Chapter XXI: Part I: , 279-87; cf. RATZEL, Hist. of Mankind, II, (2)

[679] POST, _op. cit._, 158; VÁMBÉRY, _Das
Türkenvolk_ (1885), 229, 230.

IV. PRIMITIVE FREE MARRIAGE SURVIVING WITH PURCHASE, AND THE DECAY OF THE PURCHASE-CONTRACT

It is commonly assumed that where marriage by purchase exists woman must necessarily be in an abject condition. The "average facts," says Spencer, "show that at first women are regarded by men simply as property, and continue to be so regarded through several later stages: they are valued as domestic cattle."[680] Such also is the opinion of Letourneau, who takes a very pessimistic view of the early condition of woman. During a long period her wishes in marriage were utterly ignored. The sale of women and children for slaves or wives is the result of brute force and the primitive despotism of man. Marriage by purchase, he says, "implies a profound disdain of woman, her complete assimilation to movables, to cattle, to things in general."[681] Doubtless among low races the lot of woman is often extremely harsh and degraded. The examples already given demonstrate that she is sometimes treated merely as an object of sale or exchange; and where polygyny exists wife-purchase may have a strong tendency to reduce her to slavery.[682] But a more careful examination of the evidence proves that marriage by purchase is not inconsistent with a high degree of matrimonial choice on the part of the woman. As already suggested, purchase is far from being the original method of contracting marriage. Like the patriarchal authority in general,[683] by which the liberty of the son as well as that of the daughter is sometimes destroyed, it is of comparatively late origin, arising with the institution of property and an appreciation of the economic value of labor. "It may be said generally that in a state of nature every grown-up individual earns his own living. Hence there is no slavery, as there is, properly speaking, no labour." A man then had no reason "to retain his full-grown daughter; she might go away, and marry at her pleasure."[684]

[680] SPENCER, _Principles of Sociology_, I, 748, 750.
Elsewhere he says: "The only limit to the brutality women are
subjected to by men of the lowest races is the inability to
live and propagate under greater;" but, he adds, savage women
are just as selfish and just as cruel as men, they only lack
the _power_. A captured or purchased woman is an "absolute
possession."--_Ibid._, I, 746-49.

[681] LETOURNEAU, _L'évolution du mariage_, 150, 130
ff. KOHLER, in _ZVR._, V, 338 ff.; VI, 342, 343; VIII,
242; XI, 416, 423, appears to take the same position. _Cf._
also his "Indisches Ehe- und Familienrecht," _ZVR._, III, 357
ff.; and LUBBOCK, _Origin of Civilization_, 99 ff.;
POST, _Familienrecht_, 201-5; FRIEDRICHS, in
_ZVR._, VIII, 377, notes; BERNHÖFT, in _ZVR._, IV, 234;
_idem_, _Staat und Recht der röm. Königszeit_, 196 ff.

[682] WAKE, _Marriage and Kinship_, 180, 183, 198 ff.,
holds, against Kames, that even in the case of polygyny the evil
effects of purchase may be exaggerated, though they are often bad.

[683] WESTERMARCK, _op. cit._, 223-35, gives a detailed
discussion of the paternal power as to the liberty of the son.
Very often, though not so generally as the daughter, he is denied
freedom of choice in marriage.

[684] _Ibid._, 222. STARCKE, _Primitive Family_, 256,
257, emphasizes the importance of female labor in early marriage;
and this fact is well established by Grosse in the book already
analyzed.

