effected by taboos: every action is taboo to him which might bring him into dangerous contact with others.[72] When, therefore, we learn that the Flamen Dialis was subject to a very large number of taboos, all of which find analogies, while some find their exact counterparts, in the taboos laid on the divine priests and kings previously mentioned; and when we further discover that Preller,[73] on totally different grounds, considered the Flamen to have been "the living counterpart" of Jupiter, it seems not unreasonable to regard the Flamen Dialis as the human embodiment of the sky-spirit.
The Flamen, according to Plutarch (_R. Q._ 40), was forbidden to anoint his body in the open air, _i.e._ _sub Jove_; and of the Mikado we are told, "Much less will they suffer that he should expose his sacred person to the open air."[74] The Flamen was forbidden to touch meal or raw meat, _i.e._, meal or meat which might be consumed by others; so, too, the vessels used by the Mikado were "generally broke, for fear they should come into the hands of laymen; for they believe religiously that if any layman should presume to eat his food out of these sacred dishes, it would swell and inflame his mouth and throat."[75] For the many other taboos imposed on the Flamen, I must refer to Mr.
Frazer's great work.[76] I will here only mention one, which is not explicitly explained in the _Golden Bough_. If the Flamen's wife died, he had to resign (_Q. R._ 50). Now, it is obvious from this that a widowed Flamen was somehow dangerous or in danger, and that the danger was one which re-marriage would not avert. I submit, therefore, that a widowed Flamen was considered in danger of sudden death, and that this danger (a danger to the community, which might thus lose the sky-spirit) consisted in the probability that the soul of the departed wife might tempt away the soul of the living Flamen. In Burmah, proper precautions are taken to prevent a baby's soul from following that of its dead mother, or the soul of a bereaved husband or wife from rejoining the lost one, or to prevent the soul of a dead child "from luring away the soul of its playmate to the spirit-land."[77] But accidents will happen, and it is so important for an agricultural community to have the sky-spirit under direct control, that the Romans were doubtless well advised in running no risks, and in transferring the spirit into another Flamen.
IX. TABOOS.
In fairy tales it is not surprising that the hero should be forbidden to see his wife on certain days, or whilst she is washing, or at night, and that he should be required to take precautions lest he should take her unawares in one of the forbidden moments.[78] But it is surprising to find that the prosaic Roman punctiliously observed fairy etiquette in these matters, and habitually behaved like an inhabitant of fairy-land. See _R.
Q._ 9 and 65. It is also surprising to discover that in Italy, where, owing to "the vigorous development of the marital authority, regardless of the natural rights of persons as such," the wife's "moral subjection became transformed into legal slavery,"[79] the wife was "exempted from the tasks of corn-grinding and cooking," because, according to Mommsen, those tasks were menial.[80] The exemption is mentioned by Plutarch in _R. Q._ 85; but we must take leave to question Mommsen's explanation. The exemption is not an exemption, but a prohibition: it is identical with the taboo laid on the Flamen Dialis (_R. Q._ 109), and has the same object. Doubtless if a Roman ate food touched by a woman, "it would swell and inflame his mouth or throat," or have some disastrous effect. For that even indirect contact with women at certain periods, _e.g._ child-birth, &c., is highly dangerous, is a belief found amongst the Australian blacks and the Eskimo, the Indians of North America, and the Kafirs of South Africa. An Australian blackfellow, having been brought accidentally into this dangerous contact, died of terror within a fortnight.[81] It is not strange, therefore, that the Romans, returning home after absence, _if their wives were at home, used to send a messenger unto them before, for to give warning and advertisement of their comming_. And we can understand that the primitive public for whom the fairy tales in question were composed found the incident of the violated taboo as thrilling and as full of "actuality" as a modern reader finds the latest sensational novel.
