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Lang Andrew
Social Origins and Primal Law

RECENT HISTORY OF THE SPECULATION AS TO THE EARLY HUMAN FAMILY

From the age of Aristotle onwards, inquirers naturally began with a belief in the Patriarchal Family as the original social unit. To this opinion, in a peculiar form, Mr. Atkinson returns, as will be seen. The idea was natural. Aristotle, like Hesiod, starts from 'the Man, the Woman, and the labouring ox,' though men and women were wedded long before oxen and other animals were domesticated. The Biblical account in Genesis opens with the same theory of the primal pair, whose children, brother and sister, must have married each other, as in the late Mr. Morgan's hypothesis of the 'Consanguine Family;' but, contrary to almost universal savage custom, and to Mr. Atkinson's 'Primal Law.'

In 1861, Sir Henry Maine's celebrated book, 'Ancient Law,' appeared. Herein he wrote that it was difficult to say 'what society of men had not been originally based on the Patriarchal Family.¹⁷ His studies had lain chiefly in the law of civilised peoples, Romans, Hebrews, Greeks, Irish, and Hindoos; not in the customary law of the lowest races. He, like Mr. Freeman, concluded that the patriarchal family, by aggregation of descendants (and aided by adoption of outsiders, and by the ownership of the family by its Head), formed the gens, while the aggregation of gentes formed the tribe, and the aggregation of tribes made the State. But, as the gentes had traditions contrary to this theory, traditions of separate origins, he supposed that 'the incoming populace should feign themselves to be deduced from the same stock as the people on whom they were engrafted.' Thus we know that McUlrigs (Kennedys) of Galloway joined the remote Macdonnells of Moidart and Glengarry, and wore the Macdonnell tartan¹⁸ (1745-1760), and so might come to pass as Macdonnells, though they still regard the Marquis of Ailsa, a Kennedy, as their chief, at least in Eilean Shona (Loch Moidart). In the same way the Camerons of Glen Nevis, though called 'Camerons,' were really MacSorlies, a branch of the Macdonnells, and from the sixteenth century to 1754 were always on ill terms with the chief of the clan Cameron, Lochiel. These are very modern instances, but illustrate Sir Henry's theory of incomers.

The members of the Roman tribes had traditions that they were not, really, of the same original blood with each other. Only by a fiction were they of the same blood. They did not all descend by natural increase from one patriarchal ancestor. There really did exist 'a variety of alien groups in a local tribe,' however they might all adopt the same name, and assert descent, in West Scotland from Somerled, let us say. This fact, of heterogeneousness within the 'tribe' among others, was so obvious and so imperfectly explained, by friends of the Patriarchal theory, that it occupied 'writers belonging to the school of so-called prehistoric inquiry,' as Sir Henry styled it.¹⁹ They were not satisfied with the theory that Society arose in the Patriarchal Family, based on direct descent from, and ownership by, a single male ancestor. To be sure a Cameron will 'cross the hill,' and call himself Stewart, and a Chinese immigrant into Australia has discreetly entitled himself Alexander Mac-gillivray. But such accretions, and such legal fictions, do not explain the heterogeneousness of the local tribe, which, by the theory of some historians, is of common descent. 'Prehistoric inquirers' could not but notice that, among ruder 'non-Aryan' races of various degrees of culture, 'the family is radically different from the Patriarchal Family,' and suggests a different origin.

Roughly speaking, the groups of real or fancied kindred among various low races exhibit the peculiarity that the kin-name is often inherited from the mother, not from the father; that the maternal blood is stronger in determining such cases of inheritance as arise; and that marriage is forbidden within the recognised limits of the maternal kinship. It was natural for inquirers to derive this condition of affairs, this reckoning in the female line, from a state of society in which fatherhood (owing to promiscuity, or to polyandry – several husbands to one wife) was notably uncertain. Bachofen, who first examined the problem, attributed the system to a supposed period of the Supremacy of Women: McLennan to dubious fatherhood, and possible early promiscuity. The recovery of supremacy by men, or the gradual advance in civilisation, especially in accumulation of property, would finally cause descent to be reckoned through the male line, as among ourselves.

