Chapter II: Modes of Obtaining Wives (2)

This is confirmed by the following comparison of two statements. The first, that of Collins, stating the existence of a crude form of marriage by capture runs thus: "These unfortunate victims [the wives] of lust and cruelty ... are, it is believed, always selected from the women of a different tribe from that of the males (for they ought not to be dignified with the title of men), and with whom they are at enmity.... The poor wretch is stolen upon in the absence of her protectors. Being first stupefied with blows, inflicted with clubs or wooden swords, on the head, back and shoulders, every one of which is followed by a stream of blood, she is then dragged away through the woods by one arm, with a perseverance and violence that it might be supposed would displace it from its sockets." In this manner the woman is said to be dragged to the man's camp, where "a scene ensues too shocking to relate."[144] The second statement made by one of Howitt's reliable correspondents, depicts the state of things with quite different colours: "When a young man has passed a certain number of Boras (initiations) he has a right to choose a wife from among the unmarried and otherwise unappropriated women of the tribe who are of the class permitted to him by the native laws. He claims the girl in the presence of her parents by saying 'I will come and take you by and by,' and they cannot refuse her to him unless he be specially disqualified--as, for instance, if his 'hands are stained with the blood of any of her kin.' And even in that case he may carry her off by force if he can in spite of their refusal. For this purpose he generally comes by stealth and alone. But if he be a very bold warrior, he sometimes goes openly to the girl's camp and carries her off, defying the bravest of her friends to meet him in single combat if they dare to stay him."[145] In this second statement it may be noted that only the unappropriated girls of the tribe and those who are lawfully marriageable may be obtained in this way. Besides, this proceeding appears much more in the light of elopement than capture.

[144] Howitt in _Smiths. Rep._, p. 798.

[145] _Ibid._

Important it is to note that in utter contradiction with those few statements, made by some early observers in New South Wales, _capture_ is usually reported to be merely an exceptional form of contracting marriage. That it was in existence in nearly all tribes seems beyond doubt. Spencer and Gillen, Howitt,[146] Curr[147] mention that marriage by capture occurred. But all these authors add emphatically that this was the most exceptional mode of acquiring a wife.[148] And it appears from Spencer and Gillen's account that capture is effected rather by an avenging party than by an individual enterprise. And even in the case of capture, possession does not mean right. The woman must belong in the first place to the right class (Rusden, Spencer and Gillen), and in the case related by Spencer and Gillen she had to be especially allotted to one of the men by the leader of the party.

[146] _Kam. and Kurn._, p. 343.

[147] _A.R._, i. p. 108.

[148] That capture of females occurs only very seldom is
affirmed by Palmer, _loc. cit._, p. 301, and by Taplin,
p. 10. J. Mathew, _J.R.S.N.S.W._, xxiii. p. 407, states that
marriage by capture takes place between members of hostile
communities. Quoted from Dr. Westermarck, _H.H.M._, p. 389.

_Elopement_ on the other hand is, as we mentioned above, to be found in nearly all tribes. In all cases it is considered as an encroachment on the rights of the family or of the husband over the girl, and it is punished. But the severity of punishment seems to vary according to the tribe; in the Kurnai elopement was probably the most usual way of getting married; it was therefore not so severely punished. The latter seems to apply to all Victorian and New South Wales tribes. In the Central tribes charming by magic and subsequent elopement led to a fight or ordeal, but the matter was apparently not very serious. Whereas, we read in Roth, Grey, Salvado and Oldfield that the punishment was death.[149] Nevertheless, as we have come to the conclusion that these three statements are not quite clear on this point, we may not take this for granted as a geographical distinction between the South-Eastern and North-Western (including W. Queensland) regions. It may be also that abduction of a woman was punished by death or at any rate more severely in case she belonged to a forbidden class.

[149] Also Curr, _A.R._, i. p. 108, affirms that elopement
was usually severely punished and only very seldom
legalized. He knew only three cases where eloped couples
were allowed to live together permanently.