In marriage by purchase there is still a chance for the wooer; and the unwilling maiden has many an opportunity to avoid a husband whom she does not fancy.[685] Elopement has its chief significance in this connection. Instead of being necessarily a relic of wife-capture, it is rather the means by which the lovers, particularly the bride, maintain the actual right to dispose of themselves in marriage.[686] Many illustrations of this fact might be presented. Among the aborigines of North and South America, where, as we have seen, wife-purchase and even wife-capture are common, woman possesses a wide liberty of choice. In arctic regions the wife sometimes runs away from the husband forced upon her and joins her lover;[687] and in general the maiden often thus escapes a detested suitor. Such is the case, for instance, among the Greenlanders, Dakotas, Caribs, and Patagonians;[688] while among the Abipones, according to Dobrizhoffer, when a man thinks fit to choose a wife, he must bargain with the parents of the girl about the price. But "it frequently happens that the girl rescinds what had been settled and agreed upon ... obstinately rejecting the very mention of marriage. Many girls, through fear of being compelled to marry, have concealed themselves in the recesses of the woods or lakes; seeming to dread the assaults of tigers less than the untried nuptials. Some of them, just before they are to be brought to the bridegroom's house, fly to the chapel, and there, hidden behind the altar, elude the threats and the expectation of the unwelcome" suitor.[689] In exactly the same way she gains her will in Tierra del Fuego, where the lover serves for his bride;[690] and among the same people "the eagerness with which the women seek for young husbands is surprising, but even more surprising is the fact that they nearly always attain their ends."[691] The Comanche suitor must buy his bride of her parents; but unless she manifests her willingness by leading his pony into the stall, the bargain is void.[692] A similar freedom in choosing her mate is asserted by the woman of the Pueblos, Creeks, Chippewas, and various other tribes;[693] while the existence of real affection and true courtship is shown by the fact that suicide sometimes happens on account of disappointed love.[694]

[685] On the place of the wooer in wife-purchase see
LEIST, _Alt-arisches Jus Gentium_, 130 ff. What Spencer
says of marriage by service is true in a high degree of marriage
by purchase in general: SPENCER, _op. cit._, I, 754, 755.

[686] On the radical difference between elopement and capture
see FISON AND HOWITT, _Kamilaroi and Kurnai_, 354,
343, 348-51; and compare PLOSS, _Das Weib_, I, 53, 54;
WESTERMARCK, _op. cit._, 223.

[687] DARWIN, _op. cit._, chap. xx, 597, 598.

Among the Point Barrow Eskimo marriages are formed for "reasons
of interest." Sometimes a wife is taken against her will. Yet
"women appear to stand on a footing of perfect equality with the
men both in the family and in the community." The "wife is the
constant and trusted companion of the man in everything except
the hunt, and her opinion is sought in every bargain or other
important undertaking."--MURDOCH, in _IX. Rep. of Bureau
of Eth._, 410, 413, 414. _Cf._ EGEDE, _Greenland_, 144.

[688] WESTERMARCK, _op. cit._, 216, 9. CAPTAIN
MUSTERS, _At Home with the Patagonians_ (1872), affirms
that the finest trait of the Patagonian "Tehuelches character
is 'their love for their wives and children; matrimonial
disputes are rare, and wife-beating unknown; and the intense
grief with which the loss of a wife is mourned is certainly not
'civilized,' for the widower will destroy all his stock and burn
all his possessions,' and possibly become careless of his life."
A similar affection is shown among the Eskimo, who are also
polygynous: WAKE, _Marriage and Kinship_, 184, 185.

Free courtship exists among the Omahas: DORSEY, "Omaha
Sociology," _III. Rep. of Bureau of Eth._, 259, 260; and in
general there is sometimes individual choice among the Siouan
peoples: _idem_, "Siouan Sociology," _ibid._, XV, 178.

[689] DOBRIZHOFFER, _Account_, II, 207; _cf._
DARWIN, _op. cit._, chap. xx, 598; and PLOSS,
_Das Weib_, I, 53, 54; KLEMM, _Kulturgeschichte_, II, 75.

[690] DARWIN, _op. cit._, chap. xx, 598;
WESTERMARCK, _op. cit._, 216.

[691] WESTERMARCK, _op. cit._, 216, and authorities
there cited.

[692] PLOSS, _op. cit._, I, 53.

