Note 373.1 — Chapter XIV · MARRIAGE RITES.

The common meal, as we have seen, implies brotherhood. The rites of hospitality among many nations constitute a temporary brotherhood, and confer on the guest many of the privileges of a kinsman. This, it seems reasonable to think, may have been the ground of that widely extended custom of offering the host’s wife to his guest. The custom is too well known to require more than a passing reference. Nor do I propose to give more to another custom, that, namely of the exchange, temporary or permanent, of wives. Where it is not dictated by mere occasional wantonness, but is a regular institution, it is usually limited to brethren of the blood. These cases may not go very far: to understand the true value of their evidence they must be placed side by side with cases where the husband’s prior right is determined either by his death or divorce. Among the Arabs, if a man divorced his wife, his heirs had a right to take her. “That implies,” as Professor Robertson Smith points out with unanswerable force, “that the kin had an interest in the woman’s marriage even while her husband lived, and that their interest became active as soon as he divested himself of his special claims on his wife. In short, the right of the heir is a modification of the older right of kinsmen to share each other’s marriages; and as soon as the exclusive right conferred on the husband by more modern law ceases and determines, whether by marriage [? death] or divorce, the older right of the kin revives.”373.1 Although it does not appear that a similar privilege is exercised by the kindred among the Bengali tribes, their rights over a woman are usually guarded by the requirement that divorce can only take place with the consent of a council of relatives or a panchayat of the village or caste.373.2 It is generally admitted now that the institution of the Levirate is traceable to polyandry wherein the husbands were united among themselves by the ties of blood. The Levirate was an institution deeply rooted in Hebrew polity, consecrated, if we may believe the traditions preserved in the most ancient Hebrew book now extant, by divine sanction under the tremendous penalty of death, and even in historic times enforceable by the public disgrace of a man who refused compliance.373.3 It has only become obsolete among the Jews in Europe during the last three centuries, while those of Palestine still hold to it.373.4 When a man died married but childless, leaving brothers, it was the duty of the eldest of the survivors to take the widow and beget issue for the deceased; nor was any form of marriage necessary between him and her. The same rule was prescribed in the Laws of Manu to the Hindu Aryans. There a brother or some other kinsman, not merely of a dead man, but also of a man who, in consequence of disease or mutilation, was incapable of himself begetting issue, might be appointed for the purpose; and the reason is expressly declared in the Apastamba to be that the bride is given to the husband’s family, and not to the husband alone. Moreover, logically following out the idea of solidarity, Manu declares that if only one among brothers have a son, all have male offspring through that son; and conversely, if only one of all the wives of one husband bear a son, all are mothers of male children through that son.374.1 If a Malagasy die childless, his next younger brother “must marry the widow to keep his brother in remembrance; the children of such marriages being considered as the elder brother’s heirs and descendants.”374.2 The Basuto custom is the same.374.3 But the Levirate is only a specialised form of a more general rule. It was developed when society had passed into the patriarchal phase, in order to preserve due succession. It shows how strong the feeling of solidarity of the kindred was. And that the wife was not regarded as no more than heritable property is brought into clear relief in the Hebrew and Hindu laws, where cohabitation ceased on the birth of a boy. Though this limitation be not observed by the Malagasy and Basutos, at least we cannot forget that the children begotten by the levir (that is, the man who took the widow) rank as his brother’s, and are entitled to his brother’s property. If the wife were simply inherited, both she and the children she afterwards bore would become the property of the man to whom she passed.