a history of
Matrimonial Institutions

CHIEFLY IN ENGLAND AND THE UNITED STATES WITH AN INTRODUCTORY
ANALYSIS OF THE LITERATURE AND THE
THEORIES OF PRIMITIVE MARRIAGE
AND THE FAMILY

BY
GEORGE ELLIOTT HOWARD Ph.D.

PROFESSORIAL LECTURER IN THE UNIVERSITY OF CHICAGO AUTHOR OF "LOCAL
CONSTITUTIONAL HISTORY OF THE UNITED STATES"

VOLUME ONE

CHICAGO
THE UNIVERSITY OF CHICAGO PRESS
CALLAGHAN & COMPANY
————
LONDON
T. FISHER UNWIN, PATERNOSTER SQUARE
1904

Copyright 1904
The University of Chicago
————
Entered at Stationers' Hall

May, 1904

TO
Alice Frost Howard
HER HUSBAND DEDICATES THIS BOOK IN
GRATEFUL RECOGNITION OF HER
AID IN MAKING IT

PREFACE

It is an encouraging sign of advancing culture that history is gaining a deeper and broader meaning. We are really becoming interested, not merely in our political, but also in our entire biological, psychological, and social evolution. Although such phrase-making is nearly always misleading, there would perhaps be more truth in saying that "history is past sociology and sociology present history" than in Freeman's well-known epigram. In particular, the human family, with all that the word connotes, is commanding greater attention. Yet there is urgent need that its rise and social function should have far more earnest study than they now receive. The family and its cognate institutions ought to enter more fully into popular thought; and they should have much larger relative space in the educational program. From the home circle to the university seminar they are worthy to become a vital part of systematic social training. In the hope of aiding somewhat in winning for them due scientific recognition, this book is written. It seems not impossible that a sustained history of the matrimonial institutions of the English race in its "three homes" may prove a positive advantage, especially in gathering the materials and planning the work for more detailed investigations. Moreover, a thorough understanding of the social evolution of any people must rest upon the broader experience of mankind. Accordingly, in Part I the attempt is made to present a comprehensive and systematic analysis of the literature and the theories of primitive matrimonial institutions.

Preliminary reference to another portion of the book may perhaps be permitted. The anxious attention of the legal and social reformer is being especially directed to the character of our state legislation regarding marriage and divorce. To him, therefore, it is hoped, the last three chapters may prove helpful. Summaries of the statutes as they stood at particular dates have indeed appeared. The digest contained in the government Report is of great value for the time of its compilation; but no attempt seems ever to have been made to provide a systematic historical record. In these chapters—the result of several years' labor—the laws of all the states and territories enacted since the Revolution have been analyzed with some regard for details. No pains have been spared to gain accuracy; yet it would be rash to expect that the discussion is entirely free from error or oversight.

During the years devoted to this investigation I have profited by the generous assistance of many friends. They have aided me through references, information, copying, verifying, and in other ways. To all these I desire to convey my grateful thanks. In a few instances it is fitting that individual acknowledgment should be made. To Professor William Henry Hudson, of London, I am indebted for the examination of several rare books in the library of the British Museum. Bibliographical help has also been given by Professor Charles Richmond Henderson, of the University of Chicago. Special researches on my behalf have been conducted by Mr. Royall C. Victor and by Miss Lucile Eaves, head resident of the South Park Settlement, San Francisco. I have had the advantage of the expert aid of Mr. David M. Matteson in examining the manuscript records of the colonial and provincial courts of Suffolk and Middlesex counties, Massachusetts. To Professor Nathan Abbott, of Stanford University, Mr. James H. Deering, of the San Francisco Law Library, and Rev. Samuel W. Dike, secretary of the National League for the Protection of the Family, I am under obligations for information and suggestions. Special thanks are due to Professor Charles Gross, of Harvard, for encouragement in the work and various kind offices; as also to Mr. W. C. Lane and Mr. T. J. Kiernan, of the Harvard Library, for granting the most liberal use of the materials in their charge.

Finally I can but poorly express the gratitude which I owe to my wife, whose patient hand, faithful criticism, and wise counsel have never failed.

Chicago, March 19, 1904.

ANALYTICAL TABLE OF CONTENTS

VOLUME ONE

PART I

ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE MATRIMONIAL INSTITUTIONS

PART II

MATRIMONIAL INSTITUTIONS IN ENGLAND

VOLUME TWO

PART II—Continued

PART III

MATRIMONIAL INSTITUTIONS IN THE UNITED STATES

VOLUME THREE

PART III—Continued

PART I
ANALYSIS OF THE LITERATURE AND THE THEORIES
OF PRIMITIVE MATRIMONIAL INSTITUTIONS

CHAPTER I
THE PATRIARCHAL THEORY

[Bibliographical Note I.—The modern history of the patriarchal theory begins with Filmer's Patriarchia (London, 1680), in which the author finds in the Hebrew family a justification of the "divine prerogative" of kings; and the trenchant reply of Locke in The Two Treatises on Civil Government (London, 1690), reprinted with Filmer's work in the ninth volume of Morley's Universal Library. But the theory is especially associated with the name of Sir Henry Maine. His Ancient Law (New York, 1861), aside from its leading hypothesis, is one of the most suggestive books of the century. It was followed by the Early History of Institutions (New York, 1875); the Village Communities (New York, 1876); and Early Law and Custom (New York, 1883). In this last work he contributes supplementary chapters on such topics as "Ancestor-Worship" and "East European House Communities," and he replies to his critics. Maine is criticised by Spencer, Principles of Sociology (New York, 1879), Vol. I, Part III, chap. ix; and by McLennan, Patriarchal Theory (London, 1885), who, on the negative side, is fairly successful in confuting his adversary. Hearn's Aryan Household (London, 1879) and the Ancient City (Boston, 1877) of Fustel de Coulanges take practically the same view of primitive society as Maine, while particularly emphasizing ancestor-worship and the genealogical organization.

For the early Aryans and the Hindus see Zimmer's Alt-indisches Leben (Berlin, 1879); Delbrück's Die indogermanischen Verwandtschaftsnamen (Leipzig, 1885); Schrader's Sprachvergleichung und Urgeschichte (Jena, 1883), or the English translation by Jevons (London, 1890); Zmigrodski's Die Mutter bei den Völkern des arischen Stammes (Munich, 1886); and especially Leist's epoch-making works, Graeco-italische Rechtsgeschichte (Jena, 1884) and the Alt-arisches Jus Gentium (Jena, 1889). Of first-rate value also are the Rechtshistorische und rechtsvergleichende Forschungen (Part III, on Indisches Ehe- und Familienrecht) and the other papers of the indefatigable Kohler. Of these the following are particularly interesting in this connection, all found in the Zeitschrift für vergleichende Rechtswissenschaft: "Rechtsverhältnisse auf dem ostind. Archipel u. den westl. Karolinen," ZVR., VI, 344-50; "Gewohnheitsrechte des Pendschabs," ibid., VII, 161-239; "Indische Gewohnheitsrechte," ibid., VIII, 89-147, 262-73; "Gewohnheitsrechte von Bengalen," ibid., IX, 321-60; "Gewohnheitsrechte der Provinz Bombay," ibid., X, 64-142, 161-88; "Gewohnheitsrechte der ind. Nordwestprovinzen," ibid., XI, 161-95; and, for comparison, "Die Ionsage und Vaterrecht," ibid., V, 407-14; "Studien über künstliche Verwandtschaft," ibid., V, 415-40; and "Das Recht der Armenier," ibid., VII, 385-436. As in the last-named paper, the influence of Roman law may be traced in Mégavorian, Étude ethnographique et juridique sur la famille et le mariage arméniens (Paris, 1894). Hass, "Die Heirathsgebrāuche der alten Inder nach den Grihyasûtra," in Weber's Indische Studien, V, 267-412 (Berlin, 1862), reveals in an admirable way the religious spirit pervading the ancient Hindu matrimonial life. This study suggested the excellent monograph of Weber, "Vedische Hochzeitssprüche," ibid., V, 177-266; while the conclusions of both Haas and Weber are ably supported, with the aid of additional sources, by the more elaborate paper of Winternitz, "Das altindische Hochzeitsrituell," in Denkschriften der kais. Akad. d. Wiss., phil.-hist. Klasse, XL, 1-113 (Vienna, 1892). In this connection, for comparison, may be read Mackenzie, "An Account of the Marriage Ceremonies of the Hindus and Mahommedans as Practised in the Southern Peninsula of India," in Transactions of the Royal Asiatic Society, III (London, 1835); and Lushington, "On the Marriage Rites and Usages of the Jâts of Bharatpur," in Journal of the Asiatic Society of Bengal, II, 273-97 (Calcutta, 1833). Especially important are Bernhöft's "Die Grundlagen der Rechtsentwicklung bei den indogermanischen Völkern," in ZVR., II, 253-328; his "Altindisches Familienorganisation," ibid., IX, 1-45; and his "Das Gesetz von Gortyn," ibid., VI, 281-304, 430-40. A popular, but in the main uncritical, book is Clarisse Bader's La femme dans l'Inde antique (2d ed., Paris, 1867). Similar in plan and treatment are her La femme biblique (new ed., Paris, 1873); La femme grecque (2d ed., Paris, 1873); and La femme romaine (2d ed., Paris, 1877). A strong defense of the dignified position of the ancient Indic woman, based on the sources, may be found in Jacolliot's La femme dans l'Inde (Paris, 1877); and Mary Frances Billington is a vigorous champion of the social status of modern Woman in India (London, 1895). See also Pizzi, "Les coutumes nuptiales aux temps héroïques de l'Iran," in La Muséon, II, 3 (1883); Vidyasagar, On Widow-Marriages among the Hindus (Calcutta, 1855); and Schlagintweit, "Die Hindu-Wittwe in Indien," in Globus, XLIII (1883). Among the best technical writings are Mayne's Hindu Law and Usage (Madras and London, 1888); Jolly's Hindu Law of Partition (Calcutta, 1885); his Rechtliche Stellung der Frauen bei den alten Indern (Munich, 1876); Tupper's Punjab Customary Law (Calcutta, 1881); and Gooroodass's "The Hindu Law of Marriage and Stridahn," in Tagore Law Lectures, 1878 (Calcutta, 1879). Max Müller's series of Sacred Books contains Apastamba, Gautama, Visnu, and the other Sūtras, as well as the later versified law-books of Manu and Yājñavalkya, with other sources of ancient Indic custom. Burnell and Hopkins's Manu (London, 1891) is an excellent edition; and Jolly has a German translation of Books VIII and IX in ZVR., III, 232-83; IV, 321-61. For each important point these sources are thoroughly collated in the writings of Kohler, Leist, and Jolly, above referred to.

For the Slavs, Krauss's Sitte und Brauch der Südslaven (Vienna, 1885) is the most valuable treatise. See also Turner, Slavisches Familienrecht (Strassburg, 1874); and Kovalevsky's Modern Customs and Ancient Laws of Russia (London, 1891), in which the author criticises and corrects Sir Henry Maine on important points. For Greece, in addition to Leist's works above mentioned, see the paper of Campaux, Du mariage à Athènes (Paris, 1867); that of Moy, "La famille dans Homère," in Revue des cours littéraires, 8 mars 1869; Stegeren, De conditione civili feminarum atheniensium (Zwallae, 1839); Ouvré, Observations sur le régime matrimonial au temps d'Homère (Paris, 1886); Lasaulx, Zur Geschichte und Philosophie der Ehe bei den Griechen (Munich, 1852); especially Hruza's Die Ehebegründung nach attischem Rechte (Erlangen and Leipzig, 1892); and his Polygamie und Pellikat nach griechischem Rechte (Erlangen and Leipzig, 1894).

On the matrimonial institutions of the Romans consult Marquardt's Privatleben; Lange's Römische Alterthümer; Smith's Dictionary of Greek and Roman Antiquities; Müller's Handbuch; Bernhöft's Staat und Recht der rom. Königszeit (Stuttgart, 1882); Karlowa's Die Formen der röm. Ehe und Manus (Bonn, 1868); Rossbach's Die röm. Ehe (Stuttgart, 1853); his Römische Hochzeits- und Ehedenkmäler (Leipzig, 1871); Laband's "Rechtliche Stellung der Frauen im altröm. und germanischen Recht," in Zeitschrift für Völkerpsychologie, III (Berlin, 1865); and Bouchez-Leclercq's Manuel des inst. romaines (Paris, 1886). From the mass of writings which are of service for this and the four subsequent chapters may also be mentioned Brissonius, De ritu nuptiarum (Paris, 1564); his De jure connubiorum (Paris, 1564); Hotman, De veteri ritu nuptiarum observatio; his De sponsalibus; his De ritu nuptiarum et jure matrimoniorum—all published and bound with the two works of Brissonius (Leyden, 1641); Grupen, De uxore romana (Hannover, 1727); Ayrer, De jure connubiorum apud romanos (Göttingen, 1736); the anonymous Dei riti delle antiche nozze romane (Perugia, 1791); Maanen, De muliere in manu et in tutela (Lugd. Bat., 1823); Schultz, De jure succedendi feminarum apud romanos (Trajecti ad Rhenum, 1826); Chamblain, De la puissance paternelle chez les romains (Paris, 1829); Eggers, Wesen und Eigenthümlichkeiten der altröm. Ehe mit Manus (Altona, 1833); Mahlmann, De matrimonii veterum romanorum ineundi (Halle, 1845); Hase, De manu juris romani (Halle, 1847); Gerlach, De romanorum connubio (Halle, 1851); Dubief, Qualis fuerit familia romana tempore Plauti (Molini, 1859); Pagés, La famille romaine (Toulouse, 1892); Louïse, Du sénatus-consulte velléien et de l'incapacité de la femme mariée (Chateau-Thierry, 1873); Bourdin, De la condition de la mère en droit romain et en droit français (Paris, 1881); Salomon, Du mariage du droit des gens et en général des mariages sans connubium (Paris, 1889); Desminis, Die Eheschenkung nach röm. und insbesondere nach byzantinischem Recht (Athens, 1897); and Ciccotti, Donne e politica negli ultimi anni della republica romana (Milan, 1895). The criticisms of Kuntze, Excurse über röm. Recht (2d ed., Leipzig, 1880), and Esmein, Mélanges d'histoire du droit et de critique (Paris, 1886), are of great value on various important questions. Compare also Couch, "Woman in Early Roman Law," in Harvard Law Review, VIII (Cambridge, 1895); Picot, Du mariage romain, chrétien, et français (Paris, 1849); Monlezun, Condition civile de la femme mariée à Rome et en France (Paris, 1878); Tardieu, De la puissance paternelle en droit romain et en droit français (Paris, 1875); and Cornil, "Contribution à l'étude de la patria potestas," in Nouv. rev. hist. de droit, XXI, 416-85 (Paris, 1897). Gide's excellent Étude sur la condition privée de la femme (2d ed., Paris, 1885) deals with the laws of Greece, Rome, and other nations. Poste's edition of Gaius's Institutionum juris civilis commentarii quatuor (Oxford, 1875) is an indispensable source; and among legal treatises are particularly to be commended Muirhead's Introduction to the Private Law of Rome (Edinburgh, 1886); Puchta's Institutionen; Moyle's Institutionum Libri (Oxford, 1890); Rein, Privatrecht (Leipzig, 1836); and especially Sohm's Institutes (Oxford, 1892), by far the best work on the subject for historical purposes, showing the rare insight, clearness of analysis, and vigorous style peculiar to the author. Most readers will find the short Introduction of Hadley and the excellent Outlines of Professor Morey sufficient. For the general subject of marriage and the family the Zeitschrift für vergleichende Rechtswissenchaft (Stuttgart, 1878-96) is indispensable; while the Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft and the Zeitschrift für Ethnologie are also of constant service.

For the literature of Arabian and Hebrew matrimonial institutions, respectively, see Bibliographical Notes II and IV.

The student who has not yet seriously attacked the literature of the subject will do well to begin with the following: Tylor, "On a Method of Investigating the Development of Institutions, Applied to Laws of Marriage and Descent," in Journal of Anth. Inst., XVIII, No. 3; Bernhöft's "Zur Geschichte des europäischen Familienrechts," in ZVR., VIII, 1-27, 161-221, 384-405; in connection with his "Principien des europäischen Familienrechts," ibid., IX, 392-444; Friedrichs, "Familien-Stufen und Eheformen," ibid., X, 189-281; the first two chapters of Posada's Théories modernes (Paris, 1896); and the first three chapters of Botsford's Athenian Constitution (Boston, 1893), one of the ablest contributions to comparative institutions. This is supplemented by H. E. Seebohm's Structure of Greek Tribal Society (London and New York, 1895). For summaries of the results of investigations, from different points of view, Delbrück's "Das Mutterrecht bei den Indogermanen," in Preussische Jahrbücher, XCVII, 14-27 (Berlin, 1895), may be compared with Dargun's Mutterrecht und Vaterrecht (Leipzig, 1892), containing a criticism of the views of many recent writers.]

It is the primary purpose of this book to trace the development of the family and marriage in the "three homes" of the English race. An attempt is made to describe the mechanism provided by the state for the administration of matrimonial law; and to appreciate the importance of some of the many problems centering in the family as a social institution. Necessarily a theme so broad may here be treated only in outline. Yet in the outset it is the limitations of the subject which require to be most carefully noted. It is but a part of the wide field of family history which receives special attention. We are closely concerned with the forms of celebration and divorce as they existed among our Teutonic ancestors, and as they have since been molded by custom and legislation in England and the United States. Only in a secondary degree are we interested in the intricate law of the domestic relations. Except incidentally, we are not now called upon to consider the property rights of husband and wife, the laws of guardian and ward, or the rules of kinship and succession.

More pertinent is the general question of the genesis of human marriage and the human family.[1] It will be impossible, of course, to examine independently the many difficult problems which have arisen in this connection. Even the specialist may find it hard to trace a clear way through the bewildering maze of existing theory and sub-theory. It seems desirable, therefore, by way of introduction, to present as clearly and briefly as may be the more salient results of recent investigation. Marriage is a product of social experience. Hence to understand its modern aspects it is needful to appeal to the general sociological facts surrounding its origin and its early history among the races of mankind. It is necessary to get our bearings. At the dawn of history the Teutonic family was essentially monogamic, originating in a contractual relation. What, then, do we know as to the origin of the monogamic family and regarding the conditions under which marriage by contract arose? Part I will concern itself with the solution of this question.

The literature[2] of primitive marriage and the family is already formidable; and, however contradictory and discouraging, on first examination, its conclusions may appear, there can be little doubt that they demonstrate the possibilities of the comparative method[3] in the domain of social institutions. It is in this field, indeed, that evolutional science bids fair to achieve its most signal triumph. At last, in the laboratory of science, there is some prospect that man may come really to know himself. On the other hand, it is precisely in the study of primitive marriage that the "perils of historical narrative" are most clearly revealed.[4] Nowhere, perhaps, can there be found rasher inference[5] and more sweeping generalization from inadequate data. Too often economic and psychological laws have been slighted; and, in a field where their careful observance is so vitally important, the fundamental principles of organic evolution—such, for instance, as natural selection—have frequently been ignored.[6] A vast mass of interesting facts relating to man's social development, highly important for him to know, has been disclosed. But, with a few notable exceptions, the signal failure of investigators thus far has been the attempt to sustain theories of uniform social progress. The criticism, especially, to which the writings of Bachofen, Maine, Morgan, and McLennan have given rise has greatly weakened the faith of scholars in the doctrine of universal stages of evolution through which all mankind has run.[7]

I. STATEMENT OF THE THEORY

Students of comparative institutions have generally regarded the family as the unit or germ from which the higher forms of social organism have been evolved. A German scholar declares that among all the races of antiquity "the constitution of the family was the basis and prototype of the constitution of the state."[8] The same theory is clearly set forth and the process of political expansion carefully described by Plato and also by Aristotle,[9] who base it upon their own observation both among "Hellenes and barbarians," and each illustrates it by reference to the Cyclops of Homer.[10] It is not wholly improbable, as will presently appear, that the family in some form must be accepted as the initial society, possibly among all the races of mankind. At a very early ethnical period the family, so far as it implies great authority, perhaps even the despotic power of the house-father over his wife and children, may often have been "patriarchal." To admit this, however, is very different from accepting as the primordial cell of social development the strictly defined patriarchal family of Sir Henry Maine's Ancient Law. In this book, which made its appearance in 1861, we are told that the "effect of the evidence derived from comparative jurisprudence is to establish that view of the primeval condition of the human race which is known as the Patriarchal Theory."[11] The primitive family as thus conceived is substantially the Roman family, not in all respects as it actually appears in the historical period, but as it is thought that it must have been before the process of transformation and decay began. It is a much more extended group than the modern family, embracing under the headship of the eldest valid male parent all agnatic descendants and all persons united to it by adoption, as well as slaves, clients, and other dependents.[12] The power of the house-father is most despotic, though exercised during his entire lifetime over the unmarried daughters and over even the married sons and their wives and children. Thus originally, it is said, the Roman pater familias has power of life and death, vita necisque, over his children. He may sell them into slavery, and sons, even those who hold the highest offices of state, can originally own no property.[13] The patriarch is king and priest of the household. As a sort of "corporation sole," he is likewise its representative and administrator; for the property is regarded as a part of the family, and on the death of the house-father the family devolves upon the universal successor.[14] A characteristic feature of the patriarchal family is agnation, or the system of tracing kinship through males only.[15] Agnatic relationship "is in truth the connection between members of the family, conceived as it was in the most ancient times."[16] Its foundation is "not the marriage of father and mother, but the authority of the father.... In truth, in the primitive view, relationship is exactly limited by patria potestas. Where the potestas begins, kinship begins; and therefore adoptive relatives are among the kindred. Where the potestas ends, kinship ends; so that a son emancipated by his father loses all rights of agnation. And here we have the reason why the descendants of females are outside the limits of archaic kinship." Indeed "it is obvious that the organization of primitive societies would have been confounded, if men had called themselves relatives of their mother's relatives."[17] The basis of the patriarchal family is the patria potestas, but in its "normal shape" it has not been and could not be "generally a durable institution."[18] Yet its former universality may be inferred from certain derivative institutions, such as the perpetual tutelage of women, the guardianship of minors, the relation of master and slave, and especially from agnation which is found "almost everywhere" and is "as it were a mould" retaining the imprint of the paternal powers after they have ceased to exist.[19] Applying this test chiefly, Maine finds evidence of the existence of the potestas among the Hebrews as well as all the peoples of the Aryan stock; and he believes that it would be hard to say "of what races of men it is not allowable to lay down that the society in which they are united was originally organized on the patriarchal model."[20]

The patriarchal family as thus constituted is the "type of an archaic society in all the modifications which it was capable of assuming." From it as in concentric circles have been successively evolved all the higher forms of political organization. Everywhere, as at Rome, "the aggregation of families forms the gens or house. The aggregation of houses makes the tribe. The aggregation of tribes constitutes the commonwealth."[21] The state is therefore the result of the expansion of its primordial cell;[22] and the genealogical organization of society precedes and overlaps the territorial. All these groups, lower and higher, regard themselves as united by the bond of kinship. But, as a matter of fact, the kinship is often assumed; and the heterogeneity of blood is explained as the result of the fiction of adoption by which relationship is artificially extended and strangers are admitted to the sacra. Without this fiction, says Maine, "I do not see how any one of the primitive groups, whatever were their nature, could have absorbed another, or on what terms any two of them could have combined, except those of absolute superiority on one side and absolute subjection on the other." Society could hardly have escaped from its "swaddling clothes."[23] Furthermore, a strong motive for the artificial extension of the family is derived from the worship of ancestors. The earnest desire of the ancients for male issue to perpetuate the family rites has tended to foster adoption, and it probably accounts for the levirate and other similar expedients to provide an heir.[24]

II. CRITICISM OF THE THEORY BY SPENCER AND McLENNAN

The patriarchal family of the Ancient Law, whose leading features have now been presented, reappears with slight modification in the later writings of Sir Henry Maine.[25] It has been widely accepted. Yet it was inevitable that a theory which on its face appears to neglect many of the most remarkable facts everywhere observable in the social life of primitive men[26] should arouse most serious doubt. Nor will it do, with Starcke,[27] to excuse the author on the ground that his conclusions are intended to be true only for the domain of the law-books, of comparative jurisprudence; for obviously his language will not bear that construction.

Herbert Spencer was the first writer to subject Maine's hypothesis to a luminous criticism.[28] First he points out that Maine has not been entirely guiltless of "the lofty contempt" entertained by civilized peoples for their barbarous neighbors, which he himself censures as a serious error. For he "has practically disregarded the great mass of the uncivilized" peoples, and "ignored the vast array of facts they present at variance with his theory." Nor, in favor of a primitive patriarchal state, is it safe to assume that "the implicit obedience of rude men to their parents is doubtless a primary fact." For, "though among lower races, sons, while young, may be subordinate, from lack of ability to resist; yet that they remain subordinate when they become men cannot be assumed as a uniform, and therefore as a primary, fact." This objection is sustained by reference to many savage and barbarous tribes among which parents exercise little or no control over the children. Again, it is by no means established that "the history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions." On the contrary, "political co-operation arises from the conflicts of social groups with one another;"[29] and though it may be facilitated by a feeling of common descent, examples of political combination may be produced in which relationship is not considered. Furthermore, it is hard to conceive how so advanced a conception of government as is implied by the patria potestas could exist in the "infancy of society;" nor has it yet been proved that in the primitive state the individual is entirely lost in the family group, which holds all property in common. Instances of "personal monopoly" of property among low races are not wanting. Finally the assumption that in the primordial state women remained in perpetual tutelage is without foundation; how far it is from the truth will be made clear in future chapters.[30]

But the patriarchal theory has been vigorously attacked in its very strongholds, the laws of the Hebrews and the primitive customs of the Indo-Germanic peoples. The well-known polemic of the late J. F. McLennan is of special interest in this connection.[31] Among none of the Aryan races, the Romans only excepted, does he find the patria potestas or the strict rule of agnation; while among them all, he believes, abundant evidence of original promiscuity and of the maternal system of kinship is disclosed. Even the Hebrew Scriptures, where Maine perceives "the chief lineaments" of the patriarchal society,[32] so far from revealing the patria potestas and agnation, bear witness to "beena"[33] marriage and the recognition of kinship in the female line.[34] Sir Henry Maine in this connection refers incidentally to Sir Robert Filmer in whose Patriarchia the existence of the patria potestas among the ancient Hebrews is alleged. But, as McLennan justly observes, "to those who have studied the controversy between Locke and Filmer[35] it may seem wonderful that the truth of Filmer's main position could be thus lightly assumed by anyone, and especially by any lawyer, who had read Locke's masterly reply to the pleadings of his opponent."[36] The principal conclusions of McLennan are sustained in a striking way, for a sister-branch of the Semitic race, by the researches of Wilken and Robertson Smith into the marriage customs of early Arabia.[37] The ancient Hebrews did not have agnation; yet they "traced descent from the father for the purposes of what we may call rank, or a feeling of caste," and this was the source of paternal power.[38] The house-father exercised a high degree of authority over his wives and children, but he can scarcely be regarded as a patriarch in the strict sense of the term.[39]

III. THE THEORY IN THE LIGHT OF RECENT RESEARCH

Let us now see somewhat more in detail what light is thrown by recent investigation on the controversy between Maine and McLennan. Westermarck has taken great pains to enumerate the uncivilized peoples, chiefly non-Aryan, among whom descent and usually inheritance follow the paternal side;[40] and he finds that the number is "scarcely less" than the number of those among whom the female line is exclusively recognized. But in many of these cases it seems probable that the parental rather than the agnatic system prevails, though the male line may take precedence. In some instances rank or authority descends from father to son, while in other respects the female line predominates. Doubtless more frequently than is usually imagined a mixed system rather than a strictly paternal or a strictly maternal system would be found to exist.[41] As the result of his inquiry, Westermarck rejects the hypothesis that kinship through the mother is a primitive and universal stage, though he does not substitute the agnatic theory in its place. Starcke, on the other hand, after an extended examination of the customs of rude races, especially in America and Australia, suggests that the paternal as a general rule probably preceded the maternal system which arose only with the development of the gentile organization.[42] But Starcke's evidence can scarcely be accepted as convincing.