As to the question of early promiscuity – sexual relations absolutely unregulated – Dr. Westermarck, Mr. Crawley, and others have argued, and Mr. Atkinson argues, that it never existed, at least to any wide extent, and with any potent influence. We hear rumours of savages utterly promiscuous, say the Mincopies of the Andaman Islands, just as we hear of savages utterly without religion. But later and better evidence proves that the Andamanese have both wives and a God.²⁰

Again, the lowest savages known are so far not 'promiscuous,' that they recognise certain sets of women as persons with whom (as a general rule, subject to occasional exceptions) certain sets of men must have no marital relations. It was the opinion of Mr. Darwin, as of Mr. Atkinson, that sexual jealousy, from the first, must probably have been a bar to absolute promiscuity, even among the hypothetical anthropoid ancestors of human race. To tell the truth, our evidence on these points, as to existing savages, is, as usual, contradictory.²¹

WHAT IS EXOGAMY? DIFFICULTIES OF TERMINOLOGY

In these inquiries a great source of confusion arises (as all students must be aware) from the absence of exact terminology, of technical terms with a definite and recognised meaning. Thus when my friend, the late Mr. John Fergus McLennan, introduced the word 'Exogamy,' in 'Primitive Marriage' (1865), he probably knew perfectly well what he meant. But he did not then, from lack of practice in an inquiry practically novel, and originated by himself, express his meaning with exactness. He at first spoke of exogamy as the rule 'which prohibited marriage within the tribe.'²² But the word 'tribe' was later taken by Mr. McLennan to mean, and is now used as meaning, what cannot be a primitive community, a local aggregate of groups amicably occupying a considerable area of country; say the Urabunna tribe of Central Australia. Mr. McLennan did not wish to say that exogamy forbids an Urabunna tribesman to marry an Urabunna tribeswoman; he meant that exogamy prohibited marriage within the recognised kindred – that is, in this case, between members of totem kindreds of the same name, say Emu or Kangaroo. This fact he later made perfectly clear. But meanwhile such terms as 'horde,' 'tribe,' 'sub-tribe,' 'family,' 'gens,' 'section,' 'phratria,' 'clan,' many of them derived from civilised classical or Celtic usage, have been tossed up and down, in company with 'class,' 'division,' 'section,' and so on, in a way most confusing.²³ Odd new terms come from America, such as 'socialry,' 'tutelaries,' 'ocular consanguinity,' 'ethnogamy,' 'conjugal conation,' and so forth.²⁴ Most perplexing it is to find words like clan, family, tribe, gens, phratry, words peculiar to civilised peoples, Greek, Roman, or Celtic, applied to the society of savages. 'The term "clan" implies descent in the female line,' says the late Mr. Dorsey, following Major Powell; but why take the Celtic term 'clan,' which has no such signification, and confer it on what is really a totem kindred with descent in the female line?²⁵ Next, 'several of the Siouan tribes are divided into two, and one into three sub-tribes. Other tribes are composed of phratries, and each sub-tribe or, phratry comprises a number of gentes.' Is there a distinction between the 'sub-tribes' of some tribes, and the 'phratries' of others, or not? Apparently there is not, but the method of nomenclature is most confusing.

I shall understand the terms which I employ, as follows:

