Folk-Lore/Volume 2/Recent Research on Institutions

Folk-Lore Volume 2, 1891
Number 4 (December)
Recent Research on Institutions.—
by G. Laurence Gomme, Esq., F.S.A.


1. The History of Human Marriage. By Edward Westermarck. London: Macmillan, 1891.
2. The Women of Turkey and their Folk-lore. By Miss Lucy Garnett. With chapters on the Origin of Matriarchy, by J. S. StuartGlennie. London; Nutt, 1891.
3. Notes on Land Tenure and Local Institntiuns in Old Japan. By the late Dr. D. B. Simmons; edited by J. H. Wigmore. Asiatic Society of Japan.
4. Origin of Property in Land. By Fustel de Coulanges. With an Introductory Chapter on the English Manor, by W. J. Ashley. London: Sonnenschein, 1891.
5. Recherches sur l'Origine de la Propriété Foncière et des Moms de Lieux habités en France. Par H. D'Arbois de Jubainville. Paris: Thorin, 1890.
6. Modern Customs and Ancient Laws of Russia. By Maxime Kovalevsky. London: Nutt, 1891.
7. Lectures on the Growth of Criminal Law in Ancient Communities. By Dr. Richard R. Cherry. London: Macmillan, 1890.
8. Forty Years in a Moorland Parish. By Rev. J. C. Atkinson. London: Macmillan, 1891.
9. Folk-lore Congress, 1891. Customs and Institutions Section.

INSTITUTIONS, as at present undefined, cover a wide field of research, as may be gathered by a glance at the titles of the works we are called upon to examine, in order to take stock of our present position. Definition in this, as in other branches of folk-lore, is sadly needed. We should know what an institution is as distinct from custom and usage. All custom and usage is certainly not institutional in its character and scope; as certainly we think institutions are developments from custom and usage, and not vice versâ.

Much institutional work is and has been sadly neglected by students; while some departments have been almost overwhelmingly attended to. Marriage comes under the latter category. Treatise after treatise has appeared often only to be relegated to the accumulated mass of useless literature. But the effect of this constant attention to the subject of marriage as a matter of research is, that it is lifted out of its position as one of the elements of human institutions, and made to stand by itself as something quite apart from everything else. But is this right? Has marriage no sort of relationship to other institutions? This question must be answered by noting what is going on in the studies relating to the early history of man.

It is well known that these depend upon the comparative method of study for their chief results. So much has been done by this method that it seems almost too late to suggest that a very important element in this study has been almost entirely overlooked. The work of comparison has hitherto been chiefly occupied with certain definite characteristics of early man: as, for instance, animism in the researches of Dr. Tylor; bride-capture in Mr. McLennan's great work; or with certain stages in man's social development, as, for instance, totemism. Wherever examples of these or other characteristics have been found they have been carefully considered and classified, so that we may get a sufficiently wide area of observation from which to draw some general conclusions as to the attitude of early man upon these subjects. But in thus grouping the practices of early man we lose sight of one very important source of fresh evidence. When we subtract a particular custom of a tribe to compare it with a similar custom subtracted from another tribe, we have hitherto taken but little count of the place this custom so subtracted occupies in the life of the respective peoples; we have never ascertained whether it is a dominant factor in tribal custom or a subordinate factor; whether it is on the line of further development or on the line of decay, and what relationship it bears to other customs of the tribe or people where it obtains. Just as in excavations of prehistoric tumuh, or in geologic formations, it is necessary to notice the strata and exact position of the various objects as they come to light, so is it necessary in every excavation into human society to note the strata and exact position of the various phenomena as they are brought into prominence. I do not suggest that such a line of inquiry is needed in order to substantiate conclusions already arrived at. I do not suggest even that before the comparison of custom with custom was undertaken the comparison of tribe with tribe should have been dealt with. I merely wish to put it forward as a proposition which is worth while considering at this stage in the history of the comparative sciences: that some attention should be given to the study of comparative custom based upon the examination of group with group.

