Social Origins and Primal Law

However, its occurrence in such cases may be traced to sources which show that here the exception proves the rule. Indeed, the fact of its occurring almost solely among the higher classes [as among the Incas], points clearly to a probable connection with an idea of pride of race, or a question of inheritance. Now we may note that with descent in the female line the right of direct succession to the paternal name, or place of power, or property, is not in the gift of a father. The only legal conveyers of the blood right within him are females in whose veins is to be found that same blood, i.e. his mother and sisters. However regal a personage his child by a foreign woman, it is cut off from that heritage, nor in connection with this offspring can pride of race find a place. Thus, then, we may understand how union, although illegal, with a sister was so frequent in, and even enjoined on, the royal race amidst certain peoples. The purity of the royal blood thus alone remained intact, and from a king was born a king. For it is a remarkable fact which must be more than a coincidence that amongst these very peoples, such as the ancient Egyptians, Persians, and Peruvians, whose rulers were addicted to the habit, female descent was the custom [?]. At least I am not personally acquainted with any exception to the rule. In consonance with this descent through females only and where any approach has been made to gynæcocracy, we shall expect to find that there would be only one legal wife. Such was indeed the case also in Ancient Egypt, there is no instance of two consorts given in any of the inscriptions. This fact, taken in connection with that which conduced to incestuous union under this form of descent, invites us to make a digression in a curious reflection, not however entirely foreign to our general theme. For the same effect as regards inheritance on the offspring which would be produced by union with a sister, would also occur in marriage with a daughter whose parents had been themselves brother and sister. Thus we may guess the lineage of the unknown mother of the great royal wife Nefer-ari, daughter and consort of the Pharaoh of the oppressive Rameses the Great. This daughter had, in fact, been probably chosen among others for wife precisely because her mother had herself been both his sister and his wife.298

We may now renew our affirmation that paternal incest as a custom, is no longer generally recognised anywhere. The primitive unquestioned marital right in incest is quite unknown. It has disappeared, and so completely have even traces of its past general occurrence faded, that doubts of the reality of the fact may be pardonably entertained. The question is of importance in connection with our thesis, for as may be seen the whole theory of the primal law is based on the idea of its primitive universal prevalence. We hope, however, to have shown the inherent possibility of the fact as being a habit common to all the mammalia – and it has seemed against reason to suppose that man's ancestor, whilst in the animal stage, would be an exception to so general a rule. Our further argument has adduced circumstances in favour of a final decay so complete that oblivion could not but follow.

Perhaps not the least remarkable fact to the anthropologist in connection with its life and death, is that only as between a father and a daughter, of all blood relationships, do we find no trace among actual peoples of any law in Avoidance. The fact is significant, as we may thus surmise that the process of decay was very long delayed, in fact to a time when such inchoate form of law as Avoidance had become an archaism, or until general progress had rendered any law unnecessary.

CHAPTER VII

TRACES OF PERIOD OF TRANSITION – AVOIDANCES

Survivals in custom testify to a long period of transition from group to tribe. – Stealthy meetings of husband and wife. – Examples. – Evidence to a past of jealousy of incestuous group sire. – Evidence from Teknonymy. – Husband named as father of his child. – Formal capture as a symbol of legal marriage. – Avoidance between father-in-law and son-in-law. – Arose in stage of transition. – Causes of mother-in-law and son-in-law avoidance. – Influence of jealousy. – Examples. – Mr. Tylor's statistics. – Resentment of capture not primal cause of this avoidance. – Note on avoidance.

