407. Burning of widows. It appears certain that the primitive Aryans practiced the burning of widows, perhaps by the choice of the widows, and that the custom declined in the Vedic period of India. The burning of widows and the levirate could not exist together.[1291] As Manu[1292] gives rules for the behavior of widows (not name any man but the deceased husband; not remarry), he assumes that they will live. The custom of suttee was strongest in the lower castes.[1293] Akbar, the Mogul emperor, forbade suttee about 1600.[1294] He acted from the Mohammedan standpoint. His ordinance had no effect on the usage. The English put an end to the custom in 1830. This did not affect the native states, where the latest instance reported took place in 1880.[1295] A man who knows India well says that it was no kindness to widows to put a stop to suttee because, if they live on, their existence is so wretched that death would be better. Wilkins[1296] quotes a Hindoo widow's description of the treatment she received, which included physical abuse and moral torture. She was addressed as if she was to blame for the death of her husband. The head of a widow is shaved, although Hindoo women care very much for their hair. She is allowed but one meal a day and must fast frequently. She is shunned as a creature of ill omen. Inasmuch as girls are married at five or six, all this may happen to a child of ten or twelve, if her husband dies, although she never has lived with him. In 1856 the English made a law by which widows might remarry, but the higher classes very rarely allow it. If they do allow it, the groom is forced to marry a tree or a doll of cotton, so that he too may be widowed. The mores resist any change which is urged, although not enforced, by people of other mores. The reforms proposed in the treatment of widows have no footing at all in the experience and the judgment of Hindoos, if we except a few theists in Calcutta, and they have never taken a united and consistent position. Monier-Williams[1297] describes the case of a man who married a widow. He was boycotted so completely that all human fellowship was denied him. He had to go to a distant place and take a position under the government. Among the lower castes of the Bihari Hindoos a widow may marry the younger brother of her deceased husband, to whom her relation is always one of especial intimacy and familiarity.[1298]

408. Difficulty of reform. It appears that the difficulty about the remarriage of widows is due to the fact that it runs counter to fundamental religious ideas. The Hindoo reformers are charged with using forms of wedding ceremony which are inconsistent with facts. Some widows are virgins, but there is not always a father or mother to give them away by the formula of "virgin gift." The women all have a notion, taken from the words of a heroine in the Mahabharata, that a woman can be given but once.[1299] They cling to the literal formula. By the form of first marriage also a woman passes into the kin of her husband for seven births (generations), the limit of degrees of consanguinity. It is irreligious and impossible to change the kin again, because consequences have been entailed which run seven generations into the future.[1300] This is all made to depend, not on the consummation of the marriage, but on the wedding or even betrothal. The census shows that the taboo on the remarriage of widows and the custom of child marriage extend and increase together.[1301] Where husbands are scarce girls are married in childhood in order to secure them, and widows are not allowed to remarry.[1302] By the remarriage of widows rajpoots and rajpoot families lose their rank and precedence.[1303] In Homer the remarriage of men is rare, and only one stepmother is mentioned.[1304] The prejudice against second marriages continued amongst the Greeks, even for men, for whom second marriage was restrained, in some parts of Greece by political disabilities, if the man had children. The reason given was that a man who had so little devotion to his family would have little devotion to his country.[1305] In the classical period widows generally married again. Sometimes the dying husband bequeathed his widow. In later times some widows contracted their own second marriages.[1306] Marcus Aurelius would not take a second wife as a stepmother for his children. He took a concubine. Julian, after the death of his wife, lived in continence.[1307] On Roman tombstones of women the epithet "wife of one husband" was often put as praise.[1308]

409. Widows and remarriage in the Christian church. The pagan emperors of Rome encouraged second marriages as they encouraged all marriage, but the Christian emperors of the fourth century took up the ascetic tendency. About 300 the doctrine was, "Every second marriage is essentially adultery."[1309] Augustine, in his tract on "Continence," uttered strong and sound doctrine about self-control and discipline of character. In the tract on the "Benefit of Marriage" he defended marriage, intervening in a controversy between Jerome and Jovinian, in which the former put forth the most extravagant and contradictory assertions about virginity. Augustine's formula is: "Marriage and fornication are not two evils of which the second is worse, but marriage and continence are two goods, of which the second is better." Although this statement is very satisfactory rhetorically, it carries no conclusion as to the rational sense of regulation of the sex passion, or as to the limit within which regulation is beneficial. Augustine laid great stress on 1 Cor. vii. 36. In a tract on "Virginity" he glorified that state according to the taste of the period. In a tract on "Widowhood" (chaps. 13 and 14), he repudiated the extreme doctrine about second and subsequent marriages, but he exhorted widows to continence. The church fathers, like the mediaeval theologians, had a way of admitting points in the argument without altering their total position in accordance with the admissions or concessions which they had made. The positions taken by Augustine in these tracts about the sex mores cannot be embraced in an intelligible and consistent statement. "At a period of early, although uncertain, date the rule became firmly and irrevocably established, that no digamus, or husband of a second wife, was admissible to Holy Orders; and although there is no reason for supposing that marriage after taking orders was prohibited to a bachelor, it was strictly forbidden to a widower."[1310] So it came about that, inasmuch as marriage was, in any case, only a concession and a compromise, and in so far a departure from strict rectitude, a second marriage was regarded with disfavor, and any subsequent ones were regarded with reprobation which increased in a high progression. This has remained the view of the Eastern church, in which a fourth marriage is unlawful. The Western church has not kept the early view, and has set no limit to remarriage, but orthodox and popular mores have frowned upon it after the second or, at most, the third. In Arabia, before the time of Mohammed, widows were forced into seclusion and misery for a year, and they became a class of forlorn, almost vagabond, dependents. It was a shame for a man if his mother contracted a second marriage.[1311] In the Middle Ages popular reprobation was manifested by celebrations which were always grotesque and noisy, and sometimes licentious. They were called charivaris. They were enacted in case of the remarriage of widows and sometimes in the case of widowers. They are said to have been a very ancient custom in Provence.[1312] This might mean that opposition to second marriages was due to Manichaean doctrines which were widely held in that region. The customs of popular reprobation were, however, very widespread, and nowadays amongst us the neighbors sometimes express in this way their disapproval of any sex relations which are in any way not in accord with the mores. In the Salic law it was provided that any woman who married a second time must do so at night.[1313] The other laws of the barbarian nations contain evidence of disapproval.[1314] Innocent III ruled, in 1213, that a man did not incur the ecclesiastical disabilities of second marriage, "no matter how many concubines he might have had, either at one time or in succession."[1315] The mediaeval coutumes of northern France are indifferent to second marriages.[1316] The ancient German custom approved of the self-immolation of a widow at her husband's death, but did not require it. The remarriage of widows was not approved and the widows did not desire it. This was a consequence of the ancient German notion of marriage, according to which a wife merged her life in that of her husband for time and for eternity.[1317] The usage, however, was softened gradually. The widow got more independence, and more authority over her children and property, over the marriage of her daughters, and at last the right to contract a second marriage after a year of mourning.[1318] In England, in the eleventh century, a widow's dower could not be taken to pay her husband's taxes, although the exchequer showed little pity for anybody else. The reason given is that "it is the price of her virginity."[1319] The later law also exempted a wife's dower from confiscation in the case of any criminal or traitor.[1320] In the seventeenth and eighteenth centuries, in France, "a period in which, perhaps, people supported widowhood less willingly than in any other," the actual usages departed from the acknowledged standards of right and propriety.[1321] The same was true in a greater or less degree elsewhere in Europe, and the widowed probably destroyed the prejudice against remarriage by their persistency and courage in violating it. In the American colonies it was by no means rare for a widow or widower to marry again in six or even in three months.

410. Remarriage and other-worldliness. It is evident that the customs in regard to the treatment of widows, second marriages, etc., are largely controlled by other-worldliness. If the other world is thought of as close at hand, and the dead as enjoying a conscious life, with knowledge of all which occurs here, then there is a rational reluctance to form new ties by which the dead may be offended. If the other world and its inhabitants are not so vividly apprehended, the living pursue their own interests, and satisfy their own desires.

