To illustrate the pre-exogamic stage of human society is not so easy as it may seem; for, though it is possible to find examples, especially amongst Negritos such as the Andamanese or Bushmen, of peoples of the rudest culture, and living in very small communities, who apparently know neither exogamy nor what so often accompanies it, namely, totemism, we can never be certain whether we are dealing in such a case with the genuinely primitive, or merely with the degenerate. For instance, the chapter on the forms of social organization in Professor Hobhouse'sMorals in Evolutionstarts off with an account of the system in vogue amongst the Veddas of the Ceylon jungle, his description being founded on the excellent observations of the brothers Sarasin. Now it is perfectly true that some of the Veddas appear to afford a perfect instance of what is sometimes called "the natural family." A tract of a few miles square forms the beat ofa small group of families, four or five at most, which, for the most part, singly or in pairs, wander round hunting, fishing, gathering honey and digging up the wild yams; whilst they likewise take shelter together in shallow caves, where a roof, a piece of skin to lie on—though this is not essential—and, that most precious luxury of all, a fire, represent, apart from food, the sum total of their creature comforts.
Now, under these circumstances, it is not, perhaps, wonderful that the relationships within a group should be decidedly close. Indeed, the correct thing is for the children of a brother and sister to marry; though not, it would seem, for the children of two brothers or of two sisters. And yet there is no approach to promiscuity, but, on the contrary, a very strict monogamy, infidelities being as rare as they are deeply resented. That they had clans of some sort was, indeed, known to Professor Hobhouse and to the authorities whom he follows; but these clans are dismissed as having but the slightest organization and very few functions. An entirely new light, however, has been thrown on the meaning of this clan-system by the recent researches of Dr. and Mrs. Seligmann. It now turns out that some of the Veddas are exogamous—that is to say, are obliged bycustom to marry outside their own clan—though others are not. The question then arises, Which, for the Veddas, is the older system, marrying-out or marrying-in? Seeing what a miserable remnant the Veddas are, I cannot but believe that we have here the case of a formerly exogamous people, groups of which have been forced to marry-in, simply because the alternative was not to marry at all. Of course, it is possible to argue that in so doing they merely reverted to what was once everywhere the primeval condition of man. But at this point historical science tails off into mere guesswork.
We reach relatively firm ground, on the other hand, when we pass on to consider the social organization of such exogamous and totemic peoples as the natives of Australia. The only trouble here is that the subject is too vast and complicated to permit of a handling at once summary and simple. Perhaps the most useful thing that can be done for the reader in a short space is to provide him with a few elementary distinctions, applying not only to the Australians, but more or less to totemic societies in general. With the help of these he may proceed to grapple for himself with the mass of highly interesting but bewildering details concerning socialorganization to be found in any of the leading first-hand authorities. For instance, for Australia he can do no better than consult the two fascinating works of Messrs. Spencer and Gillen on the Central tribes, or the no less illuminating volume of Howitt on the natives of the South-eastern region; whilst for North America there are many excellent monographs to choose from amongst those issued by the Bureau of Ethnology of the Smithsonian Institution. Or, if he is content to allow some one else to collect the material for him, his best plan will be to consult Dr. Frazer's monumental treatise,Totemism and Exogamy, which epitomizes the known facts for the whole wide world, as surveyed region by region.
The first thing to grasp is that, for peoples of this type, social organization is, primarily and on the face of it, identical with kinship-organization. Before proceeding further, let us see what kinship means. Distinguish kinship from consanguinity. Consanguinity is a physical fact. It depends on birth, and covers all one's real blood-relationships, whether recognized by society or not. Kinship, on the other hand, is a sociological fact. It depends on the conventional system of counting descent. Thus it may exclude real relationships; whilst, contrariwise, it may include such as are purely fictitious, as whensome one is allowed by law to adopt a child as if it were his own. Now, under civilized conditions, though there is, as we have just seen, such an institution as adoption, whilst, again, there is the case of the illegitimate child, who can claim consanguinity, but can never, in English law at least, attain to kinship, yet, on the whole, we are hardly conscious of the difference between the genuine blood-tie and the social institution that is modelled more or less closely upon it. In primitive society, however, consanguinity tends to be wider than kinship by as much again. In other words, in the recognition of kinship one entire side of the family is usually left clean out of account. A man's kin comprises either his mother's people or his father's people, but not both. Remember that by the law of exogamy, the father and mother are strangers to each other. Hence, primitive society, as it were, issues a judgment of Solomon to the effect that, since they are not prepared to halve their child, it must belong body and soul either to one party or to the other.