[693] Among the Kaniagmuts, Thlinkets, Nutkas, and the
South American Guanás: WESTERMARCK, _op. cit._,
215, 216. Divorce is free among the South American Charuas:
DARWIN, _op. cit._, 598. For evidence of courtship and
consent among the California Indians see BANCROFT,
_Native Races_, I, 398, 411, 412. SPENCER, _op. cit._,
I, 722, 723, 754, 755, discusses the favorable position of
women among the American aborigines and elsewhere, due in part
to "likeness of occupations between the sexes." For further
illustrations of freedom of choice or of liberty in the family
see PRATZ, _Hist. de la Louisiane_, II, 385, 389;
WAITZ, _Anthropologie_, III, 101, 103; RATZEL,
_Hist. of Mankind_, II, 125, 128.

[694] RIGGS, "Dakota Grammar," _Cont. N. A. Eth._,
IX, 206, gives an example. _Cf._ also the cases mentioned by
WESTERMARCK, _op. cit._, 215.

Free marriage, very often in connection with wife-purchase, prevails widely throughout the African peoples. Accounts differ as to the Kafirs. According to Fritsch, a woman is bought like any chattel.[695] But Leslie declares that generally the man first tries to win her consent; for it is "a mistake to imagine that a girl is sold by her father in the same manner, and with the same authority, with which he would dispose of a cow."[696] On the other hand, Fritsch shows that the heart of the Bechuana, and especially that of the despised Bushman, "is not so full of his oxen," the woman having some liberty of choice.[697] Winwood Reade informed Darwin, with respect to the negroes of western Africa, that "the women, at least among the more intelligent pagan tribes, have no difficulty in getting the husbands whom they may desire, although it is considered unwomanly to ask a man to marry them. They are quite capable of falling in love, and of forming tender, passionate, and faithful attachments."[698]

[695] FRITSCH, _Die Eingeborenen Süd-Afrikas_, 112, 113;
with whom WAKE, _op. cit._, 213, 215, agrees.

[696] WESTERMARCK, _op. cit._, 220; LESLIE,
_Among the Zulus and Amatongas_, 194; _cf._ also PLOSS,
_Das Weib_, I, 54; DARWIN, _op. cit._, 598. The despotic
power of the husband is modified in practice through influence of
the wife's friends: REHME, in _ZVR._, X, 39, 40, 41, 42;
RATZEL, _Hist. of Mankind_, II, 434.

[697] FRITSCH, _Die Eingeborenen Süd-Afrikas_, 192, 444,
445.

[698] DARWIN, _op. cit._, 599. Freedom of choice in
varying degrees, often with wife-purchase, prevails among the
Ashantees, Loangos, Sognos, Shulis, Mádis, Marutses, Hottentots,
and Gold Coast negroes: WESTERMARCK, _op. cit._, 220,
221; PLOSS, _op. cit._, I, 54. _Cf._ WAKE, _op.
cit._, 214, 215; MUNZINGER, _Ostaf. Studien_, 146, 207,
324; WAITZ, _Anthropologie_, II, 116, 117.

Throughout all Micronesia and in many parts of Melanesia marriage implies the consent of the betrothed. The New Caledonian girl is thus always consulted; and, if forced to obey her parents, she takes the first opportunity to elope with the man of her choice.[699] In the New Britain group "after the man has worked for years to pay for his wife, and is finally in a position to take her to his house, she may refuse to go, and he cannot claim back from the parents the large sums he has paid them in yams, cocoanuts, and sugar-canes."[700] Betrothal by the guardian and self-marriage appear together in Burma. In the first case the daughter is given by her father in return for service and gifts. Her consent is not essential; but if she runs away from her husband more than three times, she is free, and her parents retain the gifts. In the second case the girl elopes without the guardian's consent, a recognized marriage relation being thus established, though the guardian may reclaim the bride. Should she, however, return thrice to her husband, she remains his legal wife.[701] "Among the Minahassers of Celebes courtship or love-making 'is always strictly an affair of the heart and not in any way dependent upon the consent or even wish of the parents.'"[702] The Rejang suitor of Sumatra elopes with the girl and pays the price afterwards; and such is often the case in Australia, among the uncivilized tribes of India, and throughout the Indian Archipelago. In all these cases, as well as among some of the Turanian peoples of central and northern Asia, the choice of the woman, even without elopement, is usually decisive, though often the arrangement of the marriage belongs legally to the parents.[703]

[699] For these examples see WESTERMARCK, _op. cit._,
218, notes.

