Chapter XX: Part I: , 279-87; cf. RATZEL, Hist. of Mankind, II, (1)

125, who says the marriage ceremonies often mean ability to
support a family. The Point Barrow Eskimo takes his wife for
"reasons of interest." He wants her for household duties; and
conversely she desires a good hunter. The mother usually chooses
for her son the prospective bride, who is expected to serve a
probation as "kivgak" (servant) in the future mother-in-law's
kitchen; but sometimes the man goes to the woman's house to
become a member: MURDOCH, _IX. Rep. of Bureau of Eth._,
401.

[588] BANCROFT, _Native Races_, I, 134.

[589] So in New Guinea: KOHLER, in _ZVR._, VII, 371.
In some cases the "man goes over to the woman's family or
tribe to live there forever; but Dr. Starcke suggests that
this custom has a different origin from the other, being an
expression of the strong clan sentiment, and not a question
of gain."--WESTERMARCK, _Human Marriage_, 391;
STARCKE, _Primitive Family_, 39. For McLennan's view of
so-called "Beena" marriage, see above, p. 16.

According to Spencer, the "obtaining of wives by services rendered, instead of by property paid," is a "cause of improvement in the treatment of women," and constitutes therefore a "higher form of marriage," developing "along with the industrial type" of society. "Obviously, a wife long labored for is likely to be more valued than one stolen or bought;" and the long association of the lovers during the time of service is likely to foster more refined sentiments than the "merely instinctive;" to imitate "something approaching to the courtship and engagement of civilized peoples."[590] But, on the other hand, without denying that these results may follow, Westermarck forcibly objects that "industrial work promotes accumulation of property, and consequently makes it easier for the man to acquire his wife by real purchase." Serving for wives is prevalent among such rude races as the Bushmans and Fuegians. Hence it seems "almost probable that marriage by services is a more archaic form than marriage by purchase; but generally they occur simultaneously."[591]

[590] SPENCER, _Principles of Sociology_, I, 754,
755. On the modification of the servitude of the wife through
the service-contract see LETOURNEAU, _L'évolution du
mariage_, 137; BANCROFT, _Native Races_, I, 134 (Kenai).

[591] WESTERMARCK, _op. cit._, 391, 392.

By far the most common way of purchasing a wife is by giving property in exchange.[592] Usually the amount of the price is arranged, like any other bargain, by agreement between the interested parties; but sometimes it is established by custom.[593] Always where the contract is merely a commercial transaction the price is in theory an equivalent for the economic loss sustained by the family or _gens_ of the bride.[594] But the amount varies in every possible way. Often it depends upon the rank or beauty of the woman; or it may be determined by her strength and capacity for bearing children. It varies also with the economic condition of the times, the wife-market depending largely upon the law of supply and demand. In hard times, or where there is an excess of women, wives are cheap; when times are good or women scarce, the price rises in proportion. Among peoples somewhat advanced in culture sentiment must, of course, be taken into account. Where it is regarded as a disgrace to accept a small compensation for a daughter, high prices may lead to celibacy. Such, at the beginning of the past century, was the case in Servia, where the bridegroom, in addition to the purchase price, was expected to bestow liberal presents, not only upon the bride and her mother, but also upon all her near relatives. The presents were so expensive that many a "poor fellow was unable to marry at all;" and so Black George in 1849 had a sumptuary law enacted restricting the price of a girl to one ducat, and this must be paid before the wedding.[595] But the bride-price "varies most according to the circumstances of the parties, and according to the value set on female labour."[596]

[592] On the bride-price in various countries see POST,
_Familienrecht_, 181-201; WESTERMARCK, _op. cit._,
392-94; KRAUSS, _Sitte und Brauch der Südslaven_,
273 ff.; KOHLER, "Studien," _ZVR._, V, 338 ff.;
WAKE, _Marriage and Kinship_, 191, 199 ff., 239 ff.,
215, 218, 235; BUCH, _Die Wotjäken_, 49 ff.

[593] POST, _op. cit._, 181, 183.

[594] _Ibid._, 181.

[595] KRAUSS, _Sitte und Brauch der Südslaven_, 275 ff.
But see especially TURNER, _Slavisches Familienrecht_,
22, 24, who declares that the law of Black George was purely
sumptuary, not dealing at all with the price of the bride, but
with mere presents from the man's friends. The mistake, he
says, originates in a wrong translation by Talvy, _Serbische
Volkslieder_, II, Einleit., 2. Turner in general denies the
former existence of wife-purchase among the Slavs, rejecting
SCHLÖZER'S translation of _Nestor_, I, chap. 12, 124
ff., which passage is an important source usually cited in
favor of former purchase. KOVALEVSKY, _Mod. Customs
and Anc. Laws of Russia_, 26 ff., however, follows the usual
interpretation of Nestor and the law of Black George, giving
examples of alleged wife-purchase and its survivals. _Cf._
POST, _op. cit._, 182, 183; and WESTERMARCK'S
chapter on "Marriage and Celibacy," especially, 145.

[596] WESTERMARCK, _op. cit._, 392; POST, _op.
cit._, 180 ff., 188.

Custom differs as to the time of payment. Sometimes the full price must be given before the nuptials; often the bride is received on credit, and the price subsequently paid in instalments. In case of credit the wife with the children usually remains with her father, and the husband does not gain absolute ownership or control until the debt is paid in full.[597]

[597] _Ibid._, 193-99; KOHLER, "Studien," _ZVR._,
V, 338, 350, 351; WESTERMARCK, _op. cit._, 394;
KOHLER, in _ZVR._, VII, 371.

Among the aborigines of America, North and South, actual wife-purchase, both by service and by property rendered, is exceedingly common; though in some tribes, as in other parts of the world, the transaction takes the form of a simple exchange of gifts or of a bestowal of presents upon the bride's parents. The price is usually paid in horses, but many other forms of property are employed. Among the Kwakiutl, says Boaz, marriage "must be considered a purchase, which is conducted on the same principles as the purchase of a copper. But the object bought is not only the woman, but also the right of membership in her clan for the future children of the couple." For "many privileges of the clan descend only through marriage upon the son-in-law of the possessor, who, however, does not use them himself, but acquires them for the use of his successor. These privileges are, of course, not given as a present to the son-in-law, but he becomes entitled to them by paying a certain amount of property for his wife. The wife is given to him as a first instalment of the return payment. The crest of the clan, its privileges, and a considerable amount of other property besides, are given later on, when the couple have children, and the rate of interest is the higher the greater the number of children. For one child 200 per cent. of interest is paid; for two or more children 300 per cent. After this payment the marriage is annulled, because the wife's father has redeemed his daughter. If she continues to stay with her husband, she does so of her own free will.... In order to avoid this state of affairs, the husband often makes a new payment to his father-in-law" so that he "may have a claim to his wife."[598]

[598] BOAZ, "Kwakiutl Indians," _Rep. Smith. Inst._,
1895, _Nat. Mus._, 358, 359.

