A History of Matrimonial Institutions (Vol. 1-3). George Elliott Howard
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