[551] This is in effect conceded by Spencer. While rightly rejecting the theory of systematic foreign wife-capture, as a general phase in the development of marriage, he holds that the symbol of rape may sometimes result from struggles for women within the tribe, or from the resistance of the father and male relatives of the bride.
[552] "Der Raub begründet die Ehe nur insofern, als er zugleich jenes Zusammenleben herbeiführt; er ist Eheschliessungsform in demselben Sinne, wie er noch nach heutigem Recht als Besitzerwerbsform bezeichnet werden kann." It is only a matter of _Kulturgeschichte_ and has no juridical significance.--BERNHÖFT, "Principien des eur. Familienrechts," _ZVR._, IX, 393.
[553] This is contrary to the common opinion, as expressed, for instance, by DARGUN, _op. cit._, 84, but it appears to be sustained both by reason and the facts. For an example of the restraint of wife-capture through dread of the feud, see CURR, _The Australian Race_, I, 108. REHME, "Das Recht der Amaxosa," _ZVR._, X, 40, shows that the harshness of the husband is mitigated by fear of the vengeance of the wife's relatives; and the same fact is noted by FISON AND HOWITT, _Kamilaroi and Kurnai_, 206. _Cf._ KOHLER, "Das Recht der Australneger," _ZVR._, VII, 349; HELLWALD, _Die mensch. Familie_, 280 ff., 288, 289, 298; LIPPERT, _Geschichte der Familie_, 42; and his _Kulturgeschichte_, II, 86, 87, for the restraining effects of the blood-feud.
[554] This fact is overlooked by McLennan, who, though maintaining that exogamy originates in wife-capture, still believes that the reduction of capture to a system is due to the influence of exogamy. WESTERMARCK, _op. cit._, 389, makes the same oversight; though, of course, the horror of close intermarriage, in case of inability to purchase, might lead to the occasional breach of custom in the form of wife-stealing.
II. WIFE-PURCHASE AND ITS SURVIVAL IN THE MARRIAGE CEREMONY
It is a common opinion that marriage by purchase supersedes wife-capture as a later and higher stage of development. Such apparently is the view of McLennan, who regards the purchase-contract as of late origin and as the principal means by which the transition from the maternal to the paternal system of kinship and to the individual family was brought about.[555] Post declares that bride-purchase is a universal phase of development, more advanced than that of wife-capture;[556] and he agrees with McLennan in regarding it as a mark of transition.[557] A similar position is taken by Heusler, Lippert, Kulischer, and also by Kohler;[558] while Spencer, without asserting that either is a stage through which marriage among all peoples has passed, thinks that purchase is the usual substitute for violence as civilization progresses. "We may suspect," he says, "that abduction, spite of parents, was the primary form; that there came next the making of compensation to escape vengeance; that this grew into the making of presents beforehand; and that so resulted eventually the system of purchase."[559]