Social Origins and Primal Law. Lang Andrew

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

22

Studies in Ancient History, 1876, p. 41.

23

The late Major Powell, of the American Bureau of Ethnology, used gens of a totem kin with descent in the male line, clan of such a kin with descent in the female line, and his school follows him. Mr. Howitt, on the other hand, uses 'horde' for a local community with female, 'clan' for a local community with male descent.

24

'The Seri Indians,' by W. J. McGee. Report of Bureau of American Ethnology, Washington, 1898.

25

'Siouan Sociology,' Report of American Ethnological Bureau, 1897, p. 213.

26

Studies in Ancient History, second series, p. 265.

27

Studies in Ancient History, second series, p. 46. In an appendix to Mr. Morgan's Ancient Society, Mr. McLennan's terms are severely criticised.

28

I shall call each set indicated by a totem name a 'totem group,' if the members live together; a 'totem kin,' if they are scattered through the tribe.

29

The Patriarchal Theory, pp. 6, 7, 1885.

30

Meaning by Exogamy, not a mere tendency to marry out of the group, but a customary law with a religious sanction.

31

Here the unusual case of the Arunta offers an exception to the rule; a point to be discussed later.