[700] WESTERMARCK, _op. cit._, 218. According to
KOHLER, "Studien," _ZVR._, V, 385, actual wife-capture
still exists in the New Britain islands. "Es kommt vor,
dass die Frau dem ersten Mann weggenommen wird und dass
die Leiche des getödteten ersten Mannes das Hochzeitsmahl
bildet."--POWELL, "Unter den Cannibalen," _Globus_
(1884), 328.

[701] KOHLER, "Das Recht der Birmannen," _ZVR._, VI,
166, 168.

[702] WESTERMARCK, _op. cit._, 219.

[703] See WESTERMARCK, _op. cit._, 218-20, and the
many examples there mentioned, with citation of the sources;
and compare POST, _Familienrecht_, 166, 168, 169,
_passim_; KOHLER, in _ZVR._, V, 354 ff.; WAKE,
_op. cit._, 215, 216; PRJÉVALSKI, _Mongolie et pays
des Tangoutes_ (1880), 47, 207; HUC, _Travels in
Tartary_, I, 52, 185. For female choice in Australia: FISON
AND HOWITT, _Kamilaroi and Kurnai_, 234, 242, 326, 327
(Kurnai); 276, 280, 289, 348-54 (elopement). The Kalmuck wife is
a free woman: KOEHNE, "Das Recht der Kalmücken," _ZVR._,
IX, 463; and WAKE gives interesting proofs of the
coexistence of real affection with polygyny and purchase: _op.
cit._, 218.

It is very easy to exaggerate the bright as well as the dark features of primitive social life. The reports of travelers, often untrained in the interpretation of the facts which they observe, are notoriously untrustworthy. It is extremely difficult to discern the motives which actuate men in a stage of culture remote from our own. Nevertheless it seems certain that the position of uncivilized woman with respect to marriage is not quite so hopeless as is generally imagined. The facts appear to demonstrate that woman's original liberty of selection has never been entirely lost. It is evident that wife-purchase, though sometimes the means of degradation, even of marital bondage, is compatible with a high degree of matrimonial choice. The ideas which influence the "uncivilized" man in selling his daughter are probably often very similar to those which govern the thrifty father in modern society when he insists on securing a good "match" for his child. The price is regarded as a fair equivalent for the services to which the parent is justly entitled in return for rearing the girl.[704] The Kafir maiden who brings a good price from her suitor is not therefore necessarily a "chattel" any more than is the daughter whose labor the civilized parent lets out for hire.[705] A high price may be looked upon also as a proper recognition of the rank or of the mental and physical attractions of the bride.[706] Furthermore, it is significant that actual bride-purchase may coexist with advanced ethical and religious conceptions of the marriage state. Such, according to Kohler, is the case in the Punjab, where the courts under British rule have decided that the sale of a woman to be a wife is not punishable as a crime under the statute forbidding the sale of a human being into slavery;[707] and Leist has shown that in the _dharma_ period of early Aryan history the purchased wife was not regarded as a "thing," but in the fullest sense as a free wife entitled to share the _sacra_ of the husband's house. Nay, the actual payment of the legal bride-money in certain cases was the only means through which marriage by purchase could reach the proper ethical end of legitimate marriage: the birth of a son to perpetuate the ancestral worship.[708]

[704] So among the Kafirs: SHOOTER, _The Kafirs of Natal
and the Zulu Country_ (London, 1857), 49: WESTERMARCK,
_op. cit._, 402; and among other tribes: _ibid._, 402, note.

