IV. RISE OF THE MARRIAGE CONTRACT

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.

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