But having left the fixed doctrines of the law governing the relation between the opposite sexes, known as marriage, to enter into a study and analysis of the vulgar errors in connection with this subject-matter, it is high time to bring the chapter to a close.
Of course it was only attempted in this chapter to take a most cursory view of the great subject selected and to present but a few of the many laws and customs that have sprung up among the various peoples of the earth, governing the relation whereby the opposite sexes, in accordance with the law of natural selection, appropriate themselves to one another.
In the ultimate days, when human multiplication has done its work—when man has become so populous that every square foot of ground upon the known earth shall be covered by a man—the law of evolution will no doubt have eradicated many of the present marriage laws and customs, based upon a false public opinion, and the generation of the species will no doubt be conducted along more advanced and scientific lines.
For the next few centuries, however, judging the future by the past, the marriage relation will continue in the same crude and unscientific condition that has controled it for the past five thousand years, so we need not now concern ourselves about any “devastating torrent” of children, but leave this vexed problem for succeeding centuries.
In the meantime, like visionary things, mere motes, the atoms known as human beings, will continue to be brought into the world, as a result of the unnatural laws and customs governing this natural relation,
Tossed into the “giant grasp of Life, like gale-borne dust, or wind-wrung spray,” the son of man will continue to be “the toy, the sport, the waif and stray of passions, error, wrath and fear.”
Empires have perished and nations have risen during the period covered by the foregoing pages. Countless millions of human beings have lived their little lives, with their tincture of lust; tasted, for a brief space, the “joy in an armful of beautiful dust,” as a result of the relation established by the laws and customs treated of in these pages, and then “step by step, perforce, returned” to “couthless youth, wan, white and cold, Lisping again the broken words, till all the tale be fully told.” And thus, for successive ages to come, will the “moving row of magic shadow shapes,” continue to come and go “Round with the sun-illumined-lantern held, in Midnight, by the Master of the Show.”
FOOTNOTES:
[1] Institutiones Justinianus, written 527-529, A. D.
[2] Ringrose “Marriage Laws of the World,” p. 10.
[3] Tylor, “Early History of Mankind;” McLennan’s “Primitive Marriage.”
[4] McLennan’s “Primitive Marriage;” Ringrose, “Marriage Laws of the World,” p. 7.
[5] Tacitus, Germania, c. 18; II. Pollock and Maitland’s History English Law, 364; Johns’ “Babylonian and Assyrian Laws,” etc.
[6] We are told that this rude custom obtains today in “Far Cathay,” Blackwood’s Magazine, July-Dec., 1887, vol. 42, p. 671.
E. J. Woods in his book, “The Wedding Day in All Ages and Countries,” claims that the old Hebrew expression of “taking a wife,” arose from the custom of capture, not common to the Israelites, but common to other primitive peoples. (Vol. I., p. 9.) He quotes Plutarch, as authority for the custom of the Spartans to carry off their brides by capture. (Vol. I., pp. 40, 41.) Refers to the Rape of the Sabines (vol. I., p. 52), the “Institutes” of Menu, as providing one of the forms of marriage by capture, known to the four classes of India (vol. I., p. 124). He claims that “the capture of women prevailed among the aborigines of the Dekkan and in Afghanistan.” (Vol. I., p. 137) He maintains that “In New Zealand and the Fejee and other islands of the Pacific, the custom of capture of women for wives has prevailed from the earliest times of the known history of those places.” (Vol. I., p. 191.) “The form of capture is observed in the marriages of the Kalmucks, the Nogay Tartars, the Mongols, of the Ortous, in Tartary, the Circassians and the people generally of the Caucasus.” (Vol. I., p. 210.) He claims that marriage by capture obtained in Poland, in the sixteenth and seventeenth centuries (vol. I., p. 220), that the seizure of wives by force obtained in Ireland (vol. II., p. 50), so if this record is true, since this custom is found to obtain in these countries so late as recent historical dates, it is not unbelievable that capture was the order of the early barbarous days in our own and other countries.
[7] Fison and Howitt, op. cit. 259; Curr, op. cit. I., 108; Prof. Tylor; McLennan.
