development
of the early Christian conception of marriage from its Roman
and Hebrew beginnings, see FREISEN, _Geschichte des
can. Eherechts_, 32 ff.; ZHISHMAN, _Das Eherecht der
orient. Kirche_, 93 ff.; SCHULTE, _Der Cölibatszwang_,
5 ff.; THEINER, _Die Einführ. der erz. Ehelosigkeit_,
I, 5 ff.; STÄUDLIN, _Geschichte der Vorstellungen
und Lehren von der Ehe_, 259 ff.; _Letters on the Const.
Celibacy of the Clergy_, 22 ff., 51 ff.; _Recherches phil.
et hist. sur le célibat_, 67 ff. On the influence of Paul's
teaching see THWING, _The Family_, 47 ff.; and compare
NISBET, _Marriage and Heredity_, 33-57, who takes an
unfavorable view of the influence of the church as opposed to
that of Christianity; and GAGE, _Woman, Church, and
State_, 49 ff.; HUTH, _Marriage of Near Kin_, 108 ff.
[1031] POLLOCK AND MAITLAND, _Hist. Eng. Law_, II, 383.
Compare the excellent account of the canonical conception of
marriage in ESMEIN, _Le mariage en droit canonique_,
I, 63-92. "Enfin, le mariage étant conçu comme un remède à
la concupiscence, le droit canonique sanctionnait, avec une
énergie toute particulière, l'obligation du devoir conjugal,
non seulement dans le _forum internum_, mais encore devant
le _forum externum_. De là toute une série de règles que les
canonistes du moyen âge exposaient avec une précision minutieuse
et une innocente impudeur, et qu'il est parfois assez difficile
de rappeler, aujourd'hui que les mœurs ont changé et que l'on
n'écrit plus en latin."--_Ibid._, 84, cited also by POLLOCK
AND MAITLAND, II, 383. It is well, for instance, that the
editors of the _Ante-Nicene Fathers_ have concealed the "innocent
immodesty" of Clement of Alexandria (_The Instructor_, c. x,
_ibid._, II, 259 ff.; _Stromata_, Book III, _ibid._, II, 381
ff.) in the Latin version. The indecency of the Penitentials is
so shocking as almost to justify Gibbon's severe epigram that in
them "some sins are enumerated which innocence could not have
suspected, and others which reason cannot believe."--_Decline
and Fall_, chap. lviii, 1070. "I know of no more fatal sources
of antichristian error," says Kemble of the Penitentials, "no
more miserable records of the debasement and degradation of human
intellect, no more frightful proofs of the absence of genuine
religion."--_Saxons_, II, 403, 404. See the _Poenitentiale
Theodori_, lib. i, c. ii: HADDAN AND STUBBS, _Councils_,
III, 178, 179; and especially WASSERSCHLEBEN'S excellent
collection of _Bussordnungen_.
The monstrous indecencies of the mediæval confessional are
revealed by BOUVET, _De la confession et du célibat des
prêtres_, 195 ff. On the other hand, a word of justification may
be found in ELLIS, _Psychology of Sex_, I, pp. viii-ix.
Here we have a double paradox, two irreconcilable contradictions,
which in due time produced their natural evil fruit. On the one
hand, marriage is a sacrament, a holy mystery, yet it rests upon
a mere human contract.[1032] On the other hand, though possessing
a sacramental character, it is but a compromise with lust, from
which the saint may well abstain. Hence a premium is placed
upon sacerdotal celibacy, though for centuries priests are not
absolutely forbidden to marry. Thus in England, at any rate until
the days of Dunstan, celibacy had not been strictly enforced in
the monastic bodies;[1033] and until a still later day marriage was
practiced by the secular clergy,[1034] the priestly office in some
instances practically becoming hereditary, passing on from father
to son.[1035] But in the western church asceticism at last gained a
complete victory; and the priest taking orders after marriage was
obliged to put away his wife; while in both East and West marriage
after the taking of orders was forbidden.[1036] The causes of
the low esteem in which marriage was held by the early Christian
theologians have been well described by Meyrick. "For some time
before the Christian era a change of sentiment as to the relative
excellence of the married and single life had been growing up among
a section of the Jews. The national feeling was strongly in favour
of marriage, and a man who was unmarried or without children was
looked upon as disgraced. But the spirit of asceticism, cherished
by the Essenes, led to an admiration of celibacy, of which no
traces are to be found in the Old Testament; so that, instead of
a shame, it became an honour to be unmarried and childless. In
the early church this spirit, at first exhibiting itself only to
be condemned in the Encratites," and some other sects, "struggled
with a healthier feeling, till at length it stifled the latter.
But another cause was working in the same direction. The days
of chivalry were not yet; and we cannot but notice, even in the
greatest of the Christian fathers, a lamentably low estimate of
woman, and consequently of the marriage relationship. Even St.
Augustine can see no justification for marriage, except in a grave
desire deliberately adopted of having children."[1037] If "marriage
is sought after for the sake of children, it is justifiable; if
entered into as a _remedium_ to avoid worse evils, it is pardonable;
the idea of 'the mutual society, help, and comfort, that the one
ought to have of the other, both in prosperity and adversity,'
hardly existed and could hardly yet exist.[1038] In the decline
of the Roman empire, woman was not a helpmeet for man, and few
traces are to be found of those graceful conceptions which western
imagination has grouped round wedded love and home affections. The
result was that the gross, coarse, material, carnal side of marriage
being alone apprehended, those who sought to lead a spiritual life,
that is, above all, the clergy, instead of 'adorning and beautifying
that holy estate' and lifting it up with themselves into a higher
sphere and purer atmosphere, regarded it rather as a necessary evil
to be shunned by those who aimed at a holier life than that of the
majority."[1039]
[1032] The Council of Trent declared marriage to be a sacrament,
but did not settle the mediæval dispute as to the relation of
its different elements. A strong party held that it is necessary
to distinguish between the contract and the sacrament. The
church might regulate the former and not the latter, for it was
established by Christ himself. This doctrine would logically
have led to civil marriage, which the council was not ready to
sanction. "In every sacrament a distinction is made between
the minister, that is the agent who produces the sacrament,
and its _materia_, the objective or real content." From this
distinction arose an important controversy; one party regarding
the priest, and the other the parties, as the minister of the
sacrament. According to the former theory, which was adopted by
the French church, the bare consent of the parties constituted
the contract, and the marriage gained its sacramental character
later through the priestly benediction. The form of valid
contract as a temporal matter may therefore be determined by the
state. As a direct consequence of this doctrine in the eighteenth
century civil marriage arose in France: FRIEDBERG,
_Geschichte der Civilehe_, 26-29; _idem_, _Eheschliessung_,
546 ff., 509 ff. _Cf._ SALIS, _Publikation des trid.
Rechts_, 46 ff.; RIEDLER, _Bedingte Eheschliessung_,
12, 18 ff.; ESMEIN, _Le mariage en droit canonique_,
I, 78 ff.; II, 159 ff. The modern Catholic church rejects the
doctrine that there can be a distinction between the contract
and sacrament, the parties being the ministers of the sacrament.
Yet in effect a distinction is really made. The benediction,
we are told, is not "necessary in order to the validity of the
sacrament; but it is the presence of the parish priest, which is
a necessary condition _sine quâ non_ in order to the validity
of the contract."--HUMPHREY, _Christian Marriage_, 70
ff., 73 ff.; OSWALD, _Die dogmat. Lehre von den heil.
Sakramenten_, II, 501 ff. On this controversy see especially
RICHTER, _Lehrbuch_, 1047-49; MEURER, "Die
rechtl. Natur des trid. Matrimonialdecrets," _ZKR._, XXII; and
SCHULTE, "Die Statthaftigkeit der Civilehe nach kath.
Grundsätzen," _ibid._, XI, holding that the action of the Council
of Trent regarding the marriage contract is not dogmatic in
character, and that hence the state, without violating Catholic
doctrine, may rightly institute a compulsory civil marriage form.
Compare ROSKOVÁNY, _De matrimonio in ecc. cath._, 35-42;
PERRONE, _De matrimonio christ._, I, 46-159.
[1033] KEMBLE, _Saxons_, II, 434 ff., 454, 455;
LINGARD, _Hist. Anglo-Saxon Church_, I, 156-62; II, 235
ff., 260 ff.; STUBBS, CONST. HIST., I, 224;
THEINER, _Die Einführ. der erz. Ehelosigkeit_, I, 267-69.
[1034] In 376 "a Gallic synod excommunicated those who should
refuse the ministrations of a priest on the ground of his
marriage," though this need not imply that the church resisted
celibacy: KEMBLE, _Saxons_, II, 441. Married priests
were still allowed in the western church in 961. "The priests
were enjoyned not to marry without the leave of the Pope, on
which account a great disturbance took place in the diocese of
Teilaw, so that it was considered best to allow matrimony to the
priests."--"Brut y Twigsog.," in HADDAN AND STUBBS,
_Councils_, I, 286. For England there is abundant evidence of
the marriage of priests, sometimes of bishops, even as late as
the twelfth century: KEMBLE, _op. cit._, II, 443 ff.;
HADDAN AND STUBBS, _op. cit._, III, 19 (temp. Gregory);
II, 178 (Scotland); LEA, _Sacerdotal Celibacy_, 147, 159
ff., 197 (concubines), 271 ff.; THEINER, _op. cit._,
II, 183 ff.; LINGARD, _Hist. Anglo-Saxon Church_, I,
156-62; II, 235, who thinks at first the rule of celibacy was
enforced; STUBBS, _Const. Hist._, I, 223, 224, notes;
ELLIS, _Int. to Domesday_, I, 342 (two examples, _an._
1086); especially the excellent discussion of celibacy in England
by MAKOWER, _Const. Hist. Eng. Church_, 212-24, where
the sources are cited.
[1035] STUBBS, _Const. Hist._, I, 243, 244, notes; _Cod.
Dipl._, xxxiii, cxlvi, ccxv, lxxx, cxxvii, lxxxii, cxxiv, clxix;
HADDAN AND STUBBS, _op. cit._, II, 178 (Scotland);
THEINER, _op. cit._, I, 321-47.
[1036] After centuries of struggle and divergent practice, this
was decreed by the Roman council under Nicholas II., 1059;
and by the first Lateran council under Calixtus II., 1123:
MEYRICK, in _Dict. Christ. Ant._, II, 1100; _Hard.
Concil._, tom. vi, 1052; vii, 1111. "The eastern church has
never forbidden marriage before ordination to its presbyters,
and has never laid upon them the burden of abstinence from their
wives; and there is no doubt that the eastern discipline in this
respect was the discipline of the whole of the early church."
But eventually, in the East as well as the West, bishops were
forbidden to have wives: MEYRICK, _op. cit._, 1098,
1099, where the sources are cited on the whole subject of
the rise of celibacy. _Cf._ ZHISHMAN, _Das Eherecht
der orient. Kirche_, 165 ff., 449 ff.; LYNDWOOD,
_Provinciale_ (ed. 1505), foll. xc-xcv; LINGARD,
_Hist. Anglo-Saxon Church_, I, 156 ff.; KEMBLE,
_Saxons_, II, 439 ff.; SCHULTE, _Der Cölibatszwang_,
5 ff.; _Recherches phil. et hist. sur le célibat_, 147 ff.;
LEA, _Sacerdotal Celibacy_, 59 ff.; THWING,
_The Family_, 74 ff.; GAGE, _Woman, Church, and State_,
49 ff., 55 ff.; NISBET, _Marriage and Heredity_, 44 ff.
[1037] Citing AUGUSTINE, _Serm._ ix, li, _Op._, tom.
v, pp. 88, 345, ed. MIGNE. Augustine's view is that of
the earlier Fathers; see the references in n. 2, p. 325, above,
to which many more might be added. _Cf._ ESMEIN, _Le
mariage en droit canonique_, I, 83-87; THEINER, _Die
Einführung der erz. Ehelosigkeit_, I, 23 ff. (teachings of the
"heretical sects"), 81 (teachings of the "Fathers"); _Recherches
phil. et hist. sur le célibat_, 177 ff. (doctrines of the early
"heretics").
[1038] In the _Stromata_, c. xxiii: _Ante-Nicene Fathers_, II,
378, CLEMENT OF ALEXANDRIA approaches the loftier view
of marriage. "Philosophers" are "to take advantage of marriage
for help in the whole of life, and for the best self-restraint."
It is a "sacred image;" and "every foul and polluting practice"
must be purged away from it.
[1039] MEYRICK, in _Dict. Christ. Ant._, II, 1198. The
early theological conception of marriage is much lower than
that of the mature Roman law: "Nuptiae sunt conjunctio maris
et feminae et consortium omnis vitae, divini et humani juris
communicatio": MODESTINUS, in _Digest_, xxiii, tit. 2,
l. 1: _Corpus juris civilis_, I, 295. _Cf._ FREISEN,
_Geschichte des can. Eherechts_, 22. As if to emphasize the
paradoxical nature of the prevailing dogma, the Council of Trent
anathematizes those who say "that matrimony is not truly and
properly one of the seven sacraments;" as well as those who say
"that the marriage state is to be placed above the state of
virginity, or of celibacy, and that it is not better and more
blessed to remain in virginity, or in celibacy, than to be united
in matrimony."--WATERWORTH, _Canons and Decrees_, 194,
195. The Reformation Fathers constantly reproach their Roman
antagonists with this anomaly and with having debased the state
of marriage which is right for all according to the law of God
and nature: see the Parker Society collection of the _Works
of Fathers and Early Writers of the Reformed English Church_,
General Index, at "Marriage," 515-17. _Cf._ the curious book of
MADAN, _Thelyphthora, or a Treatise on Female Ruin_
(2d ed., London, 1781), who endeavors to show that sacerdotal
celibacy, the theory of impediments, and the invention of the
sacrament of matrimony have lowered the ideal of marriage which
is an institution divinely ordained for all men. He brings
together in convenient form for reference a mass of extracts from
the teachings of the Fathers, the papal and conciliar decrees,
the utterances of the schoolmen, and other sources.
But, in spite of theology and priestly asceticism, there is
little doubt that the loftier ideals and the gentler affections
which we now associate with wedded life were beginning to make
themselves felt in the early Christian family; just as despite
the licentiousness found in the imperial and noble circles of the
capital, most observed and doubtless exaggerated by historian and
satirist, and notwithstanding the surviving coldness[1040] of the
patriarchal age, the same ideas and sentiments, independently of
Christian influences, must already have been springing up among the
common people of the provinces, and presently in the Stoic families
of the Antonine era were to reach a splendid development worthy of
the days in which we live.[1041] It is doubtless true, as so often
urged, that there is a bright side to the history of celibacy.
Incidentally the monk organized schools, taught the barbarous tribes
the dignity of labor, demonstrated the power of industry,[1042] and
handed down to the men of the Renaissance some of the materials
of classic learning. So, likewise, the convent afforded an outlet
for the energy and the ambition of woman. Here in a large measure
she enjoyed independence and could assert her individuality. "For
the convent accepted the dislike women felt to domestic subjection
and countenanced them in their refusal to undertake the duties
of married life." The "outward conditions of life were such that
the woman who joined the convent made her decision once for all.
But provided she agreed to forego the claims of family and sex,
an honorable independence was secured to her, and she was brought
into contact with the highest aims of her age. At a period when
monasteries, placed in the remote and uncultivated districts,
radiated peace and civilization throughout the neighborhood, many
women devoted themselves to managing settlements which, in the
standard they attained, vied in excellence with the settlements
managed by men." "The career open to the inmates of convents
both in England and on the continent," continues Eckenstein, in
summarizing the results of her valuable researches, "was greater
than any other ever thrown open to women in the course of modern
European history."[1043] Still, granting all that can be said for
the conventual life, the motives which sustained it only throw
into bolder relief the social evils of the age and the low ideal
of marriage fostered by asceticism itself. History all too plainly
shows that the benefits conferred by monasticism and the enforced
celibacy of the secular clergy come far short of balancing the
evils flowing from the conception of wedlock as a "remedy for
concupiscence." The influence of the church did, indeed, tend to
condemn the breach of conjugal fidelity by the husband as equally
sinful with that of the wife; although this righteous principle has
by no means always been observed in Christian legislation. On the
other hand, celibacy bred a contempt for womanhood and assailed
the integrity of the family.[1044] The gross immorality of the
mediaeval clergy, regular and secular, and the shocking abuses of
the confessional have often been recorded and fortunately need not
here be dwelt upon.[1045]
[1040] FARRAR, _Seekers after God_, 10 ff.
[1041] CAPES, _Early Empire_, 223 ff., discusses the
exaggeration of the satirists; and in his _Age of the Antonines_,
85, 86, 89, 90, 117 ff., he describes the family life of Marcus
Aurelius and analyzes his meditations.
[1042] TAINE, _Ancient Régime_, 1-5.
[1043] ECKENSTEIN, _Woman under Monasticism_, 5,
478. This important and very interesting book throws much new
light on the position of woman in the Middle Ages. The convent
was a refuge from the "tyranny" of the family; and the author
believes that the desire for independence was a survival of the
"mother-age." The woman saint is thus a successor of the "tribal
goddess" and the "heathen prophetess."
[1044] The doctrine that woman was the cause of the "original
sin" arose among the early fathers of the church, and it was well
established by the time of Augustine. At the Council of Macon
(585) the question, "Does woman possess a soul?" was seriously
discussed. "Upon one side it was argued that woman should not be
called 'homo;' upon the opposite side that she should, because,
_first_, the Scriptures declared that God created man, male and
female; _second_, that Jesus Christ, son of a woman, is called
the son of man. Christian women were therefore allowed to remain
human beings in the eyes of the clergy, even though considered
very weak and bad ones."--GAGE, _Woman, Church, and
State_, 56.
Nevertheless for many this problem remained for centuries a topic
for theological debate. In 1595 appeared ACIDALIUS'S
_Disputatio nova contra mulieres, qua probatur eas homines
non esse_. In the same year it was republished, with an
answer, by SIMON GEDDICUS under the common title,
_Disputatio perjucunda, qua anonymus probare nititur mulieres
homines non esse: cui opposita est Simonis Geddici sacros.
theologiae doctoris defensio sexus muliebris_ (editio novissima,
Hagae-Comitis, 1644). At the end Simon writes: "Scriptum Halae
Saxonum, 10. Februarii, Anno Filii Dei nati, Hominis veri, ex
Maria Virgine, homine vera, 1595."
Still later (1667) FEYERABEND, _De privilegiis mulierum_
(3d ed., Jena, 1672), 2-5, starts with the inquiry, "an mulieres
sint homines?"
[1045] For details consult THEINER, _Die Einführung
der erz. Ehelosigkeit_, I, 44 ff., 54-60, 167 ff., 239, 296,
_passim_; II, 183-209; III, 96-148 (contemporary evidence for
the period 1448 to the Reformation), 305 ff. (influence of the
Jesuits on morals); LEA, _Sacerdotal Celibacy_, 78
ff., 109 ff., 115 ff., 129, 135 ff., 161-77, 330-61, 566-80
(abuse of the confessional, especially since the Council of
Trent), 631 ff.; _idem_, _Hist. of Auricular Confession_,
I, 378-400 (solicitations), 240 ff., 261, 272, 426 ff.;
LECKY, _Hist. of European Morals_, II, 120 ff., 148
ff., 316-72; HUTH, _Marriage of Near Kin_, 108 ff.; the
vigorous arraignment of the church and the canon law for their
alleged degrading influence on woman by GAGE, _Woman,
Church, and State_, 49 ff., 113 ff., 152 ff.; and _idem_, in
_Hist. of Woman Suffrage_, I, 753-99. For the opposite view
read _Christian Marriage_, by REV. WILLIAM HUMPHREY, S.
J.; ZIMMERMANN, _Der Priester-Cölibat_, 11 ff.;
GIDE, _La femme_, 169-82; and compare THWING,
_The Family_, 45 ff.; _Letters on the Const. Celibacy of the
Clergy_, 266 ff., 294 ff.; and BOUVET, _De la confession
et du célibat des prêtres_, 195-238, containing extracts from
BURCHARD'S _Decretorum_, showing the abominable
questions put to women. For the literature relating to celibacy
(to 1887) see especially ROSKOVÁNY'S _Coelibatus et
breviarium_ (13 vols., 1861-88), enumerating 6,785 books,
essays, and articles on the subject, of which (according to
THEINER, _op. cit._, III, 379) 3,285 are antagonistic.
We may next consider the second member of the paradox, the dogma
which constitutes the very basis of the canon law of marriage and
the source of manifold hardships and confusion. By the second half
of the twelfth century the doctrine that marriage is a sacrament
was thoroughly established in the western church.[1046] The early
Christian teachers had, indeed, regarded it as one of the many holy
"mysteries" to which the name "sacrament" was given.[1047] But it
was long before any of these were differentiated as distinct rites
superior to the rest in religious efficacy. Not until 1164, in the
fourth book of Peter Lombard's _Sentences_, do we find the first
clear recognition of the "seven sacraments," among which that of
marriage appears;[1048] and these were approved by The Council of
Florence in 1439 and later by the Council of Trent.[1049] The theory
of the sacramental character of wedlock had two consequences of
vast importance for the history of matrimonial law. First is the
dogma of the indissolubility of the marriage bond, involving the
whole problem of separation and divorce, which must be reserved for
discussion in another chapter;[1050] and, second, the exclusive
jurisdiction of the church in matrimonial causes.[1051] This
ecclesiastical function, like so many others, is of slow growth.
"We are here confronted by a conception which certainly does not
belong to the primitive sources. It is not by a revindication of
principles that the church conquers jurisdiction in marriage. After
having shared it with the state for centuries, she obtained it
in the Middle Ages without partition;" and "when her competence
was well established and a theory for it was required, it was
justified by saying that the church alone could take cognizance of
sacraments;" and "at the Council of Trent when this jurisdiction was
solemnly affirmed in a canon sanctioned by anathema, the majority
of the orators brought it expressly into connection with the
sacrament."[1052] In England between the seventh and the twelfth
centuries the ecclesiastical authority in matrimonial questions was
slowly established. Gregory writes to Augustine concerning forbidden
degrees.[1053] Later Theodore regulates marriage and divorce.[1054]
"When the conqueror had paid the debt that he owed to Rome by a
definite separation of the spiritual from the lay tribunals,[1055]
it cannot have remained long in doubt that the former would claim
the whole province of marriage law as their own. In all probability
this claim was not suddenly pressed; the _leges Henrici_[1056]
endeavor to state the old law about adultery; the man's fine goes to
the king, the woman's to the bishop; but everywhere the church was
beginning to urge that claim, and the canonists were constructing an
elaborate jurisprudence of marriage. By the middle of the twelfth
century, by the time when Gratian was compiling his concordance of
discordant canons, it was law in England that marriage appertained
to the spiritual forum."[1057] From the time of Glanville the
"marriage law of England was the canon law."[1058]
[1046] Thoroughly to appreciate the nature of the controversy
over the sacramental nature of marriage the writings of the
Reformation Fathers should be studied. See General Index to
the Parker Society publications; and _cf._ MADAN'S
_Thelyphthora_, already mentioned.
[1047] The early Fathers render the Greek μυστήριον by
_sacramentum_, which is defined by St. Augustine as "the visible
form of invisible grace," or "a sign of a sacred thing";
_Encyc. Brit._, XXI, 131. _Cf._ also FRIEDBERG,
_Eheschliessung_, 153, 154; FREISEN, _Geschichte des
can. Eherechts_, 29 ff.; ZHISHMAN, _Das Eherecht der
orient. Kirche_, 124 ff.; OSWALD, _Die dogmat. Lehre
von den heil. Sakramenten_, I, 25 ff.; PERRONE, _De
mat. christ._, I, 1-21; SCHULTE, _Lehrbuch_, 349;
RICHTER, _Lehrbuch_, 1044, 1045; THWING,
_The Family_, 81; and the monograph of BAIER, _Die
Naturehe in ihrem Verhältniss zur christlich-sakramentalen Ehe_;
AMAT, _Treatise on Matrimony_, 3 ff.
[1048] See the incunabula edition of PETRUS LOMBARDUS,
_Textus sententiarum_ (1488). _Cf._ MADAN,
_Thelyphthora_, III, 262; NISBET, _Marriage and
Heredity_, 46; FREISEN, _Geschichte des can.
Eherechts_, 34 ff.; OSWALD, _Die dogmat. Lehre von
den heil. Sakramenten_, I, 29; II, 458 ff.; CIGOI,
_Unauflösbarkeit_, 107 ff.; PERRONE, _De mat. christ._,
I, 22 ff.
[1049] _Encyc. Brit._, XXI, 132; WATERWORTH, _Canons and
Decrees_, 193-96.
[1050] See chap. xi, below.
[1051] For the growth of ecclesiastical jurisdiction in the West
see ESMEIN, _Le mariage en droit canonique_, I, chap. i.
[1052] _Ibid._, 73, 74, where the sources are cited;
WATERWORTH, _Canons and Decrees_, 196.
[1053] HADDAN AND STUBBS, _Councils_, III, 20.
[1054] _Ibid._, 199-202.
The theories adopted and developed by the canonists favor the
forming of marriages. "All those are urged to marry who are unable
to bear the superior state of virginity or continence and who
are not restrained by solemn vows." Consequently the canon law
"renders the formation of marriage as easy as it had rendered its
dissolution difficult."[1059] At first, as already explained, it
adopted the Roman betrothal, which possessed no legal significance,
the marriage beginning with the nuptials or actual living together.
Later it accepted the principles of Germanic custom, according to
which the legal effects of betrothal became far more stringent, and
the marriage was perfected at the nuptials or tradition, and not
through the _Beilager_, or physical union. Hence by the mediæval
canon law, if the nuptials were solemnized by priestly benediction,
though not followed by _copula_ or physical union, a marriage was
formed which could not be annulled by means of subsequent espousals
thus consummated.[1060] Gradually, however, as the betrothal gained,
the nuptials lost, in importance. Before the middle of the twelfth
century the doctrine prevailed that the _copula carnalis_ is the
supreme legal moment in marriage.[1061] This theory, which had
arisen with Hincmar of Rheims,[1062] is especially associated with
the name of Gratian, in whose _Decretum_ the arguments for and
against it are weighed, with the result of its practical acceptance,
though he tries to reconcile it with the Roman view, that the
nuptial _consensus_ constitutes the marriage.[1063] According to
him, there are two degrees in marriage: one is the _conjugium
initiatum_, arising in the simple consent of the espoused; second,
the _conjugium ratum_, created by the _copula carnalis_ and
perfecting the former. The _conjugium initiatum_ may be dissolved at
pleasure; but the _conjugium ratum_ is indissoluble. Thus the former
is merely the Roman betrothal under another name. But the Bolognese
jurists made it more stringent, assigning eight reasons for which
alone such a marriage could be dissolved.[1064]
[1055] On the separation of the lay and spiritual jurisdictions
see STUBBS, _Const. Hist._, I, 300, 307; _idem_,
_Select Charters_, 85; _idem_, _Lectures_, 300. SCHMID,
_Gesetze_, 357, and THORPE, _Anc. Laws_, II, 213,
give William's law, the date of which is unknown. See also
MAKOWER, _Const. Hist. of English Church_, 465, 466, 392
ff.
[1056] _Leges Henrici Primi_, 11, § 5.
[1057] POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
365. The _Concordia discordantium canonum_, or Decree of Gratian,
comprises the first volume of RICHTER AND FRIEDBERG'S
fine edition of the _Corpus juris canonici_ (Leipzig, 1879). The
bringing together of the scattered rules of the ecclesiastical
authorities by Ivo of Chartres in the reign of Henry I., and
especially by Gratian (1151), was of vast importance in building
up the ecclesiastical jurisdiction. On the history of the
canon law see STUBBS, _Lectures_, 292-333; _idem_,
_Const. Hist._, I, 308 ff.; DODD, _Hist. Canon Law_,
150 ff., 161 ff.; BLACKSTONE, _Commentaries_, I, 14,
15, 19; ESMEIN, _Le mariage en droit canonique_,
I, 3 ff., 56 ff., 108 ff. The best account of the rise and
jurisdiction of ecclesiastical courts in England will be found in
MAKOWER, _Const. Hist. of Eng. Church_, 384-464.
[1058] POLLOCK AND MAITLAND, _op. cit._, II, 365, 366;
GEARY, _Marriage and Family Relations_, 1 ff.
[1059] ESMEIN, _op. cit._, I, 85.
[1060] This is the view established by SOHM,
_Eheschliessung_, particularly 120 n. 22, 151 n. 89. Compare
SEHLING, _Unterscheidung der Verlöbnisse_, 1 ff., 14
ff., 34 ff.; SCHEURL, _Kirch. Eheschliessungsrecht_, 35
ff.
[1061] SOHM, _op. cit._, 150-52; _idem_, _Trauung und
Verlobung_, 61 ff.; FRIEDBERG, _Eheschliessung_, 209;
ESMEIN, _op. cit._, I, 83. RIEDLER, _Bedingte
Eheschliessung_, 15 ff., discusses the different views as to
the relation of _consensus_ and the _copula carnalis_, in
connection with the sacramental nature of marriage. See also
FREISEN, _Geschichte des can. Eherechts_, 151 ff., 164
ff., on the whole subject.
[1062] SEHLING, _Unterscheidung der Verlöbnisse_, 33-59.
[1063] GRATIAN, _Decreti sec. pars. causa_ xxvii,
quest. ii, c. 16 ff.: RICHTER AND FRIEDBERG, _Corpus
juris canonici_, I, 1069 ff. _Cf._ ESMEIN, _op.
cit._, I, 97-119; SOHM, _Eheschliessung_, 111 ff.;
FREISEN, _op. cit._, 164 ff.; SCHEURL,
_op. cit._, 58-75; SEHLING, _op. cit._, 81 ff.;
HEUSLER, _Institutionen_, II, 290; DIECKHOFF,
_Die kirch. Trauung_, 115 ff.
[1064] On the whole subject see ESMEIN, _op. cit._, I,
97-119.
The theory of the classic canon law, formulated by Gratian,
that there is no marriage "until man and woman have been one
flesh,"[1065] does not receive so much emphasis in any other legal
system.[1066] It had far-reaching consequences in matrimonial
jurisprudence.[1067] Marriage became a simple consensual compact.
"In strictness of law all that was essential was this physical
union accompanied by the intent to be thenceforth husband and
wife. All that preceded this could be no more than an espousal
(_desponsatio_) and the relationship between the spouses was one
which was dissoluble; in particular it was dissolved if either of
them contracted a perfected marriage with a third person."[1068]
[1065] POLLOCK AND MAITLAND, _op. cit._, II, 366.
[1066] ESMEIN, _op. cit._, I, 83. Esmein traces the
origin of this doctrine of the canonists in part to the influence
of the "popular" or "naturalistic" view of marriage; in part
to certain texts of the Old and New Testament (particularly
Gen. 2:23, 24; 1 Cor. 16:16): and in part to the conception of
marriage as a remedy for concupiscence: _op. cit._, 83, 84, 97
ff. _Cf._ POLLOCK AND MAITLAND, _op. cit._, II, 367 n.
1; FREISEN, _op. cit._, 173.
[1067] It affected the "théorie de la formation et de la
dissolution du mariage, théorie de la nullité pour cause
d'impuissance, théorie de l'affinité, théorie des droits et des
devoirs des époux."--ESMEIN, _op. cit._, I, 83.
[1068] POLLOCK AND MAITLAND, _op. cit._, II, 366.
But before the close of the twelfth century theological subtlety had
conceived and gained the acceptance of a distinction in the forms
of contract which was fatal to the security of the marriage bond.
The famous classification of contracts as _sponsalia per verba de
praesenti_ and _sponsalia per verba de futuro_, though its principle
was earlier asserted, is due mainly to Peter Lombard;[1069] and
through the influence of Alexander III. ("Magister Rolandus") it
was accepted generally by the western church.[1070] The theory of
Lombard represents the triumph of Gallic theology over the doctrine
of Gratian, as maintained by the Italian jurists; and, in effect,
it is an attempt to combine the principles of the Roman with those
of the German--that is to say, the canonical--betrothal.[1071] In
_sponsalia de praesenti_, in words of the present tense, the man
and woman declare that they take each other now, from this moment
onward, as husband and wife. Such a contract is a valid marriage,
though not followed by actual wedded union; and since in theory it
is a real marriage, it is necessarily sacramental in character.
It creates a bond which can be dissolved only with the greatest
difficulty. It constitutes "at all events an initiate marriage; the
spouses are _coniuges_; the relationship between them is almost as
indisseverable as if it had already become a consummate marriage.
Not quite so indisseverable however; a spouse may free himself or
herself from the unconsummated marriage by entering religion, and
such a marriage is within the papal power of dispensation."[1072]
But even the unconsummate marriage _de praesenti_ cannot be
dissolved by a subsequent marriage which either party may contract,
though followed by wedded union.[1073] Espousals _de futuro_, on the
other hand, are a promise for future joining in marriage. Physical
union when preceded by such a contract is held to constitute a
binding marriage. The canonists went farther than this, as Esmein
declares, and "in a way set a snare for human nature to beguile
the imprudent into the matrimonial state" through the theory of
"presumptive marriage." The _copula carnalis_ was made a legal
ground for assuming the foregoing promise to wed. "The rule was
laid down that it is always necessary to judge in favor of marriage
unless the contrary be clearly understood."[1074] Moreover, the
church steadily refused to make the validity of marriage depend upon
forms and conditions such as the civil law prescribes. There was
no absolute requirement of parental consent[1075] or of a certain
age. All persons on reaching the years of puberty were declared
capable of wedlock solely on their own authority. No religious
ceremony, no record, or witness was essential. The private, even
secret, agreement of the betrothed, however expressed, was declared
sufficient for a valid contract.[1076] All these things might be
enjoined under sanction of severe discipline for their neglect; but
the marriage, if formed without them, was not the less binding. A
puzzling and disastrous antagonism between _legality_ and _validity_
was thus created. Even the Council of Trent, while making the
validity of the marriage depend upon its conclusion in the presence
of a priest and two or three witnesses, declined to go farther and
give an equal sanction to banns, registration, or the benediction,
though these were enjoined in its decree. After the council as
well as before children barely arrived at the age of puberty might
contract a valid marriage without the consent, or even against
the will, of their parents.[1077] In short, as Esmein has so well
shown, lest without a safety-valve the temptations of the flesh
should become too strong for weak human nature, and lest access to
a sacrament should be hindered, it was deemed necessary to discard
all restraints originating in mere "human convention."[1078] It is
a noteworthy fact that the dogma of marriage as a sacrament came
near being a fatal obstacle in the way of the action of the Council
of Trent against secret marriages.[1079] For how could the church
legislate concerning a holy mystery which Christ himself had given
her, without suggesting the human nature of the matrimonial contract
and by implication admitting the right of the state to exercise a
similar control? But even in this domain her exclusive jurisdiction
was affirmed.
[1069] Peter Lombard (d. 1164) was a professor in the University
of Paris, and later was ordained a bishop: _cf._ SOHM,
_Eheschliessung_, 121 ff.; ESMEIN, _op. cit._, I,
119 ff. His theory is set forth in the _Sententiae_, lib. iv,
dist. 27, 28: "Efficiens autem causa matrimonii est consensus,
non quilibet, sed per verba expressus: nec de futuro sed de
praesenti. Si enim consentiunt in futurum, dicentes, Accipiam te
in virum, et ego te in uxorem, non est iste consensus efficax
causa matrimonii": dist. 27, § 3. "Consensus, id est pactio
conjugalis, matrimonium facit, et extunc est conjugium etiamsi
non praecessit, vel secuta est copula carnalis": dist. 27,
§ 4. The _consensus_, if expressed by a verb of the present
tense, _accipio te_, constitutes a valid marriage without
_copula_. Opposed to this is a promise, expressed by a verb in
the future tense, _accipiam te_, which is binding only when
followed by _copula_. Compare TANCRED, _Summa de
mat._, 3 ff.; and see the masterly discussion of the history of
the distinction, in SOHM, _op. cit._, chap, iv, and
his _Trauung und Verlobung_, 73-109. _Cf._ SCHEURL,
_Kirch. Eheschliessungsrecht_, 76 ff.; DIECKHOFF, _Die
kirchl. Trauung_, 115 ff.; SEHLING, _Unterscheidung der
Verlöbnisse_, 72 ff., 115 ff.; FREISEN, _Geschichte des
can. Eherechts_, 179 ff., 205 ff.; KENT, _Commentaries_,
II, 87; BISHOP, _Marriage, Divorce, and Separation_,
I, §§ 313 ff., 353 ff.; FRIEDBERG, _Eheschliessung_,
203, 206; STEPHENS, _Laws of the Clergy_, I, 672
ff.; especially POLLOCK AND MAITLAND, _Hist. of Eng.
Law_, II, 366 ff.; ESMEIN, _op. cit._, I, 119-37;
SALIS, _Die Publikation des trid. Rechts_, 2, 3.
[1070] SOHM, _Eheschliessung_, 124 ff.
[1071] This is proved by SOHM, _op. cit._, chap,
iv; _idem_, _Trauung und Verlobung_, chap, iii; and by
ESMEIN, _op. cit._, I, 119-37.
Magister Vacarius, who lived in England _ca._ 1148-98 and
probably taught law at Oxford, has a theory differing from
that of Gratian or Lombard. According to him, the "true act of
marriage, the act which marks the moment at which the marriage
takes place, is the mutual delivery (_traditio_) of man and woman
each to each. Of course as a condition there must exist a pact
of the appropriate kind.... Again, as a condition there must be
the natural power of effecting a carnal union; but the _carnalis
copula_ is unessential." The marriage is _made_ by the tradition:
MAITLAND, "Magistri Vacarii summa de matrimonio,"
_Law Quart. Rev._, XIII, 136-38. In the same volume, 270-87,
MAITLAND publishes the text of the Summa.
On the two kinds of canonical _sponsalia_ see the dissertations
described in Bibliographical Note VIII.
[1072] POLLOCK AND MAITLAND, _op. cit._, II, 366.
[1073] This doctrine was already sanctioned by Innocent III.
(1130-43): ESMEIN, _op. cit._, I, 126.
[1074] ESMEIN, _op. cit._, I, 85. _Cf._ POLLOCK AND
MAITLAND, _op. cit._, II, 366.
[1075] The effect of this neglect on clandestine marriage is
forcibly described by LUTHER, _Tischreden_, foll. 355,
356. "Dass aber die Juristen fürgeben und anziehen den Canon,
und sagen: Dass der Eltern Autoritet, Rath, und Will wol Ehren
halben möge dabey sein, aber nicht auss not, dass es also sein
müsste, denn die Bewilligung derer, die mit einander wollen
Ehelich werden, ist die Substantz, die nötig ist. Der Eltern will
aber ist ein _accidens_, ein zufellig ding, das nur Erbarkeit und
Ehrenhalben geschieht, macht aber noch hindert nicht die Ehe.
"Es ist ein Gottloser Canon, und der Canonisten wahn wider Gott,
gleich als ein Buler, der in der ersten Brunst und unsinnigkeit
daher gehet, nicht viel nach Erbarkeit fragt. Also gehet der
Eltern autoritet, ansehen, gewalt, und gehorsam zu Boden."
On the marriage of minors see SELDEN, _Uxor ebraica_,
99-104; _Opera_, III, 605-8; MORGAN, _Marriage,
Adultery, and Divorce_, I, 283 ff.; LAUGINGER, _De
consensu parentum_, quaest. viii ff.; LOHEN, _De
parentum ad nuptias a liberis contrahendas consensu_ (Regiomonti,
1685).
[1076] On the lack of prescribed conditions see ESMEIN,
_op. cit._, I, 149 ff.; FREISEN, _Geschichte des can.
Eherechts_, 307-29.
[1077] SALIS, _Die Publikation des trid. Rechts_,
14, 15, 31 ff.; FRIEDBERG, _Eheschliessung_, 103,
122, 123; FLEINER, _Die trid. Ehevorschrift_, 3;
WATERWORTH, _Canons and Decrees_, 196 ff., ccxxvi ff.
[1078] ESMEIN, _op. cit._, I, 85, 86; POLLOCK AND
MAITLAND, _op. cit._, II, 367-72; SALIS, _op.
cit._, 3, 4.
[1079] _Ibid._, 44-47, notes, where the evidence is collected
from the sources. _Cf._ also RIEDLER, _Bedingte
Eheschliessung_, 12, 18 ff.; ESMEIN, _op. cit._, I,
78 ff.; II, 159 ff.; FRIEDBERG, _op. cit._, 109;
WATERWORTH, _op. cit._, pp. ccxxv ff., 193-96.
II. CLANDESTINE MARRIAGES THE FRUIT OF THE CANONICAL THEORY
The way was thus cleared for clandestine marriages. All efficient
restraints upon hasty unions were rejected; and often it became
impossible for the courts or even the parties themselves to know
whether a man and a woman were legally husband and wife or their
children legitimate. Seldom have mere theory and subtle quibbling
had more disastrous consequences in practical life than in the
case of the distinction between _sponsalia de praesenti_ and _de
futuro_. The difference was not essential, but purely verbal.[1080]
The canonist had before his mind the tense inflections of a Latin
verb. He insisted on a distinction which found no place in popular
ideas and which the usages of popular speech refused to observe. In
the English as well as the German idiom the contrast between the
present and the future tense is not always sharply defined.[1081]
This anomaly is described by Martin Luther in his usual trenchant
style. "They have played a regular fool's game," he says, "with
their _verbis de praesenti vel futuro_. With it they have torn apart
many marriages which were valid according to their own law, and
those which were not valid they have bound up.... Indeed I should
not myself know how a churl ... would or could betroth himself _de
futuro_ in the German tongue; for the way one betroths himself means
_per verba de praesenti_, and surely a clown knows nothing of such
nimble grammar as the difference between _accipio_ and _accipiam_;
therefore he proceeds according to our way of speech and says: 'I
will have thee,' 'I will take thee,' 'thou shalt be mine.' Thereupon
'yes' is said at once without more ado."[1082]
[1080] SOHM, _Eheschliessung_, 133 ff.; _idem_,
_Trauung und Verlobung_, 1 ff., has demonstrated that in
their "content" the two kinds of _sponsalia_ are identical;
the one is no more nor less a betrothal than the other, each
looking to a subsequent perfected marriage. The distinction
is not "eine Unterscheidung verschiedener Thatbestände,
sondern nur eine verschiedene rechtliche Behandlung desselben
Thatbeständes."--_Eheschliessung_, 137. The differences in tense
were arbitrarily made to have different legal consequences.
On the controversy as to the legal significance of the two kinds
of _sponsalia_ with Sohm compare SCHEURL, _Kirch.
Eheschliessungsrecht_, 76-107; _idem_, "Zur Geschichte des kirch.
Eheschliessungsrechts," _ZKR._, XV, 65-92, who agrees with
Sohm that both species of _sponsalia_ are forms of betrothal
(_Verlobungen_), but insists that they have different legal
consequences. This article is criticised by BIERLING,
"Kleine Beiträge," _ZKR._, XVI, 288-316; who is answered by
SCHEURL, "Consensus facit nuptias," _ibid._, XXII,
269-86. See also DIECKHOFF, _Die kirch. Trauung_, 115
ff.; SEHLING, _Unterscheidung der Verlöbnisse_, 40 ff.,
60 ff., 72 ff.; LYNDWOOD, _Provinciale_ (Oxford, 1679),
lib. quart., tit. I, 270, 271; SANCHEZ, _Disputat. de
s^{to}. mat. sac._, I, 3-220; SELDEN, _Uxor ebraica_
(ed., 1673), 92 ff., or _Opera_, III, 599 ff.
[1081] "Es kam hinzu, das der Gegensatz der Zeitform in der
deutschen Sprache regelmässig überhaupt unerkennbar war, denn
zu deutsch heisst es nicht: 'ich nehme dich,' noch: 'ich werde
dich nehmen,' sondern 'ich will dich nehmen.'"--SOHM,
_Eheschliessung_, 135.
[1082] "Ja, ich wüsste selbs nicht wol, wie ein Knecht oder Magd
sollten oder kunnten in deutscher Sprache _per verba de futuro_
sich veloben; denn wie man sich verlobet, so laut's _per verba de
praesenti_, und sonderliche weiss der Posel von solcher behender
Grammatica nichts, dass _accipio_ und _accipiam_ zweierlei
sei; er führet daher nach unserer Sprachen Art und spricht:
'Ich will Dich haben,' 'ich will Dich nehmen,' 'Du sollt mein
sein,' etc. Da ist die Stunde ja gesagt ohn weiter Aufzug oder
Bedenken."--LUTHER, "Von Ehesachen," _Werke_ (Erlangen
ed.), XXIII, 102, 103; also in _Bücher und Schriften_ (Jena,
1561), V, 240, 241; and in STRAMPFF, 318, 319. This
whole interesting passage, of which a portion is translated in
the text, is given by SOHM, _Eheschliessung_, 139; and
by FRIEDBERG, _Eheschliessung_, 206, 207. _Cf._ also
LUTHER'S _Tischreden_ (Frankfort ed., 1571), c. 36, p.
356. Luther's view is accepted by SCHEURL, _Das gemeine
deutsch. Eherecht_, 64; and SALIS, _Die Publikation des
trid. Rechts_, 3.