Both Mr. Spencer and Dr. Tylor have seen the importance of this aspect of comparative custom. The compilation of the elaborate tables of Descriptive Sociology by Mr. Spencer supplies us with a very good example of the method required for such a study; and Dr. Tylor's recent attempt to elaborate a more scientific method for the study of institutions is the most valuable contribution to comparative custom which has yet been made. By the process so carefully elaborated by Dr. Tylor we are taught to classify the relationship of one custom or belief to another, to pick out what we may call the natural adhesions to any given custom or group of customs. That is to say, given a custom A, we should expect to find associated with it in close relationship customs B, C, and D. But is this all? I venture to think that we may even go a step further and declare that other customs, say, E, F, and G, cannot exist side by side in natural co-relationship with the primary group A, B, C, and D. A very important conclusion follows from this. If in any given country or land two such groups of custom are found to exist side by side the phenomenon must be due to some abnormal conditions which need explanation and investigation. The stress I am inclined to lay upon the phenomenon of inconsistency in custom and belief, as opposed to natural association of custom and belief, has never, so far as I am aware, been confirmed by other writers, but so far as my own researches have tested it in some limited spheres, it presents to the inquirer a set of facts which need to be taken into account somewhere.

What is here stated of comparative research generally is pre-eminently applicable to the case of studies on marriage institutions. After the epoch-making work of Mr. McLennan, and the laborious tabular results of Mr. Lewis Morgan, no work of such importance has been issued as that of Mr. Westermarck's. And yet Mr. Westermarck seems to approach his study of human marriage with less than usual emphasis on the adjective which he for the first time introduces, and also with less attention to the institution of marriage as a part only of the social system of humanity. He insists upon the non-gregariousness of early man, and turns for proof of this to the wretched outcasts of savage society, such as the Veddahs, Bushmen, etc., who have no trace of tribal organisation. But is the absence of tribal organisation a necessary proof of nongregariousness and of family interdependence? The use of the word family to describe the associations of the sexes among the rudest specimens of modern man seems peculiarly unfortunate, and it leaves out of consideration the local organisation which is at the bottom of these associations of human beings. Mr. Darwin has taught us the influence of locality in the development of species, so that on the biological evidence, upon which Mr. Westermarck properly lays so much stress, it is not the small separate groups of human beings, wrongly termed families, but the whole local group which must be considered as the starting point. It is the local group of Bushmen, of Veddahs, of Victorian savages, of ancient Finns, etc., which first present themselves for observation and for inquiry, and which make up unities in anthropological data. The smaller inside groups are formed by causes, and kept up by causes, of which at present we know but little, except that they are dependent upon the larger local group; they are not primary, but secondary phenomena in the history of institutions.

Given, then, the local group with no tribal organisation, Mr. Westermarck's evidence does not greatly alter Mr. McLennan's conception of the horde, if we cut out of the equation Mr. McLennan's unfortunate and misleading use of the term promiscuous. Temporary monandry within the local horde is the feature which Mr. Westermarck's evidence leads us to identify as the earliest form of human association.

Of the tremendous step from this to tribal society based upon blood kinship, Mr. Westermarck finds little to say, except by way of criticism of Mr. McLennan's theories. But in this criticism the point is missed, that, although the fact of blood kinship between both parents and offspring could never have been unknown to man, the use of that fact for the purposes of social organisation is altogether a different matter. At this stage human marriage enters into close and intimate relationship with other social institutions—it is, in point of fact, for the first time an institution, a custom, that is, used by man for social or political organisation. And at this stage I venture to think marriage cannot be scientifically considered apart from its surroundings in the society of which it forms a part.

If these remarks express one of the critical objections against Mr. Westermarck's method, let it not be understood that they are intended to go further than to point out what is conceived to be an omission from a work which is called History of Human Marriage—an omission which might yet be supplied from the data given by Mr. Westermarck himself All that can be said on marriage in its several forms, real and symbolical, seems to have been said in this splendidly exhaustive treatise. The way is therefore prepared for marriage to be treated as part and parcel of a larger group of institutions. In so far as it is founded upon natural instincts in man its features may be traced through all human societies; in so far as its forms have been affected by social requirements its features must differ according to the grades of social development with which it is associated.

Mr. Westermarck lays almost too much stress upon some of the natural features of marriage, at all events in so far as they are used as materials for its history. For instance, man as the nourisher of his wife and offspring is considered at some length, and evidence is produced from a great number of savage and barbarous peoples, ranging from the Fuegians up to the Arabs. When, therefore, we meet in folk-lore such a custom as Miss Burne mentions as obtaining in Shropshire—"if a husband failed to maintain his wife she might give him back the wedding-ring, and then she would be free to marry again" (p. 295)—how are we to arrange and classify this survival? The effect of such a practice would lead us back to a state of temporary monandry, and would not account for the beginning of permanency in the marriage-tie. If the condition of man as the nourisher is put forward as a vera causa for the hypothesis that in primitive times man, woman, and children, formed a recognizable social unit, the supporters of such a hypothesis must answer the obvious objection suggested by the piece of Shropshire folk-lore, that when he ceased, either from inability or caprice, to nourish, the social unit of which he was a necessary element went to pieces.