The tribe, speaking of the Australians, for instance, is a large aggregate of friendly or not hostile human groups, occupying a territory of perhaps a hundred square miles, and holding councils and meetings for social and religious purposes. It is so far 'endogamous' that its members may marry within it – that is to say, it is no more endogamous than the parish of Marylebone. An Urabunna man, a man of the Urabunna tribe, may marry an Urabunna woman – if no special native law interferes. He may also at pleasure marry, out of his tribe, say a woman of the neighbouring Arunta tribe, again, if no special law bars the arrangement. So far the tribe, the large local aggregate of groups, stands indifferent. But, within the tribe, there are laws barring marital intercourse. First, each tribe is usually composed of two 'primary exogamous divisions,' or 'phratries,' so called; in the case of some tribes the phratries are named; for example, Matthurie and Kirarawa. Every man and woman, in such tribes, is either a Matthurie or a Kirarawa, and can only marry into the opposite division, and the children follow the name of the mother. These two divisions are called 'primary classes' by some students; 'phratrias' (from the Greek: Φρατρία) by others; 'sub-tribes' by others; or, again, 'moieties,' or 'groups.' I shall, in each instance, use the term ('class,' 'phratria,' 'moiety,' 'primary exogamous division,' 'group,' and the like) employed by the author whose opinion I am discussing, though I prefer 'phratry,' as 'class' has another significance; so has 'group,' &c.

Again, the tribe contains a number of totem kindreds (often called 'clans' or gentes, rather at random), that is, of sets of kin deriving their names from totems, plants, animals, or other objects in nature. To the possible origin of Totemism we return in a separate section. No Urabunna man may marry a woman of his own 'phratry,' nor of his own totem, and the children inherit the phratry and totem names from the mother. Finally, there are sets of relationships, roughly indicating, it would seem, seniority by generations, and degrees of actual or supposed kindred. Within many of these, which I shall style 'classes' (they have other terms applied to them), marriage is forbidden. Thus there are bars of three several sorts on the intermarrying of an Urabunna man with an Urabunna woman. In a way, there are three grades of exogamous prohibitions.

Mr. McLennan, who introduced the word 'exogamy,' defined it thus: 'an exogamous marriage is a marriage between persons of different clans of kinship, not entered into fortuitously, but because of law declaring it to be incest for a man to marry a woman of his own clan.'²⁶ The same community cannot be 'both exogamous and endogamous,' as some suppose. Thus Lord Avebury writes, 'some races which are endogamous as regards the tribe, are yet exogamous as regards the gens.' But really 'exogamy is the law prohibiting marriage between persons of the same blood or stock as incest – often under pain of death – and endogamy is the law prohibiting marriage except between persons of the same blood or stock.'²⁷ In Mr. McLennan's sense I shall take the word 'exogamy,' while dealing with peoples apparently nearest the beginning.

Later, when descent in the male line is established, the prohibition on marriage within the totem name comes to apply, sometimes, to marriage within the local district held by the men of the name. The old prohibition, we see, is to many within the recognised limit of the blood kinship, or stock, designated by the totem name. But, as tribes advance to kinship through males, and as, thereby, groups of one totem name come to possess one region of country, it often happens that exogamy prohibits marriage between persons dwelling in that region. Whereas Grouse was forbidden to marry Grouse; later, the Grouse living together, say in Corradale, the exogamous prohibition takes the shape 'persons dwelling in Corradale must marry out of Corradale.' The name marking the exogamous limit is now, in such cases, local, but the prohibition is derived from the older tabu on marriage between 'persons of the same blood or stock' – all those in Corradale being conceived to share the same blood or stock. This origin of 'local exogamy' must be kept in mind, otherwise confusion will arise. There are a few cases, even in Australia, where even local exogamy has become obsolete, and marriage, as with ourselves, is prohibited between persons of near kindred simply.

Now, if I may venture to interpret the mind of Mr. John Fergus McLennan, I conceive that he regarded the totemic division as older than the 'phratry' or the 'class' bar, and he thought it the oldest traceable exogamous limit. Not to marry within the totem name (no male Emu to marry a female Emu) was, in Mr. McLennan's opinion, the most archaic marriage law.²⁸ This appears from the words of Mr. McLennan's brother, Mr. Donald McLennan.²⁹ He writes: 'As the theory of the Origin of Exogamy took shape, and the facts connected reduced themselves to form in his mind, the conclusion was reached that the system conveniently called "Totemism" … must have existed in rude societies, prior to the origin of Exogamy.³⁰ This carried back the origin of Totemism to a state of mind in which no idea of incest existed. From that condition my brother hoped to trace the progress of Totemism – necessarily a progress upwards – in connection with kinship and Exogamy. It may here be said that he had for a time a hypothesis of the origin of Totemism, but that he afterwards came to see that there were conclusive reasons against it.'