[8] Crawley’s “Mystic Rose,” pp. 6, 147.
[9] Genesis, I., 28.
[10] Genesis, II., 22.
[11] XXXIV. Genesis, 8, 9.
[12] Ringrose, “Marriage and Divorce Laws,” p. 10.
[13] First Book of Kings.
[14] Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal History, 784, 785; Euripides, Androm., vv. 173, 180; Tacitus, Germania, c. xvi. I.
[15] Ringrose “Marriage and Divorce Laws,” p. 11.
Monogamy was practiced by the Greeks and Romans as far back as our records reach. Wood’s “Wedding Day in All Ages and Countries,” vol. I., p. 33.
Morganatic, or “left-handed” marriages, are peculiar to Germany. They occur between men of superior and women of inferior rank and are prohibited by the Royal Marriage Law of England.
Ringrose, “Marriage and Divorce Laws of the World;” Wood’s “Wedding Day in All Ages,” vol. II., p. 8.
[16] Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal History, 797; Modestinus in Dig. xxiii, 1, 2.
[17] Ringrose, “Marriage and Divorce Laws,” p. 8. The Twelve Tables fixed the period of three nights, to fix a previous custom, no doubt more uncertain. Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal History, 788.
[18] Ante idem.
[19] III. Essays in Anglo-American Legal History, p. 788.
[20] Tacitus, Ann. xii, 6.
[21] III. Essays in Anglo-American Legal History, 805.
Before the end of the Republic, the confarreatio had practically become obsolete and was regarded as an old world curiosity, although formerly obtaining generally, in all patrician families. (III. Essays in Anglo-American Legal History, p. 789.) The religious ceremony, used at the marriage confarreatio, is described in Wood’s “Wedding Day in All Ages and Countries,” where it is shown that the custom of the “bride-cake” is directly traceable to the cake of wheat or barley, used at this old religious ceremony. (“Wedding Day in All Ages and Countries,” vol. 1, pp. 51, 52, 60, 61, vol. II., p. 224.)
[22] Tacitus, Ann. xii, 5, 7.
[23] III. Essays in Anglo-American Legal History, 807.
[24] Code Justinian, v. 27, 5, 6; Nov. xii, 4; Nov. lxxxix, 8.
[25] Novella, lxxxix.
[26] Novella, xii, 4; lxxxix, 8.
[27] II. Pollock and Maitland’s History English Law, p. 397; III. Essays in Anglo-American Legal History, p. 808x.
[28] Selden, Diss. ad. Fletam, p. 538.
[29] Beaumanoir, c. 18, Sec. 24; II. Pollock and Maitland’s History English Law, p. 398.
The law did not give the marriage any retroactive effect, by reason of this custom of throwing a mantle over the children born prior to wedlock, but the custom was recognized by the law, to the effect of legitimating the children, in the sense that the act of adopting the custom was equivalent to a legal adoption of the children, and in spreading the cloak over the children, the law was willing to also spread its protecting “mantle” over them and thus they became “mantle children,” by force of both the law and this old custom of adoption. Although followed in Germany, France and Normandy, this custom was refused judicial recognition in the reign of Henry II. and Henry III. See Pollock and Maitland’s History English Law, p. 398. But for illustrations of the application of the custom in the countries above named, see Schroder’s “Mantel-Kinder” of Germany, D. R. G. 712.
Discussing the subject of “mantle-children,” in his work “Wedding Day in All Ages,” Wood says: “According to the Scotch law, the marriage of the father and mother legitimatizes all children previously born, however old they may be. An old saying is that ‘all children under the mother’s girdle or apron-string’ at the time of the marriage, are legitimate. In very early days children born before wedlock used to perform a part in the marriage ceremony, by being placed under the veil or mantle of the bride or the pallium of the altar, in which position, they received the nuptial benediction. And instances have occurred in more modern times, where premature offspring have been put under their mother’s apron, and had the string tied over them during her marriage.” (Vol. II., pp. 74, 75.)
[30] Ringrose, “Marriage and Divorce Laws,” p. 8.
[31] Cnut, 74; II. Pollock and Maitland’s History English Law, 365.
[32] Ante idem.
