Marriage among civilised peoples is the legal union of a man and a woman in the relation of husband and wife. By anthropologists the term is used in a much wider sense, and denotes any union of the sexes sanctioned by the community, and founded on the contract which is of the essence of marriage, as we understand the term, though authorities are not agreed as to the last condition. The union may be lasting or temporary, there may be a plurality of husbands to one wife, or a plurality of wives to one husband; but if it becomes a "recognised right, protected by the tribe," it is entitled to the name of marriage. Whatever may have been the sexual relations of primitive man, there can be no doubt that, from the modern standpoint, they were very lax. Some authorities believe that the condition of affairs is best described as "promiscuity," which is sometimes dignified with the title "communal marriage," in which, according to Sir John Lubbock, "all the men and women in a small community were regarded as equally married to one another." But since no individual could appropriate what belonged to the community, it follows that no man could have a wife to himself. Against this state of affairs Bachofen considers the women rose in revolt, and introduced monogamy "not without an appeal to force." A more probable view is that it was "gradually superseded by individual marriage, founded on capture," of which custom two well-known examples are the Rape of the Sabines and the carrying off of the daughters of Shiloh by the sons of Benjamin (Judges xx. xxi.). As civilisation increased other methods of procuring wives were adopted, but customs which were doubtless survivals of the practice long lingered even in Europe; and Darwin suggested that the "best man" was originally the chief abettor of the bridegroom in the act of capture. With marriage by capture was closely related the practice of exogamy, or the inter. diction of marriage between persons of the same totem-clan. But the nature of the relation is by no means clear. Primitive man must have formed sexual connections with his own kindred, and the practice of infanticide (q.v.) must have limited the number of women, and so led to the practice of capturing women from another group for wives. This custom, long continued, would tend to acquire the force of law, till what was begun from necessity would be continued after the necessity bad ceased to exist. Exogamy has been very prevalent, and is still the rule among some of the American Indians, the aborigines of Australia, the Brahmins, and the Chinese. Amongst ourselves it is limited to blood relationships, and finds expression in the Table of Prohibited Degrees. Endogamy - which forbids marriage except between those akin, that is, between those of the same group - has also had a wide range. It may have arisen from tribal jealousy - a despising of "the daughters of Heth." Sir John Lubbock suggests that the difference between endogamous and exogamous tribes arose from the proportion of the sexes, and that where male children were in excess exogamy would prevail, and that where girls were in excess endogamy would be practised. [Family.]
The law of marriage is founded partly on Statute and partly on Common Law. In George II.'s reign it was enacted that the publication of banns and the solemnisation in one of the churches where they had been published was required, and that two witnesses besides the minister should be present, and that the register should be signed by the minister, parties, and witnesses. The statute as to the formalities of the marriage was strictly confined to England, from which circumstance what were known as Gretna Green marriages were valid. A later statute and other subsequent statutes provide for the validity of marriages celebrated in churches and chapels without the publication of banns [Banns]; and by other statutes, marriages by or without licenses may be solemnised by virtue of the superintendent registrar's certificate. By the Common Law of England the requisites to the validity of marriage are : 1. The presence of a priest in holy orders. 2. The presence of witnesses. 3. The consent of the parties. 4. The formalities of marriage as defined by the lex loci actus must be observed. 6. The essentials of the marriage as defined by the lex domicilii, including therein all questions of personal capacity or incapacity, must be observed. 0. The parties must not, be within the prohibited degrees of consanguinity or of affinity, and for this purpose illegitimate relationship counts, but the consent of parents is not necessary. As regards Scotland the marriage law is different, the consent of parties alone being sufficient to constitute the contract, and children born out of wedlock in that country, as in most others, become legitimate by the subsequent marriage of the parents, whereas in England the marriage ceremony must precede the births of children to render them legitimate. In the United States, as a general rule, no particular form is necessary to constitute a valid marriage if the consent of the spouses is proved. In some states the marriage must be authorised by a grant of license, and in Pennsylvania 12 witnesses are necessary; and the prohibition which exists here against marriage with a deceased wife's sister is very nearly unknown.