The belief that a mother and her new-born babe are peculiarly at the mercy of malevolent spirits is world-wide. In the fairy tales of Christian Europe the period of danger is terminated by baptism, until which time various precautions, such as burning a light in the chamber, must be observed.[82] In ancient Italy the danger ended when the child received its name, which, as Plutarch (_R. Q._ 103) informs us, was on the ninth day after birth in the case of boys, on the eighth in the case of girls. Until that day a candle was to be kept lighted, and the spirit Candelifera was to be invoked. On that day the child was purified (which indicates an original taboo), and received the _bulla_, mentioned by Plutarch (_R. Q._ 102), to preserve him henceforth from evil spirits and the evil eye. Whether the _bulla_ derived its virtue from the substances which were enclosed in it, as in a box, or from its moon shape, is uncertain. If the latter be the true explanation, we may compare the fact recorded by Plutarch (_R. Q._ 76), _that those who are descended of the most noble and auncient houses of Rome carried little moones upon their shoes_. The daughters of Sion also wore as amulets "round tires like the moon" (Isaiah, iii. 18). The moon-spirit sends disease or takes possession of the person who is "lunatick" or "moon-struck." But the spirit may be deluded, and will enter any moon-shaped object which the person attacked is wearing. The Chaldæans diverted the spirit of disease from the sick man by providing an image in the likeness of the spirit to attract the plague.[83] X.—SYMPATHETIC MAGIC.
The traveller who has little or no acquaintance with the language of the land in which he is, resorts naturally to the language of gesture, and mimics the thing which he wishes to have done. Primitive man communicates his wishes to Nature in exactly the same way: if he wishes to have game caught in the trap which he sets, he first pretends to fall into it himself. He has not learnt to "interrogate" Nature in her own language by means of experiment and crucial instances, but he has a presentiment of the method of Concomitant Variations and of the Substitution of Similars. If a thing is itself beyond his reach, he substitutes its counterpart, its image or its name, or something related to it or connected with it, in confidence that any changes he may work in the one will be accompanied by concomitant variations in the other. Hence the reluctance shown by many savages to allow their likenesses to be taken or their names to be known, as with the name or the likeness the man himself would pass into the power of the stranger.[84] So the Romans, as Plutarch informs us (_R. Q._ 61), kept the name of their tutelar god secret, for the same reason, as Plutarch acutely observes, as other nations kept the images of their gods chained;[85] and for the same reason, we may add, as the Romans forbade the living counterpart of the sky-spirit to leave the city, viz., lest he should pass out of their control.
In the same spirit, the Romans would not allow a table to be completely stripped of food (_R. Q._ 64) or a light to be extinguished (75): the action might produce permanent effects. The same feeling prevailed or prevails with regard to the table in Chemnitz, though it is regarded as a sign of death if a light goes out of its own accord.[86] The practice of allowing the spoils taken from an enemy to rust—a practice which Plutarch (37) cannot comprehend—was doubtless a piece of sympathetic magic: as the armour rusted, the enemy's power of armed resistance would diminish.
Another interesting instance of sympathetic magic lurks in _R. Q._ 32. The images which, as Plutarch says, were thrown into the river, represented a spirit of vegetation or a corn-spirit; and the object of plunging them into the river was thereby to secure that the crops should be correspondingly drenched with rain.[87] This rite also illustrates the origin of a conception which has its roots in sympathetic magic and yet exerts considerable influence in the civilised world—the conception of "legal fictions." The images, undoubtedly, were substitutes for human beings who were (as representing the corn-spirit) drowned in the Tiber. Human sacrifice, though exceptional, was not unknown at Rome in historic times, as appears from _R. Q._ 83; and the substitution of animals or of inanimate objects for human beings is not peculiar to Rome, but is the usual means by which the transition from the more to the less barbarous custom is effected. But the Romans, who were practical and logical to the extreme, who reduced magic to a system whereby they regulated their daily life, consistently enough also utilised sympathetic magic as a legal instrument.
For it would be a great mistake to infer from the ridicule poured by Cicero (_Pro Murena_, xii. 62) on the fictions of Roman law, that those symbolisms were puerile mummeries designed to benefit the legal profession at the expense of its clients. The clod of earth which was brought into court was no mere symbol, but gave to those who held it exactly the same control over the estate from which it came, as the image of a god gives to its possessor, or as the hair or clothing of a person who is to be bewitched gives to the worker of the spell.
A form of sympathetic magic which is practised by agricultural peoples all over the world is a "sacred marriage," whereby two spirits or their images, or their living representatives, are united, in order that their union may be sympathetically followed by fertility in flock and field. The ceremony of the "sacred marriage" frequently survives when its purpose has been forgotten, and then a popular explanation is invented for and by the folk.