[33] Ringrose, “Marriage and Divorce Laws,” p. 9. We find from the second chapter of the Gospel of St. John that Jesus, himself, attended a marriage in Cana of Galilee, but performed no religious ceremony.
[34] II. Pollock and Maitland’s History English Law, 366.
[35] Ante idem. vol. I., p. 158; Letters of John of Salisbury, i, 124.
[36] Ante idem.
Under the Twelve Tables, enacted B. C. 449, a marriage, in Rome, could be contracted without any formality, by the consent of the parties alone. Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal History, p. 786.
[37] Glanville, vii, 13, 14; Select Civil Pleas, pl. 15, 92, 109.
[38] II. Pollock and Maitland’s History English Law, p. 371.
[39] Compiliato Prima, lib. 4, tit. c. 6.
[40] II. Pollock and Maitland’s History English Law, 372.
[41] Calendarium Genealogicum, i, 57.
[42] Atlantic Monthly, for 1888, vol. 61, pp. 521, 527.
[43] Ante idem.
[44] Atlantic Monthly, for 1888, vol. 61, p. 521.
[45] 26 George II., c. 33.
[46] Bryce, “Marriage and Divorce,” III. Essays in Anglo-American Legal History, p. 815.
The statute of the 26’ year of George II., enacted that wedding banns should be regularly published three successive Sundays in the church of the parish where the parties were for the time residing. This statute was passed to prevent the evils of the “Fleet marriages,” during the year 1616, when the Rector of St. James was suspended and clerical men living within the Rules of the Fleet, solicited passers-by for patronage and celebrated marriage ceremonies in ale-houses and garrets, without the publication of banns, or the existence of marriage licenses. Wood’s “Wedding Day in All Ages,” vol. II., page 235.
[47] 10 Clark and Finley, 534.
[48] Pollock and Maitland, in their History of English Law, say that this erroneous decision may have pleased the Lords, but the opposite holding will be followed by historians of the middles ages. (Vol. II., p. 372.) And James Bryce, in his “Marriage and Divorce,” III. Essays in Anglo-American Legal History, says that this “seems to have been an erroneous” decision. (Vol. III., p. 815.)
[49] Bracton, f. 92, 304, 305; Note Book, pl. 891, 1669.
[50] Bracton, f. 63; Bliss, Calendar of Papal Registers, i, 254; Year Book, 11-12 Edward III., p. 481.
[51] Statute West, II., c. 34; Second Inst. 433.
[52] II. Pollock and Maitland’s History English Law, p. 395.
[53] Rot. Parl. i, 140, A. D. 1302.
[54] Ringrose, “Marriage and Divorce Laws,” p. 9.
If the investigation of Edward J. Wood, in his book, “Wedding Day in All Ages and Countries,” is accurate, the Eimauk, of Caubul, “lend their wives to their guests”; “the Candyans, of the lower and middle classes universally practice polygamy and also lend their wives to their guests”; “the Keiaz, of the Paropamisan mountains of India, lend their wives, as do also the people of Kamul”; the “Mpongmes, an African tribe, lend their wives,” and “the Koryaks, who are polyandrous, and the Chukchi, in the north-east of Siberia, lend out their wives, as do also the Aimaks.”
II. “The Wedding Day in All Ages and Countries,” pp. 97, 146, 151, 167, 237.
[55] Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 116.
[56] Ante idem., p. 116.
[57] Wood’s “Wedding Day in All Ages and Countries,” vol. I., p. 179.
[58] Wood’s “Wedding Day in All Ages and Countries,” vol. I., p. 221.
[59] II. Pollock and Maitland’s History English Law, p. 364; Tacitus Germania c. 18. The old Babylonians and Assyrians held a regular market day at a public place, for the sale of their daughters. (Wood’s “Wedding Day in All Ages and Countries,” vol. I., p. 70.)
The custom of purchasing wives was known to the ancient Greeks and was strongly opposed by Aristotle. The payment of money was frequently the only form of marriage, in ancient Greece. (Wood’s “Wedding Day in All Ages and Countries,” vol. I., pp. 33, 47, 51.)