Meanwhile may we not, then, assume that, in Mr. McLennan's opinion, the earliest traceable human aggregate within which matrimony was legally forbidden was the totem kin, indicated by the totem name, the totem tabu, and the totem badge, or symbol – where it existed?

We now see how heterogeneous elements came to exist in the tribe of locality, a puzzle to the friends of the theory of the Patriarchal Family. For the nature of totemism, plus exogamy and female descent, is obviously such that under totemism, each family group even (each 'fire circle' of men, wives, and children), must contain persons of different totems. The father and mother must be of different totems (persons of the same totem not intermarrying), and the children must inherit the totem either of the father or of the mother.³¹ When paternal kinship is not only recognised (as, in practical life, it always is), but becomes exclusive in its influence on customary law, and when an approach to the Patriarchal Family, with the power of the patriarch, is evolved, all the members of the family in all its branches will (if Totemism persists) have the same totem; derived from the father. Thus there will now be a local totem group, a group mainly of the same totem name, as is practically the case in parts of Central Australia.³²

It is necessary to understand this clearly. Take a very early group, in a given district; suppose it, at first, to be anonymous, and let it later be called the Emu group. So far, all members of the group will be Emus, they will form an Emu local group. But, next, suppose that there are many neighbouring groups, also at first anonymous; let them later be styled Rat, Cat, Bat, Sprat. Suppose that each such group now (for reasons to be indicated later) takes its wives not from within itself, but from all the other groups; that these women bring into the Emu group their group names; and that their children inherit their names from their mothers. Then the name, 'Emu group,' will cling to that local aggregate, as such; but, in time, the members of the Emu group will all be, say, Rats, Cats, Bats, and Sprats, so called from the group-names of their alien mothers. Suppose that, for one reason or another, children at last come to inherit their names and totems from their fathers. Then a Cat father will have Cat children, though his wives may still be of different totems, and his sons' children will also be Cats, and so the local group will become mainly, if not wholly, a group of one totem, the Cat. The Arunta of Central Australia do trace kinship in the male line, and thus there is 'one area which belongs to the Kangaroo men, another to Emu men, another to Hakea flower men,' and so on. This has reached such a pitch that 'in speaking of themselves the natives will refer to these local groups,' not by the prevalent totem names in each, but 'by the name of the locality which each of them inhabits,' namely, as men of the Iturkawura camp, and so on.³³ Thus we might say 'the Glen Nevis men,' 'the Corradale men,' and so on.

Thus we begin with an anonymous group, or group of unknown name, a local group. We introduce Totemism, and that group becomes a local group with a totem name. Granting exogamy (prohibition of marriage within the group), and reckoning in the female line, it soon developes into a local group made up of various totems, but, at first, as a local group, it probably retains its original totem name among its neighbours. Reckoning, still later, through the male line, we again meet, as at first, a local totem group, but already Totemism is on the wane, and the groups are soon to be called by the territorial names of their lands. At this stage totem names are tending to decay, and the next step will probably be to style the group by the name of some remembered, or mythical, male ancestor, such as 'children of Donald' – Macdonalds.

Thus if, at a given time, the name of a certain male ancestor is substituted, as 'eponymous,' for the totem name, or the district name, we shall find a local group of, say, Sons of Donald, into which other groups, Sons of Sorlie, or Ulrig, will enter, as occasion serves, and be more or less absorbed. A State may at last arise, say, 'Softs of Israel.'

We are not assuming, however, that all human societies have passed through the totemistic and exogamous stages.