We may now go on to analyse this one-sided type of kinship-organization a little more fully. There are three elementary principles that combine to produce it. They are exogamy, lineage and totemism. A word must be said about each in turn.
Exogamy presents no difficulty until you try to account for its origin. It simply means marrying-out, in contrast to endogamy, or marrying-in. Suppose there were a village composed entirely of McIntyres and McIntoshes, and suppose that fashion compelled every McIntyre to marry a McIntosh, and every McIntosh a McIntyre, whilst to marry an outsider, say a McBean, was bad form for McIntyres and McIntoshes alike; then the two clans would be exogamous in respect to each other, whereas the village as a whole would be endogamous.
Lineage is the principle of reckoning descent along one or other of two lines—namely, the mother's line or the father's. The former method is termed matrilineal, the latter patrilineal. It sometimes, but by no means invariably, happens, when descent is counted matrilineally, that the wife stays with her people, and the husband has the status of a mere visitor and alien. In such a case the marriage is called matrilocal; otherwise it is patrilocal. Again, when the matrilocal type of marriage prevails, as likewise often when it does not, the wife and her people, rather than the father and his people, exercise supreme authority over the children. This is known as the matripotestal, as contrasted with the patripotestal, type of family.When the matrilineal, matrilocal and matripotestal conditions are found together, we have mother-right at its fullest and strongest. Where we get only two out of the three, or merely the first by itself, most authorities would still speak of mother-right; though it may be questioned how far the word mother-right, or the corresponding, now almost discarded, expression, "the matriarchate," can be safely used without further explanation, since it tends to imply a right (in the legal sense) and an authority, which in these circumstances is often no more than nominal.
Totemism, in the specific form that has to do with kinship, means that a social group depends for its identity on a certain intimate and exclusive relation in which it stands towards an animal-kind, or a plant-kind, or, more rarely, a class of inanimate objects, or, very rarely, something that is individual and not a kind or class at all. Such a totem, in the first place, normally provides the social group with its name. (The Boy Scouts, who call themselves Foxes, Peewits, and so on, according to their different patrols, have thus reverted to a very ancient usage.) In the second place, this name tends to be the outward and visible sign of an inward and spiritual grace that, somehow flowing from the totem to the totemites, sanctifies their communion. They are"all-one-flesh" with one another, as certain of the Australians phrase it, because they are "all-one-flesh" with the totem. Or, again, a man whose totem wasngaui, the sun, said that his name wasngauiand he "was"ngaui; though he was equally ready to put it in another way, explaining thatngaui"owned" him. If we wish to express the matter comprehensively, and at the same time to avoid language suggestive of a more advanced mysticism, we may perhaps describe the totem as, from this point of view, the totemite's "luck."
There is considerable variation, however, to be found in the practices and beliefs of a more or less religious kind that are associated with this form of totemism; though almost always there are some. Sometimes the totem is thought of as an ancestor, or as the common fund of life out of which the totemites are born and into which they go back when they die. Sometimes the totem is held to be a very present help in time of trouble, as when a kangaroo, by hopping along in a special way, warns the kangaroo-man of impending danger. Sometimes, on the other hand, the kangaroo-man thinks of himself mainly as the helper of the kangaroo, holding ceremonies in order that the kangaroos may wax fat and multiply. Again, almost invariably the totemite showssome respect towards his totem, refraining, for instance, from slaying and eating the totem-animal, unless it be in some specially solemn and sacramental way.
The upshot of these considerations is that if the totem is, on the face of it, a name, the savage answers the question, "What's in a name?" by finding in the name that makes him one with his brethren a wealth of mystic meaning, such as deepens for him the feeling of social solidarity to an extent that it takes a great effort on our part to appreciate.
Having separately examined the three principles of exogamy, lineage and totemism, we must now try to see how they work together. Generalization in regard to these matters is extremely risky, not to say rash; nevertheless, the following broad statements may serve the reader as working hypotheses, that he can go on to test for himself by looking into the facts. Firstly, exogamy and totemism, whether they be in origin distinct or not, tend in practice to go pretty closely together. Secondly, lineage, or the one-sided system of reckoning descent, is more or less independent of the other two principles.[4]
[Footnote 4: That is to say, either mother-right or father-right in any of their forms may exist in conjunction with exogamy and totemism. It is certainly not the fact that, wherever totemism is in a state of vigour, mother-right is regularly found. At most it may be urged in favour of the priority of mother-right that, if there is change, it is invariably from mother-right to father-right, and never the other way about.]