In general it may be said that elopement was always punished, and in the majority of cases afterwards, under certain conditions, legalized and acknowledged. These conditions are: in the first place that bride and bridegroom belong to the right class; and then, pregnancy of the woman or the birth of a child (Kurnai, Yuin); or a victory in the fight which ensues after the offender has been caught (Kurnai, Yuin, Davis, Central tribes); or subsequent exchange of a relative (Yuin, L. Murray, Wakelbura); or a second or third elopement (Kurnai, W. Victoria). Victory in a combat did not mean that it was by pure force that the offender kept the woman. For these combats were regulated and often assumed the form of an ordeal to be undergone (Central and Northern tribes). It is well to notice that the majority of our informants when speaking of elopements never observe the point whether the woman was already married or not.

A few theoretical conclusions from all the facts just enumerated may now be drawn. We have asked at the outset for all the actual circumstances, as well as legal factors connected with the modes of obtaining wives, which express and enforce the validity of marriage. We asked also how does the mental attitude of the native express itself in these facts, as far as individual marriage is concerned. Must we admit that the aborigines have an idea of individual conjugal rights?

In the first place it is quite obvious that according to our definitions of the word _legal_, the ideas of legal and illegal may be applied quite legitimately to the Australian marriage. For there exist different norms, the compliance with which assures to a match its recognition by society, and actual protection at its hands. Whereas, if a marriage was brought about outside these legal norms it had either to be legalized afterwards, whereupon it enjoyed the same privileges, or it was considered illegal and was interfered with. It appears, moreover, from all the facts reviewed that it was always a difficult matter to secure a wife outside the usual forms. The legal norms for marriage consisted in the bringing about the marriage in one of the forms discussed above, and consequently in the fulfilment of the series of conditions, obligations and duties connected therewith. In all these forms there is involved some kind of control of the social group concerned, which enforces the mutual obligations, and which in case of breach of contract had the privilege or the duty of amending the wrong. In the most frequent form, _i. e._ when a female child is promised in infancy, her family is under an obligation to keep the arrangement. Her relatives have not the right to dispose of her otherwise after they have once promised her (Curr, i. 107), and they must also watch over her and prevent any attempt at capture or elopement, as they would have the duty of rescuing her (Curr, Stanbridge). In this case we are also told that the respective local group would interfere. The fact that the engagement was made publicly, and so was known and acknowledged by all the members of the local group and perhaps even of the whole tribe, emphasized its legal aspect. The cases where the tribal authority disposed of the girls or had to give consent itself shows this in a still stronger degree. We see therefore that two social factors were involved in the legal side of the marriage: the family, which was responsible for the carrying out of marriage and often for its maintenance,[150] and the community,[151] which gives its consent and often controls the right performance of expiatory ordeals. It may also be remarked that the mere moral sanction, which stamps one act as right and another as wrong, gives a strong support to the offended party and paralysed the help that the friends would perhaps like to give to the offender. Although it is difficult to adduce sufficient evidence in order to show in detail what were the obligations of the family and where the tribal supervision began--and it seems that these matters were possibly settled only roughly and on broad lines in the Australian society--one thing appears quite clearly from the whole evidence, viz. that in all tribes only those couples were secure from any interference who had married according to the legal form or whose marriage was subsequently legalized. We are informed by Spencer and Gillen that in some cases (when elopement was brought about by magic) there were some relatives who were lawfully entitled to help the eloper. This shows also clearly how little the settlement of these affairs was arbitrary. Elopement was in this case, and in all others, considered as a trespass; when it was a girl it was an encroachment on the rights of the family; when it was a married woman it was an offence against her husband and also perhaps against her family. According to circumstances and varying with the tribe, it was considered as a more or less serious trespass and punished accordingly. In order that an elopement might result in an acknowledged union, it had to be followed always and invariably by certain expiatory acts. Even in the case of capture, we saw in the example given by Spencer and Gillen that the woman was lawfully allotted to one of the party. Individual capture seems to occur very seldom; in its legal aspect it would not differ essentially from the elopement, but it would have had probably less chances of being made valid.

[150] Family means here in the first place the father, who
disposed of his daughter; or in some cases the brother or
near relative, who got or will get a wife in exchange for
her.

[151] Or better, what was called above the tribal
government.

After the legal aspect of marriage has thus been established, it may be pointed out that several of the features of Australian marriage and betrothal set up, besides these legal bonds, other ties which in themselves lead to the carrying out of marriage, and afterwards keep husband and wife together.