411. Tree marriage. In several cases which have been presented, we have seen how the folkways devise means of satisfying interests in spite of existing (inherited) institutions which bear injuriously on interests. A remarkable case of this kind is tree marriage amongst the Brahmins of southern India. The established opinion is that a younger brother ought not to marry before an older one. The latter may be willing. That is immaterial. The device is employed of marrying the older brother to a tree, or (perhaps the idea is) to a spirit which resides in the tree. He is then out of the way and the younger brother may marry.[1322]

412. The Japanese woman. The Japanese woman has been formed in an isolated state, of a militant character, with strong and invariable folkways. "Before this ethical creature, criticism should hold its breath; for there is here no single fault, save the fault of a moral charm unsuited to any world of selfishness and struggle.... How frequently has it been asserted that, as a moral being, the Japanese woman does not seem to belong to the same race as the Japanese man!... Perhaps no such type of woman will appear again in this world for a hundred thousand years: the conditions of industrial civilization will not admit of her existence.... The Japanese woman can be known only in her own country,—the Japanese woman as prepared and perfected by the old-time education for that strange society in which the charm of her moral being,—her delicacy, her supreme unselfishness, her childlike piety and trust, her exquisite tactful perception of all ways and means to make happiness about her,—can be comprehended and valued.... Even if she cannot be called handsome according to western standards, the Japanese woman must be confessed pretty,—pretty like a comely child; and if she be seldom graceful in the occidental sense, she is at least in all her ways incomparably graceful: her every motion, gesture, or expression being, in its own oriental manner, a perfect thing,—an act performed, or a look conferred, in the most easy, the most graceful, the most modest way possible.... The old-fashioned education of her sex was directed to the development of every quality essentially feminine, and to the suppression of the opposite quality. Kindliness, docility, sympathy, tenderness, daintiness,—these and other attributes were cultivated into incomparable blossoming. 'Be good, sweet maid, and let who will be clever; do noble things, not dream them, all day long,'—those words of Kingsley really embody the central idea in her training. Of course the being, formed by such training only, must be protected by society; and by the old Japanese society she was protected.... A being working only for others, thinking only for others, happy only in making pleasure for others,—a being incapable of unkindness, incapable of selfishness, incapable of acting contrary to her own inherited sense of right,—and in spite of this softness and gentleness ready, at any moment, to lay down her life, to sacrifice everything at the call of duty: such was the character of the Japanese woman."[1323]

[1129] Campbell, Differences in the Nervous Organization of Men and Women, 29.

[1130] Ibid., 43.

[1131] Ibid., 34.

[1132] Campbell, Differences in the Nervous Organization of Men and Women, 46.

[1133] Ibid., 45.

[1134] Ibid., 68.

[1135] Ibid., 66.

[1136] Ibid., 53 f.

[1137] Ibid., 223.

[1138] Ibid., 84.

[1139] Ibid., 90.

[1140] Ibid., 133.

[1141] West Afr. Studies, 375.

[1142] Globus, LXXXIII, 285.

[1143] Bebel, Die Frau, 73.

[1144] Decret. Gratiani, II, c. XXXII, qu. iv, c. 7.

[1145] Molmenti, Venezia nella Vita Privata, 393.

[1146] For cases see JAI, XXIII, 364.

[1147] Globus, LXXXVII, 179 (Caroline Isl.).

[1148] Globus, LXXXIII, 312.

[1149] Xenophon, Lacedaemon, I, 7, 8; Plutarch, Lycurgus, 15.

[1150] Pellison, Roman Life in Pliny's Time, 100.

[1151] Third Journey (russ.), 259.

[1152] Ladak, 306.

[1153] Molmenti, Venezia nella Vita Privata, 386.

[1154] Madras Gov. Mus., III, 227.

[1155] Zimmer, Altind. Leben, 313; JASB, II, 316, 319; JAI, XII, 291.

[1156] Lane, Modern Egyptians, I, 274, Cf. Snouck-Hurgronje, Mekka, II, 106 ff.

[1157] Hauri, Islam, 135.

[1158] Madras Gov. Mus., III, 229.

[1159] Rockhill in U. S. Nat. Mus., 1893, 677.

[1160] Bishop, Among the Thibetans, 92.

[1161] Herod., I, 173.

[1162] Schoemann, Griech. Alterthuemer, I, 51.

[1163] Descent of Man, 590.

[1164] Westermarck, Marriage, 130.

[1165] Sarasin, Veddahs, 462.

[1166] Schmidt, Ceylon, 277.

[1167] Bijdragen tot T. L. en V.-kunde, XXXV, 215.

[1168] Soc. Einrichtungen der Pelauer, 59.

[1169] Umschau, VI, 52, after Haeckel, Aus Insulinde.

[1170] Ehe bei den Arabern, 447.

[1171] Krieger, Neu Guinea, 300, 321.

[1172] London Graphic, 1902, 534.

[1173] Cults of the Greek States, 448.

[1174] Strange, Hindu Law, I, 57.

[1175] Economica, I, 4.

[1176] Politics, VII, 16. [1177] VII-IX.

[1178] Epist., XCIV, 26.

[1179] Ibid., XCV, 39.

[1180] Opera (Paris, 1635), VI, 358.

[1181] Digest, XLVIII, 13, 5.

[1182] Act IV, scene 8.

[1183] Migne, Patrol. Latina, XXII, 691.

[1184] Lecky, Eur. Morals, II, 346.

[1185] Od., I, 433.

[1186] Lecky, Eur. Morals, II, 347.

[1187] Ibid., 135.

[1188] Globus, LXXV, 271.

[1189] Wilkins, Modern Hinduism, 159.

[1190] Wellhausen, Ehe bei den Arabern, 450.

[1191] Ibid., 432.

[1192] Hauri, Islam, 124.

[1193] Ibid., 131.

[1194] Hauri, Islam, 121.

[1195] Cf. Snouck-Hurgronje, Mekka, II, 110 ff.

[1196] Smithson. Rep., 1895, 673.

[1197] Od., XVI, 392; XX, 74; XXI, 162.

[1198] Iliad, IX, 341.

[1199] Od., VI, 180.

[1200] Factorum et Dictorum Memorabilium libri novem, IV, 6.

[1201] Metamor., VIII.

[1202] Pliny, Letters.

[1203] Friedlaender, Sittengesch., II, 410.

[1204] E.g. Burnt Njal, 238.

[1205] Holtzmann, Ind. Sagen, I, 253.

[1206] Ibid., 256.

[1207] Nivedita, Web of Indian Life, 33.

[1208] Ibid., 45.

[1209] Globus, LXXXII, 104, 187-194, 279.

[1210] Ibid., 322.

[1211] Strausz, Die Bulgaren, 309.

[1212] Globus, LXXIX, 155.

[1213] Madras Gov. Mus., II, 162.

[1214] Globus, LXXXII, 323.

[1215] Globus, LXXXII, 321.

[1216] Ralston, Songs of the Russ. People, 7.

[1217] Globus, LXXVI, 316.

[1218] Ralston, as above, 65.

[1219] Ztsft. f. vergl. Rechts-wsnsft., XIV, 180.

[1220] Ecole d'Anthrop. de Paris, XIV, 411.

[1221] Schultz, Hoef. Leben, I, 581, and the whole of Chap. VII; Scherr, D.F.W.I., 220.

[1222] Migne, Patrol. Lat., Vol. 210.

[1223] Line 18,580.

[1224] I, 90, 92, 251; III, 103, 104 (in spite of love), 109, 167, 278.

[1225] III, 171.

[1226] I, 150.

[1227] D. L., 271, 276, 277.

[1228] Schultz, D. L., 259, 271-277.

[1229] Lichtenberger, Poeme des Nibelungen, 380.

[1230] Ibid., 390.

[1231] Nibelungen, line 837.

[1232] Lichtenberger, 368, 375, 391, 400; Uhland, Dichtung und Sage, 315.

[1233] Barthold, Hansa, III, 178.

[1234] Schultz, D. L., 414.

[1235] Weinhold, D. F., II, 209.

[1236] Eicken, Mittelalt. Weltanschauung, 467.

[1237] Hist. de Paris, 268.

[1238] Schultz, D. L., 277.

[1239] Ibid., 283; cf. Janssen, VIII, 391.

[1240] Herod., IV, 104.

[1241] See sec. 366.

[1242] See sec. 178.

[1243] Lea, Sacerd. Celibacy, 203, note.

[1244] JAI, XXIV, 119.

[1245] Eur. Morals, II, 348.

[1246] Maspero, Peuples de l'Orient, I, 736.

[1247] Plutarch, Romulus, 22.

[1248] Plutarch, Comp. of Numa and Lykurgus.

[1249] Tacitus, Annals, I, 10.

[1250] Plutarch, Cato.

[1251] Valer. Maxim., VI, 3, 12.

[1252] Sat., VI, 230.

[1253] Apolog., 6.

[1254] Epist., 2.

[1255] Epist., 95; Consolation to his Mother, 16.

[1256] Dill, Nero to M. Aurel., 87.

[1257] Ibid., 188.

[1258] Cook, Fathers of Jesus, II, 142.

[1259] Grupp, Kulturgesch. der Roem. Kaiserzeit, 113.

[1260] Heusler, Deut. Privatrecht, II, 291.

[1261] Reichel, Canon Law, I, 343.

[1262] Mann und Weib, 32.

[1263] JAI, XVIII, 288.

[1264] Austral. Assoc. Adv. Sci., 1892, 704.

[1265] Schomburgk, Brit. Guiana, I, 122, 164; JAI, XXIV, 205.

[1266] Peterm. Mittlgen, Erg. heft, XXV, 9.

[1267] Holm, Angmagslikerne, 52; Nelson in Bur. Eth., XVIII, Part i, 292.

[1268] Borneo, I, 194.

[1269] Bijdragen tot T.L. en V.-kunde, XXXV, 161, 165; Wilken, Volkenkunde, 277.

[1270] IX, 88, 93, 94.

[1271] XI, 59, 171.

[1272] Jolly, Recht und Sitte der Indo-Arier, 54, 58.

[1273] Jolly, Stellung der Frauen bei den allen Indern, 425.

[1274] Strange, Hindu Law, I, 35.

[1275] Gehring, Sued-Indien, 78, 80.

[1276] IX, 90.

[1277] Jo. Soc. Comp. Legisl., N. S., VIII, 253.

