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 It is due to polyandry occasioned by a scarcity of women; it leads to exogamy; and it is generally superseded by contract in the form of wife-purchase.[473] The evidence of the former universality of the custom is derived from two sources: first, the existence of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.