TRANSACTIONS OF SECTION H. 913 



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

 •crimes do not pass. The day of jubilee is a. day of forgiveness. The working of 

 this principle might be illustrated in many ways. 



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

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

 stood. Law begins in savagery through the endeavour to secure peace, and developes 

 in the highest civilisation 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 serious disagreement 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 

 disagreement arose out of the relations of the sexes. Men disagreed about women, 

 and women about men. Early law therefore deals to a large extent with the rela- 

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

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

 man, nor the selection of the man to the woman, but that certain officers or elder 

 persons should make the marriage contract. This method of selection will here be 

 called Legal Appointment. 



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 

 selection 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 kinship groups 

 diminish in number while others increase. A group of men may greatly increase 

 in number while the group of women from whom they are obliged' to accept their 

 wives diminishes. At the same time another group of women may be laro- e 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 rebel against 

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

 law, mentioned above, is that controversy 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 which certain classes of offences 

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

 selves until the day 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 whose marriage rights are curtailed by diminution of 

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

 their number from some other group. It must be distinctly understood that this 

 capture is not from an alien tribe, but always from a group within the same tribe 

 The attempt at capture is resisted, and a conflict ensues. If the capture is success- 

 ful the marriage is thereafter considered legal ; if unsuccessful, a second resort to 

 capture in the particular case is not permitted, for controversy must end When 

 women are taken m war from alien tribes, they must be adopted into some clan 

 ES'wi 6 Ca f Ft in .' in f tnb °' ln °«ier 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 the clan which has adopted them. ' 



Ihe third form is marriage bv duel. When a young woman comes to a mar- 

 riageable age it may happen that by legal appointment she is assigned to a man 

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

 wiio is without a wife because there is none for him in the group within which ha 

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



1884. 3 



