Marriage broker

“ Is marriage not now, at bottom, an establishment for the support of woman? Is not maintenance the price which the husband pays for the appendage to himself? And because the supply generally exceeds the demand—that is, the effective demand—has woman not often to accept the offer of the first man who seems able to perform this pecuniary obligation? ”

“ The marriage, if it became an economic partnership, would be so by mutual consent and arrangement, and would thus no longer be a one-sided contract, legally defined, in which all the rights were on the side of the husband, but compensated in too many cases by unjust privileges on that of the wife. At the same time, the temptation to marry for economic security or ease would be lessened. ”

“ Of old, the modes of getting a wife were the same as those of acquiring any other species of property, and they are not materially changed at the present time. It is enough that the man and woman say to each other, ‘From this time we are married,’ or, ‘You are now my wife,’ or, ‘my husband,’ as the case may be. The mutual consent is all that is necessary. In fact, you may contract marriage as you contract to lend a sum of money, or to buy the merest trifle. ”

“ A man who insists on divorcing his wife not only has to give her half his effects, but to repay the sum paid as the marriage portion. It appears that polygamy is rare, except among the chiefs.
Marriage is attended with elaborate arrangements among these people, and the female friends of both parties usually make the "engagement," after which the bridegroom's friends go to the bride's father, talk over the dowry, make presents, and pay the marriage expenses. Commonly, especially among the higher classes, the bridegroom does not see the lady's face until the marriage day. ”

“ Precisely the same is true, in a less degree, of wife-stealing, particularly of the systematic capture of women. It implies for one thing an appreciation of the economic value of woman's services which is wholly inconsistent with most [202] primitive conditions. There are strong indications that in the beginning of distinctly human history marriage arose in the mutual consent of the parties. Nay, to discover the prototype of the primitive matrimonial contract it may be necessary to cross the boundary-line which separates man from the lower animals. ”

“ But if, after the marriage contract has been negotiated by a third party, the man who seeks marriage should repent of the bargain and seek to marry another woman, he loses the earnest-money that he has given, even if he has had no intercourse with the former; because when they commence negotiations for the marriage they begin to give the dowry. ”

“ It is the only declaration of will, the only ground of legitimate marriage, which is not created, but merely consummated at the gifta. [893] Those who are bound by contract are in respect to third parties practically husband and wife. [894] The ground of the husband's title is the betrothal and not the nuptials. Either party can bring action in the courts for breach of the contract. The bridegroom cannot compel the delivery of the bride, but he may sue for the recovery of the weotuma and an additional fine. ”

“ Although under the system of marriage by188 sale or contract a woman has a voice in the selection of her husband, and although she can count on her kinsmen to protect her against abuse, still, practically, the contract brings the wife under the same condition as a captured wife; she follows her husband to his home, where, as a dependent, he exercises control over her person and her children. ”

“ Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. ”

“ The very fact that any plan was devised to afford a legal and decent mode of entering into the marriage contract, certainly implies that the moral sense of the community revolted at general concubinage. ”

“ As a rule, the woman dowers the husband with her youth, her beauty, her love—with all she has; and from this contract certainly the husband should never be released, unless the wife has broken the conditions of that contract. Divorces should be granted publicly, precisely as the marriage should be solemnized. Every marriage should be known, and there should be witnesses, to the end that the character of the contract entered into should be understood ”

“ A reminiscence of the ancient custom of marriage by purchase survived in the price paid by the bridegroom to the relatives of the bride; all clandestine alliances were considered invalid; a woman could sue, and be sued, without joining with her husband ”

“ But we think this latter practice, which in some quarters has been regarded as a survival from a matriarchal organisation of society, is a recently introduced custom, which has come rapidly into favour as a means by which the bridegroom and his friends avoid a part of the expense involved in the older form of marriage. For the residence for a period of years of the young couple in the house and room of the wife's parents is made a part of the marriage contract. If the bride is the only child of a chief, her husband may remain permanently in her home and succeed her father as chief. ”

“ Among the Seri the woman has much liberty of choice: "certainly she holds the power of veto, ostensible if not actual." During the preliminary courtship she occupies a position of great dignity. "When all parties concerned are eventually satisfied a probationary marriage is arranged, and the groom leaves his clan and attaches himself to that of his bride. Two essential conditions—one of material character and the other moral—are involved in this probationary union; in the first place the groom must become the provider for, and the protector of, the entire family of the bride." ”

“ There cannot be the slightest doubt that the difficulty, the confusion, the inconsistency, and the flagrant indecency which surround divorce and the methods of securing it are due solely and entirely to the subtle persistence of traditions based, on the one hand, on the Canon law doctrines of the indissolubility of marriage and the sin of sexual intercourse outside marriage, and, on the other hand, on the primitive idea of marriage as a contract which economically subordinates the wife to the husband and renders her person, or at all events her guardianship, his property. ”

“ It is still at work revising the marriage laws. The task is not completed. But there are important sections of the new code ready: they have taken the "obey" out of the marriage service; they have stipulated for divorce by mutual consent, that is by request of the parties interested, who are to be let out of wedlock as simply and as easily as they were let in. ”

“ When the husband has left the place of conjugal domicile without making any arrangements for his wife’s support, the judge is authorized by law to make an order that her maintenance shall be paid out of any fund or property which the husband may have left in deposit or in trust, or invested in any trade or business. ”