According to Dakota usage, either "bundles" of presents are exchanged by the interested families, or else the young man who wooes the maiden ties "a horse at her parents' door." On returning, if he finds the horse still there, he adds "another, keeping this up until" his "limit is reached." If the horses are taken away, he then enters "the lodge and takes his bride home." In case too high a price is demanded the lover tries elsewhere with his horses, unless, indeed, he entices the girl to elope with him; for "this is also recognized as a marriage."[599] In "choosing a helpmate or helpmates for his bed and board, the inland native" of the Columbian region "makes capacity for work the standard of female excellence, and having made an election buys a wife from her parents by the payment of an amount of property, generally horses, which among the southern nations must be equaled by the girl's parents.... To give away a wife without a price is in the highest degree disgraceful to her family."[600] Among the Indians of northern California likewise "marriage is sometimes essentially a matter of business. The young brave must not hope to win his bride by feats of arms or softer wooing, but must buy her of her father, like any other chattel, and pay the price at once, or resign in favor of a richer man. The inclinations of the girl are in nowise consulted; no matter where her affections are placed, she goes to the highest bidder." The social position of the bride depends upon the price she brings; and, as a natural result of the system, the "rich old men almost absorb the female youth and beauty of the tribe, while the younger and poorer men must content themselves with old and ugly wives. Hence their eagerness for that wealth which will enable them to throw away their old wives and buy new ones."[601] Among the California Karok, according to Powers, "a wife is seldom purchased for less than half a string" of dentalium shell, but "when she belongs to an aristocratic family, is pretty, and skilful in making acorn-bread and weaving baskets, she sometimes costs as high as two strings."[602] According to the same authority, among the Shastika in California a girl is bought "of her father for shell-money or horses, ten or twelve cayuse ponies being paid for a maid of great attractions;"[603] and the Navajo bridegroom of New Mexico will pay so exhorbitant a price as twelve horses only for a bride "possessing unusual qualifications, such as beauty, industry and skill" in her necessary employments.[604]

[599] BECKWITH, "Customs of the Dakotahs," _Rep. Smith.
Inst._, 1886, Part I, 255-57. Compare RIGGS, "Dakota
Grammar," _Cont. to N. A. Eth._, IX, 205, 206. "Dowries" are
exchanged among the Coast Indians: NIBLACK, _Rep. Smith.
Inst._, 1888, _Nat. Mus._, 367, 368. Bundles of presents are used
by the Abipones: KLEMM, _Kulturgeschichte_, II, 75, 76.

[600] BANCROFT, _op. cit._, I, 276, 277. According
to WAKE, _Marriage and Kinship_, 183, the Indians of
northern California are "so essentially wife purchasers that the
children of a wife who has cost her husband nothing are looked
upon as bastards and treated with contempt."

[601] BANCROFT, _op. cit._, I, 349, 350. The old men
have a similar monopoly among the Zulus: KOHLER, in
_ZVR._, V, 350.

[602] POWERS, _Tribes of California_, 22. A string of
dentalium is worth $40 or $50, _ibid._, 21.

[603] _Ibid._, 247.

[604] WESTERMARCK, _op. cit._, 292, 293;
SCHOOLCRAFT, _Indian Tribes_, IV, 214;
LETHERMAN, "Sketch of the Navajo Tribe of Indians,"
_Rep. Smith. Inst._, 1855, 294.

On wife-purchase, exchange of presents, and wedding ceremonial
among American aborigines see further MARTIUS,
_Rechtszustande_, 57, 58; _idem_, _Ethnographie_, I, 108-10;
EELLS, "Indians of Wash. Ter.," _Rep. Smith. Inst._,
1887, 665 (price of woman $100 to $400); MCGEE, "Siouan
Indians," _XV. Rep. of Bureau of Eth._, 178; DORSEY,
"Siouan Sociology," _ibid._, XV, 242; TURNER, "Ethnology
of the Ungava District," _ibid._, XI, 188; MACCAULEY,
"Seminole Indians of Florida," _ibid._, V, 495, 496
(ceremonies); KOHLER, "Studien," _ZVR._, V, 342, 352
ff.; POST, _Familienrecht_, 183; SCHOOLCRAFT,
_Indian Tribes_, II, 48.

Marriage by purchase appears also among various African peoples.[605] The bride-price is usually rendered in cattle or goats, the amount varying greatly even in the same tribe. From two to thirty cows will buy a wife among the Kafirs. But, as sometimes happens, if a youth through his friends reveals to the father a liking for his daughter, he must in consequence pay more oxen for his bride.[606] By the Zulu a newly bought wife is regarded as an investment of capital from which is expected a return of interest through her labor and the children which she bears. Should he be disappointed in his bargain, the woman becoming sick, weak, or remaining childless, he sends her back to her father and demands a return of the cattle.[607] The Damara are so poor "that they are often glad to take one cow for a daughter." The rate is much higher among the Banyai. "In Uganda, the ordinary price of a wife is either three or four bullocks, six sewing needles, or a small box of percussion caps, but Mr. Wilson was often offered one in exchange for a coat or a pair of shoes."[608] Very commonly in Africa wives are pawned or even mortgaged, and they are devolved upon the husband's heirs as a part of the inheritance.[609]

[605] LETOURNEAU, _L'évolution du mariage_, 137 ff.;
KOHLER, in _ZVR._, V, 350 ff.; _idem_, "Das Negerrecht,"
_ibid._, XI, 419 ff., 433, 434, 435-41; REHME, "Das
Recht der Amaxosa," _ibid._, X, 37, 38; HENRICI,
"Das Recht der Epheneger", _ibid._, XI, 134; POST,
_ibid._, XI, 232 (Amaxosa); _idem_, _Familienrecht_, 183, 184;
BUCHNER, _Kamerun_, 31 ff.; especially FRITSCH,
_Die Eingeborenen Süd-Afrikas_, 112 ff. (Kafirs), 141-44 (Zulus),
192-94 (Bechuanas), 365 (Namaquas), 444, 445 (Bushmans); and
MUNZINGER, _Ostafrikanische Studien_, 146 ff., 240, 241,
319 ff., 387; ELLIS, _Ewe-Speaking Peoples_, 153 ff.,
199 ff.

[606] WESTERMARCK, _op. cit._, 393. Compare
FRITSCH, _op. cit._, 112, 113, who says the "price
varies from some six or seven oxen to thirty or more, if the
daughter of a respectable chief is concerned." The price is
usually paid in instalments; and, according to Fritsch, among the
Kafirs the only thing which distinguishes a woman from cattle is
the fact that her lord and master may not wantonly kill her or
do her severe bodily hurt; for then the chief would demand the
composition or blood-money.

