MARRIAGE 



57 



prevailed at one time or another nearly everywhere. 

 The known eases in which peoples have depended 

 for their wives upon capture, or have, after a con- 

 tract for marriage, cone through the form of cap- 

 turing the bride (which undoubtedly is a relic of 

 capture), are a most extensive class ; and exogamy 

 gives the explanation of all such cases. Exogamous 

 men having unfriendly neighbours might have to 

 go without wives if they did not capture women 

 from their neighbours ; and when these also were 

 excgamous, we may believe that in time captures 

 would be made easy that reciprocal captures 

 would lie more or less arranged, until at length 

 there were contracts made for exchange or pur- 

 chase of women, and the capture became a form 

 only. As a form capture lias in fact lingered on, 

 in shapes more or less distinct, in the marriage 

 ceremonies of many modern peoples. For an 

 attempt to show tue origin of the law, which 

 had the remarkable effect of interdicting marriage 

 between all men and women of the same blood or 

 kindred, see The English. Historical Review, No. 9, 

 January 1888 ; and The Origin of Exogamy, by 

 J. F. M'Lennan. 



This account of exojjamy takes it to have been 

 in t lif first instance an interdict u|xm wiving only ; 

 but the difficulty is rather to see how men came 

 to abstain from marrying their own women than 

 how, that point reached, they afterwards went on 

 to attaining from them altogether. Of course, it 

 had to be kept in view that the law of exogamy 

 must have been, in fact, a practice which became 

 prevalent and then obligatory, and that, while it 

 was growing up, the practice must have been 

 the same that it was after it had got the force 

 of law, go that, if exogamy at first necessitated 

 a practice of capturing wives, it must have been 

 a practice of capturing wives that became con- 

 solidated as exogamy. Groups composed of a 

 single totem kindred, when exogamous (see 

 FAMILY), could only get wives by capture. And 

 thus it was a practice ( 1 ) of capturing women of 

 stranger groups for wives, and (2) of taking for 

 wives only stranger or foreign i.e. captured 

 women that had to be accounted for. A long-con- 

 tinued scarcity of women ( which infanticide might 

 account for) is suggested as the explanation of a 

 systematic practice of capture, ana the position 

 of men relatively to captured women on the one 

 hand, and their own women (these being scarce) 

 on the other, as the explanation of marriage being 

 ultimately confined to captured or foreign women. 

 What is scarce is of importance, and the position 

 of women among their own kinsmen must have 

 tended to be high, so that something like the Nair 

 relation only could be formed with women by their 

 kinsmen, and that it may be without any con- 

 tract, practically, at anyrate, at the woman's mere 

 choice. The captured woman, on the other hand, 

 would be a slave ; the captors could have her as a 

 subject wife, absolutely on their own terms. It is 

 this sort of connection that was destined to prevail, 

 to become the type of marriage, and it was the lot 

 of the captive, not of the kinswoman. To subject 

 the latter to it would have been an outrage, an 

 offence against her and the kin, indeed, even at 

 first what we call a sin ; and the practice which at 

 first exempted her, when it l>ecame consolidated as 

 custom, excluded her from the condition of wife to 

 any of her kinsmen, with the fueling remaining, 

 and grown intense, that it would be a shocking ana 

 sinful thing for them to have her in that condition. 

 The passage from this to the disuse of the Nair or 

 qnasi-Nair connections l>etween men and their own 

 women which would have continued while marriage 

 was growing up and probably until after con- 

 venience had made capture easy, i.e. more or less 

 of a form, when there would be practically exchange 



of women and then to the interdiction of such 

 connections, time being given, does not appear to 

 present much difficulty. Moreover there are a few 

 cases known in which all marriage between rela- 

 tives being forbidden, other connections seem not 

 to be excluded. This account of exogamy is, at 

 anyrate, founded at every point upon human 

 nature and its observed tendencies. The scarcity 

 of women which is the basis of it is also the basis 

 of the history of marriage which traces that institu- 

 tion back to polyandrous beginnings. 



See works cited at FAMILY, and in addition, Darwin, 

 Descent of Man (1870); Fison and Howitt. Kamilaroi 

 and Kurnai (1880) ; A. Lang, Custom and ^flith (1884) ; 

 Max. Kovalevsky, De I'Oriyine tie la famille et de la 

 fropriite (1890j. 



The solemn and binding nature of marriage is 

 recognised by all civilised peoples ; and, although in 

 various countries there is vast difference in details, 

 both as to legal obligations and public ceremonies, 

 there is much substantial agreement. Thus the 

 restrictions as to age, consanguinity, &c. which 

 prevail in England and other modern countries 

 were nearly the same in the Roman law, where, 

 however, the consent of the paterfamilias was an 

 essential. The canon law regards marriage as a 

 sacrament and not as a contract ; but it recognises 

 the validity of marriage by mere consent, and with- 

 out ecclesiastical sanction, in countries where such 

 marriages are treated as valid. 



England. A promise of marriage, given in ex- 

 change for the promise of the other party, is bind- 

 ing in English law. Performance is not' enforced, 

 but damages may be recovered for breach of promise. 

 It is not necessary that the promise should be proved 

 bv writing. The parties may give evidence, but the 

 plaintiff cannot recover unless his or her testimony 

 is corroborated by some other material evidence. 

 If either party discovers that the other has been 

 guilty of gross misconduct, or of serious misrepre- 

 sentation in regard to his or her circumstances and 

 previous life, breach of promise may be justified. 

 It has been held that a bodily infirmity, rendering 

 it dangerous for the defendant to marry, is no 

 defence to an action. 



Males of fourteen and females of twelve, not 

 subject to any physical or mental incapacity, are 

 permitted to contract marriage ; but for the marriage 

 of a minor the consent of parents or guardians ought 

 previously to be obtained (see INFANT). Persons 

 already married are, of course, incapable of marry- 

 ing again, unless set free by death or by Divorce 

 (q.v.). A man may not marry his mother or other 

 ascendant, his daughter or other descendant, or any 

 woman within the third degree of consanguinity. 

 He is also precluded, by reason of affinity, from 

 marrying any woman related as ascendant, descend- 

 ant, or blood-relation within the third degree to a 

 deceased wife. Since 1835 marriages within the 

 prohibited degrees are wholly void ; it is not neces- 

 sary that proceedings should be taken to annul any 

 such union. The policy of the law which forbids a, 

 man to marry his Deceased Wife's Sister (q.v.) has 

 been much questioned ; and bills for legalising such 

 marriages have several times been passed by the 

 House of Commons. 



Pel-sons intending to marry are required to give 

 notice of their intention ; the forms commonly 

 used for this purpose are banns, and the certificate 

 of a superintendent-registrar. Banns (q.v.) are 

 the subject of a separate article. Instead of 

 giving notice to the parish minister, the parties 

 may apply to a registrar or superintendent- 

 registrar of the district in which they have 

 resided seven days : if they reside in different 

 districts application must be made in both. After 

 twenty-one days the superintendent-registrar issues 

 a certificate for the marriage : one shilling is paid 