That German rustics were not the only lovers caught in the meshes of
grammatical forms appears from the following passage written toward
the close of the Tudor period by Swinburne, who nevertheless defends
the canonical distinction, whether the contract be made in the Latin
or in the vulgar tongue.[1083] After refuting, as he believes, the
reasoning of those who hold that the forms "I will take thee to my
wife" ("_Ego volo te accipere in uxorem_") and "I do take thee to my
wife" ("_Ego accipio te in uxorem_") are equally a contract in the
present tense, he proceeds to attack the argument "drawn from the
Simplicity of the Vulgar sort, who albeit they intend to tye such a
Knot as can never be loosed, and make the Contract so sure as it may
never be dissolved; yet such is their unskilfulness and ignorance
herein, that they cannot frame their words to their minds, nor know
whether it be all one to say 'I will take thee to my wife' or 'I do
take thee to my wife,' much less do they know the difference betwixt
these words, 'I will marry thee' and 'I will have thee to my wife,'
or betwixt these words, 'I will take thee to my wife' and 'I will
hold thee for my wife,' or betwixt these words, 'I will espouse
thee' and 'I will intreat thee as my wife,' or betwixt these words,
'I will Contract Matrimony with thee' and 'I will provide for thee
as my Wife,' or betwixt these words, 'I will make thee my wife' and
'thou shalt be my Wife,' with an hundred such differences wherein
appeareth no dissimilitude. And therefore, since it is the very
Consent of Mind only which maketh Matrimony, we are to regard not
their Words, but their Intents, not the formality of the Phrase, but
the drift of their Determination, not the outward sound of their
Lips, which cannot speak more cunningly, but the inward Harmony
or Agreement of their Hearts, which mean uprightly." Otherwise,
especially in case of people of the "ruder sort, whose Sayings are
to be expounded with all favour to the furtherance of Matrimony,"
if "we shall curiously descant upon every word proceeding from a
simple Conceit, we cannot but miss of their meanings, and with our
fine and dainty Distinctions (which never came within the compass
of their gross Understandings) incumber the Consciences of them
which be coupled.... Lest therefore any Man's Conscience (through
ignorance of Terms) might be intangled in the Snares of this subtle
and more captious Distinction of 'I will' and 'I do' with the rest
of the Differences more subtle and more captious, ... are the same
to be rejected, and this reasonable and conscionable Conclusion
received ... where two intend to Contract Spousals _de praesenti_,
there is Matrimony always contracted, although the words import but
future Consent only."[1084] Time has approved the soundness of this
plea, in spite of the remonstrance of Swinburne and the logic of the
worthy doctors whom he cites.
[1083] SWINBURNE, _Of Spousals_, 55-73, gives a most
interesting discussion of the verbal difficulties arising in
_sponsalia de praesenti vel futuro_, comparing the legal writers
for and against the distinction.
[1084] _Ibid._, 62 ff. _Cf._ JEAFFRESON, _Brides and
Bridals_, I, 114 ff., 124-37 (on "Pre-Contracts" before and after
the Reformation).
Scholastic hairsplitting had set a veritable trap for the feet of
the unwary. "Of all people in the world lovers are the least likely
to distinguish precisely between the present and the future tenses.
In the Middle Ages marriages, or what looked like marriages, were
exceedingly insecure. The union which had existed for many years
between man and woman might with fatal ease be proved adulterous,
and there would be hard swearing on both sides about 'I will' and
'I do.'"[1085] Accordingly the ecclesiastical courts were given a
dangerous power[1086]--a perilous discretion in matrimonial causes,
which, however wisely exercised, was sure to work much hardship
and injustice. Since in substance espousals _de praesenti_ and
_de futuro_ were identical, differing only in the consequences
which the law attached to the tense form, it was inevitable that
decisions should be arbitrary and wavering; and, as a matter of
fact, practically the same form of contract was held at one time
to constitute _sponsalia de praesenti_; at another, a promise
_de futuro_;[1087] and the _Liber officialis_ of St. Andrews,
Scotland, contains the record of a divorce granted from a second
union because the man had already contracted a previous marriage
in these words: "I promyth to yow Begis Abirnethy that I sall mary
yow, and that I sall neuere haiff ane uther wiff and therto I giff
yow my fayth." It is a striking illustration of the entanglements
resulting from the canonical theory that this contract is styled
in the record "_both sponsalia de futuro_ and _praesenti_."[1088]
The worst of it was that the spiritual salvation or damnation of
the man and woman, the genuineness of whose union was in question,
depended upon the decision. The valid marriage was no less a
sacrament, though dissolved through ignorance, error, or perjury;
and the invalid marriage was no more a sacrament, though in the
same way declared binding. For by a rule of the spiritual courts,
in a suit growing out of a secret marriage, the plaintiff who
affirmed the validity of the espousals, if the fact were denied
by the defendant, had to prove his allegation. If he failed to
do so--and this might easily happen, since often the espousals
were formless and absolutely without witness[1089]--the case was
dismissed, the contract dissolved, and the parties were free to
form new marriages elsewhere. But if the secret marriage were after
all really valid, and therefore a sacrament, though not sustained
for lack of proof, the husband and wife were still bound in their
consciences; and if either should form a second union with another
person, though it were publicly solemnized in face of the church,
he would be guilty of the sin of bigamy.[1090] To the existence of
this cruel embarrassment Luther bears witness in a characteristic
passage of his _Tischreden_.[1091] "Now the pope and the jurists
say that marriage may never be dissolved. What happens? The wedded
people fall out and separate. So they come to me in the cloister or
wherever an official can be found and swear themselves apart; then
they marry again. Thereafter they come to me or to some confessor
and say: Dear sir, I have now a wife whom I espoused secretly. What
am I to do about it? Help me, dear Doctor, lest I despair. For Greta
whom I first married is my proper wife. But this Barbara whom I
espoused later is not my wife, and yet must I not sleep with her?
The former I dare not take, though I should like to have her if I
could; but I cannot for I have another wife and she likewise has
another husband; yet no one knows that she is my wife except God in
heaven. O, I shall be damned, I know not what to do!"[1092] Luther's
testimony is fully sustained by similar evidence afforded by the
proceedings and decrees of the Council of Trent.[1093]
[1085] POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
367.
The rule laid down by Anselm in 1102, already mentioned, really
invites such "hard swearing": "Promises of marriage made between
man and woman without witnesses" are to be "null if either party
deny them."--JOHNSON'S _Canons_, 11, 27. The following
is an example of what repeatedly happened in the ecclesiastical
courts: "_Omnium Sanctorum Honylane._--Thomas Potynger comparuit
coram comissario [of London] in domo officii xxii die
Augusti [1481], et prestitit juramentum, quod nunquam
contraxhit matrimonialiter cum Margareta Hudson de eadem,
ibidem presente, et confitente, quod nullum testem habuit ad
probandum contractum, et ideo commissarius remisit eos regulae
conscientiarum suarum."--HALE, _Precedents and Procds. in Crim.
Causes_, 5. For another example see _ibid._, 6.
[1086] They obtained a _Freibrief_, or license, for their
practice: SOHM, _Eheschliessung_, 138. _Cf._
FRIEDBERG, _Eheschliessung_, 16 ff., on the abuses of
matrimonial jurisdiction.
[1087] "The promise, se ducturum in conjugem, or one similar,
is conceived to be consensus de futuro in c. 5, 15, 17, 22x.
de sponsal. (4, 1); but as consensus de praesenti in c. 5x. de
sponsa duor. (4, 3)."--SOHM, _Eheschliessung_, 135 n. 51.
[1088] Ex et pro eo quia dictus David diu ante solemnizationem
dicti pretensi matrimonii ... alia sponsalia tam verba
de futuro quam de praesenti cum Margareta Abirnethy,
impressentiarum superstite, carnali copula subsecuta, contraxit,"
etc.--FRIEDBERG, _Eheschliessung_, 58; _Liber officialis
S. Andree_, 21. This book, 19, 33, 66, 73, 75, contains,
according to Friedberg, other records of marriages _de futuro_,
sometimes _copula subsecuta_, dissolved on account of later
_sponsalia de praesenti_. _Cf._ also SOHM, _op. cit._,
135.
[1089] In the spiritual courts two good witnesses were
required to establish a fact. On the "proof of marriage" see
ESMEIN, _Le mariage en droit canonique_, I, 189 ff.; II,
127 ff.; POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
382 ff.; _Law Review_ (English), I, 378 ff.
[1090] SALIS, _Die Publikation des trid. Rechts_,
6, 7; POLLOCK AND MAITLAND, _op. cit._, II, 382,
383; ESMEIN, _op. cit._, I, 189 ff.; II, 127 ff.;
FRIEDBERG, _Eheschliessung_, 102 ff.; SOHM,
_Eheschliessung_, 187 ff.
[1091] Da spricht der Papst und die Juristen, die Ehe dürfe
nimmermehr gescheiden werden. Was geschah? Die Eheleute wurden
darnach uneins und schieden sich wieder von einander. Also ging
mirs im Kloster auch; oder wo man fur den Official kam, so schwur
sich eines vom andern, freieten wieder. Darnach kamen sie zu mir
oder einem Andern in die Beichte und sprachen: Lieber Herr, ich
habe itzt eine Frau, der hab ichs heimlich gelobt; wie thue ich
ihm immermehr? Helft mir, lieber Herr Doctor, dass ich nicht
verzweifele. Denn Greta, mit der ich mich am ersten verlob hab,
ist mein recht Eheweib. Aber diese Barbara, die mir darnach
vertrawet, ist nicht mein Weib und muss doch bei ihr schlaffen?
Jene darf ich nicht nehmen, die ich doch gerne möcht haben, da es
sein könnte; aber ich kann nu nicht, denn ich habe eine Andere,
so hat sie auch einen Andern: doch weiss es Niemand, dass sie
mein Weib ist, denn allein, Gott im Himmel, dem ist bewust. O,
ich werde verdampt, ich weiss keinen Rath."--"Tischreden," in
_Werke_ (Erlang. ed.), LXII, 229; quoted also in SALIS,
7, 8, who gives other proofs; likewise in SOHM, _op.
cit._, 189, 190; FRIEDBERG, _op. cit._, 102; and
ESMEIN, _op. cit._, II, 129.
[1092] In LUTHER'S "Von Ehesachen," _Werke_ (Erlang.,
XXIII, 98), is another interesting passage forcibly describing
the danger of bigamy through the confusion wrought by
clandestine marriages. The passage is also in STRAMPFF,
_Luther: Ueber die Ehe_, 313 ff.; and it is partly quoted by
SOHM, _op. cit._, 188, 189.
[1093] RICHTER-SCHULTE, _Canones et dec. conc. trid._,
216 ff.; PALLAVICINO, _1st. conc. Trent._, IV, lib.
XXII, 1, 16; THEINER, _Acta gen. conc. trid._, II,
314, 335. Cap. 1 of the decree of the council for the reform
of marriage contains the following: "Cum sancta synodus
animadvertat prohibitiones illas propter hominum inoboedientiam
jam non prodesse, et gravia peccata perpendat, quae ex eisdem
clandestinis conjugiis ortum habent, praesertim vero eorum qui
in statu damnationis permanent, dum priore uxore cum qua clam
contraxerant, relicta cum alia palam contrahunt et cum ea in
perpetuo adulterio vivunt, cui malo cum ab ecclesia, quae de
occultis non judicat, succurri non possit, nisi efficacius
aliquod remedeium adhibeatur;" also in WATERWORTH'S
_Canons and Decrees_, 196, 197. Compare the passage on the evil
resulting from the canon law of marriage in the address with
which Hieronymus Ragazzoni opens the last or xxv. solemn session
of the council: THEINER, _Acta gen._, II, 502. See this
and other excerpts in SALIS, _op. cit._, 1, 9, _passim_.
The evil of clandestine marriages prevailed generally throughout
Christendom.[1094] The provincial church councils as well as the
temporal powers, local and national, were kept busy in devising
penalties or other restraints in the vain hope of putting a
stop to it. Such was the case in Holland, where, in spite of
the decrees of the church and the statutes of the state, secret
marriages, without the presence of witness, magistrate, or priest,
were common.[1095] The same is true of Portugal;[1096] and Pope
Alexander III. confesses that they were frequent in Italy, at
least in the bishopric of Salerno, and they gave rise to vexatious
litigation.[1097] Suits were sometimes brought to enforce an alleged
secret marriage for impure purposes. So severe were the provisions
of Swiss legislation to check this evil, toward the close of the
Middle Ages, that even the innocent were deterred from appealing
to the courts to enforce their matrimonial rights. Before bringing
suit security was required; and the unsuccessful plaintiff was
fined and compelled to pay damage.[1098] "Against a Zürich law of
this kind an official of Konstanz remonstrates, declaring that
'without doubt there are in the bishoprick of Konstanz hundreds of
persons who before the Lord God are married people, legally joined
together, and yet who are so much in dread of the penalty as not
to dare to enforce their legal rights against one another.'"[1099]
At the Council of Trent report was made of secret marriages in
Africa[1100] and the West Indies;[1101] while in Germany they gave
trouble both to the temporal and spiritual law-maker long after the
Reformation.[1102] The uncertainty and complexity of matrimonial law
bore their natural fruit in Spain[1103] and in France.[1104] It was
the king of France who through his _oratores_, or representatives,
brought before the Council of Trent the proposal which prevailed to
reform the abuse by making the validity of marriage depend upon its
public solemnization;[1105] while a measure of Alfonso the Wise of
Castile, in 1258, not only defines the well-known three kinds of
clandestine marriages, but shows clearly, what Gratian[1106] had
already pointed out, that the permanence or dissolution of such a
marriage really depends upon the will of the parties themselves,
or even one of them. "Three kinds of marriage are called 'secret;'
the first is one concluded privately and without witnesses, so that
it cannot be proved. The second is one formed before witnesses,
but without the consent of the bride's father, or mother, or other
relative in whose protection she is, and without payment of the
arrha or observing the other forms (honors) which holy church
demands. The third is one whose banns have not been published in the
parish where the parties live.... The reason why the holy church
forbids secret marriages is this: When a difference arises between
the wedded pair, and the one will no longer live with the other, the
church has no means to prevent the separation, even when in truth a
marriage exists; because it cannot be proved. For the church cannot
pass judgment on secrets; but only on the allegations of the parties
which are proved."[1107]
[1094] In general see FRIEDBERG, Index, at "Ehe,
heimliche;" SALIS, _op. cit._, 1-14; SOHM, _op.
cit._, 187 ff., 132 ff.; ESMEIN, _op. cit._, II, 121
ff.; I, 189 ff.; GEARY, _Marriage and Family Relations_,
434 ff., Index; POLLOCK AND MAITLAND, _op. cit._, II,
367 ff., 382; SCHELHAS, _De clandestinis sponsalibus
juratis_ (Jena, 1716); LYNDWOOD, _Provinciale_ (Oxford,
1679), 273 ff.; SANCHEZ, _Disputat. de s^{to}. mat.
sac._, I, 221-358. LUTHER'S "Von Ehesachen," _Bücher
und Schriften_, V, 237-57, is largely devoted to a discussion of
secret betrothals.
[1095] FRIEDBERG, _op. cit._, 66-69.
[1096] _Ibid._, 75.
[1097] SALIS, _op. cit._, 8; FRIEDBERG, _op.
cit._, 75-77.
[1098] SALIS, _op. cit._, 8, 9; _ap. Zeitschrift für
schweiz. Recht_, 1878, XX, 114 ff.
[1099] "Und ist ungezwyfelt, es sitzen im Bisthum Costanntz
hundert und aber hundert parthyen, die vor Gott dem Herrn
Eelüt sin und mit recht zusammen gewyst wurden, und doch umb
sorg des penfals einander mit gepürlichen Rechten nit thüren
fürnemmen."--SALIS, _op. cit._, 9.
[1100] See the letter of Mutio Calini to Cardinal Luigi Cornara,
July 29, 1563, in SALIS, _op. cit._, 13.
[1101] THEINER, _Acta gen._, II, 367, 513;
PALLAVICINO, _1st. conc. trid._, Vol. IV, lib. xxii, 4,
24; SALIS, _op. cit._, 12.
[1102] FRIEDBERG, _Eheschliessung_, 79, 260, 261.
[1103] _Ibid._, 71-74; SALIS, _op. cit._, 11, 12.
[1104] FRIEDBERG, _op. cit._, 62 ff., 499;
SALIS, _op. cit._, 9, 11, 12.
[1105] THEINER, _op. cit._, II, 316; SALIS,
_op. cit._, 9; FRIEDBERG, _op. cit._, 110.
[1106] "Coniugia, que (quae) clam contrahuntur, non negantur
esse coniugia, nec iubentur dissolui, si utriusque confessione
probari poterunt: uerumtamen prohibentur, quia mutata alterius
eorum uoluntate, alterius professione fides iudici fieri non
potest. Unde publice, cum alterius uota in alteram partem se
transtulerint, pro priore coniugio, quod iudici incertum est,
sentencia ferri non poterit."--GRATIAN, _Decreti sec.
pars causa_ xxx, quest. v, c. ix: RICHTER-FRIEDBERG,
_Corpus juris can._, I, 1107. The passage is also quoted from
different text by SALIS, _op. cit._, 6, who adds the
statement of the cardinal of Lothringen at the Council of Trent:
"Clandestinum matrimonium est causa disjunctionis conjugum; tales
enim cum nullos habeant testes matrimonii contracti, _pro libito_
possunt separari."--_Ap._ THEINER, _op. cit._, II, 314.
[1107] The document, of which a part is translated in the text,
will be found in FRIEDBERG, _op. cit._, 72, 73. On the
kinds of clandestine marriage see SALIS, _op. cit._,
5, 6; BOHN, _Pol. Cyc._, III, 320; ESMEIN,
_Le mariage en droit canonique_, I, 181 ff.; LYNDWOOD,
_Provinciale_, 276.
Nowhere perhaps is the history of secret marriages so interesting
as in Scotland[1108] and mediæval England. Many proofs and
illustrations from literature, early rituals, law-books, and
judicial decisions have been collected by Friedberg.[1109] Usually
the nuptials were celebrated in presence of a priest at the
church door according to popular forms, or, in the later period,
according to more elaborate religious rites. But by custom the
simple hand-fasting, with or without giving to the bride a penny
or piece of gold, sufficed; and the hand-fasting is found also in
connection with the ecclesiastical ceremony. Even in the case of
secret marriages "it is characteristic that mention is almost always
made of the presence of a priest who confers his blessing."[1110]
Miles Coverdale's translation of Bullinger's _Christen State of
Matrimonye_ (_ca._ 1541) contains the following instructive passage:
"Yet in thys thynge also must I warne everye reasonable & honest
parson to beware, that in contractyng of maryage they dyssemble not,
nor set forthe any lye. Every man lykewyse must esteme the parson
to whom he is hand-fasted, none otherwyse than for his owne spouse,
though as yet it be not done in the church nor in the streate.
After the hand fasting & makyng of the contracte, the church goyng
& weddyng shulde not be deffered to long, lest the wicked sowe
hys vngracious sede in the mene season. Likewise the wedding (&
cohabitaciō of the parties) ought to be bego[=n]e with god, & with
the ernest prayer of the whole church or congregaciō.... In to this
dishe hath the devill put his foote, & myngled it with many wicked
vses & customes. For in some places ther is such a maner, wel worthy
to be rebuked that at the hand fastynge there is made a great feast
& superfluous bancket, & even the same night are the two hād fasted
persones brought & layed together, yea certayne wekes afore they go
tot [sic] the church."[1111]
[1108] For Scotland see GEARY, _Marriage and Family
Relations_, 534 ff.; FRIEDBERG, _op. cit._, 57, 58,
_passim_; JEAFFRESON, _Brides and Bridals_, II, 259, 260.
[1109] FRIEDBERG, _op. cit._, 36-57, 317, 335, 344,
355. Secret marriages are censured by CRANMER, _Misc.
Writings_, 82, 159; HOOPER, _Later Writings_, 137,
149; LATIMER, _Sermons_, II, 243. Consent of parents
is urged by SANDYS, _Sermons_, 50, 281, 325, 326,
455; BECON, _Catechism_, 355, 358, 371, 372; _idem_,
_Prayers_, 199, 532; TYNDALE, _Early Writings_, 169,
170, 199; JEAFFRESON, _Brides and Bridals_, II, 104-14;
I, 113 ff., discusses clandestine marriages, mainly after the
Reformation.
[1110] FRIEDBERG, _op. cit._, 39, 40. This appears
plainly from the constitution of Stratford, 1343, against
clandestine marriages; as well as from that of Zouche, 1347:
JOHNSON'S _Canons_, II, 395-97, 410, 411.
[1111] MILES COVERDALE, _The Christen State of
Matrimonye_ (1st ed., 1541), xlviii, xlviiii.
This passage was transcribed for me from a copy of the first
edition (1541) in the library of the British Museum by Professor
William H. Hudson. To his kindness I am also indebted for
the extract from Whitforde's book taken from a copy in the
possession of the same library. In 1899 Sotheran offered for £4
10s. a "probably unique" copy of a 24mo edition of Coverdale's
work, 1543. This he regards as a copy of the second edition,
the title differing somewhat from that of the first edition.
An 8vo edition appeared also in 1543, with a preface by Becon.
FRIEDBERG, _op. cit._, 40, quotes the same passage; but
the different spelling indicates that he has not used the first
edition.
Eleven years earlier similar testimony is given in Richard
Whitforde's _Werke for housholders_. "The ghostly ennemy," he says,
"doth deceyue many psones by y^e pretence & colour of matrymony in
pryuate & secrete contractes. For many men whan they can not obteyn
theyr vnclene desyre of the woman wyl promyse marryage, & thervpon
make a contracte promyse, & gyue fayth & trouth eche vnto other
sayenge. Here I take the Margery vnto my wyfe, I therto plyght the
my trouth. And she agayne, vnto hym in lyke maner. And after that
done, they suppose they maye lawfully vse theyr vnclene behauyour,
and somtyme the acte and dede doth folow, vnto the great offence of
god & theyr owne soules. It is a great ieopardy therfore to make
ony suche contractes, specyally amonge them selfe secretely alone,
without recordes, whiche must be two at the least."[1112]
[1112] RICHARD WHITFORDE, _A Werke for housholders_
(2d ed., 1537), sign. E. iii and following page. There is no
pagination. For the date see BAYNE, in _Dict. Nat.
Biog._, LXI, 125-27.
In Scudmore's _A Woman's a Weathercocke_ the priest who is expected
to solemnize the marriage of a lady with Count Frederick says:
"She is contracted, sir, nay married,
Unto another man, though it want forme:
And such strange passages and mutuall vowes,
I would make your short haire start, through youre blacke
Cap, should you heare it."[1113]
[1113] FRIEDBERG, _op. cit._, 41.
Many similar proofs may be found in the plays and ballads of the
sixteenth and seventeenth centuries.
III. THE EVILS OF THE SPIRITUAL JURISDICTION
The separation of the temporal and spiritual courts and the tenacity
with which early custom and theory were preserved in the common
law[1114] render the history of matrimonial judicature anomalous in
England. The leading case occurs in the reign of Stephen. "Richard
de Anesty's memorable law-suit[1115] was the outcome of a divorce
pronounced in 1143 under the authority of a papal rescript, and one
that to all appearance illustrated what was to be a characteristic
doctrine of the canon law: a marriage solemnly celebrated in church,
a marriage of which a child had been born, was set aside as null
in favour of an earlier marriage constituted by a mere exchange of
consenting words."[1116] By the time of Henry II. this doctrine was
completely established in England, as shown by the famous decretal
epistle of Alexander III. to the bishop of Norwich: "A strong case
is put. On the one hand stands the bare consent _per verba de
praesenti_, unhallowed and unconsummated, on the other a solemn and
a consummated union. The latter must yield to the former."[1117]
Such remained the law of England until the passage of the Hardwicke
act in 1753.[1118]
[1114] _Ibid._, 47, 48.
[1115] Discussed in PALGRAVE, _Commonwealth_, II,
v-xxvii; BIGELOW, _Placita Anglo-Normannica_, 175;
POLLOCK AND MAITLAND, _Hist. of Eng. Law_, I, 137, 138.
[1116] _Ibid._, II, 365.
For further illustration see LOERSCH, "Ein
eherechtliches Urtheil," _ZKR._, XV, 407-10; and
FRENSDORFF, "Ein Urtheilsbuch des geist. Gerichts zu
Augsburg," _ibid._, X, 1-37, publishing a manuscript containing
decisions for the years 1348-52 which afford abundant proof of
the doctrine and practice regarding _sponsalia de praesenti_.
[1117] POLLOCK AND MAITLAND, _op. cit._, II, 369, where
a translation of the epistle is given. _Cf._ BOHN, _Pol.
Cyc._, III, 319; SOHM., _Eheschliessung_, 124 ff., who
discusses from the canons the influence of Alexander III. on this
doctrine.
[1118] This principle is illustrated in a suit for jactitation of
marriage before the commissary of London, 1501: HALE,
_Precedents_, 72, 73; and in a case of punishing clandestine
marriage by prescribing penance by the same court in 1502:
_ibid._, 78, 79.
The perils arising in the canonical theory of espousals were greatly
increased by the doctrine of impediments to marriage, particularly
those growing out of forbidden degrees of affinity, consanguinity,
and spiritual relationship.[1119] "Reckless of mundane consequences,
the church while she treated marriage as a formless contract,
multiplied impediments which made the formation of a valid marriage
a matter of chance."[1120] The stringency of the law in this regard
appears to be entirely inconsistent with the theory that marriage
should be encouraged. But doubtless the apparent contradiction
is due largely to the same ideas which shaped that theory. The
Fathers dreaded the sins of the flesh through which the sacramental
nature of marriage might be defiled;[1121] and they may have felt
a reaction against the freedom of the German custom touching the
marriage of blood kindred.[1122]
[1119] The canonists distinguished _cognatio_ from
_affinitas_. There are three sorts of _cognatio_: (1)
_consanguinitas_; (2) _cognatio legalis_, or adoption; (3)
_cognatio spiritualis_, arising in a participation in the
same sacrament: ESMEIN, _op. cit._, 335 ff., 374 ff.
On the whole subject see NIEMEIER, _De conjugiis
prohibitis_, comprising ten separate dissertations with critical
and bibliographical "supplementa," but relating largely to
post-Reformation doctrine; SANCHEZ, _Disput. de s^{to}.
mat. sac._, II, 1-402; TANCRED, _Summa de mat._ (ed.
WUNDERLICH), 16 ff.; the monograph of EICHBORN,
_Die Ehehinderniss der Blutsverwandtschaft nach kan. Rechte_
(Breslau, 1872); SCHULTE, _Lehrbuch_, 355-57;
FRIEDBERG, _Lehrbuch_, 337, 359; SEHLING,
_Die Wirkungen der Geschlechtsgemeinschaft_ (impotence);
GEARY, _Marriage and Family Relations_, 20 ff.;
POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II, 383
ff.; FREISEN, _Geschichte des can. Eherechts_, 371
ff.; JEAFFRESON, _Brides and Bridals_, I, 108 ff.; II,
306 ff.; MORGAN, _Marriage, Adultery, and Divorce_, I,
199 ff. The Catholic doctrine is set forth at great length by
SCHEICHER-BINDER, _Praktisches Handbuch_, 8-354; and in
PERRONE, _De mat. christ._, II, 31 ff.
[1120] POLLOCK AND MAITLAND, _op. cit._, II, 383 ff.
[1121] ESMEIN, _op. cit._, I, 87, 90, 335 ff., discusses
the causes which produced this irrational and intricate system.
[1122] KEMBLE, _Saxons_, II, 406-8; LINGARD,
_Hist. Anglo-Saxon Church_ (2d ed.), II, 5 ff. Gregory advises
Augustine to relax the rules of the church in England so as
to allow marriage beyond the second degree: HADDAN AND
STUBBS, _Councils_, III, 20, 21. _Cf._ also ESMEIN,
_op. cit._, I, 344 ff.; EICHBORN, _Ehehinderniss_, 11 ff.
The development of the law of forbidden degrees, through the
doctrines of the early Christian teachers and a long series of
conciliar decrees, cannot here be described. In the thirteenth
century the various rules were codified by the schoolmen under
fifteen heads; "and their code has been accepted and acted upon
by the greater part of western Christendom down to the present
day."[1123] For a time prohibition was extended to the seventh
degree of consanguinity, counting, as did the canonists, in the
collateral line, _from_ the common ancestor and not _through_ the
same according to the Roman method.[1124] A distinction, however,
was made. Kinship in the sixth or seventh degree was held to be only
"_impedimentum impediens_, a reason for a refusal to solemnize a
marriage, not _impedimentum dirimens_, a cause which would render
a marriage null;" and this doctrine was "received in England as
well as elsewhere."[1125] At the Lateran council of 1215 Innocent
III. adopted the rule that "marriages within the fourth degree of
consanguinity are forbidden and null."[1126] But the doctrines of
the church touching affinity and relationship did not therefore
cease to perplex the courts, molest the happiness of individuals,
and threaten the tranquillity of nations.[1127] In England the
perennial "deceased wife's sister" bill, the stubborn resistance
to which has so long attested the amazing tenacity of theological
prejudice, has not even yet successfully run the gauntlet of the
House of Lords.[1128]
[1123] MEYRICK, "Marriage," in _Dict. Christ. Ant._, II,
1092-1103. See also his article "Prohibited Degrees," _ibid._,
1725-30; and ESMEIN, _op. cit._, I, 205 ff.
[1124] Thus, according to the Roman law, brother and sister are
in the second degree; but by the canon law they are in the first
degree. Second cousins by the canonists are regarded as in the
third degree; by the Romans, as in the sixth (if they are equally
distant from the common ancestor): MEYRICK, _op. cit._,
II, 1725; POLLOCK AND MAITLAND, _op. cit._, II, 383-85;
ESMEIN, _op. cit._, I, 351 ff.; FREISEN,
_Geschichte des can. Eherechts_, 371-439. For the eastern church
see ZHISHMAN, _Das Eherecht der orient. Kirche_, 213-373.
[1125] POLLOCK AND MAITLAND, _op. cit._, II, 385;
ESMEIN, _op. cit._, I, 75 ff., 203-5.
[1126] POLLOCK AND MAITLAND, _op. cit._, II, 385.
[1127] Much trouble grew out of the theory of spiritual affinity.
Thus "in 1462, John Howthon, of Tonbridge, was sentenced by the
Consistory Court of Rochester to be whipt three times round
both market and church for having married Dionysia Thomas, for
whom his former wife had been godmother. The like spiritual
relation occasioned (Jan. 7, 1465) a dissolution of the marriage
between John Trevennock and Joan Peckham; Letitia, the former
wife of the said John having been godmother to a child of
the said Joan." On December 29, 1472, William Lovelasse, of
Kingsdown, was cited to appear "on a charge of having married his
spiritual sister, viz., a woman whom his mother had held at her
confirmation."--BURN, _Parish Registers_, 3, 4, notes,
citing THORPE, _Customale_. The case of Henry VIII. and
Catherine, wife of his elder brother Arthur, and the anecdote
of Andowera and Fredegonda, wife of King Chilperic of Neustria
(THIERRY, _Narratives of the Merovingian Era_, London,
n. d., 20), are in point. On the evils of the complex system see
THWING, _The Family_, 83; _Law Review_ (English), I,
353 ff.; WOOLSEY, _Divorce_, 120 ff.; and especially
HUTH, _Marriage of Near Kin_, 113 ff.
[1128] ESMEIN, _op. cit._, I, 203-402, gives an
elaborate historical account of matrimonial impediments.
The relation of the temporal to the spiritual courts in the
administration of English matrimonial law was anomalous.[1129]
Strictly speaking, there was no lay jurisdiction whatever with
regard to the genuineness of marriage. Only the ecclesiastical judge
could determine whether a valid marriage existed.[1130] In such
a case the jury could not "declare the right." The question was
referred to the spiritual court for decision. On the other hand, the
law tribunal, without aid of the spiritual judge, could say whether
or not there was a _de facto_ marriage as opposed to a marriage _de
jure_. The jury could determine, in a possessory action, whether
there had been a public ceremony in face of the church. This was a
decisive proof; for the mere fact of living together as husband and
wife was not always conclusive.[1131] "If a man and woman have gone
through the ceremony of marriage at the church door, we may say that
we have here a _de facto_ marriage, a union which stands to a valid
marriage in somewhat the same relation as that in which possession
stands to ownership. On the other hand, if there has been no
ceremony, we cannot in the thirteenth century say that there is a
_de facto_ marriage; mere concubinage, especially among the clergy,
is far too common to allow us to presume a marriage wherever there
is a long-continued cohabitation. But a religious ceremony is a
different thing; it is definite and public; we can trust the jurors
to know all about it; we can make it the basis of our judgments
whenever the validity of the union has not been put in issue in
such a fashion that the decision of an ecclesiastical court must be
awaited."[1132]
[1129] The relation of the two jurisdictions is carefully
examined by FRIEDBERG, _Eheschliessung_, 47-57,
with citation of the principal cases; also in a very clear
and interesting way by POLLOCK AND MAITLAND, _op.
cit._, II, 370 ff., to whom I am particularly indebted. _Cf._
GEARY, _Marriage and Family Relations_, 1-6.
[1130] GLANVILLE, _Tractatus_, lib. vii, c. 13:
PHILLIPS, II, 402. _Idem_, c. 14: PHILLIPS, II,
402, gives the form of writ by which a question of valid marriage
is referred to the archbishop.
[1131] See, however, FRIEDBERG, _op. cit._, 51: "Lag
aber die Frage vor, haben die Parteien wie Mann und Frau zusammen
gelebt, haben sie sich verlobt, war mithin über das Recht der
Ehe ['the right of marriage'] keine Entscheidung zu fällen,
sondern allein über den factischen Thatbestand, so urtheilte der
weltliche Richter." But this led to strange embarrassments. Thus
it was in doubt whether a compulsory marriage belonged to the
spiritual or to the temporal court: ROLLE, _Abridgment_
(1688), I, 340; and "still greater was the doubt in case of the
question, whether a second marriage were invalid if the first
still existed": FRIEDBERG, _op. cit._, 51 n. 2; _Year
Book_, 49 Ed. III., 18.
[1132] POLLOCK AND MAITLAND, _op. cit._, II, 378. _Cf._
FRIEDBERG, _op. cit._, 56. "The canonists themselves
having made marriages all too easy, and valid marriages all
too difficult, had been driven into a doctrine of possessory
marriage." In a case where a valid or canonical marriage could
not be proved by the plaintiff, he was given a possessory action,
_actio spolii_, and "in this the defendant will not be allowed
to set up pleas which dispute, not the existence of a _de facto_
marriage, but its validity," while the "plaintiff must prove
a marriage celebrated in face of the church": POLLOCK AND
MAITLAND, _op. cit._, II, 379. _Cf._ ESMEIN, _op.
cit._, II, 15 ff.
The practical application of this doctrine appears in the two
cases of divorce and inheritance. Here the temporal courts tried
indirectly to put a check upon clandestine marriages, to remedy
the evils resulting from the scholastic dogma that mere consent
secretly expressed in words of the present tense constitutes a
valid marriage, by making the acquisition of certain property
rights depend upon the publicity of the espousals.[1133] The widow
could not receive her dower unless it had been publicly assigned
at the nuptials before the church door.[1134] "The result is
curious, for at first sight the lay tribunal seems to be rigidly
requiring a religious ceremony which in the eyes of the church is
unessential.... We soon see, however, that what our justices are
demanding is, not a religious rite nor 'the presence of an ordained
clergyman,' but publicity.... Marriages contracted elsewhere
may be valid enough, but only at the church door can a bride
be endowed. There is a special reason for this requirement. The
common-law contrast to the church-door marriage is the death-bed
marriage.[1135] At the instance of the priest and with the fear
of death before him, the sinner 'makes an honest woman' of his
mistress. This may do well enough for the church, and may, one
hopes, profit his soul in another world, but it must give no rights
in English soil."[1136] So also with regard to inheritance, in
certain cases,[1137] the lay court made the rights of children
depend upon public solemnization of the nuptials, thus adopting
the canonical theory of "putative marriages."[1138] Although there
may be no valid marriage on account of the existence of certain
impediments, such as too near kinship, the children are nevertheless
legitimate if the nuptials were publicly celebrated at the church
door, and if at least one of the parents, at the time the children
were begotten, was "ignorant of the fact which constituted the
impediment." They are entitled to inheritance, though the parents
are not really husband and wife. On this point in the thirteenth
century church and state were at one;[1139] but later a less
liberal doctrine was adopted by the secular tribunals. "The ultimate
theory of the English lawyers took no heed of good or bad faith, and
made the legitimacy of the children depend on the fact that their
parents while living were never divorced."[1140]
[1133] On the divergence of the temporal and ecclesiastical laws
as to legitimacy see GLANVILLE, _Tractatus_, lib. vii,
c. 15: PHILLIPS, II, 403. Compare SWINBURNE,
_Of Spousals_, 15, 233 ff.
[1134] FRIEDBERG, _Eheschliessung_, 50; POLLOCK AND
MAITLAND, _op. cit._, II, 372; BRACTON, _De leg. et
consuetud._, foll. 302-4; _idem_, _Note Book_, placita 891, 1669,
1718, 1875, MAITLAND'S ed., II, 688; III, 517, 559, 659.
[1135] _Ap._ BRACTON, _De leg. et consuetud._, fol. 92;
_Note Book_, pl. 891, 1669, 1718, 1875, MAITLAND'S ed.,
II, 688; III, 517, 559, 659.
[1136] POLLOCK AND MAITLAND, _op. cit._, II, 372, 373.
[1137] GLANVILLE, _op. cit._, lib. vii, c. 15:
PHILLIPS, II, 403. For an interesting case, showing that
the spiritual court could determine only the question of the
validity of marriage, and not that of inheritance, which belonged
to the king's courts, see _Corpus juris can._, c. 17, x, 1, 29;
c. 4, x, 4, 17; c. 7; quoted by FRIEDBERG, _op. cit._,
50 n. 2.
[1138] On "putative" marriages see ESMEIN, _op. cit._,
II, 33-37; FREISEN, _Geschichte des can. Eherechts_,
857-62; especially POLLOCK AND MAITLAND, _op. cit._, II,
373-77.
[1139] "To this agreement between church and state there was
the one well-known exception: our temporal courts would not
allow to marriage any retroactive power; the bastard remained
incapable of inheriting land even though his parents had become
husband and wife and thereby made him capable of receiving holy
orders and, in all probability, of taking a share in the movable
goods of his parents.... But about all other matters the church
could have, and apparently had, her way.... 'You are a bastard,
for your father was a deacon': that was a good plea in the
king's court, and the king's court did nothing to narrow the
mischievous latitude of the prohibited degrees."--POLLOCK AND
MAITLAND, _op. cit._, II, 375, 376. On legitimation through
subsequent marriage by the canon law see ESMEIN, _op.
cit._, II, 37 ff.; SWINBURNE, _Of Spousals_, 233 ff.
[1140] POLLOCK AND MAITLAND, _op. cit._, II, 375 n. 3;
_ap._ PIKE, _Year Book_, 11-12 Ed. III., pp. xx-xxii.
The refusal of the church to prescribe a proper age condition
for those entering matrimony led, as might be expected, to child
marriages; and in this case the rules of the English common law
only tended to magnify the evil. By the canonists the age of
consent to marriage was fixed at seven years.[1141] Thereafter a
marriage formed without consent of parent or guardian, and even in
opposition to it, was held to be legal; but it was "voidable so long
as either of the parties to it was below the age at which it could
be consummated. A presumption fixed this age at fourteen years for
boys and twelve years for girls. In case only one of the parties
was below that age, the marriage could be avoided by that party but
was binding on the other. So far as we can see, this doctrine was
accepted by our temporal courts."[1142] By the teaching of the
common lawyers a widow of nine years of age at her husband's death
could claim dower, though the marriage would have been voidable by
her at the age of puberty.[1143] The English temporal courts appear
to have disregarded the canonical rule that a marriage is absolutely
void when formed below the age of seven. "Coke tells us that the
nine years old widow shall have her dower 'of what age soever her
husband be, albeit he were but four years old,' and certain it is
that the betrothal of babies was not consistently treated as a
nullity. In Henry III.'s day marriage between a boy of four or five
years and a girl who was no older seems capable of ratification,
and as a matter of fact parents and guardians often betrothed, or
attempted to betroth, children who were less than seven years old.
Even the church could say no more than that babies in the cradle
were not to be given in marriage, except under the pressure of some
urgent need."[1144] For such infant marriages, however, there were
two practical motives during the Middle Ages. In England, just
as in India and often among lower races,[1145] the betrothal or
espousal of very young children was a means of peaceful treaty or
alliance; and the "rigour" of the feudal law was also in this way
avoided.[1146] "As deaths were early in those days, and wardship
frequent, a father sought by early marriage of his son or daughter
to dispose of their hands in his lifetime, instead of leaving them
to be dealt out to hungry courtiers who only sought to make as large
a profit as they could from the marriage of the wards they had
bought for that purpose;"[1147] and the lord's right of marriage
might in like manner be defeated by conferring knighthood upon a son
in tender years.[1148] Even as late as the age of the Tudors "much
immorality resulted from the child marriages which were common in
fashionable life."[1149]
[1141] For the growth of the doctrines of the canonists as to the
age of consent and the consequences of espousals before puberty
see FREISEN, _Geschichte des can. Eherechts_, 323 ff.;
ESMEIN, _op. cit._, II, 149 ff., with whom POLLOCK
AND MITLAND, _op. cit._, II, 387 ff., appear to agree. Read
also JEAFFRESON, _Brides and Bridals_, I, 70 ff., 276
ff., who gives interesting illustrations of infantile betrothals
and marriages; the learned monograph of HOFFMANN, _De
aetate juvenili_, 22 ff.; LYNDWOOD, _Provinciale_ (ed.
1505), liber quartus, fol. cxcvi; TANCRED, _Summa de
mat._, tit. 4, pp. 4, 5.
The constitution _De desponsatione impuberum_ of the primate
Edmund de Abingdon (1233-40) runs thus: "Ubi non est consensus
utriusque non est conjugium. Igitur qui pueris dant puellas
in cunabulis, nihil faciunt, nisi uterque puerorum, postquam
venerit ad tempus discretionis, consentiat. Hujus ergo Decreti
auctoritate inhibemus, ne de caetero aliqui, quorum uterque vel
alter ad aetatem legibus constitutam et canonibus determinatam
non pervenerit, conjungantur; nisi urgente necessitate pro
bono pacis talis conjunctio toleretur."--LYNDWOOD,
_Provinciale_; quoted by JEAFFRESON, _op. cit._, I, 74.
[1142] POLLOCK AND MAITLAND, _op. cit._, II, 387, 388,
who cite as proof the case of Thomas of Bayeux and Elena de
Morville. The king's court decided that Elena should remain in
ward to the king until the age of puberty, that "she may then
consent or dissent."
[1143] POLLOCK AND MAITLAND, _op. cit._, II, 388: _ap._
LITTLETON, sec. 36; COKE upon Lit., 33_a_.
[1144] POLLOCK AND MAITLAND, _op. cit._, II, 388, 389,
and the sources there cited.
[1145] See above, chap. iv.
[1146] "A treaty of peace involved an attempt to bind the
will of a very small child, and such treaties were made not
only among princes, but among men of humbler degree, who thus
patched up their quarrels or compromised their law-suits. The
rigour of our feudal law afforded another reason for such
transactions; a father took the earliest opportunity of marrying
his child in order that the right of marriage might not fall
to the lord."--POLLOCK AND MAITLAND, _op. cit._, II,
389. See the case of Grace, supposititious child of Thomas of
Saleby, married at four years of age to Adam Neville, and after
his death _sold_ in marriage twice by King John: _ibid._, 389,
390: _ap. Magna vita S. Hugonis_, 170-77; and in general on
early marriages, especially as a means of alliance, compare
ESMEIN, _op. cit._, I, 151 ff.
[1147] DENTON, _England in the Fifteenth Century_,
161. For an illustration of the lord's marriage rights see the
case of 1220 (H. III.) in _Select Pleas of the Crown_ (ed.
MAITLAND), I, 135-38.
[1148] "As knighthood prevented wardship, a father sometimes
endowed his son with land to qualify him for knighthood at an
early age, so as to bar the claims of the mesne lord or of the
crown to wardship. An instance occurs of knighthood at the age of
seven years avowedly procured for this reason."--DENTON,
_Eng. in Fifteenth Century_, 261 n. I: _ap._ SMITH,
_Lives of the Berkeleys_, 140.
[1149] TRAILL, _Social England_, III, 578.
IV. PUBLICITY SOUGHT THROUGH BANNS AND REGISTRATION
Without doubt the wrong and confusion arising in the ecclesiastical
theory and definition of marriage were manifold, and they were
patent to every observer. At the Council of Trent it was asserted
that some action to put a check upon clandestine marriages was
demanded by all the temporal powers;[1150] and the provincial church
councils, aided by state legislation, had done what they could
by imposing; penalties to remedy the abuse.[1151] Nevertheless,
strange as it may seem to one not acquainted with the devious logic
of scholastic theology, many members of the Council of Trent, on
dogmatic grounds, were stubbornly opposed to the only reform which
experience showed could be effective. They affirmed that severer
discipline would suffice. They apologized for clandestine marriages
on the pretext that they are sometimes useful, even necessary; or
they denied that to declare them null would prove an efficient
remedy.[1152]
[1150] THEINER, _Acta gen._, II, 334, 347, 351, 352,
391, 395: SALIS, _Pub. des trid. Rechts_, 10 n. 16.
_Cf._ WATERWORTH, _Canons_, ccxxiii.
[1151] So, for instance, in France: FRIEDBERG,
_Eheschliessung_, 64 n. 5; and in Spain, _ibid._, 74.
[1152] SALIS, _Pub. des trid. Rechts_, 11, 12, collates
the evidence for the various opinions from THEINER,
_Acta gen._, II. _Cf._ FRIEDBERG, _op. cit._, 108 ff.
Hence we are better able to appreciate at its true value the
significance for the Catholic world of the victory gained by the
common-sense of the majority. It was a victory in favor of that
publicity which the state demanded. Indeed, the church had already
done something, in spite of dogma, to change marriage from a private
to a public transaction. Her collision with the state, her anomalous
position with respect to social order, was involuntary. She was
caught, as it were, in the meshes of her own philosophy. Yet in the
interest of morality she strove to secure publicity. The priest
at the nuptials, declares Sohm, "appears first of all as a public
person."[1153] In particular the church tried to gain publicity for
marriage by the institution of banns. The custom of publishing banns
seems first to have made its appearance in France, probably as early
as the fifth century.[1154] It is enforced by the capitulary of 802,
which gains its real significance from this fact, and not from the
mention of the priestly benediction.[1155] From France it gradually
made its way into other countries of Europe. Thus in the year 1200,
as already noted, banns were enforced by Archbishop Walter; and
they were first made a general requirement by Innocent III. at the
fourth Lateran council in 1215.[1156] Later the English archbishops
found it necessary from time to time to impose more stringent
penalties for neglect of the proper publication of banns;[1157] and
they were enforced, without making the publication essential to a
valid marriage, by the Council of Trent. From the twelfth century
onward the marriage rituals contain directions for the asking and
publication of banns;[1158] while the punishment of persons guilty
of violating the canons in this regard gave much employment to the
spiritual courts during the Middle Ages.[1159]
[1153] SOHM, _Eheschliessung_, 175.
[1154] _Ibid._, 181.