In Syria every man paid a sum for his wife, proportionate to the rank of her father. (Ante. idem., p. 72.)
The Arabians bought their wives as they did their slaves. (Ante idem., p. 82.)
Burckhardt says that among the Bedouins, of Mount Sinai, marriage is a mere matter of purchase and sale. (Ante idem., p. 85.)
And the same custom obtained among the Mohammedans, Javanese, Ethiopians, Circassians, Ostiacs, a Tarter tribe, Laplanders, the ancient Germans, Romans and French, as well as our early Saxon ancestors. (Wood’s “Wedding Day in All Ages and Countries,” vol. I., pp. 90, 155, 174, 210, 214, and vol. II., pp. 3, 173, 247.)
The custom of purchasing wives is perhaps derived from the old Salic law. It was known to the ancient Jews, as well as the other nations above mentioned and the custom of marriage portions and doweries is no doubt the outgrowth of this old practice. (Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 173.)
[60] Bouvier; Cowel; I. Reeves History English Law, pp. 369, 371. In legal contemplation, a female was in the custody of the Lord paramount, until she reached her majority, and then he was bound to find her a proper marriage. His custody continued until her marriage, even after she became of age and she could only marry with his consent. She was bound to obtain the consent of the Lord, or lose her dower, but it was sufficient, if she had the consent of the chief lord, to marry. The custom was based upon the fealty which the husband owed the lord and since the woman lost her inheritance, if she gave cause of forfeiture, the lord had it in his power to exact anything of her, and hence the custom referred to in the text, an exaction allowed by way of a punishment for the offense of belonging to the frail sex, in an early day. Reeve’s History English Law, vol. I., pp. 370, 371.
Shakespeare makes Cade refer to this old barbarous custom, in 2’ Henry VI., when he says: “... There shall not a maid be married, but she shall pay to me her maidenhead, ere they have it.” (Act IV., Scene VII.; White’s “Law in Shakespeare,” Sec. 299, p. 326).
[61] Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 16.
[62] Genesis, XXXIV., 12.
[63] Smith’s Dict. Greek and Roman Antiquities.
[64] In the first known code of laws ever written, so far as our history goes, in the old code of Hammurabi, King of Babylon, who reigned from 2285 to 2242, B. C., we find that doweries and marriage portions were spoken of, just as in modern statutes, and it was provided that if a childless woman should be returned to her father, he should return the dowry, and if he did not the husband could deduct all the dowry from the marriage portion and then return the marriage portion, the house of her father.
Code Hammurabi, Secs. 163, 164; Johns’ “Oldest Code of Laws,” pp. 32, 33; Johns’ “Babylonian and Assyrian Laws,” etc.
[65] Wood’s “Wedding Day in All Ages and Countries,” vol. II., p. 17.
[66] Ante idem., p. 18.
[67] Genesis, XXXIV., 12.
[68] Ringrose “Marriage and Divorce Laws of the World.”
[69] Selden.
[70] Coke, Littleton, 31.
[71] Wood’s “Wedding Day in All Ages,” vol. II., p. 16.
Shakespeare makes frequent reference to the marriage custom of giving a dowry to the bride, in his various plays. Thus, in “Love’s Labour’s Lost,” (Act II., Scene I), Boyet, in speaking to the Princess, refers to Aquitaine as “a dowry for a queen;” King John tells Phillip of France, that if his son shall love his daughter, “Her dowry shall weigh equal with a queen.” (King John, Act II., Scene I.) Petruchio tells Katherine, in “Taming of the Shrew”: “Pet. Your father hath consented that you shall be my wife; your dowry ’greed on; and will you, nil you, I will marry you.” (Act II., Scene I.) Gloster, in 1’ Henry VI., speaking of the proffer of his daughter to the King, by the Earl of Armagnac, refers to the “large and sumptuous dowry.” (Act V., Scene I.) And the poor Lear, is made to ask the duke of Burgundy, in discarding his daughter, Cordelia: “What, in the least, will you require in present dower with her?” (Act I., Scene I.)
White’s “Law in Shakespeare,” Sec. 66, pp. 95, 97.
[72] Wood’s “Wedding Day in All Ages,” vol. I., p. 25.
