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CHAPTER IV
EARLIEST EVOLUTION OF LAW

Trace between semi-human sire and son. – Consequent distinction taken between female and female, as such – Consequent rise of habit of Brother and Sister Avoidance. – Result, son seeks female mate from without Note by the editor.

In what, then, we are willing to concede, must have been exceptional circumstances, may thus have been taken that first step in progress which was to lead to such vast advance. In a development of the social qualities depended the whole future of mankind, and here we seem to see their germ and birth.

When, however, we affirm that the triumph of maternal love in the continued companionship of a male child, constituted the solution of the social problem before us, we do not intend to convey the idea that it lay solely in the fact of a simple inclusion of male offspring within a group. Such a condition, however significant in the actual case, has nothing in itself but what is common to the family economy of many animals. It is the normal one, for instance, among many pithecoids, as baboons, &c., where we find the younger males still form an integral part of the horde, although denied all marital rights. But, however inexorable among such species the temporary separation from the females during the actual season of rut, there is at other times a propinquity in amity as members of the same herd, which lessened doubtless the fierceness of the strife during the periodic play of passion, a truce in fact admitting of peace and alliance in offence and defence during most of the year.

With our ancestors there could be no such healing pause, the unnatural sexual modification of the race had rendered it impossible. The non-periodicity of the sexual function in rut would have made the whole year, with two adult males in presence, an interval of trial insupportable to the mere brute. With this race the banishment of the youth would be for all time, and the loss would be not only that of an ally, each exile would become an active enemy. Now we have hinted that the importance, in a potential sense, of a movement towards union, in such creatures, arose precisely from the fact that, on account of the intensity of the relations between male and male, and especially between father and son, their amicable conjunction was only possible under such exceptional conditions as would probably conduce to its stability whenever it did take place.

Indeed such inchoate rule or habit, a corollary of the early idea, as reigns in regulation of marital rights among lower creatures, would not be fully adequate for this higher creation. With lower creatures, might alone confers rights, which feebler force ever seeks each chance to invade, all stratagems being legitimate as a means to that end. With inchoate man such imperfect rule of action had become utterly impossible. The greater endowment in memory and reason entailed a too fatally added hate on non-compliance. For inchoate men the requisite law required such further exactness in definition as should leave no doubt of a meaning, not only to be understood, but to be accepted and obeyed unconditionally.

For between this father and son there was yet no real peace, only a truce, and that enduring but so long as the latter respected those marital rights of the former which we found extending over all that was feminine in the horde. The intelligent acceptance by the intruding junior of the sole right of the senior to union with the females of a group, was its sine qua non, which the dawn of intellectuality in the race as inevitably imposed as it happily permitted. Such a step in advance as a possible obedience, ex animo, to such a law would be immense. Therefrom would issue the vital point of a conception of moral reserves in marital rights as regards the other sex; the germ of a profound and fundamental difference between brute and man. For the first time in the history of the world we encounter the factor which is to be the leading power in future social metamorphosis, i.e. an explicit distinction between female and female, as such. The superlative fact, indeed, in relation to our general argument, appears – namely, that certain females are now to become sacred to certain males, and that both (nota bene) are members of the same family circle.

But what shall be, in such an age, the notes of a law conveying this noble sentiment of sanctity, which, disarming jealousy, could permit peace where before strife reigned? How give the outer expression of the inner feeling, now aroused, of a change in the past intersexual attitude of certain group members? Whence borrow the eloquence which shall ordain rules in restriction of intercourse whilst yet, for Homo Alalus, they must needs be mute in expression.²⁸³ In the primal law alone, as I hope in its portrayal to show, can each condition be comprised and found as such. It will be marked and recognised by a physical trait whose presence is as significant and imperative as it is characteristic of the epoch. For a sentiment of restraint in feeling, whilst articulate speech was yet lacking, could only be expressed by restrictive checks in act and deed, requiring mere visual perception for interpretation – acts we may here note, which, as insulating the individual, would also inevitably tend to consecration.