[1155] Capit. 802, c. 35: WALTER, _Corpus juris germ._,
II, 167: "conjunctiones facere non praesumant, antequam episcopi
presbyteri cum senioribus populi consanguinitatem conjungentium
diligenter exquirant, et tune cum benedictions jungantur." _Cf._
SOHM'S interpretation, _op. cit._, 181, _vs._ that of
FRIEDBERG, _Eheschliessung_, 59.
[1156] See p. 314, above; and _cf._ POLLOCK AND
MAITLAND, _op. cit._, II, 368; FRIEDBERG, _op.
cit._, 10, 653, 654, for the present practice as to banns in
various countries.
[1157] JOHNSON's _Canons_, II, 91, 340, 352, 395, 410.
[1158] See the rituals of York, Sarum, Hereford, and others, in
Surtees Society _Publications_, LXIII, 26 ff., Appendix, 17 ff.,
115 ff., 155 ff.; and the Salisbury ritual in MASKELL'S
_Monumenta_, I, 50 ff.
[1159] For many cases see HALE'S _Precedents_, 6, 33,
38, 39, 54, 56, 65, 82, 83, 85, 92, 166, 181, 182, 199, 255.
The institution of banns has a special historical interest as being
in some sense the mediæval substitute for the modern registration
and official license to wed. The practice was to announce the
marriage, usually on three successive Sundays preceding the
nuptials, that any objection on the ground of relationship or other
disability might be brought forward. But the decrees of the church
were not carefully enforced. Dispensation from the obligation to
publish banns was the right of the bishop, but his license was
usually granted only in favor of the nobility and higher classes;
and the right constituted an important source of revenue.[1160]
[1160] FRIEDBERG, _Eheschliessung_, 10, 124;
ESMEIN, _Le mariage en droit canonique_, II, 170
ff., who shows that the rules relating to banns were too
vague to be effective. On the requirement of banns see
CRANMER, _Misc. Writings_, 159; GRINDAL,
_Remains_, 126; HOOPER, _Later Writings_, 126, 138, 149;
RIDLEY, _Works_, 531; SANDYS, _Sermons_, 434.
_Cf._ on the history of the institution JEAFFRESON,
_Brides and Bridals_, I, 99-107, 130 ff. Compare BORN,
_De bannis nuptialibus_ (Leipzig, 1716), secs. 1 ff.
The year 1538 marks an important epoch in the administration of
English matrimonial law. It was then, according to the researches of
Burn, that parish registers of births, deaths, and marriages were
first introduced; although before this time it had been customary in
some places to inscribe such records in the missals and psalters
of the church.[1161] The first article of the injunctions issued by
Thomas Cromwell, vice-regent under Henry VIII., provided: "_Item_,
That you and every parson, vicar, or curate within this Diocese, for
every Church keep one Book or Register, wherein he shall write the
day and year of every Wedding, Christening, and Burial, made within
your parish for your time, and so every man succeeding you likewise,
and also there insert every person's name, that shall be so wedded,
christened, and buried. And for the safe keeping of the same Book
the parish shall be bound to provide of their common charges one
sure coffer, with two locks and keys, whereof the one to remain with
you, and the other with the Wardens of every parish wherein the said
Book shall be laid up, which Book ye shall every Sunday take forth,
and in the presence of the said Wardens or one of them, write and
record in the same, all the Weddings, Christenings, and Burials made
the whole week afore, and that done, to lay up the Book in the said
coffer as afore; and for every time that the same shall be omitted,
the party that shall be in the fault thereof, shall forfeit to the
said Church iij^s. iiij^d. to be employed on the reparation of the
said Church."[1162]
[1161] BURN, _Hist. of Parish Registers_, 1-16.
Compare WATERS, _Parish Registers_, 5. Mention is made
of registers in France as early as 1308; and by an order of
Cardinal Ximenes, 1497, they were to be kept in every parish
of the diocese of Toledo "in order to remedy the disorders
occasioned by the frequency of divorces in Spain, on the ground
of spiritual affinity."--BURN, 3; MARSOLIER,
_Histoire du ministère du Cardinal Ximenes_, tom. 1, liv. 2, 263;
WATERS, _Parish Registers_, 4. _Cf._ PALGRAVE,
in _Quart. Rev._, LXXIII, 561, who thus goes too far in saying
that "parish registers were never kept _in any part of the world
until the sixteenth century_."
There is some evidence, held to be inconclusive by BURN,
_op. cit._, 5-15, that an order for the use of registers may
have been made earlier than 1538. The fact that at least eight
registers begin before that date points to instructions given
at the time of the suppression of the smaller monasteries:
WATERS, _op. cit._, 6. At the time of the insurrection
in Yorkshire, 1536, in order to draw the common people, it was
given out "that the king designed to get all the gold of England
into his hands, under colour of recoining it; that he would seize
all unmarked cattle, and all the ornaments of parish churches,
and they should be forced _to pay for christenings, marriages,
and burials_ (orders having been given for keeping Registers
thereof), and for licenses to eat white bread."--CARTE,
_Hist. of England_. See also the rare tract by Holmes (1537), and
the letter of Sir Piers Edgcumb to Cromwell (April 20, 1539),
both quoted by BURN, _op. cit._, 8, 9. For the date
see WATERS, _op. cit._, 7; and compare BURN'S
_Fleet Marriages_, 3.
[1162] BURN, _Parish Registers_, 17, 18. _Cf._ also
FRIEDBERG, _Eheschliessung_, 319, 320. The same
provision, with slight alteration, is contained in the injunction
of 1547, Edward VI. It is quoted by TOULMIN SMITH,
_The Parish_, 187, 188; BOHN, _Pol. Cyc._, IV, 625;
BURN, _op. cit._, 18, 19.
Thus in this, the most ancient English registration act, the parson
or incumbent appears as the original registrar; and that the
importance of keeping such record was keenly appreciated is shown by
the anxious, almost painful, minuteness with which his duties are
defined. The order of Henry VIII. was enforced or supplemented under
Edward VI., Elizabeth, William III., and other monarchs; but, save
during the Commonwealth, no material change was made in the mode of
registration until in 1836 the present system was introduced.[1163]
[1163] For a review of the various proposals, acts, and
"visitations" to enforce them see BURN, _op. cit._,
18-39; FRIEDBERG, _op. cit._, 320-22; TOULMIN
SMITH, _op. cit._, 188, 189; BOHN, _op. cit._, IV,
625, 626.
CHAPTER IX
THE PROTESTANT CONCEPTION OF MARRIAGE
[BIBLIOGRAPHICAL NOTE IX.--The ideas of the German Reformation,
and therefore ultimately of Protestantism, relative to the
form and the nature of marriage were molded by the thought
of Martin Luther. Among his numerous writings on the subject
most important are the "Vom heiligen Ehestandt und Oeconomia
oder Haushaltung," being the thirty-sixth chapter of the
_Tischreden_ (folio, Frankfort, 1571); and the following
articles in his _Bücher und Schriften_ (folio, Jena, 1555-80):
"Sermon vom ehelichen Stande" (1519, in Vol. I); "Predigten
über das erste Buch Mose" (1527, in Vol. IV); and especially
the "Von Ehesachen" (1530, in Vol. V). The principal passages
from all of Luther's writings on the subject of matrimony
and divorce, classified in seven groups, with critical and
historical notes and marginal explanation of archaic words, are
conveniently given in von Strampff's _Dr. Martin Luther: Ueber
die Ehe_ (Berlin, 1857). This is an important _Quellenbuch_
for the student. A very useful book also, containing twelve
of his most important papers, is the second volume of the
_Kleinere Schriften Dr. Martin Luthers_, entitled "Von Ehe- und
Klostersachen" (Bielefeld and Leipzig, 1877). Older works which
afford some assistance are Niess's _Ehestands-Buch_ (Eisleben
and Leipzig, 1858), comprising, with other matter, some of the
utterances of Luther; and Froböse's _Dr. Martin Luther's ernste,
kräftige Worte über Ehe und eheliche Verhältnisse_ (Hanover,
1825).
The first philosophical treatise on marriage, anticipating in
various ways the modern conception, is Erasmus's _Christiani
matrimonii institutio_ (Basel, 1526). The dedicatory epistle,
dated July, 1526, is addressed to Queen Catherine of England.
The edition cited in the text bears the general title _De
matrimonio christiano_ (Lugd. Bat., 1650); and to it is appended
Vivus's _Conjugii origine et utilitate discursus_. Erasmus's
treatise may also be found in Vol. V of his _Opera omnia_ (Lugd.
Bat., 1704). The work was prohibited mainly because of its
critical tone regarding the excessive ardor of the primitive
Christians for celibacy and perpetual virginity. Of first-rate
importance for obtaining a general view of the doctrines of
the German Reformation is Sarcerius, _Vom heiligen Ehestande_
(1553); or the same work enlarged under title _Corpus juris
matrimonialis_ (Frankfort, 1569). It has been found convenient
to relegate the description of many writings available as
sources for this chapter to Bibliographical Note XI. See
particularly the works of Brenz, Kling, Beust, Schneidewin,
Melanchthon, Zwingli, Bullinger, Bucer, Monner, Bidembach,
Mentzer, Brouwer, and Forster, there referred to. Besides
Melanchthon's "De conjugio" (1551), in _Opera_, I (Erlangen,
1828), see also his "De arbore consanguinitatis et affinitatis"
(1541), in Sarcerius, _Vom heiligen Ehestande_, lvs. xii-xxvii;
or the "Corpus juris matrimonialis," lvs. xi-xxvii, where
may also be found much additional matter from Luther, Kling,
and others relating to forbidden degrees. In this connection
may also be consulted Niemeier, _De conjugiis prohibitis
dissertationes_ (Helmstadt, 1705), comprising ten distinct
essays, with a critical and bibliographical supplement, produced
during the years 1699-1705.
The most important collection of church regulations regarding
marriage is Richter's _Die evangelische Kirchordnungen des
sechszehnten Jahrhunderts_ (Weimar, 1846). These have been
partly analyzed by Meier, _Jus, quod de forma matrimonii
ineundi valet_ (Berlin, 1856); and thoroughly by Goeschen,
_Doctrina de matrimonio_ (Halle, 1848). The rejection of
priestly celibacy by the Reformers has called forth numerous
writings, among which the earliest are Luther, _Bedenken und
Unterricht von den Klöstern und allen geistlichen Gelübden_
(1522); _idem_, _An die herrn deutschs Ordens_ (original edition
in the author's possession, Wittenberg, 1523); Bugenhagen,
_De conjugio episcoporum et diaconorum_ (1525); the anonymous
_Underricht auss Göttlichen und Gaystlichen Rechten, Auch auss
den flayschlichen Bepstlischen unrechten, ob ain Priester
ain Eeweyb, oder Concubin ... haben möge_ (1526). See also
the elaborate treatise of Calixtus, _De conjugio clericorum_
(Frankfort, 1653); and the dissertation of Roldanus, _De mente
Pauli, volentis episcopum esse unius uxoris maritum_ (Lugd.
Bat., 1710).
On the famous "double marriage" of Landgrave Philip of Hesse
a source of unique interest is the _Argumenta Buceri pro et
contra_, a manuscript by Bucer written in 1539 and first
published at Cassel in 1878. The original documents in the
case are appended to the exceedingly lively work of Arcuarius,
_Kurtze, Doch unpartheyisch- und Gewissenhaffte Betrachtung
des ... Heiligen Ehestandes_ (1679), decidedly inclining to
the side of Luther and his colleagues. Beza, _Tractatio de
polygamia_ (Geneva, 1568), replies to the defense of polygamy
by Ochino, _Dialogue_ (Zurich, 1563; Eng. trans., London,
1657). The most celebrated book produced in this controversy is
Theophilus Alethaeus's (Johann Lyser's) _Discursus politicus
de polygamia_ (2d ed., Freiburg, 1676); or the same with the
prefixed general title, _Polygamia triumphatrix_ (Londini
Scanorum, 1682), this edition containing the learned and
very elaborate notes of "Athenasius Vincentius" who is none
other than Lyser himself. The first edition, in German, is
entitled _Politischer Discurs zwischen Monogamo und Polygamo_
(Freiburg, 1675). Lyser is harshly answered by Johann Frischen,
_Unvorgreiffliche Erörterung der Frage: Was von der
Polygamie oder Viel-Weiberey zu halten sey_ (Hamburg, 1677);
and more coarsely by "Simplicius Christianus," _Eilfertiges
Antwort-Schreiben.... Darin eine Summarische Widerlegung des
politischen Discurs von der Viel-Weiberey, so ein Atheistischer
Huren-Teuffel J. L. Bosshafftiglich ausgestreuet, enthalten
ist_ (Leipzig, 1677). In this connection see also Thomasius,
_De concubinatu_ (Halle, 1713); Baumgart, _De concubinatu,
a Christo et apostolis prohibito_ (Halle, 1713); N. N., _De
licito concubinatu opponenda_ (Freistadt, 1714); Michaelis,
_Paralipomena contra polygamiam_ (Göttingen, 1757); Swinderen,
_De polygamia_ (Groningae, 1795); Premontval, _La monogamie_
(La Haye, 1751); or the translation by Windheim entitled _Des
Herrn Premontvals Monogamie_ (Nuremberg, 1753); Rantzow,
_Discussion si la polygamie est contre la loi nat. ou divine_
(St. Petersburg, 1774); and the works of Madan, Cookson, and
others mentioned in the next chapter. An interesting monograph
based on the correspondence of Bucer and the landgrave is
Rady's _Die Reformatoren in ihrer Beziehung zur Doppelehe des
Landgrafen Philipp_ (Frankfort and Lucerne, 1890). Luther's
alleged sensuality and coarseness of speech are examined by
"Lutherophilus," _Das sechste Gebot und Luthers Leben_ (Halle,
1893); with which may be read Altenrath, _Zur Beurtheilung und
Würdigung Martin Luthers_ (Frankfort, 1889).
Typical of an extensive literature in the sixteenth century,
whose aim is the appreciation and elevation of marriage, is Adam
Colbius von Buchen's _Christliche Predigten über das Buch Tobie,
darinnen, als in einem lustigen Ehespiegel ... vom heyligen
Ehestandt ... erkläret wirdt_ (Frankfort, 1592). On the other
hand, in contempt of womanhood and in mockery of wedlock was
produced a mass of prose and verse coarse and unclean beyond
description. Both kinds of writing--the evangelical _Ehespiegel_
and the literature dedicated to "St. Grobian"--are treated in
an instructive way by Kawerau, _Die Reformation und die Ehe_
(Halle, 1892). To aid in obtaining a more complete conception
of post-Reformation sentiment may also be consulted Agrippa,
_De nobilitate et praecellentia foeminei sexus libellus_
(Coloniae, 1532, 1567); Saxse, _Arcana annuli pronubi, Das ist:
Geheimnis und bedeutung des Ehelichen Traw Ringes_ (Leipzig,
1594); Müller, _Ungerathene Ehe, oder vornehmste Ursachen, so
heute den Ehestand zum Wehestand machen_ (Frankfort, 1674);
Lehman, _Florilegium politicum auctum_ (Frankfort, 1662); and
Feyerabend, _De privilegiis mulierum_ (Jena, 1672). Two learned
general treatises, untouched by the Reformation doctrines, are
Johannis Nevizianus's _Sylvae nuptialis libri sex_ (Lugduni,
1556), containing a vast amount of curious matter ostensibly
designed to aid in solving the question, "_An nubendum sit,
vel non_;" and Antonius Gubertus Costanus's _De sponsalibus,
matrimoniis et dotibus commentarius_ (Marpurgi, 1597),
dealing in a clear and scholarly manner with the matrimonial
institutions of the Hebrews, Greeks, Romans, and Christians
under the canon law.
Several doctrines of Luther and the early Reformers have each
produced a literature. Whether under various conditions parental
consent is necessary to a legal or valid marriage is discussed
by Lohen, _De parentum ad nuptias a liberis contrahendas
consensu_ (Regiomonti, 1685); Lauginger, _De consensu parentum
ad nuptias liberorum_ (Regiomonti, 1699); Schmalian, _De ambitu
connubiali: Vom Frey-Werben_ (Wittenberg, 1745); especially by
the two great leaders of the "naturalistic" movement, Thomasius,
_De validitate conjugii invitis parentibus contracti et per
benedictionem sacerdotis depositi consummati_ (Leipzig, 1689);
(Halle and Leipzig, 1722), and J. H. Boehmer, _De matrimonio
coacto_ (Halle, 1735). With the last-named dissertation may be
read G. L. Boehmer's _De copulae sacerdotalis a deposito clerico
furtim impetratae injusto favore_ (Göttingen, 1745); Delbrück's
_De matrimonio ad benedictionem sacerdotis incompetentis
contracto_ (Halle, 1759); and in general on the doctrine of
espousals, Greiff, _De pactis futurorum sponsaliorum: von
Ja-Wort_ (Halle, 1712); Schelhas, _De clandestinis sponsalibus
juratis: Vulgo von heimlichen Verlöbnüssen_ (Jena, 1716);
Bendeleben, _De diverso sponsalium et matrimonii jure_ (Halle,
1718); Sahme, _De matrimonii legitimo absque benedictione
sacerdotali_ (Halle, 1722); Berger, _De praescriptione
sponsaliorum_ (Wittenberg, 1724); Richardus, _De conditionalibus
sponsaliorum impossibilibus_ (Halle, 1741; presented, 1701);
Wachsmuth, _De exceptione sponsaliorum clandestinorum, ab
ipso contrahente opposita_ (Jena, 1754). See further, on
special questions, Mentzer, _Num sponsis, ante solennem in
ecclesiae copulationem et benedictionem, concubentibus, publica
poenitentia juste imponatur?_ (6th reprint, Wittenberg, 1728);
Willenberg, _De matrimonio imparum_ (Halle, 1727); Bennemann,
_De natura matrimonii_ (Halle, 1708); Krull, _De nuptiis_
(Wittenberg, 1632); Schnetter, _De matrimonio cum damnato ad
mortem contrahendo_ (Halle, 1727; presented, 1679).
In the modern scientific literature of the subject the first
place belongs to the general treatise of Richter, _Lehrbuch_
(8th ed., Leipzig, 1886); the _Lehrbuch_ of Friedberg (3d
ed., Leipzig, 1889); and Scheurl's _Das gemeine deutsche
Eherecht_ (Erlangen, 1882). An older work, very thorough and
very careful in the citation of the literature, is Hofmann's
_Handbuch des teutschen Eherechts_ (Jena, 1789); while,
besides the books of Göschl, Lobethan, Schott, and Stäudlin
elsewhere described, Loy's _Das protestantische Eherecht_
(Nuremberg and Altdorf, 1793) is of service. Much valuable
biographical and bibliographical material may be found in
the great work of Schulte, _Die Geschichte der Quellen und
Litteratur des canonischen Rechts_ (Stuttgart, 1875-80).
Important monographs are Schubert's _Die evangelische Trauung_
(Berlin, 1890); Scheurl's _Die Entwicklung des kirchlichen
Eheschliessungsrechts_ (Erlangen, 1877); Dieckhoff's _Die
kirchliche Trauung_ (Rostock, 1878); and there is an able
article by Goeschen, "Ehe," in Herzog's _Encyclopaedie_,
III (Stuttgart and Hamburg, 1855). For the present state of
German matrimonial law consult Blumstengel, _Die Trauung in
evangelischem Deutschland nach Recht und Ritus_ (Weimar, 1879);
Klein, _Das heutige Eherecht im Herzogthum Sachsen-Altenburg_
(Strassburg, 1881); Stölzel, _Deutsches Eheschliessungsrecht
nach amtlichen Ermittelungen_ (3d ed., Berlin, 1876); and
Hergenhahn's work elsewhere mentioned. Several early church
ordinances, and a number of matrimonial decisions of rare
interest from the consistory court of Wittenberg, commencing
soon after its formation, are communicated by Schleusner,
"Zu den Anfängen des protestantischen Eherechts," in _ZKG._,
VI, XII, XIII (Gotha, 1884, 1891, 1892). The "Bedencken"
or ordinance adopted at Dresden in 1556 by the three Saxon
consistories, with other matter, is also published by Muther,
"Drei Urkunden zur Reformationsgeschichte," in Niedner's
_Zeitschrift für historische Theologie_, XXX (Gotha, 1860).
These same documents and also the famous case of Caspar Beyer
(1543-44) are discussed by Mejer, "Anfänge des Wittenberger
Consistoriums," in _ZKR._, XIII (Tübingen, 1876). Mejer,
"Zur Geschichte des ältesten protestantischen Eherechts,"
_ibid._, XVI (Freiburg and Tübingen, 1881), gives an excellent
historical, biographical, and bibliographical account of the
Wittenberg consistory; and the two preceding articles, with a
discussion of the establishment of the consistory of Rostock,
are reprinted in his _Zum Kirchenrechte_ (Hanover, 1891).
Original material is communicated by Fischer, "Die älteste
evangelische Kirchenordnung ... in Hohenlohe," in _ZKR._,
XV (Freiburg and Tübingen, 1880), and by Friedberg, _Aus
der protestantischen Eherechtspflege des 16. Jahrhunderts_,
reprinted from _ZKR._, IV (Tübingen, 1864), containing,
in connection with the case of Zaschwitz, letters and
other papers of Melanchthon regarding forbidden degrees.
Another article of Friedberg, "Beiträge zur Geschichte des
brandenburgisch-preussischen Eherechts," _ibid._, VI, VII
(Tübingen, 1866-67), includes the very long petition of Dr.
Stiel (1553) for enforcement of a betrothal, with other original
documents relating to matrimonial doctrine and judicial
practice. A history of "conditional marriages" is given by
Phillips, "Das Ehehinderniss der beigefügten Bedingung,"
_ibid._, V, VI (Tübingen, 1865-66); and the rise of the
Protestant doctrine regarding the impediment of relationship
is discussed by Scheurl, "Zur Lehre von dem Ehehindernisse der
Verwandtschaft," _ibid._, XVI (Freiburg and Tübingen, 1881).
See also the monograph of Berg, _Ueber die Verbindlichkeit
der kanonischen Ehehindernisse in Betriff der Ehen der
Evangelischen_ (Breslau, 1835).
On the controversy regarding "mixed marriages" and marriages
of diverse religion, consult Gregorovius, _De mat. person.
diversae relig._ (Regiomonti, 1712); Carpzovius, _Circa nuptias
person. diversae relig._ (Wittenberg, 1735); Breitenbach,
_De mat. allophilorum_ (Giessen, 1740); Zum-Bach, _Ueber die
Ehen zwischen Katholiken und Protestanten_ (Cologne, 1820);
_Ueber die gemischten Ehen_ (Stuttgart, 1827); Wittmann,
_Katholische Grundsätze über die Ehen welche zwischen Katholiken
und Protestanten geschlossen werden_ (Stadtamhof, 1831);
Kutschker, _Die gemischten Ehen von dem katholisch-kirchlichen
Standpuncte_ (Vienna, 1838); _Nationaler und historischer
Standpunkt_ (Cologne and Vienna, 1838); Sack, _Die katholische
Kirche innerhalb des Protestantismus_ (Cologne, 1838); Bessel,
_Die gemischten Ehen_ (Frankfort, 1839); Mack, _Die Einsegnung
der gemischten Ehen_ (Tübingen, 1840); Perronne, _Ueber die
gemischten Ehen_ (Augsburg, 1840); _Eintracht gibt Macht oder
... Nothwendigkeit zu einem gleichmässigen Verfahren in Hinsicht
auf die gemischten Ehen_ (Düsseldorf, 1844); _Die gemischten
Ehen in der Erzdiöcese Freiburg_ (Regensburg, 1846); Binterim,
_An matrimonio mixto_ (Düsseldorf, 1846); _idem_, _Dissertatio
altera_ (Düsseldorf, 1847); _Der Streit über gemischte Ehen ...
in Baden_ (Karlsruhe, 1847); _Beleuchtung_ [of the foregoing]
_Karlsruher Schrift_ (Schaffhausen, 1847); Hilse, _Civil- und
Misch-Ehe_ (Berlin, 1869); and Hübler, _Eheschliessung und
gemischte Ehen in Preussen_ (Berlin, 1883).
For England the principal source is the _Works of the Fathers
and Early Writers of the Reformed English Church_, published
by the Parker Society (Cambridge, 1841-55). Among the large
number of books comprised in this series, those of Latimer,
Cranmer, Tyndale, Jewell, Hooper, Bullinger, Parker, Coverdale,
and particularly Whitgift's _Defence of the Answer_ (containing
also Cartwright's _Reply to the Answer_) have been of most
service. Three important treatises of the English Reformation
period bearing on marriage and the family are Coverdale's
translation of _The Christen State of Matrimonye_ (1541);
Whitforde's _A Werke for housholders_ (1530, 1537); and
Vives's (Vivus's) _A very frvteful and pleasant booke called
the Instruction of a Christen Woman ... tourned out of latyne
into Englische by Rycharde Hyrde_ (London, 1557). The original
may be found in Vol. II, 650-755, of Vives's _Opera_ (Basel,
1555); and Rudolph Heine has a German translation in Vol.
XVI of Richter's _Pädagogische Bibliothek_ (Leipzig, n. d.).
Much valuable material may also be found in Gee and Hardy's
_Documents_ (London, 1896); Prothero's _Select Statutes and
Other Constitutional Documents_ (Oxford, 1894); while the
_Statutes at Large_ (Raithby, London, 1811) are of course
in constant requisition. The more important acts relating
to marriage are contained in Vol. I of Evans's convenient
_Collection of Statutes_ (London, 1823). Swinburne's fascinating
_Treatise of Spousals_ (London, 1686), written in the last
days of Elizabeth's reign, but published a century later, is
indispensable for understanding the law and theory of the
matrimonial contract during the Tudor period. Some assistance
has also been gained from the collections of Hale, Johnson, and
Wilkins mentioned in preceding notes.
The exhaustive treatment of the Protestant conception of
marriage for Germany contained in Friedberg's great work
on _Eheschliessung_ (Leipzig, 1865), supplemented by his
suggestive monograph _Geschichte der Civilehe_ (Berlin, 1877),
leaves little for others to do. Sohm's _Eheschliessung_ is
also important. For England Makower has a brief but excellent
discussion; and much illustrative material may be found in
Burn's _Parish Registers_ (London, 1862); Wood's _Wedding
Day_ (New York, 1869); Douce's _Illustrations of Shakespeare_
(London, 1807); Brand's _Popular Antiquities_ (new ed., London,
1873-77); Burnet's gossipy _History of the Reformation_ (London,
1850); and Jeaffreson's _Brides and Bridals_ (London, 1872).
Nichols, _Progresses ... of King James the First_ (London,
1828), gives an interesting example of the former practice of
public betrothals; and the same may also be found in Leland's
_Collectanea_, V (2d ed., London, 1770). Queen Mary's Articles
(1553) regarding married priests and some other important papers
are given in Cardwell's _Documentary Annals_ (Oxford, 1839,
1844). Palmer's _Origines liturgicae_ (3d ed., Oxford, 1839;
4th ed., London, 1845) has also been of service; while new
light is thrown on social conditions in Elizabeth's reign by
the unique collection of documents edited for the Early English
Text Society by Furnivall, _Child-Marriages, Divorces, and
Ratifications_ (London, 1897).]
I. AS TO THE FORM OF MARRIAGE
The Protestant Reformation in Germany produced many ideas which
were eventually fruitful for good in the history of matrimonial
law; but unfortunately, owing to a number of causes, more than
two centuries were to elapse before any effective remedy was
provided for the evils of clandestine wedlock. Ecclesiastical
rites were prescribed by the authority of the state as the best
means of securing publicity; but neither Luther[1164] nor the
other Protestant leaders insisted upon them as necessary to a
binding marriage.[1165] Luther, indeed, perceived the absurdity
of the scholastic distinction between _sponsalia de praesenti_
and _de futuro_; and proposed to retain espousals _de futuro_ or
precontracts only in the sense of "conditional betrothals."[1166]
On failure of the condition, or for other weighty reasons, these
engagements might be dissolved. But unconditional betrothals, or
his _sponsalia de praesenti_--that is to say, practically all
betrothals, including the espousals _de futuro_ of the canonists--if
publicly made and with parental consent, were regarded by Luther
as valid marriages which could not be dissolved.[1167] Parental
consent[1168] he appears to think essential, though on this point
his statements are by no means clear;[1169] and he urges the need
of public espousals in face of the parish.[1170] Yet he admits that
a secret engagement--by which he seems to mean espousals without
the presence of witnesses, but with parental consent--if followed
by physical union, constitutes a true marriage equally binding
with the open betrothal. In effect, the doctrine of Luther did not
provide a complete remedy for the evils of clandestine contract; for
all marriages, save only the conditional when not consummated, and
possibly those formed secretly against the parents' will, were now
indissoluble at the will of the parties.[1171] Moreover, an action
was allowed to enforce a promise of marriage; and for more than two
centuries after the Reformation the fulfilment of a betrothal could
be enforced by severe penalties.[1172] Yet in one respect there
was a decided advance. The pernicious distinction of Peter Lombard
between espousals _de praesenti_ and _de futuro_ was practically
rejected, and with it much of the danger which had lurked in the
vacillating discretion of the ecclesiastical judge might have been
removed had the jurists accepted Luther's teaching.[1173] Thus from
a historical point of view the result is instructive. The ancient
_wette_ or _beweddung_, handed down through the slightly weakened
form of the canonical _sponsalia de praesenti_, was restored to even
more than its original relative importance as compared with the
_Trauung_ or nuptials.[1174]
[1164] See the extracts illustrating Luther's views as to the
form of wedlock in STRAMPFF, 337-44.
[1165] Consult the elaborate investigation of FRIEDBERG,
_Eheschliessung_, 198-305; _idem_, _Die Geschichte der
Civilehe_, 7 ff.; with which should be compared SOHM,
_Eheschliessung_, chap. vii, and his _Trauung und
Verlobung_, chap, iv.; SCHEURL, _Ent. des kirch.
Eheschliessungsrechts_, 123 ff., 126 ff.; _idem_, _Das gemein.
deutsch. Eherecht_, 64-73; DIECKHOFF, _Die kirch.
Trauung_, 108 ff., 180 ff., 223 ff. (views of Melanchthon,
Chemnitz, and others); MEJER, _Zum Kirchenrechte_, 154
ff. (views of Kling, Mauser, Schneidewin, Wesenbeck, Monner,
and Beust--all connected with the consistory of Wittenberg);
SCHUBERT, _Die evang. Trauung_, 41 ff., 49 ff.;
RICHTER, _Lehrbuch_, 1136 ff.
[1166] "Das liess ich wohl verba de futuro heissen, wenn ein
conditio, Anhang oder Auszug dabei gesetzt würde, als: Ich
will dich haben, wo du mir willt zu gut, zwei oder ein Jahr
harren; item: Ich will dich haben, so du mir hundert Gulden
mitbringest; item: so deine oder meine Aeltern wollen; und
dergleichen."--LUTHER, "Von Ehesachen," _Bücher und
Schriften_ (Jena, 1561), V, 241.
As an illustration of the early judicial practice see the
interesting decision of the consistory court of Wittenberg, among
the cases published by SCHLEUSNER, _Anfänge des protest.
Eherechts_, 136, where a contract is dissolved for failure of the
condition. The case is undated, but it probably occurred before
1550.
Conditional espousals were recognized by the canon law: for
England see SWINBURNE, _Of Spousals_, 109-53, where the
many intricate questions connected with conditional contracts are
discussed with much learning; and in general the monograph of
RIEDLER, _Bedingte Eheschliessung_ (Kempten, 1892).
With Luther's views regarding conditional betrothal compare
those of Melanchthon, "De conjugio," _Opera omnia_, I, pars ii,
232; SCHNEIDEWIN, _De nuptiis_, tit. x, "De spons.,"
pars i, 32-38; BEUST, _De spons. et mat._, secs.
xviii, xix; KLING, _Tr. mat. causarum_, foll. 73 ff.;
BROUWER, _De jure con._, 188-204. For discussion see
SCHLEUSNER, "Zu den Anfängen des prot. Eherechts,"
_ZKG._, VI, 402-5; SCHEURL, "Zur Geschichte des kirch.
Eheschliessungsr.," _ibid._, XV, 69, 70; _idem_, _Das gemein.
deutsche Eherecht_, 368-70; RICHARDUS, _De cond.
sponsaliorum impossibilibus_, 29 ff., _passim_; RICHTER,
_Lehrbuch_, 1061 ff., 1200; and especially the excellent
historical paper of PHILLIPS, "Das Ehehinderniss der
beigefügten Bedingung," _ZKR._, V, VI, 153 ff., reviewing the
literature of the subject from the sixteenth to the nineteenth
century; SCHOTT, _Einleit. in das Eherecht_, 199 ff.
[1167] For a collection of the writings of Luther on precontracts
or betrothals see STRAMPFF, 287-334; especially the
extract from the _Von Ehesachen_, 334, where breach of troth is
made equivalent to adultery.
[1168] The passages of Luther's works on parental consent,
with an introductory note, are collected in STRAMPFF,
299-325. Compare BEUST, _De spons. et mat._, 201-10;
MELANCHTHON, "De conjugio," _Opera omnia_, I, pars ii,
231; BULLINGER, _Der Christlich Ehestand_, lvs. 11
ff., 14, 15; KLING, _Tr. mat. causarum_, foll. 77 ff.;
SCHNEIDEWIN, _De nuptiis_, tit. x, "De nupt. licitis,"
pars ii, secs. 29 ff.; BRENZ, "Wie yn Ehesachen ...
zu Handeln," in SARCERIUS, _Vom heil. Ehestande_,
foll. 69 ff.; MENTZER, _De conjugio tr._, 136-50, 153;
BIDEMBACH, _De causis mat. tract._, 3 ff., 15 ff.;
FORSTER, _De nuptiis_, 145 ff., 149 ff. (the law of
Saxony requiring); BROUWER, _De jure connubiorum_, 71
ff., 76 ff., 80 ff.
All authorities, seemingly, are agreed that a parent may not
rightly force a child to marry; see BULLINGER, _Der
christlich Ehestand_, lvs. 15, 16; SCHNEIDEWIN, _De
nupt._, tit. x, "De nupt. licitis," pars. ii, secs. 41, 42;
SARCERIUS, _Vom heil. Ehestande_, foll. 73 ff.; 96
ff. (Luther); MENTZER, _De conjugio tr._, 253-55;
BIDEMBACH, _De causis mat._, 25-27; BOEHMER,
_De mat. coacto_; and the literature on parental consent
described in Bibliographical Note IX.
[1169] In his "Von Ehesachen" (1530), _Bücher und Schriften_,
V, 247, he says directly that a public betrothal, that is a
marriage, not followed by _copula_ should yield to an earlier
secret betrothal _cum copula_. It is argued, however, that
by "secret" he means a betrothal without witnesses, but with
consent of the parents: FRIEDBERG, _Eheschliessung_,
209 n. 2, 210 n. 1; SOHM, _Eheschliessung_, 206 n. 16.
LUTHER'S "Von Ehesachen," _Bücher und Schriften_, V,
237-57, is mainly devoted to a discussion of secret and public
betrothals.
As a matter of fact, I find the consistory court of Wittenberg
dissolving a betrothal for lack of parental consent:
SCHLEUSNER, _Anfänge des protest. Eherechts_, 137. In
another interesting case a girl was persuaded by her lover to
marry him without the consent of her mother or step-father, but
saying: "I would not, however, offend my dear mother." The two
clerical judges held the contract to be conditioned on getting
the mother's consent, and therefore void, since the condition
had not been fulfilled and the law of Saxony forbade marriages
without parental consent. The two lay judges, however, held the
contract binding, because the girl's father being dead, to whom
real authority belonged, she was free to marry whom she chose.
The case was referred to Luther and another person as arbiters.
Luther, in opposition to his associate, held the marriage void
because conditional and a violation of the fourth commandment,
and the court accepted his opinion: SCHLEUSNER, _op.
cit._, 138, 139.
[1170] The consistory court of Wittenberg declared a public
betrothal legal as opposed to an earlier secret engagement:
see the case in SCHLEUSNER, _Anfänge des protest.
Eherechts_, 140; and for other cases _cf. ibid._, 145, 146.
[1171] On espousals, especially clandestine contracts, compare
SCHNEIDEWIN, _De nuptiis_, tit. x, "De spons.," pars.
i, secs. 1 ff., 21 ff.; BEUST, _Tr. de spons. et mat._,
1 ff., 12 ff., 27 ff. (_sponsalia clandestina_); KLING,
_Tr. mat. causarum_, lvs. 1 ff., 6 ff., 68 ff. (_sponsalia
clandestina_); SARCERIUS, _Vom heil. Ehestande_, foll.
67 ff., 91 ff., 73 ff. (Luther); MENTZER, _De conjugio
tr._, 156 ff., 168 ff.; BIDEMBACH, _De causis mat.
tr._, 3 ff., 29-35; FORSTER, _De nuptiis_, 52 ff.;
BROUWER, _De jure connubiorum_, 9 ff., 100 ff.; and the
literature on _sponsalia_ mentioned in Bibliographical Note IX.
For discussion see SCHEURL, _Die Entwick. des kirch.
Eheschliessungsrechts_, 130 ff., 140 ff.; SCHUBERT,
_Die evang. Trauung_, 44 ff.; CREMER, _Kirch. Trauung_,
68-71; DIECKHOFF, _Die Kirch. Trauung_, 189 ff., 212
ff., 221 ff.; RICHTER, _Lehrbuch_, 1121, 1194 ff.;
FRIEDBERG, _Lehrbuch_, 295, 296, 337-59; LOY,
_Das protest. Eherecht_, 425 ff., 437 ff., 445, 447 ff.;
HOFMANN, _Handbuch des teutschen Eherechts_, 27 ff.,
143, 146 ff.; SCHOTT, _Einleitung in das Eherecht_, 174
ff., 182 ff., 193; SOHM, _Eheschliessung_, 197-249.
[1172] The most famous case of enforcement of a betrothal,
against an unwilling bride, is that of Dr. Stiel, 1553. The
plaintiff's petition (_Gesuch_) in fifty-eight articles or
specifications, setting forth in a most realistic way the whole
courtship and the betrothal proceedings, is communicated by
FRIEDBERG, "Beiträge zur Geschichte des brand.-preuss.
Eherechts," _ZKR._, VI, 72 ff. Actual force to compel the
fulfilment of a betrothal was used only when it was followed
by _copula_: _ibid._, 81. Friedberg traces the history of the
subject to the reign of Frederick the Great, citing various
cases. As a result he declares that in the sixteenth century
betrothed persons could be forced to keep their engagement even
when both were willing to dissolve it; while in the eighteenth
century action depended upon the will of the interested parties:
_ibid._, 87, 88. Compare BIDEMBACH, _De causis mat.
tr._, 35 ff.
[1173] See the argument of SOHM, _Eheschliessung_,
202 ff.; _Trauung und Verlobung_, 110 ff.; against
FRIEDBERG, _Eheschliessung_, 206, 210; _Geschichte der
Civilehe_, 8, who holds that Luther _doubled_ the evils of secret
marriage.
[1174] SOHM, _Eheschliessung_, chap. vii; _Trauung und
Verlobung_, chap. iv, has demonstrated this against the view of
Friedberg.
Nevertheless by the middle of the seventeenth century was
established a dualism in effect similar to that which had existed
under the later canon law. More and more stress was placed
upon the nuptials as compared with the betrothal, although in
theory the latter still constituted the marriage. J. H.
BOEHMER, _Jus ecclesiasticum protestantium_ (Halle, 1714),
whose teaching has mainly determined the modern law, attacked
Luther as being responsible for this dualism, holding that a
true betrothal, like the Roman _sponsalia_, is only a promise
of future wedlock, and may therefore be dissolved; while the
nuptial contract, publicly and formally made, is the true
marriage. On Boehmer's doctrines see DIECKHOFF, _Die
kirch. Trauung_, 270-95; SCHUBERT, _Die evang. Trauung_,
62-76; SCHEURL, _Kirch. Eheschliessungsrecht_, 140 ff.;
PHILLIPS, "Das Ehehinderniss der beigefügten Bedingung,"
_ZKR._, VI, 154.
The teachings of Luther regarding espousals were largely
determinative for the future history of marriage in the German
states. According to the ordinances, the doctrine, and the practice
of the evangelical churches, the betrothal was a true marriage, the
nuptials merely its confirmation.[1175] Even his wavering as to the
necessity of parental consent for a valid contract leaves its trace
in the divergent provisions of law.[1176] In practice the jurists,
against the protest of Luther,[1177] held close to the principles
of the canon law.[1178] As a rule, the courts tended to treat all
secret betrothals followed by actual connubial life as binding
marriages.[1179] Until far down into the eighteenth century the
engaged lovers before the nuptials were held to be legally husband
and wife.[1180] It was common for them to begin living together
immediately after the betrothal ceremony;[1181] and the so-called
"bride children" were given rights of legitimate offspring, this
custom in part surviving until our own times.[1182]
[1175] SOHM, _Eheschliessung_, 198.
[1176] The church ordinances require sometimes only parental
consent; sometimes only witnesses; or again the solemnization
of the betrothal in church is prescribed, with the sanction of
nullity or else a mere penalty for non-observance: SOHM,
_op. cit._, 206, 207; FRIEDBERG, _Eheschliessung_, 212
ff., 224, 225. RICHTER'S _Evangelische Kirchenordnungen_
are analyzed by MEIER, _Jus, quod de forma mat. valet_,
49 ff.; and GOESCHEN, _Doctrina de mat._, 42 ff.
[1177] FRIEDBERG, _op. cit._, 225 ff.
[1178] Luther would have entirely rejected the canon law, but
even in his immediate environment he gained no following.
Theologians and jurists alike accepted it as generally valid,
giving it precedence over the Roman law. Only the Scriptures were
a higher authority. Compare MEJER, _Zum Kirchenrechte_,
170, 156 (Kling); _idem_, in _ZKR._, XVI, 44-48, 73.
[1179] SOHM, _op. cit._, 207; FRIEDBERG, _op.
cit._, 209, 225-27, 261, 277 ff. The famous case of Caspar Beyer
came before the consistorial court of Wittenberg in the latter
part of 1543; and its decision in 1544 led to the notorious
controversy between Luther and the jurists. Beyer wanted to marry
Sibylla, a ward of Melanchthon, but he had made a clandestine
contract with another woman without consent or knowledge of
her parents; although it was alleged that her brother had
given _post facto_ assent, the parents being perhaps dead.
Luther declared that such secret betrothals "sollen schlecht
keine Ehe stiften;" and in 1539 or 1540 a law of Saxony had
forbidden them. A decision of the consistory, following the
doctrine of the canon law, sustained the validity of Beyer's
marriage; but after a "starke Predigt" and long insistence by
Luther it was overruled by the Elector: MEJER, "Anfänge
des Witt. Consistoriums," _ZKR._, XIII, 28-123; _idem_, _Zum
Kirchenrechte_, 65 ff.
[1180] SOHM, _op. cit._, 198; FRIEDBERG, _op.
cit._, 208, 209, 225-27, 261, 277 ff., 299, 300.
[1181] In Germany betrothal rituals were sometimes prescribed
in the church ordinances: FRIEDBERG, _op. cit._, 222,
223, 224; and public espousal ceremonies were in use in England:
BURN, _Parish Registers_, 138 ff.
[1182] FRIEDBERG, _op. cit._, 293, 299, 300. On the
_Brautkinder_ see SCHOTT, _Einleit. in das Eherecht_,
193, 194; and on secret betrothals and the laws forbidding them
consult especially HOFMANN, _Handbuch des teutschen
Eherechts_, 146 ff.; and compare LOY, _Das protest.
Eherecht_, 447 ff.
The rites observed in the celebration of marriage differed in
some details from those in use before the Reformation. A model
was drafted by Luther, and it was often followed with variations
in the church ordinances.[1183] He does not urge the adoption of
a service which must be observed by all. On the contrary, every
place may use its customary form in the solemnization of wedlock.
A simple ritual is, however, provided for the use of those needing
assistance. When the bride and bridegroom so require, the banns are
to be asked in the chancel before the wedding. As in the mediæval
formularies already examined, the nuptial ceremony consists of two
acts. Before the church door the wedding vows and the wedding rings
are exchanged, the priest declaring to the assembled people, in the
name of the Trinity, that he pronounces the man and woman joined in
marriage. In the church before the altar the second act takes place.
Instead of the bride-mass, this consists simply in the reading of a
passage of Scripture followed by the priestly benediction.[1184]
[1183] The earliest Protestant marriage ritual appears to
have been written by BUGENHAGEN: see the ritual
(1523) ascribed mainly to him, published with discussion by
SCHUBERT, _Die evang. Trauung_, 142-53. Compare
"Der Bericht Christoph Gerungs von Memmingen über die erste
Priesterhochzeit zu Augsburg anno 1523;" _ibid._, 132-41, showing
that the nuptial ceremony is but a confirmation of the _sponsalia
de praesenti_ already concluded.
[1184] LUTHER, "Traubüchlein für die einfältigen
Pfarrherren" (1534), _Kleinere Schriften_, II, 219-23; with which
compare "Der kleine Katechismus" (1529), in STRAMPFF,
340, 341, 422; and the rituals analyzed by SOHM, _op.
cit._, 197 ff. In this connection read BULLINGER'S
discussion of the proper conduct at weddings in _Der christlich
Ehestand_, lvs. 59-68; or the same in SARCERIUS, _Vom
heil. Ehestande_, foll. 102-7; also BIDEMBACH, _De
causis mat. tr._, 3 ff.; FORSTER, _De nuptiis_, 167 ff.;
and BROUWER, _De jure connubiorum_, 619 ff.
DIECKHOFF, _Die kirch. Trauung_, 108-14, points
out that the exchange of rings and the declaration of the
marriage to the assembled people, instead of saying to the
parties themselves the words "_Ego conjungo vos in nomine_,"
etc., are innovations of the Reformation period. For further
discussion see SCHUBERT, _Die evang. Trauung_, 51
ff.; HOFMANN, _Handbuch des Eherechts_, 172 ff.;
RICHTER, _Lehrbuch_, 1121 ff.; SCHEURL, _Das
gemeine deutsche Eherecht_, 63 ff.
For examples of rules and rituals adopted by some of the
churches consult RICHTER, _Evang. Kirchenordnungen_,
I, 31, 32 ("Landesordnung des Herzogthums Preussen"), 330,
331 (Brandenburg), 347-50 (Geneva); II, 47, 48 ("Cölnische
Reformation"), 375-77 (Brandenburg); especially FISCHER,
"Die älteste evang. Kirchenordnung in Hohenlohe," _ZKR._, XV,
1-48; and compare MEIER, _Jus, quod de forma mat.
valet_, 49 ff.; GOESCHEN, _Doctrina de mat._, 48-58;
FRIEDBERG, _Eheschliessung_, 212 ff.; SOHM,
_Eheschliessung_, 197 ff., who analyzes the church ordinances.