With a custom so deeply ingrained as incest would be in the nature of man's ancestor, still doubtless vastly animal, we may indeed surmise that the process of its decay was long and tedious. The temptation, as we have said, to such easy procuration of a mate in comparison with the danger and comparatively scanty results of capture, was very great, whilst the continual propinquity of father and daughter would tend to constant recrudescence, especially in default of any trace of law against it. There must, then, evidently have been a transition era of vast durance, between the type of the isolated consanguine group whose only resource in matrimony was exogamic hostile capture, as the outcome of the incestuous lust of its solitary male head, and the all-embracing tribe composed of an aggregation of several groups, and possessing thus ipso facto all the necessary elements of an endogamic connubium quite incompatible with such incest. In such a tribe, a group of women in many cases formed the pivotal centre, and capture was often found only as a form in survival. Is it possible to retrace the main features of an epoch of such evident importance in social evolution? In view of the fact that, in the past course of our argument, such law as would seemingly have been necessarily evolved in regulation of each step in primitive progress has been found identical in form with some actual savage custom, may not a deeper investigation of savage custom disclose further co-ordination, and prove equally fertile in interpretation of the past? Whilst, again, many obscure observances in actual lower life, in consonance with such archaic genesis, may take a rational form, though the origin seems apparently lost for ever.

Such research will, I think, clearly show that many social features in modern savage habit afford internal evidence that, as a fact, they could only have arisen in such a transition era. They also bear marks of a very lengthened evolutionary process, and thus confirm the natural idea of a halt of portentous length at the threshold of the present haven of comparative social rest. We shall doubtless find that the door left ajar by the entrance of the outside suitor was not to yield further with ease to the pressure of new needs, half-hearted as men would be, from the conservative force of old ideas, of incest and entire masculine dominance.

There is, for instance, one curious trait in actual savage custom which evidently dates from a very early stage of this epoch. It is that of the strange forms of 'stealthy' intercourse, being the indispensable preliminary symbols of the legality of an after marriage between the resident female of a group and an outside male. These forms are well known to anthropologists as occurring among many lower peoples. Here we find that the visits of the male suitor are supposed to be distinctly clandestine, taking place only by night, although in reality the fact is perfectly in the cognisance of the whole group. Now such fugitive and secret meetings are exactly what would have taken place when a group had arrived at a stage in which, although filial incest was decaying as a custom, there were still recognised certain marital rights over his daughter by the living father; when, in fact, tolerance of the presence of the outsider was yet in a tentative stage – and he was still regarded with suspicion, if not disfavour.299

In consonance with the view we have advanced of the circumstances attending the entry of an immigrant suitor, it has seemed to ensue that his position would have been quite dependent, and himself considered as a foreign element. That such was actually the case seems again proved by another trait in modern custom, whose genesis, however, was of very much later date, and when speech had made some progress. In our own day clandestine intercourse, as above described, may continue to pregnancy. On the birth of the child alone does the father become recognised as part of the group. But even so his nomenclatory power as regards his offspring is absolutely nil. Far from giving a name to the child, his own is taken from his offspring. Till now, in fact, he has been nameless; in future he will be known as the father of so-and-so, of Telemachus, in the case of Odysseus. To this point we will, however, have to return when we arrive at the question of the evolution of personal descent from that of descent recognised by locality, which we consider to have been the most primitive form. [Mr. Atkinson probably means descent from a local group, say Crow, not descent denoted by a place name, as 'de Rutherford.']

There is another trait in actual custom which also could only have acquired its most remarkable features in this era of change, and that is hostile capture itself, in its legacy of those 'forms' of capture which we find connected with more peaceful connubium all over the world. Such 'forms' have rightly been considered as mere survivals, and thus in agreement with our own theory capture is generally accepted as the earliest form of outside marriage.300 But in some minds the brutality necessarily attending real capture, and its occurrence solely among very low races with whom any idea of sexual restraint is expected to be quite unfamiliar, has simply connected the process with the general lawlessness which, amongst such peoples, is supposed to characterise the relations between the sexes. Its occurrence in form of survival among higher races has been considered a meaningless ceremony, and its evident symbolism in legality dismissed as incredible. Students are, however, aware how much in error is the idea of utter lawlessness in connection with the marriage relationships of any savage race. On the contrary, as is well known, the list of prohibited kindred is not only much wider than our own, but no stage in the marital arrangements is without irksome and minute legislative restraints, strictly limiting and defining the rights of each individual, male and female.

