CHAPTER XII

INCEST

508. Definition of incest. Incest is the marital union of a man and a woman who are akin within the limits of a prohibition current at the time in the laws or mores of the group. The primitive notion of kinship did not divide kinship into grades of remoteness as we do. Very often it was counted by classes or age strata. In the totem system all the women of his mother's totem were tabooed to a man, although their cousinship to himself might be very remote. At the same time, he could marry his father's sister's daughter, or his mother's brother's daughter, unless his father and his uncle had married women of the same totem. Inasmuch as a man and his wife must have different totems and the children took the totem of their mother, a man might marry his own daughter. Generally this was forbidden by supplementary rules, but in Buka and North Bougainville it occurs not infrequently.1658 The varieties of the consanguinity taboo are very numerous. They are entirely different in theory under the mother family and the father family. They are now very different in different states of our Union.1659 If the taboo on marriage is not defined in terms of "blood" or assumed kinship, violation of it is not incest. For instance, in the mediæval church, two persons who had been sponsors in baptism to the same child might not marry. Also, if two persons are debarred by affinity, violation is not incest. In England a man may not marry his deceased wife's sister. If he does it, his marriage is unlawful, but it is not incest. The definition of incest must include the notion of a blood connection as blood connection is understood in that group at the time. Other prohibitions may be expedient, or may seem required by propriety (e.g. the marriage of a man with his father's widow), but they do not come under incest.

Restrictions on marriage by kinship, as the people in question construed kinship, go back to the most primitive society. Some very primitive people have intricate restrictions, and they maintain them by the severest social sanctions.

509. Incest notion produced from the folkways. It is evident that primitive people must have received a suggestion or impression of some important interest at stake in this matter. They adopted taboos and established folkways to protect interests. In time these taboos and folkways won very great force and high religious sanction; also a sense of abomination was produced which seemed to be a "natural" feeling. There certainly is no natural feeling. The abomination is conventional and traditional. The Pharaohs, Ptolemies, and Incas, also the Zoroastrians, are sufficient to show that there is no reason for the abomination in any absolute or universal facts. The sanctions by which savage people sustained the taboo were the strongest possible,—exile and death. Here we have, therefore, a social limitation of the greatest force, sanctioned by religion and group consent and growing into an abomination which has come down to us and which we all feel, but which is a product of the most primitive folkways; and yet we do not know the motive for it in the minds of primitive men. In the matter of cannibalism we saw (Chapter VIII) that with advancing civilization a taboo has been set up against a food custom which appears to have been universal amongst primitive men; that is, we have reversed and hold in abomination what they did. In regard to incest we have accepted and fully ratified their taboo.

510. Notion that inbreeding is harmful. This taboo and the reasons for it are a complete enigma unless the primitive people had observed the evils of close inbreeding. Inbreeding maintains the excellence of a breed at the expense of its vigor. Outbreeding (unless too far out) develops vigor at the expense of the characteristic traits. It is very probable, but not absolutely certain, that inbreeding is harmful. Any marriage between persons who have the same faults of inheritance causes the offspring to accumulate faults and to degenerate. Close kinship creates a probable danger that faults will be accumulated. This is a logical deduction. Embryology, at present, seems to teach that there is a combination and extrusion of germ units of such a kind that the physiological process conforms only in a measure to this logical deduction, and the historical-statistical verification of the harm of inbreeding remains very imperfect. It is possible that at first, and within limits, inbreeding is not harmful, but becomes such if repeated often. Is it possible that the lowest savages can have perceived this and built a policy on it? Morgan1660 thinks that it is possible. Westermarck1661 thinks it beyond the mental power of the lowest races. He thinks that, by natural selection, those groups which practiced inbreeding for any reason died out or were displaced by those who followed the other policy. He goes on to propose a theory that persons who grew up, or who now grow up, in intimacy develop an instinctive antipathy to sex relations with each other.1662 While it is true that primitive savages do not observe and reflect, it is also true that, in their own blundering way, when their interests are sharply at stake, they do observe, and they change their ways accordingly. Therefore they appear to us at one time hopelessly brutish; at another time we are amazed at their ingenuity and their mental activity (myths, legends, proverbs, maxims). If the loss or pain is great enough, the savage man is capable of astounding cleverness to escape it. After animal breeding began men had ample opportunity to observe the effects of close inbreeding. There is more doubt now about the penalties of inbreeding than there is about the power of savage men to perceive them and try to escape them, if they exist.

511. Status-wife, work-wife, love-wife. In the primitive horde it appears that there was a prescribed wife for each man, or the classification was such that his choice was restricted to a very small number. The prescribed wife was a status-wife. She alone could hold the position of a true "wife." The man might also capture a woman abroad who would be a worker, or work-wife, and she might win the man, so that she became a love-wife. There would often be a comparison between the children of the status-wife and the children of a work-wife or love-wife, in which the latter would appear the more vigorous. If so, there would be a school in which the advantages of outbreeding would appear as a fact, although not explained.

