Chapter 20

FOOTNOTES:

[1]Nat. Tribes, p. 157. It is hardly necessary to point out that this phrase is without a precise sense, unless it be evident in what sense the author uses the conception "social unit." One looks in vain for such a definition in Howitt.

[2]Howitt,Trans. R.S.V.,l.c., p. 134.

[3]Trans. R.S.V., p. 135.

[4]Compare the passage quoted by A. Lang, just below, and the passage quoted by us,pp. 108sqq., andp. 243. How far Spencer and Gillen have the right to deny the existence of the individual family among the Urabunna will be discussed in detail below.

[5]I have quoted the best first-hand authorities; instances could easily be multiplied as well from their works as also from other sources.

[6]Trans. R.S.V., p. 115.

[7]Curr,A.R., i. p. iii.

[8]Curr,A.R., i. p. 60.

[9]Procs. B. Academy, vol. iii. 1908, May report, p. 4.

[10]Westermarck Ed.The History of Human Marriage, p. 56.

[11]Curr,A.R., i. p. 126.

[12]Mathew,J.R.S.N.S.W., xxiii. p. 404, quoted from Westermarck,H.H.M., p. 57.

[13]E. Grosse, p. 6.

[14]Trans. R.S.V., p. 135.

[15]Trans. R.S.V., p. 113.

[16]Ase. g.in the general treatises of Spencer and Gillen,Nat. Tr., Nor. Tr., Howitt'sNat. Tr., Howitt and Fison,K.K. IdeminJ.A.J., xii. p. 33. Howitt inTrans. R.S.V., p. 100, and inSmithsonian Reports, p. 79.

[17]Anthrop. Essays, pp. 309sqq.

[18]Comp. below, p. 206, the second paragraph offootnote 1.

[19]Defining that term only broadly at the outset.

[20]In the treatises on primitive law and on family law such general concepts as "legal" or "law" are never explicitly defined. Perhaps such a definition is superfluous for a specialist, but I think that especially in the ethnology of primitive peoples precise concepts and explicit definitions are necessary. I may, however, mention the following places where there are some attempts at definition—Post,l.c., i. sec. 3, pp. 8-10. The author gives a few remarks about the beginnings of law. He maintains it existed asRechtsgefühl, feeling of legality, and was evolved through a system of juridical verdicts, given according to this sentiment. There were no legal norms at the beginning.—This passage is unsatisfactory, both because it does not give any strict definition and because it does not seem to be in agreement with the facts.Kohler,l.c., p. 323. No strict definition given. Besides the author says that there is no organization (staatliche Organisation), no tribunal, and no executive among the Australian aborigines. This assertion may be questioned; compare below.Durkheim, D.T.S., pp. 28sqq.and 108sqq.There are some interesting remarks bearing upon our subject; but there are no sufficiently clear definitions, especially none to suit the laws of quite primitive peoples.Lord Avebury,l.c., chap. xi. pp. 464sqq.No definition of what "law," "legal," should mean in very low societies, attempted. Law and custom are not discriminated. Some interesting remarks on punishment (pp. 495sqq.) are not utilized in order to afford strict concepts.

Post,l.c., i. sec. 3, pp. 8-10. The author gives a few remarks about the beginnings of law. He maintains it existed asRechtsgefühl, feeling of legality, and was evolved through a system of juridical verdicts, given according to this sentiment. There were no legal norms at the beginning.—This passage is unsatisfactory, both because it does not give any strict definition and because it does not seem to be in agreement with the facts.

Kohler,l.c., p. 323. No strict definition given. Besides the author says that there is no organization (staatliche Organisation), no tribunal, and no executive among the Australian aborigines. This assertion may be questioned; compare below.

Durkheim, D.T.S., pp. 28sqq.and 108sqq.There are some interesting remarks bearing upon our subject; but there are no sufficiently clear definitions, especially none to suit the laws of quite primitive peoples.