The myth of Acca Larentia, given by Plutarch, _R. Q._ 35, seems to me a piece of folk-lore of this kind. To begin with, it is not uncommon to find in Greek and Asiatic cults, for instance,[88] a woman shut up with a god in his temple. And the result of this union is an increase in the agricultural wealth or fertility of the community. The same result appears in the "rationalised" explanation of the "sacred marriage" of Acca Larentia and Hercules, given by Plutarch. Further, an exactly similar tale is told of Hercules and Flora,[89] whose name shows that she is a spirit of flowering and blossoming vegetation, whilst her cult points to a realistic sacred marriage in which she took part.[90] Again, Acca Larentia and Flora were evidently felt to be spirits of the same class as the Dea Dia, for sacrifices were offered to them as part of the worship of the Dea Dia; and the Dea Dia was a corn-spirit, as is plainly shown by the _Acta Arvalium Fratrum_.[91] At the same time, though Acca Larentia, Flora, and the Dea Dia were all spirits of the same class, it is clear that they were distinguished from each other, for the Arval Brothers sacrificed to each of them separately and under distinct names. Finally, whether Acca Larentia had originally anything to do with the Lares seems doubtful,[92] and in spite of the fact that, in later times at any rate, she was called "the mother of the Lares," one cannot build much on the etymology which makes "Acca" mean "mother."[93] Certain it is, however, that the Arval Brothers, in worshipping the Dea Dia, began their famous and very ancient song with an invocation of the Lares.[94] It is plain, therefore, that there was from pre-historic times a tendency to associate the worship of the kindly Lares with that of spirits of the class to which the Dea Dia and Acca Larentia belonged. But the feast of the Larentalia (or Larentinalia), to which Plutarch alludes in _R. Q._ 34, was evidently a piece of ancestor-worship, and may therefore have been part of the worship of the Lares from the beginning. If this really be so, Acca Larentia will be a soul promoted to the rank of a spirit of vegetation.
The theory of sympathetic magic may perhaps afford the solution of Plutarch's problem (97), why they that would live chaste were forbidden to eat pulse. Plutarch suggests that as far as beans are concerned the reason may be that the Pythagoreans abominated them. This "symbol" of the Pythagoreans is well-known. Milton was inspired by it to put the case— "If all the world Should in a fit of temp'rance feed on pulse," and, according to Neanthes, quoted by Iamblichus in his life of Pythagoras, the prohibition extended even to treading down the growing bean; for, he informs us, Pythagoras inculcated the virtue of chastity so successfully that when ten of his disciples, being attacked, might have escaped by crossing a bean-field, they died to a man rather than tread down the beans: and when another disciple, who was shortly afterwards captured and brought before Dionysius, was bidden by that tyrant to explain the strange conduct of his fellows, he replied, "They suffered themselves to be put to death rather than tread beans under foot; and I will rather tread beans under foot than reveal the reason."
This is sufficiently mysterious; and the Pythagorean symbol can scarcely be said to explain the Italian prohibition. But though Plutarch has committed the error of defining _ignotum per ignotius_, he has nevertheless been led by a sound instinct, in comparing the two things together. Mr. Frazer (in _Folk-Lore_, i. 145 _ff._) has abundantly shown that many of the symbols of Pythagoras are but maxims of folk-lore which have gathered round the name of that mysterious philosopher. It would be nothing strange, then, if a piece of Italian folklore should be fathered on Pythagoras, for Magna Graecia was the home of Pythagoreanism.
Now the folk has at all times been fond of discovering resemblances between plants and other objects, as the common names of flowers, &c., sufficiently show. Further, according to popular notions, these resemblances do not exist for nothing: between the plant and the object it resembles there exists an occult but potent relation. The "Doctrine of Signatures" was a quasi-scientific organisation of this branch of folk-lore. "Turmeric has a brilliant yellow colour, which indicates that it has the power of curing jaundice; for the same reason, poppies must relieve diseases of the head," to take a couple of instances from the _Pharmacologia_ of Dr. Paris (p.
43). The ancient Romans who substituted an offering of poppy-heads for a sacrifice of human beings were not practising a childish cheat on the gods: on all sound principles of folk-lore they were offering a perfectly valid equivalent.