If, instead of consulting the evidence that is to hand about the savage world as it exists to-day, you read some book crammed full with theories about social origins, you probably come away with the impression that totemic society is entirely an affair of clans. Some such notion as the following is precipitated in your mind. You figure to yourself two small food-groups, whose respective beats are, let us say, on each side of a river. For some unknown reason they are totemic, one group calling itself Cockatoo, the other calling itself Crow, whilst each feels in consequence that its members are "all-one-flesh" in some mysterious and moving sense. Again, for some unknown reason each is exogamous, so that matrimonial alliances are bound to take place across the river. Lastly, each has mother-right of the full-blown kind. The Cockatoo-girls and the Crow-girls abide each on their own side of the river, where they are visited by partners from across the water; who, whether they tend to stay and make themselves useful, or are merely intermittent in their attentions, remain outsiders from the totemic point of view and are treated as such.The children, meanwhile, grow up in the Cockatoo and Crow quarters respectively as little Cockatoos or Crows. If they need to be chastised, a Cockatoo hand, not necessarily the mother's, but perhaps her brother's—never the father's, however—administers the slap. When they grow up, they take their chances for better and worse with the mother's people; fighting when they fight, though it be against the father's people; sharing in the toils and the spoils of the chase; inheriting the weapons and any other property that is handed on from one generation to another; and, last but not least, taking part in the totemic mysteries that disclose to the elect the inner meaning of being a Cockatoo or a Crow, as the case may be.
Now such a picture of the original clan and of the original inter-clan organization is very pretty and easy to keep in one's head. And when one is simply guessing about the first beginnings of things, there is something to be said for starting from some highly abstract and simple concept, which is afterwards elaborated by additions and qualifications until the developed notion comes near to matching the complexity of the real facts. Such speculations, then, are quite permissible and even necessary in their place. To do justice, however, to the facts about totemicsociety, as known to us by actual observation, it remains to note that the clan is by no means the only form of social organization that it displays.
The clan, it is true, whether matrilineal or patrilineal, tends at the totemic level of society to eclipse the family. The natural family, of course—that is to say, the more or less permanent association of father, mother and children, is always there in some shape and to some extent. But, so long as the one-sided method of counting descent prevails, and is reinforced by totemism, the family cannot attain to the dignity of a formally recognized institution. On the other hand, the totemic clan, of all the formally recognized groupings of society to which an individual belongs in virtue of his birth and kinship, is, so to speak, the most specific. As the Australian puts it, it makes him what he "is." His social essence is to be a Cockatoo or a Crow. Consequently his first duty is towards his clan and its members, human and not-human. Wherever there are clans, and so long as there is any totemism worthy of the name, this would seem to be the general law.
Besides the specific unity, however, provided by the clan, there are wider, and, as it were, more generic unities into which a man isborn, in totemic society of the complex type that is found in the actual world of to-day.
First, he belongs to a phratry. In Australia the tribe—a term to be defined presently—is nearly always split up into two exogamous divisions, which it is usual to call phratries.[5] Then, in some of the Australian tribes, the phratry is subdivided into two, and, in others, into four portions, between which exogamy takes place according to a curious criss-cross scheme. These exogamous subdivisions, which are peculiar to Australia, are known as matrimonial classes. Dr. Frazer thinks that they are the result of deliberate arrangement on the part of native statesmen; and certainly he is right in his contention that there is an artificial and man-made look about them. The system of phratries, on the other hand, whether it carves up the tribe into two, or, as sometimes in North America and elsewhere, into more than two primary divisions, under which the clans tend to group themselves in a more or less orderly way, has all the appearance of a natural development out of the clan-system. Thus, to revert to the imaginary case of the Cockatoos and Crows practising exogamy across the river, it seems easy to understand how the numberson both sides might increase until, whilst remaining Cockatoos and Crows for cross-river purposes, they would find it necessary to adopt among themselves subordinate distinctions; such as would be sure to model themselves on the old Cockatoo-Crow principle of separate totemic badges. But we must not wander off into questions of origin. It is enough for our present purpose to have noted the fact that, within the tribe, there are normally other forms of social grouping into which a man is born, as well as the clan.
[Footnote 5: From a Greek word meaning "brotherhood," which was applied to a very similar institution.]
Now we come to the tribe. This may be described as the political unit. Its constitution tends to be lax and its functions vague. One way of seizing its nature is to think of it as the social union within which exogamy takes place. The intermarrying groups naturally hang together, and are thus in their entirety endogamous, in the sense that marriage with pure outsiders is disallowed by custom. Moreover, by mingling in this way, they are likely to attain to the use of a common dialect, and a common name, speaking of themselves, for instance, as "the men," and lumping the rest of humanity together as "foreigners." To act together, however, as, for instance, in war, in order to repel incursions on the part of the said foreigners, is not easy without some definiteorganization. In Australia, where there is very little war, this organization is mostly wanting. In North America, on the other hand, amongst the more advanced and warlike tribes, we find regular tribal officers, and some approach to a political constitution. Yet in Australia there is at least one occasion when a sort of tribal gathering takes place—namely, when their elaborate ceremonies for the initiation of the youths is being held.