Lord Avebury,l.c., chap. xi. pp. 464sqq.No definition of what "law," "legal," should mean in very low societies, attempted. Law and custom are not discriminated. Some interesting remarks on punishment (pp. 495sqq.) are not utilized in order to afford strict concepts.

[21]Trans. R.S.V., pp. 103sqq.;J.A.I., xii, p. 35; J.A.I, xiii, p. 282. And especiallyNat. Tr., chap. vi. pp. 295-354. The elucidation of the problem of authority and justice in Australia is one of Howitt's chief merits. In the passages quoted, there will be found ample material to exemplify all that is said in the text. I shall give, however, a few more detailed references on some special points. Howitt does not classify the facts according to the principle just enunciated. But all he says fits perfectly well into our scheme, and he puts stress on some essential points; viz. that there is a tribal as well as a supernatural punishment; that there is a central authority, and that it had means to enforce and execute its decrees. Curr (A.R., vol. i. pp. 53sqq.) emphatically denies the existence of any kind of government; but his polemic is due to the misunderstanding of the wordgovernmentas it should be applied to the Australian aboriginal society. For general discussion of this problem compare also G. C. Wheeler, pp. 46-52. Interesting details, corroborating Howitt's opinion may be found also in the following places: Spencer and Gillen,Nat. Tr., pp. 12sqq., p. 324, p. 477, pp. 491sqq.Nor. Tr., pp. 26sqq.R. Dawson, pp. 64-65. Hodgson, p. 204. J. D. Lang, p. 331. G. S. Lang, pp. 9-10. Grey, ii. p. 222. Eyre, ii. pp. 214, 318, 385. Woods, p. 8. L. Schultze, p. 225. J. B. Gribble, p. 114. J. Mathew, p. 129. Compare also the following extracts, where I shortly indicate what is to be found—Ch. Wilkes, ii. 204. Obedience to elders.Idem, i. 222. Regulated fights. Wilson, 144. Reverence towards old men. Bennett, pp. 177-178. Chiefs chosen for personal qualities. Turnbull, p. 91. Ordeals as punishment for crime, p. 101. Respect for and authority of old men and magicians. Barrington, 81. Pacific settlement of differences. Henderson, pp. 107, 158. No chiefs: only "doctors" wield some authority; p. 160, Duel as redress of injuries. Macgillivray, i. 151. Power and authority of old and experienced men; p. 152, Important instances of justice.Idem, ii. p. 27. Authority wielded by some important and privileged men. G. W. Earl, p. 275. Alleged powerful chiefs (unreliable). Campbell, 171. Instances of important and influential men. B. Field, 67. Description of two regulated fights. Krichauff, p. 77. Old men and doctors in council: they carry out the resolutions arrived at, or see that these are carried out; p. 78, Laws, which the warriors or old men uphold. Penalties: reprimand, exit, and ordeal. Sutton, p. 18. Hereditary "kingship." Wilhelmi, p. 183. No chiefs. Respect for old men and their magical powers. D. Mathews, p. 49. Council of old men. S. Newland.Proc. R.G.S.S.A., iii. p. 40sqq.Examples of important and powerful men. Mrs. Bates, p. 52. Regulation of offences by ordeals.All these references bear indiscriminately on one or the other of the important features of government and of legal or other norms discussed in the text.

Ch. Wilkes, ii. 204. Obedience to elders.Idem, i. 222. Regulated fights. Wilson, 144. Reverence towards old men. Bennett, pp. 177-178. Chiefs chosen for personal qualities. Turnbull, p. 91. Ordeals as punishment for crime, p. 101. Respect for and authority of old men and magicians. Barrington, 81. Pacific settlement of differences. Henderson, pp. 107, 158. No chiefs: only "doctors" wield some authority; p. 160, Duel as redress of injuries. Macgillivray, i. 151. Power and authority of old and experienced men; p. 152, Important instances of justice.Idem, ii. p. 27. Authority wielded by some important and privileged men. G. W. Earl, p. 275. Alleged powerful chiefs (unreliable). Campbell, 171. Instances of important and influential men. B. Field, 67. Description of two regulated fights. Krichauff, p. 77. Old men and doctors in council: they carry out the resolutions arrived at, or see that these are carried out; p. 78, Laws, which the warriors or old men uphold. Penalties: reprimand, exit, and ordeal. Sutton, p. 18. Hereditary "kingship." Wilhelmi, p. 183. No chiefs. Respect for old men and their magical powers. D. Mathews, p. 49. Council of old men. S. Newland.Proc. R.G.S.S.A., iii. p. 40sqq.Examples of important and powerful men. Mrs. Bates, p. 52. Regulation of offences by ordeals.