Now we mentioned in our first chapter that, in connection with the primal law, certain cases of so-called avoidance, and especially that between near relatives, would have interest for us and probably afford aid in proof. We drew attention to the strange features marking these customs, which had rendered their origin a source of wondering conjecture to all inquirers. It may be that precisely the actual anomalism of these characteristics may render them eloquent in our case. In view of our past argument, in very deed, nothing now becomes insignificant in these quaint rules of non-propinquity between certain near relations; nothing inexpressive in the ordinance of non-recognition between individuals well known to each other; nothing not suggestive in the dread of mere contact between those whom nature would place closest together, no lack of import in the strange taciturnity so incongruous with our garrulous later days of unloosed tongues. There is a possible vestige of a past era of dumb show in their eloquent muteness; of connection in their actual utter unreason with a long dead past of all unfamiliar habits and manners. Further, is verily aught lacking, in these latter-day customs of avoidance, of the necessarily archaic features of a possible primeval law? If these in truth were still existent, would they not, with such traits in common, be simply classed with those? Undoubtedly so, as it seems to me.

Now in the course of our argument it has appeared that the inclusion of the son as the second adult male in a group would evolve, as the most primitive rule of action, restriction of intercourse between its component females and the intruder. But in such a group, the former would necessarily be to the latter in the relation of mother and sisters. Such restriction, again, taking the only possible form, would be avoidance of these relations, and thus there is a concurrence in resemblance with that particular habit of avoidance on which we enlarged in our first pages, viz. that between brother and sister (and now less strictly), between mother and son. Do we not thus seem to lay a finger on an actual law, still an every-day working factor in savage life, which is not only identical with, but is in very deed the primal law itself, in form at least? The acceptation of such intolerably irksome restraints as avoidance, in the daily economy of savage life, has seemed forcibly to imply a fundamental cause of profound depth. This cause now seems laid open to us. The unaccountable and seemingly unreasonable restrictions on intercourse which mark it thus betray their appropriate origin in a time of comparative unreason.

This then, the primal law – avoidance between a brother and sister – with appalling conservatism has descended through the ages (in conservance of form, if not of ultimate purpose). It ordained in the dawn of time a barrier between mother and son, and brother and sister, and that ordinance is still binding on all mankind [but in Egypt and Peru, for example, the opposite of this rule, for special reasons, has prevailed]. Between these for ever, a bit was placed in the mouth of desire, and chains on the feet of lust. Their mutual relationship is one that has been held sacred from a sexual point of view, in most later ages. It only remains for us to repeat that it follows that this law, as applied in the group composed of a single family, is, as we pointed out, the parent of exogamy; continuance within the group necessarily and logically entailed marriage without; but, again as we said, it was itself the offspring of the early idea. For this idea, in its assumption that sovereignty in marital right was compatible with solitude alone, was shaken to its depths when a second presence threatened rivalry, and demanded remedy in the action of law, which it has seemed to us could only take the form we have tried to portray²⁸⁴ in the primal law.

NOTE TO CHAPTER IV

To the Editor this theory seems worthy of the ingenuity of his old friend and kinsman. Granting that early man was a speechless jealous brute, dwelling in groups consisting of a patriarchal beast, and all the females whom he could catch, and all the females whom he could beget; granting that he drove all his adolescent sons out; and finally (under the circumstances described) kept one or a few sons at home, his rule would tabu all females of the group to these sons. Otherwise there would be a fight.