It would seem, however, that these ceremonies are, as often as not, intertribal rather than tribal. So similar are the customs and beliefs over wide areas, that groups with apparently little or nothing else in common will assemble together, and take part in proceedings that are something like a Pan-Anglican Congress and a World's Fair rolled into one. To this indefinite type of intertribal association the term "nation" is sometimes applied. Only when there is definite organization, as never in Australia, and only occasionally in North America, as amongst the Iroquois, can we venture to describe it as a genuine "confederacy."
No doubt the reader's head is already in a whirl, though I have perpetrated endless sins of omission and, I doubt not, of commission as well, in order to simplify the glorious confusion of the subject of the socialorganization prevailing in what is conveniently but loosely lumped together as totemic society. Thus, I have omitted to mention that sometimes the totems seem to have nothing to do at all with the social organization; as, for example, amongst the famous Arunta of central Australia, whom Messrs. Spencer and Gillen have so carefully described. I have, again, refrained from pointing out that sometimes there are exogamous divisions—some would call them moieties to distinguish them from phratries—which have no clans grouped under them, and, on the other hand, have themselves little or no resemblance to totemic clans. These, and ever so many other exceptional cases, I have simply passed by.
An even more serious kind of omission is the following. I have throughout identified the social organization with the kinship organization—namely, that into which a man is born in consequence of the marriage laws and the system of reckoning descent. But there are other secondary features of what can only be classed as social organization, which have nothing to do with kinship. Sex, for instance, has a direct bearing on social status. The men and the women often form markedly distinct groups; so that we are almost reminded of the way in which the maleand the female linnets go about in separate flocks as soon as the pairing season is over. Of course, disparity of occupation has something to do with it. But, for the native mind, the difference evidently goes far deeper than that. In some parts of Australia there are actually sex-totems, signifying that each sex is all-one-flesh, a mystic corporation. And, all the savage world over, there is a feeling that woman is uncanny, a thing apart, which feeling is probably responsible for most of the special disabilities—and the special privileges—that are the lot of woman at the present day.
Again, age likewise has considerable influence on social status. It is not merely a case of being graded as a youth until once for all you legally "come of age," and are enrolled, amongst the men. The grading of ages is frequently most elaborate, and each batch mounts the social ladder step by step. Just as, at the university, each year has apportioned to it by public opinion the things it may do and the things it may not do, whilst, later on, the bachelor, the master, and the doctor stand each a degree higher in respect of academic rank; so in darkest Australia, from youth up to middle age at least, a man will normally undergo a progressive initiation into the secrets of life, accompanied by asteady widening in the sphere of his social duties and rights.
Lastly, locality affects status, and increasingly as the wandering life gives way to stable occupation. Amongst a few hundred people who are never out of touch with each other, the forms of natal association hold their own against any that local association is likely to suggest in their place. According to natal grouping, therefore, in the broad sense that includes sex and age no less than kinship, the members of the tribe camp, fight, perform magical ceremonies, play games, are initiated, are married, and are buried. But let the tribe increase in numbers, and spread through a considerable area, over the face of which communications are difficult and proportionately rare. Instantly the local group tends to become all in all. Authority and initiative must always rest with the men on the spot; and the old natal combinations, weakened by inevitable absenteeism, at last cease to represent the true framework of the social order. They tend to linger on, of course, in the shape of subordinate institutions. For instance, the totemic groups cease to have direct connection with the marriage system, and, on the strength of the ceremonies associated with them, develop into what are known as secret societies. Or,again, the clan is gradually overshadowed by the family, so that kinship, with its rights and duties, becomes practically limited to the nearer blood-relations; who, moreover, begin to be treated for practical purposes as kinsmen, even when they are on the side of the family which lineage does not officially recognize. Thus the forms of natal association no longer constitute the backbone of the body politic. Their public importance has gone. Henceforward, the social unit is the local group. The territorial principle comes more and more to determine affinities and functions. Kinship has dethroned itself by its very success. Thanks to the organizing power of kinship, primitive society has grown, and by growing has stretched the birth-tie until it snaps. Some relationships become distant in a local and territorial sense, and thereupon they cease to count. My duty towards my kin passes into my duty towards my neighbour.
