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BY GUSTAVE RAVENE II. In the first stages of the existence of the human race, man lived in hordes, differing but little, if at all, from the communities formed by animals. In these hordes the social institutions of marriage and family, as we understand them, had no existence. The members of the horde were blood relations, and the union of the sexes were “communal,” that is, the sexual intercourse was to a great extent promiscuous, regulated merely by mu tual desire and the right of the stronger. Yet, an “absolute” promiscuity as as sumed by Morgan, M’Lennan and Bac hofen, probably never existed. There must have been other social forces, be sides the mere right of the stronger. A society so organized could not possibly exist, it “would have broken up in a week, while in fact, savage societies last for ages.”” Observations of savage socie ties and of the life of the superior ani mals lead to the conclusion that promis cuity was checked by various conditions, especially the strong feeling of jealousy on the part of the male, and it is ex tremely improbable that man in his first attempt at organization of society, should have fallen below the level of sexual in tercourse existing in the lower animal world. At the present time we know of no race so low in the scale of culture as to occupy the level of the most “Primitive Man,” the “Armensch” of the German Anthropologist. Among the lowest types of man now found there exists an un written social code, a system of rules governing the union of the sexes. No existing type of man, however primitive, lives under the system of “promiscuous” marriage, and the statements of Herod otus, Dion Cassius, Strabo, Plinius and Xenophon, that in their days “absolute” promiscuous sexual intercourse prevailed among various nations, have to be taken cum grano sales. It appears, however, from various cus toms, that among several white races, a system of communal marriage formerly obtained. The annual prostitution of Babylonian women in the temple of the goddess Mylitta, a similar custom among the girls of Cyprus, and allied usages ex isting in the Balearic Islands, in ancient Carthage and Greece, and modern India, are instances. The maternal instinct which secures the protection of the offspring, eventually led to that type of the familly, called the matriarcate, in which descent was traced through the mother. No __ polititical supremacy of woman is to be implied from this organization. Considering the position of woman among savages, it is extremely unlikely that she ever asserted any powers over her lord and master. Whatever may have been the political position of woman, the custom of femi nine filiation is an established fact. It is to-day a custom largely prevailing among various races, and we are in formed by Herodotus that it was the family organization of the Lycians. Ac cording to a passage from Varro—quoted by St. Augustine—it was the custom in ancient Athens for children to take their name from their mother. Recent re searches by Dargan show that the matriarcate was the basis of the Aryan family. The constant warfare between the different hordes or tribes must have led to the capture of women from the neigh boring tribes. The necessities of life, the difficulty of support, also gave rise to a practice very common among savages, of killing infants, especially girls, and the consequent scarcity of women con tributed in a great measure to the custom ofe wife capture. On this practice the in stitution of “marrying out of the tribe” or Exogamy is founded.. Exogamy is very common at the present time, being found in many parts of the globe, and the many quaint customs still observed among civilized races lead to the conclu sion that at some period in their history, they practiced wife capture. The laws of Menne mention wife cap ture, the rape of the Sabines is an ex ample, and the Germans stole women. Olaus Magness informs us that they waged wars for the capture of women: “propter raptas virgines, .”’ In the course of time the forcible cap ture became a feigned rape, and in place of the wars which generally ensued to avenge the insult, compensation in prop erty, or wife buying, became the rule. Such is the common practice among the majority of savage and barbarian tribes, and its survival is seen, together with many other customs originating in wife capture, in many of our present laws and institutions, one of which the action for seduction, by the parent, “per quod ser vitium amisit,” is an instance familiar to the practicing lawyer. All these forms of marriage permitted a plurality of wives, and the organization called the Patriarchate placed no ob stacles in the way of polygamous mar riages. Monogamy is a later stage in the history of the family. It is the result of necessity and a conception of a settled family. As the numbers of men and women in the community approached payee, the possession of several wives was only within the reach of the rich and powerful. The consequences of wife capture and wife purchase were the supremacy of man and the slavery of woman. The effect of monogamy was to elevate the social level of the wife. She acquired individual and proprietary rights and the Roman law accorded to married women privileges, of which later legal systems have deprived her, and which she has never regained. The religious condition of the age also tended greatly to the or ganization of a settled family, but the Christian religion, while it elevated the ethical aspect of marriage, reduced woman to a condition of servitude, from which the higher civilization of a modern age has but partially succeeded in rescu ing her. a contemplation of law, marriage is a civil contract, and viewed from the con tractual standpoint, no formalities of any kind are necessary to constitute a_ bind ing contract of marriage, but many look ing upon marriage from a religious point of view and influenced by tradition and custom, has followed a_ diversity of usages and ceremonies in the celebration of marriage..._Many of these ceremonies have their origin in the ancient forms of marriage by purchase and capture. At the time of the “Sachsenspiege” the maxim “consensus facit nuptias” was generally recognized and followed, but local custom prescribed various forms of celebration. The Sachsenspiegel does not mention any particular ceremony, merely states that by cohabitation the wife acquires her rights. “She is his companion and steps into his rights when she enters his bed.” Among the many ceremonies in use among the Germans were the gift of a ring, for years the recognized mode of betrothal, the belting mentioned by Tacitus, and the Anglo-Saxon custom of tying the hands of the parties with cords or ribbons, a proceeding known as “maeden fettan.’’ It was also customary to place a shoe on the bridal bed, and for the bride to step into the groom’s shoes, a usage on which the throwing of an old shoe after a newly married couple is founded. The custom of buying wives in its various forms, prevailed in the older period of the German law. The price was generally equal to the weregeld of of the woman,the amount paid being: Among the Anglo-Saxons, 60 shillings; the Alamanni paid 40 shillings; the Salic Franks placed the amount at 624 shil lings; the Ripuarians at 50 shillings, and the Saxons assessed the value of a wire at 300 shillings. The name given to the purchase money was “arrha” or “pre tium,”’ the Anglo-Saxons calling it “wireme,” “scat,” ‘meta,’ ““messie.” The Sachsenspiegel has no reference to the old form of buying wires. The buying has given way to the settlement— on the wife herself—of personal prop erty (fahrende habe). Such a settlement was known as the Morgengahe, Morgen gifu, taking its name from the circum stance of the donation being made on the first morning after the consummation of the marriage. The combination of the Morgengahe with the witeme (neotuma), brought about by clerical influence, introduced the dos ad ostium ecclesiz. The provision known as dos or witeme was recognized by the Sachsenspiegel under the name Leibzucht, Leibgeding. The settlement was made at the time of marriage, and if the wife had no guar dian, the court would appoint one to act for her and hold the property in guar dianship. The wife’s interest in her husband's property was generally held to be liable for his debts, and her separate property could be made subject to such liens, pro vided the wife consented. The influence of the Roman Law is traceable in at least one passage of the Sachsenspiegel, referring to gifts between husband and wife. While such gifts were valid in more ancient times, they were declared void by the Sachsen spiegel, and the same rule borrowed from the Roman Law is found in the English law. Bracton states that such gifts were void, citing three Cases in sup port of his statement, The writer of Fleta says that they were illegal, and it was not until the year 1712 that the Court of Chancery in the case of Mitchell vs. Mitchell held gifts between husband and wife,without the intervention of a trustee to be good in equity. In the case of Breton vs. Woolsen (decided in 1881), Hall V. C. commenting on the old law, said: “It is a monstrous state of the law which prevents effect being given to such a gift.”
Newspaper Details
The Daily Record
Baltimore, Maryland, US
Tue, Jan 13, 1891
Page 3
Full Page
Clipped by
Ciarn D.
USA 08 Jun 2026
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