The sons would have to bring in mates from without – the result is Exogamy. But Mr. Atkinson does not observe the numerous tabus existing among savages, on ordinary (not sexual) intercourse between men and women; as if each individual, of each sex, was or might be dangerous to each individual of the other sex; that is no idea of our speechless brute ancestors, of Mr. Atkinson's hypothesis. These tabus do not amount to absolute avoidance, but they do amount to very marked restrictions; for example, on eating together, or sleeping under the same roof, even where husbands and wives are concerned. For the facts, to save repetition, it is enough to refer to Mr. Crawley's book, The Mystic Rose. Now if these less rigid tabus between the sexes (which Mr. Atkinson noted in his observations on the life of New Caledonian natives) arose in the general savage superstitious dread of everything not a man's or woman's own self, they might become more rigid as propinquity increased. The most dangerous female would be the female who had most chance of being dangerous, by virtue of propinquity, namely the sister. She would therefore be the most strictly barred. The closest of all relations, that of lover and lover, and man and wife, would be most severely guarded, as most dangerous, by tabus. All this would happen (granting the verifiable condition of savage superstitious dread) even if Mr. Atkinson's theory of our speechless beast ancestors' way of life were wrong.

We should probably find the effects (Avoidance and Exogamy) even if the primeval causes postulated by him never actually existed. Moreover any avoidance between mother and son that may exist (as in the case of the mothers of chiefs, in New Caledonia, and their sons) is perhaps no more than part of the general rule of restricted familiarity between the sexes, whether that rule arises from a superstition, or from the circumstance that men and women sometimes 'disturb each other damnably,' as Lord Byron remarked to his wife. It might be argued that the exogamous prohibition is only one aspect of the general totem tabu; and that, in the case of brothers and sisters, incest against the totem tabu needed to be guarded against (as most likely to occur) by precautions of avoidance peculiarly stringent. These precautions, then, would not necessarily come down from the time of our hypothetical speechless beast ancestors. They might come down from that time, but the descent, it may be objected, is not necessary. The rules might have arisen among men as human as we are – Totemists. On the other hand, it might be argued for Mr. Atkinson that his hypothetical groups must be infinitely older than Totemism. When totem names were imposed on the earlier groups, the totem name and mark would only be a method of distinguishing group from group, probably becoming the germ of later superstitions by which everything connected with the totem was tabued, in each case, to the groups bearing its name. Either alternative hypothesis is easily conceivable: on the whole, I prefer the theory that exogamy arose, or an exogamous tendency arose, as in Mr. Atkinson's hypothesis, and was later sanctioned by the totem superstition.

As to brother and sister avoidance, if there is an 'instinct,' as Westermarck thinks, against marriage between near relations, if 'close living together inspires an aversion to intermarriage' (pp. 352, 545), then the avoidance of brother and sister would make them especially apt to fall in love together. But they don't. Brother and sister, under the tabu, are the greatest possible strangers to each other. They have not 'lived in long-continued intimate relationship from a period of life at which the action of desire is out of the question' (Westermarck, p. 353). They have done precisely the reverse. So why they do not fall in love with each other is what we have still to explain. All the rigid systems of brother and sister avoidance exist, it would seem, to prevent what never would have occurred, had the young people been allowed to grow up together. For in that case they could have had (we are to fancy) no erotic desires towards each other; that is Dr. Westermarck's idea. But could they not? He tells us that, among the Annamese, 'no girl who is twelve years old and has a brother is a virgin' (p. 292). And the Hottentots do not 'marry out of their own kraals' (p. 347).

Then where are we, exactly? If there is 'a real powerful instinct' against love between persons who 'have lived in a long-continued intimate relationship' from childhood – why does the instinct fail to affect Annamese and Hottentots, for instance? And if to be absolute strangers to each other is apt to make two young people fall in love, why do New-Caledonian brothers and sisters never do it? (Compare Mr. Crawley, The Mystic Rose, pp. 444-446.)

CHAPTER V
AVOIDANCES

Results in strengthening the groups which admit several adult males. – Disappearance of hostile band of exiled young males. – Relations of sire and female mates of young males now within the group. – Father-in-law and daughter-in-law avoidance. – Rights as between two generations. – Elder brother and younger brother's wife avoidances. – Note on Hostile Capture.

