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  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 TWO


  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