When then we find Porphyry, in his life of Pythagoras (§ 43), saying that Pythagoras bade his followers "abstain from beans as from human flesh," we may reasonably infer that beans were regarded, in the folk-lore of the day, as resembling some part of the human body, and as having a mysterious affinity with it. This conjecture receives some support from the fact that, whereas Porphyry explains all the other "symbols" as allegorical statements of various moral and civic duties, he explains this by a piece of folk-lore of the same kind as the modern popular belief that a hair kept in water will turn into an eel. The exact part of the body to which beans were supposed to bear a resemblance may be difficult at this distance of time to determine. The passage in Porphyry gives some hints.[95] A more interesting fact is that, according to Herodotus, ii. 37, the Egyptians had the same aversion to eating beans, and that Egyptian priests might not even look at a bean, so unclean was it considered. From this passage it is usually inferred that Pythagoras obtained this piece of his doctrine from the Egyptians; and V. D. Link (_Die Urwelt_, 225) sought to support the inference by the suggestion that the prohibition originally had reference to the sacred Egyptian bean, and was subsequently extended to the common bean (_faba vulgaris_). Pursuing this line of thought, we are at once struck by the fact that the sacred Egyptian bean (_nelumbium speciosum_) is a lotus; and the lotus, both as a plant and as a symbol,[96] carries our thoughts to India. We thus seem to see a piece of folk-lore migrating, along with the plant to which it was attached, from India to Egypt, from Egypt to Europe.
But when did this interesting migration take place? The prohibition was known pretty early in Sicily, for it makes its appearance in the fragments of Empedocles, who was born at Agrigentum, B.C. 490. We can, however, trace it back much earlier in Italy. There it dates from pre-historic times, for it was one of the taboos laid upon the flamen Dialis. And the idea that beans were human flesh is implied in the part which they played in the funeral ceremonies of the primitive Italians. That part is remarkably interesting. Plutarch tells us that "the solemne suppers and bankets at funerals for the dead were usually served with pulse above all other viands." This is a strange contrast to the aversion shown otherwise for eating beans, and it cries aloud for explanation.
Mr. E. S. Hartland, in _Folk Lore_, III. ii., has put forward the theory that the practice of sin-eating is the transformed survival of a savage custom of eating deceased kinsmen. Even those who dissent from his conclusion will not be able to deny that the custom does exist among savages, and that the object of cannibalism is to secure to the eater the courage, cunning, strength, &c., of the person eaten; nor will it be denied that on the first movement from savagery a tendency would manifest itself to substitute for the corpse anything which, according to the canons of savage logic, might be regarded as an equivalent substitute. The Italians, regarding beans as human flesh, might, we may conjecture, substitute beans; as the Bavarian peasant substitutes _Leichen-nudeln_. Before, however, we can regard this as anything more than a guess, we want proof that the Italians did really look upon the beans which they ate at funeral feasts as representative of the deceased. That proof is forthcoming, I submit, in the belief mentioned by Pliny (_N. H._, xviii. 30. 2) that "the spirit of the deceased was in the bean" (_mortuorum animæ sint in ea_, _i.e._, in the _faba_). And inasmuch as the law forbade them that would be chaste to eat pulse, it seems probable that the object of eating beans at funeral banquets was to convey the propagating powers of the deceased to his kinsmen.
If then the superstition about the bean was borrowed by the Italians, it must have been borrowed in primitive times; and we must think that the belief reached the Italians at the same time as the cultivation of the bean itself spread from its original (unknown) home. But, if we may trust comparative philology, the bean was probably known to the European Aryans before they divided into separate peoples, such as Slavs, Italians, &c. And thus we can catch glimpses of this piece of folk-lore on its travels in pro-ethnic times. But this, I confess, I find it rather hard to believe. Of course, if there were channels of communication by which the plant itself could travel in that "time long past," then by those same channels the superstition might be conveyed. But on the other hand, if one people could see a resemblance between the bean and some part of the human body, so might another. We do not imagine that because some of the taboos laid on the Mikado were the same as some laid on the flamen Dialis, they were therefore borrowed. Why, then, should we resort to the hypothesis of borrowing to account for the fact the flamen of pre-historic times was forbidden, exactly in the same way as the priests of ancient Egypt, to see or name a bean?