[607] In such case the father may return the woman to the husband
with a part of the cattle; and thus the higgling will proceed
till an agreement is reached: FRITSCH, _op. cit._, 143,
144; _cf._ RATZEL, _Hist. of Mankind_, II, 434 (Zulus),
370 (Bechuanas).

[608] WESTERMARCK, _op. cit._, 393; RATZEL,
_op. cit._, III, 16; WILSON AND FELKIN, _Uganda and the
Egyptian Soudan_, I, 187. Purchase or exchange of gifts exists
widely among the peoples on the northern borders of Abyssinia:
MUNZINGER, _Ostaf. Studien_, 146 ff., 240, 241, 319
ff., 387. _Cf._ also POST, _op. cit._, 183, 184;
LETOURNEAU, _op. cit._, 137 ff.; WAKE, _op.
cit._, 213-15; WAITZ, _Anthropologie_, II, 108-17 (many
examples).

[609] WAITZ, _op. cit._, II, 118, 119; KOHLER,
"Das Negerrecht," _ZVR._, XI, 422-24. In case of the death of a
husband who has made part payment for his wife, the son or other
heir pays the balance due and takes the woman: _ibid._, 423, 424.
For cases of wife-pawning among the Siamese see BASTIAN,
_Rechtsverhältnisse_, 407 ff.

Throughout the rude tribes of Asia and northern Europe, more especially among those of the Turco-Tartaric race, wife-purchase exists in its crudest form.[610] The _kalym_, or bride-price, is usually rendered in horses or cattle. The young Kirgese, for instance, has to pay from three hundred to one thousand head of cattle or one hundred mares for a wife, five mares being reckoned as the equivalent of a camel.[611] Ordinarily a widow depreciates in market value as compared with a maiden;[612] but the Turcoman is more practical, knowing the advantage of experienced service. Though generally a young girl may be had for five camels, he is quite willing to give fifty or even a hundred for a well-preserved widow.[613] The Tartar maiden of northern Asia is sold by her parents for such goods as pass current in exchange. She brings usually a variable number of sheep, horses, or cattle; but the price is also rendered in other commodities, such as brandy, beer, or linen. The contract is arranged with the utmost exactness between the parents. The future husband and wife are not even informed. In theory, at least, "their sentiments, their desires and antipathies, are not taken into consideration." When all is carefully specified, the contract of sale is legally completed before witnesses; but the bride is not delivered to the bridegroom until after the ceremony of marriage, which takes the form of symbolical capture.[614] In China the harsher features of this custom are somewhat softened. A "present is given by the father of the suitor, the amount of which is not left to the good will of the parties ... but is exactly stipulated for by the negotiators of the marriage," the transaction thus differing but little in form from an ordinary bargain, although it must not always be regarded as an actual contract of sale, but rather as a means of providing the wife's dower.[615]

[610] See particularly KOHLER, in _ZVR._, V, 334 ff.,
who gives much interesting matter relating to these peoples;
also POST, _op. cit._, 184 ff.; LETOURNEAU,
_op. cit._, 143 ff.; WESTERMARCK, _op. cit._, 393, 395;
SCHROEDER, _Hochzeitsbräuche_, _passim_; BUCH,
_Die Wotjäken_, _loc. cit._

[611] POST, _op. cit._, 185, 186. Among the Kirgese of
Semipalatinsk cattle are the unit of exchange in which other
property is reckoned: _ibid._, 186. Post gives many interesting
details as to prices of women among the Asiatic and European
peoples.

[612] POST, _ibid._, 190 ff., gives examples. "Bei
den Osseten im Kaukasus zahlt man für Wittwen die Hälfte
des Brautpreises der Jungfrau, bei den Arabern am Sinai
die Hälfte oder ein Drittel."--_Ibid._, 191. _Cf._ also
WESTERMARCK, _op. cit._, 392.

[613] LETOURNEAU, _L'évolution du mariage_, 144. Women
who have shown themselves fruitful sometimes bring more than
girls: POST, _op. cit._, 190, 191; _Die Anfänge des
Staats- und Rechtsleben_, 41 ff.; _Afrikanische Jurisprudenz_, I,
340, 341.

[614] LETOURNEAU, _op. cit._, 143, 144. _Cf._
KOEHNE, "Das Recht der Kalmücken," _ZVR._, IX, 461
ff., who shows that the Kalmuck wife is in a relatively worthy
position.

[615] WESTERMARCK, _op. cit._, 394, 395;
JAMIESON, _China Review_, X, 78. But compare
MÖLLENDORFF, _Das chinesische Familienrecht_, 21, 23,
_passim_; and SMITH, _Village Life in China_, chap.
xxiii. According to HUC, _Chinese Empire_, II, 225 ff.,
the price is paid in two instalments, one part at the signing
of the contract, another a few days before the wedding. Gifts
are also made by the bridegroom's parents; while the bride's
parents provide her with a trousseau. _Cf._ KOHLER,
"Aus dem chinesischen Civilrecht," _ZVR._, VI, 365 ff., 405,
406; LETOURNEAU, _op. cit._, 144, 145; RATZEL,
_Hist. of Mankind_, III, 493-508; KLEMM,
_Kulturgeschichte_, VI, 102-24.

In all branches of the Semitic race marriage, at some time, has been a matter of simple sale and purchase. The married woman, in early Arabia, was looked upon as merely a bond servant. "I charge you with your women," says the prophet, "for they are with you as captives." Accordingly, Robertson Smith informs us, in Arabic lexicons _áwânî_, or "captives," is "actually used in the sense of married women generally."[616] The _mahr_, or bride-price, was paid to the woman's kindred. But under Islam it has become identical with the _sadâc_, or present to the bride, the two terms being synonymous.[617] The Arabic _mahr_ is the same as the Syriac _mahrâ_ and the Hebrew _móhar_; and in each case it is paid to the damsel's father.[618] In the early days of Israel, apparently, the amount of the bride-price established was fifty shekels of silver;[619] and Boaz actually declares that he has purchased Ruth the Moabitess to be his wife.[620] At this time, however, the context shows that marriage among the Jews was something more than a mere bargain, though there can be little doubt that actual wife-purchase originally existed. "At a later date, a girl was, until puberty, at the disposal of her father, who could either sell her or marry her to whom he pleased, being a Hebrew. There were, however, certain conditions, one of which was that the purchaser could not sell the girl to another person, and if he did not espouse her, or marry her to his son, he was bound, when she reached the age of puberty, or at the end of six years, to aid her in obtaining freedom by reclaiming from her father the price paid for her services."[621] "In the betrothal by _kasaph_, of the later Talmudic law, purchase appears as a mere survival. The man gives to his chosen bride, in the presence of two witnesses, a piece of money or some other gift of equal value, with the words: 'Be thou consecrated to me.' Even the _peruta_ or smallest coin used in Palestine or some unimportant friendly service was legally sufficient;[622] and this sham purchase has been perpetuated in the modern Jewish ceremony of 'marrying by the penny.'"[623]

[616] SMITH, _Kinship and Marriage_, 77 ff. He quotes
the following lines from the _Kâmil_, 270 ff.:

"Never let sister praise brother of hers: never let daughter
bewail a father's death;
"For _they_ have brought her where she is no longer a free woman,
and _they_ have banished her to the farthest ends of the
earth."