To other minds the fact that a 'hostile capture,' presenting as its most characteristic feature an utter violence, should ever have been constituted into a symbol of legality in marriage, has given rise to much perplexity. Mr. McLennan in fact remarks – 'It is impossible to believe that the mere lawlessness of savages should be consecrated into a legal symbol' – an assertion which we may accept, however little we are prepared to accept his general views on early society. It is evident that the whole difficulty has arisen from the apparent complete incompatibility of a seeming method in violence with a virtual act in law. The hypothesis we have presented of the 'primal law,' and its exogamous sequel, would seem however to throw a new light on the matter. All unions within the group being by the action of primal law, as we have shown, considered incestuous and illicit, marriage could only take place with an outside mate. The presence of a captured female within the camp would thus, as we see, actually constitute in itself a proof, and the only one possible at the epoch, of the legal consummation of marriage as ordained by the primal law. It is thus easy to see how a form of capture should be retained as a symbol of legality in later connubium. Its continued vitality results from the intense conservatism of lower peoples, and from the fact of the halo of prowess that surrounds it.

Its evolution as a symbol only arose, however, when, during the transition era, by the conjunction of groups into a tribe, friendly unions were possible. It would not have occurred with the earliest forms of horde, for these were isolated and hostile, and real capture itself was the sole form of marriage; nor would it have occurred with that later type, in which, with matriarchal descent, the relative positions of males and females were reversed, as far at least as suit in union is concerned.301 It took its rise with that other great type of group characterised by patriarchal descent, which in all the after history of the world (for, as we shall see, their evolution was coincident and had for cause the same factor) was to dispute supremacy with that which accepted uterine descent. Here, as in the original type, the male continued to preserve his predominance and continued its traditions of capture.302

There remain other actual traits whose connection with this era is equally evident. For instance, avoidance between father-in-law and son-in-law could not have had its genesis in the very earliest type of assembly. Whilst parental incest ruled as the custom, each group must have been isolated from and hostile to every other. These two could never have been in habitual presence one of the other. But, again, the habit could not have arisen in the later form, as represented by a tribal horde with uterine descent, as primitively composed of only two intermarrying groups, each of which formed a clan distinguished by a different totem emblem.303 The relative clan-relationship of each member of the horde would, by the aid of this distinctive totem, be distinctly defined, and, with female descent, the father-in-law and son-in-law would find themselves members of the same clan [phratry]. As thus being both males and of the same 'phratry,' there could not possibly be avoidance or enmity, real or simulated, between them.304 By all the sacred ties of blood [phratry] they were conjoined in offence and in defence. Further, where descent is uterine we find that the disposal of a daughter is in the hands of the mother or maternal uncle alone – the father has no voice whatever in the question, nor any part in her value as an object of barter or sale. Thus he is perfectly disinterested in the matter of his children. So far from being in disunion with his son-in-law, his sympathies, in case of a tribal quarrel, would be certainly with him. But the younger man, in internal quarrels, might be found fighting to the death with his own real father, not (as I have seen it stated in mention of just such an incident)305 because he has become part of his wife's clan,306 which could never be, but because, with descent through the female, his father would be a member of the different group and of other blood to himself, and to his father-in-law also.

The genesis of this particular avoidance (father-in-law and son-in-law) took place during that stage of the transition era, when, incest still lingering, the immigrant suitor was so far acknowledged that his entry into a group was not always delayed till the death of his proposed father-in-law. As they were thus possible rivals there was a chance of friction, only to be averted by the law in question. Avoidance would arise at the same time between mother-in-law and son-in-law, but this time as a measure of protection for the marital rights of the husband of the former.307 It could not have arisen in the early Cyclopean era. The son-in-law as such, could evidently not have had existence when the mother's daughter was the father's wife, nor, later, when, with the general recognition of the classifactory system, there arose a strict interdiction of sexual union between members of different generations. There would in such circumstances be no further risk of danger from the jealousy of a father as regards his wife, and the husband of his daughter. It had its origin in the fact that when the outside suitor had originally been granted entry, it would only have been after the death of the patriarch sire, and as a mate for his widowed females. But as these would include both mother and daughter, there would thereby be created a precedent, so to speak, which required regulation, when later, with the decay of incest, the living father remained in presence. In fact, avoidance between mothers-in-law and sons-in-law defined fathers-in-law's rights.

