Primitive law 1924

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Contents

CHAPTER j PAGE I. INTRODUCTORY an , A f : T II. CONSTITUTIONAL LAW : . : IO

III. PERSONAL RIGHTS AND LIABILITIES . ‘. 48

IV. PROPERTY. OWNERSHIP. INHERITANCE.

Chapter I Introductory

AN is a social being. He is never found alone, M save under the compulsion of exceptional and

temporary circumstances. In this he differs from the higher apes, his nearest analogues in nature, which are usually solitary or found at most in tiny bands consisting of an adult male, his female consort, and their immature progeny. Human beings, on the contrary, if they separate in the search for food, flight from enemies, or other purposes, always rejoin the band to which they belong at the earliest opportunity ; and where, as frequently among the, lowest races, they habitually gather in small companies, these coalesce either at stated times, er on summons for consultationtouching matters of common interest, for the performance of common rites, or for other social purposes. ~ Such aggregates, whether of few or many, whether temporary or permanent, necessitate rules governing the relations of the individuals composing them to one another and to the aggregate, and the relations of the aggregate and of individuals composing it to similar

I I aggregates and to alien individuals in general. Without these rules the assembly or the band would be a mere agglomeration of individuals guided only by their individual wills: it could not continue to exist.

Such governing rules are the laws which the individuals and aggregates alike obey. In the lower culture—that is to say, among relatively primitive peoples—these laws are to the present day unwritten ; and presumably this was the case universally in archaic times. Hence, among civilized peoples who are accustomed to associate laws with written documents, the rules obeyed by savage peoples have been refused the name of laws and called only customs. But customs that are fixed and generally obeyed are indistinguishable from laws. In our own country, the judges of the King’s courts have always recognized and given effect to them as laws, though prescribed in no written legislation. Thus modes of action and conduct which have been followed from time immemorial by the | community, or by particular classes or districts, as. definite and proper rules for the guidance of transactions, or of the relations between different sections of the community or between individuals, have been stamped with general approval and become part of express law. On the same authority the resentment and repudiation by the community, without any formal prohibition by the sovereign, of conduct defined as contra bonos mores have been adopted, and this conduct has been declared contrary to the public interest and good government. Both on the positive and the negative sides custom has been recognized as law.

The first attempt at codifying Roman law was the Law of the Twelve Tables, assigned to the year 450 B.c,

INTRODUCTORY 3

But nobody suggests that unwritten, but real, laws did not exist long prior to this. Rome had then been an independent and growing State for ages. Indeed, we expressly hear of new laws and changes of law long before the promulgation of the Law of the Twelve Tables. Our own forefathers, the English of the period called the Heptarchy, had no written laws until after the coming of Christianity at the end of the sixth century. The earliest written legislation by the kings and their witan that has come down to us is obviously nothing more than a series of attempts to supplement and adapt to the new order of things a body of law already of ancient date. Kent was naturally the first kingdom to do so; and the new laws of Kent in more than one instance speak of their kings as thus adding to the laws of the forefathers. The legislation of Ina, King of the West Saxons, also presupposes the existence of a body of laws, which it is intended to supplement and amend. It is needless to labour the point.

In these pages we have only to do with Primitive Law, the rules which govern societies in the lower culture. The word primitive must not be taken literally. We do not know what laws governed mankind in an absolutely primitive condition. No records remain of that condition when human beings first emerged as such—when men first became men. Of their societies, therefore, we know nothing. We can only infer that mankind must have been evolved from gregarious ancestors. The process was doubtless slow and extremely gradual; and the co-operation of numbers was a material element in bringing about the result. Co-operation implies a certain degree of harmony ;

and the harmony must have been attained by some kind of rudimentary regulation. That such regulation was possible the examples of deer and even bees and ants, which have not risen above the merely animal condition, abundantly prove. Much more, then, was it natural to creatures endowed with higher capacities, and hence with greater possibilities of advance. Our acquaintance with human societies begins at a much later date. The most backward societies of men now are at least societies of men with human needs, human feelings, and human aspirations. It is to these, and to societies somewhat more advanced, that anthropologists apply the term frimitive. Its use is necessarily comparative and vague, as many terms are which relate to the subjects or the consequences of Evolution.