[617] SMITH, _op. cit._, 78, 79. _Cf._ on the Arabs,
LETOURNEAU, _op. cit._, 117; WESTERMARCK,
_op. cit._, 395; POST, _op. cit._, 191-93, _passim_;
especially KOHLER, "Studien," _ZVR._, V, 357 ff., and
the literature there cited; _idem_, "Ueber das vorislamitische
Recht," _ibid._, VIII, 241, 248, 259; and TORNAUW, "Das
Erbrecht nach den Verordnungen des Islams," _ibid._, V, 129-37;
FRIEDRICHS, "Das Eherecht des Islam," _ibid._, VII,
259-61, 243, 252, 272.

[618] SMITH, _op. cit._, 79.

[619] Deut. 27:29; _cf._ LICHTSCHEIN, _Die Ehe nach
mosaisch-talmudischer Auffassung_, 10.

[620] Ruth 4:10; Hosea 3:2. _Cf._ SMITH, _op. cit._, 79;
WESTERMARCK, _op. cit._, 395; and in general on Hebrew
matrimonial customs see BADER, _La femme biblique_,
1-225, 114, 115 (móhar).

[621] WAKE, _op. cit._, 237; WEILL, _La femme
juive_ (1874), 11, 12, 117 ff.

[622] LICHTSCHEIN, _Die Ehe_, 11, 12;
MIELZINER, _Jewish Law of Marriage and Divorce_, 77 ff.
This author's surmise that the symbolical marriage with money was
adopted under influence of the Roman _coemptio_ is, of course,
not well founded: _ibid._, 78 n. 2.

[623] WESTERMARCK, _op. cit._, 395. Even in the days of
Abraham the purchase price is beginning to be transformed into
a dower: "And the servant brought forth jewels of silver, and
jewels of gold, and raiment and gave them to Rebekah; he gave
also to her brother and to her mother precious things."--Gen.
24:53. _Cf._ WESTERMARCK, 408, and the authorities there
cited.

Traces of marriage by purchase, real and pretended, are also widely diffused throughout the nations of the Aryan stock. Among the Afghans the price of a bride is paid to the father, but he returns a part of it as a dower.[624] In upper Albania the price is equivalent to 600 marks; and there the symbols of rape appear in the marriage ceremony.[625] According to Leist and Zimmer, the Hindu maiden in Vedic times was sought of her father, not by the suitor himself, but by a friend called the bride-wooer;[626] but, as a legal form, the bride must be paid for by rich presents,[627] which were, however, returned to her as a dower.[628] Here we have to do with a survival; but originally actual wife-purchase, side by side with wife-capture, must have existed. One of the eight forms of marriage mentioned in the _Ordinances of Manu_ as having been proper for the two lower castes, but here condemned as immoral,[629] is the _Âsura_ rite. It is described as "the gift of a maiden voluntarily after presenting to the kinsmen and the maiden wealth as much as the suitor can."[630] Disapproval of real wife-purchase thus early produced two very important results: the institution of dower, already mentioned, and the _Ārsha_ rite, or ceremonial purchase, still the most common form of marriage in India.[631] But the victory was by no means complete. "According to Dubois, to marry and to buy a wife are in India synonymous terms, as almost every parent makes his daughter an article of traffic."[632]

[624] KOHLER, in _ZVR._, V, 361. _Cf._
LETOURNEAU, _op. cit._, 147, who says that so much do
they regard wives as property that in case of remarriage the
second husband has to indemnify the family of the first for the
bride-price.

[625] KOHLER, _loc. cit._, 361, 362. Even in recent
times the chieftains in middle Albania were accustomed to steal
their wives from Turkish families and to compel them to receive
Christian baptism: _ibid._, 362.

[626] The "bride-wooer" appears in many places:
SCHROEDER, _Hochzeitsbräuche_, 32-45, 200 ff.;
KOHLER, "Indische Gewohnheitsrechte," _ZVR._, VIII, 90.

[627] ZIMMER, _Altindisches Leben_, 309-11, 314.
LEIST, _Alt-arisches Jus Gentium_, 125-75, gives
a masterly discussion of marriage among the early Aryans,
with particular reference to the Hindus. With this should be
compared the able paper of KOHLER, "Indisches Ehe-
und Familienrecht," _ZVR._, III, 342-442, who differs on some
important points; and SCHRADER, _Sprachvergleichung
und Urgeschichte_, 381 ff. The "rich presents" referred to
consisted, in case of actual purchase, of one hundred cows; and
LEIST, _op. cit._, 128, notes the coincidence of this
number with one hundred beeves mentioned by HOMER,
_Iliad_, xi, l. 244.

[628] See _Apastamba_, II, 6, 13, 12.

[629] But Manu is not always consistent regarding the legality
of the actual bride-money; see _Ordinances_, IX, 93: BURNELL
AND HOPKINS, 260 n. 7; and _cf._ KOHLER, "Indisches
Ehe- und Familienrecht," _ZVR._, III, 345 n. 8.

[630] BURNELL AND HOPKINS, _Ordinances of Manu_, Lect.
III, 20, 21, 24, 31, 41 ff., 47-50. "This form is also practiced
at the present day by people claiming to be Brahmans, _e. g._,
the Caiva Brahmans, called 'Gurukkal,' in southern India, who
seldom can get wives for less than a thousand rupees. It often
happens that low-caste girls are palmed off on them."--_Ibid._,
49 n. 2. _Cf._ JOLLY, _Hindu Law of Partition_, 73-76,
for a discussion of the marriage forms; _idem_, _Ueber die
rechtliche Stellung der Frauen_, 15-18.

[631] One of the eight marriage forms mentioned by Manu with
approval: The "gift in due form of a maiden is called the
_Ārsha_ rite, when a pair or two of cattle have been legally
received from the bridegroom."--BURNELL AND HOPKINS,
_op. cit._, III, 29, 48, 49. _Cf._ JOLLY, _op. cit._,
16; LEIST, _Alt-arisches Jus Gentium_, 130-33, for
the consequences of disapproval of capture; and for the
transformation of the purchase-price into the _Çulka_ institution
or dower, _ibid._, 501 ff.