TOTEMISM AND EXOGAMY

But what was the original unit, the totem group, or other division outside of which alone could marriages be arranged? And why was the totem name the limit? Returning to Mr. Donald McLennan's account of the opinions which his brother did not live to set forth, Totemism arose 'in a state of man in which no idea of incest existed.' On this theory, I presume, there would be totem groups before exogamy arose; before it was reckoned 'incest' to many within the totem name. This, as we shall see, appears to be sometimes the opinion of the best Australian authorities, Messrs. Fison and Howitt, and Messrs. Spencer and Gillen. It is also the theory of Arunta tradition. The totem belief, as it now exists, imposes many tabus: you may not (as a rule) kill, eat, or use the plant or animal which is your totem; still less perhaps, in the long run, may you 'use,' sexually, a woman of your totem. If this, or a kindred totem tabu, is the origin of exogamy, then to exogamy (as a law, though not necessarily as a tendency) the totem is prior in time. But I have no reason to suppose that Mr. McLennan ever regarded the totem tabu as the origin of exogamy. In his published works he offers another theory, not commonly accepted.

But the important thing to note is that exogamy may conceivably (contrary to Mr. McLennan's opinion, but in accordance with that of Mr. Atkinson) have existed, or rather tended to exist, before totems arose; much more, then, previous to the evolution of totem names, of totem tabu, and of the idea of incest, as a sin, or mystic misdeed, and as an offence to the totem – a religious offence to God, or to ancestral spirits. Persons may have been forbidden to marry within their local group, their 'fire circle' before that group had a totem, or a totem name, and they may have been forbidden for reasons purely secular, to which the totem later lent a sanction, and a definite limit. Thus Mr. Tylor, our most sagacious guide in all such problems, writes 'Exogamy can and does exist without Totemism, and for all we know was originally independent of it.'³⁴

It is part of my argument that exogamous tendencies, at least – that is, a habit of seeking female mates outside of the fire-circle – may very well have prevailed before any human group had even a totemic name. But exogamous tendencies are not, of course, the same thing as exogamy strictly defined, and sanctioned by religious or superstitious fear, and by secular penalties inflicted by the tribe. Against the notion that exogamy may have been prior to Totemism, Mr. Robertson Smith argued that very early man would not be restrained from marriages by such an abstract idea as that of kindred – 'not to marry your near kin' – while the idea of kindred was still fluid, and not yet crystallised around the totem name.³⁵ But, without thinking of kindred by blood, perhaps without recognising consanguinity (though it must have been recognised very soon), early man may have decided that 'thou shalt not marry within this local group or crowd, of which I am head.' Nothing abstract in that! There was no tribal law – there were as yet (I suppose) no tribes – only the will of the head of each small set of people practically enforced exogamy.

We can have no certainty on this point, for we know of no pre-totemic race, no people who certainly have not yet entered into the totemic stage. Any such people, probably, in the remote past, had no idea of incest as a sin, or of exogamy as a law sanctioned by a tabu. But they may have, at least, had a strong tendency to marry outside of the circle of the hearth, the wandering hearth of homeless nomads ranging after food.

The reader of Mr. Atkinson's treatise will find that this kind of exogamy – marriage outside the local group – would, on his theory, be the rule, even when no idea of blood kindred, or of incest as a sin, need have arisen; and no totem, or anything else, had yet been named. The cause of the prohibition would, in Mr. Atkinson's opinion, be the sexual jealousy of the hypothetical patriarchal anthropoid male animal; and, later, the sexual jealousy of his adult male offspring, and of the females. Still later the group, already in practice exogamous, would accept the totem name, marking off the group from others, and the totem name, snipe, wolf, or what not, would become, for the time, the exogamous limit. No man and woman of the same totem name could intermarry. Still later, a myth of kinship with the totem would arise, and would add the religious sanction of a tabu.

