Chapter IV

EARLIEST EVOLUTION OF LAW

Trace between semi-human sire and son.—Consequent distinction taken between female and female, as such—Consequent rise of habit of Brother and Sister Avoidance.—Result, son seeks female mate from without Note by the editor.

In what, then, we are willing to concede, must have been exceptional circumstances, may thus have been taken that first step in progress which was to lead to such vast advance. In a development of the social qualities depended the whole future of mankind, and here we seem to see their germ and birth.

When, however, we affirm that the triumph of maternal love in the continued companionship of a male child, constituted the solution of the social problem before us, we do not intend to convey the idea that it lay solely in the fact of a simple inclusion of male offspring within a group. Such a condition, however significant in the actual case, has nothing in itself but what is common to the family economy of many animals. It is the normal one, for instance, among many pithecoids, as baboons, &c., where we find the younger males still form an integral part of the horde, although denied all marital rights. But, however inexorable among such species the temporary separation from the females during the actual season of rut, there is at other times a propinquity in amity as members of the same herd, which lessened doubtless the fierceness of the strife during the periodic play of passion, a truce in fact admitting of peace and alliance in offence and defence during most of the year.

With our ancestors there could be no such healing pause, the unnatural sexual modification of the race had rendered it impossible. The non-periodicity of the sexual function in rut would have made the whole year, with two adult males in presence, an interval of trial insupportable to the mere brute. With this race the banishment of the youth would be for all time, and the loss would be not only that of an ally, each exile would become an active enemy. Now we have hinted that the importance, in a potential sense, of a movement towards union, in such creatures, arose precisely from the fact that, on account of the intensity of the relations between male and male, and especially between father and son, their amicable conjunction was only possible under such exceptional conditions as would probably conduce to its stability whenever it did take place.

Indeed such inchoate rule or habit, a corollary of the early idea, as reigns in regulation of marital rights among lower creatures, would not be fully adequate for this higher creation. With lower creatures, might alone confers rights, which feebler force ever seeks each chance to invade, all stratagems being legitimate as a means to that end. With inchoate man such imperfect rule of action had become utterly impossible. The greater endowment in memory and reason entailed a too fatally added hate on non-compliance. For inchoate men the requisite law required such further exactness in definition as should leave no doubt of a meaning, not only to be understood, but to be accepted and obeyed unconditionally.

For between this father and son there was yet no real peace, only a truce, and that enduring but so long as the latter respected those marital rights of the former which we found extending over all that was feminine in the horde. The intelligent acceptance by the intruding junior of the sole right of the senior to union with the females of a group, was its sine qua non, which the dawn of intellectuality in the race as inevitably imposed as it happily permitted. Such a step in advance as a possible obedience, ex animo, to such a law would be immense. Therefrom would issue the vital point of a conception of moral reserves in marital rights as regards the other sex; the germ of a profound and fundamental difference between brute and man. For the first time in the history of the world we encounter the factor which is to be the leading power in future social metamorphosis, i.e. an explicit distinction between female and female, as such. The superlative fact, indeed, in relation to our general argument, appears—namely, that certain females are now to become sacred to certain males, and that both (nota bene) are members of the same family circle.

But what shall be, in such an age, the notes of a law conveying this noble sentiment of sanctity, which, disarming jealousy, could permit peace where before strife reigned? How give the outer expression of the inner feeling, now aroused, of a change in the past intersexual attitude of certain group members? Whence borrow the eloquence which shall ordain rules in restriction of intercourse whilst yet, for Homo Alalus, they must needs be mute in expression.[1] In the primal law alone, as I hope in its portrayal to show, can each condition be comprised and found as such. It will be marked and recognised by a physical trait whose presence is as significant and imperative as it is characteristic of the epoch. For a sentiment of restraint in feeling, whilst articulate speech was yet lacking, could only be expressed by restrictive checks in act and deed, requiring mere visual perception for interpretation—acts we may here note, which, as insulating the individual, would also inevitably tend to consecration.

Now we mentioned in our first chapter that, in connection with the primal law, certain cases of so-called avoidance, and especially that between near relatives, would have interest for us and probably afford aid in proof. We drew attention to the strange features marking these customs, which had rendered their origin a source of wondering conjecture to all inquirers. It may be that precisely the actual anomalism of these characteristics may render them eloquent in our case. In view of our past argument, in very deed, nothing now becomes insignificant in these quaint rules of non-propinquity between certain near relations; nothing inexpressive in the ordinance of non-recognition between individuals well known to each other; nothing not suggestive in the dread of mere contact between those whom nature would place closest together, no lack of import in the strange taciturnity so incongruous with our garrulous later days of unloosed tongues. There is a possible vestige of a past era of dumb show in their eloquent muteness; of connection in their actual utter unreason with a long dead past of all unfamiliar habits and manners. Further, is verily aught lacking, in these latter-day customs of avoidance, of the necessarily archaic features of a possible primeval law? If these in truth were still existent, would they not, with such traits in common, be simply classed with those? Undoubtedly so, as it seems to me.

Now in the course of our argument it has appeared that the inclusion of the son as the second adult male in a group would evolve, as the most primitive rule of action, restriction of intercourse between its component females and the intruder. But in such a group, the former would necessarily be to the latter in the relation of mother and sisters. Such restriction, again, taking the only possible form, would be avoidance of these relations, and thus there is a concurrence in resemblance with that particular habit of avoidance on which we enlarged in our first pages, viz. that between brother and sister (and now less strictly), between mother and son. Do we not thus seem to lay a finger on an actual law, still an every-day working factor in savage life, which is not only identical with, but is in very deed the primal law itself, in form at least? The acceptation of such intolerably irksome restraints as avoidance, in the daily economy of savage life, has seemed forcibly to imply a fundamental cause of profound depth. This cause now seems laid open to us. The unaccountable and seemingly unreasonable restrictions on intercourse which mark it thus betray their appropriate origin in a time of comparative unreason.

This then, the primal law—avoidance between a brother and sister—with appalling conservatism has descended through the ages (in conservance of form, if not of ultimate purpose). It ordained in the dawn of time a barrier between mother and son, and brother and sister, and that ordinance is still binding on all mankind [but in Egypt and Peru, for example, the opposite of this rule, for special reasons, has prevailed]. Between these for ever, a bit was placed in the mouth of desire, and chains on the feet of lust. Their mutual relationship is one that has been held sacred from a sexual point of view, in most later ages. It only remains for us to repeat that it follows that this law, as applied in the group composed of a single family, is, as we pointed out, the parent of exogamy; continuance within the group necessarily and logically entailed marriage without; but, again as we said, it was itself the offspring of the early idea. For this idea, in its assumption that sovereignty in marital right was compatible with solitude alone, was shaken to its depths when a second presence threatened rivalry, and demanded remedy in the action of law, which it has seemed to us could only take the form we have tried to portray[2] in the primal law.