Reasons of space make it impossible to survey the further developments to which social organization is subject under the sway of locality. It is, perhaps, less essential to insist on them here, because, whereas totemic society is a thing which we civilized folk have the very greatest difficulty in understanding, weall have direct insight into the meaning of a territorial arrangement; since, from the village community up to the modern state, the same fundamental type of social structure obtains throughout.
Besides local contiguity, however, there is a second principle which greatly helps to shape the social order, as soon as society is sufficiently advanced in its arts and industries to have taken firm root, so to speak, on the earth's surface. This is the principle of private property, and especially of private property in land. The most fundamental of class distinctions is that between rich and poor. That between free and slave, in communities that have slavery, is not at first sight strictly parallel, since there may be a class of poor freemen intermediate between the nobles and the slaves; but it is obvious that in this case, too, private property is really responsible for the mode of grading. Or sometimes social position may seem to depend primarily on industrial occupation, the Indian caste-system providing an instance in point. Since, however, the most honourable occupations in the long run coincide with those that pay best, we come back once again to private property as the ultimate source of social rank, under an economic system of the more developed kind.
In this brief sketch it has been impossible to do more than hint how social organization is relative to numbers, which in their turn are relative to the skill with which the food-quest is carried on. But if, up to a certain point, it be true that the structure of society depends on its mass in a more or less physical way, there is to be borne in mind another aspect of the matter, which also has been hinted at as we went rapidly along. A good deal of intelligence has throughout helped towards the establishing of the social order. If social organization is in part a natural result of the expansion of the population, it is partly also, in the best sense of the word, an artificial creation of the human mind, which has exerted itself to devise modes of grouping whereby men might be enabled to work together in larger and ever larger wholes.
Regarded, however, in the purely external way which a study of its mere structure involves, society appears as a machine—that is to say, appears as the work of intelligence indeed, but not as itself instinct with intelligence. In what follows we shall set the social machine moving. We shall then have a better chance of obtaining an inner view of the driving power. We shall find that we have to abandon the notion that society is a machine. It is more, even, than an organism. It is acommunion of souls—souls that, as so many independent, yet interdependent, manifestations of the life-force, are pressing forward in the search for individuality and freedom.
CHAPTER VII
The general plan of this little book being to start from the influences that determine man's destiny in a physical, external, necessary sort of way, and to work up gradually to the spiritual, internal, voluntary factors in human nature—that strange "compound of clay and flame"—it seems advisable to consider law before religion, and religion before morality, whether in its collective or individual aspect, for the following reason. There is more sheer constraint to be discerned in law than in religion, whilst religion, in the historical sense which identifies it with organized cult, is more coercive in its mode of regulating life than the moral reason, which compels by force of persuasion.
To one who lives under civilized conditions the phrase "the strong arm of the law" inevitably suggests the policeman. Apart from policemen, magistrates, and the soldierswho in the last resort must be called out to enforce the decrees of the community, it might appear that law could not exist. And certainly it is hard to admit that what is known as mob-law is any law at all. For historical purposes, however, we must be prepared to use the expression "law" rather widely. We must be ready to say that there is law wherever there is punishment on the part of a human society, whether acting in the mass, or through its representatives. Punishment means the infliction of pain on one who is judged to have broken a social rule. Conversely, then, a law is any social rule to the infringement of which punishment is by usage attached. So long as it is recognized that a man breaks a social rule at the risk of pain, and that it is the business of everybody, or of somebody armed with the common authority, to make that risk a reality for the offender, there is law within the meaning of the term as it exists for anthropology.
Punishment, however, is by its very nature an exceptional measure. It is only because the majority are content to follow a social rule, that law and punishment are possible at all. If, again, every one habitually obeys the social rules, law ceases to exist, because it is unnecessary. Now, one reason why it is hard to find any law in primitive society is because,in a general way of speaking, no one dreams of breaking the social rules.
Custom is king, nay tyrant, in primitive society. When Captain Cook asked the chiefs of Tahiti why they ate apart and alone, they simply replied, "Because it is right." And so it always is with the ruder peoples. "'Tis the custom, and there's an end on't" is their notion of a sufficient reason in politics and ethics alike. Now that way lies a rigid conservatism. In the chapter on morality we shall try to discover its inner springs, its psychological conditions. For the present, we may be content to regard custom from the outside, as the social habit of conserving all traditional practices for their own sake and regardless of consequences. Of course, changes are bound to occur, and do occur. But they are not supposed to occur. In theory, the social rules of primitive society are like "the law of the Medes and Persians which altereth not."
