Thus English marriage ends, as it began, in a simple contract; but the state has succeeded in imposing upon it the condition of publicity—a task which the church first attempted, but failed to accomplish.[1470]
FOOTNOTES:
[1] "The expression 'human marriage' will probably be regarded by most people as an improper tautology. But, as we shall see, marriage, in the natural-history sense of the term, does not belong exclusively to our own species. No more fundamental difference between man and other animals should be implied in sociological than in biological and psychological terminology. Arbitrary classifications do science much injury."—Westermarck, History of Human Marriage, 6. In like spirit, Hellwald entitles his book Die menschliche Familie.
[2] A brief and clear account of some of the more important works is given by Bernhöft, "Zur Geschichte des europäischen Familienrechts," ZVR., VIII, 4 ff., 384 ff. Compare the criticisms of Spencer, Starcke, and Westermarck contained throughout their respective treatises.
[3] For a proof of the efficiency with which the "statistical method" may be applied to anthropological and sociological questions, see the paper of Dr. Tylor, "On a Method of Investigating the Development of Institutions, Applied to Laws of Marriage and Descent," Journal of the Anthropolog. Institute, Feb., 1889, 245-69. Cf. Westermarck, Human Marriage, 1-7; Starcke, Primitive Family, 1-16; Bernhöft, op. cit., 1-4.
[4] See the suggestive paper of Winsor, "The Perils of Historical Narrative," Atlantic Monthly (Sept., 1890), LXVI, 289-97.
[5] Bernhöft, op. cit., 1-4, has noted the danger of inference, especially from written laws, where there has been a mixture of races and institutions: "Denn die Rechtsinstitute sind eben nicht aus einem einheitlichen Prinzip erwachsen, sondern aus einem Kompromiss verschiedener Prinzipien entstanden, welche sich gegenseitig einschränken und durchbrechen."
[6] It is a merit of Westermarck's book that he has "put particular stress upon psychological causes which have often been deplorably overlooked."—Op. cit., 5. Cf. also Starcke, op. cit., 4.
[7] "Yet nothing has been more fatal to the Science of Society than the habit of inferring, without sufficient reasons, from the prevalence of a custom or institution among some savage peoples, that this custom, this institution, is a relic of a stage of development that the whole human race once went through."—Westermarck, op. cit., 2. Cf. Post, Studien zur Entwicklungsgeschichte des Familienrechts, 1-3, 58.