[632] WESTERMARCK, _op. cit._, 396; DUBOIS,
_A Description of the Character, Manners, and Customs of the
People of India_ (Madras, 1862), 102; _cf._ BURNELL AND
HOPKINS, _op. cit._, 49 n. 2.

The custom of rendering a compensation for a wife, Aristotle tells us, was prevalent in ancient Greece.[633] The bride-price consisted of "countless gifts;"[634] and in the Homeric age a maid was called "one who yields to her parents many oxen as presents from her suitor."[635] The Roman marriage by _coemptio_ was a conveyance of the bride to the bridegroom through the mancipatory process in essentially the same way as a slave or an ox was sold. Gaius calls it an "imaginary sale;"[636] and it is usually regarded as a reminiscence of actual wife-purchase among the primitive Romans or their ancestors.[637] Moreover, in marriage by _usus_ the husband gained full control of the wife by a year's prescription, exactly as in the case of any property.[638]

[633] ARISTOTLE, _Politics_, II, viii. Compare
HRUZA, _Ehebegründung_, 8 ff.

[634] ἥδνα ἀπερείσια: _Iliad_, xvi, l. 178; _Odyssey_, xix, l.
529. _Iliad_, xi, ll. 244 f., mentions one hundred oxen as the
price. _Cf._ LEIST, _op. cit._, 128; SCHRADER,
_Sprachvergleichung und Urgeschichte_, 381, 382.

[635] "Alphesiboia": _Iliad_, xviii, l. 593; _cf._
WESTERMARCK, _op. cit._, 396; and SCHRADER,
_op. cit._, 381.

[636] POSTE, _Gaius_, I, 113, 88, and the editor's
notes, 89 ff.

[637] It is so regarded by SOHM, _Institutes of Roman
Law_, 361 n. 3; by WESTERMARCK, _op. cit._, 397;
SCHRADER, _op. cit._, 382. ROSSBACH, _Die
römische Ehe_, 65 ff., 93, 145, 245 ff., holds that there was one
original form from which both _coemptio_ and _confarreatio_ were
derived, and that it combined purchase with religious elements.
KARLOWA, _Die Formen der röm. Ehe_, 1 ff., 45.,
criticises Rossbach and holds that it remains to be proved that
_coemptio_ is a survival of real purchase, it being more likely
a particular use of _mancipatio_ arising perhaps under Servius
Tullius; but LEIST, _op. cit._, 128 ff., rejects this
view and favors the theory of survival. LANGE, _Römische
Alterthümer_, I, 105, 106; and BERNHÖFT, _Römische
Königszeit_, 186, are in practical agreement with Karlowa. _Cf._
POSTE, _Gaius_, 89 ff.; MUIRHEAD, _Private
Law of Rome_, 441-43, who rejects the theory of survival;
LETOURNEAU, _L'évolution du mariage_, 149, 150;
MONLEZUN, _Femme mariée_, 28-30.

[638] See LUBBOCK, _Origin of Civilization_, 74, who
compares _usus_ and _coemptio_. _Cf._ POSTE, _Gaius_, I,
§ 111, p. 88; LETOURNEAU, _op. cit._, 150.

Herodotus mentions wife-purchase as a Thracian custom;[639] and until very recently it was also practiced by the Slavs.[640] The bazar of Babylon,[641] where, according to Herodotus, girls were publicly sold in marriage, found its counterpart not long since in the maiden-market of the Roumanian Gainaberg.[642] The ancient laws of Ireland reveal it in curious relation to wife-capture. The legitimate wife is the wife who is bought. At the first marriage the full _coibche_, or bride-price, is paid to the father; at the second, the bride receives one-third; and at each succeeding marriage a gradually increasing portion falls to her share.[643] Marriage by abduction is illegal. In that case children begotten during the first month belong to the wife's family, though they may be conveyed to their father for a composition; and to such conveyance he is legally entitled, when the abduction takes place with the woman's consent. After the first month the relation between husband and wife is partially legalized. The children begotten thereafter belong to their father, though they are really illegitimate and hence not entitled to full rights of inheritance. Furthermore, a gift from the wife to the husband is void. But every defect in the marriage is at once cured by payment and acceptance of the _coibche_. In case the price cannot be arranged the family of the wife are entitled to damage. They may demand that another woman be placed at their disposal for an equal term; or they may exact a partnership share in the earnings of the abductor.[644]

[639] HERODOTUS, v, 6: RAWLINSON, III, 180.

[640] KRAUSS, _Sitte und Brauch der Südslaven_, 272,
275; KOVALEVSKY, _Mod. Customs and Anc. Laws of Russia_,
26 ff. It existed among the Russians, Bohemians, and Pomeranians:
WESTERMARCK, _op. cit._, 397 n. 6, and the authorities
there cited; but TURNER, _Slavisches Familienrecht_, 16
ff., 22, denies the former existence of purchase.

[641] HERODOTUS, i, 196: RAWLINSON, I, 262, 263.

[642] KOHLER, "Der Mädchenmarkt auf dem Gainaberg,"
_ZVR._, VI, 398-400. The bride-price was represented by the
presents tendered by the wooer. "Einst brachten die Eltern ihre
heirathsfähigen Töchter (fetele) sammt der Mitgift auf den Berg,
wo die Männer, die petitori, um sie warben; die Mädchen sassen
dabei auf ihrer Mitgift oder standen hinter derselben. Der
Kauflustige bot Geschenke und wurde mit den Eltern einig; der
Frauenkauf war bereits ins donatorische Stadium getreten." Kohler
finds, in certain customs connected with the market, relics of
promiscuity and wife-capture.

[643] "Der Vater erhielt das volle Coibche bei der ersten Ehe
der Tochter, bei der zweiten 2/3, bei der dritten 1/2, und so
fort bis zu 1/21; der Rest scheint der Tochter zugefallen zu
sein; eine weitere verhältnissmässige Gabe, welche ebenfalls nach
Anzahl der Ehen sich verkleinerte, kam dem Haupte der Familie
zu."--KOHLER, in _ZVR._, V, 363; O'CURRY,
_Manners and Customs of the Ancient Irish_; SULLIVAN,
_Int._, I, clxxiii ff.; _Ancient Laws of Ireland_, III, 315.

[644] KOHLER, in _ZVR._, V, 363, 364; _Ancient Laws of
Ireland_, III, 401, 405, 541-45. In the early laws of Wales the
_cowyll_ corresponds to the Irish _coibche_, but it is already
transformed into a dotal portion: KOHLER, _op. cit._,
365, 366.

Finally, it may be noted, that traces of wife-purchase are found in every branch of the Germanic race. Nowhere, perhaps, can the evolution of the marriage contract in all its phases be studied with more satisfaction than in the history of our own ancestors. The subject will, therefore, be further considered in a later chapter.