Similar difficulties are presented by the question of the prevalence of the so-called patriarchal power among non-Aryan races. Many apparent examples of despotic authority can be enumerated;[43] but it is often hard to determine whether, as in the cases of the Arabs and Hebrews, we have to do merely with a high degree of power on the part of the house-father or with a genuine patria potestas of the Roman type. Naturally, as Westermarck suggests, the father's authority among savages "depends exclusively, or chiefly, upon his superior strength;"[44] while anything like a patriarchal "system" can only arise later under the influence of ancestor-worship and more developed social and industrial conditions. Where authority depends solely or mainly upon brute force, it is evident that a very protracted patriarchal despotism over the sons is hard to conceive. Moreover, much error has doubtless arisen through falsely assuming that paternal authority and mother-right are incompatible; whereas they may well coexist, as will presently appear.

For the Indo-Germanic or Aryan peoples the investigations of Zimmer, Schrader, Delbrück, Kohler, and especially the researches of Leist, enable us to speak with a higher degree of confidence, though only for the period covered by positive linguistic and legal evidence. Bachofen, McLennan, and after them many other writers,[45] as will later be shown, have maintained that among all branches of the Aryan stock conclusive proofs exist of a former matriarchate, or, at any rate, of exclusive succession in the female line. But this view is decidedly rejected, if not entirely overthrown, by the philologists, and depends for its support on the presence in later institutions of alleged survivals. The judgment of Delbrück must probably be accepted as decisive for the present state of linguistic, if not of all scientific, inquiry. He declares that "no sure traces of a former maternal family among the Indo-Germanic peoples have been produced."[46] Similar conclusions are reached by Schrader, Max Müller, and Leist.[47] Also, among the institutional writers, Wake declares that "primitively among the peoples belonging to the wide-spread Aryan or Indo-European stock, while relationship was acknowledged through both parents, descent was traced preferably in the male line;"[48] and Bernhöft, constrained through the evidence presented by Schrader and Delbrück, believes that it is now placed "beyond question that the primitive Aryans did not live according to mother-right," but were united in family groups resembling the south Slavonian house communities.[49] On the other hand, Dargun, the foremost defender of the theory of mother-right, thinks that Bernhöft has "capitulated" too easily.[50] In his last monograph, entitled Mutterrecht und Vaterrecht, he maintains essentially the conclusion of his Mutterrecht und Raubehe, that before their separation the Aryan people had developed the system of kinship "through the mother as the only or chief basis of blood-relationship" and had "subordinated their entire family law to this principle."[51] But the later treatise contains a very important modification, or perhaps, more justly speaking, extension, of the author's theory. Setting aside as still an open question the general prevalence of promiscuity or sexual communism at the very dawn of distinctively human life, Dargun conceives that, before any system of kinship, maternal or agnatic, became recognized as a principle of customary family law, there must have existed a family, or rather parent-group (Elterngruppe), in which the father was protector and master of the mother and her children. This parent-group is the "hypothetical primordial cell of the family," brought together by sexual requirements and the need of sustenance and protection. It is "structureless, devoid of any firm bond, since it rests neither upon the principle of relationship nor that of legalized power." Its resemblance to the patriarchal family, though misleading, "is not without significance." For it "forms the necessary stage of an evolution which in analogous manner is also passed through by property. Inductively it is still demonstrable that individualism and atomism, not communism, as is usually assumed, are the starting point of evolution."[52] As a general rule, according to Dargun, the structureless parent-group is superseded by the maternal family, whose basis is mother-right, or the exclusive legal recognition of blood-relationship in the female line. Only in rare cases does the patriarchal agnatic family follow immediately upon the primitive group, without prior development of mother-right;[53] and hence, under exceptional conditions hindering the rise of the maternal system, do we find a form of the family in which, from a very early period, the house-father is the source of authority, practical or legalized.

Aside from his theory of evolution, in his principal thesis, which he fairly sustains by powerful argument, Dargun has rendered to science a distinct service. It is, he insists, highly necessary carefully to distinguish between power and relationship. "Mother-right" does not involve "maternal power" or the matriarchate, though sometimes actually united with it; nor does the headship of the house-father as provider, protector, and master imply agnation, the so-called "father-right." There is no contrast between power and relationship. "Mother-right in the sense of exclusive maternal kinship is compatible with a patriarchate just as exclusive." They may, and often do, coexist. It follows that the presence of the maternal system of kinship does not imply the existence of maternal power; just as it does not imply the non-existence of paternal authority. The distinction between power and kinship is justly declared to be an "indispensable key" for the solution of the greatest difficulties arising in this branch of sociological science, the disregard of which has often vitiated or confused the argument even of the foremost investigators.[54] With the aid of his key Dargun examines the linguistic evidence, which he finds favorable to the existence of mother-right among all the Aryan peoples after the separation, though united with a real supremacy of the house-father;[55] and he protests vigorously against the tendency, even on the part of Leist, to confound old Indic with old Aryan law; for the "Indians of the Vedas are in many respects more advanced than the Germans a thousand or the Slavs two thousand years later."[56] Valuable as the criticism of Dargun undoubtedly is, notably his distinction between power and relationship, it can scarcely be admitted that he has done more than reopen the question of the existence at any time of mother-right among the Aryans. His results are negative. He has not shifted the burden of proof; while his argument tends to confirm the view of the philologists that from the primitive stage the Aryan father was head of the household.[57]

But the patriarchal theory, strictly considered, fares little better than the maternal at the hands of recent investigators. Leist, who has been able with wonderful completeness to reconstruct the juridical life of the early household, though largely on the basis of old Indic sources, declares positively that "the Aryan people has not within itself a single element of patriarchalism."[58] This statement, as Bernhöft observes,[59] is perhaps too sweeping, even when tested by the results of Leist's own researches; but the patriarchal family of Sir Henry Maine does not appear. The evolution of juridical conceptions among the old Aryans, according to Leist, presents two general phases. First is the rita stage, or period of fixed, divinely appointed order, of natural law, corresponding to the Greek cosmos or phusis and the Latin ratum or ratio naturalis. In this "natural history" or pantheistic stage there is at first little idea of law as something to be separately contemplated. Under rita is comprehended the unchangeable order observable in the material world as well as in the physical and social life of man; but the universe and the creative energy, the All and Varuna, are identified or blended in thought.[60] Only slowly are these concepts differentiated and the immutable order of nature becomes looked upon as dhama, or a holy ordinance established by Varuna, who now appears as a protecting and creative spirit.

Dhama thus forms a means of transition to the second juridical phase, that of dharma, or divine law, corresponding to the Greek themis and the Latin fas.[61] In the dharma period, law is regarded as inspired by the gods, whose earthly agent, the priest or hero-king, is intrusted with its application; and in it the rules governing civil and public conduct, according to modern conceptions, are not distinguished from those relating to manners, morality, or religion. When history dawns, our early Aryan ancestors had already entered the dharma phase of evolution; and even now the Hindus have scarcely gained the third phase, prevailing in the civilized West, in which the element of "civil law" is separate from all other ingredients.[62]

Of the family relations of our primitive ancestors in the rita period we know little, except through inference or analogy. The so-called "natural forms" of marriage by purchase and capture were doubtless practiced, but probably not exclusively; and these customs were handed down to the second period, though they were modified to bring them into harmony with the higher ethical and social ideas which had then gained predominance.[63] Whether or not the absolute power of the father and the strict rule of agnation prevailed it would be as difficult to affirm as to deny.[64] In the dharma period the ancient rita conception of marriage as an ordinance of nature, whose real purpose is to provide posterity, is still retained; but it gains a social character.[65] The central principle of the Aryan household is the Hestia-Vesta cult, or the worship of the sacred hearth. To gain the protection of the ancestral gods the hearth-fire must be kept always burning; and the care of the family sacra is the special function of the house-father, who is lord and priest of the family. But the house-mother holds a worthy position in the domestic worship. From the first kindling of the hearth-fire at the nuptials, she appears as co-priestess and helper of her husband in the sacred rites. The whole life-partnership of the wedded pair is shaped and dominated by lofty religious motives. The Aryan housewife is not the chattel of her husband; she is a free woman and shares in his highest sacred functions. The primary purpose of the union is the birth of a legitimate son to perpetuate the paternal line and to foster the ancestral cult.[66] So paramount is this motive that, in case no son is born in wedlock, resort may be had to adoption, or to analogous expedients for the fictitious extension of fatherhood. For among the Aryans, as Maine suggests, the fiction of adoption is of the highest legal importance; and, indeed, very widely among the races of mankind it has served a useful purpose in social progress.[67] Here also the Aryan wife appears as co-priestess with her husband. Each is regarded as having a share in the begetting of the child, and they unite in giving the son in adoption to another household.[68] Accordingly the wife is not the mere chattel of her husband, who owns the children by virtue of his proprietorship in the mother.[69] The house-father appears in the sacred books as lord of the wife, who owes him reverence and obedience; yet she is not reduced to patriarchal slavery. With the husband she exercises joint control over the sons; and these are released entirely from parental authority when they marry and establish new households.[70] The male line takes legal precedence; but the maternal kindred are clearly recognized in a way wholly inconsistent with strict agnation.[71] According to the primitive Indic conception the wife is regarded as incapable of property. Neither the widow nor the daughters could inherit, the estate passing to the sons as in theory a means of providing for the sacra of the deceased house-father. Still the bride possessed her personal belongings—her couch, clothing, and ornaments; and from this germ gradually arose, beginning even in remote antiquity, her existing rights of property and inheritance.[72] In short, the old Aryan household reveals but the elements of agnation and the potestas as they appear in the Roman law.[73]

This conclusion is confirmed by the customs of the Aryan peoples after the separation. Among the Hellenes at the first dawn of history the family appears as a member of the gens, which is held together usually by the ties of blood-relationship. The house-father is lord or monarch of the family. But his authority is tempered in various ways. Originally, as among the primitive Aryans, he may have exercised the power of life and death over his children; but in no case could he "put a child to death without the consent of the collective ancestors," or near kindred.[74] By the Aryans the jus vitae necisque was never looked upon as an arbitrary right of destruction, but merely as a means of domestic discipline.[75] The Greek father might sell his minor sons and unmarried daughters; but "it appears that, even here, merely the labor of the youth and not the person itself was disposed of by sale," and the custom was controlled by the usage of the gens.[76] The wife, as among the Hindus, holds a dignified position in the household. She is her husband's partner in the domestic economy and the sacred rites. Equally with him she is "the cause of the son's existence," and in consequence exercises over him conjointly with the father the powers of sale and life and death.[77] Thus Hellenic custom preserves the essential element of the Aryan paternal authority, which signifies a protecting, not an arbitrary or ruthlessly destructive, power. Among the historic Greeks the agnatic principle finds expression especially in the right of guardianship, which is transmitted in the paternal line. Such is the judgment of Leist, whose masterly account of the development of the Aryan agnatic conception proves that here as elsewhere the Roman and the Greek stood upon common ground.[78] The point of divergence is the lifelong continuance of the Roman potestas; whereas in Hellas the son was emancipated at maturity.[79]

Examination of the customs of the Celts,[80] the Slavonians,[81] and ancient Germans[82] leads to a like result. Accordingly we are forced to admit the accuracy of Gaius's conclusion. Writing in the time of the Antonines, he declares his belief that the patria potestas is peculiarly a Roman institution. Only among the Asiatic Galatæ had he observed a similar authority exercised by the father over his children.[83] Instead of existing "almost everywhere," often preserving as in a mold the imprint of the paternal power which it has outlived and upon which it is thought always to depend, among Aryan peoples agnation is found together with the potestas only in one instance, that of the Roman law; and even in this case it was virtually the first to expire.[84] For, as is well known to the student of Roman jurisprudence, strict agnation, as determining right of succession, disappeared under the influence of the edict and imperial statutes long before the last vestige of the real patria potestas was swept away by the legislation of Justinian.[85]

Furthermore, in addition to the historical difficulty, there is another strong reason for doubting the dependence of agnation upon patria potestas: the inconsistency of the latter in its effects upon kinship. If the descendants of married women are excluded from relationship, solely on the ground that they belong to another potestas, why, for the same reason, should not the children of men, say of brothers sui juris,[86] be likewise mutually excluded? Plainly some more satisfactory explanation of this remarkable discrimination between the sexes must exist. Such an explanation McLennan finds in exogamy, or the custom which forbids marriage between persons of the same group of acknowledged kindred.[87] It seems probable that in early times the patrician family was coextensive with the gens. Agnatio and gentilitas were equivalent expressions.[88] During the historical period, at any rate, gentilitas is traced through the male line; and it is not impossible that originally inter-marriage was forbidden between those bearing the same gentile name.[89] In that case, agnation appears as the natural result of the gentile rule of exogamy, retained, after the weakening of the gens, for the regulation of succession within the family. Exogamy, however, does not necessarily imply the patria potestas, but is found more frequently perhaps with the maternal than with the paternal system of kinship.[90] In fact, for the Romans and kindred Italic tribes, considerable evidence has been collected by various writers pointing, as they believe, to an early transition from the maternal to the cognatic or the agnatic system.[91] While this conclusion may be rejected, it must nevertheless be admitted that criticism of the patriarchal theory has been very successful in its general results. It appears to have established beyond question the complex and highly artificial character of the Roman family.[92] So far from being the type of early social organization, it is seen to be relatively modern and ill fitted to the condition of primitive men.

In the meantime, the patriarchal theory has had to reckon with a totally different view of the genesis and development of social institutions. To this view let us now turn.

CHAPTER II
THEORY OF THE HORDE AND MOTHER-RIGHT

[Bibliographical Note II.—A pioneer in the comparative history of marriage and the family is Unger, Die Ehe in ihrer welthistorischen Entwicklung (Vienna, 1850), who notices many of the leading phenomena connected with these institutions in different parts of the world; but his book is essentially a Tendenzschrift, to prove the elevating influence of Christianity and Teutonism. The literature of the Horde and Mother-Right opens, however, with Bachofen's singular but learned treatise, Das Mutterrecht: Eine Untersuchung über die Gynaikokratie der alten Welt nach ihrer religiösen und rechtlichen Natur (Stuttgart, 1861), of which the original edition is now exceedingly scarce, although there is an exact reprint (Basel, 1897). This work is supplemented by Bachofen's Die Sage von Tanaquil (Heidelberg, 1870), and his Antiquärische Briefe (Strassburg, 1886). Upon the Mutterrecht was based Giraud-Teulon's La mère chez certains peuples de l'antiquité (Paris and Leipzig, 1867); followed by Les origines de la famille (Geneva, 1874), and Les origines du mariage et de la famille (Geneva and Paris, 1884), in both of which Bachofen's principal conclusions are supported with much new material. A thoroughgoing disciple of the same school is Lippert, Die Geschichte der Familie (Stuttgart, 1884); and Kulturgeschichte der Menschheit (Stuttgart, 1886-87). Very important also in this connection are the Mutterrecht und Raubehe of Dargun (Breslau, 1883), and his later treatise, Mutterrecht und Vaterrecht (Leipzig, 1892), a very able defense of the theory of mother-right for the Aryan peoples after the separation, though conceding that the maternal system was not developed in the primitive stage.

A scholar, who in the main belongs to the same group and who is one of the foremost students of the laws and usages of savage and barbarous peoples, is Post, whose more important writings are Die Geschlechtsgenossenschaft der Urzeit (Oldenburg, 1875); Der Ursprung des Rechts (Oldenburg, 1876); Die Anfänge des Staats- und Rechtsleben (Oldenburg, 1878); Die Grundlagen des Rechts (Oldenburg, 1884); Einleitung in das Studium der ethnologischen Jurisprudenz (Oldenburg, 1886); Afrikanische Jurisprudenz (Oldenburg and Leipzig, 1887); Studien zur Entwicklungsgeschichte des Familienrechts (Oldenburg and Leipzig, 1889); and "Die Kodifikation des Rechts der Amaxosa von 1891," in ZVR., XI. The last-named paper may be read in connection with Rehme's "Ueber das Recht der Amaxosa," in ZVR., X; Kohler's "Ueber das Negerrecht, namentlich in Kamerun," ibid., XI; Bertholon, "Les formes de la famille," in Arch. de l'anth. crim., VIII (1893); Zöller, Forschungsreisen in der Kolonie Kamerun (Berlin and Stuttgart, 1886); the Kamerun of Buchner (Leipzig, 1887); Munzinger's Ostafrikanische Studien (Schaffhausen, 1864); the important work of Fritsch, Die Eingeborenen Süd-Afrikas (Breslau, 1872), treating of the family customs of various aboriginal tribes; Kranz, Natur- und Kulturleben der Zulus (Wiesbaden, 1880); Kingsley, Travels in West Africa (London, 1897); Tillinghast, The Negro in Africa and America (New York, 1902).

By entirely different routes the theories of universal communism and mother-right were reached by Lewis H. Morgan, beginning with the League of the Iroquois (Rochester, 1851); followed by his great work on Systems of Consanguinity and Affinity (Washington, 1871); the systematic treatise entitled Ancient Society (New York, 1878); and the Houses and House-Life of the American Aborigines (Washington, 1881); and by J. F. McLennan, Primitive Marriage (1865); reprinted with other papers as Studies in Ancient History (London, 1876). After the author's death appeared the Patriarchal Theory (London, 1885), edited and completed by his brother Donald McLennan; and the second series of Studies (London and New York, 1896), edited by his widow and Arthur Platt.

Sir John Lubbock, Origin of Civilization (New York, 1889), maintains the theory and introduces the name of "communal marriage." McLennan is in the main supported by Robertson Smith, Kinship and Marriage in Early Arabia (Cambridge, 1885). This book may be read in connection with Wilken, Das Matriarchat bei den alten Arabern (Leipzig, 1884); Kohler, "Vorislamitisches Recht der Araber," in ZVR., VIII; Friedrichs, "Das Eherecht des Islams," ibid., VII; Vincenti, Die Ehe im Islam (Vienna, 1876); Pischon, Der Einfluss des Islams auf das häusliche, soziale, und politische Leben seiner Bekenner (Leipzig, 1881); Perron, Femme arabe (Paris and Alger, 1858); Kremer, Kulturgeschichte des Orients unter den Kalifen (Vienna, 1875); Vámbéry, Der Islam im neunzehnten Jahrhundert (Leipzig, 1875); his Türkenvolk (Leipzig, 1885); Hanoteau and Letourneux, La kabylie et les coutumes kabyles (Paris, 1893); and Baway, "The Marriage Customs of the Moors of Ceylon," in Journal of the Royal Asiatic Society, Ceylon Branch, 1887-88, X, 219-33 (Colombo, 1888). Read also Redhouse, Notes on Tylor's 'Arabian Matriarchate,' propounded by Tylor before the British Association, Montreal, 1884.

For the matrimonial institutions of the Australian aborigines, whose so-called "group-marriage" has played so great a part in speculation, see especially Fison and Howitt, Kamilaroi and Kurnai (Melbourne, 1880), supplemented by their "Deme and the Horde," in Journal of the Anth. Inst., XIV, 142-68 (London, 1885), comparing Attic and Australian classes and local divisions; Fison's article on "Primitive Marriage," in Pop. Sci. Monthly, XVII (New York, 1880); his paper on "Classificatory Systems of Relationship," in Brit. Assoc. Adv. Sci. (Oxford, 1894); Howitt's "Remarks on the Class Systems Collected by Mr. Palmer," in Journal of the Anth. Inst., XIII, 335-46 (London, 1884); his "Dieri and Other Kindred Tribes of Central Australia," ibid., XX; "Further Notes on the Australian Class Systems," ibid., XVIII, 31-36 (London, 1889); "Organization of Australian Tribes," in Trans. Roy. Soc. of Victoria, I, Part II (1889); and his "Australian Group Relations," in Rep. Smith. Inst., 1883 (Washington, 1885). Important also are Cunow, Die Verwandtschafts-Organisationen der Australneger (Stuttgart, 1894), supplementing Morgan's Ancient Society, while rejecting some of Morgan's and Fison's conclusions; Kohler, "Das Recht der Australneger," in ZVR., VII; his later Zur Urgeschichte der Ehe below named; McLennan, Studies, II, 278-310; Curr, The Australian Race (Melbourne, 1886), rejecting the theory of "group-marriage" and promiscuity; especially Roth's North-West-Central Queensland Aborigines (Brisbane and London, 1899); and Spencer and Gillen's very able and detailed account of the Native Tribes of Central Australia (New York and London, 1899), both of which works, like those of Kohler, tend to sustain the general, though not all the incidental, conclusions of Fison and Howitt. Among the many papers and books useful for studying the social life of the Australians are Palmer, "Notes on Some Australian Tribes," in Journal of the Anth. Inst., XIII (London, 1884); Mathew, "The Australian Aborigines," in Journal of the Royal Society of New South Wales, XXIII (Sydney, 1889); Mathews, "Australian Class Systems," in The Am. Anthropologist, IX, X (Washington, 1896-97); and his "The Victorian Aborigines," ibid., XI (Washington, 1898). Supplementary materials may likewise be found in Dawson, Australian Aborigines (Melbourne, Sydney, and Adelaide, 1881); Jung, Das Welttheil Australien (Leipzig, 1882); Smyth, Aborigines of Victoria (London, 1878); Smith and Stewart's The Booandik Tribe (1880); Lang, Social Origins; Atkinson, Primal Law (published together, London, New York, and Bombay, 1903); and especially Crawley, Mystic Rose (London and New York, 1902).

McLennan was first systematically and luminously criticised by Spencer, in Part III of his Principles of Sociology (published, in parts, 1874-77; complete, New York, 1879). McLennan replied in two articles in the Fortnightly Review, XXVII (London, 1877); and in turn Spencer has a "Rejoinder," reprinted in his Various Fragments (New York, 1898). Gomme supplements McLennan's evidences for his "Theory of the Primitive Horde," in Journal of Anth. Inst., XVII (London, 1888); and this article is criticised by Wake, Primitive Human Horde, reprinted from ibid., February, 1888. Morgan is supported by Engels, Ursprung der Familie (Stuttgart, 1892). His researches are appreciatively reviewed and supplemented by Bernhöft, Verwandtschaftsnamen und Eheformen der nord-amerikanischen Volksstämme (Rostock, 1888); and they are criticised by Lubbock, "On the Development of Relationships," in Journal of Anth. Inst., I (London, 1872). The views of Morgan and McLennan are examined by Wake in his "Classificatory Systems of Relationship," ibid., VIII (London, 1879); and his "Primitive Human Family," ibid., IX (London, 1880). See also his "Nature and Origin of Group Marriage," ibid., XIII (London, 1884); and his Le mariage communal (Paris, 1875), replying to Barbier. An able conservative writer, vigorously and learnedly attacking the fundamental conclusions of recent sociological and ethnological science, is Schneider, Die Naturvölker: Missverständnisse, Missdeutungen und Misshandlungen (Paderborn and Münster, 1885-86). He is severely criticised by Hellwald, whose Menschliche Familie (Leipzig, 1889) is one of the most original contributions to our subject. This was preceded by the same writer's Kulturgeschichte (3d ed., Augsburg, 1883). Important monographs are Bobbio, Sulle origine e sul fondamento della famiglia (Turin, 1891); and the clear summary of Th. Achelis, Die Entwicklung der Ehe (Berlin, 1893); which may be read in connection with Dr. A. Achelis's "Geschlechtsgenossenschaft," in Zeitschrift der Gesellschaft für Erdkunde, No. 148 (Berlin, 1890). Of service also in connection with various topics are Cunow, "Die ökonomischen Grundlagen der Mutterherrschaft," in Neue Zeit, No. 4, XVI. Jahrg., I. Band (Stuttgart, 1897); Ploss, "Ueber das Heirathsalter der Frauen bei verschiedenen Völkern," in Mittheilungen der Ver. für Erdkunde, 1872 (Leipzig, 1873); Redslob, Levirats-Ehe bei den Hebräern (Leipzig, 1836); Danks, "Marriage Customs of the New Britain Group," in Journal of Anth. Inst., XVIII, No. 3; Roth, "Significance of the Couvade," ibid., XXII (London, 1893); Peal, "On the 'Morong,' as Possibly a Relic of Pre-Marriage Communism," ibid., XXII; Ellis, "On Polyandry," in Pop. Sci. Monthly, October, 1891; idem, Tschi-Speaking Peoples (London, 1887); idem, Ewe-Speaking Peoples (London, 1890); Brouardel, L'infanticide (Paris, 1897); Frazer, Totemism (Edinburgh, 1887); Peet, "Tribal Records in the Effigies," in Am. Antiquarian, XV (Chicago, 1893); Lubbock, "Social and Religious Condition of the Lower Races of Man," Rep. Smith. Inst., 1869 (Washington, 1872); Stricker, "Untersuchungen über die kriegerischen Weiber," in Archiv für Anthropologie, V; his Amazonen in Sage und Geschichte (Berlin, 1868); Avery, "Races of the Indo-Pacific Oceans," in Am. Antiquarian, VI (Chicago, 1884); Greenwood, The Wild Man at Home (London, n. d.); Peschel, Races of Man (London, 1889); Zmigrodski's interesting Die Mutter bei den Völkern des arischen Stammes (Munich, 1886); Peet, "Houses and House-Life among the Pre-Historic Races," in Am. Antiquarian, X (Chicago, 1888), taking the same general view as Morgan; and his "Earliest Abodes of Men," ibid., XV (Chicago, 1893). To bring criticism down to date read Tillier's able and suggestive book Le mariage: sa genèse, son évolution (Paris, 1898); Tylor, "The Matriarchal Family," in Nineteenth Century, XL, 81 (July, 1896); Kohler, Zur Urgeschichte der Ehe (Stuttgart, 1897); Giddings, Principles of Sociology (New York and London, 1896); and especially the discussions of the matriarchate, the forms of marriage, and similar topics by Abrikossoff, Westermarck, Letourneau, Kovalevski, and others in Annales de l'institut international (Paris, 1896).

