[1283] Grimm, _Rechts-Alt._, 436.

[1284] Furnival, _Child-marriages_, XXVII, XXXIX, XL.

[1285] Hauri, _Islam_, 131.

[1286] _Modern Egyptians_, I, 268, 466.

[1287] JAI, X, 138.

[1288] Rubruck, _Eastern Parts_, 78.

[1289] Kohler and Peiser, II, 9.

[1290] Holtzmann, _Ind. Sagen_, I, 258.

[1291] Zimmer, _Altind. Leben_, 328-331.

[1292] V, 157, 161-164.

[1293] Jolly, _Stellung der Frauen_, 448.

[1294] _Nineteenth Cent._, XLV, 769.

[1295] Wilkins, _Modern Hinduism_, 391.

[1296] _Ibid._, 365.

[1297] _Brahmanism and Hinduism_, 472.

[1298] JASB, VI, 119.

[1299] Cf. sec. 376.

[1300] JASB, VI, 376.

[1301] Jolly, _Recht und Sitte_, 61.

[1302] JAI, XII, 290.

[1303] _Ethnol. App. Census of India_, 1901, 74-75.

[1304] Keller, _Homeric Society_, 227; _Iliad_, XXII, 477; V, 389.

[1305] Diodorus Siculus, XII, 12.

[1306] Becker-Hermann, _Charikles_, III, 289.

[1307] Lecky, _Eur. Morals_, II, 316.

[1308] Friedlander, _Sittengesch._, I, 411.

[1309] Athenagoras, _Apolog._, 28; _Constit. Apost._, III, 2.

[1310] Lea, _Sacerd. Celibacy_, 35.

[1311] Wellhausen, _Ehe bei den Arabern_, 433, 455.

[1312] Jolly, _Seconds Mariages_, 194.

[1313] _Ibid._, 177.

[1314] _Ibid._, 193.

[1315] Lea, _Sacerd. Celib._, 283.

[1316] Jolly, _Seconds Mariages_, 193.

[1317] Tacitus, _Germ._, 19.

[1318] Stammler, _Stellung der Frauen im alten Deutschen Recht_, 37.

[1319] _Dialog. of the Exchequer, B_ 2, XVIII.

[1320] Pike, _Crime in England_, I, 428.

[1321] Jolly, _Seconds Mariages_, 202.

[1322] Jolly, _Recht und Sitte der Indo-Arier_, 59; Hopkins, _Religions of India_, 541; Kohler, _Urgesch. der Ehe_, 28.

[1323] Hearn, _Japan_, 393 ff.

CHAPTER X

THE MARRIAGE INSTITUTION

Mores lead to institutions.--Aleatory interest in marriage and the function of religion.--Chaldean demonism and marriage.-- Hebrew marriage before the exile.--Jewish marriage after the exile.--Marriage in the New Testament.--The merit of celibacy.--Marriage in early Christianity.--Marriage in the Roman law.--Roman "free marriage."--Free marriage.--Transition from Roman to Christian marriage.--Ancient German marriage.-- Early mediaeval usage.--The place of religious ceremony.--The mode of expressing consensus.--Marriage at the church door.-- Marriage in Germany, twelfth century.--The canon law.--Mediaeval marriage.--Conflict of the mores with the church programme.-- Church marriage; concubines.--The church elevated the notion of marriage.--The decrees of Trent about marriage.--Puritan marriage.

+413. Mores lead to institutions.+ We have seen in Chapter IX that the sex mores control and fashion all the relations of the sexes to each other. Marriage, under any of its forms (polygamy, polyandry, etc.), is only a crystallization of a set of these mores into an imperfect institution, because the relation of a woman, or of women, to a husband becomes more or less enduring, and so the mores which constitute the relation get a stability and uniformity of coherence which makes a definable whole, covering a great field of human interest and life policy. It is not a complete specimen of an institution (sec. 63). It lacks structure or material element of any kind, but the parties are held to make good the understandings and cooperative acts which the mores prescribe at all the proper conjunctures, and thus there arises a system of acts and behavior such as every institution requires. In civilized society this cluster of mores, constituting a relationship by which needs are satisfied and sentiments are cherished, is given a positive form by legislation, and the rights and duties which grow out of the relationship get positive definition and adequate guarantees.

This case is, therefore, a very favorable one for studying the operation of the mores in the making of institutions, or preparing them for the final work of the lawmaker.

+414. Aleatory interest in marriage and the function of religion.+ The positive history of marriage shows that it has been always made and developed by the mores, that is to say, by the effort of adjustment to conditions in such a way that self-realization may be better effected and that more satisfaction may be won from life. The aleatory element (sec. 6) in marriage is very large. Marriage is an interest of every human being who reaches maturity, and it affects the weal and woe of each in every detail of life. Passing by the forms of the institution in which the wife is under stern discipline and those in which the man can at once exert his will to modify the institution, it may be said of all freer forms that there is no way in which to guarantee the happiness of either party save in reliance on the character of the other. This is a most uncertain guarantee. In the unfolding of life, under ever new vicissitudes, it appears that it is a play of luck, or fate, what will come to any one out of the marital union with another. Women have been more at the sport of this element of luck, but men have cared much more for their smaller risk in it. Therefore, at all stages of civilization, devices to determine luck have been connected with weddings, and in many cases acts of divination have been employed to find out what the future had in store for the pair. Marriage is a domestic and family affair. The wedding is public and invites the cooperation of friends and neighbors.

Wedlock is a mode of life which is private and exclusive. The civil authority, after it is differentiated and integrated, takes cognizance and control of the rights of children, legitimacy, inheritance, and property. Religion, in its connection with marriage, takes its function from the aleatory interest. It is not of the essence of marriage. It "blesses" it, or secures the favor of the higher powers who distribute good and bad fortune. In a very few cases amongst savage tribes religious ceremonies "make" a marriage; that is, they give to it (to the authority of the husband) a superstitious sanction which insures permanence and coercion as long as the husband wants permanence and coercion. These cases are rare. The notion that a religious ceremony makes a marriage, and defines it, had no currency until the sixteenth Christian century.

+415. Chaldean demonism and marriage.+ Chaldean demonism affected wedding ceremonies. The belief was that demons found their opportunities at great crises in life, when interest and excitement ran high. Then the demons rejoiced to exert their malignity on man to produce frustration and disappointment. Cases are not rare in which the consummation of marriage was deferred, in barbarism and half-civilization, to ward off this interference of demons. The Chaldean groom's companions led him to the bride, and he repeated to her the formulas of marriage: "I am the son of a prince. Silver and gold shall fill thy bosom. Thou shalt be my wife and I thy husband. As a tree bears abundant fruit, so great shall be the abundance which I will pour out on this woman." A priest blessed them and said: "All which is bad in this man do ye [gods] put far away, and give him strength. Do thou, man, give thy virility. Let this woman be thy spouse. Do thou, woman, give thy womanhood, and let this man be thy husband." The next morning a ritual was used to drive away evil spirits.[1324]