All these references bear indiscriminately on one or the other of the important features of government and of legal or other norms discussed in the text.

[22]Chiefs are reported by Taplin (Woods, p. 32); J. Dawson, pp. 5sqq.But these statements, especially the latter, seem subject to doubt. Compare Curr,A.R., i. pp. 55 and 58. Howitt and his correspondents report chiefs among the Dieri, Tongaranka, Wiimbaio, Theddora, Yuin, Wiradjuri, Gurnditch Mara, Kulin, etc.,Nat. Tr., pp. 297-320. Compare also Waitz Gerland, p. 790. But the term "Chief" appears somewhat vague; probably it is usually applied to influential individuals, whose importance is due to their personal qualities and not to their social position. The influence of old men, magicians and "doctors," is almost universally reported, and the council made up of them seems to wield the real power in the tribe. Compare Howitt,Nat. Tr., pp. 320-326, for some of the above references.

[23]See Wheeler, p. 122, where it is said that offences like murder by magic, breaches of the marriage regulations, and the revealing of ceremonial secrets are dealt with by the elders and headmen. The legislative powers of old and influential men is mentioned: Howitt,Nat. Tr., pp. 89sqq.(new norms introduced by individuals under alleged supernatural command or vision). Spencer and Gillen,Nat. Tr., pp. 12sqq.(important changes in custom, law, organization by individual initiative),idem,Nat. Tr., p. 324.Nor. Tr., pp. 26sqq.(a kind of tribunal formed by old and influential men). Spencer and Gillen,Nat. Tr., p. 477 (old men in council assembled decide); p. 490 (Atninga, avenging party, despatched by old men, whenever vengeance is to be taken); pp. 491 (old men discuss and settle matters with an Atninga party). Howitt,Nat. Tr., pp. 297, 298 (Council of Pinnaru described); pp. 320sqq.(deliberating in all important matters).

[24]For the methods of carrying out justice,i. e.for the executive organs, see Wheeler, pp. 131-139, where the "authorized agents" (avenging parties, etc.), regulated fights, expiatory ordeals and blood revenge, methods which, as different forms of carrying out justice, are more or less executions of a sentence and have the character of legal proceedings.See also under the heading "Executive power of tribal councils of old men," in Howitt'sNat. Tr., chap. vi. pp. 295sqq.—The Pinya party of the Dieri tribe.Ibid., pp. 297, 321 and 326.—An atonement of the offence by barter, p. 329. Direct action of magicians,ibid.p. 343. Compare also the Kurdaitcha, Illapurinja, and Atninga parties of the Arunta. Spencer and Gillen,Nat. Tr., chap. xiii. p. 475. All these parties are more or less under the control of the tribal council of old men.

See also under the heading "Executive power of tribal councils of old men," in Howitt'sNat. Tr., chap. vi. pp. 295sqq.—The Pinya party of the Dieri tribe.Ibid., pp. 297, 321 and 326.—An atonement of the offence by barter, p. 329. Direct action of magicians,ibid.p. 343. Compare also the Kurdaitcha, Illapurinja, and Atninga parties of the Arunta. Spencer and Gillen,Nat. Tr., chap. xiii. p. 475. All these parties are more or less under the control of the tribal council of old men.