[73] Genesis, XXIV., 22, 53.
[74] Wood’s “Wedding Day in All Ages,” vol. II., p. 131.
[75] Ante idem. 130.
[76] Ante idem. 133.
[77] During the reign of George I. and George II., the wedding ring was placed on the usual finger at marriage and then transferred to the thumb. Wood’s “Wedding Day in All Ages,” vol. II., p. 134.
[78] Ante idem. p. 135.
[79] Wood’s “Wedding Day in All Ages,” vol. I., p. 94.
The Quakers and Mormons reject the wedding ring, because of its heathenish origin. Wood’s “Wedding Day in All Ages,” vol. II., p. 135.
The wedding rings of St. Louis, of France; of Margaret, daughter of the Earl of Warwick; of the wife of Duke John, of Sweden; of Martin Luther and Catherine Von Bora, his wife; the ring given by Henry VIII. to Anne of Cleves; that given by Phillip, to Queen Mary, and by Lord Darnley, to Mary, Queen of Scots, are described in Wood’s “Wedding Day in All Ages,” vol. II., pp. 145, 149.
Chaucer’s reference to the wedding ring, in his “Troilus and Cressida”; Shakespeare’s mention of the gemmal ring, in “Midsummer’s Night’s Dream”; and his use of the ring in “Two Gentlemen of Verona,” “Twelfth Night” and “Merchant of Venice,” with many traditions of the wedding ring, will be found interestingly presented in Wood’s “Wedding Day in All Ages,” vol. II., pp. 129, 149.
The custom of placing the ring upon the fourth finger of the left hand, according to the opinion of a writer in the British Apollo, in 1708, dates from the discovery of the convenience of the left hand for such ornament because less employed than the right and the fourth finger, less than others, was needed in ordinary use. See Knowlton’s “Origin of Wedding Superstitions;” Finck’s “Primitive Love and Love Stories.”
[80] Wood’s “Wedding Day in All Ages,” vol. I., pp. 94, 95.
[81] Ante idem., vol. I., pp. 128, 133, 156; vol. II., pp. 44, 224.
[82] Deuteronomy, XXV., 5, 10.
[83] Ruth, IV., 7, 8.
[84] Boston Trans. Aug. 13, 1910; Wood’s “Wedding Day in All Ages,” vol. I., p. 16; Hutchinson’s “Marriage Customs in Many Lands.”
[85] Ante idem.
Wood quotes Michelet, in his “Life of Luther,” to show that the great Reformer used the shoe at a marriage ceremony. Wood’s “Wedding Day in All Ages,” vol. I., p. 16.
[86] Wood’s “Wedding Day in All Ages,” vol. II., p. 218.
[87] Ante idem., p. 216.
[88] Ante. idem., pp. 215, 221.
Referring to the custom of stocking-throwing, Rowe, in his “Happy Village,” in 1796 says:
And in the “Collier’s Wedding,” we read:
[89] See Article on “Ancient Marriage Customs,” in Uncle Remus’ Home Magazine, June, 1912.
[90] “Matrimonial Curiosities,” Chambers Journal, vol. 48, pt. 2, p. 813.
[91] Ante idem.
[92] Ante idem.
[93] “Courtship and Marriage Customs,” p. 79.
[94] Earle’s “Customs in Old New England,” p. 79.
[95] History, Wells and Kennebunkport.
[96] “Along New England Roads,” p. 25.
[97] “Customs in Old New England,” p. 78.
[98] Earle’s “Customs in Old New England,” p. 79.
[99] Chambers Journal, vol. 48, pt. 2, July-Dec., 1871, p. 812.
Discussing the subject of “gallows-matches,” Wood, in his “Wedding Day in All Ages,” says: “Formerly was current a vulgar notion that if a woman married a condemned man under the gallows, she would thereby save him from execution. Certainly this exemption had a quasi-legal existence in France in the fifteenth century, as there are instances of it in the annals of that country.” (Vol. 2, p. 25.)
[100] Chambers Journal, vol. 48, pt. 2, 812.
[101] Ante idem.
[102] Ante idem.
[103] Ante idem.
[104] Roxburghe Ballads.