This is confirmed by the following comparison of two statements. The first, that of Collins, stating the existence of a crude form of marriage by capture runs thus: "These unfortunate victims [the wives] of lust and cruelty ... are, it is believed, always selected from the women of a different tribe from that of the males (for they ought not to be dignified with the title of men), and with whom they are at enmity.... The poor wretch is stolen upon in the absence of her protectors. Being first stupefied with blows, inflicted with clubs or wooden swords, on the head, back and shoulders, every one of which is followed by a stream of blood, she is then dragged away through the woods by one arm, with a perseverance and violence that it might be supposed would displace it from its sockets." In this manner the woman is said to be dragged to the man's camp, where "a scene ensues too shocking to relate."[144] The second statement made by one of Howitt's reliable correspondents, depicts the state of things with quite different colours: "When a young man has passed a certain number of Boras (initiations) he has a right to choose a wife from among the unmarried and otherwise unappropriated women of the tribe who are of the class permitted to him by the native laws. He claims the girl in the presence of her parents by saying 'I will come and take you by and by,' and they cannot refuse her to him unless he be specially disqualified—as, for instance, if his 'hands are stained with the blood of any of her kin.' And even in that case he may carry her off by force if he can in spite of their refusal. For this purpose he generally comes by stealth and alone. But if he be a very bold warrior, he sometimes goes openly to the girl's camp and carries her off, defying the bravest of her friends to meet him in single combat if they dare to stay him."[145] In this second statement it may be noted that only the unappropriated girls of the tribe and those who are lawfully marriageable may be obtained in this way. Besides, this proceeding appears much more in the light of elopement than capture.
Important it is to note that in utter contradiction with those few statements, made by some early observers in New South Wales, capture is usually reported to be merely an exceptional form of contracting marriage. That it was in existence in nearly all tribes seems beyond doubt. Spencer and Gillen, Howitt,[146] Curr[147] mention that marriage by capture occurred. But all these authors add emphatically that this was the most exceptional mode of acquiring a wife.[148] And it appears from Spencer and Gillen's account that capture is effected rather by an avenging party than by an individual enterprise. And even in the case of capture, possession does not mean right. The woman must belong in the first place to the right class (Rusden, Spencer and Gillen), and in the case related by Spencer and Gillen she had to be especially allotted to one of the men by the leader of the party.
Elopement on the other hand is, as we mentioned above, to be found in nearly all tribes. In all cases it is considered as an encroachment on the rights of the family or of the husband over the girl, and it is punished. But the severity of punishment seems to vary according to the tribe; in the Kurnai elopement was probably the most usual way of getting married; it was therefore not so severely punished. The latter seems to apply to all Victorian and New South Wales tribes. In the Central tribes charming by magic and subsequent elopement led to a fight or ordeal, but the matter was apparently not very serious. Whereas, we read in Roth, Grey, Salvado and Oldfield that the punishment was death.[149] Nevertheless, as we have come to the conclusion that these three statements are not quite clear on this point, we may not take this for granted as a geographical distinction between the South-Eastern and North-Western (including W. Queensland) regions. It may be also that abduction of a woman was punished by death or at any rate more severely in case she belonged to a forbidden class.
In general it may be said that elopement was always punished, and in the majority of cases afterwards, under certain conditions, legalized and acknowledged. These conditions are: in the first place that bride and bridegroom belong to the right class; and then, pregnancy of the woman or the birth of a child (Kurnai, Yuin); or a victory in the fight which ensues after the offender has been caught (Kurnai, Yuin, Davis, Central tribes); or subsequent exchange of a relative (Yuin, L. Murray, Wakelbura); or a second or third elopement (Kurnai, W. Victoria). Victory in a combat did not mean that it was by pure force that the offender kept the woman. For these combats were regulated and often assumed the form of an ordeal to be undergone (Central and Northern tribes). It is well to notice that the majority of our informants when speaking of elopements never observe the point whether the woman was already married or not.
A few theoretical conclusions from all the facts just enumerated may now be drawn. We have asked at the outset for all the actual circumstances, as well as legal factors connected with the modes of obtaining wives, which express and enforce the validity of marriage. We asked also how does the mental attitude of the native express itself in these facts, as far as individual marriage is concerned. Must we admit that the aborigines have an idea of individual conjugal rights?