[25]Compare Spencer and Gillen,Nat. Tr., p. 554: "... a man's right to woman secured by means" of magic "is supported by the men of his own local group." Compare also the description of this method of charming away a woman inProc. R. Geogr. Soc. S. Australia, vol. iv. p. 26, by F. Gillen.

[26]Soe. g.there could be placed in thefirst categorydifferent kinds of food taboos. In the Arunta, food procured or handled by certain relatives may not be eaten by a man; nor may be eaten any food in their immediate presence. Such food would disagree with the man. Spencer and Gillen,Nat. Tr., p. 469.—If certain food taboos were transgressed during initiation by the boys, their wounds would inflame.Ibid.p. 470.—Certain taboos must be observed during pregnancy both by the woman and her husband; if they were transgressed the sickness of the woman would be worse and the man would lose his skill in hunting.Ibid.p. 471.—Compare also Mitchell, ii. p. 29, and Wilhelmi, p. 176. If the man should transgress the mother-in-law taboo, his hair would prematurely grow grey, or he would soon become bald. This belief is very widespread. Howitt,Nat. Tr., p. 296. D. Mathews, p. 49. Mrs. Bates, p. 50. Compare also Waitz Gerland, p. 795, where different norms, enforced by supernatural punishment, are mentioned, and also MacGillivray, ii. 10, Eyre ii. 339, Stanbridge, p. 289. Different ceremonies and ordeals at mourning and burial are regulated bycustom; the same thing may probably be said of some of the initiatory ordeals. Noncompliance would involve the general ridicule or contempt of the tribesmen: Spencer and Gillen,Nat. Tr., p. 510. Ascrimesmay be mentioned: transgression of the class rule as well in marriage as in sexual intercourse. Spencer and Gillen,Nat. Tr., p. 495, say that the usual punishment is death. Killing by magic: Spencer and Gillen, p. 476; Waitz Gerland, p. 794. In some cases the transgression of the mother-in-law taboo seems to be punished by expulsion from the local group: Howitt,Nat. Tr., p. 296.—Salvado says that marriage under thirty years is punished by death (p. 267). Such examples could be indefinitely multiplied.

[27]The ethnographic sources do not differ essentially from the historical ones. The purpose of a descriptive ethnography (such as is adopted in this monograph) is also nearly identical with the historian's task so far as positive statement of an actual state of things is the aim of both. The rules of criticism of sources apply therefore to our subject as well as to any other historic science. This will become obvious to every ethnographer who reads the excellent manual of MM. Langlois et Seignobos. The proof of the indispensability of such a criticism is to be found there, too. The method of criticism of sources adopted in this paper was accepted after a careful study of this useful book.

[28]We obviously do not speak here of such writers as Howitt, W. E. Roth, Spencer and Gillen, authors who had a theoretical training. But, as may be pointed out here, in the present work no writer is excluded, provided that he has had opportunities of first-hand observation, or opportunities of private information from first-hand observers.

[29]See below the discussion of this topic,Chap. V., I.

[30]Much weight has been attached to a very extensive reproduction of the original text. More important statements are always adduced verbatim; less important, or too cumbersome ones, are abridged, but keeping as closely to the original words as possible.

[31]For instance, we can judge this from Curr'sRecollections; we know pretty well the state of the different tribes investigated by Howitt, Spencer and Gillen, and by Roth. In many other cases a general idea may be formed from different hints.

[32]The aborigines in their natural uncorrupted state appear to have been extremely shy, and great difficulties would undoubtedly have arisen had any one attempted to come into more intimate contact with them. But in the early days of the settlement of Australia there was nobody with such intentions. It is sufficient to read very early accounts, such as the voyages of Gov. Phillip, Barrington; as also accounts of explorers like Grey, Eyre, Leichardt, Mitchell, Sturt, etc., to see how shy and inaccessible were the blacks in their really savage state.

[33]For examples how natives on mission stations may be forced into morality, legal and Christian marriages, etc., the reader may be referred to the personal diaries of missionaries. Comparee. g.the article by the missionary D. Mathews,l.c.pp. 48sqq.