The decree of the Council of Trent relating to the nuptial
celebration was not accepted in Protestant lands, and hence no
essential change was made in the forms of marriage. In England
during the whole period between the Reformation and the Commonwealth
ecclesiastical celebration was the rule; and the spiritual courts,
retaining their ancient jurisdiction in matrimonial causes, still
recognized the principles of the canon law, though appeals to Rome
were not allowed.[1185] Hence clandestine contracts _de praesenti_
were valid and could be maintained against regular marriages
subsequently solemnized in church. This fact is established by
abundant evidence,[1186] and by none more ample and convincing than
that afforded by the remarkable collection of documents recently
edited by Furnivall, to which further reference will presently be
made.[1187] But the parties were subject to clerical censure and
the forfeiture of certain property rights.[1188] An attempt was,
indeed, made by Henry VIII. in 1540 to restrict the validity of
private marriages by providing in effect that those solemnized by
the church, if consummate, should take precedence of unconsummated
precontracts not thus celebrated; and the same statute confined
the impediments to marriage to those comprised in the Levitical
degrees.[1189] But this act had little significance save in the
matrimonial transactions of Henry himself;[1190] for, so far as it
related to precontracts, it was repealed by a statute of Edward VI.
which restored the former law and provided that "when any cause or
contract of marriage is pretended to have been made, it shall be
lawful to the king's ecclesiastical judge of that place to hear
and examine" it; and after having it "sufficiently and lawfully
proved," to give "sentence of matrimony, commanding solemnization,
cohabitation, consummation, and tractation," as in times past the
king's spiritual courts had power to do.[1191] Referring to this
act, Swinburne, writing in the reign of Elizabeth, bears witness to
the strength with which the canonical theory of espousals had laid
hold of the legal mind. "Worthily, I say, and upon good ground was
this Branch of that Statute" of King Henry relating to precontracts
"repealed and made void by his gracious Son King _Edward_ the
Sixth, for Spousals _de praesenti_, though not consummate, be in
truth and substance very Matrimony, and therefore perpetually
indissoluble, except for Adultery: Although by the Common Laws of
this Realm (like as it is in _France_ and other places) Spousals
not only _de futuro_, but also _de praesenti_ be destitute of many
_legal Effects_ wherewith _Marriage solemnized_ doth abound, whether
we respect legitimation of Issue, alteration of property in her
Goods, or right of Dower in the Husbands Lands."[1192]
[1185] By 24 Hen. VIII., c. 12 (1532): _Statutes at Large_, II,
71-73; GEE AND HARDY, _Documents_, 187-95, appeals to
Rome in questions of marriage and divorce are forbidden. Such
cases may be carried from the archdeacon to the bishop, then to
the archbishop of Canterbury or York, whose decision is final. By
25 Hen. VIII, c. 21: _Statutes at Large_, II, 90, the archbishop
of Canterbury is given a right of dispensation similar to that
formerly exercised by the pope. Chapter 19 of the same statute,
_ibid._, II, 85-87; GEE AND HARDY, _Documents_, 195 ff.,
provides for the appointment of a commission of thirty-two men
to examine the whole body of canons in order to determine which
should be accepted as valid; but until the commission should
conclude its labors "such Canons Constitutions Ordinances and
Synodals Provincial being already made," not repugnant to the
laws or customs of the realm, "nor to the Damage or Hurt of the
King's Prerogative Royal, shall now still be used and executed
as they were afore." No report was made by this commission;
nor did the _Reformatio legum ecclesiasticarum_ prepared by
another commission, which was provided for by 3 and 4 Ed.
VI., c. 11: _Statutes at Large_, II, 295, ever take effect:
FRIEDBERG, _Eheschliessung_, 310 n. 3. The act of 25
Hen. VIII., c. 19, was repealed by 1 and 2 Philip and Mary, c. 8:
_Statutes at Large_, II, 342 ff.; but again restored by 1 Eliz.,
c. 1: _Statutes_, II, 379 ff. So the result was the practical
retention of the canon law. _Cf._ FRIEDBERG, _op. cit._,
309-11.
[1186] It is proved by the celebrated case of Bunting _v._
Lepingwell, 1585-86: COKE'S _Reports_, II, 355-59.
See FRIEDBERG'S analysis of this case and other
proofs collected by him: _Eheschliessung_, 313-18; also
SWINBURNE, _Of Spousals_, 13, 15, 74-108, especially
193 ff., 222 ff., 236-39, who shows the canon-law theory to be
in full force in the reign of Elizabeth; and CRANMER,
_Misc. Writings_, 359, 360. HALE'S _Precedents_,
120, 136, 137, 146, 147, 169, 170, 185, 192, affords several
interesting illustrations for the Reformation period.
[1187] FURNIVALL, _Child-Marriages, Divorces, and
Ratifications, in the Diocese of Chester, 1561-6_ (edited for
the Early Eng. Text Society, London, 1897), especially 56-71,
184-202 (trothplights), 140, 141 (clandestine marriages), 72-102
(adulteries and affiliations).
[1188] SWINBURNE, _Of Spousals_, 15, 233-35;
FRIEDBERG, _op. cit._, 315 n. 4.
[1189] 32 Hen. VIII., c. 38: _Statutes at Large_, II, 173, 174;
EVANS, _Statutes_, I, 152-54. The act of 25 Hen. VIII.,
c. 22: EVANS, I, 151, prescribes the Levitical degrees.
[1190] FRIEDBERG, _op. cit._, 311, 312. See
the elaborate discussion of the divorce controversy by
BURNET, _Hist. of the Reformation_, I, 26 ff.,
particularly 74 ff.
[1191] 2 and 3 Ed. VI., c. 23: _Statutes at Large_, II,
284, 285; EVANS, _Statutes_, I, 154, 155. _Cf._
JEAFFRESON, _Brides and Bridals_, I, 114 f., 124 ff.
[1192] SWINBURNE, _Of Spousals_, 15. This learned
treatise was first published in 1686, although written a century
before. See the introductory address "To the Reader."
Indeed, for the law and custom of betrothal in England, toward the
close of the sixteenth century, the quaint and recondite treatise
of Swinburne is a mine of information. A vast number of questions
illustrative of the principles, the snares and perplexities, of
the surviving canonical theories are there taken up and "resolved"
with singular brevity and clearness. "Albeit," he says, "this word
_Sponsalia_ (Englished _Spousals_) being properly understood, doth
only signifie Promises of future Marriage, yet is it not perpetually
tied to this only Sense, for sometimes it is stretched to the
signification of _Love Gifts and Tokens_ of the Parties betroathed;
as _Bracelets_, _Chains_, _Jewels_, and namely the _Ring_; being
often used for the very _Arrabo_ or assured Pledge of a perfect
Promise: Sometimes it is taken for the _Portion of the Goods_ which
is given for and in consideration of the Marriage to be Solemnized;
and sometimes for the _Feast or Banquet_ at the Celebration of
the Marriage, and of others it is otherwise used." The canonists,
however, distinguish between matrimony and betrothal, and they
"do also discern betwixt one kind of Spousals and another, being
the first Inventors of the several Names of Spousals _de futuro_,
and Spousals _de praesenti_, and yet nevertheless oftentimes they
make no difference, or very little, betwixt the Natures and
Effects of Spousals _de praesenti_ and of Matrimony solemnized and
consummate."[1193] Such contracts are "as indissoluble as perfect
matrimony;"[1194] and "as well the Sacred Scriptures, as the Civil
and Ecclesiastical Laws, do usually give to Women betroathed only,
or affianced, the Name and Title of _Wife_, because in truth the man
and woman, thus perfectly assured, by words of _present time_, are
Husband and Wife before God and his Church."[1195]
[1193] _Ibid._, 1-3.
[1194] _Ibid._, 236.
[1195] _Ibid._, 14. In _Twelfth Night_, Act V, scene i, Olivia
calls Cesario "husband;" and in Act IV, scene iii, referring to
the future nuptials, speaks of keeping celebration "according to
my birth." In _Measure for Measure_, Act I, scene iii, Claudio
calls Julietta his "wife;" and in Act IV, scene i, the duke,
addressing Mariana who had been _affianced_ to Angelo, says,
"he is your _husband_ on a precontract." _Cf._ DOUCE,
_Illustrations of Shakespeare_, I, 114.
The old perplexity growing out of the coincidence of illegality and
validity in the same contract still exists;[1196] and the conscience
may still be bound by secret marriage, though the court may declare
it null and void. The "Law doth forbid all Persons to make _Secret_
Contracts of Spousals, or Matrimony; and that justly, considering
the manifold discommodities depending thereupon, namely, for that
hereby it cometh to pass oftentimes, that the Parties secretly
contracting, are otherwise formally affianced, or so near in Blood
that they cannot be Married; or being free from those impediments,
yet do they alter their purposes, denying and breaking their
promises, whence Perjuries" and "many more intolerable mischiefs
do succeed."[1197] Yet though "Secret Marriages are done indeed
against the Law," it is held that once contracted they cannot be
dissolved, because public "solemnities are not of the Substance of
Spousals, or of Matrimony, but consent only; ... So that it may be
justly inferred, that the only want of Solemnity doth not hurt the
Contract." Moreover, if it be urged that "seeing secret Contracts
cannot be proved, it is all one in effect, as if they were not,"
it may be answered that such is truly the case "_Jure fori, non
jure poli_, Before Man, not before God; for the Church indeed doth
not judge of secret and hidden things," but before Almighty God
"bare Conscience alone is as a thousand Witnesses; Wherefore I do
admonish thee, that hast in truth contracted secret Matrimony, that
thou do not marry any other Person; for doubtless this thy pretended
Marriage, how lawful soever it may seem in the eye of Man, who
judgeth only according to the outward appearance, is nothing but
meer Adultery in the infallible sight of God's just Judgment."[1198]
[1196] SWINBURNE, _op. cit._, 193 ff.
[1197] _Ibid._, 194.
[1198] SWINBURNE, _op. cit._, 194, 195, 196.
Public as opposed to private espousals,[1199] according to
Swinburne, "are they which are contracted before sufficient
Witnesses, and wherein are observed all other Solemnities requisite
by the Ecclesiastical Law: For so careful were the ancient
Law-makers to avoid those mischiefs, which commonly attend upon
_secret_ and _clandestine_ Contracts, that they would have the same
Solemnities observed in contracting Spousals, which be requisite in
contracting Matrimony."[1200] In fact, according to one authority,
"public espousals were, upon pain of excommunication, to be in an
open place, and before diverse witnesses;" but it does not "appear
to have been necessary to the validity of these contracts, that
they should be made at church;"[1201] nor can we safely assume
that this requirement was generally enforced. During the period
following the Reformation the celebration of the betrothal and the
nuptials usually took place at the same time, on the wedding day
in the body of the church; and the form of each is prescribed in
the marriage rituals.[1202] The public solemnization of espousals
was, however, not entirely superseded. In the seventeenth[1203] and
eighteenth[1204] centuries, though passing out of use, the custom
was by no means extinct, especially in the case of noble or royal
persons. A record of betrothals contracted _in facie ecclesiae_ was
not usually kept; but at least one such entry has been discovered.
The register of Boughton Monchelsea, Kent, shows that on the tenth
day of January, 1630, William Maddox and Elizabeth Grimestone were
affianced "in due form of law;" and in this case the marriage
was not celebrated until three years later.[1205] "The form of
betrothing at church" in England "has not been handed to us in any
of its ancient ecclesiastical service books;" but it "has been
preserved in a few of the French and Italian rituals."[1206] "The
ceremony, generally speaking, was performed by the priest demanding
of the parties if they had entered into a contract with any other
person, or made a vow of chastity or religion; whether they had
acted for each other, or for any child they might have had, in the
capacity of godfather or godmother." Then, if the contract were in
the form of _sponsalia jurata_ or sworn espousals, the "oath was
administered. 'You swear by God and his holy Saints herein and by
all the Saints of Paradise, that you will take this woman whose name
is N., to wife within forty days, if holy church will permit.' The
priest then joined their hands, and said--'And thus you affiance
yourselves;' to which the parties answered,--'Yes, Sir.' They
then received a suitable exhortation on the nature and design of
marriage, and an injunction to live piously and chastily until that
event should take place. They were not permitted, at least by the
church, to reside in the same house, but were nevertheless regarded
as man and wife independently of the usual privileges."[1207] Later
in France espousals in church were often prohibited, "because
instances frequently occurred when the parties, relying on the
testimony of the priest, scrupled not to live together as man and
wife.... Excesses were likewise often committed by the celebration
of Espousals in taverns and ale-houses, and some of the synodal
decrees expressly injoin that the parties shall not get drunk on
these occasions."[1208]
[1199] "In an ancient manuscript (No. 1042 in the Archiepiscopal
Library at Lambeth Palace) the methods of contracting espousals
are thus described: Contrahunt^a sponsalia iiij modis--Aliqu^a
promissione, aliqu^a datis arris sponsalitiis interveniente anuli
subarra[~c]oe, aliqu^a interveniente jura[~m]to. Nuda promissione
cum dicit vir, Accipiam te ī meā uxorem, et illa respondet,
Accipiā te in meū maritū. Vel alia verba equipollencia, et
ista [~s]t vera sponsalia [~q]ndo sit per [~v]ba de futuro
cont^ahuntur."--BURN, _Parish Registers_, 139. On sworn
espousals and the other forms see SWINBURNE, _op. cit._,
213 ff., 193 ff., _passim_.
[1200] _Ibid._, 193.
[1201] BURN, _Parish Registers_, 139, citing
LYNDWOOD'S _Provinciale_, 271. "In an Almanack for
1665, certain days (January 2, 4, etc.) are pointed out as 'good
to marry, or contract a wife (for then women will be fond and
loving).'"--_Ibid._, 139 n. 2. See also WOOD, _The
Wedding Day_, 235-60, for an account of the superstitions and
folklore on this subject.
[1202] Thus in the rituals of Edward VI. and Elizabeth, when the
priest says, "Wilt thou have this woman to thy wedded wife?" or
"this man to thy wedded husband?" we have the case of espousals.
Thereafter, when each party says, "I, N., take thee, N., to my
wedded wife" or "husband," we see matrimony contracted, though
the form is precisely that of _sponsalia per verba de praesenti_.
See the Parker Society _Liturgical Services_, Edward VI., 128,
129; Elizabeth, 218, 219. The same forms are retained in the
existing ritual of the English church: BINGHAM, _The
Christian Marriage Ceremony_, 163, 164.
[1203] In NICHOLS'S _Progresses of King James the First_
(London, 1828), II, 513 ff., "will be found two accounts (one
by Camden) of the ceremonial of the Affiancing of the Princess
Elizabeth in 1612. It took place in the Banquetting House at
Whitehall, before dinner; Sir Thomas Lake, as Secretary of State,
read the words from the book of Common Prayer, in French, 'I
Frederick take thee Elizabeth,' etc., after which the Archbishop
gave his Benediction: 'The God of Abraham, the God of Isaac, and
the God of Jacob, bless these Espousals, and make them prosperous
to these Kingdoms, and to his Church.' This appears to have been
the whole of the office, and the service was probably not longer
in ordinary cases. In the Contract for the Princess's marriage,
executed the same day (Dec. 27), is a clause, 'Quòd Matrimonium
verum et legitimum contrahatur inter eos in Angliā ante initium
mensis Maii, et interim _Sponsalia legitima de praesenti_.' 'It
would be no difficulty,' remarks Mr. Anstis, Garter [Leland's
_Collectanea_, V, 329-36], 'to show the antient custom of such
Espousals by the daughter of the Crown of England as distinct
acts from the office of Matrimony, and that they frequently
were performed some months or years before the marriage was
actually celebrated.'"--BURN, _Parish Registers_, 140
n. 2. As shown in the case of Princess Elizabeth, even the banns
followed the public betrothal: NICHOLS, II, 524, 525.
In the fifth year of Henry V., the espousals of Thomas Thorp and
Katerina Burgate were publicly celebrated: NAPIER'S
_Swincombe_, 65; BURN, _op. cit._, 144. "We find, under
date 1476, that a certificate was given by the minister and six
parishioners of Ufford, in Suffolk, to the effect that since
the death of a certain man's wife he had not been 'trowhplyht'
to any woman, and that he might therefore lawfully take a
wife."--WOOD, _The Wedding Day_, 212.
[1204] In a breach of promise suit before the common pleas, 1747,
the plaintiff proved that she had been publicly betrothed, and
received £7,000 damage: _Gentleman's Magazine_, 1747, p. 293;
also _Gent. Mag. Library: Manners and Customs_, 54.
[1205] BURN, _op. cit._, 144. The author has evidently
transposed the dates. "The Eastern Emperor Leo, surnamed
Philosophus (in order to prevent the mischiefs arising from
Espousals to be concluded by marriage at a distant period)
commanded that the Espousals and Weddings should be performed
both upon one day. Alexius Comnenus endeavoured to restore
the old custom."--_Alex. Com. Novel. de Spons._, 1, 2.;
BURN, _loc. cit._, n. 1.
[1206] DOUCE, _Illustrations of Shakespeare_ (London,
1807), I, 108. Douce discusses the more interesting references
to the betrothal in Shakespeare's plays: _ibid._, 107-14,
403. _Cf._ also BURN, _op. cit._, 140, 143. On the
mediæval English practice of spousals, private and in church,
see PALMER, _Origines liturgicae_, II, 211, 212; and
in general JEAFFRESON, _Brides and Bridals_, I, 60-87;
BRAND, _Popular Antiquities_, II, 87 ff.
[1207] DOUCE, _op. cit._, I, 113, 114. See also
WOOD, _The Wedding Day_, 211, 212; and compare the
Greek betrothal ritual in BURN, _op. cit._, 141, 142,
taken from the _Euchologion sive rituale graecorum_, 380. On
_sponsalia jurata_ see SWINBURNE, _Of Spousals_, 213-21;
KLING, _Tr. mat. causarum_, 2, 3; BEUST, _Tr.
de spons. et mat._, 219 ff.
[1208] DOUCE, _op. cit._, I, 112, 113. Compare the
interesting passage in BULLINGER, _Der christlich
Ehestand_, lvs. 60 ff.
Valid betrothals, like valid marriages, may be celebrated by signs
as well as words. This is true, says Swinburne, notwithstanding "a
ready text, extant in the bowels of the law," much relied upon by
diverse writers, to the effect that words expressive of consent are
essential.[1209] "And forasmuch as _Subarration_, that is the giving
and receiving of a _Ring_, is a Sign of all others, most usual in
Spousals and Matrimonial Contracts, I think it requisite to speak
of it, before all other Signs; the rather because the Writers upon
this Sign have diligently described unto us, what Persons did first
devise the same, and to what end; and what was the matter, and what
the form thereof, on which Finger it ought to be worn, and what is
the Signification of each of those Circumstances, with divers other
Observations which I will briefly run over. The first Inventer of
the Ring (as is reported) was one _Prometheus_; The Workman which
made it was _Tubal-Cain_, of whom there is mention in the fourth of
Genesis, that he wrought cunningly in every Craft of Brass and Iron:
And Tubal-Cain by the Counsel of our first Parent _Adam_ (as my
Author telleth me), gave it unto his Son to this end, that therewith
he should espouse a Wife, like as _Abraham_ delivered unto his
Servant Bracelets and Ear-Rings of Gold, which he gave to _Rebecca_,
when he chose her to be _Isaacks_ Wife.... But the first Ring
was not of Gold, but of Iron, adorned with an Adamant, the Metal
hard and durable, signifying the continuance and perpetuity of the
Contract; the vertuous Adamant drawing the Iron unto it, signifying
the perfect unity and indissoluble Conjunction of their minds, in
true and faithful love; Howbeit it skilleth not at this day, what
Metal the Ring be; The form of the Ring being circular, that is,
round, and without end, importeth thus much, that their mutual love
and hearty affection should roundly flow from the one to the other,
as in a Circle, and that continually, and for ever; The Finger on
which this Ring is to be worn is the fourth Finger of the left hand,
next unto the little Finger; because by the received Opinion of the
Learned and Experienced in Ripping up, and anatomizing Mens Bodies,
there is a Vein of Blood which passeth from that fourth Finger unto
the Heart, called _Vena amoris_, Love's Vein. And so the wearing of
the Ring on that Finger signifieth, that the love should not be vain
or fained, but that as they did give their Hands each to other, so
likewise they should give their Hearts also, whereunto that Vein is
extended. Furthermore I do observe, that in former Ages it was not
tolerated to single or unmarried Persons to wear Rings, unless they
were Judges, Doctors, or Senators, or such like honourable Persons:
So that being destitute of such Dignity, it was a note of Vanity,
Lasciviousness, and Pride for them to presume to wear a Ring,
whereby we may collect how greatly they did honour and reverence the
Sacred Estate of Wedlock in times past, in permitting the Parties
affianced to be adorned with the honourable Ornament of the Ring: As
also the Vanity, Lasciviousness, and intolerable Pride of these our
days, wherein every skipping Jack and every flirting Jill, must not
only be ring'd (forsooth) very daintily, but must have some special
Jewel or Favour besides, as though they were descended of some noble
House or Parentage, when as all their Houses and whole Patrimony
is not worth the Ninth part of a Noble; or else, as if they were
betrothed or assured in the holy Band of Wedlock, when as indeed,
there is no manner of Contract betwixt them, unless peradventure it
be such a Contract as _Judah_ made with _Thamar_, ... which bargain
he concluded by delivering her a Ring."[1210]
[1209] SWINBURNE, _Of Spousals_, 203 ff. Whether the
ring alone, without the usual words of assent, is a sufficient
sign of contracting espousals or marriage, depends on its
presentation in solemn form or upon local or national custom:
_ibid._, 209-12.
[1210] SWINBURNE, _op. cit._, 207-9. The symbolism
of the ring is explained in the same spirit by MARTIN
BUCER, _Script. Anglic._ (Basel, 1577), _Censur. in ordinat.
eccles._, cap. xx, pp. 488, 489: WHITGIFT, "Defence of
the Answer," _Works_, III, 353 n. 11. (_Cf._ chap. xi, below,
where this passage is quoted.) The early rituals, as we have
seen (above, chap, vii, sec. 1), quote the Decree of Gratian as
authority for the "vein extending to the heart."
This curious passage is here quoted at length, not because it has
historical value, but because the author has condensed therein the
symbolism, conceits, and folklore connected with the betrothal
ring as these are found in the writings of the canonists, whom he
carefully and minutely cites in the margin.[1211]
[1211] On the archæology of the ring see further SAXSE,
_Arcana annuli pronubii_, 68 ff.; WOOD, _The Wedding
Day_, 217-34; WHEATLEY, _Illustrations of the Common
Prayer_, 437-40; BRAND, _Popular Antiquities_, II,
102 ff.; DOUCE, _Illustrations of Shakespeare_, I,
109 ff.; JEAFFRESON, _Brides and Bridals_, I, 138-66;
_Gentleman's Magazine_, 1795, pp. 727, 728, 987; also _Gent. Mag.
Library: Manners and Customs_, 54-57; _Notes and Queries_, 3d
series, VII, 12, 307, 350, 387 (metal of the ring); 5th series,
XII, 407, 474, 514. The fourth finger in connection with the
vein to the heart is mentioned by AULUS GELLIUS, lib.
x, c. 10; also by MACROBIUS, _Saturnal._, lib. vii, c.
13, who "quotes the opinion of Ateius Capito, that the right
hand was exempt from this office because it was much more useful
than the left hand, and therefore the precious stones of the
rings were liable to be broken; and that the finger of the left
hand was selected which was the least used."--_Gent. Mag. Lib._,
_loc. cit._, 54. The mediæval marriage ceremony is described by
CHAUCER, _Merchant's Tale_, ll. 450-509 (ed. Morris,
London, 1891), 332-333.
Before the act of 1753 persons contracting espousals _de praesenti_
might be compelled to celebrate matrimony _in facie ecclesiae_,
under penalty for refusal of excommunication by the spiritual
and imprisonment by the secular power;[1212] but in case of a
mere contract _de futuro_, if either party refused to keep his
engagement, he was rather to be "admonished than compelled." The
"judge is not to proceed to the _Significavit_, but rather to
absolve that cursed Party which contemneth the Censures of the
Church, albeit there be no Cause of favour, but fear of further
mischief, by compelling them to go together, which hate one another.
Yet is not this froward Party thus to be dismissed, but is to suffer
pennance" for breach of faith.[1213]
[1212] _Cf._ 2 and 3 Ed. VI., c. 23, cited above; and
HOOPER, _Later Writings_, II, 138.
[1213] SWINBURNE, _op. cit._, 231,232; BURN,
_op. cit._, 138, 139, 140.
II. AS TO THE NATURE OF MARRIAGE
In its practical results, therefore, the Reformation had little
effect on law and theory as to the _form_ of wedlock. For England
it had no significance at all; and the same is true of Germany,
except so far as Luther's view of the _sponsalia_ may have found
some expression in legislation and judicial decree. With respect to
the _nature_ of marriage the case is very different. The dogma of
its sacramental character was abandoned throughout the Protestant
world.[1214] In its place a new conception arose; and it is very
instructive to trace the process of change in the mind of Luther
himself.[1215] As late as 1519 he declares that "the marriage state
is a sacrament," an outward "symbol of the greatest, holiest,
noblest, most worthy thing that has ever existed or can exist:
the union of the divine and human natures in Christ;"[1216] and
this symbol he explains entirely in harmony with the "dogmatism of
the Middle Ages, notably that of St. Thomas Aquinas, who sought
the motive of marriage sacrament in legalization of the sensual
impulse."[1217] In the very next year, however, and again in 1539,
he expresses himself decisively against the ancient Catholic
doctrine.[1218] Nevertheless in his various attempts to define the
matrimonial state an apparent contradiction is presented which is
hard to reconcile, and which is of great significance in the long
struggle for the instituting of civil marriage. On the one hand,
though not technically a sacrament, marriage is described as holy,
a "most spiritual" status, "ordained and founded" by God himself.
It is the source of domestic and public government, the foundation
of human society, which without it would "fall to pieces."[1219]
So holy is the state of matrimony, in Luther's conception, that
he must perforce still use the term "sacrament" to convey his
meaning.[1220] On the other hand, his writings contain passages of
a very different tenor. "So many lands, so many customs, runs the
common saying. Therefore since weddings and matrimony are a temporal
business, it becomes us clerks and servants of the church to order
or rule nothing therein, but to leave to each city and state its own
usages and customs in this regard."[1221] Elsewhere, in words which
anticipate the sentiment of Milton by a hundred years, he insists
that "matrimonial questions do not touch the conscience, but belong
to the temporal power," warning the clergy not to meddle with them
unless commanded by that authority.[1222] Marriage, he emphatically
declares, is a "temporal, worldly thing" which "does not concern the
church."[1223]
[1214] In general on the Protestant theory of marriage see
FRIEDBERG, _Geschichte der Civilehe_, 6 ff.; _idem_,
_Eheschliessung_, 153-98; RICHTER, _Lehrbuch_, 1050 ff.
[1215] The selections from Luther's writings relating to the
nature of marriage and the question of its sacramental character
take up the first 215 pages of STRAMPFF'S _Dr. Martin
Luther: Ueber die Ehe_.
[1216] LUTHER, "Vom ehelichen Stande," _Bücher
und Schriften_ (Jena, 1564), I, fol. 170_b_; also in
STRAMPFF, 205.
[1217] FRIEDBERG, _Eheschliessung_, 157.
[1218] LUTHER, _Von der Babylonischen gefencknuss
der Kirchen_; _idem_, _Von den Conciliis und Kirchen_ (1539):
quoted by FRIEDBERG, _op. cit._, 157, 158, notes. These
passages and others in STRAMPFF, 205 ff., 213 ff.
[1219] LUTHER, "Das siebend Capitel St. Paul zu den
Corinthern ausgelegt" (1523), _Bücher und Schriften_ (Jena,
1555), II, fol. 297; _idem_, "Auslegung des ersten Buch Moses"
(1536-45), _ibid._ (Jena, 1556), IV; or STRAMPFF,
163-203. See the passage quoted by FRIEDBERG,
_Eheschliessung_, 158. For similar expressions compare
_Tischreden_, foll. 350, 352, etc.
[1220] LUTHER, "Auslegung des ersten Buch Moses"
(1536-45), _loc. cit._, fol. 145_a_. _Cf._ FRIEDBERG,
_op. cit._, 157.
[1221] "So manchs Land, so manch Sitte, sagt das gemeine
Sprüchwort; demnach, weil die Hochzeit und Ehestand ein weltlich
Geschäft ist, gebührt uns Geistlichen oder Kirchendienern
nichts darin zu ordenen oder regieren, sondern lassen einer
iglichen Stadt und Land hierin ihren Brauch und Gewohnheit, wie
sie gehen."--LUTHER, "Der kleine Katechismus mit dem
Traubüchlein, Vorrede" (1529), in STRAMPFF, 340, 341,
422. Again LUTHER says: "Es kan ja niemand leugnen,
das die Ehe ein eusserlich weltlich ding ist, wie Kleider und
Speise, Haus und Hofe, weltlicher Oberkeit unterworffen."--"Von
Ehesachen," _Bücher und Schriften_ (1561), V, fol. 237.
[1222] Ehesachen gehen die Gewissen nicht an, sondern gehören
für die weltliche Oberkeit; darumb schlage sich keiner
drein, die Oberkeit befehl es denn, sprach D. M. L. zu den
Predigern."--_Tischreden_, fol. 369. In another passage, speaking
of the breach of the marriage vow and divorce, he says: "Solche
fälle gehören eigentlich der Oberkeit; denn die Ehe ist ein
weltlich ding, mit allen iren umbstenden; gehet die Kirch nichts
an, denn so viel es die Gewissen belanget."--_Ibid._, fol. 368.
_Cf._ FRIEDBERG, _Eheschliessung_, 160.
[1223] LUTHER, _Tischreden_, fol. 369. See the
passages relating to the "weltliche Regiment in Ehesachen," in
STRAMPFF, 411-30, with the author's critical essay.
Thus Luther provided the arsenal from which both the friends and the
foes of civil marriage drew their weapons. His name, says Friedberg,
became the "battle-cry," the "shield and mantle," of the contending
factions; and while urging that Luther must be regarded as the
champion of marriage as a "worldly thing," the same writer points
out the two powerful motives which may in large measure account
for this apparent contradiction.[1224] First, the evils growing
out of the ecclesiastical jurisdiction in matrimonial causes were
becoming an intolerable burden to Christendom; and only by denying
the sacramental nature of marriage could the way be cleared for
a transfer of that jurisdiction to the secular courts. Secondly,
the abuses connected with sacerdotal celibacy were scarcely less
threatening. The licentiousness of the clergy was "beyond belief."
Many "bishops were at last content to convert the vows of celibacy
into sources of revenue, suffering the clergy to live in concubinage
in return for a yearly tax;"[1225] and yet the "ill preserved
chastity of the priesthood was interpenetrated then as before by
a profound contempt for the marriage state."[1226] Hence Luther
proclaimed the natural and scriptural right of priests to marry; and
rejecting the low ascetic ideal he laid stress on the purity and
holiness of marriage as an institution ordained of heaven.[1227]
But, after all, this doctrine is not so entirely out of harmony
with the view that matrimony is a "worldly thing;" for with the
Reformation a new conception of the temporal power arose. During
the Middle Ages the contrast was not between church and state, as
the latter is now understood; but between the "unholy world and
the holy church." Hence the state, because it was comprehended
under the conception of the world, "partook of its unholiness. The
Reformation formulated the antithesis differently. It released
the state from its shell of 'worldliness,' ascribed to it ethical
tendencies, and made it the bearer of morality. Formerly the state
was unholy, because it belonged to the world; now the world became
ethical, because it fell within the sphere of the state, for the
state itself was moral."[1228] Thus, in the sixteenth century, the
conception of the "Christian state" and of the "Christian prince,"
to which Erasmus gave such fine expression, became thoroughly
established.[1229] Theoretically church and state were kept apart;
but practically they were united; for the idea of a "state church"
no longer gave a shock to the religious sense. Accordingly the king
as the Lord's anointed became the defender of the faith and the
source of ecclesiastical authority.
[1224] FRIEDBERG, _op. cit._, 160-75.
[1225] _Ibid._, 166. See TYNDALE, _Answer to More_, 29
n. 4: "More saith in his _Conf._ (p. ccliiii), 'Syth the marriage
(of a priest) is no marriage, it is but whoredom itself. And
I am sure also that it defileth the priest more than double
and treble whoredom.'" Tyndale accuses the pope of opposing
God's law in denying marriage to priests and by dispensations
licensing concubinage for money, "as through Dutchland every
priest, paying a gildren unto the archdeacon, shall freely and
quietly have his whore, ... as they do in Wales, in Ireland,
Scotland, France, and Spain;" and in "England, thereto, they be
not few which have" such licenses. When the parishes go to law
to make them put away their concubines, "the bishop's officers
mock them, poll them, and make them spend their thrifts and the
priests keep their whores still."--_Ibid._, 40, 41 n. 4, and the
documents there quoted. _Cf._ COVERDALE, _Remains_, 484;
TYNDALE, _Doc. Treatise_, 232; HUTCHINSON,
_Works_, 202; and especially JEWELL'S controversy with
Harding in "Defence of the Apology," _Works_, IV, 629 ff., 640
ff. On the prevalence of concubinage in England during the
Middle Ages see STUBBS, _Const. Hist._, III, 372;
MAKOWER, _Const. Hist. Eng. Church_, 217-20, notes,
who declares that from the close of the twelfth century onward
a priest was punished less severely for fornication than for
marrying. "Loss of office is the penalty only for a breach of
the prohibition to marry," not for fornication, unless very
notorious: _op. cit._, 217. Compare JOHNSON, _Canons_,
II, 26, 33, 40, 80, 81, 114, 132; and 2 and 3 Ed. VI.: GEE
AND HARDY, _Documents_, 367, for complaints of this evil.
See the literature on the evils of celibacy cited in chap. viii.
[1226] FRIEDBERG, _Eheschliessung_, 166. For Germany
compare KAWERAU, _Die Reformation und die Ehe_, 1-40.
[1227] LUTHER, "Bedenken und Unterricht von den
Klöstern" (1522), _Kleinere Schriften_, II, 45-73; _idem_, _An
die herrn deutschs Ordens_ (1523); and BUGENHAGEN, _De
conjugio episcoporum et diaconorum_ (1525).
[1228] FRIEDBERG, _op. cit._, 175.
[1229] FRIEDBERG, _Eheschliessung_, 173, 175. He finds
traces of the idea of a Christian state in the writings of Huss
and Tauler: _ibid._, 173 n. 8.
With Luther's teachings regarding the nature of marriage the German
Protestant leaders were mainly agreed.[1230] In his reaction
against celibacy and asceticism, however, he went to an extreme
where all could not follow him. There were doubtless many persons
attached to the new doctrines who were inclined to tolerate or
sanction concubinage and even polygamy.[1231] But the "double
marriage" of the landgrave of Hesse, which was sanctioned by
Luther, Melanchthon, and Bucer, created a scandal for which the
majority were not willing to be held responsible. Indeed, from the
tone of the decision of Luther and his colleagues it seems clear
that they were conscious of treading on dangerous ground.[1232]
Regarding another important point the Reformers were not entirely
in harmony. The abuses arising in the complex law relating to
forbidden degrees and the other canonical impediments, it was felt,
ought to be remedied. But there was much divergence of opinion
as to the "exact content of the reform needed and even as to the
principle which ought to be followed. Should simply a return be
made to the Mosaic or to the Roman law?" Or should the canon law be
retained with certain modifications?[1233] All were agreed that the
hindrance of spiritual kinship must be absolutely abandoned; and
there was a tendency to allow intermarriage within the third degree
of affinity and consanguinity.[1234] But there was much diversity
in legislation and judicial practice, the rules of the Levitical
code being followed with varied interpretations.[1235] By the old
Protestant law and doctrine, as well as by the rule of the mother
church, _disparitas cultus_, or difference of religious faith, was
regarded as an impediment to wedlock. Marriages between Christians
and non-Christians were positively forbidden.[1236] In like spirit,
unions between adherents of different Christian confessions were
either entirely prohibited or else severely discouraged.[1237] Such
intolerance was sure to produce the natural bitter fruit; and the
controversy over these "mixed marriages" has perpetuated itself to
our own times.[1238]
[1230] For example see BULLINGER, _Der christ.
Ehestand_, lvs. 3 ff.; MELANCHTHON, "De conjugio,"
_Opera_, I, pars ii, 221, 222; MENTZER, _De
conjugio tr._, 1 ff.; FORSTER, _De nuptiis_, 1 ff.;
SARCERIUS, _Vom heil. Ehestande_, foll. 1-12; _idem_,
_Corpus juris mat._, foll. 1-11. Compare the sentiments of
ERASMUS, _De matrimonio christiano_, 2 ff., _passim_.
[1231] RICHTER, _Beiträge zur Gesch. des
Ehescheidungsrechts_, 46 ff.; FORSTER, _De nuptiis_, 44.
[1232] See the "Bedencken" and the other documents in the
case in ARCUARIUS, _Betrachtung_, 210 ff., 220 ff.
Consult GOTTLIEB WARMUND (JOHANN LYSER?),
_Gewissenhaffte Gedancken vom Ehestande_, first six pages; and
the literature mentioned in Bibliographical Note IX.
[1233] SCHEURL, "Zur Lehre von dem Ehehindernisse der
Verwandtschaft," _ZKR._, XVI, 1-34, giving a clear account of the
Protestant doctrine and its relation to the canon law. Compare
his _Das gemeine deutsche Eherecht_, 183 ff., 195 ff.
For Luther's views on impediments, including the forbidden
degrees, consult the collection of writings in STRAMPFF,
215 ff., 228 ff.; and compare ERASMUS, _De mat.
christ._, 94 ff., 100 ff.; MELANCHTHON, "De
conjugio," _Opera_, I, pars ii, 223 ff.; _idem_, "De arbore
consang.," in SARCERIUS, _Vom heil. Ehestande_,
foll. 12 ff.; BULLINGER, _Der christ. Ehestand_,
lvs. 16 ff.; or the same in SARCERIUS, _op. cit._,
foll. 44 ff.; SCHNEIDEWIN, _De nuptiis_, tit. x,
"De arbore affinitas," secs. 1-23; BEUST, _Tr. de
spons. et mat._, 23, 24, 225 ff.; KLING, _Tr. mat.
caus._, 43-58; BIDEMBACH, _De causis mat. tr._, 37
ff.; MENTZER, _De conjugio tr._, 60 ff., 70 ff.;
BROUWER, _De jure connub._, 435 ff., 444 ff., 461 ff.
[1234] See the Dresden resolutions of 1653 in
SCHLEUSNER, "Zu den Anfängen protest. Eherechts,"
_ZKG._, VI, 411, 412; also in MEJER, "Zur Gesch. des
ält. protest. Eherechts," _ZKR._, XVI, 36, 37; _idem_, _Zum
Kirchenrecht_, 147-71.
[1235] RICHTER, _Lehrbuch_, 1089; FRIEDBERG,
_Lehrbuch_, 296-336; _idem_, "Beiträge zur Geschichte des
brand.-preuss. Eherechts," _ZKR._, VI, 90-135, particularly 129
ff.; _idem_, "Aus der protest. Eherechtspflege des 16. Jahrh.,"
_ibid._, IV, 304-49, discussing the case of Zaschwitz and
communicating important documents of Melanchthon which disclose
his liberal views regarding affinity. The church ordinances
regarding impediments are analyzed by GOESCHEN,
_Doctrina de mat._, 9 ff., 30 ff. Compare his article "Ehe," in
HERZOG'S _Encyclopaedie_, III, 674-80.
[1236] Luther, however, was more tolerant, refusing to accept
difference of religion as a proper hindrance to marriage: see the
passages collected by STRAMPFF, 282, 283. On the other
hand, MELANCHTHON, "De conjugio," _Opera_, I, pars ii,
235, 236, disapproved of such unions. Compare ERASMUS,
_De mat. christ._, 108, 109. The law was gradually relaxed,
especially in favor of intermarriage with Jews, and it is now
abrogated under the imperial legislation: RICHTER,
_Lehrbuch_, 1110, 1111; SCHEURL, _Das gemeine deutsche
Eherecht_, 218, 219; _idem_, _Kirchenrecht. Abhandlungen_, 521;
FRIEDBERG AND WASSERSCHLEBEN, "Zwei Gutachten," _ZKG._,
IX.
[1237] Thus, according to _Des Herzogthums Wirtemberg erneuerte
Ehe- und Ehe-Gerichts-Ordnung_ (1687), 96-99, mixed marriages are
not absolutely prohibited; but the parties are to be "dehortirt;"
the peril to their souls is to be pointed out; a special order
procured for the nuptials; while the evangelical party is to be
admonished to have the marriage celebrated in some evangelical
place abroad, to frequent the orthodox services and sacraments,
and to have the future children brought up in the orthodox
religion.
[1238] SCHEURL, _Das gemeine deutsche Eherecht_, 219-21;
RICHTER, _Lehrbuch_, 1201 ff., 1207 ff., especially nn.
28, 30, 32, 45; SCHOTT, _Einleit. in das Eherecht_, 123,
124.
In general for the controversy regarding mixed marriages see the
literature described in Bibliographical Note IX.
In England as well as in Germany the law and judicature of the
church rested on the sanction of the state.[1239] This is the
fundamental fact in the history of the English revolt from Rome.
But, owing to the peculiar circumstances of that revolt, the
investiture of the king with the headship of the church was
very unfortunate. Henry VIII. clung to the old doctrines. A
stumbling-block was thus placed in the way of intellectual and
spiritual progress which in the end cost a second revolution
to remove. The effects of this unlucky settlement are plainly
discernible in the ecclesiastical conception of marriage. If the
teachings of the fathers of the English church[1240] be examined
for the period between the death of Wolsey and the death of
Elizabeth, it will be found that they are less bold, showing more
of the spirit of compromise with the mediæval doctrines, than are
those of Luther and his immediate followers on the continent. Not
a single clear voice, apparently, is raised for civil marriage.
Technically matrimony as a sacrament is rejected by all,[1241]
though its sacramental nature was first definitely denied by the
church in the Thirty-nine Articles of 1552.[1242] It is, however,
something more than a mere civil status. It is, declares Fulke,
"nothing else but a devilish slander to say that we 'esteem it but
in respect of the flesh, or for a civil contract.'"[1243] Tyndale
calls matrimony "a similitude of the kingdom of heaven;"[1244] and
in general it is held to be a holy institution, "ordained by God
himself in Paradise."[1245] It represents the union of Christ and
the church;[1246] and it is "pure," "dignified," and "honorable" for
all men.[1247] Hence the natural and scriptural right of priests to
marry is vindicated;[1248] and, following St. Paul, the forbidding
of them to marry is called a "doctrine of devils."[1249]
[1239] In Germany, at the Reformation, matrimonial jurisdiction
fell partly into the hands of the parish clergy, partly into the
hands of secular judges. The former in their decisions followed
mainly the Roman law and the scriptural teachings under the
guidance of Luther and other great theologians; while the lay
judges were guided by the _corpus juris canonici_. Confusion
arose; the law was carelessly and ignorantly administered; and so
a demand was made for special courts for matrimonial questions.
This resulted, generally, in the relegation of matrimonial
causes to the newly created consistories, composed partly
of spiritual and partly of temporal judges, who in practice
followed the principles of the canon law and constituted in fact
ecclesiastical courts. Compare the very interesting decisions of
the consistory court of Wittenberg, already quoted, beginning
soon after its formation, in SCHLEUSNER, _Anfänge des
prot. Eherechts_, 130-62. It can scarcely be said that the evils
of matrimonial law and administration in Germany were very
much lessened as a result of the Reformation during the first
two centuries after Luther. See the minute investigation of
FRIEDBERG, _Eheschliessung_, 177 ff., 186 ff.; and his
_Geschichte der Civilehe_. Compare the discussion of the rise of
matrimonial jurisdiction in chap. xi.
[1240] See the _Works of the Fathers and Early Writers of the
Reformed English Church_, published by the Parker Society in a
long series of volumes. There is an excellent index, six columns
of which are devoted to "marriage."
[1241] Matrimony is no sacrament, except in the general sense
of "mystery": CRANMER, _Misc. Writings_, 115, 116;
TYNDALE, _Doctrinal Treatises_, I, 254; _idem_, _Answer
to More_, 175; CALFHILL, _An Answer to John Martiall's
Treatise of the Cross_, 235 ff.; ROGERS, _The Catholic
Doc. of the Church of England, an Exposition of the Thirty-Nine
Articles_, 260 ff.; FULKE, _Answer_, 229, 243; _idem_,
_Defence against Gregory Martin_, 168, 492-96; JEWELL,
_Works_, II, 1125; WHITAKER, _Disputation on Holy
Scripture against the Papists_, 197, 489.
[1242] FRIEDBERG, _Eheschliessung_, 309 n. 1. "Henry the
VIII. stood so far upon the ground of the canonical doctrine that
before and after his breach with Leo X. he declared marriage to
be a sacrament."--_Ibid._
[1243] FULKE, _Defence against Gregory Martin_, 492.
[1244] TYNDALE, _Answer to More_, 175.
[1245] JEWELL, _Works_, II, 1128; LATIMER,
_Sermons and Remains_, 161, 162; HUTCHINSON, _Works_,
148; BECON, _Prayers_, 27, 611; BULLINGER,
_Decades_, I, 394, 397; BRADFORD, _Writings_, I, 167;
TYNDALE, _Doctrinal Treatises_, 254.
[1246] BULLINGER, _Decades_, I, 397; PHILPOT,
_Examinations and Writings_, 246; SANDYS, _Sermons_,
317, 313-30 (marriage in general); TYNDALE, _Doc.
Treatises_, 254; _idem_, _Answer to More_, 153, 154.
[1247] CALFHILL, _Answer_, 238-41; BULLINGER,
_Decades_, I, 394, 396; HOOPER, _Early Writings_, 375;
_idem_, _Later Writings_, 55; JEWELL, _Works_, I,
158; II, 1128; IV, 803; LATIMER, _Sermons_, I, 366,
393; _idem_, _Sermons and Remains_, 160, 162; SANDYS,
_Sermons_, 313, 314; TYNDALE, _Expositions_, 125.
