Chapter I: Preface

It is an encouraging sign of advancing culture that history is gaining a deeper and broader meaning. We are really becoming interested, not merely in our political, but also in our entire biological, psychological, and social evolution. Although such phrase-making is nearly always misleading, there would perhaps be more truth in saying that "history is past sociology and sociology present history" than in Freeman's well-known epigram. In particular, the human family, with all that the word connotes, is commanding greater attention. Yet there is urgent need that its rise and social function should have far more earnest study than they now receive. The family and its cognate institutions ought to enter more fully into popular thought; and they should have much larger relative space in the educational program. From the home circle to the university seminar they are worthy to become a vital part of systematic social training. In the hope of aiding somewhat in winning for them due scientific recognition, this book is written. It seems not impossible that a sustained history of the matrimonial institutions of the English race in its "three homes" may prove a positive advantage, especially in gathering the materials and planning the work for more detailed investigations. Moreover, a thorough understanding of the social evolution of any people must rest upon the broader experience of mankind. Accordingly, in Part I the attempt is made to present a comprehensive and systematic analysis of the literature and the theories of primitive matrimonial institutions.

Preliminary reference to another portion of the book may perhaps be permitted. The anxious attention of the legal and social reformer is being especially directed to the character of our state legislation regarding marriage and divorce. To him, therefore, it is hoped, the last three chapters may prove helpful. Summaries of the statutes as they stood at particular dates have indeed appeared. The digest contained in the government _Report_ is of great value for the time of its compilation; but no attempt seems ever to have been made to provide a systematic historical record. In these chapters--the result of several years' labor--the laws of all the states and territories enacted since the Revolution have been analyzed with some regard for details. No pains have been spared to gain accuracy; yet it would be rash to expect that the discussion is entirely free from error or oversight.

During the years devoted to this investigation I have profited by the generous assistance of many friends. They have aided me through references, information, copying, verifying, and in other ways. To all these I desire to convey my grateful thanks. In a few instances it is fitting that individual acknowledgment should be made. To Professor William Henry Hudson, of London, I am indebted for the examination of several rare books in the library of the British Museum. Bibliographical help has also been given by Professor Charles Richmond Henderson, of the University of Chicago. Special researches on my behalf have been conducted by Mr. Royall C. Victor and by Miss Lucile Eaves, head resident of the South Park Settlement, San Francisco. I have had the advantage of the expert aid of Mr. David M. Matteson in examining the manuscript records of the colonial and provincial courts of Suffolk and Middlesex counties, Massachusetts. To Professor Nathan Abbott, of Stanford University, Mr. James H. Deering, of the San Francisco Law Library, and Rev. Samuel W. Dike, secretary of the National League for the Protection of the Family, I am under obligations for information and suggestions. Special thanks are due to Professor Charles Gross, of Harvard, for encouragement in the work and various kind offices; as also to Mr. W. C. Lane and Mr. T. J. Kiernan, of the Harvard Library, for granting the most liberal use of the materials in their charge.

Finally I can but poorly express the gratitude which I owe to my wife, whose patient hand, faithful criticism, and wise counsel have never failed.

CHICAGO, March 19, 1904.

ANALYTICAL TABLE OF CONTENTS

VOLUME ONE

PART I

ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE
MATRIMONIAL INSTITUTIONS

PAGES

CHAPTER I. THE PATRIARCHAL THEORY 3-32

I. Statement of the Theory 9-13

II. Criticism of the Theory by Spencer and McLennan 14-17

III. The Theory in the Light of Recent Research 18-32

CHAPTER II. THEORY OF THE HORDE AND MOTHER-RIGHT 33-89

I. Bachofen and His Disciples 39-65

II. Morgan's Constructive Theory 65-76

III. McLennan's Constructive Theory 77-89

CHAPTER III. THEORY OF THE ORIGINAL PAIRING OR
MONOGAMOUS FAMILY 89-151

I. The Problem of Promiscuity 90-110

II. The Problem of Mother-Right 110-117

III. The Problem of Exogamy 117-132

IV. The Problem of the Successive Forms of the Family 132-151

CHAPTER IV. RISE OF THE MARRIAGE CONTRACT 152-223

I. Wife-Capture and the Symbol of Rape 156-179

II. Wife-Purchase and Its Survival in the Marriage
Ceremony 179-201

III. The Antiquity of Self-Betrothal or Free Marriage 201-210

IV. Primitive Free Marriage Surviving with Purchase,
and the Decay of the Purchase-Contract 210-223

CHAPTER V. EARLY HISTORY OF DIVORCE 224-250

I. The Right of Divorce 224-240

II. The Form of Divorce 240-241

III. The Legal Effects of Divorce 241-247

IV. Frequency of Divorce 247-250

PART II

MATRIMONIAL INSTITUTIONS IN ENGLAND

CHAPTER VI. OLD ENGLISH WIFE-PURCHASE YIELDS TO
FREE MARRIAGE 253-286

I. The Primitive Real Contract of Sale and Its
Modifications 258-276

II. Rise of Free Marriage: Self-_Beweddung_ and
Self-_Gifta_ 276-286

CHAPTER VII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL 287-320

I. The Primitive Christian Benediction, the Bride-Mass,
and the Celebration _ad Ostium Ecclesiae_ 291-308

II. The Priest Supersedes the Chosen Guardian, and
_Sponsalia per Verba de Praesenti_ Are Valid 308-320

CHAPTER VIII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL
LAW 321-363

I. The Early Christian Doctrine and the Rise of the
Canonical Theory 324-340

II. Clandestine Marriages the Fruit of the Canonical
Theory 340-349

III. The Evils of the Spiritual Jurisdiction 351-359

IV. Publicity Sought through Banns and Registration 359-363

CHAPTER IX. THE PROTESTANT CONCEPTION OF MARRIAGE 364-403

I. As to the Form of Marriage 370-386

II. As to the Nature of Marriage 386-399

III. Child-Marriages in the Age of Elizabeth 399-403

CHAPTER X. RISE OF CIVIL MARRIAGE 404-473

I. Cromwell's Civil Marriage Act, 1653 408-435

II. Fleet Marriages and the Hardwicke Act, 1753 435-460

III. The Present English Law 460-473

VOLUME TWO

PART II--_Continued_