[34]See below, the statements,pp. 92sqq.

[35]Compare also above,pp. 2-5.

[36]As far as I see, in the present state of our knowledge, it is only admissible to speak with greatest care and in very broad lines of the Australian types of culture. Interesting attempts have been made in this direction by Dr. Graebner, Mr. N. W. Thomas, and Father Schmidt. The two latter especially base their work on a profound and extensive knowledge, and formulate their results with the utmost reserve and carefulness. Fr. W. Schmidt has at his disposal the powerful instrument of linguistic knowledge. Mr. W. N. Thomas knows the Australian facts as nobody else does. Their conclusions are therefore of much weight. The present investigations afford little opportunity to point out geographic differences. Compare Fr. W. Schmidt, "Die Stellung, d. Aranda," etc.,Z.f.E., 1908, pp. 866sqq.; F. Graebner,Ibid., 1905, pp. 28sqq.;Globus, xc. Consult also N. W. Thomas,Kinship, and the same,Z.f.E., 1905.

[37]Mr. Thomas in his work on Australian kinship suggests at every step questions which apparently are quite within the scope of investigation, and upon which our present evidence gives no answer. But unhappily I have not been able to trace any influence of this important work in the recent ethnographic publications.

[38]Curr,A.R., i. pp. 53sqq.

[39](Hist. H. Marr., chap. iii.) Dr. Westermarck's work was written on much more general lines. He did not aim at a purely morphological reconstruction of family life in any ethnographical province. I did not, therefore, refer to his researches in the methodological sketch; here, however, they must serve as a starting point. It is the most exhaustive treatise on the individual family; all the essential parts of the problem are sketched in a masterly manner in this fundamental work, and the outlines of more special investigation indicated.

[40]Howitt,Kamilaroi and Kurnai, p. 343. See also their modes of getting females by capture. Compare pp. 200sq.and pp. 348sq.

[41]p. 202.

[42]Ibid.

[43]In Brough Smyth, i. p. 77. Compare also Howitt,Kamilaroi and Kurnai, p. 350.

[44]Nat. Tr., p. 249.

[45]Howitt,Nat. Tr., p. 263 264. Compare alsoTrans. R.S.V., p. 117.

[46]Howitt inTrans. R.S.V., p. 116.

[47]Curr,Recollections, p. 248

[48]Beveridge, p. 22.

[49]J. Dawson, p. 28.

[50]Ibid., p. 28.

[51]Ibid., p. 29.

[52]Ibid., p. 34.

[53]Loc. cit., p. 31.

[54]Howitt,Nat. Tr., p. 241. AlsoTrans. R.S.V., p. 116.

[55]Loc. cit., p. 288. (Mount Gambier tribes.)

[56]Brough Smyth, ii. p. 156, on the authority of some first-hand observer. Brough Smyth gives also (i. pp. 83, 84) a detailed account of courtship and betrothal. But according to our criterion we do not accept it as a first-hand evidence; nevertheless, it may be useful as illustration.

[57]Eyre, ii. p. 319.

[58]F. Bonney,J.A.I., xiii. p. 129.

[59]S. Newland,loc. cit., p. 21.

[60]H. E. A. Meyer, quoted by Rev. Taplin,loc. cit., p. 10.

[61]Ibid., p. 11.

[62]Ibid., p. 12. Taplin's own remark. See alsoKamilaroi and Kurnai, p. 350, where it is added that in cases of unsuccessful elopement against the parents' will, the couple were severely punished; the offender being even put to death.

[63]Sutton, p. 17.

[64]I think it means not by exchange.

[65]Howitt,N.T.S.E.A., p. 216. Geawe Gal, Hunter River, New South Wales; possessing the Kamilaroi sub-class. See alsoKam. and Kurn., p. 250.

[66]G. S. Lang, p. 11.

[67]Loc. cit., p. 110.

[68]Turnbull, pp. 98, 99.

[69]Wilkes (smaller edition), i. p. 225.

[70]Ibid.