512. Abomination of incest. The taboos in the mores contain prescriptions as to the allowable consanguinity of spouses. There is a great horror of violating them. This sentiment is met with amongst people who have scarcely any other notion of crime, or of right and wrong. The rules are enforced by death or banishment as penalties of violation. The notion of harm in inbreeding has spread all over the earth. It has come down to ourselves. In the form in which it was held by savage people it was mistaken to such a degree that they might, in spite of it, practice close inbreeding. Our study of the mores teaches us that there must have been, antecedent to this state of the mores in regard to this matter, a long development of interests, folkways, rites, and superstitions.1663 It is believed, not without reason, that the horde life would tend to run into grooves in which the prescribed wife would be a close relative, in the final case a sister. Experience of this might produce the rules of prohibition. The captured wife was also a trophy, and the play of this fact on vanity would always tend to disintegrate the system of endogamy. There are many reasons why endogamy seems more primitive than exogamy, and it required force of interest, superstition, or vanity to carry a society over from the former to the latter. A calamity might come to reënforce the interest,1664 but can hardly be postulated to explain a custom so widespread. All the ultimate causes of the law of incest, therefore, lie beyond our investigation. They are open only to conjecture and speculation. The case is very important, however, to show the operation of the mores on facts erroneously assumed, and their power to work out their effects, as an independent societal operation, without regard to error in the material to which they are applied.

513. Incest taboo strongest in the strongest groups. We shall see, in the cases to be presented, that incest has a wider definition and a stricter compulsion in great tribes, and in prosperity or wealth, than in small groups and poverty. The definiteness of this taboo, and the strictness with which it is enforced, seem to be correlative with the energy of the tribal discipline in general and the vigor of the collective life of the group. Wives can be got abroad, either by capture or contract, only by those who command respect for their power or who use power. On the other hand, endogamy is both cause and effect of weakness and proceeds with decline. Some cases will be given below in which incestuous marriages occur where the parties are unable to obtain any other wives. Neglect of the incest taboo is rather a symptom than a cause of group decline.

519. Incest in civilized states. The ancient kings of Teneriffe, if they could not find mates of equal rank, married their sisters to prevent the admixture of plebeian blood.1687 In the Egyptian mythology Isis and Osiris were sister and brother as well as wife and husband. The kings of ancient Egypt married their sisters and daughters. The doctrine of royal essence was very exaggerated, and was applied with quantitative exactitude. A princess could not be allowed to transmit any of it away from the possessor of the throne. There is said to be evidence that Ramses II married two of his own daughters and that Psammetik I married his daughter. Artaxerxes married two of his daughters.1688 The Ptolemies adopted this practice. The family married in and in for generations, especially brothers and sisters, although sometimes of the half-blood. "Indicating the Ptolemies by numbers according to the order of their succession, II married his niece and afterwards his sister; IV his sister; VI and VII were brothers and they consecutively married the same sister; VII also subsequently married his niece; VIII married two of his own sisters consecutively; XII and XIII were brothers and consecutively married their sister, the famous Cleopatra." "The line of descent was untouched by these intermarriages, except in the two cases of III and VIII." The close intermarriages were sterile. The line was continued by others.1689 The Peruvian Incas, but not other Peruvians, married their sisters.1690 In the Vedic mythology the first man and king of the dead, Yama, had his sister, Yami, to wife. In a hymn these two are represented as discussing the propriety of marriage between brother and sister. This shows the revolt of later mores against what once was not tabooed.1691 The scholars think that Herodotus (III, 31), by his story of the question whether Cambyses could marry his sister, shows that such marriages were not allowed amongst the ancient Persians. They are mentioned as a usage of the magi. In the Avesta they are prescribed as holy and meritorious. They are enjoined by religion. They were practiced by the Sassanids,1692 although in the Dinkart version of the law they are apologized for and to some extent disavowed.1693 After the time of Cambyses such marriages occurred, especially in the royal family. They now occur amongst the Persians.1694

520. In the Chaldean religion the gods and goddesses were fathers, sons, brothers, sisters, and mothers, as well as husbands and wives, to each other. The notions of "son of god" and "mother of god" were very current. Marduk is son of Ea and intercessor for men with him.1695 In the laws of Hammurabi, if a man consorts with his mother after the death of his father, both are to be burned. Incest with a daughter is punished only by banishment. This light punishment may be only a concession to public opinion, since the culprits injured no interest but their own.1696

521. In the Old Testament Abraham married his half-sister by the same father. In 2 Sam. xiii. 13 it is shown that such a marriage was allowable in David's time, but Ezek. xxii. 11 refers to such a marriage as an abomination. Nahor's wife was his niece by his brother. Jacob married two sisters at the same time, both his cousins. Esau married his cousin. Judah took to wife his son's widow, but disapproval of that is expressed. Amram, the father of Moses, married his paternal aunt. These unions were all in contravention of the Levitical law. There are statements of the law which differ: Levit. xviii and xx; Deut. xxi. 20; xxvii. 20-23. In Ezek. xxii. 10 and 11 incest is charged as a special sin of the Jews. In the post-exilic and rabbinical periods the law varied from the old law. In general it was extended to include under the taboo more distant relatives.1697