[1278] Jolly, Recht und Sitte, 54.

[1279] Madras Gov. Mus., II, 162.

[1280] Monier-Williams, Brahmanism and Hinduism, 354.

[1281] Pol.-Anth. Rev., III, 711.

[1282] Winckler, Gesetze des Hammurabi, 22.

[1283] Grimm, Rechts-Alt., 436.

[1284] Furnival, Child-marriages, XXVII, XXXIX, XL.

[1285] Hauri, Islam, 131.

[1286] Modern Egyptians, I, 268, 466.

[1287] JAI, X, 138.

[1288] Rubruck, Eastern Parts, 78.

[1289] Kohler and Peiser, II, 9.

[1290] Holtzmann, Ind. Sagen, I, 258.

[1291] Zimmer, Altind. Leben, 328-331.

[1292] V, 157, 161-164.

[1293] Jolly, Stellung der Frauen, 448.

[1294] Nineteenth Cent., XLV, 769.

[1295] Wilkins, Modern Hinduism, 391.

[1296] Ibid., 365.

[1297] Brahmanism and Hinduism, 472.

[1298] JASB, VI, 119.

[1299] Cf. sec. 376.

[1300] JASB, VI, 376.

[1301] Jolly, Recht und Sitte, 61.

[1302] JAI, XII, 290.

[1303] Ethnol. App. Census of India, 1901, 74-75.

[1304] Keller, Homeric Society, 227; Iliad, XXII, 477; V, 389.

[1305] Diodorus Siculus, XII, 12.

[1306] Becker-Hermann, Charikles, III, 289.

[1307] Lecky, Eur. Morals, II, 316.

[1308] Friedlaender, Sittengesch., I, 411.

[1309] Athenagoras, Apolog., 28; Constit. Apost., III, 2.

[1310] Lea, Sacerd. Celibacy, 35.

[1311] Wellhausen, Ehe bei den Arabern, 433, 455.

[1312] Jolly, Seconds Mariages, 194.

[1313] Ibid., 177.

[1314] Ibid., 193.

[1315] Lea, Sacerd. Celib., 283.

[1316] Jolly, Seconds Mariages, 193.

[1317] Tacitus, Germ., 19.

[1318] Stammler, Stellung der Frauen im alten Deutschen Recht, 37.

[1319] Dialog. of the Exchequer, B 2, XVIII.

[1320] Pike, Crime in England, I, 428.

[1321] Jolly, Seconds Mariages, 202.

[1322] Jolly, Recht und Sitte der Indo-Arier, 59; Hopkins, Religions of India, 541; Kohler, Urgesch. der Ehe, 28.

[1323] Hearn, Japan, 393 ff.



CHAPTER X

THE MARRIAGE INSTITUTION

Mores lead to institutions.—Aleatory interest in marriage and the function of religion.—Chaldean demonism and marriage.— Hebrew marriage before the exile.—Jewish marriage after the exile.—Marriage in the New Testament.—The merit of celibacy.—Marriage in early Christianity.—Marriage in the Roman law.—Roman "free marriage."—Free marriage.—Transition from Roman to Christian marriage.—Ancient German marriage.— Early mediaeval usage.—The place of religious ceremony.—The mode of expressing consensus.—Marriage at the church door.— Marriage in Germany, twelfth century.—The canon law.—Mediaeval marriage.—Conflict of the mores with the church programme.— Church marriage; concubines.—The church elevated the notion of marriage.—The decrees of Trent about marriage.—Puritan marriage.

413. Mores lead to institutions. We have seen in Chapter IX that the sex mores control and fashion all the relations of the sexes to each other. Marriage, under any of its forms (polygamy, polyandry, etc.), is only a crystallization of a set of these mores into an imperfect institution, because the relation of a woman, or of women, to a husband becomes more or less enduring, and so the mores which constitute the relation get a stability and uniformity of coherence which makes a definable whole, covering a great field of human interest and life policy. It is not a complete specimen of an institution (sec. 63). It lacks structure or material element of any kind, but the parties are held to make good the understandings and cooperative acts which the mores prescribe at all the proper conjunctures, and thus there arises a system of acts and behavior such as every institution requires. In civilized society this cluster of mores, constituting a relationship by which needs are satisfied and sentiments are cherished, is given a positive form by legislation, and the rights and duties which grow out of the relationship get positive definition and adequate guarantees. This case is, therefore, a very favorable one for studying the operation of the mores in the making of institutions, or preparing them for the final work of the lawmaker.

414. Aleatory interest in marriage and the function of religion. The positive history of marriage shows that it has been always made and developed by the mores, that is to say, by the effort of adjustment to conditions in such a way that self-realization may be better effected and that more satisfaction may be won from life. The aleatory element (sec. 6) in marriage is very large. Marriage is an interest of every human being who reaches maturity, and it affects the weal and woe of each in every detail of life. Passing by the forms of the institution in which the wife is under stern discipline and those in which the man can at once exert his will to modify the institution, it may be said of all freer forms that there is no way in which to guarantee the happiness of either party save in reliance on the character of the other. This is a most uncertain guarantee. In the unfolding of life, under ever new vicissitudes, it appears that it is a play of luck, or fate, what will come to any one out of the marital union with another. Women have been more at the sport of this element of luck, but men have cared much more for their smaller risk in it. Therefore, at all stages of civilization, devices to determine luck have been connected with weddings, and in many cases acts of divination have been employed to find out what the future had in store for the pair. Marriage is a domestic and family affair. The wedding is public and invites the cooperation of friends and neighbors. Wedlock is a mode of life which is private and exclusive. The civil authority, after it is differentiated and integrated, takes cognizance and control of the rights of children, legitimacy, inheritance, and property. Religion, in its connection with marriage, takes its function from the aleatory interest. It is not of the essence of marriage. It "blesses" it, or secures the favor of the higher powers who distribute good and bad fortune. In a very few cases amongst savage tribes religious ceremonies "make" a marriage; that is, they give to it (to the authority of the husband) a superstitious sanction which insures permanence and coercion as long as the husband wants permanence and coercion. These cases are rare. The notion that a religious ceremony makes a marriage, and defines it, had no currency until the sixteenth Christian century.

415. Chaldean demonism and marriage. Chaldean demonism affected wedding ceremonies. The belief was that demons found their opportunities at great crises in life, when interest and excitement ran high. Then the demons rejoiced to exert their malignity on man to produce frustration and disappointment. Cases are not rare in which the consummation of marriage was deferred, in barbarism and half-civilization, to ward off this interference of demons. The Chaldean groom's companions led him to the bride, and he repeated to her the formulas of marriage: "I am the son of a prince. Silver and gold shall fill thy bosom. Thou shalt be my wife and I thy husband. As a tree bears abundant fruit, so great shall be the abundance which I will pour out on this woman." A priest blessed them and said: "All which is bad in this man do ye [gods] put far away, and give him strength. Do thou, man, give thy virility. Let this woman be thy spouse. Do thou, woman, give thy womanhood, and let this man be thy husband." The next morning a ritual was used to drive away evil spirits.[1324]

416. Hebrew marriage before the exile. In the canon of the Old Testament we get no information at all about wedding ceremonies, or the marriage institution. The reason for this must be that marriage was altogether a family and domestic affair. It was controlled by very ancient mores, under which marriage and the family were conducted, as beyond question correct. It is in the nature of the case, in all forms of the father family, that a girl until marriage was under the care and authority of her father or nearest male relative. The suitor must ask him to give her, and must induce him to give her by gifts. The transfer was made publicly that it might be known that she was the wife of such an one. The old Hebrew marriage seems to have consisted in this form of giving a daughter, in all its simplicity. We find a taboo on the union of persons related by consanguinity or affinity. Later there was a taboo on exogamic marriage. In the prophets there are metaphors and symbolical acts relating to marriage, which show a development of the mores in regard to it. The formulas which are attached to the prohibitions in Levit. xviii are in the form of explanations of the prohibitions or reasons for them, but they furnish no real explanations. Their sense is simply: For such is the usage in Israel, or in the Jahveh religion. That was the only and sufficient reason for any prescription. "After the consent of the parents of the bride had been obtained, which was probably attended by a family feast, the bridegroom led the bride to his dwelling and the wedding was at an end. No mention is made anywhere of any function of a priest in connection with it. It is not until after the Babylonian exile, after the Jews had become more fully acquainted with the mores and usages of other civilized peoples of that age, that weddings amongst them were made more solemn and ceremonial. After a betrothal a full year (if the bride was a widow, one month) was allowed the pair, after the captivity, to prepare their outfit, in imitation of the Persian custom (Esther ii. 12)." "At the end of the delay, the bride was led or carried to the house of the groom, in a procession, with dancing and noisy rejoicing, as is now the custom in Arabia and Persia. Ten guests must be present in the groom's house, as witnesses, where prayer formulas were recited and a feast was enjoyed." There were also prayers by all present at a betrothal "in order to give the affair a religious color." The pair retired then to a room where they first made each other's acquaintance. Then two bridesmen led them to the nuptial chamber where they watched over them until after the first conjugal union. This last usage was not universal, and after some experience of its ambiguous character it was abolished. The purpose was that there might be witnesses to the consummation of the marriage, not merely to the wedding ceremony. The whole proceeding was a domestic and family affair, in which no priest or other outsider had any part, except as witness, and there was no religious element in it.[1325] The prayer formulas were uttered by the participants and their friends, and they were formulas of invoking blessing, prosperity, and good fortune.