If we can admit the argument as to the sequence of incidents which thus led to the primary amicable conjunction of two males within the same group, it is not necessary to enter very minutely into the exact manner in which it would grow into a habit and spread throughout the land. We may surmise that, in spite of the advantages presented, its progress would, from the isolation of the groups, and their mutual hostility, be very slow. This would specially be the case if, as with physical variations, this point of departure in social development was a purely individual one, and so had to spread from a single centre by natural selection acting through a beneficial variation. It is, in fact, difficult to conceive, in view of the series of the abnormal factors we have supposed necessary for the genesis of such evolution, that any coincident departure of the same nature would be likely to occur in any other centre. It is even certain that the full possible benefit of the innovation would not be able to make itself felt even in the group of its creators. It is easy to understand that, in spite of the shield-like love of the mother, there would be friction between father and son in such unfamiliar circumstances, not only novel to the individual, but unhabitual to the race. In fact, it may be taken for granted that on the part of the father there was at first only a sulky tolerance of the new arrangement, a tacit but very unwilling acquiescence in the presence of the son.

On the part of the son would exist a watchful reserve, with an ever-haunting sense of insecurity, born of a novel and precarious situation. Even on such terms, however, and with what little might be of conciliation between the two, it is evident that a momentous forward step has been taken: the powers of the group in offence and defence, as against outsiders, would be enormously increased;²⁸⁵ the fire of youth and the wisdom of old age for the first time joined forces, and paternal experience comes to the aid of filial courage and ardour. On the death of the patriarch the family found a natural protector, and what potential germs of advance, material or spiritual, had been evolved, would remain intact.

The real significance of the circumstance of such conjunction will, however, be found to lie in the character of its consequences as entailing further progress. Thus we have suggested that the original innovation consisted in the toleration of the presence of a single male offspring. But the way was evidently thus paved for the acceptance, at least in later generations, of others of the young males, although at first only of those who, not too much rivalling the fathers in power, would offer least grounds for jealousy. Now if we may accept it as an axiom in the matter of social progress in this race, that everything depended on aggregation of numbers in peaceful union, then such renewed inclusion presents itself in an important light. When it grew into a habit, the vast increase in power with every succeeding generation to a group, which is implied in the fact of each male child counting as an unit of strength, becomes evident. The new superiority to the original Cyclopean form of family, with its solitary male head, is enormous. The extinction of the latter type would only be a matter of time, it would finally result from the easy capture, by better organised rivals, of their females. With the gradual disappearance of those who clung to the old order, the leaven of progress would spread in permanence through the whole mass. It would eventually become the rule that all the male offspring should remain within a group, to form henceforth an integral part of it.

This result would be very important from another point of view. Such retention of sons would lead to the elimination of one of the greatest past elements of disorder – that band of exiled young males, which we found as a constantly menacing adjunct of the Cyclopean family, would cease to exist. But, again, a very slight reflection will enable us to perceive that such a modification as the presence of these celibate young males in the family circle must soon have entailed consequences in social evolution of a new and strange complexion, thoroughly embarrassing, in such an era, to those interested. Primitive social economy was now, in fact, to enter on phases presenting such possibilities of complication and disruption as must forcibly have led to the continued evolution of law in regulation. Such complications will become at once apparent on an examination of the probable sequence of events in the family life of the race. Such law in regulation will be shown to have been evolved, and, as before, to be still existent as a rule of action in these latter days, and with all those weird characteristics of mutism and general anomalism which prove its archaic origin.

Granted a group consisting of a patriarch whose marital rights extend over all its females, and of young males whose attitude,²⁸⁶ from a sexual point of view, is marked by the strict reserve ordained by the primal law, it by no means follows that such celibacy of the young males would extend beyond the feminine element of their own troop. On the contrary, the whole of the outside world remains free for them to choose from. In fact, it is evident that it is there, in the world outside of the group, that their future mates must be found. On the component females of the parent horde a ban has been for ever laid, but all else of womankind are free of the interdict; they are beyond the law, and 'Sin is not imputed where there is no law.' Here, then, in the outer world, would their wives be sought. The complication we have mentioned would arise when, after successful captures of females by the young males, captures which it is hardly necessary to state would have been 'hostile,' the introduction of their captives within the parental group took place. The presence of females not to be his own within a circle where all that was feminine had ever been his in undisputed right, would certainly stir to its depths the soul of the Cyclopean type of parent. Such a situation must in its inception have caused a friction full of menace to the new order of things.