Marriages between brothers and sisters were allowed in Phœnicia, but were contracted probably only when the woman had inherited something in which her brother had no share.1698

522. In Homer Zeus and Hera are brother and sister. Union of mother and son is regarded as shocking, but not that of brother and sister.1699 Arete was niece and wife of Alcinous, and was especially respected.1700 In the case of Œdipus the union of mother and son, by error, was terribly punished.1701 In the tragedy of Andromache marriages between mother and son, father and daughter, brother and sister, are mentioned as characteristic of barbarians. Dionysius of Syracuse, having lost his wife, married Doris and Aristomache on the same day. With Doris he had three children and with Aristomache four. His son by Doris, Dionysius, married Sophrosyne, his daughter by Aristomache. Dion, the brother of Aristomache, married a daughter of Aristomache.1702 Whether these marriages were extraordinary in Sicily we do not know. They may not represent the current mores as to marriage, but only the shamelessness possible to a Sicilian tyrant. At Athens the only limitations were on the ascending and descending relationships, but it appears that in later times marriages between brother and sister were disapproved.1703

523. The term "incest" was applied at Rome to the case of a man present at the purification of women, on the feast of the Bona Dea, May 1.1704 The sense of the word is, then, nearly equal to "profane." The emperor Claudius married his niece Agrippina and made such marriages lawful. Gaius1705 restricted this precedent to its exact form, marriage of a brother's daughter, not sister's daughter, and further restricted it, if the brother's daughter was in any forbidden degree of affinity.

524. In the Ynglinga saga Niord takes his sister to wife, because the law of Van-land allowed it, although that of the Ases did not.1706 Other cases in the Edda go to show that the taboo on such marriages was not in the ancient mores of Scandinavia.1707 In the German poems of the twelfth century it belongs to the description of the heathen kings that they are fierce and suspicious towards all who woo their daughters, and that they sometimes intend to marry their own daughters after the death of their queens.1708

525. Those Arabs of Arabia Felix who practiced fraternal polyandry also formed unions with their mothers.1709 Robertson Smith thinks that this means their fathers' wives.1710 The Arabs were convinced of the evil of marriage between cousins.1711

526. A mediæval traveler reports of the Mongols that they paid no heed to affinity in marriage. They took two sisters at once or in succession. The only limitation was that they must not marry mothers, daughters, or sisters by the same mother.1712 In Burma and Siam, at least until very recent times, in the royal families of the different subdivisions brothers and sisters married.1713

527. In Russia, in the seventeenth century, men in the government service who were often sent out on duty and had no homes, and whose incomes were small, were reproached by an ecclesiastic with the fact that they lived in vice with their mothers, sisters, and daughters.1714 Marriages between persons related by blood are frequent in Corsica and are considered the most auspicious marriages.1715

528. The Kabyles stone to death those who voluntarily commit incest and the children born of incestuous unions. The taboo, in their usage, includes parents and children-in-law, brothers and sisters-in-law, and foster brothers and sisters.1716

529. In 1459 there died at Arras a canon, eighty years old, who had committed incest with his daughters and with a granddaughter whom he had had by one of them.1717

530. Where the line is drawn, and why. The instances show that the notion of incest is by no means universal or uniform, or attended by the same intensity of repugnance. It is not by any means traceable to a constant cause. Plutarch1718 discussed the question why marriages between relatives were forbidden by the traditional mores of his time. He conjectured various explanations. Fear of physical degeneration is not one of them. We must infer that such consequences had not then been noticed or affirmed. We have found cases in which no taboo existed and cases in which close intermarriages are especially approved. An operation of syncretism, when different usages and ideas have been brought together by conquest and state combinations, must be allowed for. In some cases a great interest was thought to be at stake; in other cases no importance was attached to the matter. The mores developed under the notions which got control by accident or superstition. There was no rational ground for the taboo, and none even blindly connected with truth of fact, until the opinion gained a footing that close intermarriage was unfavorable to the number or vigor of the offspring. Unless that opinion is accepted as correct there is no reason for the taboo now.1719 Incest is, for us, a thing so repugnant that we consider the feeling "natural." We may test the feeling by our feeling as to the marriage of first cousins. First cousins are very commonly married in England. Such marriages are under no civil or ecclesiastical prohibition, and although many persons disapprove of them on grounds of expediency, and parents might refuse to consent to them, they do not come under the abomination of incest. In many states of the United States marriages of first cousins are illegal. In Kansas they are put under heavy penalties. We hear no preaching against close in-marriage. The matter is not discussed. The limitations are set in the current mores and are accepted without dispute. Evidently the only question is where the line should be drawn. If it was proposed to forbid the marriage of first cousins some discussion might be aroused. If it was decided wise to forbid such marriages, it would take long for such a sentiment of repugnance to be developed in regard to them as we now feel in regard to the marriage of sisters, or even of aunts and nieces. In history the movement must have been in the other direction. The repugnance arose first and then became a ground for the rules.