[71]Hodgkinson,loc. cit., pp. 229, 230.

[72]Loc. cit., p. 199.

[73]Loc. cit., p. 168.

[74]C. P. Hodgson, p. 220.

[75]Ibid., p. 243.

[76]R. H. Mathews inJ.R.S.N.S.W., xxxiv. pp. 263, 264.

[77]Mrs. Parker,loc. cit., p. 55.

[78]Howitt,Nat. Tr., p. 211.

[79]Howitt,J.A.I., xx. p. 55, and Frazer,ibid., xxiv. p. 169.

[80]Howitt,N.T.S.E.A., p. 177, andJ.A.I., xx. pp. 57sq.

[81]Kam. and Kurn., p. 350.

[82]Loc. cit., p. 236.

[83]W. H. Willshire,loc. cit., p. 27.

[84]Spencer and Gillen,Nat. Tr., chap. xvii,Methods of obtaining Wives, pp. 554sqq.Compare alsoNor. Tr., pp. 32 and 33.

[85]Compare also the detailed description of charming by magic (different methods) given by J. Gillen inProc. R.G.S.S.A., iv. pp. 25sqq.

[86]No other man of the party having any access to her.Nat. Tr., p. 556.

[87]Nat. Tr., p. 555. The story related in this place is given by the author as an illustration of a general custom.

[88]Nat. Tr., pp. 556, 557. The story told, pp. 557, 558, where both the eloped woman and her actual husband have an ordeal to submit to from the former husband. After having renounced her in this way she became the property of the man with whom she had eloped.

[89]Ibid., p. 558.

[90]Who is often of the very same age as he, pp. 558, 559.

[91]Ibid., p. 559.

[92]Ibid., 554. As alsoNor. Tr., p. 33.

[93]Ibid., p. 559.

[94]Nat. Tr., p. 559.

[95]Ibid., p. 555.

[96]Ibid., p. 560

[97]Nor. Tr., p. 77.

[98]Ibid., p. 33.

[99]CompareNat. Tr., chap, iii., pp. 92sqq., andNor. Tr., chap, iv., pp. 133sqq.

[100]Nat. Tr., pp. 92sqq.

[101]For detailed description seeNat. Tr., pp. 92, 93 (Arunta and Ilpirra), p. 94 (S. Arunta), pp. 94, 95 (Kaitish), p. 95 (the remaining six tribes). These ceremonies differ only in details from each other in different tribes.

[102]Nor. Tr., p. 135.

[103]Ibid., p. 135.

[104]According to Lord Avebury; seeNat. Tr., p. 96.

[105]Nor. Tr., pp. 603, 604.

[106]Ibid., p. 77, footnote.

[107]Tom Petrie,loc. cit., pp. 59, 60.

[108]Howitt,Trans. R.S.V., p. 118.

[109]J. D. Lang,loc. cit., p. 337.

[110]Lumholtz,loc. cit., p. 154.

[111]Ibid.,loc. cit., p. 165.

[112]Loc. cit., i. p. 89.

[113]Howitt,Nat. Tr., p. 222, andTrans. R.S.V., p. 117.

[114]W. E. Roth,Ethnol. Stud., pp. 180, 181, sec. 323.

[115]SeeIbid., sec. 238.

[116]Ibid., p. 181, undera.

[117]Ibid.

[118]Ibid., p. 181, underb.

[119]Ibid., p. 181, underc.

[120]W. E. Roth,N.Q. Ethnog., Bull. 8, p. 5.

[121]Loc. cit., i. p. 151.

[122]Wilson, p. 144.

[123]Macgillivray,loc. cit., ii. p. 8.

[124]Loc. cit., p. 317.

[125]Oldfield, p. 249.

[126]Ibid., pp. 249, 250.

[127]Salvado,loc. cit., p. 278.

[128]Ibid., pp. 278, 279.

[129]Geo. Grey, ii. pp. 229, 230.

[130]Loc. cit., p. 5.

[131]Loc. cit., p. 41.

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