A mass of materials relating to every phase of the subject for many peoples may be found in the large general works of Klemm, Cultur-Geschichte der Menschheit (Leipzig, 1843-52); Waitz-Gerland, Anthropologie der Naturvölker (Leipzig, 1860-72; 2d ed., begun 1877); Featherman, Social History of the Races of Mankind (London, 1881-91); and Ratzel, History of Mankind (London and New York, 1896-98). General summaries are given by Adams, "Primitive Rights of Women," in Historical Essays (New York, 1891); McGee, "The Beginnings of Marriage," in Am. Anthropologist, IX (Washington, 1896); Solotaroff, "Origin of the Family," ibid., XI (Washington, 1898); Nadaillac, L'évolution du mariage (Paris, 1893); Brinton, "Religions of Primitive Peoples," in his American Lectures, 2d series (New York and London, 1897); Devas, Studies in Family Life (London and New York, 1886); Lang, "Early History of the Family," in his Custom and Myth (London, 1884); Miln, Wooings and Weddings (Chicago, 1900); and Hutchinson's popular Marriage Customs in Many Lands (London, 1897). An earlier book, inferior though similar in scope to the one last named, is Hamilton's Marriage Rites, Customs, and Ceremonies (London, 1822). Of little value, except as marking the beginning of attempts to write general histories, are Moore, Marriage Customs (London, 1814; 2d ed., 1820); Laumier, Cérémonies nuptiales (Paris, 1829); the anonymous Hochzeitsgebräuche aller Nationen (Swabach, 1783); and Hurtaut's Coup d'œil anglois sur les cérémonies du mariage (Geneva, 1750), compiled from Louis de Gaya's Cérémonies nuptiales (original ed., Paris, 1680). The subject is also treated by Schroeder, Das Recht in der geschlechtlichen Ordnung (Berlin, 1893); Gage, Woman, Church, and State (Chicago, 1893); and Mason, Woman's Share in Primitive Culture (New York, 1894). Mucke, Horde und Familie (Stuttgart, 1895), traces the classificatory systems of kinship to original "space-relationships" in the horde camping-place, and the work is a remarkable example of ingenious though fantastic speculation on a large scale.

For the matrimonial customs of low races, especially valuable are Krause, Die Tlinkit-Indianer (Jena, 1885); Marshall, A Phrenologist amongst the Todas (London, 1873); and the magnificent volumes of Paul and Fritz Sarasin, Die Weddas von Ceylon (Wiesbaden, 1892-93). For examples of sexual practices, commonly regarded as survivals of original promiscuity, see Buch, Die Wotjäken (Helsingfors, 1882); Kohler, "Studien über Frauengemeinschaft," in ZVR., V; Bastian, Rechtsverhältnisse (Berlin, 1872); his "Eheverhältnisse," in ZFE., VI; and his "Matriarchat und Patriarchat," ibid., Verhandlungen (Berlin, 1886); Ploss, Das Weib (Leipzig, 1895); his Das Kind (Leipzig, 1884); and Mantegazza's Geschlechtsverhältnisse des Menschen, constituting with the earlier Physiologie der Liebe and Hygiene der Liebe his so-called "trilogy of love." For the bearings of phallicism on the subject read Howard's Sex Worship (2d ed., Washington, 1898), containing a bibliography. In this connection are also of service the works on "seignorial right," the most elaborate monograph being Schmidt's Jus primae noctis (Freiburg, 1881), containing a full bibliography. See also his Slavische Geschichtsquellen zur Streitfrage über das Jus Primae Noctis (Posen, 1886); his paper in ZFE., XVI; and Kohler's criticism, ZVR., IV, V. Against its existence as a right of the mediæval lord are Veuillot, Droit du seigneur (1st ed., Paris, 1854; 3d ed., 1878); Raepsaet, Recherches (Gand, 1817); Barthélemy, "Droit du seigneur," in Revue des questions historiques, I (Paris, 1866), a critical paper of value; and Labessade, Droit du seigneur et la rosière de Salency (Paris, 1878). In his Réponse (Paris, 1857) Delpit makes a vigorous and detailed reply to the arguments of Veuillot (early edition). See also Foras, Droit du seigneur (Chambéry, 1886); and, for comparison, read "Bibliophile's" Les nuits d'épreuve des villageoises allemandes avant le mariage (Brussels, 1877); Grupen's quaint De uxore theotisca (Göttingen, 1748); and Fischer's remarkably valuable and interesting Probenächte der teutschen Bauernmädchen (Berlin and Leipzig, 1780; reprinted, Leipzig, 1898).

To "break ground" for the study of the subject it may be well in the outset to read chaps. iii and iv of Posada's Théories modernes; Kautsky's "Entstehung der Ehe und Familie," in Kosmos, XII; Friedrichs, "Ursprung des Matriarchats," in ZVR., VIII, in connection with his "Zur Matriarchatsfrage," in ZFE., XX; and especially his "Familienstufen und Eheformen," in ZVR., X. The literature and the theories are also reviewed by Bernhöft, "Zur Gesch. des eur. Familienrechts," ibid., VIII; and Schurman gives an interesting summary and criticism in Ethical Import of Darwinism (New York, 1888).

For the works of Wake, Letourneau, Starcke, Westermarck, and other antagonists of the horde theory, see Bibliographical Note III.]

I. BACHOFEN AND HIS DISCIPLES

In the same year with the Ancient Law appeared a book which was destined to have an extraordinary influence in giving a new direction to speculation and research. This was the Mutterrecht of the Swiss scholar Johann Jacob Bachofen, whose memory is revered by many followers.[93] The author shows a wide and minute acquaintance with classic literature and the early myths; but his work is fantastic and almost wholly devoid of scientific method.[94] The material is drawn mainly from two sources: the fragmentary notices of the rules of kinship and the matrimonial customs of various peoples handed down from ancient writers, supplemented slightly through similar accounts by modern travelers; and an interpretation of the supposed symbolism of religious myths, particularly those of the Greeks.[95] The inferences derived from this second source are often far-fetched and fanciful in the extreme. Though the general results of the investigation are summarized in a short introduction, the argument is so loose, the arrangement so confusing, and the style so obscure that it is with the utmost difficulty the author's meaning can be gathered. Nevertheless it is undeniable that he has created the terminology and developed the essential elements of the communistic and gynocratic theories even in their leading details.

According to Bachofen, there are three general phases in the evolution of human sexual relations. The first is the period of aphrodistic hetairism, in which men and women have each other in common; the second is the period of demetrian mother-right or gynocracy, in which kinship and succession are in the maternal line and woman gains religious and political supremacy; and the third, the period of the patriarchate or apollonistic father-right, in which the more spiritual principle of paternity is triumphant.[96] Each of these periods is regarded as a universal culture-stage.[97]

In the first phase, or that of the unregulated communism, material motherhood is the essential fact. Fatherhood is necessarily uncertain. There is no conception of kinship between father and child. Woman, it is assumed, is exposed to the lust or sexual tyranny of man; and it is through her successful revolt against the bondage of unbridled hetairism that she attains the second stage of progress.[98] The period of demetrian gynocracy is therefore represented as a turning-point, a transitional phase, through which humanity passes from its lowest to its highest status. With it the rudiments of marriage appear, but combined with hetairism surviving in various forms or gradations. It is the woman and not the man who obeys the marriage law.[99] Indeed, strict marriage, the exclusive appropriation of a woman by one man, is looked upon as an abridgment of a natural or religious right for which expiation must be rendered to the goddess whose law is violated;[100] and only thus, as a penalty or composition for the privilege of restricted intercourse, can be rationally explained those lascivious customs, such as temporary prostitution, so often found in connection with legal marriage.[101]

A difficulty, however, presents itself. The theory of Bachofen assumes, as a general fact in social evolution, that a period of promiscuity and oppression of the female sex is followed, not merely by an age of mother-right, involving as a necessary consequence of the continued uncertainty of fatherhood the recognition of kinship only in the maternal line; but by an age of gynocracy, involving the social leadership of women and eventually the political and even the military subordination of men. Woman emancipates herself and then she becomes an Amazon. "Weary of the lust of man, she first feels a longing for a securer position and a purer existence. The feeling of shame and the rage of despair inflame her to armed resistance."[102] As "a rival to man, the Amazon became hostile to him, and began to withdraw from marriage and from motherhood. This set limits to the rule of women, and provoked the punishment of heaven and men. Thus Jason put an end to the rule of the Amazons in Lemnos; thus Dionysos and Bellerophon strove together, passionately, yet without obtaining any decisive victory, until Apollo with calm superiority finally became the conqueror;"[103] and so the purer principle of fatherhood prevailed and the era of father-right appeared. But, says Bachofen, that woman should gain supremacy over man arouses our astonishment, because the fact is contrary to what we should expect from their relative physical powers. "The law of nature delivers the scepter of power to the stronger." The paradox, however, is easily explained. "At all times woman has exerted the most powerful influence upon man, upon the culture and morals (Gesellung) of peoples," through the direction of her mind toward the supernatural, the wonderful, and the divine. Through her possession of the mysteries of religion she deprived man of the superior position which nature had given him. "Religion is the only efficient lever of all civilization. Each elevation and depression of human life has its origin in a movement which begins in this supreme department."[104] "Just as the child receives its first discipline from the mother, so do peoples receive it from woman. The man must serve before he can attain supremacy. To the wife alone it is given to tame the unbridled power of man and to guide him in the path of well-doing."[105] But amazonism was a shock to the religious feeling in the stage of mother-right, just as gross hetairism was an offense in the former period. Hence arose a striving for the realization of a higher conception of social relations. "It was the assertion of fatherhood which delivered the mind from natural appearances, and when this was successfully achieved, human existence was raised above the laws of material life. The principle of motherhood is common to all the species of animal life, but man goes beyond this tie in giving the pre-eminence to the power of procreation, and thus becomes conscious of his higher vocation.... In the paternal and spiritual principle he breaks through the bonds of tellurism and looks upward to the higher regions of the cosmos. Victorious fatherhood thus becomes as distinctly connected with the heavenly light as prolific motherhood is with the teeming earth."[106] "All the stages of sexual life, from aphrodistic hetairism to the apollonistic purity of fatherhood, have their corresponding type in the stages of natural life, from the wild vegetation of the morass, the prototype of conjugal motherhood, to the harmonic law of the Uranian world, to the heavenly light which, as the flamma non urens, corresponds to the eternal youth of fatherhood. The connection is so completely in accordance with law, that the form taken by the sexual relations of life may be inferred from the predominance of one or the other of these universal substances in worship."[107]

The theories of Bachofen have given rise to luxurious speculation. With slight modification his conclusions have been accepted by a host of faithful disciples. By others they have been criticised or abandoned. Various schemes have been constructed in the attempt to explain the sequence in which the forms of marriage and the phases of the family have historically appeared. With the literature of this speculation, so far as primitive communism is assumed, the present chapter is concerned. As a rule, only the incidental or negative results of criticism will be noticed, leaving for the following two chapters the criticism originating in a wholly different view of social evolution.

It is convenient in the outset to note the importance of carefully distinguishing between the conception of mother-right, implying kinship in the female line, and that of gynocracy, denoting the supremacy of the female sex.[108] Bachofen, as already seen, uses Mutterrecht as comprehending gynocracy; while some of his followers likewise speak confidently of a time when women took social precedence of men, or even held them in political subjection. Such is the view of Giraud-Teulon, who, with Bachofen, interprets the Amazon myth as implying an age in which women exercised a decided social and political domination.[109] Lippert and Unger take a similar position.[110] On the other hand, it is maintained by a number of writers, who reject the idea of a political or military gynocracy, that the inheritance of name and family rights through the mother usually gives woman a decided precedence in the sphere of social life and private law. This is the opinion of Kautsky, who declares that mother-right involves the headship of woman in the family.[111] Peschel,[112] Tylor,[113] Letourneau,[114] and Hellwald[115] hold a similar view; and with them Grosse,[116] Kohler,[117] and Friedrichs,[118] though more reserved, appear in the main to coincide. Dargun likewise rejects the idea of woman's political supremacy, while holding that mother-right sometimes grows into a real matriarchate so far as private law is concerned.[119] The weight of evidence, however, shows that even this modified view exaggerates the advantages gained by woman under mother-right. It may be admitted that here and there—as for instance among the Sioux, the Wyandots, and some other American peoples[120]—the determination of the child's social and legal rights through the mother has somewhat ameliorated the condition of woman. Yet often, as Dargun[121] has so well shown, the same custom has not enabled her to escape social degradation or marital bondage.[122] She is rather the medium through which rights are conveyed and relations established. "Thus, for instance, among the Australians, with whom the clan of the children is, as a rule, determined by that of the mother, the husband is, to quote Mr. Curr, almost an autocrat in his family, and the children always belong to his tribe."[123] Dr. Starcke reaches a similar conclusion. Referring to the "important place" taken by the wife among various African peoples, he declares that all which "has been said only shows that women in some instances enjoy privileges which are always enjoyed by men."[124] In short, if among many peoples at some stage of progress research has clearly demonstrated the existence of mother-right, it has just as clearly shown that the notion of a gynocracy, of a period of female supremacy, is without historical foundation.

The theory of original communism has been accepted by many writers,[125] though examples of absolute promiscuity have not been produced.[126] Its former existence is inferred from certain customs and institutions which are believed to be its survivals. Even the promiscuity which is thus assumed is not "perfectly indiscriminate," but restricted to the members of the unorganized horde or tribe occupying a particular locality or roaming about together. Hence, significantly, it has sometimes been described as communal or group "marriage."[127] Accordingly the horde[128] or band becomes the unit or starting-point of social development.

Many evidences of the former universality of promiscuity are brought forward. This evidence—to adopt Westermarck's convenient analysis—"flows from two sources. First, there are, in the books of ancient writers and modern travelers, notices of some savage nations said to live promiscuously; secondly, there are some remarkable customs which are assumed to be social survivals, pointing to an earlier stage of civilization when marriage did not exist."[129] The mass of facts collected to illustrate the licentiousness of savage and barbarous tribes cannot here be dwelt upon.[130] It must suffice for the present to note that, according to recent investigation, every instance of alleged indiscriminate sexual relations appears to stop far short of absolute promiscuity.[131] So also several of the more interesting customs, regarded as direct survivals of communism, require only to be briefly mentioned. The principal argument, of course, as will presently appear, is grounded upon the existence of polyandry, and especially upon the proofs adduced of the wide prevalence of kinship reckoned through the mother's line. For it is generally assumed that this system can arise only when paternity is uncertain. Legalized hetairism or prostitution,[132] practiced under various forms and restrictions among many peoples, savage, barbarous, and civilized, is thought to be a proof of original communism.[133] The same is true of "proof-marriages,"[134] existing among the Wotjäken, Burmese, the Germans, in Loango, and elsewhere; of "temporary" marriages,[135] as among the Parthians and American Indians; and of "wife-lending," examples of which are afforded by the Spartans, Romans, Hindus, Arabs, Eskimo, Germans, Wotjäken, and many other peoples.[136] In this connection, likewise, belong those "scandalous nuptial rites" which Bachofen, Lubbock, and Giraud-Teulon regard as acts of "expiation" for marriage. According to this theory, marriage, the individual possession of a woman, was originally regarded as a violation of communal right, for which some compensation or expiation must be rendered.[137] The customs referred to fall for the most part in two general classes. The first group comprises the lascivious religious rites, the so-called sacred or temple prostitution, found in connection with the worship of various deities of love and procreation, such as the Babylonian Mylitta, the Hellenic Aphrodite, the Italian Venus and the Carthaginian Moloch.[138] In the second class fall the revolting nuptial privileges, accorded in many parts of the world to priest, chieftain, or king, or to the friends of the bridegroom and sometimes to those of the bride. To these privileges in general the name of jus primae noctis has been given.[139] A curious example of this practice among the American aborigines is communicated by Castañeda.[140]

The argument for original promiscuity based on the various practices just mentioned is not conclusive. Most, if not all, of them are perhaps capable of other and simpler explanations. The wife-lending, as suggested by Westermarck, may be "due merely to savage ideas of hospitality;"[141] while the custom of sacred prostitution evidently belongs "to phallic-worship, and occurred, as Mr. McLennan justly remarks, among peoples who had advanced far beyond the primitive state. The farther back we go, the less we find of such customs in India; 'the germ only of phallic-worship shows itself in the Vedas, and the gross luxuriance of licentiousness, of which the cases referred to are examples, is of later growth.'"[142] So likewise the jus primae noctis, instead of being an expiation for an encroachment on communal right, may be more naturally explained either as an abuse of power,[143] in some cases as an evidence of hospitality,[144] or in others as a "common war-right, exercised whenever, under any circumstances, capture of a woman is made by a war-party."[145] The toleration of the custom, like that of wife-lending, may sometimes be due to the "juridical" nature of fatherhood as conceived by primitive men.[146]

On the other hand, the theory that these customs are evidences of original sexual communism has gained support from the recent researches of Spencer and Gillen in their very able and detailed book on the Native Tribes of Central Australia. Among these aborigines, the authors declare, "so far as marital relations ... are concerned, we find that whilst there is individual marriage, there are, in actual practice, occasions on which the relations are of a much wider nature. We have, indeed, in this respect three very distinct series of relationships." First we find the present "normal condition of individual marriage with the occasional existence of marital relations between the individual wife and other men of the same group as that to which her husband belongs, and the occasional existence also of still wider marital relations;" secondly "we have evidence of the existence at a prior time of actual group marriage;" and in the third place "we have evidence of the existence at a still earlier time of still wider marital relations."[147]

But these usages are capable of a very different explanation. That they imply a primitive state of promiscuity is emphatically denied by Crawley. Like sacred prostitution, the customs of avoidance, the couvade, and marriage rites in general, according to his theory, they take their rise in the religious or superstitious ideas upon which sexual taboo rests.[148]

Adherents of the communistic theory are not entirely at one as to the phases in the development of marriage and the family. Very generally the family, regarded from the standpoint of authority and kinship, is said to pass from the unregulated horde through the maternal and the paternal to the parental or two-sided stage.[149] Thus Dargun declares that there is a tendency for the uterine system of kinship to give place to the paternal, but never the reverse.[150] Kohler takes the same position.[151] Lippert regards the history of social culture as beginning with the natural relation of mother and child, producing in course of evolution, long before "marriage" arose, the "primitive family" whose principle is mother-right, and which, in turn, under various influences, generally yields to the "old family" (Altfamilie) in its origin based, not on relationship, but on patriarchal power and possession.[152] Bernhöft denies the invariable sequence of mother-right and father-right;[153] and Kautsky maintains that the two systems are parallel, not successive, developments from the hetairism of the primitive horde.[154]

Marriage also, like the family, is said to pass through several distinct phases of development. Thus, with respect to the number of persons joining in a household, Friedrichs distinguishes four "forms" of marriage which, with equal propriety, may be called forms of the family. These are group-marriage, polyandry, polygyny, and monogamy, the first three forms having several varieties.[155] But, as will hereafter appear,[156] it would be rash to infer that these forms necessarily arise in the order named. Again, with regard to the way in which it originates, marriage presents a number of successive stages. According to Kohler,[157] these are marriage by capture, marriage by purchase, religious marriage, and civil marriage. That wife-capture generally gives place to wife-purchase, and this in turn to marriage by gift, and then to the modern contract between the parents, or later between the parties themselves, is especially insisted upon. Hildebrand,[158] however, reverses this order. A measure of progress he finds in what he regards as the three great industrial stages of human culture: those of the chase, pastoral life, and agriculture. In the first stage, not communism, but a tendency toward monogamy prevails. There is little notion of private property; hence covetousness is not a motive of social action. Marriages are freely formed through presents given to the parents, or even without them by simple agreement of the parties. Later, with the rise of private property, marriage by purchase and marriage by capture come into existence; though capture is always exceptional and of comparatively little importance in the history of marriage.

Similar to the view of Hildebrand, in respect to the initial stage, is the theory of Kautsky.[159] The starting-point is the horde. In this absolute equality of the sexes prevails; and the only divisions are the different generations. Neither the maternal nor the paternal line is recognized, for the children belong to the group. Not promiscuity, but "hetairism,"[160] or rather "hetairistic monogamy," exists. Incessant feuds, however, lead to wife-capture; and wife-capture tends directly to communism, for the captured woman belongs as a slave to the band. But the rights of the band may pass to the individual. The free native woman is "wooed;" the war-captive is "fought-for;" and so she becomes the slave-wife of the strongest, who may win other wives in the same way. Marriage by capture thus conquers the original monogamy, in whose place polygyny appears, either at once, or after a transition-period of community in women. Moreover, in this process may be discerned the genesis of modern individual marriage under the sanction of the law. But the consequences of wife-capture are not yet exhausted. The presence in the horde of women taken from several neighboring bands leads at once to the formation of clans and to the matriarchate; for the connection of children with the clan is naturally determined by the mother. The development of private property produces still further results. The individual may buy his wife. She becomes his chattel; and the offspring also belong to him. Thus marriage by purchase gains the victory over wife-capture; and the patriarchate triumphs over mother-right. This is the order of development in the more war-like hordes. But wife-capture does not always precede wife-purchase as a general phase. In the more peaceful and industrious groups wife-capture does not appear at all. Here hetairistic monogamy runs its natural course. Partly under the external influence of tribes where mother-right existed as the result of wife-capture, but mainly under the powerful influence of private property, the matriarchate arose. In the earlier stage kinship with the father was disregarded or unknown. Naturally, therefore, under the new condition, name and also property were transmitted to the children through the mother, with whom their physical connection was always manifest. So it appears that the conception of private property is the basis of "hetairistic mother-right" as it is of father-right; and hetairistic mother-right, as distinguished from the mother-right which owes its origin to wife-capture, implies the precedence of woman in the family.[161] "Gynocracy and patriarchalism are therefore parallel branches of the same stem," the original hetairism of the horde: the one cannot be a further development of the other. Gynocracy, and with it polyandry, which is its result,[162] is the highest stage in the evolution of hetairistic mother-right; just as polygyny and the patriarchal family are the highest stage in the evolution of father-right or the agnatic system of kinship.[163]

To the theory of Kautsky that of Dargun, already explained, bears some resemblance in important details. But Dargun rejects Kautsky's idea of original monogamy; and he does not regard wife-purchase as the necessary source of the patriarchate, though the rise of the latter was greatly favored by it; while mother-right is especially due to the uncertainty of fatherhood.[164]

Hellwald—who in the general development of his subject and in many essential particulars agrees closely with Lippert[165]—seeks the elements of human sexual relations in those of the lower animals. Absolute promiscuity has never existed among men. The hetairism which prevailed was restricted to the immediate band or horde of kindred, which was probably never large. Thus in the horde there was "unregulated polygyny." To the earliest sexual relations[166] of men neither "marriage" nor "family" may properly be applied; and for them no suitable name is forthcoming. In the horde the first social institution evolved was the "mother-group" or rudimentary primitive family (Urfamilie). "Mother and child," as Lippert suggests, "these were the simplest elements of the oldest organization." For the "relation of mother and child alone is given by nature."[167] In the form of the mother-group the family, however imperfectly constituted, precedes the state in the order of growth; although it is not until society, the state, has gained permanent form that from it the historical "family" is developed.[168] Indeed, the mother-group is "lacking in everything" which distinguishes the family according to our modern conceptions.[169] The history of the "primitive family," so far as mother-right is concerned, shows two stages of evolution. The first stage is that of the mother-group strictly so called, through which, as Bachofen and Dargun declare, every race passes and in which all relationship is traced through the mother's blood.[170] Absolute unity or identity of blood is the basis of the earliest human conception of relationship. Generations or stages of seniority alone (Altersstufen), not degrees of kinship, are recognized. Members of the group are of equal blood, "consanguine."[171] Relationship with the father is as yet unknown; and there is in the outset no conception of property. Gradually, however, in the endogamous mother-group a horror of incest, of inbreeding, arises, thus leading to exogamy, which is often facilitated by the stealing of women from surrounding groups. The obtaining of foreign women next produces the clan system. Private property in land and movables arises, especially among those peoples which have attained to settled life and a knowledge of agriculture. In this way the "primitive family" enters upon its second stage—that of the matriarchate. Here we find for the first time forms of marriage and the family properly so called, although rudimentary as compared with the modern institutions. The mother ceases to be merely the center of the common life; she is now the social axis around which everything revolves. Mother-right, implying kinship as well as succession to name and property exclusively in the maternal line, becomes fully established. The matriarchate, unlike the simple mother-group, is not a universal phase through which all mankind has run. In some cases the agnatic system or father-right may have followed immediately upon the earlier stage of mother-right. Incident to the matriarchate are the polygynous and polyandrous forms of the family. With these the institution of property grew apace; and so we reach the paternal system, whose triumph is powerfully aided by wife-capture. In this stage, whatever be the form of social union—whether it be called gens, sippe, or joint-family—it rests upon the authority of the father or patriarchal lord. Following Lippert,[172] the author prefers for this patriarchal group the name "old family" (Altfamilie); and he finds its most famous examples in Hellas and Rome. Here monogamy gained the victory; and so, under the influence mainly of Stoicism and Christianity, the foundations of modern marriage and the individual family were laid.[173]

The influence of economic forces on the evolution of matrimonial and family institutions is especially emphasized by Grosse. Restricting his examination to the conditions which lie within actual "historical or ethnological experience," he seeks to demonstrate that the "various forms of the family correspond to the various forms of economy (Wirthschaft);" that "in its essential features the character of each particular form of the family may be explained by the form of economy in which it is rooted." For the sake of clearer analysis the peoples known to history or ethnology are arranged, not in three, but in five groups according to the leading types of industrial life. These are the lower and upper hunters, the pastoral peoples, and the lower and upper cultivators of the soil.[174] But, like Kohler, Lippert, and Hellwald,[175] the author rejects the popular theory adhered to by Hildebrand, that the chase, herding, and agriculture are three successive stages of progress through which all the races of mankind have necessarily passed. For, as a matter of fact, some pastoral peoples, and even some hunters, like the Eskimo, are more advanced in culture than various peoples who are chiefly dependent upon agriculture; and some tillers of the soil, as Hildebrand concedes, may never have passed through the pastoral stage.[176] On the other hand, Grosse distinguishes two forms of the family: the individual family (Sonderfamilie), or the community of parents and children living in a lasting and exclusive marriage relation, and the great-family (Grossfamilie), which comprises, not merely parents and children, but all descendants with their families, so far as they are not separated from it by marriage or otherwise. Examples of the "great-family" are afforded by the Romans and the Chinese; while the "individual family" is practically the only form known wherever western European culture prevails. In each form of the family either the maternal or the paternal succession (Mutterfolge or Vaterfolge) may exist; but succession must not be confused with the matriarchate or with the patriarchate, each involving the idea of authority; although paternal succession usually implies paternal power, while succession in the female line does not necessarily carry with it the supremacy of the mother.

