or in its apparent place, and minds of different casts will differ as to the branch of the alternative which ought to be selected. If the English law is ever to assume an orderly distribution, it will be necessary to prune away the legal fictions which, in spite of some recent legislative improvements, are still abundant in it. The next instrumentality by which the adaptation of law to social wants is carried on I call Equity, meaning by that word any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles. The Equity whether of the Roman Prætors or of the English Chancellors, differs from the Fictions which in each case preceded it, in that the interference with law is open and avowed. On the other hand, it differs from Legislation, the agent of legal improvement which comes after it, in that its claim to authority is grounded not on the prerogative of any external person or body, not even on that of the magistrate who enunciates it, but on the special nature of its principles, to which it is alleged that all law ought to conform. The very conception of a set of principles, invested with a higher sacredness than those of the original law and demanding application independently of the consent of any external body, belongs to a much more advanced stage of thought than that to which legal fictions originally suggested themselves. Legislation, the enactments of a legislature which, whether it take the forms of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. It differs from Legal Fictions just as Equity differs from them, and it is also distinguished from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. The legislature, whatever be the actual restraints imposed on it by public opinion, is in theory empowered to impose what obligations it pleases on the members of the community. There is nothing to prevent its legislating in the wantonness of caprice. Legislation may be dictated by equity, if that last word be used to indicate. some standard of right and wrong to which its enactments happen to be adjusted; but then these enactments are indebted for their binding force to the authority of the legislature and not to that of the principles on which the legislature acted; and thus they differ from rules of Equity, in the technical sense of the word, which pretend to a paramount sacredness. * PART II PERSONS CHAPTER IX KINSHIP SECTION 1. THE TRIBE SECTION 2. THE CLAN BY J. W. POWELL CHAPTER X THE PATRIARCHAL THEORY BY GEORGE E. HOWARD CHAPTER XI TOTEMISM AND EXOGAMY SECTION 1. EXOGAMY AS A SURVIVAL OF GROUP MARRIAGE BY JOSEF KOHLER SECTION 2. ORIGIN OF EXOGAMY BY ANDREW LANG CHAPTER XII WOMEN IN PRIMITIVE SOCIETY By L. T. HOBHOUSE CHAPTER XIII MARRIAGE SECTION 1. FORMS OF MARRIAGE BY JOSEF KOHLER SECTION 2. TRIBAL MARRIAGE LAW BY J. W. POWELL SECTION 3. RELIGIOUS BASIS OF THE FAMILY BY FUSTEL DE COULANGES SECTION 4. MARRIAGE IN GREECE AND ROME BY FUSTEL DE COULANGES PATRIA POTESTAS BY HENRY S. MAINE CHAPTER XV WOMEN AND MARRIAGE UNDER CIVILIZATION BY L. T. HOBHOUSE CHAPTER XVI CHILDREN AND THE FAMILY BY JOSEF KOHLER CHAPTER XVII ADOPTION AND ARTIFICIAL RELATIONSHIP SECTION 1. SURVEY OF ARTIFICIAL RELATIONSHIPS SECTION 2. RELIGIOUS BASIS OF ADOPTION BY FUSTEL de CoulangES CHAPTER XVIII SLAVERY SECTION 1. HISTORICAL IMPORTANCE OF SLAVERY BY JOSEF KOHLER SECTION 2. THEORIES OF SLAVERY CHAPTER XIX CAPITIS DEMINUTIO BY RUDOLPH SOHM CHAPTER XX EXISTIMATIONIS MINUTIO BY RUDOLPH SOHм CHAPTER IX KINSHIP 1 SECTION 1 THE TRIBE So far as is now known, tribal society is everywhere based on kinship. In the simplest form of which there is any knowledge, the tribe consists of a group of men calling one another brother, who are husbands to a group of women calling one another sister. The children of these communal parents call all the men fathers, and all the women mothers, and one another brother and sister. In time these children become husbands and wives in common, like their parents. Thus the kinship system recognizes husbands and wives, fathers and mothers, sons and daughters, brothers and sisters, and grandparents and grandchildren. The only kinship by affinity is that of husband and wife. The only collateral kinships are those of brother and brother, sister and sister, and brother and sister. The lineal kinships are father and son, father and daughter, mother and son, mother and daughter, with grandparents and grandchildren also recognized. There is no recognized father-in-law, mother-in-law, brother-in-law, nor sisterin-law; there is no uncle, no aunt, no cousin, no nephew, no niece recognized. It will thus be seen that all of the collateral kinships of uncle and aunt and nephew and niece are included in the lineal kinship of parent and child, and cousins of whatever degree are reckoned as brothers and sisters. Let any person be designated as Ego. Then all the men of the antecedent generation are his fathers, and all the women his mothers; all the males of his own generation are his brothers, and all the females his sisters; and all the males of the following generation are his sons, and all the females his daughters. 1 [By J. W. PoWELL. Reprinted, by permission, from the 3d Annual Report of the American Bureau of Ethnology (The Smithsonian Institution).] |