417. Jewish marriage after the exile. The Jewish idea of marriage was naive and primitive. The purpose was procreation. Every man was bound to marry, after the exile, and could be compelled to do so, and to beget at least one son and one daughter. By direct inference sterility made marriage void. It had failed of its purpose. It was the naivete of this notion of marriage which led to the provision of witnesses for the consummation of the marriage. Marriage meant carnal union under prescribed conditions, and nothing else. In Deut. xxii. 28 f. the rule is laid down that a man who violated a maid must remain her husband. This is another direct inference from the view of marriage. The ketubah was the document of a "gift on account of nuptials to be celebrated." It made the bride a wife and not a concubine or maid servant, for the distinction depended on the intention of the bridegroom. In the rabbinical period the betrothal and wedding were united. The wedding was made by a gift (a coin or ring), by a document (ketubah), or by the fact of concubitus.[1326] The man took the woman to wife by the formula: "Be thou consecrated to me," or later, "Be thou consecrated to me by the law of Moses and Israel." These formalities took place in the presence of at least ten witnesses, who pronounced blessings and wishes for good fortune. The third mode of wedding was forbidden in the third century A.D. In the Jewish notions of marriage we see already the beginning of the later casuistry. Procreation being the sense and purpose of marriage, the carnal act was the matter of chief importance. At the same time the Jews thought that copulation and childbirth rendered unclean. They must be rectified by purification and penance. Thus the act had a double character; it was both right and wrong. It was a conjugal duty not to be sensual.[1327] All this contributed to the modern notion of pair marriage, for at last no sex indulgence was allowed outside of legal marriage. When the custom of the presence of witnesses in the bride chamber produced dissatisfaction a tent was substituted for the chamber. Later a scarf, ceremoniously spread over the heads of the pair, took the place of the tent. The custom arose that the pair retired to a special room and took a meal together there. "The ceremony had no ecclesiastical character.... The blessings only gave publicity to the ceremony. They were not priestly blessings and were not essential to the validity of the marriage."[1328] So we see that, even amongst a people so attached to tradition as the Jews, when one of the folkways did not satisfy an interest, or outraged taste, the mores modified it into a form which could give satisfaction.

418. Marriage in the New Testament. According to the New Testament marriage is a compromise between indulgence and renunciation of sex passion. A compromise is always irrational when it bears upon concepts of right and truth, and not on mere expediency of action. The concept of right and truth on either hand may be correct; it is certain that the compromise between them is not correct. The compromise can be maintained only by disregarding its antagonism to the concepts on each side of it. For fifteen hundred years the Christian church fluttered, as in a moral net, in the inconsistencies of the current view of marriage. The procreation of children was recognized as the holiest function and the greatest responsibility of human beings, but it was considered to involve descent into sensuality and degradation. It was the highest right and the deepest wrong to satisfy the sex passion, and the two aspects were reconciled partially in marriage, by a network of intricate moral dogmas which must be inculcated by long and painful education. In the sixteenth century the problem was solved by repudiating the doctrine of celibacy as a meritorious and superior state, and making marriage a rational and institutional regulation of the sex relation, in which the aim is to repress what is harmful, and develop what is beneficial, to human welfare. This change was produced by and out of the mores. The Protestants denounced the falsehood and vice under the pretended respect for celibacy. The new view of marriage could not be at once fully invented and introduced. Therefore the Romanists pointed with scorn to the careless marriage and loose divorce amongst the Protestants (sec. 380).

419. Merit of celibacy. No reasons are ascertainable why Paul should maintain that celibacy is to be preferred to wedlock as a more worthy mode of life. In 1 Cor. vii. 32-34 he argues that the unmarried, being free from domestic cares, can care for the things of God. He speaks often of the degree of certainty he feels that he has with him the Spirit of God. This shows that he often lacked self-confidence in regard to his teachings. He does not seem to hold the ascetic view. In Ephes. v. 22 the marriage institution is accepted and regulated, with some mystical notions, which it is impossible to understand. Marriage and Christ's headship of the church are said to explain each other or to be parallel, but it is not possible to understand which of them is represented as simple and obvious, so that it explains the other. The apostle sometimes seems to lay stress on the vexations and cares of wedlock. If that is his motive, he announces no principle or religious rule, but only a consideration of expediency which is not on a high plane. Tertullian and Jerome (in anticipation of the end of the world) regarded virginity as an end in itself; that is to say, that they thought it noble and pious to renounce the function on which the perpetuation of the species depends. The race (having left out of account the end of the world) cannot commit suicide, and men and women cannot willfully antagonize the mores of existence—economic, social, intellectual, and moral, as well as physical—which are imposed on them by the fact that the human race consists of two complementary sexes. Jerome, in his tracts against Jovinianus, wanders around and around the absurdities of this contradiction. The ascetic side of it became the cardinal idea of religious virtue in the Middle Ages. "Monkish asceticism saw woman only in the distorting mirror of desire suppressed by torture."[1329] "Woman" became a phantasm. She was imaginary. She appeared base, sensual, and infinitely enchanting, drawing men down to hell; yet worth it. In truth, there never has been any such creature. In the replies of Gregory to Augustine (601 A.D.)[1330] arbitrary rules about marriage and sex are laid down with great elaboration. They are prurient and obscene. The mediaeval sophistry about the birth of Christ is the utmost product of human folly in its way. Joseph and Mary were married, but the marriage was never consummated. Yet it was a true marriage and Mary became a mother, but Joseph was not the father. Mary was a virgin, nevertheless. This might all pass, as it does in modern times, as an old tradition which is not worth discussing, but the mediaeval people turned it in every possible direction, and were never tired of drawing new deductions from it. At last, it consists in simply affirming two contradictory definitions of the same word at the same time. There are, in the mythologies, many cases of virgin birth. The Scandinavian valkyre was the messenger of the god to the hero and the life attendant of the latter. He loved her, but she, to keep her calling, must remain a virgin. Otherwise she gave up her divine position and deathlessness in order to live and die with him.[1331] The notion of merit and power in renunciation is heathen, not Christian, in origin. The most revolting application of it was when two married people renounced conjugal intimacy in order to be holy.

420. Marriage in early Christianity. In the earliest centuries of Christianity very little attention seems to have been paid to marriage by the Christians. It was left to the mores of each national group, omitting the sacrifices to the heathen gods. It is not possible to trace the descent of Christian marriage from Jewish, Greek, or Roman marriage, but the best authorities think that its fundamental idea is Jewish (carnal union), not Roman (jural relations).[1332] "The church found the solemn ceremonies for concluding marriage existing [in each nation]. No divine command in regard to this matter is to be found" [in the New Testament].[1333] The church, in time, added new ceremonies to suit its own views. Hence there was the same variety at first inside the church as there had been before Christianity. There can, therefore, be no doubt that, throughout the Latin branch of the church, the usages and theories of Roman marriage passed over into the Christian church. Lecky says that at Rome monogamy was from the earliest times strictly enjoined; and it was one of the greatest benefits that have resulted from the expansion of Roman power, that it made this type dominant in Europe.[1334] Although the Romans had strict monogamy in their early history, they had abandoned it before their expansion began to have effect, and monogamy was the rule, in the civilized world, for those who were not rich and great, quite independently of Roman influence, at the time of Christ. The Roman marriage of the time of the empire, especially in the social class which chiefly became Christians, was "free marriage," consisting in consensus and delivery of the bride. Richer people added instrumenta dotalia as documents to regulate property rights, and as proofs of the marital affection of the groom by virtue of which he meant to make the bride his wife, not his concubine. The marriage of richer people, therefore, had a guarantee which had no place between those who had no occasion for such documents. Life with a woman of good reputation and honorable life created a presumption of marriage. The church enforced this as a conscience marriage, which it was the man's duty to observe and keep.