We may here again note another step in advance to purely human attributes in the fresh distinction between female and female, which has now again arisen as between a mother and her daughter as regards the immigrant suitor. But whereas with these, as indeed with most of the cases of avoidance we have studied, sexual jealousy has been the primary cause, we may now trace the action of quite another factor, which would certainly tend to a conservation of the habit, and in a manner intensify it. This would be association of idea with hostile capture.

As regards the father-in-law, however, the custom, as far as capture is concerned, would not occur with female descent, for the reasons we have already given of clan kinship in such a case. It might, however, be found as a factor to a certain extent with male kinship, for here it is the father-in-law who is of the same clan as his daughter, and thus interested in her negotiable value. Thus it is possible to imagine enmity between him and her possible captor, who is also of a different clan from himself. As regards avoidance of mother-in-law it has again, perhaps, been accentuated by forcible capture. The effect, however, in relation to descent would be exactly the reverse of that with the father. With early male descent in the primitive tribe as composed of only two clan groups [phratries], it is she who would be of the same stock as her daughter's husband, and the habit would not arise, the captor is, in fact, a member of the tribe from which she herself has been stolen; although later, when more than two clans were conjoined,308 it might happen that her son-in-law belonged to another, and here there might arise feelings of animosity. With uterine descent the case is certainly altered. As a mother, and as member of a clan different from that of the male suitor, the figure of the son-in-law might be dreaded as a possible captor of her daughter and other young female members. But here again a difficulty arises, for when the capture becomes an accomplished fact, the mother-in-law and son-in-law would probably not meet again, at least in primitive times: he belonging to the group having patriarchal descent, with capture as the rule; she, to the matriarchal, where the female is normally immobile, between which two forms of group no friendly intercourse could occur. The fact of avoidance in any form presumes contiguity or the habitual presence of the individuals concerned, and this in such a case could not arise. So as in Tylor's figures we find that in W to H, as the latter is completely cut off from his family, there is not one single case of avoidance between the wife and the husband's relatives. It is evident that the same rarity of contiguity must have arisen also with the father in male descent; there is here certainly cause of disagreement in the rape, but if the parties see each other no more there would be no necessity of evolution of avoidance to mark the fact. Indeed, I cannot help thinking that the importance of association with hostile capture has been much exaggerated as a factor in the evolution of Avoidance. The question of 'residence' and 'descent' has not been held sufficiently in account by those who insist on the capture as the sole cause of avoidance. Despite the eminence of the authors favouring this view, I would venture to submit that the balance of proof would much favour sexual jealousy, which we have heretofore found the sole motive power in all changes.

Those who would uphold anger roused by capture as the cause of avoidance with the wife's relatives, for instance, must be prepared to show that it would be strongest with the one who was most deeply interested in the wife, one whose voice in her destiny was of greater power than her own mother's, and that was her maternal uncle, the head of her clan. Now I have failed as yet to find a single trace of such a case as avoidance between the latter and his sister's daughter's husband.

Again, jealousy, or a desire for regulations in matters of sexual union, will explain certain details in the accounts we have received of individual cases which seem otherwise obscure or irrelevant. These have been overlooked, as they are minute, but from my point of view are full of significance when closely examined. Mr. Lubbock says,309 quoting Franklin as to American Indians: 'It is extremely improper for a mother-in-law to speak or even look at him, i.e. her son-in-law.' Quoting Baegert: 'The son-in-law was not allowed for some time to look into the face of his mother-in-law.' Further, 'among the Mongols a woman must not speak to her father-in-law, nor sit down in his presence. Among the Ostiaks, Une fille mariée évite autant qu'il lui est possible la présence du père de son mari tant qu'elle n'a pas d'enfant, et le mari pendant ce temps n'ose pas paraître devant la mère de sa femme' (Pallas). In China the father-in-law after the wedding-day never sees the face of his daughter-in-law again, he never visits her, and if they chance to meet he hides himself. Among the Kaffirs a married woman is required to hlonipa310 her father-in-law, and all her husband's male relations in the ascending line, i.e. to be cut off from all intercourse with them.