In the first place, exchange of women. When a man was to receive a wife in exchange for his relative, it is clear that he felt himself strongly bound to keep his promise; for he lost as much as his partner in case he broke the agreement. We saw also that betrothal established a certain status between the families of the male and the female respectively. This status, the main feature of which was exchange of gifts, with a preponderance of the male's gifts and duties, such as providing food, created certain obligations which further enforced the validity of the contract.

As pointed out above, we can even find, at least in the Central and Northern tribes, clear features of marriage by purchase. Equally important in this light is the fact of exchange of females. This has its theoretical consequences. The two main facts of collective psychology, expressed by marriage by purchase, are (1) that there is a certain value attached to the woman and expressed by the conventional price; (2) that there is the idea of right of property or at least of the individual personal right of the husband over his wife, acquired by him through the fact of purchase. These two facts are very important. For both these sets of ideas can only have been evolved in a society where individual marriage was a well-known, well-recognized and fundamental institution. There would have been no reason to pay for a wife if the possession of her would confer no positive rights on the owner.

The following point may also be adduced here, viz. that generally the old men and other men of influence and power secured the young females of the tribes. It was easier for influential and important men to maintain their right over their wives before as well as after actual possession. Besides, we are informed by all (with the exception of R. H. Mathews) that the rules of exogamy were very strong, excluding in the majority of tribes a good number of females from all attempts by the males of forbidden classes. This undoubtedly contributed also to increase the security and validity of the marital union, by reducing to very few the number of the men who were in a position to interfere with the rights of the husband.

If we now look behind the facts of all these customs, rules and practices to the underlying social psychology, we see that the idea of the individual rights of a man to a woman must have been deeply impressed upon the aboriginal mind. The female, when promised in infancy, belonged to a certain man, who afterwards took possession of her. Neither he nor she had a choice; she belonged to him by the title of obligation; he had no choice, for all the other females were already distributed. Thus, as infant betrothal was prevalent in the majority of the tribes, there was a status in which everybody belonged to somebody or other. At least there were no free females. That such a state of things is indicative of a deeply-rooted idea of personal, individual rights over a woman seems clear. If the value of such rights were not known, nobody would care to secure them so eagerly and so early, especially as the acquirement of these rights was apparently never gratuitous. On the other hand, this complete allotment of all the females of the tribe must have in turn impressed upon the native mind the idea that marriage is a question of regulated rule, of a well-established order, and not a question of private initiation and enterprise. If a man chooses the other way, _i. e._ tries to conquer a wife, he must be prepared to undergo the consequences of it and thus expiate for having broken the custom and rule. It must also be borne in mind that legal norms presuppose the existence, in the society in which they are in force, of quite clear and definite ideas of the rights which they involve. It is impossible that in a given society there would be norms concerning the legality of individual marital rights without the idea of such individual right being known to the social mind. In Australia there are such legal norms, as has been shown above. And _a fortiori_ there must be not only a clear idea of the individual rights of a man to his wife, but these rights must be highly valued.

Marriage contract in nearly all societies is accompanied by some ceremonies, which possess in themselves some binding force, generally of a magical and religious character. This seems to be the case in Australia too. We are in no place told what in a given ceremony would have magical power, and how the natives imagine the working of this power. Nevertheless, we read that in North Central West Queensland the exchange of fire-sticks is binding, and that among the Euahlayi the simple promise of a girl does not create any obligation unless it is strengthened by the act of formal betrothal. It can mean only that to such acts was attributed some magical power, and that this was coercive.[152] From whatever form of superstition it may be derived, it seems beyond doubt that the rudimentary ceremonies described above, such as exchange of fire-sticks, placing of feathers, joining of hands publicly, etc., had some inherent force and an importance as sanctions. They were a form of sacrament. Now I would like to point out that whenever it happens that a certain legal or social fact is transformed into a sacrament, _i. e._ is supposed to be accomplished by the performance of some formality endowed with a supernatural sanction, we have every reason to suppose that this legal or social fact is very deeply rooted in the collective mind, that it corresponds to very inveterate ideas.[153] This seems to be, therefore, also the case in Australia, where individual marriage has also its kind of sacrament. This is another fact, another social institution, in which the collective ideas of the community find their expression. And everywhere we find not only that the idea of individual marriage exists, but that it by no means bears the features of anything like recent innovation, or a subordinate form subservient to the idea of group marriage. As well in the betrothal ceremonies as in infant engagements, in the ideas of legality of marriage, exchange of females and purchase of the wife--in all these facts we find that the aborigines have a deeply-rooted idea and high appreciation of the individual rights of the husband to his wife.[154] It is also to be noted that, as Spencer and Gillen inform us, when a man wished to persuade a woman to elope with him, he resorted to magic; in this presence of a magical element lay a certain degree of justification that ensured him the help of some of his relatives.

