TRANSACTIONS OF SECTION H. 



913 



(leciJod by 



of deceasod 

 iiid testi(Je< 

 articlt'8 ill 

 •eeu loiij.' in 

 iroperty, its 

 ly examples 

 property in 

 u, others l>y 

 md tribe ^U 

 ins probaiilf 

 th the dead, 

 ial customs. 

 IV age glvts 

 cl.'^es a |)ro- 

 raultifavio IS. 

 he strui'liire 

 ill these lan- 

 lilying elder 

 r iacts relat- 

 ir m I Iviiow, 

 insliip iiniu-?. 

 id the pei> lU 

 ;ept -, no in an 

 le knows ],!,■; 

 ) are youiigw 

 st nece.<sarily 

 than himsell', 

 lat authority 

 (torn ob.'^el•T^'d 

 by his pi'0]ier 

 speakin<r ol a 

 mple and in- 



eu a man Las 

 in of quarrels 

 him, and \<:\l 

 der their pro- 

 lember of the 

 1 not he l;.-ld 



clear -what is 



d to prevt'iit 



bund on e\ery 



;ad among the 



s usually de- 

 e in bartering: 

 bable that the 

 common to all 



f personal coii- 



).ss conflict end 



al settlement, 



iflict a contro- 



iment of some 



day of festival,— sometimes once a month, but usually once a year,— beyond which 

 crimes donot pass. The day of jubilee is a day of forgiveness. The working of 

 tills principle might be illustrated in many ways. 



It has been thus necessary to briefly set foiih certain principles of primitive law, 

 in order that the subject of marriage law in savage society may bo clearly under- 

 .itood. Law begins in .savagery through the endeavour to secure peace, and developed 

 in the highest civili.sation into the endeavour to establish justice. 



Society is organised for the regulation of conduct, and conduct is regulated by 

 law in the several stages of human progress in relation to those particulars about 

 which stu'ious di.sagroement arises. In the early history of mankind it appears 

 from all that we may now know of the matter that the most serious and frequent 

 disagreemei'.t arose out of the relations of the sexes. Men disagreed about women, 

 and women about men. I'^arly law therefore deals to a large extent wit!i the rela- 

 tions of the .sexes. The savage legislator .sought to avoid controversy liy regulating 

 marital relations, and this he did by denying to the individual the right of choice, 

 and providing that certain groups of men should take their wives from certain groups 

 nf women; and further, that the selection of the woman should not be given to the 

 man, nor the .selection ot the man to the woman, but that certain otlicers or elder 

 persons should make the marriage '•ontracc. This method of selection will here be 

 called Legal Appouitment. 



Now, selection by legal appointment exists among all North American tribes, 

 and elsewhere among savages in Australia and other portions of the globe ; but it 

 exists in diverse forms, which may not here be recounted for want of space. But 

 the essential principle is this : In order that controversy may be avoided, marriage 

 .-election is by legal appointment, and not by personal choice. 



But the second fundamental principle of primitive law greatly modifies selection 

 by legal appointment, and gives rise to three forms of marriage, which will be de- 

 nominated as follows : first, marriage by elopement ; second, marriage by capture ; 

 third, marriage by duel. 



It very often happens in the history of tribes that certain of the kinsliip group.s 

 diminish in number while others increase. A group of men may greally increa'*.' 

 in nuinljer while the group of women from whom they are oldiged to accept their 

 wives diminishes. At the same time another group of women ma_^ be large in pro- 

 portion to the group of men to whom they are destined. Under these circumstances 

 certain men have a right to many wives while others have a right to but few. It 

 is very natural that young men and young women should sometimes rekd against 

 the law and elope with each other. Now the second fundamental principle of early 

 law, mentioned above, is that c^ntrover-sy must end, and such termination is secured 

 by a curious provision found among many, perhaps all. tribes. A day is established, 

 sometimes once a moon, but usually once a year, at wliich certain clas.oes of ofl'encea 

 are forgiven. If, then, a runaway couple can escape to the forest and live by tbem- 

 .«elves until the dtiy of forgiveness, they may return to the tribe and live in peace. 

 Marriage by this form exists in many of the tribes of North America. 



Again, the group of men who.se marriage rights are curtailinl b\ diminution of 

 the stock into which they may marry, .sometimes unite to capture a wife for one of 

 their number from some other group. It must be di.-itinctly understood that this 

 capture is not from an alien tribe, but always from a group within the .«;ame tribe. 

 The attempt at capture is resiated, and a conflict ensues. If the cajiture is surces.«- 

 fiil the marriaire is thereafter considered legal'; if unsuccessful, a second resort to 

 c.\pture in the particular case is not permitted, for controver.sy niu.st end. When 

 women are taken in war from alien tribes, they must be adojjted into some clan 

 within the cai)turing tribe, in order that they may become wives of the men of the 

 tribe. When this is done, the captured women become by legal appointment the wives 

 of men in the group, having marital rights in tiie clan which has ado})ted them. 



Tiie third form is marriage by duel. "When a young woman comes to a mar- 

 riageable age it may happen that by legal appointment she is a.'^sigiied to a man 

 who already has a wife, while there may be some other young man in the tribe 

 wlio is without a wife because there is none for him in the group within which he 

 niav marry. It is then the right of tlie latter to challenge to combat the man who 



'1S31.. 3n 





!■ J 