531. Human self-selection by taboo and other-worldliness. Laws against incest and all caste rules which arbitrarily limit the number of persons whom a given individual may marry may be regarded as blind attempts of mankind to practice some kind of self-selection. Sex selection inside the human race is the highest requirement which life now addresses to man as an intelligent being, and the very highest result which our sciences could produce would be to give us trustworthy guidance in a policy of sex selection. It is not possible for some persons to dispose of the life determination of others, as breeders control the union of beasts. What is needed is that individuals, in making their own decisions for their own self-realization, shall understand the whole range of interests which are involved, and shall do what it is expedient or necessary to do to satisfy them all. In times past men and women have thus limited themselves by rules about incest, group and class marriage, rank or caste, religion, wealth, and other considerations. In every society there are traits which are approved and others which are disapproved in each sex. In marrying, people are influenced by these appreciations and they select for or against them. Thus marriage is controlled by a complicated selection according to a number of standards which prevail at the time and place. At present the popular view seems to be that all standards are false, and that the limitations ought to be trampled on as representing abandoned ideals. It is thought that the whole matter ought to be left to the control of an unintelligent impulse, which is capable of any caprice, but whose authority is imperative. Perverse as the old restrictions often were, they had in them a notion of self-selection such as is needed now, if only the criteria and standards which are correct can be ascertained. The old restrictions contained a notion of breeding up, a notion which is by no means false, if we can get a rational idea of what is "up." No marriage ought now to be contracted without full application of all we know about heredity and selection. If, in any society, marriages were thus contracted, the effect would be most favorable on posterity, and on the power in action and the perpetuity of the group, for the net result would be that those who are least fit to propagate the race would be the ones who would be left unmarried or would marry each other. In the latter case their posterity would soon disappear, and the evil factors would be eliminated. A father now refuses his daughter to a drunkard, a criminal, a pauper, a bankrupt, an inefficient man, one who has no income, etc. Some men refuse their daughters to irreligious men, or to men who are not of their own sect or subsect. Some allow inherited wealth, or talent, or high character, etc., to outweigh disadvantages. In short, we already have selection. It always has existed. The law of incest was an instinctive effort in the same direction. The problem is the same now as it always has been,—to refine and correct the standards and to determine their relative importance.

532. Restrictions by biological facts as yet too uncertain. As yet, undoubtedly, the great reason why people are reluctant to construct a policy of marriage and population on biological doctrines is that those doctrines are too uncertain. The reluctance is well justified. Hasty action, based on shifting views of fact and law, would simply add new confusion and trouble to that produced by the customs and legislative enactments which we have inherited from the past and which were based on transcendental doctrines. So long as we do not know whether acquired modifications are inheritable or not, we are not prepared to elaborate a policy of marriage which can be dogmatically taught or civilly enforced. This much, however, is certain,—the interests of society are more at stake in these things than in anything else. All other projects of reform and amelioration are trivial compared with the interests which lie in the propagation of the species, if those can be so treated as to breed out predispositions to evils of body and mind, and to breed in vigor of mind and body. It even seems sometimes as if the primitive people were working along better lines of effort in this matter than we are, when we allow marriage to be controlled by "love" or property; when our organs of public instruction taboo all which pertains to reproduction as improper; and when public authority, ready enough to interfere with personal liberty everywhere else, feels bound to act as if there was no societal interest at stake in the begetting of the next generation.

533. It is self-evident that there ought to be no restriction on marriage except such as is necessary to protect some interest of the parties, their children, or the society. The necessity must also be real and not traditional or superstitious. The evils of inbreeding are so probable as to justify strong prejudice against consanguine marriages. If primitive men set up the taboo on incest without knowing this, they acted more wisely than they knew. We who have inherited the taboo now have knowledge which gives a rational and expedient reason for it. The mores, therefore, still have a field of useful action to strengthen and reaffirm the taboo. There is also a practical question still unsettled,—whether the marriage of first cousins should be included in the taboo.

CHAPTER XIII

KINSHIP, BLOOD REVENGE, PRIMITIVE JUSTICE, PEACE UNIONS

534. Kinship. Kinship is a fact which, in the forms of heredity and race, is second to none in importance to the interests of men. It is a fact which was concealed by ignorance from primitive men. It is yet veiled in much mystery from us. Nevertheless the notion of kinship was one of the very first notions formed by primitive men as a bond of association, and they based folkways upon their ideas about it. They deduced the chief inferences and handed the whole down to succeeding generations. Therefore the assumed knowledge of the facts of kinship was used as the basis of a whole series of societal conventions. The first construction was the family, which was a complete institution. Of course marriage was a relationship which was controlled and adjusted by the family ideas. From the folkways as to kinship all the simplest conceptions of societal rights and duties were derived, societal institutions were constructed, and societal organization has grown up.