[152] Reasons have been already advanced to support our
belief that such betrothal ceremonies were in fact more
frequent than our informants report. Considering now the
force attached by the natives to what is called infant
betrothal, we perhaps have another reason to justify this
supposition.

[153] There is no room here to discuss this general
assertion at length. But it may be made plausible
by pointing out that a certain status must be quite
fundamental in a society to get the religious sanction (for
instance monogamy in our country), and that it requires
undoubtedly a long process in order to transform this
sanction into a formal act and put into a material form the
accumulated action of many social forces.

[154] In what these individual rights consist will be
discussed in detail below. Evidently it is erroneous,
though a frequent error, to understand here exclusively the
sexual rights.

In short the modes of obtaining wives enforced and expressed of themselves a good deal of the validity of marriage. We have still to ask if the marriage was binding for both sides or only for the female. This is an important question and closely connected with the legal aspect of marriage. For marriage being a kind of obligation, the question presents itself, whether only one party was bound by it or both. There is but little direct evidence upon this point in the statements. Beveridge asserts stoutly the latter; from Dawson's statement we conclude that the former was the case, as he says that a man could only under certain conditions repudiate his wife and had to ask the permission of the Chief. But it must be borne in mind that marriage had by no means the features of a contract into which both consorts would enter with mutual agreement. Marriage in Australia must be much more viewed in the light of a privilege acquired by the man, and for which, as we saw, he usually has to pay in one way or the other. It was always a great advantage to a man, both for sexual and economic reasons, as will be clearly evident in the respective chapters. The economic advantages persisted even when she grew old (compare Lumholtz, p. 207). It was therefore scarcely necessary to compel an individual to fulfil an obligation that was advantageous to him. It may be therefore said that marriage, being an advantage for a man--usually acquired by exchange, gifts, or an act of bravery, sometimes inherited (Levirate)--was an obligation binding on the woman in the first place. There are practically no reasons to suppose that a man would ever repudiate a wife. As long as the woman was young, her husband tried obviously by all means to keep her, and would display all his personal force and social influence to frustrate any attempt at abduction. When his wife grew old he would, perhaps, secure a new one if possible; in two of the few authentic anecdotes told of the natives a man is represented as possessing one old wife and another quite young (see Grey, _loc. cit._, ii. pp. 350-361, and Curr, _Recollections_, pp. 141-145); there was no reason to repudiate the old one, as she would go on working and providing food for her husband.

In the statements referring to treatment of women, there will be some which show that husbands sometimes displayed a great affection towards their old wives. Moreover, Mr. Mathew's statement (on p. 73) mentions explicitly that marriage bonds lasted usually for life; Roth and Lumholtz inform us that great respect was often paid to old women, consequently it can hardly be supposed that they were cast off by their husbands as useless. We must also remember that usually there was a great disparity of age between the husband and wife. As infant children were often betrothed to mature men, when they reached puberty their husbands were quite old already. Such a woman was kept until the death of her husband, when she fell to the lot of his younger brother or the nearest relative (tribal brother) who wished to keep her.

The practice of the Levirate seems to be very widespread.[155] To us it seems to be in the first place the expression of the idea of complete right of a man over his wife. With his death this right was not extinguished, but only passed to his nearest relative. If she were elderly she would probably become the property of a young boy, as these were usually deprived of wives. Such couples--of which one was quite young and the other more than mature--seem to be very frequent. In these cases marriage lasted till the death of the older party. From this it may be concluded that it was the husband's interest to keep his wife. As to the latter, the only way in which she could have dissolved the marriage bonds appears to be by finding a protector with whom to elope. This undoubtedly occurred from time to time. But then it was not a simple pacific dissolution of marriage, only an act of violence, always pursued with varying vehemence, as shown above.