[705] Compare the remark of WAKE, _op. cit._, 199, who,
in speaking of purchase in its relations to polygyny, says: "It
may be doubted whether the ideas which govern such a transaction
(wife-purchase) are very different from those which guide persons
under similar circumstances in monogamatic societies. When the
savage buys a girl to be his wife, it is for the purpose of
having, if not a companion, a helpmate, and a mother of his
children, and her father parts with her for those objects."

[706] Accordingly, it is sometimes regarded as a disgrace to
marry without payment of the bride-price; and the girl takes
pride in the amount she brings to her father. For examples
see WAKE, _op. cit._, 183, 191; BANCROFT,
_Native Races_, I, 277, 349, 350; POWERS, _Tribes of
California_, 22, 56.

[707] KOHLER, "Die Gewohnheitsrechte des Pendschabs,"
_ZVR._, VII, 227. _Cf._ TUPPER, _Punjab Customary Law_,
III, 9, who gives the decision referred to; and LEIST,
_Alt-arisches Jus Gentium_, 46, 47.

[708] We have here the case of an "appointed daughter." The son
of a "brotherless maiden" was sometimes reserved to be the heir
of her father, not of her husband. How could a man marry such
a brotherless girl and secure himself in the possession of his
child, to continue his own hearth-worship? This might be effected
by payment of the "official" price of one hundred cows and one
wagon (_Wagen_), and this was so even in the later period when
the law-books frowned upon wife-purchase: LEIST, _op.
cit._, 110 n. 10, 127 n. 3, 130, 131, and the references to the
ancient law-books there given.

Another fact, sometimes misinterpreted, seems to point clearly to the persistence of original free marriage. It is highly significant that wife-purchase appears never to have existed at all among a certain number of very low races, with which nevertheless marriage rests on the free consent of the parties. Such is the case among the California Wintun, the Alaskan Yukonikhotana, the Andamanese, the Chittagong hill tribes, and certain African peoples. Among the "Pádams, one of the lowest peoples of India, it is customary for a lover to show his inclinations whilst courting by presenting his sweetheart and her parents with small delicacies, such as field mice and squirrels, though the parents seldom interfere with the young couple's designs, and it would be regarded as an indelible disgrace to barter a child's happiness for money."[709] So likewise with the Veddahs[710] either no presents are given on either side, or else the ceremony consists simply in offering some food to the parents of the bride; and elsewhere the proffer of similar "wooing-gifts," without previous stipulation, must be looked upon either as a token of good-will or as an indication of the ability of the bridegroom to provide for a wife, rather than as a means of purchase.[711] The probational marriages of the Seri Indians appear to have a like significance.[712] May we not go a step farther? Is it not probable that the widely diffused custom of bestowing presents of greater value, even where the amount is established by usage or previous agreement, may sometimes be due to like motives? Though, as a rule, the presentation of such gifts represents a "weakened" form of wife-purchase, it does not seem necessary to assign the origin of the practice to a single cause. The same is true of the custom of exchanging presents between the two families. Usually it is rightly explained as a stage in the decay of purchase and in the rise of the dower; but when we find the return of gifts in use among such rude peoples, for instance, as the Bechuanas, the Kalmucks, the Makassars, and the American Indians,[713] it seems reasonable to suppose that the custom, in some cases at least, may represent a ceremonial development of free marriage, taking its rise in various motives. Thus among the Todas, it has been suggested, the transaction appears as an exchange of dowers to serve as a security for the mutual good behavior of the future couple.[714] Similarly with the American Indians the gift to the bride's parents may sometimes be designed to purchase clan privileges[715] or to procure the "alliance of the wife's cabin;" while the exchange of presents, which is found where it is usual for the husband to take up his abode in the wife's home, ought perhaps to be regarded as a matrimonial compact of alliance between the two families.[716]

[709] WESTERMARCK, _op. cit._, 397.

[710] Compare SARASIN, _Die Weddas von Ceylon_, I, 460,
461. Sometimes girdles (_Lendenschnuren_) are exchanged by bride
and groom. Free courtship exists; and this primitive people
presents a notable example of the pairing-family. The English
author DEBUTTS naïvely remarks, "The savage Veddahs live
in pairs like the beasts of the forest": SARASIN, _op.
cit._, I, 549.