421. Marriage in Roman law. In the corpus juris civilis there are two passages which deserve especial attention. In Dig., I, xxiii, 2, it is said: "Nuptials are a conjunction of a male and a female and a correlation (consortium) of their entire lives; a mutual interchange (communicatio) of rights under both human and divine law." In the Institutes (sec. I, i, 9) it is said: "Nuptials, or matrimony, is a conjunction of a man and a woman which constitutes a single course of life (individuam vitae consuetudinem)." These are formulas for very high conceptions of marriage. They would enter easily into the notion of pair marriage at its best. The former formula never was, amongst the Romans, anything but an enthusiastic outburst. Roman man and wife had no common property; they could make no gifts to each other lest they should despoil each other; their union, in the time of the empire, was dissoluble almost at pleasure; the father and mother had not the same relation to their children; the woman, if detected in adultery, was severely punished; the man, in the same case, was not punished at all. The "correlation of their entire lives" was, therefore, very imperfect. The sense of individuam vitae consuetudinem is very uncertain. It could not have meant merely the exclusive conjugal relation of each to the other, although such was the sense given to the words in the church. The law contained no specification of the mutual rights and duties of the spouses. These were set by the mores and varied very greatly in Roman history. Affectus maritalis (the disposition of a husband to a wife) and honore pleno deligere (to distinguish with complete honor) are alone emphasized as features of marriage which distinguished it from concubinage.[1335] Roman jurists took marriage as a fact, for at Rome from the earliest times, it had been a family matter, developed in the folkways. The civil law defined the rights which the state regarded as its business in that connection, and which it would, therefore, enforce.[1336]

422. Roman "free marriage." The passages quoted in the last paragraph refer to "free marriage" after the manus idea had been lost. They could be applied also to the German notion of marriage after the Germans abandoned the mund idea. They also correspond to the Greek view of marriage, for in Greece the authority of the father early became obsolete in its despotic form. From the time of Diocletian the woman who was sui juris was a subject of the state without intermediary, just as her brother or husband was, and she enjoyed free disposition of herself. The same view of marriage passed into the Decretals of Gratian and into our modern legislation.[1337]

423. Free marriage. At the end of the fourth century A.D. the church set aside the Roman notions of the importance of the dos and donatio propter nuptias, and made the consensus the essential element in marriage. This was an adoption of that form of "free marriage" of the time of the empire which the class from which Christians came had practiced. That is to say, that the church took up the form of marriage which had been in the class mores of the class from which the church was recruited. This is really all that can be said about the origin of "Christian marriage." It is a perpetuation of the mores of the lowest free classes in the Roman world. Justinian reintroduced the dos and donatio for persons of the higher classes who were, in his time, included in the church. People of the lower class were to utter the consensus in a church before three or four clergymen, and a certificate was to be prepared.[1338] The lowest classes might still neglect all ceremony. This law aimed to secure publicity, a distinct expression of consent, and a record. There is no reference to any religious blessing or other function of the clergy. They appear as civil functionaries charged to witness and record an act of the parties.[1339] In another novel[1340] all this was done away with except the written contract about the dower, if there was one.[1341]

424. Transition from Roman to Christian marriage. The ideal of marriage which has just been described came into the Christian church out of the Roman world. Roman wedding sacrifices were intended to obtain signs of the approval of the gods on the wedding. They were domestic sacrifices only, since the sacred things of the spouses were at home only. The auspices ceased to be taken at marriages from the time of Cicero. It became customary to declare that nothing unfavorable to the marriage had occurred. There are many relief representations of late Roman marriages on which Juno appears as pronuba, a figure of her standing behind the spouses as protectress or patroness. Rossbach[1342] thus interprets such a relief: "The bethrothed, with the assistance of Juno, goddess of marriage, solemnly make the covenant of their love, to which Venus and the Graces are favorable, by prayer and sacrifices before the gods. By the aid of Juno love becomes a legitimate marriage." Rossbach mentions exactly similar reliefs in which Christ is the pronuba, and the transition to Christianity is distinctly presented. In a similar manner ideas and customs about marriage were brought under Christian symbol or ceremony, and handed down to us as "Christian marriage." The origin of them is in the mores of the classes who accepted Christianity, which were subjected to a grand syncretism in the first centuries of Christianity.

425. Ancient German marriage. No documents were necessary until the time of Justinian (550 A.D.), an oral agreement being sufficient, if probable. There were essential parts of the Roman wedding usages which were independent of paganism and which were necessarily performed at home. In the Eastern empire concubinage was abolished at the end of the ninth century. The heathen Germans had two kinds of marriage, one with, the other without, jural consequences. Both were marriage. The difference was that one consisted in betrothal, endowment, and a solemn wedding ceremony; the other lacked these details. Here, again, it is worth while to notice that property and rank would very largely control the question which of these two forms was more suitable. Consequences as to property followed from the former form which were wanting in the latter. If the pair had no property, the latter form was sufficient. In mediaeval Christian Germany the canon law obliterated the distinction, but then morganatic marriage was devised, by which a man of higher rank could marry a woman of lower rank without creating rights of property or rank in her or her children. In such a form of marriage the Roman law saw lack of affectus maritalis and of deligere honore pleno; hence the union was concubinage, not marriage. The German law held that the intention to marry made marriage, and that property rights were another matter.[1343] The ancient mores lasted on and kept control of marriage, and the church, in its efforts to establish its own theories of marriage, property, legitimacy, rank, etc., was at war with the old mores.

426. Early church usage. In the Decretals of Gratian[1344] are collected the earliest authorities about marriage in the Christian church, some of which are regarded now as ungenuine. "Nevertheless it is impossible to say that, in the early times of Christianity, there was any church wedding. Weddings were accomplished before witnesses independently of the church, or perhaps in the presence of a priest by the professiones." Then followed the pompous home bringing of the bride. Afterwards the spouses took part in the usual church service and the sacrament and gave oblations.[1345] Later special prayers for the newly wedded were introduced into the service. Later still special masses for the newly wedded were introduced. Such existed probably before the ninth century.[1346] The declaration of consensus still took place elsewhere than in church, and not until the rituals of the eleventh and twelfth centuries does the priest ask for it, or is it asked for in his presence. In the Greek ritual there has never yet been any declaration of consensus.[1347]

427. The usage as to religious ceremony. The more pious people were, the more anxious they were to put all their doings under church sanction, and they sought the advice of honored ecclesiastics as to marriage. Such is the sense of Ignatius to Polycarp, chapter 5. Tertullian was a rigorist and extremist, whose utterances do not represent fact. In our own law and usage a common-law marriage is valid, but people of dignified and serious conduct, still more people of religious feeling, do not seek the minimum which the law will enforce. They seek to comply with the usages in their full extent, and to satisfy the whole law of the religious body to which they belong. In like manner, there was a great latitude from the fourth to the sixteenth century, while the Christian church was trying to mold the barbarian mores to its own standards in the usages which were current, but an ecclesiastical function was not necessary to a valid marriage until the Council of Trent. In fact a wedding in church never was an unconditional requirement for a valid marriage among German Roman Catholics until the end of the eighteenth century.[1348] Somewhat parallel cases of the addition of religious ceremonies to solemn public acts which had been developed in the mores are the emancipation of a slave, and the making of a knight.[1349]

428. Mode of expressing consensus. If the consent of the parties is regarded as essential, then the public proceedings must bring out an expression of will. The ancient German usage was that the friends formed a circle in which the persons to be married took their place, and the woman's guardian, later her most distinguished friend, asked them (the woman first) whether it was their will to become man and wife,—these terms being defined in the mores. This was a convenient and rational proceeding, of primitive simplicity and adaptation to the purpose. In Scandinavia and Iceland the ancient laws contained exact prescriptions as to the person who might officiate as the conductor of this ceremony. Relatives of the bride, first on her father's side, then on her mother's, were named in a series according to rank.[1350] Such a prolocutor is taken for understood in the Constitutio de Nuptiis (England).[1351] To him the man promises to take the woman to wife "by the law of God and the customs of the world, and that he will keep her as a man ought to keep his wife." Evidently these statements convey no idea of wedlock unless the mores of the time and place are known. They alone could show how a man "ought to keep his wife." The man also promises to show due provision of means of support, and his friends become his sureties. Through the Middle Ages great weight was given to the provision for the woman throughout her life, especially in case of widowhood. In fact, a "wife" differed from a mistress by virtue of this provision for her life. In the Constitutio de Nuptiis it is added, "Let a priest be present at the nuptials, who is to unite them of right, with the blessing of God, in full plenitude of felicity."

429. Marriage at the church door. In a French ritual of 700 A.D. the priest goes to the church door and asks the young pair (who appear to be walking and wooing in the street) whether they want to be duly married. The proceedings all concern the marriage gifts, after which there is a benediction at the church door, and then the pair go into the church to the mass. A hundred years later the priest asked for the consensus, and statement of the gift from the groom to the bride, and for a gift for the poor. Then the woman was given by her father or friends.[1352]

430. Marriage in Germany in the early Middle Ages. In the Frank, Suabian, Westphalian, and Bavarian laws "the woman was entitled to her dower when she had put her foot in the bed." The German saying was, "When the coverlet is drawn over their heads the spouses are equally rich," that is, they have all property of either in common.[1353] Hence, in German law and custom, consensus followed by concubitus made marriage. Hence also arose the custom that the witnesses accompanied the spouses to their bedchamber and saw them covered, or visited them later. Important symbolic acts were connected with this visit. The spouses ate and drank together. The guests drove them to bed with blows.[1354] The witnesses were not to witness a promise, but a fact. In the Carolingian period, except in forged capitularies, there is very little testimony to the function of priests in weddings.

The custom of the Jews has been mentioned above (sec. 417). Selected witnesses were thought necessary to testify at any time to the consummation of the marriage. In the third century B.C. this custom was modified to a ceremony.[1355] In ancient India and at Rome newly wedded spouses were attended by the guests when they retired.[1356] The Germans had this custom from the earliest times and they kept it up through the Middle Ages. The jural consequences of marriage began from the moment that both were covered by the coverlet. This was what the witnesses were to testify to. Evidently the higher classes had the most reason to establish the jural consequences. Therefore kings kept up this custom longest, although it degenerated more and more into a mere ceremony.[1357] The German Emperor Frederick III met his bride, a Portuguese princess, at Naples. The pair lay down on the bed and were covered by the coverlet for a moment, in the presence of the court. They were fully dressed and rose again. The Portuguese ladies were shocked at the custom.[1358] The custom can be traced, in Brandenburg, as late as the beginning of the eighteenth century.[1359] English customs of the eighteenth century to seize articles of the bride's dress were more objectionable.