The laws of all such societies are unwritten, because writing is unknown ; or, ifit be known, not in common use. But the laws themselves are well known. In England, in consequence of the growing complexity of civilization, the presumption everywhere underlying legal administration, that every one knows the law, has ceased for generations to correspond with the facts, and has been expressly limited by the courts of law so as to exclude the operation of certain details of the law of property. In a simpler society, the difficulty cannot arise. From his earliest days the everyday life of the tribe is exposed to the child. He becomes acquainted with the meaning of his surroundings, the occupations and duties of the individuals composing the tribe, its divisions and organization, as they are revealed in the acts and in the talk of all about him. At the age of puberty, when his understanding has sufficiently

INTRODUCTORY 5 ripened with his years, he is brought together with his fellows of similar age under a more formal and penetrating discipline, in the course of which he is initiated into the secret tribal traditions and ideals and the rules which are to guide his life as an adult member of the community. Thenceforth in constant communion with the elders he profits by their knowledge and experience, until his memory is stored and his judgment is matured on all the questions of tribal as well as sectional and individual rights and duties. Such a result is possible only where the community is comparatively small, and where its civilization is rudimentary and uncomplicated by the division of labour, the machinery, the accumulation of property, the ranks and social divisions of more advanced societies.

Primitive law—the law of societies we call primitive— relates of course to rude conditions, in which culture has made but little progress, and in which the more elemental conditions demand little of the elaboration rendered ever more and more necessary by expanding civilization. On the other hand, it covers whole departments of life that we have abandoned to the unfettered will of the individual, or at all events dropped from the law of which cognizance is taken by the courts of justice. Many of these, it is true, are still governed by our social customs, or by the rules of voluntary societies within the body politic; but they are matters which do not affect foreign relations, the King’s peace within the realm, the descent of property, the conditions of labour, taxation, or other subjects to which in modern days we confine the-enactment and administration of what is with us technically the law. Primitive law is in truth the totality of the customs of the tribe. Scarcely anything eludes its grasp. The savage lives more in public than we do; any deviation from the ordinary mode of conduct is noted, and is visited with the reprobation of one’s fellows. It is a common thing to ascribe any untoward event which may happen afterwards to such a deviation.t A man’s relations with his mother-in-law are a subject for jocularity with us ; the community does not interest itself seriously in them, unless he transgress the etiquette of the position with the kitchen poker. It is otherwise with the Blackfellows of Australia. Among the Yuin of New South Wales a man might not even look-at his mother-in-law ; and even if his shadow fell on her it was a cause of divorce. The tribes on the Hunter River, at the mouth of which the thriving port of Newcastle now stands, were more severe: to do no more than speak to her was death.?

It is a serious offence against the law of the Ifugao of Northern Luzon in the Philippine Islands to use certain language or do certain acts in the presence of one’s kin of the opposite sex who are within the prohibited degrees of marriage, or indeed to refer to sexual matters save in the most delicately veiled manner. Breach of the taboo was generally punished by social contempt ; but in one district it rendered the culprit liable to be punished by the lance, especially if a third

1 An instance may be given of the effect of deviation in what we should think a very trifling matter. Among the Bantu of South Africa ‘‘a man must never sleep on the right-hand side of the bed when he occupies the same bed with one of his wives. He must not touch her with his right hand; if he did he would have no strength in war, and would surely be slain,’’—Rev. J Macdonald in “‘ J. A. I.,’? XX, 140.

INTRODUCTORY ie person were present. No one among the same people who knows of a death may ask a relative of the dead man if he be dead ; he who does so is punishable by fine.t At a death among.the Arunta of Central Australia it is the duty of all the actual and (under Arunta law) possible sons-in-law of the deceased to cut themselves on the shoulder ; and to omit to do so is to render the offender liable to punishment at the hands of some other father-in-law, actual or possible, by forfeiture of his wife, who will be given away to another man.? Their northern neighbours, the Warramunga, forbid certain foods, including the flesh of a kind of kangaroo (Macropus robustus), to all except very old men, and for anyone else to eat this kind of kangaroo is a grave offence. Among the Ewhe of the Slave Coast of West Africa ‘‘the most absolute tolerance prevails with regard to the worship of the gods, and it is considered quite natural that opinions should differ concerning the choice of a god. Sacrileges or insults to a god, however, are always resented and punished by the priests and worshippers of that god, it being their duty to guard his honour.’’* Do we pity or despise these poor savages and barbarians for the importance they attach to such trifles? In the fifteenth and sixteenth centuries, on a much higher plane of civilization, we burnt alive, by sentence of the courts, men and women for the crime of heresy, and we compelled every one to attend his own parish church every Sunday and ecclesiastical

=k. F. Barton, “ Univ. Cal. Pub.,” XV, 12.