This absolute respect for custom has its good and its bad sides. On the one hand, it supplies the element of discipline; without which any society is bound soon to fall to pieces. We are apt to think of the savage as a freakish creature, all moods—at one moment a friend, at the next moment a fiend. So he might be, if it were not for the social drillimposed by his customs. So he is, if you destroy his customs, and expect him nevertheless to behave as an educated and reasonable being. Given, then, a primitive society in a healthy and uncontaminated condition, its members will invariably be found to be on the average more law-abiding, as judged from the standpoint of their own law, than is the case any civilized state.
But now we come to the bad side of custom. Its conserving influence extends to all traditional practices, however unreasonable or perverted. In that amber any fly is apt to be enclosed. Hence the whimsicalities of savage custom. InPrimitive CultureDr. Tylor tells a good story about the Dyaks of Borneo. The white man's way of chopping down a tree by notching out V-shaped cuts was not according to Dyak custom. Hence, any Dyak caught imitating the European fashion was punished by a fine. And yet so well aware were they that this method was an improvement on their own that, when they could trust each other not to tell, they would surreptitiously use it. These same Dyaks, it may be added, are, according to Mr. A.R. Wallace, the best of observers, "among the most pleasing of savages." They are good-natured, mild, and by no means bloodthirsty in the ordinary relations of life. Yet they arewell known to be addicted to the horrid practice of head-hunting. "It was a custom," Mr. Wallace explains, "and as a custom was observed, but it did not imply any extraordinary barbarism or moral delinquency."
The drawback, then, to a reign of pure custom is this: Meaningless injunctions abound, since the value of a traditional practice does not depend on its consequences, but simply on the fact that it is the practice; and this element of irrationality is enough to perplex, till it utterly confounds, the mind capable of rising above routine and reflecting on the true aims and ends of the social life. How to break through "the cake of custom," as Bagehot has called it, is the hardest lesson that humanity has ever had to learn. Customs have often been broken up by the clashing of different societies; but in that case they merely crystallize again into new shapes. But to break through custom by the sheer force of reflection, and so to make rational progress possible, was the intellectual feat of one people, the ancient Greeks; and it is at least highly doubtful if, without their leadership, a progressive civilization would have existed to-day.
It may be added in parenthesis that customs may linger on indefinitely, after losing, through one cause or another, their place amongst thevital interests of the community. They are, or at any rate seem, harmless; their function is spent. Hence, whilst perhaps the humbler folk still take them more or less seriously, the leaders of society are not at pains to suppress them. Nor would they always find it easy to do so. Something of the primeval man lurks in us all; and these "survivals," as they are termed by the anthropologist, may often in large part correspond to impulses that are by no means dead in us, but rather sleep; and are hence liable to be reawakened, if the environment happens to supply the appropriate stimulus. Witness the fact that survivals, especially when the whirligig of social change brings uneducated temporarily to the fore, have a way of blossoming forth into revivals; and the state may in consequence have to undergo something equivalent to an operation for appendicitis. The study of so-called survivals, therefore, is a most important branch of anthropology, which cannot unfortunately in this hasty sketch be given its due. It would seem to coincide with the central interest of what is known as folk-lore. Folk-lore, however, tends to broaden out till it becomes almost indistinguishable from general anthropology. There are at least two reasons for this. Firstly, the survivals of custom amongst advanced nations, such asthe ancient Greeks or the modern British, are to be interpreted mainly by comparison with the similar institutions still flourishing amongst ruder peoples. Secondly, all these ruder peoples themselves, without exception, have their survivals too. Their customs fall as it were into two layers. On top is the live part of the fire. Underneath are smouldering ashes, which, though dying out on the whole, are yet liable here and there to rekindle into flame.
So much for custom as something on the face of it distinct from law, inasmuch as it seems to dispense with punishment. It remains to note, however, that brute force lurks behind custom, in the form of what Bagehot has called "the persecuting tendency." Just a boy at school who happens to offend against the unwritten code has his life made a burden by the rest of his mates, so in the primitive community the fear of a rough handling causes "I must not" to wait upon "I dare not." One has only to read Mr. Andrew Lang's instructive story of the fate of "Why Why, the first Radical," to realize how amongst savages—and is it so very different amongst ourselves?—it pays much better to be respectable than to play the moral hero.