III. THE ANTIQUITY OF SELF-BETROTHAL OR FREE MARRIAGE

We have now traced in broad outline the extent of wife-purchase, and studied its general character and its principal forms. It appears essentially as a real contract of sale between third parties. Technically, at least, the bride and sometimes the bridegroom have nothing to do with the transaction. We have seen incidentally that the purchase-contract tends to become a ceremonial conveyance, and the bride-price to disappear in the dower. This transition is a fact of great social and legal import, and must therefore receive further attention. But, first, another question of interest arises: What is the place of wife-purchase in the evolution of human sexual relations? If it was not preceded by wife-capture as a general phase, is it the primitive method of contracting marriage? Or, to resolve the question into a more convenient form, what is the antiquity of mutual agreement as the basis of matrimonial union between a man and a woman?

On its face, marriage by purchase appears as an institution which could arise only after considerable sociological and mental progress had been made. It implies relatively advanced ideas of property and social organization. Precisely the same is true, in a less degree, of wife-stealing, particularly of the systematic capture of women. It implies for one thing an appreciation of the economic value of woman's services which is wholly inconsistent with most primitive conditions. There are strong indications that in the beginning of distinctly human history marriage arose in the mutual consent of the parties. Nay, to discover the prototype of the primitive matrimonial contract it may be necessary to cross the boundary-line which separates man from the lower animals. This fact seems to have been too much neglected by writers on the history of marriage. Post, indeed, throws out a significant suggestion. Among very low races, he says, betrothal is a compact between the bride and the bridegroom. As soon, however, as the genealogical organization is further developed, marriage is changed from an individual relation to a relation between families, and the betrothal becomes a compact between the kindred groups. With the decay of the gentile constitution marriage and betrothal gradually become again an individual matter; so that in this regard the lowest and the highest stages of culture present the same phenomena.[645]

[645] POST, _Familienrecht_, 158; _Afrikanische
Jurisprudenz_, I, 377, 378, where will be found examples of
peoples among whom free betrothal exists.

Here we have the general phases of evolution correctly indicated, though the author lays too much stress on the influence of the gentile system. But the view we have expressed is sustained in a remarkable way by the elaborate researches of Westermarck. In a series of chapters he has put it almost beyond question that a wide liberty of sexual choice on the part of the female is the rule among primitive men as it is among the lower animals.[646] Everywhere, with few exceptions, the male appears as the wooer. In the female passion is less eager.[647] She therefore requires courting, and thus in effect she secures the chief place in the function of sexual selection. Even in the case of the reproductive cells of plants, where any external difference has been observed, "the male cell behaves actively in the union, the female passively;" and the same law prevails among lowly organized animals.[648] In general, animals contend in some sort of rivalry for their mates. Even the most timid during the season of love "engage in desperate combats with each other for the possession of the female, and she, although comparatively passive, nevertheless often exercises a choice, selecting one of the rivals." Fighting for mates "occurs even among insects, and is of universal prevalence in the order of the vertebrata."[649] This method of courtship, not to be confused with capture, may also have prevailed among "our primeval human ancestors," and it still exists in many forms. Sometimes a fist-fight, a battle with clubs, a duel with bows and arrows, or a "pulling-match" settles the claims of rival suitors; and often, as among the North American aborigines, the contest takes the form of "wrestling for wives."[650]

[646] WESTERMARCK, _Human Marriage_, chaps. vii-xiii,
inclusive.

[647] DARWIN, _Descent of Man_, chap. viii, 222 ff.;
ESPINAS, _Des sociétés animales_, 323 ff. _Cf._
GROOS, _Die Spiele der Thiere_, 129 ff.

[648] WESTERMARCK, _op. cit._, 157; SACHS,
_Text-Book of Botany_, 897; DARWIN, _op. cit._, chap.
viii; KULISCHER, _Die geschlechtliche Zuchtwahl_, in
_ZFE._, VIII, 140 ff., who regards the dance as originally a form
of wooing. Such is also the view of ESPINAS, _op. cit._,
305 ff.; and GROOS, _op. cit._, 257 ff., 263 ff.

[649] WESTERMARCK, _op. cit._, 159, 253;
DARWIN, _op. cit._, chap. xiii; WALLACE,
_Darwinism_, 282 ff.

[650] MARTIUS, _Rechtszustande_, 589; _idem_,
_Ethnographie_, I, 111; WAITZ, _Anthropologie_,
III, 101; DARWIN, _op. cit._, chap. xix, 561 ff.;
LUBBOCK, _Origin of Civilization_, 101 ff.; and
especially WESTERMARCK, _op. cit._, 159-63, who gives
many examples.

But animals have other means of wooing their mates. To this end the male in a much higher degree than the female is provided with certain notes or calls, strong odors, beautiful top-knots, fine plumes, brilliant colors, or similar ornaments. Even with the most pugnacious species of birds, says Darwin, "it is probable that the pairing does not depend exclusively on the mere strength and courage of the male; for such males are generally decorated with various ornaments, which often become more brilliant during the breeding season, and which are sedulously displayed before the females. The males also endeavor to charm their mates by love-notes, songs, and antics; and the courtship is, in many instances, a prolonged affair. Hence it is not probable that the females are indifferent to the charms of the opposite sex, or that they are invariably compelled to yield to the victorious males. It is more probable that the females are excited, either before or after the conflict, by certain males, and thus unconsciously prefer them."[651] Such colors, love-songs, and ornaments belong to what Darwin calls the "secondary sexual characters." For, in the sexual selection, the "struggle is of two kinds; in the one it is between the individuals of the same sex, generally the males, in order to drive away or kill their rivals, the females remaining passive; whilst in the other, the struggle is likewise between the individuals of the same sex, in order to excite or charm those of the opposite sex, generally the females, which no longer remain passive, but select the more agreeable partners."[652] These characters, he thinks, depend upon the æsthetic sense of the females. "Just as a man can give beauty, according to his standard of taste, to his male poultry, or more strictly can modify the beauty originally acquired by the parent species, ... so it appears that female birds in a state of nature, have by a long selection of the more attractive males, added to their beauty or other attractive qualities."[653] Brilliant colors, for instance, have thus been acquired by birds and insects because they are "beautiful or otherwise agreeable, whereas the characters resulting from natural selection have been acquired because they are useful." Hence "far from co-operating with the process of natural selection, sexual selection, as described by Mr. Darwin, produces effects disadvantageous to the species;"[654] for many of the secondary characters are a source of danger.[655] But Wallace, in his well-known criticism of Darwin,[656] has established a probability that their primary purpose is not æsthetic, but utilitarian. "The fundamental or ground colors of animals," he says, "are very largely protective;" and these are extended in the line of the greatest structural and nervous development.[657] They are therefore an evidence of a surplus of nervous energy, which is especially active at the excitable period of courtship. So far as the female exercises a choice, it is not because the males are beautiful, but because they are "the most vigorous, defiant, and mettlesome." The view of Wallace is supported in the main by that of Westermarck, who especially emphasizes the fact that colors and the other secondary characters are "upon the whole advantageous, inasmuch as they make it easier for the sexes to find each other." They exist to be _seen_. By association of ideas it is natural that the females should find them pleasing, for to them they are the "symbols of the most exciting period of their lives."[658] Furthermore, "the greatest advantage is won with the least possible peril;" for "usually they occur in males only, because of the females' greater need of protection. They are not developed till the age of reproduction, and they appear, in a great many species, only during the pairing season."[659] It follows, therefore, that sexual selection is but another aspect of natural selection, and the secondary sexual characters are perpetuated in harmony with the law of survival of the fittest. Whichever view is accepted, the fact with which we are especially concerned remains: the female exercises the function of choice.

