Anthropology by Robert Ranulph Marett (top ten books to read txt) 📕

usual consequence of it, quarrels about women constituting one of the chief sources of trouble in the savage world. With a single interesting exception, the stages in the development of the law against adultery are exactly the same as in the case already examined. Whole kins fight about it. Then duelling is substituted. Then duelling gives way to the ordeal. Then, after the penalty has long wavered between death and a fine, fines become the rule, so long as the kins are allowed to settle the matter. If, however, the community comes to take cognizance of the offence, severer measures ensue. The one noticeable difference in the two developments is the following. Whereas murder is an offence against the chief's "majesty," and as such a criminal offence, adultery, like theft, with which primitive law is wont to associate it as an offence against property, tends to remain a purely civil affair. Kafir law, for example, according to Maclean, draws this distinction very clearly.

It remains to add as regards adultery that, so far, we have only been considering the punishment that falls on the guilty man. The guilty woman's fate is a matter relating to a distinct department of primitive law. Family jurisdiction, as we find it, for instance, in an advanced community such as ancient Rome, meant the right of the pater familias, the head of the house, to subject his familia, or household, which included his wife, his children (up to a certain age), and his slaves, to such domestic discipline as he saw fit. Such family jurisdiction was more or less completely independent of state jurisdiction; and, indeed, has remained so in Europe until comparatively recent times.

What light, then, does the study of primitive society throw on the first beginnings of family law as administered by the house-father? To answer this question at all adequately would involve the writing of many pages on the evolution of the family. For our present purpose, all turns on the distinction between the matripotestal and the patripotestal family. If the man and the woman were left to fight it out alone, the latter, despite the "shrewish sanction" that she possesses in her tongue, must inevitably bow to the principle that might is right. But, as long as marriage is matrilocal—that is to say, allows the wife to remain at home amongst male defenders of her own clan—she can safely lord it over her stranger husband; and there can scarcely be adultery on her part, since she can always obtain divorce by simply saying, Go! Things grow more complicated when the wife lives amongst her husband's people, and, nevertheless, the system of counting descent favours her side of the family and not his. Does the mere fact that descent is matrilineal tend to imply on the whole that the mother's kin take a more active interest in her, and are more effective in protecting her from hurt, whether undeserved or deserved? It is no easy problem to settle. Dr. Steinmetz, however, in his important work on The Evolution of Punishment (in German), seeks to show that under mother-right, in all its forms taken together, the adulteress is more likely to escape with a light penalty, or with none at all, than under father-right. Whatever be the value of the statistical method that he employs, at any rate it makes out the death penalty to be inflicted in only a third of his cases under the former system, but in about half under the latter.

We must be content with a mere glance at other types of wrong-doing which, whilst sooner or later recognized by the law of the community, affect its members in their individual capacity. Theft and slander are cases in point.

Amongst the ruder savages there cannot be much stealing, because there is next to nothing to steal. Nevertheless, groups are apt to quarrel over hunting and fishing claims; whilst the division of the spoils of the chase may give rise to disputes, which call for the interposition of leading men. We even occasionally find amongst Australians the formal duel employed to decide cases of the violation of property-rights. Not, however, until the arts of life have advanced, and wealth has created the two classes of "haves" and "have-nots," does theft become an offence of the first magnitude, which the central authority punishes with corresponding severity.

As regards slander, though it might seem a slight matter, it must be remembered that the savage cannot stand up for a moment again an adverse public opinion; so that to rob him of his good name is to take away all that makes life worth living. To shout out, Long-nose! Sunken-eyes! or Skin-and-bone! usually leads to a fight in Andamanese circles, as Mr. Man informs us. Nor, again, is it conducive to peace in Australian society to sing as follows about the staying-powers of a fellow-tribesman temporarily overtaken by European liquor: "Spirit like emu—as a whirlwind—pursues—lays violent hold on travelling—uncle of mine (this being particularly derisive)—tired out with fatigue—throws himself down helpless." Amongst more advanced peoples, therefore, slander and abuse are sternly checked. They constitute a ground for a civil action in Kafir law; whilst we even hear of an African tribe, the Ba-Ngindo, who rejoice in the special institution of a peace-maker, whose business is to compose troubles arising from this vexatious source.

Let us now turn to another class of offences, such as, from the first, are regarded as so prejudicial to the public interest that the community as a whole must forcibly put them down.