The church ceremony, however, won its way in popular usage. It consisted in blessing the ring and the gifts, and the interest of ecclesiastics began to be centered on the question whether the persons to be married were within the forbidden degrees of relationship.[1360] In the Petri Exceptiones (between 1050 and 1075)[1361] it is expressly stated, amongst other statements of what does not make a marriage, that it is not the benediction of the priest, but the mental purpose of the man and woman. Other things only establish testimony and record. Weinhold[1362] cites a poem of the eleventh century in which a wedding is described. After the betrothal is agreed upon by the relatives, and property agreements have been made, the groom gives to the bride a ring on a sword hilt, saying, "As the ring firmly incloses thy finger, so do I promise thee firm and constant fidelity. Thou shalt maintain the same to me, or thy life shall be the penalty." She takes the ring, they kiss, and the bystanders sing a wedding song. In a Suabian document of the twelfth century, the bridegroom is the chief actor.[1363] He lays down successively seven gloves, the glove being the symbol of the man himself in his individual responsibility and authority. Each glove is a pledge of what he promises according to the prescriptions of the Suabian mores, for which his formula is, "As by right a free Suabian man should do to a free Suabian woman." He enumerates the chief kinds of Suabian property and promises to write out his pledges in a libellus dotis, if the bride will provide the scribe. Then the woman's guardian, having received these pledges, delivers her, with a sword (on the hilt of which is a finger ring), a penny, a mantle, and a hat on the sword, and says: "Herewith I transfer my ward to your faithfulness, and to your grace, and I pray you, by the faith with which I yield her to you, that you be her true guardian, and her gracious guardian, and that you do not become her direful guardian." "Then," it is added, "let him take her and have her as his." This must be a very ancient form, of German origin. There is no consensus expressed in it and the symbolism is elaborate. The libellus dotis is evidently an innovation. It has a Latin name and is a contingent, not a substantive part of the man's acts. The old German form shows that the Latin church usage had not yet overturned the German tradition.

431. The canon law. In the Decretals of Gratian[1364] the doctrine of nuptials is that they begin with the public ceremony and are completed by concubitus. Agreement to cohabit, followed by cohabitation, constituted marriage by the canon law. This is the common sense of the case. It was the doctrine of the canon law and is the widest modern civilized view.

432. Mediaeval marriage. In the thirteenth century began the astonishing movement by which the church remodeled all the ideas and institutions of the age, and integrated all social interests into a system of which it made itself the center and controlling authority. The controlling tendency in the mores of the age was religiosity,—a desire to construe all social relations from the church standpoint and to set all interests in a religious light. Marriage fell under this influence. The priests displaced the earlier prolocutors, and strove to make marriage an ecclesiastical function and their own share in it essential, although they did not make the validity of marriage depend on their share in it.[1365] In different places and amongst different classes the custom of church marriage was introduced at earlier or later times, and the doctrine of priestly function in connection with marriage became established with greater or less precision. Friedberg[1366] considers the ordinance of the Synod of Westminster[1367] (1175) the first ordinance which distinctly prescribed church marriage in England, but from that to the establishment of a custom was a long way. Pollock and Maitland[1368] think that marriage, in England, belonged to the ecclesiastical forum by the middle of the twelfth century. Rituals of Salisbury and York of the thirteenth century show the early church customs, only rendered more elaborate and more precise in detail.[1369] There is also ritual provision for an ecclesiastic to bless the bed of the spouses after they are in it, in order to drive away the evil spirits. In 1240, in the constitutions of Walter de Cantelupe, marriage is called a sacrament, because it prefigures the sacrament between Christ and the church. Marriage was to precede concubitus. There was to be no divination or use of devices for luck. By synodal statutes of 1246 it was ordered that priests should teach that betrothal and consummation would constitute irrevocable marriage.[1370] If people treated church ordinances and forms with neglect they were punished by church discipline, but the marriage was not declared invalid. Hence the system was elastic and could not be abruptly changed.

433. Conflict of mores and church programme. Betrothal and wedding. In Germany the popular resistance to a change of the mores about marriage was more stubborn than elsewhere. Although ecclesiastics were present at marriages, until the thirteenth century, they sometimes took no part.[1371] In the poems, from the beginning of the twelfth century, mention is made of priestly benediction; still it remains uncertain whether this took place before or after concubitus. In the great epics of the thirteenth century the old custom of the circle of friends and the interrogatories by a distinguished relative appears. The couple spend the night together and on the following morning go to church where they are blessed.[1372] This is the proceeding in Lohengrin. In the thirteenth century the prolocutor was going out of fashion and the ecclesiastic got a chance to take his place.[1373] Evidently there was here an ambiguity between the betrothal and the wedding. It took two or three centuries to eliminate it. When the man said, "I will take," did he mean, "It is my will to take now," or did he mean, "I will take at a future time"? Sohm[1374] says that betrothal was the real conclusion of a marriage, and that the wedding was only the confirmation (Vollzug) of a marriage already consummated. Friedberg[1375] says that the wedding was the conclusion of a projected marriage and not the consummation of one already concluded. When there was a solemn public betrothal and then a wedding after an interval of time, the latter was plainly a repetition which had no significance. What happened finally was that the betrothal fell into insignificance, or was united with the wedding as in the modern Anglican service, and concubitus was allowed only after the wedding. The wedding then had importance, and was not merely a blessing on a completed fact. It was then a custom in all classes to try life together before marriage (Probenaechte). In the fifteenth century, if kings were married by proxy, the proxy slept with the bride, with a sword between, before the church ceremony.[1376] The custom to celebrate marriages without a priest lasted, amongst the peasants of Germany, until the sixteenth century.[1377] "It was, therefore, customary [in the thirteenth century] to have the church blessing, but generally only after consummated marriage. The blessing was not essential, but was considered appropriate and proper, especially in the higher classes. In the fourteenth century the ecclesiastical form won more and more sway over the popular sentiment."[1378]

434. Church marriage. Concubines. It is necessary to notice that there is never any question of the status of men. They satisfy their interests as well as they can and the result is the stage of civilization. The status of women is their position with respect to men in a society in which men hold the deciding voice. Men bear power and responsibility. Women are the coadjutors, with more or less esteem, honor, cooperative function, and joint authority. There has never until modern times been a law of the state which forbade a man to take a second wife with the first. A man could not commit adultery because he was not bound, by law or mores, to his wife as she was to him. A man and woman marry themselves and lead conjugal life in a world of their own. Church and state would be equally powerless to marry them. The church may "bless" their union. The state may define and enforce the civil and property rights of themselves or their children. It cannot enforce conjugal rights. Therefore it cannot divorce two spouses. They divorce themselves. The state can say what civil and property right shall be affected by the divorce, and how the force of the state shall enforce the consequences. The marriage relation is domestic and private, where the wills of the individuals prevail and where the police cannot act. The Christian church, about the thirteenth century, introduced a marriage ritual in which the spouses promised exclusive fidelity, the man as much as the woman. As fast and as far as church marriage was introduced, the promise set the idea of marriage. If either broke the promise, he or she was liable to church censure and penance. In England the first civil law against bigamy was I James I, chapter 11. Never until 1563 (Council of Trent) was any ecclesiastical act necessary to the validity of a marriage even in the forum of the church. Marriage was in the mores. The blessing of the church was edifying and contributory. It was not essential. Marriage was popular and belonged to the family. In the ancient nations sacrifices were made for good fortune in wedlock. In the Middle Ages Christian priests blessed marriages which had been concluded by laymen and had already been consummated. The relation of husband and wife varied, at that time, in the villages of Germany or northern France of the same nationality. Until modern times concubinage has existed as a recognized institution. It was an inferior form of marriage, in which the woman did not take the rank of her husband, and her children did not inherit his rank or property, but her status was permanent and defined. Sometimes it was exclusive. Then again slaves have been at the mercy of a master and in ancient times they were always proud to "find favor in his eyes." Thus wives, concubines, and slave women form three recognized ranks of female companions.

435. The church elevated the notion of marriage. In all the ancient civilized states marriage was an affair of property interests and rank. The public ceremony was needed in order to establish rights of property and inheritance, legitimacy, and civil rights. The Christian church of the Middle Ages had to find a ground for its own intervention. This it did by emphasizing the mystic element in marriage, and developing all the symbolism of the Bible which could be applied to this subject and all the biographical details which touched upon it,—Adam and Eve, Tobias, Joseph and Mary, the one-flesh idea, the symbolism of Christ and the church, etc. Thus a sentimental-poetical-mystical conception of marriage was superimposed on the materialistic-sensual conception of it. The church affirmed that marriage was a "sacrament." A half-dozen different explanations of "sacrament" in this connection could be quoted. It is impossible to tell what it means. The church, however, by its policy, contributed greatly to the development of the nobler conception of marriage in modern mores. The materialistic view of it has been left decently covered, and the conception of wedlock as a fusion of two lives and interests into affectionate cooperation, by the sympathy of character and tastes, has become the ideal. The church did much to bring about this change. For an age which attributed a vague and awful efficacy to a "sacrament," and was familiar, in church matters, with such parallelisms as that alleged between marriage and the union of Christ with his church, it is very probable that the church "fostered a feeling that a lifelong union of one man and one woman is, under all circumstances, the single form of intercourse between the sexes which is not illegitimate; and this conviction has acquired the force of a primal moral intuition."[1379] What has chiefly aided this effect has been the rise to wealth and civil power of the middle class of the later Middle Ages, in whose mores such views had become fixed without much direct church influence.