2 Spencer and Gillen, ‘‘ Central Tribes,’ 500; ‘‘ Northern Tribes,”’ 514, 515.

3 [bid., ‘‘ Northern Tribes,” 515.

4 [Sir] A. B. Ellis, ‘‘ Ewe,” 81.

holiday—a law which was only repealed in the tenth year of the late Queen Victoria, within the lives of many persons yet surviving.

Some of these prohibitions and injunctions raise the question of the sanction necessary to a law. The subject will be considered more at large hereafter. In the meanwhile it is enough to observe that social contempt often carries very real penalties in the lower culture; and even supernatural penalties, the vengeance of a god or the self-acting power of a’ taboo, are the creation of society. The general belief in the certainty of supernatural punishment and the alienation of the sympathy of one’s fellows generate an atmosphere of terror which is quite sufficient to prevent a breach of tribal customs, such as would be held to account for a personal or tribal calamity.

Tribal law does not recognize the divisions which are found convenient in juridical discussions. The law is one ; every part of it is equally consecrated by long use, by religion, and by the instinctive submission of every member of the tribe. In these stages of culture, in the same way as the name is an essential part of the individual, the law is an essential part of the tribe. It is no question of aim or utility. Every portion of it is equally binding and has the same reputed origin ; every portion equally belongs to the traditions of the tribe and is a sacred inheritance from the tribal ancestors. The law is a manifestation of the tribal life, as indivisible as life itself. This is not to say that there is no change, no legislation.

No one will venture to affirm that any community has remained perfectly stationary during the centuries or millenniums that have elapsed from its beginning,

INTRODUCTORY 9 whatever that beginning may have been. There has been constant change, usually very slow and gradual, and then for the most part unconscious, but at times sudden or greatly accelerated. Contact with other communities, with other civilizations, with new and unfamiliar physical environments, is among its most obvious causes. Internal expansion, too, has led to continual developments; for apart from outside influences the growth and evolution of a living organism have been acting throughout its existence. But the new law rests on the old foundation and speedily becomes consolidated with it. For scientific purposes, therefore, while we analyse Primitive Law into different subjects, in the hope of rendering it more intelligible, it must be always borne in mind that the “ primitive ” does not so analyse it. He accepts it as a whole, a unity, the thought of Te which has never entered his head.

Chapter II

HE first requisite of every community is to have some sort of organization which provides.

for the seat of authority, the method and extent of its exercise, and the internal arrangements governing the relations of its various parts. This is the constitution of the society. In communities the most nearly primitive of any now existing the constitution is of the most elementary kind. The organization depends in the first place upon the food-supply and the means of obtaining food, and next upon the foes, human and other, with whom the community has to contend. Some of the peoples in this condition inhabit the most remote and inhospitable regions of the earth’s surface. They have probably been driven thither by the pressure of tribes better equipped and more vigorous than themselves. In this case they may have reached in the happier seats from which they have been driven a higher zone of civilization than they now occupy; and they may have been compelled to abandon culture and organization unsuited to their present habitat and condition. But although this is possible there is little or no evidence of such degradation. So far as we know, it may be said generally that peoples in such a situation

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7S ee show no signs of having once been more civilized than they are to-day. They may therefore be taken as exhibiting an early type of society. Other peoples in a low condition of culture dwelling in a land more favoured with the means for human habitation and progress have an elementary constitution in many respects not a whit more advanced than theirs.

The archipelago which we call collectively Tierra del Fuego is inhabited by several tribes, of which little is scientifically known. The Yahgan are the most southerly of these tribes. They inhabit the desolate shores of the Beagle Channel and the equally desolate islands southward to Cape Horn. They seem to have no tradition of ever having lived anywhere else. In their bitterly cold and stormy environment the Yahgans are naked savages, having at most a sealskin or a seaotter skin thrown over their shoulders to protect them in some measure from the driving gales and icy waters, amid which they contrive to preserve a miserable existence. In those chilly regions where little vegetable life can be maintained, they extract nourishment from a few funguses, berries and roots, but chiefly depend on the produce of the sea—fish, seals, molluscs, and now and then stranded whales—and on the eggs of sea-birds. This precarious life has chiefly to be passed in canoes, each of which represents an independent authority, containing for the most part only a family group, commanded by the father or the most experienced and able seaman. Ashore they are housed in rough wigwams, in which a family or two may dwell. At times they assemble in larger numbers at a fixed rendezvous, where they may remain for weeks, dividing socialistically the plunder of the seas, or whatever else chance may have thrown in their way. But the duration of these assemblies is precarious; the necessities of life and the uncontrolled will of the chief of a family group may bring it at any time to an end. It follows from what has been said that the only fixed authority recognized is that of a father over his family ; there are no other chiefs, though an influence, real but undefined, is exercised by experience and proved strength, intelligence, and ability, or by the medicineman’s craft and skill in his management of men. A father’s power over his wife or wives and other dependants is in theory absolute ; in practice it is greatly limited by the power and independence of the women. There is, however, no social inequality, neither slavery nor aristocracy being recognized. Definite clan-organization does not exist, but the germs of it may perhaps be found in the fact that certain groups “ related apparently by blood and marriage occupy more or less fixed localities.”