Cases of what may be termed military discipline fall under this head. Even when the functions of the commander are undeveloped, and war is still "an affair of armed mobs," shirking—a form of crime which, to do justice to primitive society, is rare—is promptly and effectively resented by the host. Amongst American tribes the coward's arms are taken away from him; he is made to eat with the dogs; or perhaps a shower of arrows causes him to "run the gauntlet." The traitor, on the other hand, is inevitably slain without mercy—tied to a tree and shot, or, it may be, literally hacked to pieces. Naturally, with the evolution of war, these spontaneous outbursts of wrath and disgust give way to a more formal system of penalties. To trace out this development fully, however, would entail a lengthy disquisition on the growth of kingship in one of its most important aspects. If constant fighting turns the tribe into something like a standing army, the position of war-lord, as, for instance, amongst the Zulus, is bound to become both permanent and of all-embracing authority. There is, however, another side to the history of kingship, as the following considerations will help to make clear.

Public safety is construed by the ruder type of man not so much in terms of freedom from physical danger—unless such a danger, the onset of another tribe, for instance, is actually imminent—as in terms of freedom from spiritual, or mystic, danger. The fear of ill-luck, in other words, is the bogy that haunts him night and day. Hence his life is enmeshed, as Dr. Frazer puts it, in a network of taboos. A taboo is anything that one must not do lest ill-luck befall. And ill-luck is catching, like an infectious disease. If my next-door neighbour breaks a taboo, and brings down a visitation on himself, depend upon it some of its unpleasant consequences will be passed on to me and mine. Hence, if some one has committed an act that is not merely a crime but a sin, it is every one's concern to wipe out that sin; which is usually done by wiping out the sinner. Mobbish feeling always inclines to violence. In the mob, as a French psychologist has said, ideas neutralize each other, but emotions aggrandize each other. Now war-feeling is a mobbish experience that, I daresay, some of my readers have tasted; and we have seen how it leads the unorganized levy of a savage tribe to make short work of the coward and traitor. But war-fever is a mild variety of mobbish experience as compared with panic in any form, and with superstitious panic most of all. Being attacked in the dark, as it were, causes the strongest to lose their heads.

Hence it is not hard to understand how it comes about that the violator of a taboo is the central object of communal vengeance in primitive society. The most striking instance of such a taboo-breaker is the man or woman who disregards the prohibition against marriage within the kin—in other words, violates the law of exogamy. To be thus guilty of incest is to incite in the community at large a horror which, venting itself in what Bagehot calls a "wild spasm of wild justice," involves certain death for the offender. To interfere with a grave, to pry into forbidden mysteries, to eat forbidden meats, and so on, are further examples of transgressions liable to be thus punished.

Falling under the same general category of sin, though distinct from the violation of taboo, is witchcraft. This consists in trafficking, or at any rate in being supposed to traffic, with powers of evil for sinister and anti-social ends. We have only to remember how England, in the seventeenth century, could work itself up into a frenzy on this account to realize how, in an African society even of the better sort, the "smelling-out" and destroying of a witch may easily become a general panacea for quieting the public nerves.

When crimes and sins, affairs of state and affairs of church thus overlap and commingle in primitive jurisprudence, it is no wonder if the functions of those who administer the law should tend to display a similar fusion of aspects. The chief, or king, has a "divine right," and is himself in one or another sense divine, even whilst he takes the lead in regard to all such matters as are primarily secular. The earliest written codes, such as the Mosaic Books of the Law, with their strange medley of injunctions concerning things profane and sacred, accurately reflect the politico-religious character of all primitive authority.

Indeed, it is only by an effort of abstraction that the present chapter has been confined to the subject of law, as distinguished from the subject of the following chapter, namely, religion. Any crime, as notably murder, and even under certain circumstances theft, is apt to be viewed by the ruder peoples either as a violation of taboo, or as some closely related form of sin. Nay, within the limits of the clan, legal punishment can scarcely be said to be in theory possible; the sacredness of the blood-tie lending to any chastisement that may be inflicted on an erring kinsman the purely religious complexion of a sacrifice, an act of excommunication, a penance, or what not. Thus almost insensibly we are led on to the subject of religion from the study of the legal sanction; this very term "sanction," which is derived from Roman law, pointing in the same direction, since it originally stood for the curse which was appended in order to secure the inviolability of a legal enactment.