535. Forms of kinship. That a certain child was born of a certain woman, after having been for some time in physical connection with her body, is an historical and physical fact. That another child was born of the same mother is another fact, of the same order. It may be believed that these facts produce permanent life relations between the mother and children, and between the children, or it may be believed that the facts have no importance for duties, interests, or sympathies. The relations, if recognized, may be defined and construed in many different ways and degrees. They could also be carried further by including more generations, or wider collateral branches, until kinship would include a sib, or family in the widest sense,—those related within some limit of descent and cousinship on a system decided on (mother family, father family, etc.) and traditional. Kinship is purely matter of fact and history, and therefore rational. There is no "natural affection." There is habit and familiarity, and the example and exhortations of parents may inculcate notions of duty. Sentiments and sympathies will then be produced out of familiarity in life, or out of use and wont. The construction and limits of kinship in any society are products of the folkways, or—inasmuch as the system is built up with notions of welfare and rights and duties—of the mores. In fact, since the folkways in regard to this matter begin at a very primitive stage of human life, run up to the highest civilization, and are interwoven with the most tender sympathies and ethical convictions at all stages, kinship is one of the most important products of the folkways and mores. It is, in fact, the most important societal concept which the primitive man thought out, and it would be such even if we were now compelled to reject it as erroneous.

536. Family education. No doubt the folkways about kinship are produced in connection with views about interests, and in connection with faiths about procreation, and impressions produced by experience. The mother and children live in constant contact and intimacy. The family grows into an institution which takes its nature from the traditional and habitual behavior of its members to each other in daily life. Use and wont have here a great field for their constructive operation. Each family (mother and children) is independent and makes its own world, in which nearly all its interests are enfolded. There are constantly recurring occasions for acts of a reciprocal character, and such acts especially build up institutions. The family is also an arena in which sympathies are cultivated, which does not mean that they are always nourished and developed. Habits are formed and discipline is enforced. Rules are accepted from custom and enforced by authority and force. Rights and duties are enforced as facts long before they are apprehended as concepts.

537. Kinds of kinship. The sib, or large family, including all those who are known to be related at all, is a group of very varying importance in different societies. In some societies the common bond is strong and produces important social consequences. In other cases no heed is paid to relationship beyond first and second cousins. Although the Yakuts keep up the rod, or great family, for some purposes, we are told that often "nothing unites the members of the rod but a vague tradition of common descent."1720 Whether individuals can break the ties of kin, by voluntary act, is answered differently in different societies. The Salic Franks allowed a man to do it by breaking his staff (which was his personal symbol) in a ceremonial act.1721 If kinship depends on connection of the body of the child with that of the mother, his nourishment by her milk is another ground of kinship. The Arabs recognize this tie of a child to its foster mother. Later the child is nourished by food shared with commensals. Hence the tie of commensality forms a basis of social union like kinship.1722

538. How mores are formed. The family groups which are in local neighborhood have, in general, the same folkways as an inheritance, but variations occur from varieties of character and circumstances. The variations are life experiments, in fact, and they lead to selection. In the community as a whole the mores of family life are selected, approved, and established, and then handed down by tradition. It may be believed that there is a common interest of the entire larger group in the education and treatment of children, and that all the adults recognize that interest more or less completely. The big group, therefore, molds notions of consanguinity, and the sanctions of tribal authority and public opinion coerce all to observe the modes of family life which the ruling authority thinks most expedient for the group interests.

539. Family and marriage. The family institution must have preceded marriage. In fact, marriage appears, in ethnography and history, as the way of founding a family and as molded by the family mores existing in the society.

540. Goblinism and kinship. Blood revenge. Integration of kin relations was produced by goblinism. This furnished an interest which impelled to development of the kin idea. If a man was murdered, his ghost would seek revenge, just as a man while alive would have sought revenge for a smaller injury. The ghost was dangerous to two persons or classes of persons, the murderer and those near the corpse. The latter would be, almost always, his kinsmen. It behooved the latter, therefore, if they wanted to appease the ghost and save themselves, to find the murderer and to punish him. Hence the custom of blood revenge. It was not due to kin notions, but to goblinistic notions. Kin only defined those who came under the obligation. In this way kin became a tie of mutual offense, defense, and assistance, and kin groups were formed into societies,—we-groups or in-groups,—inside of which there was comradeship, peace, law, and order, while the relation to all out-groups was one of suspicion, hostility, plunder, and subjugation if possible. The primary notion of kin was embodied in formulæ about blood,—which were only figures of speech,—which have come down to us, so that propositions about blood are used now to express our notions of kinship, heredity, etc. In fact, according to modern embryology, not a drop of blood passes from either parent to the offspring. Superstitions about blood (seat of the soul or life, etc.) helped to develop the notion of kin. The primitive idea is that the ghost of a murdered man can be appeased only by blood. The blood of Abel cried unto God from the ground. Some peoples go out to kill anything, in order that blood may be shed and so the ghost may be satisfied.