436. The decrees of Trent about marriage. It was not until the decrees of Trent (1563) that the church established in its law the sacerdotal theory of marriage in place of the theory of the canon law. The motive at Trent was to prevent clandestine marriages, that is, marriages which were not made by a priest or in church. These marriages were common and they were mischievous because not to be proved. They made descent and inheritance uncertain when the parties belonged to families of property and rank. In form, the decrees of Trent provided for publicity. Marriage was to be celebrated in church, by the parish priest, and before two witnesses. This action was not in pursuance of a change in the mores. It was a specific device of leading churchmen to accomplish an object. In view of the course of the mores, it may be doubted if any effect ought to be attributed to the decrees of Trent for their immediate purpose, but two effects have been produced which the churchmen probably did not foresee. First, it became the law of the church that the consent of a man and a woman, expressed in a church before the parish priest, constituted a marriage without any voluntary participation of the priest. The Huguenots in France, for more than a century, married themselves in this way, a notary being employed to make a record and certificate. Secondly, this law became the great engine of the church to hold its children to their allegiance and prevent mixed marriages. To win the consent of the parish priest to perform the ceremony the parties must conform to church requirements,—confession and communion. The seventeenth and eighteenth centuries were occupied by struggles of living men to regulate their interests in independence of these restraints.

437. Puritan marriage. The Puritan sects made marriage more secular, as the Romish Church made it more ecclesiastical. Although they liked to give a religious tone to all the acts of life, the Puritans took away from marriage all religious character. It was performed by a civil magistrate. Such was the rule in New England until the end of the seventeenth century. However, there was, in this matter, an inconsistency between the ruling ideas and the partisan position, and the latter gave way. There has been a steady movement of the mores throughout the Protestant world in the direction of giving to marriage a religious character and sanction. It has become the rule that marriages shall be performed by ministers of religion, and the custom of celebrating them in religious buildings is extending. The authority and example of the church of Rome have had nothing to do with this tendency. They are not even known. It has been purely a matter of taste, sentiment, and popular judgment as to what is right and proper; also it has been due to the ideas of women in regard to suitable pomp and glory. The mores have once more taken full control of the matter, and the religious ceremony is used to satisfy the interests, and fulfill the faiths, of the population. Such is the effect of civil marriage as established in the nineteenth century. At the present time the ministers of religion seem disposed to use their lawful position as the proper ones to celebrate marriage, that they may impose restrictions on divorce, and on marriage after divorce.

[1324] Maspero, Peuples de l'Orient, I, 736.

[1325] Bergel, Eheverhaelt. der Juden, 19.

[1326] Deut. xxii. 29.

[1327] Freisen, Gesch. des kanon. Eherechts, 848.

[1328] Freisen, Gesch. des kanon. Eherechts, 23, 47, 92-96.

[1329] Lippert, Kulturgesch., II, 520.

[1330] Wilkins, Concilia, 20.

[1331] Wisen, Qvinnan i Nordens Forntid, 7.

[1332] Freisen, Gesch. des kanon. Eherechts, 154.

[1333] Ibid., 121.

[1334] Eur. Morals, II, 298.

[1335] Cf. Freisen, 26.

[1336] Rossbach, Roem. Ehe., 9.

[1337] Ibid., 62.

[1338] Novel., LXXIV, c. 4, sec. 1 (537 A.D.).

[1339] Cf. Nov., XXII, c. 3.

[1340] CXVII, c. 4.

[1341] Friedberg, 14-16.

[1342] Roem. Hochzeits und Ehedenkmaeler, 49, 107.

[1343] Freisen, 48, 103; Grimm, D. R. A., 420.

[1344] II, c. XXX, qu. 5, c. 1.

[1345] Pullan, Hist. Book of Common Prayer, 217.

[1346] Friedberg, Recht der Eheschliessung, 8.

[1347] Ibid., 9.

[1348] Stammler, Stellung der Frauen, 27.

[1349] Jenks, Law and Politics in the Middle Ages, 251.

[1350] Lehmann, Verlobung und Hochzeit nach den nordgermanischen Rechten des frueheren M. A., 31.

[1351] Wilkins, Concilia, I, 216 (644 A.D.).

[1352] Friedberg, 61.

[1353] Freisen, 118.

[1354] Friedberg, 23.

[1355] Freisen, Kanon. Eherecht, 92, 96; Bergel, Eheverhaelt. der Juden, 19.

[1356] Rossbach, Roem. Ehe, 370.

[1357] Weinhold, D. F., I, 399.

[1358] Gesch. Fried. III, by AEneas Silvius, trans. Ilgen, II, 95.

[1359] Friedberg, Recht der Eheschliessung, 23.

[1360] Friedberg, 58.

[1361] Savigny, Gesch. des Roem. Rechts im M. A., II, Append.

[1362] Deutsche Frauen, I, 341.

[1363] Rhein. Mus., 1829, 281.

[1364] II, c. XXVII, qu. 2, and c. XXXIV.

[1365] Friedberg, 98.

[1366] Ibid., 39.

[1367] Wilkins, Concilia, I, 478.

[1368] Hist. Eng. Law, I, 109; II, 365.

[1369] Surtees Soc., Man. et Pont. Ecc. Ebor., 157, and App. 17.

[1370] Wilkins, I, 668, 690.

[1371] Friedberg, 79.

[1372] Nibelungen, 568-597.

[1373] Weinhold, D. F., I, 373.

[1374] Trauung und Verlobung, 37.

[1375] Verlobung und Trauung, 23.

[1376] Friedberg, 90.

[1377] Hagelstange, Bauernleben im M. A., 61.

[1378] Friedberg, 85; cf. Weinhold, D. F., I, 378; Grimm, D. R. A., 436.

[1379] Lecky, Eur. Morals, II, 347.



CHAPTER XI

THE SOCIAL CODES

Specification of the subject.—Meaning of "immoral."—Natural functions.—The current code and character.—Definitions of chastity, decency, propriety, etc.—Chastity.—Pagan life policy.—Modesty and shame.—The line of decency in dress.— Present conventional limits of decency.—Decency and vanity.— Modesty is the opposite of impudence.—Shame.—The first attachments to the body.—The fear of sorcery.—What functions should be concealed.—Restraint of expression within limits.— Violation of rule.—The suspensorium.—The girdle and what it conceals.—Modesty and decency not primitive.—What parts of the body are tabooed?—Notion of decency lacking.—Dress and decency.—Ornament and simplest dress.—The evolution of dress.—Men dressed; women not.—Dress for other purposes than decency; excessive modesty.—Contrasted standards of decency.— Standards of decency as to natural functions, etc.—Bathing; customs of nudity.—Bathing in rivers, springs, and public bath houses.—Nudity.—Alleged motives of concealment taboo.— Obscenity.—Obscene representations for magic.—Infibulation.— Was the phallus offensive?—Phallus as amulet.—Symbols in Asia.—The notion of obscenity is modern.—Propriety.— Seclusion of women.—Customs of propriety.—Moslem rules of propriety.—Hatless women.—Rules of propriety.—Hindoo ritual of the toilet, etc.—Greek rules of propriety.—Erasmus's rules.—Eating.—Kissing.—Politeness, etiquette, manners.— Good manners.—Etiquette of salutation, etc.—Literature of manners and etiquette.—Honor, seemliness, common sense, conscience.—Seemliness.—Cases of unseemliness.—Greek tragedies and notions of seemliness.—Greek conduct.— Seemliness in the Middle Ages.—Unseemly debate.—Unseemliness of lynching, torture, etc.—Good taste.—Whence good taste is derived.—The great variety in the codes.—Morals and deportment.—The relation of the social codes to morals and religion.—Rudeck's conclusions.