[711] Such is the case among the Ainos of Yesso and the Brazilian
Puris, Coroados, and Coropos: WESTERMARCK, _op. cit._,
397, 398. Among the Polynesians the present seems to be designed
to gain the good-will of the wife's parents, but when the wife's
family is the inferior in rank, the husband, though rendering
the wooing-gift, receives a dower with his bride: WAKE,
_op. cit._, 390. On the "wooing-gift" see POST,
_Familienrecht_, 173, 175; _idem_, _Afrikanische Jurisprudenz_,
I, 342 ff.; KOHLER, in _ZVR._, V, 356; KOEHNE,
_ibid._, IX, 461 (Kalmucks); HILDEBRAND, _Ueber das
Problem_, 17 ff., who, as already noted, regards gift as
preceding purchase; and CRAWLEY, _Mystic Rose_, 386
ff., who holds that "the so-called bride-price was originally of
the same class as the _kalduke_, a pledge, a part of one's self,
given to another and received from him."

[712] Among the Seri the woman has much liberty of choice:
"certainly she holds the power of veto, ostensible if not
actual." During the preliminary courtship she occupies a position
of great dignity. "When all parties concerned are eventually
satisfied a probationary marriage is arranged, and the groom
leaves his clan and attaches himself to that of his bride. Two
essential conditions--one of material character and the other
moral--are involved in this probationary union; in the first
place the groom must become the provider for, and the protector
of, the entire family of the bride." For a year he thus shows his
"skill in turtle-fishing, strength in chase, subtlety in warfare,
and all other physical qualities of competent manhood.... During
the same period the groom shares the jacal and sleeping robe
provided for the prospective matron by her kinswomen, not as a
privileged spouse, but merely as a protecting companion; and
throughout this probationary term he is compelled to maintain
continence--_i. e._, he must display the most indubitable
proofs of moral force." To this kind of service the character
of wife-purchase is denied: MCGEE, "The Seri Indians,"
_XVII. Rep. of Bureau of Eth._, Part I, 279 ff.

[713] For these and other examples see KOHLER,
"Studien," _ZVR._, V, 342, 351, 353; POST,
_Familienrecht_, 176-79; _idem_, _Ursprung des Rechts_,
65; _idem_, _Anfänge des Staats- und Rechtslebens_, 55;
BANCROFT, _Native Races_, I.

[714] Among the Todas, on betrothal, "dowers" consisting of
buffaloes are exchanged. If the husband discards his wife, her
father demands a return of her dower; if the wife abandons the
husband, his father may take back his gift. In case the marriage
be canceled because the husband has not fulfilled his part of the
contract he may be "fined a buffalo or two": MARSHALL,
_A Phrenologist amongst the Todas_, 210-13, 217-19. Compare
WAKE, _op. cit._, 451.

[715] See the passage quoted from BOAZ, p. 191, above.
The "ceremonies" may sometimes be intended to prove the man's
ability to support a family: RATZEL, _Hist. of Mankind_,
II, 125.

[716] WAKE, _op. cit._, 390; LAFITAU, _Mœurs
des sauvages amériquains_, I, 565, 568. _Cf._ MORGAN,
_Ancient Society_, 454, on the presents to the wife's relatives
among the Syndiasmians (American Indians).

Nevertheless, after every allowance is made, the custom of purchasing wives bears the indelible stamp of barbarism. Like polygyny, which it so often accompanies, it is an offense against the feelings and the dignity of woman. Therefore, often at a relatively early period of social progress, it falls into disrepute; but while it is gradually abandoned as a thing unseemly or disgraceful, traces of it may long survive. On the one hand, as in the case of the Roman _coemptio_, the Hindu _ārsha_, the Anglo-Saxon _beweddung_, or the Jewish contract with the penny, the form of sale is present in the wedding ceremony; or, on the other hand, the bride-money, though still rendered, comes in time to be regarded as simply a compensation for the guardianship of the woman;[717] or else, passing through several intermediate stages, it is slowly transformed into a dower.[718]

[717] SOHM, _Eheschliessung_, 22 ff.;
KÖNIGSWARTER, _Histoire de l'organisation de la
famille_, 123; and WEINHOLD, _Deutsche Frauen_, I, 320,
hold this view. But the point is disputed and will be recurred to
in another chapter.