541. Procreation. Forms of the family. The notion of kin was so elastic that various conceptions of procreation have been grafted upon it, and various ways of organizing the family, or of reckoning kinship, have been connected with it. Mores grow upon the notions of kinship. They dictate modes of behavior and ideas of right and duty, and train all members of the society in the same. The relation of father and child is known to few persons, perhaps only to two. Kinship through the father, therefore, seems to uncivilized people far less important than kinship through the mother. When the father relationship is regarded as the real tie and is made the norm of kin groups, great changes are produced in the mores of the mother family.

543. Blood revenge and the in-group. Blood revenge is out of place in the in-group. It would mean self-extermination of the group. It would serve the interests of the enemies in the out-groups. Hence the double interest of harmony and coöperation in the in-group and war strength against the out-groups forces the invention of devices by which to supersede blood revenge in the in-group. Chiefs and priests administered group interests, especially war and other collisions with neighbors, and they imposed restraints, arbitration, or compensation in internal quarrels. Cities of refuge and sanctuaries secured investigation and deliberation to prove guilt and determine compensations. The chiefs and priests thus modified or set aside kin law by inchoate civil forms. Then criminal law and penalty took the place of retaliation. Between groups blood revenge was only a detail of the normal relations of hostility and violence. Out-groups, however, sometimes made agreements with each other to limit blood revenge and vendetta. White men have had trouble with red men and black men because their customs as to relationship were not on the same level. The whites in New York and Pennsylvania colonies could not understand why the Indians were indifferent to their demands for the surrender of an Indian who, in time of peace, had killed a white man. According to Indian ideas the bloodshedding did not concern the civil body (tribe), but the kin group (clan).1732 A wife was not included in blood revenge. Her relation to her husband was not one of "blood." It was institutional. Therefore it was not so strong as the tie of sister to brother by the same mother.

544. Institutional ties replace the blood tie. In the history of civilization several institutional ties have become stronger than the blood tie, but the primitive man, who has not yet accepted any tie as equal to the blood tie, always resists this change. Kinship was lost by separation, and fire superseded it as a bond of association. Fire being kept and lent became a unifying force, because, in effect, all united in a common effort to get and keep it.1733 Common religion (sacrifices) also became a bond of union. The common sacrifices at Upsala held the scattered Swedes in unity, and served also as a peace bond, although not a sufficient one.1734 It is said also of the Brahuis, in Baluchistan, that the two bonds which unite the confederacy are common land and common good and ill, "which is another name for common blood feud."1735 Changes in the numbers in the group, or in life conditions, make some other element more important than kin. Then that element becomes the societal bond. Then the folkways, ideas, and sentiments change to adapt themselves to the new center of interest. Throughout the Occident the institutional tie of man and wife is rated higher than any tie of kinship.

545. Peace in the in-group. Government, law, order, peace, and institutions were developed in the in-group. So far as sympathy was developed at all, it was in the in-group, between comrades. The custom of blood revenge was a protection to all who were in a group of kinsmen. It knit them all together and served their common interest against all outsiders. Therefore it was a societalizing custom and institution. Inside the kin-group adjudication, administration of justice by precedents and customs, composition for wrongs by payments or penalties, amercements by authority for breach of orders or violations of petty taboo, and exile took the place of retaliation. In the in-group it was the murderer who had to fear the ghost of the murdered. Religious rites absolved the murderer from the ghosts or gods and delivered him from the furies, who demanded revenge. The Hebrew law provided cities of refuge for those who were guilty of accidental homicide.1736 The manslayer could go home at the death of the high priest.1737 In 2 Sam. iii and iv are cases of blood revenge and of efforts to suppress it. The homicide in chapter iv is not a case of blood revenge but of partisan murder.

546. Parties to blood revenge. It was a very serious modification of blood revenge when it was extended so that any kinsman of the murdered man was bound to kill any kinsman of the murderer. Hagen1738 says: "No regulated societal common life is possible where blood revenge is in full operation; not even on the primitive stage of the Bogjadim state," a village in German New Guinea. This is true if blood revenge is allowed in the in-group, or if the in-group has very low integration, for blood revenge sets every man against his neighbor and makes society impossible. Krieger1739 says of the same people: "The comradeship of clansmen with each other in respect to their attitude towards out-groups is most definite in blood revenge during the stage between the kin-group organization and the lowest state organization." If a nation stops in that stage, or even degenerates a little, blood revenge becomes a symptom of a state of societal disease. It becomes firmly fixed, is elaborated, continues beyond the stage of other things at which it can be useful, and, as an institution, becomes a caricature. What is lacking is an authority which can impose commands on the in-group and extrude blood revenge from it. The Naga, in northeastern India, fifty years ago lived in villages in which, if two men quarreled, all the others took sides with one or the other and civil war ensued. The experience of these quarrels and of blood revenge produced "a reluctance to enter into quarrels which entailed consequences so disastrous, and hence a society living in general peace and honesty." The situation, however, was unstable, and once or twice a year they had grand fights in which the entire village participated by way of clearing off all old scores. Evidently they had no adequate government or administration of justice. Revenge is still, in case of a murder, "a sacred duty, never to be neglected or forgotten," although English rule has modified the old usages and may bring those people into a better political organization. Revenge is still a kin affair, not a civil affair. It is handed down from generation to generation, including innocent victims, women and children, and devastating whole villages. It becomes fanatical and men will sacrifice their most serious interests to it. If the male kinsmen die out or are unable to keep up the feud, others may be hired to fulfill the duty.1740