[1248] Authorized by 2 and 3 Ed. VI., c. 21, 1549, which was
confirmed in 1552: CRANMER, _Misc. Writings_, p. x;
LATIMER, _Sermons_, 529 n. 3; _Zürich Letters_, II, 159;
_Statutes at Large_, II, 283, 305, 306.
[1249] LATIMER, _Sermons and Remains_, 77, 162;
HOOPER, _Early Writings_, 375; _idem_, _Later Writings_,
55, 56, 126; BULLINGER, _Decades_, IV, 509. _Cf._
ROGERS, _Thirty-Nine Articles_, 302-7; BECON,
_Prayers_, 235 ff.; COVERDALE, _Remains_, 483-85;
PILKINGTON, _Works_, 564; TYNDALE,
_Expositions_, 29, 151, 155, 156; _idem_, _Doc. Treatises_, 230;
JEWELL, _Works_, II, 882; III, 406; CRANMER,
_Misc. Writings_, 393 n. 5, also pp. viii, x. For many other
references see the Index to the Parker Society _Publications_, at
"Marriage of Clergy."
Still the new teaching did not at once find expression in the law of
the land. Under its influence, at the beginning of the Reformation,
some of the clergy, notably Archbishop Cranmer, married; but Henry
VIII. tenaciously clung to the doctrine of clerical celibacy and
issued several proclamations against the marriage of priests.[1250]
Thus in 1535 "his majestie understanding that a few number of this
his realme being priests, as well religious as other, have taken
wives, and married themselves," and not wishing the "generalitie of
the clergy" to follow their example, doth command all such priests
"as have attempted marriages" or shall "hereafter presumptuously
proceed in the same, that they nor any of them shall minister any
sacrament or other ministry mysticall, nor have any office, dignity,
cure, privilege, profitt or commoditye heretofore accustomed, and
belonging to the clergie of this realme, but shall utterly after
such marriages be expelled and deprived from the same, and be
had and reputed as lay persons, to all purposes and intents. And
that such as shall after this proclamation ... take wives, and be
married, shall run in his grace's indignation, and suffer further
punishment and imprisonment at his grace's will and pleasure."[1251]
Proclamations[1252] of like nature were later enacted; and finally
the six-articles law of 1539 provided that all marriages or
matrimonial contracts, made by priests or between a man and a woman
either of whom has vowed chastity, before or during "this present
parliament," shall "be utterly void and of none effect;" while any
future transgression is to be punished as felony.[1253] Nevertheless
Cranmer was allowed to retain his wife; and through his influence
the penalties prescribed by the six-articles act were somewhat
modified in 1540.[1254]
[1250] MAKOWER, _Const. Hist. Eng. Church_, 220-24,
gives an excellent discussion, with quotations from the sources,
of the laws relating to the marriage of priests from Henry VIII.
to James I.
[1251] WILKINS, _Concilia_, I, 776. Compare
MAKOWER, _op. cit._, 220 n. 17.
[1252] There were "similar proclamations of 16th November, 1538
(Strype, _Cranmer_, ed. 1812, I, 98) and of 1539 (Wilkins, III,
847). The proclamations had the force of law, as can be seen from
31 Hen. VIII. (1539), c. 8."--MAKOWER, _op. cit._, 221,
note. _Cf. Statutes at Large_, II, 143.
[1253] This statute (31 Hen. VIII., c. 14) may be found in
GEE AND HARDY, _Documents_, 303-19; an abstract in
MAKOWER, _op. cit._, 221 n. 19; and a summary in
_Statutes at Large_, II, 149. Compare the comments on the act
as showing matrimony "to have been a more grievous offence than
concubinage," in _New Monthly Review_, XXIX (1763), 270.
[1254] By 32 Hen. VIII., c. x: MAKOWER, _op. cit._, 221
n. 20.
Under Edward VI. the doctrine of the Reformation gained a victory.
The six-articles law was repealed in 1547.[1255] In the same year
the lower house of convocation prayed "that all provisions against
clerical marriages might be set aside and all vows of chastity
pronounced void."[1256] Accordingly by 2 and 3 Edward VI. (1548), c.
21, the obstacles to such unions were formally swept away on grounds
of expediency; though the act sanctions the ancient prejudice
by declaring that "it were not only better for the estimation
of priests, and other ministers in the Church of God, to live
chaste, sole, and separate from the company of women and the bond
of marriage, but also thereby they might the better intend to the
administration of the gospel, and be less intricated and troubled
with the charge of household, being free and unburdened from the
care and cost of finding wife and children, and that it were most
to be wished that they would willingly endeavour themselves to a
perpetual chastity."[1257] This clause was explained by the act of
5 and 6 Edward VI. (1551-52), c. 12, "as meaning not simply that
the marriages in question were exempt from punishment, but that
they were good and lawful marriages, the offspring of which were
legitimate and could inherit in the usual way, and that priests
might be tenants by courtesy on the death of their wives, and wives
endowable of their lands."[1258]
[1255] By 1 Ed. VI., c. 12 (1547): _Statutes at Large_, II, 256.
[1256] MAKOWER, _op. cit._, 222; _ap._ WILKINS,
_Concilia_, IV, 16. _Cf._ GEE AND HARDY, _Documents_,
366.
[1257] _Ibid._, 367: _Statutes at Large_, II, 283. On the
debates and controversial writings connected with this act see
BURNET, _Hist. of Reformation_, I, 354-58. By the
Injunctions of 1548, in the visitations inquiry is to be made
whether any "do condemn married priests, and for that they be
married will not receive the communion or other sacraments at
their hands."--CARDWELL, _Doc. Annals_, I, 51.
[1258] Summary of the statute by MAKOWER, _op. cit._,
222. _Cf. Statutes at Large_, II, 305; BURNET, _Hist.
of Reformation_, I, 432.
After the accession of Mary, a royal ordinance again prescribed
celibacy as the condition of holding priestly office.[1259] The
matrimonial laws of Edward's reign were repealed;[1260] and it
is significant of Elizabeth's conservative position on religious
questions that those enactments were not restored on her coming
to power. She was shocked at the marriage of priests and was very
reluctant to sanction it by statute. "The Queen's majesty," writes
Sandys to Parker in 1559, "will wink at it but not stablish it by
law, which is nothing else but to bastard our children;"[1261] and
two years later, according to Cecil, "her majesty continueth very
evil affected to the state of matrimony in the clergy. And if [I]
were not therein very stiff," she "would utterly and openly condemn
and forbid it."[1262] Yet already by her first Injunctions, 1559,
she had grudgingly given her consent to clerical marriage, though
it was hampered by severe conditions. "It is thought therefore very
necessary, that no manner of priest or deacon shall hereafter take
to his wife any manner of woman without the advice and allowance
first had upon good examination by the bishop of the same diocese,
and two justices of the peace of the same shire, dwelling next to
the place, where the same woman hath made her most abode before
her marriage; nor without the good will of the parents of the said
woman, if she have any living, or two of the next of her kinsfolk,
or, for lack of knowledge of such, of her master or mistress, where
she serveth." If "any shall do otherwise," he is forbidden to
administer either the "word" or the "sacraments," and is declared
incapable of "any ecclesiastical benefice." The marriage of a bishop
is allowed only on approval of the "metropolitan of the province"
and of "such commissioners" as the queen may appoint; while the
master, dean, or head of a college must obtain the consent of those
to whom the right of visitation belongs, who shall provide that the
marriage "tend not to the hindrance of their house."[1263] Two years
later "the queen further ordained that, upon pain of forfeiting
his office, no head or member of any college or cathedral church
should have his wife or other woman within the precincts,"[1264]
and "in the thirty-nine articles of 1563 the marriage of the clergy
was recognized as permissible."[1265] Still throughout the reign
of Elizabeth, apparently, clerical marriages continued to be
resisted; for "in the _Millenary Petition_ addressed by the Puritans
to James I. at his accession, among other requests was one for
the restoration of the laws of Edward VI. as to the marriage of
priests.[1266] That restoration and, consequently, the repeal of the
obstructing act of Mary were accomplished" in 1603.[1267]
[1259] See the "Articles of Queen Mary, 4th March, 1553,"
in CARDWELL, _Doc. Ann._, I, 112, 113; also
MAKOWER, _op. cit._, 222 n. 26. Such married priests,
"after deprivation of their benefice, or ecclesiastical
promotion," are to "be also divorced every one from his said
woman, and due punishment otherwise taken for the offence
therein." But the bishops are to "use more lenity and clemency
with such as have married, whose wives be dead, than with others
whose women do yet remain alive;" as also with those who, with
their wife's consent, in the bishop's presence, promise to
"abstain." _Cf._ BURNET, _Hist. of Reformation_, I, 490,
who says "many were set to write against the marriage of the
clergy."
[1260] See 1 Mary, stat. 2, c. 2, 1553: GEE AND HARDY,
_Documents_, 377-80.
[1261] PARKER'S _Correspondence_, 66.
[1262] _Ibid._ (Cecil to Parker, Aug. 12, 1561), 148. Parker
replies: "I was in an horror to hear such words to come from her
mild nature and christianly learned conscience, as she spoke
concerning God's holy ordinance and institution of matrimony;"
and he complains that she holds that the English clergy "alone
of our time" are "openly brought in hatred, shamed and traduced
before the malicious and ignorant people, as beasts without
knowledge to Godward, in using this liberty of his word, as men
of effrenate intemperancy.... Insomuch that the Queen's Highness
expressed to me a repentance that we were thus appointed in
office, wishing it had been otherwise."--_Correspondence_, 156,
157. Marriage of priests was defended by COX, _ibid._,
151.
[1263] GEE AND HARDY, _Documents_, 431, 432;
PROTHERO, _Statutes and Documents_, 184 ff.;
CARDWELL, _Doc. Ann._, I, 192, 193; MAKOWER,
_op. cit._, 223 n. 27; BURNET, _Hist. of Reformation_,
I, 577. These regulations of marriage are mentioned by
PERCIVAL WIBURN in _Zürich Letters_, II, 359.
_Cf. ibid._, II, 61 n. 129; I, 164, 179, 358. Compare the
hostile "Articles of Visitation" of Bishop Bonner, 1554:
CARDWELL, _op. cit._, I, 125, 126; and compare _ibid._,
153, 171, 172.
[1264] MAKOWER, _op. cit._, 223 n. 28;
CARDWELL, _Doc. Ann._, I, 273.
[1265] See the extract from the thirty-second article in
MAKOWER, _op. cit._, 223 n. 29.
[1266] MAKOWER, _op. cit._, 223, 71. The _Millenary
Petition_ is in GEE AND HARDY, _Documents_, 508-11;
PROTHERO, _Statutes and Documents_, 413-16; according to
Makower, in PERRY, _Hist. Eng. Church_, II, 372, c. 22,
notes and illustrations; COLLIER, _Eccles. Hist._, ed.
1852, VII, 273.
[1267] By 1 James I., c. 25, sec. 8: PROTHERO, _Statutes
and Documents_, 255; _Statutes at Large_, II, 640. _Cf._
MAKOWER, _op. cit._, 224.
In fact, the primitive ascetic ideal was by no means utterly extinct
among the Protestant theologians of the Tudor period. Some, like
Latimer, Fulke, and Hutchinson, insist that matrimony is inferior
to virginity;[1268] and very generally it is still held to be
ordained of heaven, especially as a "remedy" for sin, though more
worthy motives are admitted. According to Bradford, God "has made
womankind, and ordained the state of matrimony," "not only for
the help and community of man, but also for a remedy of man's
infirmity."[1269] Bullinger assigns the usual three reasons "for
which God hath ordained marriage for men to embrace." The "first
cause why wedlock was instituted is man's commodity, that thereby
the life of man might be the pleasanter and more commodious; for
Adam seemed not to live half happily nor sweetly enough, unless he
had a wife to join himself unto; which wife is not in the scriptures
called an impediment or necessary evil, as certain poets and beastly
men who hated women have foolishly jangled."[1270] The "second
cause is the begetting of children for the preservation of mankind;"
and the third is to provide a safeguard against the weakness of the
flesh.[1271]
[1268] "But when thou livest godly and honestly in single
life, it is well and allowable afore God; yea, and better
than marriage."--LATIMER, _Sermons_, 393, 394. _Cf._
FULKE, _Answers_, 228, 383; _idem_, _Defence_, 492;
HUTCHINSON, _Works_, 148; see also CARTWRIGHT,
in WHITGIFT'S _Works_, III, 293. But see the curious
passage in TYNDALE'S _Doctrinal Treatises_, 21, which
should be compared with his argument against the doctrine that
"widowhood and virginity exceed matrimony," _ibid._, 313-15.
[1269] BRADFORD, _Writings_, I, 167.
[1270] BULLINGER quotes in favor of marriage the
views of ANTIPATER, _In sermone de nuptiis_, and
HIEROCLES, _De nuptiis_.
[1271] BULLINGER, _Decades_, I, 394-410. The three
reasons are also given by SANDYS, _Sermons_, 316
ff.; and JAMES I., "Basilikon Doron," _Workes_
(London, 1616), 171. On marriage as a "remedy" _cf._ also
CRANMER, _Misc. Writings_, 115, 116; TYNDALE,
_Expositions_, 125; HOOPER, _Early Writings_, 381;
BECON, _Catechism_, 103.
Thus the change effected by the religious revolution in the
conception of marriage, highly important as it was from a
speculative point of view, was not destined to bear its proper fruit
until after many days. In Germany, after a time, the bolder and more
liberal teachings of Luther were generally ignored; so that by the
middle of the seventeenth century the reactionary theories which had
then gained ascendency were substantially in harmony with the ideas
of the English clergy. In both countries the ecclesiastical courts
still continued to try matrimonial causes in the spirit of the canon
law; and more and more, as the new churches grew in power and became
conservative, did the theological view of the nature of marriage
approach the ancient dogma. "According to the canon law, the church
claimed matrimonial jurisdiction because marriage was a sacrament;
by the Protestants marriage was made almost a sacrament because the
church exercised matrimonial jurisdiction."[1272] Not until the full
triumph of civil marriage in the nineteenth century were the logical
results of the new doctrines at last attained.
[1272] FRIEDBERG, _Eheschliessung_, 192.
III. CHILD-MARRIAGES IN THE AGE OF ELIZABETH
Seldom has a more vivid light been thrown on social conditions
than that afforded for the age of Elizabeth by the depositions
taken in the bishop's court of the diocese of Chester, 1561-66,
and edited for the Early English Text Society by Furnivall in
1897. Their value for the student is enhanced by the very lively
"forewords" of the learned and enthusiastic editor. The evils
naturally flowing from the law and doctrine of espousals are here
realistically disclosed in the "trothplights" and the similar cases
of "clandestine marriages."[1273] There is the usual juggling with
the words of the present or future tense; and the usual puzzling
over conditions and irregular phrases. For the basest of motives
girls are tricked into vows which may or may not prove to be valid
marriages according to the uncertain interpretation of the words or
acts of betrothal sworn to in court. "Ten of the seventeen cases"
of trothplight, says Furnivall, "show us men trying to sneak out of
their contracts when they've had their fill of pleasure with the
women."[1274] Needy and unscrupulous priests, worthy predecessors
of the notorious Fleet parsons, without banns or license, are
seen "solemnizing" the nuptials "accordinge to the book of Common
prayer," in a private house, in a meadow, or on the "heighe waie,"
during "the night season" and "by the lighte of the moone."[1275]
[1273] For the trothplights and clandestine contracts see
FURNIVALL, _Child-Marriages_, xliii-liii, lxii, lxiii,
56-71, 140, 141, 184-202. CHAMBERLAIN, _The Child
and Childhood in Folk-Thought_, 224-33, has made good use of
Furnivall's collection.
[1274] FURNIVALL, _op. cit._, xliii.
[1275] _Ibid._, 140, 141. Further light is thrown on the secret
marriages by the cases of adultery and affiliation: _ibid._,
72-102, 202-204.
The astonishing prevalence of child-marriages is, however, the
most important fact revealed by these documents.[1276] In a
single diocese during the short space of six years, besides three
"ratifications," occurred twenty-eight cases of so-called divorce
or voidance of contracts which were formed in infancy or early
childhood. The age of the persons varies from two to thirteen
years; and in at least ten cases the girl is older than the boy.
It should also be observed that these thirty-one contracts are
merely those brought before the court for confirmation or annulment
after at least one of the parties has reached the age of puberty,
which by the canon law is fixed at twelve for females and fourteen
for males. It is, of course, proper to assume that the number of
child-marriages which never thus came up for settlement was very
much larger than the number of those which did so arise. What the
number for all England may have been during the period, it is
startling to contemplate! Moreover, the majority of these marriages
took place, not among the rich or noble, but among common people
of small means. In a number of instances we are told in the record
that the infant bride or bridegroom was carried before the priest
in someone's arms. Thus, in a case which arose in 1564, a witness
deposes that "he was present bie, when John Somerforth and Jane
Brerton were maried together in the parish church of Brerton about
xij yeres ago ... that he carried the said John in his armes, beinge
at tyme of the said Mariage about iij yeres of age, and spake somme
of the wordes of Matrimonye, that the said John, bie reason of his
younge age, cold not speake hym self, holdinge him in his armes
all the while the wordes of Matrimonie were in speakinge. And one
James Holford caried the said Jane in his armes, beinge at the said
tyme about ij yeres of age, and spake all, or the most parte of,
the wordes of matrimony for her." Being further "required whether
the said marriage was euer ratified bie carnall Copulacion or other
meane, Answereth that, in his Conscience, it was neuer." Another
witness testified to the same facts and added, "it was the youngest
Mariage that euer he was at."[1277]
[1276] _Ibid._, xv-xliii, 1-55, 183, 184. In addition to these
Chester cases FURNIVALL (xxi-xliii) presents very
interesting material regarding child-marriages, some of which
were before or after the age of Elizabeth. Two cases under Henry
VII. and Henry VIII., respectively, are mentioned in _Reports
of the Hist. Manuscripts Commission_, III, 247. Sometimes such
marriages were secured by abduction or conspiracy: see _ibid._,
III, 55, 59, 61 (three cases in the reign of James I.).
[1277] FURNIVALL, _op. cit._, 25, 28.
Looked at from a religious point of view, it would be hard to
imagine a more absurd travesty of "holy wedlock" than such
proceedings conducted by the parish priest.[1278] Nor was there much
sentiment involved in the matter. If the great folk betrothed their
children while babes to escape the king's right of wardship, the
small folk were influenced by like motives on a smaller scale. "If
the parent of either child is mercenary," summarizes Furnivall, "a
money-bargain is made for it: the father of a boy of two, gets from
an older girl's father, 'monie to bie a pece of land,' and executes
a Bond to repay the money if his boy doesn't marry the girl (pp.
6-9). In another case, the boy's father is in debt, 'and to get
somme money of William Whitfield, to the discharge of his debtes,
maried and bargained his sonne to the said Whitfeildes doughter'
(pp. 23, 24). Again, a girl of 3 or 4 is married to a boy of 7
'biecause her frendes thought she shuld have had a lyvinge bie hym'
(p. 4), and her father-in-law is under Bond to marry them (p. 5).
So again, a girl's father says that she married a boy of her own
age, 11-12 'biecause she shold have had bie hym a prety bargane,
yf they cold have lovid, on the other' (p. 12). Another girl of
11 is married to a boy of 9, because, on her father's death, the
boy's father gets the landlord's leave to take-on the girl's house
(p. 10). Another girl of 8 is married to a boy of 10, because the
boy's father feard 'lest he shuld lose his parte of his lyvinge' in
a tenement which he held in common with the girl's protector (p.
14). In another instance, the girl's grandfather 'was a very welthie
man; and it was supposed that he wold have bene good vnto' her & her
boy-husband, 'and bestowid somme good ferme apon her' (p. 32), so a
boy of 12 married her when she was 10. Other children are married
'bie the compulsion of their frendes' (pp. 11, 13, 23 &c.); another
'by a wile' (p. 16), the girl being invited by a relation of the
boy's to come and make merry, and then married to the boy against
her consent. But in one case, a girl arranged her own marriage.
She was 'a bigge damsell & mariageable' (p. 47), that is, past 12,
and evidently fancying a nice boy of 10-11, 'intised hym with two
Apples, to go with her to Colne, and to marry her' (p. 45). No
wonder that this boy 'repentid' next morning, and that others say
'at the tyme of their mariage they knewe not what they did' (p.
15)."[1279]
[1278] In the light of these facts, some of the discussions of
child-marriages in India, often intolerant or condescending, have
a very curious interest; compare the sensible and instructive
paper of REES, "Meddling with Hindu Marriages,"
_Nineteenth Century_, Oct., 1890, 660-76.
[1279] FURNIVALL, _op. cit._, "Forewords," xv, xvi.
According to SWINBURNE, _Of Spousals_, 18 ff., both
by civil and canon law, children are infants until they have
completed the seventh year; and "Spousals contracted during
Infancy are utterly _void_, whether the Infants themselves, or
their Parents for them, do make the Contract." After the close
of that period such void contracts may be ratified by express
words or by deeds. On the other hand, spousals contracted
between infancy and the "ripe" years of twelve or fourteen are
voidable by either spouse when that age is reached. To express
dissent divorce proceedings are not necessary, although a divorce
may be desirable to prevent future question. Either party may
cancel the contract by simply marrying another person; just as a
child-marriage may be ratified by words of consent or by simply
living together as husband and wife: compare FURNIVALL,
_op. cit._, xix-xxv; and _The Lawes Resolutions of Womens
Rights_, 7, 52, 57.
CHAPTER X
RISE OF CIVIL MARRIAGE
[BIBLIOGRAPHICAL NOTE X.--The beginning of the Puritan
conception of marriage as a civil contract is best seen in
Whitgift's "Defence of the Answer," _Works_ (Parker Society,
Cambridge, 1851-53), comprising Cartwright's _Reply to the
Answer_, as well as extracts from the _Answer_ itself, and
from the original _Admonition_ of 1572 which gave rise to the
whole controversy. The views of the Independents, when fully
developed, find their fullest expression in the writings of
Milton on marriage and divorce, constituting, besides scattered
allusions, Vol. III of his _Prose Works_ (Bohn ed., London,
1888); the _Likeliest Means to remove Hirelings out of the
Church_, and the version of Bucer's _De regno Christi_, entitled
_The Judgment of Martin Bucer_, being of special interest in
this connection. For the early period some useful material is
afforded by Prothero's _Statutes and Constitutional Documents_
(Oxford, 1894); Brereton's _Travels in Holland_, 1634-35:
"Chetham Society Publications," Vol. I; Hallam's _Constitutional
History_ (New York, 1880); and Ranke's _England in the
Seventeenth Century_ (Oxford, 1875).
The act of 1653 is contained in Scobell's _Collection of
Acts and Ordinances, 1640-1656_ (London, 1658); and in the
contemporary newspaper entitled _Several Proceedings of
Parliament_, No. 6; but, like all the acts of the revolutionary
period, it is omitted in every edition of the _Statutes at
Large_. Original material for a study of the administration
of this law may be found in the parish registers covering
the interregnum edited by Bulwer, _Parish Registers of St.
Martin-cum-Gregory in the City of York_, Part IV (York, 1895);
Cowper, _The Booke of Register of the Parish of St. Peter in
Canterbury_ (Canterbury, 1888); _Parish Registers of Ellough,
Suffolk_ (privately printed, 1886); Hoveden, _The Register
Booke ... of the Cathedral and Metropoliticall Church ... of
Canterburie_ (Harleian Society, London, 1878); Margerison,
_The Registers of the Parish Church of Calverley, in the West
Riding of ... York_ (Bradford, 1880-87); Moore, _Registers
of Broad Chalke, County Wilts_ (London, 1880); Phillimore,
_Gloustershire Parish Registers_ (London, 1896); Radcliffe,
_The Parish Registers of St. Chad, Saddlworth in County of
York_ (Uppermill, 1887); Sanders, _The Parish Registers
of Eastham, Cheshire_ (London, 1891); _idem_, _The Parish
Registers of Bebington, County Chester_ (Liverpool, 1897);
Stavert, _The Parish Registers of Burnsall-in-Craven_ (Skipton,
1893); and Turner, _The Non-Conformist Register_ (Brighouse,
1881). There is an interesting table in Graunt's _Natural
and Political Observations_ (Oxford, 1665); and examples of
marriage certificates and other records under the act of 1653
may be found in _The Register Booke of Inglebye iuxta Grenhow_
(Canterbury, 1889); Burn's _Parish Registers_; Friedberg's
_Eheschliessung_; _Notes and Queries_ (London, 1850 ff.);
and the _Gentleman's Magazine_ (London, 1731 ff.). The two
periodicals just mentioned, like the _Monthly Review_ (London,
1749 ff.), contain a great deal of matter--curious antiquities
as well as serious discussion--relative to Fleet marriages, the
Hardwicke act, and other phases of the subject. Inderwick's
_Interregnum_ (London, 1891) has an instructive discussion
of some questions connected with the marriage act; and like
Jenk's _Constitutional Experiments_ (Cambridge, 1890) it is
valuable for appreciating the legislation of the Commonwealth.
Lathbury's _History of the Book of Common Prayer_ (Oxford and
London, 1859) describes the operation of the act; and some cases
noted in Jeaffreson's _Middlesex County Records_ (London, n.
d.) prove the need of the safeguard against abduction or fraud
afforded by the act; and there are a number of useful documents
in the _Reports of the Historical Manuscripts Commission_.
Illustrations of the ridicule called out by banns in the
market-place and the justices' celebration may be found in
Butler's _Hudibras_ (Boston, 1864), and Flecknoe's _Diarium_
(London, 1656).
On the Fleet and Mayfair celebrations Burn's now very scarce
_Fleet Marriages_ (2d ed., London, 1834) is the chief authority.
It is supplemented by his _Parish Registers_; and these books
as well as the original sources have been used for Friedberg's
excellent account in the _Eheschliessung_, which on this topic
and the whole ground covered by the present chapter is a
trustworthy guide. A famous contemporary book is Brady's _Some
Considerations upon Clandestine Marriages_ (2d ed., London,
1750). There is an article by Ewald, "Fleet Marriages," in his
_Paper and Parchment_ (London, 1890); and Waters's excellent
_Parish Registers_ (new ed., London, 1883) is more reliable than
the similar work of Burn. Fleet marriages are also discussed,
with interesting extracts from the contemporary newspapers,
by Tegg, _The Knot Tied_ (London, 1877); Ashton, _The Fleet_
(London, 1889); and Jeaffreson, _Brides and Bridals_ (London,
1872), whose book, like Brand's _Observations on the Popular
Antiquities of Great Britain_ (London, 1873-77), contains a mass
of information relating to every phase of marriage customs.
On these marriages and on the Hardwicke act see also Horace
Walpole's _Letters_ (London, 1880); and Lecky, _History of
England in the 18th Century_ (New York, 1879).
Many illustrations of matrimonial usage and folklore may be
found in Howlett, "Marriage Customs," in Andrews's _Curious
Church Customs_ (London, 1895); Edgar, "Marriage in Olden
Times," in his _Old Church Life in Scotland_ (London,
1886); Vaux, "Marriage Customs," in his _Church Folklore_
(London, 1894); Ashton, _Social Life in the Reign of Queen
Anne_ (London, 1882); and Hutchinson, _Chronicles of Gretna
Green_ (London, 1844). In England as well as in Germany the
question of polygamy was much debated. A version of Ochino was
brought out by Garfeild, _A Dialogue of Polygamy_ (London,
1657). This was followed by the anonymous _Concubinage and
Polygamy Disproved_ (London, 1698); Turner, _Discourse on
Fornication with an Appendix on Concubinage_ (London, 1698);
Delany, _Reflections upon Polygamy_ (London, 1737), opposing
the practice; Hamilton, _A Treatise on Polygamy proving it to
be the Will of God_ (Dublin, 1786); especially the notorious
work of Madan, _Thelyphthora; or a Treatise on Female Ruin_ (2d
ed., London, 1781); answered by Towers, _Polygamy Unscriptural;
or two Dialogues between Philalethes and Monogamus_ (London,
1780); by Hill, _The Blessings of Polygamy_ (London, 1781); and
more elaborately by Cookson, _Thoughts on Polygamy_ (Winchester,
1782). See also Dwight, _The Hebrew Wife_ (Glasgow, 1837); and
Colenzo, _A Letter to the Archbishop of Canterbury_ (Cambridge,
1862).
The development of contemporary sentiment and opinion may be
traced in _The Lawes Resolutions of Womens Rights_ (London,
1632); Courtin, _A Treatise of Jealousie_ (London, 1684);
Salmon, _A Critical Essay Concerning Marriage_ (London, 1724);
De Foe, _Religious Courtship_ (London, 1729); Astell's sensible
and liberal _Reflections upon Marriage_ (4th ed., London,
1730); the critical and vigorous _Hardships of the English Laws
in Relation to Wives_ (London, 1735); Dove, _Dissertations
on Marriage, Celibacy_, etc. (1769); Giles, _A Treatise on
Marriage_ (London, 1771); the anonymous _Considerations on
the Causes of the present Stagnation of Matrimony_ (London,
1772), alleging the unreasonable authority of parents; _The
Laws respecting Women, as they regard their Natural Rights_
(London, 1777); Wollstonecraft, _A Vindication of the Rights of
Men_ (London, 1790); her more celebrated _A Vindication of the
Rights of Woman_ (London, 1792); Jay, _Essay on Marriage, or the
duty of Christians to marry Religiously_ (2d ed., Bath, 1807);
_Observations on the Marriage Laws_ (London, 1815); Thompson,
_Marriage: Two Sermons_ (London, 1837); and Wardell-Yerburgh
(ed.), _Marriage Addresses and Marriage Hymns_ (London and New
York, 1900). For the socialistic marriage doctrines of Robert
Owen and others see Bibliographical Note XVIII.
For the debates on the act of 1753 see Cobbett, _Parliamentary
History_, XV; the lively comments of Horace Walpole in his
_Letters_; and the same writer's account of the proceedings in
his _Memoirs of the Reign of George the Second_ (2d ed., London,
1847). The act is harshly criticised by Madan; and among the
writings which it called forth are _Considerations on the Bill
for preventing Clandestine Marriages_ (London, 1753); Fry,
_Considerations on the Act to prevent Clandestine Marriages_
(London, 1754); Merrick, _Marriage a Divine Institution_
(London, 1754), approving the conservative views of Stebbing,
_An Enquiry into the Force and Operation of the Annulling
Clauses_ (London, 1754); _idem_, _A Dissertation on the Power
of States to deny Civil Protection to the Marriage of Minors_
(London, 1755); both papers being criticised by Sayer, _A
Vindication of the Power of Society to Annull the Marriage of
Minors_ (London, 1755). The acts of 1753 and 1836 are noticed
also by Mahon, _History of England_ (New York, 1849); Knight,
_History of England_ (New York, 1880); Lecky, _Democracy and
Liberty_ (New York, 1896); and Spencer Walpole, _History of
England_ (London, 1890).
On the existing law as developed since 1753, especially the acts
of 1836, the _Parliamentary History_ and the _Parliamentary
Debates_ are of course necessary; and for this topic, as
well as for the entire chapter, the _Statutes at Large_ are
in constant requisition. There are contemporary notices of
the acts of 1823 and 1836 in the _Annual Register_, LXV and
LXXVIII; while the sources have been carefully examined by
Oppenheim in his valuable monograph, "Ueber die Einführung der
Civil-Ehe in England," in _ZKR._, I (Berlin, 1861). The temper
and arguments with which the efforts to secure justice were
opposed are disclosed in _A Letter to the ... Earl of Liverpool_
(London, 1827) by a "Presbyter of the Church of England;" Le
Geyt, _Observations on the Bill now before Parliament_ (London,
1827); and Griffin-Stonestreet, _Nuptiæ Sacræ: Objections
to the Amended Unitarian Marriage Bill_ (London, 1828). See
further Phillimore, _Substance of the Speech ... on moving ...
to amend the Marriage Act_ (2d ed., London, 1822); and Lawton's
edition of _The Marriage Act, 4 Geo. IV., c. 76_ (London, 1823);
Beard, _Notes on Lord John Russell's Marriage Bill_ (London,
1834); and in particular the "Report of the Royal Commission
on the Laws of Marriage," in _British Documents_, 1867-68,
XXXII (London, 1868). Of service also are Cooke, _A Report of
the Case of Horner against Liddiard_, Consistorial Court of
London, 1799 (London, 1800); Poynter, _Doctrine and Practice of
the Ecclesiastical Courts in Doctors Commons_ (London, 1822);
Robertson, _The Law of Legitimation by Subsequent Marriage_
(London, 1829); Moodie, _Principles, Changes, and Improvements
in the Law of Marriage_ (London, 1849); Wilks, _Present Law of
Banns a Railroad to Marriage_ (London, 1864), with which may be
compared Ewen, _Proclamation of Banns in Scotland_ (Edinburgh,
1877).
The best short technical treatises on the English marriage
laws as a whole are Hammick's _The Marriage Law_ (London,
1887); Geary's _Marriage and Family Relations_ (London, 1892);
Ernst's _Treatise on Marriage and Divorce_ (London, 1879); and
the concise discussions in Brett's excellent _Commentaries
on the Laws of England_ (London, 1891). Of some service also
is Tegg's popular book, _The Knot Tied_, already mentioned;
and the compact manual of Moore, _How to Be Married_ (London,
1890), is convenient for ready reference. Useful likewise in
this study are the works of Blackstone, Toulmin Smith, Bishop,
Evans, Fischel, Burn (_Ecclesiastical Laws_), Bohn (_Political
Cyclopædia_), all of which have been mentioned in preceding
Notes; as well as Campbell, _Chancellors_ (4th ed., London,
1856-57); Howell, _State Trials_ (London, 1809-28); Molesworth,
_History of England_ (London, 1877); May, _Constitutional
History_ (New York, 1880); Taswell-Langmead, _Constitutional
History_ (London, 1880); Green, _English People_ (New York,
1880); and the valuable article on "Marriage" by Robertson in
the _Encyclopædia Britannica_, XV.]
I. CROMWELL'S CIVIL MARRIAGE ACT, 1653
It was not until the middle of the seventeenth century that the
ideas of the early German[1280] Reformation relating to the temporal
nature of marriage gained ascendancy in England, and then only for
the brief period of the Commonwealth. Yet the civil-marriage act
of 1653 is of extraordinary historical interest, not only as an
example of the statesmanship of Cromwell, so often anticipating the
reforms of our own age, but especially as being mainly the result of
the revolt of the Puritans, more particularly of the Independents,
against the unnatural union of church and state produced by the
compromise of the sixteenth century, and of their intense hatred
of the formalism and ceremonial of the "Romanizing" party in the
established church. The act is of special significance for our
present purpose, since it reveals the conceptions which shaped the
matrimonial laws of New England. Paradoxical as it may at first
glance appear, it cannot be doubted that the first establishment
of obligatory civil marriage in England owes its origin chiefly to
the desire of an intensely religious party to separate all things
worldly from the functions of the clergy and the church.[1281]
True, a foreign people, closely related by blood and speech, with
whom England had long had intimate relations and to whom the
Puritans were drawn through sympathy with their heroic resistance
to ecclesiastical oppression, had already provided a model, which
may have had a certain influence. For in the Netherlands, on April
1, 1580, after the independence from Spain had been declared,
the provinces of Holland and West Friesland had established a
civil-marriage form, permissively even for the members of the
Reformed church; and in principle this was adopted by the States
General for the United Provinces in 1656, three years after the
appearance of the English statute under consideration.[1282]
[1280] FRIEDBERG, _Eheschliessung_, 324; WEBER,
_Geschichte d. akathol. Kirchen und Secten von Grossbrittanien_
(Leipzig, 1845), I, 1, 106 ff.; RICHTER, _Geschichte der
deutschen Kirchenverfass._ (Leipzig, 1851), 175 ff.
[1281] _Cf._ FRIEDBERG, _Geschichte der Civilehe_, 12;
_idem_, _Eheschliessung_, 322-25; RANKE, _Hist. Eng. in
17th Century_, III, 89; BLACKSTONE, _Commentaries_, I,
440.
[1282] By this act the civil-marriage form was permitted, but
not made obligatory. Members of the established church might
solemnize their marriages before their own clergy; but the
Lutherans and Catholics were not allowed a similar liberty;
they must put up with the lay ceremony or accept the offices
of a Reformed minister. This law remained in force until 1795,
when, under the Batavian Republic, obligatory civil marriage was
instituted, which is still in force in the kingdom of Holland
by the statutes of 1833: see FRIEDBERG, _Geschichte
der Civilehe_, 10-12; and his more elaborate treatment of civil
marriage in Holland, _Eheschliessung_, 478-99.
Familiar as many Englishmen probably were with Dutch
institutions,[1283] and close as had been the relations of
Dutch and English Puritans,[1284] so important an event as the
introduction of civil marriage can hardly be due primarily to
imitation. Though Holland may have provided a model, it must be
essentially the product of English religious history. Already in
the reign of Elizabeth there are signs of discontent with the
established ritual and with the quasi-sacramental character of
marriage as conceived by the Anglican clergy. Especially obnoxious
to the Protestant non-conformists, as appears from the well-known
controversy between Whitgift and Thomas Cartwright, leader of
the English Presbyterian party, are the use of the ring, the
"worshipping" of the bride by the bridegroom, requiring the newly
married pair to partake of the communion, and certain customs
popularly connected with the wedding celebration, but not enjoined
by the liturgy. "As for matrimony," runs a passage in the celebrated
_Admonition to the Parliament_, published in 1572, "that also hath
corruptions, too many. It was wont to be counted a sacrament; and
therefore they use yet a sacramental sign, to which they attribute
the virtue of wedlock, I mean the wedding-ring, which they foully
abuse and dally withal, in taking it up and laying it down: in
putting it on they abuse the name of the Trinity, they make the
new-married man, according to the popish form, to make an idol of
his wife, saying 'with this ring I thee wed, with my body I thee
worship,' etc. And because in popery no holy action may be done
without a mass, they enjoin the married persons to receive the
communion (as they do their bishops and priests when they are made),
etc. Other petty things out of the book we speak not of, as that
women, contrary to the rule of the apostle, come, and are suffered
to come, bareheaded, with bagpipes and fiddlers before them, to
disturb the congregation, and that they must come in at the great
door of the church, else all is marred [with divers other heathenish
toys in sundry countries, as carrying of wheat-sheaves on their
heads, and casting of corn, with a number of such like, whereby
they make rather a May-game of marriage than a holy institution of
God]."[1285]
[1283] SIR WILLIAM BRERETON, who visited the Netherlands
in 1634-35, gives an interesting notice of the religious wedding
service. "Marriage," he notes, "likewise solemnized by the
English and Dutch reformed churches, without the use of the ring
or any ceremony, only an admonition precedes, directing how
these married persons should demean themselves each to other,
and for that end those Scriptures read hereunto most pertinent;
as also a large discourse precedes, touching the institution of
this sacred ordinance, and those texts hereunto pertinent also
read." He mentions the marriage of a couple "who used the ring,
and it was as long in solemnizing as our marriages, but I saw no
other ceremony used but the ring and joining hands; after this
concluded, all the bride's kindred, friends and acquaintances
that are present, or meet with her, kiss her, even in the Church,
when groom leaves her, and her own friends bring her near his
house, when he meets, salutes her, and receives her. Among the
Lutherans I observed that they bowed always at the name of Jesus,
so often as it was used in the solemnity of their marriage,
which was very often."--"Travels in Holland, etc., 1634-5,"
_Chetham Society Publications_, I, 63, 64. It is noticeable
that Sir William says nothing of the civil-marriage ceremony,
permitted in some provinces at this time. Between 1580 and 1656,
in many cities, the Lutherans had gained the right to solemnize
marriage according to their own rites: FRIEDBERG,
_Eheschliessung_, 484.
[1284] See CAMPBELL, _The Puritan in Holland, England,
and America_, I, 485 ff.
[1285] _Admonition_, the Ninth: WHITGIFT, "Defence of
the Answer," _Works_, III, 335.
In his _Answer to the Admonition_ Whitgift denies that the ring is
looked upon as a "sacramental sign," and admits that "it is not
material" whether it "be used or not;" while he quotes with approval
Bucer's opinion[1286] that the "ceremony is very profitable, if the
people be made to understand what is thereby signified, as that
the ring and other things, first laid upon the book, and afterward
by the minister given to the bridegroom to be delivered to the
bride, do signify that we ought to offer all that we have to God
before we use them, and to acknowledge that we receive them at his
hand to be used to his glory. The putting of the ring upon the
fourth finger of the woman's left hand, to which, as it is said
there cometh a sinew or string from the heart, doth signify that
the heart of the wife ought to be united to her husband; and the
roundness of the ring doth signify that the wife ought to be joined
to her husband with a perpetual band of love, as the ring itself
is without end." Cartwright in his _Reply_ declares that "if it be
M. Bucer's judgment which is alleged here for the ring, I see that
sometimes Homer sleepeth. For, first of all, I have shewed that it
is not lawful to institute new signs and sacraments. And, then, it
is dangerous to do it, especially in this which confirmeth the false
and popish opinion of a sacrament." Next he ridicules Bucer for his
"fond allegories" touching the ring, and thinks that having "the
minister to preach upon these toys" savoureth not of his learning
and sharpness of judgment.[1287] Whitgift, however, further defends
the practice on the score of "convenience" and because it is "void
of all manner of superstition."[1288] Moreover, he sustains the
requirement of communion, again quoting Bucer in its favor; accuses
Cartwright of weak argument and of trying to make "schism in the
church" by bringing forward popular customs, "mere trifles" not
sanctioned by the "book" which is the real object of his attack;
and rightly points out that "worship" implies not idolatry, since
it signifies merely to "honor" and not to "adore" according to the
more modern devotional sense.[1289] Indeed, it is historically
instructive that already in the sixteenth century the original
meaning of "worship" should have passed out of common use.
[1286] BUCER, _Script. anglic. basil., 1577, Censur. in
ordinat. eccles._, c. xx, 488, 489: WHITGIFT, _Works_,
III, 353, 354, note. Bucer is the great Protestant authority
on the question of marriage and divorce. Milton calls him the
"pastor of nations" (_Works_, III, 285), and congratulates
himself on having independently reached similar conclusions
(_ibid._, 282 ff.). See especially MILTON'S "Judgment
of Martin Bucer concerning Divorce" (_ibid._, 274-314), being a
partial translation of the second book of BUCER'S _De
regno Christi_, addressed to Edward VI.
[1287] CARTWRIGHT'S _Reply to the Answer_, in
WHITGIFT, _Works_, III, 354.
[1288] Thus in his "Defence of the Answer" (_Works_, III, 355)
WHITGIFT apologizes for the use of the ring, seeing the
"church hath thought it convenient," and since it is likewise
"void of all manner of superstition, necessity of salvation,
opinion of worshipping, and all other circumstances, that should
take away the lawfulness of using it."
[1289] WHITGIFT, _op. cit._, III, 355-57.
But the attack of the sixteenth-century reformers was not directed
solely against the ceremonies and phrases of the marriage ritual. A
bold step was taken toward civil marriage when resistance was made
to ecclesiastical jurisdiction in matrimonial causes on the ground
that these belong to the temporal judge. On this subject Cartwright
has a characteristic passage, disclosing his usual ignorance of
history and his confusion of mind--of which Whitgift does not fail
to take advantage--but nevertheless revealing plainly enough the
new ideas which more and more came to the front during the Puritan
revolution. "Another thing," he says, "is that in these courts
(which they call spiritual) they take the knowledge of matters which
are mere civil, thereby not only perverting the order which God hath
appointed in severing the civil causes from the ecclesiastical, but
justling also with the civil magistrate, and thrusting him from
the jurisdiction which appertaineth unto him, as the causes of the
contracts of marriage, of divorce, of wills and testaments, with
divers other such like things. For, although it appertain to the
church and the gouvernors thereof to shew out of the word of God
which is a lawful contract or just cause of divorce, and so forth,
yet the judicial determination and definitive sentences of all these
do appertain unto the civil magistrate. Hereunto may be added, that
all their punishments almost are penalties of money, which can by no
means appertain to the church, but is a thing merely civil."[1290]
[1290] CARTWRIGHT'S _Reply to the Answer_, p. 150, sec.
3, in WHITGIFT, _Works_, III, 267.
So far as England is concerned, to assign the unfortunate "severing
the civil causes from the ecclesiastical" under William the
Conqueror to the "order which God hath appointed" may seem to the
historical student a trifle bold; and Whitgift may well retort, if
"'it pertain to the church to declare what is a lawful contract,
and which be the just causes of divorce,' by what reason can you
prove 'that the judicial determination and definitive sentence of
those matters doth pertain to the civil magistrate only'? For is
not he most meet to judge in these causes which best understandeth
them?" But Whitgift himself undoubtedly begs the question when he
advances the counter-statement that the civil magistrate already
has authority in ecclesiastical cases, since "all jurisdiction
that any court in England hath or doth exercise, be it civil or
ecclesiastical," is "executed in her majesty's name and right,"
and comes "from her as supreme governor," so that in effect "we"
make no "such distinction betwixt civil and ecclesiastical causes
as the pope and you do;"[1291] for this very blending of church
and state under the "defender of the faith" is really the root of
the whole matter in controversy. Yet Cartwright represents a good
cause, however lame his defense of it may be. Again returning to
the charge, in effect he attacks the notorious character[1292]
of the spiritual courts themselves, referring to the "unfitness
of those which are chief officers" in them; for "the most" of
these officials, he affirms, "are either papists, or bribers, or
drunkards (I know what I write), or epicures, and such as live of
benefices and prebends in England and in Ireland, doing nothing of
those things which appertain unto them."[1293] Dilatory action in
matrimonial causes was a standing grievance against the spiritual
courts; and many "lamentable complaints and petitions" for redress,
especially in cases where "summary hearing and speedy relief" are
necessary, were addressed to the privy council. For this reason, in
1613, complaints from wives alleging desertion, cruel treatment, or
"breach of the bonds of holy wedlock" on the part of their husbands
were relegated to the High Commission for settlement.[1294]
[1291] WHITGIFT, "Defence of the Answer," _Works_, III,
267.