A prohibition may perhaps have arisen very early, even if Mr. Atkinson's hypothesis (that the rule of marriage outside the group arose in a state of brutality) be rejected. 'The origin of bars to marry is, in fact, complex,' writes Mr. Crawley. A dislike of marriage with a group-mate, familiar, through contiguity, from infancy, may have been developed among early men;³⁶ and may have been reinforced by the probably later superstitions which create 'sexual tabu,' and mutual avoidance, among many existing peoples. Men and women are, by savages, conceived to be mysteriously perilous to each other, especially when they live in close contiguity. Mr. Crawley also allows for Mr. Atkinson's main factor, jealousy, 'proprietary feeling, which is one crude means by which the family has been regulated and maintained.'³⁷ If these things were so (whether we go back to Mr. Atkinson's semi-brutal ancestors, or not), then, contrary to Mr. Donald McLennan's opinion, and to general opinion, it would not 'appear to be possible to demonstrate that Totemism preceded exogamy,' or at least preceded the exogamous tendency. For, in the first place, exogamy might conceivably tend to arise before the explicit idea of kinship – whether male or female – arose. Mr. Atkinson's 'primal law' would be unuttered in speech (speech, by his theory, there was none), but would amount to this: 'I, the patriarchal bull of this herd, will do my best to kill you, the adult young bulls, if you make any approaches to any of the cows in this crowd.' There is no notion of 'incest,' but there is jealousy producing the germ exogamy. The young bulls must find mates outside of the local herd – or do without. This rule persisted, on Mr. Atkinson's theory, till the hypothetical anthropoid became a man, and named his group (or had it named for him, as I later suggest) by a totem name.

But real human and speaking beings might enforce marriage outside of the group, though they did not perhaps think explicitly of kindred (or, at least, did not think the idea fully out), still less of 'incest,' as sin. Mr. McLennan's theory, as given in his works, was partly identical with that of Mr. Atkinson. 'The earliest human groups can have had no idea of kinship' – they must, therefore, have been rather low savages. 'But,' he said, 'they were held together by a feeling of kinship,' not yet risen into explicit consciousness. Cat and kitten have, probably, feeling of kinship, and that feeling is very strong, while it lasts, in the maternal cat, while between semi-human mothers and children, arriving so very slowly at maturity, mother-kin must have been consciously realised very early. Mr. McLennan then showed the stages by which the savage would gradually, by reflection, reach explicit consciousness of female kinship, of mother-relationship, sister and brother relationship, and all the degrees of female kin.

But Mr. Fison and others have argued powerfully against this theory.³⁸ Moreover, we find male relationships, as we saw – 'descent counted in the male line' – among the Arunta of Central Australia, whom Mr. J. G. Frazer regarded, in 1899, as actually 'primitive;' while the neighbours of the Arunta, the Urabunna, reckon through the female line.³⁹ Mr. Crawley, for various reasons, says, 'the famous Matriarchal theory' (the prepotency and dominion of women) 'was as exaggerated in its early forms as was the Patriarchal… It is a method of tracing genealogy, more convenient in polygamous societies and more natural in primitive times when the close connection of mother and child during the early days of infancy emphasises the relation.'⁴⁰ Dr. Westermarck argues to a similar effect.⁴¹ His motive is to discredit the theory of promiscuity, and consequent uncertainty of fatherhood, as the cause of reckoning on the spindle side. But the Arunta, who reckon on the sword side, actually do not even know that children are the result of sexual intercourse, according to Messrs. Spencer and Gillen. How they can have any idea of blood-kinship at all is, therefore, the mystery. It may perhaps be argued that they have none. But these ignorant Arunta reckon descent through the male line – while the Royal Picts, in early Scotland, infinitely more civilised, reckoned by the female line.

For myself, I still incline to the opinion⁴² that the reckoning of descent through the woman is the more archaic method, and the method that, certainly, tends to dwindle and disappear, as at last it did among the Picts. This applies to human society, not to that of Mr. Atkinson's hypothesis, in which the question is not of kin, but of property. 'Every female in my crowd is my sole property,' says – or feels – Mr. Atkinson's patriarchal anthropoid, and the patriarch gives expression to his sentiment with teeth and claws, if he has not yet learned to double up his fist, with a stone in it. 'These were early days.'