[155] Howitt, _S.E. Tr._, pp. 193, 224, 227, 236, 248,
Kulin tribe, p. 255; Yuin tribe, p. 266; Kurnai tribe,
_Kam. and Kurn._, p. 204; _Trans. R.S.V._, p. 118;
Wotjobaluk, Wakelbura, Turribul, _Trans. R.S.V._, p. 118;
J. Dawson, p. 27; _J.A.I._, xxiv. p. 170 (Gason on the
Dieri); _Ibid._, p. 194 (Inspector Foelsche on the Pt.
Darwin tribes); Lumholtz, pp. 160, 161; Salvado, p. 278.

From all this we may conclude that marriage was not as a rule an ephemeric occurrence among the Australian natives. In the majority of cases it lasted for life; anyhow, for a long period. To supply here the _experimentum crucis_, let us quote some contradictory instances. Lumholtz says that the women usually change their husbands so often that the children do not generally know their fathers and never grow very attached to them (_loc. cit._, p. 193; comp. below, p. 245). Salvado, speaking of the unhappy lot of an aboriginal beauty, mentions that she has very often to pass from hand to hand, being continually coveted and captured by some new lover who is stronger than her actual possessor. The same is related by Grey. Lumholtz's cursory statement is not explicit enough to enable us to judge whether it were not formed from observations of "civilized blacks." He was only a short time in personal contact with the natives, and what he gathered from the settlers applied probably in the main to blacks corrupted by contact with civilization. Salvado's and Grey's information applies only to exceptional cases when the belle excited special passions by her personal charms. Besides, from all we know, elopement, and still more capture, were not every-day occurrences which would follow each other in the case of the same woman. On the contrary, if an exceptionally desirable woman were taken away by some strong and influential aggressor from her lawful husband, the former would have power enough, personal and social, to retain her, if he had enough to secure her. That elopements occurred and that they were more frequent in the case of a beautiful and useful woman is beyond doubt. Still the picture that we would form from these three statements does not seem to fit the framework of the other facts.

The question as to the length of the normal duration of the Australian marriage is a very important one. And, unhappily, the scanty evidence does not allow of a sufficiently clear and detailed answer. Nevertheless, the few statements that say anything about this matter point to a lifelong duration, or at least to a long period of marriage. At any rate the view often expressed that the primitive pairing family is a highly unstable unit, formed and dissolved very frequently, according to the whim of the moment, without any serious obligation for a longer duration of the common life--this view appears absolutely denied by the Australian evidences. It is impossible to find a direct answer in the evidence to the question whether the general rule was duration for life, or whether, after the wife became useless both sexually and economically, she was repudiated. But our short discussion pointed rather to the first view. Moreover, if marriage were not a serious matter and if it were possible to form and dissolve it without further ado, all its features set forth in this chapter (legality, actual obligations, purchase, etc.) would be absolutely unnecessary; in fact they would be quite unintelligible. In such a low society as the Australian especially, when an institution (here individual marriage) shows so many aspects, even in a rudimentary state, it proves that this institution has a very firm basis. As the act that brought about marriage was usually one of importance and subject to many conditions, so also an attempt to dissolve it was grave in itself and in its consequences.

Now let us summarize our results in a few words. Marriage was brought about as a rule in the form of infant betrothal, which was binding on both parties; it was accompanied by the exchange of relatives; always there were certain mutual obligations. In cases when a man secured a wife without her family's approval (but usually with her own consent), this act was considered a trespass, both in the cases of a girl and of a married woman. The couple was pursued, and unless the elopement was in some way expiated and legalized, both were punished. The idea of legality may be safely applied to Australian marriage in all its forms. For in all there was the necessity of a previous or subsequent sanction of society, and if this were absent society used actually to interfere with the union. The idea of the individuality of marriage was also quite clear to the aboriginal mind and expressed itself in many of the facts connected with the marriage contract. It may be added that it was only in marriage by elopement that the man and woman had a free choice. In all the normal cases neither of them had any voice in the matter at the time of actual marriage.