Among the peoples classed as "lower hunters," even the most backward, exists the individual family; and in the majority of cases it is founded on monogamic marriage, for promiscuity nowhere appears. The authority of the husband is patriarchal. "He procures his wife by exchange or service; and in consequence he is her owner and lord." The "great-family" and the gens (sippe) are also found among these peoples; but they are relatively little developed. Gentes which have become unions for protection and control of territory are father-gentes; while those in which the kinship is traced through the mother are not unions for the purposes of the common life, but for maintenance of the common name.[177] The case is practically the same for the "upper hunters." Wife-purchase, however, is more pronounced. The individual monogamic family still predominates. Kinship through the mother is not so much a "motive for union as it is for separation of those related by blood."[178] Here as among the lower hunters it is the paternal gens which forms an actual union for the common life; and there is "not the least ground for assuming" that a patriarchal gentile constitution has replaced an earlier matriarchal form. Among peoples leading a pastoral life, even more than with those devoted to the chase, the chief economic production lies in the hands of the man. Accordingly he has the place of power and honor. Through him descent and kinship are usually traced. Nowhere is the paternal system so one-sided and so stringently carried out as among pastoral tribes. Woman is oppressed and degraded. She is bought or stolen by her lord. Polygyny, with all its attendant evils, flourishes. The individual family has a thoroughly patriarchal stamp; but it is still the most conspicuous social fact, surpassing in practical significance for the needs of the pastoral life the great-family, and far more the gens. On the contrary, among the lower cultivators woman holds an economic position at least equal in social importance to that of man. As a rule, therefore, she is no longer his slave, but his companion, sometimes even his superior. She gains a corresponding share in the control of the children. The great-family is in like manner affected by the new economic conditions. Communal agriculture gives a mighty impulse to the growth of the gentile constitution; and now among many peoples, under influence of the new and higher position of woman, the maternal gens, perhaps existing side by side with the paternal gens, is developed into a firm social, economic, and political union. In the life of the lower cultivators, if the gens thus becomes the mightiest social organization, the fact is due essentially to its economic function. With the change from communal to individual agriculture the gentile constitution is dissolved; and so among the higher cultivators the individual monogamic family has more than regained its former sway. "Thus it appears," the author summarizes, "that under every form of culture that form of family organization prevails which is best suited to economic needs and conditions;" although, he wisely warns us, a perfect explanation of the various types of the human family can never be given until every part and function of culture which has had an influence upon the functions or the organisms of the family has been separately examined for each case.[179]

The views of Dargun, Hildebrand, and Grosse may be compared with the remarkable, but scarcely well-grounded, speculation of Mucke.[180] According to his ingenious theory, men originally lived in the horde, which, so far from being a fortuitous unorganized band, in which "animal promiscuity" prevailed, was so strictly ordered as to be worthy the name of the "society of the primeval age."[181] In the horde all are free and equal. There is no subordination of the wife, monogamy prevails; for, since every male or female has his predestined mate, there is no room for communism. The author's treatise rests upon the fundamental assumption that primitive relationships are merely "space-relationships."[182] They do not arise in notions of descent. They are determined by the fixed spaces occupied by each sex, generation, and individual in the Hordenlager or camping-place.[183] Every male finds his predestined wife in the corresponding room or division on the opposite side of the sleeping-space; each brother thus marrying the sister nearest to himself in the order of birth. This ideal life of the horde is brought to an end through the rise of the family. The family (from famel, a "servant") is the very opposite of the horde of free and equal members, originating as it does in subjection and servitude. Almost simultaneously the family develops two forms, the androcratic and the gynocratic. Each originates in capture[184] which, under the influence of the conception of private property, yields to purchase. In the androcratic family, the woman becomes a slave-wife; in the gynocratic, the man becomes a slave-husband.[185] Polyandry is the natural product of the gynocratic, as is polygyny of the androcratic family. Originally each of these forms of the family is part "maternal" and part "paternal," in the ordinary sense. But gradually, under the influence of adoption, aided by purchase, the horde is broken up and modern forms of the family arise.[186]

II. MORGAN'S CONSTRUCTIVE THEORY

The doctrine of the primitive horde as the starting-point of social evolution has a special interest in connection with the researches of Lewis H. Morgan and J. F. McLennan. Though their principal works appeared subsequently to that of Bachofen,[187] each has reached his conclusions independently; and each, rejecting the patriarchal family as the primordial unit, has set forth what may be called a "constructive" theory of uniform social progress. In the hands of each marriage and the family are made to pass through an ascending series of phases for all mankind. Unquestionably valuable as are their contributions to the material of sociological science, seldom have there been seen more striking examples of hasty generalization than appear in the theoretical parts of their work.

This is particularly true of the theories of Morgan;[188] although in his Systems of Consanguinity he has with prodigious labor erected a monument of scientific research whose vast importance for the early history of human social relations is by no means yet definitively settled; and whose Ancient Society, aside from its speculative features, has the distinction of first clearly identifying the gentile organization of the Greeks and Romans with that of the red race of the western continents. Starting with the organization of society "on the basis of sex," as illustrated by the so-called class or group-marriages of the Australian Kamilaroi, he proceeds to discuss at length the gentile systems of the American Indians and the classic nations.[189] Originally relationship is traced in the female line, and intermarriage is prohibited within the gens. The gens is older than the monogamic family. It cannot have the family as its constituent unit, because it is composed, not of entire families, but of parts of families.[190]

The earliest phase of sexual relations among primitive men is promiscuity. Following this are five successive stages or forms of marriage and the family, shading into each other, and each running a "long course in the tribes of mankind, with a period of infancy, of maturity, and of decadence."[191] Of these forms the first, second, and fifth are "radical," that is, each developing a distinct system of consanguinity. These systems of consanguinity "resolve themselves into two ultimate forms, fundamentally distinct." One is the classificatory and the other the descriptive. "Under the first, consanguinei are never described, but are classified into categories, irrespective of their nearness or remoteness in degree to Ego; and the same term of relationship is applied to all the persons in the same category." Under the second, which came in with monogamy and prevails among the Aryan, Semitic, and Uralian peoples, "consanguinei are described either by the primary terms of relationship or a combination of these terms, thus making the relationship of each person specific."[192] The classificatory systems of consanguinity, it should be carefully noted, are more tenacious than the forms of marriage, their nomenclatures often surviving long after the actual relationships they denote have ceased to exist.

The first form of the family in Morgan's series is the consanguine,[193] based on the intermarriage of brothers and sisters, own and collateral, in a group. Though now extinct, this form is thought once to have been universal, rude survivals being found even in the present century among the Hawaiians. But the evidence of its former existence upon which Mr. Morgan relies as conclusive is the Malayan system of consanguinity, which he assumes could only have been produced by it. This system is found among the Maoris, the Hawaiians, and other Polynesians. Anciently it may have prevailed generally in Asia; and it lies at the basis of the Chinese relationships. The Malayan system is classificatory. "The only blood-relationships are the primary," being comprised in five categories. These are parent, child, grandparent, grandchild, brother and sister. Thus consanguine marriage "found mankind at the bottom of the scale" of social progress.

In course of time, however, its evils were perceived and the second form of the family arose. This is the Punaluan,[194] resting on the intermarriage of several sisters in a group with each other's husbands; or on that of several brothers in a group with each other's wives; marriage between brothers and sisters not being permitted. "The Punaluan family has existed in Europe, Asia, and America[195] within the historical period, and in Polynesia within the present century," the most interesting example being afforded by the Hawaiians. It is an outgrowth of the consanguine family "through the gradual exclusion of own brothers and sisters from the marriage relation."[196] With it arose the organization into gentes, whose "fundamental rules" in the archaic form are exogamy and relationship in the female line. The Punaluan family co-operating with the gentile organization,[197] produced the Turanian or Ganowánian system of consanguinity, which is also classificatory.[198] This is described by Morgan as "simply stupendous," recognizing "all the relationships known under the Aryan system, besides an additional number unnoticed by the latter."[199]

But forces were now operating within the Punaluan family which were destined to transform it. "From the necessities of the social state," there was more or less pairing from the first, "each man having a principal wife among a number of wives, and each woman a principal husband among a number of husbands." Moreover, the fuller development of the gentile organism, with its rule of exogamy, tended to foster a sentiment hostile to the intermarriage of near kindred and, in other ways, to produce a scarcity of women available for marriage within the Punaluan groups, thus leading to wife-capture and wife-purchase. Under these influences arose the Syndiasmian, or third general type of the family, based upon the marriage of single pairs, often temporary and without exclusive cohabitation. It is found among the Senaca-Iroquois and many other American tribes, among the Tamils of South India, and some other races of Asia.[200] This family did not produce a distinct system of consanguinity, the peoples having it still retaining the Turanian system.[201] The next, or Patriarchal, family, like the Syndiasmian, is "intermediate," not being "sufficiently influential upon human affairs to create a new, or modify essentially the then existing system of consanguinity."[202] It is found particularly among the Semites and Romans, and is characterized by the "organization of a number of persons, bond and free, into a family under paternal power, for the purpose of holding lands, and for the care of flocks and herds." The Syndiasmian, and in a less degree the Patriarchal, constitute the transitional stage in the development of the Monogamic family. Its rise was especially fostered by the influence of property and the increase of the paternal power, leading to the change from the female to the male line of descent. It produced the system of consanguinity prevailing among the Uralian, Semitic, and Aryan peoples.[203]

Such, sketched in hasty outline, is the symmetrical structure which the author of the Ancient Society has erected. But it has not been able wholly to withstand the shock of adverse criticism. The argument rests on too narrow a basis of investigation, and it is sometimes contradictory in its details. Its real foundation is the assumption that the nomenclatures of the classificatory systems of relationship must necessarily denote actual relationships. The truth of this assumption, however, is not self-evident. Other explanations of their meaning, some of them simpler and far more probable, have been offered. In the first place, it is evident that Morgan was misled by Fison's account of the Kamilaroi class-marriages.[204] Only in Australia was he able to find in existence, as he believed, a social organization upon the basis of sex. Yet it is by no means established that communal or even group-marriage has ever prevailed among the Australian aborigines. The criticism of Mr. Curr has raised doubt as to the trustworthiness of Fison's theory, although it may not have entirely shattered it.[205] According to Curr, the class-system is an ingenious arrangement to prevent close intermarriages. Even first cousins may not marry.[206] The Australian is very jealous of his wife, who may be betrothed to him in childhood. Wife-lending occurs, but it is not sanctioned by custom. The use of a single word for different relationships, as for father and father's brother, is not an evidence of former group-marriage, but of "poverty of language."[207] Nevertheless the Australian nomenclature is richer in terms of relationship than has been assumed by Mr. Fison. "There is hardly an Australian vocabulary in print" in which distinct translation of terms for "uncle, aunt, nephew, niece, sister-in-law, and son-in-law" do not occur.[208]

Mucke, as we have already seen, explains the classificatory system as being a survival of the primitive "space-relationships" of the primitive horde.[209] By Kautsky also its origin is traced to the horde in which "hetairistic monogamy" prevailed, and in which blood-relationship with the parents was not regarded. The classes, therefore, have nothing to do with descent, but each embraces all the individuals of a single generation under a common name.[210]

On the other hand, McLennan, in his well-known controversy with Morgan,[211] insists that the system of nomenclature is merely a "system of mutual salutations," urging the fact that most of the peoples having it possess also "some well-defined system of blood-ties."[212] Yet he believes that the Malayan nomenclature, which lies at the basis of Morgan's classificatory system, "had its origin in some early marriage-law."[213] Starcke criticises this inconsistency,[214] and comes to the conclusion, after examination of the whole question, that the "nomenclature was in every respect the faithful reflection of the juridical relations which arose between the nearest kinsfolk of each tribe. Individuals who were, according to the legal point of view, on the same level with the speaker, received the same designation."[215] In substantial harmony with this opinion are the results of Westermarck's researches.[216] According to his view the classificatory nomenclatures are merely terms of address, used to denote the sex, relative age, or the "external, or social relationship in which the speaker stands to the person whom he addresses."[217]

These criticisms have not gone unchallenged. More recent and more detailed examination of the classificatory nomenclatures has thrown new light on their meaning; although their origin in promiscuity or "group-marriage" has not been conclusively established. Thus Cunow, who in general accepts the former existence of group-marriage among various peoples, and even finds traces of it in Australia,[218] denies that the Australian class-nomenclatures are derived from original group-relations;[219] nor are they, as Westermarck believes, ever employed as mere empty terms of polite or respectful address.[220] The class-systems arose in a very early recognition of three generations or stages of seniority, in order to hinder sexual relations between relatives in the ascending and descending line.[221] For this reason, and because of the existence among some backward tribes of significant terms of kinship, individual marriage must as a general rule have existed among the Australian natives from the "earliest times."[222] Thus, "in its original form," the author concludes, "the division into classes is a striking confirmation of Morgan's theory, that the first step in the development of systems of relationship consists in the prevention of sexual union between parents and children in the wide sense."[223] For the same reason it follows that intermarriage between the nearest collateral relatives may not have been excluded.

Much more radical are the conclusions reached by Kohler in the monograph in which, by a minute examination of Morgan's tables and other materials, he seeks to establish the genetic relations subsisting between "totemism, group-marriage, and mother-right," as they appear among the Dravidians, the Australians, and the American aborigines. The researches of Curr and Westermarck are criticised as being too general and as lacking in rigid scientific method.[224] Abundant "survivals," such as the levirate, wife-lending, and, above all, the class-system, seem to demonstrate the former existence of group-marriage in Australia; and in the same way the same result is reached for the other peoples considered. The "key" to the problem is found in totemism, one of the most "formative and vitalizing impulses of mankind. In totemism lies the germ of the future family and state."[225] It is the characteristic feature of the social and religious life of the American Indians. From its very nature totemism favors the rise of mother-right and group-marriage. No person can belong to more than one totem, which is therefore of necessity exogamous. Choice must be made between the maternal and the paternal line—for totemism implies the blood-bond. This choice naturally leads directly to mother-right; since the relation of mother and child is the central fact in the genesis of social experience. The maternal system precedes the paternal, and no trustworthy examples of the opposite evolution have been discovered.[226] Furthermore, totemism leads straight to group-marriage. For if two totem-groups may intermarry, it follows that the "men of one totem may marry women of the other and vice versa." With kinship counted in the maternal line, this fact implies that a man may mate with his own daughter; while the union of mother and son or brother and sister would be excluded because of the identity of their totem.[227] Totemism is thus a means of differentiating matrimonial classes. "The whole history of group-marriage," the author concludes, "is a history of the restriction of marriage from totem to totem by the separation of under-totems through which marriage is subjected to definite conditions." Totemistic group-marriage appears to be the "starting-point" of social culture for all the races of mankind. Whether a more primitive stage of promiscuity may have preceded it, the author in this paper does not undertake to establish.[228]

Similar results are reached by Spencer and Gillen, who have given a remarkably clear and minute account of matrimonial, tribal, and totemistic institutions in central Australia. So far as the Australians are concerned, the theory that the classificatory nomenclatures are merely terms of address is positively rejected.[229] "When, in various tribes, we find series of terms of relationship all dependent upon classificatory systems such as those now to be described, and referring entirely to a mutual relationship such as would be brought about by their existence, we cannot do otherwise than come to the conclusion that the terms do actually indicate various degrees of relationship based primarily upon the existence of inter-marrying groups.... Whatever else they may be, the relationship terms are certainly not terms of address, the object of which is to prevent the native having to employ a personal name. In the Arunta tribe, for example, every man and woman has a personal name by which he or she is freely addressed by others—that is, by any, except a member of the opposite sex who stands in the relationship of 'Mura' to them, for such may only on very rare occasions speak to one another."[230] The fundamental idea of the Australian classes is "that the women of certain groups may marry the men of others." It is a device for limiting and defining the inter-marriage of persons supposed to be of common blood.[231]

Crawley likewise holds that the terms of the classificatory systems "are terms of kinship and not terms of address;" although being "in origin terms of relation," so far they are "terms of address also." For "all of the terms can be used as terms of address, just as our terms of relationship can be so used." The classificatory system, in some cases, appears clearly as a device to assist nature in confining marriage within the same generation.[232]

The results of the most recent research, therefore, seem to have advanced our knowledge of the early social condition of mankind; but not to have definitively settled the problem of the former existence of communistic marriage. One rises from an examination of the literature relating to totemism and to the classificatory systems of relationship with a feeling that much more material must be gathered and exploited before we shall escape entirely from the domain of speculation as to their full meaning.[233]

III. McLENNAN'S CONSTRUCTIVE THEORY

McLennan's theory[234] starts also with man in a condition, as he conceives it, resembling that of other gregarious animals. The unions of the sexes are "probably, in the earliest times, loose, transitory, and in some degree promiscuous."[235] There is no idea of consanguinity, though men may always have been held together by that "feeling of kindred" which arises in "filial and fraternal affection."[236] Everywhere when society emerges from this condition kinship is traced in the female line. Originally paternity is uncertain,[237] hence the recognition of relationship through the mother must of necessity have preceded the parental and the agnatic systems;[238] and this order of development is never reversed.

Though the "filial and fraternal affections may be instinctive," they are "obviously independent of any theory of kinship, its origin or consequences; they are distinct from the perception of the unity of blood upon which kinship depends; and they may have existed long before kinship became an object of thought." Such a group may have been held together chiefly "by the feeling of kindred;" but the "apparent bond of fellowship ... would be that they and theirs had always been companions in war or the chase—joint-tenants of the same cave or grove."[239] Slowly the idea of blood-relationship arose; and eventually observation led to a recognition of the system of kinship through the mother. Further than this, so long as paternity remained uncertain, primitive men could not go. For the theory in question, therefore, the maternal system of kinship existing in the homogeneous "group-stock" is the social fact of fundamental importance. But primitive man was rude, ignorant, relatively helpless. "Before the invention of the arts, and the formation of provident habits, the struggle for existence must often have become very serious. The instincts of self-preservation, therefore, must have frequently predominated." Society would tend toward one common type in which there was little place for the "unselfish affections." In this "struggle for food and security" the balance of the sexes would be disturbed. "As braves and hunters were required and valued, it would be to the interest of every horde to rear, when possible, its healthy male children." The weaker sex must obey the cruel law requiring the "survival of the fittest." Hence arose the common, perhaps general, practice of female infanticide.[240] The result of this disturbance of the balance of the sexes, caused by female infanticide, was a series of customs or phenomena of great sociological interest, requiring notice in the order in which they are supposed to have arisen.

1. The natural consequence of the diminution in the number of women was to enhance their relative importance. Every woman would now have several wooers. Rivalry was fierce and "unrestrained by any sense of delicacy from a copartnery in sexual enjoyments." Quarrels and divisions within the horde would be of frequent occurrence. "These were the first wars for women, and they went to form the habits which established exogamy." But, if complete social disintegration would be avoided, self-preservation required a compromise. A rearrangement in smaller hordes took place; and so "we arrive at last at groups within which harmony was maintained through indifference and promiscuity;" where women, "like other goods," were held in common; and "children, while attached to mothers," belonged to the horde.[241] We have reached in fact, as the first result of female infanticide, the "totem gens" or group of totem kindred, having a common name, taken from some plant, heavenly body, or animal, whose image is sometimes tattooed upon their bodies, and which is sometimes revered as an ancestor, sometimes as an ancestral god.[242]

2. The next institution originating in scarcity of women is polyandry, a form of sexual relations which, by the adherents of the horde-theory, is regarded as the earliest type of the family, properly so called: a family resting upon marriage, that is, upon a courtship "of men and women, protected by public opinion."[243] It is of special interest, because in its progressive phases it is held to be the medium of transition from the maternal to the parental and agnatic systems of kinship; and, therefore, through the aid of contract in the form of wife-purchase, to modern conceptions of the marriage relation. Polyandry is represented as a universal phase of social evolution, constituting the first general modification of promiscuity.[244] Of this there are two principal forms with intermediate stages. In Nair[245] polyandry, the lowest type, we find a condition of sexual relations closely bordering upon the grossest communism. The "wife lives not with her husbands, but with her mother or brothers;" and, under certain "restrictions as to tribe and caste," she is free to choose her husbands or lovers, these not being necessarily related to each other. Here kinship and inheritance are, of course, in the female line. "No Nair knows his father, and every man looks upon his sister's children as his heirs."[246] In a transitional stage the wife has a home of her own, cohabiting with her husbands according to fixed rules. The highest type of polyandry is found in Tibet; and in this case there is a close approach to the essential elements of the modern family. The wife lives in the home of her husbands, who are near relatives, usually brothers. It is the prerogative of the eldest brother to choose the wife. All the children are assumed to belong to him, and, as a matter of fact, the first-born is usually known to be his. Paternity therefore is not entirely uncertain, while the father's blood is always known.[247] The same type of polyandry, somewhat more advanced, appears among the Dravidian Todas of India. Here monogamy and polyandry exist side by side. One man, for example, may have a wife exclusively his own, while his brothers may choose one in common. Usually when one brother has taken a woman to wife, and paid the dower to her parents, the other brothers or very near relatives, all living together, may gain the rights of husbands, "if both he and she consent," by simply providing their respective shares of the dower, which almost invariably consists of from one to four buffaloes.[248] According to Marshall, "no females, whether married or single, possess property; but, under all circumstances of life, are supported by their male relations, being fed from the common stock." When "a father dies, his personal property is divided equally among all his sons. If the deceased, being an elder brother, should have no sons, his next brother inherits all the property. All children of both sexes belong to the father's family; and inheritance runs through the male line only. Thus (1) if a widow should re-marry, her sons by both marriages have claims on their respective father's property. (2) If one or more women are in common to several men, each husband considers all the children as his—though each woman is mother only to her own—and each male child is an heir to the property of all of the fathers." Moreover, there exists a kind of levirate. "In order to avoid the complications that would arise, in the matter of food and the guardianship of property, from the re-marriage of widows, if they entered other families taking their children with them, either a brother or other near relation of her deceased husband takes her to wife." She "remained in the family" is the Toda expression.[249] "Now if we consider that one or more brothers may each become the husband of separate wives by virtue of having each paid a dower, and that younger brothers as they grow to age of maturity, and other brothers as they become widowed, may each either take separate wives or purchase shares in those already in the family, we can at once understand that any degree of complication in perfectly lawful wedded life may be met with, from the sample of the single man living with a single wife to that of the group of relatives married to a group of wives. We begin to see also why tribes following polyandrous habits endeavor to prevent further complications by making widows 'remain in the family.'" It follows that economic motives even here are influential in molding matrimonial institutions. The same motives, the scarcity of subsistence, are likewise the main cause of the very extended female infanticide which widely prevailed previous to 1822, when the Madras government "put a pressure on the Todas, in order to impel them to forsake their murderous practice." It was formerly the habitual custom to smother "all daughters in every family, except one or sometimes two."[250] The Todas are an in-and-in breeding people. "Although there are degrees of kinship, within whose limits the union of the sexes is held in actual abhorrence, yet half brothers and sisters are not included amongst the objectionables."[251]

Accordingly, through polyandry, it is held, the transition to the parental or paternal system of kinship becomes possible, and sooner or later it usually takes place. Among the Todas father-right is fully established. In Tibet the inheritance goes to the brothers in the order of birth; and, failing these, to their eldest son, who, as already seen, is often known to be the eldest brother's child. This rule, it is maintained, may readily lead to agnation. Nevertheless the primitive custom of mother-right was very tenacious. Resisted by the gentile organization and the blood-feud, the transition was slow and painful. It was facilitated by contract and initiation.[252] A woman might be bought with the understanding that the children should belong, not to her own clan, but to that of her husband. Or, when contract alone was not sufficient to overcome the resistance of religion and the blood-feud, the same result might be obtained by purchase, followed by initiation into the sacred rites of the husband's kindred.[253] Moreover, as in Tibet and among the Todas, wife-purchase or its survival is sometimes found in connection with polyandry.[254]

McLennan believes that Tibetan polyandry has been nearly, if not quite, universal, and that it is an "advance upon the Nair type." Many evidences of its alleged actual existence in present and former times are adduced; and where the institution is not found reliance is placed upon the presence of certain customs, such as the Niyoga, or the "appointed daughter," of the Hindus, the Hebrew levirate, and the inheritance by brothers, which are held to be its survivals.[255]

3. The disparity in the number of women would next produce the custom of wife-capture. The normal condition of primitive men is assumed to be that of strife.[256] Women would naturally be sought as the most valuable of the spoils of war. This would lead to polygyny. Since there can be no certainty as to fatherhood where the practice of seizing the women from hostile tribes obtains, wife-capture is the means of maintaining the system of counting kinship through the women only; and the existence of that system, at some time, must be inferred wherever wife-capture or its form in the marriage ceremony is discovered.

4. Wife-capture leads directly to exogamy, or the rule of not marrying within the group of recognized kindred; that is, at first, among those having the same totem. Exogamy is therefore not regarded as the result of a prejudice against intermarriage of those related by blood. For a time, doubtless, marriage within and without the group was practiced indifferently, as pleasure or opportunity favored. But eventually the possession of a foreign woman was looked upon as the more honorable or respectable; and so at last marriage within the kindred was entirely forbidden. With the rise of wife-capture the original homogeneity of the group gave place to a growing heterogeneity. Soon many alien stocks were represented in the horde. Where polygyny existed, or where several wives were taken in succession, the same family might comprise children representing several totems. These children like their mothers were counted as foreigners. Thus a modified form of exogamy arose. "So far as the system of infanticide allowed, the hordes contained young men and women accounted of different stocks, who might intermarry consistently" with the original rule of exogamy. "Hence grew up a system of betrothals, and of marriage by sale and purchase." But the effect of the system of kinship through males, when it superseded the maternal system, was to "arrest the progress of heterogeneity," and to "restore the original condition of affairs among exogamous races, as regards both the practice of capturing wives and the evolution of the forms of capture."[257]

It would be ungrateful not to acknowledge freely the service which McLennan and his adherents have rendered to the social history of mankind. They have brought to light a mass of very important facts which it is highly beneficial for us to know. It cannot be denied that wife-capture, exogamy, and the custom of taking kinship from the mother have very widely prevailed among primitive races. It is not so certain, however, that the right explanation of their origin or of their relation to one another has been given. In the first place, criticism, notably that of Herbert Spencer,[258] has detected fatal weakness and inconsistency in the argument by which Mr. McLennan has sought to establish his theory. It is doubtful, for instance, whether female infanticide has been so important a factor in social evolution.[259] But, granting that it has generally prevailed, it is hard to see how this would greatly disturb the "balance of the sexes." For "tribes in a state of chronic hostility are constantly losing their adult males, and the male mortality so caused is usually considerable. Hence the killing many female infants does not necessitate lack of women: it may merely prevent excess." McLennan's fundamental "assumption is therefore inadmissible."[260] Again it is held that female infanticide, "rendering women scarce, led at once to polyandry within the tribe, and the capturing of women from without." But "where wife-stealing is now practiced it is commonly associated with polygyny;"[261] while conversely, polyandry does not "distinguish wife-stealing tribes," such as the Tasmanians, Australians, Dakotas, and Brazilians. "Contrariwise, though it is not a trait of peoples who rob one another of their women, it is a trait of certain rude peoples who are habitually peaceful;" for instance, the Eskimo, "who do not even know what war is." Furthermore, if wife-capture and exogamy are at once practiced by a cluster of adjacent tribes, the scarcity of women would not be relieved. Inevitably the weaker tribes would "tend toward extinction;" and in the meantime, if a part only of their female infants were killed, they must deliberately "rear the remainder for the benefit" of their enemies.[262] Nor, as Starcke has pointed out, is there anything in a "scarcity of women which could lead a community accustomed to promiscuous intercourse to adopt polyandry; on the contrary, such a scarcity would make it more difficult to set limits" to promiscuity. "Marriage, or the exclusive possession of one woman by one or more men, would become more easy in proportion to the increase in the number of women, since the conflict between the lusts of the men would necessarily become less intense."[263] McLennan believes that exogamy has "been practiced at a certain stage among every race of mankind;" and that endogamy, or the custom of marrying within the kindred, is a "form reached through a long series of social developments."[264] Yet, inconsistently with this, he admits that "the separate endogamous tribes are nearly as numerous, and they are in some respects as rude, as the separate exogamous tribes." He goes even farther, declaring that among a variety of tribes, belonging to "one and the same original stock," endogamy and exogamy are found existing side by side.[265]

Such are some of the results gained simply from an examination of the reasoning of McLennan. They have been here enumerated, not only because they afford an excellent illustration of the extreme complexity of social problems, but also because they may warn us against the perils of hasty speculation. It is not merely in matters of detail that the doctrine of the horde and promiscuity has met with resistance. Its very foundations have recently been powerfully assaulted by the adherents of a totally different view of the origin and development of the human family. How the phenomena of marriage and kinship will appear when seen in a new light, we shall next try to discover.

