CHAPTER XVIII.

LEGAL MARRIAGE.
By Legal Marriage is meant marriage in conformity to civil laws and legislative enactments of man, from time to time. The purpose of this chapter is two-fold, viz.:
(1) To briefly trace the laws of marriage as they are re- corded in the past customs, and upon the statute books of civilized nations.
(2) To show that such regulation is a necessary and natural accompaniment of the higher evolution of man.
The limitations of this work forbid more than the briefest outline of the history of marriage. That outline, however, will enable the reader to trace for himself the rise of the marriage relation from its lowest rational condition to the nearest ap- proach to the perfect relation that has been made under civil codes.
In presenting this brief review of marriage customs and codes, the writer relies largely upon an authority of the modern school who has already been referred to. M. Letorneau, in the "Evolu- tion of Marriage," has undoubtedly presented that subject in fuller detail and with greater accuracy than any other modern student and investigator. The very first question with which that eminent writer deals is the question of promiscuity, as a primitive sex practice. As will be readily seen, almost insur- mountable difficulties surround this subject. Exact data con- cerning prehistoric conditions are out of the question. The best that science may do is to compare traditional report and observe the actual sex conditions among living tribes of low develop- ment.
3So
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In drawing his final conclusions from meager historical fact and the varied present customs of savages, M. Letorneau takes into consideration another range of fact not usually considered in this connection. He holds that, at its base, human and ani- mal marriage are the same in principle. With animal sex rela- tions as a basis for observation, he draws the following general conclusions as to primitive human marriage:*
"Do we thus mean to say that there is no example of pro- "miscuity in human societies, primitive or not? Far from it. "It would be impossible to affirm this without neglecting a large "number of facts observed in antiquity or observable in our own "day. But we are warranted in believing that a very inferior "stage of promiscuity has never been other than exceptional in "humanity."
The scientist next makes a statement which the reader is called to particularly note, when he adds:f "If it has existed "here and there, it is that by the very reason of the relative "superiority of his intelligence, man is less rigorously subject to "general laws, and that he knows sometimes how to modify or "infringe them; there is more room for caprice in his existence "than in the life of animals."
The author of this statement did not realize its deep signifi- cance. He did not know that these words are clearly corrobora- tive of Natural Science which declares that sex is an intelligent spiritual principle. It will be recalled, that M. Letorneau notes a law of individual preference when he is dealing wth animal marriage. This law, he claims, discourages promiscuity and es- tablishes polygamy and monogamy as the common form of marriage, even in the animal kingdom. In this instance his general law is the same law of individual preference. He does not, however, attempt to explain this general law, nor to identify it with the law he had previously observed. In fact, neither here nor elsewhere does he demonstrate the principle involved in that
*"The Evolution of Marriage," p. 38. tSame, p. 38.
HARMONICS OF EVOLUTION.
general law of individual preference which maintains harmony in the animal sex relations.
The scientist is right. There is such a law. That general law which physical science perceives but does not identify, is the universal law of polarity or affinity. Again he is right when he attributes man's infringement of that law to his superior, inde- pendent, rational powers. Man possesses, not merely the capac- ity to form an individual choice, but he possesses the rational in- telligence to execute his .Will and Desires. Thus, once more physical science supports the position of the higher science. We may, therefore, from the standpoint of both schools of science, conclude that promiscuity has never been generally practiced in the human family.
This brings us to the consideration of those rational steps by and through which man himself has sought to properly estab- lish the sex relation.
The limitations of this work forbid more than the bare out- line of the history of legal marriage. In that meager outline no more can be done than to indicate the several distinct steps that have been taken between the chaotic conditions of primitive marriage, and the civil code under which the best developed live. The legal institution of marriage gradually developed out of what appears to us as mental and moral chaos. Human society, in its primitive stages, displays apparently nothing more than the fierce ambition of the male half and the extreme stupidity of the female half. In reality, however, it is the effort by which unde- veloped reason seeks to attain an individual gain or satisfaction.
Out of these natural conditions of force on one side and iner- tia on the other, but one result has been possible, viz., masculine domination by force and feminine subjection through weakness.
The men owned the women and children. Women were dis- tributed, not married, to suit the gross caprice or fancy of the men of the tribe. They were the property of the tribe, used and misused to satisfy the savage passion of the stronger half of the community.
LEGAL MARRIAGE. 353
In tracing the origin of the legal system we cannot go farther back into the mental and moral twilight of humanity than is illustrated in
"MARRIAGE BY CAPTURE."
In this brutal custom it is safe to say we strike the founda- tion of our own highly developed legal system and codes. Mar- riage by capture refers to the forcible capture and marriage of the women of one tribe by the men of another. This form of sex relation cannot be correctly designated as marriage. It repre- sents more correctly the results of physical combat and the phys- ical supremacy of man over woman and over other men. It marks the lowest point of human nature, and the smallest degree of natural intelligence. On the other hand, it represents the free play of man's naturally fierce passions and ambitions. Marriage by capture involves no greater exercise of intelligence than to effect capture and hold the captive against her will and against other rivals.
The next general step in the rational development of mar- riage is scarcely an appreciable one to the moral sense of a civilized being. It is,
"MARRIAGE BY PURCHASE AND SERVITUDE."
As the terms indicate, this refers to that condition of bar- barism where women have become a matter of commerce and barter. At this stage the men not merely own and dominate women and children, but they have risen to an appreciation of their commercial value. The husband owns his slave wife or wives. A man may kill his wives or sell them to other men. He owns his daughters and sells them in marriage. In point of morality there is nothing to mark the distinction between mar- riage by purchase and marriage by capture, except that we here find the first indications of the recognition of the property rights of others. Marriage by purchase and servitude involves a cer- tain exercise of the rational powers. It is one step in advance of
pure lawlessness. It necessitates a crude set of customs or laws. 23
354 HARMONICS OF EVOLUTION.
It embraces regulations, confers rights and privileges, and im- poses punishments for the infringement of the rights of others. There is a considerable degree of difference between the period where each man maintains his own supposed rights by his individual strength, and the point where individual rights are recognized by the community or tribe. Marriage by purchase and servitude, with all of its brutalities, involves the exercise of reason and the first faint perception of the rights of others. As may be imagined, this complete subjugation of woman affords her little opportunity for advancement. The sex relation be- comes a matter of barter and sale. It is subjected to every species of perversion that the fierce passions and low intelligence of man can devise. This engenders a gross polygamy, which pre- vails until man attains the next step in evolution known as,
THE CONCUBINATK.
This is the general form under which pure savagery emerges into semi-barbarism. This marks the period when the human mind has risen to a rational conception of a civil code of laws.