In the first place it is quite obvious that according to our definitions of the word legal, the ideas of legal and illegal may be applied quite legitimately to the Australian marriage. For there exist different norms, the compliance with which assures to a match its recognition by society, and actual protection at its hands. Whereas, if a marriage was brought about outside these legal norms it had either to be legalized afterwards, whereupon it enjoyed the same privileges, or it was considered illegal and was interfered with. It appears, moreover, from all the facts reviewed that it was always a difficult matter to secure a wife outside the usual forms. The legal norms for marriage consisted in the bringing about the marriage in one of the forms discussed above, and consequently in the fulfilment of the series of conditions, obligations and duties connected therewith. In all these forms there is involved some kind of control of the social group concerned, which enforces the mutual obligations, and which in case of breach of contract had the privilege or the duty of amending the wrong. In the most frequent form, i. e. when a female child is promised in infancy, her family is under an obligation to keep the arrangement. Her relatives have not the right to dispose of her otherwise after they have once promised her (Curr, i. 107), and they must also watch over her and prevent any attempt at capture or elopement, as they would have the duty of rescuing her (Curr, Stanbridge). In this case we are also told that the respective local group would interfere. The fact that the engagement was made publicly, and so was known and acknowledged by all the members of the local group and perhaps even of the whole tribe, emphasized its legal aspect. The cases where the tribal authority disposed of the girls or had to give consent itself shows this in a still stronger degree. We see therefore that two social factors were involved in the legal side of the marriage: the family, which was responsible for the carrying out of marriage and often for its maintenance,[150] and the community,[151] which gives its consent and often controls the right performance of expiatory ordeals. It may also be remarked that the mere moral sanction, which stamps one act as right and another as wrong, gives a strong support to the offended party and paralysed the help that the friends would perhaps like to give to the offender. Although it is difficult to adduce sufficient evidence in order to show in detail what were the obligations of the family and where the tribal supervision began—and it seems that these matters were possibly settled only roughly and on broad lines in the Australian society—one thing appears quite clearly from the whole evidence, viz. that in all tribes only those couples were secure from any interference who had married according to the legal form or whose marriage was subsequently legalized. We are informed by Spencer and Gillen that in some cases (when elopement was brought about by magic) there were some relatives who were lawfully entitled to help the eloper. This shows also clearly how little the settlement of these affairs was arbitrary. Elopement was in this case, and in all others, considered as a trespass; when it was a girl it was an encroachment on the rights of the family; when it was a married woman it was an offence against her husband and also perhaps against her family. According to circumstances and varying with the tribe, it was considered as a more or less serious trespass and punished accordingly. In order that an elopement might result in an acknowledged union, it had to be followed always and invariably by certain expiatory acts. Even in the case of capture, we saw in the example given by Spencer and Gillen that the woman was lawfully allotted to one of the party. Individual capture seems to occur very seldom; in its legal aspect it would not differ essentially from the elopement, but it would have had probably less chances of being made valid.
After the legal aspect of marriage has thus been established, it may be pointed out that several of the features of Australian marriage and betrothal set up, besides these legal bonds, other ties which in themselves lead to the carrying out of marriage, and afterwards keep husband and wife together.
In the first place, exchange of women. When a man was to receive a wife in exchange for his relative, it is clear that he felt himself strongly bound to keep his promise; for he lost as much as his partner in case he broke the agreement. We saw also that betrothal established a certain status between the families of the male and the female respectively. This status, the main feature of which was exchange of gifts, with a preponderance of the male's gifts and duties, such as providing food, created certain obligations which further enforced the validity of the contract.
As pointed out above, we can even find, at least in the Central and Northern tribes, clear features of marriage by purchase. Equally important in this light is the fact of exchange of females. This has its theoretical consequences. The two main facts of collective psychology, expressed by marriage by purchase, are (1) that there is a certain value attached to the woman and expressed by the conventional price; (2) that there is the idea of right of property or at least of the individual personal right of the husband over his wife, acquired by him through the fact of purchase. These two facts are very important. For both these sets of ideas can only have been evolved in a society where individual marriage was a well-known, well-recognized and fundamental institution. There would have been no reason to pay for a wife if the possession of her would confer no positive rights on the owner.
The following point may also be adduced here, viz. that generally the old men and other men of influence and power secured the young females of the tribes. It was easier for influential and important men to maintain their right over their wives before as well as after actual possession. Besides, we are informed by all (with the exception of R. H. Mathews) that the rules of exogamy were very strong, excluding in the majority of tribes a good number of females from all attempts by the males of forbidden classes. This undoubtedly contributed also to increase the security and validity of the marital union, by reducing to very few the number of the men who were in a position to interfere with the rights of the husband.