549. Peace units and peace pacts. The in-group when it is merged in a state by conquest and compounding becomes a peace unit. All in the same civil body are united by a peace pact. If the central authority cannot suppress local war and private war, it is inadequate, and the state is liable to disruption. The Roman empire was a peace unit of high integration and complete efficiency. It could not, however, maintain itself, and broke up by internal strife which the central authority could not suppress. The Roman law was the peace pact of that peace unit. It was so good a solution of the collisions of human interests that it has been borrowed, or used by modern states as a model. The Romish church in the Middle Ages tried to rule the world, not by force but by dogmas like catholicity. Catholicity was an attempt to build a peace pact on ideals, and big ideas, and sympathies. Islam also tries to serve as a peace pact, but Moslem states have freely fought with each other. Islam does not contain an adequate philosophy. Its theories of society are theocratic and do not meet the actual facts and problems. If a union of two or more states is made, even for the purpose of aggregating more force for war, it will necessarily be a peace union when regarded from within. A confederation is the highest organization yet invented for the purpose of making a great peace union without interfering with domestic autonomy. Norway and Sweden, Austria and Hungary, are states united in couples under a rational peace pact. The former couple has been disrupted; the latter is convulsed by quarrels between its members. The United States is a great peace unit, with a rational peace pact as a bond of union. It has gone through one great convulsion, from which it issued with the peace pact greatly strengthened. It tends to become a consolidated empire. This can be seen in the propositions to turn over various subjects of domestic importance to the federal authority. Happiness and prosperity have been due to the peace pact, valid over a continent, with immunity from powerful neighbors. We now think that we will renounce all this and go out after world power and glory so as to be like the other nations.

550. The instability of great peace unions. Now that we have the laws of Hammurabi we can see that the Euphrates valley was organized into a peace unit with a very complete and highly finished peace pact twenty-five hundred years before Christ. All the ordinary cases of discord and diverse interest were provided for under an elaborate system of laws as good as that of a modern European state. The later states of western Asia were involved in war by conflicting interests, ambition, and jealousy until the time of Alexander the Great. The smaller states were at last all submerged in the Roman empire. All the constructive work has been overthrown again and again. Only within a century or two has a structure been set up which has more stability, but it is all in jeopardy now. A union of the existing groups could not be brought about but by conquest, and that would mean very great wars, yet all are ready, by virtue of their institutions and ideas, to merge in a confederation in which peace would reign and incalculable blessings would result.

551. The Arabs. The Arabs in the time of Mohammed were a nation inhabiting a territory which kept them from feeling any national sentiment of unity.1757 The tribe and kin group were their strongest societal units. At the time of Mohammed's birth blood revenge between the kin groups was so destructive that all were instinctively struggling towards devices which might supersede it. In the century preceding Mohammed's birth the nation had been agitated by social movements in which the old was falling and the new was pushing out to acceptance and establishment. "It seemed as if the persons were too big for the circumstances."1758 If a tribe ever was a peace group amongst the Arabs, we have no proof of it. Islam was an attempt to unite the whole nation into a peace group by religion. The attempt succeeded, and the nation, in the élan of its new unity and energy, set out to conquer its neighbors. It had no state organization. The caliph was theological as well as civil head. The Arabs had no political experience. The leaders in the kin groups were the only chiefs they had, and they established a kind of aristocracy in Persia, but the first caliphs were pure despots, like negro heads of states. The Arabs plundered the conquered states. The greatest duty known to the Arabs was blood revenge. It was their only social engine by which to restrain crime and secure some measure of order. Blood was, in their view, more holy than anything else. It put religion in the background. The kin group was the realized ideal. The gods were comparatively insignificant.1759 In old Arabia a man engaged in a blood feud must abstain from women, wine, and unguents.1760 Within the kin group there was no blood revenge, but a guilty person was held personally responsible. A guest friend ("stranger within thy gates") was not liable to blood revenge with his own kin. His status was in the tribe in which he was a guest, by which he must be defended against his tribe of origin, if the case arose.1761 The Arabs thought it dishonorable to take money for blood guilt. It was, they thought, like selling the blood of one's kin. Bedouin tribes in the nineteenth century refused to settle blood feuds by payments. Arbitration was admitted in the time of Mohammed, at Medina, where old blood feuds had become intolerable by their consequences.1762 In Egypt, in the first half of the nineteenth century, blood revenge was still observed. Third cousins of the murderer and his victim were the limits of responsibility on either side.1763