On the other hand, some of the forms resulting from the effects of a conscious use of natural marriage for social organisation are scarcely treated with sufficient length. Thus, the bars to marriage between members of different races are set forth in some detail, and the evidence is most important; but the corresponding evidence of marriage between people of different races is wholly ignored, though Mr. Crawfurd, from examples he found in the Malay Archipelago and elsewhere, deemed this intermarriage between different races to be one of the fundamental data for the proper consideration of ethnological problems, and Mr. Stuart Glennie has used the same argument, though without adducing any proof, in his racial hypothesis as to the origin of the matriarchate. One famous, though not pleasant detail in the history of marriage is dealt with by Mr. Westermarck with refreshing power, namely, the jus primæ noctis. Since Schmidt's work on the subject it has been assumed that there was nothing more to be said, but Mr. Westermarck proves that a review of this treatise is necessary in order to pick out what particular theory of feudal law Schmidt has succeeded in demolishing without necessarily destroying the evidence for a rule older than feudal law.

It is impossible to touch upon the question of the ethnology of custom and institutions without bearing in mind how much that subject came to the front at the recent Folk-lore Congress, and in the paper by Dr. Winternitz on Aryan marriage rites and ceremonies, a brave attempt was made to separate off from the collective body of marriage rules those which might with propriety be classed as Aryan. The point is one of some importance in view of such a treatise as Mr. Westermarck's. If ethnic peculiarities are stamped upon the rules of marriage, the fact supplies us with a strong argument for the position I have advanced, that marriage as an institution must be considered in conjunction with the institutions with which it is connected.

Mr. Westermarck lays great and very proper stress upon one such consideration in the history of marriage, namely, the effect of common residence in producing prohibitory laws against intermarriage. Now, close living together, in the sense supplied by Mr. Westermarck's admirably arranged evidence, is one of the most important elements in the history of institutions, and it is the basis for the development of many of the principles underlying the formation of the village community. Worked back among the various tribes of savage man we find it incidental everywhere to the agricultural stage of economical development, though, of course, existing in varying degrees of perfection. That agricultural life is more primitive than pastoral life is one of the facts which, I think, will be proved by the history of the village community whenever that history is written. And alongside of this must be considered the history of the conception of incest—one of the most important chapters of which Mr. Westermarck has given us.

It is impossible, perhaps, to do more than touch upon some of the issues brought about by Mr. Westermarck's book. That I am concerned more with the institutional side of marriage has made me say more in apparent opposition to Mr. Westermarck's views than, perhaps, I am really prepared for. Undoubtedly he is right in stating that students of ethnography cannot be too comprehensive in their search for materials; but in analysing his evidence, as I am doing at some length without the possibility of producing the results in this review, I am struck with the remarkable manner in which he has managed to piece together in good literary form so complex a study. The power is almost to be dreaded. It carries with it something more than the bare equations of a scientific problem, and it is this "something more" which has to be guarded against by the student.

An examination of some of the details of such a work as Mr. Westermarck's is the only possible means whereby to test the value of its general conclusions. If we dispute his initial conclusion that "among our earliest human ancestors the family, not the tribe, formed the nucleus of every social group, and in many cases was itself, perhaps, the only social group", it is more, perhaps, a question of terminology than an actual difference of opinion on the vital question of the starting point of human society, because it is conceivable that if Mr. Westermarck had continued his view somewhat further, instead of stopping short at the temporary connection between the sexes, he would have seen that the local group was the necessary antecedent to even that temporary connection. We implicitly follow his lead to the next stage, where he detects that the “sociability of man sprang in the main from progressive intellectual and material civilisation”, and we are prepared to cut out communal marriage from the series of early developments of marriage forms, and translate it to a place where it must be considered the special outcome of marriage considered from its institutional side. On the remaining points he has considered, all we have to observe is that they belong rather to the natural history of marriage than to the institutional, and that while they exhaust all that is to be said, at all events for some time to come, under that head, they form only a part of the history of human marriage as a whole—a necessary and vital part—which must be studied and understood before the other part should be approached.

