472 



SCIENCE 



[Vol. IV., No. 94. 



several stages of human progress in relation 

 to those particulars about which serious dis- 

 agreement 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 disagreements 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 relations 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 else- 

 where among savages in Australia and other 

 portions of the globe : 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 hy legal appointment, and 

 not b}^ 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 denominated as fol- 

 lows : first, marriage by elopement ; second, 

 marriage by capture ; third, marriage by duel. 



It very often happens in the histor}^ 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 large in 

 proportion to the group of men to whom they 

 are destined. Under these circumstances, cer- 

 tain men have a right to many wives, while 

 others have a right to but few. It is very 

 natural that j'oung men and young women 

 should sometimes rebel against the law, and 

 elope with each other. Now, a fundamental 

 principle of early law is that controversy 

 must end ; and such termination is secured by 

 a curious provision found among many, per- 

 haps all, tribes. A day is established, some- 

 times once a moon, but usually once a year, 

 at which certain classes of offences are for- 

 given. If, then, a runaway couple can escape 

 to the forest, and live by themselves until the 



da}' 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 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 distinctly un- 

 derstood 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 successful, 

 the marriage is thereafter considered legal ; 

 if unsuccessful, a second resort to capture in 

 the particular case is not permitted, for con- 

 troversy must end. When women are taken 

 in war from alien tribes, they must be adopted 

 into some clan within the capturing 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 

 the clan which has adopted them. 



The third form is marriage by duel. When 

 a young woman comes to marriageable 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 who is without a wife, because there 

 is none for him in the group within which he 

 may marry. It is then the right of the latter 

 to challenge to combat the man who is entitled 

 to more than one, and, if successful, he wins 

 the woman ; and by savage law controversy 

 must then end. 



All three of these forms are observed among 

 the tribes of North America ; and they are 

 methods by which selection by legal appoint- 

 ment is developed into selection by personal 

 choice. Sometimes these latter forms largely 

 prevail ; and they come to be regulated more 

 and more, until at last they become mere 

 forms, and personal choice prevails. 



When personal choice thus prevails, the old 

 regulation that a man may not marry within 

 his own group still exists ; and selection within 

 that group is incest, which is always punished 

 with great severity. The group of persons 

 within which marriage is incest, is always a 

 highly artificial group : hence, in early society, 

 incest laws do not recognize physiologic con- 

 ditions, but only social conditions. 



The above outline will make clear the fol- 

 lowing statement, that endogamy and exogamy, 

 as originally defined b} r McLennan, do not 

 exist. Every savage man is exogamous with 

 relation to the class or clan to which he may 