552. Development of the philosophy of blood revenge. Blood revenge was nothing but an exercise of revenge and it had all the limitations of revenge. It produced a rude fear of consequences and had some of the effects of the administration of justice. However, it had no process of proof, no due notion of guilt, no means of following up responsibility. Therefore it could not infuse fear into the hearts of the guilty. It was entirely irrational. Therefore it ran into extravagance without due connection of guilt and punishment, and it cost very many lives of the innocent. In primitive society injuries consist in the invasion of a man's interests through his property, his wife, and his children, or by maiming or killing himself. Each one, when he considers himself injured, tries to redress himself. If he is not able to do it he falls back on others for aid. The kin group is the only body which has ties of sympathy and obligation to him. The kin group may be bound to give help without any regard to the justness of the quarrel, or it gets the function of a jury. Evidently the latter case is more reasonable and civilized than the former. In the original institution of blood revenge the individual was called on to sacrifice himself for others. He was a bad man if he began an inquiry into the conduct of the man who called for the sacrifice. He ought to obey the call whether it came from one who had done right or wrong.1764 Evidently, in this view, the institution was a case of social duty, not of goblinistic service to the dead. It was a further application of rationalism and justice when the behavior of the deceased was weighed before decreeing blood revenge. If the kin group decides that the injury is real and that it is properly called on to interfere, routine of method of investigation will be developed, rights will be defined, the duty of blood revenge will be defined and limited, and proceedings of redress will be invented. All this work is done in the folkways and by the methods of folkways. The steps lie along the line of advancing civilization. The notion that a man who had committed a murder and had been killed for it had got what he deserved is a very recent and civilized notion. That would not keep his ghost from demanding to be laid by blood atonement. This was the root idea out of which the custom of blood revenge arose. Blood atonement was a notion in goblinism. It was one of the very earliest cases we can find in which there was a notion of duty and social obligation. The kin were those on whom the duty fell. The strong sympathy of men of the same kin was a consequence, not a cause, but it superseded, later, the original cause. At first, the play of revenge gave satisfaction to wounded vanity, but that could only last while the case was personal and close, not when the cases and the obligations were remote and institutional. Another remoter, and perhaps unforeseen, consequence was the deterrent effect on crime. The law of retaliation also, "an eye for an eye," was a law. It had a primitive and crude justice in it. It has come down to our own time in "reprisals" as practiced in international quarrels, which include also the solidarity of responsibility of all in a group for the torts of each member of it. By producing a solidarity of interest on both sides blood revenge helped to produce a social philosophy. It also made each interest group a peace group inside, because only by being a peace group could it conserve all its force. Thus the war interest against outsiders and the interest of concord inside worked together to produce order, government, law, and rights.

553. Alleviations of blood revenge. The Arabs, in their efforts to supersede blood revenge, tried compurgation, tribunals, payments in composition, banishment, and arbitration. Many tribes which have adopted Mohammedanism still practice blood revenge.1765 Amongst the Kabyles a man falls under it if he kills another by accident, or by the fault of the victim, or in preventing a crime.1766

554. The king's peace. In the history of civilization the devices to do away with blood revenge are those which have been incidentally mentioned. The last means of suppressing all forms of private war was the king's peace. In modern states due respect to the king required that there should be no quarreling or fighting in his presence. His presence was interpreted to mean in or near his residence, his court, and his environs. Then his peace was interpreted to cover his highroads, and his jurisdiction was presently held to go as far as his peace, because he must have authority to enforce his peace. When small states were united into big ones the peace bond had to be extended over the larger unit. Gradually all petty jurisdictions were absorbed, all justice and redress came from the king or in his name, and private redress was forbidden. For a long time it seemed that the freeman's prerogative was being taken from him. As long as the duel survives the movement is incomplete.

555. Origin of criminal law. When the state took control of injuries and acts of violence and undertook to revenge them on behalf of the victims, as well as in vindication of public authority and order, injuries became crimes and revenge became punishment. Crimes were injuries which could be compensated for, and also violations of the king's peace, that is, of public welfare. In the latter point of view they brought the king's vanity into play. The German emperor Frederick II, by his ferocity against rebels, showed how potent wounded vanity is, as a motive, even in an able man. The crime of treason or rebellion always excites the vanity and fierce revenge of civil authority. It is beyond question that the state in its penalties simply took over the usages of kin groups in inflicting retaliation or gratifying revenge. It did not philosophize. It assumed functions, and with them it took the methods of procedure and the instrumentalities which it found in use for those functions. Criminal law, therefore, and criminal administration were developed out of blood revenge when it was rendered rational and its traditional processes were subjected to criticism.