[1292] The Reformers charged that the throng of greedy
place-hunters, attracted by fees and emoluments, corrupted the
courts as well as the entire ecclesiastical administration of
the bishops: see particularly MILTON'S "Likeliest Means
to remove Hirelings out of the Church," _Works_, III, 1-41: Sir
Henry Spelman, he says, "proves that fees exacted or demanded for
sacraments, marriages, burials, and especially for interring, are
wicked, accursed, simoniacal, and abominable" (_loc. cit._, 21).
"Nor did other abuses imputed to these obnoxious jurisdictions
fail to provoke censure, such as the unreasonable fees of their
officers, and the usage of granting licenses and commuting
penances for money. The ecclesiastical courts indeed have
generally been reckoned more dilatory, vexatious, and expensive
than those of the common law."--HALLAM, _Const. Hist._,
I, 115; _cf._ 454.
"At Durham, at Lancaster, and at Ely, the Bishops sitting
each as a Pope in his own dominions professed to exercise
temporal as well as spiritual power, but they had in fact
permitted gross abuses to corrupt and obstruct the fountain of
justice."--INDERWICK, _The Interregnum_, 184.
[1293] CARTWRIGHT'S _Reply to the Answer_, p. 151, sec.
1, in WHITGIFT, _Works_, III, 268. WHITGIFT
(_ibid._, 269) rebukes Cartwright for his "slanderous and
opprobrious speeches." _Cf._ the further discussion of the
question of spiritual jurisdiction in matrimonial causes in
WHITGIFT, _loc. cit._, 543-46, where Cartwright quotes
Beza, Calvin, and Peter Martyr in his favor.
In convocation, 1580, proposals were made to reform the
ecclesiastical courts, but nothing was done. Again in 1594 a
commission to inquire into abuses was appointed: HALLAM,
_Const. Hist._, I, 215 n. 1; STRYPE'S _Grindal_, 259,
App., 97; and STRYPE'S _Whitgift_, 419.
[1294] See secs. xx-xxii of the commission of James I. to the
High Commission, in PROTHERO'S _Statutes and Const.
Docs._, 431-33. The signers of the "Millenary Petition," 1603,
likewise pray for the restraint of the "longsomeness of suits in
ecclesiastical courts (which hang sometimes two, three, four,
five, six, or seven years)": PROTHERO, _op. cit._, 415.
But adding to the powers of the "Ecclesiastical Star Chamber"
would scarcely be regarded by the Puritans as even a satisfactory
palliation for such a grievance. The policy of the Stuarts tended
swiftly to mold their opinions into organized resistance; and the
marriage question became at last one of the cardinal issues in
the reform program. Thus in the "Millenary Petition" of 1603 the
Puritan ministers, while objecting to the "cross in baptism," the
"cap and surplice," profanation of the Lord's day, "double-beneficed
men," "popish opinions," and "longsomeness of service," pray also
for the reversal of "divers popish canons," such "as the restraint
of marriage at certain times;" for greater caution in granting
"licenses for marriage without banns;" and for the correction of
"divers terms of priests and absolution and some other used, with
the ring in marriage, and other such like in the book."[1295] On
the other hand, if the Puritan loathed the so-called "popish"
tendencies of the established church, as these became more and more
pronounced under the rule of Laud, both the Puritan and the Anglican
united in merciless persecution of the adherents of Rome. The act
of 1606, "to prevent and avoid dangers which may grow by Popish
recusants," is one of the most barbarous of those which for ages
disgraced the English statute book. By this law a "popish recusant
convict," or a man whose wife alone is convicted of recusancy, is
forbidden to "exercise any public office in the commonwealth,"
except "such husband himself and his children ... above the age of
nine years abiding with him and his servants in household shall
once every month at the least, not having any reasonable excuse to
the contrary, repair to some church or chapel" of the establishment
and "there hear divine service;" and unless, with his children and
servants of meet age, he receives the sacrament of the Lord's
Supper when required by law, and "bring up his children in the true
religion." Every married woman convicted of recusancy, her husband
not being so convicted, who shall not "conform herself ... by the
space of one whole year next before the death of her said husband,
shall forfeit to the King's Majesty ... the issues and profits of
two parts of her jointure and two parts of her dower, ... and also
be disabled to be executrix or administratrix" of her husband, "and
to have ... any part of his goods and chattels." Any child[1296]
sent abroad without the king's license, to prevent his "good
education in England or for any other cause," may have "no benefit
by any gift, conveyance, descent, devise or otherwise of any lands
... goods or chattels," until he reach the age of eighteen or more,
when, as a condition of recovering his property, he must take an
iron-clad oath of allegiance[1297] and partake of the sacrament.
In the meantime--and here a broad way was opened up for fraud and
wickedness--all the rights mentioned are to pass to the "next of kin
which shall be no Popish recusant." Moreover, this infamous statute
imposes harsh penalties upon every recusant who shall hereafter be
"married otherwise than according to the orders of the Church of
England by a minister lawfully authorized." The man is "utterly
disabled to have any estate of freehold in any the lands ... of
his wife as a tenant by curtesy of England," or in case she have
no lands he must forfeit a hundred pounds. The woman is not only
disabled from claiming her dower or jointure, but is also denied her
"widow's estate and frank-bank in any customary lands whereof her
husband died seized," as well as any part of her husband's goods
"by virtue of any custom." Should a child be born to them, it must
within a month be baptized in open church according to Anglican
rites, under penalty of one hundred pounds for refusal.[1298] In
all other essential features during the first two Stuart reigns the
law of espousals and marriage remained the same as during the age
of Elizabeth.[1299] After Laud gained control there was a strong
tendency to accent those parts of the nuptial ceremonial which gave
offense to the Puritans.[1300] The civil war brought all this to an
end; and "on January 3, 1644-5, a few days before the execution of
Archbishop Laud, the Directory was by a solemn ordinance substituted
for the Book of Common Prayer." But the form prescribed in the
latter remained valid, "although the celebrant was liable to a fine
of £5 for not using the form inserted in the Directory of Public
Worship. Still many people clung to the ancient service, and amongst
others Stephen Marshall the Preacher, who had a chief hand in
compiling the Directory, deliberately made use of the Prayer Book in
marrying his own daughter, when he paid down to the churchwardens
the legal fine which he had incurred."[1301]
[1295] _Ibid._, 414, 415.
[1296] Unless the child be a soldier, mariner, merchant, or a
merchant's apprentice or factor.
[1297] Prescribed by 3 and 4 James I.: PROTHERO, _op.
cit._, 259; _Statutes at Large_, II, 653.
[1298] 3 and 4 James I., c. v: PROTHERO, _op. cit._,
262-68; _Statutes at Large_, II, 656-62.
[1299] For a concise and accurate account of the law of marriage
as it stood under Charles I. see _The Lawes Resolutions of Womens
Rights_ (London, 1632), 51-115, 231 ff. Marriages on account of
_disparitas cultus_ were prohibited. "Amongst the hinderances of
marriage note this also, that by Constitution of holy Church,
marriage is forbidden betwixt persons of divers Religions, as
Jews and Christian" (59). It does not appear, however, that such
unions were invalid; nor is anything said of "mixed" marriages.
There was no action, as in Germany, to compel the fulfilment of
the _sponsalia_ (54).
[1300] CARDWELL, _Documentary Annals_, II, 200-207,
gives Bishop Wren's "Orders and Directions" for the diocese of
Norwich, 1636:
"XI. That they go up to the holy table at marriages at such time
thereof as the rubric so directeth, and that the new married
persons do kneel without the rail, and do at their own charge, if
the communion were not warned the Sunday before, receive the holy
communion that day, or else to be presented by the minister and
churchwardens at the next generals for not receiving.
"XII. That no minister presume to marry any persons, whereof
one of the parties is not of his parish, unless it be otherwise
expressly mentioned in the license; nor that he marry any by
virtue of any faculties or license, wherein the authority of an
archdeacon or official is mentioned, _sub poena suspensionis_."
[1301] WATERS, _Parish Registers in England_, 11, 16.
_Cf._ LATHBURY, _Hist. of the Book of Common Prayer_,
310, and the authorities there cited. JEAFFRESON,
_Brides and Bridals_, II, 69, gives the form of marriage contract
prescribed by the Directory.
With the triumph of Cromwell the hour had come for realization
of the new ideals. The act of 1653, though marking the end of a
century of religious controversy in which not a little of bigotry
and fanaticism on both sides is mingled, and though passed by
the much-abused "Barebone's Parliament,"[1302] is nevertheless a
measure wise and clear, resting on principles which two centuries
and a half of subsequent history have fully sanctioned. For, like
so much of the legislation and experimentation of the period, it is
anticipatory of the best reforms of the present age. With remarkable
clearness and brevity, but with adequate fulness of detail, the form
of celebration, the exercise of matrimonial jurisdiction, and the
machinery of administration are provided for.[1303]
[1302] For a fair estimate of the character of the "Barebone's
Parliament," see INDERWICK, _The Interregnum_, 15-17;
JENKS, _Const. Experiments_, 69-75.
[1303] This marriage act of August 24, 1653, is contained in
SCOBELL'S _Acts and Ordinances of Parliament_, 236-38,
though, to the disgust of the historical student, not in any
of the various editions of the _Statutes_. I have here used a
copy of the act contained in a contemporary newspaper entitled
_Several Proceedings of Parliament, from Tuesday the twenty-third
of August, to Tuesday the thirtieth of August, 1653_, found
in the fine collection of seventeenth-century pamphlets in
the Sutro Library, San Francisco. An inaccurate copy of the
principal provisions of the act is given by BURN,
_Parish Registers_, 26-29; and there is a good summary in
FRIEDBERG, _Eheschliessung_, 322, 323. On this act and
the views of the Independents see COOK, "The Marriage
Celebration in Europe," _Atlantic Monthly_, LXI, 255-57.
An obligatory civil ceremony before a justice of the peace
is prescribed. After due publication of banns, with a proper
certificate thereof obtained from the parish register, the persons
to be married are to come before "some justice of peace within and
of the same county, city, or town corporate" where publication was
made. If either of them is under the age of twenty-one, "sufficient
proof of the consent of their parents or guardians" must be
presented. The magistrate is required to "examine by witness upon
oath, or otherwise ... concerning the truth of the certificate,
and due performance of all the premises;" and he is also to take
cognizance of any "exceptions" to the marriage "made or arising." If
"no reasonable cause to the contrary" appear, "the marriage shall
proceed in this manner: The man to be married, taking the woman to
be married by the hand, shall plainly and distinctly pronounce these
words:
'I A. B. do here in the presence of God the Searcher of all Hearts,
take thee C. D. for my wedded wife; and do also in the presence of
God, and before these witnesses, promise to be unto thee a Loving
and Faithful Husband.'" The woman in like manner taking the man by
the hand accepts him for her husband, promising to be his "Loving,
Faithful, and Obedient Wife."
The ceremony thus consists merely in the expression of mutual
consent, accompanied by the interlocking of hands, the old
handfasting; but the use of the ring is not permitted.[1304] All
legal requirements being satisfied, the justice pronounces the
parties husband and wife; and their simple declaration, as above
given, is to be taken "as to the form of marriage" to be "good
and effective in law; and no other marriage whatsoever within the
Commonwealth," after September 29, 1653, "shall be held or accompted
a marriage according to the Laws of England."[1305] But this
restriction was omitted when the act was confirmed in 1656.[1306]
[1304] Hence the ridicule of BUTLER, _Hudibras_, Part
III, c. 2, 303-10 (Boston, 1864), II, 18:
"Others were for abolishing
That tool of matrimony, a ring,
With which th' unsanctify'd bridegroom
Is marry'd only to a thumb
(As wise as ringing of a pig,
That us'd to break up ground and dig),
The bride to nothing but her will,
That nulls the after-marriage still."
[1305] _Cf._ FRIEDBERG, _Eheschliessung_, 322, 330.
After the restriction was removed in 1656, marriages were
frequently solemnized before the mayor and the minister of the
parish jointly: BURN, _Parish Registers_, 162, 163,
note; WATERS, _Parish Registers in England_, 16. In
1658, according to the register of St. Giles in the Fields,
a marriage was celebrated by William Jervis, D.D., before
witnesses, and then follows this entry: "That also the sd.
marriage ... hath its consummation before John Lord Berksted,
Lord Lieutenant of the Tower of London" according to the act of
parliament, and before Sir Jno. Sedley of the county of Kent.
Apparently this was a double celebration: _Notes and Queries_,
3d Series, I, 228. For this case see also JEAFFRESON,
_Brides and Bridals_, II, 71, who affirms that usually the
"wedding was religiously solemnized in church, after or
before the performance of the purely civil affirmation in the
magistrate's parlour, ... in accordance with the instructions
of the 'Directory of Public Worship;'" and it seems that the
celebration was sometimes conducted according to the Book of
Common Prayer: LATHBURY, _Hist. of the Book of Common
Prayer_, 310.
[1306] SCOBELL, _Acts and Ordinances_, 1656, c. 10, p.
394. _Cf._ also BURN, _Parish Registers_, 29. In 1658
it was permitted to use the "accustomed religious rites" if the
parties preferred: WOOD, _The Wedding Day_, 279.
In thorough harmony with the doctrine that marriage is a "worldly
thing" is the provision of this act depriving the clergy of
jurisdiction in matrimonial causes and placing it in the hands of
the justices of the peace. It is provided that all "matters and
controversies touching contracts and marriages, and the lawfulness
and unlawfulness thereof; and all exceptions against contracts and
marriages, and the distribution of forfeiture within this act, shall
be in the power, and referred to the determination of the justices
of peace in each county, city, or town corporate, at the general
quarter sessions," or to such "other persons" as the "parliament
shall hereafter appoint." All offenses against the act committed
on or beyond the sea are in like manner to be tried in the places
where the offenders are taken. Jurisdiction in cases of divorce is
not, however, mentioned in this act; nor was any provision made for
the trial of such causes during the Commonwealth. Indeed, a strong
religious prejudice still survived against divorce, even among the
Independents. "Thus," says Mr. Inderwick, "while on the one hand
they treated marriage as a civil contract, on the other they gave
to it all the inviolability of a sacrament, an inconsistency which
is, however, to be found in many other acts of this period. The
Jewish law, to which they much adhered, provided for and regulated
divorces. They were recognized by most Protestant communities, and
Milton, oppressed by his own domestic difficulties, had written
powerfully on the subject, but through all the minutes of the
various parliaments and councils of state I find, what I conceive
to be somewhat surprising, no trace of any proposal to introduce
into England any system of divorce. And, indeed, the prejudice
against divorce appears to have been so strong that the laxity
of the Jews in this respect was found in 1655 to be one of the
strongest arguments against their proposed admission to the rights
of citizenship."[1307] Nor is there any clear provision for the
determination of cases of separation and alimony; although the
consistory and other ecclesiastical courts having been abolished,
these questions in practice were managed by "delegates appointed
by the Commissioners of the Great Seal[1308] or by justices of
the peace in quarter sessions--a course which would seem to have
been the reasonable outcome" of the civil marriage act.[1309] On
similar grounds the county justices probably dealt with "matrimonial
squabbles," though in one case at least the intervention of the
Council of State was sought.[1310]
[1307] INDERWICK, _The Interregnum_, 46.
[1308] The act of 1650, c. 43: SCOBELL, _Acts and
Ordinances_, 150, 151, contains a general provision for such a
commission in cases of pretended marriages.
[1309] INDERWICK, _op. cit._, 183, 184.
[1310] See the case of "John Buck and Mary his wife" in
INDERWICK, _op. cit._, 183. That the justices took a
hand in these cases appears to be a reasonable conjecture.
On the other hand, the act of 1653 grants authority to the justices
in cases of the marriage of minors through fraud or forcible
abduction. According to Inderwick, the attempt to check this abuse
was entirely novel. The Commonwealth, he says, "interfered in a
manner[1311] hitherto unknown for the protection of women from
those forcible abductions and marriages which were but too common
under the former and later reigns of the Stuarts. Fraudulent
marriages, induced by needy men or intriguing women, formed the
common staple of the plays and interludes which the puritans so
heartily condemned. In these comedies, while the unhappy father or
deluded guardian was not infrequently the subject of mirth or of
contempt, the lucky intriguer was made the hero of the play. From
this species of offense, carried from the play-house into private
life,[1312] the middle class peculiarly suffered, and while the
wealthy merchant or the prosperous tradesman had to endure as best
he might the entrapping of his daughter or the abduction of his
ward, the gay cavalier or dashing spark who carried her off was the
lion of the hour. Of this phase of society the puritan party had
long and loudly proclaimed their horror and detestation, and the
Commonwealth was not long installed before an occasion arose which
enabled them to give practical effect to their expressed opinions."
This was the case of the forcible abduction of Jane Pickering, "who
was the only daughter and heiress of Sir Thomas Pickering, knight
and baronet, deceased." While "walking in Greenwich Park with her
maids in October of 1649, she was seized by one Joseph Walsh and his
companions" and transported to Flanders; "after which Walsh asserted
a marriage to have taken place between them and was prepared to
claim his pecuniary rights as her husband." The Council of State
took speedy action. The lady was eventually brought back to England.
Under authority of an act of Parliament,[1313] the case was tried
in 1651 by a special court consisting of delegates appointed by the
Lords Commissioners of the Great Seal; "and it is to be presumed
that she had judgment in her favour, and her marriage set aside;"
for subsequently an "indictment of felony was found against Walsh
and his companions."[1314] Accordingly the marriage act declares
that if anyone by violence or fraud steal or cause to be stolen any
person under the age of twenty-one years, "with intent to marry the
said person," the offender shall forfeit his whole estate, one-half
to the Commonwealth and one-half to the aggrieved, and besides
"suffer strict and close imprisonment, and be kept to hard labor ...
during life." Severe punishment likewise is prescribed for those
aiding or abetting the crime; and any guardian or overseer who
shall abuse his trust "by seducing, selling, or otherwise wilfully"
promoting the marriage of his ward with another without such ward's
free consent "shall forfeit double the portion which of right"
belongs to the child.[1315]
[1311] Something had, however, been done to check this evil
by Tudor legislation. The act of 3 H. VII., c. 2, _Statutes
at Large_ (Ruffhead), II, 69, provides that if anyone take
away against her will any woman, whether maid, widow, or wife,
"having substances, some in Goods moveable, and some in Lands and
Tenements, and some being Heirs apparent unto their ancestors,"
and marry her or cause her to be married or deflowered, or in any
way aid or abet the same, he shall be guilty of felony; and the
act of 39 Elizabeth, c. 9, _Statutes at Large_, II, 689, deprives
such offenders of benefit of clergy. Again by 4 and 5 Philip and
Mary, c. 8, _Statutes at Large_, II, 515, the abduction of a
maid under sixteen is punishable by two years' imprisonment or
a fine to be fixed by the Star Chamber; while the taking away
and marrying or deflowering any woman child under that age is
punishable with five years' imprisonment or a fine as in the
first case. For these and the earlier statutes regarding rape see
_The Lawes Resolutions of Womens Rights_, 376-90.
These acts, it should be noted, are quite restricted in
their range and besides, by 1653, they seem to have become
practically a dead letter; although in 1753 Attorney General
Ryder declares they are still in force: HANSARD,
_Parliamentary History_, XV, 3-5; and so does the act of 1650, c.
43: SCOBELL, _Acts and Ordinances_, 151. On the other
hand, the act of the Commonwealth applies to all minors under
twenty-one, men or women, whether heirs or possessors of property
or not; the penalties were severe; and the fraudulent or forcible
marriage is void.
[1312] The MSS. of the Duke of Northumberland in _Reports of the
Hist. Manuscript Commission_, III, 55, 59, 61, show entry before
the Star Chamber of three such cases: On June 3, 1608, "Atty Gen.
_v._ Thos. Mollineux, Riot and other Misdemeanors in marriage of
daughter of Mr. Brooke against his will." Feb. 5, 1611-12, "Atty
Gen. _v._ Humphry and Margaret Chatterton et al. Conspiring to
deceive Lord Cavendish of his son, Sir William, aged 14, and
King of his Wardship. Supposed contract of marriage between Sir
William Cavendish and Margaret Chatterton, a waiting maid." Jan.
1612-13, "Elizabeth de la Fountaine, widow, _v._ Stephen Harvie
et al. Practicing to steal away and marry plaintiff's daughter,
aged 8."
[1313] The act (1650, c. 43) in SCOBELL'S _Acts and
Ordinances_, 150, 151.
[1314] INDERWICK, _op. cit._, 40-43: citing _State
Papers_, 1649-50; and WHITELOCK, _op. cit._, III, 293,
319.
[1315] For examples of marriages annulled by the quarter sessions
under this act see JEAFFRESON, _Middlesex County
Records_, III, 233, 234, 264; also INDERWICK, _op.
cit._, 43, 45.
The change in matrimonial jurisdiction effected by this measure of
the Commonwealth has a twofold significance. Not only is judicial
authority thus vested in civil rather than spiritual tribunals; but
it is placed in the hands of local judges. It is an illustration
of the democratic or decentralizing tendency which marks the
legislation of the seventeenth-century Puritans on both sides of
the Atlantic. It was, moreover, natural that the county magistrates
should be vested with these new functions. In the exercise of
their general peace authority they had already performed duties
not wholly dissimilar to some of those called for under the act. In
certain instances, before as well as after the reign of Cromwell,
one may be surprised to find the justices exercising a sort of
jurisdiction in cases of alleged breach of promise. "Forasmuch,"
declare the magistrates of Devon in 1626, "as it hath apeared unto
this court that Bridget Howsley of Langton, spinster, liveth idly
and lewdly at home, not betaking herself to any honest course of
life, and hath lately falsely and scandalously accused" a certain
man of Honiton, "challenging a promise of marriage from him, which
tended much to his disgrace, and that she is a continual brawler
and sower of strife and debate between neighbors;" therefore it is
ordered that the said Bridget "be forthwith committed to the House
of Correction there to be set on work and remain for the space of
six whole months," and thereafter until she find good sureties or a
"master that will take her into service."[1316] Here the justices
may have acted merely as peace officers, though it is plain that
as a precedent their sentence is far-reaching in its consequences.
As late as 1835 we find the magistrates at Exeter, following the
principle of the Roman law, "obliging a faithless swain to return a
damsel's watch, and the latter to return half the value of a broach"
which he had given her.[1317]
[1316] ROBERTS, _The Social History of the People of the
Southern Counties of England in past Centuries_ (London, 1856),
204, 205.
[1317] BURN, _Parish Registers_, 140 n. 1. By the code
of Theodosius, already cited (above, p. 295), when the betrothal
was sealed with a kiss, the lover received one-half of the gifts;
but the woman, "whether kissing or not kissing, whatsoever she
gave, she may ask and have it again": _ibid._, 140. Compare _The
Lawes Resolutions of Womens Rights_, 71, 72 (on "Wooing" and the
"Condiments of Love").
In no respect is the essential "modernness" of Cromwell's marriage
act more strikingly shown than in its provisions to secure
publicity, with a safe and perfect record. Nothing so wise and
practical in this regard was again seen in England until the law of
1836. It is provided that in each parish a register of marriages,
births, and deaths shall be elected for three years by the
contributors to the poor rate. The register is to be an "able and
honest person," such "as shall be sworn and approved" by a justice
of the peace, who is to enter the fact of election and qualification
in the register book of the parish;[1318] and he is removable either
by the justice or by the parish with the justice's consent. A "Book
of good Vellum or Parchment" is to be provided by each parish, in
which it is the duty of the register to enter all marriages, births,
and burials of "all sorts of people."[1319]
[1318] The following is a specimen of such entry by a justice,
taken from the parish register of Shudy Camps, in Cambridgeshire
(BURN, _op. cit._, 26):
"Cambsh.--These are to certifie all whom it may concern y^t Jn^o
Wignald Clerke (being elected Register of y^e parish of Shudy
Camps by y^e Inhabit^{ts}. of y^e same Parish as hath appear'd
unto me by a Certificate under y^e hands of y^e Inhabitants
thereof) did come before me Tho. Benett Esq^r. one of y^e
Justices for y^e peace of y^e s^d Countie and did take his oath
for y^e due Execution of his office acc^g to y^e late Act of
Parliam^t in y^t case made and provided. Which s^d John Wignald
I do hereby constitute Register thereof. Accordingly witness my
hand and seal this 10 of Jan. 1653. Tho. Benett."
For similar certificates see STAVERT, _Parish Register
of Burnsall-in-Craven_, 88; COWPER, _The Booke of
Register of the Parish of St. Peter in Canterbury_, 89; and
WATERS, _Parish Registers in England_, 14.
[1319] The fees for registration authorized are for each marriage
12d.; publication and certificate of marriage, 12d.; each birth
or death, 4d.; and no charge in case of persons living by alms.
Careful provision is also made for the publication of banns. All
marriages must be announced either for three successive Sundays in
church, or at the pleasure of the parties, during the same interval,
in the market-place[1320] "next to the said church or chappel."
Before the publication the parties must file with the register a
written statement of their names and places of residence, together
with those of their parents or guardians; and these facts are
then included in the notice. The register also enters the fact of
publication and all objections brought forward against the marriage,
with the names of those objecting. After publication the persons to
be married are to obtain the register's certificate of the fact
and proceed to a justice of the peace. As already seen, they must
also find witnesses, give evidence of the consent of parents or
guardians, and cause to be confirmed by oath, or otherwise in the
discretion of the magistrate, the genuineness of the certificate.
After the ceremony, if desired by the parties, the officiating
justice is required to give them a certificate of the solemnization
properly signed by himself and the witnesses; and this certificate,
if produced, shall be recorded by the clerk of the peace in each
county in a book of parchment provided for the purpose.[1321] The
register of the parish is to "attend the said justice" to "subscribe
the entry of every such marriage."
[1320] The parish register of Boston, Lincolnshire, shows
"that during the years 1656, 1657, and 1658 respectively the
number of marriages proclaimed in the market-place were 102,
104, and 108, and of those announced in the church, 48, 31,
52."--WOOD, _The Wedding Day_, 278, 279.
[1321] The English clerk of the peace keeps the records of the
quarter sessions and in a measure corresponds to the county
clerk in the United States; _cf._ HOWARD, _Local Const.
Hist._, I, 315.
Nor did the system so well planned exist merely upon paper. The
plain men chosen to the office of register did their work well,
though they were sneered at as "mere laymen," and though they
sometimes substitute rather harsh English for the worse Latin of
their clerical predecessors. Greater publicity and more orderly
records were secured during the Commonwealth than existed before
it or after the Restoration. "It has been frequently asserted by
writers on this subject," remarks Burn, a thoroughly competent
judge, "that the registers during the time of Oliver Cromwell, were
very badly kept;" but, on the contrary, "they were unusually well
kept" where "a lay register was appointed according to the act of
parliament." Such deficiencies as exist, he suggests, may result
either from the destruction of the records or from neglect to turn
them over at the Restoration or when the lay registers entered
upon their functions.[1322] Waters agrees with Burn;[1323] and an
examination of the published parish registers entirely confirms this
view.[1324] It is hard, therefore, to understand the following
curious statement by a contemporary writer who is clearly no admirer
of Cromwell.[1325] Referring to certain "bills of mortality" for
Romsey in Hampshire and Tiverton in Devonshire,[1326] he remarks
"that in the years 1648 and 1649, being the time when the people of
_England_ did most resent the horrid Parricide of his late Sacred
Majesty, ... there were but nine weddings ... in the same places,
when there were ordinarily between 30 and 40 _per Annum_; and but
16, when there were ordinarily ... between 50 and 60. And it may
also be observed that something of this black murther appeared in
the years 1643 and 1644 when the Civil war was at the highest,
but the contrary [in the] years 1654, 1655, etc., to prevent the
new way of Marriage then imposed upon the people." Just how the
increase in the number of weddings recorded in the years 1654-58
may be explained as due to a desire "to prevent the new way of
Marriage," we are not informed. It cannot be inferred that people
hurried to get married in anticipation of the new law, for it was
put in force the next month after its passage; nor that through
zeal they married more rapidly according to the Book of Common
Prayer, in defiance of the new civil forms, although in some cases
the religious celebration may have been still employed. But it is
useless to speculate as to the sense of the passage. The statistical
tables for the two parishes submitted by this writer afford very
strong evidence that the apparent increase in the number of weddings
is mainly due to the fact that the records were better kept. It
will be noticed that there is a corresponding rise in the number of
christenings and burials; and this fact can scarcely be accounted
for by assuming that people hastened to get born or to die through
opposition to an ordinance of the Barebone's Parliament. After the
Restoration there is a decided falling off in the registration.
[1322] BURN, _Parish Registers_, 52.
[1323] WATERS, _Parish Registers of England_, 17.
[1324] The registration for the period of the act is very full
in HOVEDEN, _The Register Booke ... of the Cath. and
Met. Church of Christe of Cant._, 58, 59; MARGERISON,
_The Registers of the Parish Church of Calverly_, II, 117-24;
STAVERT, _The Parish Register of Burnsall-in-Craven_,
87-104. In PHILLIMORE'S _Gloustershire Parish
Registers_, I, 9, there are no entries for 1653-54 and for
several years before, while they are relatively full thereafter.
BULWER'S _Parish Registers of St. Martin-cum-Gregory
in the City of York_, II, 78-87, have a full record both
before and after 1660. The same is true of COWPER'S
_Booke of Register of the Parish of St. Peter in Canterbury_,
89-92, for the period 1640-60; while before 1640 there are
fewer entries, and after 1660 a much less complete record. In
SANDERS'S _Registers of Eastham, Cheshire_, 75-85, the
record begins in 1654 after an interval of ten years; but his
_Registers of Bebington, County Chester_, 129, show a blank
for the years 1654-56. RADCLIFFE'S _Registers of St.
Chad, Saddlworth_, supplement, 450-53, 444-49; and the _Register
Booke of Inglebye iuxta Grenhow_, 165-69, are full and very
interesting. Compare the other registers named in Bibliographical
Note X, showing a few entries each year.
[1325] JOHN GRAUNT, _Natural and Political Observations_
(3d ed., Oxford, 1665), 158, 159 (Appendix). For calling my
attention to this passage I am indebted to the kindness of
Professor Charles H. Hull. In the "Introduction" to his edition
of PETTY'S _Economic Writings_ (Cambridge, 1899),
I, xxxiv ff., lxxv ff., lxxx ff., may be found an account of
Graunt's life and works.
[1326] "The Table of the Parish of Tiverton" (GRAUNT,
_Natural and Political Observations_, 158, 159):
==========================================================
| | CHRISTENED | BURIED
YEARS | WEDDINGS +-----+-----+---------+-----+-----+------
| | M. | F. | Both | M. | F. | Both
------+----------+-----+-----+---------+-----+-----+------
1650 | 9 | 66 | 79 | 145 | 7 | 9 | 16
1651 | 9 | 50 | 63 | 113 | 5 | 10 | 15
1652 | 9 | 80 | 73 | 153 | 48 | 51 | 99
1653 | 21 | 89 | 219 | 208[A] | 47 | 78 | 125
1654 | 108 | 105 | 101 | 206 | 72 | 68 | 140
1655 | 140 | 87 | 104 | 191 | 87 | 114 | 201
1656 | 109 | 107 | 90 | 197 | 56 | 86 | 142
1657 | 102 | 94 | 101 | 195 | 67 | 59 | 126
1658 | 60 | 70 | 83 | 153 | 77 | 85 | 162
1659 | 37 | 77 | 78 | 155 | 72 | 80 | 152
------+----------+-----+-----+---------+-----+-----+------
| 604 | 815 | 891 | 1716 | 538 | 640 | 1178
| | | | | | |
1660 | 27 | 61 | 68 | 129 | 70 | 69 | 139
1661 | 38 | 83 | 93 | 176 | 73 | 85 | 158
1662 | 36 | 73 | 56 | 129 | 91 | 95 | 186
1663 | 35 | 68 | 64 | 132 | 72 | 74 | 146
1664 | 41 | 68 | 72 | 140 | 98 | 114 | 212
------+----------+-----+-----+---------+-----+-----+------
| 177 | 353 | 353 | 706 | 404 | 437 | 841
------+----------+-----+-----+---------+-----+-----+------
[A] Error in the original.
GRAUNT'S "Table for the Country Parish"--identified
by Hull with Romsey in Hampshire (PETTY, _Economic
Writings_, II, 412)--affords similar evidence. The table for
Cranbrook in Kent ends in 1649.
The great success of this early attempt at reform in matrimonial
administration cannot, however, be thoroughly appreciated unless one
reflects that throughout the ages the matter of registration had
been shamefully neglected and the record books recklessly destroyed.
Their custody being "frequently committed to ignorant parish clerks,
who had no idea of their utility beyond their being occasionally
the means of putting a shilling into their pockets for furnishing
extracts;" and "at other times being under the superintendence of an
incumbent, either forgetful, careless, or negligent, the result has
necessarily been that many registers are miserably defective."[1327]
This judgment applies to the times following the Commonwealth as
well as to the period falling between 1538 and the act of 1653.[1328]
[1327] BURN, _Parish Registers_, 40; _cf._
WATERS, _Parish Registers of England_, 10, 11.
In some books many entries are lacking, or there are breaks for
several years together. Often the record is so carelessly made as
to be of little value, even when not entirely illegible. Thus at
St. Ewe, the "parishioners refusing to allow 5s. per annum for
keeping a register, there was none kept for the years 1675-6-7,"
except two entries: BURN, _op. cit._, 41. The clerk
of Plungar, Leicestershire, made use of the registration book
for wrapping paper; and BURN gives many other similar
illustrations in his unique volume: _ibid._, 41 ff.
[1328] See chap. viii, pp. 359 ff., above.
Many specimens of the marriage records of the Commonwealth have been
discovered, representing each phase of procedure.[1329] Of these the
following entry of the marriage of Oliver Cromwell's daughter, taken
by Waters from the register of St. Martin's in the Fields, may serve
as an example:
"These are to certifie whom it may concerne, that according to a
late Act of Parliament ... Publication was made in the publique
meeting place, in the Parish Church of the parish of Martins in
the Fields in the county of Middlesex, upon three several Lord's
Days, at the close of the morning exercise, namely, upon the
XXV. day of October MDCLVII., as alsoe upon the I. and VIII.
day of November following, of a marriage agreed upon between
the Honorable Robert Rich of Andrew's Holborn, and the Right
Honorable the Lady Frances Cromwell, of Martins in the Fields,
in the county of Middlesex. All which was fully performed
according to the Act without exception.
"In witness whereof I have hereunto set my hand the IX. day of
November, MDCLVII.
William Williams,
Register of the Parish of Martins in the Fields."
[1329] The most interesting published records of the period
which I have seen are those contained in the _Register Booke
of Inglebye iuxta Grenhow_ (Canterbury, 1889), extending from
March 13, 1654, to May 3, 1659. They are written in English.
The next entry thereafter, without a word of comment on the
change, is in Latin, as if appropriately to mark the return
of the _ancien régime_. Extracts from various records will be
found also in BURN, _op. cit._, 25, 26, 52, 54, 160
ff.; and of these several are reproduced by FRIEDBERG,
_Eheschliessung_, 327, 328. See also _Reports of the Hist.
Manuscripts Commission_, V, 594 (Par. Registrar, Mendlesham,
Suffolk, 1653-57); _Notes and Queries_, 2d series, III, 306,
307; 3d series, V, 526 (from WILKINSON'S _Hist. of
the Parochial Church of Burnly_, 1856); 3d series, I, 228;
_Gentleman's Magazine_, LIV (1784), 8, giving a certificate of a
marriage at Stratfield Saye, Southampton, October 2, 1654. It is
printed in JEAFFRESON, _Brides and Bridals_, II, 68, 69,
note. Compare the registers cited in Bibliographical Note X.
Then follows this entry "in the hand of Henry Scobell" who was
doubtless the officiating magistrate:[1330]
[1330] Henry Scobell was clerk to the Parliament until 1658,
and compiler of the "Collections of Acts and Ordinances" of the
revolutionary period.
"Married, XI. Novemb., MDCLVII, in the presence of His Highness
the Lord Protector, the Right Honble. the Earls of Warwick
and Newport, Robert Lord Birch, the Lord Strickland, and many
other."[1331]
[1331] WATERS, _op. cit._, 16, 17; BURN, _op.
cit._, 160; quoted also by FRIEDBERG, _op. cit._, 328,
note; and JEAFFRESON, _op. cit._, II, 72, 73, note.
Sometimes the entries are fuller in details, and more ingenious
in orthography. Here is one from the register of "Inglebye iuxta
Grenhow":
"George Middleton of the Parish of Carleton husbandmā, son
of William Middleton of the same parish husbandman & Isabell
Easebie of Green-howe in the parish of Inglebye spinster
daughter of Isabell Easbie of the said Greenhowe; having agreed
to be married did deliver to me Williā Boweston of Inglebie
aforesaid parish Register of the said Inglebie their names
sirnames additions and places of aboade, & the same of their
parents likewise in writeing upon the 19th of ffebruarie 1654.
which was published in the publick meeting place of the said
Inglebye commonly called the Church or chappell upon the 25th of
februarie and the 4th & 11th of March 1654 at the Close of the
morning exercise by me William Boweston Register.
"And the said George Middleton & Isabell Easbie expressed their
consēt unto Marriage by the words of the Act before George
Marwood Esquire one of the Justices of the peace of the Countie
of York & were by the said Justice declared to be husband & wife
the 13th of March 1654
Geo: Marwood."[1332]
[1332] _Register Booke of Inglebye iuxta Grenhow_, 75.
Each of the two documents just presented, it will be noticed,
consists of two parts: the certificate of the register to the
magistrate; and the magistrate's entry in the register book after
the ceremony has been performed. The following is an example of the
marriage certificate which by the act the justice is to deliver to
the parties, when required, to be filed by them with the county
clerk of the peace, if they see fit:
"Fforasmuch as I, having received a certificatt of the date
of the xiij of this month, under the hand and seale of Owen
Perkins, Gent., Register of the consolidated Churches of Mathry,
that Publicacon was made of an intencon of marriage three lord's
days thenbefore in the said parish Church between Phillip Harry
and Ann Harry, if not anything objected to the contrary, These
are therefore at the desire of the Said parties to certify all
whome it may concern, that according to the Act of Parliament
for marriages, the Said Phillip and Anne this present day came
before me, and taking each other by the hand did plainly and
distinctly pronounce the words in the said Acte mencōēd to be
pronounced by them, And thereupon, according to the said Acte, I
pronounce them to be husband and wife. Given under my hand and
seale the ffourteenth day of July, 1655
Thomas Davis."[1333]
[1333] _Notes and Queries_, 2d series, III (1857), 306, 307. For
another certificate of the same kind, of a marriage published
in the market-place, see _Gentleman's Magazine_ (1784), 8;
also quoted by FRIEDBERG, _op. cit._, 327, 328, note;
and other examples may be found in SANDERS'S _Parish
Registers of Eastham_, 76, note; and JEAFFRESON'S
_Middlesex County Records_, III, 223.
The law of 1653, it thus appears, constitutes a singularly
important episode in the social and religious history of England.
It remained in force, with a modification in 1656, during the
seven years preceding the fall of the Commonwealth, and called
forth the fierce opposition and hatred of the royalist party.
It was ridiculed by the pamphleteer[1334] and satirized by the
poet.[1335] Every provision drew forth a sneer. Marriage is made
a "traffic" because published in the market-place; "matrimony and
hanging" join hands before the same justice; and the "lay register"
comes in for his full share of abuse. "Levellers and phanaticks,"
sadly complains one writer, "blush not at their own rushing into
other men's offices,--a bold but witless Justice of y^e Peace,
makes his neighbouring ministers cyphers, whilst he forceth y^e
King's subjects (quite against the graine) to elect and he to
confirm a mere layman in the office of Parish Register--_Proh pudor
fronti enim, nulla fides_."[1336] The recorder of Cirencester in
Gloucestershire charges the lack of entries for several years to the
account of the act passed by the "Rump," the "said Parliament ...
consisting of Anabaptists and Independents;"[1337] while in 1659,
the clerical register of Christ's Church, Hants, spitefully declares
that "maryinge by justices, election of registers by Parishioners,
and the use of ruling elders, first came into fashion in the time
of rebellion, under that monster of nature and bludy tyrant, Oliver
Cromwell."[1338]
[1334] The output of controversial literature on this subject
may have been great, as FRIEDBERG (_op. cit._, 328 n.
2) suggests; but the number of pamphlets preserved does not seem
to be large. In the valuable collection of the Sutro Library,
containing thousands of pamphlets covering nearly every possible
question debated at the time, I have been able to discover but
two pieces on the civil-marriage law. One of these, a copy of
the periodical entitled _Several Proceedings of Parliament_,
publishes the act, which had just passed, without a word of
comment. Friedberg had a similar experience in the Berlin Library.
[1335] FLECKNOE'S _Diarium_ (1656), 83, contains
the following, quoted also by BURN (_op. cit._,
163), JEAFFRESON (_op. cit._, II, 74, 75), and
FRIEDBERG (_op. cit._, 329):
"On the Justice of Peace's Making Marriages And the Crying Them
in the Marcket.
1
Now just as 'twas in Saturn's Reign
The Golden Age is returned again
And Astrea again from heaven is come
When all the Earth by Justice is done.
2
Amongst the rest, we have cause to be glad
Now Marriages are in marckets made
Since Justice we hope will take order there
We may not be cousened no more in our ware
3 and 4
[Indecent stanzas.]
5
So all incommodities would be prevented
And every one would hold them contented,
And all debates in Marriage would cease
When things were done by Justice of Peace.
6
Besides each thing would fall out right
And that old Proverb be verified by't
That Marriage and Hanging both together
When Justice shall have disposing of either.
7 and 8
[Two stanzas with indecent references.]
9
Let Parson and Vicar then say what they will
The Custome is good (God continue it still).
For Marriage being now a Trafique and Trade
Pray where but in Marckets should it be made.
10
Twas well ordain'd they should be no more
In Churches and Chapels then as before
Since for it in Scripture we have example
How buyers and sellers were drov'n out o' th' Temple.
11
Meantime God blesse the Parliament
In making this Act so honestly meant
Of these good marriages God blesse the breed
And God blesse us all, for was never more need."
[1336] WOOTTON, _Linc._: BURN, _Parish
Registers_, 26 n. 1.
[1337] BURN, _op. cit._, 161.
[1338] _Ibid._, 161. See similar examples in WATERS,
_Parish Registers in England_, 18, 19.
On the other hand the principles of this measure found a mighty
champion in Milton, in whose writings, says Friedberg, the religious
tendencies of his party were molded almost into a "scientific
system."[1339] The following extract from "The likeliest means to
remove Hirelings out of the Church" is interesting as epitomizing
the views of the Independents, showing that they were grounded upon
the fundamental principles of Old English custom:
"As for marriages, that ministers should meddle with them, as not
sanctified or legitimate without their celebration, I find no
ground in scripture either of precept or example. Likeliest it
is (which our Selden hath well observed l. II, c. 58, ux. Eb.)
that in imitation of heathen priests, who were wont at nuptials
to use many rites and ceremonies, and especially, judging it
would be profitable, and the increase of their authority, not to
be spectators only in business of such concernment to the life
of man, they insinuated that marriage was not holy without their
benediction, and for the better colour, made it a sacrament;
being of itself a civil ordinance, a house hold contract, a thing
indifferent and free to the whole race of mankind, not as religious,
but as men: best, indeed, undertaken to religious ends, and, as
the apostle saith, I Cor. VII., 'in the Lord.' Yet not therefore
invalid or unholy without a minister and his pretended necessary
hallowing, more than any other act, enterprise, or contract of civil
life, which ought all to be done also in the Lord and to his glory:
all which, no less than marriage, were by the cunning of priests
heretofore, as material to their profit, transacted at the altar.
Our divines deny it to be a sacrament; yet retained the celebration,
till prudently a late parliament recovered the civil liberty of
marriage from their encroachment, and transferred the ratifying and
registering thereof from the canonical shop to the proper cognizance
of civil magistrates."[1340]
[1339] FRIEDBERG, _Eheschliessung_, 325; _Geschichte der
Civilehe_, 13, 14.
[1340] MILTON, _Prose Works_ (Bohn, 1848), III, 21,
22. This volume contains a series of discussions on marriage
and divorce, which together embody all the learning which the
Puritan could produce in support of his theories: _The Doctrine
and Discipline of Divorce_; _The Judgment of Martin Bucer_;
_Tetrachordon_; _Colasterion_, etc.
Milton does not anywhere discuss the _form_ of solemnization
(_cf._ FRIEDBERG, _op. cit._, 327, note). In his
"Exposition on Places of Scripture which treat of Marriage"
(_Works_, III, 341-46), after considering the definitions given
by many writers, he produces one of his own. "Marriage," he says,
"is a divine institution, joining man and woman in a love fitly
disposed to the helps and comforts of domestic life." But he
rejects the doctrine of the Fathers and canonists that marriage
is a "remedy." The "internal Form and soul of this relation is
conjugal love arising from a mutual fitness to the final causes
of wedlock, help and society in religious, civil, and domestic
conversation, which includes as an inferior end the fulfilling of
natural desire, and specifical increase."--_Ibid._, 342.
After the Restoration, though not expressly repealed, the act of
Cromwell was at once superseded by the laws in force before the
Revolution. The more revengeful faction of the royalists even strove
to have all marriages contracted under the act made null and void.
But a proposition so monstrous could not prevail; and a statute
legalizing civil marriages was passed during the first year of
Charles II.[1341]
[1341] 12 C. II., c. 33: _Statutes at Large_, III, 24. _Cf._
FRIEDBERG, _op. cit._, 330. It is curious to see
ASHTON, _The Fleet: Its River, Prison, and Marriages_
(London, 1889), 332, referring to this act as designed merely to
legalize common law or private marriages before witnesses, making
no mention whatever of the act of 1653.
II. FLEET MARRIAGES AND THE HARDWICKE ACT, 1753
In order to understand the cumulative influences which finally in
the middle of the eighteenth century produced the next English
statute prescribing a definite form for marriages, it will be
necessary to point out the anomalies of the old system which during
the period between the Restoration and that time led to abuses of a
most startling character.
