Social Origins and Primal Law. Lang Andrew

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tamed the horse, 'we would undoubtedly ere now have had an equestrian representation of the fact,' though it is also said that 'we have only as yet a preliminary instalment of these most interesting art productions.'13 The representation may later be discovered. That palæolithic man, so far advanced as he was, was 'ignorant of the principles of religion,'14 seems a hasty conclusion. If he had the beliefs of our Australians in such potent beings as Baiame, Nooreli, Daramulun, Mungun-ngaur, Pirmaheal, and Pundjel, that belief would leave no material traces, except, perhaps, the Bull-roarer, whose noise represents the voice of one or other of these beings. Now a small but unmistakeable pair of palæolithic bull-roarers in bone, or of amulets which are bull-roarers in miniature, one of them decorated with the sacred Australian pattern of herring-bone and concentric circles, have been found in a quaternary station in France.15

      Palæolithic man in France, countless ages ago, was thus, especially if he had domesticated animals, immensely more remote from 'the beginning' than contemporary wild Australian tribes. They, again, with their copious languages, ingenious implements, complex institutions, and prolonged tribal assemblies, are infinitely in advance of those really primitive men among whom we must tentatively seek the origins of customary law regulating the family and marital arrangements. A society almost incalculably ancient may have been much more advanced than a society of to-day, and the society of the lowest known modern savages must be equally advanced from the status of 'primitive man'.

      The best proof of all that no Australians are now in or near 'the chrysalis state' of humanity, is to be found in their combinations into large friendly tribes, each covering a wide extent of country, and holding stated meetings, for social, political, religious, and commercial purposes. Mr. Matthews remarks on 'articles of barter,' exchanged 'at the great meetings which were held for the initiation of the youths of the tribes.' Among these articles were stone hatchets, first chipped, then ground, the tribes having passed out of the stage in which mere rude flaking sufficed. 'At the conclusion of the ceremonies, before the people dispersed, a kind of fair was held, when natives in whose country stone was plentiful, would barter their things with other people for reeds for making spears, rich plumage of birds, &c. … or for any other articles brought by the various tribes for the purpose of exchange.'16 We can scarcely conceive that this amount of tribal or inter-tribal unity was possible to man really primitive. Backward and conservative as the Australians are, we must not expect to find among them, with their highly complex customary laws, anything like the first beginnings of social regulations. To look for these, even among the naked and houseless hunters of Australia, is to organise failure in this research as to origins.

      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,

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