Let us pass on to examine the beginnings of punitive law. After all, even under the sway of custom, casual outbreaks are liable to occur. Some one's passions will prove too much for him, and there will be an accident. What happens then in the primitive society? Let us first consider one of the very unorganized communities at the bottom of the evolutionary scale; as, for example, the little Negritos of the Andaman Islands. Their justice, explains Mr. Man, in his excellent account of these people, is administered by the simple method of allowing the aggrieved party to take the law into his own hands. This he usually does by flinging a burning faggot at the offender, or by discharging an arrow at him, though more frequently near him. Meanwhile all others who may be present are apt to beat a speedy retreat, carrying off as much of their property as their haste will allow, and remaining hid in the jungle until sufficient time has elapsed for the quarrel to have blown over. Sometimes, however, friends interpose, and seek to deprive the disputants of their weapons. Should, however, one of them kill the other, nothing is necessarily said or done to him by the rest. Yet conscience makes cowards of us all; so that the murderer, from prudential motives, will not uncommonly absent himself until hejudges that the indignation of the victim's friends has sufficiently abated.
Now here we seem to find want of social structure and want of law going together as cause and effect. The "friends" of whom we hear need to be organized into a police force. If we now turn to totemic society, with its elaborate clan-system, it is quite another story. Blood-revenge ranks amongst the foremost of the clansman's social obligations. Over the whole world it stands out by itself as the type of all that law means for the savage. Within the clan, indeed, the maxim of blood for blood does not hold; though there may be another kind of punitive law put into force by the totemites against an erring brother, as, for instance, if they slay one of their number for disregarding the exogamic rule and consorting with a woman who is all-one-flesh with him. But, between clans of the same tribe, the system of blood-revenge requires strict reprisals, according to the principle that some one on the other side, though not necessarily the actual murderer, must die the death. This is known as the principle of collective responsibility; and one of the most interesting problems relating to the evolution of early law is to work out how individual responsibility gradually develops out of collective, until at length,even as each man does, so likewise he suffers.
The collective method of settling one's grievances is natural enough, when men are united into groups bound together by the closest of sentimental ties, and on the other hand there is no central and impartial authority to arbitrate between the parties. One of our crew has been killed by one of your crew. So a stand-up fight takes place. Of course we should like to get at the right man if we could; but, failing that, we are out to kill some one in return, just to teach your crew a lesson. Comparatively early in the day, however, it strikes the savage mind that there are degrees of responsibility. For instance, some one has to call the avenging party together, and to lead it. He will tend to be a real blood-relation, son, father, or brother. Thus he stands out as champion, whilst the rest are in the position of mere seconds. Correspondingly, the other side will tend to thrust forward the actual offender into the office of counter-champion. There is direct evidence to show that, amongst Australians, Eskimo, and so on, whole groups at one time met in battle, but later on were represented by chosen individuals, in the persons of those who were principals in the affair. Thus we arrive at the duel. The transition is seen insuch a custom as that of the Port Lincoln black-fellows. The brother of the murdered man must engage the murderer; but any one on either side who might care to join in the fray was at liberty to do so. Hence it is but a step to the formal duel, as found, for instance, amongst the Apaches of North America.
Now the legal duel is an advance on the collective bear-fight, if only because it brings home to the individual perpetrator of the crime that he will have to answer for it. Cranz, the great authority on the Eskimo of Greenland, naïvely remarks that a Greenlander dare not murder or otherwise wrong another, since it might possibly cost him the life of his best friend. Did the Greenlander know that it would probably cost him his own life, his sense of responsibility, we may surmise, might be somewhat quickened. On the other hand, duelling is not a satisfactory way of redressing the balance, since it merely gives the powerful bully an opportunity of adding a second murder to the first. Hence the ordeal marks an advance in legal evolution. A good many Australian peoples, for example, have reached the stage of requiring the murderer to submit to a shower of spears or boomerangs at the hands of the aggrieved group, on the mutual understanding that the blood-revenge ends here.
Luckily, however, for the murderer, it often takes time to bring him to book; and angry passions are apt in the meanwhile to subside. The ruder savages are not so bloodthirsty as we are apt to imagine. War has evolved like everything else; and with it has evolved the man who likes fighting for its own sake. So, in place of a life for a life, compensation—"pacation," as it is technically termed—comes to be recognized as a reasonablequid pro quo. Constantly we find custom at the half-way stage. If the murderer is caught soon, he is killed; but if he can stave off the day of justice, he escapes with a fine. When private property has developed, the system of blood-fines becomes most elaborate. Amongst the Iroquois the manslayer must redeem himself from death by means of no less than sixty presents to the injured kin; one to draw the axe out of the wound, a second to wipe the blood away, a third to restore peace to the land, and so forth. According to the collective principle, the clansmen on one side share the price of atonement, and on the other side must tax themselves in order to make it up. Shares are on a scale proportionate to degrees of relationship. Or, again, further nice calculations are required, if it is sought to adjust the gross amount of the payment to the degree of guilt. Hence it is not surprising that, whena more or less barbarous people, such as the Anglo-Saxons, came to require a written law, it should be almost entirely taken up by regulations about blood-fines, that had become too complicated for the people any longer to keep in their heads.