To pass from Mr. Westermarck to Mr. Stuart Glennie is to emphasise the fact that while the former bases his researches upon a wide and exhaustive series of minute details, carefully arranged and tabulated, the latter bases his researches upon brilliant suggestions coupled with an intense belief in the validity of his arguments, without the necessity of providing proofs. One should always be grateful for suggestions. That somewhere in the history of marriage Mr. Stuart Glennie’s conception of the matriarchate will find a place is, I venture to think, certain. But what place? is the all-important question. With Mr. Nutt’s and Mr. Jacobs’ criticisms in these pages I agree on the whole. Undoubtedly the facts of ethnology must be brought into the question of the origin of marriage institutions; undoubtedly the conquest and serfdom of a people is a factor to be reckoned with, too. Mr. Stuart Glennie has struck the right line when he suggests, by means of Miss Garnett's admirable collection of folk-lore, that sex in folk-lore is a subject to be noted and taken count of, and it seems to me quite possible that the women of a conquered race, feared as they often were by their conquerors as the devotees of the local deities, might use that fear under some conditions to establish a place of power which has left its mark on the history of marriage. Beyond this it is not at present possible to go. This, I think, is the missing link in Mr. Stuart Glennie's line of argument, and he would do well to consider it. That without this essential link he should yet have chalked out the path of a new line of research is what the critic has to note, and to thank Mr. Glennie for. What we have to guard against and warn others about is the tendency to consider off-hand that this new line leads to vast stretches of undiscovered country, whereas it may only lead to a cul de sac, with the undiscovered country stretching far beyond—in view, but unattainable by this road.

It will not be surprising to those who have followed thus far that I am prepared to pass from marriage institutions to village institutions. In Mr. Wigmore's admirable treatise on the Japanese system of land tenure there is much to show the relationship between the two. The village unit of Japan is, of course, not the small monogamous family, but the group of descendants from a common ancestor under the lordship of the family head—a group produced by the long use of the fact of blood-kinship and m.arriage ties, resulting in the evolution of a political unit. Mr. Wigmore treads upon ground which is made familiar to us now by the writings of such masters as Maine, Seebohm, and others, but it is not certain whether the use of common terms in such investigations does not lead to conclusions not quite in accord with the facts. Feudalism, for instance, is a dangerous term to use outside of Europe, though it is difficult to suggest a better. One of the most interesting sections of this treatise is that on serfdom, and it recognises the influence of race traditions in determining some points in the history of Japanese serfdom. We are glad to observe that an influential committee on ethnography has been formed by the Asiatic Society of Japan, who have already issued a code of questions relative to local institutions, the answers to which, if properly gathered, should prove of the utmost value. We hope to hear more of Mr. Wigmore's Japanese researches, and we should like to see his code extended to other yet unexamined countries under the sway of the Asiatic Society.

Mr. Ashley has done good service in editing Fustel de Coulanges' treatise. All that this distinguished scholar wrote is worth preserving. He disposes of the "mark theory" in Teutonic institutions, but Mr. Ashley seems to think that this act of destruction, very necessary we admit to the proper study of institutions, is to be identified with an act of construction whereby the old theory of Roman origins is once more advanced. Mr. Ashley is angry with Professor Rhys for suggesting that philological evidence proves the late survival of a non-Aryan race of people; he is contemptuous about my own researches to prove the survival of non-Aryan elements in English village institutions. But, with the "mark theory" cleared out of the way, it is not too much to assert that room has been made for the pre-Celtic theory, if I may so term it. Fustel de Coulanges could see no history outside the evidence of documents. The leges barbarorum were to him the basis and superstructure of his work. But there is danger in this limitation. For instance, in criticising Von Maurer, M. Fustel de Coulanges lays too much stress upon the term and status of "tenant". What were these tenants? Something more, most certainly, than the lawyers' conception of them would enable us to determine. Tenants they may have been, because of the over-lord imposed upon them by political movements, of which they took little heed; but tenants with a history that began long before lawyers were known. It is that history which Mr. Ashley and his school ignore, by post-dating it to the times of legal treatises.