CHAPTER III
THEORY OF THE ORIGINAL PAIRING OR MONOGAMOUS FAMILY

[Bibliographical Note III.—The theory of the pairing family is not so much the result of a reaction against the theory of promiscuity as it is a consequence of the perception that the problems of society can only be solved by appealing to the laws of human life and organic evolution. Hence Starcke's highly original Primitive Family (New York, 1889), and Westermarck's more elaborate and very able treatise on Human Marriage (London and New York, 1891), showing the influence in some passages of Starcke's acute reasoning, may fairly be regarded as epoch-making. Important also are Wake's Marriage and Kinship (London, 1889) and Letourneau's L'évolution du mariage (Paris, 1888), which is supplemented by his Sociology Based upon Ethnology (London, 1893). These writers have carried farther the suggestions of Darwin, Descent of Man and Animals and Plants under Domestication; and Spencer, Principles of Sociology (New York, 1879), who had already thrown doubt upon the communistic theory. A similar general conclusion is reached in the valuable monograph of Kautsky, "Entstehung der Ehe und Familie," in Kosmos, XII (Stuttgart, 1882), whose original "hetairism" is but "defective monogamy;" and Peschel's Races of Man (London, 1889) tends in the same direction. Hildebrand likewise rejects the communistic theory in his inaugural address on Das Problem einer allgemeinen Entwicklungsgeschichte des Rechts und der Sitte (Graz, 1894); and this work should be read in connection with his Recht und Sitte auf den verschiedenen wirthschaftlichen Kulturstufen (Jena, 1896). On the other hand, Kulischer, in "Die geschlechtliche Zuchtwahl bei den Menschen in der Urzeit," in ZFE., VIII, defends original communal marriage against the views of Darwin. Of special value, likewise, for this chapter are Grosse, Die Formen der Familie (Freiburg and Leipzig, 1896); which is favorably examined by Cunow, "Die ökonomischen Grundlagen der Mutterherrschaft," in Neue Zeit, XVI; Keane, Ethnology (2d ed., Cambridge, 1896); idem, Man: Past and Present (Cambridge, 1899); Frerichs, Naturgeschichte des Menschen (2d ed., Norden, 1891); Bagehot, Physics and Politics (London, 1872); as are also the works of Posada, Crawley, Lang, and Hellwald elsewhere mentioned.

For the family among the lower animals in addition to Letourneau, Hellwald, and Westermarck, consult Brehm, Tierleben (Leipzig and Vienna, 1891); his Bird-Life (London, 1874); Herman Müller, Am Neste (Berlin, 1881); Schäffle, Bau und Leben des socialen Körpers (Tübingen, 1881); Espinas, Des sociétés animales (2d ed., 1878); Groos, Die Spiele der Thiere (Jena, 1896), or the English translation (New York, 1898); and Wagner, "Die Kulturzüchtung des Menschen gegenüber der Naturzüchtung im Tierreich," in Kosmos, 1886, I. In this connection read also Houzeau, Études sur les facultés mentales des animaux (Mons, 1872); Vignoli, Ueber das Fundamentalgesetz des Intelligenz im Tierreiche (Leipzig, 1879); and Salt, Animals' Rights (New York, 1894).

On the problems of sex and kinship mentioned in the text see Geddes and Thompson, Evolution of Sex (New York, n. d.); Ellis, Man and Woman (London, 1896); Finck, Primitive Love (New York, 1899), vigorously attacking some of Westermarck's theories; his Romantic Love and Personal Beauty (London, 1887); Duboc, Psychologie der Liebe (Hannover, 1874); Mantegazza, Physiologie der Liebe (30th ed., Berlin, 1897); Klebs, Verhältniss des männ. und weibl. Geschlechts in der Natur (Jena, 1894); Schroeder, Das Recht in der geschlechtl. Ordnung (Berlin, 1893); Thomas, "Relations of Sex to Primitive Social Control," and his "Difference in the Metabolism of the Sexes," both in Am. Journal of Sociology, III (1898); Sadler, The Law of Population (London, 1830); Starkweather, The Law of Sex (London, 1883); Hofacker and Notter, Uber die Eigenschaften ... welche sich auf die Nachkommen vererben (Tübingen, 1827); Ploss, Das Weib (Leipzig, 1895); also his Ueber die das Geschlechtsverhältniss der Kinder bedingenden Ursachen (Berlin, 1859); Schenk, Einfluss auf das Geschlechtsverhältniss (3d ed., Magdeburg and Vienna, 1898); the brilliant monograph of Düsing, Die Regulierung des Geschlechtsverhältnisses (Jena, 1884); Huth, Marriage of Near Kin (2d ed., 1887); Lewkowitsch, "Die Ehen zwischen Geschwisterkindern and ihre Folgen," in ZFE., VIII; and Mitchell, "Blood-Relationship in Marriage," in Mem. of London Anth. Society, 1865, II, 402 ff.

Several important points are treated in Tylor's Early History of Mankind (New York, 1878); and in his Method of Investigating Institutions. See also Kovalevsky, Tableau des origines et de l'évolution de la famille (Stockholm, 1890); Swinderen, De Polygynia (Groningae, 1795); and for a curiosity, read Premontval, La monogamie (1751). In general, the literature cited in Bibliographical Note II has been used, and so need not here be described.]

I. THE PROBLEM OF PROMISCUITY

The researches of several recent writers, notably those of Starcke and Westermarck, confirming in part and further developing the earlier conclusions of Darwin and Spencer, have established a probability that marriage or pairing between one man and one woman, though the union be often transitory and the rule frequently violated, is the typical form of sexual union from the infancy of the human race. The problem is not yet fully worked out; but if in the end the theory of original promiscuity must be abandoned, and the pairing or monogamous family accepted as the primitive social unit, it is not because of the spiritual and moral superiority of man, as compared with other animals, but because sexual communism as a primitive and general phase of life appears to be inconsistent with the biological, economic, and psychological laws which have determined the general course of organic evolution. Strongly supported and highly probable as is the pairing or monogamic theory, it must be clearly understood in the outset that it is still only a theory and has not yet reached the stage of demonstration. It will hardly do, however, to set aside the researches of its adherents as being superficial and devoid of real scientific method; for the champions of the opposite doctrine of primitive communism are nothing if not daring, and their sweeping generalizations often rest solely on comparatively few "survivals" of alleged conditions which are absolutely "prehistoric."[266]

It may be impossible to prove that there ever was a uniform primitive state. "So long as we are within the sphere of experience," says Starcke, "we cannot begin by assuming that there was at any time only a single human community. Experience begins with a plurality of communities, and the single community of which we are in search must be found on the indeterminate boundary between man and animals."[267] Indeed, it seems certain that if we are ever to understand the character of the earliest forms of human marriage and the human family, we must begin by studying the family and marriage as they exist among other and less advanced members of the animal world.[268] Biology, declares Letourneau, is the starting-point of sociology.[269] In this view Starcke coincides. "We have no reason to regard the social life of man as a recent form. Not only do the same psychical forces which influence gregarious man also influence the gregarious animal; probability also leads us to infer that the primitive communities of mankind are derived from those of animals. Since man in so many respects only goes on to develop the previous achievements of animal experience, it may be supposed that he made use of the social experience of animals as the firm foundation of his higher advancement." Besides, "there are human communities which are far less firmly established than those of animals;" and "it may even be asserted that the social faculty is positive in animals and negative in man," for man is "less subservient to instinct."[270] "If we want to find out the origin of marriage," says Westermarck, "we have to strike into another path, the only one which can lead to the truth, but a path which is open to him alone who regards organic nature as one continued chain, the last and most perfect link of which is man. For we can no more stop within the limits of our own species, when trying to find the root of our psychical and social life, than we can understand the physical condition of the human race without taking into consideration that of the lower animals."[271]

Accordingly three principal arguments against the existence at any time of a general state of promiscuity have been advanced:

First is the so-called zoölogical argument, based on a comparison of the sexual habits and institutions of animals with those of the lowest races of men. In the outset it is important to observe that the physical differentiation of the sexes is itself a product of the struggle for existence. This important fact is made the starting-point of the argument by which Hellwald[272] finds the elements of the human mother-group and of mother-right in earlier animal experiences. Among the lowest members of the animal kingdom there is no individual distinction of sex. That first makes its appearance when the "artistically constructed organism, in order to sustain itself in the process of evolution, is called upon to perform a wider series of functions." Thus "when an animal is forced to greater exertion, when it must work in order to exist, when unresistingly it can no longer suffer the stream of events to press upon it, but withstands it and seeks in it to follow its own course, then the separation of the sexes appears, and, indeed, as a division of labor created by nature for the purpose of developing species." With further evolution, male and female characteristics become more pronounced, in response to the special functions which each sex is called upon to perform. The same process continues in the case of man. To see in him anything other than the "highest and foremost representative of the animal world, one must be drunk with metaphysical nectar, and nothing is better fitted than comparative physiology to humble one's pride in this regard." For man's entire physical organization is "homologous to that of the higher species of animals." Accordingly, the lower a group of men stands on the ladder of culture, the less marked is the "bodily differentiation of the sexes." Among various backward peoples there is relatively slight difference in outward appearance between the men and the women.[273] The growth of sexual variation in physical structure keeps pace exactly with progress in civilization. This progress depends mainly on two original forces. Of these "without doubt the mightiest is hunger," the need of nourishment. For everywhere on earth the "first thought and striving" of living beings is the "stilling of hunger." Next to the struggle for food, the sexual and pairing impulse is the most potent factor in the genesis of society. The former influence, it is important to observe, is the more constant and the more imperative. The latter grows and becomes more acute with increase in refinement and the consequent development of the nervous system.[274] It follows that in the origin of social institutions the erotic or pairing impulse, however important, is a less cogent genetic force than the economic necessity of a food supply.

The lives of the lower animals reveal a great variety of sexual relations. The lowest form, and perhaps the most frequent, is that of unlimited promiscuity.[275] Among the invertebrates the preservation of the young is left almost wholly to chance. The duties of the parents are limited mainly to the functions of reproduction. "In the lowest classes of vertebrata, parental care is likewise almost unheard of." It "rarely happens that both parents jointly take care of their progeny."[276] But the chelonia, or tortoise group, are "known to live in pairs;" and here we reach, among animals, the first trace of the family, properly so called. "The chelonia form, with regard to their domestic habits, a transition to the birds, as they do also from a zoölogical and, particularly, from an embryological point of view." Who that has experienced the keen delight afforded by watching the domestic habits of birds, from the building of the nest to the teaching of the young to make the first wavering trial of its wings, cannot bear witness to the high development of marriage and the family among them? The great work of Brehm supplies abundant evidence of their human-like social life.[277] "Parental affection," summarizes Westermarck, "has reached a very high degree of development, not only on the mother's side, but also on the father's. Male and female help each other to build the nest, the former generally bringing the materials, the latter doing the work. In fulfilling the numberless duties of the breeding season both birds take a share. Incubation rests principally with the mother, but the father, as a rule, helps his companion, taking her place when she wants to leave the nest for a moment, or providing her with food and protecting her from every danger. Finally, when the duties of the breeding season are over, and the result desired is obtained, a period with new duties commences. During the first few days after hatching, most birds rarely leave their young for long, and then only to procure food for themselves and their family. In cases of great danger, both parents bravely defend their offspring. As soon as the first period of helplessness is over, and the young have grown somewhat, they are carefully taught to shift for themselves; and it is only when they are perfectly capable of so doing that they leave the nest and the parents."[278] The bird family is usually monogamic, and the marriage is lasting. Birds are generally faithful to the marriage vow; and this is particularly true of the females.[279] "With the exception of those belonging to the gallinaceous family, when pairing," they do so "once for all till either one or the other dies.[280] And Dr. Brehm is so filled with admiration for their exemplary family life that he enthusiastically declares that 'real genuine marriage can only be found among the birds.'"[281]

With the lower mammals the union of the sexes is generally of short duration, often only for a single birth, though in several species the parents remain together even after the arrival of the young. But among the higher members examples of monogamic marriage are not infrequent, such being the case with animals of prey.[282] As a rule, the quadrumana live in pairs. Gorillas, however, are said sometimes to be polygynous. "According to Dr. Savage, they live in bands, and all his informants agree in the assertion that but one adult male is seen in every band."[283] But monogamy is perhaps most common. M. du Chaillu declares that he found "almost always one male with one female, though sometimes the old male wanders companionless."[284] The orang-utan and the chimpanzee, like the gorilla, also live in families.[285] Of a truth, promiscuity is far from universal in the pre-human stage.

Yet it would be easy to overestimate the value of the argument based upon the sexual relations of the lower animals. But it will not do with Kohler and Lippert to set it aside as entirely irrelevant.[286] Upon the precedents afforded by "anthropomorphic" species in particular, as Hellwald justly insists, no "slight weight should be placed;" for these are "not merely the highest organized animals, but they must also be regarded as the nearest animal relatives of man."[287] Indeed, the transition from the family as it exists among the quadrumana to that of the least-developed races of man is not abrupt, although the lowest examples of mankind yet observed are advanced beyond the supposed primitive human stage. The broad characteristics of the one are the characteristics of the other. The "relations of the sexes are, as a rule, of a more or less durable character." There is conjugal affection. The immediate care of the children belongs to the mother. "Among mammals as well as birds," declares Espinas, "maternal love is the corner-stone of the family."[288] The father is the protector and provider, although paternal love is more slowly developed. Like the male among the lower animals, savage or barbarous man may be "rather indifferent to the welfare of his wife and children, ... but the simplest paternal duties are, nevertheless, universally recognized. If he does nothing else, the father builds the habitation, and employs himself in the chase and in war."[289]

But the argument for the pre-human origin of the elements of marriage and the family does not rest merely upon precedents of sexual habits. It is based rather upon the entire experience of animals in the hard struggle for existence. That struggle, as Hellwald suggests, forced upon them primarily the problem of food-supply, the need of a sort of economic co-operation, more lasting in its results than the pairing instinct. It is the entire social, mental, and moral product of animal experience, of living together, so well described among others by Espinas, Schäffle, Groos, and Wundt, which man in some measure inherited as a rich legacy from his humbler predecessor.[290] Accordingly Westermarck believes that marriage was probably "transmitted to man from some ape-like ancestor, and that there never was a time when it did not occur in the human race."[291] With Starcke, and in harmony with the view of Hellwald already quoted, he holds that marriage and the family cannot rest upon the sexual impulse alone. This is too transitory. Among animals it is obvious that "it cannot be the sexual instinct that keeps male and female together for months and years," for the "generative power is restricted to a certain season;" and it seems highly probable that among men a pairing season prevailed in ancient times. Thus the "wild Indians of California, belonging to the lowest races on earth," are said to "have their rutting seasons as regularly as have the deer, the elk, the antelope, or any other animals."[292] According to Powers, the California Kabinapek "are extremely sensual. In the spring when the wild clover is lush and full of blossoms and they are eating it to a satiety after the famine of winter, they become amorous. This season, therefore, is a literal Saint Valentine's Day with them, as with the natural beasts and birds of the forest."[293] The Tasmanians, the Australian Watch-an-dies, and various other peoples appear to show evidences of the same habit.[294] Vignoli reaches a similar conclusion. "The family union in which man originally finds himself is not an essentially human but likewise an animal fact, since that mode of common social life is found with the greater part of animals and always among the higher. It is the necessity of rearing the young which unites the parents and gives them a common life for a shorter or longer period; indeed in some species this marriage of love and care continues throughout their whole existence. Hence the fact of family sociality is not an exclusive product of humanity, but of the universal laws of the whole animal life upon the earth. Let it not be asserted that in man affection between the sexes and toward their offspring ... is more active, more intense, and more lasting; for it manifests itself with equal strength and sometime with equal duration between animals and toward their young. Thus man loves, cohabits, and lives socially in a primitive family community only because he is an animal and moreover an animal higher in the organic series. So the fact of the family is consummated according to the necessity of cosmic laws governing a great part of the reproductive and social activity of the animal kingdom."[295]

According to Starcke, "we are in some respects disposed to underestimate the great influence which sexual matters exert on all the concerns of social life, and the attempt is sometimes made to sever it from moral life, as a matter of which we are constrained to admit the practical existence, although, from the ideal point of view, it ought not to be. On the other hand, its influence on primitive communities has been greatly overrated." The sexual instinct, however powerful, is "devoid of the conditions which form the basis of the leading tendencies in which man's struggle for existence must be fought out." Hence primitive marriage does not rest upon the tender sentiment which we call love,[296] but "as hard and dry as private life itself," it has its "origin in the most concrete and prosaic requirements." The "common household," he continues, "in which each had a given work to do, and the common interest of obtaining and rearing children were the foundations upon which marriage was originally built."[297] Therefore, according to this view, marriage appears to be a kind of contractual relation from the beginning.[298] The conclusions of Westermarck on this point are in substantial harmony with those of Starcke: "The prolonged union of the sexes is, in some way or other, connected with parental duties.... The tie which joins male and female is an instinct developed through the powerful influence of natural selection." This instinct as well as parental affection are "thus useful mental dispositions which, in all probability, have been acquired through the survival of the fittest." So he concludes that "it is for the benefit of the young that male and female continue to live together. Marriage is therefore rooted in family, rather than family in marriage."[299] Hence it is that among many peoples "true conjugal life does not begin before a child is born;" and there are other races who "consider that the birth of a child out of wedlock makes it obligatory for the parents to marry."[300]

As a result of the first argument, then, marriage appears as a fundamental institution, whose beginnings are anterior to the dawn of human history. But there is need of a new definition, one broad enough to satisfy the demands of science. For most existing definitions are of a "merely juridical or ethical nature, comprehending either what is required to make the union legal, or what, in the eye of an idealist, the union ought to be." Hence Westermarck defines marriage, from a scientific point of view, as a "more or less durable connection between male and female, lasting beyond the mere act of propagation till after the birth of offspring;" and Starcke, in like spirit, declares that marriage in the widest sense is "only a connection between man and woman which is of more than momentary duration, and as long as it endures they seek for subsistence in common."[301]

The second or physiological argument may be very briefly stated. It rests upon the evidence, referred to by Sir Henry Maine, that promiscuous intercourse between the sexes "tends nowadays to a pathological condition very unfavorable to fecundity; and infecundity, amid perpetually belligerent savages, implies weakness and ultimate destruction."[302] Thus Dr. Carpenter, "who visited the West Indies before the abolition of slavery, well remembers the efforts of the planters to form the negroes into families, as the promiscuity into which they were liable to fall produced infertility, and fertility had become important to the slave-owner through the prohibition of the slave-trade."[303] Again "it is a well-known fact that prostitutes very seldom have children, while, according to Dr. Roubaud, those of them who marry young easily become mothers."[304] Furthermore, as Westermarck urges, "in a community where all the women equally belonged to all the men, the younger and prettier ones would of course be most sought after, and take up a position somewhat akin to that of the prostitutes of modern society."[305] Nor is the objection, that "the practice of polyandry prevails among several peoples without any evil results as regards fecundity being heard of," insuperable. For "polyandry scarcely ever implies continued promiscuous intercourse of many men with one woman;" and where it exists the relations of the woman with her husbands is often so regulated as to make the union practically monogamous.[306] In this connection also should be considered the infertility and other evils resulting from the intermarriage of near kindred.[307] For in a state of promiscuity such unions must have been very frequent; and at one stage of social development, if the theory of Morgan were to be accepted, they must have constituted the general rule.

According to Westermarck, the strongest objection to ancient promiscuity "is derived from the psychical nature of man and other animals."[308] The third or psychological argument therefore alleges the universal prevalence of sexual jealousy among the races of men.[309] Darwin declares that this passion is found among all male quadrupeds with which he is acquainted; and comes to the conclusion, therefore, that "looking far enough back in the stream of time, and judging from the social habits of man as he now exists, the most probable view is that he aboriginally lived in small communities, each with a single wife, or if powerful with several, whom he jealously guarded against all other men."[310] That jealousy is unknown among "almost all uncivilized peoples" is, indeed, asserted by many adherents of the horde theory.[311] But a mass of evidence relating to savage and barbarous races in all parts of the world shows that such assertions are without foundation. In many tribes the suspected wife is exposed to the vengeful fury of the jealous husband. For example, among the California Indians, according to Powers, "if a married woman is seen even walking in the forest with another man than her husband she is chastised by him;" and "a repetition of the offense is generally punished with speedy death."[312] So "among the Creek 'it was formerly reckoned adultery, if a man took a pitcher of water off a married woman's head and drank of it.'"[313] Women, we are told, are held in little esteem among the Innuit on the coast of Labrador; yet "the men are very jealous," and death is often the penalty for adultery on the part of either spouse.[314] Magalhães, who visited "more than a hundred villages" among "thirty tribes" of Brazilian natives, some of them "already half civilized and others still entirely free from any participation in our institutions, ideas, and pre-conceived notions," records as a result of his observations that "there exists in the Indian family all grades from institutions strict to a degree exceeding anything history tells us about down to the community of women.... Thus I know tribes where there is no marriage, and I know others in which a woman committing adultery is punished by being burned."[315] Moreover, he emphatically warns us that he is speaking here of the "uncatechised" native, not yet demoralized by missionary influence.[316] According to Dobrizhoffer, the Abipones of Paraguay are conspicuous for "conjugal fidelity;" and they are very jealous, taking swift vengeance when infidelity is suspected.[317] Souza, who "lived in Brazil, in what is now the state of Bahia, from 1570 to 1587,"[318] says that "there are always jealousies among" the wives of the polygamous Tupinambás, especially on the part of the first wife, because usually she is "older than the others and less gentle."[319] On the other hand, the Jesuit Anchieta, who was in the same country "from 1553 until his death in 1597," declares that women frequently abandon their consorts to take other men "without any feeling upon the part of the husbands; and I never saw and never heard of any Indian killing any of his wives on account of any feeling about adultery;" but his narrative reveals unmistakable evidence of the existence of sexual jealousies.[320]

In fact, among primitive peoples, as suggested by the preceding examples, death or other severe punishment is often the penalty for adultery. It is so in Polynesia, although the fault of the man is usually "condoned;"[321] as also in Micronesia, where the husband does not escape so easily.[322] Extraordinary precautions are sometimes taken to prevent marriage with an impure bride. Frequently the husband requires that the "woman he chooses for his wife shall belong to him, not during his life-time only, but after his death." Hence the widespread practice of sacrificing the wife at the death of the husband; and the frequent restraint upon the remarriage of widows is ascribed to the same cause.[323]

As a final result of his minute examination, Westermarck concludes that there is "not a shred of genuine evidence for the notion that promiscuity ever formed a general stage in the social history of mankind." The hypothesis, he declares, is "essentially unscientific." How, then, it may be asked, can the series of phenomena adduced by McLennan and others to support that hypothesis be otherwise explained?

