A HISTORY OF
MATRIMONIAL INSTITUTIONS
A HISTORY OF
MATRIMONIAL INSTITUTIONS
CHIEFLY IN ENGLAND AND THE UNITED STATES WITH AN INTRODUCTORY
ANALYSIS OF THE LITERATURE AND THE
THEORIES OF PRIMITIVE MARRIAGE
AND THE FAMILY
BY
GEORGE ELLIOTT HOWARD PH.D.
PROFESSORIAL LECTURER IN THE UNIVERSITY OF CHICAGO AUTHOR OF "LOCAL
CONSTITUTIONAL HISTORY OF THE UNITED STATES"
VOLUME THREE
CHICAGO
THE UNIVERSITY OF CHICAGO PRESS
CALLAGHAN & COMPANY
LONDON
T. FISHER UNWIN, PATERNOSTER SQUARE
1904
COPYRIGHT 1904
THE UNIVERSITY OF CHICAGO
Entered at Stationers' Hall
MAY, 1904
TO
Alice Frost Howard
HER HUSBAND DEDICATES THIS BOOK IN
GRATEFUL RECOGNITION OF HER
AID IN MAKING IT
ANALYTICAL TABLE OF CONTENTS
VOLUME ONE
PART I
ANALYSIS OF THE LITERATURE AND THE THEORIES OF PRIMITIVE
MATRIMONIAL INSTITUTIONS
PAGES
CHAPTER I. THE PATRIARCHAL THEORY 3-32
I. Statement of the Theory 9-13
II. Criticism of the Theory by Spencer and McLennan 14-17
III. The Theory in the Light of Recent Research 18-32
CHAPTER II. THEORY OF THE HORDE AND MOTHER-RIGHT 33-89
I. Bachofen and His Disciples 39-65
II. Morgan's Constructive Theory 65-76
III. McLennan's Constructive Theory 77-89
CHAPTER III. THEORY OF THE ORIGINAL PAIRING OR
MONOGAMOUS FAMILY 89-151
I. The Problem of Promiscuity 90-110
II. The Problem of Mother-Right 110-117
III. The Problem of Exogamy 117-132
IV. The Problem of the Successive Forms of the Family 132-151
CHAPTER IV. RISE OF THE MARRIAGE CONTRACT 152-223
I. Wife-Capture and the Symbol of Rape 156-179
II. Wife-Purchase and Its Survival in the Marriage
Ceremony 179-201
III. The Antiquity of Self-Betrothal or Free Marriage 201-210
IV. Primitive Free Marriage Surviving with Purchase,
and the Decay of the Purchase-Contract 210-223
CHAPTER V. EARLY HISTORY OF DIVORCE 224-250
I. The Right of Divorce 224-240
II. The Form of Divorce 240-241
III. The Legal Effects of Divorce 241-247
IV. Frequency of Divorce 247-250
PART II
MATRIMONIAL INSTITUTIONS IN ENGLAND
CHAPTER VI. OLD ENGLISH WIFE-PURCHASE YIELDS TO
FREE MARRIAGE 253-286
I. The Primitive Real Contract of Sale and Its
Modifications 258-276
II. Rise of Free Marriage: Self-_Beweddung_ and
Self-_Gifta_ 276-286
CHAPTER VII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH ACCEPTS THE LAY CONTRACT AND CEREMONIAL 287-320
I. The Primitive Christian Benediction, the Bride-Mass,
and the Celebration _ad Ostium Ecclesiae_ 291-308
II. The Priest Supersedes the Chosen Guardian, and
_Sponsalia per Verba de Praesenti_ Are Valid 308-320
CHAPTER VIII. RISE OF ECCLESIASTICAL MARRIAGE: THE
CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL
LAW 321-363
I. The Early Christian Doctrine and the Rise of the
Canonical Theory 324-340
II. Clandestine Marriages the Fruit of the Canonical
Theory 340-349
III. The Evils of the Spiritual Jurisdiction 351-359
IV. Publicity Sought through Banns and Registration 359-363
CHAPTER IX. THE PROTESTANT CONCEPTION OF MARRIAGE 364-403
I. As to the Form of Marriage 370-386
II. As to the Nature of Marriage 386-399
III. Child-Marriages in the Age of Elizabeth 399-403
CHAPTER X. RISE OF CIVIL MARRIAGE 404-473
I. Cromwell's Civil Marriage Act, 1653 408-435
II. Fleet Marriages and the Hardwicke Act, 1753 435-460
III. The Present English Law 460-473
VOLUME TWO
PART II--_Continued_
CHAPTER XI. HISTORY OF SEPARATION AND DIVORCE UNDER
ENGLISH AND ECCLESIASTICAL LAW 3-117
I. The Early Christian Doctrine and the Theory of
the Canon Law 11-60
_a_) Historical Elements of the Christian Teaching 11-23
_b_) Views of the Early Fathers 23-28
_c_) The Legislation of the Christian Emperors 28-33
_d_) The Compromise with German Custom 33-46
_e_) Final Settlement of the Christian Doctrine in
the Canon Law 47-60
II. The Protestant Doctrine of Divorce 60-85
_a_) Opinions of Luther and the Continental Reformers 60-71
_b_) Opinions of the English Reformers 71-85
III. Law and Theory during Three Centuries 85-117
_a_) The Views of Milton 85-92
_b_) Void and Voidable Contracts 92-102
_c_) Parliamentary Divorce 102-109
_d_) The Present English Law 109-117
PART III
MATRIMONIAL INSTITUTIONS IN THE UNITED STATES