Chapter II: Character of Marriage in Early Law

When clear light first breaks upon the ancient world round the Mediterranean Sea we find that the relation of the sexes exists in three forms. The most savage tribes, such as those which Herodotus saw or heard of in Libya and Scythia, have no regular marriage at all. Some lived in a kind of promiscuity; some were probably polyandrous. The Eastern peoples—Persians, Lydians, Babylonians, and so forth—are polygamous, as was Israel in the days of Moses and Solomon, though in a much lesser degree after the Captivity, and as was the Trojan Priam of the Homeric poems. The Western peoples, and especially the Greeks and the Italians, were, broadly speaking, monogamous, although concubinage superadded to lawful marriage, especially among the Greeks, was not unknown. The contrast of the East and the West was marked; and this particular difference was not only characteristic but momentous, since it presaged a different course for the social development of the two regions[158]. So when the Teutonic and Celtic peoples came later on the stage, they too were generally monogamous, though among the heathen Celts the tie seems to have been somewhat looser than among the Teutons, and a plurality of wives may have been not uncommon in heathen times. Tacitus, while dwelling on the sanctity of German marriages, observes that occasionally the chieftains had more than one wife, owing to the wish of other families for alliance with them[159]. Polygamy slowly died out of the East under Roman rule, though possibly never quite extinguished, for we find prohibitions of it renewed by the Emperors down to Diocletian, before whose time all subjects had become citizens. It maintained itself in the Oriental court of the Sassanid kings of Persia, and was indeed one of the features of Persian life which most shocked the philosophers of the later Roman Empire. As there is no trace of it in the Roman law[160], it need not concern us further, since it has never, except in the singular instance of the Mormons, reappeared in any of the communities which have been regulated either by Roman or by Teutonic law[161].

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Footnote 158:

Euripides (_Androm._ vv. 173-180) contrasts the marriage usages of
barbarians and Greeks, and dilates (cf. v. 465 sqq.) on the evils of
polygamy.

Footnote 159:

Tac. _Germ._ c. xvii.

Footnote 160:

Although Julius Caesar, if we may credit Suetonius, caused a measure
to be drafted for enabling him to marry as many wives as he liked for
the sake of having legitimate issue (Suet. _Julius_, c. 52).

Footnote 161:

Among the Jews it was (though forbidden by Roman law) not formally
abolished till the tenth century.

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Before describing the Roman system, let us note three general features which belong to the marriage customs, not indeed of all, but certainly of most peoples in the earlier stages of civilization. They are worth noting, because they constitute the central threads of the history of the relation during civilized times.

1. The marriage tie has more or less of a religious or sacred character, being generally entered into with rites or ceremonies which place it under supernatural sanctions. This is, of course, more distinctly the case where monogamy prevails.

2. In the marriage relation the husband has a predominant position both as regards control over the person and conduct of the wife, and as regards property, whether that which was hers or that which was brought into common stock by her and by him.

3. The tie is comparatively easy of dissolution by the husband, less easily dissoluble by the wife. This is a natural consequence of the inferior position which she holds in early society.

Although these three features are generally characteristic of the earlier stages of family law, they are not universally present; and their presence or absence in any given community does not necessarily coincide with a lower or higher scale of civilization in that community. The temptation to generalize in these matters is natural, but it is dangerous. True as may seem the general proposition, that the higher or lower position of women in any society is a pretty good index to the progress that society has made, there are too many exceptions to the rule for us to take it as a point of departure for inquiry. Nor can these exceptions be always accounted for by any one cause, such as race or religion.