Folk-lorists will naturally inquire whether any traces of the conceptions and customs we have been examining can be found in fairy-tales.
I may therefore conclude by pointing out that in a Lithuanian tale, published and translated into German in the _Litauische Volkslieder und Märchen_ of A. Leskien and K. Brugman (p. 202 and p. 471), the bean has the same "signature" as it had in ancient Italy. Another story in the same collection (pp. 363-371 and 490-494) should also be noticed here: a maiden is given the heart of a dead man to eat, and two hours afterwards she bore a son, who could speak and run the moment he was born.
XI. ARYAN MARRIAGE.
In the _Romane Questions_[97] Plutarch has preserved for us various marriage customs, which raise the whole question, not perhaps of human marriage, but certainly of Aryan marriage. Has monandry always been the prevailing form among the Aryan-speaking peoples? Among those peoples has the family, as far as we can see or guess, from the beginning been patriarchal and agnatic?
As a starting-point for the discussion of this question, two propositions may be laid down as broadly true. The first is, that at some period or other, all Aryans have been in the habit of obtaining their wives (or some of their wives) by capture and by purchase. This fact may ultimately imply scarcity of native women, female infanticide, polyandry, and kinship through the female line; or it may prove to be perfectly compatible with a patriarchal and agnatic system. But it is a fact, and a fact of the first importance for this discussion. The second proposition that may safely be made is, that in historical times at least, the patriarchal form of family has always been the prevailing form amongst Aryan nations. The exceptions may be real, or they may be due to faulty observation; they may be of the highest importance, as being the sole indications of a prior and very different form of family life, or they may be merely local, transient departures from the normal patriarchal form, and so be insignificant or deceptive; but in any case, they are relatively so few as to leave it a practically true statement to say that the patriarchal family has been normal among the Aryans in historic times.
The evidence of the existence of marriage by capture is furnished by folk-lore. It is not necessary, nor is this the place to review that evidence; but the survivals of this form of marriage which are recorded in the _Romane Questions_ must be mentioned. The Romans, Plutarch says (_R.
Q._, 29), "_would not permit the new wedded bride to passe of herself over the door-sill or threshold, when she is brought home to her husband's house, but they that accompanie her must lift her up between them from the ground, and so convey her in_."[98] That the Romans themselves were dimly conscious of the real origin of this custom is implied in the first solution suggested by Plutarch, viz., that the ceremony was "in remembrance of those first wives whom they ravished perforce from the Sabines;" and Rossbach, in his great work on Roman marriage,[99] sees in the custom a survival from times when the bride, captured by force, was conveyed against her will into the house (or den) of her captor. Parallels to the Roman custom are to be found elsewhere. Among the modern Greeks the bride is lifted over the threshold, as it would be most unlucky if she touched it in crossing.[100] It is the most important wedding-guest among the Servians,[101] the bride's nearest relation in Lorraine,[102] who carries her in his arms from the waggon into her new home. Among the North Frisians the "bride-lifter" (_bridlefstr_) is a regular wedding-official.[103] The ceremony seems to have been known to the ancient Hindoos also.[104] The Finnish-Ugrians, whether they borrowed or lent, or independently developed the custom, uniformly practise it.[105] It is further noteworthy that the Finnish-Ugrians agree with the Romans, the Hindoos, and the Russians in this, viz., that the bride is not only carried over the threshold by some of the bridal party (not by the bridegroom) but is then caused by them "to sit upon a fliece of wooll."[106] The meaning and object of this strange proceeding were quite unknown to the Romans, who practised it in Plutarch's time, as they are to the Finnish-Ugrians and Russians who still observe the custom. Rossbach rightly compares the ancient Roman custom of making the _flamen_ and _flaminica_, when married _per farreationem_, sit upon the fleece of the sheep that was slaughtered during the wedding ceremonies;[107] he then refers to the Roman practice of sitting for a short time after prayer in silent meditation, and this he thinks explains the custom in question. But surely it leaves unexplained just that which requires explanation. Granted, that the Romans showed more reverence than, say the Scots whom Dr. Boyd can remember; still, are we to imagine them so rapt into "the mind's internal heaven" that they could sit down in the grease and the gore of a freshly-slaughtered sheep's fell, "nor heed nor see what things these be"? Why did they not sit down somewhere else?