The only solution would be, as we have said, in the further evolution of law in remedy. We shall, as before, expect to find the law ordaining restrictions on intercourse between certain individuals, and marked with the archaic characteristic of mere visual action being sufficient for its interpretation. Such, then, as it was, we still find it, in the habit still common with many races of avoidance between father-in-law and daughter-in-law. In mute avoidance between these two could peace alone endure in the new crisis. The new rule implied the development of the same respect by the father for the marital rights of the son, as we have seen the primal law to have had for effect as regards the paternal prerogatives. Natural selection would come into play in the consolidation of this new stage in legislative evolution. For the group which first adopted such a modus vivendi would gain so great an advantage with each generation, in point of numbers alone, as would quickly give it supremacy. On the other hand, the forcible infringement by the father on the rights of possession by the sons in their captives, would simply result in the withdrawal of the sons and their women. Hence disruption of the group, and a fatal retrogression to the archaic type with all the weakness implied in a sole male component.

Here then we find renewed, in act of custom, another bar to intercourse between certain individuals of different sexes. And not only as a peace-conferring covenant would the fresh step in progress be important. It marks another stride in advance from brute to man, in the further recognition of points of difference between one female and another from a sexual point of view, the genetic evolution of which sentiment, in the primal law, foreshadowed such latent potentiality as already distinctive of mankind alone. Social advance to this stage has entailed the genesis of law in definition of respective marital rights as between the two generations, viz. fathers and sons, but further evolution in regulation of the individual right, as within the generation itself, is evidently indicated. For all members of the latter, as is the case to-day with many lower people, would be considered, de facto, a class, in which all are regarded as brothers, own or tribal, whose interest in all things regarding their classificatory rights would be in common.²⁸⁷

Such would be more especially the case in respect to female captives, whose capture would be the act of all. Here sexual jealousy, if uncontrolled, would inevitably lead to repetitions of that violent segregation of the members which occurred under the same circumstances amidst their primitive prototypes – i.e. that band of isolated young males, contemporaries of and exiles from some Cyclopean family. We may, however, surmise that, now or soon, the general development of intelligence and advance in social feeling would permit the action of the necessary rule in remedy. That rule would doubtless take the form we still find existing to-day for regulation in parallel circumstances, a rule which simply accords priority of right in accordance with seniority in birth. Such right would in itself accrue naturally as with other animals, from the fact that superior strength is found with greater age. This prior possession is not incompatible with an amicable recognition of the privilege of later participation by others. If such recognition took place in favour of the rights of the juniors, whilst they again peacefully accepted the larger pretensions of the seniors within their class, then natural selection would again act in their favour by the elimination of groups unable to abide such conditions. The arrogation of sole possession could but lead to the disintegration of the troop.²⁸⁸

Another solution of the problem of rights as between brothers may here be noted: it is that which is common to such widely separated spots as New Caledonia and Orissa, viz. the law of avoidance between an elder brother and a younger brother's wife. It is one of the most strict and severe. It is, however, incompatible with group marriage, which we are now dealing with.²⁸⁹ It marks the genetic stage of monandry.

So far, then, we have thus traced the evolutionary process of group formation – and we seem to find confirmed that affirmation as to the primordial order of succession in the genetic growth of custom which I ventured to submit in my first pages, viz. primo: the existence of an early idea of concupiscent lust, distinctive of the male head of a group, which led to his pretensions in marital right over all its component females in necessary incestuous union; secundo, the evolution of the primal law (with what little of originally ethical intention is now immaterial), in protection of such right when threatened by intruders; tertio, its acceptance by the latter, and, as an inevitable sequel, their indispensable capture of outside females as sole possible mates.²⁹⁰