[718] In general, on the decay of wife-purchase, see
WESTERMARCK, _op. cit._, 402-16, who gives the fullest
and most detailed account; POST, _Familienrecht_,
173-81, who discusses the stages of decline.

In the first stage of decline the bride-price appears as a nominal compensation, out of proportion to the real value of the girl. It usually consists of presents to the wife's parents or relatives, and sometimes these are scarcely distinguishable from the "wooing-gifts" already mentioned; while later it may degenerate into a mere symbol or become a sportive social observance whose meaning is entirely forgotten.[719] Again, among a large number of peoples, custom requires that a part, sometimes all, of the gifts constituting the price, or their equivalent, shall be returned to the bridegroom or his family; and it is significant that special care is sometimes taken, as among the Indians of Oregon, "not to turn over the same horses or the same articles."[720] With other peoples a part or the whole of the purchase price comes to the bride herself. Either the father turns it over as a marriage portion, or it is paid to her directly by the bridegroom. In the latter case, as Westermarck observes, it is often difficult "to make out whether the presents obtained from the bridegroom formed originally a part of the bride-price or were only a means of gaining her own consent."[721] One step more, and we reach the stage of development in which the father provides his daughters with a dotal portion out of his own substance.[722]

[719] Thus in Lovrec, Dalmatia, where the bride-price is no
longer customary, when the _Brautführer_, on the day before
the nuptials, comes to the bride's home for the _Brautkiste_
containing her trousseau, he finds a child sitting upon it,
who must be bought off through payment of a piece of gold:
POST, _op. cit._, 177. Sometimes the symbolical purchase
coexists for a time with real purchase: _ibid._, 177; _idem_,
_Geschlechtsgenossenschaft_, 73; _idem_, _Grundlagen des Rechts_,
235.

[720] WESTERMARCK, _op. cit._, 409 ff. For many examples
of exchange of gifts see KOHLER, "Studien," _ZVR._,
V, 340, 341, 347-49, 351, 353, 365; POST, _op. cit._,
177-79.

[721] WESTERMARCK, _op. cit._, 409, 410, giving examples.