A possible answer to this question may be found in the following considerations. Many savages consider themselves peculiarly liable on their wedding-day to the attacks of evil spirits. The Hindoos and the Finnish-Ugrians unanimously regard the seating of the bride on the fleece as the right time for exorcising evil spirits and purifying the bride: the Hindoos recite an incantation, the Esthonians clash daggers over her head, for iron is generally dreaded by spirits. It is, therefore, an easy inference that the fleece itself had purificatory powers; and, as a matter of fact, we find that the Greeks, at any rate, regarded a sheepskin in this light, for in the preliminary ceremonies of the Eleusinia was a purificatory rite which was known as the Zeus-fleece.[108] In the collection of the Hôtel Lambert[109] is a red-figured vase bearing a representation of this rite, in which the person purified is represented as crouching on the fleece.
In days when marriage by capture was real, and not merely symbolical, it was highly important that a strange woman should, immediately on entering the house, be, so to speak, spiritually disinfected, lest she should introduce unwelcome spirits into her new home; or, in the intimate relations which were to subsist between her and her captor,[110] should bring him into the power of strange and hostile gods. Hence the close adhesion of the ceremony of the fleece, long after its meaning was forgotten, to that of lifting the bride over the threshold.
But it was necessary not merely to detach the strange woman from her own gods, she must also be introduced to the gods of her new home. This introduction survived in the Roman custom, whereby _new wedded wives are bidden to touch fire and water_ (_R. Q._ 1).[111] That this custom goes back to the time when wives were captured is indicated by the words "are bidden:" the force which was at first necessarily used survives in this gentle compulsion. Parallels to this custom are forthcoming: the Hindoo bride, according to the Kâuçikasûtra (77. 16), was led thrice round the hearth in the bridegroom's house. Exactly the same ceremony not only was practised by the ancient Teutons, but is still observed in some places in North Germany and in Westphalia.[112] The Esthonians and Wotjaks still honour the custom.[113] The first thing a Servian bride has to do on entering her new home is to mend the fire,[114] and in ancient Greece she was taken at once to the hearth. It need hardly be said that the hearth is the abode of the house-spirit and the centre of the family worship. At Rome, we find from Festus,[115] the bride was also sprinkled with water. In Sardinia,[116] her mother-in-law empties a glass of water over her. Amongst the ancient Hindoos[117] this was the bridegroom's duty; with the Servians it is the function of the _Djewer_.[118] That this sprinkling was originally an introduction of the strange woman to the local water-spirit seems indicated by the fact that amongst the Servians the sprinkling is performed at the well, in the Unterkrain at the burn,[119] in Albania[120] at the village-spring, while in modern Greece the bride casts offerings into the spring.[121] The conventionally extravagant lamentation which was required of the Roman bride[122] is regarded by Rossbach (p. 329) as a survival of marriage by capture, and may be paralleled amongst many Aryan nations: with the Hindoos it was part of the officially prescribed programme;[123] in the Oberpfalz it is obligatory; in Bohemia and in Russia it is required by public opinion.[124] The evidence of folk-lore (so far as it is called for by the _Romane Questions_) that the Aryans obtained wives by capturing the women of other households or family groups than their own, has now been stated. It does not suffice to show that an Aryan was forbidden to marry a woman of his own household; but a wider survey of early Aryan wedding-customs would bring out this important fact, that however other parts of the ceremony vary, there is one which is always present, and which may be regarded as essential—that is the _domum deductio_, the bringing-home of the bride; and from this fact we may fairly draw the conclusion that normally, and—so strong is custom—probably uniformly, the bride and the bridegroom belonged to different households, and that the bride came to live in the home of the bridegroom.
Marriage by purchase does not happen to be mentioned in the _Romane Questions_, nor is it necessary to prove what is universally admitted. All that need be remarked here is that purchase was not necessarily preceded by a state of things in which capture prevailed; frequently it may have been a peaceable remedy for the grievances caused by capture, but quite as often it may have been practised side by side with capture from the beginning.