The tribal constitution is here in a distinctly rudimentary stage. No other is possible in the cruel environment. Yet we are told that “the Yahgan is as gregarious as his food-supply and wanderlust, the latter if not engendered at least nursed by his habitat, will permit,” and that “only lack of greater communal intercourse is responsible for lack of leaders.” }

In the stormy Bay of Bengal the inhabitants of the Andaman Islands, a negrito people, are very low in the scale of humanity. They are acquainted with the use of fire, but do not know how to produce it. They are divided into a number of independent tribes, among

1 Proc. 19th Internat. Cong. Americanists, 426 sqq.; ‘‘ Bull. B,-E.; DXIL, 168, 177, 183-1900, 225;

which the entire country is apportioned. The climate is tropical, the islands are covered more or less with jungle, and life is less arduous than that of the Yahgans ; larger communities are therefore possible. Roots, fruits and seeds of various kinds, honey, shellfish, fish, and turtle on the sea-shore, inland the produce of the chase, such as mammals, iguanas, snakes, and certain insects, constitute the main food-supply, occasionally varied with pigeons or jungle-fowls. To obtain these they have to live a nomadic life, each tribe and each local group within its own limits. They dwell in huts, more or less fragile according as they are intended for a comparatively permanent camp or to serve only temporary ends. There is no organized government, nor any chiefs properly so called. The persons who have been called chiefs in the writings of Mr. Man, and even of Sir R. C. Temple, appear to be in fact no more than men whose personal qualities of skill in hunting and fishing, their boldness and enterprise in war, and their reputation for generosity, hospitality, and evenness of temper have led them to eminence among the older men. It is the older men and women who manage the affairs of the community and get the best share of the good things of Andamanese life. Each tribe consists of a number of independent local groups or communities, united only by a common language and such common feeling as it generates with neighbours who are known, and who are known to be on the whole friendly and to have certain common interests. In themselves the local groups are but loosely bound together: a member who is discontented can always quit his group and join another which may be willing -toreceive him. In the management of affairs the elders are therefore subject to the will of the group ; and, if in the distribution of food and other matters they get any personal advantage, it is because this is conceded to their known qualities and experience and to the tradition of the community. Moreover, younger men attach themselves willingly to elders of known ability, and increase their following and their local group. | There is no distinction of rank or class: apart from age and personal character all are on equal terms. But there is a further division of the people into longshore men and jungle-dwellers, according to their | respective habitat and habits, each of these divisions in each tribe having its own elders and leaders.

The constitution of the Andamanese tribe, accordingly, is still founded on voluntary association and obedience. If it be any higher than that of the Yahgans, it owes it to the larger and more permanent aggregations of individuals composing it, and consequently a greater and more continuous common feeling and co-operation. The people are not separated by the need of seeking food on barren islets and on the seas, where numbers would be of little avail and could not be supplied with the requisites of life. They dwell in the jungle, or on shores that furnish them with more liberal supplies. On the other hand, co-operation is needed for the erection of their comparatively permanent encampments, for the hunt, and for protection against neighbouring tribes, some of which are warlike and addicted to raids across the frontiers of their respective territories. Assistance is willingly given, for the sustenance and

1E.H. Man, “ J.A.I.,”’ XII, 108; Sir R. C. Temple, “ Census of India, 1tg901,’’ 49, 51. Both the accounts have been much modified by subsequent inquiries.

often the very existence of the local community and the tribe are at stake. It should also not be forgotten that the association and obedience of the individual members may be voluntary only in appearance and in detail. The habit is impressed on them from their earliest years. It becomes part of their character. They cannot imagine any other mode of existence ; and to act contrary to the customs of the tribe or the wishes of the elders would be to challenge public opinion and to render them outcasts, unless in a particular case they had strong grounds for their action and the sympathy of a considerable proportion of their fellows.