“ A married woman can own nothing, can lose nothing, can hardly be guilty of a misdemeanor, if, by construction of law, it may be imputed to her husband; whereas, in the countries of the civil law, marriage is like a commercial partnership, a firm in which the interests of husband and wife are the same, respecting the joint-stock or property. ”

“ If there be no marriage contract to the contrary, the husband is the legal administrator of all the property belonging to the married couple, including that of the wife, as well as that which they possessed at marriage as of that subsequently acquired by them in their own right. ”

“ Such a contract has nothing in the least to do with the real marriage; on the contrary, it appertains to a time when the marriage has ceased, and regulates in that case the external affairs of the once-married couple. But as long as the marriage continues, it has as little efficacy as there is need for it; for marriage is love in action, and that presupposes complete harmony in all dispositions, and complete community of all interests. ”

“ This, however, is very rarely done, as the women are the great upholders of polygamy, which not only provides for their surplus numbers but gives greater importance to the first wife, who is thus practically the head of several households. Marriage is looked upon as primarily a civil contract, and, subject to certain conditions and to a proper provision for children, is dissoluble at the will of both contracting parties, the divorce, or 'unloosing', being formally and ceremoniously accomplished by going through certain portions of the marriage ceremony backwards. ”

“ Marriage is considered a civil contract, which may be solemnized before a qualified clergyman of any sect, or a judge, justice of the peace or other magistrate.
A married woman has the same right of buying, selling, owning and controlling any kind of real or personal property as a single woman. She has also the fullest right to make any lawful contract without adding her husband as a party. She may sue and be sued as if she were a single woman or a man. ”

“ Among a number of peoples she is free to marry again, if she likes, even when she is responsible for the separation. [815] Generally, however, her freedom is restricted in this regard; and this is especially apt to be the case where wife-purchase exists; for then the legal rights of the husband in the woman are by no means extinguished by the dissolution of marriage. Her status as a wife must thus be distinguished from her position as property or as the object of contract. ”

“ The law concerning divorce, however, would seem to lack that fairness which characterizes many other regulations of social life. A man might divorce his wife by the payment of a pecuniary consideration; but if a woman undertook the initiative in annulling the marriage contract, she might be condemned to death by drowning. ”

“ Having now considered its relation to capture, let us next notice the significance of wife-purchase as a social institution.
The custom of giving a compensation for a bride, though not universal, exists or has existed among a vast number of peoples in various stages of progress; and it often survives [185] as a mere symbol in the marriage ceremony. Kulischer, indeed, declares that actual wife-purchase can now be discovered only among a few savage races. ”

“ Another peculiarity in connexion with marriage is that an agreement, to the effect that either husband or wife may divorce the other whenever he or she has become averse to continuing as the other’s partner, is acknowledged as a legitimate condition of a matrimonial contract. ”

“ If marriage were really placed on the basis of a contract, not only would that contract be voidable at the will of the two parties concerned, without any question of delinquency coming into the question, but those parties would at the outset themselves determine the conditions regulating the contract. But nothing could be more unlike our actual marriage. The two parties are bidden to accept each other as husband and wife; they are not invited to make a contract ”

“ Upon the granting of a divorce decree in the wife’s favour the court has power to grant the wife permanent alimony, the amount of which depends on all such facts as the husband’s fortune and income, the wife’s income and needs and the social status of the parties.
If there are children under full age, the issue of the marriage, the court will in the exercise of its discretion make such order concerning their custody, support and education as the ends of justice may require. ”

“ Sometimes self-betrothal and contract by the guardian are found side by side. Such is the case in Rotuma; and among the Turks of middle Asia the conventional marriage, in which the couple are contracted by their fathers in childhood, is found in connection with natural marriage which rests upon the vows of the betrothed. [679]
IV. PRIMITIVE FREE MARRIAGE SURVIVING WITH PURCHASE, AND THE DECAY OF THE PURCHASE-CONTRACT
It is commonly assumed that where marriage by purchase exists woman must necessarily be in an abject condition. ”

“ Should the wife fail to establish her case against her husband, the cost of the marriage ceremony, a large sum usually, is refunded by her relatives. The law does not force a wife to cohabit with her husband ”

“ The Kafir maiden who brings a good price from her suitor is not therefore necessarily a "chattel" any more than is the daughter whose labor the civilized parent lets out for hire. [705] A high price may be looked upon also as a proper recognition of the rank or of the mental and physical attractions of the bride. [706] Furthermore, it is significant that actual bride-purchase may [217] coexist with advanced ethical and religious conceptions of the marriage state. ”

“ The wife is bound to live with the husband wherever he may fix his residence.
A wife cannot, without her husband’s permission, go to law, make any contract, or acquire goods, nor alienate or pledge goods without such permission. The wife may, of course, in certain cases, such as divorce, acquire judicial authorization for prosecuting or defending a suit in the courts. ”

“ In the Indian Archipelago they are by no means rare; the husband for instance, in conformity with an agreement with his parents-in-law, declares immediately after the marriage ceremony, that his wife may regard herself as divorced by him if he marries a second, or gives her no house of her own to live in, etc. Here again, as might be expected, the great majority of bridegrooms require the assistance of the official who concludes the marriage contract for the proper expression of the formula; he dictates the words one after another to the bridegroom. ”