Page:The New International Encyclopædia 1st ed. v. 13.djvu/108

* MARRIAGE. 88 leave their own kindred and go to dwell with women in anollier group. They become in such cases in many particulars subject to the male kindred of their wives, 'fliis arrangement has been called Beenah marriage, the name given to it in Ceylon where it was first carefully ob- ^ served. Where neighboring groups live on bad terms with one another, frequently engaging in war, captured women may be appropriated by their captors. That wife" capture lia.s been a custom in every part of the world is admitted by all ethnologists, and there is a general agree- ment that the not less widespread custom of wife purchase may have grown out of wife capture. It is not. however, by any means certain that these methods, creative of the marriage relation which Kobertson-Smith, in his work on Kinship and Marringc in Early Arabia, has called Baal marriage, to distinguish it from Beenah mar- riage, have been a more important cause of ex- ogamy than the voluntary going of tlip men of one group to the women of another. The theories which seek to explain exogamy primarily by an avoidance of close interbieeding do not very well agree with the facts as thus far known. The practice of offering women to actual or potential foes as an act of propitiation prob- ably played a large part in the origin of e.x- oganiie custom. The strict rule of e.xogamy is found only where the clan or gens (see Ge.s) is well developed, and it there is a lule of the elan as such, rather than of the horde or tribe. Where tribes are constituted of clans the clan is exogamous, and the tribe as a rule is endoga- mous. That is to say, men may not marry their elanswomen. hut iisually marry women of an- other clan within the same tribe. The forms of sexual relati(mship thus far mentioned, let us now recall, are not necessarily marriages. Any one of them may exist in a com- munity where the only legal union of man and woman, and the only one sanetioncd by religion and public upinion, is monogamy. Any one of them l)ecoines marriage through social sanction. There can be little doubt that religious sanctions consti- tuting marriage are older than the legal. Very suggestive studies of the origins of the religious sanctions have been made by Ernest Crawley, The Mystic Rose: A Sliiily of J'rimitirc Mar- riai/e. To the savage with his belief in imitative and sympathetic magic many thing-; apjx'ar dan- gerous, and he avoids them, making tbem taboo. Crawley finds that in savage connnunities the sexes are usually taboo to one another until by some ceremony of magic the taboo is broken. The initiation ceremonies, whereby b(iys and girls at pidierty are admitted to certain sexual mysteries, are of this nature. They partially break the sexual taboo. The marriage ceremony is the complete and final breaking. I'snally whatever is taboo may safely be tmiched — in the ease of a food it may be eaten — if first it has been approached in simie exceedingly careful way. <ir partaken of in a homnpopatliir' |)ortion. whereby an immunity is established. Conformably to this idea the sexual taboo is broken by such harmless approaches as the joining of hands or the partak- ing of a meal together. Some of the most fre- quent inciilenis of marriage ceremony are thus seen to have had their origin in tiiat savage ningie which was the first great system of social sanctions, long antedating those which were de- veloped into positive law. MARRIAGE. LAW OF MAERIAGE. Historical Developsiext. The law of mar- riage in all Christian countries is derived from the canon law, i.e. the law established by the Christian Church in the Middle Ages. The canon law drew many of its rules regarding marriage from the Roman civil law, and it was influenced, to some extent, by Teutonic ideas; but in many respects its marriage law was novel. In nearly all Christian countries the canonical rules have been seriously modified during the la.st four hundred years. The changes which began with the Protestant Reformation were at first worked out by the Protestant churches and embodied in Protestant ecclesias- tical law; but a tendency to regulate marriage by civil legislation appeared in the sixteenth century, and at the present day, even in those countries which have adhered most closely to the rules of the canon law, marriage is governed by file ordinary civil law. RoMA.v Civil Law. JIarriage could be estab- lished only between Roman citizens, or between Romans and such foreigners as had by treaty the right of intermarrying with Romans (ii/s connubii). Originally, no intermarriage was pos- sible between the gentiles or patricians and the plebeians; and after intermarriage between the orders had been legalized (B.C. 445), gentiles continued to marry, in most cases, within their own onler. and often within their own yens. The marriage of near blood-relations, however, was forbidden; originally, those related in the sixth degree (e.g. children of first cousins) were not alliiwcd to intermarry. In the third century n.c. marriage was permitted between persons re- lated in the fourth degree (e.g. first cousins). The legislation of the Empire varied: at one time (A.D. 49) a man was allowed to marry his brother's daughter, but in the fourth century this was made a capital ofTensc, and in the fifth cen- tuiy file marriage of first cousins was again for a time ])r(ihibited. The relations established by adop- tion ((|.v.) were treated as equivalent to rela- tions of blood-kinship. Affinity was a bar in the direct line only, until the end of the third century, when marriage with a sister-in-law (the brother's widow or his divorced wife, and the de- ceased or divorced wife's sister) was prohibited, .lustinian, tnider the influence of (he Christian Church, forliade marriage between godparents and godchildren on the ground that baptism estab- lished a spiritmil kinship. I'lider the same in- fluence the Theodosian Code had already pro- hibited marriage between Christians and .lews. In (he oldi'r civil law there were three modes of establishing marital power {manus). For the patricians there was a religious ceremony, con- farrriilio; for the plebeians there was fictitious purchase, coi-mplio. and also prescription, iisiis. The aei|uisition of marital jiower by i>rescripf ion inijilieil that the man and the woman were living togetlu'r without any preceding ronfarniitio or coi'mplin: and it is probable that such a union was not originally regarded as a marriage until the man had acquired marital power; but at an early period this informal union was treated as marriage, even (hough the prescription was annmilly interru|i(ed and never became complete. This marriage rovscnsu. i.e. by agreement, was usually accompanied by religious observances, such as the taking of auspices, by a banquet,