In a similar zone of civilization the Australian tribe differs in organization from that of the negritoes of the Andaman Islands in several respects. As in the case of the latter, each tribe occupies and hunts over a certain territory whose limits, however ill-defined they may seem to us, are well understood by the natives. The tribe within those limits speaks a common language and recognizes a certain kind of kinship uniting all its members ; but it has no chief, nor any large permanent community. The quest of food divides it into small parties, sometimes consisting of no more than a Yahgan boatload—an adult man with his wives and children—at other times of a greater number, but usually all related by blood or marriage, roving about within a certain area over which they have a special claim, and camping together in miserable temporary huts, or often under the shelter of mere wind-screens. These small parties are, however, more or less in touch with neighbouring parties, and with them form what may be termed a local group, which meets now and then for ceremonial functions, consultations, hunting, and social amusement. More rarely the entire tribe assembles for these purposes, and less frequently still two or more tribes speaking dialects of a common language. Such meetings, if food can be ensured, may be prolonged over days and even weeks; but the conditions forbid anything more than an occasional reunion. The strongest tie between the units of a tribe is perhaps that of language, which gives substance to the vague feeling of kinship between the different local groups. Each local group, whether large or small, is very jealous of any violation of what is deemed its special territory, and such violation may, and frequently does, lead to war.? Although the tribe has no single chief whose power is recognized by all the units, there is as a rule one man in each local group who takes an undefined leadership and from his ability and experience is recognized in that capacity. On his death he is often succeeded by his son, if qualified in the same way. Such a man wields in his local group much influence. His authority is rarely set at defiance ; but it is indefinite, and is armed with no compelling power. Beyond the limits of the local group he comes into competition with other local leaders. Both in the local group and in the tribe the real power is vested in the old men, who form a sort of council whose decisions are generally accepted; and of this council the local leaders (often called the headmen) naturally form part. The constitution of the council, however, is vague, and its decisions, when

1It is convenient to refer chiefly to G. C. Wheeler, “‘ The Tribe,’ because he has analysed the frequently vague and even contradictory reports of observers who are first-hand authorities. “ The Tribe,” 18, 20, 28; 62, 76; Howie

2 Wheeler, 41 sqq.

made known, are subject to the acquiescence of the general body.? | Another division cuts across those of the local group and the tribe, namely, the clan. Save among certain tribes every native belongs to a clan, theoretically a body of blood-relatives into which he is born. This body transcends the local group and the tribe. Indeed, so wide are its ramifications that it is probably not too much to say that many of the clans, or clans which are held to be their equivalents, are found from one end of the continent to the other. We shall consider the clan more in detail hereafter. Meanwhile it is sufficient to observe that the claim to blood-kinship is not the vague kinship of the tribe, but a definite relation founded on descent on one side, and on one side only, either through the mother, as seems to have been the original reckoning, or through the father, which is now the reckoning of some of the tribes. Among the Central tribes the clans are in process of disappearing. The Arunta have already practically discarded them in favour of local groups, centred round the shrines of perpetually reincarnated ancestors. At the head of each of such local groups is a leader who is believed to be a reincarnation of one of the ancestors, and the group over which he in some sense rules bears the name of the clan the shrine of whose previous incarnations it is believed to be in possession of. The local group ~ continues the reincarnation of the dead, and is recruited not by descent but by children who are believed to be reincarnations because their mothers are held to have conceived not by sexual coition, but by the

1 Wheeler, 49 sqq.

entry in some mysterious way into their wombs of the spirits of the deceased.?

The clan is exogamous, that is to say, no member is allowed to marry another of the same clan, for this is held to be incest.2, A further development in organization has, however, taken place almost all over Australia, by which the tribe is divided into marriage-classes. These marriage-classes seem to have been developed out of the clan-system. In the tribes of simplest organization they coincide with the clans. In this case there are only two marriage-classes, which results in dividing the clans into two phratries ; and marriages are only permitted between members of opposite phratries.? This, however, does not of itself prevent marriages of very near kin. If the rule of descent were matrilineal, for instance, it would not prevent the marriage of father and daughter, for they would belong to opposite phratries ; if patrilineal, it would not prevent the marriage of a son with his mother. The next step therefore is to divide the marriage-class into two. Every member of a marriage-class belongs to one or other of these divisions or secondary classes, and the children of a marriage belong to the class of the parent of the sex through whom descent is reckoned, but to the secondary or sub-class to which the parent does not belong. Most of the tribes having the original marriage-classes only, or the original marriage-classes and the secondary classes, reckon descent through the mother only. Some of the Central tribes have still