A History of Matrimonial Institutions, Vol. 1 of 3

by George Elliott Howard

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]