Further, the purchase, like the capture, of wives implies that husband and wife belonged to different households; and purchase indicates that the wife thus bought was the property of the husband, or at least that she was subject to him.
Let us now turn to the evidence showing that the family was patriarchal and agnatic. The evidence is furnished by the comparative study of law, especially the law regulating the order in which the relatives of a dead man shall succeed to his property. The order of succession prescribed by the earliest legal codes is strikingly similar among all the Aryan peoples; first, the deceased's male descendants to the third generation (his sons, grandsons, and great-grandsons); next, the male descendants of the deceased's father to the third generation (_i.e._, the deceased's brothers, nephews, and grand-nephews); then the male descendants of the deceased's grandfather to the third generation (_i.e._, his uncles, cousins, and their children); and finally, the male descendants of his great-grandfather to the third generation (_i.e._, his great-uncles, his first cousins once removed, and his second cousins once removed). Beyond these degrees, kin was not counted; and if no heir were forthcoming within them, the property went, amongst the Hindoos, to those of the same name as the deceased; amongst the Romans, to the members of his _gens_; in Crete, to the village community. What is the origin of this unanimous and well-marked distinction between the Near and the Remote Kin? Why were the _anchisteis_, "the nearest relations," as the Greeks technically named them, so sharply distinguished from the others?
To begin with, it is clear that the distinction, being common to all the Aryans, was not developed subsequently to their dispersion, but is pre-historic—indeed, pro-ethnic. Hence it follows that the distinction was not the work of any legislator or of any individual; it could not have been a law enacted by a lawgiver and enforced by the State under pains and penalties, for the simple reason that the Aryans, previous to their dispersion, were not organised into a State, and had no government to issue or execute laws. But before Law, Custom was, and "Kin and Custom go together and imply each other, as do Law and State. Law is the enactment of the State—Custom is the habit of the Kin. And as Custom precedes Law, so the State is preceded by kin or sib associations. The earliest form of the State is modelled on that of the sib associations out of which it is developed, and the first laws promulgated by the State are but the old customs committed to writing."[125] In what pro-ethnic Aryan custom, then, are we to seek the origin of the clear and deep-cut line between the Near and the Remote Kin? The answer is furnished by what is known among the Slavonians as the house community, and to Anglo-Indian lawyers as "the joint undivided family." As it exists now in India, the joint undivided family consists, or may consist, of the sons, grandsons, and great-grandsons of a man (deceased), who, on the death of their common ancestor, do not separate, but continue to live on the undivided estate and worship their deceased ancestor as their house-spirit.
The family, as defined by the Judicial Committee of the Privy Council,[126] is "joint in food, worship, and estate."
Now, the relatives whom the earliest Aryan codes, the laws of the Twelve Tables, the laws of Solon, of Menu, the Gortyn Code, &c., specify as a man's heirs-at-law are in every case precisely those relatives who belonged, or might at some time have belonged, to the same joint undivided family as the deceased. It is worth while to note that at different times a man might belong to four different joint undivided families: he might be born into a family which still united in worshipping the spirit of his great-grandfather: and thus his cousins, his first cousins once removed, and his second cousins once removed, would dwell in the same household with him. His grandfather might then die and become a house-spirit: in that event, his grand-uncle (and descendants) would have to set up a family of his own, for they only can belong to a joint undivided family who are descended from a common house-father. Now, my grand-uncle, being the brother of my grandfather, is not descended from my grandfather, therefore cannot worship his spirit, therefore cannot belong to the joint undivided family which worships my grandfather's spirit. On the other hand, the family, of which my (deceased) grandfather is the house-spirit, includes my grandfather's descendants to the third generation, _i.e._, includes not only my cousins, but also their sons. This (cousins' sons) is the limit of the second joint undivided family to which it is possible for a man to belong. Thirdly, when my father becomes a house-spirit, and is worshipped by his children's children, I dwell in the same household as my nephews and grand-nephews. Finally, when I am gathered to my fathers, I dwell, in the spirit, with my sons, grandsons, and great-grandsons.
Here we obviously have the key to the order of succession prescribed by the earliest Aryan codes: my own descendants (if any) are called first, because they constitute the joint undivided family, with which, at the time of dying, I am presumably dwelling. My father's descendants come next, because that was the family I had previously belonged to; and on the same principle