438. Specification of the subject. The ethnographers write of a tribe that the "morality" in it, especially of the women, is low or high, etc. This is the technical use of morality,—as a thing pertaining to the sex relation only or especially, and the ethnographers make their propositions by applying our standards of sex behavior, and our form of the sex taboo, to judge the folkways of all people. All that they can properly say is that they find a great range and variety of usages, ideas, standards, and ideals, which differ greatly from ours. Some of them are far stricter than ours. Those we do not consider nobler than ours. We do not feel that we ought to adopt any ways because they are more strict than our traditional ones. We consider many to be excessive, silly, and harmful. A Roman senator was censured for impropriety because he kissed his wife in the presence of his daughter.[1380]

439. Meaning of "immoral." When, therefore, the ethnographers apply condemnatory or depreciatory adjectives to the people whom they study, they beg the most important question which we want to investigate; that is, What are standards, codes, and ideas of chastity, decency, propriety, modesty, etc., and whence do they arise? The ethnographical facts contain the answer to this question, but in order to reach it we want a colorless report of the facts. We shall find proof that "immoral" never means anything but contrary to the mores of the time and place. Therefore the mores and the morality may move together, and there is no permanent or universal standard by which right and truth in regard to these matters can be established and different folkways compared and criticised. Only experience produces judgments of the expediency of some usages. For instance, ancient peoples thought pederasty was harmless and trivial. It has been well proved to be corrupting both to individual and social vigor, and harmful to interests, both individual and collective. Cannibalism, polygamy, incest, harlotry, and other primitive customs have been discarded by a very wide and, in the case of some of them, unanimous judgment that they are harmful. On the other hand, in the Avesta spermatorrhea is a crime punished by stripes.[1381] The most civilized peoples also maintain, by virtue of their superior position in the arts of life, that they have attained to higher and better judgments and that they may judge the customs of others from their own standpoint. For three or four centuries they have called their own customs "Christian," and have thus claimed for them a religious authority and sanction which they do not possess by any connection with the principles of Christianity. Now, however, the adjective seems to be losing its force. The Japanese regard nudity with indifference, but they use dress to conceal the contour of the human form while we use it to enhance, in many ways, the attraction. "Christian" mores have been enforced by the best breechloaders and ironclads, but the Japanese now seem ready to bring superiority in those matters to support their mores. It is now a known and recognized fact that our missionaries have unintentionally and unwittingly done great harm to nature people by inducing them to wear clothes as one of the first details of civilized influence. In the usages of nature peoples there is no correlation at all between dress and sentiments of chastity, modesty, decency, and propriety.[1382]

440. Natural functions. The fact that human beings have natural functions the exercise of which is unavoidable but becomes harmful to other human beings, in a rapidly advancing ratio, as greater and greater numbers are collected within close neighborhood to each other, makes it necessary that natural functions shall be regulated by rules and conventions. The passionate nature of the sex appetite, by virtue of which it tends to excess and vice, forces men to connect it with taboos and regulations which also are conventional and institutional. The taboos of chastity, decency, propriety, and modesty, and those on all sex relations are therefore adjustments to facts of human nature and conditions of human life. It is never correct to regard any one of the taboos as an arbitrary invention or burden laid on society by tradition without necessity. Very many of them are due originally to vanity, superstition, or primitive magic, wholly or in part, but they have been sifted for centuries by experience, and those which we have received and accepted are such as experience has proved to be expedient.

441. The current code and character. It follows that, in history and ethnography, the mores and conduct in any group are independent of those of any other group. Those of any group need to be consistent with each other, for if they are not so the conduct will not be easily consistent with the code, and it is when the conduct is not consistent with the code which is current and professed that there is corruption, discord, and decay of character. So long as the customs are simple, naive, and unconscious, they do not produce evil in character, no matter what they are. If reflection is awakened and the mores cannot satisfy it, then doubt arises; individual character will then be corrupted and the society will degenerate.

442. Definitions of chastity, decency, propriety, etc. Chastity, modesty, and decency are entirely independent of each other. The ethnographic proof of this is complete. Chastity means conformity to the taboo on the sex relation, whatever its terms and limits may be in the group at the time. Therefore, where polyandry is in the mores, women who comply with it are not unchaste. Where there are no laws for the conduct of unmarried women they are not unchaste. It is evidently an incorrect use of language to describe the unmarried women of a tribe as unchaste, unless there is a rule for them. It can only mean that they violate the rule of some other society, and that can be said always about those in any group. There are cases in which women wear nothing but are faithful to a strict sex taboo, and there are cases where they go completely covered but have no sex taboo. Decency has to do with the covering of the body and with the concealment of bodily functions. Modesty is reserve of behavior and sentiment. It is correlative to chastity and decency, but covers a far wider field. It arrests acts, speech, gestures, etc., and repels suggestions at the limit of propriety wherever that may be set by the mores. Propriety is the sum of all the prescriptions in the mores as to right and proper behavior, or as to the limit of degree which prevents excess or vice. It is not dictated in laws. It is a floating notion. From time to time, however, dictates of propriety are enacted into police regulations. Propriety is guaranteed by shame, which is the sense of pain due to incurring disapproval because one has violated the usage which the mores command every one to observe. It is narrated of Italian nuns who had been veiled even from each other for half a lifetime that when turned out of their convents they suffered from exposing their faces the same shame that other women would suffer from far greater exposure. It could not be otherwise. Mohammedan women, if surprised when bathing, cover first the face. They are distinguished from non-Mohammedan women by the veil; therefore this covering is to them most important. Chinese women, whose feet have been compressed, consider it indecent to expose them. Within a generation the public latrines in the cities of continental Europe have been made far more secluded and private than they formerly were. Within ten years there has been a great change of standard as to the propriety of spitting. Beyond the domain of propriety lie the domains of politeness, courtesy, good manners, seemliness, breeding, and good form. The definition depends on where the line is drawn. That point is always conventional. It is a matter of tradition and social contact to learn where it lies. It never can be formulated. Habit must form a feeling or taste by which new cases can be decided. There are persons and classes who possess such social prestige that they can alter the line of definition a small distance and get the change taken up into the mores, but it is the mores which always contain and carry on the definitions and standards. Therefore it is to the mores that we must look to find the determining causes or motives, the field of origin, the corrective or corrupting influences, and the educative operations, which account for all the immense and contradictory variety of the folkways, under chastity, decency, modesty, propriety, etc.

443. Chastity. An Australian husband assumes that his wife has been unfaithful to him if she has had opportunity. In most tribes women are not allowed to converse or have any relations whatever with any men but their husbands, even with their own grown-up brothers.[1383] Veth[1384] thinks that the observance of the sex taboo by Dyak wives has been exaggerated, but that, at least on the west coast, it is better than that of the Malay women. The young unmarried women among the sea Dyaks take great license, and the custom of lending daughters exists, but such customs are unknown on the west coast. On the Andaman Islands there is no sex taboo for the unmarried and they use license. The girls are modest, and when married conform to the taboo of marriage. Their husbands "do not fall far short of them." The women will not renew their leaf aprons in the presence of each other.[1385] The Yakuts use leather guarantees of their wives and daughters, similar to the mediaeval device,[1386] which always implies that the wife will make use of any opportunity. The Yakut women wore garments even in bed.[1387] The Eskimo of eastern Greenland do not disapprove of a husbandless mother but of a childless wife.[1388] Bushmen women observe a stricter taboo than their Kaffir neighbors. They refuse illicit relations with the latter, although the Kaffirs are a superior race.[1389] The Zulu women observe a strict taboo with noteworthy fidelity.[1390] Madame Pommerol[1391] represents the Arab women of the nomadic or semi-nomadic tribes of southern Algiers as destitute of moral training. They have no code of morals or religion. [What she means is that they have no character by education.] They shun men, but handle the veil in a coquettish manner according to artificial and excessive usages. They act only between impulses of desire and fear of fathers or husbands. Fidelity has no sense, since they do not feel the loyalty either of duty or affection. The Mayas of the lowest classes sent out their daughters to earn their own marriage portions.[1392] On the Palau Islands mothers train their daughters to make gain of themselves in the local shell money and bring the same to their parents. The girls become armengols; that is, they live in the clubhouses which are the residences of the young men, where they do domestic work and win influence. An insult to such a woman is an insult to the club. The origin of the custom was in war; the women were captives. Some are now given in tribute. "The custom is not a pure expression of sensuality." As there is no family life this is the woman's chance to know men and influence them. It is rated as education.[1393] Semper[1394] quotes native justification of the custom. A man's young last-wedded wife complained to his older wife that he made her serve the armengols. The older wife told her to remember that she had herself enjoyed this life and had been served by the married women. All girls liked to earn the money by which, when they came home, they got husbands. It was ancient custom and must be obeyed. If the married women refused to do their duty, the men would not be served, for a married woman might never show the world that she was on intimate terms with her husband. That would be mugul, and when once that word lost its force the whole island would perish. A woman argued to Semper that the custom was a good one because it gave the women a chance to see the other islands, and because they learned to serve and obey the men. It was, she said, their sacred duty. Any girl who did not go abroad as an armengol would get the reputation of being stupid and uncultivated, and would get no husband.[1395] Cases in which husbands are indifferent to the fidelity of wives to the marriage taboo occur, but they are rare.[1396] In some Arabic tribes of Sahara, even those in which the struggle for existence is not severe, fathers expect daughters to ransom themselves from the expense of their rearing by prostitution. The notion of sex honor has not yet overcome the sense of pecuniary loss or gain. The more a woman gains, the more she is sought in marriage afterwards. Tuareg married women enter into relations with men not their husbands like those of women with their lovers in the woman cult of the twelfth and thirteenth centuries in central Europe. These women have decent and becoming manners, with much care for etiquette.[1397] A thirteenth-century writer says of the Mongol women that they are "chaste, and nothing is heard amongst them of lewdness, but some of the expressions they use in joking are very shameful and coarse." The same is true now.[1398] An Arab author is cited as stating that at Mirbat women went outside the city at night to sport with strange men. Their own husbands and male relatives passed them by to seek other women.[1399] Amongst the Gowane people in Kordofan (who seem now to be Moslems)[1400] a girl cannot marry without her brother's consent. To get this she must give to her brother an infant. She finds the father where she can.[1401]