Again, in Australia, it is compulsory on the mothers-in-law to avoid the sight of their sons-in-law, by-making the former take a very circuitous route on all occasions, to avoid being seen, and they hide the face or figure with the rug which the female carries with her. So strict is the rule, that if married men are jealous of any one, they sometimes promise to give him a daughter in marriage. This places the married man's wife, according to custom, in the position of mother-in-law, and renders any communication between her and her future son-in-law a capital crime.311 Also among the Sioux or Dacotas, Mr. Philander Prescott remarks on the fear of uttering certain names. The father and mother-in-law must not call their son-in-law by name, and vice versa, and there are other relationships to which the prohibition applies. He has known an infringement of this rule punished by cutting the offender's clothes off his back and throwing them away. Harmon says 'that among the Indians east of the Rocky Mountains it is indecent for the father or mother-in-law to look at or speak to the son or daughter-in-law.' Among the Yakuts, Adolf Erman noticed a more peculiar custom. As in other northern regions the custom of wearing but little clothing in the hot stifling interior of the huts is common there, and the women often go about their domestic work stripped to the waist, nor do they object to this disarray in the presence of strangers; but there are two persons before whom a Yakut woman must not appear in this guise, her father-in-law and her husband's elder brother. Again, quoting J. G. Wood, he says the native term for these customs of avoidance is, 'being ashamed of the mother-in-law.' The Basuto custom forbids a wife to look in the face of her father-in-law till the birth of her first child – and among the Banyai a man must sit with his knees bent in presence of his mother-in-law, and must not put out his feet towards her.

Now an important circumstance to be remarked in nearly all cases of Avoidance is, that it principally exists between people of different sexes, – thus an a priori inference may be drawn that the primary cause lay in some relation to the sexual question. It is significant that a woman's avoidance of her husband's relations is with those in the ascending line, i.e. with his seniors. Against his juniors he can defend himself, against his seniors he needs the protection of law. In the cases we have cited, it is significant that, besides the father-in-law, hlonipaed among the Kaffirs, the woman must hlonipa all her husband's male relations in the ascending line. Among the Yakuts she must not appear unclothed before her husband's elder brother.

Among the Veddahs of Ceylon a father will not see his daughter, nor a mother her son, after they have come to years of maturity.312

If we examine the words italicised in the quotations above, they seem to convey more nearly an idea of impropriety in any approach to intimacy than that of 'cutting' from enmity, as Dr. Tylor has suggested. Indeed, we observe here just the same horror that a too familiar attitude between forbidden kindred, as uncle and niece, would excite amongst ourselves, arising from the same idea of repugnance.

We see that various observers use the terms 'improper' (Franklin), 'the fear of' (P. Prescott), 'indecent' (Harmon), 'cut off from all intercourse with them,' and no doubt they have313 each expressed the impression made on themselves in observation. We note again that the only case where the native term in designation of the custom is given that it means 'being ashamed.' The limit in time for the avoidance is again significant. 'For some time,' Baegart says; 'tant qu'elle n'a pas d'enfant' (Pallas). 'Till the birth of the first child.' These limitations in time would not exist if enmity because of capture was the cause, whereas we can quite understand them if, the circumstances now proving the consummation of marriage, jealousy might then be supposed to cease. The reserve as to a too familiar attitude that this idea of indecency would imply, is shown where a Mongol daughter-in-law 'cannot sit down in the presence of the father-in-law,' and where the Banyai man 'must not put out his feet towards his mother-in-law, but sit with his knees bent in her presence.' In China it is the father-in-law who hides himself, and this surely would hardly be the act of a captor, nor can we imagine a man having his clothes cut off his back simply because he had not 'cut' some one sufficiently.