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