So far we have been considering the law of blood-revenge as purely an affair between the clans concerned; the rest of the tribal public keeping aloof, very much in the style of the Andamanese bystanders who retire into the jungle when there is a prospect of a row. But with the development of a central authority, whether in the shape of the rule of many or of one, the public control of the blood-feud begins to assert itself; for the good reason that endless vendetta is a dissolving force, which the larger and more stable type of society cannot afford to tolerate if it is to survive. The following are a few instances illustrative of the transition from private to public jurisdiction. In North America, Africa, and elsewhere, we find the chief or chiefs pronouncing sentence, but the clan or family left to carry it out as best they can. Again, the kin may be entrusted with the function of punishment, but obliged to carry it out in the way prescribed by the authorities; as, for instance, in Abyssinia, where the nearest relation executes the manslayer in the presenceof the king, using exactly the same kind of weapon as that with which the murder was committed. Or the right of the kin to punish dwindles to a mere form. Thus in Afghanistan the elders make a show of handing over the criminal to his accusers, who must, however, comply strictly with the wishes of the assembly; whilst in Samoa the offender was bound and deposited before the family "as if to signify that he lay at their mercy," and the chief saw to the rest. Finally, the state, in the person of its executive officers, both convicts and executes.
When the state is represented by a single ruler, crime tends to become an offence against "the king's peace"—or, in the language of Roman law, against his "majesty." Henceforward, the easy-going system of getting off with a fine is at an end, and murder is punished with the utmost sternness. In such a state as Dahomey, in the old days of independence, there may have been a good deal of barbarity displayed in the administration of justice, but at any rate human life was no less effectively protected by the law than it was, say, in mediæval Europe.
The evolution of the punishment of murder affords the typical instance of thedevelopment of a legal sanction in primitive society. Other forms, however, of the forcible repression of wrong-doing deserve a more or less passing notice.
Adultery is, even amongst the ruder peoples, a transgression that is reckoned only a degree less grave than manslaughter; especially as manslaughter is a usual consequence of it, quarrels about women constituting one of the chief sources of trouble in the savage world. With a single interesting exception, the stages in the development of the law against adultery are exactly the same as in the case already examined. Whole kins fight about it. Then duelling is substituted. Then duelling gives way to the ordeal. Then, after the penalty has long wavered between death and a fine, fines become the rule, so long as the kins are allowed to settle the matter. If, however, the community comes to take cognizance of the offence, severer measures ensue. The one noticeable difference in the two developments is the following. Whereas murder is an offence against the chief's "majesty," and as such a criminal offence, adultery, like theft, with which primitive law is wont to associate it as an offence against property, tends to remain a purely civil affair. Kafir law, for example, according to Maclean, draws this distinction very clearly.
It remains to add as regards adultery that, so far, we have only been considering the punishment that falls on the guilty man. The guilty woman's fate is a matter relating to a distinct department of primitive law. Family jurisdiction, as we find it, for instance, in an advanced community such as ancient Rome, meant the right of thepater familias, the head of the house, to subject hisfamilia, or household, which included his wife, his children (up to a certain age), and his slaves, to such domestic discipline as he saw fit. Such family jurisdiction was more or less completely independent of state jurisdiction; and, indeed, has remained so in Europe until comparatively recent times.
What light, then, does the study of primitive society throw on the first beginnings of family law as administered by the house-father? To answer this question at all adequately would involve the writing of many pages on the evolution of the family. For our present purpose, all turns on the distinction between the matripotestal and the patripotestal family. If the man and the woman were left to fight it out alone, the latter, despite the "shrewish sanction" that she possesses in her tongue, must inevitably bow to the principle that might is right. But, as long as marriage is matrilocal—that is to say, allows the wife toremain at home amongst male defenders of her own clan—she can safely lord it over her stranger husband; and there can scarcely be adultery on her part, since she can always obtain divorce by simply saying, Go! Things grow more complicated when the wife lives amongst her husband's people, and, nevertheless, the system of counting descent favours her side of the family and not his. Does the mere fact that descent is matrilineal tend to imply on the whole that the mother's kin take a more active interest in her, and are more effective in protecting her from hurt, whether undeserved or deserved? It is no easy problem to settle. Dr. Steinmetz, however, in his important work onThe Evolution of Punishment(in German), seeks to show that under mother-right, in all its forms taken together, the adulteress is more likely to escape with a light penalty, or with none at all, than under father-right. Whatever be the value of the statistical method that he employs, at any rate it makes out the death penalty to be inflicted in only a third of his cases under the former system, but in about half under the latter.