In the first place, it is believed, the direct evidence as to the existence of races living promiscuously in ancient and modern times will not stand the test of criticism.[324] Often the statements of writers and travelers prove on examination to be erroneous. Thus, for instance, Sir Edward Belcher's assertion, that among the Andaman Islanders "the custom is for the man and woman to remain together until the child is weaned, when they separate, and each seeks a new partner,"[325] has been "disproved by Mr. Man, who, after a very careful investigation of this people, says not only that they are strictly monogamous, but that divorce is unknown, and conjugal fidelity till death not the exception but the rule among them."[326] Sometimes the "facts adduced are not really instances of promiscuity." This appears to be true, as already seen, of the alleged Australian group-marriages. So also the "communism" practiced among the Cahyapós, "who seem to be the most numerous tribe of the central plateaux of Brazil," turns out on examination to be something very different from promiscuity, resembling more the "temporary" marriages already mentioned, though combined with polygyny. "The communism of wives among them," says Magalhães,[327] "is as follows: The woman as soon as she reaches the age at which she is permitted to have relations with a man, conceives by the one who pleases her. During the period of gestation and nursing she is maintained by the father of the child, who may have others in similar charge and these others during similar periods live in the same cabin. As soon as the woman begins to work she is free to conceive by the same man or she may procure another, the charge of supporting the earlier offspring passing to the latter."[328] This institution, it is clear, involves considerable social regulation. Indeed we are particularly warned that "by communism of women is not to be understood anything like prostitution.... This distinction is the more important for the proper comprehension of the savage family, since it is certain that in those same tribes where this communism exists, prostitutes are held in great displeasure." The custom "is a mode of family existence that they judge best according to their ideas and means of living." With it Magalhães contrasts the "exclusiveness" of the neighboring Guatos of the river Plate, in "Brazilian Paraguay," who are not monogamous, each man having "one, two, or three wives according to his ability in hunting, fishing, and the gathering of the different fruits which make up the base of their food." The women are exceedingly modest. "If a Guato woman brought us a fish, some game, wild fruit," or in any way sought "something of ours that she wanted, she did it always with her eyes fixed on the ground or turned toward her husband." The related Chambioás of the Amazon valley are even more severe. Among them women are burned for adultery; and in their "widows' men" they have a curious device for the preservation of domestic peace.[329] All these tribes "guard with great caution against, and some even punish with death, the union of the two sexes before the complete puberty of the woman.... Friar Francisco assured me that the virginity of the man was strictly maintained until the epoch of his marriage, and this was not allowed before he was twenty-five years of age, without even this being the ordinary thing: marriage is commonly after thirty." As a principal reason for this usage are assigned the "force and energy of the offspring."[330]

Savage tribes are often extremely licentious; but it is significant that the most immoral are not always lowest in the scale of development. Besides, it is well known that "contact with a higher culture, or more properly, the dregs of it, is pernicious to the morality of peoples living in a more or less primitive condition."[331] Nor can promiscuity as a general social stage be assumed from the existence of some tribes whose sexual relations are but slightly restrained, since, as just seen, there are others, not otherwise more advanced, remarkable for the chastity of the wedded as well as the unwedded life.[332]

The indirect evidence of a former stage of unrestricted sexual relations, based on the existence of certain customs assumed to be its survival, particularly female kinship, exogamy, and polyandry, turns out on examination to be even less convincing than that obtained from direct observation. Primitive man is usually influenced by extremely simple motives; and the great fault of speculation has been the assignment of remote and complex causes for phenomena which are often capable of easier explanation. "The most important features of the life of a community," Starcke observes, "are due to forces at once simple and universal."[333]

II. THE PROBLEM OF MOTHER-RIGHT

Such is the case with attempts to account for kinship in the female line. McLennan thinks it "inconceivable" that it can be due to any cause other than uncertainty of fatherhood; and he holds therefore that it must have preceded the paternal system.[334] Careful research, however, has shown that these assumptions are far from axiomatic. In the first place, the acute criticism of Friedrichs is deserving of special attention. Among a number of low races where relationship with the begetter is not recognized he finds that certainty of fatherhood through securing the fidelity of the wife nevertheless exists. The number is small, but a single certain example, he insists, is sufficient to refute McLennan's hypothesis. Such an example is provided by Semper[335] in the case of the people of the Palau Islands; and it is all the more convincing because here it is only the wife who is prohibited from general sexual intercourse, while young girls may give free play to their desires, and in a measure this is not merely suffered, but even enjoined by social custom.[336] Indeed, savages know well how to secure chastity on the part of their women by such "naïve arts" as infibulation, so realistically described by Ploss in his well-known book on woman.[337]

While not denying that uncertainty of fatherhood may have been influential in some cases, Spencer argues that without this assumption it is perfectly natural that the child should be named from the mother with whom it spends its early life; and where exogamy prevails the custom would become a convenient rule for determining who are marriageable women within the group; for the "requirement that a wife shall be taken from a foreign tribe readily becomes confounded with the requirement that a wife shall be of foreign blood."[338]

Westermarck seeks a simple explanation of female kinship in the necessary relations of a child with its mother. "Especially among savages, the tie between a mother and a child is much stronger than that which binds a child to the father. Not only has she given birth to it, but she has also for years been seen carrying it about at her breast. Moreover, in cases of separation, occurring frequently at lower stages of civilization, the infant children always follow the mother, and so, very often, do the children more advanced in years."[339] Polygyny has doubtless favored the choice of the female line of descent;[340] and the odd custom of the couvade, found here and there among rude peoples, instead of being a mark of transition to the paternal system, only implies some connection or "some idea of relationship" between father and child;[341] and accordingly simpler and more probable reasons for its origin have been assigned.[342] Thus it may take its rise in the notion of a mysterious physical connection between the father and the child. "The well-being of the child is its object." The father occupies the so-called lying-in bed, not as a bed of sickness "affording rest and strength after travail," but he abstains from certain foods lest they should injure the child, and he fasts in order that his powers of endurance may be assured to it.[343] This view is strongly supported by the fact that among many primitive peoples, in various stages of advancement, the belief is found that the child springs from the father alone, the mother merely performing the function of nourishment.[344] Finally Westermarck's generalization as to the real import of kinship through females only may be noted. The "facts adduced as examples" of this system, he declares, "imply chiefly that children are named after their mothers, not after their fathers, and that property and rank succeed exclusively in the female line."[345]

Starcke has devoted the first half of his book to a detailed investigation of the problem of female descent, and comes to the conclusion that it depends mainly on local and economic causes. He first shows that the clan is of later origin than the family; and holds that these are by nature very different institutions. The family is juridical, established by contract, and only "in a subsidiary sense" founded on the "tie of blood between parents and children;" but the clan is a natural and homogeneous group of kindred among whom degrees of relationship are not counted. It is an exclusive group into which the child is born; and "it is absolutely impossible for one person to belong to two distinct clans."[346] In the primitive stage, before the formation of clans, the family must always be a more or less isolated group. The man usually chooses the place of abode, and hence paternal kinship may be easily recognized. A considerable number of rude peoples exist who take kinship from the father;[347] and Starcke is inclined to believe, though he presents rather slender evidence, that as a general rule the paternal precedes the maternal system. With the rise of the clan organization, it became absolutely necessary for the local groups to take one system or the other. So the "definition of kinship results from the conflict between clans, and teaches us nothing further with respect to the child's relation to its parent. The choice between the two possible lines is decided by the economic organization of the community and by the local grouping of individuals, but there is not the slightest trace of the fact that considerations with respect to the sexual relations had any influence in the matter."[348]

Starcke's opinion that such rules of succession depend on local connections, those persons being each other's heirs "who dwell together in one place,"[349] seems to gain some support from the result of Dr. Tylor's examination of the so-called "beena"[350] marriage form, which requires the man to live in the family of his wife, usually serving for her as did Jacob for Laban's daughters. It is remarkable that this custom and the maternal system of kinship are commonly found together. "Thus the number of coincidences between peoples where the husband lives with the wife's family and where the maternal system prevails, is naturally large in proportion, while the full maternal system as naturally never appears among peoples whose exclusive custom is for the husband to take his wife to his own home."[351] Furthermore, adds Westermarck, "where both customs—the woman receiving her husband in her own hut, and the man taking his wife to his—occur side by side among the same people, descent in the former cases is traced through the mother, in the latter through the father."[352]

It seems certain that the whole truth regarding the problems of kinship, as well as regarding the rise and sequence of the forms of the family, can be reached only through a thorough historical investigation of the industrial habits of mankind. In fact, the position of Starcke, that the rise of rules of descent and kinship depends mainly on economic and local causes, is strengthened in a remarkable way by the researches of Grosse, which have already been presented in outline. Nowhere does promiscuity appear among the peoples known to history or ethnology; and everywhere, even among the "lower hunters," comprising the most backward members of the human kind, appears the single family in which the man holds the place of power, which is often despotic. There is no definite sequence between the maternal and the paternal systems. The existence of either depends upon favorable economic conditions; and they may both appear side by side. In fact, according to Cunow, among the lower hunters, with the single exception of the Australians, the custom of female descent has not yet been discovered; and even in Australia it is precisely the most advanced tribes among which the maternal system appears. It first arises when women are sought outside of the original horde, in order to prevent intermarriage of maternal kindred.[353]

In the light of present research, therefore, the most that can safely be admitted concerning the system of kinship through females only is that it has widely existed among the races of mankind;[354] although, as elsewhere shown, its prevalence has been greatly exaggerated. Partially under the influence of monogamy and the rise of modern forms of property, it has often been superseded by the parental and sometimes by the agnatic system, although this sequence is by no means invariable. It is very archaic, yet not necessarily primitive. There is no satisfactory evidence that it implies an original stage of promiscuity. It is not impossible, in view of the facts disclosed by Starcke, that sometimes it may be preceded by a custom in which the child is named from the father, and rank and property descend in the male line; while there is evidence that in the lower hunting stage, before rules of descent were yet subjects of reflection, a kind of patriarchate or androcracy generally prevailed.[355]

III. THE PROBLEM OF EXOGAMY

The case is much the same with the problem of exogamy, which is closely connected with the question of kinship. According to McLennan, as already seen, exogamy, or the prohibition of marriage within the clan, owes its rise to wife-capture occasioned by scarcity of women through female infanticide; and it is contrasted with the opposite custom of endogamy, which, it is alleged, usually implies a higher stage of civilization. This account of its origin, he thinks, is, on the whole, the "only one which will bear examination."

How far it really falls short of the truth was first pointed out by Herbert Spencer. "In all times and places, among savage and civilized," he says, "victory is followed by pillage. Whatever portable things of worth the conquerors find, they take.... The taking of women is manifestly but a part of this process of spoiling the vanquished. Women are prized as wives, as concubines, as drudges; and, the men having been killed, the women are carried off along with the other moveables." Thus "women-stealing" is an "incident of successful war." But a woman so taken has a double value. "Beyond her intrinsic value she has an extrinsic value. Like a native wife, she serves as a slave: but unlike a native wife, she serves also as a trophy." A warrior possessing such a token of prowess gains social distinction. "In a tribe not habitually at war, or not habitually successful in war, no decided effect is likely to be produced on the marriage customs." But in warlike and successful tribes an "increasing ambition to get foreign wives" will arise. Among savages, proofs of courage are often required as qualifications for marriage. Hence it is not surprising that the abduction of a foreign woman should be accepted as the best proof of all. "What more natural than that where many warriors of the tribe are distinguished by stolen wives, the stealing of a wife should become the required proof of fitness to have one? Hence would follow a peremptory law of exogamy." Spencer's interpretation, therefore, agrees with that of McLennan in finding the origin of exogamy in wife-capture and in implying that usage grows into law. But it does not, "like his, assume either that this usage originated in a primordial instinct, or that it resulted from a scarcity of women caused by infanticide.[356] Moreover, unlike Mr. McLennan's, the explanation so reached is consistent with the fact that exogamy and endogamy in many cases co-exist; and with the fact that exogamy often co-exists with polygyny;" nor does it "involve us in the difficulty raised by supposing a peremptory law of exogamy to be obeyed throughout a cluster of tribes." For if exogamy would be likely to arise in tribes usually successful in war, peaceful tribes and those usually worsted in war, though living side by side with the successful and warlike, would be naturally led to adopt the rule of endogamy. Furthermore, among tribes not differing much from one another in strength, endogamy and exogamy may coexist. "Stealing of wives will not be reprobated, because the tribes robbed are not too strong to be defied; and it will not be insisted on, because the men who have stolen wives will not be numerous enough to determine the average opinion." Spencer also maintains that the symbol of rape in the marriage ceremony does not necessarily imply the previous existence either of foreign wife-stealing or of exogamy, assigning three other reasons which singly or together may account for it. First, it may result from a struggle for women within the tribe. "There still exist rude tribes in which men fight for possession of women, the taking possession of a woman naturally comes as a sequence to an act of capture. That monopoly which constitutes her a wife in the only sense known by the primitive man is a result of successful violence."[357] Secondly, contrary to the view of Sir John Lubbock,[358] the symbol of rape may be due to the struggle of the bride and her female friends, many manifestations of which are found in the marriage customs of primitive races; though the dread of harsh treatment is thought to be an additional motive. But Starcke, doubting whether among savages there is much to choose between the brutality of the husband and that of the father, thinks the weeping of the woman merely symbolizes her sorrow "on leaving her former home; her close dependence on her family is expressed by her lamentation." The existence of such symbols is not surprising in "communities of which the family bond is the alpha and omega."[359] The ceremony of capture, finally, may be due to the resistance of the father and other male friends of the bride. A woman has an economic value, "not only as a wife but also as a daughter; and all through, from the lowest to the highest stages of social progress, we find a tacit or avowed claim to her service by her father." Her service is an object of purchase; and in English law "we have evidence that it was originally so among ourselves: in an action for seduction the deprivation of a daughter's services is the injury alleged."[360]

Sir John Lubbock is likewise an adherent of the view that exogamy originates in wife-capture; but he connects his explanation with his peculiar theory of the communistic family, and it cannot therefore be accepted, if that theory is to be rejected.[361] He holds that originally all the men and women of a tribe lived in sexual communism and individual marriage was looked upon "as an infringement of communal right." But "if a man captured a woman belonging to another tribe he thereby acquired an individual and peculiar right to her, and she became his exclusively." In this way, the practice of capturing foreign wives led to individual marriage, and its evident advantages eventually produced the rule of exogamy. Accordingly, the "symbol of rape became such an important part of the wedding ceremonies, because it was the symbol of giving up the woman to become the exclusive possession of one man."[362] McLennan, however, criticises this view on the ground that "in almost all cases the form of capture is the symbol of a group act—of a siege, or a pitched battle, or an invasion of a house by an armed band." Seldom does it represent a capture by an individual. "On the one side are the kindred of the husband; on the other the kindred of the wife." Furthermore, if women were commonly captured by the men of a group or parties of them, as he justly observes, it is hard to see how an individual who had captured a woman could appropriate her more easily than he could appropriate any woman of his own group for whom he had a fancy.[363] Very different is the explanation offered by Tylor, who regards exogamy as the primitive mode of alliance and "political self-preservation." "Among tribes of low culture there is but one means known of keeping up permanent alliance, and that means is intermarriage." Often the alternative has been "marrying out" or "being killed out." Endogamy, on the other hand, "is a policy of isolation, cutting off a horde or village, even from the parent stock whence it separated."[364] That exogamy has often, perhaps generally, served the political purpose suggested by Tylor is not improbable, and his view is sustained by that of Post and Kohler;[365] but this will not account for its origin.

Both Lubbock and Spencer, it will be observed, agree with McLennan in assigning the origin of exogamy to wife-capture. On the other hand, a group of writers, differing widely on ancillary questions, unite in identifying the causes which have produced exogamy with those which, in general, have led to the establishment of forbidden degrees of consanguinity in marriage. In other words, tribal or clan exogamy is but one of many rules for the prevention of close intermarriage between kindred. It must be admitted that a profound horror of incest is now "an almost universal characteristic of mankind, the cases which seem to indicate a perfect absence of this feeling being so exceedingly rare that they must be regarded merely as anomalous aberrations from a general rule."[366] But, from the beginning, has there been an innate aversion to the sexual union of persons closely related by blood? Is that aversion derived from experience of the injurious results of such unions? Did it originally extend only to marriage and not to irregular sexual connections? Or, finally, is it the indirect result of a custom, such as wife-capture, hardening into a rule of forbidden degrees? These are questions to which very different answers have been given.

Adherents of the horde theory, of course, deny that horror of incest is a primitive instinct. Such is the view also of Spencer, who thinks that "regular relations of the sexes are results of evolution, and that the sentiments upholding them have been gradually established,"[367] though—somewhat inconsistently, as we have seen—he agrees with McLennan in regarding exogamy as the result of custom growing into law. Lubbock takes a similar position, denying that we can "attribute to savages any such farsighted ideas" as the recognition of the injurious effects of close intermarriage.[368] On the other hand, Morgan, whose consanguine family implies the absence of any primitive abhorrence of incest, considers exogamy "explainable, and only explainable as a reformatory movement to break up the intermarriage of blood relations," thus implying that the aversion to such a union is derived from experience.[369] But knowledge which "can only be gained by lengthened observation," Dr. Peschel believes, "is 'unattainable by unsettled and childishly heedless races,' among whom, nevertheless, a horror of incest is developed most strongly."[370] Sir Henry Maine, on the contrary, "cannot see why the men who discovered the use of fire and selected the wild forms of certain animals for domestication and of vegetables for cultivation should not find out that children of unsound constitution were born of nearly related parents."[371] The researches of Starcke, and still more those of Westermarck, render it almost certain, however, that Morgan and Maine are mistaken in their view, though it may point the way to the truth.[372]

Starcke's argument leads up to the conclusion that the basis of exogamy is to be sought in the causes which produced the clan; for between the clans of a tribe exogamy almost always prevails, and, without exception, clanless tribes are "endogamous or at least not exogamous." Furthermore, tribes divided into clans are usually endogamous as to the tribe.[373] Now, prohibitions are found which cannot be due to "exogamy as a definition of the clan;" such is the prohibition of marriage between mother and son where agnation is in force, and "between father and daughter where the uterine line prevails." Since, therefore, "exogamy as a definition of the clan cannot directly produce these prohibitions, which are found wherever exogamy occurs, and in some instances where it is absent," the inference follows that exogamy must have its origin in the abhorrence of close intermarriage and the ideas to which that is due. But these ideas are not necessarily the same as those underlying "the various prohibited degrees of marriage which are now in force;" nor do they imply that the injuriousness of such unions is the ground of the aversion. "In a community in which marriage takes place between consumptive and syphilitic persons, and those affected by hereditary disease, without being condemned by public opinion, and still less by the law, it cannot be said that the condemnation of incest is founded on our regard for posterity."[374] In harmony with his view that marriage is juridical, not founded on sexual relations, he finds the origin of the horror of marriage between near kindred in the legal incongruity of such unions and in their danger to the peculiar constitution of the ancient family itself. Marriage between a brother and sister or between a mother and son would usually be impossible because the "son possesses nothing which he could offer to the father as purchase-money." To accomplish the purpose by force would be an "unheard-of crime among savages." A connection between a father and daughter would seldom occur, "since a father is unwilling to renounce the advantages of bestowing his daughter in marriage."[375] "If in this way an impression arises that there is something unusual and incompatible with other ideas in marriage between such persons, an occasional calamity which befalls any of them will be enough to excite the imaginative faculty in the highest degree; and if no prohibition previously existed, the absolute condemnation of such marriages would then be pronounced." In a word, "the intermarriage of individuals of the same family implies that persons who have no legal right to dispose of themselves and their property nevertheless agree upon such legal disposition, an encroachment which would certainly be violently opposed by primitive men." In the same way, exogamy will arise between clans; and the co-existence of endogamy and exogamy seems to be consistently explained by this theory. "Exogamy prohibits marriage between persons who are so nearly related that they have no legal independence of each other; endogamy prohibits the marriage of persons whose legal status is too remote from each other."[376] In corroboration of his view, Starcke finds evidence that, here and there, a distinction is made between regular marriage and sexual intercourse, the former being forbidden, unless for special reasons, while the latter is allowed.[377]

If Starcke's explanation of the origin of the dread of close intermarriage between kindred is too vague and ill supported by definite proof, his original suggestion that exogamy must take its rise in that horror is sustained and placed on a broader foundation by the singularly interesting researches of Westermarck[378]—a scholar who has rendered to social science a very important service by carrying the principles of organic evolution into the sphere of domestic institutions. He starts with the assertion that horror of incest is universal. Writers have, indeed, collected evidence which they believe points to a time when such an aversion did not exist. Thus marriage with a sister is permitted in Ceylon and Annam; in the royal families of Siam, Burma, and the Sandwich Islands; while the same custom prevailed, as is well known, among the Ptolemies of Egypt, and among the kings of ancient Persia.[379] But these unions are either "anomalous aberrations" from the general rule; or else they are allowed in order to preserve the purity of caste or the royal blood; or, in case of half-sisters, because relationship is traced in one line only;[380] while occasionally they may result from "extreme isolation" or from "vitiated instincts."[381] Everywhere prohibitions exist, though they vary greatly in the "degrees of kinship within which union is forbidden." As a rule, "among peoples unaffected by modern civilization the prohibited degrees are more numerous than in advanced communities, the prohibitions in a great many cases referring even to all the members of the tribe or clan."

For instance, to select a few examples from the wealth of illustration provided by Westermarck, the "Californian Gualala account it 'poison,' as they say, for a person to marry a cousin or an avuncular relation, and strictly observe in marriage the Mosaic table of prohibited affinities."[382] Among the "Bogos of Eastern Africa, persons related within the seventh degree may not intermarry, whether the relationship be on the paternal or maternal side;" and a similar rule exists among the Pipiles of San Salvador. "Among the Kalmucks, no man can marry a relation on the father's side; and so deeply rooted is this custom among them, that a Kalmuck proverb says, 'The great folk and dogs know no relationship,' alluding to the fact that only a prince may marry a relative." Often clan exogamy is enforced by the severest penalties. "The Algonquins tell of cases where men, for breaking this rule, have been put to death by their nearest kinsfolk."[383]

Westermarck next takes up the origin of prohibited degrees; and after a critical examination of the various theories to explain it, he comes to the conclusion that in no case observed is the prohibition of incest founded on conscious experience of its injurious effects. It has not come into existence as the result of observation or calculation or through education on the part of the savage. Law and custom might thus arise; and these may "prevent passion from passing into action, they cannot wholly destroy its inward power." The home is kept pure "neither by laws, nor by customs, nor by education, but by an instinct which under normal circumstances makes sexual love between the nearest kin a psychical impossibility." But this instinct is not an "innate aversion to marriage with near relations." It is rather an "innate aversion to sexual intercourse between persons living very closely together from early youth;" and "as such persons are in most cases related, this feeling displays itself chiefly as a horror of intercourse between near kin." It is not "by the degrees of consanguinity, but by the close living together that prohibitory laws against intermarriage are determined."[384]

This theory, it will be noticed, coincides with that of Starcke in selecting local contiguity or the intimate association of family life as the fundamental fact. It differs, however, in several important particulars. The economic or legal motives are not emphasized; and Westermarck's explanation is broader than Starcke's, for he holds that the aversion extends to sexual connections outside of regular marriage.

It is impossible here to do more than indicate the character of the evidence by which Westermarck powerfully supports his conclusion. Among the Greenlanders, for instance, "it would be reckoned uncouth and blamable, if a lad and a girl, who had served and been educated in one family, desired to be married to one another." It is even "preferred that the contracting parties should belong to different settlements."[385] Among the Kandhs, according to Colonel Macpherson, "marriage cannot take place even with strangers who have been long adopted into, or domesticated with, a tribe;" and the Cis-Natalian Kafirs are reputed to "dislike marriage between persons who live very closely together, whether related or not."[386] Further proof is derived from the fact that "many peoples have a rule of exogamy, which does not depend on kinship at all." Piedrahita, in the seventeenth century, "relates of the Panches of Bogota that the men and women of one town did not intermarry, as they held themselves to be brothers and sisters, and the impediment of kinship was sacred to them; but such was their ignorance that, if a sister were born in a different town from her brother, he was not prevented from marrying her."[387] So also the "Yaméos, on the river Amazon, will not suffer an intermarriage between members of the same community 'as being friends in blood, though no real affinity between them can be proved;'" and the Uaupés, of the same region, "do not often marry with relations, or even neighbours, preferring those from a distance, or even from other tribes."[388]

The great variation in the extent of prohibited degrees found among nations is "nearly connected with their close living together." Savage and barbarous peoples, "if they have not remained in the most primitive social condition of man, live, not in separate families, but in large households or communities, all the members of which dwell in very close contact with each other." Such are the house-communities of the American aborigines, found everywhere, from the "long houses" of the Iroquois to the vast pueblos or "cities" of Mexico and Yucatan;[389] the "joint undivided families" of the Hindus and Southern Slavs;[390] and the trevs or clan households of ancient Wales, comprising four generations living in one inclosure, whose members are forbidden to intermarry.[391] It is significant that in all such cases we find extended prohibitions of close intermarriage, which do not exist "where the family lives more separately." In fact, there is a marked tendency, amounting almost to a law, that the larger the family or clan group, the wider is the circle of forbidden degrees; and, on the contrary, the more isolated and dispersed the manner of life, the greater is the liberty of matrimonial choice.[392]

In the same way prohibition of marriage on the ground of "affinity" or "spiritual relationship" may take place. "By association of ideas" the "feeling that two persons are intimately connected in some way" may "give rise to the notion that marriage or intercourse between them is incestuous." A strong argument is also derived from the "classificatory system of consanguinity." Tylor has shown that this system and the system of exogamy are, in most cases, found together. They are the "two sides of one institution."[393]

But a deeper and still more interesting question remains: "How has this instinctive aversion to marriage between persons living closely together originated?" We cannot help feeling that through his masterly solution of this difficult problem Westermarck has at last brought us very near to the truth. He finds the key to it in the biological law of similarity.[394] It is demonstrated that a "certain degree of similarity as regards the reproductive system of two individuals is required to make their union fertile and the progeny resulting from this union fully capable of propagation." But the similarity must not be too close. A certain amount of differentiation is requisite; but the differentiation must not be too great.[395] There must be homogeneity combined with heterogeneity. Among domestic animals close interbreeding, it is well known, leads to infertility and degeneration; and Darwin's researches prove that self-fertilization in the vegetable kingdom produces the same results.[396] There is abundant evidence tending to show that what is true of plants and the lower animals is true also of man. "Taking all these facts into consideration," says Westermarck, in closing his argument, "I cannot but believe that consanguineous marriages, in some way or other, are more or less detrimental to the species. And here, I think, we may find a quite sufficient explanation of the horror of incest; not because man at an early stage recognized the injurious influence of close intermarriage, but because the law of natural selection must inevitably have operated. Among the ancestors of man, as among other animals, there was no doubt a time when blood-relationship was no bar to sexual intercourse. But variations, here as elsewhere, would naturally present themselves; and those of our ancestors who avoided in-and-in breeding would survive, while the others would gradually decay and ultimately perish. Thus an instinct would be developed which would be powerful enough, as a rule, to prevent injurious unions. Of course it would display itself simply as an aversion on the part of individuals to union with others with whom they lived; but these, as a matter of fact, would be blood-relations, so that the result would be the survival of the fittest. Whether man inherited the feeling from the predecessors from whom he sprang, or whether it was developed after the evolution of distinctly human qualities, we do not know."[397]

Exogamy appears, then, to be the result of natural selection, arising "when single families united in small hordes. It could not but grow up if the idea of union between persons intimately associated with one another was an object of innate repugnance." Conversely, the law of similarity enables us to understand the coexistence of clan-exogamy and tribal endogamy. The one springs from a horror of sexual union between persons who are too near; the other arises in a dislike of connection between those who are too remote. Among primitive men, and sometimes even among those well advanced in civilization, there exists a shrinking from physical contact with strange races only less violent than the aversion which the dread of incest excites. But this prejudice yields to the sympathy produced by the growing similarity of interests, ideas, sentiments, and general culture among men. Sympathy, upon which affection mainly depends, has widened the sphere of sexual selection.[398]

IV. THE PROBLEM OF THE SUCCESSIVE FORMS OF THE FAMILY

From the preceding analysis it will appear, we trust, that scientific examination of the problems of kinship and exogamy has disclosed something of the real origin of the laws which govern human sexual relations. The searching criticism to which the theory of polyandry has been subjected, in connection with the opposite custom of polygyny, carries us still nearer the truth. For, in the light of recent research, it does not seem entirely hopeless to discover a trace of the actual sequence in which, according to natural law, the general forms of marriage and the family have been evolved.