Previous to the reign of William III. only spiritual punishment had
been imposed for secret marriages; but under that monarch begins a
series of acts which, though chiefly intended as revenue measures,
in effect prescribed also temporal penalties. The first of these
statutes[1342] was that of 1694 which imposed on all marriages a
direct tax, graduated according to the rank of the parties. To
facilitate the enforcement of the law the clergy were required to
keep registers to which the tax collectors should have access. But
there were certain churches which had long claimed to be exempt
from the episcopal visitations, and therefore they now claimed to
be free from the operation of the statute which had only made the
marriage business of their incumbents more profitable by removing
competition.[1343] A supplementary act was therefore passed in the
following year,[1344] including such places and requiring that all
marriages should be solemnized only after publication of banns or
obtaining the bishop's license, under penalty of one hundred pounds
for the first and three years' suspension from office for the
second violation of the law by any clergyman.[1345] But even this
measure was inadequate. It had not been foreseen that there were
clergymen not comprehended under the titles "parsons, vicars, and
curates" enumerated in the statute. These were actually benefited
by the act.[1346] By connivance on the part of the regular clergy
such ministers were able to evade the law. They "do substitute and
employ," runs the act of 1696, "and knowingly and wittingly suffer
and permit, diverse other Ministers to marry great Numbers of
Persons in their respective Churches and Chapels without Publication
of Banns or Licenses of marriage first had and obtained; many of
which Ministers so substituted, employed, permitted and suffered to
marry, as aforesaid, have no Benefices or settled Habitations, and
are poor and indigent, and cannot easily be discovered and convicted
of the Offences aforesaid: And whereas Ministers, being in Prison
for Debt or otherwise, do marry in the said Prisons, many Persons
resorting thither for the Purposes aforesaid, and in other Places
for Lucre and Gain to themselves,"[1347] therefore the one hundred
pounds' penalty prescribed in the former statute is extended to
these cases,[1348] and a fine of ten pounds is imposed on every man
married without banns or license.
[1342] 5 and 6 W. III., c. 21: _Statutes at Large_, III, 358-62.
[1343] It should be remembered that even in case of the secret
or irregular marriages the priest often officiated. The great
object was to avoid publicity. Hence churches which were or
claimed to be free from the visitations or oversight of the
bishop allowed marriage without banns or license. This became a
lucrative source of revenue. For example, in the church of St.
James, Duke's Place, between 1664 and 1691, about forty thousand
marriages were thus celebrated; and many were celebrated at
Trinity Minores: BURN, _Fleet Marriages_, 2-5; _idem_,
_Parish Registers_, 146; FRIEDBERG, _Eheschliessung_,
332-35. _Cf._ also JEAFFRESON'S chapter on "Prisons and
'Lawless' Churches," in _Brides and Bridals_, II, 115-21.
[1344] 6 and 7 W. III., c. 6, § 52: _Statutes at Large_, III,
370. _Cf._ HAMMICK, _Marriage Law of England_, 10; also
JEAFFRESON'S chapter on "Taxes on Celibacy," _op. cit._,
II, 78 ff., and 131 ff., 167 ff.
[1345] Violations of the law did not, however, invalidate the
marriage: LECKY, _England in the 18th Century_, I, 531.
[1346] _Cf._ JEAFFRESON, _op. cit._, II, 168, 169.
The last paragraph of the above quotation is interesting as being
perhaps the first statutory reference to the celebrated "Fleet"
marriages, which constitute one of the most astonishing chapters
that the history of ecclesiastical administration can produce.
The Fleet, as is well known, was the prison in which formerly
all prisoners for debt from the entire kingdom were, or could
demand to be, confined. On account of the scant accommodation for
the vast number congregated there, it became customary to allow
those who could give security for appearance in the prison when
summoned to take private lodgings or set up a private establishment
anywhere within the "rules of liberties" of the Fleet--a portion
of London of considerable area and well defined limits.[1349]
The Fleet had a chapel with a regular chaplain of its own, who
sometimes eked out his income through fees for fraudulent and
clandestine marriages.[1350] But here were confined among others
many clergymen, some of whom made a regular business of celebrating
marriages; and they had to compete with other parsons, often
disreputable men, perhaps deprived of their places or benefices for
misconduct, who took up their abode in the precincts of the Fleet to
gain a living from the disgraceful traffic in matrimony. Even laymen
may have sought a share in the profits; and these, like the others,
did not fail to wear the priestly "cassock, gown, and bands,"[1351]
in order to impose upon the unwary. The ceremony was not performed
in church, but in the private rooms of the parson. Often an office
or marriage shop was opened and a big sign-board hung out announcing
the business and commending the quality of service rendered
within,[1352] while standing advertisements were also kept in the
newspapers. The following notice of his business by parson Lando is
quoted by Friedberg from the _Daily Advertiser_, 1749:
"Marriages with a Licence, Certificate and a Crown Stamp, at a
Guinea, at the New Chapel, next door to the China Shop, near Fleet
Bridge, London, by a regular bred Clergyman, and not by a Fleet
Parson as is insinuated in the public papers; and that the Town may
bee freed mistakes, no Clergyman being a prisoner in the Rules of
the Fleet dare marry; and to obviate all doubts, this chapel is not
in the verge of the Fleet, but kept by a Gentleman who was lately
Chaplain on board one of his Majesty's men-of-war, and likewise has
gloriously distinguished himself in defence of his King and Country,
and is above committing those little mean actions that some men
impose on people, being determined to have every think conducted
with the utmost decency and regularity, such as shall be always
supported in law and equity."[1353]
[1347] Extract from 7 and 8 W. III., c. 35: _Statutes at Large_,
III, 422.
[1348] "But this penalty was not renewed at each violation of
the act, and the offender was able by a writ of error to obtain
a delay of about a year and a half, during which time he carried
on his profession without molestation, made at least 400 l. or
500 l. and then frequently absconded."--LECKY, _Hist. of
Eng. in the 18th Century_, I, 533; _cf._ BURN, _Fleet
Marriages_, 6.
[1349] For full details as to the history of the Fleet, see
ASHTON, _The Fleet: Its River, Prison, and Marriages_,
especially 233 ff., 237 ff., 331 ff. "The rules of liberties of
this comprehend all Ludgate-Hill to the Old Bailey on the north
side, and to the Cock-alley on the south; both sides of the Old
Bailey to Fleet-lane; all Fleet-lane and the east-side of the
marcket, from Fleet-lane to Ludgate Hill."--HARRISON,
_New and Universal Hist. of London_ (London, 1776), II, 447;
FRIEDBERG, 336 n. 4. _Cf._ also JEAFFRESON,
_op. cit._, II, 122 ff.
[1350] BURN, _op. cit._, 7, 8; ASHTON, _op.
cit._, 332, 338; TEGG, _The Knot Tied_, 202. These
chaplains "of course, married people after publication of banns
in their own chapels according to law;" and doubtless some of
the weddings before them were entirely respectable. Such was
probably the marriage in the Fleet of George Lester and Mistress
Babbington as early as 1613: BURN, _op. cit._, 5;
ASHTON, _op. cit._, 335, 338; TEGG, _op. cit._,
199. But in these chapels as well as out of them clandestine
marriages were solemnized. Here is an example from the _Original
Weekly Journal_ of Sept. 26, 1719: "One Mrs. Anne Leigh, an
heiress of £200. per annum and £6000. ready cash, having been
decoyed away from her friends in Buckinghamshire, and married
at the Fleet chapel against her consent; we hear the Lord Chief
Justice Pratt hath issued out his warrant for apprehending the
authors of this contrivance, who had used the young lady so
barbarously, that she now lyes speechless."--BURN,
_op. cit._, 7 n. 2; also ASHTON, _op. cit._, 338, 339.
Celebration in the Fleet chapel, not elsewhere, was put an end
to by the act of 10 Anne, c. 19. _Cf._ HAMMICK, _The
Marriage Law of England_, 11; BURN, _op. cit._, 8.
[1351] ASHTON, _op. cit._, 340.
[1352] The following is a copy of the "hand-bill" of Peter Symson
taken from BURN'S _Fleet Marriages_, 54:
G. R.
At the true Chapel
at the old red Hand and Mitre, three doors from Fleet Lane
and next Door to the White Swan;
Marriages are performed by authority by the Reverend Mr.
Symson educated at the University of Cambridge, and late
Chaplain to the Earl of Rothes.
N.B. Without Imposition
Symson, as he says, was not a prisoner. Like "many of his
fellows," he was witness in a bigamy trial in 1751. He was asked:
"Why did you marry them without license?"
"_Symson_--Because somebody would have done it, if I had not....
Never had a benefice in my life. I have had little petty curacies
about £20 or £30 per year. I don't do it for lucre or gain.
"_Court_--You might have exposed your person had you gone on
the highway, but you'd do less prejudice to your country a
good deal. You are a nuisance to the public; and the gentlemen
of the jury, it is to be hoped, will give but little credit
to you."--BURN, _op. cit._, 55; ASHTON,
_op. cit._, 357, 358. On Symson (or Symsen) see also
JEAFFRESON, _op. cit._, II, 152.
[1353] FRIEDBERG, _op. cit._, 341; quoted also by
ASHTON, _op. cit._, 359; and BURN, _op. cit._,
59.
Pennant, in his _Account of London_, written "at the end of the
last century," gives us a realistic picture of the Fleet parson.
"In walking along the street, in my youth, on the side next to the
prison, I have often been tempted by the question, _Sir, will you be
pleased to walk in and be married?_ Along this most lawless space
was hung up the frequent sign of a male and female hand conjoined,
with, _Marriages performed within_, written beneath. A dirty fellow
invited you in. The parson was seen walking before his shop; a
squalid profligate figure, clad in tattered plaid night gown, with
a fiery face, and ready to couple you for a dram of gin, or roll of
tobacco."[1354]
[1354] PENNANT, _Some Account of London_ (3d ed., 1793),
232; ASHTON, _op. cit._, 344; also in BURN,
_op. cit._, 16, note.
Moreover, various taverns, for the sake of the profit derived
from the festivities connected with weddings, kept salaried Fleet
parsons or others in their employ and made announcement of this
extra accommodation also by a sign containing the businesslike
inscription: "Marriages performed here."[1355] Literally thousands
of marriages were celebrated by Fleet parsons every year. A single
priest, John Gainham,[1356] between the years 1709 and 1740, during
which he was confined, "solemnized" thirty-six thousand marriages,
though he had many competitors.[1357] Not only the Fleet prisoners
and the lower classes of the city, but many persons of noble titles
and illustrious names are enumerated among their customers.[1358]
The question naturally arises: What were the causes of this singular
phenomenon? There were several inducements to the patronage of Fleet
parsons, chief of which were the superior cheapness and avoidance of
publicity.[1359] Smaller fees and no banns were required. Besides
parental consent, which was indispensable for minors in regular
marriages, was unnecessary in the Fleet. Moreover, it was a popular
error of the times that a woman by marriage ceased to be liable for
debts previously contracted.[1360]
[1355] LECKY, _Eng. in 18th Century_, I, 5-31;
BURN, _op. cit._, 8; FRIEDBERG, _op. cit._,
341, who quotes the following from the _Weekly Journal_,
1723, June 29: "Several of the above mentioned brandy-men and
victualers keep clergymen in their houses at 20 shillings per
week each, hit or miss, but its reported that one there will
stoop to no such low conditions, but makes at least 500 pounds
per annum of Divinity-jobs after that manner." _Cf._ also
TEGG, _The Knot Tied_, 205, note, for the same extract.
[1356] John Gainham, the "wrynecked parson," as he is
frequently called in the contemporary newspapers, rejoiced
in the significant title of "Bishop of Hell." When asked by
an advocate whether he was "not ashamed to come and own a
clandestine marriage in the face of a court of justice," he
blandly replied: _Video meliora, deteriora sequor_. The following
lines from the "Morning Walk, 8°, 1751" (BURN, _Parish
Registers_, 155), may be compared with similar lines reprinted by
ASHTON (_op. cit._, 345, 346):
Where lead my wand'ring footsteps now? the _Fleet_
Presents her tatter'd sons in Luxury's cause:
Here venerable _Crape_ and scarlet Cheeks,
With nose of purple hue, high eminent
And squinting leering looks, now strike the eye.
B-sh-p of Hell, once in the precincts call'd
Renown'd for making thoughtless Contracts, here
He reign'd in bloated reeling majesty
And passed in Sottishness and Smoke his time--
Rever'd by _Gins_ adorers, and the tribe
Who pass in brawls, lewd jests, and drink, their days,
Sons of low, groveling riot and debauch.
Here Cleric grave from _Oxford_ ready stands
Obsequious to conclude the Gordian knot,
Entwin'd beyond all dissolution sure;
A Reg'lar this from _Cambridge_; both alike
In artful Stratagem to tye the noose,
While women 'Do you want the Parson?' cry."
[1357] On Gainham see BURN, _Parish Registers_, 155,
156; _idem_, _Fleet Marriages_, 49-53; ASHTON, _The
Fleet_, 344-47; FRIEDBERG, _Eheschliessung_, 339, 340;
JEAFFRESON, _Brides and Bridals_, II, 151.
[1358] LECKY, _op. cit._, I, 532. See the examples
in FRIEDBERG, _op. cit._, 343, extracted from
BURN, _Fleet Marriages_, 94 ff.; JEAFFRESON,
_op. cit._, II, 174, 175; and ASHTON, _op. cit._, 381,
361, 387. Even Lord Chancellor Ellesmere and Sir Edward Coke,
Chief Justice of England, had contracted secret marriages:
FRIEDBERG, _op. cit._, 344; citing MACQUEEN,
_Treatise of Marriage, Divorce_, &c. (London, 1860), 6.
[1359] There seems to have been much dislike for the publicity
of banns even on the part of the aristocracy: see the letter of
Horace Walpole to Henry Seymour Conway, May 24, 1753, _Letters_,
II, 334-36; FRIEDBERG, _Eheschliessung_, 342; _idem_,
_Geschichte der Civilehe_, 15; FRY, _Considerations on
... Clandestine Marriages_, 8.
[1360] "Therefore there were in the Fleet a number of men who
placed themselves at the disposal of female prisoners for
marriage; as Armstrong, who, within fourteen months, married
four women, and, as an entry in the register reads, received
eight shillings 'for his trouble.'"--FRIEDBERG,
_Eheschliessung_, 342. GALLY, _Some Considerations upon
Clandestine Marriages_ (London, 1750), 14-16, appears to believe
that women could thus escape their debts. _Cf._ NORTON,
_Die Frauen in England_ (Berlin, 1855), 267; and BURN,
_Fleet Marriages_, 83.
With this should be compared the companion error that a man is
not liable for his bride's debts if he takes her only in her
"smock" or "shift": BURN, _Parish Registers_, 153, 154,
note; ASHTON, _The Fleet_, 386, 387; _idem_, _Social
Life in the Reign of Queen Anne_, 41; and further notices of
"smock marriages" in BRAND, _Popular Antiquities_, III,
205, 380; _Notes and Queries_, 1st series, VI, 485, 561; VII,
17, 84; TEGG, _The Knot Tied_, 299-301; WOOD,
_The Wedding Day_, 115, 116; and RADCLIFFE, _The Parish
Registers of St. Chad, Saddlworth_, 58.
"Another error, common amongst the lower orders, is, that a
man may lawfully sell his wife to another, provided he deliver
her over with a halter about her neck.--And another, that a
woman's marrying a man under the gallows, will save him from
the execution. 'While we lay here (New York, A. D. 1784), a
circumstance happened which I thought extremely singular. One
day, a malefactor was to be executed on a gallows, but with a
condition that if any woman, having nothing on but her shift,
married the man under the gallows, his life was to be saved.
This extraordinary privilege was claimed, a woman presented
herself, and the marriage ceremony was performed' (_Life of
Oulandah Equiano_, vol. ii, p. 224).--If this took place, our
American cousins must have jumbled the two popular errors
together."--BURN, _Parish Registers_, 154, note. _Cf._
BRAND, _op. cit._, III, 379; also BARRINGTON,
_Observations on Our Ancient Statutes_, 475, who traces the error
to the ancient right of the woman to "appeal" for murder of her
husband.
As a matter of course, frightful abuses grew out of this system.
Registers were kept, but they were often falsified and were of
little value as evidence. False oaths by the score were taken by
parsons.[1361] Young girls were abducted and carried before some
clerical scoundrel of the Fleet and forcibly married for the sake of
the fees.[1362] Persons were enticed by "plyers" or touts[1363] into
ale-houses, made drunk, and married while in this condition.[1364]
Of course, now and then a case of unusual flagrancy attracted
the attention of the public, and the criminals were brought to
justice. But it is a sad commentary on the moral debasement and
utter formalism of the English church during the first half of the
eighteenth century that no serious attempt seems to have been made
to deprive these monsters of their priestly character. The existing
civil laws were powerless to remedy the evil. The Fleet parson
could practically bid them defiance.[1365] In the lively words of
Friedberg, "what could befall him according to existing legislation?
Ought the bishop to remove him from office? That had already
occurred when he was dragged from his living to prison. Ought his
spiritual superior to have him locked up? He was already a prisoner.
Should he be mulcted in a sum of money? He had none."[1366]
[1361] Marriages were often antedated (see especially the case
of John Mottram, 1717: BURN, _Fleet Marriages_, 11, 12,
note; ASHTON, _The Fleet_, 343, 344; FRIEDBERG,
_Eheschliessung_, 337; TEGG, _The Knot Tied_, 204);
and false oaths were common. The notorious parson Walter Wyatt
complains that "if a clark or plyer tells a lye, you must
vouch it to be as true as y^e Gospel; and if disputed, you
must affirm with an oath to y^e truth of a downright damnable
falsehood.--Virtus laudatur & alget."--BURN, _op. cit._,
7; ASHTON, _op. cit._, 337. The _Grub Street Journal_,
July 20, 1732, says: "On Saturday last a Fleet parson was
convicted before Sir Ric. Brocas of forty-three oaths, (on the
information of a plyer for weddings there) for which a warrant
was granted to levy _4l. 6s._ on the goods of the said parson;
but, upon application to his Worship, he was pleased to remit
_1s._ per oath; upon which the plyer swore he would swear no
more against any man upon the like occasion, finding he could
get nothing by it."--BURN, _op. cit._, 7 n. 1; also in
ASHTON, _op. cit._, 338.
[1362] In 1690 James Campbell, brother of the Duke of Argyle,
caused to be abducted and then married Mrs. Wharton. For managing
this abduction Sir John Johnston was executed at Tyburn: this
case is in _Reports of the Historical Manuscripts Commission_,
V, 380, XIII, App. V, 217. _Cf. ibid._, IV, 345, for a case of
abduction in Ireland, 1801.
[1363] On the tout or plyer see BURN, _op. cit._, 7,
_passim_; ASHTON, _op. cit._, 337, 338, 344, 350, 357;
JEAFFRESON, _op. cit._, II, 142, 143.
[1364] LECKY, _Eng. in 18th Cent._, I, 532;
FRIEDBERG, _op. cit._, 339, note.
[1365] Occasionally someone was committed for complicity in
procuring Fleet marriages: see cases in ASHTON,
_op. cit._, 379, 380; and at least one Fleet marriage was
declared illegal: _General Evening Post_, June 27/29, 1745:
ASHTON, _op. cit._, 382.
[1366] FRIEDBERG, _op. cit._, 337. See similar remarks
in GALLY, _Considerations upon Clandestine Marriages_,
28, 29.
There were also other places in which the same irregularities
existed.[1367] Among these were Tyburn, the Tower,[1368] the
King's Bench prison, and a chapel in Mayfair. In the latter place
Rev. Alexander Keith, whom Horace Walpole styles the "marriage
broker,"[1369] performed each year on the average six thousand
marriages, while in the neighboring church of St. Anne only
fifty regular contracts were solemnized. We can easily credit
the statement that he derived therefrom a "very bishopric of
revenue."[1370] When finally the Hardwicke act put an end to his
traffic, he declared, with many oaths, that he would not be outdone
by the bishops, but would buy a piece of ground and "under-bury
them."[1371] Keith himself has left behind what Ashton thinks is a
"plain unvarnished tale" of Fleet marriages. In a pamphlet written
at the time Lord Hardwicke's act was under discussion he says: "As
I have married many thousands, and, consequently, have on these
occasions seen the humour of the lower class of people, I have often
asked the married pair how long they had been acquainted; they would
reply, some more, some less, but the generality did not exceed the
acquaintance of a week, some only of a day, half a day, etc....
Another inconvenience which will arise from this Act will be, that
the expence[1372] of being married will be so great, that few of the
lower class of people can afford; for I have often heard a Flete
parson say, that many have come to be married when they have but
half-a-crown in their pockets, and sixpence to buy a pot of beer,
and for which they have pawned some of their cloaths.... I remember
once on a time, I was at a public house at Radcliffe, which was
then full of Sailors and their girls, there was fiddling, piping,
jigging, and eating; at length one of the tars starts up" and swore
he would "be married just now," with a rough jest. "The joke took,
and in less than two hours ten couple set out for the Flete. I staid
their return. They returned in coaches; five women in each coach;
the tars, some running before, others riding on the coach box, and
others behind. The Cavalcade being over, the couples went up into
an upper room, where they concluded the evening with great jollity.
The next time I went that way, I called on my landlord and asked him
concerning this marriage adventure: he at first stared at me, but,
recollecting, he said those things were so frequent, that he hardly
took any notice of them; for, added he, it is a common thing, when a
fleet comes in, to have two or three hundred marriages in a week's
time, among the sailors."[1373]
[1367] See the names of several places in BURN, _Parish
Registers_, 146.
[1368] Laud had put an end to these irregular marriages in
the Tower. At his trial in 1644 he was for this accused of
interfering with popular liberty, and ably defended himself by
showing the legality of his action: JEAFFRESON, _op.
cit._, II, 116, 117; BURN, _op. cit._, 145 n. 2.
[1369] _Letters of Horace Walpole_, II, 337 (Letter to George
Montagu, Esq.).
[1370] LECKY, _Eng. in 18th Cent._, I, 531;
FRIEDBERG, _op. cit._, 344; KNIGHT, _Hist. of
England_, V, 586; _cf._ BURN, _Fleet Marriages_, 143.
[1371] _Letters of Horace Walpole_, II, 337; BURN, _op.
cit._, 145, note; LORD MAHON, _Hist. of England_ (New
York, 1849), II, 280. On Keith see BURN, _op. cit._,
141-45; JEAFFRESON, _op. cit._, II, 158 ff.
[1372] Not the least evil connected with the Fleet marriages was
the promotion of unions between the indigent and those morally
unfit for the marriage relation: see Bond's speech on the
Hardwicke act, COBBETT, _Parliamentary History_, XV,
46, 47. But, of course, as Ashton suggests, the lighter expense
may have induced respectable people to seek the Fleet parson,
or otherwise to marry privately. "A public marriage had come to
be a very expensive affair. There was a festival, which lasted
several days, during which open house had to be kept; there were
the marriage settlements, presents, pin money, music, and what
not."--ASHTON, _The Fleet_, 333, 334, who also quotes
Misson's description of a private marriage in the time of William
III. For Misson's account, see also JEAFFRESON, _op.
cit._, II, 109 ff.
In his speech against the Hardwicke act Mr. Nugent, to show
how "fond our people are of private marriages, and of saving a
little money," says that in a year six thousand were married in
Keith's Chapel as against fifty in the neighboring St. Anne's
Church, in a populous parish and convenient for private marriages
by license, though the difference in expense was only 8 or 10
shillings: COBBETT, _Parliamentary History_, XV, 19;
_cf. ibid._, 41.
[1373] KEITH'S _Observations on the Act for Preventing
Clandestine Marriages_: ASHTON, _The Fleet_, 363, 364;
also in BURN, _Fleet Marriages_, 144, 145.
Several other interesting descriptions of these disgraceful
"operations" have been handed down. Such are the sprightly verses
entitled the "Bunter's Wedding;"[1374] and especially the realistic
account of the abduction of her friend given by an anonymous writer
in the _Grub Street Journal_ for January 15, 1735.[1375] But the
most eloquent testimony of all is afforded by the Fleet registers,
many of which are still preserved.[1376] The notes appended to the
entries are at once amusing and very suggestive. The following
examples are selected from Burn:
"N. B. they had liv^d together 4 years as man and wife: they were so
vile as to ask for a Certifycate to be antidated."
"Quarrelsome people."
"N. B. they wanted an antidate from 45 to 41."
"N. B. Both y^e man and woman were exceeding vile in their
behaviour."
"N. B. the woman was big w^{th} child, and they wanted a Certifycate
antidated; and because it was not comply'd with, they were abusive
w^{th} a Witness."
"N. B. the person belonging to y^e house aloud me only 2^s out of
8^s."
"Had a noise foure hours about the money."
"N. B. stole a silver spoon."
"Stole my cloathes brush."
"The person who was with them I believe knew it to be a made
marriage."
"Her eyes very black, and he beat about y^e face very much."
"The woman ran across Ludgate Hill in her shift. 10^s."[1377]
"N. B. A coachman came and was half married, and wou'd give but 3^s
6^d and went off."[1378]
[1374] This "poem," in twenty eight-line stanzas, is given by
ASHTON, _op. cit._, 369-72.
[1375] Quoted by BURN, _Fleet Marriages_, 14, 15, note;
ASHTON, _op. cit._, 372-75; also by FRIEDBERG,
_Eheschliessung_, 338, 339, note; and JEAFFRESON, _op.
cit._, II, 176, 177.
[1376] On the preservation of the Fleet registers see
ASHTON, _op. cit._, 382-88; BURN, _op.
cit._, 66 ff.; HAMMICK, _Marriage Law_, 11, 12; and
WHITAKER, in the _Cornhill Magazine_, May, 1867. By
3 and 4 Vict., c. 92, the Fleet and Mayfair registers, twelve
hundred books of various sizes, are deposited in the office of
the registrar-general at Somerset House (HAMMICK, _op.
cit._, 12).
[1377] An example of the "smock" marriage; see p. 441 n. 3, above.
[1378] For these entries see BURN, _Parish Registers_,
153-55; and there are many others in _idem_, _Fleet Marriages_,
73 ff.
Long before the middle of the eighteenth century it is very clear
there was crying need of thoroughgoing reform in the marriage laws
of England. To the surviving disorders arising in mediæval theory
had come new ones of more modern growth. For, besides the shameful
irregularities of the Fleet, clandestine contracts, either through
the help of "hedge parsons"[1379] or else by simple agreement of
the parties, illegal but not invalid, were still freely practiced
throughout the kingdom. From 1666 onward during the seventeenth
and eighteenth centuries efforts were repeatedly made to provide a
remedy by legislation; but no bill succeeded in passing both houses
of Parliament.[1380] The legislation of William and Anne, already
referred to, proved an encouragement rather than a hindrance to
clandestine unions. The rivalry of the prisons, "lawless" churches,
and the regular Fleet chaplain was thus removed; conviction for
breach of the statutes was rendered exceedingly difficult; and
the increased expense caused by the tax upon licenses favored the
business of parsons who were ready to "solemnize" marriages at low
rates and without troublesome or costly conditions.[1381] Even the
notorious cases of Haagen Swendsen in 1702 and "Beau" Feilding in
1706, though calling sharp attention of the public to the frightful
dangers lurking in the matrimonial laws, were not enough to quicken
the conscience of the nation.[1382] A timely edition of Dr. Gally's
sensible book[1383] in 1750 did something to educate the public
mind; and finally in 1753 the celebrated case of Cochrane _v._
Campbell,[1384] originating in Scotland, came in the last instance
before the House of Lords. The validity of a marriage which had
been legally celebrated and which had continued for nearly thirty
years was challenged on account of previous secret _sponsalia de
praesenti_. Save for lack of evidence of the alleged prior contract,
"the wife who in true love during so long a time had been devoted
to her husband, though already dead," would have been "degraded
to the position of a concubine, the children begotten in marriage
branded as bastards, and robbed of their inheritance."[1385] This
case proved to be the proximate cause of the passage of the famous
Hardwicke act of 1753. On January 31 of that year, on motion of Lord
Bath, the House of Lords decided to bring in a "Bill for the better
preventing of Clandestine Marriage." The drafting of the bill was
intrusted to the twelve judges, but the draft presented by them was
so imperfect, that the chancellor, Lord Hardwicke, undertook its
thorough revision.[1386]
[1379] HAMMICK, _Marriage Law of Eng._, 11.
[1380] See the chronology of these bills to prevent clandestine
marriages in FRIEDBERG, _Eheschliessung_, 346-48; and
compare BURN, _Fleet Marriages_, 11 ff. Three of them
introduced respectively in 1677, 1685, and 1691, may be found
in the _Reports of the Historical Manuscripts Commission_, IX,
App. II, 91-99; XI, App. II, 276-80; XIII, App. V, 253 ff. The
first declares that "notwithstanding all provisions by law ...
several minors have ... been clandestinely married without
consent of parents, and other irregular marriages have been
made;" therefore it is enacted that it "shall not be in the power
of any son, being under the age of twenty-one years, nor ... of
any daughter ... under ... eighteen, to marry ... or to make a
matrimonial contract of any kind whatsoever;" except the father
or guardian "shall have given consent in writing attested by two
credible witnesses at the least, ... or shall be present and
consenting thereto," under penalty of nullity of the marriage.
After the death of father and mother, the same restriction is
put upon the contracts of males under eighteen and females
under fourteen without the guardian's consent. "If any guardian
shall be privy to any such pretended marriage," he shall lose
"all his right, title, and interest to the custody of any such
minors" and "shall also forfeit one moiety of his whole estate,
both real and personal," one-half to the king and the other to
the informer. If "any domestic or menial servant shall make any
pretended marriage or matrimonial contract" with "any of the
children or pupils of his or her mistress during their minority,
and in such manner as ... is by this act declared to be ... null
and void," such servant shall suffer three years' imprisonment.
"Every ecclesiastical person who celebrates such a marriage or
any marriage whatsoever whereof the banns had not been published
as required by the ecclesiastical law, shall be adjudged deprived
ipso facto of all benefices, dignities, pensions, and spiritual
promotions which he had at time of such offence or at any time
after." Personating a priest in such cases is constituted felony
without benefit of clergy, punishable by death. For violating the
act in the issue of a license, the offender shall forfeit his
office and be incapable of holding office in church or state. The
bill of 1691 is very similar in its provisions.
[1381] The evil results of these blundering statutes are
vigorously stated by JEAFFRESON, _Brides and Bridals_,
II, 167 ff., 130 ff., 84. The effects of 7 and 8 W. III., were
especially bad. Before its enactment "it was in the power of
any rogue married at a tavern-wedding to inform against the
officiating clergyman, without rendering himself liable to
punishment for his part in the irregular transaction. Any clerk
or other person who assisted at a marriage without license or
banns, could also with impunity turn informer against the lawless
priest;" but by placing a penalty on all these persons "the
mouths of individuals who were best qualified and most likely
to give conclusive evidence against the peccant clergyman" were
closed: _ibid._, 170, 171.
[1382] For these cases see HOWELL, _State Trials_, XIV,
559 ff., 1327 ff. The facts are summarized by FRIEDBERG,
_Eheschliessung_, 344-46. The case of "Barbara late Dutchess of
Cleaveland" against Feilding, with much concerning Feilding's
other adventures, may be found in _Cases of Divorce for Several
Causes_ (London, 1715). Elopement with heiresses is discussed
by ASHTON, _Social Life in the Reign of Queen Anne_,
I, 29 ff. Of Haagen Swendsen, "who was, in 1702, convicted and
executed for stealing Mrs. Rawlins," he says: "Nowadays, he
would have been unhesitatingly acquitted, even if he had ever
been presented, as there was no real case against him, and Mrs.
Rawlins married him of her own free will."
In the _Report of the Royal Commission, 1868_, xxi-xxiii, it is
estimated that one-third of all the marriages in the eighteenth
century were "irregular;" whereas, after 1834, when the ministers
of all denominations could solemnize, irregularity became a
"stigma," the number of such contracts now (1868) being in the
ratio of 1 to 1,000.
[1383] GALLY, _Some Considerations upon Clandestine
Marriages_ (2d ed., London, 1750). The first edition of this work
appeared in 1730. It is strong evidence of the slow progress of
opinion on social questions that, a century after the enlightened
legislation of Cromwell, the author should have found it
necessary to enter into an elaborate argument to establish the
right of the state to make the observance of prescribed forms
and conditions essential to a valid marriage. Sec. i assigns
"some general reasons for a law to annul clandestine marriages;"
sec. ii presents "what the civil law has done on this subject;"
sec. iii shows "what has been done in France;" and in sec. iv
six objections to the adoption of such a law are answered. Dr.
Gally's book was referred to in the debates on the Hardwicke act.
[1384] Cochrane _alias_ Kennedy _v._ Campbell: PATON'S
_Reports of Cases decided in the House of Lords on Appeal from
Scotland_, I (1726-57), 519-32; and WILSON AND SHAW'S
_Cases_, III, 135, note. The appeal of the claimant was dismissed
by the Lords for want of evidence; and only on this ground was
that tribunal spared the cruel necessity of declaring void
the marriage of persons who for many years had lived together
openly as husband and wife. There are notices of the case in
WALPOLE, _Memoirs of the Reign of George II._ (2d ed.,
1847), I, 336 ff.; COBBETT, _Par. History_, XV, 8;
JEAFFRESON, _Brides and Bridals_, II, 181.
[1385] FRIEDBERG, _Eheschliessung_, 349. Friedberg
states erroneously that the Lords declared the marriage void.
[1386] "Lord Bath invented this Bill, but had drawn it so ill,
that the Chancellor was forced to draw a new one--and then grew
so fond of his own creature, that he has crammed it down the
throats of both Houses, though they gave many a gulp before
they could swallow it."--WALPOLE to Conway, May 24,
1753: HORACE WALPOLE'S _Letters_, II, 334-36; also in
COBBETT, _Parliamentary History_, XV, 33.
With little resistance the revised bill was readily passed through
the Lords, the bishops even yielding their assent. But in the
Commons it came to its final passage on June 6, 1753, only after a
long and stormy contest. The press and the people participated in
the excitement;[1387] and the tenacity of the old custom of private
espousals is shown by the fact that the large majority of the latter
were opposed to the measure, though this may in part be accounted
for on the ground of its intolerance toward the dissenters. In
the lower house the bill was ably supported by Attorney-General
Ryder, Lord Barrington, the Earl of Hillsborough, Solicitor-General
Murray, and by Mr. John Bond whose speech is remarkable for its
strong argument and sober common-sense. Most prominent on the other
side were Mr. Nugent, Colonel George Haldane, Charles Townshend,
and, in particular, Henry Fox who in 1744 had himself contracted a
clandestine marriage in the Fleet with the daughter of the Duke of
Richmond.[1388] Another bitter antagonist of the bill was Horace
Walpole, "two members of whose family were known to have entered
matrimony by uncanonical wedlock, and one of whose nieces, several
years after the enactment of Lord Hardwicke's Marriage Bill, became
the bride of the most famous Fleet marriage on record."[1389]
The arguments in support of the measure are direct, practical,
and convincing; those of its opposers for the most part, except
as directed to faults of detail, seem captious, forced, or even
frivolous, when looked at in the light of modern experience. When
they saw that the bill was likely to pass, they sought to make it
obnoxious by mutilation and amendment.[1390]
[1387] For contemporary discussions see _Gentleman's Magazine_,
XXIII, 399, 400, 452, 453, 538; XXIV, 145; XXV, 212; _Monthly
Review_, XII, 111 ff., 438-46 (notices of various pamphlets
including some by Dr. Stebbing); _ibid._, XIII, 92-95,
394 ff.; XVI, 371; XXXII, 233; XL, 226, 425-56. Compare
FRIEDBERG, _Eheschliessung_, 352 n. 1, who gives the
titles of several pamphlets relating to the act; MADAN,
_Thelyphthora_, II, 38-90, "cannot mention or even think" of
it "without indignation," because it "strikes at a divine
institution."
[1388] BURN, _Fleet Marriages_, 16; TEGG,
_The Knot Tied_, 206. For the debates in the Commons see
COBBETT, _Parliamentary History_, XV, 2-86; and compare
the excellent analysis by FRIEDBERG, _Eheschliessung_,
350-52; also HORACE WALPOLE, _Letters_, II, 334-36;
_idem_, _Memoirs of George II._, I, 336-49; BURN,
_Parish Registers_, 32, 33; _idem_, _Fleet Marriages_, 16 ff.,
22-31 (entire account of Lord Orford quoted); LECKY,
_Eng. in 18th Cent._, I, 539; _idem_, _Democracy and Liberty_,
II, 174-77; SPENCER WALPOLE, _Hist. of Eng._, IV,
69, 70; KNIGHT, _Hist. of Eng._, V, 585; LORD
MAHON, _Hist. of Eng._, II, 280-82; HAMMICK,
_Marriage Law_, 12, 13; and OPPENHEIM, "Die
Verhandlungen des Eng. Parliaments über Einführung der
Civil-Ehe," _ZKR._, I, 9 ff., 14, 15, 20-22.
[1389] JEAFFRESON, _Brides and Bridals_, II, 183,
174, 175, note. Royal marriages were not comprehended by the
Hardwicke act; hence irregular marriages of royal persons were
still legal. On September 6, 1766, in a mansion in Pall Mall,
Maria, Countess-Dowager of Waldgrave, niece of Horace Walpole,
contracted a clandestine marriage, without witnesses, banns,
license, or record, with the Duke of Gloucester, brother of
George III. Her private chaplain performed the ceremony; hence,
except in form, this was not strictly a Fleet marriage. A few
years later, on Oct. 2, 1771, another brother of the king, the
Duke of Cumberland, formed a similar irregular alliance with Anne
Horton; but in this case there were a witness and a memorandum.
Both marriages were declared legal by a special commission: see
the chapter of JEAFFRESON, on "Two Royal Marriages,"
_op. cit._, II, 234-49.
[1390] All the amendments "were designed to aggravate the
aversion which the populace had conceived for a measure that
appeared to them an attempt to deprive them of cheap and
convenient marriage, with a view to preserve the children of
the aristocracy from the misfortune of premature and imprudent
matrimony.... The main object of the bill was, in the first
instance, to abolish the law of matrimonial pre-contract
throughout the kingdom." Therefore Henry Fox, to render it
unsatisfactory to its promoters and "so ridiculous to the whole
country," managed to have Scotland exempted from the operation
of the law, although the suit which gave rise to the measure
originated there: JEAFFRESON, _op. cit._, II, 183 ff.;
_cf._ BURN, _Fleet Marriages_, 19.
In favor of the measure the notorious scandals and hardships caused
by clandestine contracts are dwelt upon. "How often," exclaims the
Attorney-General, "have we known a rich heiress carried off by a
man of low birth, or perhaps by an infamous sharper? What distress
some of our best families have been brought into, what ruin some
of their sons or daughters have been involved in, by such means,
every gentleman may from his own knowledge recollect."[1391] The
bill, it is urged, provides an effective remedy for the evil. This
remedy is publicity; and it can be secured only by making banns
or license, with parental consent, followed by a solemn public
celebration at the proper time and place, the absolute condition of
a valid marriage. The practical success of such a system is proved
by reference to Dutch experience. For the law of Holland is even
stricter than the proposed measure. "In Holland," says Mr. Bond, "a
regular proclamation of banns ... is so necessary, that a marriage
without it is absolutely void, without any decree or sentence of
any court for declaring it so;" and after publication the parties
must be "married in the church or chapel of the religion[1392] to
which they belong; neither of which can be dispensed with but by
the supreme court of Holland with respect to the nobility, or by
the supreme magistrate of their city with respect to the other
inhabitants; so that ... no license can be granted, either as to the
proclamation of banns, or as to not being married at church, by any
ecclesiastical court whatsoever."[1393] Nor does the state overstep
its proper authority when a marriage is rendered void for neglect
to observe its prescribed forms. No violence is thus done to the
"sanctity" of the marriage bond; for the canonical doctrine of the
sacramental or indissoluble nature of matrimony is not sustained by
an appeal either to history or to common-sense.[1394] "I think it is
ridiculous to say," declares one speaker, "that infants shall have
a power, when they come of age, to avoid and annul every contract
they made, while under age, without the consent of their parents
or guardians, and yet if without consent of father or mother, or
guardian, they dispose of themselves and every thing that belongs to
them in marriage whilst under age, they shall have no power to avoid
that contract when they come of age, let it be never so fraudulent,
pernicious or infamous. This is adding a sanctity to the marriage
contract, which is inconsistent with the good of every society, and
with the happiness of mankind in general."[1395]
[1391] COBBETT, _Par. Hist._, XV, 3. _Cf._ similar
expressions by Mr. Bond, _ibid._, 41 ff.
[1392] Mr. Bond appears in this statement to be somewhat in
error; for optional civil marriage existed in the Netherlands
since 1656: see p. 409, above.
[1393] Speech of Mr. Bond, in COBBETT, _op. cit._, XV,
43, 44. Townshend (_ibid._, 57, 58) replies to the argument
based on the laws of the Dutch. The people and the institutions
are very different from the English and therefore afford no
precedent. "In Holland not only every province but every town
is a sort of sovereignty within itself; and their religion,
especially with regard to marriage, is much the same as it was
in this country in the days of Oliver Cromwell, when neither the
marriage contract, nor the ceremony was supposed to have any
sanctity or religion in its nature." Then follows this delicious
bit of comparison: "The Dutch, sir, are naturally a cool,
patient people, and not given to sudden changes, either in their
tempers or passions; therefore the rendering a proclamation of
banns necessary may do very well in that country; but in this,
where the people are naturally sanguine, impatient, and as apt
to change as the air they breathe, I am convinced that such a
regulation would be the cause of numberless mischiefs."
[1394] Fox (COBBETT, _loc. cit._, 73) deprecates "making
so free with the laws of God and nature." See also Nugent
(_ibid._, 12-14) and Beckford (_ibid._, 82, 83). On the other
side, the Earl of Hillsborough asks whether even the "vulgar can
believe, that there is anything sacred in a ceremony performed in
a little room of an ale-house in the Fleet, and by a profligate
clergyman whom they see all in rags, swearing like a trooper and
higgling about what he is to have for his trouble, and half drunk
at the very time he is performing the ceremony."
[1395] Ryder, in COBBETT, _loc. cit._, 6, 7. _Cf._ the
speech of Lord Barrington, _ibid._, 27, 28, who thinks the state
as much justified in requiring that a marriage to be valid shall
depend upon the observance of certain prescribed forms, as it is
in demanding that a legally binding oath shall be taken before
duly authorized persons. These arguments are criticised by Nugent
(_ibid._, 22, 23) and by Beckford (_ibid._, 82, 83).
On the other side, every merit claimed for the bill by its friends
is changed into a fault. The evil of secret espousals is minimized
or even denied. Charles Townshend, whose argument is singularly
forced and superficial, boldly asserts that "clandestine marriages
cannot properly in themselves be called a public evil, and as
they are of different kinds, they ought to have a different
consideration." There are, he says, four varieties. Those that
are equal both as to rank and fortune "cannot be called a public
evil, because they are generally the most happy, and such as
parents ought to approve of, and would approve of, if not governed
by some whim or caprice.... As to those that are unequal with
respect to fortune, they are so far from being a public evil,
that they are a public benefit, because they serve to disperse
the wealth of the kingdom through the whole body of the people,
and to prevent the accumulating and monopolizing it into a few
hands; which is an advantage to every society, especially a free
and trading society. The same may be said of clandestine marriages
that are unequal both as to rank and fortune," for they are still
more leveling in their effects; as when "a lord of good estate"
marries "a taylor's or a shoemaker's daughter of good character,
though not worth a groat," or a "lady of quality, entitled to a
good estate," marries such a man's son who is honorable but poor.
Such marriages are a public blessing. "Nay I will go farther,"
he adds, "such marriages seldom, if ever, bring shame or misery
upon the contracting parties." Only the secret marriages which
are properly called "scandalous and infamous" are a public evil;
such as are entered into between a gentleman of character and an
abandoned woman, or between a reputable lady and "a notorious rogue
or common sharper." But "how rarely do such infamous marriages
happen, especially with respect to those under age."[1396] In fact,
throughout the argument of the opposition every change is rung on
the objection that the bill is aristocratic and plutocratic in its
motive. Elopement, even through the connivance of a Fleet parson,
is practically elevated into the chief security of democracy and
the necessary safety-valve of human passion. Should the bill pass
and the advantage of secretly contracting a valid marriage be thus
taken away, the nobility "will in a great measure secure all the
great heiresses in the kingdom to those of their own body. An old
miser, even of the lowest birth, is generally ambitious of having
his only daughter married to a lord, and a guardian has generally
some selfish view, or some interest to serve, by getting his rich
ward married to the eldest son of some duke, marquiss, or earl; so
that when a young commoner makes his addresses to a rich heiress,
he has no friend but his superior merit, and that little deity
called love," whose counsel, but for the proposed law, she may
harken to in tender youth, but whose influence over her decreases
"as she increases in years; for by the time she comes of age, pride
and ambition seize possession of her heart likewise;" so that as a
result hereafter, if the bill pass, "no commoner will ever marry a
rich heiress, unless his father be a minister of state, nor will a
peer's eldest son marry the daughter of a commoner, unless she be
a rich heiress."[1397] Furthermore, close intermarrying among the
rich and noble will cause degeneration. "What sort of breed their
offspring will be, we may easily judge: if the gout, the gravel,
the pox, and madness are always to wed together, what a hopeful
generation of quality and rich commoners shall we have amongst us."
Then, too, a social caste will be developed in England, such as the
distinction between _noblesse_ and _roturiers_ abroad, especially
in France, where the marriages of the "quality" are something like
those of "sovereign princes: the bride and bridegroom sometimes
have never seen one another, till they meet to be married;" hence
in that country gallantry has taken the place of "conjugal love and
fidelity."[1398] Nay, the sinister effects of the proposed measure
in this regard are not exhausted even by this dark prophecy. Coming
to the rescue, another ingenious logician shows conclusively that
through the increase of wealth, which means political power, the
lords, following the Venetian example, may overmaster the commons,
subvert the free constitution, and set up a despotic oligarchy in
its place.[1399]
[1396] Townshend, in COBBETT, _loc. cit._, 51-53.
[1397] The bill is to bring upon the people all these evils "that
my young lord, or the young rich squire, forsooth, may not be
induced to marry his mother's maid, or a neighbouring farmer's
daughter, who may probably make him a better wife and render him
more happy, than if he had married the richest heiress in the
kingdom; or that young miss may not run away with her father's
footman, who may make her a better husband, than any lord or
rich squire she, or even her father, could have chosen." Such
marriages "are rather an advantage than a prejudice to the
community."--Nugent, in COBBETT, _loc. cit._, 20; _cf._
Fox, _ibid._, 71.
[1398] Nugent, in COBBETT, _loc. cit._, 15, 16; _cf._
the similar argument of Fox, _ibid._, 68, 69.