[651] DARWIN, _op. cit._, chap. xiii, 367; chap. viii,
214 (prolonged courtship of animals). _Cf._ WESTERMARCK,
_op. cit._, 159.

[652] DARWIN, _op. cit._, chap. xxi, 614.

[653] _Ibid._, chap. viii, 211; _cf. ibid._, 496, 554.

[654] WESTERMARCK, _op. cit._, 241.

[655] DARWIN, _op. cit._, chap. xvi, 496.

[656] WALLACE, _Darwinism_, 268-300; also his _Tropical
Nature_, 221-48.

[657] Accepting TYLOR'S results in _Coloration of
Animals and Plants_ (London, 1886).

[658] WESTERMARCK, _op. cit._, 252, 249.
WALLACE has also noted the use of colors as a means of
recognition: _Darwinism_, 217 ff.; and admits that the sexual
colors may become _pleasing_ to the females, though they may
be devoid of an æsthetic sense. This alleged inconsistency is
criticised by POULTON, _Colours of Animals_, 286.

[659] WESTERMARCK, _op. cit._, 240-52, especially 241,
244, 251, 252.

For a comparison of the different theories of sexual selection
see GEDDES AND THOMPSON, _Evolution of Sex_, 3-30,
who think the truth lies between the views of Darwin and
Wallace; POULTON, _op. cit._, 284-335, who sustains
Darwin's view; and FINCK, _Primitive Love_, 229 ff.,
who attempts "to demolish the theory of sexual selection in
reference to the lower races of man as Wallace demolished it in
reference to animals." _Cf._ ESPINAS, _Des sociétés
animales_, 290 ff.; BROOKS, _Law of Heredity_ (1883),
166-241; GROOS, _Die Spiele der Thiere_, 230 ff., 267
ff., who takes a medial position between Darwin and Wallace;
WEISMANN, _Studies in the Theory of Descent_ (London,
1882), I, 161 ff.; EIMER, _Die Entstehung der Arten_
(1888); and GEDDES, articles "Reproduction," "Sex,"
"Variation and Selection," in _Encycl. Brit._

Turning now to the human race, we find that the same law prevails. Savage and barbarous men are passionately fond of self-decoration and display. "There are peoples," says Westermarck, "destitute of almost everything which we regard as necessaries of life, but there is no people so rude as not to take pleasure in ornaments;" and he quotes Spencer's remark that, great as is the vanity of the civilized, it is exceeded by the vanity of the uncivilized.[660] Every sort of decoration is in use. Attention is paid especially to the arrangement of the hair. The body is disfigured or transformed in a variety of ways. The ears, nose, or cheeks are pierced or bored, and rings or other ornaments inserted. The teeth are colored or otherwise mutilated; and the body is scarred, painted, or tattooed.[661] Now it is demonstrated by wide observation that the primary purpose of self-decoration is the stimulation of sexual passion. In all parts of the world the desire for it "is strongest at the beginning of the age of puberty," all such customs "being practiced most zealously at that period of life."[662] The "common notion that women are by nature vainer and more addicted to dressing and decorating themselves than men" does not hold good, at any rate for savage and barbarous peoples. The females are, of course, often fond of adornment, in this way trying to please or attract their lovers. In some cases tattooing is practiced "exclusively or predominately" by the women, and "the men sometimes wear fewer ornaments;" but as a general rule it is the man who shows the greater desire to beautify himself as a means of gaining the favor of the opposite sex.[663] The woman requires to be wooed, for she is more fastidious than man in the choice of a mate. "A Maori proverb says, 'Let a man be ever so good-looking, he will not be much sought after; but let a woman be ever so plain, men will still eagerly seek after her.'"[664] Besides, it is remarked that "very generally among the lower races, the females are even more unattractive in aspect than the males."[665] But both sexes co-operate in the process of selection; and as social institutions are developed man shares in it more and more. In this way are transmitted the distinctive mental and physical characteristics of each race which are necessary to its survival, and upon which its standard of beauty depends.[666]

[660] WESTERMARCK, _op. cit._, 165; SPENCER,
_Principles of Sociology_, I, 71, 72. _Cf._ DARWIN, _op.
cit._, I, chap. xix, 573 ff., 556-85, for a general discussion of
the "secondary sexual characters of man."

[661] WESTERMARCK, _op. cit._, 168-82, holds that
tattooing is primarily a means of sexual attraction. The same
is true of circumcision, 201-6; and of clothing, 186-212. The
facts "appear to prove that the feeling of shame, far from
being the original cause of man's covering his body, is, on the
contrary, a result of this custom." When not due to climate,
it "owes its origin, at least in a great many cases, to the
desire of men and women to make themselves mutually attractive,"
211. But see HELLWALD, _Die mensch. Familie_, 60-96,
who ascribes clothing, not to shame, but the love of ornament;
and FINCK, _Primitive Love_, 247 ff., who entirely
rejects Westermarck's view, alleging, as a matter of fact, that
tattooing "has had from the earliest recorded times more than a
dozen practical purposes, and that its use as a stimulant of the
passion of the opposite sex probably never occurred to a savage
until it was suggested to him by a philosophizing visitor."
On circumcision see KOHLER, in _ZVR._, XI, 429, 430;
VI, 417-19, reviewing WILKEN, _De besnijdenis bij de
volken van den Indischen Archipel_ (1885); PLOSS, _Das
Kind_, I, 342 ff., 367 ff.; HELLWALD, _op. cit._, 362;
LIPPERT, _Kulturgeschichte_, II, 317, who believes
circumcision originated as a form of expiation. CRAWLEY,
_Mystic Rose_, 135 ff., regards tattooing, circumcision, and
other mutilations, not as ornaments, but as "practically" amulets
or charms to secure the safety of organs and functions.