According to McLennan, it will be remembered, polyandry originates in a scarcity of women due to female infanticide; and it is a universal phase of social progress through which transition is made from promiscuity and the system of kinship in the female line to the paternal system and higher types of family life. Furthermore, he seems to think, though on this point he is not very clear,[399] that polygyny may grow out of polyandry through the practice of capturing wives. This theory has by no means gone unchallenged.[400] It has been shown, in the first place, that the extent to which the custom of polyandry has prevailed is greatly exaggerated. Though it is found among various peoples in different parts of the world, its occurrence is on the whole comparatively rare; and the practice is much less extended than that of polygyny. Its former existence cannot be inferred from such customs as the niyoga and the levirate; for these are capable of simpler explanation.[401] It is highly probable, as Starcke urges, that they are merely expedients for procuring an heir or for conveniently regulating the succession to property and authority,[402] particularly in the joint family; but there is no good reason to doubt that Spencer's explanation is adequate in some cases. "Under early social systems," he declares, "wives, being regarded as property," are inherited like other possessions.[403] The procuring of an heir through a brother or some other third person harmonizes with the "juridical character of fatherhood among primitive men."[404]

Again, not only is the general extent of polyandry limited, but even where it exists it is confined in almost every case "to a very small part of the population."[405] It is sometimes restricted to the poorer classes, sometimes to the rich; and nearly always it is found side by side with polygyny or monogamy. There is another limitation, already noticed, which tells very strongly against the theory of its origin in promiscuity. Polyandry usually shows a tendency in the direction of monogamy. Sometimes each of the husbands lives with the wife during a certain period, while the others are absent; or frequently, "as one, usually the first married, wife in polygynous families is the chief wife;" so also, "one, usually the first, husband in polyandrous families is the chief husband." In him authority and the property are vested, and all the children, even, are feigned to be his.[406]

In opposition to the theory of McLennan various explanations of the origin of polyandry have been advanced. Spencer regards both polygyny and polyandry as mere limitations of promiscuity. "Promiscuity may be called indefinite polyandry joined with indefinite polygyny; and one mode of advance is by diminution of the indefiniteness." Polyandry, therefore, does not originate in scarcity of women; nor can it be due to poverty; "though poverty may, in some cases, be the cause of its continuance and spread." It is rather one of several independent "types of marital relations emerging from the primitive unregulated state; and one which has survived where competing forms, not favored by the conditions, have failed to extinguish it."[407] Hellwald holds a similar view.[408] Robertson Smith traces its origin to the practice of capturing or of purchasing wives in common by a group of kinsmen; and in the case of purchase, poverty or the high price of women must have exerted a favorable influence.[409] Not entirely dissimilar is the view of Wake who, rejecting the hypothesis of McLennan, believes that polyandry can be satisfactorily explained "only as being established, under the pressure of poverty, either independently or as an offshoot from the phase of punaluan group marriage in which several brothers have their wives in common."[410] Starcke in like manner finds that it "is adapted in every respect to this organization of the joint family group." In its highest forms "it is only the eldest brother who is married," and "the younger ones are not husbands, but merely specially authorized lovers. There is nothing to indicate that the band of brothers, as such, take a wife in common; that is, that the marriage is the act of the whole community." Hence "polyandry belongs to the category of facts which have to do with the ordinary family communism;" and it does not forfeit its character of a marriage in which the individual does not quite lose his personality in the group.[411]

More satisfactory, from a scientific point of view, is the result of Westermarck's inquiry. This is so, not only because we feel that he is probably right in his conclusion, but because his argument affords an excellent illustration of the success with which the statistical method may be applied to social questions. The way for a solution of the problem had been prepared by McLennan and his critics. They had established a strong probability that poverty and scarcity of women are in some intimate way connected with polyandry. Westermarck shows that there is, in fact, a close relation, but that relation is a consequence of natural selection. The ultimate causes of polyandry, he demonstrates, are identical with the forces which have produced a numerical disparity between the sexes.[412] First of all the assumption[413] that "monogamy is the natural form of human marriage because there is an almost equal number of men and women," is proved to be untenable by an appeal to the statistics of population, which reveal a considerable variation in the numerical proportion of the sexes. Among many peoples the men are greatly in majority; among others there is a corresponding surplus of women. This disparity is in part easily explainable by referring to the varying conditions of life among different peoples. The "preponderance of women," for instance, "depends to a great extent upon the higher mortality of men" due chiefly to the "destructive influence of war" and the other dangers and hardships to which primitive men are exposed. On the other hand, the surplus of men may, in some degree, be ascribed to female infanticide and, still more, to the severe labor and harsh treatment which usually fall to the lot of women among low races.[414]

But such causes are by no means entirely adequate to account for the numerical inequality of the sexes. For, in the second place, statistics show a considerable disparity between them at birth. "Among some peoples more boys are born, among others more girls; and the surplus is often considerable." With the Todas, for instance, are found about 100 boys to 80 girls under fourteen years of age;[415] while in Mesopotamia, Armenia, Syria, the Arabias, the Holy Land, and in various other portions of Asia, two, three, or even four women to one man are born.[416] "In Europe, the average male births outnumber the female by about five per cent.... But the rate varies in different countries. Thus, in Russian Poland, only 101 boys are born to 100 girls; whilst, in Roumania and Greece, the proportion is 111 to 100."[417]

At this point Westermarck finds it necessary to consider the problem of the "causes which determine the sex of the offspring." The view that sex is influenced either by the relative or by the absolute age of the parents is untenable;[418] nor can the theory be accepted that "polygyny leads to the birth of a greater proportion of female infants."[419] The theory of Düsing, however, must be regarded as the most probable explanation which has yet been advanced.[420] According to him, "the characters of animals and plants which influence the formation of sex are due to natural selection. In every species the proportion between the sexes has a tendency to keep constant, but the organisms are so well adapted to the conditions of life that, under anomalous circumstances, they produce more individuals of that sex of which there is the greatest need. When nourishment is abundant, strengthened reproduction is an advantage to the species, whereas the reverse is the case when nourishment is scarce. Hence—the power of multiplication depending chiefly upon the number of females—organisms, when unusually well nourished, produce comparatively more female offspring; in the opposite case, more male."[421] The observations of Ploss[422] and others[423] appear to sustain Düsing's hypothesis. Wherever nourishment is scarce there seems to be a surplus of male births. Such is the case in highlands as compared with lowlands; among the poor as compared with the rich; in sterile regions as compared with those that are more fertile. Furthermore, Düsing has suggested a second cause due also to natural selection, which influences the numerical proportion of the sexes born; and his conclusion is confirmed by the researches of Westermarck. Mixture of race among animals and plants appears to cause a surplus of female births;[424] while, on the contrary, incestuous unions, being injurious to the species, "have a tendency to produce an excess of male offspring."[425] So, among half-breeds, the number of girls usually predominates;[426] while among in-and-in bred plants, animals, or men the reverse is the case. Hence it seems probable "that the degree of differentiation in the sexual elements of the parents exercises some influence upon the sex of the offspring, so that, when the differentiation is unusually great, the births are in favour of females; when it is unusually small, in favour of males."[427]

Now, it is a significant fact that polyandrous peoples show a tendency to close intermarriage among kindred; while polyandrous countries are notoriously poor. "The Todas of the Neilgherry Hills," for instance, "are probably the most in-and-in bred people of whom anything is known," and among them "the disproportion between male and female births is strikingly in favour of the males." But the "coincidence of polyandry with poverty of material resources" cannot depend, as often asserted, "upon the intention of the people to check an increase of population, or upon the fact that the men are not rich enough to support or buy wives for themselves." For only in Tibet, with her nunneries, among such peoples, is there found a class of unmarried women, and polyandry is often seen in rich families; while in Ceylon "it prevails chiefly among the wealthier classes." With pastoral and agricultural peoples poverty would be no reason for the avoidance of individual marriage, since women are valuable for their labor and "fully earn their own subsistence." In some districts of the Himalayas, we are told, "it is the poor who prefer polygamy, on account of the value of the women as household drudges."[428]

Accordingly as a general result of his argument, Westermarck concludes that there is some reason to believe that polyandry originates in a surplus of men "due, on the one hand, to poor conditions of life, on the other, to close inter-marrying. As a matter of fact, the chief polyandrous peoples either live in sterile mountain regions, or are endogamous in a very high degree."[429] It does not follow, however, that a surplus of men will always produce polyandry, any more than a plurality of women will always lead to polygyny. Other conditions must be favorable. "This practice presupposes," for instance, "an abnormally feeble disposition to jealousy;" and this is actually a "peculiarity of all peoples among whom polyandry occurs."[430]

The evidence adduced seems conclusive that polyandry holds a relatively unimportant place in the sociological history of mankind. It is not of frequent occurrence; it is usually modified in the direction of monogamy; and it always implies a considerable progress in civilization. The case is much the same with polygyny.[431] It is not a mere limitation of promiscuity, as some writers believe,[432] but usually makes its appearance comparatively late in social history. It is found side by side with polyandry and does not grow out of it, as McLennan supposes. Finally, like polyandry, its importance as a form of sexual relations has been greatly magnified. True, polygyny is much more widely dispersed than polyandry, being found perhaps among the majority of races both in ancient and modern times.[433] Its rise is particularly favored by the economic and social forces which produce the patriarchal system.[434] But, on the other hand, among many barbarous peoples it is "almost unknown or even prohibited." Monogamy appears to be the prevailing form of the family precisely among peoples least advanced in general culture and particularly in the economic arts.[435] It is highly significant, to take a single example, that among the Dravidian Veddahs of Ceylon, commonly regarded as anatomically and intellectually among the most backward races of mankind, monogamous unions last until death dissolves them. To those still untouched by foreign influences polyandry and polygyny are entirely unknown. There is no prostitution. Conjugal fidelity is remarkable. Free courtship exists. Children are treated with kindness; and in general the Sarasin brothers present a picture of pleasing domestic life among this singular people.[436]

Where polygyny exists it is sometimes the chiefs alone who are "permitted to have a plurality of wives." Besides, just as in the case of polyandry, "almost everywhere it is confined to a very small part of the people, the majority being monogamous." It is so "among all Mohammedan peoples, in Asia and Europe, as well as in Africa." Ninety-five per cent. of the Mohammedans of India, for instance, are said to be monogamists; and in Persia, it is reported, only "two per cent. of the population enjoy the questionable luxury of a plurality of wives." Among the American aborigines monogamy is the rule. Although polygyny widely exists among them, seldom are more than two wives found.[437] Indeed the numerical proportion of the sexes throughout the world renders it impossible for polygyny to become the general practice.[438]

Polygyny, like polyandry, is modified in several ways in the direction of monogamy. Often, as in Africa[439] and among many American peoples, a "higher position is given to one of the wives, generally the first married." She possesses superior authority and becomes the real mistress of the household. Thus, according to Waitz, among the Eskimo a second wife is seldom taken unless the first is childless; but in polygynous families the first wife has domestic precedence. The same is true generally of the red Indians of the north-west coast.[440] Among the Siouan tribes the bride's sisters sometimes become subordinate wives;[441] and usually where there are several, according to Dorsey, the first wife and the last are "the favorites, all others being regarded as servants."[442] The principal Indians among the Brazilian Tupinambás, says Souza, "have more than one wife, and he who has most wives is the most honored and esteemed; but they all yield obedience to the eldest wife and all serve her." She "has her hammock tied up next to that of her husband, and between the two there is always a fire burning."[443] Among various peoples it is required "that the first wife shall be of the husband's rank, whilst the succeeding wives may be of lower birth." Sometimes, as among the Chinese, the ancient Hebrews, and the kings of early Egypt, the secondary wives really hold the position of concubines.[444] Frequently the husband has a favorite whom he treats especially as his wife; or conversely, as among the Abipones,[445] he is "bound by custom or law to cohabit with his wives in turn." Finally, it is important to note that everywhere bigamy, or rather duogamy, is the "most common form of polygyny, and a multitude of wives is the luxury of a few despotic rulers or very wealthy men."[446]

Let us next consider the causes which favor the rise of polygyny. It is highly probable, in countries "unaffected by European civilization," that a surplus of women has exerted an influence in its favor.[447] Thus in India polygyny is found among peoples where there is a plurality of women, and polyandry where the reverse is the case.[448] Among the Kafirs and the aboriginal tribes of North America polygyny usually appears only where the women outnumber the men.[449] This disparity of the sexes may sometimes be due to the ravages of war;[450] but it is more likely, as in the case of polyandry, that it owes its origin to natural selection, abundance of nourishment tending to produce an excess of female births. Polygyny also arises from calculation. According to Wake, "abundance may be said to be the chief inducement to the practice;" and, as a matter of fact, it is usually the wealthier persons among polygynous peoples who indulge in the luxury of many wives.[451] Poverty and the approximate equality of the sexes, Spencer holds, are the natural restrictions of polygyny.[452] Again, "superior strength of body and energy of mind, which gained certain men predominance as warriors and chiefs, also gave them more power of securing women; either by stealing them from other tribes or by wresting them from men of their own tribe."[453] In this way the possession of a number of wives would become a mark of distinction. Consequently polygyny sometimes appears as the special privilege of the ruler or of a class; and, as Spencer suggests, from its association with greatness it may gain popular approbation, just as monogamy may be thought "mean" from its association with poverty. "Even the religious sanction is sometimes joined with the ethical sanction," as among the Chippewayans.[454]

Various other reasons for the rise and spread of polygyny have been advanced. Among these are the motives arising in passion, such as man's love of beauty[455] and variety, and his unwillingness to practice abstinence in certain seasons.[456] More powerful than these is the "desire for offspring, wealth, and authority." In certain stages of advancement the more children a man has, the greater are his power and distinction. His "fortune is increased by a multitude of wives not only through their children, but through their labour."[457] For this reason, in some cases where jealousy is weak, women cling to polygyny; since by sharing the toil with others they hope that its burden may be lessened.[458] Spencer assigns another cause of the rise of polygyny which has enabled it to hold its ground even against the superior type, monogamy. For "under rude conditions," he believes that "it conduces in a higher degree to social self-preservation." The loss of population sustained by the ravages of war are thus repaired. A bias in favor of polygyny may be founded which will even come to be sustained by natural selection. "In a barbarous community formed of some wifeless men, others who have one wife each, and others who have more than one, it must on the average happen that this last class will be relatively superior—the stronger and more courageous among savages, and among semi-civilized peoples the wealthier also, who are mostly the more capable. Hence, ordinarily, a greater number of offspring will be left by men having natures of the kind needed. The society will be rendered ... not only numerically stronger, but more of its units will be efficient warriors." Furthermore, there will be a "structural advance" as compared with lower types of the family. Paternity is certain; and, where descent is traced in the male line, "inheritance of power by sons becomes possible; and, where it arises, government is better maintained." The family cohesion is greater; and "this definite descent in the male line aids the development of ancestor-worship; and so serves in another way to consolidate society."[459] For these reasons chiefly he regards polygyny as a type of marriage higher than polyandry; though he remarks that, "were it not for the ideas of sacredness associated with that Hebrew history which in childhood familiarized us with examples of polygyny, we should probably feel as much surprise and repugnance on first reading about it as we do on first reading about polyandry."[460] But this is too favorable an estimate of the relative social value of polygyny. It is doubtful, to say the least, whether morally and physically it is more favorable to the offspring than polyandry; and it is almost certain that it is far worse in its effects upon the home and condition of women.[461] This fact alone, when considered in all its consequences, far outweighs the alleged relative structural advantages of polygyny, which besides have not been conclusively established.

But, as a rule, neither polygyny nor polyandry is favored by woman, in whom the passion of jealousy is very strongly developed. "Polygyny is an offence against the feelings of women, not only among highly civilized peoples, but even among the rudest savages." It is a noteworthy fact that "among monogamous savage or barbarous races the position of women is comparatively good;"[462] while, on the other hand, polygyny is in almost every way degrading to the female sex.[463] Accordingly, under influence of ideas and sentiments favoring the freedom and dignity of woman, both polygyny and polyandry must yield to individual marriage. With woman in its favor monogamy could never be entirely superseded as the type of human marriage. "Polygamy must disappear as soon as a growing development brings into play permanent motives and fundamental forces."[464] Among these forces is the "idea of procreative conditions" entering into the conception of fatherhood. From this follow chastity on the part of the wife, and consequently a limit to the sexual liberty of the husband. Out of this also sprang ancestor-worship, a powerful force in differentiating the monogamic household. "Even in primitive times, the character, or soul—the inward, mysterious being—of the father was supposed to decide the character of the child.... The joy excited by the excellent qualities of a child was first aroused in the breast of a primitive man when that child owed its being to himself, and its excellence was a proof of the excellence of its begetter, that is, of himself. I venture to assert that even now this idea plays the strongest part in what we call the voice of blood.... Vanity, a sentiment which is often condemned, yet not always blameworthy, finds sustenance in the most trivial occurrences of everyday life from the thought, 'Here I trace myself; the child has inherited that tendency from me.'"[465] With advancing culture and the growth of altruism it is inevitable that monogamy should assert its right to prevail over all other forms of the family which have yet appeared among mankind.

So we come back to the starting-point. The complex phenomena of human sexual relations have been examined in the light of scientific criticism and recent research. The result seems unmistakably to show that pairing has always been the typical form of human marriage. Early monogamy takes its rise beyond the border-line separating man from the lower animals. But, considering the aberrations from the type, development has been in a circle.[466] At the dawn of human history individual marriage prevails, though the union is not always lasting. In later stages of advancement, under the influence of property, social organization, social distinctions, and the motives to which they gave rise, various forms of polyandry and polygyny make their appearance, though monogamy as the type is never superseded. "Nothing, indeed, is more favourable to polygyny," says Westermarck, "than social differentiation."[467] In its "highest and regulated form," declares Morgan, "it presupposes a considerable advance of society, together with the development of superior and inferior classes, and of some kinds of wealth."[468] Furthermore there is direct evidence in some cases that a transition from monogamy has actually occurred.[469] At a still more advanced stage of culture, under pressure of those influences which have led to the social elevation of woman, polygyny yields in turn to monogamy. "When the feelings of women are held in due respect, monogamy will necessarily be the only recognized form of marriage. In no way does the progress of mankind show itself more clearly than in the increased acknowledgment of women's rights, and the causes which, at lower stages of development, may make polygyny desired by women themselves, do not exist in highly civilized societies. The refined feeling of love, depending chiefly upon mutual sympathy and upon appreciation of mental qualities, is scarcely compatible with polygynous habits; and the passion for one has gradually become more absorbing."[470] But the later monogamy differs from the earlier in one important characteristic. The primitive monogamy "is not a form of marriage which can be regarded as the expression of a marriage law; that is, it is not a form of marriage which is striving for the mastery, and which cannot tolerate other co-existent forms of marriage. On the other hand the later monogamy, which arises from a distinct condemnation of polygamy, or from a secret aversion to it, is characterized by self-assertion, and seeks to exclude other forms of marriage."[471]

For a full understanding of the evolution, which has here been sketched in outline, there remains, however, a fact of primary importance to which but casual reference has thus far been made: the element of contract in the marriage relation. This fact will receive some consideration in the next chapter.

CHAPTER IV
RISE OF THE MARRIAGE CONTRACT

[Bibliographical Note IV.—The literature for this chapter may be more briefly indicated, since it is largely identical with the authorities mentioned in Bibliographical notes I, II, and III. The researches of Starcke, Westermarck, Darwin, Letourneau, and Wake are of primary importance, and marriage by capture and purchase are of course essential parts of McLennan's Studies I and II, and the Patriarchal Theory. Particularly valuable are the monographs of Dargun, Mutterrecht und Raubehe and his Mutterrecht und Vaterrecht; Kulischer, "Intercommunale Ehe durch Raub und Kauf," in ZFE., VIII; Kohler, "Studien über Frauengemeinschaft, Frauenraub, und Frauenkauf," ibid., V; Kautsky, "Entstehung der Ehe und der Familie," in Kosmos, XII; and Schroeder, Hochzeitsbräuche der Esten (Berlin, 1888), containing a description of many curious "survivals." A mass of miscellaneous information relating to marriage customs may also be found in Schmidt, Hochzeiten in Thüringen (Weimar, 1863); Wood, The Wedding Day (New York, 1869); and especially in the Hochzeitsbuch of Düringsfeld (Leipzig, 1871).

For a full and systematic treatment of the matrimonial law and usage of many low races see the various books by Post, especially his Entwicklungsgeschichte des Familienrechts, Anfänge des Staats- und Rechtsleben, and the Afrikanische Jurisprudenz.

Illustrations of matrimonial law and usage may be found in Henrici, "Das Volksrecht der Epheneger," in ZVR., XI; Kohler, "Das Recht der Papuas auf Neu-Guinea," ibid., VII; his "Das Recht der Birmanen," and "Das Recht der Chins," both ibid., VI; Farrer, "Early Wedding Customs," in his Primitive Manners (London, 1879); Volkov, "Rites et usages nuptiaux en Ukräine," in L'anthropologie, II, III (Paris, 1891-92); Ellis, "Survivals from Marriage by Capture," in Pop. Sci. Monthly, June, 1891 (New York, 1891); Loring, "Marriage," in his A Confederate Soldier in Egypt (New York, 1884); Blumentritt, Ethnographie der Philippinen (Gotha, 1882); and Wessely, "Ein griechischer Heiratscontract vom Jahre 136 n. Ch.," in Xenia Austriaca, I (Vienna, 1893). Useful material will likewise be found in Weinhold, Deutsche Frauen (Vienna, 1882); Harrison, "Religion and Family among the Haidas" (Queen Charlotte Islands), in Jour. Anth. Inst., XXI (London, 1891); Crawley, "Sexual Taboo," ibid., XXIV (London, 1894-95); his Mystic Rose (London and New York, 1902); and Floessel, Die Schwiegermutter (Dresden, 1890).

For the question of sexual selection with Darwin compare Wallace, Darwinism (London, 1891); Poulton, Colours of Animals (New York, 1890); and Weismann, Studies in the Theory of Descent (London, 1880-82).

Hebrew marriage is treated by Michaelis, Abhandlung von den Ehegesetzen Mosis (Göttingen, 1768); his Commentaries on the Laws of Moses (London, 1814); Lichtschein, Die Ehe nach mosaisch-talmudischer Auffassung (Leipzig, 1879); Mielziner, The Jewish Law of Marriage and Divorce (Cincinnati, 1884); Weill, La femme juive (1874); Kurtz, Die Ehe der Söhne Gottes mit den Töchtern der Menschen (Berlin, New York, and Adelaide, 1857); his Die Ehe des Propheten Hosea (Dorpat, 1859); Stubbe, Die Ehe im Alten Testament (Jena, 1886); Ellis, "Marriage and Kinship among the ancient Israelites," in Pop. Sci. Monthly, XLII (New York, 1892-93), 325-37; Bergel, Die Eheverhältnisse der alten Juden (Leipzig, 1881); Duschak, Das mosaisch-talmudische Eherecht (Vienna, 1864); especially Döllinger's rare book, Heidenthum und Judenthum (Regensburg, 1857), containing a comparison of Grecian, Roman, and Hebrew laws and social customs. For Babylon see the works of Simcox, Sayce, Kohler, and Haupt mentioned in the Bibliographical Index, I.

For the matrimonial institutions of China, see Parker, "Comparative Chinese Law," in China Review, VIII (Hong-Kong, 1879-80); Möllendorff, Das chinesische Familienrecht (Shanghai, 1895); Katscher, Bilder aus dem chinesischen Leben (Leipzig and Heidelberg, 1881); idem, Aus China (Leipzig, 1887); Tscheng-ki-Tong, Chinese Painted by Themselves (London, 1885); Arène, La Chine familière (Paris, 1883); Huc, Chinese Empire (London, 1855); Gray, China (London, 1878); Fielde, "Chinese Marriage Customs," in Pop. Sci. Monthly, XXXIV (New York, Dec. 1888); Kohler, "Aus dem chinesischen Civilrecht," ZVR., VI; Giles, Chinese Sketches (London, 1876); Grosier, De la Chine, Tome V (1819); and Smith's valuable Village Life in China (New York, Chicago, and Toronto, 1899), especially Part II. For the usages of allied races see Rockhill, "Notes on the Ethnology of Tibet," in Report of Smith. Inst., 1893, Nat. Museum (Washington, 1895); Kohler, "Studien aus dem japanischen Recht," in ZVR., X; Koehne, "Das Recht der Kalmücken," ibid., IX; Dalmas, Les Japonais (Paris, 1885); Daigoro, "Family Relations in Japan," in Transactions of the Japan Society, II; Rein, Japan nach Reisen und Studien (Leipzig, 1881); Hitchcock, "The Ainos of Yezo, Japan," in Report of Smith. Inst., 1890, Nat. Museum (Washington, 1891); Araki, Japanisches Eheschliessungsrecht (Göttingen, 1893); Loti, "Woman in Japan," in Harper's Monthly (New York, 1890), LXXXII, 119-31; and Titsingh, Cérémonies usitées au Japon (Paris, 1822), the first volume containing very curious and valuable matter concerning wedding customs.

By far the most thorough and comprehensive researches regarding the culture and social life of the American aborigines have been made by American scholars in the Contributions to American Ethnology, the Reports of the Bureau of Ethnology, the Reports of the Smithsonian Institution, including those of the National Museum, and in various periodicals, notably the American Antiquarian and the American Anthropologist. The most important of these papers for Indian marriage and family customs are Dorsey, "Omaha Sociology," in III. Rep. of Bureau of Eth., 205-370 (Washington, 1884), supplemented by his "Siouan Sociology," ibid., XV, 205-44 (Washington, 1897); McGee, "Siouan Indians," ibid., XV, 153-204; idem, "The Seri Indians," ibid., XVII, Part I (Washington, 1898); Mooney, "Siouan Tribes of the East," in XVII. Rep. of Bureau of Eth. (Washington, 1894); Riggs, "Dakota Grammar, Texts, and Ethnography," in Contributions to N.A. Ethnology, IX (Washington, 1893); and the elaborate work of Powers, "Tribes of California" (Washington, 1877), constituting the third volume of the same series. Some important illustrations of the matrimonial usages of the Eskimo may be found in Murdoch, "Eth. Results of Point Barrow Expedition," in IX. Rep. of Bureau of Eth. (Washington, 1892); Nelson, "The Eskimo about Bering Strait," ibid., XVIII, Part I (Washington, 1899); and Turner, "Ethnology of the Ungava District," ibid., XI (Washington, 1894). See also MacCauley, "The Seminole Indians," ibid., V (Washington, 1887); Stevenson, "The Sia," ibid., XI, 3-157 (Washington, 1894); Hoffman, "Menomini Indians," ibid., XIV (Washington, 1896); Grossmann, "The Pima Indians of Arizona," in Report Smith. Inst., 1871 (Washington, 1873); Beckwith, "Notes on Customs of the Dakotahs," ibid., 1886, Part I (Washington, 1889); Willoughby, "Indians of the Quinaielt Agency," ibid., Part I; Eells, "Twana, Chemakum, and Klallam Indians," ibid., 1887 (Washington, 1889); Niblack, "Coast Indians of Southern Alaska and Northern Brit. Col.," ibid., 1888, Nat. Museum (Washington, 1890); Boaz, "Social Organization and Secret Societies of the Kwakiutl Indians," ibid., 1895, Nat. Museum (Washington, 1897); Stephen, "The Navajo," in Am. Anthropologist, VI (Washington, 1893); Grinnell, "Marriage among the Pawnees," ibid., IV (Washington, 1891); Corbusier, "Apache-Yumas and Apache-Mojaves," in Am. Antiquarian, VIII (Chicago, 1886); Beauchamp, "Aboriginal Communal Life," ibid., IX (Chicago, 1887), attacking Morgan's views; Peet, "Village Life and Clan Residences among the Emblematic Mounds," ibid., IX; his "Ethnographic Religions and Ancestor Worship," and his "Personal Divinities and Culture Heroes," both ibid., XV (Chicago, 1893); Powell, "Wyandotte Society," in Proc. Am. Assoc. Adv. Sci., XXIX (Salem, 1880); Beauchamp, "Permanence of Early Iroquois Clans and Sachemships," ibid., XXXIV (Salem, 1886); Mallery, "Israelite and Indian," ibid., XXXVIII (Salem, 1890); Fletcher's papers on totemism and animism in "Emblematic Use of the Tree in the Dakotan Group," and her "Study from the Omaha Tribe," both ibid., XLV, XLVI (Salem, 1897-98); Halbert, "Courtship and Marriage among the Choctaws of Mississippi," in Amer. Naturalist, March, 1832; Carr, "The Social and Political Position of Women among the Huron-Iroquois Tribes," XVI. Rep. of Peabody Museum (Cambridge, 1883).