It is quite impossible to do justice to M. D'Arbois de Jubainville's learned treatise. It takes up the question of the origin of property in land from a different standpoint to that of Fustel de Coulanges, and the author brings to his task the rare combination of a thorough knowledge, both of philological and historical science. His derivations of place-names in France during the Celtic and Roman periods, showing that places are named from their owners, are invaluable to the student, and few things are better worth the attention of English philologists than the corresponding evidence, if it exists, in Britain. The chapters on the inequality of the people of Gaul at the time of Cæsar's conquest, and on agriculture in Gaul, are particularly interesting. Of course the old questions crop up: who were the client class of the people of Gaul? who were the agriculturists? Cicero's estimate of the Gaul's objection to manual labour, objected to by our author on the score of oratorical exaggeration, might be justified by more than one comparison with haughty Aryan tribes living with a subject non- Aryan class at their feet. But the question is ever present to the student of European social phenomena, as to how far he may legitimately interpret evidence, so overladen with a political terminology, which is still a living terminology, by the light of evidence which has no such difficulty to contend with. I confess that M. D'Arbois de Jubainville's treatise does not lessen this difficulty, because by throwing such a powerful light upon historical evidences it pushes into the background what is to be gained by comparative evidences.

If Professor Kovalevsky's and Dr. Cherry's lectures do not obtain a very long notice in order to show their connection with the best recent literature of institutions, it is not because they are otherwise than fully worthy of it. The study of Russian marriage by Professor Kovalevsky helps towards the elucidation of the Aryan history of marriage custom, and use has been made of the popular ballads, old legends, and folk-tales in the illustration of this interesting and obscure section of the subject. But here also the question of ethnology crops up; and the question of wife-purchase, as exemplified by the Russian evidence, needs careful consideration by those who are inclined to think that races do not commingle by means of marriage. Dr. Cherry deals with a somewhat uninviting subject, but he succeeds in supplying unlooked-for help in the elucidation of one of the most interesting of folk-lore problems. His object has been to compare the early ideas of several nations as to crimes and their punishment; and he has selected legal systems as far apart from and as much independent of each other as possible, with a view of showing that identity of usage did not arise from the adoption by one nation of the laws or institutions of another, but rather from the inherent principles of human nature. Dealing with Irish, English, and Roman penal law, he turns then to Hebrew and Mohammedan law, and succeeds in establishing some most important facts. We think he proves his main thesis named above, but it is open to question whether his choice of examples is best for his purpose. He would have found more to the point in the lex talionis of the Afghans, in the laws of Sumatra, and in the code of Mu'ung Ihai of Siam, where he would have found proofs which are not tainted by the possibilities of borrowing, which some scholars will be inclined to urge against him in respect of the examples he has chosen. But his treatise is an important contribution to that portion of the subject it is designed to illustrate, and it presents some singularly clear issues to those of us who have been dealing with the more extended area which unfortunately almost all branches of folk-lore compel us to travel over.

Dr. Atkinson's title for his book would suggest its association with institutional research, and in a quiet, effective way one gets to know how much folk-lore is bounded by its wrappage of village life. I have urged before now that folk-lore belongs to individuals who are now members of a parish or village institution, and that its originals belonged to individuals who were members of a social group. Dr. Atkinson's book helps towards a realisation of this view, and, apart from the freshness and reality of his narrative, this seems to me not an unimportant consideration to apply to the subject. His witch notes are particularly valuable for some details which are not generally given by explorers less careful to note scientifically than Dr. Atkinson.

Is it then, we may fairly ask, admitted that customs and institutions are within the domain of folk-lore? Because they formed a section at the recent Congress it does not entitle us to say that in future they must be reckoned with as part of folk-lore. But at least, no one will doubt my own opinion if they follow the observations I have ventured to make in the course of this report. I should like to emphasise this opinion by pointing out that the range of traditional practices and ideas is not completed without admitting customs and institutions; and that frequently in types of early society, and in savage society of to-day, one cannot get at belief and myth without approaching them through the institutions to which they are attached. Dr. Codrington's valuable researches into the folk-lore of the Melanesians, Major Ellis's books on the Tshi and Ewe people, are examples of the intimate connection between institutions and belief. In totemism we may see how the two subjects run into each other without the possibility of divorce. The belief in the power of animals, the mythic conception of animal life in general, is in some places developed into a system which acts powerfully on the social organisation. In totemism the connection is apparent. In other branches of folk-lore it has been left out of account too frequently, and we hope that the new departure will help outsiders to see that what they are apt to scoff at as the Fairy-tale Society deals scientifically with subjects which, when studied together, can take us back to the beginning of our race.