The Story of Law. John M. Zane

the patriarchal family than the one of acquired knowledge of paternity. Women were captured in tribal fighting, and the captive necessarily belonged to the one who took her. Or women were stolen from another tribe from a cause that should here be stated. Property in women and their children would arise. Without speculating on reasons, it is enough to state the fact that among the tribes who passed on their laws to civilized men a custom arose that men must not marry within their own kindred. In the matriarchal stage it seems plain why such a custom might arise, since all the children were brothers, all the uncles were fathers, and all the aunts were mothers. The old and feeble, of course, caused no trouble; they were brutally abandoned and, if not killed, were left to die. This original type of marriage is the so-called marriage outside the kindred or tribe, called exogamous, which probably began with the development of kindreds. On the other hand, the effects of capturing women with the resultant fighting would at least compel the weaker tribes to interdict the capture, and to insist that marriage should take place only with other kindreds in the tribe, and thus would arise the marriage within the tribe, called endogamous marriage. This would lead directly to the marriage by purchase.

      In this stage of society, three forms of customary law had their beginnings. As a habit arising from doubtful fatherhood, the children were required, at some stage of development, to be acknowledged by the father, and in consequence the newborn child was at his disposal to kill or to let live. The hideous practice of infanticide has been given other origins, but they do not seem to be as reasonable as the one that the newborn child was at the father’s disposal. The direct inherited connection of such a right with a former stage of promiscuity is apparent. Whatever the explanation may be, the practice is fully established, and among the dark shadows cast in that former brutish life of man, none are so dark as those arising from infanticide, especially of the female children. Men continued it into the half-civilized stage and it passed into human sacrifice. In the pastoral age, male children were more valuable. But the father’s power of life and death over his children is a fixed fact of the patriarchal family.

      With the institution of marriage came the development of a large body of custom as to different kinds of marriage. Marriage by capture and marriage by purchase, with all the other regular and irregular unions, need not delay the story. We may remark in passing that trial marriages, which certain childishly minded persons now advocate, were tried in the savage state among the Scotch, the Scandinavians, the Celts, and the Germans.

      Gradually the change into the form of family where the husband was the head of the family led to the right to participate in and succeed to the family property being confined to the male line. This passage to the type of family where the male was the head and only relationship through males was recognized by the laws, probably belongs to the nomad or pastoral stage, for the nomadic life would necessarily lead to separations into families, and the natural physical superiority of the male would come into play. It is a curious fact that in Latin the general term for blood-kindred, cognati, originally indicated relationship through the female, although it came to mean any blood relationship, while the later word, agnati, denoted relationship purely in the male line. How this patriarchal family, with the father as the head of the family, further developed, will be more properly noticed later on, but to the savage stage of doubtful paternity belongs the curious custom of the couvade, where the husband took to his bed and simulated the process of his giving birth to the newborn child. He felt that he must make some proof that the child was his own by public proclamation of his labor. Legal fictions come down from a very remote past.

      When marital unions became fixed, the physical superiority of the male, uniting with his other instincts, would sometimes lead to the condition of a man with several mates. But it is always to be borne in mind that a polygamous family would be the exception, not the rule, on account of the inability of the average man to support more than one household. The working of this rule was seen among the Mormons in late years, where only a small proportion of the heads of families were polygamists. As soon as this possession of the female happened there was an opportunity to develop the ideas of chastity and fidelity, with a feeling of jealousy on the part of the male. The reaction of these new phases of life on the law are apparent, and into the law enters the institution of the male’s exclusive possession of the female with her enforced fidelity. The woman now could become guilty, along with her paramour, of the capital crime of adultery.

      The clan or tribe thus had become divided into numbers of families, first matriarchal and later patriarchal families. But these men who had always lived in social communities had become accustomed to the fact that one tribe was responsible as a whole to another tribe for any injury by a member of one tribe to a member of the other tribe. Hence in the development of the family, however it was developed, the one kindred or family was responsible to another kindred or family for any injury by a member of the one family to a member of the other family. It resulted from the social life that these primeval men could not think in terms of the individual. They clung to their ancestral ways and habits of thought. All law was drawn in the form of responsibility of one kindred for all its members to another kindred for injuries to members of the latter kindred. So it was in the case of property, first as tent dwellers with flocks and herds, later as village dwellers with plots of ground, as between tribes the property was recognized only as the property of a tribe, but within the tribe property, except the real estate and afterwards the property conception in real estate, was recognized only as the property of the family. The same responsibility of kindred to kindred applied to injuries to property. To Plato, who like most philosophers thought that he was intended for a lawgiver, although he had little comprehension of the fact that men cannot be molded by laws to a philosopher’s model, it seemed that undifferentiated family property and the responsibility of the whole family were the ideals to be attained by law, even though the Greeks in his time had passed beyond this primitive condition.

      Another element of this primeval life must be taken into account for the effect which it had upon the development of law. This creature found himself in a world of life and death, as well as of great natural forces, earthquake, storm, thunder, lightning, and flood. We can form little conception of what Europe was in the periods of the Ice Ages, with enormous rivers, vast lakes, and endless morasses. The inundations from melting snow and ice can hardly be imagined. These natural phenomena were terrifying. Magic, animism, and shamanism resulting from the terrors and fears of this poor savage need not detain us. A vast mass of different customs as to death, burial, and sacrifice were a natural result. The prevalent savage notions of things tabooed or forbidden are also of much importance in the law. Whatever may have been at the basis of the belief in spirits both good and evil, it is apparent that the conception of a spirit could not have been formed until men through language had gained the idea of personality.

      The human race has never entirely recovered from the stage of fear. Every natural force and phenomenon was a spirit or a god. Devils and angels, spirits of the wood and stream, the lightning, the storm, the tempest, and the flood, the gentle and benign rulers of the spring and the harvest, the fell deities of danger and death, all were required to be propitiated by precious offerings. Every natural object became endowed with a spirit as a god. The gloomy history of human sacrifice and the widely disseminated practice of immolating the widow on the funeral pyre, we need not dwell upon. The frightful religious orgies where the savage returned to the original condition of promiscuity need not be considered. Just where in this sequence of savage thinking came in the worship of ancestors, we need not stop to inquire. It was a stage of savage belief that came to later men, and it created the law of adoption and of wills applied to family property. These practices and beliefs may have produced some temporary good, but they have left stains on the human mind that have been slowly eradicated.

      One feature of this gloomy chronicle deserves notice. No doubt in these ages mental irregularities and insanity were more common than they are to-day, but it would be strange if an insane person should not be thought far more capable than an ordinary being. It long remained the practice for the prophets and sibyls and dispensers of oracles to imitate the ravings of the maniac. The original practices of wizards and magicians were probably based upon imitations of maniacal excitement. Persons who could go into a trance and afterwards relate extraordinary things seen or heard, had a far more valuable vein of exploitation than they have even to-day. There seems to be some connection between these kinds of men and the priests as they were developed. The priest gained his power by pretending