Very valuable early notices of the social customs of the Brazilian Indians may be found in Stade, Captivity among the wild Tribes of eastern Brasil, 1547-55 (London, 1874); Anchieta, "Informação dos Casamentos dos Indios do Brasil," in Revista Trimensal, VIII (Rio de Janeiro, 1867); Souza, "Tratado descriptivo do Brazil em 1587," Revista do Instituto Hist. e Geog., XIV (Rio de Janeiro, 1851); Léry, Du mariage, polygamie, et degrez de consanguinité (3d ed., Geneva, 1585); D'Evreux, Voyage dans le nord du Brésil, 1613-14 (Leipzig and Paris, 1864); Moure, "Les Indiens de la province de Matto-Grosso (Brésil)," in Nouvelles annales des voyages, 1862, II (Paris); Guimarães, "Costumes e Linguagem dos Appiaacás ... de Matto-Grosso," in Revista Trimensal, VI (2d ed., Rio de Janeiro, 1865); and Magalhães, "Familia e Religião Selvagem," Revista Trimensal do Instituto, etc., XXXVI (Rio de Janeiro, 1873, 1876). With these may be read the important accounts of Lafitau, Mœurs des sauvages (Paris, 1724); Pratz, "Des mœurs et coutumes des peuples de la Louisiane (Natchez)," in his Hist. de la Louisiane, II (Paris, 1758); and Dobrizhoffer's description of "weddings" and "marriages" in his Account of the Abipones, an Equestrian People of Paraguay (London, 1822; Latin ed., 1784), among whom he lived as missionary for eight years after his arrival in 1749. There is also a very interesting passage in Humbolt, Vues de Cordillères (Paris, 1810). See further Von den Steinen's Unter den Naturvölkern Brasiliens, 1887-8 (Berlin, 1894); Martius, Von dem Rechtszustande unter den Ureinwohnern Brasiliens (Munich, 1832); which is reprinted with other matter in his Beiträge zur Ethnographie und Sprachenkunde Amerikas zumal Brasiliens (Leipzig, 1867); and Adam, Du parler des hommes et du parler des femmes dans la langue Caraïbe (Paris, 1879). Much material is also contained in Rink, Eskimo Tribes (Copenhagen and London, 1887); his Tales and Traditions of the Eskimo (Edinburgh and London, 1875); Catlin, North American Indians (London, 1841); Schoolcraft, Indian Tribes (Philadelphia, 1853-56); Bancroft, Native Races (New York, 1875-76); Kohler, "Das Recht der Azteken," in ZVR., XI; Vols. III and IV of Waitz, Anthropologie; Krause, Die Tlinkit-Indianer (Jena, 1885); and Bandelier "Social Organization and Mode of Government of the Ancient Mexicans," in Rep. Peabody Museum, II, 557-699.

Among the many works cited in this chapter which have already been enumerated in preceding Bibliographical Notes especially important are those of Jolly, Leist, Krause, Rossbach, Morgan, Bernhöft, Friedrichs, Spencer, Lubbock, Ploss, Lippert, Robertson Smith, Finck, Grosse, Hellwald, and various writings of Kohler.]

Everywhere among our ancestors, when authentic history dawns upon the institutions of the Germanic race, marriage is effected by means of a contract. The transaction is a contract of sale through which for a price the bride is conveyed by the father or guardian into the bridegroom's hand. But, as will appear later, the element of sale is rapidly taking on a symbolical character. The question arises in the outset as to the antiquity of contract in marriage. Is it of comparatively late origin, as is often assumed? Or can the element of agreement, of consent of the parties, be traced from the very beginning of the human family? Again, what is the character and what the historical significance of marriage by purchase? Is it the earliest form of matrimonial contract, and does it constitute a universal phase of development subsequent to that of capturing women?

I. WIFE-CAPTURE AND THE SYMBOL OF RAPE[472]

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]

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]

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.

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]

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]

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]

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]

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.

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]

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]

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]

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]

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]

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]

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]

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]

"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]

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.

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]

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.

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]

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]

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]

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]

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]

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.

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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.

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]

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.

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.

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]

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]

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]

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]

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]

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]

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]

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]

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]

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.

We have now traced the evolution of the marriage contract throughout its entire course, and are able to perceive in a measure its true place in the general history of the human family. Again the movement has been in a circle. As in the case of monogamy, the genesis of contract must be sought beyond the border-line between man and the lower animals. In the "natural history" stage of human existence marriage rested on the free consent of the man and the woman. It was an informal agreement. The man was the wooer, and to the woman belonged the first place in sexual choice. In obedience to the unvarying requirements of organic law, the best attributes of each race have thus been differentiated: through natural selection they represent the survival of the fittest. At a later stage of development the element of mutual consent falls somewhat into abeyance. With the rise of property, industry, and a more complex social organization, giving birth to new desires and ambitions, contract by the guardian in part supersedes self-betrothal. Purchase and its occasional alternative, capture, depriving woman of her natural right of assent, tend to reduce the wife to concubinage and domestic slavery. But fortunately the victory is not complete. Just as monogamy is never displaced by polygyny as the natural type of marriage, so the consent of woman as the normal condition of matrimonial union is never entirely destroyed by wife-purchase. With the evolution of altruism, the increase of culture, producing sympathy upon which connubial love largely depends, and the gradual recognition of the spiritual equality of the sexes, self-betrothal, like monogamy, again predominates. In short, whether regarded historically or biologically, monogamy and self-betrothal appear simply as two aspects of the same institution; they are connected by a psychic bond, and together they constitute the highest type of marriage and the family.

CHAPTER V
EARLY HISTORY OF DIVORCE

[Bibliographical Note V.—For the law and custom of divorce among uncivilized peoples the best analysis and the most painstaking classifications are given by Post in his Entwicklungsgeschichte des Familienrechts and the first volume of his Afrikanische Jurisprudenz, supplemented by the more general notices contained in his various other writings. The subject is also well treated, with the usual minute citation of authorities, in the twenty-third chapter of Westermarck's Human Marriage. The fourteenth chapter of Letourneau's L'évolution du mariage et de la famille is interesting and suggestive, but his analysis is defective; and in this connection, as elsewhere, the author is inclined to take too pessimistic a view of the juridical character of early society. Further general or special discussion may also be found in many of the works already described in previous Bibliographical Notes, especially in those of Wake, Starcke, Spencer, Mason, Unger, Bastian, Friedrichs, Smith, Krauss, Wilken, Riedel, Henrici, Bernhöft, Rehme, Hellwald, Klemm, Ratzel, Waitz, Fritsch, Munzinger, Sarasin, and the numerous papers of Kohler. For the Chinese, in connection with the books enumerated in Bibliographical Note IV, read Legge, Life and Teachings of Confucius (3d ed., London, 1872); Doolittle, Social Life of the Chinese (New York, 1867); and Alabaster, Chinese Criminal Law (London, 1899). The literature relating to the Eskimo and the red Indians of America, mentioned in Bibliographical Note IV, yields many important notices of divorce usage. In addition read Thwaite's valuable paper on the Winnebagoes, Wisconsin Hist. Collections, XII (Madison, 1892). For reference to the divorce institutions among Greeks, Romans, Hebrews, and Early Germans see Bibliographical Note XI.]

I. THE RIGHT OF DIVORCE

Few of the results of recent research are more surprising than the revelation of the existence among low races of elaborate systems of unwritten law covering, often in a very orderly and comprehensive way, most of the divisions which one ordinarily associates with "civilized" jurisprudence.[724] This is especially true of the law of divorce. The investigations of various scholars, notably those of Kohler, Letourneau, Westermarck, and Post, have disclosed among the barbarous or even savage races of mankind a careful attention to detail, a stability, and often a respect for equity, in the customary rules relating to the dissolution of marriage, which western prejudice is scarcely prepared to find; while other peoples commonly looked upon as civilized, but relatively non-progressive, such as the Chinese, are sometimes quite capable of teaching us valuable lessons in this regard.

According to the generalization of Post, who has given the most careful groupings,[725] "the laws of divorce found among the different peoples of the earth vary within the widest limits conceivable." So confusing, indeed, is the mass of custom relating to the subject that in the very outset a word of warning must be given. For in the present state of inquiry, often dependent upon superficial observation and conflicting reports, any analysis or classification, however careful, must perforce be accepted as really tentative and only in broad outline approaching the truth. Nevertheless, with regard to the liberty of divorce, following the suggestion of Post, five classes of peoples may be differentiated:

1. Very often among rude races, particularly where the "genealogical organization is little developed or in process of decay," the marriage bond is lax, and it is readily dissolved at the pleasure of either party.[726] Such is the case with many African, Asiatic, American, and Oceanic peoples. Among the African Damaras, for instance, the wife may change her husband every week if she likes.[727] Similarly among the Shekiani, another negro tribe, the woman may abandon her spouse for mistreatment or for any other cause, returning to her native village, where her friends make it a point of honor not to give her back; and in this way wars sometimes arise.[728] Like freedom exists on the Gold Coast and among the Felups of Fogni; and very commonly in Africa the wife may leave the husband if the purchase price is returned.[729] Among the Makassars and Buginese, without assigning any cause whatever, either party may divorce the other, dividing the children between them.[730] The same is true of the endogamic Alfurese of Minahasa, with whom the cognatic system of relationship prevails.[731] Even in Burma divorce appears to be a one-sided matter, though the person dissolving the marriage suffers severe disadvantages with respect to property rights.[732] In ancient Arabia marriages were formed without ceremony, and they were ended by either spouse with equal ease.[733] But the law of the Amaxosa, constituting with the Amazulu the division of the Bantu stock commonly called "Kafirs," affords a particularly interesting example of early custom with regard to divorce and its legal consequences. Both parties enjoy the greatest freedom in dissolving the marriage; and this is all the more striking because of the prevalence of wife-purchase, which usually restricts the privileges of the woman in this regard. If the marriage is childless, however long it may have endured, the husband who proves the alleged ground of divorce is entitled to receive back the purchase price; and this is true also, in case of such a marriage, when the separation takes place on the part of the wife, unless she establishes very grave cause for her action. The divorced woman is permitted to marry again, provided the purchase price is restored to the first husband; and this in such case he is entitled to receive even when she has borne him children: for here "in all cases the children belong to the father."[734]

Divorce is a simple matter among the Point Barrow Eskimo. "As well as we could judge," writes Murdoch, "the marriage bond was regarded simply as a contract ...; and, without any formal ceremony of divorce, easily dissolved in the same way on account of incompatibility of temper or even on account of temporary disagreements."[735] Among the Santee Dakotas, where mother-right is said to prevail, "a wife's mother can take her from the husband and give her to another man." With "the Cegiha, if the husband is kind, the mother-in-law never interferes." But when he is "unkind the wife takes herself back, saying to him, 'I have had you for my husband long enough; depart.'" When the man has beaten the woman several times or been otherwise cruel, sometimes her father or elder brother says to him: "You have made her suffer; you shall not have her for a wife any longer." When a woman who has been warned against a man by her relatives repents and wishes to dissolve the marriage, her male kindred as a punishment say to her: "Not so; still have him for your husband; remain with him always."[736]

2. Passing to the opposite extreme, there are peoples with whom marriage is a relation absolutely indissoluble. Sometimes this is the case on sacramental grounds, implying usually considerable progress in religious ideas;[737] but it is also true of peoples standing on a very low plane of culture, such as certain of the Papuas of New Guinea, the Veddahs[738] of Ceylon, or the Niassers of Batu, where death alone is sufficient to dissolve the marriage bond.[739]

3. Between these extremes of one-sided freedom and entire prohibition of divorce various intermediate phases appear. Sometimes the only method is mutual agreement of the parties. So, for instance, according to Post, among the Karo-Karo, a Batak tribe on the east coast of Sumatra, neither harsh mistreatment, wicked desertion, nor even adultery gives either the wife or the husband singly the right to demand a separation. Only in case of life-assault is one-sided divorce permitted; and this rule is perhaps a mitigation of the older and severer law.[740] In West-Victoria "a man can divorce his wife for serious misconduct, and even put her to death; but in every case the charge against her must first be laid before the chiefs of his own and his wife's tribes, and their consent to her punishment obtained. If the wife has children, however, she cannot be divorced. Should a betrothed woman be found after marriage to have been unfaithful, her husband must divorce her. Her relations then remove her and her child to her own tribe, and compel the father of the child to marry her, unless he be a relative. In that case she must remain unmarried. If a husband is unfaithful, his wife cannot divorce him. She may make a complaint to the chief, who can punish the man by sending him away for two or three moons; and the guilty woman is very severely punished by her relatives." But there are other ways of dissolving a marriage; and under some conditions the woman has a chance. Exchange of wives, when both are childless, is "permitted only after the death of their parents, and, of course, with the consent of the chiefs." A couple without children may separate by mutual consent; and "when a woman is treated with cruelty by her husband, she may put herself under the protection of another man, with the intention of becoming his wife. If he take upon himself the duty of protecting her, he must challenge her husband and defeat him in single combat in presence of the chiefs and friends of both parties." When a "husband knows that his wife is in love with another man, and if he has no objection to part with her, he takes her basket to the man's wuurn and leaves it. But as no marriage or exchange of wives can take place without the consent of the chief, the wife remains with her husband till the final great meeting, when the bargain is confirmed. This amicable separation does not create any ill feeling between the parties, as the woman is always kind to her first husband without causing any jealousy on the part of the second. Such transactions, although lawful, may not be approved of by the woman's relatives, and she is liable to be speared by her brother."[741]

Among the Marea, when husband and wife can no longer tolerate each other, they are given a year's probation by the "family council;" and only after the expiration of this period does the formal divorce take place. A discontented Marea dame of noble (patriarchal) rank may not of her own will leave her husband; for this would offend social usage. But a Tigrait, or woman of the servile class, may under such circumstances abandon her spouse, provided thenceforth she live abroad.[742]

4. Again it is very common among uncivilized as well as more advanced races for a man to have absolute right of divorce, putting away his wife when he likes, without the assignment of any reason, or on the most frivolous grounds.[743] Sometimes, even among the same peoples, the woman has a reciprocal right, as will presently appear; but very often divorce is the sole prerogative of the man, or else the woman is grudgingly allowed the privilege only for the most serious cause. The unfavorable position in which she is thus placed is no doubt largely due to wife-capture, and especially to wife-purchase, through which she too often sinks to the level of a mere chattel or beast of burden. Still even wife-purchase, as hereafter shown, may have its compensations; for the husband cannot act too harshly without danger of the blood-feud; and he may suffer a decided disadvantage with respect to property by summarily dismissing his wife. Unlimited right of divorce belongs to the man in some parts of China,[744] and with many African[745] and American[746] tribes. "The Aleuts used to exchange their wives for food and clothes. In Tonga a husband divorces his wife by simply telling her to go." In "Yucatan a man might divorce his wife for the merest trifle, even though he had children by her."[747] Among the California Yurok "divorce is very easily accomplished at the will of the husband, the only indispensable formality being that he must receive back from his father-in-law the money which he paid for his spouse."[748] If dissatisfied with his wife, the young Gallinomero of the same region may "strike a bargain with another man" and sell her "for a few strings of shell-money."[749] In the so-called "straw dance" the Dakota husband may "throw away" the wife whom he no longer desires. He may even take several wives in order to dispose of them in this way; thus adding to his importance and giving evidence of his "strong heart."[750] Among the Abipones divorces are as frequent "as changing of the dress in Europe." If "their wives displease them, it is sufficient; they are ordered to decamp." The husband's right is unrestrained by the law; but, "appointing a drinking-party, wherein the memory of injuries is refreshed in the minds of the intoxicated guests, the relations fiercely avenge the dishonor done to the repudiated wife."[751] The Tasmanian husband, when dissatisfied or when a liberal offer is made, may "transfer" his spouse like a slave; but in Luzon a divorce is more difficult, for the wedding gifts must be redistributed among the donors.[752] With "the ancient Hebrews, Greeks, Romans, and Germans, dislike was regarded as a sufficient reason for divorce."[753] Such is also the case on the island of Nias;[754] while among the Galela and Tobelorese the man may put away his wife on account of laziness; and elsewhere he may do the same because she is tiresome or because she lacks skill for household service.[755]

Under the existing law of Islâm the woman has gained a limited right of divorce. By the form called chol she may buy her release; and in this case "a restoration of the marriage bond is impossible." Again, for certain specified faults of the husband, she is granted a separation through fasch, or judicial decree.[756] On the other hand, by li'an, or solemn oath before the cadi, a husband is able to put away the spouse whom he believes to be unfaithful;[757] but in general the right of the man to reject the woman without assigning any cause whatever is absolutely unrestrained. The great majority of divorces among Moslem peoples take the form of talâq, or repudiation. It is only necessary for the husband who is tired of his wife to say to her "mutállaka," "Thou art dismissed."[758] In harmony with the old Arabian custom the procedure by talâq may consist of a "triple declaration" or three successive divorces. After the first pronouncement of the formula the repudiated woman remains three months in her harem at the man's cost, and he is at liberty to take her back if he will. Indeed, a single tender glance or word of concession is sufficient to restore the marriage. Should he not reclaim her until the specified term is passed, he may then do so only in case she has not already taken a new husband, and by paying her a "second time the full amount of the morning-gift as stipulated at their marriage." A second or even a third separation from the same wife may be had by repetition of this process; but the third declaration, unlike the other two, is irrevocable, definitively dissolving the marriage bond.[759]

Among a great many peoples, even those comparatively little advanced in general culture, the husband is permitted to divorce his wife only for definite reasons.[760] The causes of legal divorce most constantly recurring are adultery and sterility. In a great many cases divorce is absolutely forbidden after a child, usually a son, is born. It should be carefully noted that many of the alleged examples of divorce on the ground of sterility are, strictly speaking, not divorces at all; but rather illustrations of the so-called "proof-marriages" so often met with in all parts of the world. Not until the term of probation is "blessed" by the arrival of offspring is the "marriage" in such cases regarded as complete, though this may not always be the implied condition. With the proof-marriages are sometimes described as identical in character the "time-marriages" found among many peoples; but this form of union is, properly speaking, usually a real marriage not dependent for its consummation upon the birth of a child, being stipulated in advance for a certain term.[761] Besides the two leading grounds of divorce already mentioned, many others, some of them trivial, are prescribed by the laws of various peoples. Such are mistreatment, deformity, laziness, desertion, and incompatibility of temper. Sometimes the consent of the chief or other public authority is requisite. So, among the Hottentots, a man may divorce his wife only "upon shewing such cause as shall be satisfactory to the men of the kraal where they live;"[762] and among the aborigines of Victoria, as already seen, a childless wife may be dismissed for serious misconduct only when the sanction of the tribal chief is obtained.[763] By Chinese law divorce must be granted in case of any of the numerous impediments[764] to marriage; or when the wife is guilty of adultery. For that offense the aggrieved husband may kill the offending wife and her paramour, if he catch them in flagrante delicto. But should the woman not be slain, she is punished, and the husband may drive her away or even sell her as a concubine, provided he has not pandered to the crime or does not sell her to the guilty man.[765] Furthermore, a marriage may be dissolved by mutual agreement;[766] and the husband is entitled to a divorce when the wife strikes him, is addicted to drunkenness or opium smoking, has been defiled before marriage, or when she leaves his house against his will.[767] Besides all these grounds, established by statute or recent usage, Confucius allows the husband a divorce for any of seven faults of the wife: barrenness, wantonness, inattention to parents-in-law, talkativeness, theft, jealousy, and inveterate disease such as leprosy.[768] But these grounds will not always warrant a separation. "They may be outweighed by particular merits of the woman or by special circumstances. If the wife has mourned three years for the husband's parents; if the family has grown rich during the marriage; or if the wife has no longer relatives to receive her, then the seven assigned grounds fail, the divorce is not only forbidden but void, and the husband must retain his wife."[769] This is not the only wise and righteous provision of the Chinese law, however despotic as a rule may be the husband's power. Normally the wife cannot sue for divorce; still practically she enjoys the right of separation in several important contingencies. Under judicial approval, for instance, she may release herself from the marriage bond in case of three[770] years' desertion without word from her husband. So likewise, when she suffers grave insult from the husband's parents, she may return to her own family, reclaim her dotal gift, and demand a contribution for her support.[771]

In modern Japan divorce is regulated according to the principles of western law; but formerly the husband's power was governed, as in China, by the rules of Confucius.[772] Furthermore, in spirit the Aztec law of divorce bears a striking resemblance to that of China. Only in special cases, not now understood, had the woman a right of separation; and the husband could put away his wife only for definite reasons, such as sterility and certain defects of character, as when she proved herself careless, impatient, lazy, or quarrelsome. Divorce, however, was discouraged; and even when a legal reason was alleged, it could not be effected without a judicial decree. The decree did not declare the separation; it merely allowed the plaintiff in the matter "to do what he should find good." Thus permission was given for divorce; but the judge avoided pronouncing the separation in direct words.[773]

5. Finally, in further illustration of the endless variety of popular customs, it must be noted that among many peoples the wife also has the right of divorce. Often, as already seen, she may leave her husband at pleasure or on the slightest pretext. It needs but a glance at the usages of the American Indians in this regard to perceive that the lot of the married woman among barbarous or even savage tribes is not always so dark as it is frequently painted;[774] and many similar proofs elsewhere exist.[775] Among the inland Columbians, according to Bancroft, "either party may dissolve the marriage at will."[776] A similar rule prevails with the Moxos of South America, the tribes of California, as well as among the Iroquois and their neighbors.[777] "If a Bonak wife gets up and leaves the man, he has no claim ever after on her;"[778] and, according to Schoolcraft, when the Navajo woman marries, "she becomes free, and may leave her husband for sufficient cause."[779] The Guanan[780] and Guatemalan[781] wife is equally privileged; and the Sioux and other Dakota women are often notoriously independent, even beating their husbands for unfaithfulness, and for this or other just cause returning to their own kindred.[782] Sometimes the wife has the right of divorce only on definite grounds, which may differ from or be the same as those permitted to the husband.[783] Often the reasons which satisfy the moral sense of the community are very slight; at other times they are grave and few in number. Among the Shans, "should the husband take to drinking or otherwise misconducting himself, the woman has the right to turn him adrift, and to retain all the goods and money of the partnership."[784] In "Eastern Central Africa divorce may be effected if the husband neglects to sew his wife's clothes, or if the partners do not please each other."[785] Theoretically among the Athenians the woman could demand a divorce for mistreatment, "in which case she had merely to announce her wish to the archons;"[786] while the Kafir wife "who is beaten or not provided with sufficient food and clothes is entitled to return to her parents."[787] In fact, the right of the woman to repudiate her husband for mistreatment is alleged to be the general rule according to negro custom.[788] Even by modern Mohammedan legislation "divorce may, in certain cases, take place at the instance of the wife, and, if cruelly treated or neglected by her husband, she has the right of demanding divorce by authority of justice."[789]

II. THE FORM OF DIVORCE

The form of divorce, like the rules relating to the right and its conditions, varies greatly among the races of mankind. Very frequently, usually among the lowest peoples, it takes place without any ceremony.[790] Sometimes, however, the procedure is fixed by law or custom. A symbolical act is occasionally sufficient, as with the east African Wazaramo, where the husband by way of divorce hands the wife a piece of holcus reed, on receiving which she must at once leave the house or be driven out.[791] The Unyoro husband observes a similar rite.[792] It is likewise a private transaction in Morocco, where the man rejects the woman by a bill of divorce. The same procedure may be employed in China; and a three-fold proclamation before witnesses is adequate among the Somali.[793] In Dawan (west Timor) it takes place in a council composed of the relations of the man and wife, where the cause is weighed and determined; but in this assembly neither the chiefs nor the eldest have any voice.[794] Similar councils are common among African tribes.[795] In many instances, however, exactly the opposite rule prevails, the decision of the "eldest," the "chiefs," or of some other magisterial, priestly, or judicial authority being requisite for a legal separation.[796]

III. THE LEGAL EFFECTS OF DIVORCE

Not less diversified are the customs governing the effects of divorce; and here, as in the case of its varying forms and conditions, one is almost as often surprised by the reasonableness and stability of early institutions as he is shocked at their harshness or injustice when regarded from the civilized standpoint. In the disposal of the children the existing system of kinship is very widely determinative. Among a great many peoples, in case of separation, the children follow the father or the mother according as mother-right or father-right prevails;[797] and where a mixed system, or rather a coincidence of mother-right and paternal authority,[798] is found, or else relationship is cognatic, they are divided between the parents or their kindred.[799] The division is determined by a variety of rules among different peoples. Often they are equally divided, regardless of sex.[800] Sometimes, as in Bulgaria,[801] Burma,[802] and among the Natchez Indians,[803] the daughters follow the mother and the sons remain with the father. In still other cases, as in certain South Slavonian districts, the father takes the adult children, while those of tender years are left in the mother's hands. Such is the rule in Zara and in Bosnia.[804] In Lika, according to Krauss, when all the children are males, the mother receives the minors, if the father consents; but when they are of both sexes, the sons follow the father and the daughters the mother. In this last case, however, the man is required to pay the divorced woman whatever is needed to supply the bridal outfit of the daughters when they reach marriageable age. When it happens at the time of separation that all the children are grown-up daughters, they are allowed a free choice between the parents. Should none remain with the father, the mother and daughters are entitled to all the property gained during marriage.[805] Often in case of divorce the children belong to the innocent party;[806] unless children are regarded as a burden, when the opposite rule prevails;[807] or unless the system of kinship determines the disposition of the offspring, when an equitable adjustment is otherwise made. Thus among the African Fantis of the Gold Coast—where by law the children belong to the mother's family—in case of divorce through fault of the woman, the man is entitled to a sum equal to 22s. 6d. for each child; and when by stipulation the sons remain with the father, he is nevertheless not permitted to sell them or put them in pawn. If the divorced wife cannot restore to the husband the price paid for her, the children are left with him as a pledge for the debt until by their service they have paid it with 50 per cent. interest. In this way, we are told, children often become slaves for life to their own father and as such are even transmitted to his heirs.[808]

Very similar in variety and character are the rules governing the disposition of the property when a marriage is dissolved. These are mainly dependent in each case upon the general principles of the family law relating to property rights.[809] Sometimes, as among the South Slavonians,[810] each receives back the property which he had at the time of the marriage, while the common earnings are divided, though not always in equal portions.[811] But as the most general rule responsibility for the divorce is of vital importance in determining the course to be pursued. The man or the woman who arbitrarily dissolves the marriage, or whose guilty conduct is the cause of separation, usually suffers a decided disadvantage. Thus the woman must restore the dotal gift or the presents received from her husband; and the purchase price must be repaid by herself or by her kindred. On the other hand, the man who puts away his wife without just cause must often forfeit all claim to restitution of the bride-money, perhaps lose his children, and even suffer other penalties besides, such as the payment of alimony.[812]