But then this question of the absolute necessity of the rape of strange females as mates by the young males of a group, opens up to view another remarkable coincidence of effect in custom, still enduring to our day. As such it may furnish a clue to a feature in savage habits, to which we have already alluded as the cause of more discussion, concerning its origin, than any other. For habitual hostile capture of females outside a group by its male members, with a coincidental bar to sexual union with its component females, seems simply a definition of that habit among many actual peoples which has been called Exogamy by Mr. J. F. McLennan. Hence comes the evident corollary to the argument that the primal law and exogamy stand to each other in the mutual relation of cause and effect. We stated that if this was in reality the case, and if here we have the origin of marriage outside the group, then the novelty of the view, and the fact that it finds itself in opposition to other theories on the matter, weighty from the eminence of their propounders, would still require the production of a clear series of proofs in its favour if it was to be accepted. Such proofs, however, we predicted, would with research be found abundantly. We hope that already in our thesis, as far as it has gone, we may be considered to have advanced some such testimony in the seemingly necessary identity of custom, in form at least, in a hypothetic ancient and an actual modern era. There is surely here more than mere fortuitous coincidence in social evolution.

It seems, indeed, a legitimate inference that the divers habits of avoidance which we have cited, intelligible only by their congruency with such phases of genetic growth of custom as we have surmised, whilst presenting features utterly anomalous as latter-day creations, are in reality of the archaic origin we would assign to them. Their extraordinary vitality, which becomes almost bewildering to contemplate, may be explained by the fact that, as the first steps in progress, they would be necessarily woven into the whole social fabric.

It remains to be seen if, in further unravelling its tangled web, other threads of actual custom may not be found as apparently eloquent of a far distant, unfamiliar past, in their present abnormal features; other usages in every-day lower (savage) life, which in the light of a primal law shall furnish an unexpected solution of many perplexing problems in social evolution. If it can be shown that their inception would have been in happy accordance with the resolution of necessary incidents in evolutionary progress, may we not legitimately infer both that such customs thus had their origin, and again that these incidents really occurred? Our further research into the development of social institutions will point out indisputably, that primitive society was now on the eve of a succession of events in social order, presenting quite a series of menacing complications – their resolution will seemingly entail inevitably the continuous evolution of law in remedy, which law would have presented features identical with the actual laws of avoidance and others.

NOTE TO CHAPTER V

Marriage by Hostile Capture

Mr. Atkinson accepts, for the excessively early stage of semi-human society with which his hypothesis deals, the necessity of procuring mates for the young bucks by capture from a hostile group. Now Dr. Westermarck writes, 'Mr. McLennan thinks that marriage by capture arose from the rule of exogamy;' and Mr. Atkinson holds that it arose from the necessity of the case. The old patriarch allowed no female born within his group to be united to his sons. Dr. Westermarck says, 'It seems to me extremely probable that the practice of capturing women for wives is due chiefly to the aversion to close intermarrying … together with the difficulty a savage man has in procuring a wife in a friendly manner, without giving compensation for the loss he inflicts on her father' (Westermarck, 368-369). He admits a period when 'the idea of barter had hardly occurred to man's mind,' But Mr. Atkinson is thinking of a state of affairs in which the idea of barter had not occurred at all. Even at Dr. Westermarck's stage of the dawn of barter, 'marriage by capture must have been very common.' But Mr. Crawley argues that because, in his opinion, 'types of formal and connubial capture' are not survivals from actual capture, therefore 'the theory that mankind … ever, in normal circumstances, were accustomed to obtain their wives by capture from other tribes, may be regarded as exploded' (Mystic Rose, p. 367). This dictum does not affect Mr. Atkinson's theory. Semi-human beings, in the conditions imagined by him, might be obliged to get their wives by capture, whether existing types of so-called formal capture are survivals of actual hostile capture or not. If Mr. Atkinson accepts the formal abductions as survivals of real captures and so as proofs of his argument, and if such formal abductions are not survivals of real capture – still, as Dr. Westermarck says, even after the supposed stage of semi-human life, 'marriages by capture must have been very common' – in Mr. Atkinson's hypothetical still earlier stage, they must have been universal.