[662] This conclusion of Westermarck is disputed by
FINCK, _op. cit._, 261 ff.

[663] WESTERMARCK, _op. cit._, 173 ff., 182 ff. _Cf._
DARWIN, _op. cit._, 577 ff., 597 ff., who thinks women
among savages are fonder of ornament than men; but the context
shows that he does not refer to our "progenitors."

[664] WESTERMARCK, _op. cit._, 253. DARWIN,
_op. cit._, chap. xx, 596 ff., holds this view, in the case of
the "secondary sexual characters," for our "progenitors."

[665] SPENCER, _op. cit._, I, 747; _cf._
WESTERMARCK, _op. cit._, 273, 277, 278.

[666] That standards of beauty depend upon racial difference
is urged by WESTERMARCK, chap. xii, especially 273
ff., against DARWIN, _op. cit._, chap. xx, 595-99, who
holds that racial differences are due to different standards of
beauty. On female beauty and ideals of beauty among all races see
PLOSS'S full and interesting discussion: _Das Weib_, I,
59-124.

If the law of sexual selection has been rightly stated, it would, indeed, be strange if women among low races should not preserve some liberty of choice in marriage. In the savage state, says Darwin, man keeps woman in a far more abject position "than does the male of any other animal;" and hence it is not surprising that "he should have gained the power of selection."[667] But it must not be forgotten that even the lowest races of which we have any knowledge have advanced far beyond the primordial state of man. Darwin himself comes to the conclusion, after examining the evidence, that savage "women are not in quite so abject" a condition as is commonly supposed;[668] and the facts show that in a vast number of cases they have a decisive, though not always a legal, voice in the choice of a husband.

[667] DARWIN, _op. cit._, chap. xx, 597.

[668] _Ibid._, chap. xx, 597-99.

According to Post, the right of assent is subject to the following principal variations:[669] (1) Among a large number of peoples the contract or betrothal is made by the parents or relatives, no regard at all being had to the will either of the bride or bridegroom.[670] Infant-marriage or betrothal, in particular, is of frequent occurrence; and sometimes children are promised even before they are born. Naturally such engagements are often merely contracts of sale; but usually they have a deeper social significance as a means of extending and more firmly knitting the bonds of family or gentile union. This custom implies something more than mere brutal indifference to the wishes of the children; and, besides, it serves the ethical purpose of restricting the sexual liberty of the bride.[671] Such a contract is not always legally binding upon the children, especially the bridegroom; and when it is binding, the betrothed often disregard it, or the bride runs away with another man.[672] (2) In some cases the consent of the bride alone is ignored;[673] (3) in others her approval is asked _pro forma_, but refusal never occurs and would not be tolerated;[674] (4) or the choice may, in fact, be left to the young man and woman, while the right of betrothal belongs to the guardian. With the Bataks of Sumatra, for instance, vows and pledges are exchanged by the lovers; and in case the girl is betrothed by her parents against her will, she may run away to the giver of the love-pledge, who is then compelled to receive her. A similar rule prevails in Timor and among the Tscherkese of Asia Minor.[675] Sometimes (5) the young people are legally bound to submit to the choice of the guardian only in case of the first marriage, which, accordingly, is often dissolved after a few years or even a few months; while the second marriage, being usually a marriage of inclination, may long endure.[676] Again (6), even among such rude peoples as the Timorlaut islanders, the consent of the betrothed is sometimes essential to a valid marriage;[677] and still more striking are those cases (7) in which the bride and bridegroom themselves appear as the contracting parties, the right of assent now belonging to the parent or guardian. The legal conditions are thus reversed.

[669] POST, _Familienrecht_, 166-71, 163, 157 ff.

[670] In such cases the right of betrothal belongs either to
the parents, to the families, or to particular relatives, as,
for instance, to the mother, eldest brother, or maternal uncle
of the bride: POST, _Familienrecht_, 162-64, 166, 167;
_idem_, _Anfänge des Staats- und Rechtslebens_, 32, 33. See
WESTERMARCK, _op. cit._, 213-15, notes, for examples. In
West-Australia the consent of the whole tribe is necessary to a
girl's marriage: WESTERMARCK, 215; KOHLER, in
_ZVR._, III, 357 ff.; VI, 398.

[671] According to POST, _Familienrecht_, 205, the
purpose is always _Familienverbindungen anzuknüpfen_; and
usually the betrothed bride is held strictly to a life of
chastity, even among peoples where such is not the custom for
girls: POST, _op. cit._, 212, 213; LIPPERT,
_Geschichte der Familie_, 149, 150. Of this, good examples are
found in the South Sea: KOHLER, "Studien," _ZVR._, V,
356; see also STARCKE, _Primitive Family_, 212, 256,
257; WAKE, _Marriage and Kinship_, 78-80; POST,
_Geschlechtsgenossenschaft_, 80; _Ursprung_, 57; _Anfänge des
Staats- und Rechtslebens_, 35; _Afrikanische Jurisprudenz_,
I, 365-71; WESTERMARCK, _op. cit._, 213, 214. On
early betrothals see further KOHLER, in _ZVR._, V,
342, (Aleuts); VI, 166 (Burma); VII, 352 (Australia), 372 (New
Guinea); X, 99-103, 116 (Bombay); XI, 164 (India); SPENCER
AND GILLEN, _Native Tribes of Cent. Australia_, 558.

[672] POST, _Familienrecht_, 213. Of course, in case of
breach, the parents or other contracting parties are subject to
fine, damage, or restitution, in a variety of ways: _ibid._, 214;
WESTERMARCK, _op. cit._, 224.

[673] POST, _Afrikanische Jurisprudenz_, I, 362, 363,
gives many examples. _Cf. idem_, _Familienrecht_, 167.

[674] This is the rule among Jackuts, the Sarts of Turkestan,
and the southern Slavs: POST, _op. cit._, 167, 168;
KRAUSS, _Sitte und Brauch der Südslaven_, 320.

[675] POST, _op. cit._, 168, 169.

[676] Such is the case among the Menangkabaw Malays of Sumatra;
and, according to Burmese law, the woman who has once been
married has no guardian: POST, _op. cit._, 169.

[677] POST, _op. cit._, 169.

Free marriage in one or the other of these forms is very widely diffused, though it may not always be possible to determine the exact legal relation of the guardian and the betrothed.[678] Sometimes self-betrothal and contract by the guardian are found side by side. Such is the case in Rotuma; and among the Turks of middle Asia the conventional marriage, in which the couple are contracted by their fathers in childhood, is found in connection with natural marriage which rests upon the vows of the betrothed.[679]

[678] For many examples in America, Africa, Asia, and the
island groups, see WESTERMARCK, _op. cit._, 215-21;
DARWIN, _op. cit._, chap. xx, 597-99.