[722] The marriage contract had already reached this last
stage among the ancient Babylonians and Assyrians. They had a
remarkably high ideal of family life. The facts disclosed by the
records are wholly inconsistent with Herodotus's story regarding
the sacred prostitution of the unmarried women. At the nuptials
it was customary to state that the bride was "pure" or "without
stain." Polygyny existed only as the rare luxury of the rich. As
a rule, the formation of a second marriage was equivalent to a
divorce from the first. Two principles, declares SAYCE,
the maternal and the paternal, "were struggling for recognition."
Perhaps "they were due to a duality of race; perhaps they were
merely a result of the circumstances under which the Babylonians
lived. At times it would seem as if we must pronounce the
Babylonian family to have been patriarchal in character; at
other times the wife and mother occupies an independent and even
commanding position. It may be noted that whereas in the old
Sumerian hymns the woman takes precedence of the man, Semitic
translation invariably reverses the order: the one has 'female
and male,' the other 'male and female.'"--_Babylonians and
Assyrians_, 13. The practical result was that the sexes were
nearly equal in marriage. The individual and not the family was
the social unit; and the individuality of the woman was fully
recognized. She controlled her own property. She could buy and
sell, borrow and lend, sue and be sued, and inherit equally with
her brother. She might become a priestess, the head of a city, or
the queen of the state. The wife was her husband's equal in the
business world. The possession of property "brought with it the
enjoyment of considerable authority." She "could act apart from
her husband, could enter into partnership, could trade with her
money, and conduct law-suits in her own name."--_Idem_, _Social
Life among the Assyrians and Babylonians_, 50, 51. The bride's
dower was paid by her father to the bridegroom; but it was her
property. Sometimes the husband enjoyed the use of it for life;
sometimes the wife disposed of it as her private capital. It
was always a means of securing her economic independence, and
thus of promoting the happiness of her married life. "In this
way she was protected from tyrannical conduct upon his part, as
well as from the fear of divorce on insufficient grounds. If
a divorce took place the husband was required to hand over to
the wife all the property she had brought with her as dowry,
and she then either returned to her father's home or set up an
independent establishment of her own." The divorced woman might
marry again if she chose. "Marriage was partly a religious and
partly a civil function. The contracting parties frequently
invoked the gods, and signed the contract in the presence of
the priest. At the same time it was a contract, and in order
to be legally valid it had to be drawn up in legal form and
attested by a number of witnesses. Like all other legal documents
it was carefully dated and registered."--_Idem_, _ibid._, 46,
47, 49, 50. _Cf._ for the forms of contract and ceremony his
_Babylonians and Assyrians_, 13-43; also the interesting account
of SIMCOX, _Primitive Civilizations_, I, 360-79; her
discussion of the similarly advanced domestic relations of the
ancient Egyptians, _ibid._, I, 198-225; KOHLER, "Ueber
zwei babylonische Rechtsurkunden aus der Zeit Nabonids," _ZVR._,
V; and HAUPT, _Die sumerischen Familiengesetze_.

Thus, to summarize, it appears in general that the institution of dower takes its rise in two principal sources: either it is derived through the return gift from its exact opposite, the ancient purchase price of the bride; or, as a means of providing in some way for the wife as a member of the new household, it has developed along with free marriage, and stands as an expression of the natural motives and desires upon which the human family rests. Strangely enough, in our own society the marriage portion "has become a purchase sum by means of which a father buys a husband for his daughter."[723] It may be doubted whether the ideas which actuate the modern plutocrat in such a transaction differ essentially from those of the rich savage or barbarian who succeeds in procuring a beautiful or high-born maiden in exchange for his flocks.

[723] In "our days, a woman without a marriage portion, unless
she has some great natural attractions, runs the risk of being
a spinster forever. This state of things naturally grows up
in a society where monogamy is prescribed by law, where the
adult women outnumber the adult men, where many men never
marry, and where married women too often lead an indolent
life."--WESTERMARCK, _op. cit._, 416.

We have now traced the evolution of the marriage contract throughout its entire course, and are able to perceive in a measure its true place in the general history of the human family. Again the movement has been in a circle. As in the case of monogamy, the genesis of contract must be sought beyond the border-line between man and the lower animals. In the "natural history" stage of human existence marriage rested on the free consent of the man and the woman. It was an informal agreement. The man was the wooer, and to the woman belonged the first place in sexual choice. In obedience to the unvarying requirements of organic law, the best attributes of each race have thus been differentiated: through natural selection they represent the survival of the fittest. At a later stage of development the element of mutual consent falls somewhat into abeyance. With the rise of property, industry, and a more complex social organization, giving birth to new desires and ambitions, contract by the guardian in part supersedes self-betrothal. Purchase and its occasional alternative, capture, depriving woman of her natural right of assent, tend to reduce the wife to concubinage and domestic slavery. But fortunately the victory is not complete. Just as monogamy is never displaced by polygyny as the natural type of marriage, so the consent of woman as the normal condition of matrimonial union is never entirely destroyed by wife-purchase. With the evolution of altruism, the increase of culture, producing sympathy upon which connubial love largely depends, and the gradual recognition of the spiritual equality of the sexes, self-betrothal, like monogamy, again predominates. In short, whether regarded historically or biologically, monogamy and self-betrothal appear simply as two aspects of the same institution; they are connected by a psychic bond, and together they constitute the highest type of marriage and the family.