[1399] Haldane, in COBBETT, _loc. cit._, 35-39; _cf._
Townshend, _ibid._, 61.
But the obstacles placed by the bill in the way of free wedlock
will have still other disastrous consequences. Marriage will be
discouraged among the lower orders, particularly the industrious
poor, while at the same time immorality through illicit unions will
be vastly increased. The state will thus suffer through the check
put upon the growth of its best population.[1400] For the bill not
only places tyrannical power in the hands of parents or guardians
by making their consent necessary to a valid marriage,[1401] but
passionate lovers even when of full age will not wait for the
publication of banns, while the poor will be unable to pay for a
license.[1402] The proposed law, according to Haldane, "will really
prove a sort of prohibition of marriage with respect to all our
poorer sort of people, because it will render the solemnization of
that ceremony so tedious and troublesome, or so expensive, that
many of them will chuse to live single, or agree to live together
without any marriage at all. We know how averse our people generally
are to a proclamation of banns, even in the present method, when
in any of our holiday weeks the whole may be performed, and the
loving couple made happy ... in three or four days; how much more
averse, then, will they be in this way of marrying, when they must
give a week's notice before the banns can be first proclaimed,
and after that must wait above three weeks before the proclamation
... can be finished and the marriage ceremony performed?" The
natural result will be the increase of sexual vice.[1403] Townshend
presents a similar argument, though some of his forebodings were
fully justified by future events. The bill instead of preventing
polygamy--by which he means bigamy--will encourage it; "for it
prescribes so many formalities for rendering a marriage good and
valid in law, that a cunning fellow will always take care to have
some of them omitted," so that he cannot be convicted of a breach
of the statute. Marriage will still be difficult of proof; and by
encouraging false promises of marriage the bill sets a cruel snare
for the feet of the innocent.[1404] "As the law now stands, if a
treacherous young fellow should refuse to perform such a promise,
the young woman who trusted to it may sue him in an ecclesiastical
court, where she may put him on his oath, and if he confesses the
promise, or she can otherwise prove it, he must either marry her, or
be imprisoned upon the writ _de excommunicato capiendo_." But under
the proposed act "she can have no relief: the statute of frauds and
perjuries will be a bar to her action at common law, unless she has
been so cautious as to take a promise in writing; even then, if he
was under age, his nonage will be a bar to her action; and suppose
him of age"--and here the distinguished member of the House of
Commons takes a tone which like a flash reveals the political torpor
of the English people and of the Whig oligarchy of George II.--"she
must submit to have a price put upon her honor and virtue by a jury
of tradesmen, few of whom are accustomed to deal in that commodity."
But, with Colonel Haldane, he believes, of all the evil consequences
of the act "that of preventing marriage and promoting fornication
among our industrious poor will be most pernicious."[1405] Yet how
simple would be the proper remedy[1406] for the defects of the
present marriage laws!
[1400] This argument is also used by a writer in the _Monthly
Review_, XL, 425, 426, who makes a violent attack on the bill:
"Sir Robert Walpole" is declared to be "the first fool of a
statesman who thought a kingdom might be too populous" (426).
Mr. Nugent, in the Commons, appears to think that increase of
population among the poor must be promoted at all hazards. Even
the judicially enforced marriages between wenches and their
reluctant seducers are blessings which he fears the bill will
put an end to: COBBETT, _op. cit._, XV, 18. With these
conceits of the opposition compare the sound views of the Earl of
Hillsborough (_ibid._, 63): "Poor servants and labourers ... are
but too apt to run into matrimony, before they have considered
how they are to support either themselves or their children ...;
for the prosperity and happiness of a country does not depend
upon having a great number of children born, but upon having
always a great number well brought up, and inured from their
infancy to labour and industry." Essentially modern opinions
are likewise expressed by Mr. Bond: "For as to those rash and
inconsiderate marriages ... between two poor creatures, sometimes
before they have got clothes to their backs" or a lodging or
means of support, "I think they ought all, if it were possible,
to be prevented." Fleet marriages, he believes, have propagated
"beggars, rogues, and the most abandoned sort of prostitutes;"
and he appeals to the stricter laws of Holland which have not
checked the growth of an industrious population: _ibid._, 46, 47.
[1401] A writer in the _Monthly Review_, XII, 115, speaks of the
"minor's inalienable right to marriage as the proper remedy for
chastity."
[1402] According to Mr. Haldane, banns are required by the bill
"in order to render licenses necessary; and the only use of a
license I take to be that of putting money into the pockets of
our clergymen or some of their officers."--COBBETT,
_op. cit._, XV, 40. On the too high cost of licenses _cf._
TOWNSHEND, _ibid._, 57, 58; and Fox, _ibid._, 70.
[1403] Haldane, in COBBETT, _loc. cit._, 39. He
continues: "In my opinion the certain consequence will be that
of rendering common whoring as frequent among the lower sort
of people, as it is now among those of the better sort; and
multitudes of wenches in all parts of the country, when they
find they cannot get husbands according to law, will set up the
trade; so that the Bill ought really to be called a Bill for the
increase of fornication in this kingdom."--_Ibid._, 39. _Cf._
the similar arguments of Nugent (_ibid._, 17, 18), Townshend
(_ibid._, 55, 58), Fox (_ibid._, 68-70), and Beckford (_ibid._,
80-82).
[1404] Compare the statements of Nugent, in COBBETT,
_loc. cit._, 21.
[1405] Townshend, in COBBETT, _loc. cit._, 55-58.
[1406] Banns and license are unnecessary; while clandestine
marriages of the "scandalous or infamous" variety are so
unimportant as to call for no legislation. Bigamy and the
hardships arising in difficulty of proof may be remedied, it
is alleged, by a law merely providing for proper registration
and making it a rule that the "legitimacy of children should
never be questioned, after the death of their parents who lived
together as husband and wife, and were generally reputed to be
so."--Townshend, in COBBETT, _loc. cit._, 49, 50. _Cf._
the similar plan of Haldane, _ibid._, 40, 41.
In concluding the summary of this debate, singularly illustrative of
the imaginary evils so often conjured up against reform measures,
the deep-seated prejudice of the English people to publicity in
matrimonial engagements should be noted. It seems that in 1753,
as well as in 1653 and 1836, the open procedure prescribed by the
law gave a certain shock to popular sentiment. "It is a peculiar
phenomenon," says Friedberg, "that the English nation, whose
whole political system is interpenetrated by the principle of
publicity, should look upon publicity in the formation of marriage
as positively improper; that it should regard the publication of
banns ... as an unjustifiable violation of modesty."[1407] In this
spirit Horace Walpole, ridiculing the Hardwicke act, writes to Hon.
Seymour Conway: "It is well you are married. How would my lady A----
have liked to be asked in a parish-church for three Sundays running?
I really believe she would have worn her weeds forever, rather
than have passed through so impudent a ceremony."[1408] According
to Mr. Nugent, "it is certain, that proclamation of banns and a
public marriage is against the genius and nature of our people; it
shocks the modesty of a young girl to have it proclaimed through
the parish, that she is going to be married; and a young fellow
does not like to be exposed so long beforehand to the jeers of all
his companions."[1409] In fact, without defending banns as an ideal
institution, one cannot help reflecting that the final triumph of
civil marriage has already done something to overcome the false
delicacy touching human sexual relations and responsibilities, whose
survival in modern society is nevertheless still a serious hindrance
to rational education.
[1407] FRIEDBERG, _Geschichte der Civilehe_, 20,15.
[1408] HORACE WALPOLE, _Letters_, II, 334-36;
COBBETT, _op. cit._, XV, 32, 33.
[1409] Nugent, in COBBETT, _loc. cit._, 19. _Cf._ the
extracts from the Report of the "Marriage Laws Commission,"
1868, in HAMMICK, _Marriage Law_, 354 ff., where the
inadequacy of banns and the popular dislike of them are mentioned.
By the statute of 1753,[1410] whose origin has now been considered,
all marriages, save those of Quakers and Jews or those of members
of the royal family, are to be celebrated only after publication
of banns or license, and only during the canonical hours[1411] in
an Anglican church or chapel where "banns of matrimony have been
usually published," and before an Anglican clergyman. To solemnize
marriage in any other manner or in any other place, or without
banns except by special license of the archbishop, is punished with
fourteen years' transportation, and the marriage is declared void.
Two or more witnesses must be present. The clergy are required
to keep registers, and the falsifying or destroying the same is
punished by death. In the case of banns the express consent of
parent or guardian for the marriage of minors is not required. Such
a marriage is legal when dissent has not been expressed.[1412]
But in the case of license the marriage of a minor--not being a
widow or a widower--without the consent of parent or guardian is
absolutely void.[1413] Furthermore, the act declares that persons
convicted of solemnizing "matrimony in prisons and other places
without publication of banns or license" shall be judged guilty of
felony and sentenced to fourteen years' transportation, while the
marriages so solemnized are absolutely null and void. Precontracts
are likewise abolished. "In no case whatsoever shall any suit or
proceeding be had in any ecclesiastical court in order to compel
a celebration of marriage _in facie ecclesiae_, by reason of any
contract ... whether _per verba de praesenti_ or _per verba de
futuro_."
[1410] The act of 26 Geo. II., c. 33. For the text, see
PICKERING'S _Statutes at Large_, XXI, 124-30;
EVANS, _Statutes_, I, 155-60. For analysis and
discussion of its provisions see BURN (R.),
_Ecclesiastical Laws_, II, 433; HAMMICK, _Marriage
Law_, 12-15; GEARY, _Marriage and Family Relations_,
9, 12-15; BURN (J. S.), _Parish Registers_,
32, 33; BLACKSTONE, _Commentaries_, I, 438,
440; IV, 163; LECKY, _Eng. in 18th Cent._, I,
531-40; _idem_, _Democracy and Liberty_, II, 174, 176
ff.; TASWELL-LANGMEAD, _Eng. Const. Hist._, 750;
CAMPBELL, _Chancellors_, VI, 262; MAY, _Const.
Hist._, II, 362; FRIEDBERG, _Geschichte der Civilehe_,
16, 17; _idem_, _Eheschliessung_, 355-58; OPPENHEIM,
"Ueber Einführung der Civil-Ehe in Eng.," _ZKR._, I, 9-11.
[1411] From 8 to 12 in the morning.
[1412] _Cf._ HAMMICK, _Marriage Law_, 13. Compare
SAYER, _A Vindication of the Power of Society to annull
the Marriages of Minors_ (1754), 2 ff., who answers the arguments
of STEBBING in the works mentioned in Bibliographical
Note X. This is important in tracing the rise of sound opinions
regarding the proper sphere of social control; and with it may
be read to advantage SALMON, _Critical Essay Concerning
Marriage_, 59 ff. On the ecclesiastical law as to consent to the
marriage of minors see POYNTER, _Doctrine and Practice
of the Ecc. Courts_, 29 ff.; and in this connection may also
be read COOKE, _Report of the Case of Horner against
Liddiard upon ... Consent nec. to the mar. of illegit. Minors_
(London, 1800).
[1413] The clause of the act providing for license is vigorously
attacked by FRY, _Considerations on the Act_, 7 ff.,
who declares that "it gives liberty (for a little money) to
revive Clandestine Marriages." On the spiritual law as to license
compare POYNTER, _Doctrine and Practice of the Ecc.
Courts_, 21 ff.
The general effect of the Hardwicke act was undoubtedly good.
Publicity was secured. "It destroyed the infamous trade of the Fleet
Prison and Mayfair parsons;[1414] it enforced a regular public
celebration after compliance with certain preliminary forms," and
it established the principle of parental consent "as evidenced by
oath in case of a license, and by the absence of any expression
of _dissent_ in the case of banns;" and "from this date verbal
contracts of matrimony ceased to have any binding effect in England;
solemnization could not be enforced, and damages for breach of
promise, recoverable by action, became the only relief in such
cases."[1415]
[1414] The act took effect on March 25, 1754; and between its
passage on June 6 and that date these parsons did a roaring good
business. The _Gentleman's Magazine_, XXIV, 141 (Sunday, March
24, 1754), has the following:
"Being the last day before the commencement of the marriage act
before 11 o'clock 45 couple were married at Mr. Keith's chapel,
and when they ceased, near 100 pair had been joined together; two
men being constantly and closely employed in filling up licenses
for that purpose." See Keith's appeal for charity, because
the act had reduced him "from a great Degree of Affluence" to
"such a deplorable state of misery in the Fleet Prison," in
ASHTON, _The Fleet_, 364, 365.
Clandestine contracts, however, were not entirely put an end to
by the Hardwicke act. In the Savoy chapel Dr. John Wilkinson
and his representatives solemnized many hundreds of marriages
contrary to the provisions of the law; but these were, of course,
absolutely void: JEAFFRESON, _Brides and Bridals_,
II, 192-202; BURN, _Fleet Marriages_, 139-41. Burn
is in error when he says (139) "there does not appear to have
been any clandestine marriages" at the Savoy "until after the
Marriage Act." Such a marriage took place there in 1596. Under
date of June 14, in that year, W. Monne, Master of the Savoy,
writes to Lord Cobham, whose grandchild and ward was a party to
this contract, that he has "conferred with Archb. of Canterbury
concerning Mr. Bigge, the chaplain of the Savoy who performed the
marriage. Bigge said he thought he might well do it because his
fellow chaplains were in the habit of marrying people without
license. Archb. committed Bigge to the Gate House pending
Cobham's pleasure, also ordered that 'no such disorderly marriage
shall be offensively in the Savoy performed.'"--_Reports of the
Hist. Manuscripts Commission_, V, 136, 139.
[1415] HAMMICK, _Marriage Law_, 13, 14; _cf._
GEARY, _Mar. and Fam. Rel._, 33.
III. THE PRESENT ENGLISH LAW
There were, however, serious defects in the act of 1753. It was
conceived in a spirit of bigoted intolerance toward Roman Catholics
and all dissenters--save only Jews and Quakers--who were thus forced
against their consciences to accept the rites of the established
church; and the law was far too rigid in matters of detail. The
harsh treatment of dissenters is all the more remarkable because
"their privileges were abridged" by the act; for previous to 1753
they had been at liberty to celebrate their marriages in their own
chapels, without submitting to the ritual of the "church."[1416]
It is significant that in the report of debates on the measure
collected in the _Parliamentary History_ not a single voice seems
to be raised in favor of the general principle of toleration;
though one ceases to be surprised by this fact when he remembers
the disfranchisement of non-conformists and considers the shameful
character of parliamentary representation which was then drawn
largely from rotten or pocket boroughs under the control of a
corrupt oligarchy.[1417] During more than fourscore years repeated
efforts were made in vain to gain relief for dissenters.[1418]
The Unitarians[1419] were particularly active in the struggle
for religious and civil liberty. The bill of 1826-27 introduced
by William Smith in their behalf is especially worthy of notice,
because in the committee it took the form of a provision for civil
marriage before a justice of the peace, leading to a very lively
discussion. The Marquis of Lansdowne defended the measure, not
merely in the interest of the dissenters who by the existing law
were forced to do violence to their consciences, but also in behalf
of the clergy of the established church who should be relieved of
the necessity of administering a religious rite for those receiving
it only under compulsion.[1420] On the other hand, the bill was
opposed, not only on the old ground of violating the sanctity
of matrimony, but also because the clergy, by being required to
proclaim the banns in such cases and to certify the same to the
justice, would thus suffer humiliation; and for the reason that the
proposal smacked too much of the revolutionary ordinance of Oliver
Cromwell.[1421] Every attempt to gain justice for the dissenters
failed until finally a signal victory for civil institutions was won
in the epoch-making statute of 1836.
[1416] WALPOLE, _Hist. of Eng._, IV, 69.
[1417] _Cf._ GREEN, _Hist. of English People_, IV, 212,
124, 176 ff., 257; MAY, _Const. Hist._, I, 15 ff., 263
ff. By the Toleration Act of 1 Will. and Mary dissenters were
formally recognized and relieved from the pains and penalties
attaching to non-conformity; hence thereafter marriages
"according to their own forms and usages" were "treated as
marriages _de facto_." The Hardwicke act robbed them of this
privilege: HAMMICK, _Marriage Law_, 14.
[1418] In favor of the dissenters bills were introduced, either
in the Commons or in the Lords, in 1782 (HANSARD, _Par.
Debates_, 2d series, 1825, XII, 1236 ff.), 1819 (_ibid._, XL,
1200 ff., 1504 ff.), 1823 (_ibid._, IX, 967 ff.), 1834 ("Bills,
Public," 1834, II); and by Sir Robert Peel in 1835 ("Bills,
Public," 1835, III). A bill for registration of marriages,
births, and deaths was brought forward in 1834 ("Bills, Public,"
III); and already in 1833 a special committee to report on the
state of the parochial registers and the necessary legislation
was appointed by the Commons. This committee reported on Aug.
15 of the same year ("Reports, Committees," 1833, XIV). See
the history of the attempts to grant relief to dissenters by
OPPENHEIM, "Über Einführung der Civil-Ehe in England,"
_ZKR._, I, 8-33.
[1419] The Unitarians could not conscientiously make the
declaration of belief in the Trinity contained in the Anglican
marriage ritual: "I thee wed," etc., "in the name of the Father
and of the Son and of the Holy Ghost": WALPOLE, _Hist.
of England_, IV, 69-71, who discusses the efforts of William
Smith and Lansdowne in their behalf.
[1420] The same argument is advanced by a writer in the
_Quarterly Review_, LI (1834), 493 ff., 513, 514.
[1421] OPPENHEIM, _op. cit._, 13-17: "Bills, Public,"
1826-27, II. _Cf._ also WALPOLE, _Hist. of Eng._,
IV, 70, 71. GRIFFIN-STONESTREET, _Nuptiae Sacrae:
Objections to the Amended Unitarian Marriage Bill_ (London,
1828), is especially bigoted in his opposition, holding that
the sanctity of matrimony will be violated; that the magistrate
will have religious functions thrust upon him; and concludes
with the remark (38) that "it is no recommendation of this
measure, that it is in many parts a mere transcript of OLIVER
CROMWELL'S method of putting down the offices of the
Church by the Act of 1656." On the other hand, "A Presbyter
of the Church of England," who objects to allowing "Socinian
ministers" a share in the solemnization of marriages, admits that
there is a real grievance and recommends the "alternative of a
marriage before a civil magistrate, according to certain civil
forms." To provide a model (31-37), he reprints the whole of
Cromwell's ordinance of 1653. The measure is opposed in a spirit
of intolerance by LE GEYT, _Observations on the Bill_
(London, 1827).
The long struggle to remedy the formal defects of the Hardwicke act
met with somewhat earlier success. Much injustice and inconvenience
grew out of the provision that banns must be proclaimed in churches
or chapels where hitherto they had "usually been published." A
stop was thus put to legal celebration in many places, especially
in London; and "it was found that even St. Paul's Cathedral
and Westminster Abbey were included in this prohibition, as
no publication of banns had ever taken place in them."[1422]
Accordingly in 1781 a marriage solemnized in Buerlyhill Chapel,
"erected in 1765 and then duly consecrated, and in which divine
service had been publicly and regularly celebrated ever since, and
wherein banns of marriage had been often published and marriages
celebrated previous to the marriage in question," was annulled by
the court of King's Bench.[1423] An act was immediately passed
to validate such marriages already solemnized;[1424] and this was
followed by various other statutes to legalize later marriages of
the same kind.[1425] More serious were the consequences of the
clause making the express consent of parent or guardian in case
of license absolutely essential to the valid marriage of minors.
Through disregard of this provision, and for various other trivial
deviations from the letter of the statute, many harsh cases of
injustice arose. "A man was enabled to marry a woman solemnly in the
face of the church, to live with her and acknowledge her publicly as
his wife, and have issue by her,--and 25 years afterwards to bring
a suit for annulling the marriage, on the ground that he himself
had falsely and fraudulently sworn, in order to obtain the license,
that she was 21 years of age, when she was in fact two months
younger."[1426] In another case,[1427] "where a father had gone to
America and was supposed dead, and the mother had given her consent,
but the father had no knowledge of the marriage, it was declared
void after eighteen years' cohabitation;"[1428] for the father's
consent, if living, was absolutely necessary. Nullity was even
declared in one instance[1429] "because the testamentary guardians
who had consented were appointed by a will which turned out to be
invalid because attested by only one witness."[1430]
[1422] BURN, _Parish Registers_, 146; _cf._
GEARY, _Mar. and Fam. Rel._, 60, 61.
[1423] Rex _v._ Northfield (1781), 2 Douglas, 658;
GEARY, _loc. cit._; BURN, _op. cit._, 32 n. 2.
[1424] 21 Geo. III., c. 53: _Statutes at Large_, VIII, 83. In
the debate on the bill for this act Mr. Charles James Fox, "who
appears," says Burn, "to have possessed an hereditary opposition
to the Marriage Act of 1753," declared "that all persons who
had solemnized marriages in any of these new chapels were at
present liable to _transportation_. Under danger of that penalty
stood ... a vast number of clergymen, and some prelates in
the Upper House; but as America would not receive them, they
must go to the _Justitia Hulk_, which to be sure would be a
terrible thing, and he hoped the house would interfere to save
these reverend, and right reverend gentlemen from so horrible
a fate. It was an absolute fact that several, if not all, of
the Bishops had transgressed in this way; and by the bye, the
House might have the mortification to see Bishops in their lawn
sleeves, instead of preaching the word, heaving ballast on the
Thames."--BURN, _op. cit._, 32, 33, note.
[1425] 44 Geo. III., c. 77; 48 Geo. III., c. 127; 11 Geo.
IV. (1830), c. 18. The statute of 6 Geo. IV., unlike all the
preceding, validated future marriages in churches or chapels
erected since 26 Geo. II., c. 33: GEARY, _op. cit._, 61.
[1426] HAMMICK, _Marriage Law_, 14, note, citing
SIR JOHN STODDART'S _Letter to Lord Brougham on the
Irish Marriage Cases_ (1844), who says, referring to the facts
mentioned in the text, "that was in the case of Hewett _v._
Bratcher (1809), in which I was counsel before the High Court of
Delegates; and that court decided that agreeably to the Act of
1753, then in force, a marriage must, under such circumstances,
be annulled." Compare also the similar case of Johnson _v._
Parker (1819), 3 Phillim., 39, where "the husband obtained a
declaration of nullity because he was about six weeks under age
at the date of the marriage, although he had himself sworn on
applying for the licence that he was of age."--GEARY,
_op. cit._, 15. Other cases are mentioned in HANSARD,
_Par. Debates_, XXXIX, 1466; XLI, 1445 (1st series).
[1427] Hayes _v._ Watts (1819), 3 Phillim., 43.
[1428] GEARY, _op. cit._, 14, 15.
[1429] Reddall _v._ Leddiard (1820), 3 Phillim., 256. This case
and others are discussed by PHILLIMORE, _Speech on the
Marriage Act_, 23-45, an able exposition of the evils arising
under the Hardwicke act.
[1430] GEARY, _op. cit._, 15, note.
At length, after the nullification of marriage on technical or
trivial grounds had become a "public scandal" and an intolerable
hardship to individuals,[1431] a remedy was found in the act of 4
George IV., c. 76, by which so much of the Hardwicke act as had
not already been superseded[1432] was repealed; and new and juster
rules were substituted.[1433] But this statute, whose more important
provisions will hereafter appear, gave no relief to Roman Catholics
or dissenters. To effect this, after various futile attempts, the
civil-marriage law of 1836 was enacted,[1434] simultaneously with
another creating a new system of registration.[1435] These three
measures, with a few later modifications or additions, constitute
the present law of England relating to the celebration and
registration of marriages. An analysis of their leading provisions
will now be presented.[1436]
[1431] Compare GEARY, _op. cit._, 15.
[1432] In the preceding year, by 3 Geo. IV., c. 75, the provision
of the Hardwicke act invalidating marriage of minors by license
without consent, and some other defects, were remedied; but
the eighth and following sections of the law prescribing more
"stringent regulations to prevent clandestine marriage by
licence," were repealed by 4 Geo. IV., c. 17, which enacted
that "licences should be granted in the case of minors as
under Lord Hardwicke's act": _cf._ HAMMICK, _Marriage
Law_, 15, note; HANSARD, _Debates_, 2d series, VII,
702, 1635 (Commons); 1128, 1143, 1198, 1373, 1452 (Lords); and
PHILLIMORE, _Speech on the Marriage Act_, 45 ff.
[1433] The act of 4 Geo. IV., c. 76, may be found in
HAMMICK, _op. cit._, 269-80; and BURN,
_Ecclesiastical Laws_, II, 433_d-h_; as also in the _Statutes
at Large_ for that year. _Cf._ HANSARD, _Debates_,
2d series, VIII, 80, 87, 123, 235, 623; IX, 540, 649; _Annual
Register_, LXV, 89-93.
[1434] 6 and 7 Will. IV., c. 85: _Statutes at Large_, 510-25;
BURN, _op. cit._, II, 433_u_ ff.; Hammick, _op. cit._,
282-96.
[1435] 6 and 7 Will. IV., c. 86: _Statutes at Large_, 526-44;
HAMMICK, _op. cit._, 297-306.
[1436] For the debates on the acts of Will. IV. see
HANSARD, _Debates_, 3d series, XXXI, 367-86; XXXII,
1093; XXXIV, 490-94, 539, 1021-39, 1309. _Cf._ the _Quarterly
Review_, LVII, 248-53, for an article praising the conservative
course of the Lords.
It will be convenient first to notice the main features of the
system of registration.[1437] For the entire kingdom is appointed
by the lord treasurer and the lords commissioners of the treasury
a registrar-general whose office is in London and Westminster.
Below the general registrar of births, deaths, and marriages are
the "superintendent registrars," one in each union or parish,
appointed by the Board of Guardians of the Poor; or, in default of
such appointment, they may be nominated by the general registrar.
The post is usually filled, however, by the clerk of the Board of
Guardians. Below the superintendent registrars are the registrars of
the districts. These are of two kinds: the registrar of births and
deaths, appointed in the same way as the superintendent registrars;
and the registrars of marriages, nominated by the superintendent of
the union subject to the approval of the guardians,[1438] or of the
registrar-general, as provided by a later act.[1439]
[1437] For summary and discussion of the registration laws
see BOHN, _Political Cyclopædia_, IV, 625-28;
SMITH, _The Parish_, 187-89, 457-60; FRIEDBERG,
_Eheschliessung_, 413-19; ROBERTSON, in _Britannica_,
XV, 566; HAMMICK, _Marriage Law_, 106 ff., 166-90,
_passim_; GEARY, _Mar. and Fam. Rel._, 133-37, _passim_
as per index; MOORE, _How to be Married_, 60 ff.;
ERNST, _Treatise of Mar. and Div._, 10 ff.
[1438] The appointment of the district registrars of marriages is
provided for, not by the registration act, but by the marriage
act of 6 and 7 Will. IV., c. 85, sec. 17.
[1439] By 19 and 20 Vict., c. 119, sec. 15; HAMMICK,
_op. cit._, 327.
Co-ordinate with the civil registrars of marriages for the district
are the ministers of the Church of England, and the ministers or
accredited officers of other denominations, each of whom is required
every quarter to transmit abstracts of all registrations to the
superintendent, who, in his turn, reports to the registrar-general.
The division of the union into districts, which usually correspond
to the parishes, is the duty of the guardians, subject to the
approval of the registrar-general.
Marriage within the Church of England is regulated by the statute of
4 George IV., c. 76, and may be solemnized in the parish church or a
chapel licensed by the bishop,[1440] after publication of banns for
three successive Sundays at morning service; or on production of the
certificate of a superintendent registrar, which is equivalent to
banns.[1441] Parent or guardian may forbid the marriage of minors,
but in case of banns express consent is not required. License in
place of banns may be granted by the archbishop, bishop, or other
authority, but only for solemnization within the church of the
parish in which one of the parties has resided "for the space of
fifteen days preceding." Before "a licence can be granted an oath
must be taken as to the fact of residence;" that there is no legal
impediment; and that the consent of parent or guardian has been
obtained, if either of the parties is under twenty-one years of
age.[1442] The "marriage must be celebrated within three months
after banns or licence, and between the hours[1443] of eight and
twelve in the morning."[1444] Care is taken to avoid the hardships
arising from the rigidness of the Hardwicke act. "The penalty of
nullity" is "confined to the case of persons wilfully procuring
the celebration of marriage without due publication of banns, or
without a licence from a person having authority to grant the
same, or by any person not in holy orders, or elsewhere than in a
church or chapel wherein banns" may "be lawfully published." The
want of consent of parent or guardian, in case of minors, does not
invalidate a marriage by license; but "in the event of any fraud
practiced to procure the contract, the guilty party" forfeits "all
property accruing from the marriage."[1445]
[1440] "With the consent of the patron and the incumbent."--4
Geo. IV., c. 76, sec. 3: HAMMICK, _op. cit._, 270. See
further details as to the places licensed, in 6 and 7 Will. IV.,
c. 85, secs. 26 ff.
[1441] By 6 and 7 Will. IV., c. 85, sec. 1. But by 19 and 20
Vict., c. 119, sec. 11, celebration by a clergyman of the Church
of England on certificate of the superintendent registrar is not
obligatory: _cf._ HAMMICK, _op. cit._, 87, 282, 313;
GEARY, _Mar. and Fam. Rel._, 58, 80, 85, 88, 94.
"In the year 1884, out of 144,344 marriages according to the
rites of the Established Church, 128,107, or 89 per cent.,
were by banns, 12,188, or 8.5 per cent., by ordinary licence,
68, or .05 per cent., by special licence (of the archbishop),
and 3,523, or 2.4 per cent., on superintendent registrar's
certificate."--HAMMICK, _op. cit._, 63, note. In 1889,
698 marriages in every 1,000 were according to the rites of the
English church; and of these only sixteen were by certificate:
GEARY, _op. cit._, 58, note. See the discussion and the
tables of statistics of marriages, 1841-88, in MOORE,
_How to be Married_, 111-17, 166, 167.
[1442] See the form of oath in GEARY, _op. cit._, 49
n. 3; and MOORE, _op. cit._, 120, who gives all the
marriage forms. If the "defendant swears falsely it is not
perjury, and only misdemeanour" (Regina _v._ Chapman, 1849, I
Den., 432); and "the spiritual Court has no jurisdiction to
punish such false oath" (Phillimore _v._ Machon, 1876, 1 P. D.,
481); GEARY, _op. cit._, 49, 50.
[1443] Now between the hours of 8 in the forenoon and 3 in the
afternoon: By 49 and 50 Vict., c. 14: HAMMICK, _Marriage
Law_, 341.
[1444] Compare the clear summary of ROBERTSON, in
_Britannica_, XV, 566; BURN, _Ecc. Laws_, II, 433_f-h_;
MOORE, _How to be Married_, 1-23.
[1445] HAMMICK'S summary in _Marriage Law_, 15.
The institution of banns, as already seen, is the ancient device
of the church to secure publicity.[1446] During the ages it has
served a useful purpose, though from its very nature, even under
the most stringent regulations, it is capable of serious abuse. But
there are unmistakable signs that it has about run its course and
must soon yield to more effective methods, such as those prescribed
by the civil-marriage act. The "unsuitableness of banns to the
present state of society," remarks Mr. Hammick, appears as early as
1868 in the report of the Marriage Law Commissioners,[1447] They
say that "in populous places it seems universally agreed that no
real publicity is obtained by banns, which afford no safe-guard
against improvidence, illegality, or fraud, and are frequently,
from their great number, an inconvenient and unseemly interruption
to divine service." The old sentiment against publicity is a strong
motive for evasion. "The evidence which we have received," add
the commissioners, "abundantly proves that the dislike of this
mode of publication tends to promote clandestinity rather than
to prevent it, by inducing many persons to resort for marriage
to places where they are unknown."[1448] Nor does the testimony
against the efficiency of banns come from lay sources alone. The
bishop of Durham, in this same report, declares that "at present
there is no punishment to any party making a false statement"
in order to have banns published in a parish where he does not
reside; "whilst it is quite impossible for the clergyman, who is
now by law punishable for celebrating such marriages, to ascertain
the falsehood of such statements, as his time, if his parish be
large, is entirely occupied by his other necessary duties." Hence
he believes that it would be "advantageous to assimilate the law
to that which regulates the notice of banns at the registry, and
to make a false statement in either case perjury."[1449] In like
spirit the bishop of Ely refers to the difficulty of the clergyman's
making suitable examination. "All such inquiries," he says, "are
inevitably left to the parish clerk, whose interest it is to inquire
as little as possible. Hence, if any persons desire to contract
an illegal marriage, they choose one of the populous parishes of
our large towns, where they readily escape notice."[1450] The
uselessness of banns in such places is further made very clear
"not only by ninety-nine couples being asked on one Sunday at St.
Pancras, but also by 189 couples being asked in the cathedral
church at Manchester on the 11th December, 1864, and 202 couples
on the 10th December, 1865," while on this last-named day at St.
Mary's, Lambeth, the banns of 125 couples were published. In many
of these cases, merely the names were mentioned, "unaccompanied
by any announcement of condition--whether bachelors, widows," or
spinsters.[1451]
[1446] Above, chap. viii, sec. iv, pp. 359 ff.
[1447] HAMMICK, _op. cit._, 65. _Cf. Report of the
Royal Commission, 1868_, 53-58, 34, 36-38, for the responses of
various lay and ecclesiastical persons.
[1448] _Report_, xlii; in HAMMICK, _op. cit._, 65, note.
[1449] REV. S. C. WILKS, in his _Banns, a Railroad
to Clandestine Marriages_ (1864), proposed "a simple form
of declaration, to be incorporated with the Banns Book":
HAMMICK, _op. cit._, 66, note.
[1450] From suggestions made to the Marriage Law Commissioners,
and published in their _Report_, 1868: in HAMMICK, _op.
cit._, 354-62.
[1451] Suggestion of Major Graham, late Registrar General, in the
commissioners' _Report_: HAMMICK, _op. cit._, 356:
"Without proposing that banns should be prohibited, the
commissioners recommend that the publication should not be
required by law as a condition either of the lawfulness or of
the regularity of marriage, being of opinion that 'every useful
purpose which can be answered by the publication of banns in
the Established Church may be equally answered by the mere fact
of notice to the officiating minister.'"--HAMMICK,
_op. cit._, 65. In general, on the present law of banns, see
_ibid._, 62-80; ERNST, _Treatise of Mar. and Div._, 8;
GEARY, _Mar. and Fam. Rel._, 37-46, where the judicial
decisions are cited; and MOORE, _How to be Married_, 1
ff.
The civil-marriage act of 1836 owes its adoption mainly to the
influence and exertion of Lord John Russell, by whom it was
proposed. In a measure, however, the way had been cleared for it by
the bill of the preceding year introduced by Sir Robert Peel. This
was received in a spirit of conciliation and compromise, showing
that the period of harsh intolerance was fast approaching its
end.[1452] The bill failed of passage, mainly because as a half-way
measure it did not satisfy the non-conformists. For it permitted the
civil form of marriage only to those declaring their unwillingness
to accept the established rites; and thus, it was asserted, a stigma
would be put upon the dissenters to whom matrimony was not less holy
than it was to the adherents of the English church.[1453] Moreover,
the magistrate of the hundred before the marriage was solemnized
was required to send the certificate to the clergyman of the parish
for registration.[1454] But it is highly significant that in the
debate proposals were made involving the essential elements of the
two great measures of the next year. A system of civil registration
of births, deaths, and marriages was suggested; while it was urged,
either that the civil form of solemnization should be made optional
for all, not merely restricted to non-conformists; or else it should
be made obligatory for all, leaving it free to the parties in every
case, after the lay ceremony, to avail themselves of the rites of
their own religious body.[1455]
[1452] On asking leave to present the bill, March 17, 1834,
Sir Robert Peel delivered an elaborate speech explaining the
need of reform and giving a history of the attempts to remedy
the hardships arising from the existing marriage laws since
1753. His speech was well received by all parties: see the
summary of Peel's speech and of the debate on the bill in
OPPENHEIM, in _ZKR._, I, 19-33. In general on the
struggle for relief of dissenters see MAY, _Const.
Hist._, II, 362-64, 392-95; FRIEDBERG, _Eheschliessung_,
391-401; FISCHEL, _Eng. Const._ (London, 1863), 84.
[1453] Lord John Russell's speech: OPPENHEIM, in _ZKR._,
I, 34; _cf. ibid._, 31; and BEARD, _Notes on Lord
John Russell's Mar. Bill_ (London, 1834), demanding full civil
marriage for dissenters, not mere "relief" through the Church of
England.
[1454] MOLESWORTH, _Hist. of Eng._, I, 339;
WALPOLE, _Hist. of Eng._, IV, 71, 72.
[1455] OPPENHEIM, in _ZKR._, I, 31, 32. The bill was not
satisfactory to Lord John Russell; hence it was dropped when he
superseded Peel as prime minister.
Nevertheless the act of 1836 was adopted only after a prolonged
contest in the House of Commons.[1456] By this statute the religious
celebration prescribed by the Anglican rubric is preserved, and two
additional methods of procedure are created: (1) by certificate
of the superintendent registrar without license; (2) or by such
certificate with a license.
[1456] For a contemporary account of the debate on the
bill see the _Annual Register_, LXXVIII, 122-34; a
summary by OPPENHEIM, in _ZKR._, I, 33 ff.;
also MOLESWORTH, _Hist. of Eng._, I, 386-88;
WALPOLE, _Hist. of Eng._, IV, 69-73. See
HANSARD, _Debates_, as cited above.
When procedure is by the first method,[1457] notice must be given
"to the superintendent registrar of the district within which the
parties shall have dwelt for not less than seven days" previous.
This notice is then entered in a marriage notice book "open at all
reasonable times without fee to all persons desirous of inspecting
the same;" and thereafter for twenty-one days the notice or a true
copy is to be suspended or affixed "in some conspicuous place
in the office" of the superintendent.[1458] "In the body or at
the foot" of the notice a "solemn declaration" as to residence,
necessary consent, and the absence of impediment of any kind must
be subscribed by one of the parties.[1459] After twenty-one
days,[1460] if no valid objection be filed by parents or others,
a certificate is issued by the superintendent, and the marriage
may be celebrated at any time within three months of the entry of
the notice.[1461] After issuing the certificate the marriage may
be celebrated in either of the following forms: (1) Before the
superintendent registrar, in the presence of a district registrar
and two witnesses--a mere declaration of assent and no religious
rites whatever being required. (2) In any registered building by
a minister of any sect according to the religious rites of the
same. Here also the registrar of the district and two witnesses
must be present. (3) According to the rites of the Jews and Quakers
in duly certified buildings. A building may be registered by the
superintendent registrar on receipt of a written petition from "any
proprietor or trustee," accompanied by a certificate signed in
duplicate by twenty householders at the least, that such building
has been used by them during one year at the least as their usual
place of public worship and that they are desirous that the place
shall be registered.[1462] (4) Marriages may also be solemnized by
certificate in lieu of banns in an Anglican church or chapel, if the
consent of the minister be obtained.[1463] In all cases the place of
marriage must be mentioned in the certificate, and the celebration
must occur between the hours of 8 in the forenoon and 3 in the
afternoon.[1464]
[1457] On marriage by certificate without license see
MOORE, _How to be Married_, 60 ff.; GEARY,
_Mar. and Fam. Rel._, 80 ff., 85 ff.; HAMMICK, _Marriage
Law_, 118 ff., 127 ff.
[1458] By 19 and 20 Vict., c. 119, secs. 3-5.
[1459] By 19 and 20 Vict., c. 119, sec. 2. _Cf._
ROBERTSON, in _Britannica_, XV, 566; BURN,
_Eccl. Laws_, II, 433 _x-y_; HAMMICK, _Marriage Law_, 89
ff., 319, 320; GEARY, _Mar. and Fam. Rel._, 80-85.
[1460] In the interval the notice was originally to be read
by the clerk of the Board of Guardians at their sessions for
three successive weeks: FRIEDBERG, _Eheschliessung_,
416; BURN, _Eccl. Laws_, II, 433_y_. This provision is
repealed by 19 and 20 Vict., c. 119.
[1461] _Cf._ 19 and 20 Vict., c. 119, sec. 4. The form of
certificate is given by HAMMICK, _Marriage Law_, 333,
334; MOORE, _How to be Married_, 148. All the forms are
given by MOORE, _ibid._, 120-63.
[1462] 6 and 7 Will. IV., c. 85, sec. 18. _Cf._ BURN,
_Eccl. Laws_, II, 433_bb._; BOHN, _Pol. Cyc._, III, 329;
FRIEDBERG, _op. cit._, 413-15; HAMMICK, _op.
cit._, 118 ff., 122 ff.
[1463] BURN, _Eccl. Laws_, II, 433_x_;
ROBERTSON, in _Britannica_, XV, 567; FRIEDBERG,
_op. cit._, 416; BOHN, _op. cit._, III, 322.
[1464] Between 8 and 12 in the forenoon by 6 and 7 Will. IV., c.
85, sec. 20. This was changed by 49 and 50 Vict., c. 14, sec. 1.
If the parties wish to avoid delay and so great publicity, they
may proceed by the superintendent's certificate and license. These
may be obtained on one[1465] full day's notice to the registrar of
"the district in which one of the persons resides, together with a
declaration that he or she has resided for fifteen days therein,
that there is no impediment, and that the necessary consents if any
have been obtained. The notice is not exhibited in the registrar's
office."[1466] After obtaining the license, the marriage may be
celebrated in either of the first three modes above mentioned; but
no superintendent's license may be issued for a marriage according
to the forms of the English church, that right being still an
"ecclesiastical monopoly." Any person guilty of wilfully making any
false statement in procuring certificate or license is liable to
the penalties of perjury;[1467] and if any persons "knowingly and
willfully intermarry," in any place other than that mentioned in the
certificate or without notice, certificate, or license, as required
by law, or in the absence of the registrar where his presence is
required, their marriage, except in certain specified cases, is null
and void.[1468] False statements as to consent subjects the offender
to the penalties of perjury, but does not invalidate the marriage.
[1465] Original act said "seven days": BURN, _op. cit._,
II, 433_aa_, changed by 19 and 20 Vict., c. 119, sec. 9. _Cf._
GEARY, _Mar. and Fam. Rel._, 87; HAMMICK, _op.
cit._, 324.
[1466] ROBERTSON, in _Britannica_, XV, 567;
BURN, _op. cit._, II, 433_z-bb_.
[1467] Re-enacted by 19 and 20 Vict., c. 119, sec. 18.
[1468] By 6 and 7 Will. IV., c. 85, sec. 42. _Cf._ BOHN,
_Pol. Cyc._, III, 324; BURN, _op. cit._, II, 433_ii_;
HAMMICK, _op. cit._, 295.
As to the form of civil contract, it is only essential that
somewhere in the ceremony the following declarations be introduced.
Each of the parties must say:
"I do solemnly declare, that I know not of any lawful impediment why
I, A. B., may not be joined in matrimony to C. D."
And each must say to the other:
"I call upon these witnesses here present to witness that I, A. B.,
do take thee, C. D., to be my lawful wedded wife (or husband)."[1469]
[1469] 6 and 7 Will. IV., c. 85, sec. 20. _Cf._ BURN,
_op. cit._, II, 433_cc_; BOHN, _op. cit._, III, 323;
HAMMICK, _op. cit._, 289, 145; MOORE, _How to
be Married_, 49.
Thus English marriage ends, as it began, in a simple contract;
but the state has succeeded in imposing upon it the condition of
publicity--a task which the church first attempted, but failed to
accomplish.[1470]
[1470] By the act of 7 and 8 Vict., c. 81 (1844), supplemented
by 34 Vict., c. 110, and 26 and 27 Vict., c. 27, the essential
features of 6 and 7 Will. IV., c. 85, were adopted for Ireland,
the proximate cause being the excitement aroused by the case
of the Queen _v._ Millis, 1843: see chap. vii, sec. ii, p.
316, above; and also HAMMICK, _Marriage Law_, 232-39;
GEARY, _Mar. and Fam. Rel._, 557 ff.
In Scotland except as restricted by 19 and 20 Vict., c. 96,
the principles of the canon law are still in force, "subject
only to such modifications as it has undergone from time to
time by the application of the rules of evidence established
in that country, and the course of judicial decisions"
(HAMMICK, _op. cit._, 221). But in 1856 by 19 and 20
Vict., c. 96, called Lord Brougham's Act, for a contract to
be valid, the parties must have resided in Scotland at least
twenty-one days preceding the ceremony. This put an end to
"Gretna Green" weddings, but otherwise private contracts are
still legal. Thus three kinds of marriages are recognized: (1)
"regular marriages" before a minister according to custom or
statute; (2) "irregular marriages" _per verba de praesenti_; (3)
"irregular marriages" _per verba de futuro, subsequente copula_;
but in this case the contract must be written or proved by
confession on oath: HAMMICK, _op. cit._, 221 ff. That
Scotch marriages are binding in England was established by the
celebrated judgment of Lord Stowell in Dalrymple _v._ Dalrymple
in 1811: DODSON, _A Report of the Judgment_, 1 ff.,
97 ff.; STEPHENS, _Laws of the Clergy_, I, 672, 688;
FRIEDBERG, _Eheschliessung_, 426, 427; KENT,
_Commentaries_, II, 87. In general, see GEARY, _op.
cit._, 531 ff.; FRIEDBERG, _op. cit._, 428, 437-59;
_idem_, _Geschichte der Civilehe_, 18 ff.; MOORE, _How
to be Married_, 85 ff.; ROBERTSON, in _Britannica_,
XV, 567; TEGG, _The Knot Tied_, 216-23 (Gretna Green);
JEAFFRESON, _Brides and Bridals_, II, 203-16 (Gretna
Green); GLASSON, _Histoire du droit et des inst._, VI,
162-69; WHARTON, _Laws Rel. to Women_, 265-98 (present
English law), 298-303 (Scotch law); STEPHENS, _Laws of
the Clergy_, I, 671-779; CARLIER, _Mar. aux États-Unis_,
41 ff.
* * * * *
Transcriber's note:
Minor typographical and punctuation errors have been corrected
without note. Irregularities and inconsistencies in the text have
been retained as printed.
Mismatched quotes are not fixed if it's not sufficiently clear where
the missing quote should be placed.
The cover for the eBook version of this book was created by the
transcriber and is placed in the public domain.
In the Table of Contents: III. The Evils of the Spiritual Jurisdiction
351-359"--350 was changed to 351.
Page 170: The closing quote is missing--'the custom "in accordance
with which every woman'
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